Exhibit 99.4c
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Date: May 31, 2006
To: Xxxxxx Xxxxxxx Mortgage Loan From: Xxxxxx Xxxxxxx Capital
Trust 2006-7 Services Inc.
Attn: Xxxxx Fargo Bank, National Contact: New York Derivative Client
Association Services Group
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Client Manager, MSM 2006-7
Fax: (000) 000-0000 Fax: (000) 000-0000
Tel: (000) 000-0000 Tel: (000) 000-0000
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Re: Cap Ref. No. KQBE1, Class 4-A-2 (Second)
The purpose of this letter agreement is to confirm the terms and
conditions of the Swap Transaction entered into between Xxxxxx Xxxxxxx Capital
Services Inc. and Xxxxx Fargo Bank, National Association, solely in its
capacity as securities administrator (the "Securities Administrator") on
behalf of the Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-7 pursuant to the
Pooling and Servicing Agreement (the "PSA"), dated as of May 1, 2006, among
Xxxxxx Xxxxxxx Capital I Inc. (the "Depositor"), the Securities Administrator
as master servicer and securities administrator and LaSalle Bank National
Association as trustee (the "Trustee"), on the Trade Date specified below (the
"Transaction"). This letter agreement constitutes a "Confirmation" as referred
to in the ISDA Master Agreement below.
The definitions and provisions contained in the 2000 ISDA Definitions (as
published by the International Swaps and Derivatives Association, Inc.) are
incorporated into this Confirmation. In the event of any inconsistency between
those definitions and this Confirmation, this Confirmation will govern.
1. This Confirmation evidences a complete, binding agreement between you
and us as to the terms of the Transaction to which this Confirmation relates.
In addition, this Confirmation supplements, forms a part of, and is subject to
an agreement in the form of the ISDA Master Agreement (Multicurrency-Cross
Border), with such modifications as are specified herein, as if we had
executed an Agreement in such form on the Trade Date of the first such
Transaction between us (the "Agreement"). All provisions contained or
incorporated by reference in the Agreement shall govern this Confirmation
except as expressly modified below. In the event of any inconsistency between
the provisions of that Agreement and this Confirmation, this Confirmation will
prevail for the purpose of this Transaction.
2. The terms of the particular Transaction to which this Confirmation
relates are as follows:
Party A: Xxxxxx Xxxxxxx Capital Services Inc.
Party A Credit Support: Payments guaranteed by Xxxxxx Xxxxxxx
Party B: Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-7
Trade Date: May 22, 2006
Effective Date: June 25, 2006
Termination Date: August 25, 2009
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Notional Amount: With respect to any Calculation Period,
the product of (i) the amount set forth
for such period in Schedule A attached
hereto and (ii) 100.
Fixed Amounts:
Fixed Amount Payer: Party B
Fixed Amount Payer Payment Date: May 31, 2006
Fixed Amount: USD $69,000 (Party A hereby acknowledges
receipt of payment in full of this
amount)
Floating Amounts:
Floating Amount: To be determined in accordance with the
following formula:
Greater of (i) (Floating Rate Option
minus Strike Rate) * Notional Amount *
Floating Rate Day Count Fraction, and
(ii) zero.
Floating Rate Payer: Party A
Strike Rate: 5.60%.
Floating Rate Payer Early Payment -- For each Calculation
Payment Dates: Period, the first Business Day prior to
each Floating Rate Payer Period End Date.
Floating Rate Payer Period The 25th of each month in each year from
End Date(s): (and including) July 25, 2006 to (and
including) the Termination Date with no
adjustment to Period End Dates.
For the avoidance of doubt, the initial
Calculation Period will accrue from and
including the Effective Date to but
excluding July 25, 2006 and that the
final Calculation Period will accrue from
and including July 25, 2009 to but
excluding the Termination Date.
Floating Rate Option: USD-LIBOR-BBA, provided, however, that if
the Floating Rate determined from such
Floating Rate Option for any Calculation
Period is greater than 8.75% per annum
for such Calculation Period, then the
Floating Rate for such Calculation Period
shall be deemed to be equal to 8.75% per
annum.
Floating Rate Day Count Fraction: 30/360
Reset Dates: The first day of Each Calculation Period.
Compounding: Inapplicable
Business Days: New York
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Calculation Agent: Party A; provided, however, that if an
Event of Default occurs with respect to
Party A, then Party B shall be entitled
to appoint a financial institution which
would qualify as a Reference Market-maker
to act as Calculation Agent.
3. Account Details:
Payments to Party A: Citibank, New York
ABA No. 021 000 089
For: Xxxxxx Xxxxxxx Capital Services Inc.
Account No. 0000 0000
Operations Contact: Operations
Tel 000 000-0000
Fax 000 000-0000
Payments to Party B: Xxxxx Fargo Bank, National Association
ABA No. 000-000-000
Account Name: Corporate Trust Clearing
Account No. 0000000000 for further credit
to 50922401, MSM 2006-7
Ref: MSM 2006-7, Class 4-A-2 (Second)
4. Modifications to the Agreement:
The parties hereby agree to amend the Agreement referenced in paragraph 1
above as follows:
(a) "Cross Default" applies to Party A but not to Party B.
(b) Fully-Paid Transactions. Notwithstanding the terms of Sections 5 and 6 of
the Agreement if Party B has satisfied in full all of its payment
obligations under Section 2(a)(i) of the Agreement, then unless Party A
is required pursuant to appropriate proceedings to return to Party B or
otherwise returns to Party B upon demand of Party B any portion of such
payment, (a) the occurrence of an event described in Section 5(a) of the
Agreement with respect to Party B shall not constitute an Event of
Default or Potential Event of Default with respect to Party B as the
Defaulting Party and (b) Party A shall be entitled to designate an Early
Termination Event pursuant to Section 6 of the Agreement only as a result
of a Termination Event set forth in either Section 5(b)(i) or Section
5(b)(ii) of the Agreement with respect to Party A as the Affected Party
or Section 5(b)(iii) of the Agreement with respect to Party A as the
Burdened Party. For purposes of the Transaction to which this
Confirmation relates, Party B's only obligation under Section 2(a)(i) of
the Agreement is to pay the Fixed Amount on the Fixed Rate Payer Payment
Date.
(c) "Threshold Amount" means, with respect to a party, U.S. $10,000,000 (or
the equivalent in another currency, currency unit or combination
thereof).
(d) Payments on Early Termination. "Market Quotation" and "Second Method"
will apply for the purpose of Section 6(e) of this Agreement.
(e) "Termination Currency" means United States Dollars.
(f) Party A and Party B Payer Tax Representations. For the purpose of Section
3(e), 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)) to
be made by it to the other
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party under this Agreement. In making this representation, it may rely on
(i) the accuracy of any representation made by the other party pursuant
to Section 3(f); (ii) the satisfaction of the agreement of the other
party contained in Section 4(a)(i) or 4(a)(iii) and the accuracy and
effectiveness of any document provided by the other party pursuant to
Section 4(a)(i) or 4(a)(iii); and (iii) the satisfaction of the agreement
of the other party contained in Section 4(d), 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.
(g) Payee Tax Representations
(i) For the purpose of Section 3(f), Party A makes the following
representation:
It is a corporation duly organized and incorporated under the laws
of the State of Delaware and is not a foreign corporation for United
States tax purposes.
(ii) For the purpose of Section 3(f), Party B makes the following
representation:
It is a trust duly formed under the laws of the State of New York
and is not a foreign corporation for United States tax purposes.
(h) Governing Law; Jurisdiction. This Agreement, each Credit Support Document
and each Confirmation will be governed by and construed in accordance
with the laws of the State of New York, without reference to choice of
law doctrine. Section 13(b) is amended by: (1) deleting "non-" from the
second line of clause (i); and (2) deleting the final paragraph.
(i) Waiver of Jury Trial. Each party waives, to the fullest extent permitted
by applicable law, any right it may have to a trial by jury in respect of
any Proceedings relating to this Agreement or any Credit Support
Document.
(j) "Affiliate" has the meaning specified in Section 14, but excludes Xxxxxx
Xxxxxxx Derivative Products Inc.
(k) Additional Representations. Section 3 is hereby amended by adding at the
end thereof the following Subparagraphs:
(i) It is an "eligible contract participant" within the meaning of
Section 1a(12) of the Commodity Exchange Act (7 U.S.C. 1a), as
amended by the Commodity Futures Modernization Act of 2000.
(ii) It has entered into this Agreement (including each Transaction
evidenced hereby) in conjunction with its line of business
(including financial intermediation services) or the financing of
its business.
(iii) It is entering into this Agreement, any Credit Support Document to
which it is a party, each Transaction and any other documentation
relating to this Agreement or any Transaction as principal (and not
as agent or in any other capacity, fiduciary or otherwise).
(iv) ERISA Representation. It continuously represents that it is not (i)
an employee benefit plan (hereinafter an "ERISA Plan"), as defined
in Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), subject to Title I of ERISA or a plan
subject to Section 4975 of the Internal Revenue Code of 1986, as
amended, or subject to any other statute, regulation, procedure or
restriction that is materially similar to Section 406 of ERISA or
Section 4975 of the Code (together with ERISA Plans, "Plans"), (ii)
a person acting on behalf of a Plan or (iii) a person any of the
assets of whom constitute assets of a Plan, unless its entry into
and performance under this agreement satisfy the requirements for
exemptive relief under Prohibited Transactions Exemption 90-24, as
amended. It will provide notice to the other party in the event that
it is aware that it is in breach of any aspect of this
representation or is aware that with the
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passing of time, giving of notice or expiry of any applicable grace
period it will breach this representation.
(l) Relationship Between Parties. Each party will be deemed to represent to
the other party on the date on which it enters into a Transaction that
(absent a written agreement between the parties that expressly imposes
affirmative obligations to the contrary for that Transaction):
(i) Non-Reliance. In the case of Party A, it is acting for its own
account, and in the case of Party B, it is acting as Trustee. Party
A has made its own independent decisions to enter into that
Transaction and as to whether that Transaction is appropriate or
proper for it based upon its own judgment and upon advice from such
advisers as it has deemed necessary and, with respect to Party B, as
directed under the PSA. It is not relying on any communication
(written or oral) of the other party as investment advice or as a
recommendation to enter into that Transaction; it being understood
that information and explanations related to the terms and
conditions of a Transaction shall not be considered investment
advice or a recommendation to enter into that Transaction. No
communication (written or oral) received from the other party shall
be deemed to be an assurance or guarantee as to the expected results
of that Transaction.
(ii) Assessment and Understanding. It is capable of assessing the merits
of and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms,
conditions and risks of that Transaction. It is also capable of
assuming, and assumes, the risks of that Transaction.
(iii) Status of Parties. Party A and Party B are not acting as a
fiduciary for or an adviser to each other in respect of that
Transaction.
(iv) Fiduciary Capacity. It is expressly understood and agreed by the
parties hereto that (i) this Confirmation is executed and delivered
by Xxxxx Fargo Bank, National Association, not in its individual
capacity but solely as Securities Administrator on behalf of the
Trustee under the PSA in the exercise of the powers and authority
conferred to and vested in it thereunder, (ii) each of the
representations, undertakings and agreements herein made on behalf
of the trust created under the PSA is made and intended not as
personal representation, undertaking or agreement of the Securities
Administrator, but is made and intended for the purpose of binding
only such trust and (iii) under no circumstances shall Xxxxx Fargo
Bank, National Association in its individual capacity be personally
liable for the payment of any indebtedness or expenses or be
personally liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken under this
Confirmation.
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(m) Addresses for Notices. For the purpose of Section 12(a):
(i) Address for notices or communications to Party A:
Xxxxxx Xxxxxxx Capital Services Inc.
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Legal Officer
Facsimile No.: 000-000-0000
(ii) Address for notices or communications to Party B:
Address: Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Client Manager - MSM 2006-7
Facsimile No.: (000) 000-0000 Telephone No.: (000) 000-0000
(n) Set-Off. 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. The provisions for Set-Off set
fort in Section 6(e) of the Agreement shall not apply for purposes of
this Transaction.
(o) Notices. Section 12(a) is amended by adding in the third line thereof
after the phrase "messaging system" and before the ")" the words, ";
provided, however, any such notice or other communication may be given by
facsimile transmission if telex is unavailable, no telex number is
supplied to the party providing notice, or if answer back confirmation is
not received from the party to whom the telex is sent."
(p) Obligations. Section 2 is amended by adding the following to the end
thereof:
"(f) Party B shall deliver or cause to be delivered to Party A IRS Form
W-9 (or successor thereto) as soon as is practicable after the Effective
Date."
(q) Upon request by the Depositor, Party A may, at its option, but is not
required to, (A) (a) provide the financial information required by Item
1115(b)(1) or (b)(2) of Regulation AB (as specified by the Depositor to
Party A) with respect to Party A (or any guarantor of Party A if
providing the financial data of a guarantor is permitted under Regulation
AB) and any affiliated entities providing derivative instruments to Party
B (the "Company Financial Information"), in a form appropriate for use in
the Exchange Act Reports and in an XXXXX-compatible form; (b) if
applicable, cause its accountants to issue their consent to filing or
incorporation by reference of such financial statements in the Exchange
Act Reports of Party B and (c) within 5 Business Days of the release of
any updated financial information, provide current Company Financial
Information as required under Item 1115(b) of Regulation AB to the
Depositor in an XXXXX-compatible form and, if applicable, cause its
accountants to issue their consent to filing or incorporation by
reference of such financial statements in the Exchange Act Reports of
Party A or (B) assign this Agreement at its own cost to another entity
that has agreed to take the actions described in clause (A) of this
sentence with respect to itself (and which has the same or better rating
from the Rating Agencies as Party A as of the date of such assignment).
For the avoidance of doubt, Party A is not required to take any action
pursuant to this paragraph and the failure of Party A to take any such
action will not constitute an Event of Default under this Agreement.
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As used in this Agreement the following words shall have the following
meanings:
"Depositor" shall mean Xxxxxx Xxxxxxx Capital I Inc.
"XXXXX" shall mean the Commission's Electronic Data Gathering, Analysis
and Retrieval system.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
and the rules and regulations promulgated thereunder
"Exchange Act Reports" shall mean all Distribution Reports on Form 10-D,
Current Reports on Form 8-K and Annual Reports on Form 10-K that are to
be filed with respect to Party B pursuant to the Exchange Act.
"Prospectus Supplement" shall mean the prospectus supplement prepared in
connection with the public offering and sale of the Offered Certificates.
"Rating Agency" shall mean each of Standard & Poor's, a division of The
XxXxxx-Xxxx Companies, Inc. and Xxxxx'x Investors Service, Inc. If any
such organization or a successor is no longer in existence, "Rating
Agency" shall be such nationally recognized statistical rating
organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the Trustee.
References herein to a given rating category of a Rating Agency shall
mean such rating category without giving effect to any modifiers.
"Regulation AB" shall mean the Asset Backed Securities Regulation AB, 17
C.F.R. ss.ss.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.
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Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing this Confirmation and returning it to us.
Best Regards,
XXXXXX XXXXXXX CAPITAL SERVICES INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: XX
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
acting not in its individual
capacity but solely as Securities
Administrator on behalf of XXXXXX
XXXXXXX MORTGAGE LOAN TRUST 2006-7
By: /s/ Xxxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxxx Xxxxx
Title: VP
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Schedule A
Class 4-A-2 (Second)
Interest Rate Cap Schedule
Floating Rate Notional
Payer Amount
Period End Date ($)
-------------------------------- -----------------
July 25, 2006.................. 302,939.69
August 25, 2006................ 295,648.68
September 25, 2006............. 287,646.45
October 25, 2006............... 278,954.65
November 25, 2006.............. 269,596.98
December 25, 2006.............. 259,599.14
January 25, 2007............... 248,988.79
February 25, 2007.............. 237,795.40
March 25, 2007................. 226,802.98
April 25, 2007................. 216,068.96
May 25, 2007................... 205,588.51
June 25, 2007.................. 195,356.91
July 25, 2007.................. 185,369.51
August 25, 2007................ 175,621.75
September 25, 2007............. 166,109.14
October 25, 2007............... 156,827.30
November 25, 2007.............. 147,771.92
December 25, 2007.............. 138,938.77
January 25, 2008............... 130,323.69
February 25, 2008.............. 121,922.61
March 25, 2008................. 113,731.53
April 25, 2008................. 105,746.53
May 25, 2008................... 97,963.76
June 25, 2008.................. 90,379.43
July 25, 2008.................. 82,989.84
August 25, 2008................ 75,791.35
September 25, 2008............. 68,780.39
October 25, 2008............... 61,953.45
November 25, 2008.............. 55,307.09
December 25, 2008.............. 48,837.94
January 25, 2009............... 42,542.67
February 25, 2009.............. 36,418.05
March 25, 2009................. 30,460.88
April 25, 2009................. 24,668.02
May 25, 2009................... 19,036.41
June 25, 2009.................. 13,563.03
July 25, 2009.................. 8,244.92
August 25, 2009................ 3,079.17
September 25, 2009
and thereafter............... 0.00
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