CORRIDOR CONTRACT ADMINISTRATION AGREEMENT
EXHIBIT
99.12
This
CORRIDOR CONTRACT ADMINISTRATION AGREEMENT, dated as of March 30, 2007 (this
“Agreement”), among THE BANK OF NEW YORK (“BNY”), as Corridor
Contract Administrator (in such capacity, the “Corridor Contract
Administrator”) and not in its individual or corporate capacity but solely
as Trustee under the Pooling and Servicing Agreement referred to below (in
such
capacity, the “Trustee”), and COUNTRYWIDE HOME LOANS, INC.
(“CHL”).
WHEREAS,
CHL is a party to three interest rate corridor agreements between CHL and
Deutsche Bank AG, New York Branch (the “Counterparty”), with a Trade Date
of March 23, 2007 and reference numbers of N590861N/N590862N, N590854N/N590855N
and N590857N/N590858N (each, a “Corridor Contract” and collectively, the
“Corridor Contracts”), copies of which are attached to this Agreement at
Exhibit A;
WHEREAS,
CHL is conveying certain mortgage loans and other related assets to a trust
fund
(the “Trust Fund”) created pursuant to a Pooling and Servicing Agreement,
dated as of March 1, 2007 (the “Pooling and Servicing Agreement”), among
CWABS, Inc., as depositor, CHL, as a seller, Park Monaco Inc., as a seller,
Park
Sienna LLC, as a seller, Countrywide Home Loans Servicing LP, as master servicer
(the “Master Servicer”), the Trustee, and The Bank of New York Trust
Company, N.A., as co-trustee, with respect to CWABS Asset-Backed Certificates
Trust 2007-5;
WHEREAS,
simultaneously with the execution and delivery of this Agreement, CHL is
assigning all of its rights, and delegating all of its duties and obligations
(other than its obligation to pay the Fixed Amount and any fees, if applicable
(as defined in each Corridor Contract)), under each Corridor Contract to the
Corridor Contract Administrator, pursuant to the Assignment Agreement, dated
as
of the date hereof (the “Assignment Agreement”), among CHL, as assignor,
the Corridor Contract Administrator, as assignee, and the
Counterparty;
WHEREAS,
CHL desires that the Net Payments (as defined below) on each Corridor
Contract be distributed to the Trustee on behalf of the Trust Fund to be applied
for the purposes specified in the Pooling and Servicing Agreement and that
the
Excess Payments (as defined below) on each Corridor Contract be distributed
to
CHL;
WHEREAS,
CHL and the Trustee desire to appoint the Corridor Contract Administrator,
and
the Corridor Contract Administrator desires to accept such appointment, to
distribute funds received under each Corridor Contract to the Trustee and to
CHL
as provided in this Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants contained in this Agreement,
and for other good and valuable consideration, the receipt and adequacy of
which
are hereby acknowledged, the parties agree as follows:
1. Definitions. Capitalized
terms used but not otherwise defined in this Agreement shall have the respective
meanings assigned thereto in the Pooling and Servicing Agreement.
Benefited
Certificates: With respect to (i) the Class 1-A Corridor
Contract, the Class 1-A Certificates, (ii) the Class 2-A Corridor Contract,
the
Class 2-A Certificates and (iii) the Subordinate Corridor Contract, the
Subordinate Certificates.
Calculation
Period: With respect to any Corridor Contract and any payment
made under or in respect of such Corridor Contract, the related “Calculation
Period” as defined in such Corridor Contract.
Controlling
Party: As defined in Section 5.
Corridor
Contract Account: The separate account created and maintained by
the Corridor Contract Administrator pursuant to Section 3 with a depository
institution in the name of the Corridor Contract Administrator for the benefit
of CHL and the Trustee on behalf of the Holders of the Benefited Certificates
and designated “The Bank of New York for Countrywide Home Loans, Inc. and
certain registered Holders of CWABS, Inc., Asset-Backed Certificates, Series
2007-5”. Funds in the Corridor Contract Account shall be held for CHL
and the Trustee on behalf of the Holders of the Benefited Certificates as set
forth in this Agreement.
Day
Count Fraction: With respect to any Corridor Contract and any
Distribution Date, the “Floating Rate Day Count Fraction” specified for the
Calculation Period related to such Distribution Date in such Corridor
Contract.
