Guarantee
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Swiss
Reinsurance Company
Mythenquai
50/60
P.O.
Box
8022
Zurich
Switzerland
Telephone
000 000 0000
Fax
000 000 0000
xxx.xxxxxxx.xxx
August
31, 2007
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To:
U.S.
Bank, National Association (the
“Beneficiary”), not in its individual capacity, but solely as trustee on behalf
of the Xxxxxx XS Trust Mortgage Pass-Through Trust Certificates, Series 2007-16N
(the “Rated Securities”)
1. The
undersigned, SWISS REINSURANCE COMPANY, a Swiss company (the "Guarantor"),
hereby absolutely and unconditionally guarantees the prompt payment as and
when
due of all obligations of its indirect, wholly-owned subsidiary SWISS RE
FINANCIAL PRODUCTS CORPORATION, a Delaware corporation ("THE GUARANTEED
SUBSIDIARY") under, in connection with or ancillary to an ISDA Master Agreement,
the Schedule, the Interest Rate Cap Confirmation (#1864820), the Interest Rate
Swap Confirmation (#1864746) and the Credit Support Annex, each dated as of
August 31, 2007 between the Beneficiary and THE GUARANTEED SUBSIDIARY as amended
or restated from time to time (the “Agreements”) which support the issuance of
the Rated Securities. In this Guarantee these obligations are referred to as
the
“Guaranteed Obligations”. This Guarantee is given solely for the benefit of, and
is enforceable only by, the Beneficiary or any trustee as assignee of the
Beneficiary to which this Guarantee has been validly assigned in accordance
with
applicable law and who is acting as trustee for the investors in the Rated
Securities.
2. This
Guarantee constitutes a Guarantee of payment and not of collection and is not
conditional or contingent upon any attempts to collect from, or pursue or
exhaust any rights or remedies against, THE GUARANTEED SUBSIDIARY. A demand
for
payment hereunder may at the Beneficiary’s option be made in writing addressed
to the Chief Financial Officer of the Guarantor. This Guarantee is not however
dependent in any way on the manner of the demand for payment. Delay in making
a
claim will not affect the Guarantor’s obligations under this Guarantee unless
the relevant legal limitation period has expired.
3. This
Guarantee constitutes, and is intended by the Guarantor to constitute, an
unlimited non-accessory undertaking („unbeschränkte, nicht
akzessorische Verpflichtung“) within the meaning of Article 111 of the Swiss
Code of Obligations (‚CO‘) and is not a mere surety („Bürgschaft“) within the
meaning of Article 492 et seq of the CO.
4. Notwithstanding
any reference to the obligations of THE GUARANTEED SUBSIDIARY, the Guarantor’s
obligations under this Guarantee are its absolute and independent obligations
as
a primary obligor. Payment of a claim hereunder is required as soon as the
Guaranteed Obligations are due and payable.
5. To
the
extent that any event or circumstance would give rise to any legal or equitable
discharge, defence or other rights of the Guarantor under this Guarantee, but
which event or circumstance would not give rise to any discharge, defence or
rights of THE GUARANTEED SUBSIDIARY under the Agreements, the Guarantor hereby
fully waives, subject to paragraph 7 below, such discharge, defence, or rights
and the Guarantor’s liability hereunder shall continue as if such event or
circumstance had not arisen.
6. The
Guarantor further agrees, subject to paragraph 7 below, that to the extent
that
any event or circumstance gives rise to any legal or equitable discharge,
defence or other rights available to both the Guarantor under the Guarantee
and
THE GUARANTEED SUBSIDIARY under the Agreements, the Guarantor hereby agrees
to
waive such discharge, defence or other rights against the Beneficiary, until
such time as all the Guaranteed Obligations in relation to the same event or
circumstance have been fully met as required to protect investors in the Rated
Securities.
7. Notwithstanding
any other provision of this Guarantee, the Guarantor will have the right, prior
to making any payment under this Guarantee, to (a) assert such rights of offset
as are set forth in the Agreements to the extent that such rights relate to
amounts due and payable by the Beneficiary to THE GUARANTEED SUBSIDIARY and
not
to amounts which are subject to dispute; and (b) defend manifestly fraudulent
claims under this Guarantee made by the Beneficiary.
8. This
Guarantee will continue in full force and effect in relation to all Guaranteed
Obligations until all the Guaranteed Obligations have been satisfied in full.
For the avoidance of doubt, all Guaranteed Obligations entered into by THE
GUARANTEED SUBSIDIARY during the term of this Guarantee shall be honoured in
accordance with this Guarantee and shall be binding on the Guarantor and its
successors and assigns. This Guarantee may be amended only as necessary to
reflect changes to the Guaranteed Obligations which are validly agreed to by
the
Beneficiary in accordance with the terms of the Rated Securities, including
any
requirement to obtain the consent of some or all of the investors in the Rated
Securities.
9. If
any
payment by THE GUARANTEED SUBSIDIARY is avoided, recaptured or reduced as a
result of insolvency or any similar event affecting creditors rights generally
having occurred in respect of THE GUARANTEED SUBSIDIARY, the Guarantor’s
liability under this Guarantee shall continue as if the avoided, recaptured
or
reduced payment had not occurred.
10. Upon
payment by the Guarantor to the Beneficiary of any amount due under this
Guarantee, the Guarantor shall be entitled to require the assignment to it
of
the rights of the Beneficiary against THE GUARANTEED SUBSIDIARY to the extent
satisfied by such payment, and the Beneficiary will take at the Guarantor's
expense such steps as the Guarantor may reasonably require to implement such
assignment. The Guarantor shall not exercise any rights against THE GUARANTEED
SUBSIDIARY which it may acquire in consequence of such payment and assignment
unless and until all the Guaranteed Obligations to the Beneficiary shall have
been paid in full.
11. This
Guarantee is governed and will be construed in accordance with Swiss law.
The
exclusive place of jurisdiction for any legal proceeding hereunder shall be
Zurich, Switzerland.
IN
WITNESS WHEREOF, the Guarantor has caused this Guarantee to be executed in
its
name as of the 31st day of August 2007.
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SWISS
REINSURANCE COMPANY
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Xxxxx Xxxxxxx |
Xxx Xxxxxx |
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Director
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Director
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