ISDAâ International Swaps and Derivatives Association, Inc. MASTER AGREEMENT dated as of May 31, 2007
(Multicurrency
- Cross Border)
ISDAâ
International
Swaps
and
Derivatives
Association, Inc.
MASTER
AGREEMENT
dated
as
of May
31, 2007
|
ABN
AMRO BANK N.V.
|
and
|
XXXXXX
XS TRUST, SERIES 2007-7N
|
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:
(a) Interpretation
(i) Definitions.
The
terms
defined in Section 14 and in the Schedule will have the meanings therein
specified for
the
purpose of this Master Agreement.
(ii) 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.
(iii) 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.
(b) Obligations
(i) General
Conditions.
(A) 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.
(B) 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.
|
ABN
AMRO BANK N.V.
|
XXXXXX
XS TRUST, SERIES 2007-7N
|
|
|
(Name
of Party)
|
(Name
of Party)
|
|
|
By:
U.S. Bank, National Association, not in its individual capacity,
but
solely as Trustee
|
||
|
Name: |
Name: |
|
|
Title:
|
Title:
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|
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Date:
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Date:
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|
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Name: |
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Title:
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Date:
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1
Rate
Swap Schedule
SCHEDULE
to
the
Master
Agreement
dated
as
of May
31,
2007
between
|
ABN
AMRO BANK N.V.
|
and
|
XXXXXX
XS TRUST, SERIES 2007-7N
|
|
_______________________________________
(“Party
A”)
|
_________________________________________
(“Party
B”)
|
Part
1
Termination
Provisions.
| (c) |
“Specified
Entity”
means in relation to Party A for the purpose
of:
|
Section
5(a)(v), Not
applicable
Section
5(a)(vi), Not
applicable
Section
5(a)(vii), Not
applicable
Section
5(b)(iv), Not
applicable
and
in
relation to Party B for the purpose of:
Section
5(a)(v), Not
applicable
Section
5(a)(vi), Not
applicable
Section
5(a)(vii), Not
applicable
Section
5(b)(iv), Not
applicable
| (d) |
“Specified
Transaction”
will not apply to Party A or to Party
B.
|
| (e) |
Certain
Events of Default.
The following Events of Default will apply to the parties as specified
below, and the definition of “Event of Default” in Section 14 is deemed to
be modified accordingly:
|
Section
5(a)(i) (Failure to Pay or Deliver) will apply to Party A and Party B; provided,
however, that Section 5(a)(i) is hereby amended by replacing the word “third”
with the word “first.”
Section
5(a)(ii) (Breach
of Agreement)
will
apply to Party A and will not apply to Party B; except that Section 5(a)(ii)
will not apply to Party A with respect to Party A’s failure to comply with Part
5(b)(i), Part 5(b)(ii) or Part 5(b)(iii) herein.
2
Section
5(a)(iii) (Credit
Support Default)
will
apply to Party A and will not apply to Party B; except that Section 5(a)(iii)(1)
will apply in respect of Party B’s obligations under Paragraph 3(b) of any
Credit Support Document.
Section
5(a)(iv) (Misrepresentation)
will
apply to Party A and will not apply to Party B.
Section
5(a)(v) (Default
under Specified Transaction)
will
not apply to Party A or Party B.
Section
5(a)(vi) (Cross
Default)
will
not apply to Party B and will apply to Party A with a Threshold Amount equal
to
three percent of its total shareholders equity as specified from time to time
in
the most recent Annual Report of ABN AMRO Holding N.V. containing consolidated
financial statements, prepared in accordance with accounting principles that
are
generally accepted for institutions of its type in the jurisdiction of its
organization and certified by independent public accountants, or its equivalent
in any other currency.
“Relevant
Entity”
means
Party A and any guarantor under an Eligible Guarantee in respect of all of
Party
A’s present and future obligations under this Agreement.
Section
5(a)(vii) (Bankruptcy)
will
apply to Party A and Party B; provided
that
clauses (2), (7) and (9) thereof shall not apply to Party B; provided
further
that clause (4) thereof shall not apply to Party B with respect to proceedings
or petitions instituted or presented by Party A or any Affiliate of Party A;
provided
further
that clause (6) shall not apply to Party B to the extent that it refers to
(i)
any appointment that is contemplated or effected by the Trust Agreement (as
defined below) or (ii) any appointment to which Party B has not become subject;
and provided
further
that clause (8) shall not apply to Party B to the extent that clause (8) relates
to clauses (2), (4), (6) and (7) (except to the extent that such provisions
are
not disapplied to Party B).
Section
5(a)(viii) (Merger
without Assumption)
will
apply to Party A and Party B.
Notwithstanding
Sections 5(a)(i) and 5(a)(iii) of this Agreement, any failure by Party A to
comply with or perform any obligation to be complied with or performed by Party
A under the Credit Support Document shall not be an Event of Default unless
(A)
(i) the Second
Rating Trigger Requirements
apply
and at
least
30 Local Business Days have elapsed since the last time the Second Rating
Trigger Requirements did not apply and (ii) such
failure is not remedied on or before the third Local Business Day after notice
of such failure is given to Party A,
or (B)
(i) a Ratings Event has occurred and is continuing and at least 10 Local
Business Days (or 30 calendar days, in the case of Fitch) have elapsed the
since
the date a Ratings Event occurred and (ii) such failure is not remedied on
or
before the third Local Business Day after notice of such failure is given to
Party A.
| (f) |
Termination
Events.
The following Termination Events will apply to the parties as specified
below:
|
Section
5(b)(i) (Illegality)
will
apply to Party A and Party B.
Section
5(b)(ii) (Tax
Event)
will
apply to Party A and Party B; provided
that
Section
5(b)(ii) shall be amended by deleting the
words
“(x) any action taken by a taxing authority, or brought in a court of competent
jurisdiction, on or after the date on which a Transaction is entered into
(regardless of whether such action is taken or brought with respect to a party
to this Agreement) or (y).”
3
Section
5(b)(iii) (Tax
Event upon Merger)
will
apply to Party A and Party B; provided
that
Party A shall not be entitled to designate an Early Termination Date by reason
of a Tax Event upon Merger in respect of which it is the Affected
Party.
Section
5(b)(iv) (Credit
Event upon Merger)
will
not apply to Party A or Party B.
| (g) |
The
“Automatic
Early Termination”
provision of Section 6(a) of this Agreement will not apply to Party
A or
Party B.
|
| (h) |
The
“Transfer
to Avoid Termination Event”
provision of Section 6(b)(ii) shall be amended
by deleting the
words “or if a Tax Event upon Merger occurs and the Burdened Party is the
Affected Party.”
|
| (i) |
Payments
on Early Termination.
For the purpose of Section 6(e) of this
Agreement:
|
| (i) |
Market
Quotation will apply.
|
| (ii) |
The
Second Method will apply.
|
| (j) |
“Termination
Currency”
means United States Dollars.
|
| (k) |
Timing
of Party B Termination Payment.
If an amount calculated as being due in respect of an Early Termination
Date under Section 6(e) of this Agreement is an amount to be paid
by Party
B to Party A then, notwithstanding the provisions of Section 6(d)(ii)
of
this Agreement, such amount will be payable on the Business Day
immediately preceding the first Distribution Date following the date
on
which the payment would have been payable as determined in accordance
with
Section 6(d)(ii); provided
that if the date on which the payment would have been payable as
determined in accordance with Section 6(d)(ii) is a Distribution
Date,
then the payment will be payable on the date determined in accordance
with
Section 6(d)(ii).
|
| (l) |
Additional
Termination Events.
The following Additional Termination Events will apply, in each case
with
respect to Party A as the sole Affected Party (unless otherwise provided
below):
|
| (i) |
First
Rating Trigger Collateral.
Party A has failed to comply with or perform any obligation to be
complied
with or performed by Party A in accordance with the Credit Support
Document and either (A) the Second Rating Trigger Requirements do
not
apply or (B) less than 30 Local Business Days have elapsed since
the last time the Second Rating Trigger Requirements (as defined
below)
did not
apply.
|
| (ii) |
Second
Rating Trigger Replacement.
(A) The Second Rating Trigger Requirements apply and 30 or more Local
Business Days have elapsed since the last time the Second Rating
Trigger
Requirements did not apply and (B) (i) at least one Eligible Replacement
has made a Firm Offer (which remains capable of becoming legally
binding
upon acceptance) to be the transferee of a transfer to be made in
accordance with Part 5(f)(ii) below and/or (ii) at least one entity
with
the First Trigger Required Ratings and/or the Second Trigger Required
Ratings has made a Firm Offer (which remains capable of becoming
legally
binding upon acceptance by the offeree) to provide an Eligible Guarantee
in respect of all of Party A’s present and future obligations under this
Agreement.
|
The
“Second
Rating Trigger Requirements”
applies
when no Relevant Entity has credit ratings at least equal to the Second Trigger
Required Ratings.
“Firm
Offer”
means an
offer which, when made, was capable of becoming legally binding upon
acceptance.
4
| (iii) |
Ratings
Event.
Party A fails to comply with the downgrade provisions as set forth
in Part
5(b)(iii), after giving effect to all grace or cure periods therein,
and
(i) at least one Eligible Replacement has made a Firm Offer (which
remains
capable of becoming legally binding upon acceptance) to be the transferee
of a transfer to be made in accordance with Part 5(f)(ii) below and/or
(ii) at least one entity with the Hedge Counterparty Ratings Requirement
has made a Firm Offer (which remains capable of becoming legally
binding
upon acceptance by the offeree) to provide an Eligible Guarantee
in
respect of all of Party A’s present and future obligations under this
Agreement.
|
| (m) |
The
following Additional Termination Events will apply, in each case
with
respect to Party B as the sole Affected Party (unless otherwise provided
below):
|
| (i) |
Party
B or the Trust Fund (as defined in the Trust Agreement, dated as
of May 1,
2007, among Structured Asset Securities Corporation, a Delaware
corporation, as depositor, Aurora Loan Services, LLC as master servicer,
and U.S. Bank National Association, as trustee (the “Trustee”), (the
“Trust
Agreement”))
is terminated.
|
| (ii) |
The
Trust Agreement is amended or modified without the prior written
consent
of Party A where such consent is required under the terms of the
Trust
Agreement, or such amendment or modification has a materially adverse
effect on Party A; provided,
however,
that it shall not be an Additional Termination Event where such amendment
or modification involves the appointment of any successor trustee
or
servicer pursuant to the terms of the Trust Agreement.
|
| (iii) |
The
Class Principal Amounts of the rated Certificates are reduced to
zero.
|
| (iv) |
Notice
of the Servicer’s intention
to exercise its option to purchase the Mortgage Loans pursuant to
Section
7.01 of the Trust Agreement is given by the Trustee to Certificateholders
pursuant to Section 7.02 of the Trust Agreement, provided
that the Early Termination Date may not be earlier than the date
on which
the Certificates are redeemed pursuant to Section 7.02 of the Trust
Agreement.
|
Notwithstanding
anything in Section 6 of this Agreement to the contrary, any amounts due as
result of the occurrence of an Additional Termination Event described in Part
1(k)(i) and Part 1(k)(iv) of this Schedule may be calculated prior to the
Early Termination Date and shall be payable on the Early Termination
Date.
5
Part
2
Representations.
| (a) |
Payer
Tax Representations.
For the purpose of Section 3(e) of this Agreement, Party A and Party
B
will make the following representations:
None.
|
| (b) |
Gross
Up.
Section 2(d)(i)(4) shall not apply to Party B as X, and Section 2(d)(ii)
shall not apply to Party B as Y, in each case such that Party B shall
not
be required to pay any additional amounts referred to
therein.
|
| (c) |
Indemnifiable
Tax.
The definition of “Indemnifiable Tax” in Section 14 is deleted in its
entirety and replaced with the
following:
|
“Indemnifiable
Tax”
means,
in relation to payments by Party A, any Tax and, in relation to payments by
Party B, no Tax.
| (d) |
Payee
Representations.
For the purpose of Section 3(f) of this Agreement, Party A and Party
B
make the representations specified below, if
any:
|
| (i) |
Party
A makes the following
representation(s):
|
|
(1)
|
It
is a resident of The Netherlands for the purpose of the application
of the
existing tax treaties between The Netherlands and those countries
where
offices of Party B are located.
|
|
(2)
|
With
respect to its non-U.S. branches, it is fully eligible for the benefits
of
the “Business Profits” or “Industrial and Commercial Profits” provision,
as the case may be, the “Interest” provision or the “Other Income”
provision (if any) of the Specified Treaty with respect to any payment
described in such provisions and received or to be received by it
in
connection with this Agreement and no such payment is attributable
to a
trade or business carried on by it through a permanent establishment
in
the Specified Jurisdiction. With respect to Party A, Specified Treaty
means the income tax treaty between the United States and The Netherlands;
Specified Jurisdiction means the United
States.
|
|
(3)
|
With
respect to its U.S. branches, each payment received or to be received
by
it in connection with this Agreement will be effectively connected
with
its conduct of a trade or business in the United
States.
|
| (ii) |
Party
B makes the following
representation(s):
|
None.
6
Part
3
Agreement
to Deliver Documents.
For
the
purpose of Sections 4(a)(i) and (ii) of this Agreement, each party agrees to
deliver the following documents, as applicable:
| (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
A and Party B
|
Subject
to Section 4(a)(iii), any document required or reasonably requested
to
allow the other party to make payments under this Agreement without
any
deduction or withholding on account of any Tax.
|
(i)
promptly upon reasonable demand by Party B and (ii) promptly upon
learning
that any such Form previously provided by Party A has become obsolete
or
incorrect.
|
| (b) |
Other
documents to be delivered are:—
|
|
Party
required to deliver document
|
Form/Document/Certificate
|
Date
by which to be delivered
|
Covered
by §3(d) Representation
|
|||
|
Party
B
|
Certified
copy of the Board of Directors resolution (or equivalent authorizing
documentation) which sets forth the authority of each signatory to
this
Agreement and each Credit Support Document (if any) signing on its
behalf
and the authority of such party to enter into Transactions contemplated
and performance of its obligations hereunder.
|
Concurrently
with the execution and delivery of this Agreement.
|
Yes
|
|||
|
Party
A and Party B
|
Incumbency
Certificate (or, if available the current authorized signature book
or
equivalent authorizing documentation) specifying the names, titles,
authority and specimen signatures of the persons authorized to execute
this Agreement which sets forth the specimen signatures of each signatory
to this Agreement, each Confirmation and each Credit Support Document
(if
any) signing on its behalf.
|
Concurrently
with the execution and delivery of this Agreement unless previously
delivered and still in full force and effect.
|
Yes
|
|||
|
Party
A and Party B
|
An
executed copy of the Disclosure Agreement relating to the Preliminary
Prospectus Supplement or Free Writing Prospectus, as applicable (each
as
defined in the Trust Agreement).
|
On
the date of such Preliminary Prospectus Supplement
or
Free Writing Prospectus, as applicable.
|
Yes
|
7
|
Party
required to deliver document
|
Form/Document/Certificate
|
Date
by which to be delivered
|
Covered
by §3(d) Representation
|
|
Party
A and B
|
An
executed copy of the Disclosure Agreement relating to the Prospectus
Supplement (as defined in the Trust Agreement).
|
On
the date of such Prospectus Supplement.
|
Yes
|
|||
|
Party
A and B
|
An
opinion of counsel to such party reasonably satisfactory in form
and
substance to the other party, and, in the case of Party B, opinions
of
counsel relating to the Trust Agreement and other deal documents
reasonably satisfactory in form and substance to Party A.
|
Concurrently
with the execution and delivery of the Confirmation unless previously
delivered and still in full force and effect.
|
No
|
|||
|
Party
A
|
A
copy of the guaranty provided by the Credit Support Provider, if
applicable.
|
Concurrently
with the execution and delivery of the Confirmation unless previously
delivered and still in full force and effect.
|
Yes
|
|||
|
Party
A
|
An
opinion of counsel to such party relating to the enforceability of
the
guaranty reasonably satisfactory in form and substance to Party B,
if
applicable.
|
Concurrently
with the execution and delivery of the Confirmation unless previously
delivered and still in full force and effect.
|
No
|
|||
|
Party
B
|
An
executed copy of the Trust Agreement and other deal documents related
to
this Transaction.
|
Within
30 days after the date of this Agreement.
|
No
|
|||
|
Party
B
|
Each
material amendment, supplement or waiver of the Trust Agreement,
as
proposed from time to time, or any other amendment or modification
of the
Trust Agreement that requires the written consent of Party A under
the
terms of the Trust Agreement.
|
Promptly
upon learning of any proposed amendment, supplement or
waiver.
|
No
|
8
Part
4.
Miscellaneous.
| (a) |
Addresses
for Notices.
For the purposes of Section 12(a) of this
Agreement:
|
| (i) |
Addresses
for
notices or communications to Party
A:
|
|
(1)
|
For
all purposes under this Agreement:
|
ABN
AMRO Bank N.V., Chicago Branch
Global
Documentation Unit
000
X.
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx,
XX 00000
Attention: Treasury
Documentation
Telephone:000-000-0000
Fax: 000-000-0000
|
(2)
|
With
a copy to the Office through which Party A is acting for the purposes
of
the relevant Transactions:
|
ABN
AMRO Bank N.V., Amsterdam Head Office
X.X.
Xxx
000
0000
XX
Xxxxxxxxx
Xxx
Xxxxxxxxxxx
Attention: Operations
Derivatives Markets
Forex
Options
Telephone:
00-00-0000000
Telefax:
00-00-0000000
Swaps
Telephone:
00-00-0000000
Telefax:
00-00-0000000
Interest
Related Products
Telephone
00-00-0000000
Telefax:
00-00-0000000
Credit
Derivatives
Telephone:
00-00-0000000
Telefax:
00-00-0000000
Telex:
16021
Answerback: ABAM NL
Electronic
Messaging System Details: Swift ABNA NL 2A
9
ABN
AMRO Bank N.V., Chicago Branch
000
Xxxx
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
| Attention: | Treasury Operations |
| Telefax: | 000-000-0000 |
| Telephone: | 000-000-0000 |
Electronic
Messaging System Details: ABNA US 33a XXX
ABN
AMRO Bank N.V., London Branch
000
Xxxxxxxxxxx,
Xxxxxx
XX0X 0XX,
Xxxxxx
Xxxxxxx
Attention:
Fixed
Income Derivatives Documentation
Telex: 887366
Answerback: ABNALN G
Telefax: 00
00
0000 0000
Telephone: 00
00
0000 0000
Electronic
Messaging System Details: Swift ABNA XX 0X
| (ii) |
Addresses
for
notices or communications to Party
B:
|
U.S.
Bank National Association
0
Xxxxxxx
Xxxxxx, 0xx Xxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attention:
Structured Finance - LXS 2007-7N
Telephone
No.: (000)
000-0000
Facsimile
No: (000)
000-0000
| (b) |
Process
Agent.
For the 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.
| (c) |
Offices.
The provisions of Section 10(a) will not apply to this
Agreement.
|
| (d) |
Multibranch
Party.
For the purpose of Section 10(c) of this
Agreement:
|
Party
A
is a Multibranch Party and may act through the following Offices: Amsterdam,
Chicago and London.
Party
B
is not a Multibranch Party.
| (e) |
Calculation
Agent.
The Calculation Agent is Party A.
|
10
| (f) |
Credit
Support Document.
Credit Support Document means the credit support annex entered into
between Party A and Party B in relation to this Agreement, and with
respect to Party A, any Eligible Guarantee, if applicable.
|
| (g) |
Credit
Support Provider.
Credit Support Provider means in relation to Party A, (1) Party A
in its
capacity as a party to the Credit Support Document and (2) the guarantor
under any Eligible Guarantee, and in relation to Party B, Party B
in its
capacity as a party to the Credit Support
Document.
|
| (h) |
| (i) |
Netting
of Payments.
Subparagraph (ii) of Section 2(c) of this Agreement will apply to
all
Transactions (in each case starting from the date of this
Agreement).
|
| (j) |
“Affiliate”
will have the meaning specified in Section 14 of this Agreement,
provided
that Party B shall be deemed to have no
Affiliates.
|
| (k) |
Jurisdiction.
Section 13(b) is hereby amended by: (i) deleting in the second line
of
subparagraph (i) thereof the word “non-”: and (ii) deleting the final
paragraph thereof.
|
| (l) |
Waiver
of Jury Trial.
Each party waives, to the fullest extent permitted by applicable
law, any
right it may have to a trial by jury in respect of any suit, action
or
proceeding relating to this Agreement or any Credit Support Document.
Each
party certifies (i) that no representative, agent or attorney of
the other
party or any Credit Support Provider has represented, expressly or
otherwise, that such other party would not, in the event of such
a suit,
action or proceeding, seek to enforce the foregoing waiver and (ii)
acknowledges that it and the other party have been induced to enter
into
this Agreement and provide for any Credit Support Document, as applicable,
by, among other things, the mutual waivers and certifications in
this
Section.
|
| (m) |
Consent
to Recording.
Each party consents to the recording of the telephone conversations
of
trading and marketing personnel of the parties and their Affiliates
in
connection with this Agreement or any potential
transaction.
|
| (n) |
Severability.
If any term, provision, covenant, or condition of this Agreement,
or the
application thereof to any party or circumstance, shall be held to
be
illegal, invalid or unenforceable (in whole or in part) for any reason,
the remaining terms, provisions, covenants and conditions hereof
shall
continue in full force and effect as if this Agreement had been executed
with the illegal, invalid or unenforceable portion eliminated, so
long as
this Agreement as so modified continues to express, without material
change, the original intentions of the parties as to the subject
matter of
this Agreement and the deletion of such portion of this Agreement
will not
substantially impair the respective benefits or expectations of the
parties to this Agreement.
|
| (o) |
Single
Agreement.
Section 1(c) shall be amended by adding the words “, the credit support
annex entered into between Party A and Party B in relation to this
Agreement” after the words “Master Agreement;” provided,
that Section 5(a)(ii) shall not apply to the Credit Support
Document.
|
| (p) |
Local
Business Day.
The definition of Local Business Day in Section 14 of this Agreement
shall
be amended by the addition of the words “or any Credit Support Document”
after “Section 2(a)(i)” and the addition of the words “or Credit Support
Document” after “Confirmation.”
|
11
Part
5.
Other
Provisions.
| (a) |
Definitions.
|
This
Agreement, including each Confirmation and each Swap Transaction, is subject
to
the 2000 ISDA Definitions, as amended, supplemented, updated, and superseded
from time to time (the “Definitions”), as published by the International Swaps
and Derivatives Association, Inc. (“ISDA”) and will be governed in all respects
by the Definitions (except that references to “Swap Transactions” shall be
deemed to be references to “Transactions”). The Definitions are incorporated by
reference in, and made part of, this Agreement and each Confirmation as if
set
forth in full in this Agreement and such Confirmations. In the event of any
inconsistency between the provisions of this Agreement and the Definitions,
this
Agreement will prevail (and, in the event of any inconsistency between any
Confirmation and the Definitions, the Confirmation will control). Any reference
in a Confirmation to any Definitions which are amended or supplemented in this
Schedule shall be deemed to be a reference to such Definitions as so amended
or
supplemented, unless the Confirmation states, by specific reference to any
such
amendment or supplement, that such amendment or supplement will not apply in
respect of the Transaction to which such Confirmation relates.
| (b) |
Downgrade
Provisions.
|
| (i) |
Second
Trigger Failure Condition.
So long as the Second Rating Trigger Requirements apply, Party A
shall, at its own expense use commercially reasonable efforts, as
soon as
reasonably practicable, to either (i) furnish an Eligible Guarantee
of
Party A’s obligations under this Agreement from a guarantor that maintains
the First Trigger Required Ratings and/or the Second Trigger Required
Ratings or (ii) obtain an Eligible Replacement pursuant to Part 5(f)
below
that assumes the obligations of Party A under this Agreement (through
a novation or other assignment and assumption agreement in form and
substance reasonably satisfactory to Party B) or replaces the
outstanding Transactions hereunder with transactions on identical
terms,
except that Party A shall be replaced as
counterparty.
|
| (ii) |
Collateralization
Event.
It shall be a collateralization event (“Collateralization Event”) if (A)
either (i) the unsecured, short-term debt obligations of the Relevant
Entity are rated below “A-1” by Standard & Poor’s Rating Services, a
division of The XxXxxx-Xxxx Companies, Inc. (“S&P”) or (ii) if the
Relevant Entity does not have a short-term rating from S&P, the
unsecured, long-term senior debt obligations of a Relevant Entity
are
rated below “A+” by S&P, or (B) the unsecured, long-term senior debt
obligations or financial strength ratings of the Relevant Entity
are rated
below “A” by Fitch, Inc. (“Fitch”). For the avoidance of doubt, the
parties hereby acknowledge and agree that notwithstanding the occurrence
of a Collateralization Event, this Agreement and each Transaction
hereunder shall continue to be a Swap Agreement for purposes of the
Trust
Agreement. Within 30 calendar days from the date a Collateralization
Event
has occurred and so long as such Collateralization Event is continuing,
Party A shall, at its sole expense, either (i) post collateral in an
amount required to be posted pursuant to terms of the Credit Support
Document (such amount which is the greater of amounts required to
be
posted by Xxxxx’x, S&P and Fitch), (ii)
upon satisfaction of the Rating Agency Condition, furnish an Eligible
Guarantee of Party A’s obligations under this Agreement from a guarantor
that satisfies the Hedge Counterparty Ratings Requirement or (iii)
obtain
an Eligible Replacement that (x) upon satisfaction of the Rating
Agency
Condition (as defined below), assumes the obligations of Party A
under this Agreement (through an assignment and assumption agreement
in
form and substance reasonably satisfactory to Party B) or (y) having
provided prior written notice to S&P and Fitch, replaces the
outstanding Transactions hereunder with transactions on identical
terms,
except that Party A shall be replaced as counterparty; provided
that such Eligible
Replacement,
as of the date of such assumption or replacement, will not, as a
result
thereof, be required to withhold or deduct on account of tax under
the
Agreement or the new Transactions, as applicable, and such assumption
or
replacement will not lead to a Termination Event or Event of Default
occurring under the Agreement or new Transactions, as
applicable.
|
12
“Rating
Agency Condition”
shall
mean first receiving prior written confirmation from S&P and Fitch that
their then-current ratings of the rated Certificates will not be downgraded
or
withdrawn by such Rating Agency.
| (iii) |
Ratings
Event.
It shall be a ratings event (“Ratings Event”) if at any time after the
date hereof, the Relevant Entity shall fail to satisfy the Hedge
Counterparty Ratings Threshold or the Relevant Entity is no longer
rated
by S&P. Within 30 calendar days (or, in the case of a failure to meet
the requirements of subparagraph (a) of the definition of “Hedge
Counterparty Ratings Threshold”, within 10 Local Business Days) from the
date a Ratings Event has occurred and so long as such Ratings Event
is
continuing, Party A shall, at its sole expense, (i) obtain an
Eligible Replacement that (x) upon satisfaction of the Rating Agency
Condition, assumes the obligations of Party A under this Agreement
(through an assignment and assumption agreement in form and substance
reasonably satisfactory to Party B) or (y) having provided prior
written notice to S&P and Fitch, replaces the outstanding Transactions
hereunder with transactions on identical terms, except that Party A
shall be replaced as counterparty; provided
that such Eligible Replacement, as of the date of such assumption
or
replacement, will not, as a result thereof, be required to withhold
or
deduct on account of tax under the Agreement or the new Transactions,
as
applicable, and such assumption or replacement will not lead to a
Termination Event or Event of Default occurring under the Agreement
or new
Transactions, as applicable, or (ii) upon satisfaction of the Rating
Agency Condition, furnish an Eligible Guarantee of Party A’s obligations
under this Agreement from a guarantor that satisfies the Hedge
Counterparty Ratings Requirement and
(iii) upon the occurrence of a Ratings Event, Party A shall immediately
be
required to post collateral in an amount required to be posted pursuant
to
terms of the Credit Support Document (such amount which is the greater
of
amounts required to be posted by Xxxxx’x, S&P and Fitch).
|
| (iv) |
Downgrade
Definitions.
|
| (A) |
“Eligible
Guarantee”
means an unconditional and irrevocable guarantee that is provided
by a
guarantor as principal debtor rather than surety and is directly
enforceable by Party B, where either (A) a law firm has given a legal
opinion confirming that none of the guarantor’s payments to Party B under
such guarantee will be subject to withholding for Tax or (B) such
guarantee provides that, in the event that any of such guarantor’s
payments to Party B are subject to withholding for Tax, such guarantor
is
required to pay such additional amount as is necessary to ensure
that the
net amount actually received by Party B (free and clear of any withholding
tax) will equal the full amount Party B would have received had no
such
withholding been required.
|
| (B) |
“Eligible
Replacement”
means a Transferee (as defined in Part 5(f)(ii) herein) (i) (A) with
the
First Trigger Required Ratings and/or the Second Trigger Required
Ratings
or (B) whose present and future obligations owing to Party B are
guaranteed pursuant to an Eligible Guarantee provided by a guarantor
with
the First Trigger Required Ratings and/or the Second Trigger Required
Ratings and (ii) with the ratings specified in the definition of
Hedge
Counterparty Ratings Requirement below; provided
that no entity shall be an Eligible Replacement unless (A) a legal
opinion
is given by a law firm confirming that none of such entity’s payments to
Party B under this Agreement or its replacement (as applicable) will
be
subject to deduction or withholding for Tax or (B) in the event that
any
of such entity’s payments to Party B are subject to withholding for Tax,
such Eligible Replacement is required to pay such additional amount
as is
necessary to ensure that the net amount actually received by Party
B (free
and clear of any withholding tax) will equal the full amount Party
B would
have received had no such withholding been
required.
|
13
| (C) |
“First
Trigger Required Ratings”
means with respect to an entity, either (i) where the entity is the
subject of a Moody’s Short-term Rating, such entity’s Moody’s Short-term
Rating is “Prime-1” and the entity’s long-term, unsecured and
unsubordinated debt or counterparty obligations are rated “A2” or above by
Moody’s or (ii) where the entity is not the subject of a Moody’s
Short-term Rating, its long-term, unsecured and unsubordinated debt
or
counterparty obligations are rated “A1” or above by
Moody’s.
|
| (D) |
“Hedge
Counterparty Ratings Threshold”
means, with respect to S&P, (a) the unsecured, long-term senior debt
obligations of Party A (or its Credit Support Provider) are rated at
least “BBB-” by S&P, and with respect to Fitch, (b) either (i) the
unsecured, senior debt obligations or financial strength ratings
of
Party A (or its Credit Support Provider), are rated at least “BBB+”
by Fitch or (ii) the unsecured, short-term debt obligations (if any)
of
Party A , are rated at least “F2” by Fitch. For the avoidance of all
doubts, the parties hereby acknowledge and agree that notwithstanding
the
occurrence of a Ratings Event, this Agreement and each Transaction
hereunder shall continue to be a Swap Agreement for purposes of the
Trust
Agreement.
|
| (E) |
“Hedge
Counterparty Ratings Requirement”
means (a) either (i) the unsecured, short-term debt obligations of
the
substitute counterparty (or its Credit Support Provider) are rated
at
least “A-1” by S&P or (ii) if the substitute counterparty does not
have a short-term rating from S&P, the unsecured, long-term senior
debt obligations of the substitute counterparty (or its Credit Support
Provider) are rated at least “A+” by S&P, and (b) either (i) the
unsecured, long-term senior debt obligations of such substitute
counterparty (or its Credit Support Provider) are rated at least
“A” by
Fitch or (ii) the unsecured, short-term debt obligations of such
substitute counterparty (or its Credit Support Provider) are rated
at
least “F1” by Fitch. For the purpose of this definition, no direct or
indirect recourse against one or more shareholders of the substitute
counterparty (or against any Person in control of, or controlled
by, or
under common control with, any such shareholder) shall be deemed
to
constitute a guarantee, security or support of the obligations of
the
substitute counterparty.
|
| (F) |
“Moody’s”
means Xxxxx'x Investors Service,
Inc.
|
| (G) |
“Moody’s
Short-term Rating”
means a rating assigned by Moody’s under its short-term rating scale in
respect of an entity’s short-term, unsecured and unsubordinated debt
obligations.
|
| (H) |
A
“Second
Trigger Failure Condition”
occurs at any time no Relevant Entity maintains the Second Trigger
Required Ratings.
|
| (I) |
“Second
Trigger Required Ratings”
means with respect to an entity (A) either where the entity is the
subject
of a Moody’s Short-term Rating, such entity’s Moody’s Short-term Rating is
“Prime-2” or above and its long-term, unsecured and unsubordinated debt or
counterparty obligations are rated “A3” or above by Moody’s, and (B) where
such entity is not the subject of a Moody’s Short-term Rating, if the
entity’s long-term, unsecured and unsubordinated debt or counterparty
obligations are rated “A3” or above by
Moody’s.
|
14
| (c) |
Additional
Representations.
|
Section
3(a) of this Agreement is hereby amended to include the following additional
representations after paragraph 3(a)(v):
| (i) |
Eligible
Contract Participant.
It is an “eligible contract participant” as defined in the U.S. Commodity
Exchange Act.
|
| (ii) |
Individual
Negotiation.
This Agreement and each Transaction hereunder is subject to individual
negotiation by the parties.
|
| (iii) |
Relationship
between Party A and Party B.
Each of Party A and Party B will be deemed to represent to the other
on
the date on which it enters into a Transaction or an amendment thereof
that (absent a written agreement between Party A and Party B that
expressly imposes affirmative obligations to the contrary for that
Transaction):
|
| (A) |
Principal.
Party A is acting as principal and not as agent when entering into
this
Agreement and each Transaction. Party B is acting not in its individual
capacity but solely as Trustee on behalf of the Supplemental Interest
Trust,
Xxxxxx
XS Trust Mortgage Pass-Through Certificates, Series 2007-7N.
|
| (B) |
Non-Reliance.
Party A 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 advisors as it has deemed necessary. Party
B is
acting not in its individual capacity but solely as Trustee on behalf
of
the Supplemental Interest Trust, Xxxxxx XS Trust Mortgage Pass-Through
Certificates, Series 2007-7N. 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.
|
| (C) |
Evaluation
and Understanding.
It is capable of evaluating and understanding (on its own behalf
or
through independent professional advice), and understands and accepts,
the
terms, conditions and risks of this Agreement and each Transaction
hereunder. It is also capable of assuming, and assumes, all financial
and
other risks of this Agreement and each Transaction
hereunder.
|
| (D) |
Status
of Parties.
The other party is not acting as a fiduciary or an advisor for it
in
respect of that Transaction.
|
| (d) |
Section
4 is hereby amended by adding the following new agreement:
|
Actions
Affecting Representations.
Party B
agrees not to take any action during the term of this Agreement or any
Transaction hereunder that renders or could render any of the representations
and warranties in this Agreement untrue, incorrect, or incomplete, and if any
event or condition occurs that renders or could render any such representation
untrue, incorrect, or incomplete, Party B will immediately give written notice
thereof to Party A.
15
| (e) |
Section
1(c).
For purposes of Section 1(c) of the Agreement, the Transactions evidenced
by Confirmation with Reference IDs: 6344633 and 6344622, each dated
May
31, 2007, between Party A and Party B, as amended from time to time,
shall
be the sole Transactions under the Agreement.
|
| (f) |
Transfer.
|
| (i) |
Section
7 of this Agreement shall not apply to Party A and, subject to Section
6(b)(ii) (provided that to the extent Party A makes a transfer pursuant
to
Section 6(b)(ii) it will provide a prior written notice to the Rating
Agencies of such transfer) and Part 5(f)(ii) below, Party A may not
transfer (whether by way of security or otherwise) any interest or
obligation in or under this Agreement without first satisfying the
Rating
Agency Condition and without the prior written consent of Party
B.
|
| (ii) |
Subject
to Part 5(o) below, Party A may (at its own cost) transfer all or
substantially all of its rights and obligations with respect to this
Agreement to any other entity (a “Transferee”)
that is an Eligible Replacement through a novation or other assignment
and
assumption agreement or similar agreement in form and substance reasonably
satisfactory to Party B; provided that (A) Party B shall determine in
its sole discretion, acting in a commercially reasonable manner,
whether
or not a transfer relates to all or substantially all of Party A’s rights
and obligations under this Agreement, (B) as of the date of such
transfer
the Transferee will not be required to withhold or deduct on account
of a
Tax from any payments under this Agreement unless the Transferee
will be
required to make payments of additional amounts pursuant to Section
2(d)(i)(4) of this Agreement in respect of such Tax, (C) a Termination
Event or Event of Default does not occur under this Agreement as
a result
of such transfer and (D) Party A receives confirmation from each
Rating
Agency (other than Moody’s) that transfer to the Transferee does not
violate the Rating Agency Condition. Following such transfer, all
references to Party A shall be deemed to be references to the
Transferee.
|
| (iii) |
If
an entity has made a Firm Offer (which remains capable of becoming
legally
binding upon acceptance) to be the transferee of a transfer to be
made in
accordance with Part 5(f)(ii) above, Party B shall (at Party A’s cost) at
Party A’s written request, take any reasonable steps required to be taken
by it to effect such transfer.
|
| (iv) |
Except
as specified otherwise in the documentation evidencing a transfer,
a
transfer of all the obligations of Party A made in compliance with
this
Part 5(f) will constitute an acceptance and assumption of such obligations
(and any related interests so transferred) by the Transferee, a novation
of the transferee in place of Party A with respect to such obligations
(and any related interests so transferred), and a release and discharge
by
Party B of Party A from, and an agreement by Party B not to make
any claim
for payment, liability, or otherwise against Party A with respect
to, such
obligations from and after the effective date of the
transfer.
|
| (g) |
Trustee
Capacity. It
is expressly understood and agreed by the parties hereto that (i)
this
Agreement is executed and delivered by U.S. Bank National Association
not
individually or personally but solely as trustee of the Supplemental
Interest Trust, Xxxxxx XS Trust Mortgage Pass-Through Certificates,
Series
2007-7N, in the exercise of the powers and authority conferred and
vested
in it, (ii) each of the representations, undertakings and agreements
herein made on the part of the Supplemental Interest Trust, Xxxxxx
XS
Trust Mortgage Pass-Through Certificates, Series 2007-7N, is made
and
intended not as personal representations, undertakings and agreements
by
U.S. Bank National Association but is made and intended for the purpose
of
binding only the Supplemental Interest Trust, Xxxxxx XS Trust Mortgage
Pass-Through Certificates, Series 2007-7N, (iii) nothing herein contained
shall be construed as creating any liability on the part of U.S.
Bank
National Association, individually or personally, to perform any
covenant
either expressed or implied contained herein, all such liability,
if any,
being expressly waived by the parties hereto and by any Person claiming
by, through or under the parties hereto and (iv) under no circumstances
shall U.S. Bank National Association be personally liable for the
payment
of any indebtedness or expenses of the Trust or be liable for the
breach
or failure of any obligation, representation, warranty or covenant
made or
undertaken by the Supplemental Interest Trust, Xxxxxx XS Trust Mortgage
Pass-Through Certificates, Series 2007-7N, under this
Agreement.
|
16
| (h) |
Proceedings.
Without impairing any right afforded to it under the Trust Agreement
as a
third party beneficiary, Party A shall not institute against or cause
any
other person to institute against, or join any other person in instituting
against the Xxxxxx XS Trust, Series 2007-7N any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings,
or
other proceedings under any federal or state bankruptcy, dissolution
or
similar law, for a period of one year and one day following indefeasible
payment in full of the Certificates.
Nothing shall preclude, or be deemed to stop, Party A (i) from taking
any
action prior to the expiration of the aforementioned one year and
one day
period, or if longer the applicable preference period then in effect,
in
(A) any case or proceeding voluntarily filed or commenced by Party
B or
(B) any involuntary insolvency proceeding filed or commenced by a
Person
other than Party A, or (ii) from commencing against Party B or any
of the
Collateral any legal action which is not a bankruptcy, reorganization,
arrangement, insolvency, moratorium, liquidation or similar
proceeding.
|
| (i) |
Amendments
to Events of Default.
The “Failure to Pay or Deliver” provision in Section 5(a)(i) of the
Agreement is hereby amended by deleting the word “third” in the third line
thereof and inserting the word “first” in place
thereof.
|
| (j) |
Change
of Account.
Section 2(b) of this Agreement is hereby amended by the addition
of the
words “to another account in the same legal and tax jurisdiction as the
original account” following the word “delivery” in the first line
thereof.
|
| (k) |
Item
1115 Agreement.
Party A and Party B hereby agree that the terms of that certain Disclosure
Agreement dated as of May 30, 2007 (the “Item
1115 Agreement”)
among Structured Asset Securities Corporation, Party A, Xxxxxx Brothers
Holdings Inc., Xxxxxx Brothers Inc. and Party B shall be incorporated
by
reference into this Agreement and Party B shall be an express beneficiary
of the Item 1115 Agreement.
|
| (l) |
Trust
Agreement.
|
| (i) |
Capitalized
terms used in this Agreement that are not defined herein and are
defined
in the Trust Agreement shall have the respective meanings assigned
to them
in the Trust Agreement.
|
| (ii) |
Party
B will provide at least ten days’ prior written notice to Party A of any
proposed amendment or modification to the Trust
Agreement.
|
| (m) |
No
Set-off.
|
17
| (i) |
All
payments under this Agreement shall be made without set-off or
counterclaim, except as expressly provided for in Section 2(c), Section
6
or Part 5(q)(vi) below and paragraphs 8(a) and 8(b) of the Credit
Support
Document.
|
| (ii) |
Section
6(e) shall be amended by the deletion of the following sentence:
“The
amount, if any, payable in respect of an Early Termination Date and
determined pursuant to this Section will be subject to any
Set-off.”
|
| (n) |
Notice
of Certain Events or Circumstances.
Each party agrees, upon learning of the occurrence or existence of
any
event or condition that constitutes (or that with the giving of notice
or
passage of time or both would constitute) an Event of Default or
Termination Event with respect to such party, promptly to give the
other
party notice of such event or condition (or, in lieu of giving notice
of
such event or condition in the case of an event or condition that
with the
giving of notice or passage of time or both would constitute an Event
of
Default or Termination Event with respect to the party, to cause
such
event or condition to cease to exist before becoming an Event of
Default
or Termination Event); provided that failure to provide notice of
such
event or condition pursuant to this Part 5(m) shall not constitute
an
Event of Default or a Termination Event. Each party agrees to provide
to
the other party any other notice reasonably expected to be provided
to
facilitate compliance with the terms of this Agreement and the Credit
Support Document.
|
| (o) |
Regarding
Party A. Party
B acknowledges and agrees that Party A has had and will have no
involvement in and, accordingly Party A accepts no responsibility
for: (i)
the establishment, structure, or choice of assets of Party B; (ii)
the
selection of any person performing services for or acting on behalf
of
Party B; (iii) the selection of Party A as the Counterparty; (iv)
the
terms of the Certificates; (v) other than as provided in the Disclosure
Agreements, the preparation of or passing on the disclosure and other
information contained in any offering circular or offering document
for
the Certificates, the Trust Agreement, or any other agreements or
documents used by Party B or any other party in connection with the
marketing and sale of the Certificates; (vi) the ongoing operations
and
administration of Party B, including the furnishing of any information
to
Party B which is not specifically required under this Agreement or
the
Disclosure Agreements; or (vii) any other aspect of Party B’s
existence.
|
| (p) |
Amendments.
This Agreement will not be amended unless the Rating Agency Condition
is
satisfied. Notwithstanding
any other provision of this Agreement, this Agreement shall not be
amended, no Early Termination Date shall be effectively designated
by
Party B, and no transfer of any rights or obligations under this
Agreement
shall be made unless each Rating Agency has been given prior written
notice of such amendment, designation or
transfer.
|
| (q) |
Non-Petition
and Limited Recourse.
The liability of Party B under this Agreement is limited in recourse
to
the assets of the Trust Fund, and to distributions of interest proceeds
and principal proceeds thereon applied in accordance with the terms
of the
Trust Agreement. Upon application of and exhaustion of all of the
assets
of the Trust Fund (and proceeds thereof) in accordance with the Trust
Agreement, Party A shall not be entitled to take any further steps
against
Party B to recover any sums due but still unpaid hereunder or thereunder,
all claims in respect of which shall be extinguished. Notwithstanding
the
foregoing or anything herein to the contrary, Party A shall not be
precluded from declaring an Event of Default or from exercising any
other
right or remedy as set forth in this Agreement or the Trust
Agreement.
|
| (r) |
Calculations.
Notwithstanding Section 6 of this Agreement, so long as Party A is
(A) the
sole Affected Party in respect of an Additional Termination Event
or a Tax
Event Upon Merger or (B) the Defaulting Party in respect of any Event
of
Default, paragraphs (i) to (vi) below shall apply:
|
| (i) |
The
definition of “Market
Quotation”
shall be deleted in its entirety and replaced with the
following:
|
18
“Market
Quotation” means,
with respect to one or more Terminated Transactions, a Firm Offer which is
(1)
made by a Reference Market-maker that is an Eligible Replacement, (2) for an
amount that would be paid to Party B (expressed as a negative number) or by
Party B (expressed as a positive number) in consideration of an agreement
between Party B and such Reference Market-maker to enter into a transaction
(the
“Replacement Transaction”) that would have the effect of preserving for such
party the economic equivalent of any payment or delivery (whether the underlying
obligation was absolute or contingent and assuming the satisfaction of each
applicable condition precedent) by the parties under Section 2(a)(i) in respect
of such Terminated Transactions or group of Terminated Transactions that would,
but for the occurrence of the relevant Early Termination Date, have been
required after that Date, (3) made on the basis that Unpaid Amounts in respect
of the Terminated Transaction or group of Transactions are to be excluded but,
without limitation, any payment or delivery that would, but for the relevant
Early Termination Date, have been required (assuming satisfaction of each
applicable condition precedent) after that Early Termination Date is to be
included and (4) made in respect of a Replacement Transaction with terms
substantially the same as those of this Agreement (save for the exclusion of
provisions relating to Transactions that are not Terminated Transactions).
| (ii) |
The
definition of“Settlement
Amount” shall
be deleted in its entirety and replaced with the
following:
|
“Settlement
Amount” means,
with respect to any Early Termination Date, an amount (as determined by Party
B)
equal to the Termination Currency Equivalent of the amount (whether positive
or
negative) of any Market Quotation for the relevant Terminated Transaction or
group of Terminated Transactions that is accepted by Party B so as to become
legally binding; provided that:
| (A) |
If,
on the day falling ten Local Business Days after the day on which
the
Early Termination Date is designated or such later day as Party B
may
specify in writing to Party A (but in either case no later than the
Early
Termination Date) (such day the “Latest Settlement Amount Determination
Day”), no Market Quotation for the relevant Terminated Transaction or
group of Terminated Transactions has been accepted by Party B so
as to
become legally binding and one or more Market Quotations have been
made
and remain capable of becoming legally binding upon acceptance, the
Settlement Amount shall equal the Termination Currency Equivalent
of the
amount (whether positive or negative) of the lowest of such Market
Quotations (for the avoidance of doubt, the lowest negative number
shall
equal the largest absolute value such that, for example, negative
3 shall
be lower than negative 2); or
|
| (B) |
If,
on the Latest Settlement Amount Determination Day, no Market Quotation
for
the relevant Terminated Transaction or group of Terminated Transactions
is
accepted by Party B so as to become legally binding and no Market
Quotations have been made and remain capable of becoming legally
binding
upon acceptance, the Settlement Amount shall equal Party B’s Loss (whether
positive or negative and without reference to any Unpaid amounts)
for the
relevant Terminated Transaction or group of Terminated
Transactions.
|
| (iii) |
For
the purpose of clause (4) of the definition of Market Quotation,
Party B
shall determine in its sole discretion, acting in a commercially
reasonable manner, whether a Firm Offer is made in respect of a
Replacement Transaction with commercial terms substantially the same
as
those of this Agreement (save for the exclusion of provisions relating
to
Transactions that are not Terminated Transactions); provided,
however,
that notwithstanding the provisions of this Part 5(r), nothing in
this
Agreement shall preclude Party A from obtaining Market
Quotations.
|
19
| (iv) |
At
any time on or before the Latest Settlement Amount Determination
Day at
which two or more Market Quotations remain capable of becoming legally
binding upon acceptance, Party B shall be entitled to accept only
the
lowest of such Market Quotations.
|
| (v) |
If
Party B requests Party A in writing to obtain Market Quotations,
Party A
shall use its reasonable efforts to do so before the Latest Settlement
Amount Determination Day.
|
| (vi) |
If
the Settlement Amount is a negative number, Section 6(e)(i)(3) of
this
Agreement shall be deleted in its entirety and replaced with the
following:
|
Second
Method and Market Quotation. If
Second
Method and Market Quotation apply, (1) Party B shall pay to Party A an amount
equal to the absolute value of the Settlement Amount in respect of the
Terminated Transactions, (2) Party B shall pay to Party A the Termination
Currency Equivalent of the Unpaid Amounts owing to Party A and (3) Party A
shall
pay to Party B the Termination Currency Equivalent of the Unpaid Amounts owing
to Party B; provided that, (i) the amounts payable under (2) and (3) shall
be
subject to netting in accordance with Section 2(c) of this Agreement and (ii)
notwithstanding any other provision of this Agreement, any amount payable by
Party A under (3) shall not be netted-off against any amount payable by Party
B
under (1).
[Signature
page follows]
20
IN
WITNESS WHEREOF,
the
parties have executed this document by their duly authorized officers with
effect from the date specified on the first page hereof.
|
ABN
AMRO BANK N.V.
|
XXXXXX
XS TRUST, SERIES 2007-7N
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|
|
(Name
of Party)
|
(Name
of Party)
|
|
|
By:
U.S. Bank, National Association, not in its individual capacity,
but
solely as Trustee
|
||
|
Name: |
Name: |
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Title:
|
Title:
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|
|
Date:
|
Date:
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|
|
Name: |
||
|
Title:
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||
|
Date:
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21
