HSBC Bank USA, National Association
4/12/2007
Reference: 476100HN
HSBC Bank USA, National Association
452 Fifth Avenue
New York, NY
10018
Fax: (212) 525-5517
Reference: 476100HN
DATE:
MARCH 29, 2007
TO:
U.S. BANK NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY BUT
SOLELY AS SUPPLEMENTAL
INTEREST TRUST TRUSTEE ON BEHALF OF THE SUPPLEMENTAL INTEREST TRUST
WITH RESPECT TO THE RASC
SERIES 2007-KS3 TRUST, HOME EQUITY MORTGAGE ASSET-BACKED
PASS-THROUGH CERTIFICATES, SERIES
2007-KS3
EP-MN-WS3D
60 LIVINGSTON AVENUE
ST. PAUL, MN
55107
ATTENTION:
RASC SERIES 2007-KS3 SUPPLEMENTAL INTEREST TRUST
FACSIMILE:
651-495-8090
TO:
RESIDENTIAL FUNDING SECURITIES, LLC
ADDRESS :
7501 WISCONSIN AVE, SUITE 900
BETHESDA, MD 20814
ATTENTION:
MICHAEL SCARSETH
FACSIMILE:
952-921-9133
FROM :
HSBC BANK USA, NATIONAL ASSOCIATION
FACSIMILE :
212-525-5517
SUBJECT:
FIXED INCOME DERIVATIVES CONFIRMATION
REFERENCE:
476100HN
-------------------------------------------------------------------------------------------------------------------
The purpose of this
long-form
confirmation
("CONFIRMATION")
is to confirm the terms and conditions of the current
Transaction
entered into on the Trade Date
specified
below (the
"TRANSACTION")
between
HSBC Bank USA,
National
Association ("PARTY A") and U.S. Bank National
Association,
not individually,
but solely as supplemental
interest
trust trustee (the "Supplemental
Interest Trust Trustee") on behalf of the supplemental
interest trust with respect
to the RASC Series
2007-KS3 Trust,
Home Equity Mortgage
Asset-Backed
Pass-Through
Certificates,
Series 2007-KS3
(the
"Supplemental
Interest
Trust")
("PARTY B") created
under the Pooling and Servicing
Agreement,
dated as of
March 1, 2007 (together the "POOLING AND SERVICING AGREEMENT"),
among Residential Asset Securities
Corporation,
as
Depositor,
Residential Funding Company, LLC, as Master Servicer,
and U.S. Bank National Assocation,
as trustee and
supplemental
interest trust trustee.
This
Confirmation
evidences a complete and binding agreement between you and
us to enter into the
Transaction
on the terms set forth below and replaces any previous
agreement
between us with
respect to the subject
matter
hereof.
This
Confirmation
constitutes
a
"CONFIRMATION"
and also
constitutes
a
"SCHEDULE" as referred to in the ISDA Master Agreement, and
Paragraph 13 of a Credit Support Annex to the Schedule.
1.
This
Confirmation
shall
supplement,
form a part of, and be subject to an
agreement in the form of the
ISDA
Master
Agreement
(Multicurrency
-
Cross
Border)
as
published
and
copyrighted
in
1992 by the
International
Swaps and
Derivatives
Association,
Inc. (the "ISDA MASTER
AGREEMENT"),
as if Party A and
Party B had executed an
agreement
in such form on the date hereof,
with a Schedule as set forth in Item 3
of this
Confirmation,
and an 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., with Paragraph 13 thereof as set forth in Annex A hereto (the
"CREDIT
SUPPORT
ANNEX").
For the avoidance of doubt, the Transaction
described herein shall be the sole Transaction governed by such
ISDA
Master
Agreement.
In the
event of any
inconsistency
among
any of the
following
documents,
the
relevant document first listed shall govern:
(i) this
Confirmation,
exclusive of the provisions set forth
in Item 3 hereof and Annex A hereto; (ii) the provisions set forth
in Item 3 hereof,
which are incorporated
by reference
into the Schedule;
(iii) the Credit
Support Annex;
(iv) the
Definitions;
and (v) the ISDA
Master Agreement.
Each reference herein to a "Section" (unless
specifically
referencing the Pooling and Servicing Agreement)
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
provisions
herein
deemed incorporated in a 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.
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 amount set forth
for such period on Schedule I attached hereto.
Trade Date:
March 23, 2007
Effective Date:
March 29, 2007
Termination Date:
April 25, 2011,
subject to adjustment in accordance
with the
Following Business Day Convention.
Fixed Amounts:
Fixed Rate Payer:
Party B
Fixed Rate Payer
Period End Dates:
The 25th
calendar
day of each month
during the Term of this
Transaction,
commencing
April 25,
2007,
and
ending on the
Termination
Date,
subject to adjustment
in accordance
with
the Following Business Day Convention.
Fixed Rate Payer
Payment Dates:
Early
Payment
-
Two
Business
Days
preceding
the
25th
calendar
day
of
each
month
during
the
Term
of
this
Transaction,
commencing
April 25,
2007,
and
ending on the
Termination Date.
Fixed Rate:
5.03%
Fixed Amount:
To be determined in accordance with the following formula:
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
Period End Dates:
The 25th
calendar
day of each month
during the Term of this
Transaction,
commencing
April 25,
2007,
and
ending on the
Termination
Date,
subject to adjustment
in accordance
with
the Business Day Convention.
Floating Rate Payer
Payment Dates:
Early
Payment
-
Two
Business
Days
preceding
the
25th
calendar
day
of
each
month
during
the
Term
of
this
Transaction,
commencing
April 25,
2007,
and
ending on the
Termination Date
Floating Rate Option:
USD-LIBOR-BBA
Floating Amount:
To be determined in accordance with the following formula:
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
Business Days:
New York
Business Day Convention:
Following
Calculation Agent:
Party A
3.
Provisions Deemed Incorporated in a Schedule to the ISDA Master
Agreement:
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 Section
5(a)(i) is hereby amended by replacing the word "third"
with the word
"first";
provided,
further,
that
notwithstanding
anything
to the
contrary
in
Section
5(a)(i),
any failure by Party A to comply with or perform any
obligation
to be complied
with or
performed
by Party A under the Credit
Support
Annex
shall not
constitute
an Event of
Default under Section 5(a)(i) unless (A) a Required
Ratings
Downgrade Event has occurred and been
continuing
for 30 or more Local
Business
Days and (B) such
failure is not remedied on or before
the third Local Business Day after notice of such failure is given
to Party A.
(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)
of
the
Credit
Support
Annex;
provided,
however,
that
notwithstanding
anything
to the
contrary
in
Section
5(a)(iii)(1),
any
failure by Party A to
comply
with or perform
any
obligation
to be
complied
with or
performed
by Party A under the
Credit
Support Annex shall not constitute an Event of Default under
Section
5(a)(iii)
unless (A)
a Required
Ratings
Downgrade Event has occurred and been continuing for 30 or more
Local Business
Days and (B) such
failure is not
remedied on or before the third Local
Business Day after notice
of such failure is given to Party A.
(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 , except that such term
shall not include
obligations in respect of deposits
received in the ordinary course of Party A's
banking business.
"Threshold
Amount"
means with
respect to Party A an amount
equal to three
percent
(3%) of the
Shareholders'
Equity of Party A (as set forth in Party A's Call
Report)
or, if
applicable,
the
Eligible Guarantor.
"Shareholders'
Equity"
means with
respect to an
entity,
at any time,
the sum (as shown in the
most
recent
annual
audited
financial
statements
of
such
entity)
of (i) its
capital
stock
(including
preferred stock)
outstanding,
taken at par value,
(ii) its capital surplus and (iii)
its retained
earnings,
minus (iv)
treasury
stock,
each to be
determined
in
accordance
with
generally accepted accounting principles.
(vii)
The
"BANKRUPTCY"
provisions of Section
5(a)(vii) will apply to Party A and will apply to Party B except
that the provisions of Section
5(a)(vii)(2),
(6) (to the extent that such provisions refer to any
appointment
contemplated or effected by the Pooling and Servicing
Agreement or any appointment to
which Party B has not become
subject),
(7) and (9) will not apply to Party B; provided that, with
respect
to Party B only,
Section
5(a)(vii)(4)
is
hereby
amended
by
adding
after
the words
"against it" the words
"(excluding
any proceeding or petition
instituted or presented by Party A
or its
Affiliates)",
and Section
5(a)(vii)(8)
is hereby
amended by deleting
the words "to (7)
inclusive" and inserting lieu thereof ", (3), (4) as amended, (5),
(6) as amended, or (7)".
(viii)
The
"MERGER
WITHOUT
ASSUMPTION"
provisions
of Section
5(a)(viii)
will apply to Party A and will not
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 except that, for purposes of
the
application
of Section
5(b)(ii) to Party A, Section
5(b)(ii) is hereby
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 the "TAX
EVENT" provisions of Section 5(b)(ii) 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
will apply,
provided,
however,
that, in the event of a Derivative
Provider
Trigger
Event, the following provisions will apply:
(A)
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,
a Firm
Offer which is (1) made by a Reference
Market-maker that is an Eligible Replacement,
(2)
for an amount that would be paid to Party B (expressed
as a negative
number) or by Party
B (expressed as a positive number) in
consideration
of an agreement
between Party B and
such Reference Market-maker to enter into a Replacement
Transaction,
and (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.
(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 Party B, at the direction of the Master Servicer),
equal to:
(a)
If a
Market
Quotation
for the
relevant
Terminated
Transaction
or
group of
Terminated
Transactions
is accepted by Party B, at the
direction of the Master
Servicer,
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 Party B, at the
direction
of the
Master
Servicer,
may
specify
in
writing
to Party
A, but in
either
case no later
than one
Local
Business
Day
prior
to 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 Party B, at the
direction
of the Master
Servicer,
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 Party B, at the
direction
of the Master
Servicer,
so as to become
legally
binding and no Market
Quotation
from an Approved
Replacement
remains
capable of becoming legally binding upon acceptance,
the Settlement Amount shall
equal Party B's Loss (whether
positive or negative and without
reference to any
Unpaid
Amounts) for the relevant
Terminated
Transaction or group of Terminated
Transactions.
(C)
If Party B, at the
direction
of the
Master
Servicer,
requests
Party A in
writing to
obtain Market
Quotations,
Party A shall use its
reasonable
efforts to do so before the
Latest Settlement Amount Determination Day.
(D)
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-off
against any amount payable by Party B under the immediately
preceding clause (I)."
(E)
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,
Party B 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).
(ii)
The Second Method will apply.
(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
national
banking
association
organized
under the
federal
laws of the
United States and its U.S.
taxpayer identification number is 20-1177241.
(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, and
Section
2(d)(ii)
shall not
apply to Party B as Y, in each case such that Party B shall not be
required
to pay any
additional
amounts referred to therein.
(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 Party A, any Tax and,
in
relation to
payments by Party B, no Tax.
PART 3.
AGREEMENT TO DELIVER DOCUMENTS.
(a)
For the purpose of Section 4(a)(i), tax forms, documents, or
certificates to be delivered are:
PARTY REQUIRED TO
FORM/DOCUMENT/
DATE BY WHICH TO
DELIVER DOCUMENT
CERTIFICATE
BE DELIVERED
Party A
A
correct,
complete
and
duly
executed
U.S.
to be provided upon request
Internal
Revenue
Service
Form
(or
successor
thereto),
together
with
appropriate
attachments,
that
eliminates
U.S.
federal
withholding
and
backup
withholding
Tax
on
payments to Party A under this Agreement.
Party B
Tax forms
relating to the
beneficial
owner of
to be provided upon request
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
DELIVER DOCUMENT
CERTIFICATE
BE DELIVERED
SECTION 3(D)
REPRESENTATION
Party A and
Any
documents
required
by
the
Upon the execution and delivery of
Yes
Party B
receiving
party
to
evidence
the
this Agreement
authority of the delivering
party or
its Credit Support Provider,
if any,
for it to
execute
and
deliver
the
Agreement,
this
Confirmation,
and
any
Credit
Support
Documents
to
which it is a party,
and to evidence
the
authority
of
the
delivering
party or its Credit Support
Provider
to perform its obligations
under the
Agreement,
this Confirmation and any
Credit Support Document,
as the case
may be
Party A and
A certificate of an authorized
officer
Upon the execution and delivery of
Yes
Party B
of the party,
as to the incumbency and
this Agreement
authority
of the
respective
officers
of the
party
signing
the
Agreement,
this
Confirmation,
and
any
relevant
Credit
Support
Document,
as the case
may be
Party A
Annual Financial
Statements of Party A
Promptly upon request made by Party B
Yes
as set forth in Party A's Call Report
Party A
Quarterly
Financial
Statements
of
Promptly upon request made by Party B
Yes
Party A as set
forth in Party A's Call
Report
Party A
An opinion of counsel to Party A
Upon the execution and delivery of
No
this Agreement
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:
452 Fifth Avenue, New York, NY
10018
Attention:
Christian McGreevy
Facsimile:
212-525-8710
Telephone:
212-525-5517
Please direct all settlement inquiries to:
HSBC Bank USA, National Association
Derivative Settlements
Attention:
Jeffrey Lombino
Telephone:
(212) 525-5393
Fax:
(212) 525-6903
(For all purposes)
Address for notices or communications to Party B:
Address:
RASC Series 2007-KS3 Trust
c/o U.S. Bank National Association
60 Livingston Avenue
EP-MN-WS3D
St.
Paul, MN 55107
Facsimile No.: 651-495-8090
Telephone No: 651-495-3880
with a copy to:
Address:
Residential Funding Company LLC
8400 Normandale Lake Blvd.
Minneapolis, MN 55437
Attention:
Michael Scarseth
Facsimile No.:
952-921-9133
Telephone No:
952-857-6518
(For all purposes)
(b)
PROCESS AGENT.
For the purpose of Section 13(c):
Party A appoints as its Process Agent:
Not applicable.
Party B appoints as its Process Agent:
Not applicable.
(c)
OFFICES.
The provisions of Section 10(a) will apply to this Agreement
(d)
MULTIBRANCH PARTY.
For the purpose of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e)
CALCULATION
AGENT. The Calculation Agent is Party A; provided,
however,
that if an Event of Default shall
have
occurred
with
respect to Party A, Party B shall
have the right to
appoint as
Calculation
Agent a
third party, reasonably acceptable to Party A, the cost for which
shall be borne by 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:
None
(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,
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.
The
parties
agree
that
subparagraph
(ii) of
Section
2(c)
will
apply to each
Transaction hereunder.
(j)
AFFILIATE.
"Affiliate"
shall have the meaning
assigned
thereto in Section 14;
provided,
however,
that
Party A and Party B shall be deemed to have no
Affiliates
for purposes of this
Agreement,
including
for
purposes of Section 6(b)(ii).
PART 5.
OTHERS 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 Pooling and Servicing Agreement.
(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)
CONDITIONS PRECEDENT.
Section
2(a)(iii) is hereby
amended by adding the
following at the end
thereof:
Notwithstanding
anything to the
contrary
in Section
2(a)(iii)(1),
if an Event of Default
with
respect to Party B or
Potential
Event of Default
with
respect to Party B has
occurred and been
continuing
for more than 30 Local
Business Days and no Early
Termination
Date in respect of the
Affected
Transactions has occurred or been
effectively
designated by Party A, the obligations of
Party A under Section
2(a)(i)
shall cease to be subject to the
condition
precedent set forth in
Section
2(a)(iii)(1)
with respect to such
specific
occurrence
of such Event of Default or such
Potential Event of Default (the "SPECIFIC EVENT");
provided,
however, for the avoidance of doubt,
the
obligations of Party A under Section
2(a)(i) shall be subject to the condition
precedent set
forth
in
Section
2(a)(iii)(1)
(subject
to
the
foregoing)
with
respect
to
any
subsequent
occurrence
of the same Event of Default
with
respect
to Party B or
Potential
Event of Default
with respect to Party B after the Specific
Event has ceased to be
continuing
and with respect to
any
occurrence
of any other
Event of
Default
with
respect
to Party B or
Potential
Event of
Default with respect to Party B that occurs subsequent to the
Specific Event.
(iii)
CHANGE OF
ACCOUNT.
Section
2(b) is hereby
amended by the
addition of the
following
after the
word "delivery" in the first line thereof:
"to another account in the same legal and tax jurisdiction as the
original account".
(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 regarding the Transaction
(whether written or oral),
other than the
representations
expressly made in this Agreement or the
Confirmation in respect
of that
Transaction
and (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.
Notwithstanding
the foregoing,
in the case of the
Supplemental
Interest Trust
Trustee,
it has been
directed by the Pooling and
Servicing
Agreement to enter
into this Transaction.
(2)
Evaluation
and
Understanding.
(i) It has the capacity to evaluate
(internally
or through independent
professional advice) the Transaction and has made its own
decision
to
enter
into the
Transaction
and (ii) It
understands
the
terms,
conditions and risks of the
Transaction
and is willing and able to accept those
terms and
conditions
and to assume
those
risks,
financially
and
otherwise.
Notwithstanding
the foregoing,
in the case of the
Supplemental
Interest Trust
Trustee,
it has been
directed by the Pooling and
Servicing
Agreement to enter
into this Transaction.
(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 by (i)
deleting
the
words "or if a Tax Event Upon Merger
occurs and the
Burdened
Party is the
Affected
Party," and
(ii) by deleting the words "to transfer"
and inserting the words "to effect a Permitted
Transfer"
in lieu thereof.
(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
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