EXHIBIT 10.4
Executed Copy
Swap Schedule
(Multicurrency - Cross Border)
ISDA(R)
International Swaps Dealers Association, Inc.
SCHEDULE
to the
Master Agreement
dated as of 16 March 2007
between
XXXXX FARGO BANK, N.A., not in its
individual or corporate capacity but
CREDIT SUISSE INTERNATIONAL solely as Trustee on behalf of CREDIT
and SUISSE COMMERCIAL MORTGAGE TRUST 2007-C1
----------------------------- ----------------------------------------
("Party A") ("Party B")
Part 1
Termination Provisions.
(a) "Specified Entity" means in relation to Party A for the purpose of:
Section 5(a)(v), Not Applicable
Section 5(a)(vi), Not Applicable
Section 5(a)(vii), Not Applicable
Section 5(b)(iv), Not Applicable
and in relation to Party B for the purpose of:
Section 5(a)(v), Not Applicable
Section 5(a)(vi), Not Applicable
Section 5(a)(vii), Not Applicable
Section 5(b)(iv), Not Applicable
(b) "Specified Transaction" will have the meaning specified in Section 14 of
this Agreement.
(c) Certain Events of Default. Subject to Part 1(h) below, the following
Events of Default will apply to the parties as specified below, and the
definition of "Event of Default" in Section 14 is deemed to be modified
accordingly:
Section 5(a)(i) (Failure to Pay or Deliver) will apply to Party A and
Party B, provided that the word "third" shall be deleted and replaced by
"1 p.m. (New York City time) on the first".
Section 5(a)(ii) (Breach of Agreement) will apply to Party A and will not
apply to Party B.
Section 5(a)(iii) (Credit Support Default) will apply to Party A and will
not apply to Party B, unless Party A has posted collateral under the
Credit Support Annex, in which case Section 5(a)(iii)(1) will apply to
Party B.
Section 5(a)(iv) (Misrepresentation) will apply to Party A and will not
apply to Party B.
Section 5(a)(v) (Default under Specified Transaction) will not apply to
Party A or Party B.
Section 5(a)(vi) (Cross Default) will apply to Party A and will not apply
to Party B. "Specified Indebtedness" shall have the meaning specified in
Section 14 of this Agreement and "Threshold Amount" means 3% of
shareholder's equity of the Relevant Entity.
Section 5(a)(vii) (Bankruptcy) will apply to Party A and Party B; provided
that in respect of Party B, (i) clause (2) thereof shall not apply, (ii)
clause (4) thereof shall not apply to Party B to the extent that the
relevant proceeding is instituted by Party A in breach of Party A's
agreement in Part 5(g) of this Schedule, (iii) the words "seeks or" shall
be deleted from clause (6) thereof and any appointment that is effected by
or pursuant to the transaction documents shall not constitute an Event of
Default under such clause (6), (iv) clause (7) thereof shall not apply,
(v) clause (8) thereof shall apply only to the extent not inconsistent
with clauses (i) to (iv) of this sentence and (vi) clause (9) thereof
shall not apply.
Section 5(a)(viii) (Merger without Assumption) will apply to Party A and
will not apply to Party B.
(d) Termination Events. The following Termination Events will apply to the
parties as specified below:
Section 5(b)(i) (Illegality) will apply to Party A and Party B.
Section 5(b)(ii) (Tax Event) will apply to Party A and Party B; provided
that the words "(x) any action taken by a taxing authority, or brought in
a court of competent jurisdiction, on or after the date on which a
Transaction is entered into (regardless of whether such action is taken or
brought with respect to a party to this Agreement) or (y)" shall be
deleted.
Section 5(b)(iii) (Tax Event upon Merger) will apply to Party A and Party
B; provided that in the event that Party A is the Affected Party in
respect of an event described in Section 5(b)(iii), Party A shall not be
entitled to designate an Early Termination Date pursuant to such Section
5(b)(iii).
Section 5(b)(iv) (Credit Event upon Merger) will not apply to Party A or
Party B.
(e) The "Automatic Early Termination" provision of Section 6(a) of this
Agreement will not apply to Party A and will not apply to Party B.
(f) Payments on Early Termination. For the purpose of Section 6(e) of this
Agreement:
(i) Market Quotation will apply; subject to Part 5(w).
(ii) The Second Method will apply.
(iii) Both Party A and Party B agree that no amount shall be payable under
Section 6(e), if any, in connection with any Event of Default or
Termination Event other than following (A) an Event of Default in
respect of which Party A is the Defaulting Party or (B) the
Additional Termination Event described in Part 1(h)(i).
Moreover, any amounts payable by Party B under Section 6(e) as a result
shall be paid (i)(x) only if a replacement swap counterparty is procured
(which for the avoidance of doubt, Party B shall be under no obligation to
procure) and (y) only to the extent that Party B receives any payment from
such replacement swap counterparty as consideration for entering into the
replacement swap agreement (less any costs or expenses incurred by Party B
in connection thereto) or (ii) if an Additional Termination Event
described in Part 1(h)(i) occurs.
(g) "Termination Currency" means United States Dollars.
(h) Additional Termination Events. The following Additional Termination Events
will apply:
(i) The termination of the obligations and responsibilities of the
parties to the Pooling and Servicing Agreement pursuant to Section
9.01 of the Pooling and Servicing Agreement. For all purposes of
this Agreement, Party B shall be the sole Affected Party with
respect to the occurrence of a Termination Event described in this
Part 1(h)(i).
(ii) Amendment of Pooling and Servicing Agreement. Party B shall fail to
comply with Part 5(j) of this Schedule. For all purposes of this
Agreement, the Pooling and Servicing Agreement or PSA means the
pooling and servicing agreement, dated as of 1 March 2007, among
Credit Suisse First Boston Mortgage Securities Corp., as Depositor,
Capmark Finance Inc., as Master Servicer, Midland Loan Services,
Inc., as Special Servicer, and Xxxxx Fargo Bank, N.A., as Trustee
for the Trust.
(iii) Each of the following shall constitute an Additional Termination
Event with Party A as sole Affected Party:
(a) An S&P Collateralization Event has occurred and is continuing
and Party A has failed to comply with or perform any
obligation to be complied with or performed by Party A in
accordance with the "Downgrade Provisions" as set forth in
Part 5(b)(2) and a Ratings Event has neither occurred nor is
continuing. Any event which constitutes an Additional
Termination Event pursuant to this Section 1(h)(i)(a) shall
not constitute an Event of Default.
(b) A Moody's Collateralization Event has occurred and is
continuing, and Party A has failed to comply with or perform
any obligation to deliver collateral under the Credit Support
Annex and 30 Local Business Days or more have elapsed since
the last time that no Moody's Collateralization Event had
occurred and was continuing. Any event which constitutes an
Additional Termination Event pursuant to this Section
1(h)(i)(b) shall not constitute an Event of Default (unless
such event constitutes a failure to post collateral pursuant
to the terms of the Credit Support Annex in breach of Part
5(b)(4)).
(c) A Ratings Event has occurred and is continuing and Party A has
failed to comply with or perform any obligation to be complied
with or performed by Party A in accordance with the "Downgrade
Provisions" as set forth in Part 5(b)(4) and, in the case of a
Moody's Ratings Event, (i) at least one Eligible Replacement
has made a Live Bid to be the transferee of a transfer to be
made in accordance with the terms hereof and/or (ii) at least
one entity that satisfies the Hedge Counterparty Ratings
Requirements is able to provide an Eligible Guarantee in
respect of all of Party A's present and future obligations
under this Agreement subject to the satisfaction of the S&P
Ratings Condition. The failure by Party A to comply with or
perform any obligation (other than the obligation to post
collateral pursuant to the terms of the Credit Support Annex)
to be complied with or performed by Party A in accordance with
the "Downgrade Provisions" as set forth in Part 5(b)(4) will
constitute an Additional Termination Event and not an Event of
Default.
(iv) Regulation AB 10% Disclosure Requirement. If (A) the Depositor still
has a reporting obligation with respect to this Transaction pursuant
to Regulation AB (as defined herein) and (B) Party A has not, within
30 days after receipt of a 10% Swap Disclosure Request (as defined
herein), complied with the provisions set forth in clauses (ii) and
(iii) of Part 5(s) below (provided that if the significance
percentage is 10% or more and less than 20% when the 10% Swap
Disclosure Request is made or reaches 10% after a 10% Swap
Disclosure Request has been made to Party A, Party A must comply
with the provisions set forth in clauses (ii) and (iii) of Part 5(s)
below within the greater of 5 Calendar Days and 3 Business Days of
Party A being informed of the significance percentage reaching 10%
or more), then an Additional Termination Event shall have occurred
with respect to Party A and Party A shall be the sole Affected Party
with respect to such Additional Termination Event.
(v) Regulation AB 20% Disclosure Requirement. If (A) the Depositor still
has a reporting obligation with respect to this Transaction pursuant
to Regulation AB and (B) Party A has not, within 30 days after
receipt of a 20% Swap Disclosure Request (as defined herein)
complied with the provisions set forth in clauses (iv) and (v) of
Part 5(s) below (provided that if the significance percentage is 20%
or more when the 20% Swap Disclosure Request is made or reaches 20%
after a 20% Swap Disclosure Request has been made to Party A, Party
A must comply with the provisions set forth in clauses (iv) and (v)
of Part 5(s) below within the greater of 5 Calendar Days and 3
Business Days of Party A being informed of the significance
percentage reaching 20% or more), then an Additional Termination
Event shall have occurred with respect to Party A and Party A shall
be the sole Affected Party with respect to such Additional
Termination Event.
Part 2
Tax Representations.
(a) Payer Representations. For the purpose of Section 3(e) of this Agreement,
Party A will make the following representation and Party B will make the
following representation:
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from any
payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of this
Agreement) to be made by it to the other party under this Agreement. In
making this representation, it may rely on (i) the accuracy of any
representations made by the other party pursuant to Section 3(f) of this
Agreement, (ii) the satisfaction of the agreement contained in Section
4(a)(i) or 4(a)(iii) of this Agreement and the accuracy and effectiveness
of any document provided by the other party pursuant to Section 4(a)(i) or
4(a)(iii) of this Agreement and (iii) the satisfaction of the agreement of
the other party contained in Section 4(d) of this Agreement, provided that
it shall not be a breach of this representation where reliance is placed
on clause (ii) and the other party does not deliver a form or document
under Section 4(a)(iii) of this Agreement by reason of material prejudice
to its legal or commercial position.
(b) Payee Representations. For the purpose of Section 3(f) of this Agreement,
Party A and Party B make the representations specified below, if any:
(i) Party A makes the following representation to Party B:
(A) Party A is entering into each Transaction in the ordinary
course of its trade as, and is, a recognized UK bank as
defined in Section 840A of the UK Income and Corporation Taxes
Act of 1988.
(B) Party A has been approved as a Withholding Foreign Partnership
by the US Internal Revenue Service.
(C) Party A's Withholding Foreign Partnership Employer
Identification Number is 98 0330001.
(D) Party A is a partnership that agrees to comply with any
withholding obligation under Section 1446 of the Internal
Revenue Code.
(ii) Party B represents that it is the trustee of a trust created under
an agreement governed by New York law.
Part 3
Agreement to Deliver Documents.
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver the following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are:--
Party required to Form/Document/Certificate Date by which to be
deliver document delivered
--------------------------------------------------------------------------------
Party A U.S. Internal Revenue (i) Before the first
Service Form W-8IMY and Payment Date under
any successor form this Agreement, such
thereto form to be updated at
the beginning of each
succeeding three-
calendar-year period after
the first payment date under
this Agreement, (ii) promptly
upon reasonable demand by
Party B, and (iii) promptly
upon learning that any such
Form previously provided by
Party A has become obsolete
or incorrect.
(b) Other documents to be delivered are:--
Party Form/Document/Certificate Date by which Covered by
required to be Section 3(d)
to deliver Representation
document
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Party A and Evidence reasonably satisfactory to the other party as to Upon execution of Yes
Party B the names, true signatures and authority of the officers or this Agreement and,
officials signing this Agreement or any Confirmation on its if requested, upon
behalf. execution of any
Confirmation.
Party B An opinion of counsel to such party reasonably satisfactory Upon execution of No
in form and substance to the other party covering the this Agreement.
enforceability of this Agreement against such party.
Party B Any and all proposed and executed amendments to the Pooling As soon as No
and Servicing Agreement. practicable
subsequent to
execution by Party B
Party B Statements to Certificateholders of Party B at no expense to As soon as available Yes
Party A or Party B.
Part 4.
Miscellaneous.
(a) Addresses for Notices. For the purposes of Section 12(a) of this
Agreement:
Party A:
(1) Address for notices or communications to Party A (other than by
facsimile):-
Address: One Cabot Square Attention: (1) Head of Credit Risk
Xxxxxx X00 0XX Management;
England (2) Managing Director -
Operations Department;
(3) Managing Director -
Legal Department
Telex No.: 264521 Answerback: CSI G
(For all purposes.)
(2) For the purpose of facsimile notices or communications under this
Agreement (other than a notice or communication under Section 5 or
6):-
Facsimile No.: x00 00 0000 0000
Attention: Managing Director - Legal Department
Telephone number for oral confirmation of receipt of facsimile in
legible form: x00 00 0000 0000 Designated responsible employee for
the purposes of Section 12(a)(iii): Senior Legal Secretary
Party B:
Address for notices or communications to Party B:
Credit Suisse Commercial Mortgage Trust 2007-C1
c/o Wells Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
XXX
Attn: Corporate Trust Services - CSMC 2007-C1
Telephone: x0-000-000-0000
Facsimile: x0-000-000-0000
With copies to:
Credit Suisse Securities (USA) LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXX
(b) Process Agent. For the purposes of Section 13(c) of this Agreement:
Party A appoints as its Process Agent:
Credit Suisse Securities (USA) LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXX
Attention: General Counsel
Legal and Compliance Department
Party B appoints as its Process Agent: Not applicable.
(c) Offices. With respect to Party A, the provisions of Section 10(a) will
apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Party A.
(f) Credit Support Document. Credit Support Document means:-
With respect to Party A: The Credit Support Annex and any guarantee that
is provided to Party B pursuant to Part 5 (b) below.
With respect to Party B: The Credit Support Annex.
(g) Credit Support Provider.
Credit Support Provider means in relation to Party A: Not applicable or,
if a guarantee is provided to Party B pursuant to Part 5 (b) below, the
guarantor providing such guarantee.
Credit Support Provider means in relation to Party B: Not applicable..
(h) Governing Law. This Agreement and, to the fullest extent permitted by
applicable law, all matters arising out of or relating in any way to this
Agreement will be governed by and construed in accordance with the laws of
the State of New York (without reference to choice of law doctrine other
than New York General Obligation Law Sections 5-1401 and 5-1402).
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) of this Agreement
will apply to the Transactions.
(j) "Affiliate." Each of the parties shall be deemed to have no Affiliates,
other than for purposes of Section 7 (as amended herein).
Part 5.
Other Provisions.
(a) Definitions.
This Agreement, including each Confirmation and each Swap Transaction, is
subject to the 2000 ISDA Definitions, as amended, supplemented, updated
and superseded from time to time (the "Definitions"), as published by the
International Swaps and Derivatives Association, Inc. ("ISDA") and will be
governed in all respects by the Definitions (except that references to
"Swap Transactions" shall be deemed to be references to "Transactions").
The Definitions are incorporated by reference in, and made part of, this
Agreement and each Confirmation as if set forth in full in this Agreement
and such Confirmations. In the event of any inconsistency between the
provisions of this Agreement and the Definitions, this Agreement will
prevail (and, in the event of any inconsistency between any Confirmation
and the Definitions, the Confirmation will control). Any reference in a
Confirmation to any Definitions which are amended or supplemented in this
Schedule shall be deemed to be a reference to such Definitions as so
amended or supplemented, unless the Confirmation states, by specific
reference to any such amendment or supplement, that such amendment or
supplement will not apply in respect of the Transaction to which such
Confirmation relates. Any capitalized terms used but not otherwise defined
in this Agreement shall have the meanings assigned to them (or
incorporated by reference) in the Pooling and Servicing Agreement.
Capitalized terms used in this Agreement that are not defined herein and
are defined in the Pooling and Servicing Agreement shall have the
respective meanings assigned to them in the Pooling and Servicing
Agreement.
(b) Downgrade Provisions.
(1) It shall be a collateralization event (Collateralization Event) if:
(A) with respect to each Relevant Entity, either (i) such Relevant
Entity has both a long-term and short-term rating by Xxxxx'x
Investors Service, Inc. (Moody's) and (x) the unsecured,
unguaranteed and otherwise unsupported long-term senior debt
obligations of such Relevant Entity are rated "A3" or below by
Moody's or (y) the unsecured, unguaranteed and otherwise unsupported
short-term debt obligations of such Relevant Entity are rated "P-2"
or below by Moody's, or (ii) no short-term rating is available from
Moody's and the unsecured, unguaranteed and otherwise unsupported
long-term senior debt obligations of such Relevant Entity are rated
"A2" or below by Moody's (such event, a Moody's Collateralization
Event), or
(B) with respect to each Relevant Entity, either (i) the unsecured,
unguaranteed and otherwise unsupported short-term debt obligations
of such Relevant Entity are rated "A-2" or below by Standard &
Poor's Rating Services, a division of The XxXxxx-Xxxx Companies,
Inc. (S&P) or (ii) if such Relevant Entity does not have a
short-term rating from S&P, the unsecured, unguaranteed and
otherwise unsupported long-term senior debt obligations of Party A
are rated "A" or below by S&P (such event, an S&P Collateralization
Event).
Relevant Entity means Party A and any guarantor under an Eligible
Guarantee in respect of all of Party A's present and future
obligations under this Agreement.
(2) Without prejudice to Party A's obligations under the Collateral
Support Annex, during any period in which a Collateralization Event
is occurring, Party A shall, at its own expense and within thirty
(30) Business Days of such Collateralization Event (or 30 calendar
days, in the case of an S&P Collateralization Event), either (i)
post collateral according to the terms of the 1994 ISDA Credit
Support Annex to this Schedule, including Paragraph 13 thereof (the
Credit Support Annex), (ii) furnish an Eligible Guarantee (as
defined below) of Party A's obligations under this Agreement that is
(in the case of an S&P Collateralization Event) subject to the
satisfaction of the S&P Ratings Condition from a guarantor that
satisfies the Hedge Counterparty Ratings Requirement (as defined
herein), or (iii) obtain a substitute counterparty (and provide
prior written notice to each Rating Agency with respect thereto)
that (a) is reasonably acceptable to Party B, (b) satisfies the
Hedge Counterparty Ratings Requirement and (c) assumes the
obligations of Party A under this Agreement (through an assignment
and assumption agreement in form and substance reasonably
satisfactory to Party B) or replaces the outstanding Transactions
hereunder with transactions on identical terms, except that Party A
shall be replaced as counterparty, provided that such substitute
counterparty, as of the date of such assumption or replacement, must
not, as a result thereof, be required to withhold or deduct on
account of tax under the Agreement or the new transactions, as
applicable, and such assumption or replacement must not lead to a
termination event or event of default occurring in respect of the
new transactions, as applicable, provided further, that (in the case
of an S&P Collateralization Event) satisfaction of the S&P Ratings
Condition shall be required for any transfer of any Transactions
under this Part 5(b)(2)(iii) unless such transfer is in connection
with the assignment and assumption of this Agreement by such
substitute counterparty without modification of its terms, other
than the following terms: party name, dates relevant to the
effective date of such transfer, tax representations (provided that
the representations in Part 2(a) are not modified) and any other
representations regarding the status of the substitute counterparty
of the type included in Section (c) of this Part 5 and notice
information (in which case, Party A shall provide written notice to
S&P with respect thereto). To the extent that Party A elects or is
required to post collateral pursuant to this Part 5(b)(1) following
an S&P Collateralization Event, Party A shall deliver to each Rating
Agency (with a copy to the Trustee) within thirty (30) calendar days
of the occurrence of such Collateralization Event an opinion
acceptable to S&P as to the enforceability of the Credit Support
Annex and which confirms that, notwithstanding the commencement of a
case under the Bankruptcy Code with respect to Party A, the
collateral will (a) be available to meet swap obligations
notwithstanding the automatic stay and (b) if delivered
pre-bankruptcy, will not be subject to recovery as preferences or
constructive fraudulent conveyances, in each case subject to
standard qualifications and assumptions.
Eligible Guarantee means an unconditional and irrevocable guarantee
that is provided by a guarantor as principal debtor rather than
surety and is directly enforceable by Party B, where either (A) a
law firm has given a legal opinion confirming that none of the
guarantor's payments to Party B under such guarantee will be subject
to withholding for Tax or (B) such guarantee provides that, in the
event that any of such guarantor's payments to Party B are subject
to withholding for Tax, such guarantor is required to pay such
additional amount as is necessary to ensure that the net amount
actually received by Party B (free and clear of any withholding tax)
will equal the full amount Party B would have received had no such
withholding been required.
An entity shall satisfy the Hedge Counterparty Ratings Requirement
if (a) either (i) the unsecured, unguaranteed and otherwise
unsupported short-term debt obligations of the entity are rated at
least "A-1" by S&P or (ii) if the entity does not have a short-term
rating from S&P, the unsecured, unguaranteed and otherwise
unsupported long-term senior debt obligations of the entity are
rated at least "A+" by S&P, and (b) either (i) the unsecured,
unguaranteed and otherwise unsupported long-term senior debt
obligations of such entity are rated at least "A3" by Moody's and
the unsecured, unguaranteed and otherwise unsupported short-term
debt obligations of such entity are rated at least "P-2" by Moody's
(if such entity has both a long-term and short-term rating from
Moody's) or (ii) if such entity does not have a short-term debt
rating from Moody's, the unsecured, unguaranteed and otherwise
unsupported long-term senior debt obligations of such entity are
rated at least "A3" by Moody's. For the purpose of this definition,
no direct or indirect recourse against one or more shareholders of
the entity (or against any Person in control of, or controlled by,
or under common control with, any such shareholder) shall be deemed
to constitute a guarantee, security or support of the obligations of
the entity.
S&P Ratings Condition shall mean prior written confirmation from S&P
that a proposed action will not cause the downgrade or withdrawal of
the then current ratings of any outstanding Certificates.
Rating Agency shall mean each of S&P and Moody's.
(3) It shall be a ratings event (Ratings Event) if at any time after the
date hereof (A) so long as S&P is currently rating the Certificates,
either (i) the unsecured, unguaranteed and otherwise unsupported
long-term senior debt obligations of each Relevant Entity are rated
"BB+" or below by S&P, (ii) the unsecured, unguaranteed and
otherwise unsupported short-term debt obligations of each Relevant
Entity are rated "A3" or below by S&P or (iii) S&P withdraws all of
each Relevant Entity's ratings and no longer rates any Relevant
Entity (such event, an S&P Ratings Event), or (B) so long as Xxxxx'x
is currently rating the Certificates, either (i) the unsecured,
unguaranteed and otherwise unsupported long-term senior debt
obligations of each Relevant Entity are unrated or rated "Baa1" or
below by Moody's (or such rating is withdrawn) or (ii) the
unsecured, unguaranteed and otherwise unsupported short-term debt
obligations of Party A are unrated or rated "P-3" or below by
Moody's (or such rating is withdrawn) (such event, a Moody's Ratings
Event).
(4) Following a Ratings Event, Party A shall take the following actions:
(a) in the case of an S&P Ratings Event, Party A, at its sole
expense, shall (i) within 10 Business Days, subject to
extension upon satisfaction of the S&P Ratings Condition, of
the Ratings Event, obtain a substitute counterparty (and
provide written notice to each Rating Agency with respect
thereto), that (A) satisfies the Hedge Counterparty Ratings
Requirement and (B) assumes the obligations of Party A under
this Agreement (through an assignment and assumption agreement
in form and substance reasonably satisfactory to Party B) or
replaces the outstanding Transactions hereunder with
transactions on identical terms, except that Party A shall be
replaced as counterparty, provided that such substitute
counterparty, as of the date of such assumption or
replacement, must not, as a result thereof, be required to
withhold or deduct on account of tax under the Agreement or
the new transactions, as applicable, and such assumption or
replacement must not lead to a termination event or event of
default occurring in respect of the new transactions, as
applicable; provided further that satisfaction of the S&P
Ratings Condition shall be required within such 10 Business
Days or longer period, as applicable, for any transfer of any
Transaction under this clause (a)(i) unless such transfer is
in connection with the assignment and assumption of this
Agreement without modification of its terms by such
counterparty, other than the following terms: party name,
dates relevant to the effective date of such transfer, tax
representations (provided that the representations in Part
2(a) are not modified) and any other representations regarding
the status of the substitute counterparty of the type included
in Section (c) of this Part 5 and notice information (in which
case, Party A shall provide prior written notice to S&P and
the Trustee with respect thereto) and (ii) post collateral
according to the terms of the Credit Support Annex; and
(b) in the case of a Moody's Ratings Event, Party A, at its sole
expense, shall (i) use commercially reasonable efforts to, as
soon as reasonably practicable, (A) furnish an Eligible
Guarantee of Party A's obligations under this Agreement from a
guarantor that satisfies paragraph (b) of the definition of
Hedge Counterparty Ratings Requirement or (B) obtain a
substitute counterparty (and provide prior written notice to
each Rating Agency with respect thereto) that (1) is
reasonably acceptable to Party B, (2) satisfies the paragraph
(b) of the definition of Hedge Counterparty Ratings
Requirement and (3) assumes the obligations of Party A under
this Agreement (through an assignment and assumption agreement
in form and substance reasonably satisfactory to Party B) or
replaces the outstanding Transactions hereunder with
transactions on substantially the same terms, including rating
triggers, credit support documentation and other provisions of
this Agreement, except that Party A shall be replaced as
counterparty, provided that such substitute counterparty, as
of the date of such assumption or replacement, must not, as a
result thereof, be required to withhold or deduct on account
of tax under the Agreement or the new transactions, as
applicable, and such assumption or replacement must not lead
to a termination event or event of default occurring in
respect of the new transactions, as applicable and (ii) post
collateral according to the terms of the Credit Support Annex.
Rating Agency Approval shall mean prior written confirmation
from S&P and Moody's that such action will not cause them to
downgrade or withdraw its then-current ratings of any
outstanding Certificates.
(c) Section 3(a) of this Agreement is hereby amended to include
the following additional representations after paragraph
3(a)(v):
(vi) Eligible Contract Participant. It is an "eligible
contract participant" as such term is defined in Section
35.1 (b) (2) of the regulations (17 C.F.R. 35)
promulgated under and as defined in section 1a(12) of
the U.S. Commodity Exchange Act, as amended.
(vii) Individual Negotiation. This Agreement and each
Transaction hereunder is subject to individual
negotiation by the parties.
(viii) Relationship between Party A and Party B. Subject as
provided in Part 5(f), each of Party A and Party B will
be deemed to represent to the other on the date on which
it enters into a Transaction or an amendment thereof
that (absent a written agreement between Party A and
Party B that expressly imposes affirmative obligations
to the contrary for that Transaction):
(1) Principal. It is acting as principal and not as
agent when entering into this Agreement and each
Transaction.
(2) Non-Reliance. Party A is acting for its own
account and with respect to Party B, the Trustee
is executing this Agreement as Trustee on behalf
of the Trust. Each party 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 advisors 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.
(3) Evaluation and Understanding. It is capable of
evaluating and understanding (on its own behalf or
through independent professional advice), and
understands and accepts, the terms, conditions and
risks of this Agreement and each Transaction
hereunder. It is also capable of assuming, and
assumes, all financial and other risks of this
Agreement and each Transaction hereunder.
(4) Status of Parties. The other party is not acting
as a fiduciary or an advisor for it in respect of
that Transaction.
(d) Section 4 is hereby amended by adding the following new agreement:
Actions Affecting Representations. Party B agrees not to take any action
during the term of this Agreement or any Transaction hereunder that
renders or could render any of the representations and warranties in this
Agreement untrue, incorrect, or incomplete, and, if any event or condition
occurs that renders or could render any such representation untrue,
incorrect, or incomplete, Party B will immediately give written notice
thereof to Party A.
(e) Section 1(c). For purposes of Section 1(c) of the Agreement, the
Transaction with External ID: 9382621N3 shall be the sole Transaction
under the Agreement.
(f) Transfer.
(i) Section 7 is hereby amended to read in its entirety as follows:
Except as stated under Section 6(b)(ii), provided that to the extent
Party A makes a transfer pursuant to Section 6(b)(ii) it will
provide a prior written notice to the Rating Agencies of such
transfer, neither Party A nor Party B is permitted to assign, novate
or transfer (whether by way of security or otherwise) as a whole or
in part any of its rights, obligations or interests under this
Agreement or any Transaction without the prior written consent of
the other party; provided, however, that (i) Party A may make such a
transfer of this Agreement pursuant to a consolidation or
amalgamation with, or merger with or into, or transfer of
substantially all of its assets to, another entity, or an
incorporation, reincorporation or reconstitution, and (ii) Party A
may transfer this Agreement to any Person that is an office, branch
or affiliate of Party A (any such Person, office, branch or
affiliate, a Transferee) on at least five Business Days' prior
written notice to Party B; provided that, with respect to clause
(ii), (A) as of the date of such transfer the Transferee will not be
required to withhold or deduct on account of a Tax from any payments
under this Agreement unless the Transferee will be required to make
payments of additional amounts pursuant to Section 2(d)(i)(4) of
this Agreement in respect of such Tax; (B) a Termination Event or
Event of Default does not occur under this Agreement as a result of
such transfer; (C) such notice is accompanied by a written
instrument pursuant to which the Transferee acquires and assumes the
rights and obligations of Party A so transferred; and (D) Party A
will be responsible for any costs or expenses incurred in connection
with such transfer. Party B will execute such documentation as is
reasonably deemed necessary by Party A for the effectuation of any
such transfer. Notwithstanding the foregoing, no transfer shall be
made unless the transferring party obtains a written acknowledgment
from each of the Rating Agencies that, notwithstanding such
transfer, the then-current ratings of the Certificates will not be
reduced or withdrawn, provided, however, that this provision shall
not apply to any transfer that is made pursuant to the provisions of
Part 5(b) of this Agreement.
Except as specified otherwise in the documentation evidencing a
transfer, a transfer of all the obligations of Party A made in
compliance with this Section 7 will constitute an acceptance and
assumption of such obligations (and any related interests so
transferred) by the Transferee, a novation of the transferee in
place of Party A with respect to such obligations (and any related
interests so transferred), and a release and discharge by Party B of
Party A from, and an agreement by Party B not to make any claim for
payment, liability, or otherwise against Party A with respect to,
such obligations from and after the effective date of the transfer.
In addition, Party A may transfer this Agreement without the prior
written consent of the Trustee on behalf of Party B but with prior
written notice to S&P and the Trustee, to an Affiliate of Party A
that (i) satisfies the Hedge Counterparty Rating Requirements or
that has furnished a guarantee, subject to S&P Ratings Condition, of
the obligations under this Agreement from a guarantor that satisfies
the Hedge Counterparty Rating Requirements and (ii) as of the date
of such transfer such Affiliate will not be required to withhold or
deduct on account of a Tax from any payments under this Agreement
unless such Affiliate will be required to make payments of
additional amounts pursuant to Section 2(d)(i)(4) of this Agreement
in respect of such Tax; provided that satisfaction of the S&P
Ratings Condition will be required unless such transfer is in
connection with the assignment and assumption of this Agreement by
such an Affiliate without modification of its terms, other than the
following terms: party name, dates relevant to the effective date of
such transfer, tax representations (provided that the
representations in Part 2(a) are not modified) and any other
representations regarding the status of such an Affiliate the
substitute counterparty of the type included in Section (c) of this
Part 5 and notice information (in which case, Party A shall provide
written notice to S&P with respect thereto).
(ii) If an Eligible Replacement has made a Firm Offer (which means an
offer that will become legally binding upon acceptance by Party B)
to be the transferee pursuant to a Permitted Transfer, Party B
shall, at Party A's written request and at Party A's expense, take
any reasonable steps required to be taken by Party B to effect such
transfer.
(g) Trustee Capacity. It is expressly understood and agreed by the parties
hereto that (i) this Agreement is executed and delivered by Xxxxx Fargo
Bank, N.A. (the Trustee) not individually or personally but solely as
trustee of Credit Suisse Commercial Mortgage Trust 2007-C1 (the Trust), in
the exercise of the powers and authority conferred and vested in it under
the PSA, (ii) each of the representations, undertakings and agreements
herein made on the part of Party B is made and intended not as personal
representations, undertakings and agreements by the Trustee but is made
and intended for the purpose of binding only the Trust, (iii) nothing
herein contained shall be construed as creating any liability on the part
of the Trustee, individually or personally, to perform any covenant either
expressed or implied contained herein, all such liability, if any, being
expressly waived by the parties hereto and by any Person claiming by,
through or under the parties hereto and (iv) under no circumstances shall
the Trustee be personally liable for the payment of any indebtedness or
expenses of Party B or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by
Party B under this Agreement or any other related documents as to all of
which recourse shall be had solely to the assets of the Trust in
accordance with the terms of the PSA and this Agreement.
Party B represents that:
(i) Status. The Trustee is trustee of the Trust whose appointment is
valid and effective both under the laws of the State of New York and
under the Pooling and Servicing Agreement, and the Trustee has the
power to own assets in its capacity as trustee for the Trust;
(ii) Powers. In its capacity as trustee of the Trust, the Trustee has
power under the Pooling and Servicing Agreement to execute this
Agreement and any other documentation relating to this Agreement to
which the Trustee is 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 (on behalf of
the Trust) under this Agreement and any obligations (on behalf of
the Trust) it has under any Credit Support Document to which the
Trustee is party and has taken all necessary action to authorize
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 the Trustee or
the Trust, any provision of the Pooling and Servicing Agreement, any
order or judgment of any court or other agency of government
applicable to the Trustee, the Trust or any assets of the Trust, or
any contractual restriction binding on or affecting the Trustee, the
Trust or any assets of the Trust;
(iv) Consents. All governmental and other consents that are required have
been obtained by the Trustee with respect to this Agreement or any
Credit Support Document to which the Trustee is party have been
obtained and are in full force and effect and all conditions of such
consents have been complied with; and
(v) Obligations Binding. The obligation of the Trustee under this
Agreement and any Credit Support Document to which the Trustee is
party constitute legal, valid and binding obligations of the
Trustee, enforceable against the Trustee in accordance with their
respective terms (subject to applicable bankruptcy, reorganization,
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 law)) and no circumstances are known to
the Trustee which would or might prevent the Trustee from having
recourse to the assets of the Trust for the purposes of meeting such
obligations.
(h) Proceedings. Party A irrevocably and unconditionally agrees that it shall
not institute against or cause any other person to institute against, or
join any other person in instituting against the Trust, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or
other proceedings under any federal or state bankruptcy, dissolution or
similar law, for a period of one year and one day, or if longer the
applicable preference period then in effect, following indefeasible
payment in full of the Certificates. Nothing shall preclude, or be deemed
to stop, Party A (i) from taking any action prior to the expiration of the
aforementioned one year and one day period, or if longer the applicable
preference period then in effect, in (A) any case or proceeding
voluntarily filed or commenced by Party B or (B) any involuntary
insolvency proceeding filed or commenced by a Person other than Party A,
(ii) from commencing against Party B any legal action which is not a
bankruptcy, reorganization, arrangement, insolvency, moratorium,
liquidation or similar proceeding. Party A acknowledges that the foregoing
provision will not confer upon it any additional rights or recourse
against Party B other than is set forth in this Agreement. This provision
shall survive termination of this Agreement.
(i) Change of Account. Section 2(b) of this Agreement is hereby amended by the
addition of the following after the word "delivery" in the first line
thereof:-
"to another account in the same legal and tax jurisdiction as the original
account"
(j) Pooling and Servicing Agreement. Party B will provide at least ten days'
prior written notice to Party A of any proposed amendment or modification
to the PSA (to the extent Party B is aware within such timeframe of such
proposed amendment or modification) and Party B will obtain the prior
written consent of Party A to any such amendment or modification, where
such consent is required under the terms of the PSA.
(k) Set-off. Notwithstanding any provision of this Agreement or any other
existing or future agreements, each of Party A and Party B irrevocably
waives as to itself any and all contractual rights it may have to set off,
net, recoup or otherwise withhold or suspend or condition its payment or
performance of any obligation to the other party under this Agreement
against any obligation of one party hereto to the other party hereto
arising outside of this Agreement. The provisions for set-offset forth in
Section 6(e) of this Agreement shall not apply for purposes of this
Transaction.
(l) 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 suit, action or proceeding relating to this Agreement or any Credit
Support Document. Each party certifies (i) that no representative, agent
or attorney of the other party or any Credit Support Provider has
represented, expressly or otherwise, that such other party would not, in
the event of such a suit, action or proceeding, seek to enforce the
foregoing waiver and (ii) acknowledges that it and the other party have
been induced to enter into this Agreement and provide for any Credit
Support Document, as applicable, by, among other things, the mutual
waivers and certifications in this Section.
(m) Consent to Recording. Each party (i) consents to the recording of the
telephone conversations of trading and marketing personnel of the parties
and their Affiliates in connection with this Agreement or any potential
transaction and (ii) if applicable, agrees to obtain any necessary consent
of, and give notice of such recording to, such personnel of it and its
Affiliates.
(n) Severability. If any term, provision, covenant, or condition of this
Agreement, or the application thereof to any party or circumstance, shall
be held to be illegal, invalid or unenforceable (in whole or in part) for
any reason, the remaining terms, provisions, covenants and conditions
hereof shall continue in full force and effect as if this Agreement had
been executed with the illegal, invalid or unenforceable portion
eliminated, so long as this Agreement as so modified continues to express,
without material change, the original intentions of the parties as to the
subject matter of this Agreement and the deletion of such portion of this
Agreement will not substantially impair the respective benefits or
expectations of the parties to this Agreement.
(o) Notice of Certain Events or Circumstances. Each party agrees, upon
learning of the occurrence or existence of any event or condition that
constitutes (or that with the giving of notice or passage of time or both
would constitute) an Event of Default or Termination Event with respect to
such party, promptly to give the other party notice of such event or
condition (or, in lieu of giving notice of such event or condition in the
case of an event or condition that with the giving of notice or passage of
time or both would constitute an Event of Default or Termination Event
with respect to the party, to cause such event or condition to cease to
exist before becoming an Event of Default or Termination Event); provided
that failure to provide notice of such event or condition pursuant to this
Part 5(o) shall not constitute an Event of Default or a Termination Event.
(p) Regarding Party A. Party B acknowledges and agrees that Party A has had
and will have no involvement in and, accordingly Party A accepts no
responsibility for: (i) the establishment, structure, or choice of assets
of Party B; (ii) the selection of any person performing services for or
acting on behalf of Party B; (iii) the selection of Party A as the
Counterparty; (iv) the terms of the Certificates; (v) the preparation of
or passing on the disclosure and other information contained in any
prospectus and prospectus supplement for the Certificates, the Pooling and
Servicing Agreement, or any other agreements or documents used by Party B
or any other party in connection with the marketing and sale of the
Certificates (other than with respect to disclosure about Party A); (vi)
the ongoing operations and administration of Party B, including the
furnishing of any information to Party B which is not specifically
required under this Agreement; or (vii) any other aspect of Party B's
existence.
(q) Rating Agency Condition. This Agreement will not be amended unless Party B
shall have received prior written confirmation from each of the Rating
Agencies (as defined in the Pooling and Servicing Agreement) that such
amendment will not cause S&P, Moody's or Fitch to downgrade or withdraw
its then current ratings of any outstanding Offered Certificates. In
addition, Party B shall not waive any right hereunder without the prior
written consent of each of the Rating Agencies.
(r) Limited Recourse. Notwithstanding anything herein to the contrary, Party A
agrees that the liability of Party B under this Agreement and the
Confirmation is limited in recourse to only the amounts with respect to
interest on the Class A-MFL Regular Interest on deposit in the Floating
Rate Account (as such terms are defined in the Pooling and Servicing
Agreement) and any Yield Maintenance Charges distributable in respect of
the Class A-MFL Regular Interest pursuant to Section 4.01(j) of the
Pooling and Servicing Agreement (plus all payment received by Party B from
a replacement swap counterparty, if any), if any, held by the Trustee in
accordance with the Pooling and Servicing Agreement. Party A shall have no
right to institute any proceedings for the enforcement of a lien on any
Trust Assets except to the extent of interest on the Class A-MFL Regular
Interest on deposit in the Floating Rate Account and any Yield Maintenance
Charges distributable in respect of the Class A-MFL Regular Interest
pursuant to Section 4.01(j) of the Pooling and Servicing Agreement (plus
all payment received by Party B from a replacement swap counterparty, if
any). Upon the realization of the Trust Estate and distribution of the net
proceeds thereof with respect to the Class A-MFL Regular Interest in
accordance with Section 4.01 of the Pooling and Servicing Agreement (plus
all payment received by Party B from a replacement swap counterparty, if
any), Party A shall not be entitled to take any further steps against
Party B to recover any sums due but still unpaid hereunder or under the
Pooling and Servicing Agreement and all claims hereunder and all claims in
respect of the Pooling and Servicing Agreement shall be extinguished. For
the avoidance of doubt, the parties agree that Party B shall be under no
obligation to pay costs, expenses or termination payments due hereunder,
except to the extent such amounts have been paid to Party B by a
replacement swap provider after netting out costs and expenses incurred by
Party B or to the extent of funds available in the Floating Rate Account
in accordance with Section 9.02(b) of the Pooling and Servicing Agreement.
For the avoidance of doubt, in the event the Master Servicer fails to pay
Party A any Class A-MFL Net Fixed Swap Payment in accordance with the
Pooling and Servicing Agreement, Party A shall not be precluded from
proceeding against the Master Servicer to recover such unpaid Net Fixed
Swap Payment to the extent such amount remains unpaid by Party B or any
other party.
(s) Compliance with Regulation AB.
(i) Party A acknowledges that for so long as there are reporting
obligations with respect to this Transaction under Regulation AB,
the Depositor, acting on behalf of the Credit Suisse Commercial
Mortgage Trust 2007-C1 (the Issuing Entity), is required under
Regulation AB under the Securities Act of 1933, as amended, and the
Securities Exchange Act of 1934, as amended (Regulation AB), to
disclose certain information set forth in Regulation AB regarding
Party A or its group of affiliated entities, if applicable,
depending on the aggregate "significance percentage" of this
Agreement and any other derivative contracts between Party A or its
group of affiliated entities, if applicable, and Party B, as
calculated from time to time in accordance with Item 1115 of
Regulation AB.
(ii) So long as there are reporting obligations with respect to this
Transaction under Regulation AB, if the Depositor determines,
reasonably and in good faith, that the significance percentage of
this Agreement has increased to nine (9) percent or more, then the
Depositor may request on a Business Day on or after the date of such
determination from Party A the same information set forth in Item
1115(b)(1) of Regulation AB that would have been required if the
significance percentage had in fact increased to ten (10) percent,
along with any necessary auditors' consent (such request, a 10% Swap
Disclosure Request and such requested information, subject to the
last sentence of this paragraph, is the 10% Swap Financial
Disclosure). Party B or the Depositor shall provide Party A with the
calculations and any other information reasonably requested by Party
A with respect to the Depositor's determination that led to the 10%
Swap Disclosure Request. The parties hereto further agree that the
10% Swap Financial Disclosure provided to meet the 10% Swap
Disclosure Request may be, solely at Party A's option, either the
information set forth in Item 1115(b)(1) or Item 1115(b)(2) of
Regulation AB.
(iii) So long as there are reporting obligations with respect to this
Transaction under Regulation AB, upon the occurrence of a 10% Swap
Disclosure Request, Party A, at its own expense, shall (i) provide
the Depositor with the 10% Swap Financial Disclosure, (ii) secure
another entity to replace Party A as party to this Agreement on
terms substantially similar to this Agreement which entity is able
to (A) provide the 10% Swap Financial Disclosure and (B) provide an
indemnity to the Depositor, reasonably satisfactory to the
Depositor, in relation to the 10% Swap Financial Disclosure or (iii)
obtain a guaranty of Party A's obligations under this Agreement from
an affiliate of Party A that is able to (A) provide the 10% Swap
Financial Disclosure, such that disclosure provided in respect of
the affiliate will, in the judgment of counsel to the Depositor,
satisfy any disclosure requirements applicable to Party A, and cause
such affiliate to provide 10% Swap Financial Disclosure and (B)
provide an indemnity to the Depositor, reasonably satisfactory to
the Depositor, in relation to the 10% Swap Financial Disclosure. If
permitted by Regulation AB, any required 10% Swap Financial
Disclosure may be provided by incorporation by reference from
reports filed pursuant to the Securities Exchange Act.
(iv) So long as there are reporting obligations with respect to this
Transaction under Regulation AB, as amended, if the Depositor
determines, reasonably and in good faith, that the significance
percentage of this Agreement has increased to nineteen (19) percent
or more, then the Depositor may request on a Business Day on or
after the date of such determination from Party A the same
information set forth in Item 1115(b)(2) of Regulation AB that would
have been required if the significance percentage had in fact
increased to twenty (20) percent, along with any necessary auditors
consent (such request, a 20% Swap Disclosure Request and such
requested information is the 20% Swap Financial Disclosure). Party B
or the Depositor shall provide Party A with the calculations and any
other information reasonably requested by Party A with respect to
the Depositor's determination that led to the 20% Swap Disclosure
Request.
(v) So long as there are reporting obligations with respect to this
Transaction under Regulation AB, upon the occurrence of a 20% Swap
Disclosure Request, Party A, at its own expense, shall (i) provide
the Depositor with the 20% Swap Financial Disclosure, (ii) secure
another entity to replace Party A as party to this Agreement on
terms substantially similar to this Agreement which entity is able
to (A) provide the 20% Swap Financial Disclosure and (B) provide an
indemnity to the Depositor, reasonably satisfactory to the
Depositor, in relation to the 20% Swap Financial Disclosure or (iii)
obtain a guaranty of Party A's obligations under this Agreement from
an affiliate of Party A that is able to (A) provide the 20% Swap
Financial Disclosure, such that disclosure provided in respect of
the affiliate will, in the judgment of counsel to the Depositor,
satisfy any disclosure requirements applicable to Party A, and cause
such affiliate to provide 20% Swap Financial Disclosure and (B)
provide an indemnity to the Depositor, reasonably satisfactory to
the Depositor, in relation to the 20% Swap Financial Disclosure. If
permitted by Regulation AB, any required 20% Swap Financial
Disclosure may be provided by incorporation by reference from
reports filed pursuant to the Securities Exchange Act.
(t) Third Party Beneficiary.
Depositor shall be an express third party beneficiary of this Agreement as
if a party hereto to the extent of the Depositor 's rights explicitly
specified herein
(u) Credit Support Default. Section 5(a)(iii)(1) of this Agreement is hereby
deleted and replaced with the following:
"(1) The occurrence of an Event of Default under any Credit Support
Document if such Event of Default is continuing after any applicable grace
period has elapsed;"
(v) Tax. Notwithstanding the definition of "Indemnifiable Tax" in Section 14
of this Agreement, in relation to payments by Party A, any Tax shall be an
Indemnifiable Tax and, in relation to payments by Party B, no Tax shall be
an Indemnifiable Tax.
(w) Calculations. Notwithstanding Section 6 of this Agreement, so long as
Party A is (A) the sole Affected Party (other than pursuant to an
Illegality or a Tax Event) or (B) the Defaulting Party in respect of any
Event of Default, paragraphs (i) to (vii) below shall apply:
(i) Notwithstanding Part 1(f) hereof, "Market Quotation" shall apply,
and the definition of "Market Quotation" shall be deleted in its
entirety and replaced with the following:
""Market Quotation" means, with respect to one or more Terminated
Transactions, a Live Bid which is (1) made by a Reference Market-maker
that is an Eligible Replacement, (2) for an amount that would be paid to
Party B (expressed as a negative number) or by Party B (expressed as a
positive number) in consideration of an agreement between Party B and such
Reference Market-maker to enter into a 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 Transactions or group of Terminated
Transactions that would, but for the occurrence of the relevant Early
Termination Date, have been required after that date, (3) made on the
basis that Unpaid Amounts in respect of the Terminated Transaction or
group of Transactions are to be excluded but, without limitation, any
payment or delivery that would, but for the relevant Early Termination
Date, have been required (assuming satisfaction of each applicable
condition precedent) after that Early Termination Date is to be included
and (4) made in respect of a Replacement Transaction with terms
substantially the same as those of this Agreement (save for the exclusion
of provisions relating to Transactions that are not Terminated
Transactions)."
(ii) The definition of "Settlement Amount" shall be deleted in its
entirety and replaced with the following:
""Settlement Amount" means, with respect to any Early Termination Date, an
amount (as determined by Party B based on information provided by the
Reference Market-Maker) equal to the Termination Currency Equivalent of
the amount (whether positive or negative) of any Market Quotation for the
relevant Terminated Transaction or group of Terminated Transactions that
is accepted by Party B so as to become legally binding, provided that:
(1) If, on the day falling ten Local Business Days after the day on
which the Early Termination Date is designated or such later day as
Party B may specify in writing to Party A (but in either case no
later than the Early Termination Date) (such day the "Latest
Settlement Amount Determination Day"), no Market Quotation for the
relevant Terminated Transaction or group of Terminated Transactions
has been accepted by Party B so as to become legally binding and one
or more Market Quotations have been made and remain capable of
becoming legally binding upon acceptance, the Settlement Amount
shall equal the Termination Currency Equivalent of the amount
(whether positive or negative) of the lowest of such Market
Quotations (for the avoidance of doubt, the lowest of such Market
Quotations shall be the lowest Market Quotation of such Market
Quotations expressed as a positive number or, if any of such Market
Quotations is expressed as a negative number, the Market Quotation
expressed as a negative number with the largest absolute value); and
(2) If, on the Latest Settlement Amount Determination Day, no Market
Quotation for the relevant Terminated Transaction or group of
Terminated Transactions is accepted by Party B so as to become
legally binding and no Market Quotations have been made and remain
capable of becoming legally binding upon acceptance, the Settlement
Amount shall equal Party B's Loss (whether positive or negative and
without reference to any Unpaid Amounts) for the relevant Terminated
Transaction or group of Terminated Transactions."
(iii) For the purpose of clause (4) of the definition of Market Quotation,
Party B shall determine, based on information provided by the
Reference Market-Maker, whether a Live Bid is made in respect of a
Replacement Transaction with commercial terms substantially the same
as those of this Agreement (save for the exclusion of provisions
relating to Transactions that are not Terminated Transactions).
(iv) At any time on or before the Latest Settlement Amount Determination
Day at which two or more Market Quotations remain capable of
becoming legally binding upon acceptance, Party B shall be entitled
to accept only the lowest of such Market Quotations (for the
avoidance of doubt, the lowest of such Market Quotations shall be
the lowest Market Quotation of such Market Quotations expressed as a
positive number or, if any of such Market Quotations is expressed as
a negative number, the Market Quotation expressed as a negative
number with the largest absolute value).
(v) If Party B requests Party A in writing to obtain Market Quotations,
Party A shall use its reasonable efforts to do so before the Latest
Settlement Amount Determination Day.
(vi) If the Settlement Amount is a negative number, Section 6(e)(i)(3) of
this Agreement shall be deleted in its entirety and replaced with
the following:
"Second Method and Market Quotation. If Second Method and Market Quotation
apply, (1) Party B shall pay to Party A an amount equal to the absolute
value of the Settlement Amount in respect of the Terminated Transactions,
(2) Party B shall pay to Party A the Termination Currency Equivalent of
the Unpaid Amounts owing to Party A and (3) Party A shall pay to Party B
the Termination Currency Equivalent of the Unpaid Amounts owing to Party
B; provided that, (i) the amounts payable under (2) and (3) shall be
subject to netting in accordance with Section 2(c) of this Agreement and
(ii) notwithstanding any other provision of this Agreement, any amount
payable by Party A under (3) shall not be netted-off against any amount
payable by Party B under (1)."
(vii) For purposes of this Part 5(w),
"Eligible Replacement" means an entity (A) satisfying the Hedge
Counterparty Ratings Requirement or (B) whose present and future
obligations owing to Party B are guaranteed pursuant to a guarantee
acceptable to S&P provided by a guarantor satisfying the Hedge
Counterparty Ratings Requirements.
"Live Bid" means a firm quotation from a Reference Market-maker that is an
Eligible Replacement which, when made, was capable of becoming legally
binding upon acceptance.
IN WITNESS WHEREOF, the parties have executed this document by their duly
authorized officers with effect from the date so specified on the first page
hereof.
Credit Suisse International Xxxxx Fargo Bank, N.A., not in its
individual capacity but solely as
Trustee on behalf of Credit Suisse
Commercial Mortgage Trust 2007-C1
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxx Xxxxxxxxx
----------------------------- -----------------------------
Name: Xxxxxxx Xxxxxx Name: Xxx Xxxxxxxxx
Title: Authorized Signatory Title: Vice President
By: /s/ Xxxxxx X. Xxxx
-----------------------------
Name: Xxxxxx X. Xxxx
Title: Authorized Signatory
