EXHIBIT 99.4
ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT, dated as of June 29, 2006 ("Assignment Agreement"),
among COUNTRYWIDE HOME LOANS, INC. ("Assignor"), THE BANK OF NEW YORK
("Assignee"), as Corridor Contract Administrator for CWHEQ Home Equity Loan
Trust, Series 2006-S3, pursuant to a Corridor Contract Administration
Agreement (the "Corridor Contract Administration Agreement") dated as of June
29, 2006, and BARCLAYS BANK PLC ("Remaining Party").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, effective as of June 29, 2006, Assignor desires to assign all of
its rights and delegate all of its duties and obligations to Assignee under
that certain Transaction (the "Assigned Transaction") as evidenced by a
certain confirmation with a Trade Date of June 16, 2006, whose BARCLAYS BANK
PLC reference number is 1249296B/1249292B (the "Confirmation"), a copy of
which is attached hereto as Exhibit I;
WHEREAS, Assignor and Remaining Party executed and delivered the
Confirmation in connection with an ISDA Master Agreement (Multicurrency--Cross
Border) form (the "ISDA Form Master Agreement");
WHEREAS, Assignee desires to accept the assignment of rights and assume
the delegation of duties and obligations of the Assignor under the Assigned
Transaction and the Confirmation, including any modifications that may be
agreed to by Assignee and Remaining Party; and
WHEREAS, Assignor desires to obtain the written consent of Remaining
Party to the assignment, delegation, and assumption and Remaining Party
desires to grant such consent in accordance with the terms hereof;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained and for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. Assignment and Assumption. Effective as of and from June 29, 2006 (the
"Effective Date"), Assignor hereby assigns all of its rights and delegates all
of its duties and obligations to Assignee and Assignee hereby assumes all
Assignor's rights, duties, and obligations under the Assigned Transaction and
the Confirmation arising on or after the Effective Date.
2. Release. Effective as of and from the Effective Date, Remaining Party
and Assignor hereby release one another from all duties and obligations owed
under and in respect of the Assigned Transaction and the Confirmation, and
Assignor hereby terminates its rights under and in respect of the Assigned
Transaction; provided, that such release shall not affect Assignor's
obligation to pay the Fixed Amount (Premium) in accordance with the terms of
the Assigned Transaction and the Confirmation.
3. Limitation on Liability. Assignor and Remaining Party agree to the
following: (a) The Bank of New York ("BNY") is entering into this Assignment
Agreement solely in its capacity as Corridor Contract Administrator under the
Corridor Contract Administration Agreement; and (b) in no case shall BNY (or
any person acting as successor Corridor Contract Administrator under the
Corridor Contract Administration Agreement) be personally liable for or on
account of any of the statements, representations, warranties, covenants or
obligations stated to be those of Assignee under the terms of the Assigned
Transaction, all such liability, if any, being expressly waived by Assignor
and Remaining Party and any person claiming by, through or under either such
party.
4. Consent and Acknowledgment of Remaining Party. Remaining Party hereby
consents to the assignment and delegation by Assignor to Assignee of all the
rights, duties, and obligations of Assignor under the Assigned Transaction
pursuant to this Assignment Agreement.
5. Governing Agreement. The Assigned Transaction and the Confirmation
shall form a part of, and be subject to, the ISDA Form Master Agreement, as if
Assignee and Remaining Party had executed such agreement on the trade date of
the Transaction (the "Assignee Agreement"). The Confirmation, together with
all other documents referring to the ISDA Form Master Agreement confirming
transactions entered into between Assignee and Remaining Party, shall form a
part of, and be subject to, the Assignee Agreement. For the purposes of this
paragraph, capitalized terms used herein and not otherwise defined shall have
the meanings assigned in the ISDA Form Master Agreement.
6. Additional Provision. Each party hereby agrees that the Confirmation
and thus the Assigned Transaction is each hereby amended as follows:
(a) The following additional provision shall be added as a new Section
[8]:
"Regulation AB Compliance. Party A and Party B agree that the terms
of the Item 1115 Agreement dated as of February 16, 2006 (the
"Regulation AB Agreement"), between Countrywide Home Loans, Inc.,
CWABS, INC., CWMBS, Inc., CWALT, Inc., CWHEQ, Inc. and Barclays Bank
PLC shall be incorporated by reference into this Agreement so that
Party B shall be an express third party beneficiary of the
Regulation AB Agreement. A copy of the Regulation AB Agreement is
attached hereto as Annex A."
(b) The Item 1115 Agreement dated as of February 16, 2006, between
Countrywide Home Loans, Inc., CWABS, INC., CWMBS, Inc., CWALT, Inc.,
CWHEQ, Inc. and Barclays Bank PLC, a copy of which is attached
hereto as Exhibit II, shall be added as Annex A.
7. Representations. Each party hereby represents and warrants to the
other parties as follows:
(a) It is duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization or incorporation;
(b) It has the power to execute and deliver this Assignment Agreement;
and
2
(c) Its obligations under this Assignment Agreement constitute its
legal, valid and binding obligations, enforceable in accordance with
their respective terms.
As of the Effective Date, each of Assignor and Remaining Party represents
that no event or condition has occurred that constitutes an Event of Default,
a Potential Event of Default or, to the party's knowledge, a Termination Event
(as such terms are defined in the Confirmation and Assignee Agreement), with
respect to the party, and no such event would occur as a result of the party's
entering into or performing its obligations under this Assignment Agreement.
8. Indemnity. Each of Assignor and Remaining Party hereby agrees to
indemnify and hold harmless Assignee with respect to any and all claims
arising under the Assigned Transaction prior to the Effective Date. Each of
Assignee and Remaining Party (subject to the limitations set forth in
paragraph 3 above) hereby agrees to indemnify and hold harmless Assignor with
respect to any and all claims arising under the Assigned Transaction on or
after the Effective Date.
9. Governing Law. This Assignment Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
10. Notices. For the purposes of this Assignment Agreement and Section
12(a) of the ISDA Form Master Agreement of the Assigned Transaction, the
addresses for notices or communications are as follows: (i) in the case of
Assignor, Countrywide Home Loans, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, with a copy to the same address,
Attention: Legal Department, or such other address as may be hereafter
furnished in writing to Assignee and Remaining Party; (ii) in the case of
Assignee, The Bank of New York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust MBS Administration, CWHEQ, Series 2006-S3 or such
other address as may be hereafter furnished in writing to Assignor and
Remaining Party; and (iii) in the case of Remaining Party, Barclays Bank PLC,
5 The North Colonade, Canary Wharf, E14 4 BB, such other address as may be
hereafter furnished in writing to Assignor and Assignee.
11. Payments. All payments (if any) remitted by Remaining Party under the
Assigned Transaction shall be made by wire transfer according to the following
instructions:
The Bank of New York
New York, NY
ABA # ▇▇▇-▇▇▇-▇▇▇
GLA # 111-565
For Further Credit: TAS A/C 580835
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
12. Counterparts. This Assignment Agreement may be executed and delivered
in counterparts (including by facsimile transmission), each of which when
executed shall be deemed to be an original but all of which taken together
shall constitute one and the same instrument.
3
IN WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement
as of the date first above written.
COUNTRYWIDE HOME LOANS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Title: Executive Vice President
----------------------------------
THE BANK OF NEW YORK, AS CORRIDOR
CONTRACT ADMINISTRATOR FOR CWHEQ HOME
EQUITY LOAN TRUST, SERIES 2006-S3
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Assistant Treasurer
----------------------------------
BARCLAYS BANK PLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Title: Director
----------------------------------
Exhibit I
[LOGO OMITTED] BARCLAYS 5 The North Colonnade
CAPITAL ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
To: COUNTRYWIDE HOME LOANS, INC. (the "Counterparty")
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Fax No: (▇▇)▇-▇▇▇-▇▇▇▇▇▇▇
From: BARCLAYS BANK PLC (LONDON HEAD OFFICE) ("Barclays")
Date: June 28, 2006
Reference: 1249296B / 1249292B
Corridor Transaction Confirmation
---------------------------------
The purpose of this facsimile (this "Confirmation") is to confirm the terms
and conditions of the Transaction entered into between us on the Trade Date
specified below (the "Transaction").
The definitions and provisions contained in the 2000 ISDA Definitions (the
"2000 Definitions"), as published by the International Swaps and Derivatives
Association, Inc. ("ISDA") are incorporated into this Confirmation. In the
event of any inconsistency between the 2000 Definitions and this Confirmation,
this Confirmation will govern for the purposes of the Transaction. References
herein to a "Transaction" shall be deemed to be references to a "Swap
Transaction" for the purposes of the 2000 Definitions. Capitalized terms used
in this Confirmation and not defined in this Confirmation or the 2000
Definitions shall have the respective meaning assigned in the Agreement. Each
party hereto agrees to make payment to the other party hereto in accordance
with the provisions of this Confirmation and of the Agreement. In this
Confirmation, "Party A" means Barclays and "Party B" means the Counterparty.
1. This Confirmation supersedes any previous Confirmation or other
communication with respect to the Transaction and evidences a complete and
binding agreement between you and us as to the terms of the Swap Transaction
to with this Confirmation relates. This Confirmation is subject to the terms
and conditions of the ISDA Master Agreement dated as of May 17, 1996, between
each of Party A and Party B and shall form a part of and be subject to that
ISDA Master Agreement.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
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2. TRADE DETAILS
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Notional Amount: With respect to any Calculation
Period, the amount set forth for such
period in Schedule
--------------------------------------------------------------------------------
Barclays Capital - the investment banking division of Barclays Bank PLC.
Registered in England IUZ6167.
Registered office ▇▇▇▇▇▇▇▇▇ Place. ▇▇▇▇▇▇ ▇▇▇ SHP. Authorised and
regulated by the Flnancial Services AuthorIty, and a member of the London
Stock Exchange.
Page 2 of 12
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A attached hereto
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Trade Date: June 16, 2006
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Effective Date: June 29, 2006
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Termination Date: June 25, 2008; subject to adjustment
in accordance with the Following
Business Day Convention
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Fixed Amounts:
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Fixed Rate Payer: Counterparty
Fixed Rate Payer Payment Date(s): June 21 2006; subject to adjustment in
accordance with the Following Business
Day Convention
Fixed Amount: USD39,000
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Floating Amounts: To be determined in accordance with
the following formula: Greater of (i)
(Floating Rate -- Cap Rate) * Notional
Amount * Floating Rate Day Count
Fraction; and (ii) zero.
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Floating Rate Payer: Barclays.
Cap Rate Please see Schedule attached hereto
Floating Rate Payer Period End The 25th of each month in each year from
Date(s): (and including) July 25, 2006 to (and
including) the Termination Date;
subject to adjustment in accordance
with the Following Business Day
Convention.
Early Payment: One Business Day.
Floating Rate Option. USD-LIBOR-BBA; provided, however, that
if the Floating Rate determined for
such Floating Rate for any Calcuation
Period is greater than 9.50%,
then the Floating Rate for such
Calculation Period shall be deemed to
be 9.50%
Floating Rate Day Count Fraction: Actual/360
Designated Maturity: 1 Month.
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Reset Dates: The first day of Each Calculation
Period.
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Business Days: New York.
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Governing Law: This Transaction and this Confirmation
will be governed by and construed in
accordance with the laws of the State
of New York (without reference to
choice of law doctrine except Section
5-1401 and Section 5-1402 of the New
York General
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June 28, 2006 d1249296BsSUv5c1
Page 3 of 12
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Obligation Law).
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3. ACCOUNT DETAILS
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Payments to Barclays: Correspondent: BARCLAYS BANK PLC
NEW YORK FEED: ▇▇▇▇▇▇▇▇▇
Beneficiary: BARCLAYS SWAPS
Beneficiary Account: ▇▇▇-▇▇▇▇▇-▇
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Payments to Counterparty: Beneficiary Account: BANK OF
AMERICA NA-SAN FRANCISCO
FEED: 121000358
Beneficiary: COUNTRYWIDE HOME
LOANS, INC.
A/C: 12352 06200
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4. OFFICES
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Barclays: Address for Notices:
--------------------
▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ (pound)144BB
Tel: ▇▇(▇▇) ▇▇▇▇ ▇▇▇▇
Fax: ▇▇(▇▇) ▇▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------
Counterparty: Address for Notices:
--------------------
CIO COUNTRYWIDE FUNDING CORPORATION
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
MAIL STOP WLAR-43
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Tel: ▇(▇▇▇) ▇▇▇-▇▇▇▇
Fax: ▇(▇▇▇) ▇▇▇▇▇▇▇
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5. Left Intentionally Blank
6. Assignment of the Transaction:
At the option of the Counterparty, upon payment of the Fixed Amount and
satisfaction of any other conditions described herein, on a date in the
future, (the "Transfer Date") Barclays and an entity (the "Transferee") to be
designated by the Counterparty and approved by Barclays will enter into a
novation agreement (substantially in the form of the ISDA Form Novation
Agreement published by the International Swaps and Derivatives Association,
Inc., a copy of which is attached hereto as Annex A, and otherwise acceptable
to Barclays) under which, among other things, the Counterparty will transfer
its interest as the Counterparty to the Transaction under this Confirmation to
the Transferee, and under which the Transferee shall assume the rights and
obligations of the Counterparty to the Transaction under this Confirmation
(the "Transfer"). Upon transfer of this Transaction to the Transferee, all
references to Party B or the Counterparty or words of similar meaning or
import shall be deemed to be a reference to the Transferee.
June 28, 2006 d1249296BsSUv5c1
Page 4 of 12
As of the date of such Transfer, the Transferee and Barclays will be deemed to
enter into an ISDA Master Agreement in the form of the 1992 ISDA Master
Agreement (Multicurrency --Cross Border) published by the International Swaps
and Derivatives Association, Inc. (the "Form ISDA Master Agreement") without
any Schedule, except for the elections that are provided in Part 7 of this
Confirmation. As of the date of such Transfer, as between the Transferee and
Barclays, this Confirmation shall be deemed to supplement, form a part of, and
be subject to the Form ISDA Master Agreement (together, the "Transferred
Agreement"). All provisions contained in the Form ISDA Master Agreement shall
govern this Confirmation except as expressly modified herein.
7. Provisions Deemed Incorporated into this Agreement upon Transfer:
As of the date of Transfer, the following provisions i) through vii) will be
deemed to be incorporated into the Transferred Agreement
i) The parties agree that subparagraph (ii) of Section 2(c) of
the ISDA Form Master Agreement will apply to any
Transaction.
ii) Termination Provisions. For purposes of the Transferred
Agreement:
(a) "Specified Entity" means in relation to Party A for the
purpose of the Agreement:
Section 5(a)(v): None;
Section 5(a)vi): None;
Section 5(a)(vii): None;
Section 5(b)(iv): None;
and in relation to Party B for the purpose of this Agreement:
Section 5(a)(v): None;
Section 5(a)(vi): None;
Section 5(a)(vii): None;
Section 5(b)(iv): None.
(b) "Specified Transaction" shall be inapplicable to Party A and
Party B.
(c) The "Breach of Agreement" provisions of Section 5(a)(ii) of
the Agreement will be inapplicable to Party A and Party B.
(d) The "Credit Support Default" provisions of Section 5(a)(iii)
of the Agreement will be inapplicable to Party B.
(e) The "Misrepresentation" provisions of Section 5(a)(iv) of
the Agreement will be inapplicable to Party A and Party B.
(f) The "Default Under Specified Transaction" provisions of
Section 5(a)(v) of the Agreement will be inapplicable to
Party A and Party B.
(g) The "Cross Default" provisions of Section 5(a)(vi) of the
Agreement will be inapplicable to Party A and Party B.
(h) The "Credit Event Upon Merger" provisions of Section
5(b)(iv) of the Agreement will be inapplicable to Party A
and Party B.
June 28, 2006 d1249296BsSUv5c1
Page 5 of 12
(i) The "Bankruptcy" provision of Section 5(a)(vii)(2) will not
apply to Party B.
(j) The "Automatic Early Termination" provision of Section 6(a)
of the Agreement will be inapplicable to Party A and Party
B.
(k) Payments on Early Termination. For the purpose of Section
6(e) of the Transferred Agreement:
(i) Market Quotation will apply,
(ii) The Second Method will apply.
(1) "Termination Currency" means United States Dollars.
iii) Tax Representations.
Payer Tax Representations. For the purpose of Section 3(e), each
of Barclays and the Counterparty makes the following
representation:
It is not required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, of
any Relevant Jurisdiction to make any deduction or
withholding for or on account of any Tax from any payment
(other than interest under Section 2(e), 6(d)(ii) or 6(e) of
this Agreement) to be made by it to the other party under
this Agreement. In making this representation, it may rely
on: (i) the accuracy of any representation made by the other
party pursuant to Section 3(f) of this Agreement; (ii) the
satisfaction of the agreement of the other party contained
in Section 4(a)(i) or 4(a)(iii) of this Agreement and the
accuracy and effectiveness of any document provided by the
other party pursuant to Section 4(a)(i) or 4(a)(iii) of this
Agreement; and (iii) the satisfaction of the agreement of the
other party contained in Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation
where reliance is placed on clause (ii) and the other party
does not deliver a form or document under Section 4(a)(iii)
by reason of material prejudice to its legal or commercial
position.
Barclays Payee Tax Representations. For the purpose of Section
3(f), Barclays makes the following representations:
With respect to payments made to Barclays which are not
effectively connected to the U.S.: It is a non-U.S. branch
of a foreign person for U.S. federal income tax purposes.
With respect to payments made to Barclays which are
effectively connected to the U.S.: Each payment received or
to be received by it in connection with this Agreement will
be effectively connected with its conduct of a trade or
business in the U.S.
Counterparty Payee Tax Representations. For the purpose of
Section 3(f), Counterparty makes the following representation:
Counterparty represents that it is a "United States person"
as such term is defined in Section 7701(a)(30) of the
Internal Revenue Code of 1986, as amended.
June 28, 2006 d1249296BsSUv5c1
Page 6 of 12
iv) Documents to be Delivered. For the purpose of Section 4(a):
(a) Tax forms, documents or certificates to be delivered are:
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Party required to deliver Form/Document/Certificate Date by which to be delivered
document
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Barclays and Counterparty Any document required or Promptly after the earlier of
reasonably requested to allow (i) reasonable demand by
the other party to make either party or (ii) within 30
payments under this Agreement days of the Transfer Date.
without any deduction or
withholding for or on the
account of any Tax or with
such deduction or withholding
at a reduced rate.
