Exhibit 99.3
(MULTICURRENCY--CROSS BORDER)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of August 31, 2006
CREDIT SUISSE And ▇▇▇▇▇ FARGO BANK, N.A. NOT
INTERNATIONAL IN ITS INDIVIDUAL CAPACITY
("PARTY A") BUT SOLELY AS SECURITIES
ADMINISTRATOR UNDER THE
POOLING AND SERVICING
AGREEMENT (AS DEFINED
HEREIN), ACTING AS AUCTION
ADMINISTRATOR FOR THE
BENEFIT OF THE HOLDERS OF
THE AUCTION CERTIFICATES
("PARTY B")
have entered and/or anticipate entering into one or more transactions (each
a "Transaction") that are or will be governed by this Master Agreement,
which includes the schedule (the "Schedule"), and the documents and other
confirming evidence (each a "Confirmation") exchanged between the parties
confirming those Transactions.
Accordingly, the parties agree as follows:--
1. INTERPRETATION
(a) DEFINITIONS. The terms defined in Section 14 and in the Schedule will
have the meanings therein specified for the purpose of this Master
Agreement.
(b) INCONSISTENCY. In the event of any inconsistency between the provisions
of the Schedule and the other provisions of this Master Agreement, the
Schedule will prevail. In the event of any inconsistency between the
provisions of any Confirmation and this Master Agreement (including the
Schedule), such Confirmation will prevail for the purpose of the relevant
Transaction.
(c) SINGLE AGREEMENT. All Transactions are entered into in reliance on the
fact that this Master Agreement and all Confirmations form a single
agreement between the parties (collectively referred to as this
"Agreement"), and the parties would not otherwise enter into any
Transactions.
2. OBLIGATIONS
(a) GENERAL CONDITIONS.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made on the due date for
value on that date in the place of the account specified in the
relevant Confirmation or otherwise pursuant to this Agreement, in
freely transferable funds and in the manner customary for payments in
the required currency. Where settlement is by delivery (that is, other
than by payment), such delivery will be made for receipt on the due
date in the manner customary for the relevant obligation unless
otherwise specified in the relevant Confirmation or elsewhere in this
Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to (1)
the condition precedent that no Event of Default or Potential Event of
Default with respect to the other party has occurred and is continuing, (2)
the condition precedent that no Early Termination Date in respect of the
relevant Transaction has occurred or been effectively designated and (3)
each other applicable condition precedent specified in this Agreement.
ISDA (R) 1992
value of that which was (or would have been) required to be delivered as of the
originally scheduled date for delivery, in each case together with (to the
extent permitted under applicable law) interest, in the currency, of such
amounts, from (and including) the date such amounts or obligations were or would
have been required to have been paid or performed to (but excluding) such Early
Termination Date, at the Applicable Rate. Such amounts of interest will be
calculated on the basis of daily compounding and the actual number of days
elapsed. The fair market value of any obligation referred to in clause (b) above
shall be reasonably determined by the party obliged to make the determination
under Section 6(e) or, if each party is so obliged, it shall be the average of
the Termination Currency Equivalents of the fair market values reasonably
determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
▇▇▇▇▇ FARGO BANK, N.A. NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY AS
SECURITIES ADMINISTRATOR UNDER THE
POOLING AND SERVICING AGREEMENT (AS
CREDIT SUISSE INTERNATIONAL DEFINED HEREIN), ACTING AS AUCTION
ADMINISTRATOR FOR THE BENEFIT OF THE
HOLDERS OF THE AUCTION CERTIFICATES
("Party A") ("Party B")
By: /s/ Bik ▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: Bik ▇▇▇▇ ▇▇▇▇▇
Title: Authorized Signatory
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇
--------------------------------- ------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇ ▇▇▇▇▇
Title: Authorized Signatory Title: Vice President
SCHEDULE
TO THE
MASTER AGREEMENT
DATED AS OF AUGUST 31, 2006
between
CREDIT SUISSE INTERNATIONAL,
("PARTY A")
and
▇▇▇▇▇ FARGO BANK, N.A.
NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS SECURITIES ADMINISTRATOR UNDER THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN), ACTING AS AUCTION
ADMINISTRATOR FOR THE BENEFIT OF THE HOLDERS OF THE AUCTION CERTIFICATES
("PARTY B")
PART 1 TERMINATION PROVISIONS
(A) "SPECIFIED ENTITY" means
in relation to Party A for the purpose of:
Section 5(a)(v) (Default under Specified Transaction) Not Applicable
Section 5(a)(vi) (Cross Default) Not Applicable
Section 5(a)(vii) (Bankruptcy) Not Applicable
Section 5(b)(iv) (Credit Event Upon Merger) Not Applicable
and in relation to Party B for the purpose of:
Section 5(a)(v) (Default under Specified Transaction) Not Applicable
Section 5(a)(vi) (Cross Default) Not Applicable
Section 5(a)(vii) (Bankruptcy) Not Applicable
Section 5(b)(iv) (Credit Event Upon Merger) Not Applicable
(B) "SPECIFIED TRANSACTION" will have the meaning assigned in Section 14
of this Agreement.
(C) The "CROSS-DEFAULT" provisions of Section 5(a)(vi)
will not apply to Party A.
will not apply to Party B.
(D) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(iv)
will not apply to Party A.
will not apply to Party B.
(E) The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a)
will not apply to Party A.
will not apply to Party B.
(F) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e) of this
Agreement but subject to Part 5 of this Schedule:
(i) Loss will apply.
(ii) The Second Method will apply.
(G) "TERMINATION CURRENCY" means United States Dollars.
(H) ADDITIONAL TERMINATION EVENTS. The following Additional Termination
Events will apply
(i) If, upon the occurrence of a Swap Disclosure Event (as defined in
Part 5(r) below) Party A has not within five (5) Business Days after
such Swap Disclosure Event (without giving effect to any grace period
otherwise provided herein or otherwise) complied with any of the
provisions set forth in Part 5(r) below, then an Additional
Termination Event shall have occurred with respect to Party A, and
Party A shall be the sole Affected Party with respect to such
Additional Termination Event.
(ii) If, Party A fails to comply with any of the provisions set forth
in Part 5(n), then an Additional Termination Event shall have occurred
with respect to Party A, and Party A shall be the sole Affected Party
with respect to such Additional Termination Event.
(I) The "BREACH OF AGREEMENT" provisions of Section 5(a)(ii), the
"MISREPRESENTATION" provisions of Section 5(a)(iv) and the "DEFAULT
UNDER SPECIFIED TRANSACTION" provisions of Section 5(a)(v)
will not apply to Party A.
will not apply to Party B.
(J) (i) The "BANKRUPTCY" provisions of Section 5(a)(vii) will not apply to
Party B;
(ii) The "MERGER WITHOUT ASSUMPTION" provisions of Section 5(a)(viii)
will not apply to Party B;
(iii) The "CREDIT SUPPORT DEFAULT" provisions of Section 5(a)(iii)
will not apply to Party B; and
(iv) The "ILLEGALITY" provisions of Section 5(b)(i), the "TAX EVENT"
provisions of Section 5(b)(ii) and the "TAX EVENT UPON MERGER"
provisions of Section 5(b)(iii) will not apply to Party B.
PART 2 TAX REPRESENTATIONS
(A) PAYER TAX REPRESENTATION For the purpose of Section 3(e) of this
Agreement, each party will make with respect to itself 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
Schedule
Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to be made by it to
the other party under this Agreement. In making this representation,
it may rely on (i) the accuracy of any representation made by the
other party pursuant to Section 3(f) of this Agreement; (ii) the
satisfaction of the agreement of the other party 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 sub-clause (ii) above 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 purposes of Section 3(f), each party
makes the following representations:
(i) The following representation will apply to Party A:
(A) Party A is entering into each Transaction in the ordinary
course of its trade as, and is, a recognized UK bank as defined
in Section 840A of the UK Income and Corporation Taxes Act of
1988.
(B) Party A has been approved as a Withholding Foreign
Partnership by the US Internal Revenue Service.
(C) Party A's Withholding Foreign Partnership Employer
Identification Number is ▇▇-▇▇▇▇▇▇▇.
(D) Party A is a partnership that agrees to comply with any
withholding obligation under Section 1446 of the Internal Revenue
Code.
(ii) The following representation will apply to Party B:
It is a statutory trust established under the laws of Delaware.
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, as applicable:
(A) Tax forms, documents or certificates to be delivered are:
PARTY REQUIRED TO DELIVER DOCUMENT FORM / DOCUMENT/ CERTIFICATE DATE BY WHICH TO BE DELIVERED
---------------------------------- ---------------------------- -----------------------------
Party A and Party B Tax forms that may (i) Upon execution and delivery
reasonably be required by of this Agreement; (ii) promptly
Party A or Party B, as upon reasonable demand by Party
applicable A or Party B, as applicable; and
(iii) promptly upon learning
that any Form W-8 or Form W-9,
as applicable,
Schedule
PARTY REQUIRED TO DELIVER DOCUMENT FORM / DOCUMENT/ CERTIFICATE DATE BY WHICH TO BE DELIVERED
---------------------------------- ---------------------------- -----------------------------
(or any successor thereto) has
become obsolete or incorrect
Party A Form W8-IMY (i) Upon execution and delivery
of the Form Master Agreement;
(ii) promptly upon reasonable
demand by Party B; and (iii)
promptly upon learning that any
Form W-8 or Form W-9, as
applicable, (or any successor
thereto) has become obsolete or
incorrect
(B) Other documents to be delivered are:
PARTY REQUIRED TO DELIVER FORM / DOCUMENT/ DATE BY WHICH TO BE COVERED BY SECTION 3(D)
DOCUMENT CERTIFICATE DELIVERED REPRESENTATION
------------------------- ------------------------- ------------------------- -----------------------
Party A & B Incumbency Certificate or Upon execution of this Yes
other evidence of signing Agreement and, if
authority. requested, any
Confirmation.
Party A its audited annual As soon as possible Yes
report after request.
Party A Authorizing resolution of Upon execution of this Yes
managing board (e.g., Agreement and, if
Certified Board of requested, any
Directors Resolution) Confirmation.
approving each type of
Transaction contemplated
hereunder and the
arrangements contemplated
herein.
Party B Copies of all statements On each Distribution Date Yes
delivered to the Holders (as such term is defined
of the Auction in the Pooling and
Certificates under the Servicing Agreement).
Pooling and Servicing
Agreement.
Party B Executed copy of the Upon execution thereof. Yes
Pooling and Servicing
Schedule
PARTY REQUIRED TO DELIVER FORM / DOCUMENT/ DATE BY WHICH TO BE COVERED BY SECTION 3(D)
DOCUMENT CERTIFICATE DELIVERED REPRESENTATION
------------------------- ------------------------- ------------------------- -----------------------
Agreement.
Party A A written opinion of Upon execution of this No
counsel to Party A as to Agreement.
the enforceability of
this Agreement that is
reasonably satisfactory
in form and substance to
Party B.
Party A & B Such party's Credit Upon execution of this Yes
Support Documents, if any. Agreement.
PART 4 MISCELLANEOUS
(A) ADDRESSES FOR NOTICES For the purpose of Section 12(a) of this
Agreement:-
(i) Notices or communications shall, with respect to a particular
Transaction, be sent to the address, telex number or facsimile
number reflected in the Confirmation of that Transaction. In
addition (or in the event the Confirmation for a Transaction does
not provide relevant Addresses/information for notice), with
respect to notices provided pursuant to Section 5 and 6 of this
Agreement, notice shall be provided to:
Address for notices or communications to Party A (other than by
facsimile):
Address: One ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Attention: Head of Credit Risk Management;
Managing Director - Operations Department; and
Managing Director - Legal Department
Telex No.: 264521 Answerback: CSI G
For the purpose of facsimile notices or communications under this
Agreement (other than a notice or communication under Sections 5
or 6):
Facsimile No.: 44 20 7888 2686
Attention: Managing Director - Legal Department
Telephone number for oral confirmation of receipt of facsimile in
legible form: 44 20 7888 2028 Designated responsible employee for
the purposes of Section 12(a)(iii): Senior Legal Secretary.
Address for notices or communications to Party B:
Schedule
Address: ▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ - 1951
Attention: Client Manager - ▇▇▇▇▇▇▇▇▇ 2006-5
Phone No.: (▇▇▇) ▇▇▇ ▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇ ▇▇▇▇
(ii) NOTICES Section 12(a) is amended by adding in the third line
thereof after the phrase "messaging system" and before the ")"
the words "; provided, however, any such notice or other
communication may be given by facsimile transmission (it being
agreed that the sender shall verbally confirm receipt with an
officer of the receiving party )".
(B) PROCESS AGENT For purposes of Section 13(c) of this Agreement:
Party A appoints as its Process Agent: Credit Suisse Securities (USA)
LLC, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General
Counsel, Legal and Compliance Department.
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 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 Party A; it being understood that, notwithstanding
anything to the contrary in this Agreement, Party A shall be the
Calculation Agent irrespective of whether Party A is a Defaulting
Party or Affected Party. Notwithstanding Section 6(e) of the
Agreement, Party A will be the party entitled to determine Loss.
(F) CREDIT SUPPORT DOCUMENTS Details of any Credit Support Documents:
In the case of Party A: Not Applicable.
In the case of Party B: Not Applicable.
(G) CREDIT SUPPORT PROVIDER means
in relation to Party A: Not Applicable; and
in relation to Party B: Not Applicable
(H) GOVERNING LAW THIS AGREEMENT, AND TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ALL MATTERS ARISING OUT OF OR REGARDING IN ANY WAY
THIS AGREEMENT, WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS WHOLLY
PERFORMED WITHIN NEW YORK, WITHOUT REFERENCE TO CHOICE OF LAW
DOCTRINE.
Schedule
(I) NETTING OF PAYMENTS Sub-paragraph (ii) of Section 2(c) of this
Agreement will apply to all Transactions hereunder, unless otherwise
provided in the relevant Confirmation(s).
(J) "AFFILIATE" will have the meaning specified in Section 14, provided
that Party A shall be deemed to have no Affiliates.
