EXHIBIT 4(c)(5)
CONFORMED COPY
Dated June 29th, 2001
BEAR XXXXXXX GLOBAL ASSET HOLDINGS, LTD.
NOTE ISSUANCE AGREEMENT
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DEED OF GUARANTEE
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XXXXX & OVERY
New York
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DEED OF GUARANTEE OF THE BEAR XXXXXXX COMPANIES INC.
THIS DEED OF GUARANTEE is given by way of deed poll on June 29th, 2001 by THE
BEAR XXXXXXX COMPANIES INC. (the "Guarantor").
WHEREAS:
(A) The Guarantor has agreed to guarantee the obligations of Bear Xxxxxxx
Global Asset Holdings, Ltd. (the "Issuer") under the Notes (the "Notes")
to be issued from time to time by the Issuer pursuant to a Note Issuance
Agreement dated June 24, 1997 and subsequently amended and restated on
June 30, 2000 and supplemented on June 29th, 2001 (the "Note Issuance
Agreement", which expression shall include the same as it may be amended,
restated or supplemented from time to time) between the Issuer, the
Guarantor and Chase Manhattan Bank as Agent (the "Agent") and the other
parties named therein.
(B) The Guarantor has also agreed to guarantee the obligations of the Issue
under the Deed of Covenant dated June 24, 1997 and subsequently amended
and restated on June 30, 2000 and on June 29th, 2001 and executed by the
Issuer and relating to the Notes.
(C) Terms defined or used in the Terms and Conditions of the Notes (the
"Conditions") and in the Note Issuance Agreement and not otherwise defined
in this Guarantee shall have the same meaning when used in this Guarantee.
NOW THIS DEED WITNESSES as follows:
1. Save in relation to all Series of Notes issued during the period up to and
including the day last preceding the date of this Deed of Guarantee and
any Notes issued on or after the date of this Deed of Guarantee so as to
be consolidated and form a single Series with the Notes of any Series
issued during the period up to and including such last preceding day, with
effect on and from the date of this Deed of Guarantee the provisions of
the Original Deed of Guarantee dated June 24, 1997 as originally entered
into and the provisions of the Deed of Guarantee dated June 30, 2000, as
subsequently entered into shall each cease to have effect and in lieu
thereof the provisions of this Deed of Guarantee shall have effect.
2. The Guarantor hereby irrevocably and unconditionally guarantees to each
Noteholder and Couponholder:
(a) the due and punctual payment in accordance with the Conditions of
the principal of and premium (if any) and interest on and payment
and delivery of Securities Amount(s) (if any) in respect of the
Notes and of any other amounts payable by the Issuer under the Notes
and the due and punctual payment and delivery of all amounts payable
by the Issuer under the Deed of Covenant; and
(b) the due and punctual performance and observance by the Issuer of
each of the other provisions of the Notes and the Deed of Covenant
on the part of the Issuer to be performed or observed.
3. If the Issuer fails for any reason whatsoever punctually to pay any such
principal, premium, interest or other amount or to pay or deliver the
Securities Amount(s) (if any), the Guarantor shall cause each and every
such payment and delivery to be made as if the Guarantor instead
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of the Issuer were expressed to be the primary obligor under the Notes and
the Deed of Covenant and not merely as surety (but without affecting the
nature of the Issuer's obligations) to the intent that the holder of the
relevant Note shall receive the same amounts in respect of principal,
premium, interest or such amount and the same Securities Amounts as would
have been receivable had such payments or deliveries been made by the
Issuer.
4. If any payment or delivery of Securities Amount(s) (if any) received by
any Noteholder or Couponholder under the Notes or the Deed of Covenant
shall (whether on the subsequent bankruptcy, insolvency or corporate
reorganisation of the Issuer or, without limitation, on any other event)
be avoided or set aside for any reason, such payment or delivery shall not
be considered as discharging or diminishing the liability of the Guarantor
and this Deed of Guarantee shall continue to apply as if such payment or
delivery had at all times remained owing or due by the Issuer and the
Guarantor shall indemnify the Noteholders and/or Couponholders (as the
case may be) in respect thereof PROVIDED THAT the obligations of the
Issuer and/or the Guarantor under this sub-clause shall, as regards each
payment or delivery made to any Noteholders and/or Couponholder which is
avoided or set aside, be contingent upon such payment or delivery being
reimbursed or returned to the Issuer or other persons entitled through the
Issuer.
5. The Guarantor hereby agrees that its obligations under this Deed shall be
unconditional and that the Guarantor shall be fully liable irrespective of
the validity, regularity, legality or enforceability against the Issuer
of, or of any defence or counter-claim whatsoever available to the Issuer
in relation to, its obligations under the Notes or the Deed of Covenant,
whether or not any action has been taken to enforce the same or any
judgment obtained against the Issuer, whether or not any of the other
provisions of the Notes or the Deed of Covenant have been modified,
whether or not any time, indulgence, waiver, authorisation or consent has
been granted to the Issuer by or on behalf of the Noteholders and/or
Couponholders, whether or not there have been any dealings or transactions
between the Issuer and any of the Noteholders and/or Couponholders,
whether or not the Issuer has been dissolved, liquidated, merged,
consolidated, bankrupted or has changed its status, functions, control or
ownership, whether or not the Issuer has been prevented from making
payment by foreign exchange provisions applicable at its place of
registration or incorporation and whether or not any other circumstances
have occurred which might otherwise constitute a legal or equitable
discharge of or defence to a guarantor. Accordingly the validity of this
Deed of Guarantee shall not be affected by reason of any invalidity,
irregularity, illegality or unenforceability of all or any of the
obligations of the Issuer under the Notes or the Deed of Covenant and this
guarantee shall not be discharged nor shall the liability of the Guarantor
hereunder be affected by any act, thing or omission or means whatever
whereby its liability would not have been discharged if it had been the
principal debtor.
6. The Guarantor waives diligence, presentment, demand of payment, filing of
claims with a court in the event of dissolution, liquidation, merger or
bankruptcy of the Issuer, any right to require a proceeding first against
the Issuer, protest or notice with respect to the Notes or the Deed of
Covenant or the indebtedness evidenced thereby and all demands whatsoever
and covenants that this guarantee shall be a continuing guarantee, shall
extend to the ultimate balance of all sums payable and obligations owed by
the Issuer under the Notes or the Deed of Covenant, shall not be
discharged except by complete performance of the obligations in this
guarantee and is additional to, and not instead of, any security or other
guarantee or indemnity at any time existing in favour of any person,
whether from the Guarantor or otherwise.
7. If any moneys shall become payable or any Securities Amount(s) shall
become payable and/or deliverable by the Guarantor under this guarantee,
the Guarantor shall not, so long as the same remain unpaid or undelivered
(as the case may be):
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(a) in respect of any amounts paid or delivered by it under this
guarantee, exercise any rights of subrogation or contribution or,
without limitation, any other right or remedy which may accrue to it
in respect of or as a result of any such payment or delivery; or
(b) in respect of any other moneys for the time being due to the
Guarantor by the Issuer, claim payment thereof or exercise any other
right or remedy;
(including in either case claiming the benefit of any security or right of
set-off). If, notwithstanding the foregoing, upon the bankruptcy,
insolvency or liquidation of the Issuer, any payment, delivery or
distribution of assets of the Issuer of any kind or character, whether in
cash, property or securities, shall be received by the Guarantor before
payment and delivery in full of all amounts payable and deliverable under
this guarantee shall have been made to the Noteholders and the
Couponholders, such payment, delivery or distribution shall be received by
the Guarantor on trust to pay or deliver the same over immediately to the
Agent and the Registrar (as the case may be) for application in or towards
the payment or delivery of all sums due and unpaid under the Notes and the
Deed of Covenant.
8. The obligations of the Guarantor under this guarantee constitute direct,
unconditional and (subject to the provisions of Condition 3) unsecured
obligations of the Guarantor and (subject as aforesaid) rank and will rank
pari passu with all other outstanding unsecured and unsubordinated
obligations of the Guarantor, present and future, but, in the event of
insolvency, only to the extent permitted by applicable laws relating to
creditors' rights.
The Guarantor agrees to comply with and perform all the undertakings,
covenants and agreements expressed to be given by it pursuant to the
Conditions (including, without limiting the generality to the foregoing,
Conditions 3 and 8).
9. The Guarantor will pay any stamp and other duties and taxes, including
interest and penalties, payable on or in connection with the execution of
this Deed and any action taken by any Noteholders and the Couponholder to
enforce the provisions of this Deed.
10. The Guarantor hereby warrants, represents and covenants with each
Noteholder and Couponholder that it has all corporate power, and has taken
all necessary corporate or other steps to enable it to execute, deliver
and perform this Deed, and that this Deed constitutes a legal, valid and
binding obligation of the Guarantor enforceable in accordance with its
terms subject to the laws of bankruptcy and other laws affecting the
rights of creditors generally.
11. This Deed shall take effect as a Deed Poll for the benefit of the
Noteholders and the Couponholders from time to time and for the time
being. This Deed shall be deposited with and held by the Agent until all
the obligations of the Guarantor hereunder have been discharged in full.
12. The Guarantor hereby acknowledges the right of every Noteholder and
Couponholder to the production of, and the right of every Noteholder and
Couponholder to obtain (upon payment of a reasonable charge) a copy of,
this Deed, and further acknowledges and covenants that the obligations
binding upon it contained herein are owed to, and shall be for the account
of, each and every Noteholder and Couponholder, and that each Noteholder
and Couponholder shall be entitled severally to enforce the said
obligations against the Guarantor.
13. This Deed is governed by, and shall be construed in accordance with, the
laws of England.
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The Guarantor hereby irrevocably agrees, for the exclusive benefit of the
Noteholders and Couponholders, that the courts of England are to have
jurisdiction to settle any disputes which may arise out of or in
connection with this Deed and that accordingly any suit, action or
proceedings (together referred to as "Proceedings") arising out of or in
connection with this Deed may be brought in such courts. The Guarantor
hereby irrevocably waives any objection which it may have now or hereafter
to the laying of the venue of any such Proceedings in any such court and
any claim that any such Proceedings have been brought in an inconvenient
forum and hereby further irrevocably agrees that a judgment in any such
Proceedings brought in the English courts shall be conclusive and binding
upon it and may be enforced in the courts of any other jurisdiction.
Nothing contained in this clause shall limit any right to take Proceedings
against the Guarantor in any other court of competent jurisdiction, nor
shall the taking of Proceedings in one or more jurisdictions preclude the
taking of Proceedings in any other jurisdiction, whether concurrently or
not.
The Guarantor hereby appoints Bear Xxxxxxx International Trading Limited
as its registered office at Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX as its agent
for service of process, and undertakes that, in the event of Bear Xxxxxxx
International Trading Limited ceasing so to act or ceasing to be
registered in England, it will appoint another person as its agent for
service of process in England in respect of any Proceedings.
EXECUTED as a deed by THE )
BEAR XXXXXXX COMPANIES )
INC. by Xxxxxxx Xxxxxx ) XXXXXXX XXXXXX
acting under the authority of )
that company, in the presence of: )
Witness: MIMI KA
Name: Mimi Ka
Address: 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000
Occupation: Attorney
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