The Item 1115 Agreement
EXHIBIT
99.9
Item
1115
Agreement dated as of April 27, 2006 (this “Agreement”), between COUNTRYWIDE
HOME LOANS, INC., a New York corporation (“CHL”), CWABS, INC., a Delaware
corporation (“CWABS”), CWMBS, Inc., a Delaware corporation (“CWMBS”), CWALT,
Inc., a Delaware corporation (“CWALT”), CWHEQ, Inc., a Delaware corporation
(“CWHEQ”) and DEUTSCHE BANK AG, NEW YORK BRANCH, as counterparty (the
“Counterparty”).
Section
1.
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Company
Information: As defined in Section 5(a)(i).
Company
Financial Information: As defined in the definition of “Pre-Closing
Termination Event”.
Depositor: Means
CWABS, CWMBS, CWALT or CWHEQ with respect to the related Registration Statement
for which the entity is the registrant.
GAAP: As
defined in Section 3(a)(v).
XXXXX: The
Commission’s Electronic Data Gathering, Analysis and Retrieval
system.
Exchange
Act: Has the meaning set forth in the recitals.
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.
IFRS: Has
the meaning set forth in Section 3(a)(v).
Indemnified
Party: As defined in Section 5(a).
IRC: The
requirements of Section 1100(c) of Regulation AB, the Securities Act and
the
Exchange Act with respect to incorporation by reference.
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.
Pre-Closing
Termination Event: Prior to printing the related Prospectus
Supplement, any of the following occurs:
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(i)
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the
Counterparty shall fail to 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. Such information shall include, at a
minimum:
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(A)
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the
Counterparty’s legal name (and any
d/b/a);
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(B)
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the
organizational form of the
Counterparty;
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(C)
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a
description of the general character of the business of the Counterparty;
or
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(ii)
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the
Counterparty shall fail to take the actions set forth below if
reasonably
requested by the related Depositor for the purpose of compliance
with Item
1115(b) with respect to a
Transaction:
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(A)
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either
(1) authorize the related Depositor to incorporate by reference
the
financial data required by Item 1115(b)(1) or (b)(2) of Regulation
AB (as
specified by the related Depositor to the Counterparty) with respect
to
the Counterparty and any affiliated entities providing derivative
instruments to the SPV (the “Company Financial Information”) or (2)
provide the Company Financial Information, in a form appropriate
for use
in the Prospectus Supplement and in an XXXXX-compatible form (and
in any
event to provide such XXXXX-compatible form if the IRC are not
satisfied);
and
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(B)
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if
applicable, cause its accountants to issue their consent to the
filing or
the incorporation by reference of such financial statements in
the
Registration Statement.
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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. §§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.
Regulation
S-X: 17 C.F.R. §210.1-01, as such may be amended from time to time.
Required
Substitution: Causing 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 Depositors substantially in the form of this Agreement, (ii) has agreed
to
deliver any information, report, certification or accountants’ consent as
required by Item 1115(b)(1) or (b)(2) of Regulation AB and (iii) is approved
by
the Depositor (which approval shall not be unreasonably withheld) and any
rating
agency, if applicable, on terms substantially similar to the Derivative
Agreement.
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(a)
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if
the Counterparty provided Company Financial Information to the
related
Depositor for the Prospectus Supplement and the Counterparty does
not,
within 5 Business Days of the release of any updated financial
data on
Form 6-K or 20-F, (1) either authorize the related Depositor to
incorporate by reference current Company Financial Information
as required
under Item 1115(b) of Regulation AB or provide such information
to the
related Depositor in an XXXXX-compatible form (and in any event
to provide
such XXXXX-compatible form if the IRC are not satisfied), and (2)
if
applicable, cause its accountants to issue their consent to filing
or
incorporation by reference of such financial statements in the
Exchange
Act Reports of the SPV, then the Counterparty shall, at its own
cost, make
a Required Substitution; and
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(b)
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if
the related Depositor requests Company Financial Information from
the
Counterparty, for the purpose of compliance with Item 1115(b) of
Regulation AB following the Closing Date, and the Counterparty
does not
upon five Business Days written notice, (1) either authorize the
related
Depositor to incorporate by reference current Company Financial
Information as required under Item 1115(b) of Regulation AB or
provide
such information to the related Depositor in an XXXXX-compatible
form (and
in any event to provide such XXXXX-compatible form if the IRC are
not
satisfied), (2) if applicable, cause its 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, either
authorize the related Depositor to incorporate by reference current
Company Financial Information as required under Item 1115(b) of
Regulation
AB or provide such information to the related Depositor in an
XXXXX-compatible form (and in any event to provide such XXXXX-compatible
form if the IRC are not satisfied) and if applicable, cause its
accountants to issue their consent to filing or incorporation by
reference
of such financial statements in the Exchange Act Reports of the
SPV, then
the Counterparty shall, at its own cost, make a Required
Substitution.
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(a)
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The
Counterparty represents and warrants to the related Depositor,
as of the
date on which information is first provided to the related Depositor
pursuant to this Agreement that, except as disclosed in writing
the
related Depositor prior to such
date:
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(i)
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The
Counterparty is a foreign private issuer as defined in Rule 2b-4
of the
Exchange Act and is currently subject to the periodic reporting
requirements of Section 13(a) of the Exchange
Act.
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(ii)
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The
Counterparty 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).
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(iii)
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The
reports filed by the Counterparty include (or properly incorporate
by
reference) the financial statements of the
Counterparty.
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(iv)
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The
accountants who certify the financial statements and supporting
schedules
included in the Company Financial Information (if applicable) are
independent registered public accountants as required by the Securities
Act.
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(v)
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If
applicable, (A) either (I) the financial statements included in
the
Company Financial Information present fairly the consolidated financial
position of the Counterparty 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 or (II) if the Company
has
adopted International Financial Reporting Standards and International
Accounting Standards (collectively “IFRS”) for the purpose of preparing
its financial statements, the Company Financial Information present
fairly
the consolidated financial position of the Counterparty 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 IFRS
applied on
a consistent basis; and the supporting schedules included in the
Company
Financial Information present fairly in accordance with IFRS the
information required to be stated therein and such Company Financial
Information has been reconciled with GAAP to the extent required
by
Regulation AB.
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(vi)
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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
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(vii)
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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 respects with the requirements
of Item 1115(b) of Regulation AB (in the case of the Company Financial
Information) 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.
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(viii)
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The
Counterparty is a “Foreign Business” as defined in Regulation
S-X.
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(b)
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If
at any time the representations and warranties set forth in 3(a)(i)
through (iii) are no longer true and correct, the Counterparty
shall
provide notice to the related Depositor, and if any Company Financial
Information is required to be included in the Registration Statement,
or
the Exchange Act Reports of the SPV, will provide to the related
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.
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(c)
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The
Counterparty agrees that the terms of this Agreement 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.
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(d)
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If
the Counterparty has provided Company Information, upon any breach
by the
Counterparty of a representation or warranty pursuant to this Section
3 to
the extent made as of a date subsequent to such closing date, the
Counterparty shall, at its own cost, make a Required
Substitution.
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(a)
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If
permitted by the Exchange Act, the related Depositor will take
the steps
necessary to suspend its obligation to file Exchange Act Reports,
with
respect to the SPV, under Sections 13 and 15(d) of the Exchange
Act.
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(b)
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If
the related Depositor requests Company Financial Information from
the
Counterparty, it agrees to provide to the Counterparty the methodology
and
calculation for its estimate of maximum probable exposure represented
by
the Derivative Agreements.
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Section
5.
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(a)
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The
Counterparty shall indemnify CHL and the related Depositor, each
person
responsible for the preparation, execution or filing of any report
required to be filed with the Commission with respect to such SPV,
or for
execution of a certification pursuant to Rule 13a-14(d) or Rule
15d-14(d)
under the Exchange Act; each broker dealer acting as underwriter,
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); and
the
respective present and former directors, officers, employees and
agents of
each of the foregoing (each, a “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:
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(i)
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(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 this Agreement
by or
on behalf of the Counterparty (collectively, 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;
or
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(ii)
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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, to
the
extent that such breach is not cured by the 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.
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(b)
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Nothing
in this agreement shall be construed to allow the Indemnified Party
to
recover punitive, consequential, incidental, exemplary or special
damages
or lost profits from the indemnifying
party.
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(c)
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(i)
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Any
Pre-Closing Termination Event or any breach by the Counterparty
of a
representation or warranty set forth in Section 3 and made as of
a date
prior to the Closing Date, to the extent that such Pre-Closing
Termination
Event or breach is not cured by the Closing Date (or in the case
of
information needed for purposes of printing the Prospectus Supplement,
the
date of printing of the Prospectus Supplement), shall, except as
provided
in clause (ii) of this paragraph, immediately and automatically,
without
notice or grace period, constitute an Additional Termination Event
(as
defined in the Master Agreement) with the Counterparty as the sole
Affected Party (as defined in the Master Agreement) under the Derivative
Agreement. Following such termination, a termination payment
(if any) shall be payable by the applicable party as determined
by the
application of Section 6(e)(ii) of the Master Agreement, with Market
Quotation and Second Method being the applicable method for determining
the termination payment (notwithstanding anything in the Derivative
Agreement to the contrary).
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(ii)
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If
the Counterparty has failed to make a Required Substitution when
and as
required under Section 2, which continues unremedied for the lesser
of ten
calendar days after the date on which such information, report,
or
accountants’ consent was required to be delivered or 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), or if the Counterparty has failed to make a Required
Substitution as required under Section 3 within the period in which
the
applicable Exchange Act Report for which such information is required
can
be timely filed, then an Additional Termination Event (as defined
in the
Master Agreement) shall have occurred with the Counterparty as
the sole
Affected Party. In the event that an Early Termination Date is
designated in connection with such Additional 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, with Market Quotation and Second
Method
being the applicable method for determining the termination payment
(notwithstanding anything in the Derivative Agreement to the
contrary).
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(iii)
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In
the event that the Counterparty or the SPV has found a replacement
entity
in accordance with a Required Substitution, 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.
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Section
6.
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(e)
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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.
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(k)
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Signatory.
The parties hereto agree that while the signatory to this Agreement
is
Deutsche Bank AG, New York Branch, the New York branch of Deutsche
Bank AG
is not for securities law purposes treated as a separate entity
from
Deutsche Bank Aktiengesellschaft, the Exchange Act registrant and
thus the
Company Financial Information to be provided hereunder will be
that of
Deutsche Bank Aktiengesellschaft.
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CWABS, INC. | ||
By: /s/ Xxxxx Xxxxxx | ||
Name: Xxxxx Xxxxxx | ||
Title: Vice President | ||
CWMBS, INC. | ||
By: /s/ Xxxxx Xxxxxx | ||
Name: Xxxxx Xxxxxx | ||
Title: Vice President | ||
CWALT, INC. | ||
By: /s/ Xxxxx Xxxxxx | ||
Name: Xxxxx Xxxxxx | ||
Title: Vice President | ||
CWHEQ, INC. | ||
By: /s/ Xxxxx Xxxxxx | ||
Name: Xxxxx Xxxxxx | ||
Title: Vice President | ||
COUNTRYWIDE HOME LOANS, INC. | ||
By: /s/ Xxxxx Xxxxxx | ||
Name: Xxxxx Xxxxxx | ||
Title: Vice President |
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DEUTSCHE BANK AG, NEW YORK BRANCH | ||
By: /s/ Xxxxxx Xxxxxxx | ||
Name: Xxxxxx Xxxxxxx | ||
Title: Director | ||
By: /s/ Xxxxxxxx Xxxx | ||
Name: Xxxxxxxx Xxxx | ||
Title: Vice President |
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