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EXHIBIT 10.20
GUARANTY
This GUARANTY ("Guaranty") dated as of July 30, 1999 is made by
THE CRONOS GROUP, a Luxembourg societe anonyme ("Guarantor"), in favor of
MEESPIERSON N.V., as agent (the "Agent"), on behalf of, and for the benefit of,
itself and First Union National Bank ("First Union"; collectively with
MeesPierson N.V. in its capacity as a lender under the Loan Agreement, the
"Lenders") as the holders of the notes issued by Cronos Finance (Bermuda)
Limited.
RECITALS
WHEREAS, Cronos Finance (Bermuda) Limited, a company organized
and existing under the laws of the Islands of Bermuda (the "Issuer"), the Agent
and the Lenders have entered into a certain Loan Agreement, dated as of July 30,
1999 (as the same may from time to time be amended, modified, supplemented or
restated in accordance with its terms, the "Loan Agreement"), pursuant to which
the Lenders have agreed to purchase up to a specified principal amount of the
notes (the "Notes") issued pursuant to the Loan Agreement;
WHEREAS, in consideration of the agreement of the Lenders to
purchase the Notes under the Loan Agreement, Guarantor is willing to guarantee,
subject to the aggregate limitation set forth below, (i) the obligations of the
Issuer under the Notes, the Loan Agreement and the other Transaction Documents
and (ii) the performance by each Seller and the Manager of their respective
obligations arising under any Transaction Document;
WHEREAS, Guarantor is the direct or indirect parent of the
Issuer, each Seller and the Manager and will obtain substantial direct and
indirect benefit from the purchase of the Notes by the Lenders;
NOW, THEREFORE, in consideration of the foregoing recitals and
other good consideration, the receipt and adequacy is hereby acknowledged, and
intending to be legally bound, the parties hereto do hereby agree as follows:
AGREEMENT
SECTION 1. DEFINITIONS. Unless otherwise defined in this
Guaranty, capitalized terms used herein shall have the meanings set forth in the
Loan Agreement.
SECTION 2. ACKNOWLEDGMENT; GUARANTY.
(a) Guarantor hereby consents to Issuer's issuance of the Notes
under the terms and conditions set forth in the Loan Agreement and the purchase
of the Notes by Lenders pursuant to the terms of the Loan Agreement. Guarantor
hereby unconditionally, absolutely and irrevocably guarantees to the Agent and
the Lenders (each, a "Guaranteed Party" and collectively, the "Guaranteed
Parties"): (i) the full and prompt payment when due of the principal balance of
the Notes and the indebtedness represented thereby, whether at the stated
maturity thereof or at such earlier date as may result from the acceleration
thereof as a result of the occurrence of an Event of
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Default (as such terms are defined in the Loan Agreement); (ii) the full and
prompt payment when due of interest on the outstanding principal balance of the
Notes, whether at the stated maturity date thereof or at such earlier date as
may result from the acceleration thereof following an Event of Default; (iii)
the full and prompt payment of an amount equal to any and all payments and other
sums when and as the same shall become due, required to be paid by the Issuer,
any Seller or the Manager to any Guaranteed Party under the terms of the Loan
Agreement or any other Transaction Document; and (iv) the full and prompt
performance and observance by the Issuer, any Seller or the Manager of all of
their respective obligations, covenants and agreements required to be performed
and observed pursuant to the terms of the Loan Agreement or any other
Transaction Document (items (i) through (iv) collectively, the "Guaranteed
Obligations"); provided, however, that, subject to the provisions of Section 15
hereof, the maximum aggregate amount of funds paid by the Guarantor under this
Guaranty (such maximum aggregate amount, the "Aggregate Maximum Guaranteed
Payment") throughout the entire term of this Guaranty shall not exceed an amount
equal to ten million dollars ($10,000,000).
(b) The Agent, on behalf of the Lenders, shall be entitled to
submit one or more claims under this Guaranty. The Agent shall be entitled to
submit a claim under this Guaranty on the date on which any amount is due under
the Loan Agreement or any other Transaction Documents or on any date thereafter
on which such amount remains unpaid for an amount not to exceed an amount equal
to the difference of (x) the Aggregate Maximum Guaranteed Payment and (y) the
aggregate amount of all payments previously made by the Guarantor under this
Guaranty.
(c) In order to secure the Guaranteed Obligations, subject to
the Aggregate Maximum Payment, and the performance of all of the Guarantor's
covenants and agreements in this Guaranty and all other Transaction Documents,
subject to the Aggregate Maximum Payment, the Guarantor (i) hereby assigns,
conveys, mortgages, pledges, hypothecates and transfers to Agent, for the
benefit of Noteholders to the extent provided herein, a security interest in and
to all of the Guarantor's right, title and interest in, to and under the
following, whether now existing or hereafter created: (A) the Escrowed Shares
and (B) the Class C Note, and (ii) has pledged all of its shares of Cronos
Holdings Investments (US) Inc. to the Agent, on behalf of the Lenders, pursuant
to a Stock Pledge Agreement dated as of July 30, 1999, between The Cronos Group
and Meespierson N.V., as agent. Notwithstanding the foregoing, the Aggregate
Maximum Payment shall not apply to Sections 6(j), 6(k) and 6(l).
SECTION 3. GUARANTY UNCONDITIONAL. The obligations of Guarantor
hereunder are irrevocable, absolute and unconditional, irrespective of the
value, genuineness, regularity, validity or enforceability of the Guaranteed
Obligations or any other circumstance which might otherwise constitute a legal
or equitable discharge or defense of a surety or guarantor. No set-off,
abatement, recoupment, counterclaim, off-set, reduction or diminution of an
obligation, or any defense of any kind or nature (other than performance by
Guarantor of its obligations hereunder) which Guarantor has or may have with
respect to a claim under this Guaranty, shall be available hereunder to
Guarantor against an Agent or Lenders. The Guaranteed Obligations are direct,
unconditional and completely independent of the obligations of any other Person
or entity, and a separate cause of action or separate causes of action may be
brought and prosecuted against the Guarantor without the necessity of joining
any other party or previous proceeding with or exhausting any other remedy
against any other Person who might have become liable for the indebtedness or of
realizing upon any security held by or for the benefit of the Agent.
