NOVATION AGREEMENT dated as of April 27, 2007 among:
International
Swaps and Derivatives Association, Inc.
dated
as of April 27, 2007 among:
Xxxxxx
Brothers Special Financing Inc. (the “Remaining Party”),
Countrywide
Home Loans, Inc. (the “Transferor”)
AND
The
Bank of New York, not in its individual capacity, but solely as Swap Contract
Administrator (the “Swap Contract Administrator”) for CWABS Asset-Backed
Certificates Trust 2007-BC2, Asset-Backed Certificates, Series 2007-BC2,
pursuant to a Swap Contract Administration Agreement dated as of April 27,
2007,
among the Swap Contract Administrator, The Bank of New York, not in its
individual or corporate capacity but solely as Trustee under the Pooling
and Servicing Agreement referred to below (in such capacity, the “Trustee”), and
the Transferor (the “Swap Contract Administration Agreement”) (the
“Transferee”)
The
Transferor and the Remaining Party have entered into one or more Transactions
(each an “Old Transaction”), each evidenced by a Confirmation
(an “Old Confirmation”) attached hereto as Exhibit I, subject
to a 1992 ISDA Master Agreement (as defined below) dated as of June 6, 1996
(the
“Old Agreement”).
The
Remaining Party and the Transferee have entered into an ISDA Master Agreement
dated as of April 27, 2007 (the “New Agreement”).
With
effect from and including April 27, 2007 (the
“Novation Date”), the Transferor wishes
to transfer by novation to the Transferee, and the Transferee wishes to accept
the transfer by novation of, all the rights, liabilities, duties and obligations
of the Transferor under and in respect of each Old Transaction, with the effect
that the Remaining Party and the Transferee enter into a new transaction (each
a
“New Transaction”) between them having terms identical to those
of each Old Transaction, as more particularly described below, but with the
modifications provided for herein.
The
Remaining Party wishes to accept the Transferee as its sole counterparty with
respect to the New Transactions.
The
Transferor and the Remaining Party wish to have released and discharged, as
a
result and to the extent of the transfer described above, their respective
obligations under and in respect of the Old Transactions.
Accordingly,
the parties agree as follows: ---
1. Definitions.
Terms
defined in the ISDA Master Agreement (Multicurrency-Cross Border) as published
in 1992 by the International Swaps and Derivatives Association, Inc., (the
“1992
ISDA Master Agreement”)
are
used herein as so defined, unless otherwise provided herein.
2. Transfer,
Release, Discharge and Undertakings.
With
effect from and including the Novation Date and in consideration of the mutual
representations, warranties and covenants contained in this Novation Agreement
and other good and valuable consideration (the receipt and sufficiency of which
are hereby acknowledged by each of the parties):
(a)
the
Remaining Party and the Transferor are each released and discharged from further
obligations to each other with respect to each Old Transaction and their
respective rights against each other thereunder are cancelled, provided that
such release and discharge shall not affect any rights, liabilities or
obligations of the Remaining Party or the Transferor with respect to payments
or
other obligations due and payable or due to be performed on or prior to the
Novation Date, and all such payments and obligations shall be paid or performed
by the Remaining Party or the Transferor in accordance with the terms of the
Old
Transactions; provided further, for the avoidance of doubt, the Transferee
shall
not be liable with respect to payments or other obligations due and payable
or
due to be performed under the Old Transactions on or prior to the Novation
Date;
(b)
in
respect of each New Transaction, the Transferee and the Remaining Party each
undertakes liabilities and obligations towards the other and acquires rights
against each other identical in their terms to each corresponding Old
Transaction (and, for the avoidance of doubt, as if the Transferee were the
Transferor and with the Remaining Party remaining the Remaining Party, save
for
any rights, liabilities or obligations of the Remaining Party or the Transferor
with respect to payments or other obligations due and payable or due to be
performed on or prior to the Novation Date);
(c)
each
New
Transaction shall be governed by and form part of the New Agreement and the
relevant Old Confirmation (which, in conjunction and as deemed modified to
be
consistent with this Novation Agreement,, shall be deemed to be a Confirmation
between the Remaining Party and the Transferee); and
(d)
it
is
expressly understood and agreed by the Assignor and Remaining Party as follows:
(a) The Bank of New York (“BNY”) is entering into this Novation Agreement solely
in its capacity as Swap Contract Administrator under the Swap Contract
Administration Agreement; and (b) in no case shall BNY (or any person acting
as
successor Swap Contract Administrator under the Swap 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, and (c) The Transferor agrees
to indemnify and hold harmless the Swap Contract Administrator with respect
to
any and all claims under the Old Transaction.
3. Representations
and Warranties.
