ISDAâ International Swaps and Derivatives Association, Inc. MASTER AGREEMENT dated as of April 18, 2007
(Multicurrency
- Cross Border)
ISDAâ
International
Swaps
and
Derivatives
Association, Inc.
MASTER
AGREEMENT
dated
as
of April
18, ▇▇▇▇
|
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
(“Party
A”)
|
U.S.
BANK NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY
AS
SUPPLEMENTAL INTEREST TRUST TRUSTEE ON BEHALF OF BAYVIEW FINANCIAL
MORTGAGE PASS-THROUGH TRUST 2007-A SUPPLEMENTAL INTEREST
TRUST
(“Party
B”)
|
have
entered and/or anticipate entering into one or more transactions
(each a “Transaction”) that are or will be governed
by this Master Agreement, which includes the schedule (the
“Schedule”), and the documents and other confirming evidence (each a
“Confirmation”) exchanged between the parties confirming those
Transactions.
Accordingly,
the parties agree as follows:
I. 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.
II. Obligations
A. General
Conditions.
1. 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.
2. 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.
3. 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:—
1. in
the
same currency; and
2. 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.
1. 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:—
a. promptly
notify the other party (“Y”)
of
such
requirement;
b. 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;
c. 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
d. 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:—
i. the
failure by Y to comply with or perform any agreement
contained in Section
4(a)(i), 4(a)(iii)
or 4(d);
or
ii. the
failure of a representation made by Y pursuant to Section 3(f) to be
accurate
and true
unless such failure would not have occurred but for (I) any action taken
by
a
taxing authority,
or brought in a court of competent jurisdiction, on or after the date on which
a
Transaction
is entered into (regardless of whether such action is taken or brought with
respect
to a party to this Agreement) or (II) a Change in Tax Law.
2. Liability.
If:—
a. 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);
b. X
does
not so deduct or withhold; and
c. 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.
III. 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.
1. 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;
2. 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;
3. 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;
4. 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
5. 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.
IV. 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:—
1. any
forms, documents or certificates relating to taxation specified in
the
Schedule or any Confirmation;
2. any
other
documents specified in the Schedule or any Confirmation; and
3. upon
reasonable demand by such other party, any form or document that may be required
or reasonably requested in writing in order to allow such other party
or
its
Credit Support Provider to make
a
payment under this Agreement or any applicable Credit Support
Document without any deduction or withholding for or on account of any Tax
or
with such deduction or withholding at
a
reduced
rate (so long as the completion, execution or submission of such form or
document would not materially prejudice the legal or commercial position of
the
party in receipt of such demand), with
any
such form or document to be accurate and completed in a manner reasonably
satisfactory to
such
other party and to be executed and to be delivered with any reasonably required
certification,
in
each
case by the date specified in the Schedule or such Confirmation or, if none
is
specified, as soon as reasonably practicable.
B. Maintain
Authorisations.
It
will
use all reasonable efforts to maintain in full force and effect all
consents
of any governmental or other authority that are required to be obtained
by it with respect to this Agreement
or any Credit Support Document to which it is a party and will use all
reasonable efforts
to obtain any
that
may become necessary in the future.
C. Comply
with Laws.
It
will
comply in all material respects with all applicable laws and orders to
which
it
may be subject if failure so to comply would materially impair its ability
to perform its obligations under this Agreement or any Credit Support Document
to which it is a party.
D. Tax
Agreement.
It
will
give notice of any failure of a representation made by it under Section
3(f)
to
be
accurate and true promptly upon learning of such failure.
E. Payment
of Stamp Tax. Subject
to Section 11, it will pay any
Stamp
Tax levied or imposed upon it or in respect of its execution or performance
of
this Agreement by a jurisdiction in which it is incorporated, organised,
managed and controlled, or considered to have its seat, or in which a branch
or
office through which
it
is acting for the purpose of this Agreement is located (“Stamp Tax
Jurisdiction”) and will indemnify the
other
party against any Stamp Tax levied or imposed upon the other party or in respect
of the other party’s execution
or performance of this Agreement by any such Stamp Tax Jurisdiction which is
not
also a Stamp Tax
Jurisdiction with respect to the other party.
V. 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:—
1. 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;
2. 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;
3. Credit
Support Default.
a. 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;
b. 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
c. 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;
4. 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;
5. 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);
6. 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);
7. Bankruptcy.
The
party, any Credit Support Provider of such party or any applicable Specified
Entity
of
such party:—
a. 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
8. 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.—
a. 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
b. 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:—
1. 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):—
a. 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
b. 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;
2. 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));
3. 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);
4. 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
5. 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.
VI. 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.
1. 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.
2. 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.
3. 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.
4. Right
to Terminate.
If:—
a. 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
b. 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.
1. 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.
2. 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.
1. 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.
2. 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.
1. Events
of Default.
If the
Early Termination Date results from an Event of Default:—
a. 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.
b. 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.
c. 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 over (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.
d. 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.
2. Termination
Events. If the
Early
Termination Date results from a Termination Event:—
a. 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.
b. Two
Affected Parties. If there
are
two Affected Parties:—
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
if Loss
applies, each party will determine its Loss in respect of this Agreement (or,
if
fewer
than all the Transactions are being terminated, in respect of all Terminated
Transactions)
and an amount will be payable equal to one-half of the difference between the
Loss of the party with the higher Loss (“X”)
and
the
Loss of the party with the lower Loss
(“Y”).
If
the
amount payable is a positive number, Y will pay it to X; if it is a negative
number, X will
pay
the absolute value of that amount to Y.
3. 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).
4. 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.
VII. 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.
VIII. Contractual
Currency
A. Payment
in the Contractual Currency.
Each
payment under this Agreement will be made in the relevant
currency specified in this Agreement for that payment (the “Contractual
Currency”). To the extent permitted
by applicable law, any obligation to make payments under this Agreement in
the
Contractual Currency
will not be discharged or satisfied by any tender in any currency other than
the
Contractual Currency,
except to the extent such tender results in the actual receipt by the party
to
which payment is owed, acting in a reasonable manner and in good faith in
converting the currency so tendered into the Contractual Currency,
of the full amount in the Contractual Currency of all amounts payable in respect
of this Agreement. If
for
any reason the amount in the Contractual Currency so received falls short of
the
amount in the Contractual
Currency payable in respect of this Agreement, the party required to make the
payment will, to the
extent permitted by applicable law, immediately pay such additional amount
in
the Contractual Currency as may be necessary to compensate for the shortfall.
If
for any reason the amount in the Contractual Currency so received exceeds the
amount in the Contractual Currency payable in respect of this Agreement, the
party receiving the payment will refund promptly the amount of such
excess.
B. Judgments.
To the
extent permitted by applicable law, if any judgment or order expressed in a
currency
other than the Contractual Currency is rendered (i) for the payment of any
amount owing in respect of
this
Agreement, (ii) for the payment of any amount relating to any early termination
in respect of this Agreement
or (iii) in respect of a judgment or order of another court for the payment
of
any amount described in
(i) or
(ii) above, the party seeking recovery, after recovery in full of the aggregate
amount to which such party
is
entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the Contractual
Currency received by such party as a consequence of sums
paid
in such other currency and will refund promptly to the other party any excess
of
the Contractual Currency
received by such party as a consequence of sums paid in such other currency
if
such shortfall or such
excess arises or results from any variation between the rate of exchange at
which the Contractual Currency
is converted into the currency of the judgment or order for the purposes of
such
judgment or order and
the
rate of exchange at which such party is able, acting in a reasonable manner
and
in good faith in converting
the currency received into the Contractual Currency, to purchase the Contractual
Currency with the
amount of the currency of the judgment or order actually received by such party.
The term “rate of exchange”
includes, without limitation, any premiums and costs of exchange payable in
connection with the purchase
of or conversion into the Contractual Currency.
C. Separate
Indemnities. To the
extent permitted by applicable law, these indemnities constitute separate
and independent obligations from the other obligations in this Agreement, will
be enforceable as separate
and independent causes of action, will apply notwithstanding any indulgence
granted by the party to which any payment is owed and will not be affected
by
judgment being obtained or claim or proof being made
for
any other sums payable in respect of this Agreement.
D. Evidence
of
Loss. For
the
purpose of this Section 8, it will be sufficient for a party to demonstrate
that
it
would have suffered a loss had an actual exchange or purchase been
made.
IX. 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.
1. 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.
2. 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.
X. 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.
XI. 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.
XII. 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:—
1. if
in
writing and delivered in person or by courier, on the date it is delivered;
2. if
sent
by telex, on the date the recipient’s answerback is received;
3. 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);
4. 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
5. 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.
Dated:
April 18, 2007
Rate
Swap Transaction
Re:
BNY
Reference No. 39191
Ladies
and Gentlemen:
The
purpose of this letter agreement (“Agreement”)
is to
confirm the terms and conditions of the rate Swap Transaction entered into
on
the Trade Date specified below (the “Transaction”)
between The Bank of New York (“BNY”),
a
trust company duly organized and existing under the laws of the State of New
York, and U.S. Bank National Association, not in its individual capacity, but
solely as Supplemental Interest Trust Trustee for the Bayview Financial Mortgage
Pass-Through Trust 2007-A Supplemental Interest Trust (in such capacity, the
“Supplemental
Interest Trust Trustee”
or
the
“Counterparty”),
under
the Pooling and Servicing Agreement, dated as of April 1, 2007, among Bayview
Financial, L.P., as Sponser, Bayview
Financial Securities Company, LLC,, as Depositor, ▇▇▇▇▇ Fargo Bank, N.A., as
Master Servicer and U.S. Bank National Association, as Trustee (the
“Pooling
and Servicing Agreement”).
This
Agreement, which evidences a complete and binding agreement between you and
us
to enter into the Transaction on the terms set forth below, constitutes a
“Confirmation”
as
referred to in the “ISDA
Form Master Agreement”
(as
defined below), as well as a “Schedule” as referred to in the ISDA Form Master
Agreement.
1. Form
of Agreement.
This
Agreement is subject to the 2000
ISDA Definitions (the
“Definitions”),
as
published by the International Swaps and Derivatives Association, Inc.
(“ISDA”).
Any
reference to a “Swap Transaction” in the Definitions is deemed to be a reference
to a “Transaction” for purposes of this Agreement, and any reference to a
“Transaction” in this Agreement is deemed to be a reference to a “Swap
Transaction” for purposes of the Definitions.
You and
we have agreed to enter into this Agreement in lieu of negotiating a Schedule
to
the 1992 ISDA Master Agreement (Multicurrency—Cross Border) form (the
“ISDA
Form Master Agreement”).
An
ISDA Form Master Agreement, as modified by the Schedule terms in Paragraph
4 of
this Confirmation (the “Master
Agreement”),
shall
be deemed to have been executed by you and us on the date we entered into the
Transaction. For
the
avoidance of doubt, the Transaction described herein shall be the sole
Transaction governed by such ISDA Form Master Agreement.
Except
as otherwise specified, references herein to Sections shall be to Sections
of
the Master Agreement, and references to Paragraphs shall be to paragraphs of
this Agreement. In the event of any inconsistency between the provisions of
this
Agreement and the Definitions or the Master Agreement, this Agreement shall
prevail for purposes of the Transaction. Capitalized terms not otherwise defined
herein or in the Definitions or the Master Agreement shall have the meaning
defined for such term in the Pooling and Servicing Agreement.
2. Certain
Terms.
The
terms of the particular Transaction to which this Confirmation relates are
as
follows:
|
Type
of Transaction:
|
Rate Swap | |
|
Notional
Amount:
|
USD 100,000,000 | |
|
Trade
Date:
|
April 10, 2007 | |
|
Effective
Date:
|
April 18, 2007 | |
|
Termination
Date:
|
April 28, 2011, subject to adjustment in accordance with the Following Business Day Convention | |
| FIXED AMOUNTS | ||
|
Fixed
Rate Payer:
|
Counterparty | |
|
Fixed
Rate:
|
4.9965% | |
Page
1 of
18
|
Fixed
Rate Day Count Fraction:
|
30/360 | |
|
Fixed
Rate Payer Period End Dates:
|
The 28th day of each month, beginning on May 28, 2007 and ending on the Termination Date, subject to adjustment in accordance with the Following Business Day Convention. | |
|
Fixed
Rate Payer Payment Dates:
|
Early Payment shall be applicable. The Fixed Rate Payer Payment Date shall be one (1) Business Day preceding each Fixed Rate Payer Period End Date. | |
| FLOATING AMOUNTS | ||
|
Floating
Rate Payer:
|
BNY | |
|
Floating
Rate Day Count Fraction:
|
Actual/360 | |
|
Floating
Rate Option:
|
USD-LIBOR-BBA | |
|
Designated
Maturity:
|
One month | |
|
Spread:
|
Inapplicable | |
|
Floating
Rate Payer Period End Dates:
|
The 28th day of each month, beginning on May 28, 2007 and ending on the Termination Date, subject to adjustment in accordance with the Following Business Day Convention. | |
|
Floating
Rate Payer Payment Dates:
|
Early Payment shall be applicable. The Floating Rate Payer Payment Date shall be one (1) Business Day preceding each Floating Rate Payer Period End Date. | |
|
Reset
Dates:
|
The first day of each Calculation Period | |
|
Compounding:
|
Inapplicable | |
|
Business
Days:
|
New York | |
|
Additional
Payment:
|
Counterparty shall pay USD 13,000.00 to BNY for value April 18, 2007. | |
3. Additional
Provisions:
Reliance.
Each
party hereto is hereby advised and acknowledges that the other party has engaged
in (or refrained from engaging in) substantial financial transactions and has
taken (or refrained from taking) other material actions in reliance upon the
entry by the parties into the Transaction being entered into on the terms and
conditions set forth herein.
4. Provisions
Deemed Incorporated in a Schedule to the Master Agreement:
Part
1. Termination
Provisions.
(a) "Specified
Entity"
in
relation to BNY or the Counterparty shall mean: none.
(b) “Specified
Transaction”
will
have the meaning specified in Section 14.
Page
2 of
18
(c) Applicability. The
following provisions apply or do not apply to the parties as specified
below:
(i)
Section
5(a)(i) (Failure
to Pay or Deliver):
(A)
will
apply to BNY; and
(B)
will
apply to the Counterparty.
(ii)
Section
5(a)(ii) (Breach
of Agreement):
(A)
will
apply to BNY; and
(B)
will
not
apply to the Counterparty.
(iii)
Section
5(a)(iii) (Credit
Support Default):
(A)
will
apply to BNY; and
(B)
will
not
apply to the Counterparty.
(iv)
Section
5(a)(iv) (Misrepresentation):
(A)
will
apply to BNY; and
(B)
will
not
apply to the Counterparty.
(v)
Section
5(a)(v) (Default
under Specified Transaction):
(A)
will
not
apply to BNY;
(B)
will
not
apply to the Counterparty.
(vi)
Section
5(a)(vi) (Cross
Default):
(A)
will
apply to BNY; and
(B)
will
not
apply to the Counterparty.
For
the
purposes of Section 5(a)(vi):
“Specified
Indebtedness”
will
have the meaning specified in Section 14, except that it shall not include
indebtedness in respect of deposits received.
“Threshold
Amount”
means,
3% of consolidated shareholders equity of BNY and its subsidiaries determined
in
accordance with generally accepted accounting principles of the United States
consistently applied as of the last day of the fiscal quarter ended immediately
prior to the occurrence or existence of an event for which a Threshold Amount
is
applicable under Section 5(a)(vi).
(vii)
Section
5(a)(vii) (Bankruptcy):
(A)
will
apply to BNY; and
(B) will
not
apply to the Counterparty with respect to subclauses (2), (4) (but only if
the
proceeding or petition is instituted or presented by BNY or its affiliates),
(7), (8) (but subclause (8) will not apply to the Counterparty only to the
extent that subclauses (2), (4) and (7) do not apply to the Counterparty) and
(9) of Section 5(a)(vii), and the remaining provisions of Section 5(a)(vii)
will
apply to the Counterparty; and in subclause (6) the words “trustee” and
“custodian” will not include the Supplemental Interest Trust Trustee and the
words “seeks or” will be deleted.
(viii)
Section
5(a)(viii) (Merger
without Assumption):
(A)
will
apply to BNY; and
(B)
will
apply to the Counterparty.
Page
3 of
18
(ix)
Section
5(b)(i) (Illegality):
(A) will
apply to BNY; and
(B) will
apply to the Counterparty.
(x) Section
5(b)(ii) (Tax
Event):
(A) will
apply to BNY; and
(B) will
apply to the Counterparty;
provided
that the
words “(x) any action taken by a taxing authority, or brought in a court of
competent jurisdiction, on or after the date on which a Transaction is entered
into (regardless of whether such action is taken or brought with respect to
a
party to this Agreement) or (y)” shall be deleted.
(xi) Section
5(b)(iii) (Tax
Event upon Merger):
(A) will
apply to BNY, provided,
that
BNY shall not be entitled to designate an Early Termination Date by reason
of a
Tax Event upon Merger in respect of which it is the Affected Party; and
(B) will
apply to the Counterparty.
(xii) Section
5(b)(iv) (Credit
Event upon Merger):
(A) will
not
apply to BNY; and
(B) will
not
apply to the Counterparty.
(xiii) Section
5(b)(v) (Additional
Termination Event):
(A) will
apply to BNY with respect to Part 1(g)(iv) and (v); and
(B) will
apply to the Counterparty with respect to Parts 1(g)(i), (ii), and
(iii).
(d) The
"Automatic
Early Termination"
provision of Section 6(a):
(A) will
not
apply to BNY; and
(B) will
not
apply to the Counterparty.
(e) Payments
on Early Termination.
For the
purpose of Section 6(e), the Second Method and Market Quotation will apply.
For
such purpose, for so long as the Certificates are rated by ▇▇▇▇▇’▇, if BNY is
the Affected Party in respect of an Additional Termination Event or a Tax Event
Upon Merger or the Defaulting Party in respect of any Event of Default (but
not,
in any case, in respect of a Termination Event arising from an Illegality or
Tax
Event), the following provisions shall apply:
(i) The
definitions of “Market Quotation” and “Settlement Amount” are amended in their
entirety to read as follows:
“Market
Quotation”
means,
with respect to one or more Terminated Transactions, an offer capable when
made
of becoming legally binding upon acceptance made by a Qualified Transferee
for
an amount that would be paid to the Counterparty (expressed as a negative
number) or by the Counterparty (expressed as a positive number) in consideration
of an agreement between the Counterparty and such Qualified Transferee to enter
into a transaction with commercial terms substantially the same as those of
this
Agreement (save for the exclusion of provisions relating to Transactions that
are not Terminated Transactions) (which shall be determined by the Counterparty,
acting in a commercially reasonable manner), that would have the effect of
preserving the economic equivalent for the Counterparty of any payment or
delivery (whether the underlying obligation was absolute or contingent and
assuming the satisfaction of each applicable condition precedent) by the parties
under Section 2(a)(i) in respect of such Terminated Transactions or group of
Terminated Transactions that would, but for the occurrence of the relevant
Early
Termination Date, have been required after that date (such transaction, a
“Replacement
Transaction”).
For
this purpose, Unpaid Amounts in respect of the Terminated Transaction or group
of Transactions are to be excluded but, without limitation, any payment or
delivery that would, but for the relevant Early Termination Date, have been
required (assuming satisfaction of each applicable condition precedent) after
that Early Termination Date is to be included.
Page
4 of
18
“Settlement
Amount”
means,
with respect to any Early Termination Date, an amount (as determined by the
Counterparty) equal to the Termination Currency Equivalent of the amount
(whether positive or negative) of any Market Quotation for the relevant
Terminated Transaction or group of Terminated Transactions that is accepted
by
the Counterparty so as to become legally binding, Provided that:
(1) If,
on
the day falling ten Local Business Days after the day on which the Early
Termination Date is designated or such later day as the Counterparty may specify
in writing to BNY (but in either case no later than the Early Termination Date)
(such day the “Latest
Settlement Amount Determination Day”),
no
Market Quotation for the relevant Terminated Transaction or group of Terminated
Transactions has been accepted by the Counterparty so as to become legally
binding and one or more Market Quotations have been made and remain capable
of
becoming legally binding upon acceptance, the Settlement Amount shall equal
the
Termination Currency Equivalent of the amount (whether positive or negative)
of
the lowest of such Market Quotations; and
(2) If,
on
the Latest Settlement Amount Determination Day, no Market Quotation for the
relevant Terminated Transaction or group of Terminated Transactions is accepted
by the Counterparty so as to become legally binding and no Market Quotations
have been made and remain capable of becoming legally binding upon acceptance,
the Settlement Amount shall equal the Counterparty’s Loss (whether positive or
negative and without reference to any Unpaid amounts) for the relevant
Terminated Transaction or group of Terminated Transactions.
(ii) At
any
time on or before the Latest Settlement Amount Determination Day at which two
or
more Market Quotations remain capable of becoming legally binding upon
acceptance, the Counterparty shall be entitled to accept only the lowest of
such
Market Quotations.
(iii) if
the
Counterparty requests BNY in writing to obtain Market Quotations, BNY shall
use
its reasonable efforts to do so before the Latest Settlement Amount
De-termination Day.
(iv) If
the
Settlement Amount is a negative number, Section 6(e)(i)(3) shall be deleted
in
its entirety and replaced with the following:
“Second
Method and Market Quotation.
If
Second Method and Market Quotation apply, (1) the Counterparty shall pay to
BNY
an amount equal to the absolute value of the Settlement Amount in respect of
the
Terminated Transactions, (2) the Counterparty shall pay to BNY the Termination
Currency Equivalent of the Unpaid Amounts owing to BNY and (3) BNY shall pay
to
the Counterparty the Termination Currency Equivalent of the Unpaid Amounts
owing
to the Counterparty, provided that, (i) the amounts payable under (2) and (3)
shall be subject to netting in accordance with Section 2(c) and (ii)
notwithstanding any other provision of this Agreement, any amount payable by
BNY
under (3) shall not be netted-off against any amount payable by the Counterparty
under (1).”
(f)
“Termination
Currency”
means
United States Dollars.
Page
5 of
18
(g) “Additional
Termination Event”
will
apply.
The
following shall constitute Additional Termination Events, and the party
specified shall be the Affected Party with respect thereto:—
(i) Termination
of Trust Fund.
The
Trust, Supplemental Interest Trust or Trust Fund shall be terminated pursuant
to
any provision of the Pooling and Servicing Agreement (including, without
limitation, by exercise of the option to purchase and giving of notice under
Sections 10.01, 10.02 and 10.03 of the Pooling and Servicing
Agreement). The
Early
Termination Date with respect to such Additional Termination Event shall be
the
Distribution Date upon which the Trust and the Supplemental Interest Trust
or
Trust Fund is terminated and final payment is made in respect of the
Certificates. The Counterparty shall be the sole Affected Party. However, each
of BNY and the Counterparty may designate an Early Termination Date in respect
of this Additional Termination Event.
(ii) Inability
to Pay Certificates.
The
Trust is unable to pay or fails or admits in writing its inability to pay (i)
on
any Distribution Date, any Current Interest with respect to the Senior
Certificates or (ii) by the Distribution Date immediately following the maturity
date for the Mortgage Loan with the latest maturity date, principal with respect
to the Senior Certificates, in either case to the extent required pursuant
to
the terms of the Pooling and Servicing Agreement to be paid to the Senior
Certificates. The Counterparty shall be the sole Affected Party.
(iii) Amendment
of Pooling and Servicing Agreement.
The
amendment of the Pooling and Servicing Agreement in a manner which could have
a
material adverse effect on BNY without first obtaining the prior written consent
of BNY (such consent not to be unreasonably withheld), where such consent is
required under the Pooling and Servicing Agreement. Counterparty shall be the
sole Affected Party.
(iv) Collateralization
Event or Ratings Event. A
Collateralization Event or Ratings Event has occurred and is continuing and
BNY
fails to take the actions provided in Part 5(i)(ii)(A) and (B) within the time
periods set out therein; provided
that an
Additional Termination Event shall not be deemed to occur by virtue of a breach
of Part 5(i)(ii)(B) with respect to a Moody’s Ratings Event unless and until
such Moody’s Ratings Event has continued for 30 or more Business Days and at
least one Qualified Transferee has made an offer which remains capable of
becoming legally binding upon acceptance to enter into a Permitted Transfer
or
other Replacement Transaction. BNY shall be the sole Affected Party. A failure
to post collateral in accordance with the provisions of the Credit Support
Annex
by BNY when it has elected or is required to post collateral following the
occurrence of a Moody’s Ratings Event, shall be subject to the provisions of
Section 5(a)(iii) and shall not be treated as an Additional Termination
Event.
(v) Regulation
AB.
BNY
shall fail to comply with the provisions of Section 3 of the Disclosure
Agreement dated as of April 13, 2007, among Bayview Financial Securities
Company, LLC (the “Depositor”), U.S. Bank National Association, as trustee of
the Bayview Financial Mortgage Pass-Through Trust 2007-A (the “Issuing Entity”),
Bayview Financial, L.P. (the “Sponsor”) and BNY, within the time provided for
therein. BNY shall be the sole Affected Party.
(h) Timing
of Payments by the Counterparty upon Early Termination.
Except
to the extend provided otherwise herein, notwithstanding anything to the
contrary in Section 6(d)(ii), to the extent that all or a portion (in either
case, the “Unfunded
Amount”)
of any
amount that is calculated as being due in respect of any Early Termination
Date
under Section 6(e) from the Counterparty to BNY will be paid by the Counterparty
from amounts other than any upfront payment paid to the Counterparty by an
Eligible Replacement that has entered a Replacement Transaction with the
Counterparty, then such Unfunded Amount shall be due on the next subsequent
Distribution Date following the date on which the payment would have been
payable as determined in accordance with Section 6(d)(ii), and on any subsequent
Distribution Dates until paid in full (or if such Early Termination Date is
the
final Distribution Date, on such final Distribution Date); provided,
that if
the date on which the payment would have been payable as determined in
accordance with Section 6(d)(ii) is a Distribution Date, such payment will
be
payable on such Distribution Date.
Page
6 of
18
The
Counterparty shall not effectively designate an Early Termination Date unless
and until it has given prior written notice thereof to each Rating
Agency.
Part
2. Tax
Representations and Certain Tax-related Provisions.
(a) Payer
Representations.
For the
purpose of Section 3(e), BNY and the Counterparty makes the following
representations:
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)) to be made by it to the
other party under this Agreement. In making this representation, it may rely
on:
(i) the
accuracy of any representations made by the other party pursuant to Section
3(f);
(ii) the
satisfaction of the agreement contained in Section 4 (a)(i) or 4(a)(iii) and
the
accuracy and effectiveness of any document provided by the other party pursuant
to Section 4 (a)(i) or 4(a)(iii); and
(iii) the
satisfaction of the agreement of the other party contained in Section 4(d),
provided that it shall not be a breach of this representation where reliance
is
placed on clause (ii) and the other party does not deliver a form or document
under Section 4(a)(iii) by reason of material prejudice of its legal or
commercial position.
(b) Payee
Representations.
For the
purpose of Section 3(f), BNY and the Counterparty make the following
representations.
(i) The
following representation will apply to BNY:
(x)
It is
a “U.S. person” (as that term is used in Section 1.1441-4(a)(3)(ii) of the
United States Treasury Regulations (“Treas.
Reg.”))
for
United States federal income tax purposes, (y) it is a trust company duly
organized and existing under the laws of the State of New York, and (y) its
U.S.
taxpayer identification number is ▇▇▇▇▇▇▇▇▇.
(ii) The
following representation will apply to the Counterparty:
None.
(c) Additional
Amounts Not Payable by the Counterparty.
The
Counterparty shall not be required to pay any additional amounts pursuant to
Section 2(d)(i)(4).
(d) Indemnifiable
Tax.
The
definition of “Indemnifiable Tax” in Section 14 is amended in its entirety to
read as follows:
“Indemnifiable
Tax”
means
in relation to payments by BNY any Tax and in relation to payments by the
Counterparty no Tax.
Part
3. Agreement
to Deliver Documents.
For
the
purpose of Section 4(a):
(a) Tax
forms, documents or certificates to be delivered are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to be delivered
|
||
|
BNY
and Counterparty
|
A correct,
complete and executed Internal Revenue Service Form W-9, with respect
to
BNY, and W-9, W-8ECI, or W-8IMY, with appropriate attachments, as
applicable, with respect to the Counterparty, or any other or successor
form, in each case that establishes an exemption from deduction or
withholding obligations, and any other document reasonably
requested to allow the other party to make payments under this Agreement
without any deduction or withholding for or on the account of any
tax.
|
(i)
Prior to the first scheduled Payment Date; (ii) in the case of a
U.S.
Internal Revenue Service Form W-8ECI, W-8IMY, and W-8BEN that does
not
include a U.S. taxpayer identification number in line 6, before December
31 of each third succeeding calendar year, (iii) promptly upon reasonable
demand by the other party; and (iv) promptly upon learning that any
form
previously provided by to the other party has become obsolete or
incorrect.
|
Page
7 of
18
(b) Other
documents to be delivered are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to be delivered
|
Covered
by Section 3(d) Representation
|
|||
|
BNY
|
A
certificate of an authorized officer of the party, as to the incumbency
and authority of the respective officers of the party signing this
Agreement, any relevant Credit Support Document, or any Confirmation,
as
the case may be.
|
Upon
the execution and delivery of this Agreement
|
Yes
|
|||
|
Counterparty
|
(i)
a copy of the executed Pooling and Servicing Agreement, (ii) an incumbency
certificate verifying the true signatures and authority of the person
or
persons signing this Agreement on behalf of the Counterparty, and
(iii) a
certified copy of the authorizing resolution (or equivalent authorizing
documentation) of Trustee which sets forth the authority of each
signatory
to the Confirmation signing on its behalf and the authority of such
party
to enter into Transactions contemplated and performance of its obligations
hereunder.
|
With
respect to (i) upon the execution and delivery of the Pooling and
Servicing Agreement, and with respect to (ii) and (iii) upon the
execution
and delivery of this Agreement
|
Yes
|
|||
|
BNY
|
A
legal opinion as to enforceability of this Agreement and any Confirmation
evidencing a Transaction hereunder.
|
Upon
the execution and delivery of this Agreement and such
Confirmation
|
No
|
|||
|
Counterparty
|
A
legal opinion as to the enforceability of this Agreement and any
Confirmation evidencing a Transaction hereunder.
|
Upon
the execution and delivery of this Agreement and such
Confirmation
|
No
|
Page
8 of
18
Part
4. Miscellaneous.
(a) Addresses
for Notices.
For the
purpose of Section 12(a):
Address
for notices or communications to BNY:
The
Bank
of New York
Swaps
and
Derivative Products Group
Global
Market Division
▇▇
▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇
with
a
copy to:
The
Bank
of New York
Swaps
and
Derivative Products Group
▇▇
▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tele:
▇▇▇-▇▇▇-▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇/5837
(For
all
purposes)
A
copy of
any notice or other communication with respect to Sections 5 or 6 should also
be
sent to the addresses set out below:
The
Bank
of New York
Legal
Department
▇▇▇
▇▇▇▇
▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
General Counsel
Address
for notices or communications to the Counterparty:
U.S.
Bank
National Association
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇.
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Structured Finance -
Telephone:
▇▇▇-▇▇▇-▇▇▇▇
Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
With
a
copy to:
Bayview
Financial, L.P.
▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇ ▇▇▇▇▇▇
E-mail:
▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
(For
all
purposes.)
(b) Process
Agent.
For the
purpose of Section 13(c):
BNY
appoints as its Process Agent:— not applicable.
The
Counterparty appoints as its Process Agent:— not applicable.
(c) Offices. The
provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch
Party.
For the
purpose of Section 10(c):
BNY
is a
Multibranch Party and will enter into each Transaction
only
through the following Office:― New York (for all Transactions).
Page
9 of
18
The
Counterparty is not a Multibranch Party.
(e)
Calculation
Agent. BNY;
provided, that if an Event of Default with respect to BNY has occurred
and
continuing, Counterparty shall have the right to select a Reference Market
maker
to act as Calculation Agent, with any cost of such third-party being paid
by
BNY.
(f) “Credit
Support Document”
Credit
Support Document means in relation to:—
BNY: The
Credit Support Annex hereto and any Qualified Guaranty.
Counterparty: Not
applicable.
(g) “Credit
Support Provider”
means
in relation to:
BNY: The
guarantor under any Qualified Guaranty.
Counterparty: Not
Applicable.
(h) Governing
Law.
This
Agreement will be governed by and construed in accordance with the laws of
the
State of New York without reference to choice of law doctrine other than New
York General Obligations Law Sections 5-1401 and 5-1402.
(i) Netting
of Payments; Modification of Section 2(a)(iii)(1).
Subparagraph (ii) of Section 2(c) will apply. Section 2(a)(iii)(1) is amended
by
deleting “or Potential Event of Default”.
(j) “Affiliate”
will
have the meaning specified in Section 14, provided,
that,
the Counterparty shall not be deemed to have any Affiliates for purposes of
this
Agreement, including for purposes of Section 6(b)(ii) hereof.
(k) Additional
Representations.
Section
3
is hereby amended by adding after Section 3(f) the following
subsections:
“(g)
Relationship
Between Parties.
(1) Nonreliance.
It is
not relying on any statement or representation of the other party regarding
the
Transaction (whether written or oral), other than the representations expressly
made in this Agreement or the Confirmation in respect of that
Transaction.
(2) Evaluation
and Understanding.
(i) It
is
acting for its own account and has the capacity to evaluate (internally or
through independent professional advice) the Transaction and has made its own
decision to enter into the Transaction; it is not relying on any communication
(written or oral) of the other party as investment advice or as a recommendation
to enter into such transaction; it being understood that information and
explanations related to the terms and conditions of such transaction shall
not
be considered investment advice or a recommendation to enter into such
transaction. No communication (written or oral) received from the other party
shall be deemed to be an assurance or guarantee as to the expected results
of
the transaction; and
(ii) It
understands the terms, conditions and risks of the Transaction and is willing
and able to accept those terms and conditions and to assume (and does, in fact
assume) those risks, financially and otherwise.
(3) Principal.
The
other
party is not acting as a fiduciary or an advisor for it in respect of this
Transaction.
(h) Exclusion
from Commodity Exchange Act.
(1)
It is
an “eligible contract participant” within the meaning of Section 1a(12) of the
Commodity Exchange Act, as amended; (2) this Agreement and each Transaction
is
subject to individual negotiation by such party; and (3) neither this Agreement
nor any Transaction will be executed or traded on a “trading facility” within
the meaning of Section 1a(33) of the Commodity Exchange Act, as
amended.
Page
10
of 18
(i) Swap
Agreement.
Each
Transaction is a “swap agreement” as defined in 12 U.S.C. Section
1821(e)(8)(D)(vi) and a “covered swap agreement” as defined in the Commodity
Exchange Act (7 U.S.C. Section 27(d)(1)).
Part
5. Other
Provisions.
(a) Waiver
of Jury Trial.
Each
party waives any right it may have to a trial by jury in respect of any
Proceedings relating to this Agreement or any Credit Support
Document.
(b) Recording
of Conversations.
Each
party (i) consents to the recording of telephone conversations between the
trading, marketing and other relevant personnel of the parties in connection
with this Agreement or any potential Transaction, (ii) agrees to obtain any
necessary consent of, and give any necessary notice of such recording to, its
relevant personnel and (iii) agrees, to the extent permitted by applicable
law,
that recordings may be submitted in evidence in any Proceedings.
(c) Severability.
If any
term, provision, covenant, or condition of this Agreement, or the application
thereof to any party or circumstance, shall be held to be invalid or
unenforceable (in whole or in part) for any reason, the remaining terms,
provisions, covenants, and conditions hereof shall continue in full force and
effect as if this Agreement had been executed with the invalid or unenforceable
portion eliminated, so long as this Agreement as so modified continues to
express, without material change, the original intentions of the parties as
to
the subject matter of this Agreement and the deletion of such portion of this
Agreement will not substantially impair the respective benefits or expectations
of the parties. The parties shall endeavor to engage in good faith negotiations
to replace any invalid or unenforceable term, provision, covenant or condition
with a valid or enforceable term, provision, covenant or condition, the economic
effect of which comes as close as possible to that of the invalid or
unenforceable term, provision, covenant or condition.
(d) Set-off.
All
payments under this Agreement shall be made without set-off or counterclaim,
except as provided in Section 2(c), Section 6 or the provisions hereof relating
to Market Quotation and Loss, or Paragraph 8 of the Credit Support Annex.
Section 6(e) is amended by deleting the following sentence: "The amount, if
any,
payable in respect of an Early Termination Date and determined pursuant to
this
Section will be subject to any Set-off." For the avoidance of doubt, if more
than one Transaction is entered into under this Agreement, nothing herein is
intended to prevent the determination of a Settlement Amount with respect to
all
such Transactions pursuant to Section 6 (as modified hereby).
(e) Failure
to Pay or Deliver.
Section
5(a)(i) is hereby amended by replacing the word “third” by the word “second” in
the third line thereof.
(f) Non-Recourse.
Notwithstanding any provision herein or in this Agreement to the contrary,
the
obligations of the Supplemental Interest Trust hereunder are limited recourse
obligations of the Supplemental Interest Trust, payable solely from the Swap
Account. In the event that the Swap Account and proceeds thereof should be
insufficient to satisfy all claims outstanding and following the realization
of
the Swap Account and the distribution of the proceeds thereof in accordance
with
the Pooling and Servicing Agreement, any claims against or obligations of the
Supplemental Interest Trust under this Agreement or any confirmation hereunder
still outstanding shall be extinguished and thereafter not revive. This
provision shall survive the termination of this Agreement.
(g) Limitation
on Institution of Bankruptcy Proceedings.
BNY
shall not institute against or cause any other person to institute against,
or
join any other person in instituting against the Counterparty, the Depositor
or
the Supplemental Interest Trust, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, under any of the laws of the United
States or any other jurisdiction, for a period of one year and one day (or,
if
longer, the applicable preference period) following indefeasible payment in
full
of the Certificates. This provision shall survive the termination of this
Agreement.
Page
11
of 18
(h) Transfer,
Assignment; Amendment.
Notwithstanding the provisions of Sections 6(b)(ii) and 7, no novation,
assignment or transfer of any Transaction shall be permitted by either party
unless (i) it is a Permitted Transfer or the Rating Agency Condition is
satisfied with respect thereto, and (ii) each Rating Agency and the
non-assigning party has received prior written notice thereof. The consent
of
the Counterparty shall not be required for a Permitted Transfer and the
Counterparty shall take all steps reasonably requested by BNY (at the expense
of
BNY) to effect a Permitted Transfer. A “Permitted
Transfer”
means
a
novation or assignment to or entry into another form of Replacement Transaction
pursuant to which a Qualified Transferee acquires and assumes or enters into
a
Replacement Transaction by a written instrument in respect of all the
Transactions and the rights, liabilities, duties and obligations of BNY
hereunder without modification of the terms hereof (other than parties,
effective date of said transfer, and tax payee representations of BNY) and
with
respect to which (i) there is no adverse effect on netting or set-off rights,
(ii) each Rating Agency receives prior written notice thereof, and (iii) neither
BNY nor the transferee will be required to withhold or deduct on account of
any
Tax from any payments under this Agreement in excess of what would have been
required to be withheld or deducted in the absence of such transfer.
Notwithstanding the provisions of Section 9(b), each amendment, modification
or
waiver in respect of this Agreement shall be subject to the Rating Agency
Condition.
(i) Ratings
Downgrade.
(i) Definitions.
For
purposes of each Transaction:
(A) “Rating
Agency Condition”
means,
with respect to any action taken or to be taken hereunder, a condition that
is
satisfied when each of ,Fitch, Inc. or Fitch Ratings, Ltd., or Derivative Fitch,
Inc. or Derivative Fitch Ltd. or another of their subsidiaries, or any successor
or successors thereto (“Fitch”),
▇▇▇▇▇’▇ Investors Service Inc. (“Moody’s”)
and
Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc. (“S&P”)
(each
a “Rating
Agency”,
and
the rating condition with respect to it, the, “Fitch
Rating Condition”,
“▇▇▇▇▇’▇
Rating Condition”
and
“S&P
Rating Condition”,
respectively) has confirmed in writing to the Supplemental Interest Trust
Trustee that such action will not result in withdrawal, reduction or other
adverse action with respect to any then-current rating by such Rating Agency
of
the Certificates.
(B) “Qualifying
Ratings”
means,
with respect to the debt of any entity, (1) (x) a short-term unsecured and
unsubordinated debt rating of at least “P-1”, and a long-term unsecured and
unsubordinated debt of at least ”A2” (or, if it has no short-term unsecured and
unsubordinated debt rating, a long term rating of at least “A1”) by Moody’s
(“Moody’s
First Level Qualifying Ratings”),
and
(y) a short-term unsecured and unsubordinated debt rating of at least “P-2”, and
a long-term unsecured and unsubordinated debt of at least ”A3” (or, if it has no
short-term unsecured and unsubordinated debt rating, a long term rating of
at
least “A3”) by Moody’s (“Moody’s
Second Level Qualifying Ratings”);
and
(2) a short-term unsecured and unsubordinated debt rating of at least “A-1” , or
if it does not have a short-term rating, a long-term unsecured and
unsubordinated debt rating of at least “A+” by S&P (“S&P
Qualifying Ratings”);
and
(3) a short-term unsecured and unsubordinated debt rating of at least “F1” by
Fitch and a long-term unsecured and unsubordinated debt rating of at least
“A”
by Fitch (“Fitch
Qualifying Ratings”).
(C) A
“Collateralization
Event”
shall
occur as to BNY if, with respect to the ratings of the long-term and short-term
unsecured and unsubordinated debt of both BNY (if such debt of BNY is rated)
and
the guarantor under each Qualified Guaranty (if any) assigned by a Rating
Agency: (1) the short-term rating is “P-2” or below, or the long-term rating is
”A3” or below, or, if neither BNY nor the guarantor under any Qualified Guaranty
has a short-term rating, the long term rating is “A2” or below, as assigned by
Moody’s (a “Moody’s
Collateralization Event”);
or
(2) the short-term rating is “A-2” or below, or, if neither BNY nor the
guarantor under any Qualified Guaranty has a short-term rating, the long-term
rating is “A” or below, as assigned by S&P (an “S&P
Collateralization Event”);
or
(3) the short-term rating is “F2” or below or the long-term rating is “A-“ or
below as assigned by Fitch (a “Fitch
Collateralization Event”)..
Page
12
of 18
(D) A
“Ratings
Event”
shall
occur as to BNY if, with respect to the ratings of the long-term and short-term
unsecured and unsubordinated debt of both BNY (if such debt of BNY is rated)
and
the guarantor under each Qualified Guaranty (if any) assigned by a Rating
Agency: (1) the short-term rating is withdrawn or is “P-3” or below or the
long-term rating is “Baa1”, or, if neither BNY nor the guarantor under any
Qualified Guaranty has a short-term rating, the long term rating is withdrawn
or
is “Baa1” or below, as assigned by Moody’s (a “Moody’s
Ratings Event”);
or
(2) the short-term rating is below “A-3”, or, if neither BNY nor the guarantor
under any Qualified Guaranty has a short-term rating, the long term rating
is
withdrawn or is “BB+” or below, as assigned by S&P (an “S&P
Ratings Event”);
or
(3) the short-term rating is below “F3” and the long-term rating is withdrawn or
is“BBB” or below, as assigned by Fitch (a “Fitch
Ratings Event”).
(E) “Qualified
Transferee”
means
a
transferee of a novation or assignment or a party (other than the Counterparty)
that enters into another form of Replacement Transaction that is a Reference
Market-maker (“dealer” in the definition thereof meaning a “dealer in notional
principal contracts” as defined in Treas. Reg. Section 1.1001-4) (1) that has
Moody’s Second Level Qualifying Ratings, S&P Qualifying Ratings and Fitch
Qualifying Ratings, or (2) whose present and future obligations owing to the
Counterparty are guaranteed pursuant to a Qualified Guaranty.
(F) “Qualified
Guaranty”
means
an unconditional and irrevocable guaranty of payment (and not of collection)
and
the performance of the other obligations of BNY (or a Qualified Transferee,
as
applicable) hereunder by a third party having Moody’s Second Level Qualifying
Ratings, S&P Qualifying Ratings, and Fitch Qualifying Ratings (“Qualified
Guarantor”)
providing, inter alia,
that
payment thereunder shall be made as provided and on the conditions set forth
in
Section 2(d) as modified hereunder (substituting references to BNY as “X” with
the guarantor as “X” and “this Agreement” with such guaranty, respectively) (or,
in lieu of such provisions relating to tax, a law firm has given a legal opinion
confirming that none of the guarantor’s payments to the Counterparty under such
guaranty will be subject to withholding for Tax).
(ii) Actions
to be Taken.
(A) If a
Collateralization Event occurs, then BNY shall, at its own expense, no later
than the earlier of thirty (30) Business Days thereafter in case of a Moody’s
Collateralization Event or thirty (30) calendar days thereafter in case of
an
S&P Collateralization Event or Fitch Collateralization Event:
(1) post
collateral (commencing within the times set forth herein) in accordance with
the
Credit Support Annex for so long as the Collateralization Event continues;
or
(2) subject
to the S&P Rating Condition, novate, assign or transfer the Transactions to
or replace the Transactions with Replacement Transactions with a Qualified
Transferee (having the Moody’s First Level Qualifying Ratings and the S&P
Qualifying Ratings); or
(3) subject
to the S&P Rating Condition, obtain a Qualified Guaranty (provided by a
guarantor having the Moody’s First Level Qualifying Ratings and the S&P
Qualifying Ratings).
(B) If
a
Ratings Event occurs, then BNY shall at its own expense, no later than the
earlier of thirty (30) Business Days thereafter in case of a Moody’s Ratings
Event or ten (10) Business Days thereafter in case of an S&P Ratings Event
or Fitch Ratings Event, and subject to the S&P Rating Condition:
(1) novate,
assign or transfer the Transactions to or replace the Transactions with
Replacement Transactions with a Qualified Transferee, or
(2) obtain
a
Qualified Guaranty.
(C) With
respect to (A) and (B) above: (1) BNY shall post collateral in accordance with
the Credit Support Annex and the times set forth herein for so long as a
Collateralization Event or Ratings Event has occurred (or exists from the time
BNY becomes a party hereto) and continues, and such posting of collateral shall
not be deemed to cure a Rating Event or to extend the time within which any
other action is required to be taken under (B) above; (2) if a Ratings Event
occurs, then BNY shall at its own expense, use commercially reasonable efforts
to take one of the actions referred to in (B) above as soon as reasonably
practicable (but subject to the times set forth herein); and (3) if the debt
of
BNY is unrated because a Rating Agency has withdrawn such rating while any
Transaction is outstanding under this Agreement, and if there is no Qualified
Guaranty in effect at such time, then such withdrawal shall be treated as a
Ratings Event unless the Rating Agency Condition is satisfied with respect
thereto.
Page
13
of 18
(j) [Reserved.]
(k) Supplemental
Interest Trust Trustee’s Capacity.
It is
expressly understood and agreed by the parties hereto that, insofar as this
Agreement and any confirmation evidencing a Transaction hereunder is executed
by
U.S. Bank National Association , (i) this Agreement and such confirmation are
executed and delivered by U.S. Bank National Association, not in its individual
capacity but solely as Supplemental Interest Trust Trustee of the Supplemental
Interest Trust pursuant to the Pooling and Servicing Agreement in the exercise
of the powers and authority conferred upon and vested in it thereunder, and
pursuant to instruction set forth therein, (ii) each of the representations,
undertakings and agreements herein or therein made on behalf of the Supplemental
Interest Trust is made and intended not as a personal representation,
undertaking or agreement of U.S. Bank National Association but is made and
intended for the purpose of binding only the Supplemental Interest Trust, and
(iii) under no circumstances will U.S. Bank National Association, in its
individual capacity, be personally liable for the payment of any indebtedness
or
expenses or be personally liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken under this Agreement
or
any such confirmation
(l) Supplemental
Interest Trust Trustee’s Representation.
U.S.
Bank National Association ,
as
Supplemental Interest Trustee of the Supplemental Interest Trust, represents
and
warrants that:
It
has
been directed under the Pooling and Servicing Agreement to enter into this
Agreement and each confirmation evidencing a Transaction hereunder as
Supplemental Interest Trust Trustee on behalf of the Supplemental Interest
Trust.
5. Account
Details and Settlement Information:
Payments
to BNY:
The
Bank
of New York
Derivative
Products Support Department
▇▇
▇▇▇
▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇
ABA
#▇▇▇▇▇▇▇▇▇
Account
#▇▇▇-▇▇▇▇-▇▇▇
Reference:
Interest Rate Swap
Payments
to Counterparty:
U.S.
Bank
National Association
St.
▇▇▇▇,
MN
ABA
No.:
▇▇▇ ▇▇▇ ▇▇▇
DDA:
173103322058
Ref:
Bayview 2007-A
Attn:
▇▇▇▇ ▇▇▇▇▇▇▇
Page
14
of 18
BNY
will,
unless otherwise directed by the Supplemental Interest Trust Trustee,
make
all payments hereunder to the Supplemental Interest Trust Trustee.
Payment
made to the Supplemental Interest Trust Trustee
at the
account specified herein or to another account specified in writing by the
Supplemental Interest Trust Trustee
shall
satisfy the payment obligations of BNY hereunder to the extent of such
payment.
6.
Counterparts.
This
Agreement may be executed in several counterparts, each of which shall be deemed
an original but all of which together shall constitute one and the same
instrument.
Please
confirm that the foregoing correctly sets forth the terms of our agreement
by
executing this agreement and returning it via facsimile to Derivative Products
Support Dept., Attn: ▇▇▇▇▇ Au-▇▇▇▇▇ at ▇▇▇-▇▇▇-▇▇▇▇/5837. Once we receive this
we will send you two original confirmations for execution.
Page
15
of 18
We
are
very pleased to have executed this Transaction with you and we look forward
to
completing other transactions with you in the near future.
Very
truly yours,
THE
BANK OF NEW YORK
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Vice President
Page
16
of 18
The
Counterparty, acting through its duly authorized signatory, hereby agrees to,
accepts and confirms the terms of the foregoing as of the Trade
Date.
U.S.
BANK NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS
SUPPLEMENTAL INTEREST TRUST TRUSTEE FOR THE BAYVIEW FINANCIAL MORTGAGE
PASS-THROUGH TRUST 2007-A SUPPLEMENTAL INTEREST TRUST
By:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Assistant Vice President
Page
17
of 18
Exhibit
A
to Confirmation No. 39191
Credit
Support Annex to follow this page
Page
18
of 18
| (Bilateral Form) |
(ISDA
Agreements Subject to New York Law
Only)
|
ISDA®
International
Swaps and Derivatives Association, Inc.
CREDIT
SUPPORT ANNEX
to
the
Schedule to the
Dated
as
of April 18, 2007
between
|
The
Bank Of New York
|
and
|
U.S.
BANK NATIONAL ASSOCIATION,
NOT
IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS SUPPLEMENTAL INTEREST TRUST
TRUSTEE ON BEHALF OF THE BAYVIEW
FINANCIAL MORTGAGE PASS-THROUGH TRUST 2007-A SUPPLEMENTAL INTEREST
TRUST
|
|
established
as a banking organization
under
the laws of the State of New York
|
The
Supplemental Interest Trust is a common law trust established under
the
laws of the State of New York.
|
|
|
(“Party
A”)
|
(“Party
B”)
|
|
|
_________________________________
|
_____________________________________
|
This
Annex supplements, forms part of, and is subject to,
the
Master Agreement specified in the Confirmation(s) (BNY Ref. No. 39191), dated
even date herewith (the “Agreement”),
is
part of the Schedule deemed incorporated therein and is a Credit Support
Document under the Master Agreement with respect to Party A.
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, (a) the term
“Secured Party” as used in this Annex means only Party B, (b) the term “Pledgor”
as used in this Annex means only Party A, (c) only Party A makes the pledge
and
grant in Paragraph 2, the acknowledgment in the final sentence of Paragraph
8(a)
and the representations in Paragraph 9, and (d) only Party A will be required
to
make Transfers of Eligible Credit Support hereunder.”
1
Paragraph
13.
Certain
Definitions.
As used
herein, “Fitch”,
“▇▇▇▇▇’▇”,
“S&P”,
“Rating
Agency”,
“Collateralization
Event”,
“Fitch
Collateralization Event”;
“Moody’s
Collateralization Event”,
“S&P
Collateralization Event”;
“Ratings
Event”,
“Fitch
Ratings Event”,
“Moody’s
Ratings Event”,
and
“S&P
Ratings Event”
have
the meanings assigned in the Schedule.
(a) Security
Interest for “Obligations.” The
term
“Obligations” as
used
in this Annex includes the following additional obligations: Not
applicable.
(b) Credit
Support Obligations.
(i) Delivery
Amount, Return Amount and Credit Support Amount.
(A) “Delivery
Amount” has
the
meaning specified in Paragraph 3(a) except
that the words “upon a demand made by the Secured Party on or promptly following
a Valuation Date” shall be deleted and replaced by the words “on each Valuation
Date on which the Threshold for Party A is Zero, commencing no later than the
Valuation Date falling on or after the earliest of (i) in the case of a Moody’s
Collateralization Event or Moody’s Ratings Event, on the 30th Local Business Day
thereafter, (ii) in the case of an S&P Collateralization Event, the
thirtieth (30th) calendar day thereafter or, if it is not a Local Business
Day,
the next preceding day that is a Local Business Day, and (iii) in the case
of an
S&P Ratings Event, commencing promptly after publication by S&P of the
applicable change in rating.”
(B) “Return
Amount”
has
the
meaning specified in Paragraph 3(b).
(C) “Credit
Support Amount”
in
Paragraph 3(b), shall be amended in its entirety to read as
follows:
“‘Credit
Support Amount’
means,
for any Valuation Date after and during the continuance of a Collateralization
Event or Ratings Event, (i) the Secured Party's Exposure for that Valuation
Date, plus
(ii) the
Independent Amount applicable to the Pledgor (with respect to all Affected
Transactions), if any, minus
(iii)
the Pledgor's Threshold; provided,
however,
that
the Credit Support Amount will be deemed to be zero whenever the calculation
of
the Credit Support Amount yields a number less than zero; and, provided further,
that,
if a Moody’s Ratings Event with respect to Party A and the guarantor under each
Qualified Guaranty (if any) has occurred and is continuing and at least thirty
(30) Business Days have elapsed since the last time it was not the case that
a
Moody’s Ratings Event had occurred and was continuing with respect to Party A
and the guarantor under each Qualified Guaranty (if any), the Credit Support
Amount will not be less than the greater of zero and the aggregate amount of
the
net payments due from Pledgor in respect of all following scheduled Payments
(each such net payment being the greater of zero and the amount of the payment
due to be made by the Pledgor under Section 2(a) on a Payment date less the
amount of any payment due to be made by the Secured Party under Section 2(a)
on
the same Payment Date after giving effect to any applicable netting under
Section 2(c) (each a “Net
Payment”))
with
respect to all Affected Transactions.”
(ii) Eligible
Collateral and Valuation Percentage. The
items
and Valuation Percentages with respect to each Rating Agency set forth in
Schedule 1A,or Schedule 1B or Schedule 1C, as applicable, will be “Eligible
Collateral” and
the
applicable “Valuation
Percentage”
with
respect thereto for Party A.
(iii) Other
Eligible Support. The
following items will qualify as“Other
Eligible Support” for
the
party specified: Not Applicable.
2
(iv) Thresholds.
(A) “Independent
Amount”
means
with respect to Party B: Zero; and, with respect to Party A for any Valuation
Date: an amount equal to the product of the aggregate Notional Amount
outstanding at the beginning of the related Calculation Period under the
applicable Affected Transactions:
|
(1)
|
in
respect of a Moody’s Collateralization Event or a Moody’s Ratings Event,
the percentage set forth in Schedule 2A, Schedule 2B or Schedule
2C, as
applicable (“Moody’s
Independent Amount”);
and
|
|
(2)
|
in
respect of an S&P Collateralization Event or an S&P Ratings Event,
(x) with respect to basis risk swaps, the product of the S&P
Volatility Buffer and 0.1, and (y) with respect to all other Transactions
the S&P Volatility Buffer determined
using the table set forth in Schedule 3 (“S&P
Independent Amount”);
and
|
|
(3)
|
in
respect of a Fitch Collateralization Event or a Fitch Ratings Event,
the
Fitch Volatility Cushion determined using the table set forth in
Schedule
4(“Fitch
Independent Amount”).
|
(B) “Threshold”
means
for each party: an infinite number; provided,
that
the Threshold shall be zero at any time that Party A elects or is required
to
post collateral pursuant to Part 5(i)(ii) of the Schedule.
(C) “Minimum
Transfer Amount” means
with respect to Party A and Party B: $100,000; provided,
that
the Minimum Transfer Amount for such party shall be $50,000 in respect of an
S&P Collateralization Event and an S&P Ratings Event if the aggregate
principal balance of the rated Certificates is $50,000,000 or less on the
applicable Valuation Date, and shall be zero upon the occurrence and during
the
continuance of an Event of Default, Termination Event, Additional Termination
Event, or Specified Condition with respect to such party.
(D) Rounding.
The
Delivery Amount will be rounded up to the nearest integral multiple of $1,000
and the Return Amount will be rounded down to the nearest integral multiple
of
$1,000.
(v) Calculation
of Delivery Amount and Return Amount.
The
Credit Support Amount will be calculated separately for each Rating Agency
then
rating the Certificates in accordance with the provisions relating to such
Rating Agency set forth in this Paragraph 13(b), and Party A will Transfer
the
highest Delivery Amount and Party B will Transfer the lowest Return Amount
of
those so calculated, provided,
that
the Return Amount will be reduced to such amount as necessary so that Transfer
of a Delivery Amount will not be required immediately after the Transfer of
such
Return Amount.
(c) Valuation
and Timing.
(i) “Valuation
Agent”
means,
Party A, provided,
that if
any Event of Default with respect to Party A has occurred and is continuing,
then any designated third party mutually agreed to by the parties shall be
the
Valuation Agent until such time as Party A is no longer a Defaulting
Party.
(ii) “Valuation
Date”
means
each Local Business Day.
(iii) “Valuation
Time”
means:
o the
close
of business in the city of the Valuation Agent on the Valuation Date or date
of
calculation, as applicable;
x the
close
of business 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.
3
(iv) “Notification
Time”
means
1:00 p.m., New York time, on a Local Business Day.
(d) Conditions
Precedent and Secured Party’s Rights and Remedies.
(i)
Illegality and (ii) Additional Termination Events will be a “Specified
Condition”
for
Party A (as the Affected Party) (but not for purposes of Paragraph 8(d)), and
(iii) Tax Event and (iv) Tax Event Upon Merger will not be a “Specified
Condition
for
Party A.
(e) Substitution.
(i) “Substitution
Date”
has
the
meaning specified in Paragraph 4(d)(ii).
(ii) Consent. If
specified here as applicable, then the Pledgor must obtain the Secured Party’s
consent for any substitution pursuant to Paragraph 4(d):
Applicable.
(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
will
be calculated as follows: as set forth for other purposes in Paragraph
12.
(iii) Alternative. The
provisions of Paragraph 5 will apply, except to the following extent: (A)
pending the resolution of a dispute, Transfer of the undisputed Value of
Eligible Credit Support or Posted Credit Support involved in the relevant demand
will be due as provided in Paragraph 5 if the demand is given by the
Notification Time, but will be due on the second Local Business Day after the
demand if the demand is given after the Notification Time; and (B) the Disputing
Party need not comply with the provisions of Paragraph 5(II)(2) if the amount
to
be Transferred does not exceed the Disputing Party’s Minimum Transfer
Amount.
(g) Holding
and Using Posted Collateral.
(i) Eligibility
to Hold Posted Collateral; Custodians.
The
Secured Party will not be entitled to hold Posted Collateral itself, but will
hold Posted Collateral in an identifiable segregated account which is an
Eligible Account through a Custodian (which may be the Supplemental Interest
Trust Trustee and which shall at all times be a financial institution as
specified under Section 6.14 of the Pooling and Servicing Agreement. If not
so
specified, the Custodian shall be a
commercial bank or trust company which is unaffiliated with Party B organized
under the laws of the United States or any state thereof, having assets of
at
least $10 billion and a long term debt or a deposit rating of at least Baa2
from
Moody's and A from S&P. For so long as the Certificates are rated by
S&P, any Custodian other than the Supplemental Interest Trust Trustee shall
have a short-term debt or deposit rating of at least A-1, or, if it has no
short-term rating, a long-term debt or deposit rating of at least A, from
S&P.
Initially,
the Custodian for Party B is: U.S. Bank National Association
(ii) Use
of Posted Collateral. The
provisions of Paragraph 6(c) will not apply to the Secured Party; therefore,
Party B will not have any of the rights specified in Paragraph 6(c)(i) or 6
(c)(ii).
(h) Distributions
and Interest Amount.
(i) Interest
Rate.
The “Interest
Rate”, with
respect to Eligible Collateral in the form of Cash will be the actual rate
of
interest earned by the Counterparty or the Custodian of the Cash invested at
the
direction of Party A in accordance with Paragraph 13(1)(vi).
(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), subject
to the receipt and availability of such funds.
4
(iii) Alternative
to Interest Amount. The
provisions of Paragraph 6(d)(ii) will apply.
(i) Other
Eligible Support and Other Posted Support.
(i) “Value”
with
respect to Other Eligible Support and Other Posted Support means:
Inapplicable.
(ii) “Transfer”
with
respect to Other Eligible Support and Other Posted Support means:
Inapplicable.
(j) Demands
and Notices. All
demands, specifications and notices under this Annex will be made pursuant
to
the Notices Section of this Agreement, unless otherwise specified here:
| (i) | Party A: |
Not
applicable.
|
| (ii) | Party B: |
U.S.
Bank National Association
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
▇▇.
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|
Attention:
Structured Finance
|
|
Telephone:
▇▇▇-▇▇▇-▇▇▇▇
|
Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
(k) Addresses
for Transfers.
|
Party
A:
|
For
Cash: To be provided
|
|
For
Eligible Collateral: To be provided
|
|
Party
B:
|
To
be provided
|
(l) Other
Provisions.
(i) Additional
Definitions.
As used
in this Annex:—
"Equivalent
Collateral"
means,
with respect to any security constituting Posted Collateral, a security of
the
same issuer and, as applicable, representing or having the same class, series,
maturity, interest rate, principal amount or liquidation value and such other
provisions as are necessary for that security and the security constituting
Posted Collateral to be treated as equivalent in the market for such
securities;
"Local
Business Day"
means:
(i) any day on which commercial banks are open for business (including dealings
in foreign exchange and foreign currency deposits) in New York, and (ii) in
relation to a Transfer of Eligible Collateral, a day on which the clearance
system agreed between the parties for the delivery of Eligible Collateral is
open for acceptance and execution of settlement instructions (or in the case
of
a Transfer of Cash or other Eligible Collateral for which delivery is
contemplated by other means, a day on which commercial banks are open for
business (including dealings for foreign exchange and foreign currency deposits)
in New York and such other places as the parties shall agree);
(ii) Transfer
Timing.
(A) Paragraph
4(b) shall be deleted and replaced in its entirety by the following paragraph:
"Subject to Paragraphs 4(a) and 5 and unless otherwise specified, if a demand
for the Transfer of Eligible Credit Support or Posted Credit Support is made
by
the Notification Time, then the relevant Transfer will be made not later than
the close of business on the second Local Business Day thereafter; if a demand
is made after the Notification Time then the relevant Transfer will be made
not
later than the close of business on the third Local Business Day
thereafter."
5
(B) Paragraph
6(d)(1) shall be amended so that the reference therein to "the following Local
Business Day" shall be replaced by reference to "the second Local Business
Day
thereafter".
(iii) Events
of Default.
Paragraph 7 shall be deleted and replaced in its entirety by the following
paragraph:
“For
the
purposes of Section 5(a)(iii) of this Agreement, an Event of Default will exist
with respect to a party if that party fails (or fails to cause its Custodian)
to
make, when due, any Transfer of Eligible Credit Support, Posted Credit Support
or the Interest Amount, as applicable, required to be made by it and that
failure continues for two Local Business Day after the notice of that failure
is
given to that party; provided,
that,
with
respect to a failure to Transfer Eligible
Credit Support,
at least
(x) 30 Local Business Days have elapsed after a Ratings Event has occurred,
or
(y) 10 Business Days have elapsed after an S&P Ratings Event or a Fitch
Ratings Event, and such failure is not remedied on or before the third Local
Business Day after notice of such failure is given to Party A”.
(iv) No
Counterclaim.
A
party's rights to demand and receive the Transfer of Eligible Collateral as
provided hereunder and its rights as Secured Party against the Posted Collateral
or otherwise shall be absolute and subject to no counterclaim, set-off,
deduction or defense in favor of the Pledgor except as contemplated in Sections
2 and 6 of the Agreement and Paragraph 8 of this Annex.
(v) Holding
Collateral.
The
Secured Party shall cause any Custodian appointed hereunder to open and maintain
a segregated account which is an [Eligible Account] (the “Swap
Collateral Account”)
and to
hold, record and identify all the Posted Collateral therein and, subject to
Paragraphs 6(c) and 8(a), such Posted Collateral shall at all times be and
remain the property of the Pledgor and shall at no time constitute the property
of, or be commingled with the property of, the Secured Party or the
Custodian.
(vi) Investment
of Cash Posted Collateral.
Cash
Posted Collateral shall be invested in Eligible Investments as directed by
Party
A, with gains and losses incurred in respect of such investments to be for
the
account of Party A, subject to the following parameters: the Cash Posted
Collateral shall be invested in such overnight (or redeemable within two Local
Business Days of demand) investments rated at least (x) AAAm or AAAm-G by
S&P and (y) Prime -1 or Aaa by Moody’s as directed by Party A (provided,
that such investment shall be held uninvested or invested at the direction
of
Party B if an Event of Default or an Additional Termination Event has occurred
with respect to which Party A is the defaulting or sole Affected Party and
Party
B has designated an Early Termination Date with respect thereto). Such
instructions may be delivered as standing instructions.
(vii) Return
of Posted Collateral.
At any
time Party A is required to post collateral pursuant to Part 5(i)(ii) of the
Schedule, Party A shall be obligated to transfer Eligible Collateral in
accordance with the terms of this Annex. If Party A is so required to post
collateral in relation to a Collateralization Event or a Ratings Event and
thereafter ceases to be required to post collateral under Part 5(i)(ii) of
the
Schedule (and provided that no Event of Default exists with respect to Party
A)
or Party A has made a Permitted Transfer under this Agreement, then Party A’s
obligations to transfer Eligible Collateral under this Annex will immediately
cease with respect to that Collateralization Event or Ratings Event, and Party
B
will, upon demand by Party A, return to Party A, or cause its Custodian to
return, all Posted Collateral held under this Annex. The Secured Party is
authorized to liquidate any Posted Collateral pursuant to written instructions
from Party A.
(viii) External
Verification of ▇▇▇▇-to-Market Valuations.
If the
long-term senior unsecured debt of Party A is rated BBB or below by S&P or
Fitch (and with respect to the Fitch Rating Condition, its short-term senior
unsecured debt is rated F3 or below), once every month, Party A will at its
own
expense verify its determination of Exposure of the Transaction on the next
Valuation Date by seeking quotations from two (2) Reference Market-makers
(provided,
that a
Reference Market-maker may not be used more than four times within each 12
month
period) for their determination of Exposure of the Transaction on such Valuation
Date and the Valuation Agent will use the greater of either (a) its own
determination or (b) the high quotation for a Reference Market-maker, if
applicable for the next Valuation Date and cure any deficiency in collateral
value within three Local Business Days. Party A shall provide the quotations
of
such Reference Market-makers to S&P and Fitch.
6
(ix) Expenses.
Notwithstanding Paragraph 10, the Pledgor will be responsible for, and will
reimburse the Secured Party for, all transfer and other taxes and other costs
involved in the transfer of Eligible Collateral.
(x) Limit
on Secured Party’s Liability. The
Secured Party will not be liable for any losses or damages that the Pledgor
may
suffer as a result of any failure by the Secured Party to perform, or any delay
by it in performing, any of its obligations under this Annex if the failure
or
delay results from circumstances beyond the reasonable control of the Secured
Party or its Custodian, such as interruption or loss of computer or
communication services, labor disturbance, natural disaster or local or national
emergency.
[Signature
page immediately follows]
7
IN
WITNESS WHEREOF the parties have executed this Credit Support Annex on the
respective dates specified below with effect from the date on the first page.
|
The
Bank Of New York
|
U.S.
BANK NATIONAL ASSOCIATION
not
in its individual capacity, but solely as Supplemental Interest Trust
Trustee on behalf of the BAYVIEW
FINANCIAL MORTGAGE PASS-THROUGH TRUST 2007-A SUPPLEMENTAL INTEREST
TRUST
|
|
By:
/s/
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
By:
/s/
▇▇▇▇▇
▇▇▇▇▇▇
|
|
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Vice President
Date:
April 18, 2007
|
Name:
▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Assistant Vice President
Date:
April 18, 2007
|
8
SCHEDULE
1A
ELIGIBLE
COLLATERAL
MOODY’S
Certificates:
BAYVIEW FINANCIAL MORTGAGE PASS-THROUGH TRUST 2007-A Series
Highest
Rating of Certificates: Classes A-IO, 1-A1, 1-A2, 1-A3, 1-A4, 1-A5, 2-A1, 2-A2,
2-A3, and 2-A4, rated “Aaa” by Moody’s, and “AAA” by S&P, and “AAA” by
Fitch. Date
Certificates will fall to $50,000,000 or below: Regular: Yes. Scheduled: N/A,
Auction Call: none.
Last
Scheduled Payment Date of Transactions: April 28, 2011
Valuation
Date (and Valuation Percentage column): Daily
Moody’s
Valuation Percentage columns:
*
Column
A sets out the percentage applicable when the percentage in Column B is not
applicable.
*
Column
B sets out the percentage applicable when a Moody’s Ratings Event has occurred
and is continuing and at least 30 Local Business Days have elapsed since the
last time it was not the case that a Moody’s Ratings Event had occurred and was
continuing.
|
ELIGIBLE
COLLATERAL & VALUATION PERCENTAGES (MOODY’S
)
|
|||||
|
Valuation
Percentage
|
Valuation
Percentage
|
||||
|
Moody’s
(Daily)
|
Moody’s
(Weekly)
|
||||
|
A
|
B
|
A
|
B
|
||
|
(A)
|
Cash:
U.S. Dollars in depositary account form
|
100%
|
100
|
100%
|
100%
|
|
(B)
|
Floating-rate
U.S. Treasury Securities:
Floating-rate negotiable debt obligations issued by the U.S. Treasury
Department after July 18, 1984 (“Floating-rate
Treasuries”)
(all maturities).
|
100%
|
99%
|
100%
|
99%
|
|
(C)
|
U.S.
Treasury Securities:
Fixed-rate negotiable debt obligations issued by the U.S. Treasury
Department after July 18, 1984 (“Fixed-rate
Treasuries”)
having a remaining maturity of up to and not more than 1
year.
|
100%
|
100%
|
100%
|
100%
|
|
(D)
|
Fixed-rate
Treasuries having a remaining maturity of greater than 1 year but
not more
than 2 years.
|
100%
|
99%
|
100%
|
99%
|
|
(E)
|
Fixed-rate
Treasuries having a remaining maturity of greater than 2 years
but not
more than 3 years.
|
100%
|
98%
|
100%
|
98%
|
|
(F)
|
Fixed-rate
Treasuries having a remaining maturity of greater than 3 years
but not
more than 5 years.
|
100%
|
97%
|
100%
|
97%
|
|
(G)
|
Fixed-rate
Treasuries having a remaining maturity of greater than 5 years
but not
more than 7 years.
|
100%
|
96%
|
100%
|
95%
|
|
(H)
|
Fixed-rate
Treasuries having a remaining maturity of greater than 7 years
but not
more than 10 years.
|
100%
|
94%
|
100%
|
94%
|
|
(I)
|
Fixed-rate
Treasuries having a remaining maturity of greater than 10 years
but not
more than 20 years.
|
100%
|
90%
|
100%
|
89%
|
|
(J)
|
Fixed-rate
Treasuries having a remaining maturity of greater than 20 years
but not
more than 30 years.
|
100%
|
88%
|
100%
|
87%
|
1-A-1
|
ELIGIBLE
COLLATERAL & VALUATION PERCENTAGES (MOODY’S
)
|
|||||
|
(K)
|
Floating-rate
Agency Securities:
Floating-rate 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),
Tennessee Valley Authority (TVA) (collectively, “Floating-rate
Agency Securities”)
(all maturities).
|
100%
|
98%
|
100%
|
98%
|
|
(L)
|
Fixed-rate
Agency Securities:
Fixed-rate 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),
Tennessee Valley Authority (TVA) (collectively, “Fixed-rate
Agency Securities”)
issued after July 18, 1984 and having a remaining maturity of not
more
than 1 year.
|
100%
|
99%
|
100%
|
99%
|
|
(M)
|
Fixed-rate
Agency Securities having a remaining maturity of greater than 1
year but
not more than 2 years.
|
100%
|
99%
|
100%
|
98%
|
|
(N)
|
Fixed-rate
Agency Securities having a remaining maturity of greater than 2
years but
not more than 3 years.
|
100%
|
98%
|
100%
|
97%
|
|
(O)
|
Fixed-rate
Agency Securities having a remaining maturity of greater than 3
years but
not more than 5 years.
|
100%
|
96%
|
100%
|
96%
|
|
(P)
|
Fixed-rate
Agency Securities having a remaining maturity of greater than 5
years but
not more than 7 years.
|
100%
|
93%
|
100%
|
94%
|
|
(Q)
|
Fixed-rate
Agency Securities having a remaining maturity of greater than 7
years but
not more than 10 years.
|
100%
|
93%
|
100%
|
93%
|
|
(R)
|
Fixed-rate
Agency Securities having a remaining maturity of greater than 10
years but
not more than 20 years.
|
100%
|
89%
|
100%
|
88%
|
|
(S)
|
Fixed-rate
Agency Securities having a remaining maturity of greater than 20
years but
not more than 30 years.
|
100%
|
87%
|
100%
|
86%
|
|
(T)
|
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, issued
after
July 18, 1984 and having a remaining maturity of not more than
30
years.
|
*
|
*
|
*
|
*
|
|
(U)
|
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, issued after July 18,
1984 and
having a remaining maturity of not more than 30 years.
|
*
|
*
|
*
|
*
|
1-A-2
|
ELIGIBLE
COLLATERAL & VALUATION PERCENTAGES (MOODY’S
)
|
|||||
|
(V)
|
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, issued after July 18, 1984 and having a remaining
maturity
of not more than 30 years.
|
*
|
*
|
*
|
*
|
|
(W)
|
Commercial
Mortgage-Backed Securities.
Floating rate commercial mortgage-backed securities rated AAA by
two major
rating agencies (including S&P if S&P is a Rating Agency
hereunder) with a minimum par or face amount of $250 million (excluding
securities issued under Rule 144A) (“Commercial
Mortgage-Backed Securities”)
having a remaining maturity of not more than 5 years.
|
*
|
*
|
*
|
*
|
|
(X)
|
Commercial
Mortgage-Backed Securities having a remaining maturity of more
than 5
years and not more than 10 years.
|
*
|
*
|
*
|
*
|
|
(Y)
|
Commercial
Mortgage-Backed Securities having a remaining maturity of more
than 10
years.
|
|
|
*
|
*
|
|
(Z)
|
Commercial
Paper.
Commercial Paper with a rating of at least P-1 by Moody’s and at least
A-1+ by S&P and having a remaining maturity of not more than 30
days.
|
*
|
*
|
*
|
*
|
|
(AA)
|
Other
Items of Credit Support approved by the Rating Agencies to the
extent any
Certificates are rated.
|
*
|
*
|
*
|
*
|
*
zero or
such higher percentage in respect of which Moody’s has delivered a ratings
affirmation.
1-A-3
SCHEDULE
1B
ELIGIBLE
COLLATERAL
S&P
Certificates:
BAYVIEW FINANCIAL MORTGAGE PASS-THROUGH TRUST 2007-A Series
Highest
Rating of Certificates: Classes A-IO, 1-A1, 1-A2, 1-A3, 1-A4, 1-A5, 2-A1, 2-A2,
2-A3, and 2-A4, rated “Aaa” by Moody’s, and “AAA” by S&P, and “AAA” by
Fitch.
Date
Certificates will fall to $50,000,000 or below: Regular: Yes. Scheduled: N/A,
Auction Call: none.
Last
Scheduled Payment Date of Transactions: April 28, 2011
Valuation
Date (and Valuation Percentage column): Daily
|
ELIGIBLE
COLLATERAL & VALUATION PERCENTAGES
(S&P)
|
|||
|
|
|
Valuation
Percentage
|
|
|
|
|
S&P
|
|
|
|
|
Daily
|
Weekly
|
|
(A)
|
Cash:
U.S. Dollars in depositary account form
|
100%
|
100%
|
|
(B)
|
Floating-rate
U.S. Treasury Securities:
Floating-rate negotiable debt obligations issued by the U.S. Treasury
Department after July 18, 1984 (“Floating
Rate Treasuries”)
(all maturities).
|
*
|
*
|
|
(C)
|
Fixed-rate
U.S. Treasury Securities:
Fixed-rate negotiable debt obligations issued by the U.S. Treasury
Department after July 18, 1984 (“Fixed-rate
Treasuries”)
having a remaining maturity of up to and not more than 1
year.
|
98.90%
|
98.60%
|
|
(D)
|
Fixed-rate
Treasuries having a remaining maturity of greater than 1 year but
not more
than 2 years.
|
98.00%
|
97.30%
|
|
(E)
|
Fixed-rate
Treasuries having a remaining maturity of greater than 2 years
but not
more than 3 years.
|
97.40%
|
95.80%
|
|
(F)
|
Fixed-rate
Treasuries having a remaining maturity of greater than 3 years
but not
more than 5 years.
|
95.50%
|
93.80%
|
|
(G)
|
Fixed-rate
Treasuries having a remaining maturity of greater than 5 years
but not
more than 7 years.
|
93.70%
|
91.40%
|
|
(H)
|
Fixed-rate
Treasuries having a remaining maturity of greater than 7 years
but not
more than 10 years.
|
92.50%
|
90.30%
|
|
(I)
|
Fixed-rate
Treasuries having a remaining maturity of greater than 10 years
but not
more than 20 years.
|
91.10%
|
86.90%
|
|
(J)
|
Fixed-rate
Treasuries having a remaining maturity of greater than 20 years
but not
more than 30 years.
|
88.60%
|
84.60%
|
|
(K)
|
Floating-rate
Agency Securities:
Floating-rate 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),
Tennessee Valley Authority (TVA) (collectively, “Floating-rate
Agency Securities”)
(all maturities).
|
*
|
*
|
|
(L)
|
Fixed-rate
Agency Securities:
fixed-rate 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),
Tennessee Valley Authority (TVA) (collectively, “Fixed-rate
Agency Securities”)
issued after July 18, 1984 and having a remaining maturity of not
more
than 1 year.
|
98.50%
|
98.00%
|
1-B-1
|
ELIGIBLE
COLLATERAL & VALUATION PERCENTAGES
(S&P)
|
|||
|
(M)
|
Fixed-rate
Agency Securities having a remaining maturity of greater than 1
year but
not more than 2 years.
|
97.70%
|
96.80%
|
|
(N)
|
Fixed-rate
Agency Securities having a remaining maturity of greater than 2
years but
not more than 3 years.
|
97.30%
|
96.30%
|
|
(O)
|
Fixed-rate
Agency Securities having a remaining maturity of greater than 3
years but
not more than 5 years.
|
94.50%
|
92.50%
|
|
(P)
|
Fixed-rate
Agency Securities having a remaining maturity of greater than 5
years but
not more than 7 years.
|
93.10%
|
90.30%
|
|
(Q)
|
Fixed-rate
Agency Securities having a remaining maturity of greater than 7
years but
not more than 10 years.
|
90.70%
|
86.90%
|
|
(R)
|
Fixed-rate
Agency Securities having a remaining maturity of greater than 10
years but
not more than 20 years.
|
87.70%
|
81.60%
|
|
(S)
|
Fixed-rate
Agency Securities having a remaining maturity of greater than 20
years but
not more than 30 years.
|
84.40%
|
77.90%
|
|
(T)
|
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, issued
after
July 18, 1984 and having a remaining maturity of not more than
30
years.
|
91.50%
|
86.40%
|
|
(U)
|
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, issued after July 18,
1984 and
having a remaining maturity of not more than 30 years.
|
91.50%
|
86.40%
|
|
(V)
|
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, issued after July 18, 1984 and having a remaining
maturity
of not more than 30 years.
|
91.50%
|
86.40%
|
|
(W)
|
Commercial
Mortgage-Backed Securities.
Floating rate commercial mortgage-backed securities rated AAA by
two major
rating agencies (including S&P if S&P is a Rating Agency
hereunder) with a minimum par or face amount of $250 million (excluding
securities issued under Rule 144A) (“Commercial
Mortgage-Backed Securities”)
having a remaining maturity of not more than 5 years.
|
96.20%
|
95.10%
|
|
(X)
|
Commercial
Mortgage-Backed Securities having a remaining maturity of more
than 5
years and not more than 10 years.
|
92.90%
|
90.90%
|
|
(Y)
|
Commercial
Mortgage-Backed Securities having a remaining maturity of more
than 10
years.
|
91.00%
|
88.60%
|
|
(Z)
|
Commercial
Paper.
Commercial Paper with a rating of at least P-1 by Moody’s and at least
A-1+ by S&P and having a remaining maturity of not more than 30
days.
|
99.00%
|
99.00%
|
|
(AA)
|
Other
Items of Credit Support approved by the Rating Agencies to the
extent any
Certificates are rated.
|
*
|
*
|
*
zero or
such higher percentage in respect of which S&P has delivered a ratings
affirmation.
1-B-2
SCHEDULE
1C
ELIGIBLE
COLLATERAL
FITCH
Certificates:
BAYVIEW FINANCIAL MORTGAGE PASS-THROUGH TRUST 2007-A Series
Highest
Rating of Certificates: Classes A-IO, 1-A1, 1-A2, 1-A3, 1-A4, 1-A5, 2-A1, 2-A2,
2-A3, and 2-A4, rated “Aaa” by Moody’s, and “AAA” by S&P, and “AAA” by
Fitch.
Date
Certificates will fall to $50,000,000 or below: Regular: Yes. Scheduled: N/A,
Auction Call: none.
Last
Scheduled Payment Date of Transactions: April 28, 2011
Valuation
Date (and Valuation Percentage column): Daily
|
ELIGIBLE
COLLATERAL & VALUATION PERCENTAGES (FITCH)
|
|||||
|
|
|
Valuation
Percentage
(Rating
of Certificates)
|
|||
|
|
|
AAA
|
AA
|
A
|
BBB
|
|
(A)
|
Cash:
U.S. Dollars in depositary account form
|
100%
|
100
|
100%
|
100%
|
|
(B)
|
Floating-rate
U.S. Treasury Securities:
Floating-rate negotiable debt obligations issued by the U.S. Treasury
Department after July 18, 1984 (“Floating-rate
Treasuries”)
(all maturities).
|
*
|
*
|
*
|
*
|
|
(C)
|
Fixed-rate
U.S. Treasury Securities:
Fixed-rate negotiable debt obligations issued by the U.S. Treasury
Department after July 18, 1984 (“Fixed-rate
Treasuries”)
having a remaining maturity of up to and not more than 1
year.
|
97.50%
|
97.80%
|
98.40%
|
98.90%
|
|
(D)
|
Fixed-rate
Treasuries having a remaining maturity of greater than 1 year but
not more
than 2 years.
|
94.70%
|
95.30%
|
95.90%
|
96.50%
|
|
(E)
|
Fixed-rate
Treasuries having a remaining maturity of greater than 2 years
but not
more than 3 years.
|
94.70%
|
95.30%
|
95.90%
|
96.50%
|
|
(F)
|
Fixed-rate
Treasuries having a remaining maturity of greater than 3 years
but not
more than 5 years.
|
91.50%
|
92.50%
|
93.50%
|
94.50%
|
|
(G)
|
Fixed-rate
Treasuries having a remaining maturity of greater than 5 years
but not
more than 7 years.
|
89.00%
|
90.10%
|
91.2%
|
92.30%
|
|
(H)
|
Fixed-rate
Treasuries having a remaining maturity of greater than 7 years
but not
more than 10 years.
|
86.30%
|
87.50%
|
88.8%
|
90.00%
|
|
(I)
|
Fixed-rate
Treasuries having a remaining maturity of greater than 10 years
but not
more than 20 years.
|
83.00%
|
84.50%
|
86.00%
|
87.50%
|
|
(J)
|
Fixed-rate
Treasuries having a remaining maturity of greater than 20 years
but not
more than 30 years.
|
79.00%
|
80.70%
|
82.30%
|
84.00%
|
|
(K)
|
Floating-rate
Agency Securities:
Floating-rate 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),
Tennessee Valley Authority (TVA) (collectively, “Floating-rate
Agency Securities”)
(all maturities).
|
*
|
*
|
*
|
*
|
1-C-1
|
ELIGIBLE
COLLATERAL & VALUATION PERCENTAGES (FITCH)
|
|||||
|
|
|
Valuation
Percentage
(Rating
of Certificates)
|
|||
|
(L)
|
Fixed-rate
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), Tennessee Valley
Authority
(TVA) (collectively, “Fixed-rate
Agency Securities”)
issued after July 18, 1984 and having a remaining maturity of not
more
than 1 year.
|
*
|
*
|
*
|
*
|
|
(M)
|
Fixed-rate
Agency Securities having a remaining maturity of greater than 1
year but
not more than 2 years.
|
*
|
*
|
*
|
*
|
|
(N)
|
Fixed-rate
Agency Securities having a remaining maturity of greater than 2
years but
not more than 3 years.
|
*
|
*
|
*
|
*
|
|
(O)
|
Fixed-rate
Agency Securities having a remaining maturity of greater than 3
years but
not more than 5 years.
|
*
|
*
|
*
|
*
|
|
(P)
|
Fixed-rate
Agency Securities having a remaining maturity of greater than 5
years but
not more than 7 years.
|
*
|
*
|
*
|
*
|
|
(Q)
|
Fixed-rate
Agency Securities having a remaining maturity of greater than 7
years but
not more than 10 years.
|
*
|
*
|
*
|
*
|
|
(R)
|
Fixed-rate
Agency Securities having a remaining maturity of greater than 10
years but
not more than 20 years.
|
*
|
*
|
*
|
*
|
|
(S)
|
Fixed-rate
Agency Securities having a remaining maturity of greater than 20
years but
not more than 30 years.
|
*
|
*
|
*
|
*
|
|
(T)
|
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, issued
after
July 18, 1984 and having a remaining maturity of not more than
30
years.
|
*
|
*
|
*
|
*
|
|
(U)
|
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, issued after July 18,
1984 and
having a remaining maturity of not more than 30 years.
|
*
|
*
|
*
|
*
|
|
(V)
|
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, issued after July 18, 1984 and having a remaining
maturity
of not more than 30 years.
|
*
|
*
|
*
|
*
|
1-C-2
|
ELIGIBLE
COLLATERAL & VALUATION PERCENTAGES (FITCH)
|
|||||
|
|
|
Valuation
Percentage
(Rating
of Certificates)
|
|||
|
(W)
|
Commercial
Mortgage-Backed Securities.
Floating rate commercial mortgage-backed securities rated AAA by
two major
rating agencies with a minimum par or face amount of $250 million
(excluding securities issued under Rule 144A) (“Commercial
Mortgage-Backed Securities”)
having a remaining maturity of not more than 5 years.
|
*
|
*
|
*
|
*
|
|
(X)
|
Commercial
Mortgage-Backed Securities having a remaining maturity of more
than 5
years and not more than 10 years.
|
*
|
*
|
*
|
*
|
|
(Y)
|
Commercial
Mortgage-Backed Securities having a remaining maturity of more
than 10
years.
|
*
|
*
|
*
|
*
|
|
(Z)
|
Commercial
Paper.
Commercial Paper with a rating of at least P-1 by Fitch and at
least A-1+
by S&P and having a remaining maturity of not more than 30
days.
|
*
|
*
|
*
|
*
|
|
(AA)
|
Other
Items of Credit Support approved by the Rating Agencies to the
extent any
Certificates are rated.
|
*
|
*
|
*
|
*
|
*
zero or
such higher percentage in respect of which Fitch has delivered a ratings
affirmation.
1-C-3
SCHEDULE
2A
MOODY’S
INDEPENDENT AMOUNT (FIRST TRIGGER)
Certificates:
BAYVIEW FINANCIAL MORTGAGE PASS-THROUGH TRUST 2007-A Series
Highest
Rating of Certificates: Classes A-IO, 1-A1, 1-A2, 1-A3, 1-A4, 1-A5, 2-A1, 2-A2,
2-A3, and 2-A4, rated “Aaa” by Moody’s, and “AAA” by S&P, and “AAA” by
Fitch.
Date
Certificates will fall to $50,000,000 or below: Regular: Yes. Scheduled: N/A,
Auction Call: none.
Last
Scheduled Payment Date of Transactions: April 28, 2011
Valuation
Date (and Valuation Percentage column): Daily
The
following percentages shall be used in the calculation of the Moody's
Independent Amount when either (i) it is not the case that a Moody’s Ratings
Event has occurred and is continuing, or (ii) less than 30 Local Business Days
have elapsed since the last time it was not the case that a Moody’s Ratings
Event had occurred and was continuing.
|
Weighted
Average Life of
Transaction
in Years
|
Valuation
Date (Daily)
|
Valuation
Date (Weekly)
|
|
1
or less
|
0.15%
|
0.25%
|
|
More
than 1 but not more than 2
|
0.30%
|
0.50%
|
|
More
than 2 but not more than 3
|
0.40%
|
0.70%
|
|
More
than 3 but not more than 4
|
0.60%
|
1.00%
|
|
More
than 4 but not more than 5
|
0.70%
|
1.20%
|
|
More
than 5 but not more than 6
|
0.80%
|
1.40%
|
|
More
than 6 but not more than 7
|
1.00%
|
1.60%
|
|
More
than 7 but not more than 8
|
1.10%
|
1.80%
|
|
More
than 8 but not more than 9
|
1.20%
|
2.00%
|
|
More
than 9 but not more than 10
|
1.30%
|
2.20%
|
|
More
than 10 but not more than 11
|
1.40%
|
2.30%
|
|
More
than 11 but not more than 12
|
1.50%
|
2.50%
|
|
More
than 12 but not more than 13
|
1.60%
|
2.70%
|
|
More
than 13 but not more than 14
|
1.70%
|
2.80%
|
|
More
than 14 but not more than 15
|
1.80%
|
3.00%
|
|
More
than 15 but not more than 16
|
1.90%
|
3.20%
|
|
More
than 16 but not more than 17
|
2.00%
|
3.30%
|
|
More
than 17 but not more than 18
|
2.00%
|
3.50%
|
|
More
than 18 but not more than 19
|
2.00%
|
3.60%
|
|
More
than 20 but not more than 21
|
2.00%
|
3.70%
|
|
More
than 21 but not more than 22
|
2.00%
|
3.90%
|
|
More
than 22
|
2.00%
|
4.00%
|
2A-1
SCHEDULE
2B
MOODY’S
INDEPENDENT AMOUNT (SECOND TRIGGER)
(TRANSACTION
SPECIFIC ▇▇▇▇▇▇)
Certificates:
BAYVIEW FINANCIAL MORTGAGE PASS-THROUGH TRUST 2007-A Series
Highest
Rating of Certificates: Classes A-IO, 1-A1, 1-A2, 1-A3, 1-A4, 1-A5, 2-A1, 2-A2,
2-A3, and 2-A4, rated “Aaa” by Moody’s, and “AAA” by S&P, and “AAA” by
Fitch.
Date
Certificates will fall to $50,000,000 or below: Regular: Yes. Scheduled: N/A,
Auction Call: none.
Last
Scheduled Payment Date of Transactions: April 28, 2011
Valuation
Date (and Valuation Percentage column): Daily
The
following percentages shall be used in the calculation of the Moody's
Independent Amount with respect to any Transaction that is an interest rate
cap,
interest rate floor or interest rate swaption, or that is an interest rate
swap
the notional amount of which is “balance guaranteed” or, for any Calculation
Period, otherwise is not a specific dollar amount that is fixed at the inception
of the Transaction (a “Transaction-Specific
Hedge”)
when a
Moody’s Ratings Event has occurred and is continuing and at least 30 Local
Business Days have elapsed since the last time it was not the case that a
Moody’s Ratings Event had occurred and was continuing.
|
Weighted
Average Life of Transaction in Years
|
Valuation
Date (Daily)
|
Valuation
Date (Weekly)
|
|
1
or less
|
0.65%
|
0.75%
|
|
More
than 1 but not more than 2
|
1.30%
|
1.50%
|
|
More
than 2 but not more than 3
|
1.90%
|
2.20%
|
|
More
than 3 but not more than 4
|
2.50%
|
2.90%
|
|
More
than 4 but not more than 5
|
3.10%
|
3.60%
|
|
More
than 5 but not more than 6
|
3.60%
|
4.20%
|
|
More
than 6 but not more than 7
|
4.20%
|
4.80%
|
|
More
than 7 but not more than 8
|
4.70%
|
5.40%
|
|
More
than 8 but not more than 9
|
5.20%
|
6.00%
|
|
More
than 9 but not more than 10
|
5.70%
|
6.60%
|
|
More
than 10 but not more than 11
|
6.10%
|
7.00%
|
|
More
than 11 but not more than 12
|
6.50%
|
7.50%
|
|
More
than 12 but not more than 13
|
7.00%
|
8.00%
|
|
More
than 13 but not more than 14
|
7.40%
|
8.50%
|
|
More
than 14 but not more than 15
|
7.80%
|
9.00%
|
|
More
than 15 but not more than 16
|
8.20%
|
9.50%
|
|
More
than 16 but not more than 17
|
8.60%
|
9.90%
|
|
More
than 17 but not more than 18
|
9.00%
|
10.40%
|
|
More
than 18 but not more than 19
|
9.40%
|
10.80%
|
|
More
than 20 but not more than 21
|
9.70%
|
11.00%
|
|
More
than 21 but not more than 22
|
10.00%
|
11.00%
|
|
More
than 22
|
10.00%
|
11.00%
|
2B-1
SCHEDULE
2C
MOODY’S
INDEPENDENT AMOUNT (SECOND TRIGGER)
(NON-TRANSACTION
SPECIFIC ▇▇▇▇▇▇)
Certificates:
BAYVIEW FINANCIAL MORTGAGE PASS-THROUGH TRUST 2007-A Series
Highest
Rating of Certificates: Classes A-IO, 1-A1, 1-A2, 1-A3, 1-A4, 1-A5, 2-A1, 2-A2,
2-A3, and 2-A4, rated “Aaa” by Moody’s, and “AAA” by S&P, and “AAA” by
Fitch.
Date
Certificates will fall to $50,000,000 or below: Regular: Yes. Scheduled: N/A,
Auction Call: none.
Last
Scheduled Payment Date of Transactions: April 28, 2011
Valuation
Date (and Valuation Percentage column): Daily
The
following percentages shall be used in the calculation of the Moody's
Independent Amount with respect to any Transaction that is not a
Transaction-Specific Hedge when a Moody’s Ratings Event with respect to Party A
and the guarantor under each Qualified Guaranty (if any) has occurred and is
continuing and at least 30 Local Business Days have elapsed since the last
time
it was not the case that a Moody’s Ratings Event had occurred and was continuing
with respect to Party A and the guarantor under each Qualified Guaranty (if
any).
|
Weighted
Average Life of Transaction in Years
|
Valuation
Date (Daily)
|
Valuation
Date (Weekly)
|
|
1
or less
|
0.50%
|
0.60%
|
|
More
than 1 but not more than 2
|
1.00%
|
1.20%
|
|
More
than 2 but not more than 3
|
1.50%
|
1.70%
|
|
More
than 3 but not more than 4
|
1.90%
|
2.30%
|
|
More
than 4 but not more than 5
|
2.40%
|
2.80%
|
|
More
than 5 but not more than 6
|
2.80%
|
3.30%
|
|
More
than 6 but not more than 7
|
3.20%
|
3.80%
|
|
More
than 7 but not more than 8
|
3.60%
|
4.30%
|
|
More
than 8 but not more than 9
|
4.00%
|
4.80%
|
|
More
than 9 but not more than 10
|
4.40%
|
5.30%
|
|
More
than 10 but not more than 11
|
4.70%
|
5.60%
|
|
More
than 11 but not more than 12
|
5.00%
|
6.00%
|
|
More
than 12 but not more than 13
|
5.40%
|
6.40%
|
|
More
than 13 but not more than 14
|
5.70%
|
6.80%
|
|
More
than 14 but not more than 15
|
6.00%
|
7.20%
|
|
More
than 15 but not more than 16
|
6.30%
|
7.60%
|
|
More
than 16 but not more than 17
|
6.60%
|
7.90%
|
|
More
than 17 but not more than 18
|
6.90%
|
8.30%
|
|
More
than 18 but not more than 19
|
7.20%
|
8.60%
|
|
More
than 20 but not more than 21
|
7.50%
|
9.00%
|
|
More
than 21 but not more than 22
|
7.80%
|
9.00%
|
|
More
than 22
|
8.00%
|
9.00%
|
2C-1
SCHEDULE
3
S&P
VOLATILITY BUFFER
Certificates:
BAYVIEW FINANCIAL MORTGAGE PASS-THROUGH TRUST 2007-A Series
Highest
Rating of Certificates: Classes A-IO, 1-A1, 1-A2, 1-A3, 1-A4, 1-A5, 2-A1, 2-A2,
2-A3, and 2-A4, rated “Aaa” by Moody’s, and “AAA” by S&P, and “AAA” by
Fitch.
Date
Certificates will fall to $50,000,000 or below: Regular: Yes. Scheduled: N/A,
Auction Call: none.
Last
Scheduled Payment Date of Transactions: April 28, 2011
Valuation
Date (and Valuation Percentage column): Daily
The
S&P Volatility Buffer will be determined using the following
table:
|
S&P
Volatility Buffer
|
||||
|
Party
A Rating*
|
Remaining
Years to Maturity of Transaction
|
|||
|
(Up
to 3 years)
|
(Up
to 5 years)
|
(Up
to 10 years)
|
(Up
to 30 years)
|
|
|
If,
on the related Valuation Date, the highest rated Certificates are
rated
“AA-” or higher by S&P, the S&P Volatility Buffer
is:
|
||||
|
A-2
|
2.75%
|
3.25%
|
4.00%
|
4.75%
|
|
A-3
|
3.25%
|
4.00%
|
5.00%
|
6.25%
|
|
BB+
or lower
|
3.50%
|
4.50%
|
6.75%
|
7.50%
|
|
If,
on the related Valuation Date, the highest rated Certificates are
rated
“A” or “A+” by S&P, the S&P Volatility Buffer
is:
|
||||
|
BBB+/BBB
|
*
|
3.25%
|
4.00%
|
4.50%
|
|
A-2
|
*
|
3.25%
|
4.00%
|
4.50%
|
|
A-3/BBB-
|
*
|
3.50%
|
4.50%
|
6.00%
|
|
BB+
or lower
|
*
|
4.00%
|
5.25%
|
7.00%
|
*
This
rating shall be the higher of the rating by S&P on the related Valuation
Date of the long-term debt and short-term debt of Party A or its guarantor
or
other Credit Support Provider.
3-1
SCHEDULE
4
FITCH
VOLATILITY CUSHION
Certificates:
BAYVIEW FINANCIAL MORTGAGE PASS-THROUGH TRUST 2007-A Series
Highest
Rating of Certificates: Classes A-IO, 1-A1, 1-A2, 1-A3, 1-A4, 1-A5, 2-A1, 2-A2,
2-A3, and 2-A4, rated “Aaa” by Moody’s, and “AAA” by S&P, and “AAA” by
Fitch.
Date
Certificates will fall to $50,000,000 or below: Regular: Yes. Scheduled: N/A,
Auction Call: none.
Last
Scheduled Payment Date of Transactions: April 28, 2011
Valuation
Date (and Valuation Percentage column): Daily
The
Fitch
Volatility Cushion will be determined using the following table:
|
Fitch
Volatility Cushion
(USD
Interest Rate Swaps)
|
||
|
Remaining
Years to Maturity of Transaction
|
Posting
Frequency
|
|
|
Daily
|
Weekly
|
|
|
If,
on the related Valuation Date, the highest rated Certificates are
rated
“AA-” or higher by Fitch, the Fitch Volatility Cushion
is:
|
||
|
1
|
0.8%
|
|
|
2
|
1.7%
|
|
|
3
|
2.5%
|
|
|
4
|
3.3%
|
|
|
5
|
4.0%
|
|
|
6
|
4.7%
|
|
|
7
|
5.3%
|
|
|
8
|
5.9%
|
|
|
9
|
6.5%
|
|
|
10
|
7.0%
|
|
|
11
|
7.5%
|
|
|
12
|
8.0%
|
|
|
13
|
8.5%
|
|
|
14
|
9.0%
|
|
|
>
= 15
|
9.5%
|
|
|
If,
on the related Valuation Date, the highest rated Certificates are
rated
“A+” or “A” by Fitch, the Fitch Volatility Cushion is:
|
||
|
1
|
0.6%
|
|
|
2
|
1.2%
|
|
|
3
|
1.8%
|
|
|
4
|
2.3%
|
|
|
5
|
2.8%
|
|
|
6
|
3.3%
|
|
4-1
|
7
|
3.8%
|
|
|
8
|
4.2%
|
|
|
9
|
4.6%
|
|
|
10
|
5.0%
|
|
|
11
|
5.3%
|
|
|
12
|
5.7%
|
|
|
13
|
6.0%
|
|
|
14
|
6.4%
|
|
|
>
= 15
|
6.7%
|
|
|
If,
on the related Valuation Date, the highest rated Certificates are
rated
“A-” or “BBB+” by Fitch, the Fitch Volatility Cushion
is:
|
||
|
1
|
0.5%
|
|
|
2
|
1.0%
|
|
|
3
|
1.6%
|
|
|
4
|
2.0%
|
|
|
5
|
2.5%
|
|
|
6
|
2.9%
|
|
|
7
|
3.3%
|
|
|
8
|
3.6%
|
|
|
9
|
4.0%
|
|
|
10
|
4.3%
|
|
|
11
|
4.7%
|
|
|
12
|
5.0%
|
|
|
13
|
5.3%
|
|
|
14
|
5.6%
|
|
|
>
= 15
|
5.9%
|
|
4-2