EXHIBIT 99.3
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SCHEDULE
to the
Master Agreement
dated as of April 30, 2007
between
THE BANK OF NEW YORK , NOT IN ITS
CREDIT SUISSE INTERNATIONAL INDIVIDUAL OR CORPORATE CAPACITY
And BUT SOLELY AS TRUSTEE OF THE SWAP
TRUST FOR ALTERNATIVE LOAN TRUST
2007-OA6
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("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. Subject to Part 1(h) below, 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 apply to Party A and will
not apply to Party B; except that Section 5(a)(ii) will not apply to
Party A with respect to Party A's failure to comply with Part 5(c)
herein.
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 Section 5(a)(iii)(1) will
apply to Party B solely in respect of Party B's obligations under
Paragraph 3(b) of the Credit Support Annex.
Section 5(a)(iv) (Misrepresentation) will apply to Party A and will
not apply to 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 apply to Party A and will not apply to Party B.
"Specified Indebtedness" shall have the meaning specified in Section
14 of this Agreement and "Threshold Amount" means 3% of shareholder's
equity of the Relevant Entity.
Section 5(a)(vii) (Bankruptcy) will apply to Party A and Party B;
provided that in respect of Party B, (i) clause (2) thereof shall not
apply, (ii) clause (4) thereof shall not apply to Party B to the
extent that the relevant proceeding is instituted by Party A in
breach of Party A's agreement in Part 5(j) of this Schedule, (iii)
the words "seeks or" shall be deleted from clause (6) thereof and any
appointment that is effected by or pursuant to the Pooling and
Servicing Agreement shall not constitute an Event of Default under
such clause (6), (iv) clause (7) thereof shall not apply, (v) clause
(8) thereof shall apply only to the extent not inconsistent with
clauses (i) to (iv) of this sentence and (vi) clause (9) thereof
shall not apply.
Section 5(a)(viii) (Merger without Assumption) will apply to Party A
and will not apply to Party B.
Notwithstanding anything to the contrary in Sections 5(a)(i) and
5(a)(iii) of this Agreement, any failure by Party A to comply with or
perform any obligation to be complied with or performed by Party A
under any Credit Support Document shall not be an Event of Default
unless (A) a Ratings Event has occurred and at least 30 Local
Business Days (10 Local Business Days when the Ratings Event relates
only to S&P's ratings and 30 calendar days when the Rating Events
relate only to Moody's ratings) have elapsed since the last time the
Ratings Event had not occurred or was not continuing and (B) such
failure is not remedied on or before the third Local Business Day
after notice of such Ratings Event is given to Party A.
(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;
provided that the words "(x) any action taken by a taxing authority,
or brought in a court of competent jurisdiction, on or after the date
on which a Transaction is entered into (regardless of whether such
action is taken or brought with respect to a party to this Agreement)
or (y)" shall be deleted.
Section 5(b)(iii) (Tax Event upon Merger) will apply to Party A and
Party B; provided that in the event that Party A is the Affected
Party in respect of an event described in Section 5(b)(iii), Party A
shall not be entitled to designate an Early Termination Date pursuant
to such Section 5(b)(iii). 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 subject to Part 5(z).
(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) Each of the following shall constitute an Additional Termination
Event with Party A as sole Affected Party:
(a) An S&P Collateralization Event has occurred and is
continuing and Party A has failed to comply with or perform
any obligation to be complied with or performed by Party A
in accordance with the "Downgrade Provisions" as set forth
in Part 5(c)(2) and a Ratings Event has neither occurred nor
is continuing. Any event which constitutes an Additional
Termination Event pursuant to this Section 1(h)(i)(a) shall
not constitute an Event of Default.
(b) A Moody's Collateralization Event has occurred and is
continuing, and Party A has failed to comply with or perform
any obligation to deliver collateral under the Credit
Support Annex and 30 Local Business Days or more have
elapsed since the last time that no Moody's
Collateralization Event had occurred and was continuing. Any
event which constitutes an Additional Termination Event
pursuant to this Section 1(h)(i)(b) shall not constitute an
Event of Default (unless such event constitutes a failure to
post collateral pursuant to the terms of the Credit Support
Annex in breach of Part 5(c)(4)).
(c) A Ratings Event has occurred and is continuing and Party A
has failed to comply with or perform any obligation to be
complied with or performed by Party A in accordance with the
"Downgrade Provisions" as set forth in Part 5(c)(4) and, in
the case of a Moody's Ratings Event, (i) at least one
Eligible Replacement has made a Live Bid to be the
transferee of a transfer to be made in accordance with the
terms hereof and/or (ii) at least one entity that satisfies
the Hedge Counterparty Ratings Requirements is able to
provide an Eligible Guarantee in respect of all of Party A's
present and future obligations under this Agreement subject
to the satisfaction of the S&P Ratings Condition. The
failure by Party A to comply with or perform any obligation
(other than the obligation to post collateral pursuant to
the terms of the Credit Support Annex) to be complied with
or performed by Party A in accordance with the "Downgrade
Provisions" as set forth in Part 5(c)(4) will constitute an
Additional Termination Event and not an Event of Default.
(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.
(iv) Party A has failed to comply with the requirements 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, neither Party A nor Party B will make any representations.
(b) Payee Representations. For the purpose of Section 3(f) of this
Agreement, neither Party A nor Party B will make any representations.
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:--
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Party
required to
deliver
document Form/Document/Certificate Date by which to be delivered
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(b) Other documents to be delivered are:-
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Party
required to Covered by
deliver Date by which to be Section 3(d)
document Form/Document/Certificate delivered Representation
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Party A and Certified copy of the board of directors resolution (or Concurrently with the Yes
Party B equivalent authorizing documentation) which sets forth the execution and delivery of
authority of each signatory to this Agreement and each Credit this Agreement.
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.
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Party A and Incumbency certificate (or, if available the current authorized Concurrently with the Yes
Party B signature book or equivalent authorizing documentation) execution and delivery of
specifying the names, titles, authority and specimen this Agreement unless
signatures of the persons authorized to execute this previously delivered and
Agreement which sets forth the specimen signatures of each still in full force and
signatory to this Agreement, each Confirmation and each effect.
Credit Support Document (if any) signing on its behalf.
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Party A and An opinion of counsel as to the enforceability of this Concurrently with the No
B Agreement and the capacity of the relevant party to enter into execution and delivery of
or, that is reasonably satisfactory in form and substance to the the Confirmation unless
other party. previously delivered and
still in full force and
effect.
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Party B An executed copy of the PSA. Upon the filing of the PSA Yes
on the Security and Exchange
Commission's XXXXX System..
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Party A A copy of the annual report of such party containing audited Upon request. Yes
financial statements for such fiscal year certified by
independent public accountants in accordance with generally
accepted accounting principles consistently applied.
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Party A For its most recent fiscal quarter, a copy of the unaudited Upon request. Yes
financial statements of such party, prepared in accordance
with generally accepted accounting principles consistently
applied.
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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 2007-OA6
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.
(f) Credit Support Document. Credit Support Document means:-
With respect to Party A: The Credit Support Annex and any guarantee that
is provided to Party B pursuant to Part 5(c) below.
With respect to Party B: The Credit Support Annex solely in respect of
Party B's obligations under Paragraph 3(b) of the Credit Support Annex.
(g) Credit Support Provider.
Credit Support Provider means in relation to Party A: Not applicable or,
if a guarantee is provided to Party B pursuant to Part 5(c) below, the
guarantor providing such guarantee. 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 including for purposes of Section 6(b)(ii); provided,
however, that "Affiliate" shall have the meaning given to such term
under Section 14 of this Agreement for Party A solely for purposes of
Part 5(g) of this Agreement.
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 April 1, 2007 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) with respect to each Relevant Entity, so long as Xxxxx'x
Investors Service, Inc. (Xxxxx'x) is currently rating the
Certificates and either (i) such Relevant Entity has both a
long-term and short-term rating by Moody's and (x) the unsecured,
unguaranteed and otherwise unsupported long-term senior debt
obligations of such Relevant Entity are rated "A3" or below by
Moody's or (y) the unsecured, unguaranteed and otherwise
unsupported short-term debt obligations of such Relevant Entity
are rated "P-2" or below by Moody's, or (ii) no short-term rating
is available from Moody's and the unsecured, unguaranteed and
otherwise unsupported long-term senior debt obligations of such
Relevant Entity are rated "A2" or below by Moody's (such event, a
Moody's Collateralization Event), or
(B) with respect to each Relevant Entity, so long as Standard &
Poor's Rating Services, a division of The XxXxxx-Xxxx Companies,
Inc. (S&P) is currently rating the Certificates and either (i) the
unsecured, unguaranteed and otherwise unsupported short-term debt
obligations of such Relevant Entity are rated "A-2" or below by
S&P or (ii) if such Relevant Entity 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
"A" or below by S&P (such event, an S&P Collateralization Event).
Relevant Entity means Party A and any guarantor under an Eligible
Guarantee in respect of all of party A's present and future
obligations under this Agreement.
(2) Without prejudice to Party A's obligations under the Credit
Support Annex, during any period in which a Collateralization
Event is occurring, Party A shall, at its own expense and within
thirty (30) Business Days of such Collateralization Event (or 30
calendar days, in the case of an S&P 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 an Eligible
Guarantee (as defined below) of Party A's obligations under this
Agreement that is (in the case of an S&P Collateralization Event)
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
(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 and
(d) has executed an Item 1115 Agreement with the Depositor,
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 (in the case of an S&P
Collateralization Event) satisfaction of the S&P Ratings Condition
shall be required for any transfer of any Transactions under this
Part 5(c)(2)(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 (c) 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)(2) following an S&P Collateralization Event, Party A
shall deliver to each Rating Agency (with a copy to the Trustee)
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.
Eligible Guarantee means an unconditional and irrevocable
guarantee that is provided by a guarantor as principal debtor
rather than surety and is directly enforceable by Party B, where
either (A) a law firm has given a legal opinion confirming that
none of the guarantor's payments to Party B under such guarantee
will be subject to withholding for Tax or (B) such guarantee
provides that, in the event that any of such guarantor's payments
to Party B are subject to withholding for Tax, such guarantor is
required to pay such additional amount as is necessary to ensure
that the net amount actually received by Party B (free and clear
of any withholding tax) will equal the full amount Party B would
have received had no such withholding been required.
An entity shall satisfy the Hedge Counterparty Ratings Requirement
if (a) either (i) the unsecured, unguaranteed and otherwise
unsupported short-term debt obligations of the entity are rated at
least "A-1" by S&P or (ii) if the entity does not have a
short-term rating from S&P, the unsecured, unguaranteed and
otherwise unsupported long-term senior debt obligations of the
entity are rated at least "A+" by S&P, and (b) either (i) the
unsecured, unguaranteed and otherwise
unsupported long-term senior debt obligations of such entity are
rated at least "A3" by Moody's and the unsecured, unguaranteed and
otherwise unsupported short-term debt obligations of such entity
are rated at least "P-2" by Moody's (if such entity has both a
long-term and short-term rating from Moody's) or (ii) if such
entity does not have a short-term debt rating from Moody's, the
unsecured, unguaranteed and otherwise unsupported long-term senior
debt obligations of such entity are rated at least "A3" by
Moody's. For the purpose of this definition, no direct or indirect
recourse against one or more shareholders of the entity (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 entity.
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
Certificates.
Rating Agency shall mean each of S&P and Moody's.
(3) It shall be a ratings event (Ratings Event) if at any time after
the date hereof (A) so long as S&P is currently rating the
Certificates and either (i) the unsecured, unguaranteed and
otherwise unsupported long-term senior debt obligations of each
Relevant Entity are rated "BB+" or below by S&P, (ii) the
unsecured, unguaranteed and otherwise unsupported short-term debt
obligations of each Relevant Entity are rated "B" or below by S&P
or (iii) if at any time after the date hereof S&P withdraws all of
each Relevant Entity's ratings and no longer rates any Relevant
Entity (such event, an S&P Ratings Event) or (B) so long as
Xxxxx'x is currently rating the Certificates and either (i) the
unsecured, unguaranteed and otherwise unsupported long-term senior
debt obligations of each Relevant Entity are unrated or rated
"Baa1" or below by Moody's (or such rating is withdrawn) or (ii)
the unsecured, unguaranteed and otherwise unsupported short-term
debt obligations of each Relevant Entity are unrated or rated
"P-3" or below by Moody's (or such rating is withdrawn) (such
event, a Moody's Ratings Event).
(4) Following a Ratings Event, Party A shall take the following
actions:
(a) in the case of an S&P Ratings Event, Party A, at its
sole expense, shall (i) within 10 Business Days,
subject to extension upon satisfaction of the 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 is reasonably acceptable to Party B (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 and (c) has
executed an Item 1115 Agreement with the Depositor,
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
prior written
notice to S&P and the Trustee with respect thereto)
and (ii) post collateral according to the terms of the
Credit Support Annex; and
(b) in the case of a Moody's Ratings Event, Party A, at
its sole expense, shall (i) use commercially
reasonable efforts to, as soon as reasonably
practicable, (A) furnish an Eligible Guarantee of
Party A's obligations under this Agreement from a
guarantor that satisfies paragraph (b) of the
definition of Hedge Counterparty Ratings Requirement
or (B) obtain a substitute counterparty (and provide
prior written notice to each Rating Agency with
respect thereto) that (1) is reasonably acceptable to
Party B, (2) satisfies the paragraph (b) of the
definition of Hedge Counterparty Ratings Requirement
(3) 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
substantially the same terms, including rating
triggers, credit support documentation and other
provisions of this Agreement, except that Party A
shall be replaced as counterparty and (4) has executed
an Item 1115 Agreement with the Depositor, 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 and (ii) post collateral according to the
terms of the Credit Support Annex.
Rating Agency Approval shall mean prior written confirmation from S&P
and Moody's that such action will not cause them to downgrade or
withdraw its then-current ratings of any outstanding 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. 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: [?] shall be the sole Transaction under
this Agreement.
(g) Transfer. Section 7 is hereby amended to read in its entirety as
follows:
(i) 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 or branch of Party A (any such Person, office or branch, 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 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 but with prior
written notice to S&P and the Trustee, to an Affiliate of Party A
that (i) 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 (ii) as of
the date of such transfer such Affiliate will not be required to
withhold or deduct on account of a Tax from any payments under
this Agreement unless such Affiliate will be required to make
payments of additional amounts pursuant to Section 2(d)(i)(4) of
this Agreement in respect of such Tax; provided that satisfaction
of the S&P Ratings Condition 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) and (iii) such
Affiliate has executed an Item 1115 Agreement with the Depositor.
(ii) If an Eligible Replacement has made a Firm Offer (which means an
offer that will become legally binding upon acceptance by Party B)
to be the transferee pursuant to a Permitted Transfer, Party B
shall, at Party A's written request and at Party A's expense, take
any reasonable steps required to be taken by Party B to effect
such transfer.
Permitted Transfer, means a Transfer that occurs pursuant to Part
5(g).
(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 Trustee
of the Swap Trust; (b) in no case shall BNY (or any person acting as
successor Trustee of the Swap Trust) 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. This Part 5(h) shall survive termination of this Agreement.
(i) Party B Representations. Party B represents that:
(i) Status. Party B's appointment is valid and effective both under the
laws of the State of New York and under the PSA.
(ii) Powers. In its capacity as Trustee of the Swap Trust, Party B has
power under the PSA to execute this Agreement and any other
documentation relating to this Agreement, 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 under this
Agreement and any obligations 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 Party B, any
provision of the PSA, any order or judgment of any
court or other agency of government applicable to Party B or any assets
of Party B, or any contractual restriction binding on or affecting 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 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 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) [Reserved]
(m) Set-off. Except as expressly provided for in Section 2(c) or Section 6
hereof, and notwithstanding any other provision of this Agreement or any
other existing or future agreement, each party irrevocably waives any
and all rights it may have to set off, net, recoup or otherwise withhold
or suspend or condition payment or performance of any obligation between
it and the other party hereunder against any obligation between it and
the other party under any other agreements. Section 6(e) shall be
amended by deleting the following sentence: "The amount, if any, payable
in respect of an Early Termination Date and determined pursuant to this
Section will be subject to any Set-off."
(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(n) 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 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 Fund 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 Fund (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 Master Item 1115 Agreement dated as of November 28, 2006, as
supplemented by the Supplement, dated April 30, 2007 (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) [Reserved]
(x) Notwithstanding the definition of "Indemnifiable Tax" in Section 14 of
this Agreement, in relation to payments by Party A, any Tax shall be an
Indemnifiable Tax and, in relation to payments by Party B, no Tax shall
be an Indemnifiable Tax.
