The Schedule to the ISDA Master Agreement (including the related ISDA Credit Support Annex) SCHEDULE to the ISDA® International Swaps and Derivatives Association, Inc. MASTER AGREEMENT dated as of March 29, 2007
EXHIBIT
99.3
The
Schedule to the ISDA Master Agreement (including the related ISDA Credit Support
Annex)
SCHEDULE
to
the
ISDA®
International
Swaps and Derivatives Association, Inc.
MASTER
AGREEMENT
dated
as
of March 29, 2007
between
BEAR ▇▇▇▇▇▇▇ FINANCIAL PRODUCTS INC., a corporation organized
under the laws of Delaware ("Party A"), and Deutsche Bank National Trust
Company, not in its individual capacity, but solely as Supplemental Interest
Trustee on behalf of the Supplemental Interest Trust with respect to Residential
Asset Securitization Trust 2007-A5, a common law trust organized under
the laws of the State of New York. ("Party B").
Reference
is hereby made to the Pooling and Servicing Agreement, dated as of March
1,
2007, among IndyMac MBS, Inc., a Delaware corporation, as depositor (the
“Depositor”), IndyMac Bank, F.S.B. (“IndyMac”), a federal savings
bank, as seller (in that capacity, the “Seller”) and as servicer (in that
capacity, the “Servicer”), and Deutsche Bank National Trust Company, a national
banking association, as trustee (the “Trustee”) and supplemental interest
trustee (the “Supplemental Interest Trustee”)(the “Pooling and Servicing
Agreement”).
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Part
1.
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Termination
Provisions.
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For
the
purposes of this Agreement:-
(a) “Specified
Entity” will not apply to Party A or Party B for any
purpose.
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(b)
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“Specified
Transaction” will have the meaning specified in Section
14.
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(c)
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Events
of Default.
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The
statement below that an Event of Default will apply to a specific party means
that upon the occurrence of such an Event of Default with respect to such
party,
the other party shall have the rights of a Non-defaulting Party under Section
6
of this Agreement; conversely, the statement below that such event will not
apply to a specific party means that the other party shall not have such
rights.
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(i)
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The
“Failure to Pay or Deliver” provisions of Section 5(a)(i)
will apply to Party A and will apply to Party B; provided, however,
that
notwithstanding anything to the contrary in Section 5(a)(i) or
in
Paragraph 7 of the Credit Support Annex, any failure by Party A
to comply
with or perform any obligation to be complied with or performed
by Party A
under the Credit Support Annex shall not constitute an Event of
Default
under Section 5(a)(i) unless (A) a Required Ratings Downgrade Event
has
occurred and been continuing for 30 or more Local Business Days
and (B)
such failure is not remedied on or before the third Local Business
Day
after notice of such failure is given to Party
A.
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(ii)
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The
“Breach of Agreement” provisions of Section 5(a)(ii) will
apply to Party A and will not apply to Party
B.
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(iii)
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The
“Credit Support Default” provisions of Section 5(a)(iii)
will apply to Party A and will not apply to Party B except that
Section
5(a)(iii)(1) will apply to Party B solely in respect of Party B’s
obligations under Paragraph 3(b) of the Credit Support Annex; provided,
however, that notwithstanding anything to the contrary in Section
5(a)(iii)(1), any failure by Party A to comply with or perform
any
obligation to be complied with or performed by Party A under the
Credit
Support Annex shall not constitute an Event of Default under Section
5(a)(iii) unless (A) a Required Ratings Downgrade Event has occurred
and
been continuing for 30 or more Local Business Days and (B) such
failure is
not remedied on or before the third Local Business Day after notice
of
such failure is given to Party A.
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(iv)
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The
“Misrepresentation” provisions of Section 5(a)(iv) will
apply to Party A and will not apply to Party
B.
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(v)
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The
“Default under Specified Transaction” provisions of
Section 5(a)(v) will apply to Party A and will not apply to Party
B.
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(vi)
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The
“Cross Default” provisions of Section 5(a)(vi) will apply
to Party A and will not apply to Party B. For purposes of
Section 5(a)(vi), solely with respect to Party
A:
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“Specified
Indebtedness” will have the meaning specified in Section 14.
“Threshold
Amount” means USD 100,000,000.
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(vii)
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The
“Bankruptcy” provisions of Section 5(a)(vii) will apply
to Party A and will apply to Party B except that the provisions
of Section
5(a)(vii)(2), (6) (to the extent that such provisions refer to
any
appointment contemplated or effected by the Pooling and Servicing
Agreement or any appointment to which Party B has not become subject),
(7)
and (9) will not apply to Party B; provided that, with respect
to Party B
only, Section 5(a)(vii)(4) is hereby amended by adding after the
words
“against it” the words “(excluding any proceeding or petition instituted
or presented by Party A or its Affiliates)”, and Section 5(a)(vii)(8) is
hereby amended by deleting the words “to (7) inclusive” and inserting lieu
thereof “, (3), (4) as amended, (5), (6) as amended, or
(7)”.
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(viii)
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The
“Merger Without Assumption” provisions of Section
5(a)(viii) will apply to Party A and will apply to Party
B.
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(d) Termination
Events.
The
statement below that a Termination Event will apply to a specific party means
that upon the occurrence of such a Termination Event, if such specific party
is
the Affected Party with respect to a Tax Event, the Burdened Party with respect
to a Tax Event Upon Merger (except as noted below) or the non-Affected Party
with respect to a Credit Event Upon Merger, as the case may be, such specific
party shall have the right to designate an Early Termination Date in accordance
with Section 6 of this Agreement; conversely, the statement below that such
an
event will not apply to a specific party means that such party shall not
have
such right; provided, however, with respect to “Illegality” the statement that
such event will apply to a specific party means that upon the occurrence
of such
a Termination Event with respect to such party, either party shall have the
right to designate an Early Termination Date in accordance with Section 6
of
this Agreement.
(i) The
“Illegality” provisions of Section 5(b)(i) will apply to Party
A and will apply to Party B.
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(ii)
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The
“Tax Event” provisions of Section 5(b)(ii) will apply to
Party A and will apply to Party B.
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(iii)
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The
“Tax Event Upon Merger” provisions of Section 5(b)(iii)
will apply to Party A and will apply to Party B, provided that
Party A
shall not be entitled to designate an Early Termination Date by
reason of
a Tax Event upon Merger in respect of which it is the Affected
Party.
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(iv)
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The
“Credit Event Upon Merger” provisions of Section 5(b)(iv)
will not apply to Party A and will not apply to Party
B.
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(e)
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The
“Automatic Early Termination” provision of Section 6(a)
will not apply to Party A and will not apply to Party
B.
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(f) Payments
on Early Termination. For the purpose of Section 6(e) of
this Agreement:
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(i)
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The
Second Method will apply.
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(ii)
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Market
Quotation will apply, provided, however, that, if Party A is the
Defaulting Party or the sole Affected Party, the following provisions
will
apply:
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(A)
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Section
6(e) is hereby amended by inserting on the first line thereof the
words
“or is effectively designated” after “If an Early Termination Date
occurs”;
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(B)
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The
definition of Market Quotation in Section 14 shall be deleted in
its
entirety and replaced with the
following:
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“Market
Quotation” means, with respect to one or more Terminated
Transactions, and a party making the determination, an amount determined
on the
basis of one or more Firm Offers from Reference Market-makers that are Eligible
Replacements. Each Firm Offer will be (1) for an amount that would be
paid to Party B (expressed as a negative number) or by Party B (expressed
as a
positive number) in consideration of an agreement between Party B and such
Reference Market-maker to enter into a Replacement Transaction, and (2) made
on
the basis that Unpaid Amounts in respect of the Terminated Transaction or
group
of Transactions are to be excluded but, without limitation, any payment or
delivery that would, but for the relevant Early Termination Date, have been
required (assuming satisfaction of each applicable condition precedent) after
that Early Termination Date are to be included. The party making the
determination (or its agent) will request each Reference Market-maker that
is an
Eligible Replacement to provide its Firm Offer to the extent reasonably
practicable as of the same day and time (without regard to different time
zones)
on or as soon as reasonably practicable after the designation or occurrence
of
the relevant Early Termination Date. The day and time as of which those Firm
Offers are to be provided (the “bid time”) will be selected in good faith by the
party obliged to make a determination under Section 6(e), and, if each party
is
so obliged, after consultation with the other. If at least one Firm
Offer from an Approved Replacement (which, if accepted, would determine the
Market Quotation) is provided at the bid time, the Market Quotation will
be the
Firm Offer (among such Firm Offers as specified in clause (C) below) actually
accepted by Party B no later than the Business Day immediately preceding
the
Early Termination Date. If no Firm Offer from an Approved Replacement
(which, if accepted, would determine the Market Quotation) is provided at
the
bid time, it will be deemed that the Market Quotation in respect of such
Terminated Transaction or group of Transactions cannot be
determined.
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(C)
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If
more than one Firm Offer from an Approved Replacement (which, if
accepted,
would determine the Market Quotation) is provided at the bid time,
Party B
shall accept the Firm Offer (among such Firm Offers) which would
require
either (x) the lowest payment by Party B to the Reference Market-maker,
to
the extent Party B would be required to make a payment to the Reference
Market-maker or (y) the highest payment from the Reference Market-maker
to
Party B, to the extent the Reference Market-maker would be required
to
make a payment to Party B. If only one Firm Offer from an
Approved Replacement (which, if accepted, would determine the Market
Quotation) is provided at the bid time, Party B shall accept such
Firm
Offer.
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(D)
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If
Party B requests Party A in writing to obtain Market Quotations,
Party A
shall use its reasonable efforts to do
so.
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(E)
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If
the Settlement Amount is a negative number, Section 6(e)(i)(3)
shall be
deleted in its entirety and replaced with the
following:
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“(3)
Second Method and Market Quotation. If the Second Method and Market
Quotation apply, (I) Party B shall pay to Party A an amount equal to the
absolute value of the Settlement Amount in respect of the Terminated
Transactions, (II) Party B shall pay to Party A the Termination Currency
Equivalent of the Unpaid Amounts owing to Party A and (III) Party A shall
pay to
Party B the Termination Currency Equivalent of the Unpaid Amounts owing to
Party
B; provided, however, that (x) the amounts payable under the immediately
preceding clauses (II) and (III) shall be subject to netting in accordance
with
Section 2(c) of this Agreement and (y) notwithstanding any other provision
of
this Agreement, any amount payable by Party A under the immediately preceding
clause (III) shall not be netted-off against any amount payable by Party
B under
the immediately preceding clause (I).”
(g) “Termination
Currency” means USD.
(h) Additional
Termination Events. Additional Termination Events will apply
as provided in Part 5(c).
Part
2. Tax Matters.
(a) Tax
Representations.
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(i)
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Payer
Representations. For the purpose of Section 3(e) of
this Agreement:
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(A) Party
A makes the following representation(s):
It
is not
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax from any payment (other
than interest under Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to
be made
by it to the other party under this Agreement.
In
making
this representation, it may rely on:
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(1)
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the
accuracy of any representations made by the other party pursuant
to
Section 3(f) of this Agreement;
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(2)
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the
satisfaction of the agreement contained in Section 4(a)(i) or 4(a)(iii)
of
this Agreement and the accuracy and effectiveness of any document
provided
by the other party pursuant to Section 4(a)(i) or 4(a)(iii) of
this
Agreement; and
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(3)
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the
satisfaction of the agreement of the other party contained in Section
4(d)
of this Agreement, provided that it shall not be a breach of this
representation where reliance is placed on clause (ii) and the
other party
does not deliver a form or document under Section 4(a)(iii) by
reason of
material prejudice to its legal or commercial
position.
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(B) Party
B makes the following representation(s):
None.
(ii) Payee
Representations. For the purpose of Section 3(f) of this
Agreement:
(A) Party
A makes the following representation(s):
Party
A
is a corporation organized under the laws of the State of Delaware and its
U.S.
taxpayer identification number is ▇▇-▇▇▇▇▇▇▇.
(B) Party
B makes the following representation(s):
None.
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(b)
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Tax
Provisions.
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(i)
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Gross
Up. Section 2(d)(i)(4) shall not apply to Party B as
X, such that Party B shall not be required to pay any additional
amounts
referred to therein.
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(ii)
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Indemnifiable
Tax. Notwithstanding the definition of “Indemnifiable Tax” in
Section 14 of this Agreement, all Taxes in relation to payments
by Party A
shall be Indemnifiable Taxes (including any Tax imposed in relation
to a
Credit Support Document or in relation to any payment thereunder)
unless
(i) such Taxes are assessed directly against Party B and not by
deduction
or withholding by Party A or (ii) arise as a result of a Change
in Tax Law
(in which case such Tax shall be an Indemnifiable Tax only if such
Tax
satisfies the definition of Indemnifiable Tax provided in Section
14). In relation to payments by Party B, no Tax shall be an
Indemnifiable Tax.
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Part
3. Agreement
to Deliver Documents.
(a) For
the purpose of Section 4(a)(i), tax forms, documents, or certificates to
be
delivered are:
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Party
required to deliver document
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Form/Document/
Certificate
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Date
by which to
be
delivered
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Party
A
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An
original properly completed and executed United States Internal
Revenue
Service Form W-9 (or any successor thereto) with respect to any
payments
received or to be received by Party A that eliminates U.S. federal
withholding and backup withholding Tax on payments to Party A under
this
Agreement.
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(i)
upon execution of this Agreement, (ii) on or before the first payment
date
under this Agreement, including any Credit Support Document, (iii)
promptly upon the reasonable demand by Party B, (iv) prior to the
expiration or obsolescence of any previously delivered form, and
(v)
promptly upon the information on any such previously delivered
form
becoming inaccurate or incorrect.
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Party
B
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(i)
Upon execution of this Agreement, an original properly completed
and
executed United States Internal Revenue Service Form W-9 (or any
successor
thereto) with respect to any payments received or to be received
by the
initial beneficial owner of payments to Party B that eliminates
U.S.
federal withholding and backup withholding Tax on payments to Party
B
under this Agreement, and (ii) thereafter, the appropriate tax
certification form (i.e., IRS Form W-9 or IRS Form ▇-▇▇▇▇, ▇-▇▇▇▇,
▇-▇▇▇▇
or W-8ECI, as applicable (or any successor form thereto)) with
respect to
any payments received or to be received by the beneficial owner
of
payments to Party B under this Agreement from time to
time.
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(i)
on or before the first payment date under this Agreement, including
any
Credit Support Document, (ii) in the case of a tax certification
form
other than a Form W-9, before December 31 of each third succeeding
calendar year, (iii) promptly upon the reasonable demand by Party
B, (iv)
promptly upon knowledge of the expiration or obsolescence of any
previously delivered form, and (v) promptly upon knowledge that
the
information on any such previously delivered form becoming inaccurate
or
incorrect.
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(b) For
the purpose of Section 4(a)(ii), other documents to be delivered
are:
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Party
required to deliver document
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Form/Document/
Certificate
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Date
by which to
be
delivered
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Covered
by Section 3(d) Representation
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Party
A and
Party
B
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Any
documents required by the receiving party to evidence the authority
of the
delivering party or its Credit Support Provider, if any, for it
to execute
and deliver the Agreement, this Confirmation, and any Credit Support
Documents to which it is a party, and to evidence the authority
of the
delivering party or its Credit Support Provider to perform its
obligations
under the Agreement, this Confirmation and any Credit Support Document,
as
the case may be
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Upon
the execution and delivery of this Agreement
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Yes
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Party
required to deliver document
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Form/Document/
Certificate
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Date
by which to
be
delivered
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Covered
by Section 3(d)
Representation
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Party
A and
Party
B
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A
certificate of an authorized officer of the party, as to the incumbency
and authority of the respective officers of the party signing the
Agreement, this Confirmation, and any relevant Credit Support Document,
as
the case may be
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Upon
the execution and delivery of this Agreement
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Yes
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Party
A
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Annual
Report of Party A containing consolidated financial statements
certified
by independent certified public accountants and prepared in accordance
with generally accepted accounting principles in the country in
which
Party A is organized
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Upon
request by Party B
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Yes
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Party
A
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Quarterly
Financial Statements of Party A containing unaudited, consolidated
financial statements of Party A’s fiscal quarter prepared in accordance
with generally accepted accounting principles in the country in
which
Party A is organized
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Upon
request by Party B
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Yes
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Party
A and
Party
B
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An
opinion of counsel of such party regarding the enforceability
of this Agreement in a form reasonably satisfactory to the other
party.
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Upon
the execution and delivery of this Agreement
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No
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Party
B
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An
executed copy of the Pooling and Servicing Agreement
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Promptly
upon filing of such agreement with the U.S. Securities and Exchange
Commission
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No
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Part
4. Miscellaneous.
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(a)
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Address
for Notices: For the purposes of Section 12(a) of
this Agreement:
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Address
for notices or communications
to Party A:
Address:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: DPC
Manager
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
with
a
copy to:
Address:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Derivative
Operations 7th Floor
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
(For
all
purposes)
Address
for notices or communications
to Party B:
Address: Home
Equity Mortgage Loan Trust Series RAST 2007-A5
c/oDeutsche
Bank National Trust Company
▇▇▇▇
▇▇▇▇
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Trust
Administration IN0705
Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
Phone: 714-247-6000
(For
all
purposes)
(b) Process
Agent. For the purpose of Section 13(c):
Party
A
appoints as its Process Agent: Not applicable.
Party
B
appoints as its Process Agent: Not applicable.
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(c)
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Offices. The
provisions of Section 10(a) will apply to this Agreement; neither
Party A
nor Party B has any Offices other than as set forth in the Notices
Section.
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(d)
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Multibranch
Party. For the purpose of Section 10(c) of this
Agreement:
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Party
A is not a Multibranch
Party.
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Party
B is not a Multibranch Party.
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(e)
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Calculation
Agent. The Calculation Agent is Party
A.
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(f) Credit
Support Document.
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Party
A:
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The
Credit Support Annex, and any guarantee in support of Party A’s
obligations under this Agreement.
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Party
B:
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The
Credit Support Annex.
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(g)
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Credit
Support Provider.
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Party
A:
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The
guarantor under any guarantee in support of Party A’s obligations under
this Agreement.
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Party
B:
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None.
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(h)
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(i)
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Netting
of Payments. The parties agree that subparagraph (ii)
of Section 2(c) will apply to each Transaction
hereunder.
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(j)
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Affiliate. Party
A and Party B shall be deemed to have no Affiliates for purposes
of this
Agreement, including for purposes of Section
6(b)(ii).
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Part
5. Others Provisions.
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(a)
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Definitions.
Unless otherwise specified in a Confirmation, this Agreement
and
each Transaction under this Agreement are subject to the 2000 ISDA
Definitions as published and copyrighted in 2000 by the International
Swaps and Derivatives Association, Inc. (the
“Definitions”), and will be governed in all relevant
respects by the provisions set forth in the Definitions, without
regard to
any amendment to the Definitions subsequent to the date
hereof. The provisions of the Definitions are hereby
incorporated by reference in and shall be deemed a part of this
Agreement,
except that (i) references in the Definitions to a “Swap Transaction”
shall be deemed references to a “Transaction” for purposes of this
Agreement, and (ii) references to a “Transaction” in this Agreement shall
be deemed references to a “Swap Transaction” for purposes of the
Definitions. Each term capitalized but not defined in this Agreement
shall
have the meaning assigned thereto in the Pooling and Servicing
Agreement.
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(b) Amendments
to ISDA Master Agreement.
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(i)
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Single
Agreement. Section 1(c) is hereby amended by the
adding the words “including, for the avoidance of doubt, the Credit
Support Annex” after the words “Master
Agreement”.
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(ii)
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[Reserved.]
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(iii)
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[Reserved.]
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(iv)
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Representations. Section
3 is hereby amended by adding at the end thereof the following
subsection
(g):
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“(g)
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Relationship
Between Parties.
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(1)
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Nonreliance. (i)
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, (ii) it has consulted with its own
legal,
regulatory, tax, business, investment, financial and accounting
advisors
to the extent it has deemed necessary, and it has made its own
investment,
hedging and trading decisions based upon its own judgment and upon
any
advice from such advisors as it has deemed necessary and not upon
any view
expressed by the other party, (iii) it is not relying on any communication
(written or oral) of the other party as investment advice or as
a
recommendation to enter into this Transaction; it being understood
that
information and explanations related to the terms and conditions
of this
Transaction shall not be considered investment advice or a recommendation
to enter into this Transaction, and (iv) it has not received from
the
other party any assurance or guaranty as to the expected results
of this
Transaction.
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(2)
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Evaluation
and Understanding. (i) It has the capacity to evaluate
(internally or through independent professional advice) the Transaction
and has made its own decision to enter into 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
those
risks, financially and otherwise.
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(3)
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Purpose. It
is entering into the Transaction for the purposes of managing its
borrowings or investments, hedging its underlying assets or liabilities
or
in connection with a line of
business.
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(4)
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Status
of Parties. The other party is not acting as an agent,
fiduciary or advisor for it in respect of the
Transaction.
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(5)
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Eligible
Contract Participant. It is an “eligible swap participant” as
such term is defined in, Section 35.1(b)(2) of the regulations
(17 C.F.R.
35) promulgated under, and an “eligible contract participant” as defined
in Section 1(a)(12) of the Commodity Exchange Act, as
amended.”
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(v)
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Transfer
to Avoid Termination Event. Section 6(b)(ii) is hereby
amended by (i) deleting the words “or if a Tax Event Upon Merger occurs
and the Burdened Party is the Affected Party,” and (ii) deleting the last
paragraph thereof and inserting the following in lieu
thereof:
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“Notwithstanding
anything to the contrary in Section 7 (as amended herein) and Part 5(f),
any
transfer by Party A under this Section 6(b)(ii) shall not require the consent
of
Party B for such transfer if the following conditions are
satisfied:
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(1)
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the
transferee (the “Section 6 Transferee”) is an Eligible
Replacement;
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(2)
|
if
the Section 6 Transferee is domiciled in a different country or
political
subdivision thereof from both Party A and Party B, such transfer
satisfies
the Rating Agency Condition;
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(3)
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the
Section 6 Transferee will not, as a result of such transfer, be
required
on the next succeeding Scheduled Payment Date to withhold or deduct
on
account of any Tax (except in respect of default interest) amounts
in
excess of that which Party A would, on the next succeeding Scheduled
Payment Date have been required to so withhold or deduct unless
the
Section 6 Transferee would be required to make additional payments
pursuant to Section 2(d)(i)(4) corresponding to such
excess;
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(4)
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a
Termination Event or Event of Default does not occur as a result
of such
transfer; and
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(5)
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the
Section 6 Transferee confirms in writing that it will accept all
of the
interests and obligations in and under this Agreement which are
to be
transferred to it in accordance with the terms of this
provision.”
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(vi)
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Jurisdiction.
Section 13(b) is hereby amended by: (i) deleting in the
second
line of subparagraph (i) thereof the word "non-", (ii) deleting
“; and”
from the end of subparagraph 1 and inserting “.” in lieu thereof, and
(iii) deleting the final paragraph
thereof.
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(vii)
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Local
Business Day. The definition of Local Business Day in
Section 14 is hereby amended by the addition of the words “or any Credit
Support Document” after “Section 2(a)(i)” and the addition of the words
“or Credit Support Document” after
“Confirmation”.
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(c)
|
Additional
Termination Events. The following Additional
Termination Events will apply:
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(i)
|
S&P
First Level Downgrade. If an S&P Approved Ratings
Downgrade Event has occurred and is continuing and Party A fails
to take
any action described under Part (5)(d)(i)(1), within the time period
specified therein, then an Additional Termination Event shall have
occurred with respect to Party A, Party A shall be the sole Affected
Party
with respect to such Additional Termination Event and all Transactions
hereunder shall be Affected
Transaction.
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(ii)
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▇▇▇▇▇’▇
First Rating Trigger Collateral. If (A) it is not the
case that a ▇▇▇▇▇’▇ Second Trigger Ratings Event has occurred and been
continuing for 30 or more Local Business Days and (B) Party A has
failed
to comply with or perform any obligation to be complied with or
performed
by Party A in accordance with the Credit Support Annex, then an
Additional
Termination Event shall have occurred with respect to Party A,
Party A
shall be the sole Affected Party with respect to such Additional
Termination Event and all Transactions hereunder shall be Affected
Transactions.
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(iii)
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S&P
Second Level Downgrade. If an S&P Required Ratings
Downgrade Event has occurred and is continuing and Party A fails
to take
any action described under Part (5)(d)(i)(2) within the time period
specified therein, then an Additional Termination Event shall have
occurred with respect to Party A, Party A shall be the sole Affected
Party
with respect to such Additional Termination Event and all Transactions
hereunder shall be Affected
Transaction.
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(iv)
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▇▇▇▇▇’▇
Second Rating Trigger Replacement. If (A) a ▇▇▇▇▇’▇
Second Trigger Ratings Event has occurred and been continuing for
30 or
more Local Business Days and (B) (i) at least one Eligible Replacement
has
made a Firm Offer to be the transferee of all of Party A’s rights and
obligations under this Agreement (and such Firm Offer remains an
offer
that will become legally binding upon such Eligible Replacement
upon
acceptance by the offeree) and/or (ii) an Eligible Guarantor has
made a
Firm Offer to provide an Eligible Guarantee (and such Firm Offer
remains
an offer that will become legally binding upon such Eligible Guarantor
immediately upon acceptance by the offeree), then an Additional
Termination Event shall have occurred with respect to Party A,
Party A
shall be the sole Affected Party with respect to such Additional
Termination Event and all Transactions hereunder shall be Affected
Transactions.
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(v)
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Amendment
of the Pooling and Servicing Agreement. If, without the prior
written consent of Party A, where such consent is required under
the Pooling and Servicing Agreement (such consent not to be unreasonably
withheld, conditioned or delayed), an amendment or modification
is made to
the Pooling and Servicing Agreement which amendment or modification
could
reasonably be expected to have a material adverse effect on the
rights and
interests of Party A under the Credit Support Annex, an
Additional Termination Event shall have occurred with respect to
Party B,
Party B shall be the sole Affected Party and all Transactions hereunder
shall be Affected Transactions..
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(vi)
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[Reserved].
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(vii)
|
Optional
Termination of Securitization. An Additional Termination Event
shall occur upon the notice to Certificateholders of an Optional
Termination becoming unrescindable in accordance with Article 9
of the
Pooling and Servicing Agreement. Party B shall be the sole
Affected Party with respect to such Additional Termination Event;
provided, however, that notwithstanding anything to the contrary
in
Section 6(b)(iv), only Party B may designate an Early Termination
Date in
respect of this Additional Termination
Event.
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(d)
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Rating
Agency Downgrade.
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(i) S&P
Downgrade:
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(1)
|
In
the event that an S&P Approved Ratings Downgrade Event occurs and is
continuing, then within 30 days after such rating downgrade, Party
A
shall, subject to the Rating Agency Condition with respect to S&P, at
its own expense, either (i) procure a Permitted Transfer, (ii)
obtain an
Eligible Guarantee or (iii) post collateral in accordance with
the Credit
Support Annex.
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(2)
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In
the event that an S&P Required Ratings Downgrade Event occurs and is
continuing, then within 10 Local Business Days after such rating
withdrawal or downgrade, Party A shall, subject to the Rating Agency
Condition with respect to S&P, at its own expense, procure either (i)
a Permitted Transfer or (ii) an Eligible
Guarantee.
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(ii) ▇▇▇▇▇’▇
Downgrade.
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(1)
|
In
the event that a ▇▇▇▇▇’▇ Second Trigger Ratings Event occurs and is
continuing, Party A shall, as soon as reasonably practicable thereafter,
at its own expense and using commercially reasonable efforts, either
(i)
procure a Permitted Transfer or (ii) obtain an Eligible
Guarantee.
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(e)
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Item
1115 Agreement. Party A and Party B hereby agree that
the terms of the Item 1115 Agreement, dated as of November 15,
2006 (the
“Item 1115 Agreement”), among IndyMac Bank F.S.B.
(“Sponsor”), IndyMac ABS, Inc. (a “Depositor”), IndyMac MBS, Inc. (a
“Depositor”), and Party A (the “Derivative Provider”) shall be
incorporated by reference into this Agreement and Party B shall
be an
express third party beneficiary of the Item 1115 Agreement. A copy
of the
Item 1115 Agreement is annexed hereto at Annex
B.
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(f)
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Transfers.
|
(i) Section
7 is hereby amended to read in its entirety as follows:
“Except
with respect to a Permitted Transfer pursuant to Section 6(b)(ii), Part 5(d),
Part 5(b)(v) or the succeeding sentence, neither Party A nor Party B is
permitted to assign, novate or transfer (whether by way of security or
otherwise) as a whole or in part any of its rights, obligations or interests
under the Agreement or any Transaction unless (a) the prior written consent
of
the other party is obtained and (b) the Rating Agency Condition has been
satisfied with respect to S&P. At any time at which no Relevant
Entity has credit ratings at least equal to the Approved Ratings Threshold,
Party A may make a Permitted Transfer; provided, however that nothing herein
shall prohibit Party B from assigning its rights, obligations, or interests
to
another person pursuant to Section 8.09of the Pooling and Servicing
Agreement.”
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(ii)
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If
an Eligible Replacement has made a Firm Offer (which remains an
offer that
will become legally binding upon acceptance by Party B) to be
the transferee pursuant to a Permitted Transfer, Party B shall,
at Party
A’s written request and at Party A’s expense, execute such documentation
provided to it as is reasonably deemed necessary by Party A to
effect such
transfer.
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(g)
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Non-Recourse. Party
A acknowledges and agree that, notwithstanding any provision in
this
Agreement to the contrary, the obligations of Party B hereunder
are
limited recourse obligations of Party B, payable solely from the
Supplemental Interest Trust and the
proceeds
thereof, in accordance with the priority of payments and other
terms of
the Pooling and Servicing Agreement and that Party A will not have
any
recourse to any of the directors, officers, agents, employees,
shareholders or affiliates of Party B with respect to any claims,
losses,
damages, liabilities, indemnities or other obligations in connection
with
any transactions contemplated hereby. In the event that
the Supplemental Interest Trust and the proceeds thereof,
should be insufficient to satisfy all claims outstanding and following
the
realization of the Supplemental Interest Trust and the proceeds
thereof,
any claims against or obligations of Party B under this Agreement
or any
other confirmation thereunder still outstanding shall be extinguished
and
thereafter not revive. The Supplemental Interest Trustee shall
not have liability for any failure or delay in making a payment
hereunder
to Party A due to any failure or delay in receiving amounts in
the
Supplemental Interest Trust from the Trust created pursuant to
the Pooling
and Servicing Agreement. This provision will survive the termination
of
this Agreement.
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(h)
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Timing
of Payments by Party B upon Early
Termination. 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 Party
B to
Party A will be paid by Party B from amounts other than any upfront
payment paid to Party B by an Eligible Replacement that has entered
a
Replacement Transaction with Party B, 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, however, 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.
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(i)
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Rating
Agency Notifications. Notwithstanding any other
provision of this Agreement, no Early Termination Date shall be
effectively designated hereunder by Party B and no transfer of
any rights
or obligations under this Agreement shall be made by either party
unless
each Swap Rating Agency has been given prior written notice of
such
designation or transfer.
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(j)
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No
Set-off. Except as expressly provided for in Section
2(c), Section 6 or Part 1(f)(i)(D) hereof, and notwithstanding
any other
provision of this Agreement or any other existing or future agreement,
each party irrevocably waives any and all rights it may have to
set off,
net, recoup or otherwise withhold or suspend or condition payment
or
performance of any obligation between it and the other party hereunder
against any obligation between it and the other party under any
other
agreements. Section 6(e) shall be 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.”.
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(k)
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Amendment. Notwithstanding
any provision to the contrary in this Agreement, no amendment of
either
this Agreement or any Transaction under this Agreement shall be
permitted
by either party unless each of the Swap Rating Agencies has been
provided
prior written notice of the same and such amendment satisfies the
Rating
Agency Condition with respect to
S&P.
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(l)
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Notice
of Certain Events or Circumstances. Each Party agrees,
upon learning of the occurrence or existence of any event or condition
that constitutes (or that with the giving of notice or passage
of time or
both would constitute) an Event of Default or Termination Event
with
respect to such party, promptly to give the other Party and to
each Swap
Rating Agency notice of such event or condition; provided that
failure to
provide notice of such event or condition pursuant to this Part
5(l) shall
not constitute an Event of Default or a Termination
Event.
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(m)
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Proceedings. No
Relevant Entity shall institute against, or cause any other person
to
institute against, or join any other person in instituting against
Party
B, the Supplemental Interest Trust, or the trust formed pursuant
to the
Pooling and Servicing Agreement, in any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other proceedings
under any federal or state bankruptcy or similar law for a period
of one
year (or, if longer, the applicable preference period) and one
day
following payment in full of the Certificates and any
Notes. This provision will survive the termination of this
Agreement.
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(n)
|
Supplemental
Interest Trustee Liability Limitations. It is
expressly understood and agreed by the parties hereto that (a)
any such
documentation is executed and delivered by Deutsche Bank National
Trust
Company not in its individual capacity, but solely as the Supplemental
Interest Trustee under the Pooling and Servicing Agreement in the
exercise
of the powers and authority conferred and invested in it thereunder;
(b)
Deutsche Bank National Trust Company has been directed pursuant
to the
Pooling and Servicing Agreement to enter into this Agreement and
to
perform its obligations hereunder; (c) each of the representations,
undertakings and agreements herein made on behalf of the Supplemental
Interest Trust is made and intended not as personal representations
of
Deutsche Bank National Trust Company but is made and intended for
the
purpose of binding only the Supplemental Interest Trust; (d) under
no
circumstances shall Deutsche Bank National Trust
Company in its individual capacity be personally liable for any
payments
hereunder or for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken under this Agreement; and
(e)
nothing herein shall be construed as creating any liability on
Deutsche
Bank National Trust Company, individually or personally, to perform
any
covenant either expressed or implied contained herein, all such
liability,
if any, being expressly waived by the parties who are signatories
to this
Agreement and by any person claiming by, through or under such
parties.
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(o)
|
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) in any respect,
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; provided, however, that this severability provision shall
not be
applicable if any provision of Section 2, 5, 6, or 13 (or any definition
or provision in Section 14 to the extent it relates to, or is used
in or
in connection with any such Section) shall be so held to be invalid
or
unenforceable.
|
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.
|
(p)
|
Agent
for Party B. Party A acknowledges that Party B has
appointed the Supplemental Interest Trustee as its agents under
the
Pooling and Servicing Agreement to carry out certain functions on behalf
of Party B, and that the Supplemental Interest Trustee shall be
entitled
to give notices and to perform and satisfy the obligations of Party
B
hereunder on behalf of Party B.
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(q)
|
Limitation
on Events of Default. Notwithstanding the provisions
of Sections 5 and 6, if at any time and so long as Party B has
satisfied
in full all its payment obligations under Section 2(a)(i) and has
at the
time no future payment obligations, whether absolute or contingent,
under
such Section, then unless Party A is required pursuant to appropriate
proceedings to return to Party B or otherwise returns to Party
B upon
demand of Party B any portion of any such payment, (a) the occurrence
of
an event described in Section 5(a) with respect to Party B shall
not
constitute an Event of Default or Potential Event of Default with
respect
to Party B as Defaulting Party and (b) Party A shall be entitled
to
designate an Early Termination Date pursuant to Section 6 only
as a result
of the occurrence of a Termination Event set forth in either Section
5(b)(i) or 5(b)(ii) with respect to Party A as the Affected Party,
or
Section 5(b)(iii) with respect to Party A as the Burdened
Party. For purposes of the Transaction to which this Agreement
relates, Party B’s only obligation under Section 2(a)(i) is to pay the
Fixed Amount on the Fixed Amount Payer Payment
Date.
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(r)
|
Consent
to Recording. Each party hereto consents to the
monitoring or recording, at any time and from time to time, by
the other
party of any and all communications between trading, marketing,
and
operations personnel of the parties and their Affiliates, waives
any
further notice of such monitoring or recording, and agrees to notify
such
personnel of such monitoring or
recording.
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(s)
|
Waiver
of Jury Trial. Each party waives any right it may have
to a trial by jury in respect of any suit, action or proceeding
relating
to this Agreement or any Credit Support
Document.
|
|
(t)
|
Payment
Instructions. Party A hereby agrees that, unless
notified in writing by Party B of other payment instructions, any
and all
amounts payable by Party A to Party B under this Agreement shall
be paid
to the account specified in Item 4 of this Confirmation,
below.
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(u)
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Capacity. Party
A represents to Party B on the date on which Party A enters into
this
Agreement
that it is entering into the Agreement and the Transaction as principal
and not as agent of any person. Deutsche Bank National Trust
Company represents to Party A on the date on which Party B enters
into
this Agreement that Deutsche Bank National Trust Company is executing
the
Agreement not in its individual capacity, but solely
as Supplemental Interest t Trustee on behalf of the
Supplemental Interest Trust with respect to Residential Asset
Securitization Trust 2007-A5.
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(v)
|
Substantial
financial transactions. Each party hereto is hereby
advised and acknowledges as of the date hereof 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
and in the
Pooling and Servicing Agreement relating to such Transaction, as
applicable. This paragraph shall be deemed repeated on the trade
date of
each Transaction.
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|
(w)
|
USA
Patriot Act. In order to comply with laws, rules,
regulations and executive orders in effect from time to time applicable
to
banking institutions, including those relating to the funding of
terrorist
activities and money laundering ("Applicable Law"), Deutsche Bank
National
Trust Company is required to obtain, verify and record certain
information
relating to individuals and entities which maintain a business
relationship with Deutsche Bank National Trust
Company. Accordingly, each of the parties agrees to provide to
Deutsche Bank National Trust Company upon its request from time
to time
such identifying information and documentation as may be available
for
such party in order to enable Deutsche Bank National Trust Company
to
comply with Applicable Law.
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(x)
|
[Reserved].
|
(y) Additional
Definitions.
As
used
in this Agreement, the following terms shall have the meanings set forth
below,
unless the context clearly requires otherwise:
“Approved
Ratings Threshold” means each of the S&P Approved Ratings
Threshold and the Moody’s First Trigger Ratings Threshold.
“Approved
Replacement” means, with respect to a Market Quotation, an entity
making such Market Quotation, which entity would satisfy conditions (a),
(b),(c)
and (d) of the definition of Permitted Transfer (as determined by Party B
in its
sole discretion, acting in a commercially reasonable manner) if such entity
were
a Transferee, as defined in the definition of Permitted Transfer.
“Eligible
Guarantee” means an unconditional and irrevocable guarantee of all
present and future payment obligations and obligations to post collateral
of
Party A or an Eligible Replacement to Party B under this Agreement that is
provided by an Eligible Guarantor as principal debtor rather than surety
and
that is directly enforceable by Party B, the form and substance of which
guarantee are subject to the Rating Agency Condition with respect to
S&P.
“Eligible
Guarantor” means an entity that (A) has credit ratings from S&P at
least equal to the S&P Approved Ratings Threshold and (B) has credit ratings
from Moody’s at least equal to the Moody’s Second Trigger Ratings Threshold,
provided, for the avoidance of doubt, that an Eligible Guarantee of an Eligible
Guarantor with credit ratings below the Moody’s First Trigger Ratings Threshold
will not cause a Collateral Event (as defined in the Credit Support Annex)
not
to occur or continue with respect to Moody’s.
“Eligible
Replacement” means an entity (A) (i) (a) that has credit ratings from
S&P at least equal to the S&P Approved Ratings Threshold, and (b) has
credit ratings from Moody’s at least equal to the Moody’s Second Trigger Ratings
Threshold, provided, for the avoidance of doubt, that an Eligible Replacement
with credit ratings below the Moody’s First Trigger Ratings Threshold will not
cause a Collateral Event (as defined in the Credit Support Annex) not to
occur
or continue with respect to Moody’s, or (ii) the present and future obligations
(for the avoidance of doubt, not limited to payment obligations) of which
entity
to Party B under this Agreement are guaranteed pursuant to an Eligible
Guaranteeand (B) that has executed an Item 1115 Agreement with Depositor
and
Sponsor.
“Estimated
Swap Termination Payment” means, with respect to an Early
Termination Date, an amount determined by Party A in good faith and in a
commercially reasonable manner as the maximum payment that could be owed
by
Party B to Party A in respect of such Early Termination Date pursuant to
Section
6(e) of this Agreement, taking into account then current market
conditions.
“Firm
Offer” means (A) with respect to an Eligible Replacement, a
quotation from such Eligible Replacement (i) in an amount equal to the actual
amount payable by or to Party B in consideration of an agreement between
Party B
and such Eligible Replacement to replace Party A as the counterparty to this
Agreement by way of novation or, if such novation is not possible, an agreement
between Party B and such Eligible Replacement to enter into a Replacement
Transaction (assuming that all Transactions hereunder become Terminated
Transactions), and (ii) that constitutes an offer by such Eligible Replacement
to replace Party A as the counterparty to this Agreement or enter a Replacement
Transaction that will become legally binding upon such Eligible Replacement
upon
acceptance by Party B, and (B) with respect to an Eligible Guarantor, an
offer
by such Eligible Guarantor to provide an Eligible Guarantee that will become
legally binding upon such Eligible Guarantor upon acceptance by the
offeree.
“Moody’s”
means ▇▇▇▇▇’▇ Investors Service, Inc., or any successor thereto.
“Moody’s
First Trigger Ratings Event” means that no Relevant Entity has
credit ratings from Moody’s at least equal to the Moody’s First Trigger Ratings
Threshold.
“Moody’s
First Trigger Ratings Threshold” means, with respect to Party A,
the guarantor under an Eligible Guarantee or an Eligible Replacement, (i)
if
such entity has a short-term unsecured and unsubordinated debt rating from
Moody’s, a long-term unsecured and unsubordinated debt rating or counterparty
rating from Moody’s of “A2” and a short-term unsecured and unsubordinated debt
rating from Moody’s of “Prime-1”, or (ii) if such entity does not have a
short-term unsecured and unsubordinated debt rating or counterparty rating
from
Moody’s, a long-term unsecured and unsubordinated debt rating or counterparty
rating from Moody’s of “A1”.
“Moody’s
Second Trigger Ratings Event”
means that no Relevant Entity has credit ratings from Moody’s at least equal to
the Moody’s Second Trigger Ratings Threshold.
“Moody’s
Second Trigger Ratings Threshold” means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of “A3” and a
short-term unsecured and unsubordinated debt rating from Moody’s of “Prime-2”,
or (ii) if such entity does not have a short-term unsecured and unsubordinated
debt rating from Moody’s, a long-term unsecured and unsubordinated debt rating
or counterparty rating from Moody’s of “A3”.
“Permitted
Transfer” means a transfer by novation by Party A pursuant to
Section 6(b)(ii), Part 5(d), Part 5(b)(v), Part 5(e) or the second sentence
of
Section 7 (as amended herein) to a transferee (the
“Transferee”) of all, but not less than all, of Party A’s
rights, liabilities, duties and obligations under this Agreement, with respect
to which transfer each of the following conditions is satisfied: (a)
the Transferee is an Eligible Replacement; (b) Party A and the Transferee
are
both “dealers in notional principal contracts” within the meaning of Treasury
regulations section 1.1001-4 (in each case as certified by such entity);
(c) as
of the date of such transfer the Transferee would not be required to withhold
or
deduct on account of Tax from any payments under this Agreement or would
be
required to gross up for such Tax under Section 2(d)(i)(4); (d) an Event
of
Default or Termination Event would not occur as a result of such transfer;
(e)
pursuant to a written instrument (the “Transfer Agreement”),
the Transferee acquires and assumes all rights and obligations of Party A
under
the Agreement and the relevant Transaction; (f) Party B shall have determined,
in its sole discretion, acting in a commercially reasonable manner, that
such
Transfer Agreement is effective to transfer to the Transferee all, but not
less
than all, of Party A’s rights and obligations under the Agreement and all
relevant Transactions; (g) Party A will be responsible for any costs or expenses
incurred in connection with such transfer (including any replacement cost
of
entering into a replacement transaction); (h) either (A) Moody’s has been given
prior written notice of such transfer and the Rating Agency Condition is
satisfied with respect to S&P or (B) each Swap Rating Agency has been given
prior written notice of such transfer and such transfer is in connection
with
the assignment and assumption of this Agreement without modification of its
terms, other than party names, dates relevant to the effective date of such
transfer, tax representations (provided that the representations in Part
2(a)(i)
are not modified) and any other representations regarding the status of the
substitute counterparty of the type included in Part 5(b)(iv), Part 5(v)(i)(2)
or Part 5(v)(ii), notice information and account details; and (i) such transfer
otherwise complies with the terms of the Pooling and Servicing
Agreement.
“Rating
Agency Condition” means, with respect to any particular proposed
act or omission to act hereunder and each Swap Rating Agency specified in
connection with such proposed act or omission, that the party acting or failing
to act must consult with each of the specified Swap Rating Agencies and receive
from each such Swap Rating Agency a prior written confirmation that the proposed
action or inaction would not cause a downgrade or withdrawal of the then-current
rating of any Certificates or Notes.
“Relevant
Entity” means Party A and, to the extent applicable, a guarantor
under an Eligible Guarantee.
“Replacement
Transaction” means, with respect to any Terminated Transaction or
group of Terminated Transactions, a transaction or group of transactions
that
(i) would have the effect of preserving for Party B the economic equivalent
of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated Transaction
or group of Terminated Transactions that would, but for the occurrence of
the
relevant Early Termination Date, have been required after that Date, and
(ii)
has terms which are substantially the same as this Agreement, including,
without
limitation, rating triggers, Regulation AB compliance, and credit support
documentation, save for the exclusion of provisions relating to Transactions
that are not Terminated Transaction, as determined by Party B in its sole
discretion, acting in a commercially reasonable manner.
“Required
Ratings Downgrade Event” means that no Relevant Entity has credit
ratings at least equal to the Required Ratings Threshold. For
purposes of determining whether a Required Ratings Downgrade Event has occurred,
each Relevant Entity shall provide its credit ratings to Party B in writing,
upon request of Party B.
“Required
Ratings Threshold” means each of the S&P Required Ratings
Threshold and the Moody’s Second Trigger Ratings Threshold.
“S&P”
means Standard & Poor's Rating Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., or any successor thereto.
“S&P
Approved Ratings Downgrade Event” means that no Relevant Entity
has credit ratings at least equal to the S&P Approved Ratings
Threshold.
“S&P
Approved Ratings Threshold” means, with respect to Party A, the
guarantor under an Eligible Guarantee or an Eligible Replacement, a short-term
unsecured and unsubordinated debt rating from S&P of “A-1”, or, if such
entity does not have a short-term unsecured and unsubordinated debt rating
from
S&P, a long-term unsecured and unsubordinated debt rating or counterparty
rating from S&P of “A+”.
“S&P
Required Ratings Downgrade Event” means that no Relevant Entity
has credit ratings at least equal to the S&P Required Ratings
Threshold.
“S&P
Required Ratings Threshold” means, with respect to Party A, the
guarantor under an Eligible Guarantee or an Eligible Replacement, a long-term
unsecured and unsubordinated debt rating or counterparty rating from S&P of
“BBB-”.
“Swap
Rating Agencies” means, with respect to any date of determination, each
of S&P and Moody’s, to the extent that each such rating agency is then
providing a rating for any of the Class 1-A-1, Class 1-A-2, Class 1-A-3,
Class
1-A-6, (the “Certificates”) or any notes backed by the Certificates (the
“Notes”).
IN
WITNESS WHEREOF, the parties have executed this Schedule by their duly
authorized officers as of the date hereof.
BEAR
▇▇▇▇▇▇▇ FINANCIAL PRODUCTS
INC.
By:
/s/
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Title: Authorized
Signatory
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DEUTSCHE
BANK NATIONAL TRUST COMPANY, NOT IN ITS INDIVIDUAL CAPACITY, BUT
SOLELY AS
SUPPLEMENTAL INTEREST TRUSTEE ON BEHALF OF THE SUPPLEMENTAL INTEREST
TRUST
WITH RESPECT TO RESIDENTIAL ASSET SECURITIZATION TRUST
2007-A5
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By:
/s/
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Title:
Associate
Annex
A
Paragraph
13 of the Credit Support Annex
ANNEX
A
ISDA®
CREDIT
SUPPORT ANNEX
to
the
Schedule to the
dated
as
of March 29, 2007 between
Bear
▇▇▇▇▇▇▇ Financial Products Inc. (hereinafter referred to as “Party
A” or “Pledgor”)
and
DEUTSCHE
BANK NATIONAL TRUST
COMPANY, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS SUPPLEMENTAL INTEREST
TRUSTEE ON BEHALF OF THE SUPPLEMENTAL INTEREST TRUST WITH RESPECT TO RESIDENTIAL
ASSET SECURITIZATION TRUST 2007-A5 (hereinafter referred to as
“Party B” or “Secured
Party”)
For
the
avoidance of doubt, and notwithstanding anything to the contrary that may
be
contained in the Agreement, this Credit Support Annex shall relate solely
to the
Transaction documented in the Confirmation dated March 29, 2007, between
Party A
and Party B, Reference Number FXNEC9358, FXNEC9359, FXNEC9360 and
FXNEC9361
Paragraph
13. Elections and Variables.
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Security
Interest for “Obligations”. The term
“Obligations” as used in this
Annex includes the following additional
obligations:
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With
respect to Party A: not applicable.
With
respect to Party B: not applicable.
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Credit
Support Obligations.
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Delivery
Amount, Return Amount and Credit Support
Amount.
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“Delivery
Amount” has the meaning specified in Paragraph
3(a) as amended (I) by deleting the words “upon a demand made by the Secured
Party on or promptly following a Valuation Date” and inserting in lieu thereof
the words “not later than the close of business on each Valuation Date” and (II)
by deleting in its entirety the sentence beginning “Unless otherwise specified
in Paragraph 13” and ending “(ii) the Value as of that Valuation Date of all
Posted Credit Support held by the Secured Party.” and inserting in lieu thereof
the following:
The
“Delivery Amount” applicable to the
Pledgor for any Valuation Date will equal the greatest of
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(1)
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the
amount by which (a) the S&P Credit Support Amount for such Valuation
Date exceeds (b) the S&P Value as of such Valuation Date of all Posted
Credit Support held by the Secured
Party,
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(2)
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the
amount by which (a) the Moody’s First Trigger Credit Support Amount for
such Valuation Date exceeds (b) the Moody’s First Trigger Value as of such
Valuation Date of all Posted Credit Support held by the Secured
Party,
and
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(3)
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the
amount by which (a) the Moody’s Second Trigger Credit Support Amount for
such Valuation Date exceeds (b) the Moody’s Second Trigger Value as of
such Valuation Date of all Posted Credit Support held by the Secured
Party.
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“Return
Amount” has the meaning specified in Paragraph 3(b) as amended by
deleting in its entirety the sentence beginning “Unless otherwise specified in
Paragraph 13” and ending “(ii) the Credit Support Amount.” and inserting in lieu
thereof the following:
The
“Return Amount” applicable to the Secured Party for
any Valuation Date will equal the least of
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(1)
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the
amount by which (a) the S&P Value as of such Valuation Date of all
Posted Credit Support held by the Secured Party exceeds (b) the
S&P
Credit Support Amount for such Valuation
Date,
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(2)
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the
amount by which (a) the Moody’s First Trigger Value as of such Valuation
Date of all Posted Credit Support held by the Secured Party exceeds
(b)
the Moody’s First Trigger Credit Support Amount for such Valuation Date,
and
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(3)
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the
amount by which (a) the Moody’s Second Trigger Value as of such Valuation
Date of all Posted Credit Support held by the Secured Party exceeds
(b)
the Moody’s Second Trigger Credit Support Amount for such Valuation
Date.
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“Credit
Support Amount” shall not apply. For purposes of
calculating any Delivery Amount or Return Amount for any Valuation Date,
reference shall be made to the S&P Credit Support Amount, the Moody’s First
Trigger Credit Support Amount, or the Moody’s Second Trigger Credit Support
Amount, in each case for such Valuation Date, as provided in
Paragraphs 13(b)(i)(A) and 13(b)(i)(B), above.
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Eligible
Collateral.
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The
items
set forth on the schedule of Eligible Collateral attached as Schedule A hereto
will qualify as “Eligible Collateral” (for the
avoidance of doubt, all Eligible Collateral described in (D) and (E) of column
one of the Collateral Schedule to be denominated in USD).
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Other
Eligible Support.
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The
following items will qualify as “Other Eligible
Support” for the party specified:
Not
applicable.
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Threshold.
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“Independent
Amount” means zero with respect to Party A and Party
B.
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“Threshold”
means, with respect to Party A and any Valuation Date, zero if (i) a Collateral
Event has occurred and has been continuing (x) for at least 30 days or
(y) since
this Annex was executed or (ii) a Required Ratings Downgrade Event has
occurred
and is continuing; otherwise, infinity.
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“Threshold”
means, with respect to Party B and any Valuation Date,
infinity.
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“Minimum
Transfer Amount” means USD 100,000 with respect to Party A and
Party B; provided, however, that if the aggregate Certificate Principal
Balance
of the Certificates and the aggregate principal balance of the Notes rated
by
S&P is at the time of any transfer less than USD 50,000,000, the
“Minimum Transfer Amount” shall be USD
50,000.
Rounding:
The Delivery Amount will be rounded up to the nearest integral multiple
of USD
10,000. The Return Amount will be rounded down to the nearest integral
multiple
of USD 10,000.
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Valuation
and Timing.
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“Valuation
Agent” means Party A.
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“Valuation
Date” means each Local Business Day on which any of the
S&P Credit Support Amount, the ▇▇▇▇▇’▇ First Trigger Credit Support
Amount or the ▇▇▇▇▇’▇ Second Trigger Credit Support Amount is greater than
zero.
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“Valuation
Time” means the close of business in the city of the
Valuation Agent on the Local Business Day immediately preceding
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. The Valuation
Agent will notify each party (or the other party, if the Valuation
Agent
is a party) of its calculations not later than the Notification
Time on
the applicable Valuation Date (or in the case of Paragraph 6(d),
the Local
Business Day following the day on which such relevant calculations
are
performed).”
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“Notification
Time” means 11:00 a.m., New York time, on a Local Business
Day.
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External
Calculations. At any time at which Party A (or, to the
extent applicable, its Credit Support Provider) does not have a
long-term
unsubordinated and unsecured debt rating of at least “BBB+” from S&P,
the Valuation Agent shall (at its own expense) obtain external
calculations of Party B’s Exposure from at least two Reference
Market-makers on the last Local Business Day of each calendar
month. Any determination of the S&P Credit Support Amount
shall be based on the greatest of Party B’s Exposure determined by the
Valuation Agent and such Reference Market-makers. Such external
calculation may not be obtained from the same Reference Market-maker
more
than four times in any 12-month
period.
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Notice
to S&P. At any time at which Party A (or, to the
extent applicable, its Credit Support Provider) does not have a
long-term
unsubordinated and unsecured debt rating of at least “BBB+” from S&P,
the Valuation Agent shall provide to S&P not later than the
Notification Time on the Local Business Day following each Valuation
Date
its calculations of Party B’s Exposure and the S&P Value of any
Eligible Credit Support or Posted Credit Support for that Valuation
Date. The Valuation Agent shall also provide to S&P any
external marks of Party B’s
Exposure.
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Conditions
Precedent and Secured Party’s Rights and Remedies. The
following Termination Events will be a “Specified
Condition” for the party specified (that party being the Affected
Party if the Termination Event occurs with respect to that
party): With respect to Party A and Party B: None.
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Substitution.
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“Substitution
Date” has the meaning specified in Paragraph
4(d)(ii).
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Consent. If
specified here as applicable, then the Pledgor must obtain the
Secured
Party’s consent for any substitution pursuant to Paragraph
4(d): Inapplicable.
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Dispute
Resolution.
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“Resolution
Time” means 1:00 p.m. New York time on the Local Business
Day following the date on which the notice of the dispute is given
under
Paragraph 5.
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Value. Notwithstanding
anything to the contrary in Paragraph 12, for the purpose of Paragraphs
5(i)(C) and 5(ii), the S&P Value, ▇▇▇▇▇’▇ First Trigger Value, and
▇▇▇▇▇’▇ Second Trigger Value, on any date, of Eligible Collateral other
than Cash will be calculated as
follows:
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For
Eligible Collateral in the form of securities listed in Paragraph 13(b)(ii):
the
product of (1)(x) the bid-side quotation at the Valuation Time for such
securities on the principal national securities exchange on which such
securities are listed, or (y) if such securities are not listed on a national
securities exchange, the arithmetic mean of the bid-side quotations for such
securities quoted at the Valuation Time by any three principal market makers
for
such securities selected by the Valuation Agent, provided that if only two
bid-side quotations are obtained, then the arithmetic mean of such two bid-side
quotations will be used, and if only one bid-side quotation is obtained,
such
quotation shall be used, or (z) if no such bid price is listed or quoted
for
such date, the bid price listed or quoted (as the case may be) at the Valuation
Time for the day next preceding such date on which such prices were available
and (2) the applicable Valuation Percentage for such Eligible
Collateral.
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Alternative. The
provisions of Paragraph 5 will
apply.
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Holding
and Using Posted
Collateral.
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Eligibility
to Hold Posted Collateral; Custodians. Party B (or its
Custodian) will be entitled to hold Posted Collateral pursuant
to
Paragraph 6(b), provided that the following conditions applicable
to it
are satisfied:
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(1)
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it
is not a Defaulting Party.
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(2)
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Posted
Collateral consisting of Cash or certificated securities that cannot
be
paid or delivered by book-entry may be held only in any state of
the
United States which has adopted the Uniform Commercial
Code.
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(3)
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in
the case of any Custodian for Party B, such Custodian (or, to the
extent
applicable, its parent company or credit support provider) shall
then have
a short-term unsecured and unsubordinated debt rating from S&P of at
least “A-1”.
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Initially,
the Custodian for Party B is: The Supplemental Interest
Trustee
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Use
of Posted Collateral. The provisions of Paragraph
6(c) will not apply to Party B, and Party B shall not have any
right to
use Posted Collateral or take any action specified in such Paragraph
6(c).
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Distributions
and Interest Amount.
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Interest
Rate. The “Interest
Rate” will be the actual interest rate earned on Posted
Collateral in the form of Cash that is held by Party B or its Custodian.
Posted Collateral in the form of Cash shall be invested in such
overnight
(or redeemable within two Local Business Days of demand) Permitted
Investments rated at least (x) AAAm or AAAm-G by S&P and (y) Prime-1
by ▇▇▇▇▇’▇ or Aaa by ▇▇▇▇▇’▇, as directed by Party A. Gains and
losses incurred in respect of any investment of Posted Collateral
in the
form of Cash in Permitted Investments as directed by Party A shall
be for
the account of Party A.
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Amendment
of Paragraph 6(d)(i) – Distributions. Clause
(d)(i) of Paragraph 6 shall be amended and restated to read in
its
entirety as follows:
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“(i) Distributions. Subject
to Paragraph 4(a), if Party B receives Distributions on a Local Business
Day, it
will Transfer to Party A not later than the following Local Business Day
any
Distributions it receives to the extent that a Delivery Amount would not
be
created or increased by that Transfer, as calculated by the Valuation Agent
(and
the date of calculation will be deemed to be a Valuation Date for this purpose).
”
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Amendment
of Paragraph 6(d)(ii) – Interest Amount. Clause
(d)(ii) of Paragraph 6 shall be amended and restated to read in
its
entirety as follows:
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“(ii)
Interest Amount. In lieu of any interest,
dividends or other amounts paid with respect to Posted Collateral
in the
form of Cash (all of which may be retained by the Secured Party),
the
Secured Party will Transfer to the Pledgor on the 20th day of each
calendar month (or if such day is not a Local Business Day, the
next Local
Business Day) the Interest Amount. Any Interest Amount or
portion thereof not Transferred pursuant to this Paragraph will
constitute
Posted Collateral in the form of Cash and will be subject to the
security
interest granted under Paragraph 2. For purposes of calculating
the Interest Amount the amount of interest calculated for each
day of the
interest period shall be compounded monthly.” Secured Party
shall not be obligated to transfer any Interest Amount unless and
until it
has received such amount.
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Additional
Representation(s). There are no additional
representations by either party.
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Other
Eligible Support and Other Posted
Support.
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“Value”
with respect to Other Eligible Support and Other Posted Support
means: not
applicable.
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“Transfer”
with respect to Other Eligible Support and Other Posted Support
means: not
applicable.
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Demands
and Notices.All demands, specifications and notices under
this Annex will be made pursuant to the Notices Section of this
Agreement,
except that any demand, specification or notice shall be given
to or made
at the following addresses, or at such other address as the relevant
party
may from time to time designate by giving notice (in accordance
with the
terms of this paragraph) to the other
party:
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If
to
Party A, at the address specified pursuant to the Notices Section of this
Agreement.
If
to
Party B, at the address specified pursuant to the Notices Section of this
Agreement.
If
to
Party B’s Custodian: at the address designated in writing from time
to time.
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Address
for Transfers. Each Transfer hereunder shall be
made to the address specified below or to an address specified
in writing
from time to time by the party to which such Transfer will be
made.
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Party
A
account details for holding collateral:
Citibank,
N.A., New
York
ABA
Number:
▇▇▇-▇▇▇▇-▇▇, for the account of Bear, ▇▇▇▇▇▇▇ Securities Corp.
Account
Number:
0925-3186, for further credit to Bear ▇▇▇▇▇▇▇ Financial Products
Inc.
Sub-account Number:
102-04654-1-3
Attention:
Derivatives Department
Party
B’s
Custodian account details for holding collateral:
Deutsche
Bank Trust
Co-Americas
▇▇▇
▇▇▇▇, ▇▇
▇▇▇▇▇
ABA
▇▇▇-▇▇▇-▇▇▇
Account:
▇▇▇▇▇▇▇▇
Name
NYLTD Funds
Control-Stars West
Re:
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇-▇▇
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▇▇▇▇▇
Provisions.
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Collateral
Account. Party B shall open and maintain a
segregated account, which shall be an Eligible Account, and hold,
record
and identify all Posted Collateral in such segregated
account.
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Agreement
as to Single Secured Party and Single Pledgor. Party A and
Party B hereby agree that, notwithstanding anything to the contrary
in
this Annex, (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
acknowledgement in the final sentence of Paragraph 8(a) and the
representations in Paragraph 9.
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Calculation
of Value. Paragraph 4(c) is hereby amended by
deleting the word “Value” and inserting in lieu thereof “S&P Value,
▇▇▇▇▇’▇ First Trigger Value, ▇▇▇▇▇’▇ Second Trigger
Value”. Paragraph 4(d)(ii) is hereby amended by (A) deleting
the words “a Value” and inserting in lieu thereof “an S&P Value,
▇▇▇▇▇’▇ First Trigger Value, and ▇▇▇▇▇’▇ Second Trigger Value” and (B)
deleting the words “the Value” and inserting in lieu thereof “S&P
Value, ▇▇▇▇▇’▇ First Trigger Value, and ▇▇▇▇▇’▇ Second Trigger
Value”. Paragraph 5 (flush language) is hereby amended by
deleting the word “Value” and inserting in lieu thereof “S&P Value,
▇▇▇▇▇’▇ First Trigger Value, or ▇▇▇▇▇’▇ Second Trigger
Value”. Paragraph 5(i) (flush language) is hereby amended by
deleting the word “Value” and inserting in lieu thereof “S&P Value,
▇▇▇▇▇’▇ First Trigger Value, and ▇▇▇▇▇’▇ Second Trigger
Value”. Paragraph 5(i)(C) is hereby amended by deleting the
word “the Value, if” and inserting in lieu thereof “any one or more of the
S&P Value, ▇▇▇▇▇’▇ First Trigger Value, or ▇▇▇▇▇’▇ Second Trigger
Value, as may be”. Paragraph 5(ii) is hereby amended by (1)
deleting the first instance of the words “the Value” and inserting in lieu
thereof “any one or more of the S&P Value, ▇▇▇▇▇’▇ First Trigger
Value, or ▇▇▇▇▇’▇ Second Trigger Value” and (2) deleting the second
instance of the words “the Value” and inserting in lieu thereof “such
disputed S&P Value, ▇▇▇▇▇’▇ First Trigger Value, or ▇▇▇▇▇’▇ Second
Trigger Value”. Each of Paragraph 8(b)(iv)(B) and Paragraph
11(a) is hereby amended by deleting the word “Value” and inserting in lieu
thereof “least of the S&P Value, ▇▇▇▇▇’▇ First Trigger Value, and
▇▇▇▇▇’▇ Second Trigger Value”.
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Form
of Annex. Party A and Party B hereby
agree that the text of Paragraphs 1 through 12, inclusive, of this
Annex
is intended to be the printed form of ISDA Credit Support Annex
(Bilateral
Form - ISDA Agreements Subject to New York Law Only version) as
published
and copyrighted in 1994 by the International Swaps and Derivatives
Association, Inc.
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Events
of Default. Clause (iii) of Paragraph 7 shall not
apply to Party B.
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Expenses. Notwithstanding
anything to the contrary in 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 any Transfer of Eligible
Collateral.
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Withholding. Paragraph
6(d)(ii) is hereby amended by inserting immediately after “the Interest
Amount” in the fourth line thereof the words “less any
applicable withholding taxes.”
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(ix) Additional
Definitions. As used in this Annex:
“Collateral
Event” means that no Relevant Entity has credit
ratings at least equal to the Approved Ratings Threshold.
“DV01”
means, with respect to a Transaction and any date of determination, the
estimated change in the Secured Party’s Transaction Exposure with respect to
such Transaction that would result from a one basis point change in the relevant
swap curve on such date, as determined by the Valuation Agent in good faith
and
in a commercially reasonable manner. The Valuation Agent shall, upon
request of Party B, provide to Party B a statement showing in reasonable
detail
such calculation.
“Exposure”
has the meaning specified in Paragraph 12, except that after the word
“Agreement” the words “(assuming, for this purpose only, that Part 1(f) of the
Schedule is deleted)” shall be inserted.
“Local
Business Day” means, for purposes of this Annex: any day on which
(A) commercial banks are open for business (including dealings in foreign
exchange and foreign currency deposits) in New York and the location of Party
A,
Party B and any Custodian, and (B) in relation to a Transfer of Eligible
Collateral, any 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 in foreign exchange
and foreign deposits) in New York and the location of Party A, Party B and
any
Custodian.
“▇▇▇▇▇’▇
First Trigger Credit Support Amount” means,
for any Valuation Date, the excess, if any, of
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(I)
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(A)
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for
any Valuation Date on which (I) a ▇▇▇▇▇’▇ First Trigger Ratings Event has
occurred and has been continuing (x) for at least 30 Local Business
Days
or (y) since this Annex was executed and (II) it is not the case
that a
▇▇▇▇▇’▇ Second Trigger Ratings Event has occurred and been continuing
for
at least 30 Local Business Days, an amount equal to the greater
of (a)
zero and (b) the sum of (i) the Secured Party’s Exposure for such
Valuation Date and (ii) the sum, for each Transaction to which
this Annex
relates, of the lesser of (x) the product of the ▇▇▇▇▇’▇ First Trigger
DV01 Multiplier and DV01 for such Transaction and such Valuation
Date and
(y) the product of (i) ▇▇▇▇▇’▇ First Trigger
Notional Amount Multiplier, (ii) if a Scale Factor is specified
in such
Transaction, the Scale Factor (as defined in such Transaction)
for such
Transaction, or, if no Scale Factor is specified in such Transaction,
1
and (iii) the Notional Amount for such Transaction for the Calculation
Period for such Transaction (each as defined in the related Confirmation)
which includes such Valuation Date,
or
|
|
|
(B)
|
for
any other Valuation Date, zero,
over
|
|
|
(II)
|
the
Threshold for Party A such Valuation
Date.
|
“▇▇▇▇▇’▇
First Trigger DV01 Multiplier” means 15.
“▇▇▇▇▇’▇
First Trigger Value” means, on any date and with respect to any
Eligible Collateral other than Cash, the bid price obtained by the Valuation
Agent multiplied by the ▇▇▇▇▇’▇ First Trigger Valuation Percentage for such
Eligible Collateral set forth in Paragraph 13(b)(ii).
“▇▇▇▇▇’▇
First Trigger Notional Amount Multiplier” means 2%.
“▇▇▇▇▇’▇
Second Trigger Credit Support Amount” means, for any Valuation
Date, the excess, if any, of
|
|
(I)
|
(A)
|
for
any Valuation Date on which it is the case that a ▇▇▇▇▇’▇ Second Trigger
Ratings Event has occurred and been continuing for at least 30
Local
Business Days, an amount equal to the greatest of (a) zero, (b)
the
aggregate amount of the next payment due to be paid by Party A
under each
Transaction to which this Annex relates, and (c) the sum of (x)
the
Secured Party’s Exposure for such Valuation Date and (y) the sum, for each
Transaction to which this Annex relates,
of:
|
if
such
Transaction is not a Transaction-Specific Hedge, the lesser of (i) the
product
of the ▇▇▇▇▇’▇ Second Trigger DV01 Multiplier and DV01 for such Transaction and
such Valuation Date and (ii) the product of (1) the ▇▇▇▇▇’▇ Second Trigger
Notional Amount Multiplier, (2) if a Scale Factor is specified in such
Transaction, the Scale Factor (as defined in such Transaction) for such
Transaction, or, if no Scale Factor is specified in such Transaction, 1
and (3)
the Notional Amount for such Transaction for the Calculation Period for
such
Transaction (each as defined in the related Confirmation) which includes
such
Valuation Date]; or
if
such
Transaction is a Transaction-Specific Hedge, the lesser of (i) the product
of
the ▇▇▇▇▇’▇ Second Trigger Transaction-Specific Hedge DV01 Multiplier and DV01
for such Transaction and such Valuation Date and (ii) the product of (1)
the
▇▇▇▇▇’▇ Second Trigger Transaction-Specific Hedge Notional Amount Multiplier,
(2) if a Scale Factor is specified in such Transaction, the Scale Factor
(as
defined in such Transaction) for such Transaction, or, if no Scale Factor
is
specified in such Transaction, 1 and (3) the Notional Amount for such
Transaction for the Calculation Period for such Transaction (each as defined
in
the related Confirmation) which includes such Valuation Date;
or
|
|
(B)
|
for
any other Valuation Date, zero,
over
|
|
|
(II)
|
the
Threshold for Party A for such Valuation
Date.
|
“▇▇▇▇▇’▇
Second Trigger DV01 Multiplier” means 50.
“▇▇▇▇▇’▇
Second Trigger Notional Amount Multiplier” means 8%.
“▇▇▇▇▇’▇
Second Trigger Transaction-Specific Hedge DV01 Multiplier” means
65.
“▇▇▇▇▇’▇
Second Trigger Transaction-Specific Hedge Notional Amount
Multiplier” means 10%.
“▇▇▇▇▇’▇
Second Trigger Value” means, on any date and with respect to any
Eligible Collateral other than Cash, the bid price obtained by the Valuation
Agent multiplied by the ▇▇▇▇▇’▇ Second Trigger Valuation Percentage for such
Eligible Collateral set forth in Paragraph 13(b)(ii).
“Remaining
Weighted Average Maturity” means, with respect to a
Transaction, the expected weighted average maturity for such Transaction
as
determined by the Valuation Agent.
“S&P
Credit Support Amount” means, for any Valuation Date, the excess,
if any, of
|
|
(I)
|
(A)
|
for
any Valuation Date on which (i) an S&P Approved Ratings Downgrade
Event has occurred and been continuing for at least 30 days or
(ii) a
S&P Required Ratings Downgrade Event has occurred and is continuing,
an amount equal to the sum of (1) 100.0% of the Secured Party’s Exposure
for such Valuation Date and (2) the sum, for each Transaction to
which
this Annex relates, of the product of (i) the Volatility Buffer
for such
Transaction, (ii) if a Scale Factor is specified in such Transaction,
the
Scale Factor (as defined in such Transaction) for such Transaction,
or, if
no Scale Factor is specified in such Transaction, 1 and (iii) the
Notional
Amount of such Transaction for the Calculation Period of such Transaction
(each as defined in the related Confirmation) which includes such
Valuation Date, or
|
|
|
(B)
|
for
any other Valuation Date, zero,
over
|
|
|
(II)
|
the
Threshold for Party A for such Valuation
Date.
|
“S&P
Value” means, on any date and with respect to any Eligible
Collateral other than Cash, the product of (A) the bid price obtained by
the
Valuation Agent for such Eligible Collateral and (B) the S&P Valuation
Percentage for such Eligible Collateral set forth in paragraph
13(b)(ii).
“Transaction
Exposure” means, for any Transaction, Exposure determined as if
such Transaction were the only Transaction between the Secured Party and
the
Pledgor.
“Transaction-Specific
Hedge” means any Transaction that is (i) an interest rate swap in
respect of which (x) the notional amount of the interest rate swap is “balance
guaranteed” or (y) the notional amount of the interest rate swap for any
Calculation Period (as defined in the related Confirmation) otherwise is
not a
specific dollar amount that is fixed at the inception of the Transaction,
(ii)
an interest rate cap, (iii) an interest rate floor or (iv) an interest rate
swaption.
“Valuation
Percentage” shall mean, for purposes of determining the S&P
Value, ▇▇▇▇▇’▇ First Trigger Value, or ▇▇▇▇▇’▇ Second Trigger Value with respect
to any Eligible Collateral or Posted Collateral, the applicable S&P
Valuation Percentage, ▇▇▇▇▇’▇ First Trigger Valuation Percentage, or ▇▇▇▇▇’▇
Second Trigger Valuation Percentage for such Eligible Collateral or Posted
Collateral, respectively, in each case as set forth in Paragraph
13(b)(ii).
“Value”
shall mean, in respect of any date, the related S&P Value, the related
▇▇▇▇▇’▇ First Trigger Value, and the related ▇▇▇▇▇’▇ Second Trigger
Value.
“Volatility
Buffer” means, for any Transaction, the related percentage set
forth in the following table.
|
The
higher of the S&P credit rating of (i) Party A and (ii) the
Credit Support Provider of Party A, if applicable
|
Remaining
Weighted Average Maturity
up
to 3 years
|
Remaining
Weighted Average Maturity
up
to 5 years
|
Remaining
Weighted Average Maturity
up
to 10 years
|
Remaining
Weighted Average Maturity
up
to 30 years
|
|
“A-2”
or higher
|
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%
|
[Remainder
of this page intentionally left blank]
IN
WITNESS WHEREOF, the parties have
executed this Annex by their duly authorized representatives as of the date
of
the Agreement.
|
BEAR
▇▇▇▇▇▇▇ FINANCIAL PRODUCTS INC.
By:/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, NOT IN ITS INDIVIDUAL CAPACITY,
BUT SOLELY AS
SUPPLEMENTAL INTEREST TRUSTEE ON BEHALF OF THE SUPPLEMENTAL
INTEREST TRUST
WITH RESPECT TO RESIDENTIAL ASSET SECURITIZATION TRUST
2007-A5
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
|
|
|
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Title: Authorized
Signatory Date:
|
Name:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Associate
Date:
|
SCHEDULE
A
ELIGIBLE
COLLATERAL
|
ISDA
Collateral Asset Definition (ICAD) Code
|
Remaining
Maturity in Years
|
S&P
Valuation
Percentage
|
▇▇▇▇▇’▇
First
Trigger Valuation Percentage
|
▇▇▇▇▇’▇
Second
Trigger
Valuation
Percentage
|
|
(A) US-CASH
|
N/A
|
100%
|
100%
|
100%
|
|
(B) EU-CASH
|
N/A
|
92.5%
|
98%
|
94%
|
|
(C) GB-CASH
|
N/A
|
94.1%
|
98%
|
95%
|
|
(D) US-TBILL
US-TNOTE
US-TBOND
|
||||
|
1
or less
|
98.9%
|
100%
|
100%
|
|
|
More
than 1 but not more than 2
|
98.0%
|
100%
|
99%
|
|
|
More
than 2 but not more than 3
|
97.4%
|
100%
|
98%
|
|
|
More
than 3 but not more than 5
|
95.5%
|
100%
|
97%
|
|
|
More
than 5 but not more than 7
|
93.7%
|
100%
|
96%
|
|
|
More
than 7 but not more than 10
|
92.5%
|
100%
|
94%
|
|
|
More
than 10 but not more than 20
|
91.1%
|
100%
|
90%
|
|
|
More
than 20
|
88.6%
|
100%
|
88%
|
|
|
(E) US-GNMA
US-FNMA
US-FHLMC
|
||||
|
1
or less
|
98.5%
|
100%
|
99%
|
|
|
More
than 1 but not more than 2
|
97.7%
|
100%
|
99%
|
|
|
More
than 2 but not more than 3
|
97.3%
|
100%
|
98%
|
|
|
More
than 3 but not more than 5
|
94.5%
|
100%
|
96%
|
|
|
More
than 5 but not more than 7
|
93.1%
|
100%
|
93%
|
|
|
More
than 7 but not more than 10
|
90.7%
|
100%
|
93%
|
|
|
More
than 10 but not more than 20
|
87.7%
|
100%
|
89%
|
|
|
More
than 20
|
84.4%
|
100%
|
87%
|
|
|
(F)
Fixed-Rate GA-EUROZONE-GOV
|
Rated
AAA or better by S&P
|
Rated
Aa3 or better by ▇▇▇▇▇'▇
|
Rated
Aa3 or better by ▇▇▇▇▇'▇
|
|
|
1
or less
|
98.8%
|
98%
|
94%
|
|
|
More
than 1 but not more than 2
|
97.9%
|
98%
|
93%
|
|
|
More
than 2 but not more than 3
|
97.1%
|
98%
|
92%
|
|
|
More
than 3 but not more than 5
|
91.2%
|
98%
|
90%
|
|
|
More
than 5 but not more than 7
|
87.5%
|
98%
|
89%
|
|
|
More
than 7 but not more than 10
|
83.8%
|
98%
|
88%
|
|
|
More
than 10 but not more than 20
|
75.5%
|
98%
|
84%
|
|
The
ISDA
Collateral Asset Definition (ICAD) Codes used in this Schedule A are taken
from
the Collateral Asset Definitions (First Edition – June 2003) as published and
copyrighted in 2003 by the International Swaps and Derivatives Association,
Inc.