99(a)(2)
SEE RIDER ANNEXED HERETO AND MADE A PART HEREOF
bank leumi USA [LOGO] UNLIMITED GUARANTY
Member FDIC
In consideration of financial accommodations given or to be given or
continued to PEC Acquisition Corporation herein called "Borrower." by BANK LEUMI
USA herein call "Bank," the undersigned irrevocably and unconditionally
guarantee to the Bank, payment when due, whether by acceleration or otherwise,
of any and all liabilities of the Borrower to the Bank, together with all
interest thereon and all attorneys' fees, costs and expenses of collection
incurred by the Bank in enforcing any of such liabilities.
The term "liabilities of the Borrower" shall include all liabilities,
direct, indirect or contingent, joint, several or independent, of the Borrower
now or hereafter existing, due or to become due to, or held or to be held by,
the Bank for its own account or as agent for another or others, whether created
directly or acquired by assignment or otherwise.(1)
The undersigned waive notice of acceptance of this guaranty and notice of
any liability to which it may apply, and waive presentment, demand of payment,
protest, notice of dishonor or nonpayment of any such liabilities, suit or
taking other action by the Bank against, and any other notice to, any party
liable thereon (including the undersigned).
The Bank may at any time and from time to time (whether or not after
revocation or termination of this guaranty) without the consent of, or notice
to, the undersigned, without incurring responsibility to the undersigned,
without impairing or releasing the obligations of the undersigned hereunder,
upon or without any terms or conditions and in whole or in part:
(1) change the manner, place or terms of payment, and/or exchange or
extend the time of payment of, renew or alter, any liability of the Borrower,
any security therefor, or any liability incurred directly or indirectly in
respect thereof, and the guaranty herein made shall apply to the liabilities of
the Borrower as so changed, extended, renewed or altered;
(2) sell, exchange, release, surrender, realize upon or otherwise deal
with in any manner and in any order any property by whomsoever at any time
pledged or mortgaged to secure, or howsoever securing, the liabilities hereby
guaranteed or any liabilities (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and/or any offset
thereagainst;
(3) exercise or refrain from exercising any rights against the Borrower or
others (including the undersigned) or otherwise act or refrain from acting;
(4) settle or compromise any liability hereby guaranteed, any security
therefor or any liability (including any of those hereunder) incurred directly
or indirectly in respect thereof or hereof, and may subordinate the payment of
all or any part thereof to the payment of any liability (whether due or not) of
the Borrower to creditors of the Borrower other than the Bank and the
undersigned; and
(5) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Borrower to the Bank regardless of what
liability or liabilities of the Borrower remain unpaid.
No failure by the Bank to file, record or otherwise perfect any lien or
security interest, nor any improper filing or recording, nor any failure by the
Bank to insure or protect any security nor any other dealing (or failure to
deal) with any security by the Bank, shall impair or release the obligations of
the undersigned hereunder.
No invalidity, irregularity or unenforceability of all or any part of the
liabilities hereby guaranteed or of any security therefor shall affect, impair
or be a defense to this guaranty, and this guaranty is a primary obligation of
the undersigned.
This guaranty is a continuing one and all liabilities to which it applies
or may apply under the terms hereof shall be conclusively presumed to have been
created in reliance hereon. As to each of the undersigned, this guaranty shall
continue until written notice of revocation signed by such undersigned, or until
written notice of the death of such undersigned (which shall be deemed a notice
of revocation hereunder) shall in each case have been actually received by the
Bank, notwithstanding a revocation by, or the death of, or complete or partial
release for any cause of, any one or more of the remainder of the undersigned,
or of the Borrower or of any one liable in any manner for the liabilities hereby
guaranteed or for the liabilities (including those hereunder) incurred directly
or indirectly in respect thereof or hereof, and notwithstanding the dissolution,
termination or increase, decrease or change in personnel of any one or more of
the undersigned which may be corporations or partnerships. Written notice as
above provided shall be the only means of revocation or termination of this
guaranty, notwithstanding the fact that for periods of time there may be no
outstanding liabilities of the Borrower. No revocation or termination hereof
shall affect in any manner the effectiveness and applicability of this guaranty,
or any rights of the Bank or the obligations of the undersigned hereunder, with
respect to (a) liabilities of the Borrower which shall have been created,
contracted, assumed or incurred prior to receipt by the Bank of written notice
of such revocation or termination, (b) all extensions, renewals or modifications
of any of the liabilities referred to in (a) above made after receipt by the
Bank of such written notice, or (c) liabilities of the Borrower which shall have
been created, contracted, assumed or incurred after receipt by the Bank of such
written notice pursuant to any contract entered into by the Bank prior to its
receipt of such notice or which are otherwise related to or connected with
liabilities of the Borrower theretofore arising or transactions theretofore
entered into.
(2)
All property of the undersigned shall be held by the Bank subject to a
lien and as security for any and all liabilities of the undersigned. The term
"property of the undersigned" shall include all property of every description,
now or hereafter in the
possession or custody of or in transit to the Bank for any purpose, including
safekeeping, collection or pledge, for account of the undersigned, or as to
which the undersigned may have any right or power. The balance of every account
of the undersigned with, and each claim of the undersigned against, the Bank
existing from time to time, shall be subject to a lien and subject to be set off
against any and all liabilities of the undersigned, and the Bank may at any time
or from time to time at its option and without notice appropriate and apply
toward the payment of any of the liabilities of the undersigned the balance of
each such account of the undersigned with, and each such claim of the
undersigned against, the Bank. The term "property of the undersigned" shall also
include any and all book-entry U.S. Treasury bills and other book-entry
securities purchased on behalf of the undersigned and maintained in an account
at the Bank, which may have a related account at a bank which is a member of the
Federal Reserve System. The undersigned authorizes the Bank to serve as its
bailee and agent with respect to the aforementioned book-entry Treasury bills
and other book-entry securities and to take such action and to execute and
deliver such documents on behalf of the undersigned as the Bank deems necessary
or desirable in order to perfect the Bank's security interest therein. The
undersigned hereby gives notice to the Bank, in the Bank's capacity as bailee
and agent, of the Banks security interest in the aforementioned book-entry
Treasury bills and other book-entry securities. The Bank may at any time and
from time to time, without notice, transfer into its own name or that of its
nominee any of the property of the undersigned.
Upon the happening of any of the following events: insolvency of the
Borrower or the undersigned, or suspension of business of the Borrower or the
undersigned, or the issuance of any warrant of attachment(3) against any of the
property of the Borrower or(4) the undersigned(5), or the making by the Borrower
or the undersigned of an assignment for the benefit of creditors, or a trustee
or receiver being appointed for the Borrower or the undersigned or for any
property of either of them, or any proceeding being commenced by or against the
Borrower or the undersigned under any bankruptcy, reorganization, arrangement of
debt, insolvency, readjustment of debt, receivership, liquidation or dissolution
law or statute(6), then and in any such event, and at any time thereafter, the
Bank may, without notice to the Borrower(7) the undersigned, make the
liabilities of the Borrower to the Bank, whether or not then due, immediately
due to and payable hereunder as to the undersigned, and the Bank shall be
entitled to enforce the obligations of the undersigned hereunder.
Upon nonpayment when due of any of the liabilities of the Borrower or the
undersigned to the Bank, the Bank may immediately or at any time or times
thereafter without demand or notice to the Borrower or the undersigned and
without advertisement, all of which are hereby expressly waived, sell, resell,
assign and deliver all or part of said "property of the undersigned" at any
Brokers' Board or Exchange, or at public or private sale, for cash, upon credit
or for future delivery, and in connection therewith may grant options. Upon each
such sale the Bank may purchase the whole or any part of such property, free
from any right of redemption, which is hereby waived and released.
In the case of each such sale, or of any proceedings to collect any
liabilities of the undersigned, the undersigned shall pay all costs and expenses
of every kind for collection, sale or delivery, including reasonable attorneys'
fees, and after deducting such costs and expenses from the proceeds of sale or
collection, the Bank may apply any residue to pay any liabilities of the
undersigned, who shall continue liable for any deficiency, with interest.
If claim is ever made upon the Bank for repayment or recovery of any
amount or amounts received by the Bank in payment or on account of any of the
liabilities of the Borrower and the Bank repays all or part of said amount by
reason of (a) any judgment, decree or order of any court or administrative body
having jurisdiction over the Bank or any of its property, or (b) any settlement
or compromise of any such claim effected by the Bank with any such claimant
(including the Borrower), then and in such event the undersigned agree that any
such judgment, decree, order, settlement or compromise shall be binding upon the
undersigned, notwithstanding any revocation hereof or the cancellation of any
note or other instrument evidencing any liability of the Borrower, and the
undersigned shall be and remain liable to the Bank hereunder for the amount so
repaid or recovered to the same extent as if such amount had never originally
been received by the Bank.
No delay on the part of the Bank in exercising any of its options, powers
or rights, or partial or single exercise thereof, shall constitute a waiver
thereof. No waiver of any of its rights hereunder, and no modifications or
amendment of this guaranty, shall be deemed to be made by the Bank unless the
same shall be in writing, duly signed on behalf of the Bank, and each such
waiver, if any, shall apply only with respect to the specific instance involved,
and shall in no way impair the rights of the Bank or the obligations of the
undersigned to the Bank in any other respect at any other time.
The term "Bank" as used throughout this instrument shall be deemed to
include the BANK LEUMI USA, and all its agencies, branches and departments
wherever located.
Whenever in this instrument the words "attorneys' fees" are used, such
fees shall be the reasonable value of the services of the attorneys. The term
"Borrower" as used throughout this instrument shall be deemed to include any (a)
successor partnership or partnerships if the Borrower is a partnership, and (b)
corporation or corporations which succeed to all or substantially all of the
assets or business of the Borrower by merger, consolidation or sale of assets if
the Borrower is a corporation.
This guaranty and the rights and obligations of the Bank and of the
undersigned hereunder shall be governed and construed in accordance with the
laws of the State of New York; and this guaranty is binding upon the
undersigned, his, their or its executors, administrators, successors, or
assigns, and shall inure to the benefit of the Bank, its successors or assigns.
The undersigned hereby irrevocably submits to the jurisdiction of any New York
State or Federal Court located in New York City over any action or proceeding
arising out of any dispute between the undersigned and the Bank, and the
undersigned further irrevocably consents to the service of any process in any
such action or proceeding by the mailing of a copy of such process to the
undersigned at the address set forth below.
The undersigned, if more than one, shall be jointly and severally liable
hereunder, and the term "undersigned" wherever used herein shall mean the
undersigned or any one or more of them. Any one signing this guaranty shall be
bound hereby, whether or not any one else signs this guaranty at any time.
Dated: New York, New York
the 26th day of October, 1999
(Individuals sign below)
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(Address)
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(Address)
(Corporation or Partnerships sign below)
Discount Investment Corporation Ltd.
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(Name of Corporation or Partnership)
By: /s/ Yoram Turbowicz
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Yoram Turbowicz (Title)
President and CEO
By: /s/ Joseph Boock
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Joseph Boock (Title)
Vice President - Finance
14 Beth Hashoeva Lane
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(Address) Tel Aviv, Israel 65814
Signature(s) Guaranteed
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(Name of Bank)
By: /s/ Shlomo Cohen
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(Authorized Signature)
Shlomo Cohen, Advocate
License No. 7137
14 Beth Hashoeva Lane
Tel Aviv, Israel
RIDER TO UNLIMITED GUARANTY OF
DISCOUNT INVESTMENT CORPORATION DATED OCTOBER 26, 1999
The following text shall be inserted in the Unlimited Guaranty of Discount
Investment Corporation Ltd., dated October 26, 1999, at the similarly numbered
place in such guaranty:
(1) pursuant to promissory note of Borrower in the original principal amount
of $125,000,000 executed by the Borrower in favor of the Bank
on October 18, 1999.
(2) You agree that all payments to be made to the Bank will be made free and
clear of, and without deduction for or on account of, any present or
future "Foreign Taxes" (as defined below). You further agree that, if any
Foreign Taxes are required to be withheld from any amounts payable to the
Bank, the Bank may, in its sole and absolute discretion increase the
amounts payable by you to the Bank to the extent necessary to yield to the
Bank (after payment of all Foreign Taxes) the full amounts which the Bank
would have received had the payments not been subject to Foreign Taxes.
"Foreign Taxes" means any income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions, withholdings or restrictions or
conditions of any nature whatsoever now or hereafter imposed, levied,
collected, withheld or assessed by any country or government (or by a
political subdivision or taxing authority thereof) other than the United
States of America or any political subdivision or taxing authority thereof
with respect to the payments.
(3) in the aggregate amount in excess of $1,000,000
(4) in the aggregate amount in excess of $5,000,000 against any of the
property of
(5) , which warrant of attachment shall not be released, discharged,
dismissed, stayed or fully bonded for a period of 30 days or more after
its issue,
(6) (exclusive of the merger of the Borrower into PEC Israel Economic
Corporation, a Maine Corporation) and, with respect to the commencement of
any such proceedings without the consent of the Borrower or the
undersigned, such proceedings shall continue undischarged for a period of
60 days,
(7) but with notice to
DISCOUNT INVESTMENT
CORPORATION, LTD
By: /s/ Yoram Turbowicz