GUARANTY AGREEMENT
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THIS GUARANTY AGREEMENT ("Guaranty") is made as of the 10th day of
February, 2003, by WOORI BANK, a Korean banking institution ("Guarantor"), in
favor of NATIONAL PENN BANCSHARES, INC., a Pennsylvania business corporation
("Seller"), and PANASIA BANK, NATIONAL ASSOCIATION, a national banking
association ("Panasia").
BACKGROUND
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1. Seller owns directly all of the issued and outstanding shares (the
"Shares") of capital stock of Panasia.
2. Seller proposes to sell the Shares to Woori America Bank ("Buyer"),
and Buyer proposes to buy the Shares from Seller, on the terms and conditions
set forth in that certain Agreement between Seller and Buyer dated as of
February 10, 2003 ("Agreement").
3. Buyer is a wholly-owned subsidiary of Guarantor. Guarantor has a
substantial, material and beneficial interest in the sale of the Shares by
Seller to Buyer, and it is understood that the purpose of this Guaranty is to
induce the sale of the Shares by Seller to Buyer.
AGREEMENT
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NOW THEREFORE, in consideration of the sale of the Shares by Seller to
Buyer, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Guarantor, intending to be legally
bound hereby, agrees as follows:
1. Incorporation of Background. The Background section of this Guaranty
is incorporated herein by reference and the matters set forth therein are true
and correct.
2. Obligation. Guarantor hereby irrevocably and unconditionally
assures, covenants, warrants and guarantees to Seller and Panasia that it will
make a capital contribution to Buyer as provided for in Section 5.05 of the
Agreement and file all necessary applications with the regulatory authorities in
the United States and the Republic of Korea for Buyer to consummate the purchase
of the Shares from Seller.
3. Unconditional Liability. Notwithstanding anything to the contrary
contained in this Guaranty, the liability of Guarantor hereunder is absolute and
unconditional and shall not be affected in any way by reason of (a) any failure
by Seller or Panasia to
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retain or preserve any rights against any person or entity, including without
limitation Buyer, or in any property of any nature whatsoever, or (b) the lack
of prior enforcement of any right against any person or entity, including
without limitation Buyer, or in any property of any nature whatsoever. To the
extent permitted by law, Guarantor hereby waives any right to require, and the
benefit of all laws now or hereafter in effect giving Guarantor the right to
require, any such prior enforcement as aforesaid. Guarantor hereby agrees that
any delay in enforcing or failure to enforce any such rights, or any delay in
making demand on Guarantor for performance or payment of Guarantor's obligation
hereunder shall in no way affect the liability of Guarantor hereunder.
4. Waivers. Guarantor hereby waives all notices of any nature
whatsoever with respect to this Guaranty and Buyer's liabilities to Seller or
Panasia, including without limitation notice of the acceptance hereof and
reliance hereon. Guarantor hereby waives the benefit of any and all laws now or
hereafter in effect in any way limiting or restricting the liability of
Guarantor hereunder including without limitation all defenses whatsoever to
Guarantor's liability hereunder.
5. Binding Agreement; Assignment. This Guaranty shall inure to the
benefit of Seller and Panasia, and their respective successors and assigns, and
shall be binding upon Guarantor and its successors and assigns. Guarantor may
not assign this Guaranty without the prior written consent of both Seller and
Panasia.
6. Notices. All notices or other communications hereunder shall be in
writing and shall be deemed given upon delivery if delivered personally, two
business days after mailing if mailed by prepaid registered or certified mail,
return receipt requested, or upon confirmation of good transmission if sent by
telecopy, addressed as follows:
(a) If to Seller and Panasia, to:
National Penn Bancshares, Inc.
Panasia Bank, N.A.
Philadelphia and Reading Avenues
P.O. Box 547
Boyertown, Pennsylvania 19512-0547 U.S.A.
Attention: Wayne R. Weidner
Chairman, President and CEO
National Penn Bancshares, Inc.
Telecopy No.: 610-369-6349
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with a copy to:
H. Anderson Ellsworth
Jay W. Waldman
Ellsworth, Carlton, Mixell & Waldman, P.C.
1105 Berkshire Boulevard
Suite 320
Wyomissing, Pennsylvania 19610
Telecopy No.: 610-371-9510
(b) If to Guarantor, to:
Woori Bank
c/o Woori America Bank
1250 Broadway
New York, New York 10001
Attention: Jay Seung Yoo
President and CEO
Telecopy No.: 212-736-5929
with a copy to:
Nelson K. Ahn
Sidley Austin Brown & Wood LLP
787 Seventh Avenue
New York, New York 10019
Telecopy No.: 212-839-5599
7. Captions. The captions contained in this Guaranty are for reference
purposes only and are not part of this Guaranty.
8. Severability. If any provision of this Guaranty or the application
thereof to any circumstance shall be invalid or unenforceable to any extent, the
remainder of this Guaranty and the application of such provisions to other
circumstances shall not be affected thereby and shall be enforced to the
greatest extent permitted by law.
9. Governing Law. This Guaranty shall be governed by and construed in
accordance with the domestic internal law of the State of New York, without
regard to conflicts of laws principles.
10. Specific Performance; Other Remedies. Guarantor agrees that
irreparable damage would occur in the event that the provisions contained in
this Guaranty were not performed in accordance with its specific terms or were
otherwise breached. Guarantor accordingly agrees that Seller and Panasia shall
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be entitled to seek an injunction or injunctions to prevent breaches of this
Guaranty and to enforce specifically the terms and provisions of this Guaranty
in any court of the United States or any state having jurisdiction, including
those courts specifically identified in Section 11 of this Guaranty, this being
in addition to any other rights or remedies available to Seller or Panasia at
law or in equity.
11. Consent to Jurisdiction; Service of Process. Guarantor irrevocably
and unconditionally (a) agrees that any legal action or suit arising out of this
Guaranty shall be brought and adjudicated in the Court of Common Pleas of Berks
County, Pennsylvania, U.S.A., or in the United States District Court for the
Eastern District of Pennsylvania, U.S.A.; (b) submits to the exclusive
jurisdiction of either Court for the purpose of any such legal action or suit;
(c) waives and agrees not to assert by way of motion, as a defense or otherwise
in any such legal action or suit, any claim that such party is not subject to
the jurisdiction of the said Court of Common Pleas or the said District Court,
that such legal action or suit is brought in an inconvenient forum, or that the
venue of such legal action or suit is improper; and (d) agrees that process in
any such legal action or suit may be served by ordinary mail addressed to the
last known address of Guarantor, anywhere in the world.
12. Waiver of Jury Trial. Guarantor irrevocably and unconditionally
agrees that any legal action or suit arising out of this Guaranty shall be tried
only by a court and judge and not by a jury. GUARANTOR HEREBY EXPRESSLY WAIVES
ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH LEGAL ACTION OR SUIT.
IN WITNESS WHEREOF, WOORI BANK, as guarantor, has caused this Guaranty
Agreement to be executed by its duly authorized officers as of the day and year
first above written.
WOORI BANK
(Corporate Seal) By:/s/ Hyun Jin Jung
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Name: Hyun Jin Jung
Title: Head of Int'l Banking Group
Attest:/s/ Ki Hoe Lee
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Name: Ki Hoe Lee
Title: Deputy General Manager/
Int'l Banking Group
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