EEXHIBIT 10.158
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT, dated as of February 12, 2009 (as amended,
restated or otherwise modified from time to time, this "Guaranty"), by Xxxxxxx
and Company, a New York corporation, Xxxxxxx & Co. International, a Delaware
corporation and Xxxxxxx & Co. Japan Inc., a Delaware corporation (together with
their respective successors and assigns, the "Guarantors") is in favor of each
of the Noteholders (as such term is hereinafter defined).
1. PRELIMINARY STATEMENT
(a) Xxxxxxx & Co., a Delaware corporation (together with its
successors and assigns, the "Company"), has authorized the issuance of (i)
its 10% Series A-2009 Senior Notes due February 13, 2017 in the aggregate
principal amount of $125,000,000 (as amended, restated or otherwise
modified from time to time, together with any such Note issued in
substitution or replacement therefor, the "Series A Notes") and (ii) its
10% Series B-2009 Senior Notes due February 13, 2019 in the aggregate
principal amount of $125,000,000 (as amended, restated or otherwise
modified from time to time, together with any such Note issued in
substitution or replacement therefor, the "Series B Notes", and together
with the Series A Notes, the "Notes") pursuant to a Note Purchase
Agreement, of even date herewith (as may be amended, restated or otherwise
modified from time to time, the "Note Purchase Agreement'), between the
Company and, with respect to the Notes, the respective purchasers listed on
Schedule A attached thereto (the "Purchasers").
(b) In order to induce the Purchasers to purchase the Notes from the
Company, the Company has agreed that it will cause each Guarantor to
guaranty unconditionally all of the obligations of the Company to pay
principal of and interest and Make-Whole Amount on the Notes and all other
amounts payable by the Company under the terms of the Notes and the Note
Purchase Agreement pursuant to the terms and provisions hereof.
(c) Each Guarantor and the Company are operated as part of one
combined business group and are directly dependent upon each other for and
in connection with their respective business activities and their
respective financial resources. Each Guarantor will receive direct and
indirect economic, financial and other benefits from the indebtedness
incurred under the Note Purchase Agreement and the Notes by the Company,
and under this Guaranty by each Guarantor, and the incurrence of such
indebtedness is in the best interests of each Guarantor. The Company and
each Guarantor have induced the Purchasers to purchase the Notes based on
the consolidated financial condition of each Guarantor and the Company.
(d) All acts and proceedings required by law and by the certificate of
incorporation and bylaws of each Guarantor necessary to constitute this
Guaranty a valid and binding agreement for the uses and purposes set forth
herein in accordance with its terms have been done and taken, and the
execution and delivery hereof has been in all respects duly authorized.
2. GUARANTY AND OTHER RIGHTS AND UNDERTAKINGS
2.1. Guarantied Obligations.
Each Guarantor, in consideration of the execution and delivery of the Note
Purchase Agreement, the purchase of the Notes by the Purchasers and other
consideration, hereby irrevocably, unconditionally, absolutely, jointly and
severally guarantees, on a continuing basis, to each holder of Notes (each such
holder being referred to herein as a "Noteholder" and, collectively, as the
"Noteholders"), whether such Note has been issued, is being issued on the date
hereof or is hereafter issued in compliance with the provisions of the Note
Purchase Agreement, as and for each Guarantor's own debt, until final and
indefeasible payment has been made in cash
(a) the due and punctual payment of the principal of and accrued and
unpaid interest (including, without limitation, interest which otherwise
may cease to accrue by operation of any insolvency law, rule, regulation or
interpretation thereof) and Make-Whole Amount, if any, and any other fees
and expenses, on the Notes at any time outstanding and the due and punctual
payment of all other amounts payable, and all other indebtedness owing, by
the Company to the Noteholders under the Note Purchase Agreement and the
Notes, in each case when and as the same shall become due and payable,
whether at maturity, pursuant to optional prepayment, by acceleration or
otherwise, all in accordance with the terms and provisions hereof and
thereof, including, without limitation, overdue interest, indemnification
payments and all reasonable costs and expenses incurred by the Noteholders
in connection with enforcing any obligations of the Company under the Note
Purchase Agreement and the Notes; it being the intent of each Guarantor
that the guaranty set forth herein shall be a continuing guaranty of
payment and not a guaranty of collection; and
(b) the prompt and complete payment, on demand, of any and all
reasonable costs and expenses incurred by the Noteholders in connection
with enforcing the obligations of such Guarantor hereunder, including,
without limitation, the reasonable fees and disbursements of the
Noteholders' special counsel.
All of the obligations set forth in clauses (a) and (b) of this Section 2.1 are
referred to herein as the "Guarantied Obligations" and the guaranty thereof
contained herein is referred to herein as the "Unconditional Guaranty." The
Unconditional Guaranty is a primary, original and immediate obligation of each
Guarantor and is an absolute, unconditional, continuing and irrevocable guaranty
of payment and performance and shall remain in full force and effect until the
full, final and indefeasible payment in cash of the Guarantied Obligations.
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2.2. Performance Under the Note Purchase Agreement.
In the event the Company fails to pay, perform, keep, observe, or fulfill
any Guarantied Obligation specified in clause (a) of Section 2.1 in the manner
provided in the Notes or in the Note Purchase Agreement, each Guarantor shall
cause forthwith to be paid the moneys in respect of which such failure has
occurred in accordance with the terms and provisions of the Note Purchase
Agreement and the Notes. In furtherance of the foregoing, if an Event of Default
shall exist, the Guarantied Obligations shall, in the manner and subject to the
limitations provided in the Note Purchase Agreement for the acceleration of the
Notes, forthwith become due and payable without notice, regardless of whether
the acceleration of the Notes shall be stayed, enjoined, delayed or otherwise
prevented.
2.3. Releases.
Each Guarantor consents and agrees that, without notice to or by any
Guarantor and without impairing, releasing, abating, deferring, suspending,
reducing, terminating or otherwise affecting the obligations of each Guarantor
hereunder, each Noteholder, in the manner provided herein, by action or
inaction, may:
(a) compromise or settle, renew or extend the period of duration or
the time for the payment, or discharge the performance of, or may refuse
to, or otherwise not, enforce, or may, by action or inaction, release all
or any one or more parties to, any one or more of the Notes, the Note
Purchase Agreement, any other guaranty thereof or agreement or instrument
related thereto or hereto;
(b) assign, sell or transfer, or otherwise dispose of, any one or more
of the Notes;
(c) grant waivers, extensions, consents and other indulgences to the
Company or any other Guarantor or guarantors in respect of any one or more
of the Notes, the Note Purchase Agreement, any other guaranty thereof or
any agreement or instrument related thereto or hereto;
(d) amend, modify or supplement in any manner and at any time (or from
time to time) any one or more of the Notes, the Note Purchase Agreement,
any other guaranty thereof or any agreement or instrument related hereto;
(e) release or substitute any one or more of the endorsers or
guarantors of the Guarantied Obligations whether parties hereto or not; and
(f) sell, exchange, release, surrender or enforce, by action or
inaction, any property at any time pledged or granted as security in
respect of the Guarantied Obligations, whether so pledged or granted by the
Company, each Guarantor or another guarantor of the Company's obligations
under the Note Purchase Agreement, the Notes, any other guaranty thereof or
any agreement or instrument related hereto.
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2.4. Waivers.
To the fullest extent permitted by law, each Guarantor does hereby waive:
(a) any notice of:
(i) acceptance of the Unconditional Guaranty;
(ii) any purchase of the Notes under the Note Purchase Agreement,
or the creation, existence or acquisition of any of the Guarantied
Obligations, or the amount of the Guarantied Obligations, subject to
each Guarantor' rights to make inquiry of each Noteholder to ascertain
the amount of the Guarantied Obligations owing to such Noteholder at
any reasonable time;
(iii) any adverse change in the financial condition of the
Company or any other fact that might increase, expand or affect each
Guarantor's risk hereunder;
(iv) presentment for payment, demand, protest, and notice thereof
as to the Notes or any other instrument;
(v) any Default or Event of Default; and
(vi) any notice or demand of any kind or nature whatsoever to
which each Guarantor might otherwise be entitled (except if such
notice or demand is specifically otherwise required to be given to
such Guarantor pursuant to the terms of this Guaranty);
(b) any right, by statute or otherwise, to require any Noteholder to
institute suit against the Company or any other guarantor or to exhaust the
rights and remedies of any Noteholder against the Company or any other
guarantor, each Guarantor being bound to the payment of each and all
Guarantied Obligations, whether now existing or hereafter accruing, as
fully as if such Guarantied Obligations were directly owing to the
Noteholders by each Guarantor;
(c) the benefit of any stay (except in connection with a pending
appeal), valuation, appraisal, redemption or extension law now or at any
time hereafter in force which, but for this waiver, might be applicable to
any sale of property of any Guarantor made under any judgment, order or
decree based on this Guaranty, and each Guarantor covenants that it will
not at any time insist upon or plead, or in any manner claim or take the
benefit or advantage of, such law; and
(d) any defense or objection to the absolute, primary, continuing
nature, or the validity, enforceability or amount of the Unconditional
Guaranty, including, without limitation, any defense based on (and the
primary, continuing nature, and the validity, enforceability and amount of
the Unconditional Guaranty shall be unaffected by), any of the following:
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(i) any change in future conditions;
(ii) any change of law;
(iii) any invalidity or irregularity with respect to the issuance
or assumption of any obligations (including, without limitation, the
Note Purchase Agreement, the Notes or any agreement or instrument
related hereto) by the Company or any other Person;
(iv) the execution and delivery of any agreement at any time
hereafter (including, without limitation, the Note Purchase Agreement,
the Notes or any agreement or instrument related hereto) of the
Company or any other Person;
(v) the genuineness, validity, regularity or enforceability of
any of the Guarantied Obligations;
(vi) any default, failure or delay, willful or otherwise, in the
performance of any obligations by the Company or any Guarantor;
(vii) any creditors' rights, bankruptcy, receivership or other
insolvency proceeding of the Company or any Guarantor, or
sequestration or seizure of any property of the Company or any
Guarantor, or any merger, consolidation, reorganization, dissolution,
liquidation or winding up or change in corporate constitution or
corporate identity or loss of corporate identity of the Company or any
Guarantor;
(viii) any disability or other defense of the Company or any
Guarantor to payment and performance of all Guarantied Obligations
other than the defense that the Guarantied Obligations shall have been
fully and finally performed and indefeasibly paid in cash;
(ix) the cessation from any cause whatsoever of the liability of
the Company or any Guarantor in respect of the Guarantied Obligations
(other than as provided herein), and any other defense that any
Guarantor may otherwise have against the Company or any Noteholder;
(x) impossibility or illegality of performance on the part of the
Company or any Guarantor under the Note Purchase Agreement, the Notes
or this Guaranty;
(xi) any change of the circumstances of the Company, any
Guarantor or any other Person, whether or not foreseen or foreseeable,
whether or not imputable to the Company or any Guarantor, including,
without limitation, impossibility of performance through fire,
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explosion, accident, labor disturbance, floods, droughts, embargoes,
wars (whether or not declared), civil commotions, acts of God or the
public enemy, delays or failure of suppliers or carriers, inability to
obtain materials, economic or political conditions, or any other
causes affecting performance, or any other force majeure, whether or
not beyond the control of the Company or any Guarantor and whether or
not of the kind hereinbefore specified;
(xii) any attachment, claim, demand, charge, Lien, order,
process, encumbrance or any other happening or event or reason,
similar or dissimilar to the foregoing, or any withholding or
diminution at the source, by reason of any taxes, assessments,
expenses, indebtedness, obligations or liabilities of any character,
foreseen or unforeseen, and whether or not valid, incurred by or
against any Person, or any claims, demands, charges, Liens or
encumbrances of any nature, foreseen or unforeseen, incurred by any
Person, or against any sums payable under the Note Purchase Agreement
or the Notes or any agreement or instrument related hereto so that
such sums would be rendered inadequate or would be unavailable to make
the payment as herein provided;
(xiii) any change in the ownership of the equity securities of
the Company, any Guarantor or any other Person liable in respect of
the Notes; or
(xiv) any other action, happening, event or reason whatsoever
that shall delay, interfere with, hinder or prevent, or in any way
adversely affect, the performance by the Company or any Guarantor of
any of their obligations under the Note Purchase Agreement, the Notes
or this Guaranty.
2.5. Certain Waivers of Subrogation, Reimbursement and Indemnity.
Each Guarantor hereby acknowledges and agrees that:
(a) no Guarantor shall have any right of subrogation, contribution,
reimbursement, or indemnity whatsoever in respect of the Guarantied
Obligations, and no right of recourse to or with respect to any assets or
property of the Company;
(b) no Guarantor will file any claims against the Company or the
estate of the Company in the course of any proceeding under any applicable
bankruptcy or insolvency law in respect of the rights referred to in this
Section 2.5; and
(c) each holder of Notes may specifically enforce the provisions of
this Section.
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2.6. Indemnity.
As a separate, additional and continuing obligation, each Guarantor
unconditionally and irrevocably undertakes and agrees with the Noteholders that,
should the Guarantied Obligations not be recoverable from any Guarantor for any
reason whatsoever (including, without limitation, by reason of any provision of
the Note Purchase Agreement, the Notes or any other agreement or instrument
executed in connection therewith being or becoming void, unenforceable or
otherwise invalid under any applicable law) then, notwithstanding any knowledge
thereof by any Noteholder at any time, each Guarantor as sole, original and
independent obligor, upon demand by the Noteholders, will make payment of the
Guarantied Obligations to the Noteholders by way of a full indemnity in such
currency and otherwise in such manner as is provided in the Note Purchase
Agreement and the Notes.
2.7. Invalid Payments.
Each Guarantor further agrees that, to the extent the Company makes a
payment or payments to any Noteholder, which payment or payments or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside or required, for any of the foregoing reasons or for any other reason,
to be repaid or paid over to a custodian, trustee, receiver or any other party
or officer under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation law of any jurisdiction, state
or federal law, or any common law or equitable cause, then to the extent of such
payment or repayment, the obligation or part thereof intended to be satisfied
shall be revived and continued in full force and effect as if said payment had
not been made and each Guarantor shall be primarily liable for such obligation.
2.8. Marshaling.
Each Guarantor consents and agrees that each Noteholder, and each Person
acting for the benefit of each Noteholder, shall be under no obligation to
marshal any assets in favor of any Guarantor or against or in payment of any or
all of the Guarantied Obligations.
2.9. Subordination, Subrogation, Etc.
Each Guarantor agrees that any present or future indebtedness, obligations
or liabilities of the Company to any Guarantor shall be fully subordinate and
junior in right and priority of payment to any present or future indebtedness,
obligations or liabilities of the Company to the Noteholders. Each Guarantor
waives any right of subrogation to the rights of the Noteholders against the
Company or any other Person obligated for payment of the Guarantied Obligations
and any right of reimbursement, contribution or indemnity whatsoever (including,
without limitation, any such right as against any other guarantor) arising or
accruing out of any payment that any Guarantor may make pursuant to this
Guaranty, and any right of recourse to security for the debts and obligations of
the Company, unless and until the entire amount of the Guarantied Obligations
shall have been paid in full.
2.10. Subordination of Affiliate Obligations.
In the event that, for any reason whatsoever, the Company or a Person
obligated in respect of the Guarantied Obligations pursuant to another guaranty,
is now or hereafter becomes indebted to any Guarantor in any manner (an
"Affiliate Obligation"), such Guarantor agrees that the amount of such Affiliate
Obligation, interest thereon, and all other amounts due with respect thereto,
shall, at all times during the existence of a Default or an Event of Default, be
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subordinate as to time of payment and in all other respects to all the
Guarantied Obligations, and that such Guarantor shall not be entitled to enforce
or receive payment thereof until all sums then due and owing to the Noteholders
in respect of the Guarantied Obligations shall have been paid in full, except
that such Guarantor may enforce any obligations in respect of any such Affiliate
Obligation owing to such Guarantor from the Company or such indebted Person so
long as all proceeds in respect of any recovery from such enforcement, to the
extent of all amounts owing with respect to this Guaranty, shall be held by such
Guarantor in trust for the benefit of the Noteholders. If any other payment,
other than pursuant to the immediately preceding sentence, shall have been made
to any Guarantor by the Company or such indebted Person on any such Affiliate
Obligation during any time that a Default or an Event of Default exists and
there are Guarantied Obligations outstanding, such Guarantor shall hold in trust
all such payments, to the extent of all amounts owing with respect to this
Guaranty, for the benefit of the Noteholders.
2.11. Set-off, Counterclaim or Other Deductions.
Except as otherwise required by law, each payment by any Guarantor shall be
made without set-off, counterclaim or other deduction.
2.12. Election by Guarantors to Perform Obligations.
Any election by any Guarantor to pay or otherwise perform any of the
obligations of the Company under the Notes, the Note Purchase Agreement or any
agreement or instrument related hereto shall not release the Company, such
Guarantor or any other guarantor from such obligations or any of such Person's
other obligations under the Notes, the Note Purchase Agreement or any agreement
or instrument related hereto.
2.13. No Election of Remedies by Noteholders.
Each Noteholder shall, individually or collectively, have the right to seek
recourse against any Guarantor to the fullest extent provided for herein for
such Guarantor's obligations under this Guaranty in respect of the Guarantied
Obligations. No election to proceed in one form of action or proceeding, or
against any party, or on any obligation, shall constitute a waiver of such
Noteholder's right to proceed in any other form of action or proceeding or
against other parties unless such Noteholder has expressly waived such right in
writing. Specifically, but without limiting the generality of the foregoing, no
action or proceeding by any Noteholder against the Company or any Guarantor
under any document or instrument evidencing obligations of the Company or any
Guarantor to such Noteholder shall serve to diminish the liability of any
Guarantor under this Guaranty, except to the extent that such Noteholder finally
and unconditionally shall have realized payment by such action or proceeding.
2.14. Separate Action; Other Enforcement Rights.
Each of the rights and remedies granted under this Guaranty to each
Noteholder in respect of the Notes held by such Noteholder may be exercised by
such Noteholder with notice by such Noteholder to, but without the consent of or
any other action by, any other Noteholder; provided, however, that the maturity
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of the Notes may only be accelerated in accordance with the provisions of the
Note Purchase Agreement or operation of law. Each Noteholder may proceed to
protect and enforce the Unconditional Guaranty by suit or suits or proceedings
in equity, at law or in bankruptcy, and whether for the specific performance of
any covenant or agreement contained herein or in execution or aid of any power
herein granted or for the recovery of judgment for the obligations hereby
guarantied or for the enforcement of any other proper, legal or equitable remedy
available under applicable law.
2.15. Noteholder Set-off.
Each Noteholder shall have, to the fullest extent permitted by law and this
Guaranty, a right of set-off against any and all credits and any and all other
property of any or all of the Guarantors or any other Person, now or at any time
whatsoever, with or in the possession of, such Noteholder, or anyone acting for
such Noteholder, to ensure the full performance of any and all obligations of
each Guarantor hereunder.
2.16. Delay or Omission; No Waiver.
No course of dealing on the part of any Noteholder and no delay or failure
on the part of any such Person to exercise any right hereunder shall impair such
right or operate as a waiver of such right or otherwise prejudice such Person's
rights, powers and remedies hereunder. Every right and remedy given by the
Unconditional Guaranty or by law to any Noteholder may be exercised from time to
time as often as may be deemed expedient by such Person.
2.17. Restoration of Rights and Remedies.
If any Noteholder shall have instituted any proceeding to enforce any right
or remedy under the Unconditional Guaranty or under any Note held by such
Noteholder, and such proceeding shall have been dismissed, discontinued or
abandoned for any reason, or shall have been determined adversely to such
Noteholder, then and in every such case each such Noteholder, the Company and
each Guarantor shall, except as may be limited or affected by any determination
(including, without limitation, any determination in connection with any such
dismissal) in such proceeding, be restored severally and respectively to its
respective former positions hereunder and thereunder, and thereafter, subject as
aforesaid, the rights and remedies of such Noteholders shall continue as though
no such proceeding had been instituted.
2.18. Cumulative Remedies.
No remedy under this Guaranty, the Note Purchase Agreement or the Notes is
intended to be exclusive of any other remedy, but each and every remedy shall be
cumulative and in addition to any and every other remedy given pursuant to this
Guaranty, the Note Purchase Agreement or the Notes.
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2.19. Notices in Respect of Payments.
If any Guarantor shall pay to any Noteholder any amount in respect of the
Guarantied Obligations, such Guarantor, within five (5) Business Days after
making such payment, shall provide notice of such payment to each other
Noteholder.
2.20. Limitation on Guarantied Obligation.
Notwithstanding anything in Section 2.1 or elsewhere in this Guaranty, the
Note Purchase Agreement or the Notes to the contrary, the obligations of each
Guarantor hereunder shall at each point in time be limited to an aggregate
amount equal to the greatest amount that would not result in such obligations
being subject to avoidance, or otherwise result in such obligations being
unenforceable, at such time under applicable law (including, without limitation,
to the extent, and only to the extent, applicable to each Guarantor, Section 548
of the Bankruptcy Code of the United States of America and any comparable
provisions of the law of any other jurisdiction, any capital preservation law of
any jurisdiction and any other law of any jurisdiction that at such time limits
the enforceability of the obligations of such Guarantor hereunder).
2.21. Confirmation of Guaranty.
Promptly following the request of any holder of Notes in connection with
any issuance of additional Notes pursuant to the terms of the Note Purchase
Agreement, each Guarantor agrees to confirm in writing that the Unconditional
Guaranty hereunder extends to the obligations of the Company evidenced by such
newly issued Notes, and that such Notes are Guarantied Obligations hereunder.
3. INTERPRETATION OF THIS GUARANTY
3.1. Terms Defined.
For purposes of this Guaranty, the following terms have the meanings
specified below or provided for in the Section of this Guaranty referred to
immediately following such term (such definitions to be equally applicable to
both the singular and plural forms of the terms defined). Capitalized terms used
herein and not otherwise defined herein have the meaning specified in the Note
Purchase Agreement.
Affiliate Obligation -- Section 2.10.
Company -- Section 1(a).
Guarantied Obligations -- Section 2.1.
Guarantors -- has the meaning assigned to such term in the introductory
paragraph hereof.
Note Purchase Agreement -- Section 1(a).
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Noteholder -- Section 2.1.
Notes -- Section 1(a).
Person -- means an individual, partnership, corporation, limited liability
company, association, trust, unincorporated organization, or a government or
agency or political subdivision thereof.
Purchasers -- Section 1(a).
Series A Notes -- Section 1(a).
Series B Notes -- Section 1(a).
Unconditional Guaranty -- Section 2.1.
3.2. Section Headings and Construction.
(a) Section Headings, etc. The titles of the Sections appear as a
matter of convenience only, do not constitute a part hereof and shall not
affect the construction hereof. The words "herein," "hereof," "hereunder"
and "hereto" refer to this Guaranty as a whole and not to any particular
Section or other subdivision.
(b) Construction. Each covenant contained herein shall be construed
(absent an express contrary provision herein) as being independent of each
other covenant contained herein, and compliance with any one covenant shall
not (absent such an express contrary provision) be deemed to excuse
compliance with one or more other covenants.
4. WARRANTIES AND REPRESENTATIONS
Guarantors warrant and represent, as of the date hereof, that each of
the warranties and representations made by the Company in Section 5 of the
Note Purchase Agreement with respect to each Guarantor are true with
respect to each Guarantor on the date hereof.
5. GENERAL COVENANTS
Each Guarantor covenants and agrees that on and after the date hereof
and so long as any of the Guarantied Obligations shall be outstanding:
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5.1. Undertakings in the Note Purchase Agreement.
Each Guarantor will comply with each of the undertakings of the Company in
the Note Purchase Agreement in respect of which the Company undertakes to cause
such Guarantor to comply with such undertakings, as if such undertakings (as
they apply to the Guarantors) were set forth at length herein as the
undertakings of such Guarantor.
5.2. Payment of Notes and Maintenance of Offices.
Each Guarantor will punctually pay, or cause to be paid, all of the
Guarantied Obligations when due and all other payment obligations required of it
hereunder and will maintain an office at its address as set forth pursuant to
Section 6.3 where notices, presentations and demands in respect of this Guaranty
may be made upon it. Such office will be maintained at such address until such
time as such Guarantor shall notify the Noteholders of any change of location of
such office.
5.3. Further Assurances.
Each Guarantor will cooperate with the Noteholders and execute such further
instruments and documents as the Noteholders shall reasonably request to carry
out, to the reasonable satisfaction of the Noteholders, the transactions
contemplated by the Note Purchase Agreement, the Notes and this Guaranty.
6. MISCELLANEOUS
6.1. Successors and Assigns.
(a) Whenever any Guarantor or any of the parties to the Note Purchase
Agreement is referred to, such reference shall be deemed to include the
successors and assigns of such party, and all the covenants, promises and
agreements contained in this Guaranty by or on behalf of such Guarantor
shall bind the successors and assigns of such Guarantor and shall inure to
the benefit of each of the Noteholders from time to time whether so
expressed or not and whether or not an assignment of the rights hereunder
shall have been delivered in connection with any assignment or other
transfer of Notes.
(b) Each Guarantor agrees to take such action as may be reasonably
requested by any Noteholder in connection with the purchase by such
Noteholder or the transfer of the Notes of such Noteholder in accordance
with the requirements of the Note Purchase Agreement in connection with
providing an executed copy of this Guaranty to the new Noteholder or
Noteholders of such Notes; provided, however, that no additional
obligations of such Guarantor shall thereby be created (beyond what is
provided by this Guaranty).
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6.2. Partial Invalidity.
The unenforceability or invalidity of any provision or provisions
hereof shall not render any other provision or provisions contained herein
unenforceable or invalid.
6.3. Communications.
All communications hereunder shall be in writing, shall be delivered in the
manner required by the Note Purchase Agreement, and shall be addressed, if to
any Guarantor, at the applicable address set forth on Annex 1 hereto, and if to
any of the Noteholders:
(a) if such Noteholder is a Purchaser, at the address for such
Noteholder set forth on Schedule A to the Note Purchase Agreement, and
further including any parties referred to on such schedules (which are
required to receive notices in addition to such Noteholder, and
(b) if such Noteholder is not a Purchaser, at the address for such
Noteholder set forth in the register for the registration and transfer of
Notes maintained pursuant to Section 13.1 of the Note Purchase Agreement,
or to any such party at such other address as such party may designate by notice
duly given in accordance with this Section 6.3. Notices shall be deemed given
only when actually received.
6.4. Governing Law.
THIS GUARANTY SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
6.5. Effective Date.
This Guaranty shall be effective as of the date first written above.
6.6. Benefits of Guaranty Restricted to Noteholders.
Nothing express or implied in this Guaranty is intended or shall be
construed to give to any Person other than each Guarantor and the Noteholders
any legal or equitable right, remedy or claim under or in respect hereof or any
covenant, condition or provision therein or herein contained; and all such
covenants, conditions and provisions are and shall be held to be for the sole
and exclusive benefit of each Guarantor and the Noteholders.
6.7. Survival of Representations and Warranties.
All representations and warranties contained herein or made in writing by
each Guarantor in connection herewith shall survive the execution and delivery
hereof.
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6.8. Expenses.
(a) Each Guarantor shall pay when billed the reasonable costs and
expenses (including reasonable attorneys' fees) incurred by the Noteholders
in connection with the consideration, negotiation, preparation or execution
of any amendments, waivers, consents, standstill agreements and other
similar agreements with respect hereto (whether or not any such amendments,
waivers, consents, standstill agreements or other similar agreements are
executed).
(b) At any time when any of the Company or the Guarantors and the
Noteholders are conducting restructuring or workout negotiations in respect
hereof, or a Default or Event of Default exists, each Guarantor shall pay
when billed the reasonable costs and expenses (including reasonable
attorneys' fees of one firm of attorneys and the reasonable fees of one
firm of professional advisors) incurred by the Noteholders in connection
with the assessment, analysis or enforcement of any rights or remedies that
are or may be available to the Noteholders.
(c) If each Guarantor shall fail to pay when due any principal of, or
interest on, or any other amount due in respect of any Note, each Guarantor
shall pay to each Noteholder, to the extent permitted by law, such amounts
as shall be sufficient to cover the costs and expenses, including but not
limited to reasonable attorneys' fees, incurred by such Noteholder in
collecting any sums due on the Notes.
6.9. Amendment.
This Guaranty may be amended only in a writing executed by each Guarantor
and each Noteholder.
6.10. Survival.
So long as the Guarantied Obligations and all payment obligations of each
Guarantor hereunder shall not have been fully and finally performed and
indefeasibly paid, the obligations of each Guarantor hereunder shall survive the
transfer and payment of any Note and the payment in full of all the Notes.
6.11. Entire Agreement.
This Guaranty constitutes the final written expression of all of the terms
hereof and is a complete and exclusive statement of those terms.
6.12. Duplicate Originals.
Two or more duplicate counterpart originals hereof may be signed by the
parties, each of which shall be an original but all of which together shall
constitute one and the same instrument.
14
6.13. Waiver of Jury Trial; Consent to Jurisdiction; Etc.
(a) Waiver of Jury Trial. THE PARTIES HERETO VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
GUARANTY OR ANY OF THE DOCUMENTS, AGREEMENTS OR TRANSACTIONS CONTEMPLATED
HEREBY.
(b) Consent to Jurisdiction. ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS GUARANTY, OR ANY OF THE DOCUMENTS, AGREEMENTS OR
TRANSACTIONS CONTEMPLATED HEREBY OR ANY ACTION OR PROCEEDING TO EXECUTE OR
OTHERWISE ENFORCE ANY JUDGMENT IN RESPECT OF ANY BREACH UNDER THIS GUARANTY
OR ANY DOCUMENT OR AGREEMENT CONTEMPLATED HEREBY MAY BE BROUGHT BY SUCH
PARTY IN ANY FEDERAL DISTRICT COURT LOCATED IN NEW YORK CITY, NEW YORK, OR
ANY NEW YORK STATE COURT LOCATED IN NEW YORK CITY, NEW YORK AS SUCH PARTY
MAY IN ITS SOLE DISCRETION ELECT, AND BY THE EXECUTION AND DELIVERY OF THIS
GUARANTY, THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMIT TO THE
NON-EXCLUSIVE IN PERSONAM JURISDICTION OF EACH SUCH COURT, AND EACH OF THE
PARTIES HERETO IRREVOCABLY WAIVES AND AGREES NOT TO ASSERT IN ANY
PROCEEDING BEFORE ANY TRIBUNAL, BY WAY OF MOTION, AS A DEFENSE OR
OTHERWISE, ANY CLAIM THAT IT IS NOT SUBJECT TO THE IN PERSONAM JURISDICTION
OF ANY SUCH COURT IN ADDITION, EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY DOCUMENT,
AGREEMENT OR TRANSACTION CONTEMPLATED HEREBY BROUGHT IN ANY SUCH COURT, AND
HEREBY IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
15
(c) Service of Process. EACH PARTY HERETO IRREVOCABLY AGREES THAT
PROCESS PERSONALLY SERVED OR SERVED BY U.S. REGISTERED MAIL AT THE
ADDRESSES PROVIDED HEREIN FOR NOTICES SHALL CONSTITUTE, TO THE EXTENT
PERMITTED BY LAW, ADEQUATE SERVICE OF PROCESS IN ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY DOCUMENT,
AGREEMENT OR TRANSACTION CONTEMPLATED HEREBY, OR ANY ACTION OR PROCEEDING
TO EXECUTE OR OTHERWISE ENFORCE ANY JUDGMENT IN RESPECT OF ANY BREACH
HEREUNDER OR UNDER ANY DOCUMENT OR AGREEMENT CONTEMPLATED HEREBY. RECEIPT
OF PROCESS SO SERVED SHALL BE CONCLUSIVELY PRESUMED AS EVIDENCED BY A
DELIVERY RECEIPT FURNISHED BY THE UNITED STATES POSTAL SERVICE OR ANY
COMMERCIAL DELIVERY SERVICE.
(d) Other Forums. NOTHING HEREIN SHALL IN ANY WAY BE DEEMED TO LIMIT
THE ABILITY OF ANY HOLDER OF NOTES TO SERVE ANY WRITS, PROCESS OR SUMMONSES
IN ANY MANNER PERMITTED BY APPLICABLE LAW OR TO OBTAIN JURISDICTION OVER
ANY GUARANTOR IN SUCH OTHER JURISDICTION, AND IN SUCH OTHER MANNER, AS MAY
BE PERMITTED BY APPLICABLE LAW.
[Remainder of page intentionally left blank. Next page is signature page.]
16
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed on each Guarantor's behalf by a duly authorized officer of each
such Guarantor.
XXXXXXX AND COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxx
Title:Senior Vice President, General
Counsel and Secretary
XXXXXXX & CO. INTERNATIONAL
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxx
Title:Vice President and Secretary
XXXXXXX & CO. JAPAN INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxx
Title:Vice President and Secretary
[Signature Page to Guaranty Agreement]
ANNEX 1
ADDRESSES OF GUARANTORS
Xxxxxxx and Company
c/o Xxxxxxx & Co.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chief Financial Officer
Fax: (000) 000-0000
Xxxxxxx & Co. International
c/o Xxxxxxx & Co.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chief Financial Officer
Fax: (000) 000-0000
Xxxxxxx & Co. Japan Inc.
c/o Xxxxxxx & Co.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chief Financial Officer
Fax: (000) 000-0000
