ISDAâ International Swaps and Derivatives Association, Inc. MASTER AGREEMENT dated as of October 2, 2007
(Multicurrency
- Cross Border)
ISDAâ
International
Swaps
and
Derivatives
Association, Inc.
MASTER
AGREEMENT
dated
as
of Xxxxxxx
0, 0000
XXXXX
RE FINANCIAL PRODUCTS CORPORATION
(“Party
A”)
|
and
|
XXXXX
FARGO BANK, N.A., solely in its capacity as Securities Administrator
on
behalf of the Trust with respect to HarborView Mortgage Loan Trust
Mortgage Loan Pass-Through Certificates, Series
2007-7
(“Party
B”)
|
have
entered and/or anticipate entering into one or more transactions
(each a “Transaction”) that are or will be governed
by this Master Agreement, which includes the schedule (the
“Schedule”), and the documents and other confirming evidence (each a
“Confirmation”) exchanged between the parties confirming those
Transactions.
Accordingly,
the parties agree as follows:
1.
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Interpretation
|
(a)Definitions.
The
terms
defined in Section 14 and in the Schedule will have the meanings therein
specified for
the
purpose of this Master Agreement.
(b)Inconsistency.
In
the
event of any inconsistency between the provisions of the Schedule and the other
provisions of this Master Agreement, the Schedule will prevail. In the event
of
any inconsistency between the provisions of any Confirmation and this Master
Agreement (including the Schedule), such Confirmation will prevail for the
purpose of the relevant Transaction.
(c)Single
Agreement.
All
Transactions are entered into in reliance on the fact that this Master Agreement
and
all
Confirmations form a single agreement between the parties (collectively referred
to as this “Agreement”), and the parties would not otherwise enter into any
Transactions.
2.
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Obligations
|
(a) General
Conditions.
(i) Each
party will make each payment or delivery specified
in each Confirmation to be made by it, subject
to the other provisions of this Agreement.
(ii) Payments
under this Agreement will be made on the due date for value on that date in
the
place of the account specified in the relevant Confirmation or otherwise
pursuant to this Agreement, in
freely
transferable
funds and in the manner customary for payments in the required
currency. Where settlement is by
delivery (that is, other than by payment), such delivery will be made for
receipt on the due date in the manner
customary for the relevant obligation unless otherwise specified
in the relevant Confirmation or elsewhere
in this Agreement.
(b) Change
of Account. Either
party may change its account for receiving a payment or delivery by
giving notice to the other party at least five Local Business Days
prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a reasonable objection
to such change.
(c) Netting.
If
on any
date amounts would otherwise be payable:—
(i) in
the
same currency; and
(ii) in
respect of the same Transaction,
by
each
party to the other, then, on such date, each party's obligation to make payment
of any such amount will be automatically satisfied and
discharged and, if the aggregate amount that would otherwise have been
payable
by one party exceeds the aggregate amount that would otherwise have been
payable by the other party, replaced by an obligation upon
the party by whom the larger aggregate amount would have been
payable to pay
to the other party the excess of the larger aggregate amount over the smaller
aggregate amount.
The
parties may elect in respect of two or more Transactions that a net amount
will
be determined in respect of all amounts
payable on the same date in the same currency in respect of such
Transactions, regardless of
whether such amounts are payable in respect of the same Transaction.
The election may be made in the Schedule or a Confirmation
by specifying that subparagraph (ii) above will not apply to
the Transactions identified as being subject to the election, together
with the starting date (in which case subparagraph (ii)
above will not, or will cease to, apply to such Transactions from such
date). This election may be made separately for different
groups of Transactions and will apply separately to each pairing of
Offices through which the parties make and receive payments or
deliveries.
(d) Deduction
or Withholding for Tax.
(i) Gross-Up.
All
payments under this Agreement will be made without any deduction or
withholding for or on account of any Tax unless such deduction or
withholding is required by any applicable law, as modified by the
practice of any relevant governmental revenue
authority, then in
effect. If a party is so required to deduct or withhold, then that party (“X”)
will:—
(1) promptly
notify the other party (“Y”) of such requirement;
(2) pay
to
the relevant authorities the full amount required to be
deducted or withheld (including the full amount required to
be deducted or withheld from any additional amount paid by X to Y
under this Section 2(d)) promptly upon the earlier of
determining that such deduction or withholding is required
or receiving notice that such amount has been assessed against
Y;
(3) promptly
forward to Y an official receipt (or a certified copy), or
other documentation reasonably acceptable to Y, evidencing such
payment to such authorities; and
(4) if
such
Tax is an Indemnifiable Tax, pay to Y, in addition to the payment
to which Y is otherwise entitled under this Agreement,
such additional amount as is necessary
to ensure that the net amount
actually received by Y (free and clear of Indemnifiable Taxes,
whether assessed
against X or Y) will equal the full amount Y would have received had
no such deduction or withholding been required. However, X will
not be required to pay any additional amount to Y to the
extent that it would not be required to be paid but for:—
(A) the
failure by Y to comply with or perform any agreement contained in
Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the
failure of a representation made by Y pursuant to Section 3(f) to
be accurate and true unless such failure would not have
occurred but for (I) any action taken by a taxing
authority, or brought in a court of competent jurisdiction, on or after the
date on which a Transaction is entered into (regardless of
whether such action is taken or brought with respect to a party
to this Agreement) or (II) a Change in Tax Law.
2
(ii) Liability.
If:—
(1) X
is
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, to make any deduction
or withholding in respect of which X
would not be required to pay an additional amount to Y under Section
2(d)(i)(4);
(2) X
does
not so deduct or withhold; and
(3) a
liability resulting from such Tax is assessed directly against X,
then,
except to the extent Y has satisfied or then satisfies the liability resulting
from such Tax, Y will promptly pay to X the amount of such
liability (including any related liability for interest, but
including any related liability for penalties only if Y has failed to
comply with or perform any agreement contained in Section
4(a)(i), 4(a)(iii) or 4(d)).
(e) Default
Interest; Other Amounts. Prior
to
the occurrence or effective designation of an Early
Termination Date in respect of the relevant Transaction, a party that
defaults in the performance of any payment obligation
will, to the extent permitted by law and subject to
Section 6(c), be required to pay interest
(before as well
as after judgment) on the overdue amount to the other party on demand in the
same currency
as such overdue amount, for the period from (and including) the
original due date for payment to (but excluding) the date of
actual payment, at the Default Rate. Such interest will be calculated on
the basis of daily compounding
and the actual number of days elapsed. If, prior to the occurrence or
effective designation
of an Early Termination Date in respect of the relevant
Transaction, a party defaults in the performance of any obligation
required to be settled by delivery, it will compensate
the other party on demand
if
and to the extent provided for in the relevant Confirmation or
elsewhere in this Agreement.
3. Representations
Each
party represents to the other party (which representations will be
deemed
to be repeated
by each party on each date on which a Transaction is entered
into and, in the
case
of the representations
in
Section 3(f), at all times until the termination of this
Agreement) that:—
(a) Basic
Representations.
(i) Status.
It
is
duly organised and validly existing under the laws of the
jurisdiction of its organisation or incorporation and, if
relevant under such laws, in good standing;
(ii) Powers.
It
has
the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party,
to
deliver this Agreement and any other
documentation relating to this Agreement that it is required by
this Agreement to deliver and to perform its obligations under this
Agreement and any obligations it has under any Credit Support Document to
which it is a party and has taken all necessary action to
authorise such execution, delivery and performance;
(iii) No
Violation or Conflict.
Such
execution, delivery and
performance do not
violate or conflict with any law applicable to it, any
provision of its constitutional documents, any order or judgment
of any court or other agency of government applicable to it or any of
its assets or any contractual restriction binding on or affecting
it or any of its assets;
(iv) Consents.
All
governmental and other consents that are required to have been
obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party have been obtained and
are in full force and effect and all conditions of any such consents
have been complied with; and
(v) Obligations
Binding. Its
obligations under
this Agreement and any
Credit Support Document to which it is a party constitute
its legal, valid and binding obligations, enforceable in accordance
with their respective terms (subject to applicable
bankruptcy, reorganisation, insolvency,
moratorium or similar laws affecting creditors' rights generally and
subject, as to enforceability, to equitable principles of general
application (regardless of whether enforcement is sought in a
proceeding in equity or at law)).
3
(b) Absence
of Certain Events. No
Event
of Default or Potential Event of Default or, to its knowledge,
Termination Event
with respect to it has occurred
and is
continuing and
no
such event
or
circumstance would occur as a
result of its entering into or performing its
obligations under this Agreement
or any
Credit Support Document to which it is a party.
(c) Absence
of Litigation.
There
is
not pending or, to its knowledge, threatened against it or any of its
Affiliates any action, suit or proceeding
at law or in equity or before any court,
tribunal, governmental body, agency or official or any arbitrator
that is likely to affect the legality, validity or enforceability
against it of this Agreement or
any Credit Support Document
to which
it is a party or its ability to perform its obligations
under this Agreement or such Credit Support Document.
(d) Accuracy
of Specified Information. All
applicable information
that
is
furnished in writing by or on behalf of it to the other
party and is identified for the purpose of this Section 3(d) in the
Schedule is, as of the date of the information, true,
accurate and complete in every material respect.
(e) Payer
Tax Representation. Each
representation specified in the Schedule as being made by it for
the purpose of this Section 3(e) is accurate and true.
(f) Payee
Tax Representations. Each
representation specified in the Schedule as being made by it for
the purpose of this Section 3(f) is accurate and true.
4. Agreements
Each
party agrees with the other that, so long as either party has or may have any
obligation under this Agreement or under any Credit Support
Document to which it is a party:—
(a) Furnish
Specified Information. It
will
deliver to the other party or, in certain cases under
subparagraph (iii) below, to such government or taxing authority as
the other party reasonably directs:—
(i) any
forms, documents or certificates relating to taxation specified in the
Schedule or any Confirmation;
(ii) any
other
documents specified in the Schedule or any Confirmation; and
(iii) upon
reasonable demand by such other party, any form or document that may
be required or reasonably requested in writing in order to allow
such other party or its Credit Support Provider to
make a payment under this Agreement or any applicable Credit Support
Document without any deduction or withholding for or on account
of any Tax or with such deduction or withholding at a
reduced rate (so long as the completion, execution or submission of such
form or document would not materially prejudice the legal or
commercial position of the party in receipt of such demand),
with any such form or document to be accurate and completed in a
manner reasonably satisfactory to such other party and to be
executed
and to be delivered with any
reasonably required certification,
in
each
case by the date specified in the Schedule or such Confirmation or, if none
is
specified, as soon as reasonably practicable.
(b) Maintain
Authorisations. It will
use
all reasonable efforts to maintain in full force and effect all
consents of any governmental or other authority that are required to
be obtained by it with respect to this Agreement or any
Credit Support Document to which
it
is a party and will use
all
reasonable efforts to obtain any that may become necessary
in the future.
(c) Comply
with Laws. It
will
comply in all material respects with all applicable laws and orders to
which it may
be subject if failure
so to
comply would materially impair its ability to perform its obligations
under this Agreement or any Credit Support Document to which it is a
party.
(d) Tax
Agreement. It
will
give notice of any failure of a representation made by it
under Section 3(f) to be accurate and true promptly upon
learning of such failure.
(e) Payment
of Stamp Tax. Subject
to Section 11, it will pay any Stamp Tax levied or imposed upon
it or in respect
of its execution or performance
of this
Agreement by
a jurisdiction in which it is incorporated,
4
organised,
managed and controlled, or considered to have its seat, or in which a branch
or office through which it is
acting
for the purpose of this Agreement is located
(“Stamp
Tax Jurisdiction”) and will indemnify the other party
against any Stamp Tax levied or imposed upon
the
other party or in respect of the other party's execution or performance
of this Agreement by any such
Stamp
Tax Jurisdiction which is not also a Stamp Tax Jurisdiction
with respect to the other party.
5. Events
of Default and Termination Events
(a) Events
of Default. The
occurrence at any time with respect to a party or, if
applicable, any Credit Support Provider of
such party or any Specified
Entity
of such party of any of the following events constitutes
an event of default (an “Event of Default”) with respect to such
party:—
(i) Failure
to Pay or Deliver. Failure
by the party to make, when due, any payment under this
Agreement or delivery under Section 2(a)(i) or 2(e) required to be
made by it if such failure is not remedied on or before the third
Local Business Day after notice of such failure is given to the
party;
(ii) Breach
of Agreement. Failure
by the party to comply with or perform any agreement or
obligation (other than an obligation to make any payment under this
Agreement or delivery under Section 2(a)(i) or 2(e) or to give
notice of a Termination Event or any agreement or obligation
under Section 4(a)(i), 4(a)(iii) or 4(d)) to be complied with or
performed by the party in accordance with this Agreement if
such failure is not remedied on or before the thirtieth day
after notice of such failure is given to the
party;
(iii) Credit
Support Default.
(1) Failure
by the party or any Credit Support Provider of such party to
comply with or perform any agreement or obligation to be
complied with or performed by it in accordance
with any Credit Support Document if such failure is continuing after
any applicable grace period has elapsed;
(2) the
expiration or termination
of such
Credit Support Document or the failing or ceasing
of such Credit
Support Document to be in full force and
effect
for the purpose of this Agreement (in either case
other than in accordance with its terms)
prior
to the satisfaction
of all obligations of such party
under each Transaction to which
such
Credit Support Document relates without the written consent
of the other party; or
(3) the
party
or such
Credit Support
Provider
disaffirms, disclaims, repudiates or rejects, in whole or in
part, or challenges the validity of, such Credit Support Document;
(iv) Misrepresentation.
A
representation (other than a representation under Section 3(e) or (f))
made or repeated
or deemed to have been made or repeated by the party or
any Credit Support
Provider of such
party in this Agreement or any Credit Support Document proves
to have been
incorrect or misleading
in any
material
respect when made or repeated or deemed to have been made
or repeated;
(v) Default
under Specified Transaction. The
party, any Credit Support Provider of such party or
any applicable Specified
Entity of such party (1) defaults under a Specified Transaction and, after
giving effect
to any applicable notice requirement or grace period, there occurs a
liquidation of, an
acceleration of obligations
under, or an
early
termination of, that Specified Transaction, (2) defaults,
after giving effect to any applicable notice requirement or grace
period, in making any payment or delivery due on the last
payment, delivery or exchange date of, or any payment
on early termination of, a Specified Transaction (or such
default continues for at least three Local Business Days if there
is no applicable notice requirement or grace period) or (3)
disaffirms, disclaims, repudiates or rejects, in whole or in
part, a Specified Transaction (or such action is taken by any
person or entity appointed or empowered to operate it or act
on its behalf);
(vi) Cross
Default. If
“Cross
Default” is specified in
the
Schedule as applying to the party, the occurrence or existence
of (1) a default, event of default or other similar condition or event
(however
5
described)
in respect of such
party,
any Credit Support Provider of such party or any applicable
Specified Entity of such party under one or more agreements or
instruments relating to Specified Indebtedness of any of
them (individually or collectively) in an aggregate amount of
not less than the applicable Threshold
Amount (as
specified in the Schedule) which has resulted in such Specified
Indebtedness becoming, or becoming capable at such time of being declared,
due and payable under such agreements or
instruments, before it would
otherwise have been due and payable or (2) a default
by such party, such Credit Support Provider or such Specified Entity
(individually or collectively) in making one or more
payments on the due date thereof
in an aggregate
amount
of not less than the applicable Threshold Amount under such
agreements or instruments (after giving effect to any
applicable notice requirement or grace period);
(vii) Bankruptcy.
The
party, any Credit Support Provider
of such
party or any applicable Specified Entity of such
party:—
(1) is
dissolved (other than pursuant to a consolidation, amalgamation or
merger); (2) becomes
insolvent or is
unable to
pay
its debts or fails or admits in writing
its
inability generally to pay its debts as they become due; (3)
makes a general assignment, arrangement or composition
with or for the benefit of its creditors; (4) institutes or has
instituted against it a proceeding seeking a judgment
of insolvency or bankruptcy or any other relief under
any bankruptcy or insolvency law or
other similar law affecting
creditors' rights, or a petition is presented for its
winding-up or liquidation, and, in the case of any such proceeding or
petition instituted or presented against it, such proceeding
or petition (A) results in a judgment of insolvency or
bankruptcy or the entry of an order for relief or the making of an
order for its winding-up or liquidation or (B) is
not
dismissed, discharged, stayed or restrained in each
case
within 30 days of the institution
or presentation thereof; (5) has
a
resolution
passed
for its winding-up, official management or
liquidation (other than pursuant to a consolidation,
amalgamation or merger); (6) seeks or becomes subject to the
appointment of an administrator, provisional liquidator,
conservator, receiver,
trustee, custodian or other similar official
for it
or for all or substantially all its assets; (7) has a
secured party take possession of all or substantially all its
assets or has a distress, execution, attachment,
sequestration
or other legal process
levied,
enforced or sued on or against all or substantially all its
assets and such secured party maintains possession, or
any such process
is
not dismissed, discharged, stayed or restrained, in each
case
within 30 days thereafter; (8) causes or is subject to any event
with respect to it which, under the applicable laws of any
jurisdiction, has an analogous effect to any of the events specified
in clauses (1) to (7) (inclusive);
or (9) takes any action in
furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the foregoing acts; or
(viii) Merger
Without Assumption. The
party
or any Credit Support Provider of such party
consolidates or amalgamates
with, or merges with or into,
or
transfers all or substantially all its assets
to, another entity and, at the time of such consolidation,
amalgamation, merger or transfer:—
(1) the
resulting, surviving or transferee entity fails
to
assume all the obligations of such party
or such Credit Support Provider under this Agreement or any Credit
Support Document to which it or its predecessor was a party
by operation of law or pursuant to an agreement
reasonably satisfactory to the other party to this Agreement;
or
(2) the
benefits of any Credit Support Document fail to extend (without the
consent of the other party) to the performance by such
resulting, surviving or transferee entity of its
obligations under this Agreement.
(b) Termination
Events. The
occurrence at any time with respect to a party or, if
applicable, any Credit Support Provider of
such party or any Specified
Entity
of such party of any event specified below constitutes
an Illegality if the event is specified in (i) below, a Tax Event if
the event is specified in (ii) below or a Tax
Event Upon Merger if the event is specified in (iii) below, and, if
specified to be
applicable, a Credit Event
6
Upon
Merger if the event is specified pursuant to (iv) below
or an
Additional Termination Event if the event
is specified pursuant to (v) below:—
(i) Illegality.
Due
to
the
adoption of, or any change in, any
applicable law after the date on which
a Transaction is entered into, or due to the promulgation of, or
any change in, the interpretation by any court, tribunal or
regulatory authority with competent jurisdiction of
any applicable law after such date, it becomes
unlawful (other than as a result of a breach by the party
of Section 4(b)) for such party (which will be the
Affected Party):—
(1) to
perform any absolute or contingent obligation to make a payment
or delivery or to receive a payment or delivery in
respect of such Transaction or to comply with any other
material provision of this Agreement relating to such Transaction;
or
(2) to
perform, or for any Credit Support
Provider of such
party to
perform, any contingent or other obligation which the
party (or such Credit Support Provider) has under any Credit
Support Document relating to such Transaction;
(ii) Tax
Event. Due
to
(x) any action
taken by a taxing authority, or brought in a court of competent
jurisdiction, on or after the date on which a Transaction is
entered into (regardless of whether such action is taken or
brought with respect to a party to this Agreement) or (y) a Change
in Tax Law, the party (which will be the Affected Party)
will, or there is a substantial likelihood that it will, on
the next succeeding Scheduled Payment Date (1) be required to pay to
the other party an additional amount in respect of an
Indemnifiable Tax under Section 2(d)(i)(4) (except
in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount is required to
be deducted or withheld for or on account of a Tax (except in
respect of interest under Section 2(e), 6(d)(ii) or 6(e))
and no additional amount is required to be paid in respect of
such Tax under Section 2(d)(i)(4) (other than by reason of
Section 2(d)(i)(4)(A) or (B));
(iii) Tax
Event Upon Merger. The
party
(the “Burdened Party”) on the next succeeding Scheduled
Payment Date will
either (1) be required to pay an additional
amount
in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii)
or 6(e)) or (2) receive a
payment from which an amount has been deducted or withheld for or
on account of any Indemnifiable Tax
in respect of which the other
party is
not required to pay an additional amount (other than by
reason of Section 2(d)(i)(4)(A) or (B)), in either case as a
result of a party consolidating or amalgamating with,
or merging with or into, or transferring all or substantially all
its assets to, another entity (which will be the Affected Party) where
such action does not constitute an event described in
Section 5(a)(viii);
(iv) Credit
Event Upon Merger. If
“Credit Event Upon Merger” is specified in the Schedule as applying
to the party,
such party (“X”), any Credit Support Provider of X or any applicable
Specified Entity of X
consolidates or amalgamates
with, or merges with or into,
or
transfers all or substantially all its assets
to, another entity and such action does
not
constitute an event described
in
Section 5(a)(viii) but the creditworthiness of the
resulting, surviving or transferee entity is materially
weaker
than that of X, such Credit Support
Provider or such Specified Entity,
as
the
case may be, immediately prior
to such action (and, in such event, X or its successor or
transferee, as appropriate, will be the Affected Party); or
(v) Additional
Termination Event. If
any
“Additional Termination Event” is specified in the
Schedule or any Confirmation as applying, the occurrence of such event
(and, in such event, the Affected Party or Affected Parties
shall be as specified for such Additional Termination Event in
the Schedule or such Confirmation).
(c) Event
of Default and Illegality. If
an
event or circumstance which would otherwise constitute or
give rise to an Event of Default also constitutes an Illegality,
it will be treated as an Illegality and will not
constitute an Event of Default.
7
6. Early
Termination
(a) Right
to Terminate Following Event of Default. If
at any
time an Event of Default with respect to a party (the
“Defaulting Party”) has occurred and is then continuing, the other
party (the “Non-defaulting Party”) may, by
not
more than 20 days notice to
the
Defaulting Party specifying the relevant Event of Default,
designate a day not earlier than the day such notice is effective as
an Early Termination Date in respect of
all outstanding Transactions. If, however, “Automatic Early
Termination” is specified in the Schedule as
applying to a party, then an Early Termination Date in respect of
all outstanding Transactions will occur immediately upon the
occurrence with respect to such party of an Event
of Default specified in Section 5(a)(vii)(l), (3), (5),
(6)
or,
to the extent analogous thereto, (8), and as of the time immediately
preceding the institution of the relevant proceeding or the
presentation of the relevant petition upon the
occurrence with respect
to such party of an Event of Default
specified in Section 5(a)(vii)(4) or, to the extent
analogous thereto, (8).
(b) Right
to Terminate Following Termination Event.
(i) Notice.
If
a
Termination Event occurs, an Affected Party will, promptly upon
becoming aware of
it, notify the other
party, specifying the nature of that Termination Event
and
each Affected Transaction
and will also give
such other information about
that Termination Event as the
other
party may reasonably
require.
(ii) Transfer
to Avoid Termination Event. If
either
an Illegality under Section 5(b)(i)(l) or a Tax
Event occurs and there is only one Affected Party, or if a Tax Event
Upon Merger occurs and the Burdened Party is the Affected Party,
the Affected Party will, as a condition to its right to designate
an Early Termination Date under Section 6(b)(iv), use all reasonable
efforts (which will not require such party to incur a loss,
excluding
immaterial, incidental expenses)
to
transfer within 20 days after it gives notice under Section
6(b)(i) all its rights and obligations under this
Agreement in respect of the Affected Transactions to
another of its Offices or Affiliates so that such Termination Event
ceases to exist.
If
the
Affected Party is not able to make such a transfer it will give notice to the
other party to that effect within such
20 day period, whereupon the other party may effect such
a transfer within
30 days after the notice is given under Section
6(b)(i).
Any
such
transfer by a party under this Section 6(b)(ii) will be subject to and
conditional upon the prior written consent of the other
party, which consent will not be withheld if such other party's
policies in effect at such time would permit it to enter into
transactions with the transferee on the
terms proposed.
(iii) Two
Affected Parties. If
an
Illegality under Section 5(b)(i)( 1) or
a Tax
Event occurs and there are two Affected Parties,
each party will use
all
reasonable efforts to reach agreement within 30 days
after notice thereof is given under Section 6(b)(i) on action to avoid
that Termination Event.
(iv) Right to
Terminate. If:—
(1) a
transfer under
Section 6(b)(ii) or an agreement
under
Section 6(b)(iii), as the case may
be, has not been effected with respect to all Affected
Transactions within 30 days after an
Affected Party gives notice under Section 6(b)(i); or
(2) an
Illegality under Section 5(b)(i)(2), a Credit Event Upon Merger
or an Additional Termination Event occurs,
or a Tax Event
Upon
Merger occurs and the Burdened Party is not
the Affected Party,
either
party in the case of an Illegality, the
Burdened Party in the
case of
a Tax Event Upon Merger, any Affected Party in the case
of a Tax Event or an Additional Termination Event
if there is more than one Affected Party, or the party
which is not the Affected Party in the case of a Credit Event
Upon Merger or an Additional Termination Event if there is only one
Affected Party may, by not more than 20 days notice
to
the
other party and provided that the relevant
Termination Event is then
8
continuing,
designate a day not earlier than the day such notice is effective as
an Early Termination Date in respect of all Affected
Transactions.
(c) Effect
of Designation.
(i) If
notice
designating an Early Termination Date is given under Section 6(a)
or (b), the Early Termination Date will occur on the date so
designated, whether or not the relevant Event of Default
or Termination Event is then continuing.
(ii) Upon
the
occurrence or effective designation of an Early
Termination Date, no further payments or deliveries
under Section 2(a)(i) or 2(e) in respect of the
Terminated Transactions will be required to
be made, but without prejudice to the
other
provisions of this Agreement. The amount, if any, payable in
respect of an Early Termination Date shall
be
determined pursuant to Section 6(e).
(d) Calculations.
(i) Statement.
On
or as
soon as reasonably practicable following the
occurrence of an Early Termination Date, each
party will make the calculations on its
part,
if any, contemplated by Section 6(e)
and will provide to the other party a statement (1) showing, in
reasonable detail, such calculations (including all relevant
quotations and specifying any amount
payable under Section 6(e)) and (2) giving
details of the
relevant account to which any
amount payable to it is to be paid. In the
absence of written confirmation from the
source of a quotation obtained in determining a Market
Quotation, the records of
the party obtaining such quotation will be conclusive evidence of
the existence and accuracy of such quotation.
(ii) Payment
Date. An
amount
calculated as being due in respect of any
Early Termination Date under Section 6(e) will
be payable on the day that notice of the amount payable
is effective (in the case of an Early Termination
Date which is designated or occurs as a result of
an Event of Default) and on the day
which is two Local Business Days after the day on
which
notice of the amount payable is effective (in the
case
of an Early Termination Date which
is
designated as a result of a Termination
Event). Such amount will be paid together with (to the extent
permitted under applicable law)
interest thereon (before as well
as
after judgment) in the Termination Currency, from (and including)
the relevant Early Termination Date to (but excluding) the date such
amount is paid, at the Applicable Rate. Such interest
will be calculated on the basis of daily
compounding and the actual
number of days elapsed.
(e) Payments
on Early Termination. If
an
Early Termination Date
occurs, the following provisions shall apply based
on the parties' election in the Schedule of a payment measure,
either “Market Quotation” or “Loss”, and a payment
method, either the “First Method” or the “Second Method”. If the
parties fail to designate a payment
measure or payment method in the Schedule, it will be
deemed
that “Market Quotation” or the “Second Method”,
as
the
case may be, shall apply. The amount,
if any,
payable in respect of an Early Termination Date and
determined pursuant to this Section will be subject to any Set-off.
(i) Events
of Default. If
the
Early Termination Date results from an Event of Default:—
(1) First
Method and Market Quotation.
If
the
First Method and Market Quotation apply, the
Defaulting Party will
pay
to the Non-defaulting Party the excess, if a positive
number, of (A) the
sum of the Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and
the Termination Currency Equivalent of the Unpaid Amounts owing
to the Non-defaulting Party over (B) the Termination Currency
Equivalent of the Unpaid Amounts owing to the Defaulting
Party.
(2) First
Method and Loss. If
the
First Method and Loss apply, the Defaulting Party will pay
to the Non-defaulting Party, if a positive number, the
Non-defaulting Party's Loss in respect
of this Agreement.
(3) Second
Method and Market Quotation. If
the
Second Method and Market Quotation apply,
an amount will be payable equal to (A) the sum of the Settlement
Amount (determined by
the
9
Non-defaulting
Party) in
respect of the Terminated Transactions and the Termination Currency
Equivalent of the
Unpaid Amounts owing to the Non-defaulting Party less (B) the Termination
Currency Equivalent of the Unpaid Amounts owing to the Defaulting
Party. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting Party; if
it is a negative
number, the Non-defaulting
Party will pay the absolute value of that amount to the Defaulting
Party.
(4) Second
Method and Loss.
If
the
Second Method and Loss apply, an amount will be payable
equal to the Non-defaulting Party's Loss in respect of this
Agreement. If that amount is a
positive number, the
Defaulting Party will pay it to the Non-defaulting Party;
if
it is a negative number, the Non-defaulting
Party will pay the absolute value of that amount
to the Defaulting Party.
(ii) Termination
Events. If
the
Early Termination Date results from a Termination Event:—
(1) One
Affected Party.
If
there
is one Affected Party, the amount payable will be determined
in accordance with Section
6(e)(i)(3), if Market Quotation applies, or Section 6(e)(i)(4), if Loss
applies, except that,
in
either case, references to the Defaulting Party and
to the Non-defaulting Party will be deemed to be
references to the Affected Party and the party which is not the
Affected Party, respectively,
and, if Loss applies and fewer than all the Transactions are being
terminated, Loss shall be calculated in respect of all Terminated
Transactions.
(2) Two
Affected Parties. If
there
are two Affected Parties:—
(A) if
Market
Quotation applies, each party will determine
a Settlement Amount in respect of the Terminated
Transactions, and an amount will be payable equal to (I) the
sum of (a) one-half of the difference between the Settlement
Amount of the party with
the higher Settlement Amount (“X”) and the Settlement Amount of
the party with the lower Settlement Amount (“Y”) and
(b) the Termination Currency Equivalent of the Unpaid Amounts owing
to X less (II) the Termination Currency Equivalent of the Unpaid
Amounts owing to Y; and
(B) if
Loss
applies, each party will determine its
Loss
in respect of this Agreement (or,
if fewer than all the Transactions are being terminated, in
respect of all Terminated Transactions) and an
amount will be payable equal to one-half
of
the difference between the Loss of
the party with the higher Loss (“X”) and
the Loss
of the party with the lower Loss (“Y”).
If
the
amount payable is a positive number, Y will pay it to X; if it is
a negative number, X will pay the absolute value
of that amount to Y.
(iii) Adjustment
for Bankruptcy. In
circumstances where an Early Termination Date occurs
because “Automatic Early Termination” applies in respect of a party,
the amount determined under this Section 6(e) will be
subject to such adjustments as are appropriate and
permitted by law to reflect any payments or
deliveries made by one
party to
the other under this Agreement (and retained
by such other party) during the period from the relevant Early
Termination Date to the date for
payment determined under Section 6(d)(ii).
(iv) Pre-Estimate.
The
parties
agree that if Market Quotation
applies
an amount recoverable under this Section 6(e) is a
reasonable pre-estimate of loss and not a penalty. Such
amount is payable for the loss of bargain and the
loss of protection against future risks and
except as otherwise provided
in this Agreement neither party will be entitled to recover any
additional damages as a consequence
of such losses.
10
7. Transfer
Subject
to Section 6(b)(ii), neither this Agreement nor any interest or obligation
in
or under this Agreement
may be transferred (whether
by way of security or otherwise) by either party without
the prior written consent of the other party,
except that: —
(a) a
party
may make such a transfer of this Agreement pursuant to
a consolidation or amalgamation
with, or merger with or into, or transfer of all or substantially
all its assets to, another entity (but without
prejudice to any other right or remedy under this Agreement);
and
(b) a
party
may make such a transfer of all or any part of its interest in
any
amount payable to it from
a Defaulting Party under Section 6(e).
Any
purported transfer that is not in compliance with this Section will be
void.
8. Contractual
Currency
(a) Payment
in the Contractual Currency. Each
payment under this Agreement will be made in the
relevant currency specified
in this Agreement for that payment (the “Contractual Currency”). To the extent
permitted by applicable law, any obligation to make payments under
this Agreement in the Contractual Currency will not be
discharged or satisfied by any tender in any currency other
than the Contractual Currency, except to the
extent such tender results in the actual receipt
by the
party to which payment is owed,
acting in a reasonable manner and
in
good faith in converting the currency
so
tendered into the Contractual Currency, of the full amount
in the Contractual Currency of all amounts
payable
in respect of this Agreement. If for any reason
the amount in the Contractual Currency so received falls short of
the amount in the Contractual Currency payable
in respect of this Agreement, the party required
to make
the payment will, to the extent permitted by
applicable law, immediately pay such additional amount
in the Contractual Currency as may be necessary
to
compensate for the shortfall. If for any reason
the
amount in the Contractual Currency so received exceeds
the amount
in
the Contractual Currency payable
in
respect of this Agreement, the party
receiving the payment will refund promptly the amount of such
excess.
(b) Judgments.
To
the
extent permitted by applicable law, if any judgment or
order expressed in a currency other than the
Contractual Currency is rendered (i) for the payment
of any
amount owing in respect
of this Agreement, (ii) for the payment of any amount
relating to any early termination in respect of this
Agreement or (iii) in respect
of a judgment or order of another court for the
payment
of any amount described in (i) or (ii) above, the
party seeking recovery, after recovery in full of the
aggregate amount to which such
party is entitled pursuant to the judgment or order, will be
entitled to receive immediately from the other
party the amount of any shortfall of the Contractual Currency
received by such party as a consequence of
sums paid in such other currency and will refund promptly to the
other party any excess of the Contractual
Currency received by such party as a consequence of sums paid in such
other currency if such shortfall or such excess arises
or results from any variation between the rate of exchange
at which the Contractual Currency is converted into
the
currency of the judgment or order for
the
purposes of such judgment or order and the rate of
exchange at which such party is able, acting in a reasonable manner and
in good faith in
converting the currency received
into the Contractual Currency, to purchase
the Contractual Currency with the amount of the
currency of the judgment or order actually received by such party.
The term “rate of exchange” includes, without
limitation, any premiums and costs
of
exchange payable in connection with the
purchase of or conversion into the Contractual
Currency.
(c) Separate
Indemnities. To
the
extent permitted by applicable law, these indemnities constitute
separate and independent obligations from the other obligations in
this Agreement, will be enforceable as
separate and independent causes of action, will apply notwithstanding
any indulgence granted by the party
to which any payment is owed and will not be affected by judgment
being obtained or claim or proof being made for any
other sums payable in respect of this Agreement.
(d) Evidence
of Loss. For
the
purpose of this Section 8, it will be sufficient for
a party to demonstrate that it would have suffered
a loss had an actual exchange or purchase been made.
11
9. Miscellaneous
(a) Entire
Agreement. This
Agreement constitutes the entire agreement and understanding of the parties
with respect to its subject matter and supersedes all oral
communication and prior writings with respect
thereto.
(b) Amendments.
No
amendment, modification or waiver in respect of this
Agreement will be effective unless in writing
(including a writing evidenced by a facsimile transmission) and executed
by each of the parties or confirmed by an exchange of
telexes or electronic messages on an electronic messaging system.
(c) Survival
of Obligations. Without
prejudice to Sections 2(a)(iii) and 6(c)(ii),
the obligations of the parties under this Agreement
will survive the termination of any Transaction.
(d) Remedies
Cumulative. Except
as
provided in this Agreement, the rights, powers, remedies and
privileges provided in this Agreement are cumulative and not exclusive
of any rights, powers, remedies and privileges provided by
law.
(e) Counterparts
and Confirmations.
(i) This
Agreement (and each amendment, modification and waiver in respect
of it) may be executed and delivered in counterparts
(including by facsimile transmission), each of which will be
deemed an original.
(ii) The
parties intend that they are legally
bound by the terms of each Transaction
from the moment they agree to those terms
(whether orally or otherwise).
A
Confirmation shall be entered into as
soon as practicable and may be executed and delivered in
counterparts (including by facsimile
transmission) or be created by an exchange of telexes or by an
exchange of electronic messages on an electronic messaging system,
which
in
each
case will be sufficient
for all
purposes to evidence a binding supplement to this Agreement.
The parties will specify therein or through another effective
means that any such counterpart, telex or electronic message
constitutes a
Confirmation.
(f) No
Waiver of Rights.
A
failure
or delay in exercising any right,
power
or privilege in respect of this
Agreement will not
be
presumed to operate
as a
waiver, and a single or partial exercise of any right, power
or privilege will not be presumed to preclude any subsequent or
further exercise, of that right, power or privilege or the
exercise of any other right, power or privilege.
(g) Headings.
The
headings used in this Agreement are for convenience of reference
only and are not to affect the construction of or
to be taken into consideration in interpreting this Agreement.
10. Offices;
Multibranch Parties
(a) If
Section 10(a) is specified in the Schedule as applying, each party that
enters into a Transaction through an Office other than
its head or home office represents to the other party
that, notwithstanding the place of booking office or
jurisdiction
of incorporation or organisation
of such
party, the obligations of such party are the same
as if it had entered into the Transaction through its head
or home
office. This representation
will be deemed to be repeated by such party on each date on which
a Transaction is entered
into.
(b) Neither
party may change the Office through which it makes and
receives payments or deliveries for the purpose of
a Transaction without the prior written consent of the other party.
(c) If
a
party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or
deliveries under
any
Transaction through any Office listed
in
the Schedule, and the Office through which it
makes and receives payments or deliveries with respect to
a Transaction will be specified in the relevant
Confirmation.
11. Expenses
A
Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses,
including legal fees and Stamp Tax, incurred by
such other party by reason of the enforcement
and protection of its rights under this Agreement or
any
Credit Support Document
12
to which the Defaulting
Party is a party or by reason of the early
termination of any Transaction, including,
but not limited to, costs of collection.
12. Notices
(a) Effectiveness. Any
notice or other
communication in respect of this Agreement
may
be given in any manner set forth below
(except that a notice or other communication
under
Section 5 or 6 may not be given
by facsimile transmission or electronic messaging system) to the
address or number or in accordance with
the electronic messaging system details provided (see the
Schedule) and will be deemed effective as
indicated:—
(i) if
in
writing and delivered in person or by courier, on the date it is
delivered;
(ii) if
sent
by telex, on the date the recipient's answerback is received;
(iii) if
sent
by facsimile transmission, on the date that transmission is
received by a responsible employee of the recipient in
legible form (it being agreed that the burden of
proving receipt will be on the sender and will not
be met by a transmission report generated by the sender's facsimile
machine);
(iv) if
sent
by certified or registered mail (airmail, if overseas) or
the equivalent (return receipt
requested), on the date that mail is delivered or its delivery is
attempted; or
(v) if
sent
by electronic messaging system, on the date that electronic message is
received,
unless
the
date
of that delivery (or attempted delivery) or that receipt,
as
applicable, is not a Local Business
Day or that communication
is delivered (or attempted)
or
received, as applicable, after the close of business
on a Local Business Day,
in
which case that communication
shall be
deemed given and effective on the first
following day that is a Local Business Day.
(b) Change
of Addresses.
Either
party may by notice to the other change the
address, telex or facsimile
number or electronic messaging
system details at which notices
or other
communications are to be given to
it.
13. Governing
Law and Jurisdiction
(a) Governing
Law. This
Agreement will be governed by and construed
in accordance with the law
specified in the Schedule.
(b) Jurisdiction.
With
respect to any suit, action or
proceedings relating to this Agreement
(“Proceedings”), each party irrevocably:—
(i) submits
to the jurisdiction
of the English courts, if this Agreement
is expressed to be governed
by English law, or to the non-exclusive jurisdiction of the
courts of the State of New York and the
United States District Court located in the Borough of Manhattan in
New York City, if this
Agreement is expressed to be governed by the laws of the State of
New York; and
(ii) waives
any objection which it may have at any time to the laying
of venue of any Proceedings
brought in any such court, waives any claim that such Proceedings
have been brought in an
inconvenient forum and further waives the right to object, with
respect to such Proceedings, that
such court does not have any jurisdiction over such
party.
Nothing
in this Agreement precludes either party from bringing Proceedings
in any other jurisdiction
(outside, if this Agreement is expressed to be governed by
English law, the Contracting States, as defined in Section 1(3) of
the Civil Jurisdiction and Judgments Xxx 0000 or
any modification, extension or
reenactment thereof for the time being in force) nor will the
bringing of Proceedings in any one or more
jurisdictions preclude the bringing of Proceedings in any other
jurisdiction.
(c) Service
of Process. Each
party
irrevocably appoints the Process Agent
(if any) specified opposite
its name in the Schedule
to receive, for it and on its behalf, service of process
in any
Proceedings. If for any
13
reason
any party's Process Agent is unable to act as such, such party will promptly
notify the other party and within 30 days appoint
a substitute process agent acceptable to the other
party. The parties irrevocably
consent to service of process given in the manner provided for
notices in Section 12. Nothing in this
Agreement will affect the right of either party to serve process
in any other manner permitted by law.
(d) Waiver
of Immunities. Each
party irrevocably waives, to the fullest
extent permitted by applicable
law, with respect to itself
and its
revenues and assets (irrespective of their use or
intended
use), all immunity on the grounds of sovereignty
or other similar grounds from
(i)
suit, (ii) jurisdiction of any court, (iii) relief
by way of injunction, order
for
specific performance or for recovery of property,
(iv)
attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment
to which it or its revenues or assets might
otherwise be entitled in any Proceedings in the courts of
any jurisdiction and irrevocably agrees, to the extent
permitted
by applicable law, that it will
not
claim any such immunity in any Proceedings.
14. Definitions
As
used
in this Agreement:—
“Additional
Termination Event” has
the
meaning specified in Section 5(b).
“Affected
Party” has
the
meaning specified in Section 5(b).
“Affected
Transactions” means
(a)
with respect to any Termination Event
consisting of an Illegality, Tax
Event or Tax Event Upon Merger, all Transactions affected by
the occurrence of such Termination Event
and (b) with respect to any other Termination Event, all
Transactions.
“Affiliate”
means,
subject to the Schedule, in relation to any person, any
entity controlled, directly or
indirectly, by the person, any entity that controls, directly or
indirectly, the person or any entity directly or indirectly under common
control with the person. For this
purpose,
“control” of any entity or person means
ownership of a majority of the voting power of the entity or
person.
“Applicable
Rate” means:—
(a) in
respect of obligations payable or deliverable (or which would have been
but for Section 2(a)(iii))
by a Defaulting Party, the Default Rate;
(b) in
respect of an obligation
to pay an amount under Section 6(e) of
either
party from and after the date
(determined in accordance with Section 6(d)(ii)) on which that
amount is payable, the Default Rate;
(c) in
respect of
all
other obligations payable or deliverable
(or
which would have been but for
Section 2(a)(iii)) by a Non-defaulting Party, the
Non-default Rate; and
(d) in
all
other cases, the Termination Rate.
“Burdened
Party” has
the
meaning specified in Section 5(b).
“Change
in Tax Law” means
the
enactment,
promulgation, execution or ratification of,
or any change in or amendment to, any law
(or
in the
application or official interpretation
of any
law) that occurs on or after the
date on which the relevant Transaction is entered
into.
“consent”
includes
a consent, approval, action, authorisation, exemption,
notice, filing, registration or
exchange control consent.
“Credit
Event Upon Merger” has
the
meaning specified in Section 5(b).
“Credit
Support Document” means
any
agreement or instrument that is specified as such
in this
Agreement.
“Credit
Support Provider” has
the
meaning specified in the Schedule.
“Default
Rate” means
a
rate per annum equal to the cost (without proof or evidence of
any actual cost) to the relevant payee (as
certified by it) if it were to fund or of funding the relevant amount plus
1%
per
annum.
14
“Defaulting
Party” has
the
meaning specified in Section 6(a).
“Early
Termination Date” means
the
date determined in accordance with Section 6(a) or 6(b)(iv).
“Event
of Default” has
the
meaning specified in Section 5(a) and,
if
applicable, in the Schedule.
“Illegality”
has
the
meaning specified in Section 5(b).
“Indemnifiable
Tax” means
any
Tax other than a Tax that would not be imposed
in respect of a payment
under this Agreement but for a present or former connection
between the jurisdiction of the government or
taxation authority imposing
such Tax and the recipient of such payment or a person
related to such recipient
(including, without limitation, a connection arising from such
recipient or related person being or having
been a citizen or resident of such jurisdiction, or being or
having been organised, present or engaged in a
trade or business in such jurisdiction, or having or having had a
permanent establishment or fixed place of
business in such jurisdiction,
but excluding a connection arising solely from such
recipient or related person having executed, delivered,
performed its obligations or received a payment
under, or enforced, this Agreement or a Credit
Support Document).
“law” includes
any treaty, law, rule
or
regulation (as modified, in the case of tax matters,
by the practice of
any relevant governmental revenue authority) and
“lawful”
and
“unlawful”
will
be
construed
accordingly.
“Local
Business Day” means,
subject to the Schedule, a day on which commercial
banks are open for business (including dealings in
foreign exchange and foreign currency deposits) (a)
in relation to any
obligation under Section 2(a)(i), in
the
place(s) specified in the relevant Confirmation
or,
if not so specified,
as otherwise agreed by
the
parties in writing or determined pursuant
to
provisions contained, or incorporated
by reference, in this Agreement, (b) in relation
to any other payment, in the place where the relevant account
is located and, if different, in the principal financial
centre, if any, of the currency of such payment, (c) in
relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the
city specified in the address for notice provided by the
recipient and, in the case of a notice contemplated
by Section 2(b), in the place where the relevant
new account is to
be
located and (d) in relation to
Section 5(a)(v)(2), in the
relevant locations for performance with respect to such Specified
Transaction.
“Loss”
means,
with respect to this Agreement or one or more Terminated Transactions, as the
case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines
in good faith to be its total losses and
costs (or
gain,
in which case expressed
as a
negative number) in connection with this Agreement
or that Terminated Transaction
or group of Terminated Transactions, as the case may
be, including any loss of
bargain, cost of funding or, at the election of such party
but without duplication, loss or cost incurred as a result
of its terminating, liquidating, obtaining or reestablishing any
hedge or related trading position (or any gain
resulting from any of them). Loss includes losses and
costs
(or
gains) in respect of any payment or delivery
required to have been made
(assuming satisfaction of each applicable
condition precedent) on or before the relevant Early Termination Date
and not made, except, so as to avoid duplication, if
Section 6(e)(i)(1) or (3) or
6(e)(ii)(2)(A) applies. Loss
does
not include a party's legal fees and out-of-pocket expenses referred to under
Section
11. A party will determine its Loss as of the relevant Early
Termination Date, or, if that is not reasonably
practicable, as of the earliest date thereafter as is reasonably
practicable. A party may (but need not) determine
its Loss by reference to
quotations of relevant rates or prices from
one or
more leading dealers in the relevant markets.
“Market
Quotation” means,
with respect to one or more Terminated Transactions and
a party making the
determination, an amount determined on the basis of quotations
from Reference Market-makers. Each
quotation will be for an amount, if any, that would be paid to
such party (expressed as a negative number)
or by such party (expressed
as a positive number) in consideration of an
agreement between such party (taking
into account any existing Credit Support Document with respect to
the obligations of such party) and the
quoting Reference Market-maker to enter into a transaction (the
“Replacement Transaction”) that would
have the effect of preserving for such party the economic
equivalent of any payment or delivery (whether
the underlying obligation was absolute or contingent and assuming the
satisfaction of each applicable
condition precedent) by the
parties under Section 2(a)(i) in respect of such
Terminated Transaction or group
of Terminated Transactions that
would, but for the occurrence of the relevant
Early
Termination Date, have
15
been
required after that date. For
this
purpose, Unpaid Amounts in respect of the Terminated Transaction or
group of Terminated Transactions are to be excluded but, without
limitation, any payment or delivery that
would, but for the relevant Early Termination Date, have been
required (assuming satisfaction of each
applicable condition precedent) after that Early Termination Date is
to be included. The Replacement
Transaction would be subject
to such documentation as such party and the Reference Market-maker may, in
good faith, agree. The
party
making the determination (or its
agent) will request each Reference
Market maker to provide its quotation to the extent
reasonably practicable as of the same day and time
(without regard to different time zones) on or as soon as
reasonably practicable after the relevant Early
Termination Date. The day and
time
as of which those quotations are to be obtained
will be selected in good faith by the party
obliged to
make a
determination under Section 6(e), and,
if each
party is so obliged, after
consultation with the other. If more than three quotations are
provided, the Market Quotation will be the
arithmetic mean of the quotations, without
regard to the quotations having the highest
and lowest values. If
exactly three such quotations are provided, the Market Quotation
will be the quotation remaining after
disregarding the highest and lowest quotations. For this purpose,
if more than one quotation has the same
highest value or lowest
value, then one of such quotations shall be disregarded.
If
fewer than three quotations are provided, it will
be deemed that the Market Quotation in respect
of such
Terminated Transaction or group
of Terminated Transactions cannot be determined.
“Non-default
Rate” means
a
rate
per
annum equal to the cost (without proof or evidence of any actual cost)
to the Non-defaulting Party (as certified by it) if it were to
fund the relevant amount.
“Non-defaulting
Party” has
the
meaning specified in Section 6(a).
“Office”
means
a
branch or office of a party, which may be such party's head or home
office.
“Potential
Event of Default” means
any
event
which, with the giving of notice or
the
lapse of time or both, would constitute an Event
of Default.
“Reference
Market-makers” means
four leading dealers in the relevant
market selected by the party determining a Market
Quotation in good faith (a) from among dealers of the
highest credit standing which
satisfy all the criteria that such party applies generally at the
time in deciding whether to offer or to make
an extension of credit and
(b)
to the extent practicable, from among such dealers
having
an office in the same city.
“Relevant
Jurisdiction” means,
with respect to a party, the jurisdictions (a) in
which the party is incorporated, organised, managed
and controlled or considered to have
its
seat, (b) where an Office through
which the party is acting for purposes of this Agreement is
located, (c) in which the party executes this
Agreement and (d) in relation to any payment, from or through
which such payment is
made.
“Scheduled
Payment Date” means
a
date on which a payment or delivery is to be
made under Section 2(a)(i)
with respect to a Transaction.
“Set-off”
means
set-off, offset, combination of accounts, right of retention or
withholding or similar right
or requirement to which
the payer of an amount
under Section 6 is entitled
or
subject (whether arising under
this Agreement, another contract, applicable law or otherwise)
that is exercised by, or imposed on, such
payer.
“Settlement
Amount” means,
with respect to a party and any Early Termination Date, the sum
of:—
(a) the
Termination Currency
Equivalent of the Market Quotations (whether
positive or negative) for each
Terminated Transaction or group
of Terminated Transactions for which
a
Market Quotation is determined;
and
(b) such
party's Loss (whether positive or negative and without reference
to any Unpaid Amounts) for
each Terminated Transaction or
group of Terminated Transactions for which a Market Quotation cannot be
determined or would not (in the reasonable belief of the party
making the determination) produce a
commercially reasonable result.
“Specified
Entity” has
the
meaning specified in the Schedule.
16
“Specified
Indebtedness” means,
subject to the Schedule, any obligation
(whether present or future,
contingent or otherwise, as principal or surety or otherwise) in
respect of borrowed money.
“Specified
Transaction” means,
subject
to the Schedule, (a) any transaction (including
an agreement with respect
thereto) now existing or hereafter
entered into between one party to this
Agreement (or any Credit Support Provider of such party or any
applicable Specified Entity of such party) and the other
party to this Agreement (or
any Credit Support Provider of
such
other party or
any
applicable Specified Entity of such other party) which is
a rate swap transaction, basis swap, forward rate transaction,
commodity swap, commodity option, equity or
equity index swap, equity or equity index option, bond
option, interest rate option, foreign exchange transaction,
cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction
(including any option with respect to any of these
transactions), (b) any combination of these transactions and
(c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant
confirmation.
“Stamp
Tax” means
any
stamp, registration, documentation or similar tax.
“Tax”
means
any
present
or future tax, levy, impost, duty, charge,
assessment or fee of any nature (including
interest, penalties and additions thereto) that is imposed by any
government or other taxing authority in
respect of any payment under this Agreement other
than a stamp, registration, documentation
or
similar tax.
“Tax
Event” has
the
meaning specified in Section 5(b).
“Tax
Event Upon Merger” has
the
meaning specified in Section 5(b).
“Terminated
Transactions” means
with respect to any Early Termination Date
(a) if resulting from a Termination Event, all Affected Transactions
and (b) if resulting from
an
Event of Default, all Transactions
(in either case) in effect immediately
before the effectiveness of the notice designating that Early Termination
Date (or, if “Automatic Early Termination” applies,
immediately before that Early Termination Date).
“Termination
Currency” has
the
meaning specified in the Schedule.
“Termination
Currency Equivalent” means,
in
respect of any amount denominated in the Termination
Currency, such Termination Currency
amount and, in respect of any amount denominated in a currency other
than the Termination Currency
(the “Other Currency”), the amount in
the Termination Currency determined
by the party making the relevant determination as being
required to purchase such amount of such Other
Currency as at the relevant Early
Termination Date, or, if the relevant Market Quotation or Loss (as the case
may be), is determined as of a
later
date, that later date, with the
Termination Currency at the rate equal to
the spot exchange rate of the foreign exchange agent
(selected as provided below) for the purchase of such
Other Currency with the Termination Currency at or about 11:00 a.m.
(in the city in which such foreign
exchange agent is located) on such date as would be customary for
the determination of such a rate for the
purchase of such Other Currency for value on the
relevant Early Termination Date or that later date. The
foreign exchange agent will, if only one party is obliged to make
a determination under Section 6(e), be
selected in good faith by that party and otherwise will
be agreed by the parties.
“Termination
Event” means
an
Illegality, a Tax Event or a Tax Event Upon Merger or,
if specified to be applicable, a Credit Event Upon
Merger or an Additional Termination Event.
“Termination
Rate” means
a
rate per annum equal to the arithmetic mean of the cost (without
proof or evidence of any actual cost) to each party (as
certified by such party) if it were to
fund or of funding such amounts.
“Unpaid
Amounts” owing
to
any
party
means, with respect to an Early Termination
Date, the aggregate of
(a) in respect of all Terminated
Transactions, the amounts
that
became payable (or that would have become
payable but for Section 2(a)(iii)) to such party under Section
2(a)(i) on or prior to such Early Termination
Date and which remain unpaid as at such Early Termination
Date and (b) in respect of each Terminated Transaction, for each obligation
under Section 2(a)(i) which was (or would have been but for
Section 2(a) (iii)) required
to be settled by delivery to such party on or prior to such Early Termination Date
and which has not been so settled as at such Early
Termination Date, an amount equal to the fair market
17
value
of that which was (or would have been) required to be delivered as of the
originally scheduled date for delivery, in each case together with (to the
extent permitted under applicable law) interest, in the currency of such
amounts, from (and including) the date such amounts or obligations were or
would
have been required to have been paid or performed to (but excluding) such Early
Termination Date, at the Applicable Rate. Such amounts of interest will be
calculated on the basis of daily compounding and the actual number of days
elapsed. The fair market value of any obligation referred to in clause (b)
above
shall be reasonably determined by the party obliged to make the determination
under Section 6(e) or, if each party is so obliged, it shall be the average
of
the Termination Currency Equivalents of the fair market values reasonably
determined by both parties.
IN
WITNESS WHEREOF the parties have executed this document on the respective dates
specified below with effect from the date specified on the first page of this
document.
SWISS
RE FINANCIAL PRODUCTS CORPORATION
|
XXXXX
FARGO BANK, N.A., solely in its capacity as Securities Administrator
on
behalf of the Trust with respect to HarborView Mortgage Loan Trust
Mortgage Loan Pass-Through Certificates, Series
2007-7
|
|
(Name
of Party)
|
(Name
of Party)
|
|
/s/
Xxxxxx Xxxxxx
|
/s/
Xxxxxx X. Xxxxxxx
|
|
Name:
Xxxxxx Xxxxxx
|
Name:
Xxxxxx X. Xxxxxxx
|
|
Title:
Director
|
Title:
Vice President
|
|
Date:
October 2, 2007
|
Date:
October 2, 2007
|
18
EXECUTION
Basis
Risk
Cap Schedule
SCHEDULE
to
the
Master
Agreement
dated
as
of October
2, 2007
between
SWISS
RE FINANCIAL PRODUCTS CORPORATION
|
and
|
XXXXX
FARGO BANK, N.A., solely in its capacity as Securities Administrator
on
behalf of the Trust with respect to HarborView Mortgage Loan Trust
Mortgage Loan Pass-Through Certificates, Series
2007-7
|
_______________________________________
(“Party
A”)
|
_________________________________________
(“Party
B”)
|
Part
1
Termination
Provisions.
(a)“Specified
Entity”
means in
relation to Party A for the purpose of:
Section
5(a)(v),
|
Not
applicable
|
Section
5(a)(vi),
|
Not
applicable
|
Section
5(a)(vii),
|
Not
applicable
|
Section
5(b)(iv),
|
Not
applicable
|
and
in
relation to Party B for the purpose of:
Section
5(a)(v),
|
Not
applicable
|
Section
5(a)(vi),
|
Not
applicable
|
Section
5(a)(vii),
|
Not
applicable
|
Section
5(b)(iv),
|
Not
applicable
|
(b) “Specified
Transaction”
will not
apply to Party A or to Party B.
(c) Certain
Events of Default.
The
following Events of Default will apply to the parties as specified below,
and
the definition of “Event of Default” in Section 14 is deemed to be modified
accordingly:
Section
5(a)(i) (Failure
to Pay or Deliver)
will
apply to Party A and Party B; provided,
however,
that
Section 5(a)(i) is hereby amended by replacing the word “third” with the word
“first.”
1
Section
5(a)(ii) (Breach
of Agreement)
will
apply to Party A and will not apply to Party B; except that Section 5(a)(ii)
will not apply to Party A with respect to Party A’s failure to comply with Part
5(b)(ii) or Part 5(b)(iii) herein.
Section
5(a)(iii) (Credit
Support Default)
will
apply to Party A and will not apply to Party B; except that Section 5(a)(iii)(1)
will apply in respect of Party B’s obligations under Paragraph 3(b) of any
Credit Support Document.
Section
5(a)(iv) (Misrepresentation)
will
apply to Party A and will not apply to Party B.
Section
5(a)(v) (Default
under Specified Transaction)
will
not apply to Party A or Party B.
Section
5(a)(vi) (Cross
Default)
will
not apply to Party B and will apply to Party A with a Threshold Amount equal
to
three percent of its Shareholders’ Equity.
“Relevant
Entity”
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.
“Shareholders’
Equity”
shall mean Swiss Reinsurance Company, determined as of the end of the most
recent period for which financial statements have been prepared.
Section
5(a)(vii) (Bankruptcy)
will
apply to Party A and Party B; provided
that
clauses (2), (7) and (9) thereof shall not apply to Party B; provided
further
that clause (4) thereof shall not apply to Party B with respect to proceedings
or petitions instituted or presented by Party A or any Affiliate of Party
A;
provided
further
that clause (6) shall not apply to Party B to the extent that it refers to
(i)
any appointment that is contemplated or effected by the Pooling and Servicing
Agreement (as defined below) or (ii) any appointment to which Party B has
not
become subject; and provided
further
that clause (8) shall not apply to Party B to the extent that clause (8)
relates
to clauses (2), (4), (6) and (7) (except to the extent that such provisions
are
not disapplied to Party B).
Section
5(a)(viii) (Merger
without Assumption)
will
apply to Party A and Party B.
Notwithstanding
Sections 5(a)(i) and 5(a)(iii) of this Agreement, 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 Document shall not be an Event of Default unless
(A)
(i) the Xxxxx’x
Second
Rating Trigger Requirements
apply and at
least 30 Local Business Days have elapsed since the last time the Xxxxx’x
Second
Rating Trigger Requirements did not apply and (ii) such
failure is not remedied on or before the third Local Business Day after notice
of such failure is given to Party A,
(B) (i) a Ratings Event has occurred and is continuing and at least 30 calendar
days have elapsed since the date a Ratings Event occurred and (ii) such failure
is not remedied on or before the third Local Business Day after notice of
such
failure is given to Party A, or (C) (i) the S&P Rating Second Trigger
Requirements apply and at least 10 Local Business Days have elapsed since
the
last time the S&P Rating Second Trigger Requirements applied and (ii) such
failure is not remedied on or before the third Local Business Day after notice
of such failure is given to Party A.
(d) Termination
Events.
The
following Termination Events will apply to the parties as specified
below:
Section
5(b)(i) (Illegality)
will
apply to Party A and Party B.
Section
5(b)(ii) (Tax
Event)
will
apply to Party A and Party B; provided
that
Section
5(b)(ii) shall be amended by deleting 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).”
2
Section
5(b)(iii) (Tax
Event upon Merger)
will
apply to Party A and 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.
Section
5(b)(iv) (Credit
Event upon Merger)
will
not apply to Party A or Party B.
(e)
|
The
“Automatic
Early Termination”
provision of Section 6(a) of this Agreement will not apply to Party
A or
Party B.
|
(f)
|
The
“Transfer
to Avoid Termination Event”
provision of Section 6(b)(ii) shall be amended
by deleting the
words “or if a Tax Event upon Merger occurs and the Burdened Party is
the
Affected Party.”
|
(g)
|
Payments
on Early Termination.
For the purpose of Section 6(e) of this
Agreement:
|
(i) Market
Quotation will apply.
(ii) The
Second Method will apply.
(h)
|
“Termination
Currency” means United States
Dollars.
|
(i)
|
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).
|
(j)
|
Additional
Termination Events.
The following Additional Termination Events will apply, in each
case with
respect to Party A as the sole Affected Party (unless otherwise
provided
below):
|
(i) Xxxxx’x
First Rating Trigger Collateral.
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 Document and either
(A) the Xxxxx’x Second Rating Trigger Requirements do not apply or (B) less than
30 Local Business Days have elapsed since
the last time the Xxxxx’x
Second
Rating Trigger Requirements (as defined below) did not
apply.
(ii) Xxxxx’x
Second Rating Trigger Replacement.
(A) The
Xxxxx’x Second Rating Trigger Requirements apply and 30 or more Local Business
Days have elapsed since the last time the Xxxxx’x Second Rating Trigger
Requirements did not apply and (B) (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(f)(ii) below and/or (ii) at least one entity with 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) to provide an Eligible Guarantee in respect of
all of
Party A’s present and future obligations under this Agreement.
3
The
“Xxxxx’x
Second Rating Trigger Requirements”
applies
when no Relevant Entity has credit ratings at least equal to the Xxxxx’x Second
Trigger Required Ratings.
“Firm
Offer”
means an
offer which, when made, was capable of becoming legally binding upon
acceptance.
(iii) S&P
Rating Trigger Collateral.
(A) The
S&P Rating First Trigger Requirements apply and more than 10 Local Business
Days have elapsed since the last time the S&P Rating First Trigger
Requirements did not apply and (B) Party A fails to comply with or perform
any
obligation to be complied with or performed by Party A in accordance with
the
Credit Support Document.
(iv) S&P
Rating Trigger Replacement.
The
S&P Rating Second Trigger Requirements apply and 60 or more calendar days
have elapsed since the last time the S&P Rating Second Trigger Requirements
did not apply.
(v)
Ratings Event.
Party A
fails to comply with the downgrade provisions as set forth in Part 5(b)(iv),
after giving effect to the relevant grace or cure periods therein, and (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(f)(ii) below and/or (ii) at least one entity
with the Hedge Counterparty Ratings Requirement has made a Firm Offer (which
remains capable of becoming legally binding upon acceptance by the offeree)
to
provide an Eligible Guarantee in respect of all of Party A’s present and future
obligations under this Agreement.
(k)
|
The
following Additional Termination Events will apply, in each case
with
respect to Party B as the sole Affected Party (unless otherwise
provided
below):
|
(i) Party
B
or the Trust Fund (as defined in the Pooling and Servicing Agreement, dated
as
of September 1, 2007, among Greenwich Capital Acceptance, Inc., as
depositor, Greenwich Capital Financial Products, Inc., as seller Xxxxx Fargo
Bank, N.A., as master servicer and as securities administrator (in such
capacity, the “Securities
Administrator”),
Xxxxxxx Fixed Income Services Inc., as credit risk manager and Deutsche Bank
National Trust Company, as trustee and a custodian (the “Pooling
and Servicing Agreement”))
is
terminated.
(ii) The
Pooling and Servicing Agreement is amended or modified without the prior
written
consent of Party A where such consent is required under the terms of the
Pooling
and Servicing Agreement, or such amendment; provided,
however,
that it
shall not be an Additional Termination Event where such amendment or
modification involves the appointment of any successor trustee, securities
administrator, master servicer or servicer pursuant to the terms of the Pooling
and Servicing Agreement.
(iii) The
Class
Principal Amounts of the rated Certificates are reduced to zero.
(iv) Notice
of
the Master Servicer’s or the NIMS Insurer’s (as such term is defined in the
Pooling and Servicing Agreement) intention to exercise its option to purchase
the Mortgage Loans pursuant to Section 10.01(a) of the Pooling and Servicing
Agreement is given by the Trustee to Certificateholders pursuant to Section
10.01(b) of the Pooling and Servicing Agreement, provided
that the
Early Termination Date may not be earlier than the date on which the
Certificates are redeemed pursuant to Section 10.01(b) of the Pooling and
Servicing Agreement.
4
Notwithstanding
anything in Section 6 of this
Agreement to the contrary, any amounts due as result of the occurrence of
an
Additional Termination Event described in Part 1(k)(i) and Part 1(k)(iv) of
this Schedule may be calculated prior to the Early Termination Date and shall
be
payable on the Early Termination Date.
5
Part
2
Representations.
(a)
|
Payer
Tax Representations.
For the purpose of Section 3(e) of this Agreement, Party A and
Party B
will make the following representations:
None.
|
(b)
|
Gross
Up.
Section 2(d)(i)(4) shall not apply to Party B as X, and Section
2(d)(ii)
shall not apply to Party B as Y, in each case such that Party B
shall not
be required to pay any additional amounts referred to
therein.
|
(c)
|
Indemnifiable
Tax.
The definition of “Indemnifiable Tax” in Section 14 is deleted in its
entirety and replaced with the
following:
|
“Indemnifiable
Tax”
means,
in relation to payments by Party A, any Tax and, in relation to payments
by
Party B, no Tax.
(d)
|
Payee
Representations.
For the purpose of Section 3(f) of this Agreement, Party A and
Party B
make the representations specified below, if
any:
|
(i) Party
A
makes the following representation(s):
Party
A represents that is a corporation organized under the laws of the State
of
Delaware.
(ii) Party
B
makes the following representation(s):
None.
6
Part
3
Agreement
to Deliver Documents.
For
the
purpose of Sections 4(a)(i) and (ii) of this Agreement, each party agrees
to
deliver the following documents, as applicable:
(a)
|
Tax
forms, documents or certificates to be delivered
are:—
|
Party
required to
deliver
document
|
Form/Document/Certificate
|
Date
by which to be delivered
|
||
Party
A and Party B
|
Subject
to Section 4(a)(iii), any document required or reasonably requested
to
allow the other party to make payments under this Agreement without
any
deduction or withholding on account of any Tax.
|
(i)
promptly upon reasonable demand by Party B and (ii) promptly upon
learning
that any such Form previously provided by Party A has become obsolete
or
incorrect.
|
(b)
|
Other
documents to be delivered are:—
|
Party
required to
deliver
document
|
Form/Document/Certificate
|
Date
by which to be
delivered
|
Covered
by §3(d)
Representation
|
|||
Party
B
|
Certified
copy of the Board of Directors resolution (or equivalent authorizing
documentation) which sets forth the authority of each signatory
to this
Agreement and each Credit Support Document (if any) signing on
its behalf
and the authority of such party to enter into Transactions contemplated
and performance of its obligations hereunder.
|
Concurrently
with the execution and delivery of this Agreement.
|
Yes
|
|||
Party
A and Party B
|
Incumbency
Certificate (or, if available the current authorized signature
book or
equivalent authorizing documentation) specifying the names, titles,
authority and specimen signatures of the persons authorized to
execute
this Agreement which sets forth the specimen signatures of each
signatory
to this Agreement, each Confirmation and each Credit Support Document
(if
any) signing on its behalf.
|
Concurrently
with the execution and delivery of this Agreement unless previously
delivered and still in full force and effect.
|
Yes
|
|||
Party
A
|
An
executed copy of the Disclosure Agreement relating to the Prospectus
Supplement (as defined in the Pooling and Servicing
Agreement).
|
On
the date of such Prospectus Supplement.
|
Yes
|
7
Party
required to
deliver
document
|
Form/Document/Certificate
|
Date
by which to be
delivered
|
Covered
by §3(d)
Representation
|
|||
Party
A and B
|
An
executed copy of the Disclosure Agreement relating to the Prospectus
Supplement (as defined in the Pooling and Servicing
Agreement).
|
On
the date of such Prospectus Supplement.
|
Yes
|
|||
Party
A and B
|
An
opinion of counsel to such party reasonably satisfactory in form
and
substance to the other party, and, in the case of Party B, opinions
of
counsel relating to the Pooling and Servicing Agreement and other
deal
documents reasonably satisfactory in form and substance to Party
A.
|
Concurrently
with the execution and delivery of the Confirmation unless previously
delivered and still in full force and effect.
|
No
|
|||
Party
A
|
A
copy of the guaranty provided by the Credit Support Provider, if
applicable.
|
Concurrently
with the execution and delivery of the Confirmation unless previously
delivered and still in full force and effect.
|
Yes
|
|||
Party
A
|
An
opinion of counsel to such party relating to the enforceability
of the
guaranty reasonably satisfactory in form and substance to Party
B, if
applicable.
|
Concurrently
with the execution and delivery of the Confirmation unless previously
delivered and still in full force and effect.
|
No
|
|||
Party
B
|
An
executed copy of the Pooling and Servicing Agreement and other
deal
documents related to this Transaction.
|
Within
30 days after the date of this Agreement.
|
No
|
|||
Party
B
|
Each
material amendment, supplement or waiver of the Pooling and Servicing
Agreement, as proposed from time to time, or any other amendment
or
modification of the Pooling and Servicing Agreement that requires
the
written consent of Party A under the terms of the Pooling and Servicing
Agreement.
|
Promptly
upon learning of any proposed amendment, supplement or
waiver.
|
No
|
8
Part
4.
Miscellaneous.
(a)
|
Addresses
for Notices.
For the purposes of Section 12(a) of this
Agreement:
|
(i) Addresses
for notices or communications to Party A: -
Swiss
Re Financial Products Corporation
00
Xxxx 00xx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Head of Operations
Facsimile
No. (000) 000-0000
(For
all purposes)
With
a copy to:
Swiss
Re Financial Products Corporation
00
Xxxx 00xx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Legal Department
Facsimile
No.: (000) 000-0000
(ii) Addresses
for notices or communications to Party B:
Xxxxx
Fargo Bank, National Association
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Client Manager, HarborView Mortgage Loan Trust 2007-7
Telephone
No.: (000) 000-0000
Facsimile
No.: (000) 000-0000
(b)
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Process
Agent.
For the purposes of Section 13(c) of this
Agreement:
|
Party
A appoints as its Process Agent: Not applicable
Party
B
appoints as its Process Agent: Not applicable.
(c)
|
Offices.
The provisions of Section 10(a) will not apply to this
Agreement.
|
(d)
|
Multibranch
Party.
For the purpose of Section 10(c) of this
Agreement:
|
Party
A is not a Multibranch Party.
Party
B
is not a Multibranch Party.
(e)
|
Calculation
Agent.
The Calculation Agent is Party A.
|
(f)
|
Credit
Support Document.
Credit Support Document means the credit support annex entered
into
between Party A and Party B in relation to this Agreement, and
with
respect to Party A, any Eligible Guarantee, if applicable.
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9
(g)
|
Credit
Support Provider.
Credit Support Provider means in relation to Party A, (1) Party
A in its
capacity as a party to the Credit Support Annex and (2) the guarantor
under any Eligible Guarantee, and in relation to Party B, none
(not
applicable).
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(h)
|
(i)
|
Netting
of Payments.
Subparagraph (ii) of Section 2(c) of this Agreement will apply
to all
Transactions (in each case starting from the date of this
Agreement).
|
(j)
|
“Affiliate”
will have the meaning specified in Section 14 of this Agreement,
provided
that Party B shall be deemed to have no
Affiliates.
|
(k)
|
Jurisdiction.
Section 13(b) is hereby amended by: (i) deleting in the second
line of
subparagraph (i) thereof the word “non-”: and (ii) deleting the final
paragraph thereof.
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(l)
|
Waiver
of Jury Trial.
Each party waives, to the fullest extent permitted by applicable
law, any
right it may have to a trial by jury in respect of any suit, action
or
proceeding relating to this Agreement or any Credit Support Document.
Each
party certifies (i) that no representative, agent or attorney of
the other
party or any Credit Support Provider has represented, expressly
or
otherwise, that such other party would not, in the event of such
a suit,
action or proceeding, seek to enforce the foregoing waiver and
(ii)
acknowledges that it and the other party have been induced to enter
into
this Agreement and provide for any Credit Support Document, as
applicable,
by, among other things, the mutual waivers and certifications in
this
Section.
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(m)
|
Consent
to Recording.
Each party consents to the recording of the telephone conversations
of
trading and marketing personnel of the parties and their Affiliates
in
connection with this Agreement or any potential
transaction.
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(n)
|
Severability.
If any term, provision, covenant, or condition of this Agreement,
or the
application thereof to any party or circumstance, shall be held
to be
illegal, invalid or unenforceable (in whole or in part) for any
reason,
the remaining terms, provisions, covenants and conditions hereof
shall
continue in full force and effect as if this Agreement had been
executed
with the illegal, invalid or unenforceable portion eliminated,
so long as
this Agreement as so modified continues to express, without material
change, the original intentions of the parties as to the subject
matter of
this Agreement and the deletion of such portion of this Agreement
will not
substantially impair the respective benefits or expectations of
the
parties to this Agreement.
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(o)
|
Single
Agreement.
Section 1(c) shall be amended by adding the words “, the credit support
annex entered into between Party A and Party B in relation to this
Agreement” after the words “Master Agreement;” provided,
that Section 5(a)(ii) shall not apply to the Credit Support
Document.
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(p)
|
Local
Business Day.
The definition of Local Business Day in Section 14 of this Agreement
shall
be 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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10
Part
5.
Other
Provisions.
(a) Definitions.
This
Agreement, including each Confirmation and each Swap Transaction, is subject
to
the 2000 ISDA Definitions, as amended, supplemented, updated, and superseded
from time to time (the “Definitions”), as published by the International Swaps
and Derivatives Association, Inc. (“ISDA”) and will be governed in all respects
by the Definitions (except that references to “Swap Transactions” shall be
deemed to be references to “Transactions”). The Definitions are incorporated by
reference in, and made part of, this Agreement and each Confirmation as if
set
forth in full in this Agreement and such Confirmations. In the event of any
inconsistency between the provisions of this Agreement and the Definitions,
this
Agreement will prevail (and, in the event of any inconsistency between any
Confirmation and the Definitions, the Confirmation will control). Any reference
in a Confirmation to any Definitions which are amended or supplemented in
this
Schedule shall be deemed to be a reference to such Definitions as so amended
or
supplemented, unless the Confirmation states, by specific reference to any
such
amendment or supplement, that such amendment or supplement will not apply
in
respect of the Transaction to which such Confirmation relates.
In the
event of an inconsistency between the provisions of this Agreement and the
Pooling and Servicing Agreement, this Agreement will prevail.
(b) Downgrade
Provisions.
(i) Moody’s
Second Trigger Failure Condition.
So long
as the Moody’s Second Rating Trigger Requirements apply, Party A shall, at
its own expense use commercially reasonable efforts, as soon as reasonably
practicable, to either (i) furnish an Eligible Guarantee of Party A’s
obligations under this Agreement from a guarantor that maintains the Moody’s
First Trigger Required Ratings and/or the Moody’s Second Trigger Required
Ratings or (ii) obtain an Eligible Replacement pursuant to Part 5(f) below
that
assumes the obligations of Party A under this Agreement (through a novation
or other assignment and assumption agreement in form and substance reasonably
satisfactory to Party B) or replaces the outstanding Transactions hereunder
with transactions on identical terms, except that Party A shall be replaced
as counterparty.
(ii)
S&P Trigger Failure Condition.
So long
as the S&P Rating Second Trigger Requirements apply, Party A shall, at its
own expense, use commercially reasonable efforts, as soon as reasonably
practicable, to either (i) upon satisfaction of the Rating Agency Condition,
furnish an Eligible Guarantee of Party A’s obligations under this Agreement from
a guarantor that maintains the S&P Second Trigger Required Ratings or (ii)
obtain an Eligible Replacement pursuant to Part 5(f) below that assumes the
obligations of Party A under this Agreement (through a novation or other
assignment and assumption agreement in form and substance reasonably
satisfactory to Party B) or replaces the outstanding Transactions hereunder
with
transactions on identical terms, except that Party A shall be replaced as
counterparty.
(iii) Collateralization
Event.
It
shall be a collateralization event (“Collateralization Event”) if the unsecured,
long-term senior debt obligations or financial strength ratings of the Relevant
Entity are rated below “A” by Fitch, Inc. (“Fitch”). For the avoidance of doubt,
the parties hereby acknowledge and agree that notwithstanding the occurrence
of
a Collateralization Event, this Agreement and each Transaction hereunder
shall
continue to be a Swap Agreement for purposes of the Pooling and Servicing
Agreement. Within 30 calendar days from the date a Collateralization Event
has
occurred and so long as such Collateralization Event is continuing, Party A
shall, at its sole expense, either (i) post collateral in an amount required
to
be posted pursuant to terms of the Credit Support Annex (such amount which
is
the greater of amounts required to be posted by Xxxxx’x, S&P and Fitch),
(ii)
upon
satisfaction of the Rating Agency Condition (with respect to Fitch), furnish
an
Eligible Guarantee of Party A’s obligations under this Agreement from a
guarantor that satisfies the Hedge Counterparty Ratings Requirement or (iii)
obtain
an
Eligible Replacement that (x) upon satisfaction of the Rating Agency Condition
(with respect to Fitch), assumes the obligations of Party A under this
Agreement (through an assignment and assumption agreement in form and substance
reasonably satisfactory to Party B) or (y) having provided prior written
notice to Fitch, replaces the outstanding Transactions hereunder with
transactions on identical terms, except that Party A shall be replaced as
counterparty; provided
that
such Eligible
Replacement,
as of
the date of such assumption or replacement, will not, as a result thereof,
be
required to withhold or deduct on account of tax under the Agreement or the
new
Transactions, as applicable, and such assumption or replacement will not
lead to
a Termination Event or Event of Default occurring under the Agreement or
new
Transactions, as applicable.
11
(iv)
Ratings Event.
It
shall be a ratings event (“Ratings Event”) if at any time after the date hereof,
the Relevant Entity shall fail to satisfy the Hedge Counterparty Ratings
Threshold. Within 30 calendar days from the date a Ratings Event has occurred
and so long as such Ratings Event is continuing, Party A shall, at its sole
expense, (i) obtain an Eligible Replacement that (x) upon satisfaction of
the
Rating Agency Condition, assumes the obligations of Party A under this
Agreement (through an assignment and assumption agreement in form and substance
reasonably satisfactory to Party B) or (y) having provided prior written
notice to Fitch, replaces the outstanding Transactions hereunder with
transactions on identical terms, except that Party A shall be replaced as
counterparty; provided
that
such Eligible Replacement, as of the date of such assumption or replacement,
will not, as a result thereof, be required to withhold or deduct on account
of
tax under the Agreement or the new Transactions, as applicable, and such
assumption or replacement will not lead to a Termination Event or Event of
Default occurring under the Agreement or new Transactions, as applicable,
or
(ii) upon satisfaction of the Rating Agency Condition (with respect to Fitch),
furnish an Eligible Guarantee of Party A’s obligations under this Agreement from
a guarantor that satisfies the Hedge Counterparty Ratings Requirement
and
(iii)
upon the occurrence of a Ratings Event, Party A shall immediately be required
to
post collateral in an amount required to be posted pursuant to terms of the
Credit Support Document (such amount which is the greater of amounts required
to
be posted by Xxxxx’x, S&P and Fitch).
(v) Downgrade
Definitions.
(A)
|
“Eligible
Counterparty”
means, for purposes of the Credit Support Document, a Relevant
Entity with
the S&P Second Trigger Required
Ratings.
|
(B)
|
“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.
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(C) “Eligible
Replacement”
means a
Transferee (as defined in Part 5(f)(ii) herein) (i) (A) with the Moody’s First
Trigger Required Ratings and/or the Moody’s Second 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 Moody’s First
Trigger Required Ratings and/or the Moody’s Second Trigger Required Ratings,
(ii) with the ratings specified in the definition of Hedge Counterparty Ratings
Requirement below and (iii) with the S&P
Second Trigger Required Ratings.
12
(D) “Financial
Institution”
means a
bank, broker/dealer, structured investment vehicle, insurance company or
derivative product company.
(E)
|
“Ineligible
Counterparty”
means, for purposes of the Credit Support Document, a Relevant
Entity not
having the S&P Second Trigger Required
Ratings.
|
(F) “Hedge
Counterparty Ratings Threshold”
means
either (i) the unsecured, senior debt obligations or financial strength ratings
of Party A (or its Credit Support Provider), are rated at least “BBB+” by
Fitch or (ii) the unsecured, short-term debt obligations (if any) of
Party A , are rated at least “F2” by Fitch. For the avoidance of all
doubts, the parties hereby acknowledge and agree that notwithstanding the
occurrence of a Ratings Event, this Agreement and each Transaction hereunder
shall continue to be a Swap Agreement for purposes of the Pooling and Servicing
Agreement.
(G) “Hedge
Counterparty Ratings Requirement”
means
either (i) the unsecured, long-term senior debt obligations of such substitute
counterparty (or its Credit Support Provider) are rated at least “A” by Fitch or
(ii) the unsecured, short-term debt obligations of such substitute counterparty
(or its Credit Support Provider) are rated at least “F1” by Fitch. For the
purpose of this definition, no direct or indirect recourse against one or
more
shareholders of the substitute counterparty (or against any Person in control
of, or controlled by, or under common control with, any such shareholder)
shall
be deemed to constitute a guarantee, security or support of the obligations
of
the substitute counterparty.
(H) “Moody’s”
means
Xxxxx'x Investors Service, Inc.
(I) “Moody’s
First Trigger Required Ratings”
means
with respect to an entity, either (i) where the entity is the subject of
a
Moody’s Short-term Rating, such entity’s Moody’s Short-term Rating is “Prime-1”
and the entity’s long-term, unsecured and unsubordinated debt or counterparty
obligations are rated “A2” or above by Moody’s or (ii) where the entity is not
the subject of a Moody’s Short-term Rating, its long-term, unsecured and
unsubordinated debt or counterparty obligations are rated “A1” or above by
Moody’s.
(J) “Moody’s
Short-term Rating”
means a
rating assigned by Moody’s under its short-term rating scale in respect of an
entity’s short-term, unsecured and unsubordinated debt obligations.
(K) A
“Moody’s
Second Trigger Failure Condition”
occurs
at any time no Relevant Entity maintains the Moody’s Second Trigger Required
Ratings.
(L) “Moody’s
Second Trigger Required Ratings”
means
with respect to an entity (A) either where the entity is the subject of a
Moody’s Short-term Rating, such entity’s Moody’s Short-term Rating is “Prime-2”
or above and its long-term, unsecured and unsubordinated debt or counterparty
obligations are rated “A3” or above by Moody’s, and (B) where such entity is not
the subject of a Moody’s Short-term Rating, if the entity’s long-term, unsecured
and unsubordinated debt or counterparty obligations are rated “A3” or above by
Moody’s.
13
(M) “Rating
Agency Condition”
shall
mean first receiving prior written confirmation from S&P and Fitch, as
applicable, that their then-current ratings of the rated Certificates will
not
be downgraded or withdrawn by such Rating Agency.
(N) “S&P”
means
Standard & Poor’s Rating Services, a division of The XxXxxx-Xxxx Companies,
Inc.
(O) “S&P
FI Relevant Entity”
means a
Relevant Entity that meets the definition of Financial Institution
herein.
(P) “S&P
First Trigger Required Ratings”
means
either (i) the unsecured, short-term debt obligations of the Relevant Entity
are
rated at least “A-1” by S&P or (ii) if the Relevant Entity does not have a
short-term rating from S&P, the unsecured, long-term senior debt obligations
of such entity are rated at least “A+” by S&P.
(Q) “S&P
Non-FI Relevant Entity”
means a
Relevant Entity that does not meet the definition of Financial Institution
herein.
(R) The
“S&P
Rating First Trigger Requirements”
applies
when no Relevant Entity has credit ratings at least equal to the S&P First
Trigger Required Ratings.
(S) The
“S&P
Rating Second Trigger Requirements”
applies
when no Relevant Entity has credit ratings at least equal to the S&P Second
Trigger Required Ratings.
(T) “S&P
Second Trigger Required Ratings”
means
(A) with respect to an S&P Non-FI Relevant Entity, either (i) the unsecured,
short-term debt obligations of the S&P Non-FI Relevant Entity are rated at
least “A-1” by S&P or (ii) if the S&P Non-FI Relevant Entity does not
have a short-term rating from S&P, the unsecured, long-term senior debt
obligations of such entity are rated at least “A+” by S&P or (B) with
respect to an S&P FI Relevant Entity, either (i) the unsecured, short-term
debt obligations of the S&P FI Relevant Entity are rated at least “A-2” by
S&P or (ii) if the S&P FI Relevant Entity does not have a short-term
rating from S&P, the unsecured, long-term senior debt obligations of such
entity are rated at least “BBB+” by S&P.
(U) An
“S&P
Trigger Failure Condition”
occurs
at any time no Relevant Entity maintains the S&P Second Trigger Required
Ratings.
(c) Additional
Representations.
Section
3(a) of this Agreement is hereby amended to include the following additional
representations after paragraph 3(a)(v):
(i) Eligible
Contract Participant.
It is
an “eligible contract participant” as defined in the U.S. Commodity Exchange
Act.
(ii) Individual
Negotiation.
This
Agreement and each Transaction hereunder is subject to individual negotiation
by
the parties.
(iii) Relationship
between Party A and Party B.
Each of
Party A and Party B will be deemed to represent to the other on the date
on
which it enters into a Transaction or an amendment thereof that (absent a
written agreement between Party A and Party B that expressly imposes affirmative
obligations to the contrary for that Transaction):
14
(A) Principal.
Party A
is acting as principal and not as agent when entering into this Agreement
and
each Transaction. Party B is acting not in its individual capacity but solely
as
Securities Administrator on behalf of the Trust.
(B) Non-Reliance.
Party A
is acting for its own account and it has made its own independent decisions
to
enter into that Transaction and as to whether that Transaction is appropriate
or
proper for it based upon its own judgment and upon advice from such advisors
as
it has deemed necessary. Party B is acting not in its individual capacity
but
solely as Securities Administrator on behalf of the Trust. It is not relying
on
any communication (written or oral) of the other party as investment advice
or
as a recommendation to enter into that Transaction; it being understood that
information and explanations related to the terms and conditions of a
Transaction shall not be considered investment advice or a recommendation
to
enter into that Transaction. No communication (written or oral) received
from
the other party shall be deemed to be an assurance or guarantee as to the
expected results of that Transaction.
(C) Evaluation
and Understanding.
It is
capable of evaluating and understanding (on its own behalf or through
independent professional advice), and understands and accepts, the terms,
conditions and risks of this Agreement and each Transaction hereunder. It
is
also capable of assuming, and assumes, all financial and other risks of this
Agreement and each Transaction hereunder.
(D) Status
of Parties.
The
other party is not acting as a fiduciary or an advisor for it in respect
of that
Transaction.
(d)
|
Section
4 is hereby amended by adding the following new agreement:
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Actions
Affecting Representations.
Party B
agrees not to take any action during the term of this Agreement or any
Transaction hereunder that renders or could render any of the representations
and warranties in this Agreement untrue, incorrect, or incomplete, and if
any
event or condition occurs that renders or could render any such representation
untrue, incorrect, or incomplete, Party B will immediately give written notice
thereof to Party A.
(e)
|
Section
1(c).
For purposes of Section 1(c) of the Agreement, each of the Transaction
evidenced by Confirmation with Reference ID: 1935647, dated October
2,
2007, between Party A and Party B, as amended from time to time,
shall be
the sole Transaction under the
Agreement.
|
(f) Transfer.
(i) Section
7
of this Agreement shall not apply to Party A and, subject to Section 6(b)(ii)
(provided that to the extent Party A makes a transfer pursuant to Section
6(b)(ii) it will provide a prior written notice to the Rating Agencies of
such
transfer) and Part 5(f)(ii) below, Party A may not transfer (whether by way
of
security or otherwise) any interest or obligation in or under this Agreement
without first satisfying the Rating Agency Condition and without the prior
written consent of Party B.
(ii) Subject
to Part 5(o) below, Party A may (at its own cost and using commercially
reasonable efforts) 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 through a novation or other assignment and assumption
agreement or similar agreement in form and substance reasonably satisfactory
to
Party B; provided that (A) 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, (B) as of the date of such transfer the Transferee will not be
required to withhold or deduct on account of a Tax from any payments under
this
Agreement unless the Transferee will be required to make payments of additional
amounts pursuant to Section 2(d)(i)(4) of this Agreement in respect of such
Tax,
(C) a Termination Event or Event of Default does not occur under this Agreement
as a result of such transfer and (D) Party A receives confirmation from each
Rating Agency (other than Moody’s) that transfer to the Transferee does not
violate the Rating Agency Condition. Following such transfer, all references
to
Party A shall be deemed to be references to the Transferee.
15
(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 Part 5(f)(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.
(iv) Except
as
specified otherwise in the documentation evidencing a transfer, a transfer
of
all the obligations of Party A made in compliance with this Part 5(f) will
constitute an acceptance and assumption of such obligations (and any related
interests so transferred) by the Transferee, a novation of the transferee
in
place of Party A with respect to such obligations (and any related interests
so
transferred), and a release and discharge by Party B of Party A from, and
an
agreement by Party B not to make any claim for payment, liability, or otherwise
against Party A with respect to, such obligations from and after the effective
date of the transfer.
(g)
|
Limited
Capacity. It
is expressly understood and agreed by the parties hereto that (i)
this
Agreement is executed and delivered by Xxxxx Fargo Bank, N.A.,
not
individually or personally but solely as Securities Administrator
of the
Trust, in the exercise of the powers and authority conferred and
vested in
it, (ii) each of the representations, undertakings and agreements
herein
made on the part of the Trust is made and intended not as personal
representations, undertakings and agreements by Xxxxx Fargo Bank,
N.A.,
but is made and intended for the purpose of binding only the Trust,
(iii)
nothing herein contained shall be construed as creating any liability
on
the part of Xxxxx Fargo Bank, N.A., individually
or personally, to perform any covenant either expressed or implied
contained herein, all such liability, if any, being expressly waived
by
the parties hereto and by any Person claiming by, through or under
the
parties hereto and (iv) under no circumstances shall Xxxxx Fargo
Bank,
N.A., be personally liable for the payment of any indebtedness
or expenses
of the Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the
Trust under
this Agreement.
|
(h)
|
Proceedings.
Without impairing any right afforded to it under the Pooling and
Servicing
Agreement as a third party beneficiary, Party A shall not institute
against or cause any other person to institute against, or join
any other
person in instituting against Trust Fund any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings
under any federal or state bankruptcy, dissolution or similar law,
for a
period of one year and one day following indefeasible payment in
full of
the Certificates.
Nothing shall preclude, or be deemed to stop, Party A (i) from
taking any
action prior to the expiration of the aforementioned one year and
one day
period, or if longer the applicable preference period then in effect,
in
(A) any case or proceeding voluntarily filed or commenced by Party
B or
(B) any involuntary insolvency proceeding filed or commenced by
a Person
other than Party A, or (ii) from commencing against Party B or
any of the
Collateral any legal action which is not a bankruptcy, reorganization,
arrangement, insolvency, moratorium, liquidation or similar
proceeding.
|
(i)
|
[Reserved]
|
16
(j)
|
Change
of Account.
Section 2(b) of this Agreement is hereby amended by the addition
of the
words “to another account in the same legal and tax jurisdiction as the
original account” following the word “delivery” in the first line
thereof.
|
(k)
|
Pooling
and Servicing Agreement.
|
(i)
Capitalized terms used in this Agreement that are not defined herein and
are
defined in the Pooling and Servicing Agreement shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
(ii) Party
B
will provide at least ten days’ prior written notice to Party A of any proposed
amendment or modification to the Pooling and Servicing Agreement.
(l)
|
No
Set-off.
|
(i)
All
payments under this Agreement shall be made without set-off or counterclaim,
except as expressly provided for in Section 2(c), Section 6 or Part 5(q)(vi)
below and paragraphs 8(a) and 8(b) of the Credit Support Document.
(ii) Section
6(e) shall be amended by the deletion of 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.”
(m)
|
Notice
of Certain Events or Circumstances.
Each party agrees, upon learning of the occurrence or existence
of any
event or condition that constitutes (or that with the giving of
notice or
passage of time or both would constitute) an Event of Default or
Termination Event with respect to such party, promptly to give
the other
party notice of such event or condition (or, in lieu of giving
notice of
such event or condition in the case of an event or condition that
with the
giving of notice or passage of time or both would constitute an
Event of
Default or Termination Event with respect to the party, to cause
such
event or condition to cease to exist before becoming an Event of
Default
or Termination Event); provided that failure to provide notice
of such
event or condition pursuant to this Part 5(m) shall not constitute
an
Event of Default or a Termination Event. Each party agrees to provide
to
the other party any other notice reasonably expected to be provided
to
facilitate compliance with the terms of this Agreement and the
Credit
Support Document.
|
(n)
|
Regarding
Party A. Party
B acknowledges and agrees that Party A has had and will have no
involvement in and, accordingly Party A accepts no responsibility
for: (i)
the establishment, structure, or choice of assets of Party B; (ii)
the
selection of any person performing services for or acting on behalf
of
Party B; (iii) the selection of Party A as the Counterparty; (iv)
the
terms of the Certificates; (v) other than as provided in the Disclosure
Agreements, the preparation of or passing on the disclosure and
other
information contained in any offering circular or offering document
for
the Certificates, the Pooling and Servicing Agreement, or any other
agreements or documents used by Party B or any other party in connection
with the marketing and sale of the Certificates; (vi) the ongoing
operations and administration of Party B, including the furnishing
of any
information to Party B which is not specifically required under
this
Agreement or the Disclosure Agreements; or (vii) any other aspect
of Party
B’s existence.
|
(o)
|
Amendments.
This Agreement will not be amended unless the Rating Agency Condition
is
satisfied. 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 unless each Rating Agency has been given prior written
notice of such amendment, designation or
transfer.
|
17
(p)
|
Non-Petition
and Limited Recourse.
The liability of Party B under this Agreement is limited in recourse
to
the assets of the Trust Fund, and to distributions of interest
proceeds
and principal proceeds thereon applied in accordance with the terms
of the
Pooling and Servicing Agreement. Upon application of and exhaustion
of all
of the assets of the Trust Fund (and proceeds thereof) in accordance
with
the Pooling and Servicing Agreement, Party A shall not be entitled
to take
any further steps against Party B to recover any sums due but still
unpaid
hereunder or thereunder, all claims in respect of which shall be
extinguished. Notwithstanding the foregoing or anything herein
to the
contrary, Party A shall not be precluded from declaring an Event
of
Default or from exercising any other right or remedy as set forth
in this
Agreement or the Pooling and Servicing
Agreement.
|
(q)
|
Calculations.
Notwithstanding Section 6 of this Agreement, so long as Party A
is (A) the
sole Affected Party in respect of an Additional Termination Event
or a Tax
Event Upon Merger or (B) the Defaulting Party in respect of any
Event of
Default, paragraphs (i) to (vi) below shall apply:
|
(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).
(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)
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 so as to become
legally binding; provided that:
(A) If,
on
the day falling ten Local Business Days after the day on which the Early
Termination Date is designated or such later day as Party B may specify in
writing to Party A (but in either case no later than the Early Termination
Date)
(such day the “Latest Settlement Amount Determination Day”), no Market Quotation
for the relevant Terminated Transaction or group of Terminated Transactions
has
been accepted by Party B so as to become legally binding and one or more
Market
Quotations have been made and remain capable of becoming legally binding
upon
acceptance, the Settlement Amount shall equal the Termination Currency
Equivalent of the amount (whether positive or negative) of the lowest of
such
Market Quotations (for the avoidance of doubt, the lowest negative number
shall
equal the largest absolute value such that, for example, negative 3 shall
be
lower than negative 2); or
18
(B) If,
on
the Latest Settlement Amount Determination Day, 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
made and remain capable of becoming legally binding upon acceptance, the
Settlement Amount shall equal Party B’s Loss (whether positive or negative and
without reference to any Unpaid amounts) for the relevant Terminated Transaction
or group of Terminated Transactions.
(iii) For
the
purpose of clause (4) of the definition of Market Quotation, Party B shall
determine in its sole discretion, 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); provided,
however,
that
notwithstanding the provisions of this Part 5(q), nothing in this Agreement
shall preclude Party A from obtaining Market Quotations.
(iv) At
any
time on or before the Latest Settlement Amount Determination Day at which
two or
more Market Quotations remain capable of becoming legally binding upon
acceptance, Party B shall be entitled to accept only the lowest of such Market
Quotations.
(v) If
Party
B requests Party A in writing to obtain Market Quotations, Party A shall
use its
reasonable efforts to do so before the Latest Settlement Amount Determination
Day.
(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).
[Signature
page follows]
19
IN
WITNESS WHEREOF,
the
parties have executed this document by their duly authorized officers with
effect from the date specified on the first page hereof.
SWISS
RE FINANCIAL PRODUCTS CORPORATION
|
XXXXX
FARGO BANK, N.A., solely in its capacity as Securities Administrator
on
behalf of the Trust with respect to HarborView Mortgage Loan Trust
Mortgage Loan Pass-Through Certificates, Series
2007-7
|
By:
/s/
Xxxxxx Xxxxxx
Name:
Xxxxxx Xxxxxx
Title:
Director
|
By:
/s/
Xxxxxx X. Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President
|
EXECUTION
(Bilateral
Form) (ISDA
Agreements
Subject to New York Law Only)
ISDA®
International
Swaps and Derivatives Association, Inc.
CREDIT
SUPPORT ANNEX
to
the
Schedule to the Master Agreement
dated
as of
October
2, 2007
between
SWISS
RE FINANCIAL PRODUCTS CORPORATION
|
and
|
XXXXX
FARGO BANK, N.A., solely in its capacity as Securities Administrator
on
behalf of the Trust with respect to HarborView Mortgage Loan Trust
Mortgage Loan Pass-Through Certificates, Series
2007-7
|
_______________________________________
(“Party
A”)
|
_________________________________________
(“Party
B”)
|
This
Annex supplements, forms part of, and is subject to, the above-referenced
Agreement, is part of its Schedule and is a Credit Support Document under
this
Agreement with respect to each party.
Accordingly,
the parties agree as follows:
(a) Interpretation
(i) Definitions
and Inconsistency.
Capitalized terms not otherwise defined herein or elsewhere in this Agreement
have the meanings specified pursuant to Paragraph 12, and all references
in this
Annex to Paragraphs are to Paragraphs of this Annex. In the event of any
inconsistency between this Annex and the other provisions of this Schedule,
this
Annex will prevail, and in the event of any inconsistency between Paragraph
13
and the other provisions of this Annex, Paragraph 13 will prevail.
(ii) Secured
Party and Pledgor.
All
references in this Annex to the “Secured Party” will be to either party when
acting in that capacity and all corresponding references to the “Pledgor” will
be to the other party when acting in that capacity; provided, however, that
if
Other Posted Support is held by a party to this Annex, all references herein
to
that party as the Secured Party with respect to that Other Posted Support
will
be to that party as the beneficiary thereof and will not subject that support
or
that party as the beneficiary thereof to provisions of law generally relating
to
security interests and secured parties.
11
(b) Security
Interest
Each
party, as the Pledgor, hereby pledges to the other party, as the Secured
Party,
as security for its Obligations, and grants to the Secured Party a first
priority continuing security interest in, lien on and right of Set-off against
all Posted Collateral Transferred to or received by the Secured Party hereunder.
Upon the Transfer by the Secured Party to the Pledgor of Posted Collateral,
the
security interest and lien granted hereunder on that Posted Collateral will
be
released immediately and, to the extent possible, without any further action
by
either party.
(c) Credit
Support Obligations
(i) Delivery
Amount.
Subject
to Paragraphs 4 and 5, upon a demand made by the Secured Party on or promptly
following a Valuation Date, if the Delivery Amount for that Valuation Date
equals or exceeds the Pledgor’s Minimum Transfer Amount, then the Pledgor will
Transfer to the Secured Party Eligible Credit Support having a Value as of
the
date of Transfer at least equal to the applicable Delivery Amount (rounded
pursuant to Paragraph 13). Unless otherwise specified in Paragraph 13, the
“Delivery
Amount”
applicable to the Pledgor for any Valuation Date will equal the amount by
which:
(A) the
Credit Support Amount
exceeds
(B) the
Value
as of that Valuation Date of all Posted Credit Support held by the Secured
Party.
(ii) Return
Amount.
Subject
to Paragraphs 4 and 5, upon a demand made by the Pledgor on or promptly
following a Valuation Date, if the Return Amount for that Valuation Date
equals
or exceeds the Secured Party’s Minimum Transfer Amount, then the Secured Party
will Transfer to the Pledgor Posted Credit Support specified by the Pledgor
in
that demand having a Value as of the date of Transfer as close as practicable
to
the applicable Return Amount (rounded pursuant to Paragraph 13). Unless
otherwise specified in Paragraph 13, the “Return
Amount”
applicable to the Secured Party for any Valuation Date will equal the amount
by
which:
(A) the
Value
as of that Valuation Date of all Posted Credit Support held by the Secured
Party
exceeds
(B) the
Credit Support Amount.
“Credit
Support Amount”
means,
unless otherwise specified in Paragraph 13, for any Valuation Date (i) the
Secured Party’s Exposure for that Valuation Date plus (ii) the aggregate of all
Independent Amounts applicable to the Pledgor, if any, minus (iii) all
Independent Amounts applicable to the Secured Party, if any, minus (iv) the
Pledgor’s Threshold; provided, however, that the Credit Support Amount will be
deemed to be zero whenever the calculation of Credit Support Amount yields
a
number less than zero.
12
(d) Conditions
Precedent, Transfer Timing, Calculations and Substitutions
(i) Conditions
Precedent.
Each
Transfer obligation of the Pledgor under Paragraphs 3 and 5 and of the Secured
Party under Paragraphs 3, 4(d)(ii), 5 and 6(d) is subject to the conditions
precedent that:
(A) no
Event
of Default, Potential Event of Default or Specified Condition has occurred
and
is continuing with respect to the other party; and
(B) no
Early
Termination Date for which any unsatisfied payment obligations exist has
occurred or been designated as the result of an Event of Default or Specified
Condition with respect to the other party.
(ii) Transfer
Timing.
Subject
to Paragraphs 4(a) and 5 and unless otherwise specified, if a demand for
the
Transfer of Eligible Credit Support or Posted Credit Support is made by the
Notification Time, then the relevant Transfer will be made not later than
the
close of business on the next Local Business Day; if a demand is made after
the
Notification Time, then the relevant Transfer will be made not later than
the
close of business on the second Local Business Day thereafter.
(iii) Calculations.
All
calculations of Value and Exposure for purposes of Paragraphs 3 and 6(d)
will be
made by the Valuation Agent as of the Valuation Time. 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 Local Business Day
following the applicable Valuation Date (or in the case of Paragraph 6(d),
following the date of calculation).
Substitutions.
(A) Unless
otherwise specified in Paragraph 13, upon notice to the Secured Party specifying
the items of Posted Credit Support to be exchanged, the Pledgor may, on any
Local Business Day, Transfer to the Secured Party substitute Eligible Credit
Support (the “Substitute
Credit Support”);
and
(B) subject
to Paragraph 4(a), the Secured Party will Transfer to the Pledgor the items
of
Posted Credit Support specified by the Pledgor in its notice not later than
the
Local Business Day following the date on which the Secured Party receives
the
Substitute Credit Support, unless otherwise specified in Paragraph 13 (the
“Substitution
Date”);
provided, however, that the Secured Party will only be obligated to Transfer
Posted Credit Support with a Value as of the date of Transfer of that Posted
Credit Support equal to the Value as of that date of the Substitute Credit
Support.
(e) Dispute
Resolution
If
a
party (a “Disputing
Party”)
disputes (I) the Valuation Agent’s calculation of a Delivery Amount or a Return
Amount or (II) the Value of any Transfer of Eligible Credit Support or Posted
Credit Support, then (1) the Disputing Party will notify the other party
and the
Valuation Agent (if the Valuation Agent is not the other party) not later
than
the close of business on the Local Business Day following (X) the date that
the
demand is made under Paragraph 3 in the case of (I) above or (Y) the date
of
Transfer in the case of (II) above, (2) subject to Paragraph 4(a), the
appropriate party will Transfer the undisputed amount to the other party
not
later than the close of business on the Local Business Day following (X)
the
date that the demand is made under Paragraph 3 in the case of (I) above or
(Y)
the date of Transfer in the case of (II) above, (3) the parties will consult
with each other in an attempt to resolve the dispute and (4) if they fail
to
resolve the dispute by the Resolution Time, then:
13
(A) In
the
case of a dispute involving a Delivery Amount or Return Amount, unless otherwise
specified in Paragraph 13, the Valuation Agent will recalculate the Exposure
and
the Value as of the Recalculation Date by:
(1) utilizing
any calculations of Exposure for the Transactions (or Swap Transactions)
that
the parties have agreed are not in dispute;
(2) calculating
the Exposure for the Transactions (or Swap Transactions) in dispute by seeking
four actual quotations at mid-market from Reference Market-makers for purposes
of calculating Market Quotation, and taking the arithmetic average of those
obtained; provided that if four quotations are not available for a particular
Transaction (or Swap Transaction), then fewer than four quotations may be
used
for that Transaction (or Swap Transaction); and if no quotations are available
for a particular Transaction (or Swap Transaction), then the Valuation Agent’s
original calculations will be used for that Transaction (or Swap Transaction);
and
(3) utilizing
the procedures specified in Paragraph 13 for calculating the Value, if disputed,
of Posted Credit Support.
(B) In
the
case of a dispute involving the Value of any Transfer of Eligible Credit
Support
or Posted Credit Support, the Valuation Agent will recalculate the Value
as of
the date of Transfer pursuant to Paragraph 13.
Following
a recalculation pursuant to this Paragraph, the Valuation Agent will notify
each
party (or the other party, if the Valuation Agent is a party) not later than
the
Notification Time on the Local Business Day following the Resolution Time.
The
appropriate party will, upon demand following that notice by the Valuation
Agent
or a resolution pursuant to (3) above and subject to Paragraphs 4(a) and
4(b),
make the appropriate Transfer.
(f) Holding
and Using Posted Collateral
(i) Care
of Posted Collateral.
Without
limiting the Secured Party’s rights under Paragraph 6(c), the Secured Party will
exercise reasonable care to assure the safe custody of all Posted Collateral
to
the extent required by applicable law, and in any event the Secured Party
will
be deemed to have exercised reasonable care if it exercises at least the
same
degree of care as it would exercise with respect to its own property. Except
as
specified in the preceding sentence, the Secured Party will have no duty
with
respect to Posted Collateral, including, without limitation, any duty to
collect
any Distributions, or enforce or preserve any rights pertaining
thereto.
(ii) Eligibility
to Hold Posted Collateral; Custodians.
14
(A) General.
Subject
to the satisfaction of any conditions specified in Paragraph 13 for holding
Posted Collateral, the Secured Party will be entitled to hold Posted Collateral
or to appoint an agent (a “Custodian”) to hold Posted Collateral for the Secured
Party. Upon notice by the Secured Party to the Pledgor of the appointment
of a
Custodian, the Pledgor’s obligations to make any Transfer will be discharged by
making the Transfer to that Custodian. The holding of Posted Collateral by
a
Custodian will be deemed to be the holding of that Posted Collateral by the
Secured Party for which the Custodian is acting.
(B) Failure
to Satisfy Conditions.
If the
Secured Party or its Custodian fails to satisfy any conditions for holding
Posted Collateral, then upon a demand made by the Pledgor, the Secured Party
will, not later than five Local Business Days after the demand, Transfer
or
cause its Custodian to Transfer all Posted Collateral held by it to a Custodian
that satisfies those conditions or to the Secured Party if it satisfies those
conditions.
(C) Liability.
The
Secured Party will be liable for the acts or omissions of its Custodian to
the
same extent that the Secured Party would be liable hereunder for its own
acts or
omissions.
(iii) Use
of Posted Collateral.
Unless
otherwise specified in Paragraph 13 and without limiting the rights and
obligations of the parties under Paragraphs 3, 4(d)(ii), 5, 6(d) and 8, if
the
Secured Party is not a Defaulting Party or an Affected Party with respect
to a
Specified Condition and no Early Termination Date has occurred or been
designated as the result of an Event of Default or Specified Condition with
respect to the Secured Party, then the Secured Party will, notwithstanding
Section 9-207 of the New York Uniform Commercial Code, have the right
to:
(A) sell,
pledge, rehypothecate, assign, invest, use, commingle or otherwise dispose
of,
or otherwise use in its business any Posted Collateral it holds, free from
any
claim or right of any nature whatsoever of the Pledgor, including any equity
or
right of redemption by the Pledgor; and
(B) register
any Posted Collateral in the name of the Secured Party, its Custodian or
a
nominee for either.
For
purposes of the obligation to Transfer Eligible Credit Support or Posted
Credit
Support pursuant to Paragraphs 3 and 5 and any rights or remedies authorized
under this Agreement, the Secured Party will be deemed to continue to hold
all
Posted Collateral and to receive Distributions made thereon, regardless of
whether the Secured Party has exercised any rights with respect to any Posted
Collateral pursuant to (i) or (ii) above.
(iv) Distributions
and Interest Amount.
(A) Distributions.
Subject
to Paragraph 4(a), if the Secured Party receives or is deemed to receive
Distributions on a Local Business Day, it will Transfer to the Pledgor not
later
than the following Local Business Day any Distributions it receives or is
deemed
to receive 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).
15
(B) Interest
Amount.
Unless
otherwise specified in Paragraph 13 and subject to Paragraph 4(a), in lieu
of
any interest, dividends or other amounts paid or deemed to have been 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 at
the
times specified in Paragraph 13 the Interest Amount 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). The 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.
(g) Events
of
Default
For
purposes of Section 5(a)(iii)(1) of this Agreement, an Event of Default will
exist with respect to a party if:
(A) that
party fails (or fails to cause its Custodian) to make, when due, any Transfer
of
Eligible Collateral, Posted Collateral or the Interest Amount, as applicable,
required to be made by it and that failure continues for two Local Business
Days
after notice of that failure is given to that party;
(B) that
party fails to comply with any restriction or prohibition specified in this
Annex with respect to any of the rights specified in Paragraph 6(c) and that
failure continues for five Local Business Days after notice of that failure
is
given to that party; or
(C) that
party fails to comply with or perform any agreement or obligation other than
those specified in Paragraphs 7(i) and 7(ii) and that failure continues for
30
days after notice of that failure is given to that party.
(h) Certain
Rights and Remedies
(i) Secured
Party’s Rights and Remedies.
If at
any time (1) an Event of Default or Specified Condition with respect to the
Pledgor has occurred and is continuing or (2) an Early Termination Date has
occurred or been designated as the result of an Event of Default or Specified
Condition with respect to the Pledgor, then, unless the Pledgor has paid
in full
all of its Obligations that are then due, the Secured Party may exercise
one or
more of the following rights and remedies:
(A) all
rights and remedies available to a secured party under applicable law with
respect to Posted Collateral held by the Secured Party;
(B) any
other
rights and remedies available to the Secured Party under the terms of Other
Posted Support, if any;
(C) the
right
to Set-off any amounts payable by the Pledgor with respect to any Obligations
against any Posted Collateral or the Cash equivalent of any Posted Collateral
held by the Secured Party (or any obligation of the Secured Party to Transfer
that Posted Collateral); and
16
(D) the
right
to liquidate any Posted Collateral held by the Secured Party through one
or more
public or private sales or other dispositions with such notice, if any, as
may
be required under applicable law, free from any claim or right of any nature
whatsoever of the Pledgor, including any equity or right of redemption by
the
Pledgor (with the Secured Party having the right to purchase any or all of
the
Posted Collateral to be sold) and to apply the proceeds (or the Cash equivalent
thereof) from the liquidation of the Posted Collateral to any amounts payable
by
the Pledgor with respect to any Obligations in that order as the Secured
Party
may elect.
Each
party acknowledges and agrees that Posted Collateral in the form of securities
may decline speedily in value and is of a type customarily sold on a recognized
market, and, accordingly, the Pledgor is not entitled to prior notice of
any
sale of that Posted Collateral by the Secured Party, except any notice that
is
required under applicable law and cannot be waived.
(ii) Pledgor’s
Rights and Remedies.
If at
any time an Early Termination Date has occurred or been designated as the
result
of an Event of Default or Specified Condition with respect to the Secured
Party,
then (except in the case of an Early Termination Date relating to less than
all
Transactions (or Swap Transactions) where the Secured Party has paid in full
all
of its obligations that are then due under Section 6(e) of this
Agreement):
(A) the
Pledgor may exercise all rights and remedies available to a pledgor under
applicable law with respect to Posted Collateral held by the Secured
Party;
(B) the
Pledgor may exercise any other rights and remedies available to the Pledgor
under the terms of Other Posted Support, if any;
(C) the
Secured Party will be obligated immediately to Transfer all Posted Collateral
and the Interest Amount to the Pledgor; and
(D) to
the
extent that Posted Collateral or the Interest Amount is not so Transferred
pursuant to (iii) above, the Pledgor may:
(1) Set-off
any amounts payable by the Pledgor with respect to any Obligations against
any
Posted Collateral or the Cash equivalent of any Posted Collateral held by
the
Secured Party (or any obligation of the Secured Party to Transfer that Posted
Collateral); and
(2) to
the
extent that the Pledgor does not Set-off under (iv)(A) above, withhold payment
of any remaining amounts payable by the Pledgor with respect to any Obligations,
up to the Value of any remaining Posted Collateral held by the Secured Party,
until that Posted Collateral is Transferred to the Pledgor.
(iii) Deficiencies
and Excess Proceeds.
The
Secured Party will Transfer to the Pledgor any proceeds and Posted Credit
Support remaining after liquidation, Set-off and/or application under Paragraphs
8(a) and 8(b) after satisfaction in full of all amounts payable by the Pledgor
with respect to any Obligations; the Pledgor in all events will remain liable
for any amounts remaining unpaid after any liquidation, Set-off and/or
application under Paragraphs 8(a) and 8(b).
17
(iv) Final
Returns.
When no
amounts are or thereafter may become payable by the Pledgor with respect
to any
Obligations (except for any potential liability under Section 2(d) of this
Agreement), the Secured Party will Transfer to the Pledgor all Posted Credit
Support and the Interest Amount, if any.
(i) Representations
Each
party represents to the other party (which representations will be deemed
to be
repeated as of each date on which it, as the Pledgor, Transfers Eligible
Collateral) that:
(A) it
has
the power to grant a security interest in and lien on any Eligible Collateral
it
Transfers as the Pledgor and has taken all necessary actions to authorize
the
granting of that security interest and lien;
(B) it
is the
sole owner of or otherwise has the right to Transfer all Eligible Collateral
it
Transfers to the Secured Party hereunder, free and clear of any security
interest, lien, encumbrance or other restrictions other than the security
interest and lien granted under Paragraph 2,
(C) upon
the
Transfer of any Eligible Collateral to the Secured Party under the terms
of this
Annex, the Secured Party will have a valid and perfected first priority security
interest therein (assuming that any central clearing corporation or any
third-party financial intermediary or other entity not within the control
of the
Pledgor involved in the Transfer of that Eligible Collateral gives the notices
and takes the action required of it under applicable law for perfection of
that
interest); and
(D) the
performance by it of its obligations under this Annex will not result in
the
creation of any security interest, lien or other encumbrance on any Posted
Collateral other than the security interest and lien granted under Paragraph
2.
(j) Expenses
(i) General.
Except
as otherwise provided in Paragraphs 10(b) and 10(c), each party will pay
its own
costs and expenses in connection with performing its obligations under this
Annex and neither party will be liable for any costs and expenses incurred
by
the other party in connection herewith.
(ii) Posted
Credit Support.
The
Pledgor will promptly pay when due all taxes, assessments or charges of any
nature that are imposed with respect to Posted Credit Support held by the
Secured Party upon becoming aware of the same, regardless of whether any
portion
of that Posted Credit Support is subsequently disposed of under Paragraph
6(c),
except for those taxes, assessments and charges that result from the exercise
of
the Secured Party’s rights under Paragraph 6(c).
(iii) Liquidation/Application
of Posted Credit Support.
All
reasonable costs and expenses incurred by or on behalf of the Secured Party
or
the Pledgor in connection with the liquidation and/or application of any
Posted
Credit Support under Paragraph 8 will be payable, on demand and pursuant
to the
Expenses Section of this Agreement, by the Defaulting Party or, if there
is no
Defaulting Party, equally by the parties.
18
(k) Miscellaneous
(i) Default
Interest.
A
Secured Party that fails to make, when due, any Transfer of Posted Collateral
or
the Interest Amount will be obligated to pay the Pledgor (to the extent
permitted under applicable law) an amount equal to interest at the Default
Rate
multiplied by the Value of the items of property that were required to be
Transferred, from (and including) the date that Posted Collateral or Interest
Amount was required to be Transferred to (but excluding) the date of Transfer
of
that Posted Collateral or Interest Amount. This interest will be calculated
on
the basis of daily compounding and the actual number of days
elapsed.
(ii) Further
Assurances.
Promptly
following a demand made by a party, the other party will execute, deliver,
file
and record any financing statement, specific assignment or other document
and
take any other action that may be necessary or desirable and reasonably
requested by that party to create, preserve, perfect or validate any security
interest or lien granted under Paragraph 2, to enable that party to exercise
or
enforce its rights under this Annex with respect to Posted Credit Support
or an
Interest Amount or to effect or document a release of a security interest
on
Posted Collateral or an Interest Amount.
(iii) Further
Protection.
The
Pledgor will promptly give notice to the Secured Party of, and defend against,
any suit, action, proceeding or lien that involves Posted Credit Support
Transferred by the Pledgor or that could adversely affect the security interest
and lien granted by it under Paragraph 2, unless that suit, action, proceeding
or lien results from the exercise of the Secured Party’s rights under Paragraph
6(c).
(iv) Good
Faith and Commercially Reasonable Manner.
Performance of all obligations under this Annex, including, but not limited
to,
all calculations, valuations and determinations made by either party, will
be
made in good faith and in a commercially reasonable manner.
(v) Demands
and Notices.
All
demands and notices made by a party under this Annex will be made as specified
in the Notices Section of this Agreement, except as otherwise provided in
Paragraph 13.
(vi) Specifications
of Certain Matters.
Anything
referred to in this Annex as being specified in Paragraph 13 also may be
specified in one or more Confirmations or other documents and this Annex
will be
construed accordingly.
19
(l)
Definitions
As
used
in this Annex:
“Cash”
means
the lawful currency of the United States of America. “Credit
Support Amount”
has the
meaning specified in Paragraph 3. “Custodian”
has the
meaning specified in Paragraphs 6(b)(i) and 13. “Delivery
Amount”
has the
meaning specified in Paragraph 3(a). “Disputing
Party”
has the
meaning specified in Paragraph 5.
“Distributions”
means
with respect to Posted Collateral other than Cash, all principal, interest
and
other payments and distributions of cash or other property with respect thereto,
regardless of whether the Secured Party has disposed of that Posted Collateral
under Paragraph 6(c). Distributions will not include any item of property
acquired by the Secured Party upon any disposition or liquidation of Posted
Collateral or, with respect to any Posted Collateral in the form of Cash,
any
distributions on that collateral, unless otherwise specified
herein.
“Eligible
Collateral”
means,
with respect to a party, the items, if any, specified as such for that party
in
Paragraph 13.
“Eligible
Credit Support”
means
Eligible Collateral and Other Eligible Support.
“Exposure”
means
for any Valuation Date or other date for which Exposure is calculated and
subject to Paragraph 5 in the case of a dispute, the amount, if any, that
would
be payable to a party that is the Secured Party by the other party (expressed
as
a positive number) or by a party that is the Secured Party to the other party
(expressed as a negative number) pursuant to Section 6(e)(ii)(2)(A) of this
Agreement as if all Transactions (or Swap Transactions) were being terminated
as
of the relevant Valuation Time; provided, however, that Market Quotation
will be
determined by the Valuation Agent using its estimates at mid-market of the
amounts that would be paid for Replacement Transactions (as that term is
defined
in the definition of “Market Quotation”).
“Independent
Amount”
means,
with respect to a party, the amount specified as such for that party in
Paragraph 13; if no amount is specified, zero.
“Interest
Amount”
means,
with respect to an Interest Period, the aggregate sum of the amounts of interest
calculated for each day in that Interest Period on the principal amount of
Posted Collateral in the form of Cash held by the Secured Party on that day,
determined by the Secured Party for each such day as follows:
(x)
the
amount of that Cash on that day; multiplied by
(y)
the
Interest Rate in effect for that day; divided by
(z)
360.
“Interest
Period”
means
the period from (and including) the last Local Business Day on which an Interest
Amount was Transferred (or, if no Interest Amount has yet been Transferred,
the
Local Business Day on which Posted Collateral in the form of Cash was
Transferred to or received by the Secured Party) to (but excluding) the Local
Business Day on which the current Interest Amount is to be
Transferred.
“Interest
Rate”
means
the rate specified in Paragraph 13.
“Local
Business Day”
unless
otherwise specified in Paragraph 13, has the meaning specified in the
Definitions Section of this Agreement, except that references to a payment
in
clause (b) thereof will be deemed to include a Transfer under this
Annex.
“Minimum
Transfer Amount”
means,
with respect to a party, the amount specified as such for that party in
Paragraph 13; if no amount is specified, zero.
“Notification
Time”
has the
meaning specified in Paragraph 13.
20
“Obligations”
means,
with respect to a party, all present and future obligations of that party
under
this Agreement and any additional obligations specified for that party in
Paragraph 13.
“Other
Eligible Support”
means,
with respect to a party, the items, if any, specified as such for that party
in
Paragraph 13.
“Other
Posted Support”
means
all Other Eligible Support Transferred to the Secured Party that remains
in
effect for the benefit of that Secured Party.
“Pledgor”
means
either party, when that party (i) receives a demand for or is required to
Transfer Eligible Credit Support under Paragraph 3(a) or (ii) has Transferred
Eligible Credit Support under Paragraph 3(a).
“Posted
Collateral”
means
all Eligible Collateral, other property, Distributions, and all proceeds
thereof
that have been Transferred to or received by the Secured Party under this
Annex
and not Transferred to the Pledgor pursuant to Paragraph 3(b), 4(d)(ii) or
6(d)(i) or released by the Secured Party under Paragraph 8. Any Interest
Amount
or portion thereof not Transferred pursuant to Paragraph 6(d)(ii) will
constitute Posted Collateral in the form of Cash.
“Posted
Credit Support”
means
Posted Collateral and Other Posted Support.
“Recalculation
Date”
means
the Valuation Date that gives rise to the dispute under Paragraph 5; provided,
however, that if a subsequent Valuation Date occurs under Paragraph 3 prior
to
the resolution of the dispute, then the “Recalculation Date” means the most
recent Valuation Date under Paragraph 3.
“Resolution
Time”
has the
meaning specified in Paragraph 13.
“Return
Amount”
has the
meaning specified in Paragraph 3(b).
“Secured
Party”
means
either party, when that party (i) makes a demand for or is entitled to receive
Eligible Credit Support under Paragraph 3(a) or (ii) holds or is deemed to
hold
Posted Credit Support.
“Specified
Condition”
means,
with respect to a party, any event specified as such for that party in Paragraph
13.
“Substitute
Credit Support”
has the
meaning specified in Paragraph 4(d)(i).
“Substitution
Date”
has the
meaning specified in Paragraph 4(d)(ii).
“Threshold”
means,
with respect to a party, the amount specified as such for that party in
Paragraph 13; if no amount is specified, zero.
“Transfer” means,
with respect to any Eligible Credit Support, Posted Credit Support or Interest
Amount, and in accordance with the instructions of the Secured Party, Pledgor
or
Custodian, as applicable:
(i) in
the
case of Cash, payment or delivery by wire transfer into one or more bank
accounts specified by the recipient;
(ii) in
the
case of certificated securities that cannot be paid or delivered by book-entry,
payment or delivery in appropriate physical form to the recipient or its
account
accompanied by any duly executed instruments of transfer, assignments in
blank,
transfer tax stamps and any other documents necessary to constitute a legally
valid transfer to the recipient;
(iii) in
the
case of securities that can be paid or delivered by book-entry, the giving
of
written instructions to the relevant depository institution or other entity
specified by the recipient, together with a written copy thereof to the
recipient, sufficient if complied with to result in a legally effective transfer
of the relevant interest to the recipient; and
21
(iv) in
the
case of Other Eligible Support or Other Posted Support, as specified in
Paragraph 13.
“Valuation
Agent”
has the
meaning specified in Paragraph 13.
“Valuation
Date”
means
each date specified in or otherwise determined pursuant to Paragraph
13.
“Valuation
Percentage”
means,
for any item of Eligible Collateral, the percentage specified in Paragraph
13.
“Valuation
time”
has the
meaning specified in Paragraph 13.
“Value”
means
for any Valuation Date or other date for which Value is calculated and subject
to Paragraph 5 in the case of a dispute, with respect to:
(i) Eligible
Collateral or Posted Collateral that is:
(A) Cash,
the
Amount thereof, and
(B) a
security, the bid price obtained by the Valuation Agent multiplied by the
applicable Valuation Percentage, if any;
(ii) Posted
Collateral that consists of items that are not specified as Eligible Collateral,
zero; and
(iii) Other
Eligible Support and Other Posted Support, as specified in Paragraph
13.
22
Elections
and Variables
to
the 1994 ISDA Credit Support Annex
dated
as of
October
2, 2007
between
SWISS
RE FINANCIAL PRODUCTS CORPORATION
|
and
|
XXXXX
FARGO BANK, N.A., solely in its capacity as Securities Administrator
on
behalf of the Trust with respect to HarborView Mortgage Loan
Trust
Mortgage Loan Pass-Through Certificates, Series
2007-7
|
_______________________________________
(“Party
A”)
|
_________________________________________
(“Party
B”)
|
Paragraph
13.
(m)
|
Security
Interest for
“Obligations”.
|
The
term “Obligations”
as used
in this Annex includes the following additional obligations: None.
(n)
|
Credit
Support Obligations.
|
(i)
|
Delivery
Amount, Return Amount and Credit Support
Amount.
|
(A)
|
“Delivery
Amount”
has the meaning specified in Paragraph 3(a), except that the words
“upon a
demand made by the Secured Party on or promptly following a Valuation
Date” shall be deleted and replaced by the words “on each Valuation Date;”
provided,
that the Delivery Amount shall be calculated, with respect to collateral
posting required by each Rating Agency, by using (i) such Rating
Agency’s
Valuation Percentages as provided below to determine Value and
(ii) the
Credit Support Amount related to such Rating Agency. The Delivery
Amount
shall be the greatest of such calculated
amounts.
|
(B)
|
“Return
Amount”
has the meaning
specified in Paragraph 3(b); provided,
that the Return Amount shall be calculated, with respect to collateral
posting required by each Rating Agency, by using (i) such Rating
Agency’s
Valuation Percentages as provided below to determine Value and
(ii) the
Credit Support Amount related to such Rating Agency. The Return
Amount
shall be the least of such calculated
amounts.
|
(C)
|
“Credit
Support Amount”
has the meaning specified in Paragraph 13(j)(iv).
|
(ii)
|
Eligible
Credit Support.
The following Valuation
Percentages1
shall apply to Eligible Collateral with respect to Party A; provided,
however,
that all Eligible Collateral shall be denominated in United States
Dollars.
|
Collateral
|
S&P
Valuation
Percentage
for Eligible Counterparties
|
S&P
Valuation
Percentage
for Ineligible Counterparties
|
Fitch
Valuation
Percentage
|
Xxxxx’x
First
Trigger Valuation
Percentage
|
Xxxxx’x
Second
Trigger Valuation
Percentage
|
Cash
|
100%
|
80%
|
100%
|
100%
|
100%
|
Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of not more than one
year
|
98.0%
|
78.4%
|
97.5%
|
100%
|
100%
|
Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of not more than five
years
|
98.0%
|
78.4%
|
91.5%
|
100%
|
97%
|
______________________________
1
With
respect to collateral types not listed below, such assets will be subject
to
review by each of S&P, Fitch and Xxxxx’x.
23
Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of more than one year but not
more than
ten years
|
92.6%
|
74.1%
|
86.3%
|
100%
|
94%
|
Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of greater than or equal to five
years
but less than or equal to ten years
|
92.6%
|
74.1%
|
86.3%
|
100%
|
94%
|
Fixed-rate
negotiable debt obligations issued by the U.S. Treasury Department
having
a remaining maturity on such date of more than ten years
|
84.6%
|
67.7%
|
79%
|
100%
|
87%
|
Fixed-rate
U.S. Agency Debentures having a remaining maturity on such date
of not
more than one year
|
98.0%
|
78.4%
|
(2)
|
100%
|
99%
|
Fixed-rate
and floating-rate U.S. Agency Debentures having a remaining maturity
on
such date of not more than five years
|
98.0%
|
78.4%
|
(3)
|
100%
|
96%
|
Fixed-rate
U.S. Agency Debentures having a remaining maturity on such date
of more
than one year but not more than ten years
|
92.6%
|
74.1%
|
(4)
|
100%
|
93%
|
Fixed-rate
and floating-rate U.S. Agency Debentures having a remaining maturity
on
such date of greater than or equal to five years but less than
or equal to
ten years
|
92.6%
|
74.1%
|
(5)
|
100%
|
93%
|
Fixed-rate
U.S. Agency Debentures having a remaining maturity on such date
of more
than ten years
|
77.9%
|
62.3%
|
(6)
|
100%
|
86%
|
(iii)
|
Thresholds.
|
(A)
|
“Independent
Amount”
means with respect to Party A: Zero
|
“Independent
Amount”
means
with respect to Party B: Zero
(B)
|
“Threshold”
means with respect to Party A: infinity; provided
that the Threshold with respect to Party A shall be zero for so
long as,
with respect to Xxxxx’x and Fitch, no Relevant Entity has the Xxxxx’x
First Trigger Required Ratings or a Collateralization Event is
occurring,
respectively, and with respect to S&P, no Relevant Entity has the
S&P First Trigger Required Ratings, and (i) no Relevant Entity has
had
the Xxxxx’x First Trigger Required Ratings since this Annex was executed,
or (ii) at least 30 Local Business Days have elapsed since the
last time a
Relevant Entity had the Xxxxx’x First Trigger Required Ratings, or (iii)
no Relevant Entity has met the Hedge Counterparty Ratings Requirement
since this Annex was executed, or (iv) at least 30 calendar days
have
elapsed since the last time a Collateralization Event occurred,
or (v) a
Ratings Event is occurring, or (vi) no Relevant Entity has had
the S&P
First Trigger Required Ratings since this Annex was executed or
(vii) at
least 10 Local Business Days have elapsed since the last time the
Relevant
Entity has had the S&P
First Trigger Required Ratings.
|
_____________________
2
Subject
to review by Fitch.
3
Subject
to review by Fitch.
4
Subject
to review by Fitch.
5
Subject
to review by Fitch.
6
Subject
to review by Fitch.
24
“Threshold”
means
with respect to Party B: infinity.
(C)
|
“Minimum
Transfer Amount”
means
with respect to Party A: USD $100,000; provided,
however,
that if S&P is rating the Certificates and the aggregate Certificate
Principal Balances of the rated Certificates falls below $50,000,000,
then
the Minimum Transfer Amount shall mean USD $50,000.
|
(D) “Minimum
Transfer Amount”
means
with respect to Party B: USD $100,000 (or
if
the Posted Collateral is less than $100,000, the aggregate Value of Posted
Collateral),
provided,
however,
that if
S&P is rating the Certificates and the aggregate Certificate Principal
Balances of the rated Certificates falls below $50,000,000, then the Minimum
Transfer Amount shall mean USD $50,000 (or if the Posted Collateral is less
than
$50,000, the aggregate Value of Posted Collateral).
(E)
|
Rounding.
The Delivery Amount will be rounded up to the nearest integral
multiple of
USD $10,000; provided,
however,
that if S&P is rating the Certificates, the Delivery Amount will be
rounded up to the nearest integral multiple of $1,000. The Return
Amount
will be rounded down to the nearest integral multiple of USD $10,000;
provided,
however,
that if S&P is rating the Certificates, the Return Amount will be
rounded down to the nearest integral multiple of
$1,000.
|
(iv)
|
“Exposure”
has the meaning specified in Paragraph 12, except that (1) after
the word
“Agreement” the words “(assuming, for this purpose only, that Part 5(q) of
the Schedule is deleted)” shall be inserted and (2) at the end of such
definition, the words “with terms substantially the same as those of this
Agreement.”
|
(o)
|
Valuation
and Timing.
|
(i)
|
“Valuation
Agent”
means Party A in all circumstances.
|
(ii)
|
“Valuation
Date”
means the first Local Business Day in each
week.
|
(iii)
|
“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
Credit Support Amount will, as far as practicable, be made as of
approximately the same time on the same date.
|
(iv)
|
“Notification
Time”
means 10:00 a.m., New York time, on a Local Business
Day.
|
The
amount
of “Value”
with
respect to Cash in Paragraph 12 shall be the Amount thereof multiplied by
the
applicable Valuation Percentage.
(p)
|
Conditions
Precedent and Secured Party’s Rights and Remedies.
None.
|
(q)
|
Substitution.
|
25
(i)
|
“Substitution
Date”
has the meaning specified in Paragraph
4(d)(ii).
|
(ii)
|
Consent.
If specified here as applicable, then the Pledgor must obtain the
Secured
Party’s consent for any substitution pursuant to Paragraph 4(d):
Inapplicable.
|
(r)
|
Dispute
Resolution.
|
(i)
|
“Resolution
Time”
means 1:00 p.m., New York time on the Local Business Day following
the
date on which the notice is given that gives rise to a dispute
under
Paragraph 5.
|
(ii)
|
Value.
For the purpose of Paragraphs 5(i)(C) and 5(ii), the Value of Eligible
Credit Support or Posted Credit Support as of the relevant Valuation
Date
or date of Transfer will be calculated as follows:
|
(A)
|
with
respect to any Eligible Credit Support or Posted Credit Support
comprising
securities (“Securities”)
the sum of (a)(x) the last bid price on such date for such Securities
on
the principal national securities exchange on which such Securities
are
listed, multiplied by the applicable Valuation Percentage; or (y)
where
any Securities are not listed on a national securities exchange,
the bid
price for such Securities quoted as at the close of business on
such date
by any principal market maker (which shall not be and shall be
independent
from the Valuation Agent) for such Securities chosen by the Valuation
Agent, multiplied by the applicable Valuation Percentage; or (z)
if no
such bid price is listed or quoted for such date, the last bid
price
listed or quoted (as the case may be), as of the day next preceding
such
date on which such prices were available, multiplied by the applicable
Valuation Percentage; plus (b) the accrued interest where applicable
on
such Securities (except to the extent that such interest shall
have been
paid to the Pledgor pursuant to Paragraph 5(c)(ii) or included
in the
applicable price) as of such date;
and
|
(B)
|
with
respect to any Cash, the face amount thereof multiplied by the
applicable
Valuation Percentage.
|
(iii)
|
Alternative.
The provisions of Paragraph 5 will
apply.
|
(s)
|
Holding
and Using Posted
Collateral.
|
(i)
|
Eligibility
to Hold Posted Collateral; Custodians:
|
A
Custodian will be entitled to hold Posted Collateral on behalf of Party B
pursuant to Paragraph 6(b); provided
that:
(1) Posted
Collateral may be held only in the following jurisdiction: United
States.
(2) The
Custodian for Party B (A) is a commercial bank or trust company which is
unaffiliated with Party B and organized under the laws of the United States
or
state thereof, having assets of at least $500 million and a long term debt
or a
deposit rating of at least (i) Baa2 from Xxxxx’x and (ii) A-1 from S&P, or
is the Securities Administrator, and a short term rating from Fitch of at
least
“F1” and (B) shall hold all Eligible Credit Support in an Eligible Account
segregated from the Swap Account and the Basis Risk Cap Account, as defined
in
the related Pooling and Servicing Agreement.
26
Initially,
the Custodian for Cash and Securities for Party B is: The Securities
Administrator under the Pooling and Servicing Agreement, or any successor
securities administrator thereto.
If the
Custodian is a party other than the Securities
Administrator
and
ceases to meet the requirements set forth in clause (i)(2) above, the
Securities
Administrator
shall
replace such Custodian within 60 calendar days from the time such Custodian
failed to be so eligible.
(ii) Use
of Posted Collateral.
The
provisions of Paragraph 6(c)(i) will not apply to Party B, but the provisions
of
Paragraph 6(c)(ii) will apply to Party B.
(iii) Notice.
If a
party or its Custodian fails to meet the criteria for eligibility to hold
(or,
in the case of a party, to use) Posted Collateral set forth in this Paragraph
13(g), such party shall promptly notify the other party of such
ineligibility.
(t)
|
Distributions
and Interest Amount.
|
(i)
|
Interest
Rate.
The “Interest
Rate”
will be the federal funds overnight rate as published by the Board
of
Governors of the Federal Reserve System in H.15 (519) or its successor
publication, or such other rate as the parties may agree from time
to
time.
|
(ii)
|
Transfer
of Interest Amount.
The transfer of the Interest Amount will be made on the second
Local
Business Day following the end of each calendar month and on any
other
Local Business Day on which Posted Collateral in the form of Cash
is
transferred to the Pledgor pursuant to Paragraph 3(b), in each
case to the
extent that a Delivery Amount would not be created or increased
by that
transfer, provided
that Party B shall not be obliged to so transfer any Interest Amount
unless and until it has earned and received such
interest.
|
(iii)
|
Alternative
to Interest Amount.
The provisions of Paragraph 6(d)(ii) will apply.
|
(u)
|
Address
for Transfers.
|
Party
A:
To be notified to Party B by Party A at the time of the request for the
transfer.
Party
B:
To be notified to Party A by Party B upon request by Party A.
(v)
|
Other
Provisions.
|
(i)
|
Events
of Default.
|
Subclause
(iii) shall be deleted from Paragraph
7.
(ii)
|
Costs
of Transfer on
Exchange.
|
Notwithstanding
Paragraph 10, the Pledgor
will be responsible for, and will reimburse the Secured Party for,
all
transfer and other taxes and other costs involved in the transfer
of
Eligible Credit Support either from the Pledgor to the Secured
Party or
from the Secured Party to the
Pledgor.
|
(iii)
|
Cumulative
Rights.
|
27
The
rights, powers and remedies of the Secured Party under this Annex
shall be
in addition to all rights, powers and remedies given to the Secured
Party
by the Agreement or by virtue of any statute or rule of law, all
of which
rights, powers and remedies shall be cumulative and may be exercised
successively or concurrently without impairing the rights of the
Secured
Party in the Posted
Credit Support created pursuant to this
Annex.
|
(iv)
|
Ratings
Criteria.
|
“Credit
Support Amount”
means
(a) in respect of S&P, the S&P Credit Support Amount, (b) in respect of
Fitch, the Fitch Credit Support Amount, and (c) in respect of Xxxxx’x, the
Xxxxx’x First Trigger Credit Support Amount, or the Xxxxx’x Second Trigger
Credit Support Amount, as applicable.
With
respect to Fitch:
“Fitch
Credit Support Amount”
means,
for any Valuation Date, the excess, if any, of:
(I)
|
(A)
|
for
any Valuation Date (x) on which a Collateralization Event with
respect to
Fitch has occurred and been continuing for at least 30 calendar
days or
(y) on which a Ratings Event with respect to Fitch has occurred
and is
continuing, an amount equal to the sum of (1) the aggregate Secured
Party’s Exposure for such Valuation Date with respect to all Transactions
and (2) the aggregate of the products of the Volatility Buffer
for each
Transaction and the Notional Amount of each Transaction for the
Calculation Period of each such Transaction which includes such
Valuation
Date, or
|
(B)
|
for
any other Valuation Date, zero,
over
|
(II) the
Threshold for Party A for such Valuation Date.
“Volatility
Buffer”
shall
mean the percentage set forth in the following table with respect to any
Transaction (other than a Transaction identified in the related Confirmation
as
a Timing Hedge):
Weighted
Average Life (Years)
|
|||||||||||||||
Notes’
Rating
|
1
|
2
|
3
|
4
|
5
|
6
|
7
|
8
|
9
|
10
|
11
|
12
|
13
|
14
|
>=15
|
USD
Interest Rate Swaps
|
|||||||||||||||
AA-
or Better
|
0.8
|
1.7
|
2.5
|
3.3
|
4.0
|
4.7
|
5.3
|
5.9
|
6.5
|
7.0
|
7.5
|
8.0
|
8.5
|
9.0
|
9.5
|
A+/A
|
0.6
|
1.2
|
1.8
|
2.3
|
2.8
|
3.3
|
3.8
|
4.2
|
4.6
|
5.0
|
5.3
|
5.7
|
6.0
|
6.4
|
6.7
|
A-/BBB+
|
0.5
|
1.0
|
1.6
|
2.0
|
2.5
|
2.9
|
3.3
|
3.6
|
4.0
|
4.3
|
4.7
|
5.0
|
5.3
|
5.6
|
5.9
|
With
respect to Xxxxx’x:
“Xxxxx’x
First Trigger Credit Support Amount”
means,
for any Valuation Date, the excess, if any, of
(I) (A) for
any
Valuation Date on which (I) a Xxxxx’x First Trigger Failure Condition 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 Xxxxx’x Second
Trigger 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 the Secured
Party’s aggregate Exposure for all Transactions and the aggregate of Xxxxx’x
Additional Collateralized Amounts for each Transaction.
28
For
the purposes of this definition, the “Xxxxx’x
Additional Collateralized Amount”
with respect to any Transaction shall mean:
|
the
product of the applicable Xxxxx’x First Trigger Factor set forth in Table
1 and the Notional Amount for such Transaction for the Calculation
Period
which includes such Valuation Date; or
|
(B) for
any
other Valuation Date, zero, over
(II)
|
the
Threshold for Party A such Valuation
Date.
|
“Xxxxx’x
First Trigger Failure Condition”
means
that no Relevant Entity has credit ratings from Xxxxx’x at least equal to the
Xxxxx’x First Trigger Required Ratings.
“Xxxxx’x
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 Xxxxx’x First Trigger
Valuation Percentage for such Eligible Collateral set forth in Paragraph
13(b)(ii).
“Xxxxx’x
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 Xxxxx’x Second Trigger Failure
Condition 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 Payments for all Next Payment Dates (c) the sum of the Secured Party’s
aggregate Exposure and the aggregate of Xxxxx’x Additional Collateralized
Amounts for each Transaction.
For
the purposes of this definition, the “Xxxxx’x
Additional Collateralized Amount”
with respect to any Transaction shall mean:
|
if
such Transaction is not a Transaction-Specific
Hedge,
|
the
product of the applicable Xxxxx’x Second Trigger Factor set forth in Table
2 and the Notional Amount for such Transaction for the Calculation
Period
which includes such Valuation Date;
or
|
if
such Transaction is a Transaction-Specific Hedge,
|
the
product of the applicable Xxxxx’x Second Trigger Factor set forth in Table
3 and the Notional Amount for such Transaction for the Calculation
Period
which includes such Valuation Date; or
|
(B) for
any
other Valuation Date, zero, over
(II)
|
the
Threshold for Party A for such Valuation
Date.
|
“Next
Payment”
means,
in
respect of each Next Payment Date, the greater of (i) the amount of any payments
due to be made by Party A under Section 2(a) of the Master Agreement on such
Next Payment Date less any payments due to be made by Party B under Section
2(a)
of the Master Agreement on such Next Payment Date (in each case, after giving
effect to any applicable netting under Section 2(c) of the Master Agreement)
and
(ii) zero.
29
“Next
Payment Date”
means
each date on which the next scheduled payment under any Transaction is due
to be
paid.
“Transaction-Specific
Hedge” means
any
Transaction that is an interest rate cap, interest rate floor or interest
rate
swaption, or an interest rate swap if (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 otherwise is not a specific dollar amount
that is fixed at the inception of the Transaction.
“Xxxxx’x
Second Trigger Failure Condition”
means
that no Relevant Entity has credit ratings from Xxxxx’x at least equal to the
Xxxxx’x Second Trigger Ratings Threshold.
“Xxxxx’x
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 Xxxxx’x Second Trigger
Valuation Percentage for such Eligible Collateral set forth in Paragraph
13(b)(ii).
With
respect to S&P:
“S&P
Credit Support Amount”
means,
for any Valuation Date, the excess, if any, of:
(I)
|
(A)
|
for
any Valuation Date on which (x) an S&P FI Relevant Entity’s senior,
unsecured (i) short-term debt obligations are rated “A-2” by S&P or
(ii) long-term debt obligations are rated “A,” “A-“ or “BBB+,” if such
S&P FI Relevant Entity does not have a senior, unsecured short-term
rating from S&P, an amount equal to the aggregate Secured Party’s
Exposure for such Valuation Date with respect to all Transactions
or (y)
the Relevant Entity is an Ineligible Counterparty, an amount equal
to the
product of 125% times the aggregate Secured Party’s Exposure for such
Valuation Date with respect to all Transactions,
or
|
(B)
|
for
any other Valuation Date, zero,
over
|
(II) the
Threshold for Party A for such Valuation Date.
“S&P
Valuation Percentage”
means, with respect to a Valuation Date and each item of Eligible
Collateral:
(A)
if the S&P Threshold for such Valuation Date is zero and it is not the case
that a
S&P
Trigger Failure Condition has occurred and been continuing for at least 10
Local
Business Days, the corresponding percentage for such Eligible Collateral
in the
column headed “S&P Valuation Percentage for Eligible Counterparties,” or
(B)
if an S&P Trigger Failure Condition has occurred and been continuing for at
least 10 Local Business Days, the corresponding percentage for such Eligible
Collateral in the column headed “S&P Valuation Percentage for Ineligible
Counterparties.”
30
(v)
|
Demands
and Notices.
|
All
demands, specifications and notices under this Annex will be made pursuant
to
the Notices Section of this Agreement, save that any demand, specification
or
notice:
(A)
|
shall
be given to or made at the following
addresses:
|
If
to
Party A:
As
set
forth in Part 4(a) of the Schedule.
If
to
Party B:
As
set
forth in Part 4(a) of the Schedule.
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 subparagraph) to the
other
party;
(B)
|
shall
be deemed to be effective at the time such notice is actually received
unless such notice is received on a day which is not a Local Business
Day
or after the Notification Time on any Local Business Day in which
event
such notice shall be deemed to be effective on the next succeeding
Local
Business Day.
|
Pursuant
to the Section 4.03 of the Pooling and Servicing Agreement, the monthly report
to Certificateholders shall be made available to Party A in the manner and
form
specified therein.
(vi)
|
Agreement
as to Single Secured Party and
Pledgor
|
Party
A and Party B agree that, notwithstanding anything to the contrary
in the
first
sentence of this Annex, Paragraph 1(b) or Paragraph 2 or the definitions
in Paragraph 12, except with respect to Party B’s obligations under
Paragraph 3(b), (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 and (d) only Party A will be required
to
make Transfers of Eligible Credit Support hereunder. Party A and
Party B
further agree that, notwithstanding anything to the contrary in
the
recital to this Annex or Paragraph 7, this Annex will constitute
a Credit
Support Document only with respect to Party
A.
|
(vii)
|
Limited
Capacity.
|
31
It
is expressly understood and agreed by the parties hereto that (i)
this
Annex is executed and delivered by Xxxxx Fargo Bank, N.A. not individually
or personally but solely as Securities Administrator of the Trust,
in the
exercise of the powers and authority conferred and vested in it
under the
Pooling and Servicing Agreement, (ii) each of the representations,
undertakings and agreements herein made on the part of the Trust
is made
and intended not as personal representations, undertakings and
agreements
by the Securities Administrator but is made and intended for the
purpose
of binding only the Trust, (iii) nothing herein contained shall
be
construed as creating any liability on the part of the Securities
Administrator, individually or personally, to perform any covenant
either
expressed or implied contained herein, all such liability, if any,
being
expressly waived by the parties hereto and by any Person claiming
by,
through or under the parties hereto and (iv) under no circumstances
shall
Xxxxx Fargo Bank, N.A. be personally liable for the payment of
any
indebtedness or expenses of the Trust or be liable for the breach
or
failure of any obligation, representation, warranty or covenant
made or
undertaken by the Trust under this Annex or any other related documents
as
to all of which recourse shall be had solely to the assets of the Trust in
accordance with the terms of the Pooling and Servicing Agreement;
unless
the Securities Administrator was grossly negligent or acted with
wilful
misconduct.
|
[Signature
page follows]
32
IN
WITNESS WHEREOF,
the
parties have executed this document by their duly authorized officers with
effect from the date specified on the first page hereof.
SWISS
RE FINANCIAL PRODUCTS CORPORATION
|
XXXXX
FARGO BANK, N.A., solely in its capacity as Securities Administrator
on
behalf of the Trust with respect to HarborView Mortgage Loan Trust
Mortgage Loan Pass-Through Certificates, Series
2007-7
|
By:
/s/
Xxxxxx Xxxxxx
Name:
Xxxxxx Xxxxxx
Title:
Director
|
By:
/s/
Xxxxxx X. Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President
|
33
Table
1
Xxxxx’x
First Trigger Factor
Remaining
Weighted Average Life
of
Hedge in Years
|
Weekly
Collateral Posting
|
|
1
or less
|
0.25%
|
|
More
than 1 but not more than 2
|
0.50%
|
|
More
than 2 but not more than 3
|
0.70%
|
|
More
than 3 but not more than 4
|
1.00%
|
|
More
than 4 but not more than 5
|
1.20%
|
|
More
than 5 but not more than 6
|
1.40%
|
|
More
than 6 but not more than 7
|
1.60%
|
|
More
than 7 but not more than 8
|
1.80%
|
|
More
than 8 but not more than 9
|
2.00%
|
|
More
than 9 but not more than 10
|
2.20%
|
|
More
than 10 but not more than 11
|
2.30%
|
|
More
than 11 but not more than 12
|
2.50%
|
|
More
than 12 but not more than 13
|
2.70%
|
|
More
than 13 but not more than 14
|
2.80%
|
|
More
than 14 but not more than 15
|
3.00%
|
|
More
than 15 but not more than 16
|
3.20%
|
|
More
than 16 but not more than 17
|
3.30%
|
|
More
than 17 but not more than 18
|
3.50%
|
|
More
than 18 but not more than 19
|
3.60%
|
|
More
than 19 but not more than 20
|
3.70%
|
|
More
than 20 but not more than 21
|
3.90%
|
|
More
than 21 but not more than 22
|
4.00%
|
|
More
than 22 but not more than 23
|
4.00%
|
|
More
than 23 but not more than 24
|
4.00%
|
|
More
than 24 but not more than 25
|
4.00%
|
|
More
than 25 but not more than 26
|
4.00%
|
|
More
than 26 but not more than 27
|
4.00%
|
|
More
than 27 but not more than 28
|
4.00%
|
|
More
than 28 but not more than 29
|
4.00%
|
|
More
than 29
|
4.00%
|
34
Table
2
Xxxxx’x
Second Trigger Factor for Interest Rate Swaps with Fixed Notional
Amounts
Remaining
Weighted
Average Life
of
Hedge in Years
|
Weekly
Collateral
Posting
|
|
1
or less
|
0.60%
|
|
More
than 1 but not more than 2
|
1.20%
|
|
More
than 2 but not more than 3
|
1.70%
|
|
More
than 3 but not more than 4
|
2.30%
|
|
More
than 4 but not more than 5
|
2.80%
|
|
More
than 5 but not more than 6
|
3.30%
|
|
More
than 6 but not more than 7
|
3.80%
|
|
More
than 7 but not more than 8
|
4.30%
|
|
More
than 8 but not more than 9
|
4.80%
|
|
More
than 9 but not more than 10
|
5.30%
|
|
More
than 10 but not more than 11
|
5.60%
|
|
More
than 11 but not more than 12
|
6.00%
|
|
More
than 12 but not more than 13
|
6.40%
|
|
More
than 13 but not more than 14
|
6.80%
|
|
More
than 14 but not more than 15
|
7.20%
|
|
More
than 15 but not more than 16
|
7.60%
|
|
More
than 16 but not more than 17
|
7.90%
|
|
More
than 17 but not more than 18
|
8.30%
|
|
More
than 18 but not more than 19
|
8.60%
|
|
More
than 19 but not more than 20
|
9.00%
|
|
More
than 20 but not more than 21
|
9.00%
|