DATE:
February 27, 2007
TO:
Deutsche Bank Trust Company Americas, not in its individual
capacity, but
solely as Supplemental Interest Trust Trustee for the Supplemental
Interest
Trust with respect to RALI Series 2007-QO2 Trust, Mortgage
Asset-Backed
Pass-Through Certificates, Series 2007-QO2
ATTENTION:
Trust Administration
TELEPHONE:
1 714 247 6000
FACSIMILE:
1 714 855 1557
FROM:
Deutsche Bank AG, New York Branch
ATTENTION:
New York Derivatives Documentation
TELEPHONE:
1 212 250 9425
FACSIMILE:
1 212 797 0779
EMAIL:
NYderivative.documentation@db.com
OUR REFERENCE:
Global No. N577315N
RE:
Interest Rate Swap Transaction
The purpose of this
long-form
confirmation
("CONFIRMATION")
is to confirm the terms and conditions of the current
Transaction
entered into on the Trade Date specified below (the
"TRANSACTION")
between
Deutsche Bank AG, New York
Branch
("PARTY
A") and
Deutsche
Bank
Trust
Company
Americas,
not in its
individual
capacity,
but solely as
Supplemental
Interest Trust Trustee for the Supplemental
Interest Trust with respect to RALI Series 2007-QO2 Trust,
Mortgage Asset-Backed
Pass-Through
Certificates,
Series 2007-QO2 ("PARTY B" or the "SUPPLEMENTAL
INTEREST TRUST")
created under Pooling and Servicing
Agreement,
dated as of February 1, 2007, among Residential Accredit Loans,
Inc.
(the
"DEPOSITOR"),
Residential
Funding
Company,
LLC (the
"MASTER
SERVICER")
and Deutsche
Bank Trust
Company
Americas
(the
"TRUSTEE")
(the
"POOLING AND
SERVICING
AGREEMENT").
This
Confirmation
evidences a complete and
binding
agreement
between you and us to enter into the
Transaction
on the terms set forth below and
replaces any
previous
agreement
between
us
with
respect
to the
subject
matter
hereof.
This
Confirmation
constitutes
a
"CONFIRMATION"
and also constitutes a "SCHEDULE" as referred to in the ISDA Master
Agreement,
and Paragraph 13 of a
Credit Support Annex to the Schedule.
1.
This
Confirmation
shall
supplement,
form a part of, and be subject to an
agreement in the form of the
ISDA
Master
Agreement
(Multicurrency
-
Cross
Border)
as
published
and
copyrighted
in
1992 by the
International
Swaps and
Derivatives
Association,
Inc. (the "ISDA MASTER
AGREEMENT"),
as if Party A and
Party B had executed an
agreement
in such form on the date hereof,
with a Schedule as set forth in Item 3
of this
Confirmation,
and an ISDA Credit Support Annex
(Bilateral Form - ISDA
Agreements
Subject to New
York Law Only version) as published
and
copyrighted
in 1994 by the
International
Swaps and
Derivatives
Association,
Inc., with Paragraph 13 thereof as set forth in Annex A hereto (the
"CREDIT
SUPPORT
ANNEX").
For the avoidance of doubt, the Transaction
described herein shall be the sole Transaction governed by such
ISDA
Master
Agreement.
In the
event of any
inconsistency
among
any of the
following
documents,
the
relevant document first listed shall govern:
(i) this
Confirmation,
exclusive of the provisions set forth
in Item 3 hereof and Annex A hereto; (ii) the provisions set forth
in Item 3 hereof,
which are incorporated
by reference
into the Schedule;
(iii) the Credit
Support Annex;
(iv) the
Definitions;
and (v) the ISDA
Master Agreement.
Each reference herein to a "Section" (unless
specifically
referencing the Pooling and Servicing Agreement)
or to a "Section"
"of this
Agreement"
will be
construed
as a reference
to a Section of the ISDA Master
Agreement;
each herein
reference to a "Part" will be construed
as a reference
to the
provisions
herein
deemed incorporated in a Schedule to the ISDA Master Agreement;
each reference herein to a "Paragraph" will
be construed as a reference to a Paragraph of the Credit Support
Annex.
2.
The terms of the particular Transaction to which this Confirmation
relates are as follows:
Type of Transaction:
Interest Rate Swap
Notional Amount:
With respect to any Calculation
Period,
the amount set forth
on Schedule I attached hereto for such Calculation Period.
Trade Date:
February 23, 2007
Effective Date:
February 27, 2007
Termination Date:
February 25, 2012,
subject to adjustment
in accordance
with
the Business Day Convention;
provided,
however, that for the
purpose
of
determining
the
final
Floating
Rate
I
Payer
Period
End Date,
Termination
Date
shall be
subject
to No
Adjustment.
Floating Amount I:
Floating Rate I Payer:
Party B
Floating Rate I Payer
Period End Dates:
The 25th
calendar
day of each month
during the Term of this
Transaction,
commencing
March 25,
2007,
and
ending on the
Termination Date, with No Adjustment.
Floating Rate I Payer
Payment Dates:
Early
Payment
shall
be
applicable.
Each
Floating
Rate I
Payer
Payment Date shall be one (1)
Business
Day
preceding
the related Floating Rate I Payer Period End Date.
Floating Rate I Option:
The Floating
Rate I Option
(referred to as One-year
MTA) is
defined as the
twelve-month
average of the monthly
Treasury
constant
maturity
rates as published in the Federal
Reserve
Statistical
Release:
"Selected Interest
Rates / H.15".
The
twelve-month
average is
determined
by adding
together
the
constant
maturity
rates for the most
recent
twelve
months
and
dividing
by
twelve.
The
result is
rounded
up to the
nearest
one-thousandth
of one percent.
The Floating
Rate I
Option may be
determined
through
the
Bloomberg
service by
typing
"12MTA
< Index >
DES <Go >",
where
< Index >is the F10
key and < Go > is the "Enter" or "Return" key.
The Floating
Rate I Option used for each
Calculation
Period
will be the
most
recent
Floating
Rate I
Option
available
fifteen
calendar
days prior to the first day of the calendar
month in which such Calculation Period begins.
Floating Amount I:
For any Floating
Rate I Payer
Payment
Date, an amount equal
to the sum of (x)
Notional
Amount * (Floating
Rate I Option
plus 0.37%) * Floating
Rate I Payer Day Count
Fraction
plus
(y) the
Deferred Net Swap Amount for the
preceding
Floating
Rate I Payer
Payment Date plus
interest on such Deferred Net
Swap Amount accrued during the current
Calculation
Period on
such
Deferred
Net
Swap
Amount
at
a
rate
equal
to
the
Floating Rate I Option plus 0.37% per annum.
Deferred Net Swap Amount:
For any Floating Rate I Payer
Payment Date on which
Floating
Amount I is greater than
Floating
Amount II, an amount equal
to the
lesser of (a) the
excess,
if any,
of (x) the excess
of
Floating
Amount I over
Floating
Amount II,
over (y) an
amount
equal to the
Available
Distribution
Amount
for the
Distribution
Date which falls in the same
calendar
month as
such
Floating
Rate
I
Payer
Payment
Date
(in
each
case
determined
without regard to adjustment
relating to business
days) (the "related
Distribution
Date") and (b) Net Deferred
Interest for the related Distribution Date.
For any Floating Rate I Payer
Payment Date on which
Floating
Amount I is not greater than Floating Amount II, zero.
Floating Rate I Payer
Adjusted Payment
Notwithstanding
anything to the
contrary
in the
definition
of Floating
Amount I, on any
Floating
Rate I Payer
Payment
Date (other than the
Floating
Rate I Payer
Payment
Date in
February
2012) on which
Floating
Amount I exceeds
Floating
Amount
II,
the
Floating
Rate I Payer
shall
owe an amount
equal to Floating
Amount I reduced by the
Deferred
Net Swap
Amount.
Floating Rate I Day
Count Fraction:
30/360
Calculation Agent:
Party A
Floating Amount II:
Floating Rate II Payer:
Party A
Floating Rate II Payer
Period End Dates:
The 25th
calendar
day of each month
during the Term of this
Transaction,
commencing
March 25,
2007,
and
ending on the
Termination
Date,
subject to adjustment
in accordance
with
the Business Day Convention.
Floating Rate II Payer
Payment Dates:
Early
Payment
shall
be
applicable.
The
Floating
Rate II
Payer
Payment Date shall be one (1)
Business
Day
preceding
each Floating Rate II Payer Period End Date.
Floating Rate II Option:
USD-LIBOR-BBA
Designated Maturity:
One month
Floating Amount II:
Notional
Amount * Floating
Rate II Option * Floating Rate II
Day Count Fraction
Floating Rate II Day
Count Fraction:
Actual/360
Reset Dates:
The first day of each Calculation Period.
Compounding:
Inapplicable
Business Days:
New York
Business Day Convention:
Following
Calculation Agent:
Party A
3.
Provisions Deemed Incorporated in a Schedule to the ISDA Master
Agreement:
PART 1.
TERMINATION PROVISIONS.
For the purposes of this Agreement:-
(a)
"SPECIFIED ENTITY" will not apply to Party A or Party B for any
purpose.
(b)
"SPECIFIED TRANSACTION" will have the meaning specified in Section
14.
(c)
EVENTS OF DEFAULT.
The statement
below that an Event of Default will apply to a specific
party means that upon the occurrence
of such an Event of
Default
with
respect
to such
party,
the other
party
shall
have the
rights of a
Non-defaulting
Party under Section 6 of this
Agreement;
conversely,
the statement
below that such event
will not apply to a specific party means that the other party shall
not have such rights.
(i)
The
"FAILURE TO PAY OR DELIVER"
provisions
of Section
5(a)(i)
will apply to Party A and will apply to
Party B; provided,
however,
that Section
5(a)(i) is hereby amended by replacing the word "third"
with the word
"first";
provided,
further,
that
notwithstanding
anything
to the
contrary
in
Section
5(a)(i),
any failure by Party A to comply with or perform any
obligation
to be complied
with or
performed
by Party A under the Credit
Support
Annex
shall not
constitute
an Event of
Default under Section 5(a)(i) unless (A) a Required
Ratings
Downgrade Event has occurred and been
continuing
for 30 or more Local
Business
Days and (B) such
failure is not remedied on or before
the third Local Business Day after notice of such failure is given
to Party A.
(ii)
The
"BREACH OF
AGREEMENT"
provisions
of Section
5(a)(ii)
will apply to Party A and will not apply to
Party B.
(iii)
The "CREDIT SUPPORT DEFAULT"
provisions of Section
5(a)(iii) will apply to Party A and will not apply to
Party B except
that
Section
5(a)(iii)(1)
will
apply to Party B solely in
respect of Party B's
obligations
under
Paragraph
3(b)
of
the
Credit
Support
Annex;
provided,
however,
that
notwithstanding
anything
to the
contrary
in
Section
5(a)(iii)(1),
any
failure by Party A to
comply
with or perform
any
obligation
to be
complied
with or
performed
by Party A under the
Credit
Support Annex shall not constitute an Event of Default under
Section
5(a)(iii)
unless (A)
a Required
Ratings
Downgrade Event has occurred and been continuing for 30 or more
Local Business
Days and (B) such
failure is not
remedied on or before the third Local
Business Day after notice
of such failure is given to Party A.
(iv)
The
"MISREPRESENTATION"
provisions of Section 5(a)(iv) will apply to Party A and will not
apply to Party
B.
(v)
The "DEFAULT UNDER
SPECIFIED
TRANSACTION"
provisions of Section
5(a)(v) will apply to Party A and will
not apply to Party B.
(vi)
The "CROSS
DEFAULT"
provisions of Section
5(a)(vi) will apply to Party A and will not apply to Party B;
provided,
however, that,
notwithstanding the foregoing, an Event of Default shall not occur
under
either Section
5(a)(vi)(1) or Section
5(a)(vi)(2) if (A) (I) the default,
or other similar event
or
condition
referred
to in Section
5(a)(vi)(1)
or the
failure to pay
referred to in Section
5(a)(vi)(2) is a failure to pay or deliver caused by an error or
omission of an
administrative
or
operational
nature,
and (II) funds or the asset to be delivered
were
available to such party to
enable it to make the relevant
payment or delivery
when due and (III) such payment or delivery is
made within three (3) Local
Business Days
following
receipt of written notice from an interested
party of such failure to pay, or (B) such party was
precluded
from paying,
or was unable to pay,
using
reasonable
means,
through the office of the party through which it was acting for
purposes
of the relevant Specified
Indebtedness,
by reason of force majeure,
act of State,
illegality or
impossibility.
For purposes of Section 5(a)(vi), solely with respect to Party A:
"Specified
Indebtedness"
will have the
meaning
specified
in Section 14 , except that such term
shall not include
obligations in respect of deposits
received in the ordinary course of Party A's
banking business.
"Threshold
Amount"
means with
respect to Party A an amount
equal to three
percent
(3%) of the
Shareholders' Equity of Party A or, if applicable, the Eligible
Guarantor.
"Shareholders'
Equity"
means with
respect to an
entity,
at any time,
the sum (as shown in the
most
recent
annual
audited
financial
statements
of
such
entity)
of (i) its
capital
stock
(including
preferred stock)
outstanding,
taken at par value,
(ii) its capital surplus and (iii)
its retained
earnings,
minus (iv)
treasury
stock,
each to be
determined
in
accordance
with
generally accepted accounting principles.
(vii)
The
"BANKRUPTCY"
provisions of Section
5(a)(vii) will apply to Party A and will apply to Party B except
that the provisions of Section
5(a)(vii)(2),
(6) (to the extent that such provisions refer to any
appointment
contemplated or effected by the Pooling and Servicing
Agreement or any appointment to
which Party B has not become
subject),
(7) and (9) will not apply to Party B; provided that, with
respect
to Party B only,
Section
5(a)(vii)(4)
is
hereby
amended
by
adding
after
the words
"against it" the words
"(excluding
any proceeding or petition
instituted or presented by Party A
or its
Affiliates)",
and Section
5(a)(vii)(8)
is hereby
amended by deleting
the words "to (7)
inclusive" and inserting lieu thereof ", (3), (4) as amended, (5),
(6) as amended, or (7)".
(viii)
The "MERGER
WITHOUT
ASSUMPTION"
provisions of Section
5(a)(viii)
will apply to Party A and will apply
to Party B.
(d)
TERMINATION EVENTS.
The statement
below that a Termination
Event will apply to a specific party means that upon the occurrence
of such a Termination
Event, if such specific party is the Affected Party with respect to
a Tax Event,
the
Burdened
Party with respect to a Tax Event Upon Merger
(except as noted below) or the
non-Affected
Party
with
respect to a Credit Event Upon Merger,
as the case may be, such
specific
party shall have the right
to designate an Early
Termination
Date in accordance
with Section 6 of this
Agreement;
conversely,
the
statement
below that such an event will not apply to a specific
party means that such party shall not have
such right;
provided,
however,
with respect to "Illegality" the statement that such event will
apply to a
specific
party
means that upon the
occurrence
of such a
Termination
Event with
respect to such party,
either party shall have the right to designate an Early
Termination
Date in
accordance
with Section 6 of
this Agreement.
(i)
The "ILLEGALITY" provisions of Section 5(b)(i) will apply to Party
A and will apply to Party B.
(ii)
The "TAX EVENT"
provisions of Section
5(b)(ii) will apply to Party A except that, for purposes of
the
application
of Section
5(b)(ii) to Party A, Section
5(b)(ii) is hereby
amended by deleting
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)",
and the "TAX
EVENT" provisions of Section 5(b)(ii) will apply to Party B.
