SCHEDULE
to the
Master Agreement
dated as of February 28, 2006
between
XXXXX FARGO BANK, N.A.,
not in its individual capacity
and but solely as trustee
CREDIT SUISSE INTERNATIONAL of the supplemental interest trust
created pursuant to the Pooling and
Servicing Agreement
_______________________________________ _________________________________________
("Party A") ("Party B")
Part 1
Termination Provisions.
(a) "Specified Entity" means in relation to Party A for the purpose of:
Section 5(a)(v), Not Applicable
Section 5(a)(vi), Not Applicable
Section 5(a)(vii), Not Applicable
Section 5(b)(iv), Not Applicable
and in relation to Party B for the purpose of:
Section 5(a)(v), Not Applicable
Section 5(a)(vi), Not Applicable
Section 5(a)(vii), Not Applicable
Section 5(b)(iv), Not Applicable
(b) "Specified Transaction" will have the meaning specified in Section 14
of this Agreement.
(c) Certain Events of Default. The following Events of Default will apply
to the parties as specified below, and the definition of "Event of
Default" in Section 14 is deemed to be modified accordingly:
Section 5(a)(i) (Failure to Pay or Deliver) will apply to Party A and
Party B.
Section 5(a)(ii) (Breach of Agreement) will not apply to Party A or
Party B.
Section 5(a)(iii) (Credit Support Default) will apply to Party A and
will not apply to Party B, unless Party A has posted collateral under
the Credit Support Annex, in which case it will apply to Party B.
Section 5(a)(iv) (Misrepresentation) will not apply to Party A or Party
B.
Section 5(a)(v) (Default under Specified Transaction) will not apply to
Party A or Party B.
Section 5(a)(vi) (Cross Default) will not apply to Party A or Party B.
Section 5(a)(vii) (Bankruptcy) will apply to Party A and Party B;
provided that clause (2) thereof shall not apply to Party B.
Section 5(a)(viii) (Merger without Assumption) will apply to Party A
and will not apply to Party B.
(d) Termination Events. The following Termination Events will apply to the
parties as specified below:
Section 5(b)(i) (Illegality) will apply to Party A and Party B.
Section 5(b)(ii) (Tax Event) will apply to Party A and Party B.
Section 5(b)(iii) (Tax Event upon Merger) will apply to Party A and
Party B.
Section 5(b)(iv) (Credit Event upon Merger) will not apply to Party A
or Party B.
(e) The "Automatic Early Termination" provision of Section 6(a) of this
Agreement will not apply to Party A or Party B.
(f) Payments on Early Termination. For the purpose of Section 6(e) of this
Agreement:
(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, in each case with respect to Party B as the sole
Affected Party (unless otherwise provided below):
(i) Party A fails to comply with the Downgrade Provisions as set
forth in Part 5(b). For all purposes of this Agreement, Party A shall
be the sole Affected Party with respect to the occurrence of a
Termination Event described in this Part 1(h)(i).
(ii) The Pooling and Servicing Agreement between Credit Suisse First
Boston Mortgage Securities Corp., as Depositor, DLJ Mortgage Capital,
Inc., as Seller, Xxxxx Fargo Bank, N.A., as Master Servicer, Servicer,
Back-Up Servicer and Trust Administrator, Select Portfolio Servicing
Inc., as a Servicer and as Special Servicer, and U.S. Bank National
Association, as Trustee, dated as of February 1, 2006, as amended from
time to time (the PSA or the Pooling and Servicing Agreement) or other
transaction document is amended or modified without the prior written
consent of Party A, where such consent is required under the terms of
the PSA.
(iii) The termination of the Trust pursuant to Section 11.01 of the PSA.
(iv) The Group 6 Interest Remittance Amount in respect of any Distribution
Date, not including any amounts distributed to the holders of the Class
6-A-1 Certificates on such Distribution Date from the Class 6-A-1 Swap
Account, is less than the Swap Fee Amount in respect of such
Distribution Date.
Part 2
Tax Representations.
(a) Payer Representations. For the purpose of Section 3(e) of this
Agreement, Party A will make the following representation and Party B will
make 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 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) of this Agreement by reason of material prejudice
to its legal or commercial position.
(b) Payee Representations. For the purpose of Section 3(f) of this
Agreement, Party A and Party B make the representations specified below,
if any:
(i) Party A makes the following representation to Party B:
(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 00-0000000.
(D) Party A is a partnership that agrees to comply with any withholding
obligation under Section 1446 of the Internal Revenue Code.
(ii) Party B makes no representations for the purpose of Section 3(f) of
this Agreement.
Part 3
Agreement to Deliver Documents.
For the purpose of Sections 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:-- None
(b) Other documents to be delivered are:--
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Party Form/Document/Certificate Date by which Covered by
required to be delivered Section 3(d)
to deliver Representation
document
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Party A Certified copy of the board of directors Concurrently Yes
and Party B resolution (or equivalent authorizing with the
documentation) which sets forth the execution and
authority of each signatory to this delivery of
Agreement and each Credit Support this Agreement.
Document (if any) signing on its behalf
and the authority of such party to enter
into Transactions contemplated and
performance of its obligations hereunder.
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Party A Incumbency certificate (or, if available Concurrently Yes
and Party B the current authorized signature book or with the
equivalent authorizing documentation) execution and
specifying the names, titles, authority delivery of
and specimen signatures of the persons this Agreement
authorized to execute this Agreement unless
which sets forth the specimen signatures previously
of each signatory to this Agreement, each delivered and
Confirmation and each Credit Support still in full
Document (if any) signing on its behalf. force and
effect.
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Party A An opinion of counsel to such party (or, Concurrently No
and B in the case of Party B, counsel to the with the
Trustee) as to the enforceability of this execution and
Agreement that is reasonably satisfactory delivery of
in form and substance to the other party. the
Confirmation
unless
previously
delivered and
still in full
force and
effect.
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Party B All opinions of counsel to Party B and Upon execution No
counsel to the Servicer, delivered as of of this
the Closing Date Agreement
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Party B Such other information in connection with Upon request No
the Certificates or the PSA in the
possession of Party B as Party A may
reasonably request.
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Party B An executed copy of the PSA. Within 30 days Yes
after the date
of this
Agreement.
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Part 4.
Miscellaneous.
(a) Addresses for Notices. For the purposes of Section 12(a) of this
Agreement:
Notwithstanding Section 12 (a) of the Agreement, all notices, including those
to be given under Section 5 or Section 6 of the Agreement, may be given by
facsimile transmission or electronic messaging system.
(i) (1) Address for notices or communications to Party A:-
Address:One Cabot Square Attention: (1) Head of Credit Risk
Management;
Xxxxxx X00 0XX (2) Global Head of OTC Operations,
Operations Department;
(3) General Counsel Europe -
Legal and Compliance
Department
Swift: Credit Suisse International CSFP GB2L
(2)For the purpose of facsimile notices or communications under this
Agreement:-
Facsimile No.: x00 (0) 000 000 0000
Attention: General Counsel Europe - Legal and Compliance Department
Telephone number for oral confirmation of receipt of facsimile in
legible form: x00 (0) 000 000 0000
Designated responsible employee for the purposes of Section
12(a)(iii): Senior Legal Secretary
With a copy to:
Facsimile No. x00 (0) 000 000 0000
Head of Credit Risk Management
With a copy to:
Facsimile No. x00 (0) 000 000 0000
Global Head of OTC Operations, Operations Department.
(ii) Address for notices or communications to Party B:-
Address: Xxxxx Fargo Bank, N.A., Attention: Client Manager, CSMC
as trustee for the ARMT 2006-1
supplemental interest
trust created pursuant
to the Pooling and
Servicing Agreement
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000 Facsimile No.: (000) 000-0000
(For all purposes.)
With copies to:-
Address: Credit Suisse Securities Attention: Xxxxx Xxxx
(USA) LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Telephone No.: (000) 000-0000 Facsimile No.: (000) 000-0000
(b) Process Agent. For the purposes of Section 13(c) of this Agreement:
Party A appoints as its Process Agent:
Credit Suisse Securities (USA) LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Legal and Compliance Department
Party B appoints as its Process Agent: Not applicable.
(c) Offices. With respect to Party A, the provisions of Section 10(a) will
apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Party A.
(f) Credit Support Document. Credit Support Document means:-
With respect to Party A: The Credit Support Annex.
With respect to Party B: The Credit Support Annex.
(g) Credit Support Provider.
Credit Support Provider means in relation to Party A: Not applicable.
Credit Support Provider means 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 relating in any way to this
Agreement will be governed by and construed in accordance with the laws of
the State of New York (without reference to choice of law doctrine other
than New York General Obligation Law Sections 5-1401 and 5-1402).
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) of this
Agreement will apply to all Transactions.
(j) "Affiliate." Each of Party A and Party B shall be deemed to have no
Affiliates.
Part 5.
Other Provisions.
(a) Definitions.
Any capitalized terms used but not otherwise defined in this Agreement
shall have the meanings assigned to them (or incorporated by reference) in
the PSA. In the event of any inconsistency between the terms of this
Agreement and the terms of the PSA, this Agreement will govern.
(b) Downgrade Provisions.
(1) It shall be a collateralization event (Collateralization Event)
if:
(A) (i) the unsecured, unguaranteed and otherwise unsupported
long-term senior debt obligations of Party A are rated below "A1" by
Xxxxx'x Investors Service, Inc. (Moody's) or are rated "A1" by
Moody's and such rating is on watch for possible downgrade (but only
for so long as it is on watch for possible downgrade) and (ii) the
unsecured, unguaranteed and otherwise unsupported short-term debt
obligations of Party A are rated below "P-1" by Moody's or are rated
"P-1" by Moody's and such rating is on watch for possible downgrade
(but only for so long as it is on watch for possible downgrade),
(B) no short-term rating is available from Moody's and the
unsecured, unguaranteed and otherwise unsupported long-term senior
debt obligations of Party A are rated below "Aa3" by Moody's or are
rated "Aa3" by Moody's and such rating is on watch for possible
downgrade (but only for so long as it is on watch for possible
downgrade),
(C) either (i) the unsecured, unguaranteed and otherwise unsupported
short-term debt obligations of Party A are rated below "A-1" by
Standard & Poor's Rating Services, a division of The XxXxxx-Xxxx
Companies, Inc. (S&P) or (ii) if Party A does not have a short-term
rating from S&P, the unsecured, unguaranteed and otherwise
unsupported long-term senior debt obligations of Party A are rated
below "A+" by S&P, or
(D) either (i) the unsecured, unguaranteed and otherwise unsupported
long-term senior debt obligations of Party A are rated below "A" by
Fitch, Inc. (Fitch), or (ii) the unsecured, unguaranteed and
otherwise unsupported short-term debt obligations of Party A are
rated below "F-1" by Fitch.
During any period in which a Collateralization Event is occurring, Party A
shall, at its own expense and within thirty (30) calendar days of such
Collateralization Event, either (i) post collateral according to the terms
of the 1994 ISDA Credit Support Annex to this Schedule, including
Paragraph 13 thereof (the "Credit Support Annex"), (ii) furnish a
guarantee of Party A's obligations under this Agreement that is subject to
the satisfaction of the S&P Ratings Condition from a guarantor that
satisfies the Hedge Counterparty Ratings Requirement (as defined herein),
or (iii) obtain a substitute counterparty (and provide prior written
notice to each Rating Agency with respect thereto) that (a) is reasonably
acceptable to Party B, (b) satisfies the Hedge Counterparty Ratings
Requirement and (c) assumes the obligations of Party A under this
Agreement (through an assignment and assumption agreement in form and
substance reasonably satisfactory to Party B) or replaces the outstanding
Transactions hereunder with transactions on identical terms, except that
Party A shall be replaced as counterparty, provided that such substitute
counterparty, as of the date of such assumption or replacement, must not,
as a result thereof, be required to withhold or deduct on account of tax
under the Agreement or the new transactions, as applicable, and such
assumption or replacement must not lead to a termination event or event of
default occurring in respect of the new transactions, as applicable,
provided further, that satisfaction of the S&P Ratings Condition shall be
required for any transfer of any Transactions under this clause (iii)
unless such transfer is in connection with the assignment and assumption
of this Agreement by such substitute counterparty without modification of
its terms, other than the following terms: party name, dates relevant to
the effective date of such transfer, tax representations (provided that
the representations in Part 2(a) are not modified) and any other
representations regarding the status of the substitute counterparty of the
type included in Section (c) of this Part 5 and notice information (in
which case, Party A shall provide written notice to S&P with respect
thereto). To the extent that Party A elects or is required to post
collateral pursuant to this Part 5(b)(1), Party A shall deliver to each
Rating Agency within thirty (30) calendar days of the occurrence of such
Collateralization Event an opinion acceptable to S&P as to the
enforceability of the Credit Support Annex and which confirms that,
notwithstanding the commencement of a case under the Bankruptcy Code with
respect to Party A, the collateral will (a) be available to meet swap
obligations notwithstanding the automatic stay and (b) if delivered
pre-bankruptcy, will not be subject to recovery as preferences or
constructive fraudulent conveyances, in each case subject to standard
qualifications and assumptions.
Hedge Counterparty Ratings Requirement shall mean (a) either (i) the
unsecured, unguaranteed and otherwise unsupported short-term debt
obligations of the substitute counterparty are rated at least "A-1" by S&P
or (ii) if the substitute counterparty does not have a short-term rating
from S&P, the unsecured, unguaranteed and otherwise unsupported long-term
senior debt obligations of the substitute counterparty are rated at least
"A+" by S&P, (b) either (i) the unsecured, unguaranteed and otherwise
unsupported long-term senior debt obligations of such substitute
counterparty are rated at least "A1" by Moody's (and if rated "A1" by
Moody's, such rating is not on watch for possible downgrade) and the
unsecured, unguaranteed and otherwise unsupported short-term debt
obligations of such substitute counterparty are rated at least "P-1" by
Moody's (and if rated "P-1" by Moody's, such rating is not on watch for
possible downgrade and remaining on watch for possible downgrade), or (ii)
if such substitute counterparty does not have a short-term debt rating
from Moody's, the unsecured, unguaranteed and otherwise unsupported
long-term senior debt obligations of such substitute counterparty are
rated at least "Aa3" by Moody's (and if rated "Aa3" by Moody's, such
rating is not on watch for possible downgrade), and (c) either (i) the
unsecured, unguaranteed and otherwise unsupported long-term senior debt
obligations of such substitute counterparty are rated at least "A" by
Fitch or (ii) the unsecured, unguaranteed and otherwise unsupported
short-term debt obligations of such substitute counterparty are rated at
least "F1" by Fitch. For the purpose of this definition, no direct or
indirect recourse against one or more shareholders of the substitute
counterparty (or against any Person in control of, or controlled by, or
under common control with, any such shareholder) shall be deemed to
constitute a guarantee, security or support of the obligations of the
substitute counterparty.
S&P Ratings Condition shall mean prior written confirmation from S&P that
a proposed action will not cause the downgrade or withdrawal of the then
current ratings of any outstanding Offered Certificates.
Rating Agency shall mean each of S&P, Xxxxx'x and Fitch.
(2) It shall be a ratings event (Ratings Event) if at any time after
the date hereof Party A shall fail to satisfy the Hedge Counterparty
Ratings Threshold. Hedge Counterparty Ratings Threshold shall mean (A)
the unsecured, unguaranteed and otherwise unsupported long-term senior
debt obligations of Party A are rated at least "BBB-" by S&P, (B) the
unsecured, unguaranteed and otherwise unsupported long-term senior debt
obligations of Party A are rated at least "A3" by Moody's (and such rating
is not on watch for possible downgrade) and the unsecured, unguaranteed
and otherwise unsupported short-term debt obligations of Party A are rated
at least "P-2" by Moody's (and such rating is not on watch for possible
downgrade), and (C) either (i) the unsecured, unguaranteed and otherwise
unsupported long-term senior debt obligations of Party A are rated at
least "BBB+" by Fitch, or (ii) the unsecured, unguaranteed and otherwise
unsupported short-term debt obligations of Party A are rated at least
"F-2" by Fitch.
