Exhibit 4.6
GUARANTEE
This GUARANTEE, dated as of June 27,, 1997, is executed and delivered
by Hvide Marine Incorporated, a Florida corporation (the "GUARANTOR"), for the
benefit of the Holders (as defined herein) from time to time of the Common
Securities (as defined herein) of Hvide Capital Trust, a Delaware statutory
business trust (the "ISSUER").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust,
dated as of even date herewith, among the Trustees named therein and the
Guarantor, as Depositor, (as may be amended or supplemented from time to time,
the "DECLARATION"), the Issuer is issuing 2,000,000 (2,300,000 if the
over-allotment option is exercised in full) of its 6 1/2% Trust Convertible
Preferred Securities (liquidation preference $50 per preferred security) (the
"PREFERRED SECURITIES") representing the preferred undivided beneficial
interests in the assets of the Issuer and having the terms set forth in the
Declaration;
WHEREAS, the Preferred Securities will be issued by the Issuer and the
proceeds thereof, together from the issuance of all of the common undivided
beneficial interests in the assets of the Issuer (the "COMMON SECURITIES") to
Guarantor, will be used to purchase the Debentures (as defined in the
Declaration) of the Guarantor, which will be deposited with The Bank of New
York, as Property Trustee, under the Declaration, as trust assets;
WHEREAS, as an incentive for the Holders to purchase the Common
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth herein, to pay on a subordinated basis to the Holders of
the Common Securities the Guarantee Payments (as defined herein) and to make
certain other payments on the terms and conditions set forth herein; and
WHEREAS, the Guarantor is also executing and delivering a Guarantee
Agreement (the "PREFERRED GUARANTEE") in substantially identical terms to this
Guarantee for the benefit of the holders of the Preferred Securities, except
that if an event of default (as defined in the Indenture (as defined herein)),
has occurred and is continuing, the rights of holders of the Preferred
Securities to receive Guarantee Payments (as defined in the Preferred Guarantee)
under the Preferred Guarantee shall not be subordinated to the rights of Holders
of Common Securities to receive Guarantee Payments (as defined herein) under
this Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Common Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers the Guarantee for the benefit of
the Holders, from time to time, of the Common Securities as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1. DEFINITIONS. As used in this Guarantee, the terms set
forth below shall, unless the context otherwise requires, have the following
meanings. Capitalized or
otherwise defined terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Declaration as in effect on the date
hereof.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling by or controlled by or under direct common control with
such specified Person, provided, however, that an Affiliate of the Guarantor
shall not be deemed to include the Issuer. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"CLASS A COMMON STOCK" shall mean the Class A Common Stock, par value
$0.001 per share, of the Guarantor.
"DISTRIBUTIONS" means amounts payable in respect of the Preferred
Securities and the Common Securities pursuant to Section 4.1 of the Declaration.
"EVENT OF DEFAULT" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee.
"GUARANTEE PAYMENTS" means the following payments or distributions,
without duplication, with respect to the Common Securities, to the extent not
paid or made by or on behalf of the Issuer: (i) any accumulated and unpaid
Distributions (as defined in the Declaration) required to be paid on the Common
Securities, to the extent that the Issuer shall have funds on hand available
therefor at such time, (ii) the redemption price, including all accumulated and
unpaid Distributions to the date of redemption (the "REDEMPTION PRICE"), with
respect to the Common Securities called for redemption by the Issuer to the
extent the Issuer shall have funds on hand available therefor, and (iii) upon a
voluntary or involuntary dissolution, winding-up or liquidation of the Issuer,
unless Debentures are distributed to the Holders, the lesser of (a) the
aggregate of the liquidation preference of $50 per Common Security plus
accumulated and unpaid Distributions thereon to the date of payment, to the
extent the Issuer shall have funds on hand available to make such payment at
such time, and (b) the amount of assets of the Issuer remaining available for
distribution to Holders in liquidation of the Issuer (in either case, the
"LIQUIDATION DISTRIBUTION").
"HOLDER" means any holder, as registered on the books and records of
the Issuer, of any Common Securities; provided, however, that in determining
whether the holders of the requisite percentage of Common Securities have given
any request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor, the Guarantee Trustee or any Affiliate of the Guarantor or the
Guarantee Trustee.
