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Exhibit 4.21
GUARANTY
December 20, 2000
WHEREAS, STATIA MARINE, INC., a Cayman Islands exempted company, having
an office at X.X. Xxx 000, Xxxxxx Xxxxx, Xxxxx Church Street, Xxxxxx Town, Grand
Cayman, Cayman Islands, British West Indies (the "BORROWER"), has applied to
TRANSAMERICA EQUIPMENT FINANCIAL SERVICES CORPORATION, a Delaware corporation
having an office at Riverway II, West Office Tower, 0000 Xxxx Xxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000 ("LENDER"), for a loan in the principal sum of Seven
Million and no/100 Dollars ($7,000,000) (the "LOAN"), which Loan will be
evidenced by a promissory note (the "Note") dated December 20, 2000, made and
subscribed by the Borrower in the original principal sum of Seven Million and
no/100 Dollars ($7,000,000), secured and advanced pursuant to a Loan Agreement
dated December 20, 2000 by and between the Borrower and the Lender (the "Loan
Agreement") Unless otherwise defined herein, capitalized terms used herein shall
have the meanings ascribed to them in the Loan Agreement;
WHEREAS, Lender is willing to make the Loan to the Borrower only if the
Loan is fully and absolutely guaranteed by STATIA TERMINALS GROUP N.V., a
limited liability company organized and existing under the laws of the
Netherlands Antilles (the "GUARANTOR"), all in accordance with the terms and
conditions of this Guaranty (this "GUARANTY");
NOW, THEREFORE, in consideration of the collateral and other good and
valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, and in order to induce Lender to make the Loan to the Borrower,
the Guarantor hereby acknowledges, agrees and confirms that all of the above
recitals are true, correct and complete and hereby covenants and agrees with
Lender as follows:
SECTION 1. DEFINITIONS. For all purposes of this Guaranty, except as
otherwise expressly provided in this Section 1, the terms defined in this
Section 1 shall have the meanings assigned to such terms as set forth below and
shall include the plural as well as the singular:
"AFFILIATE" means any Person (1) which directly or indirectly controls,
or is controlled by, or is under common control with Guarantor or a
Subsidiary of Guarantor; (2) which directly or indirectly beneficially
owns or holds five percent (5%) or more of any class of voting stock of
Guarantor or any Subsidiary of Guarantor; or (3) five percent (5%) or
more of the voting stock of which is directly or indirectly
beneficially owned or held by Guarantor or a Subsidiary of Guarantor.
The term "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies
of a Person, whether through the ownership of voting securities, by
contract, or otherwise.
"APPLICABLE LAW" means the laws of the State of Illinois (or any other
jurisdiction whose laws are mandatorily applicable notwithstanding the
parties' choice of Illinois law) or the laws of the United States of
America, whichever laws allow the greater interest, as such laws now
exist or may be changed or amended or come into effect in the future.
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"ASSIGNMENT OF CHARTER" means that certain Assignment of Bareboat
Charter Agreement dated as of December 20, 2000, executed by Borrower
in favor of Lender assigning all of Borrower's rights under the Charter
Agreement.
"BORROWER" means Statia Marine, Inc., an exempted company organized and
existing under the laws of the Cayman Islands, British West Indies,
together with its successors and assigns.
"CAPITAL LEASES" means, as applied to any Person, any lease of any
Property by such Person as lessee which would, in accordance with GAAP,
be required to be classified and accounted for as a capital lease on
the balance sheet of such Person.
"CHARTER AGREEMENT" means that certain Bareboat Charter Party regarding
the Vessel dated as of December 20, 2000 by and between Statia
Terminals N.V., as Charterer and Borrower, as the same may be modified,
amended or supplemented from time to time.
"CHARTERER" means Statia Terminals N.V., a corporation organized and
existing under the laws of the Netherlands Antilles.
"COLLATERAL" means, collectively, the Vessel, all of Borrower's
property and interests encumbered by the Assignment of Charter and the
Assignment of Insurance from time to time during the term of this
Agreement, and all substitutions and replacements therefor. It is the
intent of Borrower and Lender that the Collateral shall secure all of
the Obligations.
"DEBT SERVICE COVERAGE RATIO" shall mean, for any fiscal period, the
ratio of EBITDA to the sum of (a) Interest Expense accrued during such
period, and (b) scheduled payments of principal with respect to Funded
Debt during such period.
"EBIT" shall mean, for any period, Net Income for such period before
Interest Expense and provision for income taxes for such period and
without giving effect (i) to any extraordinary gains or losses, (ii) to
any gains or losses from sales of assets other than from sales of
inventory sold in the ordinary course of business, and (iii) to any
non-cash gains or losses.
"EBITDA" shall mean, for any period, EBIT for such period, adjusted by
adding thereto the amount of all amortization of intangibles and
depreciation that were deducted in determining EBIT for such period.
"FUNDED DEBT" shall mean, without duplication, all indebtedness for
borrowed money evidenced by notes, bonds, debentures, or similar
evidences of indebtedness and specifically including capital lease
obligations, long-term debt, current maturities of long-term debt,
revolving credit and short-term debt.
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"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" OR "GAAP" means those
accounting principles as in effect in the United States of America on
the date of, and consistent with those followed in the preparation of,
the financial statements referred to in Section 4 hereof.
"GUARANTOR" means Statia Terminals Group N.V., a limited liability
company organized and existing under the laws of the Netherlands
Antilles, standing alone and not consolidated with any of its
Subsidiaries all as more fully presented in the financial statements of
Guarantor which are attached to the Loan Agreement as EXHIBIT "A".
"GUARANTY" means this Guaranty dated December 20, 2000, executed by
Guarantor in favor of the Lender.
"INDEBTEDNESS" means all items of indebtedness which, in accordance
with Generally Accepted Accounting Principles, would be deemed a
liability of a Person as of the date as of which such indebtedness is
to be determined, and shall also include all indebtedness and
liabilities of others assumed or guaranteed by such Person or in
respect of which such Person is secondarily or contingently liable,
whether by reason of any agreement to acquire such indebtedness, to
supply or advance sums, or otherwise. Without limiting the scope of the
foregoing, such term shall include (a) all obligations for borrowed
money, (b) all obligations evidenced by bonds, debentures, notes or
other similar instruments, (c) all obligations to pay the deferred
purchase price of property or services, except trade accounts payable
arising in the ordinary course of business, (d) all lease obligations
which are required to be capitalized for financial reporting purposes
in accordance with GAAP, (e) all debts secured by any mortgage, lien,
pledge, attachment, charge, or other security interest or encumbrance
of any kind in respect of any property or upon the income or profits
therefrom, whether or not such debt is assumed by the party granting
such security, and (f) all debt of third persons guaranteed by a party.
"INTEREST EXPENSE" means, with respect to the Guarantor and its
Subsidiaries for any period, the total interest expense determined on a
fully consolidated basis, net of any interest income for such period
(including any income received in connection with any hedging
obligations in respect of interest rates during such period, but other
than interest income earned on any restricted cash until such time as
the payment of such interest ceases to be restricted, listed on such
Person's balance sheet during such period) whether paid or accrued
(including interest attributable to (a) obligations which have been or
should be recorded as Capital Leases in accordance with GAAP, and (b)
all commissions, discounts and other fees and charges owed with respect
to letters of credit and bankers' acceptance financing and net costs
under any hedging obligations, all as determined in accordance with
GAAP).
"LENDER" means Transamerica Equipment Financial Services Corporation, a
Delaware corporation, together with its successors and assigns.
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"LIEN" means any preferred ship or other mortgage, deed of trust,
pledge, security interest, hypothecation, assignment, deposit
arrangements, encumbrance, lien (statutory or other), or preference,
priority, or other security agreement or preferential arrangement,
charge, or encumbrance of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention
agreement), any financing lease having substantially the same economic
effect as any of the foregoing, and the filing of any financing
statement under the Uniform Commercial Code, the Ship Mortgage Act or
comparable law of any jurisdiction (including, without limitation, the
Republic of Vanuatu or the Netherlands Antilles) to evidence any of the
foregoing, but excluding any Permitted Liens.
"LOAN DOCUMENTS" means, collectively, this Agreement, the Note, the
Guaranty, the Security Documents, including all exhibits and schedules
to such documents.
"MATERIAL ADVERSE CHANGE" means, with respect to any Person, a material
adverse change in the business, prospects, operations, results of
operations, assets, liabilities or condition (financial or otherwise)
of such Person taken as a whole, which has a material impairment of the
ability of either Borrower or Guarantor to repay or perform the
Obligations.
"MATERIAL ADVERSE EFFECT" means, with respect to any Person, a material
adverse effect on the business, prospects, operations, results of
operations, assets, liabilities or condition (financial or otherwise)
of such Person taken as a whole, which has a material impairment of the
ability of either Borrower or Guarantor to repay or perform the
Obligations.
"NET INCOME" means, with respect to the Guarantor and its Subsidiaries
for any period, net income after taxes as determined on a fully
consolidated basis for such period in accordance with GAAP.
"NET WORTH" means, at any date, for the Guarantor determined on a fully
consolidated basis, the total shareholders' equity (including capital
stock, additional paid-in capital and retained earnings, after
deducting treasury stock) as determined in accordance with GAAP.
"NOTE" means the promissory note made and subscribed by the Borrower to
the order of Lender dated December 20, 2000 in the original principal
sum of Seven Million and 00/100 Dollars ($7,000,000.00), together with
any amendments thereto and renewals, replacements, refinancings and
consolidations thereof.
"OBLIGATIONS" means all indebtedness, obligations and liabilities of
the Borrower under the Loan Agreement, the Note or any of the other
Loan Documents, whether on account of principal, interest, indemnities,
fees (including, without limitation, attorneys' fees, collection fees
and all other professionals' fees), costs, expenses, taxes or
otherwise.
"OTHER OBLIGATIONS" has the meaning ascribed to such term in Section
11(a) hereof.
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"PERMITTED LIENS" means:
(a) Liens for taxes, assessments or other charges the payment
of which is not past due or the validity of which is being contested,
with notice to Lender, in good faith and by appropriate legal
proceedings which stay the collection of such taxes, assessments or
other charges and the enforcement of such Lien, provided adequate
reserves have been established on the books of Borrower;
(b) Liens of carriers and warehousemen and similar liens
incurred in the ordinary course of business for sums that are not past
due or the validity of which is being contested in good faith,
including, but not limited to, liens for crew's wages and salvage,
including contract salvage and liens for general average, provided
adequate reserves have been established on the books of the Borrower;
(c) Liens incurred in ordinary course of business in
connection with workers' compensation, unemployment insurance or other
forms of insurance or benefits;
(d) Any attachment or judgment Lien, unless the judgment it
secures shall not, within thirty (30) days after the entry thereof,
have been discharged or execution thereof stayed pending appeal, or
shall not have been discharged within thirty (30) days after expiration
of any such stay; and
(e) Liens required by the terms of this Agreement.
"PERSON" means any individual, partnership, joint venture, association,
joint stock company, trust, unincorporated organization, unaffiliated
corporation or any government or any agency or political subdivision
thereof.
