SCHEDULE to the Master Agreement (Multicurrency-Cross Border) dated as of July 12, 2007 between SWISS RE FINANCIAL PRODUCTS CORPORATION, a corporation organized under the laws of the State of Delaware (“Party A”) and WELLS FARGO BANK, N.A., not...
SCHEDULE
to
the
(Multicurrency-Cross
Border)
dated
as
of
July
12,
2007
between
SWISS
RE FINANCIAL PRODUCTS CORPORATION,
a
corporation organized under the laws of
the
State
of Delaware
(“Party
A”)
and
XXXXX
FARGO BANK, N.A., not individually but solely as securities administrator on
behalf of the Xxxxxxxxxx Mortgage Loan Trust, Series 2007-HE1 with respect
to
the Xxxxxxxxxx Mortgage Loan Trust, Series 2007-HE1 Asset-Backed Pass-Through
Certificates
(“Party
B”)
Part
1
Definitions
Capitalized
terms used herein and not otherwise defined shall have the meaning specified
in
that certain Pooling and Servicing Agreement, dated as of June 1, 2007 (the
“Pooling and Servicing Agreement”), among Stanwich Asset Acceptance Company,
L.L.C., as Depositor, EMC Mortgage Corporation, as Interim Servicer Xxxxxxxxxx
Mortgage Services, LLC, as Servicer, Xxxxx Fargo Bank, N.A., as Master Servicer
and as Securities Administrator and HSBC Bank USA, National Association, as
Trustee (the “Trustee”). For the avoidance of doubt, references herein to a
particular “Section” of this Schedule are references to the corresponding
section of the Master Agreement.
Termination
Provisions
In
this
Agreement:-
|
(a)
|
“Specified
Entity”
means in relation to Party A for the purpose
of:-
|
|
Section
5(a)(v),
|
Not
Applicable
|
|
Section
5(a)(vi),
|
Not
Applicable
|
|
Section
5(a)(vii),
|
Not
Applicable
|
|
Section
5(b)(iv),
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Not
Applicable
|
in
relation to Party B for the purpose of:-
|
Section
5(a)(v),
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Not
Applicable
|
|
Section
5(a)(vi),
|
Not
Applicable
|
|
Section
5(a)(vii),
|
Not
Applicable
|
|
Section
5(b)(iv),
|
Not
Applicable
|
|
(b)
|
“Specified
Transaction”
is not applicable to Party A or Party B for any
purpose.
|
|
(c)
|
The
Events
of Default
specified under Sections 5(a)(ii), 5(a)(iii), 5(a)(iv); and 5(a)(vi)
of
the Agreement will not apply to Party B; provided that Section 5(a)(iii)
shall apply to Party B to the extent that Party B fails to return
a Return
Amount under the Credit Support Annex. With respect to Party A and
Party
B, the provisions of Section 5(a)(v) will not
apply.
|
|
(d)
|
Section
5(a)(vi) “Cross Default” applies to Party
A.
|
“Specified
Indebtedness”
will
have the meaning specified in Section 14, except that such term will not include
insurance contracts entered into in the ordinary course of Party A’s Credit
Support Provider’s insurance business.
“Threshold
Amount”
means an
amount (or its equivalent in any currency) equal to 3% of the shareholders’
equity of Party A’s Credit Support Provider, determined as of the end of the
most recent period for which audited financial statements have been
prepared.
|
(e)
|
Section
5(a)(vii) “Bankruptcy”
applies to Party A and Party B; provided that with respect to Party
B
clauses (2), (7) and (9) will not be applicable as an Event of Default
to
the extent such event relates to nonpayment of indebtedness other
than
that of the related class of Notes; clause (4) will not apply to
Party B
to the extent that it refers to proceedings or petitions instituted
or
presented by Party A or any of its Affiliates; clause (6) will not
apply
to Party B to the extent that it refers to (i) any appointment that
is
contemplated or effected by the ISDA Master Agreement or (ii) any
appointment that Party B has not become subject to clause (8) will
not
apply to Party B to the extent that it applies to Section
5(a)(vii)(2),(4),(6), and (7) (except to the extent that such provisions
are not disapplied with respect to Party
B.
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(f)
|
The
“Credit
Event Upon Merger”
provisions of Section 5(b)(iv) will not apply to Party A and Party
B.
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(g)
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The
“Tax
Event”
provisions of Section 5(b)(ii) will apply, provided the words “(x) any
action taken by a taxing authority or brought in a court of competent
jurisdiction, on or after the date on which a Transaction is entered
into
(regardless of whether such action is taken or brought with respect
to a
party to this Agreement) or (y)” shall be
deleted.
|
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(h)
|
The
“Tax
Event Upon Merger”
provisions of Section 5(b)(iii) will apply, 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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2
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(i)
|
Section
6(b)(ii) will apply; provided that the words “or if a Tax Event Upon
Merger occurs and the Burdened Party is the Affected Party” shall be
deleted.
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(j)
|
The
“Automatic
Early Termination”
provision of Section 6(a) will not apply to either Party A or to
Party
B.
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(k)
|
Payments
on Early Termination.
For the purpose of Section 6(e) of this Agreement:-
|
Market
Quotation will apply and the Second Method will apply; provided,
however,
with
respect to an early termination in which Party A is the Defaulting Party or
sole
Affected Party in respect of an Additional Termination Event or Tax Event Upon
Merger, notwithstanding Section 6 of this Agreement the following amendment
to
this Agreement set forth in clauses (i) to (vi) below shall apply:
For
the
purposes of Section 6(d)(i), Party B’s obligation with respect to the extent of
information to be provided with its calculations is limited to information
Party
B has already received in writing which Party B is able to release without
breaching any contractual obligations or the provisions of any law applicable
to
Party B.
(i)
The
definition of “Market Quotation” shall be deleted in its entirety and replaced
with the following:
“Market
Quotation”
means,
with respect to one or more Terminated Transactions, a Firm Offer which is
(1)
made by a Reference Market-maker that is an Eligible Replacement, (2) for an
amount that would be paid to Party B (expressed as a negative number) or by
Party B (expressed as a positive number) in consideration of an agreement
between Party B and such Reference Market-maker to enter into a transaction
(the
“Replacement
Transaction”)
that
would have the effect of preserving for such party the economic equivalent
of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated Transactions
or group of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have been required after that Date, (3) made
on
the basis that Unpaid Amounts in respect of the Terminated Transaction or group
of Transactions are to be excluded but, without limitation, any payment or
delivery that would, but for the relevant Early Termination Date, have been
required (assuming satisfaction of each applicable condition precedent) after
that Early Termination Date is to be included and (4) made in respect of a
Replacement Transaction with terms substantially the same as those of this
Agreement (save for the exclusion of provisions relating to Transactions that
are not Terminated Transactions).”
3
(ii) The
definition of “Settlement Amount” shall be deleted in its entirety and replaced
with the following:
“Settlement
Amount” means, with respect to any Early Termination Date, an amount (as
determined by Party B in accordance with the Pooling and Servicing Agreement)
equal to the Termination Currency Equivalent of the amount (whether positive
or
negative) of any Market Quotation for the relevant Terminated Transaction or
group of Terminated Transactions that is accepted by Party B in accordance
with
the Pooling and Servicing Agreement so as to become legally binding,
provided
that:
(a) if,
on or
prior to such Early Termination Date, a Market Quotation for the relevant
Terminated Transaction or group of Terminated Transactions is accepted by Party
B so as to become legally binding, the Termination Currency Equivalent of the
amount (whether positive or negative) of such Market Quotation;
(b) if,
on
such Early Termination Date, no Market Quotation for the relevant Terminated
Transaction or group of Terminated Transactions is accepted by Party B so as
to
become legally binding and one or more Market Quotations have been communicated
to Party B and remain capably of becoming legally binding upon acceptance by
Party B, the Termination Currency Equivalent of the amount (whether positive
or
negative) of the lowest of such Market Quotation;
(c) if,
on
such Early Termination Date, no Market Quotation for the relevant Terminated
Transaction or group of Terminated Transactions is accepted by Party B so as
to
become legally binding and no Market Quotations have been communicated to Party
B and remain capable of becoming legally binding upon acceptance by Party B,
Party B’s Loss (whether positive or negative and without reference to Unpaid
Amounts) for the relevant Terminated Transaction or group of Terminated
Transactions; and
(d) At
any
time on or before the Early Termination Date at which two or more Market
Quotations have been communicated to Party B and remain capable of becoming
legally binding upon acceptance by Party B, Party B shall be entitled to accept
only the lowest of such Market Quotations (for the avoidance of doubt, (i)
a
Market Quotation expressed as a negative number is lower than a Market Quotation
expressed as a positive number and (ii) the lower of two Market Quotations
expressed as negative numbers is the one with the largest absolute
value).
4
(iii)
For
the
purpose of sub-paragraph (4) of the definition of Market Quotation, Party B
shall determine in its sole discretion in accordance with the Pooling and
Servicing Agreement, acting in a commercially reasonable manner, whether a
Firm
Offer is made in respect of a Replacement Transaction with commercial terms
substantially the same as those of this Agreement (save for the exclusion of
provisions relating to Transactions that are not Terminated
Transactions).
(iv) If
Party
B requests Party A in writing to obtain Market Quotations, Party A shall use
its
reasonable efforts to do so before the Early Termination Date.
(vi) If
the
Settlement Amount is a negative number, Section 6(e)(i)(3) of this Agreement
shall be deleted in its entirety and replaced with the following:
“Second
Method and Market Quotation.
If
Second Method and Market Quotation apply, (1) Party B shall pay to Party A
an
amount equal to the absolute value of the Settlement Amount in respect of the
Terminated Transactions, (2) Party B shall pay to Party A the Termination
Currency Equivalent of the Unpaid Amounts owing to Party A and (3) Party A
shall
pay to Party B the Termination Currency Equivalent of the Unpaid Amounts owing
to Party B, provided that, (i) the amounts payable under (2) and (3) shall
be
subject to netting in accordance with Section 2(c) of this Agreement and (ii)
notwithstanding any other provision of this Agreement, any amount payable by
Party A under (3) shall not be netted-off against any amount payable by Party
B
under (1).”
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(l)
|
“Termination
Currency”
means United States Dollars.
|
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(m)
|
Timing
of Party B Termination Payment.
If an amount calculated as being due in respect of an Early Termination
Date under Section 6(e) of this Agreement is an amount to be paid
by Party
B to Party A then, notwithstanding the provisions of Section 6(d)(ii)
of
this Agreement, such amount will be payable on the first Distribution
Date
following the date on which the payment would have been payable as
determined in accordance with Section 6(d)(ii); provided
that if the date on which the payment would have been payable as
determined in accordance with Section 6(d)(ii) is a Distribution
Date,
then the payment will be payable on the date determined in accordance
with
Section 6(d)(ii).
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(n)
|
Additional
Termination Event will apply.
Each of the following events shall constitute an Additional Termination
Event hereunder:
|
|
(i)
|
A
Ratings Event or an S&P Required Rating Downgrade occurs as set forth
in Part 5(f)(i) hereof and Party A fails to satisfy the requirements
set
forth in Part 5(f)(i) hereof or Party A fails to satisfy the Xxxxx’x
Downgrade provisions set forth in Part (5)(f)(ii) hereof. Party A
shall be
the sole Affected Party.
|
|
(ii)
|
The
Pooling and Servicing Agreement is amended or modified, without the
prior
written consent of Party A, in any manner which materially adversely
affects Party A, and such consent is required pursuant to the Pooling
and
Servicing Agreement. Party B shall be the sole Affected
Party.
|
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(iii)
|
The
Trust Fund (as defined in the Pooling and Servicing Agreement) is
terminated pursuant to the Pooling and Servicing Agreement or notice
of
the Terminator’s (as defined in the Pooling and Servicing Agreement)
intention to exercise its option to purchase the Mortgage Loans pursuant
to Section 10.01 of the Pooling and Servicing Agreement is given
by the
Securities Administrator to Certificateholders pursuant to Section
10.01
of the Pooling and Servicing Agreement. Party B shall be the sole
Affected
Party.
|
5
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(iv)
|
A
Swap Disclosure Event occurs as set forth in Part 5(g) hereof and
Party A
fails to satisfy the requirements set forth in Part 5(g) hereof.
Party A
shall be the sole Affected Party.
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Part
2
Tax
Representations
|
(a)
|
Payer
Representations. For
the purpose of Section 3(e) of this Agreement, Party A and Par-ty
B make
the following representation:-
|
It
is not
required by any applicable law, as modified by the practice of any relevant
govern-mental revenue authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax from any payment (other
than interest under Section 2(e), 6(d)(ii), or 6(e) of this Agreement) to be
made by it to the other party under this Agreement. In making this
representation, it may rely on (i) the accuracy of any representations made
by
the other party pursuant to Section 3(f) of this Agreement, (ii) the
satisfaction of the agreement con-tained 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 Agree-ment, and
(iii) the satisfaction of the agreement of the other party contained in Section
4(d) of this Agreement, provided
that it
shall not be a breach of this representation where reliance is placed on clause
(ii) and the other party does not deliver a form or document under Section
4(a)(iii) by reason of material prejudice to its legal or commercial
position.
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(b)
|
Payee
Representations.
For the purpose of Section 3(f) of this Agreement, Party A and Party
B
make the following
representations:-
|
|
(i)
|
The
following representation applies to Party A: Party A is a corporation
organized under the laws of the State of
Delaware.
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(ii)
|
The
following representation applies to Party B: Party B is a “U.S. person” as
that term is used in section 1.1441-4(a)(3)(ii) of the United States
Treasury Regulations (the “Regulations”) for United States federal income
tax purposes.
|
6
Part
3
Agreement
to Deliver Documents
For
the
purpose of Section 4(a)(i) and (ii) of this Agreement, each Party agrees to
deliver the following documents as applicable:-
|
(a)
|
Tax
forms, documents or certificates to be delivered
are:-
|
|
Party
Required to deliver
Document
|
Form/Document/Certificate
|
Date
by which to Delivered
|
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Party
A and Party B.
|
An
executed U.S. Internal Revenue Service Form W-9 (or any successor
thereto).
|
(i)
Before the first Payment Date under this Agreement, (ii) promptly
upon
reasonable demand by Party A and (iii) promptly upon learning that
any
such form previously provided to Party A has become obsolete or
incorrect.
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(b)
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Other
documents to be delivered are:
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|
Party
Required to
deliver
Document
|
Form/Document/
Certificate
|
Date
by which to be
Delivered
|
Covered
by Section
3(d)
Representation
|
|
Party
A.
|
Guarantee
from Swiss Reinsurance Company as Credit Support Provider.
|
Concurrently
with the execution of this Agreement.
|
No
|
|
Party
B.
|
Credit
Support Document, if any, specified in Part 4 hereof, such Credit
Support
Document being duly executed if required.
|
Concurrently
with the execution of this Agreement.
|
No.
|
|
Party
A/Party B.
|
Incumbency
certificate or other documents evidencing the authority of the party
entering into this Agreement or any other document executed in connection
with this Agreement.
|
Concurrently
with the execution of this Agreement or of any other documents executed
in
connection with this Agreement.
|
Yes.
|
|
Party
B.
|
Copy
of each report delivered under the Pooling and Servicing Agreement
and/or
any other Transaction Document.
|
Upon
availability.
|
Yes.
|
7
|
Party
Required to
deliver
Document
|
Form/Document/
Certificate
|
Date
by which to be
Delivered
|
Covered
by Section
3(d)
Representation
|
|
Party
A.
|
Legal
opinion from counsel for Party A’s Credit Support Provider concerning due
authorization, enforceability and related matters, addressed to Party
B
and acceptable to Party B.
|
Concurrently
with the execution of this Agreement.
|
No.
|
|
Party A.
|
Certified
copies of all corporate, partnership or membership authorizations,
as the
case may be, and any other documents with respect to the execution,
delivery and performance of this Agreement and any Credit Support
Document
|
Upon
execution and delivery of this Agreement
|
Yes
|
Part
4
Miscellaneous
|
(a)
|
Addresses
for Notices: For the purpose of Section 12(a) of this
Agreement:-
|
Address
for notices or communications to Party
A:-
Swiss
Re
Financial Products Corporation
00
Xxxx
00xx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
|
Attention:
|
Head
of Legal
|
|
Facsimile.
|
(000)
000-0000
|
CC:
|
Attention:
|
Head
of Legal
|
|
Facsimile:
|
(000)
000-0000
|
(For
all
purposes).
Address
for notices or communications to Party
B:-
Xxxxx
Fargo Bank, N.A., not individually but solely as securities administrator on
behalf of Xxxxxxxxxx Mortgage Loan Trust, Series 2007-HE1 with respect to the
Xxxxxxxxxx Mortgage Loan Trust, Series 2007-HE1 Asset-Backed Pass-Through
Certificates
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
|
Attention:
|
Client
Manager Xxxxxxxxxx Mortgage Loan Trust, 2007
HE1
|
|
Telephone:
|
(000)
000 0000
|
|
Facsimile:
|
(000)
000 0000
|
8
(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.
|
(c)
|
Offices.
The provisions of Section 10(a) will apply to this
Agreement.
|
|
(d)
|
Multibranch
Party.
For the purpose of Section 10(c) of this
Agreement:-
|
Party
A
is not a Multibranch Party.
Party
B
is not a Multibranch Party.
|
(e)
|
Calculation
Agent.
The Calculation Agent is Party A; provided,
however,
if an Event of Default has occurred with respect to Party A, a Reference
Market-maker, as designated by Party B, shall be the Calculation
Agent.
|
|
(f)
|
Credit
Support Document.
Details of any Credit Support
Document:-
|
Each
of
the following, as amended, extended, supplemented or otherwise modified in
writing from time to time, is a “Credit Support Document”:
Party
A:
A Guaranty of Swiss Reinsurance Company dated as of the date hereof, in a form
acceptable to Party B and the ISDA Credit Support Annex, annexed
hereto.
Party
B:
The ISDA Credit Support Annex to the extent of Party B’s Return Amount
obligations.
|
(g)
|
Credit
Support Provider.
|
Credit
Support Provider means in relation to Party A, Swiss Reinsurance
Company.
Credit
Support Provider means in relation to Party B, Not Applicable.
|
(h)
|
|
(i)
|
Netting
of Payments.
Subparagraph (ii) of Section 2(c) of this Agreement will
apply.
|
|
(j)
|
“Affiliate”
will have the meaning specified in Section 14 of the Form Master
Agreement; provided, however, that Party B shall be deemed not to
have any
Affiliates for purposes of this
Transaction.
|
Part
5
Other
Provisions
9
|
(a)
|
Additional
Representations.
For purposes of Section 3, the following shall be added, immediately
following paragraph (f) thereto:
|
|
(g)
|
It
is an “eligible
contract participant”
within the meaning of Section 1(a)(12) of the Commodity Exchange
Act, as
amended.
|
|
(h)
|
It
has entered into this Agreement (including each Transaction evidenced
hereby) in conjunction with its line of business (including financial
intermediation services) or the financing of its
business.
|
|
(i)
|
Non-Reliance.
Each party has made its own independent decisions to enter into this
Transaction and as to whether this Transaction is appropriate or
proper
for it based upon its own judgment and upon advice from such advisors
as
it has deemed necessary. It is not relying on any communication (written
or oral) of the other party as investment advice or as a recommendation
to
enter into 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. Further, such party has not received from the other
party any
assurance or guarantee as to the expected results of this
Transaction.
|
|
(j)
|
Evaluation
and Understanding.
It is capable of evaluating and understanding (on its own behalf
or
through independent professional advice), and understands and accepts,
the
terms, conditions and risks of this Transaction. It is also capable
of
assuming, and assumes, the financial and other risks of this
Transaction.
|
|
(k)
|
Status
of Parties.
The other party is not acting as an agent, fiduciary or advisor for
it in
respect of this Transaction.
|
|
(l)
|
Pari
Passu: Party
A represents that its obligations under this Agreement rank pari
passu
with all of its other unsecured, unsubordinated obligations except
those
obligations preferred by operation of
law.
|
|
(b)
|
Notice
by Facsimile Transmission. Section
12(a) of the Agreement is hereby amended by deleting the parenthetical
“(except that a notice or other communication under Section 5 or 6
may not
be given by facsimile transmission or electronic messaging
system).”
|
|
(c)
|
No
Set-off.
Without affecting the provisions of the Agreement requiring the
calculation of certain net payment amounts, as a result of an Event
of
Default or Additional Termination Event or otherwise, all payments
will be
made without setoff or counterclaim. The provisions for Set-off set
forth
in Section 6(e) of the Agreement shall not apply for purposes of
this
Agreement.
|
|
(d)
|
Consent
to Recording.
The parties agree that each may electronically record all telephonic
conversations between marketing and trading personnel in connection
with
this Agreement and that any such recordings may be submitted in evidence
in any Proceedings relating to the
Agreement.
|
|
(e)
|
Waiver
of Jury Trial.
EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY
WITH RESPECT TO ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS
AGREEMENT, ANY CREDIT SUPPORT DOCUMENT OR ANY TRANSACTION CONTEMPLATED
HEREUNDER.
|
10
|
(f)
|
Downgrade
of Party A.
|
(i) For
the
purpose hereof, a “Ratings Event” shall occur in that event that (1) Party A's
(or its Credit Support Provider’s) short-term unsecured and unsubordinated debt
rating is reduced below “A-1” by Standard & Poor's Ratings Service
(“S&P”) (or if its short-term rating is not available by S&P, in the
event that its long-term unsecured and unsubordinated debt rating is reduced
below “A+” by S&P) and with respect to Party A (or its Credit Support
Provider) such entity is a Financial Institution (an “S&P Approved Ratings
Downgrade”) or (2) its short-term unsecured and unsubordinated debt rating is
reduced below “F1” by Fitch, Inc. (“Fitch”) (or, if its short-term rating is not
available by Fitch), its long-term unsecured and unsubordinated debt rating
is
withdrawn or reduced below “A” by Fitch (collectively, the “Approved Rating
Threshold”), to the extent such obligations are rated by S&P or Fitch. Party
A agrees that it shall comply with the provisions set forth below following
the
occurrence of a Ratings Event or an S&P Required Rating Downgrade. The
failure by Party A to comply with the provisions set forth below shall
constitute an Additional Termination Event for which Party A shall be the sole
Affected Party.
If
a
Ratings Event shall occur and be continuing with respect to Party A, then Party
A shall (at its own cost) (A) within 5 Business Days of such Ratings Event,
give
notice to Party B of the occurrence of such Ratings Event, and (B) (x) within
30
calendar days after the occurrence of a Ratings Event,
with
respect to Fitch or, (y) within 10 Business Days with respect to Party A (or
its
Credit Support Provider) that is a Financial Institution with respect to
S&P, either (i) use reasonable efforts to transfer Party A’s rights and
obligations hereunder to another party, subject to satisfaction of the Rating
Agency Condition (as defined below), (ii) post Eligible Collateral in accordance
with the Credit Support Annex attached hereto and made a part hereof or (iii)
obtain a guaranty which satisfies the Rating Agency Condition.
If
an
S&P Required Rating Downgrade (as defined below) shall occur and be
continuing with respect to Party A, then Party A shall within 2 Business Days
of
such S&P Required Rating Downgrade, (A) give notice to Party B of the
occurrence of such S&P Required Rating Downgrade, and (B) within 10 Business
Days of the occurrence of such S&P Required Rating Downgrade comply with the
terms of the Credit Support Annex and (C) within 60 days of the date of the
S&P Required Ratings Downgrade, in addition to posting collateral pursuant
to the Credit Support Annex (i) transfer (at its own cost) Party A’s rights and
obligations hereunder to another party, subject to satisfaction of the Rating
Agency Condition or (ii) obtain a guaranty of its obligations hereunder from
another party, subject to the satisfaction of the Rating Agency Condition,
and
such guaranty shall remain in effect only for so long as a S&P Required
Rating Downgrade is continuing with respect to Party A. For the purpose hereof,
a “S&P Required Rating Downgrade” shall occur with respect to Party A (or
its Credit Support Provider) (x) if such entity is a Financial Institution,
its
the short-term senior unsecured deposit rating is withdrawn by S&P or cease
to be at least “A-2” (or if its short-term rating is not available by S&P,
in the event that its long-term unsecured and unsubordinated debt rating is
cease to be at least “BBB+” by S&P) or (y) with respect to Party A (or its
Credit Support Provider) if such entity is not a Financial Institution, at
any
time its short-term senior unsecured deposit rating is withdrawn or reduced
below “A-1” (or if its short-term rating is not available by S&P, in the
event that its long-term unsecured and unsubordinated debt rating is cease
to be
at least “A+” by S&P).
11
“Financial
Institution” means a bank, broker/dealer, insurance company, structured
investment vehicle or derivative product company.
“Rating
Agency Condition” means, with respect to any action to be taken, a condition
that is satisfied when S&P, Xxxxx’x and Fitch have confirmed that such
action would not result in the downgrade, qualification (if applicable) or
withdrawal of the rating then assigned by such Rating Agency to the applicable
class of Certificates.
(ii) Xxxxx’x
Downgrade Provisions.
(A) Xxxxx’x
First Rating Trigger Collateral.
For
purposes of this Part 5(f)(ii), if 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 entered into between Party A and Party B in relation
to
this Agreement (the “CSA obligation”), then, unless less than 30 Local Business
Days have elapsed since the last date on which the Xxxxx’x First Trigger
Required Ratings of Party A were satisfied, such failure by Party A to comply
with one or more CSA obligations shall constitute an Additional Termination
Event, and Party A shall be the sole Affected Party.
(B) Xxxxx’x
Second Rating Trigger Replacement.
It
shall be an Additional termination Event with Party A as sole Affected Party
if
on a given date (x) the Xxxxx’x Second Rating Trigger Requirements of Party A
are not satisfied and 30 or more Local Business Days have elapsed since the
last
date on which the Xxxxx’x Second Rating Trigger Requirements of Party A were
satisfied and (y) (i) at least one Eligible Replacement has made a Firm Offer
(which remains capable of becoming legally binding upon acceptance) to be the
transferee of a transfer to be made in accordance with Part 5(m)(ii) below
and/or (ii) at least one entity whose ratings satisfy the Xxxxx’x First Trigger
Required Ratings and/or the Xxxxx’x Second Trigger Required Ratings has made a
Firm Offer (which remains capable of becoming legally binding upon acceptance
by
the offeree and satisfaction of the Rating Agency Condition) to provide an
Eligible Guarantee in respect of all of Party A’s present and future obligations
under this Agreement.
“Eligible Guarantee”
means
an unconditional and irrevocable guarantee that is provided by a guarantor
as
principal debtor rather than surety and is directly enforceable by Party B,
where either (A) a law firm has given a legal opinion confirming that none
of
the guarantor’s payments to Party B under such guarantee will be subject to
withholding for Tax or (B) such guarantee provides that, in the event that
any
of such guarantor’s payments to Party B are subject to withholding for tax, such
guarantor is required to pay such additional amount as is necessary to ensure
that the net amount actually received by Party B (free and clear of any
withholding tax) will equal the full amount Party B would have received had
no
such withholding been required.
“Eligible
Replacement”
means
an entity (A) with the Xxxxx’x First Trigger Required Ratings or (B) whose
present and future obligations owing to Party B are guaranteed pursuant to
an
Eligible Guarantee provided by a guarantor with the Xxxxx’x First Trigger
Required Ratings.
12
“Firm
Offer”
means
an offer which, when made, was capable of becoming legally binding upon
acceptance.
“Xxxxx’x
Short-term Rating”
means
a
rating assigned by Xxxxx’x under its short-term rating scale in respect of an
entity’s
short-term, unsecured and unsubordinated debt obligations
“Relevant
Entities”
means
Party A and any guarantor under an Eligible Guarantee in respect of all of
Party
A’s present and future obligations under this Agreement.
An
entity
shall satisfy the “Xxxxx’x
First Trigger Required
Ratings”
either
(x) if such entity is the subject of a Xxxxx’x Short-term Rating, if such rating
is “Prime-1”
and its long-term, unsecured and unsubordinated debt or counterparty obligations
are rated “A2” or above by Xxxxx’x or (y) if such entity is not the subject of a
Xxxxx’x Short-term Rating, its long-term, unsecured and unsubordinated debt or
counterparty obligations are rated “A1” or above by Xxxxx’x.
The
“Xxxxx’x
Second
Rating Trigger Requirements”
shall
be satisfied if a Relevant Entity has the Xxxxx’x Second Trigger Required
Ratings.
An
entity
shall satisfy the “Xxxxx’x Second
Trigger Required Ratings”
either
(x), if such entity is the subject of a Xxxxx’x Short-term Rating, if such
rating is “Prime-2”
or above and its long-term, unsecured and unsubordinated debt obligations are
rated “A3” or above by Xxxxx’x or (y), if such entity is not the subject of a
Xxxxx’x Short-term Rating, its long-term, unsecured and unsubordinated debt
obligations are rated “A3” or above by Xxxxx’x.
So
long as the Xxxxx’x
Second
Rating Trigger Requirements are not satisfied,
Party A
will within 30 days and at its own cost use commercially reasonable efforts
to,
as soon as reasonably practicable, procure either
(x) an Eligible Guarantee
in
respect of all of Party A’s present and future obligations under this Agreement
to be provided by a guarantor with the Xxxxx’x First Trigger Required Ratings
or
(y) a transfer in accordance with Part 5(q)(ii) below.
|
(g)
|
Swap
Disclosure Event.
Upon the occurrence of a Swap Disclosure Event (as defined below),
if
Party A has not, within 10 days after such Swap Disclosure Event
(the
“Response Period”) complied with one of the solutions listed below, then
an Additional Termination Event shall have occurred with respect
to Party
A and Party A shall be the sole Affected Party with respect to such
Additional Termination Event.
|
It
shall
be a swap disclosure event (“Swap Disclosure Event”) if at any time after the
date hereof Xxxxxxxxxx Securities, LP (“Xxxxxxxxxx Securities”) or Stanwich
Asset Acceptance Corporation (“Stanwich”) notifies Party A that in the
reasonable discretion of Xxxxxxxxxx Securities or Stanwich acting in good faith,
the “aggregate significance percentage” of all derivative instruments (as such
term is defined in Item 1115 of Regulation AB (as defined below)) provided
by
Party A and any of its affiliates to Xxxxxxxxxx Mortgage Loan Trust, Series
2007-HE1 (the “Significance Percentage”) is 10% or more.
13
Following
a Swap Disclosure Event, Party A’s Credit Support Provider shall take one of the
following actions at its own expense: either (I) (a) (i) if the Significance
Percentage is 10% or more, Party A’s Credit Support Provider shall provide in an
XXXXX compatible format the information set forth in Item 1115(b)(1) of
Regulation AB (or the alternative information described in Instructions 2,
3 and
5 to Item 1114 of Regulation AB or otherwise approved by the SEC in writing)
for
Party A (or for its Credit Support Provider, if applicable) or (ii) if the
Significance Percentage is 20% or more, Party A provide in an XXXXX compatible
format the information set forth in Item 1115(b)(2) of Regulation AB (or the
alternative information described in Instructions 2, 3 and 5 to Item 1114 of
Regulation AB or otherwise approved by the SEC in writing) for Party A (or
for
its Credit Support Provider, if applicable) (collectively, the “Reg AB
Information”), to Xxxxxxxxxx Securities or Stanwich and (b) provide written
consent to Xxxxxxxxxx Securities and Stanwich to incorporation by reference
of
such current Reg AB Information as is filed with the Securities and Exchange
Commission in the reports of Stanwich filed pursuant to the Exchange Act, and
(c) if applicable, cause its outside accounting firm to provide its consent
to
filing or incorporation by reference of such accounting firm’s report relating
to their audits of such current Reg AB Information in the Exchange Act Reports
of Stanwich, and (d) provide to Xxxxxxxxxx Securities and Stanwich any updated
Reg AB Information with respect to Party A or any entity that consolidates
Party
A within five days of the release of any such updated Reg AB Information; (II)
cause a Reg AB Approved Entity (as defined below) to replace Party A as party
to
this Agreement on terms substantially similar to this Agreement prior to the
expiration of the Response Period and cause such Reg AB Approved Entity to
provide the Reg AB Information prior to the expiration of the Response Period;
or (III) post collateral in an amount sufficient to reduce the Significance
Percentage (1) to 8% if the Depositor has notified Party A that the Significance
Percentage is 9% or more (but less than 19% or (2) to 18% if the Depositor
has
notified Party A that the Significance Percentage is 19% or more; provided
however, that no such transfer to a Reg AB Approved Entity pursuant to (II)
above shall occur unless the Reg AB Approved entity agrees to terms
substantially identical to those contained in Part 5(n) of this Agreement.
“Reg
AB Approved Entity” means any entity that (i) has the ability to provide the Reg
AB Information and (ii) meets or exceeds the Approved Rating Threshold and
satisfies the Ratings Agency Condition.
“Regulation
AB” means Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Securities
and Exchange Commission (“SEC”) in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631 (Jan.
7, 2005)) or by the staff of the SEC, or as may be provided by the SEC or its
staff from time to time.
|
(h)
|
Non-Petition.
Party A hereby agrees that it will not, prior to the date that is
one year
and one day (or, if longer, the applicable preference period) after
all
Certificates (as such term is defined in the Pooling and Servicing
Agreement) issued by Party B pursuant to the Pooling and Servicing
Agreement have been paid in full, acquiesce, petition or otherwise
invoke
or cause Party B to invoke the process of any court or governmental
authority for the purpose of commencing or sustaining a case against
Party
B under any federal or state bankruptcy, insolvency or similar law
or for
the purpose of appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official for Party B or
any
substantial part of the property of Party B, or for the purpose of
ordering the winding up or liquidation of the affairs of Party B.
Nothing
herein shall prevent Party A from participating in any such proceeding
once commenced. The provisions of this paragraph shall survive the
termination of this Agreement.
|
14
|
(i)
|
Securities
Administrator Liability Limitation.
It is expressly understood and agreed by the parties hereto that
(i) this
Schedule is executed and delivered by Xxxxx Fargo Bank, N.A. (“Xxxxx
Fargo”), not individually or personally but solely as securities
administrator, (ii) each of the representations, undertakings and
agreements herein made on the part of Party B is made and intended
not as
personal representations, undertakings and agreements by Xxxxx Fargo
but
is made and intended for the purpose of binding only Party B, (iii)
nothing herein contained shall be construed as creating any liability
on
Xxxxx Fargo, individually or personally, to perform any covenant
either
expressed or implied contained herein, and (iv) under no circumstances
shall Xxxxx Fargo be personally liable for the payment of any indebtedness
or expenses of Party B or be liable for the breach or failure of
any
obligation, representation, warranty or covenant made or undertaken
by
Party B hereunder or any other related documents. Any resignation
or
removal of Xxxxx Fargo as securities administrator under the Pooling
and
Servicing Agreement shall require the assignment of this confirmation
to
Xxxxx Fargo’s replacement.
|
|
(j)
|
Severability.
If
any term, provision, covenant, or condition of this Agreement, or
the
application thereof to any party or circumstance, shall be held to
be
invalid or unenforceable (in whole or in part) for any reason, the
remaining terms, provisions, covenants, and conditions hereof shall
continue in full force and effect as if this Agreement had been executed
with the invalid or unenforceable portion eliminated, so long as
this
Agreement as so modified continues to express, without material change,
the original intentions of the parties as to the subject matter of
this
Agreement and the deletion of such portion of this Agreement will
not
substantially impair the respective benefits or expectations of the
parties.
|
The
parties shall endeavor to engage in good faith negotiations to replace any
invalid or unenforceable term, provision, covenant or condition with a valid
or
enforceable term, provision, covenant or condition, the economic effect of
which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
|
(k)
|
The
obligations of Party B under this Agreement are limited recourse
obligations of Party B, payable solely from the Trust Fund (as such
term
is defined in the Pooling and Servicing Agreement), subject to and
in
accordance with the terms of the Pooling and Servicing Agreement,
and,
following exhaustion of the Trust Fund, any claims of Party A against
Party B shall be extinguished. It is understood that the foregoing
provisions shall not (i) prevent recourse to the Trust Fund for the
sums
due or to become due under any security, instrument or agreement
which is
part of the Trust Fund (subject to the priority of payments set forth
in
the Pooling and Servicing Agreement) or (ii) constitute a waiver,
release
or discharge of any obligation of Party B arising under this Agreement
until the Trust Fee have been realized and the proceeds applied in
accordance with the Pooling and Servicing Agreement, whereupon any
outstanding obligation of Party B under this Agreement shall be
extinguished. Notwithstanding the foregoing (or anything to the contrary
in this Agreement), Party B shall be liable for its own fraud, negligence,
willful misconduct and/or bad
faith.
|
|
(l)
|
Delivery
of Confirmations. For
each Transaction entered into hereunder, Party A shall promptly send
to Party B a Confirmation (which may be via facsimile transmission).
Party B agrees to respond to such Confirmation within two General
Business Days, either confirming agreement thereto or requesting
a
correction of any error(s) contained therein. Failure by Party A to
send a Confirmation or of Party B to respond within such period shall
not affect the validity or enforceability of such Transaction. Absent
manifest error, there shall be a presumption that the terms contained
in
such Confirmation are the terms of the
Transaction.
|
15
|
(m)
|
Section
5(a)(i) is hereby amended as
follows:
|
The
word
“third” shall be replaced by the word “first” in the third line of Section
5(a)(i) of the Agreement.
|
(n)
|
Compliance
with Regulation AB.
|
Party
A
agrees and acknowledges that Xxxxxxxxxx Securities and Stanwich may be required
under Regulation AB, to disclose certain financial information regarding Party
A’s Credit Support Provider or depending on the applicable “significance
percentage” of this Agreement, as calculated from time to time in accordance
with Item 1115 of Regulation AB.
Party
A, or a Reg AB Approved Entity after a Swap Disclosure Event pursuant to Part
5(g), as applicable, shall indemnify and hold harmless Xxxxxxxxxx Securities,
Stanwich, their respective directors or officers and any person controlling
Xxxxxxxxxx Securities or Stanwich, from and against any and all losses, claims,
damages and liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in the Reg AB Information that Party
A,
Party A’s Credit Support Provider or such Reg AB Approved Entity, as applicable,
provides to Xxxxxxxxxx Securities or Stanwich pursuant to Part 5(g) (the “Party
A Information”) or caused by any omission or alleged omission to state in the
Party A Information by Party A, Party A’s Credit Support Provider or the Reg AB
Approved Entity, as applicable, a material fact required to be stated therein
or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. For the avoidance of doubt, Party A shall
provide the indemnity described above with respect to any Party A Information
it
is required to provide pursuant to Part 5(g) and any Reg AB Approved Entity
which has replaced Party A pursuant to Part 5(g) shall provide the indemnity
described above with respect to any Party A Information it is required to
provide pursuant to Part 5(g).
|
(o)
|
Limited
Transaction.
Party A and Party B each agree and acknowledge that the only Transaction
that is or will be governed by this Agreement is the Transaction
evidenced
by the Confirmation dated as of the date hereof (it being understood
that,
in the event any such Confirmation shall be amended (in any respect),
such
amendment shall not constitute (for purposes of this paragraph) a
separate
Transaction or a separate
Confirmation).
|
|
(p)
|
Transfer,
Amendment and Assignment.
No
transfer, amendment, waiver, supplement, assignment or other modification
of this Transaction shall be permitted by either party unless Xxxxx’x,
S&P, and Fitch have been provided prior notice of the same and
confirms in writing (including by facsimile transmission) that it
will not
downgrade, withdraw or otherwise modify its then-current ratings
of any
Certificates.
|
|
(q)
|
Transfers.
|
|
(i)
|
Section
7 of this Agreement shall not apply to Party A and, subject to Section
6(b)(ii) and Part 5(q)(ii) below, Party A may not transfer (whether
by way
of security or otherwise) any interest or obligation in or under
this
Agreement without the prior written consent of Party
B.
|
|
(ii)
|
Subject
to Part 5(s) below, Party A may (at its own cost) transfer all or
substantially all of its rights and obligations with respect to this
Agreement to any other entity (a “Transferee”)
that is an Eligible Replacement, provided that Party B shall determine
in
its sole discretion, acting in a commercially reasonable manner,
whether
or not a transfer relates to all or substantially all of Party A’s rights
and obligations under this Agreement. Following such transfer, all
references to Party A shall be deemed to be references to the
Transferee.
|
16
|
(iii)
|
If
an entity has made a Firm Offer (which remains capable of becoming
legally
binding upon acceptance) to be the transferee of a transfer to be
made in
accordance with (ii) above, Party B shall (at Party A’s cost) at Party A’s
written request, take any reasonable steps required to be taken by
it to
effect such transfer.
|
|
(r)
|
Tax.
|
Notwithstanding
the
definition
of
“Indemnifiable Tax” in Section 14 of this Agreement, in relation to payments by
Party A, any Tax shall be an Indemnifiable Tax and, in relation to payments
by
Party B, no Tax shall be an Indemnifiable Tax.
|
(s)
|
Rating
Agency Notifications.
|
Notwithstanding
any other provision of this Agreement, this Agreement shall not be amended,
no
Early Termination Date shall be effectively designated by Party B, and no
transfer of any rights or obligations under this Agreement shall be made (other
than a transfer of all of Party A’s rights and obligations with respect to this
Agreement in accordance with Part 5(q)(ii) above) unless Xxxxx’x has been given
prior written notice of such amendment, designation or transfer.
[remainder
of page intentionally left blank]
17
IN
WITNESS WHEREOF,
the
parties have executed this Schedule by their duly authorized officers as of
the
date hereof.
|
SWISS
RE FINANCIAL PRODUCTS
CORPORATION
|
XXXXX
FARGO BANK, N.A., not individually but solely as securities administrator
on behalf of the Xxxxxxxxxx Mortgage Loan Trust, Series 2007-HE1
with
respect to the Xxxxxxxxxx Mortgage Loan Trust, Series 2007-HE1
Asset-Backed Pass-Through Certificates
|
|
By: /s/Xxxxxx
Xxxxxx
|
By:
/s/Xxxxxx
X.
Xxxxxx
|
|
Name:
Xxxxxx Xxxxxx
|
Name:
Xxxxxx X. Xxxxxx
|
|
Title:
Director
|
Title:
Assistant Vice President
|
18
