ASSIGNMENT AGREEMENT
EXHIBIT
99.9
Exhibit
99.9
EXECUTION
COPY
ASSIGNMENT AGREEMENT,
dated
as of May 31, 2007 (“Assignment Agreement”), among COUNTRYWIDE HOME LOANS, INC.
(“Assignor”), THE BANK OF NEW YORK (“Assignee”), as Cap Contract Administrator
for CWHEQ Revolving Home Equity Loan Trust, Series 2007-E, pursuant to a
Cap
Contract Administration Agreement (the “Cap Contract Administration Agreement”)
dated as of May 31, 2007, and SWISS RE FINANCIAL PRODUCTS CORPORATION
(“Remaining Party”).
W
I T N E
S S E T H:
WHEREAS, effective as
of
May 31, 2007, Assignor desires to assign all of its rights and delegate all
of
its duties and obligations to Assignee under a certain Transaction (the
“Assigned Transaction”) as evidenced by a Confirmation with a Trade Date of May
25, 2007, whose SWISS RE FINANCIAL PRODUCTS CORPORATION reference number
is
1504283, (the “Confirmation”), a copy of which is attached hereto as Exhibit
I;
WHEREAS, Assignor and
Remaining Party executed and delivered the Confirmation in connection with
an
ISDA Master Agreement (Multicurrency—Cross Border) form (the “ISDA Form Master
Agreement”);
WHEREAS, Assignee desires
to accept the assignment of rights and assume the delegation of duties and
obligations of the Assignor under the Assigned Transaction and the Confirmation,
including any modifications that may be agreed to by Assignee and Remaining
Party; and
WHEREAS, Assignor desires
to obtain the written consent of Remaining Party to the assignment, delegation,
and assumption and Remaining Party desires to grant such consent in accordance
with the terms hereof;
NOW, THEREFORE, in
consideration of the premises and of the mutual agreements herein contained
and
for good and valuable consideration, the receipt and sufficiency of which
is
hereby acknowledged, the parties agree as follows:
1.
Assignment and Assumption. Effective as
of and from May 31, 2007
(the “Effective Date”), Assignor hereby assigns all of its rights and delegates
all of its duties and obligations to Assignee and Assignee hereby assumes
all
Assignor’s rights, duties, and obligations under the Assigned Transaction and
the Confirmation arising on or after the Effective Date.
2.
Release. Effective as
of and from the Effective Date, Remaining
Party and Assignor hereby release one another from all duties and obligations
owed under and in respect of the Assigned Transaction and the Confirmation,
and
Assignor hereby terminates its rights under and in respect of the Assigned
Transaction; provided, that such release shall not affect Assignor’s obligation
to pay the Fixed Amount in accordance with the terms of the Assigned Transaction
and the Confirmation.
3.
Limitation on Liability. Assignor and
Remaining Party agree to the
following: (a) The Bank of New York (“BNY”) is entering into this Assignment
Agreement solely in its capacity as Cap Contract Administrator under the
Cap
Contract Administration Agreement; and (b) in no case shall BNY (or any person
acting as successor Cap Contract Administrator under the Cap Contract
Administration Agreement) be personally liable for or on account of any of
the
statements, representations, warranties, covenants or obligations stated
to be
those of Assignee under the terms of the Assigned Transaction, all such
liability, if any, being expressly waived by Assignor and Remaining Party
and
any person claiming by, through or under either such party.
4.
Consent and Acknowledgment
of Remaining Party. Remaining Party
hereby consents to the assignment and delegation by Assignor to Assignee
of all
the rights, duties, and obligations of Assignor under the Assigned Transaction
pursuant to this Assignment Agreement.
5.
Governing Agreement. The Assigned
Transaction and the Confirmation
shall form a part of, and be subject to, the ISDA Form Master Agreement,
as if
Assignee and Remaining Party had executed such agreement on the trade date
of
the Transaction (the “Assignee Agreement”). The Confirmation, together
with all other documents referring to the ISDA Form Master Agreement confirming
the transaction entered into between Assignee and Remaining Party, shall
form a
part of, and be subject to, the Assignee Agreement. For the purposes of
this paragraph, capitalized terms used herein and not otherwise defined shall
have the meanings assigned in the ISDA Form Master Agreement.
6.
Representations. Each party hereby
represents and warrants to the
other parties as follows:
(a)
It is duly organized,
validly existing and in good standing under the laws of
its jurisdiction of organization or incorporation;
(b)
It has the power
to execute and deliver this Assignment Agreement; and
(c)
Its obligations
under this Assignment Agreement constitute its legal, valid and
binding obligations, enforceable in accordance with their respective
terms.
As of the Effective Date,
each of Assignor and Remaining Party represents that no event or condition
has
occurred that constitutes an Event of Default, a Potential Event of Default
or,
to the party’s knowledge, a Termination Event (as such terms are defined in the
Confirmation and Assignee Agreement), with respect to the party, and no such
event would occur as a result of the party’s entering into or performing its
obligations under this Assignment Agreement.
