EX. 99-1
EXECUTION VERSION
AMENDED AND RESTATED GUARANTY AGREEMENT
THIS AMENDED AND RESTATED GUARANTY AGREEMENT (this "Guaranty") is made
effective as of the 16th day of March, 2008, by JPMORGAN CHASE & CO. (the
"Guarantor"), a Delaware corporation headquartered in New York, New York.
WHEREAS, the Guarantor is a party to an Agreement and Plan of Merger with The
Bear Xxxxxxx Companies Inc. ("BSC"), dated as of March 16, 2008 (as amended
from time to time, the "Acquisition Agreement");
WHEREAS, as a condition precedent to entering into the Acquisition Agreement,
BSC requested that the Guarantor enter into a guaranty;
WHEREAS, the Guarantor entered into a Guaranty Agreement dated March 16, 2008
(the "Original Guaranty") and is entering into this Amended and Restated
Guaranty Agreement at the request of the Covered BSC Entities (as defined
below) to replace and make certain clarifications and additions to the
Original Guaranty (without in any way limiting the scope of any guaranties
provided under the Original Guaranty);
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the sufficiency of which is hereby acknowledged, the Guarantor
agrees as follows:
1. The Guarantor hereby unconditionally guaranties the due and punctual
payment of all Covered Liabilities of the Covered BSC Entities on the terms
set forth herein.
2. As used in this Guaranty:
(a) The term "Covered BSC Entities" means BSC and the affiliates of BSC
listed on Schedule 1 hereto. For the avoidance of doubt, Covered BSC Entities
does not include (x) any successor, assign or transferee of BSC or the
entities listed on Schedule 1, which successor, assign or transferee is not
an affiliate of the Guarantor, or (y) any subsidiary, affiliate, fund,
special purpose entity, variable interest entity, investment vehicle or other
entity owned (directly or indirectly), affiliated with or organized,
promoted, sponsored, managed or otherwise administered in any manner by BSC
or any BSC affiliate listed on Schedule 1 or in which BSC or any such BSC
affiliate has or has had a legal or beneficial interest or to which BSC or
any such affiliate has or has had economic exposure, in the case of each of
the foregoing clauses (x) and (y) unless such entity is listed on Schedule 1.
(b) The term "Covered Liabilities" means:
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(1) all liabilities and obligations under revolving credit facilities,
letters of credit and letter of credit facilities, term loan facilities,
lines of credit (including without limitation in connection with Trading
Contract activities) or uncommitted loan facilities, in each case whether
secured or unsecured (whether absolute or contingent, liquidated or
unliquidated, intraday/daylight, overnight, short or long term) of the
Covered BSC Entities in respect of extensions of credit to a Covered BSC
Entity made prior to the date hereof, made during the Guaranty Period, made
at any time pursuant to a commitment in effect as of the date hereof or made
at any time pursuant to a commitment entered into during the Guaranty Period
(in each case without giving effect to any amendment of such commitment
entered into after the Guaranty Period);
(2) all liabilities and obligations (whether absolute or contingent,
liquidated or unliquidated, intraday/daylight, overnight, short or long term)
of the Covered BSC Entities that arise from transactions that have been
entered into prior to the date hereof and all liabilities and obligations
(whether absolute or contingent, liquidated or unliquidated,
intraday/daylight, overnight, short or long term) of the Covered BSC entities
that arise from transactions that are entered into during the Guaranty
Period, in each case to the extent (and only to the extent) that such
liabilities or obligations arise under the terms of: prime brokerage
agreements and accounts, securities lending agreements, custodial and
carrying agreements, securities accounts and securities contracts (including
but not limited to contracts and related accounts for the purchase, sale,
loan or borrowing of a security or loan or a group or index of securities or
loans, or options with respect thereto or interests therein), commodity
contracts (including but not limited to contracts for storage, capacity,
transmission, freight, transportation and other ancillary services and
products), forward contracts, futures contracts, tolling agreements, energy
management agreements, repurchase or reverse repurchase agreements, swap
agreements, foreign exchange and currency contracts, options or other
derivatives (whether or not such derivative contracts are financially or
physically settled), settlement or clearing agreements and arrangements
(including but not limited to clearance or settlement for or by the Covered
BSC Entities and membership or participation in any settlement or clearing
system, organization or structure), margin loan agreements, other contracts
or transactions similar to any of the foregoing, any customary brokerage
commission with respect to the foregoing, any contractual obligation to
provide collateral or margin in respect of any of the foregoing or any
obligation under a guaranty of any of the foregoing (all of the foregoing in
this subsection 2(b)(2) collectively, whether exchange-traded or
over-the-counter, whether pursuant to a master agreement, confirmation or
otherwise and whether settled in cash, securities or otherwise, the "Trading
Contracts"); and
(3) all obligations to deliver cash, securities or other property then held
by an applicable Covered BSC Entity to customers pursuant to instructions
delivered to the applicable Covered BSC Entity during the Guaranty Period
pursuant to agreements or arrangements that provide for the customary custody
or safekeeping of cash, securities or other property;
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provided, however, that Covered Liabilities shall not include (i) any
liability or obligation of any kind or nature arising from a transaction
entered into after the expiration of the Guaranty Period (other than to the
extent provided in clause 2(b)(i) above with respect to extensions of credit
made after the Guaranty Period pursuant to commitments entered into prior to
or during the Guaranty Period), or (ii) any liability or obligation of any
kind or nature with respect to the Trading Contracts other than the
obligation to pay or perform, as applicable, the express terms thereof, it
being understood that liabilities in respect of compliance or noncompliance
with law or regulation, any actual or asserted non-contractual breach of duty
and any claim relating in any way to asset allocation or investment advice
shall all be deemed not to have arisen under the express terms of the
applicable Trading Contract.
(c) The term "Guaranty Period" means the period commencing on the date hereof
and ending on the End Date.
(d) The term "End Date" means the date specified by Guarantor in a public
notice posted on Guarantor's website at
xxxx://xxxxxxxx.xxxxxxxxxxx.xxx/xxxxxxxxxxxxx/xxxxxxxxxxxxx.xxx, which date
shall be no earlier than the first to occur of (i) the date that is 120 days
following the failure of BSC to receive the approval of BSC's stockholders
required by Section 7.1(a) of the Acquisition Agreement at a duly held
meeting of BSC stockholders convened for the purpose of approving and
adopting the Acquisition Agreement, (ii) the date that is 120 days following
closing of the transactions contemplated in the Acquisition Agreement and
(iii) the date of termination of the Acquisition Agreement pursuant to
Section 8.1 thereof, other than pursuant to Section 8.1(f). The Guarantor
agrees that it shall post the End Date on its website at least 72 hours prior
to the occurrence of the End Date.
3. Notwithstanding any other provision hereof, this Guaranty and the
obligations of the Guarantor hereunder shall terminate and be of no further
force or effect (and the Guarantor shall have no further liability hereunder)
on and as of the termination of the Acquisition Agreement pursuant to Section
8.1(e)(i) thereof. For the avoidance of doubt, the termination of the
Acquisition Agreement, other than pursuant to Section 8.1(e)(i), shall not
affect or impair the effectiveness of the guaranty provided herein with
respect to the Covered Liabilities of the Covered BSC Entities guarantied
hereunder or the obligations of the Guarantor hereunder with respect thereto.
4. The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of (i) the enforceability of the Covered
Liabilities against the applicable Covered BSC Entity as a result of a
bankruptcy, insolvency or like proceeding or otherwise, (ii) the absence of
any action to enforce the Covered Liabilities against the applicable Covered
BSC Entity, (iii) any amendment, waiver or consent by the applicable Covered
BSC Entity or the holder of a Covered Liability with respect to any provision
thereof or (iv) any other circumstance that might otherwise constitute a
legal or
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equitable discharge or defense of a surety or guarantor. The Guarantor hereby
waives promptness, diligence, presentment, demand of payment (provided that
the Guarantor may require confirmation by BSC or the applicable Covered BSC
Entity that the Covered Liability is due and payable and has not been
otherwise satisfied), filing of claims with any court, any right to require a
proceeding first against the applicable Covered BSC Entity, protest or notice
with respect to the applicable Covered Liability and all demands whatsoever,
and the Guarantor hereby covenants that this Guaranty will not be discharged
except by complete performance or payment of the obligations contained in the
applicable Covered Liability and in this Guaranty in accordance with the
terms thereof and hereof, respectively.
5. The Guarantor shall be subrogated to all rights against the applicable
Covered BSC Entity in respect of any amounts paid by the Guarantor pursuant
to the provisions of this Guaranty; provided, however, that the Guarantor
shall not be entitled to enforce, or to receive any payments arising out of,
such right of subrogation until the applicable Covered Liabilities shall have
been paid in full.
6. This Guaranty is a guaranty of payment when due and not of collection.
This Guaranty shall continue to be effective, or be reinstated, as the case
may be, in respect of any Covered Liabilities if at any time payment, or any
part thereof, of said Covered Liabilities is rescinded or must otherwise be
restored or returned by the applicable Covered BSC Entity or any trustee for
the applicable Covered BSC Entity, all as though such payments had not been
made. This Guaranty may be enforced directly by the holder of a Covered
Liability against the Guarantor exclusively in the courts of the state of New
York or in the United States District Court for the Southern District of New
York.
7. The obligations of the Guarantor hereunder shall not affect, impair or
limit any right of any Covered BSC Entity or any director, officer or
employee thereof under any insurance program, policy or contract, or release,
limit the liability of, or otherwise inure to the benefit of any insurer
thereunder.
8. All notices and other communications provided for hereunder shall be in
writing and telecopied to the Guarantor at:
JPMorgan Chase & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000-000-0000 (fax)
Attention: Xxxxx X. Xxxxx
with a copy to:
JPMorgan Chase & Co.
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000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000-000-0000 (fax)
Attention: General Counsel
9. This Guaranty shall be governed by and construed in accordance with the
laws of the State of New York.
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IN WITNESS WHEREOF JPMorgan Chase & Co. has caused the execution hereof in
its corporate name by its duly authorized officer.
JPMORGAN CHASE & CO.
By: /s/ Xxxxx Xxxxx
Xxxxx Xxxxx
Chairman and Chief Executive Officer
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Schedule 1 to Amended and Restated Guaranty Agreement
Covered BSC Entity
The Bear Xxxxxxx Companies Inc.
Bear, Xxxxxxx & Co. Inc.
Bear, Xxxxxxx Securities Corp.
Bear, Xxxxxxx International Limited
Bear Xxxxxxx Bank plc
Bear Xxxxxxx Global Lending Limited
Custodial Trust Company
Bear Xxxxxxx Financial Products Inc.
Bear Xxxxxxx Capital Markets Inc.
Bear Xxxxxxx Credit Products Inc.
Bear Xxxxxxx Forex Inc.
EMC Mortgage Corporation
Bear Xxxxxxx Commercial Mortgage, Inc.
Bear Energy LP
Bear Xxxxxxx Investment Products Inc.
Bear Xxxxxx
Bear Xxxxxxx Japan Ltd.
Bear Xxxxxxx Singapore Pte.
Bear Xxxxxxx Asia Limited
Delta Power Corp.
Bear Xxxxxxx Asset Management Inc.
Bear Xxxxxxx Asset Management Ltd.
Plymouth Park Tax Services LLC
Bear Xxxxxxx Mortgage Capital Corporation
Madison Tax Capital LLC
Bear Xxxxxxx Funding Inc.
Bear Xxxxxxx International Trading Limited
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Bear Xxxxxxx Hong Kong Ltd.
BE Allegheny LLC
BE CA LLC
BE Ironwood LLC
BE Red Oak LLC
BE Louisiana LLC
BE Alabama LLC
BE KJ LLC
Mohawk River Funding I LLC
Cedar Brakes I, LLC
Cedar Brakes II, LLC
BSTJ Inc.
BSMA Limited
Other trading and operating entities to be mutually agreed and to be added to
this Schedule by posting to Guarantor's website at
xxxx://xxxxxxxx.xxxxxxxxxxx.xxx/xxxxxxxxxxxxx/xxxxxxxxxxxxx.xxx
Schedule 1 to Guaranty Agreement
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