ISDAâ International Swaps and Derivatives Association, Inc. MASTER AGREEMENT dated as of September 29, 2006
(Multicurrency
- Cross Border)
ISDAâ
International
Swaps
and
Derivatives
Association, Inc.
MASTER
AGREEMENT
dated
as
of September
29, 2006
|
HSBC
BANK USA, NATIONAL ASSOCIATION
|
and
|
SUPPLEMENTAL
INTEREST TRUST, ▇▇▇▇▇▇ XS TRUST MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES
2006-15
|
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.
Each
obligation of each party under Section 2(a)(i) is subject to (1) the condition
precedent that no Event of Default or Potential Event of Default with respect
to
the other party has occurred and is continuing, (2) the condition precedent
that
no Early Termination Date in respect of the relevant Transaction has occurred
or
been effectively designated and (3) each other applicable condition precedent
specified in this Agreement.
(b) Change
of Account.
Either
party may change its account for receiving a payment or delivery by giving
notice to the other party at least five Local Business Days prior to the
scheduled date for the payment or delivery to which such change applies
unless
such other party gives timely notice of a reasonable objection to such
change.
(c) Netting.
If on
any date amounts would otherwise be payable:—
(i) in
the
same currency; and
(ii) in
respect of the same Transaction,
by
each
party to the other, then, on such date, each party’s obligation to make payment
of any such amount will be automatically satisfied and discharged and,
if the
aggregate amount that would otherwise have been payable by one party exceeds
the
aggregate amount that would otherwise have been payable by the other party,
replaced by an obligation upon the party by whom the larger aggregate amount
would have been payable to pay to the other party the excess of the larger
aggregate amount over the smaller aggregate amount.
The
parties may elect in respect of two or more Transactions that a net amount
will
be determined in respect of all amounts payable on the same date in the
same
currency in respect of such Transactions, regardless of whether such amounts
are
payable in respect of the same Transaction. The election may be made in
the
Schedule or a Confirmation by specifying that subparagraph (ii) above will
not
apply to the Transactions identified as being subject to the election,
together
with the starting date (in which case subparagraph (ii) above will not,
or will
cease to, apply to such Transactions from such date). This election may
be made
separately for different groups of Transactions and will apply separately
to
each pairing of Offices through which the parties make and receive payments
or
deliveries.
(d) Deduction
or Withholding for Tax.
(i) Gross-Up.
All
payments under this Agreement will be made without any deduction or withholding
for or on account of any Tax unless such deduction or withholding is required
by
any applicable law, as modified by the practice of any relevant governmental
revenue authority, then in effect.
If a
party is so required to deduct or withhold, then that party (“X”)
will:—
(1) promptly
notify the other party (“Y”) of such requirement;
(2) pay
to
the relevant authorities the full amount required to be deducted or withheld
(including the full amount required to be deducted or withheld from any
additional amount paid by X to Y under this Section 2(d)) promptly upon
the
earlier of determining that such deduction or withholding is required or
receiving notice that such amount has been assessed against Y;
(3) promptly
forward to Y an official receipt (or a certified copy), or other documentation
reasonably acceptable to Y, evidencing such payment to such authorities;
and if
such Tax is an Indemnifiable Tax, pay to Y, in addition to the payment
to which
Y is otherwise entitled under this Agreement, such additional amount as
is
necessary to ensure that the net amount actually received by Y (free and
clear
of Indemnifiable Taxes, whether assessed against X or Y) will equal the
full
amount Y would have received had no such deduction or withholding been
required.
However, X will not be required to pay any additional amount to Y to the
extent
that it would not be required to be paid but for:—
(A) the
failure by Y to comply with or perform any agreement contained in Section
4(a)(i),
4(a)(iii) or 4(d); or
(B) the
failure of a representation made by Y pursuant to Section 3(f) to be accurate
and true unless such failure would not have occurred but for (I) any action
taken by a taxing authority, or brought in a court of competent jurisdiction,
on
or after the date on which a Transaction is entered into (regardless of
whether
such action is taken or brought with respect to a party to this Agreement)
or
(II) a Change in Tax Law.
(ii) Liability.
If:
—
(1) X
is
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, to make any deduction or withholding in
respect
of which X would not be required to pay an additional amount to Y under
Section
2(d)(i)(4);
(2) X
does
not so deduct or withhold; and
(3) a
liability resulting from such Tax is assessed directly against X,
then,
except to the extent Y has satisfied or then satisfies the liability resulting
from such Tax, Y will promptly pay to X the amount of such liability (including
any related liability for interest, but including any related liability
for
penalties only if Y has failed to comply with or perform any agreement
contained
in Section 4(a)(i), 4(a)(iii) or 4(d)).
(e) Default
Interest; Other Amounts.
Prior
to the occurrence or effective designation of an Early Termination Date
in
respect of the relevant Transaction, a party that defaults in the performance
of
any payment obligation will, to the extent permitted by law and subject
to
Section 6(c), be required to pay interest (before as well as after judgment)
on
the overdue amount to the other party on demand in the same currency as
such
overdue amount, for the period from (and including) the original due date
for
payment to (but excluding) the date of actual payment, at the Default Rate.
Such
interest will be calculated on the basis of daily compounding and the actual
number of days elapsed. If, prior to the occurrence or effective designation
of
an Early Termination Date in respect of the relevant Transaction, a party
defaults in the performance of any obligation required to be settled by
delivery, it will compensate the other party on demand if and to the extent
provided for in the relevant Confirmation or elsewhere in this
Agreement.
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3.
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Representations
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Each
party represents to the other party (which representations will be deemed
to be
repeated by each party on each date on which a Transaction is entered into
and,
in the case of the representations in Section 3(f), at all times until
the
termination of this Agreement) that:—
(a) Basic
Representations.
(i) Status.
It is
duly organised and validly existing under the laws of the jurisdiction
of its
organisation or incorporation and, if relevant under such laws, in good
standing;
(ii) Powers.
It has
the power to execute this Agreement and any other documentation relating
to this
Agreement to which it is a party, to deliver this Agreement and any other
documentation relating to this Agreement that it is required by this Agreement
to deliver and to perform its obligations under this Agreement and any
obligations it has under any Credit Support Document to which it is a party
and
has taken all necessary action to authorise such execution, delivery and
performance;
(iii) No
Violation or Conflict.
Such
execution, delivery and performance do not violate or conflict with any
law
applicable to it, any provision of its constitutional documents, any order
or
judgment of any court or other agency of government applicable to it or
any of
its assets or any contractual restriction binding on or affecting it or
any of
its assets;
(iv) Consents.
All
governmental and other consents that are required to have been obtained
by it
with respect to this Agreement or any Credit Support Document to which
it is a
party have been obtained and are in full force and effect and all conditions
of
any such consents have been complied with; and
(v) Obligations
Binding.
Its
obligations under this Agreement and any Credit Support Document to which
it is
a party constitute its legal, valid and binding obligations, enforceable
in
accordance with their respective terms (subject to applicable bankruptcy,
reorganisation, insolvency, moratorium or similar laws affecting creditors’
rights generally and subject, as to enforceability, to equitable principles
of
general application (regardless of whether enforcement is sought in a proceeding
in equity or at law)).
(b) Absence
of Certain Events.
No
Event of Default or Potential Event of Default or, to its knowledge, Termination
Event with respect to it has occurred and is continuing and no such event
or
circumstance would occur as a result of its entering into or performing
its
obligations under this Agreement or any Credit Support Document to which
it is a
party.
(c) Absence
of Litigation.
There
is not pending or, to its knowledge, threatened against it or any of its
Affiliates any action, suit or proceeding at law or in equity or before
any
court, tribunal, governmental body, agency or official or any arbitrator
that is
likely to affect the legality, validity or enforceability against it of
this
Agreement or any Credit Support Document to which it is a party or its
ability
to perform its obligations under this Agreement or such Credit Support
Document.
(d) Accuracy
of Specified Information.
All
applicable information that is furnished in writing by or on behalf of
it to the
other party and is identified for the purpose of this Section 3(d) in the
Schedule is, as of the date of the information, true, accurate and complete
in
every material respect.
(e) Payer
Tax Representation.
Each
representation specified in the Schedule as being made by it for the purpose
of
this Section 3(e) is accurate and true.
(f) Payee
Tax Representations.
Each
representation specified in the Schedule as being made by it for the purpose
of
this Section 3(f) is accurate and true.
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4.
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Agreements
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Each
party agrees with the other that, so long as either party has or may have
any
obligation under this Agreement or under any Credit Support Document to
which it
is a party:—
(a) Furnish
Specified Information.
It will
deliver to the other party or, in certain cases under subparagraph (iii)
below,
to such government or taxing authority as the other party reasonably
directs:—
(i) any
forms, documents or certificates relating to taxation specified in the
Schedule
or any Confirmation;
(ii) any
other
documents specified in the Schedule or any Confirmation; and
(iii) upon
reasonable demand by such other party, any form or document that may be
required
or reasonably requested in writing in order to allow such other party or
its
Credit Support Provider to make a payment under this Agreement or any applicable
Credit Support Document without any deduction or withholding for or on
account
of any Tax or with such deduction or withholding at a reduced rate (so
long as
the completion, execution or submission of such form or document would
not
materially prejudice the legal or commercial position of the party in receipt
of
such demand), with any such form or document to be accurate and completed
in a
manner reasonably satisfactory to such other party and to be executed and
to be
delivered with any reasonably required certification,
in
each
case by the date specified in the Schedule or such Confirmation or, if
none is
specified, as soon as reasonably practicable.
