Exhibit 99.4
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10
ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT, dated as of March 30, 2006 ("Assignment
Agreement"), among COUNTRYWIDE HOME LOANS, INC. ("Assignor"), THE BANK OF NEW
YORK ("Assignee"), as Corridor Contract Administrator for CWHEQ Home Equity
Loan Trust, Series 2006-S1, pursuant to a Corridor Contract Administration
Agreement (the "Corridor Contract Administration Agreement") dated as of March
30, 2006, and BEAR XXXXXXX FINANCIAL PRODUCTS INC. ("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 20, 2006, whose BEAR XXXXXXX FINANCIAL
PRODUCTS INC. reference number is FXNEC8048 (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 (Premium) in accordance with the terms of
the Assigned Transaction and the Confirmation.
3. Limitation on Liability. Assignor and Remaining Party agree to the
following: (a) The Bank of New York ("BNY") is entering into this Assignment
Agreement solely in its capacity as Corridor Contract Administrator under the
Corridor Contract Administration Agreement; and (b) in no case shall BNY (or
any person acting as successor Corridor Contract Administrator under the
Corridor Contract Administration Agreement) be personally liable for or on
account of any of the statements, representations, warranties, covenants or
obligations stated to be those of Assignee under the terms of the Assigned
Transaction, all such liability, if any, being expressly waived by Assignor
and Remaining Party and any person claiming by, through or under either such
party.
4. Consent and Acknowledgment of Remaining Party. Remaining Party hereby
consents to the assignment and delegation by Assignor to Assignee of all the
rights, duties, and obligations of Assignor under the Assigned Transaction
pursuant to this Assignment Agreement.
5. Governing Agreement. The Assigned Transaction and the Confirmation
shall form a part of, and be subject to, the ISDA Form Master Agreement, as if
Assignee and Remaining Party had executed such agreement on the trade date of
the Transaction (the "Assignee Agreement"). The Confirmation, together with
all other documents referring to the ISDA Form Master Agreement confirming
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 is each hereby amended as follows:
(a) The following additional provision shall be added as a new Section
6:
"Regulation AB Compliance. Party A and Party B 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 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 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:
(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
2
(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, The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Corporate Trust MBS Administration, CWHEQ, Series 2006-S1 or
such other address as may be hereafter furnished in writing to Assignor and
Remaining Party; and (iii) in the case of Remaining Party,
Address: 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: DPC Manager - 36th Floor
Telex No. 000-000-0000
copy to: Xxx Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx, 00000
Attention: Derivative Operations - 7th Floor
Telex No: 000-000-0000
such other address as may be hereafter furnished in writing to Assignor
and Assignee.
11. Payments. All payments (if any) remitted by Remaining Party under the
Assigned Transaction shall be made by wire transfer according to the following
instructions:
The Bank of New York
New York, NY
ABA # 000-000-000
GLA # 111-565
For Further Credit: TAS A/C 580474
3
Attn: Xxx Xxxxx Xxxxxxx 000-000-0000
Fax: 000-000-0000
12. Counterparts. This Assignment Agreement may be executed and delivered
in counterparts (including by facsimile transmission), each of which when
executed shall be deemed to be an original but all of which taken together
shall constitute one and the same instrument.
4
IN WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement
as of the date first above written.
COUNTRYWIDE HOME LOANS, INC.
By: /s/ Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
--------------------------------
Title: Senior Vice President
-------------------------------
THE BANK OF NEW YORK, AS CORRIDOR
CONTRACT ADMINISTRATOR FOR CWHEQ HOME
EQUITY LOAN TRUST, SERIES 2006-S1
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxx
--------------------------------
Title: Assistant Vice President
-------------------------------
BEAR XXXXXXX FINANCIAL PRODUCTS INC.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
5
EXHIBIT I
BEAR XXXXXXX
BEAR XXXXXXX FINANCIAL PRODUCTS INC.
000 XXXXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
000-000-0000
DATE: March 00, 0000 XXXXX 0000-X0
(Xxx xxxxxxxx)
TO: Countrywide Home Loans, Inc.
ATTENTION: Xx. Xxxx Xxxxx
TELEPHONE: 0-000-000-0000
FACSIMILE: 0-000-000-0000
FAX: 0-000-000-0000
FROM: Derivatives Documentation
TELEPHONE: 000-000-0000
FACSIMILE: 000-000-0000
SUBJECT: Fixed Income Derivatives Confirmation and Agreement
REFERENCE NUMBER: FXNEC8O48 -- Amended
This Confirmation and Agreement is amended as of March 28, 2006 and supersedes
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all previous Confirmations and Agreements regarding this Transaction.
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The purpose of this letter agreement ("Agreement") is to confirm the terms and
conditions of the Transaction entered into on the Trade Date specified below
(the "Transaction") between Bear Xxxxxxx Financial Products Inc. ("BSFP") and
Countrywide Home Loans, Inc., ("Counterparty"). This Agreement, which
evidences a complete and binding agreement between BSFP and Counterparty to
enter into the Transaction on the terms set forth below, constitutes a
"Confirmation" as referred to in the "ISDA Form Master Agreement" (as defined
below), as well as a "Schedule" as referred to in the ISDA Form Master
Agreement.
1. This Agreement is subject to and incorporates the 2000 ISDA Definitions
(the "Definitions"), as published by the International Swaps and
Derivatives Association, Inc, ("ISDA"). BSFP and Counterparty have
agreed to enter into this Agreement in lieu of negotiating a Schedule to
the 1992 ISDA Master Agreement (Multicurrency--Cross Border) form (the
"ISDA Form Master Agreement"). An ISDA Form Master Agreement shall be
deemed to have been executed by BSFP and Counterparty on the date we
entered into the Transaction, All provisions contained in, or
incorporated by reference to, the ISDA Form Master Agreement shall
govern the Transaction referenced in this Confirmation except as
expressly modified herein. In the event of any inconsistency between the
provisions of this Agreement and the Definitions or the ISDA Form Master
Agreement, this Agreement shall prevail for purposes of the Transaction.
2. The terms of the particular Transaction to which this Confirmation
relates are as follows:
/s/
Reference Number: FXNEC8048 - Amended
Countrywide Home Loans, Inc.
March 28, 2006
Page 2 of 11
Type of Transaction: Rate Cap
Notional Amount: With respect to any Calculation Period,
the amount set forth for such period in
the Schedule of Notional Amounts and Cap
Rates attached hereto.
Trade Date: March 20, 2006
Effective Date: Xxxxx 00, 0000
Xxxxxxxxxxx Date: May 25, 2007, subject to adjustment in
accordance with the Business Day Convention.
Fixed Amount (Premium):
Fixed Rate Payer: Counterparty
Fixed Rate Payer
Payment Date: March 22, 2006
Fixed Amount: USD 6,000
Floating Amounts:
Floating Rate Payer: BSFP
Cap Rate: With respect to any Calculation Period,
the rate set forth for such period in the
Schedule of Notional Amounts and Cap
Rates attached hereto.
Floating Rate Payer
Period End Dates: The 25th calendar day of each month during
the Term of this Transaction, commencing
April 25, 2006 and ending on the
Termination Date, subject to adjustment in
accordance with the Business Day
Convention.
Floating Rate Payer
Payment Dates: Early Payment shall be applicable. One
Business Day preceding each Floating Rate
Payer Period End Date.
Floating Rate Option: USD-LIBOR-BBA, provided, however, that if
the Floating Rate determined from such
Floating Rate Option for any Calculation
Period is greater than 9.00000% then the
Floating Rate for such Calculation Period
shall be deemed to be 9.00000%.
Reference Number: FXNEC8O48 - Amended
Countrywide Home Loans, Inc.
March 28, 2006
Page 3 of 11
Designated Maturity: One month
Floating Rate Day
Count Fraction: Actual/360
Reset Dates: The first day of each Calculation Period.
Compounding: Inapplicable
Business Days for payments: New York
Business Day Convention: Modified Following
3. Additional Provisions: Each party hereto is hereby advised and
acknowledges that the other party has
engaged in (or refrained from engaging in)
substantial financial transactions and has
taken (or refrained from taking) other
material actions in reliance upon the
entry by the parties into the Transaction
being entered into on the terms and
conditions set forth herein and in the
Confirmation relating to such Transaction,
as applicable. This paragraph shall be
deemed repeated on the trade date of each
Transaction.
4. Provisions Deemed Incorporated in a Schedule to the ISDA Form Master
Agreement:
t) The parties agree that subparagraph (ii) of Section 2(c) of the ISDA
Form Master Agreement will apply to any Transaction.
2) Termination Provisions For purposes of the ISDA Form Master Agreement:
(a) "Specified Entity" is not applicable to BSFP or Counterparty for any
purpose.
(b) "Specified Transaction" is not applicable to BSFP or Counterparty for any
purpose, and, accordingly, Section 5(a)(v) of the ISDA Form Master Agreement
shall not apply to BSFP or Counterparty.
(c) The "Cross Default" provisions of Section 5(a)(vi) of the ISDA Form Master
Agreement will not apply to BSFP or to Counterparty.
(d) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) of the ISDA
Form Master Agreement will not apply to BSFP or to Counterparty.
Reference Number: FXNEC8048 - Amended
Countrywide Home Loans, Inc.
March 28, 2006
Page 4 of 11
(e) The "Automatic Early Termination" provision of Section 6(a) of the ISDA
Form Master Agreement will not apply to BSFP or to Counterparty.
(f) Payments on Early Termination. For the purpose of Section 6(c) of the
ISDA Form Master Agreement:
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(g) "Termination Currency" means United States Dollars.
3) Tax Representations. Not applicable
4) Limitation on Events of Default, Notwithstanding the terms of Sections 5
and 6 of the ISDA Form Master Agreement, if at any time and so long as the
Counterparty has satisfied in full all its payment obligations under Section
2(a)(i) of the ISDA Form Master Agreement and has at the time no future
payment obligations, whether absolute or contingent, under such Section, then
unless BSFP is required pursuant to appropriate proceedings to return to the
Counterparty or otherwise returns to the Counterparty upon demand of the
Counterparty any portion of any such payment, (a) the occurrence of an event
described in Section 5(a) of the ISDA Form Master Agreement with respect to
the Counterparty shall not constitute an Event of Default or Potential Event
of Default with respect to the Counterparty as Defaulting Party and (b) BSFP
shall be entitled to designate an Early Termination Date pursuant to Section 6
of the ISDA Form Master Agreement only as a result of the occurrence of a
Termination Event set forth in either Section 5(b)(i) or 5(b)(ii) of the ISDA
Form Master Agreement with respect to BSFP as the Affected Party or Section
5(b)(iii) with respect to BSFP as the Burdened Party.
5) Documents to he Delivered. For the purpose of Section 4(a) of the ISDA
Form Master Agreement:
(1) Tax forms, documents, or certificates to be delivered are:
Reference Number: FXNEC8048 - Amended
Countrywide Home Loans, Inc.
March 28, 2006
Page 5 of 11
Party required to deliver Form/Document/ Date by which to
document Certificate be delivered
BSFP and Any document required or Promptly after the earlier of (i) reasonable
the Counterparty reasonably requested to demand by either party or (ii) learning
allow the other party to that such form or document is required
make payments under this
Agreement without any
deduction or withholding
for or on the account of
any Tax or with such
deduction or withholding
at a reduced rate
(2) Other documents to be delivered are:
Party required Form/Document/ Date by which to Covered by Section 3(d)
to deliver Certificate be delivered Representation
document
BSFP and Any documents required by the Upon the execution and Yes
the Counterparty receiving party to evidence delivery of this
the authority of the delivering Agreement and such
party or its Credit Support Confirmation
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
Reference Number: FXNEC8048 - Amended
Countrywide Home Loans, Inc.
March 28,2006
Page 6 of 11
Party required Form/Document/ Date by which to Covered by Section 3(d)
to deliver Certificate be delivered Representation
document
may be
BSFP an A certificate of an authorized Upon the execution Yes
the Counterparty officer of the party, as to the and delivery of this
incumbency and authority of the Agreement and such
respective officers of the party Confirmation
signing this Agreement, any
relevant Credit Support Document,
or any Confirmation, as the case
may be
6) Miscellaneous. Miscellaneous
(a) Address for Notices: For the purposes of Section 12(a) of the ISDA Form
Master Agreement:
Address for notices or communications to BSFP:
Address: 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: DPC Manager
Facsimile: (000) 000-0000
with a copy to:
Address: Xxx Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000
Attention: Derivative Operations - 7th Floor
Facsimile: (000) 000-0000
(For all purposes)
Address for notices or communications to the Counterparty:
Address: 0000 Xxxx Xxxxxxx
Xxxx Xxxx XX-000
Xxxxxxxxx, XX 00000
Attention: Xx. Xxxx Xxxxx
Facsimile: 000-000-0000
Reference Number: FXNEC8048 - Amended
Countrywide Home Loans, Inc.
March 28, 2006
Page 7 of 11
Phone: 000-000-0000
(b) Process Agent. For the purpose of Section 13(c) of the ISDA Form Master
Agreement:
BSFP appoints as its
Process Agent: Not Applicable
The Counterparty appoints as its
Process Agent: Not Applicable
(c) Offices. The provisions of Section 10(a) of the ISDA Form Master
Agreement will not apply to this Agreement; neither BSFP nor the
Counterparty have any Offices other than as set forth in the Notices
Section and BSFP agrees that, for purposes of Section 6(b) of the ISDA
Form Master Agreement, it shall not in future have any Office other
than one in the United States.
(d) Multibranch Party. For the purpose of Section 10(c) of the ISDA Form
Master Agreement:
BSFP is not a Multibranch Party.
The Counterparty is not a Multibranch Party.
(e) Calculation Agent The Calculation Agent is BSFP; provided, however,
that if an Event of Default occurs with respect to BSFP, then the
Counterparty shall be entitled to appoint a financial institution
which would qualify as a Reference Market-maker to act as Calculation
Agent.
(f) Credit Support Document. Not applicable for either BSFP or the
Counterparty.
(g) Credit Support Provider.
BSFP: Not Applicable
The Counterparty; Not Applicable
(h) Governing Law, The parties to this Agreement hereby agree that the law of
the State of New York shall govern their rights and duties in whole.
(i) Severability. If any term, provision, covenant, or condition of this
Agreement, or the application thereof to any party or circumstance, shall be
held to be invalid or unenforceable (in whole or in part) for any reason, the
remaining terms, provisions, covenants, and conditions hereof shall continue
in full force and effect as if this Agreement had been executed with the
invalid or unenforceable portion eliminated, so long as this Agreement as so
modified continues to express,
Reference Number: FXNEC8048 - Amended
Countrywide Home Loans, Inc.
March 28, 2006
Page 8 of 11
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.
(1) BSFP will not unreasonably withhold or delay its consent to an
assignment of this Agreement to any other third party.
(m) Set-off. The provisions for Set-off set forth in Section 6(e) of the
ISDA Form Master Agreement shall not apply for purposes of this Transaction.
7) "Affiliate" will have the meaning specified in Section 14 of the ISDA Form
Master Agreement, provided that BSFP shall not be deemed to have any
Affiliates for purposes of this Agreement, including for purposes of Section
6(b)(ii).
8) Section 3 of the ISDA Form Master Agreement is hereby amended by adding at
the end thereof the following subsection (g):
"(g) Relationship Between Parties.
Each party represents to the other party on each date when
it enters into a Transaction that:--
(1) Nonreliance. It is not relying on any statement or
representation of the other party regarding the Transaction (whether written
or oral), other than the representations expressly made in this Agreement or
the Confirmation in respect of that Transaction.
(2) Evaluation and Understanding.
(i) It has the capacity to evaluate (internally or through
independent professional advice) the Transaction and has made its own decision
to enter into the Transaction; and
Reference Number: FXNEC8048 - Amended
Countrywide Home Loans, Inc.
March 28, 2006
Page 9 of 11
(ii) It understands the terms, conditions and risks of the
Transaction and is willing and able to accept those terms and conditions and
to assume those risks, financially and otherwise.
(3) Purpose. It is entering into the Transaction for the purposes
of managing its borrowings or investments, hedging its underlying assets or
liabilities or in connection with a line of business.
(4) Principal. It is entering into the Transaction as principal,
and not as agent or in any other capacity, fiduciary or otherwise."
NEITHER THE BEAR XXXXXXX COMPANIES INC. NOR ANY SUBSIDIARY OR AFFILIATE
OF THE BEAR XXXXXXX COMPANIES INC. OTHER THAN BSFP IS AN OBLIGOR OR A
CREDIT SUPPORT PROVIDER ON THIS AGREEMENT.
5. Account Details and
Settlement Information: Payments to BSFP:
Citibank, N.A., New York
ABA Number: 000-0000-00, for the account of
Bear, Xxxxxxx Securities Corp.
Account Number: 0925-3186, for further credit to
Bear Xxxxxxx Financial Products Inc.
Sub-account Number: 102-04654-1-3
Attention: Derivatives Department
Payments to Counterparty:
Please provide
This Agreement may be executed in several counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.
Counterparty hereby agrees to check this Confirmation and to confirm that the
foregoing correctly sets forth the terms of the Transaction by signing in the
space provided below and returning to BSFP a facsimile of the fully-executed
Confirmation to 000-000-0000. For inquiries regarding U.S. Transactions,
please contact 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.
Reference Number: FXNEC8048 - Amended
Countrywide Home Loans, Inc.
March 28, 2006
Page 10 of 11
We are very pleased to have executed this Transaction with you and we look
forward to completing other transactions with you in the near future.
Very truly yours,
BEAR XXXXXXX FINANCIAL PRODUCTS INC.
/s/
By:--------------------------------------
Name:
Title: AUTHORIZE SlGNATURE
Counterparty, acting through its duly authorized signatory, hereby agrees to,
accepts and confirms the terms of the foregoing as of the Trade Date.
COUNTRYWIDE HOME LOANS, INC.
/s/ Xxxxxxxx Xxxxxx Xxxxxxxx
By:--------------------------------------
As authorized agent or officer for Countrywide Home Loans, Inc.
Name:
Title: XXXXXXXX XXXXXX XXXXXXXX
SENIOR MANAGING DIRECTOR AND TREASURER
cr
Reference Number: FXNEC8048 - Amended
Countrywide Home Loans, Inc.
March 28, 2006
Page 11 of 11
SCHEDULE OF NOTIONAL AMOUNTS AND CAP RATES
(all such dates subject to adjustment in accordance with the
Business Day Convention)
From and including To but excluding Notional Amount Cap Rate
------------------ ---------------- --------------- --------
(USD)
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Effective Date 25-Apr-2006 301,000,000.00 7.88916%
25-Apr-2006 25-May-2006 284,752,916.00 6.83638%
25-May-2006 25-Jun-2006 267,239,785.00 6.61497%
25-Jun-2006 25-Jul-2006 248,517,301.00 6.83452%
25-Jul-2006 25-Aug-2006 228,648,621.00 6.61312%
25-Aug-2006 25-Sep-2006 207,703,270.00 6.61215%
25-Sep-2006 25-Oct-2006 184,879,890.00 6.82798%
25-Oct-2006 25-Nov-2006 161,141,396.00 6.60123%
25-Nov-2006 25-Dec-2006 136,628,653.00 6.81613%
25-Dec-2006 25-Jan-2007 111,473,729.00 6.58560%
25-Jan-2007 25-Feb-2007 85,993,940.00 6.57444%
25-Feb-2007 25-Mar-2007 61,286,533.00 7.28035%
25-Mar-2007 25-Apr-2007 37,464,786.00 6.51681%
25-Apr-2007 Termination Date 14,545,235.00 6.59741%
EXHIBIT II
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/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
CWMBS, INC.
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
CWALT, INC.
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
CWHEQ, INC.
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
COUNTRYWIDE HOME LOANS, INC.
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
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BEAR XXXXXXX FINANCIAL PRODUCTS INC.
By: /s/ F. Xxxxx Xxxxxx
--------------------------------
Name: F. Xxxxx Xxxxxx
Title: DPC Manager
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