PART 5 OTHER PROVISIONS
(A) ISDA DEFINITIONS INCORPORATED BY REFERENCE The definitions and
provisions contained in the 2000 ISDA Definitions, as published by the
International Swaps and Derivatives Association, Inc., are
incorporated herein, and the version of the Annex to the 2000 ISDA
Definitions that is incorporated herein is the June 2000 version
(collectively, the "DEFINITIONS"). Any terms used and not otherwise
defined herein which are contained in the Definitions shall have the
meaning set forth therein. In the event of any conflict between the
Definitions and any other ISDA-published definitions referenced in a
Confirmation, such Confirmation and the ISDA-published definitions
referred to therein shall control for purposes of the particular
Transaction. For the avoidance of doubt, any reference to a "Swap
Transaction", if any, in the Definitions is deemed to be a reference
to a "Transaction" for the purpose of interpreting this Agreement or
any Confirmation, and any reference to a "Transaction" in this
Agreement or any Confirmation is deemed to be a reference to a "Swap
Transaction" for the purpose of interpreting the Definitions.
(B) OTHER DEFINED TERMS Terms used and not defined in this Agreement or in
the Definitions, shall have the respective meanings ascribed to such
terms in the Auction Administration Agreement, and if not defined
therein, in the Pooling and Servicing Agreement dated as of August 1,
2006, for TMST 2006-5 among Structured Asset Mortgage Investments II
Inc., as Depositor, ▇▇▇▇▇▇▇▇▇ Mortgage Home Loans, Inc., as Seller,
Wilmington Trust Company, as Delaware Trustee, ▇▇▇▇▇ Fargo Bank, N.A.,
as Master Servicer and Securities Administrator, and LaSalle Bank
National Association, as Trustee and Custodian, as amended and
supplemented from time to time (the "POOLING AND SERVICING
AGREEMENT").
(C) NO SET-OFF Notwithstanding anything to the contrary in this Agreement,
all payments shall be made without any Set-Off.
(D) CONDITION PRECEDENT The condition precedent specified in Section
2(a)(iii)(1) of this Agreement does not apply to a payment or delivery
owing by a party if the other party shall have satisfied in full all
its payment and delivery obligations under Section 2(a)(i) of this
Agreement and shall at the relevant time have no future payment or
delivery obligations, whether absolute or contingent, under Section
2(a)(i).
(E) ADDITIONAL REPRESENTATIONS Section 3 is hereby amended by adding at
the end thereof the following subparagraphs:
(g) "NO AGENCY In case of Party A, it is entering into this
Agreement, any Credit Support Document and any other document
relating to this Agreement and each Transaction hereunder as
principal and not as agent or in any capacity,
Schedule
fiduciary or otherwise, and no other person has an interest
herein, and in case of Party B, it is entering into this
Agreement, any Credit Support Document and any other document
relating to this Agreement and each Transaction hereunder solely
as agent for the Holders of the Auction Certificates (as such
term is defined in the Pooling and Servicing Agreement and as
authorized therein), and no other person, other than the Holders
of the Auction Certificates, has an interest herein.
(h) LEGAL AND BENEFICIAL OWNER It will be the legal and beneficial
owner of any securities it is required to deliver under this
Agreement and any Transaction at the time of each delivery, free
from all liens, charges, equities, rights of pre-emption or other
security interests or encumbrances whatsoever, unless otherwise
expressly provided in a Confirmation for a Transaction, and such
securities will not constitute "restricted securities" or
"control stock" under the Securities Act (as defined below).
(i) US FEDERAL SECURITIES LAWS Each party represents to the other
party that:
(i) It is a "qualified institutional buyer" as defined in Rule
144A under the United States Securities Act of 1933, as
amended (the "SECURITIES ACT"); and
(ii) It understands that certain Transactions under the Agreement
may constitute the purchase or sale of "securities" as
defined in the Securities Act and understands that any such
purchase or sale of securities will not be registered under
the Securities Act and that any such Securities Transactions
may not be reoffered, resold, pledged, sub-participated or
otherwise transferred except (x) in accordance with the
Agreement, (y) pursuant to an effective registration
statement under the Securities Act or pursuant to an
exemption from the registration requirements of the
Securities Act and (z) in accordance with any applicable
securities laws of any state of the United States.
(j) FINANCIAL INSTITUTION STATUS In the case of Party A, it is a
"financial institution", in that it engages, will engage and
holds itself out as engaging in "financial contracts," as a
counterparty on both sides of one or more "financial markets" (as
such quoted terms are defined in Regulation EE of the US Federal
Reserve Board, 12 C.F.R. Part 231) and it fulfills at least one
of the quantitative tests contained in such Regulation EE (12
C.F.R. Section 231(a)(1) or (a)(2))."
(F) SWAP EXEMPTION Each party hereto represents to the other party on and
as of the date hereof and on each date on which a Transaction is
entered into between them hereunder, that it is an "eligible contract
participant" as defined in Section 1a(12) of the Commodity Exchange
Act, as amended.
(G) RELATIONSHIP BETWEEN PARTIES In connection with the negotiation of,
the entering into, of this Agreement, and any other documentation
relating to this Agreement to which it is a party or that it is
required by this Agreement to deliver, each party hereby represents
Schedule
and warrants, and, in connection with the negotiation of, the entering
into, and the confirming of the execution of each Transaction, each
party will be deemed to represent, to the other party as of the date
hereof (or, in connection with any Transaction, as of the date which
it enters into such Transaction) that (absent a written agreement
between the parties that expressly imposes affirmative obligations to
the contrary for that Transaction and in accordance with Section
3(g)):
(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 advisers
as it has deemed necessary. It is not relying on any
communication (written or oral) of the other party as investment
advice or as a recommendation to enter into that Transaction; it
being understood that information and explanations related to
the terms and conditions of a Transaction shall not be
considered investment advice or a recommendation to enter into
that Transaction. No communication (written or oral) received
from the other party shall be deemed to be an assurance or
guarantee as to the expected results of that Transaction.
(ii) ASSESSMENT AND UNDERSTANDING It is capable of assessing the
merits of 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 risks of that Transaction.
It has determined to its satisfaction whether or not the rates,
prices or amounts and other economic terms of each Transaction
and the indicative quotations (if any) provided by the other
party reflect those in the relevant market for similar
transactions, and all trading decisions have been the result of
arm's length negotiations between the parties.
(iii) STATUS OF PARTIES The other party is not acting as a fiduciary
for or an adviser to it in respect of that Transaction.
(iv) RELATED TRANSACTIONS It is aware that each other party to this
Agreement and its Affiliates may from time to time (A) take
positions in instruments that are identical or economically
related to a Transaction or (B) have an investment banking or
other commercial relationship with the issuer of an instrument
underlying a Transaction.
(H) ADDITIONAL REPRESENTATIONS OF PARTY B Party B hereby acknowledges and
agrees that (i) with respect to this Agreement and each Transaction,
Party B will maintain, and be in full compliance with, all operative
and constituent documents of Party B, and (ii) each Transaction will
also comply in all respects with all applicable laws, rules,
regulations, interpretations, guidelines, procedures, and policies of
applicable governmental and regulatory authorities affecting Party B
or the performance of its obligations hereunder.
(I) CONFIDENTIAL INFORMATION Each party may share any information
concerning the other party with any of its Affiliates.
Schedule
(J) WAIVER OF JURY TRIAL EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY PROCEEDINGS ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY TRANSACTION.
(K) CONSENT TO TELEPHONIC RECORDING Each party hereto consents to the
monitoring or recording, at any time and from time to time, by the
other party of the telephone conversations of trading and marketing
personnel of the parties and their authorized representatives in
connection with this Agreement or any Transaction or potential
Transaction; and the parties, waive any further notice of such
monitoring or recording and agree to give proper notice and obtain any
necessary consent of such personnel or any such monitoring or
recording.
(L) NO BANKRUPTCY PETITION Party A agrees that it will not, prior to the
date that is one year and one day following the termination of the
Pooling and Servicing Agreement, acquiesce, petition or otherwise
invoke or cause Party B to invoke the process of any governmental
authority for the purpose of commencing or sustaining a case (whether
voluntary or involuntary) against Party B under any bankruptcy,
reorganization, arrangement, insolvency, moratorium, liquidation or
similar law or proceeding or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official
of Party B or any substantial part of its property or ordering the
winding-up or liquidation of the affairs of Party B; provided, that
this provision shall not restrict or prohibit Party A from joining any
other person in any bankruptcy, reorganization, arrangement,
insolvency, moratorium or liquidation proceedings already commenced or
other analogous proceedings already commenced under applicable law;
and provided, further, that this provision shall not constitute a
waiver by Party A of its right to the proceeds of any bankruptcy,
reorganization, arrangement, insolvency, moratorium or liquidation
proceedings instituted by third parties against Party B under
applicable law.
(M) NOTICE OF TRANSFER OR AMENDMENT Party A and Party B acknowledge and
agree to provide prior written notice to the Rating Agencies (as such
term is defined in the Pooling and Servicing Agreement) of any
transfer or amendment of this Agreement or any Confirmation.
(N) RATINGS EVENT
(i) If (1) the short-term unsecured debt rating of Party A is at any
time not at least "P-1" (without regard to whether such rating
may be on negative watch) by ▇▇▇▇▇'▇ Investors Service, Inc.
("MOODY'S"), (2) the long-term unsecured debt rating of Party A
is at any time not at least "A2" (without regard to whether such
rating may be on negative watch) by Moody's, (3) if Party A has
a short-term unsecured debt rating from Standard and Poor's
Ratings Service, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
("S&P"), such rating is at any time not at least "A-1" or (4) if
Party A does not have a short-term unsecured debt rating from
S&P, the long-term unsecured debt rating of Party A from S&P is
at any time not at least "A+" (such occurrence, a "RATINGS
EVENT" and such ratings the "APPROVED RATINGS THRESHOLD"), Party
A shall within 30 days of such Ratings Event, at its own cost
and subject to the Rating Agency Condition,
Schedule
either (A) assign all its rights and obligations under this
Agreement to a substitute party selected by Party A who meets or
exceeds (or whose Credit Support Provider meets or exceeds) the
Approved Ratings Threshold, (B) obtain a guaranty of another
person selected by Party A who meets or exceeds the Approved
Ratings Threshold or (C) deliver collateral, in an amount
sufficient to maintain the then-current ratings of the Auction
Certificates pursuant to a Credit Support Annex.
(ii) Notwithstanding anything to the contrary in this Part 5(n), if
(1) the short-term unsecured debt rating of Party A is at any
time not at least "P-2" (without regard to whether such rating
may be on negative watch) by Moody's, (2) the long-term
unsecured debt rating of Party A is at any time not at least
"A3" (without regard to whether such rating may be on negative
watch) by Moody's, or (3) the long-term unsecured debt rating of
Party A is at any time not at least "BBB-" by S&P (or is
withdrawn), Party A shall no longer be eligible to deliver
collateral pursuant to clause (i)(C) above and instead shall
comply with clause (A) or (B) above of Part 5(n)(i) within ten
(10) days.
(iii) For purposes of this Agreement, "RATING AGENCY CONDITION" means,
with respect to any particular proposed act or omission to act
hereunder that the party acting or failing to act must consult
with Moody's and S&P and receive from Moody's and S&P a prior
written confirmation that the proposed action or inaction would
not cause a downgrade or withdrawal of the then-current rating
of the Auction Certificates.
(O) TRANSFER Notwithstanding Section 7 of this Agreement and subject to
the Rating Agency Condition, Party A and any applicable Credit Support
Provider shall have the right to transfer their respective rights and
obligations hereunder to a substitute counterparty provided that such
substitute counterparty (or such substitute counterparty's Credit
Support Provider) shall have a credit rating of its long-term debt
obligations no lower than the current rating of the long-term debt
obligations of Party A.
(P) ADDITIONAL INFORMATION. Party A hereby agrees to cooperate in a
commercially reasonable manner with any requests from Party B to
provide any information required pursuant to Item 1119 of Regulation
AB under the Securities Act of 1933. The parties hereby agree, that if
Party A, acting in a commercially reasonable manner, cannot comply
with a request by Party B for such additional information, Party A
shall transfer its rights and obligations hereunder to a transferee
pursuant to Part 5(o) above.
(Q) RATING AGENCY CONDITION FOR AMENDMENT. In addition to the requirements
of Section 9, this Agreement will not be amended unless the Rating
Agency Condition has first been met.
(R) COMPLIANCE WITH REGULATION AB
(i) It shall be a swap disclosure event ("Swap Disclosure Event")
if, at any time after the date hereof, until such date that the
Auction Certificates are no longer required to make public
reports under the Securities Exchange Act of 1934, as
Schedule
amended, the Depositor or the Sponsor notifies Party A that the
aggregate "significance percentage" (calculated in accordance
with the provisions of Item 1115 of Regulation AB) of all
derivative instruments provided by Party A and any of its
affiliates to Party B (collectively, the "Aggregate Significance
Percentage") is 10% or more.
(ii) Upon the occurrence of a Swap Disclosure Event, Party A, at its
own cost and expense (and without any cost or expense to, or
liability of, Party B, the Depositor, the Sponsor, the
Underwriters, the Trustee, or the Issuing Entity), shall take
one of the following actions:
(a) provide to the Sponsor and the Depositor: (i) if the
Aggregate Significance Percentage is 10% or more, but less
than 20%, the information required under Item 1115(b)(1) of
Regulation AB or (ii) if the Aggregate Significance
Percentage is 20% or more, within five (5) Business Days,
the financial information required under Item 1115(b)(2) of
Regulation AB, (each, "Swap Financial Disclosure"); or
(b) assign its rights and delegate its obligations under the
Transaction to a counterparty with the Approved Ratings
Thresholds (or which satisfies the Rating Agency Condition),
that (x) provides the information specified in clause (a)
above to the Depositor and Sponsor and (y) enters into an
ISDA Master Agreement and related documentation
substantially similar to the documentation then in place
between Party A and Party B; or
(c) subject to the Rating Agency Condition and subject to any
interpretative guidance issued by the Securities and
Exchange Commission that determines that such Swap Financial
Disclosure provided by an affiliate of Party A satisfies the
requirement of Item 1115 of Regulation AB, obtain a guaranty
of Party A's obligations under this Agreement from an
affiliate of Party A that is able to provide the applicable
Swap Financial Disclosure satisfactory in form and substance
to the Sponsor and the Depositor, and cause such affiliate
to provide to the Sponsor and the Depositor such Swap
Financial Disclosure within five (5) Business Days
The Securities Administrator shall be under no obligation to
monitor the responsibilities of Party A under clause 5(r)(ii).
(iii) For so long as the Aggregate Significance Percentage is 10% or
more and a Swap Disclosure Event is continuing, Party A shall
provide any updates to the information provided pursuant to
clause (ii) above to the Sponsor and the Depositor within five
(5) Business Days following availability thereof (but in no
event more than 45 days after the end of each of Party A's
fiscal quarter for any quarterly update, and in no even more
than 90 days after the end of each of Party A's fiscal year for
any annual update).
(iv) All information provided pursuant to clauses (ii) and (iii)
above shall be in a form suitable for conversion to the format
required for filing by the Depositor with the Commission via the
Electronic Data Gathering and Retrieval System
Schedule
(▇▇▇▇▇). In addition, any such information, if audited, shall be
accompanied by any necessary auditor's consents to the extent
required by Regulation AB or, if such information is unaudited
and if required by the provisions of Regulation AB, shall be
accompanied by an appropriate agreed-upon procedures or
comparable letter from Party A's accountants. If permitted by
Regulation AB, any such information may be provided by reference
to or incorporation by reference from reports filed pursuant to
the Exchange Act.
Schedule
IN WITNESS WHEREOF, Party A and Party B have caused this Schedule to be duly
executed as its act and deed as of the date first written above.
CREDIT SUISSE INTERNATIONAL
By: /s/ Bik ▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: Bik ▇▇▇▇ ▇▇▇▇▇
Title: Authorized Signatory
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇ FARGO BANK, N.A.,
not in its individual capacity but
solely as Securities Administrator
under the Pooling and Servicing
Agreement, acting as Auction
Administrator and intermediary agent
for the Holders of the Auction
Certificates
By /s/ ▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
Schedule
[CREDIT SUISSE LOGO] CREDIT SUISSE INTERNATIONAL
One Cabot Square, Telephone ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇.▇▇▇▇▇▇-▇▇▇▇▇▇.▇▇▇
FACSIMILE COVER SHEET
TO: ▇▇▇▇▇ FARGO BANK, N.A., not in its individual
capacity but solely as Securities Administrator
under the Pooling and Servicing Agreement
(referred to below), acting as Auction
Administrator for the benefit of the Holders of
the Auction Certificates (the "Trust")
Attention: NY IRP Incoming Documentation Team
Fax number: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Date: August 31, 2006
Pages (including cover page): 5
Our Reference No: External ID: 9336865 / Risk ID: 562350087
CREDIT SUISSE INTERNATIONAL HAS ENTERED INTO A TRANSACTION WITH YOU AS ATTACHED.
PLEASE FIND ATTACHED A LETTER AGREEMENT (THE "CONFIRMATION") WHICH CONFIRMS THE
TERMS AND CONDITIONS OF THE ABOVE TRANSACTION.
If you agree with the terms specified therein, PLEASE ARRANGE FOR THE
CONFIRMATION TO BE SIGNED BY YOUR AUTHORISED SIGNATORIES and return a signed
copy to this office to the facsimile listed below.
FOR INTEREST RATE PRODUCTS:
Telephone Numbers: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇.▇▇▇-▇▇▇-▇▇▇▇▇▇-▇▇@▇▇▇▇▇▇-▇▇▇▇▇▇.▇▇▇
FOR CREDIT DERIVATIVES:
Telephone Numbers: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇.▇▇▇-▇▇▇-▇▇▇▇▇▇-▇▇@▇▇▇▇▇▇-▇▇▇▇▇▇.▇▇▇
FOR EQUITY DERIVATIVES:
Telephone numbers: (▇▇▇) ▇▇▇-▇▇▇▇ / (▇▇▇) ▇▇▇-▇▇▇▇ / (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
WE ARE DELIGHTED TO HAVE ENTERED INTO THIS TRANSACTION WITH YOU.
CONFIDENTIALITY NOTICE: This facsimile is intended only for the use of the
individual or entity to which it is addressed and may contain information which
is privileged and confidential. If the reader of this message is not the
intended recipient or an employee or agent responsible for delivering the
message to the intended recipient, you are hereby notified that any
dissemination, distribution or copying of this communication is strictly
prohibited. If you have received this communication in error, please notify us
immediately by telephone and return the original message to us by mail. Thank
you.
External ID: 9336865/ Risk ID: 562350087
Registered Office as above
Registered with unlimited liability in England under No. 2500199
Authorised and Regulated by the Financial Services Authority
VAT No: GB 447 0737 41
August 31, 2006
▇▇▇▇▇ FARGO BANK, N.A., not in its individual capacity but solely as Securities
Administrator under the Pooling and Servicing Agreement (referred to below),
acting as Auction Administrator for the benefit of the Holders of the Auction
Certificates
External ID: 9336865
Dear Sir/Madam
The purpose of this letter agreement (this "CONFIRMATION") is to confirm the
terms and conditions of the Transaction entered into between us on the Trade
Date specified below (the "TRANSACTION"). This Confirmation constitutes a
"Confirmation" as referred to in the Agreement specified below.
IN THIS CONFIRMATION "CSIN" MEANS CREDIT SUISSE INTERNATIONAL AND "COUNTERPARTY"
MEANS THE AUCTION ADMINISTRATOR.
1. The definitions and provisions contained in the 2000 ISDA Definitions (as
published by the International Swaps and Derivatives Association, Inc.) are
incorporated into this Confirmation. In the event of any inconsistency
between those definitions and provisions and this Confirmation, this
Confirmation will govern.
This Confirmation supplements, forms part of, and is subject to, the 1992
ISDA Master Agreement dated as of August 31, 2006 as amended and
supplemented from time to time (the "AGREEMENT"), between CSIN and the
Counterparty. All provisions contained in the Agreement govern this
Confirmation except as expressly modified below.
All terms used herein and not otherwise defined are given their meaning in
the Pooling and Servicing Agreement dated as of August 1, 2006, for TMST
2006-5 among Structured Asset Mortgage Investments II Inc., as Depositor,
▇▇▇▇▇▇▇▇▇ Mortgage Home Loans, Inc., as Seller, Wilmington Trust Company,
as Delaware Trustee, ▇▇▇▇▇ Fargo Bank, N.A., as Master Servicer and
Securities Administrator, and LaSalle Bank National Association, as Trustee
and Custodian, as amended and supplemented from time to time (the "POOLING
AND SERVICING AGREEMENT") or, if not defined in the Pooling and Servicing
Agreement, in the Auction Administration Agreement, dated as of August 31,
2006 between ▇▇▇▇▇ Fargo Bank, N.A., as auction administrator, and CSIN
(the "AUCTION ADMINISTRATION AGREEMENT"). In the event of an inconsistency
between the terms defined in the Pooling and Servicing Agreement or the
Auction Administration Agreement and this Confirmation, this Confirmation
will govern.
CSIN and Counterparty each represents to the other that it has entered into
this Swap Transaction in reliance upon such tax, accounting, regulatory,
legal, and financial advice as it deems necessary and not upon any view
expressed by the other.
External ID: 9336865/ Risk ID: 562350087
Registered Office as above
Registered with unlimited liability in England under No. 2500199
Authorised and Regulated by the Financial Services Authority
VAT No: GB 447 0737 41
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Trade Date: August 23, 2006.
Effective Date: August 31, 2006.
Auction Distribution Date: The Distribution Date in August, 2011.
Termination Date: The earlier to occur of (i) the Auction
Distribution Date and (ii) the date on
which the Class Certificate Principal
Balance of each of the Reference
Obligations has been reduced to zero.
Reference Obligations: The Class A-1 and Class A-2 Certificates
issued on August 31, 2006 pursuant to the
Pooling and Servicing Agreement.
CSIN Floating Amount: The sum of the Auction Deficiency Amounts,
defined below for each Reference
Obligation.
CSIN Payment Date: The Auction Distribution Date.
Counterparty Floating Amount: The sum of the Auction Excess Amounts for
each Reference Obligation.
Counterparty Payment Date: The Auction Distribution Date.
Auction Deficiency Amount: With respect to each Reference Obligation,
an amount in USD equal to the excess, if
any, of (a) the aggregate Par Price of the
Auction Certificates constituting such
Reference Obligation over (b) the aggregate
Auction Proceeds of the Auction
Certificates constituting such Reference
Obligation.
Auction Excess Amount: With respect to each Reference Obligation,
the amount equal to the excess, if any, of
(a) the aggregate Auction Proceeds of the
Auction Certificates constituting such
Reference Obligation over (b) the aggregate
Par Price of the Auction Certificates
constituting such Reference Obligation.
External ID: 9336865/ Risk ID: 562350087
Business Day: New York and any other city in which the
corporate Trust Office of the Securities
Administrator is located.
Calculation Agent: CSIN.
3. Account Details:
Payments to CSIN: As advised separately in writing.
Payments to Counterparty: ▇▇▇▇▇ Fargo Bank, NA
ABA ▇▇▇-▇▇▇-▇▇▇
Account Number: ▇▇▇▇▇▇▇▇▇▇
Account Name: Corporate Trust Clearing
FFC: ▇▇▇▇▇▇▇▇▇ 06-5 Swap Proceeds Account
Number: 50941402
For the purpose of facilitating this Transaction, an Affiliate of CSIN, which is
organized in the United States of America (the "Agent"), has acted as agent for
CSIN. The Agent is not a principal with respect to this Transaction and shall
have no responsibility or liability to the parties as a principal with respect
to this Transaction.
Credit Suisse International is authorised and regulated by the Financial
Services Authority and has entered into this transaction as principal. The time
at which the above transaction was executed will be notified to Counterparty on
request.
External ID: 9336865/ Risk ID: 562350087
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing the copy of this Confirmation enclosed for that purpose
and returning it to us.
Yours faithfully,
Credit Suisse International
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
Confirmed as of the date first written above:
▇▇▇▇▇ FARGO BANK, N.A., not in its individual capacity but solely as Securities
Administrator under the Pooling and Servicing Agreement, acting as Auction
Administrator for the benefit of the Holders of the Auction Certificates
By: /s/ ▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
External ID: 9336865/ Risk ID: 562350087