(iii)
The "TAX EVENT UPON MERGER"
provisions of Section
5(b)(iii)
will apply to Party A and will apply
to Party B, provided that Party A shall not be entitled to
designate an Early
Termination
Date by
reason of a Tax Event upon Merger in respect of which it is the
Affected Party.
(iv)
The "CREDIT EVENT UPON MERGER"
provisions
of Section
5(b)(iv) will not apply to Party A and will
not apply to Party B.
(e)
The
"AUTOMATIC
EARLY
TERMINATION"
provision of Section 6(a) 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,
provided,
however,
that, in the event of a Derivative
Provider
Trigger
Event, the following provisions will apply:
(A)
The
definition
of Market
Quotation
in Section 14 shall be deleted in its
entirety and
replaced with the following:
"MARKET
QUOTATION"
means,
with respect to one or more Terminated
Transactions,
a Firm
Offer 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 Replacement
Transaction,
and (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.
(B)
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) equal to:
(a)
If a
Market
Quotation
for the
relevant
Terminated
Transaction
or
group of
Terminated
Transactions
is accepted by Party B so as to become legally
binding
on or before 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 one Local
Business
Day
prior to the Early
Termination
Date (such day,
the "Latest
Settlement
Amount
Determination
Day"), the Termination
Currency Equivalent of the amount (whether
positive or negative) of such Market Quotation;
(b)
If, on 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
from
Approved
Replacements
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); or
(c)
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
Quotation from
an
Approved
Replacement
remains
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.
(C)
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.
(D)
If the Settlement Amount is a negative number,
Section 6(e)(i)(3) shall be deleted in its
entirety and replaced with the following:
"(3) Second Method and Market Quotation.
If the Second Method and Market Quotation apply,
(I) Party B shall pay to Party A an amount equal to the absolute
value of the
Settlement
Amount in respect of the
Terminated
Transactions,
(II) Party B shall pay to Party A the
Termination
Currency
Equivalent of the Unpaid Amounts owing to Party A and (III) Party A
shall pay to Party B the
Termination
Currency
Equivalent of the Unpaid Amounts owing to
Party B; provided,
however,
that (x) the amounts payable under the immediately preceding
clauses
(II) and (III) shall be subject to netting in
accordance
with
Section
2(c) of
this Agreement and (y) notwithstanding
any other provision of this Agreement,
any amount
payable by Party A under the
immediately
preceding
clause (III) shall not be netted-off
against any amount payable by Party B under the immediately
preceding clause (I)."
(E)
At any time on or before the Latest
Settlement
Amount
Determination Day at which two or
more Market
Quotations
from Approved
Replacements
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).
(ii)
The Second Method will apply.
(g)
"TERMINATION CURRENCY" means USD.
(h)
ADDITIONAL TERMINATION EVENTS.
Additional Termination Events will apply as provided in Part 5(c).
PART 2.
TAX MATTERS.
(a)
TAX REPRESENTATIONS.
(i)
PAYER REPRESENTATIONS.
For the purpose of Section 3(e) of this Agreement:
(A)
Party A makes the following representation(s):
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: 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) by reason of material
prejudice to
its legal or commercial position.
(B)
Party B makes the following representation(s):
None.
(ii)
PAYEE REPRESENTATIONS.
For the purpose of Section 3(f) of this Agreement:
(A)
Party A makes the following representation(s):
It
is
a
"foreign
person"
within
the
meaning
of
the
applicable
U.S.
Treasury
Regulations
concerning
information
reporting and backup withholding tax (as in effect
on January 1, 2001),
unless
Party A provides
written
notice to Party B that it is no
longer a foreign
person.
In
respect
of any
Transaction
it enters
into
through an
office or
discretionary
agent in the United States or which otherwise is allocated for
United
States
federal
income tax
purposes to such United
States
trade or makes the
following representation(s):
(B)
Party B makes the following representation(s):
None.
(b)
TAX PROVISIONS.
(i)
GROSS
UP.
Section
2(d)(i)(4)
shall not apply to Party B as X, and
Section
2(d)(ii)
shall not
apply to Party B as Y, in each case such that Party B shall not be
required
to pay any
additional
amounts referred to therein.
(ii)
INDEMNIFIABLE
TAX.
The
definition
of
"Indemnifiable
Tax"
in
Section
14 is
deleted
in its
entirety and replaced with the following:
"INDEMNIFIABLE
TAX"
means,
in
relation
to
payments
by Party A, any Tax and,
in
relation to
payments by Party B, no Tax.
PART 3.
AGREEMENT TO DELIVER DOCUMENTS.
(a)
For the purpose of Section 4(a)(i), tax forms, documents, or
certificates to be delivered are:
PARTY REQUIRED TO
FORM/DOCUMENT/
DATE BY WHICH TO
DELIVER DOCUMENT
CERTIFICATE
BE DELIVERED
Party A
A
correct,
complete
and
duly
executed
U.S.
(i) upon
execution of this
Agreement,
(ii)
Internal
Revenue
Service
Form W-8ECI or other
on or before
the first
payment
date
under
applicable
form
(or
successor
thereto),
this Agreement,
including any Credit Support
together
with
appropriate
attachments,
that
Document,
(iii) promptly upon the reasonable
eliminates U.S.
federal
withholding and backup
demand
by
Party
B,
(iv)
prior
to
the
withholding
Tax on
payments
to
Party A under
expiration or
obsolescence of any previously
this Agreement.
delivered
form,
and (v)
promptly
upon the
information on any such previously
delivered
form becoming inaccurate or incorrect.
Party B
Party B will
deliver at closing
completed
and
(i) upon
execution of this
Agreement,
(ii)
executed United States Internal
Revenue Service
on or before
the first
payment
date
under
Form
W-9
or
other
applicable
form
(or
any
this Agreement,
including any Credit Support
successor
thereto) with respect to any payments
Document,
(iii) promptly upon the reasonable
received
or to be
received
by Party
B,
that
demand
by
Party
A,
(iv)
prior
to
the
eliminates U.S.
federal
withholding and backup
expiration or
obsolescence of any previously
withholding
Tax on
payments
to
Party B under
delivered
form, and (v) promptly upon actual
this Agreement,
and may deliver other tax forms
knowledge
that the
information
on any such
relating to the beneficial
owner of payments to
previously
delivered
form
becoming
Party B under this Agreement from time to time.
inaccurate or incorrect.
(b)
For the purpose of Section 4(a)(ii), other documents to be
delivered (unless otherwise publicly available)
are:
PARTY REQUIRED TO
FORM/DOCUMENT/
DATE BY WHICH TO
COVERED BY
DELIVER DOCUMENT
CERTIFICATE
BE DELIVERED
SECTION 3(D)
REPRESENTATION
Party A and
Any
documents
required
by
the
Upon the execution and delivery of
Yes
Party B
receiving
party
to
evidence
the
this Agreement
authority of the delivering
party or
its Credit Support Provider,
if any,
for it to
execute
and
deliver
the
Agreement,
this
Confirmation,
and
any
Credit
Support
Documents
to
which it is a party,
and to evidence
the
authority
of
the
delivering
party or its Credit Support
Provider
to perform its obligations
under the
Agreement,
this Confirmation and any
Credit Support Document,
as the case
may be
Party A and
A certificate of an authorized
officer
Upon the execution and delivery of
Yes
Party B
of the party,
as to the incumbency and
this Agreement
authority
of the
respective
officers
of the
party
signing
the
Agreement,
this
Confirmation,
and
any
relevant
Credit
Support
Document,
as the case
may be
Party A
Annual
Report
of
Party A
containing
Promptly upon becoming publicly
Yes
consolidated
financial
statements
available
certified
by
independent
certified
public
accountants
and
prepared
in
accordance
with
generally
accepted
accounting
principles
in the
country
in which Party A is organized
Party A
Quarterly
Financial
Statements
of
Promptly upon becoming publicly
Yes
Party
A
containing
unaudited,
available
consolidated
financial
statements
of
Party A's fiscal
quarter
prepared
in
accordance
with
generally
accepted
accounting
principles
in the
country
in which Party A is organized
Party A
An
opinion
of
counsel
to
Party
A
Upon the execution and delivery of
No
acceptable
in form
and
substance
to
this Agreement
Party B
PART 4.
MISCELLANEOUS.
(a)
ADDRESS FOR NOTICES:
For the purposes of Section 12(a) of this Agreement:
Address for notices or communications to Party A:
Any notice to Party A relating to a
particular
Transaction
shall be delivered to the address or facsimile
number
specified in the Confirmation of such
Transaction.
Any notice delivered for purposes of Sections 5
and 6 (other
than
notices
under
Section
5(a)(i)
with
respect to Party A) of this
Agreement
shall be
delivered to the following address:
Deutsche Bank AG, Head Office
Taunusanlage 12
60262 Frankfurt
GERMANY
Attention:
Legal Department
Fax No:
0049 69 910 36097
(For all purposes)
Address for notices or communications to Party B:
Address:
Deutsche Bank Trust Company Americas
1761 E. St. Andrew Place
Santa Ana, CA
92705
Attention:
Trust Admin - RF0702
Tel:
714 247 6000
Fax:
714 855 1557
(For all purposes)
(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;
neither Party A nor Party B has
any
Offices
other than as set forth in the
Notices
Section
and Party A agrees
that,
for
purposes
of
Section
6(b) of this
Agreement,
it shall not in the future
have any Office
other than one in the United
States.
(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; provided,
however,
that if an Event of Default shall
have
occurred
with
respect to Party A, Party B shall
have the right to
appoint as
Calculation
Agent a
third party, reasonably acceptable to Party A, the cost for which
shall be borne by Party A.
(f)
CREDIT SUPPORT DOCUMENT.
Party A:
The Credit
Support
Annex,
and any guarantee in support of Party A's
obligations
under
this Agreement.
Party B:
The Credit Support Annex,
solely in respect of Party B's obligations under Paragraph 3(b)
of the Credit Support Annex.
(g)
CREDIT SUPPORT PROVIDER.
Party A:
The
guarantor
under any
guarantee
in
support
of Party
A's
obligations
under
this
Agreement.
Party B:
None.
(h)
GOVERNING
LAW.
The
parties
to this
Agreement
hereby
agree that the law of the State of New York shall
govern their rights and duties in whole,
without
regard to the conflict of law
provisions
thereof
other
than New York General Obligations Law Sections 5-1401 and 5-1402.
(i)
NETTING
OF
PAYMENTS.
The
parties
agree
that
subparagraph
(ii) of
Section
2(c)
will
apply to each
Transaction hereunder.
(j)
AFFILIATE.
"Affiliate"
shall have the meaning
assigned
thereto in Section 14;
provided,
however,
that
Party B shall be deemed to have no
Affiliates
for purposes of this
Agreement,
including
for purposes of
Section 6(b)(ii).
PART 5.
OTHERS PROVISIONS.
(a)
DEFINITIONS.
Unless otherwise
specified in a Confirmation,
this Agreement and each Transaction under this
Agreement
are
subject
to
the
2000
ISDA
Definitions
as
published
and
copyrighted
in
2000
by the
International
Swaps and
Derivatives
Association,
Inc. (the
"DEFINITIONS"),
and will be governed in all
relevant
respects by the
provisions set forth in the
Definitions,
without regard to any amendment to the
Definitions
subsequent to the date hereof.
The provisions of the
Definitions
are hereby
incorporated by
reference in and shall be deemed a part of this Agreement,
except that (i) references in the Definitions to
a "Swap Transaction" shall be deemed references to a "Transaction"
for purposes of this Agreement,
and (ii)
references