ISSUING AND PAYING AGENCY AGREEMENT [FOREIGN ISSUER WITH GUARANTY]
[FOREIGN
ISSUER WITH GUARANTY]
This
Agreement, dated as of May 22, 2008, is by and among Xxxxxxxxx-Xxxx Global
Holding Company Limited (the “Issuer”),
Xxxxxxxxx-Xxxx Company Limited (the “Guarantor”)
and
JPMorgan Chase Bank, National Association (“JPMorgan”).
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1.
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APPOINTMENT
AND ACCEPTANCE
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The
Issuer and the Guarantor hereby request that JPMorgan act as the Issuer’s
issuing and paying agent in connection with the issuance and payment of certain
short-term promissory notes of the Issuer (the “Notes”),
as
further described herein, and JPMorgan agrees to act as such agent upon the
terms and conditions contained in this Agreement.
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2.
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COMMERCIAL
PAPER PROGRAMS
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The
Issuer may establish one or more commercial paper programs under this Agreement
by delivering to JPMorgan a completed program schedule (the “Program
Schedule”)
with
respect to each
such
program. JPMorgan has given the Issuer a copy of the current form of Program
Schedule, and the Issuer shall complete and return its first Program Schedule
to
JPMorgan prior to or simultaneously with the execution of this Agreement. In
the
event that any of the information provided in, or attached to, a Program
Schedule shall change, the Issuer shall promptly inform JPMorgan of such change
in writing.
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3.
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NOTES
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All
Notes
issued by the Issuer under this Agreement shall be short-term promissory notes,
guaranteed by the Guarantor, exempt from the registration requirements of the
Securities Act of 1933, as amended, and from applicable state securities laws.
The Notes may be placed by dealers (the “Dealers”)
pursuant to Section 4 hereof. Notes shall be issued in either certificated
or
book-entry form.
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4.
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AUTHORIZED
REPRESENTATIVES
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The
Issuer shall deliver to JPMorgan a certified copy of duly adopted corporate
resolutions from its Board of Directors (or other governing body) authorizing
the issuance of Notes under each program established pursuant to this Agreement
and a certificate of incumbency, with specimen signatures attached, of those
officers, employees and agents of the Issuer authorized to take certain actions
with respect to the Notes as provided in this Agreement. The Guarantor shall
deliver to JPMorgan a certified copy of duly adopted corporate resolutions
from
its Board of Directors (or other governing body) authorizing its guaranty of
the
Notes and a certificate of incumbency, with specimen signatures attached, of
those officers, employees and agents of the Guarantor authorized to execute
this
Agreement and take certain actions with respect to the Notes as provided in
this
Agreement. Each person named on any certificate of incumbency of the Issuer
or
the Guarantor is hereinafter referred to as an “Authorized
Representative”.
Until
JPMorgan receives any subsequent incumbency certificates, JPMorgan shall be
entitled to rely on the last incumbency certificate delivered to it by the
Issuer or the Guarantor for the purpose of determining such party’s Authorized
Representatives. The Issuer and Guarantor represent and warrant that each of
its
Authorized Representatives may appoint other officers, employees and agents
(the
“Delegates”),
including without limitation any Dealers, to issue instructions to JPMorgan
under this Agreement, and take other actions on its behalf hereunder, provided
that notice of the appointment of each Delegate is delivered to JPMorgan in
writing. Each such appointment shall remain in effect unless and until revoked
by the Issuer or the Guarantor in a written notice to JPMorgan.
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5.
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CERTIFICATED
NOTES
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If
and
when the Issuer intends to issue certificated notes (“Certificated
Notes”),
the
Issuer and JPMorgan shall agree upon the form of such Notes. Thereafter, the
Issuer shall from time to time deliver to JPMorgan adequate supplies of
Certificated Notes which will be in bearer form, serially numbered, and shall
be
executed by the manual or facsimile signature of an Authorized Representative
of
each of the Issuer and the Guarantor. JPMorgan will acknowledge receipt of
any
supply of Certificated Notes received from the Issuer, noting any exceptions
to
the shipping manifest or transmittal letter (if any), and will hold the
Certificated Notes in safekeeping for the Issuer in accordance with JPMorgan’s
customary practices. JPMorgan shall not have any liability to the Issuer or
the
Guarantor to determine by whom or by what means a facsimile signature may have
been affixed on Certificated Notes, or to determine whether any facsimile or
manual signature is genuine, if such facsimile or manual signature resembles
the
specimen signature attached to the Issuer’s certificate of incumbency with
respect to such Authorized Representative. Any Certificated Note bearing the
manual or facsimile signature of a person who is an Authorized Representative
on
the date such signature was affixed shall bind the Issuer and the Guarantor
after completion thereof by JPMorgan, notwithstanding that such person shall
have ceased to hold his or her office on the date such Note is countersigned
or
delivered by JPMorgan.
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6.
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BOOK-ENTRY
NOTES
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The
Issuer’s Book-entry notes (“Book-Entry
Notes”)
shall
not be issued in physical form, but their aggregate face amount shall be
represented by a master note (the “Master
Note”)
in the
form of Exhibit A executed by the Issuer and the Guarantor pursuant to the
book-entry commercial paper program of The Depository Trust Company
(“DTC”).
JPMorgan shall maintain the Master Note in safekeeping, in accordance with
its
customary practices, on behalf of Cede & Co., the registered owner thereof
and nominee of DTC. As long as Cede & Co. is the registered owner of the
Master Note, the beneficial ownership interest therein shall be shown on, and
the transfer of ownership thereof shall be effected through, entries on the
books maintained by DTC and the books of its direct and indirect participants.
The Master Note and the Book-entry Notes shall be subject to DTC’s rules and
procedures, as amended from time to time. JPMorgan shall not be liable or
responsible for sending transaction statements of any kind to DTC’s participants
or the beneficial owners of the Book-entry Notes, or for maintaining,
supervising or reviewing the records of DTC or its participants with respect
to
such Notes. In connection with DTC’s program, the Issuer and Guarantor
understand that as one of the conditions of their participation therein, it
shall be necessary for the Issuer, the Guarantor and JPMorgan to enter into
a
Letter of Representations, in the form of Exhibit B hereto, and for DTC to
receive and accept such Letter of Representation. In accordance with DTC’s
program, JPMorgan shall obtain from the CUSIP Service Bureau a written list
of
CUSIP numbers for Issuer’s Book-entry Notes, and JPMorgan shall deliver such
list to DTC. The CUSIP Service Bureau shall xxxx the Issuer directly for the
fee
or fees payable for the list of CUSIP numbers for the Issuer’s Book-entry
Notes.
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7.
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ISSUANCE
INSTRUCTIONS TO JPMORGAN; PURCHASE
PAYMENTS
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The
Issuer and the Guarantor understand that all instructions under this Agreement
are to be directed to JPMorgan’s Commercial Paper Operations Department.
JPMorgan shall provide the Issuer, the Guarantor, or, if applicable, the
Issuer’s Dealers, with access to JPMorgan’s Money Market Issuance System or
other electronic means (collectively, the “System”)
in
order that JPMorgan may receive electronic instructions for the issuance of
Notes. Electronic instructions must be transmitted in accordance with the
procedures furnished by JPMorgan to the Guarantor, the Issuer or its Dealers
in
connection with the System. In the event that the System is inoperable at any
time, an Authorized Representative or a Delegate may deliver written, telephone
or facsimile instructions to JPMorgan, which instructions shall be verified
in
accordance with any security procedures agreed upon by the parties. JPMorgan
shall incur no liability to the Issuer or the Guarantor in acting upon
instructions believed by JPMorgan in good faith to have been given by an
Authorized Representative or a Delegate. In the event that a discrepancy exists
between a telephonic instruction and a written confirmation, the telephonic
instruction will be deemed the controlling and proper instruction. JPMorgan
may
electronically record any conversations made pursuant to this Agreement, and
the
Issuer and the Guarantor hereby consent to such recordings. All issuance
instructions regarding the Notes must be received by 1:00 P.M. New York time
in
order for the Notes to be issued or delivered on the same day.
2
(a) Issuance
and Purchase of Book-entry Notes.
Upon
receipt of issuance instructions from the Issuer or its Dealers with respect
to
Book-entry Notes, JPMorgan shall transmit such instructions to DTC and direct
DTC to cause appropriate entries of the Book-entry Notes to be made in
accordance with DTC’s applicable rules, regulations and procedures for
book-entry commercial paper programs. JPMorgan shall assign CUSIP numbers to
the
Issuer’s Book-entry Notes to identify the Issuer’s aggregate principal amount of
outstanding Book-entry Notes in DTC’s system, together with the aggregate unpaid
interest (if any) on such Notes. Promptly following DTC’s established settlement
time on each issuance date, JPMorgan shall access DTC’s system to verify whether
settlement has occurred with respect to the Issuer’s Book-entry Notes. Prior to
the close of business on such business day, JPMorgan shall deposit immediately
available funds in the amount of the proceeds due the Issuer (if any) to the
Issuer’s account at JPMorgan and designated in the applicable Program Schedule
(the “Account”),
provided
that
JPMorgan
has received DTC’s confirmation that the Book-entry Notes have settled in
accordance with DTC’s applicable rules, regulations and procedures. JPMorgan
shall have no liability to the Issuer or the Guarantor whatsoever if any DTC
participant purchasing a Book-entry Note fails to settle or delays in settling
its balance with DTC or if DTC fails to perform in any respect.
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(b)
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Issuance
and Purchase of Certificated Notes.
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Upon
receipt of issuance instructions with respect to Certificated Notes, JPMorgan
shall: (a) complete each Certificated Note as to principal amount, date of
issue, maturity date, place of payment, and rate or amount of interest (if
such
Note is interest bearing) in accordance with such instructions; (b) countersign
each Certificated Note; and (c) deliver each Certificated Note in accordance
with the Issuer’s instructions. Whenever JPMorgan is instructed to deliver any
Certificated Note by mail, JPMorgan shall strike from the Certificated Note
the
word “Bearer,” insert as payee the name of the person so designated by the
Issuer or the Guarantor and effect delivery by mail to such payee or to such
other person as is specified in such instructions to receive the Certificated
Note. The Issuer and the Guarantor understand that, in accordance with the
custom prevailing in the commercial paper market, delivery of Certificated
Notes
shall be made before the actual receipt of payment for such Notes in immediately
available funds, even if JPMorgan is instructed to deliver a Certificated Note
against payment. Therefore, once JPMorgan has delivered a Certificated Note
to
the designated recipient, the Issuer and the Guarantor shall bear the risk
that
such recipient may fail to remit payment of such Note or return such Note to
JPMorgan. Delivery of Certificated Notes shall be subject to the rules of the
New York Clearing House in effect at the time of such delivery. Funds received
in payment of Certificated Notes shall be credited to the Account.
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8.
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USE
OF SALES PROCEEDS IN ADVANCE OF
PAYMENT
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JPMorgan
is not obligated to credit the Issuer’s Account unless and until payment of the
purchase price of each Note is received by JPMorgan. From time to time,
JPMorgan, in its sole discretion, may permit the Issuer to have use of funds
payable with respect to the Notes prior to JPMorgan’s receipt of the sales
proceeds of such Notes. If JPMorgan makes a deposit, payment or transfer of
funds on behalf of the Issuer before JPMorgan receives payment for any Notes,
such deposit, payment or transfer of funds shall represent an advance by
JPMorgan to the Issuer to be repaid promptly, and in any event on the same
day
as it is made, from the proceeds of the sale of the Notes, or by the Issuer
or
the Guarantor if such proceeds are not received by JPMorgan.
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9.
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PAYMENT
OF MATURED NOTES
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Notice
that an Issuer will not redeem any Note on the relative Initial Redemption
Date
(as defined in the applicable Extendible Commercial Note Announcement) must
be
received in writing by JPMorgan by 11:00 A.M. on such Initial Redemption Date.
On any day when a Note matures or is prepaid, the Issuer shall transmit, or
cause to be transmitted, to the Account, prior to 2:00 P.M. New York time on
the
same day, an amount of immediately available funds sufficient to pay the
aggregate principal amount of such Note and any applicable interest due.
JPMorgan shall pay the interest (if any) and principal on a Book-entry Note
to
DTC in immediately available funds, which payment shall be by net settlement
of
JPMorgan’s account at DTC. JPMorgan shall pay Certificated Notes upon
presentment. JPMorgan may without liability to the Issuer or the Guarantor
refuse to pay any Note that would result in an overdraft to the
Account.
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10.
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OVERDRAFTS
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a.
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Intraday
overdrafts with respect to each Account shall be subject to JPMorgan’s
policies as in effect from time to
time.
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b.
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An
overdraft will exist in an Account if JPMorgan, in its sole discretion,
(i) permits an advance to be made pursuant to Section 8, notwithstanding
the provisions of Section 8, and such advance is not repaid in full
on the
same day as it is made, or (ii) pays a Note pursuant to Section 9
in
excess of the available collected balance in such Account. Overdrafts
shall be subject to JPMorgan’s established banking practices, including,
without limitation, the imposition of interest, funds usage charges
and
administrative fees. The Issuer shall repay any such overdraft, fees
and
charges no later than the next business day, together with interest
on the
overdraft at the rate established by JPMorgan for the Account, computed
from and including the date of the overdraft to the date of
repayment.
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11.
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NO
PRIOR COURSE OF DEALING
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No
prior
action or course of dealing on the part of JPMorgan with respect to advances
of
the purchase price or payments of matured Notes shall give rise to any claim
or
cause of action by the Issuer or the Guarantor against JPMorgan in the event
that JPMorgan refuses to pay or settle any Notes for which the Issuer or the
Guarantor has not timely provided funds as required by this
Agreement.
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12.
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RETURN
OF CERTIFICATED NOTES
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JPMorgan
will in due course cancel any Certificated Note presented for payment and return
such Note to the Issuer. JPMorgan shall also cancel and return to the Issuer
any
spoiled or voided Certificated Notes. Promptly upon written request of the
Issuer or at the termination of this Agreement, JPMorgan shall destroy all
blank, unissued Certificated Notes in its possession and furnish a certificate
to the Issuer certifying such actions.
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13.
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INFORMATION
FURNISHED BY CHASE
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Upon
the
reasonable request of the Issuer or the Guarantor, JPMorgan shall promptly
provide the Issuer or the Guarantor with information with respect to any Note
issued and paid hereunder, provided,
that
the
Issuer or the Guarantor delivers such request in writing and, to the extent
applicable, includes the serial number or note number, principal amount, payee,
date of issue, maturity date, amount of interest (if any) and place of payment
of such Note.
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14.
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REPRESENTATIONS
AND WARRANTIES
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a.
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The
Issuer represents and warrants that: (i) it has the right, capacity
and
authority to enter into this Agreement; and (ii) it will comply with
all
of its obligations and duties under this Agreement. The Issuer further
represents and agrees that each Note issued and distributed upon
its
instruction pursuant to this Agreement shall constitute the Issuer’s
representation and warranty to JPMorgan that such Note is a legal,
valid
and binding obligation of the Issuer, and that such Note is being
issued
in a transaction which is exempt from registration under the Securities
Act of 1933, as amended, and any applicable state securities
law.
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b.
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The
Guarantor represents and warrants that: (i) it has the right, capacity
and
authority to enter into this Agreement and to execute and deliver
its
guaranty of the Notes; and (ii) it will comply with all of its obligations
and duties under this Agreement. The Guarantor further represents
and
agrees that its guaranty of each Note issued and distributed pursuant
to
this Agreement shall constitute the legal, valid and binding obligation
of
the Guarantor and shall be exempt from registration under the Securities
Act of 1933, as amended, and any applicable state securities
law.
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15.