(a)
On
the
date of this Novation Agreement and on the Novation Date:
(i)
Each
of
the parties makes to each of the other parties those representations and
warranties set forth in Section 3(a) of the 1992 ISDA Master Agreement with
references in such Section to “this Agreement” or “any Credit Support Document”
being deemed references to this Novation Agreement alone.
(ii)
The
Remaining Party and the Transferor each makes to the other and the Remaining
Party and the Transferee each makes to the other the representation set forth
in
Section 3(b) of the 1992 ISDA Master Agreement, in the former case with respect
to the Old Agreement, and in the latter case with respect to the New Agreement
and taking into account the parties entering into and performing their
obligations under this Novation Agreement.
(iii)
Each
of
the Transferor and the Remaining Party represents and warrants to each other
and
to the Transferee that:
(A) as
of the
date hereof, no other party has any interest or obligation in or under the
Old
Agreement or in respect of any Old Transaction (whether by way of security
or
otherwise) ; and
(B) as
of the
Novation Date, all obligations of the Transferor and the Remaining Party under
each Old Transaction required to be performed on or before the Novation Date
have been fulfilled.
(b)
Subject
to its obligations under the Swap Contract Administration Agreement, the
Transferor makes no representation or warranty and does not assume any
responsibility with respect to the legality, validity, effectiveness, adequacy
or enforceability of any New Transaction or the New Agreement or any documents
relating thereto and assumes no responsibility for the condition, financial
or
otherwise, of the Remaining Party, the Transferee or any other person or for
the
performance and observance by the Remaining Party, the Transferee or any other
person of any of its obligations under any New Transaction or the New Agreement
or any document relating thereto and any and all such conditions and warranties,
whether express or implied by law or otherwise, are hereby
excluded.
4. Counterparts.
This
Novation Agreement (and each amendment, modification and waiver in respect
of
it) may be executed and delivered in counterparts (including by facsimile
transmission), each of which
will be deemed an original.
5. Costs
and Expenses.
The
parties will each pay their own costs and expenses (including legal fees)
incurred in connection with this Novation Agreement and as a result of the
negotiation, preparation and execution of this Novation Agreement.
6. Amendments.
No
amendment, modification or waiver in respect of this Novation Agreement will
be
effective unless in writing (including a writing evidenced by a facsimile
transmission) and executed by each of the parties or confirmed by an exchange
of
telexes or electronic messages on an electronic messaging system.
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7.
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(a)
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Governing
Law.
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This
Novation Agreement will be governed by and construed in accordance with the
laws
of the State of New York without reference to the conflict of laws provisions
thereof other than New York General Obligations Laws Sections 5-1401 and
5-1402.
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(b)
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Jurisdiction.
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The
terms
of Section 13(b) of the 1992 ISDA Master Agreement shall apply to this Novation
Agreement with references in such Section to “this Agreement” being deemed
references to this Novation Agreement alone.
8. Notices.
For
the
purposes of this Novation Agreement and Section 12(a) of the New Agreement,
the
addresses for notices or communications are as follows: (i) in the case of
the
Transferor, Countrywide Home Loans, Inc., 0000 Xxxx Xxxxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxx Xxx, with a copy to the same address,
Attention: Legal Department,
or such
other address as may be hereafter furnished in writing to the Transferee and
the
Remaining Party; (ii) in the case of The Transferee, The Bank of New York,
000
Xxxxxxx Xxxxxx 0X, XX, XX 00000, Attn: Xxxxxxx Xxxxxx Fax 000-000-0000, or
such
other address as may be hereafter furnished in writing to the Transferor and
the
Remaining Party; and (iii) in the case of the Remaining Party, as specified
in
the Old Confirmation and, for purposes of Sections 5 and 6 of the New Agreement,
to the following address:
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Address:
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Xxxxxx
Brothers Special Financing Inc.
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c/x
Xxxxxx Brothers Inc.
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Transaction
Management Division
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000
Xxxxxxx Xxxxxx
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Xxx
Xxxx, XX 00000
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Attention:
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Documentation
Manager
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Tel
No.
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(000)
000-0000
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Fax
No.
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(000)
000-0000
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or
such
other address as may be hereafter furnished in writing to the Transferor and
The
Transferee.
9. Payments.
All
payments remitted by the Remaining Party under each New Transaction shall be
made by wire transfer according to the following instructions:
The
Bank
of New York
ABA
000000000
G/L
Account 111-565
For
Further Credit to TAS #540840
10.
Provisions Deemed Incorporated into the New Agreement.
For
the
purpose of documenting the New Transaction between the Remaining Party and
the
Transferee, the Old Confirmation shall be amended by inserting the following
provisions therein:
1) Optional
Termination.
Upon
the occurrence of an Optional Termination pursuant to Section 9.01 (the
“Optional Termination”) of the Pooling and Servicing Agreement dated as of April
1, 2007, among CWABS Inc., as depositor, Countrywide Home Loans Inc., as a
seller, Park Sienna LLC, as a seller, Park Granada LLC, as a seller, Countrywide
Home Loans Servicing LP, as master servicer, and The Bank of New York, as
Trustee (the “Pooling and Servicing Agreement”):
(a)
Transferee hereby assigns all of its rights and delegates all of its liabilities
and obligations to Countrywide Home Loans, Inc., and Countrywide Home Loans,
Inc. hereby assumes all of Transferee’s rights, liabilities, and obligations,
under the New Transaction and the New Confirmation arising on or after the
final
Distribution Date under the Pooling and Servicing Agreement (such date, the
“Optional Termination Payment Date”; such transaction and confirmation,
collectively, the “Assigned Transaction”). The Assigned Transaction shall be
governed by and form part of an agreement in the form of a 1992 ISDA Master
Agreement between Remaining Party and Countrywide Home Loans, Inc., dated as
of
June 6, 1996, as amended and supplemented from time to time. Remaining Party
hereby consents to the assignment and delegation by Transferee of all of its
rights, liabilities, and obligations under the Assigned Transaction to
Countrywide Home Loans, Inc. pursuant to this Novation Agreement;
(b)
Remaining Party and Transferee hereby release one another from all liabilities
and obligations owed under and in respect of the Assigned Transaction, and
Transferee hereby terminates its rights under and in respect of the Assigned
Transaction;
(c)
Countrywide Home Loans, Inc. and Remaining Party hereby agree that the New
Confirmation shall be amended as follows:
(1)
the definition of Notional Amount in the New Confirmation shall be deleted
in
its entirety and replaced with the following:
“With
respect to each remaining Calculation Period, the amount set forth for such
period in Appendix A attached hereto multiplied by a factor, determined at
the
time of the Optional Termination, equal to the quotient of (i) the Notional
Amount immediately prior to the Optional Termination Payment Date (which,
for the avoidance of doubt, was an amount equal to the lesser of (a) the amount
set forth for such Calculation Period in Appendix A attached hereto and (b)
the
aggregate Certificate Principal Balance of the Referenced Assets immediately
prior to the Optional Termination Payment Date) divided by (ii) the amount
set
forth for such Calculation Period in Appendix A attached hereto.”;
and
(d)
Remaining Party hereby agrees that Countrywide Home Loans, Inc. may do one
of
the following with the Assigned Transaction:
(i)
retain such Assigned Transaction;
(ii)
further
assign all of its rights and delegate all of its liabilities and obligations
under the Assigned Transaction to a third party, such assignment and delegation
to be effective upon the receipt of written consent thereto from Remaining
Party
(in its sole and absolute discretion); or
(iii)
terminate the Assigned Transaction by giving three Business Days’ prior written
notice to Remaining Party (the “Optional Termination Date”). On such Optional
Termination Date, if any, a termination payment (if any) shall be payable by
Countrywide Home Loans, Inc. or Remaining Party, as applicable, as determined
by
the Calculation Agent by the application of Section 6(e)(ii) of the Agreement,
with Market Quotation and Second Method being the applicable method for
determining the termination payment. The exercise of the right to terminate
under this provision shall not be an Event of Default under any of the other
Transactions that are part of the Old Agreement or the New Agreement. For
purposes of the Optional Termination Date, Countrywide Home Loans, Inc. shall
be
the sole Affected Party.
If
Countrywide Home Loans, Inc. exercises its right to retain the Assigned
Transaction pursuant to Section 10(d)(i) of this Novation Agreement, then Xxxxxx
Brothers Special Financing Inc. has the right to assign all of its rights and
delegate all of its liabilities and obligations under the Assigned Transaction
to a subsidiary of Xxxxxx Brothers Special Financing Inc.
IN
WITNESS WHEREOF the parties have executed this Novation Agreement on the
respective dates specified below with effect from and including the Novation
Date.
| Xxxxxx Brothers Special Financing Inc. | Countrywide Home Loans, Inc. | |||||||||||||
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By:
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By:
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Name:
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Name:
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Title:
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Title:
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| Date: | April 27, 2007 | Date: | April 27, 2007 | |||||||||||
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The
Bank of New York, not in its individual capacity, but solely as
Swap
Contract Administrator for CWABS Asset-Backed Certificates Trust
2007-BC2,
Asset-Backed Certificates, Series 2007-BC2
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By:
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Name:
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Title:
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| Date: | April 27, 2007 | ||||||||||||
EXHIBIT
I
Old
Confirmation
Risk
ID: 1503413L / Effort ID: N1346418 / Global Deal ID: 3020923
