SWAP CONTRACT ADMINISTRATION AGREEMENT
This
SWAP
CONTRACT ADMINISTRATION AGREEMENT, dated as of April 27, 2007 (this
“Agreement”),
among
THE BANK OF NEW YORK (“BNY”),
as
Swap Contract Administrator (in such capacity, the “Swap
Contract Administrator”)
and
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
COUNTRYWIDE HOME LOANS, INC. (“CHL”).
WHEREAS,
CHL is a party to an interest rate swap agreement between CHL and Xxxxxx
Brothers Special Financing Inc.
(the
“Counterparty”),
with
a Trade Date of April 27, 2007 and a reference
number of Global IDs: 1497045L, N1335414, 3005980
(the
“Swap
Contract”),
a
copy of which is attached to this Agreement at Exhibit A;
WHEREAS,
CHL is conveying certain mortgage loans and other related assets to a trust
fund
(the “Trust
Fund”)
created pursuant to a Pooling and Servicing Agreement, dated as of April 1,
2007
(the “Pooling
and Servicing Agreement”),
among
CWABS Inc., as depositor, CHL, as a seller, Park Sienna LLC, as a seller, Park
Granada LLC, as a seller, Park Monaco Inc., as seller, Countrywide Home Loans
Servicing LP, as master servicer (the “Master
Servicer”),
and
the Trustee, with respect to the CWABS Asset-Backed Certificates, Series
2007-BC2;
WHEREAS,
simultaneously with the execution and delivery of this Agreement, CHL is
assigning all of its rights, and delegating all of its duties and obligations
(other than its obligation to pay the Upfront Amount (as defined in the Swap
Contract)), under the Swap Contract to the Swap Contract Administrator, pursuant
to the Novation Agreement, dated as of the date hereof (the “Novation
Agreement”),
among
CHL, as transferor, the Swap Contract Administrator, as transferee, and the
Counterparty, as remaining party, a copy of which is attached to this Agreement
as Exhibit B;
WHEREAS,
the parties hereto desire that the Trustee make remittances to the Swap Contract
Administrator as contemplated by and to the extent provided in the Pooling
and
Servicing Agreement to cover payments due to the Counterparty under the Swap
Contract;
WHEREAS,
CHL desires that the Net Payments (as defined below) payable by the Counterparty
on the Swap Contract be distributed to the Trustee under the Pooling and
Servicing Agreement to be applied for the purposes specified in the Pooling
and
Servicing Agreement and that the Excess Payments (as defined below) on the
Swap
Contract be distributed to CHL;
WHEREAS,
CHL and the Trustee desire to appoint the Swap Contract Administrator, and
the
Swap Contract Administrator desires to accept such appointment, to distribute
funds received under the Swap Contract to the Trustee and to CHL as provided
in
this Agreement, and, in the case of a NIM Issuance, to distribute Excess
Payments in accordance with the related Swap Excess Assignment Agreement (each
as defined below).
NOW,
THEREFORE, in consideration of the mutual covenants contained in this Agreement,
and for other good and valuable consideration, the receipt and adequacy of
which
are hereby acknowledged, the parties agree as follows:
1. Definitions.
Capitalized terms used but not otherwise defined in this Agreement shall have
the respective meanings assigned thereto in the Pooling and Servicing Agreement
or the Swap Contract.
Benefited
Certificates:
The
Class A Certificates and the Subordinate Certificates.
Excess
Payment:
For any
Distribution Date on or prior to the Swap Contract Termination Date and as
to
which the Swap Contract or a replacement swap contract is in effect, an amount
equal to the excess, if any, of (i) the Net Swap Payment (as defined in the
Pooling and Servicing Agreement) received by the Swap Contract Administrator
from the Counterparty with respect to such Distribution Date over (ii) the
Net
Payment for such Distribution Date. For any Distribution Date on or prior to
the
Swap Contract Termination Date but only if neither the Swap Contract nor a
replacement swap contract is in effect, zero. For any Distribution Date after
the Swap Contract Termination Date, an amount equal to all remaining funds
on
deposit in the Swap Administration Account.
Indenture
Trustee:
With
respect to a NIM Issuance (if any), the indenture trustee under the indenture
pursuant to which the notes related to such NIM Issuance are
issued.
ISDA
Credit Support Annex:
The
credit support annex between the Swap Contract Administrator and the
Counterparty dated as of April 27, 2007, a copy of which is attached to this
Agreement as Exhibit C.
Net
Payment:
With
respect to any Distribution Date on or prior to the Swap Contract Termination
Date, an amount equal to the sum of (i) any Current Interest and Interest Carry
Forward Amounts in respect of the Benefited Certificates, (ii) any Net Rate
Carryover in respect of the Benefited Certificates, (iii) any Unpaid Realized
Loss Amounts in respect of the Benefited Certificates and (iv) any
Overcollateralization Deficiency Amount, in each case remaining unpaid (or
in
the case of Overcollateralization Deficiency Amount, remaining) following the
distribution to the Benefited Certificates of Excess Cashflow pursuant to
Section 4.04(c) of the Pooling and Servicing Agreement. With respect to any
Distribution Date after the Swap Contract Termination Date, zero.
NIM
Issuance:
An
issuance by a NIM Trust, on or after the date hereof, of asset-backed notes
secured by the Class C Certificates and/or Class P Certificates.
NIM
Trust:
A
Delaware statutory trust or other special-purpose entity that is the issuer
of
the securities issued in connection with a NIM Issuance (if any).
Responsible
Officer:
When
used with respect to the Swap Contract Administrator, any Vice President, any
Assistant Vice President, the Secretary, any Assistant Secretary, any Trust
Officer or any other officer of the Swap Contract Administrator customarily
performing functions similar to those performed by any of the above designated
officers and also to whom, with respect to a particular matter, such matter
is
referred because of such officer’s knowledge of and familiarity with the
particular subject.
Swap
Administration Account:
The
separate account created and maintained by the Swap Contract Administrator
pursuant to Section 3 with a depository institution in the name of the Swap
Contract Administrator for the benefit of the Counterparty, CHL and the Trustee
on behalf of the Holders of the Benefited Certificates and designated “The Bank
of New York for Countrywide Home Loans, Inc., Xxxxxx Brothers Special Financing
Inc. and certain registered Holders of CWABS, Inc., Asset-Backed Certificates,
Series 2007-BC2”. Funds in the Swap Administration Account shall be held for the
Counterparty, CHL and the Trustee on behalf of the Holders of the Benefited
Certificates as set forth in this Agreement.
Swap
Collateral Account:
The
separate account created and maintained by the Swap Contract Administrator
pursuant to Section 5 with a depository institution in the name of the Swap
Contract Administrator for the benefit of the Counterparty, CHL and the Trustee
on behalf of the Holders of the Benefited Certificates and designated “The Bank
of New York for Countrywide Home Loans, Inc., Xxxxxx Brothers Special Financing
Inc. and certain registered Holders of CWABS, Inc., Asset-Backed Certificates,
Series 2007-BC2”. Funds in the Swap Collateral Account shall be held for the
Counterparty, CHL and the Trustee on behalf of the Holders of the Benefited
Certificates as set forth in this Agreement.
Swap
Excess Assignment Agreement:
With
respect to a NIM Issuance (if any), an agreement executed on or after the date
hereof by CHL, the related NIM Trust and the Swap Contract Administrator (in
form and substance reasonably satisfactory to the Swap Contract Administrator),
pursuant to which rights to receive certain portions of Excess Payments shall
be
assigned to such NIM Trust and pursuant to which the Swap Contract Administrator
shall agree to distribute Excess Payments to the related Indenture Trustee
and
CHL (in accordance with the terms of such agreement).
2. Appointment
of Swap Contract Administrator.
CHL
and
the Trustee hereby appoint BNY to serve as Swap Contract Administrator pursuant
to this Agreement and pursuant to the related Swap Excess Assignment Agreement
(if any). The Swap Contract Administrator accepts such appointment, acknowledges
the transfer and assignment to it of CHL’s rights and obligations under the Swap
Contract pursuant to the Novation Agreement and agrees to execute as Swap
Contract Administrator the ISDA Credit Support Annex with the Counterparty
and
perform the obligations of the Secured Party as defined under the ISDA Credit
Support Annex. The Swap Contract Administrator agrees to exercise the rights
referred to above for the benefit of CHL, the Trustee and the Counterparty
and
to perform the duties set forth in this Agreement and the ISDA Credit Support
Annex. In the event of a NIM Issuance, the Swap Contract Administrator further
agrees to perform the duties set forth in the related Swap Excess Assignment
Agreement for the benefit of CHL, the related NIM Trust and the related
Indenture Trustee.
3. Receipt
of Funds; Swap Administration Account.
The
Swap
Contract Administrator hereby agrees to receive (i) on behalf of CHL and the
Trustee, all amounts paid by the Counterparty under the Swap Contract and (ii)
on behalf of the Counterparty, all amounts remitted by the Trustee pursuant
to
the Pooling and Servicing Agreement for payment to the Counterparty. The Swap
Contract Administrator shall establish and maintain a Swap Administration
Account into which the Swap Contract Administrator shall deposit or cause to
be
deposited on the Business Day of receipt, (x) all amounts remitted by the
Trustee for payment to the Counterparty pursuant to the Swap Contract and (y)
all amounts payable by the Counterparty under the Swap Contract. All funds
deposited in the Swap Administration Account shall be held for the benefit
of
the Counterparty, CHL and the Trustee on behalf of the Holders of the Benefited
Certificates until withdrawn in accordance with this Section 3. The Swap
Administration Account shall be an “Eligible Account” as defined in the Pooling
and Servicing Agreement.
Funds
in
the Swap Administration Account shall remain uninvested.
The
Swap
Contract Administrator shall give at least 30 days’ advance notice to the
Counterparty, CHL and the Trustee of any proposed change of location of the
Swap
Administration Account prior to any change thereof.
4. Calculations;
Distribution of Payments; Delivery of Notices.
The
Swap
Contract Administrator hereby agrees to make payments based on the information
provided by the Trustee and the Counterparty, and the Swap Contract
Administrator shall, absent manifest error, be entitled to rely on information
provided by the Trustee and the Counterparty.
On
the
Business Day of receipt of any payment from the Counterparty, the Swap Contract
Administrator shall withdraw the amount of such payment from the Swap
Administration Account and distribute such amounts sequentially, as
follows:
| (a) |
first,
to the Trustee for deposit into the Swap Account, the applicable Net
Payment; and
|
| (b) |
second,
to CHL, the applicable Excess Payment, in accordance with the following
wiring instructions:
|
[WIRING
INSTRUCTIONS TO COME]
On
the
Business Day of receipt of any payment from the Trustee for payment to the
Counterparty, the Swap Contract Administrator shall withdraw the amount of
such
payment from the Swap Administration Account and distribute such amounts to
the
Counterparty in accordance with the wiring instructions specified in the Swap
Contract.
The
Swap
Contract Administrator shall prepare and deliver any notices required to be
delivered under the Swap Contract.
On
the
Business Day of receipt of any notices, information or reports received by
the
Swap Contract Administrator from the Counterparty, the Swap Contract
Administrator shall provide the same to the Trustee, including without
limitation information regarding any Net Swap Payment or Swap Termination
Payment that will be payable by the Swap Contract Administrator to the
Counterparty with respect to the next Distribution Date.
Upon
the
Swap Contract Administrator obtaining actual knowledge of an Event of Default
(as defined in the Swap Contract), Termination Event (as defined in the Swap
Contract) or Additional Termination Event (as defined in the Swap Contract)
for
which the Swap Contract Administrator has the right to designate an Early
Termination Date (as defined in the Swap Contract), the Swap Contract
Administrator notify the Trustee and CHL.
5. Control
Rights; Credit Support Annex; Replacement Swap Contract.
The
Trustee shall have the right to direct the Swap Contract Administrator with
respect to the exercise of any right under the Swap Contract (such as the right
to designate an Early Termination Date following an Event of Default (each
such
term as defined in the Swap Contract)).
The
Swap
Contract Administrator is hereby directed to perform the obligations of the
Custodian as defined under the Swap Credit Support Annex (the “Swap Custodian”).
On
or
before the Closing Date, the Swap Custodian shall establish a Swap Collateral
Account (the “Swap Collateral Account”). The Swap Collateral Account shall be
held in the name of the Swap Custodian in trust for the benefit of the Holders
of Asset-Backed Certificates, Series 2007-BC2. The Swap Collateral Account
must
be an Eligible Account and shall be entitled “CWABS Asset-Backed Certificates
Trust 2007-BC2, Asset-Backed Certificates, Series 2007-BC2, Swap Collateral
Account, Trustee, as Swap Custodian for the benefit of holders of Asset-Backed
Certificates, Series 2007-BC2.”
The
Swap
Custodian shall credit to Swap Collateral Account all collateral (whether in
the
form of cash or securities) posted by the Swap Counterparty to secure the
obligations of the Swap Counterparty in accordance with the terms of the Swap
Contract. Except for investment earnings, the Swap Counterparty shall not have
any legal, equitable or beneficial interest in the Swap Collateral Account
other
than in accordance with this Agreement, the Swap Contract and applicable law.
The Swap Custodian shall maintain and apply all collateral and earnings thereon
on deposit in the Swap Collateral Account in accordance with Swap Credit Support
Annex.
Cash
collateral posted by the Swap Counterparty in accordance with the Swap Credit
Support Annex shall be invested at the direction of the Swap Counterparty in
Permitted Investments in accordance with the requirements of the Swap Credit
Support Annex. All amounts earned on amounts on deposit in the Swap Collateral
Account (whether cash collateral or securities) shall be for the account of
and
taxable to the Swap Counterparty.
Upon
the
occurrence of an Event of Default or Specified Condition (each as defined in
the
Swap Contract) with respect to the Swap Counterparty or upon occurrence or
designation of an Early Termination Date (as defined in the Swap Contract)
as a
result of any such Event of Default or Specified Condition with respect to
the
Swap Counterparty, and, in either such case, unless the Swap Counterparty has
paid in full all of its Obligations (as defined in the Swap Credit Support
Annex) that are then due, then any collateral posted by the Swap Counterparty
in
accordance with the Swap Credit Support Annex shall be applied to the payment
of
any Obligations due to Party B (as defined in the Swap Contract) in accordance
with the Swap Credit Support Annex. Any excess amounts held in such Swap
Collateral Account after payment of all amounts owing to Party B under the
Swap
Contract shall be withdrawn from the Swap Collateral Account and paid to the
Swap Counterparty in accordance with the Swap Credit Support Annex.
In
the
event that the Swap Contract is terminated, CHL shall assist the Swap Contract
Administrator in procuring a replacement swap contract with terms approximating
those of the original Swap Contract, and the Swap Contract Administrator shall
enter into a replacement swap contract procured by CHL and continue to serve
as
Swap Contract Administrator pursuant to the terms hereof. Any Swap Termination
Payment received from the Counterparty shall be used to pay any upfront amount
required under any replacement swap contract, and any excess shall be
distributed to CHL. In the event that a replacement swap contract cannot be
procured, any Swap Termination Payment received from the Counterparty in respect
of the termination of the original Swap Contract shall be held in the Swap
Administration Account and distributed as provided in Section 4. In the event
that a replacement swap is procured and the replacement counterparty pays an
upfront amount to the Swap Contract Administrator in connection with the
execution of the replacement swap contract, then (i) if that upfront amount
is
not received prior to the Distribution Date on which any Swap Termination
Payment was due to the Counterparty under the original Swap Contract, that
upfront amount shall be held in the Swap Administration Account and distributed
as provided in Section 4, and (ii) if that upfront amount is received prior
to
the Distribution Date on which any Swap Termination Payment is due to the
Counterparty under the original Swap Contract, the Swap Contract Administrator
shall remit to the Trustee, to be included in Interest Funds for Loan Group
1
and Loan Group 2, the portion of such upfront amount equal to the lesser of
(x)
such upfront amount and (y) the amount of the Swap Termination Payment due
to
the Counterparty under the Original Swap Contract, to be allocated between
Loan
Group 1 and Loan Group 2 pro rata based on their respective Interest Funds
for
that Distribution Date. Any upfront amount paid by a replacement counterparty
that is not remitted by the Swap Contract Administrator to the Trustee pursuant
to clause (ii) of the preceding sentence shall be distributed to
CHL.
6. Monitoring
of Significance Percentage.
With
respect to each Distribution Date, the Swap Contract Administrator shall
calculate the “significance percentage” (as defined in Item 1115 of Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R. §§
229.1100-229.1123) of the Swap Contract based on the aggregate Certificate
Principal Balance of the Benefited Certificates for such Distribution Date
(after all distributions to be made thereon on such Distribution Date) and
based
on the methodology provided in writing by or on behalf of CHL no later than
the
fifth Business Day preceding such Distribution Date. On each Distribution Date,
the Swap Contract Administrator shall provide to CHL a written report (which
written report may include similar information with respect to other derivative
instruments relating to securitization transactions sponsored by CHL) specifying
the “significance percentage” of the Swap Contract for that Distribution Date.
If the “significance percentage” of the Swap Contract exceeds 7.0% with respect
to any Distribution Date, the Swap Contract Administrator shall make a separate
notation thereof in the written report described in the preceding sentence.
Such
written report may contain such assumptions and disclaimers as are deemed
necessary and appropriate by the Swap Contract Administrator.
7. Representations
and Warranties of the Swap Contract Administrator.
The
Swap Contract Administrator represents and warrants as follows:
| (a) |
BNY
is duly organized and validly existing as a banking corporation under
the
laws of the State of New York and has all requisite power and authority
to
execute and deliver this Agreement and to perform its obligations as
Swap
Contract Administrator under this
Agreement.
|
| (b) |
The
execution, delivery and performance of this Agreement by BNY as Swap
Contract Administrator has been duly authorized by
BNY.
|
| (c) |
This
Agreement has been duly executed and delivered by BNY as Swap Contract
Administrator and is enforceable against BNY in accordance with its
terms,
except as enforceability may be affected by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws
relating to or affecting creditors’ rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law).
|
| (d) |
The
execution, delivery and performance of this Agreement by BNY as Swap
Contract Administrator will not result in a breach of the organizational
documents of BNY and will not violate any applicable law, rule or
regulation of the United States or the State of New
York.
|
8. Certain
Matters Concerning the Swap Contract Administrator.
| (a) |
The
Swap Contract Administrator shall undertake to perform such duties
and
only such duties as are specifically set forth in this
Agreement.
|
| (b) |
No
provision of this Agreement shall be construed to relieve the Swap
Contract Administrator from liability for its own grossly negligent
action, its own gross negligent failure to act or its own misconduct,
its
grossly negligent failure to perform its obligations in compliance
with
this Agreement, or any liability that would be imposed by reason of
its
willful misfeasance or bad faith; provided
that:
|
| (i) |
the
duties and obligations of the Swap Contract Administrator shall be
determined solely by the express provisions of this Agreement, the
Swap
Contract Administrator shall not be liable, individually or as Swap
Contract Administrator, except for the performance of such duties and
obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against
the
Swap Contract Administrator and the Swap Contract Administrator may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or opinions
furnished to the Swap Contract Administrator and conforming to the
requirements of this Agreement that it reasonably believed in good
faith
to be genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
|
| (ii) |
the
Swap Contract Administrator shall not be liable, individually or as
Swap
Contract Administrator, for an error of judgment made in good faith
by a
Responsible Officer or Responsible Officers of the Swap Contract
Administrator, unless the Swap Contract Administrator was grossly
negligent or acted in bad faith or with willful misfeasance;
and
|
| (iii) |
the
Swap Contract Administrator shall not be liable, individually or as
Swap
Contract Administrator, with respect to any action taken, suffered
or
omitted to be taken by it in good faith in accordance with the direction
of the Trustee or CHL, as applicable, or exercising any power conferred
upon the Swap Contract Administrator under this
Agreement.
|
| (c) |
Except
as otherwise provided in Sections 8(a) and
8(b):
|
| (i) |
the
Swap Contract Administrator may request and rely upon and shall be
protected in acting or refraining from acting upon any resolution,
officer’s certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or
parties;
|
| (ii) |
the
Swap Contract Administrator may consult with counsel and any opinion
of
counsel shall be full and complete authorization and protection in
respect
of any action taken or suffered or omitted by it hereunder in good
faith
and in accordance with such opinion of
counsel;
|
| (iii) |
the
Swap Contract Administrator shall not be liable, individually or as
Swap
Contract Administrator, for any action taken, suffered or omitted by
it in
good faith and believed by it to be authorized or within the discretion
or
rights or powers conferred upon it by this
Agreement;
|
| (iv) |
the
Swap Contract Administrator shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document, unless requested in writing
so
to do by the Counterparty, CHL or the Trustee; provided, however, that
if
the payment within a reasonable time to the Swap Contract Administrator
of
the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Swap Contract
Administrator not reasonably assured to the Swap Contract Administrator
by
the Counterparty, CHL and/or the Trustee, the Swap Contract Administrator
may require reasonable indemnity against such expense, or liability
from
the Counterparty, CHL and/or the Trustee, as the case may be, as a
condition to taking any such action;
|
| (v) |
the
Swap Contract Administrator shall not be required to expend its own
funds
or otherwise incur any financial liability in the performance of any
of
its duties hereunder if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such liability
is not assured to it; and
|
| (vi) |
the
Swap Contract Administrator shall not be liable, individually or as
Swap
Contract Administrator, with respect to or in connection with errors
or
omissions contained in the report to be provided pursuant to Section
6
hereof, to the extent such errors or omissions are the result of
inaccuracies in the methodology or other information provided to the
Swap
Contract Administrator by CHL.
|
| (d) |
CHL
covenants and agrees to pay or reimburse the Swap Contract Administrator,
upon its request, for all reasonable expenses and disbursements incurred
or made by the Swap Contract Administrator in accordance with any of
the
provisions of this Agreement except any such expense or disbursement
as
may arise from its negligence, bad faith or willful misconduct. The
Swap
Contract Administrator and any director, officer, employee or agent
of the
Swap Contract Administrator shall be indemnified by CHL and held harmless
against any loss, liability or expense incurred in connection with
any
legal action relating to this Agreement, the Swap Contract or the Novation
Agreement, or in connection with the performance of any of the Swap
Contract Administrator’s duties hereunder or thereunder, other than any
loss, liability or expense incurred by reason of willful misfeasance,
bad
faith or negligence in the performance of any of the Swap Contract
Administrator’s duties hereunder or thereunder. Such indemnity shall
survive the termination of this Agreement or the resignation of the
Swap
Contract Administrator hereunder and under the Swap Contract and the
Novation Agreement. Notwithstanding anything to the contrary in this
Section 8(d), any expenses, disbursements, losses or liabilities of
the
Swap Contract Administrator or any director, officer, employee or agent
thereof that are made or incurred as a result of any request, order
or
direction of any NIM Insurer or any of the Certificateholders made
to the
Trustee as contemplated by Section 8.02(a)(9) of the Pooling and Servicing
Agreement and consequently made to the Swap Contract Administrator
by the
Trustee shall be payable by the Trustee out of the security or indemnity
provided by any NIM Insurer or such Certificateholders pursuant to
Section
8.02(a)(9) of the Pooling and Servicing
Agreement.
|
| (e) |
Upon
the resignation of BNY as Trustee in accordance with the Pooling and
Servicing Agreement, (i) BNY shall resign and be discharged from its
duties as Swap Contract Administrator hereunder and (ii) the Person
that
succeeds BNY as Trustee shall be appointed as successor Swap Contract
Administrator hereunder upon its execution, acknowledgement and delivery
of the instrument accepting such appointment in accordance with Section
8.08 of the Pooling and Servicing Agreement, whereupon the duties of
the
Swap Contract Administrator hereunder shall pass to such Person. In
addition, upon the appointment of a successor Trustee under the Pooling
and Servicing Agreement, such successor Trustee shall succeed to the
rights of the Trustee hereunder.
|
| (f) |
In
the event of a NIM Issuance, nothing in this Section 8 shall limit
or
otherwise modify or affect the rights, duties or obligations of the
Swap
Contract Administrator under the related Swap Excess Assignment
Agreement.
|
9. Miscellaneous.
| (a) |
This
Agreement shall be governed by and construed in accordance with the
laws
of the State of New York.
|
| (b) |
Each
of BNY and CHL hereby irrevocably waives, to the fullest extent permitted
by applicable law, any and all right to trial by jury in any legal
proceedings arising out of or relating to this
Agreement.
|
| (c) |
The
Counterparty shall be an express third party beneficiary of this Agreement
for the purpose of enforcing the provisions hereof to the extent of
the
Counterparty’s rights explicitly specified herein as if a party
hereto.
|
| (d) |
This
Agreement shall terminate upon the termination of the Swap Contract
and
the disbursement by the Swap Contract Administrator of all funds received
under the Swap Contract to CHL and the Trustee on behalf of the Holders
of
the Benefited Certificates.
|
| (e) |
This
Agreement may be amended, supplemented or modified in writing by the
parties hereto, provided that no amendment shall adversely affect in
any
material respect the Counterparty without the prior written consent
of the
Counterparty, which consent shall not be unreasonably
withheld.
|
| (f) |
This
Agreement may be executed by one or more of the parties to this Agreement
on any number of separate counterparts (including by facsimile
transmission), and all such counterparts taken together shall be deemed
to
constitute one and the same instrument.
|
| (g) |
Any
provision of this Agreement which is prohibited or unenforceable in
any
jurisdiction shall, as to such jurisdiction, be ineffective to the
extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
|
| (h) |
The
representations and warranties made by the parties to this Agreement
shall
survive the execution and delivery of this Agreement. No act or omission
on the part of any party hereto shall constitute a waiver of any such
representation or warranty.
|
| (i) |
The
article and section headings in this Agreement are for convenience
of
reference only, and shall not limit or otherwise affect the meaning
of
this Agreement.
|
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and
delivered as of the day and year first above written.
|
THE
BANK OF NEW YORK,
as
Swap Contract Administrator
|
|||||||||||||
|
By:
|
/s/
Xxxxxxx Xxxxxx
|
||||||||||||
|
Name:
|
Xxxxxxx
Xxxxxx
|
||||||||||||
|
Title:
|
Assistant
Treasurer
|
||||||||||||
|
THE
BANK OF NEW YORK,
not
in its individual or corporate capacity but solely as
Trustee
|
|||||||||||||
|
By:
|
/s/
Xxxxxxx Xxxxxx
|
||||||||||||
|
Name:
|
Xxxxxxx
Xxxxxx
|
||||||||||||
|
Title:
|
Assistant
Treasurer
|
||||||||||||
|
COUNTRYWIDE
HOME LOANS, INC.
|
|||||||||||||
|
By:
|
/s/
Xxxxxxx Xxxxxxxxxxxx
|
||||||||||||
|
Name:
|
Xxxxxxx
Xxxxxxxxxxxx
|
||||||||||||
|
Title:
|
Managing
Director
|
||||||||||||
EXHIBIT
A
SWAP
CONTRACT
EXHIBIT
B
NOVATION
AGREEMENT
EXHIBIT
C
CREDIT
SUPPORT ANNEX
