EXHIBIT 99.3
ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT, dated as of November 30, 2006 ("Assignment
Agreement"), among BEAR XXXXXXX CAPITAL MARKETS ("BSCM"), BEAR XXXXXXX
FINANCIAL PRODUCTS ("BSFP" or "Remaining Party"), COUNTRYWIDE HOME LOANS, INC.
("CHL"), and THE BANK OF NEW YORK ("Assignee"), not in its individual or
corporate capacity but solely as Swap Contract Administrator for CWABS, Inc.
Asset-Backed Certificates Series 2006-21, pursuant to a Swap Contract
Administration Agreement (the "Swap Contract Administration Agreement") dated
as of November 30, 2006.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, effective as of November 30, 2006, BSCM desires to assign all
of its rights and delegate all of its duties and obligations to BSFP under a
certain Transaction (the "Assigned Transaction") as evidenced by a certain
confirmation dated November 9, 2006 between BSCM and CHL with a Trade Date of
November 8, 2006, whose BEAR XXXXXXX CAPITAL MARKETS INC. reference number is
CXCWL0621 (the "Old Confirmation"), a copy of which is attached hereto as
Exhibit I;
WHEREAS, the Old Confirmation supplements, forms a part of, and is
subject to, an agreement in the form of the 1992 Multicurrency - Cross Border
Master Agreement published by the International Swaps and Derivatives
Association, Inc. (the "CHL ISDA Master Agreement"), dated July 28, 1995
between BSCM and CHL;
WHEREAS, BSFP desires to accept the assignment of rights and assume the
delegation of duties and obligations of BSCM under the Assigned Transaction
and the Old Confirmation, including any modifications that may be agreed to by
BSFP and CHL;
WHEREAS, BSCM desires to obtain the written consent of CHL to the
assignment, delegation, and assumption and CHL desires to grant such consent
in accordance with the terms hereof;
WHEREAS, following the assignment of the Assigned Transaction from BSCM
to BSFP and effective as of November 30, 0000, XXX desires to assign all of
its rights and delegate all of its duties and obligations to Assignee under
the Assigned Transaction;
WHEREAS, Assignee desires to accept the assignment of rights and assume
the delegation of duties and obligations of the CHL under the Assigned
Transaction, including any modifications that may be agreed to by Assignee and
Remaining Party;
WHEREAS, CHL 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; and
WHEREAS, following the two assignments discussed above, Assignee and
Remaining Party desire to enter into a new confirmation to evidence the
Assigned Transaction, dated November 30, 2006, between Assignee and Remaining
Party, with a Trade Date of November
30, 2006 whose Bear Xxxxxxx Financial Products reference number is FXCWL0621
(the "New Confirmation"), a copy of which is attached hereto as Exhibit II;
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 November 30, 2006
(the "Effective Date"), BSCM hereby assigns all of its rights and delegates
all of its duties and obligations to BSFP and BSFP hereby assumes all BSCM's
rights, duties, and obligations under the Assigned Transaction and the Old
Confirmation arising on or after the Effective Date (other than BSCM's
obligation to pay the upfront amount to CHL in accordance with the terms of
the Old Confirmation).
Following the assignment from BSCM to BSFP in the immediately preceding
paragraph and effective as of and from the Effective Date, CHL hereby assigns
all of its rights and delegates all of its duties and obligations to Assignee
and Assignee hereby assumes all CHL's rights, duties, and obligations under
the Assigned Transaction and the Old Confirmation arising on or after the
Effective Date (other than CHL's right to receive the upfront amount from BSCM
in accordance with the terms of the Old Confirmation).
2. Release. Effective as of and from the Effective Date, BSCM and CHL
hereby release one another from all duties and obligations owed under and in
respect of the Assigned Transaction and the Old Confirmation, and BSCM and CHL
hereby terminate their rights under and in respect of the Assigned
Transaction; provided, that such release shall not affect BSCM's obligation to
pay the Upfront Amount to CHL in accordance with the terms of the Assigned
Transaction and the Old Confirmation.
Effective as of and from the Effective Date, Remaining Party and CHL
hereby release one another from all duties and obligations owed under and in
respect of the Assigned Transaction and Old Confirmation, and CHL hereby
terminates its rights under and in respect of the Assigned Transaction.
3. Limitation on Liability. BSCM, CHL and Remaining Party agree to the
following: (a) The Bank of New York ("BNY") is entering into this Assignment
Agreement not in its individual or corporate capacity, but solely in its
capacity as Swap Contract Administrator under the Swap Contract Administration
Agreement and its liability under this Assignment Agreement and under the Swap
Contract Administration Agreement shall be as set forth in the Swap Contract
Administration Agreement; (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 personal
liability, if any, being expressly waived by BSCM, CHL and Remaining Party and
any person claiming by, through or under any such party; and (c) recourse
against BNY shall be limited to the assets available under the Swap Contract
Administration Agreement or the pooling and servicing agreement for CWABS,
Inc. Asset-Backed Certificates Series 2006-21 dated as of November 1, 2006
among CWABS, Inc. as depositor, Park Monaco
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Inc., as a seller, Park Sienna LLC, as a seller, Countrywide Home Loans, Inc.
as a seller, Countrywide Home Loans Servicing LP, as master servicer, The Bank
of New York, as trustee, and The Bank of New York Trust Company, N.A., as
co-trustee (the "Pooling and Servicing Agreement").
4. Consent and Acknowledgment. CHL hereby consents to the assignment and
delegation by BSCM to Remaining Party of all the rights, duties, and
obligations of BSCM under the Assigned Transaction pursuant to this Assignment
Agreement.
Remaining Party hereby consents to the assignment and delegation
by CHL to Assignee of all the rights, duties, and obligations of CHL under the
Assigned Transaction pursuant to this Assignment Agreement.
5. Governing Agreement. Following the assignments of the Assigned
Transaction pursuant to the terms hereof, Assignee and Remaining Party agree
that the terms of the New Confirmation shall govern the Assigned Transaction.
The New 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
New Confirmation, together with all other documents referring to the ISDA Form
Master Agreement confirming transactions 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;
(c) Such execution, delivery and performance do not violate or
conflict with any law applicable to it, any provision of its
constitutional documents, any order or judgment of any court or
other agency of government applicable to it or any of its assets
or any contractual restriction binding on or affecting it or any
of its assets;
(d) All governmental and other consents that are required to have been
obtained by it with respect to this Assignment Agreement have been
obtained and are in full force and effect and all conditions of
any such consents have been complied with; and
(e) 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 BSCM, CHL 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 Old
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Confirmation and the CHL ISDA Master 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. Remaining Party
further 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 New 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. CHL 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. Assignee (subject to the limitations set forth in
paragraph 3 above) hereby agrees to indemnify and hold harmless CHL 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 without regard
to conflicts of law provisions thereof other than New York General Obligations
Law Sections 5-1401 and 5-1402.
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
CHL, Countrywide Home Loans, Inc., 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx
00000, Attention: Xxxxxxx Xxxxxxxxxxxx, with a copy to the same address,
Attention: Legal Department, or such other address as may be hereafter
furnished in writing; (ii) in the case of Assignee, The Bank of New York, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust MBS
Administration, CWABS, Series 2006-21 or such other address as may be
hereafter furnished in writing; (iii) in the case of Remaining Party,
Address: 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: DPC Manager - 36th Floor
Telex No. 000-000-0000
copy to: Xxx Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000
Attention: Derivative Operations - 7th Floor
Telex No: 000-000-0000
and (iv) in the case of BSCM,
Address: 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: Derivatives Department
Telex No. 000-000-0000
or such other address as may be hereafter furnished in writing.
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
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New York, NY
ABA # 000-000-000
GLA # 111-565
For Further Credit: TAS A/C 501610
Attn: Xxxxx Xxxxx 000-000-0000
Fax: 000-000-0000
11. Optional Termination. In connection with the optional termination of
the trust fund pursuant to Section 9.01 of the Pooling and Servicing
Agreement, with effect following all distributions on the final Distribution
Date under the Pooling and Servicing Agreement (such date, the "Optional
Termination Distribution Date"):
(a) (1) (A) Assignee hereby assigns all of its rights and delegates
all of its liabilities and obligations to CHL and CHL hereby
assumes all of Assignee's rights, liabilities, and obligations,
under the Assigned Transaction and the New Confirmation arising
after the final distributions on the Optional Termination
Distribution Date (such transaction and confirmation,
collectively, the "New Assigned Transaction") and (B) Remaining
Party hereby consents to such assignment, delegation and
assumption;
(2) Remaining Party and CHL agree to enter into the New Assigned
Transaction as evidenced by a confirmation (the "Re-assignment
Confirmation") such Re-assignment Confirmation evidencing a
complete and binding agreement between Remaining Party and CHL and
such Re-assignment Confirmation will constitute a Confirmation (as
that word is defined in the New Agreement, defined below) that
supplements, forms a part of, and is subject to, an agreement (the
"New Agreement") in the form of the 1992 Multicurrency - Cross
Border Master Agreement in the form published by the International
Swaps and Derivatives Association, Inc. (the "ISDA Form"), as if
on the date Remaining Party and CHL enter into the New Assigned
Transaction Remaining Party and CHL had executed an agreement in
such form, but without any Schedule (as that word is defined in
the New Agreement) except for the elections made therein.
Remaining Party and CHL further agree that such Re-assignment
Confirmation shall have substantially identical terms to the
Assigned Transaction and New Confirmation.
(b) Remaining Party and Assignee are each released and discharged from
further obligations owed under and in respect of the Assigned
Transaction and their respective rights against each other
thereunder are cancelled;
(c) Remaining Party and CHL hereby agree that the New Confirmation
shall be amended as follows:
(1) Section 4 of the Confirmation shall be deleted in its
entirety.
(d) Remaining Party hereby agrees that CHL may do one of the following
with the New Assigned Transaction and the Re-assignment
Confirmation:
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(i) retain such New Assigned Transaction and Re-assignment
Confirmation;
(ii) assign all of its rights and delegate all of its liabilities
and obligations under the New Assigned Transaction and the
Re-assignment Confirmation 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 New Assigned Transaction by giving three
Business Days' prior written notice to Remaining Party (the
"Optional Swap Termination"). In connection with the Optional Swap
Termination, if any, a termination payment (if any) shall be
payable by CHL or Remaining Party, as applicable, as determined by
the Calculation Agent by the application of Section 6(e)(ii) of
the ISDA Form, 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 between
CHL and Bear Xxxxxxx Financial Products Inc. For purposes of the
Optional Swap Termination, CHL shall be the sole Affected Party.
(e) If CHL exercises its right to retain the New Assigned Transaction
and Re-assignment Confirmation pursuant to Section 11(d)(i) of
this Assignment Agreement, then Remaining Party has the right to
do one of the following with the New Assigned Transaction and the
Re-assignment Confirmation:
(i) retain such New Assigned Transaction and Re-assignment
Confirmation; (ii) assign all of its rights and delegate all of
its liabilities and obligations under the New Assigned Transaction
and the Re-Assignment Confirmation to a subsidiary of The Bear
Xxxxxxx Companies, Inc. without the consent of CHL; or (iii)
assign all of its rights and delegate all of its liabilities and
obligations under the New Assigned Transaction and the
Re-Assignment Confirmation to a third party with the consent of
CHL;
provided, however, that if Remaining Party exercises its right to
assign the New Assigned Transaction under (ii) or (iii) above, the
assignee shall be an entity that (1) has executed an ISDA Master
Agreement with CHL, (2) has executed an Item 1115 Regulation AB
Agreement with CHL and (3) agrees to accept all of the terms and
conditions of the Assigned Transaction and Re-assignment
Confirmation without amendment or supplement.
12. 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 instrument.
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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
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Name: Xxxxxx Xxxxx
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Title: Executive Vice President
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THE BANK OF NEW YORK, AS SWAP CONTRACT
ADMINISTRATOR FOR CWABS, INC. ASSET-BACKED
CERTIFICATES SERIES 2006-21
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
------------------------------------
Title: Assistant Vice President
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BEAR XXXXXXX CAPITAL MARKETS INC.
By: /s/ Xxxxxxxxx Xxxxxx
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Name: Xxxxxxxxx Xxxxxx
------------------------------------
Title: Authorized Signatory
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BEAR XXXXXXX FINANCIAL PRODUCTS INC.
By: /s/ Xxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxx
------------------------------------
Title: Authorized Signatory
-----------------------------------
