Exhibit 99.9
ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT, dated as of March 30, 2007 ("Assignment
Agreement"), among COUNTRYWIDE HOME LOANS, INC. ("Assignor"), THE BANK OF NEW
YORK ("Assignee"), as Cap Contract Administrator for CWHEQ Revolving Home
Equity Loan Trust, Series 2007-B, pursuant to a Cap Contract Administration
Agreement (the "Cap Contract Administration Agreement") dated as of March 30,
2007, and SWISS RE FINANCIAL PRODUCTS CORPORATION ("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 20, 2007, whose SWISS RE FINANCIAL
PRODUCTS CORPORATION reference number is 1360087, (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 Cap Contract Administrator under the Cap
Contract Administration Agreement; and (b) in no case shall BNY (or any person
acting as successor Cap Contract Administrator under the Cap Contract
Administration Agreement) be personally liable for or on account of any of the
statements, representations, warranties, covenants or obligations stated to be
those of Assignee under the terms of the Assigned Transaction, all such
liability, if any, being expressly waived by Assignor and Remaining Party and
any person claiming by, through or under either such party.
4. Consent and Acknowledgment of Remaining Party. Remaining Party hereby
consents to the assignment and delegation by Assignor to Assignee of all the
rights, duties, and obligations of Assignor under the Assigned Transaction
pursuant to this Assignment Agreement.
5. Governing Agreement. The Assigned Transaction and the Confirmation
shall form a part of, and be subject to, the ISDA Form Master Agreement, as if
Assignee and Remaining Party had executed such agreement on the trade date of
the Transaction (the "Assignee Agreement"). The Confirmation, together with all
other documents referring to the ISDA Form Master Agreement confirming the
transaction entered into between Assignee and Remaining Party, shall form a
part of, and be subject to, the Assignee Agreement. For the purposes of this
paragraph, capitalized terms used herein and not otherwise defined shall have
the meanings assigned in the ISDA Form Master Agreement.
6. Representations. Each party hereby represents and warrants to the
other parties as follows:
(a) It is duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization or incorporation;
(b) It has the power to execute and deliver this Assignment Agreement;
and
(c) Its obligations under this Assignment Agreement constitute its
legal, valid and binding obligations, enforceable in accordance
with their respective terms.
As of the Effective Date, each of Assignor and Remaining Party represents
that no event or condition has occurred that constitutes an Event of Default, a
Potential Event of Default or, to the party's knowledge, a Termination Event
(as such terms are defined in the Confirmation and Assignee Agreement), with
respect to the party, and no such event would occur as a result of the party's
entering into or performing its obligations under this Assignment Agreement.
7. Indemnity. Each of Assignor and Remaining Party hereby agrees to
indemnify and hold harmless Assignee with respect to any and all claims arising
under the Assigned Transaction prior to the Effective Date. Each of Assignee
and Remaining Party (subject to the limitations set forth in paragraph 3 above)
hereby agrees to indemnify and hold harmless Assignor with respect to any and
all claims arising under the Assigned Transaction on or after the Effective
Date.
8. Governing Law. This Assignment Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
2
9. Notices. For the purposes of this Assignment Agreement and Section
12(a) of the ISDA Form Master Agreement of the Assigned Transaction, the
addresses for notices or communications are as follows: (i) in the case of
Assignor, Countrywide Home Loans, Inc., 0000 Xxxx Xxxxxxx, Xxxx Xxxx XX-000,
Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxx Xxxxx, with a copy to the same
address, Attention: Legal Department, or such other address as may be hereafter
furnished in writing to Assignee and Remaining Party; (ii) in the case of
Assignee, The Bank of New York, 000 Xxxxxxx Xxxxxx, 0 Xxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Corporate Trust MBS Administration, CWHEQ, Series 2007-B,
with a copy to The Bank of New York Trust Company. N.A., 000 Xxxxxx, 0xx Xx,
Xxxxxxx, XX 00000, Attention: Structured Finance Services, or such other
address as may be hereafter furnished in writing to Assignor and Remaining
Party; and (iii) in the case of Remaining Party,
Address: 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: Head of Operations
Telex No. 000-000-0000
copy to: 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000
Attention: Legal Department
Telex No: 000-000-0000
such other address as may be hereafter furnished in writing to Assignor
and Assignee.
