Exhibit 9
GUARANTY
THIS GUARANTY, dated as of May 11, 2004 is made by Canadian Imperial
Bank of Commerce, a Canadian chartered bank (the "Guarantor"), in favor of
Citibank, N.A. (and each of its branches wherever located) and each subsidiary
or affiliate thereof ("Citigroup").
WHEREAS, CIBC Investments Limited, a Canadian corporation ("CIL") and
Citibank N.A., a bank organized under the laws of the United States
("Citibank"), have entered into an agreement entitled Master Terms and
Conditions for Collar Transactions dated as of May 11, 2004 (the "Master
Collar Confirmation") pursuant to which CIL and Citibank will enter into
option transactions from time to time (each a "Transaction" and collectively,
the "Transactions") under Supplemental Confirmations (as defined in the Master
Collar Confirmation) (the Master Confirmation as supplemented by the
Supplemental Confirmation for a particular Transaction being referred to as
the "Confirmation" for such Transaction); and
WHEREAS, CIL and Citibank have entered into the Master Pledge
Agreement dated as of May 11, 2004 (the "Pledge Agreement") pursuant to which
CIL will deliver collateral to secure all of CIL's obligations to Citibank
under the Pledge Agreement and under each Confirmation;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and to induce Citibank, N.A. to
enter into the Master Collar Confirmation, each Supplemental Confirmation and
the Pledge Agreement (collectively, as amended, supplemented and otherwise
modified from time to time, the "Transaction Agreements"), the Guarantor
agrees as follows:
1. Guaranty. The Guarantor unconditionally guarantees the punctual
fulfillment when due, whether upon expiration of any Transaction, by early
termination of any Transaction or otherwise, of all payment or delivery
obligations (now or hereafter existing) of CIL to Citigroup under the
Transaction Agreements, whether for payment of cash or delivery of Shares, as
defined in the Master Collar Confirmation, or otherwise, in each case strictly
in accordance with the terms thereof (all such obligations being the
"Obligations"); provided that, if any Obligations are denominated in a
currency other than U.S. Dollars, such amount will be increased to the extent
that fluctuations of currency conversion rates occurring after the date hereof
result in an increase in the equivalent of such Obligations in U.S. Dollars.
If CIL fails to fulfill any Obligation in full when due (whether at stated
expiration, by early termination or otherwise), the Guarantor will promptly
pay or deliver, as the case may be, the same to Citigroup. The Guarantor will
also pay to Citigroup any and all expenses (including without limitation,
reasonable legal fees and expenses) incurred by Citigroup in enforcing its
rights under this Guaranty. This Guaranty is a guaranty of payment and
delivery and not merely of collection.
2. Guaranty Absolute. The Guarantor's liability under this Guaranty
is unconditional irrespective of (i) any illegality, lack of validity or
enforceability of any Obligation, (ii) any amendment, modification, waiver or
consent to departure from the terms of any Obligation, including any renewal
or extension of the time or change of the manner or place of payment or
delivery, (iii) any exchange, substitution, release, non-perfection or
impairment of any collateral securing payment or performance of any
Obligation, (iv) any change in the corporate existence, structure or ownership
of CIL, or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting CIL or its assets or any resulting release or discharge
of any Obligation, (v) the existence of any claim, set-off or other rights
that the Guarantor may have at any time against CIL, Citigroup, or any other
corporation or person, whether in connection herewith or any unrelated
transactions, provided that nothing herein will prevent the assertion of any
such claim by separate suit or compulsory counterclaim, (vi) any law,
regulation, decree or order of any jurisdiction, or any other event, affecting
any term of any Obligation or Citigroup's rights with respect thereto,
including, without limitation: (A) the application of any such law,
regulation, decree or order, including any prior approval, which would prevent
the exchange of a Non-USD Currency (as hereinafter defined) for U.S. Dollars
or the
remittance of funds outside of such jurisdiction or the unavailability of U.S.
Dollars in any legal exchange market in such jurisdiction in accordance with
normal commercial practice; or (B) a declaration of banking moratorium or any
suspension of payments by banks in such jurisdiction or the imposition by such
jurisdiction or any governmental authority thereof of any moratorium on, the
required rescheduling or restructuring of, or required approval of payments
on, any indebtedness in such jurisdiction; or (C) any expropriation,
confiscation, nationalization or requisition by such country or any
governmental authority that directly or indirectly deprives CIL of any assets
or their use or of the ability to operate its business or a material part
thereof; or (D) any war (whether or not declared), insurrection, revolution,
hostile act, civil strife or similar events occurring in such jurisdiction
which has the same effect as the events described in clause (A), (B) or (C)
above (in each of the cases contemplated in clauses (A) through (D) above, to
the extent occurring or existing on or at any time after the date of this
Guaranty), and (vii) any other circumstance (including, without limitation,
any statute of limitations) or any existence of or reliance on any
representation by Citigroup that might otherwise constitute a defense
available to, or a legal or equitable discharge of, CIL or the Guarantor or
any other guarantor or surety.
It is the intent of this Section 2 that the Guarantor's obligations
hereunder are and shall be absolute and unconditional under any and all
circumstances.
3. Waiver. The Guarantor waives promptness, diligence, notice of
acceptance, notice of dishonor and any other notice with respect to any
Obligation and this Guaranty and any requirement that Citigroup exercise any
right or take any action against CIL or any collateral security or credit
support.
4. Reinstatement. This Guaranty will continue to be effective or be
reinstated, as the case may be, if at any time any payment of any Obligation
is rescinded or must otherwise be returned by Citigroup upon the insolvency,
bankruptcy or reorganization of CIL or otherwise, all as though such payment
had not been made.
5. Subrogation. The Guarantor will not assert, enforce or otherwise
exercise any rights which it may acquire by way of subrogation under this
Guaranty, by any payment or delivery made hereunder or otherwise, until
payment or performance, as the case may be, in full of the Obligations and the
termination of any and all Transaction Agreements.
6. Taxes. Any and all payments by the Guarantor hereunder will be
made free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding income or franchise taxes imposed
on Citigroup's net income by the jurisdiction under the laws of which
Citigroup is organized or any political subdivision thereof or by the
jurisdiction of Citigroup's lending office or any political subdivision
thereof (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being "Taxes"). If the Guarantor is required by
law to deduct any Taxes from or in respect of any sum payable hereunder (i)
the sum payable will be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums
payable under this Section) Citigroup will receive an amount equal to the sum
it would have received had no such deductions been made, (ii) the Guarantor
will make such deductions, and (iii) the Guarantor will pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law. In addition, the Guarantor will pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Guaranty or the Obligations ("Other Taxes"). The Guarantor will promptly
furnish to Citigroup the original or a certified copy of a receipt evidencing
payment thereof. The Guarantor will indemnify Citigroup for the full amount of
Taxes or Other Taxes paid by Citigroup or any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto within 30
days of Citigroup's request therefor. Without prejudice to the survival of any
other agreement contained herein, the
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Guarantor's agreements and obligations contained in this Section will survive
the payment in full of the Obligations, principal and interest hereunder and
any termination of this Guaranty.
Notwithstanding anything to the contrary contained herein or in any
document or agreement evidencing an Obligation, the Guarantor and Citigroup
(and each of their respective employees, representatives or other agents) may
disclose to any and all persons, without limitation of any kind, the U.S. tax
treatment and U.S. tax structure of the transactions contemplated hereby and
all materials of any kind (including opinions or other tax analyses) that are
provided to any of the foregoing persons relating to such U.S. tax treatment
and U.S. tax structure.
7. Place and Currency of Payment or Delivery. Except as provided
below, the Guarantor will make payment or delivery, as the case may be,
hereunder to Citigroup in U.S. Dollars at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
If any Obligation is payable in a currency other than U.S. Dollars (a "Non-USD
Currency") and/or at a place other than the United States, and such payment is
not made as and when agreed, the Guarantor will, at Citigroup's option, either
(i) make payment in such Non-USD Currency and at the place where such
Obligation is payable, or (ii) pay Citigroup in U.S. Dollars at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx. In the event of a payment pursuant to clause (ii)
above, the Guarantor will pay Citigroup the equivalent of the amount of such
Obligation in U.S. Dollars calculated at the rate of exchange at which, in
accordance with normal banking procedures, Citigroup may buy such Non-USD
Currency in New York, New York on the date the Guarantor makes such payment;
provided, however, that the foregoing provisions of this sentence shall not
apply to any payments hereunder in respect of Obligations that have been
re-denominated into a Non-USD Currency as a result of the application of any
law, order, decree or regulation in any jurisdiction other than the United
States, which Obligations shall, for purposes of this Guaranty, be deemed to
remain denominated in U.S. Dollars and payable to Citigroup in accordance with
the first sentence of this Section 7.
8. Set-Off. If the Guarantor fails to fulfill any of its payment or
delivery obligations hereunder when due and payable, Citigroup is authorized
at any time and from time to time, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held
and other indebtedness at any time owing by Citigroup to or for the
Guarantor's credit or account against any and all of the Obligations, whether
or not Citigroup has made any demand under this Guaranty. Citigroup will
promptly notify the Guarantor after any such set-off and application, provided
that the failure to give such notice will not affect the validity of such
set-off and application. Citigroup's rights under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that Citigroup may have.
9. Representations and Warranties. The Guarantor represents and
warrants that: (i) the execution, delivery and performance by the Guarantor of
this Guaranty are within its corporate powers, have been duly authorized by
all necessary corporate action, and do not contravene (x) its charter or
by-laws or (y) any law or any contractual restriction binding on or affecting
the Guarantor or any entity that controls it, (ii) no authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or any other third party is required for the due
execution, delivery and performance by the Guarantor of this Guaranty, (iii)
this Guaranty has been duly executed and delivered by the Guarantor and is its
legal, valid and binding obligation, enforceable against the Guarantor in
accordance with its terms, and (iv) the Guarantor is not an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940.
10. Continuing Guaranty. This is a continuing guaranty and applies to
all Obligations whenever arising. This Guaranty is irrevocable and will remain
in full force and effect until the payment or performance in full of the
Obligations and all amounts payable and all Shares (or other securities or
property) deliverable hereunder and the termination of all of the agreements
relating to the Obligations.
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11. Amendments, Etc. No amendment or waiver of any provision of this
Guaranty, and no consent to departure by the Guarantor herefrom, will in any
event be effective unless the same is in writing and signed by Citibank, N.A.,
on behalf of Citigroup, and then such waiver or consent will be effective only
in the specific instance and for the specific purpose for which given.
12. Addresses. All notices and other communications provided for
hereunder will be in writing (including telecopier communication), and mailed,
telecopied or delivered to it, if to the Guarantor, at its address at BCE
Place, 11th Floor, 000 Xxx Xxxxxx, Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0,
Telephone: 000-000-0000, Facsimile: 000-000-0000, Attention: Senior Vice
President, Capital Management, and if to Citigroup, at its address at
Citibank, N.A., 390 Greenwich Street, Equity Capital Markets - 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Telephone: 000-000-0000, Facsimile: 000-000-0000,
Attention: Equity Derivatives, with a copy to Citibank, N.A., 000 Xxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Telephone: 000-000-0000, Facsimile:
000-000-0000, Attention: GRB Legal Group-Derivatives, or, as to either party,
at such other address as is designated by such party in a written notice to
the other party. All such notices and other communications will, when mailed
or telecopied, be effective when deposited in the mails or telecopied,
respectively.
13. Guarantor's Credit Decision, Etc. The Guarantor has,
independently and without reliance on Citigroup and based on such documents
and information as the Guarantor has deemed appropriate, made its own credit
analysis and decision to enter into this Guaranty. The Guarantor has adequate
means to obtain from CIL on a continuing basis information concerning the
financial condition, operations and business of CIL, and the Guarantor is not
relying on Citigroup to provide such information now or in the future. The
Guarantor acknowledges that it will receive substantial direct and indirect
benefit from the Transactions entered into under the Master Collar
Confirmation.
14. Judgment. If for the purposes of obtaining judgment in any court
it is necessary to convert a sum due hereunder in U.S. Dollars into a Non-USD
Currency, the Guarantor agrees that the rate of exchange used will be that at
which, in accordance with normal banking procedures, Citigroup could purchase
U.S. Dollars with such Non-USD Currency on the business day preceding that on
which final judgment is given. The obligation of the Guarantor in respect of
any sum due hereunder will, notwithstanding any judgment in a Non-USD
Currency, be discharged only to the extent that on the date the Guarantor
makes payment to Citigroup of any sum adjudged to be so due in such Non-USD
Currency, Citigroup may, in accordance with normal banking procedures,
purchase U.S. Dollars with such Non-USD Currency; if the U.S. Dollars so
purchased are less than the sum originally due to Citigroup in U.S. Dollars,
the Guarantor agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify Citigroup against such loss, and if the U.S. Dollars so
purchased exceed the sum originally due to Citigroup in U.S. Dollars,
Citigroup agrees to remit to the Guarantor such excess.
15. Governing Law. This Guaranty shall be governed by, and construed
in accordance with, the law of the State of New York.
16. Consent to Jurisdiction, Etc. The Guarantor irrevocably (i)
submits to the non-exclusive jurisdiction of any New York State or Federal
court sitting in New York City in any action or proceeding arising out of or
relating to this Guaranty or the Obligations, (ii) agrees that all claims in
respect of such action or proceeding may be heard and determined in such New
York State court or in such Federal court, and (iii) waives, to the fullest
extent it may effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding. A final judgment in any such action
or proceeding will be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing herein
will affect Citigroup's right to serve legal process in any other manner
permitted by law or affect Citigroup's right to bring any action or proceeding
against the Guarantor or its
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property in the courts of other jurisdictions. To the extent that the
Guarantor has or hereafter may acquire any immunity from jurisdiction of any
court or from any legal process (whether through service or notice, attachment
prior to judgment, attachment in aid of execution, execution or otherwise)
with respect to itself or its property, the Guarantor irrevocably waives such
immunity in respect of its obligations under this Guaranty.
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17. WAIVER OF JURY TRIAL. THE GUARANTOR IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS GUARANTY OR
CITIGROUP'S ACTIONS IN THE NEGOTIATION, ADMINISTRATION OR ENFORCEMENT HEREOF.
CANADIAN IMPERIAL BANK OF COMMERCE
By /s/ Xxxxx Xxx
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Name: Xxxxx Xxx
Title: Senior Vice President
By /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Senior Executive Vice President,
Corporate Development