(3) Following a Ratings Event, Party A shall take the following
actions:
(a) Party A, at its sole expense, shall (i) commence actively
to seek to obtain a substitute counterparty and, in the case of a
Ratings Event pursuant to subparagraph (A) of the definition of
"Hedge Counterparty Ratings Threshold" or if at any time after the
date hereof S&P withdraws all of Party A's ratings and no longer
rates Party A, Party A shall within 10 Business Days, subject to
extension upon S&P Ratings Condition, of the Ratings Event obtain a
substitute counterparty (and provide written notice to each Rating
Agency with respect thereto), that (A) satisfies the Hedge
Counterparty Ratings Requirement and (B) assumes the obligations of
Party A under this Agreement (through an assignment and assumption
agreement in form and substance reasonably satisfactory to Party B)
or replaces the outstanding Transactions hereunder with transactions
on identical terms, except that Party A shall be replaced as
counterparty, provided that such substitute counterparty, as of the
date of such assumption or replacement, must not, as a result
thereof, be required to withhold or deduct on account of tax under
the Agreement or the new transactions, as applicable, and such
assumption or replacement must not lead to a termination event or
event of default occurring in respect of the new transactions, as
applicable; provided further that satisfaction of the S&P Ratings
Condition shall be required within such 10 Business Days or longer
period, as applicable, for any transfer of any Transaction under
this clause (a)(i) unless such transfer is in connection with the
assignment and assumption of this Agreement without modification of
its terms by such counterparty, other than the following terms:
party name, dates relevant to the effective date of such transfer,
tax representations (provided that the representations in Part 2(a)
are not modified) and any other representations regarding the status
of the substitute counterparty of the type included in Section (c)
of this Part 5 and notice information (in which case, Party A shall
provide written notice to S&P with respect thereto) and (ii) be
required to post collateral as set forth in (b) below;
(b) in the case of a Ratings Event pursuant to subparagraph (B)
or (C) of the definition of "Hedge Counterparty Ratings Threshold",
if Party A has not obtained a substitute counterparty as set forth
in (3)(a) above within 30 days of the Ratings Event, then Party A
shall continue to seek a substitute counterparty and, on or prior to
the expiration of such period, post collateral according to the
terms of the Credit Support Annex. Notwithstanding anything
contained herein to the contrary, if Party A is required to transfer
its rights and obligations under this Agreement pursuant to this
Part 5(b)(3) as a result of a rating issued by S&P, Party A shall,
at all times prior to such transfer, be required to post collateral
in accordance with (i) the terms of the Credit Support Annex or (ii)
an agreement with Party B providing for the posting of collateral,
which agreement shall be subject to Rating Agency Approval and will
require Party A to post the required collateral.
Rating Agency Approval shall mean prior written confirmation from
S&P, Xxxxx'x and Fitch that such amendment will not cause them to
downgrade or withdraw its then-current ratings of any outstanding
Offered Certificates.
(c) Section 3(a) of this Agreement is hereby amended to include the
following additional representations after paragraph 3(a)(v):
(vi) Eligible Contract Participant. It is an "eligible contract
participant" as defined in section 1a(12) of the U.S. Commodity Exchange
Act.
(vii) Individual Negotiation. This Agreement and each Transaction
hereunder is subject to individual negotiation by the parties.
(viii) Relationship between Party A and Party B. Subject as provided in
Part 5(g), each of Party A and Party B will be deemed to represent to the
other on the date on which it enters into a Transaction or an amendment
thereof that (absent a written agreement between Party A and Party B that
expressly imposes affirmative obligations to the contrary for that
Transaction):
(1) Principal. It is acting as principal and not as agent when
entering into this Agreement and each Transaction.
(2) 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 advisors 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.
(3) Evaluation and Understanding. It is capable of evaluating and
understanding (on its own behalf or through independent professional
advice), and understands and accepts, the terms, conditions and risks
of this Agreement and each Transaction hereunder. It is also capable of
assuming, and assumes, all financial and other risks of this Agreement
and each Transaction hereunder.
(4) Status of Parties. The other party is not acting as a fiduciary
or an advisor for it in respect of that Transaction.
(d) Section 4 is hereby amended by adding the following new agreement:
(f) Actions Affecting Representations. Party B agrees not to take any
action during the term of this Agreement or any Transaction hereunder
that renders or could render any of the representations and warranties
in this Agreement untrue, incorrect, or incomplete, and, if any event
or condition occurs that renders or could render any such
representation untrue, incorrect, or incomplete, Party B will
immediately give written notice thereof to Party A.
(e) Transfer. Section 7 is hereby amended to read in its entirety as
follows:
Except as stated under Section 6(b)(ii), provided that to the extent
Party A makes a transfer pursuant to Section 6(b)(ii) it will provide a
prior written notice to the Rating Agencies of such transfer, neither
Party A nor Party B is permitted to assign, novate or transfer (whether
by way of security or otherwise) as a whole or in part any of its
rights, obligations or interests under this Agreement or any
Transaction without the prior written consent of the other party;
provided, however, that (i) Party A may make such a transfer of this
Agreement pursuant to a consolidation or amalgamation with, or merger
with or into, or transfer of substantially all of its assets to,
another entity, or an incorporation, reincorporation or reconstitution,
and (ii) Party A may transfer this Agreement to any Person that is an
office, branch or affiliate of Party A (any such Person, office, branch
or affiliate, a Transferee) on at least five Business Days' prior
written notice to Party B; provided that, with respect to clause (ii),
(A) as of the date of such transfer the Transferee will not be required
to withhold or deduct on account of a Tax from any payments under this
Agreement unless the Transferee will be required to make payments of
additional amounts pursuant to Section 2(d)(i)(4) of this Agreement in
respect of such Tax; (B) a Termination Event or Event of Default does
not occur under this Agreement as a result of such transfer; (C) such
notice is accompanied by a written instrument pursuant to which the
Transferee acquires and assumes the rights and obligations of Party A
so transferred; and (D) Party A will be responsible for any costs or
expenses incurred in connection with such transfer. Party B will
execute such documentation as is reasonably deemed necessary by Party A
for the effectuation of any such transfer. Notwithstanding the
foregoing, no such transfer shall be made unless the transferring party
obtains a written acknowledgment from each of the Rating Agencies that,
notwithstanding such transfer, the then-current ratings of the Offered
Certificates will not be reduced or withdrawn, provided, however, that
this provision shall not apply to any transfer that is made pursuant to
the provisions of Part 5(b) of this Agreement.
Except as specified otherwise in the documentation evidencing a
transfer, a transfer of all the obligations of Party A made in
compliance with this Section 7 will constitute an acceptance and
assumption of such obligations (and any related interests so
transferred) by the Transferee, a novation of the transferee in place
of Party A with respect to such obligations (and any related interests
so transferred), and a release and discharge by Party B of Party A
from, and an agreement by Party B not to make any claim for payment,
liability, or otherwise against Party A with respect to, such
obligations from and after the effective date of the transfer.
In addition, Party A may transfer this Agreement without the prior
written consent of the Trustee on behalf of Party B but with prior
written notice to S&P, to an Affiliate of Party A that satisfies the
Hedge Counterparty Rating Requirements or that has furnished a
guarantee, subject to S&P Ratings Condition, of the obligations under
this Agreement from a guarantor that satisfies the Hedge Counterparty
Rating Requirements; provided that satisfaction of the S&P Ratings
Condition will be required unless such transfer is in connection with
the assignment and assumption of this Agreement by such an Affiliate
without modification of its terms, other than the following terms:
party name, dates relevant to the effective date of such transfer, tax
representations (provided that the representations in Part 2(a) are not
modified) and any other representations regarding the status of such an
Affiliate the substitute counterparty of the type included in Section
(c) of this Part 5 and notice information (in which case, Party A shall
provide written notice to S&P with respect thereto).
(f) Trustee Capacity. It is expressly understood and agreed by the parties
hereto that (i) this Agreement is executed and delivered by Xxxxx Fargo
Bank (the Trustee) not individually or personally but solely as trustee of
the supplemental interest trust created pursuant to the PSA (the "Trust"),
in the exercise of the powers and authority conferred and vested in it
under the PSA, (ii) each of the representations, undertakings and
agreements herein made on the part of the Trust is made and intended not
as personal representations, undertakings and agreements by the Trustee
but is made and intended for the purpose of binding only the Trust, (iii)
nothing herein contained shall be construed as creating any liability on
the part of the Trustee, 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 and (iv) under no
circumstances shall the Trustee be personally liable for the payment of
any indebtedness or expenses of the Trust or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the Trust under this Agreement or any other related
documents as to all of which recourse shall be had solely to the assets of
the Trust in accordance with the terms of the PSA.
(g) Party B Representations. Party B represents that:
(i) Status. The Trustee is trustee of the Trust whose appointment is
valid and effective both under the laws of the State of New York and
under the PSA, and the Trustee has the power to own assets in its
capacity as trustee of the Trust.
(ii) Powers. In its capacity as trustee of the Trust, the Trustee has
power under the PSA to execute this Agreement and any other
documentation relating to this Agreement that the Trustee is executing
and delivering on behalf of the Trust, to deliver this Agreement and
any other documentation relating to this Agreement that it is required
to execute and deliver and to perform the obligations (on behalf of the
Trust) under this Agreement and any obligations (on behalf of the
Trust) under any Credit Support Document to which Party B is party and
has taken all necessary action to authorize such execution, delivery
and performance;
(iii) No violation or conflict. Such execution, delivery and
performance do not violate or conflict with any law applicable to the
Trustee or Party B, any provision of the PSA, any order or judgment of
any court or other agency of government applicable to the Trustee,
Party B or any assets of Party B, or any contractual restriction
binding on or affecting the Trustee, Party B or any assets of Party B;
(iv) Consents. All governmental and other consents that are required
have been obtained by Party B with respect to this Agreement or any
Credit Support Document to which Party B is party have been obtained
and are in full force and effect and all conditions of such consents
have been complied with; and
(v) Obligations binding. The obligation of Party B under this
Agreement and any Credit Support Document to which Party B is party
constitute legal, valid and binding obligations of Party B, enforceable
against Party B in accordance with their respective terms (subject to
applicable bankruptcy, reorganization, insolvency, moratorium or
similar laws affecting creditors' rights generally and subject, as to
enforceability, to equitable principles of general application
(regardless of whether enforcement is sought in a proceeding in equity
or law)) and no circumstances are known to Party B or the Trustee which
would or might prevent the Trustee from having recourse to the assets
of Party B for the purposes of meeting such obligations.
(h) Proceedings. Party A shall not institute against or cause any other
person to institute against, or join any other person in instituting
against Party B, any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings, or other proceedings under any federal or
state bankruptcy, dissolution or similar law, for a period of one year and
one day, or if longer the applicable preference period then in effect,
following indefeasible payment in full of the Certificates. Nothing shall
preclude, or be deemed to stop, Party A (i) from taking any action prior
to the expiration of the aforementioned one year and one day period, or if
longer the applicable preference period then in effect, in (A) any case or
proceeding voluntarily filed or commenced by Party B or (B) any
involuntary insolvency proceeding filed or commenced by a Person other
than Party A, (ii) from commencing against Party B or any of the Mortgage
Loans any legal action which is not a bankruptcy, reorganization,
arrangement, insolvency, moratorium, liquidation or similar proceeding or
(iii) from taking any action (not otherwise mentioned in this paragraph)
which will prevent an impairment of any right afforded to it under the PSA
as a third party beneficiary.
(i) Change of Account. Section 2(b) of this Agreement is hereby amended by
the addition of the following after the word "delivery" in the first line
thereof:-
"to another account in the same legal and tax jurisdiction as the original
account"
(j) Pooling and Servicing Agreement.
Party B will provide at least ten days' prior written notice to Party A of
any proposed amendment or modification to the PSA and Party B will obtain
the prior written consent of Party A to any such amendment or
modification, where such consent is required under the terms of the PSA.
(k) Set-off. Notwithstanding any provision of this Agreement or any other
existing or future agreements, each of Party A and Party B irrevocably
waives as to itself any and all contractual rights it may have to set off,
net, recoup or otherwise withhold or suspend or condition its payment or
performance of any obligation to the other party under this Agreement
against any obligation of one party hereto to the other party hereto
arising outside of this Agreement. The provisions for set-off set forth
in Section 6(e) of this Agreement shall not apply for purposes of this
Transaction.
(l) Notice of Certain Events or Circumstances. Each party agrees, upon
learning of the occurrence or existence of any event or condition that
constitutes (or that with the giving of notice or passage of time or both
would constitute) an Event of Default or Termination Event with respect to
such party, promptly to give the other party notice of such event or
condition (or, in lieu of giving notice of such event or condition in the
case of an event or condition that with the giving of notice or passage of
time or both would constitute an Event of Default or Termination Event
with respect to the party, to cause such event or condition to cease to
exist before becoming an Event of Default or Termination Event); provided
that failure to provide notice of such event or condition pursuant to this
Part 5(l) shall not constitute an Event of Default or a Termination Event.
(m) Regarding Party A. Party B acknowledges and agrees that Party A has
had and will have no involvement in and, accordingly Party A accepts no
responsibility for: (i) the establishment, structure, or choice of assets
of Party B; (ii) the selection of any person performing services for or
acting on behalf of Party B; (iii) the selection of Party A as the
Counterparty; (iv) the terms of the Certificates; (v) the preparation of
or passing on the disclosure and other information contained in any
offering circular for the Certificates, the PSA, or any other agreements
or documents used by Party B or any other party in connection with the
marketing and sale of the Certificates (other than information provided by
Party A for purposes of the disclosure document relating to the Offered
Certificates); (vi) the ongoing operations and administration of Party B,
including the furnishing of any information to Party B which is not
specifically required under this Agreement; or (vii) any other aspect of
Party B's existence.
(n) Rating Agency Approval on Amendment. In addition to the requirements
of Section 9, this Agreement will not be amended unless Party B shall have
received Rating Agency Approval.
(o) Jurisdiction. Section 13(b) is hereby amended by: (i) deleting in the
second line of subparagraph (i) thereof the word "non-": and (ii) deleting
the final paragraph thereof.
(o) Limited Recourse Non-petition. The liability of Party B in relation to
this Agreement and any Confirmation hereunder is limited in recourse to
assets in the Trust and payments of interest proceeds and principal
proceeds thereon applied in accordance with the terms of the PSA. Upon
application of all of the assets in the Trust (and proceeds thereon) in
accordance with the PSA, Party A shall not be entitled to take any further
steps against Party B to recover any sums due but still unpaid hereunder
or thereunder, all claims in respect of which shall be extinguished.
(p) Party A hereby agrees that, notwithstanding any provision of this
agreement to the contrary, Party B's obligations to pay any amounts owing
under Section 6(e) of this Agreement where Party A is either the
Defaulting Party or the sole Affected Party shall be subject to the
payment priority described in the PSA and Party A's right to receive
payment of such amounts shall be subject to the payment priority described
in the PSA.
(q) Waiver of Jury Trial. Each party waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury in
respect of any suit, action or proceeding relating to this Agreement or
any Credit Support Document. Each party certifies (i) that no
representative, agent or attorney of the other party or any Credit Support
Provider has represented, expressly or otherwise, that such other party
would not, in the event of such a suit, action or proceeding, seek to
enforce the foregoing waiver and (ii) acknowledges that it and the other
party have been induced to enter into this Agreement and provide for any
Credit Support Document, as applicable, by, among other things, the mutual
waivers and certifications in this Section.
(r) Consent to Recording. Each party (i) consents to the recording of the
telephone conversations of trading and marketing personnel of the parties
and their Affiliates in connection with this Agreement or any potential
transaction and (ii) if applicable, agrees to obtain any necessary consent
of, and give notice of such recording to, such personnel of it and its
Affiliates.
(s) 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 illegal, 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 illegal, 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 to this Agreement.
(t) Escrow Payments. If (whether by reason of the time difference between
the cities in which payments are to be made or otherwise) it is not
possible for simultaneous payments to be made on any date on which both
parties are required to make payments hereunder, either party may at its
option and in its sole discretion notify the other party that payments on
that date are to be made in escrow. In this case deposit of the payment
due earlier on that date shall be made by 2:00 pm (local time at the place
for the earlier payment) on that date with an escrow agent selected by the
notifying party, accompanied by irrevocable payment instructions (i) to
release the deposited payment to the intended recipient upon receipt by
the escrow agent of the required deposit of the corresponding payment from
the other party on the same date accompanied by irrevocable payment
instructions to the same effect or (ii) if the required deposit of the
corresponding payment is not made on that same date, to return the payment
deposited to the party that paid it into escrow. The party that elects to
have payments made in escrow shall pay all costs of the escrow
arrangements.
(u) Section 5(a)(iii)(1) of this Agreement is hereby deleted and replaced
with the following:
"(1) The occurrence of an Event of Default under any Credit Support
Document if such Event of Default is continuing after any applicable grace
period has elapsed;"
IN WITNESS WHEREOF, the parties have executed this document by their duly
authorized officers with effect from the date so specified on the first page
hereof.
Xxxxx Fargo Bank, N.A., not in its
individual capacity but solely as
trustee of the supplemental
interest trust created pursuant to
CREDIT SUISSE INTERNATIONAL the Pooling and Servicing Agreement
By:_________________________ By:_________________________
Name: Name:
Title: Title:
By:_________________________
Name:
Title:
