EXHIBIT 10.5
(Multicurrency--Cross Border)
ISDA(R)
International Swaps and Derivatives Association, Inc.
SCHEDULE
to the
Master Agreement
dated as of May 8, 2008
between JPMORGAN CHASE and ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ COMMERCIAL
BANK, N.A. MORTGAGE SECURITIES TRUST 2008-C2
("Party A") ("Party B")
PART 1: Termination Provisions
(a) (i) "Trust Agreement" means the Pooling and Servicing Agreement dated as
of May 8, 2008, among ▇.▇. ▇▇▇▇▇▇ Chase Commercial Mortgage Securities
Corp., as depositor, Midland Loan Services, Inc., as master servicer no.
1, ▇▇▇▇▇ Fargo Bank, N.A., as master servicer ▇▇. ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Management LLC, as special servicer and LaSalle Bank National Association,
as trustee and paying agent, as amended, modified, supplemented, restated
or replaced from time to time.
(ii) "Class A-4FL Certificates" means the Commercial Mortgage Pass-Through
Certificates, Series 2008-C2, Class A-4FL, issued by Party B under the
Trust Agreement.
(b) "Specified Entity" means, in relation to Party A for the purpose of:-
Section 5(a)(v) (Default under Specified none;
Transaction),
Section 5(a)(vi) (Cross Default), none;
Section 5(a)(vii) (Bankruptcy), none; and
Section 5(b)(iv) (Credit Event Upon Merger), none;
in relation to Party B for the purpose of:
Section 5(a)(v) (Default under Specified Transaction) none;
Section 5(a)(vi) (Cross Default), none;
Section 5(a)(vii) (Bankruptcy), none; and
Section 5(b)(iv) (Credit Event Upon Merger), none.
(c) "Specified Transaction" will have the meaning specified in Section 14.
(d) The "Breach of Agreement" provisions of Section 5(a)(ii), the
"Misrepresentation" provisions of Section 5(a)(iv), and the "Default under
Specified Transactions" provisions of Section 5(a)(v) will not apply to
Party B. The "Cross Default" provisions of Section 5(a)(vi) will not apply
to Party A or Party B.
(e) The "Credit Event Upon Merger" provisions of Section 5(b)(iv)
will not apply to Party A
will not apply to Party B.
(f) The "Automatic Early Termination" provision of Section 6(a)
will not apply to Party A
will not apply to Party B.
(g) Payments on Early Termination. For the purpose of Section 6(e):
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(iii) Both Party A and Party B agree that any amounts payable by Party B
to Party A under Section 6(e), if any, in connection with any Event of
Default or Termination Event will be payable only from collections on the
Trust Estate (as defined below), and only from funds, if any, remaining in
the Floating Rate Account (as defined in the Trust Agreement) after all
other amounts have been paid under the Class A-4FL Certificates (including
all principal amounts outstanding) under the Trust Agreement.
(h) "Termination Currency" means United States Dollars.
(i) Additional Termination Events. It shall be an Additional Termination
Event:
(i) if Party B fails to comply with Part 1(j) of this Schedule, in which
event Party B shall be the sole Affected Party and all Transactions shall
be Affected Transactions; or
(ii) if Party A fails to satisfy any of the requirements of Part 5(l),
within the applicable time periods set forth therein, in which event Party
A shall be the sole Affected Party and all Transactions shall be Affected
Transactions.
(j) Amendments. Party B shall deliver to Party A a copy of any proposed
amendment to the Trust Agreement, and any amendment to the Trust Agreement
that could reasonably materially and adversely affect Party A shall be
subject to Party A's prior consent.
(k) Downgrade of Party A. If a Ratings Event (as defined below) shall occur
and be continuing with respect to Party A, then Party A shall, within
10 Local Business Days of such Ratings Event, (A) give notice to Party
B of the occurrence of such Ratings Event, and (B) at Party A's option
and sole expense, (x) transfer Party A's rights and obligations under
this Agreement and all Confirmations related hereto to another party
(such party whose long term debt is being rated at least "A2" (and not
on watch for possible downgrade) by Moody's (as defined below) or rated
at least "A" by Fitch (as defined below)), subject to Rating Agency
confirmation, and at the cost of Party A, or (y) post Eligible
Collateral on a ▇▇▇▇-to-market basis to secure Party B's exposure, if
any, to Party A, and such Eligible Collateral shall be provided in
accordance with an ISDA Credit Support Annex to be entered into between
Party A and Party B in the form attached hereto as Exhibit A, which
will be attached hereto and made a part hereof within 10 Local Business
Days of Party A's election to post Eligible Collateral. The Eligible
Collateral to be posted and the Credit Support Annex to be executed and
delivered shall be subject to Rating Agency confirmation. Party A's
obligations to find an eligible transferee or to post Eligible
Collateral under such Credit Support Annex shall remain in effect only
for so long as a Ratings Event is continuing with respect to Party A.
For the purpose of this Part 1(k), a "Ratings Event" shall occur with
respect to Party A if the long-term senior unsecured deposit ratings of
Party A cease to be at least "A3" by ▇▇▇▇▇'▇ Investors Service, Inc. or
any successor thereto ("Moody's") or at least "A-" by Fitch, Inc., or
any successor thereto ("Fitch") to the extent such obligations are
rated by Moody's or Fitch.
The failure by Party A to either post Eligible Collateral or transfer its
rights and obligations to an eligible transferee in accordance herewith
shall constitute an Additional Termination Event for which Party A shall
be the sole Affected Party.
(l) Failure to Pay or Deliver. Section 5(a)(i) is hereby deleted in its
entirety and replaced with the following:
"Failure to Pay or Deliver. Failure by the party to make, when due,
any payment under this Agreement or delivery under Section 2(a)(i)
or 2(e) required to be made by it."
PART 2: Tax Representations
(a) Payer Tax Representations. For the purpose of Section 3(e) of this
Agreement, Party A 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 (x) the accuracy of any
representations made by the other party pursuant to Section 3(f) of this
Agreement, (y) 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 (z) 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 (y) and the other party does not deliver a form or document
under Section 4(a)(iii) by reason of material prejudice to its legal or
commercial position.
(b) Payee Tax Representations. For the purpose of Section 3(f) of this
Agreement, Party A and Party B will make the following representations
specified below, if any:- none
PART 3: Agreement to Deliver Documents
For the purpose of Section 4(a)(i) and (ii) of this Agreement, each party agrees
to deliver the following documents:
(a) Tax forms, documents or certificates to be delivered are:
Party required to deliver Date by which to be
document Form/Document/Certificate delivered
-------------------------- --------------------------- -------------------
Party A and Party B Any form, document or Upon request
certificate as may be
requested pursuant to
Section 4(a)(iii) of this
Agreement.
(b) Other documents to be delivered are:-
Covered by
Party required to Date by which Section 3(d)
deliver document Form/Document/Certificate to be delivered Representation
----------------- ----------------------------- --------------- --------------
Party B Statements to As soon as Yes
Certificateholders of Party B available.
Party B Certified copies of all Upon execution Yes
corporate authorizations and and delivery
any other documents with of this
respect to the execution, Agreement
delivery and performance of
this Agreement and the Trust
Agreement
Party A and Certificate of authority and Upon execution Yes
Party B specimen signatures of and delivery
individuals executing this of this
Agreement, and any Agreement and
Confirmations thereafter
upon request
of the other
party
PART 4: Miscellaneous
(a) Address for Notices. For the purpose of Section 12(a) of this Agreement:-
Address for notice or communications to Party A:
JPMorgan Chase Bank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
JPMorgan Chase Bank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Address for notice or communications to Party B:
▇.▇. ▇▇▇▇▇▇ Chase Commercial Mortgage Securities Trust 2008-C2 c/o LaSalle
Bank National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail code: IL4-135-16-25
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: LaSalle Global Trust Services, ▇.▇. ▇▇▇▇▇▇ 2008-C2
With a copy to:
LaSalle Bank National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail code: IL4-135-16-25
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: LaSalle Global Trust Services, ▇.▇. ▇▇▇▇▇▇ 2008-C2
With a copy to:
▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Commercial Mortgage Securities Corp. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
(b) Process Agent. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Not applicable.
Party B appoints as its Process Agent: Not applicable.
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10 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 B.
(f) Credit Support Document. Details of any Credit Support Document:-
Party B agrees that only the amounts with respect to the Class A-4FL
Certificates on deposit in the Floating Rate Account (as such terms are
defined in the Trust Agreement) held by the Paying Agent under the Trust
Agreement (such amounts, the "Trust Estate") shall constitute security for
the obligations of Party B to Party A under this Agreement.
Party A agrees that any ISDA Credit Support Annex entered into between
Party A and Party B pursuant to Part 1(k) hereof shall be a Credit Support
Document for purposes of this Agreement.
(g) Credit Support Provider.
Credit Support Provider means in relation to Party A: Not applicable.
Credit Support Provider means in relation to Party B: Not applicable
(h) Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York (without reference to
its conflict of laws doctrine, other than Section 5-1401 of the General
Obligations Law).
(i) Netting of Payments. All amounts payable on the same date, in the same
currency and in respect of the same Transaction shall be netted in
accordance with Section 2(c) of this Agreement. The election contained in
the last paragraph of Section 2(c) of this Agreement shall not apply for
the purposes of this Agreement.
(j) "Affiliate" will have the meaning specified in Section 14 of this
Agreement.
PART 5: Other Provisions
(a) Delivery of Confirmations. For each Transaction entered into hereunder,
Party A shall promptly send to Party B a Confirmation via facsimile
transmission. Party B agrees to respond to such Confirmation within
three (3) Local Business Days, either confirming agreement thereto or
requesting a correction of any error(s) contained therein. Failure by
Party A to send a Confirmation or of Party B to respond within such
period shall not affect the validity or enforceability of such
Transaction. Absent manifest error, there shall be a presumption that
the terms contained in such Confirmation are the terms of the
Transaction.
(b) Recording of Conversations. Each party to this Agreement acknowledges and
agrees to the tape recording of conversations between trading and
marketing personnel of the parties to this Agreement whether by one or
other or both of the parties or their agents, and that any such tape
recordings may be submitted in evidence in any Proceedings relating to
this Agreement.
(c) Furnishing Specified Information. Section 4(a)(iii) is hereby amended by
inserting "promptly upon the earlier of (i)" in lieu of the word "upon" at
the beginning thereof and inserting "or (ii) such party learning that the
form or document is required" before the word "any" on the first line
thereof.
(d) Notice by Facsimile Transmission. Section 12(a) is hereby amended by
inserting the words "2(b)," between the word "Section" and the number "5"
and inserting the words "or 13(c)" between the number "6" and the word
"may" in the second line thereof.
(e) Section 3(a) of this Agreement is amended by (i) deleting the word "and"
at the end of clause (iv); (ii) deleting the period at the end of clause
(v) and inserting therein "; and "; and (iii) by inserting the following
additional representation:
"(vi) Eligible Contract Participant. Each party represents to the other
party (which representation will be deemed to be repeated by each
party on each date on which a Transaction is entered into) that it
is an "eligible contract participant" as defined in Section 1a(12)
of the U.S. Commodity Exchange Act, 7 U.S.C. Section 1a(12)."
(f) Section 3 is revised so as to add the following Section (g) at the end
thereof:
"(g) Relationship Between Parties. Each party represents to the other
party and will be deemed to represent to the other party on the date
on which it enters into a Transaction that (absent a written
agreement between the parties that expressly imposes affirmative
obligations to the contrary for that Transaction):-
(i) Non-Reliance. It is acting for its own account, and it
has made its own independent decisions to enter into
that Transaction and as to whether that Transaction is
appropriate or proper for it based upon its own judgment
and upon advice from such 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.
Further, such party has not received from the other
party any assurance or guarantee as to the expected
results of that Transaction.
(ii) 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 that Transaction. It is also capable of assuming, and
assumes, the financial and other risks of that
Transaction.
(iii) Status of Parties. The other party is not acting as an
agent, fiduciary or advisor for it in respect of that
Transaction."
(g) Waiver of Right to Trial by Jury. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY
AND ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
(h) Non Petition. Party A hereby agrees that it will not, prior to the date
which is one year and one day after all the Class A-4FL Certificates
issued by Party B pursuant to the Trust Agreement have been paid in
full, acquiesce, petition or otherwise invoke or cause Party B to
invoke the process of any court or governmental authority for the
purpose of commencing or sustaining a case against Party B under any
federal or state bankruptcy, insolvency or similar law or for the
purpose of appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official for Party B or any
substantial part of the property of Party B, or for the purpose of
ordering the winding up or liquidation of the affairs of Party B.
Nothing herein shall prevent Party A from participating in any such
proceeding once commenced.
(i) Limited Recourse. The obligations of Party B under this Agreement are
limited recourse obligations of Party B, payable solely from amounts
remaining in the Trust Estate after payment in full of all amounts due
to the Class A-4FL Certificates, subject to and in accordance with the
terms of the Trust Agreement. No recourse shall be had for the payment
of any amount owing in respect of this Agreement against the trustee or
paying agent, or any officer, member, director, employee, security
holder or incorporator thereof (each, an "Affiliated Person") of Party
B or its successors or assigns for any amounts payable under this
Agreement. Upon application of the Trust Estate in accordance with the
Trust Agreement, Party A shall not be entitled to take any further
steps against Party B to recover any sums due but still unpaid
hereunder or thereunder, and all claims by Party A against Party B
hereunder and/or under the Trust Agreement shall be extinguished.
(j) Limitation of Liability. It is expressly understood and agreed by the
parties hereto that (a) this Agreement is executed and delivered by
LaSalle Bank National Association ("LaSalle"), not individually or
personally but solely as the trustee, in the exercise of the powers and
authority conferred and vested in it, (b) the representations,
undertaking and agreements herein made on the part of the Trust are
made and intended not as personal representations, undertakings and
agreements by LaSalle but are made and intended for the purpose of
binding only the Trust, (c) nothing herein contained shall be construed
as creating any liability on LaSalle individually or personally (other
than to act with the standard of care provided under the Trust
Agreement), to perform any covenant either expressed or implied
contained herein, all such liability, if any, being expressly waived by
the parties who are signatories to this Agreement and by any person
claiming by, through or under such parties and (d) under no
circumstances shall LaSalle be personally liable for the payment of any
indebtedness or expenses of the Trust or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the Trust under this Agreement.
(k) Transfer. Section 7 of this Agreement is supplemented by the additional
requirement that any transfer or assignment by Party A of its obligations
under this Agreement (including any Confirmation) shall be subject to
Rating Agency confirmation, and Section 9(b) of this Agreement is
supplemented by the additional requirement that any amendments to this
Agreement (including any Confirmation) shall be subject to Rating Agency
confirmation.
(l) Compliance with Regulation AB.
(i) If at any time after the date hereof for so long as Party B is
required to file periodic reports under the Securities Exchange Act of
1934, as amended (the "Exchange Act") with respect to the Certificates, in
the reasonable determination made in good faith of the Sponsors (as
defined in the Prospectus), the aggregate "significance percentage" (as
defined in Regulation AB ("Regulation AB") under the Securities Act of
1933, as amended, and the Exchange Act) of all derivative instruments
(contemplated by Item 1115 of Regulation AB) provided by Party A and any
of its affiliates to Party B is at least 10% but less than 20%, Party A
shall, subject to subparagraph (iii) below, within five (5) Business Days
following request therefor by Party B provide the financial information
required under Item 1115(b)(1) of Regulation AB for Party A (and for the
group of affiliated entities, if applicable) (the "Item 1115(b)(1)
Information"). Any such Item 1115(b)(1) Information shall be in a form
suitable for conversion to the format required for filing by the Depositor
with the Securities and Exchange Commission via the Electronic Data
Gathering and Retrieval System (▇▇▇▇▇).
(ii) If at any time after the date hereof for so long as Party B is
required to file periodic reports under the Exchange Act with respect to
the Certificates, in the reasonable determination made in good faith of
the Sponsors, the aggregate "significance percentage" of all derivative
instruments (contemplated by Item 1115 of Regulation AB) provided by Party
A and any of its affiliates to Party B is at least 20%, Party A shall,
subject to subparagraph (iii) below, within five (5) Business Days
following request therefor by Party B provide the financial information
required under Item 1115(b)(2) of Regulation AB for Party A (and for the
group of affiliated entities, if applicable) (the "Item 1115(b)(2)
Information", and together with the Item 1115(b)(1) Information, the
"Additional Information"). Any such Item 1115(b)(2) Information shall be
in a form suitable for conversion to the format required for filing by the
Depositor with the Securities and Exchange Commission via the Electronic
Data Gathering and Retrieval System (▇▇▇▇▇). In addition, any such Item
1115(b)(2) Information shall be accompanied by any necessary auditor's
consents.
(iii) If Party A is unable to provide any such Additional Information if,
as and when required, Party A shall, at its option, within ten (10)
Business Days following request therefor, (1) promptly post collateral
satisfactory to the Sponsors in an amount which is reasonably determined
in good faith to be sufficient to reduce the aggregate "significance
percentage" to (x) in the case of subparagraph (i) above, below 10%, and
(y) in the case of subparagraph (ii) above, provided Party A is able to
meet the requirements of subparagraph (i) above, below 20%, in each case
pursuant to a Credit Support Annex or similar agreement reasonably
satisfactory to the Sponsors, or (2) at the sole expense of Party A,
without any expense or liability to Party B, transfer or assign its
obligations under this Agreement to a substitute counterparty reasonably
acceptable to Party B that (x) is able to provide such Additional
Information if, as and when required, and (y) enters into an agreement
similar in form to this Agreement pursuant to which such substitute
counterparty agrees to provide the Additional Information if, as and when
required.
(iv) Party A's obligation to provide any such Additional Information shall
terminate beginning in any such year in which Party B's obligation to file
periodic reports under the Exchange Act has been terminated, and shall
continue to be terminated unless Party B notifies Party A that Party B's
obligation to file periodic reports under the Exchange Act has resumed.
Accepted and agreed:
JPMORGAN CHASE BANK, N.A. J.P. ▇▇▇▇▇▇ ▇▇▇▇▇ COMMERCIAL MORTGAGE
SECURITIES TRUST 2008-C2
By: LaSalle Bank National Association,
not in its individual capacity, but
solely as Paying Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
------------------------------------ ------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director Title: Assistant Vice President
EXHIBIT A
---------
PARAGRAPH 13 TO
CREDIT SUPPORT ANNEX
to the Schedule to the
Master Agreement
dated as of May 8, 2008
between
-------------------------------- ----------- ----------------------------------
JPMorgan Chase Bank, N.A. and ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Commercial
("▇▇▇▇▇▇") Mortgage Securities Trust 2008-C2
("Counterparty")
-------------------------------- ----------- ----------------------------------
Paragraph 13. Elections and Variables
(a) Security Interest for "Obligations". The term "Obligations" as used in
this Annex includes no additional obligations with respect to either
party.
(b) Credit Support Obligations.
(i) Delivery Amount, Return Amount and Credit Support Amount.
(A) "Delivery Amount" has the meaning specified in Paragraph 3(a).
(B) "Return Amount" has the meaning specified in Paragraph 3(b).
(C) "Credit Support Amount" shall not have the meaning specified
in Paragraph 3(b) and, instead, will have the following
meaning:
"Credit Support Amount" means, for any Valuation Date, (i) the
Secured Party's Modified Exposure for that Valuation Date minus (ii)
the Pledgor's Threshold; provided, however, that the Credit Support
Amount will be deemed to be zero whenever the calculation of Credit
Support Amount yields a number less than zero.
(ii) Eligible Collateral. The following items will qualify as "Eligible
Collateral":
-------- ------------------------------------------ ---------- -------------
▇▇▇▇▇▇ "Valuation
Percentage"
-------- ------------------------------------------- --------- -------------
(A) USD Cash X 100%
-------- ------------------------------------------- --------- -------------
(B) Negotiable debt obligations issued by the X 98.8%
U.S. Treasury Department having a
remaining maturity of one year or less
from the Valuation Date
-------- ------------------------------------------- --------- -------------
(C) Negotiable debt obligations issued by the X 92%
U.S. Treasury Department having a
remaining maturity of more than one year
but less than ten years from the
Valuation Date
-------- --- --------------------------------------- --------- -------------
(D) Negotiable debt obligations issued by the X 84%
U.S. Treasury Department having a
remaining maturity of ten years or more
from the Valuation Date
-------- ------------------------------------------- --------- -------------
(E) Agency Securities having a remaining X 98.4%
maturity of one year or less from the
Valuation Date
-------- ------------------------------------------- --------- -------------
(F) Agency Securities having a remaining X 90%
maturity of more than one year but less
than ten years from the Valuation Date
-------- ------------------------------------------- --------- -------------
(G) Agency Securities having a remaining X 82%
maturity of ten years or more from the
Valuation Date
-------- ------------------------------------------- --------- -------------
(H) USD denominated Commercial Paper rated X 97%
A1/P1 by S&P and Moody's respectively,
that (a) settles within DTC, (b) is not
issued by ▇▇▇▇▇▇ or any of its Affiliates
and (c) has a remaining maturity of 30
days or less from the Valuation Date
-------- ------------------------------------------- --------- -------------
For purposes of the foregoing:
(1) "Agency Securities" means negotiable debt obligations which are
fully guaranteed as to both principal and interest by the Federal
National Mortgage Association, the Government National Mortgage
Association or the Federal Home Loan Mortgage Corporation, but
excluding (i) interest only and principal only securities and (ii)
Collateralized Mortgage Obligations, Real Estate Mortgage Investment
Conduits and similar derivative securities.
(2) "DTC" shall mean The Depository Trust & Clearing Corporation, or
its successor.
(3) "Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc., or its
successor.
(4) "S&P" shall mean Standard & Poor's Ratings Services, a division
of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or its successor.
(5) Eligible Collateral of the type described in Paragraph
13(b)(ii)(H) may never constitute more than 20% of the total Value
of Posted Collateral.
(6) With respect to Posted Collateral consisting of Eligible
Collateral of the type described in Paragraph 13(b)(ii)(H), the
aggregate Value of such Posted Collateral issued by the same issuer
may never be greater than 33% of the aggregate Value of all Posted
Collateral consisting of Eligible Collateral of the type described
in Paragraph 13(b)(ii)(H).
(7) "Fitch" shall mean Fitch, Inc., or its successor.
(iii) Other Eligible Support. There shall be no "Other Eligible Support"
for purposes of this Annex, unless agreed in writing between the parties.
(iv) Thresholds.
(A) "Independent Amount" means zero.
(B) "Threshold" shall not apply with respect to the Counterparty
and, with respect to ▇▇▇▇▇▇, shall mean the amounts determined
on the basis of the lower of the Credit Ratings set forth in
the following table, provided, however, that if (i) ▇▇▇▇▇▇ has
no Credit Rating, or (ii) an Event of Default has occurred and
is continuing with respect to ▇▇▇▇▇▇, Morgan's Threshold shall
be U.S.$0:
CREDIT RATING THRESHOLD
(Moody's/Fitch) ▇▇▇▇▇▇
----------------------------- -------------------
Moody's: A3 or above Infinity
Fitch: A- or above
----------------------------- -------------------
Moody's: Below A3 US$0
Fitch: Below A-
----------------------------- -------------------
As used herein:
"Credit Rating" means, with respect to (a) Moody's, the rating
assigned by Moody's to the short-term and long-term senior unsecured
deposits of ▇▇▇▇▇▇ or (b) Fitch, the rating assigned by Fitch to the
short-term and long-term senior unsecured deposits of ▇▇▇▇▇▇, as
applicable.
(C) "Minimum Transfer Amount", with respect to a party on any
Valuation Date, means U.S. $250,000.
(D) Rounding. The Delivery Amount and the Return Amount will be
rounded up and down to the nearest integral multiple of
$100,000, respectively.
(c) Valuation and Timing.
(i) "Valuation Agent" means ▇▇▇▇▇▇.
(ii) "Valuation Date" means weekly on the last Local Business Day of each
week or more frequently if agreed in writing by the parties.
(iii) "Valuation Time" means the close of business in the city of the
Valuation Agent on the Valuation Date or date of calculation, as
applicable.
(iv) "Notification Time" means 12:00 p.m., New York time, on a Local
Business Day.
(d) Conditions Precedent. With respect to ▇▇▇▇▇▇, any Additional Termination
Event (if ▇▇▇▇▇▇ is the Affected Party with respect to such Termination
Event) will be a "Specified Condition".
(e) Substitution.
(i) "Substitution Date" has the meaning specified in Paragraph 4(d)(ii).
(ii) Consent. Inapplicable.
(f) Dispute Resolution.
(i) "Resolution Time" means 1:00 p.m., New York time, on the Local
Business Day following the date on which the notice is given that gives
rise to a dispute under Paragraph 5.
(ii) Value. For the purposes of Paragraphs 5(i)(C) and 5(ii), the Value of
Posted Credit Support other than Cash will be calculated as follows:
(A) with respect to any Eligible Collateral except Cash, the sum
of (I) (x) the mean of the high bid and low asked prices
quoted on such date by any principal market maker for such
Eligible Collateral chosen by the Disputing Party, or (y) if
no quotations are available from a principal market maker for
such date, the mean of such high bid and low asked prices as
of the first day prior to such date on which such quotations
were available, plus (II) the accrued interest on such
Eligible Collateral (except to the extent Transferred to a
party pursuant to any applicable provision of this Agreement
or included in the applicable price referred to in (I) of this
clause (A)) as of such date; multiplied by the applicable
Valuation Percentage.
(iii) Alternative. The provisions of Paragraph 5 will apply.
(g) Holding and Using Posted Collateral.
(i) Eligibility to Hold Posted Collateral; Custodians. Counterparty and
its Custodian will be entitled to hold Posted Collateral pursuant to
Paragraph 6(b); provided that the following conditions applicable to it
are satisfied:
(1) Counterparty is not a Defaulting Party and
(2) Posted Collateral may be held only in the following
jurisdictions:
New York State.
Initially, the Custodian for Counterparty is: None
(ii) Use of Posted Collateral. The provisions of Paragraph 6(c)(i) will
not apply to Counterparty but the provisions of Paragraph 6(c)(ii) will
apply to the Counterparty.
(h) Distributions and Interest Amount.
(i) Interest Rate. "Interest Rate" for any day means, the Federal Funds
Overnight Rate. For the purposes hereof, "Federal Funds Overnight Rate"
means, for any day, an interest rate per annum equal to the rate published
as the Federal Funds Effective Rate that appears on Telerate Page 118 for
such day.
(ii) Transfer of Interest Amount. The Transfer of the Interest Amount will
be made monthly on the second Local Business Day of each calendar month.
(iii) Alternative to Interest Amount. The provisions of Paragraph 6(d)(ii)
will apply.
(i) Additional Representation(s). Not Applicable.
(j) Other Eligible Support and Other Posted Support.
(i) "Value" with respect to Other Eligible Support and Other Posted
Support means: Not Applicable.
(ii) "Transfer" with respect to Other Eligible Support and Other Posted
Support means: Not Applicable
(k) Demands and Notices.
All demands, specifications and notices under this Annex will be made pursuant
to the Notices Section of this Agreement, unless otherwise specified here:
Counterparty: LaSalle Bank National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail code: IL4-135-16-25
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: LaSalle Global Trust Services,
▇.▇. ▇▇▇▇▇▇ 2008-C2
▇▇▇▇▇▇: JPMorgan Chase Bank, National Association
Collateral Middle Office Americas 3/OPS2
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
(l) Other Provisions:
(i) Modification to Paragraph 1: The following subparagraph (b) is
substituted for subparagraph (b) of this Annex:
(b) Secured Party and Pledgor. All references in this Annex to the
"Secured Party" will be to Counterparty and all corresponding references
to the "Pledgor" will be to ▇▇▇▇▇▇.
(ii) Modification to Paragraph 2: The following Paragraph 2 is substituted
for Paragraph 2 of this Annex:
Paragraph 2. Security Interest. The Pledgor hereby pledges to the
Secured Party, as security for its Obligations, and grants to the
Secured Party a first priority continuing security interest in, lien
on and right of Set-Off against all Posted Collateral Transferred to
or received by the Secured Party hereunder. Upon the Transfer by the
Secured Party to the Pledgor of Posted Collateral, the security
interest and lien granted hereunder on that Posted Collateral will
be released immediately and, to the extent possible, without any
further action by either party.
(iii) Modification to Paragraph 9: The following first clause of Paragraph
9 is substituted for the first clause of Paragraph 9 of this Annex:
Paragraph 9. Representations. The Pledgor represents to the Secured Party
(which representations will be deemed to be repeated as of each date on
which it Transfers Eligible Collateral) that:
(iv) Modifications to Paragraph 12: The following definitions of "Pledgor"
and "Secured Party" are substituted for the definitions of those terms
contained in Paragraph 12 of this Annex:
"Pledgor" means ▇▇▇▇▇▇, when that party (i) receives a demand for or is
required to Transfer Eligible Credit Support under Paragraph 3(a) or (ii)
has Transferred Eligible Credit Support under Paragraph 3(a).
"Secured Party" means Counterparty, when that party (i) makes a demand for
or is entitled to receive Eligible Credit Support under Paragraph 3(a) or
(ii) holds or is deemed to hold Posted Credit Support.
(v) Addition to Paragraph 12: The following definitions of "Modified
Exposure" shall be added immediately after the definition of the term
"Minimum Transfer Amount" and immediately prior to the definition of the
term "Notification Time" in Paragraph 12 of this Annex:
"Modified Exposure" means, for any Valuation Date, an amount equal to the
sum of (i) the greater of USD 0 and the Secured Party's Exposure for that
Valuation Date and (ii) the sum of the Volatility Buffers determined by
the Valuation Agent with respect to each Transaction subject to this
Agreement. As used herein:
"Volatility Buffer" means, with respect to a Transaction, an amount equal
to the product of (a) the Factor applicable to the Transaction and (b) the
Notional Amount of the Transaction.
"Factor" means, with respect to a Transaction, a percentage dependent on
▇▇▇▇▇▇'▇ Counterparty Rating by Moody's, as applicable, and the original
maturity of the Transaction and determined by the Valuation Agent by
reference to the following table:
Counterparty Maturities up Maturities up Maturities
Rating (Moody's) to 5 years (%) to 10 years (%) up to 30 years (%)
---------------- -------------- --------------- ------------------
P-2 3.25 4.00 4.75
---------------- -------------- --------------- ------------------
P-3 4.00 5.00 6.25
---------------- -------------- --------------- ------------------
Ba1 or lower 4.50 6.75 7.50
---------------- -------------- --------------- ------------------
Modification to Paragraph 12: Clause "(B)" of the definition of "Value"
will be substituted to read in its entirety as follows:
"(B) a security, the bid price obtained by the Valuation Agent from one of
the Pricing Sources multiplied by the applicable Valuation Percentage, if
any;"
(vi) Addition to Paragraph 12: The following definition of "Pricing
Sources" shall be added immediately after the definition of the term
"Posted Credit Support" and immediately prior to the definition of the
term "Recalculation Date" in Paragraph 12 of this Annex:
"Pricing Sources" means the sources of financial information commonly
known as Bloomberg, Bridge Information Services, Data Resources Inc.,
Interactive Data Services, International Securities Market Association,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Securities Pricing Service, ▇▇▇▇▇▇ Data Corporation,
Reuters, Wood Gundy, Trepp Pricing, ▇▇ ▇▇▇▇▇, S&P and Telerate.
Accepted and Agreed:
JPMORGAN CHASE BANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ COMMERCIAL
MORTGAGE SECURITIES TRUST 2008-C2
By: LaSalle Bank National Association, not in its individual
capacity, but solely as Paying Agent
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
