GUARANTY
Exhibit
10.3
GUARANTY,
dated as of July 20, 2007 (as amended, modified, restated and/or supplemented
from time to time, this “Guaranty”), made by each of the undersigned guarantors
(each a “Guarantor” and, together with any other entity that becomes a guarantor
hereunder pursuant to Section 25 hereof, the “Guarantors”). Except as
otherwise defined herein, capitalized terms used herein and defined in the
Credit Agreement (as defined below) shall be used herein as therein
defined.
WITNESSETH
:
WHEREAS,
Genco Shipping & Trading Limited (the “Borrower”), the lenders from time to
time party thereto (the “Lenders”), DnB Nor Bank ASA, New York Branch, as
Administrative Agent and as Collateral Agent (in such capacity, together
with
any successor Administrative Agent, the “Administrative Agent”), have entered
into a Credit Agreement, dated as of July 20, 2007 (as amended, modified,
restated and/or supplemented from time to time, the “Credit Agreement”),
providing for the making of Loans to the Borrower as contemplated therein
(the
Lenders, the Collateral Agent and the Administrative Agent are herein called
the
“Lender Creditors”);
WHEREAS,
the Borrower may at any time and from time to time enter into, or guaranty
the
obligations of one or more other Guarantors or any of their respective
Subsidiaries under, one or more Interest Rate Protection Agreements or Other
Hedging Agreements with respect to the Borrower’s obligations under the Credit
Agreement with respect to the outstanding Loans and/or Commitment from time
to
time with one or more Lenders or any affiliate thereof (each such Lender
or
affiliate, even if the respective Lender subsequently ceases to be a Lender
under the Credit Agreement for any reason, together with such Lender’s or
affiliate’s successors and assigns, if any, collectively, the “Other Creditors”
and, together with the Lender Creditors, the “Secured Creditors”);
WHEREAS,
each Guarantor is a direct or indirect Subsidiary of the Borrower;
WHEREAS,
it is a condition to the making of Loan in respect of the Capesize Vessels
and
other Loans to the Borrower under the Credit Agreement that each Guarantor
shall
have executed and delivered this Guaranty; and
WHEREAS,
each Guarantor will obtain benefits from the incurrence of Loans to the Borrower
under the Credit Agreement and the entering into by the Borrower of Interest
Rate Protection Agreements or Other Hedging Agreements and, accordingly,
desires
to execute this Guaranty in order to satisfy the conditions described in
the
preceding paragraph;
page
2
NOW,
THEREFORE, in consideration of the foregoing and other benefits accruing
to each
Guarantor, the receipt and sufficiency of which are hereby acknowledged,
each
Guarantor hereby makes the following representations and warranties to the
Secured Creditors and hereby covenants and agrees with each Secured Creditor
as
follows:
1. Each
Guarantor, jointly and severally, irrevocably, absolutely and unconditionally
guarantees: (i) to the Lender Creditors the full and prompt payment
when due (whether at the stated maturity, by acceleration or otherwise) of
(x)
the principal of, premium, if any, and interest on the Notes issued by, and
the
Loans made to, the Borrower under the Credit Agreement, and (y) all other
obligations (including obligations which, but for the automatic stay under
Section 362(a) of the Bankruptcy Code, would become due), liabilities and
indebtedness owing by the Borrower to the Lender Creditors (in the capacities
referred to in the definition of Lender Creditors) under the Credit Agreement
and each other Credit Document to which the Borrower is a party (including,
without limitation, indemnities, fees and interest thereon (including any
interest accruing after the commencement of any bankruptcy, insolvency,
receivership or similar proceeding at the rate provided for in the Credit
Agreement, whether or not such interest is an allowed claim in any such
proceeding)), whether now existing or hereafter incurred under, arising out
of
or in connection with the Credit Agreement and any such other Credit Document
and the due performance and compliance by the Borrower with all of the terms,
conditions and agreements contained in all such Credit Documents (all such
principal, premium, interest, liabilities, indebtedness and obligations being
herein collectively called the “Credit Document Obligations”); and (ii) to each
Other Creditor the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due), liabilities and indebtedness (including
any
interest accruing after the commencement of any bankruptcy, insolvency,
receivership or similar proceeding at the rate provided for in the respective
Interest Rate Protection Agreements or Other Hedging Agreements, whether
or not
such interest is an allowed claim in any such proceeding) owing by the Borrower
under any Interest Rate Protection Agreement or Other Hedging Agreement entered
into in respect of the Borrower’s obligations with respect to the outstanding
Loans and/or Commitments from time to time, whether now in existence or
hereafter arising, and the due performance and compliance by the Borrower
with
all of the terms, conditions and agreements contained in each such Interest
Rate
Protection Agreement and Other Hedging Agreement to which it is a party (all
such obligations, liabilities and indebtedness being herein collectively
called
the “Other Obligations” and, together with the Credit Document Obligations, the
“Guaranteed Obligations”). As used herein, the term “Guaranteed
Party” shall mean the Borrower party to or as guarantor of any Guarantor or its
Subsidiaries party to any Interest Rate Protection Agreement or Other Hedging
Agreement with an Other Creditor. Each Guarantor understands, agrees
and confirms that the Secured Creditors may enforce this Guaranty up to the
full
amount of the Guaranteed Obligations against such Guarantor without proceeding
against any other Guarantor, the Borrower, any other Guaranteed Party, against
any security for the Guaranteed Obligations, or under any other guaranty
covering all or a portion of the Guaranteed Obligations.
page
3
2. Additionally,
each Guarantor, jointly and severally, unconditionally, absolutely and
irrevocably, guarantees the payment of any and all Guaranteed Obligations
whether or not due or payable by the Borrower or any other Guaranteed Party
upon
the occurrence in respect of the Borrower or any such other Guaranteed Party
of
any of the events specified in Section 10.05 of the Credit Agreement, and
unconditionally and irrevocably, jointly and severally, promises to pay such
Guaranteed Obligations to the Secured Creditors, or order, on
demand. This Guaranty shall constitute a guaranty of payment, and not
of collection.
3. The
liability of each Guarantor hereunder is primary, absolute, joint and several,
and unconditional and is exclusive and independent of any security for or
other
guaranty of the indebtedness of the Borrower or any other Guaranteed Party
whether executed by such Guarantor, any other Guarantor, any other guarantor
or
by any other party, and the liability of each Guarantor hereunder shall not
be
affected or impaired by any circumstance or occurrence whatsoever, including,
without limitation: (a) any direction as to application of payment by
the Borrower or any other Guaranteed Party or by any other party, (b) any
other
continuing or other guaranty, undertaking or maximum liability of a guarantor
or
of any other party as to the Guaranteed Obligations, (c) any payment on or
in
reduction of any such other guaranty or undertaking, (d) any dissolution,
change
in corporate structure, termination or increase, decrease or change in
personnel, by the Borrower or any other Guaranteed Party, (e) to the extent
permitted by applicable law, any payment made to any Secured Creditor on
the
indebtedness which any Secured Creditor repays the Borrower or any other
Guaranteed Party pursuant to court order in any bankruptcy, reorganization,
arrangement, moratorium or other debtor relief proceeding, and each Guarantor
waives any right to the deferral or modification of its obligations hereunder
by
reason of any such proceeding, (f) any action or inaction by the Secured
Creditors as contemplated in Section 6 hereof or (g) any invalidity,
irregularity or unenforceability of all or any part of the Guaranteed
Obligations or of any security therefor, including, without limitation, any
such
invalidity, irregularity or unenforceability caused by a change in
law.
4. The
obligations of each Guarantor hereunder are independent of the obligations
of
any other Guarantor, any other guarantor, the Borrower or any other Guaranteed
Party, and a separate action or actions may be brought and prosecuted against
each Guarantor whether or not action is brought against any other Guarantor,
any
other guarantor, the Borrower or any other Guaranteed Party and whether or
not
any other Guarantor, any other guarantor, the Borrower or any other Guaranteed
Party be joined in any such action or actions. Each Guarantor waives,
to the fullest extent permitted by law, the benefits of any statute of
limitations affecting its liability hereunder or the enforcement
thereof. Any payment by the Borrower or any other Guaranteed Party or
other circumstance which operates to toll any statute of limitations as to
the
Borrower or any other Guaranteed Party shall operate to toll the statute
of
limitations as to each Guarantor.
5. Any
Secured Creditor may at any time and from time to time without the consent
of,
or notice to, any Guarantor, without incurring responsibility to such Guarantor,
without impairing or releasing the obligations of such Guarantor hereunder,
upon
or without any terms or conditions and in whole or in part:
page
4
(a) change
the manner, place or terms of payment of, and/or change, increase or extend
the
time of payment of, renew or alter, any of the Guaranteed Obligations (including
any increase or decrease in the rate of interest thereon or the principal
amount
thereof), any security therefor, or any liability incurred directly or
indirectly in respect thereof, and the guaranty herein made shall apply to
the
Guaranteed Obligations as so changed, extended, renewed or altered;
(b) take
and hold security for the payment of the Guaranteed Obligations and sell,
exchange, release, surrender, impair, 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 Guaranteed Obligations or
any
liabilities (including any of those hereunder) incurred directly or indirectly
in respect thereof or hereof, and/or any offset there against;
(c) exercise
or refrain from exercising any rights against the Borrower, any
other Guaranteed Party, any other Credit Party, any Subsidiary
thereof or otherwise act or refrain from acting;
(d) release
or substitute any one or more endorsers, Guarantors, other guarantors, the
Borrower, any other Guaranteed Party, or other obligors;
(e) settle
or compromise any of the Guaranteed Obligations, 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
or
any other Guaranteed Party to creditors of the Borrower or such other Guaranteed
Party other than the Secured Creditors;
(f) apply
any sums by whomsoever paid or howsoever realized to any liability or
liabilities of the Borrower or any other Guaranteed Party to the Secured
Creditors regardless of what liabilities of the Borrower or such other
Guaranteed Party remain unpaid;
(g) consent
to or waive any breach of, or any act, omission or default under, any of
the
Interest Rate Protection Agreements or Other Hedging Agreements, the Credit
Documents or any of the instruments or agreements referred to therein, or
otherwise amend, modify or supplement (in accordance with their terms) any
of
the Interest Rate Protection Agreements or Other Hedging Agreements, the
Credit
Documents or any of such other instruments or agreements;
(h) act
or fail to act in any manner which may deprive such Guarantor of its right
to
subrogation against the Borrower or any other Guaranteed Party to recover
full
indemnity for any payments made pursuant to this Guaranty; and/or
(i) take
any other action which would, under otherwise applicable principles of common
law, give rise to a legal or equitable discharge of such Guarantor from its
liabilities under this Guaranty.
6. 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
page
5
hereon. No
failure or delay on the part of any Secured Creditor in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall
any
single or partial exercise of any right, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
power
or privilege hereunder. The rights and remedies herein expressly
specified are cumulative and not exclusive of any rights or remedies which
any
Secured Creditor would otherwise have hereunder. No notice to or
demand on any Guarantor in any case shall entitle such Guarantor to any other
further notice or demand in similar or other circumstances or constitute
a
waiver of the rights of any Secured Creditor to any other or further action
in
any circumstances without notice or demand. It is not necessary for
any Secured Creditor to inquire into the capacity or powers of the Borrower
or
any other Guaranteed Party or the officers, directors, partners or agents
acting
or purporting to act on its or their behalf, and any indebtedness made or
created in reliance upon the professed exercise of such powers shall be
guaranteed hereunder.
7. Any
indebtedness of the Borrower or any other Guaranteed Party now or hereafter
held
by any Guarantor is hereby subordinated to the indebtedness of the Borrower
or
such other Guaranteed Party to the Secured Creditors, and such indebtedness
of
the Borrower or such other Guaranteed Party to any Guarantor, if the
Administrative Agent or the Collateral Agent, after the occurrence and during
the continuance of an Event of Default, so requests, shall be collected,
enforced and received by such Guarantor as trustee for the Secured Creditors
and
be paid over to the Secured Creditors on account of the indebtedness of the
Borrower or the other Guaranteed Parties to the Secured Creditors, but without
affecting or impairing in any manner the liability of such Guarantor under
the
other provisions of this Guaranty. Without limiting the generality of
the foregoing, each Guarantor hereby agrees with the Secured Creditors that
it
will not exercise any right of subrogation which it may at any time otherwise
have as a result of this Guaranty (whether contractual, under Section 509
of the
Bankruptcy Code or otherwise) until all Guaranteed Obligations have been
irrevocably paid in full in cash.
8. (a) Each
Guarantor waives any right (except as shall be required by applicable law
and
cannot be waived) to require the Secured Creditors to: (i) proceed
against the Borrower, any other Guaranteed Party, any other Guarantor, any
other
guarantor of the Guaranteed Obligations or any other party; (ii) proceed
against
or exhaust any security held from the Borrower, any other Guaranteed Party,
any
other Guarantor, any other guarantor of the Guaranteed Obligations or any
other
party; or (iii) pursue any other remedy in the Secured Creditors’ power
whatsoever. Each Guarantor waives any defense based on or arising out
of any defense of the Borrower, any other Guaranteed Party, any other Guarantor,
any other guarantor of the Guaranteed Obligations or any other party other
than
payment in full of the Guaranteed Obligations, including, without limitation,
any defense based on or arising out of the disability of the Borrower, any
other
Guaranteed Party, any other Guarantor, any other guarantor of the Guaranteed
Obligations or any other party, or the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the cessation from any
cause
of the liability of the Borrower or any other Guaranteed Party other than
payment in full of the Guaranteed Obligations. The Secured Creditors
may, at their election, foreclose on any security held by the Administrative
Agent, the Collateral Agent or the other Secured Creditors by one or more
judicial or nonjudicial sales, whether or not every aspect of any such sale
is
commercially
page
6
reasonable,
or exercise any other right or remedy the Secured Creditors may have against
the
Borrower, any other Guaranteed Party or any other party, or any security,
without affecting or impairing in any way the liability of any Guarantor
hereunder except to the extent the Guaranteed Obligations have been paid
in full
in cash. Each Guarantor waives any defense arising out of any such
election by the Secured Creditors, even though such election operates to
impair
or extinguish any right of reimbursement or subrogation or other right or
remedy
of such Guarantor against the Borrower, any other Guaranteed Party or any
other
party or any security.
(b) Each
Guarantor waives all presentments, promptness, diligence, demands for
performance, protests and notices, including, without limitation, notices
of
nonperformance, notices of protest, notices of dishonor, notices of acceptance
of this Guaranty, and notices of the existence, creation or incurring of
new or
additional indebtedness. Each Guarantor assumes all responsibility
for being and keeping itself informed of the Borrower’s and each other
Guaranteed Party’s financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations
and the nature, scope and extent of the risks which such Guarantor assumes
and
incurs hereunder, and agrees that the Secured Creditors shall have no duty
to
advise any Guarantor of information known to them regarding such circumstances
or risks.
Each
Guarantor warrants and agrees that each of the waivers set forth above in
this
Section 8 is made with full knowledge of its significance and consequences
and
that if any of such waivers are determined to be contrary to any applicable
law
or public policy, such waivers shall be effective only to the maximum extent
permitted by law.
9.
(a) The Secured Creditors agree that this
Guaranty may be enforced only by the action of the Administrative Agent or
the
Collateral Agent, in each case acting upon the instructions of the Lenders
(or,
after the date on which all Credit Document Obligations have been paid in
full,
the holders of at least a majority of the outstanding Other Obligations)
and
that no other Secured Creditors shall have any right individually to seek
to
enforce or to enforce this Guaranty, it being understood and agreed that
such
rights and remedies may be exercised by the Administrative Agent or the
Collateral Agent or, after all the Credit Document Obligations have been
paid in
full, by the holders of at least a majority of the outstanding Other
Obligations, as the case may be, for the benefit of the Secured Creditors
upon
the terms of this Guaranty. The Secured Creditors further agree that
this Guaranty may not be enforced against any director, officer, employee,
partner, member or stockholder of any Guarantor (except to the extent such
partner, member or stockholder is also a Guarantor hereunder).
(b) The Administrative Agent and Collateral Agent
will hold in accordance with this Guaranty all collateral at any time received
under this Guaranty. It is expressly understood and agreed by each
Secured Creditor that by accepting the benefits of this Guaranty each such
Secured Creditor acknowledges and agrees that the obligations of the
Administrative Agent and Collateral Agent as enforcer of this Guaranty and
interests herein are only those expressly set forth in this Guaranty and
in
Section 12 of the Credit Agreement. The Administrative Agent and the
Collateral Agent shall act hereunder on the terms and conditions set forth
herein and in Section 12 of the Credit Agreement.
page
7
10. In
order to induce the Lenders to make Loans to the Borrower pursuant to the
Credit
Agreement, and in order to induce the Other Creditors to execute, deliver
and
perform the Interest Rate Protection Agreements and Other Hedging Agreements,
each Guarantor represents, warrants and covenants that:
(a) Such
Guarantor (i) is a duly organized and validly existing corporation, limited
partnership or limited liability company, as the case may be, in good standing
under the laws of the jurisdiction of its incorporation or formation, (ii)
has
the corporate or other applicable power and authority, as the case may be,
to
own its property and assets and to transact the business in which it is
currently engaged and presently proposes to engage and (iii) is duly qualified
and is authorized to do business and is in good standing in each jurisdiction
where the conduct of its business as currently conducted requires such
qualification, except for failures to be so qualified which, individually
or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(b) Such
Guarantor has the corporate or other applicable power and authority to execute,
deliver and perform the terms and provisions of this Guaranty and each other
Credit Document to which it is a party and has taken all necessary corporate
or
other applicable action to authorize the execution, delivery and performance
by
it of this Guaranty and each such other Credit Document. Such
Guarantor has duly executed and delivered this Guaranty and each other Credit
Document to which it is a party, and this Guaranty and each such other Credit
Document constitutes the legal, valid and binding obligation of such Guarantor
enforceable against such Guarantor in accordance with its terms, except to
the
extent that the enforceability hereof or thereof may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or
other similar laws generally affecting creditors’ rights and by equitable
principles (regardless of whether enforcement is sought in equity or at
law).
(c) Neither
the execution, delivery or performance by such Guarantor of this Guaranty
or any
other Credit Document to which it is a party, nor compliance by it with the
terms and provisions hereof and thereof, will (i) contravene any provision
of
any applicable law, statute, rule or regulation or any applicable order,
writ,
injunction or decree of any court or governmental instrumentality, (ii) conflict
with or result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien (except pursuant
to the Security Documents) upon any of the material properties or assets
of such
Guarantor or any of its Subsidiaries pursuant to the terms of any indenture,
mortgage, deed of trust, loan agreement or credit agreement, or any other
material agreement, contract or instrument, to which such Guarantor or any
of
its Subsidiaries is a party or by which it or any of its material property
or
assets is bound or to which it may be subject or (iii) violate any provision
of
the Certificate of Incorporation or By-Laws (or equivalent organizational
documents) of such Guarantor or any of its Subsidiaries.
(d) No
order, consent, approval, license, authorization or validation of, or filing,
recording or registration with (except as have been obtained or made or,
in the
case of any filings or recordings of the Security Documents (other than the
Vessel Mortgages) executed on or before
page
8
the
Initial Borrowing Date, will be made within 10 days of the Initial Borrowing
Date), or exemption by, any governmental or public body or authority, or
any
subdivision thereof, is required to authorize, or is required in connection
with, (i) the execution, delivery and performance of this Guaranty by such
Guarantor or any other Credit Document to which such Guarantor is a party
or
(ii) the legality, validity, binding effect or enforceability of this Guaranty
or any other Credit Document to which such Guarantor is a party.
(e) There
are no actions, suits, investigations or proceedings pending or, to such
Guarantor’s knowledge, threatened (i) with respect to this Guaranty or any other
Credit Document to which such Guarantor is a party or (ii) with respect to
such
Guarantor or any of its Subsidiaries that, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect.
11. Each
Guarantor covenants and agrees that on and after the Effective Date and until
the termination of the Commitments and all Interest Rate Protection Agreements
and Other Hedging Agreements entered into with respect to the Loans and until
such time as no Term Notes and no Revolving Notes remain outstanding and
all
Guaranteed Obligations have been paid in full, such Guarantor will comply,
and
will cause each of its Subsidiaries to comply, with all of the applicable
provisions, covenants and agreements contained in Sections 8 and 9 of the
Credit
Agreement, and will take, or will refrain from taking, as the case may be,
all
actions that are necessary to be taken or not taken so that it is not in
violation of any provision, covenant or agreement contained in Section 8
or 9 of
the Credit Agreement, and so that no Default or Event of Default is caused
by
the actions of such Guarantor or any of its Subsidiaries.
12. The
Guarantors hereby jointly and severally agree to pay all reasonable
out-of-pocket costs and expenses of (i) each Secured Creditor in connection
with
the enforcement of this Guaranty (including, without limitation, the reasonable
fees and disbursements of counsel employed by each Secured Creditor) and
(ii)
the Administrative Agent in connection with any amendment, waiver or consent
relating hereto (including, without limitation, the reasonable fees and
disbursements of counsel employed by the Administrative Agent).
13. This
Guaranty shall be binding upon each Guarantor and its successors and assigns
and
shall inure to the benefit of the Secured Creditors and their successors
and
assigns.
14. Neither
this Guaranty nor any provision hereof may be changed, waived, discharged
or
terminated except with the written consent of each Guarantor directly affected
thereby and with the written consent of (x) the Administrative Agent (or,
to the
extent required by Section 13.12 of the Credit Agreement, with the written
consent of the Required Lenders) at all times prior to the time on which
all
Credit Document Obligations have been paid in full or (y) the holders of
at
least a majority of the outstanding Other Obligations at all times after
the
time on which all Credit Document Obligations have been paid in full;
provided, that any change, waiver, modification or variance affecting the
rights and benefits of a single Class (as defined below) of Secured Creditors
(and not all Secured Creditors in a like or similar manner) shall also require
the written consent of the Requisite Creditors (as defined below) of such
Class
of Secured Creditors (it being understood that the addition or release of
any
Guarantor hereunder
page
9
shall
not
constitute a change, waiver, discharge or termination affecting any Guarantor
other than the Guarantor so added or released). For the purpose of
this Guaranty, the term “Class” shall mean each class of Secured Creditors,
i.e., whether (x) the Lender Creditors as holders of the Credit Document
Obligations or (y) the Other Creditors as the holders of the Other
Obligations. For the purpose of this Guaranty, the term “Requisite
Creditors” of any Class shall mean (x) with respect to the Credit Document
Obligations, the Required Lenders (or, to the extent required by Section
13.12
of the Credit Agreement, each Lender) and (y) with respect to the Other
Obligations, the holders of at least a majority of all obligations outstanding
from time to time under the Interest Rate Protection Agreements and Other
Hedging Agreements entered into with respect to the Loans (and/or the
Commitments).
15. Each
Guarantor acknowledges that an executed (or conformed) copy of each of the
Credit Documents and each existing Interest Rate Protection Agreements or
Other
Hedging Agreements has been made available to a senior officer of such Guarantor
and such officer is familiar with the contents thereof.
16. In
addition to any rights now or hereafter granted under applicable law (including,
without limitation, Section 151 of the New York Debtor and Secured Creditor
Law)
and not by way of limitation of any such rights, upon the occurrence and
during
the continuance of an Event of Default (such term to mean and include any
“Event
of Default” as defined in the Credit Agreement and any payment default under any
Interest Rate Protection Agreement or Other Hedging Agreement continuing
after
any applicable grace period), each Secured Creditor is hereby authorized,
at any
time or from time to time, without notice to any Guarantor or to any other
Person, any such notice being expressly waived, to set off and to appropriate
and apply any and all deposits (general or special) and any other indebtedness
at any time held or owing by such Secured Creditor to or for the credit or
the
account of such Guarantor, against and on account of the obligations and
liabilities of such Guarantor to such Secured Creditor under this Guaranty,
irrespective of whether or not such Secured Creditor shall have made any
demand
hereunder and although said obligations, liabilities, deposits or claims,
or any
of them, shall be contingent or unmatured.
17. Except
as otherwise expressly provided herein, all notices and other communications
provided for hereunder shall be in writing (including telexed, telegraphic
or
telecopier communication) and mailed, telexed, telecopied or
delivered: if to any Guarantor, at c/o Genco Ship Management LLC., as
agent, 00 Xxxx 00xx Xxxxxx,
Xxx Xxxx,
Xxx Xxxx 00000; if to any Secured Creditor, at its address specified opposite
its name on Schedule II to the Credit Agreement; and if to the Administrative
Agent, at its address specified opposite its name on Schedule II to the Credit
Agreement; or, as to any other Credit Party, at such other address as shall
be
designated by such party in a written notice to the other parties hereto
and, as
to each Secured Creditor, at such other address as shall be designated by
such
Secured Creditor in a written notice to the Borrower and the Administrative
Agent. All such notices and communications shall, (i) when mailed, be
effective three Business Days after being deposited in the mails, prepaid
and
properly addressed for delivery, (ii) when sent by overnight courier, be
effective one Business Day after delivery to the overnight courier prepaid
and
properly addressed for delivery on such next Business Day, or (iii) when
sent by
telex or telecopier, be effective
page
10
when
sent
by telex or telecopier, except that notices and communications to the
Administrative Agent or any Guarantor shall not be effective until received
by
the Administrative Agent or such Guarantor, as the case may be.
18. If
claim is ever made upon any Secured Creditor for repayment or recovery of
any
amount or amounts received in payment or on account of any of the Guaranteed
Obligations and any of the aforesaid payees repays all or part of said amount
by
reason of (i) any judgment, decree or order of any court or administrative
body
having jurisdiction over such payee or any of its property or (ii) any
settlement or compromise of any such claim effected by such payee with any
such
claimant (including the Borrower or any other Guaranteed Party) then and
in such
event each Guarantor agrees that any such judgment, decree, order, settlement
or
compromise shall be binding upon such Guarantor, notwithstanding any revocation
hereof or other instrument evidencing any liability of the Borrower or any
other
Guaranteed Party, and such Guarantor shall be and remain liable to the aforesaid
payees hereunder for the amount so repaid or recovered to the same extent
as if
such amount had never originally been received by any such payee.
19. (a) THIS
SUBSIDIARIES GUARANTY AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS OTHERWISE
PROVIDED IN CERTAIN OF THE VESSEL MORTGAGES, BE CONSTRUED IN ACCORDANCE WITH
AND
BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT
OF LAWS RULES (OTHER THAN TITLE 14 OF ARTICLE 5 OF THE GENERAL OBLIGATIONS
LAW). Any legal action or proceeding with respect to this
Guaranty or any other Credit Document to which any Guarantor is a party may
be
brought in the courts of the State of New York or of the United States of
America for the Southern District of New York in each case which are located
in
the City of New York, and, by execution and delivery of this Guaranty, each
Guarantor hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid
courts. Each Guarantor hereby further irrevocably waives (to the
fullest extent permitted by applicable law) any claim that any such court
lacks
personal jurisdiction over such Guarantor, and agrees not to plead or claim
in
any legal action or proceeding with respect to this Guaranty or any other
Credit
Document to which such Guarantor is a party brought in any of the aforesaid
courts that any such court lacks personal jurisdiction over such
Guarantor. Each Guarantor further irrevocably consents to the service
of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to such Guarantor at its address set forth in Section 17
hereof, such service to become effective 30 days after such
mailing. Each Guarantor hereby irrevocably waives (to the fullest
extent permitted by applicable law) any objection to such service of process
and
further irrevocably waives and agrees not to plead or claim in any action
or
proceeding commenced hereunder or under any other Credit Document to which
such
Guarantor is a party that such service of process was in any way invalid
or
ineffective. Nothing herein shall affect the right of any of the Secured
Creditors to serve process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against each Guarantor in any other
jurisdiction.
page
11
(b) Each
Guarantor hereby irrevocably waives (to the fullest extent permitted by
applicable law) any objection which it may now or hereafter have to the laying
of venue of any of the aforesaid actions or proceedings arising out of or
in
connection with this Guaranty or any other Credit Document to which such
Guarantor is a party brought in the courts referred to in clause (a) above
and
hereby further irrevocably waives (to the fullest extent permitted by applicable
law) and agrees not to plead or claim in any such court that such action
or
proceeding brought in any such court has been brought in an inconvenient
forum.
(c) EACH
GUARANTOR AND EACH SECURED CREDITOR (BY ITS ACCEPTANCE OF THE BENEFITS OF
THIS
GUARANTY) HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
GUARANTY, THE OTHER CREDIT DOCUMENTS TO WHICH SUCH GUARANTOR IS A PARTY OR
THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
20. In
the event that all of the capital stock or other equity interests of one
or more
Guarantors is sold or otherwise disposed of or liquidated in compliance with
the
requirements of Section 11.02 of the Credit Agreement (or such sale or other
disposition has been approved in writing by the Required Lenders (or all
the
Lenders if required by Section 15.12 of the Credit Agreement)) and the proceeds
of such sale, disposition or liquidation are applied in accordance with the
provisions of the Credit Agreement, to the extent applicable, such Guarantor
shall upon consummation of such sale or other disposition (except to the
extent
that such sale or disposition is to the Borrower or another Subsidiary thereof)
be released from this Guaranty automatically and without further action and
this
Guaranty shall, as to each such Guarantor or Guarantors, terminate, and have
no
further force or effect (it being understood and agreed that the sale of
one or
more Persons that own, directly or indirectly, all of the capital stock or
other
equity interests of any Guarantor shall be deemed to be a sale of such Guarantor
for the purposes of this Section 20).
21. At
any time a payment in respect of the Guaranteed Obligations is made under
this
Guaranty, the right of contribution of each Guarantor against each other
Guarantor shall be determined as provided in the immediately following sentence,
with the right of contribution of each Guarantor to be revised and restated
as
of each date on which a payment (a “Relevant Payment”) is made on the Guaranteed
Obligations under this Guaranty. At any time that a Relevant Payment
is made by a Guarantor that results in the aggregate payments made by such
Guarantor in respect of the Guaranteed Obligations to and including the date
of
the Relevant Payment exceeding such Guarantor’s Contribution Percentage (as
defined below) of the aggregate payments made by all Guarantors in respect
of
the Guaranteed Obligations to and including the date of the Relevant Payment
(such excess, the “Aggregate Excess Amount”), each such Guarantor shall have a
right of contribution against each other Guarantor who has made payments
in
respect of the Guaranteed Obligations to and including the date of the Relevant
Payment in an aggregate amount less than such other Guarantor’s Contribution
Percentage of the aggregate payments made to and including the date of the
Relevant Payment by all Guarantors in respect of the Guaranteed Obligations
(the
aggregate amount of such deficit, the “Aggregate Deficit Amount”) in an amount
equal to (x) a fraction the numerator of which is the Aggregate
page
12
Excess
Amount of such Guarantor and the denominator of which is the Aggregate Excess
Amount of all Guarantors multiplied by (y) the Aggregate Deficit Amount of
such
other Guarantor. A Guarantor’s right of contribution pursuant to the
preceding sentences shall arise at the time of each computation, subject
to
adjustment to the time of each computation; provided, that no Guarantor
may take any action to enforce such right until the Guaranteed Obligations
have
been paid in full in cash, it being expressly recognized and agreed by all
parties hereto that any Guarantor’s right of contribution arising pursuant to
this Section 21 against any other Guarantor shall be expressly junior and
subordinate to such other Guarantor’s obligations and liabilities in respect of
the Guaranteed Obligations and any other obligations owing under this
Guaranty. As used in this Section 21: (i) each Guarantor’s
“Contribution Percentage” shall mean the percentage obtained by dividing (x) the
Adjusted Net Worth (as defined below) of such Guarantor by (y) the aggregate
Adjusted Net Worth of all Guarantors; (ii) the “Adjusted Net Worth” of each
Guarantor shall mean the greater of (x) the Net Worth (as defined below)
of such
Guarantor and (y) zero; and (iii) the “Net Worth” of each Guarantor shall mean
the amount by which the fair saleable value of such Guarantor’s assets on the
date of any Relevant Payment exceeds its existing debts and other liabilities
(including contingent liabilities, but without giving effect to any Guaranteed
Obligations arising under this Guaranty or any guaranteed obligations arising
under any guaranty of the Senior Notes) on such date. All parties
hereto recognize and agree that, except for any right of contribution arising
pursuant to this Section 21, each Guarantor who makes any payment in respect
of
the Guaranteed Obligations shall have no right of contribution or subrogation
against any other Guarantor in respect of such payment until all of the
Guaranteed Obligations have been irrevocably paid in full in
cash. Each of the Guarantors recognizes and acknowledges that the
rights to contribution arising hereunder shall constitute an asset in favor
of
the party entitled to such contribution. In this connection, each
Guarantor has the right to waive its contribution right against any Guarantor
to
the extent that after giving effect to such waiver such Guarantor would remain
solvent, in the determination of the Required Lenders.
22. Each
Guarantor and each Secured Creditor (by its acceptance of the benefits of
this
Guaranty) hereby confirms that it is its intention that this Guaranty not
constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy
Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer
Act
or any similar Federal, state or other law. To effectuate the
foregoing intention, each Guarantor and each Secured Creditor (by its acceptance
of the benefits of this Guaranty) hereby irrevocably agrees that the Guaranteed
Obligations guaranteed by such Guarantor shall be limited to such amount
as
will, after giving effect to such maximum amount and all other (contingent
or
otherwise) liabilities of such Guarantor that are relevant under such laws
and
after giving effect to any rights to contribution pursuant to any agreement
providing for an equitable contribution among such Guarantor and the other
Guarantors, result in the Guaranteed Obligations of such Guarantor in respect
of
such maximum amount not constituting a fraudulent transfer or
conveyance.
23. This
Guaranty may be executed in any number of counterparts and by the different
parties hereto on separate counterparts, each of which when so executed and
delivered shall be an original (including if delivered by facsimile
transmission), but all of which shall
page
13
together
constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Guarantors and
the
Administrative Agent.
24. (a)
All payments made by any Guarantor hereunder will be made without setoff,
counterclaim or other defense, will be made in the currency or currencies
in
which the respective Guaranteed Obligations are then due and payable and
will be
made on the same basis as payments are made by the Borrower under Sections
4.04
and 4.05 of the Credit Agreement.
(b)
The
Guarantors’ obligations hereunder to make payments in the respective currency or
currencies in which the respective Guaranteed Obligations are required to
be
paid (such currency being herein called the “Obligation Currency”) shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than the Obligation Currency,
except to the extent that such tender or recovery results in the effective
receipt by the Administrative Agent, the Collateral Agent or the respective
other Secured Creditor of the full amount of the Obligation Currency expressed
to be payable to the Administrative Agent, the Collateral Agent or such other
Secured Creditor under this Guaranty or the other Credit Documents or any
Interest Rate Protection Agreement or Other Hedging Agreement, as
applicable. If for the purpose of obtaining or enforcing judgment
against any Guarantor in any court or in any jurisdiction, it becomes necessary
to convert into or from any currency other than the Obligation Currency (such
other currency being hereinafter referred to as the “Judgment Currency”) an
amount due in the Obligation Currency, the conversion shall be made, at the
rate
of exchange (quoted by the Administrative Agent, determined, in each case,
as of
the date immediately preceding the day on which the judgment is given (such
Business Day being hereinafter referred to as the “Judgment Currency Conversion
Date”).
(c) If
there is a change in the rate of exchange prevailing between the Judgment
Currency Conversion Date and the date of actual payment of the amount due,
the
Guarantors jointly and severally covenant and agree to pay, or cause to be
paid,
such additional amounts, if any (but in any event not a lesser amount), as
may
be necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of Judgment Currency stipulated in the judgment or judicial
award at the rate or exchange prevailing on the Judgment Currency Conversion
Date.
(d) For
purposes of determining the Relevant Currency Equivalent or any other rate
of
exchange for this Section 24, such amounts shall include any premium and
costs
payable in connection with the purchase of the Obligation Currency.
25. It
is understood and agreed that any Subsidiary of the Borrower that is required
to
execute a counterpart of this Guaranty after the date hereof pursuant to
the
Credit Agreement shall automatically become a Guarantor hereunder by executing
a
counterpart hereof and/or a Subsidiary assumption agreement, in each case
in
form and substance satisfactory to the Administrative Agent, and delivering
the
same to the Administrative Agent.
page
14
IN
WITNESS WHEREOF, each Guarantor has caused this Guaranty to be executed and
delivered as of the date first above written.
XXXXX XXXXXXXX LIMITED
|
|
as
Guarantor
|
|
By:
/s/ Xxxxxx Xxxxxx Xxxxxxxx
|
|
|
Name:
Xxxxxx Xxxxxx Xxxxxxxx
|
|
|
Title:
President
|
|
|
XXXXX
XXXXXXXX LIMITED
|
|
|
as
Guarantor
|
|
By:
/s/ Xxxxxx Xxxxxx Xxxxxxxx
|
|
|
Name:
Xxxxxx Xxxxxx Xxxxxxxx
|
|
|
Title:
President
|
|
|
GENCO
COMMODUS LIMITED
|
|
|
as
Guarantor
|
|
By:
/s/ Xxxxxx Xxxxxx Xxxxxxxx
|
|
|
Name:
Xxxxxx Xxxxxx Xxxxxxxx
|
|
|
Title:
President
|
|
|
XXXXX
XXXXXXXXXXX LIMITED
|
|
|
as
Guarantor
|
|
By:
/s/ Xxxxxx Xxxxxx Xxxxxxxx
|
|
|
Name:
Xxxxxx Xxxxxx Xxxxxxxx
|
|
|
Title:
President
|
|
|
GENCO
HADRIAN LIMITED
|
|
|
as
Guarantor
|
|
By:
/s/ Xxxxxx Xxxxxx Xxxxxxxx
|
|
|
Name:
Xxxxxx Xxxxxx Xxxxxxxx
|
|
|
Title:
President
|
page
15
|
|
GENCO
LONDON LIMITED
|
|
|
as
Guarantor
|
|
By:
/s/ Xxxxxx Xxxxxx Xxxxxxxx
|
|
|
Name:
Xxxxxx Xxxxxx Xxxxxxxx
|
|
|
Title:
President
|
|
|
GENCO
MAXIMUS LIMITED
|
|
|
as
Guarantor
|
|
By:
/s/ Xxxxxx Xxxxxx Xxxxxxxx
|
|
|
Name:
Xxxxxx Xxxxxx Xxxxxxxx
|
|
|
Title:
President
|
|
|
GENCO
TIBERIUS LIMITED
|
|
|
as
Guarantor
|
|
By:
/s/ Xxxxxx Xxxxxx Xxxxxxxx
|
|
|
Name:
Xxxxxx Xxxxxx Xxxxxxxx
|
|
|
Title:
President
|
|
|
XXXXX
XXXXX LIMITED
|
|
|
as
Guarantor
|
|
By:
/s/ Xxxxxx Xxxxxx Xxxxxxxx
|
|
|
Name:
Xxxxxx Xxxxxx Xxxxxxxx
|
|
|
Title:
President
|
|
|
DNB
NOR BANK ASA,
|
|
|
NEW
YORK BRANCH
|
|
By:
/s/ Xxxxxxx X. Xxxxxxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxxxxxx
|
|
|
Title:
Senior Vice President
|
|
By:
/s/ Xxxxxxxx Xxxxxxx
|
|
|
Name:
Xxxxxxxx Xxxxxxx
|
|
|
Title:
Vice President
|
