ASSIGNMENT AGREEMENT
EXHIBIT
99.5
ASSIGNMENT
AGREEMENT, dated as of August 13, 2007 (“Assignment Agreement”), among
COUNTRYWIDE HOME LOANS, INC. (“Assignor”), THE BANK OF NEW YORK (“Assignee”),
not in its individual or corporate capacity but solely as Swap Contract
Administrator for CWABS Asset-Backed Certificates Trust 2007-12, pursuant to
a
Swap Contract Administration Agreement (the “Swap Contract Administration
Agreement”) dated as of August 13, 2007, and XXXXXX BROTHERS SPECIAL FINANCING
INC. (“Remaining Party”).
WITNESSETH:
WHEREAS,
effective as of August 13, 2007, 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 August 13, 2007, whose XXXXXX BROTHERS SPECIAL FINANCING
INC. reference number is Global Deal ID: 3276538 (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, and as part of, the ISDA Master Agreement dated as of June
6,
1996, as amended or supplemented from time to time (the “Old Master Agreement”),
between Assignor and Remaining Party;
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 August 13, 2007 (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 Additional Payment 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 not in its individual or corporate capacity, but solely in its
capacity as Swap Contract Administrator under the Swap Contract Administration
Agreement; (b) in no case shall BNY (or any person acting as successor Swap
Contract Administrator under the Swap 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; and (c) recourse against BNY shall be limited to the
assets available under the Swap Contract Administration Agreement or the Pooling
and Servicing Agreement for CWABS Asset-Backed Certificates Trust 2007-12 dated
as of August 1, 2007 among CWABS, Inc. as depositor, Park Monaco Inc., as a
seller, Park Sienna LLC, as a seller, Countrywide Home Loans, Inc. as a seller,
Countrywide Home Loans Servicing LP, as master servicer and BNY, as trustee
(the
“Pooling and Servicing Agreement”).
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 Master Agreement dated as of August
13, 2007, as amended or supplemented from time to time (the “New Master
Agreement”), between Assignee and Remaining Party. The Confirmation
shall form a part of, and be subject to, the New Master Agreement.
6. Representations. Each
party hereby represents and warrants to the other parties as
follows:
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(a)
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It
is duly organized, validly existing and in good standing under the
laws of
its jurisdiction of organization or
incorporation;
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(b)
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It
has the power to execute and deliver this Assignment Agreement;
and
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(c)
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Its
obligations under this Assignment Agreement constitute its legal,
valid
and binding obligations, enforceable in accordance with their respective
terms.
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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 the New Master 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.
7. Indemnity. Assignor
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. Assignee (subject to the limitations set forth in paragraph 3
above) hereby agrees to
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indemnify
and hold harmless Assignor with respect to any and all claims arising under
the
Assigned Transaction on or after the Effective Date.
8. Governing
Law. This Assignment Agreement shall be governed by and construed
in accordance with the laws of the State of New York without reference to the
conflict of laws provisions thereof (except Section 5-1401 and 5-1402 of the
New
York General Obligations Law).
9. Notices. For
the purposes of this Assignment Agreement and Section 12(a) of the Old Master
Agreement and New Master Agreement, as applicable, 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: Xxxxxx Xxxxx, with a copy to the same address,
Attention: Legal Department, or such other address as may be
hereafter furnished in writing to Assignee and Remaining Party; (ii) in the
case
of Assignee, The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Corporate Trust MBS Administration, CWABS, Inc.
Series 2007-12 or such other address as may be hereafter furnished in writing
to
Assignor and Remaining Party; and (iii) in the case of Remaining
Party,
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Address:
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Xxxxxx
Brothers Special Financing Inc.
c/x
Xxxxxx Brothers Inc.
Transaction
Management Group
Corporate
Advisory Division
000
Xxxxxxx Xxxxxx
Xxx
Xxxx, XX 00000
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Attention:
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Documentation
Manager
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Tel
No.
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(000)
000-0000
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Fax
No.
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(000)
000-0000
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or
such
other address as may be hereafter furnished in writing to Assignor and
Assignee.
10. 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 542239
Attn: Xxxxxxx
Xxxxxx 000-000-0000
Fax: 000-000-0000
11. Optional
Termination.
