EXHIBIT 99.10
The Schedule to the ISDA Master Agreement
SCHEDULE
to the
Master Agreement
dated as of June 29, 2006
between
BANK OF NEW YORK , NOT IN ITS INDIVIDUAL
OR CORPORATE CAPACITY BUT SOLELY AS SWAP
and CONTRACT ADMINISTRATOR FOR CWALT, INC.
CREDIT SUISSE INTERNATIONAL ALTERNATIVE LOAN TRUST 2006-OC5 PURSUANT
TO A SWAP CONTRACT ADMINISTRATION
AGREEMENT
----------------------------- ----------------------------------------
("Party A") ("Party B")
Part 1
Termination Provisions.
(a) "Specified Entity" means in relation to Party A for the purpose of:
Section 5(a)(v), Not Applicable
Section 5(a)(vi), Not Applicable
Section 5(a)(vii), Not Applicable
Section 5(b)(iv), Not Applicable
and in relation to Party B for the purpose of:
Section 5(a)(v), Not Applicable
Section 5(a)(vi), Not Applicable
Section 5(a)(vii), Not Applicable
Section 5(b)(iv), Not Applicable
(b) "Specified Transaction" will have the meaning specified in Section 14 of
this Agreement.
(c) Certain Events of Default. The following Events of Default will apply to
the parties as specified below, and the definition of "Event of Default"
in Section 14 is deemed to be modified accordingly:
Section 5(a)(i) (Failure to Pay or Deliver) will apply to Party A
and Party B.
Section 5(a)(ii) (Breach of Agreement) will not apply to Party A
or Party B.
Section 5(a)(iii) (Credit Support Default) will apply to Party A
and will not apply to Party B, unless Party A has posted
collateral under the Credit Support Annex, in which case it will
apply to Party B.
Section 5(a)(iv) (Misrepresentation) will not apply to Party A or
Party B.
Section 5(a)(v) (Default under Specified Transaction) will not
apply to Party A or Party B.
Section 5(a)(vi) (Cross Default) will not apply to Party A or
Party B.
Section 5(a)(vii) (Bankruptcy) will apply to Party A and Party B;
provided that clause (2) thereof shall not apply to Party B.
Section 5(a)(viii) (Merger without Assumption) will apply to Party
A and will not apply to Party B.
(d) Termination Events. The following Termination Events will apply to the
parties as specified below:
Section 5(b)(i) (Illegality) will apply to Party A and Party B.
Section 5(b)(ii) (Tax Event) will apply to Party A and Party B.
Section 5(b)(iii) (Tax Event upon Merger) will apply to Party A
and Party B.
Section 5(b)(iv) (Credit Event upon Merger) will not apply to
Party A or Party B.
(e) The "Automatic Early Termination" provision of Section 6(a) of this
Agreement will not apply to Party A or Party B.
(f) Payments on Early Termination. For the purpose of Section 6(e) of this
Agreement:
(i) Loss will apply.
(ii) The Second Method will apply.
(g) "Termination Currency" means United States Dollars.
(h) Additional Termination Events. The following Additional Termination
Events will apply, in each case with respect to Party B as the sole
Affected Party (unless otherwise provided below):
(i) Party A fails to comply with the Downgrade Provisions as set forth
in Part 5(b). For all purposes of this Agreement, Party A shall be
the sole Affected Party with respect to the occurrence of a
Termination Event described in this Part 1(h)(i).
(ii) The Pooling and Servicing Agreement (as defined in Part 5 below)
is amended or modified without the prior written consent of Party
A, where such consent is required by Section 10.01 of the PSA.
(iii) The termination of the Trust pursuant to Article IX of the PSA.
(iv) Party A has failed to comply with the requirements of Section 2(c)
of the Regulation AB Agreement (as defined in Part 5(r) below), in
which case Party A shall be the sole Affected Party.
Part 2
Tax Representations.
(a) Payer Representations. For the purpose of Section 3(e) of this
Agreement, Party A will make the following representation and Party B
will make 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 representations made by the other party pursuant to
Section 3(f) of this Agreement, (ii) the satisfaction of the agreement
contained in Section 4(a)(i) or 4(a)(iii) of this Agreement and the
accuracy and effectiveness of any document provided by the other party
pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement and (iii) the
satisfaction of the agreement of the other party contained in Section
4(d) of this Agreement, provided that it shall not be a breach of this
representation where reliance is placed on clause (ii) and the other
party does not deliver a form or document under Section 4(a)(iii) of
this Agreement by reason of material prejudice to its legal or
commercial position.
(b) Payee Representations. For the purpose of Section 3(f) of this
Agreement, Party A and Party B make the representations specified below,
if any:
(i) Party A makes the following representation to Party B:
(A) Party A is entering into each Transaction in the ordinary
course of its trade as, and is, a recognized UK bank as
defined in Section 840A of the UK Income and Corporation
Taxes Act of 1988.
(B) Party A has been approved as a Withholding Foreign
Partnership by the US Internal Revenue Service.
(C) Party A's Withholding Foreign Partnership Employer
Identification Number is 00-0000000.
(D) Party A is a partnership that agrees to comply with any
withholding obligation under Section 1446 of the Internal
Revenue Code.
(ii) Party B makes no representations for the purpose of Section 3(f)
of this Agreement.
Part 3
Agreement to Deliver Documents.
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver the following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are:--
Party Form/Document/Certificate Date by which to be delivered
required
to deliver
document
Party A U.S. Internal Revenue Service (i) Before the first Payment
Form W-8IMY or successor forms Date under this Agreement,
thererto. such form to be updated
at the beginning of each
succeeding three-calendar-
year period after the first
Date, (ii) promptly upon
Payment reasonable demand by
Party B; and (iii) promptly
upon learning that any such
form previously provided has
become obsolete or incorrect.
(b) Other documents to be delivered are:--
Party Form/Document/Certificate Date by which Covered by
required to be delivered Section 3(d)
to deliver Representation
document
Party A and Certified copy of the board of Concurrently Yes
Party B directors resolution (or with the
equivalent authorizing execution and
documentation) which sets forth delivery of
the authority of each this agreement
signatory to this delivery
of this Agreement and each
Credit Support Document (if
any) signing on its behalf
and the authority of such
party to enter into
Transactions contemplated and
performance of its obligations
hereunder.
Party A and Incumbency certificate (or, if Concurrently Yes
Party B available the current with the
authorized signature book or execution and
with the equivalent authorizing delivery of this
documentation)specifying the Agreement unless
names, titles, authority and previously
specimen signatures of the delivered and
persons authorized to execute still in full
this Agreement which sets force and effect.
forth the specimen signatures
of each signatory to this
Agreement, each Confirmation
and each Credit Support
Document (if any) signing on
its behalf.
Party A and An opinion of counsel as to the Concurrently with No
B enforceability of this the execution and
Agreement that is reasonably delivery of the
satisfactory in form and Confirmation
substance to the other party. unless previously
delivered and
still in full
force and
effect.
Party B An opinion of counsel to Party Upon execution of No
B covering the authorization this agreement
and due execution of this
Agreement by Party B
Party B An executed copy of the PSA. Within 30 days Yes
after the date
of this
Agreement.
Party A A copy of the annual report of Upon request. Yes
such party containing audited
financial statements for such
fiscal year certified by
independent public accountants
in accordance with generally
accepted accounting principles
consistently applied.
Party A For its most recent fiscal Upon request. Yes
quarter, a copy of the
unaudited financial statements
of such party, prepared in
accordance with generally
accepted accounting principles
consistently applied.
Part 4.
Miscellaneous.
(a) Addresses for Notices. For the purposes of Section 12(a) of this
Agreement:
Party A:
(1) Address for notices or communications to Party A (other than by
facsimile):
Address: One Cabot Square Attention: (1) Head of Credit Risk Management;
Xxxxxx X00 0XX (2) Managing Director -
England Operations Department;
(3) Managing Director - Legal Department
Telex No.: 264521 Answerback: CSI G
(For all purposes.)
(2) For the purpose of facsimile notices or communications under this
Agreement (other than a notice or communication under Section 5 or
6):-
Facsimile No.: 44 20 7888 2686
Attention: Managing Director - Legal Department
Telephone number for oral confirmation of receipt of facsimile in
legible form: 44 20 7888 2028
Designated responsible employee for the purposes of Section
12(a)(iii): Senior Legal Secretary
Party B:
Address for notices or communications to Party B:
Address: The Bank of New York
000 Xxxxxxx Xxxxxx-0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust MBS Administration, CWALT, Series 2006-OC5
Facsimile: 000-000-0000
Phone: 000-000-0000
(b) Process Agent. For the purposes of Section 13(c) of this Agreement:
Party A appoints as its Process Agent:
Credit Suisse Securities (USA) LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Legal and Compliance Department
Party B appoints as its Process Agent: Not applicable.
(c) Offices. With respect to Party A, the provisions of Section 10(a) will
apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of this Agreement:
Party A is not a Multibranch Party. Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Party A; provided , however,
that if an Event of Default occurs with respect to Party A, the Party B
shall be entitled to appoint a financial institution that would qualify
as a Reference Market-maker to act as Calculation Agent.
(f) Credit Support Document. Credit Support Document means:-
With respect to Party A: The Credit Support Annex.
With respect to Party B: The Credit Support Annex.
(g) Credit Support Provider.
Credit Support Provider means in relation to Party A: Not applicable.
Credit Support Provider means in relation to Party B: Not applicable.
(h) Governing Law. This Agreement and, to the fullest extent permitted by
applicable law, all matters arising out of or relating in any way to
this Agreement will be governed by and construed in accordance with the
laws of the State of New York (without reference to choice of law
doctrine other than New York General Obligation Law Sections 5-1401 and
5-1402).
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) of this Agreement
will apply to all Transactions.
(j) "Affiliate." Each of Party A and Party B shall be deemed to have no
Affiliates.
Part 5.
Other Provisions.
(a) Definitions.
Unless otherwise specified in a Confirmation, this Agreement and each
Transaction between the parties are subject to the 2000 ISDA Definitions as
published by the International Swaps and Derivatives Association, Inc. (the
"2000 Definitions"), and will be governed in all relevant respects by the
provisions set forth in the 2000 Definitions, without regard to any amendment
to the 2000 Definitions subsequent to the date hereof. The provisions of the
2000 Definitions are incorporated by reference in and shall be deemed a part
of this Agreement, except that references in the 2000 Definitions to a "Swap
Transaction" shall be deemed references to a "Transaction" for purposes of
this Agreement.
Capitalized terms used in this Agreement that are not defined herein and are
defined in the Pooling and Servicing Agreement shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
(b) Pooling and servicing Agreement
References to the "Pooling and Services Agreement" or "PSA" are to the pooling
and servicing agreement dated as of June 1, 2006 among CWALT, Inc., as
depositor, Countrywide Home Loans, Inc., 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 Bank of New
York, as trustee.
The parties to the PSA have agreed not to amend or modify the PSA without
obtaining the prior written consent of Party A (such consent not to be
unreasonably withheld by Party A), where such consent is required by Section
10.01 of the PSA.
(c) Downgrade Provisions.
(1) It shall be a collateralization event (Collateralization Event) if:
(A) (i) the unsecured, unguaranteed and otherwise unsupported
long-term senior debt obligations of Party A are rated below "A1" by
Xxxxx'x Investors Service, Inc. (Moody's) or are rated "A1" by
Moody's and such rating is on watch for possible downgrade (but only
for so long as it is on watch for possible downgrade) and (ii) the
unsecured, unguaranteed and otherwise unsupported short-term debt
obligations of Party A are rated below "P-1" by Moody's or are rated
"P-1" by Moody's and such rating is on watch for possible downgrade
(but only for so long as it is on watch for possible downgrade),
(B) no short-term rating is available from Moody's and the unsecured,
unguaranteed and otherwise unsupported long-term senior debt
obligations of Party A are rated below "Aa3" by Moody's or are rated
"Aa3" by Moody's and such rating is on watch for possible downgrade
(but only for so long as it is on watch for possible downgrade),
(C) either (i) the unsecured, unguaranteed and otherwise unsupported
short-term debt obligations of Party A are rated below "A-1" by
Standard & Poor's Rating Services, a division of The XxXxxx-Xxxx
Companies, Inc. (S&P) or (ii) if Party A does not have a short-term
rating from S&P, the unsecured, unguaranteed and otherwise
unsupported long-term senior debt obligations of Party A are rated
below "A+" by S&P, or
(D) either (i) the unsecured, unguaranteed and otherwise unsupported
long-term senior debt obligations of Party A are rated below "A" by
Fitch, Inc. (Fitch), or (ii) the unsecured, unguaranteed and
otherwise unsupported short-term debt obligations of Party A are
rated below "F-1" by Fitch.
During any period in which a Collateralization Event is occurring, Party A
shall, at its own expense and within thirty (30) calendar days of such
Collateralization Event, either (i) post collateral according to the terms
of the 1994 ISDA Credit Support Annex to this Schedule, including Paragraph
13 thereof (the "Credit Support Annex"), (ii) furnish a guarantee of Party
A's obligations under this Agreement that is subject to the satisfaction of
the S&P Ratings Condition from a guarantor that satisfies the Hedge
Counterparty Ratings Requirement (as defined herein), or (iii) obtain a
substitute counterparty (and provide prior written notice to each Rating
Agency with respect thereto) that (a) is reasonably acceptable to Party B,
(b) satisfies the Hedge Counterparty Ratings Requirement and (c) assumes
the obligations of Party A under this Agreement (through an assignment and
assumption agreement in form and substance reasonably satisfactory to Party
B) or replaces the outstanding Transactions hereunder with transactions on
identical terms, except that Party A shall be replaced as counterparty,
provided that such substitute counterparty, as of the date of such
assumption or replacement, must not, as a result thereof, be required to
withhold or deduct on account of tax under the Agreement or the new
transactions, as applicable, and such assumption or replacement must not
lead to a termination event or event of default occurring in respect of the
new transactions, as applicable, provided further, that satisfaction of the
S&P Ratings Condition shall be required for any transfer of any
Transactions under this clause (iii) unless such transfer is in connection
with the assignment and assumption of this Agreement by such substitute
counterparty without modification of its terms, other than the following
terms: party name, dates relevant to the effective date of such transfer,
tax representations (provided that the representations in Part 2(a) are not
modified) and any other representations regarding the status of the
substitute counterparty of the type included in Section (d) of this Part 5
and notice information (in which case, Party A shall provide written notice
to S&P with respect thereto). To the extent that Party A elects or is
required to post collateral pursuant to this Part 5(c)(1), Party A shall
deliver to each Rating Agency within thirty (30) calendar days of the
occurrence of such Collateralization Event an opinion acceptable to S&P as
to the enforceability of the Credit Support Annex and which confirms that,
notwithstanding the commencement of a case under the Bankruptcy Code with
respect to Party A, the collateral will (a) be available to meet swap
obligations notwithstanding the automatic stay and (b) if delivered
pre-bankruptcy, will not be subject to recovery as preferences or
constructive fraudulent conveyances, in each case subject to standard
qualifications and assumptions.
Hedge Counterparty Ratings Requirement shall mean (a) either (i) the
unsecured, unguaranteed and otherwise unsupported short-term debt
obligations of the substitute counterparty are rated at least "A-1" by S&P
or (ii) if the substitute counterparty does not have a short-term rating
from S&P, the unsecured, unguaranteed and otherwise unsupported long-term
senior debt obligations of the substitute counterparty are rated at least
"A+" by S&P, (b) either (i) the unsecured, unguaranteed and otherwise
unsupported long-term senior debt obligations of such substitute
counterparty are rated at least "A1" by Moody's (and if rated "A1" by
Moody's, such rating is not on watch for possible downgrade) and the
unsecured, unguaranteed and otherwise unsupported short-term debt
obligations of such substitute counterparty are rated at least "P-1" by
Moody's (and if rated "P-1" by Moody's, such rating is not on watch for
possible downgrade and remaining on watch for possible downgrade), or (ii)
if such substitute counterparty does not have a short-term debt rating from
Moody's, the unsecured, unguaranteed and otherwise unsupported long-term
senior debt obligations of such substitute counterparty are rated at least
"Aa3" by Moody's (and if rated "Aa3" by Moody's, such rating is not on
watch for possible downgrade), and (c) either (i) the unsecured,
unguaranteed and otherwise unsupported long-term senior debt obligations of
such substitute counterparty are rated at least "A" by Fitch or (ii) the
unsecured, unguaranteed and otherwise unsupported short-term debt
obligations of such substitute counterparty are rated at least "F1" by
Fitch. For the purpose of this definition, no direct or indirect recourse
against one or more shareholders of the substitute counterparty (or against
any Person in control of, or controlled by, or under common control with,
any such shareholder) shall be deemed to constitute a guarantee, security
or support of the obligations of the substitute counterparty.
S&P Ratings Condition shall mean prior written confirmation from S&P that a
proposed action will not cause the downgrade or withdrawal of the then
current ratings of any outstanding Offered Certificates.
Rating Agency shall mean each of S&P, Xxxxx'x and Fitch.
(2) It shall be a ratings event (Ratings Event) if at any time after the
date hereof Party A shall fail to satisfy the Hedge Counterparty Ratings
Threshold. Hedge Counterparty Ratings Threshold shall mean (A) the
unsecured, unguaranteed and otherwise unsupported long-term senior debt
obligations of Party A are rated at least "BBB-" by S&P, (B) either (i) the
unsecured, unguaranteed and otherwise unsupported short-term debt
obligations of Party A are rated at least "P-1" by Moody's and the
unsecured, unguaranteed and otherwise unsupported long-term senior debt
obligations of Party A are rated at least "A3" by Moody's (and such rating
is not on watch for possible downgrade) or, (ii) (if Party A does not have
sort term rating by Moody's) the unsecured, unguaranteed and otherwise
unsupported long-term senior debt obligations of Party A are rated at least
"A2" by Moody's (and such rating is not on watch for possible downgrade),
and (C) either (i) the unsecured, unguaranteed and otherwise unsupported
long-term senior debt obligations of Party A are rated at least "BBB+" by
Fitch, or (ii) the unsecured, unguaranteed and otherwise unsupported
short-term debt obligations of Party A are rated at least "F-2" by Fitch.
(3) Following a Ratings Event, Party A shall take the following actions:
(a) Party A, at its sole expense, shall (i) commence actively to seek
to obtain a substitute counterparty and, in the case of a Ratings
Event pursuant to subparagraph (A) of the definition of "Hedge
Counterparty Ratings Threshold" or if at any time after the date
hereof S&P withdraws all of Party A's ratings and no longer rates
Party A, Party A shall within 10 Business Days, subject to extension
upon S&P Ratings Condition, of the Ratings Event obtain a substitute
counterparty (and provide written notice to each Rating Agency with
respect thereto), that (A) satisfies the Hedge Counterparty Ratings
Requirement and (B) assumes the obligations of Party A under this
Agreement (through an assignment and assumption agreement in form and
substance reasonably satisfactory to Party B) or replaces the
outstanding Transactions hereunder with transactions on identical
terms, except that Party A shall be replaced as counterparty,
provided that such substitute counterparty, as of the date of such
assumption or replacement, must not, as a result thereof, be required
to withhold or deduct on account of tax under the Agreement or the
new transactions, as applicable, and such assumption or replacement
must not lead to a termination event or event of default occurring in
respect of the new transactions, as applicable; provided further that
satisfaction of the S&P Ratings Condition shall be required within
such 10 Business Days or longer period, as applicable, for any
transfer of any Transaction under this clause (a)(i) unless such
transfer is in connection with the assignment and assumption of this
Agreement without modification of its terms by such counterparty,
other than the following terms: party name, dates relevant to the
effective date of such transfer, tax representations (provided that
the representations in Part 2(a) are not modified) and any other
representations regarding the status of the substitute counterparty
of the type included in Section (c) of this Part 5 and notice
information (in which case, Party A shall provide written notice to
S&P with respect thereto) and (ii) be required to post collateral as
set forth in (b) below;
(b) in the case of a Ratings Event pursuant to subparagraph (B) or
(C) of the definition of "Hedge Counterparty Ratings Threshold", if
Party A has not obtained a substitute
0
counterparty as set forth in (3)(a) above within 30 days of the
Ratings Event, then Party A shall continue to seek a substitute
counterparty and, on or prior to the expiration of such period, post
collateral according to the terms of the Credit Support Annex.
Notwithstanding anything contained herein to the contrary, if Party A
is required to transfer its rights and obligations under this
Agreement pursuant to this Part 5(c)(3) as a result of a rating
issued by S&P, Party A shall, at all times prior to such transfer, be
required to post collateral in accordance with (i) the terms of the
Credit Support Annex or (ii) an agreement with Party B providing for
the posting of collateral, which agreement shall be subject to Rating
Agency Approval and will require Party A to post the required
collateral.
Rating Agency Approval shall mean prior written confirmation from
S&P, Xxxxx'x and Fitch that such amendment will not cause them to
downgrade or withdraw its then-current ratings of any outstanding
Offered Certificates.
(d) Section 3(a) of this Agreement is hereby amended to include the following
additional representations after paragraph 3(a)(v):
(vi) Eligible Contract Participant. It is an "eligible contract
participant" as defined in section 1a(12) of the U.S. Commodity Exchange
Act.
(vii) Individual Negotiation. This Agreement and each Transaction hereunder
is subject to individual negotiation by the parties.
(viii) Relationship between Party A and Party B. Subject as provided in
Part 5(g), each of Party A and Party B will be deemed to represent to the
other on the date on which it enters into a Transaction or an amendment
thereof that (absent a written agreement between Party A and Party B that
expressly imposes affirmative obligations to the contrary for that
Transaction):
(1) Principal. It is acting as principal and not as agent when entering
into this Agreement and each Transaction.
(2) Non-Reliance. It is acting for its own account and it has made its
own independent decisions to enter into that Transaction and as to
whether that Transaction is appropriate or proper for it based upon its
own judgment and upon advice from such advisors 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 that Transaction; it being understood that information and
explanations related to the terms and conditions of a Transaction shall
not be considered investment advice or a recommendation to enter into
that 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 that Transaction.
(3) Evaluation and Understanding. It is capable of evaluating and
understanding (on its own behalf or through independent professional
advice), and understands and accepts, the terms, conditions and risks of
this Agreement and each Transaction hereunder. It is also capable of
assuming, and assumes, all financial and other risks of this Agreement
and each Transaction hereunder.
(4) Status of Parties. The other party is not acting as a fiduciary or
an advisor for it in respect of that Transaction.
(e) Section 4 is hereby amended by adding the following new agreement:
(f) Actions Affecting Representations. Party B agrees not to take any
action during the term of this Agreement or any Transaction hereunder
that renders or could render any of the representations and warranties
in this Agreement untrue, incorrect, or incomplete, and, if any event or
condition occurs that renders or could render any such representation
untrue, incorrect, or incomplete, Party B will immediately give written
notice thereof to Party A.
(f) Section 1(c). For purposes of Section 1(c)of the Agreement, the
Transaction with External ID: 9323937N3 shall be the sole Transaction
under this Agreement.
(g) Transfer. Section 7 is hereby amended to read in its entirety as
follows:
Except as stated under Section 6(b)(ii), provided that to the extent
Party A makes a transfer pursuant to Section 6(b)(ii) it will provide a
prior written notice to the Rating Agencies of such transfer, neither
Party A nor Party B is permitted to assign, novate or transfer (whether
by way of security or otherwise) as a whole or in part any of its
rights, obligations or interests under this Agreement or any Transaction
without the prior written consent of the other party; provided, however,
that (i) Party A may make such a transfer of this Agreement pursuant to
a consolidation or amalgamation with, or merger with or into, or
transfer of substantially all of its assets to, another entity, or an
incorporation, reincorporation or reconstitution, and (ii) Party A may
transfer this Agreement to any Person that is an office, branch or
affiliate of Party A (any such Person, office, branch or affiliate, a
Transferee) on at least five Business Days' prior written notice to
Party B; provided that, with respect to clause (ii), (A) as of the date
of such transfer the Transferee will not be required to withhold or
deduct on account of a Tax from any payments under this Agreement unless
the Transferee will be required to make payments of additional amounts
pursuant to Section 2(d)(i)(4) of this Agreement in respect of such Tax;
(B) a Termination Event or Event of Default does not occur under this
Agreement as a result of such transfer; (C) such notice is accompanied
by a written instrument pursuant to which the Transferee acquires and
assumes the rights and obligations of Party A so transferred; and (D)
Party A will be responsible for any costs or expenses incurred in
connection with such transfer. Party B will execute such documentation
as is reasonably deemed necessary by Party A for the effectuation of any
such transfer. Notwithstanding the foregoing, no such transfer shall be
made unless the transferring party obtains a written acknowledgment from
each of the Rating Agencies that, notwithstanding such transfer, the
then-current ratings of the Offered Certificates will not be reduced or
withdrawn, provided, however, that this provision shall not apply to any
transfer that is made pursuant to the provisions of Part 5(c) of this
Agreement.
Except as specified otherwise in the documentation evidencing a
transfer, a transfer of all the obligations of Party A made in
compliance with this Section 7 will constitute an acceptance and
assumption of such obligations (and any related interests so
transferred) by the Transferee, a novation of the transferee in place of
Party A with respect to such obligations (and any related interests so
transferred), and a release and discharge by Party B of Party A from,
and an agreement by Party B not to make any claim for payment,
liability, or otherwise against Party A with respect to, such
obligations from and after the effective date of the transfer.
In addition, Party A may transfer this Agreement without the prior
written consent of the Trustee on behalf of Party B to an Affiliate of
Party A that satisfies the Hedge Counterparty Rating Requirements or
that has furnished a guarantee, subject to S&P Ratings Condition, of the
obligations under this Agreement from a guarantor that satisfies the
Hedge Counterparty Rating Requirements; provided that Rating Agency
Approval will be required unless such transfer is in connection with the
assignment and assumption of this Agreement by such an Affiliate without
modification of its terms, other than the following terms: party name,
dates relevant to the effective date of such transfer, tax
representations (provided that the representations in Part 2(a) are not
modified) and any other representations regarding the status of such an
Affiliate the substitute counterparty of the type
included in Section (c) of this Part 5 and notice information (in which
case, Party A shall provide written notice to S&P with respect thereto).
(h) Limited Liability. Party A and Party B agree to the following: (a) The
Bank of New York ("BNY") is entering into this Agreement not in its
individual or corporate capacity, but solely in its capacity as Swap
Contract Administrator under the Swap Contract Administration Agreement;
(b) in no case shall BNY (or any person acting as successor Swap
Contract Administrator under the Swap Contract Administration Agreement)
be personally liable for or on account of any of the statements,
representations, warranties, covenants or obligations stated to be those
of Party B under the terms of this Agreement, all such liability, if
any, being expressly waived by Party A and any person claiming by,
through or under Party A; and (c) recourse against Party B shall be
limited to the assets available under the Swap Contract Administration
Agreement or the Pooling and Servicing Agreement.
(i) Party B Representations. Party B represents that:
(i) Status. The Swap Contract Administrator is swap contract
administrator of the Trust whose appointment is valid and effective both
under the laws of the State of New York and under the PSA, and the Swap
Contract Administrator has the power to own assets in its capacity as
swap contract administrator of the Trust.
(ii) Powers. In its capacity as swap contract administrator of the
Trust, the Swap Contract Administrator has power under the PSA to
execute this Agreement and any other documentation relating to this
Agreement that the Swap Contract Administrator is executing and
delivering on behalf of the Trust, to deliver this Agreement and any
other documentation relating to this Agreement that it is required to
execute and deliver and to perform the obligations (on behalf of the
Trust) under this Agreement and any obligations (on behalf of the Trust)
under any Credit Support Document to which Party B is party and has
taken all necessary action to authorize such execution, delivery and
performance;
(iii) No violation or conflict. Such execution, delivery and performance
do not violate or conflict with any law applicable to the Swap Contract
Administrator or Party B, any provision of the PSA, any order or
judgment of any court or other agency of government applicable to the
Swap Contract Administrator, Party B or any assets of Party B, or any
contractual restriction binding on or affecting the Swap Contract
Administrator, Party B or any assets of Party B;
(iv) Consents. All governmental and other consents that are required
have been obtained by Party B with respect to this Agreement or any
Credit Support Document to which Party B is party have been obtained and
are in full force and effect and all conditions of such consents have
been complied with; and
(v) Obligations binding. The obligation of Party B under this Agreement
and any Credit Support Document to which Party B is party constitute
legal, valid and binding obligations of Party B, enforceable against
Party B in accordance with their respective terms (subject to applicable
bankruptcy, reorganization, insolvency, moratorium or similar laws
affecting creditors' rights generally and subject, as to enforceability,
to equitable principles of general application (regardless of whether
enforcement is sought in a proceeding in equity or law)) and no
circumstances are known to Party B or the Trustee which would or might
prevent the Trustee from having recourse to the assets of Party B for
the purposes of meeting such obligations.
(j) Proceedings. Party A shall not institute against or cause any other
person to institute against, or join any other person in instituting
against Party B, 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 then
in effect, following indefeasible payment in full of the Certificates.
Nothing shall preclude, or be deemed to stop, Party A (i) from taking
any action prior to the expiration of the aforementioned one year and
one day period, or if longer the applicable preference period then in
effect, in (A) any case or proceeding voluntarily filed or commenced by
Party B or (B) any involuntary insolvency proceeding filed or commenced
by a Person other than Party A, (ii) from commencing against Party B or
any of the Mortgage Loans any legal action which is not a bankruptcy,
reorganization, arrangement, insolvency, moratorium, liquidation or
similar proceeding or (iii) from taking any action (not otherwise
mentioned in this paragraph) which will prevent an impairment of any
right afforded to it under the PSA as a third party beneficiary.
(k) Change of Account. Section 2(b) of this Agreement is hereby amended by
the addition of the following after the word "delivery" in the first
line thereof:-
"to another account in the same legal and tax jurisdiction as the
original account"
(l) Pooling and Servicing Agreement.
The parties to the PSA have agreed to obtain the prior written consent
of Party A to any amendment or modification of the PSA, where such
consent is required by Section 10.01 of the PSA.
(m) Set-off. Notwithstanding any provision of this Agreement or any other
existing or future agreements, each of Party A and Party B irrevocably
waives as to itself any and all contractual rights it may have to set
off, net, recoup or otherwise withhold or suspend or condition its
payment or performance of any obligation to the other party under this
Agreement against any obligation of one party hereto to the other party
hereto arising outside of this Agreement. The provisions for set-off set
forth in Section 6(e) of this Agreement shall not apply for purposes of
this Transaction.
(n) Notice of Certain Events or Circumstances. Each party agrees, upon
learning of the occurrence or existence of any event or condition that
constitutes (or that with the giving of notice or passage of time or
both would constitute) an Event of Default or Termination Event with
respect to such party, promptly to give the other party notice of such
event or condition (or, in lieu of giving notice of such event or
condition in the case of an event or condition that with the giving of
notice or passage of time or both would constitute an Event of Default
or Termination Event with respect to the party, to cause such event or
condition to cease to exist before becoming an Event of Default or
Termination Event); provided that failure to provide notice of such
event or condition pursuant to this Part 5(l) shall not constitute an
Event of Default or a Termination Event.
(o) Regarding Party A. Party B acknowledges and agrees that Party A has had
and will have no involvement in and, accordingly Party A accepts no
responsibility for: (i) the establishment, structure, or choice of
assets of Party B; (ii) the selection of any person performing services
for or acting on behalf of Party B; (iii) the selection of Party A as
the Counterparty; (iv) the terms of the Certificates; (v) the
preparation of or passing on the disclosure and other information
contained in any offering circular for the Certificates, the PSA, or any
other agreements or documents used by Party B or any other party in
connection with the marketing and sale of the Certificates (other than
information provided by Party A for purposes of the disclosure document
relating to the Offered Certificates); (vi) the ongoing operations and
administration of Party B, including the furnishing of any information
to Party B which is not specifically required under this Agreement; or
(vii) any other aspect of Party B's existence.
(p) Rating Agency Approval on Amendment. In addition to the requirements of
Section 9, this Agreement will not be amended unless Party B shall have
received Rating Agency Approval.
(q) Limited Recourse Non-petition. The liability of Party B in relation to
this Agreement and any Confirmation hereunder is limited in recourse to
assets in the Trust and payments of interest proceeds and principal
proceeds thereon applied in accordance with the terms of the PSA. Upon
application of all of the assets in the Trust (and proceeds thereon) in
accordance with the PSA, Party A shall not be entitled to take any
further steps against Party B to recover any sums due but still unpaid
hereunder or thereunder, all claims in respect of which shall be
extinguished.
Party A hereby agrees that, notwithstanding any provision of this
agreement to the contrary, Party B's obligations to pay any amounts
owing under Section 6(e) of this Agreement where Party A is either the
Defaulting Party or the sole Affected Party shall be subject to the
payment priority described at Section 4.02 of the PSA and Party A's
right to receive payment of such amounts shall be subject to the payment
priority described at Section 4.02 of the PSA.
(r) Regulation AB Compliance. Party A and Party B agree that the terms of
the Item 1115 Agreement dated as of 29 June, 2006 (the "Regulation AB
Agreement"), between Countrywide Home Loans, Inc., CWABS, INC., CWMBS,
Inc., CWALT, Inc., CWHEQ, Inc. and Credit Suisse International shall be
incorporated by reference into this Agreement so that Party B shall be
an express third party beneficiary of the Regulation AB Agreement.
(s) Jurisdiction. Section 13(b) is hereby amended by: (i) deleting in the
second line of subparagraph (i) thereof the word "non-": and (ii)
deleting the final paragraph thereof.
(t) Waiver of Jury Trial. Each party waives, to the fullest extent permitted
by applicable law, any right it may have to a trial by jury in respect
of any suit, action or proceeding relating to this Agreement or any
Credit Support Document. Each party certifies (i) that no
representative, agent or attorney of the other party or any Credit
Support Provider has represented, expressly or otherwise, that such
other party would not, in the event of such a suit, action or
proceeding, seek to enforce the foregoing waiver and (ii) acknowledges
that it and the other party have been induced to enter into this
Agreement and provide for any Credit Support Document, as applicable,
by, among other things, the mutual waivers and certifications in this
Section.
(u) Consent to Recording. Each party (i) consents to the recording of the
telephone conversations of trading and marketing personnel of the
parties and their Affiliates in connection with this Agreement or any
potential transaction and (ii) if applicable, agrees to obtain any
necessary consent of, and give notice of such recording to, such
personnel of it and its Affiliates.
(v) 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 illegal, 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 illegal, 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 to this Agreement.
(w) Section 5(a)(iii)(1) of this Agreement is hereby deleted and replaced
with the following:
"(1) The occurrence of an Event of Default under any Credit Support
Document if such Event of Default is continuing after any applicable
grace period has elapsed;"
IN WITNESS WHEREOF, the parties have executed this document by their duly
authorized officers with effect from the date so specified on the first page
hereof.
BANK OF NEW YORK , NOT IN ITS
INDIVIDUAL OR CORPORATE CAPACITY
BUT SOLELY AS SWAP CONTRACT
CREDIT SUISSE INTERNATIONAL ADMINISTRATOR FOR CWALT, INC.
ALTERNATIVE LOAN TRUST 2006-OC5
PURSUANT TO A SWAP CONTRACT
ADMINISTRATION AGREEMENT
("Party A") ("Party B")
By: /s/ Xxxxxxxx Sclaloja By: /s/ Xxxxx Xxxxxx
Name: Xxxxxxxx Sclaloja Name: Xxxxx Xxxxxx
Title: Authorized Signatory Title: Assistant Treasurer
Date: 29 June 2006 Date: 29 June 2006
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Authorized Signatory
Date: 29 June 2006
