EXHIBIT 99.2
GUARANTEE, dated as of March 23, 2008 (the "Guarantee"), made by JPMorgan
Chase & Co. ("Guarantor") in favor of the Federal Reserve Bank of New York (the
"Bank").
WHEREAS, Guarantor and The Bear Xxxxxxx Companies Inc. ("BSC") entered
into an Agreement and Plan of Merger, dated as of March 16, 2008, as may be
amended, modified, restated and/or supplemented from time to time (the "Merger
Agreement");
WHEREAS, in connection with the transactions contemplated by the Merger
Agreement, Guarantor agrees to execute and deliver to the Bank this Guarantee;
WHEREAS, in consideration of providing this Guarantee, BSC and certain of
its affiliates shall enter into that certain Guaranty and Collateral Agreement
to be dated March 24, 2008, among Guarantor, BSC and certain of the subsidiaries
of BSC;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the sufficiency of which is hereby acknowledged,
Guarantor agrees as follows:
1. Definitions:
Business Day means any day the Bank is open for conducting all or
substantially all of its banking functions.
Covered BSC Entities means Bear, Xxxxxxx & Co. Inc., which is one of the
designated primary dealers with which the Bank, among other things, trades U.S.
government and other select securities, and any other affiliate of BSC with
present or future obligations or liabilities to the Bank, and any permitted
successors thereto.
Expiry Date means the later to occur of (i) the termination of the Merger
Agreement in accordance with its terms and (ii) three (3) Business Days after a
written notice of termination of this Guarantee has been received by the Bank.
Obligations means (1) all present and future liabilities and obligations,
due or to become due, of the Covered BSC Entities to the Bank under revolving
credit or term loan facilities or other loan arrangements, whether secured or
unsecured, absolute or contingent, liquidated or unliquidated,
intraday/daylight, overnight, short or long term, in respect of extensions of
credit to any of the Covered BSC Entities that are in existence as of the date
hereof and provided on Schedule I hereto or that may arise or exist at any time
from the date hereof until the Expiry Date, and (2) all present and future
liabilities and obligations, due or to become due, of the Covered BSC Entities
to the Bank, whether absolute or contingent, liquidated or unliquidated,
intraday/daylight, overnight, short or long term, that are in existence as of
the date hereof and provided on Schedule I hereto or that may arise or exist at
any time from the date hereof until the Expiry Date, to the extent that such
liabilities or obligations arise under the terms of: 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), forward contracts, repurchase or reverse repurchase
agreements, swap agreements, options, foreign exchange and currency contracts,
options or other derivatives (whether or not such derivative contracts are
financially or physically settled),
settlement or clearing contracts or other contracts or transactions similar to
any of 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. For the avoidance of doubt, the parties hereto agree that
Schedule I shall set forth the liabilities and obligations of the Covered BSC
Entities to the Bank as of the date of this Guarantee.
2. Guarantee. (a) Guarantor absolutely, unconditionally and irrevocably
guarantees to the Bank the prompt and complete payment and performance by the
Covered BSC Entities when due (whether at stated maturity, by acceleration or
otherwise) of all the Obligations; provided, however, that prior to making any
demand for payment under this Guarantee, the Bank shall reasonably pursue its
rights and remedies against any collateral security for the Obligations and
shall apply any amount which it reasonably recovers from such collateral in
payment of the Obligations.
(b) This Guarantee shall remain in full force and effect until all
the Obligations and the obligations of the Guarantor hereunder shall have been
satisfied by payment in full.
(c) No payment made by any of the Covered BSC Entities, Guarantor,
any other guarantor or any other person or received or collected by the Bank
from any of the Covered BSC Entities, Guarantor, any other guarantor or any
other person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in reduction of or
in payment of any of the Obligations shall be deemed to modify, reduce, release
or otherwise affect the liability of Guarantor hereunder, which shall,
notwithstanding any such payment (other than any payment made by Guarantor or
any Covered BSC Entity in respect of the Obligations or any payment received or
collected from Guarantor or any Covered BSC Entity in respect of the
Obligations), remain liable for the Obligations up to the maximum liability of
Guarantor hereunder until all of the Obligations are paid in full.
3. Subrogation. If Guarantor shall pay any of the Obligations hereunder
(or the Bank shall set off against or apply any funds of Guarantor in payment of
the Obligations), Guarantor shall be subrogated to any of the rights of the Bank
against any of the Covered BSC Entities or any collateral security or guarantee
or right of offset held by the Bank for the payment of the Obligations up to the
amount so paid by Guarantor or the amount of Guarantor's funds set off or
applied by the Bank, provided, however, that Guarantor shall not be entitled to
enforce, or to receive any payments arising out of, such right of subrogation
until all Obligations shall have been paid in full. If any amount shall be paid
to Guarantor on account of such subrogation rights at any time when all of the
Obligations shall not have been paid in full, such amount shall be held by
Guarantor in trust for the Bank, segregated from other funds of Guarantor, and
shall, forthwith upon receipt by Guarantor, be turned over to the Bank in the
exact form received by Guarantor (duly indorsed by Guarantor to the Bank, if
required), to be applied against the Obligations, whether matured or unmatured,
in such order as the Bank may determine.
4. Continuing Obligation. Guarantor shall remain obligated hereunder
notwithstanding that, without any reservation of rights against Guarantor and
without notice to or further assent by Guarantor, any demand for payment of any
of the Obligations made by the Bank may be rescinded by the Bank and any of the
Obligations continued, and the Obligations,
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or the liability of any other person upon or for any part thereof, or any
collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised or waived by the Bank, and the
instruments or documents executed and delivered in connection with the
Obligations may be amended, modified or supplemented, in whole or in part, as
the Bank may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by the Bank for the payment of the
Obligations may be sold, exchanged, waived, surrendered or released.
5. Absolute and Unconditional. (a) Guarantor waives any and all notice of
the creation, renewal, extension or accrual of any of the Obligations and notice
of or proof of reliance by the Bank upon this Guarantee or the acceptance of
this Guarantee. The Obligations, and any of them, shall conclusively be deemed
to have been created, contracted or incurred, or renewed, extended, amended or
waived, in reliance upon this Guarantee. All dealings between any of the Covered
BSC Entities and Guarantor, on the one hand, and the Bank, on the other hand,
likewise shall be conclusively presumed to have been had or consummated in
reliance upon this Guarantee.
(b) Guarantor waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon any of the Covered BSC
Entities or Guarantor with respect to the Obligations.
(c) Guarantor understands and agrees that the guarantee contained in
this Guarantee shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (i) the genuineness, validity,
regularity, discharge, release or enforceability of any instrument or document
evidencing any of the Obligations, any of the Obligations or any other
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the Bank, or Guarantor's
obligations hereunder, (ii) any defense, set-off or counterclaim (other than a
defense of payment or performance) which may at any time be available to or be
asserted by any of the Covered BSC Entities or any other person against the
Bank, (iii) whether any or all Obligations, at any particular time, shall have
been paid in full, or (iv) any other circumstance whatsoever (with or without
notice to or knowledge of any of the Covered BSC Entities or Guarantor) which
constitutes, or might be construed to constitute, an equitable or legal
discharge of any of the Covered BSC Entities for any of the Obligations, or of
Guarantor under this Guarantee, in bankruptcy or in any other instance.
(d) This Guarantee is a guarantee of payment and not collection, and
when making any demand hereunder or otherwise pursuing its rights and remedies
hereunder against Guarantor, the Bank may, but shall be under no obligation to,
make a similar demand on or otherwise pursue such rights and remedies as it may
have against any of the Covered BSC Entities or any other person or against any
collateral security or guarantee for the Obligations or any right of offset with
respect thereto (except as otherwise expressly set forth in Section 2(a)
herein), and any failure by the Bank to make any such demand, to pursue such
other rights or remedies or to collect any payments from any of the Covered BSC
Entities or any other person or guarantee or to exercise any such right of
offset, or any release of any of the Covered BSC Entities or any other person
guarantee or right of offset, shall not relieve Guarantor of any obligation or
liability hereunder, and shall not impair or affect the rights and remedies,
whether
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express, implied or available as a matter of law, of the Bank against Guarantor.
For the purposes hereof "demand" shall include the commencement and continuance
of any legal proceedings.
(e) The Bank shall not by any act (except in writing as provided
herein), delay, indulgence, omission or otherwise, be deemed to have waived any
right or remedy herein or to have acquiesced in any default under the
Obligations or hereunder. No failure of the Bank to exercise, and no delay by
the Bank in exercising, any right, remedy, privilege or power hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise by the
Bank of any right, remedy, privilege or power hereunder preclude any other or
future exercise thereof or the exercise of any other right, remedy, privilege or
power. A waiver by the Bank of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which the Bank would
otherwise have on any future occasion.
(f) Each and every right, remedy, privilege and power provided
herein to the Bank or allowed it by law or other agreement shall be cumulative
and not exclusive of any other right, remedy, privilege or power, and may be
exercised by the Bank singly or concurrently at any time and from time to time.
(g) Until payment in full of the Obligations, Guarantor's liability
hereunder shall not be released.
6. Reinstatement. This Guarantee 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 is rescinded or must otherwise be restored or returned by
the Bank upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of any of the Covered BSC Entities or Guarantor, or upon or as a
result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, any of the Covered BSC Entities or Guarantor, or
any substantial part of its property, or otherwise, all as though such payments
had not been made.
7. Payments. Guarantor hereby guarantees that payments hereunder will be
paid to the Bank without set-off or counterclaim in immediately available funds.
8. Expiry. This Guarantee shall expire at 5:00 p.m. (New York City time)
on the Expiry Date. The expiry of this Guarantee does not release Guarantor from
its obligations in this Guarantee with respect to the Obligations. The expiry of
this Guarantee does not affect any provision of this Guarantee or any
documentation evidencing any of the Obligations which by its term survives the
expiry hereof.
9. Representations and Warranties. Guarantor hereby represents and
warrants that:
(a) it is duly organized, validly existing and in good standing
under the laws of the State of Delaware;
(b) the execution, delivery and performance of this Guarantee are
within its corporate powers and have been duly authorized by all necessary
action of its directors;
(c) each person executing this Guarantee has the authority to
execute and deliver this Guarantee on its behalf; and
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(d) this Guarantee has been duly executed and delivered by Guarantor
and constitutes a legal, valid and binding obligation of Guarantor, enforceable
against Guarantor in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
10. Enforcement Expenses; Indemnification. (a) Guarantor agrees to pay or
reimburse the Bank for all its reasonable costs and expenses incurred in
collecting against Guarantor under this Guarantee or otherwise enforcing or
preserving any rights hereunder.
(b) The agreements in this Section 10 shall survive repayment of the
Obligations and all other amounts payable under this Guarantee.
11. Amendments. The terms or provisions of this Guarantee may be amended,
waived, supplemented or otherwise modified only by an instrument in writing
signed by an authorized signatory of both the Bank and Guarantor.
12. Notices. (a) Any notice or other communication in respect of this
Guarantee may be given in any manner set forth below to the addresses or numbers
or in accordance with the e-mail or electronic messaging system details provided
in this Guarantee with respect to the receiving party (the "recipient") and will
be deemed effective as indicated:
(i) if in writing and delivered in person or by courier, on the
date it is delivered;
(ii) if sent by facsimile transmission, on the date that
transmission is received in legible form (it being agreed that
the burden of proving receipt will be on the sender and will
not be met by a transmission report generated by the sender's
facsimile machine);
(iii) if sent by certified or registered mail (airmail, if overseas)
or the equivalent (return receipt requested), on the date that
mail is delivered or its delivery is attempted;
(iv) if sent by electronic messaging system, on the date that
electronic message is received; or
(v) if sent by e-mail, on the date that e-mail is delivered,
unless the date of the delivery (or attempted delivery), the receipt or the
occurrence, as applicable, is not a Business Day or that communication is
delivered (or attempted), received or shall have occurred, as applicable, after
the close of business on a Business Day, in which case that communication shall
be deemed given and effective on the first following day that is a Business Day.
(b) If the recipient is the Guarantor, notices and communications should be sent
to JPMorgan Chase Bank, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxx
X.
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Xxxxxx (Facsimile: (000) 000-0000; Email: xxxxxxx.x.xxxxxx@xxxxxxxx.xxx).
(c) If the recipient is the Bank, notices and communications should
be sent to the Federal Reserve Bank of New York, 00 Xxxxxxx Xxxxxx, Xxx Xxxx, XX
00000, Attention: Xxxxxx X. Xxxxxx, Xx., General Counsel (Facsimile: (212)
720-2252; Email: xxxxxx.xxxxxx@xx.xxx.xxx).
13. Successors and Assigns. This Guarantee shall be binding upon the
successors and assigns of Guarantor and shall inure to the benefit of the Bank
and its successors and assigns; provided that Guarantor may not assign, transfer
or delegate any of its rights or obligations under this Guarantee without the
prior written consent of the Bank.
14. Severability. Any provision of this Guarantee which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
15. Section Headings. The Section headings used in this Guarantee are for
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
16. GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
17. SUBMISSION OF JURISDICTION. GUARANTOR SUBMITS IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO OR ARISING OUT OF THIS GUARANTEE, OR THE CONDUCT OF ANY
PARTY WITH RESPECT THEREFOR OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT
IN RESPECT THEREOF, TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL DISTRICT COURT
LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY AND ANY APPELLATE COURT
THEREOF. GUARANTOR AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED
MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO THE
ADDRESS PROVIDED IN THIS GUARANTEE; AND AGREES THAT NOTHING HEREIN SHALL AFFECT
THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
SHALL LIMIT THE RIGHT TO XXX IN ANY OTHER JURISDICTION. GUARANTOR IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT, ACTION, OR PROCEEDING BROUGHT
IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. GUARANTOR ALSO AGREES
THAT A FINAL JUDGMENT IN ANY SUCH SUIT, ACTION, OR PROCEEDING BROUGHT IN SUCH
COURT SHALL BE CONCLUSIVE AND BINDING UPON IT.
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18. WAIVER OF JURY TRIAL. GUARANTOR AND THE BANK EACH HEREBY
UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, COUNTERCLAIM, OR CROSS CLAIM ARISING IN CONNECTION WITH, OUT OF,
OR OTHERWISE RELATING TO THIS GUARANTEE, THE COLLATERAL OR ANY TRANSACTION OR
AGREEMENT ARISING THEREFROM OR RELATED THERETO.
19. Integration. This Guarantee represents the agreement of the parties
hereto with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Bank relative to the subject
matter hereof not expressly set forth or referred to herein.
20. Counterparts. This Guarantee may be executed by one or more of the
parties to this Guarantee on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
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IN WITNESS WHEREOF, this Guarantee has been executed by the undersigned as
of the date first written above.
JPMORGAN CHASE & CO., as Guarantor
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Chairman and Chief Executive Officer
FEDERAL RESERVE BANK OF NEW YORK,
as the Bank
By: /s/ Xxxxxxx X. Geithner
--------------------------------
Name: Xxxxxxx X. Geithner
Title: President
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