SCHEDULE to the Master Agreement dated as of June 8, 2007 between BNP PARIBAS (“Party A”), and THE BANK OF NEW YORK, not in its individual or corporate capacity but solely as Swap Contract Administrator for CWABS Asset-Backed Certificates Trust 2007-9...
EXHIBIT
99.4
(Multicurrency-Cross
Border)
SCHEDULE
to
the
dated
as
of June 8, 2007
between
BNP
PARIBAS (“Party A”),
and
THE
BANK OF NEW YORK, not in its individual or corporate capacity but solely as
Swap
Contract
Administrator
for CWABS Asset-Backed Certificates Trust
2007-9 (“Party B”)
All
terms used herein and not otherwise defined are given their meaning in the
Pooling and Servicing Agreement for CWABS Asset-Backed Certificates
Trust 2007-9 dated as of May 1, 2007
among CWABS, Inc., as depositor, Park Granada LLC, as a seller, Park Monaco
Inc., as a seller, Park Sienna LLC, as a seller, Countrywide Home Loans, Inc.,
as a seller, Countrywide Home Loans Servicing LP, as master servicer, The Bank
of New York, as trustee, and The Bank of New York Trust Company, N.A., as
co-trustee (the “Pooling and Servicing Agreement”).
Part
1: Termination Provisions
For
the
purposes of this Agreement:
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(a)
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“Specified
Entity” will not apply to Party A or Party B for any
purpose.
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(b)
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“Specified
Transaction” will not apply to Party A or Party B for any
purpose.
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(c)
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Events
of Default.
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The
statement below that an Event of Default will apply to a specific party means
that upon the occurrence of such an Event of Default with respect to such party,
the other party shall have the rights of a Non-defaulting Party under Section
6
of this Agreement; conversely, the statement below that such event will not
apply to a specific party means that the other party shall not have such
rights.
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(i)
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The
“Failure to Pay or Deliver” provisions of Section 5(a)(i)
will apply to Party A and will apply to Party B; provided, however,
that Section 5(a)(i) is hereby amended by replacing the word
“third” with the word “first”.
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(ii)
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The
“Breach of Agreement” provisions of Section 5(a)(ii) will
apply to Party A and will not apply to Party
B.
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(iii)
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The
“Credit Support Default” provisions of Section 5(a)(iii)
will apply to Party A and will not apply to Party B except that Section
5(a)(iii)(1) will apply to Party B solely in respect of Party B’s
obligations under Paragraph 3(b) of the Credit Support Annex; provided,
however, that notwithstanding anything to the contrary in Section
5(a)(iii)(1), any failure by Party A to comply with or perform any
obligation to be complied with or performed by Party A under the
Credit
Support Annex shall not constitute an Event of Default under Section
5(a)(iii) unless (i) a Xxxxx’x Second Trigger Ratings Event has occurred
and been continuing for 30 or more Local Business Days or (ii) an
S&P
Required Ratings Event has occurred and been continuing for 10 or
more
Local Business Days.
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(iv)
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The
“Misrepresentation” provisions of Section 5(a)(iv) will
apply to Party A and will not apply to Party
B.
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(v)
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The
“Default under Specified Transaction” provisions of
Section 5(a)(v) will not apply to Party A and will not apply to Party
B.
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(vi)
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The
“Cross Default” provisions of Section 5(a)(vi) will apply
to Party A and will not apply to Party B. For purposes of
Section 5(a)(vi), solely with respect to Party
A:
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“Specified
Indebtedness” will have the meaning specified in Section 14,except that such
term shall not include obligations in respect of deposits received in the
ordinary course of Party A’s banking business.
“Threshold
Amount” means with respect to Party A an amount equal to three percent (3%) of
the Shareholders’ Equity of Party A or, if applicable, the Eligible Guarantor of
Party A.
“Shareholders’
Equity” means with respect to an entity, at any time, the sum (as shown in the
most recent annual audited financial statements of such entity) of (i) its
capital stock (including preferred stock) outstanding, taken at par value,
(ii)
its capital surplus and (iii) its retained earnings, minus (iv) treasury stock,
each to be determined in accordance with generally accepted accounting
principles in the country in which Party A or, if applicable, the Eligible
Guarantor of Party A is organized.
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(vii)
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The
“Bankruptcy” provisions of Section 5(a)(vii) will apply
to Party A and will apply to Party B except that the provisions of
Section
5(a)(vii)(2), (6) (to the extent that such provisions refer to any
appointment contemplated or effected by the Pooling and Servicing
Agreement or any appointment to which Party B has not become subject),
(7)
and (9) will not apply to Party B; provided that, with respect to
Party B
only, (i) Section 5(a)(vii)(4) is hereby amended by adding after
the words
“against it” the words “(excluding any proceeding or petition instituted
or presented by Party A or its Affiliates)” and (ii) Section 5(a)(vii)(8)
is hereby amended by deleting the words “to (7) (inclusive)” and inserting
in lieu thereof “, (3), (4) as amended, (5) and (6) as
amended”.
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(viii)
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The
“Merger Without Assumption” provisions of Section
5(a)(viii) will apply to Party A and will not apply to Party
B.
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(d)
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Termination
Events.
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The
statement below that a Termination Event will apply to a specific party means
that upon the occurrence of such a Termination Event, if such specific party
is
the Affected Party with respect to a Tax Event, the Burdened Party with respect
to a Tax Event Upon Merger (except as noted below) or the non-Affected Party
with respect to a Credit Event Upon Merger, as the case may be, such specific
party shall have the right to designate an Early Termination Date in accordance
with Section 6 of this Agreement; conversely, the statement below that such
an
event will not apply to a specific party means that such party shall not have
such right; provided, however, with respect to “Illegality” the statement that
such event will apply to a specific party means that upon the occurrence of
such
a Termination Event with respect to such party, either party shall have the
right to designate an Early Termination Date in accordance with Section 6 of
this Agreement.
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(i)
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The
“Illegality” provisions of Section 5(b)(i) will apply to
Party A and will apply to Party B.
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(ii)
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The
“Tax Event” provisions of Section 5(b)(ii) will apply to
Party A except that, for purposes of the application of Section 5(b)(ii)
to Party A, Section 5(b)(ii) is hereby amended by deleting the words
“(x)
any action taken by a taxing authority, or brought in a court of
competent
jurisdiction, on or after the date on which a Transaction is entered
into
(regardless of whether such action is taken or brought with respect
to a
party to this Agreement) or (y)” and the “Tax Event”
provisions of Section 5(b)(ii) will apply to Party
B.
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(iii)
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The
“Tax Event Upon Merger” provisions of Section 5(b)(iii)
will apply to Party A and will apply to Party B, provided that
Party A
shall not be entitled to designate an Early Termination Date by
reason of
a Tax Event upon Merger in respect of which it is the Affected
Party.
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2
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(iv)
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The
“Credit Event Upon Merger” provisions of Section 5(b)(iv)
will not apply to Party A and will not apply to Party
B.
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(e)
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The
“Automatic Early Termination” provision of Section 6(a)
will not apply to Party A and will not apply to Party
B.
