SWAP CONTRACT ADMINISTRATION AGREEMENT
Exhibit
10.9
This
SWAP
CONTRACT ADMINISTRATION AGREEMENT, dated as of June 29, 2007 (this
“Agreement”), among THE BANK OF NEW YORK (“BNY”), as Swap Contract
Administrator (in such capacity, the “Swap Contract Administrator”) and
not in its individual or corporate capacity but solely as Trustee under the
Pooling and Servicing Agreement referred to below (in such capacity, the
“Trustee”), and COUNTRYWIDE HOME LOANS, INC. (“CHL”).
WHEREAS,
CHL is a party to three interest rate swap agreements, one between CHL and
BNP
Paribas (“BNP Paribas”) with a Trade Date of June 27, 2007 and a
reference number of 66785 (the “Class A-1-B Swap Contract”), one between
CHL and BNP Paribas with a Trade Date of June 27, 2007 and a reference number
of
66786 (the “Class A-2-B Swap Contract”) and one between CHL and Xxxxxx
Brothers Special Financing Inc. (“Xxxxxx” and, together with BNP Paribas,
each a “Counterparty”) with a Trade Date of June 27, 2007 and a reference
number of Global ID 3152133 (the “Certificate Swap Contract” and together
with the Class A-1-B Swap Contract and the Class A-2-B Swap Contract, the
“Swap Contracts” and each, a “Swap Contract”), copies of which are
attached to this Agreement as Exhibit A;
WHEREAS,
CWALT, Inc. is conveying certain mortgage loans and other related assets to
a
trust fund, Alternative Loan Trust 2007-OH2 (the “Trust Fund”) created
pursuant to a Pooling and Servicing Agreement, dated as of June 1, 2007 (the
“Pooling and Servicing Agreement”), among CWALT, Inc., as depositor, CHL,
as a seller, Park Granada LLC, as a seller, Park Monaco Inc., as a seller,
Park
Sienna LLC, as a seller, Countrywide Home Loans Servicing LP, as master
servicer, and the Trustee;
WHEREAS,
simultaneously with the execution and delivery of this Agreement, CHL is
assigning all of its rights, and delegating all of its duties and obligations
(other than, with respect to each Swap Contract, its obligation to make the
Additional Payment (as defined in each Swap Contract)), under the Swap Contracts
to the Swap Contract Administrator, pursuant to two separate assignment
agreements, each dated as of the date hereof (collectively, the “Assignment
Agreements”) among CHL, as assignor, the Swap Contract Administrator, as
assignee, and the applicable Counterparty;
WHEREAS,
the parties hereto desire that the Trustee make remittances to the Swap Contract
Administrator as contemplated by and to the extent provided in the Pooling
and
Servicing Agreement to cover payments due to the applicable Counterparty under
each Swap Contract;
WHEREAS,
CHL desires (i) that the Net Payments (as defined below) payable by Xxxxxx
under
the Certificate Swap Contract and the payments payable by BNP Paribas under
the
Class A-1-B Swap Contract and the Class A-2-B Swap Contract be distributed
to
the Trustee under the Pooling and Servicing Agreement to be applied for the
purposes specified in the Pooling and Servicing Agreement and (ii) that the
Excess Payments (as defined below) payable by Xxxxxx under the Certificate
Swap
Contract be distributed to CHL;
WHEREAS,
CHL and the Trustee desire to appoint the Swap Contract Administrator, and
the
Swap Contract Administrator desires to accept such appointment, to distribute
funds received under the Swap Contracts to the Trustee and to CHL as provided
in
this Agreement, and, in the case of a NIM Issuance, to distribute Excess
Payments in accordance with the related Swap Excess Assignment Agreement (each
as defined below).
NOW,
THEREFORE, in consideration of the mutual covenants contained in this Agreement,
and for other good and valuable consideration, the receipt and adequacy of
which
are hereby acknowledged, the parties agree as follows:
1. Definitions. Capitalized
terms used but not otherwise defined in this Agreement shall have the respective
meanings assigned thereto in the Pooling and Servicing Agreement.
Benefited
Certificates: With respect to (i) the Class A-1-B Swap Contract,
the Class A-1-B Certificates; (ii) the Class A-2-B Swap Contract, the Class
A-2-B Certificates; and (iii) the Certificate Swap Contract, the LIBOR
Certificates.
