EXHIBIT 99.4
------------
The Item 1115 Agreement
Item 1115 Agreement dated as of May 25, 2006 ("Agreement"), between
COUNTRYWIDE HOME LOANS, INC., a New York corporation ("CHL"), CWMBS, Inc., a
Delaware corporation ("CWMBS"), CWALT, Inc., a Delaware corporation ("CWALT")
and XXXXXX XXXXXXX CAPITAL SERVICES INC., as counterparty (the "Counterparty").
RECITALS
WHEREAS, CWMBS and CWALT each have filed Registration Statements on
Form S-3 (each, a "Registration Statement") with the Securities and Exchange
Commission (the "Commission") for purposes of offering mortgage backed or
asset-backed notes and/or certificates (the "Securities") through special
purpose vehicles (each, an "SPV").
WHEREAS, from time to time, on the closing date (the "Closing Date") of
a transaction pursuant to which Securities are offered (each, a "Transaction"),
the Counterparty and the SPV or CHL may enter into certain derivative agreements
with respect to the Transaction (each, a "Derivative Agreement"), including
interest rate caps and interest rate or currency swaps, for purposes of
providing certain yield enhancements to the SPV or the related trustee on behalf
of the SPV or a swap or corridor contract administrator (each, an
"Administrator").
NOW, THEREFORE, in consideration of the mutual agreements set forth
herein and for other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, the parties hereby agree as follows with
respect to any Transaction with respect to which the Counterparty has agreed to
act as derivative Counterparty:
Section 1. Definitions
Company Information: As defined in Section 4(a)(i).
Company Financial Information: As defined in Section 2(a)(ii).
Countrywide Indemnified Party: As defined in Section 4(a).
Counterparty Guarantor: A parent company of the Counterparty who
provides a full and unconditional guaranty to honor the Counterparty's
obligations under any Derivative Agreements.
Counterparty Indemnified Party: As defined in Section 4(b).
Depositor: CWMBS or CWALT, as the case may be, with respect to the
related Registration Statement for which such entity is the registrant for the
applicable Transaction.
GAAP: As defined in Section 3(a)(v).
XXXXX: The Commission's Electronic Data Gathering, Analysis and
Retrieval system.
Exchange Act: The Securities Exchange Act of 1934, as amended and the
rules and regulations promulgated thereunder.
Exchange Act Reports: All Distribution Reports on Form 10-D, Current
Reports on Form 8-K and Annual Reports on Form 10-K that are to be filed with
respect to the related SPV pursuant to the Exchange Act.
Indemnified Party: As defined in Section 4(b).
Master Agreement: The ISDA Master Agreement between the Counterparty
and SPV, or if no such Master Agreement exists, the ISDA Master Agreement
assumed to apply to the Derivative Agreement pursuant to its terms.
Prospectus Supplement: The prospectus supplement prepared in connection
with the public offering and sale of the related Securities.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation
AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from time to
time, and subject to such clarification and interpretation as have been provided
by the Commission in the adopting release (Asset-Backed Securities, Securities
Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the
staff of the Commission, or as may be provided by the Commission or its staff
from time to time.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
Sponsor: With respect to any Transaction, CHL or such other person
acting as sponsor (as that term is defined in Regulation AB) as identified to
the Counterparty by CHL at the time that the Counterparty is engaged to act as
derivative counterparty for the relevant Transaction.
Section 2. Information to be Provided by the Counterparty.
(a) Prior to printing the related Prospectus Supplement with
respect to a Transaction for which the Counterparty has agreed
to act as derivative counterparty,
(i) the Counterparty shall provide to the related
Depositor such information regarding the
Counterparty, as a derivative instrument
counterparty, as is reasonably requested by the
related Depositor for the purpose of compliance with
Item 1115(a)(1) of Regulation AB, but only to the
extent required by Item 1115(a) of Regulation AB (as
determined by CHL or any other Sponsor of the
Transaction). Such information shall include, at a
minimum, the following information:
(A) the Counterparty's legal name (and any
d/b/a);
(B) the organizational form of the Counterparty;
-2-
(C) a description of the general character of
the business of the Counterparty;
(D) a description of any affiliation (as set
forth in Item 1119) between the Counterparty
and any of the following parties:
(1) The Bank of New York (or any other
trustee identified to the
Counterparty by CHL at the time
that the Counterparty is engaged to
act as derivative counterparty for
the relevant Transaction);
(2) any originator contemplated by Item
1110 of Regulation AB and
identified to the Counterparty by
CHL at the time that the
Counterparty is engaged to act as
derivative counterparty for the
relevant Transaction;
(3) any enhancement or support provider
contemplated by Items 1114 or 1115
of Regulation AB and identified to
the Counterparty by CHL at the time
that the Counterparty is engaged to
act as derivative counterparty for
the relevant Transaction; and
(4) any other material transaction
party contemplated by Item
1100(d)(1) of Regulation AB and
identified to the Counterparty by
CHL at the time that the
Counterparty is engaged to act as
derivative counterparty for the
relevant Transaction.
(ii) if requested by the related Depositor for the purpose
of compliance with Item 1115(b), as a result of the
Sponsor's determination of the significance
percentage of the Derivative Agreement in accordance
with Item 1115 of Regulation AB (the "Significance
Percentage"), the Counterparty shall with respect to
a Transaction for which the Counterparty has agreed
to act as derivative counterparty:
(A) provide the financial data required by Item
1115(b)(1) or (b)(2) of Regulation AB (as
determined by CHL or any other Sponsor of
the Transaction and as specified by the
related Depositor to the Counterparty in
writing) with respect to a Counterparty
Guarantor; provided that, each of the
requirements set forth in Rule 3-10(b) or
3-10(c) of Regulation S-X, as applicable (or
such other requirements under Regulation AB
as may become applicable as a result of
amendments to Regulation AB or interpretive
guidance issued by the Commission (or its
staff) uniformly applicable to registrants
of asset-backed securities; provided, that,
CHL has acknowledged that no amendment is
required pursuant to this agreement), shall
be satisfied, including with respect to the
parent
-3-
and the Counterparty and the financial
statements of the parent (as though the
Counterparty was the issuer of registered
securities) (the "Company Financial
Information"), in a form appropriate for use
in the Prospectus Supplement and in an
XXXXX-compatible format (if not incorporated
by reference) and hereby authorizes the
related Depositor to incorporate by
reference the financial data required by
Item 1115(b)(2) of Regulation AB; and
(B) if applicable, cause the Counterparty
Guarantor's accountants to issue their
consent to the filing or the incorporation
by reference of such financial statements in
the Registration Statement;
provided, however, that in lieu of providing the information
specified in clauses (A) and (B) above, the Counterparty may,
in its sole discretion, cause another entity to replace the
Counterparty pursuant to Section 4(e)(i) below.
(b) Following the Closing Date with respect to a Transaction, but
only with respect to Exchange Act Reports required to be filed
for the applicable SPV,
(i) the Counterparty shall within ten business days after
the applicable event, (1) notify the related
Depositor in writing of any affiliations that develop
following the Closing Date between the Counterparty
and any of the parties specified in Section
2(a)(i)(D) (and any other parties with respect to the
Transaction contemplated by clauses (1) through (6)
of Item 1119(a) of Regulation AB and identified in
writing by the related Depositor at least ten
business days prior to the Counterparty's furnishing
such notice) and (2) provide to the related Depositor
a description of the nature of such affiliations;
(ii) if the Counterparty provided Company Financial
Information to the related Depositor for the
Prospectus Supplement, within 5 Business Days of the
release of any updated financial data, the
Counterparty shall, in the Counterparty's sole
discretion, either (A) (1) provide current Company
Financial Information as required under Item 1115(b)
of Regulation AB to the related Depositor in an
XXXXX-compatible format (if not incorporated by
reference) and hereby authorizes the related
Depositor to incorporate by reference the financial
data required by Item 1115(b)(2) of Regulation AB,
and (2) if applicable, cause the Counterparty
Guarantor's accountants to issue their consent to
filing or incorporation by reference of such
financial statements in the Exchange Act Reports of
the SPV, provided, however, if CHL or any other
Sponsor of the Transaction determines, following
request by the Counterparty, that the Significance
Percentage has been reduced below the percentage for
which such updated financial data and/or related
accountants' consent are required, (x) CHL shall
promptly notify the Counterparty of same and (y) for
so long as the Significance Percentage remains below
the percentage for which such updated financial data
and/or related accountants' consent are required, the
-4-
applicable Depositor shall not include any Company
Financial Information in the Exchange Act Reports of
the SPV and the Counterparty shall not be obligated
to provide such updated financial data or any related
accountants' consent; or (B) assign the Derivative
Agreement pursuant to Section 4(e)(i) below, and
(iii) if the related Depositor requests Company Financial
Information from the Counterparty as a result of the
Sponsor's determination of the significance
percentage of the Derivative Agreement, for the
purpose of compliance with Item 1115(b) of Regulation
AB following the Closing Date, the Counterparty shall
promptly upon determination that Company Financial
Information will be required from the Counterparty,
but in no event later than within 5 Business Days
after its receipt of written notice requesting same
from such Depositor, in the Counterparty's sole
discretion, either (A), (1) provide current Company
Financial Information as required under Item 1115(b)
of Regulation AB to the related Depositor in an