(b) Maintain
Authorisations.
It will
use all reasonable efforts to maintain in full force and effect all consents
of
any governmental or other authority that are required to be obtained by
it with
respect to this Agreement or any Credit Support Document to which it is
a party
and will use all reasonable efforts to obtain any that may become necessary
in
the future.
(c) Comply
with Laws.
It will
comply in all material respects with all applicable laws and orders to
which it
may be subject if failure so to comply would materially impair its ability
to
perform its obligations under this Agreement or any Credit Support Document
to
which it is a party.
(d) Tax
Agreement.
It will
give notice of any failure of a representation made by it under Section
3(f) to
be accurate and true promptly upon learning of such failure.
(e) Payment
of Stamp Tax.
Subject
to Section 11, it will pay any Stamp Tax levied or imposed upon it or in
respect
of its execution or performance of this Agreement by a jurisdiction in
which it
is incorporated, organised, managed and controlled, or considered to have
its
seat, or in which a branch or office through which it is acting for the
purpose
of this Agreement is located (“Stamp Tax Jurisdiction”) and will indemnify the
other party against any Stamp Tax levied or imposed upon the other party
or in
respect of the other party’s execution or performance of this Agreement by any
such Stamp Tax Jurisdiction which is not also a Stamp Tax Jurisdiction
with
respect to the other party.
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5.
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Events
of Default and Termination
Events
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(a) Events
of Default.
The
occurrence at any time with respect to a party or, if applicable, any Credit
Support Provider of such party or any Specified Entity of such party of
any of
the following events constitutes an event of default (an “Event of Default”)
with respect to such party:—
(i) Failure
to Pay or Deliver.
Failure
by the party to make, when due, any payment under this Agreement or delivery
under Section 2(a)(i) or 2(e) required to be made by it if such failure
is not
remedied on or before the third Local Business Day after notice of such
failure
is given to the party;
(ii) Breach
of Agreement.
Failure
by the party to comply with or perform any agreement or obligation (other
than
an obligation to make any payment under this Agreement or delivery under
Section
2(a)(i)
or 2(e)
or to give notice of a Termination Event or any agreement or obligation
under
Section 4(a)(i), 4(a)(iii) or 4(d)) to be complied with or performed by
the
party in accordance with this Agreement if such failure is not remedied
on or
before the thirtieth day after notice of such failure is given to the
party;
(iii) Credit
Support Default.
(1) Failure
by the party or any Credit Support Provider of such party to comply with
or
perform any agreement or obligation to be complied with or performed by
it in
accordance with any Credit Support Document if such failure is continuing
after
any applicable grace period has elapsed;
the
expiration or termination of such Credit Support Document or the failing
or
ceasing of such Credit Support Document to be in full force and effect
for the
purpose of this Agreement (in either case other than in accordance with
its
terms) prior to the satisfaction of all obligations of such party under
each
Transaction to which such Credit Support Document relates without the written
consent of the other party; or
(2) the
party
or such Credit Support Provider disaffirms, disclaims, repudiates or rejects,
in
whole or in part, or challenges the validity of, such Credit Support
Document;
(iv) Misrepresentation.
A
representation (other than a representation under Section 3(e) or (f))
made or
repeated or deemed to have been made or repeated by the party or any Credit
Support Provider of such party in this Agreement or any Credit Support
Document
proves to have been incorrect or misleading in any material respect when
made or
repeated or deemed to have been made or repeated;
(v) Default
under Specified Transaction.
The
party, any Credit Support Provider of such party or any applicable Specified
Entity of such party (1) defaults under a Specified Transaction and, after
giving effect to any applicable notice requirement or grace period, there
occurs
a liquidation of, an acceleration of obligations under, or an early termination
of, that Specified Transaction, (2) defaults, after giving effect to any
applicable notice requirement or grace period, in making any payment or
delivery
due on the last payment, delivery or exchange date of, or any payment on
early
termination of, a Specified Transaction (or such default continues for
at least
three Local Business Days if there is no applicable notice requirement
or grace
period) or (3) disaffirms, disclaims, repudiates or rejects, in whole or
in
part, a Specified Transaction (or such action is taken by any person or
entity
appointed or empowered to operate it or act on its behalf);
(vi) Cross
Default.
If
“Cross Default” is specified in the Schedule as applying to the party, the
occurrence or existence of (1) a default, event of default or other similar
condition or event (however described) in respect of such party, any Credit
Support Provider of such party or any applicable Specified Entity of such
party
under one or more agreements or instruments relating to Specified Indebtedness
of any of them (individually or collectively) in an aggregate amount of
not less
than the applicable Threshold Amount (as specified in the Schedule) which
has
resulted in such Specified Indebtedness becoming, or becoming capable at
such
time of being declared, due and payable under such agreements or instruments,
before it would otherwise have been due and payable or (2) a default by
such
party, such Credit Support Provider or such Specified Entity (individually
or
collectively) in making one or more payments on the due date thereof in
an
aggregate amount of not less than the applicable Threshold Amount under
such
agreements or instruments (after giving effect to any applicable notice
requirement or grace period);
(vii) Bankruptcy.
The
party, any Credit Support Provider of such party or any applicable Specified
Entity of such party: —
(1) is
dissolved (other than pursuant to a consolidation, amalgamation or merger);
(2)
becomes insolvent or is unable to pay its debts or fails or admits in writing
its inability generally to pay its debts as they become due; (3) makes
a general
assignment, arrangement or composition with or for the benefit of its creditors;
(4) institutes or has instituted against it a proceeding seeking a judgment
of
insolvency or bankruptcy or any other relief under any bankruptcy or insolvency
law or other similar law affecting creditors’ rights, or a petition is presented
for its winding-up or liquidation, and, in the case of any such proceeding
or
petition instituted or presented against it, such proceeding or petition
(A)
results in a judgment of insolvency or bankruptcy or the entry of an order
for
relief or the making of an order for its winding-up or liquidation or (B)
is not
dismissed, discharged, stayed or restrained in each case within 30 days
of the
institution or presentation thereof; (5) has a resolution passed for its
winding-up, official management or liquidation (other than pursuant to
a
consolidation, amalgamation or merger); (6)
seeks or
becomes subject to the appointment of an administrator, provisional liquidator,
conservator, receiver, trustee, custodian or other similar official for
it or
for all or substantially all its assets; (7) has a secured party take possession
of all or substantially all its assets or has a distress, execution, attachment,
sequestration or other legal process levied, enforced or sued on or against
all
or substantially all its assets and such secured party maintains possession,
or
any such process is not dismissed, discharged, stayed or restrained, in
each
case within 30 days thereafter; (8) causes or is subject to any event with
respect to it which, under the applicable laws of any jurisdiction, has
an
analogous effect to any of the events specified in clauses (1) to (7)
(inclusive); or (9) takes any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the foregoing acts;
or
(viii) Merger
Without Assumption.
The
party or any Credit Support Provider of such party consolidates or amalgamates
with, or merges with or into, or transfers all or substantially all its
assets
to, another entity and, at the time of such consolidation, amalgamation,
merger
or transfer: —
(1) the
resulting, surviving or transferee entity fails to assume all the obligations
of
such party or such Credit Support Provider under this Agreement or any
Credit
Support Document to which it or its predecessor was a party by operation
of law
or pursuant to an agreement reasonably satisfactory to the other party
to this
Agreement; or
(2) the
benefits of any Credit Support Document fail to extend (without the consent
of
the other party) to the performance by such resulting, surviving or transferee
entity of its obligations under this Agreement.
(b) Termination
Events.
The
occurrence at any time with respect to a party or, if applicable, any Credit
Support Provider of such party or any Specified Entity of such party of
any
event specified below constitutes an Illegality if the event is specified
in (i)
below, a Tax Event if the event is specified in (ii) below or a Tax Event
Upon
Merger if the event is specified in (iii) below, and, if specified to be
applicable, a Credit Event
Upon
Merger if the event is specified pursuant to (iv) below or an Additional
Termination Event if the event is specified pursuant to (v) below:—
(i) Illegality.
Due to
the adoption of, or any change in, any applicable law after the date on
which a
Transaction is entered into, or due to the promulgation of, or any change
in,
the interpretation by any court, tribunal or regulatory authority with
competent
jurisdiction of any applicable law after such date, it becomes unlawful
(other
than as a result of a breach by the party of Section 4(b)) for such party
(which
will be the Affected Party): —
(1) to
perform any absolute or contingent obligation to make a payment or delivery
or
to receive a payment or delivery in respect of such Transaction or to comply
with any other material provision of this Agreement relating to such
Transaction; or
(2) to
perform, or for any Credit Support Provider of such party to perform, any
contingent or other obligation which the party (or such Credit Support
Provider)
has under any Credit Support Document relating to such Transaction;
(ii) Tax
Event.
