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 9 May 2007
between
▇▇▇▇▇ FARGO BANK, N.A., not in its
individual or corporate capacity
but solely as Trustee on behalf of
CREDIT SUISSE INTERNATIONAL and CREDIT SUISSE COMMERCIAL MORTGAGE
TRUST 2007-C2
----------------------------- ----------------------------------
("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 "1:00 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).
20
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 May
2007 among Credit Suisse First Boston Mortgage Securities
Corp., as Depositor, KeyCorp Real Estate Capital Markets, Inc.,
as Master Servicer No. 1, Wachovia Bank, National Association,
as Master Servicer No. 2, ING Clarion Partners, LLC, as Special
Servicer, and ▇▇▇▇▇ Fargo Bank, N.A., as Trustee for the Trust,
as amended and supplemented from time to time.
(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
21
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.
22
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.
23
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 deliver document Form/Document/Certificate Date by which to be delivered
---------------------------------- --------------------------------- ---------------------------------------------
Party A U.S. Internal Revenue Service (i) Before the first Payment Date under
Form W-8IMY and any successor this Agreement, such form to be updated at
form thereto the beginning of each succeeding three-
calendar-year period after the first payment
date under his 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 to be Covered by
required to Section 3(d)
deliver Representation
document
-------------- ------------------------------------------------------------------- ------------------- ------------------
Party A and Evidence reasonably satisfactory to the other party as to the Upon execution of Yes
Party B names, true signatures and authority of the officers or this Agreement and,
officials signing this Agreement orany 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 As soon as No
Pooling 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.
-------------- ------------------------------------------------------------------- ------------------- ------------------
24
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 Management;
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (2) Managing Director -
England 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.: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Attention: Managing Director - Legal Department
Telephone number for oral confirmation of receipt of facsimile in
legible form: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ 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-C2
c/o Wells Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
Attn: Corporate Trust Services - CSMC 2007-C2
Telephone: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
With copies to:
Credit Suisse Securities (USA) LLC
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
(b) Process Agent. For the purposes of Section 13(c) of this Agreement:
Party A appoints as its Process Agent:
25
Credit Suisse Securities (USA) LLC
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
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).
26
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 ▇▇▇▇▇'▇ 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 ▇▇▇▇▇▇-▇▇▇▇ 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
27
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
28
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 ▇▇▇▇▇'▇ 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
29
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.
30
(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: 9395708N3 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.
31
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
▇▇▇▇▇ Fargo Bank, N.A. (the Trustee) not individually or personally
but solely as trustee of Credit Suisse Commercial Mortgage Trust
2007-C2 (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;
32
(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
33
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, ▇▇▇▇▇'▇ 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.
34
(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(d) of the Pooling and Servicing
Agreement.
For the avoidance of doubt, in the event the Master Servicers fail
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 Servicers 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-C2 (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.
35
(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:
36
"(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
37
(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.
38
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 ▇▇▇▇▇ Fargo Bank, N.A., not in its individual
capacity but solely as Trustee on behalf of
Credit Suisse Commercial Mortgage Trust
2007-C2
By: /s/ Marisa Scazillo By:
------------------------------ ------------------------------
Name: Marisa Scazillo Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory Title: Vice President
By: /s/ ▇▇▇▇▇ Hyrniuk
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
CSMC 2007-C2 Schedule
39