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SECTION 4. PAYMENTS. All payments to be made by Guarantor to or
for the benefit of the Guaranteed Party hereunder shall be made in lawful money
of the United States of America, in immediately available funds for deposit into
the Trust Account and shall be accompanied by a notice from Guarantor stating
that such payments are made under this Guaranty.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF GUARANTOR.
Guarantor hereby represents and warrants to the Agent and the Lenders as of the
Closing Date that:
(a) The Guarantor is a societe anonyme duly organized, validly
existing and in good standing under the laws of Luxembourg, has the power to own
its assets and to engage in the activities in which it is now engaged and is
duly qualified and in good standing under the laws of each jurisdiction where
the conduct of its activities requires such qualification, if the failure to so
qualify would have a material adverse effect (a) on the financial condition of
the Guarantor, (b) the enforceability or effectiveness of this Guaranty or (c)
the transactions contemplated by the Loan Agreement and the other Transaction
Documents;
(b) The Guarantor has full power, authority and legal right to
execute, deliver and perform this Guaranty and each other Transaction Document
to which it is a party (collectively, the "GUARANTOR DOCUMENTS") and has taken
all necessary action to authorize the execution, delivery and performance by it
of the Guarantor Documents. No consent, license, permit, approval or
authorization of, exemption by, notice or report to, or registration, filing or
declaration with, any Governmental Authority or body or official is required for
the execution, delivery and performance by the Guarantor of the Guarantor
Documents which has not been obtained, made, given or accomplished. Each of the
Guarantor Documents has been duly executed and delivered by a duly authorized
representative of the Guarantor, and each such Guarantor Document constitutes
the valid, legal and binding obligations of the Guarantor, enforceable against
the Guarantor in accordance with its terms;
(c) The execution, delivery and performance by the Guarantor of
the Guarantor Documents will not violate any provision of any existing law or
regulation applicable to the Guarantor, or of any order, judgment, award or
decree of any court, arbitrator or governmental authority applicable to the
Guarantor or the organizational documents of the Guarantor or any mortgage,
indenture, lease, contract or other agreement, instrument or undertaking to
which the Guarantor is a party or by which the Guarantor or any of its assets
may be bound, and will not result in, or require, the creation or imposition of
any Lien on any of its property, assets or revenues pursuant to the provisions
of any such mortgage, indenture, lease, contract or other agreement, instrument
or undertaking;
(d) No litigation, investigation or administrative proceeding of
or before any court, arbitrator or governmental authority is pending or, to the
Guarantor's knowledge, threatened against the Guarantor which if decided
adversely to the Guarantor, would materially affect the condition (financial or
otherwise), business or operations of the Guarantor, or the ability of the
Guarantor to perform its obligations under the Guarantor Documents;
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(e) All approvals, authorizations, consents, orders or other
actions of any person, corporation or other organization, or of any court
required in connection with the execution and delivery of the Guarantor
Documents by the Guarantor, have been or will be taken or obtained on or prior
to the Closing Date;
(f) The consolidated balance sheet of the Guarantor at March 31,
1999 and the consolidated statements of income, retained earnings and cash flows
for the fiscal quarter then ended fairly present in all material respects,
subject to normal year-end audit adjustments and the absence of footnotes to
such statements, the financial condition of the Guarantor and the results of the
operations for the period ended on such date, all in accordance with generally
accepted accounting principles applied on a consistent basis.
(g) Guarantor is Solvent as of the Closing Date and will be
Solvent after giving effect to the transactions contemplated by the Transaction
Documents. The incurrence of Guarantor's obligations under the Guarantor
Documents will not cause Guarantor: (i) to be left with unreasonably small
capital for any business or transaction in which Guarantor is presently engaged
or plans to be engaged; or (ii) to be unable to pay its debts as such debts
mature.
(h) Guarantor has taken all action necessary to prevent a Year
2000 Problem or cause a Material Adverse Change with respect to itself or any of
its direct or indirect subsidiaries, and it will review, on an ongoing basis,
whether anticipated costs, problems, and uncertainties associated with Year 2000
Problems need to be disclosed, particularly in its filings with the Securities
and Exchange Commission ("SEC"). Guarantor will evidence to the Agent, at the
Agent's request, that all applicable SEC rules or regulations relating to Year
2000 disclosure have been duly followed.
Guarantor agrees that its, and all of its subsidiaries'
Essential Information Technology shall be maintained, modified, and updated as
needed to prevent any Material Adverse Change resulting from a Year 2000
Problem.
(i) The Guarantor has developed, a feasible contingency plan to
adequately ensure the uninterrupted and unimpaired business operation of the
Guarantor and its subsidiaries in the event of failure of its own or a third
party's system or equipment due to a Year 2000 Problem, including those of
vendors, customers, and suppliers, as well as a general failure of or
interruption in its communication and delivery infrastructure.
(j) The Guarantor is the owner of all of the issued and
outstanding shares of Cronos Holdings Investments (US) Inc., which in turn owns
all of the issued and outstanding shares of Cronos Capital Corp.
(k) After giving effect to the transactions on the Closing Date,
Cronos Capital Corp. will not have any unpaid Indebtedness.
(l) The Guarantor has good title to each of the Class C Note and
the Escrowed Shares, free and clear of all liens, claims and encumbrances,
except, in the case of the Escrowed
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Shares, for the encumbrance evidenced by the escrow agreement in effect with
respect thereto on the Closing Date.
(m) This Guaranty creates in favor of the Agent a valid lien in
all of Guarantor's right, title and interest in and to the Class C Note and the
Escrowed Shares, which lien is prior to all liens, claims and encumbrances.
SECTION 6. COVENANTS OF THE GUARANTOR. The Guarantor agrees
that, so long as this Guaranty shall remain in effect or any Outstanding
Obligations under the Loan Agreement shall be outstanding, it shall or, in the
case of paragraphs (h) and (i) below, it shall not, without the prior written
consent of the Agent and all of the Lenders in each instance (which shall not be
unreasonably withheld or delayed):
(a) Preservation of Properties; Enforcement of Rights.
Materially preserve and protect the usefulness and value of its properties and
assets, maintain the same in good repair, working order and condition, and from
time to time make, or cause to be made, all needed and proper repairs, renewals,
replacements, betterments and improvements thereto.
(b) Payment of Debts. Pay its debts, liabilities and obligations
when due except those which are contested in good faith and for which the
Guarantor has maintained adequate reserves satisfactory to Agent; provided that
such contest shall not result in a material lien being placed on its properties
and assets or any part thereof or result in any of its properties and assets
being subject to loss or forfeiture.
(c) Payment of Taxes and Claims. Prepare and timely file all tax
returns required to be filed by Guarantor and pay and discharge all taxes,
assessments and other governmental charges or levies imposed upon Guarantor or
in respect of any of its properties and assets before the same shall become in
default, as well as all lawful claims which, if unpaid, might become a material
lien or charge upon its properties and assets or any part thereof, except those
which are contested in good faith by the Guarantor and for which the Guarantor
has maintained adequate reserves satisfactory to the Agent; provided that such
contest shall not result in a material lien being placed on any of its
properties and assets or any part thereof being subject to forfeiture.
(d) Notification of Event of Default. Give prompt written notice
to the Agent of (i) any Guarantor Event of Default hereunder or (to the extent
to which Guarantor has actual or constructive notice thereof) any Event of
Default under the Loan Agreement or a default under any other Transaction
Document or of any condition, event or act which with the giving of notice or
the passage of time, or both, would constitute a Guarantor Event of Default,
specifying the same and the steps being taken to remedy the same and (ii) any
default, event of default or any condition, event or act which, with the giving
of notice or the lapse of time, or both would constitute such a default or event
of default under any agreement or contract to which Guarantor is a party or by
which any of its property or assets is bound.
(e) Existence. Keep in full effect its existence, rights and
franchises as a company under the laws of Luxembourg, and will obtain and
preserve its qualification as a foreign
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company in each jurisdiction in which such qualification is necessary to protect
the validity and enforceability of this Guaranty.
(f) Notification of Litigation and Adverse Business Development.
Give immediate written notice to Agent of (a) any action, proceeding or
investigation pending or threatened against Guarantor before any court or
governmental instrumentality or other administrative agency which involves the
possibility of any judgment or liability which would result in any material
adverse changes in the business, properties or assets of Guarantor, and (b) any
Materially Adverse Change in the financial condition, assets, liabilities,
business or operations of Guarantor.
(g) Financial Statements. Deliver to the Agent and to the
Lenders:
(1) Annual Statements -- within 120 days after the end
of each fiscal year of The Cronos Group, one copy of:
(i) consolidated balance sheets of The
Cronos Group and its consolidated
subsidiaries, at the end of such fiscal
year; and
(ii) consolidated statements of income,
retained earnings and cash flows of The
Cronos Group and its consolidated
subsidiaries for the fiscal year then
ended, setting forth in each case in
comparative form the figures for the
previous fiscal year, all in reasonable
detail and accompanied by an opinion of
a firm of independent certified public
accountants of recognized national
standing, stating that such financial
statements present fairly in all
material respects the financial
condition of The Cronos Group and its
consolidated subsidiaries and have been
prepared in accordance with generally
accepted accounting principles
consistently applied (except for changes
in application in which such accountants
concur and footnote), and that the
examination of such accountants in
connection with such financial
statements has been made in accordance
with generally accepted auditing
standards;
(2) Quarterly Statements -- within 60 days after the end
of each fiscal quarter of The Cronos Group, one copy of:
(i) consolidated balance sheets of The
Cronos Group and its consolidated
subsidiaries, at the end of such fiscal
quarter; and
(ii) consolidated statements of income,
retained earnings and cash flows of The
Cronos Group and its consolidated
subsidiaries for the fiscal quarter and
that portion of the fiscal year then
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ended, setting forth in each case in
comparative form the figures for the
equivalent timeframe for the previous
year;
(3) SEC and Other Reports -- promptly upon their
becoming available, one copy of each report (if any), definitive proxy
statement, registration statement (upon it becoming effective) and definitive
prospectus filed by The Cronos Group with or delivered to any securities
exchange or the Securities and Exchange Commission or any successor agency; and
(4) Requested Information -- with reasonable promptness,
but in any event within two calendar weeks of the date requested, (A) any data
and information so requested and (B) any other publicly available information
with respect to The Cronos Group, in each case as may be reasonably requested
from time to time by the Agent or any Lender.
(h) Merger and Sale of Assets. Not merge, consolidate with or
sell substantially all of its assets to any other Person unless (i) all of the
requirements set forth in the immediately succeeding paragraph have been
satisfied, and (ii) the surviving entity, if not the Guarantor, is capable of
performing all the obligations of Guarantor hereunder, shall execute and deliver
to the Agent, in form and substance satisfactory to Agent, an instrument in
writing expressly assuming all the obligations of the Guarantor hereunder;
provided, however that, except as specifically set forth above, (x) any Person
succeeding to the business of the Guarantor shall be the successor of the
Guarantor hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding, (y) nothing contained herein shall be deemed to release the
Guarantor from any obligation in the event that the Guarantor continues to exist
after the consummation of such transaction and (z) the successor or surviving
Person to the Guarantor shall execute such agreements evidencing such succession
and assumption as the Agent may request.
