GUARANTEE OF LEHMAN BROTHERS HOLDINGS INC.
EXHIBIT
99.7
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.
(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, Xxxxxxxxx has caused this Guarantee to be executed by its
duly
authorized officer as of the date of the Agreement.
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XXXXXX
BROTHERS HOLDINGS INC.
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By:
/s/ Xxxxx X. Xxxxxxxxxx, III
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| Name: Xxxxx X. Xxxxxxxxx, III | |||
| Title: Vice President | |||
| Date: August 13th, 2007 | |||
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