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(f)
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Payments
on Early Termination. For the purpose of Section 6(e)
of this Agreement:
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(i)
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Market
Quotation will apply, provided, however, that, if an Early Termination
Date has been designated by Party B in respect of a Derivative Provider
Trigger Event, the following provisions will
apply:
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(A)
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The
definition of Market Quotation in Section 14 shall be deleted in
its
entirety and replaced with the
following:
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“Market
Quotation” means, with respect to one or more Terminated
Transactions, a Firm Offer which is (1) made by a Reference Market-maker that
is
an Eligible Replacement, (2) for an amount that would be paid to Party B
(expressed as a negative number) or by Party B (expressed as a positive number)
in consideration of an agreement between Party B and such Reference Market-maker
to enter into a Replacement Transaction and (3) made on the basis that Unpaid
Amounts in respect of the Terminated Transaction or group of Transactions are
to
be excluded but, without limitation, any payment or delivery that would, but
for
the relevant Early Termination Date, have been required (assuming satisfaction
of each applicable condition precedent) after that Early Termination Date is
to
be included.
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(B)
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The
definition of Settlement Amount shall be deleted in its entirety
and
replaced with the following:
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“Settlement
Amount” means, with respect to any Early Termination Date, an
amount (as determined by Party B) equal to:
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(a)
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If
a Market Quotation for the relevant Terminated Transaction or group
of
Terminated Transactions is accepted by Party B so as to become legally
binding on or before the day falling ten Local Business Days after
the day
on which the Early Termination Date is designated, or such later
day as
Party B may specify in writing to Party A, but in either case no
later
than one Local Business Day prior to the Early Termination Date (such
day,
the “Latest Settlement Amount Determination Day”), the Termination
Currency Equivalent of the amount (whether positive or negative)
of such
Market Quotation;
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(b)
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If,
on the Latest Settlement Amount Determination Day, no Market Quotation
for
the relevant Terminated Transaction or group of Terminated Transactions
has been accepted by Party B so as to become legally binding and
one or
more Market Quotations have been communicated to Party B and remain
capable of becoming legally binding upon acceptance by Party B, the
Settlement Amount shall equal the Termination Currency Equivalent
of the
amount (whether positive or negative) of the lowest of such Market
Quotations (for the avoidance of doubt, the lowest of such Market
Quotations shall be the lowest Market Quotation of such Market Quotations
expressed as a positive number or, if any of such Market Quotations
is
expressed as a negative number, the Market Quotation expressed as
a
negative number with the largest absolute value);
or
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3
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(c)
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If,
on the Latest Settlement Amount Determination Day, no Market Quotation
for
the relevant Terminated Transaction or group of Terminated Transactions
is
accepted by Party B so as to become legally binding and no Market
Quotations have been communicated to Party B and remain capable of
becoming legally binding upon acceptance by Party B, the Settlement
Amount
shall equal Party B’s Loss (whether positive or negative and without
reference to any Unpaid Amounts) for the relevant Terminated Transaction
or group of Terminated
Transactions.
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(C)
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If
Party B requests Party A in writing to obtain Market Quotations,
Party A
shall use its reasonable efforts to do so before the Latest Settlement
Amount Determination Day.
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(D)
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If
the Settlement Amount is a negative number, Section 6(e)(i)(3) shall
be
deleted in its entirety and replaced with the
following:
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“(3)
Second Method and Market Quotation. If the Second Method and Market
Quotation apply, (I) Party B shall pay to Party A an amount equal to the
absolute value of the Settlement Amount in respect of the Terminated
Transactions, (II) Party B shall pay to Party A the Termination Currency
Equivalent of the Unpaid Amounts owing to Party A and (III) Party A shall pay
to
Party B the Termination Currency Equivalent of the Unpaid Amounts owing to
Party
B; provided, however, that (x) the amounts payable under the immediately
preceding clauses (II) and (III) shall be subject to netting in accordance
with
Section 2(c) of this Agreement and (y) notwithstanding any other provision
of
this Agreement, any amount payable by Party A under the immediately preceding
clause (III) shall not be netted-off against any amount payable by Party B
under
the immediately preceding clause (I).”
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(E)
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At
any time on or before the Latest Settlement Amount Determination
Day at
which two or more Market Quotations have been communicated to Party
B and
remain capable of becoming legally binding upon acceptance by Party
B,
Party B shall be entitled to accept only the lowest of such Market
Quotations (for the avoidance of doubt, the lowest of such Market
Quotations shall be the lowest Market Quotation of such Market Quotations
expressed as a positive number or, if any of such Market Quotations
is
expressed as a negative number, the Market Quotation expressed as
a
negative number with the largest absolute
value).
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(ii)
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The
Second Method will apply.
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(g)
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“Termination
Currency” means USD.
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(h)
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Additional
Termination Events. Additional Termination Events will
apply as provided in Part 5(c).
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Part
2: Tax Representations
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(a)
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Tax
Representations.
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(i)
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Payer
Representations. For the purpose of Section 3(e) of
this Agreement:
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(A)
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Party
A makes the following
representation(s):
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4
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 this Agreement) to be
made
by it to the other party under this Agreement. In making this
representation, it may rely on: the accuracy of any representations made by
the
other party pursuant to Section 3(f) of this Agreement; (ii) the satisfaction
of
the agreement contained in Section 4(a)(i) or 4(a)(iii) of this 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 this Agreement; and (iii) the
satisfaction of the agreement of the other party contained in Section 4(d)
of
this 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) by reason of material prejudice to
its
legal or commercial position.
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(B)
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Party
B makes the following
representation(s):
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None.
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(ii)
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Payee
Representations. For the purpose of Section 3(f) of
this Agreement:
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(A)
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Party
A makes the following
representation(s):
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It
is a
“foreign person” within the meaning of the applicable U.S. Treasury Regulations
concerning information reporting and backup withholding tax (as in effect on
January 1, 2001), unless Party A provides written notice to Party B that it
is
no longer a foreign person. In respect of any Transaction it enters into through
an office or discretionary agent in the United States or which otherwise is
allocated for United States federal income tax purposes to such United States
trade or business, each payment received or to be received by it under such
Transaction will be effectively connected with its conduct of a trade or
business in the United States.
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(B)
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Party
B makes the following
representation(s):
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None.
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(b)
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Tax
Provisions.
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(i)
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Gross
Up. Section 2(d)(i)(4) shall not apply to Party B as X
and Section 2(d)(ii) shall not apply to Party B as Y, in each case
such
that Party B shall not be required to pay any additional amounts
referred
to therein.
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(ii)
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Indemnifiable
Tax. The definition of “Indemnifiable Tax” in Section
14 is deleted in its entirety and replaced with the
following:
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“Indemnifiable
Tax” means, in relation to payments by Party A, any Tax and, in
relation to payments by Party B, no Tax.
Part
3: Agreement to Deliver Documents
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(a)
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Tax
forms, documents or certificates to be delivered
are:
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5
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Party
required to deliver document
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Form/Document/Certificate
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Date
by which to be delivered
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Party
A and Party B
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Any
document required or reasonably requested to allow the other party
to make
payments under this Agreement without any deduction or withholding
for or
on the account of any Tax or with such deduction or withholding at
a
reduced rate.
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Promptly
after the earlier of (i) reasonable demand by either party or (ii)
within
30 days of the execution of this
Agreement.
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(b)
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Other
Documents to be delivered are (any document to be delivered below
via
internet shall be deemed to be furnished in writing for purposes
of
Section 3(d) of the
Agreement):
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Party
required to deliver document
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Form/Document/Certificate
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Date
by which to be delivered
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Covered
by Section 3(d) representation
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Party
A and Party B
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Any
documents required or reasonably requested by the receiving party
to
evidence authority of the delivering party or its Credit Support
Provider,
if any, to execute and deliver this Agreement, any Confirmation and
any
Credit Support Documents to which it is a party, and to evidence
the
authority of the delivering party or its Credit Support Provider
to
perform its obligations under this Agreement, such Confirmation and/or
Credit Support Document, as the case may be.
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Upon
execution.
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Yes
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Party
A and Party B
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A
certificate of an authorized officer of the party, as to the incumbency
and authority of the respective officers of the party signing this
Agreement, any relevant Credit Support Document or any Confirmation,
as
the case may be.
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Upon
execution
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Yes
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Party
A
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Annual
Report of Party A containing consolidated financial statements certified
by independent certified public accountants and prepared in accordance
with generally accepted accounting principles in the country in which
Party A is organized and delivered via internet at
xxxx://xxx.xxxxxxxxxx.xxx/
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Annually,
after becoming publicly available
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Yes
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Party
A
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An
opinion of counsel to such party reasonably satisfactory in form
and
substance to the other party regarding the enforceability of this
Agreement, any Confirmation and any Credit Support Documents to which
it
is a party.
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Upon
execution
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No
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6
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Party
required to deliver document
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Form/Document/Certificate
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Date
by which to be delivered
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Covered
by Section 3(d) representation
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Party
B
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Executed
copy of the Pooling and Servicing Agreement
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Upon
the filing of the Pooling and Servicing Agreement on the Security
and
Exchange Commission’s XXXXX system
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Yes
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Part
4: Miscellaneous
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(a)
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Addresses
for Notices. For the purposes of Section 12(a) of this
Agreement:
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Party
A:
Address
for notices or communications to Party A:-
BNP
Paribas,
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Legal and Transaction Management Group – ISDA
Telephone
No.: (000) 000-0000
Facsimile
No.: (000) 000-0000
With
a
copy to:
BNP
Paribas, Paris, 0 Xxx Xxxxxxxx, 00000 Xxxxx
Legal
and
Transaction Management Group – ISDA
Telephone
No: (33) (0) 0 0000 0000
Facsimile
No: (33) (0) 0 0000 0000 / 7511
Party
B:
Address
for notices or communications to Party B:
Address:
The Bank of New York
000
Xxxxxxx Xxxxxx – 0X Xxxxx
Xxx
Xxxx,
XX 00000
Attention:
Corporate Trust Administration MBS Administration, CWABS, Series
2007-9
Telephone
No.: (000) 000-0000
Facsimile
No.: (000) 000-0000
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(b)
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Process
Agent. For the purposes of Section 13(c) of this
Agreement:
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Party
A
appoints as its Process Agent: Not Applicable.
Party
B
appoints as its Process Agent: Not Applicable.
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(c)
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Offices.
The provisions of Section 10(a) will not apply to this
Agreement.
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(d)
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Multibranch
Party. For the purpose of Section 10(c) of this
Agreement:
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Party
A
is not a Multibranch Party.
Party
B
is not a Multibranch Party.
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(e)
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Calculation
Agent. The Calculation Agent is Party A; provided however,
if an Event of Default occurs and is continuing 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,
the
cost for which shall be borne by Party
A.
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(f)
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Credit
Support Document. Credit Support Document
means
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Party
A:
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The
Credit Support Annex and any guarantee in support of Party A’s obligations
under this Agreement.
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Party
B:
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The
Credit Support Annex, solely in respect of Party B’s obligations under
Paragraph 3(b) of the Credit Support
Annex.
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7
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(g)
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Credit
Support Provider.
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Party
A:
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The
guarantor under any guarantee in support of Party A’s obligations under
this Agreement.
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Party
B:
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None.
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(h)
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(i)
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Netting
of Payments. Subparagraph (ii) of Section 2(c) of this
Agreement will apply to all
Transactions.
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(j)
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“Affiliate”
will have the meaning specified in Section 14 of this Agreement,
provided,
however, that Party B shall be deemed to have no Affiliates for purposes
of this Agreement, including for purposes of Section
6(b)(ii).
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Part
5: Other Provisions
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(a)
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Definitions.
Unless otherwise specified in a Confirmation, this Agreement
and
each Transaction under this Agreement are subject to the 2000 ISDA
Definitions as published and copyrighted in 2000 by the International
Swaps and Derivatives Association, Inc. (the
“Definitions”) and will be governed in all relevant
respects by the provisions set forth in the Definitions, without
regard to
any amendment to the Definitions subsequent to the date
hereof. The provisions of the Definitions are hereby
incorporated by reference in and shall be deemed a part of this Agreement,
except that (i) references in the Definitions to a “Swap Transaction”
shall be deemed references to a “Transaction” for purposes of this
Agreement and (ii) references to a “Transaction” in this Agreement shall
be deemed references to a “Swap Transaction” for purposes of the
Definitions.
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(b)
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Amendments
to ISDA Master Agreement.
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(i)
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Single
Agreement. Section 1(c) is hereby amended by the
adding the words “including, for the avoidance of doubt, the Credit
Support Annex” after the words “Master
Agreement”.
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(ii)
|
Conditions
Precedent.
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Section
2(a)(iii) is hereby amended by adding the following at the end
thereof:
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Notwithstanding
anything to the contrary in Section 2(a)(iii)(1), if an Event of Default with
respect to Party B or Potential Event of Default with respect to Party B has
occurred and been continuing for more than 30 Local Business Days and no Early
Termination Date in respect of the Affected Transactions has occurred or been
effectively designated by Party A, the obligations of Party A under Section
2(a)(i) shall cease to be subject to the condition precedent set forth in
Section 2(a)(iii)(1) with respect to such specific occurrence of such Event
of
Default or such Potential Event of Default (the “Specific
Event”); provided, however, for the avoidance of doubt, the obligations
of Party A under Section 2(a)(i) shall be subject to the condition precedent
set
forth in Section 2(a)(iii)(1) (subject to the foregoing) with respect to any
subsequent occurrence of the same Event of Default with respect to Party B
or
Potential Event of Default with respect to Party B after the Specific Event
has
ceased to be continuing and with respect to any occurrence of any other Event
of
Default with respect to Party B or Potential Event of Default with respect
to
Party B that occurs subsequent to the Specific Event.
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(iii)
|
Change
of Account. Section 2(b) is hereby amended by the
addition of the following after the word “delivery” in the first line
thereof:
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“to
another account in the same legal and tax jurisdiction as the original
account”.
8
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(iv)
|
Representations. Section
3 is hereby amended by adding at the end thereof the following subsection
(g):
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“(g)
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Relationship
Between Parties.
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(1)
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Nonreliance. (i)
It is not relying on any statement or representation of the other
party
regarding any Transaction (whether written or oral), other than the
representations expressly made in this Agreement or the Confirmation
in
respect of that Transaction and (ii) it has consulted with its own
legal,
regulatory, tax, business, investment, financial and accounting advisors
to the extent it has deemed necessary and it has made its own investment,
hedging and trading decisions based upon its own judgment and upon
any
advice from such advisors as it has deemed necessary and not upon
any view
expressed by the other party.
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(2)
|
Evaluation
and Understanding. (i) It has the capacity to evaluate
(internally or through independent professional advice) each Transaction
and has made its own decision to enter into each Transaction and
(ii) It
understands the terms, conditions and risks of each Transaction and
is
willing and able to accept those terms and conditions and to assume
those
risks, financially and otherwise.
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(3)
|
Purpose. It
is entering into each Transaction for the purposes of managing its
borrowings or investments, hedging its underlying assets or liabilities
or
in connection with a line of
business.
|
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(4)
|
Status
of Parties. The other party is not acting as an agent,
fiduciary or advisor for it in respect of any
Transaction.
|
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(5)
|
Eligible
Contract Participant. It is an “eligible swap participant” as
such term is defined in Section 35.1(b)(2) of the regulations (17
C.F.R.
35) promulgated under, and an “eligible contract participant” as defined
in Section 1(a)(12) of, the Commodity Exchange Act, as
amended.”
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(v)
|
Transfer
to Avoid Termination Event. Section 6(b)(ii) is hereby
amended by (i) deleting the words “or if a Tax Event Upon Merger occurs
and the Burdened Party is the Affected Party,” and (ii) deleting the words
“to transfer” and inserting the words “to effect a Permitted Transfer” in
lieu thereof.
|
|
|
(vi)
|
Jurisdiction.
Section 13(b) is hereby amended by: (i) deleting in the
second
line of subparagraph (i) thereof the word "non-", (ii) deleting “; and”
from the end of subparagraph 1 and inserting “.” in lieu thereof and (iii)
deleting the final paragraph
thereof.
|
|
|
(vii)
|
Local
Business Day. The definition of Local Business Day in
Section 14 is hereby amended by the addition of the words “or any Credit
Support Document” after “Section 2(a)(i)” and the addition of the words
“or Credit Support Document” after
“Confirmation”.
|
|
(c)
|
Additional
Termination Events. The following Additional
Termination Events will apply:
|
|
|
(i)
|
Xxxxx’x
First Ratings Trigger Collateral Failure. If (A) it is
not the case that a Xxxxx’x Second Trigger Ratings Event has occurred and
been continuing for 30 or more Local Business Days and (B) Party
A has
failed to comply with or perform any obligation to be complied with
or
performed by Party A in accordance with the Credit Support Annex,
then an
Additional Termination Event shall have occurred with respect to
Party A
and Party A shall be the sole Affected Party with respect to such
Additional Termination Event.
|
9
|
|
(ii)
|
S&P
Approved Ratings Collateral Failure. If (A) it is not
the case that an S&P Required Ratings Event has occurred and been
continuing for 10 or more Local Business Days and (B) Party A has
failed
to comply with or perform any obligation to be complied with or performed
by Party A in accordance with the Credit Support Annex, then an Additional
Termination Event shall have occurred with respect to Party A and
Party A
shall be the sole Affected Party with respect to such Additional
Termination Event.
|
|
|
(iii)
|
Xxxxx’x
Second Ratings Trigger Replacement. If (A) a Xxxxx’x
Second Trigger Ratings Event has occurred and been continuing for
30 or
more Local Business Days and (B) at least one Eligible Replacement
has
made a Firm Offer that would, assuming the occurrence of an Early
Termination Date, qualify as a Market Quotation (as defined in Part
1(f)(i) above) and such Firm Offer remains an offer that will become
legally binding upon such Eligible Replacement upon acceptance, then
an
Additional Termination Event shall have occurred with respect to
Party A
and Party A shall be the sole Affected Party with respect to such
Additional Termination Event.
|
|
|
(iv)
|
S&P
Required Ratings Failure. If (A) an S&P Required
Ratings Event has occurred and been continuing for 60 or more calendar
days and (B) Party A has failed to either (i) effect a Permitted
Transfer
or (ii) procure an Eligible Guarantee, then an Additional Termination
Event shall have occurred with respect to Party A and Party A shall
be the
sole Affected Party with respect to such Additional Termination
Event.
|
|
|
(v)
|
Supplemental
Pooling and Servicing Agreement Without Party A’s Prior Written
Consent. If Party B enters into an amendment and or supplement
to
the Pooling and Servicing Agreement or other modification to the
Pooling
and Servicing Agreement that could reasonably be expected to have
a
material adverse effect on Party A (excluding, for the avoidance
of doubt,
any amendment to the Pooling and Servicing Agreement that is entered
into
solely for the purpose of appointing a successor master servicer
or
trustee) without the prior written consent (such consent not to be
unreasonably withheld) of Party A where such consent is required
under the
Pooling and Servicing Agreement, then an Additional Termination Event
shall have occurred with respect to Party B and Party B shall be
the sole
Affected Party with respect to such Additional Termination
Event. Party B agrees with Party A that Party A shall be an
express third-party beneficiary of the Pooling and Servicing
Agreement.
|
|
|
(vi)
|
[Reserved]
|
|
|
(vii)
|
[Reserved]
|
|
|
(viii)
|
For
the avoidance of doubt, in the event that (A) a Xxxxx’x Second Trigger
Ratings Event has occurred and been continuing for 30 or more Local
Business Days and (B) an S&P Required Ratings Event has occurred and
been continuing for 60 or more calendar days, Party B shall be entitled
to
declare an Early Termination Date pursuant to Section 6(b)(iv) and
Part
5(c)(iv) for so long as such S&P Required Ratings Event is continuing,
notwithstanding the absence of a Firm Offer from an Eligible
Replacement.
|
|
(d)
|
Required
Ratings Downgrade Event. In the event that neither
Party A nor any Eligible Guarantor of Party A under an Eligible Guarantee
has credit ratings that satisfy the S&P Required Ratings Threshold and
the Xxxxx’x Second Trigger Ratings Threshold (such event, a
“Required Ratings Downgrade Event”), then Party A shall,
as soon as reasonably practicable and so long as a Required Ratings
Downgrade Event is in effect, at its own expense, using commercially
reasonable efforts, either (A) effect a Permitted Transfer or (B)
procure
an Eligible Guarantee.
|
|
(e)
|
Regulation
AB Compliance. Party A and Party B hereby agree that the
terms of the Item 1115 Agreement dated as of March 15, 2006 (the
“Regulation AB Agreement”), between Countrywide Home Loans, Inc., CWABS,
Inc., CWMBS, Inc., CWALT, Inc., CWHEQ, Inc. and BNP Paribas 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 Exhibit A.
|
10
|
(f)
|
Transfers.
|
|
|
(i)
|
Section
7 is hereby amended to read in its entirety as
follows:
|
“Neither
Party A nor Party B is permitted to assign, novate or transfer (whether by
way
of security or otherwise) as a whole or in part any of its rights, obligations
or interests under the Agreement or any Transaction without (a) the prior
written consent of the other party, (b) prior written notice to Xxxxx’x and (c)
satisfaction of the Rating Agency Condition with respect to S&P, except
that:
|
|
(a)
|
a
party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer
of
all or substantially all its assets to, another entity (but without
prejudice to any other right or remedy under this
Agreement);
|
|
|
(b)
|
a
party may make such a transfer of all or any part of its interest
in any
amount payable to it from a Defaulting Party under Section 6(e);
and
|
|
|
(c)
|
Party
A may (at its own cost) transfer all or substantially all of its
rights
and obligations with respect to this Agreement to any other entity
that is
an Eligible Replacement (i) pursuant to Section 6(b)(ii) or the Regulation
AB Agreement (subject to satisfaction of the Rating Agency Condition
with
respect to S&P) or (ii) in connection with a Replacement Transaction
or a Permitted Transfer”.
|
|
|
(ii)
|
If
an Eligible Replacement has made a Firm Offer (and such Firm Offer
remains
an offer that will become legally binding upon such Eligible Replacement
upon acceptance) to be the transferee pursuant to a transfer in accordance
with clause (c) above, Party B shall, at Party A’s written request and at
Party A’s expense, take any reasonable steps required to be taken by Party
B to effect such transfer.
|
|
(g)
|
Non-Recourse. Party
A acknowledges and agrees that, notwithstanding any provision in
this
Agreement to the contrary, the obligations of Party B hereunder are
limited recourse obligations of Party B, payable solely from the
Swap
Trust and the proceeds thereof, in accordance with the priority of
payments and other terms of the Pooling and Servicing Agreement and
that
Party A will not have any recourse to any of the directors, officers,
employees, shareholders or affiliates of the Party B with respect
to any
claims, losses, damages, liabilities, indemnities or other obligations
in
connection with any transactions contemplated hereby. In the event
that
the Swap Trust and the proceeds thereof should be insufficient to
satisfy
all claims outstanding following the realization of the account held
by
the Swap Trust and the proceeds thereof, any claims against or obligations
of Party B under this Agreement and any Confirmation hereunder still
outstanding shall be extinguished and thereafter not
revive. Party B shall not have liability for any failure or
delay in making a payment hereunder to Party A due to any failure
or delay
in receiving amounts in the account held by the Swap Trust from the
Trust
Fund created pursuant to the Pooling and Servicing
Agreement.
|
|
(h)
|
Timing
of Payments by Party B upon Early
Termination. Notwithstanding anything to the contrary
in Section 6(d)(ii), to the extent that all or a portion (in either
case,
the “Unfunded Amount”) of any amount that is calculated as being due in
respect of any Early Termination Date under Section 6(e) from Party
B to
Party A will be paid by Party B from amounts other than any upfront
payment paid to Party B by an Eligible Replacement that has entered
into a
Replacement Transaction with Party B, then such Unfunded Amount shall
be
due on the next subsequent Distribution Date following the date on
which
the payment would have been payable as determined in accordance with
Section 6(d)(ii) and on any subsequent Distribution Dates until paid
in
full (or if such Early Termination Date is the final Distribution
Date, on
such final Distribution Date); provided, however, that if the date
on
which the payment would have been payable as determined in accordance
with
Section 6(d)(ii) is a Distribution Date, such payment will be payable
on
such Distribution Date.
|
|
(i)
|
Rating
Agency Notifications. Notwithstanding any other
provision of this Agreement, no Early Termination Date shall be
effectively designated hereunder by Party B and no transfer of any
rights
or obligations under this Agreement shall be made by either party
unless
each Swap Rating Agency has been provided prior written notice of
such
designation or transfer.
|
11
|
(j)
|
No
Set-off. Except as expressly provided for in Section
2(c), Section 6, Paragraph 8 of the Credit Support Annex or Part
1(f)(i)(D) hereof and notwithstanding any other provision of this
Agreement or any other existing or future agreement, each party
irrevocably waives any and all rights it may have to set off, net,
recoup
or otherwise withhold or suspend or condition payment or performance
of
any obligation between it and the other party hereunder against any
obligation between it and the other party under any other
agreements. Section 6(e) shall be amended by deleting the
following sentence: “The amount, if any, payable in respect of an Early
Termination Date and determined pursuant to this Section will be
subject
to any Set-off.”.
|
|
(k)
|
Amendment. Notwithstanding
any provision to the contrary in this Agreement, no amendment of
either
this Agreement or any Transaction under this Agreement shall be permitted
by either party unless each of the Swap Rating Agencies has been
provided
prior written notice of the same and the Rating Agency Condition
is
satisfied with respect to S&P.
|
|
(l)
|
Notice
of Certain Events or Circumstances. Each Party agrees,
upon learning of the occurrence or existence of any event or condition
that constitutes (or that with the giving of notice or passage of
time or
both would constitute) an Event of Default or Termination Event with
respect to such party, to promptly give notice of such event or condition
to the other Party and each Swap Rating Agency; provided that failure
to
provide notice of such event or condition pursuant to this Part 5(l)
shall
not constitute an Event of Default or a Termination
Event.
|
|
(m)
|
Proceedings. No
Relevant Entity shall institute against, or cause any other person
to
institute against, or join any other person in instituting against
Party
B, the Swap Trust or the Trust Fund formed pursuant to the Pooling
and
Servicing Agreement, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under
any
federal or state bankruptcy or similar law for a period of one year
(or,
if longer, the applicable preference period) and one day following
payment
in full of the Certificates. This provision will survive the
termination of this Agreement.
|
|
(n)
|
Swap
Contract Administrator Liability Limitations. Party A
and Party B agree to the following: (a) The Bank of New York (“BNY”) is
entering into this Agreement not in its individual or corporate capacity,
but solely in its capacity as Swap Contract Administrator for
CWABS
Asset-Backed Certificates Trust 2007-9; (b) in no case shall BNY
(or any
person acting as successor Swap Contract Administrator for CWABS
Asset-Backed Certificates Trust 2007-9) be personally liable for
or on
account of any of the statements, representations, warranties, covenants
or obligations stated to be those of Party B under the terms of this
Agreement, all such liability, if any, being expressly waived by
Party A
and any person claiming by, through or under Party A; and (c) recourse
against Party B shall be limited to the assets available under the
Pooling
and Servicing Agreement. This Part 5(n) shall survive the termination
of
this Agreement.
|
|
(o)
|
Severability. If
any term, provision, covenant or condition of this Agreement, or
the
application thereof to any party or circumstance, shall be held to
be
invalid or unenforceable (in whole or in part) in any respect, the
remaining terms, provisions, covenants and conditions hereof shall
continue in full force and effect as if this Agreement had been executed
with the invalid or unenforceable portion eliminated, so long as
this
Agreement as so modified continues to express, without material change,
the original intentions of the parties as to the subject matter of
this
Agreement and the deletion of such portion of this Agreement will
not
substantially impair the respective benefits or expectations of the
parties; provided, however, that this severability provision shall
not be
applicable if any provision of Section 2, 5, 6 or 13 (or any definition
or
provision in Section 14 to the extent it relates to, or is used in
or in
connection with, any such Section) shall be so held to be invalid
or
unenforceable.
|
The
parties shall endeavor to engage in good faith negotiations to replace any
invalid or unenforceable term, provision, covenant or condition with a valid
or
enforceable term, provision, covenant or condition, the economic effect of
which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
12
|
(p)
|
[Reserved]
|
|
(q)
|
Escrow
Payments. If (whether by reason of the time difference
between the cities in which payments are to be made or otherwise)
it is
not possible for simultaneous payments to be made on any date on
which
both parties are required to make payments hereunder, either party
may at
its option and in its sole discretion notify the other party that
payments
on that date are to be made in escrow. In this case deposit of
the payment due earlier on that date shall be made by 2:00 pm (local
time
at the place for the earlier payment) on that date with an escrow
agent
selected by the notifying party, accompanied by irrevocable payment
instructions (i) to release the deposited payment to the intended
recipient upon receipt by the escrow agent of the required deposit
of any
corresponding payment payable by the other party on the same date
accompanied by irrevocable payment instructions to the same effect
or (ii)
if the required deposit of the corresponding payment is not made
on that
same date, to return the payment deposited to the party that paid
it into
escrow. The party that elects to have payments made in escrow
shall pay all costs of the escrow
arrangements.
|
|
(r)
|
Consent
to Recording. Each party hereto consents to the
monitoring or recording, at any time and from time to time, by the
other
party of any and all communications between trading, marketing and
operations personnel of the parties and their Affiliates, waives
any
further notice of such monitoring or recording and agrees to notify
such
personnel of such monitoring or
recording.
|
|
(s)
|
Waiver
of Jury Trial. Each party waives any right it may have
to a trial by jury in respect of any in respect of any suit, action
or
proceeding relating to this Agreement or any Credit Support
Document.
|
|
(t)
|
[Reserved]
|
|
(u)
|
[Reserved]
|
|
(v)
|
Additional
representations.
|
|
|
(i)
|
Capacity. Party
A represents to Party B on the date on which Party A enters into
this
Agreement that it is entering into the Agreement and each Transaction
as
principal and not as agent of any person. Party B represents to
Party A on the date on which Party B enters into this Agreement that
it is
entering into the Agreement and each Transaction in its capacity
as Swap
Contract Administrator.
|
|
(w)
|
Acknowledgements.
|
|
|
(i)
|
Substantial
financial transactions. Each party hereto is hereby
advised and acknowledges as of the date hereof that the other party
has
engaged in (or refrained from engaging in) substantial financial
transactions and has taken (or refrained from taking) other material
actions in reliance upon the entry by the parties into the Transactions
being entered into on the terms and conditions set forth herein and
in the
Pooling and Servicing Agreement relating to such Transactions, as
applicable. This paragraph shall be deemed repeated on the trade
date of
each Transaction.
|
|
|
(ii)
|
Bankruptcy
Code. Subject to Part 5(m), without limiting the
applicability, if any, of any other provision of the U.S. Bankruptcy
Code
as amended (the “Bankruptcy Code”) (including without limitation Sections
362, 546, 556 and 560 thereof and the applicable definitions in Section
101 thereof), the parties acknowledge and agree that all Transactions
entered into hereunder will constitute “forward contracts” or “swap
agreements” as defined in Section 101 of the Bankruptcy Code or “commodity
contracts” as defined in Section 761 of the Bankruptcy Code, that the
rights of the parties under Section 6 of this Agreement will constitute
contractual rights to liquidate Transactions, that any margin or
collateral provided under any margin, collateral, security, pledge
or
similar agreement related hereto will constitute a “margin payment” as
defined in Section 101 of the Bankruptcy Code and that the parties
are
entities entitled to the rights under, and protections afforded by,
Sections 362, 546, 556 and 560 of the Bankruptcy
Code.
|
|
(x)
|
[Reserved]
|
13
|
(y)
|
[Reserved]
|
|
(z)
|
Additional
Definitions.
|
As
used
in this Agreement, the following terms shall have the meanings set forth below,
unless the context clearly requires otherwise:
“Derivative
Provider Trigger Event” means (i) an Event of Default with respect
to which Party A is a Defaulting Party, (ii) a Termination Event (other than
an
Illegality or a Tax Event) with respect to which Party A is the sole Affected
Party or (iii) an Additional Termination Event with respect to which Party
A is
the sole Affected Party.
“Eligible
Guarantee” means an unconditional and irrevocable guarantee of all
present and future obligations (for the avoidance of doubt, not limited to
payment obligations) of Party A or an Eligible Replacement to Party A under
this
Agreement that is provided by an Eligible Guarantor as principal debtor rather
than surety and that is directly enforceable by Party B, the form and substance
of which guarantee are subject to the Rating Agency Condition with respect
to
S&P and either (A) a law firm has given a legal opinion confirming that none
of the guarantor’s payments to Party B under such guarantee will be subject to
deduction or withholding for Tax and such opinion has been delivered to Moody’s,
(B) such guarantee provides that, in the event that any of such guarantor’s
payments to Party B are subject to deduction or withholding for Tax, such
guarantor is required to pay such additional amount as is necessary to ensure
that the net amount actually received by Party B (free and clear of any Tax
collected by withholding) will equal the full amount Party B would have received
had no such deduction or withholding been required or (C) in the event that
any
payment under such guarantee is made net of deduction or withholding for Tax,
Party A is required, under Section 2(a)(i), to make such additional payment
as
is necessary to ensure that the net amount actually received by Party B from
the
guarantor will equal the full amount Party B would have received had no such
deduction or withholding been required.
“Eligible
Guarantor” means an entity that (A) has credit ratings from
S&P at least equal to the S&P Required Ratings Threshold and (B) has
credit ratings from Moody’s at least equal to the Moody’s Second Trigger Ratings
Threshold; provided, for the avoidance of doubt, that an Eligible Guarantee
of
an Eligible Guarantor with credit ratings below the S&P Approved Ratings
Threshold or the Moody’s First Trigger Ratings Threshold, as applicable, will
not cause a Collateral Event (as defined in the Credit Support Annex) to cease
to occur or continue.
“Eligible
Replacement” means an entity that (A) (i) (a) has credit ratings
from S&P at least equal to the S&P Required Ratings Threshold and (b)
has credit ratings from Moody’s at least equal to the Moody’s Second Trigger
Ratings Threshold; provided, for the avoidance of doubt, that an Eligible
Replacement with credit ratings below the S&P Approved Ratings Threshold or
the Moody’s First Trigger Ratings Threshold, as applicable, will not cause a
Collateral Event (as defined in the Credit Support Annex) to cease to occur
or
continue or (ii) provides an Eligible Guaranty from an Eligible Guarantor and
(B) that has executed an Item 1115 Agreement with the Depositor.
“Financial
Institution” means, with respect to any Relevant Entity, a bank,
broker/dealer, insurance company, structured investment company or derivative
product company.
“Firm
Offer” means an offer which, when made, was capable of becoming
legally binding upon acceptance.
“Moody’s”
means Xxxxx’x Investors Service, Inc., or any successor thereto.
14
“Moody’s
First Trigger Ratings Threshold” means, with respect to any
Relevant Entity, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of “A2” and a
short-term unsecured and unsubordinated debt rating from Moody’s of “Prime-1” or
(ii) if such entity does not have a short-term unsecured and unsubordinated
debt
rating or counterparty rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of
“A1”.
“Moody’s
Second Trigger Ratings Event” means that neither Party A nor
any Eligible Guarantor of Party A under an Eligible Guarantee has credit
ratings from Moody’s at least equal to the Moody’s Second Trigger Ratings
Threshold.
“Moody’s
Second Trigger Ratings Threshold” means, with respect to any
Relevant Entity, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of “A3” and a
short-term unsecured and unsubordinated debt rating from Moody’s of “Prime-2” or
(ii) if such entity does not have a short-term unsecured and unsubordinated
debt
rating from Moody’s, a long-term unsecured and unsubordinated debt rating or
counterparty rating from Moody’s of “A3”.
“Permitted
Transfer” means a transfer by novation by Party A to a transferee
(the “Transferee”) of all, but not less than all, of Party A’s rights,
liabilities, duties and obligations under this Agreement, with respect to which
transfer each of the following conditions is satisfied: (a) the
Transferee is an Eligible Replacement that is a recognized dealer in interest
rate swaps organized under the laws of the United States of America or a
jurisdiction located in the United States of America (or another jurisdiction
reasonably acceptable to Party B), (b) an Event of Default, Termination Event
or
Additional Termination Event would not occur as a result of such transfer,
(c)
pursuant to a written instrument (the “Transfer Agreement”), the Transferee
acquires and assumes all rights and obligations of Party A under the Agreement
and the relevant Transactions, (d) Party B shall have determined, in its sole
discretion, acting in a commercially reasonable manner, that such Transfer
Agreement is effective to transfer to the Transferee all, but not less than
all,
of Party A’s rights and obligations under the Agreement and all relevant
Transactions; (e) Party A will be responsible for any costs or expenses incurred
in connection with such transfer (including any cost of entering into a Transfer
Agreement); (f) Moody’s has been given prior written notice of such transfer and
the Rating Agency Condition is satisfied with respect to S&P and (g) such
transfer otherwise complies with the terms of the Pooling and Servicing
Agreement.
“Rating
Agency Condition” means, with respect to any proposed act
hereunder and each Swap Rating Agency specified in connection with such proposed
act, a condition that is satisfied when the party proposing such act consults
with each of the specified Swap Rating Agencies and receives from each such
Swap
Rating Agency a prior written confirmation (including by facsimile transmission)
that the proposed action would not cause a downgrade or withdrawal of the
then-current rating of any Certificates.
“Regulation
AB Agreement” shall have the meaning assigned thereto in Part
5(e).
“Relevant
Entity” means Party A, a guarantor under an Eligible Guarantee or
an Eligible Replacement, as applicable.
“Replacement
Transaction” means, with respect to any Terminated Transaction or
group of Terminated Transactions, a transaction or group of transactions that
(i) would have the effect of preserving for Party B the economic equivalent
of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated Transaction
or group of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have been required after that date and (ii)
has
terms which are substantially the same as this Agreement, including, without
limitation, rating triggers, Regulation AB compliance and credit support
documentation, save for the exclusion of provisions relating to Transactions
that are not Terminated Transactions, as determined by Party B in its sole
discretion, acting in a commercially reasonable manner.
“Required
Ratings Downgrade Event” shall have the meaning assigned thereto
in Part 5(d).
15
“S&P”
means Standard & Poor's Rating Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor thereto.
“S&P
Approved Ratings Threshold” means, only with respect to a Relevant
Entity that is a Financial Institution, a short-term unsecured and
unsubordinated debt rating from S&P of “A-1” or, if such entity does not
have a short-term unsecured and unsubordinated debt rating from S&P, a
long-term unsecured and unsubordinated debt rating from S&P of
“A+”.
“S&P
Required Ratings Event” means that neither Party A nor any
Eligible Guarantor of Party A under an Eligible Guarantee has credit
ratings from S&P at least equal to the S&P Required Ratings
Threshold.
“S&P
Required Ratings Threshold” means, (i) with respect to any
Relevant Entity that is a Financial Institution, a short-term unsecured and
unsubordinated debt rating from S&P of “A-2” or, if such entity does not
have a short-term unsecured and unsubordinated debt rating from S&P, a
long-term unsecured and unsubordinated debt rating from S&P of “BBB+” and
(ii) with respect to any Relevant Entity that is not a Financial
Institution, a short-term unsecured and unsubordinated debt rating from S&P
of “A-1” or, if such entity does not have a short-term unsecured and
unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating from S&P of “A+”.
“Swap
Rating Agencies” means, with respect to any date of determination,
each of S&P and Moody’s, to the extent that each such rating agency is then
providing a rating for any of the Certificates.
16
IN
WITNESS WHEREOF, the parties have executed this document by their duly
authorized officers with effect from the date so specified on the first page
hereof.
|
BNP
PARIBAS
|
THE
BANK OF NEW YORK, not in its individual or corporate capacity but
solely
as Swap Contract Administrator for CWABS Asset-Backed Certificates
Trust
2007-9
|
|||
|
(Party
A)
|
(Party
B)
|
|||
|
By: /s/
Xxxxxxxxx Xxxxx Xxxxxx
Name:
Xxxxxxxxx Xxxxx
Xxxxxx
Title:
Authorized
Signatory
|
By: /s/
Xxxxxxxx Xxxxxx
Name:
Xxxxxxxx
Xxxxxx
Title:
Vice
President
|
|||
|
By:
/s/ Xxxxx Xxx
Name:
Xxxxx Xxx
Title:
Authorized
Signatory
|
||||
17
EXHIBIT
A
The Item 1115 Agreement
Item 1115 Agreement dated as of March 15, 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 BNP Paribas, as
counterparty (the "Counterparty").
RECITALS
WHEREAS, CWABS, CWMBS, CWALT and CWHEQ each have filed
Registration Statements on Form S-3 (each, a "Registration Statement") with
the Securities and Exchange Commission (the "Commission") for purposes of
offering mortgage backed or asset-backed notes and/or certificates (the
"Securities") through special purpose vehicles (each, an "SPV").
WHEREAS, from time to time, on the closing date (the "Closing
Date") of a transaction pursuant to which Securities are offered (each, a
"Transaction"), the Counterparty and CHL or an underwriter or dealer with
respect to the Transaction, enter into certain derivative agreements (each, a
"Derivative Agreement"), including interest rate 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
Company Information: As defined in Section 4(a)(i).
Company Financial Information: As defined in Section 2(a)(ii).
Depositor: Means CWABS, CWMBS, CWALT or CWHEQ with respect to
the related Registration Statement for which the entity of the registrant.
GAAP: As defined in Section 3(a)(v).
XXXXX: The Commission's Electronic Data Gathering, Analysis
and Retrieval system.
Exchange Act: The Securities Exchange Act of 1934, as amended
and the rules and regulations promulgated thereunder.
Exchange Act Reports: All Distribution Reports on Form 10-D,
Current Reports on Form 8-K and Annual Reports on Form 10-K that are to be
filed with respect to the related SPV pursuant to the Exchange Act.
Master Agreement: The ISDA Master Agreement between the
Counterparty and CHL, or if no such Master Agreement exists, the ISDA Master
Agreement assumed to apply to the Derivative Agreement pursuant to its terms.
Prospectus Supplement: The prospectus supplement prepared in
connection with the public offering and sale of the related Securities.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended
from time to time, and subject to such clarification and interpretation as
have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531
(Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by
the Commission or its staff from time to time.
Securities Act: The Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
Section 2. Information to be Provided by the Counterparty.
(a) Prior to printing the related Prospectus Supplement,
(i) the Counterparty shall provide to the related Depositor such
information regarding the Counterparty, as a derivative
instrument counterparty, as is reasonably requested by the
related Depositor solely for the purpose of compliance with
Item 1115(a)(1) of Regulation AB, which as of the date of
this agreement is agreed to comprise of:
(A) The Counterparty's legal name;
(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 for the purpose of
compliance with Item 1115(b) with respect to a Transaction,
the Counterparty shall:
(A) provide the financial data required by Item 1115(b)(1)
or (b)(2) of Regulation AB (as specified by the
related Depositor to the Counterparty) with respect to
the Counterparty (or any entity that consolidates the
Counterparty) and any affiliated entities providing
derivative instruments to the SPV (the "Company
Financial Information"), in a form appropriate for use
in the Prospectus Supplement and in an
XXXXX-compatible form; and
(B) if applicable, cause its accountants to issue their
consent to the filing of such financial statements in
the Registration Statement.
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(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 5 Business Days of the release of any updated
financial data, the Counterparty shall (1) provide current
Company Financial Information as required under Item 1115(b)
of Regulation AB to the related Depositor in an
XXXXX-compatible form, (2) if applicable, cause its
accountants to issue their consent to filing or
incorporation by reference of such financial statements in
the Exchange Act Reports of the SPV; and
(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 five Business Days written notice
either (A), (1) provide current Company Financial
Information as required under Item 1115(b) of Regulation AB
to the related Depositor in an XXXXX-compatible form, (2) if
applicable, cause its accountants to issue their consent to
filing or incorporation by reference of such financial
statements in the Exchange Act Reports of the SPV and (3)
within 5 Business Days of the release of any updated
financial data, provide current Company Financial
Information as required under Item 1115(b) of Regulation AB
to the related Depositor in an XXXXX-compatible form and if
applicable, cause its accountants to issue their consent to
filing or incorporation by reference of such financial
statements in the Exchange Act Reports of the SPV or (B)
assign the Derivative Agreement as provided below.
Section 3. Representations and Warranties and Covenants of the Counterparty.
(a) The Counterparty represents and warrants to the related Depositor,
as of the date on which information is first provided to the
related Depositor under Section 2(a)(ii), Section 2(b)(i) or
Section 2(b)(ii), that, except as disclosed in writing the related
Depositor prior to such date:
(i) The accountants who certify the financial statements and
supporting schedules included in the Company Financial
Information (if applicable) are independent registered
public accountants as required by the Securities Act.
(ii) If applicable, the financial statements included in the
Company Financial Information present fairly the
consolidated financial position of the Counterparty (or the
entity that consolidates the Counterparty) and its
consolidated subsidiaries as at the dates indicated and the
consolidated
3
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) 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 (with
respect to the Company Financial Information) and, did not
and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated
therein or necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
(b) The Counterparty agrees that the terms of this Agreement shall be
incorporated by reference into any Derivative Agreement so that
each SPV who is a beneficiary of a Derivative Agreement shall be
an express third party beneficiary of this Agreement.
Section 4. Indemnification; Remedies
(a) The Counterparty shall indemnify CHL and the related Depositor,
each person responsible for the preparation, execution or filing
of any report required to be filed with the Commission with
respect to such SPV, or for execution of a certification pursuant
to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act; each
broker dealer acting as underwriter, each person who controls any
of such parties (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act); and the
respective present and former directors, officers, employees and
agents of each of the foregoing, and shall hold each of them
harmless from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments,
and any other costs, fees and expenses that any of them may
sustain arising out of or based upon:
(i) (A) any untrue statement of a material fact contained or
alleged to be contained in any information, report,
certification, accountants' consent or other material
provided in written or electronic form under Section 2 by or
on behalf of the Counterparty (collectively, the "Company
Information"), or (B) the omission or alleged omission to
state in the Company Information a material fact required to
be stated in the Company
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Information or necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; or
(ii) any breach by the Counterparty of a representation or
warranty set forth in Section 3(a) and made as of a date
prior to the Closing Date, to the extent that such breach is
not cured by the Closing Date, or any breach by the
Counterparty of a representation or warranty pursuant to
Section 3 to the extent made as of a date subsequent to the
Closing Date.
(b) (i) 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 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, except as
provided in clause (ii) of this paragraph, immediately and
automatically, without notice or grace period, constitute an
Additional Termination Event (as defined in the Master
Agreement) with the Counterparty as the sole Affected Party
(as defined in the Master Agreement) under the Derivative
Agreement. In the event that an Early Termination Date is
designated in connection with such Additional Termination
Event, a termination payment (if any) shall be payable as of
the Early Termination Date by the applicable party as
determined by the application of Section 6(e)(ii) of the
Master Agreement, with Market Quotation and Second Method
being the applicable method for determining the termination
payment (notwithstanding anything in the Derivative
Agreement to the contrary).
(ii) If the Counterparty has failed to deliver any information,
report, or accountants' consent when and as required under
Section 2, which continues unremedied for the lesser of ten
calendar days after the date on which such information,
report, or accountants' consent was required to be delivered
or such period in which the applicable Exchange Act Report
for which such information is required can be timely filed
(without taking into account any extensions permitted to be
filed), or if the Counterparty has provided Company
Information any breach by the Counterparty of a
representation or warranty pursuant to Section 3 to the
extent made as of a date subsequent to such closing date,
and the Counterparty has not, at its own cost, within the
period in which the applicable Exchange Act Report for which
such information is required can be timely filed, caused
another entity (which meets any 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 Depositors substantially in the
form of this Agreement, (ii) has agreed to deliver any
information, report, certification or accountants' consent
when and as
5
required under Section 2 hereof and (iii) is approved by the
Depositor (which approval shall not be unreasonably
withheld) and any rating agency, if applicable, on terms
substantially similar to the Derivative Agreement, then an
Additional Termination Event (as defined in the Master
Agreement) shall have occurred with the Counterparty as the
sole Affected Party. In the event that an Early Termination
Date is designated in connection with such Additional
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, with Market Quotation and Second
Method being the applicable method for determining the
termination payment (notwithstanding anything in the
Derivative Agreement to the contrary).
(iii) In the event that the Counterparty or the SPV has found a
replacement entity in accordance with Section 4(b)(ii) , the
Counterparty shall promptly reimburse the SPV for all
reasonable incidental expenses incurred by the SPV, as such
are incurred, in connection with the termination of the
Counterparty as counterparty and the entry into a new
Derivative 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) Construction. Throughout this Agreement, as the context requires,
(a) the singular tense and number includes the plural, and the
plural tense and number includes the singular; (b) the past tense
includes the present, and the present tense includes the past; and
(c) references to parties, sections, schedules, and exhibits mean
the parties, sections, schedules, and exhibits of and to this
Agreement. The section headings in this Agreement are inserted
only as a matter of convenience, and in no way define, limit,
extend, or interpret the scope of this Agreement or of any
particular section.
(b) Assignment. None of the parties may assign their rights under this
Agreement without the prior written consent of the other parties.
Subject to the foregoing, this Agreement shall be binding on and
inure to the benefit of the parties and their respective
successors and permitted assigns.
(c) No Third-Party Benefits Except as Specified. None of the
provisions of this Agreement are intended to benefit, or to be
enforceable by, any third-party beneficiaries except the related
SPV and any trustee of an SPV or any Administrator.
(d) Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York
without regard to the conflict of laws principles thereof.
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(e) Amendment and Waiver. This Agreement may not be modified or
amended except by an instrument in writing signed by the parties
hereto. No waiver of any provision of this Agreement or of any
rights or obligations of any party under this Agreement shall be
effective unless in writing and signed by the party or parties
waiving compliance, and shall be effective only in the specific
instance and for the specific purpose stated in that writing.
(f) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
(g) Additional Documents. Each party hereto agrees to execute any and
all further documents and writings and to perform such other
actions which may be or become necessary or expedient to
effectuate and carry out this Agreement.
(h) Severability. Any provision hereof which is prohibited or
unenforceable shall be ineffective only to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions hereof.
(i) Integration. This Agreement contains the entire understanding of
the parties with respect to the subject matter hereof. There are
no restrictions, agreements, promises, representations,
warranties, covenants or undertakings with respect to the subject
matter hereof other than those expressly set forth or referred to
herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to its subject
matter.
7
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
-------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
CWMBS, INC.
By: /s/ Xxxxxx Xxxxx
-------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
CWALT, INC.
By: /s/ Xxxxxx Xxxxx
-------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
CWHEQ, 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
8
BNP PARIBAS
By: /s/ Xxx Xxxxxxxxx
-------------------------------------------
Name: Xxx Xxxxxxxxx
Title: Managing Director
By: /s/ Avi Xxxxxx
-------------------------------------------
Name: Avi Xxxxxx
Title: Managing Director
9
