SUB-ADVISORY AGREEMENT
SUB-ADVISORY AGREEMENT (the "Agreement") made this 29th day of
February, 2008, by and between XXXXXXXXX GLOBAL INVESTORS (NORTH AMERICA) INC.
(the "Adviser") and TRANSWESTERN SECURITIES MANAGEMENT, L.L.C. (the
"Subadviser"), which Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute but one instrument.
WHEREAS, the Adviser wishes to enter into a contract with the
Subadviser to render to the Adviser the following services:
Provide research, analysis, advice and recommendations with respect to
the purchase and sale of securities, and make investments regarding the North
American portfolio of the Xxxxxxxxx Global Real Estate Equities Fund (the
"Portfolio"), a separate series of the Xxxxxxxxx Global Funds (the "Trust"),
subject to oversight by the Board of Trustees of the Trust and the supervision
of the Adviser.
NOW THEREFORE, in consideration of the mutual agreements herein
contained, and intending to be bound, the parties agree as follows:
1. Compensation. As compensation for the services enumerated herein,
the Adviser will pay the Subadviser a fee, which shall be calculated monthly and
payable monthly, as set forth in Schedule A hereto.
In the event that the Adviser wishes to engage the Subadviser to render
services enumerated herein to one or more other portfolios of the Trust, it
shall notify the Subadviser in writing. If the Subadviser is willing to render
such services and agrees upon the subadvisory fee rates to be payable by the
Adviser, the Subadviser shall notify the Adviser in writing, whereupon such
portfolio or portfolios shall become a Portfolio or Portfolios hereunder and
Schedule A hereto shall be amended.
If this Agreement shall become effective subsequent to the first day of
a month, or shall terminate before the last day of a month, the Subadviser's
compensation for such fraction of the month shall be determined by applying the
fees set forth in Schedule A to the average daily net asset value of the
Portfolio Segment (as defined in Section 4) during such fraction of a month and
in the proportion that such fraction of a month bears to the entire month.
2. Effective Date; Authority of Adviser and Subadviser. Provided that
the guarantee in the form attached at Appendix 1 is executed by the Subadviser
and Transwestern Investment Company L.L.C., which is the sixty percent (60%)
beneficial owner of the Subadviser, this Agreement shall become effective as of
the date first above written subject to the approval of the Board of Trustees of
the Trust and the sole shareholder of the Portfolio in accordance with the
provisions of the Investment Company Act of 1940 (the "1940 Act"). The Adviser
will promptly advise the Subadviser as to the giving of such approval. The
Adviser represents that it is the investment adviser of the Portfolio, with the
authority as such to enter into this Agreement. The Subadviser represents that
it has the authority to enter into this Agreement.
3. Term; Termination. This Agreement shall become effective with
respect to the Portfolio on the date hereof and shall remain in full force until
August 30, 2009 unless sooner terminated as hereinafter provided. This Agreement
shall continue in force from year to year thereafter with respect to any
Portfolio to which the Agreement shall have become applicable, but only so long
as such continuance is specifically approved for such Portfolio at least
annually in the manner required by the 1940 Act, and the rules and regulations
thereunder; provided, however, that if the continuation of this Agreement is not
approved for a Portfolio, the Subadviser may continue to serve in such capacity
for such Portfolio in the manner and to the extent permitted by the 1940 Act and
the rules and regulations thereunder.
This Agreement may be terminated at any time without the payment of any
penalty, by the Adviser, or by the Subadviser, or by the Board of Trustees or by
vote of a majority of the outstanding voting securities of the Portfolio on
sixty (60) days written notice.
This Agreement shall automatically terminate in the event of its
assignment or (upon notice thereof to the Subadviser) the assignment of the
Investment Advisory Agreement between the Trust and the Adviser, unless the
continuation of this Agreement thereafter is approved by the Board of Trustees
of the Trust and the shareholders of the Portfolio as required by the 1940 Act.
