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-D, 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 1504281, (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-D, 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
#700963
Ref:
CWHEQ 2007-D
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
xxxxxxxxxx.XX WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement as of the date first above written.
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-D
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
Exhibit
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: 1504281
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-D, 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:
|
January
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
|
|
5
Schedule
A to the Confirmation dated as May 31, 2007
Re:
Reference Number: 1504281
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
|
8.79125
|
|
15-Jul-07
|
15-Aug-07
|
870,359,526.00
|
16.19249
|
|
15-Aug-07
|
15-Sep-07
|
841,695,226.00
|
16.75750
|
|
15-Sep-07
|
15-Oct-07
|
813,974,953.00
|
17.32509
|
|
15-Oct-07
|
15-Nov-07
|
787,167,616.00
|
16.19249
|
|
15-Nov-07
|
15-Dec-07
|
761,243,148.00
|
17.32509
|
|
15-Dec-07
|
15-Jan-08
|
736,172,472.00
|
16.19249
|
|
15-Jan-08
|
15-Feb-08
|
711,927,471.00
|
16.75750
|
|
15-Feb-08
|
15-Mar-08
|
688,480,951.00
|
17.93181
|
|
15-Mar-08
|
15-Apr-08
|
665,806,615.00
|
15.62749
|
|
15-Apr-08
|
15-May-08
|
643,879,033.00
|
17.32509
|
|
15-May-08
|
15-Jun-08
|
622,673,611.00
|
16.19249
|
|
15-Jun-08
|
15-Jul-08
|
602,166,565.00
|
16.82509
|
|
15-Jul-08
|
15-Aug-08
|
582,083,993.00
|
15.70867
|
|
15-Aug-08
|
15-Sep-08
|
562,659,388.00
|
16.27373
|
|
15-Sep-08
|
15-Oct-08
|
543,870,794.00
|
16.82523
|
|
15-Oct-08
|
15-Nov-08
|
525,697,327.00
|
15.70883
|
|
15-Nov-08
|
15-Dec-08
|
508,119,156.00
|
16.82535
|
|
15-Dec-08
|
15-Jan-09
|
491,115,689.00
|
15.70894
|
|
15-Jan-09
|
15-Feb-09
|
474,669,107.00
|
16.27401
|
|
15-Feb-09
|
15-Mar-09
|
458,759,645.00
|
18.04661
|
|
15-Mar-09
|
15-Apr-09
|
443,370,209.00
|
14.57913
|
|
15-Apr-09
|
15-May-09
|
428,486,721.00
|
16.82568
|
|
15-May-09
|
15-Jun-09
|
414,086,442.00
|
15.70929
|
|
15-Jun-09
|
15-Jul-09
|
400,157,573.00
|
16.82583
|
|
15-Jul-09
|
15-Aug-09
|
386,682,114.00
|
15.70945
|
|
15-Aug-09
|
15-Sep-09
|
373,647,694.00
|
16.27455
|
|
15-Sep-09
|
15-Oct-09
|
361,036,924.00
|
16.82610
|
|
15-Oct-09
|
15-Nov-09
|
348,837,148.00
|
15.70973
|
|
15-Nov-09
|
15-Dec-09
|
337,036,512.00
|
16.82629
|
|
15-Dec-09
|
15-Jan-10
|
325,618,421.00
|
15.70994
|
|
15-Jan-10
|
15-Feb-10
|
314,573,794.00
|
16.27506
|
|
15-Feb-10
|
15-Mar-10
|
303,886,518.00
|
18.04770
|
|
15-Mar-10
|
15-Apr-10
|
293,546,545.00
|
14.58027
|
|
15-Apr-10
|
15-May-10
|
283,549,030.00
|
16.82687
|
|
15-May-10
|
15-Jun-10
|
273,869,723.00
|
15.71055
|
|
15-Jun-10
|
15-Jul-10
|
264,506,754.00
|
16.82715
|
|
15-Jul-10
|
15-Aug-10
|
255,444,974.00
|
15.71084
|
|
15-Aug-10
|
15-Sep-10
|
246,679,237.00
|
16.27600
|
|
15-Sep-10
|
15-Oct-10
|
238,194,727.00
|
16.82761
|
|
15-Oct-10
|
15-Nov-10
|
229,984,525.00
|
15.71132
|
|
15-Nov-10
|
15-Dec-10
|
222,042,374.00
|
16.82796
|
|
15-Dec-10
|
15-Jan-11
|
214,353,842.00
|
15.71169
|
|
15-Jan-11
|
15-Feb-11
|
206,916,207.00
|
16.27689
|
|
15-Feb-11
|
15-Mar-11
|
199,715,280.00
|
18.04963
|
|
15-Mar-11
|
15-Apr-11
|
192,745,979.00
|
14.58229
|
|
15-Apr-11
|
15-May-11
|
186,010,454.00
|
16.82899
|
|
15-May-11
|
15-Jun-11
|
179,481,826.00
|
15.71276
|
|
15-Jun-11
|
15-Jul-11
|
173,165,946.00
|
16.82947
|
|
15-Jul-11
|
15-Aug-11
|
167,049,016.00
|
15.71327
|
|
15-Aug-11
|
15-Sep-11
|
161,131,286.00
|
16.27855
|
|
15-Sep-11
|
15-Oct-11
|
155,399,090.00
|
16.83029
|
|
15-Oct-11
|
15-Nov-11
|
149,849,628.00
|
15.71413
|
|
15-Nov-11
|
15-Dec-11
|
144,480,686.00
|
16.83091
|
|
15-Dec-11
|
15-Jan-12
|
139,278,680.00
|
15.71477
|
|
15-Jan-12
|
15-Feb-12
|
134,245,750.00
|
16.28013
|
|
15-Feb-12
|
15-Mar-12
|
129,554,957.00
|
17.42128
|
|
15-Mar-12
|
15-Apr-12
|
125,287,211.00
|
15.15032
|
|
15-Apr-12
|
15-May-12
|
121,160,065.00
|
16.83179
|
|
15-May-12
|
15-Jun-12
|
117,168,885.00
|
15.71533
|
|
15-Jun-12
|
15-Jul-12
|
113,309,193.00
|
16.83179
|
|
15-Jul-12
|
15-Aug-12
|
109,576,654.00
|
15.71532
|
|
15-Aug-12
|
15-Sep-12
|
105,967,081.00
|
16.28033
|
|
15-Sep-12
|
15-Oct-12
|
102,476,421.00
|
16.83178
|
|
15-Oct-12
|
15-Nov-12
|
99,100,757.00
|
15.71532
|
|
15-Nov-12
|
15-Dec-12
|
95,836,299.00
|
16.83178
|
|
15-Dec-12
|
15-Jan-13
|
92,679,384.00
|
15.71532
|
6
Schedule
B to the Confirmation dated as of May 31, 2007
Re:
Reference Number: 1504281
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” will have 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
Agreement will 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 Agreement will 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
Method will apply.
|
7
|
(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 it is a corporation organized
under the laws of the State of
Delaware.
|
|
|
(ii)
|
Party
B represents that it is 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.
|
8
|
(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
|
9
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.
10
|
(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-D, 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-D, 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.
|
|
|
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.
|
11
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-D (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 1504281) 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.
12
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.
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 |
13
