EXHIBIT 99.5
------------
The Item 1115 Agreement
BEAR XXXXXXX FINANCIAL PRODUCTS INC.
000 XXXXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
000-000-0000
DATE: August 30, 2006
TO: Citibank, N.A., New York Branch
ATTENTION: Xxxx Xxxxx
TELEPHONE: 000-000-0000
FACSIMILE: 000-000-0000
FROM: Derivatives Documentation
TELEPHONE: 000-000-0000
FACSIMILE: 000-000-0000
SUBJECT: Fixed Income Derivatives Confirmation and Agreement
REFERENCE NUMBER: XXXXX0000
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
Citibank, N.A., New York Branch ("Counterparty"). This Agreement, which
evidences a complete and binding agreement between you and us 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 the 2000 ISDA Definitions (the "Definitions"),
as published by the International Swaps and Derivatives Association, Inc.
("ISDA"). You and we 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") but, rather, an ISDA Form Master
Agreement shall be deemed to have been executed by you and us 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 below. 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:
Type of Transaction: Rate Cap
Notional Amount: With respect to any Calculation
Period, the amount set forth for
such period in Schedule I attached
hereto
Trade Date: August 29, 2006
Effective Date: August 30, 2006
Reference Number: XXXXX0000
Citibank, N.A., New York Branch
August 30, 2006
Page 2 of 12
Termination Date: May 25, 2011
Fixed Amount (Premium):
Fixed Rate Payer: Counterparty
Fixed Rate Payer
Payment Date: August 30, 2006
Fixed Amount: USD 81,000
Floating Amounts:
Floating Rate Payer: BSFP
Cap Rate: 5.80000%
Floating Rate Payer
Period End Dates: The 25th calendar day of each month
during the Term of this Transaction,
commencing September 25, 2006 and
ending on the Termination Date, with
No Adjustment.
Floating Rate Payer
Payment Dates: Early Payment shall be applicable.
The Floating Rate Payer Payment
Dates shall be two Business Days
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 8.80000% then the Floating Rate
for such Calculation Period shall be
deemed to be 8.80000%.
Designated Maturity: One month
Floating Rate Day
Count Fraction: 30/360
Reset Dates: The first day of each Calculation
Period.
Compounding: Inapplicable
Business Days: New York
Reference Number: XXXXX0000
Citibank, N.A., New York Branch
August 30, 2006
Page 3 of 12
Business Day Convention: 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) shall not apply to BSFP or
Counterparty.
(c) The "Cross Default" provisions of Section 5(a)(vi) will not apply to BSFP or
to Counterparty.
(d) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) will not apply
to BSFP or Counterparty.
(e) The "Automatic Early Termination" provision of Section 6(a) 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
Reference Number: XXXXX0000
Citibank, N.A., New York Branch
August 30, 2006
Page 4 of 12
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) of
the ISDA Form Master Agreement 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:
Party required to deliver document Form/Document/ Date by which to
Certificate be delivered
BSFP and Any document required or Promptly after the earlier of (i) reasonable demand
the Counterparty reasonably requested to allow the by either party or (ii) learning that such form or
other party to make payments document is required
under this Agreement without any
deduction or withholding for or
on the account of any Tax or with
such deduction or withholding at
a reduced rate
(2) Other documents to be delivered are:
Party required to Form/Document/ Date by which to Covered by Section 3(d)
deliver document Certificate be delivered Representation
BSFP and Any documents required by Upon the execution and Yes
the Counterparty the receiving party to delivery of this Agreement
evidence the authority of and such Confirmation
the delivering party
Reference Number: XXXXX0000
Citibank, N.A., New York Branch
August 30, 2006
Page 5 of 12
Party required to Form/Document/ Date by which to Covered by Section 3(d)
deliver document Certificate be delivered Representation
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
BSFP and A certificate of an authorized Upon the execution and Yes
the Counterparty officer of the party, as to delivery of this Agreement
the incumbency and authority and such Confirmation
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
Reference Number: XXXXX0000
Citibank, N.A., New York Branch
August 30, 2006
Page 6 of 12
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: Citibank, N.A.
000 Xxxxxxxxx Xxxxxx - 0xx Xxxxx
Attention: Xxxx Xxxxx
Facsimile: 000-000-0000
Phone: 000-000-0000
(For all purposes)
(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 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.
Reference Number: XXXXX0000
Citibank, N.A., New York Branch
August 30, 2006
Page 7 of 12
(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 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. 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.
Reference Number: XXXXX0000
Citibank, N.A., New York Branch
August 30, 2006
Page 8 of 12
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) of
the ISDA Form Master Agreement.
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
(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.
(5) Eligible Contract Participant. Each party constitutes an
"eligible contract participant" as such term is defined in Section 1(a)12 of the
Commodity Exchange Act, as amended."
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.
Reference Number: XXXXX0000
Citibank, N.A., New York Branch
August 30, 2006
Page 9 of 12
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:
Citibank, N.A. New York
ABA # 000000000
Account No. 00000000
Financial Futures
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 Xxxxx Xxxxxx 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.
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: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxx
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.
CITIBANK, N.A., NEW YORK BRANCH
By: /s/ Xxxxx X. Xxxxxxxxxxxx
-------------------------------
Xxxxx X. Xxxxxxxxxxxx
Authorized Signatory
Reference Number: XXXXX0000
Citibank, N.A., New York Branch
August 30, 2006
Page 10 of 12
As authorized agent or officer for Citibank, N.A.
Name:
Title:
lm
Reference Number: XXXXX0000
Citibank, N.A., New York Branch
August 30, 2006
Page 11 of 12
SCHEDULE I
From and Notional Amount
including To but excluding (USD)
--------- ---------------- -----
Effective Date 9/25/2006 35,000,000
9/25/2006 10/25/2006 34,527,146
10/25/2006 11/25/2006 33,981,005
11/25/2006 12/25/2006 33,362,389
12/25/2006 1/25/2007 32,672,348
1/25/2007 2/25/2007 31,912,199
2/25/2007 3/25/2007 31,083,514
3/25/2007 4/25/2007 30,188,125
4/25/2007 5/25/2007 29,228,116
5/25/2007 6/25/2007 28,205,822
6/25/2007 7/25/2007 27,123,816
7/25/2007 8/25/2007 25,984,908
8/25/2007 9/25/2007 24,792,131
9/25/2007 10/25/2007 23,639,720
10/25/2007 11/25/2007 22,527,116
11/25/2007 12/25/2007 21,453,763
12/25/2007 1/25/2008 20,419,104
1/25/2008 2/25/2008 19,422,581
2/25/2008 3/25/2008 18,463,638
3/25/2008 4/25/2008 17,541,721
4/25/2008 5/25/2008 16,656,274
5/25/2008 6/25/2008 15,806,743
6/25/2008 7/25/2008 14,992,572
7/25/2008 8/25/2008 14,213,208
8/25/2008 9/25/2008 13,468,097
9/25/2008 10/25/2008 12,756,685
10/25/2008 11/25/2008 12,078,420
11/25/2008 12/25/2008 11,432,748
12/25/2008 1/25/2009 10,819,116
1/25/2009 2/25/2009 10,236,973
2/25/2009 3/25/2009 9,685,766
3/25/2009 4/25/2009 9,150,777
4/25/2009 5/25/2009 8,631,684
5/25/2009 6/25/2009 8,128,171
6/25/2009 7/25/2009 7,639,929
7/25/2009 8/25/2009 7,166,653
8/25/2009 9/25/2009 6,708,045
9/25/2009 10/25/2009 6,263,810
10/25/2009 11/25/2009 5,833,663
11/25/2009 12/25/2009 5,417,319
12/25/2009 1/25/2010 5,014,502
Reference Number: XXXXX0000
Citibank, N.A., New York Branch
August 30, 2006
Page 12 of 12
1/25/2010 2/25/2010 4,624,940
2/25/2010 3/25/2010 4,248,365
3/25/2010 4/25/2010 3,884,514
4/25/2010 5/25/2010 3,533,131
5/25/2010 6/25/2010 3,193,962
6/25/2010 7/25/2010 2,866,760
7/25/2010 8/25/2010 2,551,280
8/25/2010 9/25/2010 2,247,285
9/25/2010 10/25/2010 1,954,539
10/25/2010 11/25/2010 1,672,812
11/25/2010 12/25/2010 1,401,877
12/25/2010 1/25/2011 1,141,514
1/25/2011 2/25/2011 891,504
2/25/2011 3/25/2011 651,634
3/25/2011 4/25/2011 421,693
4/25/2011 Termination Date 201,477
ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT, dated as of August 30, 2006 ("Assignment
Agreement"), among CITIBANK N.A. NEW YORK BRANCH ("Assignor"), THE BANK OF NEW
YORK ("Assignee"), as Contract Administrator for CWALT, Inc. Alternative Loan
Trust 2006-28CB, pursuant to a Contract Administration Agreement (the "Contract
Administration Agreement") dated as of August 30, 2006, and BEAR XXXXXXX
FINANCIAL PRODUCTS INC. ("Remaining Party").
W I T N E S S E T H:
WHEREAS, effective as of August 30 2006, Assignor desires to assign all of
its rights and delegate all of its duties and obligations to Assignee under
certain Transactions (the "Assigned Transactions") as evidenced by certain
Confirmations, one with a Trade Date of August 29, 2006, whose BEAR XXXXXXX
FINANCIAL PRODUCTS INC. reference number is FXNEC8642, one with a Trade Date of
August 29, 2006, whose BEAR XXXXXXX FINANCIAL PRODUCTS INC. reference number is
XXXXX0000 and one with a Trade Date of August 29, 2006, whose BEAR XXXXXXX
FINANCIAL PRODUCTS INC. reference number is FXNEC8645 (the "Confirmations"),
copies of which are attached hereto as Exhibit I;
WHEREAS, Assignor and Remaining Party executed and delivered the
Confirmations 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
Transactions and the Confirmations, 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 August 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 Transactions and
the Confirmations 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 Transactions and the Confirmations, and
Assignor hereby terminates its rights under and in respect of the Assigned
Transactions; provided, that such release shall not affect
Assignor's obligation to pay each Fixed Amount (Premium) in accordance with the
terms of the Assigned Transactions and the Confirmations.
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 Contract Administrator under the Contract
Administration Agreement; and (b) in no case shall BNY (or any person acting as
successor Contract Administrator under the 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 Transactions, 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 Transactions
pursuant to this Assignment Agreement.
5. Governing Agreement. The Assigned Transactions and the Confirmations
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 dates of
the Transactions (the "Assignee Agreement"). The Confirmations, 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 Confirmations
and thus the Assigned Transactions 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."
(b) The Item 1115 Agreement dated as of January 30, 2006, between
Countrywide Home Loans, Inc., CWABS, INC., CWMBS, Inc., CWALT,
Inc., CWHEQ, Inc. and Bear Xxxxxxx Financial Products Inc., 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:
2
(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.
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 Confirmations 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 Transactions 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 Transactions 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 Transactions, the
addresses for notices or communications are as follows: (i) in the case of
Assignor, Citibank N.A. New York Branch, 000 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, XX 00000, XXX, Attention: Confirmations Unit, 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, Xxx Xxxx, Xxx Xxxx
00000, Attention: Corporate Trust MBS Administration, CWALT, Series 2006-28CB 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 Transactions shall be made by wire transfer according to the following
instructions:
The Bank of New York
3
New York, NY
ABA # 000-000-000
GLA # 111-565
For Further Credit: TAS A/C 580961
Attn: Xxxxxxx X. Xxxxxx
Tel: 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.
4
IN WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement
as of the date first above written.
CITIBANK N.A. NEW YORK BRANCH
By: /s/ Xxxxx X. Xxxxxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxxxxx
------------------------------------
Title: Authorized Signatory
-----------------------------------
THE BANK OF NEW YORK, AS CONTRACT
ADMINISTRATOR FOR CWALT, INC. ALTERNATIVE
LOAN TRUST, SERIES 2006-28CB
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
------------------------------------
Title: Assistant Treasurer
-----------------------------------
BEAR XXXXXXX FINANCIAL PRODUCTS INC.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
------------------------------------
Title: Authorized Signatory
-----------------------------------
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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
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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 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.
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(g) Additional Documents. Each party hereto agrees to execute any and
all further documents and writings and to perform such other actions
which may be or become necessary or expedient to effectuate and
carry out this Agreement.
(h) Severability. Any provision hereof which is prohibited or
unenforceable shall be ineffective only to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions hereof.
(i) Integration. This Agreement contains the entire understanding of the
parties with respect to the subject matter hereof. There are no
restrictions, agreements, promises, representations, warranties,
covenants or undertakings with respect to the subject matter hereof
other than those expressly set forth or referred to herein. This
Agreement supersedes all prior agreements and understandings between
the parties with respect to its subject matter.
(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/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: V.P/
CWMBS, INC.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: V.P.
CWALT, INC.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: V.P.
CWHEQ, INC.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: V.P.
COUNTRYWIDE HOME LOANS, INC.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: V.P.
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BEAR XXXXXXX FINANCIAL PRODUCTS INC.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
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