The Guarantor shall provide prior written notice to the Agent
and each Noteholder of any merger, consolidation or succession pursuant to this
Section 6(h). Notwithstanding the foregoing, the Guarantor shall not merge or
consolidate with any other Person or permit any other Person to become a
successor to the Guarantor's business, unless (x) immediately after giving
effect to such transaction, covenant made pursuant to Section 6(h) shall not
have been breached (for purposes hereof, such covenant shall speak as of the
date of the consummation of such transaction) and no event that, after notice or
lapse of time, or both, would become a Guarantor Event of Default, Potential
Event of Default, Event of Default or Manager Default shall have occurred and be
continuing and (y) the Guarantor shall have delivered to the Agent an Officer's
Certificate stating that such consolidation, merger or succession and such
agreement of assumption comply with this Section 6(h) and that all conditions
precedent, if any, provided for in this Guaranty relating to such transaction
have been complied with. In addition to the foregoing, if any such merger or
consolidation of the Guarantor shall result in a Change of Control of the
Guarantor, then the Noteholders shall have the rights set forth in the Loan
Agreement.
(i) Restrictions on Dividends. Until such time as the Solvency
Level of The Cronos Group, as computed based on the most recently available
financial statements delivered by the Guarantor pursuant to Section 6(g) hereof,
exceeds 30%, the Guarantor shall not declare or pay
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any dividend, in cash or in kind. For purposes of this Section 6(i), "Solvency
Level" shall mean a fraction (expressed as a percentage) the numerator of which
shall be an amount equal to the Tangible Net Worth of The Cronos Group and the
denominator of which shall be equal to the total assets of The Cronos Group.
(j) Covenants with respect to Cronos Holdings Investments (US)
Inc. and Cronos Capital Corp.
(i) The Guarantor shall (A) at all times maintain Cronos
Holdings Investments (U.S.), Inc. as a direct wholly-owned
subsidiary and (B) shall cause Cronos Holdings Investments
(U.S.), Inc. to at all times maintain Cronos Capital Corp. as a
direct wholly-owned subsidiary.
(ii) The Guarantor shall cause each of Cronos Holdings
Investments (U.S.), Inc. and Cronos Capital Corp. (each, a
"Company") to not seek dissolution or liquidation in whole or in
part or reorganization of its business or affairs. In addition,
the Guarantor shall cause each such Company to be operated in
such a manner that it shall not be substantively consolidated
with the trust estate of any other person in the event of the
bankruptcy or insolvency of such Company or such other person.
(iii) The Guarantor shall not sell, assign, transfer,
pledge or otherwise encumber its shareholdings in Cronos
Holdings Investments (U.S.), Inc., and shall cause Cronos
Holdings Investment (U.S.), Inc. to not assign, transfer, sell,
pledge or otherwise encumber the shares of Cronos Capital Corp.
(iv) Notwithstanding any provision of law which
otherwise empowers each Company, the Guarantor shall not permit
either Cronos Holdings Investments (U.S.), Inc. or Cronos
Capital Corp. to (i) consolidate or merge with or into any other
person or dissolve or liquidate in whole or in part or transfer
its properties and assets substantially as an entirety to any
other person, (ii) hold itself out as being liable for the debts
of any other person, (iii) act other than in its corporate name
and through its duly authorized officers or agents, (iv) loan
monies to or guarantee the Indebtedness of any Affiliate
thereof, (v) commingle its funds or other assets with those of
any other person, (vi) create, incur, assume, guarantee or in
any manner become liable in respect of any funded Indebtedness,
or (vii) take any other action or engage in any other activity
that would be inconsistent with maintaining the separate legal
identity of such Company.
(k) Collections on the Class C Note. Promptly (but in no event
later than two Business Days after receipt thereof) the Guarantor shall promptly
remit to the Agent for deposit in the Trust Account all amounts which the
Guarantor receives in respect of the Class C Note.
(l) Escrowed Shares. Promptly (but in no event later than two
Business Days after receipt thereof) the Guarantor shall remit to the Agent for
deposit in the Trust Account the total
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amount of all remittances received with respect to the Escrowed Shares. Promptly
(but in no event later than two Business Days) after the Escrowed Shares are
released to the Guarantor, the Guarantor shall sell the Escrowed Shares at the
then market price and remit the proceeds thereof to the Agent for deposit in the
Trust Account for application in accordance with the terms of the Transaction
Documents.
SECTION 7. GUARANTOR EVENTS OF DEFAULT. Any one or more of the
following events shall constitute a Guarantor Event of Default:
(a) the Guarantor shall default in making payment when due of
any Guaranteed Obligation;
(b) breach by the Guarantor of any of the covenants set forth in
Section 6(g) (which breach of such Section 6(g) shall not have been cured within
10 days), Section 6(h) or Section 6(i) hereof;
(c) default in the performance, or breach, of any covenant of
the Guarantor in any Transaction Document, (to the extent not otherwise
addressed in this Section 7) which breach materially and adversely affects the
interest of the Agent or any Noteholder and continues for a period of 30 days
after the earliest of (i) any Authorized Officer of the Guarantor, first
acquiring knowledge thereof, (ii) the Agent's giving written notice thereof to
the Guarantor, or (iii) any Noteholder giving written notice thereof to the
Guarantor and the Agent;
(d) any representation or warranty of the Guarantor made in any
other Transaction Document shall prove to be incorrect in any material respect
as of the time when the same shall have been made which breach materially and
adversely affects the interest of the Agent or any Noteholder;
(e) the entry of a decree or order for relief by a court having
jurisdiction in respect of the Guarantor in any involuntary case under any
applicable Insolvency Law, or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, or sequestrator
(or other similar official) for the Guarantor, or for any substantial part of
its properties, or ordering the winding up or liquidation of their respective
affairs, and the continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days;
(f) the commencement by the Guarantor of a voluntary case under
any applicable Insolvency Law, or other similar law now or hereafter in effect,
or the consent by the Guarantor to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee or sequestrator (or other
similar official) of the Guarantor or any substantial part of their respective
properties, or the making by the Guarantor of any general assignment for the
benefit of creditors, or the failure by the Guarantor generally to pay its debts
as they become due, or the taking of any action by the Issuer in furtherance of
any such action; and
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(g) if any judgment against the Guarantor or any attachment,
execution, levy or restraining notice against its property in excess of $250,000
remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a
period of thirty (30) days;
(h) if Guarantor shall default (as principal or guarantor or
other surety) in any payment of principal or interest on any material obligation
for money borrowed other than the Obligations, or if any other default under any
material agreement after expiration of any applicable grace period under which
any such obligation is created or under any instrument securing or evidencing
such obligation, if the effect of such other default is to cause, or permit the
holder of such obligation to cause, such obligation to become due prior to its
stated maturity;
(i) if the validity or enforceability of this Guaranty or any
other Guarantor Document is contested (by the Guarantor or any Affiliate
thereof) or if Guarantor or party to any other Guarantor Document denies
liability thereunder.
SECTION 8. Remedies. In case an Event of Default shall have
occurred under Subsection 7(e), all of the Guaranteed Obligations shall
forthwith automatically be immediately due and payable and the Agent shall have
all the rights and remedies set forth below in Subsections 8(b) through 8(e). In
case any other Guarantor Event of Default shall have occurred the Agent shall
have the following rights and remedies:
(a) at any time thereafter and so long as such Guarantor Event
of Default shall be continuing, to declare all of the Guaranteed Obligations to
be immediately due and payable;
(b) upon the occurrence of a Guarantor Event of Default, to
demand payment of an amount equal to the difference between (x) the Aggregate
Maximum Guaranteed Payment and (y) the aggregate amount of all payments
previously made by the Guarantor under this Guaranty;
(c) to take any action at law or in equity to enforce payment,
performance and observance of the Guaranteed Obligations, or to recover damages
for breach thereof;
(d) to exercise any and all rights under the Guaranty and each
of the other Transaction Documents;
(e) to exercise any and all rights and remedies conferred upon
the Agent by applicable law; and
(f) to exercise the right of setoff against any assets of the
Guarantor held by Agent.
The Agent, in its sole discretion, shall have the right to
proceed first and directly against Guarantor under this Guaranty without
proceeding against or exhausting any other remedies which it may have and
without resorting to any other security held by the Agent under the other
Transaction Documents.
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SECTION 9. CONSENTS. Guarantor hereby consents that any or all
of the following actions may be taken or things done without notice to Guarantor
and without affecting the liability of Guarantor under this Guaranty:
(a) The time for Issuer's, Seller's or Manager's performance of
or compliance with any of the obligations under the Loan Agreement or any
Transaction Document may be accelerated or extended or such performance or
compliance may be waived by the Agent, acting on behalf of and as directed by
the Lenders (including, without limitation, the renewal, extension, acceleration
or other change in the time of payment, or other terms of, the indebtedness,
such as an increase or decrease in the rate of interest thereon);
(b) Any of the acts referred to in the Transaction Documents may
be performed, upon default thereunder, by, or on behalf of; and
(c) The terms of any of the Guaranteed Obligations or any term
or condition in the Loan Agreement may be amended as provided for therein by
Issuer and the Agent for the purpose of adding any provisions thereto or
changing in any manner the rights or obligations of Issuer or the Agent
thereunder;
SECTION 10. DUE DILIGENCE. Guarantor acknowledges, independently
of and without reliance on the Agent, Lenders or any other party to the
Transaction Documents, that it is satisfied that the Issuer has the resources to
meet its obligations under the Transaction Documents and performed its own legal
review of this Guaranty, the Loan Agreement and all of the other Transaction
Documents and all related filings, and Guarantor is not relying on any of such
Persons with respect to any of the aforesaid items. Guarantor has established
adequate means of obtaining from Issuer, each Seller and the Manager on a
continuing basis financial and other information pertaining to its financial
condition. Guarantor agrees to keep adequately informed from such means of any
facts, events or circumstances which might in any way affect Guarantor's risks
hereunder, and Guarantor further agrees that neither the Agent nor any Lender
shall have any obligation to disclose to Guarantor information or material with
respect to Issuer, any Seller or the Manager acquired in the course of each such
person's respective relationships with those Persons.
SECTION 11. TOLLING OF STATUTE OF LIMITATIONS. Guarantor agrees
that any payment or performance of any of the Guaranteed Obligations or other
acts which tolls any statute of limitations applicable to the Guaranteed
Obligations shall also toll the statute of limitations applicable to Guarantor's
liability under this Guaranty.
SECTION 12. WAIVER. Guarantor hereby expressly waives diligence,
presentment, demand for payment, protest, benefit of any statute of limitations
affecting Issuer's liability under the Notes, the Loan Agreement or any other
Transaction Document or the enforcement of this Guaranty, discharge due to any
disability of Issuer, any Seller or the Manager, any defenses of Issuer, any
Seller or the Manager to its obligations under the Notes, the Loan Agreement or
any other Transaction Document which under the law has the effect of discharging
such Person from the Guaranteed Obligations as to which this Guaranty is sought
to be enforced, the benefit of any act or omission by any Person which directly
or indirectly results in or aids the discharge of Issuer from
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any of the Guaranteed Obligations by operation of law or otherwise, all notices
whatsoever, including, without limitation, notice of acceptance of this Guaranty
and the incurring of the Guaranteed Obligations, and any requirement that the
Agent exhaust any right, power or remedy or proceed against Issuer, the
Collateral or any other guarantor of, or any other Person liable for, any of the
Guaranteed Obligations, or any portion thereof. Guarantor specifically agrees
that it will not be necessary or required, and Guarantor shall not be entitled
to require, that the Agent file suit or proceed to assert or obtain a claim for
personal judgment against Issuer, any Seller or the Manager, as applicable for
the Guaranteed Obligations or to make any effort at collection or enforcement of
the Guaranteed Obligations from Issuer or file suit or proceed to obtain or
assert a claim for personal judgment against Guarantor or any other guarantor or
other party liable for the Guaranteed Obligations or make any effort at
collection of the Guaranteed Obligations from any such party or exercise or
assert any other right or remedy to which the Agent is or may be entitled in
connection with the Guaranteed Obligations or guaranty relating thereto or
assert or file any claim against the assets of Issuer, before or as a condition
of enforcing the liability of Guarantor under this Guaranty.
SECTION 13. CERTAIN RIGHTS. In pursuing their respective rights
under this Guaranty, neither the Agent nor any Lenders need (i) join Guarantor
in any suit against the Issuer, any Seller or the Manager, as the case may be,
nor (ii) join the Issuer, any Seller or the Manager, as the case may be, in any
suit against Guarantor or any Affiliate of the Guarantor.
SECTION 14. CONTINUING GUARANTY. This Guaranty shall be a
continuing guaranty and any other guarantors of all or a portion of the
Guaranteed Obligations may be released without affecting the liability of
Guarantor hereunder.
SECTION 15. INDEMNITY. In addition to and without limiting or
impairing in any manner whatsoever Guarantor's other obligations under this
Guaranty or any other document executed and delivered by Guarantor to a Lender
or the Agent, Guarantor agrees to indemnify the Agent and each Lender, from and
against any and all reasonable costs, expenses, losses and liabilities relating
to the enforcement of claims under this Guaranty (including, without limitation,
enforcement of this Guaranty), except claims, costs, expenses, losses or
liabilities resulting from such Lender's or Agent's gross negligence or willful
misconduct. The amount of the indemnities payable by the Guarantor pursuant to
this Section 15 shall not be subject to the limitation on payments set forth in
Section 2 of this Guaranty.
SECTION 16. NOTICE. All notices and other communications
provided for hereunder shall be in writing or telex: if to Guarantor, at its
address at 00 Xxxxx Xxxxxxx X-0000 Xxxxxxxxxx, Xxxxxxxxx: Chief Financial
Officer, Fax # 000-000-000, copy to CCL at Orchard Lea, Windsor, UK if to the
Agent, at the address set forth in Section 1307 of the Loan Agreement, and if to
either Lender, at the respective addresses set forth in the Note Register. All
such notices and communications shall be sent in the manner, and shall be
effective on the dates, set forth in Section 1307 of the Loan Agreement.
SECTION 17. REINSTATEMENT. Notwithstanding any provision in the
Loan Agreement, the Notes or any other Transaction Document to the contrary, the
liability of Guarantor hereunder shall be reinstated and revived and the rights
of each Guaranteed Party shall continue if
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and to the extent that for any reason any payment by or on behalf of Issuer, any
Seller or the Manager, as the case may be, is rescinded or must be otherwise
restored by a Guaranteed Party, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, all as though such amount had not
been paid. The determination as to whether any such payment must be rescinded or
restored shall be made by such Guaranteed Party in its sole discretion;
provided, however, that if any Guaranteed Party chooses to contest any such
matter at the request of Guarantor, Guarantor agrees to indemnify and hold
harmless any such Guaranteed Party from all costs and expenses (including,
without limitation, attorneys' fees) related to such request.
SECTION 18. NO WAIVER, AMENDMENTS, ETC. No failure on the part
of any Guaranteed Party to exercise, no delay in exercising and no course of
dealing with respect to, 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. This Guaranty may not be amended or modified except by written
agreement executed by each of the Guarantor, the Agent and each Lender and no
consent or waiver hereunder shall be valid unless in writing and executed in
accordance with the provisions of this Guaranty.
SECTION 19. COMPROMISE AND SETTLEMENT. No compromise,
settlement, release, renewal, extension, indulgence, change in, waiver or
modification of any of the Guaranteed Obligations or the release or discharge of
Issuer, any Seller or Manager, as the case may be, from the performance of any
of the Guaranteed Obligations shall release or discharge Guarantor from this
Guaranty.
SECTION 20. INSOLVENCY. The voluntary or involuntary
liquidation, dissolution, sale or other disposition of all or substantially all
the assets and liabilities, receivership, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization, or other proceeding affecting any
Issuer, any Seller, the Manager or the Guarantor or the disaffirmance of Notes,
the Loan Agreement or any Transaction Document, or Guarantor's obligations
hereunder in any such proceeding shall not release or discharge Guarantor from
this Guaranty.
SECTION 21. EXPENSES. In addition to its guaranty hereunder of
the Guaranteed Obligations, Guarantor hereby agrees to pay all reasonable costs
and expenses, including, without limitation, attorneys' fees, paid or incurred
by the Agent and each Lender in collecting or enforcing any or all of the
Guaranteed Obligations or in connection with the enforcement of this Guaranty.
SECTION 22. ENTIRE AGREEMENT. This Guaranty and all documents
mentioned or contemplated herein constitute and contain the entire agreement of
the parties and supersede any and all prior and contemporaneous agreements,
negotiations, correspondence, understandings and communications between the
parties, whether written or oral, respecting the subject matter hereof.
SECTION 23. SEVERABILITY. If any provision of this Guaranty is
held to be unenforceable for any reason, it shall be adjusted, if possible,
rather than voided in order to achieve the intent of the parties to the extent
possible. In any event, all other provisions of this Guaranty shall be deemed
valid and enforceable to the fullest extent possible.
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SECTION 24. SUBORDINATION OF INDEBTEDNESS. Any indebtedness or
other obligation of Issuer, any Seller or Manager now or hereafter held by or
owing to Guarantor is hereby subordinated in time and right of payment of the
Guaranteed Obligations to the Guaranteed Parties; and any such indebtedness to
Guarantor is assigned to the Guaranteed Parties, as collateral security for this
Guaranty and the Guaranteed Obligations, and if any the Guaranteed Parties so
requests, shall be collected, enforced and received by Guarantor in trust for
the Guaranteed Parties, and be paid over to the Guaranteed Parties, but without
reducing or affecting in any manner the liability of Guarantor under the other
provisions of this Guaranty. Any notes now or hereafter evidencing any such
indebtedness to Guarantor shall be marked with a legend that the same are
subject to this Guaranty and shall be delivered to the Agent. Guarantor will,
and the Agent is hereby authorized, in the name of Guarantor from time to time,
to execute and file financing statements and continuation statements and execute
such other documents and take such other action as the Agent deems necessary or
appropriate to perfect, preserve and enforce the rights of the Guaranteed
Parties hereunder.
SECTION 25. ASSIGNMENT; GOVERNING LAW. This Guaranty shall be
binding upon and inure to the benefit of Guarantor, the Guaranteed Parties, and
their respective permitted successors and assigns and any other Lender, except
that Guarantor shall not have the right to assign its rights hereunder or any
interest herein unless authorized by a writing executed by all of the parties
hereto. This Guaranty shall be governed by, and construed in accordance with,
the laws of the State of New York without giving effect to the conflict of laws
principals thereof.
SECTION 26. ACTIONS BY LENDERS. Subject to the limitations and
subordination set forth in the Loan Agreement, each Lender shall have the power
to enforce this Guaranty against Guarantor to the full extent of Guarantor's
obligations hereunder.
SECTION 27. CONSENT TO JURISDICTION. Guarantor hereby
irrevocably consents to the non-exclusive personal jurisdiction of the State and
Federal courts located in the Southern District of New York, in any action,
claim or other proceeding arising out of any dispute in connection with this
Guaranty, any rights or obligations hereunder or thereunder or the performance
of such rights and obligations. Guarantor hereby irrevocably consents to the
service of a summons and complaint and other process in any action, claim or
proceeding brought by any Lender in connection with this Guaranty, any rights or
obligations hereunder or thereunder or the performance of such rights and
obligations, on behalf of itself or its property, in the manner specified in
Section 16 above. Nothing in this Section 27 shall affect the right of any
Lender to serve legal process in any other manner permitted by applicable law or
affect the right of either Lender to bring any action or proceeding against
Guarantor or its properties in the courts of any other jurisdictions.
SECTION 28. TERMINATION OF GUARANTY. This Guaranty shall
terminate upon payment in full of the Guaranteed Obligations in full; provided,
however, this Section shall not affect the obligations of Guarantor pursuant to
Section 15 of this Guaranty.
SECTION 29. WAIVER OF JURY TRIAL. GUARANTOR HEREBY IRREVOCABLY
WAIVES ITS RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR
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OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS GUARANTY,
ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH
RIGHTS AND OBLIGATIONS.
SECTION 30. WAIVER OF SPECIFIC RIGHTS. GUARANTOR HEREBY
IRREVOCABLY WAIVES AND RELEASES:
(a) ANY AND ALL RIGHTS IT MAY HAVE AT ANY TIME (WHETHER ARISING
DIRECTLY OR INDIRECTLY, BY OPERATION OF LAW, CONTRACT OR OTHERWISE) TO REQUIRE
THE MARSHALING OF ANY ASSETS OF ISSUER, ANY SELLER OR MANAGER, AS THE CASE MAY
BE, WHICH RIGHT OF MARSHALING MIGHT OTHERWISE ARISE FROM ANY SUCH PAYMENTS MADE
OR OBLIGATIONS PERFORMED;
(b) UNTIL SUCH TIME AS THE GUARANTEED OBLIGATION ARE PAID IN
FULL AND ALL RIGHTS THAT WOULD RESULT IN GUARANTOR BEING DEEMED A "CREDITOR" OF
ISSUER, ANY SELLER OR MANAGER, AS THE CASE MAY BE, UNDER THE UNITED STATES
BANKRUPTCY CODE, ON ACCOUNT OF PAYMENTS MADE OR OBLIGATIONS PERFORMED BY
GUARANTOR TO THE EXTENT SUCH CHARACTERIZATION MATERIALLY IMPAIRS THE RIGHT OF
ANY GUARANTEED PARTY HEREUNDER; AND
(c) ANY CLAIM, RIGHT OR REMEDY WHICH GUARANTOR MAY NOW HAVE OR
HEREAFTER ACQUIRE AGAINST ISSUER, ANY SELLER OR MANAGER, AS THE CASE MAY BE,
THAT ARISES HEREUNDER AND/OR FROM THE PERFORMANCE BY GUARANTOR HEREUNDER
INCLUDING, WITHOUT LIMITATION, ANY CLAIM, REMEDY OR RIGHT OF SUBROGATION,
REIMBURSEMENT, EXONERATION, CONTRIBUTION, INDEMNIFICATION, OR PARTICIPATION IN
ANY CLAIM, RIGHT OR REMEDY OF ANY GUARANTEED PARTY AGAINST ISSUER, ANY SELLER OR
MANAGER, AS THE CASE MAY BE, OR ANY COLLATERAL SECURITY WHICH ANY GUARANTEED
PARTY NOW HAS OR MAY HEREAFTER ACQUIRE, WHETHER OR NOT SUCH CLAIM, RIGHT OR
REMEDY ARISES IN EQUITY, UNDER CONTRACT, BY STATUTE, UNDER COMMON LAW OR
OTHERWISE.
(d) ANY RIGHT TO ASSERT A COUNTERCLAIM IN ANY ACTION OR
PROCEEDING BROUGHT AGAINST IT BY THE AGENT OR ANY LENDER.
SECTION 31. GENERAL INTERPRETIVE PRINCIPLES. For purposes of
this Guaranty except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Guaranty have the meanings
assigned to them in this Guaranty and include the plural as well as the
singular, and the use of any gender herein shall be deemed to include the other
gender;
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(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles as in effect on the date hereof;
(c) references herein to "Articles", "Sections", "Subsections",
"paragraphs", and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, paragraphs and other subdivisions of
this Guaranty;
(d) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to paragraphs and
other subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words of
similar import refer to this Guaranty as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without
limitation by reason of enumeration.
SECTION 32. FURTHER ASSURANCES. Guarantor agrees to do such
further acts and things and to execute and deliver such additional assignments,
agreements, powers and instruments as are required to carry into effect the
purposes of this Guaranty or to better assure and confirm unto the Agent or the
Lenders their rights, powers and remedies hereunder.
SECTION 33. COUNTERPARTS. This Guaranty may be executed in two
or more counterparts (and by different parties on separate counterparts), each
of which shall be an original, but all of which shall constitute one and the
same instrument.
SECTION 34. WAIVER OF IMMUNITY. To the extent that any party
hereto or any of its property is or becomes entitled at any time to any immunity
on the grounds of sovereignty or otherwise from any legal actions, suits or
proceedings, from set-off or counterclaim, from the jurisdiction or judgment of
any competent court, from service of process, from execution of a judgment, from
attachment prior to judgment, from attachment in aid of execution, or from
execution prior to judgment, or other legal process in any jurisdiction, such
party, for itself and its successors and assigns and its property, does hereby
irrevocably and unconditionally waive, and agrees not to plead or claim, any
such immunity with respect to its obligations, liabilities or any other matter
under or arising out of or in connection with this Guaranty, the other
Transaction Documents or the subject matter hereof or thereof, subject, in each
case, to the provisions of the Transaction Documents and mandatory requirements
of applicable law.
SECTION 35. JUDGMENT CURRENCY. This is an international
financing transaction in accordance with which the specification of Dollars is
of the essence, and Dollars shall be the currency of account in the case of all
obligations under the Transaction Documents. The payment obligations of any
Person under the Transaction Documents shall not be discharged by an amount paid
in a currency, or in a place other than that specified with respect to such
obligations, whether pursuant to a judgment or otherwise, to the extent that the
amount so paid on prompt conversion to Dollars and transfer to the specified
place of payment under normal banking procedures does not
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yield the amount of Dollars, in such place, due under the governing Transaction
Documents. In the event that any payment, whether pursuant to a judgment or
otherwise, upon conversion and transfer does not result in payment of such
amount of Dollars in the specified place of payment, the obligee of such payment
shall have a separate cause of action against the party making the same for the
additional amount necessary to yield the amount due and owing under such
Transaction Documents. If, for the purpose of obtaining a judgment in any court
with respect to any obligation of a party under any of the Transaction Documents
or any of the agreements contemplated thereby, it shall be necessary to convert
to any other currency any amount in Dollars due thereunder and a change shall
occur between the rate of exchange applied in making such conversion and the
rate of exchange prevailing on the date of payment of such judgment, the
respective judgment debtor agrees to pay such additional amounts (if any) as may
be necessary to insure that the amount paid on the date of payment is the amount
in such other currency which, when converted into Dollars and transferred to New
York, New York, in accordance with normal banking procedures will result in the
amount then due under the respective Transaction Document in Dollars. Any amount
due from the respective judgment debtor shall be due as a separate debt and
shall not be affected by or merged into any judgment being obtained for any
other sum due under or in respect of any Transaction Document. In no event,
however, shall the respective judgment debtor be required to pay a larger amount
in such other currency, at the rate of exchange in effect on the date of payment
than the amount of Dollars stated to be due under the respective Transaction
Document, so that in any event the obligations of the respective judgment debtor
under the Transaction Document will be effectively maintained as Dollar
obligations.
SECTION 36. NO SUBROGATION. Notwithstanding any payments made by
the Guarantor hereunder, or any set-off or application of funds of the Guarantor
by the Agent or the Lenders, the Guarantor waives, for so long as the Guaranteed
Obligations remain outstanding, any right that it may have to be subrogated to
any of the rights of the Agent or the Lenders against any Person or any right of
offset held by the Agent for the payment of the Guaranteed Obligations or to
otherwise seek reimbursement, indemnity or contribution or any other payment
from the any Person.
SECTION 37. SUCCESSORS AND ASSIGNS. This Guaranty shall be
binding upon the Guarantor and its permitted successors and assigns, and shall
inure to the benefit of the Agent and the Lenders and their respective
successors and assigns. The Guarantor shall not assign its obligations hereunder
without the prior written consent of the Agent and the Majority of the Holders.
SECTION 38. BENEFICIARIES. The Guarantor is issuing this
Guaranty for the sole and exclusive benefit of the Agent and the Lenders.
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IN WITNESS WHEREOF, Guarantor has executed and delivered this
Guaranty as of the date first written above.
THE CRONOS GROUP
By: /s/ XXXXXX XXXXX
---------------------------------
Name: Xxxxxx Xxxxx
-------------------------------
Title: CEO
------------------------------
APPROVED AND ACCEPTED
MEESPIERSON N.V.,
as Agent
By: /s/ J.G.H.M. HANEGRAFF
---------------------------------
Name: J.G.H.M. Hanegraff
-------------------------------
Title: Senior Account Manager
------------------------------
