GENERAL GUARANTEE AGREEMENT
The
Xxxxxxx Xxxxx Group, Inc. | Xxx Xxx Xxxx Xxxxx x Xxx Xxxx, Xxx Xxxx
00000
Tel:
000-000-0000
Xxxxxxx
Sachs
This
General Guarantee Agreement, dated December 1, 2008 (this “Guarantee”), is made
by The Xxxxxxx Xxxxx Group, Inc. (the “Guarantor”), a corporation duly organized
under the laws of the State of Delaware, in favor of each person (each, a
“Party”) to whom Xxxxxxx Sachs Bank USA, a New York state-chartered bank (as
successor-in-interest to Xxxxxxx Xxxxx Bank USA, a Utah Corporation) and a
subsidiary of the Guarantor (the “Company”), may owe any Obligations (as defined
below) from time to time. In this Guarantee, the “Company” shall also
mean any banking subsidiary of the Guarantor, whether now existing or hereafter
formed, that succeeds to the business of Xxxxxxx Sachs Bank USA.
1. Guarantee. For
value received, the Guarantor hereby unconditionally and, subject to the
provisions of paragraphs number six and seven, irrevocably guarantees to each
Party, the complete payment when due, whether by acceleration or otherwise, of
all payment obligations, whether now in existence or hereafter arising (other
than non-recourse payment obligations) of the Company, including, without
limitation, all payment obligations (other than non-recourse payment
obligations) in connection with any deposit, loan, letter of credit or similar
borrowing or lending obligation or arising under any swap, futures, option,
forward or other derivative instrument (the “Obligations”); provided, however, that, with respect
to any Party, “Obligations” shall not include any payment obligations, whether
now in existence or hereafter arising, of the Company in connection with any
certificate of deposit of the Company if such Party is an Unaffiliated Broker or
has purchased such certificate of deposit from an Unaffiliated Broker, in each
case whether the Unaffiliated Broker acts as agent or principal, whether the
purchase occurs in connection with the original issuance or any subsequent
transaction and whether the issuance or purchase of such certificate of deposit
occurred or will occur at any time in the past or
future. “Unaffiliated Broker” means any broker, dealer or other
financial intermediary other than Xxxxxxx, Xxxxx & Co. or any of its
affiliates. This Guarantee is one of payment and not of
collection.
2. Waiver
of Notice, etc. Except as may be required by the contract, agreement
or instrument creating the Obligations, the Guarantor hereby waives notice of
acceptance of this Guarantee and notice of the Obligations, and waives proof of
reliance, diligence, presentment, demand for payment, protest, notice of
dishonor or non-payment of the Obligations, suit, and the taking of any other
action by any Party against, and any other notice to, the Company, the Guarantor
or others.
3. Nature
of Guarantee. This Guarantee shall be construed as a continuing,
absolute and unconditional guarantee of payment without regard to (a) the
validity or enforceability of any Obligation or right of offset with respect
thereto at any time and from time to time held by any Party or (b) any other
circumstance whatsoever (with or without notice to or knowledge of the Company
or the Guarantor) which might constitute an equitable or legal discharge of
the
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Company
for the Obligations, or of the Guarantor under this Guarantee, in bankruptcy or
in any other instance; provided, however, that under no
circumstances will the Guarantor be liable to any Party hereunder for any amount
in excess of the amount which the Company actually owes to such Party and that
the Guarantor may assert any defense to payment available to the Company, other
than those arising in a bankruptcy or insolvency proceeding.
A Party
may at any time and from time to time without notice to or consent of the
Guarantor and without impairing or releasing the obligations of the Guarantor
hereunder: (1) agree with the Company to make any change in the
terms of the Obligations; (2) take or fail to take any action of any kind
in respect of any security for any obligation or liability of the Company to
such Party, (3) exercise or refrain from exercising any rights against the
Company or others in respect of the Obligations; or (4) compromise or
subordinate the Obligations. Any other suretyship defenses are hereby
waived by the Guarantor.
4. Reinstatement. The
Guarantor further agrees that this Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations, or interest thereon is rescinded or must otherwise be
restored or returned by such Party upon the bankruptcy, insolvency, dissolution
or reorganization of the Company.
5. Subrogation. The
Guarantor will not exercise any rights which it may acquire hereunder by way of
subrogation, as a result of a payment hereunder, until all due and unpaid
Obligations to such Party shall have been paid in full. Any amount
paid to the Guarantor in violation of the preceding sentence shall be held by
Guarantor for the benefit of such Party and shall forthwith be paid to such
Party to be credited and applied to the due and unpaid
Obligations. Subject to the foregoing, upon payment of all such due
and unpaid Obligations, the Guarantor shall be subrogated to the rights of such
Party against the Company with respect to such Obligations, and such Party
agrees to take at the Guarantor’s expense such steps as the Guarantor may
reasonably request to implement such subrogation.
6. Amendment
and Termination. This Guarantee may be amended or terminated, as to
one Party, all Parties or a group of specified Parties and as to one Obligation,
all Obligations or specified Obligations, at any time by (i) issuance by
the Guarantor of a press release reported by the Dow Xxxxx News Service, the
Associated Press or a comparable national news service, or (ii) written
notice signed by the Guarantor, with such amendment or termination effective
with respect to a Party on the opening of business on the fifth New York
business day after earlier of the issuance of such press release or the receipt
of such written notice, as applicable; provided, however, that no such
amendment or termination may adversely affect the rights of any Party relating
to any Obligations incurred prior to the effectiveness of such amendment or
termination; provided
further, that any such
amendment or termination may become effective as to one Party whether or not it
becomes effective with respect to another Party.
7. Assignment. The
Guarantor may not assign its rights nor delegate its obligations under this
Guarantee with respect to a Party, in whole or in part, without prior written
consent of such Party, and any purported assignment or delegation absent such
consent is void, except for an assignment and delegation of all of the
Guarantor’s rights and obligations hereunder in whatever form the Guarantor
determines may be appropriate to a partnership, corporation, trust or other
organization in whatever form that succeeds to all or substantially all of the
Guarantor’s assets
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and
business and that assumes such obligations by contract, operation of law or
otherwise. Upon any such delegation and assumption of obligations,
the Guarantor shall be relieved of and fully discharged from all obligations
hereunder, whether such obligations arose before or after such delegation and
assumption.
5. Governing
Law and Jurisdiction. THIS GUARANTEE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAW. GUARANTOR AGREES TO THE
EXCLUSIVE JURISDICTION OF COURTS LOCATED IN THE STATE OF NEW YORK, UNITED STATES
OF AMERICA, OVER ANY DISPUTES ARISING UNDER OR RELATING TO THIS
GUARANTEE.
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IN
WITNESS WHEREOF, the Guarantor has duly executed this Guarantee as of the day
and year first above written.
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THE
XXXXXXX XXXXX GROUP, INC.
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By:
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Name:
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Xxxxxxxxx
X. Xxxxxx
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Title:
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Treasurer
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