Exhibit 99.8
CAP CONTRACT ADMINISTRATION AGREEMENT
This CAP CONTRACT ADMINISTRATION AGREEMENT, dated as of December 29,
2006 (this "Agreement"), among THE BANK OF NEW YORK ("BNY"), as Cap Contract
Administrator (in such capacity, the "Cap Contract Administrator") and as
Indenture Trustee under the Indenture referred to below (in such capacity, the
"Indenture Trustee"), and COUNTRYWIDE HOME LOANS, INC. ("CHL").
WHEREAS, CHL is a party to two interest rate cap agreements between
CHL and Xxxxxx Brothers Special Financing Inc., as cap counterparty (the
"Counterparty") with a Trade Date of December 12, 2006, one with a reference
number of Global ID 2788180 and one with a reference number of Global ID 2788027
(each, a "Cap Contract"), copies of which are attached to this Agreement at
Exhibit A;
WHEREAS, CWHEQ Revolving Home Equity Loan Trust, Series 2006-I (the
"Trust") has entered into an Indenture, dated as of December 29, 2006 (the
"Indenture"), between the Trust and the Indenture Trustee;
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 Fixed Amount (as defined
in the applicable Cap Contract)), under the applicable Cap Contract to the Cap
Contract Administrator, pursuant to the Assignment Agreement, dated as of the
date hereof (the "Assignment Agreement"), among CHL, as assignor, the Cap
Contract Administrator, as assignee, and the Counterparty;
WHEREAS, CHL desires that the Net Payments (as defined below) on the
Cap Contracts be distributed to the Indenture Trustee for the benefit of the
Holders of the Benefited Notes to be applied for the purposes specified in the
Indenture and that the Excess Payments (as defined below) on the Cap Contracts
be distributed to CHL; and
WHEREAS, CHL and the Indenture Trustee desire to appoint the Cap
Contract Administrator, and the Cap Contract Administrator desires to accept
such appointment, to distribute funds received under the Cap Contracts to the
Indenture Trustee and to CHL as provided in this Agreement.
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 Master
Glossary of Defined Terms attached to the Indenture.
Benefited Notes: The Class 1-A Notes and Class 2-A Notes.
Calculation Period: With respect to each Cap Contract and any
payment made under such Cap Contract, the related "Calculation Period" as
defined in such Cap Contract.
Controlling Party: As defined in Section 5.
Cap Contract Account: The separate account created and maintained by
the Cap Contract Administrator pursuant to Section 3 with a depository
institution in the name of the Cap Contract Administrator for the benefit of CHL
and the Indenture Trustee on behalf of the Holders of the Benefited Notes and
designated "The Bank of New York for Countrywide Home Loans, Inc. and certain
registered Holders of Revolving Home Equity Loan Asset-Backed Notes, Series
2006-I". Funds in the Cap Contract Account shall be held for CHL and for the
Indenture Trustee for the benefit of the Holders of the Benefited Notes as set
forth in this Agreement.
Day Count Fraction: With respect to each Cap Contract and any
Payment Date, the "Floating Rate Day Count Fraction" specified for the
Calculation Period related to such Payment Date in the applicable Cap Contract.
Excess Payment: For any Payment Date, (a) with respect to any
payment received by the Cap Contract Administrator from the Counterparty in
respect of each Cap Contract for such Payment Date (other than any payment in
respect of an early termination of the Cap Contract), an amount equal to the
excess, if any, of such payment over the Net Payment for such Payment Date and
(b) with respect to any payment received by the Cap Contract Administrator from
the Counterparty in respect of an early termination of such Cap Contract
received during the period from and including the immediately preceding Payment
Date to and excluding the day immediately preceding the current Payment Date, an
amount equal to the excess, if any, of such payment over the Net Payment in
respect of such Payment Date.
LIBOR: With respect to each Cap Contract, the "Floating Rate Option"
as defined in the applicable Cap Contract.
Net Payment: For any Payment Date, (a) with respect to any payment
received by the Cap Contract Administrator from the Counterparty in respect of
the Cap Contracts for such Payment Date (other than any payment in respect of an
early termination of the Cap Contracts), an amount equal to the product of (i)
the excess, if any, of (x) LIBOR, over (y) the related Strike Rate, (ii) the
lesser of (x) the related Notional Balance for such Payment Date and (y) the
Note Principal Balance of the Benefited Notes immediately prior to such Payment
Date and (iii) the Day Count Fraction, and (b) with respect to any payment
received by the Cap Contract Administrator from the Counterparty in respect of
an early termination of the Cap Contracts received during the period from and
including the immediately preceding Payment Date to and excluding the day
immediately preceding the current Payment Date, an amount equal to the product
of (i) a fraction, the numerator of which is equal to the lesser of (x) the
related Notional Balance for the first Payment Date on or after the early
termination of the Cap Contracts and (y) the Note Principal Balance of the
Benefited Notes immediately prior to the first Payment Date on or after the
early termination of the Cap Contracts, and the denominator of which is equal to
the related Notional Balance for the first Payment Date on or after the early
termination of the Cap Contracts and (ii) the amount of such payment received in
respect of such early termination. Notwithstanding the foregoing, in the event
that the Note Principal Balance of the Benefited Notes is reduced to zero prior
to the termination of the Cap Contracts, the Net Payment for any Payment Date
following the Payment Date on which the Note Principal Balance of the Benefited
Notes is reduced to zero shall be zero.
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Notional Balance: With respect to each Cap Contract and any Payment
Date, the "Notional Amount" specified for the Calculation Period related to such
Payment Date in the applicable Cap Contract.
Responsible Officer: When used with respect to the Cap Contract
Administrator, any Vice President, any Assistant Vice President, the Secretary,
any Assistant Secretary, any Trust Officer or any other officer of the Cap
Contract Administrator with direct responsibility for the transactions
contemplated hereby 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.
Strike Rate: With respect to each Cap Contract and any Payment Date,
the "Cap Rate" specified for the Calculation Period related to such Payment Date
in the applicable Cap Contract.
2. Appointment of Cap Contract Administrator.
CHL and the Indenture Trustee hereby appoint BNY to serve as Cap Contract
Administrator pursuant to this Agreement. The Cap Contract Administrator accepts
such appointment and acknowledges the assignment to it of CHL's rights under the
Cap Contract pursuant to the Assignment Agreement. The Cap Contract
Administrator agrees to exercise the rights referred to above for the benefit of
CHL and the Indenture Trustee on behalf of the Holders of the Benefited Notes
and to perform the duties set forth in this Agreement.
3. Receipt of Funds; Cap Contract Account.
The Cap Contract Administrator hereby agrees to receive, on behalf of CHL
and on behalf of the Indenture Trustee for the benefit of the Holders of the
Benefited Notes, all amounts paid by the Counterparty under the Cap Contract.
The Cap Contract Administrator shall establish and maintain a Cap Contract
Account into which the Cap Contract Administrator shall deposit or cause to be
deposited on the Business Day of receipt, all amounts payable by the
Counterparty under the Cap Contracts. All funds deposited in the Cap Contract
Account shall be held for the benefit of CHL and for the Indenture Trustee for
the benefit of the Holders of the Benefited Notes until withdrawn in accordance
with Section 4. The Cap Contract Account shall be an "Eligible Account" as
defined in the Indenture and, if the Indenture is satisfied and discharged in
accordance with its terms prior to the termination of this Agreement, the Cap
Contract Account shall be an account that would otherwise qualify as an
"Eligible Account" under the Indenture had such satisfaction and discharge not
occurred.
Funds in the Cap Contract Account shall remain uninvested.
The Cap Contract Administrator shall give at least 30 days' advance notice
to CHL and the Indenture Trustee of any proposed change of location of the Cap
Contract Account prior to any change thereof.
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4. Calculations; Distribution of Payments; Delivery of Notices.
The Cap Contract Administrator hereby agrees to perform the calculations
necessary to distribute payments in accordance with this Section 4. The Cap
Contract Administrator shall perform such calculations based on (x) the Note
Principal Balance of the Benefited Notes provided by the Indenture Trustee
pursuant to the Indenture and (y) the Notional Balances, Day Count Fractions and
values of LIBOR provided by the Counterparty pursuant to the Cap Contracts. The
Cap Contract Administrator shall, absent manifest error, be entitled to rely on
information provided by the Indenture Trustee and the Counterparty.
On the Business Day of receipt of any payment from the Counterparty, the
Cap Contract Administrator shall withdraw the amount of such payment from the
Cap Contract Account and distribute such amounts sequentially, as follows:
(a) first, to the Indenture Trustee, the applicable Net Payment; and
(b) second, to CHL, the applicable Excess Payment, in accordance with
the following wiring instructions:
Beneficiary Account: BANK OF AMERICA NA-SAN FRANCISCO
FFED: 000000000
Beneficiary: COUNTRYWIDE HOME LOANS, INC.
A/C: 12352 06200
The Cap Contract Administrator shall prepare and deliver any notices
required to be delivered under the Cap Contracts.
5. Control Rights.
The Controlling Party shall have the right, but not the obligation, to
direct the Cap Contract Administrator with respect to the exercise of any right
under the Cap Contracts (such as the right to designate an Early Termination
Date following an Event of Default (each such term as defined in the Cap
Contracts). For purposes of this Agreement, the "Controlling Party" shall mean,
(i) if the Note Principal Balance of the Benefited Notes immediately prior to
the most recent Payment Date (or, prior to the first Payment Date, the original
Note Principal Balance) is equal to or greater than 50% of the Notional Balance
as of such Payment Date (or, prior to the first Payment Date, the original
Notional Balance), the Indenture Trustee, and (ii) if the Note Principal Balance
of the Benefited Notes immediately prior to the most recent Payment Date (or,
prior to the first Payment Date, the original Note Principal Balance) is less
than 50% of the Notional Balance as of such Payment Date (or, prior to the first
Payment Date, the original Notional Balance), CHL.
6. Representations and Warranties of the Cap Contract Administrator. The Cap
Contract Administrator represents and warrants as follows:
(a) BNY is duly organized and validly existing under the laws of the
jurisdiction of its organization and has all requisite power and
authority to execute and deliver
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this Agreement and to perform its obligations as Cap Contract
Administrator under this Agreement.
(b) The execution, delivery and performance of this Agreement by BNY as
Cap Contract Administrator has been duly authorized by BNY.
(c) This Agreement has been duly executed and delivered by BNY as Cap
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).
7. Certain Matters Concerning the Cap Contract Administrator.
(a) The Cap 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 Cap
Contract Administrator from liability for its own grossly negligent
action, its own grossly negligent failure to act or its own willful
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 Cap Contract Administrator
shall be determined solely by the express provisions of this
Agreement, the Cap Contract Administrator shall not be liable,
individually or as Cap 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 Cap
Contract Administrator and the Cap 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 Cap 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 Cap Contract Administrator shall not be liable,
individually or as Cap Contract Administrator, for an error of
judgment made in good faith by a Responsible Officer or
Responsible Officers of the Cap Contract Administrator, unless
the Cap Contract Administrator was grossly negligent or acted
in bad faith or with willful misfeasance; and
(iii) the Cap Contract Administrator shall not be liable,
individually or as Cap 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
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the Controlling Party, or exercising any power conferred upon
the Cap Contract Administrator under this Agreement.
(c) Except as otherwise provided in Sections 7(a) and 7(b):
(i) the Cap 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 Cap 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 Cap Contract Administrator shall not be liable,
individually or as Cap 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 Cap 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 CHL or the Indenture Trustee; provided, however, that if
the payment within a reasonable time to the Cap 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 Cap Contract Administrator not reasonably
assured to the Cap Contract Administrator by CHL and/or the
Indenture Trustee, the Cap Contract Administrator may require
reasonable indemnity against such expense, or liability from
CHL and/or the Indenture Trustee, as the case may be, as a
condition to taking any such action; and
(v) the Cap 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.
(d) CHL covenants and agrees to pay or reimburse the Cap Contract
Administrator, upon its request, for all reasonable expenses and
disbursements incurred or made by the Cap 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 Cap Contract Administrator and
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any director, officer, employee or agent of the Cap 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, or in connection with the
performance of any of the Cap Contract Administrator's duties
hereunder, other than any loss, liability or expense incurred by
reason of willful misfeasance, bad faith or negligence in the
performance of any of the Cap Contract Administrator's duties
hereunder. Such indemnity shall survive the termination of this
Agreement or the resignation of the Cap Contract Administrator
hereunder. Notwithstanding anything to the contrary in this Section
7(d), any expenses, disbursements, losses or liabilities of the Cap
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 Noteholders made to the Indenture Trustee as
contemplated by Section 5.12 of the Indenture and consequently made
to the Cap Contract Administrator by the Indenture Trustee shall be
payable by the Indenture Trustee out of the security or indemnity
provided by any such Noteholders pursuant to Section 6.01(c)(v) of
the Indenture.
(e) Upon the resignation of BNY as Indenture Trustee in accordance with
the Indenture, (i) BNY shall resign and be discharged from its
duties as Cap Contract Administrator hereunder and (ii) the Person
that succeeds BNY as Indenture Trustee shall be appointed as
successor Cap Contract Administrator hereunder upon its execution,
acknowledgement and delivery of the instrument accepting such
appointment in accordance with Section 6.11 of the Indenture,
whereupon the duties of the Cap Contract Administrator hereunder
shall pass to such Person. In addition, upon the appointment of a
successor Indenture Trustee under the Indenture, such successor
Indenture Trustee shall succeed to the rights of the Indenture
Trustee hereunder.
8. 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) This Agreement shall terminate upon the termination of the Cap
Contracts and the disbursement by the Cap Contract Administrator of
all funds received under the Cap Contracts to CHL and the Indenture
Trustee for the benefit of the Holders of the Benefited Notes.
(d) This Agreement may be amended, supplemented or modified in writing
by the parties hereto.
(e) 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
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all such counterparts taken together shall be deemed to constitute
one and the same instrument.
(f) 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.
(g) 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.
(h) 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]
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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,
not in its individual capacity but
solely as Cap Contract Administrator
By: /s/ Xxxxxxxx Xxxxxxxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxxxxxxx
Title: Vice President
THE BANK OF NEW YORK,
not in its individual capacity but
solely as Indenture Trustee
By: /s/ Xxxxxxxx Xxxxxxxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxxxxxxx
Title: Vice President
COUNTRYWIDE HOME LOANS, INC.
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Executive Vice President
ACKNOWLEDGED AND AGREED:
CWHEQ REVOLVING HOME EQUITY LOAN TRUST, Series 2006-I
By: Wilmington Trust Company,
not in its individual capacity but
solely as Owner Trustee
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Financial Services Officer
EXHIBIT A
CAP CONTRACTS
A-1
