Common use of Cap Agreement Clause in Contracts

Cap Agreement. The Cap Supplemental Interest Trust Trustee shall deposit any amounts received from time to time with respect to the Cap Agreement into the Cap Contract Reserve Fund. The Cap Supplemental Interest Trust Trustee shall prepare and deliver any notices required to be delivered under the Cap Agreement. The Cap Provider shall act as calculation agent and/or shall terminate the Cap Agreement, in each case upon the occurrence of certain events of default or termination events to the extent specified in or pursuant to the Cap Confirmation. Upon any such termination, the Cap Provider will be obligated to pay the Cap Supplemental Interest Trust Trustee for the benefit of the Certificateholders an amount in respect of such termination. Any amounts received by the Cap Supplemental Interest Trust Trustee in respect of such termination shall be deposited and held in the Cap Contract Reserve Fund to pay Unpaid Realized Loss Amounts and Net Rate Carryover on the Classes of Offered Certificates as provided in Section 4.11 hereof on the Distribution Dates following such termination to and including the Cap Agreement Scheduled Termination Date. On the Cap Agreement Scheduled Termination Date, after all other distributions to be made on such date have been made pursuant to the terms of this Agreement, if any such amounts received by the Cap Supplemental Interest Trust Trustee with respect thereto in respect of such termination remain in the Cap Contract Reserve Fund, such amounts shall be distributed by the Securities Administrator to the Holder of the Class C Certificate. The Cap Provider shall be an express third-party beneficiary of this Agreement to the extent of its express rights to receive any payments under this Agreement or any other express rights of each Cap Provider explicitly stated in this Agreement, and shall have the right to enforce such rights under this Agreement as if it were a party hereto. In the event that the Cap Provider fails to perform any of its obligations under the Cap Agreement (including, without limitation, its obligation to make any payment or transfer collateral), or breaches any of its representations and warranties thereunder, or in the event that any Event of Default, Termination Event, or Additional Termination Event (each as defined in the Cap Agreement) occurs with respect to the Cap Agreement, the Cap Supplemental Interest Trust Trustee shall, promptly following actual notice of such failure, breach or event, notify the Depositor and send any notices and make any demands, on behalf of the Cap Supplemental Interest Trust, required to enforce the rights of the Cap Supplemental Interest Trust under the Cap Agreement. In the event that the Cap Provider’s obligations are guaranteed by a third party under a guaranty relating to the Cap Agreement (such guaranty the “Cap Guaranty” and such third party the “Cap Guarantor”), then to the extent that the Cap Provider fails to make any payment by the close of business on the day it is required to make payment under the terms of the Cap Agreement, the Cap Supplemental Interest Trust Trustee shall, promptly following actual notice of the Cap Provider’s failure to pay and provided that the Cap Supplemental Interest Trust Trustee shall have been notified of the Cap Guaranty made by the Cap Guarantor in favor of the Cap Provider, demand that the Cap Guarantor make any and all payments then required to be made by the Cap Guarantor pursuant to such Cap Guaranty; provided, that the Cap Supplemental Interest Trust Trustee shall in no event be liable for any failure or delay in the performance by the Cap Provider or any Cap Guarantor of its obligations hereunder or pursuant to the Cap Agreement and the Cap Guaranty, nor for any special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) in connection therewith. Upon a Cap Early Termination (as defined in the Cap Agreement) of the cap other than in connection with the optional termination of the Trust Fund, the Cap Supplemental Interest Trust Trustee will use reasonable efforts to appoint a successor cap provider, selected by the Depositor, to enter into a new cap agreement on terms substantially similar to the Cap Agreement, with a successor cap provider meeting all applicable eligibility requirements. If the Cap Supplemental Interest Trust Trustee receives a Cap Termination Payment (as defined in the Cap Agreement) from the Cap Provider in connection with such Cap Early Termination, the Cap Supplemental Interest Trust Trustee will apply such cap Termination Payment to any upfront payment required to appoint the successor cap provider. If the Cap Supplemental Interest Trust Trustee is unable to appoint a successor cap provider, selected by the Depositor, within 30 days of the cap Early Termination, then the Cap Supplemental Interest Trust Trustee will deposit any Cap Termination Payment received from the original Cap Provider into a separate, non-interest bearing reserve account and will, on each subsequent Distribution Date, withdraw from the amount then remaining on deposit in such reserve account an amount equal to the net cap payment (as determined pursuant to the Cap Agreement), if any, that would have been paid to the Cap Supplemental Interest Trust Trustee by the original Cap Provider calculated in accordance with the terms of the original Cap Agreement, and distribute such amount in accordance with the terms of the Agreement.

Cap Agreement. (a) The Depositor hereby directs the Securities Administrator to execute and deliver on behalf of the Supplemental Interest Trust the Cap Agreement and authorizes the Securities Administrator to perform its obligations as Supplemental Interest Trust Trustee thereunder on behalf of the Supplemental Interest Trust in accordance with the terms of the Cap Agreement. The Depositor hereby authorizes and directs the Securities Administrator to ratify on behalf of the Supplemental Interest Trust, as the Supplemental Interest Trust’s own actions, the terms agreed to by the Depositor in relation to the Cap Agreement, as reflected in the Cap Agreement, and the Securities Administrator hereby so ratifies the Cap Agreement. The Supplemental Interest Trust Trustee shall deposit have no responsibility for the contents of such Cap Agreement, including, without limitation, the representations and warranties contained therein. Notwithstanding anything to the contrary contained herein or in the Cap Agreement, neither the Supplemental Interest Trust Trustee nor the Securities Administrator shall be required to make any amounts received payments from time its own funds to time the Cap Provider. If based upon a notice from the valuation agent pursuant to section 4(c) of the credit support annex, the Securities Administrator determines that a delivery amount exists, then the Securities Administrator shall demand such amount pursuant to section 3(a) of the credit support annex. The Securities Administrator shall amend the Cap Agreement in accordance with respect its terms and as requested in writing by a party to the Cap Agreement into to cure any ambiguity in or correct or supplement any provision of, the Cap Contract Reserve FundAgreement; provided, however, that any such amendment will not have a material adverse effect to a Certificateholder as evidenced by a written confirmation from each Rating Agency that such amendment would not result in the reduction or withdrawal of the then current ratings of any outstanding Class of Certificates. The Cap Supplemental Interest Trust Trustee Agreement shall prepare and deliver not be part of any notices required to be delivered under the Cap AgreementREMIC. The Cap Provider shall act as is the calculation agent and/or shall terminate under the Cap Agreement, in each case upon the occurrence of certain events of default or termination events to the extent specified in or Agreement and shall calculate all amounts pursuant to the Cap Confirmation. Upon any Agreement and notify the Securities Administrator of all such termination, the Cap Provider will be obligated to pay the Cap Supplemental Interest Trust Trustee for the benefit of the Certificateholders an amount in respect of such termination. Any amounts received by the Cap Supplemental Interest Trust Trustee in respect of such termination shall be deposited and held in the Cap Contract Reserve Fund to pay Unpaid Realized Loss Amounts and Net Rate Carryover on the Classes of Offered Certificates as provided in Section 4.11 hereof on the Distribution Dates following such termination to and including the Cap Agreement Scheduled Termination Date. On the Cap Agreement Scheduled Termination Date, after all other distributions to be made on such date have been made pursuant to the terms of this Agreement, if any such amounts received by the Cap Supplemental Interest Trust Trustee with respect thereto in respect of such termination remain in the Cap Contract Reserve Fund, such amounts shall be distributed by amounts. (b) The Depositor hereby directs the Securities Administrator to the Holder of the Class C Certificate. The Cap Provider shall be an express third-party beneficiary of this Agreement to the extent of its express rights to receive any payments under this Agreement or any other express rights of each Cap Provider explicitly stated in this Agreementexecute, deliver and shall have the right to enforce such rights under this Agreement as if it were a party hereto. In the event that the Cap Provider fails to perform any of its obligations under the Cap Agreement on the Closing Date and thereafter on behalf of the Holders of the Certificates. The Seller, the Depositor, the Servicer and the Holders of the Certificates by their acceptance of such Certificates acknowledge and agree that the Securities Administrator shall execute, deliver and perform its obligations under the Cap Agreement and shall do so solely in its capacity as Securities Administrator as Supplemental Interest Trust Trustee of the Supplemental Interest Trust and not in its individual capacity. (including, without limitation, its obligation c) The Depositor hereby instructs the Securities Administrator to make any payment or transfer collateral), or breaches any of its representations and warranties thereunder, or in the event that any Event of Default, Termination Event, or Additional Termination Event all demands for Eligible Collateral (each as defined in the Cap ISDA Master Agreement) occurs with respect under the Cap Agreement from the Cap Provider in satisfaction of the Delivery Amount (as defined in the ISDA Master Agreement) requirement. The Depositor hereby instructs the Securities Administrator to deliver notice to the Cap Agreement, the Cap Supplemental Interest Trust Trustee shall, promptly following actual notice of such failure, breach or event, notify the Depositor and send Provider upon any notices and make any demands, on behalf failure of the Cap Supplemental Interest Trust, required Provider to enforce transfer the rights of Delivery Amount (as defined in the Cap Supplemental Interest Trust under the Cap ISDA Master Agreement. In the event that the Cap Provider’s obligations are guaranteed by a third party under a guaranty relating to the Cap Agreement (such guaranty the “Cap Guaranty” and such third party the “Cap Guarantor”), then to the extent that the Cap Provider fails to make any payment by the close of business on the day it is required to make payment under the terms of the Cap Agreement, the Cap Supplemental Interest Trust Trustee shall, promptly following actual notice of the Cap Provider’s failure to pay and provided that the Cap Supplemental Interest Trust Trustee shall have been notified of the Cap Guaranty made by the Cap Guarantor in favor of the Cap Provider, demand that the Cap Guarantor make any and all payments then required to be made by the Cap Guarantor ) pursuant to such Cap Guaranty; provided, that the Cap Supplemental Interest Trust Trustee shall in no event be liable for any failure or delay in the performance by the Cap Provider or any Cap Guarantor of its obligations hereunder or pursuant to the Cap Agreement and the Cap Guaranty, nor for any special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) in connection therewith. Upon a Cap Early Termination an Approved Credit Support Document (as defined in the Cap Agreement) of the cap other than in connection with the optional termination of the Trust Fund, the Cap Supplemental Interest Trust Trustee will use reasonable efforts to appoint a successor cap provider, selected by the Depositor, to enter into a new cap agreement on terms substantially similar to the Cap Agreement, with a successor cap provider meeting all applicable eligibility requirements. If the Cap Supplemental Interest Trust Trustee receives a Cap Termination Payment (as defined in the Cap Agreement) from the Cap Provider in connection with such Cap Early Termination, the Cap Supplemental Interest Trust Trustee will apply such cap Termination Payment to any upfront payment required to appoint the successor cap provider. If the Cap Supplemental Interest Trust Trustee is unable to appoint a successor cap provider, selected by the Depositor, within 30 days of the cap Early Termination, then the Cap Supplemental Interest Trust Trustee will deposit any Cap Termination Payment received from the original Cap Provider into a separate, non-interest bearing reserve account and will, on each subsequent Distribution Date, withdraw from the amount then remaining on deposit in such reserve account an amount equal to the net cap payment (as determined pursuant to the Cap Agreement), if any, that would have been paid to the Cap Supplemental Interest Trust Trustee by the original Cap Provider calculated in accordance with the terms of the original Cap Agreement, and distribute such amount in accordance with the terms of the Agreement.

Cap Agreement. The Cap Supplemental Interest Trust Trustee shall deposit any amounts received from time to time with respect to the Cap Agreement into the Cap Contract Reserve Fund. The Cap Supplemental Interest Trust Trustee shall prepare and deliver any notices required to be delivered under the Cap Agreement. The Cap Provider shall act as calculation agent and/or shall terminate the Cap Agreement, in each case upon the occurrence of certain events of default or termination events to the extent specified in or pursuant to the Cap Confirmation. Upon any such termination, the Cap Provider will be obligated to pay the Cap Supplemental Interest Trust Trustee for the benefit of the Certificateholders an amount in respect of such termination. Any amounts received by the Cap Supplemental Interest Trust Trustee in respect of such termination shall be deposited and held in the Cap Contract Reserve Fund to pay Unpaid Allocated Realized Loss Amounts and Net Rate Carryover Shortfall Carry-Forward Amounts on the Classes of Offered Certificates as provided in Section 4.11 hereof on the Distribution Dates following such termination to and including the Cap Agreement Scheduled Termination Date. On the Cap Agreement Scheduled Termination Date, after all other distributions to be made on such date have been made pursuant to the terms of this Agreement, if any such amounts received by the Cap Supplemental Interest Trust Trustee with respect thereto in respect of such termination remain in the Cap Contract Reserve Fund, such amounts shall be distributed by the Securities Administrator to the Holder of the Class C Certificate. The Cap Provider shall be an express third-party beneficiary of this Agreement to the extent of its express rights to receive any payments under this Agreement or any other express rights of each Cap Provider explicitly stated in this Agreement, and shall have the right to enforce such rights under this Agreement as if it were a party hereto. In the event that the Cap Provider fails to perform any of its obligations under the Cap Agreement (including, without limitation, its obligation to make any payment or transfer collateral), or breaches any of its representations and warranties thereunder, or in the event that any Event of Default, Termination Event, or Additional Termination Event (each as defined in the Cap Agreement) occurs with respect to the Cap Agreement, the Cap Supplemental Interest Trust Trustee shall, promptly following actual notice of such failure, breach or event, notify the Depositor and send any notices and make any demands, on behalf of the Cap Supplemental Interest Trust, required to enforce the rights of the Cap Supplemental Interest Trust under the Cap Agreement. In the event that the Cap Provider’s obligations are guaranteed by a third party under a guaranty relating to the Cap Agreement (such guaranty the “Cap Guaranty” and such third party the “Cap Guarantor”), then to the extent that the Cap Provider fails to make any payment by the close of business on the day it is required to make payment under the terms of the Cap Agreement, the Cap Supplemental Interest Trust Trustee shall, promptly following actual notice of the Cap Provider’s failure to pay and provided that the Cap Supplemental Interest Trust Trustee shall have been notified of the Cap Guaranty made by the Cap Guarantor in favor of the Cap Provider, demand that the Cap Guarantor make any and all payments then required to be made by the Cap Guarantor pursuant to such Cap Guaranty; provided, that the Cap Supplemental Interest Trust Trustee shall in no event be liable for any failure or delay in the performance by the Cap Provider or any Cap Guarantor of its obligations hereunder or pursuant to the Cap Agreement and the Cap Guaranty, nor for any special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits) in connection therewith. Upon a Cap cap Early Termination (as defined in the Cap Agreement) of the cap other than in connection with the optional termination of the Trust Fund, the Cap Supplemental Interest Trust Trustee will use reasonable efforts to appoint a successor cap provider, selected by the Depositor, to enter into a new cap agreement on terms substantially similar to the Cap Agreement, with a successor cap provider meeting all applicable eligibility requirements. If the Cap Supplemental Interest Trust Trustee receives a Cap cap Termination Payment (as defined in the Cap Agreement) from the Cap Provider in connection with such Cap cap Early Termination, the Cap Supplemental Interest Trust Trustee will apply such cap Termination Payment to any upfront payment required to appoint the successor cap provider. If the Cap Supplemental Interest Trust Trustee is unable to appoint a successor cap provider, selected by the Depositor, within 30 days of the cap Early Termination, then the Cap Supplemental Interest Trust Trustee will deposit any Cap Termination Payment received from the original Cap Provider into a separate, non-interest bearing reserve account and will, on each subsequent Distribution Date, withdraw from the amount then remaining on deposit in such reserve account an amount equal to the net cap payment (as determined pursuant to the Cap Agreement), if any, that would have been paid to the Cap Supplemental Interest Trust Trustee by the original Cap Provider calculated in accordance with the terms of the original Cap Agreement, and distribute such amount in accordance with the terms of the Agreement.