Exhibit 99.1
GUARANTEE AND COLLATERAL AGREEMENT
dated and effective as of
March 24, 2008
among
THE BEAR ▇▇▇▇▇▇▇ COMPANIES INC.,
each of its Subsidiaries identified herein,
and
JPMORGAN CHASE & CO.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01. Guaranties.......................................................2
Section 1.02. Other Defined Terms..............................................2
Section 1.03. Terms Generally..................................................7
ARTICLE II
GUARANTEE
Section 2.01. Guarantee........................................................8
Section 2.02. Guarantee of Payment.............................................8
Section 2.03. No Limitations, Etc..............................................8
Section 2.04. Reinstatement...................................................10
Section 2.05. Agreement To Pay; Contribution; Subrogation.....................10
Section 2.06. Information.....................................................10
Section 2.07. Maximum Liability...............................................11
Section 2.08. Payment Free and Clear of Taxes.................................11
ARTICLE III
PLEDGED SECURITIES
Section 3.01. Delivery of Pledged Securities..................................11
Section 3.02. Representations, Warranties and Covenants.......................12
Section 3.03. Registration in Nominee Name; Denominations.....................13
Section 3.04. Voting Rights; Dividends and Interest, Etc......................13
ARTICLE IV
SECURITY INTERESTS
Section 4.01. Security Interest...............................................14
Section 4.02. Representations and Warranties..................................18
Section 4.03. Covenants.......................................................19
Section 4.04. Collateral Held by JPM..........................................20
Section 4.05. Other Actions...................................................20
ARTICLE V
REMEDIES; APPLICATION OF PROCEEDS
Section 5.01. Remedies Upon Default...........................................22
Section 5.02. Apportionment, Application, and Reversal of Payments............23
Section 5.03. Securities Act, Etc.............................................24
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ARTICLE VI
INDEMNITY, SUBROGATION AND SUBORDINATION
Section 6.01. Indemnity.......................................................25
Section 6.02. Contribution and Subrogation....................................25
Section 6.03. Subordination; Subrogation......................................25
ARTICLE VII
MISCELLANEOUS
Section 7.01. Notices.........................................................27
Section 7.02. Security Interest Absolute......................................27
Section 7.03. Limitation By Law...............................................27
Section 7.04. Binding Effect; Several Agreement...............................28
Section 7.05. Successors and Assigns..........................................28
Section 7.06. JPM's Fees and Expenses; Indemnification........................28
Section 7.07. JPM Appointed Attorney-in-Fact..................................29
Section 7.08. GOVERNING LAW...................................................29
Section 7.09. Waivers; Amendment..............................................29
Section 7.10. WAIVER OF JURY TRIAL............................................30
Section 7.11. Severability....................................................30
Section 7.12. Counterparts....................................................30
Section 7.13. Headings........................................................30
Section 7.14. Jurisdiction; Consent to Service of Process.....................30
Section 7.15. Termination or Release..........................................31
Section 7.16. Additional Subsidiaries.........................................32
Section 7.17. Right of Set-off................................................32
Section 7.18. Guarantor Operations............................................32
Section 7.19. Right of Release................................................32
Schedules
Schedule I Subsidiary Parties
Schedule IA Regulated Entities
Schedule II Pledged Securities
Schedule III Intellectual Property
Schedule 7.19 Non-Collateral Assets
Exhibits
Exhibit A Form of Supplement to the Guarantee and Collateral Agreement
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GUARANTEE AND COLLATERAL AGREEMENT, dated and effective as of March
24, 2008 (this "Agreement"), among JPMORGAN CHASE & CO., a Delaware corporation
("JPM"), THE BEAR ▇▇▇▇▇▇▇ COMPANIES INC., a Delaware corporation ("BSC") and
each Subsidiary of BSC signatory hereto and set forth on Schedule I hereto.
WHEREAS, JPM and BSC are parties to that certain Agreement and Plan
of Merger, dated as of March 16, 2008 (the "Merger Agreement");
WHEREAS, in connection with the Merger Agreement, JPM executed that
certain Guaranty, dated as of March 16, 2008 (the "Original Guaranty");
WHEREAS, contemporaneously with the execution of this Agreement the
parties have entered into an amendment to the Merger Agreement (the "Merger
Agreement Amendment");
WHEREAS, contemporaneously with the execution of this Agreement JPM
has executed a Guarantee in favor of the Federal Reserve Bank of New York (the
"Fed") in respect of certain obligations of BSC and its Affiliates to the Fed
(the "Fed Guaranty");
WHEREAS, contemporaneously with the execution of this Agreement JPM
has executed the Amended and Restated Guaranty Agreement dated as of March 16,
2008 in respect of certain obligations of BSC and its Affiliates to entities
other than the Fed and its affiliates (the "Restated Guaranty");
WHEREAS, JPM or its Affiliates have provided and may in the future
provide loans and other extensions of credit to BSC or its Affiliates;
WHEREAS, in consideration of the Merger Agreement Amendment, the Fed
Guaranty and the Restated Guaranty, and as a condition to the entry by JPM into
each of the foregoing, and to induce continuing and/or future extensions of
credit by JPM or its Affiliates, BSC and the Subsidiary Parties have agreed to
enter into this Agreement on the terms hereof;
WHEREAS, entry into this Agreement constitutes further action that
is necessary and desirable to carry out the purposes of the Merger Agreement and
the Original Guaranty; and
WHEREAS, the Subsidiary Parties, as affiliates of BSC and of the
Covered BSC Entities (as defined in the Restated Guaranty), will derive
substantial benefits from the Merger Agreement Amendment, the Fed Guaranty and
the Restated Guaranty, including the funding and continuation without disruption
of their respective businesses and are willing to execute and deliver this
Agreement in order to induce JPM to enter into the foregoing;
NOW, THEREFORE, BSC, each Subsidiary Party and JPM hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01. Guaranties. (a) Unless otherwise stated herein:
(i) Capitalized terms used in this Agreement and not otherwise
defined herein have the meanings assigned thereto in the Fed Guaranty
and/or the Restated Guaranty, as applicable.
(ii) All terms defined in the New York UCC (as defined below) and
not defined in this Agreement have the meanings specified therein.
(iii) The term "instrument" shall have the meaning specified in
Article 9 of the New York UCC.
Section 1.02. Other Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"Account Debtor" means any person who is or who may become obligated
to any Pledgor under, with respect to or on account of an Account, Chattel
Paper, General Intangibles, Instruments or Investment Property.
"Affiliate" shall mean, when used with respect to a specified
person, another person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with the
person specified.
"Agreement" has the meaning assigned thereto in the preamble to this
agreement.
"BSC" has the meaning assigned thereto in the preamble to this
Agreement.
"Collateral" has the meaning assigned to such term in Section 4.01.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Copyright License" means any written agreement, now or hereafter in
effect, granting any right to any Pledgor under any Copyright now or hereafter
owned by any third party, and all rights of any Pledgor under any such agreement
(including, without limitation, any such rights that such Pledgor has the right
to license).
"Copyrights" means all of the following now owned or hereafter
acquired by any Pledgor: (a) all copyright rights in any work subject to the
copyright laws of the United States or any other country, whether as author,
assignee, transferee or otherwise; and (b) all registrations and applications
for registration of any such Copyright in the United States or any other
country, including registrations, supplemental registrations and pending
applications for registration in the
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United States Copyright Office and the right to obtain all renewals thereof,
including without limitation those listed on Schedule III.
"Deposit Accounts" means all "Deposit Accounts" as defined in the
New York UCC.
"Equity Interests" of any person shall mean any and all shares,
interests, rights to purchase or otherwise acquire, warrants, options,
participations or other equivalents of or interests in (however designated)
equity or ownership of such person, including any preferred stock, any limited
or general partnership interest and any limited liability company membership
interest, and any securities or other rights or interests convertible into or
exchangeable for any of the foregoing.
"Fed Guaranty" has the meaning assigned thereto in the recitals to
this Agreement.
"Federal Securities Laws" has the meaning assigned to such term in
Section 5.03.
"Financial Contracts" means swaps, repurchase agreements, futures
contracts, forward contracts, commodities contracts, securities contracts
(including in respect of purchase, sale and lending of securities), options,
currency and foreign exchange contracts, derivatives, Trading Contracts (as
defined in the Restated Guaranty) and other contracts of a similar nature and
any master agreements entered into in connection therewith or under which the
aforesaid shall be governed.
"General Intangibles" means all "General Intangibles" as defined in
the New York UCC, including all choses in action and causes of action and all
other intangible personal property of any Pledgor of every kind and nature now
owned or hereafter acquired by any Pledgor, including corporate or other
business records, indemnification claims, contract rights (including rights
under leases, whether entered into as lessor or lessee, swap agreements,
repurchase agreements and other agreements), Intellectual Property, goodwill,
registrations, franchises, tax refund claims and any guarantee, claim, security
interest or other security held by or granted to any Pledgor to secure payment
by an Account Debtor of any of the Accounts.
"Governmental Authority" shall mean any federal, state, provincial,
territorial, municipal, local or foreign court or governmental agency,
authority, instrumentality or regulatory or legislative body.
"Guaranty" means any or all of the Fed Guaranty, the Original
Guaranty and the Restated Guaranty.
"Guarantor" means BSC and each of the Subsidiary Parties.
"Indenture" means the Indenture dated as of May 31, 1991 executed by
BSC in favor of Manufacturers Hanover Trust Company (n/k/a, JPMorgan Chase Bank,
National Association) as trustee.
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"Intellectual Property" means all intellectual property of every
kind and nature now owned or hereafter acquired by any Pledgor, including,
inventions, designs, Patents, Copyrights, Trademarks, Patent Licenses, Copyright
Licenses, Trademark Licenses, trade secrets, domain names, confidential or
proprietary technical and business information, know-how, show-how or other data
or information and all related documentation.
"Intellectual Property Security Agreement" means a security
agreement in the form hereof or a short form hereof, in each case, which form
shall be reasonably acceptable to JPM.
"Investment Property" means all "Investment Property" as defined in
the New York UCC.
"IP Agreements" means all material Copyright Licenses, Patent
Licenses, Trademark Licenses, and all other agreements, permits, consents,
orders and franchises relating to the license, development, use or disclosure of
any material Intellectual Property to which a Pledgor, now or hereafter, is a
party or a beneficiary, including, without limitation, the agreements set forth
on Schedule III hereto.
"JPM" has the meaning assigned thereto in the preamble to this
Agreement.
"JPM Party" means JPM and any Affiliate of JPM to which all or any
part of an Obligation is owed.
"Lease Rights" means all leases, subleases, franchises, licenses,
concessions, permits, contracts and other agreements pursuant to which any
Pledgor leases any space (other than space consisting of or located at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) from or to any person or entity or has the
use, occupancy or possession of any real property (other than real property
located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) now or hereafter entered into
and any and all amendments, supplements, modifications, restatements,
guaranties, renewals or extensions thereof (the "Leases"); the right to receive
and apply any rents, issues and profits of or with respect to any and all
Leases, including any and all allowances, concessions and consideration payable
thereunder or in connection therewith, including in connection with any
assignment, transfer or further leasing or subleasing of any Leases or the
premises under the Lease (the "Rents"); and all other amounts payable to or for
the benefit of any Pledgor under or in connection with the Leases and all
rights, claims, powers, privileges and remedies of any Pledgor (including
without limitation any and all rights and interests in buildings, improvements,
fixtures and personal property, and any and all options or rights of first
refusal, first offer or first negotiation to lease or to purchase, extend,
renew, terminate, expand, or contract the premises under any Lease), whether
arising under the Leases, by statute or at law or in equity or otherwise.
"Margin Stock" shall have the meaning assigned to such term in
Regulation U.
"Merger Agreement" has the meaning assigned thereto in the recitals
to this Agreement.
"New York UCC" means the Uniform Commercial Code as from time to
time in effect in the State of New York.
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"Note Issuance Agreement" means the Second Amended and Restated Note
Issuance Agreement, dated as of June 28, 2002, between Bear ▇▇▇▇▇▇▇ Global Asset
Holdings, Ltd., The Bear ▇▇▇▇▇▇▇ Companies Inc., JPMorgan Chase Bank,
Kredietbank S.A. Luxembourgeosie, Bear, ▇▇▇▇▇▇▇ International Limited and Bear,
▇▇▇▇▇▇▇ & Co. Inc., as supplemented or otherwise amended from time to time.
"Obligations" means all obligations and liabilities of BSC and its
Affiliates to JPM and its Affiliates (a) under this Agreement and Section 6.7 of
the Merger Agreement, at common law or in equity, for repayment or reimbursement
in respect of any payment made by JPM and its Affiliates under or in respect of
the Restated Guaranty, (b) under or in respect of all rights of subrogation,
reimbursement, indemnity, contribution or other payment (whether by law,
contract or otherwise, including pursuant to Section 5 of the Original Guaranty
and the Restated Guaranty and Section 3 of the Fed Guaranty) arising from or in
respect of any payment under any Guaranty or any other extension of credit by
JPM or any of its Affiliates to or for the benefit of BSC or any of its
Affiliates, including without limitation (i) all payments by JPM and its
Affiliates to the Fed (or any affiliate thereof) under the Fed Guaranty in
respect of borrowing, repurchase agreement, securities lending and other
Financial Contract transactions entered into by BSC and its Affiliates with the
Fed (or any affiliate thereof) and (ii) the payment or performance by JPM or any
of its Affiliates of any obligation to a creditor or counterparty of any Covered
BSC Entity in respect of any Underlying Liability, and/or (c) under or in
respect of all loans, advances and other extensions of credit (including
intraday and overnight advances and overdrafts and including counterparty
exposure in respect of repurchase agreements, securities contracts and other
Financial Contracts) by JPM and its Affiliates to or on behalf of BSC and its
Affiliates (including all amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings thereof) to the
extent that such loans, advances and extensions of credit were made or remained
outstanding after the execution of the Merger Agreement, including, without
limitation, loans, advances and extensions of credit made after the date hereof.
"Ownership Limitations" shall mean restrictions with respect to the
placing of liens on the Equity Interests of certain direct and indirect
Subsidiaries of BSC contained (whether through lien covenants, negative pledge
clauses, "ownership of obligor" clauses or otherwise) in loan agreements,
repurchase agreements and other agreements relating to the financing of BSC and
its Subsidiaries that are material to the obligors thereunder.
"Patent License" means any written agreement, now or hereafter in
effect, granting to any Pledgor any right to make, use or sell any invention
covered by a Patent, now or hereafter owned by any third party (including,
without limitation, any such rights that such Pledgor has the right to license).
"Patents" means all of the following now owned or hereafter acquired
by any Pledgor: (a) all letters patent of the United States or the equivalent
thereof in any other country or jurisdiction, including those listed on Schedule
III, and all applications for letters patent of the United States or the
equivalent thereof in any other country or jurisdiction, including those listed
on Schedule III, and (b) all provisionals, reissues, extensions, continuations,
divisions, continuations-in- part, reexaminations or revisions thereof, and the
inventions disclosed or
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claimed therein, including the right to make, use, import and/or sell the
inventions disclosed or claimed therein.
"Permitted Liens" means (a) involuntary liens arising under law, (b)
liens imposed by law or regulation in favor of governmental entities or
customers, (c) liens existing as of the date hereof securing debt of a Pledgor
in an amount not to exceed the amount in existence as of the date hereof and
future advances committed and secured as of the date hereof, (d) liens created
in the ordinary course of business of the Pledgors, consistent with the Merger
Agreement and Section 7.18 of this Agreement.
"Person" or "person" shall mean any natural person, corporation,
business trust, joint venture, association, company, partnership, limited
liability company, individual or family trusts, or government or any agency or
political subdivision thereof.
"Pledged Debt Obligations" means, as to any Pledgor, the debt
obligations owned by such Pledgor beneficially or of record and the
certificates, promissory notes and any other documents and instruments, if any,
evidencing such debt obligations.
"Pledged Securities" means any Equity Interests, promissory notes,
stock certificates or other securities (whether constituting Equity Interests or
Pledged Debt Obligations or otherwise) now or hereafter included in the
Collateral, including all certificates, instruments or other documents
representing or evidencing any Collateral.
"Pledgor" means BSC and each of the Subsidiary Parties.
"Primary Obligor" shall mean, with respect to any Underlying
Liability, the Affiliate of BSC (or, as the case may be, BSC itself) that is
primarily liable with respect to such Underlying Liability.
"Regulated Entity" shall mean any Subsidiary listed on Schedule IA
hereto.
"Regulation T" shall mean Regulation T of the Board of Governors of
the Federal Reserve System of the United States of America as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System of the United States of America as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board of Governors of
the Federal Reserve System of the United States of America as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"Restated Guaranty" has the meaning assigned thereto in the recitals
to this Agreement.
"Security Interest" has the meaning assigned to such term in Section
4.01.
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"Subsidiary" means with respect to any person (herein referred to as
the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, directly or indirectly, owned, Controlled or held, or (b) that
is, at the time any determination is made, otherwise Controlled, by the parent
or one or more subsidiaries of the parent or by the parent and one or more
subsidiaries of the parent.
"Subsidiary Party" means each Subsidiary of BSC that is a party
hereto, and any Subsidiary that becomes a party hereto pursuant to Section 7.16.
"Trademark License" means any written agreement, now or hereafter in
effect, granting to any Pledgor any right to use any Trademark now or hereafter
owned by any third party (including, without limitation, any such rights that
such Pledgor has the right to license).
"Trademarks" means all of the following now owned or hereafter
acquired by any Pledgor: (a) all trademarks, service marks, corporate names,
company names, business names, fictitious business names, trade styles, trade
dress, logos, other source or business identifiers, designs and general
intangibles of like nature, now existing or hereafter adopted or acquired, all
registrations thereof (if any), and all registration and recording applications
filed in connection therewith, including registrations and registration
applications in the United States Patent and Trademark Office or any similar
offices in any State of the United States or any other country or any political
subdivision thereof (except for "intent-to-use" applications for trademark or
service ▇▇▇▇ registrations filed pursuant to Section 1(b) of the ▇▇▇▇▇▇ Act, 15
U.S.C. ss. 1051, unless and until an Amendment to Allege Use or a Statement of
Use under Sections 1(c) and 1(d) of ▇▇▇▇▇▇ Act has been filed, to extent that
any assignment of an "intent-to-use" application prior to such filing would
violate the ▇▇▇▇▇▇ Act), and all renewals thereof, including those listed on
Schedule III and (b) all goodwill associated therewith or symbolized thereby.
"Trigger Event" shall mean (A) the failure by BSC or any of the
Subsidiary Parties to make a payment due hereunder within two (2) business days
of JPM's request therefor, (B) the failure by BSC acting in the capacity of
Primary Obligor or any of the Subsidiary Parties acting in the capacity of
Primary Obligor to pay within two business days of the due date thereof any
Obligation and (C) the commencement of any bankruptcy, insolvency, receivership,
liquidation or like facility with respect to BSC or any of its material
Subsidiaries.
"Underlying Liability" shall mean any claim, liability or other
obligation, the payment and/or performance of which is guaranteed by JPM
pursuant to a Guaranty or, as the case may be, any direct obligation of BSC or
its Affiliates to JPM or its Affiliates (other than an obligation arising under
Section 2.01 hereof).
Section 1.03. Terms Generally. The definitions set forth or referred
to in Section 1 shall apply equally to both the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include,"
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation." All references herein to Articles, Sections, Exhibits and Schedules
shall be deemed references to Articles and Sections of, and Exhibits and
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Schedules to, this Agreement unless the context shall otherwise require. Except
as otherwise expressly provided herein, any reference in this Agreement to any
document or agreement shall mean such document as amended, restated,
supplemented or otherwise modified from time to time in accordance with the
requirements hereof and thereof. Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance
with GAAP, as in effect from time to time.
ARTICLE II
GUARANTEE
Section 2.01. Guarantee. Each Guarantor unconditionally and
irrevocably guarantees, jointly with the other Guarantors and severally, to JPM
and the other JPM Parties, as a primary obligor and not merely as a surety, the
due and punctual payment and performance of the Obligations now or hereafter
owing to any JPM Party. Each Guarantor further agrees that the Obligations (and
the Underlying Liabilities from which they derive) may be extended or renewed,
in whole or in part, without notice to or further assent from it, and that it
will remain bound upon its guarantee notwithstanding any extension or renewal of
any Obligation. Each Guarantor waives presentment to, demand of payment from and
protest to the applicable Primary Obligor or any other Guarantor of any of the
Obligations, and also waives notice of acceptance of its guarantee and notice of
protest for nonpayment. Notwithstanding the foregoing, in no event shall any
Guarantor be subject to this Section 2.01 or otherwise guarantee the Obligations
to the extent such guaranty would (i) violate a legal (including regulatory) or
enforceable contractual prohibition or obligation binding on such Guarantor that
would give rise to a loss (including without limitation a termination of a
benefit) or liability that is material to BSC and its Subsidiaries taken as a
whole or (ii) materially impair the ability of the relevant Guarantor to carry
on its business.
Section 2.02. Guarantee of Payment. Each Guarantor further agrees
that its guarantee hereunder constitutes a guarantee of payment when due
(whether at the stated maturity, by acceleration or otherwise) and not of
collection, and waives any right to require that any JPM Party proceed against
any Primary Obligor or that any resort be had by any JPM Party to any security
held for the payment of the Obligations or to any balance of any deposit account
or credit on the books of any JPM Party in favor of BSC, any Covered BSC Entity
or any other person.
Section 2.03. No Limitations, Etc. (a) Except for termination of a
Guarantor's obligations hereunder as expressly provided for in Section 7.15 and
subject to the limitations set forth in Section 2.01, the obligations of each
Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to any
defense, setoff, counterclaim, recoupment or termination whatsoever (whether
accruing to a Guarantor or Primary Obligor), including, without limitation, by
reason of the invalidity, illegality or unenforceability of the Obligations, any
Underlying Liability or otherwise (other than defense of payment or
performance). Without limiting the generality of the foregoing, the obligations
of each Guarantor hereunder, to the fullest extent permitted by applicable law,
shall not be
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discharged or impaired or otherwise affected by, and each Guarantor hereby
waives any defense to the enforcement hereof by reason of:
(i) the failure of any JPM Party to assert any claim or demand or to
exercise or enforce any right or remedy under the provisions of any
Guaranty, any of the Obligations, any document, agreement or other writing
supporting, evidencing or governing a Guaranty or any of the Obligations
(an "Obligation Document") or otherwise;
(ii) any rescission, waiver, amendment or modification of, increase
in the Obligations with respect to, or any release from any of the terms
or provisions of, any Guaranty, any Obligation Document or any other
agreement, including with respect to any other Guarantor under this
Agreement and including with respect to any documentation in respect of
Underlying Liabilities;
(iii) the failure to perfect any security interest in, or the
exchange, substitution, release or any impairment of, any security held by
JPM or any JPM Party for the Obligations, whether under this Agreement or
otherwise;
(iv) any default, failure or delay, willful or otherwise, in the
performance of the Obligations;
(v) any other act or omission that may or might in any manner or to
any extent vary the risk of any Guarantor or otherwise operate as a
discharge of any Guarantor as a matter of law or equity (other than the
payment in full in cash or immediately available funds of all the
Obligations),
(vi) any illegality, lack of validity or enforceability of any
Obligation, any Obligation Document, any Underlying Liability or any
documentation with respect thereto,
(vii) any change in the corporate existence, structure or ownership
of any Guarantor or any Primary Obligor, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting any Guarantor or any
Primary Obligor or their respective assets or any resulting release or
discharge of any Obligation,
(viii) the existence of any claim, set-off or other rights that the
Guarantor may have at any time against the Primary Obligor, any JPM Party
or any other corporation or person, whether in connection herewith or any
unrelated transactions,
(ix) the existence of any claim, set-off or other rights that the
Primary Obligor may have at any time against the any JPM Party or any
other corporation or person, whether in connection herewith or any
unrelated transactions, or
(x) any action permitted or authorized hereunder.
Each Guarantor expressly authorizes the JPM Parties to take and hold security
for the payment and performance of the Obligations, to exchange, waive or
release any or all such security (with
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or without consideration), to enforce or apply such security and direct the
order and manner of any sale thereof in its sole discretion or to release or
substitute any one or more other guarantors or obligors upon or in respect of
the Obligations, all without affecting the obligations of any Guarantor
hereunder.
(b) To the fullest extent permitted by applicable law, each
Guarantor waives any defense based on or arising out of any defense of any other
Guarantor or Primary Obligor or the unenforceability of the Obligations, the
Underlying Liabilities or the Obligation Documents or any part thereof from any
cause, or the cessation from any cause of the liability of any other Guarantor,
other than the payment in full in cash or immediately available funds of all the
Obligations. JPM may, at its election, foreclose on any Pledged Security by one
or more judicial or nonjudicial sales, accept an assignment of any such security
in lieu of foreclosure, compromise or adjust any part of the Obligations, make
any other accommodation with any other Guarantor or exercise any other right or
remedy available to them against any other Guarantor, without affecting or
impairing in any way the liability of any Guarantor hereunder except to the
extent the Obligations have been paid in full in cash or immediately available
funds. To the fullest extent permitted by applicable law, each Guarantor waives
any defense arising out of any such election even though such election operates,
pursuant to applicable law, to impair or to extinguish any right of
reimbursement or subrogation or other right or remedy of such Guarantor against
any other Guarantor, as the case may be, or any security.
Section 2.04. Reinstatement. Each Guarantor agrees that its
guarantee hereunder shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of any Obligation is
rescinded or must otherwise be restored by any JPM Party upon the bankruptcy or
reorganization of the applicable Primary Obligor, any Guarantor or otherwise.
Section 2.05. Agreement To Pay; Contribution; Subrogation. In
furtherance of the foregoing and not in limitation of any other right that the
JPM Parties have at law or in equity against any Guarantor by virtue hereof,
upon the failure of any Primary Obligor to pay any Obligation when and as the
same shall become due, whether at maturity, by acceleration, after notice of
prepayment or otherwise, each Guarantor hereby promises to and will forthwith
pay, or cause to be paid, to the JPM Parties in cash the amount of such unpaid
Obligation. Each Guarantor hereby unconditionally and irrevocably agrees that in
the event any payment shall be required to be made to a JPM Party under this
guarantee, such Guarantor will contribute, to the maximum extent permitted by
law, such amounts to each other Guarantor so as to maximize the aggregate amount
paid to the JPM Parties under or in respect of the Obligations. Upon payment by
any Guarantor of any sums to a JPM Party as provided above, all rights of such
Guarantor against the Primary Obligor or any other Guarantor arising as a result
thereof by way of right of subrogation, contribution, reimbursement, indemnity
or otherwise shall in all respects be subject to Article VI.
Section 2.06. Information. Each Guarantor assumes all responsibility
for being and keeping itself informed of the financial condition and assets of
each Primary Obligor and each other Guarantor, all other circumstances bearing
upon the risk of nonpayment of the Obligations and the nature, scope and extent
of the risks that such Guarantor assumes and incurs hereunder, and agrees that
the JPM Parties will have no duty to advise such Guarantor of information known
to it regarding such circumstances or risks.
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Section 2.07. Maximum Liability. Each Guarantor, and by its
acceptance of this guarantee, JPM (for itself and on behalf of its Affiliates),
hereby confirms that it is the intention of all such Persons that this guarantee
and the Obligations of each Guarantor hereunder not constitute a fraudulent
transfer or conveyance for purposes of the U.S. Bankruptcy Code or any other
federal, state or foreign bankruptcy, insolvency, receivership or similar law,
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or
any similar foreign, federal or state law to the extent applicable to this
guarantee and the Obligations of each Guarantor hereunder. To effectuate the
foregoing intention, JPM (for itself and on behalf of its Affiliates) hereby
irrevocably agrees that the Obligations of each Subsidiary Party under this
guarantee at any time shall be limited to the maximum amount as will result in
the Obligations of such Guarantor under this guarantee not constituting a
fraudulent transfer or conveyance.
Section 2.08. Payment Free and Clear of Taxes. Any and all payments
by or on account of any obligation of any Guarantor hereunder shall be made free
and clear of, and without deduction for, any tax of any kind or nature (or, as
the case may be, shall be grossed up accordingly).
ARTICLE III
PLEDGED SECURITIES
Section 3.01. Delivery of Pledged Securities. (a) Each Pledgor
agrees promptly to deliver or cause to be delivered to JPM, promptly upon JPM's
request, such certificated Pledged Securities as JPM may reasonably request,
together with, as applicable, customary stock powers or other documentation
required by Section 3.01(c), and shall cause to be certificated such
uncertificated Pledged Securities as JPM may reasonably request. None of the
Pledgors shall permit any other party to "control" (for purposes of Section
8-106 of the New York UCC (or any analogous provision of the Uniform Commercial
Code in effect in the jurisdiction whose law applies)) any uncertificated
securities that constitute Pledged Securities other than JPM and other than as
occurs in the ordinary course of such Pledgor's business or as contemplated by
Section 7.18.
(b) To the extent any indebtedness for borrowed money constitutes
Pledged Securities (other than to the extent that a pledge of such promissory
note or instrument would violate applicable law) the Pledgor holding such
indebtedness for borrowed money shall, upon the reasonable request of JPM, cause
such Indebtedness to be evidenced by a duly executed promissory note, and such
Pledgor shall cause such promissory note to be pledged and delivered to JPM,
pursuant to the terms hereof. To the extent any such promissory note is a demand
note, each Pledgor party thereto agrees, if so requested by JPM, to immediately
demand payment thereunder upon the maturity of any Obligation.
(c) Any Pledged Securities required to be delivered pursuant to the
foregoing paragraphs (a) and (b) of this Section 3.01 shall be accompanied by
stock powers or note powers, as applicable, duly executed in blank or other
instruments of transfer reasonably satisfactory to JPM and by such other
instruments and documents as JPM may reasonably request. All other property
composing part of the Pledged Securities delivered pursuant to the terms of this
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Agreement shall be accompanied to the extent necessary to perfect the security
interest in or allow realization on the Pledged Securities by proper instruments
of assignment duly executed by the applicable Pledgor and such other instruments
or documents as JPM may reasonably request. Each delivery of Pledged Securities
shall be accompanied by a schedule describing the securities, which schedule
shall be attached hereto as Schedule II (or a supplement to Schedule II, as
applicable) and made a part hereof; provided that failure to attach any such
schedule hereto shall not affect the validity of such pledge of such Pledged
Securities. Each schedule so delivered shall supplement any prior schedules so
delivered.
Section 3.02. Representations, Warranties and Covenants. The
Pledgors, jointly and severally, represent, warrant and covenant to and with
JPM:
(a) Schedule II sets forth all Equity Interests owned by any Pledgor
in any Subsidiary of any Pledgor (the "Subsidiary Interests");
(b) the Subsidiary Interests have been duly and validly authorized
and issued by the issuers thereof and are fully paid and nonassessable;
(c) except for the security interests granted hereunder, each
Pledgor (i) is the direct owner, beneficially and of record, of the
Pledged Securities indicated on Schedule II as owned by such Pledgor, (ii)
holds the same free and clear of all Liens, other than Permitted Liens,
(iii) will make no assignment, pledge, hypothecation or transfer of, or
create or permit to exist any security interest in or other Lien on, the
Pledged Securities, other than pursuant to a transaction permitted by the
Merger Agreement and other than Permitted Liens and (iv) subject to the
rights of such Pledgor under the Merger Agreement to dispose of Pledged
Securities, will use commercially reasonable efforts to defend its title
or interest hereto or therein against any and all Liens (other than
Permitted Liens), however arising, of all persons;
(d) each Pledgor has the power and authority to pledge the Pledged
Securities pledged by it hereunder in the manner hereby done or
contemplated;
(e) to the knowledge of BSC, no consent or approval of any
Governmental Authority, any securities exchange or any other person was or
is necessary to the validity of the pledge effected hereby (other than
such as have been obtained and are in full force and effect);
(f) by virtue of the execution and delivery by the Pledgors of this
Agreement, when a financing statement covering such Pledged Securities is
filed in the appropriate filing office, JPM and its successors and
permitted assigns will obtain a legal, valid and perfected lien upon and
security interest in such Pledged Securities under the New York UCC, as
security for the payment and performance of the Obligations, to the extent
a lien in property of the nature of the Pledged Securities is perfectable
under the New York UCC by filing;
(g) each Pledgor that is an issuer of the Pledged Securities
confirms that it has received notice of the security interest granted
hereunder and consents to such security
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interest and agrees to transfer record ownership of the securities issued
by it in connection with any request by JPM;
Section 3.03. Registration in Nominee Name; Denominations. JPM shall
have the right (in its sole and absolute discretion) to hold the Pledged
Securities delivered pursuant to Section 3.01 in the name of the applicable
Pledgor, endorsed or assigned in blank or in favor of JPM or, in its reasonable
discretion, in its own name as pledgee or the name of its nominee (as pledgee or
as sub-agent). JPM shall have the right to exchange the certificates
representing Pledged Securities for certificates of smaller or larger
denominations for any purpose consistent with this Agreement. Each Pledgor shall
use its commercially reasonable efforts to cause any Guarantor that is not a
party to this Agreement to comply with a request by JPM, pursuant to this
Section 3.03, to exchange certificates representing Pledged Securities of such
Guarantor for certificates of smaller or larger denominations.
Section 3.04. Voting Rights; Dividends and Interest, Etc. (a) Unless
and until a Trigger Event shall have occurred, and subject to the Merger
Agreement:
(i) Each Pledgor shall be entitled to exercise any and all voting
and/or other consensual rights and powers inuring to an owner of Pledged
Securities or any part thereof for any purpose consistent with the terms
of this Agreement, the Merger Agreement and the Guaranties;
(ii) JPM shall promptly execute and deliver to each Pledgor, or
cause to be executed and delivered to such Pledgor, all such proxies,
powers of attorney and other instruments as such Pledgor may reasonably
request for the purpose of enabling such Pledgor to exercise the voting
and/or consensual rights and powers it is entitled to exercise pursuant to
subparagraph (i) above; and
(iii) Each Pledgor shall be entitled to receive and retain any and
all dividends, interest, principal and other distributions paid on or
distributed in respect of the Pledged Securities to the extent and only to
the extent that such dividends, interest, principal and other
distributions are permitted by, and otherwise paid or distributed in
accordance with, the terms and conditions of the Merger Agreement and
applicable laws; provided, that (A) any noncash dividends, interest,
principal or other distributions, payments or other consideration in
respect thereof, including any rights to receive the same to the extent
not so distributed or paid, that would constitute Pledged Securities,
whether resulting from a subdivision, combination or reclassification of
the outstanding Equity Interests of the issuer of any Pledged Securities,
received in exchange for Pledged Securities or any part thereof, or in
redemption thereof, as a result of any merger, consolidation, acquisition
or other exchange of assets to which such issuer may be a party or
otherwise or (B) any non-cash dividends and other distributions paid or
payable in respect of any Pledged Securities that would constitute Pledged
Securities, in connection with a partial or total liquidation or
dissolution or in connection with a reduction of capital, capital surplus
or paid in surplus, shall be and become part of the Collateral, and, if
received by any Pledgor, shall not be commingled by such Pledgor with any
of its other funds or property not constituting Collateral but shall be
held separate and apart therefrom, shall be held in
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trust for the benefit of JPM and shall be forthwith delivered to JPM in
the same form as so received (endorsed in a manner reasonably satisfactory
to JPM).
(b) Upon the occurrence of a Trigger Event (and until the
satisfaction of the Obligation giving rise to the Trigger Event and any other
then-due Obligations), and after notice by JPM to BSC of JPM's intention to
exercise its rights hereunder or under this provision in particular (provided
that no notice shall be required and the rights of JPM described in this
paragraph shall become immediately and automatically effective in the case of a
Trigger Event described in clause (B) of the definition thereof), all rights of
any Pledgor to receive dividends, interest, principal or other distributions
that such Pledgor is authorized to receive pursuant to paragraph (a)(iii) of
this Section 3.04 shall cease, and all such rights shall thereupon become vested
in JPM which shall have the sole and exclusive right and authority to receive
and retain such dividends, interest, principal or other distributions. All
dividends, interest, principal or other distributions received by any Pledgor
contrary to the provisions of this Section 3.04 shall not be commingled by such
Pledgor with any of its other funds or property (other than Collateral) but
shall be held separate and apart therefrom, shall be held in trust for the
benefit of JPM and shall be forthwith delivered to JPM in the same form as so
received (endorsed in a manner reasonably satisfactory to JPM). Any and all
money and other property paid over to or received by JPM pursuant to the
provisions of this paragraph (b) shall be retained by JPM in an account to be
established by JPM upon receipt of such money or other property and shall be
applied in accordance with the provisions of Section 5.02 hereof. After all
Obligations arising from any Trigger Events have been satisfied, JPM shall
promptly repay to each Pledgor (without interest) all dividends, interest,
principal or other distributions that such Pledgor would otherwise be permitted
to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.04 and
that remain in such account.
(c) After notice by JPM to BSC of JPM's intention to exercise its
rights hereunder or under this provision in particular (and after the occurrence
of a Trigger Event described in clause (B) of the definition thereof), all
rights of any Pledgor to exercise the voting and/or consensual rights and powers
it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.04,
and the obligations of JPM under paragraph (a)(ii) of this Section 3.04, shall
cease, and all such rights shall thereupon become vested in JPM which shall have
the sole and exclusive right and authority to exercise such voting and
consensual rights and powers, provided that JPM shall have the right from time
to time to permit the Pledgors to exercise such rights. After all Obligations
arising from Trigger Events have been satisfied, (i) each Pledgor shall have the
right to exercise the voting and/or consensual rights and powers that such
Pledgor would otherwise be entitled to exercise pursuant to the terms of
paragraph (a)(i) above and (ii) the obligations of JPM pursuant to the terms of
paragraph (a)(i) above shall be reinstated.
ARTICLE IV
SECURITY INTERESTS
Section 4.01. Security Interest. (a) As security for the payment or
performance when due (whether at the stated maturity, by acceleration or
otherwise), as the case may be, in full of its Obligations and the Obligations
of each Covered BSC Entity, each Pledgor hereby
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assigns and pledges to JPM and its successors and permitted assigns (on its own
behalf and as agent on behalf of each other JPM Party) a security interest (the
"Security Interest") in all right, title and interest in, to or under any and
all of the following assets and properties now owned or at any time hereafter
acquired by such Pledgor or in which such Pledgor now has or at any time in the
future may acquire any right, title or interest (collectively, the
"Collateral"):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash, cash equivalents and Deposit Accounts, now or
hereafter existing, and all balances in any such Deposit Accounts;
(iv) any claim of any kind or nature of any Pledgor against any JPM
Party;
(v) all Documents;
(vi) all Equipment;
(vii) all General Intangibles, including rights in respect of
Financial Contracts, Lease Rights, personal property leases and other
contractual entitlements;
(viii) all Instruments;
(ix) all Inventory;
(x) all Investment Property and, to the extent not otherwise
constituting Investment Property, all Equity Interests, Pledged Debt
Obligations, securities (whether certificated or uncertificated), security
entitlements, securities accounts (and the contents thereof), commodity
contracts and commodity accounts, money, certificates of deposit,
commercial paper, instruments, financial assets, credits, claims, demands
and precious metals (to the extent applicable, as the foregoing terms are
used and defined in the New York UCC), in each case whether held by or
through any JPM Party, The Depository Trust Company, any other securities
intermediary, the Fed, any other Federal Reserve Bank or otherwise and in
each case including any certificates or other documents evidencing the
same and, subject to Article III, all rights and privileges of such
Pledgor with respect to the same;
(xi) all Letter of Credit Rights;
(xii) all Commercial Tort Claims;
(xiii) all Intellectual Property;
(xiv) all other personal property not otherwise described above
(except for property specifically excluded from any defined term used in
any of the foregoing clauses);
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(xv) all books and records pertaining to the Collateral; and
(xvi) to the extent not otherwise included, and subject to Article
III, all proceeds, products, accessions, substitutions, supporting
obligations and products of any and all of the foregoing (including
interest, dividends, cash, instruments and other property from time to
time received, receivable or otherwise distributed in respect of, in
exchange for or upon the conversion of any of the foregoing) or of any
other property of the Pledgors and all collateral security and guarantees
given by any person with respect to any of the foregoing, including all
shares, securities, moneys or property representing a dividend on any of
the foregoing, or representing a distribution or return of capital upon or
in respect of any of the foregoing or otherwise received in exchange
therefor, and any subscription warrants, rights or options issued to the
holders or otherwise in respect thereof.
Notwithstanding the foregoing or anything to the contrary in this Agreement,
(A) to the extent that the creation of the Security Interest on any
specified portion of the Collateral (the "Restricted Collateral") to secure any
specified portion of the Obligations (the "Restricted Obligations") would give
rise to (x) an obligation or obligations under any contracts, agreements or
instruments binding on any Pledgor or its property to provide an equal and
ratable (or other) lien on the Restricted Collateral to secure liabilities of
any Pledgor or Pledgors in an aggregate amount that is material to BSC and its
Affiliates taken as a whole or (y) a default, event of default or similar
condition however denominated that (with or without the lapse of time, the
giving of notice or both) would permit (1) the holder of any indebtedness (or
commitment to provide indebtedness) for borrowed money in an amount material to
the applicable Pledgor to accelerate the maturity (or terminate the commitment
to provide) thereof, or (2) the holder of any indebtedness for borrowed money to
accelerate the maturity thereof if the effect of such acceleration would, in
turn, be to permit the holder of any other indebtedness or counterparty(ies) to
any Financial Contract(s) in an aggregate amount material to any of BSC or its
Subsidiaries party to any affected Financial Contract to accelerate or terminate
such indebtedness or Financial Contract(s), then, in any such case under (x) or
(y), the Security Interest with respect to such Restricted Collateral shall not
secure such Restricted Obligations to such extent (and shall secure such
Restricted Obligations upon the removal or termination of the applicable
agreement or condition under (x) or (y)). Without limitation of the generality
of the foregoing, (aa) the Security Interest on any shares of Voting Stock of
any Restricted Subsidiary (as such terms are defined, respectively, in the
Indenture and the Note Issuance Agreement) shall not secure Obligations
consisting of indebtedness for borrowed money until indebtedness outstanding
under the Indenture and Note Issuance Agreement shall be repaid or defeased in
full, and (bb) the Security Interest shall not extend to Equity Interests if a
lien thereon would violate Ownership Limitations for so long as the applicable
agreement is in effect; and
(B) subject to the provisos of this paragraph, this Agreement shall
not constitute a grant of a security interest in:
(i) any Letter of Credit Rights to the extent any Pledgor is required by
applicable law to apply the proceeds of a drawing of such Letter of
Credit for a specified purpose;
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(ii) any property of any kind or nature the granting of a security interest
in which would constitute a breach of any law, rule or regulation of
any Governmental Authority (including Equity Interests in Regulated
Entities to the extent a pledge of such Equity Interests is so
restricted);
(iii) any Deposit Account, Investment Property or other asset or property
constituting (x) a segregated account maintained pursuant to Section 4d
of the Commodity Exchange Act and Regulation 1.20 thereunder, (y) an
account maintained by the Pledgor pursuant to Rule 15c3-3 under the
Securities Exchange Act of 1934 (the "Exchange Act") as a "Special
Reserve Account for the Exclusive Benefit of Customers" and (z) any
account in which JPM has waived, or in the future shall waive, in
writing its lien in accordance with the foregoing acts and regulations
or otherwise in respect of customer securities of any of the Covered
BSC Entities,
(iv) any Financial Contract, assets securing the obligations under a
Financial Contract, or right therein to the extent that the pledge
thereof would violate or otherwise give rise to an event of default
under the applicable Financial Contract entitling the counterparty to
the applicable Pledgor to terminate or close out (other than to the
extent that any such right would be rendered ineffective pursuant to
Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other
applicable law (including, without limitation, Title 11 of the United
States Code) or principles of equity) such Financial Contract on
account of the existence (without enforcement) of the Security
Interest;
(v) any Pledgor's right, title or interest in any license, contract or
agreement other than a Financial Contract to which such Pledgor is a
party or any of its right, title or interest thereunder to the extent,
but only to the extent, that such a grant would, under the terms of
such license, contract or agreement, (i) result in a breach of the
terms of, or constitute a default under, such license, contract or
agreement that, in either case, would give rise to a loss or liability
that would entirely offset the value of such license, contract or
agreement, or (ii) result in the abandonment, invalidation or
unenforceability of, such license, contract or agreement to which such
Pledgor is a party (other than to the extent that any such term would
be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or
9-409 of the New York UCC or any other applicable law (including,
without limitation, Title 11 of the United States Code) or principles
of equity); provided, that immediately upon the ineffectiveness, lapse
or termination of any such provision, the Collateral shall include, and
such Pledgor shall be deemed to have granted a security interest in,
all such rights and interests as if such provision had never been in
effect;
(vi) any Equity Interest or other interest in ▇▇▇▇▇▇▇/Madison Avenue LLC or
its manager, ▇▇▇▇▇▇▇/Madison Avenue Inc., or any asset of any type or
nature of ▇▇▇▇▇▇▇/Madison Avenue LLC or ▇▇▇▇▇▇▇/Madison Avenue Inc.;
(vii) any Lease Right to the extent that such grant is not permitted under
the terms of the relevant Lease and violates or causes a default
thereunder, in either case that would entirely offset the value of such
Lease Right;
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(viii) any asset that constitutes Margin Stock to the extent that the granting
of the Security Interest therein would violate or be inconsistent with
the provisions of Regulations T, U and X;
(ix) to the extent applicable law requires that a Subsidiary of any Pledgor
issue directors' qualifying shares, such shares or nominee or other
similar shares; or
(x) any asset set forth on Schedule 7.19;
provided, that any such asset shall immediately, without further act or deed,
become subject to the Security Interest upon termination or lapse of the
agreement or condition set forth above with respect to such asset; and provided,
further that JPM shall in any event, except to the extent that the granting
thereof would independently violate any of (i) through (vii) above, have and
retain a lien in the proceeds of any such asset. With respect to any asset
excluded from the Security Interest pursuant to subsections (i) - (x) above, any
lien purported to be granted hereunder in any such asset shall immediately and
automatically, with no further act or deed become null and void ab initio.
Each Pledgor hereby irrevocably authorizes JPM at any time and from
time to time to file in any relevant jurisdiction any initial financing
statements (including fixture filings) with respect to the Collateral or any
part thereof and amendments thereto that contain the information required by
Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the
filing of any financing statement or amendment, including (i) whether such
Pledgor is an organization, the type of organization and any organizational
identification number issued to such Pledgor, (ii) in the case of a financing
statement filed as a fixture filing, a sufficient description of the real
property to which such Collateral relates and (iii) a description of collateral
that describes such property in any other manner as JPM may reasonably determine
is necessary or advisable to ensure the perfection of the security interest in
the Collateral granted under this Agreement, including describing such property
as "all assets" or "all property". Each Pledgor agrees to provide such
information to JPM promptly upon request.
JPM is further authorized to file with the United States Patent and
Trademark Office or United States Copyright Office (or any successor office or
any similar office in any other country) such documents as may be reasonably
necessary or advisable for the purpose of perfecting, confirming, continuing,
enforcing or protecting the Security Interest granted by each Pledgor, without
the signature of such Pledgor, and naming such Pledgor or the Pledgors as
debtors and JPM as secured party.
(b) The Security Interest is granted as security only and shall not
subject JPM to, or in any way alter or modify, any obligation or liability of
any Pledgor with respect to or arising out of the Collateral.
Section 4.02. Representations and Warranties. The Pledgors jointly
and severally represent and warrant to JPM that:
(a) Each Pledgor has full power and authority to grant to JPM the
Security Interest in such Collateral pursuant hereto and to execute, deliver and
perform its obligations in accordance with the terms of this Agreement, without
the consent or approval of any other
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person other than any consent or approval that has been obtained and is in full
force and effect or has otherwise been disclosed herein or in the Merger
Agreement.
(b) The Security Interest constitutes (i) a legal and valid security
interest in all the Collateral securing the payment and performance of the
Obligations, (ii) subject to appropriate filings in the relevant jurisdictions,
a perfected security interest in all Collateral (other than Commercial Tort
Claims) in which a security interest may be perfected by filing, recording or
registering a financing statement in the United States (or any political
subdivision thereof) and its territories and possessions pursuant to the Uniform
Commercial Code.
Section 4.03. Covenants. (a) Each Pledgor agrees, at its own
expense, to execute, acknowledge, deliver and cause to be duly filed all such
further instruments and documents and take all such actions as JPM may from time
to time reasonably request to better assure, preserve, protect and perfect the
Security Interest and the rights and remedies created hereby, including, without
limitation, the payment of any fees and taxes required in connection with the
execution and delivery of this Agreement and the granting of the Security
Interest and the filing of any financing statements (including fixture filings)
or other documents in connection herewith or therewith, all in accordance with
the terms hereof.
Without limiting the generality of the foregoing, each Pledgor
hereby authorizes JPM, with prompt notice thereof to the Pledgors, to supplement
this Agreement by supplementing Schedule III or adding additional schedules
hereto to specifically identify any asset or item that may constitute material
Copyrights, Patents, Trademarks, Copyright Licenses, Patent Licenses or
Trademark Licenses; provided that any Pledgor shall have the right, exercisable
within 30 days after BSC has been notified by JPM of the specific identification
of such Collateral, to advise JPM in writing of any inaccuracy of the
representations and warranties made by such Pledgor hereunder with respect to
such Collateral. Each Pledgor agrees that, upon JPM's request, it will use its
commercially reasonable efforts to take such action as shall be necessary in
order that all representations and warranteis hereunder shall be true and
correct with respect to such Collateral within 90 days after the date it has
been notified by JPM of the specific identification of such Collateral.
(b) JPM shall have the right to verify the validity, amount,
quality, quantity, value, condition and status of, or any other matter relating
to, the Collateral, including, in the case of Accounts or Collateral in the
possession of any third person, by contacting Account Debtors or the third
person possessing such Collateral for the purpose of making such a verification.
(c) At its option, JPM may discharge past due taxes, assessments,
charges, fees, Liens, security interests or other encumbrances at any time
levied or placed on the Collateral and not a Permitted Lien, and may pay for the
maintenance and preservation of the Collateral to the extent any Pledgor fails
to do so as required by the Merger Agreement or this Agreement, and each Pledgor
jointly and severally agrees to reimburse JPM on demand for any reasonable
payment made or any reasonable expense incurred by JPM pursuant to the foregoing
authorization; provided, however, that nothing in this Section 4.03(d) shall be
interpreted as excusing any Pledgor from the performance of, or imposing any
obligation on JPM to cure or perform, any covenants or other promises of any
Pledgor with respect to taxes, assessments,
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charges, fees, Liens, security interests or other encumbrances and maintenance
as set forth herein.
(d) Each Pledgor (rather than JPM) shall remain liable for the
observance and performance of all the conditions and obligations to be observed
and performed by it under each contract, agreement or instrument relating to the
Collateral and each Pledgor jointly and severally agrees to indemnify and hold
harmless JPM from and against any and all liability for such performance.
(e) None of the Pledgors shall make or permit to be made an
assignment, pledge or hypothecation of the Collateral or shall grant any other
Lien in respect of the Collateral, except as permitted by the Merger Agreement
or Section 7.18 hereof. None of the Pledgors shall make or permit to be made any
transfer of the Collateral and each Pledgor shall remain at all times in
possession of the Collateral owned by it, except as permitted by the Merger
Agreement or Section 7.18 hereof.
(f) Each Pledgor irrevocably makes, constitutes and appoints JPM
(and all officers, employees or agents designated by JPM) as such Pledgor's true
and lawful agent (and attorney-in-fact) for the purpose of making, settling and
adjusting claims in respect of Collateral under policies of insurance, endorsing
the name of such Pledgor on any check, draft, instrument or other item of
payment for the proceeds of such policies of insurance and for making all
determinations and decisions with respect thereto.
(g) Other than as permitted under the Merger Agreement or Section
7.18 hereof, the Pledgors shall not create, incur, assume or permit to exist any
lien on any property or assets (including stock or other securities of any
person, including any Subsidiary) at the time owned by them or on any income or
revenues or rights in respect of any thereof.
Section 4.04. Collateral Held by JPM. For the avoidance of doubt and
not in limitation of the rights of JPM under Sections 9-104(a)(1), 9-106(a) and
8-106(e) of the New York UCC, the Pledgors and JPM (acting as a bank with
respect to any deposit accounts (the "JPM Accounts") and as a securities
intermediary with respect to any securities accounts (the "JPM Securities
Accounts"), in either case maintained at or with JPM or any of its Affiliates),
acknowledge and agree with respect thereto, that JPM, as the secured party
hereunder, may issue instructions to direct disposition of any and all of the
funds in the JPM Accounts (and acting as the bank will comply with such
instructions) and may issue entitlement orders with respect to any and all JPM
Securities Accounts (and acting as the securities intermediary will comply with
such entitlement orders), in each case, without the consent of any Pledgor.
Section 4.05. Other Actions. In order to further ensure the
attachment, perfection and priority of, and the ability of JPM to enforce JPM's
security interest in the Collateral, each Pledgor agrees, in each case at such
Pledgor's own expense, to take the following actions:
(a) Investment Property. Upon JPM's request, any Pledgor shall
deliver any Certificated Security included in the Pledged Securities then in
such Pledgor's possession, accompanied by such instruments of transfer or
assignment duly executed in blank as JPM may
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from time to time reasonably specify. If any security of a domestic issuer now
owned or hereafter acquired by any Pledgor is uncertificated and is issued to
such Pledgor or its nominee directly by the issuer thereof, (i) upon JPM's
reasonable request or (ii) upon the occurrence and during the continuance of a
Trigger Event, each Pledgor shall pursuant to an agreement in form and substance
reasonably satisfactory to JPM, either cause the issuer to agree to comply with
instructions from JPM as to such security, without further consent of any
Pledgor or such nominee, or cause the issuer to register JPM as the registered
owner of such security.
(b) Financial Intermediaries. If requested by JPM, Pledgors shall
instruct third-party financial intermediaries in possession of any Collateral,
and shall use reasonable best efforts to cause such financial intermediaries to
enter into control and other agreements, as necessary and appropriate to
effectuate and perfect the liens contemplated hereby.
(c) Commercial Tort Claims. Upon the request of JPM from time to
time, Pledgors shall notify JPM of any Commercial Tort Claim in an amount
reasonably estimated to exceed $50.0 million then held by such Pledgor, and
shall provide a summary description of such claim, and grant to JPM in writing a
security interest therein and in the proceeds thereof, all under the terms and
provisions of this Agreement, with such writing to be in form and substance
reasonably satisfactory to JPM.
(d) Foreign Collateral. Execute such further documents and take such
further actions as JPM may reasonably request under local law to establish the
guaranties contemplated herein and create and perfect liens and security
interests in the portion of the Collateral located in (or held by entities
located or organized in) jurisdictions outside the United States.
(e) Deposit Accounts/Securities Accounts. If requested by JPM, move
any and all Deposit Accounts and Securities Accounts of any Pledgor held at a
third party depository institution to JPM or an affiliate of JPM; provided, that
no such request shall unduly interfere with the ordinary course operation of the
business of the applicable Pledgor and such Pledgor shall, in any event, have a
reasonable amount of time to comply with such request.
(f) Real Property. Execute, deliver, file and otherwise cause to
become effective mortgages, assignments and other agreements in appropriate form
with respect to real property fee and leasehold interests, in each case to the
extent requested by JPM unless such action would violate in any material respect
a legal (including regulatory) or enforceable contractual prohibition or
obligation binding on the applicable Pledgor that would give rise to a loss
(including without limitation a termination of a benefit) or liability that is
material to BSC and its Subsidiaries taken as a whole
(g) General. Execute any and all further documents, financing
statements, agreements and instruments (including an Intellectual Property
Security Agreement), and take all such further actions (including the filing and
recording of financing statements, fixture filings, mortgages and other
documents and recordings of liens in stock registries, including without
limitation in the United States Patent and Trademark Office) that may be
required under any applicable law, or that JPM may reasonably request, to effect
and perfect the liens contemplated herein, all at the expense of the Pledgors,
and provide to JPM, from time to time upon reasonable
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request, evidence reasonably satisfactory to JPM as to the perfection and
priority of the liens created or intended to be created hereunder.
ARTICLE V
REMEDIES; APPLICATION OF PROCEEDS
Section 5.01. Remedies Upon Default. Upon the occurrence of a
Trigger Event and until the satisfaction of the Obligation giving rise to the
Trigger Event and any other then-due Obligations, each Pledgor agrees to deliver
on demand each item of Collateral to JPM, and it is agreed that JPM shall have
the right to take any of or all the following actions at the same or different
times: (a) with respect to any Collateral consisting of Intellectual Property,
on demand, to cause the Security Interest to become an assignment, transfer and
conveyance of any of or all such Collateral by the applicable Pledgors to JPM or
to license or sublicense, whether general, special or otherwise, and whether on
an exclusive or a nonexclusive basis, any such Collateral throughout the world
on such terms and conditions and in such manner as JPM shall determine (other
than in violation of any then-existing licensing arrangements to the extent that
waivers thereunder cannot be obtained with the use of commercially reasonable
efforts, which each Pledgor hereby agrees to use) and (b) with or without legal
process and with or without prior notice or demand for performance, to take
possession of the Collateral and without liability for trespass to the
applicable Pledgor to enter any premises where the Collateral may be located for
the purpose of taking possession of or removing the Collateral and, generally,
to exercise any and all rights afforded to a secured party under the applicable
Uniform Commercial Code or other applicable law. Without limiting the generality
of the foregoing, each Pledgor agrees that JPM shall have the right, subject to
the mandatory requirements of applicable law, to sell or otherwise dispose of
all or any part of the Collateral at a public or private sale or at any broker's
board or on any securities exchange, for cash, upon credit or for future
delivery as JPM shall deem appropriate. JPM shall be authorized in connection
with any sale of a security (if it deems it advisable to do so) pursuant to the
foregoing to restrict the prospective bidders or purchasers to persons who
represent and agree that they are purchasing such security for their own
account, for investment, and not with a view to the distribution or sale
thereof. Upon consummation of any such sale of Collateral pursuant to this
Section 5.01, JPM shall have the right to assign, transfer and deliver to the
purchaser or purchasers thereof the Collateral so sold. Each such purchaser at
any such sale shall hold the property sold absolutely, free from any claim or
right on the part of any Pledgor, and each Pledgor hereby waives and releases
(to the extent permitted by law) all rights of redemption, stay, valuation and
appraisal that such Pledgor now has or may at any time in the future have under
any rule of law or statute now existing or hereafter enacted.
JPM shall give the applicable Pledgors 10 Business Days' written
notice (which each Pledgor agrees is reasonable notice within the meaning of
Section 9-611 of the New York UCC or its equivalent in other jurisdictions) of
JPM's intention to make any sale of Collateral (except where notice shall not be
required under the New York UCC no notice shall be required). Such notice, in
the case of a public sale, shall state the time and place for such sale and, in
the case of a sale at a broker's board or on a securities exchange, shall state
the board or exchange at which such sale is to be made and the day on which the
Collateral, or portion thereof, will first be offered for sale at such board or
exchange. Any such public sale shall be held at such time or
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times within ordinary business hours and at such place or places as JPM may fix
and state in the notice (if any) of such sale. At any such sale, the Collateral,
or the portion thereof, to be sold may be sold in one lot as an entirety or in
separate parcels, as JPM may (in its sole and absolute discretion) determine.
JPM shall not be obligated to make any sale of any Collateral if it shall
determine not to do so, regardless of the fact that notice of sale of such
Collateral shall have been given. JPM may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for sale, and such sale may,
without further notice, be made at the time and place to which the same was so
adjourned. In the case of any sale of all or any part of the Collateral made on
credit or for future delivery, the Collateral so sold may be retained by JPM
until the sale price is paid by the purchaser or purchasers thereof, but JPM
shall not incur any liability in the event that any such purchaser or purchasers
shall fail to take up and pay for the Collateral so sold and, in the case of any
such failure, such Collateral may be sold again upon notice given in accordance
with provisions above. At any public (or, to the extent permitted by law,
private) sale made pursuant to this Section 5.01, JPM may bid for or purchase
for cash, free (to the extent permitted by law) from any right of redemption,
stay, valuation or appraisal on the part of any Pledgor (all such rights being
also hereby waived and released to the extent permitted by law), the Collateral
or any part thereof offered for sale and JPM may, upon compliance with the terms
of sale, hold, retain and dispose of such property in accordance with Section
5.02 hereof without further accountability to any Pledgor therefor. For purposes
hereof, a written agreement to purchase the Collateral or any portion thereof
shall be treated as a sale thereof; JPM shall be free to carry out such sale
pursuant to such agreement and no Pledgor shall be entitled to the return of the
Collateral or any portion thereof subject thereto, notwithstanding the fact that
after JPM shall have entered into such an agreement all Events of Default shall
have been remedied and the Obligations paid in full. As an alternative to
exercising the power of sale herein conferred upon it, JPM may proceed by a suit
or suits at law or in equity to foreclose this Agreement and to sell the
Collateral or any portion thereof pursuant to a judgment or decree of a court or
courts having competent jurisdiction or pursuant to a proceeding by a
court-appointed receiver. Any sale pursuant to the provisions of this Section
5.01 shall be deemed to conform to the commercially reasonable standards as
provided in Section 9-610(b) of the New York UCC or its equivalent in other
jurisdictions.
Section 5.02. Apportionment, Application, and Reversal of Payments.
(a) All payments received by JPM for application to the Obligations
shall be applied to such Obligations in such manner as JPM shall determine in
its sole discretion.
(b) JPM shall have absolute discretion as to the time of application
of any such proceeds, moneys or balances in accordance with this Agreement. Upon
any sale of Collateral by JPM (including pursuant to a power of sale granted by
statute or under a judicial proceeding), the receipt of the purchase money by
JPM or of the officer making the sale shall be a sufficient discharge to the
purchaser or purchasers of the Collateral so sold and such purchaser or
purchasers shall not be obligated to see to the application of any part of the
purchase money paid over to JPM or such officer or be answerable in any way for
the misapplication thereof.
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(c) If, after receipt of any payment which is applied to the payment
of all or any part of any Obligations, JPM is for any reason compelled to
surrender such payment or proceeds to any person because such payment or
application of proceeds is invalidated, declared fraudulent, set aside,
determined to be void or voidable as a preference, impermissible set-off, or a
diversion of trust funds, or for any other reason, then the Obligations or part
thereof intended to be satisfied shall be revived and continued and this
Agreement shall continue in full force as if such payment or proceeds had not
been received by JPM and each Pledgor shall be liable to pay to JPM, and shall
indemnify JPM and holds JPM harmless for the amount of such payment or proceeds
surrendered. The provisions of this Section 5.02(c) shall be and remain
effective notwithstanding any contrary action which may have been taken by JPM
in reliance upon such payment or application of proceeds, and any such contrary
action so taken shall be without prejudice to JPM's rights under this Agreement
and shall be deemed to have been conditioned upon such payment or application of
proceeds having become final and irrevocable. The provisions of this Section
5.02(d) shall survive the termination of this Agreement.
Section 5.03. Securities Act, Etc. Each Pledgor understands that
compliance with the Securities Act of 1933, as now or hereafter in effect, or
any similar federal statute hereafter enacted analogous in purpose or effect
(such Act and any such similar statute as from time to time in effect being
called the "Federal Securities Laws") might limit the course of conduct of JPM
if JPM were to attempt to dispose of all or any part of the Pledged Securities,
and might also limit the extent to which or the manner in which any subsequent
transferee of any Pledged Securities could dispose of the same. Similarly, there
may be other legal restrictions or limitations affecting JPM in any attempt to
dispose of all or part of the Pledged Securities under applicable Blue Sky or
other state securities laws or similar laws analogous in purpose or effect. Each
Pledgor acknowledges and agrees that in light of such restrictions and
limitations, JPM, in its sole and absolute discretion, (a) may proceed to make
such a sale whether or not a registration statement for the purpose of
registering such Pledged Securities or part thereof shall have been filed under
the Federal Securities Laws or, to the extent applicable, Blue Sky or other
state securities laws and (b) may approach and negotiate with a single potential
purchaser to effect such sale. Each Pledgor acknowledges and agrees that any
such sale might result in prices and other terms less favorable to the seller
than if such sale were a public sale without such restrictions. In the event of
any such sale, JPM shall not incur any responsibility or liability for selling
all or any part of the Pledged Securities at a price that JPM, in its sole and
absolute discretion, may in good ▇▇▇▇▇ ▇▇▇▇ reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might have
been realized if the sale were deferred until after registration as aforesaid or
if more than a single purchaser were approached. The provisions of this Section
5.03 will apply notwithstanding the existence of a public or private market upon
which the quotations or sales prices may exceed substantially the price at which
JPM sells.
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ARTICLE VI
INDEMNITY, SUBROGATION AND SUBORDINATION
Section 6.01. Indemnity. In addition to all such rights of
indemnity, reimbursement, contribution and subrogation as JPM or the Guarantors
may have under applicable law (but subject, in the case of the Guarantors, to
Section 6.03 hereof), the Primary Obligor with respect to each Underlying
Liability agrees that (a) such Primary Obligor is primarily liable with respect
to such Underlying Liability and shall pay such Underlying Liability when due
and promptly reimburse JPM in respect of any payment by JPM under any Guaranty
in respect of such Underlying Liability, and (b) in the event a payment shall be
made by any Guarantor under this Agreement in respect of any Obligation arising
from the satisfaction of an Underlying Liability, the applicable Primary
Obligor, if any, shall indemnify such Guarantor for the full amount of such
payment and such Guarantor shall be subrogated to the rights of the person to
whom such payment shall have been made to the extent of such payment.
Section 6.02. Contribution and Subrogation. Each Guarantor (a
"Contributing Guarantor") agrees (subject to Section 6.03 hereof) that, in the
event a payment shall be made by any other Guarantor hereunder in respect of any
Obligation arising from the satisfaction of any Underlying Liability of an
applicable Primary Obligor or assets of any other Guarantor shall be sold
pursuant to this Agreement to satisfy any Obligation arising from the
satisfaction of any Underlying Liability of an applicable Primary Obligor and
such other Guarantor (the "Claiming Guarantor") shall not have been fully
indemnified by such Primary Obligor, as provided in Section 6.01 hereof, the
Contributing Guarantor shall indemnify the Claiming Guarantor in an amount equal
to the amount of such payment or the greater of the book value or the fair
market value of such assets, as applicable, in each case multiplied by a
fraction of which the numerator shall be the net worth of such Contributing
Guarantor on the date hereof and the denominator shall be the aggregate net
worth of all the Guarantors on the date hereof (or, in the case of any Guarantor
becoming a party hereto pursuant to Section 7.16 hereof, the date of the
supplement hereto executed and delivered by such Guarantor). Any Contributing
Guarantor making any payment to a Claiming Guarantor pursuant to this Section
6.02 shall be subrogated to the rights of such Claiming Guarantor under Section
6.01 hereof to the extent of such payment.
Section 6.03. Subordination; Subrogation. (a) Each Guarantor hereby
subordinates any and all debts, liabilities and other obligations owed to such
Guarantor by each other Guarantor and by each other Affiliate of BSC (the
"Subordinated Obligations") to the Obligations to the extent and in the manner
hereinafter set forth in this Section 6.03:
(i) Prohibited Payments, Etc. Each Guarantor may receive
payments from any other Guarantor on account of the Subordinated
Obligations. After the occurrence and during the continuance of any
Trigger Event, no Guarantor shall demand, accept or take any action
to collect any payment on account of the Subordinated Obligations
until the Obligations have been paid in full in cash.
(ii) Prior Payment of Guaranteed Obligations. In any
proceeding under the U.S. Bankruptcy Code or any other federal,
state or foreign bankruptcy, insolvency, receivership or similar law
relating to any other Guarantor, each
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Guarantor agrees that JPM shall be entitled to receive payment in
full in cash of all Obligations (including all interest and expenses
accruing after the commencement of a proceeding under any U.S.
Bankruptcy Code or any other federal, state or foreign bankruptcy,
insolvency, receivership or similar law, whether or not constituting
an allowed claim in such proceeding ("Post-Petition Interest"))
before such Guarantor receives payment of any Subordinated
Obligations.
(iii) Turn-Over. After the occurrence and during the
continuance of any Trigger Event, each Guarantor shall, if JPM so
requests, collect, enforce and receive payments on account of the
Subordinated Obligations and deliver such payments to JPM on account
of the Obligations (including all Post-Petition Interest), together
with any necessary endorsements or other instruments of transfer,
but without reducing or affecting in any manner the liability of
such Guarantor under the other provisions of this Agreement.
(iv) Collateral Agent Authorization. After the occurrence and
during the continuance of any Trigger Event, JPM is authorized and
empowered (but without any obligation to so do), in its discretion,
(i) in the name of each Guarantor, to collect and enforce, and to
submit claims in respect of, the Subordinated Obligations and to
apply any amounts received thereon to the Obligations (including any
and all Post-Petition Interest), and (ii) to require each Guarantor
(A) to collect and enforce, and to submit claims in respect of, the
Subordinated Obligations and (B) to pay any amounts received on such
obligations to JPM for application to the Guaranteed Obligations
(including any and all Post-Petition Interest).
(b) Each Guarantor hereby unconditionally and irrevocably agrees not
to exercise any rights that it may now have or hereafter acquire against each
Primary Obligor, any other Guarantor or any other insider guarantor that arise
from the existence, payment, performance or enforcement of such Guarantor's
obligations under or in respect of the guarantee set forth in Article II hereof,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in any
claim or remedy of JPM against the any Primary Obligor, any other Guarantor or
any other insider guarantor or any Collateral, whether or not such claim, remedy
or right arises in equity or under contract, statute or common law, including,
without limitation, the right to take or receive from any Primary Obligor, any
other Guarantor or any other insider guarantor, directly or indirectly, in cash
or other property or by set-off or in any other manner, payment or security on
account of such claim, remedy or right, unless and until all of the Obligations
all other amounts payable under the guarantee set forth in Article II and all of
the Underlying Liabilities shall have been paid in full in cash and JPM has no
further actual or contingent liabilities under any Guaranty or to a creditor of
any Covered BSC Entity in respect of any Underlying Liability. If any amount
shall be paid to any Guarantor in violation of the immediately preceding
sentence at any time prior to the latest of (a) the payment in full in cash of
the Obligations and all other amounts payable under the guarantee set forth in
Article II and the Underlying Liabilities and (b) the first date on which JPM
has no further actual or contingent liabilities under any Guaranty or to a
creditor of any Covered BSC Entity, such amount shall be received and held in
trust for the
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benefit of JPM, shall be segregated from other property and funds of such
Guarantor and shall forthwith be paid or delivered to JPM in the same form as so
received (with any necessary endorsement or assignment) to be credited and
applied to the Obligations and all other amounts payable under the guarantee set
forth in Article II, whether matured or unmatured, in accordance with the terms
of this Agreement, each Guaranty and the Merger Agreement, or to be held as
Collateral for any Obligations or other amounts payable under such guarantee
thereafter arising. If (i) any Guarantor shall make payment to JPM of all or any
part of the Obligations, (ii) all of the Obligations, all other amounts payable
under the guarantee set forth in Article II and all Underlying Liabilities shall
have been paid in full in cash, (iii) and JPM has no further actual or
contingent liabilities under any Guaranty, to a creditor of any Covered BSC
Entity or in respect of any Underlying Liabilities, JPM will, at such
Guarantor's request and expense, execute and deliver to such Guarantor
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to such Guarantor of an
interest in the Obligations resulting from such payment made by such Guarantor
pursuant to such guarantee.
ARTICLE VII
MISCELLANEOUS
Section 7.01. Notices. All communications and notices hereunder
shall (except as otherwise expressly permitted herein) be in writing and given
as provided in the Restated Guaranty. All communications and notices hereunder
to any Subsidiary Party shall be given to it in care of BSC, with such notice to
be given as provided in the Merger Agreement.
Section 7.02. Security Interest Absolute. All rights of JPM
hereunder, the Security Interest in the Collateral, the security interest in the
Pledged Securities and all obligations of each Pledgor hereunder shall be
absolute and unconditional irrespective of (a) any lack of validity or
enforceability of any Guaranty, the Merger Agreement, any agreement with respect
to any of the Obligations, the Underlying Liabilities or any other Obligation
Document, agreement or instrument relating to any of the foregoing, (b) any
change in the time, manner or place of payment of, or in any other term of, all
or any of the Obligations, the Underlying Liabilities or any other amendment or
waiver of or any consent to any departure from any Guaranty, the Merger
Agreement, any Obligation Document or any other agreement or instrument, (c) any
exchange, release or non-perfection of any Lien on other collateral, or any
release or amendment or waiver of or consent under or departure from any
guarantee, securing or guaranteeing all or any of the Obligations or (d) any
other circumstance that might otherwise constitute a defense available to, or a
discharge of, any Pledgor in respect of the Obligations or this Agreement (other
than a defense of payment or performance).
Section 7.03. Limitation By Law. All rights, remedies and powers
provided in this Agreement may be exercised only to the extent that the exercise
thereof does not violate any applicable provision of law, and all the provisions
of this Agreement are intended to be subject to all applicable mandatory
provisions of law that may be controlling and to be limited to the extent
necessary so that they shall not render this Agreement invalid, unenforceable,
in whole or in part, or not entitled to be recorded, registered or filed under
the provisions of any applicable law.
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Section 7.04. Binding Effect; Several Agreement. This Agreement
shall become effective as to any party to this Agreement when a counterpart
hereof executed on behalf of such party shall have been delivered to JPM and JPM
and a counterpart hereof shall have been executed on behalf of JPM, and
thereafter shall be binding upon such party, JPM and each of their respective
permitted successors and assigns, and shall inure to the benefit of such party,
JPM and its permitted successors and assigns, except that no party shall have
the right to assign or transfer its rights or obligations hereunder or any
interest herein or in the Collateral (and any such assignment or transfer shall
be void) except as expressly contemplated by this Agreement. This Agreement
shall be construed as a separate agreement with respect to each party and may be
amended, modified, supplemented, waived or released with respect to any party
without the approval of any other party and without affecting the obligations of
any other party hereunder.
Section 7.05. Successors and Assigns. Whenever in this Agreement any
of the parties hereto is referred to, such reference shall be deemed to include
the permitted successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of any Pledgor or JPM that are contained in this
Agreement shall bind and inure to the benefit of their respective permitted
successors and assigns; provided that no Pledgor may assign, transfer or
delegate any of its rights or obligations under this Agreement without the prior
written consent of JPM.
Section 7.06. JPM's Fees and Expenses; Indemnification. (a) Each
Pledgor jointly and severally agrees to indemnify JPM against, and hold JPM
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including reasonable counsel fees, charges and disbursements, incurred
by or asserted against JPM arising out of, in connection with, or as a result
of, (i) the performance of this Agreement, any Guaranty or any agreement or
instrument contemplated hereby or thereby, the performance by the parties hereto
and thereto of their respective obligations thereunder or the consummation of
the transactions contemplated hereby, or (ii) any claim, litigation,
investigation or proceeding relating to any of the foregoing, or to the
Collateral, whether or not JPM is a party thereto; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or willful misconduct of JPM.
(b) Any such amounts payable as provided hereunder shall be
additional Obligations guaranteed and secured hereby. The provisions of this
Section 7.06 shall remain operative and in full force and effect regardless of
the termination of this Agreement, any Guaranty or the Merger Agreement, the
repayment of any of the Obligations, the invalidity or unenforceability of any
term or provision of this Agreement, any Guaranty or the Merger Agreement. All
amounts due under this Section 7.06 shall be payable on written demand therefor,
accompanied by reasonable documentation with respect to any reimbursement,
indemnification or other amount requested.
(c) Any payment required under this Agreement to be made to any JPM
Party other than JPM shall be made to JPM as agent for such JPM Party.
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Section 7.07. JPM Appointed Attorney-in-Fact. Each Pledgor hereby
appoints JPM an attorney-in-fact of such Pledgor for the purpose of carrying out
the provisions of this Agreement, and taking any action (including without
limitation the filing of UCC-1 statements and the execution of supplements
hereto on behalf of Guarantors and entities that may become Guarantors) and
executing any instrument that JPM may deem necessary or advisable to accomplish
the purposes hereof, which appointment is irrevocable and coupled with an
interest. JPM shall have the right, upon the occurrence and during the
continuance of any Trigger Event, with full power of substitution either in
JPM's name or in the name of such Pledgor, (a) to receive, endorse, assign or
deliver any and all notes, acceptances, checks, drafts, money orders or other
evidences of payment relating to the Collateral or any part thereof, (b) to
demand, collect, receive payment of, give receipt for and give discharges and
releases of all or any of the Collateral; (c) to ask for, demand, ▇▇▇ for,
collect, receive and give acquittance for any and all moneys due or to become
due under and by virtue of any Collateral; (d) to sign the name of any Pledgor
on any invoice or ▇▇▇▇ of lading relating to any of the Collateral; (e) to send
verifications of Accounts to any Account Debtor; (f) to commence and prosecute
any and all suits, actions or proceedings at law or in equity in any court of
competent jurisdiction to collect or otherwise realize on all or any of the
Collateral or to enforce any rights in respect of any Collateral; (g) to settle,
compromise, compound, adjust or defend any actions, suits or proceedings
relating to all or any of the Collateral; (h) to notify, or to require any
Pledgor to notify, Account Debtors to make payment directly to JPM; and (i) to
use, sell, assign, transfer, pledge, make any agreement with respect to or
otherwise deal with all or any of the Collateral, and to do all other acts and
things necessary to carry out the purposes of this Agreement, as fully and
completely as though JPM were the absolute owner of the Collateral for all
purposes; provided, that nothing herein contained shall be construed as
requiring or obligating JPM to make any commitment or to make any inquiry as to
the nature or sufficiency of any payment received by JPM, or to present or file
any claim or notice, or to take any action with respect to the Collateral or any
part thereof or the moneys due or to become due in respect thereof or any
property covered thereby. JPM shall be accountable only for amounts actually
received as a result of the exercise of the powers granted to them herein, and
neither they nor their officers, directors, employees or agents shall be
responsible to any Pledgor for any act or failure to act hereunder, except for
their own gross negligence or willful misconduct.
Section 7.08. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD REQUIRE THE APPLICATION OF LAWS
OF ANOTHER JURISDICTION
Section 7.09. Waivers; Amendment. (a) No failure or delay by JPM in
exercising any right, power or remedy hereunder or under any Guaranty or the
Merger Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or remedy, or any abandonment or
discontinuance of steps to enforce such a right, power or remedy, preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. The rights, powers and remedies of JPM hereunder and under the other
each Guaranty and the Merger Agreement are cumulative and are not exclusive of
any rights, powers or remedies that they would otherwise have. No waiver of any
provision of this Agreement or
29
consent to any departure by any Guarantor therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section
7.09, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the generality of
the foregoing, the payment or satisfaction of any Underlying Liability shall not
be construed as a waiver of any default or event of default, regardless of
whether JPM may have had notice or knowledge of such default or event of default
at the time. No notice or demand on any Guarantor in any case shall entitle any
Guarantor to any other or further notice or demand in similar or other
circumstances. Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by JPM and the Pledgor with respect to which such waiver, amendment
or modification is to apply.
Section 7.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.10.
Section 7.11. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
Section 7.12. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract, and shall become
effective as provided in Section 7.04 hereof. Delivery of an executed
counterpart to this Agreement by facsimile transmission shall be as effective as
delivery of a manually signed original.
Section 7.13. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
Section 7.14. Jurisdiction; Consent to Service of Process. (a) Each
party to this Agreement hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or
30
proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that JPM may
otherwise have to bring any action or proceeding relating to this Agreement
against any Pledgor, or its properties, in the courts of any jurisdiction.
(b) Each party to this Agreement hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any New York State or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
Section 7.15. Termination or Release. (a) This Agreement, the
guarantees made herein, the pledges made herein, the Security Interest and all
other security interests granted hereby shall terminate when all the Obligations
(other than contingent or unliquidated obligations or liabilities with respect
to which no claim has been asserted) have been paid in full in cash or
immediately available funds and JPM has no further actual or contingent
liabilities under any Guaranty or to a creditor of any Covered BSC Entity in
respect of any Underlying Liability.
(b) A Subsidiary Party shall automatically be released from its
obligations hereunder and the security interests in the Collateral of such
Subsidiary Party shall be automatically released upon the consummation of any
transaction permitted by the Merger Agreement and each Guaranty, as a result of
which such Subsidiary Party ceases to be a Subsidiary of BSC or otherwise ceases
to be a Guarantor; provided that JPM shall have consented to such transaction
and the terms of such consent did not provide otherwise.
(c) Upon any sale or other transfer by any Pledgor of any Collateral
that is permitted under the Merger Agreement and each Guaranty to any person
that is not a Pledgor, or upon the effectiveness of any written consent to the
release of the security interest granted hereby in any Collateral by JPM, the
security interest in such Collateral shall be automatically released.
(d) In connection with any termination or release pursuant to
paragraph (a), (b) or (c) of this Section 7.15, JPM shall execute and deliver to
any Pledgor, at such Pledgor's expense, all documents that such Pledgor shall
reasonably request to evidence such termination or release; provided, that JPM
shall not be required to take any action under this Section 7.15(d) unless such
Pledgor shall have delivered to JPM together with such request, which may be
incorporated into such request, (i) a reasonably detailed description of the
Collateral, which in any event shall be sufficient to effect the appropriate
termination or release without affecting any other Collateral, and (ii) a
certificate of a Responsible Officer of such Pledgor certifying that the
transaction giving rise to such termination or release is permitted by the
Merger Agreement and
31
each Guaranty Agreement. Any execution and delivery of documents pursuant to
this Section 7.15 shall be without recourse to or warranty by JPM.
(e) This Agreement, the guarantees made herein, the pledges made
herein, the Security Interest and all other security interests granted hereby
shall terminate upon the occurrence of the Closing under the Merger Agreement.
Section 7.16. Additional Subsidiaries. Upon execution and delivery
by JPM and any Subsidiary of an instrument in the form of Exhibit A hereto, such
Subsidiary shall become a Subsidiary Party hereunder with the same force and
effect as if originally named as a Subsidiary Party herein. The execution and
delivery of any such instrument shall not require the consent of any other party
to this Agreement. The rights and obligations of each party to this Agreement
shall remain in full force and effect notwithstanding the addition of any new
party to this Agreement. BSC and the other Guarantors shall cause any Subsidiary
of BSC created or acquired by BSC or any of its Subsidiaries hereafter, and any
existing Subsidiary not signatory hereto, in each case that JPM shall reasonably
request (other than Regulated Entities), to become a Guarantor and Pledgor
hereunder, and shall cause such Subsidiaries to execute all documents and take
all such actions reasonably requested by JPM to achieve such purpose; provided,
that any such Subsidiary shall, without further act or deed, be conclusively
deemed to be a Guarantor and Pledgor hereunder upon such request by JPM.
Section 7.17. Right of Set-off. JPM is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set-off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by JPM to or
for the credit or the account of any party to this Agreement against any of and
all the obligations of such party now or hereafter existing under this Agreement
owed to JPM, irrespective of whether or not JPM shall have made any demand under
this Agreement and although such obligations may be unmatured. The rights of JPM
under this Section 7.17 are in addition to other rights and remedies (including
other rights of set-off) that JPM may have.
Section 7.18. Guarantor Operations. Anything to the contrary herein
notwithstanding, as long as a Trigger Event has not occurred, or if occurred, is
not continuing, Guarantors shall have the right to use any and all Collateral to
operate their businesses in accordance with the Merger Agreement. Without
limitation of the foregoing, Guarantors shall be entitled to rehypothecate,
lend, sell or pledge the Collateral in the ordinary course of business, free and
clear of any lien or security interest created under this agreement, such lien
or security interest to attach to the proceeds received in respect thereof.
Section 7.19. Right of Release. Anything to the contrary herein
notwithstanding, JPM shall have a unilateral right to release any Subsidiary
Party from all or any portion of its obligations as Guarantor and/or Pledgor
hereunder, and to release all or any portion of the Collateral from the Security
Interest or other lien of JPM, in each case at any time and in its sole
discretion, by delivering to BSC an amended and restated Schedule 7.19
describing such released Collateral.
[Signature Pages Follow]
32
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
THE BEAR ▇▇▇▇▇▇▇ COMPANIES INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
JPMORGAN CHASE & CO.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
Chairman and Chief Executive Officer
EXHIBIT A
Supplement to Guarantee and
Collateral Agreement
SUPPLEMENT NO. ______ dated as of [____] (this "Supplement"), to the
GUARANTEE AND COLLATERAL AGREEMENT, dated and effective as of March 24, 2008
(the "Guarantee and Collateral Agreement"), among JPMORGAN CHASE & CO., a
Delaware corporation ("JPM"), THE BEAR ▇▇▇▇▇▇▇ COMPANIES INC., a Delaware
corporation ("BSC"), and each Subsidiary BSC signatory thereto.
Capitalized terms used herein and not otherwise defined shall have
the meanings assigned to such terms in the Guarantee and Collateral Agreement.
Accordingly, JPM and the New Subsidiary agree as follows:
SECTION 1. In accordance with Section 7.16 of the Guarantee and
Collateral Agreement, the New Subsidiary by its signature below becomes a
Subsidiary Party, a Guarantor and a Pledgor under the Guarantee and Collateral
Agreement with the same force and effect as if originally named therein as a
Subsidiary Party, a Guarantor and a Pledgor, and the New Subsidiary hereby (a)
agrees to all the terms and provisions of the Guarantee and Collateral Agreement
applicable to it as a Subsidiary Party, a Guarantor and a Pledgor thereunder,
and (b) represents and warrants that the representations and warranties made by
it as a Guarantor and a Pledgor thereunder are true and correct, in all material
respects, on and as of the date hereof. In furtherance of the foregoing, the New
Subsidiary, as security for the payment and performance in full of the
Obligations (as defined in the Guarantee and Collateral Agreement), does hereby
create and grant to JPM and its successors and permitted assigns a security
interest in and Lien on all the New Subsidiary's right, title and interest in
and to the Collateral (as defined in the Guarantee and Collateral Agreement) of
the New Subsidiary. Each reference to a "Subsidiary Party" or a "Guarantor" a
"Pledgor" in the Guarantee and Collateral Agreement shall be deemed to include
the New Subsidiary. The Guarantee and Collateral Agreement is hereby
incorporated herein by reference.
SECTION 2. The New Subsidiary represents and warrants to JPM that
this Supplement has been duly authorized, executed and delivered by it and
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms, subject to (i) the effects of bankruptcy, insolvency,
moratorium, reorganization, fraudulent conveyance or other similar laws
affecting creditors' rights generally, (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and (iii) implied covenants of good faith and fair dealing.
SECTION 3. This Supplement may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one contract. This Supplement shall become
effective when (a) JPM shall have received a counterpart of this Supplement that
bears the signature of the New Subsidiary, and (b) JPM has executed a
counterpart hereof.
SECTION 4. The New Subsidiary hereby represents and warrants that
(a) set forth on Schedule I attached hereto is a true and correct schedule of
the location of any and all Collateral of the New Subsidiary, (b) set forth on
Schedule II attached hereto is a true and correct schedule of all the Pledged
Securities of the New Subsidiary, and (c) set forth under its signature hereto,
is the true and correct legal name of the New Subsidiary, its jurisdiction of
formation and the location of its chief executive office.
SECTION 5. Except as expressly supplemented hereby, the Guarantee
and Collateral Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES THEREOF THAT WOULD REQUIRE THE APPLICATION OF LAWS OF ANOTHER
JURISDICTION.
SECTION 7. In the event any one or more of the provisions contained
in this Supplement should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein and in the Guarantee and Collateral Agreement shall not in any
way be affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 8. All communications and notices hereunder shall be in
writing and given as provided in Section 7.01 of the Guarantee and Collateral
Agreement.
SECTION 9. The New Subsidiary agrees to reimburse JPM for its
reasonable out-of-pocket expenses in connection with this Supplement, including
the reasonable fees, disbursements and other charges of counsel for JPM.
IN WITNESS WHEREOF, the New Subsidiary and JPM have duly executed
this Supplement to the Guarantee and Collateral Agreement as of the day and year
first above written.
[NAME OF NEW SUBSIDIARY]
By: ____________________________________
Name:
Title:
Legal Name:
Jurisdiction of Formation:
Location of Chief Executive Office:
JPMORGAN CHASE & CO.
By: ____________________________________
Name:
Title:
Schedule I
to Supplement No. ____ to the
Guarantee and
Collateral Agreement
LOCATION OF COLLATERAL
Description Location
----------- --------
Schedule II to
Supplement No. _____
to the Guarantee and
Collateral Agreement
Pledged Securities of the New Subsidiary
EQUITY INTERESTS
----------------
Number of Issuer Number and Class of Percentage of
Certificate Registered Owner Equity Interest Equity Interests
---------------- ---------------- ------------------- ----------------
Schedule I to Guaranty and Collateral Agreement
Subsidiary Parties
The Bear ▇▇▇▇▇▇▇ Companies Inc.
Bear ▇▇▇▇▇▇▇ Global Lending Limited
Bear ▇▇▇▇▇▇▇ Capital Markets Inc.
Bear ▇▇▇▇▇▇▇ Credit Products Inc.
Bear ▇▇▇▇▇▇▇ Forex Inc.
EMC Mortgage Corporation
Bear ▇▇▇▇▇▇▇ Commercial Mortgage, Inc.
Bear Energy LP
Bear ▇▇▇▇▇▇▇ Investment Products Inc.
Bear ▇▇▇▇▇▇▇ Singapore Holdings Pte. Ltd.
Delta Power Corp.
Bear ▇▇▇▇▇▇▇ Asset Management Inc.
Plymouth Park Tax Services LLC
Bear ▇▇▇▇▇▇▇ Mortgage Capital Corporation
Madison Tax Capital, LLC
Bear ▇▇▇▇▇▇▇ Funding Inc.
BE Allegheny LLC
BE CA LLC
BE Red Oak LLC
BE Louisiana LLC
BE Alabama LLC
BE KJ LLC
Madison Tax Capital LLC
Mohawk River Funding I LLC
Cedar Brakes I, LLC
Cedar Brakes II, LLC
BSTJ Inc.
Bear Hunter Holdings LLC
Bear, ▇▇▇▇▇▇▇ International Holdings Inc.
Bear ▇▇▇▇▇▇▇ Irish Holdings Inc.
Okwari I, LLC
Texas Investment Holdings Inc.
▇▇▇▇▇▇ Energy Holdings LLC
Delta Power Company, LLC
Texas Power GP LLC
BE Investment Holding Inc.
BE Alabama Holding LLC
BE Allegheny Holding LLC
BE CA Holding LLC
BE Ironwood Holding LLC
BE KJ Holding LLC
BE Louisiana Holding LLC
BE Red Oak Holding LLC
Bear ▇▇▇▇▇▇▇ UK Holdings Limited
Bear ▇▇▇▇▇▇▇ Holdings Limited
Bear, ▇▇▇▇▇▇▇ Realty Investors, Inc.
Schedule IAto Guaranty and Collateral Agreement
Regulated Entitites
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
Bear, ▇▇▇▇▇▇▇ Securities Corp.
Bear, ▇▇▇▇▇▇▇ International Limited
Bear ▇▇▇▇▇▇▇ Bank plc
Custodial Trust Company
Bear ▇▇▇▇▇▇▇ Singapore Pte. Ltd.
Bear ▇▇▇▇▇▇▇ Asia Limited
Bear ▇▇▇▇▇▇▇ Asset Management Ltd.
Bear ▇▇▇▇▇▇▇ International Trading Limited
Bear ▇▇▇▇▇▇▇ Hong Kong Ltd.
BSMA Limited
Bear ▇▇▇▇▇▇ Specialists LLC
Bear ▇▇▇▇▇▇▇ (Japan) Ltd.