Guarantee Agreement by and between THE GOLDMAN SACHS GROUP, INC., as Guarantor and The Bank of New York, as Guarantee Trustee relating to GOLDMAN SACHS CAPITAL II Dated as of May 15, 2007
EXHIBIT
99.7
by and between
THE XXXXXXX XXXXX GROUP, INC.,
as Guarantor
as Guarantor
and
The Bank of New York,
as Guarantee Trustee
as Guarantee Trustee
relating to
XXXXXXX SACHS CAPITAL II
Dated as of May 15, 2007
THE XXXXXXX XXXXX GROUP, INC.
Certain Sections of this Guarantee Agreement relating to Sections 310 through 318, inclusive, of the Trust
Indenture Act of 1939:
| Trust Indenture | ||
| Act Section | Guarantee Section | |
§ 310(a)
|
4.1(a) | |
(b)
|
2.8, 4.1(c) | |
(c)
|
Not applicable | |
§ 311(a)
|
2.2(b) | |
(b)
|
2.2(b) | |
§ 312(a)
|
2.2(a) | |
(b)
|
2.2(b) | |
§ 313
|
2.3 | |
§ 314(a)
|
2.4 | |
(b)
|
Not applicable | |
(c)
|
2.5 | |
(d)
|
Not applicable | |
(e)
|
1.1, 2.4 | |
(f)
|
2.1, 3.2 | |
§ 315(a)
|
3.1(d) | |
(b)
|
2.7 | |
(c)
|
3.1(c) | |
(d)
|
3.1(d) | |
(e)
|
Not applicable | |
§ 316(a)
|
1.1, 2.6, 5.4 | |
(b)
|
5.3 | |
(c)
|
Not applicable | |
§ 317(a)
|
Not applicable | |
(b)
|
Not applicable | |
§ 318(a)
|
2.1 | |
(b)
|
2.1 |
Note: This reconciliation and tie shall not, for any purpose be deemed to be part of the Guarantee
Agreement.
Table of Contents
| Page | ||||||
| ARTICLE I |
||||||
| Definitions |
||||||
Section 1.1
|
Definitions. | 1 | ||||
| ARTICLE II |
||||||
| Trust Indenture Act |
||||||
Section 2.1
|
Trust Indenture Act; Application | 4 | ||||
Section 2.2
|
List of Holders | 5 | ||||
Section 2.3
|
Reports by the Guarantee Trustee | 5 | ||||
Section 2.4
|
Periodic Reports to the Guarantee Trustee | 5 | ||||
Section 2.5
|
Evidence of Compliance with Conditions Precedent | 5 | ||||
Section 2.6
|
Events of Default; Waiver | 5 | ||||
Section 2.7
|
Events of Default; Notice | 6 | ||||
Section 2.8
|
Conflicting Interests | 6 | ||||
| ARTICLE III |
||||||
| Powers, Duties and Rights of the Guarantee Trustee |
||||||
Section 3.1
|
Powers and Duties of the Guarantee Trustee | 6 | ||||
Section 3.2
|
Certain Rights of Guarantee Trustee | 8 | ||||
Section 3.3
|
Compensation; Indemnity; Fees | 9 | ||||
| ARTICLE IV |
||||||
| Guarantee Trustee |
||||||
Section 4.1
|
Guarantee Trustee; Eligibility | 9 | ||||
Section 4.2
|
Appointment, Removal and Resignation of the Guarantee Trustee | 10 | ||||
| ARTICLE V |
||||||
| Guarantee |
||||||
Section 5.1
|
Guarantee | 11 | ||||
Section 5.2
|
Waiver of Notice and Demand | 11 | ||||
Section 5.3
|
Obligations Not Affected | 11 | ||||
Section 5.4
|
Rights of Holders | 12 | ||||
Section 5.5
|
Guarantee of Payment | 12 | ||||
Section 5.6
|
Subrogation | 12 | ||||
Section 5.7
|
Independent Obligations | 12 | ||||
-i-
| Page | ||||||
| ARTICLE VI |
||||||
| Covenants and Subordination |
||||||
Section 6.1
|
Subordination | 13 | ||||
Section 6.2
|
Pari Passu Guarantees | 13 | ||||
| ARTICLE VII |
||||||
| Termination |
||||||
Section 7.1
|
Termination | 13 | ||||
| ARTICLE VIII |
||||||
| Miscellaneous |
||||||
Section 8.1
|
Successors and Assigns | 13 | ||||
Section 8.2
|
Amendments | 14 | ||||
Section 8.3
|
Notices | 14 | ||||
Section 8.4
|
Benefit | 15 | ||||
Section 8.5
|
Governing Law | 15 | ||||
-ii-
Guarantee Agreement, dated as of May 15, 2007, between The
Xxxxxxx Xxxxx Group,
Inc., a Delaware corporation (the “Guarantor”), having its principal office at 00 Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000, and The Bank of New York, as trustee (the “Guarantee
Trustee”), for the benefit of the Holders from time to time of the Trust Preferred Securities of
Xxxxxxx Sachs Capital II, a Delaware statutory trust (the “Issuer Trust”).
Recitals of the Guarantor
Pursuant to an Underwriting Agreement, dated as of May 8, 2007, among the Guarantor, the
Issuer Trust and the underwriters named therein, the Issuer Trust is issuing $1,750,000,000
aggregate Liquidation Amount (as defined in the Declaration of Trust) of Trust Preferred Securities
having the terms set forth in an Amended and Restated Declaration of Trust, of even date herewith
(the “Declaration of Trust”), among The Xxxxxxx Xxxxx Group, Inc., as Sponsor, the Property
Trustee, the Delaware Trustee and the Administrative Trustees (each as named therein) and the
holders from time to time of the Trust Securities.
The Trust Preferred Securities will be issued by the Issuer Trust, and the proceeds thereof,
together with the proceeds from the issuance of the Issuer Trust’s Common Securities, will be used
to purchase the Notes, which initially will be pledged by the Issuer Trust, acting through The Bank
of New York, as Property Trustee for the Issuer Trust (the “Property Trustee”), to U.S. Bank
National Association, as collateral agent for the Guarantor, pursuant to the Collateral Agreement,
dated as of the date hereof, among the Guarantor, U.S. Bank National Association, as
Collateral Agent, Custodial Agent, Securities Intermediary and Securities Registrar, and the Issuer
Trust (acting through the Property Trustee).
As an incentive for the Holders to purchase the Trust Preferred Securities, the Guarantor irrevocably and unconditionally agrees, to the extent set forth herein, to pay to the
Holders of the Trust Preferred Securities the Guarantee Payments and to make certain other payments
on the terms and conditions set forth herein.
Now, therefore, this Guarantee Agreement Witnesseth: For and in consideration of the
purchase of Trust Preferred Securities by each Holder, which purchase the Guarantor hereby
acknowledges shall benefit the Guarantor, the Guarantor executes and delivers this Guarantee
Agreement for the benefit of the Holders from time to time.
ARTICLE I
Definitions
Section 1.1 Definitions.
For all purposes of this Guarantee Agreement, except as otherwise expressly provided or unless
the context otherwise requires:
(a) The terms defined in this Article have the meanings assigned to them in this Article, and
include the plural as well as the singular.
(b) All other terms used herein that are defined in the Trust Indenture Act, either directly
or by reference therein, have the meanings assigned to them therein.
Guarantee Agreement
(c) All accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles, and the term “generally accepted
accounting principles” with respect to any computation required or permitted hereunder shall mean
such accounting principles that are generally accepted in the United States at the date or time of
such computation; provided that when two or more principles are so generally accepted, it shall
mean that set of principles consistent with those in use by the Guarantor.
(d) The words “hereby,” “herein,” “hereof” and “hereunder” and other words of similar import
refer to this Guarantee Agreement as a whole and not to any particular Article, Section or other
subdivision.
(e) Unless the context otherwise requires, any reference to an “Article”, a “Section” or
another subdivision refers to an Article, a Section or another subdivisions, as the case may be, of
this Guarantee Agreement.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person; provided,
however, that the Issuer Trust shall not be deemed to be an Affiliate of the Guarantor. For the
purposes of this definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
“Authorized Officer” of any Person means any officer of such Person or any person authorized
by or pursuant to a resolution of the Board of Directors (or any committee or other equivalent body) of such Person.
“Base Indenture” has the meaning specified in the Declaration of Trust.
“Board of Directors” means either the board of directors of the Guarantor or any committee of
that board duly authorized to act hereunder.
“Capital APEX” has the meaning specified in the Declaration of Trust.
“Common Security” has the meaning specified in the Declaration of Trust.
“Declaration of Trust” means the Amended and Restated Declaration of Trust of the Issuer Trust
referred to in the recitals to this Guarantee Agreement, as modified, amended or supplemented from
time to time.
“Distributions” has the meaning specified in the Declaration of Trust.
“Event of Default” means (i) a default by the Guarantor in any of its payment obligations
under this Guarantee Agreement or (ii) a default by the Guarantor in any other obligation hereunder
that remains unremedied for 30 days.
“Guarantee Agreement” means this Guarantee Agreement, as modified, amended or supplemented
from time to time.
“Guarantee Payments” means the following payments or distributions, without duplication, with
respect to the Trust Preferred Securities of any Series, to the extent not paid or made by or on
behalf of the Issuer Trust: (i) any accumulated and unpaid Distributions required to be paid on the
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Trust Preferred Securities of such Series, to the extent the Issuer Trust shall have funds on
hand available therefor at such time; (ii) the Redemption Price with respect to any Trust Preferred
Securities called for redemption by the Issuer Trust (other than in connection with the redemption
of Capital APEX in exchange for Notes), to the extent the Issuer Trust shall have funds on hand
available therefor at such time; and (iii) upon a voluntary or involuntary dissolution, winding-up
or liquidation of the Issuer Trust, other than in connection with the distribution of a Like Amount
of Corresponding Assets (as defined in the Declaration of Trust) to the Holders of Trust Preferred
Securities and Trust Common Securities, the lesser of (a) the Liquidation Distribution with respect
to each Series of the Trust Preferred Securities, to the extent that the Issuer Trust shall have
funds on hand available therefor at such time and (b) the amount of assets of the Issuer Trust
remaining available for distribution to Holders of the Trust Preferred Securities on liquidation of
the Issuer Trust.
“Guarantee Trustee” means The Bank of New York, solely in its capacity as Guarantee Trustee
and not in its individual capacity, until a Successor Guarantee Trustee has been appointed and has
accepted such appointment pursuant to the terms of this Guarantee Agreement, and thereafter means
each such Successor Guarantee Trustee.
“Guarantor” has the meaning specified in the first paragraph of this Guarantee Agreement.
“Holder” means any Holder (as defined in the Declaration of Trust) of any Trust Preferred
Securities; provided, however, that in determining whether the holders of the requisite percentage
of Trust Preferred Securities of any Series have given any request, notice, consent or waiver
hereunder, “Holder” shall not include the Guarantor, the Guarantee Trustee, or any Affiliate of the
Guarantor or the Guarantee Trustee.
“Indenture” has the meaning specified in the Declaration of Trust.
“Indenture Supplement” has the meaning specified in the Declaration of Trust.
“Indemnified Person” has the meaning specified in Section 3.3(c).
“Issuer Trust” has the meaning specified in the first paragraph of this Guarantee Agreement.
“Liquidation Distribution” has the meaning specified in the Declaration of Trust.
“List of Holders” has the meaning specified in Section 2.2(a).
“Majority in Liquidation Amount” has the meaning specified in the Declaration of Trust.
“Normal APEX” has the meaning specified in the Declaration of Trust.
“Notes” has the meaning specified in the Declaration of Trust.
“Officers’ Certificate” means, with respect to any Person, a certificate signed by any two
Authorized Officers of such person. Any Officers’ Certificate delivered with respect to compliance
with a condition or covenant provided for in this Guarantee Agreement shall include:
(i) a statement by each officer signing the Officers’ Certificate that such officer has
read the covenant or condition and the definitions relating thereto;
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(ii) a brief statement of the nature and scope of the examination or investigation
undertaken by such officer in rendering the Officers’ Certificate;
(iii) a statement that such officer has made such examination or investigation as, in
such officer’s opinion, is necessary to enable such officer to express an informed opinion
as to whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of such officer, such condition or
covenant has been complied with.
“Person” means any individual, corporation, partnership, joint venture, trust, unincorporated
organization or government or any agency or political subdivision thereof.
“Redemption Price” has the meaning specified in the Declaration of Trust.
“Responsible Officer” means, with respect to the Guarantee Trustee, any Managing Director, any
Director, any Vice President, any Assistant Vice President, any Assistant Secretary, any Assistant
Treasurer, any trust officer or assistant trust officer or any other officer of the corporate trust
department of the Guarantee Trustee 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.
“Senior Debt” has the meaning specified in the Indenture.
“Series” has the meaning specified in the Declaration of Trust.
“Stock Purchase Date” has the meaning specified in the Stock Purchase Contract Agreement,
dated as of the date hereof, between the Guarantor and the Issuer Trust (acting through the
Property Trustee).
“Successor Guarantee Trustee” means a successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 4.1.
“Trust Indenture Act” means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbb), as
amended and as in effect on the date of this Guarantee Agreement, except as provided in Section 9.5
of the Indenture.
“Trust Preferred Securities” has the meaning specified in the Declaration of Trust.
“Vice President” when used with respect to the Guarantor means any duly appointed vice
president, whether or not designated by a number or a word or words added before or after the title
“vice president.”
ARTICLE II
Trust Indenture Act
Section 2.1 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
through the operation of Section 318(c) thereof, such imposed duties shall control. If any provision of this
Guarantee Agreement modifies or excludes any provision of the Trust Indenture Act which may be so
modified or excluded, the latter provision shall be deemed to apply to this Guarantee Agreement as so
modified or to be excluded, as the case may be.
Guarantee Agreement
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Trustee shall be deemed for all purposes hereof to be subject to and governed by the Trust
Indenture Act to the same extent as would be the case if this Guarantee Agreement were qualified
under the Trust Indenture Act on the date hereof. Except as otherwise expressly provided herein,
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.
Section 2.2 List of Holders.
(a) The Guarantor shall furnish or cause to be furnished to the Guarantee Trustee (a)
semiannually, on or before May 15 of each year, a list, in such form as the Guarantee Trustee may
reasonably require, of the names and addresses of the Holders (a “List of Holders”) as of a date
not more than 15 days prior to the delivery thereof, and (b) at such other times as the Guarantee
Trustee may request in writing, within 30 days after the receipt by the Guarantor of any such
request, a List of Holders as of a date not more than 15 days prior to the time such list is
furnished, in each case to the extent such information is in the possession or control of the
Guarantor and is not identical to a previously supplied list of Holders or has not otherwise been
received by the Guarantee Trustee in its capacity as such. Notwithstanding the preceding sentence,
the Guarantor shall not be obligated to provide such List of Holders at any time the List of
Holders does not differ from the most recent List of Holders given to the Guarantee Trustee by the
Guarantor. The Guarantee Trustee may destroy any List of Holders previously given to it on receipt
of a new List of Holders.
(b) The Guarantee Trustee shall comply with the requirements of Section 311(a), Section 311(b)
and Section 312(b) of the Trust Indenture Act.
Section 2.3 Reports by the Guarantee Trustee.
Within 60 days after May 15 each year (commencing with the year of the first anniversary of
the issuance of the Trust Preferred Securities), the Guarantee Trustee shall provide to the Holders
such reports as are required by Section 313 of the Trust Indenture Act, if any, in the form and in
the manner 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 2.4 Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee and the Holders such documents, reports
and information, if any, as required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act, in the form, in the manner and at
the times required by Section 314 of the Trust Indenture Act.
Section 2.5 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of compliance with such
conditions precedent, if any, provided for in this Guarantee Agreement that 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 by an officer of the Guarantor pursuant to Section 314(c)(1) may be given in
the form of an Officers’ Certificate.
Section 2.6 Events of Default; Waiver.
The Holders of at least a Majority in Liquidation Amount of the Trust Preferred Securities
may, by vote, on behalf of the Holders of all the Trust Preferred Securities, waive any past
Guarantee Agreement
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default or Event of Default and its consequences; provided that each Series of Trust Preferred
Securities shall be entitled, in the case of any default or Event of Default that affects such
Series differently from the other Series, to vote separately as a Series with respect thereto.
Upon such waiver, any such default or Event of Default shall cease to exist, and any default or
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 or impair any right consequent thereon.
Section 2.7 Events of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of an Event of Default
known to the Guarantee Trustee, transmit by mail, first class postage prepaid, to the Holders,
notice of any such Event of Default known to the Guarantee Trustee, unless such Event of Default
has been cured before the giving of such notice, provided that, except in the case of a default in
the payment of a Guarantee Payment, 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 determines that the
withholding of such notice is in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any Event of Default unless
the Guarantee Trustee shall have received written notice, or a Responsible Officer charged with the
administration of this Guarantee Agreement shall have obtained actual knowledge, of such Event of
Default.
Section 2.8 Conflicting Interests.
The Declaration of Trust and the Indenture 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.
ARTICLE III
Powers, Duties and Rights of the Guarantee Trustee
Section 3.1 Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for the benefit of the
Holders, and the Guarantee Trustee shall not transfer this Guarantee Agreement to any Person except
to a Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee of its
appointment to act as Guarantee Trustee hereunder. The right, title and interest of the Guarantee
Trustee, as such, hereunder shall automatically vest in any Successor Guarantee Trustee, upon
acceptance by such Successor Guarantee Trustee of its appointment hereunder, and such vesting and
cessation of title shall be effective whether or not conveyancing documents have been executed and
delivered pursuant to the appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing of which the Guarantee Trustee is
deemed to have knowledge pursuant to Section 2.7(b) , the Guarantee Trustee shall enforce this
Guarantee Agreement for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any 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 (including pursuant to Section 2.1), and no
implied
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covenants shall be read into this Guarantee Agreement against the Guarantee Trustee. If an
Event of Default of which the Guarantee Trustee is deemed to have knowledge pursuant to Section
2.7(b) has occurred (that has not been cured or waived pursuant to Section 2.6), 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 its exercise thereof as a prudent person would exercise or
use under the circumstances in the conduct of his or her own affairs.
(d) 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
willful misconduct, except that:
(i) prior to the occurrence of any 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 (including pursuant to
Section 2.1), 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 (including pursuant to Section 2.1); 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 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 or of the Trust Indenture Act 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 upon which such judgment
was made;
(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
not less than a Majority in Liquidation Amount of the relevant Series of Trust Preferred
Securities 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) subject to Section 3.1(b), 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 any of its duties or in the exercise of any of its rights or
powers, if the Guarantee Trustee shall have reasonable grounds 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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Section 3.2 Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and shall be fully protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document reasonably believed by it to be genuine and to have
been signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this Guarantee Agreement
shall be sufficiently evidenced by an Officers’ Certificate unless otherwise prescribed
herein.
(iii) Whenever, in the administration of this Guarantee Agreement, the Guarantee
Trustee shall deem it desirable that a matter be proved or established before taking,
suffering or omitting to take 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 an Officers’ Certificate which, upon receipt of such request from the
Guarantee Trustee, shall be promptly delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel, and the written advice or
opinion of such legal counsel with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted to be taken
by it hereunder in good faith and in accordance with such advice or opinion. Such legal
counsel may be legal counsel to the Guarantor or any of its Affiliates and may be one of its
employees. The Guarantee Trustee shall have the right at any time to seek instructions
concerning the administration of this Guarantee Agreement from any court of competent
jurisdiction.
(v) 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 Holder
unless such Holder shall have provided to the Guarantee Trustee such adequate security and
indemnity as would satisfy a reasonable person in the position of the Guarantee Trustee
against the costs, expenses (including attorneys’ fees and expenses) and liabilities that
might be incurred by it in complying with such request or direction, including such
reasonable advances as may be requested by the Guarantee Trustee; provided that nothing
contained in this Section 3.2(a)(v) shall be taken to relieve the Guarantee Trustee, upon
the occurrence of an Event of Default, of its obligation to exercise the rights and powers
vested in it by this Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through its agents or attorneys, and
the Guarantee Trustee shall not be responsible for any misconduct or negligence on the part
of any such agent or attorney appointed by it with due care hereunder.
(viii) Whenever in the administration of this Guarantee Agreement the Guarantee Trustee
shall deem it desirable to receive instructions with respect to enforcing any remedy or
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right or taking any other action hereunder, the Guarantee Trustee (A) may request
instructions from the Holders, (B) may refrain from enforcing such remedy or right or taking
such other action until such instructions are received, and (C) shall be protected in acting
in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose any duty or obligation
on the Guarantee Trustee to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in which it shall be illegal, or in which
the Guarantee Trustee shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Guarantee Trustee shall be construed to be a duty to
act in accordance with such power and authority.
Section 3.3 Compensation; Indemnity; Fees.
The Guarantor agrees:
(a) to pay to the Guarantee Trustee from time to time such reasonable compensation for all
services rendered by it hereunder as may be agreed in writing between the Guarantor and the
Guarantee Trustee for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the Guarantee Trustee upon
request for all reasonable expenses, disbursements and advances incurred or made by the Guarantee
Trustee in accordance with any provision of this Guarantee Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence or bad faith; and
(c) to indemnify the Guarantee Trustee, any Affiliate of the Guarantee Trustee and its
officers, agents and employees (each, an “Indemnified Person”) for, and to hold each Indemnified
Person harmless against, any loss, liability or expense (including reasonable out-of-pocket legal
fees and expenses) incurred without negligence, willful misconduct or bad faith on the part of the
Indemnified Person, arising out of or in connection with the acceptance or administration of this
Guarantee Agreement, including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or duties hereunder.
The Guarantee Trustee will not claim or exact any lien or charge on any Guarantee Payments as
a result of any amount due to it under this Guarantee Agreement.
The provisions of this Section 3.3 shall survive the termination of this Guarantee Agreement
or the resignation or removal of the Guarantee Trustee.
ARTICLE IV
Guarantee Trustee
Section 4.1 Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee that shall:
(i) not be an Affiliate of the Guarantor; and
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(ii) be a Person that is eligible pursuant to the Trust Indenture Act to act as such
and has a combined capital and surplus of at least $50,000,000, and shall be a corporation
meeting the requirements of Section 310(a) of the Trust Indenture Act. If such corporation
publishes reports of condition at least annually, pursuant to law or to the requirements of
its supervising or examining authority, then, for the purposes of this Section 4.1 and to
the extent permitted by the Trust Indenture Act, 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.
(b) If at any time the Guarantee Trustee shall cease to be eligible to so act under Section
4.1(a), the Guarantee Trustee shall immediately resign in the manner and with the effect set out in
Section 4.2.
(c) 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 Guarantor shall in
all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section 4.2 Appointment, Removal and Resignation of the Guarantee Trustee.
(a) Subject to Section 4.2(c), the Guarantee Trustee may be appointed or removed at any time
by the action of the Holders of a Majority in Liquidation Amount of the Trust Preferred Securities
delivered to the Guarantee Trustee and the Guarantor (i) for cause or (ii) if a Note Event of
Default (as defined in the Declaration of Trust) shall have occurred and be continuing at any time.
(b) Subject to Section 4.2(c), the Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by giving written notice thereof to the Holders and the Guarantor
and by appointing a successor Guarantee Trustee. The Guarantee Trustee shall appoint a successor
by requesting from at least three Persons meeting the requirements of Section 4.1(a) their expenses
and charges to serve as the Guarantee Trustee, and selecting the Person who agrees to the lowest
expenses and charges.
(c) The Guarantee Trustee appointed hereunder shall hold office until a Successor Guarantee
Trustee shall have been appointed and shall have accepted such appointment. No removal or
resignation of a Guarantee Trustee shall be effective until a Successor Guarantee Trustee has been
appointed and has accepted such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor and, in the case of any resignation, the resigning
Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and accepted appointment as
provided in this Section 4.2 within 60 days after delivery to the Holders and the Guarantor of a
notice of resignation, the resigning Guarantee Trustee may petition, at the expense of the
Guarantor, any court of competent jurisdiction for appointment of a Successor Guarantee Trustee.
Such court may thereupon, after prescribing such notice, if any, as it may deem proper, appoint a
Successor Guarantee Trustee.
(e) If a resigning Guarantee Trustee shall fail to appoint a successor, or if a Guarantee
Trustee shall be removed or become incapable of acting as Guarantee Trustee and a replacement shall
not be appointed prior to such resignation or removal, or if a vacancy shall occur in the office of
Guarantee Trustee for any cause, the Holders of the Trust Preferred Securities, by the action of
the Holders of record of not less than 25% in aggregate Liquidation Amount (as defined in the
Declaration of Trust) of the Trust Preferred Securities then Outstanding (as defined in the
Declaration of Trust) delivered to such Guarantee Trustee, may appoint a Successor Guarantee
Trustee or Trustees. If no
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successor Guarantee Trustee shall have been so appointed by the Holders of the Trust Preferred
Securities and accepted appointment, any Holder, on behalf of such Holder and all others similarly
situated, or any other Guarantee Trustee, may petition any court of competent jurisdiction for the
appointment of a successor Guarantee Trustee.
ARTICLE V
Guarantee
Section 5.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to the Holders the
Guarantee Payments (without duplication of amounts theretofore paid by or on behalf of the Issuer
Trust), as and when due, regardless of any defense, right of set-off or counterclaim that the
Issuer Trust may have or assert, except the defense of payment. The Guarantor’s obligation to make
a Guarantee Payment may be satisfied by direct payment of the required amounts by the Guarantor to
the Holders or by causing the Issuer Trust to pay such amounts to the Holders.
Section 5.2 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Guarantee Agreement and of any
liability to which it applies or may apply, presentment, demand for payment, any right to require a
proceeding first against the Guarantee Trustee, the Issuer Trust or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
Section 5.3 Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor 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 Issuer Trust of any express or implied agreement, covenant, term or condition relating to
the Trust Preferred Securities to be performed or observed by the Issuer Trust;
(b) the extension of time for the payment by the Issuer Trust of any portion of the
Distributions (other than an extension of time for payment of Distributions that results from the
extension of any interest payment period on the Notes as provided in the Indenture), Redemption
Price, Liquidation Distribution or any other sums payable under the terms of the Trust Preferred
Securities or the extension of time for the performance of any other obligation under, arising out
of, or in connection with, the Trust 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 Trust Preferred Securities, or any action on the part of the Issuer Trust granting
indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or
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readjustment of debt of, or other similar proceedings affecting, the Issuer Trust or any of
the assets of the Issuer Trust;
(e) any invalidity of, or defect or deficiency in, the Trust Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a guarantor (other than payment of the underlying obligation), it being the
intent of this Section 5.3 that the obligations of the Guarantor 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 the consent of, the
Guarantor with respect to the happening of any of the foregoing.
Section 5.4 Rights of Holders.
The Guarantor expressly acknowledges 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) the Holders of a
Majority in Liquidation Amount of the Trust Preferred Securities of the affected Series have the
right to direct the time, method and place of conducting any proceeding for any remedy available to
the Guarantee Trustee in respect of this Guarantee Agreement or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee Agreement; and (iv) any Holder may
institute a legal proceeding directly against the Guarantor to enforce its rights under this
Guarantee Agreement without first instituting a legal proceeding against the Guarantee Trustee, the
Issuer Trust or any other Person.
Section 5.5 Guarantee of Payment.
This Guarantee Agreement creates 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 Issuer Trust) or upon the distribution of Notes to
Holders as provided in the Declaration of Trust.
Section 5.6 Subrogation.
The Guarantor shall be subrogated to all rights (if any) of the Holders against the Issuer
Trust in respect of any amounts paid to the Holders by the Guarantor under this Guarantee
Agreement; provided that the Guarantor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any rights that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as a result of 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 the Guarantor in violation of the
preceding sentence, the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
Section 5.7 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent of the obligations
of the Issuer Trust with respect to the Trust Preferred Securities and that the Guarantor shall be
liable as principal and as debtor hereunder to make Guarantee Payments pursuant to the terms of
this
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Guarantee Agreement notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3.
ARTICLE VI
Covenants and Subordination
Section 6.1 Subordination.
The obligations of the Guarantor under this Guarantee Agreement will constitute unsecured
obligations of the Guarantor and will rank subordinate and junior in right of payment and upon
liquidation to all Senior Debt of the Guarantor to the extent and in the manner set forth in the
Indenture with respect to the Notes (as defined therein), and the provisions of Article XIV of the
Base Indenture, as modified by the Indenture Supplement, will apply, mutatis mutandis, to the obligations of the Guarantor hereunder. The
obligations of the Guarantor hereunder do not constitute Senior Debt of the Guarantor.
Section 6.2 Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee Agreement shall rank pari passu with the
obligations of the Guarantor under (i) any similar guarantee agreements issued by the Guarantor on
behalf of the holders of preferred or capital securities issued by any business trust or statutory
trust the assets of which consist of debt securities that are pari passu to the Notes and the
proceeds thereof, (ii) the Indenture and the Debt Securities (as defined therein) issued
thereunder, (iii) any expense agreements entered into by the Guarantor in connection with the
offering of preferred or capital securities by any statutory trust the assets of which consists of
debt securities that are pari passu to the Notes and the proceeds thereof, and (iv) any other
security, guarantee or other agreement or obligation that is expressly stated to rank pari passu
with the obligations of the Guarantor under this Guarantee Agreement or with any obligation that
ranks pari passu with the obligations of the Guarantor under this Guarantee Agreement.
