EXHIBIT 99.3
ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT, dated as of March 30, 2006 ("Assignment
Agreement"), among COUNTRYWIDE HOME LOANS, INC. ("Assignor"), JPMORGAN CHASE
BANK, N.A. ("Assignee"), not in its individual capacity but solely in its
capacity as Cap Contract Administrator for CWHEQ Revolving Home Equity Loan
Trust, Series 2006-C, pursuant to a Cap Contract Administration Agreement (the
"Cap Contract Administration Agreement") dated as of March 30, 2006, and
BARCLAYS BANK PLC ("Remaining Party").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, effective as of March 30, 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 certain
confirmation with a Trade Date of March 23, 2006 whose BARCLAYS BANK PLC
reference number is 1139666B (the "Confirmation"), a 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 March 30, 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) JPMorgan Chase Bank, N.A. ("JPMorgan") is entering into this
Assignment Agreement not in its individual capacity but solely in its capacity
as Cap Contract Administrator under the Cap Contract Administration Agreement;
and (b) in no case shall JPMorgan (or any person acting as successor Cap
Contract Administrator under the Cap 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 Effective Date
of the Transaction (the "Assignee Agreement"). The Confirmation, together with
all other documents referring to the ISDA Form Master Agreement confirming
transactions 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 8:
"Regulation AB Compliance. Party A and Party B agree that
the terms of the Item 1115 Agreement dated as of February
16, 2006 (the "Regulation AB Agreement"), between
Countrywide Home Loans, Inc., CWABS, INC., CWMBS, Inc.,
CWALT, Inc., CWHEQ, Inc. and Barclays Bank PLC shall be
incorporated by reference into this Agreement so that Party
B shall be an express third party beneficiary of the
Regulation AB Agreement. A copy of the Regulation AB
Agreement is attached hereto as Annex A."
(b) The Item 1115 Agreement dated as of February 16, 2006,
between Countrywide Home Loans, Inc., CWABS, INC., CWMBS,
Inc., CWALT, Inc., CWHEQ, Inc. and Barclays Bank PLC, a copy
of which is attached hereto as Exhibit II, shall be added 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;
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(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.
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, Xxxxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxx Xxxxxxx, Xx., 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, JPMorgan Chase Bank, N.A., 4 New York Plaza, 6th Floor, New
York, New York 10004, Attention: Worldwide Securities Services/Structure
Finance Services, Countrywide HEL CWHEQ 2006-C or such other address as may be
hereafter furnished in writing to Assignor and Remaining Party; and (iii) in
the case of Remaining Party, Barclays Bank PLC, 5 The North Colonade, Canary
Wharf, E14 4 BB, 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:
JPMorgan Chase Bank, N.A. - Houston, TX.
ABA# 000000000
Acct Number: 00103409232
Acct Name: Houston Structured Finance
Ref: CWHEQ 2006-C
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.
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement
as of the date first above written.
COUNTRYWIDE HOME LOANS, INC.
By: /s/ Xxxx Xxxxxxx, Xx.
--------------------------------------
Name: Xxxx Xxxxxxx, Xx.
Title: Senior Vice President
JPMORGAN CHASE BANK, N.A., AS CAP
CONTRACT ADMINISTRATOR FOR CWHEQ
REVOLVING HOME EQUITY LOAN TRUST,
SERIES 2006-C
By: /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Attorney-In-Fact
BARCLAYS BANK PLC
By: /s/ Xxxxx Xxxxx
--------------------------------------
Name: Xxxxx Xxxxx
Title: Authorised Signatory
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EXHIBIT I
[LOGO OF Barclays Capital
BARCLAYS 5 The North Colonnade
CAPITAL] Xxxxxx Xxxxx
Xxxxxx X00 0XX
Tel x00 (0)00 0000 0000
To: COUNTRYWIDE HOME LOANS, INC. (the "Counterparty")
Attn: XXXX XXXXXX
Fax No: 0-000-0000000
From: BARCLAYS BANK PLC (LONDON HEAD OFFICE) ("Barclays")
Date: March 23, 2006
Reference: 1139666B
Rate Cap Transaction Confirmation
The purpose of this facsimile (this "Confirmation") is to confirm the terms
and conditions of the Transaction entered into between us on the Trade Date
specified below (the "Transaction").
The definitions and provisions contained in the 2000 ISDA Definitions (the
"2000 Definitions"), as published by the International Swaps and Derivatives
Association, Inc. ("ISDA") are incorporated into this Confirmation. In the
event of any inconsistency between the 2000 Definitions and this Confirmation,
this Confirmation will govern for the purposes of the Transaction. References
herein to a "Transaction" shall be deemed to be references to a "Swap
Transaction" for the purposes of the 2000 Definitions. Capitalized terms used
in this Confirmation and not defined in this Confirmation or the 2000
Definitions shall have the respective meaning assigned in the Agreement. Each
party hereto agrees to make payment to the other party hereto in accordance
with the provisions of this Confirmation and of the Agreement. In this
Confirmation, "Party A" means Barclays and "Party B" means the Counterparty.
1. This Confirmation supersedes any previous Confirmation or other
communication with respect to the Transaction and evidences a
complete and binding agreement between you and us as to the terms of
the Swap Transaction to with this Confirmation relates. This
Confirmation is subject to the terms and conditions of the ISDA
Master Agreement dated as of May 17, 1996, between each of Party A
and Party B and shall form a part of and be subject to that ISDA
Master Agreement.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
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2. TRADE DETAILS
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Notional Amount: With respect to any Calculation Period the amount set forth for such period
in Schedule A attached hereto
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Trade Date: March 23, 2006
--------------------------------------------------------------------------------------------------------------------------
Effective Date: March 30, 2006
--------------------------------------------------------------------------------------------------------------------------
Termination Date: October 15, 2011; subject to adjustment in accordance with the Following
Business Day Convention
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Fixed Amounts:
--------------------------------------------------------------------------------------------------------------------------
Fixed Rate Payer: Counterparty
Fixed Rate Payer Payment March 24, 2006; subject to adjustment in accordance with the Following
Date(s): Business Day Convention
Fixed Amount USD20,000
--------------------------------------------------------------------------------------------------------------------------
Floating Amounts: To be determined in accordance with the following formula:
Greater of (i) (Floating Rate Option - Strike Rate) * Notional Amount *
Floating Rate Day Count Fraction; and (ii) zero.
--------------------------------------------------------------------------------------------------------------------------
Floating Rate Payer: Barclays.
Strike Rate Please see Schedule attached hereto
Floating Rate Payer Payment For each Calculation Period, the first Business Day prior to each Floating
Date(s): Rate Payer Period End Date.
Floating Rate Payer Period The 15th of each month in each year from (and including) May 15, 2006 to
End Date(s): (and including) the Termination Date; subject to adjustment in accordance
with the Following Business Day Convention
Floating Rate Option. USD-LIBOR-BBA
--------------------------------------------------------------------------------------------------------------------------
Floating Rate Day Count Actual / 360
Fraction:
--------------------------------------------------------------------------------------------------------------------------
Designated Maturity: 1 Month.
Reset Dates: The first day of Each Calculation Period.
Business Days: New York.
--------------------------------------------------------------------------------------------------------------------------
Governing Law: This Transaction and this Confirmation will be governed by and construed in
accordance with the laws of the State of New York (without reference to
choice of
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law doctrine except Section 5-1401 and Section 5-1402 of the New York
General Obligation Law).
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3. ACCOUNT DETAILS
--------------------------------------------------------------------------------------------------------------------------
Payments to Barclays: Correspondent: BARCLAYS BANK PLC
NEW YORK
FEED: 000000000
Beneficiary: BARCLAYS SWAPS
Beneficiary Account: 000-00000-0
--------------------------------------------------------------------------------------------------------------------------
Payments to Counterparty: Beneficiary Account: BANK OF
AMERICA NA-SAN FRANCISCO
FFED: 121000358
Beneficiary: COUNTRYWIDE HOME
LOANS, INC.
A/C: 12352 06200
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4. OFFICES
--------------------------------------------------------------------------------------------------------------------------
Barclays: Address for Notices:
0 Xxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
X00 0 XX
Tel: 00(00) 0000 0000
Fax: 00(00) 000 00000
--------------------------------------------------------------------------------------------------------------------------
Counterparty: Address for Notices:
X/X XXXXXXXXXXX XXXXXXX
XXXXXXXXXXX
00000 XXXXXX XXXX
MAIL STOP WLAR-43
XXXXXXXX XXXXXXX XX 00000
Tel: 0(000) 000-0000
Fax: 0(000) 0000000
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5. Left Intentionally Blank.
6. Assignment of the Transaction:
At the option of the Counterparty, upon payment of the fixed Amount and
satisfaction of any other conditions described herein, on a date in the
future, (the "Transfer Date") Barclays and an entity (the "Transferee") to be
designated by the Counterparty and approved by Barclays will enter into a
novation agreement (substantially in the form of the ISDA Form Novation
Agreement published by the International Swaps and Derivatives Association,
Inc., a copy of which is attached hereto as Annex A, and otherwise acceptable
to Barclays) under which, among other things, the Counterparty will transfer
its interest as the Counterparty to the Transaction under this Confirmation to
the Transferee, and under which the Transferee shall assume the rights and
obligations of the Counterparty to the Transaction under this Confirmation
(the `Transfer"). Upon transfer of this Transaction to the Transferee, all
references to Party B or the Counterparty or words of similar meaning or
import shall be deemed to be a reference to the Transferee.
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As of the date of such Transfer, the Transferee and Barclays will be deemed to
enter into an ISDA Master Agreement in the form of the 1992 ISDA Master
Agreement (Multicurrency -- Cross Border) published by the International Swaps
and Derivatives Association, Inc. (the "Form ISDA Master Agreement") without
any Schedule, except for the elections that are provided in Part 7 of this
Confirmation. As of the date of such Transfer, as between the Transferee and
Barclays, this Confirmation shall be deemed to supplement, form a part of, and
be subject to the Form ISDA Master Agreement (together, the "Transferred
Agreement"). All provisions contained in the Form ISDA Master Agreement shall
govern this Confirmation except as expressly modified herein.
7. Provisions Deemed Incorporated into this Agreement upon Transfer:
As of the date of Transfer, the following provisions i) through vii) will be
deemed to be incorporated into the Transferred Agreement:
i) The parties agree that subparagraph (ii) of Section 2(c) of the
ISDA Form Master Agreement will apply to any Transaction.
ii) Termination Provisions. For purposes of the Transferred
Agreement:
(a) "Specified Entity" means in relation to Party A for the
purpose of the Agreement:
Section 5(a)(v): None;
Section 5(a)(vi): None;
Section 5(a)(vii): None;
Section 5(b)(iv): None;
and in relation to Party B for the purpose of this
Agreement:
Section 5(a)(v): None;
Section 5(a)(vi): None;
Section 5(a)(vii): None;
Section 5(b)(iv): None.
(b) "Specified Transaction" shall be inapplicable to Party A
and Party B.
(c) The "Breath of Agreement" provisions of Section 5(a)(ii)
of the Agreement will be inapplicable to Party A and Party
B.
(d) The "Credit Support Default" provisions of Section
5(a)(iii) of the Agreement will be inapplicable to Party
B.
(e) The "Misrepresentation" provisions of Section 5(a)(iv) of
the Agreement will be inapplicable to Party A and Party B.
(f) The "Default Under Specified Transaction" provisions of
Section 5(a)(v) of the Agreement will be inapplicable to
Party A and Party B.
(g) The "Cross Default" provisions of Section 5(a)(vi) of the
Agreement will be inapplicable to Party A and Party B.
(h) The "Credit Event Upon Merger" provisions of Section
5(b)(iv) of the Agreement will be inapplicable to Party A
and Party B.
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(i) The "Bankruptcy" provision of Section 5(a)(vii)(2) will
not apply to Party B.
(j) The "Automatic Early Termination" provision of Section
6(a) of the Agreement will be inapplicable to Party A and
Party B.
(k) Payments on Early Termination. For the purpose of Section
6(e) of the Transferred Agreement:
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(l) "Termination Currency" means United States Dollars.
iii) Tax Representations.
Payer Tax Representations. For the purpose of Section 3(e), each of
Barclays and the Counterparty 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) of
this Agreement) 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(t) of this Agreement; (ii) the
satisfaction of the agreement of the other party contained
in Section 4(a)(i) or 4(a)(iii) of this Agreement and the
accuracy and effectiveness of any document provided by the
other party pursuant to Section 4(a)(i) or 4(a)(iii) of this
Agreement; and (iii) the satisfaction of the agreement of
the other party contained in Section 4(d) of this Agreement,
provided that it shall not be a breach of this
representation where reliance is placed on clause (ii) and
the other party does not deliver a form or document under
Section 4(a)(iii) by reason of material prejudice to its
legal or commercial position.
Barclays Payee Tax Representations. For the purpose of Section 3(f),
Barclays makes the following representations:
With respect to payments made to Barclays which are not
effectively connected to the U.S.: It is a non-U.S. branch of a
foreign person for U.S. federal income tax purposes.
With respect to payments made to Barclays which are effectively
connected to the U.S.: Each payment received or to be received
by it in connection with this Agreement will be effectively
connected with its conduct of a trade or business in the U.S.
Counterparty Payee Tax Representations. For the purpose of Section
3(f), Counterparty makes the following representation:
Counterparty represents that it is a "United States person" as
such term is defined in Section 7701(a)(30) of the Internal
Revenue Code of 1986, as amended.
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iv) Documents to be Delivered. For the purpose of Section 4(a):
(a) Tax forms, documents or certificates to be delivered are:
----------------------------------------------------------------------------------------------------------------
Party required to deliver Form/Document/Certificate Date by which to be delivered
document
----------------------------------------------------------------------------------------------------------------
Barclays and Counterparty Any document required or reasonably Promptly after the earlier of (i)
requested to allow the other party reasonable demand by either party or
to make payments under this (ii) within 30 days of the Transfer
Agreement without any deduction or Date.
withholding for or on the account
of any Tax or with such deduction or
withholding at a reduced rate.
----------------------------------------------------------------------------------------------------------------
(b) Other Documents to be delivered are:
----------------------------------------------------------------------------------------------------------------
Party required to Form/Document/Certificate Date by which to Covered by Section 3(d)
deliver document be delivered representation
Barclays and the Any documents required or Transfer Date. Yes
Counterparty reasonably requested by the
receiving party to evidence
authority of the delivering
party or its Credit Support
Provider, if any, to execute
and deliver this Agreement,
any Confirmation, and any Credit
Support Documents to which it is
a party, and to evidence the
authority of the delivering
party to its Credit Support
Provider to perform its obligations
under this Agreement, such
Confirmation and/or Credit Support
Document, as the case may be.
----------------------------------------------------------------------------------------------------------------
Barclays and the A certificate of an authorized Transfer Date Yes
Counterparty officer of the party, as to the
incumbency and authority of the
respective officers of the party
signing this agreement, any
relevant Credit Support Document,
or any Confirmation, as the case
may be.
----------------------------------------------------------------------------------------------------------------
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v) Miscellaneous.
(a) Address for Notices: For the purposes of Section 12(a) of
this Agreement:
Address for notices or communications to Barclays:
Address: 0 Xxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
X00 0XX
Facsimile: 00(00) 000 00000
Phone: 00(00) 000 00000
Address for notices or communications to the Counterparty:
To be provided by counterparty.
(b) Process Agent. For the purpose of Section 13(c):
Barclays appoints as its Process Agent: Barclays Bank PLC,
New York Branch.
Counterparty 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) of
this Agreement:
Barclays is a Multibranch Party and may act through
its London and New York offices.
Counterparty is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Barclays;
provided, however, that if an Event of Default occurs with
respect to Barclays, 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
Barclays or the Counterparty.
(g) Credit Support Provider.
With respect to Barclays: Not Applicable.
With respect to Counterparty: Not Applicable.
(h) Governing Law. This Agreement shall be governed by, and
construed in accordance with the laws of the State of New
York (without reference to choice of law doctrine except
Section 5-1401 and Section 5-1402 of the New York General
Obligation Law),
(i) Consent to Recording. Each party hereto consents and
agrees 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
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further notice of such monitoring or recording, and agrees
to notify its officers and employees of such monitoring or
recording.
(j) Waiver of Jury Trial. To the extent permitted by
applicable law, each party irrevocably waives any and all
right to trial by jury in any legal proceeding in
connection with this Agreement, any Credit Support
Document to which it is a Party, or any Transaction. Each
party also acknowledges that this waiver is a material
inducement to the other party's entering into this
Agreement.
(k) "Affiliate" Counterparty shall be deemed to not have any
Affiliates for purposes of this Agreement.
(l) 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 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.
vi) Additional Representations:
(a) Each party represents to the other party that (absent a
written agreement between the parties that expressly
imposes affirmative obligations to the contrary):-
(b) Non-Reliance. It is acting for its own account, and it has
made its own independent decisions to enter into the
Transaction and as to whether the Transaction is
appropriate or proper based upon its own judgment and upon
advice from such advisers as it has deemed necessary. It
is not relying on any communication (written or oral) of
the other party as investment advice or as a
recommendation to enter into the Transaction: it being
understood that information and explanations related to
the terms and conditions of the Transaction shall not be
considered investment advice or a recommendation to enter
into the Transaction. No communication (written or oral)
received from the other party shall be deemed to be an
assurance or guarantee as to the expected results of the
Transaction.
(c) Assessment and Understanding. It is capable of assessing
the merits of and understanding (on its own behalf or
through independent professional advice), and understands
and accepts, the terms, conditions and risks of the
Transaction. It is also capable of assuming, and assumes,
the risks of the Transaction.
8
(d) Status of Parties. The other party is not acting as a
fiduciary for or an adviser to it in respect of the
Transaction.
(e) Purpose. It is entering into the Transaction for the
purposes of hedging its assets or liabilities or in
connection with a line of business.
(f) Eligible Contract Participant Representation. It is an
"eligible contract participant" within the meaning of
Section 1(a)(12) of the Commodity Exchange Act, as
amended, including as amended by the Commodity Futures
Modernization Act of 2000.
vii) Other Provisions.
(a) Fully-Paid Party Protected. Notwithstanding the terms of
Sections 5 and 6 of the Agreement if Party B has satisfied
in full all of its payment obligations under Section
2(a)(i) of the Agreement, 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 the Agreement with respect to
Party B shall not constitute an Event of Default or
Potential Event of Default with respect to Party B as the
Defaulting Party and (b) Party A shall be entitled to
designate an Early Termination Event pursuant to Section 6
of the Agreement only as a result of a Termination Event
set forth in either Section 5(b)(i) or Section 5(b)(ii) of
the Agreement with respect to Party A as the Affected
Party or Section 5(b)(iii) of the Agreement with respect
to Party A as the Burdened Party. For purposes of the
Transaction to which this Confirmation relates, Party B's
only obligation under Section 2(a)(i) of the Agreement is
to pay the Fixed Amount on the Fixed Rate Payer Payment
Date.
(b) Set-Off. Notwithstanding any provision of this Agreement
or any other existing or future agreement, each party
irrevocably waives any and all rights it may have to set
off, net, recoup or otherwise withhold or suspend or
condition payment or performance of any obligation between
it and the other party hereunder against any obligation
between it and the other party under any other agreements.
The provisions for Set-Off set fort in Section 6(e) of the
Agreement shall not apply for purposes of this
Transaction.
(c) Proceedings. Party A shall not institute against or cause
any other person to institute against, or join any other
person in instituting against, the Trust, any bankruptcy,
reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any federal or
state bankruptcy, dissolution or similar law, for a period
of one year and one day (or, if longer, the applicable
preference period) following indefeasible payment in full
of the Certificates.
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The time of dealing will be confirmed by Barclays upon written request.
Barclays is regulated by the Financial Services Authority. Barclays is acting
for its own account in respect of this Transaction,
Please confirm that the foregoing correctly sets forth all the terms and
conditions of our agreement with respect to the Transaction by responding
within three (3) Business Days by promptly signing in the space provided below
and both (i) faxing the signed copy to Incoming Transaction Documentation,
Barclays Capital Global OTC Transaction Documentation & Management, Global
Operations, Fax x(00) 00-0000-0000/6857, Te-11 x(00) 00-0000-0000/6904/6965,
and (ii) mailing the signed copy to Barclays Bank PLC, 5 Xxx Xxxxx Xxxxxxxxx,
Xxxxxx Xxxxx, Xxxxxx X00 0XX, Attention of Incoming Transaction Documentation,
Barclays Capital Global OTC Transaction Documentation & Management, Global
Operation. Your failure to respond within such period shall not affect the
validity or enforceability of the Transaction against you. This facsimile
shall be the only documentation in respect of the Transaction and accordingly
no hard copy versions of this Confirmation for this Transaction shall be
provided unless the Counterparty requests.
For and on behalf of For and on behalf of
BARCLAYS BANK PLC COUNTRYWIDE HOME LOANS, INC.
-------------------------------------- --------------------------------------
Name: Xxxx Xxxxxxxxxx Name: XXXX XXXXXX
Title: Authorised Signatory Title: MANAGING DIRECTOR AND ASSISTANT
TREASURER
Date: Date:
Barclays Bank PLC and its Affiliates, including Barclays Capital Inc., may
share with each other information, including non-public credit information,
concerning its clients and prospective clients. If you do not want such
information to be shared, you must write to the Director of Compliance,
Barclays Bank PLC, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000.
10
Schedule A to the Confirmation dated as of March 23, 2006
Re: Reference Number 1139666B
PERIOD START DATE PERIOD END DATE NOTIONAL (in USD) STRIKE RATE
30-Mar-06 15-May-06 1,330,000,000 7.54782%
15-May-06 15-Jun-06 1,286,197,965 16.04505%
15-Jun-06 15-Jul-06 1,243,838,501 16.58955%
15-Jul-06 15-Aug-06 1,202,874,097 16.04505%
15-Aug-06 15-Sep-06 1,163,258,810 16.04505%
15-Sep-06 15-Oct-06 1,124,948,206 16.58955%
15-Oct-06 15-Nov-06 1,087,899,319 16.04505%
15-Nov-06 15-Dec-06 1,049,250,398 16.58955%
15-Dec-06 I5-Jan-07 1,011,737,490 16.04505%
IS-Jan-07 15-Feb-07 977,264,220 16.04505%
15-Feb-07 15-Mar-07 944,860,126 17.79524%
15-Mar-07 15-Apr-07 913,523,224 16.04505%
15-Apr-07 15-May-07 883,218,368 16.58955%
15-May-07 15-Jun-07 853,911,567 16.04505%
15-Jun-07 15-Jul-07 825,569,953 16.58955%
15-Jul-07 15-Aug-07 798,161,737 16.04505%
15-Aug-07 I5-Sep-07 771,656,179 16.04505%
I5-Sep-07 15-Oct-07 746,023,552 16.58955%
15-Oct-07 15-Nov-07 721,235,107 16.04505%
15-Nov-07 15-Dec-07 697,263,040 16.58955%
15-Dec-07 15-Jan-08 674,080,466 16.04505%
15-Jan-08 15-Feb-08 651,661,384 16.04505%
15-Feb-08 15-Mar-08 629,980,649 17.17161%
15-Mar-08 15-Apr-08 609,013,944 16.04505%
15-Apr-08 15-May-08 588,737,753 16.58955%
15-May-08 15-Jun-08 569,129,336 16.04505%
15-Jun-08 15-Jul-08 550,166,700 16.58955%
15-Jul-08 15-Aug-08 531,828,576 16.04505%
15-Aug-08 15-Sep-08 514,094,398 16.04505%
15-Sep-08 15-Oct-08 496,944,275 16.58955%
15-Oct-08 15-Nov-08 480,358,971 16.04505%
15-Nov-08 15-Dec-08 464,319,886 16.58955%
15-Dec-08 15-Jan-09 448,809,029 16.04505%
15-Jan-09 15-Feb-09 433,809,005 16.04505%
15-Feb-09 15-Mar-09 419,302,739 17.79524%
15-Mar-09 15-Apr-09 405,274,232 16.04505%
15-Apr-09 15-May-09 391,707,749 16.58955%
15-May-09 15-Jun-09 378,588,073 16.04505%
15-Jun-09 15-Jul-09 365,900,488 16.58955%
15-Jul-09 15-Aug-09 353,630,764 16.04505%
15-Aug-09 15-Sep-09 341,765,139 16.04505%
11
15-Sep-09 15-Oct-09 330,290,303 16.58955%
15-Oct-09 15-Nov-09 319,193,386 16.04505%
15-Nov-09 15-Dec-09 308,461,941 16,58955%
15-Dec-09 15-Jan-10 298,083,932 16.04505%
15-Jan-10 15-Feb-I0 288,047,718 16.04505%
15-Feb-10 15-Mar-10 278,342,042 17.79523%
15-Mar-10 15-Apr-10 268,956,018 16.04505%
15-Apr-10 15-May-10 259,879,118 16.58955%
15-May-10 15-Jun-10 251,101,162 16.04505%
15-Jun-10 15-Jul-10 242,612,303 16.58955%
15-Jul-10 15-Aug-10 234,403,020 16.04505%
15-Aug-10 15-Sep-10 226,464,107 16.04505%
15-Sep-10 15-Oct-10 218,786,657 16.58955%
15-Oct-10 15-Nov-10 211,362,060 16.04505%
15-Nov-10 15-Dec-10 204,181,988 16.58955%
15-Dec-10 15-Jan-11 197,238,388 16.04504%
15-Jan-11 15-Feb-11 190,523,471 16.04504%
15-Feb-II 15-Mar-11 184,029,707 17.79523%
15-Mar-11 15-Apr-11 177,749,811 16.04504%
15-Apr-11 15-May-11 171,676,740 16.58955%
15-May-11 15-Jun-11 164,244,851 16.04504%
15-Jun-I1 15-Jul-11 157,122,691 16.58954%
15-Jul-1 1 15-Aug-11 150,297,352 16.04504%
15-Aug-11 1 15-Sep-I1 143,756,464 16.04504%
15-Sep-11 15-Oct-11 137,488,172 16.58954%
* All dates subject to adjustment in accordance with Following Business Day Convention
12
Exhibit II
Item 1115 Agreement dated as of February 16, 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 BARCLAYS BANK PLC, as
counterparty (the "Counterparty").
RECITALS
WHEREAS, CWABS, CWMBS, CWALT and CWHEQ each have filed
Registration Statements on Form S-3 (each, a "Registration Statement") with
the Securities and Exchange Commission (the "Commission") for purposes of
offering mortgage backed or asset-backed notes and/or certificates (the
"Securities") through special purpose vehicles (each, an "SPV").
WHEREAS, from time to time, on the closing date (the "Closing
Date") of a transaction pursuant to which Securities are offered (each, a
"Transaction"), the Counterparty and CHL or an underwriter or dealer with
respect to the Transaction, enter into certain derivative agreements (each, a
"Derivative Agreement"), including interest rate caps and interest rate or
currency swaps, for purposes of providing certain yield enhancements that are
assigned to the SPV or the related trustee on behalf of the SPV or a swap or
corridor contract administrator (each, an "Administrator").
NOW, THEREFORE, in consideration of the mutual agreements set
forth herein and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereby agree as follows:
Section 1. Definitions
Company Information: As defined in Section 4(a)(i).
Company Financial Information: As defined in Section 2(a)(ii).
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 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 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);
2
(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 (if
not incorporated by reference) and hereby authorizes the
related Depositor to incorporate by reference the
financial data required by Item 1115(b)(2) of Regulation
AB; and
(B) if applicable, cause its accountants to issue their
consent to the filing or the incorporation by reference 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 (1) notify the related Depositor in writing
of 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 (2) provide
to the related Depositor a description of such proceedings,
affiliations or relationships as described in Section
2(b)(i)(1);
(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)
4
3
provide current Company Financial Information as required under
Item 1115(b) of Regulation AB to the related Depositor in an
XXXXX-compatible form (if not incorporated by reference) and
hereby authorizes the related Depositor to incorporate by
reference the financial data required by Item 1115(b)(2) of
Regulation AB, and (2) if applicable, cause 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
(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 (if not incorporated by reference) and hereby authorizes
the related Depositor to incorporate by reference the financial
data required by Item 1115(b)(2) of Regulation AB, (2) if
applicable, cause 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 Counterparty or the entity that consolidates the
Counterparty is required to file reports with the Commission
pursuant to section 13(a) or 15(d) of the Exchange Act.
(ii) The Counterparty or the entity that consolidates the
Counterparty has filed all reports and other materials required
to be filed by such requirements during the preceding 12 months
(or such shorter period that such party was required to file
such reports and materials).
(iii) The reports filed by the Counterparty, or entity that
consolidates the Counterparty, include (or properly incorporate
by reference) the financial statements of the Counterparty.
4
(iv) 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.
(v) 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.
(vi) The Company Financial Information and other Company Information
included or incorporated by reference in the Registration
Statement (including through filing on an Exchange Act Report),
at the time they were or hereafter are filed with the
Commission, complied in all material respects with the
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 the Counterparty has provided Company Financial Information that
is incorporated by reference into the Registration Statement of the
related Depositor, the Counterparty, so long as the related
Depositor is required to file Exchange Act Reports with respect to
the SPV, will file promptly all documents required to be filed with
the Commission pursuant to Section 13 or 14 of the 1934 Act.
(c) If at any time the representations and warranties set forth in
3(a)(i) through (iii) are no longer true and correct, the
Counterparty shall provide notice to the related Depositor, and if
any Company Financial Information is required to be included in the
Registration Statement, or the Exchange Act Reports of the SPV, will
provide to the related Depositor such Company Financial Information
in XXXXX-compatible format no later than the 25th calendar day of
the month in which any of the representations or warranties in
Section 3(a)(i) through (iii) ceased to be correct.
5
(d) 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 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 (each, a "Countrywide Indemnified Party"), and shall hold
each of them harmless from and against any losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related
costs, judgments, and any other costs, fees and expenses that any of
them may sustain arising out of or based upon:
(i) (A) any untrue statement of a material fact contained or
alleged to be contained in any information, report,
accountants' consent or other material provided in written or
electronic form under Section 2 by or on behalf of the
Counterparty (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;
(ii) any failure by the Counterparty to deliver any information,
certification, accountants' consent or other material or to
assign the Derivative Agreement when and as required under
Section 2; or
(iii) any breach by the Counterparty of a representation or warranty
set forth in Section 3(a) and made as of a date prior to the
Closing Date, 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.
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
6
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
7
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) (i) Any failure by the Counterparty to deliver any information,
report, accountants' consent or other material when and in any
case only as required under Section 2 or any breach by the
Counterparty of a representation or warranty set forth in
Section 3 and made as of a date prior to the Closing Date, to
the extent that such breach is not cured by the Closing Date
(or in the case of information needed for purposes of printing
the Prospectus Supplement, the date of printing of the
Prospectus Supplement), 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).
(i) If the Counterparty has failed to deliver any information,
report, or accountants' consent when and as required under
Section 2, which continues unremedied for the lesser of ten
calendar days after the date on which such information, report,
or accountants' consent was required to be delivered or such
period in which the applicable Exchange Act Report for which
such information is required can be timely filed (without
taking into account any extensions permitted to be filed), and
the Counterparty has not, at its own cost, within the period in
which the applicable Exchange Act Report for which such
information is required can be timely filed caused another
entity (which meets any applicable ratings threshold in the
Derivative Agreement) to replace the Counterparty as party to
the Derivative Agreement that (i) has signed an agreement with
CHL and the
8
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 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).
(ii) 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 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.
9
(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 reasonably necessary or expedient to
effectuate and carry out this Agreement.
(h) Severability. Any provision hereof which is prohibited or
unenforceable shall be ineffective only to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions hereof.
(i) Integration. This Agreement contains the entire understanding of the
parties with respect to the subject matter hereof. There are no
restrictions, agreements, promises, representations, warranties,
covenants or undertakings with respect to the subject matter hereof
other than those expressly set forth or referred to herein. This
Agreement supersedes all prior agreements and understandings between
the parties with respect to its subject matter.
10
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:
11
BARCLAYS BANK PLC
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: Managing Director
12