"PREFERRED SHIP MORTGAGE" shall mean that certain First Preferred Ship
Mortgage of even date herewith by Borrower in favor of Lender
encumbering the Vessels, to be recorded with the Office of the Deputy
Commissioner of Maritime Affairs of the Republic of Vanuatu, as
amended, supplemented and modified from time to time in accordance with
the terms thereof.
"PROPERTY" of any Person means property or assets (whether real,
personal, or mixed, tangible or intangible) of such Person.
"SECURITY DOCUMENTS" means, collectively, the Charter Agreement, the
Preferred Ship Mortgage, the Assignment of Charter, the Assignment of
Insurance, the Acknowledgment and all other security agreements, pledge
agreements, mortgages, deeds of trust, collateral assignments, pledge
agreements, financing statements, insurance policies, vessel surveys,
appraisals and any other agreements or certificates now or hereafter
delivered to evidence, secure or guarantee the payment and/or
performance of the Obligations.
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"SUBSIDIARY" means, as to any Person, a corporation of which shares of
stock having ordinary voting power (other than stock having such power
only by reason of the happening of a contingency) to elect a majority
of the board of directors or other manager of such corporation are at
the time owned, or the management of which is otherwise controlled,
directly, or indirectly, through one or more intermediaries, or both,
by such Person.
SECTION 2. GUARANTY. The Guarantor, jointly and severally, absolutely,
irrevocably and unconditionally, guarantees to Lender the prompt payment and
performance of all Obligations, now or hereafter existing under the Loan
Agreement, notwithstanding that advances of the Loan have been, or may be, made
while a default exists under the Loan Documents or the Borrower is otherwise not
in compliance with the obligations set forth in the Loan Agreement.
SECTION 3. CONTINUING GUARANTY; TRANSFER OF OBLIGATIONS. This Guaranty
is a continuing guaranty and shall (i) remain in full force and effect until
payment in full of the Obligations and all other amounts payable under this
Guaranty, (ii) be binding upon the Guarantor and its successors and assigns, and
(iii) inure to the benefit of and be enforceable by the Lender and its
successors, transferees, and assigns. Without limiting the generality of the
foregoing clause (iii), the Lender may assign or otherwise transfer the right to
collect the Obligations to any other person or entity, and such other person or
entity shall thereupon become vested with all the rights in respect thereof
granted to the Lender herein or otherwise.
SECTION 4. REPRESENTATIONS AND WARRANTIES. The Guarantor hereby
represents and warrants as follows:
(a) DUE ORGANIZATION, ETC. The Guarantor is a limited
liability company duly organized, validly existing and in good standing
under the laws of the Netherlands Antilles and has all requisite power
and authority to own or lease and operate its properties and to carry
on its business as now conducted and as proposed to be conducted. The
Guarantor is duly qualified or licensed to do business as a foreign
corporation or other entity, in good standing in all jurisdictions in
which it owns or leases property or in which the conduct of its
business requires it to so qualify or be licensed, except for such
jurisdictions where the failure to so qualify or be licensed would not
have a Material Adverse Effect on the Guarantor or otherwise on the
ability of the Guarantor to carry out its obligations under this
Guaranty.
(b) DUE AUTHORIZATION AND EXECUTION, ETC. The execution,
delivery and performance (including the incurrence of the Obligations
hereunder) by the Guarantor of this Guaranty are within the Guarantor's
powers, have been duly authorized by all necessary action and do not
and will not (i) require any consent or approval of any shareholder of
the Guarantor, (ii) contravene (A) the Guarantor's Articles of
Incorporation, or (B) any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or any contractual
restriction binding on or affecting the Guarantor or any of its
properties, and (iii) result in or require the creation or imposition
of any mortgage, deed of trust, pledge, lien, security interest or
other charge or encumbrance of any nature (other than pursuant hereto)
upon or with respect to any of the Guarantor's properties. The
Guarantor is not in default under any such law, rule, regulation,
order, writ, judgment, injunction, decree, determination or award or
any such contractual restriction, which default would have a Material
Adverse Effect on the
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Guarantor or otherwise on the ability of the Guarantor to carry out its
obligations under this Guaranty.
(c) GOVERNMENT CONSENTS. No authorization, consent, 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 or performance by the Guarantor of this Guaranty.
(d) LEGAL, VALID AND BINDING NATURE. This Guaranty is the
legal, valid and binding obligation of the Guarantor enforceable
against the Guarantor in accordance with its terms.
(e) SOLVENCY. The fair value of the property and investments
of the Guarantor exceeds the total amount of liabilities (including,
without limitation, contingent liabilities) of the Guarantor; the
present fair saleable value of the assets of the Guarantor exceeds the
amount that will be required to pay the probable liability of the
Guarantor on its existing debts as they become absolute and matured;
the Guarantor is able to realize upon its assets and pay its debts and
other liabilities, contingent obligations and other commitments as they
mature in the normal course of business; the Guarantor does not intend
to, and does not believe that it will, incur debts or liabilities
beyond the Guarantor's ability to pay as such debts and liabilities
mature; and the Guarantor is not engaged in business or a transaction,
and is not about to engage in business or a transaction, for which the
property remaining with the Guarantor would constitute unreasonably
small capital after giving due consideration to the prevailing practice
in the industry in which the Guarantor is engaged. In computing the
amount of contingent liabilities at any time, it is intended that such
liabilities will be computed at the amount which, in light of all facts
and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
(f) ABSENCE OF LITIGATION. There are no actions, suits,
investigations, litigation or proceedings pending or, to the knowledge
of the Guarantor, threatened against or affecting the Guarantor or any
of its subsidiaries (whether partnerships or corporations) or the
properties of the Guarantor or any such subsidiary before any court,
arbitrator or governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, or which purports to
affect any part of the transactions contemplated hereby or by the
Agreements or the legality, validity or enforceability of this
Guaranty.
(g) ABSENCE OF LIENS AND ENCUMBRANCES. Except for Permitted
Liens and for distributions payable pursuant to the Articles of
Incorporation of Guarantor, there are no mortgages, deeds of trust,
pledges, liens, security interests or charges or encumbrances of any
nature whatsoever on any properties or assets of Guarantor, except
liens incurred in the ordinary course of its business.
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(h) PAYMENT OF TAXES. The Guarantor has filed all tax returns
(federal, state, local and foreign) required to be filed and paid all
taxes shown thereon to be due, including interest and penalties, except
for such taxes as are being contested in good faith and by proper
proceedings and with respect to which appropriate reserves are being
maintained by the Guarantor, or except where the failure to file such
returns or pay such taxes would not have a Material Adverse Effect on
the Guarantor or otherwise on the ability of the Guarantor to carry out
its obligations under this Guaranty.
SECTION 5. INDEMNIFICATION OF LENDER. Guarantor agrees to pay all costs
and expenses in connection with the preparation, execution, delivery and
enforcement of this Guaranty and the other Loan Documents or any other documents
to be delivered hereunder, including, without limitation, the reasonable fees
and out-of-pocket expenses of counsel for Lender with respect thereto and with
respect to advising Lender as to its rights and responsibilities under this
Guaranty. Guarantor agrees to pay on demand all losses, costs and expenses, if
any (including reasonable counsel fees and expenses), incurred in connection
with the preservation of any rights of Lender under, or the enforcement of, or
legal advice in respect of, the rights or responsibilities of Lender under this
Guaranty, the Note, the Security Documents, and any other documents delivered
hereunder including, without limitation, reasonable losses, costs and expenses
sustained by Lender as a result of any failure by Guarantor to perform or
observe its obligations contained herein or in any of the Note or any other
document related thereto. Guarantor further agrees to indemnify and hold
harmless Lender from and against any and all damages, losses, liabilities, costs
and expenses resulting from, related to or connected with this Guaranty, the
Note, the Security Documents and any document or instrument delivered in
connection herewith or the transactions contemplated hereby.
All sums expended by Lender shall be payable on demand and, until
reimbursed by the Borrower or by the Guarantor pursuant hereto, shall bear
interest at the default interest rate as set forth in the Note.
SECTION 6. FINANCIAL INFORMATION. The Guarantor hereby represents and
warrants that all financial statements of the Guarantor heretofore delivered to
Lender by or on behalf of Guarantor are true and correct in all material
respects and fairly present the financial condition of Guarantor as of the
respective dates thereof, and no Material Adverse Change has occurred in the
financial conditions reflected therein since the respective dates thereof which
would have a Material Adverse Effect on Guarantor's ability to repay or perform
any of the Obligations pursuant to this Guaranty or any of the other Loan
Documents. In addition, the Guarantor covenants that so long as any portion of
the Obligations remains outstanding and unpaid, Guarantor will, unless otherwise
consented to in writing by Lender:
(a) furnish to Lender, as soon as available, but in any event
within one hundred twenty (120) days next following the end of each
fiscal year of the Guarantor, audited annual financial statements of
the Guarantor for such fiscal year, prepared in accordance with GAAP,
consisting of both consolidated and unconsolidated balance sheets,
income statements and statements of cash flows and shareholders equity
set forth on a comparative basis with prior year for the Guarantor and
its consolidated Subsidiaries for such year, reported on by independent
certified public accountants without an adverse qualification;
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(b) furnish to Lender, as soon as available, but not later
than sixty (60) days after the end of each fiscal quarter in any fiscal
year of the Guarantor, unaudited financial statements of the Guarantor
for such fiscal quarter, prepared in accordance with GAAP, consisting
of both consolidated and unconsolidated balance sheets, income
statements, statements of cash flow and shareholders' equity as at the
end of such quarter and for the period from the beginning of such
fiscal year to the end of such quarter, set forth on a comparative
basis with the prior year;
(c) furnish to Lender, within fifteen (15) days after request,
such further detailed financial and other information (including, but
not limited to, financial statements) as may be requested by Lender
with respect to Guarantor, or any Affiliate of, or entity controlled
by, the Guarantor, as of a date not earlier than that specified by
Lender in such request, together with a Certification with respect
thereto; provided, however, the Guarantor's obligation to provide
information with respect to any Affiliate of, or entity controlled by
the Guarantor, shall only be required to the extent such information is
reasonably available to Guarantor.
SECTION 7. COMPLIANCE CERTIFICATE. In connection with each delivery of
the financial statements required pursuant to this Guaranty, Guarantor will
deliver to Lender a certificate, signed by the chief financial officer of
Guarantor, stating that (i) said officer has reviewed the aforesaid financial
statements and the provisions of this Agreement; (ii) such financial statements
are accurate and complete; (iii) there is no condition or event at the end of
such fiscal year or fiscal quarter or at the time of such certificate which
constitutes an Event of Default or specifying the nature and period of existence
of any such condition or event; at the end of such fiscal year or fiscal
quarter, all in reasonable detail; (iv) demonstrating, in reasonable detail,
compliance during and at the end of such accounting period with the provisions
of Section 8 of this Guaranty, and (v) said officer has reviewed the terms of
this Guaranty and the other Loan Documents and has made or caused to be made
under his or her supervision, a review in reasonable detail of the transactions
and condition of the Guarantor and its respective Subsidiaries during the
accounting period covered by such financial statements and demonstrating, in
reasonable detail, compliance during and at the end of such accounting period
with the provisions set forth in this Guaranty. The aforesaid certificate shall
include calculations showing compliance with any financial covenants together
with a comparison of actual and required results.
SECTION 8. NEGATIVE COVENANTS. So long as any of the Obligations remain
unpaid, the Guarantor agrees to comply with the following covenants:
(a) DEBT SERVICE COVERAGE RATIO. The Guarantor shall not
permit its Debt Service Coverage Ratio (on a fully consolidated basis)
as of the last day of any fiscal quarter to be less than 1.50.
(b) MINIMUM NET WORTH. Guarantor shall not permit its Net
Worth (on a fully consolidated basis) as of the last day of any fiscal
quarter to less than $70,000,000.
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SECTION 9. SECURITY INTEREST IN MONEYS, SECURITIES, ETC. In addition to
any right available to Lender under Applicable Law or any other agreement, the
Guarantor hereby gives to Lender a continuing lien on, security interest in and
right of set-off against all moneys, securities and other property of the
Guarantor and the proceeds thereof, now on deposit or now or hereafter
delivered, remaining with or in transit in any manner to Lender, its
correspondents, participants or its agents from or for the Guarantor, whether
for safekeeping, custody, pledge, transmission, collection or otherwise or
coming into possession of Lender in any way, and also, any balance of any
deposit account and credits of the Guarantor with, and any and all claims of the
Guarantor against, Lender at any time existing, as collateral security for the
payment of the Obligations and all of the other obligations of the Guarantor
under this Guaranty, including fees, contracted with or acquired by Lender,
whether joint, several, absolute, contingent, secured, matured or unmatured,
hereby authorizing Lender at any time or times, without prior notice, to apply
such balances, credits or claims, or any part thereof, to such Obligations in
such amounts as it may select, whether contingent, unmatured or otherwise and
whether any collateral security therefor is deemed adequate or not. The
collateral security described herein shall be in addition to any collateral
security described in any separate agreement executed by the Guarantor. Lender,
in addition to any right available to it under applicable law or any other
agreement, shall have the right, at its option, to immediately set-off against
any Obligations all monies owed by Lender in any capacity to the Guarantor,
whether or not due, and Lender shall, at its option, be deemed to have exercised
such right to set-off and to have made a charge against any such money
immediately upon the occurrence of any events of default set forth below, even
though such charge is made or entered on the books of Lender subsequent to those
events.
SECTION 10. APPLICATION OF PAYMENTS. Payments received by Lender
pursuant to the Note or any other Loan Documents shall be applied in the
following manner: FIRST, to the payment of all expenses, charges, costs and fees
incurred by or payable to Lender and for which Borrower or Guarantor is
obligated pursuant to the terms of the Note or any of the other Loan Documents;
SECOND, to the payment of all interest accrued to the date of such payment; and
THIRD, to the payment of principal in the order of maturity. Notwithstanding
anything to the contrary in any of the Loan Documents, after the occurrence and
during the continuation of an Event of Default, all amounts received by Lender
from Borrower, Guarantor or any other party shall be applied in such order as
Lender, in its sole and uncontrolled discretion, may elect.
SECTION 11. MODIFICATIONS AND OTHER ACTIONS PERMITTED. The Guarantor
hereby expressly agrees that this Guaranty is independent of, and in addition
to, all collateral granted, pledged or assigned under the Security Documents,
and Guarantor hereby consents that from time to time, before or after any
default by the Borrower, with or without further notice to or assent from
Guarantor:
(a) any security at any time held by or available to Lender
for any of the Obligations, or any security at any time held by or
available to Lender for any obligation of any other person or party
primarily, secondarily or otherwise liable for all or any portion of
the Obligations, any other liabilities and/or any other obligations of
the Borrower or any other person or party, other than Lender, under any
of the Loan Documents ("Other Obligations"), including any guarantor of
the Obligations and/or any of such Other Obligations, may be
accelerated, settled, exchanged, surrendered or released and Lender may
fail to set-off and may release, in whole or in part, any balance of
any deposit account or credit on its books in favor of the Borrower, or
of any such other Person or party;
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(b) any obligation of the Borrower, or of any such other
person or party, may be changed, altered, renewed, extended, continued,
accelerated, surrendered, compromised, settled, waived or released in
whole or in part, or any default with respect thereto waived;
(c) Lender may extend further credit in any manner whatsoever
to the Borrower, and generally deal with the Borrower or any of the
above-mentioned security, deposit account, credit on its books or other
person or party as Lender may see fit; and
(d) Guarantor shall remain bound in all respects under this
Guaranty, without any loss of any rights by Lender and without
affecting the liability of Guarantor, notwithstanding any such
exchange, surrender, release, change, alteration, renewal, extension,
continuance, compromise, waiver, inaction, extension of further credit
or other dealing.
SECTION 12. WAIVERS. The Guarantor hereby waives:
(a) notice of acceptance of this Guaranty and of the making of
the Loan or any advance thereof by Lender to the Borrower;
(b) presentment and demand for payment of the Obligations or
any portion thereof;
(c) protest and notice of dishonor or default to the Guarantor
or to any other person or party with respect to the Obligations or any
portion thereof;
(d) all other notices to which Guarantor might otherwise be
entitled;
(e) any demand under this Guaranty; and
(f) any duty on the part of Lender to disclose to Guarantor
any facts Lender may now or hereafter know about Borrower or the
Collateral, regardless of whether Lender has reason to believe that any
such facts materially increase the risk beyond that which Guarantor
intends to assume or has reason to believe that such facts are unknown
to Guarantor or has a reasonable opportunity to communicate such facts
to Guarantor, it being understood and agreed that Guarantor is fully
responsible for being and keeping informed of the financial condition
of Borrower, of the condition of the Collateral and of any and all
circumstances bearing on the risk that liability may be incurred by
Guarantor hereunder.
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SECTION 13. EVENTS OF DEFAULT. "Event of Default" whenever used herein,
means any one of the following events:
(a) An Event of Default as provided under the Loan Agreement
or any of the other Loan Documents and its continuance beyond any
applicable notice and/or grace periods therein contained;
(b) A default by Guarantor in the performance, or breach, of
any covenant or other provision contained in this Guaranty;
(c) A default in the performance, or breach, of any material
covenant or agreement of Guarantor or any Subsidiary in any loan or
credit agreement or any note issued pursuant thereto or default in the
payment of any sum due under any such agreement or any note issued
pursuant thereto (whether payment is due at maturity, by reason of
notice of prepayment or acceleration or otherwise) and such default
shall continue unremedied for a period of fifteen (15) days from the
date of notice thereof and such default shall have a Material Adverse
Effect on Guarantor;
(d) A default under any bond, debenture, note or other
evidence of indebtedness of Guarantor or any Subsidiary (other than to
Lender) or under any indenture or other instrument under which any such
evidence of indebtedness has been issued or by which it is governed
which, in the opinion of Lender, would have a Material Adverse Effect
on such party and such default shall continue unremedied for a period
of fifteen (15) days from the date of notice thereof from Lender;
(e) Guarantor commences any case, proceeding or other action
under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief
of debtors, or seeks to have an order for relief entered with respect
to it, or seeks to be adjudicated a bankrupt or insolvent, or seeks
reorganization, arrangement, adjustment, liquidation, dissolution,
composition or other relief with respect to it or its debts, or seeks
the appointment of a receiver, trustee, custodian or other similar
official for it or for all or any substantial part of its property;
(f) Guarantor make a general assignment for the benefit of
creditors;
(g) there is commenced against Guarantor, any case, proceeding
or other action of a nature referred to in subparagraph (e) above or
seeking the issuance of a warrant of attachment, execution, distraint
or similar process ("Process") against all or any substantial part of
its property, which case, proceeding or other action results in the
entry of an order for relief or remains undismissed, undischarged or
unbonded for a period of 60 days, which Process has a Material Adverse
Effect on Guarantor;
(h) Guarantor takes any action indicating its consent to,
approval of, or acquiescence in or in furtherance of, any of the acts
set forth in subparagraphs (c) and (e) above;
(i) Guarantor admits in writing its inability to pay its debts
as they mature;
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(j) Guarantor terminates or dissolves or suspends its usual
business activities or conveys, sells, leases, transfers or otherwise
disposes of all or a substantial part of its property, business or
assets other than in the ordinary course of business.
SECTION 14. WAIVER CONCERNING CLAIMS AGAINST BORROWER. This is a
guaranty of payment and not of collection and Guarantor further waives any right
to require that any action be brought against the Borrower or any other person
or party or to require that resort be had to any security or to any balance of
any deposit account or credit on the books of Lender in favor of the Borrower or
any other person or party. Any payment on account of or reacknowledgment of the
Obligations by the Borrower, or any other party liable therefor, shall be deemed
to be made on behalf of Guarantor and shall serve to start anew the statutory
period of limitations applicable to the Obligations.
SECTION 15. SUCCESSORS AND ASSIGNS. Each reference herein to Lender
shall be deemed to include its successors and assigns, in whose favor the
provisions of this Guaranty shall also inure. Each reference herein to the
Guarantor shall be deemed to include the successors and assigns of Guarantor,
all of whom shall be bound by the provisions of this Guaranty, provided,
however, that Guarantor shall in no event nor under any circumstance have the
right, without obtaining the prior written consent of Lender, to assign or
transfer Guarantor's obligations and liabilities under this Guaranty, in whole
or in part, to any other person, party or entity.
SECTION 16. MERGER CONSOLIDATION OR REORGANIZATION OF GUARANTOR. The
term "Guarantor" as used herein shall mean, the agreements and obligations on
the part of the Guarantor herein contained shall remain in force and application
notwithstanding the merger, consolidation, reorganization or absorption thereof,
and the term "Guarantor" shall include such new entity, but the old entity shall
not thereby be released from any obligations or liabilities hereunder.
SECTION 17. DELAY OR INDULGENCE NOT WAIVER. No delay on the part of
Lender in exercising any right or remedy under this Guaranty or failure to
exercise the same shall operate as a waiver in whole or in part of any such
right or remedy. No notice to or demand on Guarantor shall be deemed to be a
waiver of the obligations of Guarantor or of the right of Lender to take further
action without notice or demand as provided in this Guaranty. No course of
dealing between Guarantor and Lender shall change, modify or discharge, in whole
or in part, this Guaranty or any obligations of the Guarantor hereunder.
SECTION 18. MODIFICATIONS AND AMENDMENTS. This Guaranty may only be
modified, amended, changed or terminated by an agreement in writing signed by
Lender and the Guarantor. No waiver of any term, covenant or provision of this
Guaranty shall be effective unless given in writing by Lender and if so given by
Lender shall only be effective in the specific instance in which given. The
execution and delivery hereafter to Lender by Guarantor of a new instrument of
guaranty or any reaffirmation of guaranty, of whatever nature, shall not
terminate, supersede or cancel this instrument, unless expressly so provided
therein, and all rights and remedies of Lender hereunder or under any instrument
of guaranty hereafter executed and delivered to Lender by Guarantor shall be
cumulative and may be exercised singly or concurrently.
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SECTION 19. OBLIGATIONS ABSOLUTE.
(a) Guarantor acknowledges that this Guaranty and Guarantor's
obligations under this Guaranty are and shall at all times continue to
be absolute, irrevocable and unconditional in all respects, and shall
at all times be valid and enforceable irrespective of any other
agreements or circumstances of any nature whatsoever which might
otherwise constitute a defense to this Guaranty and the obligations of
Guarantor under this Guaranty or the obligations of any other person or
party (including, without limitation, the Borrower) relating to this
Guaranty or the obligations of Guarantor hereunder or otherwise with
respect to the Obligations, including, but not limited to, a
foreclosure of any of the Loan Documents or the realization upon any
other collateral given, pledged or assigned as security for all or any
portion of the Obligations, or the filing of a petition under Title 11
of the United States Code with regard to the Borrower or Guarantor, or
the commencement of an action or proceeding for the benefit of the
creditors of the Borrower or Guarantor, or the obtaining by Lender of
title to, respectively, the collateral encumbered by any of the Loan
Documents or any other collateral given, pledged or assigned as
security for the Obligations by reason of the foreclosure or
enforcement of any of the Loan Documents or any other pledge or
security agreement, the acceptance of a deed or assignment in lieu of
foreclosure or sale, or otherwise.
(b) No exculpatory provisions which may be contained in the
Loan Agreement or in any other Loan Document shall in any event or
under any circumstances be deemed or construed to modify, qualify, or
affect in any manner whatsoever the obligations and liabilities of
Guarantor under this Guaranty.
SECTION 20. WAIVER OF SUBROGATION. Notwithstanding any payments made by
Guarantor pursuant to the provisions of this Guaranty, as long as any of the
Obligations are unpaid or outstanding, Guarantor irrevocably waives all rights
to enforce or collect upon any rights which it now has or may acquire against
the Borrower either by way of subrogation, indemnity, reimbursement or
contribution for any amount paid under this Guaranty or by way of any other
obligations whatsoever of the Borrower to Guarantor. This Guaranty shall
continue to be effective or be reinstated, as if any applicable payment of the
Obligations had not been made, if at any time any such payment of the
Obligations is rescinded or must be otherwise returned by Lender upon the
insolvency, bankruptcy, or other reorganization of Borrower. The provisions of
this Section 20 shall survive the term of this Guaranty and the payment in full
of the Obligations and the termination of any commitment to make any further
advances of Loan proceeds pursuant to the Loan Agreement.
SECTION 21. NOTICES. Any notice, request or demand given or made under
this Guaranty shall be in writing and shall be hand delivered or sent by Federal
Express or other reputable overnight courier service or by postage prepaid
registered or certified mail, return receipt requested, and shall be deemed
given (a) when received at the following addresses if hand delivered or if sent
by Federal Express or other reputable overnight courier service, and (b) three
(3) business days after being postmarked and addressed as follows if sent by
registered or certified mail, return receipt requested:
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IF TO LENDER:
Transamerica Equipment Financial Services Corporation
00000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: Region Credit Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
WITH A COPY TO:
Transamerica Equipment Financial Services Corporation
Riverway II, West Office Tower
0000 Xxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Legal Department
Facsimile: (000) 000-0000
IF TO THE GUARANTOR:
Statia Terminals Group N.V.
c/o Statia Terminals, Inc.
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Vice President and Treasurer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
WITH A COPY TO:
Statia Terminals Group N.V.
c/o Statia Terminals, Inc.
000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attention: Secretary
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
it being understood and agreed that each party will use reasonable efforts to
send copies of any notices to the addresses marked "With a copy to" hereinabove
set forth; PROVIDED, however, that failure to deliver such copy or copies shall
have no consequence whatsoever to the effectiveness of any notice made to the
Guarantor or Lender. Each party to this Guaranty may designate a change of
address by notice given, as herein provided, to the other party fifteen (15)
days prior to the date such change of address is to become effective.
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SECTION 22. INTEGRATION. This Guaranty constitutes the entire agreement
and understanding between the Lender and the Guarantor relating to the subject
matter hereof, and supersedes all prior negotiations, agreements and
understandings relating to such subject matter. In entering into this Guaranty,
the Guarantor acknowledges that it is relying on no statement, representation,
warranty, covenant or agreement of any kind made by the Lender or any employee
or agent of the Lender.
SECTION 23. GOVERNING LAW. THIS GUARANTY IS, AND SHALL BE DEEMED TO BE,
A CONTRACT ENTERED INTO UNDER AND PURSUANT TO THE LAWS OF THE STATE OF ILLINOIS
AND SHALL BE IN ALL RESPECTS GOVERNED, CONSTRUED, APPLIED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD TO ANY RULES,
REGULATIONS OR LAWS CONCERNING CONFLICT OF LAWS.
SECTION 24. CONSENT TO JURISDICTION; SERVICE OF PROCESS; VENUE.
Guarantor agrees to submit to personal jurisdiction in the State of Illinois in
any action or proceeding arising out of this Guaranty. In furtherance of such
agreement, Guarantor hereby agrees and consents that without limiting other
methods of obtaining jurisdiction, personal jurisdiction over Guarantor in any
such action or proceeding may be obtained within or without the jurisdiction of
any court located in Illinois and that any process or notice of motion or other
application to any such court in connection with any such action or proceeding
maybe served upon Guarantor by registered or certified mail to, or by personal
service at, the last known address of Guarantor, whether such address be within
or without the jurisdiction of any such court. Guarantor hereby further agrees
that the venue of any litigation arising in connection with any matters relating
to the Obligations, this Guaranty or the enforcement hereof, shall, to the
extent permitted by law, be in Xxxx County.
SECTION 25. WAIVER OF DEFENSES. Guarantor absolutely, unconditionally
and irrevocably waives any and all right to assert or interpose any defense
(other than the final and indefeasible payment in full of the Obligations),
setoff, counterclaim or crossclaim of any nature whatsoever with respect to this
Guaranty or the obligations of Guarantor under this Guaranty, or the obligations
of any other person or party (including without limitation, the Borrower)
relating to this Guaranty, or the obligations of Guarantor hereunder or
otherwise with respect to the Loan in any action or proceeding brought by Lender
to collect the Obligations, or any portion thereof, or to enforce the
obligations of Guarantor under this Guaranty; PROVIDED, HOWEVER, that the
foregoing shall not be deemed a waiver of the right of Guarantor to assert any
compulsory counterclaim maintained in a court of the United States, or of the
State of Illinois, if such counterclaim is compelled under local law or rule of
procedure, nor shall the foregoing be deemed a waiver of the right of Guarantor
to assert any claim which would constitute a defense, setoff, counterclaim or
crossclaim of any nature whatsoever against Lender in any separate action or
proceeding. Guarantor hereby undertakes and agrees that this Guaranty shall
remain in full force and effect for all of the obligations and liabilities of
Guarantor hereunder, notwithstanding the maturity of the Loan, whether by
acceleration, scheduled maturity or otherwise.
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SECTION 26. COUNTERPARTS; SECTION HEADINGS. This Guaranty may be
executed in one or more counterparts, each of which counterparts shall be an
original and all of which together shall constitute a single agreement of
guaranty. The section headings contained in this Guaranty are for convenience of
reference only, and shall not affect in any way the interpretation of any of the
provisions hereof.
SECTION 27. WAIVER OF JURY TRIAL. GUARANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, AND LENDER BY ITS ACCEPTANCE OF THIS GUARANTY
IRREVOCABLY AND UNCONDITIONALLY WAIVES, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, SUIT OR COUNTERCLAIM ARISING IN CONNECTION WITH, OUT OF OR OTHERWISE
RELATING TO THIS GUARANTY.
IN WITNESS WHEREOF, the undersigned officers of STATIA TERMINALS GROUP
N.V., duly authorized hereunto, have each executed and delivered this Guaranty
on the day, month and year first written above.
STATIA TERMINALS GROUP N.V.
-----------------------------------------
By: Xxxxx X. Xxxxxxx
Title: Vice President and Treasurer
-----------------------------------------
By: Xxxxxx X. Xxxxxxxx, Xx.
Title: Vice President
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ACKNOWLEDGMENT
STATE OF FLORIDA
COUNTY OF BROWARD
BEFORE ME, the undersigned Notary Public, duly commissioned and
qualified within and for the State and County aforesaid,
PERSONALLY CAME AND APPEARED, Xxxxx X. Xxxxxxx, that he is the Vice
President and Treasurer of Statia Terminals Group N.V. (the "Company"), and that
as such officer and on behalf of and in the name of the Company on December 20,
2000, he signed and executed the above and foregoing Guaranty. Said appearer
further declared and acknowledged that the execution and delivery of this
Guaranty has been fully authorized by the Board of Directors of the Company, and
that he executed the Guaranty as the free act and deed of the Company, for the
purposes and considerations therein expressed.
IN WITNESS WHEREOF, this instrument is executed in the presence of the
undersigned witnesses and me, Notary on this 20th day of December, 2000.
WITNESSES:
--------------------------------- ----------------------------------------
(Name of appearer) Xxxxx X. Xxxxxxx
Vice President and Treasurer
---------------------------------
--------------------------------
NOTARY PUBLIC
NOTE: TWO SEPARATE WITNESSES ARE REQUIRED AND THE NOTARY CANNOT ALSO ACT AS A
WITNESS.
NOTE: ACKNOWLEDGMENT IS REQUIRED FOR ALL PARTIES SIGNING DOCUMENTS OUTSIDE THE
CLOSING.
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ACKNOWLEDGMENT
STATE OF FLORIDA
COUNTY OF BROWARD
BEFORE ME, the undersigned Notary Public, duly commissioned and
qualified within and for the State and County aforesaid,
PERSONALLY CAME AND APPEARED, Xxxxxx X. Xxxxxxxx, Xx., that he is a
Vice President of Statia Terminals Group N.V. (the "Company"), and that as such
officer and on behalf of and in the name of the Company on December 20, 2000, he
signed and executed the above and foregoing Guaranty. Said appearer further
declared and acknowledged that the execution and delivery of this Guaranty has
been fully authorized by the Board of Directors of the Company, and that he
executed the Guaranty as the free act and deed of the Company, for the purposes
and considerations therein expressed.
IN WITNESS WHEREOF, this instrument is executed in the presence of the
undersigned witnesses and me, Notary on this 20 day of December, 2000.
WITNESSES:
--------------------------------- ------------------------------------------
(Name of appearer) Xxxxxx X. Xxxxxxxx, Xx.
Vice President
---------------------------------
--------------------------------
NOTARY PUBLIC
NOTE: TWO SEPARATE WITNESSES ARE REQUIRED AND THE NOTARY CANNOT ALSO ACT AS A
WITNESS.
NOTE: ACKNOWLEDGMENT IS REQUIRED FOR ALL PARTIES SIGNING DOCUMENTS OUTSIDE THE
CLOSING.
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