Exhibit 99.2
THIS AUCTION ADMINISTRATION AGREEMENT, dated as of August 31, 2006 (the
"AGREEMENT") is between CREDIT SUISSE INTERNATIONAL ("CSI"), and XXXXX FARGO
BANK, N.A., not in its individual capacity but solely as Securities
Administrator under the Pooling and Servicing Agreement (defined below), acting
as the auction administrator (the "AUCTION ADMINISTRATOR") on behalf of the
Holders of the Auction Certificates (as defined herein).
WITNESSETH
WHEREAS, Structured Asset Mortgage Investments II Inc., as Depositor, Xxxxxxxxx
Mortgage Home Loans, Inc., as Seller, Xxxxx Fargo Bank, N.A., as Master Servicer
and Securities Administrator, LaSalle Bank National Association, as Trustee and
Custodian, and Wilmington Trust Company, as Delaware Trustee, entered into the
Pooling and Servicing Agreement (the "POOLING AND SERVICING AGREEMENT"), dated
as of August 1, 2006, for TMST 2006-5 pursuant to which the Xxxxxxxxx Mortgage
Securities Trust 2006-5 Mortgage Loan Pass-Through Certificates, Series 2006-5
will be issued;
WHEREAS, the Auction Administrator and CSI contemporaneously herewith are
entering into the Auction Swap Agreement (as defined in the Pooling and
Servicing Agreement);
WHEREAS, the Auction Administrator, acting on behalf of the Holders of the
Auction Certificates, has been directed, in its capacity as Securities
Administrator under the Pooling and Servicing Agreement to execute and deliver
the Auction Swap Agreement;
WHEREAS, the parties hereto desire to enter into this Agreement, pursuant to the
Pooling and Servicing Agreement, to provide for the Auction Administrator to (i)
conduct a mandatory auction (the "AUCTION") of the Class A-1, and Class A-2
Certificates (the "AUCTION CERTIFICATES") five Business Days before the
Distribution Date in August 2011 (the Distribution Date in August 2011 being
referred to herein as the "AUCTION DISTRIBUTION DATE"), (ii) on the Auction
Distribution Date, distribute to the Holders of the Auction Certificates the
Auction Proceeds together with the amounts, if any, due to the Auction
Administrator pursuant to the Auction Swap Agreement, subject to a maximum
distribution to the Holders of the Auction Certificates of the Par Price and
(iii) on the Auction Distribution Date, distribute to the Auction Swap
Counterparty (or its designee) any excess of the Auction Proceeds over the Par
Price;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1 DEFINED TERMS
For purposes of this Agreement, unless the context clearly requires otherwise,
all capitalized terms that are used but not otherwise defined herein shall have
the respective meanings assigned to such terms in the Pooling and Servicing
Agreement.
SECTION 2 AUCTION PROCEDURES
(a) By 10:30 AM New York time on the fifth Business Day preceding the
Auction Distribution Date (the "NOTICE DATE"), the Auction
Administrator will deliver a notice (telephonically and by facsimile
transmission) to Credit Suisse Securities (USA) LLC ("CSS") (which
form of notice is attached hereto as Exhibit A) and at least two other
entities listed on Schedule A hereto (which Schedule A may be amended
by delivery of a revised
Schedule A by CSS to the Auction Administrator) or any successors
thereof (together with CSS, the "DEALERS") selected by CSS by the
Notice Date and request that they solicit bids from third-party
investors, which may include Dealers (the "BIDDERS"). The Auction
Administrator will contact the Dealers via Exhibit A and request that
they solicit Qualifying Bids (as defined below) from the Bidders for
the purchase of all or a portion of the Auction Certificates, and will
request that the Bidders respond to the Dealers, who in turn will
convey such bids to the Auction Administrator, by 11:00 AM New York
time on the second Business Day prior to the Auction Distribution Date
(the "BID DATE"). The Auction Administrator will instruct the Dealers
to instruct the Bidders that (i) the bids must be submitted on an
unconditional basis, (ii) the bids should be submitted as a percentage
of par (after application of all principal to be distributed, and all
Realized Losses and Recoveries to be allocated on the Auction
Distribution Date, and (iii) the price to be paid in connection with a
winning bid must be deposited into the Auction Proceeds Account (as
defined in Section 3(a) of this Agreement) not later than 11:00 AM New
York time on the Auction Distribution Date (any bid conforming to the
requirements of clauses (i) - (iii) being a "QUALIFYING BID"). The
Auction Administrator will request from each Bidder, through the
Dealers, instructions for transfer on the Auction Distribution Date to
the Bidder (or its designee) of the Auction Certificates of each Class
on which such Bidder is bidding in the event that such Bidder is the
winning Bidder.
(b) As soon as practicable after 11:00 AM New York time on the Bid Date,
the Auction Administrator will determine the highest Qualifying Bid
for each Auction Certificate being auctioned, based on the Qualifying
Bids received by the Auction Administrator from or through the Dealers
by 11:00 AM New York time. If no Qualifying Bids for a Class of
Auction Certificates or for a portion of a Class of Auction
Certificates are received from or through any Dealers by 11:00 AM New
York time on the Bid Date, the Auction Administrator will so advise
the Dealers (including CSS) by telephone and facsimile transmission
(in the form of notice attached hereto as Exhibit B) and will extend
the deadline for receipt of Qualifying Bids for such Class of Auction
Certificates (or portion thereof) by two hours to 1:00 PM New York
time; if no Qualifying Bids are received by 1:00 PM New York time for
such Class of Auction Certificates (or portion thereof), the auction
price for such Auction Certificates for purposes of the Auction Swap
Agreement will be deemed to be zero. If only one Qualifying Bid for a
Class of Auction Certificates (or portion thereof) being auctioned is
received from or through any Dealers, then the auction price for such
Auction Certificates (or portion thereof) shall be the amount of such
Qualifying Bid. In the event that on the Bid Date two or more
Qualifying Bids of equal price ("TIE BIDS") are determined to be the
highest Qualifying Bids for an aggregate amount greater than the Class
Certificate Principal Balance of a Class of Auction Certificates, then
the Bidders of the Tie Bids will each take a pro rata share in such
Auction Certificates (based on the aggregate Class Certificate
Principal Balance for such Class of Auction Certificates for which
each such Bidder submitted a Qualifying Bid); provided, however, that
such Auction Certificates shall be issued in the minimum denomination,
or multiples in excess thereof, authorized by the Pooling and
Servicing Agreement.
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(c) In the event that CSI defaults in its payment obligations under the
Auction Swap Agreement:
(i) if no Qualifying Bids for a Class of Auction Certificates are
received, then the Holders of such Auction Certificates will
retain such Auction Certificates and their rights under the
Auction Swap Agreement;
(ii) if Qualifying Bids are received for some, but not all, Auction
Certificates of a Class, then each Holder of such Class of
Auction Certificates shall be deemed to have sold a pro rata
portion of its Auction Certificates (based on the aggregate
Class Certificate Principal Balance of such Class of Auction
Certificates held by each Holder and subject to the proviso in
the last sentence of Section 2(b) of this Agreement) and shall
retain the remaining Class Certificate Principal Balance, if
any, of such Class of Auction Certificates held by it and its
rights under the Auction Swap Agreement;
(iii) if bids are received for all Auction Certificates of a Class,
then each Holder of such Class of Auction Certificates shall
be deemed to have sold all its Auction Certificates (subject
to the proviso in the last sentence of Section 2(b) of this
Agreement) and shall retain its rights under the Auction Swap
Agreement;
(iv) if Auction Proceeds for the Auction Certificates of a Class
are in excess of the Par Price for such Auction Certificates,
then, on the Auction Distribution Date, the Auction
Administrator will distribute to the Auction Swap Counterparty
or its designee the amount of such excess; and
(v) if, after the Holders of all Classes of Auction Certificates
have received the Par Price for the relevant Auction
Certificates, there are any remaining proceeds from the early
termination of the Swap Agreement, the Auction Administrator
will distribute to CSI (or to its designee) the amount of such
remaining proceeds.
In any case described in (i)-(v) above, the Auction Administrator shall have no
further responsibility with respect to the auction of such Auction Certificates.
(d) By 3:00 PM New York time on the Bid Date, the Auction Administrator
will notify the winning Bidder(s) with respect to the applicable
auctioned Auction Certificates that (i) its Qualifying Bid was the
highest Qualifying Bid and shall give it wiring instructions for
payment of the purchase price for such Auction Certificates into the
Auction Proceeds Account and (ii) unless such purchase price is
received by 11:00 AM New York time on the Auction Distribution Date,
such Bidder's Qualifying Bid will be rejected and the Qualifying Bid
of the next highest Bidder(s) shall be accepted in accordance with
clause (f) below.
(e) By 3:30 PM New York time on the Bid Date, the Auction Administrator
shall also notify CSI of the winning Qualifying Bid (or, if
applicable, that no Qualifying Bids have been received) for each
Auction Certificate. To the extent that the winning Qualifying Bid for
an Auction Certificate is less than the Class Certificate Principal
Balance of such class of Auction Certificates on the Auction
Distribution Date, after application of all principal to be
distributed, and all Realized Losses and Subsequent Recoveries to be
allocated, to
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such class of Auction Certificates on the Auction Distribution Date,
in accordance with the terms of the Pooling and Servicing Agreement
(the "PAR PRICE") on the Auction Distribution Date, or if no
Qualifying Bids have been received for a Certificate, the Auction
Administrator will notify the Auction Swap Counterparty of the amount
to be paid by the Auction Swap Counterparty to the Auction
Administrator under the Auction Swap Agreement, which amount shall be
paid by the Auction Swap Counterparty to the Auction Administrator by
11:00 AM New York time on the Auction Distribution Date. To the extent
that the winning Qualifying Bid for an Auction Certificate is greater
than the Par Price for such Auction Certificate, the Auction
Administrator will notify the Auction Swap Counterparty of the amount
to be paid on the Auction Distribution Date from Auction Proceeds by
the Auction Administrator to the Auction Swap Counterparty, or its
designee, under the Auction Swap Agreement.
(f) If a winning Bidder for a Certificate fails to wire the purchase price
for such Certificate so it is received by the Auction Administrator by
11:00 AM New York time on the Auction Distribution Date, the Auction
Administrator will notify such Bidder as soon as practicable after
11:00 AM New York time and not later than 12:00 noon New York time
that its Qualifying Bid has been rejected and will notify the next
highest Bidder(s) for such Certificate, with a copy to the Auction
Swap Counterparty, that its Qualifying Bid has been accepted and shall
give it wiring instructions for payment of the purchase price for such
Certificate into the Auction Proceeds Account by 1:00 PM New York time
on such Auction Distribution Date. If no other Qualifying Bids are
available to be accepted pursuant to the preceding sentence, then the
Auction Proceeds for such Certificate for purposes of the Auction Swap
Agreement will be deemed to be zero. If either such event occurs, the
Auction Administrator shall also notify the Auction Swap Counterparty
of the amount to be paid by the Auction Swap Counterparty or to the
Auction Swap Counterparty (or its designee), as applicable, under the
Auction Swap Agreement in accordance with Section 2(e) hereof.
(g) On the Auction Distribution Date, the Auction Administrator will (i)
(subject to the surrender of the Certificate by the Holder thereof to
the Certificate Registrar pursuant to Section 5 hereof in the event
that the Certificate is not then held in book-entry form) distribute
to the Holder of each Certificate an amount (to be withdrawn from the
Auction Proceeds Account and, if necessary, the Swap Proceeds Account)
equal to the sum of (A) the Auction Proceeds, subject to a maximum
payment of the Par Price for such Certificate, and (B) the amount, if
any, received from the Auction Swap Counterparty under the Auction
Swap Agreement with respect to such Certificate, and (ii) pay (from
funds in the Auction Proceeds Account) to the Auction Swap
Counterparty, or if CSS or an affiliate has participated in the
Auction as a Bidder and the Auction Swap Counterparty is CSI, to an
unaffiliated designee of CSI, the amount, if any, to be paid to the
Auction Swap Counterparty or its designee under the Auction Swap
Agreement. Such amounts will be distributed to the Holders of such
Auction Certificates as a payment for the sale of such Auction
Certificates in the same manner as such Holders would ordinarily
receive distributions on the Auction Certificates. For purposes of
this Agreement, "AUCTION PROCEEDS" shall mean the portion of the
proceeds of the Auction of a Class allocable to a Certificate of such
Class.
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(h) No Holder of a Certificate or any party hereto will be responsible for
the payment of any fees of, or costs incurred by, the Dealers in
connection with the Auction.
SECTION 3 ESTABLISHMENT OF ACCOUNTS
(a) The Auction Administrator shall cause to be established and maintained
two separate accounts for purposes of receiving and holding uninvested
(i) any Auction Proceeds and (ii) the amounts, if any, received from
the Auction Swap Counterparty under the Auction Swap Agreement (the
"AUCTION PROCEEDS ACCOUNT" and "SWAP PROCEEDS ACCOUNT," respectively).
(b) To the extent that it constitutes a "reserve fund" for purposes of the
REMIC Provisions, the Swap Proceeds Account established hereunder
shall be an "outside reserve fund" as defined in Treasury Regulation
1.860G-2(h), and in that regard (i) such fund shall be an outside
reserve fund and not an asset of any REMIC, (ii) such fund shall be
owned for federal tax purposes by the Auction Swap Counterparty, and
the Auction Swap Counterparty shall report all amounts of income,
deduction, gain or loss accruing therefrom, and (iii) amounts, if any,
transferred by the REMIC to such fund shall be treated as distributed
by the REMIC to the Auction Swap Counterparty. The Swap Proceeds
Account shall not be an asset of any REMIC.
(c) To the extent that it constitutes a "reserve fund" for purposes of the
REMIC Provisions, the Auction Proceeds Account established hereunder
shall be an "outside reserve fund" as defined in Treasury Regulation
1.860G-2(h), and in that regard (i) such fund shall be an outside
reserve fund and not an asset of any REMIC, (ii) such fund shall be
owned for federal tax purposes (A) with respect to any Auction
Proceeds not in excess of the Par Price, by the Holders of the Auction
Certificates, and (B) with respect to any Auction Proceeds in excess
of the Par Price, by the Auction Swap Counterparty, and each of the
Holders of the Auction Certificates and the Auction Swap Counterparty,
respectively, shall report all amounts of income, deduction, gain or
loss accruing therefrom (if any), and (iii) amounts, if any,
transferred by the REMIC to such fund shall be treated as distributed
by the REMIC to each of the Auction Swap Counterparty and the Holders
of the Auction Certificates, respectively. The Auction Proceeds
Account shall not be an asset of any REMIC.
SECTION 4 NOTICE OF AUCTION
On the Distribution Date in the month prior to the Auction Distribution Date,
the Auction Administrator shall give written notice by letter to the Holder of
each Certificate (which form of notice is attached hereto as Exhibit C) that
will be subject to the Auction, with a copy to CSI, specifying (i) that such
Certificate shall be auctioned in accordance with this Agreement on the Auction
Distribution Date and that the Par Price for such Certificate shall (upon the
Auction Administrator's receipt thereof in accordance with Section 2 of this
Agreement) be payable to such Holder, subject to the surrender of the
Certificate by the Holder thereof to the Certificate Registrar pursuant to
Section 5 hereof in the event that the Certificate is not then held in
book-entry form, (ii) the Auction Distribution Date, (iii) the method of
calculating the Par Price payable to such Holder (in accordance with Section 2
of this Agreement) and (iv) in the event such Certificate is not then held in
book-entry form, that such
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Certificate should be surrendered to the Certificate Registrar for registration
of transfer to the winning Bidder.
SECTION 5 TRANSFER OF AUCTION CERTIFICATES
Not later than 1:30 PM New York time on the Auction Distribution Date, the
Auction Administrator shall (subject to its receipt of the purchase price for
the Auction Certificate from the winning Bidder pursuant to Section 2(d) or 2(f)
hereof, as applicable, or if no Qualifying Bid was received for the Auction
Certificate, the amount required to be paid by the Auction Swap Counterparty
under the Auction Swap Agreement with respect to the Auction Certificate)
instruct the applicable clearing agency in writing, with a copy to the Auction
Swap Counterparty, to transfer the beneficial ownership interest in each Auction
Certificate subject to the Auction to the winning Bidder (or with respect to an
Auction Certificate for which no Qualifying Bid was received, if the Auction
Swap Counterparty is CSI, to the CSS Designee). In the event such Auction
Certificate is not then held in book-entry form, the Holder of such Auction
Certificate shall surrender such Auction Certificate to the Certificate
Registrar for registration of transfer on the Auction Distribution Date to the
winning Bidder (or with respect to an Auction Certificate for which no
Qualifying Bid was received, if the Auction Swap Counterparty is CSI, to the CSS
Designee). If the Holder of an Auction Certificate not then held in book-entry
form fails to deliver such Auction Certificate to the Certificate Registrar,
then (i) the Auction Administrator shall notify the Certificate Registrar of
such failure and request that the Certificate Registrar deem such Auction
Certificate cancelled and issue a new Auction Certificate to the winning Bidder
(or with respect to an Auction Certificate for which no bid was received, if the
Auction Swap Counterparty is CSI, to the CSS Designee), and (ii) the Par Price
due to the Holder of such Auction Certificate will be paid only upon surrender
of such Auction Certificate, without any accrued interest on the Par Price from
the Auction Distribution Date. For purposes of this Section 5, the "CSS
DESIGNEE" is an entity that (i) is exempt from Federal income taxation pursuant
to Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, or the
corresponding provision of any future United States internal revenue law and
(ii) CSS has confirmed meets the requirements of clause (i) and has identified
in a notice delivered to the Auction Administrator on the fifth Business Day
preceding the Auction Distribution Date as the intended transferee of any
Certificate for which no Qualifying Bid is received.
SECTION 6 DUTIES AND RESPONSIBILITIES OF THE AUCTION ADMINISTRATOR
(a) The Auction Administrator undertakes to perform its duties hereunder
and only such duties as are expressly set forth herein, and no implied
covenants or obligations shall be read into this Auction Agreement
against the Auction Administrator.
(b) In the absence of bad faith, negligence or willful misconduct on its
part, or failure to comply with any of its express obligations
hereunder, the Auction Administrator, whether acting directly or
through agents or attorneys as provided in Section 7(d) hereof, shall
not be liable for any action taken, suffered, or omitted or for any
error of judgment made by it in the performance of its duties
hereunder. In no event shall the Auction Administrator be liable for
indirect, punitive, special or consequential damage or loss.
SECTION 7 RIGHTS OF THE AUCTION ADMINISTRATOR AND THE CERTIFICATE REGISTRAR
(a) The Auction Administrator may rely upon conclusively, and shall be
protected in acting or refraining from acting upon, any written
instruction, notice, request, direction, consent,
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report, certificate, form or bond certificate or other instrument,
paper or other document both (i) authorized hereby and (ii) reasonably
believed by it to be genuine and to have been signed by the proper
person. The Auction Administrator shall not be liable for acting, or
refraining from acting in good faith upon any such communication
authorized hereby (including, but not limited to, any communication
made by telephone or other communication acceptable to the parties),
that the Auction Administrator believes in good faith to have been
given by the particular party or parties.
(b) The Auction Administrator may consult with counsel of its choice
(provided such selection is made with reasonable care) and the advice
of such counsel shall be full and complete authorization in respect of
any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(c) The Auction Administrator shall not be required to advance, expend or
risk its own funds or otherwise incur or become exposed to financial
liability in the performance of its duties hereunder.
(d) The Auction Administrator may perform its duties and exercise its
rights hereunder either directly or by or through agents or attorneys
but shall not thereby be released from any of its responsibilities
hereunder subject to clause (b) above.
(e) In no event shall the Auction Administrator be liable for any acts or
omissions of CSI or any Dealers. The Auction Administrator shall have
no responsibility or liability for the failure by any Dealer to
cooperate in the solicitation of bids or for the adequacy or
sufficiency of any bids solicited by such Dealers or information
provided by CSS.
(f) CSI agrees to indemnify the Auction Administrator (and its directors,
officers and employees) and hold it (and such directors, officers and
employees) harmless from and against any loss, liability, damage, cost
and expense of any nature incurred by the Auction Administrator
arising out of or in connection with this Agreement or with the
administration of its duties hereunder, including but not limited to
attorney's fees and other costs and expenses of defending or preparing
to defend against any claim of liability unless and except to the
extent such loss, liability, damage, cost and expense shall be caused
by the Auction Administrator's negligence, bad faith, willful
misconduct or failure to comply with any of its express obligations
hereunder. The foregoing indemnification and agreement to hold
harmless shall survive the termination of this Agreement.
(g) The Auction Administrator shall have no responsibility for providing
any information related to the Auction Certificates to any Dealers or
Bidders.
(h) CSI agrees to indemnify the Certificate Registrar (and its directors,
officers and employees) and hold it (and such directors, officers and
employees) harmless from and against any loss, liability, damage, cost
and expense of any nature incurred by the Certificate Registrar
arising out of or in connection with (i) any claim by a Holder of a
Certificate not then held in book-entry form that such Certificate was
improperly deemed canceled by the Certificate Registrar at the request
of the Auction Administrator pursuant to Section 5 of this Agreement
or (ii) any claim by a Person alleging to be a winning
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Bidder or a CSS Designee which Person did not receive a new
Certificate because of contrary written instructions delivered to the
Certificate Registrar by CSI or any of its Affiliates, including but
not limited to attorney's fees and other costs and expenses of
defending or preparing to defend against any claim of liability unless
and except to the extent such loss, liability, damage, cost and
expense shall be caused by the Certificate Registrar's negligence, bad
faith, willful misconduct or failure to comply with any of its express
obligations hereunder. The foregoing indemnification and agreement to
hold harmless shall survive the termination of this Agreement or the
earlier removal or resignation of the Certificate Registrar.
SECTION 8 MISCELLANEOUS
(a) This Auction Agreement shall remain in effect until the Auction
Certificates are purchased on the Auction Distribution Date and all
proceeds thereof have been disbursed.
(b) The rights and duties of the Auction Administrator under this
Agreement shall cease upon termination of this Agreement, provided
that rights under Section 7 shall survive termination.
(c) Except for communications authorized to be by telephone pursuant to
this Agreement (which telephonic communications are to be made to the
telephone number(s) listed below), all notices, requests and other
communications to any party hereunder shall be in writing (for
purposes of this Agreement, telecopy shall be deemed to be in writing)
and shall be given to such party, addressed to it, at its address or
telecopy number for purposes of this Agreement, set forth below:
If to the Auction Administrator: Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attention: Client Manager -
Xxxxxxxxx 2006-5
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to CSI, to: Credit Suisse International
One Xxxxx Xxxxxx
Xxxxxx X00 0XX
Xxxxxxx
Attention: Head of Credit Risk
Management;
Managing Director -
Operations
Department; and
Managing Director -
Legal Department
Telex No.: 264521
Answerback: CSI G
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For the purpose of facsimile
notices or communications under
this Agreement (other than a
notice or communication under
Sections 5 or 6):
Attention: Managing Director -
Legal Department
Facsimile No.: 44 20 7888 2686
And
Attention: OTC Operations,
Derivatives Support Group
Facsimilie No: 0 000 000-0000
If to CSS: Credit Suisse Securities (USA) LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 3629
Attention: Xxxxx Xxxx
or such other address, telecopier number as such party may hereafter
specify for such purpose by notice to the other parties. Each such
notice, request or communication shall be effective (a) if given by
telecopy, when such telecopy is transmitted to the telecopier number
specified herein, receipt confirmed, or (b) if given by any other
means, when delivered at the address specified herein.
(d) This Agreement contains the entire agreement between the parties
hereto relating to the subject matter hereof, and there are no other
representations, endorsements, promises, agreements or understandings,
oral, written or inferred, between the parties hereto relating to the
subject matter hereof.
(e) This Agreement shall be binding upon the parties hereto and their
respective successors and assigns, provided however, that any such
transferee of CSI (or the guarantor of such transferee's obligations
hereunder) shall meet the Approved Ratings Threshold (as defined in
the Auction Swap Agreement). This Agreement shall inure to the benefit
of and be enforceable by the parties hereto and their respective
successors and assigns. Nothing herein, express or implied, shall give
to any person, other than the parties hereto and their respective
successors or assigns, any benefit of any legal or equitable right,
remedy or claim hereunder, except as otherwise expressly stated.
(f) This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by
written instrument signed by a duly authorized representative of the
parties hereto. The failure of any party hereto to exercise any right
or remedy hereunder in the event of a breach hereof by the other party
shall not constitute a waiver of any such right or remedy with respect
to any subsequent breach.
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(g) If any clause, provision or section hereof shall be ruled invalid or
unenforceable by any court of competent jurisdiction, the invalidity
or unenforceability of such clause, provision or section shall not
affect any of the remaining clauses, provisions or sections hereof.
(h) This Agreement may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the
same instrument. This Agreement shall take effect immediately upon the
execution and delivery hereof.
(i) This Agreement shall 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
(other than Section 5-1401 of the New York General Obligations Law).
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
date first above written.
XXXXX FARGO BANK, N.A.,
not in its individual capacity but solely as Securities Administrator
under the Pooling and Servicing Agreement, acting as the Auction Administrator
on behalf of the Holders of the Auction Certificates
By: /s/ Xxx Xxxxx
-----------------------------
Authorized Signatory
CREDIT SUISSE INTERNATIONAL
By: /s/ Bik Xxxx Xxxxx
-----------------------------
Name: Bik Xxxx Xxxxx
Title Authorized Signatory
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxxx
Title Authorized Signatory
AAA
SCHEDULE A
Bear, Xxxxxxx & Co. Inc.
Telephone (000) 000-0000
Fax (000) 000-0000
Credit Suisse
Telephone (000) 000-0000
Fax (000) 000-0000
Xxxxxxx, Sachs & Co.
Telephone (000) 000-0000
Fax (000) 000-0000
Xxxxxx Brothers Inc.
Telephone (000) 000-0000
Fax (000) 000-0000
AAA
EXHIBIT A
[date]
BY FACSIMILE TRANSMISSION
[At least two other Dealers from Schedule A]
With a copy to:
Credit Suisse Securities (USA) LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
RE: XXXXXXXXX MORTGAGE SECURITIES TRUST 2006-5 MORTGAGE LOAN PASS-THROUGH
CERTIFICATES, SERIES 2006-5
This is to advise you that the Class A-1 and Class A-2 Certificates of the
above-referenced series of Certificates are to be auctioned pursuant to the
terms of the Auction Administration Agreement, dated as of August 31, 2006, a
copy of which is attached hereto.
You are hereby requested to solicit bids in accordance with the terms of the
Auction Administration Agreement.
A-1
[ADD THE FOLLOWING ONLY IN THE NOTICES SENT TO CSS:
You are also hereby requested to submit to the Auction Administrator the
identity of the CSS Designee (as defined in the Auction Administration
Agreement) to whom any Certificate for which no bid is received should be
transferred on the Auction Distribution Date.]
XXXXX FARGO BANK, N.A., not in its individual capacity
but solely as Securities Administrator under the Pooling and Servicing
Agreement, acting as the Auction Administrator on behalf of the Holders of the
Auction Certificates
By:
-----------------------------
Name:
Title
A-2
EXHIBIT B
[date]
BY FACSIMILE TRANSMISSION
[To the Dealers previously notified of the Auction]
With a copy to:
Credit Suisse Securities (USA) LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
RE: XXXXXXXXX MORTGAGE SECURITIES TRUST 2006-5 MORTGAGE LOAN PASS-THROUGH
CERTIFICATES, SERIES 2006-5
This is to advise you that as of 11:00 AM today, the Auction Administrator has
not received bids for the following Class(es) (or portion thereof) of the
above-referenced series of Certificates:
[Class(es) identified]
B-1
This is to further advise you that the deadline for the receipt of bids for the
above-referenced Certificates has been extended to 1:00 PM today. You are hereby
requested to solicit bids for such Certificates in accordance with the terms of
the Auction Administration Agreement.
XXXXX FARGO BANK, N.A., not in its individual capacity
but solely as Securities Administrator under the Pooling and Servicing
Agreement, acting as the Auction Administrator on behalf of the Holders of the
Auction Certificates
By:
-----------------------------
Name:
Title
B-2
EXHIBIT C
[date]
BY FACSIMILE TRANSMISSION
[Holders of the Certificates]
With a copy to:
Credit Suisse Securities (USA) LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
RE: XXXXXXXXX MORTGAGE SECURITIES TRUST 2006-5 MORTGAGE LOAN PASS-THROUGH
CERTIFICATES, SERIES 2006-5
Pursuant to Section 4 of the Auction Administration Agreement dated August 31,
2006 (the "AUCTION ADMINISTRATION AGREEMENT") between Xxxxx Fargo Bank, N.A., as
Auction Administrator (in such capacity, the "AUCTION ADMINISTRATOR") and Credit
Suisse International, this is to advise you that the following Classes of the
above-referenced series of Certificates are to be auctioned pursuant to the
terms of the Auction Administration Agreement:
[Class(es) identified]
Such Certificates shall be auctioned on the Distribution Date in August 2011
(the "AUCTION DISTRIBUTION DATE") in accordance with the provisions of the
Auction Administration Agreement and the Par Price (as defined in the Auction
Administration Agreement) for the Certificates owned by you shall (to the extent
of the Auction Administrator's receipt thereof in accordance with Section 2 of
the Auction Administration Agreement) be payable to you in connection with the
sale of such Certificates.
In the event any such Certificate is not held in book-entry form, such
Certificate must be surrendered to the Certificate Registrar prior to payment of
the Par Price to its Holder.
C-1
XXXXX FARGO BANK, N.A., not in its individual capacity
but solely as Securities Administrator under the Pooling and Servicing
Agreement, acting as the Auction Administrator on behalf of the Holders of the
Auction Certificates
By:
-----------------------------
Name:
Title
C-2
