EXHIBIT 4.4.2
(Multicurrency--Cross Border)
SCHEDULE
to the
ISDA Master Agreement
dated as of November 24, 2006
between
Claymore MACROshares Oil Up Holding Trust ("Party A")
and
Claymore MACROshares Oil Down Holding Trust ("Party B")
Part 1
Termination Provisions
----------------------
(a) "Specified Entity" means: Not Applicable
(b) "Specified Transaction" shall have the meaning specified in Section 14
of this Agreement.
(c) Events of Default and Termination Events. The following Events of
Default and Termination Events shall apply to Party A and Party B as
set forth below:
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Applies to Applies to
Event of Default/Termination Event Party A Party B
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Section 5(a)(i) Payment Default No No
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Section 5(a)(ii) Breach of Agreement No No
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Section 5(a)(iii) Credit Support Default No No
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Section 5(a)(iv) Misrepresentation No No
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Section 5(a)(v) Default Under Specified Transaction Yes Yes
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Section 5(a)(vi) Cross Default No No
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Section 5(a)(vii) Bankruptcy Yes Yes
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Section 5(a)(viii) Merger Without Assumption No No
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Section 5(b)(i) Illegality Yes Yes
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Section 5(b)(ii) Tax Event No No
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Section 5(b)(iii) Tax Event Upon Merger No No
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Section 5(b)(iv) Credit Event Upon Merger No No
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Section 5(b)(v) Additional Termination Events No No
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(d) The "Automatic Early Termination" provision of Section 6(a) will not
apply to Party A and will not apply to Party B.
(e) Payments on Early Termination. Notwithstanding the provisions of
Section 6 of the Master Agreement, no Event of Default or Termination
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Event shall entitle either party to designate an Early Termination Date
under any Transaction hereunder, and all Transactions shall continue in
accordance with their terms following any Event of Default or
Termination Event.
(f) "Termination Currency" means U.S. dollars.
(g) Additional Termination Event. No "Additional Termination Events" will
apply for purposes of Section 5(b)(v.
(h) Termination Payments. Any payment or payments due upon the early
termination of this Agreement or any Transaction hereunder shall be
payable on the Early Termination Date.
Part 2
Tax Representations
-------------------
(a) Payer Tax Representations. For the purposes of Section 3(e) of this
Agreement, Party A and Party B will each make the following
representations to the other:
It is not required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account of
any Tax from any payment (other than interest under Section 2(e),
6(d)(ii) or 6(e) of this Agreement) to be made by it to the other party
under this Agreement. In making this representation, each party may
rely on:
(i) The accuracy of any representations made by the other party
pursuant to Section 3(f) of this Agreement;
(ii) The satisfaction of the agreement of the other party contained
in Section 4(a)(i) or 4(a)(iii) of this Agreement and the
accuracy and effectiveness of any document provided by the
other party pursuant to Section 4(a)(i) or 4(a)(iii) of this
Agreement, and
(iii) The satisfaction of the agreement of the other party contained
in Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation where
reliance is placed on clause (ii) and the other party does not deliver
a form or document under Section 4(a)(iii) by reason of material
prejudice to its legal or commercial position.
(b) Payee Tax Representations.
(i) For the purposes of Section 3(f) of this Agreement, Party A
makes the following representations to Party B.
It is a partnership for U.S. tax purposes.
(ii) For the purposes of Section 3(f) of this Agreement, Party B
makes the following representations to Party A.
It is a partnership for U.S. tax purposes.
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Part 3
Documents to be delivered
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(a) For the purpose of Sections 4(a)(i) of this Agreement, each party
agrees to deliver the following documents, as applicable:
Party required Form/Document/Certificate Date by which to be delivered
to deliver
documents
Party A and An executed United States Service (i) Upon execution and delivery of this
Party B Service Form W-9 (or Agreement; (ii) promptly upon
successor thereto). reasonable demand by the other party;
and (iii) promptly upon learning that
any Form W-9 (or any successor thereto)
has become obsolete or incorrect.
(b) For the purposes of Section 4(a)(ii), the other documents to be
delivered are as follows, which shall be covered by the representation
in Section 3(d) of the Agreement if specified:
Party required Form/Document/Certificate Date by which to Section 3(d)
to deliver be delivered representation
documents
Party A and Any documents required by the Upon execution and Applicable.