Excess
Payment: For any Distribution Date, (a) with respect to any
payment received by the Corridor Contract Administrator from the Counterparty
in
respect of any Corridor Contract for such Distribution Date (other
than any payment in respect of an early termination of such Corridor Contract),
an amount equal to the excess, if any, of such payment over the Net Payment
for
such Distribution Date and (b) with respect to any payment received by the
Corridor Contract Administrator from the Counterparty in respect of an early
termination of any Corridor Contract received during the period from and
including the immediately preceding Distribution Date to and excluding the
day
immediately preceding the current Distribution Date, an amount equal to the
excess, if any, of such payment over the Net Payment in respect of such
payment. Notwithstanding the foregoing, in the event that the
aggregate Certificate Principal Balance of the Benefited Certificates is reduced
to zero prior to the termination of such Corridor Contract, the Excess Payment
for any Distribution Date following the Distribution Date on which the aggregate
Certificate Principal Balance of Benefited Certificates is reduced to zero
shall
be the entire payment received from the Counterparty.
LIBOR: With
respect to any Corridor Contract, the “Floating Rate Option” as defined in such
Corridor Contract.
Net
Payment: For any Distribution Date, (a) with respect to any
payment received by the Corridor Contract Administrator from the Counterparty
in
respect of any Corridor Contract for such Distribution Date (other than any
payment in respect of an early termination of such Corridor Contract), an amount
equal to the product of (i) the excess, if any, of (x) LIBOR over (y) the
related Strike Rate, (ii) the lesser of (x) the related Notional Balance for
such Distribution Date and (y) the aggregate Certificate Principal Balance
of
the Benefited Certificates immediately prior to such Distribution Date and
(iii)
the Day Count Fraction, and (b) with respect to any payment received by the
Corridor Contract Administrator from the Counterparty in respect of an early
termination of such Corridor Contract received during the period from and
including the immediately preceding Distribution Date to and excluding the
day
immediately preceding the current Distribution Date, an amount equal to the
product of (i) a fraction, the numerator of which is equal to the lesser of
(x)
the related Notional Balance for the first Distribution Date on or after the
early termination of such Corridor Contract and (y) the aggregate Certificate
Principal Balance of the Benefited Certificates immediately prior to the first
Distribution Date on or after the early termination of such Corridor Contract,
and the denominator of which is equal to the related Notional Balance for the
first Distribution Date on or after the early termination of such Corridor
Contract and (ii) the amount of such payment received in respect of such early
termination. Notwithstanding the foregoing, in the event that the
Benefited Certificates are retired prior to the termination of such Corridor
Contract, the Net Payment for any Distribution Date following the Distribution
Date on which such Benefited Certificates are retired shall be $0.
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Notional
Balance: With respect to any Corridor Contract and any
Distribution Date, the “Notional Amount” specified for the Calculation Period
related to such Distribution Date in such Corridor Contract.
Responsible
Officer: When used with respect to the Corridor Contract
Administrator, any Vice President, any Assistant Vice President, the Secretary,
any Assistant Secretary, any Trust Officer or any other officer of the Corridor
Contract Administrator customarily performing functions similar to those
performed by any of the above designated officers and also to whom, with respect
to a particular matter, such matter is referred because of such officer’s
knowledge of and familiarity with the particular subject.
Strike
Rate: With respect to any Corridor Contract and any Distribution
Date, “Cap Rate” specified for the Calculation Period related to such
Distribution Date in such Corridor Contract.
2. Appointment
of Corridor Contract Administrator.
CHL
and
the Trustee hereby appoint BNY to serve as Corridor Contract Administrator
pursuant to this Agreement. The Corridor Contract Administrator
accepts such appointment and acknowledges the transfer and assignment to it
of
CHL’s rights under each Corridor Contract pursuant to the Assignment
Agreement. The Corridor Contract Administrator agrees
to exercise the rights referred to above for the benefit of CHL and
the Trustee on behalf of the Trust Fund and to perform the duties set forth
in
this Agreement.
3. Receipt
of Funds; Corridor Contract Account.
The
Corridor Contract Administrator hereby agrees to receive, on behalf of CHL
and
the Trustee on behalf of the Trust Fund, all amounts paid by the Counterparty
under each Corridor Contract. The Corridor Contract Administrator
shall establish and maintain a Corridor Contract Account into which the Corridor
Contract Administrator shall deposit or cause to be deposited on the Business
Day of receipt, all amounts payable by the Counterparty under each Corridor
Contract. All funds deposited in the Corridor Contract Account shall
be held for the benefit of CHL and the Trustee on behalf of the Holders of
the
Benefited Certificates until withdrawn in accordance with this Section
3. The Corridor Contract Account shall be an “Eligible Account” as
defined in the Pooling and Servicing Agreement and, if the Trust Fund is
terminated pursuant to the Pooling and Servicing Agreement prior to the
termination of this Agreement, the Corridor Contract Account shall be an account
that would otherwise qualify as an “Eligible Account” under the Pooling and
Servicing Agreement had the termination of the Trust Fund not
occurred.
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Funds
in
the Corridor Contract Account shall remain uninvested.
The
Corridor Contract Administrator shall give at least 30 days’ advance notice to
CHL and the Trustee of any proposed change of location of the Corridor Contract
Account prior to any change thereof.
4. Calculations;
Distribution of Payments; Delivery of Notices.
The
Corridor Contract Administrator hereby agrees to perform the calculations
necessary to distribute payments in accordance with this Section
4. The Corridor Contract Administrator shall perform such
calculations based on (x) the Certificate Principal Balances of the Benefited
Certificates provided by the Trustee pursuant to the Pooling and Servicing
Agreement and (y) the Notional Balances, Day Count Fractions and values of
LIBOR
provided by the Counterparty pursuant to each Corridor Contract. The
Corridor Contract Administrator shall, absent manifest error, be entitled to
rely on information provided by the Trustee and the Counterparty.
On
the
Business Day of receipt of any payment from the Counterparty, the Corridor
Contract Administrator shall withdraw the amount of such payment from the
Corridor Contract Account and distribute such amounts sequentially, as
follows:
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(a)
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first,
to the Trustee for deposit into the Carryover Reserve Fund, the applicable
Net Payment; and
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(b)
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second,
to CHL, the applicable Excess Payment, in accordance with the following
wiring instructions:
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Bank:
Bank of New York
Account
Name:
Countrywide Home Loans
Account
No:
8900038632
ABA
No:
021000018
REF:
CWABS 2007-5
The
Corridor Contract Administrator shall prepare and deliver any notices required
to be delivered under any Corridor Contract.
5. Control
Rights.
The
Controlling Party shall have the right to direct the Corridor Contract
Administrator with respect to the exercise of any right under any Corridor
Contract (such as the right to designate an Early Termination Date following
an
Event of Default (each such term as defined in the applicable Corridor
Contract)). For purposes of this Agreement, the “Controlling
Party” shall mean (i) if the aggregate Certificate Principal Balance of the
Benefited Certificates immediately prior to the most recent Distribution Date
(or, prior to the first Distribution Date, the original aggregate Certificate
Principal Balance) is equal to or greater than 50% of the Notional Balance
of
such Corridor Contract as of such Distribution Date (or, prior to the first
Distribution Date, the original Notional Balance of such Corridor Contract),
the
Trustee, and (ii) if the aggregate Certificate Principal Balance of the
Benefited Certificates immediately prior to the most recent Distribution Date
(or, prior to the first Distribution Date, the original aggregate Certificate
Principal Balance) is less than 50% of the Notional Balance of such Corridor
Contract as of such Distribution Date (or, prior to the first Distribution
Date,
the original Notional Balance of such Corridor Contract), CHL.
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6. Monitoring
of Significance Percentage. With respect to each Distribution
Date, the Corridor Contract Administrator shall calculate the “significance
percentage” (as defined in Item 1115 of Subpart 229.1100 – Asset Backed
Securities (Regulation AB), 17 C.F.R. §§ 229.1100-229.1123) of each Corridor
Contract based on the Certificate Principal Balance of the Benefited
Certificates for such Distribution Date (after all distributions to be made
thereon on such Distribution Date) and based on the methodology provided in
writing by or on behalf of CHL no later than the fifth Business Day preceding
such Distribution Date. On each Distribution Date, the Corridor
Contract Administrator shall provide to CHL a written report (which written
report may include similar information with respect to other derivative
instruments relating to securitization transactions sponsored by CHL) specifying
the “significance percentage” of each Contract for that Distribution
Date. If the “significance percentage” of each Corridor Contract
exceeds 7.0% with respect to any Distribution Date, the Corridor Contract
Administrator shall make a separate notation thereof in the written report
described in the preceding sentence. Such written report may contain
such assumptions and disclaimers as are deemed necessary and appropriate by
the
Corridor Contract Administrator.
7. Representations
and Warranties of the Corridor Contract Administrator. The
Corridor Contract Administrator represents and warrants as follows:
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(a)
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BNY
is duly organized and validly existing as a banking corporation under
the
laws of the State of New York and has all requisite power and authority
to
execute and deliver this Agreement and to perform its obligations
as
Corridor Contract Administrator under this
Agreement.
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(b)
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The
execution, delivery and performance of this Agreement by BNY as Corridor
Contract Administrator has been duly authorized by
BNY.
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(c)
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This
Agreement has been duly executed and delivered by BNY as Corridor
Contract
Administrator and is enforceable against BNY in accordance with its
terms,
except as enforceability may be affected by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws
relating to or affecting creditors’ rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law).
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8. Certain
Matters Concerning the Corridor Contract Administrator.
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(a)
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The
Corridor Contract Administrator shall undertake to perform such duties
and
only such duties as are specifically set forth in this
Agreement.
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(b)
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No
provision of this Agreement shall be construed to relieve the Corridor
Contract Administrator from liability for its own grossly negligent
action, its own grossly negligent failure to act or its own willful
misconduct, its grossly negligent failure to perform its obligations
in
compliance with this Agreement, or any liability that would be imposed
by
reason of its willful misfeasance or bad faith; provided
that:
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(i)
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the
duties and obligations of the Corridor Contract Administrator shall
be
determined solely by the express provisions of this Agreement, the
Corridor Contract Administrator shall not be liable, individually
or as
Corridor Contract Administrator, except for the performance of such
duties
and obligations as are specifically set forth in this Agreement,
no
implied covenants or obligations shall be read into this Agreement
against
the Corridor Contract Administrator and the Corridor Contract
Administrator may conclusively rely, as to the truth of the statements
and
the correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Corridor Contract Administrator and
conforming to the requirements of this Agreement that it reasonably
believed in good faith to be genuine and to have been duly executed
by the
proper authorities respecting any matters arising
hereunder;
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(ii)
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the
Corridor Contract Administrator shall not be liable, individually
or as
Corridor Contract Administrator, for an error of judgment made in
good
faith by a Responsible Officer or Responsible Officers of the Corridor
Contract Administrator, unless the Corridor Contract Administrator
was
grossly negligent or acted in bad faith or with willful misfeasance;
and
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(iii)
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the
Corridor Contract Administrator shall not be liable, individually
or as
Corridor Contract Administrator, with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance
with the
direction of the Controlling Party, or exercising any power conferred
upon
the Corridor Contract Administrator under this
Agreement.
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(c)
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Except
as otherwise provided in Sections 8(a) and
8(b):
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(i)
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the
Corridor Contract Administrator may request and rely upon and shall
be
protected in acting or refraining from acting upon any resolution,
officer’s certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order,
appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or
parties;
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(ii)
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the
Corridor Contract Administrator may consult with counsel and any
opinion
of counsel shall be full and complete authorization and protection
in
respect of any action taken or suffered or omitted by it hereunder
in good
faith and in accordance with such opinion of
counsel;
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(iii)
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the
Corridor Contract Administrator shall not be liable, individually
or as
Corridor Contract Administrator, for any action taken, suffered or
omitted
by it in good faith and believed by it to be authorized or within
the
discretion or rights or powers conferred upon it by this
Agreement;
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(iv)
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the
Corridor Contract Administrator shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless
requested in writing so to do by CHL or the Trustee; provided, however,
that if the payment within a reasonable time to the Corridor Contract
Administrator of the costs, expenses or liabilities likely to be
incurred
by it in the making of such investigation is, in the opinion of the
Corridor Contract Administrator not reasonably assured to the Corridor
Contract Administrator by CHL and/or the Trustee, the Corridor Contract
Administrator may require reasonable indemnity against such expense,
or
liability from CHL and/or the Trustee, as the case may be, as a condition
to taking any such action;
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(v)
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the
Corridor Contract Administrator shall not be required to expend its
own
funds or otherwise incur any financial liability in the performance
of any
of its duties hereunder if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such liability
is not assured to it; and
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(vi)
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the
Corridor Contract Administrator shall not be liable, individually
or as
Corridor Contract Administrator, with respect to or in connection
with
errors or omissions contained in the report to be provided pursuant
to
Section 6 hereof, to the extent such errors or omissions are the
result of
inaccuracies in the methodology or other information provided to
the
Corridor Contract Administrator by
CHL.