ARTICLE VII
Termination
Section 7.1 Termination.
This Guarantee Agreement shall terminate and be of no further force and effect upon (i) full
payment of the Redemption Price of all Trust Preferred Securities or (ii) full payment of the
amounts payable in accordance with Article IX of the Declaration of Trust upon liquidation of the
Issuer Trust. Notwithstanding the foregoing, this Guarantee Agreement will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder is required to repay
any sums paid with respect to Trust Preferred Securities or this Guarantee Agreement. Section 3.3
shall survive any termination of this Guarantee Agreement.
ARTICLE VIII
Miscellaneous
Section 8.1 Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement shall bind the
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successors, assigns, receivers, trustees and representatives of the Guarantor whether so
expressed or not and will be for the benefit of the Holders of the Trust Preferred Securities then
outstanding. Except in connection with a consolidation, merger or sale involving the Guarantor
that is permitted under Article VIII of the Indenture and pursuant to which the successor or
assignee agrees in writing to perform the Guarantor’s obligations hereunder, the Guarantor shall
not assign its obligations hereunder, and any purported assignment other than in accordance with
this provision shall be void.
Section 8.2 Amendments.
Except with respect to any changes that do not adversely affect the rights of the Holders in
any material respect (in which case no consent of the Holders will be required), this Guarantee
Agreement may only be amended with the prior approval of the Holders of not less than a Majority in
Liquidation Amount of the outstanding Trust Preferred Securities. The holders of each Series of
Trust Preferred Securities will also be entitled to vote separately as a class to the extent that
any proposed amendment would not affect them in the same or substantially the same manner. The
provisions of Article VI of the Declaration of Trust concerning meetings of the Holders shall apply
to the giving of such approval.
The Property Trustee shall be entitled to receive an Opinion of Counsel and an Officers’
Certificate stating that any amendment to this Guarantee Agreement is in compliance with this
Guarantee Agreement.
Section 8.3 Notices.
Any notice, request or other communication required or permitted to be given hereunder shall
be in writing, duly signed by the party giving such notice, and delivered, telecopied or mailed by
first-class mail as follows:
(a) if given to the Guarantor, to the address or telecopy number set forth below or such other
address or facsimile number as the Guarantor may give notice to the Guarantee Trustee and the
Holders:
The Xxxxxxx Xxxxx Group, Inc.
00 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Debt Management
Facsimile: (000) 000-0000
00 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Debt Management
Facsimile: (000) 000-0000
(b) if given to the Guarantee Trustee, to the address or telecopy number set forth below or
such other address or facsimile number as the Guarantee Trustee may give notice to the Guarantor
and Holders:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 0X
Xxx Xxxx, XX 00000
Attention: Global Finance Unit
Facsimile: (000) 000-0000
000 Xxxxxxx Xxxxxx, Xxxxx 0X
Xxx Xxxx, XX 00000
Attention: Global Finance Unit
Facsimile: (000) 000-0000
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with a copy to:
Xxxxxxx Sachs Capital II
c/o The Xxxxxxx Xxxxx Group, Inc.
00 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Debt Management
Facsimile: (000) 000-0000
c/o The Xxxxxxx Xxxxx Group, Inc.
00 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Debt Management
Facsimile: (000) 000-0000
(c) if given to any Holder, at the address set forth on the books and records of the Issuer
Trust.
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 8.4 Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and is not separately
transferable from the Trust Preferred Securities.
Section 8.5 Governing Law.
This Guarantee Agreement shall be governed by and construed in accordance with the laws of the
State of New York.
* * * *
This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.
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In Witness Whereof, the parties hereto have executed this Guarantee Agreement as of
the day and year first above written.
| The Xxxxxxx Xxxxx Group, Inc., as Guarantor |
||||||||
| By: | /s/ Xxxxxxxxx X. Xxxxxx | |||||||
| Title: Treasurer | ||||||||
| The Bank of New York, as Guarantee Trustee |
||||||||
| By: | /s/ Xxxxxx Xxxxxxx | |||||||
| Title: Assistant Vice President | ||||||||
Guarantee Agreement
