EXHIBIT 99.4
The Schedule to the ISDA Master Agreement
(Multicurrency-Cross Border)
SCHEDULE
to the
Master Agreement
dated as of April 28,2006
between
XXXXXX BROTHERS SPECIAL FINANCING INC. ("Party A"),
a corporation organized under the laws of
the State of Delaware
and
THE BANK OF NEW YORK, not in its individual or corporate capacity but solely
as Swap Contract Administrator for CWALT, Inc. Alternative Loan Trust
2006-OC3, pursuant to a Swap Contract Administration Agreement (`Party B")
All terms used herein and not otherwise defined are given their
meaning in the Pooling and Servicing Agreement dated as of April 1, 2006
among CWALT, Inc. as depositor, Park Granada LLC, as a Seller, 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") and in
the Swap Contract Administration Agreement dated as of April 28, 2006, among
the Bank of New York, as Swap Contract Administrator (in such capacity, the
"Swap Contract Administrator") and as Trustee under the Pooling and Servicing
Agreement referred to below (in such capacity, the "Trustee"), and
Countrywide Home Loans, Inc.(the "Swap Contract Administration Agreement").
Part 1: Termination Provisions
In this Agreement:-
(a) "Specified Entity" means in relation to Party A for the purpose of:-
Section 5(a)(v), Not applicable.
Section 5(a)(vi), Not applicable.
Section 5(a)(vii), Not applicable.
Section 5(b)(iv), Not applicable.
and in relation to Party B for the purpose of:-
Section 5(a)(v), Not applicable.
Section 5(a)(vi), Not applicable.
Section 5(a)(vii), Not applicable.
Section 5(b)(iv), Not applicable.
(b) "Specified Transaction" will have the meaning specified in Section 14 of
this Agreement.
(c) Events of Default.
(i) The "Breach of Agreement" provisions of Section 5(a)(ii) will not
apply to Party A and will not apply to Party B.
(ii) The "Credit Support Default" provisions of Section 5(a)(iii) will
apply to Party A and will not apply to Party B.
(iii) The "Misrepresentation" provisions of Section 5(a)(iv) will not
apply to Party A and will not apply to Party B.
(iv) The "Default under Specified Transaction" provisions of Section
5(a)(v) will not apply to Party A and will not apply to Party B.
(v) "Cross Default" provisions of Section 5(a)(vi) will not apply to
Party A and will not apply to Party B.
(vi) Clause (2) of the "Bankruptcy" provisions of Section 5(a)(vii) will
not apply to Party B with respect to its inability to pay its
subordinated debt.
(d) Termination Events.
(i) 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, Market Quotation and the Second Method will apply.
(g) "Termination Currency" means USD.
(h) Additional Termination Events will apply. Each of the following shall
constitute an Additional Termination Event:
(A) Approved Ratings Threshold. Upon the occurrence of a
Collateralization Event (as defined below) Party A has not, within 30
days after such ratings downgrade (unless, within 30 days after such
downgrade, each such Swap Rating Agency has reconfirmed the rating of
the Swap Certificates which was in effect immediately prior to such
downgrade without regard to any financial guarantee insurance policy, if
applicable, unless the rating of the Swap Certificates were changed due
to a circumstance other than the downgrading of Party A's (or its Credit
Support Provider's rating), complied with one of the four solutions
listed below, 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.
In the event that (A) either (i) the unsecured, long-term senior debt
obligations of Party A (or its Credit Support Provider) are rated below
"A1" by Xxxxx'x or are rated "A1" by Xxxxx'x and such rating is on watch
for possible downgrade (but only for so long as it is on watch for
possible downgrade) or (ii) the unsecured, short-term debt obligations
of Party A (or its Credit Support Provider) are rated below "P-1" by
Xxxxx'x or are rated "P-1" by Xxxxx'x and such rating is on watch for
possible downgrade (but only for so long as it is on watch for possible
downgrade), (B) no short-term rating is available from Xxxxx'x and the
unsecured, long-term senior debt obligations of Party A (or its Credit
Support Provider) are rated below "Aa3" by Xxxxx'x or are rated "Aa3" by
Xxxxx'x and such rating is on watch for possible downgrade (but only for
so long as it is on watch for possible downgrade), or (C) either (i) the
unsecured, short-term debt obligations of Party A (or its Credit Support
Provider) are rated below "A-1" by S&P or (ii) if Party A (or its Credit
Support Provider) does not have a short-term rating from S&P, the
unsecured, long-term senior debt obligations of Party A (or its Credit
Support Provider) are rated below "A+" by S&P (such event a
"Collateralization Event"), then, Party A, at its own cost and subject
to Rating Agency Condition (other than with respect to sub-clause (iii)
below), shall within 30 days either (i) cause another entity to replace
Party A as party to this Agreement that satisfies the Swap Counterparty
Ratings Requirement and that is approved by the Trustee (which approval
shall not be unreasonably withheld) on terms substantially similar to
this Agreement; (ii) obtain a guaranty of, or a contingent agreement of
another person that satisfies the Swap Counterparty Ratings
Requirement), to honor Party A's obligations under this Agreement,
provided that such other person is approved by the Trustee such approval
not to be unreasonably withheld; (iii) post collateral in accordance
with the Credit Support Annex attached hereto; or (iv) establish any
other arrangement satisfactory to the applicable Swap Rating Agency
which will be sufficient to restore the immediately prior ratings of the
Swap Certificates without regard to any financial guarantee policy, if
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applicable, that satisfies the Swap Counterparty Ratings Requirements.
If Party A posts collateral in any circumstance described in this
paragraph, and if required at the time by S&P or necessary to satisfy
the Rating Agency Condition, concurrently with such delivery of Eligible
Collateral, Party A shall cause its outside counsel to deliver to Party
B an opinion in form and substance acceptable to S&P, as to the
enforceability, perfection and priority of Party B's security interest
in such Eligible Collateral in all relevant jurisdictions (i.e., that,
notwithstanding Party A's insolvency, the collateral will be available
to meet swap obligations free from any preference claim or moratorium).
All collateral posted by Party A shall be returned to Party A
immediately upon Party A securing a substitute counterparty that
satisfies the Swap Counterparty Ratings Requirements.
"Swap Counterparty Ratings Requirement" shall mean (a) either (i) the
unsecured, short-term debt obligations of the substitute counterparty
(or its Credit Support Provider) are rated at least "A-1" by S&P or (ii)
if the substitute counterparty does not have a short-term rating from
S&P, the unsecured, long-term senior debt obligations of the substitute
counterparty (or its Credit Support Provider) are rated at least "A+" by
S&P, and (b) either (i) the unsecured, long-term senior debt obligations
of such substitute counterparty (or its Credit Support Provider) are
rated at least "A1" by Xxxxx'x (and if rated "A1" by Xxxxx'x, such
rating is not on watch for possible downgrade) and the unsecured,
short-term debt obligations of such substitute counterparty (or its
Credit Support Provider) are rated at least "P-1" by Xxxxx'x (and if
rated "P-1" by Xxxxx'x, such rating is not on watch for possible
downgrade and remaining on watch for possible downgrade), or (ii) if
such substitute counterparty (or its Credit Support Provider) does not
have a short-term debt rating from Xxxxx'x, the unsecured, long-term
senior debt obligations of such substitute counterparty (or its Credit
Support Provider) are rated at least "Aa3" by Xxxxx'x (and if rated
"Aa3" by Xxxxx'x, such rating is not on watch for possible downgrade).
(B) Ratings Event. Upon the occurrence of a Ratings Event (as defined
below) Party A has not, within 10 days after such rating withdrawal or
downgrade (unless, within 10 days after such withdrawal or downgrade,
each such Swap Rating Agency has reconfirmed the rating of the Swap
Certificates which was in effect immediately prior to such withdrawal or
downgrade without regards to any financial guarantee insurance policy,
if applicable unless the rating of the Swap Certificates were changed
due to a circumstance other than the withdrawal or downgrading of Party
A's (or its Credit Support Provider's) rating), complied with one of the
solutions listed below, 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.
It shall be a ratings event ("Ratings Event") if at any time after the
date hereof Party A shall fail to satisfy the Swap Counterparty Ratings
Threshold. Swap Counterparty Ratings Threshold shall mean that both (A)
the unsecured, long-term senior debt obligations of Party A (or its
Credit Support Provider) are rated at least "BBB-" by S&P, and (B)
either (i) the unsecured, long-term senior debt obligations of Party A
(or its Credit Support Provider) are rated at least "A2" by Xxxxx'x
(including if such rating is on watch for possible downgrade) and the
unsecured, short-term debt obligations of Party A (or its Credit Support
Provider) are rated at least "P-1" by Xxxxx'x (including if such rating
is on watch for possible downgrade) or (ii) if Party A (or its Credit
Support Provider) does not have a short-term rating from Xxxxx'x, the
unsecured, long-term senior debt obligations of Party A (or its Credit
Support Provider) are rated at least "A1" by Xxxxx'x (including if such
rating is on watch for possible downgrade).
Following a Ratings Event, Party A shall take the following actions at
its own expense and subject to the Rating Agency Condition (other than
with respect to sub-clause (A) hereafter), (A) immediately post
collateral in accordance with the Credit Support Annex attached hereto
(until such time as it has secured a substitute counterparty or a
guarantor that satisfies the Swap Counterparty Ratings Requirement, and
(B) not later than 10 days after the occurrence of such a downgrade or
withdrawal by S&P or Xxxxx'x, either (I) assign all of its rights and
obligations under the Transactions to a counterparty that satisfies the
Swap Counterparty Ratings Requirement or whose guarantor satisfies the
Swap Counterparty Ratings Requirement pursuant to documentation
substantially similar to the documentation then in place and subject to
prior notification to the Swap Rating Agencies, or (II) provide a
guaranty from a guarantor that satisfies the Swap Counterparty Ratings
Requirement pursuant to documentation substantially similar to the
documentation then in place and subject to prior notification to the
Swap Rating Agencies.
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The occurrence of the Additional Termination Event described in Part
1(h)(A) and (B) shall have no effect on Party A's obligation to
undertake the steps set forth hereunder in the event Party B does not
exercise its right to terminate hereunder. Notwithstanding the
foregoing, in the event that S&P has other published criteria with
respect to the downgrade of a counterparty in effect at the time of such
a downgrade of Party A, Party A shall be entitled to elect to take such
other measures specified in such published criteria subject to the
satisfaction of the Rating Agency Condition.
(C) Supplemental Pooling and Servicing Agreement without Party A's Prior
Written Consent. 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 without the prior written consent of
Party A (such consent not to be unreasonably withheld). For the purpose
of the foregoing Additional Termination Event, Party B shall be the sole
Affected Party.
(D) Return of Collateral. Party B or its Custodian fails to transfer any
Return Amount pursuant to the terms of the Credit Support Annex
following any applicable notice, cure and grace periods provided for
thereunder. For the purpose of the foregoing Additional Termination
Event, Party B shall be the sole Affected Party.
Part 2: Tax Representations
(a) Payer Tax Representations. For the purpose of Section 3(e) of this
Agreement, Party A and Party B will each make the following
representation:
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 Sections 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 (i) the accuracy of any representation made by the other
party pursuant to Section 3(f) of this Agreement, (ii) the
satisfaction(s) of the agreement of the other party 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 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) of this Agreement by reason of material prejudice to its
legal or commercial position.
(b) Payee Tax Representations.
For the purpose of Section 3(f) of this Agreement, Party A represents
that it is a corporation duly organized and validly existing under
the laws of the State of Delaware and Party B represents that it is a
"United States person" as such term is defined in Section 7701(a)(30)
of the Internal Revenue Code of 1986, as amended.
(c) Tax Representations in Confirmations. For purposes of Sections
2(d)(i)(4) and 3(f), any payee tax representation specified in a
Confirmation under this Agreement shall be deemed to be specified in
this Schedule.
(d) Deduction or Withholding for Tax. The provisions of Section
2(d)(i)(4) and 2(d)(ii) will not apply to Party B and Party B shall
not be required to pay any additional amounts referred to therein.
Part 3: Agreement to Deliver Documents
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For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver the following documents, as applicable:-
(a) Tax forms, documents or certificates to be delivered are:-
Party required Form/Document/ Date by which
to deliver Certificate to be Delivered
document ----------- ---------------
--------
Party A and Forms and/or documents Upon reasonable demand by
Party B described in Section the other party.
4(a)(iii) of the
Agreement.
(b) Other documents to be delivered are:-
Party Form/Document/ Date by which Covered by
required Certificate to be Delivered Section 3(d)
to deliver ----------- --------------- ------------
document
--------
Party A and For each party, an Upon execution Yes
Party B incumbency certificate of this
with respect to each Agreement.
signatory to this
Agreement and the Credit
Support Documents.
Party A A copy of the annual Upon request. Yes
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.
Party A For its most recent Upon request. Yes
fiscal quarter, a copy
of the unaudited
financial statements of
its Credit Support
Provider, prepared in
accordance with
generally accepted
accounting principles
consistently applied.
Party A and Any documents required Upon execution Yes
Party B or reasonably requested of this
by the receiving party Agreement.
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 to its
Credit Support Provider
to perform its
obligations under this
Agreement, such
Confirmation and/or
Credit Support Document,
as the case may be.
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Party Form/Document/ Date by which Covered by
required Certificate to be Delivered Section 3(d)
to deliver ----------- --------------- ------------
document
--------
Party A A guarantee of Xxxxxx Upon execution No
Brothers Holdings Inc. of this
("Holdings") Agreement.
substantially in the
form of Exhibit A to
this Schedule.
Party B Opinions of counsel to Upon execution No
Party B substantially in of this
the form of Exhibit B to Agreement.
this Schedule.
Party A An opinion of counsel to Upon execution No
Party A and Party A's of this
Credit Support Provider Agreement.
substantially in the
form of Exhibit C to
this Schedule.
Party B Monthly Report At such time as Yes
each Monthly
Report is
delivered to
the Trustee.
Party B Copy of any notice Upon Yes
delivered under the availability.
Pooling and Servicing
Agreement that impacts
this Agreement.
Party B Executed copy of the Upon execution Yes
Credit Support Document of this
specified in Part 4 to Agreement.
this Schedule.
Party B Executed copy of the Upon execution Yes
Swap Contract of this
Administration Agreement. Agreement.
Part 4: Miscellaneous
(a) Addresses for Notices. For the purpose of Section 12(a) of this
Agreement:-
Address for notices or communications to Party A:-
Address: Xxxxxx Brothers Special Financing Inc.
c/x Xxxxxx Brothers Inc.
Corporate Advisory Division
Transaction Management 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.
Address for notices or communications to Party B:-
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Address: The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration MBS Administration,
CWALT, Series 2006-OC3
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
For all purposes.
(b) Process Agent. For the purpose 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,
that if an Event of Default has occurred and is continuing with respect
to Party A, then the parties will mutually appoint a financial
institution acceptable to both parties which would qualify as a
Reference Market-maker to act as Calculation Agent until the earlier of
(i) a designation under Section 6(c)(ii), or (ii) the discontinuance of
such Event of Default with respect to Party A.
(f) Credit Support Document. Details of any Credit Support Document, each of
which is incorporated by reference in, constitutes part of, and is in
connection with, this Agreement and each Confirmation as if set forth in
full in this Agreement or such Confirmation:-
In the case of Party A: (1) A guarantee of Party A's obligations
hereunder substantially in the form annexed hereto as Exhibit A to this
Schedule. (2) The Credit Support Annex which supplements, forms part of,
and is subject to this Agreement.
In the case of Party B: From and including the date of its exclusion,
the Pooling and Servicing Agreement.
(g) Credit Support Provider.
Credit Support Provider means in relation to Party A: Xxxxxx Brothers
Holdings Inc.
Credit Support Provider means in relation to Party B: None.
(h) Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York (without reference to
choice of law doctrine other than Sections 5-1401 and 5-1402 of the New
York General Obligations Law).
(i) Jurisdiction. Section 13(b) is hereby amended by: (i) deleting in the
second line of subparagraph (i) thereof the word "non-"; and (ii)
deleting the final paragraph thereof.
(j) Netting of Payments. Subparagraph (ii) of Section 2(c) of this Agreement
will apply.
(k) "Affiliate" will have the meaning specified in Section 14 of this
Agreement, except that Party B shall be deemed to have no Affiliates;
and provided, however, that with respect to Party A, such definition
shall be
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understood to exclude Xxxxxx Brothers Derivative Products Inc. and
Xxxxxx Brothers Financial Products Inc.
Part 5: Other Provisions
(a) 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."
(b) 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.
(c) Representations. Section 3 is hereby amended by adding the following
subsections after subsection (f) thereof:
(g) No Agency. It is entering into this Agreement, any Credit Support
Document to which it is a party, and each Transaction, and any
other documentation relating to this Agreement or any Transaction,
as principal (and not as agent or in any other capacity, fiduciary
or otherwise).
(h) Eligible Contract Participant. It is an "eligible contract
participant" within the meaning of Section 1a(12) of the Commodity
Exchange Act, as amended.
(i) Non-Reliance. It is acting for its own account, and it has made
its own independent decisions to enter into each Transaction and
as to whether that Transaction is appropriate or proper for it
based upon its own judgment and upon advice from such advisers as
it has deemed necessary. It is not relying on any communication
(written or oral) of the other party as investment advice or as a
recommendation to enter into that Transaction; it being understood
that information and explanations related to the terms and
conditions of a Transaction shall not be considered investment
advice or a recommendation to enter into that Transaction. No
communication (written or oral) received from the other party
shall be deemed to be an assurance or guarantee as to the expected
results of that Transaction.
(j) Assessment and Understanding. It is capable of assessing the
merits of and understanding (on its own behalf or through
independent professional advice), and understands and accepts, the
terms, conditions and risks of that Transaction. It is also
capable of assuming, and assumes, the risks of that Transaction.
(k) Status of Parties. The other party is not acting as a fiduciary
for or an adviser to it in respect of that Transaction.
(d) Additional Representations and Warranties of Party B. Party B represents
to Party A in accordance with Section 3 of the Agreement (which
representations will be deemed to be repeated by Party B at all times
until the termination of this Agreement) that all representations and
warranties in the Swap Contract Administration Agreement are
incorporated hereby as if made under this Agreement and all references
to the Swap Contract Administration Agreement are references to this
Agreement.
(e) 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.
(f) No Set-off. Notwithstanding any provision of this Agreement or any other
existing or future agreements, each of Party A and Party B irrevocably
waives as to itself any and all contractual rights it may have to
set-off, net, recoup or otherwise withhold or suspend or condition its
payment or performance of any obligation
8
to the other party under this Agreement against any obligation of one
party hereto to the other party hereto arising outside of this Agreement
(which Agreement includes, without limitation, the Master Agreement to
which this Schedule is attached, this Schedule, the Confirmations and
any Credit Support Document). The provisions for Set-Off set forth in
Section 6(e) shall not apply.
(g) Transfer and Assignment. Notwithstanding anything to the contrary in
Section 7 and Section 6(b)(ii) of the Agreement, Party A may assign its
rights and obligations under the Agreement, in whole or in part, to any
Affiliate of Holdings effective 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 substantially the same as the guarantee
then in effect of the obligations of the transferor. Party A will
provide prior written notice to each Swap Rating Agency of any such
assignment. Any transfer pursuant to the foregoing or Section 7 of this
Agreement shall meet the following requirements:
1. No Event of Default nor Termination Event would occur immediately as
a result of such transfer;
2. Party A delivers to Party B both (a) an executed acceptance and
assumption by the Assignee of this Agreement and all Transactions (the
"Transferred Obligations") and (b) an executed guarantee from Party A's
Credit Support Provider on behalf of the Assignee, with respect to the
Transferred Obligations, substantially and in all material respects in
the form of the guaranty provided hereunder;
3. As a result of the Transfer, on the next scheduled payment date Party
B is not required to make payments (tax or otherwise) that are more than
or receive payments (tax or otherwise) that are less than the payments
that Party B would be required to make or receive under the Transactions
or the Agreement had the transfer not occurred.
On the Effective Date, (1) Party A shall be released from all
obligations and liabilities arising under the Transferred Obligations;
(2) the Assignee shall assume all obligations and liabilities under the
Transferred Obligations; and (3) the Transferred Obligations shall cease
to be Transaction(s) under this Agreement and shall be deemed to be
Transaction(s) under the master agreement between Assignee and Party B.
In addition, any transfer pursuant to Section 7 of this Agreement other
than the foregoing shall be subject to Rating Agency Condition and Party
A and Party B will provide prior written notice to each Swap Rating
Agency of any transfer under Section 6(b)(ii).
(h) 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.
(i) 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."
(j) Amendments. Section 9(b) is hereby amended by adding at the end thereof
the sentence: "In addition, any amendment or modification of this
Agreement shall be subject to the Rating Agency Condition."
(k) Amendments to Operative Documents. Party B agrees that it will obtain
Party A's written consent (which consent shall not be unreasonably
withheld) at least ten (10) Business Days prior to amending or
supplementing the Pooling and Servicing Agreement (or any other
transaction document), if such amendment and/or supplement would: (a)
materially adversely affect any of Party A's rights or obligations
hereunder; or (b) modify the obligations of, or impact the ability of,
Party B to fully perform any of Party B's obligations hereunder.
(l) No Bankruptcy Petition. Party A agrees that it will not, until a period
of one year and one day (or if longer, the applicable preference
period), after the payment in full of all of the Swap Certificates,
acquiesce, petition, invoke or otherwise cause Party B to invoke the
process of any governmental authority for the purpose of commencing or
sustaining a case (whether voluntary or involuntary) against Party B
under any bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee,
9
custodian, sequestrator or other similar official of Party B or any
substantial part of its property or ordering the winding-up or
liquidation of the affairs of Party B; 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.
(m) Additional Definition. Section 14 is hereby amended by adding the
following definitions in their appropriate alphabetical order:
"Moody's" means Xxxxx'x Investor Services, Inc.
"Rating Agency Condition" means, with respect to any particular proposed
act or omission to act hereunder, that the party acting or failing to
act has consulted with each Rating Agency then providing a rating of any
Swap Certificates and has received from each Swap Rating Agency a
written confirmation that the proposed action or inaction would not
cause such Swap Rating Agency to downgrade or withdraw its then-current
rating of any Swap Certificates determined without regards to any
financial guarantee insurance policy, if applicable.
"S&P" means Standard & Poor's Ratings Services, a division of
XxXxxx-Xxxx, Inc.
"Swap Rating Agencies " means Moody's and S&P.
"USD" means United States Dollars.
All terms used herein and not otherwise defined are given their meaning
in the Pooling and Servicing Agreement.
(n) Waiver of Trial By Jury. Insofar as is permitted by law, each party
irrevocably waives any and all rights to trial by jury in any legal
proceeding in connection with this agreement or any transaction, and
acknowledges that this waiver is a material inducement to the other
party's entering into this agreement and each transaction hereunder.
(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) for
any reason, the remaining terms, provisions, covenants and conditions
hereof shall continue in full force and effect as if this Agreement had
been executed with the invalid or unenforceable portion eliminated, so
long as this Agreement as so modified continues to express, without
material change, the original intentions of the parties as to the
subject matter of this Agreement and the deletion of such portion of
this Agreement will not substantially impair the respective benefits or
expectations of the parties to this Agreement; 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 connection with any such
Section) shall be held to be invalid or unenforceable.
(p) Limited Liability. Party A and Party B agree to the following: (a) The
Bank of New York ("BNY") is entering into this Agreement not in its
individual or corporate capacity, but solely in its capacity as Swap
Contract Administrator under the Swap Contract Administration
Agreement; (b) in no case shall BNY (or any person acting as successor
Swap Contract Administrator under the Swap Contract Administration
Agreement) be personally liable for or on account of any of the
statements, representations, warranties, covenants or obligations
stated to be those of Party B under the terms of this Agreement, all
such liability, if any, being expressly waived by Party A and any
person claiming by, through or under Party A; and (c) recourse against
Party B shall be limited to the assets available under the Swap
Contract Administration Agreement or the Pooling and Servicing
Agreement.
(q) Regulation AB Compliance. Party A and Party B agree that the terms of
the Item 1115 Agreement dated as of February 24, 2006 (the "Regulation
AB Agreement"), between Countrywide Home Loans, Inc.,
10
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 D
The parties executing this Schedule have executed the Master Agreement and
have agreed as to the contents of this Schedule.
XXXXXX BROTHERS THE BANK OF NEW YORK, not in its
SPECIAL FINANCING INC. individual or corporate capacity but
solely as Swap Contract
Administrator for CWALT, Inc.
Alternative Loan Trust 2006-OC3,
pursuant to a Swap Contract
Administration Agreement
Party A Party B
/s/ Xxxxx Xxxxxx
/s/ Xxxx Xxxxxxx --------------------------------------
-------------------------------------
Name: Xxxx Xxxxxxx Name: Xxxxx Xxxxxx
Title: Vice President Title: Assistant Treasurer
Date: April 28, 2006 Date: April 28, 2006
11
XXXXXX BROTHERS
EXHIBIT A 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 CWALT, Inc. Alternative Loan Trust 2006-OC3, pursuant to a
Swap Contract Administration Agreement, ("Party B") have entered into a Master
Agreement dated as of April 28, 2006, (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 under each Transaction when
and as Party A's obligations thereunder shall become due and payable in
accordance with the terms of the Agreement. In case of the failure of Party A
to pay punctually any such amounts, 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 the Agreement against Party A (other than as a result of the
unenforceability thereof against Party B), 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 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 in respect of any
Event of Default or Potential Event of Default in respect of Party B or any
Affiliate, 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 such time
as Party B shall receive written notice of termination. 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.
1
XXXXXX BROTHERS HOLDINGS INC.
000 XXXXXXX XXXXXX, XXX XXXX, XXX XXXX 00000
XXXXXX BROTHERS
This Guarantee shall be governed by and construed in accordance with the
laws of the State of New York, without reference to choice of law doctrine.
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
in its corporate name by its duly authorized officer as of the date of the
Agreement.
XXXXXX BROTHERS HOLDINGS INC.
By: _________________________________
Name:
Title:
Date:
1
XXXXXX BROTHERS HOLDINGS INC.
000 XXXXXXX XXXXXX, XXX XXXX, XXX XXXX 00000
EXHIBIT B to Schedule
---------------------
[Form of Opinion of Counsel for Party B]
[Date]
Xxxxxx Brothers Special Financing Inc.
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
XXX
Re: CWALT, Inc.
Alternative Loan Trust 2006-OC3
-------------------------------
Ladies and Gentlemen:
We have acted as special counsel for CWALT, Inc., a Delaware corporation
(the "Depositor"), in connection with the issuance of the CWALT, Inc. Mortgage
Pass-Through Certificates of the above-referenced Series (the "Certificates").
The Certificates represent the entire beneficial ownership interest in a trust
fund (the "Trust Fund") created pursuant to a Pooling and Servicing Agreement,
dated as of April 1, 2006 (the "Pooling and Servicing Agreement") among the
Depositor, as depositor, Countrywide Home Loans Inc. ("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 Bank
of New York ("BNY"), as trustee, and The Bank of New York Trust Company, N.A.,
as co-trustee. The assets of the Trust Fund will consist primarily of a pool
of conventional, credit-blemished mortgage loans secured by first liens on
one- to four-family residential properties.
In connection with the issuance of the Certificates, we have also acted as
special counsel to the Depositor in connection with the execution and delivery
of the following documents relating to the Certificates: (i) the Swap Contract
Administration Agreement, dated as of April 28, 2006 (the "Swap Contract
Administration Agreement"), between BNY, in its capacity as swap contract
administrator (in such capacity, the "Swap Contract Administrator") and in its
capacity as Trustee under the Pooling and Servicing Agreement, and CHL, (ii) a
confirmation with a reference number of [] and a trade date of April [], 2006
(the "Confirmation") between CHL and Xxxxxx Brothers Special Financing Inc.
(the "Swap Counterparty"), (iii) the ISDA Master Agreement, Schedule and
Credit Support Annex dated as of April 28, 2006 (collectively, the "Master
Agreement"), between the Swap Counterparty and the Swap Contract Administrator
and (iv) the Swap Contract Assignment Agreement, dated as of April 28, 2006
(the "Swap Contract Assignment Agreement"), between CHL, the Swap Counterparty
and the Swap Contract Administrator. The Master Agreement and the transaction
evidenced by the Confirmation, taken together with the applicable provisions
of the Swap Contract Assignment Agreement, are referred to herein collectively
as the "Swap Agreement".
Capitalized terms not otherwise defined herein have the meanings ascribed to
such terms in the Pooling and Servicing Agreement.
In arriving at the opinion expressed below, we have examined and relied on
originals or copies of the Pooling and Servicing Agreement, the Swap Contract
Administration Agreement, the Swap Contract Assignment Agreement, the Master
Agreement and the Confirmation (collectively, the "Agreements"). In addition,
we have made such investigations of law as we have deemed appropriate as a
basis for the opinion expressed below.
1
Based upon the foregoing, and having regard to legal considerations which we
deem relevant, subject to the assumptions, qualifications and limitations set
forth herein, we are of the opinion that the Swap Agreement constitutes the
valid and binding obligation of the Swap Contract Administrator, enforceable
against the Swap Contract Administrator in accordance with its terms.
The opinion set forth above is subject to certain qualifications,
assumptions and exceptions as set out below.
In rendering the foregoing opinion, we have assumed, without any independent
investigation or verification, the following: (a) the authenticity of original
documents, the legal capacity of all individuals and the genuineness of all
signatures; (b) the conformity to the originals of all documents submitted to
us as certified, conformed or photostatic copies; (c) the truth, accuracy and
completeness of the information, representations and warranties made in
conference or contained in the records, documents, instruments and
certificates we have reviewed; (d) the due organization of the parties to the
Agreements and the power and authority of the parties to the Agreements to
enter into and perform all of their obligations thereunder; (e) the due
authorization, execution and delivery of the Agreements on behalf of the
respective parties thereto; (f) except as expressly covered in the opinion set
forth above, the legal, valid, and binding effect of the Agreements and the
enforceability thereof (in accordance with their terms) against the respective
parties thereto; (g) that the parties have complied and will comply with all
material provisions of the Agreements; (h) the absence of any evidence
extrinsic to the provisions of the written agreements between the parties that
the parties intended a meaning contrary to that expressed by those provisions;
(i) the absence of any agreement or understanding among the parties other than
those contained in the Agreements (or referred to therein or incidental
thereto); (j) that the terms and provisions of the Agreements do not, and the
execution, delivery and performance of the Agreements by any party thereto
does not and will not, violate the organizational documents of such party or
any law, rule, regulation, order or decree of any court, administrative agency
or other governmental authority or agency applicable to such party, or result
in the breach of or a default under any contract or undertaking to which it is
a party or by which it or its property is bound; and (k) that there is nothing
in the laws or public policy of any relevant jurisdiction (other than the
State of New York or the United States of America) that would affect the
opinion set forth above.
Our opinion is qualified as to:
(i) limitations imposed by any applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, fraudulent transfer or
other similar law of general application affecting the enforcement of
creditors' or secured creditors' rights generally;
(ii)general principles of equity including, without limitation, concepts of
materiality and fair dealing, the possible unavailability of specific
performance or injunctive relief, and other similar doctrines affecting the
enforceability of agreements generally (regardless of whether considered in a
proceeding in equity or at law);
(iii) rights to indemnification or contribution which may be limited by
applicable law or equitable principles or otherwise unenforceable as against
public policy,
(iv)the effect of any other limitations imposed by public policy, although
(except as noted in sub-paragraph (iii) above and sub-paragraphs (v) through
(viii) below) we are not aware of any limitation that would be relevant to
such enforcement;
(v) the effect of any requirement conditioning enforcement on the party
seeking enforcement having acted in a commercially reasonable manner and in
good faith in performing its obligations and exercising its rights and
remedies thereunder;
(vi)the discretion of a court to invalidate or decline to enforce any right,
remedy or provision of the Swap Agreement, determined by it, in any such case,
to be a penalty;
(vii) the unenforceability of any provision requiring the payment of
attorney's fees, except to the extent that a court determines such fees to be
reasonable; and
2
(viii) the effect of any requirement that a claim (or a foreign currency
judgment in respect of such claim) be converted into United States dollars at
a rate of exchange prevailing on a date determined pursuant to applicable law.
Without in any way limiting the effect of sub-paragraph (viii) above, we
note that a judgment for money in an action in a federal or state court in the
United States ordinarily would be enforced in the United States only in United
States dollars. The date used to determine the rate of conversion of a foreign
currency into United States dollars will depend upon various factors,
including which court renders the judgment. By way of example, under Section
27 of the New York Judiciary Law, a state court in the State of New York
rendering a judgment on an obligation required to be paid in a foreign
currency will be required to render such judgment in such foreign currency,
and such judgment would be converted into United States dollars at the
exchange rate prevailing on the date of entry of the judgment.
Certain of the remedial provisions of the Swap Agreement may be limited or
rendered ineffective or unenforceable in whole or in part, but the inclusion
of such provisions does not make the remedies provided by such Agreement
inadequate for the practical realization of the respective rights and benefits
purported to be provided thereby (except for the economic consequences of
procedural or other delay, as to which we express no opinion).
We express no opinion:
(a) as to any provision in the Swap Agreement to the extent that such
provision refers to, or incorporates by reference, the provisions of any
agreement other than the Swap Agreement;
(b) regarding any severability provision;
(c) with respect to the creation, perfection or priority of any security
interest or as to the effect thereof or the rights and remedies or obligations
of any party to the Swap Agreement in respect thereof;
(d) as to the effect of: (i) the compliance or non-compliance of Xxxxxx
Brothers Special Financing Inc. with any United States state or federal laws
or regulations or any other laws or regulations applicable to Xxxxxx Brothers
Special Financing Inc., including limitations or restrictions that apply to
financial institutions; or (ii) the failure of Xxxxxx Brothers Special
Financing Inc. to be duly authorized to conduct business in any jurisdiction;
(e) with respect to any federal or state securities, "blue sky" or other
similar laws;
(f) as to the enforceability of any rights to specific performance provided
for in the Swap Agreement; or
(g) as to whether a federal court of the United States of America or a state
court outside the State of New York would give effect to the choice of New
York law provided for in the Swap Agreement.
Our opinion herein, as it pertains to the enforceability of provisions
contained in the Swap Agreement pursuant to which the parties thereto agree to
submit to the jurisdiction of the United States federal courts referred to
herein, is subject to the power of such courts to transfer actions pursuant to
28 U.S.C. ss. 1404(a) or to dismiss such actions or proceedings on the ground
that such a federal court is an inconvenient forum for such an action or
proceeding and we note that such issues may be raised by the court sua sponte.
In addition, we express no opinion as to the subject matter jurisdiction of
any United States federal court to adjudicate any action relating to the
Agreements where jurisdiction based on diversity of citizenship under 27
U.S.C. ss. 1332 does not exist.
As noted above, the conclusions set forth herein are subject to the accuracy
of the factual assumptions described above and the absence of additional facts
that would materially affect the validity of the assumptions set forth herein.
Our conclusions as to any legal matters in this letter speak only as of the
date hereof. We assume no obligation to revise or supplement this letter
should such factual matters change or should such laws or regulations be
changed by legislative or regulatory action, judicial decision or otherwise,
and we hereby express no opinion as to the effect any such changes may have on
the foregoing opinion. We do not express any opinion, either implicitly or
otherwise, on any issue not expressly addressed in the third paragraph of this
letter.
3
To the extent our opinion herein pertains to the enforceability of Part 4(h)
of the Schedule to the Master Agreement pursuant to which the Trust and the
Swap Counterparty have agreed that the laws of the State of New York shall
govern the Agreement, we have relied on Section 5-1401 of the New York General
Obligations Law, which states in pertinent part: "The parties to any contract,
agreement or undertaking, contingent or otherwise, in consideration of, or
relating to any obligation arising out of a transaction covering in the
aggregate not less than two hundred fifty thousand dollars . . . may agree
that the law of this state shall govern their rights and duties in whole or in
part, whether or not such contract, agreement or undertaking bears a
reasonable relation to this state."
We express no opinion as to matters of law other than the law of the State
of New York and the federal law of the United States of America. In rendering
the foregoing opinion we have assumed that enforcement of the Swap Agreement
in accordance with New York law would not violate any provision of any law of
any jurisdiction (other than the State of New York) or any public policy of
any jurisdiction that bears a reasonable relation to the Agreements or the
transaction in which the Swap Agreement is being executed and delivered by the
parties thereto.
The opinion expressed herein is solely for your benefit in connection with
the transactions contemplated by the Agreements and may not be relied on in
any manner or for any purpose by any other individual, partnership,
corporation or other governmental or non-governmental entity (each a
"Person"), nor may any copies thereof be published, communicated, filed with
or otherwise made available in whole or in part to any other Person without
our specific prior written consent. By accepting this letter, each Person to
whom this letter is addressed (other than the Depositor) recognizes and
acknowledges that (i) no attorney-client relationship exists or has existed
between the lawyers in our firm representing the Depositor and such Person in
connection with the execution of the Agreements or by virtue of this letter,
(ii) in order to permit reliance by such Person on this letter, the lawyers in
our firm representing the Depositor conducted no activities in addition to
those undertaken or conducted for the purpose of rendering this letter to the
Depositor as one of the addressees hereof and (iii) this letter may not be
appropriate or sufficient for such Person's purposes.
Very truly yours,
4
EXHIBIT C to Schedule
---------------------
[Form of Opinion of Counsel for
Xxxxxx Brothers Special Financing Inc. and
Xxxxxx Brothers Holdings Inc.]
April 28, 0000
XXX XXXX XX XXX XXXX,
not in its individual or corporate capacity
but solely as Swap Contract Administrator for
CWALT, Inc. Alternative Loan Trust 2006-OC3,
Swap Contract Administration Agreement
x/x Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration MBS Administration,
CWALT, Series 2006-OC3
Ladies and Gentlemen:
I have acted as counsel to Xxxxxx Brothers Special Financing Inc., a
Delaware corporation ("Party A") and Xxxxxx Brothers Holdings Inc., a Delaware
corporation ("Guarantor"), and am familiar with matters pertaining to the
execution and delivery of the Master Agreement (the "Master Agreement") dated
as of April 28, 2006 between Party A and THE BANK OF NEW YORK, not in its
individual or corporate capacity but solely as Swap Contract Administrator for
CWALT, Inc. Alternative Loan Trust 2006-OC3, pursuant to a Swap Contract
Administration Agreement and the guarantee of Guarantor (the "Guarantee")
delivered in connection with the Master Agreement.
In connection with this opinion, I have examined, or have had examined
on my behalf, an executed copy of the Master Agreement and the Guarantee,
certificates and statements of public officials and officers of Party A and
Guarantor and such other agreements, instruments, documents and records as I
have deemed necessary or appropriate for the purposes of this opinion.
Except as expressly set forth herein, no independent investigation
(including, without limitation, conducting any review, search or investigation
of any public files, records or dockets) has been undertaken to determine the
existence or absence of the facts that are material to my opinions, and no
inference as to my knowledge concerning such facts should be made.
When used herein the phrase "to my knowledge" means to my actual
knowledge without independent investigation.
References in this letter to "Applicable Laws" are to those laws, rules
and regulations of the State of New York which, in my experience, are normally
applicable to transactions of the type contemplated by the Master Agreement
and the Guarantee. References in this letter to "Governmental Authorities" are
to executive, legislative, judicial, administrative or regulatory bodies of
the State of New York. References in this letter to "Governmental Approval"
are to any consent, approval, license, authorization or validation of, or
filing, recording or registration with, any Governmental Authority pursuant to
Applicable Laws.
Based on the foregoing but subject to the assumptions, exceptions,
qualifications and limitations hereinafter expressed, I am of the opinion
that:
1
(i) Each of Party A and Guarantor is a corporation duly incorporated,
validly existing and in good standing under the laws of the State
of Delaware.
(ii) The execution, delivery and performance of the Master Agreement
in the case of Party A, and the Guarantee, in the case of
Guarantor, are within its corporate power, have been duly
authorized by all corporate action and do not conflict with any
provision of its certificate of incorporation or by-laws.
(iii) The Master Agreement, in the case of Party A, and the Guarantee,
in the case of Guarantor, have been duly executed and delivered
and each constitutes a legal, valid and binding obligation,
enforceable against it in accordance with its respective terms.
(iv) To the best of my knowledge, no Governmental Approval is
required in connection with the execution, delivery and
performance of the Master Agreement in the case of Party A, or
the Guarantee, in the case of Guarantor, except those that have
been obtained and, to my knowledge, are in effect.
The foregoing opinions are subject to the following assumptions,
exceptions, qualifications and limitations:
A. My opinion in paragraph 3 above is subject to: (i) bankruptcy,
insolvency, reorganization, receivership, moratorium or similar laws affecting
creditors' rights generally (including, without limitation, the effect of
statutory or other laws regarding fraudulent or other similar transfers or
conveyances); (ii) general principles of equity, regardless of whether
enforceability is considered in a proceeding in equity or at law; (iii) laws
and considerations of public policy that may limit the enforceability of
provisions (a) regarding indemnification and contribution rights and
obligations, (b) regarding the waiver or limitation of rights to trial by
jury, oral amendments to written agreements or rights of setoff, (c) relating
to submission to jurisdiction, venue or service of process, and (d) purporting
to prohibit or restrict, or require the consent of the "account debtor" (as
defined in Section 9-102 of the Uniform Commercial Code as in effect in the
State of New York (the "NYUCC" )) for, the creation, perfection or enforcement
of a security interest in "accounts" or "general intangibles" (in each case,
as defined in Section 9-102 of the NYUCC).
B. I am a member of the Bar of the State of New York and render no
opinion on the laws of any jurisdiction other than the laws of the State of
New York and the General Corporation Law of the State of Delaware. Except as
described, I have not examined, or had examined on my behalf, and I do not
express any opinion with respect to, Delaware law.
C. My opinions are limited to the present laws and to the facts as they
presently exist, and no opinion is to be inferred or implied beyond the
matters expressly so stated. I assume no obligation to revise or supplement
this opinion should the present laws of the jurisdictions referred to in
paragraph B above be changed by legislative action, judicial decision or
otherwise.
D. This letter is rendered solely to you solely for your benefit in
connection with the Master Agreement and the Guarantee and the transactions
related thereto and may not be relied upon by any other person, entity or
agency or by you in any other context or for any other purpose. This letter
may not be circulated, used or quoted in whole or in part, nor may copies
thereof be furnished or delivered to any other person, without the prior
written consent of Xxxxxx Brothers Holdings Inc., except that you may furnish
copies hereof (i) to your independent auditors and attorneys, (ii) to any
United States, state or local authority having jurisdiction over you or over
Party A or Guarantor, (iii) pursuant to the order of any legal process of any
court of competent jurisdiction or any governmental agency, and (iv) in
connection with any legal action arising out of the Master Agreement or the
Guarantee.
2
E. I have assumed with your permission (i) the genuineness of all
signatures by each party other than Party A or Guarantor, (ii) the
authenticity of documents submitted to me as originals and the conformity to
authentic original documents of all documents submitted to me as copies, (iii)
the accuracy of the matters set forth in the documents, agreements and
instruments I reviewed, (iv) that each party other than Party A and Guarantor
is duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization, (v) the due execution and delivery, pursuant to
due authorization, of the Master Agreement by each party other than Party A,
and (vi) that the Master Agreement is the legal, valid, binding and
enforceable obligation of each party other than Party A, enforceable against
each such party in accordance with its terms.
F. My opinion in paragraph 3 is subject to the qualification that
certain provisions contained in the Agreement and the Guarantee may not be
enforceable, but such unenforceability will not render the Agreement or the
Guarantee invalid as a whole or substantially interfere with the practical
realization of the principal benefits provided thereby.
The foregoing opinions are given on the express understanding that the
undersigned is an officer of Xxxxxx Brothers Inc. and shall in no event incur
any personal liability in connection with said opinions.
Very truly yours,
3
EXHIBIT D to Schedule
---------------------
[REGULATION AB AGREEMENT]
-------------------------
4
