Exhibit 10.11
Master Loan and Security Agreement No. 4231
DEBTOR: StarMedia Network, Inc. SECURED PARTY: Charter Financial, Inc.
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In consideration of the mutual covenants set forth herein, the above named
Debtor and the above named Secured Party hereby enter into this Master Loan and
Security Agreement and agree to the terms and conditions set forth herein. Each
Loan Schedule which may be executed by Debtor and Secured Party from time to
time pursuant to this Master Loan and Security Agreement shall be deemed to be a
separate loan transaction incorporating all of the terms and conditions of this
Master Loan and Security Agreement. References in this Master Loan and Security
Agreement to "Agreement", "hereunder" and "herein" shall mean a Loan Schedule
which incorporates this Master Loan and Security Agreement.
1. Loan Schedules. Debtor shall evidence its agreement to enter into each
Agreement incorporating the terms hereof by executing and delivering to Secured
Party a Loan Schedule in the form annexed hereto as Exhibit 1. Debtor's
execution of a Loan Schedule shall obligate Debtor to make all of the payments
set forth in the Schedule of Obligations as set forth in the Loan Schedule. The
Loan Schedule shall set forth the amount of the Loan, the Term of the Loan, the
number of payments to be made and the amount and dates upon which such payments
are due. The Loan Schedule shall also set forth the Time Balance which means the
aggregate amount of all payments which are payable under the Agreement evidenced
by such Loan Schedule. Secured Party and Debtor shall have no obligation to
enter into or accept any Loan Schedule and no Loan Schedule shall be binding
upon a party until accepted by such party which acceptance shall be evidenced
only by the execution of such Loan Schedule by such party.
2. Grant of Security Interest. Debtor hereby grants to Secured Party a
security interest in the personal property referred to and/or described in each
Loan Schedule (hereinafter with all renewals, substitutions and replacements and
all parts, repairs, improvements, additions and accessories incorporated therein
or affixed thereto referred to as the "Equipment"), together with any and all
proceeds thereof and any and all insurance policies and proceeds with respect
thereto.
3. Obligations Secured. The aforesaid security interest is granted by
Debtor as security for (a) the payment of the Time Balance (as set forth in the
Loan Schedule) and the payment and performance of all other indebtedness and
obligations now or hereafter owing by Debtor to Secured Party, of any and every
kind and description, under the Agreement evidenced by such Loan Schedule, and
any and all renewals and extensions of the foregoing, and all interest, fees,
charges, expenses and attorneys' fees accruing or incurred in connection with
any of the foregoing (all of which Time Balance, indebtedness and obligations
are hereinafter referred to as the "Liabilities") and (b) the payment and
performance of all other indebtedness and obligations now or hereafter owing by
Debtor to Secured Party, of any and every kind and description, howsoever
arising or evidenced including without limitation those arising under other Loan
Schedules, (all of which indebtedness and obligations are hereinafter referred
to as the "Other Liabilities"). Subject to Paragraph 16, any nonpayment of any
installment or other amounts within 7 days of when due hereunder shall result in
the obligation on the part of Debtor promptly to pay also an amount equal to
five percent (5%), (or the maximum rate permitted by law, whichever is less) of
the installment or other amounts overdue.
4. Disclaimer of Warranties. DEBTOR ACKNOWLEDGES THAT SECURED PARTY MAKES
NO WARRANTIES, EXPRESS OR IMPLIED, IN RESPECT OF THE EQUIPMENT, INCLUDING,
WITHOUT LIMITATION. ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY
PARTICULAR PURPOSE. Secured Party shall not be liable to Debtor for any loss,
damage or expense of any kind or nature caused, directly or indirectly, by any
Equipment secured hereunder or the use or maintenance thereof or the failure of
operation thereof, or the repair, service or adjustment thereof, or by any delay
or failure to provide any such maintenance, repairs, service or adjustment, or
by any interruption of service or loss of use thereof or for any loss of
business howsoever caused. The Equipment shall be shipped directly to Debtor by
the supplier thereof and Debtor agrees to accept such delivery. No defect or
unfitness of the Equipment, nor any failure or delay on the part of the
manufacturer or the shipper of the Equipment to deliver the Equipment or any
part
thereof to Debtor, shall relieve Debtor of the obligation to pay the Time
Balance or any other obligation under this Agreement. Secured Party shall have
no obligation under this Agreement in respect of the fitness, quality,
condition, performance or usefulness of the Equipment and shall have no
obligation to install, erect, test, adjust or service the Equipment. Secured
Party agrees, so long as there shall not have occurred or be continuing any
Event of Default hereunder or event which with lapse of time or notice, or both,
might become an Event of Default hereunder, that Secured Party will permit
Debtor to enforce in Debtor's own name at Debtors sole expense any supplier's or
manufacturer's warranty or agreement in respect of the Equipment to the extent
that such warranty or agreement is assignable.
5. Assignment. Any transaction evidenced by a Loan Schedule shall be
assignable by Secured Party, and by its assigns, without the consent of Debtor,
but Debtor shall not be obligated to any assignee except upon written notice of
such assignment from Secured Party or such assignee. The obligation of Debtor to
pay and perform the Liabilities to such assignee shall be absolute and
unconditional and shall not be affected by any circumstance whatsoever, and such
payments shall be made without interruption or abatement notwithstanding any
event or circumstance whatsoever, including, without limitation, the late
delivery, non-delivery, destruction or damage of or to the Equipment, the
deprivation or limitation of the use of the Equipment, the bankruptcy or
insolvency of Secured Party or Debtor or any disaffirmance of this Agreement by
or on behalf of Debtor and notwithstanding any defense, set-off, recoupment or
counterclaim or any other right whatsoever, whether by reason of breach of this
Agreement or of any warranty in respect of the Equipment or otherwise which
Debtor may now or hereafter have against Secured Party, and whether any such
event shall be by reason of any act or omission of Secured Party (including,
without limitation, any negligence of Secured Party) or otherwise; provided,
however, that nothing herein contained shall affect any right of Debtor to
enforce against Secured Party any claim which Debtor may have against Secured
Party in any manner other than by abatement, attachment or recoupment of,
interference with, or set-off, counterclaim or defense against, the
aforementioned payments to be made to such assignee. Debtor's undertaking herein
to pay and perform the Liabilities to an assignee of Secured Party shall
constitute a direct, independent and unconditional obligation of Debtor to said
assignee. Said assignee shall have no obligations under this Agreement or in
respect of the Equipment and shall have no obligation to install, erect, test,
adjust or service the Equipment. Debtor also acknowledges and agrees that any
assignee of Secured Party's interest in any Loan Schedule which incorporates the
provisions of this Agreement shall have the right to exercise such rights,
privileges and remedies under the Agreement (either in its own name or in the
name of Secured Party) which by the terms of this Agreement are permitted to be
exercised by Secured Party.
6. Damage to or Loss of the Equipment; Requisition. Debtor assumes and
shall bear the entire risk of loss or damage to the Equipment from any and every
cause, whatsoever. No loss or damage to the Equipment or any part thereof shall
affect any obligation of Debtor with respect to the Liabilities and this
Agreement, which shall continue in full force and effect. Debtor shall advise
Secured Party in writing promptly of any item of Equipment lost or damaged and
of the circumstances and extent of such damage. If the Equipment is totally
destroyed, irreparably damaged, lost, stolen or title thereto shall be
requisitioned or taken by any governmental authority under the power of eminent
domain or otherwise, Debtor shall either replace the same with like equipment in
good repair, condition and working order, or pay to Secured Party the "Make
Whole Amount" as defined below, less the net amount of the recovery, if any,
actually received by Secured Party from insurance or otherwise for such
destruction, damage, loss, theft, requisition or taking. If no Event of Default
shall have occurred, Debtor shall make the choice between replacing the
Equipment or making payment as required by the preceding sentence. If an Event
of Default has occurred, Secured Party shall make such choice. Whenever the
Equipment is destroyed or damaged and, in the sole discretion of Secured Party,
such destruction or damage can be repaired, Debtor shall, at its expense,
promptly effect such repairs as Secured Party shall deem necessary for
compliance with clause (a) of paragraph 8 below (provided that if the estimated
costs of effecting such repairs exceeds the replacement cost of such equipment
or the estimated insurance proceeds of such equipment, Debtor may elect to
replace such equipment rather than effecting such repairs. Any proceeds of
insurance received by Secured Party with respect to such reparable damage to the
Equipment shall, at the election of Secured Party, be applied either to the
repair of the Equipment by payment by Secured Party directly to the party
completing the repairs, or to the reimbursement of Debtor for the cost of such
repairs; provided, however, that Secured Party shall have no obligation to make
