MASTER GUARANTY AGREEMENT
Guaranty
Agreement dated as of September 1, 1997 issued by RAIFFEISEN ZENTRALBANK
ÖSTERREICH AKTIENGESELLSCHAFT, a banking institution organized and existing
under the laws of the Republic of Austria (the “Guarantor”)
for
the benefit of the Beneficiaries (as hereinafter defined);
PRELIMINARY
STATEMENT
This
Agreement is issued for the benefit of certain persons who extend credit
to RZB
FINANCE LLC, a Delaware limited liability company and a wholly-owned subsidiary
of the Guarantor (“RZB
Finance”),
or to
whom RZB Finance has extended credit.
NOW,
THEREFORE, IT IS AGREED:
SECTION
1. Definitions.
Unless
otherwise defined in this Agreement, capitalized terms shall have the meaning
specified below; definitions expressed in the singular shall import the plural
and vice
versa:
“Beneficiary”
means
any person which holds Certified Guaranteed Obligations and their respective
successors and assigns.
“Certified
Guaranteed Obligations”
means
any RZB Finance Obligation (i) for which Guarantor has executed a Certificate
in
the form of Exhibit A to this Agreement or (ii) which contains a statement
to
the effect that the obligations of RZB Finance under or in connection with
such
agreement or instrument shall constitute “Certified Guaranteed Obligations”
under this Agreement. No particular words shall be required in any such
statement; any words to such effect shall be sufficient including, without
limitation, the following:
“The
obligations of RZB FINANCE LLC, a Delaware limited liability company
(“RZB
Finance”)
under
or in connection with this document and the documents executed and delivered
or
issued by RZB Finance in connection with this document constitute Certified
Guaranteed Obligations for purposes of the Master Guaranty Agreement dated
as of
September 1, 1997 issued by Raiffeisen Zentralbank Osterreich
Aktiengesellschaft.”
“Credit
Document”
means
any document or instrument evidencing a RZB Finance Obligation.
“Final
Payment Date”
means
the earliest of (x) the date on which the maturities of any Certified Guaranteed
Obligations are accelerated pursuant to the relevant Credit Documents or
applicable law, or the date on which any bankruptcy, insolvency or similar
proceeding
is commenced by or against RZB Finance or (y) the date on which any Guarantor
Default occurs.
“Guarantor
Default”
means
(A) (i)any default by the Guarantor of any of its obligations under this
Agreement or (ii) any representation by the Guarantor in this Agreement shall
prove to be untrue in any material respect as of the date when made and,
in each
case, such default or misrepresentation shall not be cured within 30 days
after
the receipt by the Guarantor from the relevant Beneficiary of a written notice
describing the Guarantor Default and (B) any receivership proceedings by
the
banking authorities in the Republic of Austria or any bankruptcy, insolvency
or
similar proceeding for the relief of financially distressed debtors shall
be
commenced by or against the Guarantor and, as to any involuntary such
proceeding, the same shall not be discharged within the time provided by
applicable law for the dispute of such involuntary proceedings.
“Payment
Date”
shall
mean, with respect to any Certified Guaranteed Obligation, (i) the date for
the
payment thereof (after giving effect to any applicable grace period) specified
in the relevant Credit Document or if such Certified Guaranteed Obligation
is
payable on demand or if no time for payment therefor is specified, the date
on
which the Beneficiary demands, in writing, payment thereof from RZB Finance
and
(ii) the Final Payment Date for such obligations.
“RZB
Finance Obligation”
means
any obligation (whether for principal, interest or otherwise), now existing
or
hereafter arising (including future advances) prior to the Termination Date,
and
whether direct, contingent or otherwise, of RZB Finance to any Person,
provided
however,
in no
event shall the term “RZB Finance Obligation” include consequential, incidental,
punitive or similar damages or interest accrued at default rates.
“Termination
Date”
means
the date on which the holder of a Certified Guaranteed Obligation receives
notice in writing that the Guarantor has terminated this Agreement.
SECTION
2. Guaranty
Agreement.
2.1 Continuing
Guaranty of Payment.
(a) The
Guarantor irrevocably, absolutely and unconditionally guarantees to each
Beneficiary the payment all Certified Guaranteed Obligations owed to such
Beneficiary on the Payment Date for such obligations. If any Certified
Guaranteed Obligation shall not be paid on the Payment Date for such Certified
Guaranteed Obligation, the Guarantor shall pay the amount thereof to the
relevant Beneficiary no later than 30 days after such Beneficiary has given
the
Guarantor written notice(a “Default
Notice”)
that
such Final
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Payment
Date has occurred and that such obligations have not been paid, provided
that,
no
Default Notice shall be required in connection with a Guarantor
Default.
(b) This
is a
guaranty of payment rather than of collection. This is also a continuing
guaranty and all liabilities to which this Agreement applies, or may apply,
under the terms hereof shall be conclusively presumed to have been created
in
reliance hereon, without further notice to, or from, the Guarantor.
(c) This
Agreement may be terminated or modified, as to any Beneficiary, by the Guarantor
at any time and such termination or modification, as the case may be, shall
be
effective, as to any Beneficiary, as at the Termination Date, provided
that,
no such
termination or modification shall affect (i) the obligations of the Guarantor
under this Agreement with respect to Certified Guaranteed Obligations which
arose prior to such Termination Date or which arose after such Termination
Date
pursuant to a commitment, letter of credit, acceptance, certification or
similar
undertaking by RZB Finance prior to such Termination Date or (ii) the obligation
of the Guarantor to pay interest on the Certified Guaranteed Obligations,
to the
extent provided in the relevant Credit Document and this Agreement or to
pay the
amounts otherwise provided in this Agreement with respect to the Certified
Guaranteed Obligations described in clause (i) above.
2.2 Nature
of Obligations.
The
Certified Guaranteed Obligations shall be deemed to be the direct and primary
obligations of the Guarantor to the same extent and with the same effect
as if
the Certified Guaranteed Obligation had been incurred by the Guarantor. Without
limiting the generality of the foregoing, the obligations of the Guarantor
shall
remain in force irrespective of:
(i) the
existence or absence of any legal action (including, without limitation,
the
filing of proofs of claim in bankruptcy) to enforce, collect or realize upon,
the Certified Guaranteed Obligations or the Credit Documents or any security
or
other guaranty therefor, the issuance of any judgment therefor or the execution
of any such judgment, or
(ii) any
other
agreement or circumstance which might otherwise constitute a defense available
to, or discharge of, a guarantor or surety of any type (including, without
limitation, any defense based upon an election of remedies or the taking
of any
action which may destroy or impair the Guarantor’s rights of subrogation,
indemnity and/or contribution or upon any statute of limitations or
anti-deficiency statute).
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NOTWITHSTANDING
THE FOREGOING OR ANYTHING ELSE IN THIS AGREEMENT, the Guarantor shall be
entitled to assert any defense of RZB Finance or any right of setoff of RZB
Finance arising out of the transactions which gave rise to the RZB Finance
Obligations, except
that,
any
defense based upon the statute of limitations shall be based solely on the
obligations of the Guarantor under this Agreement, irrespective of whether
the
statute of limitations has run with respect to the underlying RZB Finance
Obligations.
The
obligations of the Guarantor under this Agreement are several and independent
of, and may be enforced regardless of the existence of, any other agreement
or
obligation (direct or contingent) of the Guarantor or any other guarantor
or
person obligated with respect to the Certified Guaranteed
Obligations.
2.3 Evidence.
Any
Beneficiary may use a photocopy of this Agreement as evidence of the obligations
of the Guarantor under this Agreement, and any such photocopy shall be deemed
to
be an original and the “best evidence” of such obligations.
SECTION
3. Special
Agreements.
3.1 Payments.
All
payments to each Beneficiary provided for hereunder shall be made in the
currency in which the relevant Certified Guaranteed Obligation is denominated
or
required to be paid in the related Credit Documents, in freely transferable
and
immediately available funds, at the office specified for payments to the
Beneficiary in the Credit Documents or, if not so specified, at such place
as
the Beneficiary may specify in New York City or Vienna, Austria and for the
account of such office of each Beneficiary as each Beneficiary may designate.
Each such payment shall:
(i) be
exempt
from, and without reduction by reason of, any Tax, or
(ii) to
the
extent that any such payment shall be subject to any Tax, be accompanied
by an
additional payment by the Guarantor of such amount as may be necessary so
that
the net amount realized by each Beneficiary (after taking into account all
applicable Taxes) is the same as each Beneficiary would have realized had
such
payment not been subject to such Tax.
“Tax”
means and includes any present or future tax, levy, cost or charge of any
nature
imposed by any government or any authority or political subdivision of the
Republic of Austria or any other jurisdiction from which any payment under
this
Agreement is made by the Guarantor, excluding taxes on or measured by the
net
income or gain of any Beneficiary imposed by any jurisdiction in which the
principal or relevant office of such Beneficiary is located.
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3.2 Waivers.
Except
to the extent required by law which cannot be waived and except as expressly
provided herein, the Guarantor (a) waives notice of acceptance of this Agreement
and notice of any liability to which it may apply, (b) waives diligence,
presentment or acceleration of maturities, demand of payment, protest, notice
of
dishonor, nonpayment of any such liabilities, (c) waives suit, filing of
proofs
of claim in bankruptcy or, except to the extent specifically provided in
this
Agreement, the taking of other action or the making of any demand by any
Beneficiary against, and the giving of any other notice to, any person liable
thereon (including RZB Finance, the Guarantor or any other guarantor or Person)
or any property providing security therefor, and waives any right to compel
any
Beneficiary to commence any such suit, to take any such action or to make
any
such demand, and (d) agrees that each Beneficiary may deal with the RZB Finance
Obligations without any notice to, or consent by, the Guarantor, without
incurring responsibility to the Guarantor, and without impairing or releasing
the obligations of the Guarantor hereunder.
3.3 Amounts
Reclaimed.
If at
any time any payment or other amount received or realized by any Beneficiary
and
applied to any Certified Guaranteed Obligation is repaid by or recovered
from
such Beneficiary in any bankruptcy or similar proceeding, the obligations
of the
Guarantor under this Agreement shall be applicable to such amounts to the
same
extent as if such amounts had never been paid.
SECTION
4. Representations,
Warranties and Agreements.
4.1 Power
and Authority; No Conflicts.
The
Guarantor represents and warrants that: (a) it has the power to enter into
and
perform its obligations under this Agreement and the obligations of the
Guarantor under this Agreement are duly authorized, legal, valid and binding
obligations, enforceable in accordance with their respective terms; (b) all
action required as a condition thereto (including, without limitation, the
obtaining of all corporate, governmental or other approvals or the making
of any
governmental registrations or filings) has been taken, and (c) the issuance
and
performance of this Agreement does not and will not violate any law, permit,
agreement or instrument (including, without limitation, the Guarantor’s
organizational papers and any director or shareholder resolutions or consent)
to
which the Guarantor is a party or is subject, or result in the imposition
of any
lien or security interest upon any of the Guarantor’s assets.
4.2 Taxes.
Under
applicable law presently in effect in the Guarantor’s jurisdiction of
organization, no stamp, registration, transfer or other taxes or charges
are or
will be payable in
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respect
of the entering into, performance or enforcement of this Agreement and no
payments under this Agreement will be subject to any Tax.
SECTION
5. Miscellaneous.
5.1 Payment
of Expenses.
In the
event of a Guarantor Default, the Guarantor agrees to pay and hold each
Beneficiary harmless from and against (i) the reasonable out-of-pocket costs
and
expenses of each Beneficiary arising in connection with the enforcement of
this
Agreement (including, without limitation, the reasonable fees and expenses
of
counsel for such Beneficiary), (ii) any and all stamp, excise, filing and
other
similar taxes and fees payable in connection with the enforcement of this
Agreement and (iii) all liabilities (including interest and penalties, if
any)
with respect to or resulting from any delay by the Guarantor in paying or
omitting to pay such taxes and fees.
5.2 Modification.
This
Agreement may be modified only by an instrument in writing signed by the
Guarantor, provided
that,
any
modification of any provision of this Agreement by the Guarantor shall be
subject to the provisions of Section 2.1(c) above.
5.3 Governing
Law.
This
Agreement and the rights and obligations of the parties hereunder shall be
governed by, and construed in accordance with, and the law of the State of
New
York, without giving effect to the conflicts of law principles
thereof.
5.4 Notices.
Communications given to the Guarantor in connection with this Agreement shall
be
in English and shall be effective when received. Written notices may be
delivered by mail, courier, by hand, telex or telecopier, to the address
or
telex or telecopier number set forth opposite the Guarantor’s signature
below.
5.5 Descriptive
Headings.
The
descriptive headings used in this Agreement are for convenience only and
shall
not be deemed to affect the meaning or construction of any provision
hereof.
5.6 Benefit
of Agreement.
This
Agreement shall be binding upon the Guarantor and its successors and assigns
and
shall inure to the benefit of, and be enforceable by, each
Beneficiary.
5.7 Consent
to Jurisdiction, etc.
Any
legal action or proceeding against the Guarantor with respect to this Agreement
shall 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, as each Beneficiary may
elect,
and, by execution and delivery of this Agreement, the Guarantor accepts,
for
itself and in respect of its property, generally and unconditionally, the
jurisdiction of the
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aforesaid
courts. The Guarantor irrevocably consents to the service of process out
of any
of the aforementioned courts in any such action or proceeding by (i) the
mailing
of copies thereof by registered or certified airmail, postage prepaid, to
the
Guarantor at its address for notices as specified herein, such service to
become
effective 30 days after such mailing and (ii) the service of said process
upon
RZB Finance at its principal office in the City of New York.
5.8 Judgment
Currency.
If, for
purposes of obtaining a judgment for amounts due hereunder, any Certified
Guaranteed Obligation must be converted from the currency (the “debt
currency”)
in
which it is denominated under the Credit Documents or this Agreement into
another currency (the “judgment
currency”),
the
Guarantor agrees:
(i) that
such
conversion shall be made on the basis of the prevailing applicable buying
spot
rate of exchange on the date before, and in the location at which, such judgment
is to be rendered, and
(ii) to
pay to
the relevant Beneficiary the difference, if any, between (x) the amount due
under the terms of this Agreement in the debt currency and (y) the amount
in the
debt currency which each Beneficiary is able to obtain with any payment by
the
Guarantor in the judgment currency on the date of such payment, or as soon
thereafter as is practicable.
The
provisions of this Section 5.8 shall constitute a separate obligation of
the
Guarantor, independent from its other obligations hereunder, and shall not
be
affected by or merged into any judgment obtained for other sums due hereunder,
all with the same effect as if such provisions were set forth in a separate
agreement. In further consideration for such obligation, each Beneficiary
agrees
that, notwithstanding any judgment for amounts due hereunder which is rendered
in other than the debt currency, the Guarantor shall not be required to pay
to
each Beneficiary in the debt currency more than the amount due to each
Beneficiary in accordance with the terms hereof.
5.9 Survival.
The
provisions of Sections 3.1, 3.3, 5.1, 5.7, 5.8, 5.11, 5.12, and this Section
5.9
shall survive the termination and cancellation of this Agreement.
5.10 Credit
Documents.
Without
limiting the provisions of Section 3.2, the Guarantor acknowledges and agrees
that no Beneficiary shall have any duty or responsibility, either initially
or
on a continuing basis, to provide to the Guarantor (a) any credit or other
information relating to RZB Finance or any other person, the RZB Finance
Obligations or the Credit Documents or any
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person
obligated thereunder or the performance by any such person of its obligations
thereunder or (b) any amendment or alteration of, or consent with respect
to,
any Credit Document or the RZB Finance Obligations.
5.11 Immunity.
The
Guarantor represents, warrants and agrees that (i) the entering into of this
Agreement and the performance of the transactions contemplated hereby constitute
commercial activities carried on, and with direct effects, within the United
States of America, (ii) the Guarantor is not entitled to, and hereby expressly
and irrevocably waives (to the full extent permitted by applicable law),
any
present or future claim to any immunity (whether characterized as sovereign
immunity or otherwise) from any legal proceedings (whether in the United
States
of America or elsewhere) to enforce or collect upon this Agreement (including,
without limitation, immunity from service of process and from jurisdiction
of
any court or tribunal, immunity of any of its property from attachment upon
or
prior to judgment or in aid of execution, and from execution, upon a judgment)
with respect to itself or its property in any action or proceeding in connection
with, or relating to, this Agreement or its obligations under or in connection
with this Agreement and (iii) the provisions for service of process set forth
in
this Agreement constitute, among other things, a special arrangement for
service
of process between each Beneficiary and the Guarantor for purposes of the
Foreign Sovereign Immunities Act of 1976, as amended.
5.12 WAIVER
OF JURY TRIAL.
THE
GUARANTOR AND, BY ACCEPTING THE BENEFITS HEREOF, EACH BENEFICIARY HEREBY
WAIVE
TRIAL BY JURY IN CONNECTION WITH ANY ACTION OR PROCEEDING OF ANY NATURE
WHATSOEVER ARISING UNDER, OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND
THE
TRANSACTIONS CONTEMPLATED HEREBY AND ANY COURSE OF DEALING OR REPRESENTATIONS,
WARRANTIES, STATEMENTS OR AGREEMENTS MADE OR ALLEGEDLY MADE IN CONNECTION
HEREWITH AND IN CONNECTION WITH ANY CLAIM, COUNTERCLAIM, OFFSET OR DEFENSE
ARISING IN CONNECTION WITH SUCH ACTION OR PROCEEDING, WHETHER ARISING UNDER
STATUTE (INCLUDING ANY FEDERAL OR STATE CONSTITUTION) OR UNDER THE LAW OF
CONTRACT, TORT OR OTHERWISE AND INCLUDING, WITHOUT LIMITATION, ANY CHALLENGE
TO
THE LEGALITY, VALIDITY, BINDING EFFECT OR ENFORCEABILITY OF THIS SECTION
5.12 OR
THIS AGREEMENT.
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IN
WITNESS WHEREOF, the Guarantor has caused this Agreement to be executed and
delivered by its duly authorized officer(s) as of the date first above
written.
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Addresses
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RAIFFEISEN
ZENTRALBANK
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Xx
Xxxxxxxxx 0
0000
Xxxxxx
Xxxxxxx
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ÖSTERREICH
AKTIENGESELLSCHAFT
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Telefax:
01143-1-71707-1715
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By
________________________________________________
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Title:
______________________________________________
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1133
Avenue of the Americas
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Telefax
#: ___________________________________________
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Xxx
Xxxx, Xxx Xxxx 00000
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