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DISCLAIMERS
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Neither
JPMorgan nor its directors, officers, employees or agents shall be liable for
any act or omission under this Agreement except in the case of gross negligence
or willful misconduct. IN NO EVENT SHALL CHASE BE LIABLE FOR SPECIAL, INDIRECT
OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND WHATSOEVER (INCLUDING BUT NOT
LIMITED TO LOST PROFITS), EVEN IF CHASE HAS BEEN ADVISED OF THE LIKELIHOOD
OF
SUCH LOSS OR DAMAGE AND REGARDLESS OF THE FORM OF ACTION. In no event shall
JPMorgan be considered negligent in consequence of complying with DTC’s rules,
regulations and procedures. The duties and obligations of JPMorgan, its
directors, officers, employees or agents shall be determined by the express
provisions of this Agreement and they shall not be liable except for the
performance of such duties and obligations as are specifically set forth herein
and no implied covenants shall be read into this Agreement against them. Neither
JPMorgan nor its directors, officers, employees or agents shall be required
to
ascertain whether any issuance or sale of any Notes (or any amendment or
termination of this Agreement) has been duly authorized or is in compliance
with
any other agreement to which the Issuer or the Guarantor is a party (whether
or
not JPMorgan is also a party to such agreement).
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16.
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INDEMNIFICATION
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The
Issuer and the Guarantor jointly and severally agree to indemnify, defend and
hold harmless JPMorgan, its directors, officers, employees and agents
(collectively, “indemnitees”) from and against any and all liabilities, claims,
losses, damages, penalties, costs and expenses (including attorneys’ fees and
disbursements) suffered or incurred by or asserted or assessed against any
indemnitee arising in respect of this Agreement, except for any such liability,
claim, loss, damage, penalty, cost or expense resulting from the gross
negligence or willful misconduct of JPMorgan, its directors, officers, employees
and agents. This indemnity will survive the termination of this
Agreement.
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17.
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OPINION
OF COUNSEL
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The
Issuer and the Guarantor shall deliver to JPMorgan all documents it may
reasonably request relating to the existence of the Issuer and authority of
the
Issuer for this Agreement, including, without limitation, an opinion of counsel,
substantially in the form of Exhibit C hereto.
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18.
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NOTICES
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All
notices, confirmations and other communications hereunder shall (except to
the
extent otherwise expressly provided) be in writing and shall be sent by
first-class mail, postage prepaid, by telecopier or by hand, addressed as
follows, or to such other address as the party receiving such notice shall
have
previously specified to the party sending such notice:
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If
to the Issuer:
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Xxxxxxxxx-Xxxx
Global Holding Company Limited
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Attention:
Corporate Treasury
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000-X
Xxxxx Xxxxxx
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Xxxxxxxx,
XX 00000
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Telephone:
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(000)
000-0000
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Facsimile:
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(000)
000-0000
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If
to the Guarantor:
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Xxxxxxxxx-Xxxx
Company Limited
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Attention:
Corporate Treasury
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000-X
Xxxxx Xxxxxx
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Xxxxxxxx,
XX 00000
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Telephone:
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(000)
000-0000
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Facsimile:
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(000)
000-0000
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If
to JPMorgan concerning the daily issuance and redemption of
Notes:
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Attention:
Money Market Operations
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000
X. Xxxxxx 00xx Xxxxx
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Xxxxxxx,
XX 00000
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Telephone:
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(000)
000-0000/ (000) 000-0000
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Facsimile:
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(000)
000-0000
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All
other:
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Attention:
Commercial Paper JPM
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0
Xxx Xxxx Xxxxx, 00xx Xxxxx
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Xxx
Xxxx XX 00000-0000
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Telephone:
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(000)
000-0000
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Facsimile:
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(000)
000-0000
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19.
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COMPENSATION
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The
Issuer shall pay compensation for services pursuant to this Agreement in
accordance with the pricing schedules furnished by JPMorgan to the Issuer from
time to time and upon such payment terms as the parties shall determine. The
Issuer shall also reimburse JPMorgan for any fees and charges imposed by DTC
with respect to services provided in connection with the Book-entry
Notes.
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20.
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BENEFIT
OF AGREEMENT
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This
Agreement is solely for the benefit of the parties hereto and no other person
shall acquire or have any right under or by virtue hereof.
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21.
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TERMINATION
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This
Agreement may be terminated at any time by either party by written notice to
the
other, but such termination shall not affect the respective liabilities of
the
parties hereunder arising prior to such termination.
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22.
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FORCE
MAJEURE
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In
no
event shall JPMorgan be liable for any failure or delay in the performance
of
its obligations hereunder because of circumstances beyond JPMorgan’s control,
including, but not limited to, acts of God, flood, war (whether declared or
undeclared), terrorism, fire, riot, strikes or work stoppages for any reason,
embargo, government action, including any laws, ordinances, regulations or
the
like which restrict or prohibit the providing of the services contemplated
by
this Agreement, inability to obtain material, equipment, or communications
or
computer facilities, or the failure of equipment or interruption of
communications or computer facilities, and other causes beyond JPMorgan’s
control whether or not of the same class or kind as specifically named
above.
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23.
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ENTIRE
AGREEMENT
|
This
Agreement, together with the exhibits attached hereto, constitutes the entire
agreement among JPMorgan, the Issuer and the Guarantor with respect to the
subject matter hereof and supersedes in all respects all prior proposals,
negotiations, communications, discussions and agreements between the parties
concerning the subject matter of this Agreement.
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24.
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WAIVERS
AND AMENDMENTS
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No
failure or delay on the part of any party in exercising any power or right
under
this Agreement shall operate as a waiver, nor does any single or partial
exercise of any power or right preclude any other or further exercise, or the
exercise of any other power or right. Any waiver shall be effective only in
the
specific instance and for the purpose for which it is given. No amendment,
modification or waiver of any provision of this Agreement shall be effective
unless the same shall be in writing and signed by each party
hereto.
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25.
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BUSINESS
DAY
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Whenever
any payment to be made hereunder shall be due on a day which is not a business
day for JPMorgan, then such payment shall be made on JPMorgan’s next succeeding
business day.
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26.
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COUNTERPARTS
|
This
Agreement may be executed in counterparts, each of which shall be deemed an
original and such counterparts together shall constitute but one
instrument.
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27.
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HEADINGS
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The
headings in this Agreement are for purposes of reference only and shall not
in
any way limit or otherwise affect the meaning or interpretation of any of the
terms of this Agreement.
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28.
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ACCOUNT
CONDITIONS
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Each
Account shall be subject to JPMorgan’s account conditions, as in effect from
time to time.
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29.
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GOVERNING
LAW
|
This
Agreement and the Notes shall be governed by and construed in accordance with
the internal laws of the State of New York, without regard to the conflict
of
laws provisions thereof.
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30.
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JURISDICTION
AND VENUE
|
Each
party hereby irrevocably and unconditionally submits to the jurisdiction of
the
United States District Court for the Southern District of New York and any
New
York State court located in the Borough of Manhattan in New York City and of
any
appellate court from any thereof for the purposes of any legal suit, action
or
proceeding arising out of or relating to this Agreement (a “Proceeding”).
Each
party hereby irrevocably agrees that all claims in respect of any Proceeding
may
be heard and determined in such Federal or New York State court and irrevocably
waives, to the fullest extent it may effectively do so, any objection it may
now
or hereafter have to the laying of venue of any Proceeding in any of the
aforementioned courts and the defense of an inconvenient forum to the
maintenance of any Proceeding.
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31.
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AGENT
FOR SERVICE OR PROCESS
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The
Issuer and the Guarantor, for the benefit of JPMorgan and the holders from
time
to time of the Notes, hereby irrevocably appoint Xxxxxxxxx-Xxxx Company, with
offices on the date hereof located at 000 Xxxxxxxx Xxxxx Xxxx, Xxxxxxxx, XX
00000 as their agent (the “Authorized
Agent”)
upon
which process may be served in any Proceeding and hereby agree that service
of
process upon the Authorized Agent, by mail or delivery, shall be deemed in
every
respect effective service of process upon them in any such Proceeding. The
Issuer and the Guarantor agree to take any and all action, including, but not
limited to, the execution and filing of all such documents and instruments,
as
may be necessary to effect and continue the appointment by them of the
Authorized Agent in full force and effect so long as any of the Notes shall
be
outstanding. Nothing herein contained shall, however, in any manner limit the
rights of JPMorgan or the holders of the Notes to serve process in any other
manner permitted by applicable law.
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32.
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WAIVER
OF TRIAL BY JURY
|
EACH
PARTY HEREBY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT
OF
OR RELATING TO ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
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33.
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WAIVER
OF IMMUNITY
|
The
Issuer irrevocably waives, to the fullest extent permitted by applicable law,
with respect to itself and its revenues and assets (irrespective of their use
or
intended use), all immunity on the grounds of sovereign immunity or other
similar grounds from (i) suit, (ii) jurisdiction of any court, (iii) relief
by
way of injunction or order for specific performance or for recovery of property,
(iv) attachment of its assets (whether before or after judgment) and (v)
execution or enforcement of any judgment to which it or its revenues or assets
might otherwise be entitled in any Proceeding.
The
Guarantor irrevocably waives, to the fullest extent permitted by applicable
law,
with respect to itself and its revenues and assets (irrespective of their use
or
intended use), all immunity on the grounds of sovereign immunity or other
similar grounds from (i) suit, (ii) jurisdiction of any court, (iii) relief
by
way of injunction or order for specific performance or for recovery of property,
(iv) attachment of its assets (whether before or after judgment) and (v)
execution or enforcement of any judgment to which it or its revenues or assets
might otherwise be entitled in any Proceeding.
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34.
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WITHHOLDING
TAXES
|
The
Issuer and the Guarantor represent and warrant that there is no withholding
or
other tax, assessment or governmental charge imposed by Bermuda or any political
subdivision thereof or taxing authority therein on account of the Notes, this
Agreement or any payments thereon or hereunder. The Issuer and the Guarantor
agree that in the event that any such tax, assessment or change shall hereafter
become applicable, they shall promptly notify JPMorgan in writing. All payments
made by the Issuer and the Guarantor in respect of the Notes to the holder
of
any of the Notes or JPMorgan (collectively referred to as a "Payment Recipient")
shall be paid without set-off or counterclaim and free and clear of, and without
deduction or withholding for or on account of, any present or future tax,
assessment or other governmental charge or any interest or penalty thereon
imposed, levied, collected, assessed or required to be deducted, withheld or
paid by or for the account of Bermuda only or any taxing authority or political
subdivision thereof or therein (collectively a "Tax") unless the Issuer or
the
Guarantor, as the case may be, is required to withhold or deduct Tax by law
or
by the interpretation or administration thereof. If any such Tax is required
by
law to be withheld or deducted from any such payment, the Issuer and the
Guarantor shall pay such additional amounts ("Additional Amounts") as may be
necessary so that the net amount received by a Payment Recipient after such
withholding or deduction will equal the amount that such Payment Recipient
would
have received if such Tax had not been required to be withheld or deducted;
provided
that the
Issuer and the Guarantor shall not be required to pay any such additional amount
on account of any Tax that would not have been so imposed but for the existence
of any present or former personal or business connection between the person
entitled to such payment and Bermuda other than the mere receipt of such payment
or the ownership or holding of such Note.
|
35.
|
JUDGMENT
CURRENCY
|
The
obligation of the Issuer or the Guarantor to make payment in lawful currency
of
the United States of America (“Dollars”)
of any
and all amounts due hereunder or under the Notes shall not be discharged or
satisfied by any tender or any recovery pursuant to any judgment in any currency
other than Dollars, except to the extent that such tender or recovery shall
result in the actual receipt by JPMorgan in New York or the holders of the
Notes
of the full amount of Dollars payable hereunder or under the Notes, and shall
be
enforceable as an alternative or additional cause of action for the purpose
of
recovering in Dollars the amount, if any, by which such actual receipt shall
fall short of the full amount of Dollars so paid.
9
|
36.
|
GUARANTY
PROVISIONS
|
In
consideration of the services provided by JPMorgan under this Agreement, the
Guarantor hereby absolutely, unconditionally and irrevocably guarantees (as
primary obligor and not merely as surety) the due and punctual payment, when
and
as the same shall become due and payable, of each and every obligation of the
Issuer hereunder (each of the foregoing being an “Obligation”
and,
collectively, the “Obligations”)
at the
time and place and otherwise in accordance with the terms of this Agreement
and
the Notes, irrespective of (i) the validity, binding effect, legality,
enforceability or modification to, or amendment or waiver of, or compliance
with, the Notes or this Agreement, (ii) whether the Notes or this Agreement
shall have been duly executed by the respective parties thereto, (iii) any
change in the existence or structure of, or the bankruptcy or insolvency of,
the
Issuer, (iv) the absence of any action to enforce any Obligation or the Notes
or
this Agreement or any collateral security or other guaranty thereof, (v) any
extension, renewal, settlement, compromise, waiver or release in respect of
any
Obligation, the Notes or this Agreement, (vi) the existence of any claim,
set-off, counterclaim or other right that the Guarantor may have against the
Issuer, the noteholders or JPMorgan, or (vii) any other circumstance that might
otherwise constitute a legal or equitable discharge or defense of the Guarantor.
The Guarantor hereby agrees that upon default in the payment when due of any
Obligation it will forthwith cause the payment of each and every Obligation
to
be made punctually to JPMorgan or the holder of a Note, as the case may be,
when
and as the same shall become due and payable, and as if such payment were made
by the Issuer. The Guarantor hereby expressly waives presentment, demand,
protest or notice of any kind whatsoever, as well as any requirement that the
noteholders, or JPMorgan on behalf of the noteholders, file claims in the event
of receivership or bankruptcy of the Issuer, or exhaust any right to take any
action against the Issuer or with respect to any collateral at any time securing
the Obligations or any other guaranty thereof; and the Guarantor hereby consents
to any and all extensions of time of payment of any or all of the Obligations
and to the release of any such collateral or other guaranty. This guaranty
is a
guaranty of payment and not of collection merely and shall be a continuing
guaranty and, as such, shall remain operative and in full force and effect
until
all Obligations shall have been paid and actually received in full by the party
to whom any such Obligation is due. If at any time any payment of any Obligation
is rescinded or must otherwise be restored or returned upon the insolvency,
bankruptcy, reorganization, dissolution or liquidation of the Issuer (or the
appointment of a trustee, receiver, intervenor or conservator or similar
official for the Issuer or any substantial part of its assets, the Guarantor’s
obligations hereunder with respect to such payment shall be reinstated at such
time as though such payment had not been made. The Guarantor hereby irrevocably
agrees that it will not be entitled to enforce any right or remedy arising
out
of any right of subrogation that it may have or be entitled to, by operation
of
law or otherwise, as a result of payments by such Guarantor hereunder, until
all
Obligations have been paid and actually received in full by the party to whom
any such Obligation is due.
[SIGNATURE
PAGE FOLLOWS]
10
IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be executed on their behalf by
duly
authorized officers as of the day and year first-above written.
|
JPMORGAN
CHASE BANK,
|
||||||
|
NATIONAL
ASSOCIATON
|
||||||
|
Xxxxxxxxx-Xxxx
Global Holding Company Limited,
as
Issuer
|
||||||
|
By:
|
/s/
Xxxxxx X. Xxxxxxx
|
|||||
|
Name: Xxxxxx
X. Xxxxxxx
|
By:
|
|
/s/
Xxxxxxx X. Xxxxxxx
|
|||
|
Title: Assistant
Vice President
|
Name:
|
Xxxxxxx
X. Xxxxxxx
|
||||
|
Date: May
22, 2008
|
Title:
|
Vice
President & Treasurer
|
||||
|
Date:
|
May
22, 2008
|
|||||
|
Xxxxxxxxx-Xxxx
Company Limited, as Guarantor
|
||||||
|
By:
|
|
/s/
Xxxxxxx X. Xxxxxxx
|
||||
|
Name:
|
Xxxxxxx
X. Xxxxxxx
|
|||||
|
Title:
|
Vice
President & Treasurer
|
|||||
|
Date:
|
May
22, 2008
|
|||||
EXHIBIT
A
[FORM
OF MASTER NOTE]
EXHIBIT
B
[LETTER
OF REPRESENTATIONS]
