(MULTICURRENCY - CROSS BORDER)
ISDA(R)
International Swaps and Derivatives Association, Inc.
MASTER AGREEMENT
dated as of OCTOBER 31, 2005
SUPPLEMENTAL INTEREST TRUST,
▇▇▇▇▇▇ XS TRUST MORTGAGE PASS-
ABN AMRO BANK N.V. and THROUGH CERTIFICATES,
SERIES 2005-5N
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.
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.
SUPPLEMENTAL INTEREST TRUST, ▇▇▇▇▇▇
XS TRUST MORTGAGE PASS-THROUGH
ABN AMRO BANK N.V. CERTIFICATES,
SERIES 2005-5N
(Name of Party) (Name of Party)
By: U.S. Bank National Association,
not in its individual capacity, but
solely as Trustee
_______________________________ ____________________________________
Name: Name:
Title: Title:
Date: Date:
_______________________________
Name:
Title:
Date:
18
Execution version
(MULTICURRENCY - CROSS BORDER)
ISDA(R)
International Swaps and Derivatives Association, Inc.
SCHEDULE
to the
MASTER AGREEMENT
dated as of OCTOBER 31, 2005
between
SUPPLEMENTAL INTEREST TRUST,
▇▇▇▇▇▇ XS TRUST MORTGAGE PASS-
ABN AMRO BANK N.V. THROUGH CERTIFICATES,
and SERIES 2005-5N
("Party A") ("Party B";')
PART 1. TERMINATION PROVISIONS.
(a) "SPECIFIED ENTITY" means in relation to Party A for the purpose of:
Section 5(a)(v), not applicable
Section 5(a)(vi), not applicable
Section 5(a)(vii), not applicable
Section 5(b)(iv), not applicable
and in relation to Party B for the purpose of:
Section 5(a)(v), not applicable
Section 5(a)(vi), not applicable
Section 5(a)(vii), not applicable
Section 5(b)(iv), not applicable
(b) "SPECIFIED TRANSACTION" will have the meaning specified in Section 14
of this Agreement.
(c) CERTAIN EVENTS OF DEFAULT. The following Events of Default will apply
to the parties as specified below, and the definition of "Event of
Default" in Section 14 is deemed to be modified accordingly:
Section 5(a)(i) (Failure to Pay or Deliver) will apply to Party A and
Party B.
Section 5(a)(ii) (Breach of Agreement) will not apply to Party A or
Party B.
Section 5(a)(iii) (Credit Support Default) will not apply to Party A or
Party B.
Section 5(a)(iv) (Misrepresentation) will not apply to Party A or
Party B.
Section 5(a)(v) (Default under Specified Transaction) will not apply to
Party A or Party B.
Section 5(a)(vi) (Cross Default) will not apply to Party A or Party B.
1
Section 5(a)(vii) (Bankruptcy) will apply to Party A and Party B;
PROVIDED that clause (2) thereof shall not apply to Party B.
Section 5(a)(viii) (Merger without Assumption) will apply to Party A
and Party B.
(d) TERMINATION EVENTS. The following Termination Events will apply to the
parties as specified below:
Section 5(b)(i) (Illegality) will apply to Party A and Party B.
Section 5(b)(ii) (Tax Event) will apply to Party A and Party B.
Section 5(b)(iii) (Tax Event upon Merger) will apply to Party A and
Party B.
Section 5(b)(iv) (Credit Event upon Merger) will not apply to Party A
or Party B.
(e) The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a) of this
Agreement will not apply to Party A and will not apply to Party B.
(f) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e) of this
Agreement:
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(g) "TERMINATION CURRENCY" means United States Dollars.
(h) ADDITIONAL TERMINATION EVENTS. The following Additional Termination
Events will apply, in each case with respect to Party B as the sole
Affected Party (unless otherwise provided below):
(i) Party A fails to comply with the Downgrade Provisions as set
forth in Part 5(b), after giving effect to all grace or cure
periods therein. For all purposes of this Agreement, Party A
shall be the sole Affected Party with respect to the
occurrence of a Termination Event described in this Part
1(h)(i).
(ii) Party B or the Trust Fund (as defined in the Trust Agreement,
dated as of October 1, 2005, among U.S. Bank National
Association (the TRUSTEE), Structured Asset Securities
Corporation and Aurora Loan Services LLC (the TRUST
AGREEMENT)) is terminated.
(iii) The Trust Agreement is amended or modified without the prior
written consent of Party A, where such consent is required
under the terms of the Trust Agreement, or if such amendment
or modification adversely affects Party A's interests under
this Agreement or the ability of Party B to fully and timely
perform its obligations under this Agreement.
(iv) The Class Principal Amounts of the Offered Certificates are
reduced to zero.
(v) Notice of the Master Servicer's or, the NIMS Insurer's
intention to exercise its option to purchase the Mortgage
Loans pursuant to Section 7.01 of the Trust Agreement is given
by the Trustee to Certificateholders pursuant to Section 7.02
of the Trust Agreement, PROVIDED that the Early Termination
Date may not be earlier than the date on which the
Certificates are redeemed pursuant to Section 7.02 of the
Trust Agreement.
Notwithstanding anything in Section 6 of the Agreement to the
contrary, any amounts due as result of the occurrence of an
Additional Termination Event described in Part 1(h)(ii) and
Part 1(h)(v) of this Schedule may be calculated prior to the
Early Termination Date and shall be payable on the Early
Termination Date.
PART 2. TAX REPRESENTATIONS.
(a) PAYER REPRESENTATIONS. For the purpose of Section 3(e) of this
Agreement, Party A will make the following representation and Party B
will make the following representation:
2
It is not required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account of
any Tax from any payment (other than interest under Section 2(e),
6(d)(ii) or 6(e) of this Agreement) to be made by it to the other party
under this Agreement. In making this representation, it may rely on (i)
the accuracy of any representations made by the other party pursuant to
Section 3(f) of this Agreement, (ii) the satisfaction of the agreement
contained in Section 4(a)(i) or 4(a)(iii) of this Agreement and the
accuracy and effectiveness of any document provided by the other party
pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement and (iii)
the satisfaction of the agreement of the other party contained in
Section 4(d) of this Agreement, provided that it shall not be a breach
of this representation where reliance is placed on clause (ii) and the
other party does not deliver a form or document under Section 4(a)(iii)
of this Agreement by reason of material prejudice to its legal or
commercial position.
(b) PAYEE REPRESENTATIONS. For the purpose of Section 3(f) of this
Agreement, Party A and Party B make the representations specified
below, if any:
(i) Party A makes the following representations:
(1) It is a resident of The Netherlands for the purpose
of the application of the existing tax treaties
between The Netherlands and those countries where
offices of Party B are located.
(2) With respect to its non-U.S. branches, it is fully
eligible for the benefits of the "Business Profits"
or "Industrial and Commercial Profits" provision, as
the case may be, the "Interest" provision or the
"Other Income" provision (if any) of the Specified
Treaty with respect to any payment described in such
provisions and received or to be received by it in
connection with this Agreement and no such payment is
attributable to a trade or business carried on by it
through a permanent establishment in the Specified
Jurisdiction. With respect to Party A, Specified
Treaty means the income tax treaty between the United
States and The Netherlands; Specified Jurisdiction
means the United States.
(3) With respect to its U.S. branches, each payment
received or to be received by it in connection with
this Agreement will be effectively connected with its
conduct of a trade or business in the United States.
(ii) Party B represents that it is a trust created under an agreement
governed by New York law.
PART 3. AGREEMENT TO DELIVER DOCUMENTS.
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver the following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are:--
PARTY REQUIRED TO
DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE DELIVERED
----------------- -------------------------------------- -----------------------------
Party A and Subject to Section 4(a)(iii), any (i) promptly upon reasonable
Party B document required or reasonably demand by the other party, and
requested to allow the other party to (ii) promptly upon learning that
make payments under this Agreement any such Form previously
without any deduction or withholding provided by such party has
on account of any Tax. become obsolete or incorrect.
3
(b) Other documents to be delivered are:--
PARTY REQUIRED TO DATE BY WHICH TO BE COVERED BY SS.3(D)
DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE DELIVERED REPRESENTATION
------------------- -------------------------------------- ---------------------- ------------------
Party A and Incumbency Certificate (or, if Concurrently with the Yes
Party B available the current authorized execution and
signature book or equivalent delivery of this
authorizing documentation) specifying Agreement unless
the names, titles, authority and previously delivered
specimen signatures of the persons and still in full
authorized to execute this Agreement force and effect.
which sets forth the specimen
signatures of each signatory to this
Agreement, each Confirmation and each
Credit Support Document (if any)
signing on its behalf.
Party A and B An opinion of counsel to such party Concurrently with the No
reasonably satisfactory in form and execution and
substance to the other party, and, in delivery of the
the case of Party B, opinions of Confirmation unless
counsel relating to the Trust previously delivered
Agreement and other deal documents and still in full
reasonably satisfactory in form and force and effect.
substance to the Party A.
Party B An executed copy of the Trust Within 30 days after No
Agreement. the date of this
Agreement.
Party B Each material amendment, supplement or Promptly upon No
waiver of the Trust Agreement, as learning of any
proposed from time to time, or any proposed amendment,
other amendment or modification of the supplement or waiver.
Trust Agreement that requires the
written consent of Party A under the
terms of the Trust Agreement.
PART 4. MISCELLANEOUS.
(a) ADDRESSES FOR NOTICES. For the purposes of Section 12(a) of this Agreement:
(i) Addresses for notices or communications to Party A: -
(1) For all purposes under this Agreement:
ABN AMRO BANK N.V., CHICAGO BRANCH
Global Documentation Unit
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Treasury Documentation
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
4
(2) With a copy to the Office through which Party A is
acting for the purposes of the relevant Transactions:
ABN AMRO BANK N.V., AMSTERDAM HEAD OFFICE
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Attention: Operations Derivatives Markets
Forex Options
Telephone: ▇▇-▇▇-▇▇▇▇▇▇▇
Telefax: ▇▇-▇▇-▇▇▇▇▇▇▇
Swaps
Telephone: ▇▇-▇▇-▇▇▇▇▇▇▇
Telefax: ▇▇-▇▇-▇▇▇▇▇▇▇
Interest Related Products
Telephone ▇▇-▇▇-▇▇▇▇▇▇▇
Telefax: ▇▇-▇▇-▇▇▇▇▇▇▇
Credit Derivatives
Telephone: ▇▇-▇▇-▇▇▇▇▇▇▇
Telefax: ▇▇-▇▇-▇▇▇▇▇▇▇
Telex: 16021 Answerback: ABAM NL
Electronic Messaging System Details: Swift ABNA NL 2A
ABN AMRO BANK N.V., CHICAGO BRANCH
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Treasury Operations
Telefax: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Electronic Messaging System Details: ABNA US 33a XXX
ABN AMRO BANK N.V., LONDON BRANCH
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: Fixed Income Derivatives
Documentation
Telex: 887366 Answerback: ABNALN G
Telefax: 44 20 7857 9428
Telephone: ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Electronic Messaging System Details: Swift ABNA ▇▇ ▇▇
5
(ii) Addresses for notices or communications to Party B:
U.S. BANK NATIONAL ASSOCIATION. ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: Structured Finance -
LXS 2005-5N
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
AURORA LOAN SERVICES LLC, AS MASTER SERVICER
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) PROCESS AGENT. For the purposes of Section 13(c) of this Agreement:
Party A appoints as its Process Agent, not applicable.
Party B appoints as its Process Agent, not applicable.
(c) OFFICES. The provisions of Section 10(a) will not apply to this
Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:
Party A is a Multibranch Party and may act through the following
Offices: Amsterdam, Chicago and London.
Party B is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent is Party A.
(f) CREDIT SUPPORT DOCUMENT. Credit Support Document means
With respect to Party A, not applicable.
With respect to Party B, the Trust Agreement.
(g) CREDIT SUPPORT PROVIDER.
Credit Support Provider means in relation to Party A, not applicable.
Credit Support Provider means in relation to Party B, not applicable.
(h) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York (without reference to
choice of law doctrine other than Sections 5-1401 and 5-1402 of the New
York General Obligations Law).
(i) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of this
Agreement will apply to all Transactions (in each case starting from
the date of this Agreement).
(j) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement, provided that Party B shall be deemed to have no Affiliates.
(k) JURISDICTION. Section 13(b) is hereby amended by: (i) deleting in the
second line of subparagraph (i) thereof the word "non-": and (ii)
deleting the final paragraph thereof.
6
(l) WAIVER OF JURY TRIAL. Each party waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury
in respect of any suit, action or proceeding relating to this Agreement
or any Credit Support Document. Each party certifies (i) that no
representative, agent or attorney of the other party or any Credit
Support Provider has represented, expressly or otherwise, that such
other party would not, in the event of such a suit, action or
proceeding, seek to enforce the foregoing waiver and (ii) acknowledges
that it and the other party have been induced to enter into this
Agreement and provide for any Credit Support Document, as applicable,
by, among other things, the mutual waivers and certifications in this
Section.
(m) CONSENT TO RECORDING. Each party consents to the recording of the
telephone conversations of trading and marketing personnel of the
parties and their Affiliates in connection with this Agreement or any
potential transaction.
(n) SEVERABILITY. If any term, provision, covenant, or condition of this
Agreement, or the application thereof to any party or circumstance,
shall be held to be illegal, invalid or unenforceable (in whole or in
part) for any reason, the remaining terms, provisions, covenants and
conditions hereof shall continue in full force and effect as if this
Agreement had been executed with the illegal, invalid or unenforceable
portion eliminated, so long as this Agreement as so modified continues
to express, without material change, the original intentions of the
parties as to the subject matter of this Agreement and the deletion of
such portion of this Agreement will not substantially impair the
respective benefits or expectations of the parties to this Agreement.
PART 5. OTHER PROVISIONS.
(a) DEFINITIONS. This Agreement, including each Confirmation and each Swap
Transaction, is subject to the 2000 ISDA Definitions, as amended,
supplemented, updated, and superseded from time to time (the
"Definitions"), as published by the International Swaps and Derivatives
Association, Inc. ("ISDA") and will be governed in all respects by the
Definitions (except that references to "Swap Transactions" shall be
deemed to be references to "Transactions"). The Definitions are
incorporated by reference in, and made part of, this Agreement and each
Confirmation as if set forth in full in this Agreement and such
Confirmations. In the event of any inconsistency between the provisions
of this Agreement and the Definitions, this Agreement will prevail
(and, in the event of any inconsistency between any Confirmation and
the Definitions, the Confirmation will control). Any reference in a
Confirmation to any Definitions which are amended or supplemented in
this Schedule shall be deemed to be a reference to such Definitions as
so amended or supplemented, unless the Confirmation states, by specific
reference to any such amendment or supplement, that such amendment or
supplement will not apply in respect of the Transaction to which such
Confirmation relates.
(b) DOWNGRADE PROVISIONS.
(1) It shall be a collateralization event ("COLLATERALIZATION
EVENT") if (A) either (i) the unsecured, long-term senior debt
obligations of Party A are rated below "A1" by ▇▇▇▇▇'▇
Investors Service, Inc. ("MOODY'S") or are rated "A1" by
Moody's and such rating is on watch for possible downgrade to
below "A1" (but only for so long as it is on watch for
possible downgrade) or (ii) the unsecured, short-term debt
obligations of Party A are rated below "P-1" by Moody's or are
rated "P-1" by Moody's and such rating is on watch for
possible downgrade to below "P-1" (but only for so long as it
is on watch for possible downgrade), (B) no short-term rating
is available from Moody's and the unsecured, long-term senior
debt obligations of Party A are rated below "Aa3" by Moody's
or are rated "Aa3" by Moody's and such rating is on watch for
possible downgrade to below "Aa3" (but only for so long as it
is on watch for possible downgrade), (C) or either (i) the
unsecured, short-term debt obligations of Party A are rated
below "A-1" by Standard & Poor's Rating Services, a division
of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P") or (ii) if Party A
does not have a short-term rating from S&P, the unsecured,
long-term senior debt obligations of Party A are rated below
"A+" by S&P, or (D) the unsecured, long-term senior debt
obligations or financial strength ratings of Party A are rated
below "A" by Fitch, Inc. ("FITCH"). For the avoidance of
doubt, the parties hereby acknowledge and agree that
7
notwithstanding the occurrence of a Collateralization Event,
this Agreement and each Transaction hereunder shall continue
to be as a Swap Agreement for purposes of the Trust Agreement.
Within 30 days from the date a Collateralization Event has
occurred and so long as such Collateralization Event is
continuing, Party A shall, at its sole expense, either (i)
post collateral according to the terms of an ISDA 1994 New
York Law Credit Support Annex, which shall receive prior
written confirmation from each of the Rating Agencies (as
defined in the Trust Agreement) that their then-current
ratings of the Offered Certificates will not be downgraded or
withdrawn by such Rating Agency (the "RATING AGENCY
CONDITION"), or (ii) obtain a substitute counterparty that (a)
is reasonably acceptable to Party B and satisfies the Rating
Agency Condition, (b) satisfies the Hedge Counterparty Ratings
Requirement (as defined herein) and (c) assumes the
obligations of Party A under this Agreement (through an
assignment and assumption agreement in form and substance
reasonably satisfactory to Party B) or replaces the
outstanding Transactions hereunder with transactions on
identical terms, except that Party A shall be replaced as
counterparty, PROVIDED that such substitute counterparty, as
of the date of such assumption or replacement, will not, as a
result thereof, be required to withhold or deduct on account
of tax under the Agreement or the new transactions, as
applicable, and such assumption or replacement will not lead
to a termination event or event of default occurring under the
Agreement or new transactions, as applicable.
(2) It shall be a ratings event ("RATINGS EVENT") if at any time
after the date hereof Party A shall fail to satisfy the Hedge
Counterparty Ratings Threshold. HEDGE COUNTERPARTY RATINGS
THRESHOLD shall mean (A) the unsecured, long-term senior debt
obligations of Party A are rated at least "BBB-" by S&P, (B)
either (i) the unsecured, long-term senior debt obligations of
Party A are rated at least "A2" by Moody's (and such rating is
not on watch for possible downgrade to below "A2") and the
unsecured, short-term debt obligations of Party A are rated at
least "P-1" by Moody's (and such rating is not on watch for
possible downgrade to below "P-1") and (ii) if Party A does
not have a short-term rating from Moody's, the unsecured,
long-term senior debt obligations of Party A are rated at
least "A1" by Moody's, and (C) either (i) the unsecured,
senior debt obligations or financial strength ratings of Party
A , are rated at least "A" by Fitch or (ii) the unsecured,
short-term debt obligations (if any) of Party A , are rated at
least "F1" by Fitch. For the avoidance of all doubts, the
parties hereby acknowledge and agree that notwithstanding the
occurrence of a Ratings Event, this Agreement and each
Transaction hereunder shall continue to be a Swap Agreement
for purposes of the Trust Agreement. Within 30 days (or, in
the case of a failure to meet the requirements of subparagraph
(A) of the definition of "Hedge Counterparty Ratings
Threshold", within 10 business days) from the date a Ratings
Event has occurred and so long as such Ratings Event is
continuing, Party A shall, at its sole expense, (i) obtain a
substitute counterparty that (A) satisfies the Rating Agency
Condition, (B) satisfies the Hedge Counterparty Ratings
Requirement (as defined below) and (C) assumes the obligations
of Party A under this Agreement (through an assignment and
assumption agreement in form and substance reasonably
satisfactory to Party B) or replaces the outstanding
Transactions hereunder with transactions on identical terms,
except that Party A shall be replaced as counterparty,
PROVIDED that such substitute counterparty, as of the date of
such assumption or replacement, will not, as a result thereof,
be required to withhold or deduct on account of tax under the
Agreement or the new transactions, as applicable, and such
assumption or replacement will not lead to a termination event
or event of default occurring under the Agreement or new
transactions, as applicable, and (ii) on or prior to the
expiration of such period, be required to post collateral
according to the terms of an ISDA 1994 New York Law Credit
Support Annex.
8
Notwithstanding anything contained herein to the contrary, if
Party A is required to transfer its rights and obligations
under this Agreement pursuant to this Part 5(b)(2) as a result
of a rating issued by S&P, Party A shall, prior to such
transfer, be required to post collateral in accordance with
(i) the terms of an ISDA 1994 New York Law Credit Support
Annex or (ii) an agreement with Party B providing for the
posting of collateral, which agreement shall satisfy the
Rating Agency Condition and require Party A to post the
required collateral.
HEDGE COUNTERPARTY RATINGS REQUIREMENT shall mean (a) either (i) the
unsecured, short-term debt obligations of the substitute counterparty
(or its Credit Support Provider) are rated at least "A-1" by S&P or
(ii) if the substitute counterparty does not have a short-term rating
from S&P, the unsecured, long-term senior debt obligations of the
substitute counterparty (or its Credit Support Provider) are rated at
least "A+" by S&P, (b) either (i) the unsecured, long-term senior debt
obligations of such substitute counterparty (or its Credit Support
Provider) are rated at least "A1" by ▇▇▇▇▇'▇ (and if rated "A1" by
▇▇▇▇▇'▇, such rating is not on watch for possible downgrade to below
"A1") and the unsecured, short-term debt obligations of such substitute
counterparty (or its Credit Support Provider) are rated at least "P-1"
by ▇▇▇▇▇'▇ (and if rated "P-1" by ▇▇▇▇▇'▇, such rating is not on watch
for possible downgrade and remaining on watch for possible downgrade),
or (ii) if such substitute counterparty (or its Credit Support
Provider) does not have a short-term debt rating from ▇▇▇▇▇'▇, the
unsecured, long-term senior debt obligations of such substitute
counterparty (or its Credit Support Provider) are rated at least "Aa3"
by ▇▇▇▇▇'▇ (and if rated "Aa3" by ▇▇▇▇▇'▇, such rating is not on watch
for possible downgrade to below "Aa3"), and (c) either (i) the
unsecured, long-term senior debt obligations of such substitute
counterparty (or its Credit Support Provider) are rated at least "A" by
Fitch or (ii) the unsecured, short-term debt obligations of such
substitute counterparty (or its Credit Support Provider) are rated at
least "F1" by Fitch. For the purpose of this definition, no direct or
indirect recourse against one or more shareholders of the substitute
counterparty (or against any Person in control of, or controlled by, or
under common control with, any such shareholder) shall be deemed to
constitute a guarantee, security or support of the obligations of the
substitute counterparty.
(c) Section 3(a) of this Agreement is hereby amended to include the
following additional representations after paragraph 3(a)(v):
(vi) ELIGIBLE CONTRACT PARTICIPANT. It is an "eligible contract
participant" as defined in the U.S. Commodity Exchange Act.
(vii) INDIVIDUAL NEGOTIATION. This Agreement and each Transaction
hereunder is subject to individual negotiation by the parties.
(viii) RELATIONSHIP BETWEEN PARTY A AND PARTY B. Each of Party A and
Party B will be deemed to represent to the other on the date
on which it enters into a Transaction or an amendment thereof
that (absent a written agreement between Party A and Party B
that expressly imposes affirmative obligations to the contrary
for that Transaction):
(1) PRINCIPAL. It is acting as principal and not as agent
when entering into this Agreement and each
Transaction.
(2) NON-RELIANCE. It is acting for its own account and it
has made its own independent decisions to enter into
that Transaction and as to whether that Transaction
is appropriate or proper for it based upon its own
judgment and upon advice from such advisors as it has
deemed necessary. It is not relying on any
communication (written or oral) of the other party as
investment advice or as a recommendation to enter
into that Transaction; it being understood that
information and explanations related to the terms and
conditions of a Transaction shall not be considered
investment advice or a recommendation to enter into
that Transaction. No communication (written or oral)
received from the other party shall be deemed to be
an assurance or guarantee as to the expected results
of that Transaction.
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(3) EVALUATION AND UNDERSTANDING. It is capable of
evaluating and understanding (on its own behalf or
through independent professional advice), and
understands and accepts, the terms, conditions and
risks of this Agreement and each Transaction
hereunder. It is also capable of assuming, and
assumes, all financial and other risks of this
Agreement and each Transaction hereunder.
(4) STATUS OF PARTIES. The other party is not acting as a
fiduciary or an advisor for it in respect of that
Transaction.
(d) Section 4 is hereby amended by adding the following new agreement:
(f) ACTIONS AFFECTING REPRESENTATIONS. Party B agrees not to take any
action during the term of this Agreement or any Transaction hereunder
that renders or could render any of the representations and warranties
in this Agreement untrue, incorrect, or incomplete, and if any event or
condition occurs that renders or could render any such representation
untrue, incorrect, or incomplete, Party B will immediately give written
notice thereof to Party A.
(e) SECTION 1(C). For purposes of Section 1(c) of the Agreement, the
Transaction evidenced by Confirmation, dated October 28, 2005, between
Party A and Party B, as amended from time to time, shall be the sole
Transaction under the Agreement.
(f) TRANSFER. Section 7 is hereby amended to read in its entirety as
follows:
Except as stated under Section 6(b)(ii), in this Section 7, and Part
5(e) of the Schedule, 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
this Agreement or any Transaction without the prior written consent of
the other party; provided, however, that (i) Party A may make such a
transfer of this Agreement pursuant to a consolidation or amalgamation
with, or merger with or into, or transfer of substantially all of its
assets to, another entity, or an incorporation, reincorporation or
reconstitution, and (ii) Party A may transfer this Agreement to any
Person, including, without limitation, another of Party A's offices,
branches or affiliates (any such Person, office, branch or affiliate, a
"Transferee") on at least five Business Days' prior written notice to
Party B and the Trustee; provided that, with respect to clause (ii),
(A) as of the date of such transfer the Transferee will not be required
to withhold or deduct on account of a Tax from any payments under this
Agreement unless the Transferee will be required to make payments of
additional amounts pursuant to Section 2(d)(i)(4) of this Agreement in
respect of such Tax (B) a Termination Event or Event of Default does
not occur under this Agreement as a result of such transfer; (C) such
notice is accompanied by a written instrument pursuant to which the
Transferee acquires and assumes the rights and obligations of Party A
so transferred; and (D) Party A will be responsible for any costs or
expenses incurred in connection with such transfer. Party B will
execute such documentation as is reasonably deemed necessary by Party A
for the effectuation of any such transfer. Notwithstanding the
foregoing, no such transfer or assignment (including a transfer or
assignment made pursuant to Section 6(b)(ii)) shall be made unless the
transferring party obtains a written acknowledgment from each of the
Rating Agencies that, notwithstanding such transfer or assignment, the
then-current ratings of the Offered Certificates will not be reduced or
withdrawn.
Except as specified otherwise in the documentation evidencing a
transfer, a transfer of all the obligations of Party A made in
compliance with this Section 7 will constitute an acceptance and
assumption of such obligations (and any related interests so
transferred) by the Transferee, a novation of the transferee in place
of Party A with respect to such obligations (and any related interests
so transferred), and a release and discharge by Party B of Party A
from, and an agreement by Party B not to make any claim for payment,
liability, or otherwise against Party A with respect to, such
obligations from and after the effective date of the transfer.
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(g) TRUSTEE CAPACITY. It is expressly understood and agreed by the parties
hereto that (i) this Agreement is executed and delivered by the Trustee
not individually or personally but solely as trustee of Supplemental
Interest Trust, ▇▇▇▇▇▇ XS Trust Mortgage Pass-Through Certificates,
Series 2005-5N, in the exercise of the powers and authority conferred
and vested in it, (ii) each of the representations, undertakings and
agreements herein made on the part of Supplemental Interest Trust,
▇▇▇▇▇▇ XS Trust Mortgage Pass-Through Certificates, Series 2005-5N is
made and intended not as personal representations, undertakings and
agreements by the Trustee but is made and intended for the purpose of
binding only Supplemental Interest Trust, ▇▇▇▇▇▇ XS Trust Mortgage
Pass-Through Certificates, Series 2005-5N, (iii) nothing herein
contained shall be construed as creating any liability on the part of
the Trustee, individually or personally, to perform any covenant either
expressed or implied contained herein, all such liability, if any,
being expressly waived by the parties hereto and by any Person claiming
by, through or under the parties hereto and (iv) under no circumstances
shall the Trustee 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 Supplemental Interest Trust, ▇▇▇▇▇▇ XS Trust Mortgage
Pass-Through Certificates, Series 2005-5N under this Agreement or any
other related documents.
(h) PROCEEDINGS. Without impairing any right afforded to it under the Trust
Agreement as a third party beneficiary, Party A shall not institute
against or cause any other person to institute against, or join any
other person in instituting against ▇▇▇▇▇▇ XS Trust Mortgage
Pass-Through Certificates, Series 2005-5N any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or
other proceedings under any federal or state bankruptcy, dissolution or
similar law, for a period of one year and one day following
indefeasible payment in full of the Certificates. Nothing shall
preclude, or be deemed to stop, Party A (i) from taking any action
prior to the expiration of the aforementioned one year and one day
period, or if longer the applicable preference period then in effect,
in (A) any case or proceeding voluntarily filed or commenced by Party B
or (B) any involuntary insolvency proceeding filed or commenced by a
Person other than Party A, or (ii) from commencing against Party B or
any of the Collateral any legal action which is not a bankruptcy,
reorganization, arrangement, insolvency, moratorium, liquidation or
similar proceeding.
(i) AMENDMENT TO EVENTS OF DEFAULT. The "Failure to Pay or Deliver"
provision in Section 5(a)(i) of the Agreement is hereby amended by
deleting the word "third" in the third line thereof and inserting the
word "first" in place thereof.
(j) CHANGE OF ACCOUNT. Section 2(b) of this Agreement is hereby amended by
the addition of the following after the word "delivery" in the first
line thereof:-
"to another account in the same legal and tax jurisdiction as the
original account"
(k) TRUST AGREEMENT.
(1) Capitalized terms used in this Agreement that are not defined
herein and are defined in the Trust Agreement shall have the
respective meanings assigned to them in the Trust Agreement.
(2) Party B will provide at least ten days' prior written notice
to Party A of any proposed amendment or modification to the
Trust Agreement.
(l) SET-OFF. Notwithstanding any provision of this Agreement or any other
existing or future agreements, each of Party A and Party B irrevocably
waives as to itself any and all contractual rights it may have to set
off, net, recoup or otherwise withhold or suspend or condition its
payment or performance of any obligation to the other party under this
Agreement against any obligation of one party hereto to the other party
hereto arising outside of this Agreement (which Agreement includes
without limitation, the Master Agreement to which this Schedule is
attached, this Schedule and the Confirmation, and if applicable, any
Credit Support Annex hereto).
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(m) NOTICE OF CERTAIN EVENTS OR CIRCUMSTANCES. Each party agrees, upon
learning of the occurrence or existence of any event or condition that
constitutes (or that with the giving of notice or passage of time or
both would constitute) an Event of Default or Termination Event with
respect to such party, promptly to give the other party notice of such
event or condition (or, in lieu of giving notice of such event or
condition in the case of an event or condition that with the giving of
notice or passage of time or both would constitute an Event of Default
or Termination Event with respect to the party, to cause such event or
condition to cease to exist before becoming an Event of Default or
Termination Event); PROVIDED that failure to provide notice of such
event or condition pursuant to this Part 5(n) shall not constitute an
Event of Default or a Termination Event.
(n) REGARDING PARTY A. Party B acknowledges and agrees that Party A has had
and will have no involvement in and, accordingly Party A accepts no
responsibility for: (i) the establishment, structure, or choice of
assets of Party B; (ii) the selection of any person performing services
for or acting on behalf of Party B; (iii) the selection of Party A as
the Counterparty; (iv) the terms of the Certificates; (v) the
preparation of or passing on the disclosure and other information
contained in any offering circular for the Certificates, the Trust
Agreement, or any other agreements or documents used by Party B or any
other party in connection with the marketing and sale of the
Certificates; (vi) the ongoing operations and administration of Party
B, including the furnishing of any information to Party B which is not
specifically required under this Agreement; or (vii) any other aspect
of Party B's existence.
(o) REGARDING PARTY B. The liability of Party B under this Agreement is
limited in recourse to the assets of the Trust Fund and the
Supplemental Interest Trust (each term, as defined in the Trust
Agreement), and to distributions of interest proceeds and principal
proceeds thereon applied in accordance with the terms of the Trust
Agreement. Upon application of and exhaustion of all of the assets of
the Trust Fund and the Supplemental Interest Trust (and proceeds
thereof) in accordance with the Trust Agreement, Party A shall not be
entitled to take any further steps against Party B or recover any sums
due but still unpaid hereunder or thereunder, all claims in respect of
which shall be extinguished. Notwithstanding the foregoing or anything
herein to the contrary, Party A shall not be precluded from declaring
an Event of Default or from exercising any other right or remedy as set
forth in this Agreement or the Trust Agreement.
(p) RATING AGENCY CONDITION. This Agreement will not be amended unless the
Rating Agency Condition is satisfied.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this document by their duly
authorized officers with effect from the date so specified on the first page
hereof.
SUPPLEMENTAL INTEREST TRUST, ▇▇▇▇▇▇
XS TRUST MORTGAGE PASS-THROUGH
ABN AMRO BANK N.V. CERTIFICATES,
SERIES 2005-5N
By: U.S. Bank National Association, not
in its individual capacity, but solely
as Trustee
__________________________________ ________________________________________
Name: Name:
Title: Title:
Date: Date:
__________________________________
Name:
Title:
Date:
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