Date 28 January 2010 TBS INTERNATIONAL PUBLIC LIMITED COMPANY as Guarantor - and - JOH. BERENBERG, GOSSLER & CO. KG as Lender GUARANTEE relating to a Loan Agreement dated 19 June 2008
TBS
INTERNATIONAL PLC & SUBSIDIARIES EXHIBIT
10.26
Date 28
January 2010
TBS
INTERNATIONAL PUBLIC LIMITED COMPANY
as
Guarantor
- and
-
JOH.
XXXXXXXXX, XXXXXXX & CO. KG
as
Lender
________________________________________________
GUARANTEE
________________________________________________
relating
to a Loan Agreement
dated 19
June 2008
INDEX
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Clause
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Page
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THIS GUARANTEE is made on 28
January 2010
BETWEEN
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(1)
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TBS INTERNATIONAL PUBLIC
LIMITED COMPANY, a company incorporated in Ireland (registered no.
476578) whose registered office is at Xxxxxx Xxx Building, Earlsfort
Terrace, Dublin 2, Ireland (the “Guarantor”);
and
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(2)
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JOH. XXXXXXXXX, XXXXXXX &
CO. KG, whose principal office is at Xxxxx Xxxxxxxxxxxxx 00, 00000
Xxxxxxx, Xxxxxxx, (the “Lender”, which
expression includes its successors and
assigns).
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BACKGROUND
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(A)
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By
a loan agreement dated 19 June 2008 (as supplemented from time to time)
and made between (i) Grainger Maritime Corp. as borrower and (ii) the
Lender, it was agreed that the Lender would make available to the Borrower
a term loan facility of up to
US$13,000,000.
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(B)
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By
a supplemental agreement dated 28 January 2010 made between the Borrower,
TBS International Limited, TBS Shipping Services Inc., the Guarantor, TBS
Holdings Limited and the Lender, the Loan was further amended and
supplemented.
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(C)
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The
execution and delivery to the Lender of this Guarantee is one of the
conditions precedent to the continued availability of the term loan
facility under the said Loan
Agreement.
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IT IS AGREED as
follows:
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1
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INTERPRETATION
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1.1
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Defined
expressions. Words and expressions defined in the Loan
Agreement shall have the same meanings when used in this Guarantee unless
the context otherwise requires.
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1.2
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Construction of certain
terms. In this
Guarantee:
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“bankruptcy” includes
a liquidation, receivership or administration and any form of suspension of
payments, arrangement with creditors or reorganisation under any corporate or
insolvency law of any country;
“Loan Agreement” means the loan
agreement referred to in Recital (A) as amended by the Supplemental Agreement
and includes any existing or future amendments or supplements, whether made with
the Guarantor's consent or otherwise; and
“Supplemental Agreement” means
the supplemental agreement to the Loan Agreement referred to in Recital
(B).
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1.3
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Application of construction and
interpretation provisions of Loan Agreement. Clauses 1.2
of the Loan Agreement applies, with any necessary modifications, to this
Guarantee.
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2
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GUARANTEE
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2.1
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Guarantee and
indemnity. The Guarantor unconditionally and
irrevocably:
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(a)
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guarantees
the due payment of all amounts payable by the Borrower under or in
connection with the Loan Agreement and every other Finance
Document;
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(b)
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undertakes
to pay to the Lender, on the Lender's demand, any such amount which is not
paid by the Borrower when due and payable;
and
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(c)
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fully
indemnifies the Lender on its demand in respect of all claims, expenses,
liabilities and losses which are made or brought against or incurred by
the Lender as a result of or in connection with any obligation or
liability guaranteed by the Guarantor being or becoming unenforceable,
invalid, void or illegal; and the amount recoverable under this indemnity
shall be equal to the amount which the Lender would otherwise have been
entitled to recover.
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2.2
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No limit on number of
demands. The Lender may serve more than one demand under
Clause 2.1.
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3
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LIABILITY
AS PRINCIPAL AND INDEPENDENT DEBTOR
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3.1
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Principal and independent
debtor. The Guarantor shall be liable under this
Guarantee as a principal and independent debtor and accordingly it shall
not have, as regards this Guarantee, any of the rights or defences of a
surety.
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3.2
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Waiver of rights and
defences. Without limiting the generality of Clause 3.1,
the Guarantor shall neither be discharged by, nor have any claim against
the Lender in respect of:
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(a)
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any
amendment or supplement being made to the Finance
Documents;
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(b)
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any
arrangement or concession (including a rescheduling or acceptance of
partial payments) relating to, or affecting, the Finance
Documents;
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(c)
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any
release or loss (even though negligent) of any right or Security Interest
created by the Finance Documents;
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(d)
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any
failure (even though negligent) promptly or properly to exercise or
enforce any such right or Security Interest, including a failure to
realise for its full market value an asset covered by such a Security
Interest; or
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(e)
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any
other Finance Document or any Security Interest now being or later
becoming void, unenforceable, illegal or invalid or otherwise defective
for any reason, including a neglect to register
it.
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4
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EXPENSES
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4.1
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Costs of preservation of
rights, enforcement etc. The Guarantor shall pay to the
Lender on its demand the amount of all expenses incurred by the Lender in
connection with any matter arising out of this Guarantee, including any
advice, claim or proceedings relating to this
Guarantee.
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4.2
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Fees and expenses payable under
Loan Agreement. Clause 4.1 is without prejudice to the
Guarantor's liabilities in respect of the Borrower’s obligations under
clause 14 of the Loan Agreement (fees and expenses) and under similar
provisions of other Finance
Documents.
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5
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ADJUSTMENT
OF TRANSACTIONS
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5.1
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Reinstatement of obligation to
pay. The Guarantor shall pay to the Lender on its demand
any amount which the Lender is required, or agrees, to pay pursuant to any
claim by, or settlement with, a trustee in bankruptcy of the Borrower or
of another Security Party (or similar person) on the ground that the Loan
Agreement or a payment by the Borrower or of another Security Party, was
invalid or on any similar ground.
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6
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PAYMENTS
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6.1
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Method of
payments. Any amount due under this Guarantee shall be
paid:
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(a)
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in
immediately available funds;
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(b)
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to
such account as the Lender may from time to time notify to the
Guarantor;
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(c)
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without
any form of set-off, cross-claim or condition;
and
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(d)
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free
and clear of any tax deduction except a tax deduction which the Guarantor
is required by law to make.
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6.2
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Grossing-up for
taxes. If the Guarantor is required by law to make a tax
deduction, the amount due to the Lender shall be increased by the amount
necessary to ensure that the Lender receives and retains a net amount
which, after the tax deduction, is equal to the full amount that it would
otherwise have received.
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7
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INTEREST
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7.1
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Accrual of
interest. Any amount due under this Guarantee shall
carry interest after the second Business Day following the date on which
the Lender demands payment of it until it is actually paid, unless
interest on that same amount also accrues under the Loan
Agreement.
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7.2
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Calculation of
interest. Interest under this Guarantee shall be
calculated and accrue in the same way as interest under clause 7 of the
Loan Agreement.
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7.3
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Guarantee extends to interest
payable under Loan Agreement. For the avoidance of
doubt, it is confirmed that this Guarantee covers all interest payable
under the Loan Agreement, including that payable under clause 7 of the
Loan Agreement.
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8
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SUBORDINATION
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8.1
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Subordination of rights of
Guarantor. All rights which the Guarantor at any time
has (whether in respect of this Guarantee or any other transaction)
against the Borrower, any other Security Party or their respective assets
shall be fully subordinated to the rights of the Lender under the Finance
Documents and in particular, the Guarantor shall
not:
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(a)
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claim,
or in a bankruptcy of the Borrower or any other Security Party prove for,
any amount payable to the Guarantor by the Borrower or any other Security
Party, whether in respect of this Guarantee or any other
transaction;
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(b)
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take
or enforce any Security Interest for any such
amount;
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(c)
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claim
to set-off any such amount against any amount payable by the Guarantor to
the Borrower or any other Security Party;
or
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(d)
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claim
any subrogation or other right in respect of any Finance Document or any
sum received or recovered by the Lender under a Finance
Document.
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9
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ENFORCEMENT
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9.1
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No requirement to commence
proceedings against the Borrower. The Lender will not
need to commence any proceedings under, or enforce any Security Interest
created by, the Loan Agreement or any other Finance Document before
claiming or commencing proceedings under this
Guarantee.
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9.2
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Conclusive evidence of certain
matters. However, as against the
Guarantor:
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(a)
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any
judgment or order of a court in England, Germany, the Xxxxxxxx Islands,
Bermuda or Ireland in connection with the Loan Agreement;
and
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(b)
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any
statement or admission of the Borrower in connection with the Loan
Agreement,
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shall
be binding and conclusive as to all matters of fact and law to which it
relates.
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9.3
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Suspense
account. The Lender may, for the purpose of claiming or
proving in a bankruptcy of the Borrower or any other Security Party, place
any sum received or recovered under or by virtue of this Guarantee on a
separate suspense or other interest bearing nominal account without
applying it in satisfaction of the Borrower’s obligations under the Loan
Agreement.
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10
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REPRESENTATIONS
AND WARRANTIES
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10.1
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General. The
Guarantor represents and warrants to the Lender as
follows.
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10.2
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Status. The
Guarantor is duly incorporated and validly existing under the laws of
Ireland.
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10.3
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Corporate
power. The Guarantor has the corporate capacity, and has
taken all corporate action and obtained all consents necessary for
it:
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(a)
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to
execute this Guarantee; and
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(b)
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to
make all the payments contemplated by, and to comply with, this
Guarantee.
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10.4
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Consents in
force. All the consents referred to in Clause 10.3
remain in force and nothing to the best of the Guarantor’s knowledge and
belief has occurred which makes any of them liable to
revocation.
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10.5
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Legal
validity. This Guarantee constitutes the Guarantor's
legal, valid and binding obligations enforceable against the Guarantor in
accordance with its terms subject to any relevant insolvency laws
affecting creditors' rights generally and subject to any qualification as
to matters of law which are specifically referred to in any legal opinion
delivered to the Lender pursuant to the Supplemental
Agreement.
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10.6
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No
conflicts. The execution by the Guarantor of this
Guarantee and its compliance with this Guarantee will not involve or lead
to a contravention of:
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(a)
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any
law or regulation in force at the date of the Guarantee;
or
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(b)
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the
constitutional documents of the Guarantor;
or
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(c)
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any
contractual or other obligation or restriction which is binding on the
Guarantor or any of its assets.
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10.7
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No withholding
taxes. No tax is imposed in any jurisdiction in which
the Guarantor is ordinarily resident for tax by way of withholding or
deduction or otherwise on any payment to be under this
Agreement.
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10.8
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No
default. To the knowledge of the Guarantor, no Event of
Default or Potential Event of Default has occurred and is
continuing.
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10.9
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Information. All
information which has been provided in writing by or on behalf of the
Guarantor to the Lender in connection with any Finance Document was to the
best of the Guarantor’s knowledge and belief true and not misleading as at
the time it was given; all audited and unaudited accounts which have been
so provided satisfied the requirements of Clause 11.4; and there has been
no material adverse change in the financial position or state of affairs
of the Guarantor from that disclosed in the latest of those
accounts.
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10.10
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No
litigation. No legal or administrative action involving
the Guarantor has been commenced or taken or, to the Guarantor's
knowledge, is likely to be commenced or taken which, in either case, would
be likely to have a material adverse effect on the Guarantor's financial
position or profitability.
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11
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UNDERTAKINGS
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11.1
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General. The
Guarantor undertakes with the Lender to comply with the following
provisions of this Clause 11 at all times during the Security Period,
except as the Lender may otherwise
permit.
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11.2
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Information provided to be
accurate. All financial and other information which is
provided in writing by or on behalf of the Guarantor under or in
connection with this Guarantee will, to the best of the Guarantor’s
knowledge and belief, be true and not misleading and will not omit any
material fact or consideration which if disclosed would reasonably be
expected to adversely affect the decision of a person considering whether
to enter into the Loan Agreement.
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11.3
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Shareholder and creditor
notices. The Guarantor will send the Lender, at the same
time as they are despatched, copies of all communications which are
despatched to the Guarantor's shareholders or creditors or any class of
them.
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11.4
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Consents. The
Guarantor will maintain in force and promptly obtain or renew, and will
promptly send certified copies to the Lender of, all consents
required:
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(a)
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for
the Guarantor to perform its obligations under this
Guarantee;
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(b)
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for
the validity or enforceability of this
Guarantee;
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and the
Guarantor will comply with the terms of all such consents.
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11.5
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Further
Assurance. The Guarantor
will:
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(a)
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at
its own cost, do all that it reasonably can to ensure that this Guarantee
creates the obligations which it purports to create;
and
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(b)
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without
limiting the generality of paragraph (a) above, at its own cost, promptly
register, file, record or enrol this Guarantee with any applicable court
or authority, pay any applicable stamp, registration or similar tax in
respect of this Guarantee, give any notice or take any other step which in
the reasonable opinion of the Lender, is or has become necessary or
desirable for this Guarantee to be valid, enforceable or admissible in
evidence.
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11.6
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Notification of
litigation. The Guarantor will provide the Lender with
details of any legal or administrative action involving the Guarantor
promptly upon becoming aware of the same where such legal or
administrative action might, if adversely determined, have a material
adverse effect on the ability of the Guarantor to perform its obligations
under this Guarantee.
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11.7
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Notification of
default. The Guarantor will notify the Lender as soon as
the Guarantor becomes aware of:
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(a)
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the
occurrence of an Event of Default or a Potential Event of Default;
or
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(b)
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any
matter which indicates that an Event of Default or a Potential Event of
Default may have occurred and is
continuing;
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and will
thereafter keep the Lender fully up-to-date with all developments.
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11.8
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Maintenance of
status. The Guarantor will maintain its separate
corporate existence under the laws of
Ireland.
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11.9
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No disposal of assets, change
of business. The Guarantor will
not:
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(a)
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transfer,
lease or otherwise dispose of all or a substantial part of its assets,
whether by one transaction or a number of transactions, whether related or
not except in the usual course of its trading operations;
or
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(b)
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make
any substantial change to the nature of its business from that existing at
the date of this Guarantee.
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11.10
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No merger
etc. The Guarantor shall not, and shall procure that
none of its subsidiaries will, enter into any form of merger,
sub-division, amalgamation or other
reorganisation.
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11.11
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Chief Executive
Office. The Guarantor will maintain its chief executive
office, and keep its corporate documents and records, at Xxxxxx Xxx
Building, Earlsfort Terrace, Dublin 2,
Ireland.
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12
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JUDGMENTS
AND CURRENCY INDEMNITY
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12.1
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Judgments relating to Loan
Agreement. This Guarantee shall cover any amount payable
by the Borrower under or in connection with any judgment relating to the
Loan Agreement.
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13
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SET-OFF
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13.1
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Application of credit
balances. The Lender may without prior notice following
the occurrence of an Event of Default which is
continuing:
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(a)
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apply
any balance (whether or not then due) which at any time stands to the
credit of any account in the name of the Guarantor at any office in any
country of the Lender in or towards satisfaction of any sum then due from
the Guarantor to the Lender under this Guarantee;
and
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(b)
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for
that purpose:
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(i)
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break,
or alter the maturity of, all or any part of a deposit of the
Guarantor;
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(ii)
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convert
or translate all or any part of a deposit or other credit balance into
Dollars;
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(iii)
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enter
into any other transaction or make any entry with regard to the credit
balance which the Lender considers
appropriate.
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13.2
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Existing rights
unaffected. The Lender shall not be obliged to exercise
any of its rights under Clause 13.1; and those rights shall be without
prejudice and in addition to any right of set-off, combination of
accounts, charge, lien or other right or remedy to which the Lender is
entitled (whether under the general law or any
document).
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14
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SUPPLEMENTAL
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14.1
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Continuing
guarantee. This Guarantee shall remain in force as a
continuing security at all times during the Security
Period.
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14.2
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Rights cumulative,
non-exclusive. The Lender's rights under and in
connection with this Guarantee are cumulative, may be exercised as often
as appears expedient and shall not be taken to exclude or limit any right
or remedy conferred by law.
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14.3
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No impairment of rights under
Guarantee. If the Lender omits to exercise, delays in
exercising or invalidly exercises any of its rights under this Guarantee,
that shall not impair that or any other right of the Lender under this
Guarantee.
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14.4
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Severability of
provisions. If any provision of this Guarantee is or
subsequently becomes void, illegal, unenforceable or otherwise invalid,
that shall not affect the validity, legality or enforceability of its
other provisions.
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14.5
|
Guarantee not affected by other
security. This Guarantee shall not impair, nor be
impaired by, any other guarantee, any Security Interest or any right of
set-off or netting or to combine accounts which the Lender may now or
later hold in connection with the Loan
Agreement.
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14.6
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Guarantor bound by Loan
Agreement. The Guarantor agrees with the Lender to be
bound by all provisions of the Loan Agreement which are applicable to the
Security Parties in the same way as if those provisions had been set out
(with any necessary modifications) in this
Guarantee.
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14.7
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Applicability of provisions of
Guarantee to other rights. Clauses 3 and 17 shall also
apply to any right of set-off or netting or to combine accounts which the
Guarantor creates by an agreement entered into at the time of this
Guarantee or at any later time (notwithstanding that the agreement does
not include provisions similar to Clauses 3 and 17), being an agreement
referring to this Guarantee.
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14.8
|
Third party
rights. A person who is not a party to this Guarantee
has no right under the Contracts (Rights of Third Parties) Act 1999 to
enforce or to enjoy the benefit of any term of this
Guarantee.
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15
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ASSIGNMENT
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15.1
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Assignment by
Xxxxxx. The Lender may assign its rights under and in
connection with this Guarantee to the same extent as it may assign its
rights under the Loan Agreement.
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16
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NOTICES
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16.1
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Notices to
Guarantor. Any notice or demand to the Guarantor under
or in connection with this Guarantee shall be given by letter or fax
at:
|
TBS
International Public Limited Company
Xxxxxx
Xxx Building
Earlsfort
Terrace
Dublin
2
Ireland
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|
Fax
No: x000 0 000 0000
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or to such other address which the
Guarantor may notify to the Lender.
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16.2
|
Application of certain
provisions of Loan Agreement. Clause 19.1 of the Loan
Agreement applies to any notice or demand under or in connection with this
Guarantee.
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16.3
|
Validity of
demands. A demand under this Guarantee shall be valid
notwithstanding that it is served:
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(a)
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on
the date on which the amount to which it relates is payable by the
Borrower under the Loan Agreement;
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(b)
|
at
the same time as the service of a notice under clause 13.2 (events of
default) of the Loan Agreement;
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and a
demand under this Guarantee may refer to all amounts payable under or in
connection with the Loan Agreement without specifying a particular sum or
aggregate sum.
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16.4
|
Notices to the
Lender. Any notice to the Lender under or in connection
with this Guarantee shall be sent to the same address and in the same
manner as notices to the Lender under the Loan
Agreement.
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17
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INVALIDITY
OF LOAN AGREEMENT
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|
17.1
|
Invalidity of Loan
Agreement. In the event
of:
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(a)
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the
Loan Agreement now being or later becoming, with immediate or
retrospective effect, void, illegal, unenforceable or otherwise invalid
for any other reason whatsoever, whether of a similar kind or not;
or
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(b)
|
without
limiting the scope of paragraph (a), bankruptcy of the
Borrower, the introduction of any law or any other matter resulting in the
Borrower being discharged from liability under the Loan Agreement, or the
Loan Agreement ceasing to operate (for example, by interest ceasing to
accrue);
|
this
Guarantee shall cover any amount which would have been or become payable under
or in connection with the Loan Agreement if the Loan Agreement had been and
remained entirely valid, legal and enforceable, or the Borrower had not suffered
bankruptcy, or any combination of such events or circumstances, as the case may
be, and the Borrower had remained fully liable under it for liabilities whether
invalidly incurred or validly incurred but subsequently retrospectively
invalidated; and references in this Guarantee to amounts payable by
the Borrower under or in connection with the Loan Agreement shall include
references to any amount which would have so been or become payable as
aforesaid.
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17.2
|
Invalidity of Finance
Documents. Clause 17.1 also applies to each of the other
Finance Documents to which the Borrower is a
party.
|
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18
|
GOVERNING
LAW AND JURISDICTION
|
|
18.1
|
English
law. This Guarantee and any non-contractual obligations
arising out of or in connection with it shall be governed by, and
construed in accordance with, English
law.
|
|
18.2
|
Exclusive English
jurisdiction. Subject to Clause 18.3, the courts of
England shall have exclusive jurisdiction to settle any disputes which may
arise out of or in connection with this
Guarantee.
|
|
18.3
|
Choice of forum for the
exclusive benefit of the Lender. Clause 18.2 is for the
exclusive benefit of the Lender, which reserves the
rights:
|
|
(a)
|
to
commence proceedings in relation to any matter which arises out of or in
connection with this Guarantee in the courts of any country other than
England and which have or claim jurisdiction to that matter;
and
|
|
(b)
|
to
commence such proceedings in the courts of any such country or countries
concurrently with or in addition to proceedings in England or without
commencing proceedings in England.
|
The
Guarantor shall not commence any proceedings in any country other than England
in relation to a matter which arises out of or in connection with this
Guarantee.
|
18.4
|
Process
agent. The Guarantor irrevocably appoints Xxxxx X.
Xxxxxx, its registered office for the time being, presently at Globe
Maritime Limited, St. Magnus House, 5th
Floor, 0 Xxxxx Xxxxxx Xxxxxx, Xxxxxx, XX0X X0XX, Xxxxxx Xxxxxxx, to act as
its agent to receive and accept on its behalf any process or other
document relating to any proceedings in the English courts which are
connected with this Guarantee.
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|
18.5
|
Xxxxxx’s rights
unaffected. Nothing in this Clause 18 shall exclude or
limit any right which the Lender may have (whether under the law of any
country, an international convention or otherwise) with regard to the
bringing of proceedings, the service of process, the recognition or
enforcement of a judgment or any similar or related matter in any
jurisdiction.
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|
18.6
|
Meaning of
“proceedings”. In this Clause 18, “proceedings” means
proceedings of any kind, including an application for a provisional or
protective measure.
|
THIS GUARANTEE has been
executed and delivered as a deed on the date stated at the beginning of this
Guarantee.
EXECUTION
PAGE
|
GUARANTOR
|
||
|
SIGNED SEALED AND
DELIVERED
|
)
|
|
|
by
Xxxxxxxxxxx X. Xxxxxx
|
)
|
/s/
Xxxxxxxxxxx X. Xxxxxx
|
|
acting
as lawfully appointed attorney of
|
)
|
|
|
TBS
International Public Limited Company
|
)
|
|
|
in
the presence of:
|
)
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/s/
Xxxxxxxx Xxxxx
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|
Xxxxxxxx
Xxxxx
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||
|
LENDER
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||
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SIGNED
by
|
)
|
|
|
for
and on behalf of
|
)
|
|
|
Joh.
Xxxxxxxxx, Xxxxxxx & Co. KG
|
)
|
|
|
in
the presence of:
|
)
|
