UNSECURED GUARANTY
TBS
INTERNATIONAL PLC & SUBSIDIARIES EXHIBIT
10.20
AMOROS
MARITIME CORP.
UNSECURED GUARANTY (“Guaranty”), dated
as of the 7th day of January, 2010 made by TBS International Public Limited
Company, an Irish public limited company (the “Guarantor”), in favor of AIG
Commercial Equipment Finance, Inc., a Delaware corporation
(“Lender”).
WHEREAS, Xxxxxx has made, or
will make, loans, additional advances or other financial accommodations to
Amoros Maritime Corp., a Xxxxxxxx Islands corporation (the “Borrower”) in the
principal amount of US$9,000,000.00 (the “Loan”) , and other borrowers in
connection and in accordance with that certain Loan Agreement dated February 29,
2008 between the Borrower, the other borrowers and guarantors named therein and
the Lender, as amended by a First Amendment to Loan Agreement dated March 27,
2009, and by that certain Second Amendment to Loan Agreement dated December 30,
2009 (as further amended, supplemented or otherwise modified from time to time,
the “Loan Agreement”), the Promissory Note in the principal amount of the Loan
by Borrower (the “Note”), the Ship Mortgage by Xxxxxxxx, the other Loan
Documents by Borrower, and various other agreements, notes, leases or other
documents or instruments by Xxxxxxxx in favor of Xxxxxx, whether heretofore, now
or hereafter executed (collectively, together with any amendments thereto and
renewals, refinancings and replacements therefore, the “Agreements”);
and
WHEREAS, it is a condition to
the financing provided by, or the acquisition of the rights transferred to,
Lender under the Agreements that Guarantor, who has a financial interest in
Borrower, shall have executed and delivered this Guaranty.
NOW, THEREFORE, in
consideration of the premises and to induce Lender to enter into or become a
party to the Agreements, Guarantor hereby agrees as follows:
SECTION 1. Guaranty. Guarantor hereby
absolutely, unconditionally and irrevocably guarantees, jointly and severally,
the prompt and punctual payment and due performance and observance of all
obligations of Borrower now or hereafter existing under the Agreements, which
may in any manner whatsoever be presently or hereafter due and owing, including
without limitation, the payment of all amounts now or hereafter due from
Borrower under the Note, the Loan Agreement and the other Agreements
(collectively, the “Obligations”).
SECTION 2. Guaranty
Absolute. Guarantor jointly
and severally guarantees that the Obligations will be paid, performed and
observed strictly in accordance with the terms of the Agreements, regardless of
any law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of Lender with respect
thereto. The liability of Guarantor under this Guaranty shall be
absolute and unconditional irrespective of:
(i) any
lack of validity, regularity or enforceability of any of the Agreements or any
other agreement or instrument relating thereto;
(ii) any
lack of validity, regularity or enforceability of this Guaranty or any other
agreement or instrument relating hereto;
(iii) any
modification or change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other modification, change,
amendment or waiver of or any consent to departure from any term of any of the
Agreements;
(iv) any
exchange, release or non-perfection of any collateral, or any release or
amendment or waiver of or consent to departure from any other guaranty, for all
or any of the Obligations;
(v) any
failure on the part of Lender or any other person or entity to exercise, or any
delay in exercising, any right under the Agreements or any other document or
instrument delivered in connection therewith; or
(vi) any
other circumstance which might otherwise constitute a defense available to, or a
discharge of, Borrower, the Guarantor or any other guarantor with respect to the
Obligations (including, without limitation, all defenses based on suretyship or
impairment of collateral, and all defenses that Borrower may assert to the
repayment of the Obligations, including, without limitation, failure of
consideration, breach of warranty, fraud, payment, statute of frauds,
bankruptcy, lack of legal capacity, statute of limitations, lender liability,
accord and satisfaction, and usury), this Guaranty and the obligations of the
Guarantor under this Guaranty.
Guarantor
hereby agrees that if Borrower or any other guarantor of all or a portion of the
Obligations is the subject of a bankruptcy proceeding or similar proceeding
under Title 11 of the U.S. Code or any similar legislation relating to
bankruptcy or insolvency, it will not assert the pendency of such proceeding or
any order entered therein as a defense to the timely payment of the
Obligations. This Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the
Obligations is rescinded or must otherwise be returned by Lender upon the
insolvency, bankruptcy or reorganization of Borrower or otherwise, all as though
such payment had not been made.
Guarantor’s
obligations and liability under this Guaranty shall be on a “joint and several”
basis along with Borrower to the same degree and extent as if Guarantor had been
and/or will be a co-principal obligor of the Obligations. In the
event that there is more than one Guarantor under this Guaranty, or in the event
that there are other guarantors, endorsers or sureties of all or any portion of
the Obligations, Guarantor’s obligations and liability hereunder shall further
be on a “joint and several” basis along with such other guarantors, endorsers
and/or sureties.
SECTION 3. Waivers. Guarantor hereby
waives:
(i) promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations and this Guaranty;
(ii) any
requirement that Lender protect, secure, perfect or insure any security interest
or lien on any property subject thereto or exhaust any right to take any action
against Borrower or any other person or entity or any collateral;
(iii) any
right to receive notice of any disposition or retention by Lender of any
collateral and right of redemption relating to any collateral.
(iv) any
right to demand or require collateral security from Borrower or any other person
as provided under applicable law or otherwise;
(v) any
modification or amendment of the Obligations or any of the Agreements, or the
impairment of real security held for such Obligations, by Lender as provided
under applicable law or otherwise.
(vi) notice
of Xxxxxx’s acceptance of this Guaranty;
(vii) presentment
for payment of the Obligations, notice of dishonor and of nonpayment, notice of
intention to accelerate, notice of acceleration, protest and notice of protest,
collection or institution of any suit or other action by Xxxxxx in collection
thereof, including any notice of default in payment thereof, or other notice to,
or demand for payment thereof, on any party;
(viii) any
right to require Lender to notify Guarantor of any nonpayment relating to any
collateral directly or indirectly securing the Obligations, or notice of any
action or nonaction on the part of Borrower, Lender, or any other guarantor,
surety or endorser of the Obligations, or notice of the creation of any new or
additional Obligations subject to this Guaranty;
(ix) any
right to require Lender to notify Guarantor of the terms, time and place of any
public or private sale of any collateral directly or indirectly securing the
Obligations;
(x) any
election of remedies by Xxxxxx that may destroy or impair Guarantor’s
subrogation rights or Guarantor’s right to proceed for reimbursement against
Borrower or any other guarantor, surety or endorser of the Obligations,
including without limitation, any loss of rights Guarantor may suffer by reason
of any law limiting, qualifying, or discharging the Obligations;
(xi) any
disability or other defense of Borrower, or any other guarantor, surety or
endorser, or any other person, or by reason of the cessation from any cause
whatsoever, other than payment in full of the Obligations; and
(xii) any
statute of limitations or prescriptive period, if at the time an action or suit
brought by Lender against Guarantor is commenced, there are any outstanding
Obligations which are barred by any applicable statute of limitations or
prescriptive period.
SECTION 4. Subrogation. Guarantor hereby
agrees it will not exercise any rights which it may acquire by way of
subrogation under this Guaranty, by any payment made hereunder or otherwise,
until all the Obligations shall have been paid in full. If any amount
shall be paid to the Guarantor on account of such subrogation rights at any
time when all the Obligations shall not have been paid in full, such amount
shall be held in trust for the benefit of Lender and shall forthwith be paid to
Lender to be credited and applied upon the Obligations, whether matured or
unmatured, in accordance with the terms of the Agreements. If
(i) the Guarantor shall make payment to Lender of all or any part of the
Obligations and (ii) all the Obligations shall be paid, performed and observed
in full, Lender will, at the Guarantor’s request, execute and deliver to the
Guarantor appropriate documents, without recourse and without representation or
warranty, necessary to evidence the transfer by subrogation to the Guarantor of
an interest in the Obligations resulting from such payment by the
Guarantor.
SECTION 5. Representations
and Warranties. Guarantor hereby
represents and warrants as follows:
(a) Due Execution,
Etc. The execution, delivery and performance (including the
incurrence of the Obligations hereunder) by the Guarantor of this Guaranty do
not and will not (i) contravene Guarantor’s organizational documents or 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, or (ii) result in or require the creation or imposition
of any lien (other than pursuant hereto) upon or with respect to any of the
Guarantor’s properties. The Guarantor has been duly formed and is in
good standing in its jurisdiction of organization and is duly qualified as a
foreign business entity in all jurisdictions where it must be qualified pursuant
to applicable law. 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 Guarantor or on the ability of the Guarantor to
carry out its obligations under this Guaranty.
(b) 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.
(c) 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.
(d) Solvency. The
fair value of the property of the Guarantor exceeds the total amount of
liabilities (including, without limitation, contingent liabilities) of the
Guarantor; the present fair market 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.
(e) 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 the properties of the Guarantor
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. There are
no actions, suits, investigations, litigation or proceedings pending or
threatened against or affecting the Guarantor or its affiliates or subsidiaries
of the Guarantor or the properties of the Guarantor or its affiliates or
subsidiaries before any court, arbitrator or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign which,
if determined adversely to the Guarantor, would have a Material Adverse Effect
on the financial condition or continued operation of Guarantor or its affiliates
or subsidiaries on a consolidated basis or any part of the transactions
contemplated hereby or by the Agreements.
(f) Payment of
Taxes. The Guarantor has filed all tax returns (federal,
provincial, 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 6. Integration. This Guaranty
together with the Loan Documents constitutes the entire agreement and
understanding between Lender and 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,
Guarantor acknowledges that it is relying on no statement, representation,
warranty, covenant or agreement of any kind made by Lender or any employee or
agent of Lender.
SECTION 7. Amendments,
Etc. No amendment or
waiver of any provision of this Guaranty or consent to any departure by the
Guarantor herefrom shall in any event be effective unless the same shall be in
writing and signed by Xxxxxx, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which
given.
SECTION 8. Addresses
for Notices. All notices,
requests, demands and other communications provided for hereunder shall be in
writing and sent in accordance with the terms and conditions of the Loan
Agreement.
SECTION 9. No
Waiver; Remedies. No failure on the
part of Lender to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law or in any of the
Agreements or other Loan Documents.
SECTION 10. Right of
Set-off. Upon the
occurrence and during the continuance of any Event of Default Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by Lender to or for the credit or the account of the Guarantor
against any and all of the obligations of the Guarantor now or hereafter
existing under this Guaranty, irrespective of whether or not Lender shall have
made any demand under this Guaranty and although such obligations may be
contingent and unmatured. Xxxxxx agrees promptly to notify the
Guarantor after any such set-off and application, provided that the failure to
give such notice shall not affect the validity of such set-off and
application. The rights of Lender under this Section are in addition
to the other rights and remedies (including, without limitation, other rights of
set-off) which Lender may have.
SECTION 11. 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 Lender and its successors,
transferees and assigns. Without limiting the generality of the
foregoing clause (iii), 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 Lender herein or otherwise.
SECTION 12. Indemnification. Guarantor hereby
agrees, jointly and severally, to indemnify and hold harmless Lender and its
affiliates and their respective directors, officers, employees and agents,
including all professionals (each an “Indemnified Party”) from and against any
and all expenses, losses, claims, damages and liabilities (including, without
limitation, all legal fees and disbursements of attorneys and other
professionals incurred by or asserted against any Indemnified Party in
connection with or arising out of, relating to, or by reason of any
investigation, litigation or proceeding arising out of, relating to or in
connection with any claims made by any person or entity in any way relating to
this Guaranty or the transactions contemplated hereby, but excluding therefrom
all expenses, losses, claims, damages, and liabilities arising out of or
resulting from the gross negligence or willful misconduct of any Indemnified
Party.
SECTION 13. GOVERNING
LAW. THIS GUARANTY AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL IN ALL RESPECTS BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH STATE),
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
SECTION 14. JUDICIAL
PROCEEDINGS. GUARANTOR AND, BY
ITS ACCEPTANCE HEREOF, XXXXXX, HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS GUARANTY AND
AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A
JURY. THE PARTIES AGREE THAT ANY ACTION OR PROCEEDING ARISING UNDER
OR RELATED TO THIS GUARANTY MAY BE COMMENCED IN ANY FEDERAL OR STATE COURT
SITTING IN THE SOUTHERN DISTRICT OF NEW YORK AND THE PARTIES IRREVOCABLY SUBMIT
TO THE JURISDICTION OF EACH SUCH COURT AND AGREE NOT TO ASSERT, BY WAY OF
MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY
CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURT, THAT
THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE
VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER, OR THAT THE AGREEMENT OR
THE SUBJECT MATTER THEREOF OR THE TRANSACTION CONTEMPLATED HEREBY OR THEREBY MAY
NOT BE ENFORCED IN OR BY SUCH COURT. THE
GUARANTOR AND XXXXXX AGREE THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 15. DEFINITIONS. Capitalized terms
used but not defined herein shall have the meanings set forth in the Loan
Agreement.
SECTION 16. COLLATERAL. Guarantor hereby
waives any and all rights to claim a lien or other security interest in and to
any of the Vessels securing the obligations arising under the Loan
Agreement. In the event of any Event of Default, Guarantor shall
waive any possessory or other right in and to all such Vessels.
[
signature pages follow ]
IN WITNESS WHEREOF, the
Guarantor has executed this Guaranty as of the date first above
written.
GUARANTOR:
PRESENT
WHEN THE COMMON SEAL OF
TBS
INTERNATIONAL PUBLIC LIMITED COMPANY,
an
Irish public limited company, was affixed hereto
By: /s/
Xxxxxxxxxxx X. Xxxxxx
Name:
Xxxxxxxxxxx X. Xxxxxx
Title:
Attorney-in-Fact
LANCASTER
MARITIME CORP.
UNSECURED GUARANTY (“Guaranty”), dated
as of the 7th day of January, 2010 made by TBS International Public Limited
Company, an Irish public limited company (the “Guarantor”), in favor of AIG
Commercial Equipment Finance, Inc., a Delaware corporation
(“Lender”).
WHEREAS, Xxxxxx has made, or
will make, loans, additional advances or other financial accommodations to
Lancaster Maritime Corp., a Xxxxxxxx Islands corporation (the “Borrower”) in the
principal amount of US$13,000,000.00 (the “Loan”) , and other borrowers in
connection and in accordance with that certain Loan Agreement dated February 29,
2008 between the Borrower, the other borrowers and guarantors named therein and
the Lender, as amended by a First Amendment to Loan Agreement dated March 27,
2009, and by that certain Second Amendment to Loan Agreement dated December 30,
2009 (as further amended, supplemented or otherwise modified from time to time,
the “Loan Agreement”), the Promissory Note in the principal amount of the Loan
by Borrower (the “Note”), the Ship Mortgage by Borrower, the other Loan
Documents by Borrower, and various other agreements, notes, leases or other
documents or instruments by Borrower in favor of Lender, whether heretofore, now
or hereafter executed (collectively, together with any amendments thereto and
renewals, refinancings and replacements therefore, the “Agreements”);
and
WHEREAS, it is a condition to
the financing provided by, or the acquisition of the rights transferred to,
Lender under the Agreements that Guarantor, who has a financial interest in
Borrower, shall have executed and delivered this Guaranty.
NOW, THEREFORE, in
consideration of the premises and to induce Lender to enter into or become a
party to the Agreements, Guarantor hereby agrees as follows:
SECTION 1. Guaranty. Guarantor hereby
absolutely, unconditionally and irrevocably guarantees, jointly and severally,
the prompt and punctual payment and due performance and observance of all
obligations of Borrower now or hereafter existing under the Agreements, which
may in any manner whatsoever be presently or hereafter due and owing, including
without limitation, the payment of all amounts now or hereafter due from
Borrower under the Note, the Loan Agreement and the other Agreements
(collectively, the “Obligations”).
SECTION 2. Guaranty
Absolute. Guarantor jointly
and severally guarantees that the Obligations will be paid, performed and
observed strictly in accordance with the terms of the Agreements, regardless of
any law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of Lender with respect
thereto. The liability of Guarantor under this Guaranty shall be
absolute and unconditional irrespective of:
(i) any
lack of validity, regularity or enforceability of any of the Agreements or any
other agreement or instrument relating thereto;
(ii) any
lack of validity, regularity or enforceability of this Guaranty or any other
agreement or instrument relating hereto;
(iii) any
modification or change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other modification, change,
amendment or waiver of or any consent to departure from any term of any of the
Agreements;
(iv) any
exchange, release or non-perfection of any collateral, or any release or
amendment or waiver of or consent to departure from any other guaranty, for all
or any of the Obligations;
(v) any
failure on the part of Lender or any other person or entity to exercise, or any
delay in exercising, any right under the Agreements or any other document or
instrument delivered in connection therewith; or
(vi) any
other circumstance which might otherwise constitute a defense available to, or a
discharge of, Borrower, the Guarantor or any other guarantor with respect to the
Obligations (including, without limitation, all defenses based on suretyship or
impairment of collateral, and all defenses that Borrower may assert to the
repayment of the Obligations, including, without limitation, failure of
consideration, breach of warranty, fraud, payment, statute of frauds,
bankruptcy, lack of legal capacity, statute of limitations, lender liability,
accord and satisfaction, and usury), this Guaranty and the obligations of the
Guarantor under this Guaranty.
Guarantor
hereby agrees that if Borrower or any other guarantor of all or a portion of the
Obligations is the subject of a bankruptcy proceeding or similar proceeding
under Title 11 of the U.S. Code or any similar legislation relating to
bankruptcy or insolvency, it will not assert the pendency of such proceeding or
any order entered therein as a defense to the timely payment of the
Obligations. This Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the
Obligations is rescinded or must otherwise be returned by Lender upon the
insolvency, bankruptcy or reorganization of Borrower or otherwise, all as though
such payment had not been made.
Guarantor’s
obligations and liability under this Guaranty shall be on a “joint and several”
basis along with Borrower to the same degree and extent as if Guarantor had been
and/or will be a co-principal obligor of the Obligations. In the
event that there is more than one Guarantor under this Guaranty, or in the event
that there are other guarantors, endorsers or sureties of all or any portion of
the Obligations, Guarantor’s obligations and liability hereunder shall further
be on a “joint and several” basis along with such other guarantors, endorsers
and/or sureties.
SECTION 3. Waivers. Guarantor hereby
waives:
(i) promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations and this Guaranty;
(ii) any
requirement that Lender protect, secure, perfect or insure any security interest
or lien on any property subject thereto or exhaust any right to take any action
against Borrower or any other person or entity or any collateral;
(iii) any
right to receive notice of any disposition or retention by Lender of any
collateral and right of redemption relating to any collateral.
(iv) any
right to demand or require collateral security from Borrower or any other person
as provided under applicable law or otherwise;
(v) any
modification or amendment of the Obligations or any of the Agreements, or the
impairment of real security held for such Obligations, by Lender as provided
under applicable law or otherwise.
(vi) notice
of Xxxxxx’s acceptance of this Guaranty;
(vii) presentment
for payment of the Obligations, notice of dishonor and of nonpayment, notice of
intention to accelerate, notice of acceleration, protest and notice of protest,
collection or institution of any suit or other action by Xxxxxx in collection
thereof, including any notice of default in payment thereof, or other notice to,
or demand for payment thereof, on any party;
(viii) any
right to require Lender to notify Guarantor of any nonpayment relating to any
collateral directly or indirectly securing the Obligations, or notice of any
action or nonaction on the part of Borrower, Lender, or any other guarantor,
surety or endorser of the Obligations, or notice of the creation of any new or
additional Obligations subject to this Guaranty;
(ix) any
right to require Lender to notify Guarantor of the terms, time and place of any
public or private sale of any collateral directly or indirectly securing the
Obligations;
(x) any
election of remedies by Xxxxxx that may destroy or impair Guarantor’s
subrogation rights or Guarantor’s right to proceed for reimbursement against
Borrower or any other guarantor, surety or endorser of the Obligations,
including without limitation, any loss of rights Guarantor may suffer by reason
of any law limiting, qualifying, or discharging the Obligations;
(xi) any
disability or other defense of Borrower, or any other guarantor, surety or
endorser, or any other person, or by reason of the cessation from any cause
whatsoever, other than payment in full of the Obligations; and
(xii) any
statute of limitations or prescriptive period, if at the time an action or suit
brought by Lender against Guarantor is commenced, there are any outstanding
Obligations which are barred by any applicable statute of limitations or
prescriptive period.
SECTION 4. Subrogation. Guarantor hereby
agrees it will not exercise any rights which it may acquire by way of
subrogation under this Guaranty, by any payment made hereunder or otherwise,
until all the Obligations shall have been paid in full. If any amount
shall be paid to the Guarantor on account of such subrogation rights at any
time when all the Obligations shall not have been paid in full, such amount
shall be held in trust for the benefit of Lender and shall forthwith be paid to
Lender to be credited and applied upon the Obligations, whether matured or
unmatured, in accordance with the terms of the Agreements. If
(i) the Guarantor shall make payment to Lender of all or any part of the
Obligations and (ii) all the Obligations shall be paid, performed and observed
in full, Lender will, at the Guarantor’s request, execute and deliver to the
Guarantor appropriate documents, without recourse and without representation or
warranty, necessary to evidence the transfer by subrogation to the Guarantor of
an interest in the Obligations resulting from such payment by the
Guarantor.
SECTION 5. Representations
and Warranties. Guarantor hereby
represents and warrants as follows:
(a) Due Execution,
Etc. The execution, delivery and performance (including the
incurrence of the Obligations hereunder) by the Guarantor of this Guaranty do
not and will not (i) contravene Guarantor’s organizational documents or 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, or (ii) result in or require the creation or imposition
of any lien (other than pursuant hereto) upon or with respect to any of the
Guarantor’s properties. The Guarantor has been duly formed and is in
good standing in its jurisdiction of organization and is duly qualified as a
foreign business entity in all jurisdictions where it must be qualified pursuant
to applicable law. 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 Guarantor or on the ability of the Guarantor to
carry out its obligations under this Guaranty.
(b) 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.
(c) 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.
(d) Solvency. The
fair value of the property of the Guarantor exceeds the total amount of
liabilities (including, without limitation, contingent liabilities) of the
Guarantor; the present fair market 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.
(e) 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 the properties of the Guarantor
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. There are
no actions, suits, investigations, litigation or proceedings pending or
threatened against or affecting the Guarantor or its affiliates or subsidiaries
of the Guarantor or the properties of the Guarantor or its affiliates or
subsidiaries before any court, arbitrator or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign which,
if determined adversely to the Guarantor, would have a Material Adverse Effect
on the financial condition or continued operation of Guarantor or its affiliates
or subsidiaries on a consolidated basis or any part of the transactions
contemplated hereby or by the Agreements.
(f) Payment of
Taxes. The Guarantor has filed all tax returns (federal,
provincial, 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 6. Integration. This Guaranty
together with the Loan Documents constitutes the entire agreement and
understanding between Lender and 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,
Guarantor acknowledges that it is relying on no statement, representation,
warranty, covenant or agreement of any kind made by Lender or any employee or
agent of Lender.
SECTION 7. Amendments,
Etc. No amendment or
waiver of any provision of this Guaranty or consent to any departure by the
Guarantor herefrom shall in any event be effective unless the same shall be in
writing and signed by Xxxxxx, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which
given.
SECTION 8. Addresses
for Notices. All notices,
requests, demands and other communications provided for hereunder shall be in
writing and sent in accordance with the terms and conditions of the Loan
Agreement.
SECTION 9. No
Waiver; Remedies. No failure on the
part of Lender to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law or in any of the
Agreements or other Loan Documents.
SECTION 10. Right of
Set-off. Upon the
occurrence and during the continuance of any Event of Default Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by Lender to or for the credit or the account of the Guarantor
against any and all of the obligations of the Guarantor now or hereafter
existing under this Guaranty, irrespective of whether or not Lender shall have
made any demand under this Guaranty and although such obligations may be
contingent and unmatured. Xxxxxx agrees promptly to notify the
Guarantor after any such set-off and application, provided that the failure to
give such notice shall not affect the validity of such set-off and
application. The rights of Lender under this Section are in addition
to the other rights and remedies (including, without limitation, other rights of
set-off) which Lender may have.
SECTION 11. 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 Lender and its successors,
transferees and assigns. Without limiting the generality of the
foregoing clause (iii), 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 Lender herein or otherwise.
SECTION 12. Indemnification. Guarantor hereby
agrees, jointly and severally, to indemnify and hold harmless Lender and its
affiliates and their respective directors, officers, employees and agents,
including all professionals (each an “Indemnified Party”) from and against any
and all expenses, losses, claims, damages and liabilities (including, without
limitation, all legal fees and disbursements of attorneys and other
professionals incurred by or asserted against any Indemnified Party in
connection with or arising out of, relating to, or by reason of any
investigation, litigation or proceeding arising out of, relating to or in
connection with any claims made by any person or entity in any way relating to
this Guaranty or the transactions contemplated hereby, but excluding therefrom
all expenses, losses, claims, damages, and liabilities arising out of or
resulting from the gross negligence or willful misconduct of any Indemnified
Party.
SECTION 13. GOVERNING
LAW. THIS GUARANTY AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL IN ALL RESPECTS BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH STATE),
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
SECTION 14. JUDICIAL
PROCEEDINGS. GUARANTOR AND, BY
ITS ACCEPTANCE HEREOF, XXXXXX, HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS GUARANTY AND
AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A
JURY. THE PARTIES AGREE THAT ANY ACTION OR PROCEEDING ARISING UNDER
OR RELATED TO THIS GUARANTY MAY BE COMMENCED IN ANY FEDERAL OR STATE COURT
SITTING IN THE SOUTHERN DISTRICT OF NEW YORK AND THE PARTIES IRREVOCABLY SUBMIT
TO THE JURISDICTION OF EACH SUCH COURT AND AGREE NOT TO ASSERT, BY WAY OF
MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY
CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURT, THAT
THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE
VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER, OR THAT THE AGREEMENT OR
THE SUBJECT MATTER THEREOF OR THE TRANSACTION CONTEMPLATED HEREBY OR THEREBY MAY
NOT BE ENFORCED IN OR BY SUCH COURT. THE
GUARANTOR AND XXXXXX AGREE THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 15. DEFINITIONS. Capitalized terms
used but not defined herein shall have the meanings set forth in the Loan
Agreement.
SECTION 16. COLLATERAL. Guarantor hereby
waives any and all rights to claim a lien or other security interest in and to
any of the Vessels securing the obligations arising under the Loan
Agreement. In the event of any Event of Default, Guarantor shall
waive any possessory or other right in and to all such Vessels.
[
signature pages follow ]
IN WITNESS WHEREOF, the
Guarantor has executed this Guaranty as of the date first above
written.
GUARANTOR:
PRESENT
WHEN THE COMMON SEAL OF
TBS
INTERNATIONAL PUBLIC LIMITED COMPANY,
an
Irish public limited company, was affixed hereto
By: /s/
Xxxxxxxxxxx X. Xxxxxx
Name:
Xxxxxxxxxxx X. Xxxxxx
Title:
Attorney-in-Fact
CHATHAM
MARITIME CORP.
UNSECURED GUARANTY (“Guaranty”), dated
as of the 7th day of January, 2010 made by TBS International Public Limited
Company, an Irish public limited company (the “Guarantor”), in favor of AIG
Commercial Equipment Finance, Inc., a Delaware corporation
(“Lender”).
WHEREAS, Xxxxxx has made, or
will make, loans, additional advances or other financial accommodations to
Chatham Maritime Corp., a Xxxxxxxx Islands corporation (the “Borrower”) in the
principal amount of US$13,000,000.00 (the “Loan”) , and other borrowers in
connection and in accordance with that certain Loan Agreement dated February 29,
2008 between the Borrower, the other borrowers and guarantors named therein and
the Lender, as amended by a First Amendment to Loan Agreement dated March 27,
2009, and by that certain Second Amendment to Loan Agreement dated December 30,
2010 (as further amended, supplemented or otherwise modified from time to time,
the “Loan Agreement”), the Promissory Note in the principal amount of the Loan
by Borrower (the “Note”), the Ship Mortgage by Borrower, the other Loan
Documents by Borrower, and various other agreements, notes, leases or other
documents or instruments by Borrower in favor of Lender, whether heretofore, now
or hereafter executed (collectively, together with any amendments thereto and
renewals, refinancings and replacements therefore, the “Agreements”);
and
WHEREAS, it is a condition to
the financing provided by, or the acquisition of the rights transferred to,
Lender under the Agreements that Guarantor, who has a financial interest in
Borrower, shall have executed and delivered this Guaranty.
NOW, THEREFORE, in
consideration of the premises and to induce Lender to enter into or become a
party to the Agreements, Guarantor hereby agrees as follows:
SECTION 1. Guaranty. Guarantor hereby
absolutely, unconditionally and irrevocably guarantees, jointly and severally,
the prompt and punctual payment and due performance and observance of all
obligations of Borrower now or hereafter existing under the Agreements, which
may in any manner whatsoever be presently or hereafter due and owing, including
without limitation, the payment of all amounts now or hereafter due from
Borrower under the Note, the Loan Agreement and the other Agreements
(collectively, the “Obligations”).
SECTION 2. Guaranty
Absolute. Guarantor jointly
and severally guarantees that the Obligations will be paid, performed and
observed strictly in accordance with the terms of the Agreements, regardless of
any law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of Lender with respect
thereto. The liability of Guarantor under this Guaranty shall be
absolute and unconditional irrespective of:
(i) any
lack of validity, regularity or enforceability of any of the Agreements or any
other agreement or instrument relating thereto;
(ii) any
lack of validity, regularity or enforceability of this Guaranty or any other
agreement or instrument relating hereto;
(iii) any
modification or change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other modification, change,
amendment or waiver of or any consent to departure from any term of any of the
Agreements;
(iv) any
exchange, release or non-perfection of any collateral, or any release or
amendment or waiver of or consent to departure from any other guaranty, for all
or any of the Obligations;
(v) any
failure on the part of Lender or any other person or entity to exercise, or any
delay in exercising, any right under the Agreements or any other document or
instrument delivered in connection therewith; or
(vi) any
other circumstance which might otherwise constitute a defense available to, or a
discharge of, Borrower, the Guarantor or any other guarantor with respect to the
Obligations (including, without limitation, all defenses based on suretyship or
impairment of collateral, and all defenses that Borrower may assert to the
repayment of the Obligations, including, without limitation, failure of
consideration, breach of warranty, fraud, payment, statute of frauds,
bankruptcy, lack of legal capacity, statute of limitations, lender liability,
accord and satisfaction, and usury), this Guaranty and the obligations of the
Guarantor under this Guaranty.
Guarantor
hereby agrees that if Borrower or any other guarantor of all or a portion of the
Obligations is the subject of a bankruptcy proceeding or similar proceeding
under Title 11 of the U.S. Code or any similar legislation relating to
bankruptcy or insolvency, it will not assert the pendency of such proceeding or
any order entered therein as a defense to the timely payment of the
Obligations. This Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the
Obligations is rescinded or must otherwise be returned by Lender upon the
insolvency, bankruptcy or reorganization of Borrower or otherwise, all as though
such payment had not been made.
Guarantor’s
obligations and liability under this Guaranty shall be on a “joint and several”
basis along with Borrower to the same degree and extent as if Guarantor had been
and/or will be a co-principal obligor of the Obligations. In the
event that there is more than one Guarantor under this Guaranty, or in the event
that there are other guarantors, endorsers or sureties of all or any portion of
the Obligations, Guarantor’s obligations and liability hereunder shall further
be on a “joint and several” basis along with such other guarantors, endorsers
and/or sureties.
SECTION 3. Waivers. Guarantor hereby
waives:
(i) promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations and this Guaranty;
(ii) any
requirement that Lender protect, secure, perfect or insure any security interest
or lien on any property subject thereto or exhaust any right to take any action
against Borrower or any other person or entity or any collateral;
(iii) any
right to receive notice of any disposition or retention by Lender of any
collateral and right of redemption relating to any collateral.
(iv) any
right to demand or require collateral security from Borrower or any other person
as provided under applicable law or otherwise;
(v) any
modification or amendment of the Obligations or any of the Agreements, or the
impairment of real security held for such Obligations, by Lender as provided
under applicable law or otherwise.
(vi) notice
of Xxxxxx’s acceptance of this Guaranty;
(vii) presentment
for payment of the Obligations, notice of dishonor and of nonpayment, notice of
intention to accelerate, notice of acceleration, protest and notice of protest,
collection or institution of any suit or other action by Xxxxxx in collection
thereof, including any notice of default in payment thereof, or other notice to,
or demand for payment thereof, on any party;
(viii) any
right to require Lender to notify Guarantor of any nonpayment relating to any
collateral directly or indirectly securing the Obligations, or notice of any
action or nonaction on the part of Borrower, Lender, or any other guarantor,
surety or endorser of the Obligations, or notice of the creation of any new or
additional Obligations subject to this Guaranty;
(ix) any
right to require Lender to notify Guarantor of the terms, time and place of any
public or private sale of any collateral directly or indirectly securing the
Obligations;
(x) any
election of remedies by Xxxxxx that may destroy or impair Guarantor’s
subrogation rights or Guarantor’s right to proceed for reimbursement against
Borrower or any other guarantor, surety or endorser of the Obligations,
including without limitation, any loss of rights Guarantor may suffer by reason
of any law limiting, qualifying, or discharging the Obligations;
(xi) any
disability or other defense of Borrower, or any other guarantor, surety or
endorser, or any other person, or by reason of the cessation from any cause
whatsoever, other than payment in full of the Obligations; and
(xii) any
statute of limitations or prescriptive period, if at the time an action or suit
brought by Lender against Guarantor is commenced, there are any outstanding
Obligations which are barred by any applicable statute of limitations or
prescriptive period.
SECTION 4. Subrogation. Guarantor hereby
agrees it will not exercise any rights which it may acquire by way of
subrogation under this Guaranty, by any payment made hereunder or otherwise,
until all the Obligations shall have been paid in full. If any amount
shall be paid to the Guarantor on account of such subrogation rights at any
time when all the Obligations shall not have been paid in full, such amount
shall be held in trust for the benefit of Lender and shall forthwith be paid to
Lender to be credited and applied upon the Obligations, whether matured or
unmatured, in accordance with the terms of the Agreements. If
(i) the Guarantor shall make payment to Lender of all or any part of the
Obligations and (ii) all the Obligations shall be paid, performed and observed
in full, Lender will, at the Guarantor’s request, execute and deliver to the
Guarantor appropriate documents, without recourse and without representation or
warranty, necessary to evidence the transfer by subrogation to the Guarantor of
an interest in the Obligations resulting from such payment by the
Guarantor.
SECTION 5. Representations
and Warranties. Guarantor hereby
represents and warrants as follows:
(a) Due Execution,
Etc. The execution, delivery and performance (including the
incurrence of the Obligations hereunder) by the Guarantor of this Guaranty do
not and will not (i) contravene Guarantor’s organizational documents or 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, or (ii) result in or require the creation or imposition
of any lien (other than pursuant hereto) upon or with respect to any of the
Guarantor’s properties. The Guarantor has been duly formed and is in
good standing in its jurisdiction of organization and is duly qualified as a
foreign business entity in all jurisdictions where it must be qualified pursuant
to applicable law. 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 Guarantor or on the ability of the Guarantor to
carry out its obligations under this Guaranty.
(b) 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.
(c) 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.
(d) Solvency. The
fair value of the property of the Guarantor exceeds the total amount of
liabilities (including, without limitation, contingent liabilities) of the
Guarantor; the present fair market 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.
(e) 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 the properties of the Guarantor
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. There are
no actions, suits, investigations, litigation or proceedings pending or
threatened against or affecting the Guarantor or its affiliates or subsidiaries
of the Guarantor or the properties of the Guarantor or its affiliates or
subsidiaries before any court, arbitrator or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign which,
if determined adversely to the Guarantor, would have a Material Adverse Effect
on the financial condition or continued operation of Guarantor or its affiliates
or subsidiaries on a consolidated basis or any part of the transactions
contemplated hereby or by the Agreements.
(f) Payment of
Taxes. The Guarantor has filed all tax returns (federal,
provincial, 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 6. Integration. This Guaranty
together with the Loan Documents constitutes the entire agreement and
understanding between Lender and 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,
Guarantor acknowledges that it is relying on no statement, representation,
warranty, covenant or agreement of any kind made by Lender or any employee or
agent of Lender.
SECTION 7. Amendments,
Etc. No amendment or
waiver of any provision of this Guaranty or consent to any departure by the
Guarantor herefrom shall in any event be effective unless the same shall be in
writing and signed by Xxxxxx, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which
given.
SECTION 8. Addresses
for Notices. All notices,
requests, demands and other communications provided for hereunder shall be in
writing and sent in accordance with the terms and conditions of the Loan
Agreement.
SECTION 9. No
Waiver; Remedies. No failure on the
part of Lender to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law or in any of the
Agreements or other Loan Documents.
SECTION 10. Right of
Set-off. Upon the
occurrence and during the continuance of any Event of Default Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by Lender to or for the credit or the account of the Guarantor
against any and all of the obligations of the Guarantor now or hereafter
existing under this Guaranty, irrespective of whether or not Lender shall have
made any demand under this Guaranty and although such obligations may be
contingent and unmatured. Xxxxxx agrees promptly to notify the
Guarantor after any such set-off and application, provided that the failure to
give such notice shall not affect the validity of such set-off and
application. The rights of Lender under this Section are in addition
to the other rights and remedies (including, without limitation, other rights of
set-off) which Lender may have.
SECTION 11. 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 Lender and its successors,
transferees and assigns. Without limiting the generality of the
foregoing clause (iii), 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 Lender herein or otherwise.
SECTION 12. Indemnification. Guarantor hereby
agrees, jointly and severally, to indemnify and hold harmless Lender and its
affiliates and their respective directors, officers, employees and agents,
including all professionals (each an “Indemnified Party”) from and against any
and all expenses, losses, claims, damages and liabilities (including, without
limitation, all legal fees and disbursements of attorneys and other
professionals incurred by or asserted against any Indemnified Party in
connection with or arising out of, relating to, or by reason of any
investigation, litigation or proceeding arising out of, relating to or in
connection with any claims made by any person or entity in any way relating to
this Guaranty or the transactions contemplated hereby, but excluding therefrom
all expenses, losses, claims, damages, and liabilities arising out of or
resulting from the gross negligence or willful misconduct of any Indemnified
Party.
SECTION 13. GOVERNING
LAW. THIS GUARANTY AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL IN ALL RESPECTS BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH STATE),
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
SECTION 14. JUDICIAL
PROCEEDINGS. GUARANTOR AND, BY
ITS ACCEPTANCE HEREOF, XXXXXX, HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS GUARANTY AND
AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A
JURY. THE PARTIES AGREE THAT ANY ACTION OR PROCEEDING ARISING UNDER
OR RELATED TO THIS GUARANTY MAY BE COMMENCED IN ANY FEDERAL OR STATE COURT
SITTING IN THE SOUTHERN DISTRICT OF NEW YORK AND THE PARTIES IRREVOCABLY SUBMIT
TO THE JURISDICTION OF EACH SUCH COURT AND AGREE NOT TO ASSERT, BY WAY OF
MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY
CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURT, THAT
THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE
VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER, OR THAT THE AGREEMENT OR
THE SUBJECT MATTER THEREOF OR THE TRANSACTION CONTEMPLATED HEREBY OR THEREBY MAY
NOT BE ENFORCED IN OR BY SUCH COURT. THE
GUARANTOR AND XXXXXX AGREE THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 15. DEFINITIONS. Capitalized terms
used but not defined herein shall have the meanings set forth in the Loan
Agreement.
SECTION 16. COLLATERAL. Guarantor hereby
waives any and all rights to claim a lien or other security interest in and to
any of the Vessels securing the obligations arising under the Loan
Agreement. In the event of any Event of Default, Guarantor shall
waive any possessory or other right in and to all such Vessels.
[
signature pages follow ]
IN WITNESS WHEREOF, the
Guarantor has executed this Guaranty as of the date first above
written.
GUARANTOR:
PRESENT
WHEN THE COMMON SEAL OF
TBS
INTERNATIONAL PUBLIC LIMITED COMPANY,
an
Irish public limited company, was affixed hereto
By: /s/
Xxxxxxxxxxx X. Xxxxxx
Name:
Xxxxxxxxxxx X. Xxxxxx
Title:
Attorney-in-Fact