"INDENTURE" means the Indenture dated as of June 27, 1997, between the
Guarantor and The Bank of New York, as trustee, as amended or supplemented from
time to time, pursuant to which the Debentures were issued.
"LIST OF HOLDERS" has the meaning specified in Section
"MAJORITY IN LIQUIDATION PREFERENCE OF SECURITIES" means except as
provided by the Trust Indenture Act, a vote by the Holder(s), voting separately
as a class, of more than 50% of the liquidation preference of all the
outstanding Common Securities of the Issuer.
"PERSON" means any individual, corporation, partnership, trust, joint
venture, association, joint stock company, limited liability company,
unincorporated association, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
ARTICLE 2
GUARANTEE
SECTION 2.1. GUARANTEE. The Guarantor irrevocably and unconditionally
agrees to pay in full to the Holders the Guarantee Payments (without duplication
of amounts theretofore paid by or on behalf of the Issuer), as and when due,
regardless of any defense, right of set-off or counterclaim which the Issuer may
have or assert other than the defense of payment. The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders.
SECTION 2.2. WAIVER OF NOTICE AND DEMAND. The Guarantor hereby waives
notice of acceptance of the Guarantee and of any liability to which it applies
or may apply, presentment, demand for payment, any right to require a proceeding
first against, the Issuer or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice or
redemption and all other notices and demands.
SECTION 2.3. OBLIGATIONS NOT AFFECTED. The obligations, covenants,
agreements and duties of the Guarantor under this Guarantee shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the Common
Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion of the Distributions (other than an extension of time
for payment of Distributions that results from the extension of any
interest payment period on the Debentures as so provided in the
Indenture), Redemption Price, Liquidation Distribution or any other
sums payable under the terms of the Common Securities or the extension
of time for the performance of any other obligation under, arising out
of, or in connection with, the Common Securities;
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the
terms of the Common Securities, or any action on the part of the
Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Common Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 2.3 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and
all circumstances.
There shall be no obligation of the Holders or the Trust to give notice
to, or obtain the consent of, the Guarantor with respect to the happening of any
of the foregoing.
SECTION 2.4. RIGHTS OF HOLDERS. The Guarantor expressly acknowledges
that:
(a) this Guarantee will be deposited with the Trust to be held
for the benefit of the Holders;
(b) Each Holder shall have the right to enforce this Guarantee;
(c) the Holders of a Majority in Liquidation Preference of the Common
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trust in respect of this Guarantee or
to direct the exercise of any trust or power conferred upon the Trust under this
Guarantee;
(d) any Holder may institute a legal proceeding directly against the
Guarantor to enforce such Holder's rights under this Guarantee, without first
instituting a legal proceeding against the Issuer or any other Person;
(e) if an Event of Default with respect to the Debentures constituting
the failure to pay interest or principal on the Debentures on the date such
interest or principal is otherwise payable has occurred and is continuing, the
any Holder shall have the right, which is absolute and unconditional, to proceed
directly against the Guarantor to obtain Guarantee Payments without instituting
a legal proceeding against the Issuer or any other Party ; and
(f) Guarantor hereby waives any right or remedy to require that any
action be brought against the Issuer, or any other Person, before proceeding
directly against the Issuer.
SECTION 2.5. GUARANTEE OF PAYMENT. This Guarantee creates a guarantee
of payment
and not of collection. This Guarantee will not be discharged except by payment
of the Guarantee Payments in full (without duplication of amounts theretofore
paid by the Issuer) or upon distribution of Debentures to Holders as provided in
the Declaration.
SECTION 2.6. SUBROGATION. The Guarantor shall be subrogated to all (if
any) rights of the Holders against the Issuer in respect of any amounts paid to
the Holders by the Guarantor under this Guarantee and shall have the right to
waive payment by the Issuer pursuant to Section 2.1; provided, however, that the
Guarantor shall not (except to the extent required which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Guarantee, if, at the time of any such
payment, any amounts are due and unpaid under this Guarantee. If any amount
shall be paid to the Guarantor in violation of the preceding sentence, the
Guarantor agrees to hold such amount in trust for the Holders and to pay over
such amount to the Holders.
SECTION 2.7. INDEPENDENT OBLIGATIONS. The Guarantor acknowledges that
its obligations hereunder are independent of the obligations of the Issuer with
respect to the Common Securities and that the Guarantor shall be liable as
principal and as debt or hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee notwithstanding the occurrence of any event referred to
in subsections (a) through (g), inclusive, of Section 2.3.
ARTICLE 3
COVENANTS AND SUBORDINATION
SECTION 3.1. SUBORDINATION. The Guarantee will constitute an unsecured
obligation of the Guarantor and will rank subordinate and junior in right of
payment to all liabilities of the Guarantor and pari passu with any guarantee
now or hereafter entered into by the Guarantor in respect of the Preferred
Securities or of any preferred or preference stock of any affiliate of the
Guarantor; provided, however, upon the occurrence and during the continuance of
an Event of Default under the Declaration, the rights of the Holders of Common
Securities to receive Guarantee Payments will be subordinated to the rights of
the holders of the Preferred Securities.
SECTION 3.2. CERTAIN COVENANTS OF THE GUARANTOR.
(a) Guarantor covenants and agrees that if and so long as (i)
the Issuer is the holder of all the Debentures, (ii) a Tax Event (as defined in
the Declaration) in respect of the Issuer has occurred and is continuing and
(iii) the Guarantor has elected, and has not revoked such election, to pay
Additional Sums (as defined in the Declaration) in respect of the Common
Securities and Preferred Securities, the Guarantor will pay to the Issuer such
Additional Sums
(b) The Guarantor covenants and agrees that it will not, and
will not permit any of its subsidiaries to, (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation, payment
with respect to, any of the Guarantor's capital stock or (ii) make any payment
of principal, interest or premium, if any, on or repay or repurchase or redeem
any debt securities (including guarantees of indebtedness for money borrowed) of
the Guarantor that rank pari passu with or junior to the Debentures (other than
(A) any dividend, redemption, liquidation, interest, principal or guarantee
payment by Guarantor where the payment
is made by way of securities (including capital stock) that rank pari passu with
or junior to the securities on which such dividend, redemption, interest,
principal or guarantee payment is being made, (B) payments under this Agreement,
(C) purchases of Class A Common Stock related to the issuance of Class A Common
Stock under any of the Guarantor's benefit plans for its directors, officers or
employees, (D) as a result of a reclassification of the Guarantor's capital
stock or the exchange or conversion of one series or class of the Guarantor's
capital stock for another series or class of the Guarantor's capital stock and
(E) the purchase of fractional interests in shares of the Guarantor's capital
stock pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged) if at such time (1) there shall have
occurred and be continuing any event of which the Guarantor has actual knowledge
that, with the giving of notice or the lapse of time, or both, would constitute
an "Event of Default" under the Indenture with respect to the Debentures, (2)
the Guarantor shall be in default with respect to its payment of any obligations
under the Guarantee or (3) the Guarantor shall have given notice of its
selection of an Extension Period (as defined in the Indenture) as provided in
the Indenture with respect to the Debentures and shall not have rescinded such
notice, or such Extension Period, or any extension thereof, shall be continuing.
(c) The Guarantor covenants and agrees (i) to maintain
directly or indirectly 100% ownership of the Common Securities, provided that
certain successor Persons in transactions which are permitted by Article 8 of
the Indenture may succeed to the Guarantor's ownership of the Common Securities,
(ii) not to voluntarily terminate, wind-up or liquidate the Issuer, except (A)
in connection with a distribution of the Debentures to the holders of the Common
Securities in liquidation of the Issuer or (B) in connection with certain
mergers, consolidations or amalgamations permitted by the Declaration, (iii) to
use its reasonable efforts, consistent with the terms and provisions of the
Declaration, to cause the Issuer to remain classified as a grantor trust and not
as an association taxable as a Corporation for United States Federal Income tax
purposes, (iv) for so long as Common Securities are outstanding, not to convert
Debentures except pursuant to a notice of conversion delivered to the Conversion
Agent (as defined in the Declaration) by a Holder, (v) to maintain the
reservation for issuance of the number of shares of Class A Common Stock that
would be required from time to time upon the conversion of all the Debentures
then outstanding, (vi) to deliver shares of Class A Common Stock upon an
election by Holder to convert such Common Securities into or for Class A Common
Stock, and (vii) to honor all obligations relating to the conversion or exchange
of the Common Securities into or for Class A Common Stock or Debentures.
ARTICLE 4
TERMINATION
SECTION 4.1. TERMINATION. This Guarantee shall terminate and be of no
further force and effect upon (a) full payment of the Redemption Price (as
defined in the Declaration) of all Common Securities, (b) the distribution, if
any, of Debentures to the Holders in exchange for all of the Common Securities,
(c) full payment of the amounts payable in accordance with the Declaration upon
liquidation of the Issuer or (d) upon the distribution, if any, of Class A
Common Stock the Holders of the Common Securities in respect of the conversion
of all such Holders' Common Securities into Class A Common Stock.
Notwithstanding the foregoing, this Guarantee will continue to be effective or
will be reinstated, as the case may be, if at any time any Holder must restore
payment of any sums paid with respect to Common Securities or this Guarantee.
ARTICLE 5
MISCELLANEOUS
SECTION 5.1. SUCCESSORS AND ASSIGNS. All guarantees and agreements
contained in this Guarantee shall bind the successors, assigns, receivers,
trustees and representatives of the Guarantor and shall inure to the benefit of
the Holders of the Common Securities then outstanding. Except in connection with
a consolidation, merger or sale involving the Guarantor that is permitted under
Article 8 of the Indenture and pursuant to which the assignee agrees in writing
to perform the Guarantor's obligations hereunder, the Guarantor shall not assign
its obligations hereunder.
SECTION 5.2. AMENDMENTS. Except with respect to any changes which do
not adversely affect the rights of the Holders in any material respect (in which
case no consent of the Holders will be required), this Guarantee may only be
amended with the prior approval of the Holders of not less than a Majority in
Liquidation Preference of the Securities. The provisions of Article 6 of the
Declaration concerning meetings of the Holders shall apply to the giving of such
approval.
SECTION 5.3. NOTICES. Any notice, request or other communication
required or permitted to be given hereunder shall be in writing, duly signed by
the party giving such notice, and delivered, telecopied or mailed by first class
mail as follows: (a) if given to the Guarantor, to the address set forth below
or such other address as the Guarantor may give notice of to the Holders:
Hvide Marine Incorporated
0000 Xxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: General Counsel
(b) if given to the Issuer, at the Issuer's address set forth below or
such other address as the Issuer may give notice of to the Holders:
Hvide Capital Trust
c/o Hvide Marine Incorporated
0000 Xxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: General Counsel
with a copy to:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust Administration
(c) if given to any Holder, at the address set forth on the
books and records of the Issuer.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 5.4. BENEFIT. This Guarantee is solely for the benefit of
the Holders and is not separately transferable from the Common Securities.
SECTION 5.5. INTERPRETATION. In this Guarantee, unless the context
otherwise requires:
(a) capitalized terms used in this Guarantee but not defined
in the preamble hereto have the respective meanings assigned to them in Section
1.1;
(b) a term defined anywhere in this Guarantee has the same
meaning throughout;
(c) all references to "the Guarantee" or "this Guarantee" are
to this Guarantee as modified, supplemented or amended from time to time;
(d) all references in this Guarantee to Articles and Sections
are to Articles and Sections of this Guarantee unless otherwise specified;
(e) a reference to the singular includes the plural and vice
versa; and
(f) the masculine, feminine or neuter genders used herein
shall include the masculine, feminine and neuter genders.
SECTION 5.6. INTERPRETATION. Governing Law. THIS GUARANTEE SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW
PRINCIPLES THEREOF.
THIS INSTRUMENT MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS, EACH OF
WHICH SO EXECUTED SHALL BE DEEMED TO BE AN ORIGINAL, BUT ALL SUCH COUNTERPARTS
SHALL TOGETHER CONSTITUTE BUT ONE AND THE SAME INSTRUMENT.
THIS GUARANTEE is executed as of the day and year first above written.
HVIDE MARINE INCORPORATED
By:...................................
Name:
Title:
