EXHIBIT 99.3
(CITIGROUP LOGO)
DATE: August 25, 2006
TO: Origen Manufactured Housing Contract Trust 2006-A
FROM: CITIBANK, N.A., a national banking association organized under
the laws of the United States, as swap provider Confirmations
Unit
333 West 34th Street, 2nd Floor
New York, NY 10001, USA
Tel: (212) 615-8981
Fax: (212) 615-8985
SUBJECT: Fixed Income Derivatives Confirmation and Agreement
REFERENCE NUMBER: M064636A
The purpose of this letter agreement ("Agreement") is to confirm the terms and
conditions of the current Transaction entered into on the Trade Date specified
below (the "Transaction") between Citibank, N.A., as swap provider ("Party A"),
and Origen Manufactured Housing Contract Trust 2006-A ("Party B"). This
Agreement, which evidences a complete and binding agreement between you and us
to enter into the Transaction on the terms set forth below, constitutes a
"Confirmation" as referred to in the "ISDA Form Master Agreement" (as defined
below), as well as a "Schedule" as referred to in the ISDA Form Master
Agreement.
1. This Agreement is subject to the 2000 ISDA Definitions (the "Definitions"),
as published by the International Swaps and Derivatives Association, Inc.
("ISDA"). You and we have agreed to enter into this Agreement in lieu of
negotiating a Schedule to the 1992 ISDA Master Agreement (Multicurrency--Cross
Border) form (the "ISDA Form Master Agreement") but, rather, an ISDA Form Master
Agreement shall be deemed to have been executed by you and us on the date we
entered into the Transaction. Terms capitalized but not defined herein except in
the Definitions shall have the respective meanings attributed to them in the
Indenture, dated as of August 1, 2006, between Origen Manufactured Housing
Contract Trust 2006-A, as issuer, and JPMorgan Chase Bank, N.A., as indenture
trustee (the "Indenture"). In the event of any inconsistency between or among
any provisions of this Agreement, the Definitions, the Indenture or the ISDA
Form Master Agreement, the provisions of the foregoing documents will prevail in
the following decreasing order of priority for the purposes of the Transaction:
(i) this Agreement, (ii) the Indenture, (iii) the Definitions or (iv) the ISDA
Form Master Agreement. Each reference 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 Form Master Agreement.
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 aggregate
note balance of all notes then outstanding (including,
for the avoidance of doubt, any notes issued pursuant
to any supplemental indenture entered into pursuant to
the terms of
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Indenture) immediately preceding the related Floating
Rate Payer Payment Date.
Trade Date: August 15, 2006
Effective Date: August 25, 2006
Termination Date: October 15, 2037, subject to adjustment in accordance
with the Following Business Day Convention.
FIXED AMOUNT:
Fixed Rate Payer: Party B
Fixed Rate Payer
Period End Dates: The 15th calendar day of each month during the Term of
this Transaction, commencing in September, 2006, and
ending on the Termination Date, subject to adjustment
in accordance with the Following Business Day
Convention.
Fixed Rate Payer
Payment Dates: The Business Day immediately preceding the 15th
calendar day of each month during the Term of this
Transaction, commencing in September, 2006 and ending
on the Termination Date.
Fixed Rate: 5.4775%
Fixed Rate Day
Count Fraction: 30/360
FLOATING AMOUNTS:
Floating Rate Payer: Party A
Floating Rate Payer
Period End Dates: The 15th calendar day of each month during the Term of
this Transaction, commencing in September, 2006, and
ending on the Termination Date, subject to adjustment
in accordance with the Following Business Day
Convention.
Floating Rate Payer
Payment Dates: The Business Day immediately preceding the 15th
calendar day of each month during the Term of this
Transaction, commencing in September, 2006, and ending
on the Termination Date.
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Floating Rate Option: USD-LIBOR-BBA; provided that the Floating Rate shall be
determined two (2) London and New York Business Days
prior to the Reset Date.
Designated Maturity: One month, provided that Linear Interpolation is
applicable to the first Calculation Period
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; provided that if an Event of Default shall
have occurred with respect to which Party A is the
Defaulting Party or a Termination Event shall have
occurred with respect to which Party A is the sole
Affected Party, Party B shall have the right to
designate a third party that is acceptable to Ambac
Assurance Corporation (the "Insurer") as the
Calculation Agent hereunder.
3. Provisions Deemed Incorporated in a Schedule to the Master Agreement:
Part 1. TERMINATION PROVISIONS. For purposes of the Master Agreement:
(a) "Specified Entity" is not applicable to Party A or Party B for any purpose.
(b) "Breach of Agreement" provision of Section 5(a)(ii) will apply to Party A
and will not apply to Party B.
(c) "Credit Support Default" provisions of Section 5(a)(iii) will apply to Party
A (if Party A posts collateral or provides a guarantee or other contingent
agreement pursuant to Part 5(g) below), and will not apply to Party B.
(d) "Misrepresentation" provisions of Section 5(a)(iv) will not apply to Party A
or Party B.
(e) "Specified Transaction" is not applicable to Party A or Party B for any
purpose, and, accordingly, Section 5(a)(v) shall not apply to Party A or Party
B.
(f) The "Cross Default" provisions of Section 5(a)(vi) will not apply to Party A
or to Party B.
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(g) The "Bankruptcy" provision of Section 5(a)(vii)(2) will apply to Party A and
will not apply to Party B.
(h) The "Merger Without Assumption" provision of Section 5(a)(viii) will apply
to Party A and will not apply to Party B.
(i) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) will not apply
to Party A or Party B.
(j) The "Automatic Early Termination" provision of Section 6(a) will not apply
to Party A or to Party B.
(k) Payments on Early Termination. For the purpose of Section 6(e) of this
Agreement:
(i) Market Quotation will apply.
(ii) the Second Method will apply.
(l) "Termination Currency" means United States Dollars.
(m) Gross Up. The provisions of Section 2(d)(i)(4) and 2(d)(ii) of the printed
ISDA Form Master Agreement shall not apply to Party B and Party B shall not be
required to pay any additional amounts referred to therein.
Part 2. TAX REPRESENTATIONS.
(a) Payer Representations. For the purpose of Section 3(e) of this
Agreement, each of Party A and Party B makes the following representation:
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.
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(b) Payee Representations. For the purpose of Section 3(f) of this
Agreement:
(i) Party A makes the following representation(s):
(A) It is a national banking association organized under the
laws of the United States and its U.S. taxpayer
identification number is 13-5266470. It is "exempt" within
the meaning of Treasury Regulation sections 1.6041-3(p) and
1.6049-4(c) from information reporting on Form 1099 and
backup withholding.
(ii) Party B makes the following representation(s):
(A) It is a statutory trust organised or formed under the laws
of the State of Delaware.
(B) The beneficial owner of the payments made to it under this
Agreement is either (i) a "U.S. person" (as that term is
used in section 1.1441-4(a)(3)(ii) of United States Treasury
Regulations) for United States federal income tax purposes
and an "Exempt recipient" within the meaning of section
1.6049-4(c)(1)(ii) of United States Treasury Regulations, or
(ii) a "non-U.S. branch of a foreign person" as that term is
used in section 1.1441-4(a)(3)(ii) of the United States
Treasury Regulations (the "Regulations") for United States
federal income tax purposes, and it is a "foreign person" as
that term is used in section 1.6041-4(a)(4) of the
Regulations for United States federal income tax purposes.
Part 3. AGREEMENT TO DELIVER DOCUMENTS. For the purpose of Section 4(a):
(1) Tax forms, documents, or certificates to be delivered are:
PARTY REQUIRED TO
DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE DELIVERED
- ----------------- ------------------------- -----------------------------
Party A and Party B Any document required or reasonably requested (A) before the first Payment Date under
to allow the other party to make payments this Agreement, (B) promptly upon
under this Agreement without any deduction or reasonable demand by the other party and
withholding for or on the account of any Tax (C) promptly upon learning that any such
or with such deduction or withholding at a form previously provided by the party
reduced rate has become obsolete or incorrect.
(2) Other documents to be delivered are:
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PARTY REQUIRED TO COVERED BY SECTION
DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE DELIVERED 3(D) REPRESENTATION
- ----------------- ------------------------- ----------------------------- -------------------
Party A and Party B Any documents required by the receiving party Upon the execution and delivery of this Yes
to evidence the authority of the delivering Agreement
party or its Credit Support Provider, if any,
for it to execute and deliver this Agreement
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
this Agreement and/or Credit Support
Document, as the case may be.
Party A and Party B A certificate of an authorized officer of the Upon the execution and delivery of this Yes
party, as to the incumbency and authority of Agreement.
the respective officers of the party signing
this Agreement, any relevant Credit Support
Document as the case may be.
Party A The party's Consolidated reports of Condition Upon request, provided, however, that No
and Income for A Bank with Domestic and such financials are "deemed" to be
Foreign Offices - FFIEC 031 delivered hereunder on the date the same
shall be posted on the Citibank.com
website
Page 7 of 18
(www.citibank.com).
Party B Executed copy of the Pooling and Servicing Upon the execution thereof. No
Agreement.
Party B Opinion of Counsel of Party B in form and Upon the execution and delivery of this No
substance reasonably acceptable to Party A. Agreement.
Party A Opinion of Counsel of Party A in form and Upon the execution and delivery of this No
substance reasonably acceptable to Party B Agreement.
and the Insurer.
Party A Any Credit Support Document The date on which Party A is required to No
deliver the Credit Support Annex,
guarantee or other contingent agreement
under Part 5.
Party B Final Prospectus Supplement The date on which the Final Prospectus Yes
Supplement is dated.
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: Citibank, N.A.
250 West Street
10th Floor
New York, New York 10013
Attention: Director Derivatives Operations
Facsimile: 212 723 2956
(For all purposes)
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In addition, in the case of notices or communications relating to Section
5, 6, 11 or 13 of this Agreement, a second copy of any such notice or
communication shall be addressed to the attention of Party A's legal
department as follows:
Address: Legal Department
77 Water Street
9th Floor
New York, New York 10004
Attention: Department Head
Facsimile No.: 212 657 1452
Address for notices or communications to Party B:
Wilmington Trust Company, not in its individual capacity but solely as
Owner Trustee
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
With a copy to:
Ambac Assurance Corporation
One State Street Plaza
New York, NY 10004
Attention: Surveillance - Origen Manufactured Housing
Contract Trust 2006-A
(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 a Multibranch Party, and may enter into a Transaction through
any of the following offices: New York.
Party B is not a Multibranch Party.
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(e) Credit Support Document.
Party A: None or, in the event that Party A posts collateral under a Credit
Support Annex (as defined below) or provides a guarantee or other
contingent agreement pursuant to Part 5(g) below, such Credit
Support Annex or guarantee or other contingent agreement.
Party B: None.
(f) Credit Support Provider.
Party A: None or, in the event that Party A provides a guarantee or other
contingent agreement pursuant to Part 5(g) below, such guarantor
or other provider of credit support, if applicable.
Party B: None.
(g) 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.
(h) Netting of Payments. The parties agree that subparagraph (ii) of Section
2(c) of the ISDA Form Master Agreement will apply to any Transaction. For the
avoidance of doubt, the Transaction described herein shall be the sole
Transaction governed by the ISDA Form Master Agreement, and netting between this
Transaction and any other transaction that between the parties hereto shall not
be permitted without the prior written consent of the Insurer.
(i) Affiliate will have the meaning given the term in Section 14 of the ISDA
Form Master Agreement; provided that Party B shall be deemed not to have any
Affiliates.
(j) Jurisdiction. Section 13(b)(i) of the Agreement is hereby amended by
deleting in line 2 of paragraph 2 the word "non-" and by deleting paragraph 3
thereof. The following shall be added at the end of Section 13(b): "Nothing in
this provision shall prohibit a party from bringing an action to enforce a money
judgment in any other jurisdiction."
(k) Effectiveness of Notice. Section 12(a) of the Agreement is hereby amended by
deleting the words "facsimile transmission or" in line 3 thereof.
Part 5. OTHER PROVISIONS.
(a) Severability. If any term, provision, covenant, or condition of this
Agreement, or the application thereof to any party or circumstance, shall be
held to be invalid or unenforceable (in whole or in part) for any reason, the
remaining terms, provisions, covenants, and conditions hereof shall continue in
full force and effect as if this Agreement had been executed with the invalid or
unenforceable portion eliminated, so long as this Agreement as so modified
continues to express, without material change, the original intentions of the
parties as to the subject matter of this
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Agreement and the deletion of such portion of this Agreement will not
substantially impair the respective benefits or expectations of the parties.
The parties shall endeavor to engage in good faith negotiations to replace any
invalid or unenforceable term, provision, covenant or condition with a valid or
enforceable term, provision, covenant or condition, the economic effect of which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
(b) 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 officers or employees of the parties, waives any further
notice of such monitoring or recording, and agrees to notify its officers and
employees of such monitoring or recording.
(c) Waiver of Jury Trial. Each party waives any right it may have to a trial by
jury in respect of any Proceedings relating to this Agreement or any Credit
Support Document.
(d) Set-Off. The provisions for Set-off set forth in Section 6(e) of the ISDA
Form Master Agreement shall not apply for purposes of this Transaction.
Notwithstanding any 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.
(e) Additional Definitional Provisions.
As used in this Agreement, the following terms shall have the meanings set forth
below, unless the context clearly requires otherwise:
"Moody's" means Moody's Investors Service, Inc., or any successor.
"S&P" means Standard & Poor's Ratings Services, or any successor.
(f) Additional Termination Events. Additional Termination Events will apply:
(i) If a Rating Agency Downgrade has occurred and Party A has not complied
with Part 5(g) below, then an Additional Termination Event shall have
occurred with respect to Party A and Party A shall be the sole Affected
Party with respect to such Additional Termination Event.
(ii) An Additional Termination Event shall occur under the ISDA Form Master
Agreement upon unrescindable notice by the person exercising a right to
redeem all of the Notes that it will purchase all Contracts in accordance
with Section 8.07 of the Indenture. With respect to such Additional
Termination Event, Party B shall be the sole Affected Party and this
Transaction shall be the sole Affected Transaction; provided, however, that
notwithstanding Section 6(b)(iv) of the ISDA Form Master Agreement, either
party may designate an Early Termination Date in respect of this Additional
Termination Event; provided, further, that such Early Termination Date,
shall be on the final Payment Date under the Indenture, and
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any amount payable pursuant to Section 6(e) of the ISDA Form Master
Agreement in connection with such Additional Termination Event shall be
payable on such final Payment Date.
(iii) If, upon the occurrence of a Swap Disclosure Event (as defined in
Part 5(m) below) Party A has not, within 10 Business Days after such Swap
Disclosure Event complied with any of the provisions set forth in clause
(iii) of Part 5(m) below, then an Additional Termination Event shall have
occurred with respect to Party A and Party A shall be the sole Affected
Party with respect to such Additional Termination Event.
(iv) An Additional Termination Event, in respect of which Party B will be
the sole Affected Party, will occur if the Indenture is amended, modified
or otherwise supplemented in a manner which would have a material adverse
effect on Party A, without the prior written consent of Party A, where such
consent is required under the Indenture (such consent not to be
unreasonably withheld, conditioned or delayed).
(v) An Additional Termination Event, in respect of which Party B will be
the sole Affected Party, upon the liquidation of the Collateral (as defined
in the Indenture) following an Event of Default (as defined in the
Indenture), provided however that notwithstanding Section 6(b)(iv) of the
ISDA Form Master Agreement, either party may designate an Early Termination
Date in respect of this Additional Termination Event; provided, further,
that such Early Termination Date, shall be on the final Payment Date under
the Indenture, and any amount payable pursuant to Section 6(e) of the ISDA
Form Master Agreement in connection with such Additional Termination Event
shall be payable on such final Payment Date.
(g) Rating Agency Downgrade. In the event that (i) Party A's long-term unsecured
and unsubordinated debt rating is reduced below "A+" by S&P or Party A's
short-term unsecured and unsubordinated debt rating is reduced below "A-1" by
S&P, or (ii) Party A's long-term unsecured and unsubordinated debt rating is
reduced below "A1" by Moody's or its short-term unsecured and unsubordinated
debt rating is reduced below "P1" by Moody's, or, in the event that Party A does
not have a short-term rating from Moody's, if Party A's long-term unsecured and
unsubordinated debt rating is reduced below "Aa3" by Moody's (Moody's together
with S&P, the "Swap Rating Agencies" and such rating thresholds, "Approved
Rating Thresholds" and any such reduction below the Approved Rating Thresholds,
a "Collateral Rating Downgrade Event"), then within 30 days after such rating
withdrawal or downgrade (unless, within 30 days after such withdrawal or
downgrade, each such Swap Rating Agency that has downgraded Party A has
reconfirmed the rating of the Origen Manufactured Housing Contract Trust
Collateralized Notes, Series 2006-A (the "Notes"), which was in effect
immediately prior to such withdrawal or downgrade), Party A shall, at its own
expense, subject to the Rating Agency Condition, either (i) seek another entity
to replace Party A as party to this Agreement that meets or exceeds the Approved
Rating Thresholds on terms substantially similar to this Agreement, (ii) obtain
a guaranty of, or a contingent agreement of another person with the Approved
Rating Thresholds, to honor, Party A's obligations under this Agreement, or
(iii) post collateral equal to the amount required pursuant to the then-current
published criteria of the applicable Swap Rating Agency (or, if there is no such
criteria, an amount equal to Party B's "Exposure" (as such term is defined in
the Credit Support Annex) of the Transaction) pursuant to the form of the 1994
ISDA Credit Support Annex (New York law) (the
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"Credit Support Annex") the terms of which are hereby incorporated by reference
herein. In the event that Party A's long-term unsecured and unsubordinated debt
rating is withdrawn or reduced below "BBB-" by S&P or "Baa3" by Moody's (a
"Required Rating Downgrade Event"), then within 10 Business Days after such
rating withdrawal or downgrade, Party A shall, subject to the Rating Agency
Condition and at its own expense, either (i) secure another entity to replace
Party A as party to this Agreement that meets or exceeds the Approved Rating
Thresholds on terms substantially similar to this Agreement or (ii) obtain a
guaranty of, or a contingent agreement of another person with the Approved
Rating Thresholds, to honor, Party A's obligations under this Agreement. For
purposes of this provision, "Rating Agency Condition" means, with respect to any
particular proposed act or omission to act hereunder that the party acting or
failing to act must consult with each of the Swap Rating Agencies then providing
a rating of the Notes and receive from each of the Swap Rating Agencies a prior
written confirmation that the proposed action or inaction would not cause a
downgrade or withdrawal of the then-current rating of any Notes. For purposes of
this Agreement, the occurrence of either a Collateral Rating Downgrade Event or
a Required Rating Downgrade Event may be referred to as a rating agency
downgrade (a "Rating Agency Downgrade"). The failure by Party A to comply with
any of its obligations in this Part 5(g) shall not result in an Event of Default
but shall instead be subject to the provisions of Part (f)(i) above. At any time
that Party A assigns this Agreement to a replacement counterparty meeting the
Approved Rating Thresholds as provided above, Party A shall no longer have any
obligation to post collateral as provided above and Party B shall promptly
return any then-posted collateral to Party A. At any time after the occurrence
of a Rating Agency Downgrade, if the ratings of Party A's guarantor (or, if
Party A has no guarantor, of Party A) are upgraded so as to meet the Approved
Rating Thresholds, Party A shall no longer have any obligation to post
collateral, assign this Agreement to a replacement counterparty or find a
guarantor as provided above and Party B shall promptly return any then-posted
collateral, if any, to Party A.
(h) Payment Instructions. Party A hereby agrees that, unless notified in writing
by the Supplemental Interest Trust Trustee of other payment instructions, any
and all amounts payable by Party A to Party B under this Agreement shall be paid
to the account specified in paragraph 4 below.
(i) Section 3 of the ISDA Form Master Agreement is hereby amended by adding at
the end thereof the following subsection (g):
"(g) Relationship Between Parties.
Each party represents to the other party on each date when it
enters into a Transaction that:--
(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.
(2) Evaluation and Understanding.
Page 13 of 18
(i) It has the capacity to evaluate (internally or through independent
professional advice) the Transaction and has made its own decision subject to
Section 6(n) of this Agreement 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. (a) It is an "eligible contract
participant" within the meaning of Section 1a(12) of the Commodity Exchange Act,
as amended (the "CEA"), (b) this Agreement is subject to individual negotiation
by each party, and (c) this Agreement will not be executed or traded on a
"trading facility" within the meaning of Section 1a(33) of the CEA.
(j) Non-Recourse. Notwithstanding any provision herein or in the ISDA Form
Master Agreement to the contrary, the obligations of Party B hereunder are
limited recourse obligations of Party B, payable solely from the Collateral and
the proceeds thereof, in accordance with the terms of the Indenture, including
any applicable priority of payment provisions thereof. In the event that the
Collateral and the proceeds thereof, should be insufficient to satisfy all
claims outstanding and following the realization of the Collateral and the
proceeds thereof, any claims against or obligations of Party B under the ISDA
Form Master Agreement or any other confirmation thereunder still outstanding
shall be extinguished and thereafter not revive.
(k) Transfer, Amendment and Assignment. No transfer, amendment, waiver,
supplement, assignment or other modification of this Transaction shall be
permitted by either party unless each of Moody's and S&P have been provided
prior notice of the same and each such rating agency confirms in writing
(including by facsimile transmission) that it will not downgrade, withdraw or
otherwise modify its then-current ratings of any Notes. Any purported assignment
in violation of this provision shall be void ab initio.
(l) Proceedings. Party A shall not institute against, or cause any other person
to institute against, or join any other person in instituting against Party B or
the Trust 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 Notes. This provision will
survive the termination of this Agreement.
(m) Compliance with Regulation AB.
(i) Party A agrees and acknowledges that Origen Residential Securities,
Inc. (the "Depositor") may be required under Regulation AB, as defined in the
Indenture, to disclose certain financial information regarding Party A or its
group of affiliated entities, if applicable, depending on
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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.
(ii) It shall be a swap disclosure event ("Swap Disclosure Event") if, on
any Business Day after the date hereof for so long as the Issuing Entity is
required to file periodic reports under the Exchange Act with respect to the
Notes, Party B or the Depositor requests from Party A the applicable financial
information described in Item 1115(b) of Regulation AB (such request to be based
on a reasonable determination by the Depositor, based on "significance
estimates" made in substantially the same manner as that used in the Sponsor's
internal risk management process in respect of similar instruments and furnished
by the Sponsor to the Depositor, or if the Sponsor does not furnish such
significance estimates to the Depositor, based on a determination of such
significance estimates by the Depositor in a commercially reasonable manner)
(the "Swap Financial Disclosure").
(iii) Upon the occurrence of a Swap Disclosure Event, Party A, at its own
expense, shall either (1)(a) either (i) provide to the Depositor the current
Swap Financial Disclosure in an EDGAR-compatible format (for example, such
information may be provided in Microsoft Word(R) or Microsoft Excel(R) format
but not in .pdf format) or (ii) provide written consent to the Depositor to
incorporation by reference of such current Swap Financial Disclosure that are
filed with the Securities and Exchange Commission in the Exchange Act Reports of
the Depositor, (b) if applicable, cause its outside accounting firm to provide
its consent to filing or incorporation by reference in the Exchange Act Reports
of the Depositor of such accounting firm's report relating to their audits of
such current Swap Financial Disclosure, and (c) provide to the Depositor any
updated Swap Financial Disclosure with respect to Party A or any entity that
consolidates Party A within five days of the release of any such updated Swap
Financial Disclosure; (2) subject to the Rating Agency Condition, secure another
entity to replace Party A as party to this Agreement on terms substantially
similar to this Agreement, which entity (or a guarantor therefor) meets or
exceeds the Approved Rating Thresholds and which entity complies with the
requirements of Item 1115 of Regulation AB and clause (1) above, or (3) subject
to the Rating Agency Condition, obtain a guaranty of Party A's obligations under
this Agreement from an affiliate of Party A that complies with the financial
information disclosure requirements of Item 1115 of Regulation AB, and cause
such affiliate to provide Swap Financial Disclosure and any future Swap
Financial Disclosure and other information pursuant to clause (1), such that
disclosure provided in respect of such affiliate will satisfy any disclosure
requirements applicable to the Swap Provider.
(iv) Party A agrees that, in the event that Party A provides Swap Financial
Disclosure to the Depositor in accordance with clause (iii)(1) above or causes
its affiliate to provide Swap Financial Disclosure to the Depositor in
accordance with clause (iii)(3) above, it 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.
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(v) If the Depositor reasonably requests, Party A shall provide such other
information as may be necessary for the Depositor to comply with the
requirements of Regulation AB.
(vi) Third Party Beneficiary. Depositor shall be an express third party
beneficiary of this Agreement as if a party hereto to the extent of Depositor's
rights explicitly specified herein.
(n) The ISDA Form Master Agreement is hereby amended as follows:
The word "third" shall be replaced by the word "first" in the third line of
Section 5(a)(i) of the ISDA Form Master Agreement.
(o) Additional Representation. The parties agree that Section 3
(Representations) of the ISDA Form Master Agreement will be amended by the
addition of the following representation to appear as the next representation
following the last representation and to be made by Party A only:
"FDIC Requirements. Party A represents that it is a bank subject to the
requirements of 12 U.S.C. Section 1823(e) and that its execution, delivery
and performance of this Agreement (including the Credit Support Annex and
each Confirmation) have been approved by its board of directors or its loan
committee, such approval is reflected in the minutes of said board of
directors or loan committee, and this Agreement (including the Credit
Support Annex and each Confirmation) will be maintained as one of its
official records continuously from the time of its execution (or in the
case of any Confirmation, continuously until such time as the relevant
Transaction matures and the obligations therefor are satisfied in full)."
(p) For purposes of Section 7 of the ISDA Form Master Agreement, Party A hereby
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 the
granting to the Indenture Trustee of a security interest in the Cap 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, whether or not evidenced by a
Confirmation, including, without limitation, any transfer or termination of any
such Transaction.
(q) Change of Account. Section 2(b) of the ISDA Form Master Agreement is hereby
amended by adding 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".
(r) It is expressly understood and agreed by the parties hereto that (a) this
Agreement is executed and delivered by Wilmington Trust Company, not
individually or personally, but solely as owner trustee of Origen Manufactured
Housing Contract Trust 2006-A, in the exercise of the powers and authority
conferred and vested in it, (b) each of the representations, undertakings and
agreements herein made on the part of the Trust is made and intended not as
personal representations, undertakings and agreements by Wilmington Trust
Company but is made and intended for the purpose for binding only the Trust, (c)
nothing herein contained shall be construed as creating any
Page 16 of 18
liability on Wilmington Trust Company, individually or personally, to perform
any covenant either expressed or implied contained herein, all such liability,
if any, being expressly waived by the parties hereto and by any Person claiming
by, through or under the parties hereto and (d) under no circumstances shall
Wilmington Trust Company be personally liable for the payment of any
indebtedness or expenses of the Trust or be liable for the breach or failure of
any obligation, representation, warranty or covenant made or undertaken by the
Trust under this Agreement or any other related documents.
(s) Expenses. In the event that an Event of Default occurs hereunder and the
Defaulting Party is Party A, the reasonable out-of-pocket expenses specified in
Section 11 of the Agreement shall also include the reasonable legal fees
incurred by the Insurer by reason of the enforcement and protection of Party B's
rights under the ISDA Form Master Agreement against Party A and shall not
include any expenses incurred with respect to action taken with respect to Party
B and shall not be duplicative of any expenses sought by Party B pursuant to
Section 11 of the Agreement.
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4. Account Details and
Settlement Information: PAYMENTS TO PARTY A:
CITIBANK N.A. NEW YORK
BIC: CITIUS33
ACCT NO: 00167679
ACCOUNT NAME: FINANCIAL FUTURES
PAYMENTS TO PARTY B:
JPMorgan Chase Bank, N.A.-New York, NY
ABA #021000021
Account #507199782
Account Name: Chicago Structured Finance
F/F/C: Origen 2006-A #10228050
This Agreement 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.
Page 18 of 18
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,
CITIBANK, N.A.
By: /s/ Donald Bendernagel
---------------------------------
Name: Donald Bendernagel
Title: Vice President
Origen Manufactured Housing Contract Trust 2006-A
By: Wilmington Trust Company, not in its individual capacity but solely as Owner
Trustee
By: /s/ Jennifer A. Luce
---------------------------------
Name: Jennifer A. Luce
Title: Financial Services Officer