Certificate
Swap Administration Account: The separate account created and
maintained by the Swap Contract Administrator pursuant to Section 3 with a
depository institution in the name of the Swap Contract Administrator for the
benefit of Xxxxxx, CHL and the Trustee on behalf of the Holders of the related
Classes of Benefited Certificates and designated “The Bank of New York for
Countrywide Home Loans, Inc., Xxxxxx Brothers Special Financing Inc. and certain
registered Holders of CWALT, Inc., Mortgage Pass-Through Certificates, Series
2007-OH2”. Funds in the Certificate Swap Administration Account shall
be held for Xxxxxx, CHL and the Trustee on behalf of the Holders of the related
Classes of Benefited Certificates as set forth in this Agreement.
Class
A-1-B Swap Administration Account: The separate account created
and maintained by the Swap Contract Administrator pursuant to Section 3 with
a
depository institution in the name of the Swap Contract Administrator for the
benefit of BNP Paribas and the Trustee on behalf of the Holders of the related
Class of Benefited Certificates and designated “The Bank of New York for BNP
Paribas and certain registered Holders of CWALT, Inc., Mortgage Pass-Through
Certificates, Series 2007-OH2”. Funds in the Class A-1-B Swap
Administration Account shall be held for BNP Paribas and the Trustee on behalf
of the Holders of the related Class of Benefited Certificates as set forth
in
this Agreement.
Class
A-2-B Swap Administration Account: The separate account created
and maintained by the Swap Contract Administrator pursuant to Section 3 with
a
depository institution in the name of the Swap Contract Administrator for the
benefit of BNP Paribas and the Trustee on behalf of the Holders of the related
Class of Benefited Certificates and designated “The Bank of New York for BNP
Paribas and certain registered Holders of CWALT, Inc., Mortgage Pass-Through
Certificates, Series 2007-OH2”. Funds in the Class A-2-B Swap
Administration Account shall be held for BNP Paribas and the Trustee on behalf
of the Holders of the related Class of Benefited Certificates as set forth
in
this Agreement.
Excess
Payment: For any Distribution Date on or prior to the Certificate
Swap Contract Termination Date and as to which the Certificate Swap Contract
or
a replacement swap contract is in effect, an amount equal to the excess, if
any,
of (i) the Net Swap Payment (as defined in the Pooling and Servicing Agreement)
received by the Swap Contract Administrator from Xxxxxx with respect to the
Certificate Swap Contract and such Distribution Date over (ii) the Net Payment
for such Distribution Date. For any Distribution Date on or prior to
the Certificate Swap Contract Termination Date but only if neither the
Certificate Swap Contract nor a replacement swap contract is in effect,
zero. For any Distribution Date after the Certificate Swap Contract
Termination Date, an amount equal to all remaining funds on deposit in the
Certificate Swap Administration Account.
Indenture
Trustee: With respect to a NIM Issuance (if any), the indenture
trustee under the indenture pursuant to which the notes related to such NIM
Issuance are issued.
ISDA
Master Agreement: With respect to (i) the Certificate Swap
Contract, the 1992 ISDA Master Agreement (Multicurrency – Cross Border),
including the Schedule and Credit Support Annex thereto, dated June 29, 2007,
between Xxxxxx and the Swap Contract Administrator and (ii) the Class A-1-B
Swap
Contract and the Class A-2-B Swap Contract, the 1992 ISDA Master Agreement
(Multicurrency – Cross Border), including the Schedule and Credit Support Annex
thereto, dated June 29, 2007, between BNP Paribas and the Swap Contract
Administrator.
Net
Payment: With respect to any Distribution Date on or prior to the
Certificate Swap Contract Termination Date, an amount equal to the sum of (i)
any Current Interest and Interest Carry Forward Amounts in respect of the
related Classes of Benefited Certificates, (ii) any Net Rate Carryover in
respect of the related Classes of Benefited Certificates, (iii) any Unpaid
Realized Loss Amounts in respect of the related Classes of Benefited
Certificates and the Class A-1-B Swap Principal Amount and Class A-2-B Swap
Principal Amount (iv) any remaining Overcollateralization Deficiency Amount,
in
each case remaining unpaid following the distribution to the related Classes
of
Benefited Certificates and the Class A-1-B Swap Principal Amount and Class
A-2-B
Swap Principal Amount of Excess Cashflow pursuant to Section 4.02(c)(1) through
(4) of the Pooling and Servicing Agreement. With respect to any
Distribution Date after the Certificate Swap Contract Termination Date,
zero.
