EXHIBIT 99.3
ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT, dated as of June 29, 2006 ("Assignment
Agreement"), among COUNTRYWIDE HOME LOANS, INC. ("Assignor"), JPMORGAN CHASE
BANK, N.A. ("Assignee"), not in its individual capacity but solely in its
capacity as Cap Contract Administrator for CWHEQ Revolving Home Equity Loan
Trust, Series 2006-E, pursuant to a Cap Contract Administration Agreement (the
"Cap Contract Administration Agreement") dated as of June 29, 2006, and
BARCLAYS BANK PLC ("Remaining Party").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, effective as of June 29, 2006 Assignor desires to assign all of
its rights and delegate all of its duties and obligations to Assignee under a
certain Transaction (the "Assigned Transaction") as evidenced by a certain
confirmation with a Trade Date of June 12, 2006 whose BARCLAYS BANK PLC
reference number is 1239473B \ 0 (the "Confirmation"), a copy of which is
attached hereto as Exhibit I;
WHEREAS, Assignor and Remaining Party executed and delivered the
Confirmation in connection with an ISDA Master Agreement (Multicurrency--Cross
Border) form (the "ISDA Form Master Agreement");
WHEREAS, Assignee desires to accept the assignment of rights and assume
the delegation of duties and obligations of the Assignor under the Assigned
Transaction and the Confirmation, including any modifications that may be
agreed to by Assignee and Remaining Party; and
WHEREAS, Assignor desires to obtain the written consent of Remaining
Party to the assignment, delegation, and assumption and Remaining Party
desires to grant such consent in accordance with the terms hereof.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained and for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. Assignment and Assumption. Effective as of and from June 29, 2006
(the "Effective Date"), Assignor hereby assigns all of its rights and
delegates all of its duties and obligations to Assignee and Assignee hereby
assumes all Assignor's rights, duties, and obligations under the Assigned
Transaction and the Confirmation arising on or after the Effective Date.
2. Release. Effective as of and from the Effective Date, Remaining Party
and Assignor hereby release one another from all duties and obligations owed
under and in respect of the Assigned Transaction and the Confirmation, and
Assignor hereby terminates its rights under and in respect of the Assigned
Transaction; provided, that such release shall not affect Assignor's
obligation to pay the Fixed Amount 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) JPMorgan Chase Bank, N.A. ("JPMorgan") is entering into this
Assignment Agreement not in its individual capacity but solely in its capacity
as Cap Contract Administrator under the Cap Contract Administration Agreement;
and (b) in no case shall JPMorgan (or any person acting as successor Cap
Contract Administrator under the Cap Contract Administration Agreement) be
personally liable for or on account of any of the statements, representations,
warranties, covenants or obligations stated to be those of Assignee under the
terms of the Assigned Transaction, all such liability, if any, being expressly
waived by Assignor and Remaining Party and any person claiming by, through or
under either such party.
4. Consent and Acknowledgment of Remaining Party. Remaining Party hereby
consents to the assignment and delegation by Assignor to Assignee of all the
rights, duties, and obligations of Assignor under the Assigned Transaction
pursuant to this Assignment Agreement.
5. Governing Agreement. The Assigned Transaction and the Confirmation
shall form a part of, and be subject to, the ISDA Form Master Agreement, as if
Assignee and Remaining Party had executed such agreement on the Effective Date
of the Transaction (the "Assignee Agreement"). The Confirmation, together with
all other documents referring to the ISDA Form Master Agreement confirming
transactions entered into between Assignee and Remaining Party, shall form a
part of, and be subject to, the Assignee Agreement. For the purposes of this
paragraph, capitalized terms used herein and not otherwise defined shall have
the meanings assigned in the ISDA Form Master Agreement.
6. Additional Provision. Each party hereby agrees that the Confirmation
and thus the Assigned Transaction are each hereby amended as follows:
(a) The following additional provision shall be added as a new Section
8:
"Regulation AB Compliance. Party A and Party B agree that the
terms of the Item 1115 Agreement dated as of February 16, 2006
(the "Regulation AB Agreement"), between Countrywide Home Loans,
Inc., CWABS, INC., CWMBS, Inc., CWALT, Inc., CWHEQ, Inc. and
Barclays Bank PLC shall be incorporated by reference into this
Agreement so that Party B shall be an express third party
beneficiary of the Regulation AB Agreement. A copy of the
Regulation AB Agreement is attached hereto as Annex A."
(b) The Item 1115 Agreement dated as of February 16, 2006, between
Countrywide Home Loans, Inc., CWABS, INC., CWMBS, Inc., CWALT, Inc.,
CWHEQ, Inc. and Barclays Bank PLC, a copy of which is attached hereto as
Exhibit II, shall be added as Annex A.
7. Representations. Each party hereby represents and warrants to the
other parties as follows:
(a) It is duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization or incorporation;
2
(b) It has the power to execute and deliver this Assignment Agreement;
and
(c) Its obligations under this Assignment Agreement constitute its
legal, valid and binding obligations, enforceable in accordance
with their respective terms.
As of the Effective Date, each of Assignor and Remaining Party
represents that no event or condition has occurred that constitutes an Event
of Default, a Potential Event of Default or, to the party's knowledge, a
Termination Event (as such terms are defined in the Confirmation and Assignee
Agreement), with respect to the party, and no such event would occur as a
result of the party's entering into or performing its obligations under this
Assignment Agreement.
8. Indemnity. Each of Assignor and Remaining Party hereby agrees to
indemnify and hold harmless Assignee with respect to any and all claims
arising under the Assigned Transaction prior to the Effective Date. Each of
Assignee and Remaining Party (subject to the limitations set forth in
paragraph 3 above) hereby agrees to indemnify and hold harmless Assignor with
respect to any and all claims arising under the Assigned Transaction on or
after the Effective Date.
9. Governing Law. This Assignment Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
10. Notices. For the purposes of this Assignment Agreement and Section
12(a) of the ISDA Form Master Agreement of the Assigned Transaction, the
addresses for notices or communications are as follows: (i) in the case of
Assignor, Countrywide Home Loans, Inc., 0000 Xxxx Xxxxxxx, Xxxxxxxxx,
Xxxxxxxxxx 00000, Attention: 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, JPMorgan Chase Bank, N.A., 4 New York Plaza, 6th Floor, New York,
New York 10004, Attention: Worldwide Securities Services/Structure Finance
Services, Countrywide HEL CWHEQ 2006-E or such other address as may be
hereafter furnished in writing to Assignor and Remaining Party; and (iii) in
the case of Remaining Party, Barclays Bank PLC, 5 The North Colonade, Canary
Wharf, E14 4 BB, such other address as may be hereafter furnished in writing
to Assignor and Assignee.
11. Payments. All payments (if any) remitted by Remaining Party under
the Assigned Transaction shall be made by wire transfer according to the
following instructions:
JPMorgan Chase Bank, N.A. - Houston, TX.
ABA# 000000000
Acct Number: 00103409232
Acct Name: Houston Structured Finance
Ref: CWHEQ 2006-E
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.
3
IN WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement
as of the date first above written.
COUNTRYWIDE HOME LOANS, INC.
By: /s/ Xxxxxx Xxxxx
----------------------------------------
Name: Xxxxxx Xxxxx
--------------------------------------
Title: Executive Vice President
-------------------------------------
JPMORGAN CHASE BANK, N.A., not in its
individual capacity but solely as Cap
Contract Administrator for CWHEQ Revolving
Home Equity Loan Trust, Series 2006-E
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxxxx
---------------------------------------
Title: Attorney-In-Fact
--------------------------------------
BARCLAYS BANK PLC
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
---------------------------------------
Title: Director
--------------------------------------
EXHIBIT I
CONFIRMATION
Page 14 of 14
[LOGO OMITTED] BARCLAYS 5 The North Colonnade
CAPITAL Xxxxxx Xxxxx
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
Tel x00 (0)00 0000 0000
To: COUNTRYWIDE HOME LOANS INCORPORATED (the "Counterparty")
Attn: XXXX XXXXXX
Fax No: (00)0 000-0000000
From: BARCLAYS BANK PLC (LONDON HEAD OFFICE) ("Barclays")
Date: June 21, 2006
Reference: 1239473B\0
Rate Cap Confirmation
The purpose of this facsimile (this "Confirmation") is to confirm the terms
and conditions of the Transaction entered into between us on the Trade Date
specified below (the "Transaction").
The definitions and provisions contained in the 2000 ISDA Definitions (the
"2000 Definitions"), as published by the International Swaps and Derivatives
Association, Inc. ("ISDA") are incorporated into this Confirmation. In the
event of any inconsistency between the 2000 Definitions and this Confirmation,
this Confirmation will govern for the purposes of the Transaction. Reference
herein to a "Transaction" shall be deemed to be reference to a "Swap
Transaction" for the purposes of the 2000 Definitions. Capitalized terms used
in this Confirmation and not defined in this Confirmation or the 2000
Definitions shall have the respective meaning assigned in the Agreement. Each
party hereto agrees to make payment to the other party hereto in accordance
with the provisions of this Confirmation and of the Agreement. In this
Confirmation, "Party A" means Barclays and "Party B" means the Counterparty.
1. This Confirmation supersedes any previous Confirmation or other
communication with respect to the Transaction and evidences a complete and
binding agreement between you and us as to the terms of the Swap Transaction
to with this Confirmation relates. This Confirmation is subject to the terms
and conditions of the ISDA Master Agreement dated as of May 17, 1996, between
each of Party A and Party B and shall be subject to that ISDA Master
Agreement.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
--------------------------------------------------------- ------------------------------------------------------
2. TRADE DETAILS
--------------------------------------------------------- ------------------------------------------------------
Notional Amount: With respect to any Calculation Period, the amount
set forth for such period in Schedule A attached
hereto.
--------------------------------------------------------- ------------------------------------------------------
Trade Date: June 12, 2006
--------------------------------------------------------- ------------------------------------------------------
Effective Date: June 29, 2006
--------------------------------------------------------- ------------------------------------------------------
Termination Date: January 15, 2012, subject to adjustment in
Page 2 of 11
--------------------------------------------------------- ------------------------------------------------------
accordance with the Following Business Day
Convention.
--------------------------------------------------------- ------------------------------------------------------
Fixed Amounts:
-------------------------------------------------------- -------------------------------------------------------
Fixed Amount Payer: Counterparty
-------------------------------------------------------- -------------------------------------------------------
Fixed Rate Payer Payment Date(s): June 14, 2006; subject to adjustment in accordance
with the Following Business Day Convention.
Fixed Amount: USD23,500
-------------------------------------------------------- -------------------------------------------------------
Floating Amounts: To be determined in accordance with the following
formula:
Greater of (i) (Floating Rate -- Cap Rate) + Notional
Amount + Floating Rate Day Count Fraction, and
(ii) zero.
-------------------------------------------------------- -------------------------------------------------------
Floating Amount Payer: Barclays
-------------------------------------------------------- -------------------------------------------------------
Cap Rate Please see Schedule attached hereto
-------------------------------------------------------- -------------------------------------------------------
Floating Rate Payer Payment Date(s): Each Payment shall be applicable. For each Calculation
Period, the first Business Day prior to each Floating
Rate Payer Period End Date.
-------------------------------------------------------- -------------------------------------------------------
Floating Rate Payer Period End Date(s): The 15th of each month in each year from (and
including) August 15, 2006 to (and including) the
Termination Date; subject to adjustment in accordance
with the Following Business Day Convention
Floating Rate Option: USD-LIBOR-BBA. For the avoidance of doubt, the
Floating Rate shall be subject to interpolation.
Floating Rate Day Count Fraction: Actual/360
Designated Maturity: 1 Month
-------------------------------------------------------- -------------------------------------------------------
Reset Dates: The first day of each Calculation Period.
-------------------------------------------------------- -------------------------------------------------------
Business Days: New York
--------------------------------------------------------- ------------------------------------------------------
Governing Law: The Transaction and this Confirmation will be
governed by and construed in accordance with laws of
the State of New York (without reference to choice
of law doctrine except Section 5-1401 and Section
5-1402 of the New York General Obligation Law).
--------------------------------------------------------- ------------------------------------------------------
3. ACCOUNT DETAILS
--------------------------------------------------------- ------------------------------------------------------
Payments to Barclays: Correspondent: BARCLAYS BANK PLC NEW YORK
FFED: 000000000
Beneficiary: BARCLAYS SWAPS
Beneficiary Account: 000-00000-0
--------------------------------------------------------- ------------------------------------------------------
Page 3 of 11
--------------------------------------------------------- ------------------------------------------------------
Payments to Counterparty: Beneficiary Account: BANK OF AMERICA
NA-SAN FRANCISCO
FEED: 121000358
Beneficiary: COUNTRYWIDE HOME LOANS, INC.
A/C: 12352 06200
--------------------------------------------------------- ------------------------------------------------------
4. OFFICES
--------------------------------------------------------- ------------------------------------------------------
Barclays: Address for Notices:
--------------------
0 Xxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xx0 - 0XX
Tel: 00(00) 0000 0000
Fax: 00(00) 0000 0000
--------------------------------------------------------- ------------------------------------------------------
Counterparty: Address for Notices:
--------------------
X/X XXXXXXXXXXX XXXXXXX
XXXXXXXXXXX
00000 XXXXXX XXXX
MAIL STOP WLAR-43
XXXXXXXX XXXXXXX XX 00000
Tel: 0(000) 000-0000
Fax: 0(000) 000-0000
--------------------------------------------------------- ------------------------------------------------------
5. Left Intentionally Blank.
6. Assignment of the Transaction:
At the option of the Counterparty, upon payment of the Fixed Amount and
satisfaction of any other conditions described herein, on a date in the
future, the ("Transfer Date") Barclays and an entity (the "Transferee") to be
designated by the Counterparty and approved by Barclays will enter into a
novation agreement (substantially in the form of the ISDA Form Novation
Agreement published by the International Swaps and Derivatives Association,
Inc., a copy of which is attached hereto as Annex A and otherwise acceptable
to Barclays) under which, among other things, the Counterparty will transfer
its interest as the Counterparty to the Transaction under this Confirmation to
the Transferee, and under which the Transferee shall assume the rights and
obligations of the Counterparty to the Transaction under this Confirmation
(the "Transfer"). Upon transfer of this Transaction to the Transferee, all
references to Party B or the Counterparty or words of similar meaning or
import shall be deemed to be a reference to the Transferee.
As of the date of such Transfer, the Transferee and Barclays will be deemed to
enter into an ISDA Master Agreement in the form of the 1992 ISDA Master
Agreement (Multicurrency - Cross Border) published by the International Swaps
and Derivatives Association, Inc. (the "Form ISDA Master Agreement") without
any Schedule, except for the elections that are provided in Part 7 of this
Confirmation. As of the date of such Transfer, as between the Transferee and
Barclays, this Confirmation shall be deemed to supplement, form a part of, and
be subject to the Form ISDA Master Agreement (together, the "Transferred
Agreement"). All provisions contained in the Form ISDA Master Agreement shall
govern this Confirmation except as expressly modified herein.
7. Provisions Deemed Incorporated into this Agreement upon Transfer:
As of the date of Transfer, the following provisions i) through vii) will be
deemed to be incorporated into the Transferred Agreement.
i) The parties agrees that subparagraph (ii) of Section 2(e) of the
ISDA Form Master Agreement will apply to any Transaction.
Page 4 of 11
ii) Termination Provisions. For purposes of the Transferred Agreement:
(a) "Specified Entity" means in relation to Party A for the
purpose of the Agreement:
Section 5(a)(v): None;
Section 5(a)(vi): None;
Section 5(a)(vii): None;
Section 5(b)(iv): None;
And in relation to Party B for the purpose of this Agreement:
Section 5(a)(v): None;
Section 5(a)(vi): None;
Section 5(a)(vii): None;
Section 5(b)(iv): None;
(b) "Specified Transaction" shall be inapplicable to Party A and
Party B.
(c) The "Breach of Agreement" provisions of Section 5(a)(ii) of
the Agreement will be inapplicable to Party A and Party B.
(d) The "Credit Support Default" provisions of Section 5(a)(iii)
of the Agreement will be inapplicable to Party B.
(e) The "Misrepresentation" provisions of Section 5(a)(iv) of
the Agreement will be inapplicable to Party A and Party B.
(f) The "Default Under Specified Transaction" provision of
Section 5(a)(v) of the Agreement will be inapplicable to
Party A and Party B.
(g) The "Cross Default" provisions of Section 5(a)(vi) of the
Agreement will be inapplicable to Party A and Party B.
(h) The "Credit Event Upon Merger" provisions of Section
5(b)(iv) of the Agreement will be inapplicable to Party A
and Party B.
(i) The "Bankruptcy" provisions of Section 5(a)(vii)(2) will not
apply to Party B.
(j) The "Automatic Early Termination" provisions of Section 6(a)
of the Agreement will be inapplicable to Party A and Party
B.
(k) Payments on Early Termination. For the purpose of Section
6(e) of the Transferred Agreement.
(i) Market Quotation will apply.
(ii) The Second Method will apply.
iii) "Termination Currency" means United States Dollars.
iii) Tax Representations.
Payer Tax Representations. For the purpose of Section 3(e), each
of Barclays and the Counterparty makes the following
representation:
It is not required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, of
any Relevant Jurisdiction to make any deduction or
withholding for or on account of any Tax from any payment
(other than interest under Section 2(e), 6(d)(ii) or 6(e) of
this Agreement) to be made by it to the other party under
this Agreement. In making this representation, it may rely
on: (i) the accuracy of any representation made by the other
party pursuant to Section 3(f) of
Page 5 of 11
this Agreement; (ii) the satisfaction of the agreement of
the other party contained in Section 4(a)(i) or 4(a)(iii) of
this Agreement and the accuracy and effectiveness of any
document provided by the other party pursuant to Section
4(a)(i) or 4(a)(iii) of this Agreement; and (iii) the
satisfaction of the agreement of the other party contained
in Section 4(d) of this Agreement, provided that it shall
not be a breach of this representation where reliance is
placed on clause (ii) and the other party does not deliver a
form or document under Section 4(a)(iii) by reason of
material prejudice to its legal or commercial position.
Barclays Payee Tax Representations. For the purpose of Section
3(f), Barclays makes the following representations:
With respect to payments made to Barclays which are not
effectively connected to the U.S.: It is a non-U.S. branch
of a foreign person for U.S. federal income tax purposes.
With respect to payments made to Barclays which are
effectively connected to the U.S.: Each payment received or
to be received by it in connection with this Agreement will
be effectively connected with its conduct of a trade or
business in the U.S.
Counterparty Payee Tax Representations. For the purpose of Section
3(f), Counterparty makes the following representation:
Counterparty represents that it is a "United States Person"
as such term is defined in Section 7701(a)(30) of the
Internal Revenue Code of 1986, as amended.
iv) Documents to be Delivered. For the purpose of Section 4(a):
(a) Tax forms, documents or certificates to be delivered are:
---------------------------------------- -------------------------------------- --------------------------------------
Party required to deliver document Form/Document/Certificate Date by which to be delivered
---------------------------------------- -------------------------------------- --------------------------------------
Barclays and Counterparty Any documents required or reasonably Promptly after the earlier of (i)
requested to allow the other party reasonable demand by either party or
to make payments under this (ii) within 30 days of the Transfer
Agreement without any deduction or Date.
withholding for or on the account of
any Tax or with such deduction or
withholding at a reduced rate.
---------------------------------------- -------------------------------------- --------------------------------------
(b) Other documents to be delivered are:
------------------------------- --------------------------------------- ------------------------ ---------------------
Party required to deliver Form/Document/Certificate Date by which to be Covered by Section
document delivered 3(d) representing
------------------------------- --------------------------------------- ------------------------ ---------------------
Barclays and the Counterparty Any documents required or reasonably Transfer Date Yes
requested by the receiving party to
evidence authority of the delivering
party or its Credit Support
Provider, if any, to execute and
deliver this Agreement, any
Confirmation, and any Credit Support
Documents to which it is a party, and
to evidence the authority of the
delivering party to its Credit
Support Provider to perform its
obligations under this Agreement, such
Confirmation and/or Credit Support
Document, as the case may be.
------------------------------- --------------------------------------- ------------------------ ---------------------
Page 6 of 11
------------------------------- --------------------------------------- ------------------------ ---------------------
Barclays and the Counterparty A certificate of an authorized Transfer Date Yes
officer of the party, as to the
incumbency and authority of the
respective officers of the party
signing this agreement, or any
relevant Credit Support
Confirmation, as the case may be.
------------------------------- --------------------------------------- ------------------------ ---------------------
v) Miscellaneous.
(a) Address for Notices: For the purposes of Section 12(a) of this
Agreement:
Address for notices or communications to Barclays:
Address: 0 Xxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
X00 0XX
Facsimile: 00(00) 000 00000
Phone: 00(00) 000 00000
Address for notices or communications to the Counterparty:
To be provided by counterparty.
(b) Process Agent. For the purpose of Section 13(c):
Barclays appoints as the Process Agent: Barclays Bank PLC,
New York Branch.
Counterparty appoints as its Process Agent: Not Applicable.
(c) Offices. The provisions of Section 10(a) will apply to this
Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of this
Agreement:
Barclays is a Multibranch Party and may act through its
London and New York offices.
Counterparty is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Barclays; provided,
however, that if an Event of Default occurs with respect to
Barclays, the Counterparty shall be entitled to appoint a
financial institution which would qualify as a Reference Market
maker to act as Calculation Agent.
(f) Credit Support Document. Not applicable for either Barclays or the
Counterparty.
(g) Credit Support Provider.
With respect to Barclays: Not Applicable.
With respect to Counterparty: Not Applicable.
Page 7 of 11
(h) Governing Law. This Agreement shall be governed by, and construed
in accordance with the laws of the State of New York (without
reference to choice of law doctrine except Section 5-1401 and
Section 5-1402 of the New York General Obligation Law).
(i) Consent to Recording. Each party hereto consents and agrees the
monitoring or recording, at any time and from time to time, by the
other party of any and all communications between officers or
employees of the parties, waives any further notice of such
monitoring or recording and agrees to notify its officers and
employees of such monitoring or recording.
(j) Waiver of Jury Trial. To the extent permitted by applicable law,
each party irrevocably waives any and all right to trial by jury
in any legal proceeding in connection with this Agreement, any
Credit Support Document to which it is a Party, or any
Transaction. Each party also acknowledges that this waiver is a
material inducement to the other party's entering into this
Agreement.
(k) "Affiliate" Counterparty shall be deemed to not have any
Affiliates for purposes of this Agreement.
(l) Severability. If any term, provision, covenant, or condition of
this Agreement, or the application thereof to any party or
circumstance, shall be held to be invalid or unenforceable (in
whole or in part) for any reason, the remaining terms, provisions,
covenants, and conditions hereof shall continue in full force and
effect as if this Agreement had been executed with the invalid or
unenforceable portion eliminated, so long as this Agreement as so
modified continued to express, without material change, the
original intentions of the parties as to the subject matter of
this Agreement and the deletion of such portion of this Agreement
will not substantially impair the respective benefits or
expectations of the parties.
The parties shall endeavour to engage in good faith negotiations
to replace any invalid or unenforceable term, provision, covenant
or condition with a valid or enforceable term, provision, covenant
or condition, the economic effect of which comes as close as
possible to that of the invalid or unenforceable term, provision,
covenant or condition.
vi) Additional Representations:
Each party represents to the other party that (absent a written
agreement between the parties that expressly imposes affirmative
obligations to the contrary):
(a) Non-Reliance. It is acting for its own account, and it has made
its own independent decisions to enter into the Transaction and as
to whether the Transaction is appropriate or proper based upon its
own judgment and upon advice from such advisers as it has deemed
necessary. It is not relying on any communication (written or
oral) of the other party as investment advice or as a
recommendation to enter into the Transaction; it being understood
that information and explanations related to the terms and
conditions of the Transaction shall not be considered investment
advice or a recommendation to enter into the Transaction. No
communication (written or oral) received from the other party
shall be deemed to be an assurance or guarantee as to the expected
results of the Transaction.
