SECOND OMNIBUS AMENDMENT
This SECOND OMNIBUS AMENDMENT (this "Amendment") dated as of
November 22, 2004 by and among Geosor Corporation (the "Investor"), Premium
Quality Fund, a Cayman Islands corporation ("Premium"), and GNB Sudameris
Bank S.A. (formerly known as GNB Bank (Panama) S.A.), a Panamanian bank (the
"Bank").
RECITALS
A. On November 27, 2002 (the "Closing Date"), the Investor and
Premium entered into a Letter Agreement (as amended from time to time, the
"Premium/Geosor Letter Agreement"), pursuant to which the Investor delivered
to Premium U.S.$5,000,000.00 (the "Deposit Amount") and, concurrently,
Premium delivered the Deposit Amount on behalf of the Investor to the Bank
and delivered to the Investor a Certificate of Deposit (Contrato de Deposito
a Termino) (as amended from time to time, the "CD") registered in the name of
the Investor and issued by the Bank to the Investor, with a maturity date of
November 27, 2003.
B. On the Closing Date and concurrently with the execution and
delivery of the Premium/Geosor Letter Agreement and the CD, (i) the Bank, the
Investor and Premium entered into a letter agreement (as amended from time to
time, the "Bank Letter Agreement"), (ii) Premium entered into a Guaranty (as
amended from time to time, the "Premium Guaranty") in favor of the Investor
and (iii) Premium, as pledgor, and the Investor, as pledgee, entered into a
Pledge Agreement (as amended from time to time, the "Pledge Agreement").
C. On November 27, 2003, the parties entered into an Omnibus
Amendment and CD amendment (such documents, together with their exhibits and
appendices, the "Amendment Documents"; the Amendment Documents, together with
the Pledge Agreement, the Premium/Geosor Letter Agreement, the original CD,
the Bank Letter Agreement, and the Premium Guaranty, as amended, restated,
supplemented or otherwise modified from time to time are sometimes referred
to herein collectively as the "Transaction Documents") that, among other
things, extended the maturity date of the CD from November 27, 2003 to
November 22, 2004.
D. The parties have agreed, subject to the terms and conditions
contained herein, (i) to extend the maturity date of the CD from November 22,
2004 to November 22, 2005 and (ii) that Premium or the Bank shall, on or
prior to November 22, 2004, pay or cause to be paid to the Investor the
Interest and Fee Payment (as defined below).
E. Capitalized terms used herein but not otherwise defined herein
shall have the meanings ascribed to such terms in the Premium/Geosor Letter
Agreement.
NOW, THEREFORE, in consideration of the promises and agreements set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the parties hereto acknowledge
and agree as follows:
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Section 1. AMENDMENTS TO THE TRANSACTION DOCUMENTS
1.1 Amendments. The parties hereto agree that:
A. The maturity date of the CD shall be November 22, 2005, and any and
all references in the CD and in any of the other Transaction Documents to
the "maturity date of the CD", the "date of maturity of the CD" or words of
like import, shall mean November 22, 2005.
B. The issue date of the CD shall be deemed to be the date that is the
Amendment Effective Date (as defined below), and any and all references in
the CD and in any of the other Transaction Documents to the "issue date of
the CD", the "date of issue of the CD" or words of like import shall mean
the date that is the Amendment Effective Date. For the avoidance of doubt,
on and after the Amendment Effective Date, interest and fees due in respect
of the CD shall begin to accrue as of the Amendment Effective Date.
C. All references in each of the Transaction Documents to any or all
of the Transaction Documents shall mean such Transaction Document or
Transaction Documents, as the case may be, as amended by this Amendment.
D. Premium hereby reaffirms its obligations under the Premium Guaranty
and the Pledge Agreement, as amended by this Amendment, and the Premium
Guaranty and the Pledge Agreement shall remain in full force and effect and
shall secure the Obligations (as defined in such agreements), as amended by
this Amendment.
1.2 Certain Agreements and Acknowledgments. The parties hereto agree
and acknowledge that:
A. Premium or the Bank shall, on or prior to November 22, 2004, pay or
cause to be paid to the Investor, in cash by wire transfer of immediately
available funds, an aggregate amount equal to U.S.$750,000.00 (the
"Interest and Fee Payment"), which amount shall constitute the accrued and
unpaid interest and fees due in respect of the CD as of such date. Except
as provided in Section 4.5 of this Amendment in respect of taxes, if any,
upon the Amendment Effective Date, no other payments of interest and fees
shall be due to the Investor in respect of the CD as of such date
(provided, that, for the avoidance of doubt, interest and fees due in
respect of the CD shall again begin to accrue as of such date).
B. Interest, fees and other amounts due under or in respect of the CD
and the other Transaction Documents shall begin to accrue from the
Amendment Effective Date and shall be due and payable on November 22, 2005
(unless such interest, fees and other amounts shall be due and payable
earlier in accordance with the terms of the Transaction Documents).
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Section 2. REPRESENTATIONS AND WARRANTIES
2.1 In order to induce the Investor to enter into this Amendment and to
amend the Transaction Documents in the manner provided herein, each of Premium
and the Bank represents and warrants to the Investor that the following
statements are true, correct and complete on the date hereof and on and as of
the Amendment Effective Date:
A. Power and Authority. Such person has all requisite power and
authority to (i) enter into this Amendment and all other agreements
required by this Amendment to be entered into by such person and (ii) carry
out the transactions contemplated by, and perform its obligations under,
the Transaction Documents, as amended hereby.
B. Authorization of Agreements. The execution and delivery of this
Amendment and the performance of the Transaction Documents, as amended
hereby, have been authorized by all necessary action on the part of such
person.
C. No Conflict. The execution and delivery by such person of this
Amendment and the performance by such person of the Transaction Documents,
as amended hereby, do not and will not (i) violate any provision of any law
or any governmental rule or regulation applicable to such person, its
organizational documents, or any order, judgment or decree of any court or
other governmental authority binding on such person, (ii) conflict with,
result in a breach of or constitute (with due notice or lapse of time or
both) a default under any contractual obligation of such person, (iii)
result in or require the creation or imposition of any lien, security
interest, claim or other encumbrance upon any of the properties or assets
of such person (other than any such lien, security interest, claim or other
encumbrance created under any of the Transaction Documents in favor of the
Investor) or (iv) require any approval of stockholders or any approval or
consent of any person or entity under any contractual obligation of such
person.
D. Binding Obligation. This Amendment has been duly executed and
delivered by such person. This Amendment and each of the Transaction
Documents (including any amendments thereto) to which such person is a
party are the legal, valid and binding obligations of such person,
enforceable against such person in accordance with their respective terms,
except as such enforceability may be limited by applicable bankruptcy,
liquidation, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights or general equity principles.
E. Incorporation of Representations and Warranties. The
representations and warranties contained in Paragraph C of the
Premium/Geosor Letter Agreement are and will be true, correct and complete
on and as of the Amendment Effective Date to the same extent as though made
on and as of that date.
F. Absence of Default. After giving effect to the amendments set forth
in this Amendment, no event has occurred and is continuing or will result
from the consummation of the transactions contemplated by this Amendment
that would constitute
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a default or an Event of Default under Paragraph E of the Premium/Geosor
Letter Agreement.
2.2 In order to induce Premium and the Bank to enter into this
Amendment and to amend the Transaction Documents in the manner provided
herein, the Investor represents and warrants to Premium and the Bank that
the following statements are true, correct and complete on the date hereof
and on and as of the Amendment Effective Date:
A. Power and Authority. The Investor has all requisite power and
authority to (i) enter into this Amendment and all other agreements
required by this Amendment to be entered into by the Investor and (ii)
carry out the transactions contemplated by, and perform its obligations
under, the Transaction Documents, as amended hereby.
B. Authorization of Agreements. The execution and delivery of this
Amendment and the performance of the Transaction Documents, as amended
hereby, have been authorized by all necessary action on the part of the
Investor.
C. No Conflict. The execution and delivery by the Investor of this
Amendment and the performance by such person of the Transaction Documents,
as amended hereby, do not and will not (i) violate any provision of any law
or any governmental rule or regulation applicable to the Investor, its
organizational documents, or any order, judgment or decree of any court or
other governmental authority binding on the Investor, (ii) conflict with,
result in a breach of or constitute (with due notice or lapse of time or
both) a default under any contractual obligation of the Investor, (iii)
result in or require the creation or imposition of any lien, security
interest, claim or other encumbrance upon any of the properties or assets
of the Investor or (iv) require any approval of stockholders or any
approval or consent of any person or entity under any contractual
obligation of such person, except for such approvals or consents which have
been obtained on or before the Amendment Effective Date.
D. Binding Obligation. This Amendment has been duly executed and
delivered by the Investor. This Amendment and each of the Transaction
Documents (including any amendments thereto) to which the Investor is a
party are the legal, valid and binding obligations of the Investor,
enforceable against the Investor in accordance with their respective terms,
except as such enforceability may be limited by applicable bankruptcy,
liquidation, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights or general equity principles.
Section 3. CONDITIONS TO EFFECTIVENESS
3.1 This Amendment shall become effective only upon the satisfaction of all
of the following conditions precedent (the date of satisfaction of such
conditions being referred to herein as the "Amendment Effective Date"):
A. Execution of Amendment. The Investor, Premium and the Bank shall
have executed and delivered to each of the other parties hereto a
counterpart of this Amendment.
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B. Interest and Fee Payment. Premium or the Bank shall have paid or
caused to be paid to the Investor, in cash by wire transfer of immediately
available funds to the account of the Investor set forth in Exhibit A
hereto, the Interest and Fee Payment.
C. Certificate of Deposit. An amended CD, in the form attached hereto
as Exhibit B, registered in the name of the Investor and issued by the
Bank, shall be delivered to the Investor, which CD shall have a maturity
date of November 22, 2005.
D. Representations and Warranties. All representations and warranties
of Premium and the Bank contained herein shall be true, correct and
complete with the same effect as though such representations and warranties
had been made on the Amendment Effective Date.
E. Governmental and Third Party Authorizations. Premium and the Bank
shall have obtained all licenses, authorizations, consents and approvals
from governmental authorities and all consents of other persons and
entities, in each case that are necessary or advisable for Premium and the
Bank to amend the Transaction Documents pursuant to this Amendment and for
each of Premium and the Bank to perform its respective obligations pursuant
to the Transaction Documents, as amended by this Amendment. Each such
license, authorization, consent and approval shall be in full force and
effect.
F. Other Documents. On or before the Amendment Effective Date, Premium
and the Bank shall execute and deliver to the Investor such other documents
as the Investor may reasonably request to effectuate the purposes of this
Amendment.
Section 4. MISCELLANEOUS
4.1 Transaction Documents in Full Force and Effect.
A. Nothing in this Amendment shall be deemed to prejudice any right or
remedy that the Investor may now have or may have in the future under or in
connection with the Transaction Documents or any other instrument or
agreement referred to therein.
B. Except as expressly set forth herein, the terms, provisions and
conditions of the Transaction Documents shall remain in full force and
effect (including, without limitation, Paragraph B.1 and Paragraph B.2 of
the Premium/Geosor Letter Agreement). This Amendment shall not, except as
expressly provided herein, constitute a waiver, amendment or modification
of, or consent under, any other term or condition in any of the Transaction
Documents, and each of the parties hereto expressly reaffirms all of its
respective obligations under each Transaction Document to which it is a
party, as amended hereby.
4.2 Governing Law; Submission to Jurisdiction; Appointment of Process
Agent.
A. The terms of this Amendment shall be governed by, and shall be
construed and enforced in accordance with, the laws of the State of New
York without regard to
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principles of conflicts of law; provided, however, that the CD and the
Bank Letter Agreement shall be governed by, and shall be construed and
enforced in accordance with, the laws of the Republic of Panama without
regard to principles of conflicts of law.
B. With respect to any suit, action or proceeding relating to this
Amendment or the transactions contemplated hereby, each of Premium and the
Bank irrevocably (i) submits to the exclusive jurisdiction of the United
States District Court for the Southern District of New York, and, if such
Court lacks subject matter jurisdiction, to the Supreme Court of the State
of New York, County of New York, and if such Courts lack subject matter
jurisdiction, to the U.S. District Court for the Southern District of
Florida or if such Court lacks subject matter jurisdiction, in the courts
of general jurisdiction in Dade County, Miami, Florida; and (ii) waives, to
the fullest extent permitted by law, any objection or immunities to
jurisdiction which such person may now or hereafter have at any time
(including sovereign immunity, immunity to pre-judgment attachment,
post-judgment attachment and execution) to the laying of venue of any such
suit, action or proceeding arising out of or relating to this Amendment or
the transactions contemplated hereby, or any judgment entered by any court
in respect hereof brought in any such court, waives any claim that any such
suit, action or proceeding has been brought in an inconvenient forum and
further waives the right to object with respect to any such suit, action or
proceeding that such court does not have any jurisdiction over it. Each of
Premium and the Bank agrees that it will not institute an action in any
court except as contemplated by the foregoing. Notwithstanding the
foregoing, nothing contained herein shall limit or impair the right of the
Investor to institute any suit, action, motion or proceeding in any other
court of competent jurisdiction, nor shall the taking of any suit, action
or proceeding in one or more jurisdictions preclude the taking of
proceedings in any other jurisdiction, whether concurrently or not.
C. Nothing in this Amendment shall be deemed to constitute a general
consent to service of process or the in personam jurisdiction of the United
States District Court for the Southern District of New York, County of New
York, the Supreme Court of the State of New York, the U.S. District Court
for the Southern District of Florida or the courts of general jurisdiction
in Dade County, Miami, Florida for legal actions or proceedings not related
to the transactions contemplated by this Amendment.
D. Each of Premium and the Bank irrevocably appoints the following
agent to receive, for it and on its behalf, service of process in any suit,
action or proceeding relating to this Agreement: Proskauer Rose LLP, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Fax: ▇▇▇.▇▇▇.▇▇▇▇, Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇. If
for any reason such process agent is unable to act as such, Premium and the
Bank will promptly notify the Investor and within thirty (30) days appoint
a substitute process agent acceptable to the Investor. Nothing in this
Agreement will affect the right of the Investor to serve process in any
other manner permitted by law.
4.3 Counterparts; Effectiveness. This Amendment may be executed in any
number of separate counterparts, each of which, when so executed, shall be
deemed an original, and all such counterparts together shall constitute but one
and the same instrument.
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4.4 Expenses. Except as otherwise expressly provided herein, each party
hereto will bear its own costs and expenses incurred in connection with the
preparation, execution and performance of this Amendment and the transactions
contemplated hereby, including all fees and expenses of representatives, agents,
legal counsel and accountants.
4.5 Taxes. All payments required to be made by Premium and the Bank
hereunder shall be made to the Investor free and clear of, and without deduction
for, any and all present and future taxes, withholdings, levies, duties and
other governmental charges (including all stamp, documentary and other similar
duties and taxes, if any, in connection with such payments) ("Taxes"). If
Premium or the Bank is required by applicable law to make any deduction or
withholding on any payment as described above in respect of Taxes or otherwise,
Premium and the Bank shall: (i) promptly notify the Investor of such occurrence;
(ii) pay to the relevant taxation or other authorities the full amount of the
deduction or withholding within the time allowed; (iii) furnish to the Investor
within thirty (30) days of such payment, an official receipt from such
authorities for all amounts so deducted or withheld; and (iv) pay to the
Investor an additional amount so that the Investor receives on the due date of
such payment the full amount the Investor would have received had no such
deduction or withholding taken place. Premium and the Bank will indemnify and
hold harmless the Investor after the 30 days period referred to in the preceding
sentence if any Taxes were due and payable, and reimburse the Investor upon its
written request, for the amount of any Taxes so levied or imposed and paid by
the Investor. Upon demand by Premium and the Bank, the Investor shall, as soon
as practicable, deliver to such person or to such government or taxing authority
as Premium or the Bank reasonably directs, any form, certificate or document
which the Investor is entitled, or required, as a matter of law to deliver that
may be requested in order to allow Premium and the Bank to make payments
hereunder without any deduction or withholding for or on account of any Taxes or
with such deduction or withholding at a reduced rate. Notwithstanding anything
to the contrary herein, (i) all of Premium's and the Bank's obligations pursuant
to this Section 4.5 shall be subject to the Investor's compliance with the
immediately preceding sentence, and (ii) none of Premium's and the Bank's
obligations pursuant to this Section 4.5 shall apply with respect to income,
corporate and franchise taxes imposed on such payments as a result of a present
or former connection between the Investor and the jurisdiction of the
governmental authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
the Investor having executed or delivered documents relating to this
transaction, or having performed its obligations, or received a payment under,
or enforced this Amendment, the CD, any other Transaction Document or any other
document relating to this transaction).
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
GEOSOR CORPORATION
By: __________________________________
Name:
Title:
PREMIUM QUALITY FUND
By: __________________________________
Name:
Title:
GNB SUDAMERIS BANK S.A.
By: __________________________________
Name:
Title:
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