EXHIBIT 99.3
------------
The Schedule to the ISDA Master Agreement
Schedule
to the
Master Agreement
dated as of December 28, 2006
between
Credit Suisse International, and The Bank of New York, not in its
an unlimited company incorporated individual or corporate capacity,
under the laws of England and Wales but solely as trustee for the
("Party A") Supplemental Interest Trust created
under the Pooling and Servicing
Agreement for CHL Mortgage
Pass-Through Trust 2006-20
("Party B")
Part 1
Termination Provisions
In this Agreement:-
(a) Specified Entity. "Specified Entity" shall have no meaning in relation to
Party A or Party B.
(b) Specified Transaction. Specified Transaction will have the meaning
specified in Section 14.
(c) Certain Events of Default. The following Events of Default will apply to
the parties as specified below, and the definition of "Event of Default" in
Section 14 is deemed to be modified accordingly:
Section 5(a)(i) (Failure To Pay or Deliver) will apply to Party A and will apply to Party B.
Section 5(a)(ii) (Breach of Agreement) will not apply to Party A or Party B.
Section 5(a)(iii) (Credit Support Default) will not apply to Party A or Party B.
Section 5(a)(iv) (Misrepresentation) will not apply to Party A or Party B.
Section 5(a)(v) (Default Under Specified Transaction) will not apply to Party A or Party B.
Section 5(a)(vi) (Cross Default) will not apply to Party A or Party B.
Section 5(a)(vii) (Bankruptcy) will apply to Party A and will not apply to Party B.
Section 5(a)(viii) (Merger Without Assumption) will apply to Party A and will apply to Party B.
(d) Termination Events. The "Illegality" provision of Section 5(b)(i), the
"Tax Event" provision of Section 5(b)(ii), the "Tax Event Upon Merger"
provision of Section 5(b)(iii) will apply to both Party A and Party B. The
'Credit Event upon Merger" provision of Section 5(b)(iv) will not apply to
Party A and will not apply to Party B.
(e) Automatic Early Termination. The "Automatic Early Termination" provision
of Section 6(a) will not apply to Party A or Party B.
(f) Payments on Early Termination. For the purpose of Section 6(e), the
Second Method and Market Quotation will apply.
(g) Termination Currency. "Termination Currency" means United States Dollars.
(h) Additional Termination Event.
An Additional Termination Event with respect to Party A as the sole
Affected Party:-
Failure to Deliver Information. Party A has failed to comply with the
requirements of Section 2(c) of the Regulation AB Agreement (as
defined in Part 5 below).
Part 2
Tax Representations
(a) Payer Tax Representations. For the purpose of Section 3(e), Party A and
Party B each makes the following representation:-
It is not required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account
of any Tax from any payment (other than interest under Section 2(e),
6(d)(ii) or 6(e)) to be made by it to the other party under this
Agreement. In making this representation, it may rely on:-
(i) the accuracy of any representation made by the other party
pursuant to Section 3(f);
(ii) the satisfaction of the agreement of the other party
contained in Section 4(a)(i) or 4(a)(iii) and the accuracy
and effectiveness of any document provided by the other
party pursuant to Section 4(a)(i) or 4(a)(iii); and
(iii) the satisfaction of the agreement of the other party
contained in Section 4(d);
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.
(b) Payee Tax Representations. For the purpose of Section 3(f),
(i) Party A makes the following representation to Party B:
(A) Party A is entering into each Transaction in the
ordinary course of its trade as, and is, a recognized
UK bank as defined in Section 840A of the UK Income and
Corporation Taxes Act of 1988.
(B) Party A has been approved as a Withholding Foreign
Partnership by the US Internal Revenue Service.
(C) Party A's Withholding Foreign Partnership Employer
Identification Number is 00-0000000.
(D) Party A is a partnership that agrees to comply with any
withholding obligation under Section 1446 of the
Internal Revenue Code.
(ii) Party B makes no Payee Tax Representations.
Part 3
Agreement to Deliver Documents
Each party agrees to deliver the following documents as applicable:-
(a) For the purpose of Section 4(a)(i), tax forms, documents or certificates
to be delivered are:-
Party required to Form/Document/ Date by which to be
deliver document Certificate delivered
Party A U.S. Internal (i) Before the
Revenue Service first Payment Date
Form W-8IMY or any under this
successor forms Agreement, such
thereto form to be updated
at the beginning of each
succeeding
three-calendar-year
period after the first
payment date under this
Agreement, (ii) promptly
upon reasonable demand
by Party B, and (iii)
promptly upon learning
that any such Form
previously provided by
Party A has become
obsolete or incorrect.
