1
EXHIBIT 4(b)(2)
[FORM OF] GUARANTEE AGREEMENT
[FORM OF] GUARANTEE AGREEMENT (this "Guarantee
Agreement"), dated as of [ ], 199[ ], executed and delivered
by X.X. Xxxxxx & Co. Incorporated, a Delaware corporation
("X.X. Xxxxxx") and First Trust of New York, National
Association, as the initial Guarantee Trustee (as defined
below) for the benefit of the Holders (as defined below) from
time to time of the Preferred Securities (as defined below) of
X.X. Xxxxxx Index Funding Company I, a Delaware statutory
business trust (the "Trust").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust
(as amended from time to time, the "Declaration") dated as of October 10, 1997
among the trustees of the Trust, X.X. Xxxxxx, as sponsor (the "Sponsor"), and
the Holders from time to time of undivided beneficial interests in certain
assets of the Trust, the Trust intends to issue and sell from time to time, in
one or more series, up to $700,000,000 aggregate principal amount of its
Commodity-Indexed Preferred Securities (the "Preferred Securities") and related
common securities (the "Common Securities"), in each case representing undivided
beneficial interests in a Related Note (as defined below) associated with such
series and having such rights, preferences, privileges, limitations and
restrictions as are set forth in a declaration supplement (a "Declaration
Supplement") by the Sponsor in the form of Exhibit B to the Declaration
providing for the issue of such series;
WHEREAS, the Trust, on behalf of each Series of Securities (as
defined below), will purchase Related Notes (as defined below) 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 ("Xxxxxx Guaranty"), with the
proceeds from the issuance and sale of each series of Preferred Securities and
related Common Securities; and
WHEREAS, X.X. Xxxxxx desires hereby to irrevocably and
unconditionally agree to the extent set forth herein to pay to the Holders the
Guarantee Payments (as defined below)
2
2
and to make certain other payments on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of
the Preferred Securities, which purchase X.X. Xxxxxx hereby agrees shall benefit
X.X. Xxxxxx and which purchase X.X. Xxxxxx acknowledges will be made in reliance
upon the execution and delivery of this guarantee, X.X. Xxxxxx executes and
delivers this Guarantee Agreement for the benefit of the Holders.
ARTICLE I
Definitions
(a) Capitalized terms used in this Guarantee Agreement but not
defined in the preamble above have the respective meanings assigned to them in
this Article I.
(b) A term defined anywhere in this Guarantee Agreement has the same
meaning throughout.
(c) All references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time.
(d) All references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified.
(e) A term defined in the Trust Indenture Act has the same meaning
when used in this Guarantee Agreement unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires.
(f) A reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act of 1933, as amended, or any successor rule thereunder.
"Commission" means the Securities and Exchange Commission.
"Common Securities" means, with respect to a Series of Securities,
the securities representing undivided beneficial interests in a Related Note
associated with such Series of Securities and held by the Property Trustee for
3
3
the benefit of the Holders of such Series of Securities, and having the terms
set forth in a Declaration Supplement in the form of Exhibit B to the
Declaration.
"Covered Person" means any Holder of Preferred Securities.
"Distributions" means the periodic distributions and other payments
payable to Holders of Preferred Securities in accordance with the terms of the
Preferred Securities set forth in a Declaration Supplement in the form of
Exhibit B to the Declaration.
"Event of Default" means a default by X.X. Xxxxxx on any of its
payment or other obligations under this Guarantee Agreement.
"Guarantee Payments" means, with respect to Preferred Securities of
any series, the following payments, without duplication, to the extent not paid
by the Trust: (i) any accumulated and unpaid distributions which have been
theretofore declared on the Preferred Securities of such series, to the extent
Xxxxxx Guaranty has made a corresponding payment on the relevant Related Note,
out of funds legally available therefor, (ii) the Preferred Redemption Price
(including all accumulated and unpaid distributions), to the extent Xxxxxx
Guaranty has made a corresponding payment on the relevant Related Note, payable
out of funds legally available therefor with respect to any Preferred Securities
of such series called for redemption upon redemption thereof and (iii) upon the
liquidation of the Trust, the lesser of (a) the Liquidation Distribution (as
defined below) with respect to such series and (b) the amount of the assets of
the Trust consisting of the relevant Related Note and the proceeds thereof,
legally available for distribution to Holders of Preferred Securities of such
series in liquidation.
"Guarantee Trustee" means First Trust of New York, National
Association until a Successor Guarantee Trustee has been appointed and accepted
such appointment pursuant to the terms of this Guarantee Agreement and
thereafter means each such Successor Guarantee Trustee.
"Holder" means any Person from time to time holding any Preferred
Securities of any series; provided, however, that in determining whether the
Holders of the requisite percentage of Preferred Securities have given any
4
4
request, notice, consent or waiver hereunder, "Holder" shall not include X.X.
Xxxxxx or any entity directly or indirectly controlling or controlled by or
under direct or indirect common control with X.X. Xxxxxx.
"Indemnified Person" means the Guarantee Trustee, any Affiliate of
the Guarantee Trustee, and any officers, directors, shareholders, members,
partners, employees, representatives or agents of the Guarantee Trustee.
"Liquidation Distribution" means, with respect to Preferred
Securities of any series, the aggregate Principal Amount of Preferred Securities
of such series and all accumulated and unpaid distributions (whether or not
declared) with respect to such Preferred Securities to but excluding the date of
payment.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Redemption Price" means, with respect to Preferred
Securities of any series, the aggregate Principal Amount of all Preferred
Securities of such series plus accumulated and unpaid distributions (whether or
not declared) with respect to such series to but excluding the date of
redemption.
"Preferred Securities" has the meaning set forth in the first
WHEREAS clause above.
"Principal Amount" means, at any time with respect to any Preferred
Security of any series, the Redemption Value, the applicable Early Redemption
Value or the stated liquidation preference thereof, as applicable, as determined
in accordance with the Declaration Supplement creating such Preferred
Securities.
"Property Trustee" means the Person acting as Property Trustee under
the Declaration.
"Related Note" means any obligation or obligations of Xxxxxx
Guaranty in which the proceeds from the issuance of Preferred Securities of any
series and related Common Securities of such series are invested.
5
5
"Responsible Officer" means, with respect to the Guarantee Trustee,
the chairman of the board of directors, the president, any vice-president, any
assistant vice-president, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, any trust officer or assistant trust officer or any
other officer of the Guarantee Trustee customarily performing functions similar
to those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer's knowledge of and familiarity with
the particular subject.
"Series of Securities" means any series of Preferred Securities and
related Common Securities issued under the Declaration or a Declaration
Supplement.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as a Guarantee Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II
Trust Indenture Act
SECTION 2.01. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the Trust Indenture
Act that are required to be part of this Guarantee Agreement and shall, to the
extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
(c) The application of the Trust Indenture Act to this Guarantee
Agreement shall not affect the nature of the Preferred Securities as equity
securities representing undivided beneficial interests in the relevant Related
Note held by the Trust.
6
6
SECTION 2.02. Lists of Holders of Preferred Securities. (a) X.X.
Xxxxxx shall provide the Guarantee Trustee with such information as is required
under Section 312(a) of the Trust Indenture Act at the times and in the manner
provided in Section 312(a).
(b) The Guarantee Trustee shall comply with its obligations under
Sections 310(b), 311 and 312(b) of the Trust Indenture Act.
SECTION 2.03. Reports by the Guarantee Trustee. Within 60 days after
May 15 of each year, the Guarantee Trustee shall provide to the Holders of the
Preferred Securities such reports as are required by Section 313 of the Trust
Indenture Act, if any, in the form, in the manner and at the times provided by
Section 313 of the Trust Indenture Act. The Guarantee Trustee shall also comply
with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.04. Periodic Reports to the Guarantee Trustee. X.X. Xxxxxx
shall provide to the Guarantee Trustee, the Commission and the Holders of the
Preferred Securities, as applicable, such documents, reports and information as
required by Section 314(a)(1)-(3) (if any) of the Trust Indenture Act and the
compliance certificates required by Section 314(a)(4) and (c) of the Trust
Indenture Act, any such certificates to be provided in the form, in the manner
and at the times required by Section 314(a)(4) and (c) of the Trust Indenture
Act (provided that any certificate to be provided pursuant to Section 314(a)(4)
of the Trust Indenture Act shall be provided within 120 days of the end of each
fiscal year of the Trust).
SECTION 2.05. Evidence of Compliance with Conditions Precedent. X.X.
Xxxxxx shall provide the Guarantee Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Guarantee Agreement which
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given pursuant to Section 314(c)
shall comply with Section 314(e) of the Trust Indenture Act.
SECTION 2.06. Events of Default; Waiver. (a) Subject to Section
2.06(b), Holders of Preferred Securities of any series may by vote of at least a
majority in Principal Amount of the Preferred Securities of such series, (A)
direct the time, method and place of conducting
7
7
any proceeding for any remedy available to the Guarantee Trustee, or exercising
any trust or power conferred upon by the Guarantee Trustee, in either case with
respect to such series or (B) on behalf of the Holders of all Preferred
Securities of such series waive any past Event of Default with respect to such
series and its consequences. Upon such waiver, any such default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Guarantee Agreement, but no such waiver shall
extend to any subsequent or other default or Event of Default (with respect to
such series or any other series) or impair any right consequent thereon.
(b) The right of any Holder of Preferred Securities to receive
payment of the Guarantee Payments in accordance with this Guarantee Agreement,
or to institute suit for the enforcement of any such payment, shall not be
impaired without the consent of each such Holder.
SECTION 2.07. Disclosure of Information. The disclosure of
information as to the names and addresses of the Holders of the Preferred
Securities in accordance with Section 312 of the Trust Indenture Act, regardless
of the source from which such information was derived, shall not be deemed to be
a violation of any existing law, or any law hereafter enacted which does not
specifically refer to Section 312 of the Trust Indenture Act, nor shall the
Guarantee Trustee be held accountable by reason of mailing any material pursuant
to a request made under Section 312(b) of the Trust Indenture Act.
SECTION 2.08. Conflicting Interest. The Declaration shall be deemed
to be specifically described in this Guarantee Agreement for the purposes of
clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
8
8
ARTICLE III
Powers, Duties and Rights of Guarantee Trustee
SECTION 3.01. Powers and Duties of the Guarantee Trustee. (a) This
Guarantee Agreement shall be held by the Guarantee Trustee in trust for the
benefit of the Holders of the Preferred Securities. The Guarantee Trustee shall
not transfer its right, title and interest in this Guarantee Agreement to any
Person except a Successor Guarantee Trustee on acceptance by such Successor
Guarantee Trustee of its appointment to act as Guarantee Trustee or to a Holder
of Preferred Securities exercising his or her rights pursuant to Section 5.04.
The right, title and interest of the Guarantee Trustee to this Guarantee
Agreement shall vest automatically in each Person who may hereafter be appointed
as Guarantee Trustee in accordance with Article IV. Such vesting and cessation
of title shall be effective whether or not conveyancing documents have been
executed and delivered.
(b) If an Event of Default with respect to Preferred Securities of
any series occurs and is continuing, the Guarantee Trustee shall enforce this
Guarantee Agreement for the benefit of the Holders of such Preferred Securities.
(c) This Guarantee Agreement and all moneys received by the Property
Trustee hereunder in respect of the Guarantee Payments will not be subject to
any right, charge, security interest, lien or claim of any kind in favor of, or
for the benefit of the Guarantee Trustee or its agents or their creditors.
