Exhibit 99.3
ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT, dated as of March 30, 2007 ("Assignment
Agreement"), among COUNTRYWIDE HOME LOANS, INC. ("Assignor"), THE BANK OF NEW
YORK ("Assignee"), not in its individual or corporate capacity, but solely as
Corridor Contract Administrator for CWHEQ Home Equity Loan Trust, Series
2007-S2, pursuant to a Corridor Contract Administration Agreement (the
"Corridor Contract Administration Agreement") dated as of March 30, 2007, and
BEAR XXXXXXX FINANCIAL PRODUCTS INC. ("Remaining Party").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, effective as of March 30, 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 March 23, 2007, whose BEAR XXXXXXX FINANCIAL
PRODUCTS INC. reference number is FXNEC9347, (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 March 30, 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 Corridor Contract Administrator under the
Corridor Contract Administration Agreement; and (b) in no case shall BNY (or
any person acting as successor Corridor Contract Administrator under the
Corridor 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. Additional Provision. Each party hereby agrees that the
Confirmation and thus the Assigned Transaction are each hereby amended as
follows:
(a) The following additional provision shall be added as a new
Section 6:
"Regulation AB Compliance. BSFP and Counterparty agree that
the terms of the Item 1115 Agreement dated as of January 30,
2006 (the "Regulation AB Agreement"), between Countrywide
Home Loans, Inc., CWABS, INC., CWMBS, Inc., CWALT, Inc.,
CWHEQ, Inc. and Bear Xxxxxxx Financial Products Inc. shall
be incorporated by reference into this Agreement so that
Counterparty shall be an express third party beneficiary of
the Regulation AB Agreement. A copy of the Regulation AB
Agreement is attached hereto as Annex A."
7. 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.
2
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.
8. 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.
9. Governing Law. This Assignment Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
10. 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, 0x, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Corporate Trust MBS Administration, CWHEQ, Series
2007-S2 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: 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: DPC Manager
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
or such other address as may be hereafter furnished in writing to
Assignor and Assignee.
11. 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
New York, NY
ABA # 000-000-000
GLA # 111-565
For Further Credit: TAS A/C 540734
Attn: Xxxxxxx Xxxxxx
Phone: 000-000-0000
Fax: 000-000-0000
3
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.
4
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, NOT IN ITS INDIVIDUAL
OR CORPORATE CAPACITY, BUT SOLELY AS CORRIDOR
CONTRACT ADMINISTRATOR FOR CWHEQ HOME EQUITY
LOAN TRUST, SERIES 2007-S2
By: /s/Xxxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
----------------------------------------
Title: Vice President
---------------------------------------
BEAR XXXXXXX FINANCIAL PRODUCTS INC.
By: /s/Xxxx Manentz
------------------------------------------
Name: Xxxx Manentz
----------------------------------------
Title: Authorised Signatory
---------------------------------------
5
BEAR XXXXXXX Exhibit I
BEAR XXXXXXX FINANCIAL PRODUCTS INC.
000 XXXXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
000-000-0000
DATE: March 27, 2007
TO: Countrywide Home Loans, Inc.
ATTENTION; Xx. Xxxx Xxxxx
TELEPHONE: 0-000-000-0000
FACSIMILE: 0-000-000-0000 FAX: 0-000-000-0000
FROM: Derivatives Documentation
TELEPHONE: 000-000-0000
FACSIMILE: 000-000-0000
SUBJECT: Fixed Income Derivatives Confirmation and
Agreement
REFERENCE NUMBER: FXNEC9347
The purpose of this letter agreement ("Agreement") is to confirm the terms and
conditions of the Transaction entered into on the Trade Date specified below
(the "Transaction") between Bear Xxxxxxx Financial Products Inc. ("BSFP") and
Countrywide Home Loans, Inc. ("Counterparty"). This Agreement, which evidences
a complete and binding agreement between BSFP and Counterparty to enter into
the Transaction on the terms set forth below, constitutes a "Confirmation" as
referred to in the "ISDA Form Master Agreement" (as defined below), as well as
a "Schedule" as referred to in the ISDA Form Master Agreement.
1. This Agreement is subject to and incorporates the 2000 ISDA Definitions
(the "Definitions"), as published by the International Swaps and
Derivatives Association, Inc, ("ISDA"), BSFP and Counterparty have
agreed to enter into this Agreement in lieu of negotiating a Schedule to
the 1992 ISDA Master Agreement (Multicurrency--Cross Border) form (the
"ISDA Form Master Agreement"). An ISDA Form Master Agreement shall be
deemed to have been executed by BSFP and Counterparty on the date we
entered into the Transaction. All provisions contained in, or
incorporated by reference to, the ISDA Form Master Agreement shall
govern the Transaction referenced in this Confirmation except as
expressly modified herein. In the event of any inconsistency between the
provisions of this Agreement and the Definitions or the ISDA Form Master
Agreement, this Agreement shall prevail for purposes of the Transaction.
2. The terms of the particular Transaction to which this Confirmation
relates are as follows:
Type of Transaction: Rate Cap
Reference Number: FXNEC9347
Countrywide Home Loans, Inc.
March 27, 2007
Page 2 of 11
Notional Amount: With respect to any Calculation Period,
the amount set forth for such period
in the Schedule of Notional Amounts
attached hereto.
Trade Date: March 23, 2007
Effective Date: Xxxxx 00, 0000
Xxxxxxxxxxx Date: February 25, 2009, subject to
adjustment in accordance with the
Business Day Convention.
Fixed Amount (Premium):
Fixed Rate Payer: Counterparty
Fixed Rate Payer
Payment Date: March 30, 2007
Fixed Amount: USD 8,000
Floating Amounts:
Floating Rate Payer: BSFP
Cap Rate: With respect to any Calculation Period,
the rate set forth for such period in
the Schedule of Notional Amounts
attached hereto.
Floating Rate Payer
Period End Dates: The 25th calendar day of each month
during the Term of this Transaction,
commencing April 25, 2007 and ending
on the Termination Date, subject to
adjustment in accordance with the
Business Day Convention.
Floating Rate Payer
Payment Dates: Early Payment shall be applicable.
One Business Day preceding each
Floating Rate Payer Period End Date.
Floating Rate Option: USD-LIBOR-BBA, provided, however, that
if the Floating Rate determined from
such Floating Rate Option for any
Calculation Period is greater than
9,00000% then the Floating Rate for
such Calculation Period shall be deemed
to be 9.00000%.
Designated Maturity: One month
Reference Number: FXNEC9347
Countrywide Home Loans, Inc.
March 27, 2007
Page 3 of 11
Floating Rate Day
Count Fraction: Actual/360
Reset Dates: The first day of each Calculation
Period.
Compounding: Inapplicable
Business Days for payments: New York
Business Day Convention: Modified Following
3. Additional Provisions: Each party hereto is hereby advised
and acknowledges that the other party
has engaged in (or refrained from
engaging in) substantial financial
transactions and has taken (or
refrained from taking) other material
actions in reliance upon the entry by
the parties into the Transaction being
entered into on the terms and
conditions set forth herein and in the
Confirmation relating to such
Transaction, as applicable. This
paragraph shall be deemed repeated on
the trade date of each Transaction.
4. Provisions Deemed Incorporated in a Schedule to the ISDA Form Master
Agreement:
1) The parties agree that subparagraph (ii) of Section 2(c) of the ISDA
Form Master Agreement will apply to any Transaction.
2) Termination Provisions. For purposes of the ISDA Form Master Agreement:
(a) "Specified Entity" is not applicable to BSFP or Counterpart, for any
purpose.
(b) "Specified Transaction" is not applicable to BSFP or Counterparty for any
purpose, and, accordingly, Section 5(a)(v) of the ISDA Form Master Agreement
shall not apply to BSFP or Counterparty.
(c) The "Cross Default" provisions of Section 5(a)(vi) of the ISDA Form
Master Agreement will not apply to BSFP or to Counterparty.
(d) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) of the
ISDA Form Master Agreement will not apply to BSFP or to Counterparty.
(e) The "Automatic Early Termination" provision of Section 6(a) of the ISDA
Form Master Agreement will not apply to BSFP or to Counterparty.
Reference Number: FXNEC9347
Countrywide Home Loans, Inc.
March 27, 2007
Page 4 of 11
(f) Payments on Early Termination. For the purpose of Section 6(e) of the 1SDA
Form Master Agreement:
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(g) "Termination Currency" means United States Dollars.
