EXHIBIT [ ]
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of , 1996, between X.X. Xxxxxx
& Co. Incorporated, a Delaware corporation ("X.X.
Xxxxxx"), and X.X. Xxxxxx Index Funding Company, LLC, a
Delaware limited liability company (the "Company").
WHEREAS, the Company intends to issue its common limited
liability company interests (the "Common Securities") to and receive
related capital contributions from X.X. Xxxxxx and X.X. Xxxxxx Ventures
Corporation and to issue and sell from time to time, in one or more series,
preferred limited liability company interests (the "Preferred Securities")
with such powers, preferences and special rights and restrictions as are
set forth in a written action or actions of the managing members of the
Company providing for the issue of such series; and
WHEREAS, X.X. Xxxxxx will directly or indirectly own all of the
Common Securities of the Company;
NOW THEREFORE, in consideration of the purchase by each holder of
the Preferred Securities, which purchase X.X. Xxxxxx hereby agrees shall
benefit X.X. Xxxxxx and which purchase X.X. Xxxxxx acknowledges will be
made in reliance upon the execution and delivery of this Agreement, X.X.
Xxxxxx and the Company hereby agree as follows:
ARTICLE I
SECTION 1.01. Guarantee by X.X. Xxxxxx. Subject to the terms and
conditions hereof, X.X. Xxxxxx hereby irrevocably and unconditionally
guarantees (the "Guarantee") to each person or entity to whom the Company
is now or hereafter becomes indebted or liable for the payment of money
(the "Beneficiaries") (other than obligations or liabilities to holders (or
former holders) of any Preferred Securities or any other limited liability
company interests in the Company, in or by virtue of such holders'
capacities as holders (or former holders) of such Preferred Securities or
other limited liability company interests) the full payment, when and as
due, of any and all indebtedness and
liabilities of the Company to such Beneficiaries (collectively, the
"Obligations"). X.X. Xxxxxx further agrees to provide funds to the Company
in the amount sufficient to fund such Obligations, without duplication of
any amounts paid directly by X.X. Xxxxxx pursuant to the Guarantee, as and
to the extent such Obligations become payable by the Company. This
Agreement is intended to be for the benefit of, and to be enforceable by,
all such Beneficiaries, whether or not such Beneficiaries have received
notice hereof.
SECTION 1.02. Term of Agreement. This Agreement shall terminate
and be of no further force and effect upon the later of (i) the date on
which full payment has been made of all amounts payable to all holders of
all series of the Preferred Securities (whether upon redemption,
liquidation, exchange or otherwise) and (ii) the date on which there are no
Beneficiaries remaining; provided, however, that this Agreement shall
continue to be effective or shall be reinstated, as the case may be, if at
any time any holder of Preferred Securities of any series or any
Beneficiary must restore payment of any sums paid under the Preferred
Securities of such series, under any Obligation, under the Guarantee
Agreement dated the date hereof and executed and delivered by X.X. Xxxxxx
or under this Agreement for any reason whatsoever. This Agreement is
continuing, irrevocable, unconditional and absolute.
SECTION 1.03. Waiver of Notice. X.X. Xxxxxx hereby waives notice
of acceptance of this Agreement and of any Obligation to which it applies
or may apply, and X.X. Xxxxxx hereby waives presentment, demand for
payment, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
SECTION 1.04. No Impairment. The obligations, covenants,
agreements and duties of X.X. Xxxxxx under this 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 extension of time for the payment of the Company of all
or any portion of the Obligations or for the performance of any other
obligation under, arising out of, or in connection with, the
Obligations;
(b) any failure, omission, delay or lack of diligence on the part
of the Beneficiaries to enforce, assert or exercise any right,
privilege, power or
remedy conferred on the Beneficiaries with respect to the
Obligations or any action on the part of the Company granting
indulgence or extension of any kind; or
(c) 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 Company or any of the assets of the Company.
There shall be no obligation of the Beneficiaries to give notice
to, or obtain the consent of, X.X. Xxxxxx with respect to the happening of
any of the foregoing.
SECTION 1.05. Enforcement. A Beneficiary may enforce this
Agreement directly against X.X. Xxxxxx and X.X. Xxxxxx waives any right or
remedy to require that any action be brought against the Company or any
other person or entity before proceeding against X.X. Xxxxxx.
ARTICLE II
SECTION 2.01. Binding Effect. All guarantees and agreements
contained in this Agreement shall bind the successors, assigns, receivers,
trustees and representatives of X.X. Xxxxxx and shall inure to the benefit
of the Beneficiaries.
SECTION 2.02. Amendment. So long as there remains any Beneficiary
or any Preferred Securities of any series are outstanding, this Agreement
shall not be modified or amended in any manner adverse to such Beneficiary
or to the holders of the Preferred Securities.
SECTION 2.03. Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be given in writing by
delivering the same against receipt therefor by facsimile transmission
(confirmed by mail), telex or by registered or certified mail, addressed as
follows:
X.X. XXXXXX INDEX FUNDING COMPANY, LLC,
c/o: X.X. XXXXXX & CO. INCORPORATED
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Facsimile No: (000) 000-0000
Attention: Commodities Desk
Section 2.04. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, this Agreement is executed as of the day and
year first above written.
X.X. XXXXXX & CO.
INCORPORATED,
by
----------------------------
Name:
Title:
X.X. XXXXXX INDEX FUNDING
COMPANY, LLC,
By X.X. XXXXXX & CO.
INCORPORATED, as managing
member,
by
------------------------------
Name:
Title:
