ISDA® International Swap Dealers Association, Inc. MASTER AGREEMENT dated as of September 28, 2006
(Multicurrency
— Cross Border)
ISDA®
International
Swap Dealers Association, Inc.
MASTER
AGREEMENT
dated
as
of September 28, 2006
|
DEUTSCHE
BANK AG, NEW YORK BRANCH
|
and
|
JPMORGAN
CHASE BANK, N.A.,
not
in its individual capacity, but solely as trustee of the External
Trust
relating to the POPULAR
ABS, INC. MORTGAGE PASS-THROUGH CERTIFICATES, SERIES
2006-D
|
have
entered and/or anticipate entering into one or more transactions (each a
“Transaction”) that are or will be governed by this Master Agreement, which
includes the schedule (the “Schedule”), and the documents and other confirming
evidence (each a “Confirmation”) exchanged between the parties confirming those
Transactions.
Accordingly,
the parties agree as follows: —
| 1. |
Interpretation
|
(a) Definitions.
The
terms defined in Section 14 and in the Schedule will have the meanings therein
specified for the purpose of this Master Agreement.
(b) Inconsistency.
In the
event of any inconsistency between the provisions of the Schedule and the other
provisions of this Master Agreement, the Schedule will prevail. In the event
of
any inconsistency between the provisions of any Confirmation and this Master
Agreement (including the Schedule), such Confirmation will prevail for the
purpose of the relevant Transaction.
(c) Single
Agreement.
All
Transactions are entered into in reliance on the fact that this Master Agreement
and all Confirmations form a single agreement between the parties (collectively
referred to as this “Agreement”), and the parties would not otherwise enter into
any Transactions.
| 2. |
Obligations
|
(a) General
Conditions.
(i) Each
party will make each payment or delivery specified in each Confirmation to
be
made by it, subject to the other provisions of this Agreement.
(ii) Payments
under this Agreement will be made on the due date for value on that date in
the
place of the account specified in the relevant Confirmation or otherwise
pursuant to this Agreement, in freely transferable funds and in the manner
customary for payments in the required currency. Where settlement is by delivery
(that is, other than by payment), such delivery will be made for receipt on
the
due date in the manner customary for the relevant obligation unless otherwise
specified in the relevant Confirmation or elsewhere in this
Agreement.
(iii) Each
obligation of each party under Section 2(a)(i) is subject to (1) the condition
precedent that no Event of Default or Potential Event of Default with respect
to
the other party has occurred and is continuing, (2) the condition precedent
that
no Early Termination Date in respect of the relevant Transaction has occurred
or
been effectively designated and (3) each other applicable condition precedent
specified in this Agreement.
(b) Change
of Account.
Either
party may change its account for receiving a payment or delivery by giving
notice to the other party at least five Local Business Days prior to the
scheduled date for the payment or delivery to which such change applies unless
such other party gives timely notice of a reasonable objection to such
change.
(c) Netting.
If on
any date amounts would otherwise be payable:—
(i) in
the
same currency; and
(ii) in
respect of the same Transaction,
by
each
party to the other, then, on such date, each party’s obligation to make payment
of any such amount will be automatically satisfied and discharged and, if the
aggregate amount that would otherwise have been payable by one party exceeds
the
aggregate amount that would otherwise have been payable by the other party,
replaced by an obligation upon the party by whom the larger aggregate amount
would have been payable to pay to the other party the excess of the larger
aggregate amount over the smaller aggregate amount.
The
parties may elect in respect of two or more Transactions that a net amount
will
be determined in respect of all amounts payable on the same date in the same
currency in respect of such Transactions, regardless of whether such amounts
are
payable in respect of the same Transaction. The election may be made in the
Schedule or a Confirmation by specifying that subparagraph (ii) above will
not
apply to the Transactions identified as being subject to the election, together
with the starting date (in which case subparagraph (ii) above will not, or
will
cease to, apply to such Transactions from such date). This election may be
made
separately for different groups of Transactions and will apply separately to
each pairing of Offices through which the parties make and receive payments
or
deliveries.
(d) Deduction
or Withholding for Tax.
(i) Gross-Up.
All
payments under this Agreement will be made without any deduction or withholding
for or on account of any Tax unless such deduction or withholding is required
by
any applicable law, as modified by the practice of any relevant governmental
revenue authority, then in effect.
If a
party is so required to deduct or withhold, then that party (“X”)
will:—
(1) promptly
notify the other party (“Y”) of such requirement;
(2) pay
to
the relevant authorities the full amount required to be deducted or withheld
(including the full amount required to be deducted or withheld from any
additional amount paid by X to Y under this Section 2(d)) promptly upon the
earlier of determining that such deduction or withholding is required or
receiving notice that such amount has been assessed against Y;
(3) promptly
forward to Y an official receipt (or a certified copy), or other documentation
reasonably acceptable to Y, evidencing such payment to such authorities; and
(4) if
such
Tax is an Indemnifiable Tax, pay to Y, in addition to the payment to which
Y is
otherwise entitled under this Agreement, such additional amount as is necessary
to ensure that the net amount actually received by Y (free and clear of
Indemnifiable Taxes, whether assessed against X or Y) will equal the full amount
Y would have received had no such deduction or withholding been required.
However, X will not be required to pay any additional amount to Y to the extent
that it would not be required to be paid but for:—
2
(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.
| 3. |
Representations
|
Each
party represents to the other party (which representations will be deemed to
be
repeated by each party on each date on which a Transaction is entered into
and,
in the case of the representations in Section 3(f), at all times until the
termination of this Agreement) that:—
(a) Basic
Representations.
(i) Status.
It is
duly organised and validly existing under the laws of the jurisdiction of its
organisation or incorporation and, if relevant under such laws, in good
standing;
(ii) Powers.
It has
the power to execute this Agreement and any other documentation relating to
this
Agreement to which it is a party, to deliver this Agreement and any other
documentation relating to this Agreement that it is required by this Agreement
to deliver and to perform its obligations under this Agreement and any
obligations it has under any Credit Support Document to which it is a party
and
has taken all necessary action to authorise such execution, delivery and
performance;
(iii) No
Violation or Conflict.
Such
execution, delivery and performance do not violate or conflict with any law
applicable to it, any provision of its constitutional documents, any order
or
judgment of any court or other agency of government applicable to it or any
of
its assets or any contractual restriction binding on or affecting it or any
of
its assets;
3
(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.
| 4. |
Agreements
|
Each
party agrees with the other that, so long as either party has or may have any
obligation under this Agreement or under any Credit Support Document to which
it
is a party:—
(a) Furnish
Specified Information.
It will
deliver to the other party or, in certain cases under subparagraph (iii) below,
to such government or taxing authority as the other party reasonably
directs:—
(i) any
forms, documents or certificates relating to taxation specified in the Schedule
or any Confirmation;
(ii) any
other
documents specified in the Schedule or any Confirmation; and
(iii) upon
reasonable demand by such other party, any form or document that may be required
or reasonably requested in writing in order to allow such other party or its
Credit Support Provider to make a payment under this Agreement or any applicable
Credit Support Document without any deduction or withholding for or on account
of any Tax or with such deduction or withholding at a reduced rate (so long
as
the completion, execution or submission of such form or document would not
materially prejudice the legal or commercial position of the party in receipt
of
such demand), with any such form or document to be accurate and completed in
a
manner reasonably satisfactory to such other party and to be executed and to
be
delivered with any reasonably required certification, in
each
case by the date specified in the Schedule or such Confirmation or, if none
is
specified, as soon as reasonably practicable.
4
(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.
| 5. |
Events
of Default and Termination
Events
|
(a) Events
of Default.
The
occurrence at any time with respect to a party or, if applicable, any Credit
Support Provider of such party or any Specified Entity of such party of any
of
the following events constitutes an event of default (an “Event of Default”)
with respect to such party:—
(i) Failure
to Pay or Deliver.
Failure
by the party to make, when due, any payment under this Agreement or delivery
under Section 2(a)(i) or 2(e) required to be made by it if such failure is
not
remedied on or before the third Local Business Day after notice of such failure
is given to the party;
(ii) Breach
of Agreement.
Failure
by the party to comply with or perform any agreement or obligation (other than
an obligation to make any payment under this Agreement or delivery under Section
2(a)(i)
or 2(e)
or to give notice of a Termination Event or any agreement or obligation under
Section 4(a)(i), 4(a)(iii) or 4(d)) to be complied with or performed by the
party in accordance with this Agreement if such failure is not remedied on
or
before the thirtieth day after notice of such failure is given to the
party;
(iii) Credit
Support Default.
(1) Failure
by the party or any Credit Support Provider of such party to comply with or
perform any agreement or obligation to be complied with or performed by it
in
accordance with any Credit Support Document if such failure is continuing after
any applicable grace period has elapsed;
(2) the
expiration or termination of such Credit Support Document or the failing or
ceasing of such Credit Support Document to be in full force and effect for
the
purpose of this Agreement (in either case other than in accordance with its
terms) prior to the satisfaction of all obligations of such party under each
Transaction to which such Credit Support Document relates without the written
consent of the other party; or
(3) the
party
or such Credit Support Provider disaffirms, disclaims, repudiates or rejects,
in
whole or in part, or challenges the validity of, such Credit Support
Document;
5
(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
6
(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);
7
(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.
| 6. |
Early
Termination
|
(a) Right
to Terminate Following Event of Default.
If at
any time an Event of Default with respect to a party (the “Defaulting Party”)
has occurred and is then continuing, the other party (the “Non-defaulting
Party”)
may, by
not more than 20 days notice to the Defaulting Party specifying the relevant
Event of Default, designate a day not earlier than the day such notice is
effective as an Early Termination Date in respect of all outstanding
Transactions. If, however, “Automatic Early Termination” is specified in the
Schedule as applying to a party, then an Early Termination Date in respect
of
all outstanding Transactions will occur immediately upon the occurrence with
respect to such party of an Event of Default specified in Section 5(a)(vii)(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.
8
(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.
9
(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: —
(A) if
Market
Quotation applies, each party will determine a Settlement Amount in respect
of
the Terminated Transactions, and an amount will be payable equal to (I) the
sum
of (a) one-half of the difference between the Settlement Amount of the party
with the higher Settlement Amount (“X”) and the Settlement Amount of the party
with the lower Settlement Amount (“Y”) and (b) the Termination Currency
Equivalent of the Unpaid Amounts owing to X less (II) the Termination Currency
Equivalent of the Unpaid Amounts owing to Y; and
(B) if
Loss
applies, each party will determine its Loss in respect of this Agreement (or,
if
fewer than all the Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable equal to one-half of
the
difference between the Loss of the party with the higher Loss (“X”) and the Loss
of the party with the lower Loss (“Y”).
10
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.
| 7. |
Transfer
|
Subject
to Section 6(b)(ii), neither this Agreement nor any interest or obligation
in or
under this Agreement may be transferred (whether by way of security or
otherwise) by either party without the prior written consent of the other party,
except that: —
(a) a
party
may make such a transfer of this Agreement pursuant to a consolidation or
amalgamation with, or merger with or into, or transfer of all or substantially
all its assets to, another entity (but without prejudice to any other right
or
remedy under this Agreement); and
(b) a
party
may make such a transfer of all or any part of its interest in any amount
payable to it from a Defaulting Party under Section 6(e).
Any
purported transfer that is not in compliance with this Section will be
void.
| 8. |
Contractual
Currency
|
(a) Payment
in the Contractual Currency.
Each
payment under this Agreement will be made in the relevant currency specified
in
this Agreement for that payment (the “Contractual Currency”). To the extent
permitted by applicable law, any obligation to make payments under this
Agreement in the Contractual Currency will not be discharged or satisfied by
any
tender in any currency other than the Contractual Currency, except to the extent
such tender results in the actual receipt by the party to which payment is
owed,
acting in a reasonable manner and in good faith in converting the currency
so
tendered into the Contractual Currency, of the full amount in the Contractual
Currency of all amounts payable in respect of this Agreement. If for any reason
the amount in the Contractual Currency so received falls short of the amount
in
the Contractual Currency payable in respect of this Agreement, the party
required to make the payment will, to the extent permitted by applicable law,
immediately pay such additional amount in the Contractual Currency as may be
necessary to compensate for the shortfall. If for any reason the amount in
the
Contractual Currency so received exceeds the amount in the Contractual Currency
payable in respect of this Agreement, the party receiving the payment will
refund promptly the amount of such excess.
(b) Judgments.
To the
extent permitted by applicable law, if any judgment or order expressed in a
currency other than the Contractual Currency is rendered (i) for the payment
of
any amount owing in respect of this Agreement, (ii) for the payment of any
amount relating to any early termination in respect of this Agreement or (iii)
in respect of a judgment or order of another court for the payment of any amount
described in (i) or (ii) above, the party seeking recovery, after recovery
in
full of the aggregate amount to which such party is entitled pursuant to the
judgment or order, will be entitled to receive immediately from the other party
the amount of any shortfall of the Contractual Currency received by such party
as a consequence of sums paid in such other currency and will refund promptly
to
the other party any excess of the Contractual Currency received by such party
as
a consequence of sums paid in such other currency if such shortfall or such
excess arises or results from any variation between the rate of exchange at
which the Contractual Currency is converted into the currency of the judgment
or
order for the purposes of such judgment or order and the rate of exchange at
which such party is able, acting in a reasonable manner and in good faith in
converting the currency received into the Contractual Currency, to purchase
the
Contractual Currency with the amount of the currency of the judgment or order
actually received by such party. The term “rate of exchange” includes, without
limitation, any premiums and costs of exchange payable in connection with the
purchase of or conversion into the Contractual Currency.
11
(c) Separate
Indemnities.
To the
extent permitted by applicable law, these indemnities constitute separate and
independent obligations from the other obligations in this Agreement, will
be
enforceable as separate and independent causes of action, will apply
notwithstanding any indulgence granted by the party to which any payment is
owed
and will not be affected by judgment being obtained or claim or proof being
made
for any other sums payable in respect of this Agreement.
(d) Evidence
of Loss.
For the
purpose of this Section 8, it will be sufficient for a party to demonstrate
that
it would have suffered a loss had an actual exchange or purchase been
made.
| 9. |
Miscellaneous
|
(a) Entire
Agreement.
This
Agreement constitutes the entire agreement and understanding of the parties
with
respect to its subject matter and supersedes all oral communication and prior
writings with respect thereto.
(b) Amendments.
No
amendment, modification or waiver in respect of this Agreement will be effective
unless in writing (including a writing evidenced by a facsimile transmission)
and executed by each of the parties or confirmed by an exchange of telexes
or
electronic messages on an electronic messaging system.
(c) Survival
of Obligations.
Without
prejudice to Sections 2(a)(iii) and 6(c)(ii), the obligations of the parties
under this Agreement will survive the termination of any
Transaction.
(d) Remedies
Cumulative.
Except
as provided in this Agreement, the rights, powers, remedies and privileges
provided in this Agreement are cumulative and not exclusive of any rights,
powers, remedies and privileges provided by law.
(e) Counterparts
and Confirmations.
(i) This
Agreement (and each amendment, modification and waiver in respect of it) may
be
executed and delivered in counterparts (including by facsimile transmission),
each of which will be deemed an original.
(ii) The
parties intend that they are legally bound by the terms of each Transaction
from
the moment they agree to those terms (whether orally or otherwise). A
Confirmation shall be entered into as soon as practicable and may be executed
and delivered in counterparts (including by facsimile transmission) or be
created by an exchange of telexes or by an exchange of electronic messages
on an
electronic messaging system, which in each case will be sufficient for all
purposes to evidence a binding supplement to this Agreement. The parties will
specify therein or through another effective means that any such counterpart,
telex or electronic message constitutes a Confirmation.
(f) No
Waiver of Rights.
A
failure or delay in exercising any right, power or privilege in respect of
this
Agreement will not be presumed to operate as a waiver, and a single or partial
exercise of any right, power or privilege will not be presumed to preclude
any
subsequent or further exercise, of that right, power or privilege or the
exercise of any other right, power or privilege.
(g) Headings.
The
headings used in this Agreement are for convenience of reference only and are
not to affect the construction of or to be taken into consideration in
interpreting this Agreement.
12
| 10. |
Offices;
Multibranch Parties
|
(a) If
Section 10(a) is specified in the Schedule as applying, each party that enters
into a Transaction through an Office other than its head or home office
represents to the other party that, notwithstanding the place of booking office
or jurisdiction of incorporation or organisation of such party, the obligations
of such party are the same as if it had entered into the Transaction through
its
head or home office. This representation will be deemed to be repeated by such
party on each date on which a Transaction is entered into.
(b) Neither
party may change the Office through which it makes and receives payments or
deliveries for the purpose of a Transaction without the prior written consent
of
the other party.
(c) If
a
party is specified as a Multibranch Party in the Schedule, such Multibranch
Party may make and receive payments or deliveries under any Transaction through
any Office listed in the Schedule, and the Office through which it makes and
receives payments or deliveries with respect to a Transaction will be specified
in the relevant Confirmation.
| 11. |
Expenses
|
A
Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees
and
Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or any Credit Support Document
to
which the Defaulting Party is a party or by reason of the early termination
of
any Transaction, including, but not limited to, costs of
collection.
| 12. |
Notices
|
(a) Effectiveness.
Any
notice or other communication in respect of this Agreement may be given in
any
manner set forth below (except that a notice or other communication under
Section 5 or 6 may not be given by facsimile transmission or electronic
messaging system) to the address or number or in accordance with the electronic
messaging system details provided (see the Schedule) and will be deemed
effective as indicated:—
(i) if
in
writing and delivered in person or by courier, on the date it is
delivered;
(ii) if
sent
by telex, on the date the recipient’s answerback is received;
(iii) if
sent
by facsimile transmission, on the date that transmission is received by a
responsible employee of the recipient in legible form (it being agreed that
the
burden of proving receipt will be on the sender and will not be met by a
transmission report generated by the sender’s facsimile machine);
(iv) if
sent
by certified or registered mail (airmail, if overseas) or the equivalent (return
receipt requested), on the date that mail is delivered or its delivery is
attempted; or
(v) if
sent
by electronic messaging system, on the date that electronic message is
received,
unless
the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered
(or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change
of Addresses.
Either
party may by notice to the other change the address, telex or facsimile number
or electronic messaging system details at which notices or other communications
are to be given to it.
13
| 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.
| 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.
14
“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.
15
“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 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.
16
“Non-defaulting
Party”
has
the
meaning specified in Section 6(a).
“Office”
means
a
branch or office of a party, which may be such party’s head or home
office.
“Potential
Event of Default”
means
any event which, with the giving of notice or the lapse of time or both, would
constitute an Event of Default.
“Reference
Market-makers”
means
four leading dealers in the relevant market selected by the party determining
a
Market Quotation in good faith (a) from among dealers of the highest credit
standing which satisfy all the criteria that such party applies generally at
the
time in deciding whether to offer or to make an extension of credit and (b)
to
the extent practicable, from among such dealers having an office in the same
city.
“Relevant
Jurisdiction”
means,
with respect to a party, the jurisdictions (a) in which the party is
incorporated, organised, managed and controlled or considered to have its seat,
(b) where an Office through which the party is acting for purposes of this
Agreement is located, (c) in which the party executes this Agreement and (d)
in
relation to any payment, from or through which such payment is
made.
“Scheduled
Payment Date”
means
a
date on which a payment or delivery is to be made under Section 2(a)(i) with
respect to a Transaction.
“Set-off”
means
set-off, offset, combination of accounts, right of retention or withholding
or
similar right or requirement to which the payer of an amount under Section
6 is
entitled or subject (whether arising under this Agreement, another contract,
applicable law or otherwise) that is exercised by, or imposed on, such
payer.
“Settlement
Amount”
means,
with respect to a party and any Early Termination Date, the sum of:
—
(a) the
Termination Currency Equivalent of the Market Quotations (whether positive
or
negative) for each Terminated Transaction or group of Terminated Transactions
for which a Market Quotation is determined; and
(b)
such
party’s Loss (whether positive or negative and without reference to any Unpaid
Amounts) for each Terminated Transaction or group of Terminated Transactions
for
which a Market Quotation cannot be determined or would not (in the reasonable
belief of the party making the determination) produce a commercially reasonable
result.
“Specified
Entity”
has
the
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.
17
“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.
18
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.
|
DEUTSCHE
BANK AG, NEW YORK BRANCH
|
JPMORGAN
CHASE BANK, N.A.,
not
in its individual capacity, but solely as trustee of the External
Trust
relating to the POPULAR
ABS, INC. MORTGAGE PASS-THROUGH CERTIFICATES, SERIES
2006-D
|
|
|
|
|
By:
/s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
By:
/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
|
|
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
|
Title:
Director
|
Title:
Assistant Vice President
|
|
Date:
September 28, 2006
|
Date:
September 28, 2006
|
|
By:
/s/ ▇▇▇▇▇▇▇▇
▇▇▇▇
|
|
|
Name:
▇▇▇▇▇▇▇▇ ▇▇▇▇
|
|
|
Title:
Vice President
|
|
|
Date:
September 28, 2006
|
SCHEDULE
to
the
MASTER
AGREEMENT
dated
as
of September 28, 2006 between
DEUTSCHE
BANK AG, NEW YORK BRANCH
(“Party
A”)
and
JPMORGAN
CHASE BANK, N.A.
not
in its individual capacity, but solely as trustee of the External Trust relating
to the
POPULAR
ABS, INC. MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2006-D (“Party
B”)
Part
1. Termination
Provisions
|
(a)
|
“Specified
Entity”
None specified.
|
| (b) |
“Specified
Transaction”
has its meaning as defined in Section 14 of this
Agreement.
|
| (c) |
“Cross
Default”
applies to Party A and does not apply to Party
B.
|
“Specified
Indebtedness”
has its
meaning as defined in Section 14 of this Agreement; provided,
however,
that,
for the avoidance of doubt, such term shall not be construed as including
deposits received from Party A’s customers in the ordinary course of Party A’s
banking business.
“Threshold
Amount”
means,
with respect to Party A, an amount (including its equivalent in another
currency) equal to the higher of $10,000,000 or 2% of its stockholders’ equity
as reflected on its most recent financial statements or call
reports.
|
(d)
|
“Credit
Event Upon Merger”
applies to Party A and does not apply to Party B. For the avoidance
of
doubt, only Party B shall have the right to designate an Early Termination
Date in connection with a Credit Event Upon
Merger.
|
| (e) |
“Automatic
Early Termination”
does not apply to either party.
|
|
(f)
|
Payments
on Early Termination. Except
as otherwise provided in this Schedule, “Market Quotation” and the “Second
Method” apply.
|
| (g) |
“Termination
Currency”
means United States Dollars.
|
|
(h)
|
Limitation
on Defaults by Party B. The
following Events of Default specified in Section 5 of this Agreement
shall
not apply to Party B:
|
|
(A)
|
Section
5(a)(ii) Breach of Agreement;
|
|
(B)
|
Section
5(a)(iii) Credit Support Default, except due to a default under Paragraph
7(i) of the Credit Support Annex;
|
|
(C)
|
Section
5(a)(iv) Misrepresentation;
|
|
(D)
|
Section
5(a)(v) Default under Specified Transaction;
and
|
|
(E)
|
Section
5(a)(vii)(2) Bankruptcy.
|
| (i) |
Additional
Termination Events.
|
|
(i)
|
Unless
otherwise specified in a Confirmation, the occurrence of any of the
following events shall be an Additional Termination
Event:
|
|
(A)
|
[RESERVED]
|
|
(B)
|
For
so long as any Certificates (as defined in the Pooling and Servicing
Agreement) are deemed outstanding under the Pooling and Servicing
Agreement and rated by Standard & Poor’s Ratings Services, a division
of the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”)
or ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”),
Party A fails to comply with the provisions of this Part 1(i)(i)(B)
below.
For all purposes of this Agreement, Party A shall be the sole Affected
Party with respect to such Additional Termination
Event.
|
|
For
so long as any Certificates are deemed outstanding under the Pooling
and
Servicing Agreement and rated by S&P or Moody’s, if (a) a Ratings
Event (as defined below) occurs with respect to Party A (or any applicable
credit support provider), then Party A shall, within 30 days of such
Ratings Event subject to the Rating Agency Condition (as hereinafter
defined) and at its own expense (unless, within 30 days of such Ratings
Event, each of S&P and Moody’s has reconfirmed the rating of the
Certificates which was in effect immediately prior to such Ratings
Event),
(i) assign this Agreement to a third party that meets or exceeds,
or as to
which any applicable credit support provider of such third party
meets or
exceeds, the Approved Ratings Thresholds (as defined below) on terms
substantially similar to this Agreement, (ii) obtain a guaranty of
Party
A’s obligations under this Agreement from a third party that meets
or
exceeds the Approved Ratings Threshold, in form and substance, (iii)
post
collateral, or (iv) establish any other arrangement satisfactory
to each
Rating Agency, which will be sufficient to restore the immediately
prior
ratings of the Certificates or (b) a Further Ratings Event (as defined
below) occurs with respect to Party A (or any applicable credit support
provider), then Party A shall, within ten (10) days of such Downgrade
Event subject to the Rating Agency Condition (as hereinafter defined)
and
at its own expense (unless, within 10 days of such Ratings Event,
S&P
has reconfirmed the rating of the Certificates which was in effect
immediately prior to such Further Ratings Event), (i) assign this
Agreement to a third party that meets or exceeds, or as to which
any
applicable credit support provider of such third party meets or exceeds,
the Approved Ratings Thresholds on terms substantially similar to
this
Agreement or (ii) obtain a guaranty of Party A’s obligations under this
Agreement from a third party that meets or exceeds the Approved Ratings
Threshold; provided, that, in either case, Party A shall deliver
collateral acceptable to each Rating Agency until Party A has made
such
transfer or obtained a guaranty as set forth in the immediately preceding
clauses (b)(i) and (b)(ii).
|
|
For
purposes of this Agreement, a “Ratings
Event”
shall occur with respect to Party A (or any applicable credit support
provider), if its short-term unsecured and unsubordinated debt ceases
to
be rated at least “A-1” by S&P, its short-term unsecured and
unsubordinated debt ceases to be rated at least “P-1” by Moody’s and its
long-term unsecured and unsubordinated debt ceases to be rated at
least
“A1” by Moody's (including in connection with a merger, consolidation
or
other similar transaction by Party A or any applicable credit support
provider) such ratings being referred to herein as the “Approved
Ratings Thresholds.”
|
|
For
purposes of this Agreement, a “Further
Ratings Event”
shall occur with respect to Party A (or any applicable credit support
provider), if its long-term unsecured and unsubordinated debt ceases
to be
rated at least “BBB-” by S&P or such rating is withdrawn by S&P
(including in connection with a merger, consolidation or other similar
transaction by Party A or any applicable credit support provider).
|
|
For
purposes of this Agreement, a “Rating
Agency Condition”
means, with respect to any particular proposed act or omission to
act
hereunder that the party acting or failing to act must consult with
each
Rating Agency then providing a rating of the Certificates and receive
from
each Rating Agency a prior written confirmation that the proposed
action
or inaction would not cause a downgrade or withdrawal of the then-current
rating of the Certificates.
|
|
(C)
|
For
so long as any Certificates are deemed outstanding under the Pooling
and
Servicing Agreement and neither S&P nor Moody’s rates the
Certificates, S&P or Moody’s rates the creditworthiness of Party A’s
unsecured and unsubordinated debt, deposit or letter of credit obligations
below investment grade (investment grade being a long-term rating
of at
least BBB+ for S&P and Baa1 for ▇▇▇▇▇’▇, and a short-term rating of
A-1 from S&P) and Party A fails to make a Permitted Transfer (as
defined in Section (a) of Part 6 of this Schedule) in accordance
with the
provisions of Part 1(i)(iii) of this Schedule. Party A shall be the
sole
Affected Party with respect to such Additional Termination
Event.
|
|
(D)
|
Party
A shall fail to comply with the provisions of Part 6(a)(i)(C) or
Part 6(h)
within 10 days of a notice from Party B requiring such action pursuant
to
Part 6(h). Party A shall be the sole Affected Party with respect
to such
Additional Termination Event.
|
|
(E)
|
[RESERVED]
|
|
(ii)
|
Notwithstanding
which party is the Affected Party for any Additional Termination
Event,
upon the occurrence of an Early Termination Date for any Additional
Termination Event, Party A shall make the calculations under Section
6(e)
of this Agreement as though it were the non-Affected Party for purposes
of
Section 6(e)(ii)(1) of this Agreement, provided that any Market Quotation
for any Transaction terminated pursuant to clauses (B) or (C) of
subparagraph (i) above shall be the Reference Market-Maker’s price for
entering into a Replacement Transaction with a creditworthy counterparty
in which the Reference Market-Maker would take the side that Party
B had
taken in the Terminated Transaction, known as the “offered side”. Party B
agrees to give written notice to each of S&P (for so long as any
Certificates are deemed outstanding under the Pooling and Servicing
Agreement and rated by S&P) and Moody’s (for so long as any
Certificates are deemed outstanding under the Pooling and Servicing
Agreement and rated by Moody’s) in the event it declares an Additional
Termination Event and designates an Early Termination Date in the
event of
a credit downgrade event with respect to Party A as provided in
subparagraph (i)(B) above.
|
|
(iii)
|
In
the event either S&P or Moody’s rates the creditworthiness of Party
A’s long-term unsecured and unsubordinated debt, deposit or letter
of
credit obligations below investment grade as provided in Part 1(i)(i)(C)
above and Party A fails to make a Permitted Transfer (as defined
in Part
6(a)(ii) below) of the Affected Transactions within thirty days of
the
occurrence of such credit downgrade event, then, beginning on the
Over-Collateralization Commencement Date and continuing until Party
A has
made a Permitted Transfer of the Affected Transactions, Party A shall
transfer to Party B’s Custodian under the Credit Support Annex an amount
of Eligible Collateral having a Value at least equal to the greatest
of
(x) Party A’s Exposure under the Affected Transactions, (y) the amount of
the next payment due from Party A to Party B under the Affected
Transactions, or (z) one percent of the Transactional Notional Amount
(as
hereinafter defined). The posting of such collateral by Party A shall
have
the effect that no Additional Termination Event under Part 1(i)(i)(C)
shall exist with respect to the Affected Transactions unless Party
A has
not made a Permitted Transfer of the Affected Transactions within
60 days
after the occurrence of such credit downgrade event. Party A shall
continue to post collateral following such 60 day period in accordance
with the terms of this Agreement until the earlier to occur of
consummation of a Permitted Transfer of the Affected Transactions
or
termination of this Agreement. At all times following the occurrence
of an
Over-Collateralization Commencement Date, Party A will continue to
use
commercially reasonable efforts to find a replacement party which
meets
the requirements of Part 6(a)(ii) below. The term “Transactional
Notional Amount”
shall mean, as of the date of determination, an amount equal to the
aggregate Notional Amount outstanding at the beginning of and for
the
current Calculation Period under the Affected
Transactions.
|
|
(iv)
|
“Over-Collateralization
Commencement Date” means the first Business Day following the thirty-day
period after the occurrence of the credit downgrade event described
in
Part 1(i)(i)(C) above.
|
|
(j)
|
Events
of Default.
An Event of Default shall not occur with respect to Party A under
Section
5(a)(v)(1) or (2) or Section 5(a)(vi) when the failure to pay or
deliver,
or the default, event of default or other similar condition or event,
as
the case may be, arises solely (i) out of a wire transfer problem
or an
operational or administrative error or omission (so long as the required
funds or property required to make that payment or delivery were
otherwise
available to Party A), or (ii) from the general unavailability of
the
relevant currency due to exchange controls or other similar governmental
action, but in either case only if the payment or delivery is made
within
three Local Business Days after the problem has been corrected, the
error
or omission has been discovered or the currency becomes generally
available.
|
Part
2. Tax
Provisions
|
(a)
|
Payer
Tax Representations.
For the purpose of Section 3(e) of this Agreement, each party makes
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, a party 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) above and the other
party
does not deliver a form or document under Section 4(a)(iii) by reason of
material prejudice to its legal or commercial position.
|
(b)
|
Payee
Tax Representations. For
the purpose of Section 3(f) of this
Agreement:
|
(i)
Party
A
makes the following alternative representations:
|
|
(1)
It is a “non-U.S. branch of a foreign person” for purposes of section
1.1441-4(a)(3)(ii) of the United States Treasury Regulations and
a
“foreign person” for purposes of section 1.6041-4(a)(4) of the United
States Treasury Regulations, or (2) each payment received or to be
received by it in connection with this Agreement will be effectively
connected with its conduct of a trade or business in the United States.
In
the case of clause (1) Party A shall provide to Party B a Form W-8Ben
eliminating backup withholding and in the case of clause (2) Party
A shall
provide a W-8ECI eliminating backup
withholding.
|
(ii)
Party
B
makes the following representations:
The
External Trust (as defined in the Pooling and Servicing Agreement) is a New
York
common law trust and not a foreign trust for United States tax purposes, and
it
is (or, if it is disregarded for United States federal income tax purposes,
its
beneficial owner is) a “U.S. person” (as that term is used in section
1.1441-4(a)(3)(ii) of United States Treasury Regulations).
|
(c)
|
Tax
Forms.
|
|
(i)
|
Delivery
of Tax Forms.
For the purpose of Section 4(a)(i), and without limiting Section
4(a)(iii), each party agrees to duly complete, execute and deliver
to the
other party the tax forms specified below with respect to it (A)
before
the first Payment Date under this Agreement, (B) promptly upon reasonable
demand by the other party and (C) promptly upon learning that any
such
form previously provided by the party has become obsolete or
incorrect.
|
|
(ii)
|
Tax
Forms to be Delivered by Party A:
A
correct, complete and duly executed Form W-8Ben or W-8ECI (or successor
thereto), as the case may be pursuant to Part 2(b)(i) above, that
eliminates U.S. federal backup withholding tax on payments to Party
A
under this Agreement.
|
|
(iii)
|
Tax
Forms to be Delivered by Party B.
A
correct, complete and duly executed U.S. Internal Revenue Service
Form W-9
(or successor thereto) that eliminates U.S. federal backup withholding
tax
on payments to Party B under this
Agreement.
|
|
(iv)
|
Additional
Forms.
Each party agrees to deliver to the other party, upon reasonable
demand by
such other party, any other tax form that may be required or reasonably
requested in writing in order to allow such other party to make a
payment
under this Agreement without deduction or withholding for or on account
of
any tax imposed by any government or other taxing authority in respect
of
any such payment (other than a stamp, registration, documentation
or
similar tax), or with such deduction or withholding at a reduced
rate,
which form shall be correct, complete and duly
executed.
|
(d) Modified
Tax Provisions.
|
(i)
|
Party
A’s obligation under Section 2(d)(i)(4) of this Agreement shall apply
whether or not a Tax is an Indemnifiable Tax, and for that purpose
the
definition of “Indemnifiable Tax” is hereby amended to mean any Tax
assessed against Party A for any amount payable to Party B under
or in
connection with this Agreement.
|
|
(ii)
|
Party
B’s obligations under Section 2(d)(i) of this Agreement shall be limited
to complying with clauses (1), (2) and (3) thereof at any time any
of
Party B’s obligations in respect of the “Certificates” under the Pooling
and Servicing Agreement remain outstanding and Party B shall not
be
obligated to pay any amount under clause (4) thereof until all such
obligations in respect of such “Certificates” have been paid in
full.
|
|
(iii)
|
Notwithstanding
any contrary provision in this Agreement, Party A may not designate
an
Early Termination Date in respect of any Tax Event or Tax Event Upon
Merger, and Party A’s sole remedy in respect thereof shall be to make a
Permitted Transfer (as defined
below).
|
Part
3. Documents
|
(a)
|
Delivery
of Documents.
When it delivers this Agreement, each party shall also deliver its
Closing
Documents to the other party in form and substance reasonably satisfactory
to the other party. For each Transaction, a party shall deliver,
promptly
upon request, a duly executed incumbency certificate for the person(s)
executing the Confirmation for that Transaction on behalf of that
party.
|
(b) Closing
Documents.
(i)
For
Party
A, “Closing
Documents”
mean:
|
(A)
|
an
opinion of Party A’s counsel, addressed to Party B and the Depositor (as
defined in the Pooling and Servicing Agreement) in form and substance
acceptable to the Depositor and Party B’s
counsel;
|
|
(B)
|
a
copy, certified by the Secretary or Assistant Secretary of Party
A, of the
relevant section of such party's by-laws (and if required pursuant
thereto, a signing authority resolution) evidencing the authorization
of
the person signing this Agreement on behalf of Party A to do
so;
|
|
(C)
|
a
duly executed certificate of the Secretary or Assistant Secretary
of Party
A certifying the name and true signature of each person authorized
to
execute this Agreement and enter into Transactions for Party A;
and
|
|
(D)
|
each
Credit Support Document (if any) specified for Party A in this Schedule,
together with a duly executed incumbency certificate for the person(s)
executing that Credit Support Document, or in lieu thereof, a copy
of the
relevant pages of its official signature
book.
|
(ii)
For
Party
B, “Closing
Documents”
mean:
|
(A)
|
an
opinion of Party B’s counsel addressed to Party A in form and substance
acceptable to Party A;
|
|
(B)
|
a
copy, certified by the secretary or assistant secretary of Party
B, of the
resolutions of Party B’s board of directors authorizing the execution,
delivery and performance by Party B of this Agreement and authorizing
Party B to enter into Transactions hereunder;
and
|
|
(C)
|
a
duly executed certificate of the secretary or assistant secretary
of Party
B certifying the name and true signature of each person authorized
to
execute this Agreement and enter into Transactions for Party
B.
|
Part
4. Miscellaneous
|
(a)
|
Addresses
for Notices. For
purposes of Section 12(a) of this Agreement, all notices to a party
shall,
with respect to any particular Transaction, be sent to its address,
telex
number or facsimile number specified in the relevant Confirmation,
provided that any notice under Section 5 or 6 of this Agreement,
and any
notice under this Agreement not related to a particular Transaction,
shall
be sent to a party at its address, telex number or facsimile number
specified below, provided further that any notice under the Credit
Support
Annex shall be sent to a party at its address, telex number or facsimile
number specified in the Credit Support
Annex.
|
To
Party A:
|
All
notices to Party A under Section 5 or 6 (other than notices under
Section
5(a)(i)) shall be sent to:
|
|
|
Deutsche
Bank AG, Head Office
|
|
|
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇
|
|
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
|
▇▇▇▇▇▇▇
|
|
|
Attention:
Legal Department
|
|
|
Fax
No: ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇
|
|
All
other notices to Party A shall be sent directly to the Office through
which Party A is acting for the relevant Transaction, using the address
and contact particulars specified in the Confirmation of that Transaction
or otherwise notified.
|
To
Party B:
JPMORGAN
CHASE BANK, N.A.,
not
in its individual capacity but solely as
Trustee
of the External Trust relating to the
Popular
ABS, Inc. Mortgage Pass-Through Certificates, Series
2006-D
Worldwide
Securities Services/Global Debt
4
New
York Plaza, 6th
Floor
Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
Phone:
▇▇▇-▇▇▇-▇▇▇▇
With
a copy to:
Equity
One, Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Chief Financial Officer
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
|
(b)
|
Process
Agent.
For the purpose of Section 13(c) of this Agreement, neither party
appoints
a Process Agent hereunder.
|
| (c) |
Offices.
Section 10(a) applies.
|
| (d) |
Multibranch
Party.
Neither party is a Multibranch
Party.
|
| (e) |
“Calculation
Agent”
means Party A.
|
| (f) |
Credit
Support Document.
|
|
(i)
|
For
Party A, the following is a Credit Support Document: The Credit Support
Annex dated the date hereof and duly executed and delivered by Party
A and
Party B (the “Credit Support
Annex”).
|
|
(ii)
|
For
Party B, the following is a Credit Support Document: none
specified.
|
| (g) |
Credit
Support Provider.
|
|
(i)
|
For
Party A, Credit Support Provider means: none
specified.
|
|
(ii)
|
For
Party B, Credit Support Provider means: none
specified.
|
|
(h)
|
Governing
Law.
This Agreement will be governed by and construed in accordance with
the
law (and not the law of conflicts except with respect to Sections
5-1401
of the New York General Obligations Law) of the State of New
York.
|
|
(i)
|
Waiver
of Jury Trial.
To
the extent permitted by applicable law, each party irrevocably waives
any
and all right to trial by jury in any legal proceeding in connection
with
this Agreement, any Credit Support Document to which it is a party,
or any
Transaction.
|
|
(j)
|
Netting
of Payments.
Section 2(c) of this Agreement will not
apply.
|
| (k) |
“Affiliate”
has its meaning as defined in Section 14 of this
Agreement.
|
Part
5. Other
Provisions
|
(a)
|
2000
ISDA Definitions.
This Agreement and each Transaction are subject to the 2000 ISDA
Definitions (including its Annex) published by the International
Swaps and
Derivatives Association, Inc. (together, the “2000 ISDA Definitions”) and
will be governed by the provisions of the 2000 ISDA Definitions.
The
provisions of the 2000 ISDA Definitions are incorporated by reference
in,
and shall form part of, this Agreement and each Confirmation. Any
reference to a “Swap Transaction” in the 2000 ISDA Definitions is deemed
to be a reference to a “Transaction” for purposes of this Agreement or any
Confirmation, and any reference to a “Transaction” in this Agreement or
any Confirmation is deemed to be a reference to a “Swap Transaction” for
purposes of the 2000 ISDA Definitions. The provisions of this Agreement
(exclusive of the 2000 ISDA Definitions) shall prevail in the event
of any
conflict between such provisions and the 2000 ISDA
Definitions.
|
|
(b)
|
Additional
Representations. Section
3 is amended by adding, after “section 3(f)” in the introductory sentence
thereof, the words " and Section 3(j)”, and by adding the following
Sections 3(g), (h), (i) and (j):
|
“(g)
Non-Reliance.
For any
Relevant Agreement: (i) it acts as principal and not as agent, (ii) it
acknowledges that the other party acts only arm’s length and is not its agent,
broker, advisor or fiduciary in any respect, and any agency, brokerage, advisory
or fiduciary services that the other party (or any of its affiliates) may
otherwise provide to the party (or to any of its affiliates) excludes the
Relevant Agreement, (iii) it is relying solely upon its own evaluation of the
Relevant Agreement (including the present and future results, consequences,
risks, and benefits thereof, whether financial, accounting, tax, legal, or
otherwise) and upon advice from its own professional advisors, (iv) it
understands the Relevant Agreement and those risks, has determined they are
appropriate for it, and willingly assumes those risks, (v) it has not relied
and
will not be relying upon any evaluation or advice (including any recommendation,
opinion, or representation) from the other party, its affiliates or the
representatives or advisors of the other party or its affiliates (except
representations expressly made in the Relevant Agreement or an opinion of
counsel required thereunder); and (vi) if a party is acting as a Calculation
Agent or Valuation Agent, it does so not as the other party’s agent or
fiduciary, but on an arm’s length basis for the purpose of performing an
administrative function in good faith.
“Relevant
Agreement”
means
this Agreement, each Transaction, each Confirmation, any Credit Support
Document, and any agreement (including any amendment, modification, transfer
or
early termination) between the parties relating thereto or to any
Transaction.
(h)
Eligibility.
It is an
“eligible contract participant” within the meaning of the Commodity Exchange Act
(as amended by the Commodity Futures Modernization Act of 2000).
(i)
FDIC
Requirements.
If it is
a bank subject to the requirements of 12 U.S.C. § 1823(e), its execution,
delivery and performance of this Agreement (including the Credit Support Annex
and each Confirmation) comply with the criteria specified for a “Qualified
Financial Contract” under the heading “Written Agreement Requirements” in that
certain FDIC Statement of Policy on Qualified Financial Contracts dated August
31, 1998.
(j)
ERISA.
Subject
to the last sentence of this Section 5(j), it is not (i) an employee benefit
plan as defined in Section 3(3) of the Employee Retirement Income Security
Act
of 1974, as amended (“ERISA”), or a plan as defined in Section 4975(e)(1) of the
Internal Revenue Code of 1986, as amended (the “Code”), subject to Title I of
ERISA or Section 4975 of the Code, or a plan as so defined but which is not
subject to Title I of ERISA or Section 4975 of the Code but is subject to
another law materially similar to Title I of ERISA or Section 4975 of the Code
(each of which, an “ERISA Plan”), (ii) a person or entity acting on behalf of an
ERISA Plan, or (iii) a person or entity the assets of which constitute assets
of
an ERISA Plan by reason of the U.S. Department of Labor's plan asset regulation,
29 C.F.R. Part 2510.3-101. Alternatively, if and to the extent that a party
cannot make the representations in (i), (ii) or (iii) of this Section 5(j),
the
party represents that this Agreement and each Transaction are eligible for
exemptive relief from the prohibited transaction restrictions of Section 406
of
ERISA and Section 4975 of the Code by a statutory, regulatory or administrative
prohibited transaction exemption.
|
(c)
|
Recorded
Conversations.
Each party and any of its Affiliates may electronically record any
of its
telephone conversations with the other party or with any of the other
party’s Affiliates in connection with this Agreement or any Transaction,
and any such recordings may be submitted in evidence in any proceeding
to
establish any matters pertinent to this Agreement or any
Transaction.
|
|
(d)
|
Confirmation
Procedures.
Upon receipt thereof, Party B shall examine the terms of each Confirmation
sent by Party A, and unless Party B objects to the terms within three
New
York Business Days after receipt of that Confirmation, those terms
shall
be deemed accepted and correct absent manifest error, in which case
that
Confirmation will be sufficient to form a binding supplement to this
Agreement notwithstanding Section 9(e)(ii) of this
Agreement.
|
|
(e)
|
Change
of Account.
Any account designated by a party pursuant to Section 2(b) shall
be in the
same legal and tax jurisdiction as the original
account.
|
Part
6. Additional
Terms Relating to the Pooling and Servicing Agreement
| (a) |
Permitted
Transfers.
|
|
(i)
|
Subject
to what may otherwise be provided in a Confirmation and notwithstanding
Section 7 of this Agreement, Party A may make a Permitted Transfer
(as
hereinafter defined) without the prior written consent of Party B,
and at
Party A’s own cost and expense, if any of the following events
occurs:
|
|
(A)
|
pursuant
to Part 1(i)(i)(B) or (C) of this
Schedule.
|
|
(B)
|
any
Tax Event or Tax Event Upon Merger exists with respect to Party A
at the
time of the transfer.
|
|
(C)
|
Party
A acting in a commercially reasonable manner cannot comply with a
Regulation AB Request (as defined below); provided,
that Party A may, at its option, in lieu of making a Permitted Transfer,
with respect to a Regulation AB Request solely for information deliverable
under Item 1115(b) of Regulation AB (as defined below), deliver collateral
pursuant to an ISDA Credit Support Annex (in the form of the Credit
Support Annex, with such conforming changes to Paragraph 13(b) and
other
provisions thereof as shall be necessary to effect the intent of
this Part
6(a)(i)(C)) in an amount sufficient to reduce the “significance
percentage” to 8% (with respect to the requirements of Item 1115(b)(1) of
Regulation AB) or 16% (with respect to the requirements of Item 1115(b)(2)
of Regulation AB) (it being understood that posting collateral hereunder
with respect to a Regulation AB Request for information deliverable
under
Item 1115(b)(2) will not relieve Party A of its obligations to post
collateral or otherwise take the actions herein provided in respect
of a
Regulation AB Request for information deliverable under Item 1115(b)(1)
of
Regulation AB), provided,
further,
that such ISDA Credit Support Annex and the action taken pursuant
thereto
shall be approved by S&P (for so long as any Certificates are deemed
outstanding under the Pooling and Servicing Agreement and rated by
S&P) and Moody’s (for so long as any Certificates are deemed
outstanding under the Pooling and Servicing Agreement and rated by
Moody’s).
|
|
(ii)
|
“Permitted
Transfer”
means a transfer, in whole but not in part, of all of Party A’s rights and
obligations under this Agreement and which meets all of the following
requirements:
|
|
(A)
|
the
transferee is a recognized dealer in interest rate swaps organized
under
the laws of the United States of America or a jurisdiction located
in the
United States of America (or another jurisdiction reasonably acceptable
to
Party B);
|
|
(B)
|
Except
with respect to a Ratings Event or Further Ratings Event (such events
already subject to the Rating Agency Condition as described above),
S&P (for as long as any Certificates are deemed outstanding under the
Pooling and Servicing Agreement and rated by S&P) and Moody’s (for so
long as any Certificates are deemed outstanding under the Pooling
and
Servicing Agreement and rated by Moody’s) confirm in writing that such
transfer will not result in a reduction or withdrawal of their then
current rating on any outstanding class of Certificates under the
Pooling
and Servicing Agreement;
|
|
(C)
|
neither
an Event of Default with respect to the transferee nor a Termination
Event
would exist immediately after that
transfer;
|
|
(D)
|
the
transferee executes and delivers a written agreement reasonably
satisfactory to Party B in which the transferee, among other things,
legally and effectively accepts all the rights and assumes all the
obligations of Party A under this
Agreement;
|
|
(E)
|
Party
B will not be required to pay to the transferee an 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)) greater than the amount in
respect
of which Party B would have been required to pay to Party A in the
absence
of such transfer; and
|
|
(F)
|
Party
B will not receive a payment from which an amount has been withheld
or
deducted, on account of a Tax under Section 2(d)(i) (except in respect
of
interest under Section 2(e), 6(d)(ii), or 6(e)), in excess of that
which
Party A would have been required to so withhold or deduct in the
absence
of such transfer, unless the transferee would be required to make
additional payments pursuant to Section 2(d)(i)(4) corresponding
to such
withholding or deduction.
|
“Pooling
and Servicing Agreement”
means
that certain Pooling and Servicing Agreement, dated as of September 1, 2006,
by
and among Popular ABS, Inc., a Delaware corporation, as depositor, Equity One,
Inc., a Delaware corporation, as a seller and as servicer, JPMorgan Chase Bank,
N.A., as trustee, and the other sellers named therein relating to the creation
and issuance of the Popular ABS, Inc. Mortgage Pass-Through Certificates, Series
2006-D. Any terms used but not otherwise defined herein or in the 2000 ISDA
Definitions shall have the meanings set forth in the Pooling and Servicing
Agreement.
| (b) |
Effect
of Pooling and Servicing
Agreement.
|
|
(i)
|
Each
of Party A and Party B acknowledges that Party B has entered into
this
Agreement as trustee of the External Trust relating to the Trust
Fund for
the benefit of the Holders of the Senior Certificates and the Subordinate
Certificates (each such term as defined in the Pooling and Servicing
Agreement) under the Pooling and Servicing Agreement. Nothing herein
shall
be construed as requiring the consent of any Holder (as defined in
the
Pooling and Servicing Agreement) for the performance by Party B of
any of
its obligations hereunder and Party A may exercise its rights and
remedies
under this Agreement without the consent of any Holder, except as
otherwise provided in this
Agreement.
|
|
(ii)
|
[RESERVED]
|
|
(iii)
|
Except
as expressly provided in this Agreement for any Permitted Transfer,
Event
of Default, Termination Event or Additional Termination Event, neither
Party A nor Party B may enter into any agreement to transfer or dispose
of
any Transaction, whether in the form of a termination, unwind, transfer,
or otherwise without written confirmation by each of Moody’s (for so long
as any Certificates are deemed outstanding under the Pooling and
Servicing
Agreement and are rated by Moody’s) and S&P (for so long as any
Certificates are deemed outstanding under the Pooling and Servicing
Agreement and are rated by S&P) that such transfer or disposition will
not cause the reduction or withdrawal of their then current rating
on such
Certificates.
|
|
(iv)
|
No
amendment, modification or waiver in respect of this Agreement will
be
effective unless (A) evidenced by a writing executed by each party
hereto,
and (B) Moody’s (for so long as any Certificates are deemed outstanding
under the Pooling and Servicing Agreement and rated by Moody’s) and
S&P (for so long as any Certificates are deemed outstanding under the
Pooling and Servicing Agreement and rated by S&P ) confirm in writing
that such amendment, modification or waiver will not cause the reduction
or withdrawal of their then current rating on such
Certificates.
|
|
(v)
|
Party
B shall promptly provide Party A with copies of any amendment to
the
Pooling and Servicing Agreement and any notice of termination or
liquidation of the Trust Fund (as defined in the Pooling and Servicing
Agreement), provided that the failure to provide such amendments
or
notices shall not constitute an Event of Default
hereunder.
|
|
(c)
|
[RESERVED]
|
|
(d)
|
Limited
Transactions.
Notwithstanding any provision in this Agreement to the contrary,
the
parties hereto agree that the Transaction evidenced by the Confirmation
dated the date hereof (Reference No. N512432N) shall be the only
Transaction governed by this
Agreement.
|
|
(e)
|
Payments.
All
payments to Party B under this Agreement or any Transaction shall
be made
as specified in the applicable
Confirmation.
|
|
(f)
|
Set-off.
Party A and Party B hereby waive any and all right of set-off with
respect
to any amounts due under this Agreement or any
Transaction.
|
|
(g)
|
No
Bankruptcy Petition.
Party A agrees that, prior to the date which is at least one year
and one
day after all Certificates under the Pooling and Servicing Agreement
have
been paid in full, it will not institute against, or join any other
person
or entity in instituting against, Party B or the Trust Fund any
involuntary bankruptcy or insolvency petition or proceeding provided
that
nothing herein shall preclude, or be deemed to estop, Party A from
taking
any action in any case or proceeding voluntarily filed or commenced
by or
on behalf of Party B or in any involuntary case or proceeding after
it has
commenced.
|
|
(h)
|
Compliance
with Regulation AB.
|
|
(i)
Party A agrees and acknowledges that the Depositor is required under
Regulation AB of the Securities Act of 1933, as amended (“Regulation
AB”)
to disclose certain financial and other information regarding Party
A or
its group of affiliated entities, if applicable, depending on the
aggregate “significance percentage” of this Agreement, calculated from
time to time in accordance with Item 1115 of Regulation AB.
|
|
(ii)
Subject to Part 6(a)(i)(C), Party A hereby agrees to cooperate in
a
commercially reasonable manner with any request from the Depositor
or
Party B (each such request, a “Regulation
AB Request”),
acting reasonably, to provide any information and consents pertaining
to
Party A that Depositor or Party B deems necessary in order to provide
the
disclosure required under Regulation AB (together with the information
set
forth on Exhibit
A
to
this Schedule and included in the Prospectus Supplement (as defined
in the
Pooling and Servicing Agreement), the “Counterparty
Disclosure”),
and Party A shall promptly provide or cause to be provided the
Counterparty Disclosure.
|
|
(iii)
With respect to any Counterparty Disclosure provided by or required
to be
provided by Party A, Party A shall indemnify and hold harmless the
Depositor, its respective directors, officers and any person controlling
the Depositor, from and against any and all losses, claims, damages
and
liabilities caused by any untrue statement or alleged untrue statement
of
a material fact contained in the Counterparty Disclosure or caused
by any
omission or alleged omissions to state in such information of a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made
not
misleading.
|
|
(iv)
The Depositor shall be an express third party beneficiary of this
Agreement as if a party hereto to the extent of the Depositor’s rights
under this Part 6(h).
|
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF,
the
parties have executed this Schedule by their duly authorized signatories as
of
the date hereof.
DEUTSCHE
BANK AG, NEW YORK BRANCH
| By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
|
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Director
|
| By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇ | |||
|
Name:
▇▇▇▇▇▇▇▇ ▇▇▇▇
Title:
Vice President
|
JPMORGAN
CHASE BANK, N.A.
not
in its individual capacity, but solely as trustee of the External Trust relating
to the
POPULAR
ABS, INC. MORTGAGE PASS-THROUGH CERTIFICATES, SERIES
2006-D
| By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
Assistant Vice President
|
Exhibit
A
Party
A Disclosure for Prospectus Supplement
Deutsche
Bank Aktiengesellschaft ("Deutsche Bank" or the "Bank") originated from the
reunification of Norddeutsche Bank Aktiengesellschaft, Hamburg,
Rheinisch-Westf’lische Bank Aktiengesellschaft, Duesseldorf and Süddeutsche Bank
Aktiengesellschaft, Munich; pursuant to the Law on the Regional Scope of Credit
Institutions, these had been disincorporated in 1952 from Deutsche Bank which
was founded in 1870. The merger and the name were entered in the Commercial
Register of the District Court Frankfurt am Main on 2 May 1957. Deutsche Bank
is
a banking institution and a stock corporation incorporated under the laws of
Germany under registration number HRB 30 000. The Bank has its registered office
in Frankfurt am Main, Germany. It maintains its head office at ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ and branch offices in Germany and abroad including
in
London, New York, Sydney, Tokyo and an Asia-Pacific Head Office in Singapore
which serve as hubs for its operations in the respective regions.
The
Bank
is the parent company of a group consisting of banks, capital market companies,
fund management companies, a real estate finance company, instalment financing
companies, research and consultancy companies and other domestic and foreign
companies (the "Deutsche Bank Group").
As
of 30
June 2006, Deutsche Bank’s issued share capital amounted to Euro
1,329,684,136.96 consisting of 519,407,866 ordinary shares of no par value.
The
shares are fully paid up and in registered form. The shares are listed for
trading and official quotation on all the German Stock Exchanges. They are
also
listed on the Stock Exchanges in New York, Tokyo and Zurich. The Management
Board has decided to pursue delisting on certain stock exchanges other than
Germany and New York in order to benefit from the integration of financial
markets. In respect of the stock exchanges Amsterdam, Brussels, London,
Luxembourg, Paris and Vienna this decision was already completely
implemented.
As
of 30
June 2006, Deutsche Bank Group had total assets of EUR 1,058,293 million, total
liabilities of EUR 1,029,229 million and total shareholders' equity of EUR
29,064 million on the basis of United States Generally Accepted Accounting
Principles ("U.S. GAAP").
Deutsche
Bank’s long-term senior debt has been assigned a rating of AA- (outlook
positive) by Standard & Poor's, Aa3 (outlook stable) by ▇▇▇▇▇'▇ Investors
Services and AA- (outlook stable) by Fitch Ratings.
Deutsche
Bank is an affiliate of Deutsche Bank Securities Inc., an
underwriter.
|
(One-Way
Pledge by Party A)
|
(ISDA
Agreements Subject to New York Law
Only)
|
ISDA®
International
Swaps and Derivatives Association, Inc.
CREDIT
SUPPORT ANNEX
to
the
Schedule to the
dated
as
of September 28, 2006
between
DEUTSCHE
BANK AG, NEW YORK BRANCH (“Party
A”)
and
JPMORGAN
CHASE BANK, N.A.,
not
in its individual capacity, but solely as trustee of the External Trust relating
to
THE
POPULAR ABS, INC. MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-D
(“Party
B”)
This
Annex supplements, forms part of, and is subject to, the ISDA Master Agreement
referred to above (this “Agreement”), is part of its Schedule and is a Credit
Support Document under this Agreement with respect to each party.
Upon
the
occurrence of an Over-Collateralization Commencement Date, Party A shall be
obligated to transfer Eligible Collateral in accordance with the terms of this
Annex. If Party A has made a Permitted Transfer under this Agreement (including
a Permitted Transfer following the occurrence of an Over-Collateralization
Commencement Date), then
Party A’s obligations to transfer Eligible Collateral under this Annex will
immediately cease and Party B will, upon demand by Party A, return, or cause
its
Custodian to return, all Collateral held under this Annex.
Accordingly,
the parties agree as follows:
Paragraphs
1 - 12. Incorporation
Paragraphs
1 through 12 inclusive of the ISDA Credit Support Annex (Bilateral Form) (ISDA
Agreements Subject to New York Law Only) published in 1994 by the International
Swaps and Derivatives Association, Inc. are incorporated herein by reference
and
made a part hereof, except that Paragraph 1(b) is hereby amended in its entirety
to read as follows:
“(b) Secured
Party and Pledgor.
Notwithstanding anything contained in this Annex to the contrary, (i) all
references in this Annex to the “Secured Party”, and all references to “other
party” in Paragraphs 2, 9 and 11(b) of this Annex, will be to Party B
exclusively, and (ii) all references in this Annex to the “Pledgor” and all
references to “Each party” or “a party” in Paragraphs 2, 9 and 11(b) of this
Annex, will be to Party A exclusively.”
Paragraph
13. Elections and Variables
|
(a)
|
Security
Interest for “Obligations”.
The term “Obligations”
as
used in this Annex includes no obligations of Secured Party and,
for
purposes of the definition of Obligations in Paragraph 12, includes
no
additional obligations of Pledgor.
|
| (b) |
Credit
Support Obligations.
|
(i)
Delivery
Amount, Return Amount and Credit Support Amount.
(A)
“Delivery
Amount”
has the
meaning specified in Paragraph 3(a).
(B) “Return
Amount”
has the
meaning specified in Paragraph 3(b).
(C) “Credit
Support Amount”
for any
Valuation Date associated with an Over-Collateralization Commencement Date
and
any weekly Valuation Date thereafter until termination of this Agreement or
consummation of a Permitted Transfer shall not have its meaning as defined
in
Paragraph 3, but shall mean the greatest of (X) Party A’s Exposure under the
Affected Transactions on that Valuation Date, (Y) the amount of the next payment
due from Party A to Party B under the Affected Transactions on the next
scheduled Payment Date to occur after that Valuation Date under this Agreement
or (Z) one percent of the Transactional Notional Amount in effect on that
Valuation Date.
1
|
(ii)
|
Eligible
Collateral.
The following items will qualify as “Eligible
Collateral”:
|
|
Valuation
Percentage
|
|||||||
|
(A)
|
Cash:
U.S. Dollars in depositary account form.
|
100
|
%
|
||||
|
(B)
|
U.S.
Treasury Securities:
negotiable debt obligations issued by the U.S. Treasury Department
(“Treasuries”)
having a remaining maturity of up to and not more than one
year.
|
98.60
|
%
|
||||
|
(C)
|
Treasuries
having a remaining maturity of greater than 1 year but not more than
5
years.
|
94.10
|
%
|
||||
|
(D)
|
Treasuries
having a remaining maturity of greater than 5 years but not more
than 10
years.
|
90.70
|
%
|
||||
|
(E)
|
Treasuries
having a remaining maturity of greater than 10 years but not more
than 20
years.
|
85.30
|
%
|
||||
|
(F)
|
Treasuries
having a remaining maturity of greater than 20 years but not more
than 30
years.
|
85.30
|
%
|
||||
|
(G)
|
Agency
Securities. negotiable
debt obligations of the Federal National Mortgage Association, (FNMA),
Federal Home Loan Mortgage Corporation (FHLMC), Federal Home Loan
Banks
(FHLB), Federal Farm Credit Banks (FFCB), Student Loan Marketing
Association (SLMA), Tennessee Valley Loan Authority (TVA) (collectively,
“Agency
Securities”)
having a remaining maturity of not more than one year.
|
98.20
|
%
|
||||
|
(H)
|
Agency
Securities having a remaining maturity of greater than 1 year but
not more
than 5 years.
|
93.30
|
%
|
||||
|
(I)
|
Agency
Securities having a remaining maturity of greater than 5 years but
not
more than 10 years.
|
88.60
|
%
|
||||
|
(J)
|
Agency
Securities having a remaining maturity of greater than 10 years but
not
more than 20 years.
|
80.80
|
%
|
||||
|
(K)
|
Agency
Securities having a remaining maturity of greater than 20 years but
not
more than 30 years.
|
80.80
|
%
|
||||
|
(L)
|
FHLMC
Certificates.
Mortgage participation certificates issued by FHLMC evidencing undivided
interests or participations in pools of first lien conventional or
FHA/VA
residential mortgages or deeds of trust, guaranteed by FHLMC, and
having a
remaining maturity of not more than 30 years.
|
93
|
%
|
||||
|
(M)
|
FNMA
Certificates. Mortgage-backed
pass-through certificates issued by FNMA evidencing undivided interests
in
pools of first lien mortgages or deeds of trust on residential properties,
guaranteed by FNMA, having a remaining maturity of not more than
30
years.
|
90
|
%
|
||||
|
(N)
|
GNMA
Certificates.
Mortgage-backed pass-through certificates issued by private entities,
evidencing undivided interests in pools of first lien mortgages or
deeds
of trust on single family residences, guaranteed by the Government
National Mortgage Association (GNMA) with the full faith and credit
of the
United States, and having a remaining maturity of not more than 30
years.
|
90.60
|
%
|
||||
2
(iii)
Other
Eligible Support.
Not
applicable.
(iv)
Thresholds.
(A)
“Independent
Amount” means
for
Pledgor: zero
“Independent
Amount” means
for
Secured Party: zero
(B)
“Threshold”
means,
for Pledgor: zero.
|
(C)
|
“Minimum
Transfer Amount”
is
$100,000 for any Delivery Amount of Pledgor and $100,000 for any
Return
Amount of Secured Party.
|
|
(D)
|
Rounding:
The Delivery Amount and the Return Amount will be rounded down to
the
nearest integral multiple of
$10,000.
|
(c)
Valuation
and Timing.
|
(i)
|
“Valuation
Agent”
means, for purposes of ▇▇▇▇▇▇▇▇▇▇ ▇, ▇(▇)(▇▇), ▇ ▇▇▇ ▇(▇), ▇▇▇
▇▇▇▇▇▇▇.
|
|
(▇▇)
|
“Valuation
Date” means
in connection with an Over-Collateralization Commencement Date, the
second
New York Business Day prior to such Over-Collateralization Commencement
Date (such Over-Collateralization Commencement Date, the “Collateral
Support Commencement Date”) and thereafter any Local Business Day provided
that there shall be one Valuation Date per week on a date selected
by the
Valuation Agent, which shall be the same calendar day each week to
the
extent practicable, on a reasonably consistent basis. If the Delivery
Amount for the Valuation Date associated with the Collateral Support
Commencement Date or weekly Valuation Date equals or exceeds the
Pledgor’s
Minimum Transfer Amount, then the demand by the Secured Party referred
to
in Paragraph 3(a) of this Annex shall be deemed to have been given
(A)
with respect to the Collateral Support Commencement Date, on the
first New
York Business Day preceding the Collateral Support Commencement Date,
prior to the Notification Time, and (B) with respect to the weekly
Valuation Date, on that weekly Valuation Date prior to the Notification
Time, and, subject to the terms and conditions of this Annex, the
Pledgor
will Transfer to the Secured Party the amount of Eligible Collateral
it is
required to Transfer with respect to that Valuation Date in accordance
with Paragraph 3(a) and Paragraph 4(b) of this
Annex.
|
| (ii) |
“Valuation
Time” means
the close of business in New York City on the Local Business Day
before
the Valuation Date or date of calculation as applicable; provided
that the
calculations of Value and Exposure will be made as of approximately
the
same time on the same date.
|
| (iii) |
“Notification
Time”
means 11:00 a.m., New York time, on a Local Business
Day.
|
(d)
Conditions
Precedent and Secured Party’s Rights and Remedies.
No
Specified Conditions apply.
(e)
Substitution.
(i)
"Substitution
Date” has
the
meaning specified in Paragraph 4(d)(ii).
|
(ii)
|
Consent.
The Pledgor is not required to obtain the Secured Party’s consent for any
substitution pursuant to Paragraph
4(d).
|
(f)
Dispute
Resolution.
|
(i)
|
“Resolution
Time”
means 1:00 p.m., New York time, on the Local Business Day following
the
date on which the notice is given that gives rise to a dispute under
Paragraph 5.
|
|
(ii)
|
Value.
For the purpose of Paragraphs 5(i)(C) and 5(ii), the Value of Posted
Credit Support other than Cash will be calculated based upon the
mid-point
between the bid and offered purchase rates or prices for that Posted
Credit Support as reported on the Bloomberg electronic service as
of the
Resolution Time, of if unavailable, as quoted to the Valuation Agent
as of
the Resolution Time by a dealer in that Posted Credit Support of
recognized standing selected in good faith by the Valuation Agent,
which
calculation shall include any unpaid interest on that Posted Credit
Support.
|
3
(iii)
Alternative.
The
provisions of Paragraph 5 will apply.
(g)
Holding
and Using Posted Collateral.
|
(i)
|
Eligibility
to Hold Posted Collateral; Custodians.
Secured
Party will not be entitled to hold Posted Collateral itself, and
instead
the Secured Party will be entitled to hold Posted Collateral through
a
Custodian pursuant to Paragraph 6(b),
provided
that (1) Posted Collateral may be held only in New York City or an
alternative jurisdiction within the United States acceptable to Party
A,
(2) the Custodian shall at all times be a bank or trust company with
total
assets in excess of $10 billion and having a rating assigned to its
unsecured and unsubordinated long-term debt or deposit obligations
of at
least BBB+ from S&P and Baa1 from Moody’s and (3) Posted Collateral
must be held in a segregated and identifiable account. Initially
the
Custodian will be JPMorgan Chase Bank, N.A
.
|
|
(ii)
|
Use
of Posted Collateral.
The provisions of Paragraph 6(c) of the Credit Support Annex will
not
apply to Secured Party and without prejudice to Secured Party’s rights
under Paragraph 8 of the Credit Support Annex, Secured Party will
not take
any action specified in such Section
6(c).
|
(h)
Interest
Amount.
|
(i)
|
Interest
Rate. The
“Interest
Rate” for
any day will be the Federal Funds (Effective) rate published in N.Y.
Federal Reserve Statistical Release H.15(519) for that day (or if
that day
is not a New York Business Day, then for the next preceding New York
Business Day).
|
For
the
purpose of computing the Interest Amount, the amount of interest computed for
each day of the Interest Period shall be compounded daily.
|
(ii)
|
Transfer
of Interest Amount.
The Transfer of the Interest Amount will be made on the first Local
Business Day of each calendar month and on any Local Business Day
that
Posted Collateral in the form of Cash is Transferred to the Pledgor
pursuant to Paragraph 3(b).
|
(iii)
Alternative
to Interest Amount.
The
provisions of Paragraph 6(d)(ii) will apply.
(i)
Additional
Representation(s). Not
applicable.
(j)
Other
Eligible Support and Other Posted Support. Not
applicable.
4
|
(k)
|
Demands
and Notices. All
demands, specifications and notices under this Annex will be made
to a
party as follows unless otherwise specified from time to time by
that
party for purposes of this Annex in a written notice given to the
other
party:
|
To
Pledgor:
Deutsche
Bank AG
▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Global Margin Management
To
Secured Party:
JPMORGAN
CHASE BANK, N.A.,
not
in its individual capacity but solely as
Trustee
of the External Trust relating to
the
Popular ABS, Inc. Mortgage Pass-Through
Certificates,
Series 2006-D
Worldwide
Securities Services/Global Debt
4
New
York Plaza, 6th
Floor
New
York,
New York 10004
Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
With
a copy to:
Equity
One, Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Chief Financial Officer
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
(l) Addresses
for Transfers.
|
(i)
|
For
each Transfer hereunder to Pledgor, instructions will be provided
by
Pledgor for that specific Transfer.
|
|
(ii)
|
For
each Transfer hereunder to Secured Party, instructions will be provided
by
Secured Party for that specific
Transfer.
|
[SIGNATURE
PAGE FOLLOWS]
5
IN
WITNESS WHEREOF
the
parties have executed this Credit Support Annex as of the date
hereof.
DEUTSCHE
BANK AG,
NEW
YORK BRANCH
| By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
|
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Director
|
| By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇ | |||
|
Name:
▇▇▇▇▇▇▇▇ ▇▇▇▇
Title:
Vice President
|
JPMORGAN
CHASE BANK, N.A.,
not
in its individual capacity, but solely as trustee of the External Trust relating
to
THE
POPULAR ABS, INC. MORTGAGE PASS-THROUGH CERTIFICATES, SERIES
2006-D
| By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
Assistant Vice President
|
6
|
Date:
|
September
28, 2006
|
|
To:
|
JPMorgan
Chase Bank, National Association, not in its individual capacity,
but
solely as trustee of the External Trust relating to the Popular ABS,
Inc.
Mortgage Pass-Through Certificates, Series 2006-D
|
|
Attention:
|
Swaps
Documentation Department
|
|||
|
Facsimile
no.:
|
|
Our
Reference:
|
Global
No. N512432N
|
|
Re:
|
Interest
Rate Cap Transaction
|
|
Ladies
and Gentlemen:
|
||
|
The
purpose of this letter agreement is to set forth the terms and conditions
of the Transaction entered into between Deutsche Bank AG ("DBAG")
and
JPMorgan Chase Bank, National Association, not in its individual
capacity,
but solely as trustee of the External Trust relating to the Popular
ABS,
Inc. Mortgage Pass-Through Certificates, Series 2006-D ("Counterparty")
on
the Trade Date specified below (the "Transaction"). This letter agreement
constitutes a "Confirmation" as referred to in the Agreement specified
below.
|
||
|
The
definitions and provisions contained in the 2000 ISDA Definitions
(the
"Definitions") as published by the International Swaps and Derivatives
Association, Inc. are incorporated by reference herein. In the event
of
any inconsistency between the Definitions and this Confirmation,
this
Confirmation will govern.
|
|
For
the purpose of this Confirmation, all references in the Definitions
or the
Agreement to a "Swap Transaction" shall be deemed to be references
to this
Transaction.
|
||
|
1.
This Confirmation supplements, forms part of, and is subject to,
an ISDA
Master Agreement dated as of September 28, 2006, (as the same may
be
amended or supplemented from time to time, the “Agreement”), between DBAG
and Counterparty. All provisions contained in the Agreement shall
govern
this Confirmation except as expressly modified below.
|
|
2.
The terms of the particular Transaction to which this Confirmation
relates
are as follows:
|
|
Notional
Amount:
|
For
each Calculation Period, the lesser of (a) the amount set forth opposite
that Calculation Period on Exhibit I attached hereto and incorporated
by
reference into this Confirmation and (b) the excess of (1) the aggregate
Class Certificate Balance (as defined in the Pooling Agreement referenced
below) of the Primary Certificates (as defined in the Pooling Agreement
referenced below) for the related Distribution Date (as defined in
the
Pooling Agreement referenced below) before taking into account any
distributions of principal to the Primary Certificates on that
Distribution Date over (2) the “Notional Amount,” if any, for that
Calculation Period under the Interest Rate Swap Transaction confirmation
bearing Global No. N512429N, dated September 28, 2006, by and between
the
Counterparty and DBAG; provided, however, that in the case of the
initial
Calculation Period, the Notional Amount shall be the amount set forth
opposite that Calculation Period on Exhibit I attached
hereto.
At
least five (5) New York Business Days prior to each Floating Rate
Payer
Payment Date (commencing with the second Floating Rate Payer Payment
Date), the Counterparty shall provide notice (which may be by email
or
facsimile transmission) to DBAG specifying the aggregate Class Certificate
Balance of the Primary Certificates on the Distribution Date immediately
preceding that Floating Rate Payer Payment Date after giving effect
to all
payments of principal made to the Primary Certificates on such
Distribution Date (the “Notional Amount Notice”).
|
|||
|
Trade
Date:
|
September
18, 2006
|
|
Effective
Date:
|
September
25, 2008
|
|
Termination
Date:
|
August
25, 2013, subject to adjustment in accordance with the Following
Business
Day Convention.
|
|
Fixed
Amounts:
|
|
Fixed
Amount Payer:
|
Counterparty
|
|||
|
Fixed
Amount Payer Payment Date:
|
September
28, 2006
|
|
Fixed
Amount:
|
USD
955,000
|
|
Fixed
Amount Payer Business Days:
|
New
York
|
|
Fixed
Amount Payer Business Day Convention:
|
Following
|
2
|
Floating
Amounts:
|
|
Floating
Rate Payer:
|
DBAG
|
|||
|
Cap
Rate:
|
The
Cap Rate for that Calculation Period, as
set forth in Exhibit I, which is attached hereto and incorporated
by
reference into this Confirmation
|
|
Floating
Rate Payer Period End Dates:
|
The
25th day of each month of each year, commencing September 25, 2008,
through and including the Termination Date
|
|
Floating
Rate Payer Payment Dates:
|
Monthly
on the first New York Business Day prior to each Period End Date;
provided
that the Termination Date shall not be a Payment Date hereunder.
The final
Payment Date shall be the first New York Business Day prior to the
Termination Date.
|
|
Floating
Rate Option:
|
USD-LIBOR-BBA
|
|
Designated
Maturity:
|
One
month
|
|
Spread:
|
None
|
|
Floating
Rate Day Count Fraction:
|
Actual/360
|
|
Reset
Dates:
|
The
first Floating Rate Payer Business Day of each Calculation Period
or
Compounding Period, if Compounding is applicable.
|
|
Compounding:
|
Inapplicable
|
|
Floating
Rate Payer Business Days:
|
New
York
|
|
Floating
Rate Payer Business Day Convention:
|
Following
|
|
3.
Account
Details:
|
|
USD
DBAG Payment Instructions:
|
|
Account
With:
|
DB
Trust Co. Americas, New York
|
|
SWIFT
Code:
|
▇▇▇▇▇▇▇▇
|
|
Favor
Of:
|
Deutsche
Bank AG, New York
|
|
Account
Number:
|
01
473 969
|
|
USD
Counterparty Payment Instructions:
|
|
JPMorgan
Chase Bank, NA
|
||||
|
ABA:
|
▇▇▇▇▇▇▇▇▇
|
|||
|
DDA:
|
507947541
|
|||
|
Ref:
|
Popular
2006-D
|
|||
|
FFC:
|
10228089.7
|
|
4.
Offices:
|
|
The
Office of DBAG for this Transaction is New York, and the address
for
Notional Amount Notices is:
|
3
|
Attention:
Fixed Income Derivatives
|
||
|
Telephone:
▇▇▇ ▇▇▇ ▇▇▇▇
|
||
|
▇▇
▇▇▇▇ ▇▇▇▇▇▇
|
||
|
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|
5.
Calculation
Agent:
|
The
party specified as such in the Agreement, or if not specified therein,
DBAG.
|
|
6.
Additional
Terms
|
|
(i)
No
Liability of the Trustee. It
is expressly understood and agreed by the parties hereto that (a)
this
Confirmation is executed and delivered by JPMorgan Chase Bank, National
Association, not individually or personally but solely as trustee
of the
External Trust relating to the Popular ABS, Inc. Mortgage Pass-Through
Certificates, Series 2006-D, in the exercise of the powers and authority
conferred and vested in it under the Pooling and Servicing Agreement
(the
“Pooling Agreement”) dated as of September 1, 2006, among Popular ABS,
Inc., as depositor, Equity One, Inc., as a seller and servicer, and
other
sellers named therein, and JPMorgan Chase Bank, National Association
as
trustee, (b) each of the representations, undertakings and agreements
herein made on behalf of the Counterparty is made and intended not
as
personal representations, undertakings and agreements of JPMorgan
Chase
Bank, National Association but is made and intended for the purpose
of
binding only the trust created pursuant to the Pooling Agreement
and (c)
under no circumstances shall JPMorgan Chase Bank, National Association
be
personally liable for the payment of any indebtedness or expenses
of the
Counterparty or be liable for the breach or failure of any obligations,
representation, warranty or covenant made or undertaken by the
Counterparty under this
Confirmation.
|
4
|
7.
Please confirm that the foregoing correctly sets forth the terms
of our
agreement by having an authorized officer sign this Confirmation
and
return it via facsimile or e-mail to:
|
|
Attention:
Derivative Documentation
|
||
|
Telephone:
▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
|
||
|
Facsimile:
44 20 7545 9761
|
||
|
E-mail:
▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇
|
|
This
message will be the only form of Confirmation dispatched by us. If
you
wish to exchange hard copy forms of this Confirmation, please contact
us.
|
||
|
Yours
sincerely,
|
||
|
Deutsche
Bank AG
|
||
|
By:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
AVP
|
||
|
By:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇
Title:
AVP
|
||
|
Confirmed
as of the date first written above:
|
||
|
JPMorgan
Chase Bank, National Association, not in its individual capacity,
but
solely as trustee of the External Trust relating to the Popular ABS,
Inc.
Mortgage Pass-Through Certificates, Series 2006-D
|
||
|
By:
|
/s/
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
|
||||
|
Name:
|
▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇
|
||||
|
Title:
|
Assistant
Vice
President
|
5
|
EXHIBIT
I
|
||
|
With
respect to calculating a Floating Amount for any Calculation Period
falling within the periods set forth below, the Notional Amount and
Cap
Rate shall be the amount set forth opposite the relevant period and
underneath the captions Notional Amount and Cap Rate, as
follows:
|
|
From
and including *
|
To
but excluding *
|
Notional
Amount (USD)
|
Cap
Rate
|
|||
|
August
25, 2008
|
September
25, 2008
|
89,599,278.00
|
5.7768%
|
|||
|
September
25, 2008
|
October
25, 2008
|
85,904,452.00
|
5.7489%
|
|||
|
October
25, 2008
|
November
25, 2008
|
82,273,320.00
|
5.7243%
|
|||
|
November
25, 2008
|
December
25, 2008
|
78,762,472.00
|
5.7037%
|
|||
|
December
25, 2008
|
January
25, 2009
|
75,311,927.00
|
5.6880%
|
|||
|
January
25, 2009
|
February
25, 2009
|
71,974,556.00
|
5.6780%
|
|||
|
February
25, 2009
|
March
25, 2009
|
68,719,170.00
|
5.6743%
|
|||
|
March
25, 2009
|
April
25, 2009
|
65,478,348.00
|
5.6779%
|
|||
|
April
25, 2009
|
May
25, 2009
|
62,364,773.00
|
5.6894%
|
|||
|
May
25, 2009
|
June
25, 2009
|
59,593,439.00
|
5.7096%
|
|||
|
June
25, 2009
|
July
25, 2009
|
57,337,139.00
|
5.7376%
|
|||
|
July
25, 2009
|
August
25, 2009
|
55,093,939.00
|
5.7666%
|
|||
|
August
25, 2009
|
September
25, 2009
|
52,911,677.00
|
5.7946%
|
|||
|
September
25, 2009
|
October
25, 2009
|
50,788,694.00
|
5.8211%
|
|||
|
October
25, 2009
|
November
25, 2009
|
52,494,833.00
|
5.8458%
|
|||
|
November
25, 2009
|
December
25, 2009
|
51,771,337.00
|
5.8684%
|
|||
|
December
25, 2009
|
January
25, 2010
|
50,297,482.00
|
5.8884%
|
|||
|
January
25, 2010
|
February
25, 2010
|
48,864,890.00
|
5.9054%
|
|||
|
February
25, 2010
|
March
25, 2010
|
47,472,418.00
|
5.9192%
|
|||
|
March
25, 2010
|
April
25, 2010
|
46,118,958.00
|
5.9292%
|
|||
|
April
25, 2010
|
May
25, 2010
|
44,803,428.00
|
5.9352%
|
|||
|
May
25, 2010
|
June
25, 2010
|
43,524,778.00
|
5.9367%
|
|||
|
June
25, 2010
|
July
25, 2010
|
42,281,986.00
|
5.9344%
|
|||
|
July
25, 2010
|
August
25, 2010
|
41,074,060.00
|
5.9318%
|
|||
|
August
25, 2010
|
September
25, 2010
|
39,900,033.00
|
5.9300%
|
|||
|
September
25, 2010
|
October
25, 2010
|
38,758,965.00
|
5.9290%
|
|||
|
October
25, 2010
|
November
25, 2010
|
37,649,943.00
|
5.9289%
|
|||
|
November
25, 2010
|
December
25, 2010
|
36,572,078.00
|
5.9298%
|
|||
|
December
25, 2010
|
January
25, 2011
|
35,524,506.00
|
5.9319%
|
|||
|
January
25, 2011
|
February
25, 2011
|
34,506,386.00
|
5.9351%
|
|||
|
February
25, 2011
|
March
25, 2011
|
33,516,901.00
|
5.9396%
|
|||
|
March
25, 2011
|
April
25, 2011
|
32,555,256.00
|
5.9455%
|
|||
|
April
25, 2011
|
May
25, 2011
|
31,620,679.00
|
5.9529%
|
|||
|
May
25, 2011
|
June
25, 2011
|
30,712,417.00
|
5.9618%
|
|||
|
June
25, 2011
|
July
25, 2011
|
29,829,739.00
|
5.9720%
|
|||
|
July
25, 2011
|
August
25, 2011
|
28,971,935.00
|
5.9816%
|
|||
|
August
25, 2011
|
September
25, 2011
|
77,244,525.00
|
5.9903%
|
|||
|
September
25, 2011
|
October
25, 2011
|
75,401,244.00
|
5.9979%
|
|||
|
October
25, 2011
|
November
25, 2011
|
73,602,889.00
|
6.0043%
|
|||
|
November
25, 2011
|
December
25, 2011
|
71,848,273.00
|
6.0094%
|
|||
|
December
25, 2011
|
January
25, 2012
|
70,136,308.00
|
6.0133%
|
|||
|
January
25, 2012
|
February
25, 2012
|
68,465,935.00
|
6.0157%
|
|||
|
February
25, 2012
|
March
25, 2012
|
66,836,124.00
|
6.0167%
|
|||
|
March
25, 2012
|
April
25, 2012
|
65,246,211.00
|
6.0160%
|
|||
|
April
25, 2012
|
May
25, 2012
|
63,694,857.00
|
6.0138%
|
|||
|
May
25, 2012
|
June
25, 2012
|
62,181,102.00
|
6.0098%
|
|||
|
June
25, 2012
|
July
25, 2012
|
60,704,015.00
|
6.0044%
|
|||
|
July
25, 2012
|
August
25, 2012
|
59,262,688.00
|
5.9996%
|
|||
|
August
25, 2012
|
September
25, 2012
|
57,856,236.00
|
5.9958%
|
|||
|
September
25, 2012
|
October
25, 2012
|
56,483,798.00
|
5.9931%
|
|||
|
October
25, 2012
|
November
25, 2012
|
55,144,531.00
|
5.9916%
|
|||
|
November
25, 2012
|
December
25, 2012
|
53,837,616.00
|
5.9914%
|
|||
|
December
25, 2012
|
January
25, 2013
|
52,562,255.00
|
5.9925%
|
|||
|
January
25, 2013
|
February
25, 2013
|
51,317,668.00
|
5.9950%
|
|||
|
February
25, 2013
|
March
25, 2013
|
50,103,096.00
|
5.9990%
|
|||
|
March
25, 2013
|
April
25, 2013
|
48,917,799.00
|
6.0046%
|
|||
|
April
25, 2013
|
May
25, 2013
|
47,761,057.00
|
6.0118%
|
|||
|
May
25, 2013
|
June
25, 2013
|
46,632,165.00
|
6.0207%
|
|||
|
June
25, 2013
|
July
25, 2013
|
45,530,439.00
|
6.0309%
|
|||
|
July
25, 2013
|
August
25, 2013
|
44,455,209.00
|
6.0408%
|
| * For Floating Amounts: All dates listed above (with the exception of the Effective Date) are subject to adjustment in accordance with the Following Business Day Convention |
6