Exhibit 99.4
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10
ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT, dated as of September 29, 2006 ("Assignment
Agreement"), among COUNTRYWIDE HOME LOANS, INC. ("Assignor"), THE BANK OF NEW
YORK ("Assignee"), as Corridor Contract Administrator for CWHEQ, Inc. Home
Equity Loan Asset-Backed Certificates Series 2006-S6, pursuant to a Corridor
Contract Administration Agreement (the "Corridor Contract Administration
Agreement") dated as of September 29, 2006, and BEAR XXXXXXX FINANCIAL PRODUCTS
INC. ("Remaining Party").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, effective as of September 29 2006, Assignor desires to assign
all of its rights and delegate all of its duties and obligations to Assignee
under a certain Transaction (the "Assigned Transaction") as evidenced by a
Confirmation with a Trade Date of September 27, 2006, whose BEAR XXXXXXX
FINANCIAL PRODUCTS INC. reference number is FXNEC8732, (the "Confirmation"),
copy of which is attached hereto as Exhibit I;
WHEREAS, Assignor and Remaining Party executed and delivered the
Confirmation in connection with an ISDA Master Agreement (Multicurrency--Cross
Border) form (the "ISDA Form Master Agreement");
WHEREAS, Assignee desires to accept the assignment of rights and assume
the delegation of duties and obligations of the Assignor under the Assigned
Transaction and the Confirmation, including any modifications that may be agreed
to by Assignee and Remaining Party; and
WHEREAS, Assignor desires to obtain the written consent of Remaining
Party to the assignment, delegation, and assumption and Remaining Party desires
to grant such consent in accordance with the terms hereof;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained and for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Assignment and Assumption. Effective as of and from September 29,
2006 (the "Effective Date"), Assignor hereby assigns all of its rights and
delegates all of its duties and obligations to Assignee and Assignee hereby
assumes all Assignor's rights, duties, and obligations under the Assigned
Transaction and the Confirmation arising on or after the Effective Date.
2. Release. Effective as of and from the Effective Date, Remaining
Party and Assignor hereby release one another from all duties and obligations
owed under and in respect of the Assigned Transaction and the Confirmation, and
Assignor hereby terminates its rights under and in respect of the Assigned
Transaction; provided, that such release shall not affect Assignor's obligation
to pay the Fixed Amount in accordance with the terms of the Assigned Transaction
and the Confirmation.
3. Limitation on Liability. Assignor and Remaining Party agree to the
following: (a) The Bank of New York ("BNY") is entering into this Assignment
Agreement solely in its capacity as Corridor Contract Administrator under the
Corridor Contract Administration Agreement; and (b) in no case shall BNY (or any
person acting as successor Corridor Contract Administrator under the Corridor
Contract Administration Agreement) be personally liable for or on account of any
of the statements, representations, warranties, covenants or obligations stated
to be those of Assignee under the terms of the Assigned Transaction, all such
liability, if any, being expressly waived by Assignor and Remaining Party and
any person claiming by, through or under either such party.
4. Consent and Acknowledgment of Remaining Party. Remaining Party
hereby consents to the assignment and delegation by Assignor to Assignee of all
the rights, duties, and obligations of Assignor under the Assigned Transaction
pursuant to this Assignment Agreement.
5. Governing Agreement. The Assigned Transaction and the Confirmation
shall form a part of, and be subject to, the ISDA Form Master Agreement, as if
Assignee and Remaining Party had executed such agreement on the trade date of
the Transaction (the "Assignee Agreement"). The Confirmation, together with all
other documents referring to the ISDA Form Master Agreement confirming the
transaction entered into between Assignee and Remaining Party, shall form a part
of, and be subject to, the Assignee Agreement. For the purposes of this
paragraph, capitalized terms used herein and not otherwise defined shall have
the meanings assigned in the ISDA Form Master Agreement.
6. Additional Provision. Each party hereby agrees that the Confirmation
and thus the Assigned Transaction are each hereby amended as follows:
(a) The following additional provision shall be added as a new
Section 6:
"Regulation AB Compliance. BSFP and Counterparty agree that
the terms of the Item 1115 Agreement dated as of January 30,
2006 (the "Regulation AB Agreement"), between Countrywide Home
Loans, Inc., CWABS, INC., CWMBS, Inc., CWALT, Inc., CWHEQ,
Inc. and Bear Xxxxxxx Financial Products Inc. shall be
incorporated by reference into this Agreement so that
Counterparty shall be an express third party beneficiary of
the Regulation AB Agreement. A copy of the Regulation AB
Agreement is attached hereto as Annex A."
7. Representations. Each party hereby represents and warrants to the
other parties as follows:
(a) It is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization or
incorporation;
(b) It has the power to execute and deliver this Assignment
Agreement; and
(c) Its obligations under this Assignment Agreement constitute
its legal, valid and binding obligations, enforceable in accordance
with their respective terms.
2
As of the Effective Date, each of Assignor and Remaining Party
represents that no event or condition has occurred that constitutes an Event of
Default, a Potential Event of Default or, to the party's knowledge, a
Termination Event (as such terms are defined in the Confirmation and Assignee
Agreement), with respect to the party, and no such event would occur as a result
of the party's entering into or performing its obligations under this Assignment
Agreement.
8. Indemnity. Each of Assignor and Remaining Party hereby agrees to
indemnify and hold harmless Assignee with respect to any and all claims arising
under the Assigned Transaction prior to the Effective Date. Each of Assignee and
Remaining Party (subject to the limitations set forth in paragraph 3 above)
hereby agrees to indemnify and hold harmless Assignor with respect to any and
all claims arising under the Assigned Transaction on or after the Effective
Date.
9. Governing Law. This Assignment Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
10. Notices. For the purposes of this Assignment Agreement and Section
12(a) of the ISDA Form Master Agreement of the Assigned Transaction, the
addresses for notices or communications are as follows: (i) in the case of
Assignor, Countrywide Home Loans, Inc., 0000 Xxxx Xxxxxxx, Xxxx Xxxx XX-000,
Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxx Xxxxx, with a copy to the same
address, Attention: Legal Department, or such other address as may be hereafter
furnished in writing to Assignee and Remaining Party; (ii) in the case of
Assignee, The Bank of New York, 000 Xxxxxxx Xxxxxx, 0x, Xxx Xxxx, Xxx Xxxx
00000, Attention: Corporate Trust MBS Administration, CWHEQ, Series 2006-S6 or
such other address as may be hereafter furnished in writing to Assignor and
Remaining Party; and (iii) in the case of Remaining Party,
Address: 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: DPC Manager - 36th Floor
Telex No. 000-000-0000
copy to: Xxx Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx, 00000
Attention: Derivative Operations - 7th Floor
Telex No: 000-000-0000
such other address as may be hereafter furnished in writing to Assignor
and Assignee.
11. Payments. All payments (if any) remitted by Remaining Party under
the Assigned Transaction shall be made by wire transfer according to the
following instructions:
The Bank of New York
New York, NY
ABA # 000-000-000
GLA # 111-565
For Further Credit: TAS A/C [580916]
Attn: Xxx Xxxxx Xxxxxxx 000-000-0000
Fax: 000-000-0000
12. Counterparts. This Assignment Agreement may be executed and
delivered in counterparts (including by facsimile transmission), each of which
when executed shall be deemed to be an original but all of which taken together
shall constitute one and the same instrument.
3
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement as of the date first above written.
COUNTRYWIDE HOME LOANS, INC.
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
------------------------------------
Title: Executive Vice President
------------------------------------
THE BANK OF NEW YORK, AS CORRIDOR CONTRACT
ADMINISTRATOR FOR CWHEQ, INC. HOME EQUITY
LOAN ASSET-BACKED CERTIFICATES SERIES
2006-S6
By: /s/ Xxx Xxxxx Xxxxxxx
------------------------------------
Name: Xxx Xxxxx Xxxxxxx
------------------------------------
Title: Assistant Treasurer
------------------------------------
BEAR XXXXXXX FINANCIAL PRODUCTS INC.
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
------------------------------------
Title: Authorized Signatory
------------------------------------
4
BEAR XXXXXXX BEAR XXXXXXX FINANCIAL PRODUCTS INC.
000 XXXXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
000-000-0000
DATE: September 29, 2006
TO: Countrywide Home Loans, Inc.
ATTENTION: Xx. Xxxx Xxxxx
TELEPHONE: 0-000-000-0000
FACSIMILE: 0-000-000-0000 FAX: 0-000-000-0000
FROM: Derivatives Documentation
TELEPHONE: 000-000-0000
FACSIMILE: 000-000-0000
SUBJECT: Fixed Income Derivatives Confirmation and Agreement
REFERENCE NUMBER: FXNEC8732 - Amended
This Confirmation and Agreement is amended as of September 29, 2006 and
supersedes all previous Confirmations and Agreements regarding this Transaction.
The purpose of this letter agreement ("Agreement") is to confirm the terms and
conditions of the Transaction entered into on the Trade Date specified below
(the "Transaction") between Bear Xxxxxxx Financial Products Inc. ("BSFP") and
Countrywide Home Loans, Inc., ("Counterparty"). This Agreement, which evidences
a complete and binding agreement between BSFP and Counterparty to enter into the
Transaction on the terms set forth below, constitutes a "Confirmation" as
referred to in the "ISDA Form Master Agreement" (as defined below), as well as a
"Schedule" as referred to in the ISDA Form Master Agreement.
1. This Agreement is subject to and incorporates the 2000 ISDA Definitions
(the "Definitions"), as published by the International Swaps and
Derivatives Association, Inc. ("ISDA"). BSFP and Counterparty have agreed
to enter into this Agreement in lieu of negotiating a Schedule to the 1992
ISDA Master Agreement (Multicurrency--Cross Border) form (the "ISDA Form
Master Agreement"). An ISDA Form Master Agreement shall be deemed to have
been executed by BSFP and Counterparty on the date we entered into the
Transaction. All provisions contained in, or incorporated by reference to,
the ISDA Form Master Agreement shall govern the Transaction referenced in
this Confirmation except as expressly modified herein. In the event of any
inconsistency between the provisions of this Agreement and the Definitions
or the ISDA Form Master Agreement, this Agreement shall prevail for
purposes of the Transaction.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Reference Number: FXNEC8732-Amended
Countrywide Home Loans, Inc.
September 29, 2006
Page 2 of 11
Type of Transaction: Rate Cap
Notional Amount: With respect to any Calculation Period, the
amount set forth for such period in the
Schedule of Notional Amounts and Cap Rates
attached hereto.
Trade Date: September 27, 2006
Effective Date: September 29, 2006
Termination Date: August 25, 2008, subject to adjustment in
accordance with the Business Day Convention.
Fixed Amount (Premium):
Fixed Rate Payer: Counterparty
Fixed Rate Payer September 29, 2006
Payment Date:
Fixed Amount: USD 30,000
Floating Amounts:
Floating Rate Payer: BSFP
Cap Rate: With respect to any Calculation Period, the
rate set forth for such period in the
Schedule of Notional Amounts and Cap Rates
attached hereto.
Floating Rate Payer
Period End Dates: The 25th calendar day of each
month during the Term of this Transaction,
commencing October 25, 2006 and ending on
the Termination Date, subject to adjustment
in accordance with the Business Day
Convention.
Floating Rate Payer
Payment Dates: Early Payment shall be applicable. One
Business Day preceding each Floating Rate
Payer Period End Date.
Floating Rate Option: USD-LIBOR-BBA, provided, however, that if
the Floating Rate determined from such
Floating Rate Option for any Calculation
Period is greater than 9.00000% then the
Floating Rate for such Calculation Period
shall be deemed to be 9.00000%.
Reference Number: FXNEC8732-Amended
Countrywide Home Loans, Inc.
September 29, 2006
Page 3 of 11
Designated Maturity: One month
Floating Rate Day Actual/360
Count Fraction:
Reset Dates: The first day of each Calculation Period.
Compounding: Inapplicable
Business Days for payments: New York
Business Day Convention: Modified Following
3. Additional Provisions: Each party hereto is hereby advised and
acknowledges 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 Transaction being
entered into on the terms and conditions set
forth herein and in the Confirmation
relating to such Transaction, as applicable.
This paragraph shall be deemed repeated on
the trade date of each Transaction.
4. Provisions Deemed Incorporated in a Schedule to the ISDA Form Master
Agreement:
1) The parties agree that subparagraph (ii) of Section 2(c) of the ISDA Form
Master Agreement will apply to any Transaction.
2) Termination Provisions. For purposes of the ISDA Form Master Agreement:
(a) "Specified Entity" is not applicable to BSFP or Counterparty for any
purpose.
(b) "Specified Transaction" is not applicable to BSFP or Counterparty for any
purpose, and, accordingly, Section 5(a)(v) of the ISDA Form Master
Agreement shall not apply to BSFP or Counterparty.
(c) The "Cross Default" provisions of Section 5(a)(vi) of the ISDA Form Master
Agreement will not apply to BSFP or to Counterparty.
(d) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) of the ISDA
Form Master Agreement will not apply to BSFP or to Counterparty.
Reference Number: FXNEC8732-Amended
Countrywide Home Loans, Inc.
September 29, 2006
Page 4 of 11
(e) The "Automatic Early Termination" provision of Section 6(a) of the ISDA Form
Master Agreement will not apply to BSFP or to Counterparty.
(f) Payments on Early Termination. For the purpose of Section 6(e) of the ISDA
Form Master Agreement:
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(g) "Termination Currency" means United States Dollars.
3) Tax Representations. Not applicable
4) Limitation on Events of Default. Notwithstanding the terms of Sections 5 and
6 of the ISDA Form Master Agreement, if at any time and so long as the
Counterparty has satisfied in full all its payment obligations under Section
2(a)(i) of the ISDA Form Master Agreement and has at the time no future payment
obligations, whether absolute or contingent, under such Section, then unless
BSFP is required pursuant to appropriate proceedings to return to the
Counterparty or otherwise returns to the Counterparty upon demand of the
Counterparty any portion of any such payment, (a) the occurrence of an event
described in Section 5(a) of the ISDA Form Master Agreement with respect to the
Counterparty shall not constitute an Event of Default or Potential Event of
Default with respect to the Counterparty as Defaulting Party and (b) BSFP shall
be entitled to designate an Early Termination Date pursuant to Section 6 of the
ISDA Form Master Agreement only as a result of the occurrence of a Termination
Event set forth in either Section 5(b)(i) or 5(b)(ii) of the ISDA Form Master
Agreement with respect to BSFP as the Affected Party or Section 5(b)(iii) with
respect to BSFP as the Burdened Party.
5) Documents to be Delivered. For the purpose of Section 4(a) of the ISDA Form
Master Agreement:
(1) Tax forms, documents, or certificates to be delivered are:
Reference Number: FXNEC8732-Amended
Countrywide Home Loans, Inc.
September 29, 2006
Page 5 of 11
Party required to deliver Form/Document/ Date by which to be delivered
document Certificate
BSFP and the Counterparty Any document required or Promptly after the earlier of
reasonably requested to allow (i) reasonable demand by
the other party to make either party or (ii) learning
payments under this Agreement that such form or document is
without any deduction or required
withholding for or on the
account of any Tax or with
such deduction or withholding
at a reduced rate
(2) 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
BSFP and the Any documents Upon the execution Yes
Counterparty required by the and delivery of this
receiving party to Agreement and such
evidence the Confirmation
authority of the
delivering party or
its Credit Support
Provider, if any, for
it 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
Reference Number: FXNEC8732-Amended
Countrywide Home Loans, Inc.
September 29, 2006
Page 6 of 11
Party required to Form/Document/ Date by which to be Covered by Section
deliver document Certificate delivered 3(d) Representation
BSFP and the A certificate of an Upon the execution Yes
1Counterparty authorized officer of and delivery of this
the party, as to the Agreement and such
incumbency and Confirmation
authority of the
respective officers
of the party signing
this Agreement, any
relevant Credit
Support Document, or
any confirmation, as
the case may be
6) Miscellaneous. Miscellaneous
(a) Address for Notices. For the purposes of Section 12(a) of the ISDA Form
Master Agreement:
Address for notices or communications to BSFP:
Address: 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: DPC Manager
Facsimile: (000) 000-0000
with a copy to:
Address: Xxx Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000
Attention: Derivative Operations - 7th Floor
Facsimile: (000) 000-0000
(For all purposes)
Address for notices or communications to the Counterparty:
Address: 0000 Xxxx Xxxxxxx
Xxxx Xxxx XX-000
Xxxxxxxxx, XX 00000
Attention: Xx. Xxxx Xxxxx
Facsimile: 000-000-0000
Phone: 000-000-0000
Reference Number: FXNEC8732-Amended
Countrywide Home Loans, Inc.
September 29, 2006
Page 7 of 11
b) Process Agent. For the purpose of Section 13(c) of the ISDA Form Master
Agreement:
BSFP appoints as its
Process Agent: Not Applicable
The Counterparty appoints as its
Process Agent: Not Applicable
(c) Offices. The provisions of Section 10(a) of the ISDA Form Master Agreement
will not apply to this Agreement; neither BSFP nor the Counterparty have
any Offices other than as set forth in the Notices Section and BSFP agrees
that, for purposes of Section 6(b) of the ISDA Form Master Agreement, it
shall not in future have any Office other than one in the United States.
(d) Multibranch Party. For the purpose of Section 10(c) of the ISDA Form Master
Agreement:
BSFP is not a Multibranch Party.
The Counterparty is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is BSFP; provided, however, that
if an Event of Default occurs with respect to BSFP, then the Counterparty
shall be entitled to appoint a financial institution which would qualify as
a Reference Market-maker to act as Calculation Agent.
(f) Credit Support Document. Not applicable for either BSFP or the
Counterparty.
(g) Credit Support Provider.
BSFP: Not Applicable
The Counterparty: Not Applicable
(h) Governing Law. The parties to this Agreement hereby agree that the law of
the State of New York shall govern their rights and duties in whole.
(i) 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) for any
reason, 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
Reference Number: FXNEC8732-Amended
Countrywide Home Loans, Inc.
September 29, 2006
Page 8 of 11
Agreement and the deletion of such portion of this Agreement will not
substantially impair the respective benefits or expectations of the parties.
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.
(j) 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 officers or employees of the parties, waives any
further notice of such monitoring or recording, and agrees to notify its
officers and employees of such monitoring or recording.
(k) Waiver of Jury Trial. Each party waives any right it may have to a trial by
jury in respect of any Proceedings relating to this Agreement or any Credit
Support Document.
(l) BSFP will not unreasonably withhold or delay its consent to an assignment
of this Agreement to any other third party.
(m) Set-off. The provisions for Set-off set forth in Section 6(e) of the ISDA
Form Master Agreement shall not apply for purposes of this Transaction.
7) "Affiliate" will have the meaning specified in Section 14 of the ISDA Form
Master Agreement, provided that BSFP shall not be deemed to have any
Affiliates for purposes of this Agreement, including for purposes of
Section 6(b)(ii).
8) Section 3 of the ISDA Form Master Agreement is hereby amended by adding at
the end thereof the following subsection (g):
"(g) Relationship Between Parties.
Each party represents to the other party on each date when it enters
into a Transaction that:-
(1) Nonreliance. It is not relying on any statement or
representation of the other party regarding the Transaction (whether written or
oral), other than the representations expressly made in this Agreement or the
Confirmation in respect of that Transaction.
(2) Evaluation and Understanding.
(i) It has the capacity to evaluate (internally or through
independent professional advice) the Transaction and has made its own decision
to enter into the Transaction; and
Reference Number: FXNEC8732-Amended
Countrywide Home Loans, Inc.
September 29, 2006
Page 9 of 11
(ii) It understands the terms, conditions and risks of the
Transaction and is willing and able to accept those terms and conditions and to
assume those risks, financially and otherwise.
(3) Purpose. It is entering into the Transaction for the purposes
of managing its borrowings or investments, hedging its underlying assets or
liabilities or in connection with a line of business.
(4) Principal. It is entering into the Transaction as principal,
and not as agent or in any other capacity, fiduciary or otherwise."
NEITHER THE BEAR XXXXXXX COMPANIES INC. NOR ANY SUBSIDIARY OR
AFFILIATE OF THE BEAR XXXXXXX COMPANIES INC. OTHER THAN BSFP IS AN
OBLIGOR OR A CREDIT SUPPORT PROVIDER ON THIS AGREEMENT.
5. Account Details and
Settlement Information: Payments to BSFP:
Citibank, N.A., New York
ABA Number: 000-0000-00, for the account of
Bear, Xxxxxxx Securities Corp.
Account Number: 0925-3186, for further credit to
Bear Xxxxxxx Financial Products Inc.
Sub-account Number: 102-04654-1-3 Attention:
Derivatives Department
Payments to Counterparty:
Please provide
This Agreement may be executed in several counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.
Counterparty hereby agrees to check this Confirmation and to confirm that the
foregoing correctly sets forth the terms of the Transaction by signing in the
space provided below and returning to BSFP a facsimile of the fully-executed
Confirmation to 000-000-0000. For inquiries regarding U.S. Transactions, please
contact Derivatives Documentation by telephone at 000-000-0000. For all other
inquiries please contact Derivatives Documentation by telephone at
000-0-000-0000. Originals will be provided for your execution upon your request.
Reference Number: FXNEC8732-Amended
Countrywide Home Loans, Inc.
September 29, 2006
Page 10 of 11
We are very pleased to have executed this Transaction with you and we look
forward to completing other transactions with you in the near future.
Very truly yours,
BEAR XXXXXXX FINANCIAL PRODUCTS INC.
By:
---------------------------------------------
Name: XXXXX XXXXXXXX
Title: AUTHORIZED SIGNATORY
Counterparty, acting through its duly authorized signatory, hereby agrees to,
accepts and confirms the terms of the foregoing as of the Trade Date.
COUNTRYWIDE HOME LOANS, INC.
By:
---------------------------------------------
As authorized agent or officer for Countrywide Home Loans, Inc.
Name:
Title:
Reference Number: FXNEC8732-Amended
Countrywide Home Loans, Inc.
September 29, 2006
Page 11 of 11
SCHEDULE OF NOTIONAL AMOUNTS AND CAP RATES
(all such dates subject to adjustment in accordance with the Business
Day Convention)
---------------------------------------------------------------------
From and including To but excluding Notional Amount (USD) Cap Rate (%)
------------------ ---------------- --------------------- ------------
Effective Date 25-Oct-06 462,101,000.00 7.6090%
25-Oct-06 25-Nov-06 450,636,630.00 6.3640%
25-Nov-06 25-Dec-06 436,886,383.00 6.5800%
25-Dec-06 25-Jan-07 421,626,703.00 6.3650%
25-Jan-07 25-Feb-07 404,895,171.00 6.3650%
25-Feb-07 25-Mar-07 386,736,118.00 7.0590%
25-Mar-07 25-Apr-07 367,200,515.00 6.3660%
25-Apr-07 25-May-07 345,871,390.00 6.5820%
25-May-07 25-Jun-07 323,283,965.00 6.3670%
25-Jun-07 25-Jul-07 299,508,375.00 6.5830%
25-Jul-07 25-Aug-07 274,620,652.00 6.3680%
25-Aug-07 25-Sep-07 248,710,326.00 6.3680%
25-Sep-07 25-Oct-07 223,209,798.00 6.5840%
25-Oct-07 25-Nov-07 198,271,311.00 6.3690%
25-Nov-07 25-Dec-07 174,012,614.00 6.5850%
25-Dec-07 25-Jan-08 150,414,792.00 6.3690%
25-Jan-08 25-Feb-08 127,459,447.00 6.3700%
25-Feb-08 25-Mar-08 105,128,686.00 6.8170%
25-Mar-08 25-Apr-08 83,793,658.00 6.3710%
25-Apr-08 25-May-08 63,170,729.00 6.5870%
25-May-08 25-Jun-08 43,124,716.00 6.3710%
25-Jun-08 25-Jul-08 23,639,633.00 6.5880%
25-Jul-08 Termination Date 4,699,934.00 6.3720%
Item 1115 Agreement dated as of January 30, 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 BEAR XXXXXXX FINANCIAL PRODUCTS INC., 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 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 for the purpose of compliance with
Item 1115(a)(1) of Regulation AB. Such information
shall include, at a minimum:
(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;
(D) a description of any material legal or
governmental proceedings pending (or known
to be contemplated) against the Counterparty
which may have a material impact on the
Counterparty's ability to perform under the
related Derivative Agreement;
(E) a description of any affiliation or
relationship between the Counterparty and
any of the following parties:
(1) CHL (or any other sponsor
identified to the Counterparty by
CHL);
(2) the related Depositor (as
identified to the Counterparty by
CHL);
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(3) the SPV;
(4) Countrywide Home Loans Servicing LP
(or any other servicer or master
servicer identified to the
Counterparty by CHL);
(5) The Bank of New York (or any other
trustee identified to the
Counterparty by CHL);
(6) any originator identified to the
Counterparty by CHL;
(7) any enhancement or support provider
identified to the Counterparty by
CHL; and
(8) any other material transaction
party identified to the
Counterparty by CHL.
(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.
(b) Following the Closing Date with respect to a Transaction,
(i) no later than the 25th calendar day of each month,
the Counterparty shall (i) notify the related
Depositor in writing of (A) any material litigation
or governmental proceedings pending against the
Counterparty which may have a material impact on the
Counterparty's ability to perform under the related
Derivative Agreement or (B) any affiliations or
relationships that develop following the Closing Date
between the Counterparty and any of the parties
specified in Section 2(a)(i)(E) (and any other
parties identified in writing by the related
Depositor) and (ii) provide to the related Depositor
a description of such proceedings, affiliations or
relationships as described in Section 2(b)(i)(I)(i);
and
(ii) if the Counterparty provided Company Financial
Information to the related Depositor for the
Prospectus Supplement, within 5 Business Days of the
release of any updated financial data, the
Counterparty shall (1) provide current Company
Financial Information as required under Item
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1115(b) of Regulation AB to the related Depositor in
an XXXXX-compatible 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;
(iii) if the related Depositor requests Company Financial
Information from the Counterparty, 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)(ii) or Section 2(b)(iii)(A), 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 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
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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 (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) 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 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.
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(b) (i) Any failure by the Counterparty to deliver any
information, report, certification, accountants'
consent or other material when and 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), 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 such closing date, 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. 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).
(ii) If the Counterparty has failed to deliver any
information, report, certification 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, certification 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), 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 ratings related requirement of the
applicable rating agencies at such time) 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 required under Section 2 hereof
and (iii) is approved by the Depositor (which
approval shall not be unreasonably withheld and which
approval is not needed if such assignment is to a
subsidiary of The Bear Xxxxxxx Companies, Inc.,
provided the Depositor is given notice) 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. 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).
(iii) In the event that the Counterparty or the SPV has
found a replacement entity in accordance with Section
2(b)(ii), the Counterparty shall promptly reimburse
the
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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
Instrument. 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.
(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.
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(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.
(j) CHL agrees to provide to the Counterparty prior to January 30,
2006 the methodology for its estimate of maximum probable
exposure represented by the Derivative Agreements and then to
provide notice of any changes to the methodology.
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IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of the
day and year first above written.
CWABS, INC.
By: /s/ XXXXX XXXXXX
--------------------
Name: XXXXX XXXXXX
Title: VICE PRESIDENT
CWMBS, INC.
By: /s/ XXXXX XXXXXX
--------------------
Name: XXXXX XXXXXX
Title: VICE PRESIDENT
CWALT, INC.
By: /s/ XXXXX XXXXXX
--------------------
Name: XXXXX XXXXXX
Title: VICE PRESIDENT
CWHEQ, INC.
By: /s/ XXXXX XXXXXX
--------------------
Name: XXXXX XXXXXX
Title: VICE PRESIDENT
COUNTRYWIDE HOME LOANS, INC.
By: /s/ XXXXX XXXXXX
--------------------
Name: XXXXX XXXXXX
Title: VICE PRESIDENT
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BEAR XXXXXXX FINANCIAL PRODUCTS INC.
By: /s/ F. XXXXX XXXXXX
--------------------
Name: XXXXX XXXXXX
Title: DPC MANAGER
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