Greystone Business Credit II, L.L.C.
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GUARANTY
Borrowers: MARINE GROWTH FINANCE & CHARTER, INC.,
a Delaware corporation,
and
MARINE GROWTH CANADA LTD.,
a company organized under the laws of the Province of
British Columbia, Canada
Guarantor: MARINE GROWTH VENTURES, INC.,
a Delaware corporation
Borrowers have requested that GREYSTONE BUSINESS CREDIT II, L.L.C.
("Lender") provide certain financial accommodations to Borrowers pursuant to the
terms of a Loan and Security Agreement among Borrowers and Lender dated of even
date herewith (as amended from time to time, the "Loan Agreement"). As one of
the conditions to providing financing, Lender has required that Guarantor
guaranty all obligations of Borrowers to Lender.
For value received and in consideration of any loan, advance or
financial accommodation of any kind whatsoever heretofore, now or hereafter
made, given or granted to Borrowers by Lender pursuant to the Loan Agreement,
Guarantor unconditionally (but subject to the immediately following paragraph)
guaranties the full and prompt payment when due (subject to the immediately
following paragraph), whether at maturity or earlier, by reason of acceleration
or otherwise, and at all times thereafter, of the indebtedness, liabilities and
obligations of every kind and nature of Borrowers to Lender (including, without
limitation, all interest accruing after the filing of a proceeding under the
Bankruptcy Code (as defined in the Loan Agreement) whether or not allowed by the
court in such proceeding, and all other indebtedness, liabilities and
obligations arising after the filing of any proceeding under the Bankruptcy
Code), howsoever created, arising or evidenced, whether direct or indirect,
absolute or contingent, joint or several, now or hereafter existing, or due or
to become due, in each case arising under the Loan Agreement or the other Loan
Documents (as defined in the Loan Agreement), plus all costs and expenses
(including, without limitation, all court costs and reasonable attorneys' and
paralegals' fees and expenses) paid or incurred by Lender in endeavoring to
collect all or any part of such indebtedness, liabilities and obligations from,
or in prosecuting any action against, Guarantor or any other guarantor of all or
any part of such indebtedness, liabilities and obligations (all such
indebtedness, liabilities, obligations, costs and expenses being hereinafter
referred to as "Borrowers' Obligations"). All sums becoming due under this
Guaranty shall bear interest from the due date thereof until paid at the highest
rate charged with respect to any of Borrowers' Obligations under the Loan
Agreement.
Notwithstanding anything to the contrary contained herein, in no
event shall Lender make demand against Guarantor in respect of this Guaranty
unless and until one hundred and twenty (120) days after the earlier to occur of
any of the following events (collectively, the "Demand Conditions"): (i) Lender
accelerates any of the Obligations, (ii) Lender initiates a foreclosure of any
of the Collateral or (iii) an Event of Default occurs as defined in the Loan
Agreement. Lender agrees to use reasonable efforts to notify Guarantor of the
occurrence of any Demand Condition; however, Lender shall have no liability to
Guarantor for Lender's failure to provide any such notice.
Guarantor agrees that its obligations under this Guaranty are
unconditional, irrespective of (i) the validity or enforceability of Borrowers'
Obligations or any note or other instrument evidencing Borrowers' Obligations,
(ii) except as explicitly set forth herein, the absence of any attempt by Lender
to collect Borrowers' Obligations from Borrowers or any other guarantor, (iii)
Lender's waiver or consent with respect to any provision of the Loan Documents,
(iv) Lender's failure to perfect or maintain its security interests in, or to
preserve its rights with respect to, any of the Collateral (as defined in the
Loan Agreement), (v) Lender's election, in any proceeding under Chapter 11 of
the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy
Code, (vi) any borrowing or grant of a security interest by Borrowers as
debtor-in-possession under Section 364 of the Bankruptcy Code, (vii) the
disallowance, under Section 502 of the Bankruptcy Code, of all or any of
Lender's claims for repayment of Borrowers' Obligations or (viii) any other
circumstance which might constitute a legal or equitable discharge or defense of
Borrowers or a guarantor.
No payment made by or for the account or benefit of Guarantor
(including, without limitation, (i) a payment made by Borrowers in respect of
Borrowers' Obligations, (ii) a payment made by any person under any other
guaranty of Borrowers' Obligations or (iii) a payment made by means of set off
or other application of funds by Lender) shall entitle Guarantor, by subrogation
or otherwise, to any payment by Borrowers or from or out of any property of
Borrowers, and Guarantor shall not exercise any rights or remedies against
Borrowers or any property of Borrowers including, without limitation, any right
of contribution, indemnity or reimbursement by reason of any performance by
Guarantor under this Guaranty, all of such rights of subrogation, contribution,
indemnity and reimbursement being hereby waived by Guarantor. The provisions of
this paragraph shall survive the termination of this Guaranty or the release or
discharge of Guarantor from liability hereunder. Borrowers are third party
beneficiaries of the provisions of this paragraph.
Guarantor hereby waives diligence, presentment, demand for payment,
filing of claims with a court in the event of receivership or bankruptcy of
Borrowers (or either one of them), protest or notice with respect to Borrowers'
Obligations and all demands whatsoever, and covenants that this Guaranty will
not be discharged, except by complete and irrevocable payment and performance of
the obligations and liabilities contained herein. No notice to any party,
including Guarantor, shall be required for Lender to make demand hereunder. Such
demand shall constitute a mature and liquidated claim against Guarantor. At any
time after maturity of Borrowers' Obligations, whether by acceleration or
otherwise, Lender may, at its sole election, proceed directly and at once,
without notice, against Guarantor to collect and recover the full amount or any
portion of Borrowers' Obligations, without first proceeding against Borrowers or
any other person or against any of the Collateral. Lender shall have the
exclusive right to determine the application of payments and credits, if any,
from Guarantor, Borrowers or any other person, on account of Borrowers'
Obligations.
Lender is hereby authorized, without notice or demand to Guarantor
and without affecting or impairing the liability of Guarantor hereunder, to from
time to time (i) renew, extend, accelerate or otherwise change the time for
payment of, or other terms relating to, Borrowers' Obligations or otherwise
modify, amend or change the terms of any promissory note or other agreement,
document or instrument now or hereafter executed by Borrowers (or either of
them) and delivered to Lender; (ii) accept partial payments on Borrowers'
Obligations; (iii) take and hold Collateral for the payment of Borrowers'
Obligations, or for the payment of this Guaranty, or for the payment of any
other guaranties of Borrowers' Obligations or other liabilities of Borrowers,
and exchange, enforce, waive and release any Collateral; (iv) apply Collateral
and direct the order or manner of sale thereof as it may determine in its sole
discretion; and (v) settle, release, compromise, collect or otherwise liquidate
Borrowers' Obligations and any Collateral in any manner.
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At any time after maturity of Borrowers' Obligations, Lender may, in
its sole discretion, without notice to Guarantor and regardless of the
acceptance of any Collateral for the payment hereof, appropriate and apply
toward payments of Borrowers' Obligations, (i) any indebtedness due or to become
due from Lender to Guarantor and (ii) any moneys, credits or other property
belonging to Guarantor at any time held by or coming into the possession of
Lender or any affiliates of Lender, whether for deposit or otherwise.
Guarantor assumes responsibility for keeping itself informed of the
financial condition of Borrowers and all other guarantors of all or any of
Borrowers' Obligations, and of all other circumstances bearing upon the risk of
nonpayment of Borrowers' Obligations or any part thereof that diligent inquiry
might reveal, and Guarantor agrees that Lender shall have no duty to advise
Guarantor of information known to Lender regarding any of the foregoing.
Guarantor acknowledges familiarity with Borrowers' financial condition and
represents that it has not relied on any statements made, or information
furnished, by Lender or its agents in obtaining such familiarity. If Lender
provides any such information to Guarantor, Lender shall be under no obligation
to (i) undertake any investigation not a part of its regular business routine,
(ii) disclose any information which, pursuant to accepted or reasonable
commercial finance practices, Lender wishes to maintain confidential or (iii)
make any other or future disclosures of any information to Guarantor.
Notwithstanding any contrary provision of this Guaranty, it is
intended that neither this Guaranty nor any liens or security interests securing
this Guaranty constitute a "Fraudulent Conveyance" (as defined below).
Consequently, Guarantor agrees that if this Guaranty or any liens or security
interests securing this Guaranty would, but for the application of this
sentence, constitute a Fraudulent Conveyance, this Guaranty and each such lien
and security interest shall be valid and enforceable only to the maximum extent
that would not cause this Guaranty or such lien or security interest to
constitute a Fraudulent Conveyance, and this Guaranty shall automatically be
deemed to have been amended accordingly at all relevant times. For purposes
hereof, a "Fraudulent Conveyance" means a fraudulent conveyance under Section
548 of the Bankruptcy Code or a fraudulent conveyance or fraudulent transfer
under any applicable fraudulent conveyance or fraudulent transfer law or similar
law of any state or other governmental unit as in effect from time to time.
Guarantor waives the right to assert the doctrine of marshaling with
respect to any of the Collateral securing Borrowers' Obligations. Guarantor
further agrees that, to the extent Borrowers (or either one of them) makes one
or more payments to Lender, or Lender receives any proceeds of Collateral, which
are subsequently invalidated, declared to be fraudulent or preferential, set
aside or required to be repaid to any Borrower, its estate, trustee, receiver or
any other party under the Bankruptcy Code or other law, that portion of
Borrowers' Obligations which has been paid, reduced or satisfied by such payment
or proceeds shall be reinstated and continued in full force and effect as of the
date such initial payment, reduction or satisfaction occurred and this Guaranty
shall continue to be in existence and in full force and effect, irrespective of
whether any evidence of indebtedness or this Guaranty has been surrendered or
canceled.
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Guarantor agrees that all payments hereunder shall be made without
setoff or counterclaims and Guarantor waives all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices of
dishonor and notices of acceptance of this Guaranty. Guarantor further waives
all notices of the existence, creation or incurring of new or additional
indebtedness, arising either from additional loans extended to Borrowers or
otherwise, and also waives all notices that the principal amount, or any portion
thereof, or any interest on any instrument or document evidencing all or any
part of Borrowers' Obligations is due, notices of any and all proceedings to
collect from the maker, any endorser or any other guarantor of all or any part
of Borrowers' Obligations, or from anyone else, and, to the extent permitted by
law, notices of exchange, sale, foreclosure, surrender or other handling of any
Collateral securing Borrowers' Obligations.
No delay on the part of Lender in the exercise of any right or
remedy shall operate as a waiver thereof, and no single or partial exercise by
Lender of any right or remedy shall preclude any further exercise thereof except
as expressly set forth in a writing duly signed and delivered on Lender's behalf
by an authorized officer or agent of Lender; nor shall any modification or
waiver of any of the provisions of this Guaranty be binding upon Lender, except
as expressly set forth in a writing duly signed and delivered on Lender's behalf
by an authorized officer or agent of Lender. Lender's failure at any time or
times hereafter to require strict performance by Borrowers or Guarantor of any
of the provisions, warranties, terms and conditions contained in any promissory
note, security agreement, agreement, guaranty, instrument or document now or at
any time or times hereafter executed by Borrowers or Guarantor and delivered to
Lender, shall not waive, affect or diminish any right of Lender at any time or
times hereafter to demand strict performance thereof and such right shall not be
deemed to have been waived by any act or knowledge of Lender, or its respective
agents, officers or employees, unless such waiver is contained in an instrument
in writing signed by an officer or agent of Lender, and directed to Borrowers or
Guarantor, as applicable, specifying such waiver. No waiver by Lender of any
default shall operate as a waiver of any other default or the same default on a
future occasion, and no action by Lender permitted hereunder shall in any way
affect or impair Lender's rights or the obligations of Guarantor under this
Guaranty. Any determination by a court of competent jurisdiction of the amount
of any principal or interest owing by Borrowers to Lender shall be conclusive
and binding on Guarantor irrespective of whether Guarantor was a party to the
suit or action in which such determination was made.
