GUARANTEE OF LEHMAN BROTHERS HOLDINGS INC.
Exhibit
99.4
▇▇▇▇▇▇
BROTHERS
GUARANTEE
OF ▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
▇▇▇▇▇▇
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 Alternative
Loan
Trust 2007-OH3 (“Party
B”)
have entered
into a Master
Agreement dated as of July 30, 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, ▇▇▇▇▇▇ 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 o r
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.
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▇▇▇▇▇▇
BROTHERS HOLDINGS INC.
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By:
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/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ III
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Name:
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▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇ III
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Title:
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Vice
President
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Date:
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July
27,
2007
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