(b) For the purpose of Section 4(a)(ii), other documents to be delivered are:-
Party required to Form/Document/ Date by which to be Covered by Section
deliver document Certificate delivered 3(d) Representation
Party A and Evidence reasonably Upon request Yes
Party B satisfactory to the
other party as to
the names, true
signatures and
authority of the
officers or
officials signing
this Agreement or
any Confirmation on
its behalf
Party A A copy of the Upon request, as Yes
annual report for soon as publicly
Party required to Form/Document/ Date by which to be Covered by Section
deliver document Certificate delivered 3(d) Representation
such party available
containing audited
or certified
financial
statements for the
most recently ended
financial year
Party A An opinion of Upon execution of No
counsel to such this Agreement
party reasonably
satisfactory in
form and substance
to the other party
covering the
enforceability of
this Agreement
against such party
Part 4
Miscellaneous
(a) Addresses for Notices. For the purpose of Section 12(a):
(i) (1) Address for notices or communications to Party A:
Notwithstanding section 12 (a) of the Agreement all notices including those to
be given under Section 5 or 6 may be given by facsimile transmission or
electronic messaging system.
Address: One Cabot Square Attention: (1) Head of Credit Risk Management;
Xxxxxx X00 0XX (2) Managing Director -
England Operations Department;
(3) Managing Director - Legal
Department
Telex No.: 264521 Answerback: CSFBI G
(For all purposes.)
(2) For the purpose of facsimile notices or communications under this
Agreement:-
Facsimile No.: x00 000 0000 0000
Attention: General Counsel Europe - Legal and Compliance Department
Telephone number for oral confirmation of receipt of facsimile in legible form: x00 000 0000 0000
Designated responsible employee for the purposes of Section 12(a)(iii): Senior Legal Secretary
With a copy to:
Facsimile No. x00 (0) 000 000 0000
Head of Credit Risk Management
With a copy to:
Facsimile No. x00 (0) 000 000 0000
Global Head of OTC Operations, Operations Department.
(ii) Address for notices or communications to Party B:
Address: The Bank of New York
000 Xxxxxxx Xxxxxx-0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust MBS Administration, CWMBS, Series 2006-20
Telephone No.: 000-000-0000 Facsimile No.: 000-000-0000
(For all purposes.)
with a copy to:
Address: Credit Suisse Management LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Attention: Xxxxx Xxxx
Telephone No.: (000) 000-0000 Facsimile No.: (000) 000-0000
(b) Process Agent. For the purpose of Section 13(c):-
Party A appoints as its Process Agent:- Credit Suisse Securities
(USA) LLC, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (Attention:-
General Counsel, Legal and Compliance Department).
Party B appoints as its Process Agent:- Not Applicable.
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10(c):-
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Party A; provided however,
that if an Event of Default occurs with respect to Party A, then Party B shall
be entitled to appoint a financial institution, that would qualify as a
Reference Market-maker to act as Calculation Agent.
(f) Credit Support Document. None
(g) Credit Support Provider.
Credit Support Provider means in relation to Party A: Not applicable.
Credit Support Provider means in relation to Party B: Not applicable.
(h) Governing Law. This Agreement and, to the fullest extent permitted by
applicable law, all matters arising out of or relating in any way to
this Agreement, will be governed by and construed in accordance with
the laws of the State of New York without reference to choice of law
doctrine. Each party hereby submits to the jurisdiction of the Courts
of the State of New York.
(i) Netting of Payments. Section 2(c)(ii) of this Agreement will not
apply to the Transactions.
(j) Affiliate. Affiliate will have the meaning specified in Section 14,
provided that Party B shall be deemed to have no Affiliates.
Part 5
Other Provisions
(a) Definitions. Unless otherwise specified in a Confirmation, this Agreement
and each Transaction between the parties are subject to the 2000 ISDA
Definitions as published by the International Swaps and Derivatives
Association, Inc. (the "2000 Definitions"), and will be governed in all
relevant respects by the provisions set forth in the 2000 Definitions, without
regard to any amendment to the 2000 Definitions subsequent to the date hereof.
The provisions of the 2000 Definitions are incorporated by reference in and
shall be deemed a part of this Agreement, except that references in the 2000
Definitions to a "Swap Transaction" shall be deemed references to a
"Transaction" for purposes of this Agreement.
(b) Pooling and Servicing Agreement. References to the "Pooling and Servicing
Agreement" are to the pooling and servicing agreement dated as of December 1,
2006 among CWMBS, Inc., as depositor, Countrywide Home Loans, Inc., as a
seller, Park Granada LLC, as a seller, Park Monaco Inc., as a seller, Park
Sienna LLC, as a seller, Countrywide Home Loans Servicing LP, as master
servicer, and The Bank of New York, as trustee.
(c) Independent Reliance. The parties agree to amend Section 3 of this
Agreement by the addition of the following provision at the end thereof and
marked as subsection (g).
"(g) Independent Reliance. It is entering into this Agreement and
will enter into each Transaction in reliance upon such tax,
accounting, regulatory, legal and financial advice as it
deems necessary and not upon any view expressed by the other
party."
(d) Change of Account. Section 2(b) of this Agreement is hereby amended by the
addition of the following after the word "delivery" in the first line
thereof:-
"to another account in the same legal and tax jurisdiction as the
original account"
(e) Recording of Conversations. Each party to this Agreement acknowledges and
agrees to the tape recording of conversations between the parties to this
Agreement whether by one or other or both of the parties and each party hereby
consents to such recordings being used as evidence in Proceedings.
(f) Waiver of Right to Trial by Jury. Each party waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury in
respect of any suit, action or proceeding relating to this Agreement or any
Credit Support Document. Each party (i) certifies that no representative,
agent or attorney of the other party or any Credit Support Provider has
represented, expressly or otherwise, that such other party would not, in the
event of such a suit action or proceeding, seek to enforce the foregoing
waiver and (ii) acknowledges that it and the other party have been induced to
enter into this Agreement and provide for any Credit Support Document, as
applicable by, among other things, the mutual waivers and certifications in
this Section.
(g) Pooling and Servicing Agreement.
(1) Capitalized terms used in this Agreement that are not defined
herein and are defined in the Pooling and Servicing Agreement shall
have the respective meanings assigned to them in the Pooling and
Servicing Agreement.
(2) Notwithstanding any other provision of this Agreement, Party A
may not, prior to the date which is one year and one day, or if longer the
applicable preference period then in effect, after the payment in full of
all Certificates, institute against, or join any other Person in
instituting against, the Trust any bankruptcy, reorganization,
arrangement, insolvency, moratorium or liquidation proceedings, or other
proceedings under Federal, State, or bankruptcy or similar laws. Nothing
shall preclude, or be deemed to stop, Party A (i) from taking any action
prior to the expiration of the aforementioned one year and one day
period, or if longer the applicable preference period then in effect, in
(A) any case or proceeding voluntarily filed or commenced by the Trust or
(B) any involuntary insolvency proceeding filed or commenced by a Person
other than Party A, or
(ii) from commencing against the Trust or any of the Collateral any legal
action which is not a bankruptcy, reorganization, arrangement, insolvency,
moratorium, liquidation or similar proceeding.
(h) 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, promptly to give the other party notice of such event or condition
(or, in lieu of giving notice of such event or condition in the case of an
event or condition that with the giving of notice or passage of time or both
would constitute an Event of Default or Termination Event with respect to the
party, to cause such event or condition to cease to exist before becoming an
Event of Default or Termination Event); provided that failure to provide
notice of such event or condition pursuant to this Part 5(j) shall not
constitute an Event of Default or a Termination Event.
(i) Regarding Party A. Party B acknowledges and agrees that Party A has had
and will have no involvement in and, accordingly Party A accepts no
responsibility for: (i) the establishment, structure, or choice of assets of
the Trust; (ii) the selection of any person performing services for or
acting on behalf of Party B or the Trust; (iii) the selection of Party A as the
Counterparty; (iv) the terms of the Certificates; (v) the preparation of or
passing on the disclosure and other information contained in any offering
circular for the Certificates, the Pooling and Servicing Agreement, or any
other agreements or documents used by any party in connection with the
marketing and sale of the Certificates; (vi) the ongoing operations and
administration of the Trust, including the furnishing of any information to
Party B which is not specifically required under this Agreement; or (vii) any
other aspect of the Trust's existence.
(j) Commodity Exchange Act. Each party represents to the other party on and
as of the date hereof and on each date on which a Transaction is entered into
among them that:
(i) such party is an "eligible contract participant" as defined
in the U.S. Commodity Exchange Act (the "CEA");
(ii) neither this Agreement nor any Transaction has been executed
or traded on a "trading facility" as such term is defined in
the CEA; and
(iii) such party is entering into each Transaction in connection
with its business or a line of business and the terms of
this Agreement and each Transaction have been individually
tailored and negotiated.
(k) Set-off. Without affecting the provisions of this Agreement requiring the
calculation of certain net payment amounts, all payments under this Agreement
will be made without set-off or counterclaim.
(l) Limitation on Events of Default. Notwithstanding the terms of Sections 5
and 6 of this Agreement, if at any time and so long as Party B has satisfied
in full all its payment obligations under Section 2(a)(i) of this Agreement
and has at the time no future payment obligations, whether absolute or
contingent, under such Section, then unless Party A is required pursuant to
appropriate proceedings to return to Party B or otherwise returns to Party B
upon demand of Party B any portion of such payment, (a) the occurrence of an
event described in Section 5(a) of this Agreement with respect to Party B
shall not constitute an Event of Default or Potential Event of Default with
respect to Party B as Defaulting Party and (b) Party A shall be entitled to
designate an Early Termination Date pursuant to Section 6 of this Agreement
only as a result of the occurrence of a Termination Event as set forth in
either Section 5(b)(i) or 5(b)(ii) of this Agreement with respect to Party A
as the Affected Party or Section 5(b)(iii) of this Agreement with respect to
Party A as the Burdened Party.
(m) Limitation on Liability. It is expressly understood and agreed by the
parties hereto that: (a) The Bank of New York ("BNY") is entering into this
Agreement solely in its capacity as trustee of the Supplemental Interest Trust
under the Pooling and Servicing Agreement, and (b) in no case shall BNY (or
any person acting as successor trustee under the Pooling and Servicing
Agreement) 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.
(n) Regulation AB Compliance. Party A and Party B agree that the terms of the
Master Item 1115 Agreement dated as of November 28, 2006, as supplemented by
the Supplement dated December 19, 2006, (the "Item 1115 Agreement"), between
Countrywide Home Loans, Inc., CWABS, INC., CWMBS, Inc., CWALT, Inc., CWHEQ,
Inc. and Credit Suisse International shall be incorporated by reference into
this Agreement so that Party B shall be an express third party beneficiary of
the Item 1115 Agreement. The Item 1115 Agreement is attached hereto as Exhibit
A.
IN WITNESS WHEREOF, the parties have executed this Schedule by their
duly authorized representatives as of the date of the Agreement.
CREDIT SUISSE INTERNATIONAL THE BANK OF NEW YORK, NOT IN ITS
INDIVIDUAL OR CORPORATE CAPACITY, BUT
SOLELY AS TRUSTEE FOR THE
SUPPLEMENTAL INTEREST TRUST CREATED
UNDER THE POOLING AND SERVICING
AGREEMENT FOR CHL MORTGAGE PASS-
THROUGH TRUST 2006-20
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxxxx Xxxxxx
--------------------------------- ---------------------------
Name: Xxxxxx X. Xxxx Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory Title: Assistant Treasurer
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Authorized Signatory
EXHIBIT A
Master Item 1115 Agreement dated as of November 28, 2006 (this
"Agreement"), among 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 each
Transaction referenced in any supplement to this Agreement, any such
supplement substantially in the form attached hereto as 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).
Countrywide Indemnified Party: As defined in Section 4(a).
Counterparty Indemnified Party: As defined in Section 4(b).
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.
Indemnified Party: As defined in Section 4(b).
Master Agreement: The ISDA Master Agreement between the
Counterparty and SPV, or if no such Master Agreement exists, the ISDA Master
Agreement assumed to apply to the Derivative Agreement pursuant to its terms.
Prospectus Supplement: The prospectus supplement prepared in
connection with the public offering and sale of the related Securities 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 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 and until the related Depositor
takes the steps necessary to suspend its obligation to file
Exchange Act Reports, with respect to the SPV, under
Sections 13 and 15(d) of the Exchange Act 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 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 to
the related Depositor prior to such date:
(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 Section 20 of the Exchange
Act); and the respective present and former directors, officers,
employees and agents of each of the foregoing (each, a
"Countrywide Indemnified Party"), and shall hold each of them
harmless from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs,
judgments, and any other costs, fees and expenses that any of
them may sustain arising out of or based upon:
(i) (A) any untrue statement of a material fact contained or
alleged to be contained in any information, report,
accountants' consent or other material provided in written
or electronic form under Section 2(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) The Depositor shall indemnify the Counterparty, each of its
officers and directors and each person who controls the
Counterparty (within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act) (each, a "Counterparty
Indemnified Party"; and each of the Countrywide Indemnified Party
and the Counterparty Indemnified Party shall be referred to as
the "Indemnified Party"), and shall hold each of them harmless
from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs,
judgments, and any other costs, fees and expenses that any of
them may sustain arising out of or based upon any untrue
statement or alleged untrue statement of any material fact
contained in the Prospectus Supplement or any free writing
prospectus with respect to the related Securities or the omission
or alleged omission to state a material fact necessary in order
to make the statements therein not misleading; provided, however,
that the indemnity set forth in this Section 4(b) shall not apply
insofar as such losses, claims, expenses, damages or liabilities
(or actions in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any
material fact contained in the Company Information or the
omission or alleged omission to state in the Company Information
a material fact necessary in order to make the statements therein
not misleading and/or (ii) a breach of the representations set
forth in Sections 3(a) above.
(c) Promptly after the Indemnified Party receives notice of the
commencement of any such action, the Indemnified Party will, if a
claim in respect thereof is to be made pursuant to this
Agreement, promptly notify the indemnifying party in writing of
the commencement thereof. In case any such action is brought
against the Indemnified Party, and it notifies the indemnifying
party of the commencement thereof, the indemnifying party shall
be entitled to appoint counsel of the indemnifying party's choice
at the indemnifying party's expense to represent the Indemnified
Party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the
Indemnified Party except as set forth below); provided, however,
that such counsel shall be reasonably satisfactory to the
Indemnified Party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the Indemnified Party in
an action, the Indemnified Party shall have the right to employ
separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the Indemnified Party would
present such counsel with a conflict of interest, (ii) the actual
or potential defendants in, or targets of, any such action
include both the Indemnified Party and the indemnifying party,
and the Indemnified Party shall have reasonably concluded that
there may be legal defenses available to it that are different
from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the Indemnified Party to represent the
Indemnified Party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall
authorize the Indemnified Party to employ separate counsel at the
expense of the indemnifying party. The
indemnifying party will not, without the prior written consent of
the Indemnified Party, settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the
Indemnified Party is an actual or potential party to such claim
or action) unless such settlement, compromise or consent includes
an unconditional release of each Indemnified Party from all
liability arising out of such claim, action, suit or proceeding.
In addition, for so long as the indemnifying party is covering
all costs and expenses of the Indemnified Party as provided
herein, no Indemnified Party will settle or compromise or consent
to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder without
the consent of the indemnifying party, which consent shall not be
unreasonably withheld.
(d) Nothing in this agreement shall be construed to allow the
Indemnified Party to recover punitive damages or consequential
damages from the indemnifying party.
(e) 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).
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 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.
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:
-----------------------------------------
Name:
Title:
CWMBS, INC.
By:
-----------------------------------------
Name:
Title:
CWALT, INC.
By:
-----------------------------------------
Name:
Title:
CWHEQ, INC.
By:
-----------------------------------------
Name:
Title:
COUNTRYWIDE HOME LOANS, INC.
By:
----------------------------------------
Name:
Title:
CREDIT SUISSE INTERNATIONAL
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
EXHIBIT A
This supplement dated as of December 19, 2006 (this
"Supplement") to the Master Item 1115 Agreement dated as of November 28, 2006
(the "Master 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") supplements and forms part
of the Master Agreement. Capitalized terms used but not defined herein shall
have the meanings set forth in the Master Agreement.
The undersigned hereby acknowledge and agree that each of
the following entities shall be Transactions under the Master Agreement and
that all of the terms of the Master Agreement shall apply to each:
1. CWMBS, Inc. CHL Mortgage Pass-Through Trust 2006-20
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:
-----------------------------------------
Name:
Title:
CWMBS, INC.
By:
------------------------------------------
Name:
Title:
CWALT, INC.
By:
------------------------------------------
Name:
Title:
CWHEQ, INC.
By:
------------------------------------------
Name:
Title:
COUNTRYWIDE HOME LOANS, INC.
By:
-------------------------------------------
Name:
Title:
