EXHIBIT 99.5
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The Guarantees
Swiss Reinsurance Company
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March 1, 2007
Guarantee
To: The Bank of New York, (the "Beneficiary"), not in its individual capacity
but solely as trustee on behalf of the Supplemental Interest Trust for the
CWALT, Inc. Alternative Loan Trust 2007-OA3 established pursuant to a Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement") dated as of
February 1, 2007 among CWALT, Inc., as depositor, Countrywide Home Loans
Servicing LP., as master servicer, 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, and The Bank of New York, as trustee for the benefit of the LIBOR
Certificates (as defined in the Pooling and Servicing Agreement) (the "Rated
Securities").
1. The undersigned, SWISS REINSURANCE COMPANY, a Swiss company (the
"Guarantor"), hereby absolutely and unconditionally guarantees the prompt
payment as and when due of all obligations of its indirect, wholly-owned
subsidiary SWISS RE FINANCIAL PRODUCTS CORPORATION, a Delaware corporation
("THE GUARANTEED SUBSIDIARY") under, in connection with or ancillary to a long
form confirmation (Reference Number 1297208) dated as of March 1, 2007 between
the Beneficiary and THE GUARANTEED SUBSIDIARY as amended or restated from time
to time (the "Agreement") which supports the issuance of the Rated Securities.
In this Guarantee these obligations are referred to as the "Guaranteed
Obligations". This Guarantee is given solely for the benefit of, and is
enforceable only by, the Beneficiary or any trustee as assignee of the
Beneficiary to which this Guarantee has been validly assigned in accordance
with applicable law and who is acting as trustee for the investors in the
Rated Securities.
2. This Guarantee constitutes a Guarantee of payment and not of collection
and is not conditional or contingent upon any attempts to collect from, or
pursue or exhaust any rights or remedies against, THE GUARANTEED SUBSIDIARY. A
demand for payment hereunder may at the Beneficiary's option be made in
writing addressed to the Chief Financial Officer of the Guarantor. This
Guarantee is not however dependent in any way on the manner of the demand for
payment. Delay in making a claim will not affect the Guarantor's obligations
under this Guarantee unless the relevant legal limitation period has expired.
3. This Guarantee constitutes, and is intended by the Guarantor to
constitute, an unlimited non-accessory undertaking (,,unbeschrankte, nicht
akzessorische Verpflichtung") within the meaning of Article 111 of the Swiss
Code of Obligations (,CO`) and is not a mere surety (,,Burgschaft") within the
meaning of Article 492 et seq of the CO.
4. Notwithstanding any reference to the obligations of THE GUARANTEED
SUBSIDIARY, the Guarantor's obligations under this Guarantee are its absolute
and independent obligations as a primary obligor. Payment of a claim hereunder
is required as soon as the Guaranteed Obligations are due and payable.
5. To the extent that any event or circumstance would give rise to any
legal or equitable discharge, defence or other rights of the Guarantor under
this Guarantee, but which event or circumstance would not give rise to any
discharge, defence or rights of THE GUARANTEED SUBSIDIARY under the
Agreements, the Guarantor hereby fully waives, subject to paragraph 7 below,
such discharge, defence, or rights and the Guarantor's liability hereunder
shall continue as if such event or circumstance had not arisen.
6. The Guarantor further agrees, subject to paragraph 7 below, that to the
extent that any event or circumstance gives rise to any legal or equitable
discharge, defence or other rights available to both the Guarantor under the
Guarantee and THE GUARANTEED SUBSIDIARY under the Agreements, the Guarantor
hereby agrees to waive such discharge, defence or other rights against the
Beneficiary, until such time as all the Guaranteed Obligations in relation to
the same event or circumstance have been fully met as required to protect
investors in the Rated Securities.
7. Notwithstanding any other provision of this Guarantee, the Guarantor
will have the right, prior to making any payment under this Guarantee, to (a)
assert such rights of offset as are set forth in the Agreement to the extent
that such rights relate to amounts due and payable by the Beneficiary to THE
GUARANTEED SUBSIDIARY and not to amounts which are subject to dispute; and (b)
defend manifestly fraudulent claims under this Guarantee made by the
Beneficiary.
8. This Guarantee will continue in full force and effect in relation to all
Guaranteed Obligations until all the Guaranteed Obligations have been
satisfied in full. For the avoidance of doubt, all Guaranteed Obligations
entered into by THE GUARANTEED SUBSIDIARY during the term of this Guarantee
shall be honoured in accordance with this Guarantee and shall be binding on
the Guarantor and its successors and assigns. This Guarantee may be amended
only as necessary to reflect changes to the Guaranteed Obligations which are
validly agreed to by the Beneficiary in accordance with the terms of the Rated
Securities, including any requirement to obtain the consent of some or all of
the investors in the Rated Securities.
9. If any payment by THE GUARANTEED SUBSIDIARY is avoided, recaptured or
reduced as a result of insolvency or any similar event affecting creditors
rights generally having occurred in respect of THE GUARANTEED SUBSIDIARY, the
Guarantor's liability under this Guarantee shall continue as if the avoided,
recaptured or reduced payment had not occurred.
10. Upon payment by the Guarantor to the Beneficiary of any amount due under
this Guarantee, the Guarantor shall be entitled to require the assignment to
it of the rights of the Beneficiary against THE GUARANTEED SUBSIDIARY to the
extent satisfied by such payment, and the Beneficiary will take at the
Guarantor's expense such steps as the Guarantor may reasonably require to
implement such assignment. The Guarantor shall not exercise any rights
2
against THE GUARANTEED SUBSIDIARY which it may acquire in consequence of such
payment and assignment unless and until all the Guaranteed Obligations to the
Beneficiary shall have been paid in full.
11. This Guarantee is governed and will be construed in accordance with
Swiss law. The exclusive place of jurisdiction for any legal proceeding
hereunder shall be Zurich, Switzerland.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be executed in
its name as of the 1st day of March, 2007.
SWISS REINSURANCE COMPANY
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Member of Senior Member of Senior
Management Management
3
Swiss Reinsurance Company
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Telephone ▇▇▇ ▇▇▇ ▇▇▇▇
Fax ▇▇▇ ▇▇▇ ▇▇▇▇
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March 1, 2007
Guarantee
To: The Bank of New York, (the "Beneficiary"), not in its individual capacity
but solely as trustee on behalf of the Supplemental Interest Trust for the
CWALT, Inc. Alternative Loan Trust 2007-OA3 established pursuant to a Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement") dated as of
February 1, 2007 among CWALT, Inc., as depositor, Countrywide Home Loans
Servicing LP., as master servicer, 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, and The Bank of New York, as trustee for the benefit of the LIBOR
Certificates (as defined in the Pooling and Servicing Agreement) (the "Rated
Securities").
1. The undersigned, SWISS REINSURANCE COMPANY, a Swiss company (the
"Guarantor"), hereby absolutely and unconditionally guarantees the prompt
payment as and when due of all obligations of its indirect, wholly-owned
subsidiary SWISS RE FINANCIAL PRODUCTS CORPORATION, a Delaware corporation
("THE GUARANTEED SUBSIDIARY") under, in connection with or ancillary to a long
form confirmation (Reference Number 1297212) dated as of March 1, 2007 between
the Beneficiary and THE GUARANTEED SUBSIDIARY as amended or restated from time
to time (the "Agreement") which supports the issuance of the Rated Securities.
In this Guarantee these obligations are referred to as the "Guaranteed
Obligations". This Guarantee is given solely for the benefit of, and is
enforceable only by, the Beneficiary or any trustee as assignee of the
Beneficiary to which this Guarantee has been validly assigned in accordance
with applicable law and who is acting as trustee for the investors in the
Rated Securities.
2. This Guarantee constitutes a Guarantee of payment and not of collection
and is not conditional or contingent upon any attempts to collect from, or
pursue or exhaust any rights or remedies against, THE GUARANTEED SUBSIDIARY. A
demand for payment hereunder may at the Beneficiary's option be made in
writing addressed to the Chief Financial Officer of the Guarantor. This
Guarantee is not however dependent in any way on the manner of the demand for
payment. Delay in making a claim will not affect the Guarantor's obligations
under this Guarantee unless the relevant legal limitation period has expired.
3. This Guarantee constitutes, and is intended by the Guarantor to
constitute, an unlimited non-accessory undertaking (,,unbeschrankte, nicht
akzessorische Verpflichtung") within the meaning of Article 111 of the Swiss
Code of Obligations (,CO`) and is not a mere surety (,,Burgschaft") within the
meaning of Article 492 et seq of the CO.
4. Notwithstanding any reference to the obligations of THE GUARANTEED
SUBSIDIARY, the Guarantor's obligations under this Guarantee are its absolute
and independent obligations as a primary obligor. Payment of a claim hereunder
is required as soon as the Guaranteed Obligations are due and payable.
5. To the extent that any event or circumstance would give rise to any
legal or equitable discharge, defence or other rights of the Guarantor under
this Guarantee, but which event or circumstance would not give rise to any
discharge, defence or rights of THE GUARANTEED SUBSIDIARY under the
Agreements, the Guarantor hereby fully waives, subject to paragraph 7 below,
such discharge, defence, or rights and the Guarantor's liability hereunder
shall continue as if such event or circumstance had not arisen.
6. The Guarantor further agrees, subject to paragraph 7 below, that to the
extent that any event or circumstance gives rise to any legal or equitable
discharge, defence or other rights available to both the Guarantor under the
Guarantee and THE GUARANTEED SUBSIDIARY under the Agreements, the Guarantor
hereby agrees to waive such discharge, defence or other rights against the
Beneficiary, until such time as all the Guaranteed Obligations in relation to
the same event or circumstance have been fully met as required to protect
investors in the Rated Securities.
7. Notwithstanding any other provision of this Guarantee, the Guarantor
will have the right, prior to making any payment under this Guarantee, to (a)
assert such rights of offset as are set forth in the Agreement to the extent
that such rights relate to amounts due and payable by the Beneficiary to THE
GUARANTEED SUBSIDIARY and not to amounts which are subject to dispute; and (b)
defend manifestly fraudulent claims under this Guarantee made by the
Beneficiary.
8. This Guarantee will continue in full force and effect in relation to all
Guaranteed Obligations until all the Guaranteed Obligations have been
satisfied in full. For the avoidance of doubt, all Guaranteed Obligations
entered into by THE GUARANTEED SUBSIDIARY during the term of this Guarantee
shall be honoured in accordance with this Guarantee and shall be binding on
the Guarantor and its successors and assigns. This Guarantee may be amended
only as necessary to reflect changes to the Guaranteed Obligations which are
validly agreed to by the Beneficiary in accordance with the terms of the Rated
Securities, including any requirement to obtain the consent of some or all of
the investors in the Rated Securities.
9. If any payment by THE GUARANTEED SUBSIDIARY is avoided, recaptured or
reduced as a result of insolvency or any similar event affecting creditors
rights generally having occurred in respect of THE GUARANTEED SUBSIDIARY, the
Guarantor's liability under this Guarantee shall continue as if the avoided,
recaptured or reduced payment had not occurred.
10. Upon payment by the Guarantor to the Beneficiary of any amount due under
this Guarantee, the Guarantor shall be entitled to require the assignment to
it of the rights of the Beneficiary against THE GUARANTEED SUBSIDIARY to the
extent satisfied by such payment, and the Beneficiary will take at the
Guarantor's expense such steps as the Guarantor may reasonably require to
implement such assignment. The Guarantor shall not exercise any rights
2
against THE GUARANTEED SUBSIDIARY which it may acquire in consequence of such
payment and assignment unless and until all the Guaranteed Obligations to the
Beneficiary shall have been paid in full.
11. This Guarantee is governed and will be construed in accordance with
Swiss law. The exclusive place of jurisdiction for any legal proceeding
hereunder shall be Zurich, Switzerland.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be executed in
its name as of the 1st day of March, 2007.
SWISS REINSURANCE COMPANY
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Member of Senior Member of Senior
Management Management
3
Swiss Reinsurance Company
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Telephone ▇▇▇ ▇▇▇ ▇▇▇▇
Fax ▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇.▇▇▇▇▇▇▇.▇▇▇
March 1, 2007
Guarantee
To: The Bank of New York, (the "Beneficiary"), not in its individual capacity
but solely as trustee on behalf of the Supplemental Interest Trust for the
CWALT, Inc. Alternative Loan Trust 2007-OA3 established pursuant to a Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement") dated as of
February 1, 2007 among CWALT, Inc., as depositor, Countrywide Home Loans
Servicing LP., as master servicer, 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, and The Bank of New York, as trustee for the benefit of the LIBOR
Certificates (as defined in the Pooling and Servicing Agreement) (the "Rated
Securities").
1. The undersigned, SWISS REINSURANCE COMPANY, a Swiss company (the
"Guarantor"), hereby absolutely and unconditionally guarantees the prompt
payment as and when due of all obligations of its indirect, wholly-owned
subsidiary SWISS RE FINANCIAL PRODUCTS CORPORATION, a Delaware corporation
("THE GUARANTEED SUBSIDIARY") under, in connection with or ancillary to a long
form confirmation (Reference Number 1297187) dated as of March 1, 2007 between
the Beneficiary and THE GUARANTEED SUBSIDIARY as amended or restated from time
to time (the "Agreement") which supports the issuance of the Rated Securities.
In this Guarantee these obligations are referred to as the "Guaranteed
Obligations". This Guarantee is given solely for the benefit of, and is
enforceable only by, the Beneficiary or any trustee as assignee of the
Beneficiary to which this Guarantee has been validly assigned in accordance
with applicable law and who is acting as trustee for the investors in the
Rated Securities.
2. This Guarantee constitutes a Guarantee of payment and not of collection
and is not conditional or contingent upon any attempts to collect from, or
pursue or exhaust any rights or remedies against, THE GUARANTEED SUBSIDIARY. A
demand for payment hereunder may at the Beneficiary's option be made in
writing addressed to the Chief Financial Officer of the Guarantor. This
Guarantee is not however dependent in any way on the manner of the demand for
payment. Delay in making a claim will not affect the Guarantor's obligations
under this Guarantee unless the relevant legal limitation period has expired.
3. This Guarantee constitutes, and is intended by the Guarantor to
constitute, an unlimited non-accessory undertaking (,,unbeschrankte, nicht
akzessorische Verpflichtung") within the meaning of Article 111 of the Swiss
Code of Obligations (,CO`) and is not a mere surety (,,Burgschaft") within the
meaning of Article 492 et seq of the CO.
4. Notwithstanding any reference to the obligations of THE GUARANTEED
SUBSIDIARY, the Guarantor's obligations under this Guarantee are its absolute
and independent obligations as a primary obligor. Payment of a claim hereunder
is required as soon as the Guaranteed Obligations are due and payable.
5. To the extent that any event or circumstance would give rise to any
legal or equitable discharge, defence or other rights of the Guarantor under
this Guarantee, but which event or circumstance would not give rise to any
discharge, defence or rights of THE GUARANTEED SUBSIDIARY under the
Agreements, the Guarantor hereby fully waives, subject to paragraph 7 below,
such discharge, defence, or rights and the Guarantor's liability hereunder
shall continue as if such event or circumstance had not arisen.
6. The Guarantor further agrees, subject to paragraph 7 below, that to the
extent that any event or circumstance gives rise to any legal or equitable
discharge, defence or other rights available to both the Guarantor under the
Guarantee and THE GUARANTEED SUBSIDIARY under the Agreements, the Guarantor
hereby agrees to waive such discharge, defence or other rights against the
Beneficiary, until such time as all the Guaranteed Obligations in relation to
the same event or circumstance have been fully met as required to protect
investors in the Rated Securities.
7. Notwithstanding any other provision of this Guarantee, the Guarantor
will have the right, prior to making any payment under this Guarantee, to (a)
assert such rights of offset as are set forth in the Agreement to the extent
that such rights relate to amounts due and payable by the Beneficiary to THE
GUARANTEED SUBSIDIARY and not to amounts which are subject to dispute; and (b)
defend manifestly fraudulent claims under this Guarantee made by the
Beneficiary.
8. This Guarantee will continue in full force and effect in relation to all
Guaranteed Obligations until all the Guaranteed Obligations have been
satisfied in full. For the avoidance of doubt, all Guaranteed Obligations
entered into by THE GUARANTEED SUBSIDIARY during the term of this Guarantee
shall be honoured in accordance with this Guarantee and shall be binding on
the Guarantor and its successors and assigns. This Guarantee may be amended
only as necessary to reflect changes to the Guaranteed Obligations which are
validly agreed to by the Beneficiary in accordance with the terms of the Rated
Securities, including any requirement to obtain the consent of some or all of
the investors in the Rated Securities.
9. If any payment by THE GUARANTEED SUBSIDIARY is avoided, recaptured or
reduced as a result of insolvency or any similar event affecting creditors
rights generally having occurred in respect of THE GUARANTEED SUBSIDIARY, the
Guarantor's liability under this Guarantee shall continue as if the avoided,
recaptured or reduced payment had not occurred.
10. Upon payment by the Guarantor to the Beneficiary of any amount due under
this Guarantee, the Guarantor shall be entitled to require the assignment to
it of the rights of the Beneficiary against THE GUARANTEED SUBSIDIARY to the
extent satisfied by such payment, and the Beneficiary will take at the
Guarantor's expense such steps as the Guarantor may reasonably require to
implement such assignment. The Guarantor shall not exercise any rights
2
against THE GUARANTEED SUBSIDIARY which it may acquire in consequence of such
payment and assignment unless and until all the Guaranteed Obligations to the
Beneficiary shall have been paid in full.
11. This Guarantee is governed and will be construed in accordance with
Swiss law. The exclusive place of jurisdiction for any legal proceeding
hereunder shall be Zurich, Switzerland.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be executed in
its name as of the 1st day of March, 2007.
SWISS REINSURANCE COMPANY
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇ ▇▇▇▇▇▇
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Member of Senior Member of Senior
Management Management
3
