ISDAâ International Swaps and Derivatives Association, Inc. MASTER AGREEMENT dated as of July 31, 2007
ISDAâ
International
Swaps
and
Derivatives
Association, Inc.
MASTER
AGREEMENT
dated
as
of July
31, 2007
|
HSBC
BANK USA, NATIONAL ASSOCIATION
Party
A
|
and
|
U.S.
BANK NATIONAL ASSOCIATION,
NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE ON BEHALF OF
THE
SUPPLEMENTAL INTEREST TRUST RELATING TO THE
▇▇▇▇▇▇
XS TRUST MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES
2007-15N
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.
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.
|
HSBC
BANK USA, NATIONAL ASSOCIATION
|
U.S.
BANK NATIONAL ASSOCIATION
NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE ON BEHALF OF
THE
SUPPLEMENTAL INTEREST TRUST RELATING TO THE
▇▇▇▇▇▇
XS TRUST MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES
2007-15N
|
|
|
(Name
of Party)
|
(Name
of Party)
|
|
|
Name:
|
Name:
|
|
|
Title:
|
Title:
|
|
|
Date:
|
Date:
|
|
|
Name:
|
||
|
Title:
|
||
|
Date:
|
1
Rate
Swap Schedule
SCHEDULE
to
the
Master
Agreement
dated
as
of July
31,
2007
between
|
HSBC
BANK USA, NATIONAL ASSOCIATION
|
and
|
U.S.
BANK NATIONAL ASSOCIATION
NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE ON BEHALF OF
THE
SUPPLEMENTAL INTEREST TRUST RELATING TO THE
▇▇▇▇▇▇
XS TRUST MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES
2007-15N
|
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 not
apply to Party A or to Party B.
(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:
2
Section
5(a)(i) (Failure
to Pay or Deliver)
will
apply to Party A and Party B; provided,
however,
that
Section 5(a)(i) is hereby amended by replacing the word “third” with the word
“first.”
Section
5(a)(ii) (Breach
of Agreement)
will
apply to Party A and will not apply to Party B; except that Section 5(a)(ii)
will not apply to Party A with respect to Party A’s failure to comply with Part
5(b)(ii) or Part 5(b)(iii) herein.
Section
5(a)(iii) (Credit
Support Default)
will
apply to Party A and will not apply to Party B; except that Section 5(a)(iii)(1)
will apply in respect of Party B’s obligations under Paragraph 3(b) of any
Credit Support Document.
Section
5(a)(iv) (Misrepresentation)
will
apply to Party A and will not apply to Party B.
Section
5(a)(v) (Default
under Specified Transaction)
will
not apply to Party A or Party B.
Section
5(a)(vi) (Cross
Default)
will
not apply to Party B and will apply to Party A with a Threshold Amount equal
to
three percent of the applicable Relevant Entity’s shareholders’ equity
(excluding deposits).
“Relevant
Entity”
means Party A and any guarantor under an Eligible Guarantee in respect of
all of
Party A’s present and future obligations under this Agreement.
Section
5(a)(vii) (Bankruptcy)
will
apply to Party A and Party B; provided
that
clauses (2), (7) and (9) thereof shall not apply to Party B; provided
further
that clause (4) thereof shall not apply to Party B with respect to proceedings
or petitions instituted or presented by Party A or any Affiliate of Party
A;
provided
further
that clause (6) shall not apply to Party B to the extent that it refers to
(i)
any appointment that is contemplated or effected by the Trust Agreement (as
defined below) or (ii) any appointment to which Party B has not become subject;
and provided
further
that clause (8) shall not apply to Party B to the extent that clause (8)
relates
to clauses (2), (4), (6) and (7) (except to the extent that such provisions
are
not disapplied to Party B).
Section
5(a)(viii) (Merger
without Assumption)
will
apply to Party A and Party B.
Notwithstanding
Sections 5(a)(i) and 5(a)(iii) of this Agreement, any failure by Party A
to
comply with or perform any obligation to be complied with or performed by
Party
A under the Credit Support Document shall not be an Event of Default unless
(A)
(i) the ▇▇▇▇▇’▇
Second
Rating Trigger Requirements
apply and at
least 30 Local Business Days have elapsed since the last time the ▇▇▇▇▇’▇
Second
Rating Trigger Requirements did not apply and (ii) such
failure is not remedied on or before the third Local Business Day after notice
of such failure is given to Party A,
(B) (i) a Ratings Event has occurred and is continuing and at least 30 calendar
days have elapsed since the date a Ratings Event occurred and (ii) such failure
is not remedied on or before the third Local Business Day after notice of
such
failure is given to Party A, or (C) (i) the S&P Rating Second Trigger
Requirements apply and at least 10 Local Business Days have elapsed since
the
last time the S&P Rating Second Trigger Requirements applied and (ii) such
failure is not remedied on or before the third Local Business Day after notice
of such failure is given to Party A.
|
(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; provided
that
Section
5(b)(ii) shall be amended by deleting the
words
“(x) any action taken by a taxing authority, or brought in a court of competent
jurisdiction, on or after the date on which a Transaction is entered into
(regardless of whether such action is taken or brought with respect to a
party
to this Agreement) or (y).”
3
Section
5(b)(iii) (Tax
Event upon Merger)
will
apply to Party A and Party B; provided
that
Party A shall not be entitled to designate an Early Termination Date by reason
of a Tax Event upon Merger in respect of which it is the Affected
Party.
Section
5(b)(iv) (Credit
Event upon Merger)
will
not apply to Party A or Party B.
|
(e)
|
The
“Automatic
Early Termination”
provision of Section 6(a) of this Agreement will not apply to Party
A or
Party B.
|
|
(f)
|
The
“Transfer
to Avoid Termination Event”
provision of Section 6(b)(ii) shall be amended
by deleting the
words “or if a Tax Event upon Merger occurs and the Burdened Party is
the
Affected Party.”
|
|
(g)
|
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.
|
|
(h)
|
“Termination
Currency”
means United States Dollars.
|
(i)
Timing
of Party B Termination Payment.
If an
amount calculated as being due in respect of an Early Termination Date under
Section 6(e) of this Agreement is an amount to be paid by Party B to Party
A
then, notwithstanding the provisions of Section 6(d)(ii) of this Agreement,
such
amount will be payable on the first Distribution Date following the date
on
which the payment would have been payable as determined in accordance with
Section 6(d)(ii); provided
that if
the date on which the payment would have been payable as determined in
accordance with Section 6(d)(ii) is a Distribution Date, then the payment
will
be payable on the date determined in accordance with Section 6(d)(ii).
|
(j)
|
Additional
Termination Events.
The following Additional Termination Events will apply, in each
case with
respect to Party A as the sole Affected Party (unless otherwise
provided
below):
|
|
(i)
|
▇▇▇▇▇’▇
First Rating Trigger Collateral.
Party A has failed to comply with or perform any obligation to
be complied
with or performed by Party A in accordance with the Credit Support
Document and either (A) the ▇▇▇▇▇’▇ Second Rating Trigger Requirements do
not apply or (B) less than 30 Local Business Days have elapsed
since
the last time the ▇▇▇▇▇’▇
Second
Rating Trigger Requirements (as defined below) did not
apply.
|
|
(ii)
|
▇▇▇▇▇’▇
Second Rating Trigger Replacement.
(A) The ▇▇▇▇▇’▇ Second Rating Trigger Requirements apply and 30 or more
Local Business Days have elapsed since the last time the ▇▇▇▇▇’▇ Second
Rating Trigger Requirements did not apply and (B) (i) at least
one
Eligible Replacement has made a Firm Offer (which remains capable
of
becoming legally binding upon acceptance) to be the transferee
of a
transfer to be made in accordance with Part 5(f)(ii) below and/or
(ii) at
least one entity with the ▇▇▇▇▇’▇ First Trigger Required Ratings and/or
the ▇▇▇▇▇’▇ Second Trigger Required Ratings has made a Firm Offer (which
remains capable of becoming legally binding upon acceptance by
the
offeree) to provide an Eligible Guarantee in respect of all of
Party A’s
present and future obligations under this
Agreement.
|
4
The
“▇▇▇▇▇’▇
Second Rating Trigger Requirements”
applies
when no Relevant Entity has credit ratings at least equal to the ▇▇▇▇▇’▇ Second
Trigger Required Ratings.
“Firm
Offer”
means an
offer which, when made, was capable of becoming legally binding upon
acceptance.
|
(iii)
|
S&P
Rating Trigger Collateral.
(A) Party A fails to comply with or perform any obligation to be
complied
with or performed by Party A in accordance with the Credit Support
Document.
|
|
(iv)
|
S&P
Rating Trigger Replacement.
The S&P Rating Second Trigger Requirements apply and 60 or more
calendar days have elapsed since the last time the S&P Rating Second
Trigger Requirements did not apply.
|
|
(v)
|
Ratings
Event.
Party A fails to comply with the downgrade provisions as set forth
in Part
5(b)(iv), after giving effect to the relevant grace or cure periods
therein, and (i) at least one Eligible Replacement has made a Firm
Offer
(which remains capable of becoming legally binding upon acceptance)
to be
the transferee of a transfer to be made in accordance with Part
5(f)(ii)
below and/or (ii) at least one entity with the Hedge Counterparty
Ratings
Requirement has made a Firm Offer (which remains capable of becoming
legally binding upon acceptance by the offeree) to provide an Eligible
Guarantee in respect of all of Party A’s present and future obligations
under this Agreement.
|
|
(k)
|
The
following Additional Termination Events will apply, in each case
with
respect to Party B as the sole Affected Party (unless otherwise
provided
below):
|
|
(i)
|
Party
B or the Trust Fund (as defined in the Trust Agreement, dated as
of June
1, 2007, among Structured Asset Securities Corporation, a Delaware
corporation, as depositor, U.S. Bank National Association, as trustee
(the
“Trustee”) and Aurora Loan Services, LLC as master servicer) is
terminated.
|
|
(ii)
|
The
Trust Agreement is amended or modified without the prior written
consent
of Party A where such consent is required under the terms of the
Trust
Agreement, or such amendment; provided,
however,
that it shall not be an Additional Termination Event where such
amendment
or modification involves the appointment of any successor trustee,
master
servicer or servicer pursuant to the terms of the Trust Agreement.
|
|
(iii)
|
The
Class Principal Amounts of the rated Certificates are reduced to
zero.
|
|
(iv)
|
Notice
of the Master Servicer’s intention to exercise its option to purchase the
Mortgage Loans pursuant to Section 7.01 of the Trust Agreement
is given by
the Trustee to Certificateholders pursuant to Section 7.02 of the
Trust
Agreement, provided
that the Early Termination Date may not be earlier than the date
on which
the Certificates are redeemed pursuant to Section 7.02 of the Trust
Agreement.
|
Notwithstanding
anything in Section 6 of this
Agreement to the contrary, any amounts due as result of the occurrence of
an
Additional Termination Event described in Part 1(k)(i) and Part 1(k)(iv) of
this Schedule may be calculated prior to the Early Termination Date and shall
be
payable on the Early Termination Date.
5
Part
2
Representations.
|
(a)
|
Payer
Tax Representations.
For the purpose of Section 3(e) of this Agreement, Party A and
Party B
will make the following representations:
None.
|
|
(b)
|
Gross
Up.
Section 2(d)(i)(4) shall not apply to Party B as X, and Section
2(d)(ii)
shall not apply to Party B as Y, in each case such that Party B
shall not
be required to pay any additional amounts referred to
therein.
|
|
(c)
|
Indemnifiable
Tax.
The definition of “Indemnifiable Tax” in Section 14 is deleted in its
entirety and replaced with the
following:
|
“Indemnifiable
Tax”
means,
in relation to payments by Party A, any Tax and, in relation to payments
by
Party B, no Tax.
|
(d)
|
Payee
Representations.
For the purpose of Section 3(f) of this Agreement, Party A and
Party B
make the representations specified below, if
any:
|
|
(i)
|
Party
A makes the following
representation(s):
|
Party
A represents that is a national banking association organized under the laws
of
the United States.
|
(ii)
|
Party
B makes the following
representation(s):
|
None.
6
Part
3
Agreement
to Deliver Documents.
For
the
purpose of Sections 4(a)(i) and (ii) of this Agreement, each party agrees
to
deliver the following documents, as applicable:
|
(a)
|
Tax
forms, documents or certificates to be delivered
are:—
|
|
Party
required to deliver document
|
Form/Document/Certificate
|
Date
by which to be delivered
|
||
|
Party
A and Party B
|
Subject
to Section 4(a)(iii), any document required or reasonably requested
to
allow the other party to make payments under this Agreement without
any
deduction or withholding on account of any Tax.
|
(i)
promptly upon reasonable demand by Party B and (ii) promptly upon
learning
that any such Form previously provided by Party A has become obsolete
or
incorrect.
|
|
(b)
|
Other
documents to be delivered are:—
|
|
Party
required to deliver document
|
Form/Document/Certificate
|
Date
by which to be
delivered
|
Covered
by §3(d) Representation
|
|
Party
B
|
Certified
copy of the Board of Directors resolution (or equivalent authorizing
documentation) which sets forth the authority of each signatory
to this
Agreement and each Credit Support Document (if any) signing on
its behalf
and the authority of such party to enter into Transactions contemplated
and performance of its obligations hereunder.
|
Concurrently
with the execution and delivery of this Agreement.
|
Yes
|
|||
|
Party
A and Party B
|
Incumbency
Certificate (or, if available the current authorized signature
book or
equivalent authorizing documentation) specifying the names, titles,
authority and specimen signatures of the persons authorized to
execute
this Agreement which sets forth the specimen signatures of each
signatory
to this Agreement, each Confirmation and each Credit Support Document
(if
any) signing on its behalf.
|
Concurrently
with the execution and delivery of this Agreement unless previously
delivered and still in full force and effect.
|
Yes
|
|||
|
Party
A and Party B
|
An
executed copy of the Disclosure Agreement relating to the Preliminary
Prospectus Supplement or Free Writing Prospectus, as applicable
(each as
defined in the Trust Agreement).
|
On
the date of such Preliminary Prospectus Supplement
or
Free Writing Prospectus, as applicable.
|
Yes
|
7
|
Party
required to deliver document
|
Form/Document/Certificate
|
Date
by which to be
delivered
|
Covered
by §3(d) Representation
|
|
Party
A and B
|
An
executed copy of the Disclosure Agreement relating to the Prospectus
Supplement (as defined in the Trust Agreement).
|
On
the date of such Prospectus Supplement.
|
Yes
|
|||
|
Party
A and B
|
An
opinion of counsel to such party reasonably satisfactory in form
and
substance to the other party, and, in the case of Party B, opinions
of
counsel relating to the Trust Agreement and other deal documents
reasonably satisfactory in form and substance to Party A.
|
Concurrently
with the execution and delivery of the Confirmation unless previously
delivered and still in full force and effect.
|
No
|
|||
|
Party
A
|
A
copy of the guaranty provided by the Credit Support Provider, if
applicable.
|
Concurrently
with the execution and delivery of the Confirmation unless previously
delivered and still in full force and effect.
|
Yes
|
|||
|
Party
A
|
An
opinion of counsel to such party relating to the enforceability
of the
guaranty reasonably satisfactory in form and substance to Party
B, if
applicable.
|
Concurrently
with the execution and delivery of the Confirmation unless previously
delivered and still in full force and effect.
|
No
|
|||
|
Party
B
|
An
executed copy of the Trust Agreement and other deal documents related
to
this Transaction.
|
Within
30 days after the date of this Agreement.
|
No
|
|||
|
Party
B
|
Each
material amendment, supplement or waiver of the Trust Agreement,
as
proposed from time to time, or any other amendment or modification
of the
Trust Agreement that requires the written consent of Party A under
the
terms of the Trust Agreement.
|
Promptly
upon learning of any proposed amendment, supplement or
waiver.
|
No
|
|||
8
Part
4.
Miscellaneous.
|
(a)
|
Addresses
for Notices.
For the purposes of Section 12(a) of this
Agreement:
|
(i)
Addresses
for notices or communications to Party A: -
HSBC
Bank USA, National Association
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
Legal Department
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
|
(i)
|
Addresses
for
notices or communications to Party
B:
|
U.S.
Bank National Association
▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
Boston,
M.A. 02110
Attention:
▇▇▇▇▇ ▇. ▇'▇▇▇▇▇,
LXS
▇▇▇▇-▇▇▇
Telephone
No: (▇▇▇)
▇▇▇-▇▇▇▇
Facsimile
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 not a
Multibranch Party.
Party
B
is not a Multibranch Party.
|
(e)
|
Calculation
Agent.
The Calculation Agent is Party A.
|
|
(f)
|
Credit
Support Document.
Credit Support Document means the credit support annex entered
into
between Party A and Party B in relation to this Agreement, and
with
respect to Party A, any Eligible Guarantee, if applicable.
|
|
(g)
|
Credit
Support Provider.
Credit Support Provider means in relation to Party A, (1) Party
A in its
capacity as a party to the Credit Support Document and (2) the
guarantor
under any Eligible Guarantee, and in relation to Party B, Party
B in its
capacity as a party to the Credit Support
Document.
|
|
(h)
|
9
|
(i)
|
Netting
of Payments.
Subparagraph (ii) of Section 2(c) of this Agreement will apply
to all
Transactions (in each case starting from the date of this
Agreement).
|
|
(j)
|
“Affiliate”
will have the meaning specified in Section 14 of this Agreement,
provided
that Party B shall be deemed to have no
Affiliates.
|
|
(k)
|
Jurisdiction.
Section 13(b) is hereby amended by: (i) deleting in the second
line of
subparagraph (i) thereof the word “non-”: and (ii) deleting the final
paragraph thereof.
|
|
(l)
|
Waiver
of Jury Trial.
Each party waives, to the fullest extent permitted by applicable
law, any
right it may have to a trial by jury in respect of any suit, action
or
proceeding relating to this Agreement or any Credit Support Document.
Each
party certifies (i) that no representative, agent or attorney of
the other
party or any Credit Support Provider has represented, expressly
or
otherwise, that such other party would not, in the event of such
a suit,
action or proceeding, seek to enforce the foregoing waiver and
(ii)
acknowledges that it and the other party have been induced to enter
into
this Agreement and provide for any Credit Support Document, as
applicable,
by, among other things, the mutual waivers and certifications in
this
Section.
|
|
(m)
|
Consent
to Recording.
Each party consents to the recording of the telephone conversations
of
trading and marketing personnel of the parties and their Affiliates
in
connection with this Agreement or any potential
transaction.
|
|
(n)
|
Severability.
If any term, provision, covenant, or condition of this Agreement,
or the
application thereof to any party or circumstance, shall be held
to be
illegal, invalid or unenforceable (in whole or in part) for any
reason,
the remaining terms, provisions, covenants and conditions hereof
shall
continue in full force and effect as if this Agreement had been
executed
with the illegal, invalid or unenforceable portion eliminated,
so long as
this Agreement as so modified continues to express, without material
change, the original intentions of the parties as to the subject
matter of
this Agreement and the deletion of such portion of this Agreement
will not
substantially impair the respective benefits or expectations of
the
parties to this Agreement.
|
|
(o)
|
Single
Agreement.
Section 1(c) shall be amended by adding the words “, the credit support
annex entered into between Party A and Party B in relation to this
Agreement” after the words “Master Agreement;” provided,
that Section 5(a)(ii) shall not apply to the Credit Support
Document.
|
|
(p)
|
Local
Business Day.
The definition of Local Business Day in Section 14 of this Agreement
shall
be amended by the addition of the words “or any Credit Support Document”
after “Section 2(a)(i)” and the addition of the words “or Credit Support
Document” after “Confirmation.”
|
10
Part
5.
Other
Provisions.
|
(a)
|
Definitions.
|
This
Agreement, including each Confirmation and each Swap Transaction, is subject
to
the 2000 ISDA Definitions, as amended, supplemented, updated, and superseded
from time to time (the “Definitions”), as published by the International Swaps
and Derivatives Association, Inc. (“ISDA”) and will be governed in all respects
by the Definitions (except that references to “Swap Transactions” shall be
deemed to be references to “Transactions”). The Definitions are incorporated by
reference in, and made part of, this Agreement and each Confirmation as if
set
forth in full in this Agreement and such Confirmations. In the event of any
inconsistency between the provisions of this Agreement and the Definitions,
this
Agreement will prevail (and, in the event of any inconsistency between any
Confirmation and the Definitions, the Confirmation will control). Any reference
in a Confirmation to any Definitions which are amended or supplemented in
this
Schedule shall be deemed to be a reference to such Definitions as so amended
or
supplemented, unless the Confirmation states, by specific reference to any
such
amendment or supplement, that such amendment or supplement will not apply
in
respect of the Transaction to which such Confirmation relates.
|
(b)
|
Downgrade
Provisions.
|
|
(i)
|
▇▇▇▇▇’▇
Second Trigger Failure Condition.
So long as the ▇▇▇▇▇’▇ Second Rating Trigger Requirements apply,
Party A shall, at its own expense use commercially reasonable
efforts, as soon as reasonably practicable, to either (i) furnish
an
Eligible Guarantee of Party A’s obligations under this Agreement from a
guarantor that maintains the ▇▇▇▇▇’▇ First Trigger Required Ratings and/or
the ▇▇▇▇▇’▇ Second Trigger Required Ratings or (ii) obtain an Eligible
Replacement pursuant to Part 5(f) below that assumes the obligations
of
Party A under this Agreement (through a novation or other assignment
and assumption agreement in form and substance reasonably satisfactory
to
Party B) or replaces the outstanding Transactions hereunder with
transactions on identical terms, except that Party A shall be
replaced as counterparty.
|
|
(ii)
|
S&P
Trigger Failure Condition.
So long as the S&P Rating Second Trigger Requirements apply, Party A
shall, at its own expense, use commercially reasonable efforts,
as soon as
reasonably practicable, to either (i) upon satisfaction of the
Rating
Agency Condition, furnish an Eligible Guarantee of Party A’s obligations
under this Agreement from a guarantor that maintains the S&P Second
Trigger Required Ratings or (ii) obtain an Eligible Replacement
pursuant
to Part 5(f) below that assumes the obligations of Party A under
this
Agreement (through a novation or other assignment and assumption
agreement
in form and substance reasonably satisfactory to Party B) or replaces
the
outstanding Transactions hereunder with transactions on identical
terms,
except that Party A shall be replaced as
counterparty.
|
|
(iii)
|
Collateralization
Event.
It shall be a collateralization event (“Collateralization Event”) if the
unsecured, long-term senior debt obligations or financial strength
ratings
of the Relevant Entity are rated below “A” by Fitch, Inc. (“Fitch”). For
the avoidance of doubt, the parties hereby acknowledge and agree
that
notwithstanding the occurrence of a Collateralization Event, this
Agreement and each Transaction hereunder shall continue to be a
Swap
Agreement for purposes of the Trust Agreement. Within 30 calendar
days
from the date a Collateralization Event has occurred and so long
as such
Collateralization Event is continuing, Party A shall, at its sole
expense, either (i) post collateral in an amount required to be
posted
pursuant to terms of the Credit Support Document (such amount which
is the
greater of amounts required to be posted by ▇▇▇▇▇’▇, S&P and Fitch),
(ii)
upon satisfaction of the Rating Agency Condition (with respect
to Fitch),
furnish an Eligible Guarantee of Party A’s obligations under this
Agreement from a guarantor that satisfies the Hedge Counterparty
Ratings
Requirement or (iii) obtain
an Eligible Replacement that (x) upon satisfaction of the Rating
Agency
Condition (with respect to Fitch), assumes the obligations of Party A
under this Agreement (through an assignment and assumption agreement
in
form and substance reasonably satisfactory to Party B) or (y) having
provided prior written notice to Fitch, replaces the outstanding
Transactions hereunder with transactions on identical terms, except
that
Party A shall be replaced as counterparty; provided
that such Eligible
Replacement,
as of the date of such assumption or replacement, will not, as
a result
thereof, be required to withhold or deduct on account of tax under
the
Agreement or the new Transactions, as applicable, and such assumption
or
replacement will not lead to a Termination Event or Event of Default
occurring under the Agreement or new Transactions, as
applicable.
|
11
|
(iv)
|
Ratings
Event.
It shall be a ratings event (“Ratings Event”) if at any time after the
date hereof, the Relevant Entity shall fail to satisfy the Hedge
Counterparty Ratings Threshold. Within 30 calendar days from the
date a
Ratings Event has occurred and so long as such Ratings Event is
continuing, Party A shall, at its sole expense, (i) obtain an
Eligible Replacement that (x) upon satisfaction of the Rating Agency
Condition, assumes the obligations of Party A under this Agreement
(through an assignment and assumption agreement in form and substance
reasonably satisfactory to Party B) or (y) having provided prior
written notice to Fitch, replaces the outstanding Transactions
hereunder
with transactions on identical terms, except that Party A shall be
replaced as counterparty; provided
that such Eligible Replacement, as of the date of such assumption
or
replacement, will not, as a result thereof, be required to withhold
or
deduct on account of tax under the Agreement or the new Transactions,
as
applicable, and such assumption or replacement will not lead to
a
Termination Event or Event of Default occurring under the Agreement
or new
Transactions, as applicable, or (ii) upon satisfaction of the Rating
Agency Condition (with respect to Fitch), furnish an Eligible Guarantee
of
Party A’s obligations under this Agreement from a guarantor that satisfies
the Hedge Counterparty Ratings Requirement and
(iii) upon the occurrence of a Ratings Event, Party A shall immediately
be
required to post collateral in an amount required to be posted
pursuant to
terms of the Credit Support Document (such amount which is the
greater of
amounts required to be posted by ▇▇▇▇▇’▇, S&P and Fitch).
|
|
(v)
|
Downgrade
Definitions.
|
|
(A)
|
“Eligible
Counterparty”
means, for purposes of the Credit Support Document, a Relevant
Entity with
the S&P Second Trigger Required
Ratings.
|
|
(B)
|
“Eligible
Guarantee”
means an unconditional and irrevocable guarantee that is provided
by a
guarantor as principal debtor rather than surety and is directly
enforceable by Party B, where either (A) a law firm has given a
legal
opinion confirming that none of the guarantor’s payments to Party B under
such guarantee will be subject to withholding for Tax or (B) such
guarantee provides that, in the event that any of such guarantor’s
payments to Party B are subject to withholding for Tax, such guarantor
is
required to pay such additional amount as is necessary to ensure
that the
net amount actually received by Party B (free and clear of any
withholding
tax) will equal the full amount Party B would have received had
no such
withholding been required.
|
|
(C)
|
“Eligible
Replacement”
means a Transferee (as defined in Part 5(f)(ii) herein) (i) (A)
with the
Moody’s First Trigger Required Ratings and/or the Moody’s Second Trigger
Required Ratings or (B) whose present and future obligations owing
to
Party B are guaranteed pursuant to an Eligible Guarantee provided
by a
guarantor with the Moody’s First Trigger Required Ratings and/or the
Moody’s Second Trigger Required Ratings, (ii) with the ratings specified
in the definition of Hedge Counterparty Ratings Requirement below
and
(iii) with the S&P
Second Trigger Required Ratings.
|
12
|
(D)
|
“Financial
Institution”
means a bank, broker/dealer, structured investment vehicle, insurance
company or derivative product
company.
|
|
(E)
|
“Ineligible
Counterparty”
means, for purposes of the Credit Support Document, a Relevant
Entity not
having the S&P Second Trigger Required
Ratings.
|
|
(F)
|
“Hedge
Counterparty Ratings Threshold”
means either (i) the unsecured, senior debt obligations or financial
strength ratings of Party A (or its Credit Support Provider), are
rated at least “BBB+” by Fitch or (ii) the unsecured, short-term debt
obligations (if any) of Party A , are rated at least “F2” by Fitch.
For the avoidance of all doubts, the parties hereby acknowledge
and agree
that notwithstanding the occurrence of a Ratings Event, this Agreement
and
each Transaction hereunder shall continue to be a Swap Agreement
for
purposes of the Trust Agreement.
|
|
(G)
|
“Hedge
Counterparty Ratings Requirement”
means 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.
|
|
(H)
|
“Moody’s”
means ▇▇▇▇▇'▇ Investors Service,
Inc.
|
|
(I)
|
“Moody’s
First Trigger Required Ratings”
means with respect to an entity, either (i) where the entity is
the
subject of a Moody’s Short-term Rating, such entity’s Moody’s Short-term
Rating is “Prime-1” and the entity’s long-term, unsecured and
unsubordinated debt or counterparty obligations are rated “A2” or above by
Moody’s or (ii) where the entity is not the subject of a Moody’s
Short-term Rating, its long-term, unsecured and unsubordinated
debt or
counterparty obligations are rated “A1” or above by
Moody’s.
|
|
(J)
|
“Moody’s
Short-term Rating”
means a rating assigned by Moody’s under its short-term rating scale in
respect of an entity’s short-term, unsecured and unsubordinated debt
obligations.
|
|
(K)
|
A
“Moody’s
Second Trigger Failure Condition”
occurs at any time no Relevant Entity maintains the Moody’s Second Trigger
Required Ratings.
|
|
(L)
|
“Moody’s
Second Trigger Required Ratings”
means with respect to an entity (A) either where the entity is
the subject
of a Moody’s Short-term Rating, such entity’s Moody’s Short-term Rating is
“Prime-2” or above and its long-term, unsecured and unsubordinated debt or
counterparty obligations are rated “A3” or above by Moody’s, and (B) where
such entity is not the subject of a Moody’s Short-term Rating, if the
entity’s long-term, unsecured and unsubordinated debt or counterparty
obligations are rated “A3” or above by
Moody’s.
|
13
|
(M)
|
“Rating
Agency Condition”
shall mean first receiving prior written confirmation from S&P and
Fitch, as applicable, that their then-current ratings of the rated
Certificates will not be downgraded or withdrawn by such Rating
Agency.
|
|
(N)
|
“S&P”
means Standard & Poor’s Rating Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
|
|
(O)
|
“S&P
FI Relevant Entity”
means a Relevant Entity that meets the definition of Financial
Institution
herein.
|
|
(P)
|
“S&P
First Trigger Required Ratings”
means either (i) the unsecured, short-term debt obligations of
the
Relevant Entity are rated at least “A-1” by S&P or (ii) if the
Relevant Entity does not have a short-term rating from S&P, the
unsecured, long-term senior debt obligations of such entity are
rated at
least “A+” by S&P.
|
|
(Q)
|
“S&P
Non-FI Relevant Entity”
means a Relevant Entity that does not meet the definition of Financial
Institution herein.
|
|
(R)
|
The
“S&P
Rating First Trigger Requirements”
applies when no Relevant Entity has credit ratings at least equal
to the
S&P First Trigger Required Ratings.
|
|
(S)
|
The
“S&P
Rating Second Trigger Requirements”
applies when no Relevant Entity has credit ratings at least equal
to the
S&P Second Trigger Required
Ratings.
|
|
(T)
|
“S&P
Second Trigger Required Ratings”
means (A) with respect to an S&P Non-FI Relevant Entity, either (i)
the unsecured, short-term debt obligations of the S&P Non-FI Relevant
Entity are rated at least “A-1” by S&P or (ii) if the S&P Non-FI
Relevant Entity does not have a short-term rating from S&P, the
unsecured, long-term senior debt obligations of such entity are
rated at
least “A+” by S&P or (B) with respect to an S&P FI Relevant
Entity, either (i) the unsecured, short-term debt obligations of
the
S&P FI Relevant Entity are rated at least “A-2” by S&P or (ii) if
the S&P FI Relevant Entity does not have a short-term rating from
S&P, the unsecured, long-term senior debt obligations of such entity
are rated at least “BBB+” by
S&P.
|
|
(U)
|
An
“S&P
Trigger Failure Condition”
occurs at any time no Relevant Entity maintains the S&P Second Trigger
Required Ratings.
|
|
(c)
|
Additional
Representations.
|
Section
3(a) of this Agreement is hereby amended to include the following additional
representations after paragraph 3(a)(v):
|
(i)
|
Eligible
Contract Participant.
It is an “eligible contract participant” as defined in the U.S. Commodity
Exchange Act.
|
|
(ii)
|
Individual
Negotiation.
This Agreement and each Transaction hereunder is subject to individual
negotiation by the parties.
|
|
(iii)
|
Relationship
between Party A and Party B.
Each of Party A and Party B will be deemed to represent to the
other on
the date on which it enters into a Transaction or an amendment
thereof
that (absent a written agreement between Party A and Party B that
expressly imposes affirmative obligations to the contrary for that
Transaction):
|
14
|
(A)
|
Principal.
Party A is acting as principal and not as agent when entering into
this
Agreement and each Transaction. Party B is acting not in its individual
capacity but solely as Trustee on behalf of the Supplemental Interest
Trust.
|
|
(B)
|
Non-Reliance.
Party A is acting for its own account and it has made its own independent
decisions to enter into that Transaction and as to whether that
Transaction is appropriate or proper for it based upon its own
judgment
and upon advice from such advisors as it has deemed necessary.
Party B is
acting not in its individual capacity but solely as Trustee on
behalf of
the Supplemental Interest Trust. It is not relying on any communication
(written or oral) of the other party as investment advice or as
a
recommendation to enter into that Transaction; it being understood
that
information and explanations related to the terms and conditions
of a
Transaction shall not be considered investment advice or a recommendation
to enter into that Transaction. No communication (written or oral)
received from the other party shall be deemed to be an assurance
or
guarantee as to the expected results of that
Transaction.
|
|
(C)
|
Evaluation
and Understanding.
It is capable of evaluating and understanding (on its own behalf
or
through independent professional advice), and understands and accepts,
the
terms, conditions and risks of this Agreement and each Transaction
hereunder. It is also capable of assuming, and assumes, all financial
and
other risks of this Agreement and each Transaction
hereunder.
|
|
(D)
|
Status
of Parties.
The other party is not acting as a fiduciary or an advisor for
it in
respect of that Transaction.
|
|
(d)
|
Section
4 is hereby amended by adding the following new agreement:
|
Actions
Affecting Representations.
Party B
agrees not to take any action during the term of this Agreement or any
Transaction hereunder that renders or could render any of the representations
and warranties in this Agreement untrue, incorrect, or incomplete, and if
any
event or condition occurs that renders or could render any such representation
untrue, incorrect, or incomplete, Party B will immediately give written notice
thereof to Party A.
|
(e)
|
Section
1(c).
For purposes of Section 1(c) of the Agreement, the Transaction
evidenced
by Confirmation with Reference ID: 481973HN
dated July 31, 2007, between Party A and Party B, as amended from
time to
time, shall be the sole Transaction under the Agreement.
|
|
(f)
|
Transfer.
|
|
(i)
|
Section
7 of this Agreement shall not apply to Party A and, subject to
Section
6(b)(ii) (provided that to the extent Party A makes a transfer
pursuant to
Section 6(b)(ii) it will provide a prior written notice to the
Rating
Agencies of such transfer) and Part 5(f)(ii) below, Party A may
not
transfer (whether by way of security or otherwise) any interest
or
obligation in or under this Agreement without first satisfying
the Rating
Agency Condition and without the prior written consent of Party
B.
|
|
(ii)
|
Subject
to Part 5(o) below, Party A may (at its own cost and using commercially
reasonable efforts) transfer all or substantially all of its rights
and
obligations with respect to this Agreement to any other entity
(a
“Transferee”)
that is an Eligible Replacement through a novation or other assignment
and
assumption agreement or similar agreement in form and substance
reasonably
satisfactory to Party B; provided that (A) Party B shall determine in
its sole discretion, using commercially reasonable efforts, whether
or not
a transfer relates to all or substantially all of Party A’s rights and
obligations under this Agreement, (B) as of the date of such transfer
the
Transferee will not be required to withhold or deduct on account
of a Tax
from any payments under this Agreement unless the Transferee will
be
required to make payments of additional amounts pursuant to Section
2(d)(i)(4) of this Agreement in respect of such Tax, (C) a Termination
Event or Event of Default does not occur under this Agreement as
a result
of such transfer and (D) Party A receives confirmation from each
Rating
Agency (other than Moody’s) that transfer to the Transferee does not
violate the Rating Agency Condition. Following such transfer, all
references to Party A shall be deemed to be references to the
Transferee.
|
15
|
(iii)
|
If
an entity has made a Firm Offer (which remains capable of becoming
legally
binding upon acceptance) to be the transferee of a transfer to
be made in
accordance with Part 5(f)(ii) above, Party B shall (at Party A’s cost) at
Party A’s written request, take any reasonable steps required to be taken
by it to effect such transfer.
|
|
(iv)
|
Except
as specified otherwise in the documentation evidencing a transfer,
a
transfer of all the obligations of Party A made in compliance with
this
Part 5(f) will constitute an acceptance and assumption of such
obligations
(and any related interests so transferred) by the Transferee, a
novation
of the transferee in place of Party A with respect to such obligations
(and any related interests so transferred), and a release and discharge
by
Party B of Party A from, and an agreement by Party B not to make
any claim
for payment, liability, or otherwise against Party A with respect
to, such
obligations from and after the effective date of the
transfer.
|
|
(g)
|
Trustee
Capacity. It
is expressly understood and agreed by the parties hereto that (i)
this
Agreement is executed and delivered by U.S. Bank National Association
not
individually or personally but solely as trustee of Supplemental
Interest
Trust, relating to the ▇▇▇▇▇▇ XS Trust Mortgage Pass Through Certificates,
Series 2007-15N, 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
is made
and intended not as personal representations, undertakings and
agreements
by U.S. Bank National Association but is made and intended for
the purpose
of binding only Supplemental Interest Trust, (iii) nothing herein
contained shall be construed as creating any liability on the part
of U.S.
Bank National Association, individually or personally, to perform
any
covenant either expressed or implied contained herein, all such
liability,
if any, being expressly waived by the parties hereto and by any
Person
claiming by, through or under the parties hereto and (iv) under
no
circumstances shall U.S. Bank National Association be personally
liable
for the payment of any indebtedness or expenses of the Trust or
be liable
for the breach or failure of any obligation, representation, warranty
or
covenant made or undertaken by Supplemental Interest Trust under
this
Agreement.
|
|
(h)
|
Proceedings.
Without impairing any right afforded to it under the Trust Agreement
as a
third party beneficiary, Party A shall not institute against or
cause any
other person to institute against, or join any other person in
instituting
against the Trust Fund, 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)
|
[Reserved]
|
16
|
(j)
|
Change
of Account.
Section 2(b) of this Agreement is hereby amended by the addition
of the
words “to another account in the same legal and tax jurisdiction as the
original account” following the word “delivery” in the first line
thereof.
|
|
(k)
|
Trust
Agreement.
|
|
(i)
|
Capitalized
terms used in this Agreement that are not defined herein and are
defined
in the Trust Agreement shall have the respective meanings assigned
to them
in the Trust Agreement.
|
|
(ii)
|
Party
B will provide at least ten days’ prior written notice to Party A of any
proposed amendment or modification to the Trust
Agreement.
|
|
(l)
|
No
Set-off.
|
|
(i)
|
All
payments under this Agreement shall be made without set-off or
counterclaim, except as expressly provided for in Section 2(c),
Section 6
or Part 5(q)(vi) below and paragraphs 8(a) and 8(b) of the Credit
Support
Document.
|
|
(ii)
|
Section
6(e) shall be amended by the deletion of the following sentence:
“The
amount, if any, payable in respect of an Early Termination Date
and
determined pursuant to this Section will be subject to any
Set-off.”
|
|
(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(m) shall not constitute
an
Event of Default or a Termination Event. Each party agrees to provide
to
the other party any other notice reasonably expected to be provided
to
facilitate compliance with the terms of this Agreement and the
Credit
Support Document.
|
|
(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) other than as provided in the Disclosure
Agreements, the preparation of or passing on the disclosure and
other
information contained in any offering circular or offering document
for
the Certificates, the Trust Agreement, or any other agreements
or
documents used by Party B or any other party in connection with
the
marketing and sale of the Certificates; (vi) the ongoing operations
and
administration of Party B, including the furnishing of any information
to
Party B which is not specifically required under this Agreement
or the
Disclosure Agreements; or (vii) any other aspect of Party B’s
existence.
|
|
(o)
|
Amendments.
This Agreement will not be amended unless the Rating Agency Condition
is
satisfied. Notwithstanding
any other provision of this Agreement, this Agreement shall not
be
amended, no Early Termination Date shall be effectively designated
by
Party B, and no transfer of any rights or obligations under this
Agreement
shall be made unless each Rating Agency has been given prior written
notice of such amendment, designation or
transfer.
|
17
|
(p)
|
Non-Petition
and Limited Recourse.
The liability of Party B under this Agreement is limited in recourse
to
the assets of the Trust Fund, and to distributions of interest
proceeds
and principal proceeds thereon applied in accordance with the terms
of the
Trust Agreement. Upon application of and exhaustion of all of the
assets
of the Trust Fund (and proceeds thereof) in accordance with the
Trust
Agreement, Party A shall not be entitled to take any further steps
against
Party B to recover any sums due but still unpaid hereunder or thereunder,
all claims in respect of which shall be extinguished. Notwithstanding
the
foregoing or anything herein to the contrary, Party A shall not
be
precluded from declaring an Event of Default or from exercising
any other
right or remedy as set forth in this Agreement or the Trust
Agreement.
|
|
(q)
|
Calculations.
Notwithstanding Section 6 of this Agreement, so long as Party A
is (A) the
sole Affected Party in respect of an Additional Termination Event
or a Tax
Event Upon Merger or (B) the Defaulting Party in respect of any
Event of
Default, paragraphs (i) to (vi) below shall apply:
|
|
(i)
|
The
definition of “Market
Quotation”
shall be deleted in its entirety and replaced with the
following:
|
|
“Market
Quotation” means,
with respect to one or more Terminated Transactions, a Firm Offer
which is
(1) made by a Reference Market-maker that is an Eligible Replacement,
(2)
for an amount that would be paid to Party B (expressed as a negative
number) or by Party B (expressed as a positive number) in consideration
of
an agreement between Party B and such Reference Market-maker to
enter into
a transaction (the “Replacement Transaction”) that would have the effect
of preserving for such party the economic equivalent of any payment
or
delivery (whether the underlying obligation was absolute or contingent
and
assuming the satisfaction of each applicable condition precedent)
by the
parties under Section 2(a)(i) in respect of such Terminated Transactions
or group of Terminated Transactions that would, but for the occurrence
of
the relevant Early Termination Date, have been required after that
Date,
(3) made on the basis that Unpaid Amounts in respect of the Terminated
Transaction or group of Transactions are to be excluded but, without
limitation, any payment or delivery that would, but for the relevant
Early
Termination Date, have been required (assuming satisfaction of
each
applicable condition precedent) after that Early Termination Date
is to be
included and (4) made in respect of a Replacement Transaction with
terms
substantially the same as those of this Agreement (save for the
exclusion
of provisions relating to Transactions that are not Terminated
Transactions).
|
(ii)
The
definition of“Settlement
Amount” shall
be
deleted in its entirety and replaced with the following:
“Settlement
Amount” means,
with respect to any Early Termination Date, an amount (as determined by Party
B)
equal to the Termination Currency Equivalent of the amount (whether positive
or
negative) of any Market Quotation for the relevant Terminated Transaction
or
group of Terminated Transactions that is accepted by Party B so as to become
legally binding; provided that:
|
(A)
|
If,
on the day falling ten Local Business Days after the day on which
the
Early Termination Date is designated or such later day as Party
B may
specify in writing to Party A (but in either case no later than
the Early
Termination Date) (such day the “Latest Settlement Amount Determination
Day”), no Market Quotation for the relevant Terminated Transaction
or
group of Terminated Transactions has been accepted by Party B so
as to
become legally binding and one or more Market Quotations have been
made
and remain capable of becoming legally binding upon acceptance,
the
Settlement Amount shall equal the Termination Currency Equivalent
of the
amount (whether positive or negative) of the lowest of such Market
Quotations (for the avoidance of doubt, the lowest negative number
shall
equal the largest absolute value such that, for example, negative
3 shall
be lower than negative 2); or
|
18
|
(B)
|
If,
on the Latest Settlement Amount Determination Day, no Market Quotation
for
the relevant Terminated Transaction or group of Terminated Transactions
is
accepted by Party B so as to become legally binding and no Market
Quotations have been made and remain capable of becoming legally
binding
upon acceptance, the Settlement Amount shall equal Party B’s Loss (whether
positive or negative and without reference to any Unpaid amounts)
for the
relevant Terminated Transaction or group of Terminated
Transactions.
|
|
(iii)
|
For
the purpose of clause (4) of the definition of Market Quotation,
Party B
shall determine in its sole discretion, acting in a commercially
reasonable manner, whether a Firm Offer is made in respect of a
Replacement Transaction with commercial terms substantially the
same as
those of this Agreement (save for the exclusion of provisions relating
to
Transactions that are not Terminated Transactions); provided,
however,
that notwithstanding the provisions of this Part 5(q), nothing
in this
Agreement shall preclude Party A from obtaining Market
Quotations.
|
|
(iv)
|
At
any time on or before the Latest Settlement Amount Determination
Day at
which two or more Market Quotations remain capable of becoming
legally
binding upon acceptance, Party B shall be entitled to accept only
the
lowest of such Market Quotations.
|
|
(v)
|
If
Party B requests Party A in writing to obtain Market Quotations,
Party A
shall use its reasonable efforts to do so before the Latest Settlement
Amount Determination Day.
|
|
(vi)
|
If
the Settlement Amount is a negative number, Section 6(e)(i)(3)
of this
Agreement shall be deleted in its entirety and replaced with the
following:
|
Second
Method and Market Quotation. If
Second
Method and Market Quotation apply, (1) Party B shall pay to Party A an amount
equal to the absolute value of the Settlement Amount in respect of the
Terminated Transactions, (2) Party B shall pay to Party A the Termination
Currency Equivalent of the Unpaid Amounts owing to Party A and (3) Party
A shall
pay to Party B the Termination Currency Equivalent of the Unpaid Amounts
owing
to Party B; provided that, (i) the amounts payable under (2) and (3) shall
be
subject to netting in accordance with Section 2(c) of this Agreement and
(ii)
notwithstanding any other provision of this Agreement, any amount payable
by
Party A under (3) shall not be netted-off against any amount payable by Party
B
under (1).
[Signature
page follows]
19
IN
WITNESS WHEREOF,
the
parties have executed this document by their duly authorized officers with
effect from the date specified on the first page hereof.
|
HSBC
BANK USA, NATIONAL ASSOCIATION
|
U.S.
BANK NATIONAL ASSOCIATION
NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE ON BEHALF
OF THE
SUPPLEMENTAL INTEREST TRUST RELATING TO THE
▇▇▇▇▇▇
XS TRUST MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES
2007-15N
|
|
|
By:
Name:
Title:
|
By:
Name:
Title:
|
|
|
By:
Name:
Title:
|
By:
Name:
Title:
|
20