The terms "assignment" and "vote of a majority of the outstanding
voting securities" shall have the meanings set forth in the 1940 Act and the
rules and regulations thereunder.
4. Services. Subject to the supervision of the Board of Trustees of the
Trust and the Adviser, the Subadviser will provide an investment program for
such portion of the assets of each Portfolio as Adviser shall from time to time
designate (each a "Portfolio Segment"), including investment research and
management with respect to securities and investments, including cash and cash
equivalents in the Portfolio Segment, and will determine from time to time what
securities and other investments will be purchased, retained or sold by the
Portfolio Segment. The Subadviser will provide the services under this Agreement
in accordance with the Portfolio's investment objective, policies and
restrictions as stated in the Prospectus (as used herein this term includes the
related Statement of Additional Information). The Subadviser further agrees that
it:
(a) will conform with all applicable Rules and Regulations of the
Securities and Exchange Commission and will, in addition, conduct its activities
under this Agreement in accordance with regulations of any other Federal or
State agencies which now have or in the future will have jurisdiction over its
activities;
(b) will pay expenses incurred by it in connection with its activities
under this Agreement other than the cost of securities and other investments
(including brokerage commissions and other transaction changes, if any)
purchased for the Portfolio Segment, provided that the Subadviser will not pay
for or provide a credit with respect to any research provided to it in
accordance with Section 4(c);
(c) will place orders pursuant to its investment determinations for the
Portfolio Segment either directly with any broker or dealer, or with the issuer.
In placing orders
2
with brokers or dealers, the Subadviser will attempt to obtain the best overall
price and the most favorable execution of its orders, except as provided below.
In no instance will securities be purchased from or sold to the Subadviser or
any affiliated person of the Subadviser as principal. Notwithstanding the
foregoing sentence, the Subadviser may arrange for the execution of brokered
transactions through an affiliated broker dealer in conformity with policies and
procedures for such purpose if, when, and as established by the Board of
Trustees of the Trust. Subject to policies established by the Board of Trustees
of the Trust and communicated to the Subadviser, it is understood that the
Subadviser will not be deemed to have acted unlawfully, or to have breached a
fiduciary duty to the Trust or in respect of the Portfolio, or be in breach of
any obligation owing to the Adviser or the Trust or in respect of the Portfolio
under this Agreement, or otherwise, solely by reason of its having caused the
Portfolio to pay an unaffiliated broker or a dealer a commission for effecting a
securities transaction for the Portfolio in excess of the amount of commission
another member of an exchange, broker or dealer would have charged if the
Subadviser determines in good faith that the commission paid was reasonable in
relation to the brokerage or research services provided by such member, broker
or dealer, viewed in terms of that particular transaction or the Subadviser's
overall responsibilities with respect to the accounts, including the Portfolio
Segment, as to which it exercises investment discretion;
(d) will provide the Funds' custodian on each business day with
information relating to all transactions concerning the Portfolio's assets and
shall provide the Adviser with such information upon request of the Adviser, and
review the daily valuation of securities owned by the Portfolio Segment as
obtained on a daily basis by the Trust's administrator and furnished by it to
Subadviser, and will promptly notify the Trust and the Adviser if the Subadviser
believes that any such valuation may not properly reflect the market value of
any securities owned by the Portfolio Segment;
(e) will attend regular business and investment-related meetings with
the Trust's Board of Trustees and the Adviser if requested to do so by the Trust
and/or the Adviser;
(f) maintain books and records with respect to the securities
transactions for the Portfolio Segment, furnish to the Adviser and the Trust's
Board of Trustees such periodic and special reports as they may request with
respect to the Portfolio Segment, and provide in advance to the Adviser all of
the Subadviser's reports to the Trust's Board of Trustees for examination and
review within a reasonable time prior to the Trust's Board meetings;
(g) maintain adequate compliance procedures to ensure its compliance
with the 1940 Act, the Investment Advisers Act of 1940 ("Advisers Act") and
other applicable state and federal regulations and provide annual certifications
regarding its compliance program and such reports as the Adviser or the Board
shall reasonably request from time to time;
(h) will keep the Adviser, for itself and on behalf of the Trust,
informed of developments materially affecting the Portfolio or the Portfolio
Segment and shall, on the Subadviser's own initiative and as reasonably
requested by the Adviser, for itself and on behalf of the Trust, furnish to the
Adviser from time to time whatever information the Adviser reasonably believes
appropriate for this purpose;
3
(i) will immediately forward upon receipt, to the Adviser, for itself
and as agent for the Trust any correspondence from the Securities and Exchange
Commission ("SEC") or other regulatory authority that relates to a Portfolio or
the Portfolio Segment and the Subadviser's response thereto and agrees that it
will immediately notify the Adviser and the Trust in the event that the
Subadviser: (a) becomes subject to a statutory disqualification that prevents
the Subadviser from serving as an investment subadviser pursuant to this
Agreement; or (b) is or expected to become the subject of an administrative
proceeding or enforcement action by the SEC or other regulatory authority;
(j) will promptly notify the Adviser of any financial condition that is
likely to impair the Subadviser's ability to fulfill its commitment under this
Agreement; and
(k) will review all proxy solicitation materials and be responsible for
voting and handling all proxies in relation to the securities held in a
Portfolio pursuant to written procedures and policies adopted by the Subadviser
subject to the supervision and direction of the Board of the Trust. The
Subadviser shall provide to the Adviser its complete proxy voting record on
behalf of the Portfolio in connection with Rule 30b1-4 under the 1940 Act. The
Adviser shall instruct the custodian and other parties providing services to the
Fund to promptly forward misdirected proxies to the Subadviser.
5. Confidentiality. Subadviser agrees with respect to the services
provided to the Portfolio Segment that it:
(a) will provide the Adviser with trade information and broker confirms
upon request; and
(b) will treat confidentially and as proprietary information of the
Trust all records and other information relative to the Portfolio Segment and
its prior, present or potential shareholders, and will not use such records and
information for any purpose other than performance of its responsibilities and
duties hereunder (except after prior notification to the Trust where Subadviser
is advised by counsel that the Subadviser may be exposed to civil or criminal
contempt proceedings for failure to comply, when requested to divulge such
information by duly constituted authorities, or when so requested by the Trust).
6. Records. In compliance with the requirements of Rule 31a-3 under the
1940 Act, Subadviser acknowledges that all records which it maintains for the
Trust are the property of the Trust and agrees to surrender promptly to the
Trust any of such records upon the Trust's request, provided, that Subadviser
may retain copies thereof at its own expense. Subadviser further agrees to
preserve for the periods prescribed by Rule 31a-2 under the 1940 Act the records
required to be maintained by Rule 31a-1 under the 1940 Act relating to
transactions placed by Subadviser for the Portfolio.
7. Exclusivity. During the period of this Agreement, the Subadviser
agrees that, without the prior written consent of the Adviser, it will neither
provide investment advisory services directly or indirectly, nor offer for
distribution to broker-dealer firms a similar global real estate equities
product. For the avoidance of doubt, the Subadviser is not permitted to accept
an appointment by a third party to act as investment manager in relation to
global real estate
4
equities but can accept an appointment to act as investment manager solely in
relation to North American property securities.
8. Information to be Furnished to Subadviser. The Adviser agrees that
it will furnish currently to the Subadviser all information with reference to
the Portfolio and the Trust that is reasonably necessary to permit the
Subadviser to carry out its responsibilities under this Agreement, and the
parties agree that they will from time to time consult and make appropriate
arrangements as to specific information that is required under this paragraph
and the frequency and manner with which it shall be supplied. Without limiting
the generality of the foregoing, Adviser will furnish to Subadviser procedures
consistent with the Trust's contract with the Portfolio's custodian from time to
time (the "Custodian"), and reasonably satisfactory to Subadviser, for
consummation of portfolio transactions for the Portfolio Segment by payment to
or delivery by the Custodian of all cash and/or securities or other investments
due to or from the Portfolio Segment, and Subadviser shall not have possession
or custody thereof or any responsibility or liability with respect to such
custody. Upon giving proper instructions to the Custodian, Subadviser shall have
no responsibility or liability with respect to custodial arrangements or the
acts, omissions or other conduct of the Custodian.
9. Use of Names.
(a) The Subadviser acknowledges and agrees that the names "Xxxxxxxxx",
"Xxxxxxxxx Global Funds", "Xxxxxxxxx Global Investors", and abbreviations or
logos associated with those names, are the valuable property of the Adviser and
its affiliates; that the Trust, the Adviser and their affiliates have the right
to use such names, abbreviations and logos; and that the Subadviser shall use
the names Xxxxxxxxx Global Funds and Xxxxxxxxx Global Investors, and associated
abbreviations and logos, only in connection with the Subadviser's performance of
its duties hereunder. Further, in any communication with the public and in any
marketing communications of any sort, the Subadviser agrees to obtain prior
written approval from the Adviser before using or referring to Xxxxxxxxx Global
Funds, and Xxxxxxxxx Global Investors, or the Trust or any abbreviations or
logos associated with those names; provided that nothing herein shall be deemed
to prohibit the Subadviser from referring to the performance of the Portfolio in
the Subadviser's marketing material as long as such marketing material does not
constitute "sales literature" or "advertising" for the Trust, as those terms are
used in the rules, regulations and guidelines of the SEC and the Financial
Industry Regulatory Authority.
(b) The Adviser acknowledges that "Transwestern Securities Management",
"Transwestern" and "TSM" and abbreviations or logos associated with those names
are valuable property of the Subadviser and are distinctive in connection with
investment advisory and related services provided by the Subadviser, the names
are a property right of the Subadviser, and are understood to be used by the
Trust upon the conditions hereinafter set forth; provided that the Trust may use
such names only so long as the Subadviser shall be retained as the investment
subadviser of the Trust pursuant to the terms of this Agreement.
(c) The Subadviser acknowledges that each Fund and its agents may use
the "Transwestern Securities Management", "Transwestern" and TSM" names in
connection with accurately describing the activities of the Trust, including use
with marketing and other promotional and informational material relating to the
Trust. In the event that the Subadviser
5
shall cease to be the investment subadviser of a Fund, then the Fund at its own
or the Adviser's expense, upon the Subadviser's written request: (i) shall cease
to use the Subadviser's name for any commercial purpose; and (ii) shall use its
best efforts to cause the Fund's officers and trustees to take any and all
actions which may be necessary or desirable to effect the foregoing and to
reconvey to the Subadviser all rights which a Fund may have to such name. The
Adviser agrees to take any and all reasonable actions as may be necessary or
desirable to effect the foregoing and Subadviser agrees to allow the Funds and
their agents a reasonable time to effectuate the foregoing.
(d) The Subadviser hereby agrees and consents to the use of the
Subadviser's name upon the foregoing terms and conditions.
10. Indemnification. The Subadviser agrees to indemnify and hold
harmless the Adviser, the Trust and any affiliated person of either the Adviser
or the Trust within the meaning of Section 2(a)(3) of the 1940 Act ("affiliated
person"), against any and all losses, claims, damages, liabilities or litigation
(including reasonable legal and other expenses), to which the Adviser, the Trust
or such affiliated person or controlling person may become subject under the
1933 Act, the 1940 Act, the Advisers Act, under any other statute, at common law
or otherwise, arising out of Subadviser's responsibilities as subadviser of the
Funds to the extent of and as a result of (i) the willful misconduct, bad faith,
or gross negligence of the Subadviser, any of the Subadviser's employees or
representatives or any affiliate of or any person acting on behalf of the
Subadviser; or (ii) a breach by the Subadviser of a material provision of this
Agreement; provided, however, that in no case is the Subadviser's indemnity in
favor of the Adviser, the Trust or affiliated person of either the Adviser or
the Trust deemed to protect such person against any liability to which any such
person would otherwise be subject by reason of willful misconduct, bad faith or
gross negligence in the performance of its duties or by reason of its reckless
disregard of its obligations and duties under this Agreement.
The Adviser agrees to indemnify and hold harmless the Subadviser, any
affiliated person of the Subadviser against any and all losses, claims, damages,
liabilities or litigation (including reasonable legal and other expenses), to
which the Subadviser or such affiliated person may become subject under the 1933
Act, the 1940 Act, the Advisers Act, under any other statute, at common law or
otherwise, arising out of the Adviser's responsibilities as investment adviser
of the Funds to the extent of and as a result of (i) the willful misconduct, bad
faith, or gross negligence of the Adviser, any of the Adviser's employees or
representatives or any affiliate of or any person acting on behalf of the
Adviser; or (ii) a breach by the Adviser of a material provision of this
Agreement; provided, however, that in no case is the Adviser's indemnity in
favor of the Subadviser or any affiliated person of the Subadviser deemed to
protect such person against any liability to which any such person would
otherwise be subject by reason of willful misconduct, bad faith or gross
negligence in the performance of its duties or by reason of its reckless
disregard of its obligations and duties under this Agreement.
11. Limitation of Liability of the Trust, its Trustees, and
Shareholders. It is understood and expressly stipulated that none of the
trustees, officers, agents, or shareholders of any series of the Trust shall be
personally liable hereunder. It is understood and acknowledged that all persons
dealing with any series of the Trust must look solely to the property of such
series for the enforcement of any claims against that series as neither the
trustees, officers, agents
6
or shareholders assume any personal liability for obligations entered into on
behalf of any series of the Trust. No series of the Trust shall be liable for
the obligations or liabilities of any other series of the Trust.
12. Key Personnel. The appointment of the Subadviser under this
Agreement is conditional on an on-going basis on the Subadviser ensuring that
Xxxxxx Xxxxx and Xxxxx Xxxxxxx (the "Key Personnel") perform the obligations of
the Subadviser under this Agreement. Any delegation of such performance by any
of the Key Personnel to a third party employee, officer or director of the
Subadviser must be agreed to in writing in advance by the Adviser.
If any of the Key Personnel serve notice of their intention to
terminate their employment by or appointment to act for the Subadviser, the
Subadviser must:
(a) immediately notify the Adviser of such occurrence; and
(b) provide the Adviser within 10 days of receipt of such notice of
termination from any of the Key Personnel replacement personnel
acceptable to the Adviser (at its sole discretion) for the purposes of
performing the obligations of the relevant departing Key Personnel
under this Agreement.
Notwithstanding the provisions of Section 3, this Agreement may be
terminated immediately by the Adviser, without the payment of any penalty, if
the Subadviser fails to fulfill its obligations described in paragraphs (a) and
(b) above, or if the Adviser determines that the replacement personnel are not
acceptable.
13. Severability; Applicable Law. If any provision of this Agreement
shall be held or made invalid by a court decision, statute, rule or otherwise,
the remainder of the Agreement shall not be affected thereby. Except to the
extent governed by federal law including the 1940 Act, this Agreement shall be
governed by, and construed in accordance with, the laws of the State of
Illinois, without applying the principles of conflicts of law thereunder.
14. Amendment. As to each Portfolio of the Trust, this Agreement may be
amended only by an instrument in writing signed by the party against which
enforcement of the amendment is sought. An amendment of this Agreement affecting
a Portfolio hereunder shall not be effective until approved by (i) vote of the
holders of a majority of the outstanding voting securities of the Portfolio; and
(ii) a majority of those Trustees of the Trust who are not parties to this
Agreement or "interested persons" (as defined in the 0000 Xxx) of any party to
this Agreement, cast in person at a meeting called for the purpose of voting on
such approval unless otherwise permitted under the 1940 Act.
15. Third Part Beneficiary. The parties acknowledge that the Trust is a
third party beneficiary of the services and obligations set forth in this
Agreement.
16. Notice. Any notice to be given hereunder may be given by personal
notification or by facsimile transmission, to the party specified at the address
stated below:
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To the Adviser at: Xxxxxxxxxxx X. Xxxxxxxxx, Senior Legal
Counsel and Corporate Secretary
000 X. Xxxxxxxx Xxx.
Xxxxx 0000
Xxxxxxx, XX 00000
To the Subadviser at: Xxxxxx Xxxxx
Transwestern Securities Management, L.L.C.
000 Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
With a copy to Xxxxx
Xxxxx at the same
address.
To the Portfolio or the Trust at: Xxxxxxxxxxx X. Xxxxxxxxx
Secretary
000 X. Xxxxxxxx Xxx.
Xxxxx 0000
Xxxxxxx, XX 00000
or addressed as such party may from time to time designate by notice to other
parties in accordance herewith.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their duly authorized officers as of the day and year first above
written.
XXXXXXXXX GLOBAL INVESTORS
(NORTH AMERICA) INC.
By: /s/ Xxxxx X. X'Xxxxx
--------------------
TRANSWESTERN SECURITIES
MANAGEMENT, L.L.C.
By: /s/ Xxxxx X.Xxx
---------------
8
SCHEDULE A
XXXXXXXXX GLOBAL REAL ESTATE EQUITIES FUND
There are two components to the sub-advisory fee.
(1) The Adviser will pay to the Subadviser a monthly fee based upon an
annual percentage of the average daily net assets of the Portfolio Segment, as
follows:
0.50% for the first $500 million;
0.45% for the next $500 million; and
0.40% for the balance thereafter.
The fee for a given month shall be paid on the first business day of the
following month.
(2) The Adviser also will pay to the Subadviser a fee equal to 1/12 of
7.25 basis points of the initial amount of any investment into the Portfolio for
the first 12 months after the investment. The fee for a given month shall be
paid on the first business day of the following month. The Adviser will furnish
such information as the Subadviser may reasonably request from time to time to
enable it to calculate the amount of this fee. This fee applies to all
investments, except this fee does not apply to any investments that may be made
by the World Bank.
B-1
APPENDIX 1
FORM OF PARENT GUARANTEE
GUARANTY
DATED AS OF FEBRUARY 29, 2008
Transwestern Investment Company, L.L.C., the beneficial owner of sixty percent
(60%) of the limited liability company interests in Transwestern Securities
Management, L.L.C. ("TSM"), in consideration of the agreements and covenants of
TSM contained in the Sub-Investment Management Agreement dated February 29, 2008
(the "Agreement") between TSM and Xxxxxxxxx Global Investors (North America)
Inc. ("XXXXXXXXX"), hereby fully and unconditionally guarantees, as guarantor
(the "GUARANTOR"), principal and not merely as surety, all Liabilities (defined
below) of TSM contained in or arising under the Agreement. The Guarantor
absolutely and unconditionally guarantees Xxxxxxxxx the full and prompt payment
of the Liabilities when due, whether at stated maturity, by acceleration or
otherwise. The Guarantor will not only pay the Liabilities, but will also
reimburse Xxxxxxxxx for any fees, charges, costs and expenses, including
reasonable attorneys' fees, that Xxxxxxxxx may pay in collecting from TSM and
for liquidating this Guaranty. The Guarantor's obligations under this Guaranty
shall be payable in lawful money of the United States of America.
LIABILITIES. The term "LIABILITIES" in this Guaranty means all monetary
obligations, indebtedness and liabilities of TSM to Xxxxxxxxx or the Xxxxxxxxx
Global Real Estate Equities Fund arising under the Agreement, as amended,
restated or otherwise modified from time to time. Such liabilities may include
indemnification obligations arising under the Agreement for any losses which may
be suffered or incurred by, and all actions, proceedings, claims, costs, demands
and expenses which may be brought against suffered or incurred by, Xxxxxxxxx or
the Xxxxxxxxx Global Real Estate Equities Fund or any shareholder of the Fund in
connection with the Agreement where any such loss occurs as a result of breach
of contract, fraud, bad faith, wilful default or negligence on the part of TSM
or persons designated by it in the performance or non-performance by TSM of its
duties and obligations under the Agreement ("TSM'S DEFAULT"). Such liabilities
may also include any taxation assessed upon or payable by Xxxxxxxxx where such
taxation is attributable to TSM's Default.
REMEDIES. If any amount owing under this Guaranty is not paid when due,
Xxxxxxxxx shall have all of the rights and remedies provided by any law or
agreement. The Guarantor is liable to Xxxxxxxxx for all reasonable costs and
expenses of every kind incurred in collection of any Liabilities, including
without limitation reasonable attorneys' fees and court costs.
NATURE OF GUARANTY. This Guaranty is a guaranty of payment and not of
collection. Therefore, Xxxxxxxxx may insist that the Guarantor pay immediately,
and Xxxxxxxxx is not required to attempt to collect first from TSM or any other
person liable for the Liabilities. The obligation of the Guarantor shall be
unconditional and absolute even if all or any part of the Agreement between
Xxxxxxxxx and TSM is unenforceable, void, voidable or illegal, and regardless of
the existence of any defense, setoff or counterclaim that TSM may assert. It is
not necessary for Xxxxxxxxx to inquire into the powers of the Guarantor or the
officers, directors, members, managers, partners, trustees or agents acting or
purporting to act on its behalf, and any of the Liabilities made or created in
reliance upon the professed exercise of such powers shall be guaranteed
hereunder.
WAIVERS. The Guarantor waives (a) to the extent permitted by law, all rights and
benefits under any laws or statutes regarding sureties, as may be amended and
(b) the benefit of any statute of limitations affecting such Guarantor's
obligations hereunder or the enforcement hereof. Any waiver affects only the
specific terms and time period stated in the waiver. No modification or waiver
of this Guaranty is effective unless it is in writing and signed by the party
against whom it is being enforced.
B-2
INFORMATION. The Guarantor assumes all responsibility for being and keeping
itself informed of the TSM's financial condition and assets, and of all other
circumstances bearing upon the risk of non-payment of the Liabilities and the
nature, scope and extent of the risks that the Guarantor assumes and incurs
under this Guaranty, and agrees that Xxxxxxxxx does not have any duty to advise
the Guarantor of information known to it regarding those circumstances or risks.
SEVERABILITY. The provisions of this Guaranty are several, and in any action or
proceeding involving any state corporate law, or any state, federal or foreign
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of the Guarantor under this Guaranty
would otherwise be held or determined to be avoidable, invalid or unenforceable
on account of the amount of the Guarantor's liability under this Guaranty, then,
notwithstanding any other provision of this Guaranty to the contrary, the amount
of such liability shall, without any further action by the Guarantor or
Xxxxxxxxx, be automatically limited and reduced to the highest amount that is
valid and enforceable as determined in such action or proceeding.
REPRESENTATIONS BY GUARANTOR. The Guarantor represents that: (a) the execution
and delivery of this Guaranty and the performance of the obligations it imposes
do not violate any law, conflict with any agreement by which it is bound, or
require the consent or approval of any governmental authority or other third
party and (b) this Guaranty is a valid and binding agreement, enforceable
according to its terms. The Guarantor further represents that: (a) it is duly
organized, existing and in good standing pursuant to the laws under which it is
organized, and (b) the execution and delivery of this Guaranty and the
performance of the obligations it imposes (i) are within its powers and have
been duly authorized by all necessary action of its governing body, and (ii) do
not contravene the terms of its articles of organization or its operating
agreement or any agreement governing its affairs.
NOTICE. Any notices and demands hereunder or related to this document shall be
in writing and delivered to the intended party at its address listed below, by
one of the following means: (a) by hand, (b) by a nationally recognized
overnight courier service, or by certified mail, postage prepaid, with return
receipt requested. Notice shall be deemed given (i) upon receipt if delivered by
hand, (ii) on the Delivery Day after the day of deposit with a nationally
recognized courier service, or (iii) on the third Delivery Day after the notice
is deposited in the mail. "DELIVERY DAY" means a day other than a Saturday, a
Sunday or any other day on which national banking associations are authorized to
be closed. Any party may change its address for purposes of the receipt of
notices and demands by giving notice of such change in the manner provided in
this provision.
If to Guarantor: Transwestern Investment Company, L.L.C.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
XXX
Attn: Xxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
If to Xxxxxxxxx: Xxxxxxxxx Global Investors (North America) Inc.
000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Legal Department
Tel: (000) 000-0000
Fax: (000) 000-0000
B-3
GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED AND ADMINISTERED
IN ACCORDANCE WITH THE INTERNAL SUBSTANTIVE LAWS OF THE STATE OF DELAWARE
WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
CONSENT TO JURISDICTION AND VENUE. THE PARTIES HEREBY CONSENT TO THE EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS OR THE FEDERAL COURTS OF THE
UNITED STATES, IN EACH CASE SITTING IN XXXX COUNTY, ILLINOIS, IN ANY SUIT,
ACTION OR PROCEEDING ("PROCEEDING") RELATING TO THIS GUARANTY. THE PARTIES
IRREVOCABLY SUBMIT TO THE JURISDICTION OF ILLINOIS STATE OR FEDERAL COURTS WITH
RESPECT TO ANY PROCEEDING AND CONSENT THAT SERVICE OF PROCESS AS PROVIDED BY
ILLINOIS LAW MAY BE MADE UPON GUARANTOR IN SUCH PROCEEDING, AND MAY NOT CLAIM
THAT THE PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. GUARANTOR
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY ILLINOIS STATE OR FEDERAL COURT IN
ANY SUCH PROCEEDING.
MISCELLANEOUS. The Guarantor's liability under this Guaranty is independent of
its liability under any other guaranty previously or subsequently executed by
the Guarantor as to all or any part of the Liabilities, and may be enforced for
the full amount of the Guaranty, regardless of the Guarantor's liability under
any other guaranty. This Guaranty binds the Guarantor's heirs, successors and
assigns, and benefits Xxxxxxxxx and its successors and assigns, subject to the
prior written consent of Xxxxxxxxx having been obtained by the Guarantor to any
such act of inheritance, succession or assignment by the Guarantor. The use of
headings does not limit the provisions of this Guaranty.
WAIVER OF JURY TRIAL. THE GUARANTOR AND XXXXXXXXX (BY ITS ACCEPTANCE HEREOF)
HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT
TO HAVE A JURY PARTICIPATION IN RESOLVING ANY DISPUTE (WHETHER BASED ON TORT,
CONTRACT OR OTHERWISE) BETWEEN SUCH GUARANTOR AND XXXXXXXXX IN ANY WAY ARISING
OUT OF OR RELATED TO DOCUMENT.
GUARANTOR:
TRANSWESTERN INVESTMENT COMPANY, L.L.C.
By: /s/ Xxxxx X. Xxx
----------------
Name: Xxxxx X. Xxx
Title: Managing Director and Chief Financial Officer
Date:
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ACCEPTED:
XXXXXXXXX GLOBAL INVESTORS (NORTH AMERICA) INC.
By: /s/ Xxxxx X'Xxxxx
-----------------
Name: Xxxxx X'Xxxxx
Title: Director Corporate Services
Date:
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