(b) Assessment and Understanding. It is capable of assessing the
merits of and understanding (on its own behalf or through
independent professional advice), and understands and accepts, the
terms, conditions and risks of the Transaction. It is also capable
of assuming, and assumes, the risks of the Transaction.
Page 8 of 11
(c) Status of Parties. The other party is not acting as a fiduciary
for or an adviser to it in respect of the Transaction.
(d) Purpose. It is entering into the Transaction for the purposes of
hedging its assets or liabilities or in connection with a line of
business.
(e) Eligible Contract Participant Representation. It is an "eligible
contract participant" within the meaning of Section 1(a)(12) of
the Commodity Exchange Act, as amended, including as amended by
the Commodity Futures Modernization Act of 2000.
vii) Other Provisions.
(a) Fully-Paid Party Protected. Notwithstanding the terms of Sections
5 and 6 of the Agreement if Party B has satisfied in full all of
its payment obligations under Section 2(a)(i) of the Agreement,
then unless Party A is required pursuant to appropriate
proceedings to return to Party B or otherwise returns to Party B
upon demand of Party B any portion of such payment, (a) the
occurrence of an event described in Section 6(a) of the Agreement
with respect to Party B shall not constitute an Event of Default
or Potential Event of Default with respect to Party B as the
Defaulting Party and (b) Party A shall be entitled to designate an
Early Termination Event pursuant to Section 6 of the Agreement
only as a result of a Termination Event set forth in either
Section 5(b)(i) or Section 5(b)(ii) of the Agreement with respect
to Party A as the Affected Party or Section 5(b)(iii) of the
Agreement with respect to Party A as the Burdened Party. For
purposes of the Transaction to which this Confirmation relates,
Party B's only obligation under Section 2(a)(i) of the Agreement
is to pay the Fixed Amount on the Fixed Rate Payer Payment Date.
(b) Set-Off. Notwithstanding any provision of this Agreement or any
other existing or future agreement, each party irrevocably waives
any and all rights it may have to set off, net, recoup or
otherwise withhold or suspend or condition payment or performance
of any obligation between it and the other party hereunder against
any obligation between it and the other party under any other
agreements. The provisions for Set-Off set forth in Section 6(e)
of the Agreement shall not apply for purposes of this Transaction.
(c) Proceedings. Party A shall not institute against or cause any
other person to institute against, or join any other person in
instituting against, the Trust, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other
proceedings under any federal or state bankruptcy, dissolution or
similar law, for a period of one year and one day (or, if longer,
the applicable preference period) following indefeasible payment
in full of the Certificates.
Page 9 of 11
The time of dealing will be confirmed by Barclays upon written request.
Barclays is regulated by the Financial Services Authority. Barclays is acting
for its own account in respect of this Transaction.
Please confirm that the foregoing correctly sets forth all the terms and
conditions of our agreement with respect to the Transaction by responding
within three (3) Business Days by promptly signing in the space provided below
and both (i) faxing the signed copy to Incoming Transaction Documentation,
Barclays Capital Global OTC Transaction Documentation & Management, Global
Operations, Fax x(00) 00-0000-0000/6857, Tel x(00) 00-0000-0000/0178, and (ii)
mailing the signed copy to Barclays Bank PLC, 5 Xxx Xxxxx Xxxxxxxxx, Xxxxxx
Xxxxx, Xxxxxx X00 0XX Attention of Incoming Transaction Documentation,
Barclays Capital Global OTC Transaction Documentation & Management, Global
Operations. Your failure to respond within such period shall not affect the
validity or enforceability of the Transaction as against you. This facsimile
shall be the only documentation in respect of the Transaction and accordingly
no hard copy versions of this Confirmation for this Transaction shall be
provided unless the Counterparty requests.
For and on behalf of For and on behalf of
BARCLAYS BANK PLC COUNTRYWIDE HOME LOANS
INCORPORATED
/s/ Xxxxxx Xxxxxxxxx /s/ Xxxxxxxx Xxxxxx Xxxxxxxx
---------------------------------- -----------------------------
Name: Name:
Authorised Signatory Authorised Signatory
Date: 21/06/2006 Title: Senior Managing Director
and Treasurer
Date:
Barclays Bank PLC and its Affiliates, including Barclays Capital Inc., may
share with each other information, including non-public credit information,
concerning its clients and prospective clients. If you do not want such
information to be shared, you must write to the Director of Compliance,
Barclays Bank PLC, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000.
Page 10 of 11
Schedule A to the Confirmation dated as of June 14, 2005
Re: Reference Number 123947SB
PERIOD START DATE PERIOD END DATE NOTIONAL (in USD) CAP RATE
29-Jun-06 15-Aug-06 1,285,000,000 7.56030%
15-Aug-06 15-Sep-06 1,242,679,989 16.15780%
15-Sep-06 15-Oct-06 1,201,753,740 16.70070%
15-Oct-06 15-Nov-06 1,162,175,350 16.15780%
15-Nov-06 15-Dec-06 1,123,900,429 16.70070%
15-Dec-06 15-Jan-07 1,086,886,049 16.15780%
15-Jan-07 15-Feb-07 1,051,090,696 16.15780%
15-Feb-07 15-Mar-07 1,016,474,222 17.90290%
15-Mar-07 15-Apr-07 982,997,802 16.15780%
15-Apr-07 15-May-07 950,625,889 16.70070%
15-May-07 15-Jun-07 919,316,175 16.15780%
15-Jun-07 15-Jul-07 889,039,544 16.70070%
15-Jul-07 15-Aug-07 859,760,040 15.67390%
15-Aug-07 15-Sep-07 831,086,589 15.68100%
15-Sep-07 15-Oct-07 803,357,616 16.21550%
15-Oct-07 15-Nov-07 776,542,013 15.69580%
15-Nov-07 15-Dec-07 750,609,701 16.23140%
15-Dec-07 15-Jan-08 725,531,589 15.71170%
15-Jan-08 15-Feb-08 701,279,546 15.72010%
15-Feb-08 15-Mar-08 677,826,364 16.82250%
15-Mar-08 15-Apr-08 655,145,736 15.73770%
15-Apr-08 15-May-08 633,212,216 16.27620%
15-May-08 15-Jun-08 612,001,201 15.75660%
15-Jun-08 15-Jul-08 591,488,896 16.29640%
15-Jul-08 15-Aug-08 571,652,288 15.77680%
15-Aug-08 15-Sep-08 552,469,125 15.78750%
15-Sep-08 15-Oct-08 533,917,886 16.32940%
15-Oct-08 15-Nov-08 515,977,760 15.80990%
15-Nov-08 15-Dec-08 498,628,620 16.35340%
15-Dec-08 15-Jan-09 481,851,002 15.83390%
15-Jan-09 15-Feb-09 465,626,084 15.84650%
15-Feb-09 15-Mar-09 449,935,663 17.57280%
15-Mar-09 15-Apr-09 434,762,137 15.87310%
15-Apr-09 15-May-09 420,088,481 16.42110%
15-May-09 15-Jun-09 405,898,234 15.90170%
15-Jun-09 15-Jul-09 392,175,475 16.45160%
15-Jul-09 15-Aug-09 378,904,806 15.93230%
15-Aug-09 15-Sep-09 366,071,340 15.94840%
15-Sep-09 15-Oct-09 353,660,677 16.50160%
15-Oct-09 15-Nov-09 341,658,893 15.98200%
15-Nov-09 15-Dec-09 330,052,522 16.53010%
Page 11 of 11
15-Dec-09 15-Jan-10 318,828,541 16.00380%
15-Jan-10 15-Feb-10 307,974,356 16.01530%
15-Feb-10 15-Mar-10 297,477,790 17.75820%
15-Mar-10 15-Apr-10 287,827,063 16.03940%
15-Apr-10 15-May-10 277,510,786 16.59160%
15-May-10 15-Jun-10 268,017,944 16.06530%
15-Jun-10 15-Jul-10 258,837,885 16.61930%
15-Jul-10 15-Aug-10 249,960,308 16.09320%
15-Aug-10 15-Sep-10 241,375,252 16.10780%
15-Sep-10 15-Oct-10 233,073,081 16.66480%
15-Oct-10 15-Nov-10 225,044,480 16.19870%
15-Nov-10 15-Dec-10 217,280,438 16.69790%
15-Dec-10 15-Jan-11 209,772,244 16.17190%
15-Jan-11 15-Feb-11 202,511,470 16.18940%
15-Feb-11 15-Mar-11 195,489,968 17.95800%
15-Mar-11 15-Apr-11 188,699,858 16.22630%
15-Apr-11 15-May-11 182,151,999 16.79160%
15-May-11 15-Jun-11 175,877,951 16.26600%
15-Jun-11 15-Jul-11 169,810,531 16.83410%
15-Jul-11 15-Aug-11 163,942,178 16.30860%
15-Aug-11 15-Sep-11 156,760,068 16.33730%
15-Sep-11 15-Oct-11 149,877,344 16.91730%
15-Oct-11 15-Nov-11 143,281,528 16.39890%
15-Nov-11 15-Dec-12 136,960,658 16.98390%
15-Dec-11 15-Jan-12 130,903,273 16.46640%
* All dates subject to adjustment in accordance with Following Business Day
Convention.
EXHIBIT II
ITEM 1115 AGREEMENT
Item 1115 Agreement dated as of February 16, 2006 (this "Agreement"),
between COUNTRYWIDE HOME LOANS, INC., a New York corporation ("CHL"), CWABS,
INC., a Delaware corporation ("CWABS"), CWMBS, Inc., a Delaware corporation
("CWMBS"), CWALT, Inc., a Delaware corporation ("CWALT"), CWHEQ, Inc., a
Delaware corporation ("CWHEQ") and BARCLAYS BANK PLC, as counterparty (the
"Counterparty").
RECITALS
WHEREAS, CWABS, CWMBS, CWALT and CWHEQ each have filed
Registration Statements on Form S-3 (each, a "Registration Statement") with
the Securities and Exchange Commission (the "Commission") for purposes of
offering mortgage backed or asset-backed notes and/or certificates (the
"Securities") through special purpose vehicles (each, an "SPV").
WHEREAS, from time to time, on the closing date (the "Closing
Date") of a transaction pursuant to which Securities are offered (each, a
"Transaction"), the Counterparty and CHL or an underwriter or dealer with
respect to the Transaction, enter into certain derivative agreements (each, a
"Derivative Agreement"), including interest rate caps and interest rate or
currency swaps, for purposes of providing certain yield enhancements that are
assigned to the SPV or the related trustee on behalf of the SPV or a swap or
corridor contract administrator (each, an "Administrator").
NOW, THEREFORE, in consideration of the mutual agreements set
forth herein and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereby agree as follows:
Section 1. Definitions
Company Information: As defined in Section 4(a)(i).
Company Financial Information: As defined in Section 2(a)(ii).
Countrywide Indemnified Party: As defined in Section 4(a).
Counterparty Indemnified Party: As defined in Section 4(b).
Depositor: Means CWABS, CWMBS, CWALT or CWHEQ with respect to the
related Registration Statement for which the entity of the registrant.
GAAP: As defined in Section 3(a)(v).
XXXXX: The Commission's Electronic Data Gathering, Analysis and
Retrieval system.
Exchange Act: The Securities Exchange Act of 1934, as amended and
the rules and regulations promulgated thereunder.
Exchange Act Reports: All Distribution Reports on Form 10-D,
Current Reports on Form 8-K and Annual Reports on Form 10-K that are to be
filed with respect to the related SPV pursuant to the Exchange Act.
Indemnified Party: As defined in Section 4(b).
Master Agreement: The ISDA Master Agreement between the
Counterparty and CHL, or if no such Master Agreement exists, the ISDA Master
Agreement assumed to apply to the Derivative Agreement pursuant to its terms.
Prospectus Supplement: The prospectus supplement prepared in
connection with the public offering and sale of the related Securities.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended
from time to time, and subject to such clarification and interpretation as
have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531
(Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by
the Commission or its staff from time to time.
Securities Act: The Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
Section 2. Information to Be Provided by the Counterparty.
(a) Prior to printing the related Prospectus Supplement,
(i) the Counterparty shall provide to the related Depositor such
information regarding the Counterparty, as a derivative
instrument counterparty, as is reasonably requested by the
related Depositor for the purpose of compliance with Item
1115(a)(1) of Regulation AB. Such information shall include,
at a minimum:
(A) The Counterparty's legal name (and any d/b/a);
(B) the organizational form of the Counterparty;
(C) a description of the general character of the business
of the Counterparty;
(D) a description of any affiliation or relationship
between the Counterparty and any of the following
parties:
(1) CHL (or any other sponsor identified to the
Counterparty by CHL);
(2) the related Depositor (as identified to the
Counterparty by CHL);
2
(3) the SPV;
(4) Countrywide Home Loans Servicing LP (or any
other servicer or master servicer identified to
the Counterparty by CHL);
(5) The Bank of New York (or any other trustee
identified to the Counterparty by CHL);
(6) any originator identified to the Counterparty by
CHL;
(7) any enhancement or support provider identified
to the Counterparty by CHL; and
(8) any other material transaction party identified
to the Counterparty by CHL.
(ii) if requested by the related Depositor for the purpose of
compliance with Item 1115(b) with respect to a Transaction,
the Counterparty shall:
(A) provide the financial data required by Item 1115(b)(1)
or (b)(2) of Regulation AB (as specified by the
related Depositor to the Counterparty) with respect to
the Counterparty (or any entity that consolidates the
Counterparty) and any affiliated entities providing
derivative instruments to the SPV (the "Company
Financial Information"), in a form appropriate for use
in the Prospectus Supplement and in an
XXXXX-compatible form (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 its accountants to issue their
consent to the filing or the incorporation by
reference of such financial statements in the
Registration Statement.
(b) Following the Closing Date with respect to a Transaction,
(i) no later than the 25th calendar day of each month, the
Counterparty shall (1) notify the related Depositor in
writing of any affiliations or relationships that develop
following the Closing Date between the Counterparty and any
of the parties specified in Section 2(a)(i)(E) (and any
other parties identified in writing by the related
Depositor) and (2) provide to the related Depositor a
description of such proceedings, affiliations or
relationships as described in Section 2(b)(i)(1);
(ii) if the Counterparty provided Company Financial Information
to the related Depositor for the Prospectus Supplement,
within 5 Business Days of the release of any updated
financial data, the Counterparty shall (1)
3
provide current Company Financial Information as required
under Item 1115(b) of Regulation AB to the related Depositor
in an XXXXX-compatible form (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
its accountants to issue their consent to filing or
incorporation by reference of such financial statements in
the Exchange Act Reports of the SPV; and
(iii) if the related Depositor requests Company Financial
Information from the Counterparty, for the purpose of
compliance with Item 1115(b) of Regulation AB following the
Closing Date, the Counterparty shall upon five Business Days
written notice either (A), (1) provide current Company
Financial Information as required under Item 1115(b) of
Regulation AB to the related Depositor in an
XXXXX-compatible form (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 its accountants to
issue their consent to filing or incorporation by reference
of such financial statements in the Exchange Act Reports of
the SPV and (3) within 5 Business Days of the release of any
updated financial data, provide current Company Financial
Information as required under Item 1115(b) of Regulation AB
to the related Depositor in an XXXXX-compatible form and if
applicable, cause its accountants to issue their consent to
filing or incorporation by reference of such financial
statements in the Exchange Act Reports of the SPV or (B)
assign the Derivative Agreement as provided below.
Section 3. Representations and Warranties and Covenants of the Counterparty.
(a) The Counterparty represents and warrants to the related Depositor,
as of the date on which information is first provided to the
related Depositor under Section 2(a)(ii), Section 2(b)(ii) or
Section 2(b)(iii)(A), that, except as disclosed in writing the
related Depositor prior to such date:
(i) The Counterparty or the entity that consolidates the
Counterparty is required to file reports with the Commission
pursuant to section 13(a) or 15(d) of the Exchange Act.
(ii) The Counterparty or the entity that consolidates the
Counterparty 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, or entity that
consolidates the Counterparty, include (or properly
incorporate by reference) the financial statements of the
Counterparty.
4
(iv) The accountants who certify the financial statements and
supporting schedules included in the Company Financial
Information (if applicable) are independent registered
public accountants as required by the Securities Act.
(v) If applicable, the financial statements included in the
Company Financial Information present fairly the
consolidated financial position of the Counterparty (or the
entity that consolidates the Counterparty) and its
consolidated subsidiaries as at the dates indicated and the
consolidated results of their operations and cash flows for
the periods specified; except as otherwise stated in the
Company Financial Information, said financial statements
have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent
basis; and the supporting schedules included in the Company
Financial Information present fairly in accordance with GAAP
the information required to be stated therein. The selected
financial data and summary financial information included in
the Company Financial Information present fairly the
information shown therein and have been compiled on a basis
consistent with that of the audited financial statements of
the Counterparty.
(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 requirements of Item 1115(b) of Regulation AB (in
the case of the Company Financial Information) and, did not
and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated
therein or necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
(b) If the Counterparty has provided Company Financial Information
that is incorporated by reference into the Registration Statement
of the related Depositor, the Counterparty, so long as the related
Depositor is required to file Exchange Act Reports with respect to
the SPV, will file promptly all documents required to be filed
with the Commission pursuant to Section 13 or 14 of the 1934 Act.
(c) If at any time the representations and warranties set forth in
3(a)(i) through (iii) are no longer true and correct, the
Counterparty shall provide notice to the related Depositor, and if
any Company Financial Information is required to be included in
the Registration Statement, or the Exchange Act Reports of the
SPV, will provide to the related Depositor such Company Financial
Information in XXXXX-compatible format no later than the 25th
calendar day of the month in which any of the representations or
warranties in Section 3(a)(i) through (iii) ceased to be correct.
(d) The Counterparty agrees that the terms of this Agreement shall be
incorporated by reference into any Derivative Agreement so that
each SPV who is a beneficiary of a Derivative Agreement shall be
an express third party beneficiary of this Agreement.
Section 4. Indemnification; Remedies
(a) The Counterparty shall indemnify CHL and the related Depositor,
each person responsible for execution of a certification pursuant
to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act; each
broker dealer acting as underwriter, each person who controls any
of such parties (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act); and the
respective present and former directors, officers, employees and
agents of each of the foregoing (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 (collectively, the "Company Information"), or
(B) the omission or alleged omission to state in the Company
Information a material fact required to be stated in the
Company Information or necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) any failure by the Counterparty to deliver any information,
certification, accountants' consent or other material or to
assign the Derivative Agreement when and as required under
Section 2; 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, to the extent that such breach is
not cured by the Closing Date, or any breach by the
Counterparty of a representation or warranty pursuant to
Section 3 to the extent made as of a date subsequent to the
Closing Date.
In the case of any failure of performance described in clause
(a)(ii) of this Section, the Counterparty shall promptly reimburse
the related Depositor and 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 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) The Depositor shall indemnify the Counterparty, each of its
officers and directors and each person who controls the
Counterparty (within the meaning of Section 15
6
of the Securities Act and Section 20 of the Exchange Act) (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 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 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.
(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
7
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. 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, which consent shall
not be unreasonably withheld.
(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) Any failure by the Counterparty to deliver any information,
report, accountants' consent or other material when and in
any case only as required under Section 2 or any breach by
the Counterparty of a representation or warranty set forth
in Section 3 and made as of a date prior to the Closing
Date, to the extent that such breach is not cured by the
Closing Date (or in the case of information needed for
purposes of printing the Prospectus Supplement, the date of
printing of the Prospectus Supplement), or any breach by the
Counterparty of a representation or warranty pursuant to
Section 3 to the extent made as of a date subsequent to such
closing date, shall, except as provided in clause (ii) of
this paragraph, immediately and automatically, without
notice or grace period, constitute an Additional Termination
Event (as defined in the Master Agreement) with the
Counterparty as the sole Affected Party (as defined in the
Master Agreement) under the Derivative Agreement. Following
such termination, a termination payment (if any) shall be
payable by the applicable party as determined by the
application of Section 6(e)(ii) of the Master Agreement,
with Market Quotation and Second Method being the applicable
method for determining the termination payment
(notwithstanding anything in the Derivative Agreement to the
contrary).
(ii) If the Counterparty has failed to deliver any information,
report, or accountants' consent when and as required under
Section 2, which continues unremedied for the lesser of ten
calendar days after the date on which such information,
report, or accountants' consent was required to be delivered
or such period in which the applicable Exchange Act Report
for which such information is required can be timely filed
(without taking into account any extensions permitted to be
filed), and the Counterparty has not, at its own cost,
within the period in which the applicable Exchange Act
Report for which such information is required can be timely
filed caused another entity (which meets any 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
8
Depositors substantially in the form of this Agreement, (ii)
has agreed to deliver any information, report, certification
or accountants' consent when and as required under Section 2
hereof and (iii) is approved by the Depositor (which
approval shall not be unreasonably withheld) and any rating
agency, if applicable, on terms substantially similar to the
Derivative Agreement, then an Additional Termination Event
(as defined in the Master Agreement) shall have occurred
with the Counterparty as the sole Affected Party. Following
such termination, a termination payment (if any) shall be
payable by the applicable party as determined by the
application of Section 6(e)(ii) of the Master Agreement,
with Market Quotation and Second Method being the applicable
method for determining the termination payment
(notwithstanding anything in the Derivative Agreement to the
contrary).
(iii) In the event that the Counterparty or the SPV has found a
replacement entity in accordance with Section 2(b)(ii), the
Counterparty shall promptly reimburse the SPV for all
reasonable incidental expenses incurred by the SPV, as such
are incurred, in connection with the termination of the
Counterparty as counterparty and the entry into a new
Derivative Instrument. The provisions of this paragraph
shall not limit whatever rights the SPV may have under other
provisions of this Agreement or otherwise, whether in equity
or at law, such as an action for damages, specific
performance or injunctive relief.
Section 5. Miscellaneous.
(a) Construction. Throughout this Agreement, as the context requires,
(a) the singular tense and number includes the plural, and the
plural tense and number includes the singular; (b) the past tense
includes the present, and the present tense includes the past; and
(c) references to parties, sections, schedules, and exhibits mean
the parties, sections, schedules, and exhibits of and to this
Agreement. The section headings in this Agreement are inserted
only as a matter of convenience, and in no way define, limit,
extend, or interpret the scope of this Agreement or of any
particular section.
(b) Assignment. None of the parties may assign their rights under this
Agreement without the prior written consent of the other parties.
Subject to the foregoing, this Agreement shall be binding on and
inure to the benefit of the parties and their respective
successors and permitted assigns.
(c) No Third-Party Benefits Except as Specified. None of the
provisions of this Agreement are intended to benefit, or to be
enforceable by, any third-party beneficiaries except the related
SPV and any trustee of an SPV or any Administrator.
9
(d) Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York
without regard to the conflict of laws principles thereof.
(e) Amendment and Waiver. This Agreement may not be modified or
amended except by an instrument in writing signed by the parties
hereto. No waiver of any provision of this Agreement or of any
rights or obligations of any party under this Agreement shall be
effective unless in writing and signed by the party or parties
waiving compliance, and shall be effective only in the specific
instance and for the specific purpose stated in that writing.
(f) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
(g) Additional Documents. Each party hereto agrees to execute any and
all further documents and writings and to perform such other
actions which may be or become reasonably necessary or expedient
to effectuate and carry out this Agreement.
(h) Severability. Any provision hereof which is prohibited or
unenforceable shall be ineffective only to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions hereof.
(i) Integration. This Agreement contains the entire understanding of
the parties with respect to the subject matter hereof. There are
no restrictions, agreements, promises, representations,
warranties, covenants or undertakings with respect to the subject
matter hereof other than those expressly set forth or referred to
herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to its subject
matter.
10
IN WITNESS WHEREOF, the parties hereto have caused their names to
be signed hereto by their respective officers thereunto duly authorized as of
the day and year first above written.
CWABS, INC.
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Name:
Title:
CWMBS, INC.
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Name:
Title:
CWALT, INC.
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Name:
Title:
CWHEQ, INC.
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Name:
Title:
COUNTRYWIDE HOME LOANS, INC.
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Name:
Title:
11
BARCLAYS BANK PLC
By: /s/ Xxxxxxx Xxxx
-----------------------------------------
Name: Xxxxxxx Xxxx
Title: Managing Director
12