ISDA® International Swap and Derivatives Association, Inc. MASTER AGREEMENT dated as of April 27, 2007
(Multicurrency—Cross
Border)
ISDA®
International
Swap and Derivatives Association, Inc.
dated
as
of April 27, 2007
THE
ROYAL BANK OF SCOTLAND PLC
|
and
|
XXXXX
FARGO BANK, N.A., solely in its capacity as Yield Maintenance
Administrator on behalf of the Yield Maintenance Trust with
respect to
HarborView Mortgage Loan Trust Mortgage Loan Pass-Through Certificates,
Series 2007-3
|
("Party
A")
|
("Party
B")
|
have
entered and/or anticipate entering into one or more transactions (each
a
“Transaction”) that are or will be governed by this Master
Agreement, which includes the schedule (the “Schedule”),
and the documents and other confirming evidence (each a
“Confirmation”) exchanged between the parties confirming those
Transactions.
Accordingly,
the parties agree as follows:—
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 purpose 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.
(b) Change
of Account. Either
party may change its account for receiving a payment or delivery by
giving notice to the other party at least five Local Business Days
prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a reasonable objection
to such change.
(c) Netting.
If
on any
date amounts would otherwise be payable:—
(i) in
the
same currency; and
(ii) in
respect of the same Transaction,
by
each
party to the other, then, on such date, each party's obligation to
make payment
of any such amount will be automatically satisfied and
discharged and, if the aggregate amount that would otherwise have been
payable
by one party exceeds the aggregate amount that would otherwise have
been
payable by the other party, replaced by an obligation upon
the party by whom the larger aggregate amount would have been
payable to pay
to the other party the excess of the larger aggregate amount over the
smaller
aggregate amount.
The
parties may elect in respect of two or more Transactions that a net
amount will
be determined in respect of all amounts
payable on the same date in the same currency in respect of such
Transactions, regardless of
whether such amounts are payable in respect of the same Transaction.
The election may be made in the Schedule or a Confirmation
by specifying that subparagraph (ii) above will not apply to
the Transactions identified as being subject to the election, together
with the starting date (in which case subparagraph (ii)
above will not, or will cease to, apply to such Transactions from such
date). This election may be made separately for different
groups of Transactions and will apply separately to each pairing of
Offices through which the parties make and receive payments or
deliveries.
(d) Deduction
or Withholding for Tax.
(i) Gross-Up.
All
payments under this Agreement will be made without any deduction or
withholding for or on account of any Tax unless such deduction or
withholding is required by any applicable law, as modified by the
practice of any relevant governmental revenue
authority, then in
effect. If a party is so required to deduct or withhold, then that
party (“X”)
will:—
(1) promptly
notify the other party (“Y”) of such requirement;
(2) pay
to
the relevant authorities the full amount required to be
deducted or withheld (including the full amount required to
be deducted or withheld from any additional amount paid by X to Y
under this Section 2(d)) promptly upon the earlier of
determining that such deduction or withholding is required
or receiving notice that such amount has been assessed against
Y;
(3) promptly
forward to Y an official receipt (or a certified copy), or
other documentation reasonably acceptable to Y, evidencing such
payment to such authorities; and
(4) if
such
Tax is an Indemnifiable Tax, pay to Y, in addition to the payment
to which Y is otherwise entitled under this Agreement,
such additional amount as is necessary
to ensure that the net amount
actually received by Y (free and clear of Indemnifiable Taxes,
whether assessed
against X or Y) will equal the full amount Y would have received had
no such deduction or withholding been required. However, X will
not be required to pay any additional amount to Y to the
extent that it would not be required to be paid but for:—
(A) the
failure by Y to comply with or perform any agreement contained in
Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the
failure of a representation made by Y pursuant to Section 3(f) to
be accurate and true unless such failure would not have
occurred but for (I) 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 (II) a Change in Tax Law.
2
(ii) Liability.
If:—
(1) X
is
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, to make any deduction
or withholding in respect of which X
would not be required to pay an additional amount to Y under Section
2(d)(i)(4);
(2) X
does
not so deduct or withhold; and
(3) a
liability resulting from such Tax is assessed directly against X,
then,
except to the extent Y has satisfied or then satisfies the liability
resulting
from such Tax, Y will promptly pay to X the amount of such
liability (including any related liability for interest, but
including any related liability for penalties only if Y has failed to
comply with or perform any agreement contained in Section
4(a)(i), 4(a)(iii) or 4(d)).
(e) Default
Interest; Other Amounts. Prior
to
the occurrence or effective designation of an Early
Termination Date in respect of the relevant Transaction, a party that
defaults in the performance of any payment obligation
will, to the extent permitted by law and subject to
Section 6(c), be required to pay interest
(before as well
as after judgment) on the overdue amount to the other party on demand
in the
same currency
as such overdue amount, for the period from (and including) the
original due date for payment to (but excluding) the date of
actual payment, at the Default Rate. Such interest will be calculated
on
the basis of daily compounding
and the actual number of days elapsed. If, prior to the occurrence
or
effective designation
of an Early Termination Date in respect of the relevant
Transaction, a party defaults in the performance of any obligation
required to be settled by delivery, it will compensate
the other party on demand
if
and to the extent provided for in the relevant Confirmation or
elsewhere in this Agreement.
3. Representations
Each
party represents to the other party (which representations will be
deemed
to be repeated
by each party on each date on which a Transaction is entered
into and, in the
case
of the representations
in
Section 3(f), at all times until the termination of this
Agreement) that:—
(a) Basic
Representations.
(i) Status.
It
is
duly organised and validly existing under the laws of the
jurisdiction of its organisation or incorporation and, if
relevant under such laws, in good standing;
(ii) Powers.
It
has
the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party,
to
deliver this Agreement and any other
documentation relating to this Agreement that it is required by
this Agreement to deliver and to perform its obligations under this
Agreement and any obligations it has under any Credit Support Document
to
which it is a party and has taken all necessary action to
authorise such execution, delivery and performance;
(iii) No
Violation or Conflict.
Such
execution, delivery and
performance do not
violate or conflict with any law applicable to it, any
provision of its constitutional documents, any order or judgment
of any court or other agency of government applicable to it or any of
its assets or any contractual restriction binding on or affecting
it or any of its assets;
(iv) Consents.
All
governmental and other consents that are required to have been
obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party have been obtained and
are in full force and effect and all conditions of any such consents
have been complied with; and
(v) Obligations
Binding. Its
obligations under
this Agreement and any
Credit Support Document to which it is a party constitute
its legal, valid and binding obligations, enforceable in accordance
with their respective terms (subject to applicable
bankruptcy, reorganisation, insolvency,
moratorium or similar laws affecting creditors' rights generally and
subject, as to enforceability, to equitable principles of general
application (regardless of whether enforcement is sought in a
proceeding in equity or at law)).
3
(b) Absence
of Certain Events. No
Event
of Default or Potential Event of Default or, to its knowledge,
Termination Event
with respect to it has occurred
and is
continuing and
no
such event
or
circumstance would occur as a
result of its entering into or performing its
obligations under this Agreement
or any
Credit Support Document to which it is a party.
(c) Absence
of Litigation.
There
is
not pending or, to its knowledge, threatened against it or any of its
Affiliates any action, suit or proceeding
at law or in equity or before any court,
tribunal, governmental body, agency or official or any arbitrator
that is likely to affect the legality, validity or enforceability
against it of this Agreement or
any Credit Support Document
to which
it is a party or its ability to perform its obligations
under this Agreement or such Credit Support Document.
(d) Accuracy
of Specified Information. All
applicable information
that
is
furnished in writing by or on behalf of it to the other
party and is identified for the purpose of this Section 3(d) in the
Schedule is, as of the date of the information, true,
accurate and complete in every material respect.
(e) Payer
Tax Representation. Each
representation specified in the Schedule as being made by it for
the purpose of this Section 3(e) is accurate and true.
(f) Payee
Tax Representations. Each
representation specified in the Schedule as being made by it for
the purpose of this Section 3(f) is accurate and true.
4. Agreements
Each
party agrees with the other that, so long as either party has or may
have any
obligation under this Agreement or under any Credit Support
Document to which it is a party:—
(a) Furnish
Specified Information. It
will
deliver to the other party or, in certain cases under
subparagraph (iii) below, to such government or taxing authority as
the other party reasonably directs:—
(i) any
forms, documents or certificates relating to taxation specified in
the
Schedule or any Confirmation;
(ii) any
other
documents specified in the Schedule or any Confirmation; and
(iii) upon
reasonable demand by such other party, any form or document that may
be required or reasonably requested in writing in order to allow
such other party or its Credit Support Provider to
make a payment under this Agreement or any applicable Credit Support
Document without any deduction or withholding for or on account
of any Tax or with such deduction or withholding at a
reduced rate (so long as the completion, execution or submission of such
form or document would not materially prejudice the legal or
commercial position of the party in receipt of such demand),
with any such form or document to be accurate and completed in a
manner reasonably satisfactory to such other party and to be
executed
and to be delivered with any
reasonably required certification,
in
each
case by the date specified in the Schedule or such Confirmation or,
if none is
specified, as soon as reasonably practicable.
(b) Maintain
Authorisations. It will
use
all reasonable efforts to maintain in full force and effect all
consents of any governmental or other authority that are required to
be obtained by it with respect to this Agreement or any
Credit Support Document to which
it
is a party and will use
all
reasonable efforts to obtain any that may become necessary
in the future.
(c) Comply
with Laws. It
will
comply in all material respects with all applicable laws and orders to
which it may
be subject if failure
so to
comply would materially impair its ability to perform its obligations
under this Agreement or any Credit Support Document to which it is a
party.
(d) Tax
Agreement. It
will
give notice of any failure of a representation made by it
under Section 3(f) to be accurate and true promptly upon
learning of such failure.
(e) Payment
of Stamp Tax. Subject
to Section 11, it will pay any Stamp Tax levied or imposed upon
it or in respect
of its execution or performance
of this
Agreement by
a jurisdiction in which it is incorporated,
4
organised,
managed and controlled, or considered to have its seat, or in which
a branch
or office through which it is
acting
for the purpose of this Agreement is located
(“Stamp
Tax Jurisdiction”) and will indemnify the other party
against any Stamp Tax levied or imposed upon
the
other party or in respect of the other party's execution or performance
of this Agreement by any such
Stamp
Tax Jurisdiction which is not also a Stamp Tax Jurisdiction
with respect to the other party.
5. Events
of Default and Termination Events
(a) Events
of Default. The
occurrence at any time with respect to a party or, if
applicable, any Credit Support Provider of
such party or any Specified
Entity
of such party of any of the following events constitutes
an event of default (an “Event of Default”) with respect to such
party:—
(i) Failure
to Pay or Deliver. Failure
by the party to make, when due, any payment under this
Agreement or delivery under Section 2(a)(i) or 2(e) required to be
made by it if such failure is not remedied on or before the third
Local Business Day after notice of such failure is given to the
party;
(ii) Breach
of Agreement. Failure
by the party to comply with or perform any agreement or
obligation (other than an obligation to make any payment under this
Agreement or delivery under Section 2(a)(i) or 2(e) or to give
notice of a Termination Event or any agreement or obligation
under Section 4(a)(i), 4(a)(iii) or 4(d)) to be complied with or
performed by the party in accordance with this Agreement if
such failure is not remedied on or before the thirtieth day
after notice of such failure is given to the
party;
(iii) Credit
Support Default.
(1) Failure
by the party or any Credit Support Provider of such party to
comply with or perform any agreement or obligation to be
complied with or performed by it in accordance
with any Credit Support Document if such failure is continuing after
any applicable grace period has elapsed;
(2) the
expiration or termination
of such
Credit Support Document or the failing or ceasing
of such Credit
Support Document to be in full force and
effect
for the purpose of this Agreement (in either case
other than in accordance with its terms)
prior
to the satisfaction
of all obligations of such party
under each Transaction to which
such
Credit Support Document relates without the written consent
of the other party; or
(3) the
party
or such
Credit Support
Provider
disaffirms, disclaims, repudiates or rejects, in whole or in
part, or challenges the validity of, such Credit Support Document;
(iv) Misrepresentation.
A
representation (other than a representation under Section 3(e) or (f))
made or repeated
or deemed to have been made or repeated by the party or
any Credit Support
Provider of such
party in this Agreement or any Credit Support Document proves
to have been
incorrect or misleading
in any
material
respect when made or repeated or deemed to have been made
or repeated;
(v) Default
under Specified Transaction. The
party, any Credit Support Provider of such party or
any applicable Specified
Entity of such party (1) defaults under a Specified Transaction and, after
giving effect
to any applicable notice requirement or grace period, there occurs
a
liquidation of, an
acceleration of obligations
under, or an
early
termination of, that Specified Transaction, (2) defaults,
after giving effect to any applicable notice requirement or grace
period, in making any payment or delivery due on the last
payment, delivery or exchange date of, or any payment
on early termination of, a Specified Transaction (or such
default continues for at least three Local Business Days if there
is no applicable notice requirement or grace period) or (3)
disaffirms, disclaims, repudiates or rejects, in whole or in
part, a Specified Transaction (or such action is taken by any
person or entity appointed or empowered to operate it or act
on its behalf);
(vi) Cross
Default. If
“Cross
Default” is specified in
the
Schedule as applying to the party, the occurrence or existence
of (1) a default, event of default or other similar condition or event
(however
5
described)
in respect of such
party,
any Credit Support Provider of such party or any applicable
Specified Entity of such party under one or more agreements or
instruments relating to Specified Indebtedness of any of
them (individually or collectively) in an aggregate amount of
not less than the applicable Threshold
Amount (as
specified in the Schedule) which has resulted in such Specified
Indebtedness becoming, or becoming capable at such time of being declared,
due and payable under such agreements or
instruments, before it would
otherwise have been due and payable or (2) a default
by such party, such Credit Support Provider or such Specified Entity
(individually or collectively) in making one or more
payments on the due date thereof
in an aggregate
amount
of not less than the applicable Threshold Amount under such
agreements or instruments (after giving effect to any
applicable notice requirement or grace period);
(vii) Bankruptcy.
The
party, any Credit Support Provider
of such
party or any applicable Specified Entity of such
party:—
(1) is
dissolved (other than pursuant to a consolidation, amalgamation or
merger); (2) becomes
insolvent or is
unable to
pay
its debts or fails or admits in writing
its
inability generally to pay its debts as they become due; (3)
makes a general assignment, arrangement or composition
with or for the benefit of its creditors; (4) institutes or has
instituted against it a proceeding seeking a judgment
of insolvency or bankruptcy or any other relief under
any bankruptcy or insolvency law or
other similar law affecting
creditors' rights, or a petition is presented for its
winding-up or liquidation, and, in the case of any such proceeding or
petition instituted or presented against it, such proceeding
or petition (A) results in a judgment of insolvency or
bankruptcy or the entry of an order for relief or the making of an
order for its winding-up or liquidation or (B) is
not
dismissed, discharged, stayed or restrained in each
case
within 30 days of the institution
or presentation thereof; (5) has
a
resolution
passed
for its winding-up, official management or
liquidation (other than pursuant to a consolidation,
amalgamation or merger); (6) seeks or becomes subject to the
appointment of an administrator, provisional liquidator,
conservator, receiver,
trustee, custodian or other similar official
for it
or for all or substantially all its assets; (7) has a
secured party take possession of all or substantially all its
assets or has a distress, execution, attachment,
sequestration
or other legal process
levied,
enforced or sued on or against all or substantially all its
assets and such secured party maintains possession, or
any such process
is
not dismissed, discharged, stayed or restrained, in each
case
within 30 days thereafter; (8) causes or is subject to any event
with respect to it which, under the applicable laws of any
jurisdiction, has an analogous effect to any of the events specified
in clauses (1) to (7) (inclusive);
or (9) takes any action in
furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the foregoing acts; or
(viii) Merger
Without Assumption. The
party
or any Credit Support Provider of such party
consolidates or amalgamates
with, or merges with or into,
or
transfers all or substantially all its assets
to, another entity and, at the time of such consolidation,
amalgamation, merger or transfer:—
(1) the
resulting, surviving or transferee entity fails
to
assume all the obligations of such party
or such Credit Support Provider under this Agreement or any Credit
Support Document to which it or its predecessor was a party
by operation of law or pursuant to an agreement
reasonably satisfactory to the other party to this Agreement;
or
(2) the
benefits of any Credit Support Document fail to extend (without the
consent of the other party) to the performance by such
resulting, surviving or transferee entity of its
obligations under this Agreement.
(b) Termination
Events. The
occurrence at any time with respect to a party or, if
applicable, any Credit Support Provider of
such party or any Specified
Entity
of such party of any event specified below constitutes
an Illegality if the event is specified in (i) below, a Tax Event if
the event is specified in (ii) below or a Tax
Event Upon Merger if the event is specified in (iii) below, and, if
specified to be
applicable, a Credit Event
6
Upon
Merger if the event is specified pursuant to (iv) below
or an
Additional Termination Event if the event
is specified pursuant to (v) below:—
(i) Illegality.
Due
to
the
adoption of, or any change in, any
applicable law after the date on which
a Transaction is entered into, or due to the promulgation of, or
any change in, the interpretation by any court, tribunal or
regulatory authority with competent jurisdiction of
any applicable law after such date, it becomes
unlawful (other than as a result of a breach by the party
of Section 4(b)) for such party (which will be the
Affected Party):—
(1) to
perform any absolute or contingent obligation to make a payment
or delivery or to receive a payment or delivery in
respect of such Transaction or to comply with any other
material provision of this Agreement relating to such Transaction;
or
(2) to
perform, or for any Credit Support
Provider of such
party to
perform, any contingent or other obligation which the
party (or such Credit Support Provider) has under any Credit
Support Document relating to such Transaction;
(ii) Tax
Event. Due
to
(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) a Change
in Tax Law, the party (which will be the Affected Party)
will, or there is a substantial likelihood that it will, on
the next succeeding Scheduled Payment Date (1) be required to pay to
the other party an additional amount in respect of an
Indemnifiable Tax under Section 2(d)(i)(4) (except
in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount is required to
be deducted or withheld for or on account of a Tax (except in
respect of interest under Section 2(e), 6(d)(ii) or 6(e))
and no additional amount is required to be paid in respect of
such Tax under Section 2(d)(i)(4) (other than by reason of
Section 2(d)(i)(4)(A) or (B));
(iii) Tax
Event Upon Merger. The
party
(the “Burdened Party”) on the next succeeding Scheduled
Payment Date will
either (1) be required to pay an additional
amount
in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii)
or 6(e)) or (2) receive a
payment from which an amount has been deducted or withheld for or
on account of any Indemnifiable Tax
in respect of which the other
party is
not required to pay an additional amount (other than by
reason of Section 2(d)(i)(4)(A) or (B)), in either case as a
result of a party consolidating or amalgamating with,
or merging with or into, or transferring all or substantially all
its assets to, another entity (which will be the Affected Party) where
such action does not constitute an event described in
Section 5(a)(viii);
(iv) Credit
Event Upon Merger. If
“Credit Event Upon Merger” is specified in the Schedule as applying
to the party,
such party (“X”), any Credit Support Provider of X or any applicable
Specified Entity of X
consolidates or amalgamates
with, or merges with or into,
or
transfers all or substantially all its assets
to, another entity and such action does
not
constitute an event described
in
Section 5(a)(viii) but the creditworthiness of the
resulting, surviving or transferee entity is materially
weaker
than that of X, such Credit Support
Provider or such Specified Entity,
as
the
case may be, immediately prior
to such action (and, in such event, X or its successor or
transferee, as appropriate, will be the Affected Party); or
(v) Additional
Termination Event. If
any
“Additional Termination Event” is specified in the
Schedule or any Confirmation as applying, the occurrence of such event
(and, in such event, the Affected Party or Affected Parties
shall be as specified for such Additional Termination Event in
the Schedule or such Confirmation).
(c) Event
of Default and Illegality. If
an
event or circumstance which would otherwise constitute or
give rise to an Event of Default also constitutes an Illegality,
it will be treated as an Illegality and will not
constitute an Event of Default.
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6. Early
Termination
(a) Right
to Terminate Following Event of Default. If
at any
time an Event of Default with respect to a party (the
“Defaulting Party”) has occurred and is then continuing, the other
party (the “Non-defaulting Party”) may, by
not
more than 20 days notice to
the
Defaulting Party specifying the relevant Event of Default,
designate a day not earlier than the day such notice is effective as
an Early Termination Date in respect of
all outstanding Transactions. If, however, “Automatic Early
Termination” is specified in the Schedule as
applying to a party, then an Early Termination Date in respect of
all outstanding Transactions will occur immediately upon the
occurrence with respect to such party of an Event
of Default specified in Section 5(a)(vii)(l), (3), (5),
(6)
or,
to the extent analogous thereto, (8), and as of the time immediately
preceding the institution of the relevant proceeding or the
presentation of the relevant petition upon the
occurrence with respect
to such party of an Event of Default
specified in Section 5(a)(vii)(4) or, to the extent
analogous thereto, (8).
(b) Right
to Terminate Following Termination Event.
(i) Notice.
If
a
Termination Event occurs, an Affected Party will, promptly upon
becoming aware of
it, notify the other
party, specifying the nature of that Termination Event
and
each Affected Transaction
and will also give
such other information about
that Termination Event as the
other
party may reasonably
require.
(ii) Transfer
to Avoid Termination Event. If
either
an Illegality under Section 5(b)(i)(l) or a Tax
Event occurs and there is only one Affected Party, or if a Tax Event
Upon Merger occurs and the Burdened Party is the Affected Party,
the Affected Party will, as a condition to its right to designate
an Early Termination Date under Section 6(b)(iv), use all reasonable
efforts (which will not require such party to incur a loss,
excluding
immaterial, incidental expenses)
to
transfer within 20 days after it gives notice under Section
6(b)(i) all its rights and obligations under this
Agreement in respect of the Affected Transactions to
another of its Offices or Affiliates so that such Termination Event
ceases to exist.
If
the
Affected Party is not able to make such a transfer it will give notice
to the
other party to that effect within such
20 day period, whereupon the other party may effect such
a transfer within
30 days after the notice is given under Section
6(b)(i).
Any
such
transfer by a party under this Section 6(b)(ii) will be subject to
and
conditional upon the prior written consent of the other
party, which consent will not be withheld if such other party's
policies in effect at such time would permit it to enter into
transactions with the transferee on the
terms proposed.
(iii) Two
Affected Parties. If
an
Illegality under Section 5(b)(i)( 1) or
a Tax
Event occurs and there are two Affected Parties,
each party will use
all
reasonable efforts to reach agreement within 30 days
after notice thereof is given under Section 6(b)(i) on action to avoid
that Termination Event.
(iv) Right to
Terminate. If:—
(1) a
transfer under
Section 6(b)(ii) or an agreement
under
Section 6(b)(iii), as the case may
be, has not been effected with respect to all Affected
Transactions within 30 days after an
Affected Party gives notice under Section 6(b)(i); or
(2) an
Illegality under Section 5(b)(i)(2), a Credit Event Upon Merger
or an Additional Termination Event occurs,
or a Tax Event
Upon
Merger occurs and the Burdened Party is not
the Affected Party,
either
party in the case of an Illegality, the
Burdened Party in the
case of
a Tax Event Upon Merger, any Affected Party in the case
of a Tax Event or an Additional Termination Event
if there is more than one Affected Party, or the party
which is not the Affected Party in the case of a Credit Event
Upon Merger or an Additional Termination Event if there is only one
Affected Party may, by not more than 20 days notice
to
the
other party and provided that the relevant
Termination Event is then
8
continuing,
designate a day not earlier than the day such notice is effective as
an Early Termination Date in respect of all Affected
Transactions.
(c) Effect
of Designation.
(i) If
notice
designating an Early Termination Date is given under Section 6(a)
or (b), the Early Termination Date will occur on the date so
designated, whether or not the relevant Event of Default
or Termination Event is then continuing.
(ii) Upon
the
occurrence or effective designation of an Early
Termination Date, no further payments or deliveries
under Section 2(a)(i) or 2(e) in respect of the
Terminated Transactions will be required to
be made, but without prejudice to the
other
provisions of this Agreement. The amount, if any, payable in
respect of an Early Termination Date shall
be
determined pursuant to Section 6(e).
(d) Calculations.
(i) Statement.
On
or as
soon as reasonably practicable following the
occurrence of an Early Termination Date, each
party will make the calculations on its
part,
if any, contemplated by Section 6(e)
and will provide to the other party a statement (1) showing, in
reasonable detail, such calculations (including all relevant
quotations and specifying any amount
payable under Section 6(e)) and (2) giving
details of the
relevant account to which any
amount payable to it is to be paid. In the
absence of written confirmation from the
source of a quotation obtained in determining a Market
Quotation, the records of
the party obtaining such quotation will be conclusive evidence of
the existence and accuracy of such quotation.
(ii) Payment
Date. An
amount
calculated as being due in respect of any
Early Termination Date under Section 6(e) will
be payable on the day that notice of the amount payable
is effective (in the case of an Early Termination
Date which is designated or occurs as a result of
an Event of Default) and on the day
which is two Local Business Days after the day on
which
notice of the amount payable is effective (in the
case
of an Early Termination Date which
is
designated as a result of a Termination
Event). Such amount will be paid together with (to the extent
permitted under applicable law)
interest thereon (before as well
as
after judgment) in the Termination Currency, from (and including)
the relevant Early Termination Date to (but excluding) the date such
amount is paid, at the Applicable Rate. Such interest
will be calculated on the basis of daily
compounding and the actual
number of days elapsed.
(e) Payments
on Early Termination. If
an
Early Termination Date
occurs, the following provisions shall apply based
on the parties' election in the Schedule of a payment measure,
either “Market Quotation” or “Loss”, and a payment
method, either the “First Method” or the “Second Method”. If the
parties fail to designate a payment
measure or payment method in the Schedule, it will be
deemed
that “Market Quotation” or the “Second Method”,
as
the
case may be, shall apply. 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) Events
of Default. If
the
Early Termination Date results from an Event of Default:—
(1) First
Method and Market Quotation.
If
the
First Method and Market Quotation apply, the
Defaulting Party will
pay
to the Non-defaulting Party the excess, if a positive
number, of (A) the
sum of the Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and
the Termination Currency Equivalent of the Unpaid Amounts owing
to the Non-defaulting Party over (B) the Termination Currency
Equivalent of the Unpaid Amounts owing to the Defaulting
Party.
(2) First
Method and Loss. If
the
First Method and Loss apply, the Defaulting Party will pay
to the Non-defaulting Party, if a positive number, the
Non-defaulting Party's Loss in respect
of this Agreement.
(3) Second
Method and Market Quotation. If
the
Second Method and Market Quotation apply,
an amount will be payable equal to (A) the sum of the Settlement
Amount (determined by
the
9
Non-defaulting
Party) in
respect of the Terminated Transactions and the Termination Currency
Equivalent of the
Unpaid Amounts owing to the Non-defaulting Party less (B) the Termination
Currency Equivalent of the Unpaid Amounts owing to the Defaulting
Party. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting Party; if
it is a negative
number, the Non-defaulting
Party will pay the absolute value of that amount to the Defaulting
Party.
(4) Second
Method and Loss.
If
the
Second Method and Loss apply, an amount will be payable
equal to the Non-defaulting Party's Loss in respect of this
Agreement. If that amount is a
positive number, the
Defaulting Party will pay it to the Non-defaulting Party;
if
it is a negative number, the Non-defaulting
Party will pay the absolute value of that amount
to the Defaulting Party.
(ii) Termination
Events. If
the
Early Termination Date results from a Termination Event:—
(1) One
Affected Party.
If
there
is one Affected Party, the amount payable will be determined
in accordance with Section
6(e)(i)(3), if Market Quotation applies, or Section 6(e)(i)(4), if Loss
applies, except that,
in
either case, references to the Defaulting Party and
to the Non-defaulting Party will be deemed to be
references to the Affected Party and the party which is not the
Affected Party, respectively,
and, if Loss applies and fewer than all the Transactions are being
terminated, Loss shall be calculated in respect of all Terminated
Transactions.
(2) Two
Affected Parties. If
there
are two Affected Parties:—
(A) if
Market
Quotation applies, each party will determine
a Settlement Amount in respect of the Terminated
Transactions, and an amount will be payable equal to (I) the
sum of (a) one-half of the difference between the Settlement
Amount of the party with
the higher Settlement Amount (“X”) and the Settlement Amount of
the party with the lower Settlement Amount (“Y”) and
(b) the Termination Currency Equivalent of the Unpaid Amounts owing
to X less (II) the Termination Currency Equivalent of the Unpaid
Amounts owing to Y; and
(B) if
Loss
applies, each party will determine its
Loss
in respect of this Agreement (or,
if fewer than all the Transactions are being terminated, in
respect of all Terminated Transactions) and an
amount will be payable equal to one-half
of
the difference between the Loss of
the party with the higher Loss (“X”) and
the Loss
of the party with the lower Loss (“Y”).
If
the
amount payable is a positive number, Y will pay it to X; if it is
a negative number, X will pay the absolute value
of that amount to Y.
(iii) Adjustment
for Bankruptcy. In
circumstances where an Early Termination Date occurs
because “Automatic Early Termination” applies in respect of a party,
the amount determined under this Section 6(e) will be
subject to such adjustments as are appropriate and
permitted by law to reflect any payments or
deliveries made by one
party to
the other under this Agreement (and retained
by such other party) during the period from the relevant Early
Termination Date to the date for
payment determined under Section 6(d)(ii).
(iv) Pre-Estimate.
The
parties
agree that if Market Quotation
applies
an amount recoverable under this Section 6(e) is a
reasonable pre-estimate of loss and not a penalty. Such
amount is payable for the loss of bargain and the
loss of protection against future risks and
except as otherwise provided
in this Agreement neither party will be entitled to recover any
additional damages as a consequence
of such losses.
10
7. Transfer
Subject
to Section 6(b)(ii), neither this Agreement nor any interest or obligation
in
or under this Agreement
may be transferred (whether
by way of security or otherwise) by either party without
the prior written consent of the other party,
except that: —
(a) a
party
may make such a transfer of this Agreement pursuant to
a consolidation or amalgamation
with, or merger with or into, or transfer of all or substantially
all its assets to, another entity (but without
prejudice to any other right or remedy under this Agreement);
and
(b) a
party
may make such a transfer of all or any part of its interest in
any
amount payable to it from
a Defaulting Party under Section 6(e).
Any
purported transfer that is not in compliance with this Section will
be
void.
8. Contractual
Currency
(a) Payment
in the Contractual Currency. Each
payment under this Agreement will be made in the
relevant currency specified
in this Agreement for that payment (the “Contractual Currency”). To the extent
permitted by applicable law, any obligation to make payments under
this Agreement in the Contractual Currency will not be
discharged or satisfied by any tender in any currency other
than the Contractual Currency, except to the
extent such tender results in the actual receipt
by the
party to which payment is owed,
acting in a reasonable manner and
in
good faith in converting the currency
so
tendered into the Contractual Currency, of the full amount
in the Contractual Currency of all amounts
payable
in respect of this Agreement. If for any reason
the amount in the Contractual Currency so received falls short of
the amount in the Contractual Currency payable
in respect of this Agreement, the party required
to make
the payment will, to the extent permitted by
applicable law, immediately pay such additional amount
in the Contractual Currency as may be necessary
to
compensate for the shortfall. If for any reason
the
amount in the Contractual Currency so received exceeds
the amount
in
the Contractual Currency payable
in
respect of this Agreement, the party
receiving the payment will refund promptly the amount of such
excess.
(b) Judgments.
To
the
extent permitted by applicable law, if any judgment or
order expressed in a currency other than the
Contractual Currency is rendered (i) for the payment
of any
amount owing in respect
of this Agreement, (ii) for the payment of any amount
relating to any early termination in respect of this
Agreement or (iii) in respect
of a judgment or order of another court for the
payment
of any amount described in (i) or (ii) above, the
party seeking recovery, after recovery in full of the
aggregate amount to which such
party is entitled pursuant to the judgment or order, will be
entitled to receive immediately from the other
party the amount of any shortfall of the Contractual Currency
received by such party as a consequence of
sums paid in such other currency and will refund promptly to the
other party any excess of the Contractual
Currency received by such party as a consequence of sums paid in such
other currency if such shortfall or such excess arises
or results from any variation between the rate of exchange
at which the Contractual Currency is converted into
the
currency of the judgment or order for
the
purposes of such judgment or order and the rate of
exchange at which such party is able, acting in a reasonable manner
and
in good faith in
converting the currency received
into the Contractual Currency, to purchase
the Contractual Currency with the amount of the
currency of the judgment or order actually received by such party.
The term “rate of exchange” includes, without
limitation, any premiums and costs
of
exchange payable in connection with the
purchase of or conversion into the Contractual
Currency.
(c) Separate
Indemnities. To
the
extent permitted by applicable law, these indemnities constitute
separate and independent obligations from the other obligations in
this Agreement, will be enforceable as
separate and independent causes of action, will apply notwithstanding
any indulgence granted by the party
to which any payment is owed and will not be affected by judgment
being obtained or claim or proof being made for any
other sums payable in respect of this Agreement.
(d) Evidence
of Loss. For
the
purpose of this Section 8, it will be sufficient for
a party to demonstrate that it would have suffered
a loss had an actual exchange or purchase been made.
11
9. Miscellaneous
(a) Entire
Agreement. This
Agreement constitutes the entire agreement and understanding of the parties
with respect to its subject matter and supersedes all oral
communication and prior writings with respect
thereto.
(b) Amendments.
No
amendment, modification or waiver in respect of this
Agreement will be effective unless in writing
(including a writing evidenced by a facsimile transmission) and executed
by each of the parties or confirmed by an exchange of
telexes or electronic messages on an electronic messaging system.
(c) Survival
of Obligations. Without
prejudice to Sections 2(a)(iii) and 6(c)(ii),
the obligations of the parties under this Agreement
will survive the termination of any Transaction.
(d) Remedies
Cumulative. Except
as
provided in this Agreement, the rights, powers, remedies and
privileges provided in this Agreement are cumulative and not exclusive
of any rights, powers, remedies and privileges provided by
law.
(e) Counterparts
and Confirmations.
(i) This
Agreement (and each amendment, modification and waiver in respect
of it) may be executed and delivered in counterparts
(including by facsimile transmission), each of which will be
deemed an original.
(ii) The
parties intend that they are legally
bound by the terms of each Transaction
from the moment they agree to those terms
(whether orally or otherwise).
A
Confirmation shall be entered into as
soon as practicable and may be executed and delivered in
counterparts (including by facsimile
transmission) or be created by an exchange of telexes or by an
exchange of electronic messages on an electronic messaging system,
which
in
each
case will be sufficient
for all
purposes to evidence a binding supplement to this Agreement.
The parties will specify therein or through another effective
means that any such counterpart, telex or electronic message
constitutes a
Confirmation.
(f) No
Waiver of Rights.
A
failure
or delay in exercising any right,
power
or privilege in respect of this
Agreement will not
be
presumed to operate
as a
waiver, and a single or partial exercise of any right, power
or privilege will not be presumed to preclude any subsequent or
further exercise, of that right, power or privilege or the
exercise of any other right, power or privilege.
(g) Headings.
The
headings used in this Agreement are for convenience of reference
only and are not to affect the construction of or
to be taken into consideration in interpreting this Agreement.
10. Offices;
Multibranch Parties
(a) If
Section 10(a) is specified in the Schedule as applying, each party
that
enters into a Transaction through an Office other than
its head or home office represents to the other party
that, notwithstanding the place of booking office or
jurisdiction
of incorporation or organisation
of such
party, the obligations of such party are the same
as if it had entered into the Transaction through its head
or home
office. This representation
will be deemed to be repeated by such party on each date on which
a Transaction is entered
into.
(b) Neither
party may change the Office through which it makes and
receives payments or deliveries for the purpose of
a Transaction without the prior written consent of the other party.
(c) If
a
party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or
deliveries under
any
Transaction through any Office listed
in
the Schedule, and the Office through which it
makes and receives payments or deliveries with respect to
a Transaction will be specified in the relevant
Confirmation.
11. Expenses
A
Defaulting Party will, on demand, indemnify and hold harmless the other
party
for and against all reasonable out-of-pocket expenses,
including legal fees and Stamp Tax, incurred by
such other party by reason of the enforcement
and protection of its rights under this Agreement or
any
Credit Support Document
12
to which the Defaulting
Party is a party or by reason of the early
termination of any Transaction, including,
but not limited to, costs of collection.
12. Notices
(a) Effectiveness. Any
notice or other
communication in respect of this Agreement
may
be given in any manner set forth below
(except that a notice or other communication
under
Section 5 or 6 may not be given
by facsimile transmission or electronic messaging system) to the
address or number or in accordance with
the electronic messaging system details provided (see the
Schedule) and will be deemed effective as
indicated:—
(i) if
in
writing and delivered in person or by courier, on the date it is
delivered;
(ii) if
sent
by telex, on the date the recipient's answerback is received;
(iii) if
sent
by facsimile transmission, on the date that transmission is
received by a responsible employee of the recipient in
legible form (it being agreed that the burden of
proving receipt will be on the sender and will not
be met by a transmission report generated by the sender's facsimile
machine);
(iv) if
sent
by certified or registered mail (airmail, if overseas) or
the equivalent (return receipt
requested), on the date that mail is delivered or its delivery is
attempted; or
(v) if
sent
by electronic messaging system, on the date that electronic message
is
received,
unless
the
date
of that delivery (or attempted delivery) or that receipt,
as
applicable, is not a Local Business
Day or that communication
is delivered (or attempted)
or
received, as applicable, after the close of business
on a Local Business Day,
in
which case that communication
shall be
deemed given and effective on the first
following day that is a Local Business Day.
(b) Change
of Addresses.
Either
party may by notice to the other change the
address, telex or facsimile
number or electronic messaging
system details at which notices
or other
communications are to be given to
it.
13. Governing
Law and Jurisdiction
(a) Governing
Law. This
Agreement will be governed by and construed
in accordance with the law
specified in the Schedule.
(b) Jurisdiction.
With
respect to any suit, action or
proceedings relating to this Agreement
(“Proceedings”), each party irrevocably:—
(i) submits
to the jurisdiction
of the English courts, if this Agreement
is expressed to be governed
by English law, or to the non-exclusive jurisdiction of the
courts of the State of New York and the
United States District Court located in the Borough of Manhattan in
New York City, if this
Agreement is expressed to be governed by the laws of the State of
New York; and
(ii) waives
any objection which it may have at any time to the laying
of venue of any Proceedings
brought in any such court, waives any claim that such Proceedings
have been brought in an
inconvenient forum and further waives the right to object, with
respect to such Proceedings, that
such court does not have any jurisdiction over such
party.
Nothing
in this Agreement precludes either party from bringing Proceedings
in any other jurisdiction
(outside, if this Agreement is expressed to be governed by
English law, the Contracting States, as defined in Section 1(3) of
the Civil Jurisdiction and Judgments Xxx 0000 or
any modification, extension or
reenactment thereof for the time being in force) nor will the
bringing of Proceedings in any one or more
jurisdictions preclude the bringing of Proceedings in any other
jurisdiction.
(c) Service
of Process. Each
party
irrevocably appoints the Process Agent
(if any) specified opposite
its name in the Schedule
to receive, for it and on its behalf, service of process
in any
Proceedings. If for any
13
reason
any party's Process Agent is unable to act as such, such party will
promptly
notify the other party and within 30 days appoint
a substitute process agent acceptable to the other
party. The parties irrevocably
consent to service of process given in the manner provided for
notices in Section 12. Nothing in this
Agreement will affect the right of either party to serve process
in any other manner permitted by law.
(d) Waiver
of Immunities. Each
party irrevocably waives, to the fullest
extent permitted by applicable
law, with respect to itself
and its
revenues and assets (irrespective of their use or
intended
use), all immunity on the grounds of sovereignty
or other similar grounds from
(i)
suit, (ii) jurisdiction of any court, (iii) relief
by way of injunction, order
for
specific performance or for recovery of property,
(iv)
attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment
to which it or its revenues or assets might
otherwise be entitled in any Proceedings in the courts of
any jurisdiction and irrevocably agrees, to the extent
permitted
by applicable law, that it will
not
claim any such immunity in any Proceedings.
14. Definitions
As
used
in this Agreement:—
“Additional
Termination Event” has
the
meaning specified in Section 5(b).
“Affected
Party” has
the
meaning specified in Section 5(b).
“Affected
Transactions” means
(a)
with respect to any Termination Event
consisting of an Illegality, Tax
Event or Tax Event Upon Merger, all Transactions affected by
the occurrence of such Termination Event
and (b) with respect to any other Termination Event, all
Transactions.
“Affiliate”
means,
subject to the Schedule, in relation to any person, any
entity controlled, directly or
indirectly, by the person, any entity that controls, directly or
indirectly, the person or any entity directly or indirectly under common
control with the person. For this
purpose,
“control” of any entity or person means
ownership of a majority of the voting power of the entity or
person.
“Applicable
Rate” means:—
(a) in
respect of obligations payable or deliverable (or which would have
been
but for Section 2(a)(iii))
by a Defaulting Party, the Default Rate;
(b) in
respect of an obligation
to pay an amount under Section 6(e) of
either
party from and after the date
(determined in accordance with Section 6(d)(ii)) on which that
amount is payable, the Default Rate;
(c) in
respect of
all
other obligations payable or deliverable
(or
which would have been but for
Section 2(a)(iii)) by a Non-defaulting Party, the
Non-default Rate; and
(d) in
all
other cases, the Termination Rate.
“Burdened
Party” has
the
meaning specified in Section 5(b).
“Change
in Tax Law” means
the
enactment,
promulgation, execution or ratification of,
or any change in or amendment to, any law
(or
in the
application or official interpretation
of any
law) that occurs on or after the
date on which the relevant Transaction is entered
into.
“consent”
includes
a consent, approval, action, authorisation, exemption,
notice, filing, registration or
exchange control consent.
“Credit
Event Upon Merger” has
the
meaning specified in Section 5(b).
“Credit
Support Document” means
any
agreement or instrument that is specified as such
in this
Agreement.
“Credit
Support Provider” has
the
meaning specified in the Schedule.
“Default
Rate” means
a
rate per annum equal to the cost (without proof or evidence of
any actual cost) to the relevant payee (as
certified by it) if it were to fund or of funding the relevant amount
plus 1%
per
annum.
14
“Defaulting
Party” has
the
meaning specified in Section 6(a).
“Early
Termination Date” means
the
date determined in accordance with Section 6(a) or 6(b)(iv).
“Event
of Default” has
the
meaning specified in Section 5(a) and,
if
applicable, in the Schedule.
“Illegality”
has
the
meaning specified in Section 5(b).
“Indemnifiable
Tax” means
any
Tax other than a Tax that would not be imposed
in respect of a payment
under this Agreement but for a present or former connection
between the jurisdiction of the government or
taxation authority imposing
such Tax and the recipient of such payment or a person
related to such recipient
(including, without limitation, a connection arising from such
recipient or related person being or having
been a citizen or resident of such jurisdiction, or being or
having been organised, present or engaged in a
trade or business in such jurisdiction, or having or having had a
permanent establishment or fixed place of
business in such jurisdiction,
but excluding a connection arising solely from such
recipient or related person having executed, delivered,
performed its obligations or received a payment
under, or enforced, this Agreement or a Credit
Support Document).
“law” includes
any treaty, law, rule
or
regulation (as modified, in the case of tax matters,
by the practice of
any relevant governmental revenue authority) and
“lawful”
and
“unlawful”
will
be
construed
accordingly.
“Local
Business Day” means,
subject to the Schedule, a day on which commercial
banks are open for business (including dealings in
foreign exchange and foreign currency deposits) (a)
in relation to any
obligation under Section 2(a)(i), in
the
place(s) specified in the relevant Confirmation
or,
if not so specified,
as otherwise agreed by
the
parties in writing or determined pursuant
to
provisions contained, or incorporated
by reference, in this Agreement, (b) in relation
to any other payment, in the place where the relevant account
is located and, if different, in the principal financial
centre, if any, of the currency of such payment, (c) in
relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the
city specified in the address for notice provided by the
recipient and, in the case of a notice contemplated
by Section 2(b), in the place where the relevant
new account is to
be
located and (d) in relation to
Section 5(a)(v)(2), in the
relevant locations for performance with respect to such Specified
Transaction.
“Loss”
means,
with respect to this Agreement or one or more Terminated Transactions,
as the
case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines
in good faith to be its total losses and
costs (or
gain,
in which case expressed
as a
negative number) in connection with this Agreement
or that Terminated Transaction
or group of Terminated Transactions, as the case may
be, including any loss of
bargain, cost of funding or, at the election of such party
but without duplication, loss or cost incurred as a result
of its terminating, liquidating, obtaining or reestablishing any
hedge or related trading position (or any gain
resulting from any of them). Loss includes losses and
costs
(or
gains) in respect of any payment or delivery
required to have been made
(assuming satisfaction of each applicable
condition precedent) on or before the relevant Early Termination Date
and not made, except, so as to avoid duplication, if
Section 6(e)(i)(1) or (3) or
6(e)(ii)(2)(A) applies. Loss
does
not include a party's legal fees and out-of-pocket expenses referred to under
Section
11. A party will determine its Loss as of the relevant Early
Termination Date, or, if that is not reasonably
practicable, as of the earliest date thereafter as is reasonably
practicable. A party may (but need not) determine
its Loss by reference to
quotations of relevant rates or prices from
one or
more leading dealers in the relevant markets.
“Market
Quotation” means,
with respect to one or more Terminated Transactions and
a party making the
determination, an amount determined on the basis of quotations
from Reference Market-makers. Each
quotation will be for an amount, if any, that would be paid to
such party (expressed as a negative number)
or by such party (expressed
as a positive number) in consideration of an
agreement between such party (taking
into account any existing Credit Support Document with respect to
the obligations of such party) and the
quoting 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 Transaction or group
of Terminated Transactions that
would, but for the occurrence of the relevant
Early
Termination Date, have
15
been
required after that date. For
this
purpose, Unpaid Amounts in respect of the Terminated Transaction or
group of Terminated 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. The Replacement
Transaction would be subject
to such documentation as such party and the Reference Market-maker may, in
good faith, agree. The
party
making the determination (or its
agent) will request each Reference
Market maker to provide its quotation to the extent
reasonably practicable as of the same day and time
(without regard to different time zones) on or as soon as
reasonably practicable after the relevant Early
Termination Date. The day and
time
as of which those quotations are to be obtained
will be selected in good faith by the party
obliged to
make a
determination under Section 6(e), and,
if each
party is so obliged, after
consultation with the other. If more than three quotations are
provided, the Market Quotation will be the
arithmetic mean of the quotations, without
regard to the quotations having the highest
and lowest values. If
exactly three such quotations are provided, the Market Quotation
will be the quotation remaining after
disregarding the highest and lowest quotations. For this purpose,
if more than one quotation has the same
highest value or lowest
value, then one of such quotations shall be disregarded.
If
fewer than three quotations are provided, it will
be deemed that the Market Quotation in respect
of such
Terminated Transaction or group
of Terminated Transactions cannot be determined.
“Non-default
Rate” means
a
rate
per
annum equal to the cost (without proof or evidence of any actual cost)
to the Non-defaulting Party (as certified by it) if it were to
fund the relevant amount.
“Non-defaulting
Party” has
the
meaning specified in Section 6(a).
“Office”
means
a
branch or office of a party, which may be such party's head or home
office.
“Potential
Event of Default” means
any
event
which, with the giving of notice or
the
lapse of time or both, would constitute an Event
of Default.
“Reference
Market-makers” means
four leading dealers in the relevant
market selected by the party determining a Market
Quotation in good faith (a) from among dealers of the
highest credit standing which
satisfy all the criteria that such party applies generally at the
time in deciding whether to offer or to make
an extension of credit and
(b)
to the extent practicable, from among such dealers
having
an office in the same city.
“Relevant
Jurisdiction” means,
with respect to a party, the jurisdictions (a) in
which the party is incorporated, organised, managed
and controlled or considered to have
its
seat, (b) where an Office through
which the party is acting for purposes of this Agreement is
located, (c) in which the party executes this
Agreement and (d) in relation to any payment, from or through
which such payment is
made.
“Scheduled
Payment Date” means
a
date on which a payment or delivery is to be
made under Section 2(a)(i)
with respect to a Transaction.
“Set-off”
means
set-off, offset, combination of accounts, right of retention or
withholding or similar right
or requirement to which
the payer of an amount
under Section 6 is entitled
or
subject (whether arising under
this Agreement, another contract, applicable law or otherwise)
that is exercised by, or imposed on, such
payer.
“Settlement
Amount” means,
with respect to a party and any Early Termination Date, the sum
of:—
(a) the
Termination Currency
Equivalent of the Market Quotations (whether
positive or negative) for each
Terminated Transaction or group
of Terminated Transactions for which
a
Market Quotation is determined;
and
(b) such
party's Loss (whether positive or negative and without reference
to any Unpaid Amounts) for
each Terminated Transaction or
group of Terminated Transactions for which a Market Quotation cannot be
determined or would not (in the reasonable belief of the party
making the determination) produce a
commercially reasonable result.
“Specified
Entity” has
the
meaning specified in the Schedule.
16
“Specified
Indebtedness” means,
subject to the Schedule, any obligation
(whether present or future,
contingent or otherwise, as principal or surety or otherwise) in
respect of borrowed money.
“Specified
Transaction” means,
subject
to the Schedule, (a) any transaction (including
an agreement with respect
thereto) now existing or hereafter
entered into between one party to this
Agreement (or any Credit Support Provider of such party or any
applicable Specified Entity of such party) and the other
party to this Agreement (or
any Credit Support Provider of
such
other party or
any
applicable Specified Entity of such other party) which is
a rate swap transaction, basis swap, forward rate transaction,
commodity swap, commodity option, equity or
equity index swap, equity or equity index option, bond
option, interest rate option, foreign exchange transaction,
cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction
(including any option with respect to any of these
transactions), (b) any combination of these transactions and
(c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant
confirmation.
“Stamp
Tax” means
any
stamp, registration, documentation or similar tax.
“Tax”
means
any
present
or future tax, levy, impost, duty, charge,
assessment or fee of any nature (including
interest, penalties and additions thereto) that is imposed by any
government or other taxing authority in
respect of any payment under this Agreement other
than a stamp, registration, documentation
or
similar tax.
“Tax
Event” has
the
meaning specified in Section 5(b).
“Tax
Event Upon Merger” has
the
meaning specified in Section 5(b).
“Terminated
Transactions” means
with respect to any Early Termination Date
(a) if resulting from a Termination Event, all Affected Transactions
and (b) if resulting from
an
Event of Default, all Transactions
(in either case) in effect immediately
before the effectiveness of the notice designating that Early Termination
Date (or, if “Automatic Early Termination” applies,
immediately before that Early Termination Date).
“Termination
Currency” has
the
meaning specified in the Schedule.
“Termination
Currency Equivalent” means,
in
respect of any amount denominated in the Termination
Currency, such Termination Currency
amount and, in respect of any amount denominated in a currency other
than the Termination Currency
(the “Other Currency”), the amount in
the Termination Currency determined
by the party making the relevant determination as being
required to purchase such amount of such Other
Currency as at the relevant Early
Termination Date, or, if the relevant Market Quotation or Loss (as the case
may be), is determined as of a
later
date, that later date, with the
Termination Currency at the rate equal to
the spot exchange rate of the foreign exchange agent
(selected as provided below) for the purchase of such
Other Currency with the Termination Currency at or about 11:00 a.m.
(in the city in which such foreign
exchange agent is located) on such date as would be customary for
the determination of such a rate for the
purchase of such Other Currency for value on the
relevant Early Termination Date or that later date. The
foreign exchange agent will, if only one party is obliged to make
a determination under Section 6(e), be
selected in good faith by that party and otherwise will
be agreed by the parties.
“Termination
Event” means
an
Illegality, a Tax Event or a Tax Event Upon Merger or,
if specified to be applicable, a Credit Event Upon
Merger or an Additional Termination Event.
“Termination
Rate” means
a
rate per annum equal to the arithmetic mean of the cost (without
proof or evidence of any actual cost) to each party (as
certified by such party) if it were to
fund or of funding such amounts.
“Unpaid
Amounts” owing
to
any
party
means, with respect to an Early Termination
Date, the aggregate of
(a) in respect of all Terminated
Transactions, the amounts
that
became payable (or that would have become
payable but for Section 2(a)(iii)) to such party under Section
2(a)(i) on or prior to such Early Termination
Date and which remain unpaid as at such Early Termination
Date and (b) in respect of each Terminated Transaction, for each obligation
under Section 2(a)(i) which was (or would have been but for
Section 2(a) (iii)) required
to be settled by delivery to such party on or prior to such Early Termination Date
and which has not been so settled as at such Early
Termination Date, an amount equal to the fair market
17
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.
THE
ROYAL BANK OF SCOTLAND PLC
By:
Greenwich Capital Markets, Inc., its agent
|
XXXXX
FARGO BANK, N.A., solely in its capacity as Yield Maintenance
Administrator on behalf of the Yield Maintenance Trust with
respect to
HarborView Mortgage Loan Trust Mortgage Loan Pass-Through
Certificates,
Series 2007-3
|
By:
/s/ Xxxxx X.
Xxxxxx
Name: Xxxxx
X. Xxxxxx
Title: Managing
Director
Date: April
27, 2007
|
By:
/s/ Xxxxxx X.
Xxxxxxx
Name: Xxxxxx
X. Xxxxxxx
Title: Vice
President
Date: April
27, 2007
|
18
SCHEDULE
TO
THE
DATED
AS OF
April
27, 2007
between
THE
ROYAL BANK OF SCOTLAND PLC
Established
as a bank under the laws of Scotland
(“Party
A”)
and
XXXXX
FARGO BANK, N.A., solely in its capacity as administrator (the “Yield
Maintenance Administrator”) on behalf of the Yield Maintenance Trust (the “Yield
Maintenance Trust”) with respect to HarborView Mortgage Loan Trust Mortgage Loan
Pass-Through Certificates, Series 2007-3, a New York common law trust (the
“Trust”)
(“Party
B”)
Part
1 Termination
Provisions.
(a)
|
“Specified
Entity”
means (i) in relation to Party A for all purposes of the Agreement:
None;
|
and
(ii)
in relation to Party B for all purposes of the Agreement: None.
(b)
|
The
“Breach
of Agreement”
provisions of Section 5(a)(ii) of the Agreement will be inapplicable
to
Party B.
|
(c)
|
The
“Credit
Support Default”
provisions of Section 5(a)(iii) of the Agreement will apply to
Party A and
only Section 5(a)(iii)(1) will be applicable to Party B solely
with
respect to return of excess collateral to Party A under Paragraph
3(b) of
the Credit Support Annex to this Agreement. 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
the
Credit Support Annex to this Agreement shall not be an Event of
Default
unless (A) a Second Rating Trigger Event with respect to Xxxxx’x has
occurred and at least 30 Local Business Days have elapsed since
the Second
Rating Trigger Event has occurred and (B) such failure is not remedied
on
or before the third Local Business Day after notice of such failure
is
given to Party A.
|
(d)
|
The
“Misrepresentation”
provisions of Section 5(a)(iv) of the Agreement will be inapplicable
to
Party B.
|
(e)
|
The
“Default
Under Specified Transaction”
provisions of Section 5(a)(v) of the Agreement will be inapplicable
to
Party A and Party B.
|
(f)
|
The
“Cross
Default”
provisions of Section 5(a)(vi) of the Agreement will apply to Party
A with
a Threshold Amount of 3% of the shareholder’s equity of Party A.
|
The
“Cross
Default”
provisions of Section 5(a)(vi) of the Agreement will be inapplicable to Party
B.
(g)
|
The
“Bankruptcy”
provision of Section 5(a)(vii) of the Agreement will be applicable
to
Party A and to Party B, subject to the following modifications
with
respect to Party B:
|
(i) |
Section
5(a)(vii)(2), (7) and (9) shall not
apply;
|
(ii) |
Section
5(a)(vii)(4) shall not apply to the extent that it refers to proceedings
or petitions instituted or presented by Party A or its affiliates;
|
(iii) |
The
phrase “seeks or” in Section 5(a)(vii)(6) shall be deemed deleted;
and
|
(iv) |
Section
5(a)(vii)(8) shall apply only to the extent that a relevant event
has an
effect that is analogous to an effect described in Section 5(a)(vii)(1)
through (7) (as amended in this Part 1(g)) that applies to Party
B.
|
(h)
|
The
“Tax
Event upon Merger”
provisions of Section 5(b)(iii) shall not apply to the extent that
Party A
is both the Burdened Party and the Affected
Party.
|
(i)
|
The
“Credit
Event Upon Merger”
provisions of Section 5(b)(iv) of the Agreement will be inapplicable
to
Party A and Party B.
|
(j)
|
The
“Automatic
Early Termination”
provision of Section 6(a) of the Agreement will be inapplicable
to Party A
and Party B.
|
(k)
|
Payments
on Early Termination.
|
(i)
|
For
the purpose of Section 6(e) of the
Agreement:
|
(A)
|
Market
Quotation will apply; and
|
(B)
|
The
Second Method will apply.
|
(ii)
|
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 (A) to (G) below shall
apply:
|
(A)
|
The
definition of “Market Quotation” shall be deleted in its entirety and
replaced with the following:
|
““Market
Quotation”
means,
with respect to one or more Terminated Transactions, an offer which, when
made,
is capable of becoming legally binding upon acceptance (any such offer, 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 commercial terms substantially the same as those
of
this Agreement (save for the exclusion of provisions relating to Transactions
that are not Terminated Transactions).”
Page
2 of
17
(B)
|
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:
(1)
If a
Market Quotation for the relevant Terminated Transaction or group of Terminated
Transactions is selected by Party A and accepted by Party B so as to become
legally binding on or before 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, which in any event will not be
later
than the Early Termination Date) (such day, the “Latest
Settlement Amount Determination Day”),
the
Termination Currency Equivalent of the amount (whether positive or negative)
of
such Market Quotation;
(2)
If,
on 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 of such Market
Quotations shall be the lowest Market Quotation of such Market Quotations
expressed as a positive number or, if any of such Market Quotations is expressed
as a negative number, the Market Quotation expressed as a negative number
with
the largest absolute value); or
(3)
If no
Market Quotation for the relevant Terminated Transaction or group of Terminated
Transactions has been selected by Party A and accepted by Party B so as to
become legally binding on or before the Latest Settlement Amount Determination
Day, 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.”
(C)
|
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).
|
(D)
|
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 (for the avoidance of doubt, the
lowest
of such Market Quotations shall be the lowest Market Quotation
of such
Market Quotations expressed as a positive number or, if any of
such Market
Quotations is expressed as a negative number, the Market Quotation
expressed as a negative number with the largest absolute
value).
|
Page
3 of
17
(E)
|
Party
B undertakes to use its reasonable efforts to obtain at least one
Market
Quotation before the Latest Settlement Amount Determination Day.
Party B
will be deemed to have discharged its obligations under the preceding
sentence if it requests Party A to obtain Market Quotations, where
such
request is made in writing within two Local Business Days after
the day on
which the Early Termination Date is designated. 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.
|
(F)
|
Any
amount calculated as being due in respect of an Early Termination
Date
will be payable in accordance with Section 6(d)(ii), provided
that if such payment is owed to Party B, it will be payable on
the day
that notice of the amount payable is given to Party
A.
|
(G)
|
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).
(l)
|
“Termination
Currency”
means United States Dollars.
|
(m)
|
Additional
Termination Events. Each
of the following shall be an Additional Termination Event:
|
(i) |
First
Rating Trigger Event. A
First Rating Trigger Event (as defined in Part 5(i)) has occurred,
and
Party A has not, within the period of time prescribed, complied
with Part
5(i)(ii) below. For purposes of this Additional Termination Event,
Party A
shall be the sole Affected Party.
|
(ii) |
S&P
Second Rating Trigger Event.
A
Second Rating Trigger Event (as defined in Part 5(i)) with respect
to
S&P has occurred, and Party A has not, within 10 Business Days after
such event, complied with the requirements of Part 5(i)(iii) below.
For
purposes of this Additional Termination Event, Party A shall be
the sole
Affected Party.
|
(iii) |
Xxxxx’x
Second Rating Trigger Event.
(A) A Second Rating Trigger Event with respect to Xxxxx’x has occurred,
and 30 or more Local Business Days have elapsed and (B) (i) at
least one
Eligible Replacement (as defined in Part 5(g)) has made a Firm
Offer to be
the transferee of a transfer to be made in accordance with Part
5(g)(iii)
below and/or (ii) at least one entity with the Acceptable Ratings
(as
defined in Part 5(g)) has made a Firm Offer to provide an Eligible
Guarantee in respect of all of Party A’s present and future obligations
under this Agreement. For purposes of this Additional Termination
Event,
Party A shall be the sole Affected Party.
|
Page
4 of
17
(iv) |
[Reserved].
|
(v) |
Modification
of Pooling and Servicing Agreement.
The Pooling and Servicing Agreement is modified without the prior
written
consent of Party A, where such consent is required under the terms
of the
Pooling and Servicing Agreement, where such modification has a
material
adverse effect on Party A’s rights under this Agreement or the Pooling and
Servicing Agreement. For purposes of this Additional Termination
Event,
Party B shall be the sole Affected
Party.
|
(vi) |
Exercise
of Purchase Option.
The Yield Maintenance Administrator notifies the Holders of the
Certificates of the Terminator’s intent to exercise its option to purchase
the Mortgage Loans pursuant to the Pooling and Servicing Agreement,
provided that the Early Termination Date may not be earlier than
the date
on which the Certificates will be retired pursuant to the Pooling
and
Servicing Agreement. For purposes of this Additional Termination
Event,
Party B shall be the sole Affected
Party.
|
(vii) |
Regulation
AB.
(A) The Depositor still has a reporting obligation with respect
to this
Transaction pursuant to Regulation AB and (B) Party A has not,
within 30
days after receipt of a Hedge Disclosure Request complied with
the
provisions set forth in Part 5(k)(iv) below (provided that if the
significance percentage reaches 10% or 20%, as applicable, after
a Hedge
Disclosure Request has been made to Party A, Party A must comply
with the
provisions set forth in Part 5(k)(iv) below within 10 days of Party
A
being informed of the significance percentage reaching 10% or 20%,
as
applicable) or has not, thereafter, complied with the provisions
set forth
in Part 5(k)(v) below. For purposes of this Additional Termination
Event,
Party A shall be the sole Affected
Party.
|
Part
2 Tax
Representations.
(a)
|
Payer
Representations For
the purpose of Section 3(e) of the Agreement, Party A will make
the
following representation and Party B will not make the following
representation:
|
It
is not
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax from any payment (other
than interest under Section 2(e), 6(d)(ii) or 6(e) of the Agreement) to be
made
by it to the other party under this Agreement. In making this representation,
it
may rely on (i) the accuracy of any representations made by the other party
pursuant to Section 3(f) of the Agreement, (ii) the satisfaction of the
agreement contained in Section 4(a)(i) or 4(a)(iii) of the Agreement and
the
accuracy and effectiveness of any document provided by the other party pursuant
to Section 4(a)(i) or 4(a)(iii) of the Agreement and (iii) the satisfaction
of
the agreement of the other party contained in Section 4(d) of the Agreement,
provided
that it
shall not be a breach of this representation where reliance is placed on
clause
(ii) and the other party does not deliver a form or document under Section
4(a)(iii) of the Agreement by reason of material prejudice to its legal or
commercial position.
(b)
|
Payee
Representations.
For the purpose of Section 3(f) of the Agreement:
|
(i)
|
Party
A represents that:
|
(A)
|
Party
A is a tax resident of the United
Kingdom;
|
Page
5 of
17
(B)
|
Party
A is a "foreign person" within the meaning of the applicable U.S.
Treasury
Regulations concerning information reporting and backup withholding
tax
(as in effect on January 1, 2001), unless Party A provides written
notice
to Party B that it is no longer a foreign person;
|
(C)
|
in
respect of each Transaction Party A enters into through an office
or
discretionary agent in the United States or which otherwise is
allocated
(in whole or part) for United States federal income tax purposes
to such
United States trade or business, each payment received or to be
received
by Party A under such Transaction (or portion thereof, if applicable)
will
be effectively connected with its conduct of a trade or business
in the
United States; and
|
(D)
|
in
respect of all other Transactions or portions thereof, no such
payment
received or to be received by Party A in connection with this Agreement
is
attributable to a trade or business carried on by it through a
permanent
establishment in the United States.
|
(ii)
|
Party
B represents that:
|
(A)
|
it
is the Yield Maintenance Administrator for the Trust;
and
|
(B)
|
it
is a national banking association and not a foreign corporation
for United
States tax purposes; and
|
(c)
|
Definition
of “Indemnifiable Tax”. Notwithstanding
the definition of “Indemnifiable Tax” in Section 14 of the Agreement, in
relation to payments by Party A, any Tax shall be an Indemnifiable
Tax
and, in relation to payments by Party B, no Tax shall be an Indemnifiable
Tax.
|
(d)
|
No
gross-up by Party B.
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.
|
Part
3 Agreement
to Deliver Documents.
For
the purpose of Sections 4(a)(i) and (ii) of the Agreement, Party A and Party
B
agree to deliver the following documents, as applicable:
(a) |
Taxforms,
documents or certificates to be delivered
are:
|
Party
Required to Deliver Document
|
Form/Document/Certificate
|
Date
by Which to be Delivered
|
|
Party
A
|
Any
form or document required or reasonably requested to allow the
other party
to make payments under the Agreement without any deduction or withholding
for or on account of any Tax, or with such deduction or withholding
at a
reduced rate.
|
Upon
reasonable request.
|
|
Party
B
|
Any
form or document required or reasonably requested to allow the
other party
to make payments under the Agreement without any deduction or withholding
for or on account of any Tax, or with such deduction or withholding
at a
reduced rate.
|
(i)
Concurrently with the execution and delivery of this Confirmation,
and
(ii) anytime when the document last delivered is incorrect or
out-of-date.
|
Page
6 of
17
(b) |
Other
documents to be delivered and covered by the Section 3(d) representation
are:
|
Party
required to deliver
|
Form/Document/or
Certificate
|
Date
by which to be delivered
|
Covered
by Section 3(d) representation
|
||
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 the
Confirmation which sets forth the specimen signatures of each signatory
to
the Confirmation 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
B
|
The
Pooling and Servicing Agreement.
|
Concurrently
with the execution and delivery of this Agreement.
|
No
|
||
Party
A and Party B
|
Legal
opinion(s) with respect to such party relating to the enforceability
of
the party’s obligations under this Agreement.
|
Concurrently
with the execution and delivery of this Agreement.
|
No
|
Part
4 Miscellaneous.
(a) |
Addresses
for Notices. For
the purposes of Section 12(a) of the
Agreement:
|
(i)
Notices or communications shall, with respect to a particular Transaction,
be
sent to the address, telex number or facsimile number reflected in the
Confirmation of that Transaction. In addition (or in the event the Confirmation
for a Transaction does not provide relevant Addresses/information for notice),
with respect to notices provided pursuant to Section 5 and 6 of this Agreement,
notice shall be provided to:
Address
for notices or communications to Party A:-
x/x
XXX
Xxxxxxxxx Xxxxxxx, Xxxxx 0,
Page
7 of
17
000
Xxxxxxxxxxx, Xxxxxx, XX0X 0XX
Attention:
Swaps
Administration
Phone
No.: 020
7085
5000
Facsimile
No.: 020
7085
5050
With
a
copy to:
Greenwich
Capital Markets, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention:
Legal
Department - Derivatives Documentation
Phone
No.: 000-000-0000/32
Facsimile
No.: 000-000-0000/34
Notices
provided pursuant to Section 5 and 6 of this Agreement shall be provided
to:
Address:
c/o
RBS
Financial Markets
Xxxxx
0,
000 Xxxxxxxxxxx
Xxxxxx
XX0X 3UR
Attention:
Head
of
Legal, Financial Markets
Telephone: 00
000
000 0000
Facsimile: 44
207
085 8411
With
a
copy to:
Greenwich
Capital Markets, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
XX 00000
Attention:
Legal
Department - Derivatives Documentation
Phone
No.: 000-000-0000/32
Facsimile
No.: 000-000-0000/34
Address
for notices or communications to Party
B:-
|
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Client Manager - HVMLT 2007-3
Phone:
000-000-0000
Fax:
000-000-0000
(b) |
Notice
by Facsimile Transmission.
|
Section
12(a) of the Agreement is amended by adding in the third line thereof after
the
phrase “messaging system” and before the “)” the words “; provided,
however,
any
such notice or other communication may be given by facsimile transmission
(it
being agreed that the burden of proving receipt will be on the sender and
will
not be met by a transmission report generated by the sender’s facsimile
machine)”.
Section
12(a)(ii) of the Agreement is deleted in its entirety.
(c) |
Process
Agent. For
the purpose of Section 13(c) of the
Agreement:
|
Page
8 of
17
Party
A appoints
as its Process Agent: none
Party
B appoints as its Process Agent: none
(d) |
Offices.
With
respect to Party A, the provisions of Section 10(a) of the Agreement
will
apply.
|
(e) |
Multibranch
Party. For
the purpose of Section 10(c) of the
Agreement:
|
Party
A is a Multibranch Party
and may act through its London and New York Offices only.
Party
B is not a Multibranch Party.
(f) |
Calculation
Agent. The
Calculation Agent is Party A.
|
(g) |
Credit
Support Document. Details
of any Credit Support Document for Party A and Party B: With respect
to
Party A, the ISDA Credit Support Annex (New York law), dated as
of the
date hereof, between Party A and Party B, and such other collateralization
agreement or credit arrangement provided for under the terms of
any
Confirmation and Transaction evidenced thereby, together with any
document
or agreement that by its terms secures or otherwise supports the
parties’
obligations under a Transaction heretofore or hereafter entered
into
between the parties. With respect to Party B, such credit support
document
is solely in respect of Party B’s obligations under Paragraph 3(b) of the
Credit Support Annex.
|
(h) |
Credit
Support Provider.
|
Credit
Support Provider means in relation to Party A: Initially, none, provided
however
that a party providing an Eligible Guarantee, if any, shall be the Credit
Support Provider in relation to Party A.
Credit
Support Provider means in relation to Party B: none.
(i) |
(j) |
Netting
of Payments. Subparagraph
(ii) of Section 2(c) of the Agreement will apply to the Transaction
evidenced by the
Confirmation.
|
(k) |
Affiliates.
Party
B shall be deemed to not have any Affiliates for purposes of this
Transaction.
|
Part
5 Other
Provisions.
(a) |
Additional
Representation. Section
3(a) of the Agreement shall be amended to include the following
additional
representations after paragraph
3(a)(v):
|
(vi) Principal.
It is acting as principal and not as agent when entering into the
Transaction.
(vii) Non-Reliance.
With respect to Party A, it is acting for its own account and it has made
its
own independent decisions to enter into the Transaction and as to whether
the
Transaction is appropriate or proper for it based upon its own judgment and
upon
advice from such advisors as it has deemed necessary. With respect to Party
B,
it is acting as Yield Maintenance Administrator for the Trust, which is acting
for its own account and has made its own independent decisions to enter into
the
Transaction and as to whether the Transaction is appropriate or proper for
it
based upon its own judgment and upon advice from such advisors as it has
deemed
necessary. Neither Party is relying on any communication (written or oral)
of
the other party as investment advice or as a recommendation to enter into
the
Transaction; it being understood that information and explanations related
to
the terms and conditions of the Transaction shall not be considered investment
advice or a recommendation to enter into the 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 the
Transaction.
Page
9 of
17
(viii) 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 the Agreement and that Transaction. It is also capable
of assuming, and assumes, the financial and other risks of the Agreement
and
that Transaction.
(ix) Status
of Parties.
The other party is not acting as an agent, fiduciary or advisor for it in
respect of that Transaction.
(x)
Eligible
Contract Participant, etc.
It is an “eligible contract participant” as defined in Section 1a(12) of the
U.S. Commodity Exchange Act (7 U.S.C. 1a), as amended by the Commodity Futures
Modernization Act of 2000 and the Transaction evidenced hereby has been the
subject of individual negotiations and is intended to be exempt from, or
otherwise not subject to regulation thereunder.
(b) |
Waiver
of Right to Trial by Jury. Each
party hereby irrevocably waives any and all rights to trial by
jury in any
legal proceeding arising out of or relating to this Agreement or
any
Transaction hereunder.
|
(c) |
Absence
of Litigation.
In Section 3(c) of the Agreement the words “or any of its Affiliates”
shall be deleted.
|
(d) |
Fully-paid
Party Protected.
Notwithstanding the terms of Sections 5 and 6 of the Agreement,
if Party B
has satisfied its payment and delivery obligations under Section
2(a)(i)
of the Agreement, then unless Party A is required pursuant to appropriate
proceedings to return to Party B or otherwise returns to Party
B upon
demand of Party B any portion of such payment or delivery, (a)
the
occurrence of an event described in Section 5(a) (other than the
failure
by Party B under Section 5(a)(iii) to return excess collateral
to Party A
under Paragraph 3(b) of the Credit Support Annex) of the Agreement
with
respect to Party B shall not constitute an Event of Default or
Potential
Event of Default with respect to Party B as the Defaulting Party
and (b)
Party A shall be entitled to designate an Early Termination Date
pursuant
to Section 6 of the Agreement only as a result of (1) a Termination
Event
set forth in either Section 5(b)(i) or Section 5(b)(ii) of the
Agreement
with respect to Party A as the Affected Party, (2) a Termination
Event set
forth in Section 5(b)(iii) of the Agreement with respect to Party
A as the
Burdened Party or (3) an Event of Default set forth in Section
5(a)(iii)
with respect to Party B as the Defaulting Party where Party B failed
to
return excess collateral to Party A under Paragraph 3(b) of the
Credit
Support Annex . For purposes of the Transaction to which this Confirmation
relates, Party B’s only obligations are to pay the Fixed Amount on the
Fixed Rate Payer Payment Date under Section 2(a)(i) of the Agreement
and
to return excess collateral to Party A under Paragraph 3(b) of
the Credit
Support Annex .
|
(e) |
Limitation
of Liability.
|
Page
10 of
17
It
is expressly understood and agreed by the parties hereto that (a) this Agreement
is executed and delivered by Xxxxx Fargo Bank, N.A., solely in its capacity
as
the Yield Maintenance Administrator of the Trust, in the exercise of the
powers
and authority conferred upon and vested in it under the Pooling and Servicing
Agreement dated as of March 1, 2007, by and among Greenwich Capital Acceptance,
Inc. (the “Depositor”),
Greenwich Capital Financial Products, Inc., as seller, Xxxxx Fargo Bank,
N.A.,
as master servicer and securities administrator and Deutsche Bank National
Trust
Company, as trustee, (the “Pooling
and Servicing Agreement”)
and pursuant to instructions set forth therein, and that the Yield Maintenance
Administrator shall perform its duties and obligations hereunder in accordance
with the standard of care set forth in the Pooling and Servicing Agreement,
(b)
each of the representations, undertakings and agreements herein is made and
intended not as a personal representation, undertaking or agreement of the
Yield
Maintenance Administrator but is made and intended for the purpose of binding
only the Trust, and (c) under no circumstances shall the Yield Maintenance
Administrator 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 Trust herein;
provided that nothing in this paragraph shall relieve the Yield Maintenance
Administrator from performing its duties and obligations hereunder in accordance
with the standard of care set forth in the Pooling and Servicing
Agreement.
(f) |
Proceedings.
Party
A shall not institute against or cause any other person to institute
against, or join any other person in instituting against Party
B 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
(or, if
longer, the applicable preference period) following indefeasible
payment
in full of the Certificates, provided
that nothing herein shall preclude, or be deemed to estop Party
A from
taking any action in any case or proceeding voluntarily filed or
commenced
by or on behalf of Party B or in any involuntary case or proceeding
after
it has been commenced. This provision will survive the termination
of this
Agreement.
|
(g) |
Recording
of Conversations. Each
party (i) consents to the recording of the telephone conversations
of
trading and marketing personnel of the parties and (ii) agrees
to obtain
any necessary consent of, and give notice of such recording to,
such
personnel of it.
|
(h) |
No
Set-off. Notwithstanding
any provision of this Agreement or any other existing or future
agreement,
each party irrevocably waives any and all rights it may have to
set-off,
net recoup or otherwise withhold or suspend or condition payment
or
performance of any obligation between it and the other party hereunder
against any obligation between it and the other party under any
other
agreements. The provisions for Set-off set forth in Section 6(e)
of the
Agreement shall not apply for purposes of this
Transaction.
|
(i) |
Rating
Agency Downgrade.
|
(i)
|
For
purposes of this Part 5(i), the following definitions
apply:
|
An
entity
has “Acceptable
Ratings”
if (x)
its short-term unsecured and unsubordinated debt is rated at least “A-1” by
S&P (or, if Party A does not have a short-term unsecured and unsubordinated
debt rating from S&P, its long-term unsecured and unsubordinated debt is
rated at least “A+” by S&P), and (y) Party A’s long-term unsecured and
unsubordinated debt is rated at least “A3” and Party A’s short-term unsecured
and unsubordinated debt is rated at least “Prime-2” (or if Party A does not have
a short-term unsecured and unsubordinated debt rating from Moody’s, its
long-term unsecured and unsubordinated debt is rated at least
“A3”).
Page
11 of
17
“Eligible
Guarantee”
means an
unconditional and irrevocable guarantee that is provided by a guarantor with
Acceptable Ratings 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.
“Eligible
Replacement”
means an
entity (A) with the Acceptable Ratings or (B) whose present and future
obligations owing to Party B are guaranteed pursuant to an Eligible
Guarantee.
A
“First
Rating Trigger Event”
shall
occur with respect to Party A (or any applicable Credit Support Provider),
if
(x) its short-term unsecured and unsubordinated debt is rated below “A-1” by
S&P (or, if Party A does not have a short-term unsecured and unsubordinated
debt rating from S&P, its long-term unsecured and unsubordinated debt is
rated below “A+” by S&P), or (y)(a) its long-term unsecured and
unsubordinated debt ceases to be rated at least “A2” by Moody’s or its
short-term unsecured and unsubordinated debt cease to be rated at least
“Prime-1” by Moody’s, or (b) if Party A does not have a short-term unsecured and
unsubordinated debt rating from Moody’s, its long-term unsecured and
unsubordinated debt ceases to be rated at least “A1” by Moody’s.
“Rating
Agency Condition”
means,
with respect to any particular proposed act or omission to act hereunder,
that
the party acting or failing to act must consult with each of the Rating Agencies
then providing a rating of the Certificates and receive from each such Rating
Agency a prior written confirmation that the proposed action or inaction
would
not cause a downgrade or withdrawal of the then-current rating of the
Certificates.
A
“Second
Rating Trigger Event”
shall
occur with respect to Party A (or any applicable credit support provider),
if
(A) Party A’s long-term unsecured and unsubordinated debt ceases to be
rated at least “BBB-” by S&P or Party A’s short-term unsecured and
unsubordinated debt ceases to be rated at least “A-3” or is withdrawn by S&P
or (B) Party A’s long-term unsecured and unsubordinated debt ceases to be rated
at least “A3” or Party A’s short-term unsecured and unsubordinated debt ceases
to be rated at least “Prime-2” (or if Party A does not have a short-term
unsecured and unsubordinated debt rating from Moody’s, its long-term unsecured
and unsubordinated debt ceases to be rated at least “A3”).
(ii) |
If
a First Rating Trigger Event occurs with respect to Party A (or
any
applicable Credit Support Provider), then (unless, within 30 days
of such
First Rating Trigger Event, each of Standard and Poor’s, a Division of
XxXxxx-Xxxx Companies, Inc. (“S&P”)
and Xxxxx’x Investors Service, Inc. (“Moody’s”)
(each a “Rating
Agency”)
has reconfirmed its rating of the Certificates which was in effect
immediately prior to such First Rating Trigger Event) Party A shall,
within (30) days of such First Rating Trigger Event, at its own
expense,
(A) obtain an Eligible Guarantee in respect of all of Party A’s present
and future obligations under this Agreement, subject to the Rating
Agency
Condition with respect to S&P only, (B) transfer all or substantially
all of its rights and obligations with respect to this Agreement
to an
Eligible Replacement (provided that 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), subject to the Rating Agency
Condition
with respect to S&P only or (C) post collateral in accordance with the
Credit Support Annex to this
Agreement.
|
Page
12 of
17
(iii) |
If
a Second Rating Trigger Event occurs with respect to Party A (or
any
applicable Credit Support Provider), then, within 10 Business Days
of such
Second Rating Trigger Event with respect to S&P, Party A will at its
own cost use commercially reasonable efforts to, as soon as reasonably
practicable, either (A) obtain an Eligible Guarantee in respect
of all of
Party A’s present and future obligations under this Agreement, subject
to
the Rating Agency Condition with respect to S&P only, or (B)
transfer
all or substantially all of its rights and obligations with respect
to
this Agreement to an Eligible Replacement (provided that 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), subject to the
Rating Agency Condition with respect to S&P
only.
|
(j) Transfers.
(i) Section
7
is hereby amended to read in its entirety as follows:
“Subject
to Section 6(b)(ii), Part 5(i) and Part 5(k), neither Party A nor Party B
is
permitted to assign, novate or transfer (whether by way of security or
otherwise) as a whole or in part any of its rights, obligations or interests
under the Agreement or any Transaction without (a) the prior written consent
of
the other party and (b) satisfaction of the Rating Agency Condition with
respect
to S&P.”
(ii) If
an
Eligible Replacement has made a Firm Offer (which remains an offer that will
become legally binding upon acceptance by Party B) to be the transferee pursuant
to a Permitted Transfer, Party B shall, at Party A’s written request and at
Party A’s expense, take any reasonable steps required to be taken by Party B to
effect such transfer.
“Permitted
Transfer”
means
a
transfer by novation by Party A to a transferee (the “Transferee”) of all, but
not less than all, of Party A’s rights, liabilities, duties and obligations
under this Agreement, with respect to which transfer each of the following
conditions is satisfied: (a) the Transferee is an Eligible Replacement that
is a
recognized dealer in interest rate swaps and caps organized under the laws
of
the United States of America or a jurisdiction located in the United States
of
America (or another jurisdiction reasonably acceptable to Party B), (b) as
of
the date of such transfer neither Party B nor the Transferee would be required
to withhold or deduct on account of Tax from any payments under this Agreement
or would be required to gross up for such Tax under Section 2(d)(i)(4), (c)
an
Event of Default or Termination Event would not occur as a result of such
transfer, (d) Party B has consented in writing to the transfer, such consent
not
to be unreasonably withheld, (e) pursuant to a written instrument (the “Transfer
Agreement”), the Transferee acquires and assumes all rights and obligations of
Party A under the Agreement and the relevant Transaction, (f) Party B shall
have
determined, in its sole discretion, acting in a commercially reasonable manner,
that such Transfer Agreement is effective to transfer to the Transferee all,
but
not less than all, of Party A’s rights and obligations under the Agreement and
all relevant Transactions; (g) Party A will be responsible for any costs
or
expenses incurred in connection with such transfer (including any replacement
cost of entering into a replacement transaction); (h) either (A) Moody’s has
been given prior written notice of such transfer and the Rating Agency Condition
is satisfied with respect to S&P or (B) each Rating Agency has been given
prior written notice of such transfer and such transfer is in connection
with
the assignment and assumption of this Agreement without modification of its
terms, other than party names, dates relevant to the effective date of such
transfer, tax representations (provided that the representations in Part
2(a)(i)
are not modified) and any other representations regarding the status of the
substitute counterparty, notice information and account details; and (i)
such
transfer otherwise complies with the terms of the Pooling and Servicing
Agreement.
Page
13 of
17
(k)
|
Compliance
with Regulation AB
|
(i) Party
A
acknowledges that for so long as there are reporting obligations with respect
to
this Transaction under Regulation AB (“Regulation
AB”)
under
the Securities Act of 1933, as amended, and the Securities Exchange Act of
1934,
as amended (the “1934
Act”),
the
Depositor is required under Regulation AB, to disclose certain information
set
forth in Regulation AB regarding Party A or its group of affiliated entities,
if
applicable, depending on the aggregate “significance percentage” of this
Agreement and any other derivative contracts between Party A or its group
of
affiliated entities, if applicable, and Party B, as calculated from time
to time
in accordance with Item 1115 of Regulation AB.
(ii) Subject
to the provisions of clause (iii) below, and so long as there are reporting
obligations with respect to this Transaction under Regulation AB, if the
Depositor determines, reasonably and in good faith, that the aggregate
significance percentage of this Agreement has increased to nine (9) percent,
then the Depositor may request from Party A (such request, a “Hedge Disclosure
Request”) on a Business Day after the date of such determination the same
information set forth in Item 1115(b) of Regulation AB (such requested
information, subject to the last sentence of this paragraph, the “Hedge
Financial Disclosure”) that would have been required if the significance
percentage had in fact increased to ten (10) percent. The Depositor or any
of
its agents shall provide Party A with the calculations and any other information
reasonably requested by Party A with respect to the Depositor’s determination
that led to the Hedge Disclosure Request. The parties hereto further agree
that
the Hedge Financial Disclosure provided to meet the Hedge Disclosure Request
may
be, solely at Party A’s option, either the information set forth in Item
1115(b)(1) or Item 1115(b)(2) of Regulation AB.
(iii) So
long
as there are reporting obligations with respect to this Transaction under
Regulation AB, if the Depositor determines, reasonably and in good faith,
that
the aggregate significance percentage of this Agreement has increased to
nineteen (19) percent, then the Depositor may make a Hedge Disclosure Request
to
Party A on a Business Day after the date of such determination for Hedge
Financial Disclosure that would have been required if the significance
percentage had in fact increased to twenty (20) percent (and, accordingly,
consists of the information set forth in Item 1115(b)(2) of Regulation AB).
The
Depositor or any of its agents shall provide Party A with the calculations
and
any other information reasonably requested by Party A with respect to the
Depositor’s determination that led to the Hedge Disclosure Request.
(iv) Upon
the
occurrence of a Hedge Disclosure Request, Party A, at its own expense, shall
(a)
provide the Depositor with the Hedge Financial Disclosure, (b) subject to
Rating
Agency Condition, secure another entity to replace Party A as party to this
Agreement on terms substantially similar to this Agreement which entity is
able
to provide the Hedge Financial Disclosure or (c) obtain a guaranty of Party
A’s
obligations under this Agreement from an affiliate of Party A that is able
to
provide the Hedge Financial Disclosure, such that disclosure provided in
respect
of the affiliate will satisfy any disclosure requirements applicable to Party
A,
and cause such affiliate to provide Hedge Financial Disclosure. For purposes
of
clause (b) above, the parties agree that National Westminster Bank Plc
(“NatWest”)
shall
be an acceptable replacement for Party A, so long as NatWest satisfies the
conditions specified in such clause (b). If permitted by Regulation AB, any
required Hedge Financial Disclosure may be provided by incorporation by
reference from reports filed pursuant to the 1934 Act.
Page
14 of
17
(v) Party
A
agrees that, if it responds to a Hedge Disclosure Request by providing Hedge
Financial Disclosure, then, for so long as the Depositor has reporting
obligations under the 1934 Act with respect to this Transaction, it will
provide
any updates to Hedge Financial Disclosure within 5 Business Days following
the
availability thereof. If permitted by Regulation AB, any such update may
be
provided by incorporation by reference from reports filed pursuant to the
1934
Act.
(l) |
Amendment.
Notwithstanding any provision to the contrary in this Agreement,
no
amendment, modification, or waiver of either this Agreement or
any
Transaction under this Agreement shall be permitted by either party
unless
each of the Rating Agencies has been provided prior written notice
of the
same and S&P confirms in writing (including by facsimile transmission)
that it will not downgrade, withdraw or otherwise modify its then-current
ratings of the Certificates.
|
(m) |
Severability.
If
any term, provision, covenant, or condition of the Agreement, or
the
application thereof to any other party or circumstance, shall be
held
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 the Agreement has been
executed
with the invalid or unenforceable provision portion eliminated,
so long as
the Agreement as so modified continues to express, without material
change, the original intentions of the parties as to the subject
matter of
the Agreement and the deletion of such portion of the Agreement
will not
substantially impair the respective benefits or expectations of
the
parties. The parties shall endeavor to engage in good faith negotiations
to replace any invalid or unenforceable term, provision, covenant
or
conditions with a valid or enforceable term, provision, covenant
or
condition, the economic effect of which comes as close as possible
to that
of the invalid or unenforceable term, provision, covenant or
condition.
|
(n) |
Counterparts.
This
Agreement may be executed in several counterparts, each of which
shall be
deemed an original but all of which together shall constitute one
and the
same instrument.
|
(o) |
USA
PATRIOT Act Notice.
Party A hereby notifies Party B that pursuant to the requirements
of the
USA PATRIOT ACT (Title III of Pub. L. 107-56 (signed into law October
26,
2001)) (the “Act”),
it is required to obtain, verify and record information that identifies
Party B, which information includes the name and address of Party
B and
other information that will allow Party A to identify Party B in
accordance with the Act.
|
(p) |
Agency
Role of Greenwich Capital Markets, Inc.
In
connection with this Agreement, Greenwich Capital Markets, Inc.
has acted
as agent on behalf of Party A. Greenwich Capital Markets, Inc.
has not
guaranteed and is not otherwise responsible for the obligations
of Party A
under this Agreement.
|
Page
15 of
17
(q)
|
Non-Recourse.
Party A acknowledges and agrees that, notwithstanding any provision
in
this Agreement to the contrary, the obligations of Party B hereunder
are
limited recourse obligations of Party B, payable solely from the
Assets
and the proceeds thereof, in accordance with the terms of the Pooling
and
Servicing Agreement. In the event that the Assets and the proceeds
thereof
applied in accordance with the priority of payments specified in
the
Pooling and Servicing Agreement, should be insufficient to satisfy
all
claims outstanding and following the realization of the Assets
and the
proceeds thereof, any claims against or obligations of Party B
under this
Agreement still outstanding shall be extinguished and thereafter
not
revive. This provision shall survive the termination of this
Agreement.
|
(r) |
Third
Party Beneficiary.
The Depositor shall be an express third party beneficiary of this
Agreement with respect to Party A’s undertakings under Part 5(k) only.
|
(s) |
Defined
Terms.
Terms capitalized but not defined herein or in the Definitions
incorporated herein shall have the respective meanings attributed
to them
in the Pooling and Servicing
Agreement.
|
[Signature
Page Immediately Follows]
Page
16 of
17
IN
WITNESS WHEREOF, Party A and Party B have caused this Schedule to be duly
executed as its act and deed as of the date first written above.
THE
ROYAL BANK OF SCOTLAND PLC
By:
Greenwich Capital Markets, Inc.,
As
Its Agent
|
XXXXX
FARGO BANK, N.A., solely in its capacity as Yield Maintenance
Administrator on behalf of the Yield Maintenance Trust with respect
to
HarborView Mortgage Loan Trust Mortgage Loan Pass-Through Certificates,
Series 2007-3
|
By
/s/
Xxxxx X.
Xxxxxx
Name:
Xxxxx X. Xxxxxx
Title:
Managing Director
|
By
/s/
Xxxxxx X.
Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President
|
Page
17 of
17
EXECUTION
|
|
(Bilateral Form) |
(ISDA
Agreements
Subject to New York Law
Only)
|
ISDA®
International
Swaps and Derivatives Association, Inc.
CREDIT
SUPPORT ANNEX
to
the
Schedule to the Master Agreement
dated
as
of April 27, 2007
between
The
Royal Bank of Scotland plc
|
and
|
Xxxxx
Fargo Bank, National Association, solely as yield maintenance
administrator on behalf of the Yield Maintenance Trust with respect
to
HarborView Mortgage Loan Trust Mortgage Loan Pass-Through Certificates,
Series 2007-3
|
(“Party
A”)
|
(“Party
B”)
|
This
Annex supplements, forms part of, and is subject to, the above-referenced
Agreement, is part of its Schedule and is a Credit Support Document under
this
Agreement with respect to each party.
Accordingly,
the parties agree as follows:
Paragraph
1. Interpretation
(a) Definitions
and Inconsistency.
Capitalized terms not otherwise defined herein or elsewhere in this Agreement
have the meanings specified pursuant to Paragraph 12, and all references
in this
Annex to Paragraphs are to Paragraphs of this Annex. In the event of any
inconsistency between this Annex and the other provisions of this Schedule,
this
Annex will prevail, and in the event of any inconsistency between Paragraph
13
and the other provisions of this Annex, Paragraph 13 will prevail.
(b) Secured
Party and Pledgor.
All
references in this Annex to the “Secured Party” will be to either party when
acting in that capacity and all corresponding references to the “Pledgor” will
be to the other party when acting in that capacity; provided, however, that
if
Other Posted Support is held by a party to this Annex, all references herein
to
that party as the Secured Party with respect to that Other Posted Support
will
be to that party as the beneficiary thereof and will not subject that support
or
that party as the beneficiary thereof to provisions of law generally relating
to
security interests and secured parties.
Paragraph
2. Security Interest
Each
party, as the Pledgor, hereby pledges to the other party, as the Secured
Party,
as security for its Obligations, and grants to the Secured Party a first
priority continuing security interest in, lien on and right of Set-off against
all Posted Collateral Transferred to or received by the Secured Party hereunder.
Upon the Transfer by the Secured Party to the Pledgor of Posted Collateral,
the
security interest and lien granted hereunder on that Posted Collateral will
be
released immediately and, to the extent possible, without any further action
by
either party.
Paragraph
3. Credit Support Obligations
(a) Delivery
Amount.
Subject
to Paragraphs 4 and 5, upon a demand made by the Secured Party on or promptly
following a Valuation Date, if the Delivery Amount for that Valuation Date
equals or exceeds the Pledgor’s Minimum Transfer Amount, then the Pledgor will
Transfer to the Secured Party Eligible Credit Support having a Value as of
the
date of Transfer at least equal to the applicable Delivery Amount (rounded
pursuant to Paragraph 13). Unless otherwise specified in Paragraph 13, the
“Delivery
Amount”
applicable to the Pledgor for any Valuation Date will equal the amount by
which:
(i) the
Credit Support Amount
exceeds
(ii) the
Value
as of that Valuation Date of all Posted Credit Support held by the Secured
Party.
(b) Return
Amount.
Subject
to Paragraphs 4 and 5, upon a demand made by the Pledgor on or promptly
following a Valuation Date, if the Return Amount for that Valuation Date
equals
or exceeds the Secured Party’s Minimum Transfer Amount, then the Secured Party
will Transfer to the Pledgor Posted Credit Support specified by the Pledgor
in
that demand having a Value as of the date of Transfer as close as practicable
to
the applicable Return Amount (rounded pursuant to Paragraph 13). Unless
otherwise specified in Paragraph 13, the “Return
Amount”
applicable to the Secured Party for any Valuation Date will equal the amount
by
which:
(i) the
Value
as of that Valuation Date of all Posted Credit Support held by the Secured
Party
exceeds
(ii) the
Credit Support Amount.
“Credit
Support Amount”
means,
unless otherwise specified in Paragraph 13, for any Valuation Date (i) the
Secured Party’s Exposure for that Valuation Date plus (ii) the aggregate of all
Independent Amounts applicable to the Pledgor, if any, minus (iii) all
Independent Amounts applicable to the Secured Party, if any, minus (iv) the
Pledgor’s Threshold; provided, however, that the Credit Support Amount will be
deemed to be zero whenever the calculation of Credit Support Amount yields
a
number less than zero.
2
Paragraph
4. Conditions Precedent, Transfer Timing, Calculations and
Substitutions
(a) Conditions
Precedent.
Each
Transfer obligation of the Pledgor under Paragraphs 3 and 5 and of the Secured
Party under Paragraphs 3, 4(d)(ii), 5 and 6(d) is subject to the conditions
precedent that:
(i) no
Event
of Default, Potential Event of Default or Specified Condition has occurred
and
is continuing with respect to the other party; and
(ii) no
Early
Termination Date for which any unsatisfied payment obligations exist has
occurred or been designated as the result of an Event of Default or Specified
Condition with respect to the other party.
(b) Transfer
Timing.
Subject
to Paragraphs 4(a) and 5 and unless otherwise specified, if a demand for
the
Transfer of Eligible Credit Support or Posted Credit Support is made by the
Notification Time, then the relevant Transfer will be made not later than
the
close of business on the next Local Business Day; if a demand is made after
the
Notification Time, then the relevant Transfer will be made not later than
the
close of business on the second Local Business Day thereafter.
(c) Calculations.
All
calculations of Value and Exposure for purposes of Paragraphs 3 and 6(d)
will be
made by the Valuation Agent as of the Valuation Time. The Valuation Agent
will
notify each party (or the other party, if the Valuation Agent is a party)
of its
calculations not later than the Notification Time on the Local Business Day
following the applicable Valuation Date (or in the case of Paragraph 6(d),
following the date of calculation).
Substitutions.
(i) Unless
otherwise specified in Paragraph 13, upon notice to the Secured Party specifying
the items of Posted Credit Support to be exchanged, the Pledgor may, on any
Local Business Day, Transfer to the Secured Party substitute Eligible Credit
Support (the “Substitute
Credit Support”);
and
(ii) subject
to Paragraph 4(a), the Secured Party will Transfer to the Pledgor the items
of
Posted Credit Support specified by the Pledgor in its notice not later than
the
Local Business Day following the date on which the Secured Party receives
the
Substitute Credit Support, unless otherwise specified in Paragraph 13 (the
“Substitution
Date”);
provided, however, that the Secured Party will only be obligated to Transfer
Posted Credit Support with a Value as of the date of Transfer of that Posted
Credit Support equal to the Value as of that date of the Substitute Credit
Support.
3
Paragraph
5. Dispute Resolution
If
a
party (a “Disputing
Party”)
disputes (I) the Valuation Agent’s calculation of a Delivery Amount or a Return
Amount or (II) the Value of any Transfer of Eligible Credit Support or Posted
Credit Support, then (1) the Disputing Party will notify the other party
and the
Valuation Agent (if the Valuation Agent is not the other party) not later
than
the close of business on the Local Business Day following (X) the date that
the
demand is made under Paragraph 3 in the case of (I) above or (Y) the date
of
Transfer in the case of (II) above, (2) subject to Paragraph 4(a), the
appropriate party will Transfer the undisputed amount to the other party
not
later than the close of business on the Local Business Day following (X)
the
date that the demand is made under Paragraph 3 in the case of (I) above or
(Y)
the date of Transfer in the case of (II) above, (3) the parties will consult
with each other in an attempt to resolve the dispute and (4) if they fail
to
resolve the dispute by the Resolution Time, then:
(i) In
the
case of a dispute involving a Delivery Amount or Return Amount, unless otherwise
specified in Paragraph 13, the Valuation Agent will recalculate the Exposure
and
the Value as of the Recalculation Date by:
(A) utilizing
any calculations of Exposure for the Transactions (or Swap Transactions)
that
the parties have agreed are not in dispute;
(B) calculating
the Exposure for the Transactions (or Swap Transactions) in dispute by seeking
four actual quotations at mid-market from Reference Market-makers for purposes
of calculating Market Quotation, and taking the arithmetic average of those
obtained; provided that if four quotations are not available for a particular
Transaction (or Swap Transaction), then fewer than four quotations may be
used
for that Transaction (or Swap Transaction); and if no quotations are available
for a particular Transaction (or Swap Transaction), then the Valuation Agent’s
original calculations will be used for that Transaction (or Swap Transaction);
and
(C) utilizing
the procedures specified in Paragraph 13 for calculating the Value, if disputed,
of Posted Credit Support.
(ii) In
the
case of a dispute involving the Value of any Transfer of Eligible Credit
Support
or Posted Credit Support, the Valuation Agent will recalculate the Value
as of
the date of Transfer pursuant to Paragraph 13.
Following
a recalculation pursuant to this Paragraph, the Valuation Agent will notify
each
party (or the other party, if the Valuation Agent is a party) not later than
the
Notification Time on the Local Business Day following the Resolution Time.
The
appropriate party will, upon demand following that notice by the Valuation
Agent
or a resolution pursuant to (3) above and subject to Paragraphs 4(a) and
4(b),
make the appropriate Transfer.
Paragraph
6. Holding and Using Posted Collateral
(a) Care
of Posted Collateral.
Without
limiting the Secured Party’s rights under Paragraph 6(c), the Secured Party will
exercise reasonable care to assure the safe custody of all Posted Collateral
to
the extent required by applicable law, and in any event the Secured Party
will
be deemed to have exercised reasonable care if it exercises at least the
same
degree of care as it would exercise with respect to its own property. Except
as
specified in the preceding sentence, the Secured Party will have no duty
with
respect to Posted Collateral, including, without limitation, any duty to
collect
any Distributions, or enforce or preserve any rights pertaining
thereto.
4
(b) Eligibility
to Hold Posted Collateral; Custodians.
(i) General.
Subject
to the satisfaction of any conditions specified in Paragraph 13 for holding
Posted Collateral, the Secured Party will be entitled to hold Posted Collateral
or to appoint an agent (a “Custodian”) to hold Posted Collateral for the Secured
Party. Upon notice by the Secured Party to the Pledgor of the appointment
of a
Custodian, the Pledgor’s obligations to make any Transfer will be discharged by
making the Transfer to that Custodian. The holding of Posted Collateral by
a
Custodian will be deemed to be the holding of that Posted Collateral by the
Secured Party for which the Custodian is acting.
(ii) Failure
to Satisfy Conditions.
If the
Secured Party or its Custodian fails to satisfy any conditions for holding
Posted Collateral, then upon a demand made by the Pledgor, the Secured Party
will, not later than five Local Business Days after the demand, Transfer
or
cause its Custodian to Transfer all Posted Collateral held by it to a Custodian
that satisfies those conditions or to the Secured Party if it satisfies those
conditions.
(iii) Liability.
The
Secured Party will be liable for the acts or omissions of its Custodian to
the
same extent that the Secured Party would be liable hereunder for its own
acts or
omissions.
(c) Use
of Posted Collateral.
Unless
otherwise specified in Paragraph 13 and without limiting the rights and
obligations of the parties under Paragraphs 3, 4(d)(ii), 5, 6(d) and 8, if
the
Secured Party is not a Defaulting Party or an Affected Party with respect
to a
Specified Condition and no Early Termination Date has occurred or been
designated as the result of an Event of Default or Specified Condition with
respect to the Secured Party, then the Secured Party will, notwithstanding
Section 9-207 of the New York Uniform Commercial Code, have the right
to:
(i) sell,
pledge, rehypothecate, assign, invest, use, commingle or otherwise dispose
of,
or otherwise use in its business any Posted Collateral it holds, free from
any
claim or right of any nature whatsoever of the Pledgor, including any equity
or
right of redemption by the Pledgor; and
(ii) register
any Posted Collateral in the name of the Secured Party, its Custodian or
a
nominee for either.
For
purposes of the obligation to Transfer Eligible Credit Support or Posted
Credit
Support pursuant to Paragraphs 3 and 5 and any rights or remedies authorized
under this Agreement, the Secured Party will be deemed to continue to hold
all
Posted Collateral and to receive Distributions made thereon, regardless of
whether the Secured Party has exercised any rights with respect to any Posted
Collateral pursuant to (i) or (ii) above.
5
(d) Distributions
and Interest Amount.
(i) Distributions.
Subject
to Paragraph 4(a), if the Secured Party receives or is deemed to receive
Distributions on a Local Business Day, it will Transfer to the Pledgor not
later
than the following Local Business Day any Distributions it receives or is
deemed
to receive to the extent that a Delivery Amount would not be created or
increased by that Transfer, as calculated by the Valuation Agent (and the
date
of calculation will be deemed to be a Valuation Date for this
purpose).
(ii) Interest
Amount.
Unless
otherwise specified in Paragraph 13 and subject to Paragraph 4(a), in lieu
of
any interest, dividends or other amounts paid or deemed to have been paid
with
respect to Posted Collateral in the form of Cash (all of which may be retained
by the Secured Party), the Secured Party will Transfer to the Pledgor at
the
times specified in Paragraph 13 the Interest Amount to the extent that a
Delivery Amount would not be created or increased by that Transfer, as
calculated by the Valuation Agent (and the date of calculation will be deemed
to
be a Valuation Date for this purpose). The Interest Amount or portion thereof
not Transferred pursuant to this Paragraph will constitute Posted Collateral
in
the form of Cash and will be subject to the security interest granted under
Paragraph 2.
Paragraph
7. Events of Default
For
purposes of Section 5(a)(iii)(1) of this Agreement, an Event of Default will
exist with respect to a party if:
(i) that
party fails (or fails to cause its Custodian) to make, when due, any Transfer
of
Eligible Collateral, Posted Collateral or the Interest Amount, as applicable,
required to be made by it and that failure continues for two Local Business
Days
after notice of that failure is given to that party;
(ii) that
party fails to comply with any restriction or prohibition specified in this
Annex with respect to any of the rights specified in Paragraph 6(c) and that
failure continues for five Local Business Days after notice of that failure
is
given to that party; or
(iii) that
party fails to comply with or perform any agreement or obligation other than
those specified in Paragraphs 7(i) and 7(ii) and that failure continues for
30
days after notice of that failure is given to that party.
Paragraph
8. Certain Rights and Remedies
(a) Secured
Party’s Rights and Remedies.
If at
any time (1) an Event of Default or Specified Condition with respect to the
Pledgor has occurred and is continuing or (2) an Early Termination Date has
occurred or been designated as the result of an Event of Default or Specified
Condition with respect to the Pledgor, then, unless the Pledgor has paid
in full
all of its Obligations that are then due, the Secured Party may exercise
one or
more of the following rights and remedies:
6
(i) all
rights and remedies available to a secured party under applicable law with
respect to Posted Collateral held by the Secured Party;
(ii) any
other
rights and remedies available to the Secured Party under the terms of Other
Posted Support, if any;
(iii) the
right
to Set-off any amounts payable by the Pledgor with respect to any Obligations
against any Posted Collateral or the Cash equivalent of any Posted Collateral
held by the Secured Party (or any obligation of the Secured Party to Transfer
that Posted Collateral); and
(iv) the
right
to liquidate any Posted Collateral held by the Secured Party through one
or more
public or private sales or other dispositions with such notice, if any, as
may
be required under applicable law, free from any claim or right of any nature
whatsoever of the Pledgor, including any equity or right of redemption by
the
Pledgor (with the Secured Party having the right to purchase any or all of
the
Posted Collateral to be sold) and to apply the proceeds (or the Cash equivalent
thereof) from the liquidation of the Posted Collateral to any amounts payable
by
the Pledgor with respect to any Obligations in that order as the Secured
Party
may elect.
Each
party acknowledges and agrees that Posted Collateral in the form of securities
may decline speedily in value and is of a type customarily sold on a recognized
market, and, accordingly, the Pledgor is not entitled to prior notice of
any
sale of that Posted Collateral by the Secured Party, except any notice that
is
required under applicable law and cannot be waived.
(b) Pledgor’s
Rights and Remedies.
If at
any time an Early Termination Date has occurred or been designated as the
result
of an Event of Default or Specified Condition with respect to the Secured
Party,
then (except in the case of an Early Termination Date relating to less than
all
Transactions (or Swap Transactions) where the Secured Party has paid in full
all
of its obligations that are then due under Section 6(e) of this
Agreement):
(i) the
Pledgor may exercise all rights and remedies available to a pledgor under
applicable law with respect to Posted Collateral held by the Secured
Party;
(ii) the
Pledgor may exercise any other rights and remedies available to the Pledgor
under the terms of Other Posted Support, if any;
(iii) the
Secured Party will be obligated immediately to Transfer all Posted Collateral
and the Interest Amount to the Pledgor; and
(iv) to
the
extent that Posted Collateral or the Interest Amount is not so Transferred
pursuant to (iii) above, the Pledgor may:
(A) Set-off
any amounts payable by the Pledgor with respect to any Obligations against
any
Posted Collateral or the Cash equivalent of any Posted Collateral held by
the
Secured Party (or any obligation of the Secured Party to Transfer that Posted
Collateral); and
7
(B) to
the
extent that the Pledgor does not Set-off under (iv)(A) above, withhold payment
of any remaining amounts payable by the Pledgor with respect to any Obligations,
up to the Value of any remaining Posted Collateral held by the Secured Party,
until that Posted Collateral is Transferred to the Pledgor.
(c) Deficiencies
and Excess Proceeds.
The
Secured Party will Transfer to the Pledgor any proceeds and Posted Credit
Support remaining after liquidation, Set-off and/or application under Paragraphs
8(a) and 8(b) after satisfaction in full of all amounts payable by the Pledgor
with respect to any Obligations; the Pledgor in all events will remain liable
for any amounts remaining unpaid after any liquidation, Set-off and/or
application under Paragraphs 8(a) and 8(b).
(d) Final
Returns.
When no
amounts are or thereafter may become payable by the Pledgor with respect
to any
Obligations (except for any potential liability under Section 2(d) of this
Agreement), the Secured Party will Transfer to the Pledgor all Posted Credit
Support and the Interest Amount, if any.
Paragraph
9. Representations
Each
party represents to the other party (which representations will be deemed
to be
repeated as of each date on which it, as the Pledgor, Transfers Eligible
Collateral) that:
(i) it
has
the power to grant a security interest in and lien on any Eligible Collateral
it
Transfers as the Pledgor and has taken all necessary actions to authorize
the
granting of that security interest and lien;
(ii) it
is the
sole owner of or otherwise has the right to Transfer all Eligible Collateral
it
Transfers to the Secured Party hereunder, free and clear of any security
interest, lien, encumbrance or other restrictions other than the security
interest and lien granted under Paragraph 2,
(iii) upon
the
Transfer of any Eligible Collateral to the Secured Party under the terms
of this
Annex, the Secured Party will have a valid and perfected first priority security
interest therein (assuming that any central clearing corporation or any
third-party financial intermediary or other entity not within the control
of the
Pledgor involved in the Transfer of that Eligible Collateral gives the notices
and takes the action required of it under applicable law for perfection of
that
interest); and
(iv) the
performance by it of its obligations under this Annex will not result in
the
creation of any security interest, lien or other encumbrance on any Posted
Collateral other than the security interest and lien granted under Paragraph
2.
Paragraph
10. Expenses
(a) General.
Except
as otherwise provided in Paragraphs 10(b) and 10(c), each party will pay
its own
costs and expenses in connection with performing its obligations under this
Annex and neither party will be liable for any costs and expenses incurred
by
the other party in connection herewith.
8
(b) Posted
Credit Support.
The
Pledgor will promptly pay when due all taxes, assessments or charges of any
nature that are imposed with respect to Posted Credit Support held by the
Secured Party upon becoming aware of the same, regardless of whether any
portion
of that Posted Credit Support is subsequently disposed of under Paragraph
6(c),
except for those taxes, assessments and charges that result from the exercise
of
the Secured Party’s rights under Paragraph 6(c).
(c) Liquidation/Application
of Posted Credit Support.
All
reasonable costs and expenses incurred by or on behalf of the Secured Party
or
the Pledgor in connection with the liquidation and/or application of any
Posted
Credit Support under Paragraph 8 will be payable, on demand and pursuant
to the
Expenses Section of this Agreement, by the Defaulting Party or, if there
is no
Defaulting Party, equally by the parties.
Paragraph
11. Miscellaneous
(a) Default
Interest.
A
Secured Party that fails to make, when due, any Transfer of Posted Collateral
or
the Interest Amount will be obligated to pay the Pledgor (to the extent
permitted under applicable law) an amount equal to interest at the Default
Rate
multiplied by the Value of the items of property that were required to be
Transferred, from (and including) the date that Posted Collateral or Interest
Amount was required to be Transferred to (but excluding) the date of Transfer
of
that Posted Collateral or Interest Amount. This interest will be calculated
on
the basis of daily compounding and the actual number of days
elapsed.
(b) Further
Assurances.
Promptly
following a demand made by a party, the other party will execute, deliver,
file
and record any financing statement, specific assignment or other document
and
take any other action that may be necessary or desirable and reasonably
requested by that party to create, preserve, perfect or validate any security
interest or lien granted under Paragraph 2, to enable that party to exercise
or
enforce its rights under this Annex with respect to Posted Credit Support
or an
Interest Amount or to effect or document a release of a security interest
on
Posted Collateral or an Interest Amount.
(c) Further
Protection.
The
Pledgor will promptly give notice to the Secured Party of, and defend against,
any suit, action, proceeding or lien that involves Posted Credit Support
Transferred by the Pledgor or that could adversely affect the security interest
and lien granted by it under Paragraph 2, unless that suit, action, proceeding
or lien results from the exercise of the Secured Party’s rights under Paragraph
6(c).
(d) Good
Faith and Commercially Reasonable Manner.
Performance of all obligations under this Annex, including, but not limited
to,
all calculations, valuations and determinations made by either party, will
be
made in good faith and in a commercially reasonable manner.
(e) Demands
and Notices.
All
demands and notices made by a party under this Annex will be made as specified
in the Notices Section of this Agreement, except as otherwise provided in
Paragraph 13.
(f) Specifications
of Certain Matters.
Anything
referred to in this Annex as being specified in Paragraph 13 also may be
specified in one or more Confirmations or other documents and this Annex
will be
construed accordingly.
9
Paragraph
12. Definitions
As
used
in this Annex:
“Cash”
means
the lawful currency of the United States of America. “Credit
Support Amount”
has the
meaning specified in Paragraph 3. “Custodian”
has the
meaning specified in Paragraphs 6(b)(i) and 13. “Delivery
Amount”
has the
meaning specified in Paragraph 3(a). “Disputing
Party”
has the
meaning specified in Paragraph 5.
“Distributions”
means
with respect to Posted Collateral other than Cash, all principal, interest
and
other payments and distributions of cash or other property with respect thereto,
regardless of whether the Secured Party has disposed of that Posted Collateral
under Paragraph 6(c). Distributions will not include any item of property
acquired by the Secured Party upon any disposition or liquidation of Posted
Collateral or, with respect to any Posted Collateral in the form of Cash,
any
distributions on that collateral, unless otherwise specified
herein.
“Eligible
Collateral”
means,
with respect to a party, the items, if any, specified as such for that party
in
Paragraph 13.
“Eligible
Credit Support”
means
Eligible Collateral and Other Eligible Support.
“Exposure”
means
for any Valuation Date or other date for which Exposure is calculated and
subject to Paragraph 5 in the case of a dispute, the amount, if any, that
would
be payable to a party that is the Secured Party by the other party (expressed
as
a positive number) or by a party that is the Secured Party to the other party
(expressed as a negative number) pursuant to Section 6(e)(ii)(2)(A) of this
Agreement as if all Transactions (or Swap Transactions) were being terminated
as
of the relevant Valuation Time; provided, however, that Market Quotation
will be
determined by the Valuation Agent using its estimates at mid-market of the
amounts that would be paid for Replacement Transactions (as that term is
defined
in the definition of “Market Quotation”).
“Independent
Amount”
means,
with respect to a party, the amount specified as such for that party in
Paragraph 13; if no amount is specified, zero.
“Interest
Amount”
means,
with respect to an Interest Period, the aggregate sum of the amounts of interest
calculated for each day in that Interest Period on the principal amount of
Posted Collateral in the form of Cash held by the Secured Party on that day,
determined by the Secured Party for each such day as follows:
(x)
the
amount of that Cash on that day; multiplied by
(y)
the
Interest Rate in effect for that day; divided by
(z)
360.
“Interest
Period”
means
the period from (and including) the last Local Business Day on which an Interest
Amount was Transferred (or, if no Interest Amount has yet been Transferred,
the
Local Business Day on which Posted Collateral in the form of Cash was
Transferred to or received by the Secured Party) to (but excluding) the Local
Business Day on which the current Interest Amount is to be
Transferred.
10
“Interest
Rate”
means
the rate specified in Paragraph 13.
“Local
Business Day”
unless
otherwise specified in Paragraph 13, has the meaning specified in the
Definitions Section of this Agreement, except that references to a payment
in
clause (b) thereof will be deemed to include a Transfer under this
Annex.
“Minimum
Transfer Amount”
means,
with respect to a party, the amount specified as such for that party in
Paragraph 13; if no amount is specified, zero.
“Notification
Time”
has the
meaning specified in Paragraph 13.
“Obligations”
means,
with respect to a party, all present and future obligations of that party
under
this Agreement and any additional obligations specified for that party in
Paragraph 13.
“Other
Eligible Support”
means,
with respect to a party, the items, if any, specified as such for that party
in
Paragraph 13.
“Other
Posted Support”
means
all Other Eligible Support Transferred to the Secured Party that remains
in
effect for the benefit of that Secured Party.
“Pledgor”
means
either party, when that party (i) receives a demand for or is required to
Transfer Eligible Credit Support under Paragraph 3(a) or (ii) has Transferred
Eligible Credit Support under Paragraph 3(a).
“Posted
Collateral”
means
all Eligible Collateral, other property, Distributions, and all proceeds
thereof
that have been Transferred to or received by the Secured Party under this
Annex
and not Transferred to the Pledgor pursuant to Paragraph 3(b), 4(d)(ii) or
6(d)(i) or released by the Secured Party under Paragraph 8. Any Interest
Amount
or portion thereof not Transferred pursuant to Paragraph 6(d)(ii) will
constitute Posted Collateral in the form of Cash.
“Posted
Credit Support”
means
Posted Collateral and Other Posted Support.
“Recalculation
Date”
means
the Valuation Date that gives rise to the dispute under Paragraph 5; provided,
however, that if a subsequent Valuation Date occurs under Paragraph 3 prior
to
the resolution of the dispute, then the “Recalculation Date” means the most
recent Valuation Date under Paragraph 3.
“Resolution
Time”
has the
meaning specified in Paragraph 13.
“Return
Amount”
has the
meaning specified in Paragraph 3(b).
“Secured
Party”
means
either party, when that party (i) makes a demand for or is entitled to receive
Eligible Credit Support under Paragraph 3(a) or (ii) holds or is deemed to
hold
Posted Credit Support.
11
“Specified
Condition”
means,
with respect to a party, any event specified as such for that party in Paragraph
13.
“Substitute
Credit Support”
has the
meaning specified in Paragraph 4(d)(i).
“Substitution
Date”
has the
meaning specified in Paragraph 4(d)(ii).
“Threshold”
means,
with respect to a party, the amount specified as such for that party in
Paragraph 13; if no amount is specified, zero.
“Transfer” means,
with respect to any Eligible Credit Support, Posted Credit Support or Interest
Amount, and in accordance with the instructions of the Secured Party, Pledgor
or
Custodian, as applicable:
(i) in
the
case of Cash, payment or delivery by wire transfer into one or more bank
accounts specified by the recipient;
(ii) in
the
case of certificated securities that cannot be paid or delivered by book-entry,
payment or delivery in appropriate physical form to the recipient or its
account
accompanied by any duly executed instruments of transfer, assignments in
blank,
transfer tax stamps and any other documents necessary to constitute a legally
valid transfer to the recipient;
(iii) in
the
case of securities that can be paid or delivered by book-entry, the giving
of
written instructions to the relevant depository institution or other entity
specified by the recipient, together with a written copy thereof to the
recipient, sufficient if complied with to result in a legally effective transfer
of the relevant interest to the recipient; and
(iv) in
the
case of Other Eligible Support or Other Posted Support, as specified in
Paragraph 13.
“Valuation
Agent”
has the
meaning specified in Paragraph 13.
“Valuation
Date”
means
each date specified in or otherwise determined pursuant to Paragraph
13.
“Valuation
Percentage”
means,
for any item of Eligible Collateral, the percentage specified in Paragraph
13.
“Valuation
time”
has the
meaning specified in Paragraph 13.
“Value”
means
for any Valuation Date or other date for which Value is calculated and subject
to Paragraph 5 in the case of a dispute, with respect to:
(i) Eligible
Collateral or Posted Collateral that is:
(A) Cash,
the
Amount thereof, and
12
(B) a
security, the bid price obtained by the Valuation Agent multiplied by the
applicable Valuation Percentage, if any;
(ii) Posted
Collateral that consists of items that are not specified as Eligible Collateral,
zero; and
(iii) Other
Eligible Support and Other Posted Support, as specified in Paragraph
13.
Paragraph
13. Elections and Variables
(a) Security
Interest for “Obligations”.
The term
“Obligations” as used in this Annex includes the following additional
obligations:
With
respect to Party A: Not applicable.
With
respect to Party B: Not applicable.
(b) Credit
Support Obligations.
(i)
Delivery
Amount, Return Amount and Credit Support Amount.
(A)
|
“Delivery
Amount”
has the meaning specified in Paragraph 3(a), except that (I) the
words
“upon a demand made by the Secured Party on or promptly following
a
Valuation Date” shall be deleted and replaced by the words “not later than
the close of business on each Valuation Date” and (II) the sentence
beginning “Unless otherwise specified in Paragraph 13” and ending “(ii)
the Value as of that Valuation Date of all Posted Credit Support
held by
the Secured Party.” shall be deleted and replaced by the
following:
|
(A) “The
“Delivery Amount” applicable to the Pledgor for any Valuation Date will equal
the greatest of
(B) (1)
the
amount by which (a) the S&P Collateral Amount for such Valuation Date
exceeds (b) the S&P Value as of such Valuation Date of all Posted Credit
Support held by the Secured Party,
(C) (2)
the
amount by which (a) the Xxxxx’x First Collateral Amount for such Valuation Date
exceeds (b) the Xxxxx’x First Trigger Value as of such Valuation Date of all
Posted Credit Support held by the Secured Party, and
(D) (3)
the
amount by which (a) the Xxxxx’x Second Collateral Amount for such Valuation Date
exceeds (b) the Xxxxx’x Second Trigger Value as of such Valuation Date of all
Posted Credit Support held by the Secured Party.”
(B)
|
“Return
Amount”
has the meaning specified in Paragraph 3(b), except that the sentence
beginning “Unless otherwise specified in Paragraph 13” and ending “(ii)
the Credit Support Amount.” shall be deleted and replaced by the
following:
|
13
“The
“Return Amount” applicable to the Secured Party for any Valuation Date will
equal the least of
(1)
the
amount by which (a) the S&P Value as of such Valuation Date of all Posted
Credit Support held by the Secured Party exceeds (b) the S&P Collateral
Amount for such Valuation Date,
(2)
the
amount by which (a) the Xxxxx’x First Trigger Value as of such Valuation Date of
all Posted Credit Support held by the Secured Party exceeds (b) the Xxxxx’x
First Collateral Amount for such Valuation Date, and
(3)
the
amount by which (a) the Xxxxx’x Second Trigger Value as of such Valuation Date
of all Posted Credit Support held by the Secured Party exceeds (b) the Xxxxx’x
Second Collateral Amount for such Valuation Date.”
(C)
|
“Credit
Support Amount”
shall not apply. For purposes of calculating any Delivery Amount
or Return
Amount for any Valuation Date, reference shall be made to the S&P
Collateral Amount, the Xxxxx’x First Collateral Amount, or the Xxxxx’x
Second Collateral Amount, in each case for such Valuation Date,
as
provided in Paragraphs 13(b)(i)(A) and 13(b)(i)(B),
above.
|
The
“S&P
Collateral Amount”
means,
for any Valuation Date, zero, provided that for so long as a First Rating
Trigger Event with respect to S&P has occurred and is continuing for at
least 30 days or a Second Rating Trigger Event with respect to S&P has
occurred and is continuing, the S&P Collateral Amount shall equal the sum of
(I) Party B’s Exposure and (II) the sum, for each transaction to which this
Annex relates, of the product
S&P
Volatility Buffer*Hedge Notional, where
“Hedge
Notional” means
the
product of (i) the notional amount of the relevant Transaction for the relevant
Calculation Period and (ii) the Scale Factor, if any, for such Transaction,
or,
if no Scale Factor is applicable for such Transaction, one.
“S&P
Volatility Buffer” means,
for any Transaction, the related percentage set forth in the following table.
The
higher of the S&P
short-term
credit rating of
(i)
Party A and (ii) the Credit
Support
Provider of Party A,
if
applicable
|
Remaining
Weighted
Average
Maturity
up
to 3
years
|
Remaining
Weighted
Average
Maturity
up
to 5
years
|
Remaining
Weighted
Average
Maturity
up
to 10
years
|
Remaining
Weighted
Average
Maturity
up
to 30
years
|
At
least “A-2”
|
2.75%
|
3.25%
|
4.00%
|
4.75%
|
“A-3”
|
3.25%
|
4.00%
|
5.00%
|
6.25%
|
“BB+”
or
lower
|
3.50%
|
4.50%
|
6.75%
|
7.50%
|
14
The
“Moody’s
First Collateral Amount”
means
zero, provided that for so long as (A) a First Rating Trigger Event with
respect
to Moody’s has occurred and is continuing and either (i) such event existed at
the time this Annex was executed or assigned by Party A to another party
or (ii)
at least 30 Local Business Days have elapsed since such event occurred and
(B)(i) no Second Rating Trigger Event with respect to Moody’s has occurred and
is continuing or (ii) less than 30 Local Business Days have elapsed since
the
occurrence of a Second Rating Trigger Event with respect to Moody’s, then the
Moody’s First Collateral Amount shall equal the sum of (I) Party B’s Exposure
and (ii) the sum, over all Transactions, of
Min
[15*DV01, 2%*Hedge Notional]; and
The
“Moody’s
Second Collateral Amount”
means
zero, provided that, for so long as a Second Rating Trigger Event with
respect to Moody’s
has
occurred and has been continuing for 30 or more Local Business Days, then
the
Moody’s Second Collateral Amount shall equal
Max
[0,
Next Payment, Party B’s Exposure + Additional Amount], where
Next
Payment = the sum of the net payments due from Party A to Party B (if any)
on
the next payment date for all Transactions.
Additional
Amount = the sum, over all Transactions of
(a)
|
with
respect to each Transaction that is a single currency swap with
a fixed
notional amount for each Calculation Period, Min [50*DV01, 8%*
Aggregate
Hedge Notional],
and
|
(b)
|
with
respect to each Transaction that is not a single-currency swap
with a
fixed notional amount for each Calculation Period, Min
[65*DV01, 10%* Aggregate Hedge Notional],
where
|
DV01
=
Party A’s estimate of the change in the mid-market value of Party B’s Exposure
resulting from a one basis point change in the swap curve, and
Aggregate
Hedge Notional = the aggregate of the product of (i) the applicable notional
amounts of each Transaction for the relevant Calculation Period and (ii)
the
Scale Factor, if any, for each respective Transaction, or, if no Scale Factor
is
applicable for a particular Transaction, one.
15
(ii)
Eligible Collateral.
The
following items will qualify as “Eligible Collateral” for the party specified
(for the avoidance of doubt, all Eligible Collateral to be denominated in
USD):
Collateral
Type
|
S&P
Valuation
Percentage
|
Moody’s
Valuation
Percentage
at First
Trigger
Rating Event
|
Moody’s
Valuation Percentage at
Second
Trigger
Rating
Event
|
(A)
Cash, in the form of USD
|
100%
|
100%
|
100%
|
(B)
Negotiable Debt Obligations (as defined below) issued by the Government
of
the United States of America having a remaining maturity of not
more than
one year.
|
98.9%
|
100%
|
100%
|
(C)
Negotiable Debt Obligations issued by the Government of the United
States
of America having a remaining maturity of more than one but not
more than
two years.
|
98.0%
|
100%
|
99%
|
(D)
Negotiable Debt Obligations issued by the Government of the United
States
of America having a remaining maturity of more than two but not
more than
three years.
|
97.4%
|
100%
|
98%
|
(E)
Negotiable Debt Obligations issued by the Government of the United
States
of America having a remaining maturity of more than three but not
more
than five years.
|
95.5%
|
100%
|
97%
|
(F)
Negotiable Debt Obligations issued by the Government of the United
States
of America having a remaining maturity of more than five but not
more than
seven years.
|
93.7%
|
100%
|
96%
|
(G)
Negotiable Debt Obligations issued by the Government of the United
States
of America having a remaining maturity of more than seven but not
more
than ten years.
|
92.5%
|
100%
|
94%
|
(H)
Negotiable Debt Obligations issued by the Government of the United
States
of America having a remaining maturity of more than ten but not
more than
twenty years.
|
91.1%
|
100%
|
90%
|
(I)
Negotiable Debt Obligations issued by the Government of the United
States
of America having a remaining maturity of more than twenty
years.
|
88.6%
|
100%
|
88%
|
16
As
used
above, the following terms have the indicated meanings:
“Negotiable
Debt Obligation”
means a
debt obligation in a stated principal amount with a non-variable fixed maturity,
which cannot be redeemed by its issuer before its maturity nor put to the
issuer
for redemption before its maturity. It must bear interest on its stated
principal amount at a non-variable fixed rate until maturity.
(iii)
Other
Eligible Support.
The
following items will qualify as “Other Eligible Support” for the party
specified: Not Applicable.
(iv)
Thresholds.
(A)
|
“Independent
Amount”
means with respect to Party A: Not
Applicable.
|
“Independent
Amount”
means
with respect to Party B: Not Applicable.
(B)
|
“Threshold”
means
with respect to Party A, infinity, provided that for so long as
(1) a
First Rating Trigger Event with respect to Moody's has occurred
and is
continuing and either (i) such
First Rating Trigger Event existed at the time this Annex was executed
or
(ii) at least 30 Local Business days have elapsed since such First
Rating
Trigger Event occurred, or
(2) a First Rating Trigger Event with respect to S&P has occurred and
is continuing for at least 30 days or a Second Rating Trigger Event
with
respect to S&P has occurred and is continuing, the
Threshold with respect to Party A shall be
zero.
|
“Threshold”
means
with respect to Party B, infinity.
(C)
|
“Minimum
Transfer Amount”
means with respect to Party A: USD
100,000, and with respect to Party B: USD 100,000, provided, that
if
the aggregate principal balance of the Certificates rated
by S&P ceases to be more than USD 50,000,000, the “Minimum
Transfer Amount”
shall be USD 50,000 and provided further that if a Party is a Defaulting
Party, or the Affected Party under an Additional Termination Event,
the
Minimum Transfer Amount for such party shall be
zero.
|
(D)
|
Rounding.
The Delivery Amount and the Return Amount will be rounded up and
down,
respectively, to the nearest integral multiple of $10,000.
|
(c)
|
(i)
External
Verification.
Notwithstanding anything to the contrary in the definitions of
Valuation
Agent or Valuation Date, at any time at which Party A (or, to the
extent
applicable, its Credit Support Provider) does not have a long-term
unsubordinated and unsecured debt rating of at least “BBB+” from S&P,
the Valuation Agent shall (A) calculate the Secured Party’s Exposure and
the S&P Value (as defined below) of Posted Credit Support on each
Valuation Date based on internal marks and (B) verify such calculations
with external marks monthly by obtaining on the last Local Business
Day of
each calendar month two external marks for each Transaction to
which this
Annex relates and for all Posted Credit Support; such verification
of the
Secured Party’s Exposure shall be based on the higher of the two external
marks. Each external xxxx in respect of a Transaction shall be
obtained
from an independent Reference Market-maker that would be eligible
and
willing to enter into such Transaction in the absence of the current
derivative provider, provided that an external xxxx xxx not be
obtained
from the same Reference Market-maker more than four times in any
12-month
period. The Valuation Agent shall obtain these external marks directly
or
through an independent third party, in either case at no cost to
Party B.
The Valuation Agent shall calculate on each Valuation Date (for
purposes
of this paragraph, the last Local Business Day in each calendar
month
referred to above shall be considered a Valuation Date) the Secured
Party’s Exposure based on the greater of the Valuation Agent’s internal
marks and the external marks received. If the S&P Value on any such
Valuation Date of all Posted Credit Support then held by the Secured
Party
is less than the S&P Collateral Amount on such Valuation Date (in each
case as determined pursuant to this paragraph), Party A shall,
within
three Local Business Days of such Valuation Date, Transfer to the
Secured
Party Eligible Credit Support having an S&P Value as of the date of
Transfer at least equal to such deficiency.
|
17
(ii)
Notice
to S&P.
At any
time at which Party A (or, to the extent applicable, its Credit Support
Provider) does not have a long-term unsubordinated and unsecured debt rating
of
at least “BBB+” from S&P, the Valuation Agent shall provide to S&P not
later than the Notification Time on the Local Business Day following each
Valuation Date its calculations of the Secured Party’s Exposure and the S&P
Value of any Eligible Credit Support or Posted Credit Support for that Valuation
Date. The Valuation Agent shall also provide to S&P any external marks
received pursuant to the preceding paragraph.
(d) Valuation
and Timing.
(i)
“Valuation
Agent”
means
Party A.
(ii)
“Valuation
Date”
means:
each Local Business Day.
(iii)
“Valuation
Time”
means
the close of business on the Local
Business
Day before the Valuation Date or date of calculation, as applicable;
provided,
however,
that the
calculations of Value and Exposure will be made as of approximately the same
time on the same date.
(iv)
“Notification
Time”
means
9:00 a.m., New York time, on a Local Business Day.
(d)
|
Conditions
Precedent and Secured Party's Rights and Remedies. For
purposes of Paragraph 8(a), each Termination Event will be a "Specified
Condition" for the Pledgor, if the Secured Party has designated
an Early
Termination Date in connection with the Termination Event. For
all other
purposes of this Annex, each Termination Event specified below
with
respect to a party will be a "Specified Condition" for that party
(that
party being the Affected Party if the Termination Event occurs
with
respect to that party):
|
Termination
Event
|
Party
A
|
Party
B
|
Illegality
|
[N/A]
|
[N/A]
|
Tax
Event
|
[N/A]
|
[N/A]
|
Tax
Event Upon Merger
|
[N/A]
|
[N/A]
|
Credit
Event Upon Merger
|
[N/A]
|
[N/A]
|
Additional
Termination Event(s)
|
[X]
|
[X]
|
18
(e) Substitution.
(i)
“Substitution
Date”
has the
meaning specified in Paragraph 4(d)(ii).
(ii)
Consent.
The
Pledgor shall obtain the Secured Party’s consent for any substitution pursuant
to Paragraph 4(d). Such consent shall not be unreasonably withheld.
(f) Dispute
Resolution.
(i)
“Resolution
Time”
means
9:00 a.m., New York time, on the Local Business Day following the date on
which
the notice of the dispute is given by the Disputing Party to the other
party.
(ii)
Value.
For the
purposes of Paragraphs 5(i)(c) and 5(ii), the Value of the outstanding Credit
Support Amount or of any transfer of Eligible Credit Support or Posted Credit
Support other than Cash (the “Non-Cash Credit Support”) will be calculated as
follows: the product of (A) appropriate Valuation Percentage and (B) the
sum of
(I) the mean of the bid prices quoted on such date by any three principal
market
makers for such Non-Cash Credit Support chosen by the Disputing Party, or
if
three such quotations are not available from principal market makers for
such
date, using two such quotations, or if only one such quotation is obtained
using
such quotation, or if no quotations are available using the mean of such
bid
prices as of the day, next preceding such date, on which one or more of such
quotations were available, plus (II) the accrued interest on such Non-Cash
Credit Support (except to the extent Transferred to a party pursuant to this
Agreement or included in the applicable price referred to in subparagraph
(A) of
this Clause) as of such date.
(iii)
Alternative.
The
provisions of Paragraph 5 will apply.
(g) Holding
and Using Posted Collateral.
(i)
Eligibility
to Hold Posted Collateral; Custodians.
Party
B
or its Custodian will be entitled to hold Posted Collateral pursuant to
Paragraph 6(b); provided
that the
following conditions applicable to it are satisfied:
(A)
|
In
the event that Party B holds Posted Collateral, Party B is not
a
Defaulting Party or an Affected Party under an Additional Termination
Event.
|
(B)
|
Posted
Collateral may be held only in the following jurisdiction: New
York and
Minnesota.
|
(C)
|
In
the event that the Custodian holds Posted Collateral, the long-term
unsubordinated unsecured debt of the Custodian is rated at least
“A+” and
“A-1” by Standard & Poors, a division of The XxXxxx-Xxxx Companies,
Inc. (or any successor thereto) and at least “A1” by Xxxxx’x Investors
Service, Inc. (or any successor
thereto).
|
Initially,
the Custodian for Party B is Xxxxx Fargo Bank, N.A.
(ii)
Use
of Posted Collateral.
The
provisions of Paragraph 6(c)(i) shall not apply.
19
(h) Distributions
and Interest Amount.
(i)
Interest Rate.
The
“Interest Rate” will be the weighted average rate of interest earned by the
Secured Party in respect of Posted Collateral in the form of Cash. Posted
Collateral shall be held in an Eligible Account.
(ii)
Transfer
of Interest Amount.
The
transfer of the Interest Amount will be made on the second Local Business
Day of
each calendar month in respect of the Interest Amount for the preceding calendar
month, provided,
however,
that
the obligation of Party B to Transfer any Interest Amount to Party A shall
be
limited to the extent that Party B has earned and received such funds and
such
funds are available to Party B.
(iii)
Alternative
to Interest Amount.
Not
applicable.
(i) Additional
Representation(s).
Not
applicable.
(j) Other
Eligible Support and Other Posted Support.
(i)
“Value”
with
respect to Other Eligible Support and Other Posted Support means: Not
applicable.
(ii)
“Transfer”
with
respect to Other Eligible Support and Other Posted Support means: Not
applicable.
(k) Demands
and Notices.
All
demands, specifications and notices under this Annex will be made pursuant
to
the Notices Section of this Agreement, unless otherwise specified
here:
Party
A:
Global
Collateral Support Unit
The
Royal
Bank of Scotland plc, Financial Markets
000
Xxxxxxxxxxx
Xxxxxx
XX0X 0XX
Facsimile:
44.207 000 0000
Telephone:
44.207 000 0000
With
a
copy to:
Greenwich
Capital Markets, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx
XX 00000
Attn:
Derivatives
Settlements
Telephone:
000-000-0000 (Xxx Xxxxx)
000-000-0000
(Operations main number)
Facsimile:
000-000-0000
20
Party
B:
Xxxxx
Fargo Bank, N.A. (the “Yield Maintenance Administrator”)
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Client Service Manager - HarborView 2007-3
Tel:
(000) 000-0000
Fax:
(000) 000-0000
(l) Address
for Transfers. All
transfers hereunder will be made to the account or accounts most recently
notified by each party to the other.
(m) Other
Provisions.
(i)
Single
Transferor and Single Transferee. Party
A
and Party B hereby agree that, notwithstanding anything to the contrary in
this
Annex, (a) the term “Secured Party” as used in this Annex means only Party B,
(b) the term “Pledgor” as used in this Annex means only Party A, (c) only Party
A makes the pledge and grant in Paragraph 2, the acknowledgement in the final
sentence of Paragraph 8(a) and the representations in Paragraph 9.
(ii)
Events
of Default. Paragraph
7 will not apply to cause any Event of Default to exist with respect to Party
B
except that Paragraph 7(i) will apply to Party B solely in respect of Party
B’s
obligations under Paragraph 3(b) of the Credit Support Annex. Notwithstanding
anything to the contrary in Paragraph 7, 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 Annex shall only be an Event of Default if (A) Second Rating
Trigger Event with respect to S&P has occurred and been continuing or (B) a
Second Rating Trigger Event with respect to Moody’s has occurred and been
continuing for 30 or more Local Business Days and such failure is not remedied
on or before the third Local Business Day after notice of such failure is
given
to Party A.
(iii)
Form
of Annex.
Party A
and Party B hereby agree that the text of Paragraphs 1 through 12, inclusive,
of
this Annex is intended to be the printed form of ISDA Credit Support Annex
(Bilateral Form - ISDA Agreements Subject to New York Law Only version) as
published and copyrighted in 1994 by the International Swaps and Derivatives
Association, Inc.
(iv)
Expenses.
Notwithstanding anything to the contrary in Paragraph 10, the Pledgor will
be
responsible for, and will reimburse the Secured Party for, all transfer and
other taxes and other costs involved in any Transfer of Eligible
Collateral.
(v)
Withholding.
Paragraph 6(d)(ii) is hereby amended by inserting immediately after “the
Interest Amount” in the fourth line thereof the words “less any applicable
withholding taxes.”
(vi)
“Local
Business Day”
means,
for purposes of the Credit Support Annex, any day on which (A) commercial
banks
are open for business (including dealings in foreign exchange and foreign
currency deposits) in New York and the location of Party A, Party B and any
Custodian, and (B) in relation to a Transfer of Eligible Collateral, any
day on
which the clearance system agreed between the parties for the delivery of
Eligible Collateral is open for acceptance and execution of settlement
instructions (or in the case of a Transfer of Cash or other Eligible Collateral
for which delivery is contemplated by other means a day on which commercial
banks are open for business (including dealings in foreign exchange and foreign
deposits) in New York and the location of Party A, Party B and any Custodian.
21
(vii)
Calculation
of Value.
Paragraph 4(c) is hereby amended by deleting the word “Value” and inserting in
lieu thereof “S&P Value, Moody’s First Trigger Value, Moody’s Second Trigger
Value”. Paragraph 4(d)(ii) is hereby amended by (A) deleting the words “a Value”
and inserting in lieu thereof “an S&P Value, Moody’s First Trigger Value,
and Moody’s Second Trigger Value” and (B) deleting the words “the Value” and
inserting in lieu thereof “S&P Value, Moody’s First Trigger Value and
Moody’s Second Trigger Value”. Paragraph 5 (flush language) is hereby amended by
deleting the word “Value” and inserting in lieu thereof “S&P Value, Moody’s
First Trigger Value, or Moody’s Second Trigger Value”. Paragraph 5(i) (flush
language) is hereby amended by deleting the word “Value” and inserting in lieu
thereof “S&P Value, Moody’s First Trigger Value, and Moody’s Second Trigger
Value”. Paragraph 5(i)(C) is hereby amended by deleting the word “the Value, if”
and inserting in lieu thereof “any one or more of the S&P Value, Moody’s
First Trigger Value, or Moody’s Second Trigger Value, as may be”. Paragraph
5(ii) is hereby amended by (1) deleting the first instance of the words “the
Value” and inserting in lieu thereof “any one or more of the S&P Value,
Moody’s First Trigger Value, or Moody’s Second Trigger Value” and (2) deleting
the second instance of the words “the Value” and inserting in lieu thereof “such
disputed S&P Value, Moody’s First Trigger Value, or Moody’s Second Trigger
Value”. Each of Paragraph 8(b)(iv)(B) and Paragraph 11(a) is hereby amended by
deleting the word “Value” and inserting in lieu thereof “least of the S&P
Value, Moody’s First Trigger Value, and Moody’s Second Trigger Value”.
(viii)
“Moody’s
First Trigger Value”
means,
on any date and with respect to any Eligible Collateral other than Cash,
the bid
price obtained by the Valuation Agent multiplied by the Moody’s First Trigger
Valuation Percentage for such Eligible Collateral set forth in Paragraph
13(b)(ii).
(ix)
“Moody’s
Second Trigger Value”
means,
on any date and with respect to any Eligible Collateral other than Cash,
the bid
price obtained by the Valuation Agent multiplied by the Moody’s Second Trigger
Valuation Percentage for such Eligible Collateral set forth in Paragraph
13(b)(ii).
(x)
“S&P
Value”
means,
on any date and with respect to any Eligible Collateral other than Cash,
the
product of (A) the bid price obtained by the Valuation Agent for such Eligible
Collateral and (B) the S&P Valuation Percentage for such Eligible Collateral
set forth in paragraph 13(b)(ii).
(xi)
Collateral
Account.
Party B
shall open and maintain a segregated account, which shall be an Eligible
Account, and hold, record and identify all Posted Collateral in such segregated
account
[SIGNATURE
PAGE IMMEDIATELY FOLLOWS]
22
THE
ROYAL BANK OF SCOTLAND PLC
By:
Greenwich Capital Markets, Inc., its agent
By_/s/
Xxxxx X. Wagner_____________________
Name:
Xxxxx X. Xxxxxx
Title:
Managing Director
|
Xxxxx
Fargo Bank, National Association, solely in its capacity as Yield
Maintenance Administrator on behalf of the Yield Maintenance Trust
with
respect to HarborView Mortgage Loan Trust 2007-3
By_/s/
Xxxxxx X. Oglesby___________________
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President
|
23
![]() |
|
Financial
Markets
000
Xxxxxxxxxxx
Xxxxxx
XX0X 0XX
|
|
April
27, 2007
|
The
Yield Maintenance Trust with respect to HarborView Mortgage
Loan
Trust 2007-3 (“Party
B”)
Xxxxx
Fargo Bank, N.A. (the “Yield
Maintenance Administrator”)
0000
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Client Service Manager - HarborView 2007-3
Tel:
(000) 000-0000
Fax:
(000) 000-0000
|
|
Greenwich
Capital Markets, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
XX 00000
Attn:
Xxxxxxx Xxxxxxx
Tel:
(000) 000-0000
Fax:
(000) 000-0000
|
|
Re:
|
|
Our
Reference Number:
|
The
purpose of this letter agreement is to confirm the terms and conditions of
the
Transaction entered into between the yield maintenance trust (the “Yield
Maintenance Trust”)
with
respect to HarborView Mortgage Loan Trust 2007-3, a New York common law trust
(the “Trust”),
acting through its Yield Maintenance Administrator, Xxxxx Fargo Bank, N.A.
(the
“Yield
Maintenance Administrator”)
and
The Royal Bank of Scotland plc, acting through its agent, Greenwich Capital
Markets, Inc. (each a “party”
and
together “the
parties”)
on the
Trade Date specified below (the “Transaction”)
pursuant to the pooling and servicing agreement (the “Pooling
and Servicing Agreement”),
dated
as of April 1, 2007, among Greenwich Capital Acceptance, Inc., as depositor,
Greenwich Capital Financial Products, Inc., as seller, Xxxxxxx Fixed Income
Services, as credit risk manager, and Xxxxx Fargo Bank, N.A., as trustee.
This
letter agreement constitutes a “Confirmation”,
as
referred to in the Master Agreement.
The
definitions and provisions contained in the 2000 ISDA Definitions (the
“Definitions”)
as
published by the International Swaps and Derivatives Association, Inc. are
incorporated by reference herein. In the event of any inconsistency between
the
Definitions and this Confirmation, this Confirmation will govern.
Page
1 of
8
For
the
purpose of this Confirmation, all references in the Definitions or the Agreement
to a “Swap Transaction” shall be deemed to be references to this
Transaction.
1
|
This
Confirmation supplements, forms part of, and is subject to, ISDA
Master
Agreement and Schedule dated as of April 27, 2007 (as the same
may be
amended or supplemented from time to time, the “Agreement”),
between Party A and Party B. All provisions contained in the Agreement
shall govern this Confirmation except as expressly modified
below.
|
2
|
The
terms of the particular Transaction to which this Confirmation
relates are
as follows:
|
Notional
Amount:
|
With
respect to any Calculation Period, the lesser of (i) the amount
set forth
for such period on Schedule I attached hereto and (ii) (a) the
aggregate
class principal balance of the Senior Certificates and the Subordinate
Certificates (together, the “Certificates”)
on the day immediately preceding the related Distribution Date
which
occurs in the calendar month of the Floating Rate Payer Payment
Date for
such Calculation Period (determined for this purpose without regard
to any
adjustment of the Floating Rate Payer Payment Date or Distribution
Date
relating to business days) (the “Relevant
Balance”)
divided by (b) 250.
The
Yield Maintenance Administrator shall make available each month
on its
website a statement containing the Relevant Balance at least five
(5)
Business Days prior to the related Floating Rate Payer Payment
Date, and
Party A shall be entitled to rely conclusively upon such statement.
The
Yield Maintenance Administrator’s internet website is located at
xxx.xxxxxxx.xxx and assistance in using the website can be obtained
by
calling (000) 000-0000.
Any
payment by Party A to Party B in excess of the amount due under
this
Transaction on any Floating Rate Payer Payment Date (as a result
of the
Notional Amount for the related Calculation Period being other
than the
amount set forth in Schedule I hereto for such Calculation Period)
shall
be returned by Party B to Party A as soon as Party B becomes aware
of such
overpayment. Other than the return of such overpayment, neither
Party B
nor Party A shall incur any penalty or liability hereunder with
respect to
such overpayment.
|
Trade
Date:
|
April
25, 2007
|
Effective
Date:
|
August
19, 2009
|
Termination
Date:
|
April
19, 2017, subject to adjustment in accordance with the Following
Business
Day Convention.
|
Fixed
Amounts:
|
|
Fixed
Rate Payer:
|
Party
B
|
Fixed
Rate Payer Payment Date:
|
April
27, 2007
|
Page
2 of
8
Fixed
Amount:
|
USD
2,048,000, to be paid by Greenwich Capital Financial Products,
Inc. on
behalf of Party B.
|
Floating
Amounts:
|
|
Floating
Rate Payer:
|
Party
A
|
Cap
Rate:
|
For
each Floating Payer Period End Date the percentage set forth in
Schedule
I
as the Cap Rate for such Floating Rate Payer Period End
Date.
|
Cap
Ceiling:
|
For
each Floating Payer Period End Date the percentage set forth in
Schedule
I
as the Cap Ceiling for such Floating Rate Payer Period End
Date.
|
Floating
Rate Payer Period End Dates:
|
The
19th day of each month of each year commencing September 19, 2009,
through
and including the Termination Date, subject to adjustment in accordance
with the Following Business Day Convention.
|
Floating
Rate Payer Payment Dates:
|
Early
Payment shall be applicable. The Floating Rate Payer Payment Dates
shall
be one (1) Business Day prior to each Floating Rate Payer Period
End
Date.
|
Floating
Amount
|
To
be determined in accordance with the following formula:
The
greater of (i) Scale Factor* (Floating Rate Option - Cap Rate)
*Notional
Amount*Floating Rate Day Count Fraction and (ii) zero.
|
Floating
Rate Option:
|
USD-LIBOR-BBA,
provided, however, that if the Floating Rate Option for any Calculation
Period is greater than the Cap Ceiling for such Calculation Period,
then
the Floating Rate Option for such Calculation Period shall be deemed
to be
the Cap Ceiling for such Calculation Period.
|
Designated
Maturity:
|
One
month
|
Spread:
|
N/A
|
Floating
Rate Day Count Fraction:
|
Actual/360
|
Scale
Factor
|
250
|
Reset
Dates:
|
First
day of each Calculation Period
|
Business
Days for payment:
|
New
York
|
Calculation
Agent:
|
Party
A
|
3
|
Account
Details:
|
Account
for payments to Party A:
|
For
the account of:
The
Royal Bank of Scotland Financial Markets Fixed Income and Interest
Rate
Derivative Operations
London
SWIFT XXXXXX0XXXX
|
Page
3 of
8
with
JPMorgan Chase Bank New York XXXXXX00
XXX
# 000000000
Account
Number 400930153
|
|
Account
for payments to Party B:
|
Xxxxx
Fargo Bank, NA
San
Francisco, CA
ABA#
000-000-000
Acct#
0000000000
Acct
Name: SAS Clearing
FFC:
53141301
Harborview
2007-3 Yield Maintenance Account
|
4
|
Offices:
|
The
Office of Party A for this Transaction is:
|
London
|
The
Office of Party B for this Transaction is:
|
Columbia,
Maryland
|
Page
4 of
8
5
|
Agency Role of Greenwich Capital Markets, Inc. This Transaction has been entered into by Greenwich Capital Markets, Inc., as agent for The Royal Bank of Scotland plc. Greenwich Capital Markets, Inc. has not guaranteed and is not otherwise responsible for the obligations of Party A under this Transaction. |
Please
promptly confirm that the foregoing correctly sets forth the terms of the
Transaction entered into between us by executing this Confirmation and returning
it to us by facsimile to:
RBS
Financial Markets
Xxxxx
0
000
Xxxxxxxxxxx
Xxxxxx,
XX0X 0XX
Attention:
Swaps Administration
Fax:
000 0000 0000 Phone: 000 0000 0000
THE
ROYAL BANK OF SCOTLAND PLC
By:
Greenwich Capital Markets, Inc., its agent
By
/s/
Xxxxxxx
Xxxxxxx
Name:
Xxxxxxx Xxxxxxx
Title:
Vice President
Accepted
and confirmed as of the Trade Date written above:
HARBORVIEW
MORTGAGE LOAN TRUST 2007-3
By:
Xxxxx
Fargo Bank, N.A., solely in its capacity as
Yield
Maintenance Administrator on behalf of the Yield
Maintenance
Trust with respect to
HARBORVIEW
MORTGAGE LOAN TRUST 2007-3
By
/s/
Xxxxxx X.
Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President
Page
5 of
8
SCHEDULE
I
All
dates
subject to adjustment in accordance with the Following Business Day
Convention.
From
and including:
|
To
but excluding:
|
Notional
Amount (USD):
|
Cap
Rate:
|
Cap
Ceiling:
|
8/19/2009
|
9/19/2009
|
1,509,556.097760
|
8.393490
|
8.940000
|
9/19/2009
|
10/19/2009
|
1,458,255.348720
|
8.273910
|
8.940000
|
10/19/2009
|
11/19/2009
|
1,408,694.444280
|
8.149460
|
8.940000
|
11/19/2009
|
12/19/2009
|
1,360,814.461840
|
8.019980
|
8.940000
|
12/19/2009
|
1/19/2010
|
1,314,558.472320
|
7.886310
|
8.940000
|
1/19/2010
|
2/19/2010
|
1,269,871.472840
|
7.746280
|
8.940000
|
2/19/2010
|
3/19/2010
|
1,226,700.321560
|
7.601690
|
8.940000
|
3/19/2010
|
4/19/2010
|
1,184,993.674640
|
7.452860
|
8.940000
|
4/19/2010
|
5/19/2010
|
1,144,701.916040
|
7.134240
|
8.940000
|
5/19/2010
|
6/19/2010
|
1,105,777.118760
|
7.170210
|
8.940000
|
6/19/2010
|
7/19/2010
|
1,068,172.977640
|
7.200740
|
8.940000
|
7/19/2010
|
8/19/2010
|
1,031,844.754280
|
7.224760
|
8.940000
|
8/19/2010
|
9/19/2010
|
996,749.224360
|
7.385110
|
8.940000
|
9/19/2010
|
10/19/2010
|
962,844.626120
|
7.412360
|
8.940000
|
10/19/2010
|
11/19/2010
|
930,090.611240
|
7.434590
|
8.940000
|
11/19/2010
|
12/19/2010
|
898,448.196680
|
7.450770
|
8.940000
|
12/19/2010
|
1/19/2011
|
867,879.718800
|
7.460850
|
8.940000
|
1/19/2011
|
2/19/2011
|
838,348.788720
|
7.464780
|
8.940000
|
2/19/2011
|
3/19/2011
|
809,820.248920
|
7.463500
|
8.940000
|
3/19/2011
|
4/19/2011
|
782,260.132080
|
7.455970
|
8.940000
|
4/19/2011
|
5/19/2011
|
755,635.620280
|
7.448120
|
8.940000
|
5/19/2011
|
6/19/2011
|
729,915.006680
|
7.439950
|
8.940000
|
6/19/2011
|
7/19/2011
|
705,067.657480
|
7.431440
|
8.940000
|
7/19/2011
|
8/19/2011
|
681,063.975880
|
7.422570
|
8.940000
|
8/19/2011
|
9/19/2011
|
657,875.367000
|
7.413330
|
8.940000
|
9/19/2011
|
10/19/2011
|
512,261.157160
|
3.522140
|
5.34272
|
10/19/2011
|
11/19/2011
|
490,125.624920
|
3.528030
|
5.36983
|
11/19/2011
|
12/19/2011
|
467,554.995560
|
3.533230
|
5.40035
|
12/19/2011
|
1/19/2012
|
444,175.819960
|
3.537680
|
5.43561
|
1/19/2012
|
2/19/2012
|
419,007.412240
|
3.541330
|
5.47886
|
2/19/2012
|
3/19/2012
|
392,598.648520
|
3.544120
|
5.52923
|
Page
6 of
8
3/19/2012
|
4/19/2012
|
367,638.216280
|
3.546000
|
5.57902
|
4/19/2012
|
5/19/2012
|
345,450.899360
|
3.547240
|
5.62405
|
5/19/2012
|
6/19/2012
|
326,265.476000
|
3.549030
|
5.66404
|
6/19/2012
|
7/19/2012
|
309,367.202720
|
3.551760
|
5.70099
|
7/19/2012
|
8/19/2012
|
293,874.239320
|
3.555490
|
5.73745
|
8/19/2012
|
9/19/2012
|
279,344.722320
|
3.560280
|
5.77476
|
9/19/2012
|
10/19/2012
|
265,548.412640
|
3.566210
|
5.77987
|
10/19/2012
|
11/19/2012
|
252,432.850120
|
3.573350
|
5.81465
|
11/19/2012
|
12/19/2012
|
239,963.847920
|
3.581760
|
5.84726
|
12/19/2012
|
1/19/2013
|
228,109.624560
|
3.591510
|
5.88144
|
1/19/2013
|
2/19/2013
|
216,838.759000
|
3.602670
|
5.91728
|
2/19/2013
|
3/19/2013
|
206,121.963920
|
3.615310
|
5.95488
|
3/19/2013
|
4/19/2013
|
195,933.745840
|
3.629500
|
5.99434
|
4/19/2013
|
5/19/2013
|
186,248.139240
|
3.644870
|
5.29487
|
5/19/2013
|
6/19/2013
|
177,041.052440
|
3.659680
|
5.30968
|
6/19/2013
|
7/19/2013
|
168,288.869040
|
3.673430
|
5.32343
|
7/19/2013
|
8/19/2013
|
159,969.133240
|
3.686050
|
5.33605
|
8/19/2013
|
9/19/2013
|
152,060.492920
|
3.697450
|
5.34745
|
9/19/2013
|
10/19/2013
|
144,542.633840
|
3.707560
|
5.35756
|
10/19/2013
|
11/19/2013
|
137,396.189680
|
3.716310
|
5.36631
|
11/19/2013
|
12/19/2013
|
130,602.244000
|
3.723620
|
5.42362
|
12/19/2013
|
1/19/2014
|
124,143.485840
|
3.729410
|
5.42941
|
1/19/2014
|
2/19/2014
|
118,002.491640
|
3.733610
|
5.43361
|
2/19/2014
|
3/19/2014
|
112,163.217560
|
3.736140
|
5.43614
|
3/19/2014
|
4/19/2014
|
106,612.143520
|
3.736940
|
5.43694
|
4/19/2014
|
5/19/2014
|
101,335.152920
|
3.736390
|
5.43639
|
5/19/2014
|
6/19/2014
|
96,319.200680
|
3.736390
|
5.43639
|
6/19/2014
|
7/19/2014
|
91,551.381440
|
3.737480
|
5.23748
|
7/19/2014
|
8/19/2014
|
87,019.428440
|
3.739700
|
5.23970
|
8/19/2014
|
9/19/2014
|
82,711.679360
|
3.743110
|
5.24311
|
9/19/2014
|
10/19/2014
|
78,617.038920
|
3.497790
|
5.24779
|
10/19/2014
|
11/19/2014
|
74,724.926640
|
3.503780
|
5.25378
|
11/19/2014
|
12/19/2014
|
71,024.987920
|
3.511150
|
5.26115
|
Page
7 of
8
12/19/2014
|
1/19/2015
|
67,507.773840
|
3.519950
|
5.26995
|
1/19/2015
|
2/19/2015
|
64,163.733840
|
3.530250
|
5.28025
|
2/19/2015
|
3/19/2015
|
60,984.106120
|
3.542110
|
5.29211
|
3/19/2015
|
4/19/2015
|
57,961.614600
|
3.555580
|
5.30558
|
4/19/2015
|
5/19/2015
|
55,088.525440
|
3.570240
|
5.32024
|
5/19/2015
|
6/19/2015
|
52,357.736560
|
3.584160
|
5.33416
|
6/19/2015
|
7/19/2015
|
49,762.203760
|
3.596800
|
5.34680
|
7/19/2015
|
8/19/2015
|
47,295.230480
|
3.608090
|
5.35809
|
8/19/2015
|
9/19/2015
|
44,950.450680
|
3.617980
|
5.36798
|
9/19/2015
|
10/19/2015
|
42,721.808320
|
3.626410
|
5.37641
|
10/19/2015
|
11/19/2015
|
40,603.528680
|
3.633310
|
5.38331
|
11/19/2015
|
12/19/2015
|
38,589.959280
|
3.638620
|
5.38862
|
12/19/2015
|
1/19/2016
|
36,675.949760
|
3.642280
|
5.39228
|
1/19/2016
|
2/19/2016
|
34,856.297080
|
3.644240
|
5.39424
|
2/19/2016
|
3/19/2016
|
33,126.226560
|
3.644430
|
5.39443
|
3/19/2016
|
4/19/2016
|
31,481.745240
|
3.642780
|
5.39278
|
4/19/2016
|
5/19/2016
|
29,918.648360
|
3.639740
|
5.38974
|
5/19/2016
|
6/19/2016
|
28,433.054920
|
3.637230
|
5.38723
|
6/19/2016
|
7/19/2016
|
27,021.123440
|
3.635790
|
5.38579
|
7/19/2016
|
8/19/2016
|
25,679.198920
|
3.635470
|
5.38547
|
8/19/2016
|
9/19/2016
|
24,403.813680
|
3.636300
|
5.38630
|
9/19/2016
|
10/19/2016
|
23,191.668200
|
3.638340
|
5.38834
|
10/19/2016
|
11/19/2016
|
22,039.615800
|
3.641640
|
5.39164
|
11/19/2016
|
12/19/2016
|
20,944.586320
|
3.646230
|
5.39623
|
12/19/2016
|
1/19/2017
|
19,903.516680
|
3.652180
|
5.40218
|
1/19/2017
|
2/19/2017
|
18,913.712400
|
3.659520
|
5.40952
|
2/19/2017
|
3/19/2017
|
17,972.771480
|
3.668310
|
5.41831
|
3/19/2017
|
4/19/2017
|
17,078.427240
|
3.678580
|
5.42858
|
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