EXHIBIT 99.7
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Item 1115 Agreement dated as of July 25, 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 Credit Suisse International, 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, on the closing date (the "Closing Date") of a Transaction
referenced in Exhibit A hereto, 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 caps and
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
Business Days: Any day other than (i) a Saturday or a Sunday or
(ii) a day on which banking institutions in the State of New York are
authorized or obligated by law or executive order to be closed.
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 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 and
that is the most recent disclosure available to investors at the time of
pricing.
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.
Transaction: A securities offering involving CWABS, CWMBS, CWALT
or CWHEQ in which the Counterparty provides a Derivative Agreement that
acknowledges and incorporates the terms of this Agreement in accordance with
Section 5(b) hereof.
Section 2. Information to be Provided by or Actions of the Counterparty.
The Counterparty hereby covenants to perform the following with
respect to each Transaction:
(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:
(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;
(ii) if requested by the related Depositor (after the aggregate
"significance percentage", determined absent manifest error,
of all derivative instruments provided by Counterparty and
any of its affiliates to the SPV is 8.00% or more in
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respect of Item 1115(b)(1), or 18.00% or more in respect of
Item 1115(b)(2)) for the purpose of compliance with Item
1115(b) with respect to a Transaction, the Counterparty
shall:
(A) provide the financial data required by and which
complies in all material respects with Item 1115(b)(1)
or (b)(2) of Regulation AB (as applicable) with
respect to 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 Microsoft Word or Microsoft Excel form; and
(B) if applicable, cause its accountants to issue their
consent to the filing or incorporation by reference of
such financial statements in the Registration
Statement.
(b) Following the Closing Date with respect to a Transaction,
(i) if the Counterparty provided Company Financial Information
to the related Depositor for the Prospectus Supplement,
within ten Business Days of the release of any updated
financial data, the Counterparty shall (1) provide current
Company Financial Information as required by and which
complies in all material respects with Item 1115(b) of
Regulation AB to the related Depositor in Microsoft Word or
Microsoft Excel 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; and
(ii) if the related Depositor requests Company Financial
Information from the Counterparty (after the aggregate
"significance percentage", determined absent manifest error,
of all derivative instruments provided by Counterparty and
any of its affiliates to the SPV is 8.00% or more in respect
of Item 1115(b)(1), or 18.00% or more in respect of Item
1115(b)(2)), for the purpose of compliance with Item 1115(b)
of Regulation AB following the Closing Date, the
Counterparty shall upon ten Business Days written notice
either (A), (1) provide current Company Financial
Information as required by and which complies in all
material respects with Item 1115(b) of Regulation AB to the
related Depositor in Microsoft Word or Microsoft Excel 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 ten Business Days of the release of any
updated financial data, provide current Company Financial
Information as required by and which complies in all
material respects with Item 1115(b) of Regulation AB to the
related Depositor in Microsoft Word or Microsoft Excel 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 or obtain
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a unconditional guarantee of a parent company as provided in
Section 2(c) below.
(c) If the Counterparty has failed to deliver any information, report,
or accountants' consent when and as required under Section 2(a) or
(b), which continues unremedied for the lesser of five Business
Days after the date on which such information, report, or
accountants' consent was required to be delivered and such period
(as specified in a prior written notice by the applicable
Depositor or SPV to the Counterparty) 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), then the Counterparty shall, at its own cost, within
the period in which the applicable Exchange Act Report for which
such information is required can be timely filed, either cause
another entity to replace the Counterparty as party to the
Derivative Agreement or obtain a full and unconditional guaranty
of a parent company to honor the Counterparty's obligations under
the Derivative Agreement; provided that, with respect to the
guaranty of a parent company, if the financial information is not
separately presented for the derivative counterparty then each of
the requirements set forth in Rule 3-10(b) or 3-10(c) of
Regulation S-X, as applicable, shall be satisfied, including with
respect to the parent, the Counterparty and the financial
statements of the parent (as though the Counterparty were the
issuer of registered securities), in each case to or from, as
applicable, an entity that (i) has signed an agreement with CHL
and the Depositors substantially in the form of this Agreement and
(ii) has agreed to deliver any information, report, certification
or accountants' consent when and as required under this Section 2
hereof, on terms substantially similar to the Derivative
Agreement. Counterparty agrees that the related Derivative
Agreement shall provide that failure to take the actions provided
in this Section 2(c) shall be an Additional Termination Event (as
defined in the Master Agreement) as provided in the related Master
Agreement for each Transaction.
(d) In the event that the Counterparty or the SPV has found a
replacement entity in accordance with Section 2(c), 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 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)(i) or
Section 2(b)(ii)(A), that, except as disclosed in writing the
related Depositor prior to such date:
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(i) If applicable, 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
consistent with that of the audited financial statements of
the Counterparty.
(iii) If applicable, 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) If applicable, the Counterparty represents and warrants to the
related Depositor, as of the date on which it has obtained a full
and unconditional guaranty of a parent company to honor
Counterparties obligations under the Derivative Agreement as a
remedy to failing to deliver any information, report, or
accountants' consent when and as required under Section 2(a) or
(b), that the requirements of Rule 3-10(b) or 3-10(c) of
Regulation S-X, as applicable, have been satisfied with respect to
the omission of the financial information of the Counterparty
(assuming the Counterparty is treated as the Issuer of the
registered security under Rule 3-10).
Section 4. Indemnification; Remedies
(a) The Counterparty shall indemnify CHL and the related Depositor,
each person responsible for execution of a certification pursuant
to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act; each
person who controls any of such parties (within the meaning of
Section 15 of the Securities Act and Xxxxxxx 00 xx xxx
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Xxxxxxxx Xxx); 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,
accountants' consent or other material provided in written
or electronic form under Section 2(a) or (b) 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 failure by the Counterparty to comply with Section 2;
provided, however, that notwithstanding anything to the
contrary herein such indemnification shall not cover any
failure by the Counterparty to provide Company Financial
Information while the aggregate "significance percentage",
of all derivative instruments provided by Counterparty and
any of its affiliates to the SPV is below 10.00% in respect
of Item 1115(b)(1), or below 20.00% in respect of Item
1115(b)(2).
In the case of any failure of performance described in clause
(a)(ii) of this Section, the Counterparty shall promptly reimburse
the related Depositor and 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 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) Any failure by the Counterparty to deliver any information,
report, accountants' consent or other material when and in any
case only as required under Section 2(a) or (b) 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), shall 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).
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Section 5. Miscellaneous.
(a) Company Financial Information. Notwithstanding anything to the
contrary contained herein, if Regulation AB is amended, or the
Commission has issued interpretive guidance uniformly applicable
to registrants of Asset-Backed Securities allowing the
presentation of the financial information required by Item 1115 of
Regulation AB with respect to an affiliate of the Counterparty (a
"Permitted Entity") rather than the Counterparty and any
affiliated entities providing derivatives to the SPV, "Company
Financial Information" shall be deemed to refer to the financial
information of such Permitted Entity provided the Counterparty has
received written confirmation from CHL that no amendment to this
Agreement is necessary. The parties shall reasonably cooperate
with respect to any amendments to this Agreement to reflect such
amendment or interpretation.
(b) Incorporation by Reference. The Counterparty agrees that upon its
consent 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. For avoidance of doubt, any
Transaction where the Counterparty does not consent to the
incorporation by reference of this Agreement shall not be governed
by this Agreement.
(c) 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.
(d) 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.
(e) 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.
(f) Governing Law. This Agreement and, to the fullest extent permitted
by applicable law, all matters arising out of or related in any
way to 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.
(g) Waiver of Trial By Jury. Insofar as is permitted by law, each
party irrevocably waives any and all rights to trial by jury in
any legal proceeding in connection
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with this Agreement, and acknowledges that this waiver is a
material inducement to the other party's entering into this
Agreement hereunder.
(h) Jurisdiction. With respect to any suit, action or proceeding
relating to this Agreement, each party irrevocably submits to the
jurisdiction of courts in the State of New York and the United
States District Court located in the Borough of Manhattan in New
York City.
(i) 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.
(j) 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.
(k) 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 reasonably necessary or expedient
to effectuate and carry out this Agreement.
(l) 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.
(m) 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.
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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/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title:
CWMBS, INC.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title:
CWALT, INC.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title:
CWHEQ, INC.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title:
COUNTRYWIDE HOME LOANS, INC.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title:
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CREDIT SUISSE INTERNATIONAL
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Authorized Signatory
By: /s/ Xxxxx X. Xxxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxxx
Title: Authorized Signatory
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EXHIBIT A
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Transaction covered by this Agreement
1. CWMBS, Inc. CHL Mortgage Pass-Through Trust 2006-13
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