SCHEDULE to the Master Agreement dated as of October 30, 2007 between MERRILL LYNCH CAPITAL SERVICES, INC., a corporation organized and existing under the laws of the State of Delaware (“Party A”), and THE BANK OF NEW YORK, not in its individual or...
EXHIBIT
99.3
(Multicurrency-Cross
Border)
SCHEDULE
to
the
dated
as
of October 30, 2007
between
▇▇▇▇▇▇▇
▇▇▇▇▇ CAPITAL SERVICES, INC.,
a
corporation organized and existing under the laws of the State
of Delaware (“Party A”),
and
THE
BANK OF NEW YORK, not in its individual or corporate capacity but solely as
Swap
Contract Administrator for CWABS Asset-Backed Certificates
Trust 2007-13 (“Party B”)
All
terms used herein and not otherwise defined are given their meaning in the
Pooling and Servicing Agreement for CWABS Asset-Backed Certificates
Trust 2007-13 dated as of October 1,
2007 among CWABS, Inc., as depositor, Park Monaco Inc., as a seller, Park Sienna
LLC, as a seller, Countrywide Home Loans, Inc., as a seller, Countrywide Home
Loans Servicing LP, as master servicer and The Bank of New York, as trustee
(the
“Pooling and Servicing Agreement”).
Part
1: Termination Provisions
For
the
purposes of this Agreement:
(a) “Specified
Entity” will not apply to Party A or Party B for any
purpose.
(b) “Specified
Transaction” will not apply to Party A or Party B for any
purpose.
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(c)
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Events
of Default.
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The
statement below that an Event of Default will apply to a specific party means
that upon the occurrence of such an Event of Default with respect to such party,
the other party shall have the rights of a Non-defaulting Party under Section
6
of this Agreement; conversely, the statement below that such event will not
apply to a specific party means that the other party shall not have such
rights.
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(i)
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The
“Failure to Pay or Deliver” provisions of Section 5(a)(i)
will apply to Party A and will apply to Party B; provided, however,
that
Section 5(a)(i) is hereby amended by replacing the word “third” with the
word “first”.
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(ii)
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The
“Breach of Agreement” provisions of Section 5(a)(ii) will
apply to Party A and will not apply to Party
B.
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(iii)
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The
“Credit Support Default” provisions of Section 5(a)(iii)
will apply to Party A and will not apply to Party B except that Section
5(a)(iii)(1) will apply to Party B solely in respect of Party B’s
obligations under Paragraph 3(b) of the Credit Support Annex; provided,
however, that notwithstanding anything to the contrary in Section
5(a)(iii)(1), any failure by Party A to comply with or perform any
obligation to be complied with or performed by Party A under the
Credit
Support Annex shall not constitute an Event of Default under Section
5(a)(iii) unless (i) a ▇▇▇▇▇’▇ Second Trigger Ratings Event has occurred
and been continuing for 30 or more Local Business Days or (ii) an
S&P
Required Ratings Event has occurred and been continuing for 10 or
more
Local Business Days.
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(iv)
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The
“Misrepresentation” provisions of Section 5(a)(iv) will
apply to Party A and will not apply to Party
B.
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1
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(v)
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The
“Default under Specified Transaction” provisions of
Section 5(a)(v) will not apply to Party A and will not apply to Party
B.
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(vi)
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The
“Cross Default” provisions of Section 5(a)(vi) will apply
to Party A and will not apply to Party B. For purposes of
Section 5(a)(vi), solely with respect to Party
A:
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“Specified
Indebtedness” will have the meaning specified in Section 14.
“Threshold
Amount” means with respect to Party A an amount equal to three percent (3%) of
the Shareholders’ Equity of Party A or, if applicable, the Eligible Guarantor of
Party A.
“Shareholders’
Equity” means with respect to an entity, at any time, the sum (as shown in the
most recent annual audited financial statements of such entity) of (i) its
capital stock (including preferred stock) outstanding, taken at par value,
(ii)
its capital surplus and (iii) its retained earnings, minus (iv) treasury stock,
each to be determined in accordance with generally accepted accounting
principles in the country in which Party A or, if applicable, the Eligible
Guarantor of Party A is organized.
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(vii)
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The
“Bankruptcy” provisions of Section 5(a)(vii) will apply
to Party A and will apply to Party B except that the provisions of
Section
5(a)(vii)(2), (3) (to the extent it refers to any assignment, arrangement
or composition that is effected by or pursuant to the Pooling and
Servicing Agreement), (6) (to the extent that such provisions refer
to any
appointment contemplated or effected by the Pooling and Servicing
Agreement or any appointment to which Party B has not become subject),
(7)
and (9) will not apply to Party B; provided that, with respect to
Party B
only, (i) Section 5(a)(vii)(4) is hereby amended by adding after
the words
“against it” the words “(excluding any proceeding or petition instituted
or presented by Party A or its Affiliates)” and (ii) Section 5(a)(vii)(8)
is hereby amended by deleting the words “to (7) (inclusive)” and inserting
in lieu thereof “, (3) as amended, (4) as amended, (5) and (6) as
amended”.
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(viii)
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The
“Merger Without Assumption” provisions of Section
5(a)(viii) will apply to Party A and will not apply to Party
B.
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(d)
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Termination
Events.
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The
statement below that a Termination Event will apply to a specific party means
that upon the occurrence of such a Termination Event, if such specific party
is
the Affected Party with respect to a Tax Event, the Burdened Party with respect
to a Tax Event Upon Merger (except as noted below) or the non-Affected Party
with respect to a Credit Event Upon Merger, as the case may be, such specific
party shall have the right to designate an Early Termination Date in accordance
with Section 6 of this Agreement; conversely, the statement below that such
an
event will not apply to a specific party means that such party shall not have
such right; provided, however, with respect to “Illegality” the statement that
such event will apply to a specific party means that upon the occurrence of
such
a Termination Event with respect to such party, either party shall have the
right to designate an Early Termination Date in accordance with Section 6 of
this Agreement.
(i) The
“Illegality” provisions of Section 5(b)(i) will apply to Party
A and will apply to Party B.
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(ii)
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The
“Tax Event” provisions of Section 5(b)(ii) will apply to
Party A except that, for purposes of the application of Section 5(b)(ii)
to Party A, Section 5(b)(ii) is hereby amended by deleting the words
“(x)
any action taken by a taxing authority, or brought in a court of
competent
jurisdiction, on or after the date on which a Transaction is entered
into
(regardless of whether such action is taken or brought with respect
to a
party to this Agreement) or (y)” and the “Tax Event”
provisions of Section 5(b)(ii) will apply to Party
B.
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(iii)
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The
“Tax Event Upon Merger” provisions of Section 5(b)(iii)
will apply to Party A and will apply to Party B, provided that Party
A
shall not be entitled to designate an Early Termination Date by reason
of
a Tax Event upon Merger in respect of which it is the Affected
Party.
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2
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(iv)
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The
“Credit Event Upon Merger” provisions of Section 5(b)(iv)
will not apply to Party A and will not apply to Party
B.
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(e)
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The
“Automatic Early Termination” provision of Section 6(a)
will not apply to Party A and will not apply to Party
B.
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(f)
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Payments
on Early Termination. For the purpose of Section 6(e)
of this Agreement:
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(i)
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Market
Quotation will apply, provided, however, that, if an Early Termination
Date has been designated by Party B in respect of a Derivative Provider
Trigger Event, the following provisions will
apply:
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(A)
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The
definition of Market Quotation in Section 14 shall be deleted in
its
entirety and replaced with the
following:
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“Market
Quotation” means, with respect to one or more Terminated
Transactions, a Firm Offer which is (1) made by an Eligible Replacement, (2)
for
an amount that would be paid to Party B (expressed as a negative number) or
by
Party B (expressed as a positive number) in consideration of an agreement
between Party B and such Eligible Replacement to enter into a Replacement
Transaction and (3) made on the basis that Unpaid Amounts in respect of the
Terminated Transaction or group of Transactions are to be excluded but, without
limitation, any payment or delivery that would, but for the relevant Early
Termination Date, have been required (assuming satisfaction of each applicable
condition precedent) after that Early Termination Date is to be
included.
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(B)
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The
definition of Settlement Amount shall be deleted in its entirety
and
replaced with the following:
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“Settlement
Amount” means, with respect to any Early Termination Date, an
amount (as determined by Party B) equal to:
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(a)
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If,
on or prior to such Early Termination Date, a Market Quotation for
the
relevant Terminated Transaction or group of Terminated Transactions
is
accepted by Party B so as to become legally binding, the Termination
Currency Equivalent of the amount (whether positive or negative)
of such
Market Quotation;
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(b)
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If,
on such Early Termination Date, no Market Quotation for the relevant
Terminated Transaction or group of Terminated Transactions has been
accepted by Party B so as to become legally binding and one or more
Market
Quotations have been communicated to Party B and remain capable of
becoming legally binding upon acceptance by Party B, the Termination
Currency Equivalent of the amount (whether positive or negative)
of the
lowest of such Market Quotations (for the avoidance of doubt, (I)
a Market
Quotation expressed as a negative number is lower than a Market Quotation
expressed as a positive number and (II) the lower of two Market Quotations
expressed as negative numbers is the one with the largest absolute
value);
or
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(c)
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If,
on such Early Termination Date, no Market Quotation for the relevant
Terminated Transaction or group of Terminated Transactions is accepted
by
Party B so as to become legally binding and no Market Quotations
have been
communicated to Party B and remain capable of becoming legally binding
upon acceptance by Party B, Party B’s Loss (whether positive or negative
and without reference to any Unpaid Amounts) for the relevant Terminated
Transaction or group of Terminated
Transactions.
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3
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(C)
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If
Party B requests Party A in writing to obtain Market Quotations,
Party A
shall use its reasonable efforts to do so before the Early Termination
Date.
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(D)
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If
the Settlement Amount is a negative number, Section 6(e)(i)(3) shall
be
deleted in its entirety and replaced with the
following:
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“(3)
Second Method and Market Quotation. If the Second Method and Market
Quotation apply, (I) Party B shall pay to Party A an amount equal to the
absolute value of the Settlement Amount in respect of the Terminated
Transactions, (II) Party B shall pay to Party A the Termination Currency
Equivalent of the Unpaid Amounts owing to Party A and (III) Party A shall pay
to
Party B the Termination Currency Equivalent of the Unpaid Amounts owing to
Party
B; provided, however, that (x) the amounts payable under the immediately
preceding clauses (II) and (III) shall be subject to netting in accordance
with
Section 2(c) of this Agreement and (y) notwithstanding any other provision
of
this Agreement, any amount payable by Party A under the immediately preceding
clause (III) shall not be netted-off against any amount payable by Party B
under
the immediately preceding clause (I).”
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(E)
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At
any time on or before the Early Termination Date at which two or
more
Market Quotations have been communicated to Party B and remain capable
of
becoming legally binding upon acceptance by Party B, Party B shall
be
entitled to accept only the lowest of such Market Quotations (for
the
avoidance of doubt, (I) a Market Quotation expressed as a negative
number
is lower than a Market Quotation expressed as a positive number and
(II)
the lower of two Market Quotations expressed as negative numbers
is the
one with the largest absolute
value).
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(ii)
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The
Second Method will apply.
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(g) “Termination
Currency” means USD.
(h) Additional
Termination Events. Additional Termination Events will apply
as provided in Part 5(c).
Part
2: Tax Representations
(a) Tax
Representations.
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(i)
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Payer
Representations. For the purpose of Section 3(e) of
this Agreement:
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(A) Party
A makes the following representation(s):
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: the accuracy of any representations made by
the
other party pursuant to Section 3(f) of this Agreement; (ii) the satisfaction
of
the agreement 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.
(B) Party
B makes the following representation(s):
4
None.
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(ii)
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Payee
Representations. For the purpose of Section 3(f) of
this Agreement:
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(A) Party
A makes the following representation(s):
It
is a
corporation organized under the laws of the State of Delaware.
(B) Party
B makes the following representation(s):
None.
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(b)
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Tax
Provisions.
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(i)
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Gross
Up. Section 2(d)(i)(4) shall not apply to Party B as X
and Section 2(d)(ii) shall not apply to Party B as Y, in each case
such
that Party B shall not be required to pay any additional amounts
referred
to therein.
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(ii)
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Indemnifiable
Tax. The definition of “Indemnifiable Tax” in Section
14 is deleted in its entirety and replaced with the
following:
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“Indemnifiable
Tax” means, in relation to payments by Party A, any Tax and, in
relation to payments by Party B, no Tax.
Part
3: Agreement to Deliver Documents
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(a)
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Tax
forms, documents or certificates to be delivered
are:
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Party
required to deliver document
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Form/Document/Certificate
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Date
by which to be delivered
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Party
A and Party B
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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.
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Promptly
after the earlier of (i) reasonable demand by either party or (ii)
within
30 days of the execution of this
Agreement.
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5
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(b)
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Other
Documents to be delivered are (any document to be delivered below
via
internet shall be deemed to be furnished in writing for purposes
of
Section 3(d) of the
Agreement):
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Party
required to deliver document
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Form/Document/Certificate
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Date
by which to be delivered
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Covered
by Section 3(d) representation
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Party
A and Party B
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Any
documents required or reasonably 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 or its Credit Support Provider
to
perform its obligations under this Agreement, such Confirmation and/or
Credit Support Document, as the case may be.
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Upon
execution.
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Yes
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Party
A and Party B
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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.
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Upon
execution
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Yes
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Party
A
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Annual
Report of Party A containing consolidated financial statements certified
by independent certified public accountants and prepared in accordance
with generally accepted accounting principles in the country in which
Party A is organized.
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Annually,
after becoming publicly available
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Yes
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Party
A
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Quarterly
Financial Statements of Party A containing unaudited, consolidated
financial statements of Party A’s fiscal quarter prepared in accordance
with generally accepted accounting principles in the country in which
Party A is organized.
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Quarterly,
after becoming publicly available
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Yes
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Party
A
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An
opinion of counsel to such party reasonably satisfactory in form
and
substance to the other party regarding the enforceability of this
Agreement, any Confirmation and any Credit Support Documents to which
it
is a party.
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Upon
execution
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No
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Party
A
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A
guarantee of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
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Upon
execution
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No
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6
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Party
required to deliver document
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Form/Document/Certificate
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Date
by which to be delivered
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Covered
by Section 3(d)
representation
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Party
B
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Executed
copy of the Pooling and Servicing Agreement
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Upon
the filing of the Pooling and Servicing Agreement on the Security
and
Exchange Commission’s ▇▇▇▇▇ system
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Yes
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Part
4: Miscellaneous
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(a)
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Addresses
for Notices. For the purposes of Section 12(a) of this
Agreement:
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Party
A:
Address
for notices or communications to Party A in respect of Section 5(a)(i) shall
be
sent to:
2
World
Financial Center, 6th Floor
Attention:
Swap Group
Telephone
No.: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile
No.: ▇▇▇-▇▇▇-▇▇▇▇
Additionally,
a copy of all notices pursuant to Sections 5, 6 and 7 as well as any changes
to
Party B’s address, telephone number or facsimile number should be sent
to:
GMI
Counsel
▇▇▇▇▇▇▇
▇▇▇▇▇ World Headquarters
4
World
Financial ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Swaps
Legal
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Party
B:
Address
for notices or communications to Party B:
The
Bank
of New York
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ – ▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Corporate Trust Administration MBS Administration, CWABS, Series
2007-13
Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
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(b)
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Process
Agent. For the purposes of Section 13(c) of this
Agreement:
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Party
A
appoints as its Process Agent: Not Applicable.
Party
B
appoints as its Process Agent: Not Applicable.
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(c)
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Offices.
The provisions of Section 10(a) will apply to this
Agreement.
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(d)
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Multibranch
Party. For the purpose of Section 10(c) of this
Agreement:
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7
Party
A
is not a Multibranch Party.
Party
B
is not a Multibranch Party.
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(e)
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Calculation
Agent. The Calculation Agent is Party A; provided however,
if an Event of Default occurs and is continuing with respect to Party
A,
then Party B shall be entitled to appoint a financial institution
which
would qualify as a Reference Market-maker to act as Calculation Agent,
the
cost for which shall be borne by Party
A.
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(f)
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Credit
Support Document. Credit Support Document
means
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Party
A:
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The
Credit Support Annex and any guarantee in support of Party A’s obligations
under this Agreement.
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Party
B:
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The
Credit Support Annex, solely in respect of Party B’s obligations under
Paragraph 3(b) of the Credit Support
Annex.
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(g)
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Credit
Support Provider.
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Party
A:
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The
guarantor under any guarantee in support of Party A’s obligations under
this Agreement.
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Party
B:
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None.
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(h)
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(i)
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Netting
of Payments. Subparagraph (ii) of Section 2(c) of this
Agreement will apply to all
Transactions.
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(j)
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“Affiliate”
will have the meaning specified in Section 14 of this Agreement,
provided,
however, that Party B shall be deemed to have no Affiliates for purposes
of this Agreement, including for purposes of Section
6(b)(ii).
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Part
5: Other Provisions
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(a)
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Definitions.
Unless otherwise specified in a Confirmation, this Agreement
and
each Transaction under this Agreement are subject to the 2000 ISDA
Definitions as published and copyrighted in 2000 by the International
Swaps and Derivatives Association, Inc. (the
“Definitions”) and will be governed in all relevant
respects by the provisions set forth in the Definitions, without
regard to
any amendment to the Definitions subsequent to the date
hereof. The provisions of the Definitions are hereby
incorporated by reference in and shall be deemed a part of this Agreement,
except that (i) references in the Definitions to a “Swap Transaction”
shall be deemed references to a “Transaction” for purposes of this
Agreement and (ii) references to a “Transaction” in this Agreement shall
be deemed references to a “Swap Transaction” for purposes of the
Definitions.
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Each
reference herein to a “Section” (unless specifically referencing the Pooling and
Servicing Agreement) or to a “Section” “of this Agreement” will be construed as
a reference to a Section of the ISDA Master Agreement; each reference herein
to
a “Part” will be construed as a reference to the Schedule to the ISDA Master
Agreement; each reference herein to a “Paragraph” will be construed as a
reference to a Paragraph of the Credit Support Annex.
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(b)
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Amendments
to ISDA Master Agreement.
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(i)
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Single
Agreement. Section 1(c) is hereby amended by the
adding the words “including, for the avoidance of doubt, the Credit
Support Annex” after the words “Master
Agreement”.
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(ii)
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Conditions
Precedent. Section
2(a)(iii) is hereby amended by adding the following at the end
thereof:
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Notwithstanding
anything to the contrary in Section 2(a)(iii)(1), if an Event of Default with
respect to Party B or Potential Event of Default with respect to Party B has
occurred and been continuing for more than 30 Local Business Days and no Early
Termination Date in respect of the Affected Transactions has occurred or been
effectively designated by Party A, the obligations of Party A under Section
2(a)(i) shall cease to be subject to the condition precedent set forth in
Section 2(a)(iii)(1) with respect to such specific occurrence of such Event
of
Default or such Potential Event of Default (the “Specific
Event”); provided, however, for the avoidance of doubt, the obligations
of Party A under Section 2(a)(i) shall be subject to the condition precedent
set
forth in Section 2(a)(iii)(1) (subject to the foregoing) with respect to any
subsequent occurrence of the same Event of Default with respect to Party B
or
Potential Event of Default with respect to Party B after the Specific Event
has
ceased to be continuing and with respect to any occurrence of any other Event
of
Default with respect to Party B or Potential Event of Default with respect
to
Party B that occurs subsequent to the Specific Event.
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(iii)
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Change
of Account. Section 2(b) is hereby amended by the
addition of the following after the word “delivery” in the first line
thereof:
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“to
another account in the same legal and tax jurisdiction as the original
account”.
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(iv)
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Representations. Section
3 is hereby amended by adding at the end thereof the following subsection
(g):
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“(g)
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Relationship
Between Parties.
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(1)
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Nonreliance. (i)
It is not relying on any statement or representation of the other
party
regarding any Transaction (whether written or oral), other than the
representations expressly made in this Agreement or the Confirmation
in
respect of that Transaction and (ii) it has consulted with its own
legal,
regulatory, tax, business, investment, financial and accounting advisors
to the extent it has deemed necessary and it has made its own investment,
hedging and trading decisions based upon its own judgment and upon
any
advice from such advisors as it has deemed necessary and not upon
any view
expressed by the other party.
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(2)
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Evaluation
and Understanding. (i) It has the capacity to evaluate
(internally or through independent professional advice) each Transaction
and has made its own decision to enter into each Transaction and
(ii) It
understands the terms, conditions and risks of each Transaction and
is
willing and able to accept those terms and conditions and to assume
those
risks, financially and otherwise.
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(3)
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Purpose. It
is entering into each Transaction for the purposes of managing its
borrowings or investments, hedging its underlying assets or liabilities
or
in connection with a line of
business.
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(4)
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Status
of Parties. The other party is not acting as an agent,
fiduciary or advisor for it in respect of any
Transaction.
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(5)
|
Eligible
Contract Participant. It is an “eligible swap participant” as
such term is defined in Section 35.1(b)(2) of the regulations (17
C.F.R.
35) promulgated under, and an “eligible contract participant” as defined
in Section 1(a)(12) of, the Commodity Exchange Act, as
amended.”
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9
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(v)
|
Transfer
to Avoid Termination Event. Section 6(b)(ii) is hereby
amended (i) by deleting the words “or if a Tax Event Upon Merger occurs
and the Burdened Party is the Affected Party,” and the words “, which
consent will not be withheld if such other party’s policies in effect at
such time would permit it to enter into transactions with the transferee
on the terms proposed” and (ii) by deleting the words “to transfer” and
inserting the words “to effect a Permitted Transfer” in lieu
thereof.
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(vi)
|
Jurisdiction.
Section 13(b) is hereby amended by: (i) deleting in the
second
line of subparagraph (i) thereof the word "non-", (ii) deleting “; and”
from the end of subparagraph 1 and inserting “.” in lieu thereof and (iii)
deleting the final paragraph
thereof.
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(vii)
|
Local
Business Day. The definition of Local Business Day in
Section 14 is hereby amended by the addition of the words “or any Credit
Support Document” after “Section 2(a)(i)” and the addition of the words
“or Credit Support Document” after
“Confirmation”.
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(c)
|
Additional
Termination Events. The following Additional
Termination Events will apply:
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|
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(i)
|
▇▇▇▇▇’▇
First Ratings Trigger Collateral Failure. If (A) it is
not the case that a ▇▇▇▇▇’▇ Second Trigger Ratings Event has occurred and
been continuing for 30 or more Local Business Days and (B) Party
A has
failed to comply with or perform any obligation to be complied with
or
performed by Party A in accordance with the Credit Support Annex,
then an
Additional Termination Event shall have occurred with respect to
Party A
and Party A shall be the sole Affected Party with respect to such
Additional Termination Event.
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|
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(ii)
|
S&P
Approved Ratings Collateral Failure. If (A) it is not
the case that an S&P Required Ratings Event has occurred and been
continuing for 10 or more Local Business Days and (B) Party A has
failed
to comply with or perform any obligation to be complied with or performed
by Party A in accordance with the Credit Support Annex, then an Additional
Termination Event shall have occurred with respect to Party A and
Party A
shall be the sole Affected Party with respect to such Additional
Termination Event.
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(iii)
|
▇▇▇▇▇’▇
Second Ratings Trigger Replacement. If (A) a ▇▇▇▇▇’▇
Second Trigger Ratings Event has occurred and been continuing for
30 or
more Local Business Days and (B) at least one Eligible Replacement
has
made a Firm Offer that would, assuming the occurrence of an Early
Termination Date, qualify as a Market Quotation (as defined in Part
1(f)(i)(A) above) and such Firm Offer remains an offer that will
become
legally binding upon such Eligible Replacement upon acceptance, then
an
Additional Termination Event shall have occurred with respect to
Party A
and Party A shall be the sole Affected Party with respect to such
Additional Termination Event.
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(iv)
|
S&P
Required Ratings Failure. If (A) an S&P Required
Ratings Event has occurred and been continuing for 60 or more calendar
days and (B) Party A has failed to either (i) effect a Permitted
Transfer
or (ii) procure an Eligible Guarantee, then an Additional Termination
Event shall have occurred with respect to Party A and Party A shall
be the
sole Affected Party with respect to such Additional Termination
Event.
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(v)
|
Supplemental
Pooling and Servicing Agreement Without Party A’s Prior Written
Consent. If Party B enters into an amendment and or supplement
to
the Pooling and Servicing Agreement or other modification to the
Pooling
and Servicing Agreement that could reasonably be expected to have
a
material adverse effect on Party A (excluding, for the avoidance
of doubt,
any amendment to the Pooling and Servicing Agreement that is entered
into
solely for the purpose of appointing a successor master servicer
or
trustee) without the prior written consent (such consent not to be
unreasonably withheld) of Party A where such consent is required
under the
Pooling and Servicing Agreement, then an Additional Termination Event
shall have occurred with respect to Party B and Party B shall be
the sole
Affected Party with respect to such Additional Termination
Event. Party B agrees with Party A that Party A shall be an
express third-party beneficiary of the Pooling and Servicing
Agreement.
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10
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(vi)
|
[Reserved]
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(vii)
|
[Reserved]
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(viii)
|
For
the avoidance of doubt, in the event that (A) a ▇▇▇▇▇’▇ Second Trigger
Ratings Event has occurred and been continuing for 30 or more Local
Business Days and (B) an S&P Required Ratings Event has occurred and
been continuing for 60 or more calendar days, Party B shall be entitled
to
declare an Early Termination Date pursuant to Section 6(b)(iv) and
Part
5(c)(iv) for so long as such S&P Required Ratings Event is continuing,
notwithstanding the absence of a Firm Offer from an Eligible
Replacement.
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(d)
|
Required
Ratings Downgrade Event. In the event that no Relevant
Entity has credit ratings that satisfy the S&P Required Ratings
Threshold and the ▇▇▇▇▇’▇ Second Trigger Ratings Threshold (such event, a
“Required Ratings Downgrade Event”), then Party A shall,
as soon as reasonably practicable and so long as a Required Ratings
Downgrade Event is in effect, at its own expense, using commercially
reasonable efforts, either (A) effect a Permitted Transfer or (B)
procure
an Eligible Guarantee.
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(e)
|
Regulation
AB Compliance. Party A and Party B hereby agree that the
terms of the Item 1115 Agreement dated as of August 3, 2007 (the
“Regulation AB Agreement”), between Countrywide Home
Loans, Inc., CWABS, Inc., CWMBS, Inc., CWALT, Inc., CWHEQ, Inc. and
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Services, Inc. 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 Exhibit
A.
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(f)
|
Transfers.
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(i)
|
Section
7 is hereby amended to read in its entirety as
follows:
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“Neither
Party A nor Party B is permitted to assign, novate or transfer (whether by
way
of security or otherwise) as a whole or in part any of its rights, obligations
or interests under this Agreement or any Transaction without (a) the prior
written consent of the other party, (b) prior written notice to ▇▇▇▇▇’▇ and (c)
satisfaction of the Rating Agency Condition with respect to S&P, except
that:
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(a)
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a
party may make such a transfer of all or any part of its interest
in any
amount payable to it from a Defaulting Party under Section
6(e);
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(b)
|
Party
B may transfer its rights and obligations hereunder in connection
with a
transfer pursuant to Article VIII of the Pooling and Servicing
Agreement;
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(c)
|
Party
A may make a Permitted Transfer (i) pursuant to Section 6(b)(ii)
if Party
A is the Affected Party, (ii) pursuant to the Item 1115 Agreement
and Part
5(e), (iii) pursuant to a consolidation or amalgamation with, or
merger
with or into, or transfer of all or substantially all its assets
to,
another entity (but without prejudice to any other right or remedy
under
this Agreement) or (iv) at any time at which no Relevant Entity has
credit
ratings at least equal to the Moody’s First Trigger Ratings Threshold and
S&P Approved Ratings Threshold.
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Any
purported transfer that is not in compliance with this Section will
be
void.
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(ii)
|
If
an Eligible Replacement has made a Firm Offer (and such Firm Offer
remains
an offer that will become legally binding upon such Eligible Replacement
upon acceptance) to be the transferee pursuant to a transfer in accordance
with clause (c) above, Party B shall, at Party A’s written request and at
Party A’s expense, take any reasonable steps required to be taken by Party
B to effect such transfer.
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11
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(iii)
|
If
Party A requests Party B in writing to make a determination for the
purpose of sub-paragraph (d)(B)(i) of the definition of Permitted
Transfer
and Party B does not notify Party A of its determination within 20
Local
Business Days of such request, such sub-paragraph (d)(B)(i) shall
be
deemed to be deleted for purpose of the relevant transfer, provided
that
such transfer is made at a time when (a) Party A is the Affected
Party for
the purpose of Section 6(b)(ii) or (b) no Relevant Entity has credit
ratings at least equal to the Moody’s First Trigger Ratings
Threshold.
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(g)
|
Non-Recourse. Party
A acknowledges and agrees that, notwithstanding any provision in
this
Agreement to the contrary, the obligations of Party B hereunder are
limited recourse obligations of Party B, payable solely from the
Swap
Trust and the proceeds thereof, in accordance with the priority of
payments and other terms of the Pooling and Servicing Agreement and
that
Party A will not have any recourse to any of the directors, officers,
employees, shareholders or affiliates of the Party B with respect
to any
claims, losses, damages, liabilities, indemnities or other obligations
in
connection with any transactions contemplated hereby. In the event
that
the Swap Trust and the proceeds thereof should be insufficient to
satisfy
all claims outstanding following the realization of the account held
by
the Swap Trust and the proceeds thereof, any claims against or obligations
of Party B under this Agreement and any Confirmation hereunder still
outstanding shall be extinguished and thereafter not
revive. Party B shall not have liability for any failure or
delay in making a payment hereunder to Party A due to any failure
or delay
in receiving amounts in the account held by the Swap Trust from the
Trust
Fund created pursuant to the Pooling and Servicing
Agreement.
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(h)
|
Timing
ofPayments by Party B upon Early
Termination. Notwithstanding anything to the contrary
in Section 6(d)(ii), to the extent that all or a portion (in either
case,
the “Unfunded Amount”) of any amount that is calculated as being due in
respect of any Early Termination Date under Section 6(e) from Party
B to
Party A will be paid by Party B from amounts other than any upfront
payment paid to Party B by an Eligible Replacement that has entered
into a
Replacement Transaction with Party B, then such Unfunded Amount shall
be
due on the next subsequent Distribution Date following the date on
which
the payment would have been payable as determined in accordance with
Section 6(d)(ii) and on any subsequent Distribution Dates until paid
in
full (or if such Early Termination Date is the final Distribution
Date, on
such final Distribution Date); provided, however, that if the date
on
which the payment would have been payable as determined in accordance
with
Section 6(d)(ii) is a Distribution Date, such payment will be payable
on
such Distribution Date.
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(i)
|
Rating
Agency Notifications. Notwithstanding any other
provision of this Agreement, no Early Termination Date shall be
effectively designated hereunder by Party B and no transfer of any
rights
or obligations under this Agreement shall be made by either party
unless
each Swap Rating Agency has been provided prior written notice of
such
designation or transfer.
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(j)
|
No
Set-off. Except as expressly provided for in Section
2(c), Section 6, Paragraph 8 of the Credit Support Annex or Part
1(f)(i)(D) hereof and notwithstanding any other 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. Section 6(e) shall be amended by deleting the
following sentence: “The amount, if any, payable in respect of an Early
Termination Date and determined pursuant to this Section will be
subject
to any Set-off.”
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(k)
|
Amendment. Notwithstanding
any provision to the contrary in this Agreement, no amendment of
either
this Agreement or any Transaction under this Agreement shall be permitted
by either party unless each of the Swap Rating Agencies has been
provided
prior written notice of the same and the Rating Agency Condition
is
satisfied with respect to S&P.
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(l)
|
Notice
of Certain Events or Circumstances. Each Party agrees,
upon learning of the occurrence or existence of any event or condition
that constitutes (or that with the giving of notice or passage of
time or
both would constitute) an Event of Default or Termination Event with
respect to such party, to promptly give notice of such event or condition
to the other Party and each Swap Rating Agency; provided that failure
to
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12
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|
provide
notice of such event or condition pursuant to this Part 5(l) shall
not
constitute an Event of Default or a Termination
Event.
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|
(m)
|
Proceedings. No
Relevant Entity shall institute against, or cause any other person
to
institute against, or join any other person in instituting against
Party
B, the Swap Trust or the Trust Fund formed pursuant to the Pooling
and
Servicing Agreement, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under
any
federal or state bankruptcy or similar law for a period of one year
(or,
if longer, the applicable preference period) and one day following
payment
in full of the Certificates. This provision will survive the
termination of this Agreement.
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(n)
|
Swap
Contract Administrator Liability Limitations. Party A
and Party B agree to the following: (a) The Bank of New York (“BNY”) is
entering into this Agreement not in its individual or corporate capacity,
but solely in its capacity as Swap Contract Administrator for CWABS
Asset-Backed Certificates Trust 2007-13; (b) in no case shall BNY
(or any
person acting as successor Swap Contract Administrator for CWABS
Asset-Backed Certificates Trust 2007-13) be personally liable for
or on
account of any of the statements, representations, warranties, covenants
or obligations stated to be those of Party B under the terms of this
Agreement, all such liability, if any, being expressly waived by
Party A
and any person claiming by, through or under Party A; and (c) recourse
against Party B shall be limited to the assets available under the
Pooling
and Servicing Agreement. This Part 5(n) shall survive the termination
of
this Agreement.
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(o)
|
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) in any respect, 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; provided, however, that this severability provision shall
not be
applicable if any provision of Section 2, 5, 6 or 13 (or any definition
or
provision in Section 14 to the extent it relates to, or is used in
or in
connection with, any such Section) shall be so held to be invalid
or
unenforceable.
|
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.
|
(p)
|
[Reserved]
|
|
(q)
|
Escrow
Payments. If (whether by reason of the time difference
between the cities in which payments are to be made or otherwise)
it is
not possible for simultaneous payments to be made on any date on
which
both parties are required to make payments hereunder, either party
may at
its option and in its sole discretion notify the other party that
payments
on that date are to be made in escrow. In this case deposit of
the payment due earlier on that date shall be made by 2:00 pm (local
time
at the place for the earlier payment) on that date with an escrow
agent
selected by the notifying party, accompanied by irrevocable payment
instructions (i) to release the deposited payment to the intended
recipient upon receipt by the escrow agent of the required deposit
of any
corresponding payment payable by the other party on the same date
accompanied by irrevocable payment instructions to the same effect
or (ii)
if the required deposit of the corresponding payment is not made
on that
same date, to return the payment deposited to the party that paid
it into
escrow. The party that elects to have payments made in escrow
shall pay all costs of the escrow
arrangements.
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(r)
|
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 trading, marketing and
operations personnel of the parties and their Affiliates, waives
any
further notice of such monitoring or recording and agrees to notify
such
personnel of such monitoring or
recording.
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13
|
(s)
|
Waiver
of Jury Trial. Each party waives any right it may have
to a trial by jury in respect of any in respect of any suit, action
or
proceeding relating to this Agreement or any Credit Support
Document.
|
|
(t)
|
[Reserved]
|
|
(u)
|
[Reserved]
|
|
(v)
|
Additional
representations.
|
|
|
(i)
|
Capacity. Party
A represents to Party B on the date on which Party A enters into
this
Agreement that it is entering into the Agreement and each Transaction
as
principal and not as agent of any person. Party B represents to
Party A on the date on which Party B enters into this Agreement that
it is
entering into the Agreement and each Transaction in its capacity
as Swap
Contract Administrator.
|
|
(w)
|
Acknowledgements.
|
|
|
(i)
|
Substantial
financial transactions. Each party hereto is hereby
advised and acknowledges as of the date hereof 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 Transactions
being entered into on the terms and conditions set forth herein and
in the
Pooling and Servicing Agreement relating to such Transactions, as
applicable. This paragraph shall be deemed repeated on the trade
date of
each Transaction.
|
|
|
(ii)
|
Bankruptcy
Code. Subject to Part 5(m), without limiting the
applicability, if any, of any other provision of the U.S. Bankruptcy
Code
as amended (the “Bankruptcy Code”) (including without limitation Sections
362, 546, 556 and 560 thereof and the applicable definitions in Section
101 thereof), the parties acknowledge and agree that all Transactions
entered into hereunder will constitute “forward contracts” or “swap
agreements” as defined in Section 101 of the Bankruptcy Code or “commodity
contracts” as defined in Section 761 of the Bankruptcy Code, that the
rights of the parties under Section 6 of this Agreement will constitute
contractual rights to liquidate Transactions, that any margin or
collateral provided under any margin, collateral, security, pledge
or
similar agreement related hereto will constitute a “margin payment” as
defined in Section 101 of the Bankruptcy Code and that the parties
are
entities entitled to the rights under, and protections afforded by,
Sections 362, 546, 556 and 560 of the Bankruptcy
Code.
|
|
(x)
|
[Reserved]
|
|
(y)
|
[Reserved]
|
|
(z)
|
Additional
Definitions.
|
As
used
in this Agreement, the following terms shall have the meanings set forth below,
unless the context clearly requires otherwise:
“Derivative
Provider Trigger Event” means (i) an Event of Default with respect
to which Party A is a Defaulting Party, (ii) a Termination Event (other than
an
Illegality or a Tax Event) with respect to which Party A is the sole Affected
Party or (iii) an Additional Termination Event with respect to which Party
A is
the sole Affected Party.
“Eligible
Guarantee” means an unconditional and irrevocable guarantee of all
present and future payment and delivery obligations of Party A or an Eligible
Replacement to Party A under this Agreement that is provided by an Eligible
Guarantor as principal debtor rather than surety and that is directly
enforceable by Party B, the form and substance of which guarantee are subject
to
the Rating Agency Condition with respect to S&P and either (A) a nationally
recognized tax counsel in the relevant jurisdiction has given a legal opinion
confirming that none of the guarantor’s payments to Party B under such guarantee
will be subject to deduction
14
or
withholding for Tax and such opinion has been delivered to Moody’s, (B) such
guarantee provides that, in the event that any of such guarantor’s payments to
Party B are subject to deduction or withholding for Tax, such guarantor is
required to pay such additional amount as is necessary to ensure that the net
amount actually received by Party B (free and clear of any Tax collected by
withholding) will equal the full amount Party B would have received had no
such
deduction or withholding been required or (C) in the event that any payment
under such guarantee is made net of deduction or withholding for Tax, Party
A is
required, under Section 2(a)(i), to make such additional payment as is necessary
to ensure that the net amount actually received by Party B from the guarantor
will equal the full amount Party B would have received had no such deduction
or
withholding been required.
“Eligible
Guarantor” means an entity that (A) has credit ratings from
S&P at least equal to the S&P Required Ratings Threshold and (B) has
credit ratings from Moody’s at least equal to the Moody’s Second Trigger Ratings
Threshold; provided, for the avoidance of doubt, that an Eligible Guarantee
of
an Eligible Guarantor with credit ratings below the S&P Approved Ratings
Threshold or the Moody’s First Trigger Ratings Threshold, as applicable, will
not cause a Collateral Event (as defined in the Credit Support Annex) to cease
to occur or continue.
“Eligible
Replacement” means an entity that (A) could lawfully perform the
obligations owing to Party B under this Agreement or its replacement (as
applicable) (B) (i) (a) has credit ratings from S&P at least equal to the
S&P Required Ratings Threshold and (b) has credit ratings from Moody’s at
least equal to the Moody’s Second Trigger Ratings Threshold; provided, for the
avoidance of doubt, that an Eligible Replacement with credit ratings below
the
S&P Approved Ratings Threshold or the Moody’s First Trigger Ratings
Threshold, as applicable, will not cause a Collateral Event (as defined in
the
Credit Support Annex) to cease to occur or continue or (ii) provides an Eligible
Guaranty from an Eligible Guarantor and (C) has executed an Item 1115 Agreement
with the Depositor.
“Financial
Institution” means, with respect to any entity, (i) a bank,
broker/dealer, insurance company, structured investment company or derivative
product company or (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
“Firm
Offer” means an offer which, when made, was capable of becoming
legally binding upon acceptance.
“Moody’s”
means ▇▇▇▇▇’▇ Investors Service, Inc., or any successor thereto.
“Moody’s
First Trigger Ratings Threshold” means, with respect to any
entity, (i) if such entity has a short-term unsecured and unsubordinated debt
rating from Moody’s, a long-term unsecured and unsubordinated debt rating or
counterparty rating from Moody’s of “A2” and a short-term unsecured and
unsubordinated debt rating from Moody’s of “Prime-1” or (ii) if such entity does
not have a short-term unsecured and unsubordinated debt rating or counterparty
rating from Moody’s, a long-term unsecured and unsubordinated debt rating or
counterparty rating from Moody’s of “A1”.
“Moody’s
Second Trigger Ratings Event” means that no Relevant Entity has
credit ratings from Moody’s at least equal to the Moody’s Second Trigger Ratings
Threshold.
“Moody’s
Second Trigger Ratings Threshold” means, with respect to any
entity, (i) if such entity has a short-term unsecured and unsubordinated debt
rating from Moody’s, a long-term unsecured and unsubordinated debt rating or
counterparty rating from Moody’s of “A3” and a short-term unsecured and
unsubordinated debt rating from Moody’s of “Prime-2” or (ii) if such entity does
not have a short-term unsecured and unsubordinated debt rating from Moody’s, a
long-term unsecured and unsubordinated debt rating or counterparty rating from
Moody’s of “A3”.
“Permitted
Transfer” means a transfer by novation by Party A to a transferee
(the “Transferee”) of Party A’s rights, liabilities,
duties and obligations under this Agreement, with respect to which transfer
each
of the following conditions is satisfied: (a) the Transferee is an
Eligible Replacement, (b) Party A and the Transferee are both “dealers in
notional principal contracts” within the meaning of Treasury regulations section
1.1001-4, (c) an Event of Default, Termination Event or Additional Termination
Event would not
15
occur
as
a result of such transfer, (d) the Transferee contracts with Party B pursuant
to
a written instrument (the “Transfer Agreement”) (A)
(i) on terms which are effective to transfer to the Transferee all, but not
less
than all, of Party A’s rights, liabilities, duties and obligations under the
Agreement and all relevant Transactions, which terms are identical to the terms
of this Agreement, other than party names, dates relevant to the effective
date
of such transfer, tax representations (provided that the representations in
Part
2(a)(i) are not modified) and any other representations regarding the status
of
the substitute counterparty of the type included in Part 5(b)(iv) and Part
5(v)(i), notice information and account details, and (ii) each Swap Rating
Agency has been given prior written notice of such transfer, or (B) (i) on
terms
that (x) have the effect of preserving for Party B the economic equivalent
of
all payment and delivery obligations (whether absolute or contingent and
assuming the satisfaction of each applicable condition precedent) under this
Agreement immediately before such transfer and (y) are, in all material
respects, no less beneficial for Party B than the terms of this Agreement
immediately before such transfer, as determined by Party B and (ii) Moody’s has
been given prior written notice of such transfer and the Rating Agency Condition
is satisfied with respect to S&P; (e) Party A will be responsible for any
costs or expenses incurred in connection with such transfer (including any
cost
of entering into a Transfer Agreement) and (f) such transfer otherwise complies
with the terms of the Pooling and Servicing Agreement.
“Rating
Agency Condition” means, with respect to any proposed act
hereunder and each Swap Rating Agency specified in connection with such proposed
act, a condition that is satisfied when the party proposing such act consults
with each of the specified Swap Rating Agencies and receives from each such
Swap
Rating Agency a prior written confirmation (including by facsimile transmission)
that the proposed action would not cause a downgrade or withdrawal of the
then-current rating of any Certificates.
“Regulation
AB Agreement” shall have the meaning assigned thereto in Part
5(e).
“Relevant
Entity” means Party A and to the
extent applicable,
a guarantor under an Eligible Guarantee.
“Replacement
Transaction” means, with respect to any Terminated Transaction or
group of Terminated Transactions, a transaction or group of transactions that
(i) has terms which would be effective to transfer to a transferee all, but
not
less than all, of Party A’s rights, liabilities, duties and obligations under
this Agreement and all relevant Transactions, which terms are identical to
the
terms of this Agreement, other than party names, dates relevant to the effective
date of such transfer, tax representations (provided that the representations
in
Part 2(a)(i) are not modified) and any other representations regarding the
status of the substitute counterparty of the type included in Part 5(b)(iv)
and
Part 5(v)(i), notice information and account details, save for the exclusion
of
provisions relating to Transactions that are not Terminated Transactions, or
(ii) (a) would have the effect of preserving for Party B the economic equivalent
of any payment or delivery (whether the underlying obligation was absolute
or
contingent and assuming the satisfaction of each applicable condition precedent)
under this Agreement in respect of such Terminated Transaction or group of
Terminated Transactions that would, but for the occurrence of the relevant
Early
Termination Date, have been required after that date, and (b) has terms which
are, in all material respects, no less beneficial for Party B than those of
this
Agreement (save for the exclusion of provisions relating to Transactions that
are not Terminated Transactions), as determined by Party B.
“Required
Ratings Downgrade Event” shall have the meaning assigned thereto
in Part 5(d).
“S&P”
means Standard & Poor's Rating Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor thereto.
“S&P
Approved Ratings Threshold” means, only with respect to an entity
that is a Financial Institution, a short-term unsecured and unsubordinated
debt
rating from S&P of “A-1” or, if such entity does not have a short-term
unsecured and unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating from S&P of “A+”.
“S&P
Required Ratings Event” means that no Relevant Entity has credit
ratings from S&P at least equal to the S&P Required Ratings
Threshold.
16
“S&P
Required Ratings Threshold” means, (i) with respect to any entity
that is a Financial Institution, a short-term unsecured and unsubordinated
debt
rating from S&P of “A-2” or, if such entity does not have a short-term
unsecured and unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating from S&P of “BBB+” and (ii) with respect to any
entity that is not a Financial Institution, a short-term unsecured and
unsubordinated debt rating from S&P of “A-1” or, if such entity does not
have a short-term unsecured and unsubordinated debt rating from S&P, a
long-term unsecured and unsubordinated debt rating from S&P of
“A+”.
“Swap
Rating Agencies” means, with respect to any date of determination,
each of S&P and Moody’s, to the extent that each such rating agency is then
providing a rating for any of the Certificates.
17
IN
WITNESS WHEREOF, the parties have executed this document by their duly
authorized officers with effect from the date so specified on the first page
hereof.
|
▇▇▇▇▇▇▇
▇▇▇▇▇ CAPITAL SERVICES, INC.
|
THE
BANK OF NEW YORK, not in its individual or corporate capacity but
solely
as Swap Contract Administrator for CWABS Asset-Backed Certificates
Trust
2007-13
|
|||
|
(Party
A)
|
(Party
B)
|
|||
|
By: /s/▇▇▇▇▇▇▇▇
▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
Authorized
Signatory
|
By: /s/
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title:
Vice
President
|
|||
18
EXHIBIT
A
Regulation
AB Agreement
19
Item
1115
Agreement dated as of August 3, 2007 (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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL SERVICES, INC., 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 the SPV, 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 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).
Counterparty
Guarantor: Any entity guaranteeing the obligations of the
Counterparty or any affiliate providing derivative instruments to the
SPV.
Counterparty
Guarantor Condition: Any Counterparty Guarantor that has not
acknowledged and agreed to this Agreement, shall upon providing any guarantee,
have executed and delivered the joinder agreement referred to in Section
5(d).
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).
▇▇▇▇▇: 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.
Master
Agreement: The ISDA Master Agreement between the Counterparty and
SPV, or if no such Master Agreement exists, the ISDA Master Agreement assumed
to
apply to the Derivative Agreement pursuant to its terms.
Prospectus
Supplement: The prospectus supplement prepared in connection with the
public offering and sale of the related Securities.
Regulation
AB: Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17
C.F.R. §§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.
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|
|
(a)
|
Prior
to printing the related Prospectus
Supplement,
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|
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(i)
|
the
Counterparty shall provide to the related Depositor such information
regarding the Counterparty (and any Counterparty Guarantor), as
a
derivative instrument counterparty, as is 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:
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(A)
|
the
Counterparty’s legal name (and any
d/b/a);
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(B)
|
the
organizational form of the
Counterparty;
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|
(C)
|
a
description of the general character of the business of the
Counterparty;
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(D)
|
a
description of any affiliation or relationship (as set forth in
Item 1119)
between the Counterparty and any of the following
parties:
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|
|
(1)
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CHL
(or any other sponsor identified to the Counterparty by
CHL);
|
2
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|
(2)
|
the
related Depositor (as identified to the Counterparty by
CHL);
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|
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(3)
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the
SPV;
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(4)
|
Countrywide
Home Loans Servicing LP (or any other servicer or master servicer
identified to the Counterparty by
CHL);
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(5)
|
The
Bank of New York (or any other trustee identified to the Counterparty
by
CHL);
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(6)
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any
originator identified to the Counterparty by
CHL;
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(7)
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any
enhancement or support provider identified to the Counterparty
by CHL;
and
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(8)
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any
other material transaction party identified to the Counterparty
by
CHL.
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(ii)
|
if
requested by the related Depositor for the purpose of compliance
with Item
1115(b) with respect to a Transaction, the Counterparty
shall:
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(A)
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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, any affiliated entities providing derivative
instruments to the SPV and any Counterparty Guarantor (provided
the
Counterparty Guarantor Condition has been satisfied) (the “Company
Financial Information”), in a form appropriate for use in the Prospectus
Supplement and in an ▇▇▇▇▇-compatible form;
and
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(B)
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if
applicable, cause its accountants to issue their consent to the
filing of
such financial statements in the Registration
Statement.
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(b)
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Following
the Closing Date with respect to a
Transaction,
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(i)
|
no
later than March 1 of each calendar year, 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)(D)
(and
any other parties identified in writing by the related Depositor)
and (2)
provide to the related Depositor a description of such affiliations
or
relationships as described in Section
2(b)(i)(1);
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(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
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|
|
provide
current Company Financial Information (including Company Financial
Information of any Counterparty Guarantor) as required under
Item 1115(b)
of Regulation AB to the related Depositor in an ▇▇▇▇▇-compatible
form, and
(2) if applicable, cause its accountants (and, if applicable,
the
accountants of any Counterparty Guarantor) to issue their consent
to
filing of such financial statements in the Exchange Act Reports
of the
SPV; and
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|
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(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 (including Company Financial Information
of any
Counterparty Guarantor) as required under Item 1115(b) of Regulation
AB to
the related Depositor in an ▇▇▇▇▇-compatible form, (2) if applicable,
cause its accountants (and, if applicable, the accountants of any
Counterparty Guarantor) to issue their consent to filing 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 (including Company Financial
Information of any Counterparty Guarantor) as required under Item
1115(b)
of Regulation AB to the related Depositor in an ▇▇▇▇▇-compatible
form and
if applicable, cause its accountants (and, if applicable, the accountants
of any Counterparty Guarantor) to issue their consent to filing
of such
financial statements in the Exchange Act Reports of the SPV or
(B) assign
the Derivative Agreement as provided
below.
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|
Section
3.
|
Representations
and Warranties and Covenants of the
Counterparty.
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(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 by the Counterparty in writing to the related Depositor
prior
to such date:
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|
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(i)
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The
accountants who certify the financial statements and supporting
schedules
included in the Company Financial Information (including Company
Financial
Information of any Counterparty Guarantor) (if applicable) are
independent
registered public accountants as required by the Securities
Act.
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(ii)
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If
applicable, with respect to the Counterparty and each Counterparty
Guarantor the financial statements included in the Company Financial
Information present fairly the consolidated financial position
of the
Counterparty or such Counterparty Guarantor, as applicable 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
|
4
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|
|
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.
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(iii)
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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.
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(iv)
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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 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.
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(b)
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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.
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|
Section
4.
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Indemnification;
Remedies
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|
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(a)
|
Each
of the Counterparty and any Counterparty Guarantor shall indemnify
CHL and
the related Depositor, each person responsible for the preparation,
execution or filing of any report required to be filed with the
Commission
with respect to such SPV, or 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, 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:
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(i)
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(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 or any Counterparty Guarantor (collectively,
the “Company Information”), or (B) the omission or alleged omission
to
|
5
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|
|
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;
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(ii)
|
any
failure by the Counterparty or any Counterparty Guarantor to deliver
any
information, report, certification, accountants’ consent or other material
or to assign the Derivative Agreement when and as required under
Section
2; or
|
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(iii)
|
any
breach by the Counterparty or any Counterparty Guarantor 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 or any Counterparty
Guarantor 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 or such Counterparty Guarantor shall promptly reimburse
the
related Depositor and each Person responsible for the preparation, execution
or
filing of any report required to be filed with the Commission with respect
to
such SPV, or for execution of a certification pursuant to Rule 13a-14(d)
or Rule
15d-14(d) under the Exchange Act with respect to 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)
|
(i)
|
Any
failure by the Counterparty or any Counterparty Guarantor 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 or any Counterparty Guarantor 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),
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.
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(ii)
|
If
the Counterparty or any Counterparty Guarantor has failed to deliver
any
information, report, or accountants’ consent when and as
required
|
6
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|
|
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),
or if the Counterparty has provided Company Information any breach
by the
Counterparty or any Counterparty Guarantor of a representation
or warranty
pursuant to Section 3 to the extent made as of a date subsequent
to such
Closing Date, 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 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. In the event
that an Early Termination Date is designated in connection with
such
Additional Termination Event, a termination payment (if any)
shall be
payable by the applicable party as of the Early Termination Date
as
determined by the application of Section 6(e)(ii) of the Master
Agreement,
with Market Quotation and Second Method being the applicable
method for
determining the termination
payment.
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(iii)
|
In
the event that the Counterparty or the SPV has found a replacement
entity
in accordance with Section 2(b)(iii), the Counterparty shall promptly
reimburse the SPV for all reasonable incidental expenses incurred
by the
SPV, as such are incurred, in connection with the termination of
the
Counterparty as counterparty and the entry into a new Derivative
Agreement. The provisions of this paragraph shall not limit
whatever rights the SPV may have under other provisions of this
Agreement
or otherwise, whether in equity or at law, such as an action for
damages,
specific performance or injunctive
relief.
|
|
Section
5.
|
Miscellaneous.
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|
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(a)
|
Company
Financial Information. Notwithstanding anything to the contrary
contained herein, if Regulation AB is amended, or the Commission
has
issued interpretive guidance uniformly applicable to registrants
of
Asset-Backed Securities allowing the presentation of the financial
information required by Item 1115 of Regulation AB with respect
to an
affiliate of the Counterparty rather than the Counterparty and
any
affiliated entities providing derivatives to the SPV, "Company
Financial
Information" shall be deemed to refer to the financial
|
7
|
|
|
information
of such permitted entity provided the Counterparty has received
written
confirmation from CHL that no amendment to this Agreement is
necessary. The parties shall reasonably cooperate with respect
to any amendments to this Agreement to reflect such amendment
or
interpretation.
|
|
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(b)
|
Construction. Throughout
this Agreement, as the context requires, (i) the singular tense
and number
includes the plural, and the plural tense and number includes the
singular; (ii) the past tense includes the present, and the present
tense
includes the past; (iii) references to parties, sections, schedules,
and
exhibits mean the parties, sections, schedules, and exhibits of
and to
this Agreement and (iv) “including” and its variations shall be deemed to
be followed by “without limitation”. The section headings in
this Agreement are inserted only as a matter of convenience, and
in no way
define, limit, extend, or interpret the scope of this Agreement
or of any
particular section.
|
|
|
(c)
|
Assignment. None
of the parties may assign their rights under this Agreement without
the
prior written consent of the other parties. Subject to the foregoing,
this
Agreement shall be binding on and inure to the benefit of the parties
and
their respective successors and permitted
assigns.
|
|
|
(d)
|
Counterparty
Guarantor. The Counterparty shall cause any Counterparty
Guarantor that has not acknowledged and agreed to this Agreement
as of the
date first set forth above to subsequently execute a joinder agreement
in
the form attached hereto as Exhibit A acknowledging its rights
and
obligations under this Agreement.
|
|
|
(e)
|
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 and any Counterparty
Guarantor.
|
|
|
(f)
|
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.
|
|
|
(g)
|
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.
|
|
|
(h)
|
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.
|
|
|
(i)
|
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
|
8
|
|
|
become
reasonably necessary or expedient to effectuate and carry out
this
Agreement.
|
|
|
(j)
|
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.
|
|
|
(k)
|
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.
|
9
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/ ▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| Title: Executive Vice President | |||
|
CWMBS,
INC.
|
|||
|
|
|||
|
|
By:
|
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| Title: Executive Vice President | |||
|
CWALT,
INC.
|
|||
|
|
|||
|
|
By:
|
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| Title: Executive Vice President | |||
|
CWHEQ,
INC.
|
|||
|
|
|||
|
|
By:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| Title: Executive Vice President | |||
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COUNTRYWIDE
HOME LOANS, INC.
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By:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| Title: Executive Vice President | |||
10
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▇▇▇▇▇▇▇
▇▇▇▇▇ CAPITAL SERVICES, INC.
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By:
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/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Title: Authorized Signatory | |||
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ACKNOWLEDGED
AND AGREED:
▇▇▇▇▇▇▇
▇▇▇▇▇ & CO., INC.
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By:
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/s/ ▇▇▇▇▇▇▇▇ Kropiewhicki | |
| Name: ▇▇▇▇▇▇▇▇ Kropiewhicki | |||
| Title: Designated Signatory | |||
11
Exhibit
A
Form
of Joinder
The
undersigned Counterparty Guarantor as defined in that certain Item 1115
Agreement COUNTRYWIDE HOME LOANS, INC., a New York corporation, CWABS, Inc.,
a
Delaware corporation, CWMBS, Inc., a Delaware corporation, CWALT, Inc., a
Delaware corporation, CWHEQ, Inc., a Delaware corporation and ▇▇▇▇▇▇▇ ▇▇▇▇▇
CAPITAL SERVICES, INC., as counterparty (the “Counterparty”), dated as of
[ ], 2007 (the “1115 Agreement”),
has reviewed the 1115 Agreement and acknowledges and agrees to the terms
and
conditions of such 1115 Agreement with respect to its rights and obligations
as
a Counterparty Guarantor thereunder.
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[
]
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By:
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| Name | |||
| Title | |||
12