EXHIBIT 99.3
SWAP CONTRACT ADMINISTRATION AGREEMENT
This SWAP CONTRACT ADMINISTRATION AGREEMENT, dated as of May 30,
2007 (this "Agreement"), among THE BANK OF NEW YORK ("BNY"), as Swap Contract
Administrator (in such capacity, the "Swap Contract Administrator") and not in
its individual or corporate capacity but solely as Trustee under the Pooling and
Servicing Agreement referred to below (in such capacity, the "Trustee"), and
COUNTRYWIDE HOME LOANS, INC. ("CHL").
WHEREAS, CHL is a party to an interest rate swap agreement between
CHL and Barclays Bank PLC (the "Counterparty"), with a Trade Date of May 17,
2007 and a reference number of 1762254B (the "CHL Swap Contract");
WHEREAS, CWALT, Inc. is conveying certain mortgage loans and other
related assets to a trust fund, Alternative Loan Trust 0000-XX0 (xxx "Xxxxx
Xxxx") created pursuant to a Pooling and Servicing Agreement, dated as of May 1,
2007 (the "Pooling and Servicing Agreement"), among CWALT, Inc., as depositor,
CHL, as a seller, Park Granada LLC, as a seller, Park Monaco Inc., as a seller,
Park Sienna LLC, as a seller, Countrywide Home Loans Servicing LP, as master
servicer (the "Master Servicer"), and the Trustee;
WHEREAS, simultaneously with the execution and delivery of this
Agreement, CHL is assigning all of its rights, and delegating all of its duties
and obligations (other than its obligation to pay the Additional Payment (as
defined in the CHL Swap Contract)), under the CHL Swap Contract to the Swap
Contract Administrator pursuant to an assignment agreement, dated as of the date
hereof (the "Assignment Agreement"), among CHL, as assignor, the Swap Contract
Administrator, as assignee, and the Counterparty and the Swap Contract
Administrator and the Counterparty are entering into a new confirmation with a
Trade Date of May 17, 2007 and a reference number of 1762254B (the "Swap
Contract"), a copy of which is attached to this Agreement at Exhibit A;
WHEREAS, the parties hereto desire that the Trustee make remittances
to the Swap Contract Administrator as contemplated by and to the extent provided
in the Pooling and Servicing Agreement to cover payments due to the Counterparty
under the Swap Contract;
WHEREAS, CHL desires that the payments payable by the Counterparty
on the Swap Contract be distributed to the Trustee under the Pooling and
Servicing Agreement to be applied for the purposes specified in the Pooling and
Servicing Agreement;
WHEREAS, CHL and the Trustee desire to appoint the Swap Contract
Administrator, and the Swap Contract Administrator desires to accept such
appointment, to distribute funds received under the Swap Contract to the Trustee
and to CHL as provided in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
in this Agreement, and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties agree as follows:
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1. Definitions. Capitalized terms used but not otherwise defined in this
Agreement shall have the respective meanings assigned thereto in the Pooling and
Servicing Agreement.
Benefited Certificates: The LIBOR Certificates.
Responsible Officer: When used with respect to the Swap Contract
Administrator, any Vice President, any Assistant Vice President, the Secretary,
any Assistant Secretary, any Trust Officer or any other officer of the Swap
Contract Administrator customarily performing functions similar to those
performed by any of the above designated officers and also to whom, with respect
to a particular matter, such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
Swap Administration Account: The separate account created and
maintained by the Swap Contract Administrator pursuant to Section 3 with a
depository institution in the name of the Swap Contract Administrator for the
benefit of the Counterparty and the Trustee on behalf of the Holders of the
Benefited Certificates and designated "The Bank of New York for Barclays Bank
PLC and certain registered Holders of CWALT, Inc., Mortgage Pass-Through
Certificates, Series 2007-OH1". Funds in the Swap Administration Account shall
be held for the Counterparty and the Trustee on behalf of the Holders of the
Benefited Certificates as set forth in this Agreement.
2. Appointment of Swap Contract Administrator.
CHL and the Trustee hereby appoint BNY to serve as Swap Contract
Administrator pursuant to this Agreement. The Swap Contract Administrator
accepts such appointment and acknowledges the transfer and assignment to it of
CHL's rights and obligations under the CHL Swap Contract pursuant to the
Assignment Agreement. The Swap Contract Administrator agrees to exercise the
rights referred to above for the benefit of the Trustee and the Counterparty and
to perform the duties set forth in this Agreement.
3. Receipt of Funds; Swap Administration Account.
The Swap Contract Administrator hereby agrees to receive (i) on behalf of
the Trustee, all amounts paid by the Counterparty under the Swap Contract and
(ii) on behalf of the Counterparty, all amounts remitted by the Trustee pursuant
to the Pooling and Servicing Agreement for payment to the Counterparty under the
Swap Contract. The Swap Contract Administrator shall establish and maintain a
Swap Administration Account into which the Swap Contract Administrator shall
deposit or cause to be deposited on the Business Day of receipt, (x) all amounts
remitted by the Trustee for payment to the Counterparty pursuant to the Swap
Contract and (y) all amounts payable by the Counterparty under the Swap
Contract. All funds deposited in the Swap Administration Account shall be held
for the benefit of the Counterparty and the Trustee on behalf of the Holders of
the Benefited Certificates until withdrawn in accordance with Section 4.
The Swap Administration Account shall be an "Eligible Account" as defined
in the Pooling and Servicing Agreement. Funds in the Swap Administration Account
shall remain uninvested.
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The Swap Contract Administrator shall give at least 30 days' advance
notice to the Counterparty and the Trustee of any proposed change of location of
the Swap Administration Account prior to any change thereof.
4. Calculations; Distribution of Payments; Delivery of Notices.
The Swap Contract Administrator hereby agrees to make payments based on
the information provided by the Trustee and the Counterparty, and the Swap
Contract Administrator shall, absent manifest error, be entitled to rely on
information provided by the Trustee and the Counterparty.
On the Business Day of receipt of any payment from the Counterparty, the
Swap Contract Administrator shall withdraw the amount of such payment from the
Swap Administration Account and distribute such amount to the Trustee for
deposit into the Swap Account.
On the Business Day of receipt of any payment from the Trustee for payment
to the Counterparty, the Swap Contract Administrator shall withdraw the amount
of such payment from the Swap Administration Account and distribute such amount
to the Counterparty in accordance with the wiring instructions specified in the
Swap Contract.
The Swap Contract Administrator shall prepare and deliver any notices
required to be delivered under the Swap Contract.
On the Business Day of receipt of any notices, information or reports
received by the Swap Contract Administrator from the Counterparty, the Swap
Contract Administrator shall provide the same to the Trustee, including without
limitation information regarding any Swap Termination Payment that will be
payable by the Swap Contract Administrator to the Counterparty with respect to
the next Distribution Date.
5. Control Rights; Delivery Amounts; Replacement Swap Contract.
The Trustee shall have the right to direct the Swap Contract Administrator
with respect to the exercise of any right under the Swap Contract (such as the
right to designate an Early Termination Date following an Event of Default or
Termination Event (each such term as defined in the Swap Contract)).
If the obligations of the Counterparty are, or shall become, guaranteed
pursuant to the guarantee of any party (whether an affiliate of the Counterparty
or otherwise), then the Swap Contract Administrator shall promptly demand in
accordance with the terms of the guarantee from such guarantor all amounts
payable or deliverable by the Counterparty under the Swap Contract in the event
that the Counterparty fails to make timely payment or delivery of such amounts.
Upon the Swap Contract Administrator or the Trustee obtaining actual
knowledge of a Collateral Event (as defined in the Swap Contract), the Swap
Contract Administrator, at the direction of the Trustee, shall (i) demand
delivery of the Delivery Amount (as defined in the Swap Contract) from the
Counterparty on each Valuation Date (as defined in the Swap
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Contract), if applicable, (ii) deliver to the Counterparty the Return Amount (as
defined in the Swap Contract) on each Valuation Date, if applicable, as well as
Distributions and the Interest Amount (each as defined in the Swap Contract), to
the extent required under the Swap Contract and (iii) take such other action
required under the Swap Contract. If a Delivery Amount is demanded, the Swap
Contract Administrator shall establish an account to hold cash or other eligible
investments pledged under the Swap Contract. Any such account shall be an
"Eligible Account" as defined in the Pooling and Servicing Agreement. Any cash
or other Eligible Collateral (as defined in the Swap Contract) pledged under the
Swap Contract shall not be part of the Swap Administration Account unless they
are applied in accordance with the Swap Contract to make a payment due to the
Swap Contract Administrator pursuant to the Swap Contract.
In the event that the Swap Contract is terminated, CHL shall assist the
Swap Contract Administrator in procuring a replacement swap contract with terms
approximating those of the original Swap Contract, and the Swap Contract
Administrator shall enter into a replacement swap contract procured by CHL or
the Counterparty and continue to serve as Swap Contract Administrator pursuant
to the terms hereof. Any Swap Termination Payment received from the Counterparty
shall be used to pay any upfront amount required under any replacement swap
contract, and any excess shall be distributed to CHL. In the event that a
replacement swap contract cannot be procured, any Swap Termination Payment
received from the Counterparty in respect of the termination of the original
Swap Contract shall be held in the Swap Administration Account and distributed
as provided in Section 4 and the Pooling and Servicing Agreement.
In the event that a replacement swap is procured and the replacement
counterparty pays an upfront amount to the Swap Contract Administrator in
connection with the execution of the replacement swap contract, then (i) if that
upfront amount is not received prior to the Distribution Date on which any Swap
Termination Payment was due to the Counterparty under the original Swap
Contract, that upfront amount shall be held in the Swap Administration Account
and distributed as provided in Section 4 and the Pooling and Servicing
Agreement, and (ii) if that upfront amount is received prior to the Distribution
Date on which any Swap Termination Payment is due to the Counterparty under the
original Swap Contract, the Swap Contract Administrator shall remit to the
Trustee, to be included in Interest Funds, the portion of such upfront amount
equal to the lesser of (x) such upfront amount and (y) the amount of the Swap
Termination Payment due to the Counterparty under the original Swap Contract.
Any upfront amount paid by a replacement counterparty that is not remitted by
the Swap Contract Administrator to the Trustee pursuant to clause (ii) of the
preceding sentence shall be distributed to CHL.
6. Representations and Warranties of the Swap Contract Administrator. The Swap
Contract Administrator represents and warrants as follows:
(a) BNY is duly organized and validly existing as a banking corporation
under the laws of the State of New York and has all requisite power
and authority to execute and deliver this Agreement and to perform
its obligations as Swap Contract Administrator under this Agreement.
(b) The execution, delivery and performance of this Agreement by BNY as
Swap Contract Administrator has been duly authorized by BNY.
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(c) This Agreement has been duly executed and delivered by BNY as Swap
Contract Administrator and is enforceable against BNY in accordance
with its terms, except as enforceability may be affected by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law).
(d) The execution, delivery and performance of this Agreement by BNY as
Swap Contract Administrator will not result in a breach of the
organizational documents of BNY and will not violate any applicable
law, rule or regulation of the United States or the State of New
York.
7. Certain Matters Concerning the Swap Contract Administrator.
(a) The Swap Contract Administrator shall undertake to perform such
duties and only such duties as are specifically set forth in this
Agreement.
(b) No provision of this Agreement shall be construed to relieve the
Swap Contract Administrator from liability for its own grossly
negligent action, its own grossly negligent failure to act or its
own willful misconduct, its grossly negligent failure to perform its
obligations in compliance with this Agreement, or any liability that
would be imposed by reason of its willful misfeasance or bad faith;
provided that:
(i) the duties and obligations of the Swap Contract Administrator
shall be determined solely by the express provisions of this
Agreement, the Swap Contract Administrator shall not be
liable, individually or as Swap Contract Administrator, except
for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants
or obligations shall be read into this Agreement against the
Swap Contract Administrator and the Swap Contract
Administrator may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Swap Contract Administrator and conforming to the requirements
of this Agreement that it reasonably believed in good faith to
be genuine and to have been duly executed by the proper
authorities respecting any matters arising hereunder;
(ii) the Swap Contract Administrator shall not be liable,
individually or as Swap Contract Administrator, for an error
of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Swap Contract Administrator,
unless the Swap Contract Administrator was grossly negligent
or acted in bad faith or with willful misfeasance; and
(iii) the Swap Contract Administrator shall not be liable,
individually or as Swap Contract Administrator, with respect
to any action taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of
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the Trustee or CHL, or exercising any power conferred upon the
Swap Contract Administrator under this Agreement.
(c) Except as otherwise provided in Sections 7(a) and 7(b):
(i) the Swap Contract Administrator may request and rely upon and
shall be protected in acting or refraining from acting upon
any resolution, officer's certificate, certificate of auditors
or any other certificate, statement, instrument, opinion,
report, notice, request, consent, order, appraisal, bond or
other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(ii) the Swap Contract Administrator may consult with counsel and
any opinion of counsel shall be full and complete
authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in
accordance with such opinion of counsel;
(iii) the Swap Contract Administrator shall not be liable,
individually or as Swap Contract Administrator, for any action
taken, suffered or omitted by it in good faith and believed by
it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(iv) the Swap Contract Administrator shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing so to do
by the Counterparty, CHL or the Trustee; provided, however,
that if the payment within a reasonable time to the Swap
Contract Administrator of the costs, expenses or liabilities
likely to be incurred by it in the making of such
investigation is, in the opinion of the Swap Contract
Administrator not reasonably assured to the Swap Contract
Administrator by the Counterparty, CHL and/or the Trustee, the
Swap Contract Administrator may require reasonable indemnity
against such expense, or liability from the Counterparty, CHL
and/or the Trustee, as the case may be, as a condition to
taking any such action; and
(v) the Swap Contract Administrator shall not be required to
expend its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder if
it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such liability is
not assured to it.
(d) CHL covenants and agrees to pay or reimburse the Swap Contract
Administrator, upon its request, for all reasonable expenses and
disbursements incurred or made by the Swap Contract Administrator in
accordance with any of the provisions of this Agreement except any
such expense or disbursement as may arise from its negligence, bad
faith or willful misconduct. The Swap Contract Administrator
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and any director, officer, employee or agent of the Swap Contract
Administrator shall be indemnified by CHL and held harmless against
any loss, liability or expense incurred in connection with any legal
action relating to this Agreement, the Swap Contract or the
Assignment Agreement, or in connection with the performance of any
of the Swap Contract Administrator's duties hereunder or thereunder,
other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of
any of the Swap Contract Administrator's duties hereunder or
thereunder. Such indemnity shall survive the termination of this
Agreement or the resignation of the Swap Contract Administrator
hereunder and under the Swap Contract and the Assignment Agreement.
Notwithstanding anything to the contrary in this Section 7(d), any
expenses, disbursements, losses or liabilities of the Swap Contract
Administrator or any director, officer, employee or agent thereof
that are made or incurred as a result of any request, order or
direction of any NIM Insurer or any of the Certificateholders made
to the Trustee as contemplated by Section 8.02(ix) of the Pooling
and Servicing Agreement and consequently made to the Swap Contract
Administrator by the Trustee shall be payable by the Trustee out of
the security or indemnity provided by any NIM Insurer or such
Certificateholders pursuant to Section 8.02(ix) of the Pooling and
Servicing Agreement.
(e) Upon the resignation of BNY as Trustee in accordance with the
Pooling and Servicing Agreement, (i) BNY shall resign and be
discharged from its duties as Swap Contract Administrator hereunder
and (ii) the Person that succeeds BNY as Trustee shall be appointed
as successor Swap Contract Administrator hereunder upon its
execution, acknowledgement and delivery of the instrument accepting
such appointment in accordance with Section 8.08 of the Pooling and
Servicing Agreement, whereupon the duties of the Swap Contract
Administrator hereunder shall pass to such Person. In addition, upon
the appointment of a successor Trustee under the Pooling and
Servicing Agreement, such successor Trustee shall succeed to the
rights of the Trustee hereunder.
8. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
(b) Each of BNY and CHL hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in
any legal proceedings arising out of or relating to this Agreement.
(c) The Counterparty shall be an express third party beneficiary of this
Agreement for the purpose of enforcing the provisions hereof to the
extent of the Counterparty's rights explicitly specified herein as
if a party hereto.
(d) This Agreement shall terminate upon the termination of the Swap
Contract and the disbursement by the Swap Contract Administrator of
all funds received under
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the Swap Contract to the Trustee on behalf of the Holders of the
Benefited Certificates.
(e) This Agreement may be amended, supplemented or modified in writing
by the parties hereto, provided that no amendment shall adversely
affect in any material respect the Counterparty without the prior
written consent of the Counterparty, which consent shall not be
unreasonably withheld.
(f) This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts (including by
facsimile transmission), and all such counterparts taken together
shall be deemed to constitute one and the same instrument.
(g) Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
(h) The representations and warranties made by the parties to this
Agreement shall survive the execution and delivery of this
Agreement. No act or omission on the part of any party hereto shall
constitute a waiver of any such representation or warranty.
(i) The article and section headings in this Agreement are for
convenience of reference only, and shall not limit or otherwise
affect the meaning of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
THE BANK OF NEW YORK,
as Swap Contract Administrator
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Assistant Treasurer
THE BANK OF NEW YORK,
not in its individual or corporate capacity
but solely as Trustee
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Assistant Treasurer
COUNTRYWIDE HOME LOANS, INC.
By: /s/ Xxxxxxx Xxxxxxxxxxxx
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Managing Director
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EXHIBIT A
SWAP CONTRACT
A-1
