EXECUTION VERSION
AMENDED AND RESTATED GUARANTY AGREEMENT
THIS AMENDED AND RESTATED GUARANTY AGREEMENT (this "Guaranty") is made
effective as of the 16th day of March, 2008, by JPMORGAN CHASE & CO. (the
"Guarantor"), a Delaware corporation headquartered in New York, New York.
WHEREAS, the Guarantor is a party to an Agreement and Plan of Merger with
The Bear Xxxxxxx Companies Inc. ("BSC"), dated as of March 16, 2008 (as amended
from time to time, the "Acquisition Agreement");
WHEREAS, as a condition precedent to entering into the Acquisition
Agreement, BSC requested that the Guarantor enter into a guaranty;
WHEREAS, the Guarantor entered into a Guaranty Agreement dated March 16,
2008 (the "Original Guaranty") and is entering into this Amended and Restated
Guaranty Agreement at the request of the Covered BSC Entities (as defined below)
to replace and make certain clarifications and additions to the Original
Guaranty (without in any way limiting the scope of any guaranties provided under
the Original Guaranty);
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the sufficiency of which is hereby acknowledged, the
Guarantor agrees as follows:
1. The Guarantor hereby unconditionally guaranties the due and punctual
payment of all Covered Liabilities of the Covered BSC Entities on the terms set
forth herein.
2. As used in this Guaranty:
(a) The term "Covered BSC Entities" means BSC and the affiliates of BSC
listed on Schedule 1 hereto. For the avoidance of doubt, Covered BSC Entities
does not include (x) any successor, assign or transferee of BSC or the entities
listed on Schedule 1, which successor, assign or transferee is not an affiliate
of the Guarantor, or (y) any subsidiary, affiliate, fund, special purpose
entity, variable interest entity, investment vehicle or other entity owned
(directly or indirectly), affiliated with or organized, promoted, sponsored,
managed or otherwise administered in any manner by BSC or any BSC affiliate
listed on Schedule 1 or in which BSC or any such BSC affiliate has or has had a
legal or beneficial interest or to which BSC or any such affiliate has or has
had economic exposure, in the case of each of the foregoing clauses (x) and (y)
unless such entity is listed on Schedule 1.
(b) The term "Covered Liabilities" means:
(1) all liabilities and obligations under revolving credit facilities, letters
of credit and letter of credit facilities, term loan facilities, lines of credit
(including without limitation in connection with Trading Contract activities) or
uncommitted loan facilities, in each case whether secured or unsecured (whether
absolute or contingent, liquidated or unliquidated, intraday/daylight,
overnight, short or long term) of the Covered BSC Entities in respect of
extensions of credit to a Covered BSC Entity made prior to the date hereof, made
during the Guaranty Period, made at any time pursuant to a commitment in effect
as of the date hereof or made at any time pursuant to a commitment entered into
during the Guaranty Period (in each case without giving effect to any amendment
of such commitment entered into after the Guaranty Period);
(2) all liabilities and obligations (whether absolute or contingent, liquidated
or unliquidated, intraday/daylight, overnight, short or long term) of the
Covered BSC Entities that arise from transactions that have been entered into
prior to the date hereof and all liabilities and obligations (whether absolute
or contingent, liquidated or unliquidated, intraday/daylight, overnight, short
or long term) of the Covered BSC entities that arise from transactions that are
entered into during the Guaranty Period, in each case to the extent (and only to
the extent) that such liabilities or obligations arise under the terms of: prime
brokerage agreements and accounts, securities lending agreements, custodial and
carrying agreements, securities accounts and securities contracts (including but
not limited to contracts and related accounts for the purchase, sale, loan or
borrowing of a security or loan or a group or index of securities or loans, or
options with respect thereto or interests therein), commodity contracts
(including but not limited to contracts for storage, capacity, transmission,
freight, transportation and other ancillary services and products), forward
contracts, futures contracts, tolling agreements, energy management agreements,
repurchase or reverse repurchase agreements, swap agreements, foreign exchange
and currency contracts, options or other derivatives (whether or not such
derivative contracts are financially or physically settled), settlement or
clearing agreements and arrangements (including but not limited to clearance or
settlement for or by the Covered BSC Entities and membership or participation in
any settlement or clearing system, organization or structure), margin loan
agreements, other contracts or transactions similar to any of the foregoing, any
customary brokerage commission with respect to the foregoing, any contractual
obligation to provide collateral or margin in respect of any of the foregoing or
any obligation under a guaranty of any of the foregoing (all of the foregoing in
this subsection 2(b)(2) collectively, whether exchange-traded or
over-the-counter, whether pursuant to a master agreement, confirmation or
otherwise and whether settled in cash, securities or otherwise, the "Trading
Contracts"); and
(3) all obligations to deliver cash, securities or other property then held by
an applicable Covered BSC Entity to customers pursuant to instructions delivered
to the applicable Covered BSC Entity during the Guaranty Period pursuant to
agreements or arrangements that provide for the customary custody or safekeeping
of cash, securities or other property;
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provided, however, that Covered Liabilities shall not include (i) any liability
or obligation of any kind or nature arising from a transaction entered into
after the expiration of the Guaranty Period (other than to the extent provided
in clause 2(b)(i) above with respect to extensions of credit made after the
Guaranty Period pursuant to commitments entered into prior to or during the
Guaranty Period), or (ii) any liability or obligation of any kind or nature with
respect to the Trading Contracts other than the obligation to pay or perform, as
applicable, the express terms thereof, it being understood that liabilities in
respect of compliance or noncompliance with law or regulation, any actual or
asserted non-contractual breach of duty and any claim relating in any way to
asset allocation or investment advice shall all be deemed not to have arisen
under the express terms of the applicable Trading Contract.
(c) The term "Guaranty Period" means the period commencing on the date
hereof and ending on the End Date.
(d) The term "End Date" means the date specified by Guarantor in a public
notice posted on Guarantor's website at
xxxx://xxxxxxxx.xxxxxxxxxxx.xxx/xxxxxxxxxxxxx/ presentations.cfm, which date
shall be no earlier than the first to occur of (i) the date that is 120 days
following the failure of BSC to receive the approval of BSC's stockholders
required by Section 7.1(a) of the Acquisition Agreement at a duly held meeting
of BSC stockholders convened for the purpose of approving and adopting the
Acquisition Agreement, (ii) the date that is 120 days following closing of the
transactions contemplated in the Acquisition Agreement and (iii) the date of
termination of the Acquisition Agreement pursuant to Section 8.1 thereof, other
than pursuant to Section 8.1(f) . The Guarantor agrees that it shall post the
End Date on its website at least 72 hours prior to the occurrence of the End
Date.
3. Notwithstanding any other provision hereof, this Guaranty and the
obligations of the Guarantor hereunder shall terminate and be of no further
force or effect (and the Guarantor shall have no further liability hereunder) on
and as of the termination of the Acquisition Agreement pursuant to Section
8.1(e)(i) thereof. For the avoidance of doubt, the termination of the
Acquisition Agreement, other than pursuant to Section 8.1(e)(i), shall not
affect or impair the effectiveness of the guaranty provided herein with respect
to the Covered Liabilities of the Covered BSC Entities guarantied hereunder or
the obligations of the Guarantor hereunder with respect thereto.
4. The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of (i) the enforceability of the Covered Liabilities
against the applicable Covered BSC Entity as a result of a bankruptcy,
insolvency or like proceeding or otherwise, (ii) the absence of any action to
enforce the Covered Liabilities against the applicable Covered BSC Entity, (iii)
any amendment, waiver or consent by the applicable Covered BSC Entity or the
holder of a Covered Liability with respect to any provision thereof or (iv) any
other circumstance that might otherwise constitute a legal or
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equitable discharge or defense of a surety or guarantor. The Guarantor
hereby waives promptness, diligence, presentment, demand of payment (provided
that the Guarantor may require confirmation by BSC or the applicable Covered BSC
Entity that the Covered Liability is due and payable and has not been otherwise
satisfied), filing of claims with any court, any right to require a proceeding
first against the applicable Covered BSC Entity, protest or notice with respect
to the applicable Covered Liability and all demands whatsoever, and the
Guarantor hereby covenants that this Guaranty will not be discharged except by
complete performance or payment of the obligations contained in the applicable
Covered Liability and in this Guaranty in accordance with the terms thereof and
hereof, respectively.
5. The Guarantor shall be subrogated to all rights against the applicable
Covered BSC Entity in respect of any amounts paid by the Guarantor pursuant to
the provisions of this Guaranty; provided, however, that the Guarantor shall not
be entitled to enforce, or to receive any payments arising out of, such right of
subrogation until the applicable Covered Liabilities shall have been paid in
full.
6. This Guaranty is a guaranty of payment when due and not of collection.
This Guaranty shall continue to be effective, or be reinstated, as the case may
be, in respect of any Covered Liabilities if at any time payment, or any part
thereof, of said Covered Liabilities is rescinded or must otherwise be restored
or returned by the applicable Covered BSC Entity or any trustee for the
applicable Covered BSC Entity, all as though such payments had not been made.
This Guaranty may be enforced directly by the holder of a Covered Liability
against the Guarantor exclusively in the courts of the state of New York or in
the United States District Court for the Southern District of New York.
7. The obligations of the Guarantor hereunder shall not affect, impair or
limit any right of any Covered BSC Entity or any director, officer or employee
thereof under any insurance program, policy or contract, or release, limit the
liability of, or otherwise inure to the benefit of any insurer thereunder.
8. All notices and other communications provided for hereunder shall be in
writing and telecopied to the Guarantor at:
JPMorgan Chase & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000-000-0000 (fax)
Attention: Xxxxx X. Xxxxx
with a copy to:
JPMorgan Chase & Co.
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000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000-000-0000 (fax)
Attention: General Counsel
9. This Guaranty shall be governed by and construed in accordance with the
laws of the State of New York.
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IN WITNESS WHEREOF JPMorgan Chase & Co. has caused the execution hereof in
its corporate name by its duly authorized officer.
JPMORGAN CHASE & CO.
By: /s/ Xxxxx Xxxxx
-----------------------------
Xxxxx Xxxxx
Chairman and Chief Executive Officer
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Schedule 1 to Amended and Restated Guaranty Agreement
Covered BSC Entity
------------------
The Bear Xxxxxxx Companies Inc.
Bear, Xxxxxxx & Co. Inc.
Bear, Xxxxxxx Securities Corp.
Bear, Xxxxxxx International Limited
Bear Xxxxxxx Bank plc
Bear Xxxxxxx Global Lending Limited
Custodial Trust Company
Bear Xxxxxxx Financial Products Inc.
Bear Xxxxxxx Capital Markets Inc.
Bear Xxxxxxx Credit Products Inc.
Bear Xxxxxxx Forex Inc.
EMC Mortgage Corporation
Bear Xxxxxxx Commercial Mortgage, Inc.
Bear Energy LP
Bear Xxxxxxx Investment Products Inc.
Bear Xxxxxx
Bear Xxxxxxx Japan Ltd.
Bear Xxxxxxx Singapore Pte.
Bear Xxxxxxx Asia Limited
Delta Power Corp.
Bear Xxxxxxx Asset Management Inc.
Bear Xxxxxxx Asset Management Ltd.
Plymouth Park Tax Services LLC
Bear Xxxxxxx Mortgage Capital Corporation
Madison Tax Capital LLC
Bear Xxxxxxx Funding Inc.
Bear Xxxxxxx International Trading Limited
Bear Xxxxxxx Hong Kong Ltd.
BE Allegheny LLC
BE CA LLC
BE Ironwood LLC
BE Red Oak LLC
BE Louisiana LLC
BE Alabama LLC
BE KJ LLC
Mohawk River Funding I LLC
Cedar Brakes I, LLC
Cedar Brakes II, LLC
BSTJ Inc.
BSMA Limited
Other trading and operating entities to be mutually agreed and to be added to
this Schedule by posting to Guarantor's website at
xxxx://xxxxxxxx.xxxxxxxxxxx.xxx/xxxxxxxxxxxxx/xxxxxxxxxxxxx.xxx
Schedule 1 to Guaranty Agreement
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