The Bear Confirmation
EXHIBIT
99.3
The
Bear
Confirmation
BEAR
▇▇▇▇▇▇▇
BEAR
▇▇▇▇▇▇▇ FINANCIAL PRODUCTS INC.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
|
DATE:
|
February
26, 2007
|
|
TO:
|
Countrywide
Home Loans, Inc.
|
|
ATTENTION:
|
▇▇.
▇▇▇▇ ▇▇▇▇▇
|
|
TELEPHONE:
|
▇-▇▇▇-▇▇▇-▇▇▇▇
|
|
FACSIMILE:
|
▇-▇▇▇-▇▇▇-▇▇▇▇ FAX:
▇-▇▇▇-▇▇▇-▇▇▇▇
|
|
FROM:
|
Derivatives
Documentation
|
|
TELEPHONE:
|
▇▇▇-▇▇▇-▇▇▇▇
|
|
FACSIMILE:
|
▇▇▇-▇▇▇-▇▇▇▇
|
This
Confirmation and Agreement is amended as of February 26, 2007 and supersedes
all
previous Confirmations and Agreements regarding this
Transaction.
The
purpose of this letter agreement (“Agreement”) is to confirm the terms and
conditions of the Transaction entered into on the Trade Date specified below
(the “Transaction”) between Bear ▇▇▇▇▇▇▇ Financial Products Inc. ("BSFP") and
Countrywide Home Loans, Inc., ("Counterparty"). This Agreement, which
evidences a complete and binding agreement between BSFP and Counterparty to
enter into the Transaction on the terms set forth below, constitutes a
"Confirmation" as referred to in the "ISDA Form Master Agreement" (as defined
below), as well as a “Schedule” as referred to in the ISDA Form Master
Agreement.
|
1.
|
This
Agreement is subject to and incorporates the 2000 ISDA Definitions
(the “Definitions”), as published by the International Swaps and
Derivatives Association, Inc. (“ISDA”). BSFP and Counterparty
have agreed to enter into this Agreement in lieu of negotiating a
Schedule
to the 1992 ISDA Master Agreement (Multicurrency—Cross Border) form (the
"ISDA Form Master Agreement"). An ISDA Form Master Agreement shall
be
deemed to have been executed by BSFP and Counterparty on the date
we
entered into the Transaction. All provisions contained in, or incorporated
by reference to, the ISDA Form Master Agreement shall govern the
Transaction referenced in this Confirmation except as expressly modified
herein. In the event of any inconsistency between the provisions
of this
Agreement and the Definitions or the ISDA Form Master Agreement,
this
Agreement shall prevail for purposes of the
Transaction.
|
Reference
Number:
FXNEC9158 -
Amended
Countrywide
Home Loans, Inc.
February
26,
2007
Page of
2 of
12
|
2.
|
The
terms of the particular Transaction to which this Confirmation relates
are
as follows:
|
|
Type
of Transaction:
|
Rate
Cap
|
|
Notional
Amount:
|
With
respect to any Calculation Period, the amount set forth for such
period in
the Schedule of Notional Amounts attached
hereto.
|
|
Trade
Date:
|
February
1, 2007
|
|
Effective
Date:
|
February
28, 2007
|
|
Termination
Date:
|
^July
25, 2012
|
|
Fixed
Amount (Premium):
|
|
|
Fixed
Rate Payer:
|
Counterparty
|
|
Fixed
Rate Payer
|
|
|
Payment
Date:
|
February
5, 2007
|
|
Fixed
Amount:
|
USD
26,500
|
|
Floating
Amounts:
|
|
Floating
Rate Payer:
|
BSFP
|
|
Cap
Rate:
|
5.80000%
|
|
Floating
Rate Payer
|
|
|
Period
End Dates:
|
The
25th calendar day of each month during the Term of this Transaction,
commencing March 25, 2007 and ending on the Termination Date, with
No
Adjustment.
|
|
Floating
Rate Payer
|
|
|
Payment
Dates:
|
Early
Payment shall be applicable. One Business Day preceding each Floating
Rate
Payer Period End Date.
|
|
Floating
Rate Option:
|
USD-LIBOR-BBA,
provided, however, that if the Floating Rate determined from such
Floating
Rate Option for any Calculation Period is greater than 9.30000% then
the
Floating Rate for such Calculation Period shall be deemed to be
9.30000%.
|
Reference
Number:
FXNEC9158 -
Amended
Countrywide
Home Loans, Inc.
February
26,
2007
Page of
3 of 12
|
Designated
Maturity:
|
One
month
|
|
Floating
Rate Day
|
|
|
Count
Fraction:
|
30/360
|
|
Reset
Dates:
|
The
first day of each Calculation
Period.
|
|
Compounding:
|
Inapplicable
|
|
Business
Days for payments:
|
|
Business
Day Convention:
|
Modified
Following
|
|
Additional
Amount:
|
In
connection with amending this Transaction USD 1,000 is payable by
BSFP to
Counterparty on February 28,
2007.
|
|
3.
|
Additional Provisions:
|
Each
party hereto is hereby advised and acknowledges that the other party
has
engaged in (or refrained from engaging in) substantial financial
transactions and has taken (or refrained from taking) other material
actions in reliance upon the entry by the parties into the Transaction
being entered into on the terms and conditions set forth herein and
in the
Confirmation relating to such Transaction, as applicable. This paragraph
shall be deemed repeated on the trade date of each
Transaction.
|
|
4.
|
Provisions
Deemed Incorporated in a Schedule to the ISDA Form Master
Agreement:
|
|
1)
|
The
parties agree that subparagraph (ii) of Section 2(c) of the ISDA
Form
Master Agreement will apply to any
Transaction.
|
|
2)
|
Termination
Provisions. For purposes of the ISDA Form Master
Agreement:
|
(a) "Specified
Entity" is not applicable to BSFP or Counterparty for any purpose.
(b) "Specified
Transaction" is not applicable to BSFP or Counterparty for any purpose, and,
accordingly, Section 5(a)(v) of the ISDA Form Master Agreement shall not apply
to BSFP or Counterparty.
(c) The
"Cross Default" provisions of Section 5(a)(vi) of the ISDA Form Master Agreement
will not apply to BSFP or to Counterparty.
Reference
Number:
FXNEC9158 -
Amended
Countrywide
Home Loans, Inc.
February
26,
2007
Page of
4 of 12
(d) The
"Credit Event Upon Merger" provisions of Section 5(b)(iv) of the ISDA Form
Master Agreement will not apply to BSFP or to
Counterparty.
(e) The
"Automatic Early Termination" provision of Section 6(a) of the ISDA Form Master
Agreement will not apply to BSFP or to Counterparty.
(f) Payments
on Early Termination. For the purpose of Section 6(e) of the ISDA
Form Master Agreement:
|
|
(i)
|
Market
Quotation will apply.
|
|
|
(ii)
|
The
Second Method will apply.
|
(g) "Termination
Currency" means United States Dollars.
|
3)
|
Tax
Representations. Not
applicable
|
|
4)
|
Limitation
on Events of Default. Notwithstanding the terms of Sections 5 and 6
of the ISDA Form Master Agreement, if at any time and so long as
the
Counterparty has satisfied in full all its payment obligations under
Section 2(a)(i) of the ISDA Form Master Agreement and has at the
time no
future payment obligations, whether absolute or contingent, under
such
Section, then unless BSFP is required pursuant to appropriate proceedings
to return to the Counterparty or otherwise returns to the Counterparty
upon demand of the Counterparty any portion of any such payment,
(a) the
occurrence of an event described in Section 5(a) of the ISDA Form
Master
Agreement with respect to the Counterparty shall not constitute an
Event
of Default or Potential Event of Default with respect to the Counterparty
as Defaulting Party and (b) BSFP shall be entitled to designate an
Early
Termination Date pursuant to Section 6 of the ISDA Form Master Agreement
only as a result of the occurrence of a Termination Event set forth
in
either Section 5(b)(i) or 5(b)(ii) of the ISDA Form Master Agreement
with
respect to BSFP as the Affected Party or Section 5(b)(iii) of the
ISDA
Form Master Agreement with respect to BSFP as the Burdened
Party.
|
|
5)
|
Documents
to be Delivered. For the purpose of Section 4(a) of the ISDA Form
Master Agreement:
|
|
(1)
|
Tax
forms, documents, or certificates to be delivered
are:
|
Reference
Number:
FXNEC9158 -
Amended
Countrywide
Home Loans, Inc.
February
26,
2007
Page of
5 of 12
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
|
BSFP
and
the
Counterparty
|
Any
document required or reasonably requested to allow the other party
to make
payments under this Agreement without any deduction or withholding
for or
on the account of any Tax or with such deduction or withholding at
a
reduced rate
|
Promptly
after the earlier of (i) reasonable demand by either party or (ii)
learning that such form or document is
required
|
|
(2)
|
Other
documents to be delivered are:
|
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
Covered
by Section 3(d) Representation
|
|
BSFP
and
the
Counterparty
|
Any
documents required by the receiving party to evidence the authority
of the
delivering party or its Credit Support Provider, if any, for it 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 or its Credit Support Provider to perform its obligations
under this Agreement, such Confirmation and/or Credit Support Document,
as
the case may be
|
Upon
the execution and delivery of this Agreement and such
Confirmation
|
Yes
|
Reference
Number:
FXNEC9158 -
Amended
Countrywide
Home Loans, Inc.
February
26,
2007
Page of
6 of 12
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
Covered
by Section 3(d) Representation
|
|
BSFP
and
the
Counterparty
|
A
certificate of an authorized officer of the party, as to the incumbency
and authority of the respective officers of the party signing this
Agreement, any relevant Credit Support Document, or
any Confirmation, as the case may be
|
Upon
the execution and delivery of this Agreement and such
Confirmation
|
Yes
|
|
6)
|
Miscellaneous.
Miscellaneous
|
|
(a)
|
Address
for Notices: For the purposes of Section 12(a) of the ISDA
Form Master Agreement:
|
Address
for notices or communications to BSFP:
|
|
Address:
|
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇
|
| Attention: | DPC Manager |
| Facsimile: | (▇▇▇) ▇▇▇-▇▇▇▇ |
| with a copy to: |
| Address: | One Metrotech Center North, Brooklyn, New York 11201 |
| Attention: | Derivative Operations - 7th Floor |
| Facsimile: | (▇▇▇) ▇▇▇-▇▇▇▇ |
| (For all purposes) |
Address for notices or communications to the Counterparty:
|
|
Address:
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
|
Mail
Stop
CH-143
Calabasas,
CA 91302
|
|
Attention:
|
▇▇.
▇▇▇▇ ▇▇▇▇▇
|
|
|
Facsimile:
|
▇▇▇-▇▇▇-▇▇▇▇
|
|
|
Phone:
|
▇▇▇-▇▇▇-▇▇▇▇
|
Reference
Number:
FXNEC9158 -
Amended
Countrywide
Home Loans, Inc.
February
26,
2007
Page of 7
of 12
|
(b)
|
Process
Agent. For the purpose of Section 13(c) of the ISDA Form Master
Agreement:
|
|
BSFP
appoints as its
|
|
|
|
Process
Agent:
|
Not
Applicable
|
|
The
Counterparty appoints as its
|
|
|
Process
Agent:
|
Not
Applicable
|
|
(c)
|
Offices.
The provisions of Section 10(a) of the ISDA Form Master Agreement
will not
apply to this Agreement; neither BSFP nor the Counterparty have any
Offices other than as set forth in the Notices Section and BSFP agrees
that, for purposes of Section 6(b) of the ISDA Form Master Agreement,
it
shall not in future have any Office other than one in the United
States.
|
|
(d)
|
Multibranch
Party. For the purpose of Section 10(c) of the ISDA Form
Master Agreement:
|
BSFP
is
not a Multibranch Party.
The
Counterparty is not a Multibranch Party.
|
(e)
|
Calculation
Agent. The Calculation Agent is BSFP; provided, however, that
if an Event of Default occurs with respect to BSFP, then 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 BSFP or the
Counterparty.
|
|
(g)
|
Credit
Support Provider.
|
BSFP: Not
Applicable
|
The
Counterparty:
|
Not
Applicable
|
|
(h)
|
Governing
Law. The parties to this Agreement hereby agree that the law of
the State of New York shall govern their rights and duties in
whole.
|
|
(i)
|
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 continues 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.
|
Reference
Number:
FXNEC9158 -
Amended
Countrywide
Home Loans, Inc.
February
26,
2007
Page of
8 of 12
The
parties shall endeavor 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.
|
(j)
|
Consent
to Recording. Each party hereto consents to 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.
|
|
(k)
|
Waiver
of Jury Trial. Each party waives any right it may have to a
trial by jury in respect of any Proceedings relating to this Agreement
or
any Credit Support Document.
|
|
(l)
|
BSFP
will not unreasonably withhold or delay its consent to an assignment
of
this Agreement to any other third
party.
|
|
(m)
|
Set-off. The
provisions for Set-off set forth in Section 6(e) of the ISDA Form
Master
Agreement shall not apply for purposes of this
Transaction.
|
|
7)
|
"Affiliate"
will have the meaning specified in Section 14 of the ISDA Form Master
Agreement, provided that BSFP shall not be deemed to have any Affiliates
for purposes of this Agreement, including for purposes of Section
6(b)(ii).
|
|
8)
|
Section
3 of the ISDA Form Master Agreement is hereby amended by adding at
the end
thereof the following subsection
(g):
|
"(g) Relationship
Between Parties.
Each
party represents to the other party on each date when it enters into a
Transaction that:--
(1)
Nonreliance. It is not relying on any statement or
representation of the other party regarding the Transaction (whether written
or
oral), other than the representations expressly made in this Agreement or the
Confirmation in respect of that Transaction.
(2)
Evaluation and Understanding.
(i) It
has the capacity to evaluate (internally or through independent professional
advice) the Transaction and has made its own decision to enter into the
Transaction; and
Reference
Number:
FXNEC9158 -
Amended
Countrywide
Home Loans, Inc.
February
26,
2007
Page of
9 of 12
(ii) It
understands the terms, conditions and risks of the Transaction and is willing
and able to accept those terms and conditions and to assume those risks,
financially and otherwise.
(3)
Purpose. It is entering into the Transaction for the purposes of
managing its borrowings or investments, hedging its underlying assets or
liabilities or in connection with a line of business.
(4)
Principal. It is entering into the Transaction as principal, and not
as agent or in any other capacity, fiduciary or otherwise.”
NEITHER
THE BEAR ▇▇▇▇▇▇▇ COMPANIES INC. NOR ANY SUBSIDIARY OR AFFILIATE OF THE BEAR
▇▇▇▇▇▇▇ COMPANIES INC. OTHER THAN BSFP IS AN OBLIGOR OR A CREDIT SUPPORT
PROVIDER ON THIS AGREEMENT.
|
5.
|
Account
Details and
|
|
Settlement
Information:
|
Payments
to BSFP:
|
Citibank,
N.A., New York
ABA
Number: ▇▇▇-▇▇▇▇-▇▇, for the account of
Bear,
▇▇▇▇▇▇▇ Securities Corp.
Account
Number: 0925-3186, for further credit to
Bear
▇▇▇▇▇▇▇ Financial Products Inc.
Sub-account
Number: 102-04654-1-3
Attention:
Derivatives Department
Payments
to Counterparty:
Please
provide
This
Agreement may be executed in several counterparts, each of which shall be deemed
an original but all of which together shall constitute one and the same
instrument.
Counterparty
hereby agrees to check this Confirmation and to confirm that the foregoing
correctly sets forth the terms of the Transaction by signing in the space
provided below and returning to BSFP a facsimile of the fully-executed
Confirmation to ▇▇▇-▇▇▇-▇▇▇▇. For inquiries regarding U.S.
Transactions, please contact Derivatives Documentation by
telephone at ▇▇▇-▇▇▇-▇▇▇▇. For all other inquiries
please contact Derivatives Documentation by telephone at
▇▇▇-▇-▇▇▇-▇▇▇▇. Originals will be provided for your execution
upon your request.
Reference
Number:
FXNEC9158 -
Amended
Countrywide
Home Loans, Inc.
February
26,
2007
Page of
10 of 12
We
are
very pleased to have executed this Transaction with you and we look forward
to
completing other transactions with you in the near future.
Very
truly yours,
BEAR
▇▇▇▇▇▇▇ FINANCIAL PRODUCTS INC.
|
By:
|
_______________________________
|
Name:
Title:
Counterparty,
acting through its duly authorized signatory, ▇▇▇▇▇▇ agrees to, accepts and
confirms the terms of the foregoing as of the Trade Date.
COUNTRYWIDE
HOME LOANS, INC.
|
By:
|
_______________________________
|
As
authorized agent or officer for Countrywide Home Loans, Inc.
Name:
Title:
Reference
Number:
FXNEC9158 -
Amended
Countrywide
Home Loans, Inc.
February
26,
2007
Page of
11 of 12
SCHEDULE
OF NOTIONAL AMOUNTS
|
Notional
Amount
|
||
|
From
and including
|
To
but excluding
|
(USD)
|
|
Effective
Date
|
25-Mar-2007
|
10,000,000.00
|
|
25-Mar-2007
|
25-Apr-2007
|
^9,795,643.94
|
|
25-Apr-2007
|
25-May-2007
|
9,567,856.67
|
|
25-May-2007
|
25-Jun-2007
|
9,316,872.24
|
|
25-Jun-2007
|
25-Jul-2007
|
9,042,956.42
|
|
25-Jul-2007
|
25-Aug-2007
|
8,746,421.52
|
|
25-Aug-2007
|
25-Sep-2007
|
8,427,595.42
|
|
25-Sep-2007
|
25-Oct-2007
|
8,258,836.61
|
|
25-Oct-2007
|
25-Nov-2007
|
8,068,533.67
|
|
25-Nov-2007
|
25-Dec-2007
|
7,857,104.68
|
|
25-Dec-2007
|
25-Jan-2008
|
7,625,060.41
|
|
25-Jan-2008
|
25-Feb-2008
|
7,396,681.29
|
|
25-Feb-2008
|
25-Mar-2008
|
7,172,095.36
|
|
25-Mar-2008
|
25-Apr-2008
|
6,951,270.81
|
|
25-Apr-2008
|
25-May-2008
|
6,734,176.14
|
|
25-May-2008
|
25-Jun-2008
|
6,520,780.08
|
|
25-Jun-2008
|
25-Jul-2008
|
6,311,051.66
|
|
25-Jul-2008
|
25-Aug-2008
|
6,104,960.14
|
|
25-Aug-2008
|
25-Sep-2008
|
5,902,475.05
|
|
25-Sep-2008
|
25-Oct-2008
|
5,703,566.19
|
|
25-Oct-2008
|
25-Nov-2008
|
5,508,203.58
|
|
25-Nov-2008
|
25-Dec-2008
|
5,316,357.53
|
|
25-Dec-2008
|
25-Jan-2009
|
5,127,998.58
|
|
25-Jan-2009
|
25-Feb-2009
|
4,943,097.51
|
|
25-Feb-2009
|
25-Mar-2009
|
4,761,625.37
|
|
25-Mar-2009
|
25-Apr-2009
|
4,583,553.44
|
|
25-Apr-2009
|
25-May-2009
|
4,408,853.24
|
|
25-May-2009
|
25-Jun-2009
|
4,237,496.53
|
|
25-Jun-2009
|
25-Jul-2009
|
4,069,455.32
|
|
25-Jul-2009
|
25-Aug-2009
|
3,904,701.83
|
|
25-Aug-2009
|
25-Sep-2009
|
3,743,208.55
|
|
25-Sep-2009
|
25-Oct-2009
|
3,584,948.17
|
Reference
Number:
FXNEC9158 -
Amended
Countrywide
Home Loans, Inc.
February
26,
2007
Page of
12 of 12
|
25-Oct-2009
|
25-Nov-2009
|
3,429,893.63
|
|
25-Nov-2009
|
25-Dec-2009
|
3,278,018.08
|
|
25-Dec-2009
|
25-Jan-2010
|
3,129,294.92
|
|
25-Jan-2010
|
25-Feb-2010
|
2,983,697.75
|
|
25-Feb-2010
|
25-Mar-2010
|
2,841,200.41
|
|
25-Mar-2010
|
25-Apr-2010
|
2,701,776.94
|
|
25-Apr-2010
|
25-May-2010
|
2,565,401.63
|
|
25-May-2010
|
25-Jun-2010
|
2,432,048.97
|
|
25-Jun-2010
|
25-Jul-2010
|
2,301,693.65
|
|
25-Jul-2010
|
25-Aug-2010
|
2,174,310.59
|
|
25-Aug-2010
|
25-Sep-2010
|
2,049,874.92
|
|
25-Sep-2010
|
25-Oct-2010
|
1,928,361.99
|
|
25-Oct-2010
|
25-Nov-2010
|
1,809,747.34
|
|
25-Nov-2010
|
25-Dec-2010
|
1,694,006.72
|
|
25-Dec-2010
|
25-Jan-2011
|
1,581,116.08
|
|
25-Jan-2011
|
25-Feb-2011
|
1,471,051.60
|
|
25-Feb-2011
|
25-Mar-2011
|
1,363,789.63
|
|
25-Mar-2011
|
25-Apr-2011
|
1,259,306.73
|
|
25-Apr-2011
|
25-May-2011
|
1,157,579.65
|
|
25-May-2011
|
25-Jun-2011
|
1,058,585.37
|
|
25-Jun-2011
|
25-Jul-2011
|
962,301.01
|
|
25-Jul-2011
|
25-Aug-2011
|
868,703.93
|
|
25-Aug-2011
|
25-Sep-2011
|
777,771.66
|
|
25-Sep-2011
|
25-Oct-2011
|
689,481.92
|
|
25-Oct-2011
|
25-Nov-2011
|
603,812.62
|
|
25-Nov-2011
|
25-Dec-2011
|
520,741.87
|
|
25-Dec-2011
|
25-Jan-2012
|
440,247.93
|
|
25-Jan-2012
|
25-Feb-2012
|
362,309.28
|
|
25-Feb-2012
|
25-Mar-2012
|
286,791.42
|
|
25-Mar-2012
|
25-Apr-2012
|
222,577.35
|
|
25-Apr-2012
|
25-May-2012
|
160,822.46
|
|
25-May-2012
|
25-Jun-2012
|
101,505.92
|
|
25-Jun-2012
|
^Termination
Date
|
44,607.07
|