7.
Indemnity. Each of Assignor
and Remaining Party hereby agrees to
indemnify and hold harmless Assignee with respect to any and all claims arising
under the Assigned Transaction prior to the Effective Date. Each of
Assignee and Remaining Party (subject to the limitations set forth in paragraph
3 above) hereby agrees to indemnify and hold harmless Assignor with respect
to
any and all claims arising under the Assigned Transaction on or after the
Effective Date.
8.
Governing Law. This Assignment
Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
2
9.
Notices. For the purposes
of this Assignment Agreement and Section
12(a) of the ISDA Form Master Agreement of the Assigned Transaction, the
addresses for notices or communications are as follows: (i) in the case of
Assignor, Countrywide Home Loans, Inc., 0000 Xxxx Xxxxxxx, Xxxx Xxxx XX-000,
Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxx Xxxxx, with a copy to the
same address, Attention: Legal Department, or such other address as may be
hereafter furnished in writing to Assignee and Remaining Party; (ii) in the
case
of Assignee, The Bank of New York, 000 Xxxxxxx Xxxxxx, 0 Xxxx, Xxx Xxxx,
Xxx
Xxxx 00000, Attention: Corporate Trust MBS Administration, CWHEQ, Series
2007-E, with a copy to The Bank of New York Trust Company. N.A., 000 Xxxxxx,
0xx
Xx, Xxxxxxx, XX 00000, Attention: Structured Finance Services, or such other
address as may be hereafter furnished in writing to Assignor and Remaining
Party; and (iii) in the case of Remaining Party,
|
Address:
|
00 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
|
|
Attention:
|
Head of
Operations
|
|
Telex No.
|
000-000-0000
|
|
copy to:
|
00 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000
|
|
Attention:
|
Legal
Department
|
|
Telex No:
|
000-000-0000
|
|
|
|
such other address as may be hereafter
furnished in writing to Assignor and Assignee.
10.
Payments. All payments
(if any) remitted by Remaining Party under
the Assigned Transaction shall be made by wire transfer according to the
following instructions:
The
Bank of New York.-Houston, TX
ABA
# 000-000-000
G.L.
Account # 211705
FFC
TAS # 700969
Ref:
CWHEQ 2007-E
Attn:
Xxxxxx Xxxxxxxx 000-000-0000
11.
Counterparts. This Assignment
Agreement may be executed and
delivered in counterparts (including by facsimile transmission), each of
which
when executed shall be deemed to be an original but all of which taken together
shall constitute one and the same instrument.
3
IN WITNESS WHEREOF,
the
parties hereto have executed this Assignment Agreement as of the date first
above written.
COUNTRYWIDE HOME LOANS, INC.
By: /s/ Xxxxxx
Xxxxx
Name: Xxxxxx
Xxxxx
Title: Executive
Vice President
THE
BANK OF
NEW YORK, AS CAP CONTRACT ADMINISTRATOR FOR CWHEQ REVOLVING HOME EQUITY LOAN
TRUST, SERIES 2007-E
By: /s/
Xxxxxxxx
Xxxxxxxxxxx
Name: Xxxxxxxx
Xxxxxxxxxxx
Title: Vice
President
SWISS
RE
FINANCIAL PRODUCTS CORPORATION
By: /s/ Xxxxx X.
Xxxxxx
Name: Xxxxx X.
Xxxxxx
Title:
Director
4
ATTACHMENT
I TO EXHIBIT 99.9
SWISS
RE FINANCIAL PRODUCTS CORPORATION
00 Xxxx
00xx Xxxxxx
Xxx
Xxxx, Xxx
Xxxx 00000
Fax:
(000)
000-0000/Phone: (000) 000-0000
DATE: May
31, 2007
TO:
Countrywide Home Loans, Inc. (“Party B”)
0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention:
Documentation
Unit
FROM:
Swiss
Re Financial Products Corporation (“Party A”)
RE:
CAP TRANSACTION - Class A Notes
Our
Reference Number: 1504283
Dear Sir or Madam:
The
purpose of this letter agreement is to confirm the terms and conditions
of the
Transaction entered into between Countrywide Home Loans, Inc. and Swiss
Re
Financial Products Corporation (each a “party” and together “the parties”) on
the Trade Date specified below (the “Transaction”).
This letter agreement
constitutes a “Confirmation” and the definitions and provisions contained in the
2000 ISDA Definitions (the “Definitions”) as published by the International
Swaps and Derivatives Association, Inc., (“ISDA”) are incorporated into this
Confirmation. In the event of any inconsistency between the Definitions
and this
Confirmation, this Confirmation will govern. This Confirmation will be
governed by and subject to the terms and conditions which would be applicable
if, prior to the Trade Date, the parties had executed and delivered an
ISDA
Master Agreement (Multicurrency-Cross Border), in the form published by
ISDA in
1992 (the “Master Agreement”), with the attached Schedule B as the Schedule to
the Master Agreement and the modifications provided below (collectively,
the
“Agreement”). In the event of any inconsistency between the provisions of the
Master Agreement and this Confirmation and the attached Schedule B, this
Confirmation will govern.
