AMENDED
AND RESTATED GUARANTY AGREEMENT
THIS
AMENDED AND RESTATED GUARANTY AGREEMENT (this “
Guaranty
”) is made effective as of the 16th day of March, 2008,
by JPMORGAN CHASE & CO. (the “ Guarantor
”), a Delaware corporation headquartered in New York,
New York.
WHEREAS,
the Guarantor is a party to an Agreement and Plan of Merger
with The Bear Stearns Companies Inc. (“ BSC
”), dated as of March 16, 2008 (as amended from time to
time, the “ Acquisition
Agreement ”);
WHEREAS,
as a condition precedent to entering into the Acquisition
Agreement, BSC requested that the Guarantor enter into a
guaranty;
WHEREAS,
the Guarantor entered into a Guaranty Agreement dated March
16, 2008 (the “ Original
Guaranty ”) and is entering into this Amended and
Restated Guaranty Agreement at the request of the Covered BSC
Entities (as defined below) to replace and make certain
clarifications and additions to the Original Guaranty (without
in any way limiting the scope of any guaranties provided under
the Original Guaranty);
NOW,
THEREFORE, in consideration of the premises and other good and
valuable consideration, the sufficiency of which is hereby
acknowledged, the Guarantor agrees as follows:
1.
The Guarantor hereby unconditionally guaranties the due and
punctual payment of all Covered Liabilities of the Covered BSC
Entities on the terms set forth herein.
2.
As used in this Guaranty:
(a)
The term “ Covered BSC
Entities ” means BSC and the affiliates of BSC
listed on Schedule 1 hereto. For the avoidance of doubt,
Covered BSC Entities does not include (x) any successor,
assign or transferee of BSC or the entities listed on Schedule
1, which successor, assign or transferee is not an affiliate
of the Guarantor, or (y) any subsidiary, affiliate, fund,
special purpose entity, variable interest entity, investment
vehicle or other entity owned (directly or indirectly),
affiliated with or organized, promoted, sponsored, managed or
otherwise administered in any manner by BSC or any BSC
affiliate listed on Schedule 1 or in which BSC or any such BSC
affiliate has or has had a legal or beneficial interest or to
which BSC or any such affiliate has or has had economic
exposure, in the case of each of the foregoing clauses (x) and
(y) unless such entity is listed on Schedule 1.
(b)
The term “ Covered
Liabilities ” means:
(1)
all liabilities and obligations under revolving credit
facilities, letters of credit and letter of credit facilities,
term loan facilities, lines of credit (including without
limitation in connection with Trading Contract activities) or
uncommitted loan facilities, in each case whether secured or
unsecured (whether absolute or contingent, liquidated or
unliquidated, intraday/daylight, overnight, short or long
term) of the Covered BSC Entities in respect of extensions of
credit to a Covered BSC Entity made prior to the date hereof,
made during the Guaranty Period, made at any time pursuant to
a commitment in effect as of the date hereof or made at any
time pursuant to a commitment entered into during the Guaranty
Period (in each case without giving effect to any amendment of
such commitment entered into after the Guaranty
Period);
(2)
all liabilities and obligations (whether absolute or
contingent, liquidated or unliquidated, intraday/daylight,
overnight, short or long term) of the Covered BSC Entities
that arise from transactions that have been entered into prior
to the date hereof and all liabilities and obligations
(whether absolute or contingent, liquidated or unliquidated,
intraday/daylight, overnight, short or long term) of the
Covered BSC entities that arise from transactions that are
entered into during the Guaranty Period, in each case to the
extent (and only to the extent) that such liabilities or
obligations arise under the terms of: prime brokerage
agreements and accounts, securities lending agreements,
custodial and carrying agreements, securities accounts and
securities contracts (including but not limited to contracts
and related accounts for the purchase, sale, loan or borrowing
of a security or loan or a group or index of securities or
loans, or options with respect thereto or interests therein),
commodity contracts (including but not limited to contracts
for storage, capacity, transmission, freight, transportation
and other ancillary services and products), forward contracts,
futures contracts, tolling agreements, energy management
agreements, repurchase or reverse repurchase agreements, swap
agreements, foreign exchange and currency contracts, options
or other derivatives (whether or not such derivative contracts
are financially or physically settled), settlement or clearing
agreements and arrangements (including but not limited to
clearance or settlement for or by the Covered BSC Entities and
membership or participation in any settlement or clearing
system, organization or structure), margin loan agreements,
other contracts or transactions similar to any of the
foregoing, any customary brokerage commission with respect to
the foregoing, any contractual obligation to provide
collateral or margin in respect of any of the foregoing or any
obligation under a guaranty of any of the foregoing (all of
the foregoing in this subsection 2(b)(2) collectively, whether
exchange-traded or over-the-counter