---------------------------------------------------------------------------------------------------------------
(b) Other Documents to be delivered are:
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Party required Form/Document/Certificate Date by which Covered by
to deliver to be delivered Section 3(d)
document representation
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Barclays and the Any documents required or Transfer Date. Yes
Counterparty 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 to its Credit
Support Provider to perform
its obligations under this
Agreement, such Confirmation
and/or Credit Support
Document, as the case may be.
--------------------------------------------------------------------------------------------------------------------------------
Barclays and the A certificate of an authorized Transfer Date Yes
Counterparty 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.
June 28, 2006 d1249296BsSUv5c1
Page 7 of 12
v) Miscellaneous.
(a) Address for Notices: For the purposes of Section
12(a) of this Agreement:
Address for notices or communications to Barclays:
Address: ▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇
Facsimile: ▇▇(▇▇) ▇▇▇ ▇▇▇▇▇
Phone: ▇▇(▇▇) ▇▇▇ ▇▇▇▇▇
Address for notices or communications to the Counterparty:
To be provided by counterparty.
(b) Process Agent. For the purpose of Section 13(c):
Barclays appoints as its Process Agent: Barclays
Bank PLC, New York Branch.
Counterparty appoints as its Process Agent: Not
Applicable.
(c) Offices. The provisions of Section 10(a) will apply
to this Agreement.
(d) Multibranch Party. For the purpose of Section 10(c)
of this Agreement:
Barclays is a Multibranch Party and may
act through its London and New York
offices.
Counterparty is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is
Barclays; provided, however, that if an Event of
Default occurs with respect to Barclays, then the
Counterparty shall be entitled to appoint a
financial institution which would qualify as a
Reference Market-maker to act as Calculation Agent.
(f) Credit Support Document. Not applicable for either
Barclays or the Counterparty.
(g) Credit Support Provider.
With respect to Barclays: Not Applicable.
With respect to Counterparty: Not Applicable.
(h) Governing Law. This Agreement shall be governed by,
and construed in accordance with the laws of the
State of New York (without reference to choice of
law doctrine except Section 5-1401 and Section
5-1402 of the New York General Obligation Law).
(i) Consent to Recording. Each party hereto consents
and agrees the monitoring or recording, at any time
and from time to time, by the other party of any
and all communications between officers or
employees of the parties, waives any
June 28, 2006 d1249296BsSUv5c1
Page 8 of 12
further notice of such monitoring or recording, and
agrees to notify its officers and employees of such
monitoring or recording.
(j) Waiver of Jury Trial. To the extent permitted by
applicable law, each party irrevocably waives any
and all right to trial by jury in any legal
proceeding in connection with this Agreement, any
Credit Support Document to which it is a Party, or
any Transaction. Each party also acknowledges that
this waiver is a material inducement to the other
party's entering into this Agreement.
(k) "Affiliate" Counterparty shall be deemed to not
have any Affiliates for purposes of this Agreement.
(1) Severability. If any term, provision, covenant, or
condition of this Agreement, or the application
thereof to any party or circumstance, shall be held
to be invalid or unenforceable (in whole or in
part) for any reason, the remaining terms,
provisions, covenants, and conditions hereof shall
continue in full force and effect as if this
Agreement had been executed with the invalid or
unenforceable portion eliminated, so long as this
Agreement as so modified continues to express,
without material change, the original intentions of
the parties as to the subject matter of this
Agreement and the deletion of such portion of this
Agreement will not substantially impair the
respective benefits or expectations of the parties.
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.
vi)- Additional Representations:
Each party represents to the other party that
(absent a written agreement between the parties
that expressly imposes affirmative obligations to
the contrary):-
(a) Non-Reliance. It is acting for its own
account, and it has made its own
independent decisions to enter into the
Transaction and as to whether the
Transaction is appropriate or proper based
upon its own judgment and upon advice from
such advisers as it has deemed necessary.
It is not relying on any communication
(written or oral) of the other party as
investment advice or as a recommendation
to enter into the Transaction: it being
understood that information and
explanations related to the terms and
conditions of the Transaction shall not be
considered investment advice or a
recommendation to enter into the
Transaction. No communication (written or
oral) received from the other party shall
be deemed to be an assurance or guarantee
as to the expected results of the
Transaction.
(b) Assessment and Understanding. It is
capable of assessing the merits of and
understanding (on its own behalf or
through independent professional advice),
and understands and accepts, the terms,
conditions and risks of the Transaction.
It is also capable of assuming, and
assumes, the risks of the Transaction.
June 28, 2006 d1249296BsSUv5c1
Page 9 of 12
(c) Status of Parties. The other party is not
acting as a fiduciary for or an adviser to
it in respect of the Transaction.
(d) Purpose. It is entering into the
Transaction for the purposes of hedging
its assets or liabilities or in connection
with a line of business.
(e) Eligible Contract Participant
Representation. It is an "eligible
contract participant" within the meaning
of Section 1(a)(12) of the Commodity
Exchange Act, as amended, including as
amended by the Commodity Futures
Modernization Act of 2000.
vii) Other Provisions.
(a) Fully-Paid Party Protected.
Notwithstanding the terms of Sections 5
and 6 of the Agreement if Party B has
satisfied in full all of its payment
obligations under Section 2(a)(i) of the
Agreement, then unless Party A is required
pursuant to appropriate proceedings to
return to Party B or otherwise returns to
Party B upon demand of Party B any portion
of such payment, (a) the occurrence of an
event described in Section 5(a) of the
Agreement with respect to Party B shall
not constitute an Event of Default or
Potential Event of Default with respect to
Party B as the Defaulting Party and (b)
Party A shall be entitled to designate an
Early Termination Event pursuant to
Section 6 of the Agreement only as a
result of a Termination Event set forth in
either Section 5(b)(i) or Section 5(b)(ii)
of the Agreement with respect to Party A
as the Affected Party or Section 5(b)(iii)
of the Agreement with respect to Party A
as the Burdened Party. For purposes of the
Transaction to which this Confirmation
relates, Party B's only obligation under
Section 2(a)(i) of the Agreement is to pay
the Fixed Amount on the Fixed Rate Payer
Payment Date.
(b) Set-Oft Notwithstanding any provision of
this Agreement or any other existing or
future agreement, each party irrevocably
waives any and all rights it may have to
set o4 net, recoup or otherwise withhold
or suspend or condition payment or
performance of any obligation between it
and the other party hereunder against any
obligation between it and the other party
under any other agreements. The provisions
for Set-Off set fort in Section 6(e) of
the Agreement shall not apply for purposes
of this Transaction.
(c) Proceedings. Party A shall not institute
against or cause any other person to
institute against, or join any other
person in instituting against, the Trust,
any bankruptcy, reorganization,
arrangement, insolvency or liquidation
proceedings, or other proceedings under
any federal or state bankruptcy,
dissolution or similar law, for a period
of one year and one day (or, if longer,
the applicable preference period)
following indefeasible payment in full of
the Certificates.
June 28, 2006 d1249296BsSUv5c1
Page l0 of 12
The time of dealing will be confirmed by Barclays upon written request.
Barclays is regulated by the Financial Services Authority. Barclays is acting
for its own account in respect of this Transaction.
Please confirm that the foregoing correctly sets forth all the terms and
conditions of our agreement with respect to the Transaction by responding
within three (3) Business Days by promptly signing in the space provided below
and both (i) faxing the signed copy to Incoming Transaction Documentation,
Barclays Capital Global OTC Transaction Documentation & Management, Global
Operations, Fax ▇(▇▇) ▇▇-▇▇▇▇-▇▇▇▇/6857, Tel ▇(▇▇) ▇▇-▇▇▇▇-▇▇▇▇/6904/6965, and
(ii) mailing the signed copy to Barclays Bank PLC, 5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, Attention of Incoming Transaction Documentation,
Barclays Capital Global OTC Transaction Documentation & Management, Global
Operation. Your failure to respond within such period shall not affect the
validity or enforceability of the Transaction against you. This facsimile
shall be the only documentation in respect of the Transaction and accordingly
no hard copy versions of this Confirmation for this Transaction shall be
provided unless the Counterparty requests.
Page 11 of 12
For and on behalf of For and on behalf of
BARCLAYS BANK PLC COUNTRYWIDE HOME LOANS, INC.
/s/ ▇▇▇ ▇▇▇▇▇ /s/ illegible
▇▇▇ ▇▇▇▇▇
------------------------------ ------------------------------
NAME NAME
Authorised Signatory Authorised Signatory
Date: 29/06/2006 Date;
Barclays Bank PLC and its Affiliates, including Barclays Capital Inc., may
share with each other information, including non-public credit information,
concerning its clients and prospective clients. If you do not want such
information to be shared, you must write to the Director of Compliance,
Barclays Bank PLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
June 28, 2006 d1249296BsSUv5c1
Schedule A to the Confirmation dated as of June 16, 2006
Re: Reference Number 1249296B / 1249292B
PERIOD PERIOD END
START DATE DATE NOTIONAL (in USD) CAP RATE
29-Jun-06 25-Jul-06 539,257,000 7.95562
25-Jul-06 25-Aug-06 522,601,062 6.67253
25-Aug-06 25-Sep-06 504,430,419 6.67261
25-Sep-06 25-Oct-06 484,800,198 6.89510
25-Oct-06 25-Nov-06 463,773,232 6.61275
25-Nov-06 25-Dec-06 441,419,820 6.89525
25-Dec-06 25-Jan-07 417,817,474 6.67289
25-Jan-07 25-Feb-07 393,053,064 6.67295
25-Feb-07 25-Mar-07 367,216,987 7.38797
25-Mar-07 25-Apr-07 340,405,841 6.67305
25-Apr-07 25-May-07 312,726,602 6.89552
25-May-07 25-Jun-07 284,400,249 6.67338
25-Jun-07 25-Jul-07 257,101,433 6.89612
25-Jul-07 25-Aug-07 230,794,563 6.67396
25-Aug-07 25-Sep-07 205,443,820 6.67426
25-Sep-07 25-Oct-07 181,014,672 6.89704
25-Oct-07 25-Nov-07 157,473.829 6.67486
25-Nov-07 25-Dec-07 134,789,196 6.89767
25-Dec-07 25-Jan-08 112,929,833 6.67547
25-Jan-08 25-Feb-08 91,865,912 6.67578
25-Feb-08 25-Mar-08 71,568,679 7.3651
25-Mar-08 25-Apr-08 52,010,412 6.67640
25-Apr-08 25-May-08 33,164,388 6.89928
25-May-08 25-Jun-08 15,004,844 6.67704
* All dates subject to adjustment in accordance with Following Business Day
Convention
June 28, 2006 d1249296BsSUv5c1
Exhibit II
Item 1115 Agreement dated as of February 16, 2006 (this
"Agreement"), between COUNTRYWIDE HOME LOANS, INC., a New York corporation
("CHL"), CWABS, INC., a Delaware corporation ("CWABS"), CWMBS, Inc., a
Delaware corporation ("CWMBS"), CWALT, Inc., a Delaware corporation ("CWALT"),
CWHEQ, Inc., a Delaware corporation ("CWHEQ") and BARCLAYS BANK PLC, as
counterparty (the "Counterparty").
RECITALS
WHEREAS, CWABS, CWMBS, CWALT and CWHEQ each have filed
Registration Statements on Form S-3 (each, a "Registration Statement") with
the Securities and Exchange Commission (the "Commission") for purposes of
offering mortgage backed or asset-backed notes and/or certificates (the
"Securities") through special purpose vehicles (each, an "SPV").
WHEREAS, from time to time, on the closing date (the
"Closing Date") of a transaction pursuant to which Securities are offered
(each, a "Transaction"), the Counterparty and CHL or an underwriter or dealer
with respect to the Transaction, enter into certain derivative agreements
(each, a "Derivative Agreement"), including interest rate caps and interest
rate or currency swaps, for purposes of providing certain yield enhancements
that are assigned to the SPV or the related trustee on behalf of the SPV or a
swap or corridor contract administrator (each, an "Administrator").
NOW, THEREFORE, in consideration of the mutual agreements
set forth herein and for other good and valuable consideration, the receipt
and adequacy of which is hereby acknowledged, the parties hereby agree as
follows:
Section 1. Definitions
Company Information: As defined in Section 4(a)(i).
Company Financial Information: As defined in Section
2(a)(ii).
Countrywide Indemnified Party: As defined in Section 4(a).
Counterparty Indemnified Party: As defined in Section 4(b).
Depositor: Means CWABS, CWMBS, CWALT or CWHEQ with respect
to the related Registration Statement for which the entity of the registrant.
GAAP: As defined in Section 3(a)(v).
▇▇▇▇▇: The Commission's Electronic Data Gathering, Analysis
and Retrieval system.
Exchange Act: The Securities Exchange Act of 1934, as
amended and the rules and regulations promulgated thereunder.
Exchange Act Reports: All Distribution Reports on Form 10-D,
Current Reports on Form 8-K and Annual Reports on Form 10-K that are to be
filed with respect to the related SPV pursuant to the Exchange Act.
Indemnified Party: As defined in Section 4(b).
Master Agreement: The ISDA Master Agreement between the
Counterparty and CHL, or if no such Master Agreement exists, the ISDA Master
Agreement assumed to apply to the Derivative Agreement pursuant to its terms.
Prospectus Supplement: The prospectus supplement prepared in
connection with the public offering and sale of the related Securities.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended
from time to time, and subject to such clarification and interpretation as
have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531
(Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by
the Commission or its staff from time to time.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
Section 2. Information to Be Provided by the Counterparty.
(a) Prior to printing the related Prospectus Supplement,
(i) the Counterparty shall provide to the related
Depositor such information regarding the
Counterparty, as a derivative instrument
counterparty, as is reasonably requested by the
related Depositor for the purpose of compliance
with Item 1115(a)(1) of Regulation AB. Such
information shall include, at a minimum:
(A) The Counterparty's legal name (and any
d/b/a);
(B) the organizational form of the
Counterparty;
(C) a description of the general character of
the business of the Counterparty;
(D) a description of any affiliation or
relationship between the Counterparty and
any of the following parties:
(1) CHL (or any other sponsor
identified to the Counterparty by
CHL);
(2) the related Depositor (as
identified to the Counterparty by
CHL);
2
(3) the SPV;
(4) Countrywide Home Loans Servicing
LP (or any other servicer or
master servicer identified to the
Counterparty by CHL);
(5) The Bank of New York (or any
other trustee identified to the
Counterparty by CHL);
(6) any originator identified to the
Counterparty by CHL;
(7) any enhancement or support
provider identified to the
Counterparty by CHL; and
(8) any other material transaction
party identified to the
Counterparty by CHL.
(ii) if requested by the related Depositor for the
purpose of compliance with Item 1115(b) with
respect to a Transaction, the Counterparty shall:
(A) provide the financial data required by
Item 1115(b)(1) or (b)(2) of Regulation AB
(as specified by the related Depositor to
the Counterparty) with respect to the
Counterparty (or any entity that
consolidates the Counterparty) and any
affiliated entities providing derivative
instruments to the SPV (the "Company
Financial Information"), in a form
appropriate for use in the Prospectus
Supplement and in an ▇▇▇▇▇-compatible form
(if not incorporated by reference) and
hereby authorizes the related Depositor to
incorporate by reference the financial
data required by Item 1115(b)(2) of
Regulation AB; and
(B) if applicable, cause its accountants to
issue their consent to the filing or the
incorporation by reference of such
financial statements in the Registration
Statement.
(b) Following the Closing Date with respect to a Transaction,
(i) no later than the 25th calendar day of each month,
the Counterparty shall (1) notify the related
Depositor in writing of any affiliations or
relationships that develop following the Closing
Date between the Counterparty and any of the
parties specified in Section 2(a)(i)(E) (and any
other parties identified in writing by the related
Depositor) and (2) provide to the related Depositor
a description of such proceedings, affiliations or
relationships as described in Section 2(b)(i)(1);
(ii) if the Counterparty provided Company Financial
Information to the related Depositor for the
Prospectus Supplement, within 5 Business Days of
the release of any updated financial data, the
Counterparty shall (1)
3
provide current Company Financial Information as
required under Item 1115(b) of Regulation AB to the
related Depositor in an ▇▇▇▇▇-compatible form (if
not incorporated by reference) and hereby
authorizes the related Depositor to incorporate by
reference the financial data required by Item
1115(b)(2) of Regulation AB, and (2) if applicable,
cause its accountants to issue their consent to
filing or incorporation by reference of such
financial statements in the Exchange Act Reports of
the SPV; and
(iii) if the related Depositor requests Company Financial
Information from the Counterparty, for the purpose
of compliance with Item 1115(b) of Regulation AB
following the Closing Date, the Counterparty shall
upon five Business Days written notice either (A),
(1) provide current Company Financial Information
as required under Item 1115(b) of Regulation AB to
the related Depositor in an ▇▇▇▇▇-compatible form
(if not incorporated by reference) and hereby
authorizes the related Depositor to incorporate by
reference the financial data required by Item
1115(b)(2) of Regulation AB, (2) if applicable,
cause its accountants to issue their consent to
filing or incorporation by reference of such
financial statements in the Exchange Act Reports of
the SPV and (3) within 5 Business Days of the
release of any updated financial data, provide
current Company Financial Information as required
under Item 1115(b) of Regulation AB to the related
Depositor in an ▇▇▇▇▇-compatible form and if
applicable, cause its accountants to issue their
consent to filing or incorporation by reference of
such financial statements in the Exchange Act
Reports of the SPV or (B) assign the Derivative
Agreement as provided below.
Section 3. Representations and Warranties and Covenants of the
Counterparty.
(a) The Counterparty represents and warrants to the related
Depositor, as of the date on which information is first
provided to the related Depositor under Section 2(a)(ii),
Section 2(b)(ii) or Section 2(b)(iii)(A), that, except as
disclosed in writing the related Depositor prior to such
date:
(i) The Counterparty or the entity that consolidates
the Counterparty is required to file reports with
the Commission pursuant to section 13(a) or 15(d)
of the Exchange Act.
(ii) The Counterparty or the entity that consolidates
the Counterparty has filed all reports and other
materials required to be filed by such requirements
during the preceding 12 months (or such shorter
period that such party was required to file such
reports and materials).
(iii) The reports filed by the Counterparty, or entity
that consolidates the Counterparty, include (or
properly incorporate by reference) the financial
statements of the Counterparty.
4
(iv) The accountants who certify the financial
statements and supporting schedules included in the
Company Financial Information (if applicable) are
independent registered public accountants as
required by the Securities Act.
(v) If applicable, the financial statements included in
the Company Financial Information present fairly
the consolidated financial position of the
Counterparty (or the entity that consolidates the
Counterparty) and its consolidated subsidiaries as
at the dates indicated and the consolidated results
of their operations and cash flows for the periods
specified; except as otherwise stated in the
Company Financial Information, said financial
statements have been prepared in conformity with
generally accepted accounting principles ("GAAP")
applied on a consistent basis; and the supporting
schedules included in the Company Financial
Information present fairly in accordance with GAAP
the information required to be stated therein. The
selected financial data and summary financial
information included in the Company Financial
Information present fairly the information shown
therein and have been compiled on a basis
consistent with that of the audited financial
statements of the Counterparty.
(vi) The Company Financial Information and other Company
Information included or incorporated by reference
in the Registration Statement (including through
filing on an Exchange Act Report), at the time they
were or hereafter are filed with the Commission,
complied in all material respects with the
requirements of Item 1115(b) of Regulation AB (in
the case of the Company Financial Information) and,
did not and will not contain an untrue statement of
a material fact or omit to state a material fact
required to be stated therein or necessary in order
to make the statements therein, in the light of the
circumstances under which they were made, not
misleading.
(b) If the Counterparty has provided Company Financial
Information that is incorporated by reference into the
Registration Statement of the related Depositor, the
Counterparty, so long as the related Depositor is required
to file Exchange Act Reports with respect to the SPV, will
file promptly all documents required to be filed with the
Commission pursuant to Section 13 or 14 of the 1934 Act.
(c) If at any time the representations and warranties set forth
in 3(a)(i) through (iii) are no longer true and correct, the
Counterparty shall provide notice to the related Depositor,
and if any Company Financial Information is required to be
included in the Registration Statement, or the Exchange Act
Reports of the SPV, will provide to the related Depositor
such Company Financial Information in ▇▇▇▇▇-compatible
format no later than the 25th calendar day of the month in
which any of the representations or warranties in Section
3(a)(i) through (iii) ceased to be correct.
5
(d) The Counterparty agrees that the terms of this Agreement
shall be incorporated by reference into any Derivative
Agreement so that each SPV who is a beneficiary of a
Derivative Agreement shall be an express third party
beneficiary of this Agreement.
Section 4. Indemnification; Remedies
(a) The Counterparty shall indemnify CHL and the related
Depositor, each person responsible for execution of a
certification pursuant to Rule 13a-14(d) or Rule 15d-14(d)
under the Exchange Act; each broker dealer acting as
underwriter, each person who controls any of such parties
(within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act); and the respective present
and former directors, officers, employees and agents of each
of the foregoing (each, a "Countrywide Indemnified Party"),
and shall hold each of them harmless from and against any
losses, damages, penalties, fines, forfeitures, legal fees
and expenses and related costs, judgments, and any other
costs, fees and expenses that any of them may sustain
arising out of or based upon:
(i) (A) any untrue statement of a material fact
contained or alleged to be contained in any
information, report, accountants' consent or other
material provided in written or electronic form
under Section 2 by or on behalf of the Counterparty
(collectively, the "Company Information"), or (B)
the omission or alleged omission to state in the
Company Information a material fact required to be
stated in the Company Information or necessary in
order to make the statements therein, in the light
of the circumstances under which they were made,
not misleading;
(ii) any failure by the Counterparty to deliver any
information, certification, accountants' consent or
other material or to assign the Derivative
Agreement when and as required under Section 2; or
(iii) any breach by the Counterparty of a representation
or warranty set forth in Section 3(a) and made as
of a date prior to the Closing Date, to the extent
that such breach is not cured by the Closing Date,
or any breach by the Counterparty of a
representation or warranty pursuant to Section 3 to
the extent made as of a date subsequent to the
Closing Date.
In the case of any failure of performance described in
clause (a)(ii) of this Section, the Counterparty shall
promptly reimburse the related Depositor and each Person
responsible for execution of a certification pursuant to
Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with
respect to the SPV, for all costs reasonably incurred by
each such party in order to obtain the information, report,
certification, accountants' consent or other material not
delivered as required by the Counterparty.
(b) The Depositor shall indemnify the Counterparty, each of its
officers and directors and each person who controls the
Counterparty (within the meaning of Section 15
6
of the Securities Act and Section 20 of the Exchange Act)
(each, a "Counterparty Indemnified Party"; and each of the
Countrywide Indemnified Party and the Counterparty
Indemnified Party shall be referred to as the "Indemnified
Party"), and shall hold each of them harmless from and
against any losses, damages, penalties, fines, forfeitures,
legal fees and expenses and related costs, judgments, and
any other costs, fees and expenses that any of them may
sustain arising out of or based upon any untrue statement or
alleged untrue statement of any material fact contained in
the Prospectus Supplement or any free writing prospectus
with respect to the related Securities or the omission or
alleged omission to state a material fact necessary in order
to make the statements therein not misleading; provided,
however, that the indemnity set forth in this Section 4(b)
shall not apply insofar as such losses, claims, expenses,
damages or liabilities (or actions in respect thereof) arise
out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in the
Company Information or the omission or alleged omission to
state in the Company Information a material fact necessary
in order to make the statements therein not misleading
and/or (ii) a breach of the representations set forth in
Sections 3(a) above.
(c) Promptly after the Indemnified Party receives notice of the
commencement of any such action, the Indemnified Party will,
if a claim in respect thereof is to be made pursuant to this
Agreement, promptly notify the indemnifying party in writing
of the commencement thereof. In case any such action is
brought against the Indemnified Party, and it notifies the
indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to appoint counsel of
the indemnifying party's choice at the indemnifying party's
expense to represent the Indemnified Party in any action for
which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by
the Indemnified Party except as set forth below); provided,
however, that such counsel shall be reasonably satisfactory
to the Indemnified Party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the
Indemnified Party in an action, the Indemnified Party shall
have the right to employ separate counsel (including local
counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel
if (i) the use of counsel chosen by the indemnifying party
to represent the Indemnified Party would present such
counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action
include both the Indemnified Party and the indemnifying
party, and the Indemnified Party shall have reasonably
concluded that there may be legal defenses available to it
that are different from or additional to those available to
the indemnifying party, (iii) the indemnifying party shall
not have employed counsel reasonably satisfactory to the
Indemnified Party to represent the Indemnified Party within
a reasonable time after notice of the institution of such
action or (iv) the indemnifying party shall authorize the
Indemnified Party to employ separate counsel at the expense
of the indemnifying party. The indemnifying party will not,
without the prior written consent of the Indemnified Party,
settle or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action,
suit or proceeding in respect of which
7
indemnification or contribution may be sought hereunder
(whether or not the Indemnified Party is an actual or
potential party to such claim or action) unless such
settlement, compromise or consent includes an unconditional
release of each Indemnified Party from all liability arising
out of such claim, action, suit or proceeding. In addition,
for so long as the indemnifying party is covering all costs
and expenses of the Indemnified Party as provided herein, no
Indemnified Party will settle or compromise or consent to
the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought
hereunder without the consent of the indemnifying party,
which consent shall not be unreasonably withheld.
(d) Nothing in this agreement shall be construed to allow the
Indemnified Party to recover punitive damages or
consequential damages from the indemnifying party.
(e) (i) Any failure by the Counterparty to deliver any
information, report, accountants' consent or other
material when and in any case only as required
under Section 2 or any breach by the Counterparty
of a representation or warranty set forth in
Section 3 and made as of a date prior to the
Closing Date, to the extent that such breach is not
cured by the Closing Date (or in the case of
information needed for purposes of printing the
Prospectus Supplement, the date of printing of the
Prospectus Supplement), or any breach by the
Counterparty of a representation or warranty
pursuant to Section 3 to the extent made as of a
date subsequent to such closing date, shall, except
as provided in clause (ii) of this paragraph,
immediately and automatically, without notice or
grace period, constitute an Additional Termination
Event (as defined in the Master Agreement) with the
Counterparty as the sole Affected Party (as defined
in the Master Agreement) under the Derivative
Agreement. Following such termination, a
termination payment (if any) shall be payable by
the applicable party as determined by the
application of Section 6(e)(ii) of the Master
Agreement, with Market Quotation and Second Method
being the applicable method for determining the
termination payment (notwithstanding anything in
the Derivative Agreement to the contrary).
(ii) If the Counterparty has failed to deliver any
information, report, or accountants' consent when
and as required under Section 2, which continues
unremedied for the lesser of ten calendar days
after the date on which such information, report,
or accountants' consent was required to be
delivered or such period in which the applicable
Exchange Act Report for which such information is
required can be timely filed (without taking into
account any extensions permitted to be filed), and
the Counterparty has not, at its own cost, within
the period in which the applicable Exchange Act
Report for which such information is required can
be timely filed caused another entity (which meets
any applicable ratings threshold in the Derivative
Agreement) to replace the Counterparty as party to
the Derivative Agreement that (i) has signed an
agreement with CHL and the
8
Depositors substantially in the form of this
Agreement, (ii) has agreed to deliver any
information, report, certification or accountants'
consent when and as required under Section 2 hereof
and (iii) is approved by the Depositor (which
approval shall not be unreasonably withheld) and
any rating agency, if applicable, on terms
substantially similar to the Derivative Agreement,
then an Additional Termination Event (as defined in
the Master Agreement) shall have occurred with the
Counterparty as the sole Affected Party. Following
such termination, a termination payment (if any)
shall be payable by the applicable party as
determined by the application of Section 6(e)(ii)
of the Master Agreement, with Market Quotation and
Second Method being the applicable method for
determining the termination payment
(notwithstanding anything in the Derivative
Agreement to the contrary).
(iii) In the event that the Counterparty or the SPV has
found a replacement entity in accordance with
Section 2(b)(ii), the Counterparty shall promptly
reimburse the SPV for all reasonable incidental
expenses incurred by the SPV, as such are incurred,
in connection with the termination of the
Counterparty as counterparty and the entry into a
new Derivative Instrument. The provisions of this
paragraph shall not limit whatever rights the SPV
may have under other provisions of this Agreement
or otherwise, whether in equity or at law, such as
an action for damages, specific performance or
injunctive relief.
Section 5. Miscellaneous.
(a) Construction. Throughout this Agreement, as the context
requires, (a) the singular tense and number includes the
plural, and the plural tense and number includes the
singular; (b) the past tense includes the present, and the
present tense includes the past; and (c) references to
parties, sections, schedules, and exhibits mean the parties,
sections, schedules, and exhibits of and to this Agreement.
The section headings in this Agreement are inserted only as
a matter of convenience, and in no way define, limit,
extend, or interpret the scope of this Agreement or of any
particular section.
(b) Assignment. None of the parties may assign their rights
under this Agreement without the prior written consent of
the other parties. Subject to the foregoing, this Agreement
shall be binding on and inure to the benefit of the parties
and their respective successors and permitted assigns.
(c) No Third-Party Benefits Except as Specified. None of the
provisions of this Agreement are intended to benefit, or to
be enforceable by, any third-party beneficiaries except the
related SPV and any trustee of an SPV or any Administrator.
9
(d) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State
of New York without regard to the conflict of laws
principles thereof.
(e) Amendment and Waiver. This Agreement may not be modified or
amended except by an instrument in writing signed by the
parties hereto. No waiver of any provision of this Agreement
or of any rights or obligations of any party under this
Agreement shall be effective unless in writing and signed by
the party or parties waiving compliance, and shall be
effective only in the specific instance and for the specific
purpose stated in that writing.
(f) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
(g) Additional Documents. Each party hereto agrees to execute
any and all further documents and writings and to perform
such other actions which may be or become reasonably
necessary or expedient to effectuate and carry out this
Agreement.
(h) Severability. Any provision hereof which is prohibited or
unenforceable shall be ineffective only to the extent of
such prohibition or unenforceability without invalidating
the remaining provisions hereof.
(i) Integration. This Agreement contains the entire
understanding of the parties with respect to the subject
matter hereof. There are no restrictions, agreements,
promises, representations, warranties, covenants or
undertakings with respect to the subject matter hereof other
than those expressly set forth or referred to herein. This
Agreement supersedes all prior agreements and understandings
between the parties with respect to its subject matter.
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IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of the
day and year first above written.
CWABS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name:
Title:
CWMBS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name:
Title:
CWALT, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name:
Title:
CWHEQ, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name:
Title:
COUNTRYWIDE HOME LOANS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name:
Title:
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BARCLAYS BANK PLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
12