Dated: December 28, 2006
RATE CAP TRANSACTION
RE: BNY REFERENCE NO. 38676
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 U.S. Bank National Association, not in
its individual capacity, but solely as trustee (the "TRUSTEE") for the RFMSI Series 2006-S12
(in such capacity, the "COUNTERPARTY"), under the Series Supplement, dated as of December 1,
2006 (the "Series Supplement"), to the Standard Terms of the Pooling and Servicing Agreement,
dated as of November 1, 2006 ( the "STANDARD TERMS"), and together with the Series Supplement,
the "Pooling and Servicing Agreement", among Residential Funding Mortgage Securities I, Inc.,
as Depositor, Residential Funding Company, LLC, as Master Servicer, and U.S. Bank National
Association, as Trustee. 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"). Any reference to a "Swap Transaction" in the Definitions is deemed to be a reference
to a "Transaction" for purposes of this Agreement, and any reference to a "Transaction" in
this Agreement is deemed to be a reference to a "Swap Transaction" for purposes of the
Definitions. 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
Paragraph 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. For the avoidance of
doubt, the Transaction described herein shall be the sole Transaction governed by such ISDA
Form Master Agreement. Except as otherwise specified, references herein to Sections shall be
to Sections of the Master Agreement, and references to Paragraphs shall be to paragraphs of
this Agreement. In the event of any inconsistency between the provisions of this Agreement
and the Definitions or the 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 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 amount set
forth for such period on Schedule I attached hereto.
Trade Date: December 14, 2006
Effective Date: December 25, 2006
Termination Date: August 25, 2013
FIXED AMOUNTS
Fixed Amount Payer: Counterparty represents and warrants that it has
directed Greenwich Capital Markets, Inc. to make payment
of the Fixed Amount on its behalf
Fixed Amount: USD 709,000.00
Fixed Amount
Payment Date: December 28, 2006
FLOATING AMOUNTS
Floating Rate Payer: BNY
Cap Rate: 5.25%
Floating Rate for initial
Calculation Period: To be determined
Floating Rate Day Count
Fraction: 30/360
Floating Rate Option: USD-LIBOR-BBA, provided, however, if the Floating Rate
Option for a Calculation Period is greater than 9.00%
then the Floating Rate Option for such Calculation
Period shall be deemed equal to 9.00%.
Designated Maturity: One month
Spread: Inapplicable
Floating Rate Payer
Period End Dates: The 25th day of each month, beginning on January 25,
2007 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 one (1) Business Day
preceding each Floating Rate Payer Period End Date.
Reset Dates: The first day of each Calculation Period
Compounding: Inapplicable
Business Days for Payments
By both parties: New York
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.
4. PROVISIONS DEEMED INCORPORATED IN A SCHEDULE TO THE MASTER AGREEMENT:
1) NO PAYMENT NETTING AMONG TRANSACTIONS. The parties agree that subparagraph
(ii) of Section 2(c) of the ISDA Form Master Agreement will apply to this Transaction.
2) TERMINATION PROVISIONS. For purposes of the Master Agreement:
(a) "SPECIFIED ENTITY" in relation to BNY or the Counterparty shall mean: none.
(b) "SPECIFIED TRANSACTION" shall be inapplicable to BNY and Counterparty.
(c) APPLICABILITY. The following provisions apply or do not apply to the parties
as specified below:
(i) Section 5(a)(i) (FAILURE TO PAY OR DELIVER):
(A) will apply to BNY; and
(B) will apply to the Counterparty.
(ii) Section 5(a)(ii) (BREACH OF AGREEMENT):
(A) will apply to BNY; and
(B) will not apply to the Counterparty.
(iii) Section 5(a)(iii) (CREDIT SUPPORT DEFAULT):
(A) will not apply to BNY; and
(B) will not apply to the Counterparty.
(iv) Section 5(a)(iv) (MISREPRESENTATION):
(A) will apply to BNY; and
(B) will not apply to the Counterparty.
(v) Section 5(a)(v) (DEFAULT UNDER SPECIFIED TRANSACTION):
(A) will not apply to BNY; and
(B) will not apply to the Counterparty.
(vi) Section 5(a)(vi) (CROSS DEFAULT):
(A) will apply to BNY; and
(B) will not apply to the Counterparty.
For the purposes of Section 5(a)(vi):
"SPECIFIED INDEBTEDNESS" will have the meaning specified in Section 14
of this Agreement, except that it shall not include indebtedness in
respect of deposits received.
"THRESHOLD AMOUNT" means, 3% of consolidated shareholders equity of BNY
and its subsidiaries determined in accordance with generally accepted
accounting principles of the United States consistently applied as of
the last day of the fiscal quarter ended immediately prior to the
occurrence or existence of an event for which a Threshold Amount is
applicable under Section 5(a)(vi) of this Agreement.
(vii) Section 5(a)(vii) (BANKRUPTCY):
(A) will apply to BNY; and
(B) (1) subclauses (2), (4) (but only if the proceeding or petition
is instituted or presented by the Trustee or its affiliates), (7) and
(8) (but only with respect to clauses (2), (4) and (7) to the extent of
disapplication herein) of Section 5(a)(vii) will not apply to the
Counterparty, and the remaining provisions of Section 5(a)(vii) will
apply to the Counterparty; and (2) the words "trustee" and "custodian"
in subclause (6) will not include the Trustee.
(viii) Section 5(a)(viii) (MERGER WITHOUT ASSUMPTION):
(A) will apply to BNY; and
(B) will apply to the Counterparty.
(ix) Section 5(b)(i) (ILLEGALITY):
(A) will apply to BNY; and
(B) will apply to the Counterparty.
(x) Section 5(b)(ii) (TAX EVENT):
(A) will apply to BNY; provided that the words "(x) any action
taken by a taxing authority, or brought in a court of competent
jurisdiction, on or after the date on which a Transaction is entered
into (regardless of whether such action is taken or brought with
respect to a party to this Agreement) or (y)" shall be deleted; and
(B) will not apply to the Counterparty.
(xi) Section 5(b)(iii) (TAX EVENT UPON MERGER):
(A) will apply to BNY, provided, that BNY shall not be entitled to
designate an Early Termination Date by reason of a Tax Event upon
Merger in respect of which it is the Affected Party; and
(B) will apply to the Counterparty.
(xii) Section 5(b)(iv) (CREDIT EVENT UPON MERGER):
(A) will not apply to BNY; and
(B) will not apply to the Counterparty.
(xiii) Section 5(b)(v) (ADDITIONAL TERMINATION EVENT):
(A) will apply to BNY with respect to Paragraph 4(2)(g)(ii) and
(iii); and
(B) will apply to the Counterparty with respect to Paragraph
4(2)(g)(i).
(d) The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a):
(A) will not apply to BNY; and
(B) will not apply to the Counterparty.
(e) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e), the
Second Method and Market Quotation will apply.
(f) "TERMINATION CURRENCY" means United States Dollars.
(g) "ADDITIONAL TERMINATION EVENT" will apply. The following shall constitute
Additional Termination Events, and the party specified shall be the Affected Party
with respect thereto:--
(i) REGULATION AB. BNY shall fail to comply with the provisions of
Paragraph 4(9) within the time provided for therein. BNY shall be the sole
Affected Party.
(h) "GROSS UP". Section 2(d)(i)(4) shall not apply to Counterparty as X, and
Section 2(d)(ii) shall not apply to Counterparty as Y, such that Counterparty shall
not be required to pay any additional amounts referred to therein.
3) TAX REPRESENTATIONS.
(a) PAYER REPRESENTATIONS. For the purpose of Section 3(e), BNY and the
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)) 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);
(ii) the satisfaction of the agreement contained in Section 4 (a)(i) or
4(a)(iii) and the accuracy and effectiveness of any document provided by the
other party pursuant to Section 4 (a)(i) or 4(a)(iii); and
(iii) the satisfaction of the agreement of the other party contained in
Section 4(d), 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), BNY and the
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 the payments made to it under this Agreement is
either (i) a "U.S. person" (as that term is used in section
1.1441-4(a)(3)(ii) of United States Treasury Regulations (the
"REGULATIONS")) for United States federal income tax purposes and an
"exempt recipient" within the meaning of section 1.6049-4(c)(1)(ii) of
the Regulations, or (ii) a "non-U.S. branch of a foreign person" as
that term is used in section 1.1441-4(a)(3)(ii) of the the Regulations
for United States federal income tax purposes, and a "foreign person"
as that term is used in section 1.6041-4(a)(4) of the 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 DELIVER COVERED BY
DOCUMENT DATE BY WHICH TO BE SECTION 3(D)
FORM/DOCUMENT/ CERTIFICATE DELIVERED REPRESENTATION
------------------ ----------------------------------- ------------------------ -----------------
------------------ ----------------------------------- ------------------------ -----------------
BNY and Any document required or (i) Prior to the Yes
Counterparty reasonably requested to allow the first payment
other party to make payments hereunder and (ii)
under this Agreement without any promptly after the
deduction or withholding for or earlier of reasonable
on the account of any tax. demand by either party
or learning that such
form or document is
required
------------------ ----------------------------------- ------------------------ -----------------
(b) Other documents to be delivered are:
------------------ ----------------------------------- ------------------------ -----------------
PARTY REQUIRED
TO DELIVER COVERED BY
DOCUMENT DATE BY WHICH TO BE SECTION 3(D)
FORM/DOCUMENT/ CERTIFICATE DELIVERED REPRESENTATION
------------------ ----------------------------------- ------------------------ -----------------
------------------ ----------------------------------- ------------------------ -----------------
BNY A certificate of an authorized Upon the execution and Yes
officer of the party, as to the delivery of this
incumbency and authority of the Agreement
respective officers of the party
signing this Agreement, any
relevant Credit Support Document,
or any Confirmation, as the case
may be.
------------------ ----------------------------------- ------------------------ -----------------
------------------ ----------------------------------- ------------------------ -----------------
Counterparty (i) a copy of the executed Upon the later of, Yes
Pooling and Servicing Agreement, receipt by such party,
and (ii) an incumbency or within 30 days
certificate verifying the true after the date of this
signatures and authority of the Agreement
person or persons signing this
letter agreement on behalf of the
Counterparty.
------------------ ----------------------------------- ------------------------ -----------------
------------------ ----------------------------------- ------------------------ -----------------
BNY A copy of the annual balance Promptly after request No.
sheet from the most recent by the Counterparty
publicly available regulatory (if available on
call report. xxxx://xxx.xxxx.xxx,
such delivery is not
required)
------------------ ----------------------------------- ------------------------ -----------------
------------------ ----------------------------------- ------------------------ -----------------
BNY Legal Opinion as to Upon the execution and Yes
enforceability of this Agreement. delivery of this
Agreement.
------------------ ----------------------------------- ------------------------ -----------------
------------------ ----------------------------------- ------------------------ -----------------
BNY Indemnification agreement Concurrently with No.
executed by Party A, Residential printing of any
Funding Company, LLC and prospectus supplement
Residential Funding Mortgage or the Certificates to
Securities I, Inc. with respect which this Agreement
to information provided by BNY relates.
for inclusion in any prospectus
supplement for the Certificates
to which this Agreement relates.
------------------ ----------------------------------- ------------------------ -----------------
------------------ ----------------------------------- ------------------------ -----------------
Counterparty Certified copy of the Board of Upon the execution and Yes
Directors resolution (or delivery of this
equivalent authorizing Agreement.
documentation) which sets forth
the 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):
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)
A copy of any notice or other communication with respect to Sections 5 or 6
should also be sent to the addresses set out below:
The Bank of New York
Legal Department
Xxx Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10286
Attention: General Counsel
ADDRESS FOR NOTICES OR COMMUNICATIONS TO THE COUNTERPARTY:
RFMSI Series 2006-S12 Trust
c/o U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
XX-XX-XX0X
Xx. Xxxx, XX 00000
Facsimile No.: 000-000-0000
Telephone No: 000-000-0000
with a copy to:
Residential Funding Corporation
0000 Xxxxxxxxxx Xxxx Xxxx.
Minneapolis, MN 55437
Attention: Xxxxxxx Xxxxxxxx
Facsimile No.: 000-000-0000
Telephone No: 000-000-0000 (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), 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):
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" means in relation to:--
BNY: Not applicable
The Counterparty: Not applicable.
(g) "CREDIT SUPPORT PROVIDER" means in relation to:--
BNY: Not Applicable
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) 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 federal or state bankruptcy or
similar law or bankruptcy or similar laws of 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. This provision shall survive the
expiration of this Agreement.
(m) REMEDY OF FAILURE TO PAY OR DELIVER. The ISDA Form Master Agreement is hereby
amended by replacing the word "third" in the third line of Section 5(a)(i) by the
word "second".
(n) "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).
(o) TRUSTEE'S CAPACITY. It is expressly understood and agreed by the parties
hereto that insofar as this Confirmation is executed by the Trustee (i) this
Confirmation is executed and delivered by U.S. Bank National Association, not in its
individual capacity or personally but solely as Trustee pursuant to the Pooling and
Servicing Agreement in the exercise of the powers and authority conferred and vested
in it thereunder and pursuant to instruction set forth therein, (ii) each of the
representations, undertakings and agreements herein made on behalf of the trust is
made and intended not as a personal representation, undertaking or agreement of the
Trustee but is made and intended for the purpose of binding only the trust, and (iii)
under no circumstances will U.S. Bank National Association, in its individual
capacity be personally liable for the payment of any indebtedness or expenses or be
personally liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken under this Confirmation. Nothing herein
contained shall be construed as creating any liability on U.S. Bank National
Association, individually or personally, to perform any covenant either expressed or
implied contained herein, all such liability, if any, being expressly waived by the
parties who are signatories to this letter agreement and by any person claiming by,
through or under such parties.
(p) TRUSTEE'S REPRESENTATION. U.S. Bank National Association, as Trustee,
represents and warrants that:
It has been directed under the Pooling and Servicing Agreement to enter into
this letter agreement as Trustee on behalf of the Counterparty.
6) ADDITIONAL REPRESENTATIONS. Section 3 is hereby amended by adding, 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) Each Party 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; 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) Each Party 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 COMMODITY 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) SWAP AGREEMENT. Each Transaction is a "swap agreement" as defined in
12 U.S.C. Section 1821(e)(8)(D)(vi) and a "covered swap agreement" as defined
in the Commodity Exchange Act (7 U.S.C. Section 27(d)(1))."
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, except as provided in the next sentence), 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) shall not apply for purposes of this Transaction.
8) [RESERVED]
9) COMPLIANCE WITH REGULATION AB.
(i) BNY agrees and acknowledges that Residential Funding Company, LLC (the
"SPONSOR"), Residential Funding Mortgage Securities I, Inc. (the "DEPOSITOR"),
or their affiliates are required under Regulation AB under the Securities Act
of 1933 and the Securities Exchange Act of 1934, as amended ("REGULATION AB"),
to disclose certain financial information regarding BNY depending on the
applicable "significance percentage," calculated from time to time in
accordance with Item 1115 of Regulation AB.
(ii) It shall be a disclosure event ("DISCLOSURE EVENT") if, on any Business
Day after the date hereof, Sponsor or Depositor requests from BNY the
financial information described in Item 1115(b) of Regulation AB (the "REG AB
FINANCIAL DISCLOSURE"). Within five (5) 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 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.
(iii) BNY, the Sponsor and the Depositor acknowledge and agree that the
purpose of this paragraph 4(9) is to facilitate compliance by the Sponsor and
the Depositor with the provisions of Regulation AB and related rules and
regulations of the Securities and Exchange Commission (the "COMMISSION"). The
Sponsor and Depositor shall not exercise their right to request delivery of
information under these provisions other than in good faith, or for purposes
other than compliance with Regulation AB and the related rules and regulations
of the Commission.
(iv) BNY shall indemnify the Sponsor and the Depositor, each affiliate of
the Sponsor and the Depositor, each Person who controls any of such parties
(within the meaning of Section 15 of the Securities Act of 1933 and Section 20
of the Securities Exchange Act of 1934), and the respective present and former
directors, officers, employees and agents of each of the foregoing, and shall
hold each of them harmless from and against any losses, damages, legal fees
and expenses and related costs, judgments, and any other costs, fees and
expenses that any of them may sustain arising out of or based upon any untrue
statement of a material fact contained or alleged to be contained in any Reg
AB Financial Disclosure provided by or on behalf of BNY, or the omission or
alleged omission to state in the Reg AB Financial Disclosure a material fact
required to be stated in the Reg AB Financial Disclosure or necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(v) In the case of any failure of performance described in clause (ii) of
this paragraph 4(9), BNY shall promptly reimburse the Sponsor, the Depositor
or their affiliates for all costs reasonably incurred by either party on
account of BNY's failure to provide the Reg AB Financial Disclosure as
required by clause (ii) of this paragraph 4(9).
10) 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, 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.
11) BNY PAYMENTS TO BE MADE TO TRUSTEE. 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.
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:
U.S. Bank National Association
ABA Number: 000000000
Account Number: 1731 0332 2058
Reference: RFMSI Series 2006-S12
Ref Acct No.: 108293000
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/Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: 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.
U.S. BANK NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS TRUSTEE FOR
THE RFMSI SERIES 2006-S12 TRUST MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-S12
By: /s/Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
SCHEDULE I
----------------------------------------------------------------------------
Accrual Start Date Accrual End Date Notional Amount (in USD)
----------------------------------------------------------------------------
25-Dec-06 25-Jan-07 87,713,000.00
----------------------------------------------------------------------------
25-Jan-07 25-Feb-07 87,708,216.02
----------------------------------------------------------------------------
25-Feb-07 25-Mar-07 87,701,947.79
----------------------------------------------------------------------------
25-Mar-07 25-Apr-07 87,694,195.97
----------------------------------------------------------------------------
25-Apr-07 25-May-07 87,684,964.23
----------------------------------------------------------------------------
25-May-07 25-Jun-07 87,674,259.27
----------------------------------------------------------------------------
25-Jun-07 25-Jul-07 87,662,090.78
----------------------------------------------------------------------------
25-Jul-07 25-Aug-07 87,565,998.34
----------------------------------------------------------------------------
25-Aug-07 25-Sep-07 87,326,409.89
----------------------------------------------------------------------------
25-Sep-07 25-Oct-07 86,945,208.34
----------------------------------------------------------------------------
25-Oct-07 25-Nov-07 86,424,577.31
----------------------------------------------------------------------------
25-Nov-07 25-Dec-07 85,766,997.98
----------------------------------------------------------------------------
25-Dec-07 25-Jan-08 84,975,244.69
----------------------------------------------------------------------------
25-Jan-08 25-Feb-08 84,052,379.69
----------------------------------------------------------------------------
25-Feb-08 25-Mar-08 83,001,746.67
----------------------------------------------------------------------------
25-Mar-08 25-Apr-08 81,826,963.41
----------------------------------------------------------------------------
25-Apr-08 25-May-08 80,531,913.26
----------------------------------------------------------------------------
25-May-08 25-Jun-08 79,120,735.76
----------------------------------------------------------------------------
25-Jun-08 25-Jul-08 77,597,816.19
----------------------------------------------------------------------------
25-Jul-08 25-Aug-08 75,967,774.20
----------------------------------------------------------------------------
25-Aug-08 25-Sep-08 74,235,451.60
----------------------------------------------------------------------------
25-Sep-08 25-Oct-08 72,405,899.13
----------------------------------------------------------------------------
25-Oct-08 25-Nov-08 70,484,362.59
----------------------------------------------------------------------------
25-Nov-08 25-Dec-08 68,476,268.06
----------------------------------------------------------------------------
25-Dec-08 25-Jan-09 66,387,206.45
----------------------------------------------------------------------------
25-Jan-09 25-Feb-09 64,222,917.42
----------------------------------------------------------------------------
25-Feb-09 25-Mar-09 61,989,272.68
----------------------------------------------------------------------------
25-Mar-09 25-Apr-09 59,692,258.70
----------------------------------------------------------------------------
25-Apr-09 25-May-09 57,337,959.09
----------------------------------------------------------------------------
25-May-09 25-Jun-09 54,972,949.98
----------------------------------------------------------------------------
25-Jun-09 25-Jul-09 52,692,307.82
----------------------------------------------------------------------------
25-Jul-09 25-Aug-09 50,494,089.40
----------------------------------------------------------------------------
25-Aug-09 25-Sep-09 48,376,396.08
----------------------------------------------------------------------------
25-Sep-09 25-Oct-09 46,337,372.77
----------------------------------------------------------------------------
25-Oct-09 25-Nov-09 44,375,206.97
----------------------------------------------------------------------------
25-Nov-09 25-Dec-09 42,488,127.76
----------------------------------------------------------------------------
25-Dec-09 25-Jan-10 40,674,404.86
----------------------------------------------------------------------------
25-Jan-10 25-Feb-10 38,932,347.71
----------------------------------------------------------------------------
25-Feb-10 25-Mar-10 37,260,304.55
----------------------------------------------------------------------------
25-Mar-10 25-Apr-10 35,656,661.52
----------------------------------------------------------------------------
25-Apr-10 25-May-10 34,119,841.85
----------------------------------------------------------------------------
25-May-10 25-Jun-10 32,648,304.93
----------------------------------------------------------------------------
25-Jun-10 25-Jul-10 31,240,545.54
----------------------------------------------------------------------------
25-Jul-10 25-Aug-10 29,895,093.04
----------------------------------------------------------------------------
25-Aug-10 25-Sep-10 28,610,510.54
----------------------------------------------------------------------------
25-Sep-10 25-Oct-10 27,385,394.17
----------------------------------------------------------------------------
25-Oct-10 25-Nov-10 26,218,372.30
----------------------------------------------------------------------------
25-Nov-10 25-Dec-10 25,108,104.79
----------------------------------------------------------------------------
25-Dec-10 25-Jan-11 24,053,282.33
----------------------------------------------------------------------------
25-Jan-11 25-Feb-11 23,052,625.66
----------------------------------------------------------------------------
25-Feb-11 25-Mar-11 22,104,884.92
----------------------------------------------------------------------------
25-Mar-11 25-Apr-11 21,208,838.98
----------------------------------------------------------------------------
25-Apr-11 25-May-11 20,363,294.77
----------------------------------------------------------------------------
25-May-11 25-Jun-11 19,567,086.64
----------------------------------------------------------------------------
25-Jun-11 25-Jul-11 18,819,075.75
----------------------------------------------------------------------------
25-Jul-11 25-Aug-11 18,118,149.43
----------------------------------------------------------------------------
25-Aug-11 25-Sep-11 17,463,220.58
----------------------------------------------------------------------------
25-Sep-11 25-Oct-11 16,853,227.11
----------------------------------------------------------------------------
25-Oct-11 25-Nov-11 16,287,131.36
----------------------------------------------------------------------------
25-Nov-11 25-Dec-11 15,763,919.52
----------------------------------------------------------------------------
25-Dec-11 25-Jan-12 15,282,601.11
----------------------------------------------------------------------------
25-Jan-12 25-Feb-12 15,234,106.17
----------------------------------------------------------------------------
25-Feb-12 25-Mar-12 15,221,334.45
----------------------------------------------------------------------------
25-Mar-12 25-Apr-12 14,907,239.80
----------------------------------------------------------------------------
25-Apr-12 25-May-12 13,701,684.42
----------------------------------------------------------------------------
25-May-12 25-Jun-12 12,530,632.32
----------------------------------------------------------------------------
25-Jun-12 25-Jul-12 11,393,240.54
----------------------------------------------------------------------------
25-Jul-12 25-Aug-12 10,288,685.81
----------------------------------------------------------------------------
25-Aug-12 25-Sep-12 9,216,164.14
----------------------------------------------------------------------------
25-Sep-12 25-Oct-12 8,174,890.31
----------------------------------------------------------------------------
25-Oct-12 25-Nov-12 7,164,097.48
----------------------------------------------------------------------------
25-Nov-12 25-Dec-12 6,183,036.77
----------------------------------------------------------------------------
25-Dec-12 25-Jan-13 5,230,976.81
----------------------------------------------------------------------------
25-Jan-13 25-Feb-13 4,413,389.64
----------------------------------------------------------------------------
25-Feb-13 25-Mar-13 3,621,491.45
----------------------------------------------------------------------------
25-Mar-13 25-Apr-13 2,854,624.67
----------------------------------------------------------------------------
25-Apr-13 25-May-13 2,112,147.44
----------------------------------------------------------------------------
25-May-13 25-Jun-13 1,393,433.26
----------------------------------------------------------------------------
25-Jun-13 25-Jul-13 697,870.62
----------------------------------------------------------------------------
25-Jul-13 25-Aug-13 24,862.66
----------------------------------------------------------------------------