such payment or any part thereof until receipt of such evidence as Secured Party
shall deem satisfactory that such repairs have been completed and further
provided that Secured Party may apply such proceeds to the payment of any of
the Liabilities or the Other Liabilities due if at the time such proceeds are
received by Secured Party there shall have occurred and be continuing any Event
of Default hereunder or any event which with lapse of time or notice, or both,
would become an Event of Default. Debtor shall, when and as requested by Secured
Party, undertake, by litigation or otherwise, in Debtor's name, the collection
of any claim against any person for such destruction, damage, loss, theft,
requisition or taking, but Secured Party shall not be obligated to undertake, by
litigation or otherwise, the collection of any claim against any person for such
destruction, damage, loss, theft, requisition or taking.
7. Representations and Warranties of Debtor. Debtor represents and
warrants that: it has the right, power and authority to enter into and carry out
the terms and provisions of this Agreement; this Agreement constitutes a valid
obligation of the Debtor and is enforceable in accordance with its terms; and
entering into this Agreement and carrying out its terms and provisions will not
violate the terms or constitute a breach of any other agreement to which Debtor
is a party.
8. Affirmative Covenants of Debtor. Debtor shall (a) cause the Equipment
to be kept in good condition and use the Equipment only in the manner for which
it was designed and intended so as to subject it only to ordinary wear and tear
and cause to be made all needed and proper repairs, renewals and replacements
thereto; (b) maintain at all times property damage, fire, theft and
comprehensive insurance for the full replacement value of the Equipment, with
loss payable provisions in favor of Secured Party and any assignee of Secured
Party as their interests may appear, and maintain public liability insurance in
amounts satisfactory to Secured Party, with all of said insurance and loss
payable provisions to be in form, substance and amount and written by companies
approved by Secured Party, and deliver the policies therefor, or duplicates
thereof, to Secured Party; (c) pay (or reimburse Secured Party if Secured Party
has made payment) for any and all taxes, assessments and other governmental
charges of whatever kind or character, however designated (together with any
penalties, fines or interest thereon) levied or based upon or with respect to
the Equipment, or upon the manufacture, purchase, ownership, delivery,
possession, use, storage, operation, maintenance, repair, return or other
disposition of the Equipment, or upon any receipts or earnings arising
therefrom, or for titling or registering the Equipment, or upon the income or
other proceeds received with respect to the Equipment or this Agreement
provided, however, that Debtor shall not pay taxes on or measured by the net
income of Secured Party; (d) pay all shipping and delivery charges and other
expenses incurred in connection with the Equipment and pay all lawful claims,
whether for labor, materials, supplies, rents or services, which might or could
if unpaid become a lien on the Equipment; (e) comply with all governmental laws,
regulations, requirements and rules, all instructions and warranty requirements
of Secured Party or the manufacturer of the Equipment, and with the conditions
and requirements of all policies of insurance with respect to the Equipment and
this Agreement; (f) ▇▇▇▇ and identify the Equipment with all information and in
such manner as Secured Party may request from time to time and replace promptly
any such marking or identification which are removed, defaced or destroyed; (g)
at any and all times during business hours, grant to Secured Party free access
to enter upon the premises wherein the Equipment shall be located and permit
Secured Party to inspect the Equipment; (h) reimburse Secured Party for all
reasonable charges, costs and expenses (including reasonable attorneys' fees)
incurred by Secured Party in defending or protecting its interests in the
Equipment, in the attempted enforcement or enforcement of the provisions of this
Agreement or in the attempted collection or collection of any of the
Liabilities; (i) indemnify and hold any assignee of Secured Party, and Secured
Party, harmless from and against all claims, losses, liabilities, damages,
judgments, suits, and all legal proceedings, and any and all costs and expenses
in connection therewith (including reasonable attorneys' fees) arising out of or
in any manner connected with the manufacture, purchase, ownership, delivery,
possession, use, storage, operation, maintenance, repair, return or other
disposition of the Equipment or with this Agreement, including, without
limitation, claims for injury to or death of persons and for damage to property,
and give Secured Party prompt notice of any such claim or liability (provided
however, that Debtor shall not indemnify and shall not hold Secured Party or any
assignee of Secured Party harmless from any loss, damage, cost or expense caused
by Secured Party's, or such assignee's own willfull misconduct, gross negligence
or knowing violations of law); and (j) maintain a system of accounts established
and administered in a manner which permits the issuance of financial statements
in accordance with generally accepted accounting principles and practices
consistently applied, and, within forty five (45) days after the end of each
fiscal quarter, deliver to Secured Party a balance sheet as at the end of such
quarter and statement of operations for such quarter, and, within one hundred
and thirty five (135) days after the end of each fiscal year, deliver to Secured
Party a balance sheet as at the end of such year and statement of operations for
such year, in each case prepared in
accordance with generally accepted accounting principles and practices
consistently applied and certified by Debtor's chief financial officer as fairly
presenting the financial position and results of operation of Debtor, and, in
the case of year end financial statements, certified by an independent
accounting firm acceptable to Secured Party.
9. Negative Covenants of Debtor. Debtor shall not (a) create, incur,
assume or suffer to exist any mortgage, lien, pledge or other encumbrance or
attachment of any kind whatsoever upon, affecting or with respect to the
Equipment or this Agreement or any of Debtor's interests hereunder; (b) make any
changes or alterations in or to the Equipment except as necessary for compliance
with clause (a) of paragraph 8 above or as permitted by suppliers warranties so
long as such changes or alterations do not reduce the value or marketability of
the equipment; (c) permit the name of any person, association or corporation
other than Secured Party to be placed on the Equipment as a designation that
might be interpreted as a claim of interest in the Equipment; (d) part with
possession or control of or suffer or allow to pass out of its possession or
control any of the Equipment or change the location of the Equipment or any part
thereof from the location shown above, provided, however that Debtor may do so
with the prior written consent of Secured Party, which consent shall not
unreasonably be withheld so long as Debtor has taken all steps reasonably
required by Secured Party to protect the Equipment and perfect Secured Party's
interests in the Equipment at the new location, including, without limitation,
filing UCC financing statements; (e) assign or in any way dispose of all or any
part of its rights or obligations under this Agreement or enter into any lease
of all or any part of the Equipment, provided, however that Debtor may lease the
Equipment with the prior written consent of Secured Party, which consent shall
not unreasonably be withheld so long as (i) the proposed lessee meets Charter's
standard credit criteria and signs a form of lease acceptable to Charter, (ii)
the rights of the lessee under such lease shall be subject and subordinate to
Charter's rights and interests in the Equipment,(iii) such lease shall be
collaterally assigned to Charter, and (iv) such leasing shall not relieve Debtor
of any of its obligations hereunder; (f) change its name or address from that
set forth above unless it shall have given Secured Party no less than thirty
(30) days prior written notice thereof; or (g) sell, transfer, lease or
otherwise dispose of all or substantially all of Debtor's assets to any person
or entity without Secured Party's prior written consent which will not
unreasonably be withheld so long as such proposed sale, transfer, lease or other
disposition would not have a material adverse effect on Debtor's financial
condition or ability to continue its business.
10. Equipment Personalty. The Equipment is, and shall at all times be and
remain, personal property notwithstanding that the Equipment or any part thereof
may now be, or hereafter become, in any manner affixed or attached to, or
imbedded in, or permanently resting upon, real property or attached in any
manner to real property by cement, plaster, nails, bolts, screws or otherwise.
If requested by Secured Party with respect to any item of Equipment, Debtor will
obtain and deliver to Secured Party waivers of interest or liens in recordable
form, satisfactory to Secured Party, from all persons claiming any interest in
the real property on which such item of Equipment is installed or located.
11. Events of Default and Remedies. If any one or more of the following
events ("Events of Default") shall occur:
(a) Debtor shall fail to make any payment in respect of the
Liabilities within seven (7) days of when due; or
(b) any certification, statement, representation, warranty or
financial report or statement heretofore or hereafter furnished by or on behalf
of Debtor or any guarantor of any or all of the Liabilities proves to have been
false in any material respect at the time as of which the facts therein set
forth were stated or certified or has omitted any material contingent or
unliquidated liability or claim against Debtor or any such guarantor; or
(c) Debtor or any guarantor of any or all of the Liabilities shall
fail to perform or observe any covenant, condition or agreement to be performed
or observed by it hereunder or under any guaranty agreement and such failure
continues for fifteen (15) days from the date Secured Party gives Debtor notice
of such failure; or
(d) Debtor or any guarantor of any or all of the Liabilities shall
be in breach of or in default in the payment and performance of any obligation
relating to any of the Other Liabilities; or
(e) Debtor or any guarantor of any of Debtor's obligations hereunder
shall be in breach of or in default in the payment or performance of any
material obligation owing to any bank, lender, lessor or financial institution,
howsoever arising, present or future, contracted for or acquired, and whether
joint, several, absolute, contingent, secured, unsecured, matured or unmatured
(it is understood and agreed that obligations to pay money and compliance with
financial covenants constitute material obligations); or
(f) Debtor or any guarantor of any or all of the Liabilities shall
cease doing business as a going concern, make an assignment for the benefit of
creditors, admit in writing its inability to pay its debts as they become due,
file a petition commencing a voluntary case under any chapter of Title 11 of the
United States Code entitled "Bankruptcy" (the "Bankruptcy Code"), be adjudicated
as insolvent, file a petition seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
arrangement under any present or future statute, law, rule or regulation or file
an answer admitting the material allegations of a petition filed against it in
any such proceeding, consent to the filing of such a petition or acquiescence in
the appointment of a trustee, receiver or liquidator of it or of all or any part
of its assets or properties, or take any action looking to its dissolution or
liquidation; or
(g) an order for relief against Debtor or any guarantor of any or
all of the Liabilities shall have been entered under any chapter of the
Bankruptcy Code or a decree or order by a court having jurisdiction in the
premises shall have been entered approving as properly filed a petition seeking
reorganization, arrangement, readjustment, liquidation, dissolution or similar
relief against Debtor or any guarantor of any or all of the Liabilities under
any present or future statute, law, rule or regulation, or within forty five
(45) days after the appointment without Debtor's or such guarantor's consent or
acquiescence of any trustee, receiver or liquidator of it or such guarantor or
of all or any part of its or such guarantor's assets and properties, such
appointment shall not be vacated, or an order, judgment or decree shall be
entered against Debtor or such guarantor by a court of competent jurisdiction
and shall continue in effect for any period of twenty (20) consecutive days
without a stay of execution, or any execution or writ or process shall be issued
under any action or proceeding against Debtor whereby the Equipment or its use
may be taken or restrained; or
(h) Debtor shall fail to have and maintain unrestricted cash or cash
equivalents ( as those terms are used in accordance with generally accepted
accounting principles) of at least $10,000,000.00 at all times during the Term
of all Loan Schedules;
then and in any such event, Secured Party may, at the sole discretion of Secured
Party, without notice or demand and without limitation of any rights and
remedies of Secured Party under the Uniform Commercial Code, take any one or
more of the following steps:
(1) declare all of the Time Balance to be due and payable, whereupon
the same shall forthwith mature and become due and payable as provided for in
paragraph 16 below, provided, however, upon the occurrence of any of the events
specified in subparagraphs (f) and (g) above, all sums as specified in this
clause (1) shall immediately be due and payable without notice to Debtor (the
date on which Secured Party declares all of the Time Balance to be due and
payable is hereinafter referred to as the "Declaration Date");
(2) proceed to protect and enforce its rights by suit in equity,
action at law or other appropriate proceedings, whether for the specific
performance of any agreement contained herein, or for an injunction against a
violation of any of the terms hereof, or in aid of the exercise of any other
right, power or remedy granted hereby or by law, equity or otherwise; and
(3) at any time and from time to time, with or without judicial
process and with or without the aid or assistance of others, enter upon any
premises wherein any of the Equipment may be located and, without resistance or
interference by Debtor, take possession of the Equipment on any such premises,
and require Debtor to assemble and make available to Secured Party at the
expense of Debtor any part or all of the Equipment at any place or time
designated by Secured Party; and remove any part or all of the Equipment from
any premises wherein the same may be located for the purpose of effecting the
sale or other disposition thereof; and sell, resell, lease, assign and deliver,
grant options for or otherwise dispose of any or all of the Equipment in its
then condition or following any commercially reasonable preparation or
processing, at public or private sale or proceedings, by one or more contracts,
in one or more parcels, at the same or different times,
with or without having the Equipment at the place of sale or other
disposition (provided that Secured Party shall not prevent the prospective
purchaser from inspecting the Equipment prior to such sale), for cash and/or
credit, and upon any terms, at such place(s) and time(s) and to such persons,
firms or corporations as Secured Party shall deem best, all without demand
for performance or any notice or advertisement whatsoever, except that Debtor
shall be given ten (10) business days' written notice of the place and time
of any public sale or of the time after which any private sale or other
intended disposition is to be made, which notice Debtor hereby agrees shall
be deemed reasonable notice thereof. If any of the Equipment is sold by
Secured Party upon credit or for future delivery, Secured Party shall not be
liable for the failure of the purchaser to pay for same and in such event
Secured Party may resell such Equipment. Secured Party may buy any part or
all of the Equipment at any public sale and if any part or all of the
Equipment is of a type customarily sold in a recognized market or which is
the subject of widely distributed standard price quotations Secured Party may
buy at private sale and may make payment therefor by application of all or a
part of the Liabilities and of all or a part of any Other Liabilities. Any
personalty in or attached to the Equipment when repossessed may be held by
Secured Party without any liability arising with respect thereto, and any and
all claims in connection with such personalty shall be deemed to have been
waived unless notice of such claim is made by certified or registered mail
upon Secured Party within three business days after repossession.
Secured Party shall apply the cash proceeds from any sale or other
disposition of the Equipment first, to the reasonable expenses of re-taking,
holding, preparing for sale, selling, leasing and the like, and to reasonable
attorneys' fees and other expenses which are to be paid or reimbursed to
Secured Party pursuant hereto, and second, to all outstanding portions of the
Liabilities and to any Other Liabilities in such order as Secured Party may
elect, and third, any surplus to Debtor, subject to any duty of Secured Party
imposed by law to the holder of any subordinate security interest in the
Equipment known to Secured Party; provided however, that Debtor shall remain
liable with respect to unpaid portions of the Liabilities owing by it and
will pay Secured Party on demand any deficiency remaining with interest as
provided for in paragraph 16 below.
(4) Within 10 days after the end of each calendar month, Debtor's
chief Financial Officer or other authorized officer having knowledge, shall
provide Secured Party with a written statement setting forth Debtor's
unrestricted cash/cash equivalent balance as at the end of such calendar
month. In the event that Debtor fails to be in compliance with provision (h)
set forth hereinabove, Debtor must cure the Event of Default resulting from
such failure by delivering to Secured Party no later than forty (40) days
following the end of the calendar month to which such failure applies, a
letter of credit in an amount equal to the then present value all remaining
payments due under the Agreement, computed using a discount rate equal to the
Make Whole Rate as defined below, which letter of credit shall be
substantially in the form annexed hereto as exhibit 1, and issued by a bank
acceptable to Secured Party (the "LC"). It shall be an Event of Default under
the Agreement if Debtor, at any time prior to the end of the term of the
Agreement, the LC is not in full force and effect or Secured Party receives
notice that the LC will not be replaced or renewed
12. Secured Party's Right to Perform for Debtor. If Debtor fails to
perform or comply with any of its agreements contained herein Secured Party may
perform or comply with such agreement and the amount of any payments and
expenses incurred by Secured Party in connection with such performance or
compliance, together with interest thereon at the rate provided for in paragraph
16 below, shall be deemed a part of the Liabilities and shall be payable by
Debtor upon demand.
13. Further Assurances. Debtor will cooperate with Secured Party for the
purpose of protecting the interests of Secured Party in the Equipment,
including, without limitation, the execution of all Uniform Commercial Code
financing statements requested by Secured Party. Secured Party and any assignee
of Secured Party are each authorized to the extent permitted by applicable law
to file one or more Uniform Commercial Code financing statements disclosing any
security interest in the Equipment without the signature of Debtor. Debtor will
pay all costs of filing any financing, continuation or termination statements
with respect to this Agreement, including, without limitation, any documentary
stamp taxes relating thereto. Debtor will do whatever may be necessary to have a
statement of the interest of Secured Party and of any assignee of Secured Party
in the Equipment noted on any certificate of title relating to the Equipment and
will deposit said certificate with Secured Party or such assignee. Debtor shall
execute and deliver to Secured Party, upon request, such other instruments and
assurances as Secured Party deems necessary or advisable for the implementation,
effectuation, confirmation or perfection of this Agreement and any rights of
Secured Party hereunder.
14. Non-Waiver; Etc. No course of dealing by Secured Party or Debtor or
any delay or omission on the part of Secured Party or Debtor in exercising any
rights hereunder shall operate as a waiver of any rights of Secured Party or
Debtor, as the case may be. No waiver or consent shall be binding upon Secured
Party or Debtor unless it is in writing and signed by the party granting such
waiver or consent. A waiver on any one occasion shall not be construed as a bar
to or a waiver of any right and/or remedy on any future occasion. To the extent
permitted by applicable law, Debtor hereby waives the benefit and advantage of,
and covenants not to assert against Secured Party, any valuation, inquisition,
stay, appraisement, extension or redemption laws now existing or which may
hereafter exist which, but for this provision, might be applicable to any sale
or other disposition made under the judgment, order or decree of any court or
under the powers of sale and other disposition conferred by this Agreement or
otherwise. Debtor hereby waives any right to a jury trial with respect to any
matter arising under or in connection with this Agreement.
15. Entire Agreement; Severability; Etc. This Agreement constitutes the
entire agreement between Secured Party and Debtor and all conversations,
agreements and representations relating to this Agreement or to the Equipment
are integrated herein. If any provision hereof or any remedy herein provided for
shall be invalid under any applicable law, such provision or remedy shall be
inapplicable and deemed omitted, but the remaining provisions and remedies
hereunder shall be given effect in accordance with the intent hereof. Neither
this Agreement nor any term hereof may be changed, discharged, terminated or
waived except in an instrument in writing signed by the party against which
enforcement of the change, discharge, termination or waiver is sought. This
Agreement shall in all respects be governed by and construed in accordance with
the internal laws of the State of New York, including all matters of
construction, validity and performance, and shall be deemed a purchase money
security agreement within the meaning of the Uniform Commercial Code. The
captions in this Agreement are for convenience of reference only and shall not
define or limit any of the terms or provisions hereof. This Agreement shall
inure to the benefit of and be binding upon Secured Party and Debtor and their
respective successors and assigns, subject, however, to the limitations set
forth in this Agreement with respect to Debtors assignment hereof. No right or
remedy referred to in this Agreement is intended to be exclusive but each shall
be cumulative and in addition to any other right or remedy referred to in this
Agreement or otherwise available to Secured Party at law or in equity, and shall
be in addition to the provisions contained in any instrument referred to herein
and any instrument supplemental hereto. Debtor shall be liable for all
reasonable costs and expenses, including reasonable attorneys' fees and
disbursements, incurred by reason of the occurrence of any Event of Default or
the exercise of Secured Party's remedies with respect thereto. Time is of the
essence with respect to this Agreement and all of its provisions.
16. Prepayment; Rebate; Interest. Except as set forth in a written
prepayment agreement signed by Secured Party and Debtor, the Debtor may not
prepay the Time Balance, in whole or in part, at any time. In the event Secured
Party declares all of the Time Balance to be due and payable pursuant to clause
(1) of paragraph 11 above, Debtor shall pay to Secured Party an amount equal to
the sum of (a) all accrued and unpaid amounts as of the Declaration Date plus
interest thereon, (b) the present value of all future installments set forth in
this Agreement over the remaining unexpired term of this Agreement discounted to
present value using the "Make Whole Rate" as the discount rate, (provided that
the amount of interest earned by Secured Party computed as aforesaid shall not
exceed the highest amount permitted by applicable law) and (c) any costs,
expenses and fees incurred by Secured Party and/or the holder of the applicable
Loan Schedule in connection with the pay off of the Time Balance, including
without limitation any breakage fees and any other amounts due to be paid to any
securitization facility, assignee or interest rate hedge party. The sum of
"(a)", "(b)" and "(c)" is the "Make Whole Amount". The Make Whole Amount
computed in accordance with the preceding sentence shall bear interest from and
after the Declaration Date, and all other Liabilities due and payable under this
Agreement (including past due installments) shall bear interest from and after
their respective due dates, at the lesser of 1.25% per month or the highest rate
permitted by applicable law, provided, however, that Debtor shall have no
obligation to pay any interest on interest except to the extent permitted by
applicable law. The Make Whole Rate shall mean, (i) If Charter Financial is the
holder of the Agreement, the implicit rate upon which the payments under the
applicable Loan Schedule were calculated or, if the Loan Schedule is held by a
securitization facility or assignee of Charter Financial, lnc, the discount rate
upon which the amount paid by such facility or assignee was calculated, (ii) at
the Declaration Date, the yield of United States treasury notes having a
maturity equal to the then remaining unexpired term of the applicable
Loan Schedule, or (iii) at the Declaration Date, the rate quoted for deposits
for a period equal to the then remaining unexpired term of the applicable Loan
Schedule in an interbank dollar market selected by Secured Party, whichever is
lowest. If no maturity of United States treasury notes or rate quoted for
deposits as at the Declaration Date exactly corresponds to the remaining
unexpired term of the applicable Loan Schedule, then the United States treasury
note or rate with the closest maturity, not exceeding the remaining unexpired
term shall be used.
17. Consent to Jurisdiction. Debtor hereby irrevocably consents to the
jurisdiction of the courts of the State of New York and of any federal court
located in such state in connection with any action or proceeding arising out of
or relating to this Agreement or the transactions contemplated hereby. Any such
action or proceeding will be maintained in the United States District Court for
the Southern District of New York or in any court of the State of New York
located in the County of New York and Debtor waives any objections based upon
venue or forum non conveniens in connection with any such action or proceeding.
Debtor consents that process in any such action or proceeding may be served upon
it by registered mail directed to Debtor at its address set forth at the head of
this Agreement or in any other manner permitted by applicable law or rules of
court.
18. Notices. Notice hereunder shall be deemed given if served personally
or by certified or registered mail, return receipt requested, to Secured Party
and Debtor at their respective addresses set forth at the head of this
Agreement. Any party hereto may from to time by written notice to the other
change the address to which notices are to be sent to such party. A copy of any
notice sent by Debtor to Secured Party shall be concurrently sent by Debtor to
any assignee of Secured Party of which Debtor has notice.
The Debtor agrees to all the provisions set forth above. This Agreement is
executed pursuant to due authorization. DEBTOR ACKNOWLEDGES RECEIPT OF A SIGNED
TRUE COPY OF THIS AGREEMENT.
Date March 31 1999 Accepted on March 31, 1999
------------------ ---- ---------------- ----
StarMedia Network, Inc. Charter Financial, Inc.
(Signature of Proprietor or name
of Corporation or Partnership)
By [ILLEGIBLE] By: [ILLEGIBLE]
------------------------------------ -----------------------------------
Its VP Finance & Admin Its: Vice President
-----------------------------------
(if Corporation, President or Vice President
should sign and give official title; if Partnership,
state partner)