to the Master Agreement dated as of August 13, 2007 between LEHMAN BROTHERS SPECIAL FINANCING INC. (“Party A”),
EXHIBIT
99.3
(Multicurrency-Cross
Border)
SCHEDULE
to
the
dated
as of August 13, 2007
between
XXXXXX
BROTHERS SPECIAL FINANCING
INC. (“Party A”),
and
THE
BANK OF NEW YORK, not in its
individual or corporate capacity but solely as Swap Contract
Administrator for CWABS Asset-Backed Certificates Trust 2007-12 (“Party B”)
Administrator for CWABS Asset-Backed Certificates Trust 2007-12 (“Party B”)
All
terms used herein and not otherwise defined are given
their meaning in the Pooling and Servicing Agreement for CWABS Asset-Backed
Certificates Trust 2007-12, dated as of August 1, 2007 among CWABS, Inc.,
as
depositor, Park Monaco Inc., as a seller, Park Sienna LLC, as a seller,
Countrywide Home Loans, Inc., as a seller, Countrywide Home Loans Servicing
LP,
as master servicer and The Bank of New York, as trustee (the “Pooling and
Servicing Agreement”).
Part
1: Termination Provisions
For
the purposes of this Agreement:
|
(a)
|
“Specified
Entity” will not apply to Party A or Party B for any
purpose.
|
|
(b)
|
“Specified
Transaction” will not apply to Party A or Party B for any
purpose.
|
|
(c)
|
Events
of Default.
|
The
statement below that an Event of Default will
apply to a specific party means that upon the occurrence of such an Event
of
Default with respect to such party, the other party shall have the rights
of a
Non-defaulting Party under Section 6 of this Agreement; conversely, the
statement below that such event will not apply to a specific party means
that
the other party shall not have such rights.
|
|
(i)
|
The
“Failure to Pay or Deliver” provisions of Section 5(a)(i)
will apply to Party A and will apply to Party B; provided, however,
that
Section 5(a)(i) is hereby amended by replacing the word “third” with the
word “first”.
|
|
|
(ii)
|
The
“Breach of Agreement” provisions of Section 5(a)(ii) will
apply to Party A and will not apply to Party
B.
|
|
|
(iii)
|
The
“Credit Support Default” provisions of Section 5(a)(iii)
will apply to Party A and will not apply to Party B except that
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;
provided,
however, that notwithstanding anything to the contrary in Section
5(a)(iii)(1), any failure by Party A to comply with or perform
any
obligation to be complied with or performed by Party A under
the Credit
Support Annex shall not constitute an Event of Default under
Section
5(a)(iii) unless (i) a Xxxxx’x Second Trigger Ratings Event has occurred
and been continuing for 30 or more Local Business Days or (ii)
an S&P
Required Ratings Event has occurred and been continuing for 10
or more
Local Business Days.
|
|
|
(iv)
|
The
“Misrepresentation” provisions of Section 5(a)(iv) will
apply to Party A and will not apply to Party
B.
|
1
|
|
(v)
|
The
“Default under Specified Transaction” provisions of
Section 5(a)(v) will not apply to Party A and will not apply
to Party
B.
|
|
|
(vi)
|
The
“Cross Default” provisions of Section 5(a)(vi) will apply
to Party A and will not apply to Party B. For purposes of
Section 5(a)(vi), solely with respect to Party
A:
|
“Specified
Indebtedness” will have the meaning
specified in Section 14.
“Threshold
Amount” means an amount equal to three percent (3%) of the
Stockholders’ Equity of Xxxxxx Brothers Holdings Inc. (“Xxxxxx Brothers Holdings
Inc.” or “Holdings”), in the case of Party A and Holdings (or its equivalent in
any other currency).
“Stockholders’
Equity”
means
with respect to an
entity, at any time, the sum at such time of (i) its capital stock (including
preferred stock) outstanding, taken at par value, (ii) its capital surplus
and
(iii) its retained earnings, minus (iv) treasury stock, each to be determined
in
accordance with generally accepted accounting principles consistently
applied.
|
|
(vii)
|
The
“Bankruptcy” provisions of Section 5(a)(vii) will apply
to Party A and will apply to Party B except that the provisions
of Section
5(a)(vii)(2), (6) (to the extent that such provisions refer to
any
appointment contemplated or effected by the Pooling and Servicing
Agreement or any appointment to which Party B has not become
subject), (7)
and (9) will not apply to Party B; provided that, with respect
to Party B
only, (i) Section 5(a)(vii)(4) is hereby amended by adding after
the words
“against it” the words “(excluding any proceeding or petition instituted
or presented by Party A or its Affiliates)” and (ii) Section 5(a)(vii)(8)
is hereby amended by deleting the words “to (7) (inclusive)” and inserting
in lieu thereof “, (3), (4) as amended, (5) and (6) as
amended”.
|
|
|
(viii)
|
The
“Merger Without Assumption” provisions of Section
5(a)(viii) will apply to Party A and will not apply to Party
B.
|
|
(d)
|
Termination
Events.
|
The
statement below that a Termination Event will apply to a specific party means
that upon the occurrence of such a Termination Event, if such specific party
is
the Affected Party with respect to a Tax Event, the Burdened Party with respect
to a Tax Event Upon Merger (except as noted below) or the non-Affected Party
with respect to a Credit Event Upon Merger, as the case may be, such specific
party shall have the right to designate an Early Termination Date in accordance
with Section 6 of this Agreement; conversely, the statement below that such
an
event will not apply to a specific party means that such party shall not
have
such right; provided, however, with respect to “Illegality” the statement that
such event will apply to a specific party means that upon the occurrence
of such
a Termination Event with respect to such party, either party shall have the
right to designate an Early Termination Date in accordance with Section 6
of
this Agreement.
| (i) | The “Illegality” provisions of Section 5(b)(i) will apply to Party A and will apply to Party B. |
|
|
(ii)
|
The
“Tax Event” provisions of Section 5(b)(ii) will apply to
Party A except that, for purposes of the application of Section
5(b)(ii)
to Party A, Section 5(b)(ii) is hereby amended by deleting 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)” and the “Tax Event”
provisions of Section 5(b)(ii) will apply to Party
B.
|
|
|
(iii)
|
The
“Tax Event Upon Merger” provisions of Section 5(b)(iii)
will apply to Party A and will apply to Party B, provided that
Party A
shall not be entitled to designate an Early Termination Date by
reason of
a Tax Event upon Merger in respect of which it is the Affected
Party.
|
2
|
|
(iv)
|
The
“Credit Event Upon Merger” provisions of Section 5(b)(iv)
will not apply to Party A and will not apply to Party
B.
|
|
(e)
|
The
“Automatic Early Termination” provision of Section 6(a)
will not apply to Party A and will not apply to Party
B.
|
|
(f)
|
Payments
on Early Termination. For the purpose of Section 6(e)
of this Agreement:
|
|
|
(i)
|
Market
Quotation will apply, provided, however, that, if an Early Termination
Date has been designated by Party B in respect of a Derivative
Provider
Trigger Event, the following provisions will
apply:
|
|
|
(A)
|
The
definition of Market Quotation in Section 14 shall be deleted in
its
entirety and replaced with the
following:
|
“Market
Quotation” means, with respect to one or more Terminated
Transactions, a Firm Offer 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 Replacement Transaction and (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.
|
|
(B)
|
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) equal to:
|
|
(a)
|
If
a Market Quotation for the relevant Terminated Transaction or group
of
Terminated Transactions is accepted by Party B so as to become
legally
binding on or before 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 one Local Business Day prior to the Early Termination Date
(such day,
the “Latest Settlement Amount Determination Day”), the Termination
Currency Equivalent of the amount (whether positive or negative)
of such
Market Quotation;
|
|
|
(b)
|
If,
on 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 communicated to Party B and remain
capable of becoming legally binding upon acceptance by Party B,
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);
or
|
|
|
(c)
|
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
|
3
have
been
communicated to Party B and remain capable of becoming legally binding upon
acceptance by Party B, 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.
|
|
(C)
|
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.
|
|
|
(D)
|
If
the Settlement Amount is a negative number, Section 6(e)(i)(3)
shall be
deleted in its entirety and replaced with the
following:
|
“(3)
Second Method and Market Quotation. If the Second Method and Market
Quotation apply, (I) Party B shall pay to Party A an amount equal to the
absolute value of the Settlement Amount in respect of the Terminated
Transactions, (II) Party B shall pay to Party A the Termination Currency
Equivalent of the Unpaid Amounts owing to Party A and (III) Party A shall
pay to
Party B the Termination Currency Equivalent of the Unpaid Amounts owing to
Party
B; provided, however, that (x) the amounts payable under the immediately
preceding clauses (II) and (III) shall be subject to netting in accordance
with
Section 2(c) of this Agreement and (y) notwithstanding any other provision
of
this Agreement, any amount payable by Party A under the immediately preceding
clause (III) shall not be netted-off against any amount payable by Party
B under
the immediately preceding clause (I).”
|
|
(E)
|
At
any time on or before the Latest Settlement Amount Determination
Day at
which two or more Market Quotations have been communicated to Party
B and
remain capable of becoming legally binding upon acceptance by Party
B,
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).
|
|
|
(ii)
|
The
Second Method will apply.
|
|
(g)
|
“Termination
Currency” means USD.
|
|
(h)
|
Additional
Termination Events. Additional Termination Events will
apply as provided in Part 5(c).
|
Part
2: Tax Representations
|
(a)
|
Tax
Representations.
|
|
|
(i)
|
Payer
Representations. For the purpose of Section 3(e) of
this Agreement:
|
|
|
(A)
|
Party
A makes the following
representation(s):
|
It
is not
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax from any payment (other
than interest under Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to
be made
by it to the other party under this Agreement. In making this
representation, it may rely on: the accuracy of any representations made
by the
other party pursuant to Section 3(f) of this Agreement; (ii) the satisfaction
of
the agreement contained in Section 4(a)(i) or 4(a)(iii) of this Agreement
and
the accuracy and effectiveness of any document provided by the other party
pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement; and (iii) the
satisfaction of
4
the
agreement of the other party contained in Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation where reliance
is
placed on clause (ii) and the other party does not deliver a form or document
under Section 4(a)(iii) by reason of material prejudice to its legal or
commercial position.
|
|
(B)
|
Party
B makes the following
representation(s):
|
None.
|
|
(ii)
|
Payee
Representations. For the purpose of Section 3(f) of
this Agreement:
|
|
|
(A)
|
Party
A makes the following
representation(s):
|
Party
A
represents that it is a corporation duly organized and validly existing under
the laws of the State of Delaware.
|
|
(B)
|
Party
B makes the following
representation(s):
|
None.
|
(b)
|
Tax
Provisions.
|
|
|
(i)
|
Gross
Up. Section 2(d)(i)(4) shall not apply to Party B as X
and Section 2(d)(ii) shall not apply to Party B as Y, in each case
such
that Party B shall not be required to pay any additional amounts
referred
to therein.
|
|
|
(ii)
|
Indemnifiable
Tax. The definition of “Indemnifiable Tax” in Section
14 is deleted in its entirety and replaced with the
following:
|
“Indemnifiable
Tax” means, in relation to payments by Party A, any Tax and, in
relation to payments by Party B, no Tax.
Part
3: Agreement to Deliver Documents
(a)
Tax
forms, documents or certificates to be delivered are:
|
Party
required to deliver document
|
Form/Document/Certificate
|
Date
by which to be delivered
|
|
Party
A and Party B
|
Any
document required or reasonably requested to allow the other party
to make
payments under this Agreement without any deduction or withholding
for or
on the account of any Tax or with such deduction or withholding
at a
reduced rate.
|
Promptly
after reasonable demand by either
party..
|
5
|
(b)
|
Other
Documents to be delivered are (any document to be delivered below
via
internet shall be deemed to be furnished in writing for purposes
of
Section 3(d) of the
Agreement):
|
|
Party
required to deliver document
|
Form/Document/Certificate
|
Date
by which to be delivered
|
Covered
by Section 3(d) representation
|
|
Party
A and Party B
|
Any
documents required or reasonably requested by the receiving party
to
evidence authority of the delivering party or its Credit Support
Provider,
if any, to execute and deliver this Agreement, any Confirmation
and any
Credit Support Documents to which it is a party, and to evidence
the
authority of the delivering party or its Credit Support Provider
to
perform its obligations under this Agreement, such Confirmation
and/or
Credit Support Document, as the case may be.
|
Upon
execution.
|
Yes
|
|
Party
A and Party B
|
A
certificate of an authorized officer of the party, as to the incumbency
and authority of the respective officers of the party signing this
Agreement, any relevant Credit Support Document or any Confirmation,
as
the case may be.
|
Upon
execution
|
Yes
|
|
Party
A
|
A
copy of the annual report of its Credit Support Provider containing
audited consolidated financial statements for such fiscal year
certified
by independent public accountants and prepared in accordance with
generally accepted accounting principles consistently
applied.
|
Upon
request
|
Yes
|
|
Party
A
|
For
its most recent fiscal quarter, a copy of the unaudited financial
statements of its Credit Support Provider, prepared in
accordance with generally accepted accounting principles consistently
applied.
|
Upon
request
|
Yes
|
|
Party
A
|
An
opinion of counsel to such party reasonably satisfactory in form
and
substance to the other party regarding the enforceability of this
Agreement, any Confirmation and any Credit Support Documents to
which it
is a party.
|
Within
15 days of the execution of this Agreement
|
No
|
6
|
Party
required to deliver document
|
Form/Document/Certificate
|
Date
by which to be delivered
|
Covered
by Section 3(d) representation
|
|
Party
A
|
A
guarantee of Xxxxxx Brothers Holdings Inc. (“Holdings”) substantially in
the form of Exhibit B to this Schedule.
|
Upon
execution
|
No
|
|
Party
B
|
Executed
copy of the Pooling and Servicing Agreement
|
Upon
the filing of the Pooling and Servicing Agreement on the Security
and
Exchange Commission’s XXXXX system
|
Yes
|
|
Party
B
|
An
opinion of counsel to Party B reasonably acceptable to Party
A.
|
Within
15 days of the execution of this Agreement
|
No
|
|
Party
B
|
Monthly
Statement
|
At
such time as each is delivered by the Trustee
|
Yes
|
|
Party
B
|
Copy
of any notice delivered under the Pooling and Servicing Agreement
that
impacts this agreement.
|
Upon
availability
|
|
|
Party
B
|
All
reports that go to the Rating Agencies.
|
As
applicable.
|
Yes
|
|
Party
B
|
Each
material amendment, supplement or waiver to the Pooling and Servicing
Agreement, as proposed from time to time.
|
Promptly
upon learning of any proposed amendment, supplement or
waiver.
|
No
|
Part
4: Miscellaneous
|
(a)
|
Addresses
for Notices. For the purposes of Section 12(a) of this
Agreement:
|
Party
A: Address for notices or communications to Party
A:-
|
|
Address:
|
Xxxxxx
Brothers Special Financing Inc.
c/x Xxxxxx Brothers Inc.
Corporate Advisory Division
Transaction Managment Group
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00000
|
|
|
Attention:
|
Documentation
Manager
|
| Telephone No.: | (000) 000-0000 |
| Facsimile No.: | (000) 000-0000 |
|
|
For
all purposes.
|
7
Party
B: Address for notices or communications to Party B:
|
|
Address:
|
The
Bank of New York
000 Xxxxxxx Xxxxxx -- 0 X Xxxxx
Xxx Xxxx, XX
00000
|
|
|
Attention:
|
Corporate
Trust Administration MBS Administration,
CWABS, Series
2007-12
|
| Telephone No.: | (000) 000-0000 |
| Facsimile No.: | (000) 000-0000 |
|
|
For
all purposes.
|
|
(b)
|
Process
Agent. For the purposes of Section 13(c) of this
Agreement:
|
Party
A
appoints as its Process Agent: Not Applicable.
Party
B
appoints as its Process Agent: Not Applicable.
|
(c)
|
Offices.
The provisions of Section 10(a) will apply to this
Agreement.
|
|
(d)
|
Multibranch
Party. For the purpose of Section 10(c) of this
Agreement:
|
Party
A
is not a Multibranch Party.
Party
B
is not a Multibranch Party.
|
(e)
|
Calculation
Agent. The Calculation Agent is Party A; provided however,
if an Event of Default occurs and is continuing with respect to
Party A,
then Party B shall be entitled to appoint a financial institution
which
would qualify as a Reference Market-maker to act as Calculation
Agent
until the discontinuance of the Event of Default with respect to
Party A
or the designation of an Early Termination Date under Section 6(c)(ii),
reasonably acceptable to Party A, the cost for which shall be borne
by
Party A.
|
|
(f)
|
Credit
Support Document. Credit Support Document
means
|
|
|
Party
A:
|
The
Credit Support Annex and any guarantee in support of Party A’s obligations
under this Agreement.
|
|
|
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.
|
|
|
Party
A:
|
The
guarantor under any guarantee in support of Party A’s obligations under
this Agreement.
|
|
|
Party
B:
|
None.
|
|
(h)
|
|
(i)
|
Netting
of Payments. Subparagraph (ii) of Section 2(c) of this
Agreement will apply to all
Transactions.
|
8
|
(j)
|
“Affiliate”
will have the meaning specified in Section 14 of this Agreement,
provided,
however, that with respect to Party A (except for the purpose of
Part
1(c)(vii), such definition shall be understood to exclude Xxxxxx
Brothers
Derivative Products Inc. and Xxxxxx Brothers Financial Products
Inc., and
with respect to Party B, Party B shall be deemed to have no
Affiliates for purposes of this Agreement, including for purposes
of
Section 6(b)(ii).
|
Part
5: Other Provisions
|
(a)
|
Definitions.
Unless otherwise specified in a Confirmation, this Agreement
and
each Transaction under this Agreement are subject to the 2000 ISDA
Definitions as published and copyrighted in 2000 by the International
Swaps and Derivatives Association, Inc. (the
“Definitions”) and will be governed in all relevant
respects by the provisions set forth in the Definitions, without
regard to
any amendment to the Definitions subsequent to the date
hereof. The provisions of the Definitions are hereby
incorporated by reference in and shall be deemed a part of this
Agreement,
except that (i) references in the Definitions to a “Swap Transaction”
shall be deemed references to a “Transaction” for purposes of this
Agreement and (ii) references to a “Transaction” in this Agreement shall
be deemed references to a “Swap Transaction” for purposes of the
Definitions.
|
|
(b)
|
Amendments
to ISDA Master Agreement.
|
|
|
(i)
|
Single
Agreement. Section 1(c) is hereby amended by the
adding the words “including, for the avoidance of doubt, the Credit
Support Annex” after the words “Master
Agreement”.
|
|
|
(ii)
|
Representations. Section
3 is hereby amended by adding at the end thereof the following
subsection
(g):
|
|
|
“(g)
|
Relationship
Between Parties.
|
|
|
(1)
|
Nonreliance. (i)
It is not relying on any statement or representation of the other
party
regarding any Transaction (whether written or oral), other than
the
representations expressly made in this Agreement or the Confirmation
in
respect of that Transaction and (ii) it has consulted with its
own legal,
regulatory, tax, business, investment, financial and accounting
advisors
to the extent it has deemed necessary and it has made its own investment,
hedging and trading decisions based upon its own judgment and upon
any
advice from such advisors as it has deemed necessary and not upon
any view
expressed by the other party.
|
|
|
(2)
|
Evaluation
and Understanding. (i) It has the capacity to evaluate
(internally or through independent professional advice) each Transaction
and has made its own decision to enter into each Transaction and
(ii) It
understands the terms, conditions and risks of each Transaction
and is
willing and able to accept those terms and conditions and to assume
those
risks, financially and otherwise.
|
|
|
(3)
|
Purpose. It
is entering into each Transaction for the purposes of managing
its
borrowings or investments, hedging its underlying assets or liabilities
or
in connection with a line of
business.
|
|
|
(4)
|
Status
of Parties. The other party is not acting as an agent,
fiduciary or advisor for it in respect of any
Transaction.
|
|
|
(5)
|
Eligible
Contract Participant. It is an “eligible swap participant” as
such term is defined in Section 35.1(b)(2) of the regulations (17
C.F.R.
35) promulgated under, and an “eligible contract participant” as defined
in Section 1(a)(12) of, the Commodity Exchange Act, as
amended.”
|
9
|
|
(iii)
|
Transfer
to Avoid Termination Event. Section 6(b)(ii) is hereby
amended by (i) deleting the words “or if a Tax Event Upon Merger occurs
and the Burdened Party is the Affected Party,” and (ii) deleting the words
“to transfer” and inserting the words “to effect a Permitted Transfer” in
lieu thereof.
|
|
|
(iv)
|
Jurisdiction.
Section 13(b) is hereby amended by: (i) deleting in the
second
line of subparagraph (i) thereof the word "non-", (ii) deleting
“; and”
from the end of subparagraph 1 and inserting “.” in lieu thereof and (iii)
deleting the final paragraph
thereof.
|
|
|
(v)
|
Local
Business Day. The definition of Local Business Day in
Section 14 is hereby amended by the addition of the words “or any Credit
Support Document” after “Section 2(a)(i)” and the addition of the words
“or Credit Support Document” after
“Confirmation”.
|
|
(c)
|
Additional
Termination Events. The following Additional
Termination Events will apply:
|
|
|
(i)
|
Xxxxx’x
First Ratings Trigger Collateral Failure. If (A) it is
not the case that a Xxxxx’x Second Trigger Ratings Event has occurred and
been continuing for 30 or more Local Business Days and (B) Party
A has
failed to comply with or perform any obligation to be complied
with or
performed by Party A in accordance with the Credit Support Annex,
then an
Additional Termination Event shall have occurred with respect to
Party A
and Party A shall be the sole Affected Party with respect to such
Additional Termination Event.
|
|
|
(ii)
|
S&P
Approved Ratings Collateral Failure. If (A) it is not
the case that an S&P Required Ratings Event has occurred and been
continuing for 10 or more Local Business Days and (B) Party A has
failed
to comply with or perform any obligation to be complied with or
performed
by Party A in accordance with the Credit Support Annex, then an
Additional
Termination Event shall have occurred with respect to Party A and
Party A
shall be the sole Affected Party with respect to such Additional
Termination Event.
|
|
|
(iii)
|
Xxxxx’x
Second Ratings Trigger Replacement. If (A) a Xxxxx’x
Second Trigger Ratings Event has occurred and been continuing for
30 or
more Local Business Days and (B) at least one Eligible Replacement
has
made a Firm Offer that would, assuming the occurrence of an Early
Termination Date, qualify as a Market Quotation (as defined in
Part
1(f)(i) above) and such Firm Offer remains an offer that will become
legally binding upon such Eligible Replacement upon acceptance,
then an
Additional Termination Event shall have occurred with respect to
Party A
and Party A shall be the sole Affected Party with respect to such
Additional Termination Event.
|
|
|
(iv)
|
S&P
Required Ratings Failure. If (A) an S&P Required
Ratings Event has occurred and been continuing for 60 or more calendar
days and (B) Party A has failed to either (i) effect a Permitted
Transfer
or (ii) procure an Eligible Guarantee, then an Additional Termination
Event shall have occurred with respect to Party A and Party A shall
be the
sole Affected Party with respect to such Additional Termination
Event.
|
|
|
(v)
|
Supplemental
Pooling and Servicing Agreement Without Party A’s Prior Written
Consent. If Party B enters into an amendment and or supplement
to
the Pooling and Servicing Agreement or other modification to the
Pooling
and Servicing Agreement that could reasonably be expected to have
a
material adverse effect on Party A (excluding, for the avoidance
of doubt,
any amendment to the Pooling and Servicing Agreement that is entered
into
solely for the purpose of appointing a successor master servicer
or
trustee) without the prior written consent (such consent not to
be
unreasonably withheld) of Party A where such consent is required
under the
Pooling and Servicing Agreement, then an Additional Termination
Event
shall have occurred with respect to Party B and Party B shall be
the sole
Affected Party with respect to such Additional Termination
Event. Party B agrees with Party A that Party A shall be an
express third-party beneficiary of the Pooling and Servicing
Agreement.
|
10
|
|
(vi)
|
[Reserved]
|
|
|
(vii)
|
[Reserved]
|
|
|
(viii)
|
For
the avoidance of doubt, in the event that (A) a Xxxxx’x Second Trigger
Ratings Event has occurred and been continuing for 30 or more Local
Business Days and (B) an S&P Required Ratings Event has occurred and
been continuing for 60 or more calendar days, Party B shall be
entitled to
declare an Early Termination Date pursuant to Section 6(b)(iv)
and Part
5(c)(iv) for so long as such S&P Required Ratings Event is continuing,
notwithstanding the absence of a Firm Offer from an Eligible
Replacement.
|
|
(d)
|
Required
Ratings Downgrade Event. In the event that neither
Party A nor any Eligible Guarantor of Party A under an Eligible
Guarantee
has credit ratings that satisfy the S&P Required Ratings Threshold and
the Xxxxx’x Second Trigger Ratings Threshold (such event, a
“Required Ratings Downgrade Event”), then Party A shall,
as soon as reasonably practicable and so long as a Required Ratings
Downgrade Event is in effect, at its own expense, using commercially
reasonable efforts, either (A) effect a Permitted Transfer or (B)
procure
an Eligible Guarantee.
|
|
(e)
|
Regulation
AB Compliance. Party A and Party B agree that the terms of
the Item 1115 Agreement dated as of February 24, 2006, as amended
from
time to time (the “Regulation AB Agreement”), between Countrywide Home
Loans, Inc., CWABS, Inc., CWMBS, Inc., CWALT, Inc., CWHEQ, Inc.
and Xxxxxx
Brothers Special Financing Inc. shall be incorporated by reference
into
this Agreement so that Party B shall be an express third party
beneficiary
of the Regulation AB Agreement. A copy of the Regulation AB Agreement
is
attached hereto as Exhibit A.
|
|
(f)
|
Transfers.
|
|
|
(i)
|
Section
7 is hereby amended to read in its entirety as
follows:
|
“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 the Agreement or any Transaction without (a) the prior
written consent of the other party, (b) prior written notice to Xxxxx’x and (c)
satisfaction of the Rating Agency Condition with respect to S&P, except
that:
|
|
(a)
|
a
party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or
transfer of
all or substantially all its assets to, another entity (but without
prejudice to any other right or remedy under this
Agreement);
|
|
|
(b)
|
a
party may make such a transfer of all or any part of its interest
in any
amount payable to it from a Defaulting Party under Section 6(e);
and
|
|
|
(c)
|
Party
A may (at its own cost) transfer all or substantially all of its
rights
and obligations with respect to this Agreement to any other entity
that is
an Eligible Replacement (i) pursuant to Section 6(b)(ii) or the
Regulation
AB Agreement (subject to satisfaction of the Rating Agency Condition
with
respect to S&P) or (ii) in connection with a Replacement Transaction
or a Permitted Transfer”.
|
|
|
(ii)
|
If
an Eligible Replacement has made a Firm Offer (and such Firm Offer
remains
an offer that will become legally binding upon such Eligible Replacement
upon acceptance) to be the transferee pursuant to a transfer in
accordance
with clause (c) above, 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.
|
|
|
(iii)
|
Notwithstanding
anything to the contrary in Section 7 of the Agreement and Section
6(b)(ii) of this Agreement, Party A may make a Permitted Transfer
(1) to
any Affiliate of Holdings effective
|
11
upon
delivery to Party B of the guarantee by Holdings, in favor of Party B, of
the
obligations of such Affiliate, such guarantee to be identical to the guarantee
then in effect of the obligations of the transferor (except for the name,
address and the jurisdiction of the guarantor) or that otherwise satisfies
the
Rating Agency Condition, or (2) to any Eligible Replacement.
Any
purported transfer that is not in compliance with this Section will be
void.
|
(g)
|
Non-Recourse. Party
A acknowledges and agrees that, notwithstanding any provision in
this
Agreement to the contrary, the obligations of Party B hereunder
are
limited recourse obligations of Party B, payable solely from the
Swap
Trust and the proceeds thereof, in accordance with the priority
of
payments and other terms of the Pooling and Servicing Agreement
and that
Party A will not have any recourse to any of the directors, officers,
employees, shareholders or affiliates of the Party B with respect
to any
claims, losses, damages, liabilities, indemnities or other obligations
in
connection with any transactions contemplated hereby. In the event
that
the Swap Trust and the proceeds thereof should be insufficient
to satisfy
all claims outstanding following the realization of the account
held by
the Swap Trust and the proceeds thereof, any claims against or
obligations
of Party B under this Agreement and any Confirmation hereunder
still
outstanding shall be extinguished and thereafter not
revive. Party B shall not have liability for any failure or
delay in making a payment hereunder to Party A due to any failure
or delay
in receiving amounts in the account held by the Swap Trust from
the Trust
Fund created pursuant to the Pooling and Servicing
Agreement.
|
|
(h)
|
Timing
ofPayments 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
into 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.
|
|
(i)
|
Rating
Agency Notifications. Notwithstanding any other
provision of this Agreement, no Early Termination Date shall be
effectively designated hereunder by Party B and no transfer of
any rights
or obligations under this Agreement shall be made by either party
unless
each Swap Rating Agency has been provided prior written notice
of such
designation or transfer.
|
|
(j)
|
No
Set-off. Except as expressly provided for in Section
2(c), Section 6, Paragraph 8 of the Credit Support Annex or Part
1(f)(i)(D) 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.”.
|
|
(k)
|
Amendment. Notwithstanding
any provision to the contrary in this Agreement, no amendment of
either
this Agreement or any Transaction under this Agreement shall be
permitted
by either party unless each of the Swap Rating Agencies has been
provided
prior written notice of the same and the Rating Agency Condition
is
satisfied with respect to S&P.
|
|
(l)
|
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, to promptly
give
|
12
notice
of
such event or condition to the other Party and each Swap Rating Agency; provided
that failure to provide notice of such event or condition pursuant to this
Part
5(l) shall not constitute an Event of Default or a Termination
Event.
|
(m)
|
Proceedings. No
Relevant Entity shall institute against, or cause any other person
to
institute against, or join any other person in instituting against
Party
B, the Swap Trust or the Trust Fund formed pursuant to the Pooling
and
Servicing Agreement, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under
any
federal or state bankruptcy or similar law for a period of one
year (or,
if longer, the applicable preference period) and one day following
payment
in full of the Certificates. This provision will survive the
termination of this Agreement; provided that this provision shall
not
restrict or prohibit Party A from joining any other person, including,
without limitation, the Trustee, in any bankruptcy, reorganization,
arrangement, insolvency, moratorium or liquidation proceedings
already
commenced or other analogous proceedings already commenced under
applicable law. This provision will survive the termination of
this Agreement.
|
|
(n)
|
Swap
Contract Administrator Liability Limitations. Party A
and Party B agree to the following: (a) The Bank of New York (“BNY”) is
entering into this Agreement not in its individual or corporate
capacity,
but solely in its capacity as Swap Contract Administrator for CWABS
Asset-Backed Certificates Trust 2007-12; (b) in no case shall BNY
(or any
person acting as successor Swap Contract Administrator for CWABS
Asset-Backed Certificates Trust 2007-12) 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 Pooling
and Servicing Agreement. This Part 5(n) shall survive the termination
of
this Agreement.
|
|
(o)
|
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
invalid or unenforceable (in whole or in part) in any respect,
the
remaining terms, provisions, covenants and conditions hereof shall
continue in full force and effect as if this Agreement had been
executed
with the 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; provided, however, that this severability provision shall
not be
applicable if any provision of Section 2, 5, 6 or 13 (or any definition
or
provision in Section 14 to the extent it relates to, or is used
in or in
connection with, any such Section) shall be so held to be invalid
or
unenforceable.
|
The
parties shall endeavor to engage in good faith negotiations to replace any
invalid or unenforceable term, provision, covenant or condition with a valid
or
enforceable term, provision, covenant or condition, the economic effect of
which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
|
(p)
|
Accuracy
of Specified Information. Section
3(d) is hereby amended by inserting in the third line thereof after
the words “in every material respect” and before the period the phrase
“or, in the case of audited or unaudited financial statements, a
fair
presentation, in all material respects, of the financial condition
of the
relevant person.”
|
|
(q)
|
Escrow
Payments. If (whether by reason of the time difference
between the cities in which payments are to be made or otherwise)
it is
not possible for simultaneous payments to be made on any date on
which
both parties are required to make payments hereunder, either party
may at
its option and in its sole discretion notify the other party that
payments
on that date are to be made in escrow. In this case deposit of
the payment due earlier on that date shall be made by 2:00 pm (local
time
at the place for the earlier payment) on that date with an escrow
agent
selected by the notifying party, accompanied by irrevocable payment
instructions (i) to release the deposited payment to the intended
recipient upon receipt by the escrow agent of the required deposit
of any
corresponding payment payable by the other party on the same date
accompanied by irrevocable payment instructions to the same effect
or (ii)
if the required deposit of the
corresponding
|
13
payment
is not made on that same date, to return the payment deposited to the party
that
paid it into escrow. The party that elects to have payments made in
escrow shall pay all costs of the escrow arrangements.
|
(r)
|
Consent
to Recording. Each party hereto consents to the
monitoring or recording, at any time and from time to time, by
the other
party of any and all communications between trading, marketing
and
operations personnel of the parties and their Affiliates, waives
any
further notice of such monitoring or recording and agrees to notify
such
personnel of such monitoring or
recording.
|
|
(s)
|
Waiver
of Jury Trial. Each party waives any right it may have
to a trial by jury in respect of any in respect of any suit, action
or
proceeding relating to this Agreement or any Credit Support Document,
and
acknowledges that this waiver is a material inducement to the other
party’s entering into this agreement and each transaction
hereunder.
|
|
(t)
|
No
Violation or Conflict Representation. Section
3(a)(iii) is hereby amended by inserting in the second line thereof
after the words “constitutional documents” and before the words “, any
order or judgment” the phrase “(including, but not limited to, the Pooling
and Servicing Agreement, as amended, and any and all resolutions,
investment policies, guidelines, procedures or restrictions)”;
provided, such amendment shall be applicable only with respect
to
the Representations of Party B.
|
|
(u)
|
Third-Party
Beneficiary. Party B agrees with Party A that Party A
shall be an express third-party beneficiary of the Pooling and
Servicing
Agreement and the Swap Contract Administration
Agreement.
|
|
(v)
|
Additional
representations.
|
|
|
(i)
|
Capacity. Party
A represents to Party B on the date on which Party A enters into
this
Agreement that it is entering into the Agreement and each Transaction
as
principal and not as agent of any person. Party B represents to
Party A on the date on which Party B enters into this Agreement
that it is
entering into the Agreement and each Transaction in its capacity
as Swap
Contract Administrator.
|
|
(w)
|
Acknowledgements.
|
|
|
(i)
|
Substantial
financial transactions. Each party hereto is hereby
advised and acknowledges as of the date hereof that the other party
has
engaged in (or refrained from engaging in) substantial financial
transactions and has taken (or refrained from taking) other material
actions in reliance upon the entry by the parties into the Transactions
being entered into on the terms and conditions set forth herein
and in the
Pooling and Servicing Agreement relating to such Transactions,
as
applicable. This paragraph shall be deemed repeated on the trade
date of
each Transaction.
|
|
|
(ii)
|
Bankruptcy
Code. Subject to Part 5(m), without limiting the
applicability, if any, of any other provision of the U.S. Bankruptcy
Code
as amended (the “Bankruptcy Code”) (including without limitation Sections
362, 546, 556 and 560 thereof and the applicable definitions in
Section
101 thereof), the parties acknowledge and agree that all Transactions
entered into hereunder will constitute “forward contracts” or “swap
agreements” as defined in Section 101 of the Bankruptcy Code or “commodity
contracts” as defined in Section 761 of the Bankruptcy Code, that the
rights of the parties under Section 6 of this Agreement will constitute
contractual rights to liquidate Transactions, that any margin or
collateral provided under any margin, collateral, security, pledge
or
similar agreement related hereto will constitute a “margin payment” as
defined in Section 101 of the Bankruptcy Code and that the parties
are
entities entitled to the rights under, and protections afforded
by,
Sections 362, 546, 556 and 560 of the Bankruptcy
Code.
|
|
(x)
|
Notices. For
the purposes of subsections (iii) and (v) of Section
12(a), the date of receipt shall be presumed to be the date sent
if
sent on a Local Business Day or, if not sent on a Local Business
Day, the
date of receipt shall be presumed to be the first Local Business
Day
following the date sent.
|
14
|
(y)
|
Service
of Process. The third sentence of Section 13(c)
shall be amended by adding the following language at the end
thereof: “if permitted in the jurisdiction where the
proceedings are initiated and in the jurisdiction where service
is to be
made.”
|
|
(z)
|
Additional
Definitions.
|
As
used
in this Agreement, the following terms shall have the meanings set forth
below,
unless the context clearly requires otherwise:
“Derivative
Provider Trigger Event” means (i) an Event of Default with respect
to which Party A is a Defaulting Party, (ii) a Termination Event (other than
an
Illegality or a Tax Event) with respect to which Party A is the sole Affected
Party or (iii) an Additional Termination Event with respect to which Party
A is
the sole Affected Party.
“Eligible
Guarantee” means an unconditional and irrevocable guarantee of all
present and future obligations of Party A or an Eligible Replacement to Party
A
under this Agreement that (a) is in a form identical to the attached hereto
as
Exhibit B, or (b) is provided by an Eligible Guarantor as principal debtor
rather than surety and that is directly enforceable by Party B, the form
and
substance of which guarantee is identical to the attached hereto as Exhibit
B
(except for the name, address and the jurisdiction of the guarantor) or that
otherwise satisfies the Rating Agency Condition with respect to S&P and
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
deduction or withholding for Tax and such opinion has been delivered to Moody’s,
(B) such guarantee provides that, in the event that any of such guarantor’s
payments to Party B are subject to deduction or 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 Tax
collected by withholding) will equal the full amount Party B would have received
had no such deduction or withholding been required or (C) in the event that
any
payment under such guarantee is made net of deduction or withholding for
Tax,
Party A is required, under Section 2(a)(i), to make such additional payment
as
is necessary to ensure that the net amount actually received by Party B from
the
guarantor will equal the full amount Party B would have received had no such
deduction or withholding been required.
“Eligible
Guarantor” means an entity that (A) has credit ratings from
S&P at least equal to the S&P Required Ratings Threshold and (B) has
credit ratings from Moody’s at least equal to the Moody’s Second Trigger Ratings
Threshold; provided, for the avoidance of doubt, that an Eligible Guarantee
of
an Eligible Guarantor with credit ratings below the S&P Approved Ratings
Threshold or the Moody’s First Trigger Ratings Threshold, as applicable, will
not cause a Collateral Event (as defined in the Credit Support Annex) to
cease
to occur or continue.
“Eligible
Replacement” means an entity that (A) (i) (a) has credit ratings
from S&P at least equal to the S&P Required Ratings Threshold and (b)
has credit ratings from Moody’s at least equal to the Moody’s Second Trigger
Ratings Threshold; provided, for the avoidance of doubt, that an Eligible
Replacement with credit ratings below the S&P Approved Ratings Threshold or
the Moody’s First Trigger Ratings Threshold, as applicable, will not cause a
Collateral Event (as defined in the Credit Support Annex) to cease to occur
or
continue or (ii) provides an Eligible Guarantee from an Eligible Guarantor
and
(B) that has executed an Item 1115 Agreement with the Depositor.
“Financial
Institution” means, with respect to any Relevant Entity, a bank,
broker/dealer or affiliate thereof, insurance company, structured investment
company or derivative product company or otherwise determined to be a Financial
Institution by S&P. For purposes of clarification, Party A and
its Credit Support Provider shall qualify as a Financial
Institution.
“Firm
Offer” means an offer which, when made, was capable of becoming
legally binding upon acceptance.
“Moody’s”
means Xxxxx’x Investors Service, Inc., or any successor thereto.
15
“Moody’s
First Trigger Ratings Threshold” means, with respect to any
Relevant Entity, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of “A2” and a
short-term unsecured and unsubordinated debt rating from Moody’s of “Prime-1” or
(ii) if such entity does not have a short-term unsecured and unsubordinated
debt
rating or counterparty rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of
“A1”.
“Moody’s
Second Trigger Ratings Event” means that neither Party A nor
any Eligible Guarantor of Party A under an Eligible Guarantee has credit
ratings from Moody’s at least equal to the Moody’s Second Trigger Ratings
Threshold.
“Moody’s
Second Trigger Ratings Threshold” means, with respect to any
Relevant Entity, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of “A3” and a
short-term unsecured and unsubordinated debt rating from Moody’s of “Prime-2” or
(ii) if such entity does not have a short-term unsecured and unsubordinated
debt
rating from Moody’s, a long-term unsecured and unsubordinated debt rating or
counterparty rating from Moody’s of “A3”.
“Permitted
Transfer” means a transfer by novation by Party A to a transferee
(the “Transferee”) of all, but not less than all, of Party A’s rights,
liabilities, duties and obligations under this Agreement, with respect to
which
transfer each of the following conditions is satisfied: (a) the
Transferee is an Eligible Replacement that is a recognized dealer in interest
rate swaps organized under the laws of the United States of America or a
jurisdiction located in the United States of America (or another jurisdiction
reasonably acceptable to Party B), (b) an Event of Default, Termination Event
or
Additional Termination Event would not occur as a result of such transfer,
(c)
pursuant to a written instrument (the “Transfer Agreement”), the Transferee
acquires and assumes all rights and obligations of Party A under the Agreement
and the relevant Transactions, (d) Party B shall have determined, in its
sole
discretion, acting in a commercially reasonable manner, that such Transfer
Agreement is effective to transfer to the Transferee all, but not less than
all,
of Party A’s rights and obligations under the Agreement and all relevant
Transactions; (e) Party A will be responsible for any costs or expenses incurred
in connection with such transfer (including any cost of entering into a Transfer
Agreement); (f) Moody’s has been given prior written notice of such transfer and
the Rating Agency Condition is satisfied with respect to S&P and (g) such
transfer otherwise complies with the terms of the Pooling and Servicing
Agreement.
“Rating
Agency Condition” means, with respect to any proposed act
hereunder and each Swap Rating Agency specified in connection with such proposed
act, a condition that is satisfied when the party proposing such act consults
with each of the specified Swap Rating Agencies and receives from each such
Swap
Rating Agency a prior written confirmation (including by facsimile transmission)
that the proposed action would not cause a downgrade or withdrawal of the
then-current rating of any Certificates.
“Regulation
AB Agreement” shall have the meaning assigned thereto in Part
5(e).
“Relevant
Entity” means Party A, a guarantor under an Eligible Guarantee or
an Eligible Replacement, as applicable.
“Replacement
Transaction” means, with respect to any Terminated Transaction or
group of Terminated Transactions, a transaction or group of transactions
that
(i) would have the effect of preserving for Party B 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 Transaction
or group of Terminated Transactions that would, but for the occurrence of
the
relevant Early Termination Date, have been required after that date and (ii)
has
terms which are substantially the same as this Agreement, including, without
limitation, rating triggers, Regulation AB compliance and credit support
documentation, save for the exclusion of provisions relating to Transactions
that are not Terminated Transactions, as determined by Party B in its sole
discretion, acting in a commercially reasonable manner.
16
“Required
Ratings Downgrade Event” shall have the meaning assigned thereto
in Part 5(d).
“S&P”
means Standard & Poor's Rating Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor thereto.
“S&P
Approved Ratings Threshold” means, only with respect to a Relevant
Entity that is a Financial Institution, a short-term unsecured and
unsubordinated debt rating from S&P of “A-1” or, if such entity does not
have a short-term unsecured and unsubordinated debt rating from S&P, a
long-term unsecured and unsubordinated debt rating from S&P of
“A+”.
“S&P
Required Ratings Event” means that neither Party A nor any
Eligible Guarantor of Party A under an Eligible Guarantee has credit
ratings from S&P at least equal to the S&P Required Ratings
Threshold.
“S&P
Required Ratings Threshold” means, (i) with respect to any
Relevant Entity that is a Financial Institution, a short-term unsecured and
unsubordinated debt rating from S&P of “A-2” or, if such entity does not
have a short-term unsecured and unsubordinated debt rating from S&P, a
long-term unsecured and unsubordinated debt rating from S&P of “BBB+” and
(ii) with respect to any Relevant Entity that is not a Financial
Institution, a short-term unsecured and unsubordinated debt rating from S&P
of “A-1” or, if such entity does not have a short-term unsecured and
unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating from S&P of “A+”.
“Swap
Rating Agencies” means, with respect to any date of determination,
each of S&P and Moody’s, to the extent that each such rating agency is then
providing a rating for any of the Certificates.
17
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.
|
XXXXXX
BROTHERS
SPECIAL
FINANCING INC.
|
THE
BANK OF NEW YORK, not in its
individual or corporate capacity but solely as Swap Contract Administrator for CWABS Asset-Backed Certificates Trust 2007-12 |
|
(“Party
A”)
|
(“Party
B”)
|
|
By:
|
/s/Xxxxxxx X. Xxxxxx | By: | /s/ Xxxxxxx Xxxxxxxx | |||
|
Name:
Xxxxxxx X.
Xxxxxx
|
Name: Xxxxxxx Xxxxxxxx | |||||
|
Title:
Authorize Signatory
|
Title: Assistant Treasurer | |||||
18
EXHIBIT
A
Regulation
AB Agreement
19
Item 1115 Agreement dated as of February 24, 2006 (this "Agreement"), between COUNTRYWIDE HOME LOANS, INC., a New York corporation ("CHL"), CWABS, INC., a Delaware corporation ("CWABS"), CWMBS, Inc., a Delaware corporation ("CWMBS"), CWALT, Inc., a Delaware corporation ("CWALT"), CWHEQ, Inc., a Delaware corporation ("CWHEQ") and XXXXXX BROTHERS SPECIAL FINANCING INC., as counterparty (the "Counterparty"). RECITALS WHEREAS, CWABS, CWMBS, CWALT and CWHEQ each have filed Registration Statements on Form S-3 (each, a "Registration Statement") with the Securities and Exchange Commission (the "Commission") for purposes of offering mortgage backed or asset-backed notes and/or certificates (the "Securities") through special purpose vehicles (each, an "SPV"). WHEREAS, from time to time, on the closing date (the "Closing Date") of a transaction pursuant to which Securities are offered (each, a "Transaction"), the Counterparty and CHL or an underwriter or dealer with respect to the Transaction, enter into certain derivative agreements (each, a "Derivative Agreement"), including interest rate caps and interest rate or currency swaps, for purposes of providing certain yield enhancements that are assigned to the SPV or the related trustee on behalf of the SPV or a swap or corridor contract administrator (each, an "Administrator"). NOW, THEREFORE, in consideration of the mutual agreements set forth herein and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereby agree as follows: Section 1. Definitions Company Information: As defined in Section 4(a)(i). Company Financial Information: As defined in Section 2(a)(ii). Depositor: Means CWABS, CWMBS, CWALT or CWHEQ with respect to the related Registration Statement for which the entity of the registrant. GAAP: As defined in Section 3(a)(v). XXXXX: The Commission's Electronic Data Gathering, Analysis and Retrieval system. Exchange Act: The Securities Exchange Act of 1934, as amended and the rules and regulations promulgated thereunder. Exchange Act Reports: All Distribution Reports on Form 10-D, Current Reports on Form 8-K and Annual Reports on Form 10-K that are to be filed with respect to the related SPV pursuant to the Exchange Act. A-1 Master Agreement: The ISDA Master Agreement between the Counterparty and CHL, or if no such Master Agreement exists, the ISDA Master Agreement assumed to apply to the Derivative Agreement pursuant to its terms. Prospectus Supplement: The prospectus supplement prepared in connection with the public offering and sale of the related Securities. Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission in the adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time. Securities Act: The Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. Section 2. Information to be Provided by the Counterparty. (a) Prior to printing the related Prospectus Supplement, (i) the Counterparty shall provide to the related Depositor such information regarding the Counterparty, as a derivative instrument counterparty, as is reasonably requested by the related Depositor for the purpose of compliance with Item 1115(a)(1) of Regulation AB. Such information shall include, at a minimum: (A) The Counterparty's legal name (and any d/b/a); (B) the organizational form of the Counterparty; (C) a description of the general character of the business of the Counterparty; (D) a description of any affiliation or relationship (as set forth in Item 1119) between the Counterparty and any of the following parties: (1) CHL (or any other sponsor identified to the Counterparty by CHL); (2) the related Depositor (as identified to the Counterparty by CHL); (3) the SPV; (4) Countrywide Home Loans Servicing LP (or any other servicer or master servicer identified to the Counterparty by CHL); A-2 (5) The Bank of New York (or any other trustee identified to the Counterparty by CHL); (6) any originator identified to the Counterparty by CHL; (7) any enhancement or support provider identified to the Counterparty by CHL; and (8) any other material transaction party identified to the Counterparty by CHL. (ii) if requested by the related Depositor prior to the related Depositor taking the steps necessary to suspend its obligation to file Exchange Act Reports, with respect to the SPV, under Sections 13 and 15(d) of the Exchange Act, in accordance with the requirements of Regulation AB, the Counterparty shall: (A) provide the financial data required by Item 1115(b)(1) or (b)(2) of Regulation AB (as specified by the related Depositor to the Counterparty) with respect to the Counterparty (or any entity that consolidates the Counterparty) and any affiliated entities providing derivative instruments to the SPV (the "Company Financial Information"), in a form appropriate for use in the Prospectus Supplement and in an XXXXX-compatible form (if not incorporated by reference) and hereby authorizes the related Depositor to incorporate by reference the financial data required by Item 1115(b)(2) of Regulation AB; and (B) if applicable, cause its accountants to issue their consent to the filing or the incorporation by reference of such financial statements in the Registration Statement. (b) Following the Closing Date and until the related Depositor takes the steps necessary to suspend its obligation to file Exchange Act Reports, with respect to the SPV, under Sections 13 and 15(d) of the Exchange Act, with respect to a Transaction, (i) no later than the 25th calendar day of each month, the Counterparty shall (1) notify the related Depositor in writing of any affiliations or relationships that develop following the Closing Date between the Counterparty and any of the parties specified in Section 2(a)(i)(D) (and any other parties identified in writing by the related Depositor) and (2) provide to the related Depositor a description of such proceedings, affiliations or relationships as described in Section 2(b)(i)(1); (ii) if the Counterparty provided Company Financial Information to the related Depositor for the Prospectus Supplement, within 5 Business Days of the release of any updated financial data, the Counterparty shall (1) A-3 provide current Company Financial Information as required under Item 1115(b) of Regulation AB to the related Depositor in an XXXXX-compatible form (if not incorporated by reference) and hereby authorizes the related Depositor to incorporate by reference the financial data required by Item 1115(b)(2) of Regulation AB, and (2) if applicable, cause its accountants to issue their consent to filing or incorporation by reference of such financial statements in the Exchange Act Reports of the SPV; and (iii) if the related Depositor requests Company Financial Information from the Counterparty, for the purpose of compliance with Item 1115(b) of Regulation AB following the Closing Date, the Counterparty shall upon five Business Days written notice either (A), (1) provide current Company Financial Information as required under Item 1115(b) of Regulation AB to the related Depositor in an XXXXX-compatible form (if not incorporated by reference) and hereby authorizes the related Depositor to incorporate by reference the financial data required by Item 1115(b)(2) of Regulation AB, (2) if applicable, cause its accountants to issue their consent to filing or incorporation by reference of such financial statements in the Exchange Act Reports of the SPV and (3) within 5 Business Days of the release of any updated financial data, provide current Company Financial Information as required under Item 1115(b) of Regulation AB to the related Depositor in an XXXXX-compatible form and if applicable, cause its accountants to issue their consent to filing or incorporation by reference of such financial statements in the Exchange Act Reports of the SPV or (B) assign the Derivative Agreement as provided below. Section 3. Representations and Warranties and Covenants of the Counterparty. (a) The Counterparty represents and warrants to the related Depositor, as of the date on which information is first provided to the related Depositor under Section 2(a)(ii), Section 2(b)(ii) or Section 2(b)(iii)(A), that, except as disclosed in writing the related Depositor prior to such date: (i) The Counterparty or the entity that consolidates the Counterparty is required to file reports with the Commission pursuant to section 13(a) or 15(d) of the Exchange Act. (ii) The Counterparty or the entity that consolidates the Counterparty has filed all reports and other materials required to be filed by such requirements during the preceding 12 months (or such shorter period that such party was required to file such reports and materials). (iii) The reports filed by the Counterparty, or entity that consolidates the Counterparty, include (or properly incorporate by reference) the financial statements of the Counterparty. A-4 (iv) The accountants who certify the financial statements and supporting schedules included in the Company Financial Information (if applicable) are independent registered public accountants as required by the Securities Act. (v) If applicable, the financial statements included in the Company Financial Information present fairly the consolidated financial position of the Counterparty (or the entity that consolidates the Counterparty) and its consolidated subsidiaries as at the dates indicated and the consolidated results of their operations and cash flows for the periods specified; except as otherwise stated in the Company Financial Information, said financial statements have been prepared in conformity with generally accepted accounting principles ("GAAP") applied on a consistent basis; and the supporting schedules included in the Company Financial Information present fairly in accordance with GAAP the information required to be stated therein. The selected financial data and summary financial information included in the Company Financial Information present fairly the information shown therein and have been compiled on a basis consistent with that of the audited financial statements of the Counterparty. (vi) The Company Financial Information and other Company Information included or incorporated by reference in the Registration Statement (including through filing on an Exchange Act Report), at the time they were or hereafter are filed with the Commission, complied in all material respects with the requirements of Item 1115(b) of Regulation AB (in the case of the Company Financial Information) and, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (b) If the Counterparty has provided Company Financial Information that is incorporated by reference into the Registration Statement of the related Depositor, the Counterparty, so long as the related Depositor is required to file Exchange Act Reports with respect to the SPV, will file promptly all documents required to be filed with the Commission pursuant to Section 13 or 14 of the Exchange Act. If permitted by the Exchange Act, the related Depositor will take the steps necessary to suspend its obligation to file Exchange Act Reports, with respect to the SPV, under Sections 13 and 15(d) of the Exchange Act. (c) If at any time, the Counterparty ceases to meet the requirements of Item 1101(c)(1) of Regulation AB with respect to the incorporation by reference of the financial information of third parties, the Counterparty shall provide notice to the related Depositor, and if any Company Financial Information is required to be included in the Registration Statement, or the Exchange Act Reports of the SPV, will provide to the related Depositor such Company Financial Information in A-5 XXXXX-compatible format no later than the 25th calendar day of the month following the date on which the Counterparty ceased to meet the requirements. (d) The Counterparty agrees that the terms of this Agreement shall be incorporated by reference into any Derivative Agreement so that each SPV who is a beneficiary of a Derivative Agreement shall be an express third party beneficiary of this Agreement. Section 4. Indemnification; Remedies (a) The Counterparty shall indemnify CHL and the related Depositor, each person responsible for execution of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act; each broker dealer acting as underwriter, each person who controls any of such parties (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act); and the respective present and former directors, officers, employees and agents of each of the foregoing, and shall hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments, and any other costs, fees and expenses that any of them may sustain arising out of or based upon: (i) (A) any untrue statement of a material fact contained or alleged to be contained in any information, report, accountants' consent or other material provided in written or electronic form under Section 2 by or on behalf of the Counterparty (collectively, the "Company Information"), or (B) the omission or alleged omission to state in the Company Information a material fact required to be stated in the Company Information or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) any breach by the Counterparty of a representation or warranty set forth in Section 3(a) and made as of a date prior to the Closing Date, to the extent that such breach is not cured by the Closing Date, or any breach by the Counterparty of a representation or warranty pursuant to Section 3 to the extent made as of a date subsequent to the Closing Date. (b) (i) Any failure by the Counterparty to deliver any information, report, accountants' consent or other material when and in any case only as required under Section 2 or any breach by the Counterparty of a representation or warranty set forth in Section 3 and made as of a date prior to the Closing Date, to the extent that such breach is not cured by the Closing Date (or in the case of information needed for purposes of printing the Prospectus Supplement, the date of printing of the Prospectus Supplement), shall, except as provided in clause (ii) of this paragraph, immediately and automatically, without notice or grace period, constitute an Additional Termination Event (as defined in the Master Agreement) with the Counterparty as the sole Affected Party (as defined in the Master A-6 Agreement) under the Derivative Agreement. Following such termination, a termination payment (if any) shall be payable by the applicable party as determined by the application of Section 6(e)(ii) of the Master Agreement, with Market Quotation and Second Method being the applicable method for determining the termination payment (notwithstanding anything in the Derivative Agreement to the contrary). (ii) If the Counterparty has failed to deliver any information, report, certification or accountants' consent when and as required under Section 2, which continues unremedied for the lesser of ten calendar days after the date on which such information, report, certification or accountants' consent was required to be delivered or such period in which the applicable Exchange Act Report for which such information is required can be timely filed (without taking into account any extensions permitted to be filed), or if the Counterparty has provided Company Information, any breach by the Counterparty of a representation or warranty pursuant to Section 3 to the extent made as of a date subsequent to such closing date, and the Counterparty has not, at its own cost, within the period in which the applicable Exchange Act Report for which such information is required can be timely filed caused another entity (which meets any applicable ratings threshold in the Derivative Agreement) to replace the Counterparty as party to the Derivative Agreement that (i) has signed an agreement with CHL and the Depositors substantially in the form of this Agreement, (ii) has agreed to deliver any information, report, certification or accountants' consent when and as required under Section 2 hereof and (iii) is approved by the Depositor (which approval shall not be unreasonably withheld) and any rating agency, if applicable, on terms substantially similar to the Derivative Agreement, then an Additional Termination Event (as defined in the Master Agreement) shall have occurred with the Counterparty as the sole Affected Party. Following such termination, a termination payment (if any) shall be payable by the applicable party as determined by the application of Section 6(e)(ii) of the Master Agreement, with Market Quotation and Second Method being the applicable method for determining the termination payment (notwithstanding anything in the Derivative Agreement to the contrary). (iii) In the event that the Counterparty or the SPV has found a replacement entity in accordance with Section 2(b)(ii), the Counterparty shall promptly reimburse the SPV for all reasonable incidental expenses incurred by the SPV, as such are incurred, in connection with the termination of the Counterparty as counterparty and the entry into a new Derivative Agreement. The provisions of this paragraph shall not limit whatever rights the SPV may have under other provisions of this Agreement or otherwise, whether in equity or at law, such as an action for damages, specific performance or injunctive relief. A-7 Section 5. Miscellaneous. (a) Construction. Throughout this Agreement, as the context requires, (a) the singular tense and number includes the plural, and the plural tense and number includes the singular; (b) the past tense includes the present, and the present tense includes the past; and (c) references to parties, sections, schedules, and exhibits mean the parties, sections, schedules, and exhibits of and to this Agreement. The section headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend, or interpret the scope of this Agreement or of any particular section. (b) Assignment. None of the parties may assign their rights under this Agreement without the prior written consent of the other parties. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the parties and their respective successors and permitted assigns. (c) No Third-Party Benefits Except as Specified. None of the provisions of this Agreement are intended to benefit, or to be enforceable by, any third-party beneficiaries except the related SPV and any trustee of an SPV or any Administrator. (d) Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without regard to the conflict of laws principles thereof. (e) Amendment and Waiver. This Agreement may not be modified or amended except by an instrument in writing signed by the parties hereto. No waiver of any provision of this Agreement or of any rights or obligations of any party under this Agreement shall be effective unless in writing and signed by the party or parties waiving compliance, and shall be effective only in the specific instance and for the specific purpose stated in that writing. (f) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. (g) Additional Documents. Each party hereto agrees to execute any and all further documents and writings and to perform such other actions which may be or become reasonably necessary or expedient to effectuate and carry out this Agreement. (h) Severability. Any provision hereof which is prohibited or unenforceable shall be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof. (i) Integration. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof. There are no restrictions, agreements, promises, representations, warranties, covenants or undertakings with respect to A-8 the subject matter hereof other than those expressly set forth or referred to herein. This Agreement supersedes all prior agreements and understandings between the parties with respect to its subject matter. A-9 IN WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto by their respective officers thereunto duly authorized as of the day and year first above written. CWABS, INC. By: /s/ Xxxxxx Xxxxx --------------------------------- Name: Xxxxxx Xxxxx Title: Vice President CWMBS, INC. By: /s/ Xxxxxx Xxxxx --------------------------------- Name: Xxxxxx Xxxxx Title: Vice President CWALT, INC. By: /s/ Xxxxxx Xxxxx --------------------------------- Name: Xxxxxx Xxxxx Title: Vice President CWHEQ, INC. By: /s/ Xxxxxx Xxxxx --------------------------------- Name: Xxxxxx Xxxxx Title: Vice President COUNTRYWIDE HOME LOANS, INC. By: /s/ Xxxxxx Xxxxx --------------------------------- Name: Xxxxxx Xxxxx Title: Senior Vice President A-10 XXXXXX BROTHERS SPECIAL FINANCING INC. By: /s/ Xxxxxxxxxx X. Xxxxxx ---------------------------------- Name: Xxxxxxxxxx X. Xxxxxx Title: Vice President A-11
EXHIBIT
B to Schedule
GUARANTEE
OF XXXXXX BROTHERS HOLDINGS INC.
XXXXXX
BROTHERS SPECIAL FINANCING INC. (“Party A”) and THE BANK OF NEW YORK, not in its
individual or corporate capacity but solely as Swap Contract Administrator
for
CWABS Asset-Backed Certificates Trust
2007-12 (“Party B”) have entered into a Master
Agreement dated as of August 13, 2007, as amended from time to time (the
“Master
Agreement”), pursuant to which Party A and Party B have entered and/or
anticipate entering into one or more transactions (each a “Transaction”), the
Confirmation of each of which supplements, forms part of, and will be read
and
construed as one with, the Master Agreement (collectively referred to as
the
“Agreement”). This Guarantee is a Credit Support Document as contemplated in the
Agreement. For value received, and in consideration of the financial
accommodation accorded to Party A by Party B under the Agreement, XXXXXX
BROTHERS HOLDINGS INC., a corporation organized and existing under the
laws of
the State of Delaware (“Guarantor”), hereby agrees to the
following:
(a) Guarantor
hereby unconditionally guarantees to Party B the due and punctual payment
of all
amounts payable by Party A in connection with each Transaction when and
as Party
A’s obligations thereunder shall become due and payable in accordance with
the
terms of the Agreement (whether at maturity, by acceleration or otherwise).
Guarantor hereby agrees, upon written demand by Party B, to pay or cause
to be
paid any such amounts punctually when and as the same shall become due
and
payable.
(b) Guarantor
hereby agrees that its obligations under this Guarantee constitute a guarantee
of payment when due and not of collection.
(c) Guarantor
hereby agrees that its obligations under this Guarantee shall be unconditional,
irrespective of the validity, regularity or enforceability of any obligation
of
Party A under the Agreement , the absence of any action to enforce Party
A’s
obligations under the Agreement, any waiver or consent by Party B with
respect
to any provisions thereof, the entry by Party A and Party B into any amendments
to the Agreement, additional Transactions under the Agreement or any other
circumstance which might otherwise constitute a legal or equitable discharge
or
defense of a guarantor (excluding the defense of payment or statute of
limitations, neither of which is waived) provided, however, that Guarantor
shall
be entitled to exercise any right that Party A could have exercised under
the
Agreement to cure any default in respect of its obligations under the Agreement
or to setoff, counterclaim or withhold payment with respect to any Event
of
Default or Potential Event of Default, but only to the extent such right
is
provided to Party A under the Agreement. The Guarantor acknowledges that
Party A
and Party B may from time to time enter into one or more Transactions pursuant
to the Agreement and agrees that the obligations of the Guarantor under
this
Guarantee will upon the execution of any such Transaction by Party A and
Party B
extend to all such Transactions without the taking of further action by
the
Guarantor.
(d) This
Guarantee shall remain in full force and effect until receipt by Party
B of a
written notice of termination from Guarantor. Termination of this Guarantee
shall not affect Guarantor’s liability hereunder as to obligations incurred or
arising out of Transactions entered into prior to the termination
hereof.
(e) Guarantor
further agrees that this Guarantee shall continue to be effective or be
reinstated, as the case may be, if at any time, payment, or any part thereof,
of
any obligation or interest thereon is rescinded or must otherwise be restored
by
Party B upon an Event of Default as set forth in Section 5(a)(vii) of the
Master Agreement affecting Party A or Guarantor.
(f) Guarantor
hereby waives (i) promptness, diligence, presentment, demand of payment,
protest, order and, except as set forth in paragraph (a) hereof, notice
of any
kind in connection with the Agreement and this Guarantee, or (ii) any
requirement that Party B exhaust any right to take any action against Party
A or
any other person prior to or contemporaneously with proceeding to exercise
any
right against Guarantor under this Guarantee.
(g) Guarantor
shall have no right of subrogation with respect to any payments made under
this
Guarantee until all obligations of the Guaranteed Party under the Agreement
are
paid in full.
22
(h) Guarantor
represents and warrants (which representations and warranties shall be
deemed to
have been made by Guarantor on the date of each Transaction) that:
i. Guarantor
is a corporation duly incorporated, validly existing and in good standing
under
the laws of Delaware;
ii. Guarantor
has the legal capacity and the legal right to execute and deliver this
Guarantee
and to perform Guarantor’s obligations hereunder;
iii. no
consent or authorization of, filing with, or other act by or in respect
of, any
governmental authority and no consent of any other person (including, without
limitation, any creditor of Guarantor) is required in connection with the
execution, delivery, performance, validity or enforceability of this
Guarantee;
iv. this
Guarantee has been duly executed and delivered by Guarantor and constitutes
a
legal, valid and binding obligation of Guarantor enforceable in accordance
with
its terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws; and
v. the
execution, delivery and performance of this Guarantee will not violate
any
provision of the certificate of incorporation, by laws or other organizational
documents of Guarantor, or any law, treaty, rule or regulation or determination
of an arbitrator, a court or other governmental authority, applicable to
or
binding upon Guarantor or any of its property or to which Guarantor or
any of
its property is subject.
(i) Any
provision of this Guarantee 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.
(j) No
single or partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege, and no waiver by Party B of any right or remedy
hereunder on any one occasion shall be construed as a bar to any right
or remedy
which Party B would otherwise have on any future occasion. No failure to
exercise, nor any delay in exercising, any right, power or privilege hereunder
shall operate as a waiver thereof. The rights and remedies herein provided
are
cumulative, may be exercised singly or concurrently and are not exclusive
of any
other rights or remedies provided by law.
(k) If
any term, provision, covenant, or condition of this Guarantee, 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 Guarantee had been executed with the illegal, invalid
or
unenforceable portion eliminated, so long as this Guarantee as so modified
continues to express, without material change, the original intentions
of the
parties as to the subject matter of this Guarantee and the deletion of
such
portion of this Guarantee will not substantially impair the respective
benefits
or expectations of the parties to this Guarantee.
This
Guarantee shall be governed by and construed in accordance with the laws
of the
State of New York without regard to conflicts of laws principles. All
capitalized terms not defined in this Guarantee, but defined in the Agreement,
shall have the meanings assigned thereto in the Agreement.
IN
WITNESS WHEREOF, Guarantor has caused this Guarantee to be executed by
its duly
authorized officer as of the date of the Agreement.
23
|
|
XXXXXX BROTHERS HOLDINGS INC. | ||
|
|
By:
|
||
| Name: | |||
| Title: | |||
| Date: | |||
24
