Ref No. 37895
Dated: May 24, 2006
RATE CAP TRANSACTION
RE: BNY REFERENCE NO. 37895
Ladies and Gentlemen:
The purpose of this letter agreement ("AGREEMENT") is to confirm the terms and
conditions of the rate cap Transaction entered into on the Trade Date specified below (the
"Transaction") between The Bank of New York ("BNY"), a trust company duly organized and
existing under the laws of the State of New York and Deutsche Bank Trust Company Americas, not
individually, but solely as Trustee on behalf of RALI Series 2006-QO5 (the "COUNTERPARTY").
This Agreement, which evidences a complete and binding agreement between you and us to enter
into the Transaction on the terms set forth below, constitutes a "Confirmation" as referred to
in the "ISDA FORM MASTER AGREEMENT" (as defined below), as well as a "Schedule" as referred to
in the ISDA Form Master Agreement
1. FORM OF AGREEMENT. This Agreement is subject to the 2000 ISDA Definitions (the
"DEFINITIONS"), as published by the International Swaps and Derivatives Association, Inc.
("ISDA"). You and we have agreed to enter into this Agreement in lieu of negotiating a
Schedule to the 1992 ISDA Master Agreement (Multicurrency--Cross Border) form (the "ISDA FORM
MASTER AGREEMENT"). An ISDA Form Master Agreement, as modified by the Schedule terms in
Section 4 of this Confirmation (the "MASTER AGREEMENT"), shall be deemed to have been executed
by you and us on the date we entered into the Transaction. In the event of any inconsistency
between the provisions of this Agreement and the Definitions or the ISDA Form Master
Agreement, this Agreement shall prevail for purposes of the Transaction. Capitalized terms
not otherwise defined herein or in the Definitions or the Master Agreement shall have the
meaning defined for such term in the Series Supplement, dated as of May 1, 2006, to the
Standard Terms of Pooling and Servicing Agreement, dated as of March 1, 2006 (together the
"Pooling and Servicing Agreement").
2. CERTAIN TERMS. The terms of the particular Transaction to which this Confirmation
relates are as follows:
Type of Transaction: Rate Cap
Notional Amount: With respect to any Calculation Period, the lesser of:
(i) the amount set forth on Schedule I attached hereto
for such Calculation Period and (ii) the aggregate
Certificate Principal Balance of the Class A
Certificates and Class M Certificates (as defined in the
Pooling and Servicing Agreement) for such Floating Rate
Payer Payment Date.
The Trustee under the Pooling and Servicing Agreement
shall provide at least five (5) business days notice
prior to each Floating Rate Payer Payment Date for each
Calculation Period to The Bank of New York if the
aggregate Certificate Principal Balance of the Class A
Certificates and Class M Certificates is less than the
Schedule I attached hereto.
Trade Date: May 24, 2006
Effective Date: January 25, 2009
Termination Date: March 25, 2017, subject to adjustment in accordance with
the Following Business Day Convention.
FIXED AMOUNTS:
Fixed Amount Payer: Counterparty
Fixed Amount: USD 1,973,000.00
Fixed Amount
Payment Date: May 30, 2006
FLOATING AMOUNTS:
Floating Rate Payer: BNY
Cap Rate: For each Calculation Period, as set forth for such
period on
Schedule I attached hereto
Ceiling Rate: For each Calculation Period, as set forth for such
period on
Schedule I attached hereto
Floating Rate Payer
Period End Dates: The 25th calendar day of each month during the Term of
this Transaction, commencing February 25, 2009 and
ending on the Termination Date, with No Adjustment.
Floating Rate Payer
Payment Dates: Early Payment shall be applicable. The Floating Rate
Payer Payment Date shall be two (2) Business Days
preceding each Floating Rate Payer Period End Date.
Floating Rate Option: USD-LIBOR-BBA; provided, however, if the Floating Rate
determined from such Floating Rate Option for a
Calculation Period is greater than the Ceiling Rate then
the Floating Rate for such Calculation Period shall be
deemed equal to the Ceiling Rate.
Designated Maturity: One month
Floating Rate Day
Count Fraction: 30/360
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable
Business Days: New York and Los Angeles
Calculation Agent: BNY
3. ADDITIONAL PROVISIONS:
1) RELIANCE. Each party hereto is hereby advised and acknowledges that the other
party has engaged in (or refrained from engaging in) substantial financial
transactions and has taken (or refrained from taking) other material actions in
reliance upon the entry by the parties into the Transaction being entered into on the
terms and conditions set forth herein.
2) TRANSFER, AMENDMENT AND ASSIGNMENT. No transfer, amendment, waiver,
supplement, assignment or other modification of this Transaction shall be permitted
by either party unless each of Standard & Poor's Ratings Service, a division of The
XxXxxx-Xxxx Companies, Inc ("S&P") and Xxxxx'x Investors Service, Inc. ("MOODY'S"),
has been provided notice of the same and confirms in writing (including by facsimile
transmission) that it will not downgrade, qualify, withdraw or otherwise modify its
then-current ratings on the Certificates issued under the Pooling and Servicing
Agreement (the "CERTIFICATES").
4. PROVISIONS DEEMED INCORPORATED IN A SCHEDULE TO THE MASTER AGREEMENT:
1) NO NETTING BETWEEN TRANSACTIONS. The parties agree that subparagraph (ii) of Section
2(c) of the ISDA Form Master Agreement will apply to any Transaction.
2) TERMINATION PROVISIONS. Subject to the provisions of Paragraph 4(11) below,
for purposes of the Master Agreement:
(a) "SPECIFIED ENTITY" is not applicable to BNY or Counterparty for any
purpose.
(b) "BREACH OF AGREEMENT" provision of Section 5(a)(ii) will not apply to
BNY or Counterparty.
(c) "CREDIT SUPPORT DEFAULT" provisions of Section 5(a)(iii) will not apply
to BNY or Counterparty.
(d) "MISREPRESENTATION" provisions of Section 5(a)(iv) will not apply to
BNY or Counterparty.
(e) "DEFAULT UNDER SPECIFIED TRANSACTION" is not applicable to BNY or
Counterparty for any purpose, and, accordingly, Section 5(a)(v) shall
not apply to BNY or Counterparty.
(f) The "CROSS DEFAULT" provisions of Section 5(a)(vi) will not apply to
BNY or to Counterparty.
(g) The "BANKRUPTCY" provisions of Section 5(a)(vii)(2) will not apply to
Counterparty.
(h) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(iv) will not
apply to BNY or Counterparty.
(i) The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a) will not
apply to BNY or to Counterparty.
(j) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e) of this
Agreement:
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(k) "TERMINATION CURRENCY" means United States Dollars.
3) TAX REPRESENTATIONS.
(a) PAYER REPRESENTATIONS. For the purpose of Section 3(e) of this
Agreement, BNY and Counterparty make the following representations:
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:
(i) 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
of its legal or commercial position.
(b) PAYEE REPRESENTATIONS. For the purpose of Section 3(f) of this
Agreement, BNY and Counterparty make the following representations.
(i) The following representation will apply to BNY:
(x) It is a "U.S. person" (as that term is used in section
1.1441-4(a)(3)(ii) of the United States Treasury Regulations)
for United States federal income tax purposes, (y) it is a trust
company duly organized and existing under the laws of the State
of New York, and (y) its U.S. taxpayer identification number is
000000000.
(ii) The following representation will apply to the Counterparty:
The beneficial owner of payments made to it under this Agreement
is a "U.S. person" (as that term is used in section
1.1441-4(a)(3)(ii) of United States Treasury Regulations) for
United States federal income tax purposes.
4) DOCUMENTS TO BE DELIVERED. FOR THE PURPOSE OF SECTION 4(A):
(a) Tax forms, documents or certificates to be delivered are:
PARTY REQUIRED TO COVERED BY SECTION
DELIVER DOCUMENT FORM/DOCUMENT/ CERTIFICATE DATE BY WHICH 3(D) REPRESENTATION
TO BE DELIVERED
BNY and Any document required or reasonably Upon the execution and Yes
Counterparty requested to allow the other party to delivery of this
make payments under this Agreement Agreement
without any deduction or withholding for
or on the account of any tax.
(b) Other documents to be delivered are:
PARTY REQUIRED TO FORM/DOCUMENT/ CERTIFICATE DATE BY WHICH TO COVERED BY SECTION
DELIVER DOCUMENT BE DELIVERED 3(D) REPRESENTATION
BNY A certificate of an authorized officer of Upon the execution and Yes
the party, as to the incumbency and delivery of this
authority of the respective officers of the Agreement
party signing this Agreement, any relevant
Credit Support Document, or any
Confirmation, as the case may be
Counterparty (i) a copy of the executed Pooling and Upon the execution and Yes
Servicing Agreement, and (ii) an incumbency delivery of this
certificate verifying the true signatures Agreement.
and authority of the person or persons
signing this letter agreement on behalf of
the Counterparty
BNY A copy of the most recent publicly Promptly after request Yes
available regulatory call report. by the other party
BNY Legal Opinion as to enforceability of this Upon the execution and Yes
Agreement delivery of this
Agreement.
Counterparty Certified copy of the Board of Directors Upon the execution and Yes
resolution (or equivalent authorizing delivery of this
documentation) which sets forth the Agreement.
authority of each signatory to the
Confirmation signing on its behalf and the
authority of such party to enter into
Transactions contemplated and performance
of its obligations hereunder.
5) MISCELLANEOUS.
(a) ADDRESS FOR NOTICES: For the purposes of Section 12(a) of this
Agreement:
Address for notices or communications to BNY:
The Bank of New York
Swaps and Derivative Products Group
Global Market Division
00 Xxx Xxxx 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
with a copy to:
The Bank of New York
Swaps and Derivative Products Group
00 Xxx Xxxx 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx
Tele: 000-000-0000
Fax: 000-000-0000/5837
(For all purposes)
Address for notices or communications to the Counterparty:
Deutsche Bank Trust Company Americas
Attn: Trust Administration-
RALI 2006-QO5
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, XX 00000
(For all purposes)
(b) PROCESS AGENT. For the purpose of Section 13(c):
BNY appoints as its Process Agent: Not Applicable
The Counterparty appoints as its Process Agent: Not Applicable
(c) OFFICES. The provisions of Section 10(a) will not apply to this
Agreement; neither BNY nor the Counterparty have any Offices other than
as set forth in the Notices Section and BNY agrees that, for purposes
of Section 6(b) of this Agreement, it shall not in future have any
Office other than one in the United States.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:
BNY is not a Multibranch Party.
The Counterparty is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent is BNY.
(f) CREDIT SUPPORT DOCUMENT. Not applicable for either BNY or the
Counterparty.
(g) CREDIT SUPPORT PROVIDER.
BNY: Not Applicable
The Counterparty: Not Applicable
(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 conflict of law provisions thereof other than New
York General Obligations Law Sections 5-1401 and 5-1402.
(i) SEVERABILITY. If any term, provision, covenant, or condition of this
Agreement, or the application thereof to any party or circumstance,
shall be held to be invalid or unenforceable (in whole or in part) for
any reason, the remaining terms, provisions, covenants, and conditions
hereof shall continue in full force and effect as if this Agreement had
been executed with the invalid or unenforceable portion eliminated, so
long as this Agreement as so modified continues to express, without
material change, the original intentions of the parties as to the
subject matter of this Agreement and the deletion of such portion of
this Agreement will not substantially impair the respective benefits or
expectations of the parties.
The parties shall endeavor to engage in good faith negotiations to
replace any invalid or unenforceable term, provision, covenant or
condition with a valid or enforceable term, provision, covenant or
condition, the economic effect of which comes as close as possible to
that of the invalid or unenforceable term, provision, covenant or
condition.
(j) RECORDING OF CONVERSATIONS. Each party (i) consents to the recording
of telephone conversations between the trading, marketing and other
relevant personnel of the parties in connection with this Agreement or
any potential Transaction, (ii) agrees to obtain any necessary consent
of, and give any necessary notice of such recording to, its relevant
personnel and (iii) agrees, to the extent permitted by applicable law,
that recordings may be submitted in evidence in any Proceedings.
(k) WAIVER OF JURY TRIAL. Each party waives any right it may have to a
trial by jury in respect of any Proceedings relating to this Agreement
or any Credit Support Document.
(l) [RESERVED].
(m) LIMITATION ON INSTITUTION OF BANKRUPTCY PROCEEDINGS. BNY shall not
institute against or cause any other person to institute against, or
join any other person in instituting against the Counterparty, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, under any of the laws of the United States or any other
jurisdiction, for a period of one year and one day (or, if longer, the
applicable preference period) following indefeasible payment in full of
the Certificates.
(n) REMEDY OF FAILURE TO PAY OR DELIVER. The ISDA Form Master Agreement in
hereby amended as follows:
The word "third" shall be replaced by the word "second" in the third
line of Section 5(a)(i) of the ISDA Form Master Agreement.
(o) "AFFILIATE" will have the meaning specified in Section 14 of the ISDA
Form Master Agreement, provided that the Counterparty shall be deemed
not to have any Affiliates for purposes of this Agreement, including
for purposes of Section 6(b)(ii).
6) ADDITIONAL REPRESENTATIONS. Section 3 of the ISDA Form Master Agreement is
hereby amended by adding, before the close parenthesis in the introductory
sentence thereof, the words ", and, in the case of the representations in
Section 3(i), at all times", and, at the end thereof, the following Sections
3(g), 3(h) and 3(i):
"(g) RELATIONSHIP BETWEEN PARTIES.
(1) NONRELIANCE. It is not relying on any statement or
representation of the other party regarding the Transaction
(whether written or oral), other than the representations
expressly made in this Agreement or the Confirmation in respect
of that Transaction.
(2) EVALUATION AND UNDERSTANDING.
(i) It is acting for its own account and has the capacity to
evaluate (internally or through independent professional
advice) the Transaction and has made its own decision to
enter into the Transaction and, in the case of ______,
it has entered into this Agreement pursuant to direction
received by it under the Pooling and Servicing
Agreement; it is not relying on any communication
(written or oral) of the other party as investment
advice or as a recommendation to enter into such
transaction; it being understood that information and
explanations related to the terms and conditions of such
transaction shall not be considered investment advice or
a recommendation to enter into such 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 the transaction; and
(ii) It understands the terms, conditions and risks of the
Transaction and is willing and able to accept those
terms and conditions and to assume (and does, in fact
assume) those risks, financially and otherwise.
(3) PRINCIPAL. The other party is not acting as a fiduciary or an
advisor for it in respect of this Transaction.
(h) EXCLUSION FROM COMMODITIES EXCHANGE ACT. (A) It is an "eligible
contract participant" within the meaning of Section 1a(12) of the
Commodity Exchange Act, as amended; (B) this Agreement and each
Transaction is subject to individual negotiation by such party; and (C)
neither this Agreement nor any Transaction will be executed or traded
on a "trading facility" within the meaning of Section 1a(33) of the
Commodity Exchange Act, as amended.
(i) ERISA. (PENSION PLANS). It is not a pension plan or employee benefits
plan and it is not using assets of any such plan or assets deemed to be
assets of such a plan in connection with this Transaction.
7) SET-OFF. Notwithstanding any provision of this Agreement or any other
existing or future agreement (but without limiting the provisions of Section
2(c) and Section 6 of the Master Agreement), each party irrevocably waives any
and all rights it may have to set off, net, recoup or otherwise withhold or
suspend or condition payment or performance of any obligation between it and
the other party hereunder against any obligation between it and the other
party under any other agreements. The last sentence of the first paragraph of
Section 6(e) of the ISDA Form Master Agreement shall not apply for purposes of
this Transaction.
8) ADDITIONAL TERMINATION EVENTS. The following Additional Termination Events
will apply:
(i) DOWNGRADE. BNY fails to comply with the Downgrade Provisions as set
forth in Paragraph 4(9). BNY shall be the sole Affected Party.
9) RATINGS DOWNGRADE. For purposes of each Transaction:
(i) CERTAIN DEFINITIONS.
(A) "RATING AGENCY CONDITION" means, with respect to any particular
proposed act or omission to act hereunder, that the Trustee shall have
received prior written confirmation from each of the applicable Rating
Agencies, and shall have provided notice thereof to BNY, that the
proposed action or inaction would not cause a downgrade or withdrawal
of their then-current ratings of the Certificates.
(B) "QUALIFYING RATINGS" means, with respect to the debt of any
assignee or guarantor under Paragraph 4(9)(ii) below,
(x) a short-term unsecured and unsubordinated debt rating of
"P-1" (not on watch for downgrade), and a long-term unsecured and
unsubordinated debt of "A1" (not on watch for downgrade) (or, if
it has no short-term unsecured and unsubordinated debt rating, a
long term rating of "Aa3" (not on watch for downgrade) by
Xxxxx'x, and
(y) a short-term unsecured and unsubordinated debt rating of
"A-1" by S&P, and
(z) a short-term unsecured and unsubordinated debt rating of
"F-1" by Fitch.
(C) A "COLLATERALIZATION EVENT" shall occur with respect to BNY (or
any applicable credit support provider) if:
(x) its short-term unsecured and unsubordinated debt rating
is reduced to "P-1" (and is on watch for downgrade) or below,
and its long-term unsecured and unsubordinated debt is reduced
to "A1" (and is on watch for downgrade) or below (or, if it has
no short-term unsecured and unsubordinated debt rating, its long
term rating is reduced to "Aa3" (and is on watch for downgrade)
or below) by Xxxxx'x, or
(y) its short-term unsecured and unsubordinated debt rating
is reduced below "A-1" by S&P; or
(z) its short-term unsecured and unsubordinated debt rating
is reduced below "F-1" by Fitch.
(D) A "RATINGS EVENT" shall occur with respect to BNY (or any
applicable credit support provider) if:
(x) its short-term unsecured and unsubordinated debt rating
is withdrawn or reduced to "P-2" or below by Xxxxx'x and its
long-term unsecured and unsubordinated debt is reduced to "A3"
or below (or, if it has no short-term unsecured and
unsubordinated debt rating, its long term rating is reduced to
"A2" or below) by Xxxxx'x, or
(y) its long-term unsecured and unsubordinated debt rating
is withdrawn or reduced below "BBB-" by S&P, or
(z) its long-term unsecured and unsubordinated debt rating
is withdrawn or reduced below "BBB-" by Fitch.
For purposes of (C) and (D) above, such events include those occurring
in connection with a merger, consolidation or other similar transaction
by BNY or any applicable credit support provider, but they shall be
deemed not to occur if, within 30 days (or, in the case of a Ratings
Event, 10 Business Days) thereafter, each of the applicable Rating
Agencies has reconfirmed the ratings of the Certificates, as
applicable, which were in effect immediately prior thereto. For the
avoidance of doubt, a downgrade of the rating on the Certificates could
occur in the event that BNY does not post sufficient collateral.
(ii) ACTIONS TO BE TAKEN UPON OCCURRENCE OF EVENT. Subject, in each case
set forth in (A) and (B) below, to satisfaction of the Rating Agency Condition:
(A) COLLATERALIZATION EVENT. If a Collateralization Event occurs
with respect to BNY (or any applicable credit support provider), then
BNY shall, at its own expense, within thirty (30) days of such
Collateralization Ratings Event:
(1) post collateral under agreements and other instruments
approved by the Counterparty, such approval not to be
unreasonably withheld, which will be sufficient to restore the
immediately prior ratings of the Certificates,
(2) assign the Transaction to a third party, the ratings of
the debt of which (or of the guarantor of which) meet or exceed
the Qualifying Ratings, on terms substantially similar to this
Confirmation, which party is approved by the Counterparty, such
approval not to be unreasonably withheld,
(3) obtain a guaranty of, or a contingent agreement of,
another person, the ratings of the debt of which (or of the
guarantor of which) meet or exceed the Qualifying Ratings, to
honor BNY's obligations under this Agreement, provided that such
other person is approved by the Counterparty, such approval not
to be unreasonably withheld, or
(4) establish any other arrangement approved by the
Counterparty, such approval not to be unreasonably withheld,
which will be sufficient to restore the immediately prior
ratings of their Certificates.
(B) RATINGS EVENT. If a Ratings Event occurs with respect to BNY
(or any applicable credit support provider), then BNY shall, at its own
expense, within ten (10) Business Days of such Ratings Event:
(1) assign the Transaction to a third party, the ratings of
the debt of which (or of the guarantor of which) meet or exceed
the Qualifying Ratings, on terms substantially similar to this
Confirmation, which party is approved by the Counterparty, such
approval not to be unreasonably withheld,
(2) obtain a guaranty of, or a contingent agreement of,
another person, the ratings of the debt of which (or of the
guarantor of which) meet or exceed the Qualifying Ratings, to
honor BNY's obligations under this Agreement, provided that such
other person is approved by the Counterparty, such approval not
to be unreasonably withheld, or
(3) establish any other arrangement approved by the
Counterparty, such approval not to be unreasonably withheld,
which will be sufficient to restore the immediately prior
ratings of the Certificates.
10) COMPLIANCE WITH REGULATION AB. It shall be a disclosure event ("DISCLOSURE EVENT")
if, on any Business Day after the date hereof, Sponsor requests from BNY the
financial information described in Item 1115(b) of Regulation AB under the
Securities Act of 1933, as amended, and the Securities Exchange Act of 1934,
as amended (the "EXCHANGE ACT") ("REGULATION AB"), (such request to be based
on the reasonable determination by Sponsor, in good faith, that such
information is required under Regulation AB) (the "REG AB FINANCIAL
Disclosure"). Within 10 Business Days of the occurrence of a Reg AB
Disclosure Event, BNY, at its own expense, shall (a) provide to the Sponsor
the Reg AB Financial Disclosure, or (b) secure another entity to replace BNY
as party to this Agreement on terms substantially similar to this Agreement
and subject to prior notification to the applicable Rating Agencies, the debt
rating of which entity (or guarantor therefor) meets or exceeds the qualified
ratings (or which satisfies the Rating Agency Condition) and which entity is
able to comply with the requirement of Item 1115(b) of Reg AB. If permitted
by Regulation AB, any required Reg AB Financial Disclosure may be provided by
incorporation by reference from reports filed pursuant to the Exchange Act.
11) ADDITIONAL PROVISIONS. Notwithstanding the terms of Sections 5 and 6 of the
ISDA Form Master Agreement, if Counterparty has satisfied its payment
obligations under Section 2(a)(i) of the ISDA Form Master Agreement, and
shall, at the time, have no future payment or delivery obligation, whether
absolute or contingent, then unless BNY is required pursuant to appropriate
proceedings to return to Counterparty or otherwise returns to Counterparty
upon demand of Counterparty any portion of such payment, (a) the occurrence of
an event described in Section 5(a) of the ISDA Form Master Agreement with
respect to Counterparty shall not constitute an Event of Default or Potential
Event of Default with respect to Counterparty as the Defaulting Party and (b)
BNY shall be entitled to designate an Early Termination Date pursuant to
Section 6 of the ISDA Form Master Agreement only as a result of a Termination
Event set forth in either Section 5(b)(i) or Section 5(b)(ii) of the ISDA Form
Master Agreement with respect to BNY as the Affected Party or Section
5(b)(iii) of the ISDA Form Master Agreement with respect to BNY as the
Burdened Party. For purposes of the Transaction to which this Agreement
relates, Counterparty's only obligation under Section 2(a)(i) of the ISDA Form
Master Agreement is to pay the Fixed Amount on the Fixed Rate Payer Payment
Date.
12) PAYMENTS. BNY will, unless otherwise directed by the Trustee, make all
payments hereunder to the Trustee. Payment made to the Trustee at the account
specified herein or to another account specified in writing by the Trustee
shall satisfy the payment obligations of BNY hereunder to the extent of such
payment.
13) LIMITATION OF TRUSTEE LIABILITY. Notwithstanding anything herein to the
contrary, it is expressly understood and agreed by the parties hereto that (a)
this letter agreement is executed and delivered by Deutsche Bank Trust Company
Americas ("DBTCA"), not individually or personally, but solely as Trustee of
the RALI Series 2006-QO5 Trust, in the exercise of the powers and authority
conferred and vested in it, (b) each of the representations, undertakings and
agreements herein made on the part of the RALI Series 2006-QO5 Trust is made
and intended not as personal representations, undertakings and agreements by
DBTCA but is made and intended for the purpose of binding only the RALI Series
2006-QO5 Trust, (c) nothing herein contained shall be construed as creating
any liability on DBTCA individually or personally, to perform any covenant
either expressed or implied contained herein, all such liability, if any,
being expressly waived by the parties hereto and by any Person claiming by,
through or under the parties hereto; provided that nothing in this paragraph
shall relieve DBTCA from performing its duties and obligations under the
Pooling and Servicing Agreement in accordance with the standard of care set
forth therein, and (d) under no circumstances shall DBTCA be personally liable
for the payment of any indebtedness or expenses of the RALI Series 2006-QO5
Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the RALI Series
2006-QO5 Trust under this letter agreement or any other related documents.
5. ACCOUNT DETAILS AND SETTLEMENT INFORMATION:
Payments to BNY:
The Bank of New York
Derivative Products Support Department
00 Xxx Xxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
ABA #000000000
Account #000-0000-000
Reference: Interest Rate Cap
Payments to Counterparty:
Deutsche Bank Trust Company Americas
ABA 000-000-000
A/C # 01419663
A/C Name NYLTD Funds Control - Stars West
Ref: RALI 2006-QO5 CAP Funds
6. COUNTERPARTS. This Agreement may be executed in several counterparts, each of which
shall be deemed an original but all of which together shall constitute one and the same
instrument.
Please confirm that the foregoing correctly sets forth the terms of our agreement
by executing this agreement and returning it via facsimile to Derivative Products Support
Dept., Attn: Xxxxx Xx-Xxxxx at 000-000-0000/5837. Once we receive this we will send you
two original confirmations for execution.
We are very pleased to have executed this Transaction with you and we look
forward to completing other transactions with you in the near future.
Very truly yours,
THE BANK OF NEW YORK
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Assistant Vice President
The Counterparty, acting through its duly authorized signatory, xxxxxx agrees to, accepts
and confirms the terms of the foregoing as of the Trade Date.
DEUTSCHE BANK TRUST COMPANY AMERICAS
SOLELY AS TRUSTEE FOR RALI SERIES 2006-QO5
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
SCHEDULE I
All dates subject to adjustment in accordance with the Following Business Day
Convention.
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ACCRUAL START ACCRUAL END NOTIONAL AMOUNT (IN EILING RATE (%)
DATE DATE USD) CAP RATE (%)C
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1/25/2009 2/25/2009 489,279,434 7.30 7.77
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2/25/2009 3/25/2009 472,605,732 7.30 7.77
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3/25/2009 4/25/2009 454,977,383 7.30 7.77
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4/25/2009 5/25/2009 438,115,918 7.30 7.77
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5/25/2009 6/25/2009 415,668,964 7.30 7.77
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6/25/2009 7/25/2009 399,852,202 7.30 7.77
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7/25/2009 8/25/2009 384,541,994 7.30 7.77
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8/25/2009 9/25/2009 369,889,816 7.30 7.77
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9/25/2009 10/25/2009 355,788,557 7.30 7.77
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10/25/2009 11/25/2009 342,142,200 7.30 7.77
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11/25/2009 12/25/2009 323,869,926 7.30 7.77
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12/25/2009 1/25/2010 311,523,178 7.30 7.70
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1/25/2010 2/25/2010 299,712,254 7.30 7.60
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2/25/2010 3/25/2010 288,351,272 7.30 7.51
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3/25/2010 4/25/2010 277,235,254 7.30 7.45
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4/25/2010 5/25/2010 266,722,567 7.30 7.30
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5/25/2010 6/25/2010 251,738,188 7.14 7.14
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6/25/2010 7/25/2010 242,274,185 6.99 6.99
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7/25/2010 8/25/2010 233,106,459 6.83 6.83
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8/25/2010 9/25/2010 224,323,865 6.68 6.68
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9/25/2010 10/25/2010 215,864,857 6.53 6.53
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10/25/2010 11/25/2010 207,669,165 6.37 6.37
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11/25/2010 12/25/2010 195,263,447 6.22 6.22
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12/25/2010 1/25/2011 187,901,687 6.07 6.10
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1/25/2011 2/25/2011 180,843,880 5.91 6.10
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2/25/2011 3/25/2011 174,037,675 5.76 6.10
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3/25/2011 4/25/2011 167,375,447 5.60 6.10
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4/25/2011 5/25/2011 161,046,289 5.30 6.10
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5/25/2011 6/25/2011 159,806,077 5.30 6.17
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6/25/2011 7/25/2011 154,219,195 5.30 6.31
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7/25/2011 8/25/2011 148,649,369 5.30 6.47
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8/25/2011 9/25/2011 143,311,188 5.30 6.61
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9/25/2011 10/25/2011 138,170,995 5.30 6.76
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10/25/2011 11/25/2011 133,195,586 5.30 6.90
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11/25/2011 12/25/2011 124,421,975 5.30 7.03
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12/25/2011 1/25/2012 119,979,756 5.30 7.18
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1/25/2012 2/25/2012 115,722,617 5.30 7.32
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2/25/2012 3/25/2012 111,620,946 5.30 7.45
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3/25/2012 4/25/2012 107,625,431 5.30 7.59
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4/25/2012 5/25/2012 103,831,920 5.30 7.71
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5/25/2012 6/25/2012 97,206,689 5.30 7.84
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6/25/2012 7/25/2012 93,779,996 5.30 7.97
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7/25/2012 8/25/2012 90,444,018 5.30 8.08
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8/25/2012 9/25/2012 87,245,750 5.30 8.20
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9/25/2012 10/25/2012 84,161,861 5.30 8.30
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10/25/2012 11/25/2012 81,167,915 5.30 8.40
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11/25/2012 12/25/2012 75,485,548 5.30 8.49
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12/25/2012 1/25/2013 72,712,240 5.30 8.57
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1/25/2013 2/25/2013 70,053,135 5.30 8.67
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2/25/2013 3/25/2013 67,488,450 5.30 8.76
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3/25/2013 4/25/2013 64,978,572 5.30 8.82
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4/25/2013 5/25/2013 62,589,767 5.30 8.88
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5/25/2013 6/25/2013 58,107,051 5.30 8.95
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6/25/2013 7/25/2013 55,884,229 5.30 9.00
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7/25/2013 8/25/2013 53,733,261 5.30 9.04
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8/25/2013 9/25/2013 51,661,350 5.30 9.09
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9/25/2013 10/25/2013 49,665,161 5.30 9.11
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10/25/2013 11/25/2013 47,743,163 5.30 9.14
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11/25/2013 12/25/2013 45,892,202 5.30 9.16
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12/25/2013 1/25/2014 44,110,029 5.30 9.15
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1/25/2014 2/25/2014 42,395,192 5.30 9.16
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2/25/2014 3/25/2014 40,744,440 5.30 9.16
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3/25/2014 4/25/2014 39,149,580 5.30 9.14
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4/25/2014 5/25/2014 37,621,177 5.30 9.12
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5/25/2014 6/25/2014 36,148,600 5.30 9.10
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6/25/2014 7/25/2014 34,731,515 5.30 9.07
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7/25/2014 8/25/2014 33,367,810 5.30 9.03
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8/25/2014 9/25/2014 32,056,569 5.30 8.98
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9/25/2014 10/25/2014 30,796,043 5.30 8.94
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10/25/2014 11/25/2014 29,584,015 5.30 8.89
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11/25/2014 12/25/2014 28,418,867 5.30 8.82
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12/25/2014 1/25/2015 27,299,262 5.30 8.73
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1/25/2015 2/25/2015 26,223,877 5.30 8.64
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2/25/2015 3/25/2015 25,190,973 5.30 8.56
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3/25/2015 4/25/2015 24,190,536 5.30 8.46
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4/25/2015 5/25/2015 23,237,595 5.30 8.36
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5/25/2015 6/25/2015 22,319,652 5.30 8.27
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6/25/2015 7/25/2015 21,439,981 5.30 8.16
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7/25/2015 8/25/2015 20,592,198 5.30 8.06
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8/25/2015 9/25/2015 19,779,739 5.30 7.94
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9/25/2015 10/25/2015 18,999,220 5.30 7.83
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10/25/2015 11/25/2015 18,247,671 5.30 7.71
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11/25/2015 12/25/2015 17,527,519 5.30 7.57
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12/25/2015 1/25/2016 16,834,724 5.30 7.45
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1/25/2016 2/25/2016 16,170,974 5.30 7.32
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2/25/2016 3/25/2016 15,533,932 5.30 7.20
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3/25/2016 4/25/2016 14,914,811 5.30 7.07
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4/25/2016 5/25/2016 14,326,801 5.30 6.94
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5/25/2016 6/25/2016 13,757,898 5.30 6.81
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6/25/2016 7/25/2016 13,214,176 5.30 6.68
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7/25/2016 8/25/2016 12,688,231 5.30 6.55
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8/25/2016 9/25/2016 12,185,528 5.30 6.42
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9/25/2016 10/25/2016 11,702,195 5.30 6.29
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10/25/2016 11/25/2016 11,234,705 5.30 6.16
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11/25/2016 12/25/2016 10,787,472 5.30 6.04
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12/25/2016 1/25/2017 10,354,801 5.30 5.92
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1/25/2017 2/25/2017 9,940,876 5.30 5.79
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2/25/2017 3/25/2017 9,542,723 5.30 5.67
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