EXHIBIT 99.5
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The Item 1115 Agreement
Item 1115 Agreement dated as of May 25, 2006 ("Agreement"),
between COUNTRYWIDE HOME LOANS, INC., a New York corporation ("CHL"), CWMBS,
Inc., a Delaware corporation ("CWMBS"), CWALT, Inc., a Delaware corporation
("CWALT") and XXXXXX XXXXXXX CAPITAL SERVICES INC., as counterparty (the
"Counterparty").
RECITALS
WHEREAS, CWMBS and CWALT 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 the SPV or CHL may enter into certain
derivative agreements with respect to the Transaction (each, a "Derivative
Agreement"), including interest rate caps and interest rate or currency swaps,
for purposes of providing certain yield enhancements 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
with respect to any Transaction with respect to which the Counterparty has
agreed to act as derivative Counterparty:
Section 1. Definitions
Company Information: As defined in Section 4(a)(i).
Company Financial Information: As defined in Section 2(a)(ii).
Countrywide Indemnified Party: As defined in Section 4(a).
Counterparty Guarantor: A parent company of the Counterparty who
provides a full and unconditional guaranty to honor the Counterparty's
obligations under any Derivative Agreements.
Counterparty Indemnified Party: As defined in Section 4(b).
Depositor: CWMBS or CWALT, as the case may be, with respect to the
related Registration Statement for which such entity is the registrant for the
applicable Transaction.
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.
Indemnified Party: As defined in Section 4(b).
Master Agreement: The ISDA Master Agreement between the
Counterparty and SPV, 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. Section Section 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.
Sponsor: With respect to any Transaction, CHL or such other person
acting as sponsor (as that term is defined in Regulation AB) as identified to
the Counterparty by CHL at the time that the Counterparty is engaged to act as
derivative counterparty for the relevant Transaction.
Section 2. Information to be Provided by the Counterparty.
(a) Prior to printing the related Prospectus Supplement with respect
to a Transaction for which the Counterparty has agreed to act as
derivative counterparty,
(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, but only to the extent required
by Item 1115(a) of Regulation AB (as determined by CHL or
any other Sponsor of the Transaction). Such information
shall include, at a minimum, the following information:
(A) the Counterparty's legal name (and any d/b/a);
(B) the organizational form of the Counterparty;
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(C) a description of the general character of the business
of the Counterparty;
(D) a description of any affiliation (as set forth in Item
1119) between the Counterparty and any of the
following parties:
(1) The Bank of New York (or any other trustee
identified to the Counterparty by CHL at the
time that the Counterparty is engaged to act as
derivative counterparty for the relevant
Transaction);
(2) any originator contemplated by Item 1110 of
Regulation AB and identified to the Counterparty
by CHL at the time that the Counterparty is
engaged to act as derivative counterparty for
the relevant Transaction;
(3) any enhancement or support provider contemplated
by Items 1114 or 1115 of Regulation AB and
identified to the Counterparty by CHL at the
time that the Counterparty is engaged to act as
derivative counterparty for the relevant
Transaction; and
(4) any other material transaction party
contemplated by Item 1100(d)(1) of Regulation AB
and identified to the Counterparty by CHL at the
time that the Counterparty is engaged to act as
derivative counterparty for the relevant
Transaction.
(ii) if requested by the related Depositor for the purpose of
compliance with Item 1115(b), as a result of the Sponsor's
determination of the significance percentage of the
Derivative Agreement in accordance with Item 1115 of
Regulation AB (the "Significance Percentage"), the
Counterparty shall with respect to a Transaction for which
the Counterparty has agreed to act as derivative
counterparty:
(A) provide the financial data required by Item 1115(b)(1)
or (b)(2) of Regulation AB (as determined by CHL or
any other Sponsor of the Transaction and as specified
by the related Depositor to the Counterparty in
writing) with respect to a Counterparty Guarantor;
provided that, each of the requirements set forth in
Rule 3-10(b) or 3-10(c) of Regulation S-X, as
applicable (or such other requirements under
Regulation AB as may become applicable as a result of
amendments to Regulation AB or interpretive guidance
issued by the Commission (or its staff) uniformly
applicable to registrants of asset-backed securities;
provided, that, CHL has acknowledged that no amendment
is required pursuant to this agreement), shall be
satisfied, including with respect to the parent
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and the Counterparty and the financial statements of
the parent (as though the Counterparty was the issuer
of registered securities) (the "Company Financial
Information"), in a form appropriate for use in the
Prospectus Supplement and in an XXXXX-compatible
format (if not incorporated by reference) and hereby
authorizes the related Depositor to incorporate by
reference the financial data required by Item
1115(b)(2) of Regulation AB; and
(B) if applicable, cause the Counterparty Guarantor's
accountants to issue their consent to the filing or
the incorporation by reference of such financial
statements in the Registration Statement;
provided, however, that in lieu of providing the information
specified in clauses (A) and (B) above, the Counterparty may, in
its sole discretion, cause another entity to replace the
Counterparty pursuant to Section 4(e)(i) below.
(b) Following the Closing Date with respect to a Transaction, but only
with respect to Exchange Act Reports required to be filed for the
applicable SPV,
(i) the Counterparty shall within ten business days after the
applicable event, (1) notify the related Depositor in
writing of any affiliations that develop following the
Closing Date between the Counterparty and any of the parties
specified in Section 2(a)(i)(D) (and any other parties with
respect to the Transaction contemplated by clauses (1)
through (6) of Item 1119(a) of Regulation AB and identified
in writing by the related Depositor at least ten business
days prior to the Counterparty's furnishing such notice) and
(2) provide to the related Depositor a description of the
nature of such affiliations;
(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, in the
Counterparty's sole discretion, 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 format (if not incorporated by reference)
and hereby authorizes the related Depositor to incorporate
by reference the financial data required by Item 1115(b)(2)
of Regulation AB, and (2) if applicable, cause the
Counterparty Guarantor's accountants to issue their consent
to filing or incorporation by reference of such financial
statements in the Exchange Act Reports of the SPV, provided,
however, if CHL or any other Sponsor of the Transaction
determines, following request by the Counterparty, that the
Significance Percentage has been reduced below the
percentage for which such updated financial data and/or
related accountants' consent are required, (x) CHL shall
promptly notify the Counterparty of same and (y) for so long
as the Significance Percentage remains below the percentage
for which such updated financial data and/or related
accountants' consent are required, the
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applicable Depositor shall not include any Company Financial
Information in the Exchange Act Reports of the SPV and the
Counterparty shall not be obligated to provide such updated
financial data or any related accountants' consent; or (B)
assign the Derivative Agreement pursuant to Section 4(e)(i)
below, and
(iii) if the related Depositor requests Company Financial
Information from the Counterparty as a result of the
Sponsor's determination of the significance percentage of
the Derivative Agreement, for the purpose of compliance with
Item 1115(b) of Regulation AB following the Closing Date,
the Counterparty shall promptly upon determination that
Company Financial Information will be required from the
Counterparty, but in no event later than within 5 Business
Days after its receipt of written notice requesting same
from such Depositor, in the Counterparty's sole discretion,
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 format (if
not incorporated by reference) and hereby authorizes the
related Depositor to incorporate by reference the financial
data required by Item 1115(b)(2) of Regulation AB, (2) if
applicable, cause the Counterparty Guarantor's 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 format and if applicable, cause the
Counterparty Guarantor's accountants to issue their consent
to filing or incorporation by reference of such financial
statements in the Exchange Act Reports of the SPV; provided,
however, if CHL or any other Sponsor of the Transaction
determines, following request by the Counterparty, that the
Significance Percentage has been reduced below the
percentage for which such updated financial data and/or
related accountants' consent are required, (x) CHL shall
promptly notify the Counterparty of same and (y) for so long
as the Significance Percentage remains below the percentage
for which such updated financial data and/or related
accountants' consent are required, the applicable Depositor
shall not include any Company Financial Information in the
Exchange Act Reports of the SPV and the Counterparty shall
not be obligated to provide such updated financial data or
any related accountants' consent; or (B) assign the
Derivative Agreement pursuant to Section 4(e)(i) below.
(c) The applicable Depositor will provide the Counterparty with notice
no later than the 15 calendar days following the payment date for
the related Transaction for any distribution period in which the
significance percentage of the Derivative Agreement provided by
Counterparty to any SPV is 9.00% or more in respect of Item
1115(b)(1), or 19.00% or more in respect of Item 1115(b)(2));
provided, however, that the failure to notify the Counterparty
shall not relieve the
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Counterparty of its obligations under this Agreement and shall not
relieve the applicable Depositor of any of its other obligations
under this Agreement.
Section 3. Representations and Warranties and Covenants.
(a) With respect to any Transaction, the Counterparty represents and
warrants to the applicable Depositor, as of the date on which
information is first provided to such Depositor under Section
2(a)(ii), Section 2(b)(ii) or Section 2(b)(iii)(A), that, except
as disclosed in writing to such Depositor prior to such date:
(i) The Counterparty Guarantor is required to file reports with
the Commission pursuant to section 13(a) or 15(d) of the
Exchange Act.
(ii) The Counterparty Guarantor has filed all reports and other
materials required to be filed by such requirements during
the preceding 12 months (or such shorter period that such
party was required to file such reports and materials).
(iii) The reports filed by the Counterparty Guarantor include (or
properly incorporate by reference) the financial statements
of the Counterparty Guarantor.
(iv) The accountants who certify the financial statements and
supporting schedules of the Counterparty Guarantor included
in the Company Financial Information (if applicable) are
independent registered public accountants as required by the
Securities Act.
(v) If applicable, the financial statements included in the
Company Financial Information present fairly the
consolidated financial position of the Counterparty
Guarantor 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 consistent with that of the audited
financial statements of the Counterparty Guarantor.
(vi) 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 applicable requirements of Item 1115(b) of
Regulation AB (in the case of the Company Financial
Information) (including with
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respect to the presentation of the financial information of
the Counterparty Guarantor) 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) If the Counterparty Guarantor has provided Company Financial
Information that is incorporated by reference into the
Registration Statement of the applicable Depositor, the
Counterparty Guarantor, so long as such Depositor is required to
file Exchange Act Reports with respect to the SPV, will file
promptly all financial statements required to be filed by it with
the Commission pursuant to Section 13 or 14 of the Exchange Act.
(c) If at any time the representations and warranties set forth in
3(a)(i) through (iii) are no longer true and correct with respect
to any Transaction, the Counterparty shall provide notice to the
applicable Depositor, and if any Company Financial Information is
required to be included in such Depositor's Registration
Statement, or the Exchange Act Reports of the related SPV, will
provide to such Depositor such Company Financial Information in
XXXXX-compatible format no later than the 20th calendar day of the
month in which any of the representations or warranties in Section
3(a)(i) through (iii) ceased to be correct, it being understood
that providing such Company Financial Information shall be deemed
to cure any breach of such representations and warranties.
(d) The Counterparty agrees that the terms of Section 4(e)(i) 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; provided,
however, that the obligations of the Counterparty under this
Agreement shall not be covered by any guaranty of the Derivative
Agreement.
(e) Upon reasonable request, in connection with either the related
Depositor's request for Company Financial Information from the
Counterparty or CHL or any other Sponsor of the Transaction
determining that the Significance Percentage has been reduced
below the percentage for which such updated financial data and/or
related accountants' consent are required, CHL or any other
Sponsor of the Transaction shall provide the Counterparty its
calculation of the Significance Percentage.
Section 4. Indemnification; Remedies
(a) The Counterparty shall indemnify CHL and the applicable Depositor
for the applicable Transaction, each person responsible for
execution of a certification pursuant to Rule 13a-14(d) or Rule
15d-14(d) under the Exchange Act with respect to the applicable
Transaction; each broker dealer acting as underwriter with respect
to the applicable Transaction, 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) with respect to the
applicable Transaction; and the respective
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present and former directors, officers, employees and agents of
each of the foregoing (each, a "Countrywide Indemnified Party"),
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,
accountants' consent or other material provided in written
or electronic form under Section 2 by or on behalf of the
Counterparty with respect to the applicable Transaction
(collectively, with respect to the applicable Transaction
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;
(ii) any failure by the Counterparty to deliver any information,
report, certification, accountants' consent or other
material or to assign the Derivative Agreement when and as
required under Section 2 for the applicable Transaction; or
(iii) 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 for the applicable Transaction, to
the extent that such breach is not cured by such 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, that is not cured in
accordance with Section 3(c).
In the case of any failure of performance described in clause
(a)(ii) of this Section, the Counterparty shall promptly reimburse
the applicable Depositor and each Person responsible for the
preparation, execution or filing of any report required to be
filed with the Commission with respect to the related SPV, or for
execution of a certification pursuant to Rule 13a-14(d) or Rule
15d-14(d) under the Exchange Act with respect to such SPV, for all
costs reasonably incurred by each such party in order to obtain
the information, report, certification, accountants' consent or
other material not delivered as required by the Counterparty.
(b) CHL and the applicable Depositor shall indemnify the Counterparty,
each person who controls the Counterparty (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 (each, a
"Counterparty Indemnified Party"; and each of the Countrywide
Indemnified Party and the Counterparty Indemnified Party shall be
referred to as the "Indemnified Party"), 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
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sustain arising out of or based upon any untrue statement or
alleged untrue statement of any material fact contained in the
Prospectus Supplement or any free writing prospectus or any other
offering materials with respect to the related Securities or the
omission or alleged omission to state a material fact necessary in
order to make the statements therein not misleading; provided,
however, that the indemnity set forth in this Section 4(b) shall
not apply insofar as such losses, claims, expenses, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of
any material fact contained in the Company Information or the
omission or alleged omission to state in the Company Information a
material fact necessary in order to make the statements therein
not misleading and/or (ii) a breach of the representations set
forth in Sections 3(a) above; provided further, that the foregoing
proviso shall not apply to errors in the copying, filing or use
of, or incorporation by reference of any Company Financial
Information into (unless such error resulted from a breach of the
representations set forth in 3(a)), any registration statement,
prospectus or other offering materials, or Exchange Act Filing,
relating to the Securities or the Transaction.
(c) Promptly after the Indemnified Party receives notice of the
commencement of any such action, the Indemnified Party will, if a
claim in respect thereof is to be made pursuant to this Agreement,
promptly notify the indemnifying party in writing of the
commencement thereof. In case any such action is brought against
the Indemnified Party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the Indemnified Party in
any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the
fees and expenses of any separate counsel retained by the
Indemnified Party except as set forth below); provided, however,
that such counsel shall be reasonably satisfactory to the
Indemnified Party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the Indemnified Party in
an action, the Indemnified Party shall have the right to employ
separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the Indemnified Party would
present such counsel with a conflict of interest, (ii) the actual
or potential defendants in, or targets of, any such action include
both the Indemnified Party and the indemnifying party, and the
Indemnified Party shall have reasonably concluded that there may
be legal defenses available to it that are different from or
additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified
Party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the
Indemnified Party to employ separate counsel at the expense of the
indemnifying party. The indemnifying party will not, without the
prior written consent of the Indemnified Party, settle or
compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in
respect of which
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indemnification or contribution may be sought hereunder (whether
or not the Indemnified Party is an actual or potential party to
such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each Indemnified
Party from all liability arising out of such claim, action, suit
or proceeding and does not include any admission of wrongdoing by
any Indemnified Party. In addition, for so long as the
indemnifying party is covering all costs and expenses of the
Indemnified Party as provided herein, no Indemnified Party will
settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may
be sought hereunder without the consent of the indemnifying party.
(d) Nothing in this agreement shall be construed to allow the
Indemnified Party to recover punitive damages or consequential
damages from the indemnifying party.
(e) (i) With respect to any Transaction, if the Counterparty has
failed to deliver, or elects not to deliver, any information,
report, or accountants' consent when and as required under Section
2, or if there is a material breach by the Counterparty of a
representation or warranty pursuant to Section 3 which (A) is not
cured by the Closing Date for such Transaction (or in the case of
information needed for purposes of printing the Prospectus
Supplement, the date of printing the Prospectus Supplement), in
the case of Company Financial Information required pursuant to
Section 2(a)(ii) or a representation or warranty pursuant to
Section 3 and made as of a date prior to the relevant Closing Date
or (B) is not cured in the lesser of (x) ten calendar days after
the date on which such information, report, or accountants'
consent was required to be delivered or after such material breach
or (y) 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), in the
case of Company Financial Information required pursuant to Section
2(b) or a representation or warranty pursuant to Section 3 and
made as of a date subsequent to the relevant Closing Date and the
Counterparty has not, at its own cost, within the period described
in clause (A) or (B) above, caused another entity (which meets any
applicable ratings threshold in the Derivative Agreement) to
replace the Counterparty as party to the Derivative Agreement that
(i) has signed an agreement with CHL and the applicable Depositor
substantially in the form of this Agreement (except that the
financial information requirements may relate solely to such
successor entity) and (ii) has agreed to deliver any information,
report, certification or accountants' consent when and as required
under Section 2, on terms substantially similar to the Derivative
Agreement, then an Additional Termination Event (as defined in the
Master Agreement) shall immediately and automatically have
occurred under the applicable Derivative Agreement with respect to
such Transaction, with the Counterparty as the sole Affected Party
(as defined in the Master Agreement). In the event of a
termination resulting from such Additional
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Termination Event, a termination payment (if any) shall be payable
by the applicable party as of the Early Termination Date as
determined by the application of Section 6(e)(ii) of the Master
Agreement.
(ii) In the event that the Counterparty or the SPV has found a
replacement entity in accordance with Section 4(e)(i), 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 Agreement. 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) Calculation of Significance Percentage. With respect to any
Derivative Agreement, CHL shall be solely responsible for
calculation of the Significance Percentage.
(b) 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.
(c) 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.
(d) 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, in each case,
not in their individual capacities, but solely in their capacities
as trustee or Administrator, as applicable, to the extent
expressly set forth herein.
(e) 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.
(f) 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
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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.
(g) 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.
(h) 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.
(i) 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.
(j) 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.
(k) CHL agrees to provide to the Counterparty prior to May [o ], 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.
(l) Notices. All notices hereunder shall be in writing and shall be
deemed to have been duly given when delivered by mail or by
facsimile transmission to: (a) in the case of the Counterparty,
Xxxxxx Xxxxxxx Capital Services Inc.
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Foo
Facsimile No.: 000-000-0000
with a copy to:
Xxxxxx Xxxxxxx Capital Services Inc.
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxx, Esq.
Facsimile No.: 000-000-0000
and (b) in the case of CHL and the related Depositor,
-12-
0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: Legal Department
(m) Notwithstanding anything to the contrary in this Agreement, with
respect to any Transaction and the parties to this Agreement that
are a party to such Transaction, the rights and obligations of
such parties shall not apply to, or affect in any way, (a) any
other parties hereto that are not a party to such Transaction or
(b) any other Transaction under this Agreement.
[SIGNATURE PAGE FOLLOWS]
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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.
CWMBS, INC.
By: /s/ Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
CWALT, INC.
By: /s/ Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
COUNTRYWIDE HOME LOANS, INC.
By: /s/ Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
Title: Executive Vice President
XXXXXX XXXXXXX CAPITAL SERVICES INC.
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
