Exhibit 10.5B
CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
ASTERISKS (*) DENOTE SUCH OMISSIONS
GUARANTY
--------
THIS GUARANTY is made, effective as of March 12, 2001, by Harbor Global
Company Ltd., Xxx Xxxxxxx Xxxx Xxxxxxxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, XXX
(the "Guarantor"), to Rayonier Inc., 00000 Xxxxxxxxxxxxx Xxxx., Xxxxx 000,
Xxxxxxx, Xxxxxxxxxx 00000, XXX (the "Creditor"), with respect to certain
obligations of Closed Joint-Stock Company "Forest-Starma", 0 Xxxxxxxx Xxxxxx,
xxx. 0, Xxxxxx, Xxxxxxxxxx Xxxxxxxxx 682860, Russian Federation (the "Debtor").
WHEREAS, the Creditor and the Debtor have entered into Log Sales
Contract No. 11-21-01, dated November 27, 2000 (the "Contract"), pursuant to
which the Creditor will purchase certain logs produced by the Debtor at its
logging operation in Siziman Bay, Russia; and
WHEREAS, the Guarantor wishes to induce the Creditor to execute,
simultaneously with the execution of this Guaranty, Addendum No. 1 to the
Contract ("Addendum No. 1"), according to which the Creditor will make two
advance payments in the amount of $*** each, totaling $*** in the aggregate, for
certain logs purchased by the Creditor from the Debtor under the Contract.
1. In consideration of the foregoing matters, and for other valuable
consideration, the receipt and sufficiency of which is acknowledged, the
Guarantor guarantees the payment and performance of all debts, obligations and
liabilities of the Debtor to the Creditor under Articles 2 and 3 of Addendum No.
1 and Article 6 of the Contract, together with all reasonable costs of
collection, compromise or enforcement, including without limitation, reasonable
attorneys' fees incurred with respect to any such debts, obligations or
liabilities or with respect to this Guaranty, or with respect to a proceeding
under the United States Bankruptcy Code or any other bankruptcy, reorganization,
receivership, insolvency or other similar law in effect in the United States or
Russia affecting the rights of creditors generally, or a trust mortgage,
composition or assignment for the benefit of creditors concerning the Debtor or
the Guarantor (all of the foregoing, collectively, the "Obligations").
2. The Guarantor hereby agrees with the Creditor:
(a) that the Creditor shall not seek to exercise any remedy
hereunder against the Guarantor or the Guarantor's assets until ten (10) days
after delivery of written notice to the Guarantor in accordance with Section 3
below specifying in reasonable detail what obligations are alleged to be due and
owing, during which period (the "Notice Period") the Creditor shall diligently
use its best efforts to collect such Obligations from the Debtor;
(b) that, following the expiration of the Notice Period, the
liability of the Guarantor hereunder shall be primary, direct and unconditional
and may be enforced without requiring the Creditor first to resort to any other
right, remedy or security;
(c) that the Guarantor shall not have any right of subrogation,
reimbursement or indemnity whatsoever, nor any right of recourse to security for
any of the Obligations, unless and until all of the Obligations have been fully
paid and performed;
(d) that if the Debtor or the Guarantor should at any time become
insolvent or make a composition, trust mortgage or general assignment for the
benefit of creditors, or if a proceeding under the United States Bankruptcy Code
or any other bankruptcy, reorganization, receivership, insolvency or other
similar law in effect in the United States or in Russia affecting the rights of
creditors generally shall be filed or commenced by, against or in respect of the
Debtor or the Guarantor and is not dismissed within 90 days thereafter, any and
all obligations of the Guarantor shall, as the Creditor's option, immediately
become due and payable without notice;
(e) that, if any payment or transfer to or recovery by the Creditor
which has been credited against any Obligation, is voided or rescinded or
required to be returned by the Creditor, whether or not in connection with any
event or proceeding described in Section 2(d), this Guaranty shall continue in
effect or be reinstated as though such payment, transfer or recovery had not
been made;
(f) that the Creditor's books and records showing the account
between the Creditor and the Debtor shall be admissible in any action or
proceeding; and
(g) that nothing shall discharge or satisfy the liability of the
Guarantor hereunder except the full payment and performance of all of the
Obligations.
3. Notices
Any notice given hereunder shall be in writing and shall be
effective upon receipt. Notices hereunder may be delivered by hand or by courier
service or sent by telefax, express mail or air mail to the following addresses
or fax numbers:
To Creditor: Xxxxxx X. Xxxxxxx
Rayonier Inc.
X.X. Xxx 00000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Fax No.: (000) 000-0000
copy to: Xxxxxx X. Xxxxxxxxxxx
Assistant General Counsel
Rayonier Inc.
X.X. Xxx 00000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Fax No.: (000) 000-0000
To Debtor: Closed Joint-Stock Company "Forest-Starma"
Xxxxxx Xxxxx, 0
000000 Xxxxxxxxxx-xx-Xxxx
Xxxxxx
Fax No.: 0-00000-0-00-00
To Guarantor: Xxxxxxx X. Xxxxxx
President and Chief Executive Officer
Harbor Global Company Ltd.
Xxx Xxxxxxx Xxxx Xxxxxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax No.: (000) 000-0000
copy to: Xxxxxxxxx X. Xxxxxxx
General Counsel
Harbor Global Company Ltd.
Xxx Xxxxxxx Xxxx Xxxxxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax No.: (000) 000-0000
4. This Guaranty, all acts and transactions hereunder, and the rights
and obligations of the parties hereto shall be governed, construed and
interpreted according to the laws of the Commonwealth of Massachusetts, without
giving effect to the conflict of law provisions thereof, shall be binding upon
the successors and assigns of the Guarantor and shall inure to the benefit of
the Creditor's successors and assigns.
This document shall be deemed to be executed under seal.
Harbor Global Company Ltd.
/s/ Xxxxxxx X. Xxxxxx
---------------------
By: Xxxxxxx X. Xxxxxx
Its: President and Chief Executive Officer
