SUBSIDIARIES GUARANTY
SUBSIDIARIES
GUARANTY (as amended, modified, restated and/or supplemented from time to time,
this “Guaranty”),
dated
as of September 12, 2007, made by and among each of the undersigned guarantors
(each, a “Guarantor”
and,
together with any other entity that becomes a guarantor hereunder pursuant
to
Section 22 hereof, collectively, the “Guarantors”)
in
favor of Plainfield Special Situations Master Fund Limited, as Administrative
Agent (together with any successor administrative agent, the “Administrative
Agent”),
for
the benefit of the Secured Creditors (as defined below). Except as otherwise
defined herein, all capitalized terms used herein and defined in the Loan
Agreement (as defined below) shall be used herein as therein defined.
WITNESSETH
WHEREAS,
Pure Biofuels Corp. (“Holdings”), Pure Biofuels Del Peru S.A.C. (“Pure
Biofuels”),
Palma
Industrial S.A.C. (“Palma”
and,
together with Pure Biofuels, collectively, the “Borrowers”),
the
lenders from time to time party thereto (the “Lenders”),
Plainfield Special Situations Master Fund Limited, as Lead Arranger, and the
Administrative Agent, have entered into a Loan Agreement, dated as of September
12, 2007 (as amended, modified, restated and/or supplemented from time to time,
the “Loan
Agreement”),
providing for the making of Loans to the Borrower, all as contemplated therein
(the Lenders, the Administrative Agent and the Pledgee are herein called the
“Secured Creditors”);
WHEREAS,
each Guarantor is a direct or indirect Subsidiary of one of the
Borrowers;
WHEREAS,
it is a condition precedent to the making of Loans to the Borrowers under the
Loan Agreement that each Guarantor shall have executed and delivered to the
Administrative Agent this Guaranty; and
WHEREAS,
each Guarantor will obtain benefits from the incurrence of Loans by the
Borrowers under the Loan Agreement and, accordingly, desires to execute this
Guaranty in order to satisfy the condition described in the preceding paragraph
and to induce the Lenders to make Loans to the Borrowers;
NOW,
THEREFORE, in consideration of the foregoing and other benefits accruing to
each
Guarantor, the receipt and sufficiency of which are hereby acknowledged, each
Guarantor hereby makes the following representations and warranties to the
Administrative Agent for the benefit of the Secured Creditors and hereby
covenants and agrees with each other Guarantor and the Administrative Agent
for
the benefit of the Secured Creditors as follows:
1.
GUARANTY. (a)
Each
Guarantor, jointly and severally, irrevocably, absolutely and un-conditionally
guarantees as a primary obligor and not merely as surety to the Secured
Creditors the full and prompt payment when due (whether at the stated maturity,
by required prepayment, declaration, acceleration, demand or otherwise) of
(x)
the principal of, premium, if any, and interest on the Notes issued by, and
the
Loans made to, each of the Borrowers under the Loan Agreement, and (y) all
other
obligations (including, without limitation, obligations which, but for the
automatic stay under Section 362(a) of the Bankruptcy Code, would become due),
liabilities and indebtedness owing by each of the Borrowers to the Secured
Creditors under each Loan Document to which the Borrower is a party (including,
without limitation, indemnities, fees and interest thereon (including, without
limitation, any interest accruing after the commencement of any bankruptcy,
insolvency, receivership or similar proceeding at the rate provided for in
the
Loan Agreement, whether or not such interest is an allowed claim in any such
proceeding)), whether now existing or hereafter incurred under, arising out
of
or in connection with each such Loan Document and the due performance and
compliance by each of the Borrowers with all of the terms, conditions, covenants
and agreements contained in all such Loan Documents (all such principal,
premium, interest, liabilities, indebtedness and obligations under this clause
(a), being herein collectively called the “Guaranteed Obligations”).
Each
Guarantor understands, agrees and confirms that the Secured Creditors may
enforce this Guaranty up to the full amount of the Guaranteed Obligations
against such Guarantor without proceeding against any other Guarantor, either
Borrower, or against any security for the Guaranteed Obligations, or under
any
other guaranty covering all or a portion of the Guaranteed Obligations. This
Guaranty is a guaranty of prompt payment and performance and not of
collection.
(b)
Additionally, each Guarantor, jointly and severally, unconditionally, absolutely
and irrevocably, guarantees the payment of any and all Guaranteed Obligations
whether or not due or payable by the Borrowers upon the occurrence in respect
of
either Borrower of any of the events specified in Section 11.05 of the Loan
Agreement, and unconditionally, absolutely and irrevocably, jointly and
severally, promises to pay such Guaranteed Obligations to the Secured Creditors,
or order, on demand.
2.
LIABILITY
OF GUARANTORS ABSOLUTE.
The
liability of each Guarantor hereunder is primary, absolute, joint and several,
and unconditional and is exclusive and independent of any security for or other
guaranty of the indebtedness of the Borrowers whether executed by such
Guarantor, any other Guarantor or by any other party, and the liability of
each
Guarantor hereunder shall not be affected or impaired by any circumstance or
occurrence whatsoever, including, without limitation: (a) any direction as
to
application of payment by the Borrowers, or any other party, (b) any other
continuing or other guaranty, undertaking or maximum liability of a Guarantor
or
of any other party as to the Guaranteed Obligations, (c) any pay-ment on or
in
reduction of any such other guaranty or undertaking, (d) any dissolution,
termination or increase, decrease or change in personnel by either Borrower,
(e)
the failure of the Guarantor to receive any benefit from or as a result of
its
execution, delivery and performance of this Guaranty, (f) any payment made
to
any Secured Creditor on the indebtedness which any Secured Creditor repays
a
Borrower pursuant to court order in any bankruptcy, reorganization, arrangement,
xxxx-torium or other debtor relief proceeding, and each Guarantor waives any
right to the deferral or modification of its obligations hereunder by reason
of
any such proceeding, (g) any action or inaction by the Secured Creditors as
contemplated in Section 5 hereof or (h) any invalidity, rescission, irregularity
or unenforceability of all or any part of the Guaranteed Obligations or of
any
security therefor.
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3.
OBLIGATIONS
OF GUARANTORS INDEPENDENT.
The
obligations of each Guarantor hereunder are independent of the obligations
of
any other Guarantor, any other guarantor, the Borrowers, and a separate action
or actions may be brought and prosecuted against each Guarantor whether or
not
action is brought against any other Guarantor, any other guarantor or either
Borrower and whether or not any other Guarantor, any other guarantor or either
Borrower be joined in any such action or actions. Each Guarantor waives (to
the
fullest extent permitted by applicable law) the benefits of any statute of
limitations affecting its liability hereunder or the enforcement thereof. Any
payment by the Borrowers or other circumstance which operates to toll any
statute of limitations as to the Borrowers shall operate to toll the statute
of
limitations as to each Guarantor.
4.
WAIVERS BY GUARANTORS.
(a) Each
Guarantor hereby waives (to the fullest extent permitted by applicable law)
notice of acceptance of this Guaranty and notice of the existence, creation
or
incurrence of any new or additional liability to which it may apply, and waives
promptness, diligence, presentment, demand of pay-ment, demand for performance,
protest, notice of dishonor or nonpayment of any such liabilities, suit or
taking of other action by the Administrative Agent or any other Secured Creditor
against, and any other notice to, any party liable thereon (including such
Guarantor, any other Guarantor, any other guarantor or the Borrowers) and each
Guarantor further hereby waives any and all notice of the creation, renewal,
extension or accrual of any of the Guaranteed Obligations and notice or proof
of
reliance by any Secured Creditor upon this Guaranty, and the Guaranteed
Obligations shall conclusively be deemed to have been created, contracted or
incurred, or renewed, extended, amended, modified, supplemented or waived,
in
reliance upon this Guaranty.
(b) Each
Guarantor waives any right to require the Secured Creditors to: (i) proceed
against the Borrowers, any other Guarantor, any other guarantor of the
Guaranteed Obligations or any other party; (ii) proceed against or exhaust
any
security held from the Borrowers, any other Guarantor, any other guarantor
of
the Guaranteed Obligations or any other party; or (iii) pursue any other remedy
in the Secured Creditors’ power whatsoever. Each Guarantor waives any defense
based on or arising out of any defense of the Borrowers, any other Guarantor,
any other guarantor of the Guaranteed Obligations or any other party other
than
payment in full in cash of the Guaranteed Obligations, including, without
limitation, any defense based on or arising out of the disability of either
Borrower, any other Guarantor, any other guarantor of the Guaranteed Obligations
or any other party, or the unenforceability of the Guaranteed Obligations or
any
part thereof from any cause, or the cessation from any cause of the liability
of
the Borrowers other than payment in full in cash of the Guaranteed Obligations.
The Secured Creditors may, at their election, foreclose on any collateral
serving as security held by the Administrative Agent or the other Secured
Creditors by one or more judicial or nonjudicial sales, whether or not every
aspect of any such sale is commercially reason-able (to the extent such sale
is
permitted by applicable law), or exercise any other right or remedy the Secured
Creditors may have against the Borrowers or any other party, or any security,
without affecting or impairing in any way the liability of any Guarantor
hereunder except to the extent the Guaranteed Obligations have been paid in
full
in cash. Each Guarantor waives any defense arising out of any such election
by
the Secured Creditors, even though such election operates to impair or
extinguish any right of reimbursement, contribution, indemnification or
subrogation or other right or remedy of such Guarantor against the Borrowers,
any other guarantor of the Guaranteed Obligations or any other party or any
security.
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(c) Each
Guarantor has knowledge and assumes all responsibility for being and keeping
itself informed of the Borrowers’, and each other Guarantor’s financial
condition, affairs and assets, and of all other circumstances bearing upon
the
risk of nonpayment of the Guaranteed Obligations and the nature, scope and
extent of the risks which such Guarantor assumes and incurs hereunder, and
has
adequate means to obtain from the Borrowers, and each other Guarantor on an
ongoing basis information relating thereto and the Borrowers’, and each other
Guarantor’s ability to pay and perform its respective Guaranteed Obligations,
and agrees to assume the responsibility for keeping, and to keep, so informed
for so long as this Guaranty is in effect. Each Guarantor acknowledges and
agrees that (x) the Secured Creditors shall have no obligation to investigate
the financial condition or affairs of either Borrower or any other Guarantor
for
the benefit of such Guarantor nor to advise such Guarantor of any fact
respecting, or any change in, the financial condition, assets or affairs of
either Borrower or any other Guarantor that might become known to any Secured
Creditor at any time, whether or not such Secured Creditor knows or believes
or
has reason to know or believe that any such fact or change is unknown to such
Guarantor, or might (or does) increase the risk of such Guarantor as guarantor
hereunder, or might (or would) affect the willingness of such Guarantor to
continue as a guarantor of the Guaranteed Obligations hereunder and (y) the
Secured Creditors shall have no duty to advise any Guarantor of information
known to them regarding any of the aforementioned circumstances or
risks.
(d) Each
Guarantor hereby acknowledges and agrees that no Secured Creditor nor any other
Person shall be under any obligation (a) to marshal any assets in favor of
such
Guarantor or in payment of any or all of the liabilities of either Borrower
under the Loan Documents or the obligation of such Guarantor hereunder or (b)
to
pursue any other remedy that such Guarantor may or may not be able to pursue
itself any right to which such Guarantor hereby waives.
(e) Each
Guarantor warrants and agrees that each of the waivers set forth in Section
3
and in this Section 4 is made with full knowledge of its significance and
consequences and that if any of such waivers are determined to be contrary
to
any applicable law or public policy, such waivers shall be effective only to
the
maximum extent permitted by applicable law.
5.
RIGHTS
OF SECURED CREDITORS.
Subject
to Section 4, any Secured Creditor may (except as shall be required by
applicable statute and cannot be waived) at any time and from time to time
without the consent of, or notice to, any Guarantor, without incurring
responsibility to such Guarantor, without impairing or releasing the obligations
or liabilities of such Guarantor hereunder, upon or without any terms or
conditions and in whole or in part:
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(a) change
the manner, place or terms of payment of, and/or change, increase or extend
the
time of payment of, renew, increase, accelerate or alter, any of the Guaranteed
Obligations (including, without limitation, any increase or decrease in the
rate
of interest thereon or the principal amount thereof), any security therefor,
or
any liability incurred directly or indirectly in respect thereof, and the
guaranty herein made shall apply to the Guaranteed Obligations as so changed,
extended, increased, accelerated, renewed or altered;
(b) take
and
hold security for the payment of the Guaranteed Obligations and sell, exchange,
release, surrender, impair, realize upon or otherwise deal with in any manner
and in any order any property or other collateral by whomsoever at any time
pledged or mortgaged to secure, or howsoever securing, the Guaranteed
Obligations or any liabilities (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and/or any offset
thereagainst;
(c) exercise
or refrain from exercising any rights against the Borrowers, any other Credit
Party, any Subsidiary thereof, any other guarantor of the Borrowers or others
or
otherwise act or refrain from acting;
(d) release
or substitute any one or more endorsers, Guarantors, other guarantors, the
Borrowers or other obligors;
(e) settle
or
compromise any of the Guaranteed Obligations, any security therefor or any
liability (including any of those hereunder) incurred directly or indirectly
in
respect thereof or hereof, and may subordinate the payment of all or any part
thereof to the payment of any liability (whether due or not) of the Borrowers
to
creditors of either Borrower other than the Secured Creditors;
(f) apply
any
sums by whomsoever paid or howsoever realized to any liability or liabilities
of
the Borrowers to the Secured Creditors regardless of what liabilities of the
Borrowers remain unpaid;
(g) consent
to or waive any breach of, or any act, omission or default under, any of the
Loan Documents or any of the instruments or agreements referred to therein,
or
otherwise amend, modify or supplement any of the Loan Documents or any of such
other instruments or agreements;
(h) act
or
fail to act in any manner which may deprive such Guarantor of its right to
subrogation against the Borrowers to recover full indemnity for any payments
made pursuant to this Guaranty; and/or
(i) take
any
other action or omit to take any other action which would, under otherwise
applicable principles of common law, give rise to a legal or equitable discharge
of such Guarantor from its liabilities under this Guaranty (including, without
limitation, any action or omission whatsoever that might otherwise vary the
risk
of such Guarantor or constitute a legal or equitable defense to or discharge
of
the liabilities of a guarantor or surety or that might otherwise limit recourse
against such Guarantor).
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No
invalidity, illegality, irregularity or unenforceability of all or any part
of
the Guaranteed Obligations, the Loan Documents or any other agreement or
instrument relating to the Guaranteed Obligations or of any security or
guarantee therefor shall affect, impair or be a defense to this Guaranty, and
this Guaranty shall be primary, absolute and unconditional notwithstanding
the
occurrence of any event or the existence of any other circumstances which might
constitute a legal or equitable discharge of a surety or guarantor except
payment in full in cash of the Guaranteed Obligations.
6.
CONTINUING
GUARANTY. This
Guaranty is a continuing one and all liabilities to which it applies or may
apply under the terms hereof shall be conclusively presumed to have been created
in reliance hereon. No failure or delay on the part of any Secured Creditor
in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
expressly specified are cumulative and not exclusive of any rights or remedies
which any Secured Creditor would otherwise have. No notice to or demand on
any
Guarantor in any case shall entitle such Guarantor to any other further notice
or demand in similar or other circumstances or constitute a waiver of the rights
of any Secured Creditor to any other or further action in any circumstances
without notice or demand. It is not necessary for any Secured Creditor to
inquire into the capacity or powers of the Borrowers or the officers, directors,
partners or agents acting or purporting to act on its or their be-half, and
any
indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
7.
SUBORDINATION
OF INDEBTEDNESS HELD BY GUARANTORS.
Any
indebtedness of each of the Borrowers now or hereafter held by any Guarantor
is
hereby subordinated to the indebtedness of such Borrowers to the Secured
Creditors; and such indebtedness of such Borrower to any Guarantor, if the
Administrative Agent, after an Event of Default has occurred and is continuing,
so requests, shall be collected, enforced and received by such Guarantor as
trustee for the Secured Creditors and be paid over to the Secured Creditors
on
account of the indebtedness of such Borrower to the Secured Creditors, but
without affecting or impairing in any manner the liability of such Guarantor
under the other provisions of this Guaranty. Prior to the transfer by any
Guarantor of any note or negotiable instrument evidencing any indebtedness
of
such Borrower to such Guarantor, such Guarantor shall xxxx such note or
negotiable instrument with a legend that the same is subject to this
subordination. Without limiting the generality of the foregoing, each Guarantor
hereby agrees with the Secured Creditors that it will not exercise any right
of
subrogation which it may at any time otherwise have as a result of this Guaranty
(whether contractual, under Section 509 of the Bankruptcy Code or otherwise)
until all Guaranteed Obligations have been irrevocably paid in full in cash;
provided,
that if
any amount shall be paid to such Guarantor on account of such subrogation rights
at any time prior to the irrevocable payment in full in cash of all the
Guaranteed Obligations, such amount shall be held in trust for the benefit
of
the Secured Creditors and shall forthwith be paid to the Secured Creditors
to be
credited and applied upon the Guaranteed Obligations, whether matured or
unmatured, in accordance with the terms of the Loan Documents or, if the Loan
Documents do not provide for the application of such amount, to be held by
the
Secured Creditors as collateral security for any Guaranteed Obligations
thereafter existing.
8.
GUARANTY
ENFORCEABLE BY ADMINISTRATIVE AGENT.
Notwithstanding
anything to the contrary contained elsewhere in this Guaranty, the Secured
Creditors agree (by their acceptance of the benefits of this Guaranty) that
this
Guaranty may be enforced only by the action of the Administrative Agent, in
each
case acting upon the instructions of the Required Lenders and that no other
Secured Creditor shall have any right individually to seek to enforce or to
enforce this Guaranty or to realize upon the security to be granted by the
Security Documents, it being understood and agreed that such rights and remedies
may be exercised by the Administrative Agent for the benefit of the Secured
Creditors upon the terms of this Guaranty and the Security Documents. The
Secured Creditors further agree that this Guaranty may not be enforced against
any director, officer, employee, partner, member or stockholder of any Guarantor
(except to the extent such partner, member or stockholder is also a Guarantor
hereunder). It
is understood and agreed that the agreement in this Section 8 is among and
solely for the benefit of the Secured Creditors and that, if the Required
Lenders so agree (without requiring the consent of any Guarantor), this Guaranty
may be directly enforced by any Secured Creditor.
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9.
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF GUARANTORS.
In
order
to induce the Lenders to make Loans to the Borrowers pursuant to the Loan
Agreement, each Guarantor represents, warrants and covenants
that:
(a) such
Guarantor (i) is a duly organized and validly existing corporation, partnership
or limited liability company, as the case may be, in good standing under the
laws of the jurisdiction of its organization, (ii) has the corporate,
partnership or limited liability company power and authority, as the case may
be, to own its property and assets and to transact the business in which it
is
engaged and presently proposes to engage and (iii) is duly qualified and is
authorized to do business and is in good standing in each jurisdiction where
the
nature of its business requires such qualification, except for failures to
be so
qualified which, either individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect;
(b) such
Guarantor has the corporate, partnership or limited liability company power
and
authority, as the case may be, to execute, deliver and perform the terms and
provisions of this Guaranty and each other Document (such
term, for purposes of this Guaranty, to mean each Loan Document to
which
it is a party and has taken all necessary corporate, partnership or limited
liability company action, as the case may be, to authorize the execution,
delivery and performance by it of this Guaranty and each such other
Document;
(c) such
Guarantor has duly executed and delivered this Guaranty and each other Document
to which it is a party, and this Guaranty and each such other Loan Document
constitutes the legal, valid and binding obligation of such Guarantor
enforceable in accordance with its terms, except to the extent that the
enforceability hereof or thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws generally affecting
creditors’ rights and by equitable principles (regardless of whether enforcement
is sought in equity or at law);
(d) neither
the execution, delivery or performance by such Guarantor of this Guaranty or
any
other Loan Document to which it is a party, nor compliance by it with the terms
and provisions hereof and thereof, will (i) contravene any provision of any
applicable law, statute, rule or regulation or any applicable order, writ,
injunction or decree of any court or governmental instrumentality, (ii) conflict
with or result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien (except pursuant
to the Security Documents) upon any of the property or assets of such Guarantor
or any of its Subsidiaries pursuant to the terms of any indenture, mortgage,
deed of trust, loan agreement, credit agreement, or any other material
agreement, contract or instrument to which such Guarantor or any of its
Subsidiaries is a party or by which it or any of its property or assets is
bound
or to which it may be subject or (iii) violate any provision of the certificate
or articles of incorporation, by-laws, partnership agreement or limited
liability company agreement (or equivalent organizational documents), as the
case may be, of such Guarantor or any of its Subsidiaries;
7
(e) no
order,
consent, approval, license, authorization or validation of, or filing, recording
or registration with (except as have been obtained or made prior to the date
when required and which remain in full force and effect), or exemption by,
any
governmental or public body or authority, or any subdivision thereof, is
required to authorize, or is required in connection with, (i) the execution,
delivery and performance of this Guaranty by such Guarantor or any other Loan
Document to which such Guarantor is a party or (ii) the legality, validity,
binding effect or enforceability of this Guaranty or any other Loan Document
to
which such Guarantor is a party;
(f) there
are
no actions, suits or proceedings pending or, to such Guarantor’s knowledge,
threatened (i) with respect to this Guaranty or any other Loan Document to
which
such Guarantor is a party, (ii) with respect to such Guarantor or any of its
Subsidiaries that, either individually or in the aggregate, could reasonably
be
expected to have a Material Adverse Effect or
(iii) that could reasonably be expected to have a material adverse effect on
the
rights or remedies of the Secured Creditors or on the ability of such Guarantor
to perform its obligations to the Secured Creditors hereunder and under the
other Loan Documents to which it is a party;
(g) until
the
termination of the Total Commitment and until such time as no Note remains
outstanding and all Guaranteed Obligations have been paid in full (other than
indemnities described in Section 12.06 of the Loan Agreement and analogous
provisions in the Security Documents which are not then due and payable), such
Guarantor will comply, and will cause each of its Subsidiaries to comply, with
all of the applicable provisions, covenants and agreements contained in Sections
9 and 10 of the Loan Agreement, and will take, or will refrain from taking,
as
the case may be, all actions that are necessary to be taken or not taken so
that
no violation of any provision, covenant or agreement contained in Sections
9 and
10 of
the
Loan Agreement, and so that no Default or Event of Default, is caused by the
actions of such Guarantor or any of its Subsidiaries; and
(h) an
executed (or conformed) copy of each of the Loan Documents, has been made
available to a senior officer of such Guarantor and such officer is familiar
with the contents thereof.
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10.
EXPENSES.
The
Guarantors hereby jointly and severally agree to pay all reasonable
out-of-pocket costs and expenses of the Administrative Agent and each other
Secured Creditor in connection with the enforcement of this Guaranty and the
protection of the Secured Creditors’ rights hereunder and any amendment, waiver
or consent relating hereto (including, in each case, without limitation, the
reasonable fees and disbursements of counsel (including in-house counsel)
employed by the Administrative Agent and each other Secured
Creditor).
11.
BENEFIT
AND BINDING EFFECT.
This
Guaranty shall be binding upon each Guarantor and its successors and assigns
and
shall inure to the benefit of the Secured Creditors and their successors and
assigns.
12.
AMENDMENTS;
WAIVERS.
Neither
this Guaranty nor any provision hereof may be changed, waived, discharged or
terminated except with the written consent of each Guarantor directly affected
thereby (it being understood that the addition or release of any Guarantor
hereunder shall not constitute a change, waiver, discharge or termination
affecting any Guarantor other than the Guarantor so added or released) and
with
the written consent of either the Required Lenders (or, to the extent required
by Section 13.12 of the Loan Agreement, with the written consent of each
Lender).
13.
SET
OFF.
In
addition to any rights now or hereafter granted under applicable law (including,
without limitation, Section 151 of the New York Debtor and Creditor Law) and
not
by way of limitation of any such rights, upon the occurrence and during the
continuance of an Event of Default, each Secured Creditor is hereby authorized,
at any time or from time to time, without notice to any Guarantor or to any
other Person, any such notice being expressly waived, to set off and to
appropriate and apply any and all deposits (general or special) and any other
indebtedness at any time held or owing by such Secured Creditor to or for the
credit or the account of such Guarantor, against and on account of the
obligations and liabilities of such Guarantor to such Secured Creditor under
this Guaranty, irrespective of whether or not such Secured Creditor shall have
made any demand hereunder and although said obligations, liabilities, deposits
or claims, or any of them, shall be contingent or unmatured. Each
Secured Creditor (by its acceptance of the benefits hereof) acknowledges and
agrees that the provisions of this Section 13 are subject to the sharing
provisions set forth in Section 13.06 of the Loan Agreement.
14.
NOTICE.
Except
as
otherwise specified herein, all notices, requests, demands or other
communications to or upon the respective parties hereto shall be sent or
delivered by mail, telegraph, telex, telecopy, cable or courier service and
all
such notices and communications shall, when mailed, telegraphed, telexed,
telecopied, or cabled or sent by courier, be effective when deposited in the
mails, delivered to the telegraph com-pany, cable company or over-night courier,
as the case may be, or sent by telex or telecopier, except that notices and
communications to the Administrative Agent or any Guarantor shall not be
effective until received by the Administrative Agent or such Guarantor, as
the
case may be. All notices and other communications shall be in writing and
addressed to such party at (i) in the case of any Secured Creditor, as provided
in the Loan Agreement, and (ii) in the case of any Guarantor, at its address
set
forth opposite its signature page below; or in any case at such other address
as
any of the Persons listed above may hereafter notify the others in
writing.
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15.
REINSTATEMENT.
If
any
claim is ever made upon any Secured Creditor for repayment or recovery
of any
amount or amounts received in payment or on account of any of the Guaranteed
Obligations and any of the aforesaid payees repays all or part of said
amount by
reason of (i) any judgment, decree or order of any court or administrative
body
having jurisdiction over such payee or any of its property or (ii) any
settlement or compromise of any such claim effected by such payee with
any such
claimant (including, without limitation, the Borrowers), then and in such
event
each Guarantor agrees that any such judgment, decree, order, settlement
or
compromise shall be binding upon such Guarantor, notwithstanding any revocation
hereof or the cancellation of any Note, or any other instrument evidencing
any
liability of the Borrowers, and such Guarantor shall be and remain liable
to the
aforesaid payees hereunder for the amount so repaid or recovered to the
same
extent as if such amount had never originally been received by any such
payee.
16.
CONSENT TO JURISDICTION; SERVICE OF
PROCESS; AND WAIVER OF TRIAL BY JURY. (a) THIS
GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE SECURED CREDITORS AND OF
THE
UNDERSIGNED HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE
LAW OF THE STATE OF NEW YORK. Any legal action or proceeding with respect
to
this Guaranty or any other Loan Document to which any Guarantor is a party
may
be brought in the courts of the State of New York or of the United States
of
America for the Southern District of New York, in each case located within
the
City of New York, and, by execution and delivery of this Guaranty, each
Guarantor hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts.
Each
Guarantor hereby further irrevocably waives any claim that any such courts
lack
jurisdiction over such Guarantor, and agrees not to plead or claim, in
any legal
action or proceeding with respect to this Guaranty or any other Loan Document
to
which such Guarantor is a party brought in any of the aforesaid courts,
that any
such court lacks jurisdiction over such Guarantor. Each Guarantor hereby
irrevocably designates, appoints and empowers Corporation Service Company,
presently located at 1133 Avenue of the Americas, xxxxx 0000, Xxx Xxxx,
Xxx
Xxxx, 00000, as its authorized designee, appointee and agent to receive,
accept
and acknowledge for and on its behalf, and in respect of its property,
service
of any and all legal process, summons, notices and documents which may
be served
in any such action or proceeding. If for any reason such authorized designee,
appointee and agent shall cease to be available to act as such, each Guarantor
agrees to designate a new authorized designee, appointee and agent in New
York
City on the terms and for the purposes of this provision reasonably satisfactory
to the Administrative Agent under this Agreement. Each Guarantor hereby
irrevocably waives any objection to such service of process and further
irrevocably waives and agrees not to plead or claim in any action or proceeding
commenced hereunder or under any other Loan Document to which such Guarantor
is
a party that such service of process was in any way invalid or ineffective.
Nothing herein shall affect the right of any of the Secured Creditors to
serve
process in any other manner permitted by law or to commence legal proceedings
or
otherwise proceed against each Guarantor in any other
jurisdiction.
(b) Each
Guarantor hereby irrevocably waives (to the fullest extent permitted by
applicable law) any objection which it may now or hereafter have to the laying
of venue of any of the aforesaid actions or proceedings arising out of or in
connection with this Guaranty or any other Loan Document to which such Guarantor
is a party brought in the courts referred to in clause (a) above and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that such action or proceeding brought in any such court has been brought in
an
inconvenient forum.
(c) EACH
GUARANTOR AND EACH SECURED CREDITOR (BY ITS ACCEPTANCE OF THE BENEFITS OF THIS
GUARANTY) HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY, THE
OTHER LOAN DOCUMENTS TO WHICH SUCH GUARANTOR IS A PARTY OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
10
17.
RELEASE
OF LIABILITY OF GUARANTOR UPON SALE OR DISSOLUTION.
In
the
event that all of the capital stock or other equity interests of one or more
Guarantors is sold or otherwise disposed of or liquidated in compliance with
the
requirements of Section 10.02 of the Loan Agreement (or such sale, other
disposition or liquidation has been approved in writing by the Required Lenders
(or all the Lenders if required by Section 13.12 of the Loan Agreement)) and
the
proceeds of such sale, disposition or liquidation are applied in accordance
with
the provisions of the Loan Agreement, to the extent applicable, such Guarantor
shall, upon consummation of such sale or other disposition (except to the extent
that such sale or disposition is to Holdings or another Subsidiary thereof),
be
released from this Guaranty automatically and without further action and this
Guaranty shall, as to each such Guarantor or Guarantors, terminate, and have
no
further force or effect (it being understood and agreed that the sale of one
or
more Persons that own, directly or indirectly, all of the capital stock or
other
equity interests of any Guarantor shall be deemed to be a sale of such Guarantor
for the purposes of this Section 17).
18.
CONTRIBUTION.
At
any
time a payment in respect of the Guaranteed Obligations is made under this
Guaranty, the right of contribution of each Guarantor against each other
Guarantor shall be determined as provided in the immediately following sentence,
with the right of contribution of each Guarantor to be revised and restated
as
of each date on which a payment (a “Relevant
Payment”)
is
made on the Guaranteed Obligations under this Guaranty. At any time that a
Relevant Payment is made by a Guarantor that results in the aggregate payments
made by such Guarantor in respect of the Guaranteed Obligations to and including
the date of the Relevant Payment exceeding such Guarantor’s Contribution
Percentage (as defined below) of the aggregate payments made by all Guarantors
in respect of the Guaranteed Obligations to and including the date of the
Relevant Payment (such excess, the “Aggregate
Excess Amount”),
each
such Guarantor shall have a right of contribution against each other Guarantor
who has made payments in respect of the Guaranteed Obligations to and including
the date of the Relevant Payment in an aggregate amount less than such other
Guarantor’s Contribution Percentage of the aggregate payments made to and
including the date of the Relevant Payment by all Guarantors in respect of
the
Guaranteed Obligations (the aggregate amount of such deficit, the “Aggregate
Deficit Amount”)
in an
amount equal to (x) a fraction the numerator of which is the Aggregate Excess
Amount of such Guarantor and the denominator of which is the Aggregate Excess
Amount of all Guarantors multiplied by (y) the Aggregate Deficit Amount of
such
other Guarantor. A Guarantor’s right of contribution pursuant to the preceding
sentences shall arise at the time of each computation, subject to adjustment
to
the time of each computation; provided
that no
Guarantor may take any action to enforce such right until the Guaranteed
Obligations have been irrevocably paid in full in cash and the Total Commitment
and all Letters of Credit have been terminated, it being expressly recognized
and agreed by all parties hereto that any Guarantor’s right of contribution
arising pursuant to this Section 18 against any other Guarantor shall be
expressly junior and subordinate to such other Guarantor’s obligations and
liabilities in respect of the Guaranteed Obligations and any other obligations
owing under this Guaranty. As used in this Section 18: (i) each Guarantor’s
“Contribution
Percentage”
shall
mean the percentage obtained by dividing (x) the Adjusted Net Worth (as defined
below) of such Guarantor by (y) the aggregate Adjusted Net Worth of all
Guarantors; (ii) the “Adjusted
Net Worth”
of
each
Guarantor shall mean the greater of (x) the Net Worth (as defined below) of
such
Guarantor and (y) zero; and (iii) the “Net
Worth”
of
each
Guarantor shall mean the amount by which the fair saleable value of such
Guarantor’s assets on the date of any Relevant Payment exceeds its existing
debts and other liabilities (including contingent liabilities, but without
giving effect to any Guaranteed Obligations arising under this Guaranty) on
such
date. Notwithstanding anything to the contrary contained above, any Guarantor
that is released from this Guaranty pursuant to Section 17 hereof shall
thereafter have no contribution obligations, or rights, pursuant to this Section
18, and at the time of any such release, if the released Guarantor had an
Aggregate Excess Amount or an Aggregate Deficit Amount, same shall be deemed
reduced to $0, and the contribution rights and obligations of the remaining
Guarantors shall be recalculated on the respective date of release (as otherwise
provided above) based on the payments made hereunder by the remaining
Guarantors. All parties hereto recognize and agree that, except for any right
of
contribution arising pursuant to this Section 18, each Guarantor who makes
any
payment in respect of the Guaranteed Obligations shall have no right of
contribution or subrogation against any other Guarantor in respect of such
payment until all of the Guaranteed Obligations have been irrevocably paid
in
full in cash. Each of the Guarantors recognizes and acknowledges that the rights
to contribution arising hereunder shall constitute an asset in favor of the
party entitled to such contribution. In this connection, each Guarantor has
the
right to waive its contribution right against any Guarantor to the extent that
after giving effect to such waiver such Guarantor would remain solvent, in
the
determination of the Required Lenders.
11
19.
LIMITATION
ON GUARANTEED OBLIGATIONS.
Each
Guarantor and each Secured Creditor (by its acceptance of the benefits of this
Guaranty) hereby confirms that it is its intention that this Guaranty not
constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy
Code, the Uniform Fraudulent Conveyance Act of any similar Federal or state
law.
To effectuate the foregoing intention, each Guarantor and each Secured Creditor
(by its acceptance of the benefits of this Guaranty) hereby irrevocably agrees
that the Guaranteed Obligations guaranteed by such Guarantor shall be limited
to
such amount as will, after giving effect to such maximum amount and all other
(contingent or otherwise) liabilities of such Guarantor that are relevant under
such laws and after giving effect to any rights to contribution pursuant to
any
agreement providing for an equitable contribution among such Guarantor and
the
other Guarantors, result in the Guaranteed Obligations of such Guarantor in
respect of such maximum amount not constituting a fraudulent transfer or
conveyance.
12
20.
COUNTERPARTS.
This
Guaranty may be executed in any number of counterparts and by the different
parties hereto on separate counterparts, each of which when so executed and
delivered shall be an original, but all of which shall together constitute
one
and the same instrument. A set of counterparts executed by all the parties
hereto shall be lodged with the Borrowers and the Administrative
Agent.
21.
PAYMENTS.
All
payments made by any Guarantor hereunder will be made without setoff,
counterclaim or other defense and on the same basis as payments are made by
the
Borrowers under Sections 4.03
and
4.04 of the Loan Agreement.
22.
ADDITIONAL
GUARANTORS.
It
is
understood and agreed that any Subsidiary of Holdings that is required to
execute a counterpart of this Guaranty after the date hereof pursuant to the
Loan Agreement shall become a Guarantor hereunder by (x) executing and
delivering a counterpart hereof to the Administrative Agent and delivering
same
to the Administrative Agent, in each case as may be requested by (and in form
and substance satisfactory to) the Administrative Agent and
(y) taking all actions as specified in this Guaranty as would have been taken
by
such Guarantor had it been an original party to this Guaranty, in each case
with
all documents and actions required to be taken above to be taken to the
reasonable satisfaction of the Administrative Agent.
23.
HEADINGS
DESCRIPTIVE.
The
headings of the several Sections of this Guaranty are inserted for convenience
only and shall not in any way affect the meaning or construction of any
provision of this Guaranty.
*
* *
13
IN
WITNESS WHEREOF, each Guarantor has caused this Guaranty to be executed and
delivered as of the date first above written.
|
Address:
|
|
|
Xx.
Xxxxxxx x Xxxxxxx 000 xx 000
|
XXXX
XXXXXXXX XXX XXXX S.A.C.
|
|
San
Xxxxxx, Lima
|
as
a Guarantor
|
|
Peru
|
|
|
Attention:
Xxxx Xxxxxxxx
|
By:
/s/ Xxxx Xxxxxxxx
|
|
Telephone:
x000-000-0000
|
Name:
Xxxx Xxxxxxxx
|
|
Facsimile:
x000-000-0000
|
Title:
Authorized Signatory
|
|
Xx.
Xxxxxxx x Xxxxxxx 000 of 402
|
|
|
San
Xxxxxx, Lima
|
as
a Guarantor
|
|
Peru
|
|
|
Attention:
Xxxx Xxxxxxxx
|
By:
/s/ Xxxx Xxxxxxxx
|
|
Telephone:
x000-000-0000
|
Name:
Xxxx Xxxxxxxx
|
|
Facsimile:
x000-000-0000
|
Title:
Chief Executive Officer
|
Accepted
and Agreed to:
Plainfield
Special Situations Master Fund Limited,\
as
Administrative Agent
|
By:
|
/s/
,
|
| Name: | |
| Title: | |
14
|
1.
|
|
GUARANTY
|
1
|
|
2.
|
|
LIABILITY
OF GUARANTORS ABSOLUTE
|
2
|
|
3.
|
|
OBLIGATIONS
OF GUARANTORS INDEPENDENT
|
3
|
|
4.
|
|
WAIVERS
BY GUARANTORS
|
3
|
|
5.
|
|
RIGHTS
OF SECURED CREDITORS
|
4
|
|
6.
|
|
CONTINUING
GUARANTY
|
6
|
|
7.
|
|
SUBORDINATION
OF INDEBTEDNESS HELD BY GUARANTORS
|
6
|
|
8.
|
|
GUARANTY
ENFORCEABLE BY ADMINISTRATIVE AGENT
|
6
|
|
9.
|
|
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF
|
|
|
|
GUARANTORS
|
7
|
|
|
10.
|
|
EXPENSES
|
9
|
|
11.
|
|
BENEFIT
AND BINDING EFFECT
|
9
|
|
12.
|
|
AMENDMENTS;
WAIVERS
|
9
|
|
13.
|
|
SET
OFF
|
9
|
|
14
|
|
NOTICE
|
9
|
|
15
|
|
REINSTATEMENT
|
10
|
|
16.
|
|
CONSENT
TO JURISDICTION; SERVICE OF PROCESS; AND WAIVER OF
|
|
|
TRIAL
BY JURY
|
10
|
||
|
17
|
|
RELEASE
OF LIABILITY OF GUARANTOR UPON SALE OR
|
|
|
DISSOLUTION
|
11
|
||
|
18
|
|
CONTRIBUTION
|
11
|
|
19
|
|
LIMITATION
ON GUARANTEED OBLIGATIONS
|
12
|
|
20
|
|
COUNTERPARTS
|
13
|
|
21
|
|
PAYMENTS
|
13
|
|
22
|
|
ADDITIONAL
GUARANTORS
|
13
|
|
23
|
|
HEADINGS
DESCRIPTIVE
|
13
|
