BEAR XXXXXXX FINANCIAL PRODUCTS INC.
000 XXXXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
000-000-0000
DATE: July 12, 2007
TO: Newcastle Mortgage Securities Trust 2007-1
ATTENTION: c/o Fortress Investment Group LLC
Xxx Xxxx
TELEPHONE: 000-000-0000
FACSIMILE: 000-000-0000
FROM: Derivatives Documentation
TELEPHONE: 000-000-0000
FACSIMILE: 000-000-0000
SUBJECT: Fixed Income Derivatives Confirmation
REFERENCE NUMBER(S): FXNSC9757
The purpose of this letter agreement is to confirm the terms and conditions of the Transaction entered into on the Trade Date specified
below (the "Transaction") between Bear Xxxxxxx Financial Products Inc. ("Party A") and Newcastle Mortgage Securities Trust 2007-1
("Party B"). This letter agreement constitutes the sole and complete "Confirmation," as referred to in the Master Agreement specified
below, with respect to this Transaction.
1. This Confirmation is subject to and incorporates the 2000 ISDA Definitions (the "Definitions"), as published by the International
Swaps and Derivatives Association, Inc. ("ISDA"). This Confirmation supplements, forms a part of and is subject to the ISDA Master
Agreement dated as of July 12, 2007, between Party A and Party B (the agreement, as amended and supplemented from time to time, being
referred to herein as the "Master Agreement"). All provisions contained in, or incorporated by reference to, the Master Agreement
shall govern the Transaction referenced in this Confirmation except as expressly modified herein. In the event of any inconsistency
between this Confirmation and the Definitions or Master Agreement, this Confirmation shall prevail.
2. The terms of the particular Transaction to which this Confirmation relates are as follows:
Type of Transaction: Interest Rate Swap
Notional Amount: With respect to any Calculation Period, the Notional Amount set forth for such
period in Schedule I attached hereto.
Trade Date: June 29, 2007
Effective Date: July 12, 2007
Termination Date: March 25, 2013, provided, however, for the purposes of determining the Floating Amount to
be paid in respect of the final Calculation Period, such date shall be subject to
adjustment in accordance with the Following Business Day Convention.
Reference Number: FXNSC9757
Newcastle Mortgage Securities Trust 2007-1
July 12, 2007
Page 2 of 7
Fixed Amounts:
Fixed Rate Payer: Party B
Fixed Rate Payer
Payment Dates: Early Payment shall be applicable. One Business Day prior to each Fixed Rate Payer Period
End Date.
Fixed Rate Payer
Period End Dates: The 25th calendar day of each month during the Term of this Transaction, commencing July
25, 2007 and ending on the Termination Date, with No Adjustment.
Fixed Rate: 5.07400%
Fixed Amount: To be determined in accordance with the following formula:
Scale Factor*Fixed Rate*Notional Amount*Fixed Rate Day Count Fraction
Fixed Rate Day
Count Fraction: 30/360
Floating Amounts:
Floating Rate Payer: Party A
Floating Rate Payer
Payment Dates: Early Payment shall be applicable. One Business Day prior to each Floating Rate Payer
Period End Date.
Floating Rate Payer
Period End Dates: The 25th calendar day of each month during the Term of this Transaction, commencing July
25, 2007 and ending on the Termination Date, subject to adjustment in accordance with the
Business Day Convention.
Floating Rate for initial
Calculation Period: To be determined
Floating Rate Option: USD-LIBOR-BBA
Floating Amount: To be determined in accordance with the following formula:
Scale Factor*Floating Rate Option*Notional Amount*Floating Rate Day Count Fraction
Reference Number: FXNSC9757
Newcastle Mortgage Securities Trust 2007-1
July 12, 2007
Page 3 of 7
Designated Maturity: One month
Spread: None
Floating Rate Day
Count Fraction: Actual/360
Reset Dates: The first day of each Calculation Period
Scale Factor 250
Compounding: Inapplicable
Business Days: New York
Business Day Convention: Following
Additional Amount: In connection with entering into this Transaction USD 5,687,000. is payable by Party B to
Party A on July 12, 2007.
Calculation Agent: Party A
NEITHER THE BEAR XXXXXXX COMPANIES INC. NOR ANY SUBSIDIARY OR AFFILIATE OF THE BEAR XXXXXXX COMPANIES
INC. OTHER THAN PARTY A IS AN OBLIGOR OR A CREDIT SUPPORT PROVIDER ON THIS TRANSACTION.
3. Account Details and
Settlement Information: Payments to PARTY A:
Citibank, N.A., New York
ABA Number: 000-0000-00, for the account of
Bear, Xxxxxxx Securities Corp.
Account Number: 0925-3186, for further credit to
Bear Xxxxxxx Financial Products Inc.
Sub-account Number: 102-04654-1-3
Attention: Derivatives Department
Payments to Party B:
Attention: Xxxxx Fargo Bank, N.A.
ABA # 000000000
Account Name: SAS Clearing
Account #: 3970771416
FFC: Newcastle 2007-1 # 53162601
Additional Provisions:
Non-Reliance. Each party represents to the other party that (a) it has not received and is not relying upon any legal, tax, regulatory,
accounting or other advice (whether written or oral) of the other party regarding this Transaction, other than representations expressly
made by that other party in this Confirmation and in the Master Agreement and (b) in respect of this Transaction, (i) it has the
capacity to evaluate (internally or through independent professional advice) this Transaction and has made its own decision to enter
into this Transaction and (ii) it understands the terms, conditions and risks of this Transaction and is willing to assume (financially
and otherwise) those risks. Party B acknowledges that Party A has advised Party B to consult its own tax, accounting and legal advisors
in connection with this Transaction evidenced by this Confirmation and that the Party B has done so.
Reference Number: FXNSC9757
Newcastle Mortgage Securities Trust 2007-1
July 12, 2007
Page 4 of 7
This Confirmation may be executed in several counterparts, each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
Party B hereby agrees to check this Confirmation and to confirm that the foregoing correctly sets forth the terms of the Transaction by
signing in the space provided below and returning to Party A a facsimile of the fully-executed Confirmation to 000-000-0000. For
inquiries regarding U.S. Transactions, please contact Derivatives Documentation by telephone at 000-000-0000. For all other inquiries
please contact Derivatives Documentation by telephone at 000-0-000-0000. Originals will be provided for your execution upon your request.
Reference Number: FXNSC9757
Newcastle Mortgage Securities Trust 2007-1
July 12, 2007
Page 5 of 7
We are very pleased to have executed this Transaction with you and we look forward to completing other transactions with you in the near
future.
Very truly yours,
BEAR XXXXXXX FINANCIAL PRODUCTS INC.
By: _______________________________
Name:
Title:
Party B, acting through its duly authorized signatory, xxxxxx agrees to, accepts and confirms the terms of the foregoing as of the Trade
Date.
NEWCASTLE MORTGAGE SECURITIES TRUST 2007-1
By: Wilmington Trust Company, not in its individual capacity, but
solely as Owner Trustee
By: _______________________________
Name:
Title:
am
Reference Number: FXNSC9757
Newcastle Mortgage Securities Trust 2007-1
July 12, 2007
Page 6 of 7
SCHEDULE I
Notional Amount
From and including To but excluding (USD)
________________________________________________________________________________________________
Effective Date 7/25/2007 3,917,896.00
7/25/2007 8/25/2007 3,865,100.00
8/25/2007 9/25/2007 3,821,548.00
9/25/2007 10/25/2007 3,771,720.00
10/25/2007 11/25/2007 3,717,232.00
11/25/2007 12/25/2007 3,657,696.00
12/25/2007 1/25/2008 3,591,412.00
1/25/2008 2/25/2008 3,517,848.00
2/25/2008 3/25/2008 3,434,968.00
3/25/2008 4/25/2008 3,344,504.00
4/25/2008 5/25/2008 3,241,840.00
5/25/2008 6/25/2008 3,132,264.00
6/25/2008 7/25/2008 3,028,420.00
7/25/2008 8/25/2008 2,931,272.00
8/25/2008 9/25/2008 2,839,624.00
9/25/2008 10/25/2008 2,753,696.00
10/25/2008 11/25/2008 2,669,796.00
11/25/2008 12/25/2008 2,588,264.00
12/25/2008 1/25/2009 2,503,764.00
1/25/2009 2/25/2009 2,409,984.00
2/25/2009 3/25/2009 2,286,284.00
3/25/2009 4/25/2009 2,034,520.00
4/25/2009 5/25/2009 1,523,264.00
5/25/2009 6/25/2009 1,287,472.00
6/25/2009 7/25/2009 1,248,396.00
7/25/2009 8/25/2009 1,212,276.00
8/25/2009 9/25/2009 1,178,344.00
9/25/2009 10/25/2009 1,146,624.00
10/25/2009 11/25/2009 1,115,884.00
11/25/2009 12/25/2009 1,087,576.00
12/25/2009 1/25/2010 1,059,416.00
1/25/2010 2/25/2010 1,011,980.00
2/25/2010 3/25/2010 936,316.00
3/25/2010 4/25/2010 835,272.00
4/25/2010 5/25/2010 685,924.00
5/25/2010 6/25/2010 614,292.00
6/25/2010 7/25/2010 595,756.00
7/25/2010 8/25/2010 578,388.00
8/25/2010 9/25/2010 561,632.00
9/25/2010 10/25/2010 546,048.00
10/25/2010 11/25/2010 531,000.00
11/25/2010 12/25/2010 517,652.00
12/25/2010 1/25/2011 504,708.00
1/25/2011 2/25/2011 492,416.00
2/25/2011 3/25/2011 480,200.00
Reference Number: FXNSC9757
Newcastle Mortgage Securities Trust 2007-1
July 12, 2007
Page 7 of 7
3/25/2011 4/25/2011 469,816.00
4/25/2011 5/25/2011 459,136.00
5/25/2011 6/25/2011 447,200.00
6/25/2011 7/25/2011 435,944.00
7/25/2011 8/25/2011 424,968.00
8/25/2011 9/25/2011 414,140.00
9/25/2011 10/25/2011 403,816.00
10/25/2011 11/25/2011 393,352.00
11/25/2011 12/25/2011 383,960.00
12/25/2011 1/25/2012 374,824.00
1/25/2012 2/25/2012 365,880.00
2/25/2012 3/25/2012 355,768.00
3/25/2012 4/25/2012 344,936.00
4/25/2012 5/25/2012 335,160.00
5/25/2012 6/25/2012 325,120.00
6/25/2012 7/25/2012 316,912.00
7/25/2012 8/25/2012 308,796.00
8/25/2012 9/25/2012 300,728.00
9/25/2012 10/25/2012 293,012.00
10/25/2012 11/25/2012 285,208.00
11/25/2012 12/25/2012 278,208.00
12/25/2012 1/25/2013 271,352.00
1/25/2013 2/25/2013 264,800.00
2/25/2013 Termination Date 258,224.00
BEAR XXXXXXX FINANCIAL PRODUCTS INC.
000 XXXXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
000-000-0000
DATE: July 12, 2007
TO: Newcastle Mortgage Securities Trust 2007-1
ATTENTION: c/o Fortress Investment Group LLC
Xxx Xxxx
TELEPHONE: 000-000-0000
FACSIMILE: 000-000-0000
FROM: Derivatives Documentation
TELEPHONE: 000-000-0000
FACSIMILE: 000-000-0000
SUBJECT: Fixed Income Derivatives Confirmation
REFERENCE NUMBER(S): FXNCC9759
The purpose of this letter agreement is to confirm the terms and conditions of the Transaction entered into on the Trade Date specified
below (the "Transaction") between Bear Xxxxxxx Financial Products Inc. ("Party A") and Newcastle Mortgage Securities Trust 2007-1
("Party B"). This letter agreement constitutes the sole and complete "Confirmation," as referred to in the Master Agreement specified
below, with respect to this Transaction.
1. This Confirmation is subject to and incorporates the 2000 ISDA Definitions (the "Definitions"), as published by the International
Swaps and Derivatives Association, Inc. ("ISDA"). This Confirmation supplements, forms a part of and is subject to the ISDA Master
Agreement dated as of July 12, 2007, between Party A and Party B (the agreement, as amended and supplemented from time to time, being
referred to herein as the "Master Agreement"). All provisions contained in, or incorporated by reference to, the Master Agreement
shall govern the Transaction referenced in this Confirmation except as expressly modified herein. In the event of any inconsistency
between this Confirmation and the Definitions or Master Agreement, this Confirmation shall prevail.
2. The terms of the particular Transaction to which this Confirmation relates are as follows:
Type of Transaction: Rate Cap
Notional Amount: With respect to any Calculation Period, the Notional Amount set
forth for such period in Schedule I attached hereto.
Trade Date: June 29, 2007
Effective Date: April 27, 2009
Termination Date: June 25, 2014, subject to adjustment in accordance with the Business Day Convention.
Fixed Amount (Premium):
Reference Number: FXNCC9759
Newcastle Mortgage Securities Trust 2007-1
July 12, 2007
Page 2 of 6
Fixed Rate Payer: Party B
Fixed Rate Payer
Payment Date: July 12, 2007
Fixed Amount: USD 93,000
Floating Amounts:
Floating Rate Payer: Party A
Cap Rate: With respect to any Calculation Period, the Cap Rate set forth for such period in
Schedule I attached hereto.
Floating Rate Payer
Payment Dates: Early Payment shall be applicable. One Business Day prior to each Floating Rate Payer
Period End Date.
Floating Rate Payer
Period End Dates: The 25th calendar day of each month during the Term of this Transaction, commencing May 25,
2009 and ending on the Termination Date, subject to adjustment in accordance with the
Business Day Convention.
Floating Rate Option: USD-LIBOR-BBA
Floating Amount: To be determined in accordance with the following formula:
Scale Factor*Floating Rate Option*Notional Amount*Floating Rate Day Count Fraction
Designated Maturity: One month
Floating Rate Day
Count Fraction: Actual/360
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable
Scale Factor: 250
Business Days: New York
Business Day Convention: Following
Calculation Agent: Party A
Reference Number: FXNCC9759
Newcastle Mortgage Securities Trust 2007-1
July 12, 2007
Page 3 of 6
NEITHER THE BEAR XXXXXXX COMPANIES INC. NOR ANY SUBSIDIARY OR AFFILIATE OF THE BEAR XXXXXXX COMPANIES
INC. OTHER THAN PARTY A IS AN OBLIGOR OR A CREDIT SUPPORT PROVIDER ON THIS TRANSACTION.
3. Account Details and
Settlement Information: Payments to Party A:
Citibank, N.A., New York
ABA Number: 000-0000-00, for the account of
Bear, Xxxxxxx Securities Corp.
Account Number: 0925-3186, for further credit to
Bear Xxxxxxx Financial Products Inc.
Sub-account Number: 102-04654-1-3
Attention: Derivatives Department
Payments to Party B:
Attention: Xxxxx Fargo Bank, N.A.
ABA # 000000000
Account Name: SAS Clearing
Account #: 3970771416
FFC: Newcastle 2007-1 # 53162602
Additional Provisions:
Non-Reliance. Each party represents to the other party that (a) it has not received and is not relying upon any legal, tax, regulatory,
accounting or other advice (whether written or oral) of the other party regarding this Transaction, other than representations expressly
made by that other party in this Confirmation and in the Master Agreement and (b) in respect of this Transaction, (i) it has the
capacity to evaluate (internally or through independent professional advice) this Transaction and has made its own decision to enter
into this Transaction and (ii) it understands the terms, conditions and risks of this Transaction and is willing to assume (financially
and otherwise) those risks. Party B acknowledges that Party A has advised Party B to consult its own tax, accounting and legal advisors
in connection with this Transaction evidenced by this Confirmation and that the Party B has done so.
Reference Number: FXNCC9759
Newcastle Mortgage Securities Trust 2007-1
July 12, 2007
Page 4 of 6
This Confirmation may be executed in several counterparts, each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
Party B hereby agrees to check this Confirmation and to confirm that the foregoing correctly sets forth the terms of the Transaction by
signing in the space provided below and returning to Party A a facsimile of the fully-executed Confirmation to 000-000-0000. For
inquiries regarding U.S. Transactions, please contact Derivatives Documentation by telephone at 000-000-0000. For all other inquiries
please contact Derivatives Documentation by telephone at 000-0-000-0000. Originals will be provided for your execution upon your request.
We are very pleased to have executed this Transaction with you and we look forward to completing other transactions with you in the near
future.
Very truly yours,
BEAR XXXXXXX FINANCIAL PRODUCTS INC.
By: _______________________________
Name:
Title:
Party B, acting through its duly authorized signatory, xxxxxx agrees to, accepts and confirms the terms of the foregoing as of the Trade
Date.
NEWCASTLE MORTGAGE SECURITIES TRUST 2007-1
By: Wilmington Trust Company, not in its individual capacity, but solely as Owner Trustee
By: _______________________________
Name:
Title:
am
Reference Number: FXNCC9759
Newcastle Mortgage Securities Trust 2007-1
July 12, 2007
Page 5 of 6
SCHEDULE I
Notional Amount
From and including To but excluding (USD) Cap Rate
_____________________________________________________________________________________________________________________
Effective Date 25-May-09 342,908.99 8.17%
25-May-09 25-Jun-09 479,062.63 8.16%
25-Jun-09 25-Jul-09 446,769.81 8.18%
25-Jul-09 25-Aug-09 425,563.05 8.63%
25-Aug-09 25-Sep-09 403,970.56 8.80%
25-Sep-09 25-Oct-09 381,674.14 8.79%
25-Oct-09 25-Nov-09 359,864.27 8.79%
25-Nov-09 25-Dec-09 337,048.64 8.79%
25-Dec-09 25-Jan-10 315,472.50 8.83%
25-Jan-10 25-Feb-10 314,521.53 9.53%
25-Feb-10 25-Mar-10 343,126.03 9.91%
25-Mar-10 25-Apr-10 398,414.05 9.91%
25-Apr-10 25-May-10 503,243.49 9.91%
25-May-10 25-Jun-10 531,561.17 9.90%
25-Jun-10 25-Jul-10 507,954.08 9.90%
25-Jul-10 25-Aug-10 525,322.08 10.02%
25-Aug-10 25-Sep-10 542,078.08 10.12%
25-Sep-10 25-Oct-10 557,001.37 10.11%
25-Oct-10 25-Nov-10 564,184.98 10.10%
25-Nov-10 25-Dec-10 557,812.63 10.10%
25-Dec-10 25-Jan-11 542,126.61 10.10%
25-Jan-11 25-Feb-11 526,560.68 10.21%
25-Feb-11 25-Mar-11 511,669.71 10.31%
25-Mar-11 25-Apr-11 495,677.19 10.30%
25-Apr-11 25-May-11 480,691.15 10.29%
25-May-11 25-Jun-11 467,652.19 10.28%
25-Jun-11 25-Jul-11 454,605.45 10.27%
25-Jul-11 25-Aug-11 441,932.57 10.26%
25-Aug-11 25-Sep-11 429,747.73 10.25%
25-Sep-11 25-Oct-11 417,677.57 10.24%
25-Oct-11 25-Nov-11 406,349.23 10.23%
25-Nov-11 25-Dec-11 394,534.31 10.22%
25-Dec-11 25-Jan-12 383,032.86 10.21%
25-Jan-12 25-Feb-12 371,891.26 10.22%
25-Feb-12 25-Mar-12 362,447.80 10.23%
25-Mar-12 25-Apr-12 354,245.17 10.22%
25-Apr-12 25-May-12 345,496.97 10.21%
25-May-12 25-Jun-12 337,509.59 10.20%
25-Jun-12 25-Jul-12 328,173.50 10.19%
25-Jul-12 25-Aug-12 319,215.58 10.19%
25-Aug-12 25-Sep-12 310,667.09 10.19%
25-Sep-12 25-Oct-12 302,211.55 10.18%
25-Oct-12 25-Nov-12 294,276.90 10.17%
25-Nov-12 25-Dec-12 285,959.38 10.16%
25-Dec-12 25-Jan-13 277,907.57 10.15%
Reference Number: FXNCC9759
Newcastle Mortgage Securities Trust 2007-1
July 12, 2007
Page 6 of 6
25-Jan-13 25-Feb-13 269,950.36 10.15%
25-Feb-13 25-Mar-13 262,404.94 10.15%
25-Mar-13 25-Apr-13 506,884.80 10.14%
25-Apr-13 25-May-13 493,507.72 10.13%
25-May-13 25-Jun-13 480,487.77 10.12%
25-Jun-13 25-Jul-13 467,815.27 10.11%
25-Jul-13 25-Aug-13 455,480.83 10.10%
25-Aug-13 25-Sep-13 443,475.30 10.09%
25-Sep-13 25-Oct-13 431,789.79 10.08%
25-Oct-13 25-Nov-13 420,415.65 10.06%
25-Nov-13 25-Dec-13 409,344.47 10.05%
25-Dec-13 25-Jan-14 398,568.06 10.04%
25-Jan-14 25-Feb-14 388,078.48 10.03%
25-Feb-14 25-Mar-14 377,867.98 10.02%
25-Mar-14 25-Apr-14 367,929.04 10.01%
25-Apr-14 25-May-14 358,254.33 10.00%
25-May-14 Termination Date 348,836.73 9.99%
(Multicurrency - Cross Border)
ISDA®
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of July 12, 2007
BEAR XXXXXXX FINANCIAL PRODUCTS INC. and NEWCASTLE MORTGAGE SECURITIES TRUST 2007-1
have entered and/or anticipate entering into one of more transactions (each a "Transaction") that are or will be governed by this
Master Agreement, which includes the schedule (the "Schedule"), and the documents and other confirming evidence (each a
"Confirmation") exchanged between the parties confirming those Transactions.
Accordingly, the parties agree as follows: —
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will have the meanings therein specified for the purpose
of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions of the Schedule and the other provisions of this
Master Agreement, the Schedule will prevail. In the event of any inconsistency between the provisions of any Confirmation and this
Master Agreement (including the Schedule), such Confirmation will prevail for the purpose of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the fact that this Master Agreement and all
Confirmations form a single agreement between the parties (collectively referred to as this "Agreement"), and the parties would not
otherwise enter into any Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each Confirmation to be made by it, subject to the other
provisions of this Agreement.
(ii) Payments under this Agreement will be made on the due date for value on that date in the place of the account
specified in the relevant Confirmation or otherwise pursuant to this Agreement, in freely transferable funds and in the
manner customary for payments in the required currency. Where settlement is by delivery (that is, other than by payment),
such delivery will be made for receipt on the due date in the manner customary for the relevant obligation unless otherwise
specified in the relevant Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to (1) the condition precedent that no Event of
Default or Potential Event of Default with respect to the other party has occurred and is continuing, (2) the condition
precedent that no Early Termination Date in respect of the relevant Transaction has occurred or been effectively designated
and (3) each other applicable condition precedent specified in this Agreement.
(b) Change of Account. Either party may change its account for receiving a payment or delivery by giving notice to the other
party at least five Local Business Days prior to the scheduled date for the payment or delivery to which such change applies unless
such other party gives timely notice of a reasonable objection to such change.
(c) Netting. If on any date amounts would otherwise be payable: —
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other. then, on such date, each party's obligation to make payment of any such amount will be automatically
satisfied and discharged and, if the aggregate amount that would otherwise have been payable by one party exceeds the aggregate
amount that would otherwise have been payable by the other party, replaced by an obligation upon the party by whom the larger
aggregate amount would have been payable to pay to the other party the excess of the larger aggregate amount over the smaller
aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount will be determined in respect of all amounts payable
on the same date in the same currency in respect of such Transactions, regardless of whether such amounts are payable in respect of
the same Transaction. The election may be made in the Schedule or a Confirmation by specifying that subparagraph (ii) above will not
apply to the Transactions identified as being subject to the election, together with the starting date (in which case subparagraph
(ii) above will not, or will cease to, apply to such Transactions from such date). This election may be made separately for different
groups of Transactions and will apply separately to each pairing of Offices through which the parties make and receive payments or
deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made without any deduction or withholding for or on account of
any Tax unless such deduction or withholding is required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, then in effect. If a party is so required to deduct or withhold, then that party ("X")
will: —
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to be deducted or withheld (including the full
amount required to be deducted or withheld from any additional amount paid by X to Y under this Section 2(d))
promptly upon the earlier of determining that such deduction or withholding is required or receiving notice that
such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified copy), or other documentation reasonably
acceptable to Y, evidencing such payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to the payment to which Y is otherwise entitled
under this Agreement, such additional amount as is necessary to ensure that the net amount actually received by Y
(free and clear of Indemnifiable Taxes. whether assessed against X or Y) will equal ft 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 of 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.
4
(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax levied or imposed upon it or in respect of its
execution or performance of this Agreement by a jurisdiction in which it is incorporated,
organised, managed and controlled. or considered to have its seat, or in which a branch or office through which it is acting for the
purpose of this Agreement is located ("Stamp Tax Jurisdiction") and will indemnify the other party against any Stamp Tax levied or
imposed upon the other party or in respect of the other party's execution or performance of this Agreement by any such Stamp Tax
Jurisdiction which is not also a Stamp Tax Jurisdiction with respect to the other party.
5. Events or 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 Specific 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); of
(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)(1) or a Tax Event occurs and
there is only one Affected Party, or if a Tax Event Upon Merger occurs and the Burdened Party is the Affected Party, the
Affected Party will, as a condition to its right to designate an Early Termination Date under Section 6(b)(iv), use all
reasonable efforts (which will not require such party to incur a loss, excluding immaterial, incidental expenses) to
transfer within 20 days after it gives notice under Section 6(b)(i) all its rights and obligations under this Agreement in
respect of the Affected Transactions to another of its Offices or Affiliates so that such Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will give notice to the other party to that effect within such
20 day period, whereupon the other party may effect such a transfer within 30 days after the notice is given under Section
6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be subject to and conditional upon the prior written consent
of the other party, which consent will not be withheld if such other party's policies in effect at such time would permit it
to enter into transactions with the transferee on the terms proposed.
(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.
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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 xxxxx, 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 all
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
Act 1982 or any modification, extension or re-enactment thereof for the time being in force) nor will the bringing of Proceedings in
any one or more jurisdictions preclude the bringing of Proceedings in any other jurisdiction.
(c) Service of Process. Each party irrevocably appoints the Process Agent (if any) specified opposite its name in the Schedule
to receive, for it and on its behalf, service of process in any Proceedings. If for any
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(c)(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.
"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.
16
"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
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.
17
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.
BEAR XXXXXXX FINANCIAL PRODUCTS INC. NEWCASTLE MORTGAGE SECURITIES TRUST 2007-1
(Name of Party) By: Wilmington Trust Company, not in its
individual capacity, but solely as Owner Trustee
(Name of Party)
By: _________________________________________ By: ____________________________________________
Name: Name:
Title: Title:
Date: Date:
SCHEDULE
to the
ISDA®
International Swaps and Derivatives Association, Inc.
MASTER AGREEMENT
dated as of July 12, 2007
between BEAR XXXXXXX FINANCIAL PRODUCTS INC., a corporation organized under the laws of Delaware ("Party A"), and NEWCASTLE MORTGAGE
SECURITIES TRUST 2007-1 a statutory trust organized under the laws of Delaware ("Party B").
Reference is hereby made to the Indenture, dated as of July 12, 2007, among Newcastle Mortgage Securities Trust 2007-1, as issuing
entity ("Issuing Entity"), Xxxxx Fargo Bank, N.A., as securities administrator ("Securities Administrator") and The Bank of New York,
as indenture trustee ("Indenture Trustee") (the "Indenture").
Part 1. Termination Provisions.
For the purposes of this Agreement:-
(a) "Specified Entity" will not apply to Party A or Party B for any purpose.
(b) "Specified Transaction" will have the meaning specified in Section 14.
(c) Events of Default.
-
The statement below that an Event of Default will apply to a specific party means that upon the occurrence of such an Event of
Default with respect to such party, the other party shall have the rights of a Non-defaulting Party under Section 6 of this
Agreement; conversely, the statement below that such event will not apply to a specific party means that the other party shall
not have such rights.
(i) The "Failure to Pay or Deliver" provisions of Section 5(a)(i) will apply to Party A and will apply to Party B;
provided, however, that notwithstanding anything to the contrary in Section 5(a)(i) or in Paragraph 7 any failure by
Party A to comply with or perform any obligation to be complied with or performed by Party A under the Credit Support
Annex shall not constitute an Event of Default under Section 5(a)(i) unless a Moody's Second Trigger Downgrade Event
has occurred and is continuing and at least 30 Local Business Days have elapsed since such Moody's Second Trigger
Downgrade Event first occurred.
(ii) The "Breach of Agreement" provisions of Section 5(a)(ii) will apply to Party A and will not apply to Party B.
(iii) The "Credit Support Default" provisions of Section 5(a)(iii) will apply to Party A and will not apply to Party B
except that Section 5(a)(iii)(1) will apply to Party B solely in respect of Party B's obligations under Paragraph
3(b); provided, however, that notwithstanding anything to the contrary in Section 5(a)(iii)(1), any failure by Party A
to comply with or perform any obligation to be complied with or performed by Party A under the Credit Support Annex
shall not constitute an Event of Default under Section 5(a)(iii) unless a Moody's Second Trigger Downgrade Event has
occurred and is continuing and at least 30 Local Business Days have elapsed since such Moody's Second Trigger
Downgrade Event first occurred.
(iv) The "Misrepresentation" provisions of Section 5(a)(iv) will apply to Party A and will not apply to Party B.
(v) The "Default under Specified Transaction" provisions of Section 5(a)(v) will apply to Party A and will not apply to
Party B.
(vi) The "Cross Default" provisions of Section 5(a)(vi) will apply to Party A and will not apply to Party B. For purposes
of Section 5(a)(vi), solely with respect to Party A:
"Specified Indebtedness" will have the meaning specified in Section 14.
"Threshold Amount" means USD 100,000,000.
(vii) The "Bankruptcy" provisions of Section 5(a)(vii) will apply to Party A and will apply to Party B; provided, however,
that, for purposes of applying Section 5(a)(vii) to Party B: (A) Section 5(a)(vii)(2) shall not apply, (B) Section
5(a)(vii)(3) shall not apply to any assignment, arrangement or composition that is effected by or pursuant to the
Indenture, (C) Section 5(a)(vii)(4) shall not apply to a proceeding instituted, or a petition presented, by Party A or
any of its Affiliates (for purposes of Section 5(a)(vii)(4), Affiliate shall have the meaning set forth in Section 14,
notwithstanding anything to the contrary in this Agreement), (D) Section 5(a)(vii)(6) shall not apply to any
appointment that is effected by or pursuant to the Indenture, or any appointment to which Party B has not yet become
subject; (E) Section 5(a)(vii) (7) shall not apply; (F) Section 5(a)(vii)(8) shall apply only to the extent of any
event which has an effect analogous to any of the events specified in clauses (1), (3), (4), (5) or (6) of Section
5(a)(vii), in each case as modified in this Part 1(c)(vii), and (G) Section 5(a)(vii)(9) shall not apply.
(viii) The "Merger Without Assumption" provisions of Section 5(a)(viii) will apply to Party A and will apply to Party B.
(d) Termination Events.
The statement below that a Termination Event will apply to a specific party means that upon the occurrence of such a
Termination Event, if such specific party is the Affected Party with respect to a Tax Event, the Burdened Party with respect to
a Tax Event Upon Merger (except as noted below) or the non-Affected Party with respect to a Credit Event Upon Merger, as the
case may be, such specific party shall have the right to designate an Early Termination Date in accordance with Section 6 of
this Agreement; conversely, the statement below that such an event will not apply to a specific party means that such party
shall not have such right; provided, however, with respect to "Illegality" the statement that such event will apply to a
specific party means that upon the occurrence of such a Termination Event with respect to such party, either party shall have
the right to designate an Early Termination Date in accordance with Section 6 of this Agreement.
(i) The "Illegality" provisions of Section 5(b)(i) will apply to Party A and will apply to Party B.
(ii) The "Tax Event" provisions of Section 5(b)(ii) will apply to Party A and will apply to Party B.
(iii) The "Tax Event Upon Merger" provisions of Section 5(b)(iii) will apply to Party A and will apply to Party B, provided
that Party A shall not be entitled to designate an Early Termination Date by reason of a Tax Event upon Merger in
respect of which it is the Affected Party.
(iv) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) will not apply to Party A and will not apply to Party B.
(e) The "Automatic Early Termination" provision of Section 6(a) will not apply to Party A and will not apply to Party B.
(f) Payments on Early Termination. For the purpose of Section 6(e) of this Agreement:
(i) Market Quotation and the Second Method will apply, provided, however, that, notwithstanding anything to the contrary
in this Agreement, if an Early Termination Date has been designated as a result of a Derivative Provider Trigger
Event, the following provisions will apply:
(A) Section 6(e) is hereby amended by inserting on the first line thereof the words "or is effectively
designated" after "If an Early Termination Date occurs";
(B) The definition of Market Quotation in Section 14 shall be deleted in its entirety and replaced with the
following:
"Market Quotation" means, with respect to one or more Terminated Transactions, and a party making the
determination, an amount determined on the basis of one or more Firm Offers from Reference Market-makers that
are Eligible Replacements. Each Firm Offer will be (1) for an amount that would be paid to Party B
(expressed as a negative number) or by Party B (expressed as a positive number) in consideration of an
agreement between Party B and such Reference Market-maker to enter into a Replacement Transaction, and (2)
made on the basis that Unpaid Amounts in respect of the Terminated Transaction or group of Transactions are
to be excluded but, without limitation, any payment or delivery that would, but for the relevant Early
Termination Date, have been required (assuming satisfaction of each applicable condition precedent) after
that Early Termination Date are to be included. The party making the determination (or its agent) will
request each Reference Market-maker that is an Eligible Replacement to provide its Firm Offer to the extent
reasonably practicable as of the same day and time (without regard to different time zones) on or as soon as
reasonably practicable after the designation or occurrence of the relevant Early Termination Date. The day
and time as of which those Firm Offers are to be provided (the "bid time") will be selected in good faith by
the party obliged to make a determination under Section 6(e), and, if each party is so obliged, after
consultation with the other. If at least one Firm Offer from an Approved Replacement (which, if accepted,
would determine the Market Quotation) is provided at the bid time, the Market Quotation will be the Firm
Offer (among such Firm Offers as specified in clause (C) below) actually accepted by Party B no later than
the Business Day immediately preceding the Early Termination Date. If no Firm Offer from an Approved
Replacement (which, if accepted, would determine the Market Quotation) is provided at the bid time, it will
be deemed that the Market Quotation in respect of such Terminated Transaction or group of Transactions cannot
be determined.
(C) If more than one Firm Offer from an Approved Replacement (which, if accepted, would determine the Market
Quotation) is provided at the bid time, Party B shall accept the Firm Offer (among such Firm Offers) which
would require either (x) the lowest payment by Party B to the Reference Market-maker, to the extent Party B
would be required to make a payment to the Reference Market-maker or (y) the highest payment from the
Reference Market-maker to Party B, to the extent the Reference Market-maker would be required to make a
payment to Party B. If only one Firm Offer from an Approved Replacement (which, if accepted, would determine
the Market Quotation) is provided at the bid time, Party B shall accept such Firm Offer.
(D) If Party B requests Party A in writing to obtain Market Quotations, Party A shall use its reasonable efforts
to do so.
(E) If the Settlement Amount is a negative number, Section 6(e)(i)(3) shall be deleted in its entirety and
replaced with the following:
"(3) Second Method and Market Quotation. If the Second Method and Market Quotation apply, (I) Party B shall
pay to Party A an amount equal to the absolute value of the Settlement Amount in respect of the Terminated
Transactions, (II) Party B shall pay to Party A the Termination Currency Equivalent of the Unpaid Amounts
owing to Party A and (III) Party A shall pay to Party B the Termination Currency Equivalent of the Unpaid
Amounts owing to Party B; provided, however, that (x) the amounts payable under the immediately preceding
clauses (II) and (III) shall be subject to netting in accordance with Section 2(c) of this Agreement and (y)
notwithstanding any other provision of this Agreement, any amount payable by Party A under the immediately
preceding clause (III) shall not be netted against any amount payable by Party B under the immediately
preceding clause (I)."
(F) In determining whether or not a Firm Offer satisfies clause (B)(y) of the definition of Replacement
Transaction and whether or not a proposed transfer satisfies clause (e)(B)(y) of the definition of Permitted
Transfer, Party B shall act in a commercially reasonable manner.
(g) "Termination Currency" means USD.
(h) Additional Termination Events. Additional Termination Events will apply as provided in Part 5(c).
Part 2. Tax Matters.
(a) Tax Representations.
(i) Payer Representations. For the purpose of Section 3(e) of this Agreement:
(A) Party A makes the following representation(s):
It is not required by any applicable law, as modified by the practice of any relevant governmental revenue
authority, of any Relevant Jurisdiction to make any deduction or withholding for or on account of any Tax
from any payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to be made by
it to the other party under this Agreement.
In making this representation, it may rely on:
(i) the accuracy of any representations made by the other party pursuant to Section 3(f) of this
Agreement;
(ii) the satisfaction of the agreement contained in Section 4(a)(i) or 4(a)(iii) of this Agreement and
the accuracy and effectiveness of any document provided by the other party pursuant to Section
4(a)(i) or 4(a)(iii) of this Agreement; and
(iii) the satisfaction of the agreement of the other party contained in Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation where reliance is placed on clause
(ii) and the other party does not deliver a form or document under Section 4(a)(iii) by reason of
material prejudice to its legal or commercial position.
(B) Party B makes the following representation(s):
None.
(ii) Payee Representations. For the purpose of Section 3(f) of this Agreement:
(A) Party A makes the following representation(s):
Party A is a corporation organized under the laws of the State of Delaware and its U.S. taxpayer
identification number is 00-0000000.
(B) Party B makes the following representation(s):
None.
(b) Tax Provisions.
(i) Gross Up. Section 2(d)(i)(4) shall not apply to Party B as X, such that Party B shall not be required to pay any
additional amounts referred to therein.
(ii) Indemnifiable Tax. Notwithstanding the definition of "Indemnifiable Tax" in Section 14 of this Agreement, all Taxes in
relation to payments by Party A shall be Indemnifiable Taxes (including any Tax imposed in relation to a Credit
Support Document or in relation to any payment thereunder) unless such Taxes (i) are assessed directly against Party B
and not by deduction or withholding by Party A or (ii) arise as a result of a Change in Tax Law (in which case such
Tax shall be an Indemnifiable Tax only if such Tax satisfies the definition of Indemnifiable Tax provided in Section
14). In relation to payments by Party B, no Tax shall be an Indemnifiable Tax.
Part 3. Agreement to Deliver Documents.
(a) For the purpose of Section 4(a)(i), tax forms, documents, or Notes to be delivered are:
Party required to Form/Document/ Date by which to
deliver document Certificate be delivered
Party A An original properly completed and executed (i) on or before the first payment date
United States Internal Revenue Service Form W-9 under this Agreement, including any Credit
(or any successor thereto) with respect to any Support Document, (ii) promptly upon the
payments received or to be received by Party A reasonable demand by Party B, (iii) prior to
that eliminates U.S. federal withholding and the expiration or obsolescence of any
backup withholding Tax on payments to Party A previously delivered form, and (iv) promptly
under this Agreement. upon the information on any such previously
delivered form becoming inaccurate or
incorrect.
Party B (i) an original properly completed and executed (i) on or before the first payment date
United States Internal Revenue Service Form W-9 under this Agreement, including any Credit
(or any successor thereto) with respect to any Support Document, (ii) in the case of a tax
payments received or to be received by the certification form other than a Form W-9,
initial beneficial owner of payments to Party B before December 31 of each third succeeding
that eliminates U.S. federal withholding and calendar year, (iii) promptly upon the
backup withholding Tax on payments to Party B reasonable demand by Party B, (iv) prior to
under this Agreement, and (ii) thereafter, the the expiration or obsolescence of any
appropriate tax certification form (i.e., IRS previously delivered form, and (v) promptly
Form W-9 or IRS Form W-8BEN, W-8IMY, W-8EXP or upon the information on any such previously
W-8ECI, as applicable (or any successor form delivered form becoming inaccurate or
thereto)) with respect to any payments received incorrect.
or to be received by the beneficial owner of
payments to Party B under this Agreement from
time to time.
(b) For the purpose of Section 4(a)(ii), other documents to be delivered are:
Party required to Form/Document/ Date by which to Covered by Section
deliver document Certificate be delivered 3(d) Representation
Party A and Any documents required by the receiving party Upon the execution and delivery Yes
Party B to evidence the authority of the delivering of this Agreement
party or its Credit Support Provider, if any,
for it to execute and deliver the Agreement,
each Confirmation, and any Credit Support
Documents to which it is a party, and to
evidence the authority of the delivering party
or its Credit Support Provider to perform its
obligations under the Agreement, each
Confirmation and any Credit Support Document,
as the case may be
Party A and A certificate of an authorized officer of the Upon the execution and delivery Yes
Party B party, as to the incumbency and authority of of this Agreement
the respective officers of the party signing
the Agreement, each Confirmation, and any
relevant Credit Support Document, as the case
may be
Party A Annual Report of Party A containing Upon request by Party B Yes
consolidated financial statements certified by
independent certified public accountants and
prepared in accordance with generally accepted
accounting principles in the country in which
Party A is organized
Party A Quarterly Financial Statements of Party A Upon request by Party B Yes
containing unaudited, consolidated financial
statements of Party A's fiscal quarter
prepared in accordance with generally accepted
accounting principles in the country in which
Party A is organized
Party A and An opinion of counsel of such party regarding Upon the execution and delivery No
Party B the enforceability of this Agreement in a form of this Agreement
reasonably satisfactory to the other party.
Party B An executed copy of the Indenture Promptly upon filing of such No
agreement with the U.S.
Securities and Exchange Commission
Part 4. Miscellaneous.
(a) Address for Notices: For the purposes of Section 12(a) of this Agreement:
Address for notices or communications to Party A:
Address: 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: DPC Manager
Facsimile: (000) 000-0000
with a copy to:
Address: One Metrotech Center North, Brooklyn, New York 11201
Attention: Derivative Operations 7th Floor
Facsimile: (000) 000-0000
(For all purposes)
Address for notices or communications to Party B:
Address: Fortress Investment Group LLC
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attention: Xxx Xxxx
Xxxxxxxxx: (000) 000-0000
Phone: (000) 000-0000
with a copy to:
Address: Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Client Manager - Newcastle 2007-1
Facsimile: (000) 000-0000
Phone: (000) 000-0000
(For all purposes)
(b) Process Agent. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Not applicable.
Party B appoints as its Process Agent: Not applicable.
(c) Offices. The provisions of Section 10(a) will apply to this Agreement; neither Party A nor Party B has any Offices other than
as set forth in the Notices Section.
(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.
Party A: The Credit Support Annex, and any guarantee in support of Party A's obligations under this Agreement.
Party B: The Credit Support Annex.
(g) Credit Support Provider.
Party A: The guarantor under any guarantee in support of Party A's obligations under this Agreement.
Party B: None.
(h) Governing Law. The parties to this Agreement hereby agree that the law of the State of New York shall govern their rights and
duties in whole (including any claim or controversy arising out of or relating to this Agreement), without regard to the
conflict of law provisions thereof other than New York General Obligations Law Sections 5-1401 and 5-1402.
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) will apply to each Transaction hereunder.
(j) Affiliate. Party A and Party B shall be deemed to have no Affiliates for purposes of this Agreement.
Part 5. Other Provisions.
(a) Definitions. Unless otherwise specified in a Confirmation, this Agreement and each Transaction under this Agreement are
subject to the 2000 ISDA Definitions as published and copyrighted in 2000 by the International Swaps and Derivatives
Association, Inc. (the "Definitions"), and will be governed in all relevant respects by the provisions set forth in the
Definitions, without regard to any amendment to the Definitions subsequent to the date hereof. The provisions of the
Definitions are hereby incorporated by reference in and shall be deemed a part of this Agreement, except that (i) references in
the Definitions to a "Swap Transaction" shall be deemed references to a "Transaction" for purposes of this Agreement, and (ii)
references to a "Transaction" in this Agreement shall be deemed references to a "Swap Transaction" for purposes of the
Definitions. Each term capitalized but not defined in this Agreement shall have the meaning assigned thereto in the Indenture.
Each reference herein to a "Section" (unless specifically referencing the Indenture) or to a "Section" "of this Agreement" will
be construed as a reference to a Section of the ISDA Master Agreement; each herein reference to a "Part" will be construed as a
reference to the Schedule to the ISDA Master Agreement; each reference herein to a "Paragraph" will be construed as a reference
to a Paragraph of the Credit Support Annex.
(b) Amendments to ISDA Master Agreement.
(i) Single Agreement. Section 1(c) is hereby amended by the adding the words "including, for the avoidance of doubt, the
Credit Support Annex" after the words "Master Agreement".
(ii) [Reserved.]
(iii) [Reserved.]
(iv) Representations. Section 3 is hereby amended by adding at the end thereof the following subsection (g):
"(g) Relationship Between Parties.
(1) Nonreliance. (i) It is not relying on any statement or representation of the other party (whether
written or oral) regarding any Transaction hereunder, other than the representations expressly made
in this Agreement or the Confirmation in respect of that Transaction, (ii) it has consulted with its
own legal, regulatory, tax, business, investment, financial and accounting advisors to the extent it
has deemed necessary, and it has made its own investment, hedging and trading decisions based upon
its own judgment and upon any advice from such advisors as it has deemed necessary and not upon any
view expressed by the other party, (iii) it is not relying on any communication (written or oral) of
the other party as investment advice or as a recommendation to enter into this Transaction; it being
understood that information and explanations related to the terms and conditions of this Transaction
shall not be considered investment advice or a recommendation to enter into this Transaction, and
(iv) it has not received from the other party any assurance or guaranty as to the expected results of
this Transaction.
(2) Evaluation and Understanding. (i) It has the capacity to evaluate (internally or through
independent professional advice) each Transaction and has made its own decision to enter into the
Transaction and (ii) it understands the terms, conditions and risks of the Transaction and is
willing and able to accept those terms and conditions and to assume those risks, financially and
otherwise.
(3) Purpose. It is entering into the Transaction for the purposes of managing its borrowings or
investments, hedging its underlying assets or liabilities or in connection with a line of business.
(4) Status of Parties. The other party is not acting as an agent, fiduciary or advisor for it in
respect of the Transaction.
(5) Eligible Contract Participant. It is an "eligible swap participant" as such term is defined in,
Section 35.1(b)(2) of the regulations (17 C.F.R. 35) promulgated under, and an "eligible contract
participant" as defined in Section 1(a)(12) of the Commodity Exchange Act, as amended."
(v) Transfer to Avoid Termination Event. Section 6(b)(ii) is hereby amended (i) by deleting in the first paragraph the
words "or if a Tax Event Upon Merger occurs and the Burdened Party is the Affected Party," and in the third paragraph
the words ", 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", (ii) by deleting the words "to transfer" and
inserting the words "to effect a Permitted Transfer" in lieu thereof, and (iii) adding at the end of the third
paragraph "; provided that the other party's consent shall not be required if such transfer is a Permitted Transfer."
(vi) Jurisdiction. Section 13(b) is hereby amended by: (i) deleting in the second line of subparagraph (i) thereof the
word "non-", (ii) deleting "; and" from the end of subparagraph (i) and inserting "." in lieu thereof, and (iii)
deleting the final paragraph thereof.
(vii) Local Business Day. The definition of Local Business Day in Section 14 is hereby amended by the addition of the words
"or any Credit Support Document" after "Section 2(a)(i)" and the addition of the words "or Credit Support Document"
after "Confirmation".
(c) Additional Termination Events. The following Additional Termination Events will apply:
(i) Failure to Post Collateral. If Party A has failed to comply with or perform any obligation to be complied with or
performed by Party A in accordance with the Credit Support Annex and such failure has not given rise to an Event of
Default under Section 5(a)(i) or Section 5(a)(iii), then an Additional Termination Event shall have occurred with
respect to Party A and Party A shall be the sole Affected Party with respect to such Additional Termination Event.
(ii) Second Rating Trigger Replacement. The occurrence of any event described in this Part 5(c)(ii) shall constitute an
Additional Termination Event with respect to Party A and Party A shall be the sole Affected Party with respect to such
Additional Termination Event.
(A) A Xxxxx'x Second Trigger Downgrade Event has occurred and is continuing and at least 30 Local Business Days
have elapsed since such Xxxxx'x Second Trigger Downgrade Event first occurred, and at least one Eligible
Replacement has made a Firm Offer that would, assuming the occurrence of an Early Termination Date, qualify
as a Market Quotation (on the basis that Part 1(f)(i)(A) applies) and which remains capable of becoming
legally binding upon acceptance.
(B) An S&P Required Ratings Downgrade Event has occurred and is continuing and at least 60 calendar days have
elapsed since such S&P Required Ratings Downgrade Event first occurred.
(iii) Amendment of the Indenture. If, without the prior written consent of Party A where such consent is required under the
Indenture (such consent not to be unreasonably withheld), an amendment is made to the Indenture which amendment could
reasonably be expected to have a material adverse effect on the interests of Party A under this Agreement, an
Additional Termination Event shall have occurred with respect to Party B, Party B shall be the sole Affected Party
with respect to such Additional Termination Event and the Transaction with the Reference Number FXNSC9757 hereunder
shall be the sole Affected Transaction.
(iv) Amendment of the Indenture. If, without the prior written consent of Party A where such consent is required under the
Indenture (such consent not to be unreasonably withheld), an amendment is made to the Indenture which amendment could
reasonably be expected to have a material adverse effect on the interests of Party A under this Agreement, an
Additional Termination Event shall have occurred with respect to Party B, Party B shall be the sole Affected Party
with respect to such Additional Termination Event and the Transaction with the Reference Number FXNCC9759 hereunder
shall be the sole Affected Transaction.
(iv) Failure to Comply with Regulation AB Requirements. If, (x) upon the occurrence of a Swap Disclosure Event (as defined
in Part 5(e) below) Party A has not complied with any of the provisions set forth in Part 5(e)(iii) below within the
time period specified therein or (y) Party A fails to provide updated Swap Financial Disclosure within the time period
set forth in Part 5(e)(iv) and such failure is not remedied on or before the third Local Business Day after notice of
such failure is given to Party A, then an Additional Termination Event shall have occurred with respect to Party A and
Party A shall be the sole Affected Party with respect to such Additional Termination Event.
(v) Indenture Event of Default. If (i) all of the outstanding Notes have been declared due and payable following an
Event of Default pursuant to the Indenture and (ii) the Trustee has commenced the sale or liquidation of the Trust
Estate, then an Additional Termination Event will have occurred with respect to Party B and Party B shall be the
sole Affected Party with respect to such Additional Termination Event and the Transaction with Reference Number
FXNSC9757 will be the sole Affected Transaction.
(vi) Optional Redemption of the Notes. Provided that a transfer of the Transaction with Reference Number FXNSC9757 has
not occurred pursuant to Part 5(f)(i)(d) hereof, an Additional Termination Event shall occur upon the notice to
Noteholders of an Optional Redemption of the Notes becoming unrescindable in accordance with Article VIII of the
Indenture (such notice, the "Optional Redemption Notice"). With respect to such Additional Termination Event: (A)
Party B shall be the sole Affected Party and the Transaction with Reference Number FXNSC9757 will be the sole
Affected Transaction; (B) notwithstanding anything to the contrary in Section 6(b)(iv) or Section 6(c)(i), the final
Distribution Date specified in the Optional Redemption Notice is hereby designated as the Early Termination Date for
this Additional Termination Event in respect of all Affected Transactions; (C) Section 2(a)(iii)(2) shall not be
applicable to any Affected Transaction in connection with the Early Termination Date resulting from this Additional
Termination Event; notwithstanding anything to the contrary in Section 6(c)(ii), payments and deliveries under
Section 2(a)(i) or Section 2(e) in respect of the Terminated Transactions resulting from this Additional Termination
Event will be required to be made through and including the Early Termination Date designated as a result of this
Additional Termination Event; provided, for the avoidance of doubt, that any such payments or deliveries that are
made on or prior to such Early Termination Date will not be treated as Unpaid Amounts in determining the amount
payable in respect of such Early Termination Date; (D) notwithstanding anything to the contrary in Section 6(d)(i),
(I) if, no later than 4:00 pm New York City time on the day that is four Business Days prior to the final
Distribution Date specified in the Optional Redemption Notice, the Securities Administrator requests the amount of
the Estimated Swap Termination Payment, Party A shall provide to the Securities Administrator in writing (which may
be done in electronic format) the amount of the Estimated Swap Termination Payment no later than 2:00 pm New York
City time on the following Business Day and (II) if the Securities Administrator provides written notice (which may
be done in electronic format) to Party A no later than two Business Days prior to the final Distribution Date
specified in the Optional Redemption Notice that all requirements of the Optional Termination have been met, then
Party A shall, no later than one Business Day prior to the final Distribution Date specified in the Optional
Redemption Notice, make the calculations contemplated by Section 6(e) (as amended herein) and provide to the
Securities Administrator in writing (which may be done in electronic format) the amount payable by either Party B or
Party A in respect of the related Early Termination Date in connection with this Additional Termination Event;
provided, however, that the amount payable by Party B, if any, in respect of the related Early Termination Date
shall be the lesser of (x) the amount calculated to be due by Party B pursuant to Section 6(e) and (y) the Estimated
Swap Termination Payment; and (E) notwithstanding anything to the contrary in this Agreement, any amount due from
Party B to Party A in respect of this Additional Termination Event will be payable on the final Distribution Date
specified in the Optional Redemption Notice and any amount due from Party A to Party B in respect of this
Additional Termination Event will be payable one Business Day prior to the final Distribution Date specified in the
Optional Redemption Notice.
(vii) The Securities Administrator shall be an express third party beneficiary of this Agreement as if a party hereto to the
extent of the Securities Administrator's rights specified herein.
(viii) Optional Termination of Securitization. Provided that a transfer of the Transaction with Reference Number FXNCC9759
has not occurred pursuant to Part 5(f)(i)(d) hereof, an Additional Termination Event shall occur upon the earlier of
(i) the occurrence of an Optional Redemption in accordance with Article VIII of the Indenture or (ii) notice to
Noteholder of such Optional Redemption becoming unrescindable, in accordance with Article VIII of the Indenture. Party
B shall be the sole Affected Party and the Transactions with Reference Number FXNCC9759 will be the sole Affected
Transaction with respect to such Additional Termination Event; provided, however, that notwithstanding anything to the
contrary in Section 6(b)(iv), only Party B may designate an Early Termination Date as a result of this Additional
Termination Event.
(viv) Failure to Pay Class A Notes. If the Securities Administrator on behalf of the Trust is unable to pay, or fails or
admits in writing its inability to pay (1) on any Distribution Date, any Class Monthly Interest Amount with respect to
the Class A Notes or (2) by the Distribution Date immediately following the maturity date for the Mortgage Loan with
the latest maturity date, the ultimate payment of principal with respect to the Class A Notes, in either case to the
extent required pursuant to the terms of the Indenture to be paid to the Class A Notes, then an Additional Termination
Event shall have occurred with respect to Party B, Party B shall be the sole Affected Party and the Transaction with
Reference Number FXNSC9757 hereunder shall be Affected Transactions.
(d) Required Ratings Downgrade Event. If a Required Ratings Downgrade Event has occurred and is continuing, then Party A shall, at
its own expense, use commercially reasonable efforts to, as soon as reasonably practicable, either (A) effect a Permitted
Transfer or (B) procure an Eligible Guarantee by a guarantor with credit ratings at least equal to the S&P Required Ratings
Threshold and the Xxxxx'x Second Trigger Threshold.
(e) Compliance with Regulation AB.
(i) Party A agrees and acknowledges that Bear Xxxxxxx Asset Backed Securities I LLC (the "Depositor") on behalf of the
Issuing Entity is required under Regulation AB under the Securities Act of 1933, as amended, and the Securities
Exchange Act of 1934, as amended (the "Exchange Act") ("Regulation AB"), to disclose certain financial information
regarding Party A or its group of affiliated entities, if applicable, depending on the aggregate "significance
percentage" of this Agreement and any other derivative contracts between Party A or its group of affiliated entities,
if applicable, and Party B, as calculated from time to time in accordance with Item 1115 of Regulation AB. In
addition, for so long as the Depositor is required to file a Form 10-K in respect of the related transaction (which
the parties hereto may assume shall be for the period covering the calendar year following the Closing Date, unless
otherwise notified in writing by the Securities Administrator), Party A, at its own expense, shall no later than the
25th calendar day of each month, notify the Depositor and the Securities Administrator in writing of any known
material affiliations or relationships that develop following the Closing Date between Party A and any of the (x) the
Sponsor, the Depositor, Indenture Trustee, Owner Trustee or the Issuing Entity, if this Agreement is transferred by
Party A to another entity and (y) any originator, servicer, trustee or bond administrator or other transaction party,
each as identified by the Securities Administrator to Party A in writing, and provide to the Depositor and the
Securities Administrator a description of such affiliations or relations.
(ii) It shall be a swap disclosure event ("Swap Disclosure Event") if, on any Local Business Day after the date hereof for
so long as the Issuing Entity is required to file periodic reports under the Exchange Act, the Depositor or the
Securities Administrator requests from Party A the certain financial information described in Item 1115 of Regulation
AB, including, but not limited to Party A's financial data as described in Item 1115(b)(1) of Regulation AB and
financial statements as described in Item 1115(b)(2) of Regulation AB (the "Swap Financial Disclosure").
(iii) Upon the occurrence of a Swap Disclosure Event, Party A, within ten (10) calendar days and at its own expense, shall
(1)(a) either (i) provide to the Depositor the current Swap Financial Disclosure in an XXXXX-compatible format (for
example, such information may be provided in Microsoft Word® format, Microsoft Excel® format or any other format
suitable for conversion to the XXXXX format, but not in .pdf format) or (ii) if permitted by Regulation AB, provide
written consent to the Depositor to incorporate by reference such current Swap Financial Disclosure that are filed
with the Securities and Exchange Commission in the Exchange Act Reports of the Issuing Entity, and (b) if the Swap
Financial Disclosure has been audited, cause its outside accounting firm to provide its consent to filing or
incorporation by reference in the Exchange Act Reports of the Issuing Entity of such accounting firm's report relating
to their audits of such current Swap Financial Disclosure; (2) secure another entity to replace Party A by way of a
Permitted Transfer, either as party to this Agreement or by entering into a replacement derivative agreement, on terms
substantially in the form of this Agreement, subject to prior notification to the Swap Rating Agencies, which entity
(or a guarantor therefor) satisfies the Rating Agency Condition with respect to S&P and which entity is able to comply
with the requirements of Item 1115 of Regulation AB; (3) only if sufficient to satisfy the requirements of Item 1115
of Regulation AB that are applicable to the Derivative Provider, as evidenced by an opinion of counsel at the expense
of Party A and that is reasonably acceptable to the Depositor or as determined by the Depositor in its sole discretion
if this Agreement is transferred by Party A to another entity, subject to the Rating Agency Condition with respect to
S&P, obtain a guaranty of Party A's obligations under this Agreement from an affiliate of Party A that is able to
comply with the financial information disclosure requirements of Item 1115 of Regulation AB and this Agreement, such
that disclosure provided in respect of the affiliate will satisfy any disclosure requirements applicable to the Swap
Provider, and cause such affiliate to provide Swap Financial Disclosure; or (4) only if sufficient to satisfy the
requirements of Item 1115 of Regulation AB that are applicable to the Derivative Provider, as evidenced by an opinion
of counsel at the expense of Party A and that is reasonably acceptable to the Depositor or as determined by the
Depositor in its sole discretion if this Agreement is transferred by Party A to another entity, post collateral in an
amount sufficient to reduce the "significance percentage" for purposes of Item 1115 of Regulation AB with respect to
any Derivative Agreement relating to such Securitization, calculated separately or in the aggregate with other
Derivative Agreements for such Securitization (a) to 10% if the Securities Administrator or Depositor has notified the
Derivative Provider that the "significance percentage" is 10% or more (but less than 20%) or (b) to 20% if the
Securities Administrator or Depositor has notified the Derivative Provider that the "significance percentage" is 20%
or more. If permitted by Regulation AB, any required Swap Financial Disclosure may be provided by incorporation by
reference from reports filed pursuant to the Exchange Act.
(iv) If Party A provides Swap Financial Disclosure to the Depositor pursuant to Part 5(e)(iii)(1) or causes its affiliate
to provide Swap Financial Disclosure to the Depositor pursuant to Part 5(e)(iii)(3), then for so long as (x) the
Depositor is required to file Exchange Act reports in respect of the Issuing Entity and (y) on the Distribution Date
immediately preceding the date of any release of updated Swap Financial Disclosure by Party A, the Securities
Administrator or Depositor has provided notice to Party A that the "significance percentage" determined under Item
1115 of Regulation AB is equal to or greater than 10% with respect to such Distribution Date, Party A, at its own
expense, shall provide or cause to be provided to the Depositor any updated Swap Financial Disclosure with respect to
Party A or any entity that consolidates Party A within five (5) Local Business Days of the release of any such updated
Swap Financial Disclosure.
(v) Party A agrees that, in the event that Party A provides Swap Financial Disclosure to the Depositor in accordance with
Part 5(e)(iii)(1), or Party A causes its affiliate to provide Swap Financial Disclosure to the Depositor in accordance
with Part 5(e)(iii)(3), or Party A provides or causes to be provided updated Swap Financial Disclosure in accordance
with Part 5(e)(iv), Party A will indemnify and hold harmless the Depositor, its respective directors or officers and
any person controlling the Depositor, from and against any and all losses, claims, damages and liabilities caused by
any untrue statement or alleged untrue statement of a material fact contained in such Swap Financial Disclosure or
caused by any omission or alleged omission to state in such Swap Financial Disclosure a material fact required to be
stated therein or necessary to make the statements therein, in light of the circumstances under which they were made,
not misleading.
(vi) The Securities Administrator and Depositor shall be an express third party beneficiary of this Agreement as if it were
a party hereto to the extent of the Depositor's rights explicitly specified in this Part 5(e).
(f) Transfers.
(i) Section 7 is hereby amended to read in its entirety as follows:
"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 unless (a) the prior written consent of the other party is obtained and (b)
the Rating Agency Condition has been satisfied with respect to S&P, except that:
(a) Party A may make a Permitted Transfer (1) pursuant to Section 6(b)(ii) (as amended herein) or the Item 1115
Agreement, (2) 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), or (3) at any time at which no Relevant Entity has credit ratings at least equal to the
Approved Ratings Threshold;
(b) Party B may transfer its rights and obligations hereunder in connection with a transfer pursuant to Section
6.09 Successor Indenture Trustee of Securities Administrator by Xxxxxx of the Indenture, in any collateral
assignment or other transfer described in the definition of Permitted Security Interest; and
(c) 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).
(d) upon an delivery of an Optional Redemption Notice to Noteholders, Party B will make a transfer or
assignment of each Transaction under this Agreement to NIC OTC LLC (the "Transferee"), so long as, with
respect to such transaction, (i) if an Early Termination Date were to occur at the time of such transfer or
assignment, Party A would have an obligation to make a payment pursuant to Section 6(e) of the Master
Agreement with respect to such Transaction, (ii) NIC OTC LLC is the party exercising such Optional
Redemption and is an affiliate of the Sponsor, (iii) Party A determines in its sole discretion that the
transfer or assignment of such Transaction is consistent with Party A's then current credit and risk
management policies and (iv) Party A and NIC OTC LLC have entered into an ISDA Master Agreement prior to or
concurrent with such transfer or assignment. If the conditions (i)-(iv) above are satisfied and except as
specified otherwise in the documentation evidencing a transfer or assignment, a transfer or assignment of
all the obligations of the transferring party will constitute an acceptance and assumption of such
obligations (and any related interests so transferred) by the Transferee, and a release and discharge by
the remaining party of the transferring party from, and an agreement by the remaining party not to make any
claim for payment, liability, or otherwise against the transferring party with respect to, such obligations
from and after the effective date of the transfer. Party A hereby agrees that Transferee may: (i) assign
all of its rights and delegate all of its liabilities and obligations under the assigned Transaction to a
third party, such assignment and delegation to be effective upon the receipt of written consent thereto
from Party A (in its sole and absolute discretion); or (ii) terminate the assigned Transaction by giving
three Business Days' prior written notice to Party A (the "Optional Termination Date"). On such Optional
Termination Date, if any, a termination payment (if any) shall be payable by Transferee or Party A, as
applicable, as determined by the Calculation Agent by the application of Section 6(e)(ii) of the Master
Agreement, with Market Quotation and Second Method being the applicable method for determining the
termination payment and with Transferee as the sole Affected Party.
Any purported transfer or assignment that is not in compliance with this Section will be void.
(ii) If an Eligible Replacement has made a Firm Offer (which remains an offer that will become legally binding upon
acceptance by Party B) to be the transferee pursuant to a Permitted Transfer, Party B shall, at Party A's written
request and at Party A's expense, take any reasonable steps required to be taken by Party B to effect such transfer.
(g) Limited Recourse; Non-Recourse. Party A acknowledges and agrees that, notwithstanding any provision in this Agreement to the
contrary, the obligations of Party B hereunder are limited recourse obligations of Party B, payable solely from the Swap
Account and the proceeds thereof, in accordance with the priority of payments and other terms of the Indenture and that Party A
will not have any recourse to any of the directors, officers, agents, employees, shareholders or affiliates of Party B with
respect to any claims, losses, damages, liabilities, indemnities or other obligations in connection with any transactions
contemplated hereby. In the event that the Swap Account and the proceeds thereof, should be insufficient to satisfy all claims
outstanding and following the realization of Swap Account and the proceeds thereof, any claims against or obligations of Party
B under this Agreement or any other confirmation thereunder still outstanding shall be extinguished and thereafter not revive.
The Securities Administrator shall not have liability for any failure or delay in making a payment hereunder to Party A due to
any failure or delay in receiving amounts in the Swap Account from the Trust created pursuant to the Indenture. This provision
will survive the termination of this Agreement.
(h) Timing of Payments by Party B upon Early Termination. Notwithstanding anything to the contrary in Section 6(d)(ii), to the
extent that all or a portion (in either case, the "Unfunded Amount") of any amount that is calculated as being due in respect
of any Early Termination Date under Section 6(e) from Party B to Party A will be paid by Party B from amounts other than any
upfront payment paid to Party B by an Eligible Replacement that has entered into a Replacement Transaction with Party B, then
such Unfunded Amount shall be due on the next subsequent Distribution Date following the date on which the payment would have
been payable as determined in accordance with Section 6(d)(ii), and on any subsequent Distribution Dates until paid in full (or
if such Early Termination Date is the final Distribution Date, on such final Distribution Date); provided, however, that if the
date on which the payment would have been payable as determined in accordance with Section 6(d)(ii) is a Distribution Date,
such payment will be payable on such Distribution Date.
(i) Rating Agency Notifications. Notwithstanding any other provision of this Agreement, no Early Termination Date shall be
effectively designated hereunder by Party B and no transfer of any rights or obligations under this Agreement shall be made by
either party unless each Rating Agency has been provided prior written notice of such designation or transfer.
(j) No Set-off. Except as expressly provided for in Section 2(c), Section 6 or Part 1(f)(i)(D) hereof, and notwithstanding any
other provision of this Agreement or any other existing or future agreement, each party irrevocably waives any and all rights
it may have to set off, net, recoup or otherwise withhold or suspend or condition payment or performance of any obligation
between it and the other party hereunder against any obligation between it and the other party under any other agreements.
Section 6(e) shall be amended by deleting the following sentence: "The amount, if any, payable in respect of an Early
Termination Date and determined pursuant to this Section will be subject to any Set-off.".
(k) Amendment. Notwithstanding any provision to the contrary in this Agreement, no amendment of either this Agreement or any
Transaction under this Agreement shall be permitted by either party unless each of the Rating Agencies has been provided prior
written notice of the same and the Rating Agency Condition is satisfied with respect to S&P.
(l) Notice of Certain Events or Circumstances. Each Party agrees, upon learning of the occurrence or existence of any event or
condition that constitutes (or that with the giving of notice or passage of time or both would constitute) an Event of Default
or Termination Event with respect to such party, promptly to give the other Party and to each Rating Agency notice of such
event or condition; provided that failure to provide notice of such event or condition pursuant to this Part 5(l) shall not
constitute an Event of Default or a Termination Event.
(m) Proceedings. No Relevant Entity shall institute against, or cause any other person to institute against, or join any other
person in instituting against Party B, the Depositor, Owner Trustee, the Indenture Trustee, the Securities Administrator, or
the trust formed pursuant to the Indenture, in any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other proceedings under any federal or state bankruptcy or similar law for a period of one year (or, if longer,
the applicable preference period) and one day following payment in full of the Certificates and any Notes. This provision will
survive the termination of this Agreement.
(n) Owner Trustee Liability Limitations. It is expressly understood and agreed by the parties hereto that (a) this Agreement is
executed by Wilmington Trustee Company not in its individual capacity, but solely as Wilmington Trustee Company under the
Indenture in the exercise of the powers and authority conferred and invested in it thereunder; (b) Wilmington Trustee Company
has been directed pursuant to the Indenture to enter into this Agreement and to perform its obligations hereunder; (c) each of
the representations, undertakings and agreements herein made on behalf of the Issuing Entity is made and intended not as
personal representations of Wilmington Trustee Company but is made and intended for the purpose of binding only the Issuing
Entity; and (d) under no circumstances shall Wilmington Trustee Company in its individual capacity be personally liable for any
payments hereunder or for the breach or failure of any obligation, representation, warranty or covenant made or undertaken
under this Agreement.
(o) Severability. If any term, provision, covenant, or condition of this Agreement, or the application thereof to any party or
circumstance, shall be held to be invalid or unenforceable (in whole or in part) in any respect, the remaining terms,
provisions, covenants, and conditions hereof shall continue in full force and effect as if this Agreement had been executed
with the invalid or unenforceable portion eliminated, so long as this Agreement as so modified continues to express, without
material change, the original intentions of the parties as to the subject matter of this Agreement and the deletion of such
portion of this Agreement will not substantially impair the respective benefits or expectations of the parties; provided,
however, that this severability provision shall not be applicable if any provision of Section 2, 5, 6, or 13 (or any definition
or provision in Section 14 to the extent it relates to, or is used in or in connection with any such Section) shall be so held
to be invalid or unenforceable.
The parties shall endeavor to engage in good faith negotiations to replace any invalid or unenforceable term, provision,
covenant or condition with a valid or enforceable term, provision, covenant or condition, the economic effect of which comes as
close as possible to that of the invalid or unenforceable term, provision, covenant or condition.
(p) Agent for Party B. Party A acknowledges that the Issuing Entity has appointed the Owner Trustee, the Indenture Trustee, and
the Securities Administrator as agents under the Indenture to carry out certain functions on behalf of Party B, and that the
Owner Trustee, the Indenture Trustee, and the Securities Administrator shall be entitled to give notices and to perform and
satisfy the obligations of Party B hereunder on behalf of Party B.
(q) [Reserved.]
(r) Consent to Recording. Each party hereto consents to the monitoring or recording, at any time and from time to time, by the
other party of any and all communications between trading, marketing, and operations personnel of the parties and their
Affiliates, waives any further notice of such monitoring or recording, and agrees to notify such personnel of such monitoring
or recording.
(s) Waiver of Jury Trial. Each party waives any right it may have to a trial by jury in respect of any suit, action or proceeding
relating to this Agreement or any Credit Support Document.
(t) Form of ISDA Master Agreement. Party A and Party B hereby agree that the text of the body of the ISDA Master Agreement is
intended to be the printed form of the ISDA Master Agreement (Multicurrency - Crossborder) as published and copyrighted in 1992
by the International Swaps and Derivatives Association, Inc.
(u) [Reserved.]
(v) Capacity. Party A represents to Party B on the date on which Party A enters into this Agreement that it is entering into the
Agreement and the Transaction as principal and not as agent of any person. The Owner Trustee represents to Party A on the date
on which Party B enters into this Agreement that the Owner Trustee is executing the Agreement not in its individual capacity,
but solely as Owner Trustee on behalf of the Issuing Entity.
(w) [Reserved.]
(x) [Reserved.]
Limitation on Events of Default. Notwithstanding the provisions of Sections 5 and 6, with respect to any Transaction, if at
any time and so long as Party B has satisfied in full all its payment obligations under Section 2(a)(i) in respect of each
Transaction with the reference number FXNCC9759 (each, a "Cap Transaction") and has at the time no future payment obligations,
whether absolute or contingent, under such Section in respect of such Cap Transaction, then unless Party A is required pursuant
to appropriate proceedings to return to Party B or otherwise returns to Party B upon demand of Party B any portion of any such
payment in respect of such Cap Transaction, (a) the occurrence of an event described in Section 5(a) with respect to Party B
shall not constitute an Event of Default or Potential Event of Default with respect to Party B as Defaulting Party in respect
of such Cap Transaction and (b) Party A shall be entitled to designate an Early Termination Date pursuant to Section 6 in
respect of such Cap Transaction only as a result of the occurrence of a Termination Event set forth in either Section 5(b)(i)
or 5(b)(ii) with respect to Party A as the Affected Party, or Section 5(b)(iii) with respect to Party A as the Burdened Party.
For purposes of the Transactions identified by the reference numbers FXNCC9759, Party A acknowledges and agrees that Party B's
only payment obligation under Section 2(a)(i) in respect of each Cap Transaction is to pay the related Fixed Amount on the
related Fixed Amount Payer Payment Date.
(y) Permitted Security Interest. Party A hereby acknowledges and consents to the Permitted Security Interest.
"Permitted Security Interest" means the collateral assignment by Party B of the Swap Collateral to the Indenture Trustee
pursuant to the Indenture and any transfer of such rights pursuant to an exercise of creditor's remedies in respect of such
collateral assignment, and the granting to the Indenture Trustee of a first priority security interest in the Swap Collateral
pursuant to the Indenture.
"Swap Collateral" means all right, title and interest of Party B in this Agreement, each Transaction hereunder, and all present
and future amounts payable by Party A to Party B under or in connection with the Agreement or any Transaction governed by the
Agreement, including, without limitation, any transfer or termination of any such Transaction.
(z) Additional Definitions.
As used in this Agreement, the following terms shall have the meanings set forth below, unless the context clearly requires
otherwise:
"Approved Ratings Threshold" means each of the S&P Approved Ratings Threshold and the Moody's First Trigger Ratings Threshold.
"Approved Replacement" means, with respect to a Market Quotation, an entity making such Market Quotation, which entity would
satisfy conditions (a), (b), (c) and (d) of the definition of Permitted Transfer (as determined by Party B in its sole
discretion, acting in a commercially reasonable manner) if such entity were a Transferee, as defined in the definition of
Permitted Transfer.
"Derivative Provider Trigger Event" means (i) an Event of Default with respect to which Party A is a Defaulting Party, (ii) a
Termination Event with respect to which Party A is the sole Affected Party or (iii) an Additional Termination Event with
respect to which Party A is the sole Affected Party.
"Eligible Guarantee" means an unconditional and irrevocable guarantee of all present and future payment obligations and
obligations to post collateral of Party A under this Agreement (or, solely for purposes of the definition of Eligible
Replacement, all present and future payment obligations and obligations to post collateral of such Eligible Replacement under
this Agreement or its replacement, as applicable) which is provided by a guarantor as principal debtor rather than surety and
which is directly enforceable by Party B, the form and substance of which guarantee are subject to the Rating Agency Condition
with respect to S&P.
"Eligible Replacement" means an entity (A) that lawfully could perform the obligations owing to Party B under this Agreement
(or its replacement, as applicable), (B) (I) (x) which has credit ratings from S&P at least equal to the S&P Required Ratings
Threshold or (y) all present and future obligations of which entity owing to Party B under this Agreement (or its replacement,
as applicable) are guaranteed pursuant to an Eligible Guarantee provided by a guarantor with credit ratings from S&P at least
equal to the S&P Required Ratings Threshold, in either case if S&P is a Rating Agency, (II) (x) which has credit ratings from
Moody's at least equal to the Moody's Second Trigger Ratings Threshold or (y) all present and future obligations of which
entity owing to Party B under this Agreement (or its replacement, as applicable) are guaranteed pursuant to an Eligible
Guarantee provided by a guarantor with credit ratings from Moody's at least equal to the Moody's Second Trigger Ratings
Threshold, in either case if Xxxxx'x is a Rating Agency.
"Estimated Swap Termination Payment" means, with respect to an Early Termination Date, an amount determined by Party A in good
faith and in a commercially reasonable manner as the maximum payment that could be owed by Party B to Party A in respect of
such Early Termination Date pursuant to Section 6(e), taking into account then current market conditions.
"Financial Institution" means a bank, broker/dealer, insurance company, structured investment company or derivative product
company.
"Firm Offer" means a quotation from an Eligible Replacement (i) in an amount equal to the actual amount payable by or to Party
B in consideration of an agreement between Party B and such Eligible Replacement to replace Party A as the counterparty to this
Agreement by way of novation or, if such novation is not possible, an agreement between Party B and such Eligible Replacement
to enter into a Replacement Transaction (assuming that all Transactions hereunder become Terminated Transactions), and (ii)
that constitutes an offer by such Eligible Replacement to replace Party A as the counterparty to this Agreement or enter a
Replacement Transaction that will become legally binding upon such Eligible Replacement upon acceptance by Party B.
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor thereto.
"Moody's First Trigger Ratings Threshold" means, with respect to Party A, the guarantor under an Eligible Guarantee, or an
Eligible Replacement, (i) if such entity has a short-term unsecured and unsubordinated debt rating from Moody's, a long-term
unsecured and unsubordinated debt rating or counterparty rating from Moody's of "A2" and a short-term unsecured and
unsubordinated debt rating from Moody's of "Prime-1", or (ii) if such entity does not have a short-term unsecured and
unsubordinated debt rating or counterparty rating from Moody's, a long-term unsecured and unsubordinated debt rating or
counterparty rating from Moody's of "A1".
"Moody's Second Trigger Downgrade Event" means that no Relevant Entity has credit ratings from Moody's at least equal to the
Moody's Second Trigger Ratings Threshold.
"Moody's Second Trigger Ratings Threshold" means, with respect to Party A, the guarantor under an Eligible Guarantee, or an
Eligible Replacement, (i) if such entity has a short-term unsecured and unsubordinated debt rating from Xxxxx'x, a long-term
unsecured and unsubordinated debt rating or counterparty rating from Xxxxx'x of "A3" and a short-term unsecured and
unsubordinated debt rating from Xxxxx'x of "Prime-2", or (ii) if such entity does not have a short-term unsecured and
unsubordinated debt rating from Xxxxx'x, a long-term unsecured and unsubordinated debt rating or counterparty rating from
Xxxxx'x of "A3".
"Permitted Transfer" means a transfer by novation by Party A, in the circumstances specified in this Agreement (including
agreements incorporated by reference herein) as a Permitted Transfer, to a transferee (the "Transferee") of Party A's rights,
liabilities, duties and obligations under this Agreement, with respect to which transfer each of the following conditions is
satisfied: (a) the Transferee is an Eligible Replacement; (b) Party A and the Transferee are both "dealers in notional
principal contracts" within the meaning of Treasury regulations section 1.1001-4 (in each case as certified by such entity);(c)
as of the date of such transfer the Transferee would not be required to withhold or deduct on account of Tax from any payments
under this Agreement or would be required to gross up for such Tax under Section 2(d)(i)(4); (d) an Event of Default or
Termination Event would not occur as a result of such transfer; (e) the Transferee contracts with Party B pursuant to a written
instrument (the "Transfer Agreement") (A) (i) on terms which are effective to transfer to the Transferee all, but not less than
all, of Party A's rights, liabilities, duties and obligations under the Agreement and all relevant Transactions, which terms
are identical to the terms of this Agreement, other than party names, dates relevant to the effective date of such transfer,
tax representations (provided that the representations in Part 2(a)(i) are not modified) and any other representations
regarding the status of the substitute counterparty of the type included in Part 5(b)(iv), Part 5(v)(i)(2) or Part 5(v)(ii),
notice information and account details, and (ii) each Rating Agency has been given prior written notice of such transfer, or
(B) (i) on terms that (x) have the effect of preserving for Party B the economic equivalent of all payment and delivery
obligations (whether absolute or contingent and assuming the satisfaction of each applicable condition precedent) under this
Agreement immediately before such transfer and (y) are, in all material respects, no less beneficial for Party B than the terms
of this Agreement immediately before such transfer, as determined by Party B, and (ii) Xxxxx'x has been given prior written
notice of such transfer and the Rating Agency Condition is satisfied with respect to S&P; (f) Party A will be responsible for
any costs or expenses incurred in connection with such transfer (including any replacement cost of entering into a replacement
transaction); and (g) such transfer otherwise complies with the terms of the Indenture.
"Rating Agency Condition" means, with respect to any particular proposed act or omission to act hereunder and each Rating
Agency specified in connection with such proposed act or omission, that each such Rating Agency provides prior written
confirmation that the proposed action or inaction would not cause a downgrade or withdrawal of the then-current rating of any
Notes.
"Rating Agencies" mean, with respect to any date of determination, each of S&P and Xxxxx'x, to the extent that each such rating
agency is then providing a rating for any of the Newcastle Mortgage Securities Trust 2007-1, Asset-Backed Notes, Series
2007-1or any notes backed by any of such asset-backed notes (collectively the "Notes").
"Relevant Entities" mean Party A and, to the extent applicable, a guarantor under an Eligible Guarantee.
"Replacement Transaction" means, with respect to any Terminated Transaction or group of Terminated Transactions, a transaction
or group of transactions that (A) has terms which would be effective to transfer to a transferee all, but not less than all, of
Party A's rights, liabilities, duties and obligations under this Agreement and all relevant Transactions, which terms are
identical to the terms of this Agreement, other than party names, dates relevant to the effective date of such transfer, tax
representations (provided that the representations in Part 2(a)(i) are not modified) and any other representations regarding
the status of the substitute counterparty of the type included in Part 5(b)(iv), Part 5(v)(i)(2) or Part 5(v)(ii), notice
information and account details, save for the exclusion of provisions relating to Transactions that are not Terminated
Transactions, or (B) (x) would have the effect of preserving for Party B the economic equivalent of any payment or delivery
(whether the underlying obligation was absolute or contingent and assuming the satisfaction of each applicable condition
precedent) under this Agreement in respect of such Terminated Transaction or group of Terminated Transactions that would, but
for the occurrence of the relevant Early Termination Date, have been required after that date, and (y) has terms which are, in
all material respects, no less beneficial for Party B than those of this Agreement (save for the exclusion of provisions
relating to Transactions that are not Terminated Transactions), as determined by Party B.
"Required Ratings Downgrade Event" means that no Relevant Entity has credit ratings at least equal to the Required Ratings
Threshold. For purposes of determining whether a Required Ratings Downgrade Event has occurred, each Relevant Entity shall
provide its credit ratings to Party B in writing, upon request of Party B.
"Required Ratings Threshold" means each of the S&P Required Ratings Threshold and the Xxxxx'x Second Trigger Ratings Threshold.
"S&P" means Standard & Poor's Rating Services, a division of The XxXxxx-Xxxx Companies, Inc., or any successor thereto.
"S&P Approved Ratings Threshold" means, with respect to Party A, the guarantor under an Eligible Guarantee, or an Eligible
Replacement, a short-term unsecured and unsubordinated debt rating of "A-1" from S&P, or, if such entity does not have a
short-term unsecured and unsubordinated debt rating from S&P, a long-term unsecured and unsubordinated debt rating or
counterparty rating of "A+" from S&P.
"S&P Required Ratings Downgrade Event" means that no Relevant Entity has credit ratings from S&P at least equal to the S&P
Required Ratings Threshold.
"S&P Required Ratings Threshold" means, with respect to Party A, the guarantor under an Eligible Guarantee, or an Eligible
Replacement, (I) if such entity is a Financial Institution, a short-term unsecured and unsubordinated debt rating of "A-2" from
S&P, or, if such entity does not have a short-term unsecured and unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating or counterparty rating of "BBB+" from S&P, or (II) if such entity is not a Financial Institution, a
short-term unsecured and unsubordinated debt rating of "A-1" from S&P, or, if such entity does not have a short-term unsecured
and unsubordinated debt rating from S&P, a long-term unsecured and unsubordinated debt rating or counterparty rating of "A+"
from S&P.
IN WITNESS WHEREOF, the parties have executed this Schedule by their duly authorized officers as of the date hereof.
BEAR XXXXXXX FINANCIAL PRODUCTS INC.
By:_________________________________________
Name:
Title:
NEWCASTLE MORTGAGE SECURITIES TRUST 2007-1
By: Wilmington Trust Company, not in its individual
capacity, but solely as Owner Trustee
By:____________________________________________
Name:
Title:
ANNEX A
ISDA®
CREDIT SUPPORT ANNEX
to the Schedule to the
ISDA Master Agreement
dated as of July 12, 2007 between
Bear Xxxxxxx Financial Products Inc. (hereinafter referred to as "Party A" or "Pledgor")
and
Newcastle Mortgage Securities Trust 2007-1
(hereinafter referred to as "Party B" or "Secured Party")
For the avoidance of doubt, and notwithstanding anything to the contrary that may be contained in the Agreement, this Credit Support
Annex shall relate solely to the Transaction documented in the Confirmation dated July 12, 2007, between Party A and Party B,
Reference Number FXNSC9757 and FXNCC9759 .
Paragraph 13. Elections and Variables.
(a) Security Interest for "Obligations". The term "Obligations" as used in this Annex includes the following additional
obligations:
With respect to Party A: not applicable.
With respect to Party B: not applicable.
(b) Credit Support Obligations.
(i) Delivery Amount, Return Amount and Credit Support Amount.
(A) "Delivery Amount" has the meaning specified in Paragraph 3(a), except that:
(I) the words "upon a demand made by the Secured Party on or promptly following a Valuation Date"
shall be deleted and replaced with the words "not later than the close of business on each
Valuation Date",
(II) the sentence beginning "Unless otherwise specified in Paragraph 13" and ending "(ii) the Value as
of that Valuation Date of all Posted Credit Support held by the Secured Party." shall be deleted
in its entirety and replaced with the following:
"The "Delivery Amount" applicable to the Pledgor for any Valuation Date will equal the greater of
(1) the amount by which (a) the S&P Credit Support Amount for such Valuation Date exceeds (b)
the S&P Value, as of such Valuation Date, of all Posted Credit Support held by the
Secured Party, and
(2) the amount by which (a) the Xxxxx'x Credit Support Amount for such Valuation Date exceeds
(b) the Xxxxx'x Value, as of such Valuation Date, of all Posted Credit Support held by
the Secured Party.", and
(III) if, on any Valuation Date, the Delivery Amount equals or exceeds the Pledgor's Minimum Transfer
Amount, the Pledgor will Transfer to the Secured Party sufficient Eligible Credit Support to
ensure that, immediately following such transfer, the Delivery Amount shall be zero.
(B) "Return Amount" has the meaning specified in Paragraph 3(b), except that:
(I) the sentence beginning "Unless otherwise specified in Paragraph 13" and ending "(ii) the Credit
Support Amount." shall be deleted in its entirety and replaced with the following:
"The "Return Amount" applicable to the Secured Party for any Valuation Date will equal the lesser
of
(1) the amount by which (a) the S&P Value, as of such Valuation Date, of all Posted Credit
Support held by the Secured Party exceeds (b) the S&P Credit Support Amount for such
Valuation Date, and
(2) the amount by which (a) the Xxxxx'x Value, as of such Valuation Date, of all Posted
Credit Support held by the Secured Party exceeds (b) the Xxxxx'x Credit Support Amount
for such Valuation Date.", and
(II) in no event shall the Secured Party be required to Transfer any Posted Credit Support under
Paragraph 3(b) if, immediately following such transfer, the Delivery Amount would be greater than
zero.
(C) "Credit Support Amount" shall not apply. For purposes of calculating any Delivery Amount or Return Amount
for any Valuation Date, reference shall be made to the S&P Credit Support Amount, the Xxxxx'x Credit
Support Amount for such Valuation Date, as provided in Paragraphs 13(b)(i)(A) and 13(b)(i)(B), above.
(ii) Eligible Collateral.
The items set forth on the schedule of Eligible Collateral attached as Schedule A hereto will qualify as "Eligible
Collateral" (for the avoidance of doubt, all Eligible Collateral to be denominated in USD).
(iii) Other Eligible Support.
The following items will qualify as "Other Eligible Support" for the party specified:
Not applicable.
(iv) Threshold.
(A) "Independent Amount" means zero with respect to Party A and Party B.
(B) "Xxxxx'x Threshold" means, with respect to Party A and any Valuation Date, if a Xxxxx'x First Trigger
Downgrade Event has occurred and is continuing and such Xxxxx'x First Trigger Downgrade Event has been
continuing (i) for at least 30 Local Business Days or (ii) since this Annex was executed, zero; otherwise,
infinity.
"S&P Threshold" means, with respect to Party A and any Valuation Date, if an S&P Approved Ratings
Downgrade Event has occurred and is continuing and such S&P Approved Ratings Downgrade Event has been
continuing (i) for at least 10 Local Business Days or (ii) since this Annex was executed, zero; otherwise,
infinity.
"Threshold" means, with respect to Party B and any Valuation Date, infinity.
(C) "Minimum Transfer Amount" means USD 100,000 with respect to Party A and Party B; provided, however, that if
the aggregate Certificate Principal Balance of any Certificates and the aggregate principal balance of any
Notes rated by S&P is at the time of any transfer less than USD 50,000,000, the "Minimum Transfer Amount"
shall be USD 50,000.
(D) Rounding: The Delivery Amount will be rounded up to the nearest integral multiple of USD 10,000. The Return
Amount will be rounded down to the nearest integral multiple of USD 10,000.
(c) Valuation and Timing.
(i) "Valuation Agent" means Party A.
(ii) "Valuation Date" means each Local Business Day on which any of the S&P Threshold or the Xxxxx'x Threshold is zero.
(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 Exposure will be made as of approximately the same time on the same date. The Valuation Agent will notify
each party (or the other party, if the Valuation Agent is a party) of its calculations not later than the
Notification Time on the applicable Valuation Date (or in the case of Paragraph 6(d), the Local Business Day
following the day on which such relevant calculations are performed)."
(iv) "Notification Time" means 11:00 a.m., New York time, on a Local Business Day.
(d) Conditions Precedent and Secured Party's Rights and Remedies. The following Termination Events will be a "Specified
Condition" for the party specified (that party being the Affected Party if the Termination Event occurs with respect to that
party): With respect to Party A and Party B: None.
(e) Substitution.
(i) "Substitution Date" has the meaning specified in Paragraph 4(d)(ii).
(ii) Consent. If specified here as applicable, then the Pledgor must obtain the Secured Party's consent for any
substitution pursuant to Paragraph 4(d): Inapplicable.
(f) Dispute Resolution.
(i) "Resolution Time" means 1:00 p.m. New York time on the Local Business Day following the date on which the notice of
the dispute is given under Paragraph 5.
(ii) Value. Notwithstanding anything to the contrary in Paragraph 12, for the purpose of Paragraphs 5(i)(C) and 5(ii),
the S&P Value and Xxxxx'x Value, on any date, of Eligible Collateral other than Cash will be calculated as follows:
For Eligible Collateral other than Cash in the form of securities listed in Schedule A: the sum of (A) the product
of (1)(x) the bid-side quotation at the Valuation Time for such securities on the principal national securities
exchange on which such securities are listed, or (y) if such securities are not listed on a national securities
exchange, the arithmetic mean of the bid-side quotations for such securities quoted at the Valuation Time by any
three principal market makers for such securities selected by the Valuation Agent, provided that if only two
bid-side quotations are obtained, then the arithmetic mean of such two bid-side quotations will be used, and if only
one bid-side quotation is obtained, such quotation shall be used, or (z) if no such bid price is listed or quoted
for such date, the bid price listed or quoted (as the case may be) at the Valuation Time for the day next preceding
such date on which such prices were available and (2) the applicable Valuation Percentage for such Eligible
Collateral, and (B) the accrued interest on such securities (except to the extent Transferred to the Pledgor
pursuant to Paragraph 6(d)(ii) or included in the applicable price referred to in the immediately preceding clause
(A)) as of such date.
For Cash, the amount thereof multiplied, in the case of the S&P Value, by the applicable S&P Valuation Percentage.
(iii) Alternative. The provisions of Paragraph 5 will apply.
(g) Holding and Using Posted Collateral.
(i) Eligibility to Hold Posted Collateral; Custodians. Party B (or its Custodian) will be entitled to hold Posted
Collateral pursuant to Paragraph 6(b), provided that the following conditions applicable to it are satisfied:
(1) it is not a Defaulting Party.
(2) Posted Collateral consisting of Cash or certificated securities that cannot be paid or delivered by
book-entry may be held only in any state of the United States which has adopted the Uniform Commercial
Code, and
(3) in the case of any Custodian for Party B, such Custodian (or, to the extent applicable, its parent company
or credit support provider) shall then have credit ratings from S&P at least equal to the Custodian
Required Rating Threshold. If at any time the Custodian does not have credit ratings from S&P at least
equal to the Custodian Required Rating Threshold, the Trustee must within 60 days obtain a replacement
Custodian with credit ratings from S&P at least equal to the Custodian Required Rating Threshold.
Initially, the Custodian for Party B is: Securities Administrator
(ii) Use of Posted Collateral. The provisions of Paragraph 6(c) will not apply to Party B or its Custodian; provided,
however, that if Party A delivers Posted Collateral in book-entry form, then Paragraph 6(c)(ii) will apply to Party
B and its Custodian, and Party B and its Custodian shall have the rights specified in Paragraph 6(c)(ii).
(h) Distributions and Interest Amount.
(i) Interest Rate. The "Interest Rate" will be the actual interest rate earned on Posted Collateral in the form of Cash
that is held by Party B or its Custodian. Posted Collateral in the form of Cash shall be invested in such overnight
(or redeemable within two Local Business Days of demand) Permitted Investments rated at least (x) AAAm or AAAm-G by
S&P and (y) Prime-1 by Xxxxx'x or Aaa by Xxxxx'x, as directed by Party X. Xxxxx and losses incurred in respect of
any investment of Posted Collateral in the form of Cash in Permitted Investments as directed by Party A shall be for
the account of Party A.
(ii) Amendment of Paragraph 6(d)(i) - Distributions. Paragraph 6(d)(i) shall be deleted in its entirety and replaced
with the following:
"Distributions. Subject to Paragraph 4(a), if Party B receives Distributions on a Local Business Day, it will
Transfer to Party A not later than the following Local Business Day any Distributions it receives to the extent that
a Delivery Amount would not be created or increased by that Transfer, as calculated by the Valuation Agent (and the
date of calculation will be deemed to be a Valuation Date for this purpose). "
(iii) Amendment of Paragraph 6(d)(ii) - Interest Amount. Clause (d)(ii) of Paragraph 6 shall be amended and restated to
read in its entirety as follows:
"(ii) Interest Amount. In lieu of any interest, dividends or other amounts paid with respect to Posted Collateral
in the form of Cash (all of which may be retained by the Secured Party), the Secured Party will Transfer to the
Pledgor on the 20th day of each calendar month (or if such day is not a Local Business Day, the next Local Business
Day) the Interest Amount. Any Interest Amount or portion thereof actually received by Party B, but not Transferred
pursuant to this Paragraph will constitute Posted Collateral in the form of Cash and will be subject to the security
interest granted under Paragraph 2. For purposes of calculating the Interest Amount the amount of interest
calculated for each day of the interest period shall be compounded monthly." Secured Party shall not be obligated
to transfer any Interest Amount unless and until it has received such amount.
(i) Additional Representation(s). There are no additional representations by either party.
(j) Other Eligible Support and Other Posted Support.
(i) "Value" with respect to Other Eligible Support and Other Posted Support means: not applicable.
(ii) "Transfer" with respect to Other Eligible Support and Other Posted Support means: not applicable.
(k) Demands and Notices.All demands, specifications and notices under this Annex will be made pursuant to the Notices Section of
this Agreement, except that any demand, specification or notice shall be given to or made at the following addresses, or at
such other address as the relevant party may from time to time designate by giving notice (in accordance with the terms of
this paragraph) to the other party:
If to Party A, at the address specified pursuant to the Notices Section of this Agreement.
If to Party B, at the address specified pursuant to the Notices Section of this Agreement.
If to Party B's Custodian: at the address designated in writing from time to time.
(l) Address for Transfers. Each Transfer hereunder shall be made to the address specified below or to an address specified in
writing from time to time by the party to which such Transfer will be made.
Party A account details for holding collateral:
Citibank, N.A., New York
ABA Number: 000-0000-00, for the account of Bear, Xxxxxxx Securities Corp.
Account Number: 0925-3186, for further credit to Bear Xxxxxxx Financial Products Inc.
Sub-account Number: 102-04654-1-3
Attention: Derivatives Department
Party B's Custodian account details for holding collateral:
Xxxxx Fargo Bank, N.A.
ABA Number: 000000000
Account Name: SAS Clearing
Account Number: 3770771416
FFC Number: 53162603
(m) Other Provisions.
(i) Collateral Account. Party B shall open and maintain a segregated account, and hold, record and identify all Posted
Collateral in such segregated account.
(ii) Agreement as to Single Secured Party and Single Pledgor. Party A and Party B hereby agree that, notwithstanding
anything to the contrary in this Annex, (a) the term "Secured Party" as used in this Annex means only Party B, (b)
the term "Pledgor" as used in this Annex means only Party A, (c) only Party A makes the pledge and grant in
Paragraph 2, the acknowledgement in the final sentence of Paragraph 8(a) and the representations in Paragraph 9.
(iii) Calculation of Value. Paragraph 4(c) is hereby amended by deleting the word "Value" and inserting in lieu thereof
"S&P Value, Xxxxx'x Value". Paragraph 4(d)(ii) is hereby amended by (A) deleting the words "a Value" and inserting
in lieu thereof "an S&P Value, Xxxxx'x Value" and (B) deleting the words "the Value" and inserting in lieu thereof
"S&P Value, Xxxxx'x Value". Paragraph 5 (flush language) is hereby amended by deleting the word "Value" and
inserting in lieu thereof "S&P Value, Xxxxx'x Value". Paragraph 5(i) (flush language) is hereby amended by deleting
the word "Value" and inserting in lieu thereof "S&P Value, Xxxxx'x Value". Paragraph 5(i)(C) is hereby amended by
deleting the word "the Value, if" and inserting in lieu thereof "any one or more of the S&P Value, Xxxxx'x Value, as
may be". Paragraph 5(ii) is hereby amended by (1) deleting the first instance of the words "the Value" and
inserting in lieu thereof "any one or more of the S&P Value, Xxxxx'x Value" and (2) deleting the second instance of
the words "the Value" and inserting in lieu thereof "such disputed S&P Value, Xxxxx'x Value". Each of Paragraph
8(b)(iv)(B) and Paragraph 11(a) is hereby amended by deleting the word "Value" and inserting in lieu thereof "least
of the S&P Value, Xxxxx'x Value".
(iv) Form of Annex. Party A and Party B hereby agree that the text of Paragraphs 1 through 12, inclusive, of this Annex
is intended to be the printed form of ISDA Credit Support Annex (Bilateral Form - ISDA Agreements Subject to New
York Law Only version) as published and copyrighted in 1994 by the International Swaps and Derivatives Association,
Inc.
(v) Events of Default. Clause (iii) of Paragraph 7 shall not apply to Party B.
(vi) Expenses. Notwithstanding anything to the contrary in Paragraph 10, the Pledgor will be responsible for, and will
reimburse the Secured Party for, all transfer and other taxes and other costs involved in maintenance and any
Transfer of Eligible Collateral.
(vii) Withholding. Paragraph 6(d)(ii) is hereby amended by inserting immediately after "the Interest Amount" in the
fourth line thereof the words "less any applicable withholding taxes."
(ix) Additional Definitions. As used in this Annex:
"Custodian Required Rating Threshold" means, with respect to an entity, a short-term unsecured and unsubordinated
debt rating from S&P of "A-1," or, if such entity does not have a short-term unsecured and unsubordinated debt
rating from S&P, a long-term unsecured and unsubordinated debt rating or counterparty rating from S&P of "A+".
"DV01" means, with respect to a Transaction and any date of determination, the estimated change in the Secured
Party's Transaction Exposure with respect to such Transaction that would result from a one basis point change in the
relevant swap curve on such date, as determined by the Valuation Agent in good faith and in a commercially
reasonable manner in accordance with the relevant methodology customarily used by the Valuation Agent. The
Valuation Agent shall, upon request of Party B, provide to Party B a statement showing in reasonable detail such
calculation.
"Exposure" has the meaning specified in Paragraph 12, except that (1) after the word "Agreement" the words
"(assuming, for this purpose only, that Part 1(f)(i)(A-E) of the Schedule is deleted)" shall be inserted and (2) at
the end of the definition of Exposure, the words "without assuming that the terms of such Replacement Transactions
are materially less beneficial for Party B than the terms of this Agreement" shall be added.
"Local Business Day" means, for purposes of this Annex: any day on which (A) commercial banks are open for business
(including dealings in foreign exchange and foreign currency deposits) in New York and the location of Party A,
Party B and any Custodian, and (B) in relation to a Transfer of Eligible Collateral, any day on which the clearance
system agreed between the parties for the delivery of Eligible Collateral is open for acceptance and execution of
settlement instructions (or in the case of a Transfer of Cash or other Eligible Collateral for which delivery is
contemplated by other means a day on which commercial banks are open for business (including dealings in foreign
exchange and foreign deposits) in New York and the location of Party A, Party B and any Custodian.
"Xxxxx'x Credit Support Amount" means, for any Valuation Date:
(A) if the Xxxxx'x Threshold for such Valuation Date is zero and (i) it is not the case that a Xxxxx'x Second
Trigger Downgrade Event has occurred and is continuing or (ii) a Xxxxx'x Second Trigger Downgrade Event has
occurred and is continuing and less than 30 Local Business Days have elapsed since such Xxxxx'x Second
Trigger Downgrade Event first occurred, an amount equal to the greater of (x) zero and (y) the sum of the
Secured Party's Exposure and the aggregate of Xxxxx'x First Trigger Additional Amounts for all Transactions
and such Valuation Date;
(B) if the Xxxxx'x Threshold for such Valuation Date is zero and if a Xxxxx'x Second Trigger Downgrade Event
has occurred and is continuing and at least 30 Local Business Days have elapsed since such Xxxxx'x Second
Trigger Downgrade Event first occurred, an amount equal to the greatest of (x) zero, (y) the aggregate
amount of the Next Payments for all Next Payment Dates, and (z) the sum of the Secured Party's Exposure and
the aggregate of Xxxxx'x Second Trigger Additional Amounts for all Transactions and such Valuation Date; or
(C) if the Xxxxx'x Threshold for such Valuation Date is infinity, zero.
"Xxxxx'x First Trigger Additional Amount" means, for any Valuation Date and any Transaction, the lesser of (x) the
product of the Xxxxx'x First Trigger DV01 Multiplier and DV01 for such Transaction and such Valuation Date and (y)
the product of (i) the Xxxxx'x First Trigger Notional Amount Multiplier, (ii) the Scale Factor, if any, for such
Transaction, or, if no Scale Factor is applicable for such Transaction, one and (iii) the Notional Amount for such
Transaction for the Calculation Period for such Transaction (each as defined in the related Confirmation) which
includes such Valuation Date.
"Xxxxx'x First Trigger Downgrade Event" means that no Relevant Entity has credit ratings from Xxxxx'x at least equal
to the Xxxxx'x First Trigger Ratings Threshold.
"Xxxxx'x First Trigger DV01 Multiplier" means 15.
"Xxxxx'x First Trigger Notional Amount Multiplier" means 2%.
"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 Schedule A.
"Xxxxx'x Second Trigger Additional Amount" means, for any Valuation Date and any Transaction,
(A) if such Transaction is not a Transaction-Specific Hedge, the lesser of (i) the product of the Xxxxx'x
Second Trigger DV01 Multiplier and DV01 for such Transaction and such Valuation Date and (ii) the product
of (1) the Xxxxx'x Second Trigger Notional Amount Multiplier, (2) the Scale Factor, if any, for such
Transaction, or, if no Scale Factor is specified in such Transaction, one and (3) the Notional Amount for
such Transaction for the Calculation Period for such Transaction (each as defined in the related
Confirmation) which includes such Valuation Date; or
(B) if such Transaction is a Transaction-Specific Hedge, the lesser of (i) the product of the Xxxxx'x Second
Trigger Transaction-Specific Hedge DV01 Multiplier and DV01 for such Transaction and such Valuation Date
and (ii) the product of (x) the Xxxxx'x Second Trigger Transaction-Specific Hedge Notional Amount
Multiplier, (y) the Scale Factor, if any, for such Transaction, or, if no Scale Factor is applicable for
such Transaction, one, and (z) the Notional Amount for such Transaction for the Calculation Period for such
Transaction (each as defined in the related Confirmation) which includes such Valuation Date.
"Xxxxx'x Second Trigger DV01 Multiplier" means 50.
"Xxxxx'x Second Trigger Notional Amount Multiplier" means 8%.
"Xxxxx'x Second Trigger Transaction-Specific Hedge DV01 Multiplier" means 65.
"Xxxxx'x Second Trigger Transaction-Specific Hedge Notional Amount Multiplier" means 10%.
"Xxxxx'x Valuation Percentage" means, with respect to a Valuation Date and each item of Eligible Collateral,
(A) if the Xxxxx'x Threshold for such Valuation Date is zero and (i) it is not the case that a Xxxxx'x Second
Trigger Downgrade Event has occurred and is continuing or (ii) a Xxxxx'x Second Trigger Downgrade Event has
occurred and is continuing and less than 30 Local Business Days have elapsed since such Xxxxx'x Second
Trigger Downgrade Event first occurred, the corresponding percentage for such Eligible Collateral in the
column headed "Xxxxx'x First Trigger Valuation Percentage", or
(B) if a Xxxxx'x Second Trigger Downgrade Event has occurred and is continuing and at least 30 Local Business
Days have elapsed since such Xxxxx'x Second Trigger Downgrade Event first occurred, the corresponding
percentage for such Eligible Collateral in the column headed "Xxxxx'x Second Trigger Valuation Percentage.
"Xxxxx'x Value" means, on any date and with respect to any Eligible Collateral the product of (x) the bid price
obtained by the Valuation Agent and (y) the applicable Xxxxx'x Valuation Percentage for such Eligible Collateral set
forth in Schedule A.
"Next Payment" means, in respect of each Next Payment Date, the greater of (i) the aggregate amount of any payments
due to be made by Party A under Section 2(a) on such Next Payment Date less the aggregate amount of any payments due
to be made by Party B under Section 2(a) on such Next Payment Date (any such payments determined based on rates
prevailing the date of determination) and (ii) zero.
"Next Payment Date" means each date on which the next scheduled payment under any Transaction is due to be paid.
"Remaining Weighted Average Maturity" means, with respect to a Transaction, the expected weighted average maturity
for such Transaction as determined by the Valuation Agent.
"Replacement Transaction" for the purposes of this Annex, means, with respect to any Terminated Transaction or group
of Terminated Transactions, a transaction or group of transactions that would have the effect of preserving for the
Secured Party the economic equivalent of any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent) by the parties under Section
2(a)(i) in respect of such Terminated Transaction or group of Terminated Transactions that would, but for the
occurrence of the relevant Early Termination Date, have been required after that date, without assuming that the
terms of such transaction or group of transactions are materially less beneficial for Party B than the terms of the
Terminated Transaction or group of Terminated Transactions.
"S&P Approved Ratings Downgrade Event" means that no Relevant Entity has credit ratings from S&P at least equal to
the S&P Approved Ratings Threshold.
"S&P Credit Support Amount" means, for any Valuation Date:
(A) if the S&P Threshold for such Valuation Date is zero and it is not the case that an S&P Required Ratings
Downgrade Event has occurred and been continuing for at least 10 Local Business Days, an amount equal to
the greater of (x) zero and (y) than Secured Party's Exposure on such Valuation Date;
(B) if the S&P Threshold for such Valuation Date is zero and it is the case that an S&P Required Ratings
Downgrade Event has occurred and been continuing for at least 10 Local Business Days, an amount equal to
the greater of (x) zero and (y) 125% of the Secured Party's Exposure on such Valuation Date; or
(C) if the S&P Threshold for such Valuation Date is infinity, zero.
"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 an S&P Required Ratings
Downgrade Event 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 Approved Ratings Valuation Percentage;"
or
(B) if an S&P Required Ratings Downgrade Event 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 Required Ratings
Valuation Percentage".
"S&P Value" means, on any date and with respect to any Eligible Collateral, (A) in the case of Eligible Collateral
other than Cash, the product of (x) the bid price obtained by the Valuation Agent for such Eligible Collateral and
(y) the applicable S&P Valuation Percentage for such Eligible Collateral set forth in Schedule A and (B) in the case
of Cash, the amount thereof multiplied by the applicable S&P Valuation Percentage.
"Transaction Exposure" means, for any Transaction, Exposure determined as if such Transaction were the only
Transaction between the Secured Party and the Pledgor.
"Transaction-Specific Hedge" means any Transaction that is (i) an interest rate swap in respect of which (x) the
notional amount of the interest rate swap is "balance guaranteed" or (y) the notional amount of the interest rate
swap for any Calculation Period (as defined in the related Confirmation) otherwise is not a specific dollar amount
that is fixed at the inception of the Transaction, (ii) an interest rate cap, (iii) an interest rate floor or (iv)
an interest rate swaption.
"Valuation Percentage" shall mean, for purposes of determining the S&P Value or Xxxxx'x Value with respect to any
Eligible Collateral or Posted Collateral, the applicable S&P Valuation Percentage or Xxxxx'x Valuation Percentage
for such Eligible Collateral or Posted Collateral, respectively, in each case as set forth in Schedule A.
"Value" shall mean, in respect of any date, the related S&P Value and the related Xxxxx'x Value.
[Remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the parties have executed this Annex by their duly authorized representatives as of the date of the
Agreement.
BEAR XXXXXXX FINANCIAL PRODUCTS INC. NEWCASTLE MORTGAGE SECURITIES TRUST 2007-1
By: Wilmington Trust Company, not in its
individual capacity, but solely as Owner Trustee
By: _____________________________ By: _____________________________________
Name Name:
Title: Title:
Date: Date:
SCHEDULE A
Eligible Collateral
S&P Xxxxx'x Xxxxx'x
ISDA Collateral Asset Valuation Approved S&P Required First Trigger Second Trigger
Definition (ICAD) Ratings Ratings Valuation Valuation Valuation
Code Remaining Maturity in Years Percentage Percentage Percentage Percentage
______________________________________________________________________________________________________________________________________________
(A) US-CASH N/A 100% 80% 100% 100%
(B) US-TBILL
US-TNOTE
US-TBOND
1 or less 98.9% 79.1% 100% 100%
More than 1 but not more than 2 98% 78.4% 100% 99%
More than 2 but not more than 3 98% 78.4% 100% 98%
More than 3 but not more than 5 98% 78.4% 100% 97%
More than 5 but not more than 7 93.7% 75% 100% 96%
More than 7 but not more than 10 92.6% 74.1% 100% 94%
More than 10 but not more than 20 91.1% 72.9% 100% 90%
More than 20 88.6% 70.9% 100% 88%
(C) US-GNMA
US-FNMA
US-FHLMC
1 or less 98.5% 78.8% 100% 99%
More than 1 but not more than 2 98% 78.4% 100% 99%
More than 2 but not more than 3 98% 78.4% 100% 98%
More than 3 but not more than 5 98% 78.4% 100% 96%
More than 5 but not more than 7 92.6% 74.1% 100% 93%
More than 7 but not more than 10 92.6% 74.1% 100% 93%
More than 10 but not more than 20 87.7% 70.2% 100% 89%
More than 20 84.4% 67.5% 100% 87%
The ISDA Collateral Asset Definition (ICAD) Codes used in this Schedule A are taken from the Collateral Asset Definitions
(First Edition - June 2003) as published and copyrighted in 2003 by the International Swaps and Derivatives Association, Inc.
