EXHIBIT 10.8
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is entered into as of September 20, 2000, (this
Credit Agreement as it may be amended, supplemented or modified from time to
time being referred to herein as this "Agreement") among SurFin Ltd., an
international business company organized and existing under the laws of the
Bahamas ("Borrower"), the Designated Subsidiaries (as defined below), the Banks
(as defined below), Citicorp USA, Inc., as administrative agent for Banks (in
such capacity "Administrative Agent"), and Deutsche Bank AG New York Branch
and/or Cayman Islands Branch, as syndication agent.
SECTION 1
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DEFINITIONS
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1.1 Definitions.
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"Accepted Time Draft" means a draft presented under a Usance Letter of
Credit which has been accepted by the Issuing Bank of such Usance Letter of
Credit.
"Additional Commitment and Acceptance" means an Additional Commitment
and Acceptance in substantially the form of Exhibit L.
"Adjusted Exposure" means, with respect to any Bank, as at any date of
determination, the sum (without duplication) of (i) the aggregate principal
amount of all outstanding Loans made by such Bank (other than Loans made for the
purpose of reimbursing the applicable Issuing Bank for any amount drawn under
any Participated Letter of Credit but not yet so applied) plus (ii) such Bank's
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share based on its Percentage of the maximum aggregate amount which is or at any
time thereafter may become available for drawing under all Participated Letters
of Credit then outstanding plus (iii) such Bank's share based on its Percentage
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of the aggregate amount of all payments in respect of drawing under Participated
Letters of Credit honored by Issuing Banks and payments of Accepted Time Drafts
and not theretofore reimbursed by the Obligors (including any such
reimbursements out of the proceeds of Loans pursuant to Section 2.13(b)) plus
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(iv) the maximum aggregate amount which is or at any time thereafter may become
available for drawing under all Non-Participated Letters of Credit issued by
such Bank or its Designated Issuer then outstanding plus (v) the aggregate
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amount of all payments in respect of drawings under all Non-Participated Letters
of Credit honored by such Bank or its Designated Issuer and payments of Accepted
Time Drafts created under such Non-Participated Letters of Credit issued by such
Bank or its Designated Issuer and not theretofore reimbursed by the Obligors.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by, or is under common control with, such
Person.
"Applicable Margin" shall mean with respect to any day in relation to
any Eurodollar Loan, the percentages set forth below correlating to the Level
applicable to Long-term Debt on such day:
Applicable
Margin (in
Level basis points)
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Xxxxx 0 00.0
Xxxxx 0 00.0
Xxxxx 0 00.0
Level 4 100.00
The applicable Level shall be determined by the Administrative Agent
on the basis of timely information furnished to it by Borrower, Xxxxxx, Moody's
or S&P with respect to the rating on Long-term Debt; any change in the Level
shall be effective on the earlier of the date on which such rating change is
publicly announced or on the date written confirmation of a change in the rating
on Long-term Debt is sent to Borrower or Xxxxxx, by Moody's or S&P.
"Approved Bank Affiliate" means a Person that is a subsidiary of a
Bank or of a Person of which a Bank is a subsidiary, and which is either engaged
primarily in the business of lending or, if not so engaged, which has been
approved by Borrower and Administrative Agent; provided that Borrower's approval
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shall not be unreasonably withheld.
"Arranger" means Xxxxxxx Xxxxx Barney Inc.
"Assignment and Acceptance" means an Assignment and Acceptance
Agreement substantially in the form of Exhibit J.
"Availability Period" means the period commencing on the Effective
Date and ending on the Termination Date.
"Bank" means each financial institution listed on the signature pages
hereof, each Person which becomes a Bank pursuant to Section 3.8, 11.11 or 11.21
and their respective successors, provided that for purposes of any determination
made with respect to CUSA under Sections 3.1, 3.2, 3.3, or 4.2, "Bank" shall be
deemed to include Citibank.
"Borrowing Date" means a date on which funds are advanced to an
Obligor by one or more Banks pursuant to a Loan Request.
"Business Day" means a day other than a Saturday or Sunday on which
banks are open for business in New York, New York.
"Citibank" means Citibank, N.A.
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"Commercial Letter of Credit" means any letter of credit issued for
the purpose of providing the primary payment mechanism, through the presentation
of documentation such as drafts and bills of lading, in connection with the
purchase of materials, goods or services by Borrower or any of its Subsidiaries
in the ordinary course of business of Borrower or such Subsidiary.
"Commitment" of each Bank means the dollar amount set forth opposite
such Bank's name on Schedule 1 hereto as such amount may be reduced or changed
pursuant to Sections 3.5, 3.6 and 11.11 and shall include the commitment of any
financial institution that becomes a Bank pursuant to Section 11.21. "Total
Commitment" means the aggregate amount of the Commitments.
"CUSA" means Citicorp USA, Inc. in its capacity as a Bank.
"Designated Issuer" means a financial institution which has been
designated by a Bank as such Bank's "Designated Issuer" for purposes of issuing
Letters of Credit and (i) in the case of a Bank which is a party to this
Agreement on the Effective Date, which has executed this Agreement, and (ii) in
each other case shall have executed this Agreement and shall have been consented
to by Borrower, which consent shall not be unreasonably withheld.
"Designated Subsidiary" means each of White Holding and White Holding
Mexico, each of which is a wholly-owned Subsidiary of Borrower, and "Designated
Subsidiaries" means all such entities collectively.
"Dish Placement" means Dish Placement Services, Ltd., an international
business company organized and existing under the laws of the Bahamas.
"Dollars", "dollars" and "$" each mean lawful money of the United
States.
"Effective Date" means the date this Agreement shall have been
executed and delivered by the parties hereto and the conditions precedent set
forth in Section 5.1 shall have been satisfied.
"Eligible Assignee" means (i) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined capital
and surplus of at least $100,000,000; (ii) a commercial bank organized under the
laws of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having a combined capital and surplus of at least $100,000,000,
provided that such bank is acting through a branch or agency located in the
country in which it is organized or another country which is also a member of
the OECD; or (iii) any Person engaged in the business of lending.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
in effect from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with Borrower or any Subsidiary of Borrower
within the meaning of Section 414(b), 414(c) or 414(m) of Internal Revenue Code
of 1986, as amended.
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"Eurodollar Banking Day" means a day on which banks are open for
business in New York, New York and the applicable offshore dollar interbank
market and are dealing in U.S. Dollar deposits.
"Eurodollar Loan" means a Loan at the rate of interest calculated
pursuant to Section 2.6.
"Eurodollar Rate" means for each Interest Period of a Eurodollar Loan
the arithmetic mean of the rates of interest rounded to the nearest 1/100 of one
percent as notified to the Administrative Agent by the Reference Banks at which
U.S. Dollar deposits for such Interest Period and in an amount comparable to the
Principal Amount of such Eurodollar Loan would be offered by such Reference
Banks to major banks in the offshore dollar interbank market upon request of
such banks at approximately 11:00 a.m. London time two (2) Eurodollar Banking
Days prior to the first day of such Interest Period.
"Event of Default" means any event specified in Section 9.1.
"Existing Credit Agreement" means the Credit Agreement dated as of
June 3, 1999, as amended, among Borrower, Dish Placement, White Holding, the
banks party thereto, and Citicorp USA, Inc. as agent for such banks.
"Facility Fee" has the meaning assigned to such term in Section 2.10.
"Federal Funds Rate" means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Board (including any such
successor, "H.15(519)") for such day opposite the caption "Federal Funds
(Effective)." If on any relevant day such rate is not yet published in
H.15(519), the rate for such day will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m. Quotations for U.S.
Government Securities, or any successor publication, published by the Federal
Reserve Bank of New York (including any such successor, the "Composite 3:30 p.m.
Quotation") for such day under the caption "Federal Funds Effective Rate." If
on any relevant day the appropriate rate for such previous day is not yet
published in either H.15(519) or the Composite 3:30 p.m. Quotations, the rate
for such day will be the arithmetic mean of the rates for the last transaction
in overnight Federal funds arranged prior to 9:00 a.m. (New York time) on that
day by each of three leading brokers of Federal funds transactions in New York
City selected by Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System, or any successor thereto.
"GAAP" means generally accepted accounting principles set forth from
time to time in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the accounting
profession), or in such other statements by such other entity as may be in
general use by significant segments of the U.S. accounting profession, which are
applicable to the circumstances as of the date of determination.
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"Good Faith" has the meaning assigned to such term in Section 1-201 of
the New York Uniform Commercial Code.
"Guarantor" means each of Xxxxxx, Xxxxxxx Investments LLC and any
"Successor Guarantor" (as defined in the Guaranties), and "Guarantors" means
such entities collectively.
"Guarantor Notice Agent" means Finser Corporation, as notice agent
under the Guaranty of Xxxxxxx Investments LLC.
"Guaranty" means any Guaranty in the form of Exhibit D or Exhibit E hereto,
as the case may be, dated as of the date hereof, executed and delivered by a
Guarantor, as it may be amended from time to time, and "Guaranties" means,
collectively, all such Guaranties.
"Hedging Obligations", as applied to any Person, means any and all
indebtedness, liabilities and other monetary obligations of such Person under
any interest rate swap, "cap", "collar" or other hedging agreements.
"Xxxxxx" means Xxxxxx Electronics Corporation, a Delaware corporation.
"Xxxxxx Credit Agreement" means the Amended and Restated Revolving
Credit Agreement (Multi-Year Facility) dated as of November 24, 1999, among
Xxxxxx Electronics Corporation, the banks named therein, Xxxxxx Guaranty Trust
Company of New York, as Syndication Agent, CUSA and The Chase Manhattan Bank, as
Documentation Agents, and Bank of America, N.A., as Administrative Agent, as
amended from time to time; provided that if such Revolving Credit Agreement is
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terminated and replaced by another credit agreement or credit agreements,
"Xxxxxx Credit Agreement" shall mean such replacement credit agreement (or if
there is more than one replacement credit agreement, the replacement credit
agreement having the greatest aggregate lenders' commitments), as amended from
time to time; provided further that if the Xxxxxx Credit Agreement is terminated
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and is not replaced by another credit agreement or credit agreements (including,
without limitation, in connection with the assumption of the Xxxxxx Guaranty
pursuant to Section 8(a) of the Xxxxxx Guaranty by a Successor Guarantor),
"Xxxxxx Credit Agreement" shall mean the Xxxxxx Credit Agreement as in effect
immediately prior to such termination and such Successor Guarantor shall be
deemed to be a "Borrower" thereunder.
"Xxxxxx Guaranty" means the Guaranty in the form of Exhibit D hereto,
dated as of the date hereof, executed and delivered by Xxxxxx as the Guarantor,
as it may be amended from time to time.
"Indebtedness", as applied to any Person, means (i) all indebtedness
for borrowed money, (ii) that portion of obligations with respect to capital
leases that is properly classified as a liability on a balance sheet in
conformity with GAAP, (iii) notes payable and drafts accepted representing
extensions of credit whether or not representing obligations for borrowed money,
(iv) any obligation owed for all or any part of the deferred purchase price of
property or services (excluding any such obligations incurred under ERISA),
which purchase price is (a) due more than six months from the date of incurrence
of the obligations in respect thereof or (b) evidenced by a note or similar
written instrument, (v) any direct or indirect liability, contingent or
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otherwise, of that Person (the "obligor") with respect to the obligor's
reimbursement obligations to any other Person who has provided assurance to the
obligee of obligor's primary obligation that such primary obligation will be
paid or discharged, and (vi) all indebtedness described in clauses (i) through
(v) above secured by any Lien on any property or asset owned or held by that
Person regardless of whether the indebtedness secured thereby shall have been
assumed by that Person or is nonrecourse to the credit of that Person.
"Interest Payment Date" means, with respect to each Eurodollar Loan,
the last day of each Interest Period; provided, however, that if any Interest
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Period exceeds three (3) months, "Interest Payment Date" shall mean the day that
is three months after the beginning of the relevant Interest Period, as well as
the last day of the relevant Interest Period; and, with respect to each
Reference Rate Loan, means the last day of each March, June, September and
December, and the Termination Date. If any day specified herein is not a
Business Day or, in the case of a Eurodollar Loan, a Eurodollar Banking Day,
then the relevant Interest Payment Date shall be the next succeeding Business
Day or Eurodollar Banking Day, as applicable, except as otherwise provided in
the definition of Interest Period.
"Interest Period" means with respect to each Eurodollar Loan, a period
of one (1), two (2), three (3) or six (6) months as selected by the applicable
Obligor by a Loan Request delivered to Administrative Agent in accordance with
Section 2.3, subject to the following:
(a) The first Interest Period for each Loan shall commence on the
date such Loan is disbursed and each succeeding Interest Period for such Loan
shall commence on the last day of the preceding Interest Period for such Loan;
(b) If the last day of an Interest Period falls on a day that is not
a Eurodollar Banking Day, the Interest Period involved shall be extended to the
next following Eurodollar Banking Day unless as a result thereof it would fall
into the next calendar month, in which case the end of the Eurodollar Interest
Period shall be the preceding Eurodollar Banking Day, and in either case the
next succeeding Eurodollar Interest Period shall be measured from the last day
of the Interest Period as so adjusted;
(c) If an Interest Period for a Eurodollar Loan commences on the last
Eurodollar Banking Day of a calendar month, it shall end on the last Eurodollar
Banking Day of a calendar month;
(d) No Interest Period shall end on a day later than the Termination
Date; and
(e) No more than (20) twenty Interest Periods shall be outstanding at
any one time.
"Issuing Bank" means, with respect to any Letter of Credit, the Bank
or Designated Issuer which agrees or is otherwise obligated to issue such Letter
of Credit, determined as provided in Section 2.11(b)(ii).
"L/C Request" means a notice substantially in the form of Exhibit K
hereto delivered by an Obligor to Administrative Agent or the Issuing Bank, as
the case may be, pursuant to Section 2.11(b)(i) with respect to the proposed
issuance of a Letter of Credit.
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"Lending Office" means with respect to any Bank as the context shall
require, the branch office of such Bank designated as the Lending Office of such
Bank in Exhibit C attached hereto and incorporated herein by reference; or any
other branch office or affiliate of such Bank hereafter selected and notified to
Borrower and Administrative Agent from time to time by such Bank; provided that
any Bank may from time to time by notice to Borrower and Administrative Agent
designate separate Lending Offices for its Eurodollar Loans and/or its Reference
Rate Loans; and in such case any reference to the Lending Office of such Bank
shall be deemed to refer to any or all of such offices, branches or affiliates
as the context may require.
"Letter Agreement" means that letter agreement among Arranger,
Administrative Agent and Borrower dated June 29, 2000 specifying Arranger's and
Administrative Agent's compensation for services hereunder as such letter
agreement may from time to time be amended, restated, reissued or otherwise
modified.
"Letter of Credit" or "Letters of Credit" means Participated Letters
of Credit and Non-Participated Letters of Credit, in each case which are either
Commercial Letters of Credit or Standby Letters of Credit.
"Letter of Credit Collateral" has the meaning assigned to such term in
Section 9.4(b).
"Letter of Credit Collateral Account" has the meaning assigned to such
term in Section 9.4(a).
"Letter of Credit Obligations" has the meaning assigned to such term
in Section 9.4(a).
"Letter of Credit Usage" means, as at any date of determination, the
sum (without duplication) of (i) the maximum aggregate amount which is or at any
time thereafter may become available for drawing under all Letters of Credit
then outstanding plus (ii) the aggregate amount of all outstanding Accepted Time
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Drafts plus (iii) the aggregate amount of all payments in respect of drawings
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under Letters of Credit honored by Issuing Banks and payments of Accepted Time
Drafts and not theretofore reimbursed by the Obligors (including any such
reimbursement out of the proceeds of Loans pursuant to Section 2.13(b)).
"Level" means Xxxxx 0, Xxxxx 0, Xxxxx 0 or Level 4, as applicable.
"Level 1" shall mean that Long-term Debt carries one or both of the
following ratings:
"A-" or higher by S& P
"A3" or higher by Moody's
"Level 2" shall mean that the criteria of Level 1 are not satisfied
and Long-term Debt carries one or both of the following ratings:
"BBB+" or higher by S&P
"Baa1" or higher by Moody's
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"Level 3" shall mean that the criteria of neither Xxxxx 0 xxx Xxxxx 0
are satisfied and Long-term Debt carries one or both of the following ratings:
"BBB" or higher by S&P
"Baa2" or higher by Moody's
"Level 4" shall mean that none of the criteria of Xxxxx 0, Xxxxx 0 or
Level 3 are satisfied.
"Lien" means any trust deed, mortgage, pledge, hypothecation,
assignment, security interest, lien (statutory or otherwise), charge or
encumbrance, or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, the
lien of an attachment, judgment or execution, any conditional sale or other
title retention agreement, any capitalized lease, the filing of, or agreement to
give, any financing statement under the Uniform Commercial Code or comparable
law of any jurisdiction, but excluding financing statements filed to give notice
of leases in the ordinary course of business, and, with respect to securities,
any purchase option, call or similar right of a third party with respect to such
securities).
"Loan" or "Loans" means the loans described in Section 2, any of which
may be at any time Reference Rate Loans or Eurodollar Loans.
"Loan Documents" means this Agreement, the Notes, the Letters of
Credit (and any applications for, or reimbursement agreements or other documents
or certificates executed by the Obligors in favor of an Issuing Bank relating
to, the Letters of Credit), the Accepted Time Drafts, the Guaranties and all
other agreements and documents executed in connection therewith.
"Loan Request" means a notice given by an Obligor pursuant to Section
2.3 hereof.
"LOC" means a company organized and operating in Mexico, the Caribbean
or a country located in Central America or South America which operates a
direct-to-home satellite television system in such country, and "LOC's" means
all such operating companies, collectively.
"Long-term Debt" shall mean senior, unsecured, non-credit-enhanced
public long-term debt securities of Xxxxxx or any Successor Guarantor.
"Majority Banks" means, upon the occurrence and during the continuance
of an Event of Default pursuant to subsection 9.1(a), those Banks whose
aggregate Adjusted Exposure constitutes at least sixty percent (60%) of the
Total Utilization of Commitments at such time; otherwise, those Banks whose
Commitments constitute at least sixty percent (60%) of the Total Commitment as
such Total Commitment may be adjusted from time to time pursuant to the terms of
this Agreement.
"Material Change" means any adverse change which could reasonably be
expected to materially impair the Obligors' ability to timely and fully perform
their obligations
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under this Agreement or the ability of Xxxxxx or Successor Guarantor to timely
and fully perform its obligations under the Xxxxxx Guaranty.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Non-Participated Letter of Credit" has the meaning assigned to such
term in subsection 2.11(a).
"Note" means any promissory note delivered pursuant to Section 2.7
(collectively, the "Notes").
"Obligor" means the Borrower and each of the Designated Subsidiaries.
"Participated Letter of Credit" has the meaning assigned to such term
in subsection 2.11(a).
"Percentage" means, with respect to each Bank, the percentage under
the heading "Percentage" set forth opposite such Bank's name on Schedule 1
hereto, as such Percentage may be adjusted in accordance with the provisions of
Section 3.6 or 11.11.
"Person" means any individual, firm, company, corporation, joint
venture, joint-stock company, limited liability company, trust, unincorporated
organization, governmental or state entity, or any association or partnership
(whether or not having separate legal personality) of two or more of the
foregoing.
"Plan" means any employee benefit pension plan which is subject to the
provisions of Title IV of ERISA and which is maintained for employees of
Borrower or any ERISA Affiliate.
"Principal Amount" means, when used with reference to any Loan, the
amount requested in the Loan Request relating thereto and made available to an
Obligor by the Banks hereunder.
"Principal Repayment Date" means, with respect to each Reference Rate
Loan, the Termination Date, and with respect to each Eurodollar Loan, the last
day of the Interest Period for such Loan.
"Reference Banks" means Citibank and Deutsche Bank AG New York Branch
and/or Cayman Islands Branch.
"Reference Rate" means, for any period, a fluctuating interest rate
per annum as shall be in effect from time to time which rate per annum shall at
all times be equal to the highest of:
(a) the rate of interest announced publicly by Citibank in New York,
New York, from time to time, as Citibank's base rate (which is a rate
set by Citibank based upon various factors including Citibank's costs
and desired return, general
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economic conditions and other factors, and is used as a reference
point for pricing some loans, which may be priced at, above, or below
such announced rate);
(b) the sum of (A) 1/2 of one percent per annum, plus (B) the rate
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obtained by dividing (x) the latest three-week moving average of
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secondary market morning offering rates in the United States for
three-month certificates of deposit of major United States money
market banks (such three-week moving average being determined weekly
by Citibank on the basis of such rates reported by certificate of
deposit dealers to and published by the Federal Reserve Bank of New
York or, if such publication shall be suspended or terminated, on the
basis of quotations for such rates received by Citibank, in either
case adjusted to the nearest 1/4 of one percent or, if there is no
nearest 1/4 of one percent, to the next higher 1/4 of one percent), by
--
(y) a percentage equal to 100% minus the average of the daily
percentages specified during such three-week period by the Board of
Governors of the Federal Reserve System for determining the maximum
reserve requirement (including, but not limited to, any marginal
reserve requirements for Citibank in respect of liabilities consisting
of or including (among other liabilities) three-month nonpersonal time
deposits of at least $100,000), plus (C) the average during such
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three-week period of the daily net annual assessment rates estimated
by Citibank for determining the current annual assessment payable by
Citibank to the Federal Deposit Insurance Corporation for insuring
three-month deposits in the United States; or
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"Reference Rate Loan" means a Loan at a rate of interest calculated
pursuant to Section 2.5.
"Register" is defined in Section 11.11(c).
"Reimbursement Date" has the meaning assigned to that term in Section
2.13(b).
"S&P" means Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc.
"Standby Letter of Credit" means any letter of credit other than a
Commercial Letter of Credit issued for the purpose of supporting performance,
payment, deposit or surety obligations of Finser Corporation, any LOC, Borrower
or any of its Subsidiaries.
"Subsidiaries" (individually a "Subsidiary") means those corporations
or entities of which Borrower owns more than fifty percent (50%) of the voting
securities. If Borrower (i) acquires similar ownership of or control over any
other corporation or entity, such corporation or entity shall thereupon be
deemed a Subsidiary for all purposes hereof, or (ii) subject to the terms
hereof, permits its ownership to fall to fifty percent (50%) or below of
outstanding voting shares or otherwise disposes of control of any Subsidiary,
such Subsidiary shall thereupon cease to be a Subsidiary for all purposes
hereof.
"Successor Guarantor" has the meaning assigned to such term in Section
8(a) of the Xxxxxx Guaranty.
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"Tax" and "Taxes" mean (i) all taxes, levies, imposts, duties, fees or
other charges of whatsoever nature however imposed by any country or any
subdivision or authority of or in that country in any way connected with this
Agreement or any instrument or agreement required hereunder, and all interest,
penalties or similar liabilities with respect thereto, except such taxes as are
imposed on or measured by any Bank's net income or capital and franchise taxes,
by the country or any subdivision or authority of or in that country in which
such Bank's principal office or actual Lending Office is located and (ii) any
present or future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies which arise from any payment made hereunder or
from the execution, delivery or registration of, or otherwise with respect to,
this Agreement.
"Termination Date" means September 19, 2003 or if such day is not a
Business Day, the next preceding Business Day.
"Total Utilization of Commitments" means, as at any date of
determination, the sum of (i) the aggregate principal amount of all outstanding
Loans (other than Loans made for the purpose of reimbursing the applicable
Issuing Bank for any amount drawn under any Letter of Credit but not yet so
applied) plus (ii) the Letter of Credit Usage, plus (iii) the aggregate
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principal amount of all outstanding loans to any Obligor under any overdraft
facility provided by Citibank to the Obligors.
"Unmatured Event of Default" means an event or condition which with
the passage of time or the giving of notice, or both, would become an Event of
Default.
"Usance Letter of Credit" means a Commercial Letter of Credit pursuant
to which a time draft, payable by its terms not more than 90 days from the date
thereof, is to be presented to the Issuing Bank for acceptance by such Issuing
Bank.
"White Holding" means White Holding B.V., a limited liability company
organized and existing under the laws of The Netherlands.
"White Holding Mexico" means White Holding Mexico, S de X.X. de C. V.,
a company organized and existing under the laws of the United Mexican States.
SECTION 2
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THE CREDIT
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2.1 The Commitments. (a) From time to time, during the Availability
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Period, each Bank severally agrees to make Loans to each of the Obligors in U.S.
Dollars in the aggregate principal amount for all Loans to all Obligors not to
exceed the amount of such Bank's Commitment; provided, however, that Loans shall
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not be made to White Holding after September 19, 2001 unless White Holding has
satisfied the conditions set forth in subsection 2.3(b).
(b) Each Bank shall make available to the Obligors Reference Rate
Loans and Eurodollar Loans up to the amount of such Bank's Commitment; provided,
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however, that Loans shall not be made to White Holding after September 19, 2001
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unless White Holding has satisfied
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the conditions set forth in subsection 2.3(b). In no event shall the Total
Utilization of Commitments at any time exceed the Total Commitment then in
effect.
2.2 Loans made to the Borrower and the Designated Subsidiaries. Each
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Loan made to a Borrower or Designated Subsidiary shall be a Reference Rate Loan
or a Eurodollar Loan and shall be in U.S. Dollars. Other than Loans made
pursuant to Section 2.13(b) for the purpose of reimbursing any Issuing Bank for
the amount of a drawing under a Letter of Credit issued by it, each Loan made to
a Borrower or Designated Subsidiary shall be in the minimum amount of One
Million Dollars ($1,000,000) with any additional amounts in integral multiples
of One Hundred Thousand Dollars ($100,000). This is a revolving credit and the
Obligors may, during the Availability Period, re-borrow amounts repaid or
prepaid; provided, however, that the Banks shall not be obligated to make Loans
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to White Holding after September 19, 2001 unless White Holding has satisfied the
conditions set forth in subsection 2.3(b). No Loan nor any part of any Loan
shall be prepaid except at the times and in the manner expressly provided
herein.
2.3 Requests for Reference Rate and Eurodollar Loans. (a) Each
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Reference Rate Loan and Eurodollar Loan shall be made upon irrevocable written
or telephonic notice, confirmed promptly in writing, substantially in the form
of Exhibit A hereto, by an Obligor to Administrative Agent received by
Administrative Agent not later than 11:00 a.m. New York time not less than three
(3) Eurodollar Banking Days prior to the Borrowing Date (which must be a
Eurodollar Banking Day) of a Eurodollar Loan and not later than 11:00 a.m. New
York time on the proposed Borrowing Date (which must be a Business Day) of a
Reference Rate Loan. Upon receipt of a request for a Reference Rate Loan and
Eurodollar Loan, Administrative Agent shall promptly notify the Banks of (i) the
name of the entity (Borrower or a Designated Subsidiary) to which such Loan is
to be made; (ii) the amount of such Loan, (iii) the Interest Period(s), if
applicable, and (iv) the Borrowing Date requested.
(b) White Holding hereby acknowledges and agrees that it shall not
request or receive Loans after September 19, 2001 unless (i) White Holding
certifies, in form and substance satisfactory to Administrative Agent, acting on
behalf of Banks, that an exemption is available under the provisions of the
banking law of The Netherlands for White Holding, and (ii) counsel for White
Holding delivers an opinion to Administrative Agent and the Banks, in form and
substance satisfactory to Administrative Agent, acting on behalf of Banks, to
that effect.
2.4 Guaranty. The Loans and all other obligations of each Obligor
--------
hereunder shall be irrevocably and unconditionally guaranteed, jointly and
severally, by the Guarantors pursuant to the Guaranties.
2.5 Interest and Principal on Reference Rate Loans. The outstanding
----------------------------------------------
Principal Amount of each Reference Rate Loan shall bear interest until payment
is due in full (computed daily on the basis of a three hundred sixty five or
three hundred sixty six, as the case may be, day year and actual days elapsed)
at the rate per annum equal to the Reference Rate. The Obligor to which such
Loan was made shall pay on each Interest Payment Date all accrued and unpaid
interest to such date on each Reference Rate Loan. Upon the occurrence and
during the continuance of any Event of Default described in Section 9.1(a), such
interest rate shall be increased by 2.0% per annum. The Obligor to which such
Loan was made shall repay in full the
12
Principal Amount of each Reference Rate Loan on the Termination Date or as
provided in Section 2.8(c).
2.6 Interest and Principal on Eurodollar Loans. (a) The outstanding
------------------------------------------
Principal Amount of each Eurodollar Loan shall bear interest until payment is
due in full (computed daily on the basis of a three hundred sixty (360) day year
and actual days elapsed) at a rate per annum equal to the Eurodollar Rate plus
the Applicable Margin. The Obligor to which such Loan was made shall pay
interest on each Eurodollar Loan on each Interest Payment Date for such
Eurodollar Loan. Upon the occurrence and during the continuance of any Event of
Default described in Section 9.1(a), such interest rate shall be increased by
2.0% per annum. The Obligor to which such Loan was made shall repay in full the
Principal Amount of each Eurodollar Loan on the last day of the Interest Period
for such Eurodollar Loan or as provided in Section 2.8(c).
(b) If any Reference Bank's Commitment (or, in the case of Citibank,
CUSA's Commitment) shall terminate (otherwise than on termination of all the
Commitments), or for any reason whatsoever the Reference Bank shall cease to be
a Bank hereunder, that Reference Bank shall thereupon cease to be a Reference
Bank, and the Eurodollar Rate shall be determined on the basis of the rates as
notified by the remaining Reference Banks. Each Reference Bank shall use its
best efforts to furnish quotations of rates to the Administrative Agent as
contemplated hereby. If any of the Reference Banks shall be unable or otherwise
fails to supply such rates to the Administrative Agent upon its request, the
rate of interest shall be determined on the basis of the quotations of the
remaining Reference Banks or Reference Bank.
2.7 Loan Accounts. Each Bank shall open and maintain on its books
-------------
one or more loan accounts in the name of each Obligor; provided that the failure
to open and maintain such loan accounts shall not affect the obligations of any
Obligor hereunder. Each loan account shall show (without duplication) as debits
thereto each Bank's portion of each Reference Rate Loan and/or Eurodollar Loan
and as credits thereto all Reference Rate Loan and/or Eurodollar Loan payments
received by such Bank for the account of such Bank and applied to principal so
that the balance of the loan account(s) at all times reflects the principal
amount due each Bank from each Obligor as Reference Rate Loans and Eurodollar
Loans. All entries in said books shall be presumptive evidence of the making of
each Reference Rate Loan and Eurodollar Loan, the obligation of each Obligor to
repay each Reference Rate Loan and Eurodollar Loan, and all payments received
and disbursed by such Bank. Each Obligor agrees that if, in the opinion of any
Bank, a promissory note or other evidence of debt is required or appropriate to
reflect or enforce any Loans outstanding to or to be made by such Bank, then
such Obligor shall promptly execute and deliver to such Bank one or more
promissory notes payable to such Bank to evidence the Loans outstanding to such
Bank under this Agreement from time to time, together with such documents as
such Bank may reasonably request to evidence the due authorization, execution,
delivery and enforceability of such notes. If any notes are issued hereunder,
Administrative Agent and the Obligors may treat the payee of that note as the
owner of such note for all purposes.
2.8 Conversion of Loans Between Eurodollar Loans and Reference Rate
---------------------------------------------------------------
Loans and Conversion of Interest Periods of Eurodollar Loans. (a) On any
------------------------------------------------------------
Eurodollar Banking Day, the Obligor to which a Loan was made may convert on a
pro rata basis among the Banks
13
any outstanding Reference Rate Loans or Eurodollar Loans into any other type of
Loan available to such Obligor hereunder, or the Obligor to which a Loan was
made may change the Interest Period of any Eurodollar Loan to another Interest
Period available under this Agreement, subject to the following limitations:
(i) Except as otherwise provided in Section 2.8(a)(iii), no
conversion of any Eurodollar Loan into any other Loan and no conversion of the
Interest Period of any Eurodollar Loan may be made except on the last day of an
Interest Period with respect thereto;
(ii) Any conversion shall be preceded by an irrevocable written or
telephonic notice from the Obligor to which a Loan was made that it elects such
conversion, which notice shall be received by Administrative Agent at least
three (3) Eurodollar Banking Days prior to the date requested for such
conversion from or into a Eurodollar Loan or conversion of the Interest Period
of a Eurodollar Loan; and
(iii) A Loan may be converted into a Loan of another type or may be
converted to another Interest Period on the effective date of an additional
Commitment pursuant to Section 11.21 if all Eurodollar Loans are simultaneously
converted on such date and each Obligor pays to the Administrative Agent all
accrued interest on the Eurodollar Loans being converted.
(b) Banks shall not be obligated to make or continue any Eurodollar
Loan when any Event of Default has occurred and is continuing, but such Loan
shall be automatically converted to a Reference Rate Loan on the last day of the
then current Interest Period, and, unless Section 2.9(f) is applicable, the
Obligor to which such Loan was made shall be obligated to pay interest at the
Reference Rate from the date any Loan is so converted until such Loan is repaid
in full regardless of the date when Administrative Agent obtains knowledge of
such Event of Default. Administrative Agent shall provide written notice of
such conversion to such Obligor.
(c) Each conversion of a Loan into a Reference Rate Loan or a
Eurodollar Loan, as the case may be, shall be effected by each Bank, on behalf
of the applicable Obligor, by making a simultaneous payment of the relevant
Eurodollar Loan, or Reference Rate Loan, as the case may be, from the proceeds
of the new Loans, procedures with respect thereto to be governed by the
provisions of Section 2.3 hereof, except that disbursement shall be made by
means of such payment rather than directly to such Obligor to the extent
applicable with respect to each Bank.
(d) If upon the expiration of any Interest Period applicable to
Eurodollar Loans, the Obligor to which such Loan was made has failed to select a
new Interest Period to be applicable thereto, or if any Event of Default or
Unmatured Event of Default shall then exist, the Obligor to which such Loan was
made shall be deemed to have elected to convert such Eurodollar Loans into
Reference Rate Loans effective as of the expiration date of such current
Interest Period.
2.9 Disbursements and Payments. (a) Each Reference Rate Loan and
--------------------------
Eurodollar Loan shall be made on a pro rata basis by Banks, and each Bank's
portion of each Loan shall be determined by application of its Percentage. Each
Bank's interest in each Loan
14
and each payment to such Bank under this Agreement shall be for the account of
such Bank's applicable Lending Office.
(b) Each Loan and each payment of principal, interest and other sums
under this Agreement shall be made in immediately available funds (or such other
funds as Administrative Agent may require) at Administrative Agent's Loan
Syndications Operations Center at Xxx Xxxxx Xxxxxx, 0xx Xxxxx Xxxx 0, Xxxx
Xxxxxx Xxxx, Xxx Xxxx 00000, Acct No. 36852248, ABA No. 000000000, Ref: SurFin
Ltd., Attn: Bank Loan Syndications or such other office designated by
Administrative Agent from time to time.
(c) Each Bank agrees it will make the funds which it is to advance
hereunder available to Administrative Agent at its address set forth in Section
2.9(b) or such other office designated by Administrative Agent from time to time
not later than 2:00 p.m. New York time on the Borrowing Date, and except as
provided in Section 2.13(b) with respect to Loans used to reimburse any Issuing
Bank for the amount of a drawing under a Letter of Credit issued by it,
Administrative Agent will thereupon promptly advance to the applicable Obligor
the amount so received from Banks.
(d) Payment of all sums under this Agreement shall be made by the
Obligors to Administrative Agent, and the latter shall promptly distribute to
each Bank its share of such payments. Each payment by the Obligors shall be
made without set-off or counterclaim and not later than 11:00 a.m. New York
time, in the case of Reference Rate Loans, and 2:00 p.m. New York time, in the
case of Eurodollar Loans, in each case on the day such payment is due. All sums
received after such time shall be deemed received on the next Business Day.
(e) If Administrative Agent makes available to an Obligor an amount
due from any Bank which such Bank fails to make available to Administrative
Agent, or if Administrative Agent makes available to any Bank an amount due from
an Obligor which such Obligor fails to make available to Administrative Agent,
such Obligor or such Bank, as the case may be, shall, on demand, refund such
amount to Administrative Agent, together with interest thereon for the period
during which such amount was available to such Obligor or such Bank, as the case
may be, at the Federal Funds Rate.
(f) Any sum of interest payable by an Obligor hereunder if not paid
when due shall bear interest (payable on demand) from its due date until payment
in full (computed daily on the basis of a three hundred sixty-five or three
hundred sixty-six, as the case may be, day year and actual days elapsed) at a
rate per annum equal to the Reference Rate plus two (2) percentage points.
2.10 Facility Fee. Borrower shall pay Administrative Agent for the
------------
account of the Banks, a facility fee (the "Facility Fee") on the Total
Commitment (without regard to the amount of Loans outstanding or Letter of
Credit Usage at any time hereunder) during the Availability Period at the rate
of (a) with respect to each day that Level 1 is applicable, 0.125% per annum,
(b) with respect to each day that Level 2 is applicable, 0.150% per annum, (c)
with respect to each day that Level 3 is applicable, 0.200% per annum, and (d)
with respect to each day that Level 4 is applicable, 0.250% per annum;
provided, however, following any reduction in the Total Commitment pursuant to
-------- -------
Section 3.5 or 3.6 hereof the computation of the Facility
15
Fee shall be based upon such reduced Total Commitment as of the effective date
of such reduction. The Facility Fee shall be computed on a calendar quarter
basis. The Facility Fee shall be calculated on the basis of a three hundred
sixty day year and actual days elapsed, which results in a higher fee than if a
365/366-day year were used, and shall be payable on the last day of each March,
June, September and December (for the Facility Fee accrued and unpaid to such
date), on the Termination Date and on the date of the cancellation of any
portion of the Commitments in accordance with Section 3.10. The applicable Level
shall be determined by the Administrative Agent on the basis of timely
information furnished to it by Borrower, Xxxxxx, Xxxxx'x or S&P with respect to
the rating on Long-term Debt; any change in the Facility Fee shall be effective
on the earlier of the date on which such rating change is publicly announced or
on the date written confirmation of a change in the rating on Long-term Debt is
sent to Borrower or Xxxxxx by Xxxxx'x or S&P.
2.11 Issuance of Letters of Credit and Banks' Purchase of
----------------------------------------------------
Participations in Participated Letters of Credit.
------------------------------------------------
(a) Letters of Credit. In addition to each Obligor's ability to
-----------------
request that Banks make Loans pursuant to subsection 2.1(a), each Obligor may
request, in accordance with the provisions of this subsection 2.11, from time to
time during the period from the Effective Date until the date which is 30 days
prior to the Termination Date, that one or more Issuing Banks issue Letters of
Credit for the account of such Obligor for the purposes specified in the
definitions of Commercial Letters of Credit and Standby Letters of Credit. Each
Obligor may, in its sole discretion, determine whether or not each Letter of
Credit so requested will be subject to participation by all the Banks pursuant
to subsection 2.11(c) (each Letter of Credit subject to participation being a
"Participated Letter of Credit" and collectively, the "Participated Letters of
Credit", and such Letter of Credit not subject to participation by all the Banks
pursuant to subsection 2.11(d) being a "Non-Participated Letter of Credit" and
collectively the "Non-Participated Letters of Credit"). Subject to the terms
and conditions of this Agreement and in reliance upon the representations and
warranties of the Obligors herein set forth, any one or more Banks may, but
shall not be obligated to, issue such Letters of Credit in accordance with the
provisions of this subsection 2.11 and in accordance with such Bank's standard
form of application for issuance of letters of credit; provided that no Obligor
--------
shall request that any Issuing Bank issue (and no Issuing Bank shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the
Total Utilization of Commitments would exceed the Total Commitment then in
effect;
(ii) any Standby Letter of Credit having an expiration date later than
the earlier of (1) the date which is 30 days prior to the Termination Date and
(2) the date which is one year from the date of issuance of such Standby Letter
of Credit; provided that the immediately preceding clause (2) shall not prevent
--------
any Issuing Bank from agreeing that a Standby Letter of Credit will
automatically be extended for one or more successive periods not to exceed one
year each (it being understood that such Standby Letter of Credit shall not be
automatically extended to a date later than 30 days prior to the Termination
Date) unless such Issuing Bank elects not to extend for any such additional
period; and provided, further that such Issuing Bank shall elect not to extend
-------- -------
such Standby Letter of Credit if it has received written notice from
Administrative Agent that an Event of Default has occurred and is continuing
(and
16
has not been waived in accordance with subsection 11.3) at the time such Issuing
Bank must elect whether or not to allow such extension;
(iii) any Commercial Letter of Credit (other than a Usance Letter of
Credit) having an expiration date (1) later than the earlier of (x) the date
which is 30 days prior to the Termination Date and (y) the date which is 180
days from the date of issuance of such Commercial Letter of Credit or (2) that
is otherwise unacceptable to the applicable Issuing Bank in its reasonable
discretion;
(iv) any Usance Letter of Credit (1) having an expiration date later
than (x) the date which is 100 days prior to the Termination Date, or (y) 180
days from the date of issuance of such Usance Letter of Credit or (2) that is
otherwise unacceptable to the applicable Issuing Bank in its reasonable
discretion;
(v) any Letter of Credit denominated in a currency other than
Dollars; or
(vi) any Letter of Credit not governed by the Uniform Customs and
Practice for Documentary Credits (1993 Revision) International Chamber of
Commerce Brochure No. 500, and any subsequent revisions thereto as agreed
between the Obligor for whose account such Letter of Credit is issued and the
applicable Issuing Bank.
In case of any conflict between (i) an Issuing Bank's standard form of
application for issuance of letters of credit and (ii) the terms of this
Agreement, the terms of this Agreement shall govern. Notwithstanding anything
to the contrary contained in an Issuing Bank's standard form of application for
issuance of letters of credit, no lien shall be granted to such Issuing Bank on
any property of Borrower or its Subsidiaries to secure the obligation of an
Obligor with respect to a Letter of Credit, except as otherwise provided in
Section 9.4.
(b) Mechanics of Issuance.
(i) Notice of Issuance. Whenever an Obligor desires the issuance of
------------------
a Letter of Credit, it shall deliver, in case of a Participated Letter of
Credit, to Administrative Agent, or in case of a Non-Participated Letter of
Credit, to the Issuing Bank (with a copy to Administrative Agent), an L/C
Request substantially in the form of Exhibit K hereto, accompanied by an
executed application for issuance of such Letter of Credit in the standard form
then utilized by the Issuing Bank, no later than 11:00 A.M. (New York City time)
at least two Business Days or such shorter period as may be agreed to by the
Issuing Bank in any particular instance, in advance of the proposed date of
issuance. The L/C Request shall specify (a) the proposed date of issuance (which
shall be a Business Day), (b) whether the Letter of Credit is to be a Standby
Letter of Credit or a Commercial Letter of Credit (and, if a Commercial Letter
of Credit, whether such Commercial Letter of Credit is to be a Usance Letter of
Credit), (c) the face amount of the Letter of Credit, which shall be a minimum
of One Million Dollars ($1,000,000) in case of a Participated Letter of Credit
which is a Commercial Letter of Credit, (d) the expiration date of the Letter of
Credit, (e) whether the Letter of Credit is to be a Participated Letter of
Credit or a Non-Participated Letter of Credit, (f) either the verbatim text of
the proposed Letter of Credit or the proposed terms and conditions thereof,
including a precise description of any documents to be presented by the
beneficiary which, if presented by the beneficiary prior to the expiration date
17
of the Letter of Credit, would require the Issuing Bank to make payment
(including pursuant to an Accepted Time Draft) under the Letter of Credit and
(g) the purpose of the proposed Letter of Credit; provided that the Issuing
--------
Bank, in its reasonable discretion, may require, subject to the consent by the
Obligor that requested such Letter of Credit, changes in the text of the
proposed Letter of Credit or any such documents, and the date of issuance of
such Letter of Credit shall be extended until such changes have been agreed to
by such Obligor (it being understood that the Issuing Bank shall not be
obligated to issue any Letter of Credit if such changes are not agreed to by
such Obligor); and provided, further that no Letter of Credit shall require
-------- -------
payment against (or, in the case of a Usance Letter of Credit, acceptance of) a
conforming draft on the same business day (under the laws of the jurisdiction in
which the office of the Issuing Bank to which such draft is required to be
presented is located) that such draft is presented.
The Obligor requesting any Letter of Credit shall notify the
applicable Issuing Bank (and Administrative Agent, if Citibank is not such
Issuing Bank) prior to the issuance of such Letter of Credit in the event that
any of the matters to which such Obligor is required to certify in the
applicable L/C Request is no longer true and correct as of the proposed date of
issuance of such Letter of Credit, and upon the issuance of any Letter of Credit
such Obligor shall be deemed to have re-certified, as of the date of such
issuance, as to the matters to which such Obligor is required to certify in the
applicable L/C Request.
(ii) Determination of Issuing Bank.
-----------------------------
(A) Upon receipt by Administrative Agent of an L/C Request pursuant to
subsection 2.11(b)(i) requesting the issuance of a Participated Letter of
Credit, in the event Citibank elects to issue such Participated Letter of
Credit, Administrative Agent shall promptly so notify the Obligor
requesting such Letter of Credit, and Citibank shall be the Issuing Bank
with respect thereto. In the event that Citibank in its sole discretion,
elects not to issue such Participated Letter of Credit, Administrative
Agent shall promptly so notify the Obligor requesting such Letter of
Credit, whereupon such Obligor may request any other Bank to issue such
Participated Letter of Credit by delivering to such Bank a copy of the
applicable L/C Request. Any Bank so requested to issue such Participated
Letter of Credit shall promptly notify such Obligor and Administrative
Agent whether or not, in its sole discretion, it has elected to issue such
Participated Letter of Credit, and any such Bank which so elects to issue
such Participated Letter of Credit shall be the Issuing Bank with respect
thereto.
(B) In the event an Obligor desires to request the issuance of a Non-
Participated Letter of Credit, it shall, prior to its delivery of an L/C
Request pursuant to subsection 2.11(b)(i), request any Bank to issue such
Non-Participated Letter of Credit for such fees or other compensation as
may be agreed upon solely between such Obligor and such Bank. Any Bank
may, but shall not be obligated to, issue such Non-Participated Letters of
Credit in accordance with the provisions of this subsection 2.11. Any such
Bank which so elects to issue such Non-Participated Letter of Credit shall
be the Issuing Bank with respect thereto, and such Obligor shall provide an
L/C Request with respect to such Non-Participated Letter of Credit in
accordance with the provisions of subsection 2.11(b)(i), which L/C Request
shall specify that the Letter of Credit requested shall be a Non-
Participated Letter of Credit.
18
(iii) Issuance of Letter of Credit. Upon satisfaction or waiver (in
----------------------------
accordance with subsection 11.3) of the conditions set forth in Section 5.3, the
Issuing Bank shall issue the requested Letter of Credit in accordance with the
Issuing Bank's standard operating procedures.
(iv) Notification to Administrative Agent. Upon the issuance of any
------------------------------------
Letter of Credit the applicable Issuing Bank shall promptly notify
Administrative Agent of such issuance, which notice shall specify whether such
Letter of Credit is a Participated Letter of Credit or a Non-Participated Letter
of Credit and shall be accompanied by a copy of such Letter of Credit. Upon (x)
each payment under a Letter of Credit, (y) each acceptance of a draft under a
Usance Letter of Credit, and (z) any amendment of a Letter of Credit changing
the amount or expiry date thereof, the Issuing Bank of such Letter of Credit
shall promptly notify Administrative Agent of such event.
(v) Monthly Report. Within 15 days after the end of each month, so
--------------
long as any Letter of Credit or Accepted Time Draft shall have been outstanding
during such month, the Administrative Agent shall deliver to each Bank a report
setting forth for such month the daily aggregate amount available to be drawn
under Standby Letters of Credit and Commercial Letters of Credit, the daily
aggregate amount of outstanding Accepted Time Drafts, and the amount such Bank's
participation interest, if any, in each of the foregoing aggregate amounts.
(c) Banks' Purchase of Participations in Participated Letters of
------------------------------------------------------------
Credit and Accepted Time Drafts. Immediately upon the issuance of each
-------------------------------
Participated Letter of Credit, each Bank shall be deemed to, and hereby agrees
to, have irrevocably purchased from the Issuing Bank a participation in such
Participated Letter of Credit and any drawings honored thereunder and any
Accepted Time Drafts created thereunder in an amount equal to such Bank's share
based on its Percentage of the maximum amount which is or at any time may become
available to be drawn (including by way of presentation of time drafts)
thereunder.
(d) Non-Participated Letters of Credit and Accepted Time Drafts. No
-----------------------------------------------------------
Bank shall be deemed to have purchased from any Issuing Bank a participation in
any Non-Participated Letter of Credit issued by such Issuing Bank and any
drawings honored thereunder and any Accepted Time Drafts created thereunder.
2.12 Letter of Credit Fees.
---------------------
(a) Each Obligor agrees to pay the following amounts with respect
to Participated Letters of Credit issued for its account hereunder:
(i) with respect to each Standby Letter of Credit which is a
Participated Letter of Credit, (1) a fronting fee, payable directly to the
applicable Issuing Bank for its own account, as may be agreed between such
Obligor and the applicable Issuing Bank in a separate fee letter, it being
understood that all payment obligations of such Obligor to any Issuing Bank
pursuant to such fee letter shall be deemed to be obligations of such Obligor
under this Agreement, and (2) a letter of credit fee, payable to Administrative
Agent for the account of Banks, equal to the Applicable Margin per annum of the
daily amount available to be drawn under such Standby Letter of Credit, each
such fronting fee or letter of credit fee to be payable in arrears on and to
19
the last day of March, June, September and December of each year and on the
Termination Date, and computed on the basis of a 360-day year for the actual
number of days elapsed;
(ii) with respect to each Commercial Letter of Credit which is a
Participated Letter of Credit, such fees (which may include issuance, amendment,
payment and acceptance fees), payable directly to the applicable Issuing Bank
for its own account, as may be agreed between such Obligor and the applicable
Issuing Bank in a separate fee letter, it being understood that all payment
obligations of such Obligor to any Issuing Bank pursuant to such fee letter
shall be deemed to be obligations of such Obligor under this Agreement;
(iii) with respect to each Accepted Time Draft created under a
Participated Letter of Credit, an Accepted Time Draft fee, payable to
Administrative Agent for the account of Banks, equal to 0.75% per annum of the
daily outstanding amount of such Accepted Time Draft, payable in arrears on and
to the last day of March, June, September and December of each year and on the
Termination Date, and computed on the basis of a 360-day year for the actual
number of days elapsed; and
(iv) with respect to each Participated Letter of Credit and each
payment of a drawing made thereunder (without duplication of the fees payable
under clauses (i) and (ii) above), documentary and processing charges (unless
the applicable Participated Letter of Credit requires the beneficiary thereof to
pay such documentary and processing charges) payable directly to the applicable
Issuing Bank for its own account in accordance with such Issuing Bank's standard
schedule for such charges as disclosed to such Obligor on or prior to the
issuance of such Participated Letter of Credit.
For purposes of calculating any fees payable under clauses (i) and
(ii) of this subsection 2.12(a), the daily amount available to be drawn under
any Letter of Credit shall be determined as of the close of business on any date
of determination. Promptly upon receipt by Administrative Agent of any amount
described in clause (i)(2) or (iii) of this subsection 2.12(a), Administrative
Agent shall distribute to each Bank such Bank's share of such amount based on
such Bank's Percentage.
(b) Each Obligor for whose account a Letter of Credit is issued
hereunder agrees to pay such issuance fee, letter of credit fee, Accepted Time
Draft fee, or such other fees (which may include issuance, drawing, amendment,
payment and acceptance fees) and charges (which may include documentary and
processing charges (unless the applicable Non-Participated Letter of Credit
requires the beneficiary thereof to pay such documentary and processing
charges)) with respect to Non-Participated Letters of Credit issued hereunder,
payable directly to the applicable Issuing Bank for its own account, as may be
agreed between such Obligor and the applicable Issuing Bank in a separate fee
letter, it being understood that all payment obligations of such Obligor to any
Issuing Bank pursuant to such fee letter shall be deemed to be obligations of
such Obligor under this Agreement, each such issuance fee, letter of credit fee
or Accepted Time Draft fee to be payable in arrears on and to the last day of
March, June, September and December of each year and on the Termination Date or
such other times as may be agreed between such Obligor and the applicable
Issuing Bank.
20
2.13 Drawings and Reimbursement of Amounts Paid Under Letters of Credit.
------------------------------------------------------------------
(a) Responsibility of Issuing Bank With Respect to Drawings. In
-------------------------------------------------------
determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, the Issuing Bank shall be responsible only to examine the
documents delivered under such Letter of Credit with reasonable care so as to
ascertain whether they appear on their face to be in accordance with the terms
and conditions of such Letter of Credit.
(b) Reimbursement by Obligors of Amounts Paid Under Letters of
-----------------------------------------------------------
Credit. In the event an Issuing Bank has determined to honor a drawing under a
------
Letter of Credit issued by it (including by way of accepting an Accepted Time
Draft under a Usance Letter of Credit), such Issuing Bank shall immediately
notify Administrative Agent and the Obligor for whose account such Letter of
Credit was issued, and such Obligor shall reimburse such Issuing Bank on or
before the Business Day on which such drawing is honored by payment (or, if the
drawing is honored by accepting an Accepted Time Draft, on or before the
Business Day on which such Accepted Time Draft is payable) (any such date being
the "Reimbursement Date") in an amount in dollars and in same day funds equal to
the amount of such honored drawing or Accepted Time Draft, as the case may be;
provided that anything contained in this Agreement to the contrary
--------
notwithstanding, (i) unless such Obligor shall have notified Administrative
Agent and such Issuing Bank prior to 10:00 A.M. (New York City time) on the date
such drawing is honored by payment or Accepted Time Draft is payable that such
Obligor intends to reimburse such Issuing Bank for the amount of such honored
drawing or Accepted Time Draft, as the case may be, with funds other than the
proceeds of Loans (it being understood that White Holding must reimburse such
Issuing Bank with funds other than proceeds of Loans after September 19, 2001
unless the conditions set forth in subsection 2.3(b) have been satisfied), such
Obligor shall be deemed to have given a timely Loan Request to Administrative
Agent requesting Banks to make Loans that are Reference Rate Loans on the
Reimbursement Date in an amount in dollars equal to the amount of such honored
drawing or Accepted Time Draft, as the case may be, and (ii) subject to
satisfaction or waiver of the conditions specified in Section 5.2, Banks shall,
on the Reimbursement Date, make Loans that are Reference Rate Loans in the
amount of such honored drawing or Accepted Time Draft, as the case may be, the
proceeds of which shall be applied directly by Administrative Agent to reimburse
such Issuing Bank for the amount of such honored drawing or Accepted Time Draft,
as the case may be; and provided, further that if for any reason proceeds of
-------- -------
Loans are not received by such Issuing Bank on the Reimbursement Date in an
amount equal to the amount of such honored drawing or Accepted Time Draft, as
the case may be, such Obligor shall reimburse such Issuing Bank, on demand, in
an amount in same day funds equal to the excess of the amount of such honored
drawing or Accepted Time Draft, as the case may be, over the aggregate amount of
such Loans, if any, which are so received. Nothing in this Section 2.13(b)
shall be deemed to relieve any Bank from its obligation to make Loans on the
terms and conditions set forth in this Agreement, and each Obligor shall retain
any and all rights it may have against any Bank resulting from the failure of
such Bank to make such Loans under this Section 2.13(b).
21
(c) Payment by Banks of Unreimbursed Amounts Paid Under Participated
----------------------------------------------------------------
Letters of Credit.
-----------------
(i) Payment by Banks in case of Participated Letters of Credit. In
----------------------------------------------------------
the event that any Obligor shall fail for any reason to reimburse any Issuing
Bank as provided in Section 2.13(b) in an amount equal to the amount of any
drawing honored by such Issuing Bank under a Participated Letter of Credit
issued by it or the amount of an Accepted Time Draft accepted by it, such
Issuing Bank shall promptly notify each other Bank of the unreimbursed amount of
such honored drawing or Accepted Time Draft, as the case may be, and of such
other Bank's respective participation therein based on such other Bank's
Percentage. Each Bank shall make available to such Issuing Bank an amount equal
to its respective participation, in dollars and in same day funds, at the office
of such Issuing Bank specified in such notice, not later than 2:00 P.M. (New
York City time) on the first business day (under the laws of the jurisdiction in
which such office of such Issuing Bank is located) after the date notified by
such Issuing Bank. In the event that any Bank fails to make available to such
Issuing Bank on such business day the amount of such Bank's participation in
such Participated Letter of Credit or Accepted Time Draft, as the case may be,
as provided in this Section 2.13(c), such Issuing Bank shall be entitled to
recover such amount on demand from such Bank together with interest thereon at
the rate customarily used by such Issuing Bank for the correction of errors
among banks for three Business Days and thereafter at the Reference Rate.
Nothing in this Section 2.13(c) shall be deemed to prejudice the right of any
Bank to recover from any Issuing Bank any amounts made available by such Bank to
such Issuing Bank pursuant to this Section 2.13(c), plus interest thereon at the
Reference Rate, in the event that it is determined by the final judgment of a
court of competent jurisdiction that the payment or acceptance of an Accepted
Time Draft with respect to a Participated Letter of Credit by such Issuing Bank
in respect of which payment or acceptance of an Accepted Time Draft was made by
such Bank constituted gross negligence or willful misconduct on the part of such
Issuing Bank.
(ii) Distribution to Banks of Reimbursements Received From Obligors
--------------------------------------------------------------
with respect to Participated Letters of Credit. In the event any Issuing Bank
----------------------------------------------
shall have been reimbursed by other Banks pursuant to Section 2.13(c)(i) for all
or any portion of any drawing honored or Accepted Time Draft accepted by such
Issuing Bank under a Participated Letter of Credit issued by it, such Issuing
Bank shall distribute to each other Bank which has paid all amounts payable by
it under Section 2.13(c)(i) with respect to such honored drawing or Accepted
Time Draft such other Bank's share based on such other Bank's Percentage of all
payments subsequently received by such Issuing Bank from an Obligor in
reimbursement of such honored drawing or Accepted Time Draft when such payments
are received. Any such distribution shall be made to a Bank at its primary
address set forth in Exhibit C or at such other address as such Bank may
request.
(d) Interest on Amounts Paid Under Letters of Credit.
------------------------------------------------
(i) Payment of Interest by Obligors. Each Obligor agrees to pay to
-------------------------------
each Issuing Bank, with respect to drawings honored under any Letters of Credit
issued by such Issuing Bank for such Obligor's account, interest on the amount
paid by such Issuing Bank in respect of each such honored drawing from the date
such drawing is honored (or in the case of drawings honored by accepting an
Accepted Time Draft, the date such Accepted Time Draft is
22
paid) to but excluding the date such amount is reimbursed by an Obligor
(including any such reimbursement out of the proceeds of Loans pursuant to
Section 2.13(b), if applicable) at a rate equal to (1) for the period from the
date such drawing is honored to but excluding the date that is two Business Days
following the date such drawing is honored, the rate then in effect under this
Agreement with respect to Loans that are Reference Rate Loans and (2)
thereafter, a rate which is 2% per annum in excess of the rate of interest
otherwise payable under this Agreement with respect to Loans that are Reference
Rate Loans. Interest payable pursuant to this subsection 2.13(d)(i) shall be
computed on the basis of a 360-day year for the actual number of days elapsed in
the period during which it accrues and shall be payable on demand or, if no
demand is made, on the date on which the related drawing under a Letter of
Credit is reimbursed in full.
(ii) Distribution of Interest Payments by Issuing Bank with respect to
-----------------------------------------------------------------
Participated Letters of Credit. Promptly upon receipt by any Issuing Bank of
------------------------------
any payment of interest pursuant to subsection 2.13(d)(i) with respect to a
drawing honored under a Participated Letter of Credit issued by it, (1) such
Issuing Bank shall distribute to each other Bank, out of the interest received
by such Issuing Bank in respect of the period from the date such drawing is
honored (or in the case of drawings honored by accepting an Accepted Time Draft,
the date such Accepted Time Draft is paid) to but excluding the date on which
such Issuing Bank is reimbursed for the amount of such drawing (including any
such reimbursement out of the proceeds of Loans pursuant to subsection 2.13(b)),
the amount that such other Bank would have been entitled to receive in respect
of the letter of credit fee that would have been payable in respect of such
Participated Letter of Credit for such period pursuant to Section 2.12 if no
drawing had been honored under such Participated Letter of Credit, and (2) in
the event such Issuing Bank shall have been reimbursed by other Banks pursuant
to subsection 2.13(c)(i) for all or any portion of such honored drawing, such
Issuing Bank shall distribute to each other Bank which has paid all amounts
payable by it under subsection 2.13(c)(i) with respect to such honored drawing
such other Bank's share of any interest based on such other Bank's Percentage
received by such Issuing Bank in respect of that portion of such honored drawing
so reimbursed by other Banks for the period from the date on which such Issuing
Bank was so reimbursed by other Banks to but excluding the date on which such
portion of such honored drawing is reimbursed by the Obligors. Any such
distribution shall be made to a Bank at its primary address set forth in Exhibit
C or at such other address as such Bank may request.
(e) White Holding hereby acknowledges and agrees that it shall not
request or receive Letters of Credit issued for its account pursuant to this
Agreement until such time as (a) White Holding certifies, in form and substance
satisfactory to Administrative Agent, that it has either obtained or does not
require an authorization from the Netherlands government with respect to its
execution, delivery and performance of the Credit Agreement and that all
representations and warranties as to White Holding set forth in Section 6 of
this Agreement are true and correct; (b) Netherlands counsel for White Holding
delivers to the Administrative Agent and the Banks an opinion covering the
matters set forth in Exhibit F-2 hereto; (c) New York counsel for White Holding
delivers an opinion covering the matters set forth in Exhibit G hereto; and (d)
all corporate and other proceedings taken or to be taken in connection with the
execution, delivery and performance by White Holding of the Credit Agreement and
all documents incidental thereto are satisfactory in form and substance to
Administrative Agent, acting on behalf of the Banks, and its counsel. At such
time, Administrative Agent will notify Borrower,
23
White Holding and White Holding Mexico that White Holding may thereafter request
and receive Letters of Credit issued for its account pursuant to the Credit
Agreement.
2.14 Obligations Absolute.
--------------------
The obligation of each Obligor to reimburse each Issuing Bank for
drawings honored under the Letters of Credit issued by such Issuing Bank for
such Obligor's account and to repay any Loans made by Banks pursuant to Section
2.13(b) and the obligations of Banks under subsection 2.13(c)(i) shall be
unconditional and irrevocable and shall be paid strictly in accordance with the
terms of this Agreement and such Issuing Bank's standard form of application for
issuance of letters of credit under all circumstances including, without
limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement, any
Letter of Credit or any other agreement, application, amendment, guaranty,
document or instrument relating thereto;
(ii) the existence of any claim, set-off, defense or other right
which any Obligor or any Bank may have at any time against a beneficiary or any
transferee of any Letter of Credit (or any Persons for whom any such transferee
may be acting), any Issuing Bank or other Bank or any other Person or, in the
case of a Bank, against any Obligor, whether in connection with this Agreement,
the transactions contemplated herein or any unrelated transaction (including any
underlying transaction between any Obligor or one of its Subsidiaries and the
beneficiary for which any Letter of Credit was procured);
(iii) any draft or other document presented under any Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect;
(iv) payment of a drawing or acceptance of an Accepted Time Draft by
the applicable Issuing Bank under any Letter of Credit against presentation of a
draft or other document which does not substantially comply with the terms of
such Letter of Credit, unless (A) the applicable Issuing Bank and Administrative
Agent receive from the Obligor for whose account such Letter of Credit was
issued notice in writing of such noncompliance within three Business Days after
such Obligor shall have received such draft or such other document, and (B) such
Obligor takes all reasonable steps to mitigate any loss;
(v) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of any Obligor or any of
its Subsidiaries;
(vi) any breach of this Agreement or any other Loan Document by any
party thereto;
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing; or
(viii) the fact that an Event of Default or a Unmatured Event of
Default shall have occurred and be continuing;
24
provided, in each case, that payment or acceptance of an Accepted Time
--------
Draft or other draft under a Letter of Credit by the applicable Issuing
Bank under the applicable Letter of Credit shall not have constituted gross
negligence or willful misconduct of such Issuing Bank under the
circumstances in question.
2.15 Indemnification; Nature of Issuing Banks' Duties.
------------------------------------------------
(a) Indemnification. In addition to amounts payable as provided in
---------------
Section 2.16, each Obligor hereby agrees to protect, indemnify, pay and save
harmless each Issuing Bank from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of counsel and allocated costs of internal
counsel) which such Issuing Bank may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of any Letter of Credit by such Issuing
Bank for the account of such Obligor, other than as a result of (1) the gross
negligence or willful misconduct of such Issuing Bank or (2) subject to the
following clause (ii), the wrongful dishonor by such Issuing Bank of a proper
demand for payment made under any Letter of Credit issued by it, (ii) the
failure of such Issuing Bank to honor a drawing under any such Letter of Credit
as a result of any act or omission, whether rightful or wrongful, of any present
or future de jure or de facto government or governmental authority (all such
acts or omissions herein called "Governmental Acts") or (iii) the enforcement of
this Agreement.
(b) Nature of Issuing Banks' Duties. As between each Obligor and any
-------------------------------
Issuing Bank, such Obligor assumes all risks of the acts and omissions of, the
solvency of, or misuse of the Letters of Credit issued by such Issuing Bank by,
the respective beneficiaries of such Letters of Credit. In furtherance and not
in limitation of the foregoing, such Issuing Bank shall not be responsible for:
(i) the form, validity, sufficiency, accuracy, genuineness or legal effect of
any document submitted by any party in connection with the application for and
issuance of any such Letter of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) failure of the beneficiary of
any such Letter of Credit to comply fully with any conditions required in order
to draw upon such Letter of Credit, it being understood that such Obligor shall
not be required to reimburse or otherwise indemnify the Issuing Bank in respect
of any payments or acceptance of an Accepted Time Drafts by such Issuing Bank
under the applicable Letter of Credit constituting gross negligence or willful
misconduct of such Issuing Bank under the circumstances in question; (iv)
errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether or not they be
in cipher; (v) errors in interpretation of technical terms or in translation;
(vi) any loss or delay in the transmission or otherwise of any document required
in order to make a drawing under any such Letter of Credit or of the proceeds
thereof; (vii) the misapplication by the beneficiary of any such Letter of
Credit of the proceeds of any drawing under such Letter of Credit; (viii) any
consequences arising from causes beyond the control of such Issuing Bank,
including without limitation any Governmental Acts, and none of the above shall
affect or impair, or prevent the vesting of, any of such Issuing Bank's rights
or powers hereunder; (ix) the effectiveness or suitability of any Letter of
Credit for such Obligor's purpose, or be regarded as the drafter of such Letter
of Credit regardless of any assistance that the Issuing
25
Bank may, in its discretion, provide to such Obligor in preparing the text of
the Letter of Credit or amendments thereto; or (x) any consequential or special
damages, or for any damages resulting from any change in the value of any goods
or other property covered by any Letter of Credit.
An Issuing Bank may, without being placed under any resulting
liability, (i) rely upon any oral, telephonic, telegraphic, facsimile,
electronic, written or other communication believed in Good Faith to have been
authorized (in writing) by an Obligor, whether or not given or signed by an
authorized person; (ii) disregard (A) any requirement stated in a Letter of
Credit that any draft, certificate or other document be presented to it at a
particular hour or place and (B) any discrepancies that do not reduce the value
of the beneficiary's performance to any Obligor in any transaction underlying a
Letter of Credit; (iii) accept as a draft any written demand for payment under a
Letter of Credit, regardless of the legal sufficiency of such demand as a draft;
(iv) honor a previously dishonored presentation under a Letter of Credit,
whether pursuant to court order, to settle or compromise any claim that it
wrongfully dishonored, or otherwise, and shall be entitled to reimbursement to
the same extent as if it had initially honored plus reimbursement of any
interest paid by it; or (v) may pay any paying or negotiating bank (designated
or permitted by the terms of a Letter of Credit) claiming that it rightfully
honored under the laws or practices of the place where it is located.
In furtherance and extension and not in limitation of the specific
provisions set forth in the first two paragraphs of this Section 2.15(b), any
action taken or omitted by any Issuing Bank under or in connection with the
Letters of Credit issued by it or any documents and certificates delivered
thereunder, if taken or omitted in Good Faith, shall not put such Issuing Bank
under any resulting liability to the Obligors.
Notwithstanding anything to the contrary contained in this Section
2.15, each Obligor shall retain any and all rights it may have against any
Issuing Bank for any liability arising out of the gross negligence or willful
misconduct of such Issuing Bank.
2.16 Increased Costs and Taxes Relating to Letters of Credit.
-------------------------------------------------------
Subject to the provisions of Section 3.2 (which shall be controlling
with respect to the matters covered thereby), in the event that any Issuing Bank
or Bank shall determine (which determination shall, absent manifest error, be
final and conclusive and binding upon all parties hereto) that any law, treaty
or governmental rule, regulation or order, or any change therein or in the
interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or order),
or any determination of a court or governmental authority, in each case that
becomes effective after the date hereof, or compliance by any Issuing Bank or
Bank with any guideline, request or directive issued or made after the date
hereof by any central bank or other governmental or quasi-governmental authority
(whether or not having the force of law):
(i) subjects such Issuing Bank or Bank (or its applicable lending or
letter of credit office) to any additional Tax (other than any Tax on the
overall net income of such Issuing Bank or Bank) with respect to the issuing or
maintaining of any Letters of Credit, accepting an Accepted Time Draft or the
purchasing or maintaining of any participations therein or any other
26
obligations under this Section 2 with respect to Letters of Credit or Accepted
Time Drafts, whether directly or by such being imposed on or suffered by any
particular Issuing Bank;
(ii) imposes, modifies or holds applicable any reserve (including
without limitation any marginal, emergency, supplemental, special or other
reserve), special deposit, compulsory loan, FDIC insurance or similar
requirement in respect of any Letters of Credit issued by any Issuing Bank or
Accepted Time Drafts or participations therein purchased by any Bank; or
(iii) imposes any other condition (other than with respect to a Tax
matter) on or affecting such Issuing Bank or Bank (or its applicable lending or
letter of credit office) regarding this Section 2 with respect to Letters of
Credit or any Letter of Credit or Accepted Time Drafts or any participation
therein;
and the result of any of the foregoing is to increase the cost to such
Issuing Bank or Bank of agreeing to issue, issuing or maintaining any
Letter of Credit or Accepted Time Drafts or agreeing to purchase,
purchasing or maintaining any participation therein or to reduce any amount
received or receivable by such Issuing Bank or Bank (or its applicable
lending or letter of credit office) with respect thereto; then, in any
case, the Obligor for whose account such Letter of Credit was issued shall
promptly pay to such Issuing Bank or Bank, upon receipt of the statement
referred to in the next sentence, such additional amount or amounts as may
be necessary to compensate such Issuing Bank or Bank for any such increased
cost or reduction in amounts received or receivable hereunder. Such
Issuing Bank or Bank shall deliver to Borrower a written statement, setting
forth in reasonable detail the basis for calculating the additional amounts
owed to such Issuing Bank or Bank under this Section 2.16, which statement
shall be conclusive and binding upon all parties hereto absent manifest
error.
2.17 Survival of Certain Provisions Relating to Letters of Credit.
------------------------------------------------------------
Notwithstanding anything in this Agreement or implied by law to the
contrary, the agreements of the Obligors set forth in Sections 2.15 and 2.16
shall survive the termination of this Agreement.
SECTION 3
---------
PAYMENT OF COSTS AND REDUCTION OF THE COMMITMENT
------------------------------------------------
3.1 Indemnification Upon Failure to Pay Eurodollar Loan. If an
---------------------------------------------------
Obligor makes any payment of principal with respect to any Eurodollar Loan on a
day other than the last day of the then current Interest Period applicable to
such Loan (including without limitation any payment upon reduction of the
Commitments) or fails to borrow, prepay, continue or convert its Eurodollar Loan
on a date designated to Administrative Agent in a notice pursuant to this
Agreement (if such failure does not result from the application of Sections 4.1
or 4.2), such Obligor shall reimburse each Bank within fifteen (15) days after
receipt of written demand for any loss incurred by it as a result of the timing
of such payment or non-borrowing not reflected in the Eurodollar Rate, including
without limitation any loss incurred in liquidating or employing deposits from
third parties (but not loss of profit) for the period after such payment or
27
non-borrowing. A certificate of such Bank setting forth the amounts reasonably
necessary so to reimburse it in respect of any loss shall be conclusive and
binding absent manifest error.
3.2 Increased Costs. (a) If after the date hereof, any applicable
---------------
law, rule or regulation or any change therein or in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof or compliance
by any Bank (or its Lending Office) with any request or directive (whether or
not having the force of law) of any such authority, central bank or comparable
agency, whether or not having the force of law, shall impose, modify or deem
applicable:
(i) any reserve (including, without limitation, any imposed by the
Board of Governors of the Federal Reserve System), special deposit, compulsory
loan or similar requirements against assets, commitments or deposits or other
liabilities with, of or for the account of, or credit extended by, or any
acquisition of funds by or for the account of any Bank or its Lending Office or
the offshore interbank market or any other condition affecting its obligations
to make, maintain or fund the Loans to the Obligors hereunder;
(ii) any capital or similar requirements against (or against any class
of or change in or the amount of) assets or liabilities of, or commitments,
Letters of Credit, or Accepted Time Drafts, participations therein or extensions
of credit by, such Bank;
each Bank which is so affected shall give prompt notice to Borrower describing
such reserves or requirements at least four (4) Business Days prior to the date
such Bank will begin to implement such additional charges with respect to the
Obligors. If the result of any of the foregoing is to increase the cost or
reduce the profit to such Bank (or its Lending Office or any corporation
controlling a Bank) under this Agreement by an amount deemed by such Bank to be
material, then, within fifteen (15) days after written demand by such Bank, the
Obligors will pay to such Bank such additional amount or amounts as will
compensate such Bank for such increased cost incurred or reduction in profit
suffered by such Bank. Such Bank agrees to use reasonable efforts (consistent
with legal and regulatory restrictions) to designate a different Lending Office
if such designation will avoid the need for, or reduce the amount of, such
compensation and will not be otherwise disadvantageous to such Bank in the sole
discretion of such Bank. A certificate of such Bank setting forth the basis for
determining such additional amount or amounts necessary to compensate the Bank
shall be conclusive in the absence of manifest error.
(b) Without limiting the effect of the foregoing (but without
duplication), upon any Bank's prior written request, the Obligors shall pay to
such Bank on the last day of each Interest Period, so long as such Bank may be
required to maintain reserves against "eurocurrency liabilities" under
Regulation D (as at any time amended) of the Board of Governors of the Federal
Reserve System, as additional interest on the unpaid principal amount of each
Eurodollar Loan by such Bank outstanding during such Interest Period, an
additional amount (determined by such Bank and notified to Borrower in writing)
up to but not exceeding such amount as would, together with payments of interest
on such Eurodollar Loan for such Interest Period, result in the receipt by such
Bank of total interest on such Eurodollar Loan, for such Interest Period at a
rate determined by such Bank to be equal to the sum of:
28
(i) the Eurodollar Rate divided by (a) 1 minus (b) the rate
(expressed as a decimal) of such reserves required by Regulation D, plus (ii)
the Applicable Margin.
In determining the additional amount payable for an Interest Period
pursuant to this Section, such Bank shall take into account any transitional
adjustment or phase-in provisions of such reserve requirements applicable during
such Interest Period, which would reduce the reserve requirement otherwise
applicable to eurocurrency liabilities during such Interest Period; provided,
--------
however, each Bank in its sole discretion may determine the allocation of
-------
reserve requirements to its Eurodollar Loans. Each such determination made by
such Bank, and each such notification by such Bank to Borrower under this
Section, shall be conclusive as to the matters set forth therein in the absence
of manifest error.
3.3 Taxes. All payments or reimbursements under this Agreement and
-----
any instrument or agreement required hereunder shall be made without set-off or
counterclaim and free and clear of and without deduction for any and all present
and future Taxes, including, without limitation any withholding Taxes payable
with respect to interest payments made by White Holding Mexico. Each Obligor
agrees to cause all such Taxes to be paid on behalf of any Bank or
Administrative Agent directly to the appropriate governmental authority. If an
Obligor is legally prohibited from complying with this subsection, payments due
to such Bank or Administrative Agent under this Agreement and any instrument or
agreement required hereunder shall be increased so that, after provisions for
Taxes and all Taxes on such increase, the amounts received by such Bank or
Administrative Agent will be equal to the amounts required under this Agreement
and any instrument or agreement required hereunder as if no Taxes were due on
such payments. Each Obligor shall indemnify each Bank and Administrative Agent
for the full amount of Taxes payable by such Bank or Administrative Agent and
any liabilities (including penalties, interest and expenses) arising from such
Taxes within thirty (30) days from any written demand by such Bank. Each Obligor
shall provide evidence that all applicable Taxes have been paid to the
appropriate taxing authorities by delivering to Administrative Agent official
tax receipts or notarized copies or other evidence thereof satisfactory to
Administrative Agent, within ninety (90) days after the due date for such Tax
payment. Such Bank agrees to use reasonable efforts (consistent with legal and
regulatory restrictions) to designate a different Lending Office if such
designation will avoid the need for, or reduce the amount of, such payment or
reimbursement and will not be otherwise disadvantageous to such Bank in the sole
discretion of such Bank.
3.4 Prepayment. Upon the irrevocable written notice of the Obligor
----------
to which a Loan has been made, received by Administrative Agent by 11:00 a.m.
New York time on the date of the prepayment of a Reference Rate Loan and at
least three (3) Eurodollar Banking Days prior to the prepayment of a Eurodollar
Loan, such Obligor may prepay any Eurodollar Loan or Reference Rate Loan; but
such prepayment shall be in an amount of at least One Million Dollars
($1,000,000) or multiple integrals of One Hundred Thousand Dollars ($100,000) in
excess thereof unless the entire outstanding principal amount of the Loans is
being prepaid. The notice of prepayment shall specify the date of the
prepayment, the amount of the prepayment and the Loan to be prepaid. Each such
prepayment shall be made on the date specified and, in the case of a prepayment
of any Eurodollar Loan shall be accompanied by the payment of accrued interest
on the amount prepaid. Subject to compliance with the foregoing procedures,
Reference Rate Loans may be prepaid at any time without cost or penalty of any
kind. If an Obligor elects
29
to prepay a Eurodollar Loan or to convert all Eurodollar Loans simultaneously in
connection with an increase in the Total Commitment pursuant to Section 11.21,
such Obligor shall, on demand by each Bank, pay such Bank the amount (if any) by
which (a) the additional interest which would have been payable on the amount
prepaid on such Bank's portion of such Loan had it not been paid until the last
day of the Interest Period of such Loan exceeds (b) the interest which would
have been recoverable by such Bank by placing such prepaid amount on deposit in
the offshore Dollar interbank markets for a period starting on the date on which
it was prepaid and ending on the last day of the Interest Period for such Loan.
3.5 Pro Rata Reduction of Commitments by Borrower. Borrower may, upon
---------------------------------------------
five (5) days' prior written notice (which notice shall be irrevocable) to Banks
through Administrative Agent, reduce the Total Commitment on a pro rata basis
among the Banks in an aggregate amount up to the amount by which the Total
Commitment exceeds the Total Utilization of Commitments at the time of such
proposed reduction. Such a reduction shall be in an amount of at least Five
Million Dollars ($5,000,000) or multiple integrals in excess thereof. After the
effective date of such reduction, the Banks' obligations under this Agreement
shall be based on the reduced Commitments.
3.6 Reduction of One Bank's Commitment by Borrower. If the amount of
----------------------------------------------
any payment to be made to or for the account of any Bank is increased under
Section 3.3 or any Bank makes a claim under Section 3.2 then, so long as no
Event of Default then exists or would result therefrom:
(a) Borrower may, within sixty days after the notice thereof and by
not less than five Business Days' written notice to Administrative Agent, cancel
such Bank's Commitment, whereupon such Bank shall cease to be obligated to
participate in further Loans hereunder and its Commitment shall be reduced to
the amount of its outstanding Loans until such Loans are repaid by the Obligors
either on the Principal Repayment Date for such Loans or pursuant to Section
3.6(b), at which time such Bank's Commitment shall be reduced to zero; and
(b) if Borrower cancels such Bank's Commitment pursuant to clause (a)
above and if Borrower so elects by written notice to Administrative Agent given
at the same time as the notice referred to in clause (a) above, the Obligors
shall prepay such Bank's portion of each outstanding Loan together with any
accrued interest thereon plus all costs and expenses (including broken funding
costs in connection with the re-lending, re-borrowing, funding or other
employing of funds) incurred by such Bank as a result of such cancellation or
prepayment on a date other than the Principal Repayment Date for such Loan.
3.7 Notice of Reductions. Each notice of reduction or prepayment
--------------------
given pursuant to Section 3.4, 3.5 or 3.6 shall be irrevocable, shall specify
the date upon which such reduction or prepayment is to be made and, in the case
of a notice of prepayment, shall obligate the Obligors to make such prepayment
on such date. Borrower may not give a notice of reduction of a part of the
Commitment pursuant to Section 3.6 at any time prior to the date so specified in
any previous such notice.
3.8 Designation of Replacement Bank. If the Commitment of any Bank
-------------------------------
is cancelled by Borrower pursuant to Section 3.6 or if any Bank terminates its
Commitment with
30
respect to Eurodollar Loans pursuant to Section 4.2, Borrower, with the consent
of Administrative Agent, may designate an Eligible Assignee (or, if it deems
appropriate, more than one Eligible Assignee) acceptable to Administrative Agent
to act as a Bank hereunder and upon execution of an Assignment and Acceptance by
such Eligible Assignee, such Eligible Assignee shall be deemed a Bank hereunder
to the same extent as if it were a signatory hereto and, thereafter, such
Eligible Assignee shall for all purposes be considered a "Bank" hereunder;
provided that the Commitment assigned to the new Bank thereby shall not exceed
--------
the Commitment of the replaced Bank.
3.9 Effect of Reduction of Commitment. If, at any time:
---------------------------------
(i) the Commitment of any Bank is reduced to zero in accordance with
the terms of this Agreement;
(ii) all indebtedness and other amounts owed to such Bank by the
Obligors hereunder or in connection herewith have been satisfied in full; and
(iii) such Bank is under no further actual or contingent obligation
hereunder, then such Bank shall cease to be a party hereto and a Bank for the
purposes hereof; provided, however, that the obligations of the Obligors under
-------- -------
Sections 2.15, 2.16, 3.1, 3.2, 3.3, 11.13, 11.14 and 11.15 shall survive the
cancellation of the Commitment and the termination of this Agreement.
3.10 Accrued Fees. On the date of the cancellation of any portion of
------------
the Total Commitment in accordance with Section 3.5 or of any Bank's Commitment
under Section 3.6, all accrued Facility Fees for such portion of the Total
Commitment or of such Bank's Commitment shall be paid in full by Borrower.
3.11 Survival. The agreements and obligations of Borrower in this
--------
Section 3 shall survive the termination of this Agreement.
SECTION 4
---------
CHANGE IN CIRCUMSTANCES AFFECTING LOANS
---------------------------------------
4.1 Inability to Determine Eurodollar Rate. If any Reference Bank
--------------------------------------
determines (which determination shall be made in Good Faith and shall be
conclusive and binding upon the Obligors) that (i) by reason of circumstances
then affecting the Eurodollar interbank market, adequate and reasonable means do
not or will not exist for ascertaining the interest rate applicable to any
Eurodollar Loans, or (ii) Dollar deposits in the relevant amounts and for the
relevant Interest Period are not available to the Banks in the Eurodollar
interbank market, then it shall notify the Administrative Agent who shall
forthwith give written notice of such determination to Borrower and each Bank at
least one (1) Business Day prior to the first day of any Interest Period so
affected; whereupon, until Administrative Agent shall notify Borrower that the
circumstances giving rise to such suspension no longer exist, (x) the
obligations of the Banks to make Eurodollar Loans shall be suspended and (y) the
Obligors shall repay in full, without premium or penalty, the then outstanding
principal amount of the Eurodollar Loans, together with accrued interest
thereon, on the last day of the then current Interest Period pursuant
31
to the next sentence. Unless an Obligor notifies Administrative Agent to the
contrary within one (1) Business Day after receiving a notice from
Administrative Agent pursuant to this Section, an Obligor shall, concurrently
with repaying the Eurodollar Loans pursuant to this Section, be deemed
automatically without any further notice to Administrative Agent or the Banks to
have requested and received Reference Rate Loans in an equal principal amount
from the Banks, the proceeds of which are deemed to have been used to repay the
other Loans.
4.2 Illegality. If, after the Effective Date, the introduction of or
----------
any change in any applicable law, rule or regulation or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof or compliance by any Bank with any
request or directive (whether or not having the force of law) of any such
authority shall make it unlawful or impossible for such Bank (or its Lending
Office) to make, maintain or fund its Eurodollar Loans, such Bank shall
forthwith give written notice thereof to Administrative Agent and to Borrower.
Before giving any notice pursuant to this Section, such Bank agrees to use
reasonable efforts (consistent with legal and regulatory restrictions) to
designate a different Lending Office if such designation will avoid the need for
giving such notice and will not be otherwise disadvantageous to such Bank in the
sole judgment of such Bank. Upon receipt of such notice (i) if such Bank has
received a request with respect to Eurodollar Loans and has not yet made such
Loan, a Reference Rate Loan shall be deemed to have been designated without any
further notice; (ii) all Loans which would otherwise be made by such Bank as
Eurodollar Loans shall be made instead as Reference Rate Loans; and (iii) the
Obligor to which such Eurodollar Loans were made shall prepay in full, without
premium or penalty, the then outstanding principal amount of such Bank's
Eurodollar Loans, together with accrued interest, on either (x) the last day of
the then-current Interest Period if such Bank may lawfully continue to fund and
maintain such Eurodollar Loans, to such day or (y) immediately if such Bank may
not lawfully continue to fund and maintain such Eurodollar Loans to such day
together with an amount, if any, calculated as set forth in the last sentence of
Section 3.4. Concurrently with prepaying each such Eurodollar Loan such Obligor
shall borrow a Reference Rate Loan from such Bank in an amount equal to the
principal amount of such Bank's Eurodollar Loans, the proceeds of which are
deemed to have been used to repay such Bank's Eurodollar Loans. If circumstances
subsequently change so that such Bank is not further affected, and no Eligible
Assignee has been appointed pursuant to Section 3.8, such Bank shall so notify
Borrower and Administrative Agent and such Bank's obligation to make and
continue Eurodollar Loans shall be reinstated upon written request of Borrower.
SECTION 5
---------
CONDITIONS PRECEDENT
--------------------
5.1 Initial Conditions Precedent. The obligation of Banks to make
----------------------------
the initial Loan hereunder is subject to the condition that on or before the
Effective Date, (a) there shall have been delivered to Administrative Agent with
counterparts for each Bank and in form and substance satisfactory to
Administrative Agent, each dated the Effective Date unless otherwise indicated:
32
(i) The Guaranties, duly executed and delivered by each of the
Guarantors;
(ii) Certified copies of the resolutions of the Board of Directors
of each Obligor approving this Agreement, and of all documents evidencing other
necessary corporate action and governmental approvals, if any, with respect to
this Agreement;
(iii) A certificate of the Secretary or an Assistant Secretary of
each Obligor certifying the names and true signatures of the officers of such
Obligor authorized to sign this Agreement and the other documents to be
delivered hereunder;
(iv) Certified copies of each Obligor's Certificate of Incorporation
or Deed of Incorporation, together with a good standing certificate from its
jurisdiction of incorporation, each to be dated a recent date prior to the
Effective Date;
(v) Copies of each Obligor's Memorandum of Association and Articles
of Incorporation or Articles of Association and Extract from Commercial
Register, certified as of the Effective Date by its Secretary or an Assistant
Secretary;
(vi) Favorable opinions of (A) Xxxxxx Xxxxxxxx & Company, Bahamas
counsel for the Borrower, substantially in the form of Exhibit F-1 hereto, (B)
Trenite Van Doorne, counsel for White Holding, substantially in the Form of
Exhibit F-2 hereto, (C) Xxxxxx, Xxxxxx & Xxxxxxxxx, New York counsel for the
Obligors, substantially in the form of Exhibit G hereto, (D) the Assistant
General Counsel of Xxxxxx, substantially in the form of Exhibit H-1 hereto, (E)
counsel for each Guarantor (other than Xxxxxx), substantially in the form of
Exhibit H-2 hereto and (F) counsel for White Holding Mexico, substantially in
the form of Exhibit F-3;
(vii) A favorable opinion of O'Melveny & Xxxxx LLP, special counsel
for the Administrative Agent, substantially in the form of Exhibit I hereto;
(viii) Certified copies of the resolutions of the Board of Directors
of each Guarantor, approving the Guaranty to which it is a party, and of all
documents evidencing other necessary corporate action and governmental
approvals, if any, with respect to such Guaranty;
(ix) A certificate of the Secretary or an Assistant Secretary of
each Guarantor (or, in the case of a foreign Guarantor, a similar officer for
companies in such foreign country) certifying the names and true signatures of
the officers of such Guarantor authorized to sign the Guaranty to which it is a
party and the other documents to be delivered hereunder;
(x) Certified copies of the Certificate of Incorporation of each
Guarantor above, together with good standing certificates from the jurisdiction
of its incorporation and its principal place of business, each to be dated a
recent date prior to the Effective Date (or, with respect to foreign Guarantors,
such appropriate similar documents for companies in such foreign country);
(xi) Copies of the Bylaws of each Guarantor (or, with respect to
Xxxxxxx Investments LLC, its Memorandum of Association and Articles of
Association), certified as of the Effective Date by its Secretary or an
Assistant Secretary (or, in the case of Xxxxxxx Investments LLC, a similar
officer for companies in the Cayman Islands);
33
(xii) a promissory note payable to Deutsche Bank AG New York and/or
Cayman Islands Branch from each of the Obligors; and
(xiii) Such other instruments, information or documents as
Administrative Agent or Majority Banks may reasonably request.
(b) Borrower shall have paid (i) to Administrative Agent, for
distribution (as appropriate) to Administrative Agent and the Arranger the fees
and expenses payable on the Effective Date pursuant to the Letter Agreement and
(ii) to O'Melveny & Xxxxx LLP its fees and expenses payable pursuant to Section
11.13 hereof through the Effective Date.
(c) Administrative Agent shall have received an officers'
certificate from Borrower, dated the Effective Date, in form and substance
satisfactory to Administrative Agent, to the effect that the representations and
warranties in Section 6 hereof are true, correct and complete in all material
respects on and as of the Effective Date to the same extent as though made on
and as of that date.
(d) Administrative Agent shall have received a certificate, signed
by the Treasurer or an Assistant Treasurer of Xxxxxx dated the Effective Date
certifying that (i) since March 31, 2000 there has been no change in Xxxxxx'
financial condition or results of operations which constitutes a Material
Change; and (ii) to the knowledge of Xxxxxx, that there is no pending or
threatened litigation, proceeding or investigation that is reasonably likely to
have a material adverse effect on the properties, business, operations or
conditions (financial or otherwise) of the Borrower or of Xxxxxx or that
purports to affect this Agreement or the transactions contemplated hereby.
(e) All corporate and other proceedings taken or to be taken in
connection with the transactions contemplated hereby and all documents
incidental thereto not previously found acceptable by Administrative Agent,
acting on behalf of Banks, and its counsel shall be satisfactory in form and
substance to Administrative Agent and such counsel, and Administrative Agent and
such counsel shall have received all such counterpart originals or certified
copies of such documents as Administrative Agent may reasonably request.
5.2 Conditions Precedent to Loans. The obligation of Banks to
-----------------------------
disburse each Loan (including the first Loan) is subject to the following
conditions and by communicating a Loan Request the Obligors, jointly and
severally, are deemed to certify that: (a) the representations and warranties
contained in this Agreement and any other documents delivered pursuant hereto
are true and correct in all material respects on the date of such Loan Request;
(b) the financial statements delivered to Administrative Agent by Borrower
pursuant to Section 7.5 on the date most nearly preceding the Loan Request
present fairly the financial position and results of operation and changes in
financial position of Borrower and its consolidated Subsidiaries as at the end
of, and for the fiscal period to which such statements relate, (subject, in the
case of unaudited financial statements to year end adjustments) and there has
been no Material Change since the date of such financial statements; (c) to the
best knowledge of Borrower, there has been no change in Xxxxxx' financial
condition or results of operations which constitutes a Material Change; (d) to
the best knowledge of Borrower, there is no pending or threatened litigation,
proceeding or investigation that Borrower believes is reasonably likely to
34
have a material adverse effect on the properties, business, operations
(financial or otherwise) of Borrower or of Xxxxxx or that purports to affect
this Agreement, the Xxxxxx Guaranty or the transactions contemplated hereby or
thereby; (e) no Event of Default or Unmatured Event of Default has occurred and
is continuing except such Events of Default or Unmatured Events of Default as
have been expressly waived by or on behalf of the Banks; and (f) the "Total
Utilization of Commitments", as defined in the Existing Credit Agreement equals
90% of the aggregate amount of the "Total Commitments", as defined in the
Existing Credit Agreement.
5.3 Conditions to Letter of Credit. The obligation of an Issuing
------------------------------
Bank to issue any Letter of Credit hereunder is subject to the following
conditions precedent:
(a) On or before the date of issuance of such Letter of Credit,
Administrative Agent and the applicable Issuing Bank shall have received, in
accordance with the provisions of subsection 2.11(b)(i), an originally executed
L/C Request and an originally executed application for issuance of letter of
credit in the standard form then utilized by the applicable Issuing Bank, in
each case signed by the chief executive officer, the chief financial officer or
the treasurer of the Obligor requesting such Letter of Credit or by any
executive officer of such Obligor designated by any of the above-described
officers on behalf of such Obligor in a writing delivered to Administrative
Agent, together with all other information specified in subsection 2.11(b)(i)
and such other documents or information as the applicable Issuing Bank may
reasonably require in connection with the issuance of such Letter of Credit.
(b) On the date of issuance of such Letter of Credit, all conditions
precedent described in Section 5.2 shall be satisfied to the same extent as if
the issuance of such Letter of Credit were the making of a Loan and the date of
issuance of such Letter of Credit were a Borrowing Date.
Each Issuing Bank shall be entitled to assume that the conditions
precedent set forth in Sections 5.3(a) and (b) have been satisfied unless such
Issuing Bank has received written notice from Administrative Agent to the
contrary.
SECTION 6
---------
REPRESENTATIONS AND WARRANTIES
------------------------------
6. Borrower (and, with respect to a representation or warranty
relating to a Designated Subsidiary, such Designated Subsidiary jointly and
severally) represents and warrants as follows:
6.1 Authority of Borrower. Borrower (a) is an international business
---------------------
company duly organized and existing under the laws of the Bahamas, with its
principal place of business in the Bahamas, (b) has the corporate power to own
its property and carry on its business as now being conducted, (c) is duly
qualified and authorized to do business, and is in good standing in every state,
country or other jurisdiction where the failure to be so qualified, authorized
and in good standing would have a material adverse effect on Borrower, (d) has
full power and authority to borrow the sums provided for in this Agreement, to
execute, deliver and perform this Agreement and any instrument or agreement
required hereunder, and to perform and observe the terms and provisions hereof
and thereof, (e) has taken all corporate action on the part of
35
Borrower, its directors or stockholders, necessary for the authorization,
execution, delivery and performance of this Agreement, and any instrument or
agreement required hereunder on the date hereof, (f) requires no consent or
approval of any trustee or holder of any indebtedness or obligation of Borrower
to enter into, deliver or perform its obligations under this Agreement and the
Notes, and (g) requires no consent, permission, authorization, order or license
of any governmental authority in connection with the execution and delivery and
performance of this Agreement and any instrument or agreement required
hereunder, or any transaction contemplated hereby, except as may have been
obtained and certified copies of which have been delivered to Banks through
Administrative Agent.
6.2 Binding Obligations. This Agreement is the legal, valid and
-------------------
binding obligation of Borrower and each Designated Subsidiary, enforceable
against each of them in accordance with its terms, and any instrument or
agreement required hereunder, when executed and delivered, will be similarly
valid, binding and enforceable.
6.3 Incorporation of Subsidiaries. Each Subsidiary of Borrower is a
-----------------------------
company duly organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation and is duly licensed or qualified as a
foreign corporation in all jurisdictions where the failure to be so qualified,
authorized and in good standing would have a material adverse effect on Borrower
and its Subsidiaries taken as a whole.
6.4 No Contravention. There is no charter, by-law, or capital stock
----------------
provision of Borrower or any Designated Subsidiary and no provision of any
indenture or material agreement, written or oral, to which Borrower or any
Designated Subsidiary is a party or under which Borrower or such Designated
Subsidiary is obligated, nor is there any statute, rule or regulation, or any
judgment, decree or order of any court or agency binding on Borrower or any
Designated Subsidiary which would be contravened by the execution, delivery and
performance of this Agreement, or any instrument or agreement required
hereunder, or by the performance of any provision, condition, covenant or other
term hereof or thereof.
6.5 Notices. Except as previously disclosed in writing to
-------
Administrative Agent, no event has occurred which would require Borrower or any
Designated Subsidiary to notify Administrative Agent and the Banks pursuant to
Section 7.3 hereof.
6.6 Financial Statements. All financial statements furnished by
--------------------
Borrower to Banks present fairly the financial position and results of operation
and changes in financial position of Borrower and its consolidated Subsidiaries
as at the end of, and for the fiscal period to which such statements relate,
(subject to normal year-end adjustments), and such financial statements have
been prepared in accordance with GAAP. Since the date of the audited financial
statements most recently furnished by Borrower to Banks, there has been no
change in Borrower's consolidated financial condition or results of operations
sufficient to impair Borrower's ability to repay the Loans in accordance with
the terms hereof. Neither Borrower nor any Subsidiary had any contingent
obligations, liabilities for taxes or other outstanding financial obligations at
that date which are material in the aggregate, except as disclosed in such
statements.
36
6.7 ERISA. Borrower, any of its Subsidiaries or any other ERISA
-----
Affiliate has never had, does not have, and will not have, any Plans.
6.8 Use of Proceeds; Margin Regulations; Investment Act. Neither
---------------------------------------------------
Borrower nor any Designated Subsidiary is engaged principally, or as one of its
important activities, in the business of extending credit for the purposes of
purchasing or carrying any "margin stock" within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System. No portion of the
proceeds of any borrowing under this Agreement has been or will be used by
Borrower or any Designated Subsidiary or any of their respective Subsidiaries in
any manner that might cause the borrowing or the application of such proceeds to
violate Regulation T, Regulation U or Regulation X of the Board of Governors of
the Federal Reserve System in effect on the date or dates of such borrowing and
such use of proceeds. Neither Borrower nor any of its Subsidiaries is an
"investment company" within the meaning of the Investment Company Act of 1940.
6.9 Taxes. Each of Borrower and the Designated Subsidiaries has
-----
filed all federal, state and foreign tax returns which to the knowledge of the
financial officers of Borrower and the Designated Subsidiaries are required to
have been filed, and has paid prior to delinquency all taxes that have become
due pursuant to said returns or pursuant to any assessment, except as are being
contested in Good Faith by appropriate proceedings and as to which adequate
reserves have been provided on the books of Borrower and the Designated
Subsidiaries in accordance with GAAP.
6.10 Insurance. Borrower and its Subsidiaries will obtain and
---------
maintain insurance with responsible insurance companies, in such amounts and
against such risks as is customarily carried by owners of similar businesses and
property, to the extent such insurance is reasonably available at commercially
reasonable rates, and it will furnish Administrative Agent, upon written
request, with full information as to the insurance carrier; provided, however,
-------- -------
that Borrower and its Subsidiaries may self insure to the extent they reasonably
deem prudent.
6.11 Liens. The properties and assets of Borrower and its
-----
Subsidiaries, real, personal and mixed, are not subject to any Liens, except for
Liens permitted by this Agreement.
6.12 Absence of Litigation; Litigation Description. No actions,
---------------------------------------------
suits, investigations, litigation or proceedings are pending or, to the
knowledge of Borrower, threatened against or affecting Borrower or any of its
Subsidiaries or the properties of Borrower or any such Subsidiary before any
court, arbitrator or governmental agency, department, commission, board, bureau
or instrumentality, domestic or foreign, (a) that could reasonably be expected
to result in a Material Change, or (b) which purports to affect the legality,
validity or enforceability of this Agreement, any of the Guaranties or any other
document delivered hereunder.
6.13 Authorizations and Approvals. No authorization or approval
----------------------------
(including exchange control approval) or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required for the
due execution, delivery and performance by the Borrower and each Designated
Subsidiary of this Agreement except for such authorizations,
37
approvals or filings which have been duly obtained or made and are in full force
and effect on the Effective Date.
6.14 Taxes. There is no tax, levy, impost, deduction, charge or
-----
withholding imposed by the Bahamas, The Netherlands or the United Mexican States
or any political subdivision thereof either (i) on or by virtue of the execution
or delivery of this Agreement or any other document to be furnished hereunder or
(ii) on any payment to be made by the Borrower or a Designated Subsidiary
pursuant to this Agreement, other than withholding taxes payable in respect of
payment of interest by White Holding Mexico.
6.15 Enforcement. This Agreement is in proper legal form under the
-----------
laws of the Bahamas for the enforcement thereof against the Borrower under the
laws of the Bahamas; and to ensure the legality, validity, enforceability or
admissibility in evidence of this Agreement in the Bahamas, it is not necessary
that this Agreement or any other document be filed or recorded with any court or
other authority in the Bahamas or that any stamp or similar tax be paid on or in
respect of this Agreement or any other document to be delivered hereunder. This
Agreement is in proper legal form under the laws of The Netherlands for the
enforcement thereof against White Holding under the laws of The Netherlands; and
to ensure the legality, validity, enforceability or admissibility in evidence of
this Agreement in The Netherlands, it is not necessary that this Agreement or
any other document be filed or recorded with any court or other authority in The
Netherlands or that any stamp or similar tax be paid on or in respect of this
Agreement or any other document to be delivered hereunder. This Agreement is in
proper legal form under the laws of the United Mexican States for the
enforcement thereof against White Holding Mexico (provided that, for enforcement
in the United Mexican States, compliance with certain procedural requirements
and a Spanish translation are necessary) and to ensure the legality, validity or
admissibility in evidence of this Agreement in the United Mexican States, it is
not necessary that this Agreement or any other document be filed or recorded
with any court or other authority in the United Mexican States, other than an
official Spanish translation, or that any stamp or similar tax be paid on or in
respect of this Agreement or any other document to be delivered hereunder.
6.16 Authority of Designated Subsidiaries. Each Designated Subsidiary
------------------------------------
(a) is a company duly organized and existing under (y) in the case of White
Holding, the laws of the Netherlands, with its principal place of business in
The Netherlands, and (z) in the case of White Holding Mexico, the laws of the
United Mexican States, with its principal place of business in the United
Mexican States, (b) has the corporate power to own its property and carry on its
business as now being conducted, (c) is duly qualified and authorized to do
business, and is in good standing in every state, country or other jurisdiction
where the failure to be so qualified, authorized and in good standing would have
a material adverse effect on Borrower and its Subsidiaries, taken as a whole,
(d) has full power and authority to borrow the sums provided for in this
Agreement, to execute, deliver and perform this Agreement and any instrument or
agreement required hereunder, and to perform and observe the terms and
provisions hereof and thereof, (e) has taken all corporate action on the part of
such Designated Subsidiary, its directors or stockholders, necessary for the
authorization, execution, delivery and performance of this Agreement, and any
instrument or agreement required hereunder on the date hereof, (f) requires no
consent or approval of any trustee or holder of any indebtedness or obligation
of such Designated Subsidiary to enter into, deliver or perform its obligations
under this Agreement and
38
the Notes, and (g) requires no consent, permission, authorization, order or
license of any governmental authority in connection with the execution and
delivery and performance of this Agreement and any instrument or agreement
required hereunder, or any transaction contemplated hereby, except as may have
been obtained and certified copies of which have been delivered to Banks through
Administrative Agent.
SECTION 7
---------
AFFIRMATIVE COVENANTS OF BORROWER
---------------------------------
7. Borrower covenants and agrees that so long as the credit hereby
granted shall remain available in whole or in part or until the full and final
payment of all indebtedness incurred hereunder (including with respect to
Accepted Time Drafts) and the cancellation or expiration of all Letters of
Credit, unless Majority Banks waive compliance in writing:
7.1 Use of Proceeds of Loans. It will, and will cause each
------------------------
Designated Subsidiary to, use the proceeds of the Loans made by Banks to
Borrower and such Designated Subsidiary hereunder to finance (i) the purchase of
direct-to-home IRD decoder boxes, disk antennae and related goods for satellite
television in Mexico, the Caribbean, or a country located in Central America or
South America, the payment of duties, value added taxes and other costs
associated with the such purchase and the payment of fees, commissions and
expenses incurred therewith (in compliance with all applicable legal and
regulatory requirements), (ii) working capital of LOCs up to a maximum of
$45,000,000; and (iii) the payment of interest and fees due under this
Agreement. Each Obligor, as a non-bank entity located outside the United
States, by execution of this Agreement, is deemed to have received notice to the
effect that it is the policy of the Board of Governors of the Federal Reserve
System that extensions of credit by international banking facilities may be used
only to finance the non-U.S. operations of a customer (or its foreign
affiliates) located outside the United States. Each Obligor hereby acknowledges
that the proceeds of Loans made to such Obligor from the Banks that are such
international banking facilities will be used solely to finance its operations
outside the United States or that of its foreign affiliates.
7.2 Management of Business. It will manage its business and conduct
----------------------
its affairs such that the representations and warranties contained in Sections
6.1 through 6.3 and 6.7 through 6.10 remain true and correct in all material
respects at all times during the Availability Period.
7.3 Notice of Certain Events. It will, and it will cause each of its
------------------------
Subsidiaries to, give prompt written notice to Administrative Agent (who shall
promptly notify the Banks) of: (a) all Events of Default or Unmatured Events of
Default under any of the terms or provisions of this Agreement, (b) any event of
default under any other agreement, contract, indenture, document or instrument
entered, or which may be entered, into by it that could, if settled unfavorably,
result in a Material Change, (c) all litigation, arbitration or administrative
proceedings involving Borrower or any of its Subsidiaries which could in the
reasonable opinion of Borrower be expected to result in a Material Change; (d)
any other matter which has resulted in, or might in the reasonable opinion of
Borrower result in, a Material Change; and (e) any material change in Borrower's
ownership or ownership structure.
39
7.4 Records. It will, and it will cause each of its Subsidiaries to,
-------
keep and maintain full and accurate accounts and records of its operations
according to GAAP and will permit Administrative Agent, and its designated
officers, employees, agents and representatives, to have access thereto and to
make examination thereof at all reasonable times, to make audits, and to inspect
and otherwise check its properties, real, personal and mixed; provided, however,
-------- -------
that such examination and access shall be in compliance with security and
confidentiality requirements of all governmental authorities and, subject to
Section 11.15, Borrower's corporate policies.
7.5 Information Furnished. It will furnish to Banks and
---------------------
Administrative Agent:
(a) Within sixty (60) days after the close of each quarter, except
for the last quarter of each fiscal year, its consolidated balance sheet as of
the close of such quarter and its consolidated profit and loss statement and
cash flow statement for that quarter and for that portion of the fiscal year
ending with such quarter, all prepared in accordance with GAAP, and all
certified by its chief financial officer as presenting fairly the financial
position and results of operations and changes in financial position of Borrower
and its consolidated Subsidiaries as at the end of, and for the fiscal period to
which such statements relate, subject to normal year-end adjustments.
(b) Within one hundred twenty (120) days after the close of each
fiscal year, a complete copy of its annual financial statements, which
statements shall include at least its consolidated balance sheet as of the close
of such fiscal year and its consolidated profit and loss statement and cash flow
statement for such fiscal year, prepared by Deloitte & Touche LLP (or such other
independent certified public accountants of recognized international standing
selected by Borrower) in accordance with GAAP applied on a basis consistent with
that of the previous year, and which statements shall include the opinion of
such accountants, such opinion not to be qualified or limited because of any
restricted or limited nature of examination made by such accountants or because
of a going concerns qualification.
(c) Within sixty (60) days after the close of each quarter, except
for the last quarter of each fiscal year, (and within one hundred twenty (120)
days after the close of each fiscal year) its certificate executed by Borrower's
chief financial officer that (i) the representations and warranties set forth in
Section 6 are true and correct in all material respects; (ii) there has been no
Material Change since the date of the financial statements delivered to
Administrative Agent pursuant to Section 7.5 on the date most nearly preceding
the certificate; and (iii) no Event of Default or Unmatured Event of Default has
occurred and is continuing except such Events of Default or Unmatured Events of
Default as have been expressly waived by or on behalf of the Banks.
(d) Such other information concerning its affairs as Administrative
Agent or the Majority Banks may reasonably request.
7.6 Execution of Other Documents. It will, and will cause each
----------------------------
Designated Subsidiary to, promptly, upon demand by Administrative Agent, execute
all such additional agreements, documents and instruments in connection with
this Agreement as Administrative Agent or Majority Banks may reasonably deem
necessary.
40
7.7 Administrative Agent's and Arranger's Fees. It will compensate
------------------------------------------
Administrative Agent and Arranger as set forth in the Letter Agreement.
7.8 Compliance with Law. It will, and will cause each of its
-------------------
Subsidiaries to, comply with the requirements of all applicable laws, rules,
regulations, and orders of any governmental or regulatory authority, a breach of
which would result in a Material Change, except where contested in Good Faith by
appropriate proceedings diligently pursued.
7.9 Maintenance of Properties, Etc. It will, and will cause each of
-------------------------------
its Subsidiaries, to maintain and preserve all of its properties with respect to
which failure to so maintain and preserve would have a Material Change, unless
permitted by Section 8.2.
SECTION 8
---------
NEGATIVE COVENANTS OF BORROWER
------------------------------
8. Borrower covenants and agrees that so long as the credit hereby
granted shall remain available in whole or in part or until the full and final
payment of all indebtedness incurred hereunder (including with respect to
Accepted Time Drafts) and the cancellation or expiration of all Letters of
Credit, unless Majority Banks waive compliance in writing:
8.1 Liens.
-----
(a) Borrower will not, nor will it permit any Subsidiary to, (i) sell
(with or without recourse) any of its accounts receivable or any asset
consisting of a loan, advance or capital contribution to any Person; or (ii)
issue, incur, guaranty, assume or permit to exist any Indebtedness or Hedging
Obligations secured by a Lien upon any property or assets of Borrower or any
Subsidiary or upon any shares of stock or Indebtedness or Hedging Obligations of
any Subsidiary (whether such property, assets, shares of stock or Indebtedness
or Hedging Obligations are now owned or hereafter acquired) without in any such
case effectively providing concurrently with the issuance, incurrence, guarantee
or assumption of any such Indebtedness or Hedging Obligations that the
Commitments and Loans and any other obligations of Borrower to the Banks
(together with, if Borrower shall so determine, any other Indebtedness or
Hedging Obligations of Borrower or such Subsidiary ranking equally with the
Commitments and Loans and such other obligations and then existing or thereafter
created) shall be secured equally and ratably with or prior to such Indebtedness
or Hedging Obligations by a Lien upon such property, assets, shares of stock or
indebtedness;
(b) The above restrictions shall not apply to Indebtedness or Hedging
Obligations of Borrower or any of its Subsidiaries secured by (1) Liens on
property, assets, shares of stock or indebtedness of any corporation existing at
the time such corporation becomes a Subsidiary; (2) Liens on fixed assets
existing at the time of acquisition of such fixed assets by Borrower or a
Subsidiary, or Liens to secure the payment of all or any part of the purchase
price of fixed assets upon the acquisition of such fixed assets by Borrower or a
Subsidiary or to secure any indebtedness incurred or guaranteed prior to, at the
time of, or within 180 days after, the later of the date of acquisition of such
property and the date such property is placed in service, for the purpose of
financing all or any part of the purchase price thereof, or Liens to secure any
indebtedness incurred or guaranteed for the purpose of financing the cost to
Borrower or a
41
Subsidiary of improvements to such acquired fixed assets; (3) Liens securing
indebtedness of a Subsidiary owing to Borrower or to another wholly-owned
Designated Subsidiary; (4) Liens on property of a corporation existing at the
time such corporation is merged or consolidated with Borrower or a Subsidiary
(in accordance with Section 8.2) or at the time of a sale, lease or other
disposition of the properties of a corporation as an entirety or substantially
as an entirety to Borrower or a Subsidiary; or (5) any extension, renewal or
replacement (or successive extensions, renewals or replacements) in whole or in
part of any Liens referred to in the foregoing sub-clauses (1) to (4),
inclusively; provided, however, that the principal amount of indebtedness
-------- -------
secured thereby shall not exceed the principal amount of indebtedness so secured
at the time of the incurrence or guarantee thereof and that such extension,
renewal or replacement shall be limited to all or a part of the property which
secured the Lien so extended, renewed or replaced (plus improvements on such
property); and
(c) Notwithstanding the provisions of Section 8.1(a) above, (i) the
Obligors may sell at par for cash (without recourse) to one or more of the
Guarantors, Finser Corporation or any shareholder of any LOC who is guaranteeing
the obligations of such LOC to such Obligor, all or any portion of one or more
of the promissory notes issued by any LOC or any Subsidiary of Borrower to the
order of an Obligor to evidence loans and advances made by an Obligor to such
LOC or to such Subsidiary of Borrower (individually a "LOC/Subsidiary Note" and
collectively the "LOC/Subsidiary Notes"), together with the rights of such
Obligor pursuant to any security agreements securing the applicable
LOC/Subsidiary Note so purchased (the "Associated Collateral Rights"), or if
less than the entire amount of a LOC/Subsidiary Note is purchased, the pro rata
portion of the Associated Collateral Rights securing the portion of the
LOC/Subsidiary Note so purchased; provided that Borrower shall apply or cause
--------
the application of the proceeds of any such sales of LOC/Subsidiary Notes to the
payment of principal or interest on the Loans or fees payable hereunder or to
payment of principal or interest on the Loans or fees payable under the Existing
Credit Agreement; and (ii) the Obligors may grant to the Guarantors, or any of
them, a second priority security interest (ranking pari passu with a security
interest granted to the Administrative Agent under the Existing Credit
Agreement) in the LOC/Subsidiary Notes and the Associated Collateral Rights,
provided that (A) Administrative Agent, on behalf of the Banks, shall have been
granted a first priority security interest in the LOC/Subsidiary Notes and
Associated Collateral Rights, (B) the LOC/Subsidiary Notes and documentation
evidencing the Associated Collateral Rights shall be held by a third party
collateral agent reasonably acceptable to Administrative Agent and the Majority
Banks, (C) the Guarantors holding such second priority security interest shall
not be entitled to exercise any rights or remedies with respect thereto
(including foreclosure remedies) until all Loans, interest thereon and all other
amounts payable under this Agreement shall have been indefeasibly paid in full;
(D) all documentation evidencing such first priority security interest of
Administrative Agent, such second priority security interest of the Guarantors,
the appointment and duties of such collateral agent and all other related
matters shall be in form and substance satisfactory to Administrative Agent and
the Majority Banks.
8.2 Mergers, Liquidations and Sales of Assets. Borrower will not,
-----------------------------------------
nor will it permit any of its Subsidiaries to (a) liquidate or dissolve or enter
into any consolidation, merger (except (i) mergers between a Subsidiary and
Borrower in which Borrower is the surviving corporation or (ii) the dissolution
of Dish Placement, provided that the assets and properties of Dish Placement are
transferred to Borrower or a Designated Subsidiary), partnership, joint
42
venture, syndicate, pool or other combination which results in a material change
in the nature of Borrower's business taken as a whole, unless in the case of a
consolidation or merger, Borrower is the surviving corporation, and after giving
effect to any such consolidation or merger no Event of Default or Unmatured
Event of Default has occurred and is continuing, or (b) (except assets conveyed,
sold or leased from one Subsidiary to another Designated Subsidiary or from any
Subsidiary to Borrower) convey, sell or lease all or the greater part of its
assets or business; provided that Borrower or any of its Subsidiaries may make
--------
loans and advances to LOC's in the ordinary course of business, or (c) (except
in a transaction which does not result in a Material Change), sell, lease,
transfer or assign any operating rights, licenses or franchises, other than in
connection with a dissolution of Dish Placement permitted hereunder.
8.3 Compliance with Margin Regulations. Borrower will not, and will
----------------------------------
not permit any Designated Subsidiary to, engage principally, or as one of its
important activities, in the business of extending credit for the purposes of
purchasing or carrying any "margin stock" within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System; and it will not, and will
not permit any Designated Subsidiary to, use the proceeds of any Loan for the
purpose, directly or indirectly, whether immediate, incidental or ultimate, (a)
to purchase or carry, within the meaning of such Regulation U, any such margin
stock or to extend credit to others for the purpose of purchasing or carrying
any such margin stock, or (b) in a manner which would violate, or result in a
violation of, Regulation T, U or X of the Board of Governors of the Federal
Reserve System.
8.4 Compliance with Law, etc. Borrower shall not (i) violate, or
-------------------------
allow any of its Subsidiaries to violate, any laws, ordinances, government rules
or regulations to which it is or may become subject or (ii) fail, or allow any
of its Subsidiaries to fail, to obtain or maintain any patents, trademarks,
service marks, trade names, copyrights, design patents, licenses, permits,
franchises or other governmental authorizations necessary to the ownership of
its property or the conduct of its business, in either case where such failure
could reasonably be expected to have a Material Change.
8.5 Change in Business. Borrower will not and will not permit any
------------------
Subsidiary to make, any material change in the nature or conduct of their
respective businesses as carried on at the date hereof.
8.6 Ownership of Designated Subsidiaries. Borrower will not fail to
------------------------------------
own 100% of the capital stock (other than directors' qualifying shares) of each
of the Designated Subsidiaries.
8.7 ERISA. Borrower will not and will not permit any Subsidiary or
-----
ERISA Affiliate to provide for or establish any Plan.
SECTION 9
---------
EVENTS OF DEFAULT
-----------------
9.1 Events of Default. If one or more of the following described
-----------------
Events of Default shall occur:
43
(a) Any Obligor shall default in the due and punctual payment of (i)
the principal of any Loan within two (2) Business Days of its due date, (ii) the
interest on any Loan or any fee required to be paid by any Obligor hereunder
within ten (10) Days of its due date, (iii) the amount required to be paid by
any Obligor to an Issuing Bank pursuant to the reimbursement obligations with
respect to any drawing under a Letter of Credit within two (2) Business Days of
the date a demand therefor is made as provided in Section 2.13(b)(ii), or (iv)
any other amount due from it hereunder within thirty (30) Business Days of its
due date; or
(b) (i) Borrower or any of its Subsidiaries shall fail to perform or
observe any of the terms, provisions, covenants, conditions, agreements or
obligations contained in this Agreement (other than those contained in Sections
7.2, 7.3 (except Section 7.3(a) as to notices of immaterial Unmatured Events of
Default), 7.4, 7.8, 7.9, and 8.1 through 8.7) and such failure shall continue
for more than twenty (20) days after written notice from Administrative Agent to
Borrower, Xxxxxx and the Guarantor Notice Agent of the existence and character
of such failure to perform or observe; or (ii) Borrower or any of its
Subsidiaries shall fail to perform or observe any of the terms, provisions,
covenants, conditions, agreements or obligations contained in Sections 7.2, 7.4,
7.8 and 7.9, and such failure is not remedied within thirty (30) days (such
period being the "Grace Period") after written notice from Administrative Agent
to Borrower, Xxxxxx and Guarantor Notice Administrative Agent of the existence
and character of such failure; provided, however, that if, upon the expiration
-------- -------
of the Grace Period, Borrower or such Subsidiary, as the case may be, is using
its best efforts to remedy such failure and in the reasonable opinion of
Borrower (as certified by Borrower to Administrative Agent), such failure is
capable of being remedied, Borrower or such Subsidiary, as the case may be,
shall have such additional time, not to exceed 30 days after the expiration of
the Grace Period, as shall be reasonably necessary to remedy such failure; or
(c) Borrower or any of its Subsidiaries shall fail to perform or
observe any of the terms, provisions, covenants, conditions, agreements or
obligations on its part to be performed or observed in Section 7.3 (other than
Section 7.3(a) as to notices of immaterial Unmatured Events of Default) and
Sections 8.1 through 8.7; or
(d) (i) Borrower or any of its Subsidiaries shall become insolvent,
or be unable, or admit in writing its inability, to pay its debts as they become
due; or (ii) Borrower or any Subsidiary shall make an assignment for the benefit
of creditors or to an agent authorized to liquidate any substantial amount of
its properties or assets; or (iii) Borrower or any Subsidiary shall file or have
filed against it a petition in bankruptcy or seeking reorganization or to effect
a plan or other arrangement with creditors or winding up or dissolution, or
seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debt under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, custodian or other similar
official for it or for any substantial part of its property, and such filing
against it shall not be dismissed within sixty (60) days after the date of such
filing; or (iv) Borrower or any Subsidiary shall apply for or consent to the
appointment of or consent that an order be made appointing any receiver or
trustee for any of its or their properties, assets or business, or if a receiver
or a trustee shall be appointed for all or a substantial part of its or their
properties, assets or business; or (v) an order for relief shall be entered
against Borrower or any Subsidiary under the United States federal bankruptcy
laws or
44
the bankruptcy laws of the Bahamas, The Netherlands or the United Mexican States
as now or hereafter in effect; or (vi) Borrower or any Subsidiary shall take any
action indicating its consent to, approval of or acquiescence in, any of the
foregoing; or
(e) Any representation or warranty made by an Obligor herein or in any
certificate or financial or other statement heretofore or hereafter furnished by
Borrower or any Designated Subsidiary or any of their respective officers to
Administrative Agent or the Banks, or by any Guarantor in any Guaranty, proves
to be in any material respect false or misleading as of the date when made,
deemed made or reaffirmed; or
(f) Any final judgment, decrees, writs of execution, attachments or
garnishments or any Liens, or any other legal processes shall be issued or
levied against any of the assets or property of Borrower or any of its
Subsidiaries (and shall not have been vacated, discharged or stayed) in amounts
which in the aggregate would result in a Material Change (without limiting the
generality of the foregoing, a judgment in excess of $10,000,000 in the
aggregate shall, for purposes only of this Section 9.1(f), be deemed to result
in a Material Change); provided, however, that such aggregate amount shall
-------- -------
include only amounts in excess of (i) insurance coverage therefor and (ii)
reserves on the books of Borrower or any of its Subsidiaries therefor; provided,
--------
further, that such aggregate amount shall not include any amounts with respect
-------
to matters subject to appeal conducted in Good Faith and diligently pursued or
other further legal process by Borrower or any of its Subsidiaries or any
amounts with respect to any such legal process which Borrower or any of its
Subsidiaries has detached from such property by posting of a bond or equivalent
process; or
(g) Any governmental authority or any Person acting or purporting to
act under governmental authority shall have taken any action to condemn, seize
or appropriate, or to assume custody or control of, all or any substantial part
of the property of the Borrower or of any of its Subsidiaries, or shall have
taken any action to displace the management of the Borrower or of any of its
Subsidiaries or to curtail its authority in the conduct of the business of the
Borrower or of any of its Subsidiaries; or
(h) Borrower or any of its Subsidiaries (i) fails to make any payment
(or otherwise satisfy) in respect of any indebtedness for money borrowed when
due (whether by scheduled maturity, required prepayment, acceleration, demand,
or otherwise) and such failure continues after the applicable grace or notice
period, if any, specified in the document relating thereto on the date of such
failure; or (ii) an event of default shall occur which permits the acceleration
of indebtedness for money borrowed under any other agreement, contract,
indenture, document or instrument executed, or which may be executed, by
Borrower or any of its Subsidiaries, which failure or event of default has not
been waived or cured; provided, however, that no Event of Default shall exist
-------- -------
hereunder if the amount of the indebtedness which is not paid or may be
accelerated with respect to the defaulted obligations shall not exceed in the
aggregate $10,000,000; or
(i) Xxxxxx or any Successor Guarantor fails to beneficially own and
control and to have economic ownership of, directly or indirectly, at least 25%
of the issued and outstanding capital stock of Borrower; or
45
(j) Xxxxxx or any Successor Guarantor shall fail to perform or observe
any term, covenant or agreement contained in the Xxxxxx Guaranty and such
failure shall continue for more than twenty (20) days after written notice from
Administrative Agent to Borrower of the existence of such failure; or
(k) Any provision of the Xxxxxx Guaranty shall for any reason cease to
be in full force and effect or valid and binding on Xxxxxx or any Successor
Guarantor or Xxxxxx or any Successor Guarantor shall so state; or
(l) An "Event of Default" shall have occurred and be continuing under
the Xxxxxx Credit Agreement; or
(m) The validity of this Agreement shall be contested by any Obligor
or any legislative, executive or judicial body of the Bahamas, The Netherlands,
the United Mexican States or any other jurisdiction, or any Obligor shall deny
liability hereunder or thereunder (whether by a general suspension of payments
or a moratorium on the payment of any class of indebtedness or otherwise), or
any treaty, law, regulation, communique, decree, ordinance or policy of the
Bahamas, The Netherlands, the United Mexican States or any other jurisdiction
shall purport to render any provision of this Agreement invalid or unenforceable
or shall purport to prevent or materially delay the performance or observance by
any Obligor of its obligations hereunder;
Then (a) automatically upon the occurrence of an Event of Default
under Section 9.1(d), the Commitments shall immediately terminate, and all
Loans, an amount equal to the maximum amount that may at any time be drawn under
all Letters of Credit then outstanding (whether or not any beneficiary under any
such Letter of Credit shall have presented, or shall be entitled at such time to
present, the drafts or other documents or certificates required to draw under
such Letter of Credit) and other liabilities and obligations outstanding under
this Agreement shall, without presentment, demand, protest, or notice of any
kind, all of which are hereby expressly waived, be forthwith due and payable, if
not herein otherwise then due and payable, together with all costs and expenses
(including broken funding costs and other costs in connection with the re-
lending, re-borrowing, funding or other employing of funds) incurred by the
Banks as a result thereof, anything herein or in any agreement, contract,
indenture, document or instrument contained to the contrary notwithstanding; and
(b) at any time after the occurrence of an Event of Default other than under
Section 9.1(d), and in each and every such case, unless such Event of Default
shall have been remedied by the Obligors to the satisfaction of Majority Banks
or waived in writing by Majority Banks (except in the case of an Event of
Default under Section 9.1(a) or an Event of Default arising from the failure of
Xxxxxx or any Successor Guarantor to make payments under the Xxxxxx Guaranty,
the waiver of which shall require the consent of all the Banks), Administrative
Agent may, with the consent of the Majority Banks, or shall, upon the direction
of Majority Banks, immediately terminate the Commitments, whereupon the same
shall be cancelled and reduced to zero and any Loan Request given in respect of
a Borrowing Date occurring on or after the date of such notice of cancellation
shall cease to have effect, the obligation of Administrative Agent to issue any
Letter of Credit and the right of any Bank to issue any Letter of Credit
hereunder shall thereupon terminate, and all Loans, all accrued interest
thereon, an amount equal to the maximum amount that may at any time be drawn
under all Letters of Credit then outstanding (whether or not any beneficiary
under
46
any such Letter of Credit shall have presented, or shall be entitled at such
time to present, the drafts or other documents or certificates required to draw
under such Letter of Credit), the outstanding amount of all Accepted Time Drafts
and all other liabilities and obligations outstanding under this Agreement
shall, thereupon, without presentment, demand, protest, or notice of any kind,
all of which are hereby expressly waived, be forthwith due and payable, if not
otherwise then due and payable, together with all costs and expenses (including
broken funding costs and other costs in connection with the re-lending, re-
borrowing, funding or other employing of funds) incurred by the Banks as a
result thereof, anything herein or in any other agreement, contract, indenture,
document or instrument contained to the contrary notwithstanding; provided that
--------
the foregoing shall not affect in any way the obligations of Banks under
subsection 2.13(c)(i). Thereafter any Bank or the Banks may immediately, and
without expiration of any period of grace, enforce payment of all liabilities
and obligations of the Obligors under this Agreement and under any other
agreements, contracts, indentures, documents and instruments between Borrower,
and/or any Designated Subsidiary and the Banks.
9.2 Recovery of Amounts Due. If any amount payable hereunder is not
-----------------------
paid as and when due, each Obligor hereby authorizes Administrative Agent, each
Bank and their respective affiliates to proceed, to the fullest extent permitted
by applicable law, without prior notice, by right of set-off, banker's lien or
counterclaim, against any moneys or other assets of such Obligor in any currency
that may at any time be in the possession of Administrative Agent or any of its
affiliates or such Bank or any of its affiliates, at any branch or office
thereof, to the full extent of all amounts payable to Administrative Agent and
the Banks hereunder. Any Bank that so proceeds or that has an affiliate that so
proceeds shall forthwith give notice to Administrative Agent of any action taken
by such Bank or affiliate pursuant to this Section 9.2.
9.3 Rights Cumulative. The rights of Administrative Agent and the
-----------------
Banks provided for herein are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity.
9.4 Letters of Credit and Accepted Time Drafts.
------------------------------------------
(a) With respect to amounts described in the last paragraph of
Section 9.1 with respect to Letters of Credit and Accepted Time Drafts, the
Obligor for whose account each Letter of Credit was issued will immediately pay
to Administrative Agent for its benefit and the ratable (based on the Adjusted
Exposure) benefit of the Banks in same day funds at the Administrative Agent's
office designated by Administrative Agent, for deposit in a special cash
collateral account, which shall be an interest bearing account (the "Letter of
Credit Collateral Account") to be maintained for the benefit of Administrative
Agent and the ratable (based on the Adjusted Exposure) benefit of Banks at such
place as shall be designated by Administrative Agent, an amount in cash equal to
the maximum amount that may at any time be drawn under all Letters of Credit
issued for such Obligor's account outstanding on such date (whether or not any
beneficiary shall have presented, or shall be entitled at such time to present
the drafts and other documents required to draw under such Letter of Credit)
plus the aggregate outstanding amount of all Accepted Time Drafts (the "Letter
of Credit Obligations").
(b) Each Obligor hereby pledges and assigns to Administrative Agent
for its benefit and the ratable (based on the Adjusted Exposure) benefit of
Banks, and grants to
47
Administrative Agent for its benefit and the ratable (based on the Adjusted
Exposure) benefit of Banks, a lien on and a security interest in the following
collateral (the "Letter of Credit Collateral"):
(i) the Letter of Credit Collateral Account, all cash deposited
therein, and all certificates and instruments, if any, from time to time
representing or evidencing the Letter of Credit Collateral Account;
(ii) all notes, certificates of deposit and other instruments from
time to time hereafter delivered to or otherwise possessed by Administrative
Agent for or on behalf of the Obligors in substitution for or in respect of any
or all of the then existing Letter of Credit Collateral;
(iii) all interest, dividends, cash, instruments and other property
from time to time received, receivable or otherwise distributed in respect of or
in exchange for any or all of the then existing Letter of Credit Collateral; and
(iv) to the extent not covered by clauses (i) through (iii) above,
all proceeds of any or all of the foregoing Letter of Credit Collateral.
(c) Each Obligor agrees that it will not (i) sell or otherwise
dispose of any interest in the Letter of Credit Collateral or (ii) create or
permit to exist any lien, security interest or other charge or encumbrance upon
or with respect to any of the Letter of Credit Collateral, except for the
security interest created by this Section 9.4.
(d) Administrative Agent may, in its sole discretion, without notice
to any Obligor or any Guarantor except as required by law and at any time from
time to time, charge, set off and otherwise apply all or any part of, first, the
-----
Letter of Credit Obligations relating to Letters of Credit and second, the
------
obligations of the Obligors now or hereafter existing under any of the Loan
Documents, against the Letter of Credit Collateral Account or any part thereof,
in such order as Administrative Agent shall elect. Administrative Agent agrees
promptly to notify Borrower after any such setoff and application made by the
Administrative Agent, provided that the failure to give such notice shall not
--------
affect the validity of such setoff and application. Upon the full and final
payment of all indebtedness incurred hereunder (including with respect to
Accepted Time Drafts) and the cancellation or expiration of all Letters of
Credit, the security interest granted to Administrative Agent in the Letter of
Credit Collateral shall terminate and all rights to the Letter of Credit
Collateral shall revert to the Obligors. The rights of Administrative Agent
under this Section 9.4(d) are in addition to other rights and remedies
(including, without limitation, other rights of setoff) which Administrative
Agent may have.
SECTION 10
----------
THE BANKS
---------
10.1 Administration of Loan. The general administration of the Loans
----------------------
shall be by Administrative Agent and shall be governed by the provisions set
forth in Exhibit B attached hereto and incorporated herein by reference.
48
10.2 Representations By Banks. Each Bank hereby represents that it
------------------------
will make each Loan hereunder in the ordinary course of its business and not
with a view to engage in any distribution of any evidence of indebtedness to the
public; provided, however, disposition of any evidence of indebtedness held by
-------- -------
such Bank shall at all times be within its exclusive control subject only to the
provisions of Section 11.11 hereof and Section 10 of Exhibit B.
SECTION 11
----------
MISCELLANEOUS PROVISIONS
------------------------
11.1 Amendments and Waivers. No amendment or waiver of any provision
----------------------
of this Agreement, and no consent with respect to any departure by any Obligor
therefrom, shall be effective unless the same shall be in writing and signed by
the Majority Banks (or by the Administrative Agent at the written request of the
Majority Banks) and the Borrower and acknowledged by the Administrative Agent,
and then any such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however, that
-------- -------
no such waiver, amendment, or consent shall, unless in writing and signed by all
the Banks and the Borrower and acknowledged by the Administrative Agent, do any
of the following: (a) increase or extend the Commitment of any Bank (or
reinstate any Commitment terminated pursuant to Section 9.1); (b) postpone or
delay any date fixed by this Agreement for any payment of principal, interest,
fees or other amounts due to the Banks (or any of them) hereunder; (c) reduce
the principal of, or the rate of interest specified herein on any Loan, or any
fees or other amounts payable hereunder; (d) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Loans which is
required for the Banks or any of them to take any action hereunder; (e) provide
for the release or termination of, or any material amendment or waiver of or
modification to, the Xxxxxx Guaranty; (f) reduce the amount payable under the
Xxxxxx Guaranty; (g) change in any manner the obligations of Banks relating to
the purchase of participations in Letters of Credit or Accepted Time Drafts; or
(h) amend this Section or any provision herein providing for consent or other
action by all Banks; provided, further, that no amendment, waiver or consent
-------- -------
shall, unless in writing and signed by the Administrative Agent in addition to
the Majority Banks or all the Banks, as the case may be, affect the rights or
duties of the Administrative Agent under this Agreement or rights or privileges
thereunder.
11.2 Notices. All notices, payments, requests, reports, information,
-------
demands and other communications which any party hereto may desire, or may be
required, to give or make to any other party hereto, shall (unless otherwise
permitted as a telephonic notice or request hereunder) be given by mailing the
same, postage prepaid, or by telex, or rapifax transmission, or by hand delivery
or courier, to each party at its address set forth in Exhibit C attached hereto
and incorporated herein by reference, or to such other address as may, from time
to time, be specified in writing by Borrower or any Bank. Such communications
shall be deemed to have been duly given and received in the case of a telex,
when the telex is sent and the appropriate answer-back is received, in the case
of mail when sent by pre-paid certified or registered mail correctly addressed
to the addressee, in the case of rapifax transmission, when transmission has
been sent, in the case of hand delivery or courier, when received.
Administrative Agent may rely and act upon any Loan Request made by telex or
other telexed, telephonic or facsimile instructions to Administrative Agent by
any Person purporting to be an authorized Person of Borrower (and, in respect to
Loans made to a Designated Subsidiary, such
49
Designated Subsidiary), and Borrower and the Designated Subsidiary shall be
unconditionally and absolutely estopped from denying the authenticity and
validity of any transaction or act made by Administrative Agent or any Bank in
reliance thereon. Each party hereto shall promptly confirm by telex or rapifax
any telephone communication made by it to another pursuant to this Agreement but
the absence of such confirmation shall not affect the validity of such
communication, which shall be effective upon receipt. If there is any conflict
between any telephonic communication and a written confirmation, the written
communication shall govern, the recipient of such communication shall be held
harmless by all parties hereto with respect to any action taken in reliance on
the telephonic communication prior to the time such recipient receives and has
had reasonable time to review the subsequent written confirmation and initiate
such corrective action as the recipient deems reasonable under the
circumstances.
11.3 Waiver. Neither the failure of, nor any delay on the part of,
------
any party hereto in exercising any right, power or privilege hereunder, or under
any agreement, contract, indenture, document or instrument mentioned herein,
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power or privilege hereunder, or under any agreement, contract,
indenture, document or instrument mentioned herein, preclude other or further
exercise thereof or the exercise of any other right, power or privilege; nor
shall any waiver of any right, power, privilege or default hereunder, or under
any agreement, contract, indenture, document or instrument mentioned herein,
constitute a waiver of any other right, power, privilege or default or
constitute a waiver of any other default of the same or of any other term or
provision. All rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies otherwise provided by law.
11.4 New York Law. The interpretation, enforcement and effect of this
------------
Agreement, the Loans and any agreements, contracts, indentures, documents or
instruments delivered in accordance herewith, shall be governed and controlled
in all respects by and construed according to the substantive laws of the State
of New York (including without limitation Section 5-1401 of the General
Obligations Law of the State of New York), without regard to conflict of laws
principles.
11.5 Headings. The headings set forth herein are solely for the
--------
purpose of identification and shall not be construed as a part of the sections
or subsections which they head.
11.6 Accounting Terms. All accounting terms not otherwise defined
----------------
herein have the meaning assigned to them in accordance with GAAP, provided,
however, any act or condition in accordance herewith and permitted hereunder
when taken, created or occurring, shall not become a violation of any section of
this Agreement as a result of a subsequent change in GAAP.
11.7 Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the different parties hereto on separate counterparts, and
all of said counterparts taken together shall constitute one and the same
instrument.
11.8 Written Disclosure. Wherever written disclosure by an Obligor to
------------------
Banks is required or permitted by this Agreement, written disclosure to
Administrative Agent by such Obligor shall constitute such disclosure.
50
11.9 Singular; Plural. Whenever used herein, the singular number
----------------
shall include the plural, the plural the singular, and the use of any gender
shall be applicable to all genders.
11.10 Illegality. The illegality or unenforceability of any
----------
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
hereunder.
11.11 Assignments and Participations.
------------------------------
(a) The Obligors may not assign their respective rights or
obligations hereunder without the prior written consent of all the Banks.
(b) Each Bank may assign to one or more Eligible Assignees or
Approved Bank Affiliates all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitment, the Loans owing to it and its participations in Letters of Credit);
provided, however, that (i) each such assignment shall be of a constant, and not
-------- -------
a varying, percentage of all rights and obligations under this Agreement, (ii)
after giving effect to any such assignment, (1) the assigning Bank shall no
longer have any Commitment or (2) the amount of the Commitment of both the
assigning Bank and the Eligible Assignee or Approved Bank Affiliate party to
such assignment (in each case determined as of the date of the Assignment and
Acceptance with respect to such assignment) shall not be less than the lesser of
(A) $10,000,000 and (B) the quotient derived from dividing the product of (x)
$10,000,000 times (y) the aggregate amount of all Commitments (determined as of
-----
the date of the Assignment and Acceptance with respect to such assignment) by
the Total Commitment, (iii) Borrower and Administrative Agent shall have
consented to such assignment, which consent shall not be unreasonably withheld,
provided that no consent shall be required for an assignment to a Bank or an
Approved Bank Affiliate and no consent of the Borrower shall be required if, at
the time of such assignment, an Event of Default has occurred and is continuing,
and (iv) the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, and a processing and recordation fee of $3,500. Upon
such execution, delivery, acceptance and recording, from and after the effective
date specified in each Assignment and Acceptance, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and Acceptance, have the
rights and obligations of a Bank hereunder and (y) the Bank assignor thereunder
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Bank's rights and obligations under this Agreement, such Bank shall cease to be
a party hereto; provided that anything contained in any of the Loan Documents to
--------
the contrary notwithstanding, if such Bank is the Issuing Bank with respect to
any outstanding Letters of Credit or Accepted Time Drafts such Bank shall
continue to have all rights and obligations of an Issuing Bank with respect to
such Letters of Credit and Accepted Time Drafts until the cancellation or
expiration of such Letters of Credit, payment or Accepted Time Drafts and the
reimbursement of any amounts drawn thereunder).
51
(c) By executing and delivering an Assignment and Acceptance, the Bank
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Bank makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with any of the Loan
Documents or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of any of the Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; (ii) such assigning Bank makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of Borrower, any Designated Subsidiary, or any Guarantor or
the performance or observance by Borrower, any Designated Subsidiary, or any
Guarantor of any of its obligations under any of the Loan Documents or any other
instrument or document furnished pursuant hereto or thereto; (iii) such assignee
confirms that it has received a copy of the Loan Documents, together with such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (iv)
such assignee will, independently and without reliance upon Administrative
Agent, such assigning Bank or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Loan Documents; (v)
such assignee confirms that it is an Eligible Assignee or an Approved Bank
Affiliate as applicable; (vi) such assignee appoints and authorizes
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under the Loan Documents as are delegated to Administrative Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Bank.
(d) Administrative Agent shall maintain a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the recordation of
the names and addresses of the Banks and the Commitment of and principal amount
of the Loans owing to, each Bank from time to time (the "Register"). The
entries in the Register shall be conclusive and binding for all purposes, absent
manifest error, and Borrower, the Designated Subsidiaries, the Administrative
Agent and the Banks may treat each Person whose name is recorded in the Register
as a Bank hereunder for all purposes of the Loan Documents. The Register shall
be available for inspection by Borrower, the Designated Subsidiaries or any Bank
at any reasonable time and from time to time upon reasonable prior notice.
(e) Within five days of its receipt of an Assignment and Acceptance
executed by an assigning Bank and an assignee representing that it is an
Eligible Assignee or an Approved Bank Affiliate, as applicable (together with a
processing and recordation fee of $3,500 with respect thereto) and upon consent
of Borrower and Administrative Agent, if required pursuant to Section
11.11(b)(iii), Administrative Agent shall, if such Assignment and Acceptance has
been completed and is in substantially the form of Exhibit J hereto, (1) accept
such Assignment and Acceptance and (2) record the information contained therein
in the Register.
(f) Each Bank may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment,
the Loans owing to it, and its participations in Letters of Credit and Accepted
Time Drafts); provided, however, that (i) such Bank's obligations
-------- -------
52
under this Agreement (including, without limitation, its Commitment to Borrower
hereunder) shall remain unchanged, (ii) such Bank shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Bank shall remain the holder of any such Loan, Letters of Credit,
Accepted Time Drafts or participations therein for all purposes of this
Agreement, (iv) Borrower, the Designated Subsidiaries, Administrative Agent and
the other Banks shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under the Loan Documents, and
(v) no Bank shall grant any participation under which the participant shall have
rights to require such Bank to take or omit to take any action hereunder or
under the other Loan Documents or approve any amendment to or waiver of this
Agreement or the other Loan Documents, except to the extent such amendment or
waiver would: (1) extend the Termination Date; or (2) reduce the interest rate,
the amount of principal or fees applicable to Loans or the Commitment or the
amounts payable to such Bank pursuant to Section 2.16 in which such participant
is participating.
(g) Any Bank may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 11.11, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to Borrower, the Designated Subsidiaries, or any Guarantor
furnished to such Bank by or on behalf of Borrower, the Designated Subsidiaries,
or a Guarantor; provided that, prior to any such disclosure, the assignee or
--------
participant or proposed assignee or participant shall agree to preserve in
accordance with Section 11.15 the confidentiality of any confidential
information relating to Borrower, the Designated Subsidiaries, or a Guarantor
received by it from such Bank.
(h) Notwithstanding any other provision set forth in this Agreement,
any Bank may assign any of its rights hereunder to any of its Affiliates and may
at any time create a security interest in all or any portion of its rights under
this Agreement (including, without limitation, the Loans owing to it and any
promissory note or notes executed and delivered by Borrower or any Designated
Subsidiary hereunder and held by such Bank) in favor of any Federal Reserve Bank
in accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
(i) Notwithstanding anything to the contrary contained herein, any
Bank (a "Granting Bank") may grant to a special purpose funding vehicle
organized under the laws of any state of the United States (an "SPC") the option
to fund all or any part of any Loan to the Borrower that such Granting Bank
would otherwise be obligated to fund pursuant to this Agreement; provided that
(i) nothing herein shall constitute a commitment by any SPC to fund any Loan,
(ii) if an SPC elects not to exercise such option or otherwise fails to fund all
or any part of such Loan, the Granting Bank shall be obligated to fund such Loan
pursuant to the terms hereof, and (iii) the Granting Bank shall provide prompt
notice to the Borrower and the Administrative Agent of its grant of an option to
an SPC to fund all or part of a Loan. The funding of a Loan by an SPC hereunder
shall utilize the Commitment of the Granting Bank to the same extent, and as if,
such Loan were funded by the Granting Bank. No SPC shall have the right to
assign or otherwise transfer its right to fund a Loan to any other Person, other
than the Granting Bank. Each party hereto hereby agrees that no SPC shall be
liable for any indemnity or payment under this Agreement for which a Bank would
otherwise be liable, provided that the Granting Bank shall be fully liable for
such indemnity or payment. Notwithstanding anything to the contrary contained
in this Agreement, any SPC may disclose on a confidential basis non-
53
public information relating to its funding of Loans to a rating agency,
commercial paper dealer or provider of any surety or guarantee to such SPC,
provided that the SPC complies with the terms of Section 11.15 hereof as if such
SPC were a party to this Agreement. This subsection 11.11(j) may not be amended
without the prior written consent or each Granting Bank, all or part of whose
Loan is being funded by an SPC at the time of such amendment.
11.12 Obligations Several. The obligations of each Bank under this
-------------------
Agreement are several. Neither Administrative Agent nor any Bank shall be
liable for the failure of any other Bank to perform its obligations under this
Agreement.
11.13 Fees and Expenses. Borrower agrees to pay on demand (a) to
-----------------
Administrative Agent all reasonable costs, expenses and attorneys' fees incurred
by Administrative Agent in connection with the preparation and administration of
this Agreement and any documents including any amendments, waivers, or other
modifications and (b) all costs, expenses and attorneys' fees incurred by
Administrative Agent and Banks in connection with the enforcement of this
Agreement and any instrument or agreement required hereunder and in connection
with any refinancing or restructuring of the Loans in the nature of a "work-
out"; provided, however that, in addition to costs of Administrative Agent's in-
house counsel, Borrower shall be obligated to pay for the costs of no more than
one counsel for Administrative Agent and all Banks (without prejudice to any
Bank's right to engage additional counsel at its own cost and expense) unless
any Bank shall in Good Faith reasonably determine that there is a conflict of
interest that causes it to be reasonably necessary for such Bank to be
represented by separate counsel.
11.14 Indemnity. Borrower agrees to indemnify Administrative Agent,
---------
each Bank and each of their respective Affiliates and each of their respective
directors, officers, agents, advisors, representatives and employees (each, an
"Indemnified Party") from and hold each of them harmless against any and all
losses, liabilities, claims, damages or reasonable expenses, joint or several,
incurred by or asserted or awarded against any of them arising out of or in
connection with or relating to any investigation, litigation or proceeding or
the preparation of any defense with respect thereto, arising out of or in
connection with or relating to any Loan Documents or transactions contemplated
thereby or any use made or proposed to be made with the proceeds of the Loans,
whether or not such investigation, litigation or proceeding is brought by
Borrower, any of its Affiliates, partners, shareholders or creditors, an
Indemnified Party or any other person, or an Indemnified Party is otherwise a
party thereto and whether or not the transactions contemplated thereby are
consummated, except to the extent such claim, damage, loss, liability or expense
results from such Indemnified Party's gross negligence or willful misconduct or
from a material breach of such Indemnified Party's obligations under this
Agreement; provided, however, that Borrower shall have no obligation to
-------- -------
indemnify or pay for the costs and expenses of more than one counsel for
Administrative Agent and all Banks, unless Administrative Agent or any Bank
shall in Good Faith reasonably determine that there is a conflict of interest
that causes it to be reasonably necessary for Administrative Agent or such Bank
to be represented by other counsel. Counsel chosen to represent the Banks or
any Bank pursuant to the previous sentence shall be reasonably satisfactory to
Borrower. The obligations of Borrower under this Section shall survive the
termination of this Agreement.
54
11.15 Confidentiality. Banks, Arranger and Administrative Agent
---------------
agree to maintain the confidentiality of all non-public information disclosed by
Borrower, any Designated Subsidiary or any Guarantor; provided, however, that
-------- -------
any such Person may (a) disclose any confidential information pursuant to a
request or order under applicable laws and regulations or pursuant to a subpoena
or other legal process, and, in such case such Person shall, unless prohibited
by law, give prompt notice to Borrower, such Designated Subsidiary or such
Guarantor, as the case may be; (b) disclose any confidential information to bank
examiners, bank affiliates, auditors, counsel and other advisors, employees,
representatives or agents of such Person; (c) use any confidential information
in connection with the management, supervision and enforcement of this
Agreement, including the enforcement of such Person's rights under any agreement
executed in connection therewith; (d) disclose any confidential information in
connection with any litigation or dispute involving any such Person or the
Borrower or a Designated Subsidiary and related to this Agreement or to any use
of proceeds of the Loans; (e) disclose any confidential information to Banks or
any of their Affiliates; (f) disclose confidential information to prospective
assignees and participants and assignees and participants pursuant to Section
11.11 and (g) disclose confidential information of the Borrower, any Designated
Subsidiary or Guarantor with the written consent of the Borrower and Xxxxxx;
provided, further, that in each of the foregoing cases, such Person shall use
its best efforts to ensure that any such disclosure will be made under
procedures reasonably calculated to maintain the confidentiality of such
information. This Section shall survive termination of the Agreement.
11.16 Right of Set-off. Upon the occurrence and during the
----------------
continuance of any Event of Default, subject to the provisions of Section 3 of
Exhibit B hereto, each Bank 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 such Bank or any of its
Affiliate to or for the credit or the account of the Borrower or a Designated
Subsidiary against any and all of the obligations of the Borrower or such
Designated Subsidiary now or hereafter existing under this Agreement, whether or
not such Bank shall have made any demand under this Agreement and although such
obligations may be unmatured. Each Bank agrees promptly to notify the Borrower
after any such set-off and application made by such Bank, provided that the
--------
failure to give such notice shall not affect the validity of such set-off and
application. The rights of the Banks under this Section are in addition to
other rights and remedies (including, without limitation, other rights of set-
off) which the Banks may have.
11.17 Judgment. (a) If for the purposes of obtaining judgment in any
--------
court it is necessary to convert a sum due hereunder in Dollars into another
currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the respective Bank or the
Administrative Agent could purchase Dollars with such other currency at New
York, New York, on the Business Day preceding that on which final judgment is
given.
(b) The obligation of each Obligor in respect of any sum due from
it to the Administrative Agent or any Bank hereunder shall, notwithstanding any
judgment in a currency other than Dollars, be discharged only to the extent that
on the Business Day following receipt by the Administrative Agent or such Bank
of any sum adjudged to be so due in such other currency the Administrative Agent
or such Bank may in accordance with normal
55
banking procedures purchase Dollars with such other currency; if the Dollars so
purchased are less than the sum originally due to the Administrative Agent or
such Bank in Dollars, such Obligor agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Administrative Agent or such
Bank against such loss, and if the Dollars so purchased exceed the sum
originally due to the Administrative Agent or such Bank in Dollars, the
Administrative Agent or such Bank agrees to remit to the Borrower or the
applicable Designated Subsidiary such excess.
11.18 No Immunity. To the extent that the Borrower or any Designated
-----------
Subsidiary has or hereafter may acquire any immunity from jurisdiction of any
court or from any legal process (whether through service or notice, attachment
prior to judgment, attachment in aid of execution, execution or otherwise) with
respect to itself or its property, the Borrower and such Designated Subsidiary
hereby irrevocably waive such immunity in respect of its obligations under this
Agreement and, without limiting the generality of the foregoing, agrees that the
waivers set forth in this Section 11.18 shall have the fullest scope permitted
under the Foreign Sovereign Immunities Act of 1976 of the United States and are
intended to be irrevocable for purposes of such Act.
11.19 Proceedings, Etc. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST
-----------------
BORROWER OR ANY DESIGNATED SUBSIDIARY ARISING OUT OF OR RELATING TO THIS
AGREEMENT MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION
IN THE STATE OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT EACH
OF BORROWER AND EACH DESIGNATED SUBSIDIARY ACCEPTS FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH THIS AGREEMENT. Borrower and each Designated Subsidiary
hereby designates and appoints CT Corporation System, presently located at 0000
Xxxxxxxx, Xxx Xxxx, X.X. 00000 as its authorized agent to accept and acknowledge
on its behalf service of any and all process which may be served in any suit,
action or proceeding in any New York State or United States Federal Court
sitting in New York. Borrower and each Designated Subsidiary represents and
warrants that such agent has agreed in writing to accept such appointment and
that true copies of such acceptance will be furnished to the Administrative
Agent prior to the Effective Date. Borrower and each Designated Subsidiary
agrees that the failure of such agent to give notice to Borrower or such
Designated Subsidiary of any such service shall not impair the validity of such
service or of any judgment rendered in any action or proceeding based thereon.
Service of all process in any such proceeding in any such court may be made by
hand delivery, overnight courier or by registered or certified mail, return
receipt requested, to such agent, such service being hereby acknowledged by
Borrower and each Designated Subsidiary to be sufficient for personal
jurisdiction in any action against Borrower and each Designated Subsidiary in
any such court and to be otherwise effective and binding service in every
respect. Nothing herein shall affect the right to serve process in any other
manner permitted by law or shall limit the right of the Administrative Agent or
any Bank to bring proceedings against Borrower and any Designated Subsidiary in
the courts of any other jurisdiction. White Holding Mexico hereby expressly
submits to the jurisdiction of the aforesaid courts and waives any jurisdiction
rights it may have by reason of its present or future domicile or otherwise.
56
11.20 Jury Trial Waiver. BORROWER, EACH DESIGNATED SUBSIDIARY,
-----------------
ADMINISTRATIVE AGENT AND EACH BANK EACH HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT. The scope of this waiver is intended to be all-encompassing
of any and all disputes that may be filed in any court and that relate to the
subject matter of this transaction, including without limitation contract
claims, tort claims, breach of duty claims and all other common law and
statutory claims. Borrower, each Designated Subsidiary, Administrative Agent
and each Bank (i) acknowledges that this waiver is a material inducement for it
to enter into a business relationship, that it has already relied on this waiver
in entering into this Agreement, and that each will continue to rely on this
waiver in their related future dealings, and (ii) further warrants and
represents that each has reviewed this waiver with its legal counsel and that
each knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT
MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, EXCEPT BY A WRITTEN INSTRUMENT
SPECIFICALLY REFERRING TO THIS SECTION 11.20, AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS OF THIS AGREEMENT.
In the event of litigation, this Agreement may be filed as a written consent to
a trial by the court.
11.21 Additional Commitments.
----------------------
(a) Borrower may, as provided in this Section 11.21, increase the
amount of the Total Commitment up to an aggregate principal amount of Two
Hundred Twenty-Five Million Dollars ($225,000,000). Such increase shall be in
an amount of at least Five Million ($5,000,000) or integral multiples thereof.
After the effective date of such increase, the Banks' obligations under this
Agreement shall be based on the Total Commitment, after giving effect to such
increase.
(b) In order to increase the amount of the Total Commitment, Borrower
shall deliver to the Administrative Agent an Additional Commitment and
Acceptance in substantially the form of Exhibit L executed by the Borrower and a
financial institution that wishes to become a Bank hereunder. Such financial
institution must satisfy the requirements applicable to an Eligible Assignee and
must confirm to and agree with each other party hereto as follows: (i) such
financial institution confirms that it has received a copy of the Loan
Documents, together with such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Additional Commitment and Acceptance; (ii) such financial institution will,
independently and without reliance upon the Administrative Agent or any other
Bank and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents; (iii) such financial institution confirms that
it is an Eligible Assignee; (iv) such financial institution appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under the Loan Documents as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (v) such financial institution agrees that it
will perform in accordance with their terms all of the obligations which by the
terms of the Loan Documents are required to be performed by it as a Bank.
57
(c) Within five days of its receipt of an Additional Commitment and
Acceptance satisfying the requirements of subsection (a) of this Section 11.21
executed by Borrower and a financial institution representing that it is an
Eligible Assignee, together with a processing and recordation fee of $3,500 with
respect thereto, Administrative Agent shall, if such Additional Commitment and
Acceptance has been completed and is in substantially the form of Exhibit L
hereto, (1) accept such Additional Commitment and Acceptance and (2) record the
information contained therein in the Register. Administrative Agent shall
maintain a copy of each Additional Commitment and Acceptance delivered to and
accepted by it. The additional Commitment shall become effective on the first
date after the acceptance thereof by the Administrative Agent on which all
Eurodollar Loans are simultaneously converted to Loans of another type or
Interest Period pursuant to Section 2.8 of the Credit Agreement, provided that
if no Eurodollar Loans are outstanding on the date of acceptance by
Administrative Agent, the effective date shall be the date of acceptance by
Administrative Agent.
(d) The Administrative Agent shall promptly thereafter notify each of
the other Banks of the increase in the Total Commitments; provided that the
failure of the Administrative Agent to so notify the other Banks shall not
affect in any manner the validity of the increase in the amount of the Total
Commitment.
(e) On the effective date of each additional Commitment, the
financial institution becoming a Bank on such date shall pay to the
Administrative Agent an amount equal to such Bank's Percentage of all Eurodollar
Loans being converted pursuant to Section 2.8 and of all Reference Rate Loans
outstanding on the effective date, and the Administrative Agent shall promptly
distribute to each of the other Banks its share of such payment to reduce each
of such Bank's pro rata share of the Loans to its Percentage, after giving
effect to the Commitment of the new Bank.
IN WITNESS WHEREOF this Agreement has been executed by the parties
hereto as of the date first hereinabove written.
58
BORROWER: SURFIN LTD.
By: /s/
-----------------------------
Name:
Title:
DESIGNATED SUBSIDIARY
OBLIGORS WHITE HOLDING B.V.
By: /s/
-----------------------------
Name:
Title:
WHITE HOLDING MEXICO, S de X.X. de C.V.
By: /s/
-----------------------------
Name:
Title:
S-1
CITICORP USA, INC., as Administrative Agent
By: /s/
-----------------------------
Name:
Title:
CITIBANK, N.A., as a Bank
By: /s/
-----------------------------
Name:
Title:
S-2
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH, as
Syndication Agent and a Bank
By: /s/
-----------------------------
Name:
Title:
By: /s/
-----------------------------
Name:
Title:
S-3
SCHEDULE 1
BANKS AND COMMITMENTS
---------------------
Name of Bank Commitment Percentage
------------ ---------- ----------
Citibank, N.A. $ 75,000,000 50.000%
Deutsche Bank AG New York Branch and/or
Cayman Islands Branch $ 75,000,000 50.000%
Total: $150,000,000 100.000%
Schedule 1
EXHIBIT A
---------
LOAN REQUEST
------------
TO: Citicorp USA, Inc., as Administrative Agent for Banks
FROM: [SurFin Ltd.] [White Holding B.V.] [White Holding Mexico]
DATE:
RE: SurFin Ltd. -- Credit Agreement
Ladies and Gentlemen:
1. We refer to the Credit Agreement dated as of September 20, 2000 and made
among SurFin Ltd., the Designated Subsidiaries (as defined therein),
Citicorp USA, Inc., as Administrative Agent, and Deutsche Bank AG New
York Branch and/or Cayman Islands Branch, as Syndication Agent, and the
certain financial institutions named therein as Banks (the "Agreement").
Terms defined in the Agreement shall have the same meaning herein.
2. We hereby request that a [Reference Rate Loan] [Eurodollar Loan] be made
as follows:
(i) Name of Obligor to which Loan is to be made: [Specify either
SurFin Ltd., White Holding B.V. or White Holding Mexico]
(ii) Principal Amount:
(iii) Borrowing Date:
(iv) Interest Period (if a Eurodollar Loan):
3. For the purposes of inducing the Banks to make the Loan requested herein,
we confirm that, pursuant to Section 5.2 of the Agreement, as of the date
hereof:
(i) the representations and warranties set out in Section 6 of the
Agreement are true and correct in all material respects;
(ii) the most current financial statements of Borrower and its
Subsidiaries present fairly the financial position and results of
operation and changes in financial position of Borrower and its
consolidated Subsidiaries as at the end of, and for the fiscal period
to which such statements relate as of the date of the last such
audited financial statements (subject, in the case of unaudited
financial statements, to year end adjustments) and there has been no
Material Change since the date of the last such audited financial
statements; and
(iii) no Event of Default or Unmatured Event of Default has occurred
and is continuing, and
A-1
(iv) the "Total Utilization of the Commitments", as defined in the
Existing Credit Agreement equals 90% of the aggregate amount of the
"Total Commitments", as defined in the Existing Credit Agreement.
[SurFin Ltd.] [White Holding B.V.] [White Holding Mexico]
By:______________________________________
Title:___________________________________
A-2
EXHIBIT B
RELATIONS AMONG THE BANKS AND ADMINISTRATIVE AGENT
--------------------------------------------------
1. Administration of the Credit. Payment of interest and principal
----------------------------
on the Loans and the Facility Fees and all other amounts payable by the Obligors
hereunder shall be made by the Obligors in immediately available funds, directly
to each Bank in the case of amounts payable under Sections 3.1, 3.2 and 3.3 and,
in all other cases, to Administrative Agent, and Administrative Agent shall
promptly distribute to the other Banks in immediately available funds their
shares of principal, interest and fees and to each Bank as provided herein such
other amounts as paid by Borrower.
2. Pro Rata Distribution. All Facility Fees will be divided among
---------------------
the Banks in accordance with their Percentage, and interest and principal
payments on each Loan will be divided pro rata among Banks in accordance with
their Percentage.
3. Right of Set-off. Any Bank which shall receive payment of or on
----------------
account of all or part of its share of the Loans or amounts due in respect of
Participated Letters of Credit or Accepted Time Drafts with respect to
Participated Letters of Credit through the exercise of any right of set-off,
counterclaim, or banker's lien, or otherwise in a greater proportion than the
proportionate amount of principal, interest or amounts in respect of
Participated Letters of Credit and Accepted Time Drafts with respect to
Participated Letters of Credit due it under this Agreement immediately prior to
such payment shall purchase a ratable proportion of the portions of the Loans or
participations in the applicable Participated Letters of Credit and Accepted
Time Drafts with respect to Participated Letters of Credit held by the other
Banks so that all recoveries of principal, interest and amounts due in respect
of Participated Letters of Credit and Accepted Time Drafts with respect to
Participated Letters of Credit shall be shared by the Banks in accordance with
their pro rata interests therein.
4. Notice of Event of Default. Upon receipt by Administrative Agent
--------------------------
from an Obligor of any communication calling for an action on the part of Banks,
or upon notice to Administrative Agent of an Event of Default, it will in turn
promptly inform the other Banks in writing of the nature of such communication
or of the Event of Default, as the case may be.
5. Actions by Administrative Agent. Each Bank hereby appoints and
-------------------------------
authorizes CUSA to act as Administrative Agent under this Agreement and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto. As to any matters not expressly provided for by
the Loan Documents (including, without limitation, enforcement or collection of
the Loans and other amounts owing hereunder), the Administrative Agent shall be
required to exercise any discretion to take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Majority Banks, and such
instructions shall be binding upon all Banks; provided, however, that the
-------- -------
Administrative Agent shall not be required to take any action which exposes the
Administrative Agent to personal liability or which is contrary to any of the
Loan Documents or
B-1
applicable law. Upon any occasion requiring or permitting an approval, consent,
election or other action on the part of Banks, action shall be taken by
Administrative Agent for and on behalf or for the benefit of all Banks upon the
direction of the required number of Banks and the Administrative Agent, if
applicable, as set forth in Section 11.1 of the Agreement.
6. Several Liability of Banks. The obligation of each Bank
--------------------------
hereunder is several, and the failure of one Bank to perform hereunder shall in
no way relieve the other Banks from performance; provided that no Bank shall be
responsible for any other Bank's failure to perform its obligations under the
Agreement.
7. Liability of Administrative Agent. Administrative Agent shall
---------------------------------
not be liable or answerable for anything whatsoever in connection with this
Agreement except for its willful misconduct or gross negligence, and
Administrative Agent shall have no duties or obligations other than as provided
herein. Administrative Agent shall be entitled to rely on any opinion of
counsel (including counsel for the Obligors) in relation to this Agreement, and
upon statements and communications received from the Obligors, or from any other
person, believed by it to be authentic, and shall not be liable for any action
taken or omitted in Good Faith on such reliance.
8. Indemnification of Administrative Agent. Each Bank agrees to
---------------------------------------
indemnify Administrative Agent (to the extent not reimbursed by Borrower and
without limiting the obligation of Borrower to do so), ratably according to its
Percentage, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by or
asserted against Administrative Agent in any way relating to or arising out of
this Agreement or any action taken or omitted by Administrative Agent under this
Agreement except for Administrative Agent's gross negligence or willful
misconduct. The obligations of the Banks under this Section 8 shall survive
termination of the Agreement. Without limitation of the foregoing, each Bank
agrees to reimburse the Administrative Agent promptly upon demand for its
ratable share of any out-of-pocket expenses (including counsel fees) incurred by
the Administrative Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, to the extent that
the Administrative Agent is not reimbursed for such expenses by the Borrower.
9. Rights of Administrative Agent as Bank. With respect to their
--------------------------------------
respective obligations to lend and to issue Letters of Credit under this
Agreement, the Loans made, the Letters of Credit issued and Accepted Time Drafts
created, CUSA and Citibank, as the Designated Issuer for CUSA, shall have the
same rights and powers hereunder as any other Bank and may exercise the same as
though CUSA were not Administrative Agent; and the term "Banks" shall include
CUSA in its individual capacity. CUSA and its Affiliates may accept deposits
from, lend money to, and generally engage in any kind of banking, trust,
investment banking or other business with any Obligor or any Guarantor as if it
were not Administrative Agent.
10. Assignment by Bank of its Obligations. Administrative Agent may
-------------------------------------
deem and treat a Bank party to this Agreement as the owner of such Bank's
portion of the Loans for all
B-2
purposes hereof unless and until a written notice of the assignment or transfer
of such Bank's obligations otherwise permitted under the Agreement executed by
such Bank shall have been received by Administrative Agent, together with
Borrower's consent to such assignment or transfer and such other documentation
from such Bank and its assignee or transferee as Administrative Agent may
reasonably request, as provided in Section 11.11 of this Agreement.
11. Representations by Banks. Neither Administrative Agent nor any
------------------------
Bank has made or makes to any other Bank any representation, and neither
Administrative Agent nor any Bank assumes any responsibility, for any
statements, warranties or representations (whether written or oral) made in or
in connection with this Agreement or in respect of the legality, validity,
enforceability, genuineness, sufficiency, execution, construction or enforcement
of this Agreement or any other instrument or agreement executed by any Obligor
or by any other person or entity.
12. Independent Investigation by Banks. Each Bank has made and shall
----------------------------------
continue to make its own independent investigation of the financial condition
and affairs of Borrower in connection with the making and the continuance of the
Loans and the issuance of Letters of Credit and has made and covenants that it
shall continue to make its own appraisal of the credit worthiness of the
Obligors. Each Bank agrees Administrative Agent has no duty or responsibility,
either initially or on a continuing basis, to provide any Bank with any credit
or other information with respect to any Obligor, whether coming into its
possession before the making of the Loans or at any time or times thereafter or
to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement on the part of the Borrower or
to inspect the property (including the books and records) of the Borrower, in
each case except as expressly provided in this Agreement.
13. Successor Administrative Agent. Administrative Agent shall have
------------------------------
the right, at any time, to resign as Administrative Agent for the Banks
hereunder. Such resignation shall not be effective until a successor agent
chosen by Majority Banks, and accepted by Borrower, shall accept appointment as
agent for the Banks hereunder. If no successor Administrative Agent shall have
been so appointed by the Majority Banks and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent has given
notice of resignation, the retiring Administrative Agent may, on behalf of the
Banks, appoint a successor Administrative Agent reasonably acceptable to
Borrower, which successor Administrative Agent shall be a commercial bank
organized under the laws of the United States of America or a State thereof
having a combined capital and surplus of at least $100,000,000. Upon the
acceptance by the successor Administrative Agent of its appointment hereunder,
the successor Administrative Agent shall succeed to and become vested with all
the rights and obligations of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its obligations under
this Agreement. The provisions of this Article shall inure to the benefit of
the retiring Administrative Agent as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement. After any
retiring Administrative Agent's resignation hereunder as Administrative Agent,
the provisions of this Exhibit B and Section 11.13 shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was Administrative
Agent under this Agreement.
B-3
EXHIBIT C
LENDING OFFICES OF BANKS AND ADDRESSES FOR NOTICES
--------------------------------------------------
SurFin Ltd.
Notice Address: SurFin Ltd.
00 Xxxxxxx Xxxxxx
X.X. Xxx XX-00000
Nassau, Bahamas
Attn: Xxxxx Xxxxx
With a copy to:
SurFin Ltd.
0000 X. Xxxxxxxxxx Xxxx., Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
White Holding B.V.
c/o TMF Management B.V.
Locatellikade 1
Parnassustoren
1076 AZ Amsterdam
The Netherlands
Attn: Xxxxx X. van der Sluijs-Xxxxxx
With a copy to:
White Holding B.V.
0000 X. Xxxxxxxxxx Xxxx., Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
White Holding Mexico, S de X.X. de C.V.
c/o Grupo Galaxy Mexicana
Attention: Xx. Xxxxxx Xxxxxxx
Bld X. Xxxxx Xxxxxxx Xx 0 -000
Xxx Xxxxxxx
Xxxxxx, 00000 D.F.
C-1
With a copy to:
White Holding Mexico, S de X.X. de C.V.
0000 X. Xxxxxxxxxx Xxxx., Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Citibank, N.A.
Domestic Lending office:
c/o Citicorp USA, Inc.
Citibank Agency Services
0 Xxxxx Xxx, Xxxxx 0000
Xxx Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxx
Eurodollar Lending office:
c/o Citicorp USA, Inc.
Citibank Agency Services
0 Xxxxx Xxx, Xxxxx 0000
Xxx Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxx
Notice Address: c/o Citicorp USA, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
J. Xxxx Xxxxx
Xxxx Xxxxxxx
C-2
Deutsche Bank AG New York and/or Cayman Islands Branch
Domestic Lending Office: Deutsche Bank AG, New York Branch
00 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Eurodollar Lending Office: Deutsche Bank AG, Cayman Islands Branch
00 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Notice Address: Deustche Bank AG
00 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
Managing Director
Deutsche Bank AG
00 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Xxxxxxx
Vice President
C-3
CREDIT AGREEMENT
among
SURFIN LTD.,
certain DESIGNATED SUBSIDIARIES
and
THE BANKS NAMED HEREIN
and
CITICORP USA, INC.
as Administrative Agent
and
DEUTSCHE BANK AG
NEW YORK BRANCH AND/OR CAYMAN ISLANDS BRANCH
as Syndication Agent
Dated as of September 20, 2000
Arranged By
XXXXXXX XXXXX BARNEY INC.
TABLE OF CONTENTS
-----------------
Page
----
SECTION 1................................................................................ 1
DEFINITIONS.............................................................................. 1
1.1 Definitions....................................................................... 1
SECTION 2................................................................................ 11
THE CREDIT............................................................................... 11
2.1 The Commitments................................................................... 11
2.2 Loans made to the Borrower and the Designated Subsidiaries........................ 12
2.3 Requests for Reference Rate and Eurodollar Loans.................................. 12
2.4 Guaranty.......................................................................... 12
2.5 Interest and Principal on Reference Rate Loans.................................... 12
2.6 Interest and Principal on Eurodollar Loans........................................ 13
2.7 Loan Accounts..................................................................... 13
2.8 Conversion of Loans Between Eurodollar Loans and Reference Rate
Loans and Conversion of Interest Periods of Eurodollar Loans...................... 13
2.9 Disbursements and Payments........................................................ 14
2.10 Facility Fee...................................................................... 15
2.11 Issuance of Letters of Credit and Banks' Purchase of Participations in
Participated Letters of Credit.................................................... 16
2.12 Letter of Credit Fees............................................................. 19
2.13 Drawings and Reimbursement of Amounts Paid Under Letters of Credit................ 21
2.14 Obligations Absolute.............................................................. 24
2.15 Indemnification; Nature of Issuing Banks' Duties.................................. 25
2.16 Increased Costs and Taxes Relating to Letters of Credit........................... 26
2.17 Survival of Certain Provisions Relating to Letters of Credit...................... 27
SECTION 3................................................................................ 27
PAYMENT OF COSTS AND REDUCTION OF THE COMMITMENT......................................... 27
3.1 Indemnification Upon Failure to Pay Eurodollar Loan............................... 27
3.2 Increased Costs................................................................... 28
3.3 Taxes............................................................................. 29
3.4 Prepayment........................................................................ 29
3.5 Pro Rata Reduction of Commitments by Borrower..................................... 30
i
3.6 Reduction of One Bank's Commitment by Borrower.................................... 30
3.7 Notice of Reductions.............................................................. 30
3.8 Designation of Replacement Bank................................................... 30
3.9 Effect of Reduction of Commitment................................................. 31
3.10 Accrued Fees...................................................................... 31
3.11 Survival.......................................................................... 31
SECTION 4................................................................................ 31
CHANGE IN CIRCUMSTANCES AFFECTING LOANS.................................................. 31
4.1 Inability to Determine Eurodollar Rate............................................ 31
4.2 Illegality........................................................................ 32
SECTION 5................................................................................ 32
CONDITIONS PRECEDENT..................................................................... 32
5.1 Initial Conditions Precedent...................................................... 32
5.2 Conditions Precedent to Loans..................................................... 34
5.3 Conditions to Letter of Credit.................................................... 35
SECTION 6................................................................................ 35
REPRESENTATIONS AND WARRANTIES........................................................... 35
6.1 Authority of Borrower............................................................. 35
6.2 Binding Obligations............................................................... 36
6.3 Incorporation of Subsidiaries..................................................... 36
6.4 No Contravention.................................................................. 36
6.5 Notices........................................................................... 36
6.6 Financial Statements.............................................................. 36
6.7 ERISA............................................................................. 37
6.8 Use of Proceeds; Margin Regulations; Investment Act............................... 37
6.9 Taxes............................................................................. 37
6.10 Insurance......................................................................... 37
6.11 Liens............................................................................. 37
6.12 Absence of Litigation; Litigation Description..................................... 37
6.13 Authorizations and Approvals...................................................... 37
6.14 Taxes............................................................................. 38
6.15 Enforcement....................................................................... 38
6.16 Authority of Designated Subsidiaries.............................................. 38
ii
SECTION 7................................................................................ 39
AFFIRMATIVE COVENANTS OF BORROWER........................................................ 39
7.1 Use of Proceeds of Loans.......................................................... 39
7.2 Management of Business............................................................ 39
7.3 Notice of Certain Events.......................................................... 39
7.4 Records........................................................................... 40
7.5 Information Furnished............................................................. 40
7.6 Execution of Other Documents...................................................... 40
7.7 Administrative Agent's and Arranger's Fees........................................ 41
7.8 Compliance with Law............................................................... 41
7.9 Maintenance of Properties, Etc.................................................... 41
SECTION 8................................................................................ 41
NEGATIVE COVENANTS OF BORROWER........................................................... 41
8.1 Liens............................................................................. 41
8.2 Mergers, Liquidations and Sales of Assets......................................... 42
8.3 Compliance with Margin Regulations................................................ 43
8.4 Compliance with Law, etc.......................................................... 43
8.5 Change in Business................................................................ 43
8.6 Ownership of Designated Subsidiaries.............................................. 43
8.7 ERISA............................................................................. 43
SECTION 9................................................................................ 43
EVENTS OF DEFAULT........................................................................ 43
9.1 Events of Default................................................................. 43
9.2 Recovery of Amounts Due........................................................... 47
9.3 Rights Cumulative................................................................. 47
9.4 Letters of Credit and Accepted Time Drafts........................................ 47
SECTION 10............................................................................... 48
THE BANKS................................................................................ 48
10.1 Administration of Loan............................................................ 48
10.2 Representations By Banks.......................................................... 49
SECTION 11............................................................................... 49
MISCELLANEOUS PROVISIONS................................................................. 49
11.1 Amendments and Waivers............................................................ 49
iii
11.2 Notices........................................................................... 49
11.3 Waiver............................................................................ 50
11.4 New York Law...................................................................... 50
11.5 Headings.......................................................................... 50
11.6 Accounting Terms.................................................................. 50
11.7 Counterparts...................................................................... 50
11.8 Written Disclosure................................................................ 50
11.9 Singular; Plural.................................................................. 51
11.10 Illegality........................................................................ 51
11.11 Assignments and Participations.................................................... 51
11.12 Obligations Several............................................................... 54
11.13 Fees and Expenses................................................................. 54
11.14 Indemnity......................................................................... 54
11.15 Confidentiality................................................................... 55
11.16 Right of Set-off.................................................................. 55
11.17 Judgment.......................................................................... 55
11.18 No Immunity....................................................................... 56
11.19 Proceedings, Etc.................................................................. 56
11.20 Jury Trial Waiver................................................................. 57
11.21 Additional Commitments............................................................ 57
SCHEDULES
1 Banks and Commitments
EXHIBITS
A Form of Loan Request
B Relations Among the Banks and Administrative Agent
C Addresses and Lending Offices of Banks
D Form of Xxxxxx Guaranty
E Form of Guaranty of Xxxxxxx
F-1 Form of Opinion of Bahamas Counsel to Borrower
F-2 Form of Opinion of Netherlands Counsel for White Holding
F-3 Form of Opinion of Mexican Counsel for White Holding Mexico
G Form of Opinion of New York Counsel to Borrower
H-1 Form of Opinion of Assistant General Counsel to Xxxxxx
iv
H-2 Form of Opinion of Counsel to Other Guarantor
I Form of Opinion of Special Counsel to Administrative Agent
J Form of Assignment and Acceptance
K Form of L/C Request
L Form of Additional Commitment and Acceptance
v
EXHIBIT D
[FORM OF XXXXXX GUARANTY]
GUARANTY
--------
THIS GUARANTY, dated as of September 20, 2000, is made by XXXXXX
ELECTRONICS CORPORATION, a Delaware corporation (the "Guarantor"), in favor of
---------
CITICORP USA, INC., a Delaware corporation, as Administrative Agent for and
representative of the financial institutions party to the Credit Agreement
defined below (together with its successors and permitted assignees in such
capacity, the "Administrative Agent").
--------------------
RECITALS
--------
A. The Guarantor is an owner, directly or indirectly, of
approximately 75.049% of the equity of SurFin Ltd., an international business
company incorporated under the laws of the Bahamas (the "Borrower"). Pursuant
--------
to that certain Credit Agreement of even date herewith (as it may be amended,
supplemented or otherwise modified from time to time the "Credit Agreement")
----------------
among the Borrower, the Designated Subsidiaries (as defined in the Credit
Agreement), the Banks party thereto, the Administrative Agent, as agent for the
Banks and Deutsche Bank AG New York Branch and/or Cayman Islands Branch as
syndication agent, the Banks have agreed to make available a $150,000,000
revolving credit facility to the Borrower and the Designated Subsidiaries (each
an "Obligor" and collectively the "Obligors"), which may be increased to no more
than $225,000,000. The Borrower has advised the Guarantor, the Administrative
Agent and the Banks that the Obligors intend to use the proceeds of the such
revolving credit facility to finance the development in Mexico and various
countries in the Caribbean, Central America and South America of a satellite
television service.
B. The Banks are willing to enter into the Credit Agreement on the
condition that the Guarantor guarantees, jointly and severally with the other
owners (or their affiliates) of the Borrower, the payment of the Borrower's
obligations under the Credit Agreement pursuant to the terms of this Guaranty.
NOW, THEREFORE, in consideration of the foregoing promises and other
good and valuable consideration, receipt and sufficiency of which are
acknowledged, the Guarantor hereby agrees as follows:
1. Definitions. Capitalized terms not otherwise defined in this
-----------
Guaranty shall have the meanings given them in the Credit Agreement.
2. Guaranty.
--------
(a) The Guarantor hereby irrevocably and unconditionally,
guarantees the punctual payment when due of all payment obligations of the
Obligors under the Credit Agreement, up to a maximum amount as to principal of
US$225,000,000 plus all interest, fees, indemnities and other amounts payable
under the Credit Agreement, including amounts that
D-1
would become due but for the operation of the automatic stay under Section
362(c) of the United States Bankruptcy Code or similar provisions under the laws
of the Bahamas, The Netherlands, the United Mexican States or other applicable
law (collectively, the "Guaranteed Obligations"). In the event that any of the
----------------------
Guaranteed Obligations shall not be paid when due within any specified grace
period provided for in the Credit Agreement, the Guarantor agrees to pay such
Guaranteed Obligations within ten Business Days after the giving by the
Administrative Agent to the Guarantor and the Process Agent named in Section 15
hereof of written notice (a "Demand") demanding payment by the Guarantor,
provided that in the event any such payment is required to be made by the
--------
Guarantor hereunder, the Guarantor may cause such obligation or liability to be
paid on its behalf by any corporation affiliated with it, including the
Obligors, provided that the Guarantor shall nevertheless be unconditionally
obligated to pay such obligation or liability if such affiliate, including the
Obligors, shall fail timely to pay such obligation or liability.
(b) This Guaranty is a guarantee of payment and not of
performance or collection. The obligation of the Guarantor hereunder shall be
independent of the obligation of any other Guarantor (as such term is defined in
the Credit Agreement), all such obligations being joint and several.
(c) The Guarantor shall be subrogated to all rights of the Banks
against the Obligors in respect of any amounts paid by the Guarantor pursuant to
the provisions of this Guaranty; provided, however, that the Guarantor shall not
-------- -------
be entitled to enforce or receive any payments arising out of, or based upon,
such right of subrogation until all the Guaranteed Obligations shall have been
irrevocably and indefeasibly paid in full and no Guaranteed Obligations may
arise in the future.
3. Guaranty Absolute. The liability of the Guarantor under this
-----------------
Guaranty with respect to each and all of the Guaranteed Obligations shall be
irrevocable and shall be absolute and unconditional irrespective of, and shall
not be released, discharged or in any way affected by, any circumstance,
condition or matter (whether or not the Guarantor or any Obligor shall have any
knowledge or notice thereof), including, without limitation:
(a) any amendment, waiver, extension or renewal of, or any
consent to departure from, the Credit Agreement, including, without limitation,
any waiver or consent involving a change in the time, manner or place of payment
of all or any of the Guaranteed Obligations;
(b) any exchange, release or nonperfection of any collateral, or
any release or amendment or waiver of or consent or departure from any other
guaranty or security agreement, for all or any of the Guaranteed Obligations;
(c) any extension of the time for payment by any Obligor or any
other person of any Guaranteed Obligation under the Credit Agreement or any
other document related thereto;
(d) any failure, omission or delay by the Administrative Agent
or the Banks to enforce, assert or exercise any right, power or remedy conferred
on or available to it;
D-2
(e) any inability, lack of authority or legal disability of any
Obligor to perform any agreement, covenant, term or condition contained in the
Credit Agreement for any reason (whether or not the Guarantor shall have any
knowledge or notice thereof), including, without limitation, provisions of any
law or regulation of any jurisdiction (including the Bahamas, The Netherlands
and the United Mexican States) purporting to prohibit or excuse payment or
performance by any Obligor of its obligations under the Credit Agreement;
(f) the voluntary or involuntary liquidation, dissolution, sale
of assets, marshalling of assets and liabilities, receivership, conservatorship,
custodianship, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of or similar
proceeding affecting any Obligor, the Guarantor, the Administrative Agent, the
Banks or any other person or any of their respective properties or creditors, or
any action taken by any trustee or receiver or by any court in any such
proceeding;
(g) any merger or consolidation of any Obligor into or with any
person or any sale, lease or transfer of any of the assets of any Obligor to any
other person;
(h) any change in corporate relationship between any Obligor and
the Guarantor or any termination of any such relationship;
(i) any counterclaim, set-off, deduction or defense any Obligor,
the Guarantor or any other Person may have against the Administrative Agent, the
Banks or any other person other than indefeasible payment in full; and
(j) any other circumstance whatsoever, whether similar or
dissimilar to the foregoing, which might otherwise constitute a legal or
equitable defense available to, or a discharge of, the Guarantor in respect of
this Guaranty.
This Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment by any Obligor, the Guarantor or any
other person of any of the Guaranteed Obligations owed hereunder is rescinded or
must otherwise be returned by the Administrative Agent or the Banks upon the
insolvency, bankruptcy or reorganization of any Obligor, the Guarantor or any
other person, all as though such payment had not been made. If the payment of
any sum required to be made by any Obligor under the Credit Agreement shall at
any time be prevented by reason of a case or proceeding under bankruptcy,
insolvency or other similar law, the Guarantor agrees that, for purposes of this
Guaranty and its obligations hereunder, such sum shall be deemed to be payable
in accordance with the terms of the Credit Agreement, and the Guarantor shall
pay such sum and any other amounts guaranteed hereunder.
4. Waiver by the Guarantor. The Guarantor hereby unconditionally
-----------------------
waives, to the greatest extent permitted by applicable law, (i) any and all
notice of the creation, renewal, extension or accrual of any of the Guaranteed
Obligations and notice of or proof of reliance by the Banks upon this Guaranty,
or acceptance of this Guaranty, and the Guaranteed Obligations, (ii) any
requirement that the Banks exhaust any right or take any action against any
Obligor, any other guarantor or any other person or any collateral, (iii) any
and all rights which the Guarantor may have or which at any time hereafter may
be conferred upon it, by statute (including but not limited to any statute of
limitations), regulation or otherwise, to terminate or cancel this
D-3
Guaranty, (iv) all notices which may be required by statute, rule of law or
otherwise to preserve any rights against the Guarantor hereunder, including,
without limitation, any demand, presentment, protest, proof or notice of
nonpayment of any amounts payable under or in respect of the Credit Agreement,
and notice of any failure on the part of any Obligor to perform and comply with
any term or condition of the Credit Agreement, (v) any rights to the
enforcement, assertion or exercise of any right, remedy, power or privilege
under or in respect of the Credit Agreement, (vi) any requirement of diligence
and (vii) notice of acceptance of this Guaranty. The Administrative Agent shall
have the right to bring suit directly against the Guarantor with respect to the
Guaranteed Obligations, either prior to or concurrently with any lawsuit
against, or without bringing suit against, any Obligor.
5. Continuing Guaranty. This Guaranty is a continuing guaranty and
-------------------
shall (a) be irrevocable and remain in full force and effect in accordance with
the terms hereof until all of the Guaranteed Obligations, including those which
might arise at a later date, have been paid in full and are not subject to
rescission or return, (b) be binding upon the Guarantor and its successors and
assigns, and (c) inure to the benefit of and be enforceable by the successors,
transferees and assigns of the Administrative Agent and the Banks permitted by
the Credit Agreement. The Guarantor agrees that in the discharge of its
obligations hereunder no judgment, order, or exhaustion need be obtained, and no
action, suit or proceeding need be brought and no other remedies need be
exhausted against any Obligor or any other person for performance by the
Guarantor of its obligations hereunder
6. Representations. The Guarantor represents and warrants to the
---------------
Administrative Agent as follows:
(a) The Guarantor is a corporation validly existing and in good
standing under the laws of its jurisdiction of incorporation and the execution,
delivery and performance of this Guaranty are within its corporate powers and
are not in contravention of the terms of its charter or bylaws.
(b) The execution, delivery and performance of this Guaranty
have been duly authorized by all requisite corporate action of the Guarantor,
and this Guaranty has been duly executed and delivered by the Guarantor and
constitutes its legal, valid and binding obligation and is enforceable against
the Guarantor in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization or other laws now
or hereafter affecting the rights of creditors.
(c) The execution, delivery and performance of this Guaranty
will not violate or conflict with (i) any provision of any law or regulation
binding on the Guarantor, or any order, judgment, award or decree of any court,
arbitrator or governmental authority binding on the Guarantor, or any securities
issued by the Guarantor, or any mortgage, indenture, lease, contract or other
agreement, instrument or undertaking to which the Guarantor is a party or by
which the Guarantor or any of its assets may be bound, the violation of which
would have a material adverse effect on the business, operations, assets or
financial condition of the Guarantor, or (ii) the certificate of incorporation
or bylaws of the Guarantor, and will not result in, or require, the creation or
imposition of any Lien on any of its property, assets or revenues pursuant
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to the provisions of any such mortgage, indenture, lease, contract or other
agreement, instrument or undertaking.
7. Financial Information; Access.
-----------------------------
(a) So long as the Credit Agreement remains in effect the
Guarantor agrees (i) to provide to the Administrative Agent a copy of all such
reports and financial information pertaining to the Guarantor as shall be filed
by or on behalf of the Guarantor with the Securities and Exchange Commission,
promptly after the same are so filed, and (ii) to provide to the Administrative
Agent such other financial information as the Administrative Agent may
reasonably request.
(b) The Guarantor further agrees to permit the Administrative
Agent reasonable access, upon prior notice and at reasonable times during normal
business hours, to the Guarantor's books, records, and financial or accounting
personnel, to the extent relevant to this Guaranty or the Credit Agreement;
provided, however, that such access shall be in compliance with security and
confidentiality requirements of applicable governmental authorities and the
Guarantor's corporate policies relating to confidential information
8. Merger, Consolidation or Other Transfers.
----------------------------------------
(a) The Guarantor shall not consolidate with or merge into any
other person or convey, transfer or lease all or substantially all of its assets
as an entirety to any person unless:
(i) such successor entity or such person to whom the
conveyance, transfer or lease is made (such successor entity, together with any
successor entity described in Section 8(b) below, being referred to herein as a
"Successor Guarantor") shall expressly assume in writing by instrument or
-------------------
instruments enforceable against it reasonably satisfactory in form and substance
to the Administrative Agent, the due and punctual payment of all obligations of
the Guarantor under this Guaranty with the same effect as if such Successor
Guarantor had originally been named a Guarantor herein or had been a party
hereto;
(ii) immediately after giving effect to such transaction, no
Event of Default shall exist and this Guaranty shall be in full force and
effect; and
(iii) the Successor Guarantor shall have delivered to the
Administrative Agent an opinion of counsel in scope and substance reasonably
satisfactory to it stating that such consolidation, merger, conveyance, transfer
or lease and the assumption agreement required by clause (i) above comply with
this Section 8.
(b) Except as provided in subsection 8(a) above, the Guarantor
shall not assign or delegate its obligations under this Guaranty; provided that
--------
the Guarantor may assign and delegate its obligations under this Guaranty to a
successor entity as a part of the transfer of all or substantially all of the
assets of its Direct TV International Division to such successor entity
(including, without limitation, a Subsidiary of the Guarantor) as an entirety as
long as all of the following conditions have been satisfied:
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(i) such assignment and delegation shall have been approved by
the Administrative Agent and all of the Banks, which consent shall not be
unreasonably withheld;
(ii) the conditions in clauses (i) through (iii) of subsection
8(a) have been satisfied with respect to such assignment and delegation; and
(iii) the Successor Guarantor to whom such transfer, delegation
and assignment is made shall have a credit rating on its senior unsecured debt,
as determined by each of Xxxxx'x Investors Service, Inc. (or any successor
thereto) and Standard & Poor's Ratings Group (or any successor thereto), at
least as favorable as the unsecured debt of the Guarantor at such date after
giving effect to such transfer, assignment and delegation, but in no event lower
than Baa3 by Xxxxx'x Investors Service, Inc. or BBB- by Standard & Poor's
Ratings Group, and, in either case, the rating of such Successor Guarantor's
senior unsecured debt shall not be under review with negative implications by
such rating agency at such date after giving effect to such transfer, assignment
and delegation.
(c) Upon any such consolidation or merger, conveyance,
transfer or lease in accordance with the provisions of (a) or (b) above, the
successor formed by such consolidation or into which the Guarantor is merged, or
the person to which such conveyance, transfer or lease is made, shall succeed
to, and be substituted for, the Guarantor as a Guarantor, with the same effect
as if such Successor Guarantor had been originally named as a Guarantor.
9. Taxes. All payments or reimbursements under this Guaranty and any
-----
instrument or agreement required hereunder shall be made without set-off or
counterclaim and free and clear of and without deduction for any and all present
and future Taxes (as defined below). The Guarantor agrees to cause all such
Taxes to be paid on behalf of any Bank or Administrative Agent directly to the
appropriate governmental authority. If the Guarantor is legally prohibited from
complying with this Section, payments due to such Bank or Administrative Agent
under this Guaranty and any instrument or agreement required hereunder shall be
increased so that, after provisions for Taxes and all Taxes on such increase,
the amounts received by such Bank or Administrative Agent will be equal to the
amounts required under this Guaranty and any instrument or agreement required
hereunder as if no Taxes were due on such payments. The Guarantor shall
indemnify each Bank and Administrative Agent for the full amount of Taxes
payable by such Bank or Administrative Agent and any liabilities (including
penalties, interest and expenses) arising from such Taxes within thirty (30)
days from any written demand by such Bank. The Guarantor shall provide evidence
that all applicable Taxes have been paid to the appropriate taxing authorities
by delivering to Administrative Agent official tax receipts or notarized copies
or other evidence thereof satisfactory to Administrative Agent, within ninety
(90) days after the due date for such Tax payment. Such Bank will designate a
different Lending Office if such designation will avoid the need for, or reduce
the amount of, such payment or reimbursement and will not be otherwise
disadvantageous to such Bank in the sole discretion of such Bank.
For purposes of this Section 9, "Tax" and "Taxes" means (i) all taxes,
levies, imposts, duties, fees or other charges of whatsoever nature however
imposed by any country or any subdivision or authority of or in that country in
any way connected with the Credit Agreement or this Guaranty or any instrument
or agreement required hereunder, and all interest,
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penalties or similar liabilities with respect thereto, except such taxes as are
imposed on or measured by the Administrative Agent's or any Bank's net income or
capital and franchise taxes, by the country or any subdivision or authority of
or in that country in which the Administrative Agent's or such Bank's principal
office or actual Lending Office is located, and (ii) any present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Guaranty.
10. Amendments, Etc. No amendment or waiver of any provision of this
----------------
Guaranty shall in any event be effective with respect to the Administrative
Agent unless the same shall be in writing and signed by the Administrative
Agent.
11. No Waiver; Remedies. No failure on the part of the
-------------------
Administrative Agent to exercise, and no delay in its exercise of, any right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right hereunder by the Administrative Agent preclude any other
or further exercise thereof or the exercise of any other right by it. Subject
to Section 11.1 of the Credit Agreement, the Administrative Agent may
specifically waive any breach of this Guaranty by the Guarantor; provided that
--------
no such waiver shall be effective or binding unless in writing, and that no such
waiver shall constitute a continuing waiver of similar or other breaches.
12. Separability of This Guaranty. In case any term or provision of
-----------------------------
this Guaranty or any application hereof to any circumstance shall, in any
circumstances or jurisdiction and to any extent, be invalid, illegal or
unenforceable, such term or provision shall be ineffective as to such
jurisdiction to the extent of such invalidity, illegality or unenforceability
without invalidating or rendering unenforceable any remaining terms and
provisions hereof or the application of such term or provision to circumstances
or jurisdictions other than those as to which it is held invalid, illegal or
unenforceable. To the extent permitted by applicable law, the Guarantor hereby
waives any provision of law that renders any term or provision hereof invalid,
illegal or unenforceable in any respect.
13. Headings. The headings contained in this Guaranty are for
--------
convenience of reference only and shall not modify, define or limit any of the
terms or provisions hereof.
14. Governing Law. THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF
-------------
THE GUARANTOR, THE ADMINISTRATIVE AGENT AND THE BANKS HEREUNDER SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION 5-
1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES.
15. Proceedings, Etc. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST THE
-----------------
GUARANTOR ARISING OUT OF OR RELATING TO THIS GUARANTY MAY BE BROUGHT IN ANY
STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF NEW YORK, AND
BY EXECUTION AND DELIVERY OF THIS GUARANTY THE GUARANTOR ACCEPTS FOR ITSELF AND
IN
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CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH THIS GUARANTY. The Guarantor hereby designates and appoints
CT Corporation System, presently located at 0000 Xxxxxxxx, Xxx Xxxx, X.X. 00000
as its authorized agent (the "Process Agent") to accept and acknowledge on its
behalf service of any and all process which may be served in any suit, action or
proceeding in any New York State or United States Federal Court sitting in New
York, and to receive and acknowledge on behalf of the Guarantor any Demands made
by the Administrative Agent pursuant to Section 2 hereof. The Guarantor
represents and warrants that the Process Agent has agreed in writing to accept
such appointment and that true copies of such acceptance will be furnished to
the Administrative Agent prior to the Effective Date under the Credit Agreement.
The Guarantor agrees that the failure of the Process Agent to give notice to the
Guarantor of any such service or Demand shall not impair the validity of such
service or Demand or of any judgment rendered in any action or proceeding based
thereon. Service of all process in any such proceeding in any such court and of
any Demand under Section 2 hereof may be made by hand delivery, courier service
or by registered or certified mail, return receipt requested, to the Process
Agent, such service being hereby acknowledged by the Guarantor to be sufficient
for personal jurisdiction in any action against the Guarantor in any such court
and to be otherwise effective and binding service or demand in every respect.
Nothing herein shall affect the right to serve process in any other manner
permitted by law or shall limit the right of the Administrative Agent or any
Bank to bring proceedings against the Guarantor in the courts of any other
jurisdiction.
16. Jury Trial Waiver. THE GUARANTOR AND, BY ITS ACCEPTANCE OF THE
-----------------
BENEFITS HEREOF, THE ADMINISTRATIVE AGENT EACH HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS GUARANTY. The scope of this waiver is intended to be all-
encompassing of any and all disputes that may be filed in any court and that
relate to the subject matter of this transaction, including without limitation
contract claims, tort claims, breach of duty claims and all other common law and
statutory claims. The Guarantor and, by its acceptance of the benefits hereof,
the Administrative Agent each (i) acknowledges that this waiver is a material
inducement for the Guarantor and Administrative Agent to enter into a business
relationship, that the Guarantor and Administrative Agent have already relied on
this waiver in entering into this Guaranty or accepting the benefits thereof, as
the case may be, and that each will continue to rely on this waiver in their
related future dealings, and (ii) further warrants and represents that each has
reviewed this waiver with its legal counsel and that each knowingly and
voluntarily waives its jury trial rights following consultation with legal
counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, EXCEPT BY A WRITTEN INSTRUMENT SPECIFICALLY REFERRING TO
THIS SECTION 16, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS OF THIS GUARANTY. In the event of
litigation, this Guaranty may be filed as a written consent to a trial by the
court.
17. Counterparts. This Guaranty may be executed in any number of
------------
counterparts and by the different parties hereto in separate counterparts, each
of which when so
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executed and delivered shall be deemed to be an original for all purposes; but
all such counterparts together shall constitute but one and the same instrument.
This Guaranty shall become effective as to the Guarantor upon the execution of a
counterpart hereof by the Guarantor and receipt by Administrative Agent of
written or telephonic notification of such execution and authorization of
delivery thereof.
18. Cost and Attorneys Fees. The Guarantor agrees to pay, or cause
-----------------------
to be paid, in addition to the Guaranteed Obligations, on demand, and to save
the Administrative Agent and the Banks harmless against liability for, any and
all costs and expenses (including reasonable fees and disbursements of counsel)
incurred or expended by Administrative Agent or any Bank in connection with the
enforcement of or preservation of any rights under this Guaranty.
19. Effect of Obligor's Bankruptcy. The Guarantor acknowledges and
------------------------------
agrees that any interest on any portion of the Guaranteed Obligations which
accrues after the commencement of any proceeding, voluntary or involuntary,
involving the bankruptcy, insolvency, receivership, reorganization, liquidation
or arrangement of any Obligor (or, if interest on any portion of the Guaranteed
Obligations ceases to accrue by operation of law by reason of the commencement
of said proceeding, such interest as would have accrued on such portion of the
Guaranteed Obligations if said proceeding had not been commenced) shall be
included in the Guaranteed Obligations because it is the intention of the
Guarantor, the Administrative Agent and the Banks that the Guaranteed
Obligations which are guarantied by the Guarantor pursuant to this Guaranty
should be determined without regard to any rule of law or order which may
relieve any Obligor of any portion of such Guaranteed Obligations.
20. Notices. All notices, requests, consents and other
-------
communications under this Guaranty shall be in writing and shall be deemed to
have been given to the Guarantor when received, if hand delivered or sent by
courier service, on the third Business Day after mailing, if mailed by
registered or certified mail, postage prepaid, on the business day of receipt if
telecopied, in each case addressed to the Guarantor at its address set forth
below its signature or to such other address as the Guarantor may designate by
written notice to the Administrative Agent; provided that Demands made by the
Administrative Agent under Section 2 and service of process under Section 15 may
also be given to the Process Agent.
21. Entire Agreement. This Guaranty represents the final agreement
----------------
of the Guarantor with respect to its obligations to the Banks in connection with
the Credit Agreement and may not be contradicted by evidence of prior written
agreements or prior, contemporaneous or subsequent oral agreements of the
Guarantor or any other person. There are no unwritten oral agreements of the
Guarantor in favor of the Banks.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duty
executed as of the date first above written.
XXXXXX ELECTRONICS CORPORATION
By: _______________________
Name: _____________________
Title: ____________________
Address:
Bldg. C1, M/S A170
000 Xxxxx Xxxxxxxxx Xxxx.
Xx Xxxxxxx, XX 00000
Attention: Treasurer
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EXHIBIT E
[FORM OF GUARANTY OF XXXXXXX]
GUARANTY
--------
THIS GUARANTY, dated as of September 20, 2000, is made by XXXXXXX
INVESTMENTS LLC, an exempted company organized and existing under the laws of
the Cayman Islands, the "Guarantor"), in favor of CITICORP USA, INC., a Delaware
---------
corporation, as Administrative Agent for and representative of the financial
institutions party to the credit Agreement defined below (together with its
successors and permitted assignees in such capacity, the "Administrative
--------------
Agent").
-----
RECITALS
--------
A. The Guarantor is an owner, directly or indirectly, of
approximately 24.951% of the equity of SurFin Ltd., an international business
company incorporated under the laws of the Bahamas (the "Borrower"). Pursuant
--------
to that certain Credit Agreement of even date herewith (as it may be amended,
supplemented or otherwise modified from time to time the "Credit Agreement")
----------------
among the Borrower the Designated Subsidiaries (as defined in the Credit
Agreement), the Banks party thereto, the Administrative Agent, as agent for the
Banks and Deutsche Bank AG New York Branch and/or Cayman Islands Branch as
syndication agent, the Banks have agreed to make available a $150,000,000
revolving credit facility to the Borrower and the Designated Subsidiaries (each
an "Obligor" and collectively the "Obligors"), which may be increased to no more
than $225,000,000. The Borrower has advised the Guarantor, the Administrative
Agent and the Banks that the Obligors intend to use the proceeds of the such
revolving credit facility to finance the development in Mexico and various
countries in the Caribbean, Central America and South America of a satellite
television service.
B. The Banks are willing to enter into the Credit Agreement on the
condition that the Guarantor guarantees, jointly and severally with the other
owners (or their affiliates) of the Borrower, the payment of the Borrower's
obligations under the Credit Agreement pursuant to the terms of this Guaranty.
NOW, THEREFORE, in consideration of the foregoing promises and other
good and valuable consideration, receipt and sufficiency of which are
acknowledged, the Guarantor hereby agrees as follows:
1. Definitions. Capitalized terms not otherwise defined in this
-----------
Guaranty shall have the meanings given them in the Credit Agreement.
2. Guaranty.
--------
(a) The Guarantor hereby irrevocably and unconditionally,
guarantees the punctual payment when due of all payment obligations of the
Borrower under the Credit
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Agreement, up to a maximum amount as to principal of US$225,000,000 plus all
interest, fees, indemnities and other amounts payable under the Credit
Agreement, including amounts that would become due but for the operation of the
automatic stay under Section 362(c) of the United States Bankruptcy Code or
similar provisions under the laws of the Bahamas, The Netherlands, the United
Mexican States or other applicable law (collectively, the "Guaranteed
----------
Obligations"). In the event that any of the Guaranteed Obligations shall not be
-----------
paid when due within any specified grace period provided for in the Credit
Agreement, the Guarantor agrees to pay such Guaranteed Obligations within ten
Business Days after the giving by the Administrative Agent to the Guarantor
Notice Agent named in Section 20 hereof and the Process Agent named in Section
15 hereof of notice (a "Demand") demanding payment by the Guarantor, provided
--------
that in the event any such payment is required to be made by the Guarantor
hereunder, the Guarantor may cause such obligation or liability to be paid on
its behalf by any corporation affiliated with it, including the Obligors,
provided that the Guarantor shall nevertheless be unconditionally obligated to
pay such obligation or liability if such affiliate, including the Obligors,
shall fail timely to pay such obligation or liability.
(b) This Guaranty is a guarantee of payment and not of
performance or collection. The obligation of the Guarantor hereunder shall be
independent of the obligation of any other Guarantor (as such term is defined in
the Credit Agreement), all such obligations being joint and several.
(c) The Guarantor shall be subrogated to all rights of the Banks
against the Obligors in respect of any amounts paid by the Guarantor pursuant to
the provisions of this Guaranty; provided, however, that the Guarantor shall not
-------- -------
be entitled to enforce or receive any payments arising out of, or based upon,
such right of subrogation until all the Guaranteed Obligations shall have been
irrevocably and indefeasibly paid in full and no Guaranteed Obligations may
arise in the future.
3. Guaranty Absolute. The liability of the Guarantor under this
-----------------
Guaranty with respect to each and all of the Guaranteed Obligations shall be
irrevocable and shall be absolute and unconditional irrespective of, and shall
not be released, discharged or in any way affected by, any circumstance,
condition or matter (whether or not the Guarantor or any Obligor shall have any
knowledge or notice thereof), including, without limitation:
(a) any amendment, waiver, extension or renewal of, or any
consent to departure from, the Credit Agreement, including, without limitation,
any waiver or consent involving a change in the time, manner or place of payment
of all or any of the Guaranteed Obligations;
(b) any exchange, release or nonperfection of any collateral, or
any release or amendment or waiver of or consent or departure from any other
guaranty or security agreement, for all or any of the Guaranteed Obligations;
(c) any extension of the time for payment by any Obligor or any
other person of any Guaranteed Obligation under the Credit Agreement or any
other document related thereto;
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(d) any failure, omission or delay by the Administrative Agent
or the Banks to enforce, assert or exercise any right, power or remedy conferred
on or available to it;
(e) any inability, lack of authority or legal disability of any
Obligor to perform any agreement, covenant, term or condition contained in the
Credit Agreement for any reason (whether or not the Guarantor shall have any
knowledge or notice thereof), including, without limitation, provisions of any
law or regulation of any jurisdiction (including the Bahamas, The Netherlands
and the United Mexican States) purporting to prohibit or excuse payment or
performance by any Obligor of its obligations under the Credit Agreement;
(f) the voluntary or involuntary liquidation, dissolution, sale
of assets, marshalling of assets and liabilities, receivership, conservatorship,
custodianship, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of or similar
proceeding affecting any Obligor, the Guarantor, the Administrative Agent, the
Banks or any other person or any of their respective properties or creditors, or
any action taken by any trustee or receiver or by any court in any such
proceeding;
(g) any merger or consolidation of any Obligor into or with any
person or any sale, lease or transfer of any of the assets of any Obligor to any
other person;
(h) any change in corporate relationship between any Obligor and
the Guarantor or any termination of any such relationship;
(i) any counterclaim, set-off, deduction or defense any Obligor,
the Guarantor or any other Person may have against the Administrative Agent, the
Banks or any other person other than indefeasible payment in full; and
(j) any other circumstance whatsoever, whether similar or
dissimilar to the foregoing, which might otherwise constitute a legal or
equitable defense available to, or a discharge of, the Guarantor in respect of
this Guaranty.
This Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment by any Obligor, the Guarantor or any
other person of any of the Guaranteed Obligations owed hereunder is rescinded or
must otherwise be returned by the Administrative Agent or the Banks upon the
insolvency, bankruptcy or reorganization of any Obligor, the Guarantor or any
other person, all as though such payment had not been made. If the payment of
any sum required to be made by any Obligor under the Credit Agreement shall at
any time be prevented by reason of a case or proceeding under bankruptcy,
insolvency or other similar law, the Guarantor agrees that, for purposes of this
Guaranty and its obligations hereunder, such sum shall be deemed to be payable
in accordance with the terms of the Credit Agreement, and the Guarantor shall
pay such sum and any other amounts guaranteed hereunder.
4. Waiver by the Guarantor. The Guarantor hereby unconditionally
-----------------------
waives, to the greatest extent permitted by applicable law, (i) any and all
notice of the creation, renewal, extension or accrual of any of the Guaranteed
Obligations and notice of or proof of reliance by the Banks upon this Guaranty,
or acceptance of this Guaranty, and the Guaranteed Obligations, (ii) any
requirement that the Banks exhaust any right or take any action against any
Obligor, any other guarantor or any other person or any collateral, (iii) any
and all rights which the Guarantor
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may have or which at any time hereafter may be conferred upon it, by statute
(including but not limited to any statute of limitations), regulation or
otherwise, to terminate or cancel this Guaranty, (iv) all notices which may be
required by statute, rule of law or otherwise to preserve any rights against the
Guarantor hereunder, including, without limitation, any demand, presentment,
protest, proof or notice of nonpayment of any amounts payable under or in
respect of the Credit Agreement, and notice of any failure on the part of any
Obligor to perform and comply with any term or condition of the Credit
Agreement, (v) any rights to the enforcement, assertion or exercise of any
right, remedy, power or privilege under or in respect of the Credit Agreement,
(vi) any requirement of diligence and (vii) notice of acceptance of this
Guaranty. The Administrative Agent shall have the right to bring suit directly
against the Guarantor with respect to the Guaranteed Obligations, either prior
to or concurrently with any lawsuit against, or without bringing suit against,
any Obligor.
5. Continuing Guaranty. This Guaranty is a continuing guaranty and
-------------------
shall (a) be irrevocable and remain in full force and effect in accordance with
the terms hereof until all of the Guaranteed Obligations, including those which
might arise at a later date, have been paid in full and are not subject to
rescission or return, (b) be binding upon the Guarantor and its successors and
assigns, and (c) inure to the benefit of and be enforceable by the successors,
transferees and assigns of the Administrative Agent and the Banks permitted by
the Credit Agreement. The Guarantor agrees that in the discharge of its
obligations hereunder no judgment, order, or exhaustion need be obtained, and no
action, suit or proceeding need be brought and no other remedies need be
exhausted against any Obligor or any other person for performance by the
Guarantor of its obligations hereunder
6. Representations. The Guarantor represents and warrants to the
---------------
Administrative Agent as follows:
(a) The Guarantor is an exempted company validly existing and in
good standing under the laws of the Cayman Islands and the execution, delivery
and performance of this Guaranty are within its corporate powers and are not in
contravention of the terms of its Certificate of Incorporation, Memorandum of
Association or Articles of Association.
(b) The execution, delivery and performance of this Guaranty
have been duly authorized by all requisite corporate action of the Guarantor,
and this Guaranty has been duly executed and delivered by the Guarantor and
constitutes its legal, valid and binding obligation and is enforceable against
the Guarantor in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization or other laws now
or hereafter affecting the rights of creditors.
(c) The execution, delivery and performance of this Guaranty
will not violate or conflict with (i) any provision of any law or regulation
binding on the Guarantor, or any order, judgment, award or decree of any court,
arbitrator or governmental authority binding on the Guarantor or any securities
issued by the Guarantor, or any mortgage, indenture, lease, contract or other
agreement, instrument or undertaking to which the Guarantor is a party or by
which the Guarantor or any of its assets may be bound, the violation of which
would have a material adverse effect on the business, operations, assets or
financial condition of the Guarantor or (ii) the Certificate of Incorporation,
Memorandum of Association or Articles of Association of
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the Guarantor, and will not result in, or require, the creation or imposition of
any Lien on any of its property, assets or revenues pursuant to the provisions
of any such mortgage, indenture, lease, contract or other agreement, instrument
or undertaking.
7. Financial Information; Access. So long as the Credit Agreement
-----------------------------
remains in effect the Guarantor agrees (i) to provide to the Administrative
Agent, upon its reasonable request from time to time, a copy of all such reports
and financial information pertaining to the Guarantor as shall be filed by or on
behalf of the Guarantor with the Securities and Exchange Commission, promptly
after the same are so filed, and (ii) to permit the Administrative Agent
reasonable access, upon prior notice and at reasonable times during normal
business hours, to the Guarantor's books and records, to the extent relevant to
this Guaranty or the Credit Agreement; provided, however, that such access shall
be in compliance with security and confidentiality requirements of applicable
governmental authorities and the Guarantor's corporate policies relating to
confidential information.
8. Merger, Consolidation or Other Transfers.
----------------------------------------
(a) The Guarantor shall not consolidate with or merge into any
other person or convey, transfer or lease all or substantially all of its assets
as an entirety to any person unless:
(i) such successor entity or such person to whom the
conveyance, transfer or lease is made (a "Successor Guarantor") shall expressly
-------------------
assume in writing by instrument or instruments enforceable against it reasonably
satisfactory in form and substance to the Administrative Agent, the due and
punctual payment of all obligations of the Guarantor under this Guaranty with
the same effect as if such Successor Guarantor had originally been named a
Guarantor herein or had been a party hereto;
(ii) immediately after giving effect to such transaction, no
Event of Default shall exist and this Guaranty shall be in full force and
effect; and
(iii) the Successor Guarantor shall have delivered to the
Administrative Agent an opinion of counsel in scope and substance reasonably
satisfactory to it stating that such consolidation, merger, conveyance, transfer
or lease and the assumption agreement required by clause (i) above comply with
this Section 8.
(b) Upon any such consolidation or merger, conveyance,
transfer or lease in accordance with the provisions of (a) above, the successor
formed by such consolidation or into which the Guarantor is merged, or the
person to which such conveyance, transfer or lease is made, shall succeed to,
and be substituted for, the Guarantor as a Guarantor, with the same effect as if
such successor had been originally named as a Guarantor.
9. Taxes. All payments or reimbursements under this Guaranty and
-----
any instrument or agreement required hereunder shall be made without set-off or
counterclaim and free and clear of and without deduction for any and all present
and future Taxes (as defined below). The Guarantor agrees to cause all such
Taxes to be paid on behalf of any Bank or Administrative Agent directly to the
appropriate governmental authority. If the Guarantor is legally prohibited from
complying with this section, payments due to such Bank or
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Administrative Agent under this Guaranty and any instrument or agreement
required hereunder shall be increased so that, after provisions for Taxes and
all Taxes on such increase, the amounts received by such Bank or Administrative
Agent will be equal to the amounts required under this Guaranty and any
instrument or agreement required hereunder as if no Taxes were due on such
payments. The Guarantor shall indemnify each Bank and Administrative Agent for
the full amount of Taxes payable by such Bank or Administrative Agent and any
liabilities (including penalties, interest and expenses) arising from such Taxes
within thirty (30) days from any written demand by such Bank. The Guarantor
shall provide evidence that all applicable Taxes have been paid to the
appropriate taxing authorities by delivering to Administrative Agent official
tax receipts or notarized copies or other evidence thereof reasonably
satisfactory to Administrative Agent, within ninety (90) days after the due date
for such Tax payment. Such Bank will designate a different Lending Office if
such designation will avoid the need for, or reduce the amount of, such payment
or reimbursement and will not be otherwise disadvantageous to such Bank in the
sole discretion of such Bank.
For purposes of this Section 9, "Tax" and "Taxes" means (i) all taxes,
levies, imposts, duties, fees or other charges of whatsoever nature however
imposed by any country or any subdivision or authority of or in that country in
any way connected with the Credit Agreement or this Guaranty or any instrument
or agreement required hereunder, and all interest, penalties or similar
liabilities with respect thereto, except such taxes as are imposed on or
measured by the Administrative Agent's or any Bank's net income or capital and
franchise taxes, by the country or any subdivision or authority of or in that
country in which the Administrative Agent's or such Bank's principal office or
actual Lending Office is located, and (ii) any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Guaranty.
10. Amendments, Etc. No amendment or waiver of any provision of this
----------------
Guaranty shall in any event be effective with respect to the Administrative
Agent unless the same shall be in writing and signed by the Administrative
Agent.
11. No Waiver; Remedies. No failure on the part of the
-------------------
Administrative Agent to exercise, and no delay in its exercise of, any right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right hereunder by the Administrative Agent preclude any other
or further exercise thereof or the exercise of any other right by it. Subject
to Section 11.1 of the Credit Agreement, the Administrative Agent may
specifically waive any breach of this Guaranty by the Guarantor; provided that
--------
no such waiver shall be effective or binding unless in writing, and that no such
waiver shall constitute a continuing waiver of similar or other breaches.
12. Separability of This Guaranty. In case any term or provision of
-----------------------------
this Guaranty or any application hereof to any circumstance shall, in any
circumstances or jurisdiction and to any extent, be invalid, illegal or
unenforceable, such term or provision shall be ineffective as to such
jurisdiction to the extent of such invalidity, illegality or unenforceability
without invalidating or rendering unenforceable any remaining terms and
provisions hereof or the application of such term or provision to circumstances
or jurisdictions other than those as to which it is held invalid, illegal or
unenforceable. To the extent permitted by applicable law, the
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Guarantor hereby waives any provision of law that renders any term or provision
hereof invalid, illegal or unenforceable in any respect.
13. Headings. The headings contained in this Guaranty are for
--------
convenience of reference only and shall not modify, define or limit any of the
terms or provisions hereof.
14. Governing Law. THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF
-------------
THE GUARANTOR, THE ADMINISTRATIVE AGENT AND THE BANKS HEREUNDER SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION 5-
1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES.
15. Proceedings, Etc. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST THE
-----------------
GUARANTOR ARISING OUT OF OR RELATING TO THIS GUARANTY MAY BE BROUGHT IN ANY
STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF NEW YORK, AND
BY EXECUTION AND DELIVERY OF THIS GUARANTY THE GUARANTOR ACCEPTS FOR ITSELF AND
IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH THIS GUARANTY. The Guarantor hereby designates and
appoints CT Corporation System, presently located at 0000 Xxxxxxxx, Xxx Xxxx, XX
00000, as its authorized agent (the "Process Agent") to accept and acknowledge
on its behalf service of any and all process which may be served in any suit,
action or proceeding in any New York State or United States Federal Court
sitting in New York, and to receive and acknowledge on behalf of the Guarantor
any Demands made by the Administrative Agent pursuant to Section 2 hereof. The
Guarantor represents and warrants that the Process Agent has agreed in writing
to accept such appointment and that true copies of such acceptance will be
furnished to the Administrative Agent prior to the Effective Date under the
Credit Agreement. The Guarantor agrees that the failure of the Process Agent to
give notice to the Guarantor of any such service or Demand shall not impair the
validity of such service or Demand or of any judgment rendered in any action or
proceeding based thereon. Service of all process in any such proceeding in any
such court and of any Demand under Section 2 hereof may be made by hand
delivery, courier service or by registered or certified mail, return receipt
requested, to the Process Agent, such service being hereby acknowledged by the
Guarantor to be sufficient for personal jurisdiction in any action against the
Guarantor in any such court and to be otherwise effective and binding service or
demand in every respect. Nothing herein shall affect the right to serve process
in any other manner permitted by law or shall limit the right of the
Administrative Agent or any Bank to bring proceedings against the Guarantor in
the courts of any other jurisdiction.
16. Jury Trial Waiver. THE GUARANTOR AND, BY ITS ACCEPTANCE OF THE
-----------------
BENEFITS HEREOF, THE ADMINISTRATIVE AGENT EACH HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS GUARANTY. The scope of this
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waiver is intended to be all-encompassing of any and all disputes that may be
filed in any court and that relate to the subject matter of this transaction,
including without limitation contract claims, tort claims, breach of duty claims
and all other common law and statutory claims. The Guarantor and, by its
acceptance of the benefits hereof, the Administrative Agent each (i)
acknowledges that this waiver is a material inducement for the Guarantor and
Administrative Agent to enter into a business relationship, that the Guarantor
and Administrative Agent have already relied on this waiver in entering into
this Guaranty or accepting the benefits thereof, as the case may be, and that
each will continue to rely on this waiver in their related future dealings, and
(ii) further warrants and represents that each has reviewed this waiver with its
legal counsel and that each knowingly and voluntarily waives its jury trial
rights following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, EXCEPT BY A
WRITTEN INSTRUMENT SPECIFICALLY REFERRING TO THIS SECTION 16, AND THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
OF THIS GUARANTY. In the event of litigation, this Guaranty may be filed as a
written consent to a trial by the court.
17. Counterparts. This Guaranty may be executed in any number of
------------
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed to be an original for
all purposes; but all such counterparts together shall constitute but one and
the same instrument. This Guaranty shall become effective as to the Guarantor
upon the execution of a counterpart hereof by the Guarantor and receipt by
Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
18. Cost and Attorneys Fees. The Guarantor agrees to pay, or cause
-----------------------
to be paid, in addition to the Guaranteed Obligations, on demand, and to save
the Administrative Agent and the Banks harmless against liability for, any and
all costs and expenses (including reasonable fees and disbursements of counsel
incurred or expended by Administrative Agent or any Bank in connection with the
enforcement of or preservation of any rights under this Guaranty.
19. Effect of Borrower's Bankruptcy. The Guarantor acknowledges and
-------------------------------
agrees that any interest on any portion of the Guaranteed Obligations which
accrues after the commencement of any proceeding, voluntary or involuntary,
involving the bankruptcy, insolvency, receivership, reorganization, liquidation
or arrangement of the Borrower (or, if interest on any portion of the Guaranteed
Obligations ceases to accrue by operation of law by reason of the commencement
of said proceeding, such interest as would have accrued on such portion of the
Guaranteed Obligations if said proceeding had not been commenced) shall be
included in the Guaranteed Obligations because it is the intention of the
Guarantor, the Administrative Agent and the Banks that the Guaranteed
Obligations which are guarantied by the Guarantor pursuant to this Guaranty
should be determined without regard to any rule of law or order which may
relieve the Borrower of any portion of such Guaranteed Obligations.
20. Notices. All notices, requests, consents and other
-------
communications under this Guaranty shall be in writing and shall be deemed to
have been given to the Guarantor when received, if hand delivered or sent by
courier service, on the third Business Day after mailing, if
E-8
mailed by registered or certified mail, postage prepaid, on the business day of
receipt if telecopied, in each case addressed to the Guarantor in care of Finser
Corporation, as Guarantor Notice Agent, at Xxxxxx House, Xxxxxxx Street &
Victoria Ave., Nassau, Bahamas, Attention: Xxxx XxXxxxxx (with a copy to
Despacho de Especialistas en Abogacia, S.A., P.O. Box 1884-1000, De la Casa
Italia, 100 metros al este y 50 al norte, Numero 000, Xxx Xxxx, Xxxxx Xxxx,
Attention: Lic. Xxxx Xxxxx Xxxx (with copies to: (i) Galaxy Latin America, LLC,
0000 X. Xxxxxxxxxx Xxxx., 00xx Xxxxx, Xxxx Xxxxxxxxxx, XX 00000, Attention: X.X.
Xxxxxxx and (ii) c/o Finser Corporation, 000 Xxxxxxxx Xxx, 0xx Xxxxx, Xxxxx
Xxxxxx, XX 00000, Attention: General Counsel, or to such other address in the
Bahamas or the United States as the Guarantor may designate by written notice to
the Administrative Agent; provided that Demands made by the Administrative Agent
under Section 2 and service of process under Section 15 may also be given to the
Process Agent. The Guarantor hereby designates and appoints Finser Corporation
as its agent (the "Guarantor Notice Agent") to receive and acknowledge on behalf
of the Guarantor any notice, requests, consents and other communications given
under this Guaranty.
21. Judgment. (a) If for the purposes of obtaining judgment in any
--------
court it is necessary to convert a sum due hereunder in Dollars into another
currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the respective Bank or the
Administrative Agent could purchase Dollars with such other currency at New
York, New York, on the Business Day preceding that on which final judgment is
given.
(b) The obligation of the Guarantor in respect of any sum due from it
to Administrative Agent or any Bank hereunder shall, notwithstanding any
judgment in a currency other than Dollars, be discharged only to the extent that
on the Business Day following receipt by the Administrative Agent or any Bank of
any sum adjudged to be so due in such other currency the Administrative Agent or
such Bank may in accordance with normal banking procedures purchase Dollars with
such other currency; if the Dollars so purchased are less than the sum
originally due to the Administrative Agent or such Bank in Dollars, the
Guarantor agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify the Administrative Agent or such Bank against such loss,
and if the Dollars so purchased exceed the sum originally due to the
Administrative Agent or such Bank in Dollars, the Administrative Agent or such
Bank agrees to remit to the Guarantor such excess.
22. No Immunity. To the extent that the Guarantor has or hereafter
-----------
may acquire any immunity from jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, the Guarantor hereby irrevocably waives such immunity in
respect of its obligations under this Guaranty and, without limiting the
generality of the foregoing, agrees that the waivers set forth in this Section
22 shall have the fullest scope permitted under the Foreign Sovereign Immunities
Act of 1976 of the United States and are intended to be irrevocable for purposes
of such Act.
23. Entire Agreement. This Guaranty represents the final agreement
----------------
of the Guarantor with respect to its obligations to the Banks in connection with
the Credit Agreement and may not be contradicted by evidence of prior written
agreements or prior, contemporaneous
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or subsequent oral agreements of the Guarantor or any other person. There are no
unwritten oral agreements of the Guarantor in favor of the Banks.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duty
executed as of the date first above written.
XXXXXXX INVESTMENTS LLC
By: _______________________
Name: _____________________
Title: ____________________
By: _______________________
Name: _____________________
Title: ____________________
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EXHIBIT F-1
[FORM OF OPINION OF BAHAMIAN COUNSEL]
[THE LETTERHEAD OF BAHAMIAN COUNSEL]
______________, 2000
Citicorp USA, Inc., as Administrative Agent
Xxx Xxxxx Xxxxxx
Xxxx Xxxxxx Xxxx, XX 00000
and
The Banks Listed on
Schedule A Hereto
Re: Credit Agreement dated as of September 20, 2000 among SurFin
Ltd., the Designated Subsidiaries (as defined therein), the Banks
named therein, Citicorp USA, Inc., as Administrative Agent, and
Deutsche Bank AG New York Branch and/or Cayman Islands Branch, as
Syndication Agent
Ladies and Gentlemen:
We are Attorneys-at-law practicing and qualified to practice in The
Commonwealth of The Bahamas ("The Bahamas") and to advise on the laws of The
Bahamas.
We have acted as Bahamian counsel to SurFin Ltd., an International
Business company organized and existing under the laws of The Bahamas (the
"Borrower") in connection with that certain Credit Agreement dated as of
September 20, 2000 (the "Credit Agreement") among the Borrower, the Designated
Subsidiaries (as defined therein) the banks named therein ("Banks"), Citicorp
USA, Inc., as Administrative Agent, and Deutsche Bank AG New York Branch and/or
Cayman Islands Branch, as Syndication Agent. This opinion is rendered to you in
compliance with Section 5(a)(vi)(A) of the Credit Agreement. Capitalized terms
used herein without definition have the same meanings as in the Credit
Agreement.
In our capacity as such counsel, we have examined originals, or copies
identified to our satisfaction as being true copies, of such records, documents
or other instruments as in our judgment are necessary or appropriate to enable
us to render the opinions expressed below. These records, documents and
instruments included the following:
(a) The Certificate of Incorporation of the Borrower, as amended to
date;
F1-1
(b) The Memorandum and Articles of Association of the Borrower, as
amended to date;
(c) All records of proceedings and actions of the Board of Directors
of the Borrower relating to the Credit Agreement and the transactions
contemplated thereby; and
(d) The Credit Agreement.
For the purposes of this opinion, we have assumed:
(a) that all parties, other than the Borrower, have the capacity,
power and authority to enter into the Credit Agreement and the transactions
contemplated thereby and the Credit Agreement and the transactions
contemplated thereby have been duly authorized and executed by such
parties;
(b) the accuracy and completeness of all factual representations made
in the Credit Agreement and other documents reviewed by us;
(c) due compliance of the Credit Agreement with the laws of the State
of New York or any other relevant jurisdiction other than The Bahamas;
(d) the validity and binding effect of the Credit Agreement and the
transactions contemplated under the laws of the State of New York; and
(e) the genuineness of all signatures on original and certified
documents, and the conformity to original or certified documents of all
documents submitted to us as conformed or photostatic copies.
We have investigated such questions of law for the purpose of
rendering this opinion as we have deemed necessary. We are opining herein as to
the effect on the subject transactions of only the laws of The Bahamas in force
on the date of this opinion.
On the basis of the foregoing, and in reliance thereon, and subject to
the limitations, qualifications, assumptions and exceptions set forth herein, we
are of the opinion that:
1. The Borrower is an International Business Company duly organized,
validly existing and in good standing under the laws of The Bahamas and has all
requisite corporate power and authority to own and operate its properties and to
carry on its business as now conducted.
2. The Borrower has all requisite corporate power and authority to
execute and deliver the Credit Agreement and to carry out the transactions
contemplated by, and perform its obligations under, the Credit Agreement.
F1-2
3. The execution and delivery of the Credit Agreement and the
performance thereof have been duly authorized by all necessary institutional and
legal action, including all corporate action on the part of the Borrower. The
Credit Agreement has been duly executed and delivered by the Borrower.
4. Neither the execution and delivery of the Credit Agreement by the
Borrower nor the consummation of the transactions contemplated by the Credit
Agreement nor the compliance with the terms and conditions thereof by the
Borrower conflicts with, results in a breach or violation of, or constitutes a
default under, any of the terms, conditions or provisions of the Certificate of
Incorporation or Memorandum and Articles of Association of the Borrower, any
term of any order, writ, judgment or decree known to us of The Bahamas or any
governmental authority thereof or therein to which the Borrower is a party or by
which any of its properties or assets are bound, or any present statute, law,
rule, regulation, directive, guideline or policy statement of The Bahamas or any
governmental authority thereof or therein binding on the Borrower.
5. No consents, licenses or approvals of, authorizations by, or
registrations, recordations, declarations or filings with, The Bahamas or any
governmental authority thereof or therein are required by the Borrower in
connection with the execution and delivery by the Borrower of the Credit
Agreement and the performance by the Borrower of the Credit Agreement or the
extensions of credit thereunder or the payment by the Borrower of its
obligations thereunder (including, without limitation, any governmental
authorization, license, approval or consent required by exchange regulations to
enable the Borrower punctually to pay its obligations under the Credit Agreement
in U.S. dollars) or the consummation of any of the other transactions
contemplated by the Credit Agreement.
6. The Credit Agreement is in proper legal form under the laws of The
Bahamas for the enforcement thereof in accordance with its terms against the
Borrower under such laws.
7. To the best of our knowledge, there are no actions, suits or
proceedings pending or threatened against the Borrower.
8. The Borrower is, under the laws of The Bahamas, subject to civil
and commercial law with respect to its obligations under the Credit Agreement.
9. The choice by the parties to the Credit Agreement of the law of
the State of New York is a valid choice of law under Bahamian law, and
accordingly, New York substantive law will be applied by the courts of The
Bahamas if the Credit Agreement or any claim thereunder come under their
jurisdiction.
10. The submission to jurisdiction by the Borrower, the appointment
of the agent for service of process by the Borrower and the designation of the
agent for service of process contained in Section 11.19 of the Credit Agreement
are valid and effective under the laws of The Bahamas and are irrevocably
binding on the Borrower.
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11. The Courts of The Bahamas would recognize as a valid judgment, a
final and conclusive judgment obtained in a state or United States federal court
in the State of New York or United States of America against the Borrower for a
sum of money (other than a sum of money payable in respect of multiple damages,
taxes or other charges of a like nature or in respect of a fine or other
penalty) and would, upon action duly instituted in The Bahamas by the
Administrative Agent or the Banks against the Borrower, give a judgment based on
the judgment of the Foreign Courts provided that (as) such Foreign Courts had
proper jurisdiction over the parties subject to such judgment; (b) such Foreign
Courts did not contravene the rules of natural justice of The Bahamas; (c) such
judgment was not obtained by fraud; (d) the enforcement of the judgment in The
Bahamas would not be contrary to the public policy of The Bahamas; (e) no
admissible evidence relevant to the action is submitted prior to the rendering
of the judgment by the Courts of The Bahamas; and (f) the correct procedures
applicable under the laws of The Bahamas are adhered to.
12. Under current law, the Borrower is permitted to make all payments
under the Credit Agreement free and clear of, and without deduction or
withholding for or on account of, any taxes, levies, imposts, duties, fees,
assessments or other charges of the Bahamian or any governmental authority
thereof or therein or by any federation or association of or with which The
Bahamas may be a member or associated, and all such payments in the hands of the
Banks will not be subject to any such taxes, levies, imposts, duties, fees,
assessments or other charges. The Credit Agreement is not subject to any stamp
or documentary tax or other similar charge, including but not limited to any
registration or stamp tax of the Bahamian or any governmental authority thereof
or therein. None of the Banks is or will be deemed to be resident, domiciled,
carrying on business or subject to taxation in The Bahamas by reason of the
execution, performance or enforceability or admissibility in evidence of the
Credit Agreement. In the Bahamas, it is not necessary that the Credit Agreement
or any other document be filed or recorded, or that any tax or duty be paid.
13. All obligations of the Borrower to pay the principal of and
interest under the Credit Agreement and all other amounts which may become due
under the Credit Agreement constitute direct and unconditional obligations of
the Borrower, and rank at least pari passu in priority of payment with all other
unsecured Indebtedness of the Borrower.
Our opinions in paragraphs 4 and 5 above as to compliance with certain
statutes, rules and regulations and as to the lack of any required consents or
approvals of, authorizations by, or registrations, declarations or filings with
certain governmental authorities are based upon a review of those statutes,
rules and regulations which, in our experience, are normally applicable to
transactions of the type contemplated by the Credit Agreement.
Our opinion that an obligation or document is enforceable means that
the obligation or document is of a type and form which courts in the
Commonwealth of The Bahamas will enforce. It does not mean that the obligation
or document can necessarily be enforced in accordance with its terms in all
circumstances. In particular:
(i) equitable remedies, such as injunctions and orders of specific
performance, are discretionary; and
F1-4
(ii) the enforceability of an obligation, document or security
interest may be affected by statutes of limitation, by estoppel and
similar principles, by laws concerning insolvency, bankruptcy,
liquidation, enforcement of security interests or reorganization, or
by other laws generally affecting creditors' rights.
This opinion is rendered only to Administrative Agent and Banks and is
solely for their benefit in connection with the above transactions. This
opinion may not be relied upon by Administrative Agent or Banks for any other
purpose, or quoted to or relied upon by any other person, firm or corporation
for any purpose without our prior written consent. You may, however, deliver a
copy of this opinion to permitted assignees of all or a portion of a Bank's
rights and obligations under the Credit Agreement in connection with such
assignment and to any financial institution who becomes a party to the Credit
Agreement in connection with a permitted increase in the amount of the Total
Commitment and such assignees and financial institutions may rely hereon. This
opinion may also be disclosed to regulatory or other governmental authorities
having jurisdiction over you requesting (or requiring) such disclosure.
Yours Sincerely,
F1-5
SCHEDULE A
Citibank, N.A.
Deutsche Bank AG New York Branch and/or Cayman Islands Branch
Schedule A-1
EXHIBIT F-2
[FORM OF OPINION OF NETHERLANDS COUNSEL]
[THE LETTERHEAD OF NETHERLANDS COUNSEL]
_______________, 2000
To: Citicorp USA, Inc. as Agent
Xxx Xxxxx Xxxxxx
Xxxx Xxxxxx Xxxx, XX 00000
Xxxxxx Xxxxxx of America
and the Banks listed on Schedule 2 hereto
London [_] September 2000
Dear Sirs,
We have acted as legal advisors to White Holding B.V., having its
statutory seat and registered office in Amsterdam (the "Company"), for the
purpose of rendering an opinion on certain matters of Dutch law in connection
with a credit agreement (the "Credit Agreement") dated as of 20 September 2000
among SurFin Ltd., the Designated Subsidiaries, the Banks, Citicorp USA, Inc.,
as the Administrative Agent, and Deutsche Bank AG New York Branch and/or Cayman
Islands Branch, as the Syndication Agent.
For the purposes of this opinion, we have examined and relied only on the
Credit Agreement and on the documents listed in Schedule 1, which shall form
part of this opinion.
The document listed in Schedule 1 are hereinafter referred to as the
"Certificates".
Unless otherwise defined in this opinion or unless the context otherwise
requires, words and expressions defined in the Credit Agreement shall have the
same meanings when used in this opinion.
In connection with such examination and in giving this opinion, we have
assumed:
Schedule F2-1
(i) the genuineness of the signatures to the Credit Agreement and the
Certificates, the authenticity and completeness of the Credit
Agreement and the Certificates submitted to us as originals, the
conformity to the original documents of the Credit Agreement and
the Certificates submitted to us as copies and the authenticity
and completeness of those original documents;
(ii) the legal capacity (handelingsbekwaamheid) of the natural persons
acting on behalf of the parties, the due incorporation and valid
existence of, the power, authority and legal rights of, and the
due authorisation and execution of the Credit Agreement and the
power of attorney referred to in Schedule 1 paragraph (5)
inclusive by, the parties thereto (other than the Company) under
any applicable law (other than Dutch law);
(iii) the due compliance with all matters of, and the validity, binding
effect and enforceability of the Credit Agreement and the powers
of attorney referred to in Schedule 1 under, any applicable law
(other than Dutch law) and in any jurisdiction (other than The
Netherlands) in which an obligation under the Credit Agreement
falls to be performed;
(iv) the accuracy, completeness, validity and binding effect of the
Certificates and the matters certified or evidenced thereby at the
date hereof and any other relevant date; and
(v) the due execution by the parties thereto of the Credit Agreement
submitted to and examined by us in draft in the form of those
drafts.
This opinion is given only with respect to Dutch law as generally
interpreted and applied by the Dutch courts at the date of this opinion. As to
matters of fact we have relied on the Certificates and the representations and
warranties contained in or made pursuant to the Credit Agreement and the
Certificates. We do not express an opinion on the completeness or accuracy of
the representations or warranties made by the parties to the Credit Agreement,
matters of fact, matters of foreign law, international law, including, without
limitation, the law of the European Union, and anti-trust and competition law,
except to the extent that those representations and warranties and matters of
fact and law are explicitly covered by the opinions below. No opinion is given
on commercial, accounting or non-legal matters or on the ability of the parties
to meet their financial or other obligations under the Credit Agreement.
Based on and subject to the foregoing, and subject to the qualifications
set out below and the matters of fact, documents or events not disclosed to us,
we express the following opinions:
Schedule F2-2
1 The Company is a private company with limited liability (besloten
vennootschap met beperkte aansprakelijkheid), duly incorporated
and validly existing under the laws of The Netherlands.
2 The Company has the corporate power and authority to execute the
Credit Agreement, to perform its obligations thereunder and to
consummate the transactions contemplated therein.
3 The Company has taken all necessary corporate action (including
shareholders action) to authorise the execution of the Credit
Agreement, the performance of its obligations thereunder and the
consummation of the transactions contemplated therein.
4 The Credit Agreement when signed by [______________] pursuant to
the Company's power of attorney evidenced by the Board Resolution
referred to in Schedule 1 paragraph (5), has been signed on
behalf of the Company in accordance with applicable law of The
Netherlands.
5 It is not necessary in order to ensure the validity,
enforceability or admissibility in evidence of the Credit
Agreement against the Company in the courts of The Netherlands,
that the Credit Agreement or any other document in connection
therewith be filed, registered or recorded with any governmental,
judicial or public bodies or authorities in The Netherlands or
that any other action be taken in The Netherlands.
6 The execution by the Company of the Credit Agreement; the
performance by the Company of its obligations thereunder and the
consummation of the transactions contemplated therein do not
conflict with or result in a violation of any provision of the
Articles of Association of the Company or any provision of, or
rule or regulation under, the law of The Netherlands, applicable
to companies generally.
7 No authorisations, consents, approvals, licenses or exemptions
from governmental, judicial or public bodies or authorities in
The Netherlands are required for the execution of the Credit
Agreement by the parties thereto, the performance by the Company
of its obligations thereunder and the consummation of
transactions contemplated therein.
8 The Credit Agreement is in proper form for its enforcement
thereof in accordance with its terms against the Company in the
courts of The Netherlands.
The opinions expressed above are subject to the following
qualifications:
Schedule F2-3
(A) Our opinions in paragraphs 2 to 8 inclusive above in respect of
the Letters of Credit facility set forth in Sections 2.11 to 2.17
inclusive of the Credit Agreement specifically assume that
Section 2.13 (e) of the Credit Agreement shall be adhered to and
we express no opinion as per the opinions in paragraphs 2 to 8
inclusive above under the law of The Netherlands of the Company's
engaging in the activities contemplated in the Letters of Credit
facility set forth in Sections 2.11 to 2.17 inclusive of the
Credit Agreement without a license from the Netherlands Central
Bank pursuant to, or an exemption from the relevant prohibitions
under, the Netherlands Credit Supervision Act (Wet Toezicht
Kredietwezen 1992).
(B) Our opinions in paragraphs 2 to 8 inclusive above in respect of
the Company being a borrower under the Loans are based on the
fact that the Loans are for a term greater than two years, and
specifically assume that the Banks (i) are subject to adequate
banking supervision in their respective countries of origin or
establishment, as such a standard would be applied by the
Netherlands Central Bank, or (ii) are companies regularly active
in the financial markets in a professional manner and for their
own account, as such a standard would be applied by the
Netherlands Central Bank. For the purpose of (i), if a Bank or
its offices through which it acts is subject to national or
federal banking supervision in one of the G-10 countries, this is
in the opinion of the Netherlands Central Bank considered to be
adequate supervision.
(C) Our opinions in paragraphs 2 to 8 inclusive above in respect of
the Company's issuing promissory notes, if so required by any
Bank, under Section 2.7 of the Credit Agreement specifically
assume that such notes are or will be offered and at all times
thereafter be maintained in denominations of at least NLG 100,000
or the counter value thereof in a foreign currency.
(D) Our opinions expressed herein are subject to and limited by
applicable bankruptcy, insolvency, reorganisation, moratorium or
other laws relating to or affecting the protection or enforcement
of priorities and creditors' rights generally.
(E) The choice of New York law to govern the Credit Agreement would
be upheld by the courts of The Netherlands, except to the extent
that, pursuant to the rules of Netherlands private international
law (and those of the Convention on the Law Applicable to
Contractual Relations of 19 June 1980 (the "Rome Convention"),
(a) in the case of a contract governed by the law of a country
chosen by the parties, effect may be given to the mandatory rules
of another country, with which the transaction has a close
connection, if and insofar as, under the law of such other
country, those rules must be applied whatever the law applicable
to the contract (article 7 of the Rome Convention) and (b) any of
the terms or conditions of the Credit Agreement or any provision
of any law (other than Netherlands law) applicable thereto are
manifestly incompatible with the public policy of The Netherlands
(article 16 of the Rome Convention).
Schedule F2-4
(F) A foreign judgement will not be automatically enforceable in The
Netherlands and it will be necessary to bring the matter and
relitigate the same before the courts of The Netherlands which
may give such effect to such foreign judgement as they deem
appropriate.
(G) The enforcement in The Netherlands of the Credit Agreement is
subject to the Netherlands rules of civil procedure as applied by
the courts in The Netherlands.
(H) The availability in the courts of The Netherlands of equitable
remedies such as injunction and specific performance is at the
discretion of the courts.
(I) Netherlands courts may render judgements for a monetary amount in
foreign currencies, but those foreign currency amounts may until
1 January 2002 be converted into Netherlands Guilders or Euro for
enforcement purposes (and after that date in Euro). Foreign
currency amounts claimed in a Netherlands suspension of payment
(surseance) or bankruptcy (faillissement) proceeding will prior
to said date be converted into Netherlands Guilders or Euro (and
after that date in Euro) at the rate prevailing at the
commencement of such proceeding.
(J) The courts of The Netherlands may stay or refer proceedings if
concurrent proceedings are being brought elsewhere.
(K) Pursuant to the Netherlands rules of corporate benefit, financial
assistance and fraudulent preference, the validity of a legal act
(such as the execution of an agreement or the giving of a
guarantee) performed by a Netherlands company and/or governed by
Netherlands law may be contested. Without purporting to be
comprehensive, we would particularly draw your attention to the
following points:
(i) the validity of a legal act performed by a company may be
contested (by such company) if, (a) as a result, the
company's object was exceeded, and (b) the other party was
aware, or, without personal investigation, should have been
aware thereof;
(ii) if a legal act performed by a company is prejudicial to the
interests of the creditors of the company, the validity of
such legal act may in certain circumstances be contested by
any of such creditors or the receiver in bankruptcy
(curator) of the company.
(L) Delivery of documents is not a concept of Netherlands law and we
have therefore assumed the due delivery of the Credit Agreement
by each of the parties thereto under any applicable law in which
such concept is relevant.
Schedule F2-5
(M) Any provision of the Credit Agreement stating that any rights and
obligations thereunder shall bind successors and assigns of any
party thereto may not be enforceable in the absence of further
agreement and documentation.
(N) Matters of limitation of rights and obligations created by an
agreement are governed by the statute of limitation of the law
applicable to such agreement.
(O) A power of attorney granted by a Netherlands company will
automatically, i.e. by operation of law, terminate upon the
bankruptcy of such company or become ineffective, when such
company has been granted a suspension of payments. To the extent
that the appointment of a process agent by a Netherlands company
constitutes the granting of a power of attorney to such process
agent, any service of process on such agent, after such company
has been declared bankrupt or it has been granted a suspension of
payments, would not be valid and effective, except to the extent
authorised by the receiver or administrator, as the case may be.
(P) Under Netherlands law, agreements may be amended orally by the
parties thereto notwithstanding provisions therein to the
contrary.
(Q) We have assumed that the Extracts fully and accurately reflect
the corporate status and position of the Company. It is noted,
however, that the Extracts may not completely and accurately
reflect such status and position insofar as there may be a delay
between the taking of a corporate action (such as the issuance of
shares, the appointment or removal of a director, a winding-up
(ontbinding) or suspension of payment resolution or the making of
a court order, like a winding-up, suspension of payment or
bankruptcy order) and the filing of the necessary documentation
at the Commercial Register and a further delay between such
filing and an entry appearing on the file of the relevant party
at the Commercial Register.
(R) We have assumed that the Credit Agreement remains in full force
and effect and that it has not been amended, modified or
rescinded.
This opinion, which is strictly limited to the matters stated herein
and which is not to be read as extending by implication to other matters in
connection with this Credit Agreement or otherwise, is given subject to the
conditions, including the limitation of liability, set out at the bottom of the
front page of this opinion letter, and on the basis that it is governed by and
to be construed in accordance with Dutch law and that any action, arising out of
it, is to be determined by the competent court in Amsterdam which shall have
exclusive jurisdiction in relation thereto. We do not assume any obligation to
advise you (or any other person entitled to rely on this opinion) of subsequent
changes in, or in the interpretation of, Dutch law.
Schedule F2-6
This opinion is given solely for your benefit in this particular matter and
the context specified herein. It may not, without our prior written consent, be
transmitted or otherwise disclosed to, or relied upon by, others, referred to in
other matters or context whatsoever, or be quoted or made public in any way. You
may, however, deliver a copy of this opinion to permitted assignees of all or a
portion of a Bank's rights and obligations under the Credit Agreement in
connection with such assignment and to financial institutions who become parties
to the Credit Agreement in connection with a permitted increase in the amount of
the Total Commitment.
Yours faithfully,
Trenite Van Doorne
Schedule F2-7
SCHEDULE 1
----------
A. Certificates
(1) a copy of the deed of incorporation of the Company, dated 4 July 1984;
(2) a copy of the articles (statuten) (as amended) of the Company, dated 7
June 1995;
(3) an extract dated [_] July 2000, updated by a computer generated
extract dated the date hereof, from the Commercial Register
(Handelsregister) in Amsterdam (The Netherlands in respect of the
Company (the "Extracts");
(4) an executed copy of the resolutions of shareholders of the Company,
dated [_] July 2000, and
(5) an executed copy of the resolutions of the Management Board (bestuur)
of the Company, incorporating the Company's power of attorney to [_]
to sign the Credit Agreement on behalf of the Company, dated [_] July
2000.
* * *
Schedule F2-10
SCHEDULE 2
----------
Citicorp USA, Inc., as Administrative Agent
Xxx Xxxxx Xxxxxx
Xxxx Xxxxxx Xxxx, XX 00000
and
Citibank, N.A.
Deutsche Bank AG New York Branch and/or Cayman Islands Branch
Schedule F2-11
EXHIBIT G
[FORM OF OPINION OF NEW YORK COUNSEL]
[LETTERHEAD OF NEW YORK COUNSEL]
__________, 2000
Citicorp USA, Inc., as Administrative Agent
Xxx Xxxxx Xxxxxx
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
and
The Banks Listed on
Schedule A Hereto
Re: Credit Agreement dated as of September 20, 2000 among SurFin
Ltd., the Designated Subsidiaries, the Banks named therein,
Citicorp USA, Inc., as Administrative Agent, and Deutsche Bank AG
New York Branch and/or Cayman Islands Branch, as Syndication
Agent
Ladies and Gentlemen:
We have acted as special counsel to SurFin Ltd., an international
business company organized and existing under the laws of the Bahamas ("the
Borrower"), White Holding B.V., a company organized and existing under the laws
of the Netherlands and White Holding Mexico, S de X.X. de C.V., a company
organized and existing under the laws of the United Mexican States (together the
"Designated Subsidiaries") and Xxxxxx Electronics Corporation, a Delaware
corporation ("Xxxxxx" and, together with the Borrower and the Designated
Subsidiaries, the "Loan Parties"), in connection with that certain Credit
Agreement dated as of September 20, 2000 (the "Credit Agreement") by and among
the Borrower, the Designated Subsidiaries, the banks named therein ("Banks"),
Citicorp USA, Inc., as Administrative Agent ("Administrative Agent"), and
Deutsche Bank AG New York Branch and/or Cayman Islands Branch, as Syndication
Agent. This opinion is rendered to you pursuant to subsection 5.1(a)(vi)(C) of
the Credit Agreement. Capitalized terms used herein without definition have the
same meanings as in the Credit Agreement.
In connection with this opinion, we have examined the following
documents, all dated as of September 20, 2000: (i) the Credit Agreement and the
Guaranty of Xxxxxx in favor of the Agent as agent for the Banks (the "Xxxxxx
Guaranty", and together with the Credit Agreement, the "Loan Agreements").
We have also examined and exclusively relied, without independent
inquiry, (i) upon representations and warranties as to factual matters contained
in or made pursuant to the
G-1
Loan Agreements and (ii) a certificate of an officer of the Borrower as to
factual matters. We have also examined original, reproduced or certified copies
of the respective memoranda of association and articles of association, as
amended to date, of each of the Loan Parties, records of actions taken by the
respective board of directors, when applicable, of each of the Loan Parties, and
such other corporate records, certificates of public officials and such other
documents, instruments and opinions, and have considered such questions of law,
as we have deemed relevant and necessary, for the purposes of rendering the
opinions set forth below.
We have assumed, for purposes of this opinion without independent
inquiry (i) the genuineness of all signatures on all documents not executed in
our presence (ii) the authenticity of all documents submitted to us as
originals; (iii) the legal capacity of all natural persons; (iv) the conformity
to the originals of all documents submitted to us as copies (v) that the Loan
Agreements have been duly authorized by, have been duly executed and delivered
by, and (except, to the extent expressly set forth in the opinions expressed
below, as to the Loan Parties constitute the legal, valid, binding and
enforceable obligations of, all of the parties thereto; (vi) all signatories to
the Loan Agreements have been duly authorized; and (vii) that all of the parties
to the Loan Agreements are duly organized and validly existing and have the
power and authority (corporate, partnership or other) to execute, deliver and
perform the Loan Agreements, as applicable.
Whenever our opinion herein with respect to the existence or absence
of facts is indicated to be based on our knowledge or awareness, it is intended
to signify that, during the course of our representation of the Loan Parties as
herein described, no information inconsistent with such opinion has come to the
attention of the lawyers within our firm who have devoted substantive attention
to this matter. However, we have not undertaken any independent investigation
or inquiry to determine the existence or absence of such facts, and no inference
as to our knowledge of the existence or absence of such facts should be drawn
from our representation of the Loan Parties.
On the basis of the foregoing, and in reliance thereon, and subject to
the limitations, qualifications and exceptions set forth below, we are of the
opinion that:
1. The Credit Agreement constitutes the legal, valid and binding
obligation of the Borrower and the Designated Subsidiaries, enforceable against
the Borrower and the Designated Subsidiaries in accordance with its terms.
2. Neither the execution and delivery of the Loan Agreements by the
Loan Parties, the consummation of the transactions contemplated by the Loan
Agreements nor the compliance with the terms and conditions thereof by the Loan
Parties (A) conflicts with, results in a breach or violation of, or constitutes
a default under, any of the terms, conditions or provisions of (x) any term of
any material agreement, instrument, order, writ, judgment or decree known to us
to which any Loan Party is a party or by which any of its respective properties
or assets are bound, or (y) any present United States Federal or New York
statute, rule or regulation binding on the Loan Parties or (B) results in the
creation of any Lien upon any of the properties or assets of the Loan Parties
under any agreement or order referred to in clause 2(A)(x) above.
G-2
3. No consents or approvals of, authorizations by, or registrations,
declarations or filings with, any United States Federal or New York governmental
authority are required by the Loan Parties in connection with the execution and
delivery by the Loan Parties of the Loan Agreements or the extensions of credit
thereunder or the payment by the Loan Parties of their obligations thereunder.
4. To the best of our knowledge after due inquiry, there are no
actions, suits or proceedings pending or threatened against the Borrower or the
Designated Subsidiaries or any of their respective Subsidiaries which have a
significant likelihood of materially and adversely affecting either the ability
of the Borrower or the Designated Subsidiaries to perform their obligations
under any Loan Agreements or the financial condition or operations of the
Borrower or the Designated Subsidiaries, taken as a whole.
5. The Xxxxxx Guaranty constitutes the legally valid and binding
obligation of Xxxxxx, enforceable against Xxxxxx in accordance with its terms.
6. The making of the Loans and the application of the proceeds
thereof as provided in the Credit Agreement do not violate Regulation T, U or X
of the Board of Governors of the Federal Reserve System.
7. It is not necessary in connection with the execution and delivery
of the Credit Agreement for the Banks to register the Credit Agreement or the
Loans under the Securities Act of 1933, as amended, or to qualify any indenture
in respect thereof under the Trust Indenture Act of 1939, as amended.
8. Neither the Borrower nor any of the Designated Subsidiaries is an
"investment company" or company "controlled" by an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended.
The foregoing opinions are subject to the following comments and
qualifications:
A. Our opinions in paragraphs 1 and 5 above, as to the validity,
binding effect and enforceability of the Loan Agreements is subject to all
applicable bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium, marshaling of assets or similar laws affecting creditors'
rights generally and to the possible judicial application of foreign laws or
governmental action affecting the enforcement of creditors' rights. In
addition, we advise you that the enforceability of the Loan Agreements is
subject to the effect of general principles of equity, whether applied by a
court of law or equity, including the exercise of discretionary powers by any
court before which specific performance, injunctive relief, or other equitable
remedies may be sought, as well as concepts of materiality, reasonableness, good
faith and fair dealing.
B. The enforceability of Section 11.14 of the Credit Agreement may
be limited by laws limiting the enforceability of provisions exculpating or
exempting a party from, or requiring indemnification of a party for, liability
for its own action or inaction, to the extent the action or inaction involves
gross negligence, recklessness, willful misconduct or unlawful conduct.
G-3
C. The enforceability of provisions in the Loan Agreements to the
effect that terms may not be waived or modified except in writing may be limited
under certain circumstances.
D. We express no opinion as to (i) Section 11.17 of the Credit
Agreement, (ii) Section 11.19 of the Credit Agreement and the first sentence of
Section 15 of the Xxxxxx Guaranty insofar as such sections relate to any United
States District Court sitting in New York, (iii) Section 11.18 of the Credit
Agreement to the extent it purports to be a waiver of immunity acquired after
the execution and delivery of the Credit Agreement, or (iv) Section 11.20 of the
Credit Agreement.
E. We express no opinion with respect to the enforceability of any
provision of the Loan Agreements imposing increased interest rates and/or late
payments charges upon delinquency in payment or the occurrence of a default to
the extent that such increased interest rates and/or late payments charges would
violate applicable usury laws or be deemed a penalty or forfeiture by a court of
competent jurisdiction.
We are members of the bar of the District of Columbia and New York.
The opinions expressed herein concern only the effect of New York law and
Federal law. We have not considered, and express no opinion on, the laws of any
other jurisdiction.
At the request of our clients, this opinion letter is provided to you
by us in our capacity as counsel to the Loan Parties, and this opinion letter
may not be relied upon by any Person or quoted or reproduced for any purpose
other than in connection with the transactions contemplated by the Loan
Agreements (including in connection with any assignments contemplated by the
Loan Agreements and in connection with any increase in the Total Commitment
contemplated by the Agreement and any such permitted assignee or financial
institution who becomes a party to the Credit Agreement as a result of a
permitted increase in the amount of the Total Commitment may rely on this
opinion as if it were addressed and had been delivered to such assignee or
financial institution on the date hereof) without, in each instance, our prior
written consent, except that this opinion may be disclosed to regulatory or
other governmental authorities having jurisdiction over you requesting (or
requiring) such disclosure. This opinion is given as of October __, 2000 and
with respect to the laws in effect on that date. It is not practical for us,
and we assume no responsibility, to advise you any changes in our opinion based
on changes in the laws occurring after such date.
Very truly yours,
G-4
SCHEDULE A
Citibank, N.A.
Deutsche Bank AG New York Branch and/or Cayman Islands Branch
Schedule A-1
EXHIBIT H-1
[FORM OF OPINION OF ASSISTANT GENERAL COUNSEL TO XXXXXX]
[Letterhead of Xxxxxx Electronics Corporation]
To: The Banks listed on Schedule A hereto and Citicorp USA, Inc., as
Administrative Agent
Re: SurFin Ltd.
Credit Agreement dated as of September 20, 2000
-----------------------------------------------
Gentlemen:
I am the Assistant General Counsel of Xxxxxx Electronics Corporation,
a Delaware corporation ("Xxxxxx"), in connection with the guaranty (the
"Guaranty"), dated the date hereof, executed and delivered by Xxxxxx pursuant to
and in the form or Exhibit D to that certain Credit Agreement dated as of
September 20, 2000 (the "Credit Agreement") by and among SurFin Ltd., an
international business company organized and existing under the laws of the
Bahamas (the "Borrower"), the Designated Subsidiaries (the "Designated
Subsidiaries"), the banks named therein (the "Banks"), Citicorp USA, Inc. as
administrative agent for the Banks (in such capacity "Administrative Agent"),
and Deutsche Bank AG New York Branch and/or Cayman Islands Branch, as
Syndication Agent. Capitalized terms not otherwise defined herein shall have
the meanings set forth in the Credit Agreement. This opinion is rendered to you
pursuant to Section 5.1(a)(vi)(D) of the Credit Agreement.
As Assistant General Counsel to Xxxxxx, I have caused to be made such
legal and factual examinations and inquiries, including an examination of
originals or copies, certified or otherwise identified to my satisfaction as
authentic, of such corporate records, agreements, instruments and other
documents as I have deemed necessary or appropriate for the purposes of this
opinion. I have caused to be obtained such certificates and other assurances
(copies of which have been delivered to you) from public officials and officers
and other employees of Xxxxxx as I considered necessary or appropriate for the
purpose of rendering this opinion. I have assumed the genuineness of all
signatures (except that of Xxxxxx), the authenticity of all documents submitted
to me as originals, and the conformity with the originals of all documents
submitted to me as copies.
Based upon the foregoing and in reliance thereon, and subject to the
qualifications, limitations and assumptions set forth herein, I am of the
opinion that, as of the date hereof:
1. Xxxxxx is a corporation duly incorporated and validity existing
as a corporation in good standing under the laws of the State of Delaware, with
full corporate power and authority to own and lease its properties and conduct
its business as presently owned and conducted.
2. Xxxxxx is duly qualified to do business as a foreign corporation
in good standing in the State of California.
H1-1
3. Xxxxxx has full corporate power and authority to guarantee the
Borrower's and the Designated Subsidiaries' obligations under the Credit
Agreement, to execute and deliver the Guaranty and to perform its obligations
thereunder.
4. All corporate action required to be taken by Xxxxxx for the
authorization, execution and delivery of the Guaranty by Xxxxxx and the
performance by Xxxxxx of its obligations thereunder has been duly taken.
5. The Guaranty has been duly executed and delivered by Xxxxxx and
is a valid and binding agreement of Xxxxxx, enforceable against Xxxxxx in
accordance with its terms, subject to the limitations, qualifications,
exceptions and assumptions set forth below.
6. To my knowledge, after causing to be conducted such legal and
factual examination and inquiries and causing to be conducted such discussions
with and obtaining such certificates or other confirmations from officers and
other employees of Xxxxxx as I considered appropriate in the circumstances, no
consent, permission, authorization, order or license of any United States
federal or New York governmental authority is necessary in connection with the
execution and delivery of the Guaranty by Xxxxxx and Xxxxxx' performance of its
obligations under the Guaranty.
7. There is no provision of the Certificate of Incorporation or the
Bylaws of Xxxxxx which would be contravened by the execution and delivery of the
Guaranty by Xxxxxx or by the performance by Xxxxxx of its obligations under the
Guaranty.
8. Xxxxxx is not an "investment company" as defined in the
Investment Company Act of 1940, as amended.
9. To my knowledge, after causing to be conducted such legal and
factual examination and inquiries and causing to be conducted such discussions
with and obtaining such certificates or other confirmations from officers and
other employees of Xxxxxx as I considered appropriate in the circumstances, no
consent or approval of any trustee or holder of any material indebtedness of
Xxxxxx is necessary in connection with the execution and delivery of the
Guaranty by Xxxxxx and Xxxxxx' performance of its obligations under the
Guaranty.
10. There is no provision of any indenture or material agreement for
borrowed money to which Xxxxxx is a party or under which Xxxxxx is obligated,
and of which I am aware, after causing to be conducted such legal and factual
examinations and inquiries and causing to be conducted such discussion with and
obtaining such certificates or other confirmations from officers and other
employees of Xxxxxx as I considered appropriate in the circumstances, which
would be contravened by the execution and delivery of the Guaranty by Xxxxxx or
by the performance by Xxxxxx of its obligations under the Guaranty.
11. To my knowledge, after causing to be conducted such legal and
factual examinations and inquiries and causing to be conducted such discussions
with and obtaining such certificates or other confirmations from officers and
other employees of Xxxxxx as I considered appropriate in the circumstances,
there is no judgment, decree or order of any court or governmental agency
binding on Xxxxxx which would be contravened by the execution and
H1-2
delivery of the Guaranty by Xxxxxx and Xxxxxx' performance of its obligations
under the Guaranty.
The opinion expressed in paragraph 5 is subject to the following
limitations, qualifications, exceptions and assumptions:
(a) the enforcement of the Guaranty may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws or by equitable
principles relating to or limiting the rights of creditors generally;
(b) the use of the term enforceable shall not imply any opinion as to
the availability of equitable remedies;
(c) The unenforceability under certain circumstances, under New York
or federal law or court decisions, of provisions expressly or by implication
waiving broadly or vaguely stated rights, unknown future rights, defenses to
obligations or rights granted by law, where such waivers are against public
policy or prohibited by law;
(d) The unenforceability under certain circumstances of provisions to
the effect that rights or remedies are not exclusive, that every right or remedy
is cumulative and may be exercised in addition to or with any other right or
remedy, that election of a particular remedy or remedies does not preclude
recourse to one or more other remedies or that failure to exercise or delay in
exercising rights or remedies will not operate as a waiver of any such right or
remedy;
(e) The unenforceability under certain circumstances of provisions
indemnifying a party against liability for its own wrongful or negligent acts or
where such indemnification is contrary to public policy or prohibited by law;
and
(f) The enforceability under certain circumstances of provisions
imposing penalties, forfeitures, late payment charges or an increase in interest
rate upon delinquency in payment or the occurrence of a default.
To the extent that the obligations of Xxxxxx may be dependent upon
such matters, I assume for purposes of this opinion that each of the Banks is
duly incorporated or organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation or organization; that each of the
Banks is duly qualified to engage in the transaction covered by this opinion;
that the Credit Agreement has been duly authorized, executed and delivered by
each of the Banks and that the Credit Agreement constitutes the valid and
binding obligation of each of the Banks, enforceable in accordance with its
terms; and that each of the Banks has the requisite corporate or organizational
and legal power and authority to own its properties, to carry on its business as
now being conducted and to perform its obligations under the Credit Agreement,
including, without limitation, to make the loans under the Credit Agreement. I
am not expressing any opinion as to the effect of or the compliance by any Bank
with any state or federal laws or regulations applicable to the transactions
because of the nature of its respective business.
I am a member of the bar of the State of California. Subject to the
limitations set forth herein, I am opining herein as to the effect on the
subject transaction only of the federal
H1-3
laws of the United States and the General Corporation Law of the State of
Delaware. In this regard, I note that the Credit Agreement and the Guaranty
contain provisions to the effect that the laws of jurisdictions other than those
of the State of California are intended to be governing. For purposes of the
opinions expressed herein I have assumed, with your consent, without any
independent investigation, that the laws of all jurisdictions that may govern
the Credit Agreement and the Guaranty other than those of the State of
California are identical in all relevant respects to the laws of the State of
California. Except as expressly noted, I have not considered, and express no
opinion on, the laws of any other jurisdiction.
This opinion is rendered to the Banks and Administrative Agent and is
solely for their benefit in connection with the above transaction. This opinion
may not be relied upon by the Banks or Administrative Agent for any other
purpose, or furnished to, quoted to or relied upon by any other person, firm or
corporation for any purpose without my prior written consent. You may, however,
deliver a copy of this opinion to permitted assignees of all or a portion of a
Bank's rights and obligations under the Credit Agreement in connection with such
assignment and to any financial institution who becomes a party to the Credit
Agreement in connection with a permitted increase in the Total Commitment and
such assignees and financial institutions may rely on this opinion. This opinion
may also be disclosed to regulatory or other governmental authorities having
jurisdiction over you requesting (or requiring) such disclosure.
Very truly yours,
H1-4
SCHEDULE A
Citibank, N.A.
Deutsche Bank AG New York Branch and/or Cayman Islands Branch
Schedule A-1
EXHIBIT H-2
[FORM OF OPINION OF COUNSEL TO XXXXXXX]
[THE LETTERHEAD OF FOREIGN COUNSEL]
____________, 2000
Citicorp USA, Inc., as Administrative Agent
[Address
of Agent]
and
The Banks Listed on
Schedule A Hereto
Re: Credit Agreement dated as of September 20, 2000 among SurFin
Ltd., White Holding B.V., White Holding Mexico, S de X.X. de
C.V., the Banks named therein, Citicorp USA, Inc., as
Administrative Agent, and Deutsche Bank AG New York Branch and/or
Cayman Islands Branch, as Syndication Agent
Ladies and Gentlemen:
1. We have acted as Cayman Islands counsel to Xxxxxxx Investments
LLC, an exempted company organized and existing under the laws of the Cayman
Islands ("Guarantor"), in connection with that certain Guaranty (the "Guaranty")
dated the date hereof, in the form of Exhibit E to the Credit Agreement. This
opinion is rendered to you in compliance with subsection 5.1(a)(vi)(E) of the
Credit Agreement.
2. Capitalized terms used herein without definition have the same
meanings as in the Credit Agreement.
3. For the purposes of this opinion, we have examined and relied upon
the following documents:
(i) an execution copy of the Credit Agreement;
(ii) a copy of the Guaranty;
(iii) a certified copy of the Certificate of Incorporation of the
Guarantor;
(iv) certified copies of the Memorandum and Articles of Association
of the Guarantor adopted by special resolution on [13th December 1995] and
amended by special resolutions on [14th August 1996 and 28th April 1999] (the
"Memorandum and Articles");
H2-1
(v) the minute book and statutory registers of the Guarantor
including resolutions of the Directors of the Guarantor (the "Directors") dated
_____ __, 2000 and resolutions of the shareholders of the Guarantor dated _____
__, 2000;
(vi) the cause list kept at the Clerk of the Courts' office in the
Cayman Islands as at _______ ___, 2000;
(vii) a certificate of good standing in respect of the Guarantor
dated [____], 2000 and issued by the Registrar of Companies of the Cayman
Islands; and
(viii) a certificate of the Directors dated ______ __, 2000 (the
"Directors' Certificate").
4. This opinion is based solely on the facts subsisting at the date
hereof and of which we are aware. We are qualified to advise as to Cayman
Islands law only and our opinion relates solely to the laws of the Cayman
Islands in force at the date hereof and as currently applied by the courts of
the Cayman Islands. We have not, for the purposes of this opinion, made any
investigation of the laws, rules or regulations of any other jurisdiction,
including, but not limited to, the laws of the State of New York and federal
laws of the United States of America.
5. In giving this opinion, we have relied upon the accuracy of the
Directors' Certificate without further verification and upon the following
assumptions which we have not independently verified:
(i) The genuineness of all seals and signatures on all documents
which, or copies of which, were examined by us and the genuineness of all such
documents submitted to us as originals and the conformity with their respective
originals of all such documents submitted to us as copies;
(ii) The Memorandum and Articles reviewed by us are the Memorandum
and Articles of Association of the Guarantor in force on the date hereof;
(iii) The statutory registers and minute books of the Guarantor
examined by us for the purposes of this opinion were true, complete and up to
date at the time of our examination;
(iv) To the extent that any of the matters to which this opinion
relates depend on the capacity, authority or legal right of parties under
relevant laws and regulations, the capacity, power, authority and legal right of
all parties under all relevant laws and regulations (other than, in relation to
the Guarantor only, the laws and regulations of the Cayman Islands) to enter
into, execute and perform their respective obligations under the Credit
Agreement and Guaranty;
(v) To the extent that any of the matters to which this opinion
relates depend on (a) the due authorization, execution and delivery by the other
parties to the Credit Agreement or the Guaranty or (b) the enforceability
thereof in accordance with their respective terms under the laws of New York and
other relevant laws, rules or regulations, each of the Credit Agreement
H2-2
(in the form of the execution copy examined by us) and Guaranty has been duly
authorized, executed and delivered by or on behalf of each of the parties
thereto (other than in the case of the Guaranty only, the Guarantor) and
constitutes the legal, valid and binding obligations of the parties thereto,
enforceable in accordance with their respective terms under the laws of New York
and all other relevant laws, rules and regulations (other than, in the case of
the Guaranty only, the laws of the Cayman Islands);
(vi) The choice of New York law as the governing law of each of the
Credit Agreement and the Guaranty has, in each case, been made in good faith and
will, in each case, be regarded as a valid and binding selection which be upheld
by the courts of New York, the United States federal courts and the courts of
any other relevant jurisdiction (other than, in the case of the Guaranty only,
the courts of the Cayman Islands);
(vii) There is no applicable provision of the laws or regulations of
any jurisdiction (other than, in relation to the Guaranty only, the Cayman
Islands) or any public policy in any jurisdiction (including the Cayman Islands)
which would be or, as the case may be, has been contravened by the execution or
delivery of the Credit Agreement and the Guaranty and, insofar as any obligation
expressed to be incurred under the Guaranty is to be performed in or is
otherwise subject to any applicable laws of any jurisdiction other than the
Cayman Islands, its performance will not be illegal or ineffective by virtue of
the laws of that jurisdiction;
(viii) All authorizations, approvals, consents, licenses and
exemptions of any government or any agency or department thereof or any other
person required by, and all requirements of, each of the parties to the Credit
Agreement and the Guaranty (other than, in the case of the Guaranty only and in
the case of the laws and regulations of the Cayman Islands only, the Guarantor)
for the legality, validity, enforceability, proper performance and observance
and admissibility in evidence of each of the Credit Agreement and the Guaranty
have been or will have been obtained or fulfilled and are or will remain in full
force and effect and any conditions to which they are subject have been
satisfied or waived by the parties entitled to the benefit thereof; and
(ix) All notarizations, consularizations, filings, recordings,
registrations and enrollments of each of the Credit Agreement and the Guaranty
with any court or authority of or in any jurisdiction outside the Cayman Islands
and all payments outside the Cayman Islands of stamp duty, registration or other
tax on or in relation to the Credit Agreement and the Guaranty that are
necessary in order to ensure the legality, validity, enforceability or
admissibility in evidence of either of the Credit Agreement and the Guaranty
have been made and/or paid in relation to the same.
6. Based upon and subject to the foregoing, and subject to any
matters not disclosed to us and to the assumptions and qualifications
hereinbefore and hereinafter set out, we are of the opinion that:
(i) The Guarantor is an exempted company with limited life duly
incorporated, validly existing and in good standing under the laws of the Cayman
Islands with full corporate power and authority to carry out any object not
prohibited by The Companies Law (1998 Revision) or any other law;.
H2-3
(ii) The Guarantor has full corporate power and authority to
execute, deliver and perform its obligations under the Guaranty;
(iii) The execution, delivery and performance of the Guaranty have
been duly authorized by all necessary corporate action by the Guarantor, and the
Guaranty has been duly executed by the Guarantor.
(iv) No constitutional provision, law, ordinance or decree of the
Cayman Islands or any government agency or department of the Cayman Islands and
no provision of the Memorandum and Articles of Association of the Guarantor is
or will be contravened by the execution and delivery of the Guaranty or the
performance and observance of the terms thereof by the Guarantor;
(v) It is not necessary or advisable to ensure the enforceability
or admissibility in evidence in the Cayman Islands of the Guaranty that it be
notarized, filed, recorded, registered or enrolled in any court, public
authority or elsewhere in the Cayman Islands;
(vi) The choice by the parties to the Guaranty of the laws of the
State of New York as the governing law of the Guaranty would be recognized and
given effect by the courts of the Cayman Islands;
(vii) Nothing under Cayman Islands law prevents the submission to
jurisdiction by the Guarantor, the appointment of the agent for service of
process by Guarantor and the designation of the agent for service of process
being valid and effective and binding on the Guarantor;
(viii) The obligations of the Guarantor under the Guaranty are
enforceable by the Administrative Agent against the Guarantor in accordance with
its terms in a proceeding at law in the courts of the Cayman Islands; and
(ix) There is no statutory enforcement in the Cayman Islands of
judgements obtained in a state or United States federal court in the State of
New York or the United States of America but such a judgment will be actionable
in the courts of the Cayman Islands on the principle that a judgement of a
competent foreign court imposes upon the judgment debtor an obligation to pay
the sum for which judgement has been given, provided that:
(a) the foreign court had jurisdiction to pronounce the judgement;
(b) the judgement is final and conclusive and is for a definite
liquidated sum of money not being in respect of taxes or a fine or other
penalty; and
(c) the judgement was not obtained by fraud or in proceedings
which were contrary to natural justice or in any other manner contrary to
the laws or public policy of the Cayman Islands and the judgement is not of
a kind, the enforcement of which is contrary to the laws or public policy
of the Cayman Islands.
7. The foregoing opinions are subject to the following
qualifications, limitations and reservations:
H2-4
(i) The term "enforceable" and its cognates, as used in this opinion,
mean that the obligations assumed under the Guaranty are of a type which the
courts of the Cayman Islands enforce. It does not mean that those obligations
will necessarily be enforced in all circumstances. For example:
(a) Enforcement of obligations and the priority of obligations may be
limited by bankruptcy, insolvency, liquidation, reorganization, moratorium,
reconstruction or other similar laws, rules or regulations of general
application relating to or affecting the rights of creditors or by
prescription or lapse of time;
(b) Enforcement may be limited by general principles of equity, and
in particular the availability of certain equitable remedies such as
injunction and specific performance will be at the discretion of the courts
and, for example, a court might make an award of damages where specific
performance of an obligation or some other equitable remedy is sought but
the courts considers damages to be an adequate remedy;
(c) Claims may become barred under the statutes of limitation or may
be or become subject to defences of set off or counterclaim;
(d) Where obligations are to be performed in a jurisdiction outside
the Cayman Islands, they may not be enforceable in the Cayman Islands to
the extent that performance would be illegal under the laws or contrary to
the public policy of that other jurisdiction;
(e) The Cayman Islands court has jurisdiction to give judgement in
the currency of the relevant obligation and statutory rates of interest
payable upon judgements given after 1st June, 1995 will vary according to
the currency of the judgement. In the event that the Guarantor becomes
insolvent and is made subject to a liquidation proceeding, the Cayman
Islands court is likely to require all debts to be proved in a common
currency, which is likely to be the "functional currency" of the Guarantor
determined in accordance with applicable accounting principles; currency
indemnity provisions have not been tested, so far as we are aware, in the
courts of the Cayman Islands;
(f) A certificate, determination or calculation of any party to the
Credit Agreement or the Guaranty as to any matter provided therein might be
held by a Cayman Islands court not to be conclusive, final and binding if,
for example, it could be shown to have an unreasonable or arbitrary basis
or in the event of manifest error;
(g) In principle a Cayman Islands' court will award costs and
disbursements in litigation in accordance with contractual provisions in
this regard but the applicable rule of court (GCR Order 62, rule 2) has
been in force only since 1st June, 1995 and there remains some uncertainty
as to the way in which it will be applicable in practice. Whilst it is
clear that costs incurred prior to judgement can be recovered in accordance
with the contract, it is likely that post-judgement costs will be
recoverable, if at all, in accordance with the scales laid down in the
Grand Court (Taxation of Costs) Rules 1995;
H2-5
(h) Under Article 70 of the Guarantor's Articles of Association,
all cheques, promissory notes, drafts, bills of exchange, other negotiable
instruments and other obligations of the Guarantor in an amount that
exceeds $2.25 million must be signed, drawn, accepted, endorsed or
otherwise executed, as the case may be, by one signatory designated by the
Bessemer Designees (as defined in the Articles of Association of the
Guarantor);
(ii) The severability of any provisions of the Guaranty which are
illegal, invalid or unenforceable under the laws of any jurisdiction is, as a
matter of Cayman Islands law, at the discretion of the courts;
(iii) Where under the Guaranty any of the parties is vested with a
discretion or may determine a matter in its opinion, Cayman Islands law may
require that such discretion is exercised reasonably or that such opinion is
based on reasonable grounds;
(iv) Stamp duty will be payable if the Credit Agreement or the
Guaranty is executed in, brought to or produced before a court of the Cayman
Islands. At current rates, in such circumstances, stamp duty of CI$2.00 will be
payable on the Credit Agreement and CI$6.00 will be payable on the Guaranty;
(v) Whereas our investigation of the minute book and statutory
registers of the Guarantor did not indicate that any steps had been taken for
the voluntary winding up or reorganization of he Guarantor, and our examination
of the cause list kept at the Clerk of the Court's office in the Cayman Islands
on ______ __, 2000 revealed no winding up petitions against, or reorganization
proceedings of the Guarantor, our findings must not be taken as conclusive
because minutes of meetings may not have been kept fully up to date and
impending winding up or reorganization proceedings may not have, as at such
date, been included in the cause list;
(vi) Certain provisions, for example, provisions for default
interest, default fines or similar provisions, may be unenforceable to the
extent that they are considered by a Cayman Islands court to be penal in nature
rather than a genuine pre-estimate of loss; and
(vii) The courts of the Cayman Islands will not enforce any
provisions of any of the Guaranty to the extent that the same may be contrary to
public policy in the Cayman Islands.
(viii) Any term of the Guaranty herein referred to may be amended
orally or by a course of conduct by the parties thereto, notwithstanding any
provision to the contrary contained herein;
(ix) We make no comment with regard to the references to foreign
statutes in the Guaranty;
(x) We express reservations regarding the validity of any
expressed undertaking of a company which purports to prevent it from exercising
its statutory powers under The Companies Law (1998 Revision), (such as for
example to prevent it from amending or altering its Memorandum and Articles of
Association or its share capital);
H2-6
(xi) To maintain the Guarantor in good standing under the laws of
the Cayman Islands, annual filing fees must be paid and returns made to the
Registrar of Companies. A failure to pay annual return fees in respect of the
Guarantor will result in the Guarantor being struck from the Register of
Companies whereupon its assets will vest in the Cayman Islands government and
all unauthorized dealings therewith will become illegal;
(xii) Cayman Islands conflict of law principles are derived from
English common law and in the Cayman Islands, as in England, the concept of
governing law does not imply that all matters pertaining to the contract or
instrument (for example the assignability of choses in action constituted by
another system of law) will necessarily be determined exclusively by the
governing law. A Cayman Islands court may not apply the laws of another
jurisdiction if to do so would be contrary to the laws or public policy of the
Cayman Islands; and
(xiii) A court may stay proceedings if concurrent proceedings are
being brought elsewhere;
(xiv) To the extent that the obligations of the Guarantor under the
Guaranty mentioned herein involve the government of any country which is
currently the subject of United Nations sanctions (namely Iraq, Libya, Rwanda,
Sierra Leone and parts of former Yugoslavia, and each an "Affected Country"),
any person or body resident in, incorporated in or constituted under the laws of
any Affected Country or exercising public functions in any Affected Country or
any person or body controlled by any of the foregoing or by any person acting on
behalf of any of the foregoing, they may be subject to restrictions pursuant to
such sanctions as implemented under the laws of the Cayman Islands.
This opinion is rendered only to Administrative Agent and Banks and is
solely for their benefit in connection with the above transactions. This opinion
may not be relied upon by Administrative Agent or Banks for any other purpose,
or quoted to or relied upon by any other person, firm or corporation for any
purpose without our prior written consent. You may, however, deliver a copy of
this opinion to permitted assignees of all or a portion of a Bank's rights and
obligations under the Credit Agreement in connection with such assignment and to
any financial institution who becomes a party to the Credit Agreement in
connection with a permitted increase in the Total Commitment and such assignees
and financial institutions may rely hereon. This opinion may also be disclosed
to regulatory or other governmental authorities having jurisdiction over you
requesting (or requiring) such disclosure.
Very truly yours,
H2-7
SCHEDULE A
Citibank, N.A.
Deutsche Bank AG New York Branch and/or Cayman Islands Branch
Schedule A-1
EXHIBIT I
[FORM OF OPINION OF O'MELVENY & XXXXX LLP
AS OF THE CLOSING DATE]
_____________, 2000
Citicorp USA, Inc., as Administrative Agent
0 Xxxxx Xxx
Xxxxx 000
Xxx Xxxxxx, Xxxxxxxx 00000
and
The Banks Party to the Credit Agreement
Referred to Below
Re: Credit Agreement dated as of September 20, 2000 among SurFin
Ltd., the Designated Subsidiaries, the Banks named therein,
Citicorp USA, Inc., as Administrative Agent, and Deutsche Bank AG
New York Branch and/or Cayman Islands Branch, as Syndication
Agent
Ladies and Gentlemen:
We have participated in the preparation of the Credit Agreement dated
as of September 20, 2000 (the "Credit Agreement"; capitalized terms defined
therein and not otherwise defined herein are used herein as therein defined)
among SurFin Ltd. (the "Borrower"), the Designated Subsidiaries (the "Designated
Subsidiaries" and together with the Borrower the "Obligors"), the Banks named
therein (the "Banks"), Citicorp USA, Inc., as Administrative Agent, and Deutsche
Bank AG New York Branch and/or Cayman Islands Branch, as Syndication Agent, and
have acted as special counsel for the Administrative Agent for the purpose of
rendering this opinion pursuant to Section 5.1(a)(vii) of the Credit Agreement.
We have participated in various conferences and telephone conferences
with representatives of the Borrower, the Designated Subsidiaries and the
Administrative Agent and conferences and telephone calls with counsel to the
Borrower and Xxxxxx, and with your representatives, during which the Credit
Agreement and related matters have been discussed, and we have also participated
in the meeting held on the date hereof (the "Closing") incident to the
effectiveness of the Credit Agreement. We have reviewed the forms of the Credit
Agreement and the exhibits thereto, and the opinions of [Xxxxxx, Xxxxxxxx &
Company], Bahamas counsel to the Borrower, Xxxxxx, Xxxxxx & Xxxxxxxxx, New York
counsel to the Borrower, ________, Assistant General Counsel of Xxxxxx and of
counsel to the Designated Subsidiaries (the "Opinions"), and officers'
certificates and other documents delivered at the Closing. We have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
I-1
as originals or copies, the due authority of all persons executing the same, and
we have relied as to factual matters on the documents which we have reviewed.
On the basis of such examination, our reliance upon the assumptions
contained herein and our consideration of those questions of law we considered
relevant and subject to the limitations and qualifications in this opinion, we
are of the opinion that:
1. The Credit Agreement and the Xxxxxx Guaranty each constitutes the
legally valid and binding obligations of the Obligors and Xxxxxx, respectively,
enforceable against the Obligors and Xxxxxx, respectively in accordance with its
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting creditors' rights generally
(including, without limitation, fraudulent conveyance laws) and by general
principles of equity including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible unavailability of
specific performance or injunctive relief, regardless of whether considered in a
proceeding in equity or at law. In giving the foregoing opinion, we have
assumed, without independent investigation, that each of the Credit Agreement
and the Xxxxxx Guaranty has been duly authorized by all necessary corporate
action on the part of each of the Obligors and Xxxxxx, respectively, and has
been duly executed and delivered by each of the Obligors and Xxxxxx,
respectively.
2. The Opinions are satisfactory in form to us and, in our opinion,
you are justified in relying thereon.
Our opinions in paragraph 1 above as to the enforceability of the
Credit Agreement and the Xxxxxx Guaranty are subject to:
(a) public policy considerations, statutes or court decisions
that may limit the rights of a party to obtain indemnification against its
own gross negligence, willful misconduct or unlawful conduct; and
(b) the unenforceability under certain circumstances of waivers
of rights granted by law where the waivers are against public policy or
prohibited by law.
We express no opinion as to the effect of non-compliance by you with
any state or federal laws or regulations applicable to the transactions
contemplated by the Credit Agreement because of the nature of your business.
The law covered by this opinion is limited to the present federal law
of the United States and the present law of the State of New York. We express no
opinion as to the laws of any other jurisdiction.
This opinion is furnished by us as special counsel for the
Administrative Agent and may be relied upon by you only in connection with the
Credit Agreement. It may not be used or relied upon by you for any other purpose
or by any other person, nor may copies be delivered to any other person, without
in each instance our prior written consent. You may, however, deliver a copy of
this opinion to permitted assignees of all or a portion of a Bank's
I-2
rights and obligations under the Credit Agreement in connection with such
assignment and to any financial institution who becomes a party to the Credit
Agreement in connection with a permitted increase in the Total Commitment, and
such assignees and financial institutions may rely on this opinion as if it were
addressed and had been delivered to them on the date of this opinion. This
opinion may also be disclosed to regulatory and other governmental authorities
having jurisdiction over you requesting (or requiring) such disclosure.
Respectfully submitted,
I-3
EXHIBIT J
ASSIGNMENT AND ACCEPTANCE
-------------------------
Dated ___________, _____
Reference is made to the Credit Agreement dated as of September 20,
2000 (as amended from time to time, the "Credit Agreement") among SurFin Ltd., a
Bahamas international business company (the "Borrower"), the Designated
Subsidiaries (as defined in the Credit Agreement), the Banks (as defined in the
Credit Agreement), Citicorp USA, Inc., as Administrative Agent for the Banks
(the "Administrative Agent"), and Deutsche Bank AG New York Branch and/or Cayman
Islands Branch, as Syndication Agent. Terms defined in the Credit Agreement and
not defined herein are used herein with the same meaning.
______________ (the "Assignor") and ______________ (the "Assignee") agree
as follows:
1. The Assignor hereby sells and assigns without recourse to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor, that
interest in and to all of the Assignor's rights and obligations under the Credit
Agreement as of the Effective Date (defined below) which represents the
percentage interest specified on Schedule 1 of all outstanding rights and
obligations under the Credit Agreement, including, without limitation, such
interest in the Assignor's Commitment and the Loans owing to the Assignor. After
giving effect to such sale and assignment, the Assignee's Commitment, the amount
of the Loans owing to the Assignee, and the Termination Date of the Assignee
will be as set forth in Section 2 of Schedule 1. In consideration of Assignor's
assignment, Assignee hereby agrees to pay to Assignor, on the Effective Date,
the amount of $3,500 in immediately available funds by wire transfer to
Assignor's office at ____________________________.
Without limiting the generality of the foregoing, the parties hereto
hereby expressly acknowledge and agree that any assignment of all or any portion
of Assignor's rights and obligations relating to Assignor's Commitment shall
include (i) in the event Assignor is an Issuing Bank with respect to any
outstanding Letters of Credit (any such Letters of Credit being "Assignor
Letters of Credit"), the sale to Assignee of a participation in the Assignor
Letters of Credit and any drawings thereunder as contemplated by Section 2.11(c)
of the Credit Agreement and (ii) the sale to Assignee of a ratable portion of
any participations previously purchased by Assignor pursuant to said subsection
2.11(c) with respect to any Letters of Credit other than the Assignor Letters of
Credit.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document furnished
pursuant thereto; and (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower, any
Designated Subsidiary or any Guarantor or the
J-1
performance or observance by the Borrower, any Designated Subsidiary or any
Guarantor of any of its obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into this Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Administrative Agent, the Assignor
or any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (iii) confirms that it is an
[Eligible Assignee] [Approved Bank Affiliate]; (iv) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under the Credit Agreement as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; (v) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Credit Agreement are
required to be performed by it as a Bank; and (vi) specifies as its Lending
Office or Lending Offices (and address for notices) the offices set forth
beneath its name on the signature pages hereof.
4. Following the execution of this Assignment and Acceptance by the
Assignor and the Assignee, the Assignment and Acceptance will be delivered to
the Administrative Agent for acceptance and recording by the Administrative
Agent. The effective date of this Assignment and Acceptance shall be the date of
acceptance thereof by the Administrative Agent, unless otherwise specified on
Schedule 1 hereto (the "Effective Date").
5. Upon such acceptance and recording by the Administrative Agent,
as of the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Bank thereunder and (ii) the Assignor shall, to
the extent provided in this Assignment and Acceptance, relinquish its rights and
be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative Agent,
from and after the Effective Date, the Administrative Agent shall make all
payments under the Credit Agreement in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and fees
with respect thereto) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Credit Agreement for periods prior
to the Effective Date directly between themselves.
7. The Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
Schedule 1 hereto.
J-2
Schedule 1
to
Assignment and Acceptance
Dated __________, ____
Section 1.
---------
Percentage Interest _____%
Section 2.
---------
Assignee's Commitment: $_____
Aggregate Outstanding Principal
Amount of Loans owing to the Assignee: $_____
Loans payable to the Assignee
Principal amount: _____
Loans payable to the Assignor
Principal amount: _____
Termination Date: __________, _____
Section 3.
---------
Effective Date**: __________, ______
[NAME OF ASSIGNOR]
By:_________________________
Title:
[NAME OF ASSIGNEE]
By:_________________________
Title:
Domestic Lending Office (and
address for notices):
[Address]
Eurodollar Lending Office:
[Address]
_____________________
** This date should be no earlier than the date of acceptance by the
Administrative Agent.
Schedule 1-1
Accepted this ____ day
of __________, ______
CITICORP USA, INC., as Administrative Agent
By:_________________________
Title:
SURFIN LTD.
By:_________________________
Title:
Schedule 1-2
EXHIBIT K
[FORM OF L/C REQUEST]
L/C REQUEST
Pursuant to that certain Credit Agreement dated as of September 20,
2000, as amended, supplemented or otherwise modified to the date hereof (said
Credit Agreement, as so amended, supplemented or otherwise modified, being the
"Credit Agreement", the terms defined therein and not otherwise defined herein
being used herein as therein defined), by and among SurFin Ltd., an
international business company organized and existing under the laws of the
Bahamas (the "Borrower"), the Designated Subsidiaries, the financial
institutions listed therein as Banks, Citicorp USA, Inc., as Administrative
Agent ("Administrative Agent"), and Deutsche Bank AG New York Branch and/or
Cayman Islands Branch, as Syndication Agent, this represents [name of Obligor]'s
request for the issuance of a Letter of Credit as follows:
1. Name of Obligor for whose account
---------------------------------
Letter of Credit is to be issued: _____________________________
--------------------------------
2. Issuing Bank: _________________________________
------------
3. Date of issuance of Letter of Credit: ________________, ________
------------------------------------
4. Type of Letter of Credit: a. Commercial Letter of Credit (other than
------------------------
a Usance Letter of Credit)
b. Usance Letter of Credit
c. Standby Letter of Credit
5. Face amount of Letter of Credit: $________________________
-------------------------------
6. Expiration date of Letter of Credit: ________________, ________
-----------------------------------
7. Attached hereto is an executed application to issue letter of credit
--------------------------------------------------------------------
in the Issuing Bank's standard form setting forth the name and address of
-------------------------------------------------------------------------
the beneficiary, together with:
------------------------------
a. the verbatim text of such proposed Letter of Credit
b. a description of the proposed terms and conditions of such
Letter of Credit, including a precise description of any documents
to be presented by the beneficiary which, if presented by the
beneficiary prior to the expiration date of such Letter of Credit,
would require the Issuing Bank to make payment (or in the case of a
Usance Letter of Credit, accept a draft) under such Letter of Credit.
K-1
8. Purpose: The following is a description of the purpose of the proposed
-----------------------------------------------------------------------
Letter of Credit:
----------------
___________________________________________
___________________________________________
___________________________________________
___________________________________________.
We confirm that, pursuant to Section 5.3 of the Credit Agreement, as of
the date hereof:
(i) the representations and warranties set out in Section 6 of the
Credit Agreement are true and correct in all material respects;
(ii) the most current financial statements delivered pursuant to
Section 7.5 of the Credit Agreement present fairly the financial
position and results of operation and changes in financial position of
the Borrower and its consolidated Subsidiaries as at the end of, and
for the fiscal period to which such statements relate as of the date
thereof (subject, in the case of unaudited financial statements, to
year end adjustments) and there has been no Material Change since the
date thereof;
(iii) no Event of Default or Unmatured Event of Default has occurred
and is continuing; and
(iv) the "Total Utilization of Commitments" as defined in the Existing
Credit Agreement equals aggregate amount of the "Total Commitments" as
defined in the Existing Credit Agreement.
DATED: ____________________ [Name of Obligor for whose account Letter
of Credit is to be issued]
By: ______________________________
Title: ____________________________
K-2
EXHIBIT L
ADDITIONAL COMMITMENT AND ACCEPTANCE
------------------------------------
Dated ___________, _____
Reference is made to the Credit Agreement dated as of September 20,
2000 (as amended from time to time, the "Credit Agreement") among SurFin Ltd., a
Bahamas international business company (the "Borrower"), the Designated
Subsidiaries (as defined in the Credit Agreement), the Banks (as defined in the
Credit Agreement), Citicorp USA, Inc., as Administrative Agent for the Banks
(the "Administrative Agent"), and Deutsche Bank AG New York Branch and/or Cayman
Islands Branch, as Syndication Agent. Terms defined in the Credit Agreement and
not defined herein are used herein with the same meaning.
Borrower and ______________ (the "New Bank") agree as follows:
1. New Bank hereby agrees to increase the amount of the Total
Commitment under the Credit Agreement to the amount set forth in Schedule 1
hereto, and the New Bank hereby agrees to become a Bank under the Credit
Agreement with the Commitment set forth opposite the New Bank's name on Schedule
1 hereto, as such amount may be reduced or changed pursuant to Sections 3.5, 3.6
and 11.11 of the Credit Agreement as of the Effective Date (defined below). As
of the Effective Date, the percentage interest and Commitment of each of the
Banks shall be as set forth on Schedule 1 hereto. Borrower hereby agrees to pay
to the Administrative Agent, on or prior to the Effective Date, the amount of
$3,500 in immediately available funds by wire transfer to the office of the
Administrative Agent.
2. The New Bank (i) confirms that it has received a copy of the
Credit Agreement, together with copies of such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into this Additional Commitment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Administrative Agent or any other
Bank and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking
action under the Credit Agreement; (iii) confirms that it is an Eligible
Assignee; (iv) appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (v) agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of the Credit Agreement are required to be performed by it as a Bank;
and (vi) specifies as its Lending Office or Lending Offices (and address for
notices) the offices set forth beneath its name on the signature pages hereof.
3. Following the execution of this Additional Commitment and
Acceptance by the Borrower and the New Bank, the Additional Commitment and
Acceptance will be delivered to the Administrative Agent for acceptance and
recording by the Administrative Agent. The effective date of this Additional
Commitment and Acceptance shall be the first date after acceptance thereof by
the Administrative Agent on which all Eurodollar Loans are simultaneously
converted to Loans of another type or Interest Period pursuant to Section 2.8 of
L-1
the Credit Agreement, provided that if no Eurodollar Loans are outstanding on
the date of acceptance by Administrative Agent, the effective date shall be the
date of acceptance by Administrative Agent (the "Effective Date").
4. Upon such acceptance and recording by the Administrative Agent,
as of the Effective Date, the New Bank shall be a party to the Credit Agreement
and, to the extent provided in this Additional Commitment and Acceptance, have
the rights and obligations of a Bank thereunder.
5. Upon such acceptance and recording by the Administrative Agent,
from and after the Effective Date, the Administrative Agent shall make all
payments under the Credit Agreement in respect of the Commitment of the New Bank
hereunder (including, without limitation, all payments of principal, interest
and fees with respect thereto) to the New Bank.
6. The Additional Commitment and Acceptance shall be governed by,
and construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Additional
Commitment and Acceptance to be executed by their respective officers thereunto
duly authorized, as of the date first above written, such execution being made
on Schedule 1 hereto.
L-2
Schedule 1
to
Additional Commitment and Acceptance
Dated __________, ____
Section 1. Percentage Interest of each of the Banks:
---------
[name of Bank] [% interest]
100%
Section 2. Commitments:
---------
[name of Bank] [amount of Commitment]
Total Commitment: $
Section 3.
---------
Effective Date **: __________, ______
SURFIN LTD.
By:_________________________
Title:
[NAME OF NEW BANK]
By:_________________________
Title:
Domestic Lending Office (and
address for notices):
[Address]
Eurodollar Lending Office:
[Address]
_________________________
** This date should be no earlier than the date of acceptance by the
Administrative Agent.
Schedule 1-2
Accepted this ____ day
of __________, ______
CITICORP USA, INC., as Administrative Agent
By:_________________________
Title:
Schedule 1-2
GUARANTY
--------
THIS GUARANTY, dated as of September 20, 2000, is made by XXXXXX
ELECTRONICS CORPORATION, a Delaware corporation (the "Guarantor"), in favor of
---------
CITICORP USA, INC., a Delaware corporation, as Administrative Agent for and
representative of the financial institutions party to the Credit Agreement
defined below (together with its successors and permitted assignees in such
capacity, the "Administrative Agent").
--------------------
RECITALS
--------
A. The Guarantor is an owner, directly or indirectly, of
approximately 75.049% of the equity of SurFin Ltd., an international business
company incorporated under the laws of the Bahamas (the "Borrower"). Pursuant
--------
to that certain Credit Agreement of even date herewith (as it may be amended,
supplemented or otherwise modified from time to time the "Credit Agreement")
----------------
among the Borrower, the Designated Subsidiaries (as defined in the Credit
Agreement), the Banks party thereto, the Administrative Agent, as agent for the
Banks and Deutsche Bank AG New York Branch and/or Cayman Islands Branch as
syndication agent, the Banks have agreed to make available a $150,000,000
revolving credit facility to the Borrower and the Designated Subsidiaries (each
an "Obligor" and collectively the "Obligors"), which may be increased to no more
than $225,000,000. The Borrower has advised the Guarantor, the Administrative
Agent and the Banks that the Obligors intend to use the proceeds of the such
revolving credit facility to finance the development in Mexico and various
countries in the Caribbean, Central America and South America of a satellite
television service.
B. The Banks are willing to enter into the Credit Agreement on the
condition that the Guarantor guarantees, jointly and severally with the other
owners (or their affiliates) of the Borrower, the payment of the Borrower's
obligations under the Credit Agreement pursuant to the terms of this Guaranty.
NOW, THEREFORE, in consideration of the foregoing promises and other
good and valuable consideration, receipt and sufficiency of which are
acknowledged, the Guarantor hereby agrees as follows:
1. Definitions. Capitalized terms not otherwise defined in this
-----------
Guaranty shall have the meanings given them in the Credit Agreement.
2. Guaranty.
--------
(a) The Guarantor hereby irrevocably and unconditionally,
guarantees the punctual payment when due of all payment obligations of the
Obligors under the Credit Agreement, up to a maximum amount as to principal of
US$225,000,000 plus all interest, fees, indemnities and other amounts payable
under the Credit Agreement, including amounts that would become due but for the
operation of the automatic stay under Section 362(c) of the United States
Bankruptcy Code or similar provisions under the laws of the Bahamas, The
Netherlands, the United Mexican States or other applicable law (collectively,
the "Guaranteed Obligations"). In the event that any of the Guaranteed
----------------------
Obligations shall not be paid when due within any specified grace period
provided for in the Credit Agreement, the Guarantor agrees to pay such
Guaranteed Obligations within ten Business Days after the giving by the
Administrative Agent to
the Guarantor and the Process Agent named in Section 15 hereof of written notice
(a "Demand") demanding payment by the Guarantor, provided that in the event any
--------
such payment is required to be made by the Guarantor hereunder, the Guarantor
may cause such obligation or liability to be paid on its behalf by any
corporation affiliated with it, including the Obligors, provided that the
Guarantor shall nevertheless be unconditionally obligated to pay such obligation
or liability if such affiliate, including the Obligors, shall fail timely to pay
such obligation or liability.
(b) This Guaranty is a guarantee of payment and not of performance or
collection. The obligation of the Guarantor hereunder shall be independent of
the obligation of any other Guarantor (as such term is defined in the Credit
Agreement), all such obligations being joint and several.
(c) The Guarantor shall be subrogated to all rights of the Banks
against the Obligors in respect of any amounts paid by the Guarantor pursuant to
the provisions of this Guaranty; provided, however, that the Guarantor shall not
-------- -------
be entitled to enforce or receive any payments arising out of, or based upon,
such right of subrogation until all the Guaranteed Obligations shall have been
irrevocably and indefeasibly paid in full and no Guaranteed Obligations may
arise in the future.
3. Guaranty Absolute. The liability of the Guarantor under this Guaranty
-----------------
with respect to each and all of the Guaranteed Obligations shall be irrevocable
and shall be absolute and unconditional irrespective of, and shall not be
released, discharged or in any way affected by, any circumstance, condition or
matter (whether or not the Guarantor or any Obligor shall have any knowledge or
notice thereof), including, without limitation:
(a) any amendment, waiver, extension or renewal of, or any consent to
departure from, the Credit Agreement, including, without limitation, any waiver
or consent involving a change in the time, manner or place of payment of all or
any of the Guaranteed Obligations;
(b) any exchange, release or nonperfection of any collateral, or any
release or amendment or waiver of or consent or departure from any other
guaranty or security agreement, for all or any of the Guaranteed Obligations;
(c) any extension of the time for payment by any Obligor or any other
person of any Guaranteed Obligation under the Credit Agreement or any other
document related thereto;
(d) any failure, omission or delay by the Administrative Agent or the
Banks to enforce, assert or exercise any right, power or remedy conferred on or
available to it;
(e) any inability, lack of authority or legal disability of any
Obligor to perform any agreement, covenant, term or condition contained in the
Credit Agreement for any reason (whether or not the Guarantor shall have any
knowledge or notice thereof), including, without limitation, provisions of any
law or regulation of any jurisdiction (including the Bahamas, The Netherlands
and the United Mexican States) purporting to prohibit or excuse payment or
performance by any Obligor of its obligations under the Credit Agreement;
2
(f) the voluntary or involuntary liquidation, dissolution, sale of
assets, marshalling of assets and liabilities, receivership, conservatorship,
custodianship, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of or similar
proceeding affecting any Obligor, the Guarantor, the Administrative Agent, the
Banks or any other person or any of their respective properties or creditors, or
any action taken by any trustee or receiver or by any court in any such
proceeding;
(g) any merger or consolidation of any Obligor into or with any person
or any sale, lease or transfer of any of the assets of any Obligor to any other
person;
(h) any change in corporate relationship between any Obligor and the
Guarantor or any termination of any such relationship;
(i) any counterclaim, set-off, deduction or defense any Obligor, the
Guarantor or any other Person may have against the Administrative Agent, the
Banks or any other person other than indefeasible payment in full; and
(j) any other circumstance whatsoever, whether similar or dissimilar
to the foregoing, which might otherwise constitute a legal or equitable defense
available to, or a discharge of, the Guarantor in respect of this Guaranty.
This Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment by any Obligor, the Guarantor or any
other person of any of the Guaranteed Obligations owed hereunder is rescinded or
must otherwise be returned by the Administrative Agent or the Banks upon the
insolvency, bankruptcy or reorganization of any Obligor, the Guarantor or any
other person, all as though such payment had not been made. If the payment of
any sum required to be made by any Obligor under the Credit Agreement shall at
any time be prevented by reason of a case or proceeding under bankruptcy,
insolvency or other similar law, the Guarantor agrees that, for purposes of this
Guaranty and its obligations hereunder, such sum shall be deemed to be payable
in accordance with the terms of the Credit Agreement, and the Guarantor shall
pay such sum and any other amounts guaranteed hereunder.
4. Waiver by the Guarantor. The Guarantor hereby unconditionally
-----------------------
waives, to the greatest extent permitted by applicable law, (i) any and all
notice of the creation, renewal, extension or accrual of any of the Guaranteed
Obligations and notice of or proof of reliance by the Banks upon this Guaranty,
or acceptance of this Guaranty, and the Guaranteed Obligations, (ii) any
requirement that the Banks exhaust any right or take any action against any
Obligor, any other guarantor or any other person or any collateral, (iii) any
and all rights which the Guarantor may have or which at any time hereafter may
be conferred upon it, by statute (including but not limited to any statute of
limitations), regulation or otherwise, to terminate or cancel this Guaranty,
(iv) all notices which may be required by statute, rule of law or otherwise to
preserve any rights against the Guarantor hereunder, including, without
limitation, any demand, presentment, protest, proof or notice of nonpayment of
any amounts payable under or in respect of the Credit Agreement, and notice of
any failure on the part of any Obligor to perform and comply with any term or
condition of the Credit Agreement, (v) any rights to the enforcement, assertion
or exercise of any right, remedy, power or privilege under or in respect of the
Credit Agreement, (vi) any requirement of diligence and (vii) notice of
acceptance of this Guaranty.
3
The Administrative Agent shall have the right to bring suit directly against the
Guarantor with respect to the Guaranteed Obligations, either prior to or
concurrently with any lawsuit against, or without bringing suit against, any
Obligor.
5. Continuing Guaranty. This Guaranty is a continuing guaranty and
-------------------
shall (a) be irrevocable and remain in full force and effect in accordance with
the terms hereof until all of the Guaranteed Obligations, including those which
might arise at a later date, have been paid in full and are not subject to
rescission or return, (b) be binding upon the Guarantor and its successors and
assigns, and (c) inure to the benefit of and be enforceable by the successors,
transferees and assigns of the Administrative Agent and the Banks permitted by
the Credit Agreement. The Guarantor agrees that in the discharge of its
obligations hereunder no judgment, order, or exhaustion need be obtained, and no
action, suit or proceeding need be brought and no other remedies need be
exhausted against any Obligor or any other person for performance by the
Guarantor of its obligations hereunder
6. Representations. The Guarantor represents and warrants to the
---------------
Administrative Agent as follows:
(a) The Guarantor is a corporation validly existing and in good
standing under the laws of its jurisdiction of incorporation and the execution,
delivery and performance of this Guaranty are within its corporate powers and
are not in contravention of the terms of its charter or bylaws.
(b) The execution, delivery and performance of this Guaranty have
been duly authorized by all requisite corporate action of the Guarantor, and
this Guaranty has been duly executed and delivered by the Guarantor and
constitutes its legal, valid and binding obligation and is enforceable against
the Guarantor in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization or other laws now
or hereafter affecting the rights of creditors.
(c) The execution, delivery and performance of this Guaranty will
not violate or conflict with (i) any provision of any law or regulation binding
on the Guarantor, or any order, judgment, award or decree of any court,
arbitrator or governmental authority binding on the Guarantor, or any securities
issued by the Guarantor, or any mortgage, indenture, lease, contract or other
agreement, instrument or undertaking to which the Guarantor is a party or by
which the Guarantor or any of its assets may be bound, the violation of which
would have a material adverse effect on the business, operations, assets or
financial condition of the Guarantor, or (ii) the certificate of incorporation
or bylaws of the Guarantor, and will not result in, or require, the creation or
imposition of any Lien on any of its property, assets or revenues pursuant to
the provisions of any such mortgage, indenture, lease, contract or other
agreement, instrument or undertaking.
7. Financial Information; Access.
-----------------------------
(a) So long as the Credit Agreement remains in effect the
Guarantor agrees (i) to provide to the Administrative Agent a copy of all such
reports and financial information pertaining to the Guarantor as shall be filed
by or on behalf of the Guarantor with
4
the Securities and Exchange Commission, promptly after the same are so filed,
and (ii) to provide to the Administrative Agent such other financial information
as the Administrative Agent may reasonably request.
(b) The Guarantor further agrees to permit the Administrative Agent
reasonable access, upon prior notice and at reasonable times during normal
business hours, to the Guarantor's books, records, and financial or accounting
personnel, to the extent relevant to this Guaranty or the Credit Agreement;
provided, however, that such access shall be in compliance with security and
confidentiality requirements of applicable governmental authorities and the
Guarantor's corporate policies relating to confidential information
8. Merger, Consolidation or Other Transfers.
----------------------------------------
(a) The Guarantor shall not consolidate with or merge into any other
person or convey, transfer or lease all or substantially all of its assets as an
entirety to any person unless:
(i) such successor entity or such person to whom the conveyance,
transfer or lease is made (such successor entity, together with any successor
entity described in Section 8(b) below, being referred to herein as a "Successor
---------
Guarantor") shall expressly assume in writing by instrument or instruments
---------
enforceable against it reasonably satisfactory in form and substance to the
Administrative Agent, the due and punctual payment of all obligations of the
Guarantor under this Guaranty with the same effect as if such Successor
Guarantor had originally been named a Guarantor herein or had been a party
hereto;
(ii) immediately after giving effect to such transaction, no Event of
Default shall exist and this Guaranty shall be in full force and effect; and
(iii) the Successor Guarantor shall have delivered to the
Administrative Agent an opinion of counsel in scope and substance reasonably
satisfactory to it stating that such consolidation, merger, conveyance, transfer
or lease and the assumption agreement required by clause (i) above comply with
this Section 8.
(b) Except as provided in subsection 8(a) above, the Guarantor shall
not assign or delegate its obligations under this Guaranty; provided that the
--------
Guarantor may assign and delegate its obligations under this Guaranty to a
successor entity as a part of the transfer of all or substantially all of the
assets of its Direct TV International Division to such successor entity
(including, without limitation, a Subsidiary of the Guarantor) as an entirety as
long as all of the following conditions have been satisfied:
(i) such assignment and delegation shall have been approved by the
Administrative Agent and all of the Banks, which consent shall not be
unreasonably withheld;
(ii) the conditions in clauses (i) through (iii) of subsection 8(a)
have been satisfied with respect to such assignment and delegation; and
(iii) the Successor Guarantor to whom such transfer, delegation and
assignment is made shall have a credit rating on its senior unsecured debt, as
determined by each
5
of Xxxxx'x Investors Service, Inc. (or any successor thereto) and Standard &
Poor's Ratings Group (or any successor thereto), at least as favorable as the
unsecured debt of the Guarantor at such date after giving effect to such
transfer, assignment and delegation, but in no event lower than Baa3 by Xxxxx'x
Investors Service, Inc. or BBB- by Standard & Poor's Ratings Group, and, in
either case, the rating of such Successor Guarantor's senior unsecured debt
shall not be under review with negative implications by such rating agency at
such date after giving effect to such transfer, assignment and delegation.
(c) Upon any such consolidation or merger, conveyance, transfer or
lease in accordance with the provisions of (a) or (b) above, the successor
formed by such consolidation or into which the Guarantor is merged, or the
person to which such conveyance, transfer or lease is made, shall succeed to,
and be substituted for, the Guarantor as a Guarantor, with the same effect as if
such Successor Guarantor had been originally named as a Guarantor.
9. Taxes. All payments or reimbursements under this Guaranty and any
-----
instrument or agreement required hereunder shall be made without set-off or
counterclaim and free and clear of and without deduction for any and all present
and future Taxes (as defined below). The Guarantor agrees to cause all such
Taxes to be paid on behalf of any Bank or Administrative Agent directly to the
appropriate governmental authority. If the Guarantor is legally prohibited from
complying with this Section, payments due to such Bank or Administrative Agent
under this Guaranty and any instrument or agreement required hereunder shall be
increased so that, after provisions for Taxes and all Taxes on such increase,
the amounts received by such Bank or Administrative Agent will be equal to the
amounts required under this Guaranty and any instrument or agreement required
hereunder as if no Taxes were due on such payments. The Guarantor shall
indemnify each Bank and Administrative Agent for the full amount of Taxes
payable by such Bank or Administrative Agent and any liabilities (including
penalties, interest and expenses) arising from such Taxes within thirty (30)
days from any written demand by such Bank. The Guarantor shall provide evidence
that all applicable Taxes have been paid to the appropriate taxing authorities
by delivering to Administrative Agent official tax receipts or notarized copies
or other evidence thereof satisfactory to Administrative Agent, within ninety
(90) days after the due date for such Tax payment. Such Bank will designate a
different Lending Office if such designation will avoid the need for, or reduce
the amount of, such payment or reimbursement and will not be otherwise
disadvantageous to such Bank in the sole discretion of such Bank.
For purposes of this Section 9, "Tax" and "Taxes" means (i) all taxes,
levies, imposts, duties, fees or other charges of whatsoever nature however
imposed by any country or any subdivision or authority of or in that country in
any way connected with the Credit Agreement or this Guaranty or any instrument
or agreement required hereunder, and all interest, penalties or similar
liabilities with respect thereto, except such taxes as are imposed on or
measured by the Administrative Agent's or any Bank's net income or capital and
franchise taxes, by the country or any subdivision or authority of or in that
country in which the Administrative Agent's or such Bank's principal office or
actual Lending Office is located, and (ii) any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Guaranty.
6
10. Amendments, Etc. No amendment or waiver of any provision of this
----------------
Guaranty shall in any event be effective with respect to the Administrative
Agent unless the same shall be in writing and signed by the Administrative
Agent.
11. No Waiver; Remedies. No failure on the part of the
-------------------
Administrative Agent to exercise, and no delay in its exercise of, any right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right hereunder by the Administrative Agent preclude any other
or further exercise thereof or the exercise of any other right by it. Subject
to Section 11.1 of the Credit Agreement, the Administrative Agent may
specifically waive any breach of this Guaranty by the Guarantor; provided that
--------
no such waiver shall be effective or binding unless in writing, and that no such
waiver shall constitute a continuing waiver of similar or other breaches.
12. Separability of This Guaranty. In case any term or provision of
-----------------------------
this Guaranty or any application hereof to any circumstance shall, in any
circumstances or jurisdiction and to any extent, be invalid, illegal or
unenforceable, such term or provision shall be ineffective as to such
jurisdiction to the extent of such invalidity, illegality or unenforceability
without invalidating or rendering unenforceable any remaining terms and
provisions hereof or the application of such term or provision to circumstances
or jurisdictions other than those as to which it is held invalid, illegal or
unenforceable. To the extent permitted by applicable law, the Guarantor hereby
waives any provision of law that renders any term or provision hereof invalid,
illegal or unenforceable in any respect.
13. Headings. The headings contained in this Guaranty are for
--------
convenience of reference only and shall not modify, define or limit any of the
terms or provisions hereof.
14. Governing Law. THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF
-------------
THE GUARANTOR, THE ADMINISTRATIVE AGENT AND THE BANKS HEREUNDER SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION 5-
1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES.
15. Proceedings, Etc. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST THE
-----------------
GUARANTOR ARISING OUT OF OR RELATING TO THIS GUARANTY MAY BE BROUGHT IN ANY
STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF NEW YORK, AND
BY EXECUTION AND DELIVERY OF THIS GUARANTY THE GUARANTOR ACCEPTS FOR ITSELF AND
IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH THIS GUARANTY. The Guarantor hereby designates and
appoints CT Corporation System, presently located at 0000 Xxxxxxxx, Xxx Xxxx,
X.X. 00000 as its authorized agent (the "Process Agent") to accept and
acknowledge on its behalf service of any and all process which may be served in
any suit, action or proceeding in any New York State or United States Federal
Court sitting in
7
New York, and to receive and acknowledge on behalf of the Guarantor any Demands
made by the Administrative Agent pursuant to Section 2 hereof. The Guarantor
represents and warrants that the Process Agent has agreed in writing to accept
such appointment and that true copies of such acceptance will be furnished to
the Administrative Agent prior to the Effective Date under the Credit Agreement.
The Guarantor agrees that the failure of the Process Agent to give notice to the
Guarantor of any such service or Demand shall not impair the validity of such
service or Demand or of any judgment rendered in any action or proceeding based
thereon. Service of all process in any such proceeding in any such court and of
any Demand under Section 2 hereof may be made by hand delivery, courier service
or by registered or certified mail, return receipt requested, to the Process
Agent, such service being hereby acknowledged by the Guarantor to be sufficient
for personal jurisdiction in any action against the Guarantor in any such court
and to be otherwise effective and binding service or demand in every respect.
Nothing herein shall affect the right to serve process in any other manner
permitted by law or shall limit the right of the Administrative Agent or any
Bank to bring proceedings against the Guarantor in the courts of any other
jurisdiction.
16. Jury Trial Waiver. THE GUARANTOR AND, BY ITS ACCEPTANCE OF THE
-----------------
BENEFITS HEREOF, THE ADMINISTRATIVE AGENT EACH HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS GUARANTY. The scope of this waiver is intended to be all-
encompassing of any and all disputes that may be filed in any court and that
relate to the subject matter of this transaction, including without limitation
contract claims, tort claims, breach of duty claims and all other common law and
statutory claims. The Guarantor and, by its acceptance of the benefits hereof,
the Administrative Agent each (i) acknowledges that this waiver is a material
inducement for the Guarantor and Administrative Agent to enter into a business
relationship, that the Guarantor and Administrative Agent have already relied on
this waiver in entering into this Guaranty or accepting the benefits thereof, as
the case may be, and that each will continue to rely on this waiver in their
related future dealings, and (ii) further warrants and represents that each has
reviewed this waiver with its legal counsel and that each knowingly and
voluntarily waives its jury trial rights following consultation with legal
counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, EXCEPT BY A WRITTEN INSTRUMENT SPECIFICALLY REFERRING TO
THIS SECTION 16, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS OF THIS GUARANTY. In the event of
litigation, this Guaranty may be filed as a written consent to a trial by the
court.
17. Counterparts. This Guaranty may be executed in any number of
------------
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed to be an original for
all purposes; but all such counterparts together shall constitute but one and
the same instrument. This Guaranty shall become effective as to the Guarantor
upon the execution of a counterpart hereof by the Guarantor and receipt by
Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
18. Cost and Attorneys Fees. The Guarantor agrees to pay, or cause
-----------------------
to be paid, in addition to the Guaranteed Obligations, on demand, and to save
the Administrative
8
Agent and the Banks harmless against liability for, any and all costs and
expenses (including reasonable fees and disbursements of counsel) incurred or
expended by Administrative Agent or any Bank in connection with the enforcement
of or preservation of any rights under this Guaranty.
19. Effect of Obligor's Bankruptcy. The Guarantor acknowledges and
------------------------------
agrees that any interest on any portion of the Guaranteed Obligations which
accrues after the commencement of any proceeding, voluntary or involuntary,
involving the bankruptcy, insolvency, receivership, reorganization, liquidation
or arrangement of any Obligor (or, if interest on any portion of the Guaranteed
Obligations ceases to accrue by operation of law by reason of the commencement
of said proceeding, such interest as would have accrued on such portion of the
Guaranteed Obligations if said proceeding had not been commenced) shall be
included in the Guaranteed Obligations because it is the intention of the
Guarantor, the Administrative Agent and the Banks that the Guaranteed
Obligations which are guarantied by the Guarantor pursuant to this Guaranty
should be determined without regard to any rule of law or order which may
relieve any Obligor of any portion of such Guaranteed Obligations.
20. Notices. All notices, requests, consents and other
-------
communications under this Guaranty shall be in writing and shall be deemed to
have been given to the Guarantor when received, if hand delivered or sent by
courier service, on the third Business Day after mailing, if mailed by
registered or certified mail, postage prepaid, on the business day of receipt if
telecopied, in each case addressed to the Guarantor at its address set forth
below its signature or to such other address as the Guarantor may designate by
written notice to the Administrative Agent; provided that Demands made by the
Administrative Agent under Section 2 and service of process under Section 15 may
also be given to the Process Agent.
21. Entire Agreement. This Guaranty represents the final agreement
----------------
of the Guarantor with respect to its obligations to the Banks in connection with
the Credit Agreement and may not be contradicted by evidence of prior written
agreements or prior, contemporaneous or subsequent oral agreements of the
Guarantor or any other person. There are no unwritten oral agreements of the
Guarantor in favor of the Banks.
9
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duty
executed as of the date first above written.
XXXXXX ELECTRONICS CORPORATION
By: _______________________
Name: _____________________
Title: ____________________
Address:
Bldg. Cl, M/S A170
000 Xxxxx Xxxxxxxxx Xxxx.
Xx Xxxxxxx, XX 00000
Attention: Treasurer
GUARANTY
--------
THIS GUARANTY, dated as of September 20, 2000, is made by XXXXXXX
INVESTMENTS LLC, an exempted company organized and existing under the laws of
the Cayman Islands, the "Guarantor"), in favor of CITICORP USA, INC., a Delaware
---------
corporation, as Administrative Agent for and representative of the financial
institutions party to the credit Agreement defined below (together with its
successors and permitted assignees in such capacity, the "Administrative
--------------
Agent").
-----
RECITALS
--------
A. The Guarantor is an owner, directly or indirectly, of
approximately 24.951% of the equity of SurFin Ltd., an international business
company incorporated under the laws of the Bahamas (the "Borrower"). Pursuant
--------
to that certain Credit Agreement of even date herewith (as it may be amended,
supplemented or otherwise modified from time to time the "Credit Agreement")
----------------
among the Borrower the Designated Subsidiaries (as defined in the Credit
Agreement), the Banks party thereto, the Administrative Agent, as agent for the
Banks and Deutsche Bank AG New York Branch and/or Cayman Islands Branch as
syndication agent, the Banks have agreed to make available a $150,000,000
revolving credit facility to the Borrower and the Designated Subsidiaries (each
an "Obligor" and collectively the "Obligors"), which may be increased to no more
than $225,000,000. The Borrower has advised the Guarantor, the Administrative
Agent and the Banks that the Obligors intend to use the proceeds of the such
revolving credit facility to finance the development in Mexico and various
countries in the Caribbean, Central America and South America of a satellite
television service.
B. The Banks are willing to enter into the Credit Agreement on the
condition that the Guarantor guarantees, jointly and severally with the other
owners (or their affiliates) of the Borrower, the payment of the Borrower's
obligations under the Credit Agreement pursuant to the terms of this Guaranty.
NOW, THEREFORE, in consideration of the foregoing promises and other
good and valuable consideration, receipt and sufficiency of which are
acknowledged, the Guarantor hereby agrees as follows:
1. Definitions. Capitalized terms not otherwise defined in this
-----------
Guaranty shall have the meanings given them in the Credit Agreement.
2. Guaranty.
--------
(a) The Guarantor hereby irrevocably and unconditionally,
guarantees the punctual payment when due of all payment obligations of the
Borrower under the Credit Agreement, up to a maximum amount as to principal of
US$225,000,000 plus all interest, fees, indemnities and other amounts payable
under the Credit Agreement, including amounts that would become due but for the
operation of the automatic stay under Section 362(c) of the United States
Bankruptcy Code or similar provisions under the laws of the Bahamas, The
Netherlands, the United Mexican States or other applicable law (collectively,
the "Guaranteed Obligations").
----------------------
In the event that any of the Guaranteed Obligations shall not be paid when due
within any specified grace period provided for in the Credit Agreement, the
Guarantor agrees to pay such Guaranteed Obligations within ten Business Days
after the giving by the Administrative Agent to the Guarantor Notice Agent named
in Section 20 hereof and the Process Agent named in Section 15 hereof of notice
(a "Demand") demanding payment by the Guarantor, provided that in the event any
--------
such payment is required to be made by the Guarantor hereunder, the Guarantor
may cause such obligation or liability to be paid on its behalf by any
corporation affiliated with it, including the Obligors, provided that the
Guarantor shall nevertheless be unconditionally obligated to pay such obligation
or liability if such affiliate, including the Obligors, shall fail timely to pay
such obligation or liability.
(b) This Guaranty is a guarantee of payment and not of performance or
collection. The obligation of the Guarantor hereunder shall be independent of
the obligation of any other Guarantor (as such term is defined in the Credit
Agreement), all such obligations being joint and several.
(c) The Guarantor shall be subrogated to all rights of the Banks
against the Obligors in respect of any amounts paid by the Guarantor pursuant to
the provisions of this Guaranty; provided, however, that the Guarantor shall not
-------- -------
be entitled to enforce or receive any payments arising out of, or based upon,
such right of subrogation until all the Guaranteed Obligations shall have been
irrevocably and indefeasibly paid in full and no Guaranteed Obligations may
arise in the future.
3. Guaranty Absolute. The liability of the Guarantor under this
-----------------
Guaranty with respect to each and all of the Guaranteed Obligations shall be
irrevocable and shall be absolute and unconditional irrespective of, and shall
not be released, discharged or in any way affected by, any circumstance,
condition or matter (whether or not the Guarantor or any Obligor shall have any
knowledge or notice thereof), including, without limitation:
(a) any amendment, waiver, extension or renewal of, or any
consent to departure from, the Credit Agreement, including, without limitation,
any waiver or consent involving a change in the time, manner or place of payment
of all or any of the Guaranteed Obligations;
(b) any exchange, release or nonperfection of any collateral, or
any release or amendment or waiver of or consent or departure from any other
guaranty or security agreement, for all or any of the Guaranteed Obligations;
(c) any extension of the time for payment by any Obligor or any
other person of any Guaranteed Obligation under the Credit Agreement or any
other document related thereto;
(d) any failure, omission or delay by the Administrative Agent
or the Banks to enforce, assert or exercise any right, power or remedy conferred
on or available to it;
(e) any inability, lack of authority or legal disability of any
Obligor to perform any agreement, covenant, term or condition contained in the
Credit Agreement for any
2
reason (whether or not the Guarantor shall have any knowledge or notice
thereof), including, without limitation, provisions of any law or regulation of
any jurisdiction (including the Bahamas, The Netherlands and the United Mexican
States) purporting to prohibit or excuse payment or performance by any Obligor
of its obligations under the Credit Agreement;
(f) the voluntary or involuntary liquidation, dissolution, sale
of assets, marshalling of assets and liabilities, receivership, conservatorship,
custodianship, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of or similar
proceeding affecting any Obligor, the Guarantor, the Administrative Agent, the
Banks or any other person or any of their respective properties or creditors, or
any action taken by any trustee or receiver or by any court in any such
proceeding;
(g) any merger or consolidation of any Obligor into or with any
person or any sale, lease or transfer of any of the assets of any Obligor to any
other person;
(h) any change in corporate relationship between any Obligor and
the Guarantor or any termination of any such relationship;
(i) any counterclaim, set-off, deduction or defense any Obligor,
the Guarantor or any other Person may have against the Administrative Agent, the
Banks or any other person other than indefeasible payment in full; and
(j) any other circumstance whatsoever, whether similar or
dissimilar to the foregoing, which might otherwise constitute a legal or
equitable defense available to, or a discharge of, the Guarantor in respect of
this Guaranty.
This Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment by any Obligor, the Guarantor or any
other person of any of the Guaranteed Obligations owed hereunder is rescinded or
must otherwise be returned by the Administrative Agent or the Banks upon the
insolvency, bankruptcy or reorganization of any Obligor, the Guarantor or any
other person, all as though such payment had not been made. If the payment of
any sum required to be made by any Obligor under the Credit Agreement shall at
any time be prevented by reason of a case or proceeding under bankruptcy,
insolvency or other similar law, the Guarantor agrees that, for purposes of this
Guaranty and its obligations hereunder, such sum shall be deemed to be payable
in accordance with the terms of the Credit Agreement, and the Guarantor shall
pay such sum and any other amounts guaranteed hereunder.
4. Waiver by the Guarantor. The Guarantor hereby unconditionally
-----------------------
waives, to the greatest extent permitted by applicable law, (i) any and all
notice of the creation, renewal, extension or accrual of any of the Guaranteed
Obligations and notice of or proof of reliance by the Banks upon this Guaranty,
or acceptance of this Guaranty, and the Guaranteed Obligations, (ii) any
requirement that the Banks exhaust any right or take any action against any
Obligor, any other guarantor or any other person or any collateral, (iii) any
and all rights which the Guarantor may have or which at any time hereafter may
be conferred upon it, by statute (including but not limited to any statute of
limitations), regulation or otherwise, to terminate or cancel this Guaranty,
(iv) all notices which may be required by statute, rule of law or otherwise to
preserve any rights against the Guarantor hereunder, including, without
limitation, any demand,
3
presentment, protest, proof or notice of nonpayment of any amounts payable under
or in respect of the Credit Agreement, and notice of any failure on the part of
any Obligor to perform and comply with any term or condition of the Credit
Agreement, (v) any rights to the enforcement, assertion or exercise of any
right, remedy, power or privilege under or in respect of the Credit Agreement,
(vi) any requirement of diligence and (vii) notice of acceptance of this
Guaranty. The Administrative Agent shall have the right to bring suit directly
against the Guarantor with respect to the Guaranteed Obligations, either prior
to or concurrently with any lawsuit against, or without bringing suit against,
any Obligor.
5. Continuing Guaranty. This Guaranty is a continuing guaranty and
-------------------
shall (a) be irrevocable and remain in full force and effect in accordance with
the terms hereof until all of the Guaranteed Obligations, including those which
might arise at a later date, have been paid in full and are not subject to
rescission or return, (b) be binding upon the Guarantor and its successors and
assigns, and (c) inure to the benefit of and be enforceable by the successors,
transferees and assigns of the Administrative Agent and the Banks permitted by
the Credit Agreement. The Guarantor agrees that in the discharge of its
obligations hereunder no judgment, order, or exhaustion need be obtained, and no
action, suit or proceeding need be brought and no other remedies need be
exhausted against any Obligor or any other person for performance by the
Guarantor of its obligations hereunder
6. Representations. The Guarantor represents and warrants to the
---------------
Administrative Agent as follows:
(a) The Guarantor is an exempted company validly existing and in
good standing under the laws of the Cayman Islands and the execution, delivery
and performance of this Guaranty are within its corporate powers and are not in
contravention of the terms of its Certificate of Incorporation, Memorandum of
Association or Articles of Association.
(b) The execution, delivery and performance of this Guaranty
have been duly authorized by all requisite corporate action of the Guarantor,
and this Guaranty has been duly executed and delivered by the Guarantor and
constitutes its legal, valid and binding obligation and is enforceable against
the Guarantor in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization or other laws now
or hereafter affecting the rights of creditors.
(c) The execution, delivery and performance of this Guaranty
will not violate or conflict with (i) any provision of any law or regulation
binding on the Guarantor, or any order, judgment, award or decree of any court,
arbitrator or governmental authority binding on the Guarantor or any securities
issued by the Guarantor, or any mortgage, indenture, lease, contract or other
agreement, instrument or undertaking to which the Guarantor is a party or by
which the Guarantor or any of its assets may be bound, the violation of which
would have a material adverse effect on the business, operations, assets or
financial condition of the Guarantor or (ii) the Certificate of Incorporation,
Memorandum of Association or Articles of Association of the Guarantor, and will
not result in, or require, the creation or imposition of any Lien on any of its
property, assets or revenues pursuant to the provisions of any such mortgage,
indenture, lease, contract or other agreement, instrument or undertaking.
4
7. Financial Information; Access. So long as the Credit Agreement
-----------------------------
remains in effect the Guarantor agrees (i) to provide to the Administrative
Agent, upon its reasonable request from time to time, a copy of all such reports
and financial information pertaining to the Guarantor as shall be filed by or on
behalf of the Guarantor with the Securities and Exchange Commission, promptly
after the same are so filed, and (ii) to permit the Administrative Agent
reasonable access, upon prior notice and at reasonable times during normal
business hours, to the Guarantor's books and records, to the extent relevant to
this Guaranty or the Credit Agreement; provided, however, that such access shall
be in compliance with security and confidentiality requirements of applicable
governmental authorities and the Guarantor's corporate policies relating to
confidential information.
8. Merger, Consolidation or Other Transfers.
----------------------------------------
(a) The Guarantor shall not consolidate with or merge into any
other person or convey, transfer or lease all or substantially all of its assets
as an entirety to any person unless:
(i) such successor entity or such person to whom the
conveyance, transfer or lease is made (a "Successor Guarantor") shall expressly
-------------------
assume in writing by instrument or instruments enforceable against it reasonably
satisfactory in form and substance to the Administrative Agent, the due and
punctual payment of all obligations of the Guarantor under this Guaranty with
the same effect as if such Successor Guarantor had originally been named a
Guarantor herein or had been a party hereto;
(ii) immediately after giving effect to such transaction, no
Event of Default shall exist and this Guaranty shall be in full force and
effect; and
(iii) the Successor Guarantor shall have delivered to the
Administrative Agent an opinion of counsel in scope and substance reasonably
satisfactory to it stating that such consolidation, merger, conveyance, transfer
or lease and the assumption agreement required by clause (i) above comply with
this Section 8.
(b) Upon any such consolidation or merger, conveyance,
transfer or lease in accordance with the provisions of (a) above, the successor
formed by such consolidation or into which the Guarantor is merged, or the
person to which such conveyance, transfer or lease is made, shall succeed to,
and be substituted for, the Guarantor as a Guarantor, with the same effect as if
such successor had been originally named as a Guarantor.
9. Taxes. All payments or reimbursements under this Guaranty and
-----
any instrument or agreement required hereunder shall be made without set-off or
counterclaim and free and clear of and without deduction for any and all present
and future Taxes (as defined below). The Guarantor agrees to cause all such
Taxes to be paid on behalf of any Bank or Administrative Agent directly to the
appropriate governmental authority. If the Guarantor is legally prohibited from
complying with this section, payments due to such Bank or Administrative Agent
under this Guaranty and any instrument or agreement required hereunder shall be
increased so that, after provisions for Taxes and all Taxes on such increase,
the amounts received by such Bank or Administrative Agent will be equal to the
amounts required under this Guaranty and any instrument or agreement required
hereunder as if no Taxes were due on such
5
payments. The Guarantor shall indemnify each Bank and Administrative Agent for
the full amount of Taxes payable by such Bank or Administrative Agent and any
liabilities (including penalties, interest and expenses) arising from such Taxes
within thirty (30) days from any written demand by such Bank. The Guarantor
shall provide evidence that all applicable Taxes have been paid to the
appropriate taxing authorities by delivering to Administrative Agent official
tax receipts or notarized copies or other evidence thereof reasonably
satisfactory to Administrative Agent, within ninety (90) days after the due date
for such Tax payment. Such Bank will designate a different Lending Office if
such designation will avoid the need for, or reduce the amount of, such payment
or reimbursement and will not be otherwise disadvantageous to such Bank in the
sole discretion of such Bank.
For purposes of this Section 9, "Tax" and "Taxes" means (i) all taxes,
levies, imposts, duties, fees or other charges of whatsoever nature however
imposed by any country or any subdivision or authority of or in that country in
any way connected with the Credit Agreement or this Guaranty or any instrument
or agreement required hereunder, and all interest, penalties or similar
liabilities with respect thereto, except such taxes as are imposed on or
measured by the Administrative Agent's or any Bank's net income or capital and
franchise taxes, by the country or any subdivision or authority of or in that
country in which the Administrative Agent's or such Bank's principal office or
actual Lending Office is located, and (ii) any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Guaranty.
10. Amendments, Etc. No amendment or waiver of any provision of this
----------------
Guaranty shall in any event be effective with respect to the Administrative
Agent unless the same shall be in writing and signed by the Administrative
Agent.
11. No Waiver; Remedies. No failure on the part of the
-------------------
Administrative Agent to exercise, and no delay in its exercise of, any right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right hereunder by the Administrative Agent preclude any other
or further exercise thereof or the exercise of any other right by it. Subject
to Section 11.1 of the Credit Agreement, the Administrative Agent may
specifically waive any breach of this Guaranty by the Guarantor; provided that
--------
no such waiver shall be effective or binding unless in writing, and that no such
waiver shall constitute a continuing waiver of similar or other breaches.
12. Separability of This Guaranty. In case any term or provision of
-----------------------------
this Guaranty or any application hereof to any circumstance shall, in any
circumstances or jurisdiction and to any extent, be invalid, illegal or
unenforceable, such term or provision shall be ineffective as to such
jurisdiction to the extent of such invalidity, illegality or unenforceability
without invalidating or rendering unenforceable any remaining terms and
provisions hereof or the application of such term or provision to circumstances
or jurisdictions other than those as to which it is held invalid, illegal or
unenforceable. To the extent permitted by applicable law, the Guarantor hereby
waives any provision of law that renders any term or provision hereof invalid,
illegal or unenforceable in any respect.
6
13. Headings. The headings contained in this Guaranty are for
--------
convenience of reference only and shall not modify, define or limit any of the
terms or provisions hereof.
14. Governing Law. THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF
-------------
THE GUARANTOR, THE ADMINISTRATIVE AGENT AND THE BANKS HEREUNDER SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION 5-
1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES.
15. Proceedings, Etc. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST THE
-----------------
GUARANTOR ARISING OUT OF OR RELATING TO THIS GUARANTY MAY BE BROUGHT IN ANY
STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF NEW YORK, AND
BY EXECUTION AND DELIVERY OF THIS GUARANTY THE GUARANTOR ACCEPTS FOR ITSELF AND
IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH THIS GUARANTY. The Guarantor hereby designates and
appoints CT Corporation System, presently located at 0000 Xxxxxxxx, Xxx Xxxx, XX
00000, as its authorized agent (the "Process Agent") to accept and acknowledge
on its behalf service of any and all process which may be served in any suit,
action or proceeding in any New York State or United States Federal Court
sitting in New York, and to receive and acknowledge on behalf of the Guarantor
any Demands made by the Administrative Agent pursuant to Section 2 hereof. The
Guarantor represents and warrants that the Process Agent has agreed in writing
to accept such appointment and that true copies of such acceptance will be
furnished to the Administrative Agent prior to the Effective Date under the
Credit Agreement. The Guarantor agrees that the failure of the Process Agent to
give notice to the Guarantor of any such service or Demand shall not impair the
validity of such service or Demand or of any judgment rendered in any action or
proceeding based thereon. Service of all process in any such proceeding in any
such court and of any Demand under Section 2 hereof may be made by hand
delivery, courier service or by registered or certified mail, return receipt
requested, to the Process Agent, such service being hereby acknowledged by the
Guarantor to be sufficient for personal jurisdiction in any action against the
Guarantor in any such court and to be otherwise effective and binding service or
demand in every respect. Nothing herein shall affect the right to serve process
in any other manner permitted by law or shall limit the right of the
Administrative Agent or any Bank to bring proceedings against the Guarantor in
the courts of any other jurisdiction.
16. Jury Trial Waiver. THE GUARANTOR AND, BY ITS ACCEPTANCE OF THE
-----------------
BENEFITS HEREOF, THE ADMINISTRATIVE AGENT EACH HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS GUARANTY. The scope of this waiver is intended to be all-
encompassing of any and all disputes that may be filed in any court and that
relate to the subject matter of this transaction, including without limitation
contract claims, tort claims, breach of duty claims and all other common law and
statutory claims. The
7
Guarantor and, by its acceptance of the benefits hereof, the Administrative
Agent each (i) acknowledges that this waiver is a material inducement for the
Guarantor and Administrative Agent to enter into a business relationship, that
the Guarantor and Administrative Agent have already relied on this waiver in
entering into this Guaranty or accepting the benefits thereof, as the case may
be, and that each will continue to rely on this waiver in their related future
dealings, and (ii) further warrants and represents that each has reviewed this
waiver with its legal counsel and that each knowingly and voluntarily waives its
jury trial rights following consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
EXCEPT BY A WRITTEN INSTRUMENT SPECIFICALLY REFERRING TO THIS SECTION 16, AND
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS OF THIS GUARANTY. In the event of litigation, this Guaranty may be
filed as a written consent to a trial by the court.
17. Counterparts. This Guaranty may be executed in any number of
------------
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed to be an original for
all purposes; but all such counterparts together shall constitute but one and
the same instrument. This Guaranty shall become effective as to the Guarantor
upon the execution of a counterpart hereof by the Guarantor and receipt by
Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
18. Cost and Attorneys Fees. The Guarantor agrees to pay, or cause
-----------------------
to be paid, in addition to the Guaranteed Obligations, on demand, and to save
the Administrative Agent and the Banks harmless against liability for, any and
all costs and expenses (including reasonable fees and disbursements of counsel
incurred or expended by Administrative Agent or any Bank in connection with the
enforcement of or preservation of any rights under this Guaranty.
19. Effect of Borrower's Bankruptcy. The Guarantor acknowledges and
-------------------------------
agrees that any interest on any portion of the Guaranteed Obligations which
accrues after the commencement of any proceeding, voluntary or involuntary,
involving the bankruptcy, insolvency, receivership, reorganization, liquidation
or arrangement of the Borrower (or, if interest on any portion of the Guaranteed
Obligations ceases to accrue by operation of law by reason of the commencement
of said proceeding, such interest as would have accrued on such portion of the
Guaranteed Obligations if said proceeding had not been commenced) shall be
included in the Guaranteed Obligations because it is the intention of the
Guarantor, the Administrative Agent and the Banks that the Guaranteed
Obligations which are guarantied by the Guarantor pursuant to this Guaranty
should be determined without regard to any rule of law or order which may
relieve the Borrower of any portion of such Guaranteed Obligations.
20. Notices. All notices, requests, consents and other
-------
communications under this Guaranty shall be in writing and shall be deemed to
have been given to the Guarantor when received, if hand delivered or sent by
courier service, on the third Business Day after mailing, if mailed by
registered or certified mail, postage prepaid, on the business day of receipt if
telecopied, in each case addressed to the Guarantor in care of Finser
Corporation, as Guarantor Notice Agent, at Xxxxxx House, Xxxxxxx Street &
Victoria Ave., Nassau, Bahamas, Attention:
8
Xxxx XxXxxxxx (with a copy to Despacho de Especialistas en Abogacia, S.A., P.O.
Box 1884-1000, De la Casa Italia, 100 metros al este y 50 al norte, Numero 000,
Xxx Xxxx, Xxxxx Xxxx, Attention: Lic. Xxxx Xxxxx Xxxx (with copies to: (i)
Galaxy Latin America, LLC, 0000 X. Xxxxxxxxxx Xxxx., 00xx Xxxxx, Xxxx
Xxxxxxxxxx, XX 00000, Attention: X.X. Xxxxxxx and (ii) c/o Finser Corporation,
000 Xxxxxxxx Xxx, 0xx Xxxxx, Xxxxx Xxxxxx, XX 00000, Attention: General Counsel,
or to such other address in the Bahamas or the United States as the Guarantor
may designate by written notice to the Administrative Agent; provided that
Demands made by the Administrative Agent under Section 2 and service of process
under Section 15 may also be given to the Process Agent. The Guarantor hereby
designates and appoints Finser Corporation as its agent (the "Guarantor Notice
Agent") to receive and acknowledge on behalf of the Guarantor any notice,
requests, consents and other communications given under this Guaranty.
21. Judgment. (a) If for the purposes of obtaining judgment in any
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court it is necessary to convert a sum due hereunder in Dollars into another
currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the respective Bank or the
Administrative Agent could purchase Dollars with such other currency at New
York, New York, on the Business Day preceding that on which final judgment is
given.
(b) The obligation of the Guarantor in respect of any sum due from it
to Administrative Agent or any Bank hereunder shall, notwithstanding any
judgment in a currency other than Dollars, be discharged only to the extent that
on the Business Day following receipt by the Administrative Agent or any Bank of
any sum adjudged to be so due in such other currency the Administrative Agent or
such Bank may in accordance with normal banking procedures purchase Dollars with
such other currency; if the Dollars so purchased are less than the sum
originally due to the Administrative Agent or such Bank in Dollars, the
Guarantor agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify the Administrative Agent or such Bank against such loss,
and if the Dollars so purchased exceed the sum originally due to the
Administrative Agent or such Bank in Dollars, the Administrative Agent or such
Bank agrees to remit to the Guarantor such excess.
22. No Immunity. To the extent that the Guarantor has or hereafter
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may acquire any immunity from jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, the Guarantor hereby irrevocably waives such immunity in
respect of its obligations under this Guaranty and, without limiting the
generality of the foregoing, agrees that the waivers set forth in this Section
22 shall have the fullest scope permitted under the Foreign Sovereign Immunities
Act of 1976 of the United States and are intended to be irrevocable for purposes
of such Act.
23. Entire Agreement. This Guaranty represents the final agreement
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of the Guarantor with respect to its obligations to the Banks in connection with
the Credit Agreement and may not be contradicted by evidence of prior written
agreements or prior, contemporaneous or subsequent oral agreements of the
Guarantor or any other person. There are no unwritten oral agreements of the
Guarantor in favor of the Banks.
9
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duty
executed as of the date first above written.
XXXXXXX INVESTMENTS LLC
By: _________________________
Name: _______________________
Title: ______________________
By: _________________________
Name: _______________________
Title: ______________________
