EXHIBIT 99.3
BEAR XXXXXXX
BEAR XXXXXXX FINANCIAL PRODUCTS INC.
000 XXXXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
000-000-0000
DATE: May 26, 2006
TO: Citibank, N.A., New York Branch
ATTENTION: Xxxx Xxxxx
TELEPHONE: 000-000-0000
FACSIMILE: 000-000-0000
FROM: Derivatives Documentation
TELEPHONE: 000-000-0000
FACSIMILE: 000-000-0000
SUBJECT: Fixed Income Derivatives Confirmation and Agreement
REFERENCE NUMBER: FXNEC8279 - Amended
This Confirmation and Agreement is amended and supersedes all previous
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Confirmations and Agreements regarding this Transaction.
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The purpose of this letter agreement ("Agreement") is to confirm the terms and
conditions of the Transaction entered into on the Trade Date specified below
(the "Transaction") between Bear Xxxxxxx Financial Products Inc. ("BSFP") and
Citibank, N.A., New York Branch ("Counterparty"). This Agreement, which
evidences a complete and binding agreement between you and us to enter into
the Transaction on the terms set forth below, constitutes a "Confirmation" as
referred to in the "ISDA Form Master Agreement" (as defined below), as well as
a "Schedule" as referred to in the ISDA Form Master Agreement.
1. This Agreement is subject to the 2000 ISDA Definitions (the "Definitions"),
as published by the International Swaps and Derivatives Association, Inc.
("ISDA"). You and we have agreed to enter into this Agreement in lieu of
negotiating a Schedule to the 1992 ISDA Master Agreement (Multicurrency--Cross
Border) form (the "ISDA Form Master Agreement") but, rather, an ISDA Form
Master Agreement shall be deemed to have been executed by you and us on the
date we entered into the Transaction. All provisions contained in, or
incorporated by reference to, the ISDA Form Master Agreement shall govern the
Transaction referenced in this Confirmation, except as expressly modified
below. In the event of any inconsistency between the provisions of this
Agreement and the Definitions or the ISDA Form Master Agreement, this
Agreement shall prevail for purposes of the Transaction.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Type of Transaction: Rate Cap
Notional Amount: With respect to any Calculation Period, the
amount set forth for such period in Schedule I
attached hereto
Reference Number: FXNEC8279 - Amended
Citibank, N.A., New York Branch
May 26, 2006
Page 2 of 12
Trade Date: May 19, 2006
Effective Date: May 30, 2006
Termination Date: July 25, 2011
Fixed Amount (Premium):
Fixed Rate Payer: Counterparty
Fixed Rate Payer
Payment Date: May 30, 2006
Fixed Amount: USD ^654,500
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Floating Amounts:
Floating Rate Payer: BSFP
Cap Rate: 5.60000%
Floating Rate Payer
Period End Dates: The 25th calendar day of each month
during the Term of this Transaction,
commencing June 25, 2006 and ending on the
Termination Date, with No Adjustment.
Floating Rate Payer
Payment Dates: Early Payment shall be applicable. The
Floating Rate Payer Payment Dates shall be two
Business Days preceding each Floating Rate
Payer Period End Date.
Floating Rate
Option: USD-LIBOR-BBA, provided, however, that if the
Floating Rate determined from such Floating
Rate Option for any Calculation Period is
greater than 9.10000% then the Floating Rate
for such Calculation Period shall be deemed to
be 9.10000%.
Designated
Maturity: One month
Floating Rate Day
Count Fraction: 30/360
Reset Dates: The first day of each Calculation Period.
Compounding: Inapplicable
Reference Number: FXNEC8279 - Amended
Citibank, N.A., New York Branch
May 26, 2006
Page 3 of 12
Business Days: New York
Business Day Convention: Following
3. Additional Provisions: Each party hereto is hereby advised and
acknowledges that the other party has engaged
in (or refrained from engaging in) substantial
financial transactions and has taken (or
refrained from taking) other material actions
in reliance upon the entry by the parties into
the Transaction being entered into on the
terms and conditions set forth herein and in
the Confirmation relating to such Transaction,
as applicable. This paragraph shall be deemed
repeated on the trade date of each
Transaction.
4. Provisions Deemed Incorporated in a Schedule to the ISDA Form Master
Agreement:
1) The parties agree that subparagraph (ii) of Section 2(c) of the ISDA Form
Master Agreement will apply to any Transaction.
2) Termination Provisions. For purposes of the ISDA Form Master Agreement:
(a) "Specified Entity" is not applicable to BSFP or Counterparty for any
purpose.
(b) "Specified Transaction" is not applicable to BSFP or Counterparty for any
purpose, and, accordingly, Section 5(a)(v) shall not apply to BSFP or
Counterparty.
(c) The "Cross Default" provisions of Section 5(a)(vi) will not apply to BSFP
or to Counterparty.
(d) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) will not
apply to BSFP or Counterparty.
(e) The "Automatic Early Termination" provision of Section 6(a) will not apply
to BSFP or to Counterparty.
(f) Payments on Early Termination. For the purpose of Section 6(e) of the ISDA
Form Master Agreement:
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(g) "Termination Currency" means United States Dollars.
Reference Number: FXNEC8279 - Amended
Citibank, N.A., New York Branch
May 26, 2006
Page 4 of 12
3) Tax Representations. Not applicable
4) Limitation on Events of Default. Notwithstanding the terms of Sections 5
and 6 of the ISDA Form Master Agreement, if at any time and so long as the
Counterparty has satisfied in full all its payment obligations under Section
2(a)(i) of the ISDA Form Master Agreement and has at the time no future
payment obligations, whether absolute or contingent, under such Section, then
unless BSFP is required pursuant to appropriate proceedings to return to the
Counterparty or otherwise returns to the Counterparty upon demand of the
Counterparty any portion of any such payment, (a) the occurrence of an event
described in Section 5(a) of the ISDA Form Master Agreement with respect to
the Counterparty shall not constitute an Event of Default or Potential Event
of Default with respect to the Counterparty as Defaulting Party and (b) BSFP
shall be entitled to designate an Early Termination Date pursuant to Section 6
of the ISDA Form Master Agreement only as a result of the occurrence of a
Termination Event set forth in either Section 5(b)(i) or 5(b)(ii) of the ISDA
Form Master Agreement with respect to BSFP as the Affected Party, or Section
5(b)(iii) of the ISDA Form Master Agreement with respect to BSFP as the
Burdened Party.
5) Documents to be Delivered. For the purpose of Section 4(a) of the ISDA Form
Master Agreement:
(1) Tax forms, documents, or certificates to be delivered are:
Party required to deliver Form/Document/ Date by which to
document Certificate be delivered
BSFP and the Counterparty Any document required or Promptly after the earlier of
reasonably requested to allow (i) reasonable demand by
the other party to make either party or (ii) learning
payments under this Agreement that such form or document is
without any deduction or required
withholding for or on the
account of any Tax or with
such deduction or withholding
at a reduced rate
(2) Other documents to be delivered are:
Party required to Form/Document/ Date by which to Covered by Section 3(d)
deliver document Certificate be delivered Representation
BSFP and Any documents required by Upon the execution and Yes
the Counterparty the receiving party to delivery of this Agreement
evidence the authority of and such Confirmation
Reference Number: FXNEC8279 - Amended
Citibank, N.A., New York Branch
May 26, 2006
Page 5 of 12
Party required to Form/Document/ Date by which to Covered by Section 3(d)
deliver document Certificate be delivered Representation
of the delivering party or
its Credit Support Provider,
if any, for it to execute and
deliver this Agreement, any
Confirmation , and any
Credit Support Documents to
which it is a party, and to
evidence the authority of
the delivering party or its
Credit Support Provider to
perform its obligations
under this Agreement, such
Confirmation and/or Credit
Support Document, as the
case may be
BSFP and A certificate of an Upon the execution and Yes
the Counterparty authorized officer of the delivery of this Agreement
party, as to the incumbency and such Confirmation
and authority of the
respective officers of the
party signing this Agreement,
any relevant Credit Support
Document, or any
Confirmation, as the case may
be
6) Miscellaneous. Miscellaneous
(a) Address for Notices: For the purposes of Section 12(a) of the ISDA Form
Master Agreement:
Address for notices or communications to BSFP:
Address: 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: DPC Manager
Facsimile: (000) 000-0000
Reference Number: FXNEC8279 - Amended
Citibank, N.A., New York Branch
May 26, 2006
Page 6 of 12
with a copy to:
Address: Xxx Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000
Attention: Derivative Operations - 7th Floor
Facsimile: (000) 000-0000
(For all purposes)
Address for notices or communications to the Counterparty:
Address: Citibank, N.A.
000 Xxxxxxxxx Xxxxxx - 0xx Xxxxx
Attention: Xxxx Xxxxx
Facsimile: 000-000-0000
Phone: 000-000-0000
(For all purposes)
(b) Process Agent. For the purpose of Section 13(c) of the ISDA Form Master
Agreement:
BSFP appoints as its
Process Agent: Not Applicable
The Counterparty appoints
as its Process Agent: Not Applicable
(c) Offices. The provisions of Section 10(a) of the ISDA Form Master
Agreement will not apply to this Agreement; neither BSFP nor the
Counterparty have any Offices other than as set forth in the Notices
Section and BSFP agrees that, for purposes of Section 6(b) of the ISDA
Form Master Agreement, it shall not in future have any Office other than
one in the United States.
(d) Multibranch Party. For the purpose of Section 10(c) of the ISDA Form
Master Agreement:
BSFP is not a Multibranch Party.
The Counterparty is a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is BSFP; provided, however, that
if an Event of Default occurs with respect to BSFP, then the Counterparty
shall be entitled to appoint a financial institution which would qualify
as a Reference Market-maker to act as Calculation Agent.
Reference Number: FXNEC8279 - Amended
Citibank, N.A., New York Branch
May 26, 2006
Page 7 of 12
(f) Credit Support Document. Not applicable for either BSFP or the
Counterparty.
(g) Credit Support Provider.
BSFP: Not Applicable
The Counterparty: Not Applicable
(h) Governing Law. The parties to this Agreement hereby agree that the law of
the State of New York shall govern their rights and duties in whole.
(i) Severability. If any term, provision, covenant, or condition of this
Agreement, or the application thereof to any party or circumstance, shall
be held to be invalid or unenforceable (in whole or in part) for any
reason, the remaining terms, provisions, covenants, and conditions hereof
shall continue in full force and effect as if this Agreement had been
executed with the invalid or unenforceable portion eliminated, so long as
this Agreement as so modified continues to express, without material
change, the original intentions of the parties as to the subject matter
of this Agreement and the deletion of such portion of this Agreement will
not substantially impair the respective benefits or expectations of the
parties.
The parties shall endeavor to engage in good faith negotiations to
replace any invalid or unenforceable term, provision, covenant or
condition with a valid or enforceable term, provision, covenant or
condition, the economic effect of which comes as close as possible to
that of the invalid or unenforceable term, provision, covenant or
condition.
(j) Consent to Recording. Each party hereto consents to the monitoring or
recording, at any time and from time to time, by the other party of any
and all communications between officers or employees of the parties,
waives any further notice of such monitoring or recording, and agrees to
notify its officers and employees of such monitoring or recording.
(k) Waiver of Jury Trial. Each party waives any right it may have to a trial
by jury in respect of any Proceedings relating to this Agreement or any
Credit Support Document.
(l) BSFP will not unreasonably withhold or delay its consent to an assignment
of this Agreement to any other third party.
(m) Set-Off. Notwithstanding any provision of this Agreement or any other
existing or future agreement, each party irrevocably waives any and all
rights it may have to set off, net, recoup or otherwise withhold or
suspend or condition payment or performance of any obligation between it
and the other party hereunder against any obligation between it and the
other party under any other agreements. The provisions for Set-Off set
fort in Section 6(e) of the Agreement shall not apply for purposes of
this Transaction.
Reference Number: FXNEC8279 - Amended
Citibank, N.A., New York Branch
May 26, 2006
Page 8 of 12
7) "Affiliate" will have the meaning specified in Section 14 of the ISDA Form
Master Agreement, provided that BSFP shall not be deemed to have any
Affiliates for purposes of this Agreement, including for purposes of Section
6(b)(ii) of the ISDA Form Master Agreement.
8) Section 3 of the ISDA Form Master Agreement is hereby amended by adding at
the end thereof the following subsection (g):
"(g) Relationship Between Parties.
Each party represents to the other party on each date when it
enters into a Transaction that:--
(1) Nonreliance. It is not relying on any statement or
representation of the other party regarding the Transaction (whether written
or oral), other than the representations expressly made in this Agreement or
the Confirmation in respect of that Transaction.
(2) Evaluation and Understanding.
(i) It has the capacity to evaluate (internally or through
independent professional advice) the Transaction and has made its own decision
to enter into the Transaction; and
(ii) It understands the terms, conditions and risks of the
Transaction and is willing and able to accept those terms and conditions and
to assume those risks, financially and otherwise.
(3) Purpose. It is entering into the Transaction for the purposes
of managing its borrowings or investments, hedging its underlying assets or
liabilities or in connection with a line of business.
(4) Principal. It is entering into the Transaction as principal,
and not as agent or in any other capacity, fiduciary or otherwise."
(5) Eligible Contract Participant. Each party constitutes an
"eligible contract participant" as such term is defined in Section 1(a)12 of
the Commodity Exchange Act, as amended.
NEITHER THE BEAR XXXXXXX COMPANIES INC. NOR ANY SUBSIDIARY OR AFFILIATE
OF THE BEAR XXXXXXX COMPANIES INC. OTHER THAN BSFP IS AN OBLIGOR OR A
CREDIT SUPPORT PROVIDER ON THIS AGREEMENT.
5. Account Details and
Settlement Information: Payments to BSFP:
Citibank, N.A., New York
Reference Number: FXNEC8279 - Amended
Citibank, N.A., New York Branch
May 26, 2006
Page 9 of 12
ABA Number: 000-0000-00, for the account of
Bear, Xxxxxxx Securities Corp.
Account Number: 0925-3186, for further credit to
Bear Xxxxxxx Financial Products Inc.
Sub-account Number: 102-04654-1-3
Attention: Derivatives Department
Payments to Counterparty:
[Please provide]
This Agreement may be executed in several counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.
Counterparty hereby agrees to check this Confirmation and to confirm that the
foregoing correctly sets forth the terms of the Transaction by signing in the
space provided below and returning to BSFP a facsimile of the fully-executed
Confirmation to 000-000-0000. For inquiries regarding U.S. Transactions,
please contact Xxxxx Xxxxxx by telephone at 000-000-0000. For all other
inquiries please contact Derivatives Documentation by telephone at
000-0-000-0000. Originals will be provided for your execution upon your
request.
We are very pleased to have executed this Transaction with you and we look
forward to completing other transactions with you in the near future.
Very truly yours,
BEAR XXXXXXX FINANCIAL PRODUCTS INC.
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Authorized Signatory
Counterparty, acting through its duly authorized signatory, hereby agrees to,
accepts and confirms the terms of the foregoing as of the Trade Date.
CITIBANK, N.A., NEW YORK BRANCH
By: /s/ Xxxxx X. Xxxxxxxxxxxx
As authorized agent or officer for Citibank, N.A.
Reference Number: FXNEC8279 - Amended
Citibank, N.A., New York Branch
May 26, 2006
Page 10 of 12
Name: Xxxxx X. Xxxxxxxxxxxx
Title: Authorized Signatory
lm/am
Reference Number: FXNEC8279 - Amended
Citibank, N.A., New York Branch
May 26, 2006
Page 11 of 12
SCHEDULE I
Notional Amount
From and Including To but excluding (USD)
------------------ ---------------- -----
Effective Date 6/25/2006 ^174,743,000
6/25/2006 7/25/2006 172,133,878
7/25/2006 8/25/2006 169,125,795
8/25/2006 9/25/2006 165,723,081
9/25/2006 10/25/2006 161,931,312
10/25/2006 11/25/2006 157,757,407
11/25/2006 12/25/2006 153,209,623
12/25/2006 1/25/2007 148,297,543
1/25/2007 2/25/2007 143,032,054
2/25/2007 3/25/2007 137,425,323
3/25/2007 4/25/2007 131,490,765
4/25/2007 5/25/2007 125,243,001
5/25/2007 6/25/2007 118,929,065
6/25/2007 7/25/2007 113,695,523
7/25/2007 8/25/2007 108,644,883
8/25/2007 9/25/2007 103,775,127
9/25/2007 10/25/2007 99,084,214
10/25/2007 11/25/2007 94,570,076
11/25/2007 12/25/2007 90,230,623
12/25/2007 1/25/2008 86,063,742
1/25/2008 2/25/2008 82,067,296
2/25/2008 3/25/2008 78,239,124
3/25/2008 4/25/2008 74,577,044
4/25/2008 5/25/2008 71,078,850
5/25/2008 6/25/2008 67,742,316
6/25/2008 7/25/2008 64,565,191
7/25/2008 8/25/2008 61,545,209
8/25/2008 9/25/2008 58,680,077
9/25/2008 10/25/2008 55,967,487
10/25/2008 11/25/2008 53,405,111
11/25/2008 12/25/2008 50,905,630
12/25/2008 1/25/2009 48,468,020
1/25/2009 2/25/2009 46,091,267
2/25/2009 3/25/2009 43,774,376
3/25/2009 4/25/2009 41,516,366
4/25/2009 5/25/2009 39,316,268
5/25/2009 6/25/2009 37,173,131
6/25/2009 7/25/2009 35,086,016
7/25/2009 8/25/2009 33,053,997
8/25/2009 9/25/2009 31,076,165
9/25/2009 10/25/2009 29,151,622
Reference Number: FXNEC8279 - Amended
Citibank, N.A., New York Branch
May 26, 2006
Page 12 of 12
10/25/2009 11/25/2009 27,279,484
11/25/2009 12/25/2009 25,458,880
12/25/2009 1/25/2010 23,688,953
1/25/2010 2/25/2010 21,968,856
2/25/2010 3/25/2010 20,297,758
3/25/2010 4/25/2010 18,674,839
4/25/2010 5/25/2010 17,099,291
5/25/2010 6/25/2010 15,570,317
6/25/2010 7/25/2010 14,087,135
7/25/2010 8/25/2010 12,648,972
8/25/2010 9/25/2010 11,255,068
9/25/2010 10/25/2010 9,904,673
10/25/2010 11/25/2010 8,597,049
11/25/2010 12/25/2010 7,331,470
12/25/2010 1/25/2011 6,107,219
1/25/2011 2/25/2011 4,923,591
2/25/2011 3/25/2011 3,779,892
3/25/2011 4/25/2011 2,675,437
4/25/2011 5/25/2011 1,609,553
5/25/2011 6/25/2011 581,575
6/25/2011 Termination Date 200,331