Other capitalized
terms
used herein (but not otherwise defined) shall have the meaning specified
in that
certain Indenture, dated as of May 31, 2007 (the “Indenture”), among CWHEQ Home
Equity Loan Trust, Series 2007-E, as issuer and The Bank of New York, as
Indenture Trustee.
In this
Confirmation “Party A” means Swiss Re Financial Products Corporation and “Party
B” means Countrywide Home Loans, Inc.
1.
This Confirmation evidences a complete binding agreement between the parties
as
to the terms of the Transaction to which this Confirmation relates. In
addition, each party represents to the other party and will be deemed to
represent to the other party on the date on which it enters into a Transaction
that (absent a written agreement between the parties that expressly imposes
affirmative obligations to the contrary for that Transaction):
1
(i)
Principal. In the case of Party A, and Party B it is acting as
principal and not as agent when entering into the Transaction.
(ii)
Non-Reliance. In the case of both parties, it is acting for its
own account, it has made its own independent decisions to enter into the
Transaction and as to whether the Transaction is appropriate or proper
for it
based upon its own judgment and upon advice from such advisors as it has
deemed
necessary. It is not relying on any communication (written or oral) of the
other party as investment advice or as a recommendation to enter into the
Transaction; it being understood that information and explanations related
to
the terms and conditions of the Transaction shall not be considered investment
advice or a recommendation to enter into the Transaction. No communication
(written or oral) received from the other party shall be deemed to be an
assurance or guarantee as to the expected results of that Transaction.
(iii) Evaluation
and Understanding. It is capable of evaluating and understanding
(on its own behalf or through independent professional advice), and understands
and accepts, the terms, conditions and risks of the Agreement and the
Transaction. It is also capable of assuming, and assumes, the financial
and other risks of the Agreement and the Transaction.
(iv)
Status of Parties. The other party is not acting as an agent,
fiduciary or advisor for it in respect of that Transaction.
2.
The terms of the particular Transaction to which this Confirmation relates
are
as follows:
|
Notional
Amount:
|
The amount
set forth
on the attached Amortization Schedule, Schedule A
|
||
|
Trade Date:
|
May 25,
2007
|
||
|
Effective Date:
|
May 31,
2007
|
||
|
Termination Date:
|
February
15, 2013, subject to adjustment in accordance with the Following
Business
Day Convention.
|
||
|
Fixed Amounts:
|
|
||
|
Fixed Rate Payer:
|
Party B
|
||
|
Fixed Rate Payer Payment
Date:
|
May 31 2007
|
||
|
|
Fixed Amount:
|
USD 25,000
|
|
|
Floating
Amounts:
|
|
||
|
Floating Rate Payer:
|
Party A
|
||
2
|
Cap
Rate:
|
With respect to any Calculation
period,
the amount set forth for such period on Schedule A attached hereto
under
the heading Cap Rate (%)
|
|
Floating Rate Payer Period
End
Dates:
|
The 15th
day of each month, subject to adjustment in accordance with the
Following
Business Day Convention.
|
|
Floating Rate Payer Payment
Dates:
|
Two (2) Business Days prior to
each
Period End Date, commencing on July 12, 2007
|
|
Floating Rate Option:
|
USD-LIBOR-BBA
|
|
Designated Maturity:
|
One
month
|
|
Spread:
|
None
|
|
Floating Rate Day Count
Fraction:
|
Actual/360
|
|
Reset Dates:
|
The first day of each Calculation
Period.
|
|
Compounding:
|
Inapplicable
|
|
Business Days for payment:
|
|
|
Calculation Agent:
|
Party A; provided, however, that
if an
Event of Default occurs with respect to Party A, then Party B shall
be
entitled to appoint a financial institution which would qualify
as a
Reference Market-maker to act as Calculation Agent (such financial
institution subject to Party A’s consent).
|
|
3.
Recording
of
Conversations
Each party
(i)
consents to the recording of the telephone conversations of trading
and
marketing personnel of the parties, (ii) agrees to obtain any necessary
consent of, and give notice of such recording to, such personnel
of it,
and (iii) agrees that recordings may be submitted in evidence in
any
proceedings relating to this Agreement or any potential Transaction.
|
3
|
4.
Account
Details:
|
|
|
Account for payments to Party A:
|
JPMorgan Chase Bank
SWIFT: XXXXXX00
Account of: Swiss Re Financial
Products
Account No.: 066-911184
ABA# 000000000
|
|
Account for payments to
Party
B:
|
As per Party B’s standard
settlement instructions.
|
|
5.
Offices:
|
|
|
The Office of Party
A for this
Transaction is:
The Office of Party B
for this
Transaction:
|
New York, NY
New York, NY
|
|
6.
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.
|
|
4
Please
promptly confirm that the foregoing correctly sets forth the
terms of the Transaction entered into between us by executing this Confirmation
and returning it to us by facsimile to:
Swiss
Re Financial Products Corporation
Attention:
Derivatives Documentation
Fax:
(000) 000-0000 Phone: (000) 000-0000
|
Swiss Re Financial Products
Corporation
|
|
Accepted and confirmed
as of the
date first written:
Countrywide Home Loans,
Inc.
|
|
|
By: /s/ Xxxxx X. Xxxxxx
|
|
By: /s/ Xxxxx Xxxxxxx
|
|
|
Name: Xxxxx X. Xxxxxx
|
|
Name:
|
Xxxxx Xxxxxxx
|
|
Title: Director
|
|
Title:
|
Executive Vice
President
|
1
Schedule A to the Confirmation
dated as May 31, 2007
Re: Reference Number:
1504283
Between Swiss Re Financial
Products Corporation and Countrywide Home Loans, Inc. (“Party B”).
Amortization Schedule, subject
to adjustment in accordance with the Following Business Day Convention
|
From
and including
|
To
but excluding
|
Notional
Amount (USD)
|
Cap
Rate (%)
|
|
31-May-07
|
15-Jul-07
|
900,000,000.00
|
8.953
|
|
15-Jul-07
|
15-Aug-07
|
870,359,526.00
|
16.159
|
|
15-Aug-07
|
15-Sep-07
|
841,695,226.00
|
16.724
|
|
15-Sep-07
|
15-Oct-07
|
813,974,953.00
|
17.292
|
|
15-Oct-07
|
15-Nov-07
|
787,167,616.00
|
16.159
|
|
15-Nov-07
|
15-Dec-07
|
761,243,148.00
|
17.292
|
|
15-Dec-07
|
15-Jan-08
|
736,172,472.00
|
16.159
|
|
15-Jan-08
|
15-Feb-08
|
711,927,471.00
|
16.724
|
|
15-Feb-08
|
15-Mar-08
|
688,480,951.00
|
17.898
|
|
15-Mar-08
|
15-Apr-08
|
665,806,615.00
|
15.595
|
|
15-Apr-08
|
15-May-08
|
643,879,033.00
|
17.292
|
|
15-May-08
|
15-Jun-08
|
622,673,611.00
|
16.159
|
|
15-Jun-08
|
15-Jul-08
|
602,166,565.00
|
16.792
|
|
15-Jul-08
|
15-Aug-08
|
582,083,993.00
|
15.676
|
|
15-Aug-08
|
15-Sep-08
|
562,659,402.00
|
16.241
|
|
15-Sep-08
|
15-Oct-08
|
543,870,835.00
|
16.792
|
|
15-Oct-08
|
15-Nov-08
|
525,697,407.00
|
15.676
|
|
15-Nov-08
|
15-Dec-08
|
508,119,290.00
|
16.792
|
|
15-Dec-08
|
15-Jan-09
|
491,115,889.00
|
15.676
|
|
15-Jan-09
|
15-Feb-09
|
474,669,388.00
|
16.241
|
|
15-Feb-09
|
15-Mar-09
|
458,760,020.00
|
18.013
|
|
15-Mar-09
|
15-Apr-09
|
443,370,682.00
|
14.547
|
|
15-Apr-09
|
15-May-09
|
428,487,313.00
|
16.793
|
|
15-May-09
|
15-Jun-09
|
414,087,164.00
|
15.677
|
|
15-Jun-09
|
15-Jul-09
|
400,158,441.00
|
16.793
|
|
15-Jul-09
|
15-Aug-09
|
386,683,138.00
|
15.677
|
|
15-Aug-09
|
15-Sep-09
|
373,648,890.00
|
16.242
|
|
15-Sep-09
|
15-Oct-09
|
361,038,307.00
|
16.793
|
|
15-Oct-09
|
15-Nov-09
|
348,838,725.00
|
15.677
|
|
15-Nov-09
|
15-Dec-09
|
337,038,302.00
|
16.794
|
|
15-Dec-09
|
15-Jan-10
|
325,620,431.00
|
15.678
|
2
|
15-Jan-10
|
15-Feb-10
|
314,576,043.00
|
16.243
|
|
15-Feb-10
|
15-Mar-10
|
303,889,020.00
|
18.015
|
|
15-Mar-10
|
15-Apr-10
|
293,549,293.00
|
14.548
|
|
15-Apr-10
|
15-May-10
|
283,552,053.00
|
16.795
|
|
15-May-10
|
15-Jun-10
|
273,873,033.00
|
15.679
|
|
15-Jun-10
|
15-Jul-10
|
264,510,370.00
|
16.795
|
|
15-Jul-10
|
15-Aug-10
|
255,448,903.00
|
15.679
|
|
15-Aug-10
|
15-Sep-10
|
246,683,498.00
|
16.244
|
|
15-Sep-10
|
15-Oct-10
|
238,199,337.00
|
16.796
|
|
15-Oct-10
|
15-Nov-10
|
229,989,490.00
|
15.680
|
|
15-Nov-10
|
15-Dec-10
|
222,047,713.00
|
16.796
|
|
15-Dec-10
|
15-Jan-11
|
214,359,562.00
|
15.680
|
|
15-Jan-11
|
15-Feb-11
|
206,922,331.00
|
16.245
|
|
15-Feb-11
|
15-Mar-11
|
199,721,824.00
|
18.018
|
|
15-Mar-11
|
15-Apr-11
|
192,752,927.00
|
14.551
|
|
15-Apr-11
|
15-May-11
|
186,017,840.00
|
16.798
|
|
15-May-11
|
15-Jun-11
|
179,489,665.00
|
15.682
|
|
15-Jun-11
|
15-Jul-11
|
173,174,259.00
|
16.799
|
|
15-Jul-11
|
15-Aug-11
|
167,057,811.00
|
15.683
|
|
15-Aug-11
|
15-Sep-11
|
161,140,585.00
|
16.248
|
|
15-Sep-11
|
15-Oct-11
|
155,616,603.00
|
16.800
|
|
15-Oct-11
|
15-Nov-11
|
150,491,547.00
|
15.683
|
|
15-Nov-11
|
15-Dec-11
|
145,535,280.00
|
16.800
|
|
15-Dec-11
|
15-Jan-12
|
140,742,241.00
|
15.683
|
|
15-Jan-12
|
15-Feb-12
|
136,107,056.00
|
16.248
|
|
15-Feb-12
|
15-Mar-12
|
131,624,525.00
|
17.389
|
|
15-Mar-12
|
15-Apr-12
|
127,289,621.00
|
15.118
|
|
15-Apr-12
|
15-May-12
|
123,097,483.00
|
16.800
|
|
15-May-12
|
15-Jun-12
|
119,040,750.00
|
15.683
|
|
15-Jun-12
|
15-Jul-12
|
115,117,743.00
|
16.800
|
|
15-Jul-12
|
15-Aug-12
|
111,324,052.00
|
15.683
|
|
15-Aug-12
|
15-Sep-12
|
107,655,413.00
|
16.248
|
|
15-Sep-12
|
15-Oct-12
|
104,107,702.00
|
16.800
|
|
15-Oct-12
|
15-Nov-12
|
100,676,932.00
|
15.683
|
|
15-Nov-12
|
15-Dec-12
|
97,359,248.00
|
16.800
|
|
15-Dec-12
|
15-Jan-13
|
94,150,919.00
|
15.683
|
|
15-Jan-13
|
15-Feb-13
|
90,938,513.00
|
16.248
|
3
Schedule
B to the Confirmation dated as of May 31, 2007
Re: Reference Number:
1504283
Between Swiss Re Financial
Products Corporation (“Party A”) and Countrywide Home Loans, Inc. (“Party
B”).
Part
1.
Termination Provisions.
(a) “Specified
Entity”means in relation to Party A for the purpose of the
Agreement:
Section
5(a)(v): None.
Section
5(a)(vi): None.
Section
5(a)(vii): None.
Section
5(b)(iv): None.
and in relation
to
Party B for the purpose of the Agreement:
Section
5(a)(v):None.
Section
5(a)(vi): None.
Section
5(a)(vii): None.
Section
5(b)(iv): None.
(b)“Specified
Transaction”willhave the meaning specified in Section 14 of the
Agreement.
(c) The “Breach of Agreement” provisions of Section
5(a)(ii) of the Agreement will be inapplicable to Party B.
(d) The “Credit Support Default” provisions of
Section 5(a)(iii) of the Agreement will be inapplicable to Party B.
(e)
The “Misrepresentation” provisions of Section 5(a)(iv) of the
Agreementwill be inapplicable to Party B.
(f)
The “Default Under Specified Transaction” provisions of Section
5(a)(v) of the Agreement will be inapplicable to Party A and Party B.
(g)
The “Cross Default”provisions of Section 5(a)(vi) of the
Agreementwill be inapplicable to Party A and Party B.
(h)
The “Credit Event Upon Merger”provisions of Section 5(b)(iv) of
the Agreement will be inapplicable to Party A and Party B.
(i)
The “Automatic Early Termination”provision of Section 6(a) of
the Agreement will be inapplicable to Party A and Party B
(j)
Payments on Early Termination. For the purpose of
Section 6(e) of the Agreement:
(i) Market
Quotation will apply; and
(ii) The Second
Methodwillapply.
4
(k)
“Termination Currency”means United States Dollars.
(l)
“Additional Termination Event”will not apply, except as
provided in Part 5(k) hereof, any confirmation and in the Regulation AB
Agreement as defined in Part 5(k) hereof.
Part 2. Tax
Representations.
Payer Representations. For the purpose of Section 3(e) of the Agreement,
Party A will make the following representation and Party B will not make
the
following representation:
It is not
required
by any applicable law, as modified by the practice of any relevant governmental
revenue authority, of any Relevant Jurisdiction to make any deduction or
withholding for or on account of any Tax from any payment (other than interest
under Section 2(e), 6(d)(ii) or 6(e) of the Agreement) to be made by it
to the
other party under this Agreement. In making this representation, it may
rely on
(i) the accuracy of any representations made by the other party pursuant
to
Section 3(f) of the Agreement, (ii) the satisfaction of the agreement contained
in Section 4(a)(i) or 4(a)(iii) of the Agreement and the accuracy and
effectiveness of any document provided by the other party pursuant to Section
4(a)(i) or 4(a)(iii) of the Agreement and (iii) the satisfaction of the
agreement of the other party contained in Section 4(d) of the Agreement,
provided that it shall not be a breach of this representation where
reliance is placed on clause (ii) and the other party does not deliver
a form or
document under Section 4(a)(iii) of the Agreement by reason of material
prejudice to its legal or commercial position.
Payee Representations. For the purpose of Section 3(f) of the
Agreement, the following representations are made:
(i)
Party A represents
that itis a corporation organized under the laws of the State
of Delaware.
(ii)
Party B represents that itis a “United States person” as such term is
defined in Section 7701(a)(30) of the Internal Revenue Code of 1986, as
amended.
Part 3. Agreement
to Deliver Documents.
For the purpose of Sections 4(a)(i) and
(ii) of
the Agreement, Party A and Party B agree to deliver the following documents,
as
applicable:
(a) Tax forms, documents or certificates
to be
delivered are:
|
Party Required to
Deliver
Document
|
Form/Document/Certificate
|
Date by
Which
to be
Delivered
|
|
Party A and Party B
|
Any form or document required or
reasonably requested to allow the other party to make payments
under the
Agreement without any deduction or withholding for or on account
of any
Tax, or with such deduction or withholding at a reduced rate.
|
Promptly
upon reasonable Demand by the other party.
|
5
(b)
Other documents to be delivered and covered by the Section 3(d) representation
are:--
|
Party
required
to deliver
|
Form/Document/or
Certificate
|
Date
by which
to be delivered
|
Covered
by
Section 3(d) representation
|
|
Party
A
|
Certified copy
of the
Board of Directors resolution (or equivalent authorizing 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.
|
Concurrently
with the
execution and delivery of the Confirmation.
|
Yes
|
|
Party A and Party B
|
Incumbency Certificate (or, if available
the
current authorized signature book or equivalent authorizing documentation)
specifying the names, titles, authority and specimen signatures
of the
persons authorized to execute the Confirmation which sets forth
the
specimen signatures of each signatory to the Confirmation signing
on its
behalf.
|
Concurrently with the execution and
delivery
of the Confirmation unless previously delivered and still in full
force
and effect.
|
Yes
|
|
Party A
|
The Guaranty of Swiss Reinsurance Company
(“Swiss Re”), dated as of the date hereof, issued by Swiss Re as Party A’s
Credit Support Provider (in the form annexed hereto as Exhibit
A).
|
Concurrently with the execution and
delivery
of the Confirmation.
|
No
|
|
Party
B
|
The
Indenture.
|
Upon
the filing of the Indenture on the Security and Exchange Commission’s
XXXXX system
|
No
|
6
Part
4. Miscellaneous.
(a)
Addresses
for Notices. For the purposes of Section 12(a)
of the Agreement:
Addresses
for notices or communications to Party A and to Party B shall be those
set forth
on the first page of the Confirmation.
(b) Process Agent. For
the purpose of Section 13(c) of the Agreement:
Party A appoints as its Process
Agent:
None.
Party B
appoints as its Process Agent: None.
(c)
Offices.
With respect to Party A, the provisions of Section
10(a) of the Agreement will apply.
(d) Multibranch Party.
For the purpose
of Section 10(c) of the Agreement:
Party A is not a Multibranch
Party.
Party B
is not a Multibranch Party.
(e) Credit Support
Document. Details of any Credit Support Document: Guaranty of
Swiss Re dated as
of the date hereof in the form annexed hereto as
Exhibit A.
(f) Credit Support
Provider.
Credit Support Provider means in relation to Party A: Swiss Re.
Credit Support Provider
means in relation to Party B: None.
(g)
Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York (without
reference to conflicts of law provisions thereof).
(h)
Netting of Payments. Subparagraph (ii) of Section 2(c)
of the Agreement will apply to the Transaction evidenced by the
Confirmation.
(i)
“Affiliate”
will
have the meaning specified in Section 14 of
the Agreement.
(j) Jurisdiction.
Section 13(b) of the
Agreement is hereby amended by: (i) deleting in the second
line of
subparagraph (i) thereof the word “non-”: and (ii)
deleting the final paragraph thereof.
Part 5. Other
Provisions.
(a)
Modifications to the Agreement. Section 3(a) of the
Agreement
shall be amended to include the following additional representations after
paragraph 3(a)(v):
(vi)
Eligible Contract Participant
etc. It is an “eligible contract participant” as defined in
Section 1a(12) of the U.S. Commodity Exchange Act (7 U.S.C. 1a), as amended
by
the Commodity Futures Modernization Act of 2000 and the Transaction evidenced
hereby has been the subject of individual negotiations and is intended
to be
exempt from, or otherwise not subject to regulation thereunder.
7
(b)
Waiver of Right to Trial by Jury. Each party hereby
irrevocably waives any and all rights to trial by jury in any legal proceeding
arising out of or relating to this Agreement or any Transaction hereunder.
(c) Absence
of Litigation. In Section 3(c) of the Agreement the words “or any of
its Affiliates” shall be deleted.
(d) Tax
Event. In Section 5(b)(ii)(y) of the Agreement the words “, or there is
a substantial likelihood that it will,” shall be deleted.
(e)
Fully-paid Party Protected.
Notwithstanding the terms of Sections
5
and 6 of the Agreement, if Party B has satisfied its payment obligations
under
Section 2(a)(i) of the Agreement, then unless Party A is required pursuant
to
appropriate proceedings to return to Party B or otherwise returns to Party
B
upon demand of Party B any portion of such payment, the occurrence of an
event
described in Section 5(a) of the Agreement with respect to Party B with
respect
to this Transaction shall not constitute an Event of Default or Potential
Event
of Default with respect to Party B as the Defaulting Party. For purposes
of the Transaction to which this Confirmation relates, Party B’s only payment
obligation under Section 2(a)(i) of the Agreement is to pay the Fixed Amount
on
the Fixed Rate Payer Payment Date.
(f)
Proceedings.
Party A shall
not institute against or cause any other person to institute
against, or join any other person in instituting against, CWHEQ Home Equity
Loan
Trust, Series 2007-E, any bankruptcy, reorganization, arrangement, insolvency
or
liquidation proceedings, or other proceedings under any federal or state
bankruptcy, dissolution or similar law, for a period of one year and one
day
following indefeasible payment in full of the CWHEQ Home Equity Loan Trust,
Series 2007-E, Class A Notes (the “Securities”).
(g)
Set-off.
The provisions
for Set-off set forth in Section 6(e) of the Agreement shall not
apply for purposes of this Transaction.
(h)
Section
1(c)
For purposes of Section 1(c) of the Agreement, this Transaction
shall
be the sole Transaction under the Agreement.
(i)
[Reserved]
(j)
Amendment
to ISDA Form.
The “Failure to Pay
or Deliver” provision in Section 5(a)(i) of the Agreement is
hereby amended by deleting the word “third” in the third line thereof and
inserting the word “first” in place thereof.
(k)
Regulation
AB Compliance.
8
Party A and
Party B agree that the terms of the Item 1115 Agreement dated as of
January 26, 2006 (the “Regulation AB Agreement”), between Countrywide Home
Loans, Inc., CWABS, Inc., CWMBS, Inc., CWALT, Inc., CWHEQ, Inc. and Swiss
Re
Financial Products Corporation shall be incorporated by reference into
this
Agreement so that Party B shall be an express third party beneficiary of
the
Regulation AB Agreement. A copy of the Regulation AB Agreement is attached
hereto as Annex B.
9
Exhibit
A
GUARANTY
To:
The
Bank of New York, not in an individual capacity, but solely as Cap Contract
Administrator for CWHEQ Home Equity Loan Trust, Series 2007-E (Class A Notes)
(the “Rated Securities”).
1.
The undersigned, SWISS REINSURANCE
COMPANY, a Swiss company (the "Guarantor"),
hereby absolutely and unconditionally guarantees the prompt payment as and
when
due of all obligations of its indirect, wholly-owned subsidiary SWISS RE
FINANCIAL PRODUCTS CORPORATION, a Delaware corporation ("THE GUARANTEED
SUBSIDIARY") under, in connection with or ancillary to a long form confirmation
(Reference Number 1504283) dated as of May 31, 2007 between the Beneficiary
and
THE GUARANTEED SUBSIDIARY as amended or restated from time to time (the
“Agreements”) which support the issuance of the Rated Securities. In this
Guarantee these obligations are referred to as the “Guaranteed
Obligations”. This Guarantee is given solely for the benefit of, and is
enforceable only by, the Beneficiary or any trustee as assignee of the
Beneficiary to which this Guarantee has been validly assigned in accordance
with
applicable law and who is acting as trustee for the investors in the Rated
Securities.
2.
This Guarantee constitutes a Guarantee of payment and not of collection and
is
not conditional or contingent upon any attempts to collect from, or pursue
or
exhaust any rights or remedies against, THE GUARANTEED SUBSIDIARY. A
demand for payment hereunder may at the Beneficiary’s option be made in writing
addressed to the Chief Financial Officer of the Guarantor. This Guarantee
is not
however dependent in any way on the manner of the demand for payment. Delay
in
making a claim will not affect the Guarantor’s obligations under this Guarantee
unless the relevant legal limitation period has expired.
3.
This Guarantee constitutes,
and is intended by the Guarantor to constitute, an
unlimited non-accessory undertaking („unbeschränkte, nicht akzessorische
Verpflichtung“) within the meaning of Article 111 of the Swiss Code of
Obligations (‚CO‘) and is not a mere surety („Bürgschaft“) within the meaning of
Article 492 et seq of the CO.
4.
Notwithstanding any reference
to the obligations of THE GUARANTEED SUBSIDIARY,
the Guarantor’s obligations under this Guarantee are its absolute and
independent obligations as a primary obligor. Payment of a claim hereunder
is required as soon as the Guaranteed Obligations are due and
payable.
5.
To the extent that any event
or circumstance would give rise to any legal or
equitable discharge, defence or other rights of the Guarantor under this
Guarantee, but which event or circumstance would not give rise to any discharge,
defence or other rights of THE GUARANTEED SUBSIDIARY under the Agreements,
the
Guarantor hereby fully waives, subject to paragraph 7 below, such discharge,
defence, or other rights and the Guarantor’s liability hereunder shall continue
as if such event or circumstance had not arisen.
6.
The Guarantor further agrees,
subject to paragraph 7 below, that to the extent
that any event or circumstance gives rise to any legal or equitable discharge,
defence or other rights available to both the Guarantor under the Guarantee
and
THE GUARANTEED SUBSIDIARY under the Agreements, the Guarantor hereby agrees
to
waive such discharge, defense or other rights against the Beneficiary, until
such time as all the Guaranteed Obligations in relation to the same event
or
circumstance have been fully met as required to protect investors in the
Rated
Securities.
7.
Notwithstanding any other
provision of this Guarantee, the Guarantor will have
the right, prior to making any payment under this Guarantee, to (a) assert
such
rights of offset as are set forth in the Agreements to the extent that such
rights relate to amounts due and payable by the Beneficiary to THE GUARANTEED
SUBSIDIARY and not to amounts which are subject to dispute; and (b) defend
manifestly fraudulent claims under this Guarantee made by the
Beneficiary.
10
8.
This Guarantee will continue
in full force and effect in relation to all
Guaranteed Obligations until all the Guaranteed Obligations have been satisfied
in full. For the avoidance of doubt, all Guaranteed Obligations entered
into by THE GUARANTEED SUBSIDIARY during the term of this Guarantee shall
be
honoured in accordance with this Guarantee and shall be binding on the Guarantor
and its successors and assigns. This Guarantee may be amended only as
necessary to reflect changes to the Guaranteed Obligations which are validly
agreed to by the Beneficiary (or the trustee as assignee of the Beneficiary)
in
accordance with the terms of the Rated Securities, including any requirement
to
obtain the consent of some or all of the investors in the Rated
Securities.
9.
If any payment by THE GUARANTEED
SUBSIDIARY is avoided, recaptured or reduced as
a result of insolvency or any similar event affecting creditors rights generally
having occurred in respect of THE GUARANTEED SUBSIDIARY, the Guarantor’s
liability under this Guarantee shall continue as if the avoided, recaptured
or
reduced payment had not occurred.
10.
Upon payment
by
the Guarantor to the Beneficiary of any amount due under this Guarantee,
the
Guarantor shall be entitled to require the assignment to it of the rights
of the
Beneficiary against THE GUARANTEED SUBSIDIARY to the extent satisfied by
such
payment, and the Beneficiary will take at the Guarantor's expense such steps
as
the Guarantor may reasonably require to implement such assignment. The Guarantor
shall not exercise any rights against THE GUARANTEED SUBSIDIARY which it
may
acquire in consequence of such payment and assignment unless and until all
the
Guaranteed Obligations to the Beneficiary shall have been paid in
full.
11.
This
Guarantee
is governed and will be construed in accordance with Swiss law. The
exclusive place of jurisdiction for any legal proceeding hereunder shall
be
Zurich, Switzerland.
IN
WITNESS WHEREOF, the Guarantor has caused this Guarantee to be
executed in its name as of the 31st day of May, 2007.
SWISS REINSURANCE
COMPANY
11
