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EXHIBIT 4(c)
[FORM OF] RELATED NOTE GUARANTEE AGREEMENT (the "Related
Note Guarantee"), dated as of ,
199[ ], executed and delivered by X.X. XXXXXX & CO.
INCORPORATED, a Delaware corporation ("X.X. Xxxxxx"), for the
benefit of FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION, as
Property Trustee (the "Property Trustee") of X.X. XXXXXX INDEX
FUNDING COMPANY I, a Delaware statutory business trust (the
"Trust") and as the holder from time to time of the Related
Notes (as defined below).
WHEREAS, the Trust intends to issue from time to time, in one or
more series, its common trust securities (the "Common Securities") to and
receive related capital contributions from X.X. Xxxxxx, and to issue and sell
from time to time, in one or more series, related preferred trust securities
(the "Preferred Securities") with such rights, preferences, privileges,
limitations and restrictions as are set forth in a declaration supplement or
supplements (each, a "Declaration Supplement") to the Declaration (as defined
below) providing for the issuance of such series;
WHEREAS, the Trust, on behalf of the holders from time to time of
each series of Preferred Securities and related Common Securities, will purchase
from Xxxxxx Guaranty Trust Company of New York, a trust company with full
banking powers organized under the laws of the State of New York and a
wholly-owned subsidiary of X.X. Xxxxxx ("Xxxxxx Guaranty"), one or more related
notes (the "Related Notes") with the proceeds from the issuance and sale of each
series of Preferred Securities and related Common Securities, the distribution
and principal repayment terms of which Related Note shall mirror the related
series of securities; and
WHEREAS, X.X. Xxxxxx desires hereby to irrevocably and
unconditionally agree to the extent set forth herein to pay to the Property
Trustee the Related Note Guarantee Payments (as defined below) and to make
certain other payments on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by the Trust of the
Related Notes, which purchase X.X. Xxxxxx hereby agrees shall benefit X.X.
Xxxxxx and which
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purchase X.X. Xxxxxx acknowledges will be made in reliance upon the execution
and delivery of this Related Note Guarantee, X.X. Xxxxxx executes and delivers
this Related Note Guarantee for the benefit of the Property Trustee for the
benefit of the holders from time to time of the Preferred Securities and the
related Common Securities.
ARTICLE I
As used in this Related Note Guarantee, the terms set forth below
shall have the following meanings:
"Related Note Guarantee Payments" shall mean, with respect to any
Related Note, the following payments, without duplication, to the extent not
paid by Xxxxxx Guaranty: (i) any accrued and unpaid interest on such Related
Note and (ii) the Related Note Redemption Price (including all accrued and
unpaid interest) payable with respect to such Related Note to be redeemed, in
whole or in part, upon redemption thereof.
"Declaration" shall mean the Trust's Amended and Restated
Declaration of Trust dated as of October 10, 1997, among the Sponsor, the
Regular Trustees, the Property Trustee, the Delaware Trustee (each as defined
therein) and the holders from time to time of securities of the Trust, as
amended from time to time.
"Principal Amount" shall mean, at any time with respect to any
Preferred Security of any series and, if applicable, the related Common
Securities, the Redemption Value, the applicable Early Redemption Value or
stated liquidation preference thereof, as applicable, determined in accordance
with the Declaration Supplement creating such series of Preferred Securities.
"Related Note Redemption Price" shall mean, with respect to any
Related Note at any time, an amount equal to the aggregate Principal Amount of
all Preferred Securities of the related series and related Common Securities to
be redeemed at such time, plus accrued and unpaid interest with respect to such
Related Note to but excluding the date of redemption.
ARTICLE II
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SECTION 2.01. X.X. Xxxxxx irrevocably and unconditionally agrees, to
the extent set forth herein, to pay in full, to the Property Trustee, for the
benefit of the holders from time to time of the Preferred Securities and related
Common Securities associated with any Related Note, the Related Note Guarantee
Payments with respect to such Related Note, as and when due (except to the
extent paid by Xxxxxx Guaranty), regardless of any defense, right of set-off or
counterclaim which the Xxxxxx Guaranty may have or assert. This Related Note
Guarantee is continuing, irrevocable, unconditional and absolute.
SECTION 2.02. X.X. Xxxxxx hereby waives notice of acceptance of this
Related Note Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 2.03. The obligations, covenants, agreements and duties of
X.X. Xxxxxx under this Related Note Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by Xxxxxx Guaranty of any express or implied
agreement, covenant, term or condition relating to the Related Notes to be
performed or observed by Xxxxxx Guaranty;
(b) the extension of time for the payment by Xxxxxx Guaranty of all
or any portion of the interest payments, the Related Note Redemption Price
or any other sums payable under the terms of the Related Notes or the
extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Related Notes;
(c) any failure, omission, delay or lack of diligence on the part of
the Property Trustee or the Trust to enforce, assert or exercise any
right, privilege, power or remedy conferred on the Property Trustee or the
Trust pursuant to the terms of the Related Notes, or any action on the
part of Xxxxxx Guaranty granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership,
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insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt of, or
other similar proceedings affecting, Xxxxxx Guaranty or any of the assets
of Xxxxxx Guaranty;
(e) any invalidity of, or defect or deficiency in, any of the
Related Notes; or
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred.
There shall be no obligation of the Property Trustee or the Trust to give notice
to, or obtain consent of, X.X. Xxxxxx with respect to the happening of any of
the foregoing.
SECTION 2.04. This is a guarantee of payment and not of collection.
The Property Trustee may enforce this Guarantee directly against X.X. Xxxxxx,
and X.X. Xxxxxx waives any right or remedy to require that any action be brought
against Xxxxxx Guaranty or any other person or entity before proceeding against
X.X. Xxxxxx. Subject to Section 2.05 hereof, all waivers herein contained shall
be without prejudice to the Property Trustee's right to proceed against Xxxxxx
Guaranty, whether by separate action or by joinder.
SECTION 2.05 X.X. Xxxxxx shall be subrogated to all (if any) rights
of the Property Trustee against Xxxxxx Guaranty in respect of any amounts paid
to the Property Trustee by X.X. Xxxxxx under this Related Note Guarantee and
Xxxxxx Guaranty shall not be required to make payment to the Property Trustee of
any amount of Related Note Guarantee Payments in respect of which payment has
theretofore been made by X.X. Xxxxxx pursuant to Section 2.01 hereof; provided,
however, that X.X. Xxxxxx shall not (except to the extent required by mandatory
provisions of law) exercise any rights which it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of a payment under this Related Note Guarantee, if, at the time of any
such payment, any amounts are due and unpaid under this Related Note Guarantee.
If any amount shall be paid to X.X. Xxxxxx in violation of the preceding
sentence, X.X. Xxxxxx agrees to pay over such amount to the Property Trustee for
application to the Related Note Guarantee Payments then due hereunder, if any,
or to amounts due the Trust from Xxxxxx Guaranty under the relevant Related
Note.
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SECTION 2.06. X.X. Xxxxxx acknowledges that its obligations
hereunder are independent of the obligations of Xxxxxx Guaranty with respect to
the Related Notes and that X.X. Xxxxxx shall be liable as principal and sole
debtor hereunder to make Related Note Guarantee Payments pursuant to the terms
of this Related Note Guarantee notwithstanding the occurrence of any event
referred to in subsections (a) through (f), inclusive, of Section 2.03 hereof.
ARTICLE III
The Related Note Guarantee will constitute an unsecured obligation
of X.X. Xxxxxx and will rank (i) subordinate and junior in right of payment to
all other liabilities of X.X. Xxxxxx, (ii) pari passu with the most senior
preferred stock outstanding as of the date hereof of X.X. Xxxxxx and (iii)
senior to X.X. Xxxxxx'x common stock.
ARTICLE IV
This Related Note Guarantee shall terminate and be of no further
force and effect as to any Related Note upon full payment of the Related Note
Redemption Price with respect to such Related Note; provided, however, that this
Related Note Guarantee shall continue to be effective or shall be reinstated, as
the case may be, if at any time the Property Trustee must restore payment of any
sums paid under such Related Note or under this Related Note Guarantee for any
reason whatsoever. X.X. Xxxxxx agrees to indemnify the Property Trustee and hold
it harmless against any loss it may suffer in such circumstances.
ARTICLE V
SECTION 5.01. All guarantees and agreements contained in this
Related Note Guarantee shall bind the successors, assigns, receivers, trustees
and representatives of X.X. Xxxxxx and shall inure to the benefit of the
Property Trustee and its successors. X.X. Xxxxxx shall not assign its
obligations hereunder without the prior approval of the Property Trustee.
SECTION 5.02. This Related Note Guarantee may be amended or waived
only with the prior approval of the
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Property Trustee; provided that no such amendment or waiver shall adversely
affect the holders of the Preferred Securities without the consent of at least a
majority in Principal Amount of all Preferred Securities of each affected series
then outstanding, voting as a single class.
SECTION 5.03. Any notice, request or other communication required or
permitted to be given hereunder to X.X. Xxxxxx shall be given in writing by mail
or by facsimile transmission (followed by mail), addressed to X.X.
Xxxxxx, as follows:
X.X. Xxxxxx & Co. Incorporated
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Assistant Secretary
Any notice, request or other communication required or permitted to
be given hereunder to the Property Trustee shall be given by X.X. Xxxxxx in the
same manner as set forth in Section 14.01 of the Declaration.
SECTION 5.04. This Related Note Guarantee is solely for the benefit
of the Property Trustee and is not separately transferable from the Related
Notes.
SECTION 5.05. Pursuant to the Declaration, under certain
circumstances, holders of not less than a majority in Principal Amount of
Preferred Securities of any series voting as a separate class shall have the
right to direct the Property Trustee to enforce its rights under this Related
Note Guarantee.
SECTION 5.06. THIS RELATED NOTE GUARANTEE SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, this Related Note Guarantee is executed as of
the day and year first above written.
X.X. XXXXXX & CO.
INCORPORATED,
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By
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Name:
Title:
