Exhibit 99.M
EXHIBIT M
Guarantee of SSBH
EXECUTION VERSION
GUARANTEE, dated as of January 4, 2001 (this "GUARANTEE"), of XXXXXXX XXXXX
XXXXXX HOLDINGS INC., a New York corporation (the "GUARANTOR"), in favor of
Banco Santander Central Hispano, S.A., acting through its London branch (the
"LENDER").
1. GUARANTEE. In order to induce the Lender to enter into the Loan and Security
Agreement, dated as of the date hereof (the "AGREEMENT"), with the Guarantor's
wholly-owned subsidiary, Salomon Brothers International Limited ("SALOMON"), the
Guarantor absolutely and unconditionally guarantees to the Lender, its
successors and permitted assigns, the prompt payment of all amounts payable by
Salomon under the Agreement, whether due or to become due, secured or unsecured,
joint or several (the "OBLIGATIONS") all without regard to any counterclaim,
set-off, deduction or defense of any kind which Salomon or the Guarantor may
have or assert, and without abatement, suspension, deferment or diminution on
account of any event or condition whatsoever. The Guarantor agrees to pay any
and all reasonable out-of-pocket expenses (including reasonable attorney's fees
and expenses) incurred by the Lender to enforce any rights under this Guarantee
after demand for payment hereunder has been made by the Lender and not timely
honored, PROVIDED that the Guarantor shall not be required to pay such expenses
if the Lender is not successful in any action to enforce such rights under this
Guarantee. Any capitalized term used herein and not otherwise defined shall have
the meaning assigned to it in the Agreement.
2. NATURE OF GUARANTEE. This Guarantee is a guarantee of payment and not of
collection. The Lender shall not be obligated, as a condition precedent to
performance by the Guarantor hereunder, to file any claim relating to the
Obligations in the event that Salomon becomes subject to a bankruptcy,
reorganization or similar proceeding, and the failure of the Lender to file a
claim shall not affect the Guarantor's obligations hereunder. This Guarantee
shall continue to be effective or be reinstated if any payment to the Lender by
Salomon on account of any Obligation is returned to Salomon or is rescinded upon
the insolvency, bankruptcy or reorganization of Salomon.
3. CONSENTS, WAIVERS AND RENEWALS. The Guarantor agrees that the Lender may at
any time and from time to time, either before or after the maturity thereof,
without notice to or further consent of the Guarantor, change the time, manner
or place of payment or any other term of any Obligation, exchange, release, or
surrender any collateral for, or renew or change any term of, any of the
Obligations owing to it, and may also enter into a written agreement with
Salomon or with any other person liable on any Obligation, or interested
therein, for the extension, renewal, payment, compromise, modification, waiver,
discharge or release thereof, in whole or in part, without impairing or
affecting this Guarantee. The Obligations of the Guarantor under this Guarantee
are unconditional, irrespective of the value, genuineness, validity, or
enforceability of the Obligations, and, to the fullest extent permitted by
applicable law, any other circumstance which might constitute a defense
available to, or a discharge of, the Guarantor. The Guarantor agrees that the
Lender may have recourse to the Guarantor for payment of any of the Obligations,
whether or not the Lender has proceeded against any collateral security or any
obligor principally or secondarily obligated for any Obligation. The Guarantor
waives demands, promptness, diligence and all notices that may be required by
law or to perfect the Lender's rights hereunder except notice to the Guarantor
of a default by Salomon under the Agreement. No failure, delay or single or
partial exercise by the Lender of its rights or remedies hereunder shall operate
as a waiver of such rights or remedies. All rights and remedies hereunder or
allowed by law shall be cumulative and exercisable from time to time.
4. REPRESENTATIONS AND WARRANTIES. The Guarantor hereby represents and warrants
that:
(i) the Guarantor is duly organized, validly existing and in good
standing under the laws of the State of New York;
(ii) the Guarantor has the requisite corporate power and authority
to issue this Guarantee and to perform its obligations hereunder, and has duly
authorized, executed and delivered this Guarantee;
(iii) the Guarantor is not required to obtain any authorization,
consent, approval, exemption or license from, or to file any registration with,
any government authority as a condition to the validity of, or to the execution,
delivery or performance of, this Guarantee;
(iv) as of the date of this Guarantee, there is no action, suit or
proceeding pending or threatened against the Guarantor before any court or
arbitrator or any governmental body, agency or official in which there is a
reasonable possibility of an adverse decision which would have a material
adverse effect on the ability of the Guarantor to perform any of its obligations
under this Guarantee;
(v) the execution, delivery and performance of this Guarantee by the
Guarantor does not contravene or constitute a default under any statute,
regulation or rule of any governmental authority or under any provision of the
Guarantor's certificate of incorporation or by-laws or any contractual
restriction binding on the Guarantor; and
(vi) this Guarantee constitutes the legal, valid and binding
obligation of the Guarantor enforceable in accordance with its terms, subject to
the effect of any bankruptcy, insolvency, reorganization, moratorium or similar
law affecting creditors' rights generally, and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
5. SUBROGATION. Upon payment by Guarantor of any sums to Lender under this
Guarantee, all rights of Guarantor against Salomon arising as a result thereof
by way of right of subrogation or otherwise shall in all respects be subordinate
and junior in right of payment to the prior indefeasible payment in full of all
the obligations of Salomon under the Agreement.
6. TERMINATION. This Guarantee is a continuing guarantee and shall remain in
full force and effect until such time as all obligations of Salomon under the
Agreement have been paid in full.
7. NOTICES. Any notice or communication required or permitted to be made
hereunder shall be made in the same manner and with the same effect, unless
otherwise specifically provided herein, as set forth in the Agreement. Notices
to the Guarantor shall be made to Xxxxxxx Xxxxx Xxxxxx Holdings Inc., 388
Greenwich Street, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx,
Attention: Xxxxxx Xxxxxxxxxx, Facsimile: 000-000-0000.
8. GOVERNING LAW; JURISDICTION. THIS GUARANTEE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO CHOICE OF LAW DOCTRINE AND WITHOUT GIVING EFFECT TO ANY PROVISION
THEREOF THAT WOULD PERMIT OR REQUIRE THE LAWS OF ANOTHER JURISDICTION TO APPLY.
THE GUARANTOR HEREBY IRREVOCABLY CONSENTS TO, FOR THE PURPOSES OF ANY PROCEEDING
ARISING OUT OF THIS GUARANTEE, THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK AND THE UNITED STATES DISTRICT COURT LOCATED IN THE BOROUGH OF
MANHATTAN IN NEW YORK CITY.
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9. MISCELLANEOUS. Each reference herein to the Guarantor, Lender or Salomon
shall be deemed to include their respective successors and assigns. The
provisions hereof shall inure in favor of each such successor or assign. This
Guarantee (i) shall supersede any prior or contemporaneous representations,
statements or agreements, oral or written, made by or between the parties with
regard to the subject matter hereof, (ii) may be amended only by a written
instrument executed by the Guarantor and Lender and (iii) may not be assigned by
either party without the prior written consent of the other party; PROVIDED that
Lender may assign or otherwise transfer its rights under this Guarantee to any
of its affiliates in connection with an assignment to such affiliate of the
Agreement in accordance with the terms thereof.
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IN WITNESS WHEREOF, the undersigned has executed this Guarantee as of the
date first above written.
XXXXXXX XXXXX XXXXXX HOLDINGS INC.
By: /s/ XXXX XXXXXXXX
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Name: Xxxx Xxxxxxxx
Title: Treasurer
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