EXHIBIT 99.4
The Item 1115 Agreement
Item 1115 Agreement dated as of May 25, 2006 ("Agreement"), between
COUNTRYWIDE HOME LOANS, INC., a New York corporation ("CHL"), CWMBS, Inc., a
Delaware corporation ("CWMBS"), CWALT, Inc., a Delaware corporation ("CWALT")
and XXXXXX XXXXXXX CAPITAL SERVICES INC., as counterparty (the "Counterparty").
RECITALS
WHEREAS, CWMBS and CWALT 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 the SPV or CHL may enter into certain
derivative agreements with respect to the Transaction (each, a "Derivative
Agreement"), including interest rate caps and interest rate or currency swaps,
for purposes of providing certain yield enhancements 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 with
respect to any Transaction with respect to which the Counterparty has agreed to
act as derivative Counterparty:
Section 1. Definitions
Company Information: As defined in Section 4(a)(i).
Company Financial Information: As defined in Section 2(a)(ii).
Countrywide Indemnified Party: As defined in Section 4(a).
Counterparty Guarantor: A parent company of the Counterparty who
provides a full and unconditional guaranty to honor the Counterparty's
obligations under any Derivative Agreements.
Counterparty Indemnified Party: As defined in Section 4(b).
Depositor: CWMBS or CWALT, as the case may be, with respect to the
related Registration Statement for which such entity is the registrant for the
applicable Transaction.
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.
Indemnified Party: As defined in Section 4(b).
Master Agreement: The ISDA Master Agreement between the Counterparty
and SPV, 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.
Sponsor: With respect to any Transaction, CHL or such other person
acting as sponsor (as that term is defined in Regulation AB) as identified to
the Counterparty by CHL at the time that the Counterparty is engaged to act as
derivative counterparty for the relevant Transaction.
Section 2. Information to be Provided by the Counterparty.
(a) Prior to printing the related Prospectus Supplement with respect to
a Transaction for which the Counterparty has agreed to act as
derivative counterparty,
(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, but only to the extent required
by Item 1115(a) of Regulation AB (as determined by CHL or any
other Sponsor of the Transaction). Such information shall
include, at a minimum, the following information:
(A) the Counterparty's legal name (and any d/b/a);
(B) the organizational form of the Counterparty;
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(C) a description of the general character of the business
of the Counterparty;
(D) a description of any affiliation (as set forth in Item
1119) between the Counterparty and any of the following
parties:
(1) The Bank of New York (or any other trustee
identified to the Counterparty by CHL at the time
that the Counterparty is engaged to act as
derivative counterparty for the relevant
Transaction);
(2) any originator contemplated by Item 1110 of
Regulation AB and identified to the Counterparty
by CHL at the time that the Counterparty is
engaged to act as derivative counterparty for the
relevant Transaction;
(3) any enhancement or support provider contemplated
by Items 1114 or 1115 of Regulation AB and
identified to the Counterparty by CHL at the time
that the Counterparty is engaged to act as
derivative counterparty for the relevant
Transaction; and
(4) any other material transaction party contemplated
by Item 1100(d)(1) of Regulation AB and identified
to the Counterparty by CHL at the time that the
Counterparty is engaged to act as derivative
counterparty for the relevant Transaction.
(ii) if requested by the related Depositor for the purpose of
compliance with Item 1115(b), as a result of the Sponsor's
determination of the significance percentage of the Derivative
Agreement in accordance with Item 1115 of Regulation AB (the
"Significance Percentage"), the Counterparty shall with
respect to a Transaction for which the Counterparty has agreed
to act as derivative counterparty:
(A) provide the financial data required by Item 1115(b)(1)
or (b)(2) of Regulation AB (as determined by CHL or any
other Sponsor of the Transaction and as specified by the
related Depositor to the Counterparty in writing) with
respect to a Counterparty Guarantor; provided that, each
of the requirements set forth in Rule 3-10(b) or 3-10(c)
of Regulation S-X, as applicable (or such other
requirements under Regulation AB as may become
applicable as a result of amendments to Regulation AB or
interpretive guidance issued by the Commission (or its
staff) uniformly applicable to registrants of
asset-backed securities; provided, that, CHL has
acknowledged that no amendment is required pursuant to
this agreement), shall be satisfied, including with
respect to the parent
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and the Counterparty and the financial statements of the
parent (as though the Counterparty was the issuer of
registered securities) (the "Company Financial
Information"), in a form appropriate for use in the
Prospectus Supplement and in an XXXXX-compatible format
(if not incorporated by reference) and hereby authorizes
the related Depositor to incorporate by reference the
financial data required by Item 1115(b)(2) of Regulation
AB; and
(B) if applicable, cause the Counterparty Guarantor's
accountants to issue their consent to the filing or the
incorporation by reference of such financial statements
in the Registration Statement;
provided, however, that in lieu of providing the information
specified in clauses (A) and (B) above, the Counterparty may, in its
sole discretion, cause another entity to replace the Counterparty
pursuant to Section 4(e)(i) below.
(b) Following the Closing Date with respect to a Transaction, but only
with respect to Exchange Act Reports required to be filed for the
applicable SPV,
(i) the Counterparty shall within ten business days after the
applicable event, (1) notify the related Depositor in writing
of any affiliations that develop following the Closing Date
between the Counterparty and any of the parties specified in
Section 2(a)(i)(D) (and any other parties with respect to the
Transaction contemplated by clauses (1) through (6) of Item
1119(a) of Regulation AB and identified in writing by the
related Depositor at least ten business days prior to the
Counterparty's furnishing such notice) and (2) provide to the
related Depositor a description of the nature of such
affiliations;
(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, in the Counterparty's sole discretion,
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 format (if not incorporated
by reference) and hereby authorizes the related Depositor to
incorporate by reference the financial data required by Item
1115(b)(2) of Regulation AB, and (2) if applicable, cause the
Counterparty Guarantor's accountants to issue their consent to
filing or incorporation by reference of such financial
statements in the Exchange Act Reports of the SPV, provided,
however, if CHL or any other Sponsor of the Transaction
determines, following request by the Counterparty, that the
Significance Percentage has been reduced below the percentage
for which such updated financial data and/or related
accountants' consent are required, (x) CHL shall promptly
notify the Counterparty of same and (y) for so long as the
Significance Percentage remains below the percentage for which
such updated financial data and/or related accountants'
consent are required, the
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applicable Depositor shall not include any Company Financial
Information in the Exchange Act Reports of the SPV and the
Counterparty shall not be obligated to provide such updated
financial data or any related accountants' consent; or (B)
assign the Derivative Agreement pursuant to Section 4(e)(i)
below, and
(iii) if the related Depositor requests Company Financial
Information from the Counterparty as a result of the Sponsor's
determination of the significance percentage of the Derivative
Agreement, for the purpose of compliance with Item 1115(b) of
Regulation AB following the Closing Date, the Counterparty
shall promptly upon determination that Company Financial
Information will be required from the Counterparty, but in no
event later than within 5 Business Days after its receipt of
written notice requesting same from such Depositor, in the
Counterparty's sole discretion, 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 format (if not incorporated by reference) and
hereby authorizes the related Depositor to incorporate by
reference the financial data required by Item 1115(b)(2) of
Regulation AB, (2) if applicable, cause the Counterparty
Guarantor's 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 format and if applicable, cause the
Counterparty Guarantor's accountants to issue their consent to
filing or incorporation by reference of such financial
statements in the Exchange Act Reports of the SPV; provided,
however, if CHL or any other Sponsor of the Transaction
determines, following request by the Counterparty, that the
Significance Percentage has been reduced below the percentage
for which such updated financial data and/or related
accountants' consent are required, (x) CHL shall promptly
notify the Counterparty of same and (y) for so long as the
Significance Percentage remains below the percentage for which
such updated financial data and/or related accountants'
consent are required, the applicable Depositor shall not
include any Company Financial Information in the Exchange Act
Reports of the SPV and the Counterparty shall not be obligated
to provide such updated financial data or any related
accountants' consent; or (B) assign the Derivative Agreement
pursuant to Section 4(e)(i) below.
(c) The applicable Depositor will provide the Counterparty with notice
no later than the 15 calendar days following the payment date for
the related Transaction for any distribution period in which the
significance percentage of the Derivative Agreement provided by
Counterparty to any SPV is 9.00% or more in respect of Item
1115(b)(1), or 19.00% or more in respect of Item 1115(b)(2));
provided, however, that the failure to notify the Counterparty shall
not relieve the
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Counterparty of its obligations under this Agreement and shall not
relieve the applicable Depositor of any of its other obligations
under this Agreement.
Section 3. Representations and Warranties and Covenants.
(a) With respect to any Transaction, the Counterparty represents and
warrants to the applicable Depositor, as of the date on which
information is first provided to such Depositor under Section
2(a)(ii), Section 2(b)(ii) or Section 2(b)(iii)(A), that, except as
disclosed in writing to such Depositor prior to such date:
(i) The Counterparty Guarantor is required to file reports with
the Commission pursuant to section 13(a) or 15(d) of the
Exchange Act.
(ii) The Counterparty Guarantor has filed all reports and other
materials required to be filed by such requirements during the
preceding 12 months (or such shorter period that such party
was required to file such reports and materials).
(iii) The reports filed by the Counterparty Guarantor include (or
properly incorporate by reference) the financial statements of
the Counterparty Guarantor.
(iv) The accountants who certify the financial statements and
supporting schedules of the Counterparty Guarantor included in
the Company Financial Information (if applicable) are
independent registered public accountants as required by the
Securities Act.
(v) If applicable, the financial statements included in the
Company Financial Information present fairly the consolidated
financial position of the Counterparty Guarantor 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
consistent with that of the audited financial statements of
the Counterparty Guarantor.
(vi) 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 applicable requirements of Item 1115(b) of Regulation
AB (in the case of the Company Financial Information)
(including with
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respect to the presentation of the financial information of
the Counterparty Guarantor) 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) If the Counterparty Guarantor has provided Company Financial
Information that is incorporated by reference into the Registration
Statement of the applicable Depositor, the Counterparty Guarantor,
so long as such Depositor is required to file Exchange Act Reports
with respect to the SPV, will file promptly all financial statements
required to be filed by it with the Commission pursuant to Section
13 or 14 of the Exchange Act.
(c) If at any time the representations and warranties set forth in
3(a)(i) through (iii) are no longer true and correct with respect to
any Transaction, the Counterparty shall provide notice to the
applicable Depositor, and if any Company Financial Information is
required to be included in such Depositor's Registration Statement,
or the Exchange Act Reports of the related SPV, will provide to such
Depositor such Company Financial Information in XXXXX-compatible
format no later than the 20th calendar day of the month in which any
of the representations or warranties in Section 3(a)(i) through
(iii) ceased to be correct, it being understood that providing such
Company Financial Information shall be deemed to cure any breach of
such representations and warranties.
(d) The Counterparty agrees that the terms of Section 4(e)(i) 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; provided,
however, that the obligations of the Counterparty under this
Agreement shall not be covered by any guaranty of the Derivative
Agreement.
(e) Upon reasonable request, in connection with either the related
Depositor's request for Company Financial Information from the
Counterparty or CHL or any other Sponsor of the Transaction
determining that the Significance Percentage has been reduced below
the percentage for which such updated financial data and/or related
accountants' consent are required, CHL or any other Sponsor of the
Transaction shall provide the Counterparty its calculation of the
Significance Percentage.
Section 4. Indemnification; Remedies
(a) The Counterparty shall indemnify CHL and the applicable Depositor
for the applicable Transaction, each person responsible for
execution of a certification pursuant to Rule 13a-14(d) or Rule
15d-14(d) under the Exchange Act with respect to the applicable
Transaction; each broker dealer acting as underwriter with respect
to the applicable Transaction, 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) with respect to the applicable
Transaction; and the respective
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present and former directors, officers, employees and agents of each
of the foregoing (each, a "Countrywide Indemnified Party"), 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,
accountants' consent or other material provided in written or
electronic form under Section 2 by or on behalf of the
Counterparty with respect to the applicable Transaction
(collectively, with respect to the applicable Transaction 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;
(ii) any failure by the Counterparty to deliver any information,
report, certification, accountants' consent or other material
or to assign the Derivative Agreement when and as required
under Section 2 for the applicable Transaction; or
(iii) 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 for the applicable Transaction, to the extent
that such breach is not cured by such 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, that is not cured in
accordance with Section 3(c).
In the case of any failure of performance described in clause
(a)(ii) of this Section, the Counterparty shall promptly reimburse
the applicable Depositor and each Person responsible for the
preparation, execution or filing of any report required to be filed
with the Commission with respect to the related SPV, or for
execution of a certification pursuant to Rule 13a-14(d) or Rule
15d-14(d) under the Exchange Act with respect to such SPV, for all
costs reasonably incurred by each such party in order to obtain the
information, report, certification, accountants' consent or other
material not delivered as required by the Counterparty.
(b) CHL and the applicable Depositor shall indemnify the Counterparty,
each person who controls the Counterparty (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 (each, a "Counterparty
Indemnified Party"; and each of the Countrywide Indemnified Party
and the Counterparty Indemnified Party shall be referred to as the
"Indemnified Party"), 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
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sustain arising out of or based upon any untrue statement or alleged
untrue statement of any material fact contained in the Prospectus
Supplement or any free writing prospectus or any other offering
materials with respect to the related Securities or the omission or
alleged omission to state a material fact necessary in order to make
the statements therein not misleading; provided, however, that the
indemnity set forth in this Section 4(b) shall not apply insofar as
such losses, claims, expenses, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained
in the Company Information or the omission or alleged omission to
state in the Company Information a material fact necessary in order
to make the statements therein not misleading and/or (ii) a breach
of the representations set forth in Sections 3(a) above; provided
further, that the foregoing proviso shall not apply to errors in the
copying, filing or use of, or incorporation by reference of any
Company Financial Information into (unless such error resulted from
a breach of the representations set forth in 3(a)), any registration
statement, prospectus or other offering materials, or Exchange Act
Filing, relating to the Securities or the Transaction.
(c) Promptly after the Indemnified Party receives notice of the
commencement of any such action, the Indemnified Party will, if a
claim in respect thereof is to be made pursuant to this Agreement,
promptly notify the indemnifying party in writing of the
commencement thereof. In case any such action is brought against the
Indemnified Party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the Indemnified Party in
any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees
and expenses of any separate counsel retained by the Indemnified
Party except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the Indemnified Party.
Notwithstanding the indemnifying party's election to appoint counsel
to represent the Indemnified Party in an action, the Indemnified
Party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the use of
counsel chosen by the indemnifying party to represent the
Indemnified Party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of,
any such action include both the Indemnified Party and the
indemnifying party, and the Indemnified Party shall have reasonably
concluded that there may be legal defenses available to it that are
different from or additional to those available to the indemnifying
party, (iii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the Indemnified Party to represent the
Indemnified Party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall
authorize the Indemnified Party to employ separate counsel at the
expense of the indemnifying party. The indemnifying party will not,
without the prior written consent of the Indemnified Party, settle
or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in
respect of which
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indemnification or contribution may be sought hereunder (whether or
not the Indemnified Party is an actual or potential party to such
claim or action) unless such settlement, compromise or consent
includes an unconditional release of each Indemnified Party from all
liability arising out of such claim, action, suit or proceeding and
does not include any admission of wrongdoing by any Indemnified
Party. In addition, for so long as the indemnifying party is
covering all costs and expenses of the Indemnified Party as provided
herein, no Indemnified Party will settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder without the
consent of the indemnifying party.
(d) Nothing in this agreement shall be construed to allow the
Indemnified Party to recover punitive damages or consequential
damages from the indemnifying party.
(e) (i) With respect to any Transaction, if the Counterparty has
failed to deliver, or elects not to deliver, any information,
report, or accountants' consent when and as required under
Section 2, or if there is a material breach by the
Counterparty of a representation or warranty pursuant to
Section 3 which (A) is not cured by the Closing Date for such
Transaction (or in the case of information needed for purposes
of printing the Prospectus Supplement, the date of printing
the Prospectus Supplement), in the case of Company Financial
Information required pursuant to Section 2(a)(ii) or a
representation or warranty pursuant to Section 3 and made as
of a date prior to the relevant Closing Date or (B) is not
cured in the lesser of (x) ten calendar days after the date on
which such information, report, or accountants' consent was
required to be delivered or after such material breach or (y)
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), in the case of Company Financial Information required
pursuant to Section 2(b) or a representation or warranty
pursuant to Section 3 and made as of a date subsequent to the
relevant Closing Date and the Counterparty has not, at its own
cost, within the period described in clause (A) or (B) above,
caused another entity (which meets any applicable ratings
threshold in the Derivative Agreement) to replace the
Counterparty as party to the Derivative Agreement that (i) has
signed an agreement with CHL and the applicable Depositor
substantially in the form of this Agreement (except that the
financial information requirements may relate solely to such
successor entity) and (ii) has agreed to deliver any
information, report, certification or accountants' consent
when and as required under Section 2, on terms substantially
similar to the Derivative Agreement, then an Additional
Termination Event (as defined in the Master Agreement) shall
immediately and automatically have occurred under the
applicable Derivative Agreement with respect to such
Transaction, with the Counterparty as the sole Affected Party
(as defined in the Master Agreement). In the event of a
termination resulting from such Additional
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Termination Event, a termination payment (if any) shall be
payable by the applicable party as of the Early Termination
Date as determined by the application of Section 6(e)(ii) of
the Master Agreement.
(ii) In the event that the Counterparty or the SPV has found a
replacement entity in accordance with Section 4(e)(i), 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 Agreement. 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) Calculation of Significance Percentage. With respect to any
Derivative Agreement, CHL shall be solely responsible for
calculation of the Significance Percentage.
(b) 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.
(c) 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.
(d) 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, in each case, not in their
individual capacities, but solely in their capacities as trustee or
Administrator, as applicable, to the extent expressly set forth
herein.
(e) 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.
(f) 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
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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.
(g) 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.
(h) 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.
(i) 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.
(j) 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.
(k) CHL agrees to provide to the Counterparty prior to May [o ], 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.
(l) Notices. All notices hereunder shall be in writing and shall be
deemed to have been duly given when delivered by mail or by
facsimile transmission to: (a) in the case of the Counterparty,
Xxxxxx Xxxxxxx Capital Services Inc.
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Foo
Facsimile No.: 000-000-0000
with a copy to:
Xxxxxx Xxxxxxx Capital Services Inc.
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxx, Esq.
Facsimile No.: 000-000-0000
and (b) in the case of CHL and the related Depositor,
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0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: Legal Department
(m) Notwithstanding anything to the contrary in this Agreement, with
respect to any Transaction and the parties to this Agreement that
are a party to such Transaction, the rights and obligations of such
parties shall not apply to, or affect in any way, (a) any other
parties hereto that are not a party to such Transaction or (b) any
other Transaction under this Agreement.
[SIGNATURE PAGE FOLLOWS]
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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.
CWMBS, INC.
By: ____________________________________
Name:
Title:
CWALT, INC.
By: ____________________________________
Name:
Title:
COUNTRYWIDE HOME LOANS, INC.
By: ____________________________________
Name:
Title:
XXXXXX XXXXXXX CAPITAL SERVICES INC.
By: ____________________________________
Name:
Title:
