Exhibit FF
GUARANTEE AND SECURITY INTEREST AGREEMENT
BY THE TRUSTEES OF THE _____ TRUST
GUARANTEE AND SECURITY INTEREST AGREEMENT, dated as of 26 November, 2001 (the
"Agreement"), by and between The Xxxxxxx Xxxxx Group, Inc., a Delaware
corporation ("GS Inc."), on its behalf and on behalf of its subsidiaries and
affiliates (collectively with GS Inc., and its and their predecessors and
successors, the "Firm"), and the trustees of the _____ Trust (the "Obligor")
whose names appear at the end of this Agreement (the "Trustees").
RECITALS
1. Covenants and IPO Pledge. In connection with the participation by
__________ (the "Transferor") in the Amended and Restated Plan of
Incorporation (the "Plan") of The Xxxxxxx Sachs Group, L.P., the
Transferor and GS Inc. entered into an Agreement Relating to
Non-competition and Other Covenants (the "Non-competition Agreement"),
dated as of May 7, 1999, in respect of, inter alia, the Transferor's
obligations (the "Transferor's Obligations") to keep information
concerning the Firm confidential, not to engage in competitive
activities, not to solicit the Firm's clients or employees, and to
cooperate with the Firm in maintaining certain relationships following
the termination of the Transferor's employment. In addition, the
Transferor agreed under the Plan and the Noncompetition Agreement to
certain provisions regarding arbitration, choice of law and choice of
forum, injunctive relief and submission to jurisdiction with respect to
the enforcement of the Obligations. Pursuant to the Noncompetition
Agreement, the Transferor agreed to pay a certain amount of liquidated
damages (the "Liquidated Damages") to GS Inc. in respect of any breach
by the Transferor of certain of the Obligations set forth in the
Noncompetition Agreement. As security for the timely payment of the
Liquidated Damages, the Transferor and GS Inc. entered into a Pledge
Agreement, dated as of May 7, 1999 (the "IPO Pledge Agreement"),
pursuant to which the Transferor pledged to GS Inc. shares (the "IPO
Pledged Shares") of common stock of GS Inc. ("Common Stock").
2. June 2000 Transfer and Pledge. The Transferor transferred (the
"Transfer") on June, 26th 2000 shares of Common Stock to the
corporation whose name is set forth in definition (a) (the
"Corporation"). In order to permit the Transfer, GS Inc. released the
IPO Pledged Shares from the pledge imposed by the IPO Pledge Agreement.
Pursuant to Section 1(b) of the Security Interest Agreement dated June,
26th 2000 (the "June 26th Agreement"), the Transferor entered into
certain covenants and agreements. As security for the timely payment of
the Liquidated Damages and the full and timely performance by the
Transferor of the covenants and agreements the Transferor agreed by the
June 26th Agreement to grant a security interest to GS Inc. of all of
the shares or interests in shares issued or to be issued at any time
(collectively, the "Secured Shares") of the Corporation except
for one share of the Corporation which was and is held by a nominee
shareholder for and to the order of GS Inc. absolutely.
3. The Transferor now wishes to transfer all the shares or interests in
shares issued by the Corporation and subject to the June 26th Agreement
to the Obligor and GS Inc. consents thereto and wishes to release the
Transferor from June 26th Agreement on condition that the Obligor
enters into this Agreement and the Transferor enters into a Security
Interest Agreement with GS Inc. on the date hereof (the "Individual
Security Interest Agreement").
4. The Obligor as trustee has granted a guarantee and indemnity (the
"Guarantee and Indemnity") to GS Inc but it is fully recognized that
liability under such Guarantee and Indemnity is limited to realisable
value of the Obligor from time to time and that in no event shall the
Trustees of the Obligor be personally or individually liable under this
Agreement.
5. This Agreement includes the terms of and constitutes a security
agreement in accordance with the provisions of the Security Interests
(Jersey) Law 1983 (the "1983 Law") and for the purposes of Article 3
thereof the Obligor is the debtor.
NOW, THEREFORE, in consideration of the premises contained herein and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
INTERPRETATION
Definitions
In this Agreement:
(a) the "Corporation" means _________________ a company
incorporated under the law of the Island of Jersey whose
registered office is situate at 00 Xxx Xxxxxx, Xx. Xxxxxx,
Xxxxxx;
(b) "Event of Default" shall mean any breach or failure to perform
by the Transferor or the Corporation any Guaranteed Obligation
or a breach or failure to perform by the Obligor of any of the
covenants and agreements contained in section 2(c) hereof.
(c) "Guaranteed Obligations" mean (i) the timely payment of the
Liquidated Damages by the Transferor; (ii) the Transferor's
covenants and agreements under Clause 1(c) of the Individual
Security Interest Agreement; and (iii) the Corporation's
obligations under the June 26th Agreement.
(d) "Secured Obligations" means (i) the Guarantee and Indemnity by
the Obligor provided in Clause 1 hereof and (ii) the covenants
and agreements of the Obligor contained in Clause 2(c) hereof.
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INTERPRETATION
In this Agreement, unless the context otherwise requires:
(a) words in the singular shall include the plural and words in
the plural shall include the singular;
(b) words denoting any gender shall include all genders;
(c) headings are used for convenience only and shall not affect
the interpretation of this Agreement;
(d) references to Clauses are to be construed as references to
clauses of this Agreement;
(e) references to any agreement or document (including, without
limitation, references to this Agreement) shall be deemed to
include references to such agreement or document as from time
to time varied, amended, supplemented or replaced;
(f) references to any enactment shall be deemed to include
references to such enactment as from time to time amended,
extended, re-enacted or consolidated;
(g) references to a person shall include any body or persons
corporate or unincorporate;
(h) words and expressions defined in the 1983 Law, the
Interpretation Law or the Powers of Attorney Law shall have
the same meanings and bear the same interpretations when used
in this Agreement;
1. Guarantee and Indemnity.
(a) (i) The Obligor unconditionally and irrevocably
guarantees to GS Inc. the satisfaction by each of the
Transferor and the Corporation of their respective
Guaranteed Obligations.
(ii) If and whenever the Transferor or the Corporation
shall fail to pay any amount due pursuant to any
Guaranteed Obligation the payment or satisfaction of
such liability may be met by GS Inc. exercising its
rights pursuant to this Agreement over the Secured
Shares and this Guarantee and Indemnity shall
continue in place so long as this Agreement is in
force and until there has been complete performance
by the Transferor and the Corporation of all the
Guaranteed Obligations.
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(iii) PROVIDED that the liability of the Obligor under this
Agreement shall be limited to recourse against the
assets held by the Trustees in their capacity as
Trustees of the _____ Trust.
(b) Any settlement or discharge between the Firm and the Obligor
shall be subject to the condition that no security or payment
to the Firm by the Transferor or the Corporation or any other
person shall be avoided or reduced by virtue of any provisions
or enactments relating to bankruptcy liquidation or insolvency
for the time being in force and if any such security or
payment shall be so avoided or reduced the Firm shall be
entitled to recover the value or amount of it from the Obligor
subsequently as if such settlement or discharge had not
occurred.
(i) The Obligor hereby agrees that the obligations of the
Obligor hereunder shall not be affected by the
bankruptcy or dissolution of the Transferor or the
Corporation or by any other act omission matter or
thing which but for this provision might operate to
release or otherwise exonerate the Obligor from its
obligations hereunder or affect such obligations.
(ii) The Obligor hereby abandons any right it may have
under the existing or future law of Jersey whether by
virtue of the "droit de discussion" or otherwise to
require that recourse be had by the Firm to the
assets of the Transferor or the Corporation before
any claim is enforced against the Obligor in respect
of the obligations assumed by it hereunder.
(iii) The Obligor hereby undertakes that it will not claim
in any proceedings brought by the Firm to enforce the
Obligor's obligations hereunder that the Transferor
or the Corporation be made a party to such
proceedings.
(iv) The Obligor shall continue to be bound by this
Guarantee and Indemnity whether or not the Obligor is
made a party to legal proceedings brought by the Firm
against the Transferor or the Corporation for the
recovery of any money due under the Agreement and
whether or not the formalities under any Jersey
statute whether existing or future in regard to the
rights and obligations of sureties shall or shall not
have been observed.
(c) The Firm may at all times without prejudice to this Guarantee
and Indemnity and without discharging or in any way affecting
the Obligor's liability hereunder grant to the Transferor or
the Corporation any time or indulgence deal with exchange
release modify or abstain from perfecting or enforcing any
rights which the Firm may have now or hereafter from or
against the Transferor or the Corporation or compound with the
Transferor or the Corporation.
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(d) The Obligor hereby agrees that until all money payable by the
Transferor or the Corporation under the Guaranteed Obligations
to the Firm has been paid in full the Obligor shall not be
entitled to and shall not claim to rank as a creditor or
exercise any rights as surety in the bankruptcy, liquidation
or insolvency of the Transferor or the Corporation in
competition with the Firm.
(e) As a separate and independent stipulation the Obligor hereby
agrees that any money payable by the Transferor or the
Corporation under the Guaranteed Obligations which may not for
whatever reason be recoverable from the Obligor on the footing
of a guarantee shall nevertheless be recoverable from the
Obligor as sole or principal debtor in respect of such money
and shall be paid the Obligor upon demand by the Firm.
(f) All payments to be made by the Obligor shall be made to such
account as the Firm may specify and shall be made without
set-off or counterclaim and free and clear of and without any
deductions whatsoever unless the Obligator is compelled by law
to make payment subject to deductions in which case the
Obligor hereby agrees to indemnify the Firm against the same
and shall pay to the Firm such additional amounts as may be
necessary to ensure that the Firm receives a net amount equal
to the full amount which it would have received had payment
not been made subject to such deductions.
(g) This Guarantee and Indemnity shall be in addition to and shall
not in any way be prejudiced by any collateral or other
security now or hereafter held by the Firm.
(h) Any notice demand or other communication under this Guarantee
and Indemnity shall be given by prepaid post or facsimile
addressed to the Obligor at the current address of the Obligor
or at such other address as the Obligor may hereafter specify
in writing to the Firm. Any such notice demand or other
communication sent by facsimile shall be deemed to have been
duly made at the time of dispatch.
(i) Where the Obligor comprises more than one person both or all
of such persons hereby abandon any right which they may have
under the existing or future law of Jersey whether by virtue
of the "droit de division" or otherwise to require that any
liability under this Guarantee and Indemnity be divided or
apportioned with any other person or be reduced in any manner
whatsoever. Both or all of such persons shall be deemed to
have entered into this Guarantee and Indemnity jointly and
severally. Any demand for payment made by the Firm to any one
or more of the persons so jointly and severally liable shall
be deemed to be a demand on all such persons. The Firm may
release or discharge any one or more of such persons from
liability hereunder or compound with, accept compositions
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from or make any other arrangements with any of such persons
without thereby releasing or discharging any other party to
this Guarantee and Indemnity or otherwise prejudicing or
affecting the Firm's rights and remedies against any such
other party.
(j) Where this Guarantee and Indemnity is signed by or on behalf
of more than one person and any one or more of such persons is
for whatever reason not bound by the provisions of this
Guarantee and Indemnity the remaining signatories hereto shall
continue to be bound by the terms hereof as if such other
persons had never been party hereto.
2. Security Interest.
(a) In order to provide continuing security for the Secured
Obligations the Obligor hereby vests possession of the
certificates of title to the Secured Shares in GS Inc. (or its
agent) and GS Inc. shall have a first priority security
interest and lien (the "Security Interest") in the Secured
Shares in accordance with Article 2(3) of the 1983 Law and,
except as set forth in Clause 3(a), all proceeds thereof
(together with any securities or property to be delivered to
GS Inc. pursuant to Clause 3(b), ("Secured Securities"). The
Obligor herewith delivers to GS Inc. appropriate undated share
transfer forms duly executed in blank (or other documents
deemed necessary or appropriate by GS Inc. to give GS Inc.
control (as defined in the 1983 Law) (such transfer forms and
other appropriate documents, the "Control Documents") in
respect of Secured Securities, and will deliver Control
Documents for all Secured Securities to be subject to this
security interest hereunder from time to time. Until the
termination of this Agreement, the Obligor shall have no right
to substitute, withdraw, transfer or otherwise dispose of the
Secured Securities. (GS Inc. shall not in any circumstances
incur any liability or be under any obligation whatsoever in
connection with the Secured Securities) Possession by GS Inc.
(or its agent) of the certificates of title to the Secured
Securities shall be deemed to be pursuant to this Agreement
whether such possession were vested before or after the
execution of this Agreement.
(b) The Obligor hereby represents and warrants to GS Inc. that the
Secured Shares constitute all of the capital stock of the
Corporation; that, except for the lien and security interest
granted hereby, the Obligor is the record and owner as trustee
of the _____ Trust of all Secured Shares free from any adverse
claim, security interest, encumbrance, lien, charge, or other
right or interest of any person; that, other than the Secured
Shares, there are no debt or equity securities of, or other
interests in, the Corporation, and no rights, options,
warrants or other agreements or instruments to acquire any
debt or equity securities of, or other interest in, the
Corporation; and that no person other than the Obligor
possesses, directly or indirectly, any voting, economic or
other interest in the Corporation
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SAVE THAT one share in the Corporation shall be held by a nominee shareholder
who shall hold such share for and to the order of GS Inc. absolutely.
(c) the Obligor hereby covenants and agrees with GS Inc. that
until the termination of this Agreement as provided in Clause
3(e):
(i) the Obligor will not take any action which would have
the effect of transferring or creating, directly or
indirectly, any voting, economic or other interest in
the Corporation;
(ii) the Obligor will not, directly or indirectly, take
any action with respect to the capital stock or other
interests in the Corporation which the Obligor would
not be permitted to take if such capital stock or
other interests were the shares of Common Stock
received by the Transferor under the Plan;
(iii) the Obligor will not permit the Corporation to issue,
or to redeem or otherwise acquire, any debt or equity
securities of, or other interest in, the Corporation,
or any right, option, warrant or other agreement or
instrument to acquire any debt or equity securities
of, or other interest in, the Corporation provided
that the loan of $___________ made by the Transferor
to the Corporation in connection with the
Transferor's initial acquisition of the Secured
Shares shall not be deemed a security of or interest
in the Corporation for the purposes of this clause;
(iv) the Obligor will not permit the Corporation, directly
or indirectly, to create, incur, assume, guarantee or
otherwise become directly or indirectly liable with
respect to any indebtedness, or to take any action
which might create a lien, claim or encumbrance on
any of its assets; provided, however, that the
Obligor may permit the Corporation (i) to grant a
negative pledge of shares of Common Stock to a
third-party lender to support a loan or line of
credit for the Obligor or the Corporation and (ii)
incur indebtedness and/or pledge shares of Common
Stock so long as the terms of such borrowing and/or
pledge are approved in advance by GS Inc.;
(v) the Obligor will take all necessary and appropriate
actions to ensure that any transfer of Secured Shares
by GS Inc. upon enforcement of the security interest
granted hereunder will be registered in the corporate
records of the Corporation;
(vi) Subject to Clause 3(a), the Obligor will not permit
the Corporation to take any action without the prior
written consent of GS Inc., other than (i) the
purchase of up to five percent of an outstanding
series or class of publicly-traded investment
securities that are not assessable and impose no
future capital commitments, (ii) the
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granting of a negative pledge of shares of Common
Stock to a third-party lender to support a loan or
line of credit for the Transferor or the Corporation
and (iii) the acquisitions of interests in merchant
banking funds sponsored by GS Inc. so long as the
terms of any such acquisition are approved in advance
by GS Inc.;
(vii) the Obligor will remain the sole shareholder of the
Corporation;
(viii) the Obligor will not permit any person to become a
director of the Corporation other than persons
appointed or approved by GS Inc.;
(ix) the Obligor will cause the Managing Directors of GS
Inc. appointed by GS Inc. as directors of the
Corporation (the "GS Appointees") to be elected as
directors of the Corporation and will not take any
action to remove any GS Appointee as director of the
Corporation unless requested by GS Inc. to do so, in
which case the Obligor will take all actions
necessary and desirable to remove such GS Appointee
and, if requested by GS Inc., to cause a successor GS
Appointee to become a director of the Corporation;
and
(x) the Obligor will not permit the Corporation to
dispose of any shares of Common Stock except as and
to the extent that such shares could have been
disposed of by the Corporation to an entity that is
unaffiliated with the Obligor and the Corporation.
3. Administration of Security. The following provisions shall govern the
administration of Secured Securities:
(a) So long as no Event of Default has occurred and is continuing,
the Obligor shall be entitled to vote Secured Securities and
to receive and retain all dividends and, except as set forth
in Clause 3(b) below, other distributions thereon and to give
consents, waivers and ratifications in respect thereof. The
Parties agree that, for the avoidance of doubt, any dividends
or other distributions received by the Obligor from the
Corporation (including any repayment in part of the loan of
__________ held by the Obligor as an asset of the _____ Trust)
shall on receipt by the Obligor cease to be subject to any
Security Interest and shall be released from any other
restriction that applies pursuant to this Agreement.
(b) If the Obligor becomes entitled to receive, or receives, any
certificate representing Secured Securities (or other security
that may succeed Secured Securities or any security issued as
a dividend or distribution in respect of Secured Securities)
in respect of any stock split, reverse stock split, stock
dividend, spinoff, splitup, merger or other combination,
exchange or distribution in connection with any
reclassification, increase or reduction of capital, in each
case, with respect to Secured Securities, the
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Obligor agrees to accept the same as GS Inc.'s agent and to
hold the same in trust on behalf of and for the benefit of GS
Inc. and to deliver the same forthwith to GS Inc. in the exact
form received, with the endorsement of the Obligor when deemed
necessary or appropriate by GS Inc. of undated share transfer
forms duly executed in blank, to be held by GS Inc., subject
to the terms of this Agreement, as additional collateral
security hereunder.
(c) The Obligor hereby agrees that GS Inc. is authorized to hold
Secured Securities through one or more custodians. GS Inc. and
its agents (and its and their assigns) shall have no
obligation in respect of Secured Securities, except to hold
and dispose of the same in accordance with the terms of this
Agreement.
(d) the Obligor agrees with GS Inc. that: (i) the Obligor will
not, and will not purport to, grant or suffer liens or
encumbrances against, or sell, transfer or dispose of, any
Secured Securities other than to or in favor of GS Inc.; (ii)
GS Inc. is authorized, at any time and from time to time, to
file financing statements and give notice to third parties
regarding Secured Securities without the Obligor's signature
to the extent permitted by applicable law, to transfer all or
any part of Secured Securities to GS Inc.'s name or that of
its nominee, and, subject to the provisions of Clause 3(a), to
exercise all rights as if the absolute owner thereof; and
(iii) the Obligor has provided GS Inc. with the Obligor's true
legal name and principal residence and will provide GS Inc.
with 30 days prior written notice before changing Obligor's
name.
(e) Subject to the earlier disposition and application of Secured
Securities pursuant to this Agreement following an Event of
Default, Secured Securities shall be released from the
security interest hereunder, and the lien hereby created in
such Secured Securities shall simultaneously be released, upon
the earliest to occur of (i) the Obligor's death, (ii) the
expiration of the twenty-four (24) month period following the
Obligor's Date of Termination (as defined in the
Noncompetition Agreement), (iii) payment in cash or other
satisfaction by the Obligor of all Liquidated Damages, or (iv)
May 7, 2004, and all remaining Secured Securities shall be
thereupon released from the Security Interest hereunder and
this Agreement shall terminate. Notwithstanding the foregoing,
(x) no Secured Securities shall be released from the Security
Interest hereunder pursuant to this Clause 3(e), if there are
one or more pending disputes between the Obligor and GS Inc.
as to the occurrence of an Event of Default or as to the right
of GS Inc. or the Firm to exercise its remedies under this
Agreement or the Noncompetition Agreement, including
realization against Secured Securities in accordance with
Clause 4 hereof, and this Agreement shall not terminate until
the resolution of all such disputes and (y) no Secured
Securities shall be released prior to the expiration of the
term of the Guaranteed Obligators.
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(f) GS Inc. shall immediately upon request by the Obligor execute
and deliver to the Obligor such instruments, deeds, transfers,
assurances and agreements, in form and substance as the
Obligor shall reasonably request, including the withdrawal or
termination of any financing statements and amendments
thereto, or the filing, withdrawal, termination or amendment
of any other document required under applicable law to
evidence the termination of the security interest created
hereunder with respect to any securities that are released
from the Security Interest hereunder in accordance with the
provisions of this Agreement and to ensure that the one share
held by a nominee shareholder shall be held for and to the
order of the Obligor of the Corporation.
4. Remedies in Case of a Event of Default. If a Default Event has occurred
and is continuing, GS Inc. subject to Articles 6(5) and 8(3) of the
1983 Law, and without having to apply to the Royal Court for authority
to do so shall have the power of sale of the Secured Securities and
have all the rights and remedies of a secured party under the 1983 Law.
To the extent required and permitted by applicable law, GS Inc. will
give the Obligor notice of the time and place of any public sale or of
the time after which any private sale or other disposition of Secured
Securities is to be made, by sending notice at least three days before
the time of sale or disposition, which the Obligor hereby agrees is
reasonable. The Obligor acknowledges the possibility that the public
sale of some or all Secured Securities by GS Inc. may not be made
without a then existing and effective registration statement under the
United States Securities Act of 1933, as amended. The Obligor
acknowledges and agrees with GS Inc. that GS Inc. has no affirmative
obligation to prepare or keep effective any such registration statement
and agrees that at any private sale Secured Securities may be sold at a
price that is less than the price which might have been obtained at a
public sale or that is less than the aggregate outstanding amount of
the Liquidated Damages. For so long as Secured Securities consist of
securities of a type customarily sold in a recognized market or which
are the subject of widely distributed standard price quotations, GS
Inc. may (but shall not be obligated to), as its remedy for a failure
by the Obligor to pay Liquidated Damages, purchase such number of
Secured Securities as are necessary (based upon the Fair Market Value
(as defined below) thereof) to satisfy the then unpaid portion of
Liquidated Damages (by reducing the then unpaid Liquidated Damages by
an amount equal to the Fair Market Value of the Secured Securities
purchased and without payment of any cash consideration) by giving
written notice to such effect to the Obligor (the "Enforcement
Notice"). Effective upon the giving of the Enforcement Notice, and
without further action on the part of the parties to this Agreement, GS
Inc. shall be deemed to have (1) purchased the lesser of (A) all
Secured Securities or (B) such whole number of Secured Securities as
has a Fair Market Value at least equal to the then unpaid Liquidated
Damages; and (2) received proceeds in the amount of the Fair Market
Value of such Secured Securities and applied such proceeds to the
payment of any then unpaid Liquidated Damages. Any excess net proceeds
from the deemed sale of such Secured Securities will continue to be
held as Secured Securities under this Agreement until released in
accordance with Clause 3(e). Nothing in this
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Agreement, however, shall require the Firm to purchase Secured
Securities in accordance with this Clause 4 in order to satisfy the
Obligor's obligation to pay Liquidated Damages. For purposes of this
Agreement, the "Fair Market Value" of any Secured Security means, as of
any date, the fair market value thereof as determined in good faith by
GS Inc. Any good faith determination by GS Inc. of the Fair Market
Value of any Secured Security will be binding on the Obligor.
5. The Obligor's Obligations Not Affected. Except as provided in Clause
10(b), the obligations of the Obligor under this Agreement shall remain
in full force and effect without regard to, and shall not be impaired
or affected by (a) any subordination, amendment or modification of or
addition or supplement to this Agreement, the Noncompetition Agreement,
the Plan or any assignment or transfer thereof; (b) any exercise or
non-exercise by GS Inc. of any right, remedy, power or privilege under
or in respect of this Agreement, the Noncompetition Agreement, the Plan
or any waiver of any such right, remedy, power or privilege; (c) any
waiver, consent, extension, indulgence or other action or inaction in
respect of this Agreement, the Noncompetition Agreement, the Plan or
any assignment or transfer of any thereof; (d) any bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition,
liquidation or the like, of GS Inc., whether or not the Obligor shall
have notice or knowledge of any of the foregoing; or (e) any other act
or omission to act or delay of any kind by the Obligor, GS Inc. or any
other person or any other circumstance whatsoever which might, but for
the provisions of this clause (e), constitute a legal and equitable
discharge of the Obligor's obligations hereunder.
6. Attorneys-in-Fact. Each of GS Inc. and each General Counsel of GS Inc.
from time to time, acting separately, are hereby appointed the
attorneys-in-fact of the Obligor for the purpose of carrying out the
provisions of this Agreement and taking any action and executing any
instrument that GS Inc. reasonably may deem necessary or advisable to
accomplish the purposes hereof, which appointments as attorneys-in-fact
are irrevocable as ones coupled with an interest.
7. Termination. As and to the extent set forth in Clause 3(e) hereof, this
Agreement shall terminate and GS Inc. shall return to the Obligor the
remaining Secured Securities, except as otherwise provided in such
Section.
8. Notices. All notices or other communications required or permitted to
be given hereunder shall be delivered as provided in the Noncompetition
Agreement.
9. No Third Party Beneficiaries. Except as expressly provided herein, this
Agreement shall not confer on any person other than the Firm and the
Obligor any rights or remedies hereunder.
10. Miscellaneous
(a) This Agreement, Section 8 of the Noncompetition Agreement, the
Counterpart to the Shareholders' Agreement, dated the date
hereof, to
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which the Obligor is a party, the Written Consent, dated the
date hereof, to which the Corporation, the Transferor and the
Obligor are parties, the June 26th Agreement, the Individual
Security Interest Agreement and the Guidelines to
Documentation for Non-U.S. Trusts Holding Stock of non-U.S.
Corporations, dated the date hereof, contain the entire
understanding and agreement between the Obligor and GS Inc.
with respect to the matters expressly covered therein and
supersede any other agreement written or oral, pertaining to
such matters.
(b) This Agreement may not be amended or modified other than by a
written agreement executed by the Obligor and GS Inc. or its
successors nor may any provision hereof be waived other than
by a writing executed by the Obligor or GS Inc. or its
successors; provided, that any waiver, amendment or
modification of any of the provisions of this Agreement will
not be effective against the Firm without the written consent
of the Chief Executive Officer of GS Inc. or its successors,
or such individual's designee. The Obligor may not, directly
or indirectly (including by operation of law), assign the
Obligor's rights or obligations hereunder without the prior
written consent of the Chief Executive Officer of GS Inc. or
its successors, or such individual's designee, and any such
assignment by the Obligor in violation of this Agreement shall
be void. This Agreement shall be binding upon the Obligor's
permitted successors and assigns. Without impairing the
Obligor's obligations hereunder, GS Inc. may at any time and
from time to time assign its rights and obligations hereunder
to any of its subsidiaries or affiliates (and have such rights
and obligations reassigned to it or to any other subsidiary or
affiliate). This Agreement shall be binding upon and inure to
the benefit of the Firm and its assigns.
(c) If any provision of this Agreement is finally held to be
invalid, illegal or unenforceable (whether in whole or in
part), such provision shall be deemed modified to the extent,
but only to the extent, of such invalidity, illegality or
unenforceability and the remaining provisions shall not be
affected thereby.
(d) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE ISLAND OF JERSEY, CHANNEL
ISLANDS, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS,
AND SHALL BE SUBJECT TO THE PROVISIONS OF SECTIONS 9, 10 AND
11 OF THE NONCOMPETITION AGREEMENT.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered on the date first above written.
Signed by
For and on behalf of
THE XXXXXXX XXXXX GROUP, INC.
In the presence of:
Signed by
As a Trustee of the ___________ Trust
In the presence of:
Signed by
For and on behalf of
As Trustees of the __________ Trust
In the presence of:
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