EXHIBIT 4.5
WAIVER AND OMNIBUS AMENDMENT
THIS WAIVER AND OMNIBUS AMENDMENT (this "OMNIBUS AMENDMENT"),
dated as of June 26, 2002 is among W1 Receivables, L.P., a Texas limited
partnership ("W1R"), Xxxxxxxxxxx International, Inc., a Delaware corporation
("WEATHERFORD"), Bank One, NA (Main Office Chicago), individually ("BANK ONE"),
Jupiter Securitization Corporation ("CONDUIT" and, together with Bank One, the
"PURCHASERS"), Bank One, NA (Main Office Chicago), as agent for the Purchasers
(the "AGENT"), Weatherford Artificial Lift Systems, Inc., a Delaware corporation
("WEATHERFORD ALS"), Weatherford U.S., L.P., a Louisiana limited partnership
("WEATHERFORD U.S." and together with Weatherford ALS, the "INITIAL
ORIGINATORS"), and Xxxxxxxxxxx International Ltd., a Bermuda exempted company
(the "BERMUDA PARENT").
PRELIMINARY STATEMENTS
Initial Originators, as sellers, and W1R, as purchaser, are
parties to that certain U.S. RECEIVABLES SALE AGREEMENT dated as of
July 2, 2001 (the "SALE AGREEMENT");
W1R, as seller, Weatherford, as Initial Servicer, the
Purchasers, and the Agent are parties to that certain U.S. Receivables
Purchase Agreement dated as of July 2, 2001 (as previously amended and
otherwise modified, the "PURCHASE AGREEMENT");
Weatherford, as performance guarantor, is a party of that
certain Performance Undertaking dated as of July 2, 2001 in favor of
W1R (the "PERFORMANCE UNDERTAKING");
Seller has requested that the Agent and the Purchasers extend
the Liquidity Termination Date to August 30, 2002;
Weatherford, the Bermuda Parent, Xxxxxxxxxxx U.S. Holdings,
L.L.C., a Delaware limited liability company and wholly owned
subsidiary of Weatherford ("U.S. HOLDINGS") and Xxxxxxxxxxx Merger
Inc., a Delaware corporation ("MERGER SUB") and indirect wholly owned
subsidiary of the Bermuda Parent have entered into an Agreement and
Plan of Merger dated as of May 8, 2002 (the "MERGER AGREEMENT") for the
purpose of reorganizing and pursuant to which the Merger Sub will merge
with and into Weatherford, with Weatherford surviving as an indirect
subsidiary of the Bermuda Parent whose common shares will be exchanged
on a one-for-one basis with outstanding shares of common stock of
Weatherford (the "REORGANIZATION");
The Reorganization may give rise to a Termination Event under
the Sale Agreement and an Amortization Event under the Purchase
Agreement by reason
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of a Change of Control (as defined in Exhibit A to the Sale Agreement)
and by reason of other events; and
The Agent, the Purchasers and W1R are willing to waive such
Termination Event and Amortization Event and to agree to certain
amendments to the Sale Agreement, the Purchase Agreement and the
Performance Undertaking subject to the terms and conditions as
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. Defined Terms. Unless defined elsewhere herein,
capitalized terms used in this Omnibus Amendment shall have the meanings
assigned to such terms in the Sale Agreement or in the Purchase Agreement, as
the case may be.
SECTION 2. The Sale Agreement Waivers. Immediately upon the
effectiveness of this Omnibus Amendment, the Agent and the Purchasers (each as
assignee of W1R) and W1R hereby (i) waive compliance with Section 6.1(e) of the
Sale Agreement to the extent, and solely to the extent, necessary to permit the
Reorganization and (ii) agree that the Reorganization and the other transactions
contemplated by the Merger Agreement shall not constitute a Termination Event.
SECTION 3. The Sale Agreement Amendments. The Sale Agreement
is hereby amended as follows:
(a) Section 2.1(e) of the Sale Agreement is hereby amended by
replacing the word "Xxxxxxxxxxx'x" with the phrase "Xxxxxxxxxxx'x or the Bermuda
Parent's".
(b) Section 2.1(m) of the Sale Agreement is hereby amended by
replacing the phrase "the Performance Guarantor and its Subsidiaries" with the
phrase "any Performance Guarantor and its Subsidiaries".
(c) Section 2.1(o) of the Sale Agreement is hereby amended by
replacing the word "Weatherford" with the phrase "Each of Weatherford and the
Bermuda Parent".
(d) The introductory phrase of Section 4.1(a) of the Sale
Agreement is hereby amended by replacing the word "Weatherford" with the phrase
"Each of Weatherford and the Bermuda Parent".
(e) Sections 4.1(a)(i), (ii), (iii) and (v) of the Sale
Agreement are hereby further amended by replacing the word "Weatherford" with
the phrase "Weatherford and the Bermuda Parent, as the case may be" each time
such word appears in Sections 4.1(a)(i), (ii), (iii) and (v).
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(f) The introductory phrase of Section 4.1(b) of the Sale
Agreement is hereby amended by replacing the word "Weatherford" with the phrase
"Each of Weatherford and the Bermuda Parent".
(g) Section 4.1(b)(ii) of the Sale Agreement is hereby amended
by replacing the word "Weatherford" with the phrase "the Bermuda Parent".
(h) Section 4.1(j) of the Sale Agreement is hereby amended by
replacing the word "Weatherford" with the phrase "Weatherford or the Bermuda
Parent".
(i) Sections 4.2(f), 5.1, 5.2, 8.1, and 8.11 of the Sale
Agreement are hereby amended by replacing the phrase "Section 8.5" with the
phrase "Section 8.12" each time such phrase appears in those Sections.
(j) Section 6.1 of the Sale Agreement is hereby amended by
replacing the phrase "the Performance Guarantor" with the phrase "any
Performance Guarantor" each time such phrase appears in Section 6.1.
(k) Section 8.3(a) of the Sale Agreement is hereby amended by
replacing the word "Xxxxxxxxxxx'x" with the phrase "Xxxxxxxxxxx'x or the Bermuda
Parent's".
(l) The following definitions set forth in Exhibit A to the
Sale Agreement are hereby amended and restated in their entirety to read as
follows:
"CHANGE OF CONTROL" means (a) the acquisition by any Person,
or two or more Persons acting in concert, of beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934) of 50% or more of
the outstanding Equity Interests of Weatherford, the Bermuda Parent or
(b) any of Weatherford or the Bermuda Parent ceases to own, directly or
indirectly, 100% of the outstanding Equity Interests of any Originator.
"PERFORMANCE GUARANTOR" means each of Weatherford and the
Bermuda Parent.
"PERFORMANCE UNDERTAKING" means an undertaking in the form
attached to the U.S. Receivables Purchase Agreement as an exhibit, and
shall include an Amended and Restated Performance Undertaking dated as
of June 26, 2002 duly executed by each of the Performance Guarantors.
(m) Exhibit A to the Sale Agreement is hereby further amended
by adding the following definitions thereto in their proper alphabetical order:
"BERMUDA PARENT" means Xxxxxxxxxxx International Ltd., a
Bermuda exempted company.
"MERGER AGREEMENT" means that certain Agreement and Plan of
Merger among the Bermuda Parent, Xxxxxxxxxxx, U.S. Holdings, and Merger
Sub dated as of May 8, 2002.
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"MERGER SUB" means Xxxxxxxxxxx Merger Inc., a Delaware
corporation.
"REORGANIZATION" means the consummation of the transactions
contemplated by the Merger Agreement, including the exchange of
outstanding common stock of Weatherford on a one-for-one basis with the
outstanding common stock of the Bermuda Parent pursuant to and in
accordance with the Merger Agreement.
"U.S. HOLDINGS" means Weatherford U.S. Holdings LLC, a
Delaware limited liability company.
(n) The definition of "SALE TERMINATION DATE" set forth in
Exhibit A to the Sale Agreement is hereby amended by replacing the phrase "the
Performance Guarantor" with the phrase "any Performance Guarantor".
(o) The definition of "TRANSACTION DOCUMENTS" set forth in
Exhibit A to the Sale Agreement is hereby amended by replacing the phrase "the
Performance Guarantor" with the phrase "the Performance Guarantors".
SECTION 4. The Purchase Agreement Waivers. Immediately upon
the effectiveness of this Omnibus Amendment, the Agent and the Purchasers
hereby:
(a) waive compliance with:
(i) Section 9.1(f)(ii) of the Agreement for the three months
ending May 31, 2002 and the three months ending June 30, 2002; and
(ii) Section 9.1(g) of the Sale Agreement to the extent, and
solely to the extent, necessary to permit the Reorganization; and
(b) agree that the Reorganization and the other transactions
contemplated by the Merger Agreement shall not constitute an Amortization Event.
SECTION 5. The Purchase Agreement Amendments. The Purchase
Agreement is hereby amended as follows:
(a) Section 5.1(e) of the Purchase Agreement is hereby amended
by replacing the word "Xxxxxxxxxxx'x" with the phrase "Xxxxxxxxxxx'x and the
Bermuda Parent's".
(b) Section 5.1(m) of the Purchase Agreement is hereby amended
and restated in its entirety to read as follows:
(m) Material Adverse Effect (i) Each of the initial Servicer
and the Bermuda Parent represents and warrants that (in the case of
initial Servicer, since December 31, 2000), no event has occurred that
would have a material adverse effect on the financial condition or
operations of the initial Servicer and its Subsidiaries or the Bermuda
Parent and its Subsidiaries, respectively, in each case taken as a
whole, or the ability of the initial Servicer to perform its
obligations under this Agreement or the ability of the Bermuda Parent
to perform its obligations under its Performance Undertaking,
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respectively, and (ii) Seller represents and warrants that since the
date of this Agreement, no event has occurred that would have a
material adverse effect on (A) the financial condition or operations of
Seller, or (B) the ability of Seller to perform its obligations under
the Transaction Documents.
(c) Section 5.1(o) of the Purchase Agreement is hereby amended
by replacing the word "Weatherford" with the phrase "Each of Weatherford and the
Bermuda Parent".
(d) Sections 7.1(a)(i)-(ii) of the Purchase Agreement are
hereby amended by replacing the word "Weatherford" with the phrase "Weatherford
and the Bermuda Parent, as the case may be" each time such word appears in
Sections 7.1(a) (i)-(ii),
(e) Section 7.1(b)(ii) of the Purchase Agreement is hereby
amended by replacing the word "Weatherford" with the phrase "the Bermuda Parent"
each time such word appears in Section 7.1(b)(ii).
(f) Section 7.1(b)(v) of the Purchase Agreement is hereby
amended by replacing the word "Xxxxxxxxxxx'x" with the phrase "Xxxxxxxxxxx'x or
the Bermuda Parent's".
(g) Section 7.1(c) of the Purchase Agreement is hereby amended
by replacing the word "Weatherford" with the phrase "Weatherford or the Bermuda
Parent".
(h) Section 7.1(i) of the Purchase Agreement is hereby amended
by replacing the word "Weatherford" with the phrase "Weatherford and the Bermuda
Parent".
(i) Section 7.2(a) of the Purchase Agreement is hereby amended
by replacing the word "Weatherford" with the phrase "Weatherford or the Bermuda
Parent".
(j) Section 8.1(a) of the Purchase Agreement is hereby amended
and restated in its entirety to read as follows:
(a) The servicing, administration and collection of the
Receivables shall be conducted by such Person (the "SERVICER") so
designated from time to time in accordance with this Section 8.1.
Weatherford is hereby designated as, and hereby agrees to perform the
duties and obligations of, the Servicer pursuant to the terms of this
Agreement and agrees to perform such duties and obligations after the
Reorganization. The Agent may at any time following the occurrence of
an Amortization Event designate as Servicer any Person to succeed
Weatherford or any successor Servicer.
(k) Sections 9.1(k) and 9.1(l) of the Purchase Agreement are
hereby amended by replacing the phrase "Performance Guarantor" with the phrase
"any Performance Guarantor" each time such phrase appears in Sections 9.1(k) and
9.1(l).
(l) Section 14.6 of the Purchase Agreement is hereby amended
by replacing the phrase "the Servicer" with the phrase "the Servicer, the
Bermuda Parent".
(m) The following definition set forth in Exhibit I to the
Purchase Agreement are hereby amended and restated in its entirety to read as
follows:
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"CHANGE OF CONTROL" means (a) a "Change of Control" under and
as defined in the U.S. Receivables Sale Agreement shall occur with
respect to Weatherford or the Bermuda Parent, (b) Weatherford or the
Bermuda Parent ceases to own, directly or indirectly, at least a
majority of the Equity Interests of any Material Originator, or (c)
Weatherford or the Bermuda Parent ceases to own, directly or
indirectly, 100% of the outstanding Equity Interests of Seller;
PROVIDED, HOWEVER, that a Permitted Restructuring shall not constitute
a Change of Control under this Agreement.
"LIQUIDITY TERMINATION DATE" means August 30, 2002.
"MATERIAL ORIGINATOR" means any Originator who, in any period
of 12 consecutive months, has generated more than 10% of the total U.S.
Receivables of U.S. Holdings and its Subsidiaries.
"PERMITTED RESTRUCTURING" means (a) with respect to any
Originator, any merger, consolidation or similar combination of an
Originator (i) with another Originator, (ii) with and into a newly
formed entity that is (A) domiciled in the United States of America,
and (B) wholly-owned, directly or indirectly, by Weatherford and the
Bermuda Parent, with no assets (other than its initial paid-in capital)
and no liabilities (other than minimal organization costs) for the
purpose of changing its legal form from a corporation, partnership or
limited liability company domiciled in one state of the United States
to a corporation, partnership or limited liability company domiciled in
another state, from a corporation to a partnership or limited liability
company, from a partnership to a corporation or limited liability
company, or from a limited liability company to a partnership or
corporation, as the case may be, (iii) with any Person engaged in a
similar line of business as such Originator which would not, after
giving effect to such merger, consolidation or similar combination,
cause such Originator to be the Originator of Receivables with an
aggregate Outstanding Balance of more than 10% of the aggregate
Outstanding Balance thereof immediately prior to such merger,
consolidation or similar combination, and/or (iv) with any other Person
to whom the Agent gives its prior written consent, SO LONG AS: (1) the
successor or surviving entity unconditionally assumes such Originator's
(or Originators') respective obligations under the Transaction
Documents to which it is (or they are) a party immediately prior to
giving effect to such combination, (2) prior to the effectiveness of
such combination, all UCC financing statements necessary to maintain
the validity, perfection and priority of Seller's ownership interest in
the Receivables and Related Security acquired or to be acquired from
such Originator or Originators under the U.S. Receivables Sale
Agreement, and the Agent's ownership or security interest therein, have
been duly executed and filed in all necessary jurisdictions, and (3) if
the surviving entity in such combination(s) is not an existing party to
the U.S. Receivables Sale Agreement, all other documents required to be
delivered in connection with a Joinder Agreement under the U.S.
Receivables Sale Agreement have been duly executed and delivered
substantially contemporaneously with such combination(s), and (b) with
respect to Weatherford and the Bermuda Parent, any merger,
consolidation or similar combination of Weatherford or the Bermuda
Parent, as the case may be, with another Person so long as after giving
effect thereto: (i) the survivor unconditionally and expressly assumes,
in writing, all of Xxxxxxxxxxx'x or the Bermuda Parent's obligations,
as the case may be, under the Transaction Documents to which
Weatherford or the
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Bermuda Parent, as the case may be, was a party immediately prior to
such merger, consolidation or combination, and (ii) the survivor has
senior unsecured long-term debt ratings of at least "BBB-" from
Standard & Poor's Ratings Group and "Baa3" from Xxxxx'x Investors
Services, Inc.
"SELLER PARTIES" means (a) Seller, (b) at any time while it is
Servicer and/or Performance Guarantor, Weatherford, and (c) at any time
while it is a Performance Guarantor, the Bermuda Parent.
SECTION 6. Representations and Warranties. In order to induce
the Agent and the Purchasers to enter into this Omnibus Amendment, each of the
Seller Parties (which, for the purposes of this Omnibus Amendment, shall include
the Bermuda Parent) and each of the Initial Originators hereby represents and
warrants to the Agent and the Purchasers that (a) each of such Seller Party's
and such Initial Originator's representations and warranties contained in
Article II of the Sale Agreement and Article V of the Purchase Agreement is true
and correct as of the date hereof, (b) the execution and delivery by such Seller
Party and such Initial Originator of this Omnibus Amendment, and the performance
of its obligations hereunder, are within its corporate or limited partnership,
as applicable, powers and authority and have been duly authorized by all
necessary corporate or limited partnership, as applicable, action on its part,
and (c) this Omnibus Amendment has been duly executed and delivered by such
Seller Party and such Initial Originator and constitutes the legal, valid and
binding obligation of such Seller Party and such Initial Originator enforceable
against such Seller Party and such Initial Originator in accordance with its
terms, except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws relating to or limiting
creditors' rights generally and by general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
SECTION 7. Condition Precedent. This Omnibus Amendment shall
become effective as of the date first above written upon receipt by the Agent
of:
(a) counterparts of this Omnibus Amendment duly executed by
each of the parties hereto;
(b) counterparts of the amended and restated Performance
Undertaking in form and substance satisfactory to the Agent duly
executed by Weatherford and the Bermuda Parent (the "AMENDED AND
RESTATED PERFORMANCE UNDERTAKING");
(c) evidence of the payment to the Agent in immediately
available funds of an amount equal to all legal fees and expenses of the Agent
to the extent then invoiced;
(d) favorable opinions of a Bermuda legal counsel for the
Bermuda Parent and U.S. legal counsel for Weatherford reasonably acceptable to
the Agent and the Purchasers which addresses the following matters and such
other matters as the Agent and the Purchasers may reasonably request:
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(i) Each of the Bermuda Parent and Weatherford is a
corporation duly incorporated, validly existing, and in good standing
under the laws of its jurisdiction of incorporation;
(ii) The Bermuda Parent is not required to qualify in the
State of Texas;
(iii) The execution and delivery by the Bermuda Parent and
Weatherford of this Omnibus Amendment, the Amended and Restated
Performance Undertaking and each other Transaction Document to which
they are a party and their performance of their obligations thereunder
have been duly authorized by all necessary corporate action and
proceedings on the part of the Bermuda Parent and Weatherford and will
not:
(A) require any action by or in respect of, or filing
with, any governmental body, agency or official;
(B) violate, or constitute a default under, any
provision of applicable law or regulation or of its articles
or certificate of incorporation or bylaws or of any agreement,
judgment, injunction, order, decree or other instrument
binding upon the Bermuda Parent and Weatherford; or
(C) result in the creation or imposition of any
Adverse Claim on assets of Weatherford, the Bermuda Parent or
any of its Subsidiaries.
(iv) Each of this Omnibus Amendment, the Amended and Restated
Performance Undertaking and each other Transaction Document to which
the Bermuda Parent and Weatherford are a party has been duly executed
and delivered by the Bermuda Parent and Weatherford and constitutes the
legal, valid, and binding obligation of the Bermuda Parent and
Weatherford enforceable in accordance with its terms, except to the
extent the enforcement thereof may be limited by bankruptcy, insolvency
or similar laws affecting the enforcement of creditors' rights
generally and subject also to the availability of equitable remedies if
equitable remedies are sought;
(e) executed copies of (i) all consents from and
authorizations by any Persons and (ii) all waivers and amendments to existing
credit facilities, that are necessary in connection with the Reorganization;
(f) executed copies of (i) all consents from and
authorizations by any Persons and (ii) all waivers and amendments to existing
credit facilities, that are necessary in connection with the Reorganization;
(g) copy of the Resolutions of the Board of Directors or
comparable body of the Bermuda Parent and Weatherford, certified by its
Secretary authorizing the Bermuda Parent's and Xxxxxxxxxxx'x execution, delivery
and performance of this Omnibus Amendment, the Amended and Restated Performance
Undertaking and the other documents to be delivered by the Bermuda Parent and
Weatherford hereunder;
(h) Certificate of Incorporation of the Bermuda Parent and
Weatherford certified by the Secretary of State or comparable office of its
jurisdiction of organization;
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(i) Good Standing Certificate or equivalent for the Bermuda
Parent and Weatherford issued by the Secretaries of State or comparable office
of its jurisdiction of organization and, in the case of Weatherford, issued by
the Secretary of State of Texas; and
(j) a certificate of the Secretary of the Bermuda Parent and
Weatherford certifying (i) the names and signatures of the officers authorized
on its behalf to execute this Omnibus Amendment, the the Amended and Restated
Performance Undertaking and any other documents to be delivered by it hereunder
and (ii) a copy of the Bermuda Parent's Organic Documents.
SECTION 8. Miscellaneous.
(a) THIS OMNIBUS AMENDMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
NEW YORK.
(b) EACH OF SELLER PARTIES and the Initial OriginatorS HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK, NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS OMNIBUS AMENDMENT.
(c) EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN ANY
JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO,
OR CONNECTED WITH THIS OMNIBUS AMENDMENT.
(d) Except as expressly modified hereby, the Sale Agreement,
the Purchase Agreement and the other Transaction Documents remain unaltered and
in full force and effect. Each of the Sale Agreement, the Purchase Agreement and
the other Transaction Documents is hereby ratified and confirmed. This Omnibus
Amendment shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns (including any trustee in
bankruptcy).
(e) This Omnibus Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which when
taken together shall constitute one and the same agreement.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this
Omnibus Amendment to be executed and delivered by their duly authorized officers
as of the date hereof.
W1 RECEIVABLES, L.P.
BY: W1 GENERAL PARTNER, INC., ITS SOLE GENERAL PARTNER
By: /s/ XXXX X. XXXXXX
--------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
XXXXXXXXXXX INTERNATIONAL, INC., AS SERVICER AND PERFORMANCE GUARANTOR
By: /s/ XXXX X. XXXXXX
--------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President, General Counsel & Secretary
WEATHERFORD ARTIFICIAL LIFT SYSTEMS, INC.
By: /s/ XXXX X. XXXXXX
--------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President and Secretary
WEATHERFORD U.S., L.P.
BY: WUS HOLDING, LLC, ITS GENERAL PARTNER
By: /s/ XXXX X. XXXXXX
--------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President and Secretary
XXXXXXXXXXX INTERNATIONAL LTD., AS PERFORMANCE GUARANTOR
By: /s/ XXXX X. XXXXXX
--------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President, General Counsel and Secretary
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JUPITER SECURITIZATION CORPORATION
By: /s/ XXX X. XXXXXXXX
--------------------------------------------------
Xxx X. Xxxxxxxx, Authorized Signer
BANK ONE, NA (MAIN OFFICE CHICAGO),
AS A FINANCIAL INSTITUTION AND AS AGENT
By: /s/ XXX X. XXXXXXXX
--------------------------------------------------
Xxx X. Xxxxxxxx, Director, Capital Markets
Each of the undersigned (i) acknowledges the receipt of a copy of the Sale
Agreement, (ii) agrees to be bound by the provisions of, and agrees that each is
jointly and severally liable for all of the obligations under, the Sale
Agreement applicable to the undersigned (including in its capacity as a
Performance Guarantor and including those in Sections 4.1(a) and 4.1(b) of the
Sale Agreement) and hereby expressly assumes all such obligations, and (iii)
confirms that the representations and warranties in the Sale Agreement
applicable to the undersigned (including those in Section 2.1(m) of the Sale
Agreement) are true and correct
XXXXXXXXXXX INTERNATIONAL, INC.
By: /s/ XXXX X. XXXXXX
--------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President, General Counsel & Secretary
XXXXXXXXXXX INTERNATIONAL LTD.
By: /s/ XXXX X. XXXXXX
--------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President, General Counsel and Secretary
The undersigned (i) acknowledges the receipt of a copy of the Purchase Agreement
and the other Transaction Documents, (ii) agrees to be bound by the provisions
of, and agrees that it is liable for all of the obligations under, the Purchase
Agreement applicable to the undersigned (including in its capacity as a Seller
Party) and hereby expressly assumes all such obligations, and (iii) confirms
that the representations and warranties in the Purchase Agreement applicable to
the undersigned (including those in Section 5.1(m) of the Purchase Agreement)
are true and correct.
XXXXXXXXXXX INTERNATIONAL LTD.
By: /s/ XXXX X. XXXXXX
--------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President, General Counsel and Secretary
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Without limitation of any of the foregoing, the undersigned agrees to be bound
by the provisions of, and agrees that it is liable for the obligations under,
Section 14.4(c) the Purchase Agreement as a Seller Party and hereby expressly
assumes all such obligations.
IN WITNESS WHEREOF, THE COMMON SEAL OF XXXXXXXXXXX INTERNATIONAL LTD. WAS
AFFIXED HERETO IN THE PRESENCE OF:
/s/ XXXX X. XXXXXX
-----------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President, General Counsel and Secretary
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