(Multicurrency—Cross
Border)
ISDA®
International Swap
Dealers Association, Inc.
MASTER AGREEMENT
dated as of December
22, 2005
among
Greenwich Capital Derivatives,
Inc. (“Party A”) and Xxxxx Fargo Bank, National Association,
not in its individual capacity but solely as Securities Administrator under the Pooling
and Servicing Agreement, acting as Auction Administrator and intermediary agent for the
Holders of the Auction Certificates (“Party B”), have entered and/or
anticipate entering into one or more transactions (each a “Transaction”)
that are or will be governed by this Master Agreement, which includes the schedule (the
“Schedule”), and the documents and other confirming evidence (each a
“Confirmation”) exchanged between the parties confirming those
Transactions.
Accordingly, the parties agree as
follows: —
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(a) |
Definitions The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
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(b) |
Inconsistency In the event of any inconsistency between
the provisions of the Schedule and the other provisions of this Master
Agreement, the Schedule will prevail. In the event of any inconsistency between
the provisions of any Confirmation and this Master Agreement (including the
Schedule), such Confirmation will prevail for the purpose of the relevant
Transaction. |
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(c) |
Single
Agreement All Transactions are entered into in reliance on the fact that
this Master Agreement and all Confirmations form a single agreement between the
parties (collectively referred to as this “Agreement”), and the
parties would not otherwise enter into any Transactions. |
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(i) |
Each party will
make each payment or delivery specified in each Confirmation to be made by it,
subject to the other provisions of this Agreement. |
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(ii) |
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Payments under
this Agreement will be made on the due date for value on that date in the place
of the account specified in the relevant Confirmation or otherwise pursuant to
this Agreement, in freely transferable funds and in the manner customary for
payments in the required currency. Where settlement is by delivery (that is,
other than by payment), such delivery will be made for receipt on the due date
in the manner customary for the relevant obligation unless otherwise specified
in the relevant Confirmation or elsewhere in this Agreement. |
value of that which was (or
would have been) required to be delivered as of the originally scheduled date
for delivery, in each case together with (to the extent permitted under
applicable law) interest, in the currency of such amounts, from (and including)
the date such amounts or obligations were or would have been required to have
been paid or performed to (but excluding) such Early Termination Date, at the
Applicable Rate. Such amounts of interest will be calculated on the basis of
daily compounding and the actual number of days elapsed. The fair market value
of any obligation referred to in clause (b) above shall be reasonably determined
by the party obliged to make the determination under Section 6(e) or, if each
party is so obliged, it shall be the average of the Termination Currency
Equivalents of the fair market values reasonably determined by both parties.
In Witness Whereof
the parties have executed this document on the respective dates specified
below with effect from the date specified on the first page of this document.
GREENWICH CAPITAL DERIVATIVES, INC.
GREENWICH CAPITAL MARKETS, INC.,
its agent
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XXXXX FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity
but solely as Securities Administrator under the Pooling and Servicing
Agreement, acting as Auction Administrator and intermediary agent for the
Holders of the Auction Certificates
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| By |
/s/ Xxxxxx Xxxxxxxxxxx
Name: Xxxxxx Xxxxxxxxxxx
Title: Senior Vice President
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By |
/s/ Xxx Xxxxx
Name: Xxx Xxxxx
Title: Vice President
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SCHEDULE
TO THE
MASTER AGREEMENT
DATED AS OF December 22, 2005
between
GREENWICH CAPITAL DERIVATIVES, INC.,
a corporation organized under the laws of Delaware
(“Party A”)
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION
not in its individual capacity but solely as Securities Administrator under the Trust,
Pooling and Servicing Agreement (as defined herein), acting as Auction Administrator for
the benefit of the Holders of the Auction Certificates
(“Party B”)
| Part 1 |
TERMINATION PROVISIONS |
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(a) |
“Specified
Entity” means
in relation to Party A for the purpose of:
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Section 5(a)(v) (Default under Specified Transaction) |
Not Applicable |
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Section 5(a)(vi) (Cross Default) |
Not Applicable |
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Section 5(a)(vii) (Bankruptcy) |
Not Applicable |
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Section 5(b)(iv) (Credit Event Upon Merger) |
Not Applicable |
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and in relation to Party B for the purpose of:
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Section 5(a)(v) (Default under Specified Transaction) |
Not Applicable |
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Section 5(a)(vi) (Cross Default) |
Not Applicable |
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Section 5(a)(vii) (Bankruptcy) |
Not Applicable |
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Section 5(b)(iv) (Credit Event Upon Merger) |
Not Applicable |
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(b) |
“Specified Transaction” will have the meaning assigned
in Section 14 of this Agreement. |
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(c) |
The
“Cross-Default” provisions of Section 5(a)(vi)
will not apply to Party A.
will not apply to Party B.
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(d) |
The
“Credit Event Upon Merger” provisions of Section 5(b)(iv)
will not apply to Party A.
will not apply to Party B.
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(e) |
The
“Automatic Early Termination” provision of Section 6(a)
will not apply to Party A.
will not apply to Party B.
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(f) |
Payments on
Early Termination. For the purpose of Section 6(e) of this Agreement but subject
to Part 5 of this Schedule: |
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(ii) |
The Second
Method will apply. |
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(g) |
“Termination
Currency” means United States Dollars. |
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(h) |
Additional
Termination Event will not apply. |
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(i) |
The
“Breach of Agreement” provisions of Section 5(a)(ii), the
“Misrepresentation” provisions of Section 5(a)(iv) and the
“Default Under Specified Transaction” provisions of Section
5(a)(v)
will not apply to Party A.
will not apply to Party B.
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(j) |
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The
“Bankruptcy” provisions of Section 5(a)(vii), the
“Merger Without Assumption” provisions of Section 5(a)(viii),
the “Illegality” provisions of Section 5(b)(i), the
“TaxEvent” provisions of Section 5(b)(ii) and the
“Tax Event Upon Merger” provisions of Section 5(b)(iii) will
not apply to Party B. |
| Part 2 |
TAX
REPRESENTATIONS |
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(a) |
Payer Tax
Representation For the purpose of Section 3(e) of this Agreement, each party
will make with respect to itself the following representation: |
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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, it may rely on (i) the accuracy of any representation 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, |
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provided that it shall not be a breach of this representation where
reliance is placed on sub-clause (ii) above 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. |
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(b) |
Payee Tax
Representations For the purposes of Section 3(f), each party makes the
following representations: |
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(i) |
The
following representation will apply to Party A: |
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It is a corporation created or organized in the United States or under the laws
of the United States or of any State and its U.S. taxpayer identification number
is 00-0000000. |
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(ii) |
The following
representation will apply to Party B: |
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It is a national banking association established under the laws of the United
States and its U.S. taxpayer identification number is 00-0000000. |
| Part 3 |
AGREEMENT
TO DELIVER DOCUMENTS |
For the purpose of Section 4(a)(i)
and (ii) of this Agreement, each party agrees to deliver the following documents, as
applicable:
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(a) |
Tax forms,
documents or certificates to be delivered are: |
Party Required To Deliver
Document |
Form / Document/ Certificate |
Date By Which To Be
Delivered |
| Party B |
Tax forms that may reasonably be required by Party A |
(i) Upon execution and delivery of this Agreement; (ii) promptly upon reasonable
demand by Party A; and (iii) promptly upon learning that any Form W-9 (or any
successor thereto) has become obsolete or incorrect |
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(b) |
Other documents
to be delivered are: |
Party Required To
Deliver Document |
Form / Document/
Certificate |
Date By Which To Be
Delivered |
Covered By Section
3(d) Representation |
| Party A & B
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Incumbency Certificate or
other evidence of signing
authority.
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Upon execution of this
Agreement and, if
requested, any
Confirmation.
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Yes
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| Party A |
In the case of Party A,
the audited annual report
of its Credit Support
Provider.
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As soon as possible after
request.
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Yes
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| Party A
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Authorizing resolution of
managing board (e.g.,
Certified Board of
Directors Resolution)
approving each type of
Transaction contemplated
hereunder and the
arrangements contemplated
herein.
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Upon execution of this
Agreement and, if
requested, any
Confirmation.
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Yes
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| Party B
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Copies of all statements
delivered to the Holders
of the Auction
Certificates under the
Trust, Pooling and
Servicing Agreement.
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On each Distribution Date
(as such term is defined
in the Trust, Pooling and
Servicing Agreement).
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Yes
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| Party A & B
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Such party's Credit
Support Documents, if any.
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Upon execution of this
Agreement.
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Yes
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(a) |
Addresses For
Notices For the purpose of Section 12(a) of this Agreement:- |
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(i) |
Notices or
communications shall, with respect to a particular Transaction, be sent to the
address, telex number or facsimile number reflected in the Confirmation of that
Transaction. In addition (or in the event the Confirmation for a Transaction
does not provide relevant Addresses/information for notice), with respect to
notices provided pursuant to Section 5 and 6 of this Agreement, notice shall be
provided to:
Address for notices or communications to Party A:
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Address: |
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
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Attention: |
Legal Department – Derivatives Documentation |
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Phone No.: |
000-000-0000/32 |
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Facsimile No.: |
000-000-0000/34 |
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Address
for notices or communications to Party B: |
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Address: |
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000 - 1951
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Attention: |
Client Manager - Xxxxxxxxx 2005-4 |
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Phone No.: |
(000) 000 0000 |
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Facsimile No.: |
(000) 000 0000 |
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(ii) |
Notices
Section 12(a) is amended by adding in the third line thereof after the phrase
“messaging system” and before the “)” the words “;
provided, however, any such notice or other communication may be given by
facsimile transmission (it being agreed that the sender shall verbally confirm
receipt with an officer of the receiving party )". |
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(b) |
Process Agent
For purposes 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 |
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(c) |
Offices
The provisions of Section 10(a) will apply to this Agreement. |
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(d) |
Multibranch
Party For purpose of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party. |
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(e) |
Calculation
Agent Party A; it being understood that, notwithstanding anything to the
contrary in this Agreement, Party A shall be the Calculation Agent irrespective
of whether Party A is a Defaulting Party or Affected Party. Notwithstanding
Section 6(e) of the Agreement, Party A will be the party entitled to determine
Loss. |
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(f) |
Credit
Support Documents Details of any Credit Support Documents: |
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In the case of Party A, the Deed Poll Guarantee dated as of June 21, 2001, by
The Royal Bank of Scotland plc (the “Guarantee”) in favor of
all Designated Counterparties. |
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For the purposes of this Agreement, the term “Designated
Counterparty” shall have the meaning assigned in the Guarantee.
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In
the case of Party B, the Auction Administration Agreement, dated as of December 22, 2005
(the “Auction Administration Agreement”) between Party A and Party B, as
Auction Administrator. |
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(g) |
Credit
Support Provider means
in relation to Party A: The Royal Bank of Scotland plc; and
in relation to Party B: Not Applicable |
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(h) |
Governing Law
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS WHOLLY PERFORMED WITHIN NEW
YORK, WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE. |
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(i) |
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Netting of
Payments Sub-paragraph (ii) of Section 2(c) of this Agreement will apply to
all Transactions hereunder, unless otherwise provided in the relevant
Confirmation(s). |
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(j) |
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“Affiliate” will
have the meaning specified in Section 14. |
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(a) |
ISDA
Definitions Incorporated by Reference The definitions and provisions
contained in the 2000 ISDA Definitions, as published by the International Swaps
and Derivatives Association, Inc., are incorporated herein, and the version of
the Annex to the 2000 ISDA Definitions that is incorporated herein is the June
2000 version (collectively, the “Definitions”). Any terms used
and not otherwise defined herein which are contained in the Definitions shall
have the meaning set forth therein. In the event of any conflict between the
Definitions and any other ISDA-published definitions referenced in a
Confirmation, such Confirmation and the ISDA-published definitions referred to
therein shall control for purposes of the particular Transaction. For the
avoidance of doubt, any reference to a “Swap Transaction”, if any, in
the Definitions is deemed to be a reference to a “Transaction” for the
purpose of interpreting this Agreement or any Confirmation, and any reference to
a “Transaction” in this Agreement or any Confirmation is deemed to be
a reference to a “Swap Transaction” for the purpose of interpreting
the Definitions. |
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(b) |
Other Defined
Terms Terms used and not defined in this Agreement or in the Definitions,
shall have the respective meanings ascribed to such terms in the Auction
Administration Agreement, and if not defined therein, in the Trust, Pooling and
Servicing Agreement, dated as of December 1, 2005, among Structured Asset
Mortgage Investments II Inc., as Depositor, Xxxxxxxxx Mortgage Home Loans, Inc,.
as Seller, Xxxxx Fargo Bank, N.A., as Master Servicer and Securities
Administrator, U.S. Bank National Association, as Trustee, and Wilmington Trust
Company, as Delaware Trustee (the “Trust, Pooling and Servicing
Agreement”), with respect to the Xxxxxxxxx Mortgage Securities Trust
2005-4 Mortgage Loan Pass-Through Certificates, Series 2005-4. |
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(c) |
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No
Set-Off Notwithstanding anything to the contrary in this Agreement, all
payments shall be made without any Set-Off. |
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(d) |
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Condition
Precedent The condition precedent specified in Section 2(a)(iii)(1) of this
Agreement does not apply to a payment or delivery owing by a party if the other
party shall have satisfied in full all its payment and delivery obligations
under Section 2(a)(i) of this Agreement and shall at the relevant time have no
future payment or delivery obligations, whether absolute or contingent, under
Section 2(a)(i). |
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(e) |
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Additional
Representations Section 3 is hereby amended by adding at the end thereof the
following subparagraphs: |
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(g) |
“No
Agency In case of Party A, it is entering into this Agreement, any Credit
Support Document and any other document relating to this Agreement and each
Transaction hereunder as principal and not as agent or in any capacity,
fiduciary or otherwise, and no other person has an interest herein, and in case
of Party B, it is entering into this Agreement, any Credit Support Document and
any other document relating to this Agreement and each Transaction hereunder
solely as agent for the Holders of the Auction Certificates (as such term is
defined in the Trust, Pooling and Servicing Agreement and as authorized
therein), and no other person, other than the Holders of the Auction
Certificates, has an interest herein. |
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(h) |
Legal and
Beneficial Owner It will be the legal and beneficial owner of any securities
it is required to deliver under this Agreement and any Transaction at the time
of each delivery, free from all liens, charges, equities, rights of pre-emption
or other security interests or encumbrances whatsoever, unless otherwise
expressly provided in a Confirmation for a Transaction, and such securities will
not constitute “restricted securities” or “control stock”
under the Securities Act (as defined below). |
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(i) |
US Federal
Securities Laws Each party represents to the other party that: |
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(i) |
It is a
“qualified institutional buyer” as defined in Rule 144A under the
United States Securities Act of 1933, as amended (the “Securities
Act”); and |
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(ii) |
It understands
that certain Transactions under the Agreement may constitute the purchase or
sale of “securities” as defined in the Securities Act and understands
that any such purchase or sale of securities will not be registered under the
Securities Act and that any such Securities Transactions may not be reoffered,
resold, pledged, sub-participated or otherwise transferred except (x) in
accordance with the Agreement, (y) pursuant to an effective registration
statement under the Securities Act or pursuant to an exemption from the
registration requirements of the Securities Act and (z) in accordance with any
applicable securities laws of any state of the United States. |
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(j) |
Financial
Institution Status In the case of Party A, it is a “financial
institution”, in that it engages, will engage and holds itself out as
engaging in “financial contracts,” as a counterparty on both sides of
one or more “financial markets” (as such quoted terms are defined in
Regulation EE of the US Federal Reserve Board, 12 C.F.R. Part 231) and it
fulfills at least one of the quantitative tests contained in such Regulation EE
(12 C.F.R. §231(a)(1) or (a)(2)).” |
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(f) |
|
Swap
Exemption Each party hereto represents to the other party on and as of the
date hereof and on each date on which a Transaction is entered into between them
hereunder, that it is an “eligible contract participant” as defined in
Section 1a(12) of the Commodity Exchange Act, as amended. |
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(g) |
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Relationship
between Parties In connection with the negotiation of, the entering into, of
this Agreement, and any other documentation relating to this Agreement to which
it is a party or that it is required by this Agreement to deliver, each party
hereby represents and warrants, and, in connection with the negotiation of, the
entering into, and the confirming of the execution of each Transaction, each
party will be deemed to represent, to the other party as of the date hereof (or,
in connection with any Transaction, as of the date which it enters into such
Transaction) that (absent a written agreement between the parties that expressly
imposes affirmative obligations to the contrary for that Transaction and in
accordance with Section 3(g)): |
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(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 judgment 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
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.
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(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, conditions and risks of that Transaction. It is also
capable of assuming, and assumes, the risks of that Transaction. It has
determined to its satisfaction whether or not the rates, prices or amounts and
other economic terms of each Transaction and the indicative quotations (if any)
provided by the other party reflect those in the relevant market for similar
transactions, and all trading decisions have been the result of arm’s
length negotiations between the parties. |
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(iii) |
Status of
Parties The other party is not acting as a fiduciary for or an adviser to it
in respect of that Transaction. |
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(iv) |
Related
Transactions It is aware that each other party to this Agreement and its
Affiliates may from time to time (A) take positions in instruments that are
identical or economically related to a Transaction or (B) have an investment
banking or other commercial relationship with the issuer of an instrument
underlying a Transaction. |
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(h) |
Additional
Representations of Party B Party B hereby acknowledges and agrees that (i)
with respect to this Agreement and each Transaction, Party B will maintain, and
be in full compliance with, all operative and constituent documents of Party B,
and (ii) each Transaction will also comply in all respects with all applicable
laws, rules, regulations, interpretations, guidelines, procedures, and policies
of applicable governmental and regulatory authorities affecting Party B or the
performance of its obligations hereunder. |
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(i) |
Confidential
Information Each party may share any information concerning the other party
with any of its Affiliates. |
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(j) |
Waiver of
Jury Trial EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
TRANSACTION. |
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(k) |
Consent to
Telephonic Recording Each party hereto consents to the monitoring or
recording, at any time and from time to time, by the other party of the
telephone conversations of trading and marketing personnel of the parties and
their authorized representatives in connection with this Agreement or any
Transaction or potential Transaction; and the parties, waive any further notice
of such monitoring or recording and agree to give proper notice and obtain any
necessary consent of such personnel or any such monitoring or recording.
|
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(l) |
Agency Role
of Greenwich Capital Markets, Inc. In connection with this Agreement,
Greenwich Capital Markets, Inc. has acted as agent on behalf of Party A.
Greenwich Capital Markets, Inc. has not guaranteed and is not otherwise
responsible for the obligations of Party A under this Agreement. |
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(m) |
No Bankruptcy
Petition Party A agrees that it will not, prior to the date that is one year
and one day following the termination of the Trust, Pooling and Servicing
Agreement, acquiesce, petition or otherwise invoke or cause Party B to invoke
the process of any governmental authority for the purpose of commencing or
sustaining a case (whether voluntary or involuntary) against Party B under any
bankruptcy, reorganization, arrangement, insolvency, moratorium, liquidation or
similar law or proceeding or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of Party B or any
substantial part of its property or ordering the winding-up or liquidation of
the affairs of Party B; provided, that this provision shall not restrict
or prohibit Party A from joining any other person in any bankruptcy,
reorganization, arrangement, insolvency, moratorium or liquidation proceedings
already commenced or other analogous proceedings already commenced under
applicable law; and provided, further, that this provision shall
not constitute a waiver by Party A of its right to the proceeds of any
bankruptcy, reorganization, arrangement, insolvency, moratorium or liquidation
proceedings instituted by third parties against Party B under applicable law.
|
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(n) |
Notice of
Transfer or Amendment Party A and Party B acknowledge and agree to provide
prior written notice to the Rating Agencies (as such term is defined in the Pool
and Servicing Agreement) of any transfer or amendment of this Agreement or any
Confirmation. |
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(i) |
If the
short-term unsecured debt rating (or its equivalent) of Party A’s Credit
Support Provider is at any time not at least “A-1” (or successor
rating thereto) by Standard & Poor’s Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc. (“S&P”) or
“Prime-1” (or successor rating thereto) by Xxxxx’x Investors
Service, Inc. (“Moody’s”)(such occurrence, a
“Ratings Event”) Party A shall, at its own cost, assign all its
rights and obligations under this Agreement to a substitute party with (or whose
Credit Support Provider has) a short-term unsecured debt rating (or its
equivalent) of at least “A-1" (or any successor rating thereto) by
S&P or “Prime-1” (or any successor rating thereto) by Moody’s
selected by Party A and reasonably satisfactory to the Rating Agencies.
|
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(ii) |
|
If after 30 days
following the Ratings Event, Party A has been unsuccessful in securing a
substitute party as provided in clause (i) above, Party A shall continue to
perform its obligations under this Agreement until a suitable substitute party
is in place and, while continuing to actively pursue a substitute party, shall
post collateral reasonably satisfactory to the Rating Agencies pursuant to a
Credit Support Annex with terms acceptable to the Rating Agencies following such
Ratings Event. |
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(p) |
Transfer
Notwithstanding Section 7 of this Agreement, Party A and Party A’s Credit
Support Provider shall have the right to transfer their respective rights and
obligations hereunder to a substitute counterparty provided that such substitute
counterparty (or such substitute counterparty’s Credit Support Provider)
shall have (i) a credit rating of its long-term debt obligations no lower than
the current rating of the long-term debt obligations of Party A’s Credit
Support Provider and (ii) a short-term debt rating of at least “A-1”
by S&P. |
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(q) |
Demand Under
Guarantee If there is a failure to pay by Party A under this Agreement,
Party B will make a demand for payment under the Guarantee in accordance with
the terms of the Guarantee. |
In Witness Whereof,
Party A and Party B have caused this Schedule to be duly executed as its act and
deed as of the date first written above.
GREENWICH CAPITAL
DERIVATIVES, INC.
By: Greenwich Capital
Markets, Inc., its agent
By /s/ Xxxxxx Xxxxxxxxxxx
Name: Xxxxxx Xxxxxxxxxxx
Title: Senior Vice President
|
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, not in its individual capacity but solely as Securities Administrator
under the Trust, Pooling and Servicing Agreement, acting as Auction Administrator
and intermediary agent for the Holders of the Auction Certificates |
|
By /s/ Xxx Xxxxx
Name: Xxx Xxxxx
Title: Vice President
December 22, 2005
| To |
Xxxxx Fargo Bank, N.A.
not in its individual capacity but solely as Securities Administrator under the
Trust, Pooling and Servicing Agreement (defined below), acting solely as Auction
Administrator on behalf of the Holders of the Auction Certificates
(“Party B”)
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attention: Client Manager - Xxxxxxxxx 2005-4
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000 0000
|
| From |
Greenwich Capital Derivatives, Inc. ("GCD" or "Party A")
|
| GCD Reference No |
HG2FCRO / HG2FCVO
|
Swap Confirmation
The purpose of this communication
(this “Confirmation”) is to set forth the terms and conditions of the
Swap Transaction entered into between us on the Trade Date specified below (the
“Transaction”).
The definitions and provisions
contained in the 2000 ISDA Definitions, as published by the International Swaps and
Derivatives Association, Inc., are incorporated into this Confirmation, and the version of
the Annex to the 2000 ISDA Definitions that is incorporated into this Confirmation is the
June 2000 version (collectively, the “Definitions”). In the event of any
inconsistency between the Definitions and this Confirmation, this Confirmation will
govern.
This Confirmation constitutes a
“Confirmation” as referred to in, and supplements, forms part of, and is subject
to, the ISDA Master Agreement dated as of December 22, 2005, together with the Schedule
thereto, as amended and supplemented from time to time (the “Agreement”),
between you and us. All provisions contained in the Agreement govern this Confirmation
except as expressly modified below.
Terms used and not defined herein
shall have the respective meanings ascribed to such terms in the Auction Administration
Agreement, dated as of December 22, 2005 (the “Auction Administration
Agreement”) between GCD and Xxxxx Fargo Bank, N.A., not in its individual
capacity but solely as Securities Administrator under the Trust, Pooling and Servicing
Agreement, as auction administrator, and if not defined therein, in the Pooling and
Servicing Agreement, dated as of December 1, 2005, among Structured Asset Mortgage
Investments II Inc., as Depositor, Xxxxxxxxx Mortgage Home Loans, Inc., as Seller, Xxxxx
Fargo Bank, N.A., as Master Servicer and Securities Administrator, U.S. Bank National
Association, as Trustee, and Wilmington Trust Company, as Delaware Trustee (the
“Trust, Pooling and Servicing Agreement”), with respect to the
Xxxxxxxxx Mortgage Securities Trust 2005-4 Mortgage Loan Pass-Through Certificates, Series
2005-4. In the event of any inconsistency between the provisions of this Confirmation and
the Agreement or the Definitions or the Trust, Pooling and Servicing Agreement, this
Confirmation will prevail.
The terms of the Transaction to which
this Confirmation relates are as follows:
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Notional Amount: |
Initially, USD 1,407,861,000 in the aggregate; subject to reduction for all
principal amounts paid to a holder of any Reference Obligation and realized
losses, if any, and subject to increase for recoveries, if any, in each case,
allocated to any Reference Obligation from the Effective Date to and including
the Termination Date pursuant to Article X of the Trust, Pooling and Servicing
Agreement in reduction (or increase) of the principal amount of any Reference
Obligation.
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Trade Date: |
December 22, 2005
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Effective Date: |
December 22, 2005
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Auction Distribution Date: |
The Distribution Date in December 2008.
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Termination Date: |
The earlier to occur of (i) the date on which the aggregate Current Principal
Amount of the Reference Obligations has been reduced to zero and (ii) the
Auction Distribution Date.
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Reference Obligations: |
The Class A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates and
Class A-4 Certificates issued on December 22, 2005 pursuant to the Trust,
Pooling and Servicing Agreement in the aggregate principal amount of USD
1,407,861,000.
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Party A Floating Amount: |
With respect to each Reference Obligation, the amount equal to the excess, if
any, of (a) the aggregate Par Price of the Certificates constituting such
Reference Obligation, over (b) the aggregate Auction Proceeds of the
Certificates constituting such Reference Obligation.
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Party A Payment Date: |
One Business Day prior to the Auction Distribution Date
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Party B Floating Amount: |
With respect to each Reference Obligation, the amount equal to the excess, if
any, of (a) the aggregate Auction Proceeds of the Certificates constituting such
Reference Obligation, over (b) the aggregate Par Price of the Certificates
constituting such Reference Obligation.
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Party B Payment Date: |
The Auction Distribution Date
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Business Days: |
New York and any other city in which the corporate trust office of the
Securities Administrator is located
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Business Day Convention: |
Modified Following
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| 3 |
Account
Details; Additional Contact Information: |
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Please pay GCD at: |
XX Xxxxxx Xxxxx Bank
ABA # 000-000-000
A/C GCD
A/C # 0662-14335
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We will pay Xxxxx Fargo Bank, N.A. at: |
Xxxxx Fargo Bank, N.A.
ABA # 021000248
A/C# 0000000000
A/C Name: Corporate Trust Clearing
For further credit: Xxxxxxxxx 0000-0, Xxxx Proceeds
Account # 00000000
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For convenience, GCD may be reached
as follows:
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Front Office
Xxxxxxx Xxxxxxx
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
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Operations
Xxxxxx Xxxxxxxxxx
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000 |
| 4 |
Payment
of Party B Floating Amount; Selection of Designee: |
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The
parties agree that Party B shall pay or cause to be paid the Party B Floating Amount, if
any, to GCD or its designee, the name and account details of which, if any, shall be
provided to Party B no later than the Business Day prior to the Auction Distribution
Date. |
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Please note that any notice in respect of any Transaction must be given as
provided in Section 12 of the Agreement. |
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Performance
and enforcement of obligations evidenced hereby shall be governed by, and interpreted in
accordance with, the laws of the State of New York without regard to its conflict of laws
principles other than Section 5-1401 of the General Obligations Law of the State of New
York. |
| 7 |
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Limitation
on Party B Payment Obligations |
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Notwithstanding
any other provision of this Transaction or the Agreement, no amount shall be payable by
Party B under this Transaction or the Agreement unless and until the funds necessary to
make such payment have been provided to Party B pursuant to the Auction Administration
Agreement. |
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It
is expressly understood and agreed by the parties hereto that insofar as this
Confirmation is executed by Xxxxx Fargo Bank, National Association (“Xxxxx Fargo”),
(i) this Confirmation is executed and delivered by Xxxxx Fargo, not in its individual
capacity, but solely as Securities Administrator under the Trust, Pooling and Servicing
Agreement referred to herein, acting as Auction Administrator for the benefit of the
holders of the Auction Certificates, in the exercise of the powers and authority
conferred and vested in it thereunder and under the Auction Administration Agreement
referred to herein, (ii) each of the representation, undertakings and agreements made
herein or in the Agreement by Xxxxx Fargo are made on behalf of the holders of the
Auction Certificates and intended not as personal representations of Xxxxx Fargo but is
made and intended for the purpose of binding only the Trust referred to in the Trust,
Pooling and Servicing Agreement and the Auction Certificates and (iii) under no
circumstances (other than fraud or willful misconduct) shall Xxxxx Fargo in its
individual capacity be personally liable for the payment of any indebtedness or expenses
or be personally liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken under this Confirmation or the Agreement. |
In connection with this Confirmation,
Greenwich Capital Markets, Inc., has acted as agent on behalf of Party A. Greenwich
Capital Markets, Inc., has not guaranteed and is not otherwise responsible for the
obligations of Party A under this Agreement.
We are pleased to have completed this
Transaction and look forward to dealing with you again in the near future.
GREENWICH CAPITAL
DERIVATIVES, INC.
| By: |
GREENWICH CAPITAL MARKETS, INC.,
its agent
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By /s/ Xxxxxx Xxxxxxxxxxx
Name: Xxxxxx Xxxxxxxxxxx
Title: Senior Vice President
Reviewed by:
/s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Managing Director
ACCEPTED AND CONFIRMED as of
the date first written:
XXXXX FARGO BANK, N.A.
not in its individual capacity but solely as Securities Administrator under the
Trust, Pooling and Servicing Agreement, acting solely as Auction Administrator
on behalf of the Holders of the Auction Certificates
| By |
/s/ Xxx Xxxxx
Authorized Signatory
Name: Xxx Xxxxx
Title: Vice President
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