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(d)
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CHL
covenants and agrees to pay or reimburse the Corridor Contract
Administrator, upon its request, for all reasonable expenses and
disbursements incurred or made by the Corridor Contract Administrator
in
accordance with any of the provisions of this Agreement except any
such
expense or disbursement as may arise from its negligence, bad faith
or
willful misconduct. The Corridor Contract Administrator and any
director, officer, employee or agent of the Corridor Contract
Administrator shall be indemnified by CHL and held harmless against
any
loss, liability or expense incurred in connection with any legal
action
relating to this Agreement, the Corridor Contracts and the Assignment
Agreement, or in connection with the performance of any of the Corridor
Contract Administrator’s duties hereunder, other than any loss, liability
or expense incurred by reason of willful misfeasance, bad faith or
negligence in the performance of any of the Corridor Contract
Administrator’s duties hereunder or thereunder. Such indemnity
shall survive the termination of this Agreement or the resignation
of the
Corridor Contract Administrator hereunder or
thereunder. Notwithstanding anything to the contrary in this
Section 8(d), any expenses, disbursements, losses or liabilities
of the
Corridor Contract Administrator or any director, officer, employee
or
agent thereof that are made or incurred as a result of any request,
order
or direction of any NIM Insurer or any of the Certificateholders
made to
the Trustee as contemplated by Section 8.02(a)(9) of the Pooling
and
Servicing Agreement and consequently made to the Corridor Contract
Administrator by the Trustee shall be payable by the Trustee out
of the
security or indemnity provided by any NIM Insurer or such
Certificateholders pursuant to Section 8.02(a)(9) of the Pooling
and
Servicing Agreement.
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(e)
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Upon
the resignation of BNY as Trustee in accordance with the Pooling
and
Servicing Agreement, (i) BNY shall resign and be discharged from
its
duties as Corridor Contract Administrator hereunder and (ii) the
Person
that succeeds BNY as Trustee shall be appointed as successor Corridor
Contract Administrator hereunder upon its execution, acknowledgement
and
delivery of the instrument accepting such appointment in accordance
with
Section 8.08 of the Pooling and Servicing Agreement, whereupon the
duties
of the Corridor Contract Administrator hereunder shall pass to such
Person. In addition, upon the appointment of a successor
Trustee under the Pooling and Servicing Agreement, such successor
Trustee
shall succeed to the rights of the Trustee
hereunder.
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9. Miscellaneous.
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(a)
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This
Agreement shall be governed by and construed in accordance with the
laws
of the State of New York.
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(b)
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Each
of BNY and CHL hereby irrevocably waives, to the fullest extent permitted
by applicable law, any and all right to trial by jury in any legal
proceedings arising out of or relating to this
Agreement.
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(c)
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This
Agreement shall terminate upon the termination of all Corridor Contracts
and the disbursement by the Corridor Contract Administrator of all
funds
received under the Corridor Contracts to CHL and the Trustee on behalf
of
the Holders of the Benefited
Certificates.
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(d)
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This
Agreement may be amended, supplemented or modified in writing by
the
parties hereto.
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(e)
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This
Agreement may be executed by one or more of the parties to this Agreement
on any number of separate counterparts (including by facsimile
transmission), and all such counterparts taken together shall be
deemed to
constitute one and the same
instrument.
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(f)
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Any
provision of this Agreement which is prohibited or unenforceable
in any
jurisdiction shall, as to such jurisdiction, be ineffective to the
extent
of such prohibition or unenforceability without invalidating the
remaining
provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
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(g)
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The
representations and warranties made by the parties to this Agreement
shall
survive the execution and delivery of this Agreement. No act or omission
on the part of any party hereto shall constitute a waiver of any
such
representation or warranty.
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(h)
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The
article and section headings in this Agreement are for convenience
of
reference only, and shall not limit or otherwise affect the meaning
of
this Agreement.
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[SIGNATURE
PAGE FOLLOWS]
9
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and
delivered as of the day and year first above written.
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BANK OF NEW YORK,
as
Corridor Contract Administrator
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By:
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/s/ Xxxxxxxx Xxxxxx | |
| Name: Xxxxxxxx Xxxxxx | |||
| Title: Vice President | |||
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THE
BANK OF NEW YORK, not in its individual or corporate capacity but
solely
as Trustee
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By:
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/s/ Xxxxxxxx Xxxxxx | |
| Name: Xxxxxxxx Xxxxxx | |||
| Title: Vice President | |||
| COUNTRYWIDE HOME LOANS, INC. | |||
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By:
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/s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Executive Vice President | |||
10
EXHIBIT
A
CORRIDOR
CONTRACTS
[Filed
as
Exhibits 99.8, 99.9, and 99.10 herein]
A-1
