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EXHIBIT 4(b)(1)
[FORM OF] AMENDED AND RESTATED GUARANTEE AGREEMENT
[FORM OF] AMENDED AND RESTATED GUARANTE
AGREEMENT (this "Guarantee Agreement"),
dated as of , 199[ ],
executed and delivered by X.X. Xxxxxx &
Co. Incorporated, a Delaware corporatio
("X.X. Xxxxxx") and First Trust of New
York, National Association, as the
initial Guarantee Trustee (as defined
below) for the benefit of the Holders
(as defined below) from time to time of
the Preferred Securities (as defined
below) of X.X. Xxxxxx Index Funding
Company I, a Delaware statutory busines
trust (the "Trust"), successor by merge
to X.X. Xxxxxx Index Funding Company,
LLC, a Delaware limited liability
company (the "Company").
WHEREAS, the Company issued its common limited liability
company interests, Series [A] (the "Common Securities") to and received related
capital contributions from X.X. Xxxxxx and X.X. Xxxxxx Ventures Corporation
("JPM Ventures"), and issued and sold preferred limited liability company
interests, Series [A] (the "Preferred Securities"; the Preferred Securities and
the Common Securities collectively referred to herein as the "Series [A]
Securities") with such rights, preferences, privileges, limitations and
restrictions as were set forth in a written resolution or resolutions (a
"Written Action") by the managing members of the Company providing for the issue
of such series;
WHEREAS, the Company purchased a Related Note (as defined
below) from Xxxxxx Guaranty Trust Company of New York, a trust company with full
banking powers organized under the laws of the State of New York ("Xxxxxx
Guaranty") with the proceeds from such issuance and sale of the Preferred
Securities and the Common Securities; and
WHEREAS, X.X. Xxxxxx irrevocably and unconditionally agreed to
the extent set forth in the Guarantee Agreement dated as [ ], 199[ ] (the
"Original Guarantee Agreement") to pay to the Holders of the Preferred
Securities the Guarantee Payments (as defined therein) and to make certain other
payments on the terms and conditions set forth therein.
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WHEREAS, pursuant to an Agreement and Plan of Merger dated as
of [ ], 199[ ], the Company has been merged into the Trust;
WHEREAS, X.X. Xxxxxx desires to amend and restate the Original
Guarantee Agreement in order to subject it to the provisions of the Trust
Indenture Act (as defined below), including to appoint an indenture trustee
(hereunder, and pursuant to Section 5.02 of the Original Guarantee Agreement,
such amendment may be effectuated without the consent of the Holders of the
Series [A] Securities;
NOW, THEREFORE, X.X. Xxxxxx executes and delivers
this Guarantee Agreement for the benefit of the Holders.
ARTICLE I
Definitions
(a) Capitalized terms used in this Guarantee Agreement but not
defined in the preamble above have the respective meanings assigned to them in
this Article I.
(b) A term defined anywhere in this Guarantee Agreement has
the same meaning throughout.
(c) All references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified, supplemented
or amended from time to time.
(d) All references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified.
(e) A term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires.
(f) A reference to the singular includes the
plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act of 1933, as amended, or any successor rule thereunder.
"Commission" means the Securities and Exchange Commission.
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"Common Securities" means the securities representing
undivided beneficial interests in the Related Note held by the Property Trustee
for the benefit of the Holders of the Series [A] Securities, and having the
terms set forth in the Written Action.
"Covered Person" means any Holder of Preferred Securities.
"Declaration" means the Amended and Restated Declaration of
Trust dated as of October 10, 1997 among X.X. Xxxxxx, as Sponsor, and the
trustees of the Trust.
"Distributions" means the periodic distributions and other
payments payable to Holders of Preferred Securities in accordance with the terms
of the Preferred Securities set forth in the Written Action.
"Event of Default" means a default by X.X. Xxxxxx
on any of its payment or other obligations under this
Guarantee Agreement.
"Guarantee Payments" means, with respect to the Preferred
Securities, the following payments, without duplication, to the extent not paid
by the Trust: (i) any accumulated and unpaid distributions which have been
theretofore declared on the Preferred Securities, to the extent Xxxxxx Guaranty
has made a corresponding payment on the Related Note, out of funds legally
available therefor, (ii) the Preferred Redemption Price (including all
accumulated and unpaid distributions), to the extent Xxxxxx Guaranty has made a
corresponding payment on the Related Note, payable out of funds legally
available therefor with respect to any Preferred Securities called for
redemption upon redemption thereof and (iii) upon the liquidation of the Trust,
the lesser of (a) the Liquidation Distribution (as defined below) with respect
to such series and (b) the amount of the assets of the Trust consisting of the
Related Note and the proceeds thereof, legally available for distribution to
Holders of Preferred Securities of such series in liquidation.
"Guarantee Trustee" means First Trust of New York, National
Association until a Successor Guarantee Trustee has been appointed and accepted
such appointment pursuant to the terms of this Guarantee Agreement and
thereafter means each such Successor Guarantee Trustee.
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"Holder" means any Person from time to time holding any
Preferred Securities; provided, however, that in determining whether the Holders
of the requisite percentage of Preferred Securities have given any request,
notice, consent or waiver hereunder, "Holder" shall not include X.X. Xxxxxx or
any entity directly or indirectly controlling or controlled by or under direct
or indirect common control with X.X. Xxxxxx.
"Indemnified Person" means the Guarantee Trustee, any
Affiliate of the Guarantee Trustee, and any officers, directors, shareholders,
members, partners, employees, representatives or agents of the Guarantee
Trustee.
"Liquidation Distribution" means, with respect to the
Preferred Securities, the aggregate Principal Amount of the Preferred Securities
and all accumulated and unpaid distributions (whether or not declared) with
respect to the Preferred Securities to but excluding the date of payment.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Redemption Price" means, with respect to the
Preferred Securities, the aggregate Principal Amount of all the Preferred
Securities plus accumulated and unpaid distributions (whether or not declared)
with respect to the Preferred Securities to but excluding the date of
redemption.
"Preferred Securities" has the meaning set forth
in the first WHEREAS clause above.
"Principal Amount" means, at any time with respect to any
Preferred Security, the Redemption Value, the applicable Early Redemption Value
or the stated liquidation preference thereof, as applicable, as determined in
accordance with the Written Consent.
"Property Trustee" means the Person acting as
Property Trustee under the Declaration.
"Related Note" means the obligation of Xxxxxx Guaranty in
which the proceeds from the issuance of the
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Preferred Securities and the related Common Securities were invested. The
Related Note shall be deemed to be "associated with" the Series [A] Securities.
"Responsible Officer" means, with respect to the Guarantee
Trustee, the chairman of the board of directors, the president, any
vice-president, any assistant vice-president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or
assistant trust officer or any other officer of the Guarantee Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular subject.
"Series of Securities" means any series of Preferred
Securities and the related series of Common Securities including the Series [A]
Securities.
"Successor Guarantee Trustee" means a successor Guarantee
Trustee possessing the qualifications to act as a Guarantee Trustee under
Section 4.01.
"Trust Indenture Act" means the Trust Indenture
Act of 1939, as amended.
ARTICLE II
Trust Indenture Act
SECTION 2.01. Trust Indenture Act; Application. (a) This
Guarantee Agreement is subject to the provisions of the Trust Indenture Act that
are required to be part of this Guarantee Agreement and shall, to the extent
applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
(c) The application of the Trust Indenture Act to this
Guarantee Agreement shall not affect the nature of the Preferred Securities as
equity securities representing
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undivided beneficial interests in the relevant Related Note held by the Trust.
SECTION 2.02. Lists of Holders of Preferred Securities. (a)
X.X. Xxxxxx shall provide the Guarantee Trustee with such information as is
required under Section 312(a) of the Trust Indenture Act at the times and in the
manner provided in Section 312(a).
(b) The Guarantee Trustee shall comply with its obligations
under Sections 310(b), 311 and 312(b) of the Trust Indenture Act.
SECTION 2.03. Reports by the Guarantee Trustee. Within 60 days
after May 15 of each year, the Guarantee Trustee shall provide to the Holders of
the Preferred Securities such reports as are required by Section 313 of the
Trust Indenture Act, if any, in the form, in the manner and at the times
provided by Section 313 of the Trust Indenture Act. The Guarantee Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.04. Periodic Reports to the Guarantee Trustee. X.X.
Xxxxxx shall provide to the Guarantee Trustee, the Commission and the Holders of
the Preferred Securities, as applicable, such documents, reports and information
as required by Section 314(a)(1)-(3) (if any) of the Trust Indenture Act and the
compliance certificates required by Section 314(a)(4) and (c) of the Trust
Indenture Act, any such certificates to be provided in the form, in the manner
and at the times required by Section 314(a)(4) and (c) of the Trust Indenture
Act (provided that any certificate to be provided pursuant to Section 314(a)(4)
of the Trust Indenture Act shall be provided within 120 days of the end of each
fiscal year of the Trust).
SECTION 2.05. Evidence of Compliance with Conditions
Precedent. X.X. Xxxxxx shall provide the Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Guarantee
Agreement which relate to any of the matters set forth in Section 314(c) of the
Trust Indenture Act. Any certificate or opinion required to be given pursuant to
Section 314(c) shall comply with Section 314(e) of the Trust Indenture Act.
SECTION 2.06. Events of Default; Waiver. (a) Subject to
Section 2.06(b), Holders of Preferred
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Securities may by vote of at least a majority in Principal Amount of the
Preferred Securities, (A) direct the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee, or exercising any
trust or power conferred upon by the Guarantee Trustee, in either case with
respect to the Series [A] Securities or (B) on behalf of the Holders of all
Preferred Securities waive any past Event of Default with respect to the Series
[A] Securities and its consequences. Upon such waiver, any such default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Guarantee Agreement, but no such
waiver shall extend to any subsequent or other default or Event of Default (with
respect to the Series [A] Securities or any other series of securities) or
impair any right consequent thereon.
(b) The right of any Holder of Preferred Securities to receive
payment of the Guarantee Payments in accordance with this Guarantee Agreement,
or to institute suit for the enforcement of any such payment, shall not be
impaired without the consent of each such Holder.
SECTION 2.07. Disclosure of Information. The disclosure of
information as to the names and addresses of the Holders of the Preferred
Securities in accordance with Section 312 of the Trust Indenture Act, regardless
of the source from which such information was derived, shall not be deemed to be
a violation of any existing law, or any law hereafter enacted which does not
specifically refer to Section 312 of the Trust Indenture Act, nor shall the
Guarantee Trustee be held accountable by reason of mailing any material pursuant
to a request made under Section 312(b) of the Trust Indenture Act.
SECTION 2.08. Conflicting Interest. The Declaration shall be
deemed to be specifically described in this Guarantee Agreement for the purposes
of clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
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ARTICLE III
Powers, Duties and Rights of Guarantee Trustee
SECTION 3.01. Powers and Duties of the Guarantee Trustee. (a)
This Guarantee Agreement shall be held by the Guarantee Trustee in trust for the
benefit of the Holders of the Preferred Securities. The Guarantee Trustee shall
not transfer its right, title and interest in this Guarantee Agreement to any
Person except a Successor Guarantee Trustee on acceptance by such Successor
Guarantee Trustee of its appointment to act as Guarantee Trustee or to a Holder
of Preferred Securities exercising his or her rights pursuant to Section 5.04.
The right, title and interest of the Guarantee Trustee to this Guarantee
Agreement shall vest automatically in each Person who may hereafter be appointed
as Guarantee Trustee in accordance with Article IV. Such vesting and cessation
of title shall be effective whether or not conveyancing documents have been
executed and delivered.
(b) If an Event of Default with respect to the Preferred
Securities occurs and is continuing, the Guarantee Trustee shall enforce this
Guarantee Agreement for the benefit of the Holders of the Preferred Securities.
(c) This Guarantee Agreement and all moneys received by the
Property Trustee hereunder in respect of the Guarantee Payments will not be
subject to any right, charge, security interest, lien or claim of any kind in
favor of, or for the benefit of the Guarantee Trustee or its agents or their
creditors.
(d) The Guarantee Trustee shall, within 30 days after the
occurrence of an Event of Default with respect to the Preferred Securities,
transmit by mail, first class postage prepaid, to the Holders of the Preferred
Securities, as their names and addresses appear upon the register, notice of all
Events of Default known to the Guarantee Trustee, unless such defaults shall
have been cured before the giving of such notice; provided, that, the Guarantee
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
and/or Responsible Officers, of the Guarantee Trustee in good faith determine
that the withholding of such notice is in the interests of the Holders of the
Preferred Securities. The Guarantee Trustee shall not be deemed to have
knowledge of any default except any default as to which the Guarantee Trustee
shall
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have received written notice or a Responsible Officer charged with the
administration of the Guarantee Agreement shall have obtained written notice.
(e) The Guarantee Trustee shall not resign as a Trustee unless
a Successor Guarantee Trustee has been appointed and accepted that appointment
in accordance with Article IV.
SECTION 3.02. Certain Rights and Duties of the Guarantee
Trustee. (a) The Guarantee Trustee, before the occurrence of an Event of Default
and after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Guarantee Agreement, and no implied covenants shall be read into this Guarantee
Agreement against the Guarantee Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.06(a)), the
Guarantee Trustee shall exercise such of the rights and powers vested in it by
this Guarantee Agreement, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
this conduct of his or her own affairs.
(b) No provision of this Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability for its own negligent
action, its own negligent failure to act or its own wilful misconduct, except
that:
(i) prior to the occurrence of an Event of Default
and after the curing or waiving of all such Events of
Default that may have occurred;
(A) the duties and obligations of the Guarantee
Trustee shall be determined solely by the express provisions
of this Guarantee Agreement, and the Guarantee Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Guarantee
Agreement, and no implied covenants or obligations shall be
read into this Guarantee Agreement against the Guarantee
Trustee; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness of
the opinions
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expressed therein, upon any certificates or opinions furnished
to the Guarantee Trustee and conforming to the requirements of
this Guarantee Agreement; but in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to
the requirements of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the
Guarantee Trustee, unless it shall be proved that the Guarantee Trustee
was negligent in ascertaining the pertinent facts;
(iii) the Guarantee Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of Preferred Securities as
provided herein relating to the time, method and place of conducting
any proceeding for any remedy available to the Guarantee Trustee, or
exercising any trust or power conferred upon the Guarantee Trustee
under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require
the Guarantee Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of its duties or
in the exercise of any of its rights or powers, if it shall have
reasonable ground for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Guarantee Agreement or adequate indemnity against such risk or
liability is not reasonably assured to it.
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(c) Subject to the provisions of Section 3.02(a) and (b):
(i) whenever in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a matter
be proved or established prior to taking, suffering or omitting any
action hereunder, the Guarantee Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of bad faith on its
part, request and rely upon a certificate, which shall comply with the
provisions of Section 314(e) of the Trust Indenture Act, signed by any
authorized officer of X.X. Xxxxxx;
(ii) the Guarantee Trustee (A) may consult with counsel of its
choice (which may be counsel to X.X. Xxxxxx or any of its Affiliates
and may include any of its employees) selected by it in good faith and
with due care and the written advice or opinion of such counsel with
respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon and in accordance with
such advice and opinion and (B) shall have the right at any time to
seek instructions concerning the administration of this Guarantee
Agreement from any court of competent jurisdiction;
(iii) the Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any agent
or attorney appointed by it in good faith and with due care;
(iv) the Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holders of Preferred
Securities, unless such Holders shall have offered to the Guarantee
Trustee reasonable security and indemnity against the costs, expenses
(including its attorneys' fees and expenses) and liabilities that might
be incurred by it in complying with such request or direction; provided
that nothing contained in this clause (iv) shall relieve the Guarantee
Trustee of the obligation, upon the occurrence of an Event of Default
(which has not
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been cured or waived) to exercise such of the rights and powers vested
in it by this Guarantee Agreement, and to use the same degree of care
and skill in this exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs; and
(v) any action taken by the Guarantee Trustee or its agents
hereunder shall bind the Holders of any affected series of Preferred
Securities and the signature of the Guarantee Trustee or its agents
alone shall be sufficient and effective to perform any such action; and
no third party shall be required to inquire as to the authority of the
Guarantee Trustee to so act, or as to its compliance with any of the
terms and provisions of this Guarantee Agreement, both of which shall
be conclusively evidenced by the Guarantee Trustee's or its agent's
taking such action.
SECTION 3.03. Not Responsible for Recitals or Issuance of
Guarantee Agreement. The recitals contained in this Guarantee Agreement shall be
taken as the statements of X.X. Xxxxxx and the Guarantee Trustee does not assume
any responsibility for their correctness. The Guarantee Trustee makes no
representations as to the validity or sufficiency of this Guarantee Agreement.
ARTICLE IV
Guarantee Trustee
SECTION 4.01. Qualifications. (a) There shall at all times be
a Guarantee Trustee which shall:
(i) not be an Affiliate of X.X. Xxxxxx; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or Person permitted by
the Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000,
and subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority. If such corporation
publishes reports of condition at
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least annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then for the
purposes of this Section 4.01(a)(ii), the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
If at any time the Guarantee Trustee shall cease to satisfy
the requirements of clauses (i)-(ii) above, the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.02. If
the Guarantee Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee and
X.X. Xxxxxx shall in all respects comply with the provisions of Section 310(b)
of the Trust Indenture Act.
SECTION 4.02. Appointment, Removal and Resignation of
Guarantee Trustee. (a) Subject to Section 4.02(b), the Guarantee Trustee may be
appointed or removed without cause at any time by X.X. Xxxxxx.
(b) The Guarantee Trustee shall not be removed in accordance
with Section 4.02(a) until a Successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 4.01(a) has been
appointed and has accepted such appointment by written instrument executed by
such Successor Guarantee Trustee and delivered to X.X.
Xxxxxx and the Guarantee Trustee being removed.
(c) The Guarantee Trustee appointed to office shall hold
office until his successor shall have been appointed or until its removal or
resignation.
(d) The Guarantee Trustee may resign from office (without need
for prior or subsequent accounting) by an instrument (a "Resignation Request")
in writing signed by the Guarantee Trustee and delivered to X.X. Xxxxxx, which
resignation shall take effect upon such delivery or upon such later date as is
specified therein; provided, however, that no such resignation of the Guarantee
Trustee shall be effective until a Successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 4.01(a) has been
appointed and has accepted such appointment by instrument executed by such
Successor Guarantee Trustee and delivered to X.X. Xxxxxx and the resigning
Guarantee Trustee.
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(e) If no Successor Guarantee Trustee shall have been
appointed and accepted appointed as provided in this Section 4.02 within 60 days
after delivery to X.X. Xxxxxx of a Resignation Request, the resigning Guarantee
Trustee may petition any court of competent jurisdiction for appointment of a
Successor Guarantee Trustee. Such court may thereupon after such notice, if any,
as it may deem proper and prescribe, appoint a Successor Guarantee Trustee.
ARTICLE V
Guarantee
SECTION 5.01. Guarantee. X.X. Xxxxxx irrevocably and
unconditionally agrees, to the extent set forth herein, to pay in full to the
Holders of the Preferred Securities the Guarantee Payments with respect to the
Preferred Securities, as and when due (except to the extent paid by the Trust),
regardless of any defense, right of set-off or counterclaim which the Trust may
have or assert. This Guarantee Agreement is continuing, irrevocable,
unconditional and absolute.
SECTION 5.02. Waiver of Notice. X.X. Xxxxxx hereby waives
notice of acceptance of this Guarantee Agreement and of any liability to which
it applies or may apply, presentment, demand for payment, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
SECTION 5.03. Obligations Not Affected. The obligations,
covenants, agreements and duties of X.X. Xxxxxx under this Guarantee Agreement
shall in no way be affected or impaired by reason of the happening from time to
time of any of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Trust of any express or implied
agreement, covenant, term or condition relating to the Preferred
Securities to be performed or observed by the Trust;
(b) the extension of time for the payment by the Trust of all
or any portion of the distributions, Preferred Redemption Price,
liquidation distributions
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or any other sums payable under the terms of the Preferred Securities
or the extension of time for the performance of any other obligation
under, arising out of, or in connection with, the Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the
terms of the Preferred Securities, or any action on the part of the
Trust granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Trust or any of the assets of the Trust;
(e) any invalidity of, or defect or deficiency in, any of the
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstances whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.03 that the obligations of X.X.
Xxxxxx hereunder shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or obtain consent
of, X.X. Xxxxxx with respect to the happening of any of the foregoing.
SECTION 5.04. Enforcement of Guarantee Agreement. X.X. Xxxxxx
and the Guarantee Trustee expressly acknowledge that (i) this Guarantee
Agreement will be deposited with the Guarantee Trustee to be held for the
benefit of the Holders; (ii) the Guarantee Trustee has the right to enforce this
Guarantee Agreement on behalf of the Holders; (iii) Holders representing not
less than a majority in Principal Amount of the Preferred Securities have the
right to direct the time, method and place of conducting any proceeding for any
remedy available in respect of this Guarantee Agreement with respect to the
Preferred Securities including the giving of directions to the Guarantee
Trustee, or exercising any trust
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or other power conferred upon the Guarantee Trustee under this Guarantee
Agreement, and (iv) if the Guarantee Trustee fails to enforce this Guarantee
Agreement with respect to the Preferred Securities, any Holder of the Preferred
Securities may institute a legal proceeding directly against X.X. Xxxxxx to
enforce its rights under this Guarantee Agreement, without first instituting a
legal proceeding against the Trust, the Guarantee Trustee, or any other Person.
SECTION 5.05. Guarantee of Payment. This is a guarantee of
payment and not of collection. This Guarantee Agreement will not be discharged
except by payment of the Guarantee Payments in full (without duplication of
amounts theretofore paid by the Trust).
SECTION 5.06. Subrogation. X.X. Xxxxxx shall be subrogated to
all (if any) rights of the Holders against the Trust in respect of any amounts
paid to the Holders by X.X. Xxxxxx under this Guarantee Agreement and the Trust
shall not be required to make payment to the Holders of any amount of Guarantee
Payments in respect of which payment has theretofore been made by X.X. Xxxxxx
pursuant to Section 5.01 hereof; provided, however, that X.X. Xxxxxx shall not
(except to the extent required by mandatory provisions of law) exercise any
rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of a payment under
this Guarantee Agreement, if, at the time of any such payment, any amounts are
due and unpaid under this Guarantee Agreement. If any amount shall be paid to
X.X. Xxxxxx in violation of the preceding sentence, X.X. Xxxxxx agrees to pay
over such amount to the Holders for application to the Guarantee Payments then
due hereunder, if any, or to offset payments due to the Holders by the Trust.
SECTION 5.07. Independent Obligations. X.X. Xxxxxx
acknowledges that its obligations hereunder are independent of the obligations
of the Trust with respect to the Preferred Securities and that X.X. Xxxxxx shall
be liable as principal and sole debtor hereunder to make Guarantee Payments
pursuant to the terms of this Guarantee Agreement notwithstanding the occurrence
of any event referred to in subsections (a) through (g), inclusive, of Section
5.03 hereof.
ARTICLE VI
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Limitation of Transactions; Subordination
SECTION 6.01. Limitation of Transactions. So long as any
Preferred Securities remain outstanding, X.X. Xxxxxx shall: (i) not cause or
permit any Common Securities to be transferred; (ii) maintain 100% ownership of
all outstanding securities of each series of the Trust other than the Preferred
Securities of any series; (iii) not voluntarily dissolve, wind up, liquidate or
terminate the Trust; (iv) not incur or permit to exist any indebtedness of the
Trust; and (v) not take any actions inconsistent with the treatment of the Trust
as a grantor trust for United States Federal income tax purposes. So long as any
Preferred Securities remain outstanding, X.X. Xxxxxx will not declare or pay
dividends on, or redeem, purchase, acquire or make a distribution or liquidation
payment with respect to, any of its common stock or preferred stock or make any
Guarantee Payment with respect thereto if at such time (i) X.X. Xxxxxx shall be
in default with respect to its Guarantee Payments or other payment obligations
hereunder or (ii) there shall have occurred any event of default under the
Declaration; provided, however, that the foregoing restrictions shall not apply
to (a) dividends, redemptions, purchases, acquisitions, distributions or
payments made by X.X. Xxxxxx by way of issuance of shares of its capital stock,
(b) payments of accrued dividends by X.X. Xxxxxx upon the redemption, exchange
or conversion of any preferred stock of X.X. Xxxxxx as may be outstanding from
time to time in accordance with the terms of such preferred stock, (c) cash
payments made by X.X. Xxxxxx in lieu of delivering fractional shares upon the
redemption, exchange or conversion of any preferred stock of X.X. Xxxxxx as may
be outstanding from time to time in accordance with the terms of such preferred
stock, (d) repurchases, redemptions or other acquisitions of shares of capital
stock of X.X. Xxxxxx in connection with any employment contract, benefit plan or
other similar arrangement with or for the benefit of employees, officers,
directors of consultants, or (e) any declaration of a dividend in connection
with the implementation of a stockholders' rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of such
rights pursuant thereto.
SECTION 6.02. Subordination. This Guarantee Agreement will
constitute an unsecured obligation of X.X. Xxxxxx and will rank (i) subordinate
and junior in right of payment to all other liabilities of X.X. Xxxxxx, (ii)
pari
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passu with the most senior preferred stock outstanding as of the date hereof of
X.X. Xxxxxx and (iii) senior to X.X. Xxxxxx'x common stock. X.X. Xxxxxx'x
obligations under this Guarantee Agreement will rank pari passu with respect to
obligations under other guarantee agreements which it may enter into from time
to time to the extent that such agreements shall be entered into in
substantially the form hereof and provided for comparable guarantees by X.X.
Xxxxxx of payment on other preferred securities issued by the Trust or any
similar trust sponsored by X.X. Xxxxxx.
ARTICLE VII
Termination
SECTION 7.01. This Guarantee Agreement shall terminate and be
of no further force and effect as to the Preferred Securities upon full payment
of the Preferred Redemption Price of the Preferred Securities, and shall
terminate completely upon full payment of the amounts payable to Holders upon
liquidation of the Trust; provided, however, that this Guarantee Agreement shall
continue to be effective or shall be reinstated, as the case may be, if at any
time any Holder must restore payment of any sums paid under the Preferred
Securities or under this Guarantee Agreement for any reason whatsoever. X.X.
Xxxxxx agrees to indemnify each Holder and hold it harmless against any loss it
may suffer in such circumstances.
ARTICLE VIII
Limitation of Liability; Indemnification
SECTION 8.01. Exculpation. (a) No Indemnified Person shall be
liable, responsible or accountable in damages or otherwise to X.X. Xxxxxx or any
Covered Person for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith and in a
manner such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Guarantee Agreement or by
law, except that an Indemnified Person shall be liable for any such loss, damage
or claim incurred by reason of such Indemnified Person's negligence or wilful
misconduct with respect to such acts or omissions.
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(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of X.X. Xxxxxx and upon such information,
opinions, reports or statements presented to X.X. Xxxxxx by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of X.X. Xxxxxx, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and amounts of
assets from which Distributions to Holders of Preferred Securities might
properly be paid.
SECTION 8.02. Indemnification. (a) To the fullest extent
permitted by applicable law, X.X. Xxxxxx shall indemnify and hold harmless each
Indemnified Person from and against any loss, damage or claim incurred by such
Indemnified Person by reason of any act or omission performed or omitted by such
Indemnified Person in good faith and in a manner such Indemnified Person
reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Guarantee Agreement, except that no Indemnified
Person shall be entitled to be indemnified in respect of any loss, damage or
claim incurred by such Indemnified Person by reason of negligence or wilful
misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law,
expenses (including legal fees) incurred by an Indemnified Person in defending
any claim, demand, action, suit or proceeding shall, from time to time, be
advanced by X.X. Xxxxxx prior to the final disposition of such claim, demand,
action, suit or proceeding upon receipt by X.X. Xxxxxx of an undertaking by or
on behalf of the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be indemnified as
authorized in Section 8.02(a).
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ARTICLE IX
Miscellaneous
SECTION 9.01. Successors and Assigns. All guarantees and
agreements contained in this Guarantee Agreement shall bind the successors,
assigns, receivers, trustees and representatives of X.X. Xxxxxx and shall inure
to the benefit of the Holders. X.X. Xxxxxx shall not assign its obligations
hereunder without the prior approval of Holders of not less than a majority in
Principal Amount of all Preferred Securities of all series then outstanding
voting as a single class.
SECTION 9.02. Amendments. Except with respect to any changes
or waivers which do not adversely affect the rights of Holders (in which case no
vote will be required), this Guarantee Agreement may only be amended or waived
by instrument in writing signed by X.X. Xxxxxx and the Guarantee Trustee with
the prior approval of the Holders of not less than a majority in Principal
Amount of all Preferred Securities then outstanding. The provisions of Section
12.02 of the Declaration concerning meetings of Holders shall apply to the
giving of such approval.
SECTION 9.03. Notices. Any notice, request or other
communication required or permitted to be given hereunder to X.X. Xxxxxx shall
be given in writing by mail or by facsimile transmission (followed by mail),
addressed to X.X. Xxxxxx, as follows:
(a) if given to X.X. Xxxxxx, to the address set forth below or
such other address as X.X. Xxxxxx may give notice of to the Holders:
X.X. Xxxxxx & Co. Incorporated
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile No.: (000) 000-0000
Attention: Assistant Secretary
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(b) if given to the Guarantee Trustee, to the address set
forth below or such other address as the Guarantee Trustee may give
notice to the Holders:
First Trust of New York, National Association
000 Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust Administration
(c) if given to any Holder of Preferred Securities, at the
address set forth on the books and records of the Trust relating to
such series.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 9.04. Genders. The masculine, feminine and neuter
genders used herein shall include the masculine, feminine and neuter genders.
SECTION 9.05. Benefit. This Guarantee Agreement is solely for
the benefit of the Holders and, subject to Section 3.01(a), is not separately
transferable from the Preferred Securities.
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SECTION 9.06. Governing Law. THIS GUARANTEE AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS).
SECTION 9.07. Counterparts. This Guarantee Agreement may be
executed in counterparts, each of which shall be an original; but such
counterparts shall together constitute one and the same instrument.
[SECTION 9.08. Exercise of Overallotment Option. If and to
the extent that any Preferred Securities are issued by the Trust upon exercise
of the overallotment option referred to the third WHEREAS clause, X.X. Xxxxxx
agrees to give prompt notice thereof to the Guarantee Trustee but the failure to
give such notice shall not relieve X.X. Xxxxxx of any of its obligations
hereunder.]
IN WITNESS WHEREOF, this Guarantee Agreement is executed as of
the day and year first above written.
X.X. XXXXXX & CO.
INCORPORATED,
By _________________________
Name:
Title:
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION, as
Guarantee Trustee,
By _________________________
Name:
Title:
00
XXXXX XX XXX XXXX )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this
[ ] day of [ ], 199_, personally appeared
of X.X. Xxxxxx & Co. Incorporated, known to me (or proved to me by introduction
upon the oath of a person known to me) to be the person and officer whose name
is subscribed to the foregoing instrument, and acknowledged to me that he/she
executed the same as the act of such trust for the purposes and consideration
herein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS [ ] DAY OF [ ], 199_.
{SEAL}
--------------------------------
NOTARY PUBLIC, STATE OF NEW YORK
Print Name:
--------------------
Commission Expires:
-------------
00
XXXXX XX XXX XXXX )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this [ ] day of
[ ], 199_ , personally appeared [ ] of First Trust
of New York, National Association, known to me (or proved to me by introduction
upon the oath of a person known to me) to be the person and officer whose name
is subscribed to the foregoing instrument, and acknowledged to me that he/she
executed the same as the act of such trust for the purposes and consideration
herein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS [ ] DAY OF [ ], 199_.
{SEAL}
--------------------------------
NOTARY PUBLIC, STATE OF NEW YORK
Print Name:
--------------------
Commission Expires:
------------
