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Dated: December 18, 2006
Rate Cap Transaction
Re: BNY Reference No.
38682
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 HSBC Bank USA, National
Association, not in its individual capacity, but solely as trustee
for the Supplemental Interest Trust for Deutsche Bank Alt-A
Securities Inc. Mortgage Loan Trust 2006-OA1 (in such capacity, the
“ Trustee ” or the “
Counterparty ”), under the Pooling and
Servicing Agreement, dated as of December 1, 2006, among Deutsche
ALT-A Securities, Inc., as Depositor, Wells Fargo Bank, N.A., as
Master Servicer, and HSBC Bank USA, National Association, as
Trustee (the “ Pooling and Servicing Agreement
”). 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 18, 2006
Effective Date:
December 25, 2008
Termination Date:
December 25, 2012, subject to adjustment
in accordance with the Following Business Day Convention
FIXED AMOUNTS
Fixed Amount Payer:
Counterparty
Fixed Amount:
USD 534,000.00
Fixed Amount
Payment Date:
December 29, 2006
FLOATING AMOUNTS
Floating Rate Payer:
BNY
Cap Rate:
For each Calculation Period, as set forth
for such period on Schedule I attached hereto.
Floating Rate for initial
Calculation Period:
To be determined
Floating Rate Day Count
Fraction:
Actual/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 25 th day of each month,
beginning on January 25, 2009 and ending on the Termination Date,
subject to adjustment in accordance with the Following Business Day
Convention.
Floating Rate Payer
Payment Dates:
Early Payment shall be applicable. The
Floating Rate Payer Payment Date shall be two (2) Business Days
preceding each Floating Rate Payer Period End Date.
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.
2)
Transfer, Amendment and
Assignment .
No transfer, amendment, waiver,
supplement, assignment or other modification of this Transaction
shall be permitted by either party unless each of Standard &
Poor’s Ratings Service, a division of The McGraw-Hill
Companies, Inc (“ S&P ”) and
Moody’s Investors Service, Inc. (“
Moody’s ”), has been provided notice of
the same and confirms in writing (including by facsimile
transmission) that it will not downgrade, qualify, withdraw or
otherwise modify its then-current ratings on the Certificates
issued under the Pooling and Servicing Agreement (the “
Certificates ”).
4.
Provisions Deemed Incorporated in a
Schedule to the Master Agreement:
1)
No 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” will
have the meaning specified in Section 14.
(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 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
Counterparty 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[; and (3) events described in Section 5(a)(vii) occurring
with respect to the Trust or the Supplemental Interest Trust are
deemed to occur to the Counterparty.]
(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. For such purpose, for so long as the Certificates
are rated by Moody’s, if BNY is the Affected Party in respect
of an Additional Termination Event or a Tax Event Upon Merger or
the Defaulting Party in respect of any Event of Default (but not,
in any case, in respect of a Termination Event arising from an
Illegality or Tax Event), the following provisions shall
apply:
(i)
The definitions of “Market
Quotation” and “Settlement Amount” are amended in
their entirety to read as follows:
“ Market Quotation
” means, with respect to one or more Terminated Transactions,
an offer capable of becoming legally binding upon acceptance made
by a Reference Market-maker with ratings that meet the
Collateralization Requirement or the Ratings Requirement, as the
case may be, for an amount that would be paid to the Counterparty
(expressed as a negative number) or by the Counterparty (expressed
as a positive number) in consideration of an agreement between the
Counterparty and such Reference Market-maker to enter into a
transaction (the “ Replacement Transaction
”), with commercial terms substantially the same as those of
this Agreement (save for the exclusion of provisions relating to
Transactions that are not Terminated Transactions) (which shall be
determined by the Counterparty, acting in a commercially reasonable
manner), that would have the effect of preserving the economic
equivalent for the Counterparty of any payment or delivery (whether
the underlying obligation was absolute or contingent and assuming
the satisfaction of each applicable condition precedent) by the
parties under Section 2(a)(i) in respect of such Terminated
Transactions or group of Terminated Transactions that would, but
for the occurrence of the relevant Early Termination Date, have
been required after that Date. For this purpose, Unpaid
Amounts in respect of the Terminated Transaction or group of
Transactions are to be excluded but, without limitation, any
payment or delivery that would, but for the relevant Early
Termination Date, have been required (assuming satisfaction of each
applicable condition precedent) after that Early Termination Date
is to be included.
“ Settlement Amount
” means, with respect to any Early Termination Date:
—
(a)
the Termination Currency Equivalent of
the Market Quotation (whether positive or negative) for each
Terminated Transaction or group of Terminated Transactions for
which a Market Quotation is accepted by the Counterparty so as to
become legally binding on or before the day falling ten (10) Local
Business Days after the day on which the Early Termination Date is
designated (or such later day not be later than the Early
Termination Date as the Counterparty may specify in writing to
BNY); or (if there is no such accepted Market Quotation)
(b)
the Counterparty’s Loss (whether
positive or negative and without reference to any Unpaid amounts)
for the relevant Terminated Transaction or group of Terminated
Transactions.
(ii)
the Counterparty and, if request is made
in writing within two Local Business Days after the day on which
the Early Termination Date is designated, BNY, shall use reasonable
efforts to obtain one or more Market Quotations before the date
determined pursuant to clause (a) of the definition of
“Settlement Amount”.
(iii)
Notwithstanding anything to the contrary
in Section 6(e)(i)(3) or Part 5(g), if the Settlement Amount is a
negative number, the Unpaid Amounts of BNY and the Counterparty
shall be subject to netting in accordance with Section
2(c).
(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)
Termination of Trust
Fund. The Trust,
Supplemental Interest Trust or Trust Fund shall be terminated
pursuant to any provision of the Pooling and Servicing Agreement
(including, without limitation, by exercise of the option to
purchase and giving of notice under Sections 10.01 of the Pooling
and Servicing Agreement). The Early Termination Date
with respect to such Additional Termination Event shall be the
Distribution Date upon which the Trust and the Supplemental
Interest Trust or Trust Fund is terminated and final payment is
made in respect of the Certificates. Each of BNY and the
Counterparty may designate an Early Termination Date in respect of
this Additional Termination Event. The Counterparty shall be
the sole Affected Party.
(ii)
Collateralization or Ratings
Event. A
Collateralization Event or Ratings Event (as defined in Paragraph
4(8)(a) has occurred and is continuing and BNY fails to comply with
the provisions of Paragraph 4(8)(b) within the time periods set out
therein, and, with respect to a Ratings Event, at least one
substitute counterparty has made an offer which remains capable of
becoming legally binding upon acceptance to be the Transferee of an
assignment, transfer or replacement in accordance with Paragraph
4(8)(b)(2)(A)). BNY shall be the sole Affected
Party.
(iii)
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 135160382.
(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:
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Party required to deliver document
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Form/Document/ Certificate
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Date by which to be delivered
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Covered by Section 3(d) Representation
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BNY and Counterparty
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Any document required or reasonably requested to allow the other
party to make payments under this Agreement without any deduction
or withholding for or on the account of any tax.
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Promptly after the earlier of (i) reasonable demand by either party
or (ii) learning that such form or document is required
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Yes
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(b)
Other documents to be delivered
are:
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Party required to deliver document
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Form/Document/ Certificate
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Date by which to be delivered
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Covered by Section 3(d) Representation
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BNY
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A certificate of an authorized officer of the party, as to the
incumbency and authority of the respective officers of the party
signing this Agreement, any relevant Credit Support Document, or
any Confirmation, as the case may be.
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Upon the execution and delivery of this Agreement
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Yes
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Counterparty
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(i) a copy of the executed Pooling and Servicing Agreement, and
(ii) an incumbency certificate verifying the true signatures and
authority of the person or persons signing this letter agreement on
behalf of the Counterparty.
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Upon the later of, receipt by such party, or within 30 days after
the date of this Agreement
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Yes
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BNY
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A copy of the annual balance sheet from the most recent publicly
available regulatory call report.
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Promptly after request by the Counterparty (if available on
http://www.fdic.gov, such delivery is not required)
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Yes
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BNY
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Legal Opinion as to enforceability of this Agreement.
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Upon the execution and delivery of this Agreement.
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Yes
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Counterparty
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Certified copy of the Board of Directors resolution (or equivalent
authorizing documentation) which sets forth the authority of
eac
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