MASTER AGREEMENT

(Multicurrency-Cross Border)

 

ISDA®

 

International Swap Dealers Association, Inc.

 

 

MASTER AGREEMENT

 

dated as of December 7, 2006

 

 

have entered and/or anticipate entering into one or more transactions (each a "Transaction") that are or will be governed by this Master Agreement, which includes the schedule (the "Schedule"), and the documents and other confirming evidence (each a "Confirmation") exchanged between the parties confirming those Transactions.

 

Accordingly, the parties agree as follows:--

 

1.

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.

 

 

 

value of that which was  (or would have been)  required to be delivered as of the originally scheduled  date

for delivery, in each case together with (to the extent permitted under applicable law) interest, in the currency of such amounts, from (and including) the date such amounts or obligations were or would have been required to have been paid or performed to (but excluding) such Early Termination Date, at the Applicable Rate.  Such amounts of interest will be calculated on the basis of daily compounding and the actual number of days elapsed.  The fair market value of any obligation referred to in clause (b) above shall be reasonably  determined by the party obliged to make the determination under Section 6(e) or, if each party is so obliged, it shall be the average of the Termination Currency Equivalents of the fair market values reasonably determined by both parties.

 

 

IN WITNESS WHEREOF, the parties have executed this document on the respective dates specified below with effect from the date specified on the first page of this document.

 

 

 

 

SCHEDULE
to the
ISDA Master Agreement

dated as of December 7, 2006

between

 

Part 1.     Termination Provisions

 

(a)

“Specified Entity” means in relation to the Counterparty for the purpose of:

 

Section 5(a)(v):

Not Applicable
Section 5(a)(vi):

Not Applicable
Section 5(a)(vii):

Not Applicable
Section 5(b)(iv):

Not Applicable

and in relation to the Trust for the purpose of:

Section 5(a)(v):

Not Applicable
Section 5(a)(vi):

Not Applicable
Section 5(a)(vii):

Not Applicable
Section 5(b)(iv):

Not Applicable

 

(b)

“Specified Transaction” shall have the meaning specified in Section 14 of this Agreement.

 

(c)

Events of Default.

 

(i)

The only “Events of Defaults” specified in Section 5(a) of this Agreement that apply to the Counterparty are the following:

 

Section 5(a)(i) — “Failure to Pay or Deliver”;

Section 5(a)(ii) — “Breach of Agreement”;

Section 5(a)(iii) — “Credit Support Default”;

Section 5(a)(i) — “Misrepresentation”;

Section 5(a)(v) — “Default under Specified Transaction”;

Section 5(a)(vi) — “Cross-Default” (as amended below);

Section 5(a)(vii) — “Bankruptcy”; and

Section 5(a)(viii) — “Merger Without Assumption”.

With respect to the Counterparty only: —

The “Cross Default” provisions of Section 5(a)(vi) will apply to Counterparty, provided that (i) the phrase “or becoming capable at such time of being declared” shall be deleted from clause (1) of such Section 5(a)(vi); and (ii) the following language shall be added to the end thereof:  “Notwithstanding the foregoing, a default under subsection (2) hereof shall not constitute an Event of Default if (i) the default was caused solely by error or omission of an administrative or operational nature; (ii) funds were available to enable the party to make the payment when due; and (iii) the payment is made within two Local Business Days of such party’s receipt of written notice of its failure to pay.”

“Specified Indebtedness” will have the meaning specified in Section 14 of this Agreement, except that such term shall not include obligations in respect of deposits received.

“Threshold Amount” means, in respect of the Counterparty, an amount equal to $100,000,000 (or its equivalent in other currencies).

(ii)

The only “Events of Defaults” specified in Section 5(a) of this Agreement that apply to the Trust are the following:

 

Section 5(a)(i) – “Failure to Pay or Deliver”;

 

Section 5(a)(iii) – “Credit Support Default”; will not apply to the Trust except that Section 5(a)(iii)(1) will apply in respect of the Trust’s obligations under Paragraph 3(b) of the Credit Support Annex entered into between the Counterparty and the Trust in relation to this Master Agreement; and

 

Section 5(a)(vii) – “Bankruptcy”; provided that (A) clauses (2), (7) and (9) thereof shall not apply to the Trust; (B) clause (4) thereof shall not apply to the Trust with respect to proceedings or petitions instituted or presented by the Counterparty or any Affiliate of the Counterparty; (C) clause (6) shall not apply to the Trust to the extent that it refers to (i) any appointment that is effected by or contemplated in connection with the Indenture or the Trust Agreement or (ii) any appointment to which the Trust has not become subject; and (D) clause (8) shall not apply to the Trust to the extent that clause (8) relates to clauses of Section 5(a)(vii) that are not applicable to the Trust.

 

(d)

Termination Events.

 

(i)

The only Termination Events specified in Section 5(b) of this Agreement that apply to the Counterparty are the following:

 

Section 5(b)(i) — “Illegality”;

Section 5(b)(ii) — “Tax Event”; provided that Section 5(b)(ii) shall be amended by deleting the words “(x) any action taken by a taxing authority, or brought in a court of competent jurisdiction, on or after the date on which a Transaction is entered into (regardless of whether such action is taken or brought with respect to a party to this Agreement) or (y)”; and

Section 5(b)(iii) — “Tax Event upon Merger”; provided that the Counterparty shall not be entitled to designate an Early Termination Date by reason of a Tax Event upon Merger in respect of which the Counterparty is the Affected Party.

 

(ii)

The only Termination Events specified in Section 5(b) of this Agreement that apply to the Trust are the following:

 

Section 5(b)(i) — “Illegality”;

 

Section 5(b)(ii) — “Tax Event”; provided that Section 5(b)(ii) shall be amended by deleting the words “(x) any action taken by a taxing authority, or brought in a court of competent jurisdiction, on or after the date on which a Transaction is entered into (regardless of whether such action is taken or brought with respect to a party to this Agreement) or (y)”; and

 

Section 5(b)(iii) — “Tax Event upon Merger”; provided that the Counterparty shall not be entitled to designate an Early Termination Date by reason of a Tax Event upon Merger in respect of which the Counterparty is the Affected Party.

 

(e)

The “Automatic Early Termination” provision of Section 6(a) of this Agreement will not apply to the Counterparty and will not apply to the Trust.

 

(f)

Payments on Early Termination.  For the purpose of Section 6(e) of this Agreement:–

 

(i)

Market Quotation will apply, provided, however, that in the event of a Counterparty Trigger Event, Part 1(f)(iv) hereof will apply.

 

(ii)

The Second Method will apply.

 

(iii)

The Calculation Agent shall calculate an amount that would be payable to or by the Trust under this Agreement in respect of such Early Termination Date (the “Termination Payment”).

 

(iv)

Notwithstanding anything to the contrary in this Agreement, in the event of a Counterparty Trigger Event, the following provisions shall apply:

 

(A)

The definition of “Market Quotation” shall be deleted in its entirety and replaced with the following:

“Market Quotation” means, with respect to one or more Terminated Transactions, a Firm Offer which is (1) made by a Reference Market-maker that is an Eligible Replacement, (2) for an amount that would be paid to the Trust (expressed as a negative number) or by the Trust (expressed as a positive number) in consideration of an agreement between the Trust and such Reference Market-maker to enter into a transaction (the “Replacement Transaction”) that would have the effect of preserving for the Trust 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, (3) made on the basis that Unpaid Amounts in respect of the Terminated Transaction or group of Transactions are to be excluded but, without limitation, any payment or delivery that would, but for the relevant Early Termination Date, have been required (assuming satisfaction of each applicable condition precedent) after that Early Termination Date is to be included, and (4) made in respect of a Replacement Transaction with commercial terms substantially the same as those of this Agreement (save for the exclusion of provisions relating to Transactions that are not Terminated Transactions).

(B)

The definition of “Settlement Amount” shall be deleted in its entirety and replaced with the following:

“Settlement Amount” means, with respect to any Early Termination Date, an amount (as determined by the Trust) equal to:

(a)

If a Market Quotation for the relevant Terminated Transaction or group of Terminated Transactions is accepted by the Trust so as to become legally binding on or before the day falling ten Local Business Days after the day on which the Early Termination Date is designated (or such later day as the Trust may specify in writing to the Counterparty, which in any event will not be later than the Early Termination Date) (such day, the “Latest Settlement Amount Determination Day”), the Termination Currency Equivalent of the amount (whether positive or negative) of such Market Quotation;

(b)

If, on the Latest Settlement Amount Determination Day, no Market Quotation for the relevant Terminated Transaction or group of Terminated Transactions has been accepted by the Trust so as to become legally binding and one or more Market Quotations from Approved Replacements have been made and remain capable of becoming legally binding upon acceptance, the Settlement Amount shall equal the Termination Currency Equivalent of the amount (whether positive or negative) of the lowest of such Market Quotations (for the avoidance of doubt, the lowest of such Market Quotations shall be the lowest Market Quotation of such Market Quotations expressed as a positive number or, if any of such Market Quotations is expressed as a negative number, the Market Quotation expressed as a negative number with the largest absolute value); or

(c)

If on the Latest Settlement Amount Determination Day,  no Market Quotation for the relevant Terminated Transaction or group of Terminated Transactions is accepted by the Trust so as to become legally binding and no Market Quotation from an Approved Replacement remains capable of becoming legally binding upon acceptance, the Trust’s Loss (whether positive or negative and without reference to any Unpaid Amounts) for the relevant Terminated Transaction or group of Terminated Transactions.

 (C)

For the purpose of paragraph (4) of the definition of “Market Quotation”, the Trust shall determine in its sole discretion, acting in a commercially reasonable manner, whether a Firm Offer is made in respect of a Replacement Transaction with commercial terms substantially the same as those of this Agreement (save for the exclusion of provisions relating to Transactions that are not Terminated Transactions).

(D)

The Trust undertakes to use its reasonable efforts to obtain at least one Market Quotation before the Latest Settlement Amount Determination Day.  The Trust will be deemed to have discharged its obligations under this paragraph (D) if it requests the Counterparty to obtain Market Quotations, where such request is made in writing within two Local Business Days after the day on which the Early Termination Date is designated.  If the Trust requests the Counterparty in writing to obtain Market Quotations, the Counterparty shall use its reasonable efforts to do so before the Latest Settlement Amount Determination Day.  Notwithstanding the foregoing, the Counterparty may obtain Market Quotations  

 (E)

If the Settlement Amount is a negative number, Section 6(e)(i)(3) of this Agreement shall be deleted in its entirety and replaced with the following:

Second Method and Market Quotation. If Second Method and Market Quotation apply, (1) the Trust shall pay to the Counterparty an amount equal to the absolute value of the Settlement Amount in respect of the Terminated Transactions, (2) the Trust shall pay to the Counterparty the Termination Currency Equivalent of the Unpaid Amounts owing to the Counterparty and (3) the Counterparty shall pay to the Trust the Termination Currency Equivalent of the Unpaid Amounts owing to the Trust; provided that, (i) the amounts payable under (2) and (3) shall be subject to netting in accordance with Section 2(c) of this Agreement and (ii) notwithstanding any other provision of this Agreement, any amount payable by the Counterparty under (3) shall not be netted-off against any amount payable by the Trust under (1).

(F)

At any time on or before the Latest Settlement Amount Determination Day at which two or more Market Quotations from Approved Replacements remain capable of becoming legally binding upon acceptance, the Trust shall be entitled to accept only the lowest of such Market Quotations (for the avoidance of doubt, the lowest of such Market Quotations shall be the lowest Market Quotation of such Market Quotations expressed as a positive number or, if any of such Market Quotations is expressed as a negative number, the Market Quotation expressed as a negative number with the largest absolute value).

(v)

To the extent that the Counterparty is required to pay the Termination Payment to the Trust, it will be payable on the day following the day that notice of the amount payable is given to the Counterparty.

(vi)

Any Termination Payment payable to the Counterparty will be payable on the first Distribution Date following the date on which the payment would have been payable as determined in accordance with Section 6(d)(ii); provided that if the date on which the payment would have been payable as determined in accordance with  Section 6(d)(ii) is a Distribution Date, then the payment will be payable on the date determined in accordance with Section 6(d)(ii).

 

(g)

“Termination Currency” means United States Dollars.

 

(h)

Additional Termination Events: The occurrence of the following event shall constitute an Additional Termination Event:

 

An Additional Termination Event shall occur if any of the following events occurs:

 

(1)

Replacement Available.  (A) No Relevant Entity (as defined in Part 5 below) is maintaining the Second Trigger Required Ratings and 30 or more Local Business Days have elapsed since the last time any Relevant Entity maintained the Second Trigger Required Ratings and (B) (i) at least one Eligible Replacement (as defined in Part 5 below) has made a Firm Offer (as defined in Part 5(b) below) (which remains capable of becoming legally binding upon acceptance) and/or (ii) at least one entity that maintains the First Trigger Required Ratings and/or the Second Trigger Required Ratings has made a Firm Offer (which remains capable of becoming legally binding upon acceptance by the offeree) to provide an Eligible Guarantee in respect of all of the Counterparty’s present and future obligations under this Agreement; provided, however, that if an entity has only the Second Trigger Required Ratings, such entity shall also post all collateral required by such an entity under the applicable Ratings Criteria in the Credit Support Annex.

 

The Counterparty shall be the Affected Party for purposes of this Additional Termination Event and all Transactions entered into hereunder shall be Affected Transactions.

 

(2)

Event of Default Under the Indenture.  The principal due in respect of the Notes (as defined in the Indenture) is declared to be due and payable in accordance with the terms of Section 5.2 of the Indenture and the Indenture Trustee has started to sell all or part of the Indenture Trust Estate as a consequence thereof in accordance with Section 5.4 of the Indenture.  If this Additional Termination Event occurs, the Trust shall be the sole Affected Party and all Transactions then outstanding between the parties shall be Affected Transactions.

 

(3)

A notice of redemption pursuant to Section 10.1 of the Indenture is issued and has become irrevocable pursuant to the Indenture, in which event the Trust shall be the sole Affected Party and the Early Termination Date shall not occur earlier than the tenth Business Day (as defined in the Indenture) prior to the scheduled Redemption Date (as defined in the Indenture).  If this Additional Termination Event occurs, the Trust shall be the sole Affected Party and all Transactions then outstanding between the parties shall be Affected Transactions.

(4)

Breach by Trust of Part 5(g) -- Restrictions on Amendments.  If this Additional Termination Event occurs, the Trust shall be the sole Affected Party and all Transactions then outstanding between the parties shall be Affected Transactions.

(5)

It shall be an Additional Termination Event, with the Counterparty as the sole Affected Party, if the Sponsor in its sole discretion determines at any time during the period that reports are being filed with respect to the Trust in accordance with the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations of the Commission under the Exchange Act and the Securities Act of 1933, as amended, that the “aggregate significance percentage” of all derivative instruments provided by the Counterparty and any of its affiliates to the Trust is 8.00% or more, and, within 15 calendar days of such determination and notice from the Sponsor, the Counterparty fails to either, at its option, (i) post collateral satisfactory to the Sponsor and the Depositor in an amount sufficient to reduce the aggregate significance percentage to 7%, pursuant to a Credit Support Annex or similar agreement reasonably satisfactory to the Sponsor and the Depositor, or (ii) at the sole expense of the Counterparty assign this Agreement and all of its obligations hereunder to a substitute counterparty that (A) has agreed to provide any financial or other data required under Regulation AB, (B) has agreed to provide indemnifications relating to such financial or other data substantially in a form acceptable to the Sponsor and the Depositor, (C) satisfies the Rating Agency Condition, (D) is approved by the Sponsor and the Depositor (which approval shall not be unreasonably withheld), and (E) enters into an agreement similar in form to this Agreement.  For the avoidance of doubt, unless otherwise specified in this Agreement, the Counterparty shall be under no obligation to provide any such financial or other data, whether in connection with this Termination Event or otherwise.  For purposes of this Termination Event, (i) "Commission" shall mean the Securities and Exchange Commission, (ii) "Depositor" shall mean SLC Student Loan Receivables I, Inc., (iii) “Sponsor” shall mean The Student Loan Corporation, and (iv) "Regulation AB" shall mean the Asset Backed Securities Regulation AB, 17 C.F.R. §§229.1100-229.1123, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission in the adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time.

Part 2.

Tax Representations.

 

(a)

Payer Representations.  For the purpose of Section 3(e) of this Agreement, the Counterparty will make the following representation:  None.

 

(b)

Payee Representations.  For the purpose of Section 3(f) of this Agreement, the Counterparty and the Trust make the representations specified below, if any:

 

(1)

The Counterparty represents that it is a Delaware limited partnership.

 

(2)

With respect to payments made to the Trust which are not effectively connected to the US:  None.

 

(c)

Additional Tax Provisions.

 

(i)

Gross Up.  Section 2(d)(i)(4) shall not apply to the Trust as X, and Section 2(d)(ii) shall not apply to the Trust as Y, in each case such that the Trust shall not be required to pay any additional amounts referred to therein.

 

(ii)

Indemnifiable Tax.  The definition of “Indemnifiable Tax” in Section 14 is deleted in its entirety and replaced with the following:

 

“Indemnifiable Tax” means, in relation to payments by the Counterparty, any Tax and, in relation to payments by the Trust, no Tax.

 

Part 3.

Documents to be delivered.

 

(a)

Tax forms, documents or certificates to be delivered are:

 

Each party agrees to complete (accurately and in a manner reasonably satisfactory to the other party), execute, arrange for any required certification of, and deliver to the other party or such government or taxing authority as such other party directs, any form, document, or certificate that may be required or reasonably requested in order to allow such other party to make payment under this Agreement without any deduction or withholding for or on the account of any Tax rate, promptly upon the earlier of (i) reasonable demand, (ii) learning that the form, document or certificate is required, or (iii) learning that the form, document or certificate previously provided has become obsolete or incorrect.

 

 

(b)

Other Documents to be delivered are:

 

 

Part 4.

Miscellaneous.

 

(a)

Addresses for Notices: For the purpose of Section 12(a) of this Agreement:

 

Address for notices or communications to the Counterparty:

Address:

Goldman Sachs Mitsui Marine Derivative Products, L.P.

85 Broad Street
New York, New York 10004

Attention: Swap Administration
Facsimile No.: 212-902-5692
Telephone No.: 212-902-1000

Address for notices or communications to the Trust:

(For all purposes)

Address:

SLC Private Student Loan Trust 2006-A
c/o Wilmington Trust Company
1100 North Market Street
Wilmington, Delaware 19890-0001

Attention: Corporate Trust Administration
Facsimile No.:   302-636-4140
Telephone No.: 302-636-6194

Electronic Messaging System Details: None

 

With copies to:

The Student Loan Corporation
750 Washington Boulevard, 9^th Floor
Stamford, CT 06901

Attention: Treasurer
Facsimile No.:    203-975-6299
Telephone No.:  203-975-6320
Electronic Messaging System Details: None

For purposes of notices under Section 5, 6, 7 and 12(b) of this Agreement:

Address:

The Student Loan Corporation
750 Washington Boulevard, 9^th Floor
Stamford, CT 06901

Attention: Treasurer
Facsimile No.:  203-975-6299
Telephone No.: 203-975-6292

and

The Student Loan Corporation
750 Washington Boulevard, 9^th Floor
Stamford, CT 06901

Attention: CFO
Facsimile No.:   203-975-6299
Telephone No.:  203-975-6112

 

(b)

Process Agent.  For the purpose of Section 13(c) of this Agreement:

 

The Counterparty appoints as its Process Agent: Not Applicable.

The Trust appoints as its Process Agent: Not Applicable.

 

(c)

Offices.  With respect to the Counterparty, the provisions of Section 10(a) will apply to this Agreement.

 

(d)

Multibranch Party.  For the purpose of Section 10(c) of this Agreement:

 

The Counterparty is not a Multibranch Party.

The Trust is not a Multibranch Party.

(e)

Calculation Agent.  The Calculation Agent is the Counterparty unless an Event of Default applicable to the Counterparty has occurred and is continuing or a Termination Event under this Agreement has occurred and is continuing with respect to which the Counterparty is the sole Affected Party, in which case the Trust shall become the Calculation Agent.  The Counterparty hereby consents to and agrees to the delegation by the Trust of all of its obligations as Calculation Agent to the Administrator of the Trust.  All determinations and calculations by the Calculation Agent shall be (i) made in good faith and in a commercially reasonable manner and (ii) determined, where applicable, on the basis of then prevailing market rates or prices.

 

(f)

Credit Support Document.  Details of any Credit Support Document:

 

The Counterparty:

The Credit Support Annex between the parties hereto annexed hereto which supplements, forms part of, and is subject to, this Agreement.

 

The Trust:

The Credit Support Annex between the parties hereto annexed hereto which supplements, forms part of, and is subject to, this Agreement, solely in respect of the Trust’s obligations under Paragraph 3(b) of the Credit Support Annex.

 

(g)

Credit Support Provider.

 

Credit Support Provider means in relation to the Counterparty:  Not Applicable.

 

Credit Support Provider means in relation to the Trust:  Not Applicable.

 

(h)

Governing Law and Jurisdiction.  This Agreement will be governed by and construed in accordance with the laws of the State of New York (without reference to choice of law doctrine) and each party hereby submits to the jurisdiction of the state and federal courts having jurisdiction over the State of New York and the City of New York.

 

(i)

Netting of Payments.  Subparagraph (ii) of Section 2(c) of this Agreement will apply to any Transaction under this Agreement.

 

(j)

“Affiliate” will have the meaning specified in Section 14 of this Agreement.

 

Part 5.

Other Provisions.

 

(a)

Amendments to the Agreement.

 

(1)

Section 1(c) of this Agreement is amended by the addition of the words “, any credit support annex from time to time entered into between the Counterparty and the Trust with respect to this Master Agreement” after the words “Master Agreement”.

 

(2)

Section 3 of this Agreement is hereby amended by inserting the following as Section 3(g) 3(h) and 3(i) which read in their entirety as follows:

 

(g)   Eligible Contract Participant.  Each party represents to the other party (which representation will be deemed to be repeated by each party on each date on which a Transaction is entered into) that it is an “eligible contract participant” as defined in Section 1a(12) (7 U.S.C. Section 1a(12)) of the U.S. Commodity Exchange Act (the “CEA”).

(h)   Qualified Financial Contract, Swap Agreement.  In the case of the Counterparty: Without limiting the applicability of any other provision of the U.S. Bankruptcy Code as amended (the “Bankruptcy Code”) (including without limitation Sections 362, 546, 556, and 560 thereof and the applicable definitions in Section 101 thereof), it intends and acknowledges that this Agreement, including all Transactions hereunder, together with the relevant provisions of the Indenture and the Administration Agreement, shall constitute a “swap agreement” as defined in Section 101 of the Bankruptcy Code, that the rights of the parties under Section 6 of this Agreement will constitute contractual rights to liquidate Transactions, that any margin or collateral provided under any margin, collateral, security, or similar agreement related hereto will constitute a “margin payment” as defined in Section 101 of the Bankruptcy Code, and that the parties are entitled to the rights under, and protections afforded by, Sections 362, 546, 556, and 560 of the Bankruptcy Code.

In the case of the Trust: Without limiting the applicability of any other provision of the U.S. Bankruptcy Code as amended (the “Bankruptcy Code”) (including without limitation Sections 362, 546, 556, and 560 thereof and the applicable definitions in Section 101 thereof, it intends and acknowledges that this Agreement, including all Transactions hereunder, shall constitute a “swap agreement” as defined in Section 101 of the Bankruptcy Code, that the rights of the parties under Section 6 of this Agreement will constitute contractual rights to liquidate Transactions, that any margin or collateral provided under any margin, collateral, security, or similar agreement related hereto will constitute a “margin payment” as defined in Section 101 of the Bankruptcy Code, and that the parties are entitled to the rights under, and protections afforded by, Sections 362, 546, 556, and 560 of the Bankruptcy Code.

(i)   Non-Reliance.  Each party represents to the other that (i) it is not relying upon any representations except those expressly set forth in this Agreement or any Confirmation evidencing a Transaction; (ii) it has consulted with its own business, financial, investment, tax, accounting and legal advisors to the extent it has deemed appropriate in connection with its decision to enter into this Agreement and each such Transaction; and (iii) it has independently evaluated the potential financial benefits and risks, the tax and accounting implications and its policies and objectives of this Agreement and each such Transaction, and has independently decided to enter into this Agreement and each such Transaction on the basis of such evaluation.  Each party represents to the other that it is not acting as a fiduciary or an advisor for such party in respect of the Transaction and each party is entering into this Agreement as principal and not as agent.  Each party represents to the other party that it has entered into this Transaction in reliance upon such tax, accounting, regulatory, legal, and financial advice as it deems necessary and not upon any view expressed by the other party.  Each party represents to the other party that it is entering into this Agreement and each Transaction as principal and not as agent of any person.

(j) Additional Representations of the Trust.  The Trust represents to the Counterparty as of the date hereof that:

(i) With respect to each source of funds to be used by it to enter into such Transactions (each such source being referred to herein as a “source”), the Source is not the assets of any “plan” (as such term is defined in Section 4975 of the Code) subject to Section 4975 of the Code or any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) subject to Title I of ERISA, or otherwise out of “plan assets” within the meaning of United States Department of Labor regulation Section 2510.3-101, and