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September, 2010
Monsoon Sunrise
 Monsoon Sunrise
Interest Rate Swap
Client Spotlight
Attorney Spotlight
Interest Rate Swaps
 . Overview
Client Spotlight
Margrave Celmins has represented Michaels Wilder, Inc. for practically their entire business life.  Now located in Peoria after 21 years in business, they have grown to thirty-plus team members, in three offices, in three states.  They have been a yellow pages Certified Marketing Representative (CMR) for over 20 years.  The CMR designation must be earned and is awarded by the yellow pages publishers after a rigorous review.  Michaels Wilder represents a blend of small, medium and large companies ranging from the single self-storage operator to U. S. Airways. 

Michaels Wilder delivers unsurpassed expertise and results for their clients and has earned several awards in the industry, including the "2009 Top Performer Award" from SuperMedia, an accolade given to the number one performing yellow page agency (CMR) in the entire U.S. 

Over the years, Michaels Wilder has developed an impressive network of resources, identified superior technology, and created novel ideas that give clients a critical edge over their competition.  In 1999, they formed the Talent Acquisition and Retention Division, a consulting arm that offers a buffet of services designed to help clients acquire and retain the very best "A" level talent
their business.  Michaels Wilder brings a strategic perspective and approach to maximizing an overall Human Resource program by going beyond the fundamentals into the future of HR.  From discovery to delivery, the goal of their business approach is to become a true business partner, and their aim is to assist in evaluating the role of HR in a company and create systems that deliver peak performance and sustainable value for the organization. 

In 2008, Michaels Wilder began offering Marketing Services. Since their clients had been requesting those services and they had the talent, expertise and resources, it was a natural evolution.  The primary goal of this Marketing Service Division is to generate quality business leads for clients.  By developing the appropriate media mix and marketing strategy for particular product requirements, they offer the opportunity to generate new leads and potential new revenue. 

Their latest line of business, launched in 2008, is their sister company: Storage Property Protection.  Storage Property Protection provides coverage for tenants storing their property at self-storage facilities all across the U.S.  They incubated this product in Arizona for just over a year and were officially approved by Arizona's insurance commission to launch nationwide on August 1, 2010. 

They welcome all inquiries. Contact Harry Sleighel at or Shelly Little at
Harry Sleighel
Attorney Spotlight 
Of counsel with the firm since 1991, Michael P. Upshaw works with individuals and companies, including representation of companies wishing to do business with Indian tribes, as well as representing various Indian tribes, their entities and enterprises.                Michael is a former Attorney General of the Navajo Nation and has also acted in capacities of General Counsel and Special Counsel to other Indian Nations in Arizona and New Mexico in the areas of government services, business transactions, federal land exchanges, economic development and gaming matters.  He also served as Chairman of the Indian Law Section of the State Bar of Arizona.   

We recognize the importance of our clients' trust, and keeping our clients' information confidential is a high priority.  We do not disclose any personal information about our clients.  Lawyers have been and continue to be bound by professional standards of confidentiality. 

We will never share, sell or rent individual personal information with anyone.  Information submitted to us is only available to employees managing this information for purposes of contacting you or sending you emails based on your request for information, and to contracted service providers relating to our communications with you. 

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Margrave Celmins, P.C.
8171 E. Indian Bend Rd., #101
Scottsdale, Arizona 85250
This month we feature an article providing an overview of interest rate swaps and how they can be utilized in the business setting.  While not for everyone, they can prove to be a valuable tool in certain business scenarios.  We are also featuring Michaels Wilder Inc., another long-standing client, and introducing Michael Upshaw, who has significant expertise in Indian law matters.
Our website is being updated with new information, photographs and graphics, and we hope to announce its readiness next month.  We look forward to sharing our revised website with you. 

As always, if you see something a friend or business associate might find useful, please feel free to forward this newsletter to them.  And if you have any thoughts to share, please contact our editor Patty Copeland at
Michael Margrave
Margrave Celmins, P.C.


There has been a lot of criticism of late about financial derivatives and how they played a role in inflicting substantial damage on the economy. There has even been legislation recently enacted  back in Washington for regulating derivatives to a degree.  What is a derivative? A derivative is a financial product that is said to derive from an underlying market dealing with currency, interest rates, equities and the like. Contrary to popular belief, maybe not all derivatives are bad, and some may be quite useful.
We had an opportunity recently to assist a client who was concerned about rising interest rates in the future in connection with a sizable real estate loan with a variable interest rate. The client wanted some protection against a drastic rise in future rates that would negatively impact the transaction and cash flow. So the client went to its bank and in connection with obtaining the real estate loan at the going commercial rate, it also entered into an interest rate swap agreement with its lender in an effort to protect itself against future rate increases over a period of time. While the notional amount under the interest rate swap agreement often equals the principal amount under the loan agreement, there is no mandate that it must do so. And the bank's client can enter into a swap agreement for a portion of the loan balance, thereby making it partially fixed with the balance floating.

OverviewOverview of How It Works 

How does such a transaction work? Here is a very short and simple overview of what is involved and what some of the inherent risks are. The borrower goes to its bank and is offered a floating rate loan for, say, a twenty year term on a real estate project. The bank's customer is concerned that with government spending as it is and the likelihood of inflation as the economy recovers, it has financial exposure to a substantially higher floating interest rate down the road that would negate all of its cash flow projections and the economics of its deal. So in order to "hedge" its risk, the borrower asks its bank if they can offer an interest rate swap transaction on a notional principal amount that would mirror the actual principal amount borrowed under the loan documents. The bank says it can accommodate its customer's needs.
This swap transaction is really an exchange of cash flows whereby the borrower agrees to pay the bank a fixed-rate interest amount pursuant to that swap agreement while the bank commits to pay its borrowing customer a floating rate on the notional principal amount. So in principle, the borrower has effectively swapped its variable or floating rate for a fixed rate. The negotiated fixed rate is going to reflect what the market expects the floating rate, on average, to be in the future. While in the beginning the net interest payable under the two transactions will favor the bank under the scenario outlined above, over time that trend would likely reverse under the rising interest rate scenario so that downstream the payments would favor the borrowing customer. The anticipated result is that over time, the borrower will be able to average out its interest costs and enable it to have more predictable financial results.

In a simple example which assumes a lower variable rate of interest at the present time, the bank's customer pays its bank the lower variable rate of interest under its real estate loan agreement. Under the swap agreement, the customer will pay its bank additional moneys representing the difference between the higher fixed and lower variable rates of interest as long as the fixed rate exceeds the variable rate. Five years down the road and assuming that the variable rate of interest has by then substantially increased, the bank would be paying its customer under the swap agreement the difference between the then-higher variable rate and the then-lower fixed rate. So this swap transaction is really geared to enable the bank's customer to manage its interest rates. 
$10 Million Loan Example 

10 Year Term Swap (7.00% Fixed Rate, 25 yr Amortization)

Swap Early Termination Estimates  (thousands)

ReplacementYears Remaining to Maturity
 Swap Rate8yrs5yrs3yrs1yr
8.50 820  530 330 110
8.00 560  360 220    80
7.50 280  180 110    40
6.50 (300)  (180) (110)  (40)
6.00 (600)  (380) (230)  (80)
5.50 (920)  (570) (340)(120)Swap
DocumentationDocumentation Involved
What sort of documentation is involved to do an interest rate swap agreement?  In addition to the documentation for the traditional loan transaction, the swap transaction contains several well-defined components to the overall transaction. The basic document is the International Swap Dealers Association (ISDA) 1992 Master Agreement, which contains many standard and non-negotiable terms. Attached to this agreement is the ISDA Schedule to the Master Agreement, which contains more particulars to the specific transaction and which options and quotations will apply to the particular transaction. Finally there is the Confirmation of Swap Transaction which sets out specific financial terms applicable to the transaction at hand.
RisksRisks to the Borrower 

Are there any risks for the borrower? Yes, as in any financial transaction, there are some risks to consider. One risk is whether the customer's bank will be able to financially perform its end of the bargain. If it isn't, the borrower should not necessarily expect the FDIC to pick up the terms of the swap agreement as no government entity is obligated to insure that derivative obligation. If, in the example above, the future variable interest rates go down instead of up, the borrower may wind up owing the bank more money than anticipated. Under that scenario, the bank's customer would be paying the variable rate of interest under the loan documents and also the difference between the higher fixed rate and the lower variable rates of interest.  
Also, following the example above, if the borrower wants to dispose of the property and pay off the loan prior to the expiration of the term, it is not relieved of its financial responsibility under the swap agreement, which will require a buyout payment under the terms of the interest rate swap agreement. Depending on then-applicable interest rates at the time of prepayment, the customer may owe the bank a sizeable fee or the customer may have an amount owing from the bank. There may also be a termination or default event which occurs, which will also mandate a calculation of the termination amount payable by or payable to the borrower. Since the interest rate swap agreement is cross-defaulted and cross-collateralized with the underlying loan transaction, a borrower needs to be aware of all possible ramifications of entering into an interest rate swap agreement.
While it is beyond the scope of this article to present a comprehensive analysis, a schedule is attached that demonstrates the implications of what might occur upon a termination of the interest rate swap agreement by the counter party because of some default or termination event that occurs. The schedule shows what cost the defaulting party would have to pay or would be entitled to receive as a termination payment depending on the replacement swap rate applicable at that time of default or termination event as compared to the fixed rate of interest and how many years until maturity. Replacement swap rates greater than the fixed rate of interest will impose an additional obligation on the borrower, while a replacement swap rate less than the fixed rate of interest would entitle the borrower (who may be in default) to receive an amount of money depending on the rate difference and the years to maturity.
At the end of the day, the interest rate swap agreement can be an effective tool if used properly to even out a borrower's long term interest costs. While there are risks in any decision of this nature, if one listens to the economists, one could conclude that at some point down the road, interest rates will be going up, meaning now may be a time to explore if this is a viable and appropriate tool to utilize. And is this tool only available for big dollar loans? No, it can be utilized efficiently with loan amounts as low as $1 million.

We would like to thank Andrew Tetlow, CPA, Manager of Interest Rate Risk Products at Mutual of Omaha Bank for his input and assistance. Andrew may be reached at
Michael W. Margrave,, who is also a Certified Public Accountant, practices company and Real Estate law, as well as business acquisition and disposition transactions, and estate planning.
About Our Law Firm 

Margrave Celmins is a member of LawPact, which is an association of independent, business-oriented law firms in the U.S. and overseas.  Currently there are 52 member firms.  This is a terrific resource for clients who have legal matters in other states and abroad.  There are 30 states and 22 countries represented by member firms throughout Europe and in Canada, Mexico, Brazil, Argentina and India.


Margrave Celmins, P.C.

8171 E. Indian Bend Rd., #101

Scottsdale, Arizona   85250



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