ISDAâ International Swaps and Derivatives Association, Inc. MASTER AGREEMENT dated as of March 31, 2008
(Multicurrency-Cross
Border)
ISDAâ
International
Swaps and Derivatives Association, Inc.
MASTER
AGREEMENT
dated
as
of March 31, 2008
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XXXXXX
BROTHERS
SPECIAL
FINANCING INC.
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XXXXX
FARGO BANK, N.A., NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE
OF
THE TRUST FOR STRUCTURED ADJUSTABLE RATE MORTGAGE LOAN TRUST MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES
2008-1
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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:¾
1. Interpretation
(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.
(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
purposes of the relevant Transaction.
(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.
2. Obligations
(a) General
Conditions.
(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.
(ii)
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.
(iii)
Each obligation of each party under Section 2(a)(i) is subject to (1) the
condition precedent that no Event of Default or Potential Event of Default
with
respect to the other party has occurred and is continuing, (2) the condition
precedent that no Early Termination Date in respect of the relevant Transaction
has occurred or been effectively designated and (3) each other applicable
condition precedent specified 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.
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XXXXXX
BROTHERS
SPECIAL
FINANCING INC.
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XXXXX
FARGO BANK, N.A., NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE
OF
THE TRUST FOR STRUCTURED ADJUSTABLE RATE MORTGAGE LOAN TRUST MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2008-1
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(Name
of Party)
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(Name
of Party)
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Name:
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Name:
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Title:
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Title:
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Date:
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Date:
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18
Revised
3/7/02
(Multicurrency-Cross
Border)
SCHEDULE
to
the
Master
Agreement
dated
as
of March 31, 2008
between
XXXXXX
BROTHERS SPECIAL FINANCING INC.
(“Party
A”),
a
corporation organized under the laws of
the
State
of Delaware
and
XXXXX
FARGO BANK, N.A., NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE OF THE
TRUST FOR STRUCTURED ADJUSTABLE RATE MORTGAGE LOAN TRUST
MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2008-1 (“Party
B”)
All
terms used herein and not otherwise defined are given their meaning in the
Trust
Agreement dated as of March 1, 2008 among Structured Asset Securities
Corporation, as depositor Aurora Loan Services LLC, as master servicer, and
Xxxxx Fargo Bank, N.A, as trustee (the “Trust Agreement”)
Part
1: Termination Provisions
In
this
Agreement:-
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(a)
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“Specified
Entity”
means in relation to Party A for the purpose
of:-
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Section
5(a)(v),
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Not
applicable.
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Section
5(a)(vi),
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Not
applicable.
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Section
5(a)(vii),
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Not
applicable.
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Section
5(b)(iv),
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Not
applicable.
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and
in relation to Party B for the purpose of:-
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Section
5(a)(v),
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Not
applicable.
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Section
5(a)(vi),
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Not
applicable.
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Section
5(a)(vii),
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Not
applicable.
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Section
5(b)(iv),
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Not
applicable.
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(b)
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“Specified
Transaction”
will have the meaning specified in Section
14
of
this Agreement.
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(c)
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(i)
The “Failure
to Pay”
provisions of Section
5(a)(i)
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.”
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(ii)
The “Breach
of Agreement”
provisions of Section
5(a)(ii)
will apply to Party A and will not apply to Party
B.
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(iii)
The “Credit
Support Default”
provisions of Section
5(a)(iii)
will apply to Party A and will not apply to Party B except that Section
5(a)(iii)(i) will apply to Party B’s obligations under Paragraph 3(b) of
the Credit Support Annex; provided however, that with respect to
any
Credit Support Annex, Section 5(a)(iii) will only apply to Party
A in the
event that such failure is not remedied on or before the third Local
Business Day after notice of such failure is given to Party
A
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Notwithstanding
Sections 5(a)(i) and 5(a)(iii), any failure by Party A to comply with or perform
any obligation to be complied with or performed by Party A under any Credit
Support Annex from time to time entered into between Party A and Party B in
relation to this Master Agreement shall not be an Event of Default unless (A)
(i) a Moody’s Ratings Event has occurred and is continuing and at least 30 Local
Business Days have elapsed since such Moody’s Ratings Event first 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; or (B) (i) an S&P Ratings
Event has occurred and is continuing and at least 10 Local Business Days have
elapsed since the last time the S&P Ratings Event first 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.
19
(iv)
The
“Misrepresentation”
provisions of Section
5(a)(iv)
will
apply to Party A and will not apply to Party B.
(v)
The
“Default
under Specified Transaction”
provisions of Section 5(a)(v)
will
apply to Party A and will not apply to Party B.
(vi)
“Cross
Default”
provisions of Section
5(a)(vi)
will
apply to Party A and will not apply to Party B.
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The
following provisions apply:
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“Specified
Indebtedness”
will have the meaning specified in Section
14
of
this Agreement.
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“Threshold
Amount”
means the lesser of (i) USD 100 million and (ii) two percent (2%)
of the
Stockholders’ Equity of Xxxxxx Brothers Holdings Inc. (“Xxxxxx Brothers
Holdings Inc.” or “Holdings”), in the case of Party A and Holdings (or its
equivalent in any other currency).
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(vii)
The
“Bankruptcy”
provisions
of Section
5(a)(vii)
will
apply to Party A and to Party B; provided that clauses (2), (7) and (9) thereof
shall not apply to Party B. Clause
(4) of Section 5(a)(vii) will not apply to Party B to the extent that it refers
to proceedings or petitions instituted or presented by Party A or any of its
Affiliates. Clause (6) of Section 5(a)(vii) will not apply to Party B to the
extent that it refers to (i) any appointment that is contemplated or effected
by
the Trust Agreement or (ii) any appointment to which Party B has not become
subject. Clause (8) of Section 5(a)(vii) will not apply to Party B to the extent
that it applies to Section 5(a)(vii)(2), (4), (6), and (7) (except to the extent
that such provisions are not disapplied with respect to Party B).
(viii)
The “Merger
without Assumption”
provisions of Section
5(a)(viii)
will
apply to Party A and will apply to Party B.
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(d)
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(i)
The “Illegality”
provisions of Section
5(b)(i)
will apply to Party A and will apply to Party B.
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(ii)
The “Tax
Event”
provisions of Section
5(b)(ii)
will apply to both parties provided that 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)” shall be deleted.
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(iii)
The “Tax
Event Upon Merger”
provisions of Section
5(b)(iii)
will apply to both parties, 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.
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Section
6(b)(ii)
will apply, provided that the words “or if a Tax Event Upon Merger occurs
and the Burdened Party is the Affected Party” shall be
deleted.
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(iv)
The “Credit
Event Upon Merger”
provisions of Section
5(b)(iv)
will not apply to Party A and will not apply to Party
B.
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(e)
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The
“Automatic
Early Termination”
provision of Section
6(a)
will not apply to Party A and will not apply to Party
B.
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(f)
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Payments
on Early Termination.
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20
(A) For
the
purpose of Section
6(e)
of this
Agreement, Market Quotation and Second Method will apply.
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(B)
Calculations.
Notwithstanding Section 6 of this Agreement, so long as Party A is
(A) the
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:
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(i) The
definition of “Market Quotation” shall be deleted in its entirety and replaced
with the following:
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“Market
Quotation”
means, with respect to one or more Terminated Transactions, a Firm
Offer
which is (1) made by a Reference Market-maker, (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 for 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 Termination 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).”
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(ii)
The
definition of “Settlement Amount” shall be deleted in its entirety and replaced
with the following:
21
“”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:
(1) 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; and
(2) 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 sub-paragraph (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).
(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 against any amount payable by Party B
under (1).”
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(g)
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“Termination
Currency”
means USD.
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(h)
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Reserved.
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(i)
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Additional
Termination Events
will apply. Each of the following shall constitute an Additional
Termination Event:
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(A)
Reserved.
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(B) (I)
S&P Collateralization
Event.
An
S&P Collateralization Event has occurred and is continuing and Party A has
failed to comply with or perform any obligation to be complied with or performed
by Party A in accordance with the "Downgrade Provisions" as set forth in Part
5(f)(ii) and a S&P Ratings Event has neither occurred nor is continuing.
(II) S&P Ratings
Event.
An
S&P Ratings Event has occurred and is continuing and (i) 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 Annex or (ii) at least 60 calendar
days or more have elapsed since such S&P Ratings Event first occurred.
(III) Moody’s
Collateralization Event.
A
Moody's
Collateralization Event has occurred and is continuing, and Party A has failed
to comply with or perform any obligation to be complied with or performed by
Party A in accordance with the "Downgrade Provisions" as set forth in Part
5(f)(ii) and either (i) no Moody’s Ratings Event has occurred and is continuing
or (ii) less than 30 Local Business Days have elapsed since the last time that
a
Moody’s Ratings Event had occurred and was continuing. Any event which
constitutes an Additional Termination Event pursuant to this Section
1(h)(i)(B)(III) shall not constitute an Event of Default.
(IV) Moody’s
Ratings Event.
A
Moody’s Ratings Event has occurred and is continuing and 30 or more Local
Business Days have elapsed since the last time that a Ratings Event had occurred
and was continuing and 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 the terms hereof. Any
event which constitutes an Additional Termination Event pursuant to this Section
1(h)(i)(B) (IV) shall not constitute an Event of Default.
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For
the purpose of the foregoing Termination Events in this Part 1(i)(B),
Party A shall be the sole Affected
Party.
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(C)
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Termination
of Trust Agreement.
Party B or the Trust Fund (as defined in the Trust Agreement) is
terminated. For the purpose of the foregoing Termination Event, Party
B
shall be the sole Affected Party.
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(D)
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Amendment
of Trust Agreement.
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; provided, however, that it shall not be an Additional
Termination Event where such amendment or modification involves the
appointment of any successor trustee, master servicer or servicer
pursuant
to the terms of the Trust Agreement. For the purpose of the foregoing
Termination Event, Party B shall be the sole Affected Party.
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(E)
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Certificate
Reduction. The
Class Principal Amounts of all the rated Certificates are reduced
to zero.
For the purpose of the foregoing Termination Event, Party B shall
be the
sole Affected Party
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(F)
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Master
Servicer’s Option to Purchase Loans.
Notice of the Master 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. For the
purpose
of the foregoing Termination Event, Party B shall be the sole Affected
Party
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23
Part
2: Tax Representations
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(a)
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Payer
Tax Representations.
For the purpose of Section
3(e)
of
this Agreement, Party A and Party B will each make the following
representation: None.
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(b)
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Payee
Tax Representations.
For the purpose of Section
3(f)
of
this Agreement, Party A represents that it is a corporation duly
organized
and validly existing under the laws of the State of Delaware.
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(c)
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Tax
Representations in Confirmations. For
purposes of Sections
2(d)(i)(4)
and 3(f),
any payee tax representation specified in a Confirmation under this
Agreement shall be deemed to be specified in this
Schedule.
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(d)
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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.
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(e)
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Indemnificable
Tax.
The definition of “Indemnifiable Tax” in Section 14 is deleted in its
entirety and replaced with the following:
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“Indemnifiable
Tax” means, in relation to payments by Party A, any Tax and, in relation
to payments by Party B, no Tax.
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24
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:-
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Party
required to
deliver
document
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Form/Document/
Certificate
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Date
by which
to
be Delivered
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Party
A and Party B
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Forms
and/or documents described in
Section
4(a)(iii)
of
the Agreement.
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Upon
reasonable demand by the other
party.
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(b) Other
documents to be delivered are:-
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Party
required
to
deliver
document
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Form/Document/
Certificate
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Date
by which
to
be Delivered
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Covered
by
Section
3(d)
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Party
A and Party B
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For
each party, an incumbency certificate with respect to each signatory
to
this Agreement and the Credit Support Documents.
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Upon
execution of this Agreement.
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Yes
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Party
A
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A
copy of the annual report of its Credit Support Provider containing
audited consolidated financial statements for such fiscal year certified
by independent public accountants and prepared in accordance with
generally accepted accounting principles consistently
applied.
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Upon
request.
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Yes
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Party
A
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For
its most recent fiscal quarter, a copy of the unaudited financial
statements of its Credit Support Provider, prepared in accordance
with
generally accepted accounting principles consistently
applied.
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Upon
request.
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Yes
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25
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Party
required
to
deliver
document
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Form/Document/
Certificate
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Date
by which
to
be Delivered
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Covered
by
Section
3(d)
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Party
A and Party B
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(i)
In the case of Party A, a copy of the resolutions or other action
of the
board of directors of each of Party A and its Credit Support Provider
and
(ii) in the case of Party B, (x) a resolution of the board of directors
certified by a secretary or assistant secretary of Party B, or (y)
an
Trust Agreement or other document of Party B, pursuant to which Party
B is
authorized to enter into this Agreement, each Credit Support Document
to
which it is a party, and each Transaction from time to time entered
into
hereunder (the “Authorizing Resolution”).
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Upon
execution of this Agreement.
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Yes
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Party
A
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A
guarantee of Holdings substantially in the form of Exhibit
A
to
this Schedule.
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Upon
execution of this Agreement
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No
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Party
B
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An
opinion of counsel to Party B that is addressed to Party
A.
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Upon
execution of this Agreement
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No
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Party
A
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An
opinion of counsel to Party A substantially in the form of Exhibit
C to
this Schedule.
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Upon
execution of this Agreement
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No
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Party
B
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Trust
Agreement
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Upon
execution of this Agreement
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Yes
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Party
B
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All
reports to the Trustee pursuant to 9.24 of the Trust Agreement.
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At
such time as each report is delivered to the Trustee
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Yes
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Party
B
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All
reports pursuant to 4.03 of the Trust Agreement
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In
accordance with the terms of the Trust Agreement
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Party
B
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All
reports that go to the Rating Agencies.
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As
applicable.
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Yes
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Party
B
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Each
material amendment, supplement or waiver to 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.
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Promptly
upon learning of any proposed amendment, supplement or waiver.
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No
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26
Part
4: Miscellaneous
(a) Addresses
for Notices.
For the
purpose of Section
12(a)
of this
Agreement:-
Address
for notices or communications to Party A:-
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Address:
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Xxxxxx
Brothers Special Financing Inc.
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c/x
Xxxxxx Brothers Inc.
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Legal
Compliance and Audit Group
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Capital
Markets Contracts - Legal
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000
Xxxxxxx Xxxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention:
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Documentation
Manager
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Telephone
No.:
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(000)
000-0000
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Facsimile
No.:
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(000)
000-0000
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For
all purposes.
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Address
for notices or communications to Party B:-
Xxxxx
Fargo Bank, N.A., Trustee
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Client Manager, SASCO SERIES 2008-1
Facsimile:
(000) 000-0000
Phone:
(000) 000-0000
With
a
copy to:
Aurora
Loan Services LLC, as Master Servicer
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxx X. Xxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
For
all
purposes.
(b) Process
Agent.
For the
purpose of Section
13(c)
of this
Agreement:-
Party
A
appoints as its Process Agent: Not applicable.
|
Party
B appoints as its Process Agent: Not
applicable.
|
|
(c)
|
Offices.
The provisions of Section
10(a)
will apply to this Agreement.
|
|
(d)
|
Multibranch
Party.
For the purpose of Section
10(c)
of
this Agreement:-
|
Party
A
is not a Multibranch Party.
|
Party
B is not a Multibranch Party.
|
|
(e)
|
Calculation
Agent.
The Calculation Agent is Party A.
|
|
(f)
|
Credit
Support Document.
|
27
|
In
the case of Party A: (1) A guarantee of Party A's obligations hereunder
substantially in the form annexed hereto as Exhibit
A
to
this Schedule or any Eligible Guarantee. (2) The Credit Support Annex
which supplements, forms part of, and is subject to this
Agreement.
|
In
the
case of Party B: The Credit Support Annex which supplements, forms part of,
and
is subject to this Agreement.
(g) Credit
Support Provider.
Credit
Support Provider means in relation to Party A: Holdings so long as any
subsidiary of Holdings is Party A or any other guarantor, if applicable, under
an Eligible Guarantee.
Credit
Support Provider means in relation to Party B: None.
|
(h)
|
|
(i)
|
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.
|
|
(j)
|
Netting
of Payments. Subparagraph
(ii)
of
Section
2(c)
of
this Agreement will apply.
|
|
(k)
|
“Affiliate”
will
have the meaning specified in Section
14
of
this Agreement, provided that Party B shall be deemed to have no
Affiliates; provided,
however,
that (except for the purpose of Part 1(c)(vi)) with respect to Party
A,
such definition shall be understood to exclude Xxxxxx Brothers Derivative
Products Inc. and Xxxxxx Brothers Financial Products
Inc.
|
|
(l)
|
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”.
|
Part
5: Other Provisions
|
(a)
|
General
Conditions. Section
2(a)(iii)
is hereby amended by (X) inserting in the third line thereof after
the
words “and is continuing, (2)” and before the words “the condition
precedent” the following phrase “the condition precedent that no
Additional Termination Event has occurred and is continuing with
respect
to which the other party is an Affected Party and with respect to
which
all outstanding Transactions are Affected Transactions, (3)” and (Y)
delete the symbol “(3)” before the words “each other applicable condition”
and substitute the symbol “(4)” in lieu
thereof.
|
|
(b)
|
Accuracy
of Specified Information. Section
3(d)
is
hereby amended by inserting in the third line thereof after the words
“in
every material respect” and before the period the phrase “or, in the case
of audited or unaudited financial statements, a fair presentation,
in all
material respects, of the financial condition of the relevant
person.”
|
|
(c)
|
No
Violation or Conflict Representation. Section
3(a)(iii)
is
hereby amended by inserting in the second line thereof after the
words
“constitutional documents” and before the words “, any order or judgment”
the phrase “(including, but not limited to, the Trust Agreement, as
amended, and any and all resolutions, investment policies, guidelines,
procedures or restrictions)”; provided,
such amendment shall be applicable only with respect to the
Representations of Party B.
|
|
(d)
|
Representations. Section
3
is
hereby amended by adding the following subsections after subsection
(f)
thereof:
|
28
|
(g)
|
No
Agency. Party
A is acting as principal and not as agent when entering into this
Agreement, any Credit Support Document to which it is a party, and
each
Transaction. Party B is acting not in its individual capacity but
solely
as Trustee on behalf of Trust.
|
|
(h)
|
Eligible
Contract Participant.
It
is an “eligible contract participant” within the meaning of Section 1a(12)
of the Commodity Exchange Act, as
amended.
|
|
(i)
|
Non-Reliance.
Party A is acting for its own account and it has made its own independent
decisions to enter into each 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 Trust. It is not relying on any communication (written or oral)
of the
other party as 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.
|
|
(j)
|
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.
|
|
(k)
|
Status
of Parties.
The other party is not acting as a fiduciary for or an adviser to
it in
respect of that Transaction.
|
|
(e)
|
Additional
Representations and Warranties of Party B.
Party B represents to Party A in accordance with Section
3 of
the Agreement (which representations will be deemed to be repeated
by
Party B at all times until the termination of this Agreement)
that:
|
|
(i)
|
Constitutional
Documents. Party
B is in compliance, in all material respects, with its constitutional
documents (including, but not limited to, the Trust Agreement, as
amended
from time-to-time, and any and all resolutions, investment policies,
guidelines, procedures or restrictions), and each Transaction contemplated
hereunder is and will be an authorized and permitted transaction
thereunder and an Authorizing Resolution is in full force and
effect.
|
|
(ii)
|
Cap
Agreement.
(i) Party A is a Cap Counterparty, (ii) this Agreement (and each
Transaction entered into hereunder) is a Cap Agreement and (iii)
the
obligations and liabilities of Party B under this Agreement and the
relevant Credit Support Documents constitute the secured obligations
of
Party B under the Trust Agreement .
|
|
(iii)
|
Compliance
with Laws.
Party B is in compliance, in all respects, with all applicable laws,
rules, regulations, interpretations, guidelines, procedures, and
policies
of applicable regulatory authorities affecting Party B, this Agreement,
the Transactions, or the performance of Party B’s obligations
hereunder.
|
(f) Downgrade
Provisions.
(i) It
shall
be a collateralization event (a “Collateralization
Event”)
if:
29
(A)
with
respect to each Relevant Entity that is a Financial Institution, either:
(i)
the
Short-term Rating of such Relevant Entity is "A-2"
from
S&P, or
(ii)
if
such Relevant Entity does not have a Short-term Rating from S&P, the
Long-term Rating of such Relevant Entity is "A",
“A-“
or
“BBB+”
from
S&P
(such
event, an “S&P
Collateralization Event”),
or
(B)
with
respect to each Relevant Entity, either
(i)
such
Relevant Entity has both a Long-term Rating and Short-term Rating from Moody's
and (x) the Long-term Rating of such Relevant Entity is "A3"
or
below from Moody's or (y) the Short-term Rating of such Relevant Entity is
"P-2"
or
below from Moody's, or
(ii)
no
Short-term Rating is available from Moody’s and the Long-term Rating of such
Relevant Entity is "A2"
or
below from Moody's, or
(iii)
such Relevant Entity has no Long-term Rating from Moody's
(such
event, a “Moody's
Collateralization Event”).
“Relevant
Entity”
means
Party A or Party A’s Credit Support Provider, as applicable.
|
(ii)
|
Without
prejudice to Party A's obligations under the Credit Support Annex,
during
any period in which a Collateralization Event is occurring, Party A
shall, at its own expense either
|
(I)
post
collateral according to the terms of the Credit Support Annex, or
(II)
within
(a) thirty (30) Business Days of a Moody’s Collateralization Event or (b) 60
calendar days in the case of an S&P Collateralization Event (so long as
collateral was posted according to the terms of the Credit Support Annex within
10 Business Days): (i) furnish an Eligible Guarantee (as defined below) of
Party
A's obligations under this Agreement from a guarantor that satisfies the Hedge
Counterparty Ratings Requirement (as defined below); or (ii) obtain a substitute
counterparty (and provide prior written notice to each Rating Agency with
respect thereto) that (a) satisfies the Hedge Counterparty Ratings Requirement
and (b) assumes the obligations of Party A under this Agreement (through an
assignment and assumption agreement in form and substance reasonably
satisfactory to Party B and subject to the Rating Agency Condition) or,
subject to prior written notice to the Rating Agencies, replaces the outstanding
Transactions hereunder with transactions on identical terms, except that
Party A shall be replaced as counterparty, provided that such substitute
counterparty, as of the date of such assumption or replacement, must 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 must not lead to a Termination Event or Event of Default occurring
in respect of the new transactions, as applicable; or
(III)
take
such
other steps as may be allowed subject to satisfaction of the relevant Rating
Agency Condition.
“Eligible
Guarantee”
means an
unconditional and irrevocable guarantee (a) in a form identical to that attached
hereto as Exhibit A (except for the name, address and the jurisdiction of the
guarantor so long as the jurisdiction has a tax treaty in place with the United
States that precludes the withholding or deduction of any amount payable to
Party B by the Guarantor pursuant to the Guarantee), and subject to prior
written notice to the Rating Agencies, or that otherwise satisfies the Rating
Agency Condition or (b) that is provided by a guarantor as principal debtor
rather than surety and is directly enforceable by Party B and subject to
satisfaction of the Rating Agency Condition, 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.
30
An
entity
shall satisfy the “Hedge
Counterparty Ratings Requirement”
if (a)
either (i) the Relevant Entity is not a Financial Institution and its Short-term
Rating is at least “A-1”
by
S&P or, if the Relevant Entity does not have a Short-term Rating from
S&P, its Long-term Rating is at least “A+”
from
S&P or (ii) the Relevant Entity is a Financial Institution and (1) its
Short-term Rating is at least “A-2”
from
S&P, or if it does not have a Short-term Rating from S&P, its Long-term
Rating is at least “BBB+”
from
S&P, and (2) such Relevant Entity posts collateral pursuant to Credit
Support Annex and (b) either (i) the Relevant Entity has a Long-term Rating
of
at least “A3”
by
Moody’s and the Relevant Entity has a Short-term Rating of at least
“P-2”
from
Moody’s (if such entity has both a Long-term Rating and Short-term Rating from
Moody's) or (ii) if such entity does not have a Short-term Rating from Moody’s,
the Relevant Entity has a Long-term Rating of at least “A3”
from
Moody’s. For the purpose of this definition, no direct or indirect recourse
against one or more shareholders of the entity (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 entity.
|
(iii)
|
It
shall be a ratings event (“Ratings
Event”)
if at any time after the date hereof
|
(A)
(1)
if
the
Relevant Entity is a Financial Institution, the Short-term Rating of each
Relevant Entity is “A-3”
or
below from S&P or, if such Relevant Entity does not have a Short-term Rating
from S&P, a Long-term Rating “BBB”
or
below from S&P or the Relevant Entity is no longer rated by S&P or
(2)
if
the
Relevant Entity is not a Financial Institution, its Short-term Rating is
“A-2”
or
below from S&P, or if such Relevant Entity does not have a Short-term
Rating, its Long-term Rating is “A”
or
below from S&P, or such Relevant Entity is no longer rated by S&P (such
event, an “S&P
Ratings Event”)
or
(B)
no
Relevant Entity satisfies paragraph (b) of the definition of Hedge Counterparty
Ratings Requirement (defined in Part 5(f)(ii) above) (such event, a
“Moody's
Ratings Event”).
(iv) Following
a Ratings Event, Party A shall take the following actions:
(a) in
the
case of an S&P Ratings Event, Party A, at its sole expense, shall post
collateral according to the terms of the Credit Support Annex, and as soon
as
reasonably practicable but no later than 60 calendar days after the Ratings
Event, use commercially reasonable efforts to
(x)
furnish an Eligible Guarantee of Party A’s obligations under this Agreement from
a guarantor that satisfies the Hedge Counterparty Ratings Requirement or
(y)
obtain a substitute counterparty (and provide prior written notice to each
Rating Agency with respect thereto), that (A) satisfies the Hedge Counterparty
Ratings Requirement and (B) assumes the obligations of Party A under this
Agreement (through an assignment and assumption agreement in form and substance
reasonably satisfactory to Party B and subject to satisfying the Rating
Agency Condition or in form and substance which maintains the obligations of
Party A on identical terms, (except for the name, address and the jurisdiction
of the substitute counterparty so long as the jurisdiction has a tax treaty
in
place with the United States that precludes the withholding or deduction of
any
amount payable to Party B by the substitute counterparty) and subject to prior
written notice to the Rating Agencies) or replaces the outstanding Transactions
hereunder with transactions on identical terms, (except for the name, address
and the jurisdiction of the substitute counterparty so long as the jurisdiction
has a tax treaty in place with the United States that precludes the withholding
or deduction of any amount payable to Party B by the substitute counterparty),
subject to prior written notice to the Rating Agencies, provided that such
substitute counterparty, as of the date of such assumption or replacement,
must
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 must not lead to a Termination Event or Event of Default
occurring in respect of the new transactions, as applicable; or
31
(z)
take
other steps subject to satisfaction of the relevant Rating Agency Condition;
and
(b) in
the
case of a Moody's Ratings Event, Party A shall at its sole expense (i) use
commercially reasonable efforts to, as soon as reasonably practicable, (A)
furnish an Eligible Guarantee of Party A's obligations under this Agreement
from
a guarantor that satisfies paragraph (b) of the definition of Hedge Counterparty
Ratings Requirement, (B) procure a transfer in accordance with Part 5(i) below,
or (C) take such other steps as Moody’s may allow to satisfy the Rating Agency
Condition from Moody’s.
(g) Third-Party
Beneficiary.
Party B
agrees with Party A that Party A shall be an express third-party beneficiary
of
the Trust Agreement.
|
(h)
|
Set-off.
|
(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, Part 1(f)(vi)
above
and in Paragraphs 8(a) or (b) of the Credit Support Annex attached hereto.
(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.”
|
(i)
|
Transfer
and Assignment.
Notwithstanding anything to the contrary in Section
7
of
the Agreement, Party A may at its own cost, assign its rights and
obligations under the Agreement, in whole or in part (but in increments
no
less than the entire trade confirmation), (1) to any Affiliate of
Holdings
effective upon delivery to Party B of the executed guarantee by Holdings,
in favor of Party B, of the obligations of such Affiliate, such guarantee
to be identical to the guarantee then in effect of the obligations
of the
transferor (except for the name, address and the jurisdiction of
the
guarantor so long as the jurisdiction has a tax treaty in place with
the
United States that precludes the withholding or deduction of any
amount
payable to Party B by the guarantor) or that otherwise satisfies
the
Rating Agency Condition, or (2) to any entity with the same or higher
Long-term Rating (as determined by S&P or Moody’s) as Holdings at the
time of such transfer, in each case provided that (A) the transferee
is an
Eligible Replacement and (B) in the case of a transfer in part
substantially all of Party A’s obligations under this Agreement are
transferred to the transferee, as determined by Party B acting in
a
commercially reasonable manner. In the event of such a transfer,
this
Agreement shall be replaced with an Agreement having identical terms
(except for the name, address and the jurisdiction of the
transferee so
long as the jurisdiction has a tax treaty in place with the United
States
that precludes the withholding or deduction of any amount payable
to Party
B by the transferee) or with an agreement that otherwise satisfies
the
Rating Agency Condition. Notwithstanding the foregoing, any assignment
hereunder shall not be permitted if, as a result thereof, a payment
becomes subject to any deduction or withholding for or on account
of any
tax which would not have arisen had such assignment not been effected
or
such transfer would cause an Event of Default or Termination event
to
occur. Party A will provide prior written notice to each Rating Agency
of
any such assignment. If an entity has made a Firm Offer (which remains
capable of becoming legally binding upon acceptance) to be the transferee
of a transfer, Party B shall at Party A’s written request take any
reasonable steps required to be taken by it to effect such transfer.
|
|
All
collateral posted by Party A shall be returned to Party A immediately
upon
the assumption by a substitute counterparty of all of Party A’s
obligations hereunder.
|
|
(j)
|
Notices.
For the purposes of subsections (iii)
and (v)
of Section
12(a),
the date of receipt shall be presumed to be the date sent if sent
on a
Local Business Day or, if not sent on a Local Business Day, the date
of
receipt shall be presumed to be the first Local Business Day following
the
date sent.
|
32
|
(k)
|
Service
of Process.
The third sentence of Section
13(c)
shall be amended by adding the following language at the end thereof:
"if
permitted in the jurisdiction where the proceedings are initiated
and in
the jurisdiction where service is to be
made."
|
|
(l)
|
Arms’-Length
Transaction.
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) the preparation of or passing on the
disclosure and other information contained in any offering circular
or
similar 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 (vii) any other aspect of Party B’s existence.
|
|
(m)
|
Amendments. Section
9(b)
is
hereby amended by adding at the end thereof the sentence: “In addition,
any amendment or modification of this Agreement shall be subject
to the
Rating Agency Condition.”
|
|
(n)
|
Amendments
to Trust Agreement.
Party B or the Depositor on its behalf will provide Party A with
at least
ten (10) Business Days prior written notice of any proposed amendment,
supplement or modification to its Trust Agreement where consent of
Party A
to such amendment, supplement or modification is required under the
Trust
Agreement.
|
|
(o)
|
No
Bankruptcy Petition. Party
A agrees that it will not, for a period of one year and one day (or
any
such longer period required in the appropriate jurisdiction), after
the
payment in full of all of the Certificates issued under the /Trust
Agreement, acquiesce, petition, invoke or otherwise 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, insolvency or similar law 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, including, without limitation, the Trustee, in
any
bankruptcy, reorganization, arrangement, insolvency, moratorium or
liquidation proceedings already commenced or other analogous proceedings
already commenced under applicable law. This provision shall survive
the
termination of this Agreement.
|
|
(p)
|
Party
B Agent.
Party A acknowledges that Party B has appointed the Trustee as its
agent
under the Trust Agreement to carry out certain functions on behalf
of
Party B, and that the Trustee shall be entitled to give notices and
to
perform and satisfy the obligations of Party B hereunder on behalf
of
Party B.
|
|
(q)
|
Limited
Recourse.
The liability of Party B under this Agreement is limited in recourse
to
the assets of the Class A1 Certificates under 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
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)
|
Additional
Definitions. Section
14
is
hereby amended by adding the following definitions in their appropriate
alphabetical order:
|
“Collateralization
Event”
shall have the meaning given in Part 5(f)(i) above.
“Eligible
Guarantee”
shall have the meaning given in Part 5(f)(ii) above.
“Eligible
Replacement”
means an entity (A) that satisfies the definition of Hedge Counterparty Ratings
Requirement, set forth in Part 5(f)(ii) above or (B) whose present and future
obligations owing to Party B are guaranteed pursuant to an Eligible Guarantee
provided by a guarantor which satisfies paragraph (b) of the definition of
Hedge
Counterparty Ratings Requirement.
33
“Financial
Institution”
means a bank, broker-dealer, structured investment vehicle, derivatives product
company or insurance company or Xxxxxx Brothers Holdings Inc. or otherwise
determined to be a Financial Institution by S&P.
“Firm
Offer”
means an offer which, when made, was considered by the Reference Market-maker
that provided such offer to be capable of and intended to become legally binding
if accepted.
|
“Hedge
Counterparty Ratings Requirement”
shall have the meaning given in Part 5(f)(ii) above.
|
|
“Long-term
Rating”
means the rating of the unsecured, unguaranteed and otherwise unsupported
long-term senior debt-obligation.
|
“Moody’s”
means
Xxxxx’x Investor Services, Inc.
|
“Moody’s
Collateralization Event”
shall have the meaning given in Part 5(f)(i) above.
|
|
“Moody’s
Ratings Event”
shall have the meaning given in Part 5(f)(iii) above.
|
|
“Rating
Agency”
shall mean each of S&P and Xxxxx’x.
|
|
“Rating
Agency Condition”
means, with respect to any particular proposed act or omission to
act
hereunder, that the party acting or failing to act has consulted
with each
applicable Rating Agency then providing a rating of any Class of
Certificates and has received from each Rating Agency a written
confirmation that the proposed action or inaction would not cause
such
Rating Agency to downgrade or withdraw its then-current rating of
any
Class of Certificates.
|
|
“Ratings
Event”
shall have the meaning given in Part 5(f)(iii) above.
|
|
“Relevant
Entity”
shall have the meaning given in Part 5(f)(i) above.
|
|
“S&P”
means Standard & Poor’s Ratings Services, a division of XxXxxx-Xxxx,
Inc.
|
|
“S&P
Collateralization Event”
shall have the meaning given in Part 5(f)(i)
above.
|
|
“S&P
Ratings Event”
shall have the meaning given in Part 5(f)(iii) above.
|
“Short-term
Rating”
means
the rating of the unsecured, unguaranteed and otherwise unsupported short-term
debt-obligation.
“Stockholders'
Equity”
means
with respect to an entity, at any time, the sum at such time of (i) its capital
stock (including preferred stock) outstanding, taken at par value, (ii) its
capital surplus and (iii) its retained earnings, minus (iv) treasury stock,
each
to be determined in accordance with generally accepted accounting principles
consistently applied.
“Trust
Agreement”
shall
have the meaning given on the first page of this Schedule.
“USD”
means
United States Dollars.
All
terms
used herein and not otherwise defined are given their meaning in the Trust
Agreement.
|
(s)
|
Waiver
of Trial By Jury. Insofar
as is permitted by law, each party irrevocably waives any and all
rights
to trial by jury in any legal proceeding in connection with this
agreement
or any transaction, and acknowledges that this waiver is a material
inducement to the other party’s entering into this agreement and each
transaction hereunder.
|
34
|
(t)
|
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
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 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. It shall in particular be understood that
this
provision shall not affect the “single agreement” concept of Section 1(c)
of the Master Agreement
|
|
(u)
|
Guarantee
Demand. If
Party A fails to pay punctually any amounts under this Agreement,
to the
extent that Party B desires to exercise its rights under the Guarantee,
the Trustee shall on behalf of Party B, make the written demand for
payment pursuant to the Guarantee.
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(v)
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Trustee
Capacity.
It is expressly understood and agreed by the parties hereto that
(i) this
Agreement is executed and delivered by Trustee not individually or
personally but solely as Trustee of the Trust, 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 party
of
the Trust is made and intended not as personal representations,
undertakings and agreements by Trustee but is made and intended for
the
purpose of binding only the Trust, (iii) nothing herein contained
shall be
construed as creating any liability on the party of Trustee, 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 Trustee be personally
liable for the payment of any indebtedness or expenses of the Trust
or be
liable for the breach of failure of any obligation, representation,
warranty or covenant made or undertaken by the Trust under this Agreement.
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(w)
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Other
criteria.
Notwithstanding,
and without prejudice to, any other provision herein, in the event
that
S&P has other published criteria with respect to the downgrade of a
counterparty in effect at the time of such a downgrade of Party A,
Party A
shall be entitled to elect to take such other measures specified
in such
published criteria subject to satisfaction of the Rating Agency Condition
by S&P.
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(
x)
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Notifications.
Notwithstanding any other provision of this Agreement, no Early
Termination Date shall be effectively designated by Party B unless
each
Rating Agency has been given prior written notice of such
designation.
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(y)
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Escrow
Payments.
If (whether by reason of the time difference between the cities in
which
payments are to be made or otherwise), it is not possible for simultaneous
payments to be made on any date on which both parties are required
to make
payments hereunder, either party may, at its option and in its sole
discretion, notify the other party that payments on that date are
to be
made in escrow. In this case, deposit of the payment due earlier
on that
date shall be made by 2:00 p.m. (local time at the place for the
earlier
payment) on that date with an escrow agent selected by the notifying
party, accompanied by irrevocable payment instructions (1) to release
the
deposited payment to the intended recipient upon receipt by the escrow
agent of the required deposit of the corresponding payment from the
other
party on the same date accompanied by irrevocable payment instructions
to
the same effect or (2) if the required deposit of the corresponding
payment is not made on that same date, to return the payment deposited
to
the party that paid it into escrow. The party that elects to have
payments
made in escrow shall pay all costs of the escrow arrangements and
shall
cause those arrangements to provide that the intended recipient of
the
payment due to be deposited first shall be entitled to interest on
that
deposited payment for each day in the period of its deposit at the
rate
offered by the escrow agent for that day for overnight deposits in
the
relevant currency in the office where it holds that deposited payment
(at
11:00 a.m. local time on that day) if that payment is not released
by 5:00
p.m. local time on the date it is deposited for any reason, other
than the
intended recipient’s failure to make the escrow deposit it is required to
make hereunder in a timely fashion.
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35
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(z)
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Recording
of Conversations. Each
party consents to the recording of telephone conversations between
trading, marketing and other relevant personnel of the parties in
connection with this Agreement or any potential Transaction. Promptly
upon
the request by a party, the other party will provide a copy of such
recording to the party making the request.
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(aa)
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Section
1(c).
For purposes of Section
1(c)
of
the Agreement, the Transaction evidenced by the Confirmation with
Reference ID: 3736743, dated March 31, 2008 between Party A and Party
B,
as amended from time to time, shall be the only Transaction under
the
Agreement. This Transaction is an interest rate cap in respect of
which
(a) Party B is the purchaser and (b) Party B pays the relevant premium
amount in full (an “Upfront Premium”) at the inception of this
Transaction, and has no further payment or delivery obligations under
Section 2(a)(i) whether absolute or contingent, subsequent to the
payment
of such Upfront Premium.
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(ab)
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Fully
Paid Transactions.
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(i) The
condition precedent in Section 2(a)(iii)(l) does not apply to a payment and
delivery owing by a party if the other party shall have satisfied in full all
its payment or delivery obligations under Section 2(a)(i) of this Confirmation
and shall at the relevant time have no further payment or delivery obligations,
whether absolute or contingent under Section 2(a)(i).
(ii) Notwithstanding
the terms of Sections 5 and 6 of this Agreement, if at any time and so long
as
one of the parties to this Agreement (“X”) shall have satisfied in full its
payment obligations under Section 2(a)(i) of this Agreement and shall at the
time have no future payment obligations, whether absolute or contingent, under
such Section, then unless the other party is required pursuant to appropriate
proceedings to return to X or otherwise returns to X upon demand of X any
portion of such payment, (a) the occurrence of an event described in Section
5(a) of this Agreement with respect to X shall not constitute an Event of
Default or a Potential Event of Default with respect to X as the Defaulting
Party except for Section 5(a)(iii)(i) as it applies to Party B’s obligations
under Paragraph 3(b) of the Credit Support Annex and (b) the other party (“Y”)
shall be entitled to designate an Early Termination Date pursuant to Section
6
of that agreement only as a result of the occurrence of a Termination Event
set
forth in (i) either Section 5(b)(i) or 5(b)(ii) of this Agreement with respect
to Y as the Affected Party or (ii) Section 5(b)(iii) with respect to Y as the
Burdened Party.
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(ac)
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Item
1115 Agreement.
Party A and Party B hereby agree that the terms of that certain Disclosure
Agreement dated as of march 28, 2008 (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.
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36
The
parties executing this Schedule have executed the Master Agreement and have
agreed as to the contents of this Schedule.
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XXXXXX
BROTHERS
SPECIAL
FINANCING INC.
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XXXXX
FARGO BANK, N.A., NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE
OF
THE TRUST FOR STRUCTURED ADJUSTABLE RATE MORTGAGE LOAN TRUST MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2008-1
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Party
A
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Party
B
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Name:
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Name:
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Title:
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Title:
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Date:
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Date:
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37