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(a)
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Upon
the occurrence of an Optional Termination pursuant to Section 9.01
of the
Pooling and Servicing Agreement, the definition of Notional Amount in the
Confirmation shall be deleted in its entirety and replaced with the
following:
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“With
respect to each Calculation Period the amount set forth for such
period in
Appendix A attached hereto multiplied by a factor. The factor will
be set
at the time of the Optional Termination to be the quotient of (i)
the
Notional Amount immediately prior to the Optional Termination (which
for
avoidance of doubt was the lesser of (a) the amount set forth for
such
period in Appendix A attached hereto) and (b) the aggregate Principal
Balance of the Referenced Assets immediately prior to the Optional
Termination) divided by (ii) the corresponding amount set forth for
such
period in Appendix A.”
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(b)
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Upon
the occurrence of an Optional Termination pursuant to Section 9.01
of the
Pooling and Servicing Agreement, BNY, as Swap Contract Administrator
for
CWABS Asset-Backed Certificates Trust 2007-12 (the “Swap Contract
Administrator”), pursuant to a Swap Contract Administration Agreement,
hereby assigns all of its rights and delegates all of its duties
and
obligations to Countrywide Home Loans, Inc., and Countrywide Home
Loans,
Inc. hereby assumes all of the Swap Contract Administrator’s rights,
duties, and obligations, under the Assigned Transaction and the
Confirmation arising on or after the date on which the Trust Fund
(as
defined in the Pooling and Servicing Agreement) is terminated pursuant
to
the terms thereof.
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(c)
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Effective
as of and from the date on which the Trust Fund is terminated pursuant
to
the terms thereof, Remaining Party and the Swap Contract Administrator
hereby release one another from all duties and obligations owed under
and
in respect of the Assigned Transaction and the Confirmation, and
the Swap
Contract Administrator hereby terminates its rights under and in
respect
of the Assigned Transaction. Remaining Party hereby consents to
the assignment and delegation by the Swap Contract Administrator
to
Countrywide Home Loans, Inc. of all the rights, duties, and obligations
of
the Swap Contract Administrator under the Assigned Transaction pursuant
to
this Assignment Agreement.
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(d)
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Effective
as of and from the date on which the Trust Fund is terminated pursuant
to
the terms thereof, Remaining Party hereby agrees that Countrywide
Home
Loans, Inc. may do one of the following with the Swap Contract
Administrator’s rights, duties, and obligations, under the Assigned
Transaction and the Confirmation arising on or about the date on
which the
Trust Fund is terminated pursuant to the terms
thereof:
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(i) retain
such rights, duties, and obligations;
(ii) assign
all of its rights and delegates all of its duties and obligations to a third
party effective upon the receipt of written consent from Remaining Party to
such
assignment; or
(iii) terminate
the Assigned Transaction by giving three Business Days’ prior notice to
Remaining Party (the “Optional Termination Date”). On the Optional
Termination Date, if any, a termination payment (if any) shall be payable by
the
applicable party as determined by the Calculation Agent by the application
of
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Section
6(e)(ii) of the Old Master Agreement, with Market Quotation and Second Method
being the applicable method for determining the termination
payment. The exercise of the right to terminate under this provision,
shall not be an Event of Default under any of the other Transactions that are
part of the Old Master Agreement. For purposes of the Optional
Termination Date, Countrywide Home Loans, Inc. shall be the sole Affected
Party.
12. Counterparts. This
Assignment Agreement may be executed and delivered in counterparts (including
by
facsimile transmission), each of which when executed shall be deemed to be
an
original but all of which taken together shall constitute one and the same
instrument.
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IN
WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement
as
of the date first above written.
| COUNTRYWIDE HOME LOANS, INC. | |||
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By:
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/s/ Xxxxxxxxx Xxxx | |
| Name: Xxxxxxxxx Xxxx | |||
| Title: Senior Vice President | |||
| THE
BANK OF NEW YORK, NOT IN ITS
INDIVIDUAL OR CORPORATE CAPACITY BUT SOLELY AS SWAP CONTRACT ADMINISTRATOR FOR CWABS ASSET- BACKED CERTIFICATES TRUST 2007-12 |
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By:
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/s/ Xxxxxxx Xxxxxxxx | |
| Name: Xxxxxxx Xxxxxxxx | |||
| Title: Assistant Treasurer | |||
| XXXXXX BROTHERS SPECIAL FINANCING INC. | |||
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By:
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/s/ Xxxxxxx Xxxxxx | |
| Name: Xxxxxxx Xxxxxx | |||
| Title: Vice President | |||
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EXHIBIT
A
SWAP
CONTRACT
[Filed
as
Exhibit 99.1 herein]
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