(d) The Guarantee Trustee shall, within 30 days after the occurrence
of an Event of Default with respect to Preferred Securities of any series,
transmit by mail, first class postage prepaid, to the holders of such Preferred
Securities, as their names and addresses appear upon the register, notice of all
Events of Default known to the Guarantee Trustee, unless such defaults shall
have been cured before the giving of such notice; provided, that, the Guarantee
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
and/or Responsible Officers, of the Guarantee Trustee in good faith determine
that the withholding of such notice is in the interests of the Holders of such
Preferred Securities. The Guarantee Trustee shall not be deemed to have
knowledge of any default except any default as to which
9
9
the Guarantee Trustee shall have received written notice or a Responsible
Officer charged with the administration of the Guarantee Agreement shall have
obtained written notice.
(e) The Guarantee Trustee shall not resign as a Trustee unless a
Successor Guarantee Trustee has been appointed and accepted that appointment in
accordance with Article IV.
SECTION 3.02. Certain Rights and Duties of the Guarantee Trustee.
(a) The Guarantee Trustee, before the occurrence of an Event of Default and
after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Guarantee Agreement, and no implied covenants shall be read into this Guarantee
Agreement against the Guarantee Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.06(a)), the
Guarantee Trustee shall exercise such of the rights and powers vested in it by
this Guarantee Agreement, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
this conduct of his or her own affairs.
(b) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent action, its
own negligent failure to act or its own wilful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have occurred;
(A) the duties and obligations of the Guarantee Trustee shall
be determined solely by the express provisions of this Guarantee
Agreement, and the Guarantee Trustee shall not be liable except for
the performance of such duties and obligations as are specifically
set forth in this Guarantee Agreement, and no implied covenants or
obligations shall be read into this Guarantee Agreement against the
Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
10
10
expressed therein, upon any certificates or opinions furnished to
the Guarantee Trustee and conforming to the requirements of this
Guarantee Agreement; but in the case of any such certificates or
opinions that by any provision hereof are specifically required to
be furnished to the Guarantee Trustee, the Guarantee Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Guarantee Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of Preferred Securities as provided herein
relating to the time, method and place of conducting any proceeding for
any remedy available to the Guarantee Trustee, or exercising any trust or
power conferred upon the Guarantee Trustee under this Guarantee Agreement;
and
(iv) no provision of this Guarantee Agreement shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of its duties or in the
exercise of any of its rights or powers, if it shall have reasonable
ground for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Guarantee Agreement or
adequate indemnity against such risk or liability is not reasonably
assured to it.
11
11
(c) Subject to the provisions of Section 3.02(a) and (b):
(i) whenever in the administration of this Guarantee Agreement, the
Guarantee Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder,
the Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and rely
upon a certificate, which shall comply with the provisions of Section
314(e) of the Trust Indenture Act, signed by any authorized officer of
X.X. Xxxxxx;
(ii) the Guarantee Trustee (A) may consult with counsel of its
choice (which may be counsel to X.X. Xxxxxx or any of its Affiliates and
may include any of its employees) selected by it in good faith and with
due care and the written advice or opinion of such counsel with respect to
legal matters shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon and in accordance with such advice and
opinion and (B) shall have the right at any time to seek instructions
concerning the administration of this Guarantee Agreement from any court
of competent jurisdiction;
(iii) the Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Guarantee Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed by it in good faith and with due care;
(iv) the Guarantee Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Guarantee Agreement at
the request or direction of any Holders of Preferred Securities, unless
such Holders shall have offered to the Guarantee Trustee reasonable
security and indemnity against the costs, expenses (including its
attorneys' fees and expenses) and liabilities that might be incurred by it
in complying with such request or direction; provided that nothing
contained in this clause (iv) shall relieve the Guarantee Trustee of the
obligation, upon the occurrence of an Event of Default (which has not
12
12
been cured or waived) to exercise such of the rights and powers vested in
it by this Guarantee Agreement, and to use the same degree of care and
skill in this exercise, as a prudent person would exercise or use under
the circumstances in the conduct of his or her own affairs; and
(v) any action taken by the Guarantee Trustee or its agents
hereunder shall bind the Holders of any affected series of Preferred
Securities and the signature of the Guarantee Trustee or its agents alone
shall be sufficient and effective to perform any such action; and no third
party shall be required to inquire as to the authority of the Guarantee
Trustee to so act, or as to its compliance with any of the terms and
provisions of this Guarantee Agreement, both of which shall be
conclusively evidenced by the Guarantee Trustee's or its agent's taking
such action.
SECTION 3.03. Not Responsible for Recitals or Issuance of Guarantee
Agreement. The recitals contained in this Guarantee Agreement shall be
taken as the statements of X.X. Xxxxxx and the Guarantee Trustee does not
assume any responsibility for their correctness. The Guarantee Trustee
makes no representations as to the validity or sufficiency of this
Guarantee Agreement.
ARTICLE IV
Guarantee Trustee
SECTION 4.01. Qualifications. (a) There shall at all times be a
Guarantee Trustee which shall:
(i) not be an Affiliate of X.X. Xxxxxx; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least $50,000,000, and subject to
supervision or examination by Federal, State, Territorial or District of
Columbia authority. If such corporation publishes reports of condition at
13
13
least annually, pursuant to law or to the requirements of the supervising
or examining authority referred to above, then for the purposes of this
Section 4.01(a)(ii), the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published.
If at any time the Guarantee Trustee shall cease to satisfy the
requirements of clauses (i)-(ii) above, the Guarantee Trustee shall immediately
resign in the manner and with the effect set out in Section 4.02. If the
Guarantee Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee and
X.X. Xxxxxx shall in all respects comply with the provisions of Section 310(b)
of the Trust Indenture Act.
SECTION 4.02. Appointment, Removal and Resignation of Guarantee
Trustee. (a) Subject to Section 4.02(b), the Guarantee Trustee may be appointed
or removed without cause at any time by X.X. Xxxxxx.
(b) The Guarantee Trustee shall not be removed in accordance with
Section 4.02(a) until a Successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 4.01(a) has been
appointed and has accepted such appointment by written instrument executed by
such Successor Guarantee Trustee and delivered to X.X. Xxxxxx and the Guarantee
Trustee being removed.
(c) The Guarantee Trustee appointed to office shall hold office
until his successor shall have been appointed or until its removal or
resignation.
(d) The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument (a "Resignation Request") in
writing signed by the Guarantee Trustee and delivered to X.X. Xxxxxx, which
resignation shall take effect upon such delivery or upon such later date as is
specified therein; provided, however, that no such resignation of the Guarantee
Trustee shall be effective until a Successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 4.01(a) has been
appointed and has accepted such appointment by instrument executed by such
Successor Guarantee Trustee and delivered to X.X. Xxxxxx and the resigning
Guarantee Trustee.
14
14
(e) If no Successor Guarantee Trustee shall have been appointed and
accepted appointed as provided in this Section 4.02 within 60 days after
delivery to X.X. Xxxxxx of a Resignation Request, the resigning Guarantee
Trustee may petition any court of competent jurisdiction for appointment of a
Successor Guarantee Trustee. Such court may thereupon after such notice, if any,
as it may deem proper and prescribe, appoint a Successor Guarantee Trustee.
ARTICLE V
Guarantee
SECTION 5.01. Guarantee. X.X. Xxxxxx irrevocably and unconditionally
agrees, to the extent set forth herein, to pay in full to the Holders of
Preferred Securities of each series the Guarantee Payments with respect to such
Preferred Securities, as and when due (except to the extent paid by the Trust),
regardless of any defense, right of set-off or counterclaim which the Trust may
have or assert. This Guarantee Agreement is continuing, irrevocable,
unconditional and absolute.
SECTION 5.02. Waiver of Notice. X.X. Xxxxxx hereby waives notice of
acceptance of this Guarantee Agreement 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 5.03. Obligations Not Affected. The obligations, covenants,
agreements and duties of X.X. Xxxxxx under this Guarantee Agreement 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 the Trust of any express or implied
agreement, covenant, term or condition relating to the Preferred
Securities of any series to be performed or observed by the Trust;
(b) the extension of time for the payment by the Trust of all or any
portion of the distributions, Preferred Redemption Price, liquidation
distributions
15
15
or any other sums payable under the terms of the Preferred Securities of
any series or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Preferred
Securities of any series;
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Preferred
Securities of any series, or any action on the part of the Trust granting
indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Trust
or any of the assets of the Trust;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities of any series;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstances whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.03 that the obligations of X.X. Xxxxxx
hereunder shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or obtain consent
of, X.X. Xxxxxx with respect to the happening of any of the foregoing.
SECTION 5.04. Enforcement of Guarantee Agreement. X.X. Xxxxxx and
the Guarantee Trustee expressly acknowledge that (i) this Guarantee Agreement
will be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) Holders representing not less than a
majority in Principal Amount of the Preferred Securities of any series have the
right to direct the time, method and place of conducting any proceeding for any
remedy available in respect of this
16
16
Guarantee Agreement with respect to such Preferred Securities including the
giving of directions to the Guarantee Trustee, or exercising any trust or other
power conferred upon the Guarantee Trustee under this Guarantee Agreement, and
(iv) if the Guarantee Trustee fails to enforce this Guarantee Agreement with
respect to Preferred Securities of any series, any Holder of such Preferred
Securities may institute a legal proceeding directly against X.X. Xxxxxx to
enforce its rights under this Guarantee Agreement, without first instituting a
legal proceeding against the Trust, the Guarantee Trustee, or any other Person.
SECTION 5.05. Guarantee of Payment. This is a guarantee of payment
and not merely of collection. This Guarantee Agreement will not be discharged
except by payment of the Guarantee Payments in full (without duplication of
amounts theretofore paid by the Trust).
SECTION 5.06. Subrogation. X.X. Xxxxxx shall be subrogated to all
(if any) rights of the Holders against the Trust in respect of any amounts paid
to the Holders by X.X. Xxxxxx under this Guarantee Agreement and the Trust shall
not be required to make payment to the Holders of any amount of Guarantee
Payments in respect of which payment has theretofore been made by X.X. Xxxxxx
pursuant to Section 5.01 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 Guarantee Agreement, if, at the time of any such payment, any amounts are
due and unpaid under this Guarantee Agreement. 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 Holders for application to the Guarantee Payments then
due hereunder, if any, or to offset payments due to the Holders by the Trust.
SECTION 5.07. Independent Obligations. X.X. Xxxxxx acknowledges that
its obligations hereunder are independent of the obligations of the Trust with
respect to the Preferred Securities and that X.X. Xxxxxx shall be liable as
principal and sole debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.03 hereof.
17
17
ARTICLE VI
Limitation of Transactions; Subordination
SECTION 6.01. Limitation of Transactions. So long as any Preferred
Securities of any series remain outstanding, X.X. Xxxxxx shall: (i) not cause or
permit any Common Securities to be transferred; (ii) maintain 100% ownership of
all outstanding securities of each series of the Trust other than the Preferred
Securities of any series; (iii) not voluntarily dissolve, wind up, liquidate or
terminate the Trust; (iv) not incur or permit to exist any indebtedness of the
Trust; and (v) not take any actions inconsistent with the treatment of the Trust
as a grantor trust for United States Federal income tax purposes. So long as any
Preferred Securities remain outstanding, X.X. Xxxxxx will not declare or pay
dividends on, or redeem, purchase, acquire or make a distribution or liquidation
payment with respect to, any of its common stock or preferred stock or make any
Guarantee Payment with respect thereto if at such time (i) X.X. Xxxxxx shall be
in default with respect to its Guarantee Payments or other payment obligations
hereunder or (ii) there shall have occurred any event of default under the
Declaration; provided, however, that the foregoing restrictions shall not apply
to (a) dividends, redemptions, purchases, acquisitions, distributions or
payments made by X.X. Xxxxxx by way of issuance of shares of its capital stock,
(b) payments of accrued dividends by X.X. Xxxxxx upon the redemption, exchange
or conversion of any preferred stock of X.X. Xxxxxx as may be outstanding from
time to time in accordance with the terms of such preferred stock, (c) cash
payments made by X.X. Xxxxxx in lieu of delivering fractional shares upon the
redemption, exchange or conversion of any preferred stock of X.X. Xxxxxx as may
be outstanding from time to time in accordance with the terms of such preferred
stock, (d) repurchases, redemptions or other acquisitions of shares of capital
stock of X.X. Xxxxxx in connection with any employment contract, benefit plan or
other similar arrangement with or for the benefit of employees, officers,
directors of consultants, or (e) any declaration of a dividend in connection
with the implementation of a stockholders' rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of such
rights pursuant thereto.
18
18
SECTION 6.02. Subordination. This Guarantee Agreement 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. X.X.
Xxxxxx'x obligations under this Guarantee Agreement will rank pari passu with
respect to obligations under other guarantee agreements which it may enter into
from time to time to the extent that such agreements shall be entered into in
substantially the form hereof and provided for comparable guarantees by X.X.
Xxxxxx of payment on other preferred securities issued by the Trust or any
similar trust sponsored by X.X. Xxxxxx.
ARTICLE VII
Termination
SECTION 7.01. This Guarantee Agreement shall terminate and be of no
further force and effect as to Preferred Securities of any series upon full
payment of the Preferred Redemption Price of such series, and shall terminate
completely upon full payment of the amounts payable to Holders upon liquidation
of the Trust; provided, however, that this Guarantee Agreement shall continue to
be effective or shall be reinstated, as the case may be, if at any time any
Holder must restore payment of any sums paid under the Preferred Securities of
such series or under this Guarantee Agreement for any reason whatsoever. X.X.
Xxxxxx agrees to indemnify each Holder and hold it harmless against any loss it
may suffer in such circumstances.
ARTICLE VIII
Limitation of Liability; Indemnification
SECTION 8.01. Exculpation. (a) No Indemnified Person shall be
liable, responsible or accountable in damages or otherwise to X.X. Xxxxxx or any
Covered Person for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith and in a
manner such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Guarantee Agreement or by
law, except that an Indemnified Person shall
19
19
be liable for any such loss, damage or claim incurred by reason of such
Indemnified Person's negligence or wilful misconduct with respect to such acts
or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of X.X. Xxxxxx and upon such information, opinions,
reports or statements presented to X.X. Xxxxxx by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of X.X. Xxxxxx, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amounts of assets from
which Distributions to Holders of Preferred Securities might properly be paid.
SECTION 8.02. Indemnification. (a) To the fullest extent permitted
by applicable law, X.X. Xxxxxx shall indemnify and hold harmless each
Indemnified Person from and against any loss, damage or claim incurred by such
Indemnified Person by reason of any act or omission performed or omitted by such
Indemnified Person in good faith and in a manner such Indemnified Person
reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Guarantee Agreement, except that no Indemnified
Person shall be entitled to be indemnified in respect of any loss, damage or
claim incurred by such Indemnified Person by reason of negligence or wilful
misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by an Indemnified Person in defending any claim,
demand, action, suit or proceeding shall, from time to time, be advanced by X.X.
Xxxxxx prior to the final disposition of such claim, demand, action, suit or
proceeding upon receipt by X.X. Xxxxxx of an undertaking by or on behalf of the
Indemnified Person to repay such amount if it shall be determined that the
Indemnified Person is not entitled to be indemnified as authorized in Section
8.02(a).
ARTICLE IX
Miscellaneous
20
20
SECTION 9.01. Successors and Assigns. All guarantees and agreements
contained in this Guarantee Agreement shall bind the successors, assigns,
receivers, trustees and representatives of X.X. Xxxxxx and shall inure to the
benefit of the Holders of the Preferred Securities then outstanding. X.X. Xxxxxx
shall not assign its obligations hereunder without the prior approval of Holders
of not less than a majority in Principal Amount of all Preferred Securities of
all series then outstanding voting as a single class.
SECTION 9.02. Amendments. Except with respect to any changes or
waivers which do not adversely affect the rights of Holders (in which case no
vote will be required), this Guarantee Agreement may only be amended or waived
by instrument in writing signed by X.X. Xxxxxx and the Guarantee Trustee with
the prior approval of the Holders of not less than a majority in Principal
Amount of all Preferred Securities of each affected series then outstanding
voting as a single class. The provisions of Section 12.02 of the Declaration
concerning meetings of Holders shall apply to the giving of such approval.
SECTION 9.03. Notices. 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:
(a) if given to X.X. Xxxxxx, to the address set forth below or such
other address as X.X. Xxxxxx may give notice of to the Holders:
X.X. Xxxxxx & Co. Incorporated
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile No.: (000) 000-0000
Attention: Assistant Secretary
21
21
(b) if given to the Guarantee Trustee, to the address set forth
below or such other address as the Guarantee Trustee may give notice to
the Holders:
First Trust of New York, National Association
000 Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust Administration
(c) if given to any Holder of Preferred Securities of any series, at
the address set forth on the books and records of the Trust relating to
such series.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 9.04. Genders. The masculine, feminine and neuter genders
used herein shall include the masculine, feminine and neuter genders.
SECTION 9.05. Benefit. This Guarantee Agreement is solely for the
benefit of the Holders and, subject to Section 3.01(a), is not separately
transferable from the Preferred Securities.
22
22
SECTION 9.06. Governing Law. THIS GUARANTEE AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS).
SECTION 9.07. Counterparts. This Guarantee Agreement may be executed
in counterparts, each of which shall be an original; but such counterparts shall
together constitute one and the same instrument.
[SECTION 9.08. Exercise of Overallotment Option. If and to the
extent that any Preferred Securities are issued by the Trust upon exercise of
the overallotment option referred to the third WHEREAS clause, X.X. Xxxxxx
agrees to give prompt notice thereof to the Guarantee Trustee but the failure to
give such notice shall not relieve X.X. Xxxxxx of any of its obligations
hereunder.]
IN WITNESS WHEREOF, this Guarantee Agreement is executed as of the
day and year first above written.
X.X. XXXXXX & CO.
INCORPORATED,
By
-------------------------------------
Name:
Title:
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION, as
Guarantee Trustee,
By
-------------------------------------
Name:
Title:
00
XXXXX XX XXX XXXX )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this [ ] day of
[ ], 199_, personally appeared of X.X. Xxxxxx & Co.
Incorporated, known to me (or proved to me by introduction upon the oath of a
person known to me) to be the person and officer whose name is subscribed to the
foregoing instrument, and acknowledged to me that he/she executed the same as
the act of such trust for the purposes and consideration herein expressed and in
the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS DAY OF
[ ], 199_.
{SEAL}
________________________________
NOTARY PUBLIC, STATE OF NEW YORK
Print Name: ____________________
Commission Expires: ____________
00
XXXXX XX XXX XXXX )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this [ ] day of
[ ], 199_ , personally appeared [ ] of First Trust of New York, National
Association, known to me (or proved to me by introduction upon the oath of a
person known to me) to be the person and officer whose name is subscribed to the
foregoing instrument, and acknowledged to me that he/she executed the same as
the act of such trust for the purposes and consideration herein expressed and in
the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS 31st DAY OF
[ ], 199_.
{SEAL}
________________________________
NOTARY PUBLIC, STATE OF NEW YORK
Print Name: ____________________
Commission Expires: ____________
