Exhibit 4.21
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COMMON SECURITIES GUARANTEE AGREEMENT
GBL Trust II
DATED AS OF _________, 20__
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND INTERPRETATIONS ................................ 2
SECTION 1.1 Definitions and Interpretation ........................... 2
ARTICLE II GUARANTEE 4
SECTION 2.1 Guarantee ................................................ 4
SECTION 2.2 Waiver of Notice and Demand .............................. 4
SECTION 2.3 Obligations Not Affected ................................. 4
SECTION 2.4 Rights of Holders ........................................ 5
SECTION 2.5 Guarantee of Payment ..................................... 6
SECTION 2.6 Subrogation .............................................. 6
SECTION 2.7 Independent Obligations .................................. 6
ARTICLE III SUBORDINATION .................................................. 6
ARTICLE IV TERMINATION .................................................... 7
ARTICLE V MISCELLANEOUS .................................................. 7
SECTION 5.1 Successors and Assigns ................................... 7
SECTION 5.2 Amendments ............................................... 7
SECTION 5.3 Notices .................................................. 7
SECTION 5.4 Benefit .................................................. 8
SECTION 5.5 Governing Law ............................................ 8
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COMMON SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Common Securities Guarantee"), dated as of
_______, 20__ is executed and delivered by Gabelli Asset Management Inc., a
New
York corporation (the "Guarantor") for the benefit of the Holders (as defined
herein) from time to time of the Common Securities (as defined herein) of
GBL Trust II, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of _______, 20__ among the trustees of the Issuer named
therein, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing on the date hereof _______ preferred securities, liquidation amount
$____ per preferred security, having an aggregate liquidation amount of $_______
designated the ____% Preferred Securities (the "Preferred Securities");
WHEREAS, pursuant to the Declaration, the Issuer is issuing on the date
hereof _______ common securities, liquidation amount $____ per common security,
having an aggregate liquidation amount of $_______ designated the ____% Common
Securities (the "Common Securities");
WHEREAS, as incentive for the Holders to purchase the Common Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth in this Common Securities Guarantee, to pay to the Holders the
Guarantee Payments (as defined herein) and to make certain other payments on the
terms and conditions set forth herein; and
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Preferred Securities Guarantee") in substantially identical
terms to this Common Securities Guarantee for the benefit of the holders of the
Preferred Securities, except that if an event of default under the Indenture (as
defined herein), has occurred and is continuing, the rights of Holders of the
Common Securities to receive Guarantee Payments under this Common Securities
Guarantee are subordinated to the rights of holders to receive Guarantee
Payments under the Preferred Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder, which
purchase the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor
executes and delivers this Common Securities Guarantee for the benefit of the
Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
SECTION 1.1 DEFINITIONS AND INTERPRETATION
In this Common Securities Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Common Securities Guarantee but not
defined in the preamble above have the respective meanings assigned to
them in this Section 1.1;
(b) a term defined anywhere in this Common Securities Guarantee has the
same meaning throughout;
(c) all references to "the Common Securities Guarantee" or "this Common
Securities Guarantee" are to this Common Securities Guarantee as
modified, supplemented or amended from time to time;
(d) all references in this Common Securities Guarantee to Articles and
Sections are to Articles and Sections of this Common Securities
Guarantee, unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Common Securities Guarantee, unless otherwise defined in
this Common Securities Guarantee or unless the context otherwise
requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given in the Indenture.
"Debenture Issuer" means the Guarantor in its capacity as the issuer of the
Debentures.
"Debentures" means the series of debentures of the Guarantor designated
[ ] held by the Property Trustee (as defined in the Declaration) of the
Issuer.
"Distribution" has the same meaning as given in the Declaration.
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"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Common Securities Guarantee.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Common Securities, to the extent not paid or
made by the Issuer:
(i) any accrued and unpaid Distributions (as defined in the
Declaration) that are required to be paid on such Common Securities to the
extent the Issuer shall have funds available therefor, and
(ii) upon a voluntary or involuntary dissolution, winding-up or
termination of the Issuer (other than in connection with the distribution
of Debentures to the Holders in exchange for Common Securities as provided
in the Declaration), the lesser of (a) the aggregate of the liquidation
amount of such Common Securities plus all accrued and unpaid Distributions
on such Common Securities to and including the date of payment, to the
extent the Issuer shall have funds available therefor, and (b) the amount
of assets of the Issuer remaining available for distribution to Holders in
liquidation of the Issuer (amounts in clause (a) or (b), the "Liquidation
Distribution").
If an event of default under the Indenture has occurred and is
continuing, the rights of Holders of the Common Securities to receive
payments under this
Common Securities Guarantee Agreement are subordinated
to the rights of holders of Preferred Securities to receive Guarantee
Payments under the Preferred Securities Guarantee Agreement.
"Holder" shall mean any holder, as registered on the books and records of
the Issuer, of any Common Securities.
"Indenture" has the same meaning as given in the Declaration.
"Majority in liquidation amount of the Common Securities" means, except as
provided by the Trust Indenture Act, a vote by Holders of Common Securities,
voting separately as a class, of more than 50% of the aggregate liquidation
amount (including the stated amount that would be paid on liquidation or
otherwise) of all Common Securities.
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ARTICLE II
GUARANTEE
SECTION 2.1 GUARANTEE
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (without duplication of amounts theretofore paid
by the Issuer), as and when due, regardless of any defense, right of set-off or
counter claim that the Issuer may have or assert. The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders.
If an event of default under the Indenture has occurred and is continuing,
the rights of Holders of the Common Securities to receive Guarantee Payments
under this Common Securities Guarantee are subordinated to the rights of holders
to receive Guarantee Payments under the Preferred Securities Guarantee.
SECTION 2.2 WAIVER OF NOTICE AND DEMAND
The Guarantor hereby waives notice of acceptance of this Common Securities
Guarantee and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Issuer
or any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
SECTION 2.3 OBLIGATIONS NOT AFFECTED
The obligations, covenants, agreements and duties of the Guarantor under
this Common Securities Guarantee shall in no way be affected or impaired by
reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Common Securities to
be per formed or observed by the Issuer;
(b) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Common
Securities, or
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any action on the part of the Issuer granting indulgence or extension of
any kind;
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Issuer
or any of the assets of the Issuer;
(d) any invalidity of, or defect or deficiency in, the Common
Securities;
(e) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(f) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the
intent of this Section 2.3 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
the consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 2.4 RIGHTS OF HOLDERS
(a) The Holders of a Majority in liquidation amount of Common Securities
may by vote, on behalf of the Holders of all of the Common Securities, waive any
past Event of Default and its consequences. Upon such waiver, any such Event of
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Common Securities
Guarantee, but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
(b) Any Holder may institute a legal proceeding directly against the
Guarantor to enforce its rights under this Common Securities Guarantee, without
first instituting a legal proceeding against the Issuer or any other Person.
Notwithstanding the foregoing, if the Guarantor has failed to make a Guarantee
Payment, a Holder may directly institute a proceeding against the Guarantor for
enforcement of the Common Securities Guarantee for such payment. The Guarantor
waives any right or remedy to require that any action on this Common Securities
Guarantee be brought first against the Issuer or any other person or entity
before proceeding directly against the Guarantor.
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SECTION 2.5 GUARANTEE OF PAYMENT
This Common Securities Guarantee creates a guarantee of payment and not of
collection.
SECTION 2.6 SUBROGATION
The Guarantor shall be subrogated to all rights, if any, of the Holders
against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this Common Securities Guarantee; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any right that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Common Securities Guarantee, if, at the time of
any such payment, any amounts are due and unpaid under this Common Securities
Guarantee. If any amount shall be paid to the Guarantor in violation of the
preceding sentence, the Guarantor agrees to hold such amount in trust for the
Holders and to pay over such amount to the Holders.
SECTION 2.7 INDEPENDENT OBLIGATIONS
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer with respect to the Common Securities, and that
the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Common Securities Guarantee
notwithstanding the occurrence of any event referred to in subsections (a)
through (f), inclusive, of Section 2.3 hereof.
ARTICLE III
SUBORDINATION
This Common Securities Guarantee will constitute an unsecured obligation of
the Guarantor and will rank (i) subordinate and junior in right of payment to
all other liabilities of the Guarantor, except those obligations or liabilities
ranking equal or subordinate to the Common Securities Guarantee by their terms,
(ii) equally with any other securities, liabilities or obligations that may have
equal ranking by their terms; and (iii) senior to the Guarantor's Common Stock,
$0.001 par value.
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ARTICLE IV
TERMINATION
This Common Securities Guarantee shall terminate upon (i) the distribution
of the Debentures to all Holders or (ii) full payment of the amounts payable in
accordance with the Declaration upon liquidation of the Issuer. Notwithstanding
the foregoing, this Common Securities Guarantee will continue to be effective or
will be reinstated, as the case may be, if at any time any Holder must restore
payment of any sums paid under the Common Securities or under this Common
Securities Guarantee.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 SUCCESSORS AND ASSIGNS
All guarantees and agreements contained in this Common Securities Guarantee
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Common
Securities then outstanding.
SECTION 5.2 AMENDMENTS
Except with respect to any changes that do not adversely affect the rights
of Holders (in which case no consent of Holders will be required), this Common
Securities Guarantee may only be amended with the prior approval of the Holders
of at least a Majority in liquidation amount of the outstanding Common
Securities. The provisions of Section 12.2 of the Declaration with respect to
meetings of Holders apply to the giving of such approval.
SECTION 5.3 NOTICES
All notices provided for in this Common Securities Guarantee shall be in
writing, duly signed by the party giving such notice, and shall be delivered by
registered or certified mail, as follows:
(a) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to
the Holders):
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Gabelli Asset Management Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
(b) If given to any Holder, at the address set forth on the books and
records of the Issuer.
All such notices shall be deemed to have been given when received in
person, or mailed by first class mail, postage prepaid except that if a notice
or other document is refused delivery or cannot be delivered because of a
changed address of which no notice was given, such notice or other document
shall be deemed to have been delivered on the date of such refusal or inability
to deliver.
SECTION 5.4 BENEFIT
This Common Securities Guarantee is solely for the benefit of the Holders
and is not separately transferable from the Common Securities.
SECTION 5.5 GOVERNING LAW
THIS COMMON SECURITIES GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO ITS
PRINCIPLES OF CONFLICTS OF LAWS.
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THIS COMMON SECURITIES GUARANTEE is executed as of the day and year first
above written.
GABELLI ASSET MANAGEMENT INC.,
as Guarantor
By:
---------------------------
Name:
Title:
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