Exhibit 2.4
GUARANTY AND SURETYSHIP AGREEMENT
THIS GUARANTY AND SURETYSHIP AGREEMENT (this "Guaranty"),
dated as of December 14, 2002, is made by UNITED BREWERIES (HOLDINGS) LIMITED,
an Indian company with offices at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ (the
"Guarantor"), in favor of ▇▇▇▇▇ FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, a
national banking association with offices at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (the "Trustee") and UBICS HOLDING COMPANY, a Delaware
corporation with offices at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("UBICS").
W I T N E S S E T H :
WHEREAS, UBICS, as trustor, and the Trustee are parties to a
Trust Agreement dated as of October 21, 2002 (the "Trust Agreement"), pursuant
to which the Trustee has acquired title to a Boeing 727 aircraft more
particularly described in the Trust Agreement (the "Aircraft"); and
WHEREAS, the Trustee and United Breweries Holdings, Ltd., a
North Carolina corporation and majority-owned subsidiary of the Guarantor (the
"Lessee"), entered into an Aircraft Lease Agreement dated as of December 14,
2002 (the "Lease") pursuant to which the Trustee has leased the Aircraft to
Lessee on a dry lease basis; and
WHEREAS, as a condition to the Trustee's acquisition of the
Aircraft and its execution and delivery of the Lease, the Trustee and UBICS have
required that Guarantor execute and deliver this Guaranty.
NOW, THEREFORE, in order to induce the Trustee to acquire the
Aircraft and enter into the Lease, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound, Guarantor does hereby covenant and agree with the
Trustee and UBICS as follows:
1. Definitions and Construction. Reference is hereby made to
the Lease for a statement of the terms thereof. All terms used in this Guaranty
which are defined in the Lease and not defined herein shall have the respective
meanings ascribed to such terms in the Lease.
2. Guaranty. Guarantor absolutely and unconditionally
guarantees and becomes surety for the full, prompt and punctual payment to the
Trustee, as and when due, and performance of any and all liabilities and
obligations of the Lessee to the Trustee under, or pursuant to the terms of the
Lease, whether for rent, fees, expenses or otherwise (all such liabilities and
obligations being herein called collectively the "Obligations"), together with
any and all reasonable expenses, including without limitation attorneys' fees
and disbursements, which may be incurred by the Trustee in collecting any or all
of the Obligations or enforcing any and all rights against Guarantor under this
Guaranty (herein the "Expenses"). Without limiting Guarantor's obligations
hereunder and notwithstanding any purported termination of this Guaranty, if any
bankruptcy, insolvency, reorganization, arrangement, readjustment, composition,
liquidation, dissolution, assignment for the benefit of creditors, or similar
event with respect to the Lessee or any co-guarantor or endorser of all or any
of the Obligations shall occur, and such occurrence shall result in the return
of (or in such event the Trustee shall be requested to return) any payment or
performance of any of the Obligations or Expenses, then (a) without further
notice, demand or other action, the obligations of Guarantor hereunder shall be
reinstated with respect to (i) such payment or performance returned (or
requested to be returned) and (ii) with respect to all further obligations
arising as
a result of such return or request, and (b) Guarantor shall thereupon be liable
therefor, without any obligation on the part of Lessee to contest or resist any
such return.
3. Nature and Term of Guaranty.
(a) The obligations and liability of Guarantor under this
Guaranty shall be independent, absolute, primary and direct, irrevocable and
unconditional, regardless of: any lack of validity or enforceability of the
Lease or any of the Obligations or Expenses; the voluntary or involuntary
liquidation, dissolution, sale or other disposition of all, or substantially all
of the assets, marshalling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition with creditors or readjustment of, or other similar
proceedings affecting the Lessee or Guarantor or any co-guarantor or endorser
of, any or all of the Obligations and Expenses or any of the assets of any of
them, or any contest of the validity of this Guaranty in any such proceeding; or
any law, regulation or decree now or hereafter in effect in any jurisdiction
which might in any manner affect any of such terms or provisions or any of the
rights of the Trustee with respect thereto or which might cause or permit the
Lessee or any co-guarantor or endorser of the Obligations and Expenses to invoke
any defense to, or any alteration in the time, amount or manner of payment of
any or all of the Obligations and Expenses or performance of this Guaranty.
(b) This Guaranty is a continuing guaranty and shall remain
in full force and effect until the Obligations, the Expenses and any and all
other amounts payable hereunder shall have been paid in full and the period
during which any payment by the Lessee or Guarantor is or may be subject to
rescission, avoidance or refund under the United States Bankruptcy Code (or any
similar state statute) shall have expired.
4. Payment in Accordance with Lease.
(a) Guarantor hereby guaranties that the Obligations and
Expenses shall be paid and performed strictly in accordance with the terms of
the Lease.
(b) If any Obligation or Expense is not paid or performed by
the Lessee punctually, subject to any applicable grace period, Guarantor will,
upon the Trustee's demand, immediately pay or perform such Obligation or Expense
or cause the same to be paid or performed. Guarantor will pay to the Trustee,
upon demand, all costs and expenses, including the Expenses, which may be
incurred by the Trustee in the collection or enforcement of Guarantor's
obligations under this Guaranty.
5. Rights and Remedies of the Trustee. The Trustee, in its
sole discretion, may proceed to exercise any right or remedy which it may have
under this Guaranty against Guarantor without first pursuing or exhausting any
rights or remedies which it may have against the Lessee or against any other
person or entity, and may proceed to exercise any right or remedy which it may
have under this Guaranty without regard to any actions or omissions of any other
person or entity, in any manner or order, without any obligation to marshal in
favor of Guarantor or other persons or entities and without releasing any of
Guarantor's obligations hereunder with respect to any unpaid Obligations and
Expenses. No remedy herein conferred upon or reserved to the Trustee is intended
to be exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy
given under this Guaranty or now or hereafter existing at law or in equity.
6. Actions by the Trustee Not Affecting Guaranty. The Trustee
may, at any time or from time to time, in such manner and upon such terms as it
may deem proper, extend or change the time of payment or the manner or place of
payment of, or otherwise modify or waive any of the terms of, or
-2-
release, exchange, settle or compromise any or all of the Obligations and
Expenses, or subordinate payment of the same, or any part thereof, to the
payment of any other liabilities or obligations of the Lessee which may at any
time be due or owing to the Trustee or anyone, or elect not to enforce any of
the Trustee's rights with respect to any or all of the Obligations and Expenses
or any collateral security therefor, all without notice to, or further assent of
Guarantor and without releasing or affecting Guarantor's obligations hereunder.
7. Payments Under Guaranty. All payments by Guarantor hereunder
shall be made in immediately available funds and in lawful money of the United
States of America to the Trustee at its office at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Attention: Corporate Trust Department MAC: U1254-031 or at
such other location as the Trustee shall specify by notice to Guarantor. All
payments by Guarantor under this Guaranty shall be made by Guarantor solely from
Guarantor's own funds and not from any funds of the Lessee.
8. Modifications and Waivers. No failure or delay on the part of
the Trustee in exercising any power or right under this Guaranty shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right
or power preclude any other or further exercise thereof or the exercise of any
other right or power under this Guaranty. No modification or waiver of any
provision of this Guaranty nor consent to any departure therefrom shall, in any
event, be effective unless the same is in writing signed by the Trustee and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice to, or demand on Guarantor, in any case,
shall entitle Guarantor to any other or further notice or demand in similar or
other circumstances.
9. Guarantor's Waiver. Guarantor hereby waives promptness,
diligence, presentment, demand, notice of acceptance and any other notice with
respect to any of the Obligations, the Expenses and this Guaranty. Guarantor
further irrevocably and unconditionally (i) agrees that if the Trustee or UBICS
brings legal proceedings against it or its assets in relation to this Guaranty,
no immunity from such legal proceedings (which will be deemed to include,
without limitation, suit, attachment prior to judgment, other attachment, the
obtaining of judgment, execution or other enforcement) will be claimed by or on
behalf of itself or with respect to its assets; and (ii) waives any such right
of immunity which it or its assets now has or may in the future acquire.
10. Waiver of Subrogation. Guarantor hereby waives (a) any right
which Guarantor may now have or hereafter acquire by way of subrogation under
this Guaranty, by law or otherwise or by way of reimbursement, indemnity,
exoneration, or contribution; or (b) any right to assert defenses as the primary
obligor of the Obligations; or (c) any other claim which it now has or may
hereafter acquire against the Lessee or any other person or against or with
respect to the Lessee's property (including, without limitation, any property
which has been pledged to secure the Obligations); or (d) any right to enforce
any remedy which the Trustee may now have or hereafter acquire against the
Lessee or any other guarantor, maker or endorser; in any case, whether any of
the foregoing claims, remedies and rights may arise in equity, under contract,
by payment, statute, common law or otherwise. If in violation of the foregoing
any amount shall be paid to Guarantor on account of any such rights at any time,
such amount shall be held in trust for the benefit of the Trustee and shall
forthwith be paid to the Trustee to be credited and applied against the
Obligations and Expenses, whether matured or unmatured, in accordance with the
terms of the Lease.
11. No Setoff by Guarantor. No setoff, counterclaim, deduction,
reduction, or diminution of any obligation, or any defense of any kind or nature
which Guarantor has or may have against the Lessee, the Trustee or UBICS shall
be available hereunder to Guarantor.
-3-
12. Representations and Warranties. Guarantor hereby represents and
warrants as follows:
(a) Guarantor is an Indian company duly organized, validly existing
and in good standing under the laws of India, and has full right, power and
authority to enter into, and perform this Guaranty.
(b) The execution, delivery and performance by Guarantor of this
Guaranty has been duly authorized by all necessary actions, and do not and will
not contravene any law or any contract binding on, or affecting Guarantor.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required for
the due execution, delivery and performance by Guarantor of this Guaranty.
(d) This Guaranty is a legal, valid and binding obligation of
Guarantor enforceable against the Guarantor in accordance with its terms.
(e) There is no pending or threatened action or proceeding affecting
Guarantor before any court, governmental agency or arbitrator which may
materially adversely affect the financial condition of Guarantor.
(f) Guarantor is subject to civil commercial law with respect to its
obligations under the Guaranty and neither Guarantor nor any of its assets is
entitled to any right of immunity and the entry into and performance of the
Guaranty by Guarantor constitutes private and commercial acts.
13. Covenant. Guarantor covenants and agrees that, so long as any part of
the Obligations and Expenses shall remain unpaid, Guarantor shall maintain its
corporate existence and shall not dissolve or otherwise dispose of all, or
substantially all of its assets.
14. Appointment of Agent for Service of Process. If for any reason
Guarantor not be subject to service of process in the State of Delaware during
the term of this Guaranty, Guarantor hereby appoints, without power of
revocation, ▇▇▇▇ ▇. Tauber, Coblentz, Patch, ▇▇▇▇▇ & Bass LLP, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇/▇▇/ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ as the agent of Guarantor upon whom
may be served all process, pleadings, notices or other documents which may be
served upon Guarantor under this Guaranty.
15. Addresses for Notices. All requests, consents, notices and other
communications required or permitted hereunder or in connection herewith shall
be deemed satisfactorily given if in writing and delivered personally or by
registered or certified mail, postage pre-paid, by reliable overnight courier,
or by telecopier to the parties at their respective addresses set forth below or
at such other address as may be given by any party to the other in writing in
accordance with this Section 15:
If to Guarantor:
United Breweries (Holdings) Limited
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
-4-
If to the Lessee:
United Breweries Holdings, Ltd.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and
United Breweries Holdings, Ltd.
▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Trustee:
▇▇▇▇▇ Fargo Bank Northwest, National Association
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Corporate Trust Department MA: U1254-031
If to UBICS:
UBICS Holding Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to
UBICS, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
16. Continuing Guaranty. This Guaranty is a continuing guaranty and shall
(i) remain in full force and effect until the Obligations, the Expenses and all
other amounts payable under this Guaranty shall have been paid in full and the
period during which any payment by the Lessee or Guarantor is or may be subject
to avoidance or refund under the United States Bankruptcy Code (or any similar
statute) shall have expired, (ii) be binding upon Guarantor and the successors
and assigns of Guarantor, and (iii) inure to the benefit of, and be enforceable
by the Trustee and UBICS and their respective successors, transferees and
assigns.
17. Entire Agreement. This Guaranty constitutes the entire agreement, and
supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
-5-
18. Severability. The invalidity or unenforceability of any one or more
portions of this Guaranty shall not affect the validity or enforceability of the
remaining portions of this Guaranty.
19. Governing Law. This Guaranty shall be deemed to be a contract under the
laws of the State of Delaware, without reference to conflicts-of-laws principles
and for all purposes shall be governed by and construed in accordance with such
laws.
20. Jurisdiction, Venue, Trial By Jury. Guarantor hereby (a) agrees that
any litigation, action or proceeding arising out of or relating to this Guaranty
shall be instituted in the courts of the State of Delaware or the United States
of America; (b) waives any objection which Guarantor might have now or hereafter
to the venue in such courts of any such litigation, action or proceeding; (c)
irrevocably submits to the venue and exclusive jurisdiction of such courts in
any such litigation, action or proceeding; (d) irrevocably consents to personal
jurisdiction in such courts and further agrees that service of process upon
Guarantor may be effected by certified mail to the address provided in Section
15 of this Guaranty or by any other means permitted by law; (e) waives any claim
or defense of inconvenient forum; and (f) waives any right to trial by jury. The
foregoing shall not preclude the Trustee or UBICS from seeking to enforce this
Guaranty in any other court of competent jurisdiction.
IN WITNESS WHEREOF, for good and valuable consideration and intending to be
legally bound hereby, this Guaranty has been executed by Guarantor as of the
date hereof.
ATTEST: UNITED BREWERIES (HOLDINGS) LIMITED
By:________________________________ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: Dr. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chairman
-6-