3) Tax Representations. Not applicable
4) Limitation on Events of Default. Notwithstanding the terms of Sections 5
and 6 of the ISDA Form Master Agreement, if at any time and so long as the
Counterparty has satisfied in full all its payment obligations under Section
2(a)(i) of the ISDA Form Master Agreement and has at the time no future
payment obligations, whether absolute or contingent, under such Section, then
unless BSFP is required pursuant to appropriate proceedings to return to the
Counterparty or otherwise returns to the Counterparty upon demand of the
Counterparty any portion of any such payment, (a) the occurrence of an event
described in Section 5(a) of the ISDA Form Master Agreement with respect to
the Counterparty shall not constitute an Event of Default or Potential Event
of Default with respect to the Counterparty as Defaulting Party and (b) BSFP
shall be entitled to designate an Early Termination Date pursuant to Section 6
of the ISDA Form Master Agreement only as a result of the occurrence of a
Termination Event set forth in either Section 5(b)(i) or 5(b)(ii) of the ISDA
Form Master Agreement with respect to BSFP as the Affected Party or Section
5(b)(iii) of the 1SDA Form Master Agreement with respect to BSFP as the
Burdened Party.
5) Documents to be Delivered. For the purpose of Section 4(a) of the ISDA
Form Master Agreement:
(1) Tax forms, documents, or certificates to be delivered are:
Party required to deliver Form/Document/ Date by which to
document Certificate be delivered
BSFP and the Counterparty Any document required or Promptly after the earlier of
reasonably requested to (i) reasonable demand by either
allow the other party to party or (ii) learning that such
make payments under this form or document is required
Agreement without any
deduction or withholding
for or on the account of
any Tax or with such
deduction or withholding
at a reduced rate
(2) Other documents to be delivered are:
Reference Number: FXNEC9347
Countrywide Home Loans, Inc.
March 27, 2007
Page 5 of 11
Party required to deliver Form/Document/Certificate Date by which to be Covered by
document delivered Section 3(d)
Representation
BSFP and the Counterparty Any documents required by the Upon the execution and Yes
receiving party to evidence the delivery of this Agreement
authority of the delivering and such Confirmation
party or its Credit Support
Provider, if any, for it to
execute and deliver this
Agreement, any Confirmation, and
any Credit Support Documents to
which it is a party, and to
evidence the authority of the
delivering party or its Credit
Support Provider to perform its
obligations under this
Agreement, such Confirmation
and/or Credit Support Document,
as the case may be
BSFP and the Counterparty A certificate of an authorized Upon the execution and Yes
officer of the party, as to the delivery of this Agreement
incumbency and authority of the and such Confirmation
respective officers of the party
signing this Agreement, any
relevant Credit Support
Document, or any Confirmation,
as the case may be
6) Miscellaneous. Miscellaneous
(a) Address for Notices: For the purposes of Section 12(a) of the
ISDA Form Master Agreement:
Reference Number: FXNEC9347
Countrywide Home Loans, Inc.
March 27, 2007
Page 6 of 11
Address for notices or communications to BSFP:
Address: 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: DPC Manager
Facsimile: (000) 000-0000
with a copy to:
Address: Xxx Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000
Attention: Derivative Operations - 7th Floor
Facsimile: (000) 000-0000
(For all purposes)
Address for notices or communications to the Counterparty:
Address: 0000 Xxxx Xxxxxxx
Xxxx Xxxx XX-000
Xxxxxxxxx, XX 00000
Attention: Xx. Xxxx Xxxxx
Facsimile: 000-000-0000
Phone: 000-000-0000
(b) Process Agent. For the purpose of Section 13(c) of the ISDA Form
Master Agreement:
BSFP appoints as its
Process Agent: Not Applicable
The Counterparty appoints as its
Process Agent: Not Applicable
(c) Offices. The provisions of Section 10(a) of the ISDA Form Master
Agreement will not apply to this Agreement; neither BSFP nor the
Counterparty have any Offices other than as set forth in the Notices
Section and BSFP agrees that, for purposes of Section 6(b) of the
ISDA Form Master Agreement, it shall not in future have any Office
other than one in the United States.
(d) Multibranch Party. For the purpose of Section 10(c) of the ISDA
Form Master Agreement:
BSFP is not a Multibranch Party.
The Counterparty is not a Multibranch Party.
Reference Number: FXNEC9347
Countrywide Home Loans, Inc.
March 27, 2007
Page 7 of 11
(e) Calculation Agent. The Calculation Agent is BSFP; provided, however,
that if an Event of Default occurs with respect to BSFP, then the
Counterparty shall be entitled to appoint a financial institution
which would qualify as a Reference Market-maker to act as Calculation
Agent.
(f) Credit Support Document. Not applicable for either BSFP or the
Counterparty.
(g) Credit Support Provider.
BSFP: Not Applicable
The Counterparty: Not Applicable
(h) Governing Law. The parties to this Agreement hereby agree that the
law of the State of New York shall govern their rights and duties in
whole.
(i) Severability. If any term, provision, covenant, or condition of this
Agreement, or the application thereof to any party or circumstance, shall be
held to be invalid or unenforceable (in whole or in part) for any reason, the
remaining terms, provisions, covenants, and conditions hereof shall continue
in full force and effect as if this Agreement had been executed with the
invalid or unenforceable portion eliminated, so long as this Agreement as so
modified continues to express, without material change, the original
intentions of the parties as to the subject matter of this Agreement and the
deletion of such portion of this Agreement will not substantially impair the
respective benefits or expectations of the parties.
The parties shall endeavor to engage in good faith negotiations to replace any
invalid or unenforceable term, provision, covenant or condition with a valid
or enforceable term, provision, covenant or condition, the economic effect of
which comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
(j) Consent to Recording. Each party hereto consents to the monitoring or
recording, at any time and from time to time, by the other party of any and
all communications between officers or employees of the parties, waives any
further notice of such monitoring or recording, and agrees to notify its
officers and employees of such monitoring or recording.
(k) Waiver of Jury Trial. Each party waives any right it may have to a
trial by jury in respect of any Proceedings relating to this Agreement or any
Credit Support Document.
(1) BSFP will not unreasonably withhold or delay its consent to an
assignment of this Agreement to any other third party.
(m) Set-off. The provisions for Set-off set forth in Section 6(e) of the
1SDA Form Master Agreement shall not apply for purposes of this Transaction.
Reference Number: FXNEC9347
Countrywide Home Loans, Inc.
March 27, 2007
Page 8 of 11
7) "Affiliate" will have the meaning specified in Section 14 of the ISDA Form
Master Agreement, provided that BSFP shall not be deemed to have any
Affiliates for purposes of this Agreement, including for purposes of Section
6(b)(ii).
8) Section 3 of the ISDA Form Master Agreement is hereby amended by adding at
the end thereof the following subsection (g):
"(g) Relationship Between Parties.
Each party represents to the other party on each date
when it enters into a Transaction that:-
(1) Nonreliance. It is not relying on any statement or
representation of the other party regarding the Transaction (whether written
or oral), other than the representations expressly made in this Agreement or
the Confirmation in respect of that Transaction.
(2) Evaluation and Understanding.
(i) It has the capacity to evaluate (internally or through
independent professional advice) the Transaction and has made its own decision
to enter into the Transaction; and
(ii) It understands the terms, conditions and risks of the
Transaction and is willing and able to accept those terms and conditions and
to assume those risks, financially and otherwise.
(3) Purpose. It is entering into the Transaction for the
purposes of managing its borrowings or investments, hedging its underlying
assets or liabilities or in connection with a line of business.
(4) Principal. It is entering into the Transaction as
principal, and not as agent or in any other capacity, fiduciary or otherwise."
NEITHER THE BEAR XXXXXXX COMPANIES INC. NOR ANY SUBSIDIARY OR
AFFILIATE OF THE BEAR XXXXXXX COMPANIES INC. OTHER THAN BSFP IS AN
OBLIGOR OR A CREDIT SUPPORT PROVIDER ON THIS AGREEMENT.
Reference Number: FXNEC9347
Countrywide Home Loans, Inc.
March 27, 2007
Page 9 of 11
5. Account Details and Payments to BSFP:
Settlement Iformation: Citibank, N.A., New York
ABA Number: 000-0000-00, for the account
of Bear, Xxxxxxx Securities Corp.
Account Number: 0925-3186, for further
credit to Bear Xxxxxxx Financial Products Inc.
Sub-account Number: 102-04654-1-3
Attention: Derivatives Department
Payments to Counterparty:
Please provide
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.
Counterparty hereby agrees to check this Confirmation and to confirm that the
foregoing correctly sets forth the terms of the Transaction by signing in the
space provided below and returning to BSFP a facsimile of the fully-executed
Confirmation to 000-000-0000. For inquiries regarding U.S. Transactions,
please contact Derivatives Documentation by telephone at 000-000-0000. For all
other inquiries please contact Derivatives Documentation by telephone at
000-0-000-0000. Originals will be provided for your execution upon your
request.
Reference Number: FXNEC9347
Countrywide Home Loans, Inc.
March 27, 2007
Page 10 of 11
We are very pleased to have executed this Transaction with you and we took
forward to completing other transactions with you in the near future.
Very truly yours,
BEAR XXXXXXX FINANCIAL PRODUCTS INC.
By: /s/ XXXXX XXXXXXXX
-----------------------------------------------------
Name: Xxxxx Xxxxxxxx
Title:
Counterparty, acting through its duly authorized signatory, hereby agrees to,
accepts and confirms the terms of the foregoing as of the Trade Date.
COUNTRY WIDE HOME LOANS, INC.
By: /s/ Xxxxx Xxxxxxx
-------------------------------------------------------
As authorized agent or officer for Countrywide Home Loans, Inc.
Name: XXXXX XXXXXXX
Title: EXECUTIVE VICE PRESIDENT
er
Reference Number: FXNEC9347
Countrywide Home Loans, Inc.
March 27, 2007
Page 11 of 11
SCHEDULE OF NOTIONAL AMOUNTS
(all such dates subject to adjustment in accordance with the Business Day Convention)
From and including To but excluding Notional Amount Cap Rate
------------------ ---------------- --------------- --------
(USD)
Effective Date 25-Apr-2007 440,909,000 8.50554%
25-Apr-2007 25-May-2007 429,342,006 7.35277%
25-May-2007 25-Jun-2007 416,276,856 7.11108%
25-Jun-2007 25-Jul-2007 401,829,802 7.35280%
25-Jul-2007 25-Aug-2007 386,034,080 7.11110%
25-Aug-2007 25-Sep-2007 368,929,099 7.11111%
25-Sep-2007 25-Oct-2007 350,560,336 7.35281%
25-Oct-2007 25-Nov-2007 330,979,199 7.11111%
25-Nov-2007 25-Dec-2007 310,243,073 7.35281%
25-Dec-2007 25-Jan-2008 288,414,673 7.11110%
25-Jan-2008 25-Feb-2008 265,562,420 7.11108%
25-Feb-2008 25-Mar-2008 241,778,920 7.61117%
25-Mar-2008 25-Apr-2008 218,319,667 7.11141%
25-Apr-2008 25-May-2008 195,466,670 7.35347%
25-May-2008 25-Jun-2008 173,219,203 7.11208%
25-Jun-2008 25-Jul-2008 151,560,410 7.35416%
25-Jul-2008 25-Aug-2008 130,473,896 7,11276%
25-Aug-2008 25-Sep-2008 109,943,714 7.11310%
25-Sep-2008 25-Oct-2008 89,954,351 7.35522%
25-Oct-2008 25-Nov-2008 70,490,721 7.11379%
25-Nov-2008 25-Dec-2008 51,538,147 7.35594%
25-Dec-2008 25-Jan-2009 33,082,356 7.11449%
25-Jan-2009 Termination Date 15,109,461 711484%
Annex A
Item 1115 Agreement dated as of January 30, 2006 (this "Agreement"),
between COUNTRYWIDE HOME LOANS, INC., a New York corporation ("CHL"), CWABS,
INC., a Delaware corporation ("CWABS"), CWMBS, Inc., a Delaware corporation
("CWMBS"), CWALT, Inc., a Delaware corporation ("CWALT"), CWHEQ, Inc., a
Delaware corporation ("CWHEQ") and BEAR XXXXXXX FINANCIAL PRODUCTS INC., as
counterparty (the "Counterparty").
RECITALS
WHEREAS, CWABS, CWMBS, CWALT and CWHEQ each have filed Registration
Statements on Form S-3 (each, a "Registration Statement") with the Securities
and Exchange Commission (the "Commission") for purposes of offering mortgage
backed or asset-backed notes and/or certificates (the "Securities") through
special purpose vehicles (each, an "SPV").
WHEREAS, from time to time, on the closing date (the "Closing Date") of
a transaction pursuant to which Securities are offered (each, a
"Transaction"), the Counterparty and CHL or an underwriter or dealer with
respect to the Transaction, enter into certain derivative agreements (each, a
"Derivative Agreement"), including interest rate or currency swaps, for
purposes of providing certain yield enhancements that are assigned to the SPV
or the related trustee on behalf of the SPV or a swap or corridor contract
administrator (each, an "Administrator").
NOW, THEREFORE, in consideration of the mutual agreements set forth
herein and for other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, the parties hereby agree as follows:
Section 1. Definitions
Company Information: As defined in Section 4(a)(i).
Company Financial Information: As defined in Section 2(a)(ii).
Depositor: Means CWABS, CWMBS, CWALT or CWHEQ with respect to
the related Registration Statement for which the entity of the registrant.
GAAP: As defined in Section 3(a)(v).
XXXXX: The Commission's Electronic Data Gathering, Analysis
and Retrieval system.
Exchange Act: The Securities Exchange Act of 1934, as amended
and the rules and regulations promulgated thereunder.
Exchange Act Reports: All Distribution Reports on Form 10-D,
Current Reports on Form 8-K and Annual Reports on Form 10-K that are to be
filed with respect to the related SPV pursuant to the Exchange Act.
Master Agreement: The ISDA Master Agreement between the
Counterparty and CHL, or if no such Master Agreement exists, the ISDA Master
Agreement assumed to apply to the Derivative Agreement pursuant to its terms.
Prospectus Supplement: The prospectus supplement prepared in
connection with the public offering and sale of the related Securities.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended
from time to time, and subject to such clarification and interpretation as
have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531
(Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by
the Commission or its staff from time to time.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
Section 2. Information to be Provided by the Counterparty.
(a) Prior to printing the related Prospectus Supplement,
(i) the Counterparty shall provide to the related
Depositor such information regarding the Counterparty,
as a derivative instrument counterparty, as is
reasonably requested by the related Depositor for the
purpose of compliance with Item 1115(a)(1) of
Regulation AB. Such information shall include, at a
minimum:
(A) The Counterparty's legal name (and any d/b/a);
(B) the organizational form of the Counterparty;
(C) a description of the general character of the
business of the Counterparty;
(D) a description of any material legal or
governmental proceedings pending (or known to be
contemplated) against the Counterparty which may
have a material impact on the Counterparty's
ability to perform under the related Derivative
Agreement;
(E) a description of any affiliation or relationship
between the Counterparty and any of the
following parties:
(1) CHL (or any other sponsor identified to
the Counterparty by CHL);
(2) the related Depositor (as identified to
the Counterparty by CHL);
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(3) the SPV;
(4) Countrywide Home Loans Servicing LP (or
any other servicer or master servicer
identified to the Counterparty by CHL);
(5) The Bank of New York (or any other trustee
identified to the Counterparty by CHL);
(6) any originator identified to the
Counterparty by CHL;
(7) any enhancement or support provider
identified to the Counterparty by CHL; and
(8) any other material transaction party
identified to the Counterparty by CHL.
(ii) if requested by the related Depositor for the purpose
of compliance with Item 1115(b) with respect to a
Transaction, the Counterparty shall:
(A) provide the financial data required by Item
1115(b)(1) or (b)(2) of Regulation AB (as
specified by the related Depositor to the
Counterparty) with respect to the Counterparty
(or any entity that consolidates the
Counterparty) and any affiliated entities
providing derivative instruments to the SPV (the
"Company Financial Information"), in a form
appropriate for use in the Prospectus Supplement
and in an XXXXX-compatible form; and
(B) if applicable, cause its accountants to issue
their consent to the filing of such financial
statements in the Registration Statement.
(b) Following the Closing Date with respect to a Transaction,
(i) no later than the 25th calendar day of each month, the
Counterparty shall (i) notify the related Depositor in
writing of (A) any material litigation or governmental
proceedings pending against the Counterparty which may
have a material impact on the Counterparty's ability
to perform under the related Derivative Agreement or
(B) any affiliations or relationships that develop
following the Closing Date between the Counterparty
and any of the parties specified in Section 2(a)(i)(E)
(and any other parties identified in writing by the
related Depositor) and (ii) provide to the related
Depositor a description of such proceedings,
affiliations or relationships as described in Section
2(b)(i)(I)(i); and
(ii) if the Counterparty provided Company Financial
Information to the related Depositor for the
Prospectus Supplement, within 5 Business Days of the
release of any updated financial data, the
Counterparty shall (1) provide current Company
Financial Information as required under Item
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1115(b) of Regulation AB to the related Depositor in
an XXXXX-compatible form, and (2) if applicable, cause
its accountants to issue their consent to filing or
incorporation by reference of such financial
statements in the Exchange Act Reports of the SPV;
(iii) if the related Depositor requests Company Financial
Information from the Counterparty, for the purpose of
compliance with Item 1115(b) of Regulation AB
following the Closing Date, the Counterparty shall
upon five Business Days written notice either (A), (1)
provide current Company Financial Information as
required under Item 1115(b) of Regulation AB to the
related Depositor in an XXXXX-compatible form, (2) if
applicable, cause its accountants to issue their
consent to filing or incorporation by reference of
such financial statements in the Exchange Act Reports
of the SPV and (3) within 5 Business Days of the
release of any updated financial data, provide current
Company Financial Information as required under Item
1115(b) of Regulation AB to the related Depositor in
an XXXXX-compatible form and if applicable, cause its
accountants to issue their consent to filing or
incorporation by reference of such financial
statements in the Exchange Act Reports of the SPV or
(B) assign the Derivative Agreement as provided below.