10. Payments. All payments (if any) remitted by Remaining Party under the
Assigned Transaction shall be made by wire transfer according to the following
instructions:
JPMorgan Chase Bank, N.A.-Houston, TX
ABA #000000000
Account Number #00103409232
Account: Houston Structured Finance Account
F/F/C: CWHEQ 2007-B
11. Counterparts. This Assignment Agreement may be executed and delivered
in counterparts (including by facsimile transmission), each of which when
executed shall be deemed to be an original but all of which taken together
shall constitute one and the same instrument.
3
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement as of the date first above written.
COUNTRYWIDE HOME LOANS, INC.
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Executive Vice President
THE BANK OF NEW YORK, AS CAP CONTRACT
ADMINISTRATOR FOR CWHEQ REVOLVING HOME
EQUITY LOAN TRUST, SERIES 2007-B
By: /s/ Xxxxxxxx Xxxxxxxxxxx
-------------------------------------------
Name: Xxxxxxxx Xxxxxxxxxxx
Title: Vice President
SWISS RE FINANCIAL PRODUCTS CORPORATION
By: /s/ Xxxxx Xxxxx
--------------------------------------------
Name: Xxxxx Xxxxx
Title: Authorized Signatory
4
Exhibit I to 99.9
SWISS RE FINANCIAL PRODUCTS CORPORATION
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000/Phone: (000) 000-0000
DATE: March 30, 2007
TO: Countrywide Home Loans, Inc. ("Party B")
0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: Documentation Unit
FROM: Swiss Re Financial Products Corporation ("Party A")
RE: CAP TRANSACTION - Class A Notes
Our Reference Number: 1360087
Dear Sir or Madam:
The purpose of this letter agreement is to confirm the terms and
conditions of the Transaction entered into between Countrywide Home Loans, Inc.
and Swiss Re Financial Products Corporation (each a "party" and together "the
parties") on the Trade Date specified below (the "Transaction").
This letter agreement constitutes a "Confirmation" and the definitions and
provisions contained in the 2000 ISDA Definitions (the "Definitions") as
published by the International Swaps and Derivatives Association, Inc.,
("ISDA") are incorporated into this Confirmation. In the event of any
inconsistency between the Definitions and this Confirmation, this Confirmation
will govern. This Confirmation will be governed by and subject to the terms and
conditions which would be applicable if, prior to the Trade Date, the parties
had executed and delivered an ISDA Master Agreement (Multicurrency-Cross
Border), in the form published by ISDA in 1992 (the "Master Agreement"), with
the attached Schedule B as the Schedule to the Master Agreement and the
modifications provided below (collectively, the "Agreement"). In the event of
any inconsistency between the provisions of the Master Agreement and this
Confirmation and the attached Schedule B, this Confirmation will govern.
Other capitalized terms used herein (but not otherwise defined) shall have the
meaning specified in that certain Indenture, dated as of March 30, 2007 (the
"Indenture"), among CWHEQ Home Equity Loan Trust, Series 2007-B, as issuer and
The Bank of New York, as Indenture Trustee.
In this Confirmation "Party A" means Swiss Re Financial Products Corporation
and "Party B" means Countrywide Home Loans, Inc.
1. This Confirmation evidences a complete binding agreement between the
parties as to the terms of the Transaction to which this Confirmation relates.
In addition, each party represents to the other party and will be deemed to
represent to the other party on the date on which it enters into a Transaction
that (absent a written agreement between the parties that expressly imposes
affirmative obligations to the contrary for that Transaction):
SRFP Cap Confirmation 1
Ref No.: 1360087
(i) Principal. In the case of Party A, and Party B it is acting as principal
and not as agent when entering into the Transaction.
(ii) Non-Reliance. In the case of both parties, it is acting for its own
account, it has made its own independent decisions to enter into the
Transaction and as to whether the Transaction is appropriate or proper
for it based upon its own judgment and upon advice from such advisors as
it has deemed necessary. It is not relying on any communication (written
or oral) of the other party as investment advice or as a recommendation
to enter into the Transaction; it being understood that information and
explanations related to the terms and conditions of the Transaction shall
not be considered investment advice or a recommendation to enter into the
Transaction. No communication (written or oral) received from the other
party shall be deemed to be an assurance or guarantee as to the expected
results of that Transaction.
(iii) Evaluation and Understanding. It is capable of evaluating and
understanding (on its own behalf or through independent professional
advice), and understands and accepts, the terms, conditions and risks of
the Agreement and the Transaction. It is also capable of assuming, and
assumes, the financial and other risks of the Agreement and the
Transaction.
(iv) Status of Parties. The other party is not acting as an agent, fiduciary
or advisor for it in respect of that Transaction.
2. The terms of the particular Transaction to which this Confirmation
relates are as follows:
Notional Amount: The amount set forth on the attached
Amortization Schedule, Schedule A
Trade Date: March 19, 2007
Effective Date: Xxxxx 00, 0000
Xxxxxxxxxxx Date: November 15, 2012, subject to
adjustment in accordance with the
Following Business Day Convention.
Fixed Amounts:
Fixed Rate Payer: Party B
Fixed Rate Payer Payment Date: March 30, 2007
Fixed Amount: USD 25,000
Floating Amounts:
Floating Rate Payer: Party A
SRFP Cap Confirmation 2
Ref No.: 1360087
Cap Rate: With respect to any Calculation
period, the amount set forth for
such period on Schedule A attached
hereto under the heading Cap Rate (%)
Floating Rate Payer Period End Dates: The
15th day of each month, subject to
adjustment in accordance with the
Following Business Day Convention.
Floating Rate Payer Payment Dates: Two (2) Business Days prior to each
Period End Date, commencing on May
11, 2007
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: One month
Spread: None
Floating Rate Day Count Fraction: Actual/360
Reset Dates: The first day of each Calculation
Period.
Compounding: Inapplicable
Business Days for payment: New York
Calculation Agent: Party A; provided, however, that if
an Event of Default occurs with
respect to Party A, then Party B
shall be entitled to appoint a
financial institution which would
qualify as a Reference Market-maker
to act as Calculation Agent (such
financial institution subject to
Party A's consent).
3. Recording of Conversations
Each party (i) consents to the recording of the telephone conversations of
trading and marketing personnel of the parties, (ii) agrees to obtain any
necessary consent of, and give notice of such recording to, such personnel of
it, and (iii) agrees that recordings may be submitted in evidence in any
proceedings relating to this Agreement or any potential Transaction.
SRFP Cap Confirmation 3
Ref No.: 0000000
4. Account Details:
Account for payments to Party A: JPMorgan Chase Bank
SWIFT: XXXXXX00
Account of: Swiss Re Financial Products
Account No.: 066-911184
ABA# 000000000
Account for payments to Party B: As per Party B's standard settlement
instructions.
5. Offices:
The Office of Party A for
this Transaction is: New York, NY
The Office of Party B for this
Transaction: New York, NY
6. This Agreement may be executed in several counterparts, each of which
shall be deemed an original but all of which together shall constitute one and
the same instrument.
SRFP Cap Confirmation 4
Ref No.: 1360087
Please promptly confirm that the foregoing correctly sets forth the terms
of the Transaction entered into between us by executing this Confirmation and
returning it to us by facsimile to:
Swiss Re Financial Products Corporation
Attention: Derivatives Documentation
Fax: (000) 000-0000 Phone: (000) 000-0000
Swiss Re Financial Products Accepted and confirmed as of the date
Corporation first written:
Countrywide Home Loans, Inc.
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxx Xxxxxxx
------------------------------------ ---------------------------------------
Name: Xxxxx Xxxxx Name: Xxxxx Xxxxxxx
------------------------------------ -------------------------------
Title: Authorized Signatory Title: Executive Vice President
------------------------------------ -------------------------------
SRFP Cap Confirmation 1
Ref No.: 1360087
Schedule A to the Confirmation dated as March 30, 2007
Re: Reference Number: 1360087
Between Swiss Re Financial Products Corporation and Countrywide Home Loans,
Inc. ("Party B").
Amortization Schedule, subject to adjustment in accordance with the Following
Business Day Convention
-----------------------------------------------------------------------
From and To but Notional Amount Cap Rate (%)
including excluding (USD)
-----------------------------------------------------------------------
30-Mar-07 15-May-07 950,000,000.00 8.60529
-----------------------------------------------------------------------
15-May-07 15-Jun-07 918,712,833.00 16.20788
-----------------------------------------------------------------------
15-Jun-07 15-Jul-07 888,456,072.00 17.34219
-----------------------------------------------------------------------
15-Jul-07 15-Aug-07 859,195,784.00 16.20788
-----------------------------------------------------------------------
15-Aug-07 15-Sep-07 830,899,150.00 16.77373
-----------------------------------------------------------------------
15-Sep-07 15-Oct-07 803,534,433.00 17.34219
-----------------------------------------------------------------------
15-Oct-07 15-Nov-07 777,070,943.00 16.20788
-----------------------------------------------------------------------
15-Nov-07 15-Dec-07 751,478,997.00 17.34219
-----------------------------------------------------------------------
15-Dec-07 15-Jan-08 726,729,892.00 16.20788
-----------------------------------------------------------------------
15-Jan-08 15-Feb-08 702,795,871.00 16.77373
-----------------------------------------------------------------------
15-Feb-08 15-Mar-08 679,650,090.00 17.94985
-----------------------------------------------------------------------
15-Mar-08 15-Apr-08 657,266,589.00 15.64203
-----------------------------------------------------------------------
15-Apr-08 15-May-08 635,620,263.00 16.84219
-----------------------------------------------------------------------
15-May-08 15-Jun-08 614,421,992.00 15.72406
-----------------------------------------------------------------------
15-Jun-08 15-Jul-08 593,918,240.00 16.84230
-----------------------------------------------------------------------
15-Jul-08 15-Aug-08 574,085,826.00 15.72417
-----------------------------------------------------------------------
15-Aug-08 15-Sep-08 554,903,093.00 16.29009
-----------------------------------------------------------------------
15-Sep-08 15-Oct-08 536,347,846.00 16.84248
-----------------------------------------------------------------------
15-Oct-08 15-Nov-08 518,399,722.00 15.72436
-----------------------------------------------------------------------
15-Nov-08 15-Dec-08 501,039,419.00 16.84261
-----------------------------------------------------------------------
15-Dec-08 15-Jan-09 484,246,064.00 15.72450
-----------------------------------------------------------------------
15-Jan-09 15-Feb-09 468,002,616.00 16.29043
-----------------------------------------------------------------------
15-Feb-09 15-Mar-09 452,289,006.00 18.06585
-----------------------------------------------------------------------
15-Mar-09 15-Apr-09 437,088,624.00 14.59303
-----------------------------------------------------------------------
15-Apr-09 15-May-09 422,388,461.00 16.84301
-----------------------------------------------------------------------
15-May-09 15-Jun-09 408,164,322.00 15.72492
-----------------------------------------------------------------------
15-Jun-09 15-Jul-09 394,405,725.00 16.84319
-----------------------------------------------------------------------
15-Jul-09 15-Aug-09 381,094,297.00 15.72511
-----------------------------------------------------------------------
15-Aug-09 15-Sep-09 368,218,434.00 16.29107
-----------------------------------------------------------------------
15-Sep-09 15-Oct-09 355,760,355.00 16.84351
-----------------------------------------------------------------------
SRFP Cap Confirmation 2
Ref No.: 1360087
15-Oct-09 15-Nov-09 343,707,863.00 15.72544
-----------------------------------------------------------------------
15-Nov-09 15-Dec-09 332,049,584.00 16.84375
-----------------------------------------------------------------------
15-Dec-09 15-Jan-10 320,768,486.00 15.72569
-----------------------------------------------------------------------
15-Jan-10 15-Feb-10 309,856,260.00 16.29168
-----------------------------------------------------------------------
15-Feb-10 15-Mar-10 299,296,336.00 18.06716
-----------------------------------------------------------------------
15-Mar-10 15-Apr-10 289,079,110.00 14.59440
-----------------------------------------------------------------------
15-Apr-10 15-May-10 279,200,853.00 16.84444
-----------------------------------------------------------------------
15-May-10 15-Jun-10 269,635,553.00 15.72642
-----------------------------------------------------------------------
15-Jun-10 15-Jul-10 260,382,745.00 16.84477
-----------------------------------------------------------------------
15-Jul-10 15-Aug-10 251,426,760.00 15.72677
-----------------------------------------------------------------------
15-Aug-10 15-Sep-10 242,763,240.00 16.29281
-----------------------------------------------------------------------
15-Sep-10 15-Oct-10 234,376,826.00 16.84533
-----------------------------------------------------------------------
15-Oct-10 15-Nov-10 226,261,043.00 15.72735
-----------------------------------------------------------------------
15-Nov-10 15-Dec-10 218,410,102.00 16.84575
-----------------------------------------------------------------------
15-Dec-10 15-Jan-11 210,808,985.00 15.72779
-----------------------------------------------------------------------
15-Jan-11 15-Feb-11 203,455,784.00 16.29388
-----------------------------------------------------------------------
15-Feb-11 15-Mar-11 196,335,703.00 18.06947
-----------------------------------------------------------------------
15-Mar-11 15-Apr-11 189,444,099.00 14.59682
-----------------------------------------------------------------------
15-Apr-11 15-May-11 182,784,344.00 16.84698
-----------------------------------------------------------------------
15-May-11 15-Jun-11 176,327,446.00 15.72908
-----------------------------------------------------------------------
15-Jun-11 15-Jul-11 170,080,819.00 16.84756
-----------------------------------------------------------------------
15-Jul-11 15-Aug-11 164,029,996.00 15.72969
-----------------------------------------------------------------------
15-Aug-11 15-Sep-11 158,176,077.00 16.29587
-----------------------------------------------------------------------
15-Sep-11 15-Oct-11 152,504,704.00 16.84854
-----------------------------------------------------------------------
15-Oct-11 15-Nov-11 147,013,535.00 15.73072
-----------------------------------------------------------------------
15-Nov-11 15-Dec-11 141,709,964.00 16.84927
-----------------------------------------------------------------------
15-Dec-11 15-Jan-12 137,042,100.00 15.73109
-----------------------------------------------------------------------
15-Jan-12 15-Feb-12 132,528,005.00 16.29694
-----------------------------------------------------------------------
15-Feb-12 15-Mar-12 128,162,614.00 17.43969
-----------------------------------------------------------------------
15-Mar-12 15-Apr-12 123,941,026.00 15.16523
-----------------------------------------------------------------------
15-Apr-12 15-May-12 119,858,505.00 16.84926
-----------------------------------------------------------------------
15-May-12 15-Jun-12 115,910,468.00 15.73108
-----------------------------------------------------------------------
15-Jun-12 15-Jul-12 112,092,486.00 16.84926
-----------------------------------------------------------------------
15-Jul-12 15-Aug-12 108,400,273.00 15.73108
-----------------------------------------------------------------------
15-Aug-12 15-Sep-12 104,829,687.00 16.29693
-----------------------------------------------------------------------
15-Sep-12 15-Oct-12 101,376,719.00 16.84926
-----------------------------------------------------------------------
15-Oct-12 15-Nov-12 98,037,496.00 15.73100
-----------------------------------------------------------------------
SRFP Cap Confirmation 3
Ref No.: 1360087
Schedule B to the Confirmation dated as of March 30, 2007
Re: Reference Number: 1360087
Between Swiss Re Financial Products Corporation ("Party A") and Countrywide
Home Loans, Inc. ("Party B").
Part 1. Termination Provisions.
(a) "Specified Entity" means in relation to Party A for the purpose of the
Agreement:
Section 5(a)(v): None.
Section 5(a)(vi): None.
Section 5(a)(vii): None.
Section 5(b)(iv): None.
and in relation to Party B for the purpose of the Agreement:
Section 5(a)(v): None.
Section 5(a)(vi): None.
Section 5(a)(vii): None.
Section 5(b)(iv): None.
(b) "Specified Transaction" will have the meaning specified in Section 14 of
the Agreement.
(c) The "Breach of Agreement" provisions of Section 5(a)(ii) of the Agreement
will be inapplicable to Party B.
(d) The "Credit Support Default" provisions of Section 5(a)(iii) of the
Agreement will be inapplicable to Party B.
(e) The "Misrepresentation" provisions of Section 5(a)(iv) of the Agreement
will be inapplicable to Party B.
(f) The "Default Under Specified Transaction" provisions of Section 5(a)(v) of
the Agreement will be inapplicable to Party A and Party B.
(g) The "Cross Default" provisions of Section 5(a)(vi) of the Agreement will be
inapplicable to Party A and Party B.
(h) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) of the
Agreement will be inapplicable to Party A and Party B.
(i) The "Automatic Early Termination" provision of Section 6(a) of the
Agreement will be inapplicable to Party A and Party B
(j) Payments on Early Termination. For the purpose of Section 6(e) of the
Agreement:
(i) Market Quotation will apply; and
(ii) The Second Method will apply.
SRFP Cap Confirmation 4
Ref No.: 1360087
(k) "Termination Currency" means United States Dollars.
(l) "Additional Termination Event" will not apply, except as provided in Part
5(k) hereof, any confirmation and in the Regulation AB Agreement as defined in
Part 5(m) hereof.
Part 2. Tax Representations.
Payer Representations. For the purpose of Section 3(e) of the Agreement,
Party A will make the following representation and Party B will not make
the following representation:
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from any
payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of the
Agreement) to be made by it to the other party under this Agreement. In
making this representation, it may rely on (i) the accuracy of any
representations made by the other party pursuant to Section 3(f) of the
Agreement, (ii) the satisfaction of the agreement contained in Section
4(a)(i) or 4(a)(iii) of the Agreement and the accuracy and effectiveness of
any document provided by the other party pursuant to Section 4(a)(i) or
4(a)(iii) of the Agreement and (iii) the satisfaction of the agreement of
the other party contained in Section 4(d) of the Agreement, provided that
it shall not be a breach of this representation where reliance is placed on
clause (ii) and the other party does not deliver a form or document under
Section 4(a)(iii) of the Agreement by reason of material prejudice to its
legal or commercial position.
Payee Representations. For the purpose of Section 3(f) of the Agreement,
the following representations are made:
(i) Party A represents that it is a corporation organized under the
laws of the State of Delaware.
(ii) Party B represents that it is a "United States person" as such term
is defined in Section 7701(a)(30) of the Internal Revenue Code of
1986, as amended.
Part 3. Agreement to Deliver Documents.
For the purpose of Sections 4(a)(i) and (ii) of the Agreement, Party A and
Party B agree to deliver the following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are:
-------------------------------------------------------------------------------------------------
Party Required to Form/Document/Certificate Date by Which
Deliver Document to be Delivered
-------------------------------------------------------------------------------------------------
Party A and Party B Any form or document required or Promptly upon reasonable
reasonably requested to allow the other Demand by the other party.
party to make payments under the
Agreement without any deduction or
withholding for or on account of any
Tax, or with such deduction or
withholding at a reduced rate.
-------------------------------------------------------------------------------------------------
SRFP Cap Confirmation 5
Ref No.: 1360087
(b) Other documents to be delivered and covered by the Section 3(d)
representation are:--
------------------------------------------------------------------------------------------------------------------
Party required to deliver Form/Document/or Certificate Date by which to be Covered by Section
delivered 3(d) representation
------------------------------------------------------------------------------------------------------------------
Party A Certified copy of the Board of Concurrently with the Yes
Directors resolution (or execution and delivery of
equivalent authorizing the Confirmation.
documentation) which sets forth
the authority of each signatory
to the Confirmation signing on
its behalf and the authority of
such party to enter into
Transactions contemplated and
performance of its obligations
hereunder.
------------------------------------------------------------------------------------------------------------------
Party A and Party B Incumbency Certificate (or, if Concurrently with the Yes
available the current execution and delivery of
authorized signature book or the Confirmation unless
equivalent authorizing previously delivered and
documentation) specifying the still in full force and
names, titles, authority and effect.
specimen signatures of the
persons authorized to execute
the Confirmation which sets
forth the specimen signatures
of each signatory to the
Confirmation signing on its
behalf.
------------------------------------------------------------------------------------------------------------------
Party A The Guaranty of Swiss Concurrently with the No
Reinsurance Company ("Swiss execution and delivery of
Re"), dated as of the date the Confirmation.
hereof, issued by Swiss Re as
Party A's Credit Support
Provider (in the form annexed
hereto as Exhibit A).
------------------------------------------------------------------------------------------------------------------
Party B The Indenture. Concurrently with the No
execution and delivery of
the Confirmation.
------------------------------------------------------------------------------------------------------------------
SRFP Cap Confirmation 6
Ref No.: 1360087
Part 4. Miscellaneous.
(a) Addresses for Notices. For the purposes of Section 12(a) of the Agreement:
Addresses for notices or communications to Party A and to Party B shall
be those set forth on the first page of the Confirmation.
(b) Process Agent. For the purpose of Section 13(c) of the Agreement:
Party A appoints as its Process Agent: None.
Party B appoints as its Process Agent: None.
(c) Offices. With respect to Party A, the provisions of Section 10(a) of the
Agreement will apply.
(d) Multibranch Party. For the purpose of Section 10(c) of the Agreement:
Party A is not a Multibranch Party. Party B is not a Multibranch Party.
(e) Credit Support Document. Details of any Credit Support Document: Guaranty
of Swiss Re dated as of the date hereof in the form annexed hereto as
Exhibit A.
(f) Credit Support Provider.
Credit Support Provider means in relation to Party A: Swiss Re.
Credit Support Provider means in relation to Party B: None.
(g) Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York (without reference to
conflicts of law provisions thereof).
(h) Netting of Payments. Subparagraph (ii) of Section 2(c) of the Agreement
will apply to the Transaction evidenced by the Confirmation.
(i) "Affiliate" will have the meaning specified in Section 14 of the Agreement.
(j) Jurisdiction. Section 13(b) of the Agreement is hereby amended by: (i)
deleting in the second line of subparagraph (i) thereof the word "non-":
and (ii) deleting the final paragraph thereof.
Part 5. Other Provisions.
(a) Modifications to the Agreement. Section 3(a) of the Agreement shall be
amended to include the following additional representations after paragraph
3(a)(v):
(vi) Eligible Contract Participant etc. It is an "eligible contract
participant" as defined in Section 1a(12) of the U.S. Commodity Exchange
Act (7 U.S.C. 1a), as amended by the Commodity Futures Modernization Act
of 2000 and the Transaction evidenced hereby has been the subject of
individual negotiations and is intended to be exempt from, or otherwise
not subject to regulation thereunder.
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(b) Waiver of Right to Trial by Jury. Each party hereby irrevocably waives
any and all rights to trial by jury in any legal proceeding arising out
of or relating to this Agreement or any Transaction hereunder.
(c) Absence of Litigation. In Section 3(c) of the Agreement the words "or any
of its Affiliates" shall be deleted.
(d) Tax Event. In Section 5(b)(ii)(y) of the Agreement the words ", or there
is a substantial likelihood that it will," shall be deleted.
(e) Fully-paid Party Protected.
Notwithstanding the terms of Sections 5 and 6 of the Agreement, if Party
B has satisfied its payment obligations under Section 2(a)(i) of the
Agreement, then unless Party A is required pursuant to appropriate
proceedings to return to Party B or otherwise returns to Party B upon
demand of Party B any portion of such payment, the occurrence of an event
described in Section 5(a) of the Agreement with respect to Party B with
respect to this Transaction shall not constitute an Event of Default or
Potential Event of Default with respect to Party B as the Defaulting
Party. For purposes of the Transaction to which this Confirmation
relates, Party B's only payment obligation under Section 2(a)(i) of the
Agreement is to pay the Fixed Amount on the Fixed Rate Payer Payment
Date.
(f) Proceedings.
Party A shall not institute against or cause any other person to
institute against, or join any other person in instituting against, CWHEQ
Home Equity Loan Trust, Series 2007-B, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings
under any federal or state bankruptcy, dissolution or similar law, for a
period of one year and one day following indefeasible payment in full of
the CWHEQ Home Equity Loan Trust, Series 2007-B, Class A Notes (the
"Securities").
(g) Set-off.
The provisions for Set-off set forth in Section 6(e) of the Agreement
shall not apply for purposes of this Transaction.
(h) Section 1(c)
For purposes of Section 1(c) of the Agreement, this Transaction shall be
the sole Transaction under the Agreement.
(i) [Reserved]
(j) Amendment to ISDA Form.
The "Failure to Pay or Deliver" provision in Section 5(a)(i) of the
Agreement is hereby amended by deleting the word "third" in the third
line thereof and inserting the word "first" in place thereof.
(k) Regulation AB Compliance.
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Party A and Party B agree that the terms of the Item 1115 Agreement dated
as of January 26, 2006 (the "Regulation AB Agreement"), between
Countrywide Home Loans, Inc., CWABS, Inc., CWMBS, Inc., CWALT, Inc.,
CWHEQ, Inc. and Swiss Re Financial Products Corporation shall be
incorporated by reference into this Agreement so that Party B shall be an
express third party beneficiary of the Regulation AB Agreement. A copy of
the Regulation AB Agreement is attached hereto as Annex B.
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Ref No.: 1360087
Exhibit A
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GUARANTY
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To: The Bank of New York, not in an individual capacity, but solely as Cap
Contract Administrator for CWHEQ Home Equity Loan Trust, Series 2007-B (Class A
Notes) (the "Rated Securities").
1. The undersigned, SWISS REINSURANCE COMPANY, a Swiss company (the
"Guarantor"), hereby absolutely and unconditionally guarantees the prompt
payment as and when due of all obligations of its indirect, wholly-owned
subsidiary SWISS RE FINANCIAL PRODUCTS CORPORATION, a Delaware corporation
("THE GUARANTEED SUBSIDIARY") under, in connection with or ancillary to a long
form confirmation (Reference Number 1360087) dated as of March 30, 2007 between
the Beneficiary and THE GUARANTEED SUBSIDIARY as amended or restated from time
to time (the "Agreements") which support the issuance of the Rated Securities.
In this Guarantee these obligations are referred to as the "Guaranteed
Obligations". This Guarantee is given solely for the benefit of, and is
enforceable only by, the Beneficiary or any trustee as assignee of the
Beneficiary to which this Guarantee has been validly assigned in accordance
with applicable law and who is acting as trustee for the investors in the Rated
Securities.
2. This Guarantee constitutes a Guarantee of payment and not of collection
and is not conditional or contingent upon any attempts to collect from, or
pursue or exhaust any rights or remedies against, THE GUARANTEED SUBSIDIARY. A
demand for payment hereunder may at the Beneficiary's option be made in writing
addressed to the Chief Financial Officer of the Guarantor. This Guarantee is
not however dependent in any way on the manner of the demand for payment. Delay
in making a claim will not affect the Guarantor's obligations under this
Guarantee unless the relevant legal limitation period has expired.
3. This Guarantee constitutes, and is intended by the Guarantor to
constitute, an unlimited non-accessory undertaking (,,unbeschrankte, nicht
akzessorische Verpflichtung") within the meaning of Article 111 of the Swiss
Code of Obligations (,CO`) and is not a mere surety (,,Burgschaft") within the
meaning of Article 492 et seq of the CO.
4. Notwithstanding any reference to the obligations of THE GUARANTEED
SUBSIDIARY, the Guarantor's obligations under this Guarantee are its absolute
and independent obligations as a primary obligor. Payment of a claim hereunder
is required as soon as the Guaranteed Obligations are due and payable.
5. To the extent that any event or circumstance would give rise to any
legal or equitable discharge, defence or other rights of the Guarantor under
this Guarantee, but which event or circumstance would not give rise to any
discharge, defence or other rights of THE GUARANTEED SUBSIDIARY under the
Agreements, the Guarantor hereby fully waives, subject to paragraph 7 below,
such discharge, defence, or other rights and the Guarantor's liability
hereunder shall continue as if such event or circumstance had not arisen.
6. The Guarantor further agrees, subject to paragraph 7 below, that to the
extent that any event or circumstance gives rise to any legal or equitable
discharge, defence or other rights available to both the Guarantor under the
Guarantee and THE GUARANTEED SUBSIDIARY under the Agreements, the Guarantor
hereby agrees to waive such discharge, defense or other rights against the
Beneficiary, until such time as all the Guaranteed Obligations in relation to
the same event or circumstance have been fully met as required to protect
investors in the Rated Securities.
7. Notwithstanding any other provision of this Guarantee, the Guarantor
will have the right, prior to making any payment under this Guarantee, to (a)
assert such rights of offset as are set forth in the Agreements to the extent
that such rights relate to amounts due and payable by the Beneficiary to THE
GUARANTEED SUBSIDIARY and not to amounts which are subject to dispute; and (b)
defend manifestly fraudulent claims under this Guarantee made by the
Beneficiary.
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Ref No.: 1360087
8. This Guarantee will continue in full force and effect in relation to all
Guaranteed Obligations until all the Guaranteed Obligations have been satisfied
in full. For the avoidance of doubt, all Guaranteed Obligations entered into by
THE GUARANTEED SUBSIDIARY during the term of this Guarantee shall be honoured
in accordance with this Guarantee and shall be binding on the Guarantor and its
successors and assigns. This Guarantee may be amended only as necessary to
reflect changes to the Guaranteed Obligations which are validly agreed to by
the Beneficiary (or the trustee as assignee of the Beneficiary) in accordance
with the terms of the Rated Securities, including any requirement to obtain the
consent of some or all of the investors in the Rated Securities.
9. If any payment by THE GUARANTEED SUBSIDIARY is avoided, recaptured or
reduced as a result of insolvency or any similar event affecting creditors
rights generally having occurred in respect of THE GUARANTEED SUBSIDIARY, the
Guarantor's liability under this Guarantee shall continue as if the avoided,
recaptured or reduced payment had not occurred.
10. Upon payment by the Guarantor to the Beneficiary of any amount due under
this Guarantee, the Guarantor shall be entitled to require the assignment to it
of the rights of the Beneficiary against THE GUARANTEED SUBSIDIARY to the
extent satisfied by such payment, and the Beneficiary will take at the
Guarantor's expense such steps as the Guarantor may reasonably require to
implement such assignment. The Guarantor shall not exercise any rights against
THE GUARANTEED SUBSIDIARY which it may acquire in consequence of such payment
and assignment unless and until all the Guaranteed Obligations to the
Beneficiary shall have been paid in full.
11. This Guarantee is governed and will be construed in accordance with
Swiss law. The exclusive place of jurisdiction for any legal proceeding
hereunder shall be Zurich, Switzerland.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be executed in
its name as of the 30th day of March, 2007.
SWISS REINSURANCE COMPANY
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Ref No.: 1360087