Party B receiving party to evidence the delivery of this
authority of the delivering Agreement and
party for it to execute and deliver applicable
this Agreement, the Confirmation to Confirmation.
which it is a party, and to evidence
the authority of the delivering
party to perform its obligations
under this Agreement and the
Confirmation.
Party A/Party B Legal opinions satisfactory to the Upon execution and Not Applicable.
other party. delivery of this
Agreement.
Part 4
Miscellaneous
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(a) Address for Notices. For the purpose of Section 12(a) of this
Agreement, the addresses for notices and communications to Party A and
Party B shall be as follows:
TO PARTY A:
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Claymore MACROshares Oil Up Holding Trust
c/o Investors Bank & Trust Company
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx XxXxxxx
Facsimile: (000) 000-0000
TO PARTY B:
Claymore MACROshares Oil Down Holding Trust
c/o Investors Bank & Trust Company
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx XxXxxxx
Facsimile: (000) 000-0000
(b) Process Agent. For the purpose of Section 13(c) of this Agreement:
Party A appoints as its Process Agent: Not applicable.
Party B appoints as its Process Agent: Not applicable.
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For purpose of Section 10(c) of this Agreement:
(i) Party A is not a Multibranch Party.
(ii) Party B is not a Multibranch Party.
(e) The Calculation Agent for any Transaction shall be as set forth in the
confirmation for such Transaction.
(f) Credit Support Document. Details of any Credit Support Document:
With respect to Party A: None.
With respect to Party B: None.
(g) Credit Support Provider. Credit Support Provider means in relation to
Party A and Party B: Not applicable.
(h) Governing Law: This Agreement shall be governed by and construed in
accordance with New York law.
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) of this
Agreement will apply all Transactions under this Agreement, so that
payments due under different Transactions will NOT be netted against
each other pursuant to Section 2(c).
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(j) "Affiliate" shall have the meaning specified in Section 14 of this
Agreement.
Part 5
Other Provisions
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1. Representations
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Each party will be deemed to represent to the other party on the date that it
enters into a Transaction that (absent a written agreement between the parties
that expressly imposes affirmative obligations to the contrary for that
Transaction):
(i) Non-Reliance. It is acting for its own account, and it has made its
own independent decisions to enter into that Transaction and as to
whether that Transaction is appropriate or proper for it based upon its
own judgement and upon advice from such advisers as it has deemed
necessary. It is not relying on any communication (written or oral) of
the other party as investment advice or as a recommendation to enter
into that Transaction; it being understood that information and
explanations related to the terms and conditions of a Transaction shall
not be considered to be investment advice or a recommendation to enter
into that Transaction. No communication (written or oral) received
from the other party shall be deemed to be an assurance or guarantee as
to the expected results of that Transaction.
(ii) Assessment and Understanding. It is capable of assessing the merits
of and understanding (on its own behalf or through independent
professional advice), and understands and accepts the terms and
conditions and risks of that Transaction. It is also capable of
assuming, and assumes, the risks of that Transaction.
(iii) Status of Parties. The other party is not acting as a fiduciary for or
adviser to it in respect of that Transaction.
2. Withholding Tax
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Notwithstanding Section 2(d) of the Agreement, neither party shall be required
to pay any additional amounts in respect of an Indemnifiable Tax or be under any
obligation to pay any amount to the other party in respect of any liability for
or on account of any Indemnifiable Tax.
3. Definitions
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Capitalized terms not defined under this Agreement shall have the definitions
ascribed to them in the Down-MACRO Holding Trust Agreement (the "Down-MACRO
Holding Trust Agreement") or the Up-MACRO Holding Trust Agreement (the "Up-MACRO
Holding Trust Agreement"), each dated as of November 24, 2006, and each entered
into among MACRO Securities Depositor, LLC, Investors Bank & Trust Company, as
Trustee, Claymore Securities, Inc., as Administrative Agent and a Marketing
Agent, and MACRO Financial, LLC, as a Marketing Agent.
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CLAYMORE MACROSHARES CLAYMORE MACROSHARES
OIL UP HOLDING TRUST OIL DOWN HOLDING TRUST
By: INVESTORS BANK & TRUST COMPANY, By: INVESTORS BANK & TRUST COMPANY
not in its individual capacity not in its individual capacity
but solely as Up-MACRO Holding but solely as Down-MACRO Holding
Trustee Trustee
By: /S/ Xxxxxxx X. Xxxxxx By: /S/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X.Xxxxxx Name: Xxxxxxx X. Xxxxxx
Title: President Title: President
Date: November 24, 2006 Date: November 24, 2006
