ISDA® International Swaps and Derivatives Association, Inc. NOVATION AGREEMENT dated as of June 23, 2006 among:
International
Swaps and Derivatives Association, Inc.
dated
as
of June 23, 2006 among:
Barclays
Bank plc (“Remaining
Party”),
Countrywide
Home Loans, Inc. (“Transferor”)
AND
The
Bank
of New York, not in its individual capacity, but solely as Swap Contract
Administrator (the “Swap Contract Administrator”) for GSC Capital Corp. Mortgage
Trust 2006-2, pursuant to a Swap Contract Administration Agreement dated as
of
June 23, 2006, among the Swap Contract Administrator, The Bank of New York,
not
in its individual or corporate capacity but solely as Indenture Trustee under
the Indenture referred to below (in such capacity, the “Indenture
Trustee”),
and
Transferor (the “Swap
Contract Administration Agreement”)
(“Transferee”)
Transferor
and Remaining Party have entered into a Transaction (the “Old
Transaction”),
evidenced by a Confirmation (an “Old
Confirmation”)
attached hereto as Exhibit I, subject to a 1992 ISDA Master Agreement (as
defined below) dated as of May 17, 1996 (the “Old
Agreement”).
Remaining
Party and Transferee have entered into an ISDA Master Agreement dated as of
June
23, 2006 (the “New
Agreement”).
With
effect from and including June 23, 2006 (the “Novation Date”),
Transferor wishes to transfer by novation to Transferee, and Transferee wishes
to accept the transfer by novation of, all the rights, liabilities, duties
and
obligations of Transferor under and in respect of the Old Transaction, with
the
effect that Remaining Party and Transferee enter into a new transaction (the
“New
Transaction”)
between them having terms identical to those of the Old Transaction, as more
particularly described below, but with the modifications provided for herein.
Remaining
Party wishes to accept Transferee as its sole counterparty with respect to
the
New Transaction.
Transferor
and Remaining Party wish to have released and discharged, as a result and to
the
extent of the transfer described above, their respective obligations under
and
in respect of the Old Transaction.
Accordingly,
the parties agree as follows: ---
1. Definitions.
Terms
defined in the ISDA Master Agreement (Multicurrency-Cross Border) as published
in 1992 by the International Swaps and Derivatives Association, Inc., (the
“1992
ISDA Master Agreement”)
are
used herein as so defined, unless otherwise provided herein.
2. Transfer,
Release, Discharge and Undertakings.
Reference
Numbers: 1254100B - Novation Agreement
The
Bank
of New York, not in its individual capacity, but solely as Swap Contract
Administrator
under the Swap Contract Administration Agreement
June
23, 2006
With
effect from and including the Novation Date and in consideration of the mutual
representations, warranties and covenants contained in this Novation Agreement
and other good and valuable consideration (the receipt and sufficiency of which
are hereby acknowledged by each of the parties):
(a)
Remaining
Party and Transferor are each released and discharged from further obligations
to each other with respect to the Old Transaction and their respective rights
against each other thereunder are cancelled, provided that such release and
discharge shall not affect any rights, liabilities or obligations of Remaining
Party or Transferor with respect to payments or other obligations due and
payable or due to be performed on or prior to the Novation Date, and all such
payments and obligations shall be paid or performed by Remaining Party or
Transferor in accordance with the terms of the Old Transaction; provided
further, for the avoidance of doubt, Transferee shall not be liable with respect
to payments or other obligations due and payable or due to be performed under
the Old Transaction on or prior to the Novation Date;
(b) in
respect of the New Transaction, Transferee and Remaining Party each undertakes
liabilities and obligations towards the other and acquires rights against each
other identical in their terms to the Old Transaction (and, for the avoidance
of
doubt, as if Transferee were Transferor and with Remaining Party remaining
Remaining Party, save for any rights, liabilities or obligations of Remaining
Party or Transferor with respect to payments or other obligations due and
payable or due to be performed on or prior to the Novation Date);
(c)
the
New
Transaction shall be governed by and form part of the New Agreement and the
relevant Old Confirmation (which, in conjunction and as deemed modified to
be
consistent with this Novation Agreement, shall be deemed to be a Confirmation
between Remaining Party and Transferee (the “New Confirmation”)); and
(d)
it
is
expressly understood and agreed by the Assignor and Remaining Party as follows:
(a) The Bank of New York (“BNY”) is entering into this Novation Agreement solely
in its capacity as Swap Contract Administrator under the Swap Contract
Administration Agreement; and (b) in no case shall BNY (or any person acting
as
successor Swap Contract Administrator under the Swap Contract Administration
Agreement) be personally liable for or on account of any of the statements,
representations, warranties, covenants or obligations stated to be those of
Assignee under the terms of the Assigned Transaction, all such liability, if
any, being expressly waived by Assignor and Remaining Party and any person
claiming by, through or under either such party, and (c) Transferor agrees
to
indemnify and hold harmless the Swap Contract Administrator with respect to
any
and all claims under the Old Transaction.
3. Representations
and Warranties.
(a)
On
the
date of this Novation Agreement and on the Novation Date:
(i)
Each
of
the parties makes to each of the other parties those representations and
warranties set forth in Section 3(a) of the 1992 ISDA Master Agreement with
references in such Section to “this Agreement” or “any Credit Support Document”
being deemed references to this Novation Agreement alone.
(ii)
Remaining
Party and Transferor each makes to the other and Remaining Party and Transferee
each makes to the other the representation set forth in Section 3(b) of the
1992
ISDA Master Agreement, in the former case with respect to the Old Agreement,
and
in the latter case with respect to the New Agreement and taking into account
the
parties entering into and performing their obligations under this Novation
Agreement.
(iii)
Each
of
Transferor and Remaining Party represents and warrants to each other and to
Transferee that :
(A) as
of the
date hereof, no other party has any interest or obligation in or under the
Old
Agreement or in respect of the Old Transaction (whether by way of security
or
otherwise) ; and
(B) as
of the
Novation Date, all obligations of Transferor and Remaining Party under the
Old
Transaction required to be performed on or before the Novation Date have been
fulfilled.
(b)
Subject
to its obligations under the Swap Contract Administration Agreement, Transferor
makes no representation or warranty and does not assume any responsibility
with
respect to the legality, validity, effectiveness, adequacy or enforceability
of
the New Transaction or the New Agreement or any documents relating thereto
and
assumes no responsibility for the condition, financial or otherwise, of
Remaining Party, Transferee or any other person or for the performance and
observance by Remaining Party, Transferee or any other person of any of its
obligations under the New Transaction or the New Agreement or any document
relating thereto and any and all such conditions and warranties, whether express
or implied by law or otherwise, are hereby excluded.
4. Counterparts.
This
Novation Agreement (and each amendment, modification and waiver in respect
of
it) may be executed and delivered in counterparts (including by facsimile
transmission), each of which
will be deemed an original.
5. Costs
and Expenses.
The
parties will each pay their own costs and expenses (including legal fees)
incurred in connection with this Novation Agreement and as a result of the
negotiation, preparation and execution of this Novation Agreement.
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6.
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Amendments.
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No
amendment, modification or waiver in respect of this Novation Agreement will
be
effective unless in writing (including a writing evidenced by a facsimile
transmission) and executed by each of the parties or confirmed by an exchange
of
telexes or electronic messages on an electronic messaging system.
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7.
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(a)
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Governing
Law.
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This
Novation Agreement will be governed by and construed in accordance with the
laws
of the State of New York without reference to the conflict of laws provisions
thereof other than New York General Obligations Laws Sections 5-1401 and
5-1402.
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(b)
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Jurisdiction.
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The
terms
of Section 13(b) of the 1992 ISDA Master Agreement shall apply to this Novation
Agreement with references in such Section to “this Agreement” being deemed
references to this Novation Agreement alone.
8. Notices.
For
the
purposes of this Novation Agreement and Section 12(a) of the New Agreement,
the
addresses for notices or communications are as follows: (i) in the case of
Transferor, Countrywide Home Loans, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇., with a copy to the same address,
Attention: Legal Department,
or such
other address as may be hereafter furnished in writing to Transferee and
Remaining Party; (ii) in the case of The Transferee Address: The Bank of New
York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention:
Corporate
Trust MBS Administration, CWABS, Series 2006-8, or such other address as may
be
hereafter furnished in writing to Transferor and Remaining Party; and (iii)
in
the case of Remaining Party, as specified in the Old Confirmation and, for
purposes of Sections 5 and 6 of the New Agreement, to the following
address:
Address: ▇
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇
Attention:
London
Department - Derivative Documentation
Tel
No. ▇▇(▇▇)
▇▇▇ ▇▇▇▇▇
Fax
No. ▇▇(▇▇)
▇▇▇ ▇▇▇▇▇
or
such
other address as may be hereafter furnished in writing to Transferor and The
Transferee.
9. Payments.
All
payments remitted by Remaining Party under the New Transaction shall be made
by
wire transfer according to the following instructions:
The
Bank
of New York
New
York,
NY
ABA
#
▇▇▇-▇▇▇-▇▇▇
GLA
#
111-565
For
Further Credit: TAS A/C 580813
Attn:
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
10.
Provisions Deemed Incorporated into the New Agreement.
For
the
purpose of documenting the New Transaction between Remaining Party and
Transferee, the Old Confirmation shall be amended by inserting the following
provisions therein:
1) Optional
Termination.
Upon
the occurrence of the optional redemption of the Notes (as defined in the
Indenture) pursuant to Section 8.07 of the Indenture, dated as of June 1, 2006,
between GSC Capital Corp. Mortgage Trust 2006-2, as issuer, and The Bank of
New
York, as indenture trustee
(the
“Indenture”):
(a)
Remaining Party and Transferee hereby release one another from all liabilities
and obligations owed under and in respect of the New Transaction, other than
any
liabilities or obligations arising on or prior to the final Payment Date under
the Indenture, and hereby terminate their rights under and in respect of the
New
Transaction, other than any rights arising on or prior to the final Payment
Date
under the Indenture. Subject to the foregoing, and notwithstanding the
provisions of the New Agreement, an Early Termination Date in respect of the
New
Transaction will occur on the final Payment Date under the Indenture, as if
an
Additional Termination Event had occurred with respect to Remaining Party and
Transferee as Affected Parties; provided, however, that no amounts other than
any Unpaid Amounts will be payable by either party in connection with such
Early
Termination Date; and
(b)
Pursuant to a swaption transaction between Countrywide Home Loans, Inc. and
Barclays Bank plc, with a trade date of June 23, 2006, and reference number
[
],
a
transaction evidenced by a confirmation attached hereto as Exhibit II (the
“Swaption
Confirmation”)
between
Countrywide Home Loans, Inc. and Barclays Bank plc will become effective with
terms identical to the terms of the New Transaction (except as modified pursuant
to the Swaption Confirmation) for the period commencing on the Effective Date
(as defined in the Swaption Confirmation) and ending on the Termination Date
(as
defined in the Swaption Confirmation), as if an Early Termination Date had
not
been designated with respect to the New Transaction and as if no Unpaid Amounts
were owing to any party.
IN
WITNESS WHEREOF the parties have executed this Novation Agreement on the
respective dates specified below with effect from and including the Novation
Date.
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Barclays
Bank plc
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Countrywide
Home Loans, Inc.
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By:
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By:
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Name:
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Name:
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Title:
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Title:
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Date:
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June
23, 2006
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Date:
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June
23, 2006
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The
Bank
of New York, not in its individual capacity, but solely as Swap Contract
Administrator for GSC Capital Corp. Mortgage Trust 2006-2
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By:
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Name:
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Title:
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Date:
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June
23, 2006
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