Due to
(x) any action taken by a taxing authority, or brought in a court of competent
jurisdiction, on or after the date on which a Transaction is entered into
(regardless of whether such action is taken or brought with respect to
a party
to this Agreement) or (y) a Change in Tax Law, the party (which will be
the
Affected Party) will, or there is a substantial likelihood that it will,
on the
next succeeding Scheduled Payment Date (1) be required to pay to the other
party
an additional amount in respect of an Indemnifiable Tax under Section 2(d)(i)(4)
(except in respect of interest under Section 2(e), 6(d)(ii) or 6(e)) or
(2)
receive a payment from which an amount is required to be deducted or withheld
for or on account of a Tax (except in respect of interest under Section
2(e),
6(d)(ii)
or 6(e))
and no additional amount is required to be paid in respect of such Tax
under
Section 2(d)(i)(4)
(other
than by reason of Section 2(d)(i)(4)(A) or (B));
(iii) Tax
Event Upon Merger.
The
party (the “Burdened Party”) on the next succeeding Scheduled Payment Date will
either (1) be required to pay an additional amount in respect of an
Indemnifiable Tax under Section 2(d)(i)(4) (except in respect of interest
under
Section 2(e), 6(d)(ii) or 6(e)) or (2)
receive
a payment from which an amount has been deducted or withheld for or on
account
of any Indemnifiable Tax in respect of which the other party is not required
to
pay an additional amount (other than by reason of Section 2(d)(i)(4)(A)
or (B)),
in either case as a result of a party consolidating or amalgamating with,
or
merging with or into, or transferring all or substantially all its assets
to,
another entity (which will be the Affected Party) where such action does
not
constitute an event described in Section 5(a)(viii);
(iv) Credit
Event Upon Merger.
If
“Credit Event Upon Merger” is specified in the Schedule as applying to the
party, such party (“X”), any Credit Support Provider of X or any applicable
Specified Entity of X consolidates or amalgamates with, or merges with
or into,
or transfers all or substantially all its assets to, another entity and
such
action does not constitute an event described in Section 5(a)(viii) but
the
creditworthiness of the resulting, surviving or transferee entity is materially
weaker than that of X, such Credit Support Provider or such Specified Entity,
as
the case may be, immediately prior to such action (and, in such event,
X or its
successor or transferee, as appropriate, will be the Affected Party);
or
(v) Additional
Termination Event.
If any
“Additional Termination Event” is specified in the Schedule or any Confirmation
as applying, the occurrence of such event (and, in such event, the Affected
Party or Affected Parties shall be as specified for such Additional Termination
Event in the Schedule or such Confirmation).
(c) Event
of Default and Illegality.
If an
event or circumstance which would otherwise constitute or give rise to
an Event
of Default also constitutes an Illegality, it will be treated as an Illegality
and will not constitute an Event of Default.
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6.
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Early
Termination
|
(a) Right
to Terminate Following Event of Default.
If at
any time an Event of Default with respect to a party (the “Defaulting Party”)
has occurred and is then continuing, the other party (the “Non-defaulting
Party”)
may, by
not more than 20 days notice to the Defaulting Party specifying the relevant
Event of Default, designate a day not earlier than the day such notice
is
effective as an Early Termination Date in respect of all outstanding
Transactions. If, however, “Automatic Early Termination” is specified in the
Schedule as applying to a party, then an Early Termination Date in respect
of
all outstanding Transactions will occur immediately upon the occurrence
with
respect to such party of an Event of Default specified in Section 5(a)(vii)(1),
(3),
(5), (6) or, to the extent analogous thereto, (8), and as of the time
immediately preceding the institution of the relevant proceeding or the
presentation of the relevant petition upon the occurrence with respect
to such
party of an Event of Default specified in Section 5(a)(vii)(4) or, to the
extent
analogous thereto, (8).
(b) Right
to Terminate Following Termination Event.
(i) Notice.
If a
Termination Event occurs, an Affected Party will, promptly upon becoming
aware
of it, notify the other party, specifying the nature of that Termination
Event
and each Affected Transaction and will also give such other information
about
that Termination Event as the other party may reasonably require.
(ii) Transfer
to Avoid Termination Event.
If
either an Illegality under Section 5(b)(i)(1) or a Tax Event occurs and
there is
only one Affected Party, or if a Tax Event Upon Merger occurs and the Burdened
Party is the Affected Party, the Affected Party will, as a condition to
its
right to designate an Early Termination Date under Section 6(b)(iv), use
all
reasonable efforts (which will not require such party to incur a loss,
excluding
immaterial, incidental expenses) to transfer within 20 days after it gives
notice under Section 6(b)(i) all its rights and obligations under this
Agreement
in respect of the Affected Transactions to another of its Offices or Affiliates
so that such Termination Event ceases to exist.
If
the
Affected Party is not able to make such a transfer it will give notice
to the
other party to that effect within such 20 day period, whereupon the other
party
may effect such a transfer within 30 days after the notice is given under
Section 6(b)(i).
Any
such
transfer by a party under this Section 6(b)(ii) will be subject to and
conditional upon the prior written consent of the other party, which consent
will not be withheld if such other party’s policies in effect at such time would
permit it to enter into transactions with the transferee on the terms
proposed.
(iii) Two
Affected Parties.
If an
Illegality under Section 5(b)(i)(1) or a Tax Event occurs and there are
two
Affected Parties, each party will use all reasonable efforts to reach agreement
within 30 days after notice thereof is given under Section 6(b)(i) on action
to
avoid that Termination Event.
(iv) Right
to Terminate.
If:
—
(1) a
transfer under Section 6(b)(ii) or an agreement under Section 6(b)(iii),
as the
case may be, has not been effected with respect to all Affected Transactions
within 30 days after an Affected Party gives notice under Section 6(b)(i);
or
(2) an
Illegality under Section 5(b)(i)(2), a Credit Event Upon Merger or an Additional
Termination Event occurs, or a Tax Event Upon Merger occurs and the Burdened
Party is not the Affected Party,
either
party in the case of an Illegality, the Burdened Party in the case of a
Tax
Event Upon Merger, any Affected Party in the case of a Tax Event or an
Additional Termination Event if there is more than one Affected Party,
or the
party which is not the Affected Party in the case of a Credit Event Upon
Merger
or an Additional Termination Event if there is only one Affected Party
may, by
not more than 20 days notice to the other party and provided that the relevant
Termination Event is then continuing, designate a day not earlier than
the day
such notice is effective as an Early Termination Date in respect of all
Affected
Transactions.
(c) Effect
of Designation.
(i) If
notice
designating an Early Termination Date is given under Section 6(a) or (b),
the
Early Termination Date will occur on the date so designated, whether or
not the
relevant Event of Default or Termination Event is then continuing.
(ii) Upon
the
occurrence or effective designation of an Early Termination Date, no further
payments or deliveries under Section 2(a)(i) or 2(e) in respect of the
Terminated Transactions will be required to be made, but without prejudice
to
the other provisions of this Agreement. The amount, if any, payable in
respect
of an Early Termination Date shall be determined pursuant to Section
6(e).
(d) Calculations.
(i) Statement.
On or as soon as reasonably practicable following the occurrence of an
Early
Termination Date, each party will make the calculations on its part, if
any,
contemplated by Section 6(e) and will provide to the other party a statement
(1)
showing, in reasonable detail, such calculations (including all relevant
quotations and specifying any amount payable under Section 6(e)) and (2)
giving
details of the relevant account to which any amount payable to it is to
be paid.
In the absence of written confirmation from the source of a quotation obtained
in determining a Market Quotation, the records of the party obtaining such
quotation will be conclusive evidence of the existence and accuracy of
such
quotation.
(ii) Payment
Date. An amount calculated as being due in respect of any Early Termination
Date
under Section 6(e) will be payable on the day that notice of the amount
payable
is effective (in the case of an Early Termination Date which is designated
or
occurs as a result of an Event of Default) and on the day which is two
Local
Business Days after the day on which notice of the amount payable is effective
(in the case of an Early Termination Date which is designated as a result
of a
Termination Event).
Such
amount will be paid together with (to the extent permitted under applicable
law)
interest thereon (before as well as after judgment) in the Termination
Currency,
from (and including) the relevant Early Termination Date to (but excluding)
the
date such amount is paid, at the Applicable Rate. Such interest will be
calculated on the basis of daily compounding and the actual number of days
elapsed.
(e) Payments
on Early Termination.
If an
Early Termination Date occurs, the following provisions shall apply based
on the
parties’ election in the Schedule of a payment measure, either “Market
Quotation” or “Loss”, and a payment method, either the “First Method” or the
“Second Method”. If the parties fail to designate a payment measure or payment
method in the Schedule, it will be deemed that “Market Quotation” or the “Second
Method”, as the case may be, shall apply. The amount, if any, payable in respect
of an Early Termination Date and determined pursuant to this Section will
be
subject to any Set-off.
(i) Events
of Default.
If the
Early Termination Date results from an Event of Default: —
(1) First
Method and Market Quotation. If the First Method and Market Quotation apply,
the
Defaulting Party will pay to the Non-defaulting Party the excess, if a
positive
number, of (A) the sum of the Settlement Amount (determined by the
Non-defaulting Party) in respect of the Terminated Transactions and the
Termination Currency Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party over (B) the Termination Currency Equivalent of the
Unpaid
Amounts owing to the Defaulting Party.
(2) First
Method and Loss. If the First Method and Loss apply, the Defaulting Party
will
pay to the Non-defaulting Party, if a positive number, the Non-defaulting
Party’s Loss in respect of this Agreement.
(3) Second
Method and Market Quotation. If the Second Method and Market Quotation
apply, an
amount will be payable equal to (A) the sum of the Settlement Amount (determined
by the Non-defaulting Party) in respect of the Terminated Transactions
and the
Termination Currency Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party less (B) the Termination Currency Equivalent of the
Unpaid
Amounts owing to the Defaulting Party. If that amount is a positive number,
the
Defaulting Party will pay it to the Non-defaulting Party; if it is a negative
number, the Non-defaulting Party will pay the absolute value of that amount
to
the Defaulting Party.
(4) Second
Method and Loss. If the Second Method and Loss apply, an amount will be
payable
equal to the Non-defaulting Party’s Loss in respect of this Agreement. If that
amount is a positive number, the Defaulting Party will pay it to the
Non-defaulting Party; if it is a negative number, the Non-defaulting Party
will
pay the absolute value of that amount to the Defaulting Party.
(ii) Termination
Events.
If the
Early Termination Date results from a Termination Event: —
(1) One
Affected Party.
If
there is one Affected Party, the amount payable will be determined in accordance
with Section 6(e)(i)(3), if Market Quotation applies, or Section 6(e)(i)(4),
if
Loss applies, except that, in either case, references to the Defaulting
Party
and to the Non-defaulting Party
will be
deemed to be references to the Affected Party and the party which is not
the
Affected Party, respectively, and, if Loss applies and fewer than all the
Transactions are being terminated, Loss shall be calculated in respect
of all
Terminated Transactions.
(2) Two
Affected Parties.
If
there are two Affected Parties: —
(C) if
Market
Quotation applies, each party will determine a Settlement Amount in respect
of
the Terminated Transactions, and an amount will be payable equal to (I)
the sum
of (a) one-half of the difference between the Settlement Amount of the
party
with the higher Settlement Amount (“X”) and the Settlement Amount of the party
with the lower Settlement Amount (“Y”) and (b) the Termination Currency
Equivalent of the Unpaid Amounts owing to X less (II) the Termination Currency
Equivalent of the Unpaid Amounts owing to Y; and
(D) if
Loss
applies, each party will determine its Loss in respect of this Agreement
(or, if
fewer than all the Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable equal to one-half
of the
difference between the Loss of the party with the higher Loss (“X”) and the Loss
of the party with the lower Loss (“Y”).
If
the
amount payable is a positive number, Y will pay it to X; if it is a negative
number, X will pay the absolute value of that amount to Y.
(iii) Adjustment
for Bankruptcy.
In
circumstances where an Early Termination Date occurs because “Automatic Early
Termination” applies in respect of a party, the amount determined under this
Section 6(e) will be subject to such adjustments as are appropriate and
permitted by law to reflect any payments or deliveries made by one party
to the
other under this Agreement (and retained by such other party) during the
period
from the relevant Early Termination Date to the date for payment determined
under Section 6(d)(ii).
(iv) Pre-Estimate.
The
parties agree that if Market Quotation applies an amount recoverable under
this
Section 6(e) is a reasonable pre-estimate of loss and not a penalty. Such
amount
is payable for the loss of bargain and the loss of protection against future
risks and except as otherwise provided in this Agreement neither party
will be
entitled to recover any additional damages as a consequence of such
losses.
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7.
|
Transfer
|
Subject
to Section 6(b)(ii), neither this Agreement nor any interest or obligation
in or
under this Agreement may be transferred (whether by way of security or
otherwise) by either party without the prior written consent of the other
party,
except that: —
(a) a
party
may make such a transfer of this Agreement pursuant to a consolidation
or
amalgamation with, or merger with or into, or transfer of all or substantially
all its assets to, another entity (but without prejudice to any other right
or
remedy under this Agreement); and
(b) a
party
may make such a transfer of all or any part of its interest in any amount
payable to it from a Defaulting Party under Section 6(e). Any purported
transfer
that is not in compliance with this Section will be void.
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8.
|
Contractual
Currency
|
(a) Payment
in the Contractual Currency.
Each
payment under this Agreement will be made in the relevant currency specified
in
this Agreement for that payment (the “Contractual Currency”). To the extent
permitted by applicable law, any obligation to make payments under this
Agreement in the Contractual Currency will not be discharged or satisfied
by any
tender in any currency other than the Contractual Currency, except to the
extent
such tender results in the actual receipt by the party to which payment
is owed,
acting in a reasonable manner and in good faith in converting the currency
so
tendered into the Contractual Currency, of the full amount in the Contractual
Currency of all amounts payable in respect of this Agreement. If for any
reason
the amount in the Contractual Currency so received falls short of the amount
in
the Contractual Currency payable in respect of this Agreement, the party
required to make the payment will, to the extent permitted by applicable
law,
immediately pay such additional amount in the Contractual Currency as may
be
necessary to compensate for the shortfall. If for any reason the amount
in the
Contractual Currency so received exceeds the amount in the Contractual
Currency
payable in respect of this Agreement, the party receiving the payment will
refund promptly the amount of such excess.
(b) Judgments.
To the
extent permitted by applicable law, if any judgment or order expressed
in a
currency other than the Contractual Currency is rendered (i) for the payment
of
any amount owing in respect of this Agreement, (ii) for the payment of
any
amount relating to any early termination in respect of this Agreement or
(iii)
in respect of a judgment or order of another court for the payment of any
amount
described in (i) or (ii) above, the party seeking recovery, after recovery
in
full of the aggregate amount to which such party is entitled pursuant to
the
judgment or order, will be entitled to receive immediately from the other
party
the amount of any shortfall of the Contractual Currency received by such
party
as a consequence of sums paid in such other currency and will refund promptly
to
the other party any excess of the Contractual Currency received by such
party as
a consequence of sums paid in such other currency if such shortfall or
such
excess arises or results from any variation between the rate of exchange
at
which the Contractual Currency is converted into the currency of the judgment
or
order for the purposes of such judgment or order and the rate of exchange
at
which such party is able, acting in a reasonable manner and in good faith
in
converting the currency received into the Contractual Currency, to purchase
the
Contractual Currency with the amount of the currency of the judgment or
order
actually received by such party. The term “rate of exchange” includes, without
limitation, any premiums and costs of exchange payable in connection with
the
purchase of or conversion into the Contractual Currency.
(c) Separate
Indemnities.
To the
extent permitted by applicable law, these indemnities constitute separate
and
independent obligations from the other obligations in this Agreement, will
be
enforceable as separate and independent causes of action, will apply
notwithstanding any indulgence granted by the party to which any payment
is owed
and will not be affected by judgment being obtained or claim or proof being
made
for any other sums payable in respect of this Agreement.
(d) Evidence
of Loss.
For tbe
purpose of this Section 8, it will be sufficient for a party to demonstrate
that
it would have suffered a loss had an actual exchange or purchase been
made.
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9.
|
Miscellaneous
|
(a) Entire
Agreement.
This
Agreement constitutes the entire agreement and understanding of the parties
with
respect to its subject matter and supersedes all oral communication and
prior
writings with respect thereto.
(b) Amendments.
No
amendment, modification or waiver in respect of this Agreement will be
effective
unless in writing (including a writing evidenced by a facsimile transmission)
and executed by each of the parties or confirmed by an exchange of telexes
or
electronic messages on an electronic messaging system.
(c) Survival
of Obligations.
Without
prejudice to Sections 2(a)(iii) and 6(c)(ii), the obligations of the parties
under this Agreement will survive the termination of any
Transaction.
(d) Remedies
Cumulative.
Except
as provided in this Agreement, the rights, powers, remedies and privileges
provided in this Agreement are cumulative and not exclusive of any rights,
powers, remedies and privileges provided by law.
(e) Counterparts
and Confirmations.
(i) This
Agreement (and each amendment, modification and waiver in respect of it)
may be
executed and delivered in counterparts (including by facsimile transmission),
each of which will be deemed an original.
(ii) The
parties intend that they are legally bound by the terms of each Transaction
from
the moment they agree to those terms (whether orally or otherwise). A
Confirmation shall he entered into as soon as practicable and may he executed
and delivered in counterparts (including by facsimile transmission) or
be
created by an exchange of telexes or by an exchange of electronic messages
on an
electronic messaging system, which in each case will be sufficient for
all
purposes to evidence a binding supplement to this Agreement. The parties
will
specify therein or through another effective means that any such counterpart,
telex or electronic message constitutes a Confirmation.
(f) No
Waiver of Rights.
A
failure or delay in exercising any right, power or privilege in respect
of this
Agreement will not be presumed to operate as a waiver, and a single or
partial
exercise of any right, power or privilege will not be presumed to preclude
any
subsequent or further exercise, of that right, power or privilege or the
exercise of any other right, power or privilege.
(g) Headings.
The
headings used in this Agreement are for convenience of reference only and
are
not to affect the construction of or to be taken into consideration in
interpreting this Agreement.
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10.
|
Offices;
Multibranch Parties
|
(a) If
Section 10(a) is specified in the Schedule as applying, each party that
enters
into a Transaction through an Office other than its head or home office
represents to the other party that, notwithstanding the place of booking
office
or jurisdiction of incorporation or organisation of such party, the obligations
of such party are the same as if it had entered into the Transaction through
its
head or home office. This representation will be deemed to be repeated
by such
party on each date on which a Transaction is entered into.
(b) Neither
party may change the Office through which it makes and receives payments
or
deliveries for the purpose of a Transaction without the prior written consent
of
the other party.
(c) If
a
party is specified as a Multibranch Party in the Schedule, such Multibranch
Party may make and receive payments or deliveries under any Transaction
through
any Office listed in the Schedule, and the Office through which it makes
and
receives payments or deliveries with respect to a Transaction will be specified
in the relevant Confirmation.
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11.
|
Expenses
|
A
Defaulting Party will, on demand, indemnify and hold harmless the other
party
for and against all reasonable out-of-pocket expenses, including legal
fees and
Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or any Credit Support Document
to
which the Defaulting Party is a party or by reason of the early termination
of
any Transaction, including, but not limited to, costs of
collection.
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12.
|
Notices
|
(a) Effectiveness.
Any
notice or other communication in respect of this Agreement may be given
in any
manner set forth below (except that a notice or other communication under
Section 5 or 6 may not be given by facsimile transmission or electronic
messaging system) to the address or number or in accordance with the electronic
messaging system details provided (see the Schedule) and will be deemed
effective as indicated:—
(i) if
in
writing and delivered in person or by courier, on the date it is
delivered;
(ii) if
sent
by telex, on the date the recipient’s answerback is received;
(iii) if
sent
by facsimile transmission, on the date that transmission is received by
a
responsible employee of the recipient in legible form (it being agreed
that the
burden of proving receipt will be on the sender and will not be met by
a
transmission report generated by the sender’s facsimile machine);
(iv) if
sent
by certified or registered mail (airmail, if overseas) or the equivalent
(return
receipt requested), on the date that mail is delivered or its delivery
is
attempted; or
(v) if
sent
by electronic messaging system, on the date that electronic message is
received,
unless
the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered
(or
attempted) or received, as applicable, after the close of business on a
Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change
of Addresses.
Either
party may by notice to the other change the address, telex or facsimile
number
or electronic messaging system details at which notices or other communications
are to be given to it.
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13.
|
Governing
Law and Jurisdiction
|
(a) Governing
Law.
This
Agreement will be governed by and construed in accordance with the law
specified
in the Schedule.
(b) Jurisdiction.
With
respect to any suit, action or proceedings relating to this Agreement
(“Proceedings”), each party irrevocably:—
(i) submits
to the jurisdiction of the English courts, if this Agreement is expressed
to be
governed by English law, or to the non-exclusive jurisdiction of the courts
of
the State of New York and the United States District Court located in the
Borough of Manhattan in New York City, if this Agreement is expressed to
be
governed by the laws of the State of New York; and
(ii) waives
any objection which it may have at any time to the laying of venue of any
Proceedings brought in any such court, waives any claim that such Proceedings
have been brought in an inconvenient forum and further waives the right
to
object, with respect to such Proceedings, that such court does not have
any
jurisdiction over such party.
Nothing
in this Agreement precludes either party from bringing Proceedings in any
other
jurisdiction (outside, if this Agreement is expressed to be governed by
English
law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments ▇▇▇ ▇▇▇▇ or any modification, extension or
re-enactment thereof for the time being in force) nor will the bringing
of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) Service
of Process.
Each
party irrevocably appoints the Process Agent (if any) specified opposite
its
name in the Schedule to receive, for it and on its behalf, service of process
in
any Proceedings. If for any reason any party’s Process Agent is unable to act as
such, such party will promptly notify the other party and within 30 days
appoint
a substitute process agent acceptable to the other party. The parties
irrevocably consent to service of process given in the manner provided
for
notices in Section 12. Nothing in this Agreement will affect the right
of either
party to serve process in any other manner permitted by law.
(d) Waiver
of Immunities.
Each
party irrevocably waives, to the fullest extent permitted by applicable
law,
with respect to itself and its revenues and assets (irrespective of their
use or
intended use), all immunity on the grounds of sovereignty or other similar
grounds from (i) suit, (ii) jurisdiction of any court, (iii) relief by
way of
injunction, order for specific performance or for recovery of property,
(iv)
attachment of its assets (whether before or after judgment) and (v) execution
or
enforcement of any judgment to which it or its revenues or assets might
otherwise be entitled in any Proceedings in the courts of any jurisdiction
and
irrevocably agrees, to the extent permitted by applicable law, that it
will not
claim any such immunity in any Proceedings.
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14.
|
Definitions
|
As
used
in this Agreement:—
“Additional
Termination Event”
has
the
meaning specified in Section 5(b).
“Affected
Party”
has
the
meaning specified in Section 5(b).
“Affected
Transactions”
means
(a) with respect to any Termination Event consisting of an Illegality,
Tax Event
or Tax Event Upon Merger, all Transactions affected by the occurrence of
such
Termination Event and (b) with respect to any other Termination Event,
all
Transactions.
“Affiliate”
means,
subject to the Schedule, in relation to any person, any entity controlled,
directly or indirectly, by the person, any entity that controls, directly
or
indirectly, the person or any entity directly or indirectly under common
control
with the person. For this purpose, “control” of any entity or person means
ownership of a majority of the voting power of the entity or
person.
“Applicable
Rate”
means:—
(a) in
respect of obligations payable or deliverable (or which would have been
but for
Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in
respect of an obligation to pay an amount under Section 6(e) of either
party
from and after the date (determined in accordance with Section 6(d)(ii))
on
which that amount is payable, the Default Rate;
(c) in
respect of all other obligations payable or deliverable (or which would
have
been but for Section 2(a)(iii))
by a
Non-defaulting Party, the Non-default Rate; and
(d) in
all
other cases, the Termination Rate.
“Burdened
Party”
has
the
meaning specified in Section 5(b).
“Change
in Tax Law”
means
the enactment, promulgation, execution or ratification of, or any change
in or
amendment to, any law (or in the application or official interpretation
of any
law) that occurs on or after the date on which the relevant Transaction
is
entered into.
“consent”
includes a consent, approval, action, authorisation, exemption, notice,
filing,
registration or exchange control consent.
“Credit
Event Upon Merger”
has
the
meaning specified in Section 5(b).
“Credit
Support Document”
means
any agreement or instrument that is specified as such in this
Agreement.
“Credit
Support Provider”
has
the
meaning specified in the Schedule.
“Default
Rate”
means
a
rate per annum equal to the cost (without proof or evidence of any actual
cost)
to the relevant payee (as certified by it) if it were to fund or of funding
the
relevant amount plus 1% per annum.
“Defaulting
Party”
has
the
meaning specified in Section 6(a).
“Early
Termination Date”
means
the date determined in accordance with Section 6(a) or 6(b)(iv).
“Event
of Default”
has
the
meaning specified in Section 5(a) and, if applicable, in the
Schedule.
“Illegality”
has
the
meaning specified in Section 5(b).
“Indemnifiable
Tax”
means
any Tax other than a Tax that would not be imposed in respect of a payment
under
this Agreement but for a present or former connection between the jurisdiction
of the government or taxation authority imposing such Tax and the recipient
of
such payment or a person related to such recipient (including, without
limitation, a connection arising from such recipient or related person
being or
having been a citizen or resident of such jurisdiction, or being or having
been
organised, present or engaged in a trade or business in such jurisdiction,
or
having or having had a permanent establishment or fixed place of business
in
such jurisdiction, but excluding a connection arising solely from such
recipient
or related person having executed, delivered, performed its obligations
or
received a payment under, or enforced, this Agreement or a Credit Support
Document).
“law”
includes any treaty, law, rule or regulation (as modified, in the case
of tax
matters, by the practice of any relevant governmental revenue authority)
and
“lawful” and “unlawful” will be construed accordingly.
“Local
Business Day”
means,
subject to the Schedule, a day on which commercial banks are open for business
(including dealings in foreign exchange and foreign currency deposits)
(a) in
relation to any obligation under Section 2(a)(i), in the place(s) specified
in
the relevant Confirmation or, if not so specified, as otherwise agreed
by the
parties in writing or determined pursuant to provisions contained, or
incorporated by reference, in this Agreement, (b) in relation to any other
payment, in the place where the relevant account is located and, if different,
in the principal financial centre, if any, of the currency of such payment,
(c)
in relation to any notice or other communication, including notice contemplated
under Section 5(a)(i), in the city specified in the address for notice
provided
by the recipient and, in the case of a notice contemplated by Section 2(b),
in
the place where the relevant new account is to be located and (d) in relation
to
Section 5(a)(v)(2),
in the
relevant locations for performance with respect to such Specified
Transaction.
“Loss”
means,
with respect to this Agreement or one or more Terminated Transactions,
as the
case may be, and a party, the Termination Currency Equivalent of an amount
that
party reasonably determines in good faith to be its total losses and costs
(or
gain, in which case expressed as a negative number) in connection with
this
Agreement or that Terminated Transaction or group of Terminated Transactions,
as
the case may be, including any loss of bargain, cost of funding or, at
the
election of such party but without duplication, loss or cost incurred as
a
result of its terminating, liquidating, obtaining or reestablishing any
hedge or
related trading position (or any gain resulting from any of them). Loss
includes
losses and costs (or gains) in respect of any payment or delivery required
to
have been made (assuming satisfaction of each applicable condition precedent)
on
or before the relevant Early Termination Date and not made, except, so
as to
avoid duplication, if Section 6(e)(i)(1) or (3) or 6(e)(ii)(2)(A)
applies.
Loss does not include a party’s legal fees and out-of-pocket expenses referred
to under Section 11.
A party
will determine its Loss as of the relevant Early Termination Date, or,
if that
is not reasonably practicable, as of the earliest date thereafter as is
reasonably practicable. A party may (but need not) determine its Loss by
reference to quotations of relevant rates or prices from one or more leading
dealers in the relevant markets.
“Market
Quotation”
means,
with respect to one or more Terminated Transactions and a party making
the
determination, an amount determined on the basis of quotations from Reference
Market-makers. Each quotation will be for an amount, if any, that would
be paid
to such party (expressed as a negative number) or by such party (expressed
as a
positive number) in consideration of an agreement between such party (taking
into account any existing Credit Support Document with respect to the
obligations of such party) and the quoting Reference Market-maker to enter
into
a transaction (the “Replacement Transaction”) that would have the effect of
preserving for such party the economic equivalent of any payment or delivery
(whether the underlying obligation was absolute or contingent and assuming
the
satisfaction of each applicable condition precedent) by the parties under
Section 2(a)(i) in respect of such Terminated Transaction or group of Terminated
Transactions that would, but for the occurrence of the relevant Early
Termination Date, have 15 ISDAÒ 1992 been required after that date. For this
purpose, Unpaid Amounts in respect of the Terminated Transaction or group
of
Terminated Transactions are to be excluded but, without limitation, any
payment
or delivery that would, but for the relevant Early Termination Date, have
been
required (assuming satisfaction of each applicable condition precedent)
after
that Early Termination Date is to be included. The Replacement Transaction
would
be subject to such documentation as such party and the Reference Market-maker
may, in good faith, agree. The party making the determination (or its agent)
will request each Reference Market-maker to provide its quotation to the
extent
reasonably practicable as of the same day and time (without regard to different
time zones) on or as soon as reasonably practicable after the relevant
Early
Termination Date. The day and time as of which those quotations are to
be
obtained will be selected in good faith by the party obliged to make a
determination under Section 6(e), and, if each party is so obliged, after
consultation with the other. If more than three quotations are provided,
the
Market Quotation will be the arithmetic mean of the quotations, without
regard
to the quotations having the highest and lowest values. If exactly three
such
quotations are provided, the Market Quotation will be the quotation remaining
after disregarding the highest and lowest quotations. For this purpose,
if more
than one quotation has the same highest value or lowest value, then one
of such
quotations shall be disregarded. If fewer than three quotations are provided,
it
will be deemed that the Market Quotation in respect of such Terminated
Transaction or group of Terminated Transactions cannot be
determined.
“Non-default
Rate”
means
a
rate per annum equal to the cost (without proof or evidence of any actual
cost)
to the Non-defaulting Party (as certified by it) if it were to fund the
relevant
amount.
“Non-defaulting
Party”
has
the
meaning specified in Section 6(a).
“Office”
means
a
branch or office of a party, which may be such party’s head or home
office.
“Potential
Event of Default”
means
any event which, with the giving of notice or the lapse of time or both,
would
constitute an Event of Default.
“Reference
Market-makers”
means
four leading dealers in the relevant market selected by the party determining
a
Market Quotation in good faith (a) from among dealers of the highest credit
standing which satisfy all the criteria that such party applies generally
at the
time in deciding whether to offer or to make an extension of credit and
(b) to
the extent practicable, from among such dealers having an office in the
same
city.
“Relevant
Jurisdiction”
means,
with respect to a party, the jurisdictions (a) in which the party is
incorporated, organised, managed and controlled or considered to have its
seat,
(b) where an Office through which the party is acting for purposes of this
Agreement is located, (c) in which the party executes this Agreement and
(d) in
relation to any payment, from or through which such payment is
made.
“Scheduled
Payment Date”
means
a
date on which a payment or delivery is to be made under Section 2(a)(i)
with
respect to a Transaction.
“Set-off”
means
set-off, offset, combination of accounts, right of retention or withholding
or
similar right or requirement to which the payer of an amount under Section
6 is
entitled or subject (whether arising under this Agreement, another contract,
applicable law or otherwise) that is exercised by, or imposed on, such
payer.
“Settlement
Amount”
means,
with respect to a party and any Early Termination Date, the sum of:
—
(b)
such
party’s Loss (whether positive or negative and without reference to any Unpaid
Amounts) for each Terminated Transaction or group of Terminated Transactions
for
which a Market Quotation cannot be determined or would not (in the reasonable
belief of the party making the determination) produce a commercially reasonable
result.
“Specified
Entity”
has
the
meanings specified in the Schedule.
“Specified
Indebtedness”
means,
subject to the Schedule, any obligation (whether present or future, contingent
or otherwise, as principal or surety or otherwise) in respect of borrowed
money.
“Specified
Transaction”
means,
subject to the Schedule, (a) any transaction (including an agreement with
respect thereto) now existing or hereafter entered into between one party
to
this Agreement (or any Credit Support Provider of such party or any applicable
Specified Entity of such party) and the other party to this Agreement (or
any
Credit Support Provider of such other party or any applicable Specified
Entity
of such other party) which is a rate swap transaction, basis swap, forward
rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency
option
or any other similar transaction (including any option with respect to
any of
these transactions), (b) any combination of these transactions and (c)
any other
transaction identified as a Specified Transaction in this Agreement or
the
relevant confirmation.
“Stamp
Tax”
means
any stamp, registration, documentation or similar tax.
“Tax”
means
any present or future tax, levy, impost, duty, charge, assessment or fee
of any
nature (including interest, penalties and additions thereto) that is imposed
by
any government or other taxing authority in respect of any payment under
this
Agreement other than a stamp, registration, documentation or similar
tax.
“Tax
Event”
has
the
meaning specified in Section 5(b).
“Tax
Event Upon Merger”
has
the
meaning specified in Section 5(b).
“Terminated
Transactions”
means
with respect to any Early Termination Date (a) if resulting from a Termination
Event, all Affected Transactions and (b) if resulting from an Event of
Default,
all Transactions (in either case) in effect immediately before the effectiveness
of the notice designating that Early Termination Date (or, if “Automatic Early
Termination” applies, immediately before that Early Termination
Date).
“Termination
Currency”
has
the
meaning specified in the Schedule.
“Termination
Currency Equivalent”
means,
in respect of any amount denominated in the Termination Currency, such
Termination Currency amount and, in respect of any amount denominated in
a
currency other than the Termination Currency (the “Other Currency”), the amount
in the Termination Currency determined by the party making the relevant
determination as being required to purchase such amount of such Other Currency
as at the relevant Early Termination Date, or, if the relevant Market Quotation
or Loss (as the case may be), is determined as of a later date, that later
date,
with the Termination Currency at the rate equal to the spot exchange rate
of the
foreign exchange agent (selected as provided below) for the purchase of
such
Other Currency with the Termination Currency at or about 11:00 a.m. (in
the city
in which such foreign exchange agent is located) on such date as would
be
customary for the determination of such a rate for the purchase of such
Other
Currency for value on the relevant Early Termination Date or that later
date.
The foreign exchange agent will, if only one party is obliged to make a
determination under Section 6(e), be selected in good faith by that party
and
otherwise will be agreed by the parties.
“Termination
Event”
means
an Illegality, a Tax Event or a Tax Event Upon Merger or, if specified
to be
applicable, a Credit Event Upon Merger or an Additional Termination
Event.
“Termination
Rate”
means
a
rate per annum equal to the arithmetic mean of the cost (without proof
or
evidence of any actual cost) to each party (as certified by such party)
if it
were to fund or of funding such amounts.
“Unpaid
Amounts”
owing
to any party means, with respect to an Early Termination Date, the aggregate
of
(a)
in
respect of all Terminated Transactions, the amounts that became payable
(or that
would have become payable but for Section 2(a)(iii)) to such party under
Section
2(a)(i) on or prior to such Early Termination Date and which remain unpaid
as at
such Early Termination Date and (b) in respect of each Terminated Transaction,
for each obligation under Section 2(a)(i) which was (or would have been
but for
Section 2(a)(iii))
required
to be settled by delivery to such party on or prior to such Early Termination
Date and which has not been so settled as at such Early Termination Date,
an
amount equal to the fair market 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
|
SUPPLEMENTAL
INTEREST TRUST, ▇▇▇▇▇▇ XS TRUST MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES
2006-15
|
|
|
(Name
of Party)
|
(Name
of Party)
|
|
|
By:
LaSalle Bank National Association, not in its individual capacity,
but
solely as trustee
|
||
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
/s/
▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
Name:
▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|
|
Title:
Senior Vice President
|
Title:
Assistant Vice President
|
|
|
Date:
September 29, 2006
|
Date:
September 29, 2006
|
Execution
version
(Multicurrency
- Cross Border)
ISDA®
International
Swaps and Derivatives Association, Inc.
SCHEDULE
to
the
Master
Agreement
dated
as
of September
29, 2006
between
|
HSBC
BANK USA, NATIONAL ASSOCIATION
|
and
|
SUPPLEMENTAL
INTEREST TRUST, ▇▇▇▇▇▇ XS TRUST MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES
2006-15
|
|
(“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
September 1, 2006, among LaSalle Bank National Association
(the
Trustee),
Aurora Loan Services LLC and Structured Asset Securities
Corporation (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.
|
|
(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.
2
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:
|
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 represents that is a national banking association organized
under the
laws of the United States.
|
|
(ii)
|
Party
B represents that it is a trust created under an agreement
governed by New
York law.
|
3
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
A
|
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 B
|
An
executed copy of the Disclosure Agreement relating to the
Prospectus
Supplement (as defined in the Trust Agreement)
|
Concurrently
with the execution and delivery of this Agreement unless
previously
delivered and still in full force and effect.
|
Yes
|
4
|
Party
required to deliver document
|
Form/Document/Certificate
|
Date
by which to be delivered
|
Covered
by §3(d) Representation
|
|||
|
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 reasonably satisfactory
in form
and substance to the Party A.
|
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.
|
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
|
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
No.: (▇▇▇) ▇▇▇-▇▇▇▇
|
(ii)
|
Addresses
for notices or communications to Party
B:
|
LaSalle
Bank National Association
▇▇▇
▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Global Securities and Trust Services, ▇▇▇▇▇▇ XS 2006-15
Telephone
No.: (▇▇▇)
▇▇▇-▇▇▇▇
With
a
copy to:
Aurora
Loan Services LLC, as Master Servicer
▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Facsimile
No.: (▇▇▇)
▇▇▇-▇▇▇▇
Telephone
No.: (▇▇▇)
▇▇▇-▇▇▇▇
5
|
(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
|
With
respect to Party A, not applicable.
With
respect to Party B, not applicable.
|
(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)
|
|
(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 A and 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.
|
6
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
notwithstanding the occurrence of a Collateralization Event,
this
Agreement and each Transaction hereunder shall continue to
be as a Swap
Agreement and Cap Agreement (as applicable) 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) 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, and
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.
|
7
|
(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 or Party A is no
longer rated by
S&P. 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”) or
(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” or Party A is no longer rated by S&P, 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, and
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, which shall
satisfy the
Rating Agency Condition.
|
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, which shall satisfy the Rating Agency
Condition 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 Moody’s (and if rated “A1” by Moody’s, 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 Moody’s (and if rated “P-1” by Moody’s, 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 Moody’s, the unsecured, long-term senior debt
obligations of such substitute counterparty (or its Credit Support
Provider) are
rated at least “Aa3” by Moody’s (and if rated “Aa3” by Moody’s, 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.
8
|
(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.
|
(a)
With
respect to Party A: 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.
(b)
With
respect to Party B: It is acting not in its individual capacity, but
solely as
trustee of the Supplemental Interest Trust and has been directed to
enter in the
Swap Transaction.
|
(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.
|
9
|
(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 Transactions
evidenced by
the Confirmation with Reference ID: 408114HN dated September
29, 2006,
between Party A and Party B, as amended from time to time,
shall be the
sole Transactions 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(b) 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) (including an acceptance and assumption of
the
Disclosure Agreements by the transferor) 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 LaSalle Bank National
Association.
not individually or personally but solely as the trustee
of the
Supplemental Interest Trust, ▇▇▇▇▇▇ XS Trust Mortgage Pass-Through
Certificates, Series 2006-15, in the exercise of the powers
and authority
conferred and vested in it under the Trust Agreement, (ii)
each of the
representations, undertakings and agreements herein made
on the part of
Supplemental Interest Trust, ▇▇▇▇▇▇ XS Trust Mortgage Pass-Through
Certificates, Series 2006-15 is made and intended not as
a personal
representation, undertaking or agreement by LaSalle Bank
National
Association, but is made and intended for the purpose of
binding only the
Supplemental Interest Trust, ▇▇▇▇▇▇ XS Trust Mortgage Pass-Through
Certificates, Series 2006-15, (iii) nothing herein contained
shall be
construed as creating any liability on the part of LaSalle
Bank National
Association, individually or personally, to perform any covenant
either
express 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
LaSalle 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, ▇▇▇▇▇▇ XS Trust
Mortgage
Pass-Through Certificates, Series 2006-15 under this Agreement
or any
other related documents.
|
10
|
(h)
|
Proceedings.
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 2006-15 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
any case or proceeding voluntarily filed or commenced by
Party B, 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).
|
|
(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.
|
11
|
(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)
|
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 any other person 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]
12
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.
|
HSBC
BANK USA, NATIONAL ASSOCIATION
|
SUPPLEMENTAL
INTEREST TRUST, ▇▇▇▇▇▇ XS TRUST MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES
2006-15
|
|
|
By:
LaSalle Bank National Association, not in its individual
capacity, but
solely as trustee
|
||
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
/s/
▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
Name:
▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|
|
Title:
Senior Vice President
|
Title:
Assistant Vice President
|
|
|
Date:
September 29, 2006
|
Date:
September 29, 2006
|
13
Transaction
|
Date:
|
11
October, 2006
|
|
To:
|
▇▇▇▇▇▇
XS Trust Mortgage Pass-Through Certificates, Series
2006-15
|
|
c/o
LaSalle Bank National Association
|
|
|
▇▇▇
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
|
|
|
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
|
From:
|
▇▇▇▇▇▇
Brothers Special Financing Inc.
|
|
▇▇▇▇▇
▇▇▇ - Confirmations Group
|
|
|
Facsimile:(▇▇)
▇▇▇-▇▇▇-▇▇▇▇ (United States of America)
|
|
|
Telephone:▇▇▇-▇▇▇-▇▇▇▇
|
|
|
Ref.
Numbers:
|
Risk
ID: 1312139L / Effort ID: N1074685 / Global Deal ID: 2675774
|
Dear
Sir
or Madam:
The
purpose of this communication is to set forth the terms and conditions of the
interest rate transaction that has been entered into on the Trade Date referred
to below (the “Transaction”), between ▇▇▇▇▇▇ Brothers Special Financing Inc.
(“Party A”) and ▇▇▇▇▇▇ XS Trust Mortgage Pass-Through Certificates, Series
2006-15 (the “Trust” or “Party B”) formed under the Trust Agreement (defined
below) which is governed by the laws of the State of New York. This
communication constitutes a “Confirmation” as referred to in the Master
Agreement specified below.
This
Confirmation is subject to and incorporates the terms of the 1992 version
of the preprinted multicurrency cross-border form of Master Agreement published
by the International Swaps and Derivatives Association, Inc. (“ISDA”) (the
“Agreement”), but without regard to any modifications or elections that the
parties may be entitled to make pursuant to a Schedule except as provided in
the
Additional Provisions paragraph herein. All provisions contained in, or
incorporated by reference to, the Agreement shall govern this Confirmation
except as expressly modified below. In addition, this Confirmation shall itself
evidence a complete and binding agreement between you and us as to the terms
and
conditions of the Transaction to which this Confirmation relates.
This
communication incorporates the definitions and provisions contained in the
2000
ISDA Definitions (as published by the International Swaps and Derivatives
Association, Inc.). In the event of any inconsistency between the Definitions
and this Confirmation, this Confirmation will govern. For the purpose of the
Definitions, references herein to a “Transaction” shall be deemed to be
references to a “Swap Transaction”.
▇▇▇▇▇▇
BROTHERS SPECIAL FINANCING INC.
▇▇▇▇▇▇
BROTHERS INC.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
The
terms
of the particular Transaction to which this Confirmation relates are as
follows:
|
General
Terms:
|
||
|
Trade
Date:
|
25
September, 2006
|
|
|
Effective
Date:
|
25
September, 2007
|
|
|
Termination
Date:
|
25
September, 2011, subject to adjustment in accordance with the Modified
Following Business Day Convention.
|
|
|
Notional
Amount:
|
USD
43,085,196 - subject to adjustment in accordance with Appendix A
attached
hereto.
|
|
|
Fixed
Amounts:
|
||
|
Fixed
Amount Payer:
|
Party
B
|
|
|
Fixed
Amount Payer Payment Dates:
|
Inapplicable
|
|
|
Fixed
Amount:
|
By
its execution hereof and with effect from the Trade Date above Party
A
irrevocably acknowledges receipt of all agreed consideration from
Party B
in respect of this Transaction.
|
|
|
Floating
Amounts:
|
||
|
Floating
Amount Payer:
|
Party
A
|
|
|
Floating
Rate:
|
The
greater of (a) 0% and (b) USD-LIBOR-BBA with a Designated Maturity
of one
month minus
7.00%
|
|
|
Floating
Rate Payer Period End Date:
|
The
25th calendar day of each month, from and including 25 October, 2007
to
and including the Termination Date, subject to adjustment in accordance
with the Modified Following Business Day Convention.
|
|
|
Early
Payment:
|
1
Business Day preceding each Floating Rate Payer Period End
Date
|
|
|
Spread:
|
Inapplicable
|
|
|
Floating
Rate Day Count Fraction:
|
Actual/360
|
|
|
Reset
Dates:
|
The
first day of each Calculation Period
|
|
|
Business
Days:
|
New
York
|
|
|
Miscellaneous:
|
||
|
Calculation
Agent:
|
Party
A
|
Risk
ID: 1312139L / Effort ID: N1074685 / Global Deal ID: 2675774
Page
2 of 7
|
Transfer:
|
Notwithstanding
Section 7 of the Agreement, Party A may assign its rights and obligations
under this Transaction, in whole and not in part, to any Affiliate
of
▇▇▇▇▇▇ Brothers Holdings Inc. (“Holdings”) effective upon delivery to
Party B of the guarantee by Holdings, in favor of Party B, of the
obligations of such Affiliate.
|
|
|
Governing
Law:
|
The
laws of the State of New York (without reference to choice of law
doctrine).
|
|
|
Termination
Currency:
|
USD
|
Additional
Provisions:
|
1.
|
The
“Cross
Default” provisions
of Section 5(a)(vi)
of
the Agreement will not apply.
|
|
2.
|
The
“Credit
Event Upon Merger”
provisions of Section
5(b)(iv)
of
the Agreement will not apply.
|
|
3.
|
The
"Automatic
Early Termination"
provisions of Section 6(a) of the Agreement will not apply.
|
|
4.
|
"Specified
Entity"
will not apply to either Party A or Party
B.
|
|
5.
|
Payments
on Early Termination.
For the purposes of Section 6(e) of the Agreement, Loss and Second
Method
will be used.
|
|
6.
|
The
provisions of Section 5(a) (ii), (iii), (iv) and (vii) of the Agreement
will not apply to Party B.
|
| 7. |
Representations.
Section 3 of the Agreement is hereby amended by adding the following
additional subsections:
|
|
(a)
|
No
Agency. It
is entering into this Transaction as
principal.
|
|
(b)
|
Eligible
Contract Participant.
It
is an “eligible contract participant” as defined in the Commodity Futures
Modernization Act of 2000.
|
|
(c)
|
No
Reliance.
In
connection with the negotiation, entering into and execution of this
Transaction, Party B acknowledges and agrees that: (i) Party A is
acting
for its own account and not as a fiduciary for, or financial or investment
advisor to, Party B (or in any similar capacity) regardless of whether
Party A provides Party B with market information or its views; (ii)
Party
B is not relying upon any communications (whether written or oral)
from
Party A as investment advice or as a recommendation to enter into
this
Transaction (other than the representations expressly set forth in
the
Master Agreement), it being understood that information and explanations
related to the terms and conditions of this Transaction shall not
be
considered investment advice or a recommendation to enter into this
Transaction; (iii) Party B has not received from Party A any assurance
or
guarantee as to the expected results of this Transaction and understands
the risks of the Transaction; (iv) Party B has consulted with its
own
legal, regulatory, tax, business, investment, financial, and accounting
advisors to the extent it has deemed necessary, and it has made its
own
independent investment, hedging, and trading decisions based upon
its own
judgment and upon any advice from such advisors as it has deemed
necessary
and not upon any view expressed by Party A; and (v) Party B has determined
based upon its own judgment and upon any advice received from its
own
professional advisors as it has deemed necessary to consult that
entering
into the Transaction is appropriate for such party in light of its
financial capabilities and objectives.
|
Risk
ID: 1312139L / Effort ID: N1074685 / Global Deal ID: 2675774
Page
3 of 7
|
8.
|
Netting
of Payments. Subparagraph
(ii)
of
Section
2(c)
of
the Agreement will not apply to any Transaction between the parties
hereto.
|
|
9.
|
Limitation
of Liability.
It is expressly understood and agreed by the parties hereto that
(a) this
Confirmation is executed and delivered by LaSalle Bank National
Association (the “Trustee”), not individually or personally but solely as
trustee of the Trust, in the exercise of the powers and authority
conferred and vested in it under the Trust Agreement (the “Trust
Agreement”) dated as of 01 September, 2006, among the Trustee, Aurora Loan
Services LLC, as Master Servicer and Structured Asset Securities
Corporation, as Depositor, and pursuant to instruction therein (b)
each of
the representations, undertakings and agreements herein made on behalf
of
the Trust is made and intended not as a personal representation,
undertaking or agreement of the Trustee but is made and intended
for the
purpose of binding only the Trust and (c) 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 the
Trust under this Confirmation.
|
|
10.
|
Non-Petition.
▇▇▇▇▇▇ Brothers Special Financing Inc. hereby irrevocably and
unconditionally agrees that it will not institute against, or join
any
other person in instituting against, the Party B, any bankruptcy,
reorganization, arrangement, insolvency, or similar proceeding under
the
laws of the United States, or any other jurisdiction until one year
and
one day after the termination of this
Trust.
|
|
11.
|
Waiver
of Trial By Jury. Insofar
as is permitted by law, each party irrevocably waives any and all
rights
to trial by jury in any legal proceeding in connection with this
Transaction, and acknowledges that this waiver is a material inducement
to
the other party’s entering into this
Transaction.
|
|
12.
|
Any
amendments, transfers or assignments of obligations under this
Confirmation shall not be effective unless a Rating Agency
confirms in writing that the rating of any Certificates
issued by the Trust will be unaffected by such
action.
|
Payment
Instructions for Party B in USD:
LaSalle
Bank, Chicago, IL
ABA#
▇▇▇▇▇▇▇▇▇
LaSalle
CHGO/CTR/BNF:/LASALLE TRUST
A/C#
724099.2
Risk
ID: 1312139L / Effort ID: N1074685 / Global Deal ID: 2675774
Page
4 of 7
Please
confirm your agreement with the foregoing by executing this Confirmation and
returning such Confirmation, in its entirety, to us at facsimile number
▇▇▇-▇▇▇-▇▇▇▇ (United States of America), Attention: Documentation.
Very
truly yours,
▇▇▇▇▇▇
Brothers Special Financing Inc.
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Authorized
Signatory
Accepted
and confirmed as of the date first written
▇▇▇▇▇▇
XS
Trust Mortgage Pass-Through Certificates, Series 2006-15,
By:
LaSalle
Bank National Association
not in
its individual capacity but solely as Trustee
By:
/s/
Andy_Streepey
Name:
▇▇▇▇
▇▇▇▇▇▇▇▇
Title:
Assistant
Vice President
Risk
ID: 1312139L / Effort ID: N1074685 / Global Deal ID: 2675774
Page
5 of 7
Appendix
A
|
*Calculation
Periods from and including
|
*Calculation
Periods up to but excluding
|
Notional
Amount (in USD)
|
|
09/25/07
|
10/25/07
|
43,085,196.00
|
|
10/25/07
|
11/26/07
|
44,855,952.00
|
|
11/26/07
|
12/26/07
|
46,438,337.00
|
|
12/26/07
|
01/25/08
|
47,821,750.00
|
|
01/25/08
|
02/25/08
|
49,001,781.00
|
|
02/25/08
|
03/25/08
|
50,051,285.00
|
|
03/25/08
|
04/25/08
|
50,946,472.00
|
|
04/25/08
|
05/27/08
|
51,594,983.00
|
|
05/27/08
|
06/25/08
|
52,127,156.00
|
|
06/25/08
|
07/25/08
|
51,851,884.00
|
|
07/25/08
|
08/25/08
|
51,731,650.00
|
|
08/25/08
|
09/25/08
|
51,741,050.00
|
|
09/25/08
|
10/27/08
|
99,326,152.00
|
|
10/27/08
|
11/25/08
|
99,135,687.00
|
|
11/25/08
|
12/26/08
|
98,788,680.00
|
|
12/26/08
|
01/26/09
|
98,298,660.00
|
|
01/26/09
|
02/25/09
|
97,664,333.00
|
|
02/25/09
|
03/25/09
|
96,925,545.00
|
|
03/25/09
|
04/27/09
|
96,079,326.00
|
|
04/27/09
|
05/26/09
|
95,119,497.00
|
|
05/26/09
|
06/25/09
|
94,053,872.00
|
|
06/25/09
|
07/27/09
|
92,794,420.00
|
|
07/27/09
|
08/25/09
|
91,489,554.00
|
|
08/25/09
|
09/25/09
|
82,804,280.00
|
|
09/25/09
|
10/26/09
|
74,830,933.00
|
|
10/26/09
|
11/25/09
|
73,702,359.00
|
|
11/25/09
|
12/28/09
|
72,538,783.00
|
|
12/28/09
|
01/25/10
|
71,345,118.00
|
|
01/25/10
|
02/25/10
|
70,125,925.00
|
|
02/25/10
|
03/25/10
|
68,885,433.00
|
|
03/25/10
|
04/26/10
|
67,627,556.00
|
|
04/26/10
|
05/25/10
|
66,355,918.00
|
|
05/25/10
|
06/25/10
|
65,073,866.00
|
|
06/25/10
|
07/26/10
|
63,784,490.00
|
|
07/26/10
|
08/25/10
|
62,490,636.00
|
|
08/25/10
|
09/27/10
|
61,194,924.00
|
Risk
ID: 1312139L / Effort ID: N1074685 / Global Deal ID: 2675774
Page
6 of 7
|
*Calculation
Periods from and including
|
*Calculation
Periods up to but excluding
|
Notional
Amount (in USD)
|
|
09/27/10
|
10/25/10
|
59,899,759.00
|
|
10/25/10
|
11/26/10
|
58,574,478.00
|
|
11/26/10
|
12/27/10
|
57,198,889.00
|
|
12/27/10
|
01/25/11
|
55,572,068.00
|
|
01/25/11
|
02/25/11
|
54,290,703.00
|
|
02/25/11
|
03/25/11
|
53,038,639.00
|
|
03/25/11
|
04/25/11
|
51,789,568.00
|
|
04/25/11
|
05/25/11
|
50,302,604.00
|
|
05/25/11
|
06/27/11
|
48,923,902.00
|
|
06/27/11
|
07/25/11
|
44,188,051.00
|
|
07/25/11
|
08/25/11
|
41,538,119.00
|
|
08/25/11
|
09/25/11
|
24,549,646.00
|
*subject
to adjustment in accordance with
the relevant Business Day Convention.
Risk
ID: 1312139L / Effort ID: N1074685 / Global Deal ID: 2675774
Page
7 of 7