(y) [Reserved]
(z) Calculations. Notwithstanding Section 6 of this Agreement, so long as
Party A is (A) the sole Affected Party (other than pursuant to an
Illegality or a Tax Event) or (B) the Defaulting Party in respect of any
Event of Default, paragraphs (i) to (vii) below shall apply:
(i) Notwithstanding Part 1(f) hereof, "Market Quotation" shall apply,
and the definition of "Market Quotation" shall be deleted in its
entirety and replaced with the following:
""Market Quotation" means, with respect to one or more Terminated
Transactions, a Live Bid which is (1) made by a Reference Market-maker
that is an Eligible Replacement, (2) for an amount that would be paid to
Party B (expressed as a negative number) or by Party B (expressed as a
positive number) in consideration of an agreement between Party B and
such Reference Market-maker to enter into a transaction (the
"Replacement Transaction") that would have the effect of preserving for
such party the economic equivalent of any payment or delivery (whether
the underlying obligation was absolute or contingent and assuming the
satisfaction of each applicable condition precedent) by the parties
under Section 2(a)(i) in respect of such Terminated Transactions or
group of Terminated Transactions that would, but for the occurrence of
the relevant Early Termination Date, have been required after that date,
(3) made on the basis that Unpaid Amounts in respect of the Terminated
Transaction or group of Transactions are to be excluded but, without
limitation, any payment or delivery that would, but for the relevant
Early Termination Date, have been required (assuming satisfaction of
each applicable condition precedent) after that Early Termination Date
is to be included and (4) made in respect of a Replacement Transaction
with terms substantially the same as those of this Agreement (save for
the exclusion of provisions relating to Transactions that are not
Terminated Transactions)."
(ii) The definition of "Settlement Amount" shall be deleted in its
entirety and replaced with the following:
"Settlement Amount" means, with respect to any Early Termination Date,
an amount (as determined by Party B based on information provided by the
Reference Market-Maker) equal to the Termination Currency Equivalent of
the amount (whether positive or negative) of any Market Quotation for
the relevant Terminated Transaction or group of Terminated Transactions
that is accepted by Party B so as to become legally binding, provided
that:
(1) If, on the day falling ten Local Business Days after the day on
which the Early Termination Date is designated or such later day
as Party B may specify in writing to Party A (but in either case
no later than the Early Termination Date) (such day the "Latest
Settlement Amount Determination Day"), no Market Quotation for
the relevant Terminated Transaction or group of Terminated
Transactions has been accepted by Party B so as to become
legally binding and one or more Market Quotations have been made
and remain capable of becoming legally binding upon acceptance,
the Settlement Amount shall equal the Termination Currency
Equivalent of the amount (whether positive or negative) of the
lowest of such Market Quotations (for the avoidance of doubt,
the lowest of such Market Quotations shall be the lowest Market
Quotation of such Market Quotations expressed as a positive
number or, if any of such Market Quotations is expressed as a
negative number, the Market Quotation expressed as a negative
number with the largest absolute value); and
(2) If, on the Latest Settlement Amount Determination Day, no Market
Quotation for the relevant Terminated Transaction or group of
Terminated Transactions is accepted by Party B so as to become
legally binding and no Market Quotations have been made and
remain capable of becoming legally binding upon acceptance, the
Settlement Amount shall equal Party B's Loss (whether positive
or negative and without reference to any Unpaid Amounts) for the
relevant Terminated Transaction or group of Terminated
Transactions.
(iii) For the purpose of clause (4) of the definition of Market
Quotation, Party B shall determine, based on information provided by the
Reference Market-Maker, whether a Live Bid is made in respect of a
Replacement Transaction with commercial terms substantially the same as
those of this Agreement (save for the exclusion of provisions relating
to Transactions that are not Terminated Transactions); provided,
however, that notwithstanding the provisions of this Part 5(z), nothing
in this Agreement shall preclude Party A from obtaining Market
Quotations.
(iv) At any time on or before the Latest Settlement Amount Determination
Day at which two or more Market Quotations remain capable of becoming
legally binding upon acceptance, Party B shall be entitled to accept
only the lowest of such Market Quotations (for the avoidance of doubt,
the lowest of such Market Quotations shall be the lowest Market
Quotation of such Market Quotations expressed as a positive number or,
if any of such Market Quotations is expressed as a negative number, the
Market Quotation expressed as a negative number with the largest
absolute value).
(v) If Party B requests Party A in writing to obtain Market Quotations,
Party A shall use its reasonable efforts to do so before the Latest
Settlement Amount Determination Day.
(vi) If the Settlement Amount is a negative number, Section 6(e)(i)(3)
of this Agreement shall be deleted in its entirety and replaced with the
following:
"Second Method and Market Quotation. If Second Method and Market
Quotation apply, (1) Party B shall pay to Party A an amount equal to the
absolute value of the Settlement Amount in respect of the Terminated
Transactions, (2) Party B shall pay to Party A the Termination Currency
Equivalent of the Unpaid Amounts owing to Party A and (3) Party A shall
pay to Party B the Termination Currency Equivalent of the Unpaid Amounts
owing to Party B; provided that, (i) the amounts payable under (2) and
(3) shall be subject to netting in accordance with Section 2(c) of this
Agreement and (ii) notwithstanding any other provision of this
Agreement, any amount payable by Party A under (3) shall not be
netted-off against any amount payable by Party B under (1)."
(vii) For purposes of this Part 5(z),
"Eligible Replacement" means an entity (i)(A) satisfying the Hedge
Counterparty Ratings Requirement or (B) whose present and future
obligations owing to Party B are guaranteed pursuant to a guarantee
provided by a guarantor satisfying the Hedge Counterparty Ratings
Requirements and (ii) has executed an Item 1115 Agreement with the
Depositor.
"Live Bid" means a firm quotation from a Reference Market-maker that is
an Eligible Replacement which, when made, was capable of becoming
legally binding upon acceptance.
(aa) Rating Agency Notifications. Notwithstanding any other provision of this
Agreement, this Agreement shall not be amended, no Early Termination
Date shall be effectively designated by Party B, and no transfer of any
rights or obligations under this Agreement shall be made (other than a
transfer of all of Party A's rights and obligations with respect to this
Agreement in accordance with Part 5(g) above) unless each Rating Agency
has been given prior written notice of such amendment, designation or
transfer.
(bb) Applicable Rating Agency. Rating triggers and other Rating
Agency-related provisions in Part 1(h)(1) and Part 5(c) of this
Agreement apply only for so long as that particular Rating Agency is
rating the certificates to which this transaction relates.
(cc) Timing of Payments by Party B upon Early Termination. Notwithstanding
anything to the contrary in Section 6(d)(ii), to the extent that all or
a portion (in either case, the Unfunded Amount) of any amount that is
calculated as being due in respect of any Early Termination Date under
Section 6(e) from Party B to Party A will be paid by Party B from
amounts other than any upfront payment paid to Party B by an Eligible
Replacement that has entered a Replacement Transaction with Party B,
then such Unfunded Amount shall be due on the next subsequent
Distribution Date following the date on which the payment would have
been payable as determined in accordance with Section 6(d)(ii), and on
any subsequent Distribution Dates until paid in full (or if such Early
Termination Date is the final Distribution Date, on such final
Distribution Date); provided, however, that if the date on which the
payment would have been payable as determined in accordance with Section
6(d)(ii) is a Distribution Date, such payment will be payable on such
Distribution Date.
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.
THE BANK OF NEW YORK , NOT IN ITS
INDIVIDUAL OR CORPORATE
CREDIT SUISSE INTERNATIONAL CAPACITY BUT SOLELY AS TRUSTEE
OF THE SWAP TRUST FOR
ALTERNATIVE LOAN TRUST 2007-OA6
("Party A") ("Party B")
By: /s/ Bik Xxxx Xxxxx By: /s/ Xxxxxxxx X. Xxxxxx
--------------------- ------------------------
Name: Bik Xxxx Xxxxx Name: Xxxxxxxx X. Xxxxxx
Title: Authorized Signatory Title: Vice President
By: /s/ Xxxxxx Xxxxxxxxx
----------------------
Name: Xxxxxx Xxxxxxxxx
Title: Authorized Signatory
