The Swap Contract Administration Agreement
EXHIBIT
99.6
This
SWAP
CONTRACT ADMINISTRATION AGREEMENT, dated as of March 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 Deutsche
Bank
AG, New York Branch (“Deutsche
Bank”
and,
the “Counterparty”),
with
a Trade Date of March 27, 2007 and a reference number of Global No. N592347N
(the “Class
A-1-A Swap Contract”),
an
interest rate swap agreement between CHL and Deutsche Bank with a Trade Date
of
March 27, 2007 and a reference number of Global No. N592349N (the “Class
A-1-B Swap Contract”),
an
interest rate swap agreement between CHL and Deutsche Bank with a Trade Date
of
March 27, 2007 and a reference number of Global No. N592351N (the “Class
A-2-A Swap Contract”)
and an
interest rate swap agreement between CHL and Deutsche Bank with a Trade Date
of
March 27, 2007 and a reference number of Global No. N592352N (the “Class
A-3 Swap Contract”
and,
together with the Class A-1-A Swap Contract, the Class A-1-B Swap Contract
and
the Class A-2-A Swap Contract, the “Swap
Contracts”
and
each, a “Swap
Contract”),
copies of which are attached to this Agreement as Exhibit A;
WHEREAS,
CWALT, Inc. is conveying certain mortgage loans and other related assets to
a
trust fund, Alternative Loan Trust 2007-OA7 (the “Trust
Fund”)
created pursuant to a Pooling and Servicing Agreement, dated as of March 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,
under the Swap Contracts 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;
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 each Swap
Contract;
WHEREAS,
CHL desires that the payments payable by the Counterparty on each 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 Contracts 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:
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:
In the
case of the Class A-1-A Swap Contract, the Class A-1-A Certificates. In the
case
of the Class A-1-B Swap Contract, the Class A-1-B Certificates. In the case
of
the Class A-2-A Swap Contract, the Class A-2-A Certificates. In the case of
the
Class A-3 Swap Contract, the Class A-3 Certificates.
ISDA
Master Agreement:
The
1992 ISDA Master Agreement (Multicurrency - Cross Border), including the
Schedule and Credit Support Annex thereto, dated March 30, 2007, between the
Counterparty and the Swap Contract Administrator.
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:
Each of
the Class A-1-A Swap Administration Account, the Class A-1-B Swap Administration
Account, the Class A-2-A Swap Administration Account and the Class A-3 Swap
Administration 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 related Benefited Certificates and
designated “The Bank of New York for Deutsche Bank AG, New York Branch and
certain registered Holders of CWALT, Inc., Mortgage Pass-Through Certificates,
Series 2007-OA7”. Funds in each Swap Administration Account shall be held for
the Counterparty and the Trustee on behalf of the Holders of the related
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 Swap Contracts 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 Accounts.
The
Swap
Contract Administrator hereby agrees to receive (i) on behalf of the Trustee,
all amounts paid by the Counterparty under the Swap Contracts 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
Contracts.
The
Swap
Contract Administrator shall establish and maintain four separate Swap
Administration Accounts: (i) the Class A-1-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 Class A-1-A Swap Contract and (y) all
amounts payable by the Counterparty under the Class A-1-A Swap Contract, (ii).
the Class A-1-B Swap Administration Account, into which the Swap Contract
Administrator shall deposit or cause to be deposited on the Business Day of
receipt, (x) all amounts remitted by the Trustee for payment to the Counterparty
pursuant to the Class A-1-B Swap Contract and (y) all amounts payable by the
Counterparty under the Class A-1-B Swap Contract, (iii) the Class A-2-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 Class
A-2-A Swap Contract and (y) all amounts payable by the Counterparty under the
Class A-2-A Swap Contract and (iv) the Class A-3 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 Class A-3 Swap Contract
and (y) all amounts payable by the Counterparty under the Class A-3 Swap
Contract. All funds deposited in the Swap Administration Accounts shall be
held
for the benefit of the Counterparty and the Trustee on behalf of the Holders
of
the related Class of Benefited Certificates until withdrawn in accordance with
Section 4.
Each
Swap
Administration Account shall be an “Eligible Account” as defined in the Pooling
and Servicing Agreement. Funds in each Swap Administration Account shall remain
uninvested.
The
Swap
Contract Administrator shall give at least 30 days advance notice to the
Counterparty and the Trustee of any proposed change of location of any Swap
Administration Account prior to any change thereof.
4. Calculations;
Distribution of Payments; Delivery of Notices.
The
Swap
Contract Administrator hereby agrees to make payments with respect to each
Swap
Contract based on the information provided by the Trustee and the 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 with respect to
a
Swap Contract, the Swap Contract Administrator shall withdraw the amount of
such
payment from the related Swap Administration Account and distribute such amount
to the Trustee for deposit into the related Swap Account.
On
the
Business Day of receipt of any payment from the Trustee with respect to a Swap
Contract for payment to the Counterparty, the Swap Contract Administrator shall
withdraw the amount of such payment from the related Swap Administration Account
and distribute such amount to the Counterparty in accordance with the wiring
instructions specified in the related Swap Contract.
The
Swap
Contract Administrator shall prepare and deliver any notices required to be
delivered under each Swap Contract.
On
the
Business Day of receipt of any notices, information or reports received by
the
Swap Contract Administrator from 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 in respect of any Swap Contract.
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 Contracts and the ISDA
Master Agreement (such as the right to designate an Early Termination Date
following an Event of Default or Termination Event (each such term as defined
in
the ISDA Master Agreement)).
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 ISDA Master Agreement 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 the
rating of the Counterparty falling below the Approved Ratings Threshold or
the
Required Ratings Threshold (as defined in the ISDA Master Agreement), the Swap
Contract Administrator, at the direction of the Trustee, shall demand payment
of
the Delivery Amount from the Counterparty, (as defined in the ISDA Master
Agreement) on each Valuation Date (as defined in the ISDA Master Agreement)
and
perform its other obligations in accordance with the ISDA Master Agreement
and
(ii) take such other action required under the ISDA Master Agreement. If a
Delivery Amount is demanded, the Swap Contract Administrator shall establish
an
account to hold cash or other eligible investments pledged under the ISDA Master
Agreement. 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 ISDA Master Agreement) pledged under the ISDA Master Agreement
shall not be part of any Swap Administration Account unless they are applied
in
accordance with the ISDA Master Agreement to make a payment due to the Swap
Contract Administrator pursuant to the Swap Contracts.
In
the
event that any Swap Contract is terminated, CHL shall assist the Swap Contract
Administrator in procuring a replacement swap contract with terms approximating
those of that 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 to the Trustee on future dates
based
on information provided by the Trustee.
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, the Swap Contract Administrator
shall remit to the Trustee such upfront amount (based on information provided
by
the Trustee) to be included in Interest Funds and the Principal Distribution
Amount for the following Distribution Date to the extent that a Swap Termination
Payment is payable to the Counterparty in connection with the termination of
the
original Swap Contract (or was previously paid to the Counterparty and Interest
Funds and the Principal Distribution Amount for one or more preceding
Distribution Dates were used to cover such Swap Termination Payment). Any
upfront amount paid by a replacement counterparty that is not remitted by the
Swap Contract Administrator to the Trustee to cover any Swap Termination Payment
payable or previously paid to the Counterparty in respect of the original Swap
Contract for the following Distribution Date 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.
|
| (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).
|
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 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 and
any
director, officer, employee or agent of the Swap Contract Administrator
shall be indemnified by CHL and held harmless against any loss, liability
or expense incurred in connection with any legal action relating
to this
Agreement, the Swap Contracts or the Assignment 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 Contracts and
the
Assignment Agreement. Notwithstanding anything to the contrary in
this
Section 7, any expenses, disbursements, losses or liabilities of
the Swap
Contract Administrator or any director, officer, employee or agent
thereof
that are made or incurred as a result of any request, order or direction
of any NIM Insurer or any of the Certificateholders made to the Trustee
as
contemplated by Section 8.02(ix) of the Pooling and Servicing Agreement
and consequently made to the Swap Contract Administrator by the Trustee
shall be payable by the Trustee out of the security or indemnity
provided
by any NIM Insurer or such Certificateholders pursuant to Section
8.02(ix)
of the Pooling and Servicing
Agreement.
|
| (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 Contracts
and
the disbursement by the Swap Contract Administrator of all funds
received
under the Swap Contracts 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.
|
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/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Assistant Treasurer
THE
BANK OF NEW YORK,
not
in its individual or corporate capacity but solely as Trustee
By:/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Assistant Treasurer
COUNTRYWIDE
HOME LOANS, INC.
By:/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title:
Managing Director
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EXHIBIT
A
SWAP
CONTRACTS
A-1