ASSIGNMENT AGREEMENT
EXHIBIT
99.4
ASSIGNMENT
AGREEMENT, dated as of June 29, 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 2007-10, pursuant to a Swap Contract
Administration Agreement (the “Swap Contract Administration Agreement”) dated as
of June 29, 2007, and BEAR XXXXXXX FINANCIAL PRODUCTS INC. (“Remaining
Party”).
W
I T
N E S S E T H:
WHEREAS,
effective as of June 29, 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 June 21, 2007, whose BEAR XXXXXXX FINANCIAL PRODUCTS INC.
reference number is FXCWL0710 (the “Confirmation”), a copy of which is attached
hereto as Exhibit I;
WHEREAS,
the Confirmation supplements, forms a part of, and is subject to, an agreement
in the form of the 1992 Multicurrency – Cross-Border Master Agreement published
by the International Swaps and Derivatives Association, Inc. (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 June 29, 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 Upfront Amount in
accordance with the terms of the Assigned Transaction and the
Confirmation.
3. Limitation
on Liability. Assignor and Remaining Party agree to the
following: (a) The Bank of New York (“BNY”) is entering into this Assignment
Agreement 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 2007-10 dated
as of June 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, BNY, as trustee, and
The Bank of New York Trust Company, N.A., as co-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. Following the assignment of the Assigned Transaction
pursuant to the terms hereof, 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. 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;
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(c)
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Such
execution, delivery and performance do not violate or conflict with
any
law applicable to it, any provision of its constitutional documents,
any
order or judgment of any court or other agency of government applicable
to
it or any of its assets or any contractual restriction binding on
or
affecting it or any of its assets;
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(d)
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All
governmental and other consents that are required to have been obtained
by
it with respect to this Assignment Agreement have been obtained and
are in
full force and effect and all conditions of any such consents have
been
complied with; and
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(e)
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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 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.
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 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 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: 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, Series 2007-10
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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000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
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Attention:
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DPC
Manager – 36th
Floor
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Telex
No.
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000-000-0000
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copy
to:
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Xxx
Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxx
Xxxx 00000
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Attention:
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Derivative
Operations – 7th
Floor
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Telex
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
3
For
Further Credit: TAS A/C 542029
Attn:
Xxxxxxx Xxxxxx 000-000-0000
Fax: 000-000-0000
11. Optional
Termination. In connection with the optional termination of the
trust fund pursuant to Section 9.01 of the Pooling and Servicing Agreement,
with
effect following all distributions on the final Distribution Date under the
Pooling and Servicing Agreement (such date, the “Optional Termination
Distribution Date”):
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(a)
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(1)
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(A)
Assignee hereby assigns all of its rights and delegates all of its
liabilities and obligations to Countrywide Home Loans, Inc., (for
purposes
of this Section 11 “CHL”) and CHL hereby assumes all of Assignee’s rights,
liabilities, and obligations, under the Assigned Transaction and
the
Confirmation arising after the final distributions on the Optional
Termination Distribution Date (such transaction and confirmation,
collectively, the “New Assigned Transaction”) and (B) Remaining Party
hereby consents to such assignment, delegation and
assumption;
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(2) Remaining
Party and CHL agree to enter into the New Assigned Transaction as evidenced
by a
confirmation (the “New Confirmation”) such New Confirmation evidencing a
complete and binding agreement between Remaining Party and CHL and such New
Confirmation will constitute a Confirmation (as that word is defined in the
New
Agreement, defined below) that supplements, forms a part of, and is subject
to,
an agreement (the "New Agreement") in the form of the 1992 Multicurrency – Cross
Border Master Agreement in the form published by the International Swaps and
Derivatives Association, Inc. (the "ISDA Form"), as if on the date Remaining
Party and CHL enter into the New Assigned Transaction Remaining Party and CHL
had executed an agreement in such form, but without any Schedule (as that word
is defined in the New Agreement) except for the elections made
therein. Remaining Party and CHL further agree that such New
Confirmation shall have substantially identical terms to the Assigned
Transaction and Confirmation.
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(b)
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Remaining
Party and Assignee are each released and discharged from further
obligations owed under and in respect of the Assigned Transaction
and
their respective rights against each other thereunder are
cancelled;
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(c)
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Remaining
Party and CHL hereby agree that the Confirmation shall be amended
as
follows:
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(1) Section
3 of the Confirmation shall be deleted in its entirety.
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(d)
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Remaining
Party hereby agrees that CHL may do one of the following with the
New
Assigned Transaction and the New
Confirmation:
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(i) retain
such New Assigned Transaction and New Confirmation;
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(ii) assign
all of its rights and delegate all of its liabilities and obligations under
the
New Assigned Transaction and the New Confirmation to a third party, such
assignment and delegation to be effective upon the receipt of written consent
thereto from Remaining Party (in its sole and absolute discretion);
or
(iii) terminate
the New Assigned Transaction by giving three Business Days’ prior written notice
to Remaining Party (the “Optional Swap Termination”). In connection
with the Optional Swap Termination, if any, a termination payment (if any)
shall
be payable by CHL or Remaining Party, as applicable, as determined by the
Calculation Agent by the application of Section 6(e)(ii) of the ISDA Form 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 between CHL and Bear Xxxxxxx Financial Products
Inc. For purposes of the Optional Swap Termination, CHL shall be the
sole Affected Party.
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(e)
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If
CHL exercises its right to retain the New Assigned Transaction and
New
Confirmation pursuant to Section 11(d)(i) of this Assignment Agreement,
then Remaining Party has the right to do one of the following with
the New
Assigned Transaction and the New
Confirmation:
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(i) retain
such New Assigned Transaction and New Confirmation;
(ii) assign
all of its rights and delegate all of its liabilities and obligations under
the
New Assigned Transaction to a subsidiary of The Bear Xxxxxxx Companies, Inc.
without the consent of CHL; or
(iii) assign
all of its rights and delegate all of its liabilities and obligations under
the
New Assigned Transaction to a third party with the consent of CHL;
provided,
however, that if Remaining Party exercises its right to assign the Assigned
Transaction under (ii) or (iii) above the assignee shall be an entity that
(1)
has executed an ISDA Master Agreement with CHL, (2) has executed an
Item 1115 Regulation AB Agreement with CHL and (3) agrees to accept all of
the
terms and conditions of the Assigned Transaction and New Confirmation without
amendment or supplement.
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
xxxxxxxxxx.XX WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement as of the date first above written.
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COUNTRYWIDE
HOME LOANS, INC.
By:
/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
2007-10
By:
/s/ Xxxxxxxx Xxxxxx
Name:
Xxxxxxxx Xxxxxx
Title:
Vice President
BEAR
XXXXXXX FINANCIAL PRODUCTS INC.
By:
/s/ Xxxxx Xxxxxxxx
Name:
Xxxxx Xxxxxxxx
Title:
Authorized Signatory
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EXHIBIT
I
SWAP
CONTRACT
[Filed
herein as Exhibit 99.2]
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