Exhibit 99.11
Interest Rate Swap Agreement
(Multicurrency--Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of
November 29, 2007
between
XXXXXX XXXXXXX CAPITAL XXXXXX XXXXXXX CAPITAL I TRUST
SERVICES INC. 2007-IQ16
....................................and .........................................
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.
(b) Change of Account. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a reasonable
objection to such change.
(c) Netting. If on any date amounts would otherwise be payable:--
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to make
payment of any such amount will be automatically satisfied and discharged and,
if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the other
party, replaced by an obligation upon the party by whom the larger aggregate
amount would have been payable to pay to the other party the excess of the
larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be made
in the Schedule or a Confirmation by specifying that subparagraph (ii) above
will not apply to the Transactions identified as being subject to the election,
together with the starting date (in which case subparagraph (ii) above will not,
or will cease to, apply to such Transactions from such date). This election may
be made separately for different groups of Transactions and will apply
separately to each pairing of Offices through which the parties make and receive
payments or deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as modified by
the practice of any relevant governmental revenue authority, then in
effect. If a party is so required to deduct or withhold, then that party
("X") will:--
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to be
deducted or withheld (including the full amount required to be
deducted or withheld from any additional amount paid by X to Y under
this Section 2(d)) promptly upon the earlier of determining that
such deduction or withholding is required or receiving notice that
such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified copy),
or other documentation reasonably acceptable to Y, evidencing such
payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to
the payment to which Y is otherwise entitled under this Agreement,
such additional amount as is necessary to ensure that the net amount
actually received by Y (free and clear of Indemnifiable Taxes,
whether assessed against X or Y) will equal the full amount Y would
have received had no such deduction or withholding been required.
However, X will not be required to pay any additional amount to Y to
the extent that it would not be required to be paid but for:--
(A)the failure by Y to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y pursuant to
Section 3(f) to be accurate and true unless such failure would
not have occurred but for (I) any action taken by a taxing
authority, or brought in a court of competent jurisdiction, on
or after the date on which a Transaction is entered into
(regardless of whether such action is taken or brought with
respect to a party to this Agreement) or (II) a Change in Tax
Law.
(ii) Liability. If:--
(1) X is required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, to make any
deduction or withholding in respect of which X would not be required
to pay an additional amount to Y under Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly against
X,
then, except to the extent Y has satisfied or then satisfies the liability
resulting from such Tax, Y will promptly pay to X the amount of such
liability (including any related liability for interest, but including any
related liability for penalties only if Y has failed to comply with or
perform any agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d)).
(e) Default Interest; Other Amounts. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant Transaction,
a party that defaults in the performance of any payment obligation will, to the
extent permitted by law and subject to Section 6(c), be required to pay interest
(before as well as after judgment) on the overdue amount to the other party on
demand in the same currency as such overdue amount, for the period from (and
including) the original due date for payment to (but excluding) the date of
actual payment, at the Default Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed. If, prior to
the occurrence or effective designation of an Early Termination Date in respect
of the relevant Transaction, a party defaults in the performance of any
obligation required to be settled by delivery, it will compensate the other
party on demand if and to the extent provided for in the relevant Confirmation
or elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Transaction is entered into
and, in the case of the representations in Section 3(f), at all times until the
termination of this Agreement) that:--
(a) Basic Representations.
(i) Status. It is duly organised and validly existing under the laws of
the jurisdiction of its organisation or incorporation and, if relevant
under such laws, in good standing;
(ii)Powers. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to
deliver this Agreement and any other documentation relating to this
Agreement that it is required by this Agreement to deliver and to perform
its obligations under this Agreement and any obligations it has under any
Credit Support Document to which it is a party and has taken all necessary
action to authorise such execution, delivery and performance;
(iii) No Violation or Conflict. Such execution, delivery and performance
do not violate or conflict with any law applicable to it, any provision of
its constitutional documents, any order or judgment of any court or other
agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets;
(iv)Consents. All governmental and other consents that are required to
have been obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party have been obtained and are in full
force and effect and all conditions of any such consents have been
complied with; and
(v) Obligations Binding. Its obligations under this Agreement and any
Credit Support Document to which it is a party constitute its legal, valid
and binding obligations, enforceable in accordance with their respective
terms (subject to applicable bankruptcy, reorganisation, insolvency,
moratorium or similar laws affecting creditors' rights generally and
subject, as to enforceability, to equitable principles of general
application (regardless of whether enforcement is sought in a proceeding
in equity or at law)).
(b) Absence of Certain Events. No Event of Default or Potential Event of Default
or, to its knowledge, Termination Event with respect to it has occurred and is
continuing and no such event or circumstance would occur as a result of its
entering into or performing its obligations under this Agreement or any Credit
Support Document to which it is a party.
(c) Absence of Litigation. There is not pending or, to its knowledge, threatened
against it or any of its Affiliates any action, suit or proceeding at law or in
equity or before any court, tribunal, governmental body, agency or official or
any arbitrator that is likely to affect the legality, validity or enforceability
against it of this Agreement or any Credit Support Document to which it is a
party or its ability to perform its obligations under this Agreement or such
Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material respect.
(e) Payer Tax Representation. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and true.
(f) Payee Tax Representations. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(f) is accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party:--
(a) Furnish Specified Information. It will deliver to the other party or, in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs:--
(i) any forms, documents or certificates relating to taxation specified in
the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation;
and
(iii)upon reasonable demand by such other party, any form or document that
may be required or reasonably requested in writing in order to allow such
other party or its Credit Support Provider to make a payment under this
Agreement or any applicable Credit Support Document without any deduction
or withholding for or on account of any Tax or with such deduction or
withholding at a reduced rate (so long as the completion, execution or
submission of such form or document would not materially prejudice the
legal or commercial position of the party in receipt of such demand), with
any such form or document to be accurate and completed in a manner
reasonably satisfactory to such other party and to be executed and to be
delivered with any reasonably required certification,
in each case by the date specified in the Schedule or such Confirmation or, if
none is specified, as soon as reasonably practicable.
(b) Maintain Authorisations. It will use all reasonable efforts to maintain in
full force and effect all consents of any governmental or other authority that
are required to be obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party and will use all reasonable efforts to
obtain any that may become necessary in the future.
(c) Comply with Laws. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to comply
would materially impair its ability to perform its obligations under this
Agreement or any Credit Support Document to which it is a party.
(d) Tax Agreement. It will give notice of any failure of a representation made
by it under Section 3(f) to be accurate and true promptly upon learning of such
failure.
(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance of this
Agreement by a jurisdiction in which it is incorporated, organised, managed and
controlled, or considered to have its seat, or in which a branch or office
through which it is acting for the purpose of this Agreement is located ("Stamp
Tax Jurisdiction") and will indemnify the other party against any Stamp Tax
levied or imposed upon the other party or in respect of the other party's
execution or performance of this Agreement by any such Stamp Tax Jurisdiction
which is not also a Stamp Tax Jurisdiction with respect to the other party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a party or, if
applicable, any Credit Support Provider of such party or any Specified Entity of
such party of any of the following events constitutes an event of default (an
"Event of Default") with respect to such party:--
(i) Failure to Pay or Deliver. Failure by the party to make, when due, any
payment under this Agreement or delivery under Section 2(a)(i) or 2(e)
required to be made by it if such failure is not remedied on or before the
third Local Business Day after notice of such failure is given to the
party;
(ii) Breach of Agreement. Failure by the party to comply with or perform
any agreement or obligation (other than an obligation to make any payment
under this Agreement or delivery under Section 2(a)(i) or 2(e) or to give
notice of a Termination Event or any agreement or obligation under Section
4(a)(i), 4(a)(iii) or 4(d)) to be complied with or performed by the party
in accordance with this Agreement if such failure is not remedied on or
before the thirtieth day after notice of such failure is given to the
party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of such
party to comply with or perform any agreement or obligation to be
complied with or performed by it in accordance with any Credit
Support Document if such failure is continuing after any applicable
grace period has elapsed;
(2) the expiration or termination of such Credit Support Document or
the failing or ceasing of such Credit Support Document to be in full
force and effect for the purpose of this Agreement (in either case
other than in accordance with its terms) prior to the satisfaction
of all obligations of such party under each Transaction to which
such Credit Support Document relates without the written consent of
the other party; or
(3) the party or such Credit Support Provider disaffirms, disclaims,
repudiates or rejects, in whole or in part, or challenges the
validity of, such Credit Support Document;
(iv) Misrepresentation. A representation (other than a representation
under Section 3(e) or (f)) made or repeated or deemed to have been made or
repeated by the party or any Credit Support Provider of such party in this
Agreement or any Credit Support Document proves to have been incorrect or
misleading in any material respect when made or repeated or deemed to have
been made or repeated;
(v) Default under Specified Transaction. The party, any Credit Support
Provider of such party or any applicable Specified Entity of such party
(1) defaults under a Specified Transaction and, after giving effect to any
applicable notice requirement or grace period, there occurs a liquidation
of, an acceleration of obligations under, or an early termination of, that
Specified Transaction, (2) defaults, after giving effect to any applicable
notice requirement or grace period, in making any payment or delivery due
on the last payment, delivery or exchange date of, or any payment on early
termination of, a Specified Transaction (or such default continues for at
least three Local Business Days if there is no applicable notice
requirement or grace period) or (3) disaffirms, disclaims, repudiates or
rejects, in whole or in part, a Specified Transaction (or such action is
taken by any person or entity appointed or empowered to operate it or act
on its behalf);
(vi) Cross Default. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of (1) a default, event
of default or other similar condition or event (however described) in
respect of such party, any Credit Support Provider of such party or any
applicable Specified Entity of such party under one or more agreements or
instruments relating to Specified Indebtedness of any of them
(individually or collectively) in an aggregate amount of not less than the
applicable Threshold Amount (as specified in the Schedule) which has
resulted in such Specified Indebtedness becoming, or becoming capable at
such time of being declared, due and payable under such agreements or
instruments, before it would otherwise have been due and payable or (2) a
default by such party, such Credit Support Provider or such Specified
Entity (individually or collectively) in making one or more payments on
the due date thereof in an aggregate amount of not less than the
applicable Threshold Amount under such agreements or instruments (after
giving effect to any applicable notice requirement or grace period);
(vii) Bankruptcy. The party, any Credit Support Provider of such party or
any applicable Specified Entity of such party:--
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2) becomes insolvent or is unable to pay
its debts or fails or admits in writing its inability generally to
pay its debts as they become due; (3) makes a general assignment,
arrangement or composition with or for the benefit of its creditors;
(4) institutes or has instituted against it a proceeding seeking a
judgment of insolvency or bankruptcy or any other relief under any
bankruptcy or insolvency law or other similar law affecting
creditors' rights, or a petition is presented for its winding-up or
liquidation, and, in the case of any such proceeding or petition
instituted or presented against it, such proceeding or petition (A)
results in a judgment of insolvency or bankruptcy or the entry of an
order for relief or the making of an order for its winding-up or
liquidation or (B) is not dismissed, discharged, stayed or
restrained in each case within 30 days of the institution or
presentation thereof; (5) has a resolution passed for its
winding-up, official management or liquidation (other than pursuant
to a consolidation, amalgamation or merger); (6) seeks or becomes
subject to the appointment of an administrator, provisional
liquidator, conservator, receiver, trustee, custodian or other
similar official for it or for all or substantially all its assets;
(7) has a secured party take possession of all or substantially all
its assets or has a distress, execution, attachment, sequestration
or other legal process levied, enforced or sued on or against all or
substantially all its assets and such secured party maintains
possession, or any such process is not dismissed, discharged, stayed
or restrained, in each case within 30 days thereafter; (8) causes or
is subject to any event with respect to it which, under the
applicable laws of any jurisdiction, has an analogous effect to any
of the events specified in clauses (1) to (7) (inclusive); or (9)
takes any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit Support Provider
of such party consolidates or amalgamates with, or merges with or into, or
transfers all or substantially all its assets to, another entity and, at
the time of such consolidation, amalgamation, merger or transfer:--
(1) the resulting, surviving or transferee entity fails to assume
all the obligations of such party or such Credit Support Provider
under this Agreement or any Credit Support Document to which it or
its predecessor was a party by operation of law or pursuant to an
agreement reasonably satisfactory to the other party to this
Agreement; or
(2) the benefits of any Credit Support Document fail to extend
(without the consent of the other party) to the performance by such
resulting, surviving or transferee entity of its obligations under
this Agreement.
(b) Termination Events. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified Entity
of such party of any event specified below constitutes an Illegality if the
event is specified in (i) below, a Tax Event if the event is specified in (ii)
below or a Tax Event Upon Merger if the event is specified in (iii) below, and,
if specified to be applicable, a Credit Event
Upon Merger if the event is specified pursuant to (iv) below or an Additional
Termination Event if the event is specified pursuant to (v) below:--
(i) Illegality. Due to the adoption of, or any change in, any applicable
law after the date on which a Transaction is entered into, or due to the
promulgation of, or any change in, the interpretation by any court,
tribunal or regulatory authority with competent jurisdiction of any
applicable law after such date, it becomes unlawful (other than as a
result of a breach by the party of Section 4(b)) for such party (which
will be the Affected Party):--
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in respect
of such Transaction or to comply with any other material provision
of this Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party to
perform, any contingent or other obligation which the party (or such
Credit Support Provider) has under any Credit Support Document
relating to such Transaction;
(ii) Tax Event. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the date on
which a Transaction is entered into (regardless of whether such action is
taken or brought with respect to a party to this Agreement) or (y) a
Change in Tax Law, the party (which will be the Affected Party) will, or
there is a substantial likelihood that it will, on the next succeeding
Scheduled Payment Date (1) be required to pay to the other party an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount is required to be
deducted or withheld for or on account of a Tax (except in respect of
interest under Section 2(e), 6(d)(ii) or 6(e)) and no additional amount is
required to be paid in respect of such Tax under Section 2(d)(i)(4) (other
than by reason of Section 2(d)(i)(4)(A) or (B));
(iii) Tax Event Upon Merger. The party (the "Burdened Party") on the next
succeeding Scheduled Payment Date will either (1) be required to pay an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount has been deducted or
withheld for or on account of any Indemnifiable Tax in respect of which
the other party is not required to pay an additional amount (other than by
reason of Section 2(d)(i)(4)(A) or (B)), in either case as a result of a
party consolidating or amalgamating with, or merging with or into, or
transferring all or substantially all its assets to, another entity (which
will be the Affected Party) where such action does not constitute an event
described in Section 5(a)(viii);
(iv) Credit Event Upon Merger. If "Credit Event Upon Merger" is specified
in the Schedule as applying to the party, such party ("X"), any Credit
Support Provider of X or any applicable Specified Entity of X consolidates
or amalgamates with, or merges with or into, or transfers all or
substantially all its assets to, another entity and such action does not
constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or transferee entity is
materially weaker than that of X, such Credit Support Provider or such
Specified Entity, as the case may be, immediately prior to such action
(and, in such event, X or its successor or transferee, as appropriate,
will be the Affected Party); or
(v) Additional Termination Event. If any "Additional Termination Event" is
specified in the Schedule or any Confirmation as applying, the occurrence
of such event (and, in such event, the Affected Party or Affected Parties
shall be as specified for such Additional Termination Event in the
Schedule or such Confirmation).
(c) Event of Default and Illegality. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes an
Illegality, it will be treated as an Illegality and will not constitute an Event
of Default.
6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an Event of
Default with respect to a party (the "Defaulting Party") has occurred and is
then continuing, the other party (the "Non-defaulting Party") may, by not more
than 20 days notice to the Defaulting Party specifying the relevant Event of
Default, designate a day not earlier than the day such notice is effective as an
Early Termination Date in respect of all outstanding Transactions. If, however,
"Automatic Early Termination" is specified in the Schedule as applying to a
party, then an Early Termination Date in respect of all outstanding Transactions
will occur immediately upon the occurrence with respect to such party of an
Event of Default specified in Section 5(a)(vii)(l), (3), (5), (6) or, to the
extent analogous thereto, (8), and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition upon the occurrence with respect to such party of an Event of Default
specified in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party, specifying the
nature of that Termination Event and each Affected Transaction and will
also give such other information about that Termination Event as the other
party may reasonably require.
(ii) Transfer to Avoid Termination Event. If either an Illegality under
Section 5(b)(i)(l) or a Tax Event occurs and there is only one Affected
Party, or if a Tax Event Upon Merger occurs and the Burdened Party is the
Affected Party, the Affected Party will, as a condition to its right to
designate an Early Termination Date under Section 6(b)(iv), use all
reasonable efforts (which will not require such party to incur a loss,
excluding immaterial, incidental expenses) to transfer within 20 days
after it gives notice under Section 6(b)(i) all its rights and obligations
under this Agreement in respect of the Affected Transactions to another of
its Offices or Affiliates so that such Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days after
the notice is given under Section 6(b)(i). Any such transfer by a party
under this Section 6(b)(ii) will be subject to and conditional upon the
prior written consent of the other party, which consent will not be
withheld if such other party's policies in effect at such time would
permit it to enter into transactions with the transferee on the terms
proposed.
(iii) Two Affected Parties. If an Illegality under Section 5(b)(i)( 1) or
a Tax Event occurs and there are two Affected Parties, each party will use
all reasonable efforts to reach agreement within 30 days after notice
thereof is given under Section 6(b)(i) on action to avoid that Termination
Event.
(iv) Right to Terminate. If:--
(1) a transfer under Section 6(b)(ii) or an agreement under Section
6(b)(iii), as the case may be, has not been effected with respect to
all Affected Transactions within 30 days after an Affected Party
gives notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax Event
Upon Merger occurs and the Burdened Party is not the Affected Party,
either party in the case of an Illegality, the Burdened Party in the case
of a Tax Event Upon Merger, any Affected Party in the case of a Tax Event
or an Additional Termination Event if there is more than one Affected
Party, or the party which is not the Affected Party in the case of a
Credit Event Upon Merger or an Additional Termination Event if there is
only one Affected Party may, by not more than 20 days notice to the other
party and provided that the relevant Termination Event is then continuing,
designate a day not earlier than the day such notice is effective as an
Early Termination Date in respect of all Affected Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under Section
6(a) or (b), the Early Termination Date will occur on the date so
designated, whether or not the relevant Event of Default or Termination
Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early Termination
Date, no further payments or deliveries under Section 2(a)(i) or 2(e) in
respect of the Terminated Transactions will be required to be made, but
without prejudice to the other provisions of this Agreement. The amount,
if any, payable in respect of an Early Termination Date shall be
determined pursuant to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and will
provide to the other party a statement (1) showing, in reasonable detail,
such calculations (including all relevant quotations and specifying any
amount payable under Section 6(e)) and (2) giving details of the relevant
account to which any amount payable to it is to be paid. In the absence of
written confirmation from the source of a quotation obtained in
determining a Market Quotation, the records of the party obtaining such
quotation will be conclusive evidence of the existence and accuracy of
such quotation.
(ii) Payment Date. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day that
notice of the amount payable is effective (in the case of an Early
Termination Date which is designated or occurs as a result of an Event of
Default) and on the day which is two Local Business Days after the day on
which notice of the amount payable is effective (in the case of an Early
Termination Date which is designated as a result of a Termination Event).
Such amount will be paid together with (to the extent permitted under
applicable law) interest thereon (before as well as after judgment) in the
Termination Currency, from (and including) the relevant Early Termination
Date to (but excluding) the date such amount is paid, at the Applicable
Rate. Such interest will be calculated on the basis of daily compounding
and the actual number of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the Schedule
of a payment measure, either "Market Quotation" or "Loss", and a payment method,
either the "First Method" or the "Second Method". If the parties fail to
designate a payment measure or payment method in the Schedule, it will be deemed
that "Market Quotation" or the "Second Method", as the case may be, shall apply.
The amount, if any, payable in respect of an Early Termination Date and
determined pursuant to this Section will be subject to any Set-off.
(i) Events of Default. If the Early Termination Date results from an Event
of Default:--
(1) First Method and Market Quotation. If the First Method and
Market Quotation apply, the Defaulting Party will pay to the
Non-defaulting Party the excess, if a positive number, of (A) the
sum of the Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and the Termination
Currency Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party over (B) the Termination Currency Equivalent of
the Unpaid Amounts owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply, the
Defaulting Party will pay to the Non-defaulting Party, if a positive
number, the Non-defaulting Party's Loss in respect of this
Agreement.
(3) Second Method and Market Quotation. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A) the
sum of the Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and the Termination
Currency Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party less (B) the Termination Currency Equivalent of
the Unpaid Amounts owing to the Defaulting Party. If that amount is
a positive number, the Defaulting Party will pay it to the
Non-defaulting Party; if it is a negative number, the Non-defaulting
Party will pay the absolute value of that amount to the Defaulting
Party.
(4) Second Method and Loss. If the Second Method and Loss apply, an
amount will be payable equal to the Non-defaulting Party's Loss in
respect of this Agreement. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting Party; if it is a
negative number, the Non-defaulting Party will pay the absolute
value of that amount to the Defaulting Party.
(ii) Termination Events. If the Early Termination Date results from a
Termination Event:--
(1) One Affected Party. If there is one Affected Party, the amount
payable will be determined in accordance with Section 6(e)(i)(3), if
Market Quotation applies, or Section 6(e)(i)(4), if Loss applies,
except that, in either case, references to the Defaulting Party and
to the Non-defaulting Party will be deemed to be references to the
Affected Party and the party which is not the Affected Party,
respectively, and, if Loss applies and fewer than all the
Transactions are being terminated, Loss shall be calculated in
respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties:--
(A) if Market Quotation applies, each party will determine a
Settlement Amount in respect of the Terminated Transactions,
and an amount will be payable equal to (I) the sum of (a)
one-half of the difference between the Settlement Amount of
the party with the higher Settlement Amount ("X") and the
Settlement Amount of the party with the lower Settlement
Amount ("Y") and (b) the Termination Currency Equivalent of
the Unpaid Amounts owing to X less (II) the Termination
Currency Equivalent of the Unpaid Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss in
respect of this Agreement (or, if fewer than all the
Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable equal
to one-half of the difference between the Loss of the party
with the higher Loss ("X") and the Loss of the party with the
lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X; if it is a
negative number, X will pay the absolute value of that amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination" applies in
respect of a party, the amount determined under this Section 6(e) will be
subject to such adjustments as are appropriate and permitted by law to
reflect any payments or deliveries made by one party to the other under
this Agreement (and retained by such other party) during the period from
the relevant Early Termination Date to the date for payment determined
under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation applies an
amount recoverable under this Section 6(e) is a reasonable pre-estimate of
loss and not a penalty. Such amount is payable for the loss of bargain and
the loss of protection against future risks and except as otherwise
provided in this Agreement neither party will be entitled to recover any
additional damages as a consequence of such losses.
7. Transfer
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of the
other party, except that: --
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to any
other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in any
amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be void.
8. Contractual Currency
(a) Payment in the Contractual Currency. Each payment under this Agreement will
be made in the relevant currency specified in this Agreement for that payment
(the "Contractual Currency"). To the extent permitted by applicable law, any
obligation to make payments under this Agreement in the Contractual Currency
will not be discharged or satisfied by any tender in any currency other than the
Contractual Currency, except to the extent such tender results in the actual
receipt by the party to which payment is owed, acting in a reasonable manner and
in good faith in converting the currency so tendered into the Contractual
Currency, of the full amount in the Contractual Currency of all amounts payable
in respect of this Agreement. If for any reason the amount in the Contractual
Currency so received falls short of the amount in the Contractual Currency
payable in respect of this Agreement, the party required to make the payment
will, to the extent permitted by applicable law, immediately pay such additional
amount in the Contractual Currency as may be necessary to compensate for the
shortfall. If for any reason the amount in the Contractual Currency so received
exceeds the amount in the Contractual Currency payable in respect of this
Agreement, the party receiving the payment will refund promptly the amount of
such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the Contractual
Currency received by such party as a consequence of sums paid in such other
currency and will refund promptly to the other party any excess of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency if such shortfall or such excess arises or results from any
variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgment or order for the purposes of such
judgment or order and the rate of exchange at which such party is able, acting
in a reasonable manner and in good faith in converting the currency received
into the Contractual Currency, to purchase the Contractual Currency with the
amount of the currency of the judgment or order actually received by such party.
The term "rate of exchange" includes, without limitation, any premiums and costs
of exchange payable in connection with the purchase of or conversion into the
Contractual Currency.
(c) Separate Indemnities. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the party
to which any payment is owed and will not be affected by judgment being obtained
or claim or proof being made for any other sums payable in respect of this
Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
9. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced by
a facsimile transmission) and executed by each of the parties or confirmed by an
exchange of telexes or electronic messages on an electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in respect
of it) may be executed and delivered in counterparts (including by
facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of each
Transaction from the moment they agree to those terms (whether orally or
otherwise). A Confirmation shall be entered into as soon as practicable
and may be executed and delivered in counterparts (including by facsimile
transmission) or be created by an exchange of telexes or by an exchange of
electronic messages on an electronic messaging system, which in each case
will be sufficient for all purposes to evidence a binding supplement to
this Agreement. The parties will specify therein or through another
effective means that any such counterpart, telex or electronic message
constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise, of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
10. Offices; Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying, each party that
enters into a Transaction through an Office other than its head or home office
represents to the other party that, notwithstanding the place of booking office
or jurisdiction of incorporation or organisation of such party, the obligations
of such party are the same as if it had entered into the Transaction through its
head or home office. This representation will be deemed to be repeated by such
party on each date on which a Transaction is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office through
which it makes and receives payments or deliveries with respect to a Transaction
will be specified in the relevant Confirmation.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees and
Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or any Credit Support Document to
which the Defaulting Party is a party or by reason of the early termination of
any Transaction, including, but not limited to, costs of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:--
(i) if in writing and delivered in person or by courier, on the date it is
delivered;
(ii) if sent by telex, on the date the recipient's answerback is received;
(iii) if sent by facsimile transmission, on the date that transmission is
received by a responsible employee of the recipient in legible form (it
being agreed that the burden of proving receipt will be on the sender and
will not be met by a transmission report generated by the sender's
facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or the
equivalent (return receipt requested), on the date that mail is delivered
or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic
message is received,
unless the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating to
this Agreement ("Proceedings"), each party irrevocably:--
(i) submits to the jurisdiction of the English courts, if this Agreement
is expressed to be governed by English law, or to the non-exclusive
jurisdiction of the courts of the State of New York and the United States
District Court located in the Borough of Manhattan in New York City, if
this Agreement is expressed to be governed by the laws of the State of New
York; and
(ii) waives any objection which it may have at any time to the laying of
venue of any Proceedings brought in any such court, waives any claim that
such Proceedings have been brought in an inconvenient forum and further
waives the right to object, with respect to such Proceedings, that such
court does not have any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be governed
by English law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Xxx 0000 or any modification, extension or
reenactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) Service of Process. Each party irrevocably appoints the Process Agent (if
any) specified opposite its name in the Schedule to receive, for it and on its
behalf, service of process in any Proceedings. If for any reason any party's
Process Agent is unable to act as such, such party will promptly notify the
other party and within 30 days appoint a substitute process agent acceptable to
the other party. The parties irrevocably consent to service of process given in
the manner provided for notices in Section 12. Nothing in this Agreement will
affect the right of either party to serve process in any other manner permitted
by law.
(d) Waiver of Immunities. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and assets
(irrespective of their use or intended use), all immunity on the grounds of
sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in the courts
of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any Proceedings.
14. Definitions
As used in this Agreement:--
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control" of
any entity or person means ownership of a majority of the voting power of the
entity or person.
"Applicable Rate" means:--
(a) in respect of obligations payable or deliverable (or which would have been
but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either
party from and after the date (determined in accordance with Section 6(d)(ii))
on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which would
have been but for Section 2(a)(iii)) by a Non-defaulting Party, the Non-default
Rate; and
(d) in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or ratification
of, or any change in or amendment to, any law (or in the application or official
interpretation of any law) that occurs on or after the date on which the
relevant Transaction is entered into.
"consent" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is specified as
such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with Section
6(a) or 6(b)(iv).
"Event of Default" has the meaning specified in Section 5(a) and, if applicable,
in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"Indemnifiable Tax" means any Tax other than a Tax that would not be imposed in
respect of a payment under this Agreement but for a present or former connection
between the jurisdiction of the government or taxation authority imposing such
Tax and the recipient of such payment or a person related to such recipient
(including, without limitation, a connection arising from such recipient or
related person being or having been a citizen or resident of such jurisdiction,
or being or having been organised, present or engaged in a trade or business in
such jurisdiction, or having or having had a permanent establishment or fixed
place of business in such jurisdiction, but excluding a connection arising
solely from such recipient or related person having executed, delivered,
performed its obligations or received a payment under, or enforced, this
Agreement or a Credit Support Document).
"law" includes any treaty, law, rule or regulation (as modified, in the case of
tax matters, by the practice of any relevant governmental revenue authority) and
"lawful" and "unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and foreign
currency deposits) (a) in relation to any obligation under Section 2(a)(i), in
the place(s) specified in the relevant Confirmation or, if not so specified, as
otherwise agreed by the parties in writing or determined pursuant to provisions
contained, or incorporated by reference, in this Agreement, (b) in relation to
any other payment, in the place where the relevant account is located and, if
different, in the principal financial centre, if any, of the currency of such
payment, (c) in relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the city specified in the address for
notice provided by the recipient and, in the case of a notice contemplated by
Section 2(b), in the place where the relevant new account is to be located and
(d) in relation to Section 5(a)(v)(2), in the relevant locations for performance
with respect to such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be its
total losses and costs (or gain, in which case expressed as a negative number)
in connection with this Agreement or that Terminated Transaction or group of
Terminated Transactions, as the case may be, including any loss of bargain, cost
of funding or, at the election of such party but without duplication, loss or
cost incurred as a result of its terminating, liquidating, obtaining or
reestablishing any hedge or related trading position (or any gain resulting from
any of them). Loss includes losses and costs (or gains) in respect of any
payment or delivery required to have been made (assuming satisfaction of each
applicable condition precedent) on or before the relevant Early Termination Date
and not made, except, so as to avoid duplication, if Section 6(e)(i)(1) or (3)
or 6(e)(ii)(2)(A) applies. Loss does not include a party's legal fees and
out-of-pocket expenses referred to under Section 11. A party will determine its
Loss as of the relevant Early Termination Date, or, if that is not reasonably
practicable, as of the earliest date thereafter as is reasonably practicable. A
party may (but need not) determine its Loss by reference to quotations of
relevant rates or prices from one or more leading dealers in the relevant
markets.
"Market Quotation" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or by
such party (expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support Document
with respect to the obligations of such party) and the quoting Reference
Market-maker to enter into a transaction (the "Replacement Transaction") that
would have the effect of preserving for such party the economic equivalent of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated Transaction
or group of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have been required after that date. For this
purpose, Unpaid Amounts in respect of the Terminated Transaction or group of
Terminated Transactions are to be excluded but, without limitation, any payment
or delivery that would, but for the relevant Early Termination Date, have been
required (assuming satisfaction of each applicable condition precedent) after
that Early Termination Date is to be included. The Replacement Transaction would
be subject to such documentation as such party and the Reference Market-maker
may, in good faith, agree. The party making the determination (or its agent)
will request each Reference Market maker to provide its quotation to the extent
reasonably practicable as of the same day and time (without regard to different
time zones) on or as soon as reasonably practicable after the relevant Early
Termination Date. The day and time as of which those quotations are to be
obtained will be selected in good faith by the party obliged to make a
determination under Section 6(e), and, if each party is so obliged, after
consultation with the other. If more than three quotations are provided, the
Market Quotation will be the arithmetic mean of the quotations, without regard
to the quotations having the highest and lowest values. If exactly three such
quotations are provided, the Market Quotation will be the quotation remaining
after disregarding the highest and lowest quotations. For this purpose, if more
than one quotation has the same highest value or lowest value, then one of such
quotations shall be disregarded. If fewer than three quotations are provided, it
will be deemed that the Market Quotation in respect of such Terminated
Transaction or group of Terminated Transactions cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it) if
it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's head or
home office.
"Potential Event of Default" means any event which, with the giving of notice or
the lapse of time or both, would constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria that
such party applies generally at the time in deciding whether to offer or to make
an extension of credit and (b) to the extent practicable, from among such
dealers having an office in the same city.
"Relevant Jurisdiction" means, with respect to a party, the jurisdictions (a) in
which the party is incorporated, organised, managed and controlled or considered
to have its seat, (b) where an Office through which the party is acting for
purposes of this Agreement is located, (c) in which the party executes this
Agreement and (d) in relation to any payment, from or through which such payment
is made.
"Scheduled Payment Date" means a date on which a payment or delivery is
to be made under Section 2(a)(i) with respect to a Transaction.
"Set-off" means set-off, offset, combination of accounts, right of retention or
withholding or similar right or requirement to which the payer of an amount
under Section 6 is entitled or subject (whether arising under this Agreement,
another contract, applicable law or otherwise) that is exercised by, or imposed
on, such payer.
"Settlement Amount" means, with respect to a party and any Early Termination
Date, the sum of:--
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation is determined; And
(b) such party's Loss (whether positive or negative and without reference to any
Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not (in
the reasonable belief of the party making the determination) produce a
commercially reasonable result.
"Specified Entity" has the meaning specified in the Schedule.
"Specified Indebtedness" means, subject to the Schedule, any obligation (whether
present or future, contingent or otherwise, as principal or surety or otherwise)
in respect of borrowed money.
"Specified Transaction" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into between one party to this Agreement (or any Credit Support Provider of such
party or any applicable Specified Entity of such party) and the other party to
this Agreement (or any Credit Support Provider of such other party or any
applicable Specified Entity of such other party) which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions), (b) any combination of
these transactions and (c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant confirmation.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Tax" means any present or future tax, levy, impost, duty, charge, assessment or
fee of any nature (including interest, penalties and additions thereto) that is
imposed by any government or other taxing authority in respect of any payment
under this Agreement other than a stamp, registration, documentation or similar
tax.
"Tax Event" has the meaning specified in Section 5(b).
"Tax Event Upon Merger" has the meaning specified in Section 5(b).
"Terminated Transactions" means with respect to any Early Termination Date (a)
if resulting from a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either case) in effect
immediately before the effectiveness of the notice designating that Early
Termination Date (or, if "Automatic Early Termination" applies, immediately
before that Early Termination Date).
"Termination Currency" has the meaning specified in the Schedule.
"Termination Currency Equivalent" means, in respect of any amount denominated in
the Termination Currency, such Termination Currency amount and, in respect of
any amount denominated in a currency other than the Termination Currency (the
"Other Currency"), the amount in the Termination Currency determined by the
party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date, or, if
the relevant Market Quotation or Loss (as the case may be), is determined as of
a later date, that later date, with the Termination Currency at the rate equal
to the spot exchange rate of the foreign exchange agent (selected as provided
below) for the purchase of such Other Currency with the Termination Currency at
or about 11:00 a.m. (in the city in which such foreign exchange agent is
located) on such date as would be customary for the determination of such a rate
for the purchase of such Other Currency for value on the relevant Early
Termination Date or that later date. The foreign exchange agent will, if only
one party is obliged to make a determination under Section 6(e), be selected in
good faith by that party and otherwise will be agreed by the parties.
"Termination Event" means an Illegality, a Tax Event or a Tax Event Upon Merger
or, if specified to be applicable, a Credit Event Upon Merger or an Additional
Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of the
cost (without proof or evidence of any actual cost) to each party (as certified
by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early Termination
Date, the aggregate of (a) in respect of all Terminated Transactions, the
amounts that became payable (or that would have become payable but for Section
2(a)(iii)) to such party under Section 2(a)(i) on or prior to such Early
Termination Date and which remain unpaid as at such Early Termination Date and
(b) in respect of each Terminated Transaction, for each obligation under Section
2(a)(i) which was (or would have been but for Section 2(a) (iii)) required to be
settled by delivery to such party on or prior to such Early Termination Date and
which has not been so settled as at such Early Termination Date, an amount equal
to the fair market value of that which was (or would have been) required to be
delivered as of the originally scheduled date for delivery, in each case
together with (to the extent permitted under applicable law) interest, in the
currency of such amounts, from (and including) the date such amounts or
obligations were or would have been required to have been paid or performed to
(but excluding) such Early Termination Date, at the Applicable Rate. Such
amounts of interest will be calculated on the basis of daily compounding and the
actual number of days elapsed. The fair market value of any obligation referred
to in clause (b) above shall be reasonably determined by the party obliged to
make the determination under Section 6(e) or, if each party is so obliged, it
shall be the average of the Termination Currency Equivalents of the fair market
values reasonably determined by both parties.
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.
XXXXXX XXXXXXX CAPITAL SERVICES INC. XXXXX FARGO BANK NATIONAL
ASSOCIATION, not in its individual
capacity but solely in its
representative capacity as Paying
Agent on behalf of XXXXXX XXXXXXX
CAPITAL I TRUST 2007-IQ16 pursuant
to the Pooling and Servicing
Agreement
By: /s/ Xxxxxxxxx Xxxxxx By: /s/ Xxx Mofsneson
------------------------------ ---------------------------
Name: Xxxxxxxxx Xxxxxx Name: Xxx Mofseson
Title: Authorized Signatory Title: Vice President
Date: 11/29/2007 Date: 11/29/2007
SCHEDULE
TO THE
1992 ISDA MASTER AGREEMENT
dated as of November 29, 2007
between
XXXXXX XXXXXXX CAPITAL SERVICES INC.
("Party A")
and
XXXXXX XXXXXXX CAPITAL I TRUST 2007-IQ16
("Party B")
Termination Provisions
"Specified Entity" means in relation to Party A for the purpose of:
Section 5(a)(v), None Specified
Section 5(a)(vi), None Specified
Section 5(a)(vii), None Specified
Section 5(b)(iv), None Specified
and in relation to Party B for the purpose of:
Section 5(a)(v), None Specified
Section 5(a)(vi), None Specified
Section 5(a)(vii), None Specified
Section 5(b)(iv), None Specified
"Specified Transaction" has the meaning specified in Section 14.
Events of Default. The following Events of Default shall apply to the specified
party:
Party A Party B
------- -------
(i) Section 5(a)(i), Failure to Pay or Deliver Applicable (as modified below) Applicable
(ii) Section 5(a)(ii), Breach of Agreement Not Applicable Applicable
(iii) Section 5(a)(iii), Credit Support Default Applicable Not Applicable
(iv) Section 5(a)(iv), Misrepresentation Not Applicable Not Applicable
(v) Section 5(a)(v), Default Under Specified Transaction Not Applicable Not Applicable
(vi) Section 5(a)(vi), Cross Default Applicable Applicable
(vii) Section 5(a)(vii), Bankruptcy Applicable Applicable
(viii) Section 5(a)(viii), Merger Without Assumption Applicable Applicable
Termination Events. The following Termination Events shall apply to the
specified party:
Party A Party B
------- -------
(i) Section 5(b)(i), Illegality Applicable Applicable
(ii) Section 5(b)(ii), Tax Event Not Applicable Not Applicable
(iii) Section 5(b)(iii), Tax Event Upon Merger Not Applicable Not Applicable
(iv) Section 5(b)(iv), Credit Event Upon Merger Not Applicable Not Applicable
The "Automatic Early Termination" provisions of Section 6(a) will not apply to
Party A and will not apply to Party B.
Payments on Early Termination. "Market Quotation" and "Second Method" will apply
for the purpose of Section 6(e) of this Agreement.
Notwithstanding the foregoing or anything to the contrary herein or in the
Confirmation:
(i) in connection with any Early Termination Date, any Settlement Amount
due or payable by Party B shall be deemed to be USD 0.00; and
(ii) in connection with any Event of Default with respect to which Party B
is a Defaulting Party or any Termination Event with respect to which Party
B is an Affected Party, any Settlement Amount due or payable shall be
deemed to be USD 0.00.
Failure to Pay or Deliver. With respect to Party A and any Floating Rate Payer
Payment Date, Section 5(a)(i) is amended by replacing the words "the third
Local Business Day after notice of such failure is given" in the last line
thereof with "11 a.m. New York time on the next Business Day (as defined
in the Pooling and Servicing Agreement) after the day on which notice of
such failure is given." The parties agree that notice referred to in the
proviso above shall be effective on the day that it is delivered,
notwithstanding that such delivery may occur after close of business.
"Termination Currency" means United States Dollars.
Additional Termination Event will apply.
1. The following shall constitute Additional Termination Events with
respect to Party B:
(A) any termination of the trust pursuant to Article X of the
Pooling and Servicing Agreement; or
(B) if the Pooling and Servicing Agreement is supplemented or
amended or any provision thereof is waived without the consent of
Party A and such supplement, amendment or waiver, in the reasonable
judgment of Party A, would adversely affect distributions to Party A
or would materially and adversely affect the rights or obligations
of Party A hereunder without the consent of Party A (which consent
will not be unreasonably withheld, conditioned or delayed).
For the purpose of the foregoing Additional Termination Events, the
Affected Party shall be Party B and all Transactions shall be
Affected Transactions.
2. The following shall constitute an Additional Termination Event with
respect to Party A:
Ratings Downgrade. Failure by Party A to take any action required
under the ratings downgrade provisions set forth below, unless
Rating Agency Confirmation (as defined in the Pooling and Servicing
Agreement) has been obtained from the relevant Rating Agency
notwithstanding such failure.
(a) If at any time the senior unsecured debt rating of Party A or
Party A's Credit Support Provider, whichever is higher,
assigned by S&P falls below a short term rating of "A-1" or,
if such party does not have a short term rating, a long term
rating of "A" (the "S&P Required Rating") then, Party A shall,
or shall cause its Credit Support Provider to, within 30 days
of the date of such downgrade:
(i) transfer all of its rights and obligations under this
Agreement to
(a) a United States entity which has the S&P Required
Rating, or
(b) a non US entity which (x) has the S&P Required
Rating and (y) agrees unconditionally to gross up
and, in connection therewith, also agrees that (1)
Section 2(d)(i)(4) of the Agreement shall be
amended to require such non US entity
unconditionally to gross up in the event that a
withholding tax is imposed on payments being made
by such non US entity, (2) the definition of
"indemnifiable tax" shall be amended to cover any
and all withholding tax, (3) the provision in
Section 2(d)(i)(4) of the Agreement allowing such
non US entity to be excused from having to "gross
up" due to Party B's breach of a tax
representation or failure to notify non US entity
of a breach of a tax representation shall be
deleted, and (4) Section 2(d)(ii) of the Agreement
shall be amended to delete any obligation by Party
B to make payments to such non US entity for any
payments made by such non US entity without
deduction for taxes (for which there is no
obligation on the part of the non US entity to
gross up), provided that there shall not be any
such amendment for any payment obligations of such
non US entity to Party B for such taxes.
Notwithstanding anything in the foregoing to the
contrary, such non US entity shall have a right,
in lieu of performing any obligation in clause (y)
above, to terminate the Transaction, with such non
US entity as the sole Affected Party, provided,
that, such non US entity will be responsible for
the cost of finding a replacement swap
counterparty and that such non US entity shall
continue to perform any obligation under clause
(y) above until its rights and obligations herein
are effectively transferred to such replacement
swap counterparty;
(ii) cause an entity with the S&P Required Rating to
guarantee the obligations of Party A or its Credit
Support Provider under this Agreement, subject to Rating
Agency Confirmation;
(iii) post collateral to Party B pursuant to the credit
support annex between the parties which is subject to
Rating Agency Confirmation and is dated as of the date
hereof (the "Credit Support Annex"); provided, however;
that Party A shall not have the option to post
collateral as described in this clause (iii) if its long
term rating is below BBB-, or if it has no long term
rating, its short term rating is below A-3, in which
case Party A will be required to effect an immediate
replacement in accordance with Part 1(i)2(a)(i) above;
or
(iv) establish any other arrangement for which Rating Agency
Confirmation has been obtained.
(b) (i) If Party A's Credit Support Provider's long term rating
assigned by Fitch is not at least "A" or Party A's Credit
Support Provider's long term rating assigned by DBRS is not at
least "A", then Party A shall within 30 days of any such
downgrade event, at the cost of Party A, (A) post collateral
pursuant to the ISDA Credit Support Annex attached hereto; (B)
cause an entity with the Required Ratings (as defined below)
to guarantee or provide an indemnity in respect of Party A's
obligations under this Agreement, in each case, subject to
Rating Agency Confirmation; (C) transfer all of its rights and
obligations under this Agreement to another entity with the
Required Ratings or whose credit support provider has the
Required Ratings (such entity the "Substitute Party") selected
by Party A and approved by Party B, subject to the assumption
by the Substitute Party of all of Party A's obligations
hereunder; or (D) enter into any other arrangement, subject to
Rating Agency Confirmation, provided that (i) the Substitute
Party shall have agreed in writing satisfactory to Party B to
enter into an agreement on terms substantially identical to
the terms of this Agreement and all Transactions hereunder,
(ii) as of the date of such assignment the Substitute Party
will not, as a result of such assignment, be required to
withhold or deduct on account of tax under this Agreement, and
(iii) a Termination Event or Event of Default does not occur
under this Agreement as a result of such assignment.
(ii) For purposes of the foregoing paragraph (b)(i), "Required
Ratings" shall mean (A) a long term rating of at least "A" by
Fitch, (B) a long term rating of at least "A" by DBRS and (C)
the S&P Required Ratings.
(c) For the avoidance of doubt, Party A shall be responsible for:
(i) locating a party with the required ratings to transfer
(within 30 days (or such shorter time period as set out
above, as applicable) and at its own cost) all its
interest in and obligations under this Agreement or to
guarantee or provide an indemnity in respect of, its
obligations under this Agreement; and
(ii) any cost incurred by it in complying with its
obligations under this Part 1(i)2.
For the purpose of this Part 1(i)2, Party A shall be the Affected
Party and all Transactions shall be Affected Transactions.
Part 2. Tax Representations
(a) 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 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.
(b) Payee Tax Representations. For the purpose of Section 3(f),
Party A makes the following representation:
It is a corporation organized or formed under the laws of the State of
Delaware.
Party B makes the following representation:
Party B is a common law trust organized under and governed by the laws of
the State of New York.
Part 3. Agreement to Deliver Documents
For the purpose of Sections 4(a)(i) and (ii), each party agrees to deliver
the following documents, as applicable:
(a) 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 A correct, complete and (i) Immediately after the
executed U.S. Internal execution of this Agreement;
Revenue Service Form W-9 or (ii) promptly upon reasonable
any successor thereto, that demand by Party B; and (iii)
eliminates U.S. federal promptly upon any Form W-9 (or any
withholding tax and backup successors thereto) previously
withholding on payments under provided by Party A becoming
this Agreement. obsolete or incorrect
Party B Either (a) if Party B is (i) Prior to the first
treated as a domestic grantor Distribution Date, to the extent
trust for U.S. federal income in possession of Party B;
tax purposes, a correct, (ii) promptly upon reasonable
complete and executed U.S. demand by Party A; and (iii)
Internal Revenue Service Form promptly upon any Form W-9,
W-9 or any successor thereto, W-8IMY, W-8BEN or W-8ECI (or any
that eliminates U.S. federal successors thereto) previously
withholding tax and backup provided by Party B becoming
withholding on payments under obsolete or incorrect.
this Agreement, or (b) if
Party B is treated as a
foreign grantor trust for
U.S. federal income tax
purposes, a correct, complete
and executed U.S. Internal
Revenue Service Form W-8IMY
or any successor thereto, and
a complete and executed U.S.
Internal Revenue Service Form
X-0XXX, X-0XXX, X-0XXX or W-9
(or any successor thereto)
from each Holder of a
Certificate (and, where
applicable, such forms from
the beneficial owners of such
Certificate), and in any case
in which the Holder of a
Certificate is eligible for
the benefits of an income tax
treaty with the United
States, a Form W-8BEN
including a claim of treaty
benefits under Part II and
with Part III marked,
claiming such benefits with
respect to all payments
received with respect to the
Certificates, in each case
that eliminates U.S. federal
withholding tax and backup
withholding on payments under
this Agreement.
(b) Other documents to be delivered are:
Covered by
Party required to Section 3(d)
deliver document Form/Document/Certificate Date by which to be delivered Representation
---------------- ------------------------- ----------------------------- --------------
Party A Either (1) a signature booklet containing Upon execution of this Yes
and secretary's certificate and resolutions Agreement and as deemed
Party B ("authorizing resolutions") authorizing necessary for any further
the party to enter into derivatives documentation.
transactions of the type contemplated by
the parties or (2) a secretary's
certificate, authorizing resolutions and
incumbency certificate, in either case, for
such party and any Credit Support Provider
of such party reasonably satisfactory in
form and substance to the other party.
Party A A duly executed copy of the Credit Support As soon as practicable after No
and Document specified in Part 4 of this the execution of this Agreement.
Party B Schedule.
Party B A duly executed copy of the Pooling and As soon as practicable after No
Servicing Agreement and a copy of the the execution of this Agreement.
final Prospectus Supplement and Prospectus.
Party A A copy of the annual report of Xxxxxx Promptly following demand by No
Xxxxxxx containing audited consolidated Party B when available, while
financial statements for each such fiscal there are any obligations
year, certified by independent certified outstanding under this
public accountants and prepared in Agreement.
accordance with generally accepted
accounting principles in the country in
which such party is organized.
Party B A copy of each Monthly Certificateholders As specified in the Pooling and
Report (as defined in the Pooling and Servicing Agreement
Servicing Agreement).
Party B Certified copies of documents evidencing As soon as practicable after Yes
Party B's capacity to execute this the execution of this Agreement.
Agreement, each Confirmation and any Credit
Support Document and to perform its
obligations hereunder and thereunder.
Party A An opinion of counsel reasonably Upon execution of this No
and satisfactory in form and substance to the Agreement.
Party B other party.
Party B Any notice or other information delivered On any date on which such No
or transmitted to Certificateholders under notice or other information is
the Pooling and Servicing Agreement with delivered or transmitted to
respect to (i) the occurrence of an "Event Certificate Holders under the
of Default" (as defined in the Pooling and Pooling and Servicing Agreement.
Servicing Agreement), (ii) any reduction in
the principal amount of any Certificate,
(iii) the waiver of any default or any
provision under the Pooling and Servicing
Agreement, (iv) any commencement of the
sale of the assets of Party B under Article
X of the Pooling and Servicing Agreement
and the completion of such sale and (iv)
any proposed amendment, supplement or
modification of the Pooling and Servicing
Agreement.
Party A Such other documents as the other party Upon request. No
and may reasonably request.
Party B
Part 4. Miscellaneous
(a) Addresses for Notices. For the purpose of Section 12(a):
(i) Address for notices or communications to Party A:
Xxxxxx Xxxxxxx Capital Services Inc.
Transaction Management Group
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Chief Legal Officer
Facsimile No.: 000-000-0000
With a copy to:
Xxxxxx Xxxxxxx Capital Services Inc.
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Manager, Fixed Income Treasury Group
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
(ii) Address for notices or communications to Party B:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX, 00000-0000
Attention: Corporate Trust Services - MSCI 2007-IQ16
Telephone: 000-000-0000
Fax: 000-000-0000
(b) 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."
(c) Process Agent. Not Applicable.
(d) Offices. The provisions of Section 10(a) will apply to Party A and to
Party B.
(e) Multibranch Party. For the purpose of Section 10(c):
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(f) "Calculation Agent" means Party A, unless otherwise specified in a
Confirmation in reference to the relevant Transaction.
(g) "Credit Support Document" means the Credit Support Annex and any other
document (if any) which by its terms secures, guarantees or otherwise
supports either or both parties' obligations under this Agreement,
including, with respect to Party A, the guarantee of Xxxxxx Xxxxxxx.
(h) "Credit Support Provider" means in relation to Party A: Xxxxxx Xxxxxxx.
"Credit Support Provider" means in relation to Party B: Not Applicable.
(i) 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.
(j) 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.
(k) Netting of Payments. Clause (ii) of Section 2(c) will apply to any amounts
payable with respect to Transactions from the date of this Agreement.
(l) "Affiliate" has the meaning specified in Section 14; provided, however,
that with respect to Party A, such definition shall be understood to
exclude Xxxxxx Xxxxxxx Derivative Products Inc.
Part 5. Other Provisions
(a) Additional Representations. Section 3 is hereby amended by adding at the
end thereof the following Subparagraphs:
(g) It is an "eligible contract participant" as defined in Section
1a(12) of the Commodity Exchange Act (7 U.S.C. 1a), as amended by
the Commodity Futures Modernization Act of 2000.
(h) 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.
(i) 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).
Party B (the Paying Agent on behalf of the Trust) shall be deemed to have
made the following representations:
(i) 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 Paying Agent.
(ii) Party B represents and agrees that (i) each Transaction hereunder is
and will continue to be an "Eligible Swap" as defined in Prohibited
Transaction Individual Exemption 2002-41 and (ii) the execution of
this Agreement by Party B and the consummation of the Transactions
hereunder do not and will not constitute or otherwise involve a
non-exempt prohibited transaction under the Employee Retirement
Income Security Act of 1974, as amended or Section 4975 of the
Internal Revenue Code of 1986, as amended. Without limitation to the
generality of the foregoing, Party B represents and agrees that the
Trust and its activities are and will be entitled to full relief
under Prohibited Transaction Individual Exemption 2002-41
(including, without limitation, with respect to the Class A-MFL
Certificates and the Class A-JFL Certificates).
(b) Confirmations. Party A will deliver to Party B a Confirmation relating to
the Transaction.
(c) Relationship Between Parties. Each party represents to the other party and
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):
(A) Non-Reliance. It is acting for its own account, and it 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. 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.
(B) 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.
(C) Status of Parties. The other party is not acting as a fiduciary for
or an adviser to it in respect of that Transaction.
(d) No Gross Up. Neither party will be required to pay additional amounts in
respect of any Indemnifiable Tax or be under any obligation to pay to the
other party any amount in respect of any liability of such other party for
or on account of any Tax and Section 2(d)(i)(4) of this Agreement shall be
construed accordingly.
(e) No Transfer without Prior Confirmation by Rating Agencies. Section 7 of
this Agreement is hereby amended by inserting the following immediately
after the words "other party" and immediately before the words ", except
that:" "and unless Rating Agency Confirmation has been obtained with
respect to such transfer".
(f) Limited Recourse. Notwithstanding anything to the contrary, the liability
of Party B in relation to this Agreement and any Confirmation hereunder is
limited to recourse solely to the Fixed Interest Distribution on each of
the Class A-MFL Regular Interest or Class A-JFL Regular Interest, as
applicable, in accordance with Section 8.31(b) of the Pooling and
Servicing Agreement. Party A shall have no right to institute any
proceedings for the enforcement of a lien on the assets of the Trust
except to the extent of the Fixed Interest Distribution on the Class A-MFL
Regular Interest or Class A-JFL Regular Interest, as applicable. Upon the
realization of the assets of the Trust and distribution of the net
proceeds thereof, to the extent of the Fixed Interest Distribution on the
Class A-MFL Regular Interest, and in each case in accordance with the
priorities set forth in the Pooling and Servicing Agreement, Party A shall
not be entitled to take any further steps against Party B to recover any
sums due but still unpaid hereunder, under the Pooling and Servicing
Agreement and all claims hereunder and all claims in respect of the
Pooling and Servicing Agreement shall be extinguished.
(g) Paying Agent Capacity. It is expressly understood and agreed by the
parties hereto that insofar as this Agreement is executed on behalf of the
Trust (i) this Agreement is executed and delivered by Xxxxx Fargo Bank
National Association, not in its individual capacity but solely as Paying
Agent under the Pooling and Servicing Agreement pursuant to a direction
contained therein and in the exercise of the powers and authority
conferred and vested in it, (ii) each of the representations, undertakings
and agreements herein made on the part of the Trust is made and intended
not as a representation, undertaking or agreement of Xxxxx Fargo Bank
National Association in its individual capacity but is made and intended
for the purpose of binding only the 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 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.
(h) Non-Petition. Party A hereby irrevocably and unconditionally agrees that
it will not, prior to the date following the payment in full of the
Certificates, and the expiration of a period of one year and one day
thereafter, institute against, or join any other person in instituting
against, Party B, any bankruptcy, reorganization, arrangement, insolvency
or similar proceeding under the laws of the United States or any other
jurisdiction; provided that this shall not restrict or prohibit Party A
from joining in any bankruptcy, reorganization, arrangement, insolvency,
moratorium, liquidation or similar proceeding under applicable laws which
has been initiated by Party B or by Party B in conjunction with any other
person. Party A acknowledges that the foregoing proviso will not confer
upon it any additional rights or recourse against Party B other than as
set forth in this Agreement.
(i) No Amendment without Prior Confirmation by Rating Agencies. Section 9(b)
of this Agreement is hereby amended by adding the following at the end of
such Section: ", and Rating Agency Confirmation has been obtained with
respect to such amendment".
(j) No Termination or Waiver by Party B without Prior Confirmation by Rating
Agencies. Party B shall not designate an Early Termination Date or waive
any right under this Agreement without first obtaining Rating Agency
Confirmation.
(k) Transaction. For the avoidance of doubt and notwithstanding anything to
the contrary herein, the only transactions to be entered into under this
Agreement will be the transactions entered into under this Agreement dated
even date hereof (Reference Numbers HS236 and HS238) (the "Transactions").
Party A and Party B agree that this Agreement will govern only such
Transactions and any other transactions between the parties hereto shall
be governed by separate agreements. All references in the Agreement to
"Confirmation" shall be solely to the confirmations evidencing the
foregoing transactions (Reference Numbers HS236 and HS238), and all
references to "Transaction" in the Agreement shall be to the the above
listed Transactions.
(l) Additional Definitions. All capitalized terms used but not otherwise
defined in this Agreement shall have the meanings assigned to them in the
Pooling and Servicing Agreement.
"Certificates" shall mean each of the Class A-MFL Certificates and Class
A-JFL Certificates, each as defined in the Pooling and Servicing
Agreement.
"Depositor" shall mean Xxxxxx Xxxxxxx Capital I Inc., a Delaware
corporation.
"Paying Agent" shall mean Xxxxx Fargo Bank National Association in its
capacity as paying agent under the Pooling and Servicing Agreement.
"Pooling and Servicing Agreement" shall mean that certain Pooling and
Servicing Agreement, dated as of November 1, 2007, by and among Xxxxxx
Xxxxxxx Capital I Inc., Capmark Finance, Inc., Xxxxx Fargo Bank, National
Association, NCB, FSB, Centerline Servicing Inc. National Consumer
Cooperative Bank, and LaSalle Bank National Association, as amended,
supplemented, modified, restated or replaced from time to time.
"Rating Agencies" means, for so long as each of them is rating the
Certificates, Standard & Poor's, a division of The XxXxxx-Xxxx Companies,
Inc. ("S&P"), Fitch, Inc. ("Fitch") and DBRS, Inc. ("DBRS") and their
respective successors and assigns.
"Trust" shall mean the Xxxxxx Xxxxxxx Capital I Trust 2007-IQ16 formed
pursuant to the Pooling and Servicing Agreement.
"Trustee" shall mean LaSalle Bank National Association in its capacity as
trustee under the Pooling and Servicing Agreement.
(m) Additional Hedge Agreements. Party B covenants and agrees that it will not
enter into additional hedge agreements in respect of the Notes or the
Certificates without first obtaining (i) prior to the designation of an
Early Termination Date, the express prior written consent of Party A,
which consent shall not be unreasonably withheld and (ii) Rating Agency
Confirmation.
(n) Modification of Guarantee. The Parties covenant and agree that no
amendment, modification or waiver in respect of the guarantee made by
Xxxxxx Xxxxxxx and dated as of the date hereof, guaranteeing the
obligations of Party A under this Agreement will be effective without
obtaining Rating Agency Confirmation.
(o) No Set-off. Notwithstanding the provisions of Section 6(e) of this
Agreement, no amounts payable under this Agreement will be subject to
Set-off.
(p) Payments to Party B. Party A agrees to make all payments due hereunder to
Party B to the Paying Agent on behalf of the Trust.
IN WITNESS WHEREOF, the parties have executed this Schedule by their duly
authorized officers as of the date hereof.
XXXXXX XXXXXXX CAPITAL SERVICES INC.
By: /s/ Xxxxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Authorized Signatory
XXXXXX XXXXXXX CAPITAL I TRUST 2007-IQ16
(A New York common law trust)
By: XXXXX FARGO BANK, NATIONAL
ASSOCIATION, not in its individual
capacity but solely in its capacity as
Paying Agent on behalf of Xxxxxx
Xxxxxxx Capital I Trust 2007-IQ16
By: /s/ Xxx Mofseson
----------------------------------------
Name: Xxx Xxxxxxxxx
Title: Authorized Signatory
Xxxxxx Xxxxxxx
Date: November 29, 2007
To: Xxxxxx Xxxxxxx Capital I From:
Trust 2007 - IQ16
Attn: Client Manager - MSCI Contact: New York Derivative Client
2007-IQ16 Services Group
Fax: 000-000-0000 Fax:
Tel: 000-000-0000 Tel:
Re: Interest Rate Swap Ref. No. HS236 for the Class A-MFL Certificates and
HS238 for the Class A-JFL Certificates
This Master Confirmation relates to multiple transactions and, except as
expressly provided otherwise herein, this Master Confirmation evidences a
separate interest rate swap transaction (each, a "Transaction") with respect to
each of the transactions set forth in the schedule to this Master Confirmation
(as such the Confirmation schedule may be amended from time to time). Each
Transaction will be deemed to have been entered into pursuant to a separate
written confirmation (each, a "Confirmation") between Party A and Party B, on
the terms set forth in this Master Confirmation and the relevant entries in the
schedule (as such Confirmation schedule may be amended from time to time). Each
Confirmation will constitute a "Confirmation" as referred to in the Agreement
specified below.
The purpose of this letter agreement is to confirm the terms and
conditions of the Swap Transaction entered into between us 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
hereby incorporated into this Confirmation. Capitalized terms used but not
defined herein, in the 2000 ISDA Definitions or in the Agreement (as defined
below) shall have the meanings assigned to them in the Pooling and Servicing
Agreement. In the event of any inconsistency between those definitions and this
Confirmation, this Confirmation will govern.
1. This Confirmation supplements, forms part of, and is subject to, the
ISDA dated as of November 29, 2007, as amended and supplemented from time to
time (the "Agreement") between you and us. All provisions contained in the
Agreement govern this Confirmation except as expressly modified below.
2. The terms of the particular Transaction to which this Confirmation
relates are as follows:
Party A:
Party A Credit Support: Payments guaranteed by Xxxxxx Xxxxxxx
Party B: Xxxxxx Xxxxxxx Capital I Trust 2007
- IQ16
Trade Date: November 16, 2007
Notional Amount: With respect to the Fixed Rate Payer
Payment Date and the Floating Rate
Payer Payment Date occurring in
December 2007, the relevant
Class-Related Interest specified in
the Schedule to this Confirmation,
and with respect to the Fixed Rate
Payer Payment Date and the Floating
Rate Payer Payment Date occurring in
any calendar month after December
2007, the outstanding Principal
Balance of the Class A-MFL Regular
Interest or Class A-JFL Regular
Interest (and, correspondingly, the
Class A-MFL Certificates or Class
A-JFL Certificates), as applicable,
in effect as of the close of
business on the Distribution Date in
the immediately preceding calendar
month.
Effective Date: November 29, 2007
Termination Date: The earliest to occur of: (i) the
Distribution Date falling in
December 2049 and (ii) the date on
which the Notional Amount is reduced
to zero, in each case subject to
adjustment in accordance with the
Modified Following Business Day
Convention.
Fixed Amounts:
Fixed Rate Payer:
Fixed Rate Payer Period End Dates: The 1st day of each month, commencing on
December 1, 2007, to but excluding the 1st
day of the month in which the Termination
Date falls, subject to No Adjustment.
Fixed Rate Payer Payment Dates: One(1) Business Day prior to each
Floating Rate Payer Period End Date.
Initial Fixed Rate Payer From and including November 1, 2007
Calculation Period: to but excluding December 1, 2007
Fixed Rate: The Weighted Average Net Mortgage
Rate less the Fixed Rate Reduction
specified for the applicable Class
of Certificates in Schedule hereto.
Fixed Rate Day Count Fraction: 30/360
Adjustment to Fixed Amount: In the event that the Fixed Amount
due on a Fixed Rate Payer Payment
Date in respect of any Calculation
Period is greater than the interest
payable with respect to the Class
A-MFL Regular Interest or Class
A-JFL Regular Interest (as
applicable) due to (a) the
occurrence of Net Aggregate
Prepayment Interest Shortfalls
allocated to the Class A-MFL Regular
Interest or the Class A-JFL Regular
Interest (as applicable) or (b)
other losses on the mortgage loans
that reduce amounts available for
payments to the Swap Counterparty
(collectively, such amount the
"Party B Shortfall"), the total
payment due from the Fixed Rate
Payer on such Fixed Rate Payment
Date shall be adjusted and reduced
by the amount of such Party B
Shortfall.
Floating Amounts:
Floating Rate Payer:
Floating Rate Payer Period End The fourth business day following
Dates: each Determination Date, commencing
December 14, 2007, up to and including the
Termination Date, subject to adjustment in
accordance with the Business Day
Convention.
Floating Rate Payer Payment Dates: One(1) Business Day prior to each
Floating Rate Payer Period End Date.
Initial Floating Rate Payer From and including November 1, 2007
Calculation through but excluding December 14,
Period: 2007, subject to adjustment in
accordance with the Modified
Following Business Day Convention.
Floating Rate Option: USD-LIBOR-BBA (provided that for any
Calculation Period in which Party B
notifies Party A that USD-LIBOR-BBA
deviates from LIBOR (as such term is
defined in the Pooling and Servicing
Agreement), the Floating Rate Option
will be LIBOR as notified by Party B
to Party A).
Designated Maturity: One (1) month
Spread: As specified in the Schedule hereto.
Floating Rate for initial Period: As specified in the Schedule hereto.
(inclusive of Spread)
Floating Rate Day Count Fraction:
Reset Dates: The first day of each Period
Compounding:
Adjustment to Floating Amount: To the extent, that the Fixed Amount
due from the Fixed Rate Payer on any
Fixed Rate Payer Payment Date is
reduced as described in paragraph
"Adjustment to Fixed Amount" above,
the Floating Amount otherwise
payable by the Floating Rate Payer
will be reduced by the same dollar
amount.
Notification of USD-LIBOR-BBA: Promptly after the determination of the
Floating Rate on each Reset Date, Party A
will notify Party B of such Floating Rate.
Additional Payments (1): On the Effective Date, Party B shall pay
the Initial Exchange Amount specified on
Schedule 1 hereto for the Class A-JFL
Certificates to Party A.
On the Effective Date, Party A shall pay
the Initial Exchange Amount specified on
Schedule 1 hereto for the Class A-MFL
Certificates on the instructions of Party B
to the following account:
Bank Name: Citibank NA
ABA Number: 000-000-000
Account Name: Xxxxxx Xxxxxxx & Co.
Account Number: 3053-9971
FFC A/C: 088-0070H-0
Attn: Xxxxx Xxxxxxx
Additional Payments (2): Party B shall pay to Party A any
Yield Maintenance Charges and
Prepayment Premiums (each as defined
in the Pooling and Servicing
Agreement) related to the Class
A-MFL Certificates and the Class
A-JFL Certificates on each date on
which such amounts are due to be
paid under the Pooling and Servicing
Agreement.
Business Days: Any day other than a Saturday, a
Sunday or a day on which banking
institutions in the states where the
Trustee, the Paying Agent or the
Swap Counterparty are located and
are authorized or obligated by law
or executive order to remain closed,
which shall initially be, with
respect to the Trustee, Chicago,
Illinois and Columbia, Maryland, and
Minneapolis, Minnesota, with respect
to the Paying Agent, and, with
respect to the Swap Counterparty,
New York and each party shall notify
the other of any changes.
Calculation Agent: Party A
3. Account Details:
Payments to Party A: Citibank, New York
ABA No. 021 000 089
For: Xxxxxx Xxxxxxx Capital
Services Inc.
Account No. 00000000
Payments to Party B: Xxxxx Fargo Bank, N.A.
ABA: 000-000-000
Account: 0000000000
FBO: SAS Clearing
For Further Credit: 53185900
Ref: MSCI 2007-IQ16
Attention: Corporate Trust
Services (CMBS)
410-884-2000
Documentation Contacts: Institutional Clients
Hotline: x0 000-000-0000
Facsimile: x0 000-000-0000
Email:
Derivative.Confirms.Americas@
xxxxxxxxxxxxx.xxx
Operations Contact: Tel 000 000-0000
Fax 000 000 0000
Please confirm that the foregoing correctly sets forth the terms of our
agreement Ref. HS236 and HS238 by executing this Confirmation and returning it
to us.
Best Regards,
BY:/s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
Acknowledged and agreed as of the date first written above:
XXXXXX XXXXXXX CAPITAL I TRUST 2007-IQ16
(A New York common law trust)
BY: XXXXX FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but solely in its capacity as Paying Agent on
behalf of Xxxxxx Xxxxxxx Capital I Trust 2007-IQ16 pursuant to the Pooling and
Servicing Agreement
BY: /s/ Xxx Xxxxxxxxx
---------------------------------
Name: Xxx Xxxxxxxxx
Title: Vice President
Xxxxxx Xxxxxxx
SCHEDULE 1
Terms of Transactions
Floating Rate
Initial Exchange Fixed Rate for Initial
Transaction Notional Amount Amount Reduction Spread Period
----------- --------------- ---------------- ---------- ------ -------------
Class A-MFL USD20,000,000 USD 204,290 -0.042% 1.130% 5.94229%
Class A-JFL USD30,000,000 USD 357,217 0.00% 1.450% 6.26229%
Paragraph 13. Elections and Variables
(a) Security Interest for "Obligations". The term "Obligations" as used in
this Annex includes the following additional obligations with respect to
Party A and Party B: None.
(b) Credit Support Obligations.
(i) "Delivery Amount" ,"Return Amount" and "Credit Support Amount" each
has the meaning specified in Paragraph 3;
(ii) Eligible Collateral. The following items will qualify as "Eligible
Collateral" for Party A:
Valuation
Eligible Collateral Party A Percentage
(A) Cash [X] 100%
(B) Treasury Securities with a [X] 97%
remaining maturity of 52 weeks or
less
(C) Treasury Securities with a [X] 93%
remaining maturity of more than 52
weeks but no more than 5 years
(D) Treasury Securities with a [X] 92%
remaining maturity of more than 5
years but no more than 10 years
(E) Treasury Securities with a [X] 88%
remaining maturity of more than 10
years but no more than 30 years
(F) Agency Notes with a remaining [X] 87%
maturity of no more
than 15 years
(G) Agency Notes with a remaining [X] 86%
maturity of more than
15 years but no more than 30 years
(H) Commercial Paper rated "A-1+" by [X] [100]%
S&P
(I) Commercial Paper rated "A-1" by [X] [98]%
S&P with a remaining maturity of
180 days or less
(J) Commercial Paper rated "A-1" by [X] [94]%
S&P with a remaining maturity of
more than 180 days but no more
than 360 days
(K) Corporate Bonds with a long-term, [X] 66%
senior, unsecured, unsubordinated
debt rating as to principal and
interest of "AAA" by S&P other
than the Corporate Bonds rated
"AAA" by S&P in Party B's
portfolio; provided however that
such Corporate Bonds shall not
have a remaining maturity of more
than 30 years
(iii) Other Eligible Support: Not applicable.
(iv) Thresholds.
(A) "Independent Amount" means with respect to each party, zero.
(B) "Threshold" means with respect to Party A: Infinite; provided,
however if Party A is downgraded (as described in Part 1(i) of
the Schedule) and is required to post collateral pursuant to
the terms of Part 1(i), then the "Threshold" with respect to
Party A, shall be zero (unless otherwise agreed in writing by
the Rating Agencies);
"Threshold" means with respect to Party B: Infinite.
(C) "Minimum Transfer Amount" means with respect to Party A: USD
100,000; and with respect to Party B: USD 100,000; provided,
however, that if such party is a Defaulting Party at the time,
"Minimum Transfer Amount" shall mean zero with respect to such
party.
(D) Rounding. The Delivery Amount and the Return Amount will not
be rounded up or down.
(c) Valuation and Timing.
(i) "Valuation Agent" means Party A.
(ii) "Valuation Date" means each New York Banking Day (as defined in the
2000 ISDA Definitions as published by the International Swaps and
Derivatives Association, Inc. ("ISDA") without regard to any
amendment after the date hereof) (the "ISDA Definitions").
(iii) "Valuation Time" means the close of business in New York on the New
York Banking Day before the Valuation Date or date of calculation,
as applicable, or any time on the Valuation Date or date of
calculation, as applicable; provided that the calculations of Value
and Exposure will be made as of approximately the same time on the
same date.
(iv) "Notification Time" means 1:00 p.m., New York time, on a Local
Business Day.
(d) Conditions Precedent and Secured Party's Rights and Remedies. The
following Termination Events will be a "Specified Condition" for the party
specified (that party being the Affected Party of the Termination Event
occurs with respect to that party): Not Applicable.
(e) Substitution.
(i) "Substitution Date" has the meaning specified in Paragraph 4(d)(ii).
(ii) Consent. The Pledgor need not obtain the Secured Party's consent for
any substitution pursuant to Paragraph 4(d).
(f) Dispute Resolution.
(i) "Resolution Time" means 1:00 p.m., New York time, on the Local
Business Day following the date on which the notice of the dispute
is given under Paragraph 5.
(ii) Value. For the purpose of Paragraphs 5(i)(C) and 5(ii), the Value of
Posted Credit Support or of any Transfer of Eligible Credit Support
or Posted Credit Support, as the case may be, will be calculated by
the Valuation Agent in accordance with standard market practice
using third party sources (such as, by way of example only,
Bloomberg or Reuters) where available.
(iii) Alternative. The provisions of Paragraph 5 will apply.
(g) Holding and Using Posted Collateral.
(i) Eligibility to Hold Posted Collateral; Custodian.
Party B and its Custodian will be entitled to hold Posted Collateral pursuant to
Paragraph 6(b); provided that the following conditions applicable to it are
satisfied:
(A) Party B is not a Defaulting Party.
(B) Posted Collateral may be held only in the following
jurisdictions: the United States of America.
Initially, the Custodian for Party B is: the Paying Agent (in
accordance with the Pooling and Servicing Agreement).
(ii) Use of Posted Collateral. The provisions of Paragraph 6(c) will
apply.
(h) Distributions and Interest Amount.
(i) "Interest Rate". The "Interest Rate" shall be the rate actually
earned by the Custodian on the Posted Collateral as from time to
time in effect and the Custodian shall hold all Posted Collateral in
the form of Cash in an interest bearing overnight account.
(ii) Transfer of Interest Amount. The Transfer of the Interest Amount
will be made on the last Local Business Day of each calendar month
and on any Local Business Day that Posted Collateral in the form of
cash in the relevant currency is Transferred to the Pledgor pursuant
to Paragraph 3(b).
(iii) Alternative to Interest Amount. The provisions of Paragraph 6(d)(ii)
will apply.
(i) Other Eligible Support and Other Posted Support. "Value" and "Transfer"
with respect to Other Eligible Support and Other Posted Support each
means: Not applicable.
(j) Demands and Notices
All demands, specifications and notices to Party A under this Annex will
be made to:
Xxxxxx Xxxxxxx Capital Services Inc.
0000 Xxxxxxxx, 0xx Xxxxx--XXX Xxxxxxxxxxx
Xxx Xxxx, XX 00000
Attn: FID Collateral Manager
Telephone No.: (212) 761 - 0877
Facsimile No.: (212) 507- 4949
Email: xxxxxxxxx@xxxxxxxxxxxxx.xxx
and all demands, specifications and notices to Party B under this Annex
will be made to:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX, 00000-0000
Attention: Corporate Trust Services - MSCI 2007-IQ16
Telephone: 000-000-0000
Fax: 000-000-0000
Email: xxx.x.xxxxxxxxx@xxxxxxxxxx.xxx
provided that any demand, specification or notice may be made by telephone
("Telephone Notice") between employees of each party if such Telephone
Notice is confirmed by a subsequent written instruction (which may be
delivered via facsimile or email) by the close of business on the same day
that such Telephone Notice is given.
(k) Addresses for Transfers.
Party A:
Cash: CITIBANK, New York
ABA No.: 021 000 089
Account No.: 3053 - 9883
Reference: MSCS Collateral
Treasury Securities
and Agency Notes: Bank of New York, New York/Xxxxxx Xxxxxxx
ABA No.: 000000000
Other Forms of Eligible Collateral: As provided by Party A.
Party B:
The Depository Trust Clearing Corp. (DTCC) DTCC Participant #[_____]
Institution ID #[_____] Agent ID #[______] Ref Trust A/C # [___]
Security Trade Cash Wire Instructions:
Xxxxx Fargo Bank, N.A.
ABA: 000-000-000
Account: 0000000000
FBO: SAS Clearing
For Further Credit: 53185900
Ref: MSCI 2007-IQ16
Attention: Corporate Trust Services (CMBS) 410-884-2000
(l) Other Provisions.
(i) Notwithstanding any other provision in this Agreement to the
contrary, no full or partial failure to exercise and no delay in
exercising, on the part of Party A or Party B, any right, remedy,
power or privilege permitted hereunder shall operate in any way as a
waiver thereof by such party, including without limitation any
failure to exercise or any delay in exercising to any or to the full
extent of such party's rights with respect to transfer timing
pursuant to Paragraph 4(b), regardless of the frequency of such
failure or delay.
(ii) In all cases, in order to facilitate calculation of the Delivery
Amount and the Return Amount for a particular Valuation Date in
accordance with Paragraph 3 of this Annex:
(A) Eligible Collateral;
(B) Exposure; and
(C) Posted Collateral
shall each be expressed in US Dollars. If any of these items are expressed in a
currency other than US Dollars, then they shall be converted into US Dollar
amounts at the spot exchange rate determined by the Valuation Agent on that
Valuation Date.
(iii) Paragraph 3(b) is hereby amended by (A) adding the following after the
phrase "(rounded pursuant to Paragraph 13)" in the fifth line thereof:
"provided however, that the Secured Party will, upon the Pledgor's
request, Transfer to the Pledgor all Posted Credit Support if the Credit
Support Amount is zero," and (B) amending clause (i) of the definition of
"Credit Support Amount" by deleting such clause and replacing it with "(i)
the sum of (x) the greater of $0 and Exposure that would be payable to the
Secured Party for the Valuation Date and (y) the product of the Volatility
Buffer (as defined in Paragraph 13 hereto) and the Notional Amount."
(iii) Form of Annex. The parties hereby agree that the text of the body of this
Annex is intended to be the printed form of 1994 ISDA Credit Support Annex
(Bilateral Form - ISDA Agreements Subject to New York Law Only version) as
published and copyrighted by the International Swaps and Derivatives
Association, Inc.
(m) Agreement as to Single Secured Party and Pledgor. Party A and Party
B agree that, notwithstanding anything to the contrary in the
recital to this Annex, Paragraph 1(b) or Paragraph 2 or the
definitions of Paragraph 12, (a) the term "Secured Party" as used in
this Annex shall mean only Party B, (b) the term "Pledgor" as used
in this Annex shall mean only Party A, (c) only Party A makes the
pledge and grant in Paragraph 2, the acknowledgement in the final
sentence of Paragraph 8(a) and the representations in paragraph 9
and (d) only Party A will be required to make Transfers of Eligible
Credit Support hereunder. Party A and Party B further agree that,
notwithstanding anything to the contrary in the recital to this
Annex or Paragraph 7, this Annex will constitute a Credit Support
Document only with respect to Party A, and the Events of Default in
Paragraph 7 will apply to Party A only.
(n) Additional Definitions
"Agency Notes" means U.S. Dollar-denominated fixed rate,
non-amortising, non-mortgage-backed, senior debt securities of fixed
maturity, rated AAA by S&P issued by any of the Federal Home Loan
Banks (including their consolidated obligations issued through the
Office of Finance of the Federal Home Loan Bank System), the Federal
National Mortgage Association, the Federal Home Loan Mortgage
Corporation or the Federal Farm Credit Bank.
"Commercial Paper" means U.S. Dollar-denominated commercial paper
issued by a corporation, finance company, partnership or limited
liability company.
"Corporate Bonds" means U.S. Dollar-denominated debt securities, which provides
for periodic interest payments in cash over the life of the security and
principal payments upon maturity or redemption, as applicable, with a remaining
maturity of 30 years or less issued by an entity other than an Agency or the
U.S. Treasury Department.
"Treasury Securities" means U.S. Dollar-denominated senior debt securities of
the United States of America issued by the U.S. Treasury Department and backed
by the full faith and credit of the United States of America.
"Volatility Buffer" shall be the percentage applicable to the credit rating of
Party A by S&P as set forth in the table below:
Credit Rating of Maturities Maturities Maturities
Credit Support up to 5 greater than 5 greater than
Provider of Party A Years years and up 10 years
by S&P: to 10 years
"A-1" or higher or, 0.00 0.00 0.00
if no short term
rating from S&P
exists, the long-term
rating from S&P is at
least "Xx"
"X-0" 3.25% 4.00% 4.75%
"A-3" 4.00% 5.00% 6.25%
"BB+" or lower 4.50% 6.75% 7.50%
IN WITNESS WHEREOF, the parties have executed this Credit Support
Annex by their duly authorized officers as of the date hereof.
XXXXXX XXXXXXX CAPITAL SERVICES INC.
By: /s/ Xxxxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Authorized Signatory
XXXXXX XXXXXXX CAPITAL I TRUST 2007-IQ16
(A New York common law trust)
By: XXXXX FARGO BANK, NATIONAL ASSOCIATION
not in its individual capacity but
solely in its capacity as Paying Agent
on behalf of Xxxxxx Xxxxxxx Capital I
Trust 2007-IQ16 pursuant to the
Pooling and Servicing Agreement
By: /s/ Xxx Xxxxxxxxx
-----------------------------------------
Name: Xxx Xxxxxxxxx
Title: Vice President
(Bilateral Form) (ISDA Agreements Subject to New York Law Only)
ISDA(R)
International Swaps and Derivatives Association, Inc.
CREDIT SUPPORT ANNEX
to the Schedule to the
MASTER AGREEMENT
dated as of
November 29, 2007
between
XXXXXX XXXXXXX XXXXXX XXXXXXX CAPITAL I TRUST
CAPITAL SERVICES INC. 2007-IQ16
.....................................and.........................................
("Party A") ("Party B")
This Annex supplements, forms part of, and is subject to, the above-referenced
Agreement, is part of its Schedule and is a Credit Support Document under this
Agreement with respect to each party.
Accordingly, the parties agree as follows:--
Paragraph 1. Interpretation
(a) Definitions and Inconsistency. Capitalized terms not otherwise defined
herein or elsewhere in this Agreement have the meanings specified pursuant to
Paragraph 12, and all references in this Annex to Paragraphs are to Paragraphs
of this Annex. In the event of any inconsistency between this Annex and the
other provisions of this Schedule, this Annex will prevail, and in the event of
any inconsistency between Paragraph 13 and the other provisions of this Annex,
Paragraph 13 will prevail.
(b) Secured Party and Pledgor. All references in this Annex to the "Secured
Party" will be to either party when acting in that capacity and all
corresponding references to the "Pledgor" will be to the other party when acting
in that capacity; provided, however, that if Other Posted Support is held by a
party to this Annex, all references herein to that party as the Secured Party
with respect to that Other Posted Support will be to that party as the
beneficiary thereof and will not subject that support or that party as the
beneficiary thereof to provisions of law generally relating to security
interests and secured parties.
Paragraph 2. Security Interest
Each party, as the Pledgor, hereby pledges to the other party, as the Secured
Party, as security for its Obligations, and grants to the Secured Party a first
priority continuing security interest in, lien on and right of Set-off against
all Posted Collateral Transferred to or received by the Secured Party hereunder.
Upon the Transfer by the Secured Party to the Pledgor of Posted Collateral, the
security interest and lien granted hereunder on that Posted Collateral will be
released immediately and, to the extent possible, without any further action by
either party.
Paragraph 3. Credit Support Obligations
(a) Delivery Amount. Subject to Paragraphs 4 and 5, upon a demand made by the
Secured Party on or promptly following a Valuation Date, if the Delivery Amount
for that Valuation Date equals or exceeds the Pledgor's Minimum Transfer Amount,
then the Pledgor will Transfer to the Secured Party Eligible Credit Support
having a Value as of the date of Transfer at least equal to the applicable
Delivery Amount (rounded pursuant to Paragraph 13). Unless otherwise specified
in Paragraph 13, the "Delivery Amount" applicable to the Pledgor for any
Valuation Date will equal the amount by which:
(i) the Credit Support Amount exceeds
(ii) the Value as of that Valuation Date of all Posted Credit Support held
by the Secured Party.
(b) Return Amount. Subject to Paragraphs 4 and 5, upon a demand made by the
Pledgor on or promptly following a Valuation Date, if the Return Amount
for that Valuation Date equals or exceeds the Secured Party's Minimum
Transfer Amount, then the Secured Party will Transfer to the Pledgor
Posted Credit Support specified by the Pledgor in that demand having a
Value as of the date of Transfer as close as practicable to the applicable
Return Amount (rounded pursuant to Paragraph 13). Unless otherwise
specified in Paragraph 13, the "Return Amount" applicable to the Secured
Party for any Valuation Date will equal the amount by which:
(i) the Value as of that Valuation Date of all Posted Credit Support held
by the Secured Party exceeds
(ii) the Credit Support Amount.
"Credit Support Amount" means, unless otherwise specified in Paragraph 13, for
any Valuation Date (i) the Secured Party's Exposure for that Valuation Date plus
(ii) the aggregate of all Independent Amounts applicable to the Pledgor, if any,
minus (iii) all Independent Amounts applicable to the Secured Party, if any,
minus (iv) the Pledgor's Threshold; provided, however, that the Credit Support
Amount will be deemed to be zero whenever the calculation of Credit Support
Amount yields a number less than zero.
Paragraph 4. Conditions Precedent, Transfer Timing, Calculations and
Substitutions
(a) Conditions Precedent. Each Transfer obligation of the Pledgor under
Paragraphs 3 and 5 and of the Secured Party under Paragraphs 3, 4(d)(ii), 5 and
6(d) is subject to the conditions precedent that:
(i) no Event of Default, Potential Event of Default or Specified Condition
has occurred and is continuing with respect to the other party; and
(ii) no Early Termination Date for which any unsatisfied payment
obligations exist has occurred or been designated as the result of an
Event of Default or Specified Condition with respect to the other party.
(b) Transfer Timing. Subject to Paragraphs 4(a) and 5 and unless otherwise
specified, if a demand for the Transfer of Eligible Credit Support or Posted
Credit Support is made by the Notification Time, then the relevant Transfer will
be made not later than the close of business on the next Local Business Day; if
a demand is made after the Notification Time, then the relevant Transfer will be
made not later than the close of business on the second Local Business Day
thereafter.
(c) Calculations. All calculations of Value and Exposure for purposes of
Paragraphs 3 and 6(d) will be made by the Valuation Agent as of the Valuation
Time. The Valuation Agent will notify each party (or the other party, if the
Valuation Agent is a party) of its calculations not later than the Notification
Time on the Local Business Day following the applicable Valuation Date (or in
the case of Paragraph 6(d), following the date of calculation).
(d) Substitutions.
(i) Unless otherwise specified in Paragraph 13, upon notice to the Secured
Party specifying the items of Posted Credit Support to be exchanged, the
Pledgor may, on any Local Business Day, Transfer to the Secured Party
substitute Eligible Credit Support (the "Substitute Credit Support"); and
(ii) subject to Paragraph 4(a), the Secured Party will Transfer to the
Pledgor the items of Posted Credit Support specified by the Pledgor in its
notice not later than the Local Business Day following the date on which
the Secured Party receives the Substitute Credit Support, unless otherwise
specified in Paragraph 13 (the "Substitution Date"); provided that the
Secured Party will only be obligated to Transfer Posted Credit Support
with a Value as of the date of Transfer of that Posted Credit Support
equal to the Value as of that date of the Substitute Credit Support.
Paragraph 5. Dispute Resolution
If a party (a "Disputing Party") disputes (I) the Valuation Agent's calculation
of a Delivery Amount or a Return Amount or (II) the Value of any Transfer of
Eligible Credit Support or Posted Credit Support, then (1) the Disputing Party
will notify the other party and the Valuation Agent (if the Valuation Agent is
not the other party) not later than the close of business on the Local Business
Day following (X) the date that the demand is made under Paragraph 3 in the case
of (I) above or (Y) the date of Transfer in the case of (II) above, (2 subject
to Paragraph 4(a), the appropriate party will Transfer the undisputed amount to
the other party not later than the close of business on the Local Business Day
following (X) the date that the demand is made under Paragraph 3 in the case of
(I) above or (Y) the date of Transfer in the case of (II) above, (3 the parties
will consult with each other in an attempt to resolve the dispute and (4) if
they fail to resolve the dispute by the Resolution Time, then:
(i) In the case of a dispute involving a Delivery Amount or Return Amount,
unless otherwise specified in Paragraph 13, the Valuation Agent will
recalculate the Exposure and the Value as of the Recalculation Date by:
(A) utilizing any calculations of Exposure for the Transactions (or
Swap Transactions) that the parties have agreed are not in dispute;
(B) calculating the Exposure for the Transactions (or Swap
Transactions) in dispute by seeking four actual quotations at
mid-market from Reference Market-makers for purposes of calculating
Market Quotation, and taking the arithmetic average of those
obtained; provided that if four quotations are not available for a
particular Transaction (or Swap Transaction), then fewer than four
quotations may be used for that Transaction (or Swap Transaction);
and if no quotations are available for a particular Transaction (or
Swap Transaction), then the Valuation Agent's original calculations
will be used for that Transaction (or Swap Transaction); and
(C) utilizing the procedures specified in Paragraph 13 for
calculating the Value, if disputed, of Posted Credit Support.
(ii) In the case of a dispute involving the Value of any Transfer of
Eligible Credit Support or Posted Credit Support, the Valuation Agent will
recalculate the Value as of the date of Transfer pursuant to Paragraph 13.
Following a recalculation pursuant to this Paragraph, the Valuation Agent will
notify each party (or the other party, if the Valuation Agent is a party) not
later than the Notification Time on the Local Business Day following the
Resolution Time. The appropriate party will, upon demand following that notice
by the Valuation Agent or a resolution pursuant to (3) above and subject to
Paragraphs 4(a) and 4(b), make the appropriate Transfer.
Paragraph 6. Holding and Using Posted Collateral
(a) Care Of Posted Collateral. Without limiting the Secured Party's rights under
Paragraph 6(c), the Secured Party will exercise reasonable care to assure the
safe custody of all Posted Collateral to the extent required by applicable law,
and in any event the Secured Party will be deemed to have exercised reasonable
care if it exercises at least the same degree of care as it would exercise with
respect to its own property. Except as specified in the preceding sentence, the
Secured Party will have no duty with respect to Posted Collateral, including,
without limitation, any duty to collect any Distributions, or enforce or
preserve any rights pertaining thereto.
(b) Eligibility to Hold Posted Collateral; Custodians.
(i) General. Subject to the satisfaction of any conditions specified in
Paragraph 13 for holding Posted Collateral, the Secured Party will be
entitled to hold Posted Collateral or to appoint an agent (a "Custodian")
to hold Posted Collateral for the Secured Party. Upon notice by the
Secured Party to the Pledgor of the appointment of a Custodian, the
Pledgor's obligations to make any Transfer will be discharged by making
the Transfer to that Custodian. The holding of Posted Collateral by a
Custodian will be deemed to be the holding of that Posted Collateral by
the Secured Party for which the Custodian is acting.
(ii) Failure to Satisfy Conditions. If the Secured Party or its Custodian
fails to satisfy any conditions for holding Posted Collateral, then upon a
demand made by the Pledgor, the Secured Party will, not later than five
Local Business Days after the demand, Transfer or cause its Custodian to
Transfer all Posted Collateral held by it to a Custodian that satisfies
those conditions or to the Secured Party if it satisfies those conditions.
(iii) Liability. The Secured Party will be liable for the acts or
omissions of its Custodian to the same extent that the Secured Party would
be liable hereunder for its own acts or omissions.
(c) Use of Posted Collateral. Unless otherwise specified in Paragraph 13 and
without limiting the rights and obligations of the parties under Paragraphs 3,
4(d)(ii), 5, 6(d) and 8, if the Secured Party is not a Defaulting Party or an
Affected Party with respect to a Specified Condition and no Early Termination
Date has occurred or been designated as the result of an Event of Default or
Specified Condition with respect to the Secured Party, then the Secured Party
will, notwithstanding Section 9-207 of the New York Uniform Commercial Code,
have the right to:
(i) sell, pledge, rehypothecate, assign, invest, use, commingle or
otherwise dispose of, or otherwise use in its business any Posted
Collateral it holds, free from any claim or right of any nature whatsoever
of the Pledgor, including any equity or right of redemption by the
Pledgor; and
(ii) register any Posted Collateral in the name of the Secured Party, its
Custodian or a nominee for either.
For purposes of the obligation to Transfer Eligible Credit Support or Posted
Credit Support pursuant to Paragraphs 3 and 5 and any rights or remedies
authorized under this Agreement, the Secured Party will be deemed to continue to
hold all Posted Collateral and to receive Distributions made thereon, regardless
of whether the Secured Party has exercised any rights with respect to any Posted
Collateral pursuant to (i) or (ii) above.
(d) Distributions and Interest Amount.
(i) Distributions. Subject to Paragraph 4(a), if the Secured Party
receives or is deemed to receive Distributions on a Local Business Day, it
will Transfer to the Pledgor not later than the following Local Business
Day any Distributions it receives or is deemed to receive to the extent
that a Delivery Amount would not be created or increased by that Transfer,
as calculated by the Valuation Agent (and the date of calculation will be
deemed to be a Valuation Date for this purpose).
(ii) Interest Amount. Unless otherwise specified in Paragraph 13 and
subject to Paragraph 4(a), in lieu of any interest, dividends or other
amounts paid or deemed to have been paid with respect to Posted Collateral
in the form of Cash (all of which may be retained by the Secured Party),
the Secured Party will Transfer to the Pledgor at the times specified in
Paragraph 13 the Interest Amount to the extent that a Delivery Amount
would not be created or increased by that Transfer, as calculated by the
Valuation Agent (and the date of calculation will be deemed to be a
Valuation Date for this purpose). The Interest Amount or portion thereof
not Transferred pursuant to this Paragraph will constitute Posted
Collateral in the form of Cash and will be subject to the security
interest granted under Paragraph 2.
Paragraph 7. Events of Default
For purposes of Section 5(a)(iii)(l) of this Agreement, an Event of Default will
exist with respect to a party if:
(i) that party fails (or fails to cause its Custodian) to make, when due,
any Transfer of Eligible Collateral, Posted Collateral or the Interest
Amount, as applicable, required to be made by it and that failure
continues for two Local Business Days after notice of that failure is
given to that party;
(ii) that party fails to comply with any restriction or prohibition
specified in this Annex with respect to any of the rights specified in
Paragraph 6(c) and that failure continues for five Local Business Days
after notice of that failure is given to that party; or
(iii) that party fails to comply with or perform any agreement or
obligation other than those specified in Paragraphs 7(i) and 7(ii) and
that failure continues for 30 days after notice of that failure is given
to that party.
Paragraph 8. Certain Rights and Remedies
(a) Secured Party's Rights and Remedies. If at any time (1) an Event of Default
or Specified Condition with respect to the Pledgor has occurred and is
continuing or (2) an Early Termination Date has occurred or been designated as
the result of an Event of Default or Specified Condition with respect to the
Pledgor, then, unless the Pledgor has paid in full all of its Obligations that
are then due, the Secured Party may exercise one or more of the following rights
and remedies:
(i) all rights and remedies available to a secured party under applicable
law with respect to Posted Collateral held by the Secured Party;
(ii) any other rights and remedies available to the Secured Party under
the terms of Other Posted Support, if any;
(iii) the right to Set-off any amounts payable by the Pledgor with respect
to any Obligations against any Posted Collateral or the Cash equivalent of
any Posted Collateral held by the Secured Party (or any obligation of the
Secured Party to Transfer that Posted Collateral); and
(iv) the right to liquidate any Posted Collateral held by the Secured
Party through one or more public or private sales or other dispositions
with such notice, if any, as may be required under applicable law, free
from any claim or right of any nature whatsoever of the Pledgor, including
any equity or right of redemption by the Pledgor (with the Secured Party
having the right to purchase any or all of the Posted Collateral to be
sold) and to apply the proceeds (or the Cash equivalent thereof) from the
liquidation of the Posted Collateral to any amounts payable by the Pledgor
with respect to any Obligations in that order as the Secured Party may
elect.
Each party acknowledges and agrees that Posted Collateral in the form of
securities may decline speedily in value and is of a type customarily sold on a
recognized market, and, accordingly, the Pledgor is not entitled to prior notice
of any sale of that Posted Collateral by the Secured Party, except any notice
that is required under applicable law and cannot be waived.
(b) Pledgor's Rights and Remedies. If at any time an Early Termination Date has
occurred or been designated as the result of an Event of Default or Specified
Condition with respect to the Secured Party, then (except in the case of an
Early Termination Date relating to less than all Transactions (or Swap
Transactions) where the Secured Party has paid in full all of its obligations
that are then due under Section 6(e) of this Agreement):
(i) the Pledgor may exercise all rights and remedies available to a
pledgor under applicable law with respect to Posted Collateral held by the
Secured Party;
(ii) the Pledgor may exercise any other rights and remedies available to
the Pledgor under the terms of Other Posted Support, if any;
(iii) the Secured Party will be obligated immediately to Transfer all
Posted Collateral and the Interest Amount to the Pledgor; and
(iv) to the extent that Posted Collateral or the Interest Amount is not so
Transferred pursuant to (iii) above, the Pledgor may:
(A) Set-off any amounts payable by the Pledgor with respect to any
Obligations against any Posted Collateral or the Cash equivalent of
any Posted Collateral held by the Secured Party (or any obligation
of the Secured Party to Transfer that Posted Collateral); and
(B) to the extent that the Pledgor does not Set-off under (iv)(A)
above, withhold payment of any remaining amounts payable by the
Pledgor with respect to any Obligations, up to the Value of any
remaining Posted Collateral held by the Secured Party, until that
Posted Collateral is Transferred to the Pledgor.
(c) Deficiencies and Excess Proceeds. The Secured Party will Transfer to the
Pledgor any proceeds and Posted Credit Support remaining after liquidation,
Set-off and/or application under Paragraphs 8(a) and 8(b) after satisfaction in
full of all amounts payable by the Pledgor with respect to any Obligations; the
Pledgor in all events will remain liable for any amounts remaining unpaid after
any liquidation, Set-off and/or application under Paragraphs 8(a) and 8(b).
(d) Final Returns. When no amounts are or thereafter may become payable by the
Pledgor with respect to any Obligations (except for any potential liability
under Section 2(d) of this Agreement), the Secured Party will Transfer to the
Pledgor all Posted Credit Support and the Interest Amount, if any.
Paragraph 9. Representations
Each party represents to the other party (which representations will be deemed
to be repeated as of each date on which it, as the Pledgor, Transfers Eligible
Collateral) that:
(i) it has the power to grant a security interest in and lien on any
Eligible Collateral it Transfers as the Pledgor and has taken all
necessary actions to authorize the granting of that security interest and
lien;
(ii) it is the sole owner of or otherwise has the right to Transfer all
Eligible Collateral it Transfers to the Secured Party hereunder, free and
clear of any security interest, lien, encumbrance or other restrictions
other than the security interest and lien granted under Paragraph 2;
(iii) upon the Transfer of any Eligible Collateral to the Secured Party
under the terms of this Annex, the Secured Party will have a valid and
perfected first priority security interest therein (assuming that any
central clearing corporation or any third-party financial intermediary or
other entity not within the control of the Pledgor involved in the
Transfer of that Eligible Collateral gives the notices and takes the
action required of it under applicable law for perfection of that
interest); and
(iv) the performance by it of its obligations under this Annex will not
result in the creation of any security interest, lien or other encumbrance
on any Posted Collateral other than the security interest and lien granted
under Paragraph 2.
Paragraph 10. Expenses
(a) General. Except as otherwise provided in Paragraphs 10(b) and 10(c), each
party will pay its own costs and expenses in connection with performing its
obligations under this Annex and neither party will be liable for any costs and
expenses incurred by the other party in connection herewith.
(b) Posted Credit Support. The Pledgor will promptly pay when due all taxes,
assessments or charges of any nature that are imposed with respect to Posted
Credit Support held by the Secured Party upon becoming aware of the same,
regardless of whether any portion of that Posted Credit Support is subsequently
disposed of under Paragraph 6(c), except for those taxes, assessments and
charges that result from the exercise of the Secured Party's rights under
Paragraph 6(c).
(c) Liquidation/Application of Posted Credit Support. All reasonable costs and
expenses incurred by or on behalf of the Secured Party or the Pledgor in
connection with the liquidation and/or application of any Posted Credit Support
under Paragraph 8 will be payable, on demand and pursuant to the Expenses
Section of this Agreement, by the Defaulting Party or, if there is no Defaulting
Party, equally by the parties.
Paragraph 11. Miscellaneous
(a) Default Interest. A Secured Party that fails to make, when due, any Transfer
of Posted Collateral or the Interest Amount will be obligated to pay the Pledgor
(to the extent permitted under applicable law) an amount equal to interest at
the Default Rate multiplied by the Value of the items of property that were
required to be Transferred, from (and including) the date that Posted Collateral
or Interest Amount was required to be Transferred to (but excluding) the date of
Transfer of that Posted Collateral or Interest Amount. This interest will be
calculated on the basis of daily compounding and the actual number of days
elapsed.
(b) Further Assurances. Promptly following a demand made by a party, the other
party will execute, deliver, file and record any financing statement, specific
assignment or other document and take any other action that may be necessary or
desirable and reasonably requested by that party to create, preserve, perfect or
validate any security interest or lien granted under Paragraph 2, to enable that
party to exercise or enforce its rights under this Annex with respect to Posted
Credit Support or an Interest Amount or to effect or document a release of a
security interest on Posted Collateral or an Interest Amount.
(c) Further Protection. The Pledgor will promptly give notice to the Secured
Party of, and defend against, any suit, action, proceeding or lien that involves
Posted Credit Support Transferred by the Pledgor or that could adversely affect
the security interest and lien granted by it under Paragraph 2, unless that
suit, action, proceeding or lien results from the exercise of the Secured
Party's rights under Paragraph 6(c).
(d) Good Faith and Commercially Reasonable Manner. Performance of all
obligations under this Annex, including, but not limited to, all calculations,
valuations and determinations made by either party, will be made in good faith
and in a commercially reasonable manner.
(e) Demands and Notices. All demands and notices made by a party under this
Annex will be made as specified in the Notices Section of this Agreement, except
as otherwise provided in Paragraph 13.
(f) Specifications of Certain Matters. Anything referred to in this Annex as
being specified in Paragraph 13 also may be specified in one or more
Confirmations or other documents and this Annex will be construed accordingly.
Paragraph 12. Definitions as Used in this Annex:
As used in this Annex:-
"Cash" means the lawful currency of the United States of America.
"Credit Support Amount" has the meaning specified in Paragraph 3.
"Custodian" has the meaning specified in Paragraphs 6(b)(i) and 13.
"Delivery Amount" has the meaning specified in Paragraph 3(a).
"Disputing Party" has the meaning specified in Paragraph 5.
"Distributions" means with respect to Posted Collateral other than Cash, all
principal, interest and other payments and distributions of cash or other
property with respect thereto, regardless of whether the Secured Party has
disposed of that Posted Collateral under Paragraph 6(c). Distributions will not
include any item of property acquired by the Secured Party upon any disposition
or liquidation of Posted Collateral or, with respect to any Posted Collateral in
the form of Cash, any distributions on that collateral, unless otherwise
specified herein.
"Eligible Collateral" means, with respect to a party, the items, if any,
specified as such for that party in Paragraph 13.
"Eligible Credit Support" means Eligible Collateral and Other Eligible Support.
"Exposure" means for any Valuation Date or other date for which Exposure is
calculated and subject to Paragraph 5 in the case of a dispute, the amount, if
any, that would be payable to a party that is the Secured Party by the other
party (expressed as a positive number) or by a party that is the Secured Party
to the other party (expressed as a negative number) pursuant to Section
6(e)(ii)(2)(A) of this Agreement as if all Transactions (or Swap Transactions)
were being terminated as of the relevant Valuation Time; provided that Market
Quotation will be determined by the Valuation Agent using its estimates at
mid-market of the amounts that would be paid for Replacement Transactions (as
that term is defined in the definition of "Market Quotation").
"Independent Amount" means, with respect to a party, the amount specified as
such for that party in Paragraph 13; if no amount is specified, zero.
"Interest Amount" means, with respect to an Interest Period, the aggregate sum
of the amounts of interest calculated for each day in that Interest Period on
the principal amount of Posted Collateral in the form of Cash held by the
Secured Party on that day, determined by the Secured Party for each such day as
follows:
(x) the amount of that Cash on that day; multiplied by
(y) the Interest Rate in effect for that day; divided by
(z) 360.
"Interest Period" means the period from (and including) the last Local Business
Day on which an Interest Amount was Transferred (or, if no Interest Amount has
yet been Transferred, the Local Business Day on which Posted Collateral in the
form of Cash was Transferred to or received by the Secured Party) to (but
excluding) the Local Business Day on which the current Interest Amount is to be
Transferred.
"Interest Rate" means the rate specified in Paragraph 13.
"Local Business Day", unless otherwise specified in Paragraph 13, has the
meaning specified in the Definitions Section of this Agreement, except that
references to a payment in clause (b) thereof will be deemed to include a
Transfer under this Annex.
"Minimum Transfer Amount" means, with respect to a party, the amount specified
as such for that party in Paragraph 13; if no amount is specified, zero.
"Notification Time" has the meaning specified in Paragraph 13.
"Obligations" means, with respect to a party, all present and future obligations
of that party under this Agreement and any additional obligations specified for
that party in Paragraph 13.
"Other Eligible Support" means, with respect to a party, the items, if any,
specified as such for that party in Paragraph 13.
"Other Posted Support" means all Other Eligible Support Transferred to the
Secured Party that remains in effect for the benefit of that Secured Party.
"Pledgor" means either party, when that party (i) receives a demand for or is
required to Transfer Eligible Credit Support under Paragraph 3(a) or (ii) has
Transferred Eligible Credit Support under Paragraph 3(a).
"Posted Collateral" means all Eligible Collateral, other property,
Distributions, and all proceeds thereof that have been Transferred to or
received by the Secured Party under this Annex and not Transferred to the
Pledgor pursuant to Paragraph 3(b), 4(d)(ii) or 6(d)(i) or released by the
Secured Party under Paragraph 8. Any Interest Amount or portion thereof not
Transferred pursuant to Paragraph 6(d)(ii) will constitute Posted Collateral in
the form of Cash.
"Posted Credit Support" means Posted Collateral and Other Posted Support.
"Recalculation Date" means the Valuation Date that gives rise to the dispute
under Paragraph 5; provided, however, that if a subsequent Valuation Date occurs
under Paragraph 3 prior to the resolution of the dispute, then the
"Recalculation Date" means the most recent Valuation Date under Paragraph 3.
"Resolution Time" has the meaning specified in Paragraph 13.
"Return Amount" has the meaning specified in Paragraph 3(b).
"Secured Party" means either party, when that party (i) makes a demand for or is
entitled to receive Eligible Credit Support under Paragraph 3(a) or (ii) holds
or is deemed to hold Posted Credit Support.
"Specified Condition" means, with respect to a party, any event specified as
such for that party in Paragraph 13.
"Substitute Credit Support" has the meaning specified in Paragraph 4(d)(i).
"Substitution Date" has the meaning specified in Paragraph 4(d)(ii).
"Threshold" means, with respect to a party, the amount specified as such for
that party in Paragraph 13; if no amount is specified, zero.
"Transfer" means, with respect to any Eligible Credit Support, Posted Credit
Support or Interest Amount, and in accordance with the instructions of the
Secured Party, Pledgor or Custodian, as applicable:
(i) in the case of Cash, payment or delivery by wire transfer into one
or more bank accounts specified by the recipient;
(ii) in the case of certificated securities that cannot be paid or
delivered by book-entry, payment or delivery in appropriate physical
form to the recipient or its account accompanied by any duly
executed instruments of transfer, assignments in blank, transfer tax
stamps and any other documents necessary to constitute a legally
valid transfer to the recipient;
(iii) in the case of securities that can be paid or delivered by
book-entry, the giving of written instructions to the relevant
depository institution or other entity specified by the recipient,
together with a written copy thereof to the recipient, sufficient if
complied with to result in a legally effective transfer of the
relevant interest to the recipient; and
(iv) in the case of Other Eligible Support or Other Posted Support, as
specified in Paragraph 13.
"Valuation Agent" has the meaning specified in Paragraph 13.
"Valuation Date" means each date specified in or otherwise determined pursuant
to Paragraph 13.
"Valuation Percentage" means, for any item of Eligible Collateral, the
percentage specified in Paragraph 13.
"Valuation Time" has the meaning specified in Paragraph 13.
"Value" means for any Valuation Date or other date for which Value is calculated
and subject to Paragraph 5 in the case of a dispute, with respect to:
(i) Eligible Collateral or Posted Collateral that is:
(A) Cash, the amount thereof, and
(B) A security, the bid price obtained by the Valuation Agent
multiplied by the applicable Valuation Percentage, if any;
(ii) Posted Collateral that consists of items that are not specified as
Eligible Collateral, zero; and
(iii) Other Eligible Support and Other Posted Support, as specified in
Paragraph 13.
Paragraph 13. Elections and Variables
(a) Security Interest for "Obligations". The term "Obligations" as used in
this Annex includes the following additional obligations with respect to
Party A and Party B: None.
(b) Credit Support Obligations.
(i) "Delivery Amount" ,"Return Amount" and "Credit Support Amount" each
has the meaning specified in Paragraph 3;
(ii) Eligible Collateral. The following items will qualify as "Eligible
Collateral" for Party A:
------------------------------------------------------------
Valuation
Eligible Collateral Party A Percentage
------------------------------------------------------------
(A) Cash [X] 100%
(B) Treasury Securities with a remaining [X] 97%
maturity of 52 weeks or less
(C) Treasury Securities with a remaining [X] 93%
maturity of more than 52 weeks but no
more than 5 years
(D) Treasury Securities with a remaining [X] 92%
maturity of more than 5 years but no
more than 10 years
(E) Treasury Securities with a remaining [X] 88%
maturity of more than 10 years but no
more than 30 years
(F) Agency Notes with a remaining maturity [X] 87%
of no more than 15 years
(G) Agency Notes with a remaining maturity [X] 86%
of more than 15 years but no more than
30 years
(H) Commercial Paper rated "A-1+" by S&P [X] [100]%
(I) Commercial Paper rated "A-1" by S&P with [X] [98]%
a remaining maturity of 180 days or less
(J) Commercial Paper rated "A-1" by S&P with [X] [94]%
a remaining maturity of more than 180
days but no more than 360 days
(K) Corporate Bonds with a long-term, [X] 66%
senior, unsecured, unsubordinated debt
rating as to principal and interest of
"AAA" by S&P other than the Corporate
Bonds rated "AAA" by S&P in Party B's
portfolio; provided however that such
Corporate Bonds shall not have a
remaining maturity of more than 30 years
(iii) Other Eligible Support: Not applicable.
(iv) Thresholds.
(A) "Independent Amount" means with respect to each party, zero.
(B) "Threshold" means with respect to Party A: Infinite; provided,
however if Party A is downgraded (as described in Part 1(i) of
the Schedule) and is required to post collateral pursuant to
the terms of Part 1(i), then the "Threshold" with respect to
Party A, shall be zero (unless otherwise agreed in writing by
the Rating Agencies);
"Threshold" means with respect to Party B: Infinite.
(C) "Minimum Transfer Amount" means with respect to Party A: USD
100,000; and with respect to Party B: USD 100,000; provided,
however, that if such party is a Defaulting Party at the
time, "Minimum Transfer Amount" shall mean zero with respect
to such party.
(D) Rounding. The Delivery Amount and the Return Amount will not
be rounded up or down.
(c) Valuation and Timing.
(i) "Valuation Agent" means Party A.
(ii) "Valuation Date" means each New York Banking Day (as defined in the
2000 ISDA Definitions as published by the International Swaps and
Derivatives Association, Inc. ("ISDA") without regard to any
amendment after the date hereof) (the "ISDA Definitions").
(iii) "Valuation Time" means the close of business in New York on the New
York Banking Day before the Valuation Date or date of calculation,
as applicable, or any time on the Valuation Date or date of
calculation, as applicable; provided that the calculations of Value
and Exposure will be made as of approximately the same time on the
same date.
(iv) "Notification Time" means 1:00 p.m., New York time, on a Local
Business Day.
(d) Conditions Precedent and Secured Party's Rights and Remedies. The
following Termination Events will be a "Specified Condition" for the party
specified (that party being the Affected Party of the Termination Event
occurs with respect to that party): Not Applicable.
(e) Substitution.
(i) "Substitution Date" has the meaning specified in Paragraph 4(d)(ii).
(ii) Consent. The Pledgor need not obtain the Secured Party's consent for
any substitution pursuant to Paragraph 4(d).
(f) Dispute Resolution.
(i) "Resolution Time" means 1:00 p.m., New York time, on the Local
Business Day following the date on which the notice of the dispute
is given under Paragraph 5.
(ii) Value. For the purpose of Paragraphs 5(i)(C) and 5(ii), the Value of
Posted Credit Support or of any Transfer of Eligible Credit Support
or Posted Credit Support, as the case may be, will be calculated by
the Valuation Agent in accordance with standard market practice
using third party sources (such as, by way of example only,
Bloomberg or Reuters) where available.
(iii) Alternative. The provisions of Paragraph 5 will apply.
(g) Holding and Using Posted Collateral.
(i) Eligibility to Hold Posted Collateral; Custodian.
Party B and its Custodian will be entitled to hold Posted Collateral
pursuant to Paragraph 6(b); provided that the following conditions
applicable to it are satisfied:
(A) Party B is not a Defaulting Party.
(B) Posted Collateral may be held only in the following
jurisdictions: the United States of America.
Initially, the Custodian for Party B is: the Paying Agent (in
accordance with the Pooling and Servicing Agreement).
(ii) Use of Posted Collateral. The provisions of Paragraph 6(c) will
apply.
(h) Distributions and Interest Amount.
(i) "Interest Rate". The "Interest Rate" shall be the rate actually
earned by the Custodian on the Posted Collateral as from time to
time in effect and the Custodian shall hold all Posted Collateral in
the form of Cash in an interest bearing overnight account.
(ii) Transfer of Interest Amount. The Transfer of the Interest Amount
will be made on the last Local Business Day of each calendar month
and on any Local Business Day that Posted Collateral in the form of
cash in the relevant currency is Transferred to the Pledgor pursuant
to Paragraph 3(b).
(iii) Alternative to Interest Amount. The provisions of Paragraph 6(d)(ii)
will apply.
(i) Other Eligible Support and Other Posted Support. "Value" and "Transfer"
with respect to Other Eligible Support and Other Posted Support each
means: Not applicable.
(j) Demands and Notices
All demands, specifications and notices to Party A under this Annex will
be made to:
Xxxxxx Xxxxxxx Capital Services Inc.
0000 Xxxxxxxx, 0xx Xxxxx--XXX Xxxxxxxxxxx
Xxx Xxxx, XX 00000
Attn: FID Collateral Manager
Telephone No.: (212) 761 - 0877
Facsimile No.: (212) 507- 4949
Email: xxxxxxxxx@xxxxxxxxxxxxx.xxx
and all demands, specifications and notices to Party B under this Annex
will be made to:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX, 00000-0000
Attention: Corporate Trust Services - MSCI 2007-IQ16
Telephone: 000-000-0000
Fax: 000-000-0000
Email: xxx.x.xxxxxxxxx@xxxxxxxxxx.xxx
provided that any demand, specification or notice may be made by telephone
("Telephone Notice") between employees of each party if such Telephone
Notice is confirmed by a subsequent written instruction (which may be
delivered via facsimile or email) by the close of business on the same day
that such Telephone Notice is given.
(k) Addresses for Transfers.
Party A:
Cash: CITIBANK, New York
ABA No.: 021 000 089
Account No.: 3053 - 9883
Reference: MSCS Collateral
Treasury Securities
and Agency Notes: Bank of New York, New York/Xxxxxx Xxxxxxx
ABA No.: 000000000
Other Forms of Eligible Collateral: As provided by Party A.
Party B:
The Depository Trust Clearing Corp. (DTCC)DTCC Participant #[ ]
Institution ID #[ ] Agent ID #[ ]Ref Trust A/C #[_]
Security Trade Cash Wire Instructions:
Xxxxx Fargo Bank, N.A.
ABA: 000-000-000
Account: 0000000000
FBO: SAS Clearing
For Further Credit: 53185900
Ref: MSCI 2007-IQ16
Attention: Corporate Trust Services (CMBS)
410-884-2000
(l) Other Provisions.
(i) Notwithstanding any other provision in this Agreement to the
contrary, no full or partial failure to exercise and no delay in
exercising, on the part of Party A or Party B, any right, remedy,
power or privilege permitted hereunder shall operate in any way as a
waiver thereof by such party, including without limitation any
failure to exercise or any delay in exercising to any or to the full
extent of such party's rights with respect to transfer timing
pursuant to Paragraph 4(b), regardless of the frequency of such
failure or delay.
(ii) In all cases, in order to facilitate calculation of the Delivery
Amount and the Return Amount for a particular Valuation Date in
accordance with Paragraph 3 of this Annex:
(A) Eligible Collateral;
(B) Exposure; and
(C) Posted Collateral
shall each be expressed in US Dollars. If any of these items are
expressed in a currency other than US Dollars, then they shall be
converted into US Dollar amounts at the spot exchange rate
determined by the Valuation Agent on that Valuation Date.
(iii) Paragraph 3(b) is hereby amended by (A) adding the following after
the phrase "(rounded pursuant to Paragraph 13)" in the fifth line
thereof: "provided however, that the Secured Party will, upon the
Pledgor's request, Transfer to the Pledgor all Posted Credit Support
if the Credit Support Amount is zero," and (B) amending clause (i)
of the definition of "Credit Support Amount" by deleting such clause
and replacing it with "(i) the sum of (x) the greater of $0 and
Exposure that would be payable to the Secured Party for the
Valuation Date and (y) the product of the Volatility Buffer (as
defined in Paragraph 13 hereto) and the Notional Amount."
(iii) Form of Annex. The parties hereby agree that the text of the body of
this Annex is intended to be the printed form of 1994 ISDA Credit
Support Annex (Bilateral Form - ISDA Agreements Subject to New York
Law Only version) as published and copyrighted by the International
Swaps and Derivatives Association, Inc.
(m) Agreement as to Single Secured Party and Pledgor. Party A and Party B
agree that, notwithstanding anything to the contrary in the recital to
this Annex, Paragraph 1(b) or Paragraph 2 or the definitions of Paragraph
12, (a) the term "Secured Party" as used in this Annex shall mean only
Party B, (b) the term "Pledgor" as used in this Annex shall mean only
Party A, (c) only Party A makes the pledge and grant in Paragraph 2, the
acknowledgement in the final sentence of Paragraph 8(a) and the
representations in paragraph 9 and (d) only Party A will be required to
make Transfers of Eligible Credit Support hereunder. Party A and Party B
further agree that, notwithstanding anything to the contrary in the
recital to this Annex or Paragraph 7, this Annex will constitute a Credit
Support Document only with respect to Party A, and the Events of Default
in Paragraph 7 will apply to Party A only.
(n) Additional Definitions
"Agency Notes" means U.S. Dollar-denominated fixed rate,
non-amortising, non-mortgagebacked, senior debt securities of
fixed maturity, rated AAA by S&P issued by any of the Federal Home
Loan Banks (including their consolidated obligations issued
through the Office of Finance of the Federal Home Loan Bank
System), the Federal National Mortgage Association, the Federal
Home Loan Mortgage Corporation or the Federal Farm Credit Bank.
"Commercial Paper" means U.S. Dollar-denominated commercial paper
issued by a corporation, finance company, partnership or limited
liability company.
"Corporate Bonds" means U.S. Dollar-denominated debt securities,
which provides for periodic interest payments in cash over the
life of the security and principal payments upon maturity or
redemption, as applicable, with a remaining maturity of 30 years
or less issued by an entity other than an Agency or the U.S.
Treasury Department.
"Treasury Securities" means U.S. Dollar-denominated senior debt
securities of the United States of America issued by the U.S.
Treasury Department and backed by the full faith and credit of the
United States of America.
"Volatility Buffer" shall be the percentage applicable to the
credit rating of Party A by S&P as set forth in the table below:
Credit Rating of Maturities Maturities Maturities
Credit Support Provider up to 5 greater than 5 greater than
of Party A by S&P: Years years and up 10 years
to 10 years
"A-1" or higher or, if no 0.00 0.00 0.00
short term rating from S&P
exists, the long-term rating
from S&P is at least "Xx"
"X-0" 3.25% 4.00% 4.75%
"A-3" 4.00% 5.00% 6.25%
"BB+" or lower 4.50% 6.75% 7.50%
IN WITNESS WHEREOF, the parties have executed this Credit Support
Annex by their duly authorized officers as of the date hereof.
XXXXXX XXXXXXX CAPITAL SERVICES INC.
By: /s/ Xxxxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Authorized Signatory
XXXXXX XXXXXXX CAPITAL I TRUST 2007-IQ16
(A New York common law trust)
By: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
not in its individual capacity but
solely in its capacity as Paying Agent
on behalf of Xxxxxx Xxxxxxx Capital I
Trust 2007-1Q16 pursuant to the Pooling
and Servicing Agreement
By: /s/ Xxx Xxxxxxxxx
---------------------------------------
Name: Xxx Xxxxxxxxx
Title: Vice President
[LETTERHEAD OF XXXXXX XXXXXXX]
November 29, 2007
Xxxxxx Xxxxxxx Capital I Trust
2007-IQ16 c/o Wells Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX, 00000-0000
Ladies and Gentlemen:
In consideration of that certain ISDA Master Agreement dated as of
November 29, 2007 between Xxxxxx Xxxxxxx Capital Services Inc., a Delaware
corporation (hereinafter "MSCS") and Xxxxxx Xxxxxxx Capital t Trust 2007-IQ16
(hereinafter "Counterparty") (such ISDA Master Agreement, together with each
Confirmation exchanged between the parties pursuant thereto, hereinafter the
"Agreement"), Xxxxxx Xxxxxxx, a Delaware corporation (hereinafter "MS"),
hereby irrevocably and unconditionally guarantees to Counterparty, with
effect from the date of the Agreement, the due and punctual payment of all
amounts payable by MSCS under the Agreement when the same shall become due
and payable, whether on Scheduled Payment Dates, upon demand, upon
declaration of termination or otherwise, in accordance with the terms of the
Agreement and giving effect to any applicable grace period. Upon failure of
MSCS punctually to pay any such amounts, and upon written demand by
Counterparty to MS at its address set forth in the signature block of this
Guarantee (or to such other address as MS may specify in writing), MS agrees
to pay or cause to be paid such amounts; provided that delay by Counterparty
in giving such demand shall in no event affect MS's obligations under this
Guarantee.
MS hereby agrees that its obligations hereunder shall be unconditional
and will not be discharged except by complete payment of the amounts payable
unoer the Agreement, irrespective of any claim as to the Agreement's
validity, regularity or enforceability or the lack of authority of MSCS to
execute or deliver the Agreement; or any change in or amendment to the
Agreement; or any waiver or consent by Counterparty with respect to any
provisions thereof; or the absence of any action to enforce the Agreement or
the recovery of any judgment against MSCS or of any action to enforce a
judgment against MSCS under the Agreement; or any similar circumstance which
might otherwise constitute a legal or equitable discharge or defense of a
guarantor generally. MS hereby waives diligence, presentment, demand on MSCS
for payment or otherwise (except as provided hereinabove), filing of claims,
requirement of a prior proceeding against MSCS and protest or notice, except
as provided for in the Agreement with respect to amounts payable by MSCS. If
at any time payment under the Agreement is rescinded or must be otherwise
restored or returned by Counterparty upon the insolvency, bankruptcy or
reorganization of MSCS or MS or otherwise, MS's obligations hereunder with
respect to such payment shall be reinstated upon such restoration or return
being made by Counterparty.
MS represents to Counterparty as of the date hereof, which
representations will be deemed to be repeated by MS on each date on which a
Transaction is entered into, that:
(1) it is duly organized and validly existing under the laws of the
jurisdiction of its incorporation and has full power and legal right to
execute and deliver this Guarantee and to perform the provisions of this
Guarantee on its part to be performed;
(2) its execution, delivery and performance of this Guarantee have been
and remain duly authorized by all necessary corporate action and do not
contravene any provision of its certificate of incorporation or by-laws or
any law, regulation or contractual restriction binding on it or its assets;
(3) all consents, authorizations, approvals and clearances (including,
without limitation, any necessary exchange control approval) and
notifications, reports and registrations requisite for its due execution,
delivery and performance of this Guarantee have been obtained from or, as the
case may be, filed with the relevant governmental authorities having
jurisdiction and remain in full force and effect and all conditions thereof
have been duly complied with and no other action by, and no notice to or
filing with, any governmental authority having jurisdiction is required for
such execution, delivery or performance; and
(4) this Guarantee is its legal, valid and binding obligation
enforceable against it in accordance with its terms except as enforcement
hereof may be limited by applicable bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights or by
general equity principles.
By accepting this Guarantee and entering into the Agreement,
Counterparty agrees that MS shall be subrogated to all rights of Counterparty
against MSCS in respect of any amounts paid by MS pursuant to this Guarantee,
provided that MS shall be entitled to enforce or to receive any payment
arising out of or based upon such right of subrogation only to the extent
that it has paid all amounts payable by MSCS under the Agreement.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York. All capitalized terms not otherwise
defined herein shall have the respective meanings assigned to them in the
Agreement.
XXXXXX XXXXXXX
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
Address: 0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Treasurer
Fax No.: 000-000-0000
Phone: (000) 000-0000
SECRETARY'S CERTIFICATE
I, Xxxxx X. Xxxxxx, a duly elected and acting Assistant Secretary of
Xxxxxx Xxxxxxx, a corporation organized and existing under the laws of the State
of Delaware (the "Corporation"), certify as follows:
(1) Xxxxx X. Xxxx is the duly elected Treasurer and Xxxxxxx X.X. Xxx,
Xxxx X. Xxxxxxx and Xxxxxxx X. Xxxxx are duly elected Assistant Treasurers
of the Corporation; and
(2) Pursuant to Section 7.01 of the Bylaws of the Corporation and
resolutions adopted by a Unanimous Consent of Directors in Lieu of a
Meeting, dated as of May 31, 1997, both of which are attached as an
exhibit, the Treasurer and the Assistant Treasurers are authorized to
enter into agreements and other instruments on behalf of the Corporation;
and
(3) Pursuant to the attached Delegation of Authority executed by the
Treasurer of the Corporation as of August 13, 2007, Xxxxxxxxx X. Xxxxxx
and Xxxxx X. Xxxxxx are each authorized to sign, on behalf of the
Corporation, any and all guarantees, loan agreements, keepwells and
comfort letters of the Corporation, including any letters, notices,
agreements or related documents to give effect to such guarantees, loan
agreements, keepwells and comfort letters; and
(4) The signatures of Xxxxxxxxx X. Xxxxxx, Xxxxxxx X.X. Xxx, Xxxxx X.
Xxxxxx, Xxxx X. Xxxxxxx, Xxxxxxx X. Xxxxx and Xxxxx X. Xxxx appearing on
the attached signatory list are copies of their genuine signatures.
IN WITNESS WHEREOF, I have hereunto set my name and affixed the seal
of the Corporation as of the 14th day of November, 2007.
/s/ Xxxxx X. Xxxxxx
------------------------
Xxxxx X. Xxxxxx
Assistant Secretary
EXHIBIT
XXXXXX XXXXXXX
Section 7.01 of the Bylaws
SECTION 7.0l. Contracts. Except as otherwise required by law, the Amended
and Restated Certificate of Incorporation or these Amended and Restated Bylaws,
any contracts or other instruments may be executed and delivered in the name and
on the behalf of the Corporation by such officer or officers of the Corporation
as the Board of Directors may from time to time direct. Such authority may he
general or confined to specific instances as the Board may determine. Subject to
the control and direction of the Board of Directors, the Chairman of the Board,
the President, the Chief Financial Officer, the Chief Risk Officer, the Chief
Legal Officer and the Treasurer may enter into, execute, deliver and amend
bonds, promissory notes, contracts, agreements, deeds, leases, guarantees,
loans, commitments, obligations, liabilities and other instruments to be made or
executed for or on behalf of the Corporation. Subject to any restrictions
imposed by the Board of Directors, such officers of the Corporation may delegate
such powers to others under his or her jurisdiction, it being understood,
however, that any such delegation of power shall not relieve such officer of
responsibility with respect to the exercise of such delegated power.
Resolution adopted by a Unanimous Consent of
Directors in Lieu of a Meeting, dated as of May 31, 1997
RESOLVED FURTHER, that the Treasurer shall have charge and custody
of, and be responsible for, all funds and securities of the Corporation and
shall be authorized to deposit all such funds in the name of the
Corporation in banks or other depositories. in addition, the Treasurer
shall perform all other necessary acts and duties in connection with the
financial affairs of the Corporation, shall generally perform all duties
appertaining to the office of treasurer of a corporation and shall perform
such other duties and have such other powers as may be prescribed by the
Board, subject to the supervision of the Chief Financial Officer; and
RESOLVED FURTHER, that the Assistant Treasurer, if any, or, if there
shall be more than one, the Assistant Treasurers, shall, under the
supervision of the Treasurer, perform the duties and exercise the powers of
an assistant treasurer and, in the absence or disability of the Treasurer,
perform the duties and exercise the powers of the Treasurer. In addition,
each Assistant Treasurer is authorized to enter into, execute, deliver and
amend on behalf of the Corporation any and all letters of credit,
uncommitted short-term credit obligations and short-term promissory notes
(as defined by generally accepted accounting principles), such
authorization to cease automatically upon termination of employment with
the Corporation.
[LETTERHEAD OF XXXXXX XXXXXXX]
XXXXXX XXXXXXX
Delegation of Authority
I, Xxxxx X. Xxxx, the Treasurer of Xxxxxx Xxxxxxx (the
"Corporation"), hereby delegate to Xxxxxxxxx Xxxxxx and Xxxxx Xxxxxx, each
of whom is an officer off Xxxxxx Xxxxxxx & Co. Incorporated, the authority
to sign severally, upon approval from and under the supervision of an
Assistant Treasurer of the Corporation, any and all guarantees, loan
agreements, keepwells and comfort letters of the Corporaton, including
any letters, notices, agreements or related documents to give effect to
such guarantees, loan agreements, keepwells and comfort letters. Each
authorization shall cease automatically upon such individual's termination
of employment with any affiliate of the Corporation.
This Delegation supersedes all previous Delegations in connection
xxxx the authority notedabove.
IN WITNESS WHEREOF, I have neretzito set my name as of the 13th
day of August 2007.
/s/ Xxxxx X. Xxxx
----------------------------
Xxxxx X. Xxxx
Treasurer
Specimen Signatures
XXXXXXXXX X. XXXXXX /s/ XXXXXXXXX X. XXXXXX
XXXXXXX X.X. XXX /s/ XXXXXXX X.X. XXX
XXXXX X. XXXXXX /S/ XXXXX X. XXXXXX
XXXX X. XXXXXXX /S/ XXXX X. XXXXXXX
XXXXXXX X. XXXXX /S/ XXXXXXX X. XXXXX
XXXXX X. XXXX /S/ XXXXX X. XXXX