Section 3. Representations and Warranties and Covenants of the
Counterparty.
(a) The Counterparty represents and warrants to the related
Depositor, as of the date on which information is first
provided to the related Depositor under Section 2(a)(ii),
Section 2(b)(ii) or Section 2(b)(iii)(A), that, except as
disclosed in writing the related Depositor prior to such date:
(i) The accountants who certify the financial statements
and supporting schedules included in the Company
Financial Information (if applicable) are independent
registered public accountants as required by the
Securities Act.
(ii) If applicable, the financial statements included in
the Company Financial Information present fairly the
consolidated financial position of the Counterparty
(or the entity that consolidates the Counterparty) and
its consolidated subsidiaries as at the dates
indicated and the consolidated results of their
operations and cash flows for the periods specified;
except as otherwise stated in the Company Financial
Information, said financial statements have been
prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent
basis; and the supporting schedules included in the
Company Financial Information present fairly in
accordance with GAAP the information required to be
stated therein. The selected financial data and
summary financial information included in the Company
Financial Information present fairly the information
shown therein and have been compiled on a basis
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consistent with that of the audited financial
statements of the Counterparty.
(iii) The Company Financial Information and other Company
Information included or incorporated by reference in
the Registration Statement (including through filing
on an Exchange Act Report), at the time they were or
hereafter are filed with the Commission, complied in
all material respects with the requirements of Item
1115(b) of Regulation AB (in the case of the Company
Financial Information) and, did not and will not
contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein
or necessary in order to make the statements therein,
in the light of the circumstances under which they
were made, not misleading.
(b) The Counterparty agrees that the terms of this Agreement shall
be incorporated by reference into any Derivative Agreement so
that each SPV who is a beneficiary of a Derivative Agreement
shall be an express third party beneficiary of this Agreement.
Section 4. Indemnification; Remedies
(a) The Counterparty shall indemnify CHL and the related Depositor,
each person responsible for the preparation, execution or filing
of any report required to be filed with the Commission with
respect to such SPV, or for execution of a certification pursuant
to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act; each
broker dealer acting as underwriter, each person who controls any
of such parties (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act); and the
respective present and former directors, officers, employees and
agents of each of the foregoing, and shall hold each of them
harmless from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments,
and any other costs, fees and expenses that any of them may
sustain arising out of or based upon:
(i) (A) any untrue statement of a material fact contained
or alleged to be contained in any information, report,
certification, accountants' consent or other material
provided in written or electronic form under Section 2
by or on behalf of the Counterparty (collectively, the
"Company Information"), or (B) the omission or alleged
omission to state in the Company Information a
material fact required to be stated in the Company
Information or necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading; or
(ii) any breach by the Counterparty of a representation or
warranty set forth in Section 3(a) and made as of a
date prior to the Closing Date, to the extent that
such breach is not cured by the Closing Date, or any
breach by the Counterparty of a representation or
warranty pursuant to Section 3 to the extent made as
of a date subsequent to the Closing Date.
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(b) (i) Any failure by the Counterparty to deliver any
information, report, certification, accountants'
consent or other material when and as required under
Section 2 or any breach by the Counterparty of a
representation or warranty set forth in Section 3 and
made as of a date prior to the Closing Date, to the
extent that such breach is not cured by the Closing
Date (or in the case of information needed for
purposes of printing the Prospectus Supplement, the
date of printing of the Prospectus Supplement), or any
breach by the Counterparty of a representation or
warranty pursuant to Section 3 to the extent made as
of a date subsequent to such closing date, shall,
except as provided in clause (ii) of this paragraph,
immediately and automatically, without notice or grace
period, constitute an Additional Termination Event (as
defined in the Master Agreement) with the Counterparty
as the sole Affected Party (as defined in the Master
Agreement) under the Derivative Agreement. Following
such termination, a termination payment (if any) shall
be payable by the applicable party as determined by
the application of Section 6(e)(ii) of the Master
Agreement, with Market Quotation and Second Method
being the applicable method for determining the
termination payment (notwithstanding anything in the
Derivative Agreement to the contrary).
(ii) If the Counterparty has failed to deliver any
information, report, certification or accountants'
consent when and as required under Section 2, which
continues unremedied for the lesser of ten calendar
days after the date on which such information, report,
certification or accountants' consent was required to
be delivered or such period in which the applicable
Exchange Act Report for which such information is
required can be timely filed (without taking into
account any extensions permitted to be filed), and the
Counterparty has not, at its own cost, within the
period in which the applicable Exchange Act Report for
which such information is required can be timely filed
caused another entity (which meets any ratings related
requirement of the applicable rating agencies at such
time) to replace the Counterparty as party to the
Derivative Agreement that (i) has signed an agreement
with CHL and the Depositors substantially in the form
of this Agreement, (ii) has agreed to deliver any
information, report, certification or accountants'
consent when and as required under Section 2 hereof
and (iii) is approved by the Depositor (which approval
shall not be unreasonably withheld and which approval
is not needed if such assignment is to a subsidiary of
The Bear Xxxxxxx Companies, Inc., provided the
Depositor is given notice) and any rating agency, if
applicable, on terms substantially similar to the
Derivative Agreement, then an Additional Termination
Event (as defined in the Master Agreement) shall have
occurred with the Counterparty as the sole Affected
Party. Following such termination, a termination
payment (if any) shall be payable by the applicable
party as determined by the application of Section
6(e)(ii) of the Master Agreement, with Market
Quotation and Second Method being the applicable
method for
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determining the termination payment (notwithstanding
anything in the Derivative Agreement to the contrary).
(iii) In the event that the Counterparty or the SPV has
found a replacement entity in accordance with Section
2(b)(ii), the Counterparty shall promptly reimburse
the SPV for all reasonable incidental expenses
incurred by the SPV, as such are incurred, in
connection with the termination of the Counterparty as
counterparty and the entry into a new Derivative
Instrument. The provisions of this paragraph shall not
limit whatever rights the SPV may have under other
provisions of this Agreement or otherwise, whether in
equity or at law, such as an action for damages,
specific performance or injunctive relief.
Section 5. Miscellaneous.
(a) Construction. Throughout this Agreement, as the context requires,
(a) the singular tense and number includes the plural, and the
plural tense and number includes the singular; (b) the past tense
includes the present, and the present tense includes the past; and
(c) references to parties, sections, schedules, and exhibits mean
the parties, sections, schedules, and exhibits of and to this
Agreement. The section headings in this Agreement are inserted
only as a matter of convenience, and in no way define, limit,
extend, or interpret the scope of this Agreement or of any
particular section.
(b) Assignment. None of the parties may assign their rights under this
Agreement without the prior written consent of the other parties.
Subject to the foregoing, this Agreement shall be binding on and
inure to the benefit of the parties and their respective
successors and permitted assigns.
(c) No Third-Party Benefits Except as Specified. None of the
provisions of this Agreement are intended to benefit, or to be
enforceable by, any third-party beneficiaries except the related
SPV and any trustee of an SPV or any Administrator.
(d) Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York
without regard to the conflict of laws principles thereof.
(e) Amendment and Waiver. This Agreement may not be modified or
amended except by an instrument in writing signed by the parties
hereto. No waiver of any provision of this Agreement or of any
rights or obligations of any party under this Agreement shall be
effective unless in writing and signed by the party or parties
waiving compliance, and shall be effective only in the specific
instance and for the specific purpose stated in that writing.
(f) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
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(g) Additional Documents. Each party hereto agrees to execute any and
all further documents and writings and to perform such other
actions which may be or become necessary or expedient to
effectuate and carry out this Agreement.
(h) Severability. Any provision hereof which is prohibited or
unenforceable shall be ineffective only to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions hereof.
(i) Integration. This Agreement contains the entire understanding of
the parties with respect to the subject matter hereof. There are
no restrictions, agreements, promises, representations,
warranties, covenants or undertakings with respect to the subject
matter hereof other than those expressly set forth or referred to
herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to its subject
matter.
(j) CHL agrees to provide to the Counterparty prior to January 30,
2006 the methodology for its estimate of maximum probable exposure
represented by the Derivative Agreements and then to provide
notice of any changes to the methodology.
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IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of the
day and year first above written.
CWABS, INC.
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
CWMBS, INC.
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
CWALT, INC.
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
CWHEQ, INC.
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
COUNTRYWIDE HOME LOANS, INC.
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
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BEAR XXXXXXX FINANCIAL PRODUCTS INC.
By: /s/ F. Xxxxx Xxxxxx
----------------------------------------
Name: F. Xxxxx Xxxxxx
Title: DPC Manager