NIM
Issuance: An issuance by a NIM Trust, on or after the date
hereof, of asset-backed notes secured by the Class C Certificates and/or Class
P
Certificates.
NIM
Trust: A Delaware statutory trust or other special-purpose entity
that is the issuer of the securities issued in connection with a NIM Issuance
(if any).
Responsible
Officer: When used with respect to the Swap Contract
Administrator, any Vice President, any Assistant Vice President, the Secretary,
any Assistant Secretary, any Trust Officer or any other officer of the Swap
Contract Administrator customarily performing functions similar to those
performed by any of the above designated officers and also to whom, with respect
to a particular matter, such matter is referred because of such officer’s
knowledge of and familiarity with the particular subject.
Swap
Administration Account: The Certificate Swap Administration
Account, the Class A-1-B Swap Administration Account or the Class A-2-B Swap
Administration Account, as applicable.
Swap
Excess Assignment Agreement: With respect to a NIM Issuance (if
any), an agreement executed on or after the date hereof by CHL, the related
NIM
Trust and the Swap Contract Administrator (in form and substance reasonably
satisfactory to the Swap Contract Administrator), pursuant to which rights
to
receive certain portions of Excess Payments shall be assigned to such NIM Trust
and pursuant to which the Swap Contract Administrator shall agree to distribute
Excess Payments to the related Indenture Trustee and CHL (in accordance with
the
terms of such agreement).
2. Appointment
of Swap Contract Administrator.
CHL
and
the Trustee hereby appoint BNY to serve as Swap Contract Administrator pursuant
to this Agreement and pursuant to the related Swap Excess Assignment Agreement
(if any). The Swap Contract Administrator accepts such appointment
and acknowledges the transfer and assignment to it of CHL’s rights and
obligations under each Swap Contract pursuant to the Assignment
Agreements. The Swap Contract Administrator agrees to exercise the
rights referred to above for the benefit of CHL, the Trustee and each
Counterparty and to perform the duties set forth in this
Agreement. In the event of a NIM Issuance, the Swap Contract
Administrator further agrees to perform the duties set forth in the related
Swap
Excess Assignment Agreement for the benefit of CHL, the related NIM Trust and
the related Indenture Trustee.
3. Receipt
of Funds; Swap Administration Accounts.
The
Swap
Contract Administrator hereby agrees to receive (i) on behalf of CHL and the
Trustee, all amounts paid by Xxxxxx under the Certificate Swap Contract, (ii)
on
behalf of the Trustee, all amounts paid by BNP Paribas under the Class A-1-B
Swap Contract, (iii) on behalf of the Trustee, all amounts paid by BNP Paribas
under the Class A-2-B Swap Contract and (iv) on behalf of each Counterparty,
all
applicable amounts remitted by the Trustee pursuant to the Pooling and Servicing
Agreement for payment to each Counterparty under each Swap
Contract.
The
Swap
Contract Administrator shall establish and maintain a Certificate Swap
Administration Account into which the Swap Contract Administrator shall deposit
or cause to be deposited on the Business Day of receipt, (x) all amounts
remitted by the Trustee for payment to Xxxxxx pursuant to the Certificate Swap
Contract and (y) all amounts payable by Xxxxxx under the Certificate Swap
Contract. All funds deposited in the Certificate Swap Administration
Account shall be held for the benefit of Xxxxxx, CHL and the Trustee on behalf
of the Holders of the related Classes of Benefited Certificates until withdrawn
in accordance with Section 4.
The
Swap
Contract Administrator shall establish and maintain a Class A-1-B Swap
Administration Account into which the Swap Contract Administrator shall deposit
or cause to be deposited on the Business Day of receipt, (x) all amounts
remitted by the Trustee for payment to BNP Paribas pursuant to the Class A-1-B
Swap Contract and (y) all amounts payable by BNP Paribas under the Class A-1-B
Swap Contract. All funds deposited in the Class A-1-B Swap
Administration Account shall be held for the benefit of BNP Paribas and the
Trustee on behalf of the Holders of the related Class of Benefited Certificates
until withdrawn in accordance with Section 4.
The
Swap
Contract Administrator shall establish and maintain a Class A-2-B Swap
Administration Account into which the Swap Contract Administrator shall deposit
or cause to be deposited on the Business Day of receipt, (x) all amounts
remitted by the Trustee for payment to BNP Paribas pursuant to the Class A-2-B
Swap Contract and (y) all amounts payable by BNP Paribas under the Class A-2-B
Swap Contract. All funds deposited in the Class A-2-B Swap
Administration Account shall be held for the benefit of BNP Paribas and the
Trustee on behalf of the Holders of the related Class of Benefited Certificates
until withdrawn in accordance with Section 4.
Each
Swap
Administration Account shall be an “Eligible Account” as defined in the Pooling
and Servicing Agreement. Funds in each Swap Administration Account
shall remain uninvested.
The
Swap
Contract Administrator shall give at least 30 days advance notice to the related
Counterparty, CHL (in the case of the Certificate Swap Administration Account)
and the Trustee of any proposed change of location of a Swap Administration
Account prior to any change thereof.
4. Calculations;
Distribution of Payments; Delivery of Notices.
The
Swap
Contract Administrator hereby agrees to make payments with respect to each
Swap
Contract based on the information provided by the Trustee and the related
Counterparty, and the Swap Contract Administrator shall, absent manifest error,
be entitled to rely on information provided by the Trustee and the
Counterparty.
(i)
On
the Business Day of receipt of any payment from BNP Paribas with respect to
the
Class A-1-B Swap Contract, the Swap Contract Administrator shall withdraw the
amount of such payment from the Class A-1-B Swap Administration Account and
distribute such payment to the Trustee for deposit into the Class A-1-B Swap
Account;
(ii)
On
the Business Day of receipt of any payment from BNP Paribas with respect to
the
Class A-2-B Swap Contract, the Swap Contract Administrator shall withdraw the
amount of such payment from the Class A-2-B Swap Administration Account and
distribute such payment to the Trustee for deposit into the Class A-2-B Swap
Account; and
(iii)
On
the Business Day of receipt of any payment from Xxxxxx with respect to the
Certificate Swap Contract, the Swap Contract Administrator shall withdraw the
amount of such payment from the Certificate Swap Administration Account and
distribute such amount sequentially, as follows:
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(a)
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first,
to the Trustee for deposit into the Certificate Swap Account, the
applicable Net Payment; and
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(b)
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second,
to CHL, the applicable Excess Payment, in accordance with the following
wiring instructions:
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Bank:
Bank of New York
Account
Name: Countrywide Home Loans
Account
No: 8900038632
ABA
No: 000000000
REF:
CWALT 2007-OH2 X’S
SwapPyt
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On
the
Business Day of receipt of any payment from the Trustee for payment to the
applicable Counterparty under the Certificate Swap Contract, the Class A-1-B
Swap Contract or the Class A-2-B Swap Contract, as applicable, the Swap Contract
Administrator shall withdraw the amount of such payment from the applicable
Swap
Administration Account and distribute such amounts to the Counterparty in
accordance with the wiring instructions specified in the related Swap
Contract.
The
Swap
Contract Administrator shall prepare and deliver any notices required to be
delivered under each Swap Contract.
On
the
Business Day of receipt of any notices, information or reports received by
the
Swap Contract Administrator from a Counterparty, the Swap Contract Administrator
shall provide the same to the Trustee, including without limitation information
regarding any Net Swap Payment or Swap Termination Payment that will be payable
by the Swap Contract Administrator to a Counterparty under a Swap Contract
with
respect to the next Distribution Date.
5. Control
Rights; Delivery Amounts; Replacement Swap Contract.
The
Trustee shall have the right to direct the Swap Contract Administrator with
respect to the exercise of any right under a Swap Contract and the related
ISDA
Master Agreement (such as the right to designate an Early Termination Date
following an Event of Default or Termination Event (each such term as defined
in
the related ISDA Master Agreement)).
If
the
obligations of a Counterparty are, or shall become, guaranteed pursuant to
the
guarantee of any party (whether an affiliate of that Counterparty or otherwise),
then the Swap Contract Administrator shall promptly demand in accordance with
the terms of the guarantee from such guarantor all amounts payable or
deliverable by that Counterparty under the related ISDA Master Agreement in
the
event that the Counterparty fails to make timely payment or delivery of such
amounts.
Upon
the
occurrence of a Collateral Event (as defined in the applicable ISDA Master
Agreement), the Swap Contract Administrator, at the direction of the Trustee,
shall (i) demand delivery of the Delivery Amount (as defined in the applicable
ISDA Master Agreement) from the Counterparty on each Valuation Date (as defined
in the applicable ISDA Master Agreement), if applicable, (ii) deliver to the
Counterparty the Return Amount (as defined in the applicable ISDA Master
Agreement) on each Valuation Date, if applicable, as well as Distributions
and
the Interest Amount (each, as defined in the applicable ISDA Master Agreement)
and (iii) take such other action required under the applicable ISDA Master
Agreement. If a Delivery Amount is demanded under an ISDA Master
Agreement, the Swap Contract Administrator shall establish an account to hold
cash or other eligible investments pledged under that ISDA Master
Agreement. Any such account shall be a segregated account meeting the
requirements set forth in the ISDA Master Agreement. Any cash or
other Eligible Collateral (as defined in the applicable ISDA Master Agreement)
pledged under that ISDA Master Agreement shall not be part of the applicable
Swap Administration Account unless they are applied in accordance with the
applicable ISDA Master Agreement to make a payment due to the Swap Contract
Administrator pursuant to the applicable Swap Contract.
In
the
event that a Swap Contract is terminated, CHL shall assist the Swap Contract
Administrator in procuring a replacement swap contract with terms that are
substantially the same as those of the original Swap Contract, and the Swap
Contract Administrator shall enter into a replacement swap contract procured
by
CHL or the related Counterparty and continue to serve as Swap Contract
Administrator pursuant to the terms hereof. Any Swap Termination
Payment received from a Counterparty shall be used to pay any upfront amount
required under any replacement swap contract, and any excess shall be
distributed to CHL. In the event that a replacement swap contract
cannot be procured, any Swap Termination Payment received from a Counterparty
in
respect of the termination of the original Swap Contract shall be held in the
related Swap Administration Account and distributed as provided in Section
4 and
the Pooling and Servicing Agreement.
In
the
event that a replacement swap is procured and the replacement counterparty
pays
an upfront amount to the Swap Contract Administrator in connection with the
execution of the replacement swap contract, then (i) if that upfront amount
is
not received prior to the Distribution Date on which any Swap Termination
Payment was due to the related Counterparty under the original Swap Contract,
that upfront amount shall be held in the related Swap Administration Account
and
distributed as provided in Section 4 and the Pooling and Servicing Agreement,
and (ii) if that upfront amount is received prior to the Distribution Date
on
which any Swap Termination Payment is due to the related Counterparty under
the
original Swap Contract, the Swap Contract Administrator shall remit to the
Trustee, to be included in Interest Funds, the portion of such upfront amount
equal to the lesser of (x) such upfront amount and (y) the amount of the Swap
Termination Payment due to the related Counterparty under the original Swap
Contract. Any upfront amount paid by a replacement counterparty that
is not remitted by the Swap Contract Administrator to the Trustee pursuant
to
clause (ii) of the preceding sentence shall be distributed to CHL.
6. Representations
and Warranties of the Swap Contract Administrator. The Swap
Contract Administrator represents and warrants as follows:
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(a)
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BNY
is duly organized and validly existing as a banking corporation under
the
laws of the State of New York and has all requisite power and authority
to
execute and deliver this Agreement and to perform its obligations
as Swap
Contract Administrator under this
Agreement.
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(b)
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The
execution, delivery and performance of this Agreement by BNY as Swap
Contract Administrator has been duly authorized by
BNY.
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(c)
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This
Agreement has been duly executed and delivered by BNY as Swap Contract
Administrator and is enforceable against BNY in accordance with its
terms,
except as enforceability may be affected by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws
relating to or affecting creditors’ rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law).
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7. Certain
Matters Concerning the Swap Contract Administrator.
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(a)
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The
Swap Contract Administrator shall undertake to perform such duties
and
only such duties as are specifically set forth in this
Agreement.
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(b)
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No
provision of this Agreement shall be construed to relieve the Swap
Contract Administrator from liability for its own grossly negligent
action, its own grossly negligent failure to act or its own willful
misconduct, its grossly negligent failure to perform its obligations
in
compliance with this Agreement, or any liability that would be imposed
by
reason of its willful misfeasance or bad faith; provided
that:
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(i)
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the
duties and obligations of the Swap Contract Administrator shall be
determined solely by the express provisions of this Agreement, the
Swap
Contract Administrator shall not be liable, individually or as Swap
Contract Administrator, except for the performance of such duties
and
obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against
the
Swap Contract Administrator and the Swap Contract Administrator may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or opinions
furnished to the Swap Contract Administrator and conforming to the
requirements of this Agreement that it reasonably believed in good
faith
to be genuine and to have been duly executed by the proper authorities
respecting any matters arising
hereunder;
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(ii)
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the
Swap Contract Administrator shall not be liable, individually or
as Swap
Contract Administrator, for an error of judgment made in good faith
by a
Responsible Officer or Responsible Officers of the Swap Contract
Administrator, unless the Swap Contract Administrator was grossly
negligent or acted in bad faith or with willful misfeasance;
and
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(iii)
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the
Swap Contract Administrator shall not be liable, individually or
as Swap
Contract Administrator, with respect to any action taken, suffered
or
omitted to be taken by it in good faith in accordance with the direction
of the Trustee or CHL, or exercising any power conferred upon the
Swap
Contract Administrator under this
Agreement.
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(c)
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Except
as otherwise provided in Sections 7(a) and
7(b):
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(i)
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the
Swap Contract Administrator may request and rely upon and shall be
protected in acting or refraining from acting upon any resolution,
officer’s certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order,
appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or
parties;
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(ii)
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the
Swap Contract Administrator may consult with counsel and any opinion
of
counsel shall be full and complete authorization and protection in
respect
of any action taken or suffered or omitted by it hereunder in good
faith
and in accordance with such opinion of
counsel;
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(iii)
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the
Swap Contract Administrator shall not be liable, individually or
as Swap
Contract Administrator, for any action taken, suffered or omitted
by it in
good faith and believed by it to be authorized or within the discretion
or
rights or powers conferred upon it by this
Agreement;
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(iv)
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the
Swap Contract Administrator shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order,
approval, bond or other paper or document, unless requested in writing
so
to do by a Counterparty, CHL or the Trustee; provided, however, that
if
the payment within a reasonable time to the Swap Contract Administrator
of
the costs, expenses or liabilities likely to be incurred by it in
the
making of such investigation is, in the opinion of the Swap Contract
Administrator not reasonably assured to the Swap Contract Administrator
by
a Counterparty, CHL and/or the Trustee, the Swap Contract Administrator
may require reasonable indemnity against such expense, or liability
from a
Counterparty, CHL and/or the Trustee, as the case may be, as a condition
to taking any such action; and
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(v)
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the
Swap Contract Administrator shall not be required to expend its own
funds
or otherwise incur any financial liability in the performance of
any of
its duties hereunder if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such liability
is not assured to it.
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(d)
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CHL
covenants and agrees to pay or reimburse the Swap Contract Administrator,
upon its request, for all reasonable expenses and disbursements incurred
or made by the Swap Contract Administrator in accordance with any
of the
provisions of this Agreement except any such expense or disbursement
as
may arise from its negligence, bad faith or willful
misconduct. The Swap Contract Administrator and any director,
officer, employee or agent of the Swap Contract Administrator shall
be
indemnified by CHL and held harmless against any loss, liability
or
expense incurred in connection with any legal action relating to
this
Agreement, the Swap Contracts or the Assignment Agreements, or in
connection with the performance of any of the Swap Contract
Administrator’s duties hereunder or thereunder, other than any loss,
liability or expense incurred by reason of willful misfeasance, bad
faith
or negligence in the performance of any of the Swap Contract
Administrator’s duties hereunder or thereunder. Such indemnity
shall survive the termination of this Agreement or the resignation
of the
Swap Contract Administrator hereunder and under the Swap Contracts
and the
Assignment Agreements. Notwithstanding anything to the contrary
in this Section 7, any expenses, disbursements, losses or liabilities
of
the Swap Contract Administrator or any director, officer, employee
or
agent thereof that are made or incurred as a result of any request,
order
or direction of any NIM Insurer or any of the Certificateholders
made to
the Trustee as contemplated by Section 8.02(ix) of the Pooling and
Servicing Agreement and consequently made to the Swap Contract
Administrator by the Trustee shall be payable by the Trustee out
of the
security or indemnity provided by any NIM Insurer or such
Certificateholders pursuant to Section 8.02(ix) of the Pooling and
Servicing Agreement.
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(e)
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Upon
the resignation of BNY as Trustee in accordance with the Pooling
and
Servicing Agreement, (i) BNY shall resign and be discharged from
its
duties as Swap Contract Administrator hereunder and (ii) the Person
that
succeeds BNY as Trustee shall be appointed as successor Swap Contract
Administrator hereunder upon its execution, acknowledgement and delivery
of the instrument accepting such appointment in accordance with Section
8.08 of the Pooling and Servicing Agreement, whereupon the duties
of the
Swap Contract Administrator hereunder shall pass to such
Person. In addition, upon the appointment of a successor
Trustee under the Pooling and Servicing Agreement, such successor
Trustee
shall succeed to the rights of the Trustee
hereunder.
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(f)
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In
the event of a NIM Issuance, nothing in this Section 7 shall limit
or
otherwise modify or affect the rights, duties or obligations of the
Swap
Contract Administrator under the related Swap Excess Assignment
Agreement.
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8. Miscellaneous.
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(a)
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This
Agreement shall be governed by and construed in accordance with the
laws
of the State of New York.
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(b)
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Each
of BNY and CHL hereby irrevocably waives, to the fullest extent permitted
by applicable law, any and all right to trial by jury in any legal
proceedings arising out of or relating to this
Agreement.
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(c)
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Each
Counterparty shall be an express third party beneficiary of this
Agreement
for the purpose of enforcing the provisions hereof to the extent
of that
Counterparty’s rights explicitly specified herein as if a party
hereto.
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(d)
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This
Agreement shall terminate upon the termination of the Swap Contracts
and
the disbursement by the Swap Contract Administrator of all funds
received
under the Swap Contracts to CHL and the Trustee on behalf of the
Holders
of the Benefited Certificates.
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(e)
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This
Agreement may be amended, supplemented or modified in writing by
the
parties hereto, provided that no amendment shall adversely affect
in any
material respect a Counterparty without the prior written consent
of that
Counterparty, which consent shall not be unreasonably
withheld.
|
|
(f)
|
This
Agreement may be executed by one or more of the parties to this Agreement
on any number of separate counterparts (including by facsimile
transmission), and all such counterparts taken together shall be
deemed to
constitute one and the same
instrument.
|
|
(g)
|
Any
provision of this Agreement which is prohibited or unenforceable
in any
jurisdiction shall, as to such jurisdiction, be ineffective to the
extent
of such prohibition or unenforceability without invalidating the
remaining
provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
|
|
(h)
|
The
representations and warranties made by the parties to this Agreement
shall
survive the execution and delivery of this Agreement. No act or omission
on the part of any party hereto shall constitute a waiver of any
such
representation or warranty.
|
|
(i)
|
The
article and section headings in this Agreement are for convenience
of
reference only, and shall not limit or otherwise affect the meaning
of
this Agreement.
|
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and
delivered as of the day and year first above written.
|
THE
BANK OF NEW YORK,
as
Swap Contract Administrator
|
|||
|
|
By:
|
/s/ Xxxxxxxx Xxxxxx | |
| Name: Xxxxxxxx X. Xxxxxx | |||
| Title: Vice President | |||
|
THE
BANK OF NEW YORK,
not
in its individual or corporate capacity but solely as
Trustee
|
|||
|
|
By:
|
/s/ Xxxxxxxx Xxxxxx | |
| Name: Xxxxxxxx X. Xxxxxx | |||
| Title: Vice President | |||
| COUNTRYWIDE HOME LOANS, INC. | |||
|
|
By:
|
/s/ Xxxxxxx Xxxxxxxxxxxx | |
| Name: Xxxxxxx Xxxxxxxxxxxx | |||
| Title: Managing Director | |||
EXHIBIT
A
SWAP
CONTRACTS
A-1