XXXXX-compatible format (if not incorporated by
reference) and hereby authorizes the related
Depositor to incorporate by reference the financial
data required by Item 1115(b)(2) of Regulation AB,
(2) if applicable, cause the Counterparty Guarantor's
accountants to issue their consent to filing or
incorporation by reference of such financial
statements in the Exchange Act Reports of the SPV and
(3) within 5 Business Days of the release of any
updated financial data, provide current Company
Financial Information as required under Item 1115(b)
of Regulation AB to the related Depositor in an
XXXXX-compatible format and if applicable, cause the
Counterparty Guarantor's accountants to issue their
consent to filing or incorporation by reference of
such financial statements in the Exchange Act Reports
of the SPV; provided, however, if CHL or any other
Sponsor of the Transaction determines, following
request by the Counterparty, that the Significance
Percentage has been reduced below the percentage for
which such updated financial data and/or related
accountants' consent are required, (x) CHL shall
promptly notify the Counterparty of same and (y) for
so long as the Significance Percentage remains below
the percentage for which such updated financial data
and/or related accountants' consent are required, the
applicable Depositor shall not include any Company
Financial Information in the Exchange Act Reports of
the SPV and the Counterparty shall not be obligated
to provide such updated financial data or any related
accountants' consent; or (B) assign the Derivative
Agreement pursuant to Section 4(e)(i) below.
(c) The applicable Depositor will provide the Counterparty with
notice no later than the 15 calendar days following the
payment date for the related Transaction for any distribution
period in which the significance percentage of the Derivative
Agreement provided by Counterparty to any SPV is 9.00% or more
in respect of Item 1115(b)(1), or 19.00% or more in respect of
Item 1115(b)(2)); provided, however, that the failure to
notify the Counterparty shall not relieve the
-5-
Counterparty of its obligations under this Agreement and shall
not relieve the applicable Depositor of any of its other
obligations under this Agreement.
Section 3. Representations and Warranties and Covenants.
(a) With respect to any Transaction, the Counterparty represents
and warrants to the applicable Depositor, as of the date on
which information is first provided to such Depositor under
Section 2(a)(ii), Section 2(b)(ii) or Section 2(b)(iii)(A),
that, except as disclosed in writing to such Depositor prior
to such date:
(i) The Counterparty Guarantor is required to file
reports with the Commission pursuant to section 13(a)
or 15(d) of the Exchange Act.
(ii) The Counterparty Guarantor has filed all reports and
other materials required to be filed by such
requirements during the preceding 12 months (or such
shorter period that such party was required to file
such reports and materials).
(iii) The reports filed by the Counterparty Guarantor
include (or properly incorporate by reference) the
financial statements of the Counterparty Guarantor.
(iv) The accountants who certify the financial statements
and supporting schedules of the Counterparty
Guarantor included in the Company Financial
Information (if applicable) are independent
registered public accountants as required by the
Securities Act.
(v) If applicable, the financial statements included in
the Company Financial Information present fairly the
consolidated financial position of the Counterparty
Guarantor and its consolidated subsidiaries as at the
dates indicated and the consolidated results of their
operations and cash flows for the periods specified;
except as otherwise stated in the Company Financial
Information, said financial statements have been
prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a
consistent basis; and the supporting schedules
included in the Company Financial Information present
fairly in accordance with GAAP the information
required to be stated therein. The selected financial
data and summary financial information included in
the Company Financial Information present fairly the
information shown therein and have been compiled on a
basis consistent with that of the audited financial
statements of the Counterparty Guarantor.
(vi) The Company Financial Information and other Company
Information included or incorporated by reference in
the Registration Statement (including through filing
on an Exchange Act Report), at the time they were or
hereafter are filed with the Commission, complied in
all material respects with the applicable
requirements of Item 1115(b) of Regulation AB (in the
case of the Company Financial Information) (including
with
-6-
respect to the presentation of the financial
information of the Counterparty Guarantor) and, did
not and will not contain an untrue statement of a
material fact or omit to state a material fact
required to be stated therein or necessary in order
to make the statements therein, in the light of the
circumstances under which they were made, not
misleading.
(b) If the Counterparty Guarantor has provided Company Financial
Information that is incorporated by reference into the
Registration Statement of the applicable Depositor, the
Counterparty Guarantor, so long as such Depositor is required
to file Exchange Act Reports with respect to the SPV, will
file promptly all financial statements required to be filed by
it with the Commission pursuant to Section 13 or 14 of the
Exchange Act.
(c) If at any time the representations and warranties set forth in
3(a)(i) through (iii) are no longer true and correct with
respect to any Transaction, the Counterparty shall provide
notice to the applicable Depositor, and if any Company
Financial Information is required to be included in such
Depositor's Registration Statement, or the Exchange Act
Reports of the related SPV, will provide to such Depositor
such Company Financial Information in XXXXX-compatible format
no later than the 20th calendar day of the month in which any
of the representations or warranties in Section 3(a)(i)
through (iii) ceased to be correct, it being understood that
providing such Company Financial Information shall be deemed
to cure any breach of such representations and warranties.
(d) The Counterparty agrees that the terms of Section 4(e)(i)
shall be incorporated by reference into any Derivative
Agreement so that each SPV who is a beneficiary of a
Derivative Agreement shall be an express third party
beneficiary of this Agreement; provided, however, that the
obligations of the Counterparty under this Agreement shall not
be covered by any guaranty of the Derivative Agreement.
(e) Upon reasonable request, in connection with either the related
Depositor's request for Company Financial Information from the
Counterparty or CHL or any other Sponsor of the Transaction
determining that the Significance Percentage has been reduced
below the percentage for which such updated financial data
and/or related accountants' consent are required, CHL or any
other Sponsor of the Transaction shall provide the
Counterparty its calculation of the Significance Percentage.
Section 4. Indemnification; Remedies
(a) The Counterparty shall indemnify CHL and the applicable
Depositor for the applicable Transaction, each person
responsible for execution of a certification pursuant to Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with
respect to the applicable Transaction; each broker dealer
acting as underwriter with respect to the applicable
Transaction, each person who controls any of such parties
(within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act) with respect to the applicable
Transaction; and the respective
-7-
present and former directors, officers, employees and agents
of each of the foregoing (each, a "Countrywide Indemnified
Party"), and shall hold each of them harmless from and against
any losses, damages, penalties, fines, forfeitures, 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:
(i) (A) any untrue statement of a material fact contained
or alleged to be contained in any information,
report, accountants' consent or other material
provided in written or electronic form under Section
2 by or on behalf of the Counterparty with respect to
the applicable Transaction (collectively, with
respect to the applicable Transaction the "Company
Information"), or (B) the omission or alleged
omission to state in the Company Information a
material fact required to be stated in the Company
Information or necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) any failure by the Counterparty to deliver any
information, report, certification, accountants'
consent or other material or to assign the Derivative
Agreement when and as required under Section 2 for
the applicable Transaction; or
(iii) any breach by the Counterparty of a representation or
warranty set forth in Section 3(a) and made as of a
date prior to the Closing Date for the applicable
Transaction, to the extent that such breach is not
cured by such Closing Date, or any breach by the
Counterparty of a representation or warranty pursuant
to Section 3 to the extent made as of a date
subsequent to the Closing Date, that is not cured in
accordance with Section 3(c).
In the case of any failure of performance described in clause
(a)(ii) of this Section, the Counterparty shall promptly
reimburse the applicable Depositor and each Person responsible
for the preparation, execution or filing of any report
required to be filed with the Commission with respect to the
related SPV, or for execution of a certification pursuant to
Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with
respect to such SPV, for all costs reasonably incurred by each
such party in order to obtain the information, report,
certification, accountants' consent or other material not
delivered as required by the Counterparty.
(b) CHL and the applicable Depositor shall indemnify the
Counterparty, each person who controls the Counterparty
(within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act) and the respective present and
former directors, officers, employees and agents of each of
the foregoing (each, a "Counterparty Indemnified Party"; and
each of the Countrywide Indemnified Party and the Counterparty
Indemnified Party shall be referred to as the "Indemnified
Party"), and shall hold each of them harmless from and against
any losses, damages, penalties, fines, forfeitures, legal fees
and expenses and related costs, judgments, and any other
costs, fees and expenses that any of them may
-8-
sustain arising out of or based upon any untrue statement or
alleged untrue statement of any material fact contained in the
Prospectus Supplement or any free writing prospectus or any
other offering materials with respect to the related
Securities or the omission or alleged omission to state a
material fact necessary in order to make the statements
therein not misleading; provided, however, that the indemnity
set forth in this Section 4(b) shall not apply insofar as such
losses, claims, expenses, damages or liabilities (or actions
in respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material
fact contained in the Company Information or the omission or
alleged omission to state in the Company Information a
material fact necessary in order to make the statements
therein not misleading and/or (ii) a breach of the
representations set forth in Sections 3(a) above; provided
further, that the foregoing proviso shall not apply to errors
in the copying, filing or use of, or incorporation by
reference of any Company Financial Information into (unless
such error resulted from a breach of the representations set
forth in 3(a)), any registration statement, prospectus or
other offering materials, or Exchange Act Filing, relating to
the Securities or the Transaction.
(c) Promptly after the Indemnified Party receives notice of the
commencement of any such action, the Indemnified Party will,
if a claim in respect thereof is to be made pursuant to this
Agreement, promptly notify the indemnifying party in writing
of the commencement thereof. In case any such action is
brought against the Indemnified Party, and it notifies the
indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's
expense to represent the Indemnified Party in any action for
which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the
fees and expenses of any separate counsel retained by the
Indemnified Party except as set forth below); provided,
however, that such counsel shall be reasonably satisfactory to
the Indemnified Party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the
Indemnified Party in an action, the Indemnified Party shall
have the right to employ separate counsel (including local
counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent
the Indemnified Party would present such counsel with a
conflict of interest, (ii) the actual or potential defendants
in, or targets of, any such action include both the
Indemnified Party and the indemnifying party, and the
Indemnified Party shall have reasonably concluded that there
may be legal defenses available to it that are different from
or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the Indemnified Party to represent
the Indemnified Party within a reasonable time after notice of
the institution of such action or (iv) the indemnifying party
shall authorize the Indemnified Party to employ separate
counsel at the expense of the indemnifying party. The
indemnifying party will not, without the prior written consent
of the Indemnified Party, settle or compromise or consent to
the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of
which
-9-
indemnification or contribution may be sought hereunder
(whether or not the Indemnified Party is an actual or
potential party to such claim or action) unless such
settlement, compromise or consent includes an unconditional
release of each Indemnified Party from all liability arising
out of such claim, action, suit or proceeding and does not
include any admission of wrongdoing by any Indemnified Party.
In addition, for so long as the indemnifying party is covering
all costs and expenses of the Indemnified Party as provided
herein, no Indemnified Party will settle or compromise or
consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought
hereunder without the consent of the indemnifying party.
(d) Nothing in this agreement shall be construed to allow the
Indemnified Party to recover punitive damages or consequential
damages from the indemnifying party.
(e) (i) With respect to any Transaction, if the Counterparty
has failed to deliver, or elects not to deliver, any
information, report, or accountants' consent when and
as required under Section 2, or if there is a
material breach by the Counterparty of a
representation or warranty pursuant to Section 3
which (A) is not cured by the Closing Date for such
Transaction (or in the case of information needed for
purposes of printing the Prospectus Supplement, the
date of printing the Prospectus Supplement), in the
case of Company Financial Information required
pursuant to Section 2(a)(ii) or a representation or
warranty pursuant to Section 3 and made as of a date
prior to the relevant Closing Date or (B) is not
cured in the lesser of (x) ten calendar days after
the date on which such information, report, or
accountants' consent was required to be delivered or
after such material breach or (y) such period in
which the applicable Exchange Act Report for which
such information is required can be timely filed
(without taking into account any extensions permitted
to be filed), in the case of Company Financial
Information required pursuant to Section 2(b) or a
representation or warranty pursuant to Section 3 and
made as of a date subsequent to the relevant Closing
Date and the Counterparty has not, at its own cost,
within the period described in clause (A) or (B)
above, caused another entity (which meets any
applicable ratings threshold in the Derivative
Agreement) to replace the Counterparty as party to
the Derivative Agreement that (i) has signed an
agreement with CHL and the applicable Depositor
substantially in the form of this Agreement (except
that the financial information requirements may
relate solely to such successor entity) and (ii) has
agreed to deliver any information, report,
certification or accountants' consent when and as
required under Section 2, on terms substantially
similar to the Derivative Agreement, then an
Additional Termination Event (as defined in the
Master Agreement) shall immediately and automatically
have occurred under the applicable Derivative
Agreement with respect to such Transaction, with the
Counterparty as the sole Affected Party (as defined
in the Master Agreement). In the event of a
termination resulting from such Additional
-10-
Termination Event, a termination payment (if any)
shall be payable by the applicable party as of the
Early Termination Date as determined by the
application of Section 6(e)(ii) of the Master
Agreement.
(ii) In the event that the Counterparty or the SPV has
found a replacement entity in accordance with Section
4(e)(i), the Counterparty shall promptly reimburse
the SPV for all reasonable incidental expenses
incurred by the SPV, as such are incurred, in
connection with the termination of the Counterparty
as counterparty and the entry into a new Derivative
Agreement. The provisions of this paragraph shall not
limit whatever rights the SPV may have under other
provisions of this Agreement or otherwise, whether in
equity or at law, such as an action for damages,
specific performance or injunctive relief.
Section 5. Miscellaneous.
(a) Calculation of Significance Percentage. With respect to any
Derivative Agreement, CHL shall be solely responsible for
calculation of the Significance Percentage.
(b) Construction. Throughout this Agreement, as the context
requires, (a) the singular tense and number includes the
plural, and the plural tense and number includes the singular;
(b) the past tense includes the present, and the present tense
includes the past; and (c) references to parties, sections,
schedules, and exhibits mean the parties, sections, schedules,
and exhibits of and to this Agreement. The section headings in
this Agreement are inserted only as a matter of convenience,
and in no way define, limit, extend, or interpret the scope of
this Agreement or of any particular section.
(c) Assignment. None of the parties may assign their rights under
this Agreement without the prior written consent of the other
parties. Subject to the foregoing, this Agreement shall be
binding on and inure to the benefit of the parties and their
respective successors and permitted assigns.
(d) No Third-Party Benefits Except as Specified. None of the
provisions of this Agreement are intended to benefit, or to be
enforceable by, any third-party beneficiaries except the
related SPV and any trustee of an SPV or any Administrator, in
each case, not in their individual capacities, but solely in
their capacities as trustee or Administrator, as applicable,
to the extent expressly set forth herein.
(e) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of
New York without regard to the conflict of laws principles
thereof.
(f) Amendment and Waiver. This Agreement may not be modified or
amended except by an instrument in writing signed by the
parties hereto. No waiver of any provision of this Agreement
or of any rights or obligations of any party under this
-11-
Agreement shall be effective unless in writing and signed by
the party or parties waiving compliance, and shall be
effective only in the specific instance and for the specific
purpose stated in that writing.
(g) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
(h) Additional Documents. Each party hereto agrees to execute any
and all further documents and writings and to perform such
other actions which may be or become necessary or expedient to
effectuate and carry out this Agreement.
(i) Severability. Any provision hereof which is prohibited or
unenforceable shall be ineffective only to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof.
(j) Integration. This Agreement contains the entire understanding
of the parties with respect to the subject matter hereof.
There are no restrictions, agreements, promises,
representations, warranties, covenants or undertakings with
respect to the subject matter hereof other than those
expressly set forth or referred to herein. This Agreement
supersedes all prior agreements and understandings between the
parties with respect to its subject matter.
(k) CHL agrees to provide to the Counterparty prior to May [o ],
2006 the methodology for its estimate of maximum probable
exposure represented by the Derivative Agreements and then to
provide notice of any changes to the methodology.
(l) Notices. All notices hereunder shall be in writing and shall
be deemed to have been duly given when delivered by mail or by
facsimile transmission to: (a) in the case of the
Counterparty,
Xxxxxx Xxxxxxx Capital Services Inc.
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Foo
Facsimile No.: 000-000-0000
with a copy to:
Xxxxxx Xxxxxxx Capital Services Inc.
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxx, Esq.
Facsimile No.: 000-000-0000
and (b) in the case of CHL and the related Depositor,
-12-
0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: Legal Department
(m) Notwithstanding anything to the contrary in this Agreement,
with respect to any Transaction and the parties to this
Agreement that are a party to such Transaction, the rights and
obligations of such parties shall not apply to, or affect in
any way, (a) any other parties hereto that are not a party to
such Transaction or (b) any other Transaction under this
Agreement.
[SIGNATURE PAGE FOLLOWS]
-13-
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of the
day and year first above written.
CWMBS, INC.
By: /s/ Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
CWALT, INC.
By: /s/ Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
COUNTRYWIDE HOME LOANS, INC.
By: /s/ Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
XXXXXX XXXXXXX CAPITAL SERVICES INC.
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