Guarantor hereby represents and warrants that (i) it is in
Guarantor's direct interest to assist Borrowers in procuring credit, because
Borrowers are affiliates of Guarantor, furnishes goods or services to Guarantor,
purchases or acquires goods or services from Guarantor, and/or otherwise has a
direct or indirect corporate or business relationship with Guarantor, (ii) this
Guaranty has been duly and validly authorized, executed and delivered and
constitutes the valid and binding obligation of Guarantor, enforceable in
accordance with its terms, and (iii) the execution and delivery of this Guaranty
does not violate or constitute a default under (with or without the giving of
notice, the passage of time, or both) any order, judgment, decree, instrument or
agreement to which Guarantor is a party or by which it or its assets are
affected or bound.
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This Guaranty shall be binding upon Guarantor and upon the
successors and permitted assigns of Guarantor and shall inure to the benefit of
Lender and its successors and assigns. All references herein to Borrowers shall
be deemed to include their successors and permitted assigns and all references
herein to Lender shall be deemed to include its successors and assigns.
Borrowers' and Guarantor's successors and permitted assigns shall include a
receiver, trustee, custodian of or for Borrowers (or either one of them) or
Guarantor or any of their respective assets and Borrowers or Guarantor as
debtor-in-possession. All references to the singular shall be deemed to include
the plural where the context so requires.
GUARANTOR HEREBY CONSENTS AND AGREES THAT THE STATE AND FEDERAL
COURTS IN NEW YORK COUNTY, NEW YORK SHALL HAVE NONEXCLUSIVE JURISDICTION TO HEAR
AND DETERMINE ANY CLAIMS OR DISPUTES WITH RESPECT TO THIS GUARANTY AND WAIVES
ANY OBJECTION WHICH IT MAY HAVE BASED ON IMPROPER VENUE OR FORUM NON CONVENIENS
TO THE CONDUCT OF ANY PROCEEDING IN ANY SUCH COURT AND CONSENTS THAT ALL SERVICE
OF PROCESS UPON GUARANTOR BE MADE BY REGISTERED MAIL OR MESSENGER DIRECTED TO
GUARANTOR AT THE ADDRESS SET FORTH BELOW GUARANTOR'S SIGNATURE AND THAT SERVICE
SO MADE SHALL BE DEEMED TO BE COMPLETED UPON ACTUAL RECEIPT THEREOF. GUARANTOR
HEREBY AGREES THAT ANY CLAIM OR DISPUTE BROUGHT BY GUARANTOR AGAINST LENDER OR
ANY MATTER ARISING OUT OF THIS GUARANTY SHALL BE BROUGHT EXCLUSIVELY IN THE
STATE AND FEDERAL COURTS IN NEW YORK COUNTY, NEW YORK. GUARANTOR HEREBY WAIVES,
TO THE EXTENT PERMITTED BY LAW, TRIAL BY JURY. NOTHING CONTAINED HEREIN SHALL
AFFECT THE RIGHT OF LENDER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED
BY LAW OR AFFECT THE RIGHT OF LENDER TO BRING ANY ACTION OR PROCEEDING AGAINST
GUARANTOR OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
THIS GUARANTY SHALL BE GOVERNED IN ALL RESPECTS BY THE INTERNAL LAWS
OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF
LAWS.
Wherever possible each provision of this Guaranty shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Guaranty shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity without invalidating the remainder of such provision or the
remaining provisions of this Guaranty.
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IN WITNESS WHEREOF, this Guaranty has been duly executed by
Guarantor this 27th day of March, 2007
MARINE GROWTH VENTURES, INC.
By /s/ Xxxxx Xxxxxxxx
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Its President
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[Address]
000-X Xxxxxxxx Xx. #000
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Xxxx Xxxxxxxxx, XX 00000
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