EXHIBIT F
FORM OF
SUBSIDIARIES GUARANTY
SUBSIDIARIES GUARANTY, dated as of ________ __, 2001 (as
amended, modified, restated and/or supplemented from time to time, this
"Guaranty"), made by each of the undersigned guarantors (each a "Guarantor" and,
together with any other entity that becomes a guarantor hereunder pursuant to
Section 26 hereof, the "Guarantors"). Except as otherwise defined herein,
capitalized terms used herein and defined in the Credit Agreement (as defined
below) shall be used herein as therein defined.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, General Maritime Corporation (the Borrower"), the
lenders from time to time party thereto (the "Lenders"), and Christiania Bank og
Kreditkasse ASA, New York Branch, as Administrative Agent (in such capacity,
together with any successor Administrative Agent, the "Administrative Agent"),
have entered into a Credit Agreement, dated as of ________ __, 2001 (as amended,
modified, restated and/or supplemented from time to time, the "Credit
Agreement"), providing for the making of Loans to the Borrower as contemplated
therein (the Lenders, the Collateral Agent and the Administrative Agent are
herein called the "Lender Creditors");
WHEREAS, the Borrower may at any time and from time to time
enter into one or more Interest Rate Protection Agreements or Other Hedging
Agreements with one or more Lenders or any affiliate thereof (each such Lender
or affiliate, even if the respective Lender subsequently ceases to be a Lender
under the Credit Agreement for any reason, together with such ▇▇▇▇▇▇'s or
affiliate's successors and assigns, if any, collectively, the "Other Creditors"
and, together with the Lender Creditors, the "Secured Creditors");
WHEREAS, each Guarantor is a direct or indirect Subsidiary of
the Borrower;
WHEREAS, it is a condition to the making of Loans to the
Borrower under the Credit Agreement that each Guarantor shall have executed and
delivered this Guaranty; and
WHEREAS, each Guarantor will obtain benefits from the
incurrence of Loans to the Borrower under the Credit Agreement and the entering
into by the Borrower and/or one or more of its Subsidiaries of Interest Rate
Protection Agreements or Other Hedging Agreements and, accordingly, desires to
execute this Guaranty in order to satisfy the conditions described in the
preceding paragraph;
NOW, THEREFORE, in consideration of the foregoing and other
benefits accruing to each Guarantor, the receipt and sufficiency of which are
hereby acknowledged, each Guarantor hereby makes the following representations
and warranties to the Secured Creditors and hereby covenants and agrees with
each Secured Creditor as follows:
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1. Each Guarantor, jointly and severally, irrevocably,
absolutely and unconditionally guarantees: (i) to the Lender Creditors the full
and prompt payment when due (whether at the stated maturity, by acceleration or
otherwise) of (x) the principal of, premium, if any, and interest on the Notes
issued by, and the Loans made to, the Borrower under the Credit Agreement and
(y) all other obligations (including obligations which, but for the automatic
stay under Section 362(a) of the Bankruptcy Code, would become due), liabilities
and indebtedness owing by the Borrower to the Lender Creditors under the Credit
Agreement and each other Credit Document to which the Borrower is a party
(including, without limitation, indemnities, Fees and interest thereon
(including any interest accruing after the commencement of any bankruptcy,
insolvency, receivership or similar proceeding at the rate provided for in the
Credit Agreement, whether or not such interest is an allowed claim in any such
proceeding), whether now existing or hereafter incurred under, arising out of or
in connection with the Credit Agreement and any such other Credit Document and
the due performance and compliance by the Borrower with all of the terms,
conditions and agreements contained in all such Credit Documents (all such
principal, premium, interest, liabilities, indebtedness and obligations being
herein collectively called the "Credit Document Obligations"); and (ii) to each
Other Creditor the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due), liabilities and indebtedness (including any
interest accruing after the commencement of any bankruptcy, insolvency,
receivership or similar proceeding at the rate provided for in the respective
Interest Rate Protection Agreements or Other Hedging Agreements, whether or not
such interest is an allowed claim in any such proceeding) owing by the Borrower
and/or one or more of its Subsidiaries under any Interest Rate Protection
Agreement or Other Hedging Agreement, whether now in existence or hereafter
arising, and the due performance and compliance by the Borrower and such
Subsidiaries with all of the terms, conditions and agreements contained in each
Interest Rate Protection Agreement and Other Hedging Agreement to which it is a
party (all such obligations, liabilities and indebtedness being herein
collectively called the "Other Obligations" and, together with the Credit
Document Obligations, the "Guaranteed Obligations"). As used herein, the term
"Guaranteed Party" shall mean the Borrower and each Subsidiary thereof party to
any Interest Rate Protection Agreement or Other Hedging Agreement with an Other
Creditor. Each Guarantor understands, agrees and confirms that the Secured
Creditors may enforce this Guaranty up to the full amount of the Guaranteed
Obligations against such Guarantor without proceeding against any other
Guarantor, the Borrower, any other Guaranteed Party, against any security for
the Guaranteed Obligations, or under any other guaranty covering all or a
portion of the Guaranteed Obligations.
2. Additionally, each Guarantor, jointly and severally,
unconditionally, absolutely and irrevocably, guarantees the payment of any and
all Guaranteed Obligations whether or not due or payable by the Borrower or any
other Guaranteed Party upon the occurrence in respect of the Borrower or any
such other Guaranteed Party of any of the events specified in Section 10.05 of
the Credit Agreement, and unconditionally and irrevocably, jointly and
severally, promises to pay such Guaranteed Obligations to the Secured Creditors,
or order, on demand. This Guaranty shall constitute a guaranty of payment, and
not of collection.
3. The liability of each Guarantor hereunder is primary,
absolute, joint and several, and unconditional and is exclusive and independent
of any security for or other guaranty
Exhibit F
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of the indebtedness of the Borrower or any other Guaranteed Party whether
executed by such Guarantor, any other Guarantor, any other guarantor or by
any other party, and the liability of each Guarantor hereunder shall not be
affected or impaired by any circumstance or occurrence whatsoever, including,
without limitation: (a) any direction as to application of payment by the
Borrower or any other Guaranteed Party or by any other party, (b) any other
continuing or other guaranty, undertaking or maximum liability of a guarantor
or of any other party as to the Guaranteed Obligations, (c) any payment on or
in reduction of any such other guaranty or undertaking, (d) any dissolution,
termination or increase, decrease or change in personnel by the Borrower or
any other Guaranteed Party, (e) to the extent permitted by applicable law,
any payment made to any Secured Creditor on the indebtedness which any
Secured Creditor repays the Borrower or any other Guaranteed Party pursuant
to court order in any bankruptcy, reorganization, arrangement, moratorium or
other debtor relief proceeding, and each Guarantor waives any right to the
deferral or modification of its obligations hereunder by reason of any such
proceeding, (f) any action or inaction by the Secured Creditors as
contemplated in Section 6 hereof or (g) any invalidity, irregularity or
unenforceability of all or any part of the Guaranteed Obligations or of any
security therefor.
4. The obligations of each Guarantor hereunder are independent
of the obligations of any other Guarantor, any other guarantor, the Borrower or
any other Guaranteed Party, and a separate action or actions may be brought and
prosecuted against each Guarantor whether or not action is brought against any
other Guarantor, any other guarantor, the Borrower or any other Guaranteed Party
and whether or not any other Guarantor, any other guarantor, the Borrower or any
other Guaranteed Party be joined in any such action or actions. Each Guarantor
waives, to the fullest extent permitted by law, the benefits of any statute of
limitations affecting its liability hereunder or the enforcement thereof. Any
payment by the Borrower or any other Guaranteed Party or other circumstance
which operates to toll any statute of limitations as to the Borrower or any
other Guaranteed Party shall operate to toll the statute of limitations as to
each Guarantor.
5. Any Secured Creditor may at any time and from time to time
without the consent of, or notice to, any Guarantor, without incurring
responsibility to such Guarantor, without impairing or releasing the obligations
of such Guarantor hereunder, upon or without any terms or conditions and in
whole or in part:
(a) change the manner, place or terms of payment of, and/or
change, increase or extend the time of payment of, renew or alter, any of the
Guaranteed Obligations (including any increase or decrease in the rate of
interest thereon or the principal amount thereof), any security therefor, or any
liability incurred directly or indirectly in respect thereof, and the guaranty
herein made shall apply to the Guaranteed Obligations as so changed, extended,
renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, impair, realize upon or
otherwise deal with in any manner and in any order any property by whomsoever at
any time pledged or mortgaged to secure, or howsoever securing, the Guaranteed
Obligations or any liabilities (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and/or any offset there
against;
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(c) exercise or refrain from exercising any rights against the
Borrower, any other Guaranteed Party, any other Credit Party, any Subsidiary
thereof or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers,
Guarantors, other guarantors, the Borrower, any other Guaranteed Party, or other
obligors;
(e) settle or compromise any of the Guaranteed Obligations,
any security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Borrower or any other Guaranteed Party to
creditors of the Borrower or such other Guaranteed Party other than the Secured
Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to
any liability or liabilities of the Borrower or any other Guaranteed Party to
the Secured Creditors regardless of what liabilities of the Borrower or such
other Guaranteed Party remain unpaid;
(g) consent to or waive any breach of, or any act, omission or
default under, any of the Interest Rate Protection Agreements or Other Hedging
Agreements, the Credit Documents or any of the instruments or agreements
referred to therein, or otherwise amend, modify or supplement (in accordance
with their terms) any of the Interest Rate Protection Agreements or Other
Hedging Agreements, the Credit Documents or any of such other instruments or
agreements;
(h) act or fail to act in any manner which may deprive such
Guarantor of its right to subrogation against the Borrower or any other
Guaranteed Party to recover full indemnity for any payments made pursuant to
this Guaranty; and/or
(i) take any other action which would, under otherwise
applicable principles of common law, give rise to a legal or equitable discharge
of such Guarantor from its liabilities under this Guaranty.
6. This Guaranty is a continuing one and all liabilities to
which it applies or may apply under the terms hereof shall be conclusively
presumed to have been created in reliance hereon. No failure or delay on the
part of any Secured Creditor in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder. The rights and remedies herein expressly specified are cumulative and
not exclusive of any rights or remedies which any Secured Creditor would
otherwise have hereunder. No notice to or demand on any Guarantor in any case
shall entitle such Guarantor to any other further notice or demand in similar or
other circumstances or constitute a waiver of the rights of any Secured Creditor
to any other or further action in any circumstances without notice or demand. It
is not necessary for any Secured Creditor to inquire into the capacity or powers
of the Borrower or any other Guaranteed Party or the officers, directors,
partners or agents acting or purporting to act on its or their behalf,
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and any indebtedness made or created in reliance upon the professed exercise
of such powers shall be guaranteed hereunder.
7. Any indebtedness of the Borrower or any other Guaranteed
Party now or hereafter held by any Guarantor is hereby subordinated to the
indebtedness of the Borrower or such other Guaranteed Party to the Secured
Creditors, and such indebtedness of the Borrower or such other Guaranteed Party
to any Guarantor, if the Administrative Agent or the Collateral Agent, after the
occurrence and during the continuance of an Event of Default, so requests, shall
be collected, enforced and received by such Guarantor as trustee for the Secured
Creditors and be paid over to the Secured Creditors on account of the
indebtedness of the Borrower or the other Guaranteed Parties to the Secured
Creditors, but without affecting or impairing in any manner the liability of
such Guarantor under the other provisions of this Guaranty. Without limiting the
generality of the foregoing, each Guarantor hereby agrees with the Secured
Creditors that it will not exercise any right of subrogation which it may at any
time otherwise have as a result of this Guaranty (whether contractual, under
Section 509 of the Bankruptcy Code or otherwise) until all Guaranteed
Obligations have been irrevocably paid in full in cash.
8. (a) Each Guarantor waives any right (except as shall be
required by applicable law and cannot be waived) to require the Secured
Creditors to: (i) proceed against the Borrower, any other Guaranteed Party, any
other Guarantor, any other guarantor of the Guaranteed Obligations or any other
party; (ii) proceed against or exhaust any security held from the Borrower, any
other Guaranteed Party, any other Guarantor, any other guarantor of the
Guaranteed Obligations or any other party; or (iii) pursue any other remedy in
the Secured Creditors' power whatsoever. Each Guarantor waives any defense based
on or arising out of any defense of the Borrower, any other Guaranteed Party,
any other Guarantor, any other guarantor of the Guaranteed Obligations or any
other party other than payment in full of the Guaranteed Obligations, including,
without limitation, any defense based on or arising out of the disability of the
Borrower, any other Guaranteed Party, any other Guarantor, any other guarantor
of the Guaranteed Obligations or any other party, or the unenforceability of the
Guaranteed Obligations or any part thereof from any cause, or the cessation from
any cause of the liability of the Borrower or any other Guaranteed Party other
than payment in full of the Guaranteed Obligations. The Secured Creditors may,
at their election, foreclose on any security held by the Administrative Agent,
the Collateral Agent or the other Secured Creditors by one or more judicial or
nonjudicial sales, whether or not every aspect of any such sale is commercially
reasonable, or exercise any other right or remedy the Secured Creditors may have
against the Borrower, any other Guaranteed Party or any other party, or any
security, without affecting or impairing in any way the liability of any
Guarantor hereunder except to the extent the Guaranteed Obligations have been
paid in full in cash. Each Guarantor waives any defense arising out of any such
election by the Secured Creditors, even though such election operates to impair
or extinguish any right of reimbursement or subrogation or other right or remedy
of such Guarantor against the Borrower, any other Guaranteed Party or any other
party or any security.
(b) Each Guarantor waives all presentments, promptness,
diligence, demands for performance, protests and notices, including, without
limitation, notices of nonperformance, notices of protest, notices of dishonor,
notices of acceptance of this Guaranty, and notices of the existence, creation
or incurring of new or additional indebtedness. Each Guarantor assumes all
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responsibility for being and keeping itself informed of the Borrower's and each
other Guaranteed Party's financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations
and the nature, scope and extent of the risks which such Guarantor assumes and
incurs hereunder, and agrees that the Secured Creditors shall have no duty to
advise any Guarantor of information known to them regarding such circumstances
or risks.
Each Guarantor warrants and agrees that each of the waivers
set forth above in this Section 9 is made with full knowledge of its
significance and consequences and that if any of such waivers are determined to
be contrary to any applicable law or public policy, such waivers shall be
effective only to the maximum extent permitted by law.
9. The Secured Creditors agree that this Guaranty may be
enforced only by the action of the Administrative Agent or the Collateral Agent,
in each case acting upon the instructions of the Required Lenders (or, after the
date on which all Credit Document Obligations have been paid in full, the
holders of at least a majority of the outstanding Other Obligations) and that no
other Secured Creditors shall have any right individually to seek to enforce or
to enforce this Guaranty, it being understood and agreed that such rights and
remedies may be exercised by the Administrative Agent or the Collateral Agent
or, after all the Credit Document Obligations have been paid in full, by the
holders of at least a majority of the outstanding Other Obligations, as the case
may be, for the benefit of the Secured Creditors upon the terms of this
Guaranty. The Secured Creditors further agree that this Guaranty may not be
enforced against any director, officer, employee, partner, member or stockholder
of any Guarantor (except to the extent such partner, member or stockholder is
also a Guarantor hereunder).
10. In order to induce the Lenders to make Loans to the
Borrower pursuant to the Credit Agreement, and in order to induce the Other
Creditors to execute, deliver and perform the Interest Rate Protection
Agreements and Other Hedging Agreements, each Guarantor represents, warrants and
covenants that:
(a) Such Guarantor (i) is a duly organized and validly
existing corporation, limited partnership or limited liability company, as the
case may be, in good standing under the laws of the jurisdiction of its
incorporation or formation, (ii) has the corporate or other applicable power and
authority, as the case may be, to own its property and assets and to transact
the business in which it is currently engaged and presently proposes to engage
and (iii) is duly qualified and is authorized to do business and is in good
standing in each jurisdiction where the conduct of its business as currently
conducted requires such qualification, except for failures to be so qualified
which, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
(b) Such Guarantor has the corporate or other applicable power
and authority to execute, deliver and perform the terms and provisions of this
Guaranty and each other Credit Document to which it is a party and has taken all
necessary corporate or other applicable action to authorize the execution,
delivery and performance by it of this Guaranty and each such other Credit
Document. Such Guarantor has duly executed and delivered this Guaranty and each
other Credit Document to which it is a party, and this Guaranty and each such
other Credit Document
Exhibit F
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constitutes the legal, valid and binding obligation of such Guarantor
enforceable against such Guarantor in accordance with its terms, except to
the extent that the enforceability hereof or thereof may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws generally affecting creditors' rights and by
equitable principles (regardless of whether enforcement is sought in equity
or at law).
(c) Neither the execution, delivery or performance by such
Guarantor of this Guaranty or any other Credit Document to which it is a party,
nor compliance by it with the terms and provisions hereof and thereof, will (i)
contravene any provision of any applicable law, statute, rule or regulation or
any applicable order, writ, injunction or decree of any court or governmental
instrumentality, (ii) conflict with or result in any breach of any of the terms,
covenants, conditions or provisions of, or constitute a default under, or result
in the creation or imposition of (or the obligation to create or impose) any
Lien (except pursuant to the Security Documents) upon any of the material
properties or assets of such Guarantor or any of its Subsidiaries pursuant to
the terms of any indenture, mortgage, deed of trust, loan agreement or credit
agreement, or any other material agreement, contract or instrument, to which
such Guarantor or any of its Subsidiaries is a party or by which it or any of
its material property or assets is bound or to which it may be subject or (iii)
violate any provision of the Certificate of Incorporation or By-Laws (or
equivalent organizational documents) of such Guarantor or any of its
Subsidiaries.
(d) No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with (except as have been
obtained or made or, in the case of any filings or recordings of the Security
Documents (other than the Vessel Mortgages) executed on or before the Initial
Borrowing Date, will be made within 10 days of the Initial Borrowing Date), or
exemption by, any governmental or public body or authority, or any subdivision
thereof, is required to authorize, or is required in connection with, (i) the
execution, delivery and performance of this Guaranty by such Guarantor or any
other Credit Document to which such Guarantor is a party or (ii) the legality,
validity, binding effect or enforceability of this Guaranty or any other Credit
Document to which such Guarantor is a party.
(e) There are no actions, suits or proceedings pending or, to
such Guarantor's knowledge, threatened (i) with respect to this Guaranty or any
other Credit Document to which such Guarantor is a party or (ii) with respect to
such Guarantor or any of its Subsidiaries that, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
11. Each Guarantor covenants and agrees that on and after the
Effective Date and until the termination of the Total Commitment and all
Interest Rate Protection Agreements and Other Hedging Agreements and until such
time as no Note remains outstanding and all Guaranteed Obligations have been
paid in full, such Guarantor will comply, and will cause each of its
Subsidiaries to comply, with all of the applicable provisions, covenants and
agreements contained in Sections 8 and 9 of the Credit Agreement, and will take,
or will refrain from taking, as the case may be, all actions that are necessary
to be taken or not taken so that it is not in violation of any provision,
covenant or agreement contained in Section 8 or 9 of the Credit
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Agreement, and so that no Default or Event of Default is caused by the
actions of such Guarantor or any of its Subsidiaries.
12. The Guarantors hereby jointly and severally agree to pay
all reasonable out-of-pocket costs and expenses of (i) each Secured Creditor in
connection with the enforcement of this Guaranty (including, without limitation,
the reasonable fees and disbursements of counsel employed by each Secured
Creditor) and (ii) the Administrative Agent in connection with any amendment,
waiver or consent relating hereto (including, without limitation, the reasonable
fees and disbursements of counsel employed by the Administrative Agent).
13. This Guaranty shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of the Secured Creditors
and their successors and assigns.
14. Neither this Guaranty nor any provision hereof may be
changed, waived, discharged or terminated except with the written consent of
each Guarantor directly affected thereby and with the written consent of either
(x) the Required Lenders (or, to the extent required by Section 13.12 of the
Credit Agreement, with the written consent of each Lender) at all times prior to
the time on which all Credit Document Obligations have been paid in full or (y)
the holders of at least a majority of the outstanding Other Obligations at all
times after the time on which all Credit Document Obligations have been paid in
full; PROVIDED, that any change, waiver, modification or variance affecting the
rights and benefits of a single Class (as defined below) of Secured Creditors
(and not all Secured Creditors in a like or similar manner) shall also require
the written consent of the Requisite Creditors (as defined below) of such Class
of Secured Creditors (it being understood that the addition or release of any
Guarantor hereunder shall not constitute a change, waiver, discharge or
termination affecting any Guarantor other than the Guarantor so added or
released). For the purpose of this Guaranty, the term "Class" shall mean each
class of Secured Creditors, I.E., whether (x) the Lender Creditors as holders of
the Credit Document Obligations or (y) the Other Creditors as the holders of the
Other Obligations. For the purpose of this Guaranty, the term "Requisite
Creditors" of any Class shall mean (x) with respect to the Credit Document
Obligations, the Required Lenders (or, to the extent required by Section 13.12
of the Credit Agreement, each Lender) and (y) with respect to the Other
Obligations, the holders of at least a majority of all obligations outstanding
from time to time under the Interest Rate Protection Agreements and Other
Hedging Agreements.
15. Each Guarantor acknowledges that an executed (or
conformed) copy of each of the Credit Documents and Interest Rate Protection
Agreements or Other Hedging Agreements has been made available to a senior
officer of such Guarantor and such officer is familiar with the contents
thereof.
16. In addition to any rights now or hereafter granted under
applicable law (including, without limitation, Section 151 of the New York
Debtor and Secured Creditor Law) and not by way of limitation of any such
rights, upon the occurrence and during the continuance of an Event of Default
(such term to mean and include any "Event of Default" as defined in the Credit
Agreement and any payment default under any Interest Rate Protection Agreement
or Other Hedging Agreement continuing after any applicable grace period), each
Secured Creditor is hereby authorized, at any time or from time to time, without
notice to any Guarantor or to any
Exhibit F
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other Person, any such notice being expressly waived, to set off and to
appropriate and apply any and all deposits (general or special) and any other
indebtedness at any time held or owing by such Secured Creditor to or for the
credit or the account of such Guarantor, against and on account of the
obligations and liabilities of such Guarantor to such Secured Creditor under
this Guaranty, irrespective of whether or not such Secured Creditor shall
have made any demand hereunder and although said obligations, liabilities,
deposits or claims, or any of them, shall be contingent or unmatured.
17. Except as otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing (including
telexed, telegraphic or telecopier communication) and mailed, telexed,
telecopied or delivered: if to any Guarantor, at
____________________________________, with copies to ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention __________,
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇, Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇; if to any Secured
Creditor, at its address specified opposite its name on Schedule II to the
Credit Agreement; and if to the Administrative Agent, at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇, Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇, Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇; or, as to any other Credit
Party, at such other address as shall be designated by such party in a written
notice to the other parties hereto and, as to each Secured Creditor, at such
other address as shall be designated by such Secured Creditor in a written
notice to the Borrower and the Administrative Agent. All such notices and
communications shall, (i) when mailed, be effective three Business Days after
being deposited in the mails, prepaid and properly addressed for delivery, (ii)
when sent by overnight courier, be effective one Business Day after delivery to
the overnight courier prepaid and properly addressed for delivery on such next
Business Day, or (iii) when sent by telex or telecopier, be effective when sent
by telex or telecopier, except that notices and communications to the
Administrative Agent or any Guarantor shall not be effective until received by
the Administrative Agent or such Guarantor, as the case may be.
18. If claim is ever made upon any Secured Creditor for
repayment or recovery of any amount or amounts received in payment or on account
of any of the Guaranteed Obligations and any of the aforesaid payees repays all
or part of said amount by reason of (i) any judgment, decree or order of any
court or administrative body having jurisdiction over such payee or any of its
property or (ii) any settlement or compromise of any such claim effected by such
payee with any such claimant (including the Borrower or any other Guaranteed
Party) then and in such event each Guarantor agrees that any such judgment,
decree, order, settlement or compromise shall be binding upon such Guarantor,
notwithstanding any revocation hereof or other instrument evidencing any
liability of the Borrower or any other Guaranteed Party, and such Guarantor
shall be and remain liable to the aforesaid payees hereunder for the amount so
repaid or recovered to the same extent as if such amount had never originally
been received by any such payee.
19. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS
OTHERWISE PROVIDED IN CERTAIN OF THE VESSEL MORTGAGES, BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK WITHOUT
REGARD TO ITS CONFLICT OF LAWS RULES (OTHER THAN TITLE 14 OF ARTICLE 5 OF THE
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GENERAL OBLIGATIONS LAW). Any legal action or proceeding with respect to this
Guaranty or any other Credit Document to which any Guarantor is a party may be
brought in the courts of the State of New York or of the United States of
America for the Southern District of New York in each case which are located in
the City of New York, and, by execution and delivery of this Guaranty, each
Guarantor hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts. Each
Guarantor hereby further irrevocably waives (to the fullest extent permitted by
applicable law) any claim that any such court lacks personal jurisdiction over
such Guarantor, and agrees not to plead or claim in any legal action or
proceeding with respect to this Guaranty or any other Credit Document to which
such Guarantor is a party brought in any of the aforesaid courts that any such
court lacks personal jurisdiction over such Guarantor. Each Guarantor further
irrevocably consents to the service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to such Guarantor at its address
set forth in Section 18 hereof, such service to become effective 30 days after
such mailing. Each Guarantor hereby irrevocably waives (to the fullest extent
permitted by applicable law) any objection to such service of process and
further irrevocably waives and agrees not to plead or claim in any action or
proceeding commenced hereunder or under any other Credit Document to which such
Guarantor is a party that such service of process was in any way invalid or
ineffective. Nothing herein shall affect the right of any of the Secured
Creditors to serve process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against each Guarantor in any other
jurisdiction.
(b) Each Guarantor hereby irrevocably waives (to the fullest
extent permitted by applicable law) any objection which it may now or hereafter
have to the laying of venue of any of the aforesaid actions or proceedings
arising out of or in connection with this Guaranty or any other Credit Document
to which such Guarantor is a party brought in the courts referred to in clause
(a) above and hereby further irrevocably waives (to the fullest extent permitted
by applicable law) and agrees not to plead or claim in any such court that such
action or proceeding brought in any such court has been brought in an
inconvenient forum.
(c) EACH GUARANTOR AND EACH SECURED CREDITOR (BY ITS
ACCEPTANCE OF THE BENEFITS OF THIS GUARANTY) HEREBY IRREVOCABLY WAIVES ALL
RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS GUARANTY, THE OTHER CREDIT DOCUMENTS TO WHICH SUCH
GUARANTOR IS A PARTY OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
20. In the event that all of the capital stock or other equity
interests of one or more Guarantors is sold or otherwise disposed of or
liquidated in compliance with the requirements of Section 9.02 of the Credit
Agreement (or such sale or other disposition has been approved in writing by the
Required Lenders (or all the Lenders if required by Section 13.12 of the Credit
Agreement)) and the proceeds of such sale, disposition or liquidation are
applied in accordance with the provisions of the Credit Agreement, to the extent
applicable, such Guarantor shall upon consummation of such sale or other
disposition (except to the extent that such sale or disposition is to the
Borrower or another Subsidiary thereof) be released from this Guaranty
automatically and without further action and this Guaranty shall, as to each
such Guarantor or
Exhibit F
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Guarantors, terminate, and have no further force or effect (it being
understood and agreed that the sale of one or more Persons that own, directly
or indirectly, all of the capital stock or other equity interests of any
Guarantor shall be deemed to be a sale of such Guarantor for the purposes of
this Section 21).
21. At any time a payment in respect of the Guaranteed
Obligations is made under this Guaranty, the right of contribution of each
Guarantor against each other Guarantor shall be determined as provided in the
immediately following sentence, with the right of contribution of each Guarantor
to be revised and restated as of each date on which a payment (a "Relevant
Payment") is made on the Guaranteed Obligations under this Guaranty. At any time
that a Relevant Payment is made by a Guarantor that results in the aggregate
payments made by such Guarantor in respect of the Guaranteed Obligations to and
including the date of the Relevant Payment exceeding such Guarantor's
Contribution Percentage (as defined below) of the aggregate payments made by all
Guarantors in respect of the Guaranteed Obligations to and including the date of
the Relevant Payment (such excess, the "Aggregate Excess Amount"), each such
Guarantor shall have a right of contribution against each other Guarantor who
has made payments in respect of the Guaranteed Obligations to and including the
date of the Relevant Payment in an aggregate amount less than such other
Guarantor's Contribution Percentage of the aggregate payments made to and
including the date of the Relevant Payment by all Guarantors in respect of the
Guaranteed Obligations (the aggregate amount of such deficit, the "Aggregate
Deficit Amount") in an amount equal to (x) a fraction the numerator of which is
the Aggregate Excess Amount of such Guarantor and the denominator of which is
the Aggregate Excess Amount of all Guarantors multiplied by (y) the Aggregate
Deficit Amount of such other Guarantor. A Guarantor's right of contribution
pursuant to the preceding sentences shall arise at the time of each computation,
subject to adjustment to the time of each computation; PROVIDED that no
Guarantor may take any action to enforce such right until the Guaranteed
Obligations have been paid in full in cash, it being expressly recognized and
agreed by all parties hereto that any Guarantor's right of contribution arising
pursuant to this Section 22 against any other Guarantor shall be expressly
junior and subordinate to such other Guarantor's obligations and liabilities in
respect of the Guaranteed Obligations and any other obligations owing under this
Guaranty. As used in this Section 22: (i) each Guarantor's "Contribution
Percentage" shall mean the percentage obtained by dividing (x) the Adjusted Net
Worth (as defined below) of such Guarantor by (y) the aggregate Adjusted Net
Worth of all Guarantors; (ii) the "Adjusted Net Worth" of each Guarantor shall
mean the greater of (x) the Net Worth (as defined below) of such Guarantor and
(y) zero; and (iii) the "Net Worth" of each Guarantor shall mean the amount by
which the fair saleable value of such Guarantor's assets on the date of any
Relevant Payment exceeds its existing debts and other liabilities (including
contingent liabilities, but without giving effect to any Guaranteed Obligations
arising under this Guaranty or any guaranteed obligations arising under any
guaranty of the Senior Subordinated Notes) on such date. All parties hereto
recognize and agree that, except for any right of contribution arising pursuant
to this Section 22, each Guarantor who makes any payment in respect of the
Guaranteed Obligations shall have no right of contribution or subrogation
against any other Guarantor in respect of such payment until all of the
Guaranteed Obligations have been irrevocably paid in full in cash. Each of the
Guarantors recognizes and acknowledges that the rights to contribution arising
hereunder shall constitute an asset in favor of the party entitled to such
contribution. In this connection, each
Exhibit F
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Guarantor has the right to waive its contribution right against any Guarantor
to the extent that after giving effect to such waiver such Guarantor would
remain solvent, in the determination of the Required Lenders.
22. Each Guarantor and each Secured Creditor (by its
acceptance of the benefits of this Guaranty) hereby confirms that it is its
intention that this Guaranty not constitute a fraudulent transfer or conveyance
for purposes of the Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar Federal or state law. To
effectuate the foregoing intention, each Guarantor and each Secured Creditor (by
its acceptance of the benefits of this Guaranty) hereby irrevocably agrees that
the Guaranteed Obligations guaranteed by such Guarantor shall be limited to such
amount as will, after giving effect to such maximum amount and all other
(contingent or otherwise) liabilities of such Guarantor that are relevant under
such laws and after giving effect to any rights to contribution pursuant to any
agreement providing for an equitable contribution among such Guarantor and the
other Guarantors, result in the Guaranteed Obligations of such Guarantor in
respect of such maximum amount not constituting a fraudulent transfer or
conveyance.
23. This Guaranty may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original (including if
delivered by facsimile transmission), but all of which shall together constitute
one and the same instrument. A set of counterparts executed by all the parties
hereto shall be lodged with the Guarantors and the Administrative Agent.
24. (a) All payments made by any Guarantor hereunder will be
made without setoff, counterclaim or other defense, will be made in the currency
or currencies in which the respective Guaranteed Obligations are then due and
payable and will be made on the same basis as payments are made by the Borrower
under Sections 4.03 and 4.04 of the Credit Agreement.
(b) The Guarantors' obligations hereunder to make payments in
the respective currency or currencies in which the respective Guaranteed
Obligations are required to be paid (such currency being herein called the
"Obligation Currency") shall not be discharged or satisfied by any tender or
recovery pursuant to any judgment expressed in or converted into any currency
other than the Obligation Currency, except to the extent that such tender or
recovery results in the effective receipt by the Administrative Agent, the
Collateral Agent or the respective other Secured Creditor of the full amount of
the Obligation Currency expressed to be payable to the Administrative Agent, the
Collateral Agent or such other Secured Creditor under this Guaranty or the other
Credit Documents or any Interest Rate Protection Agreement or Other Hedging
Agreement, as applicable. If for the purpose of obtaining or enforcing judgment
against any Guarantor in any court or in any jurisdiction, it becomes necessary
to convert into or form any currency other than the Obligation Currency (such
other currency being hereinafter referred to as the "Judgment Currency") an
amount due in the Obligation Currency, the conversion shall be made, at the
Relevant Currency Equivalent thereof or, in the case of conversion into other
currencies, at the rate of exchange (quoted by the Administrative Agent,
determined, in each case, as of the date immediately preceding the day on which
the judgment is given (such Business Day being hereinafter referred to as the
"Judgment Currency Conversion Date").
Exhibit F
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(c) If there is a change in the rate of exchange prevailing
between the Judgment Currency Conversion Date and the date of actual payment of
the amount due, the Guarantors jointly and severally covenant and agree to pay,
or cause to be paid, such additional amounts, if any (but in any event not a
lesser amount), as may be necessary to ensure that the amount paid in the
Judgment Currency, when converted at the rate of exchange prevailing on the date
of payment, will produce the amount of the Obligation Currency which could have
been purchased with the amount of Judgment Currency stipulated in the judgment
or judicial award at the rate or exchange prevailing on the Judgment Currency
Conversion Date.
(d) For purposes of determining the Relevant Currency
Equivalent or any other rate of exchange for this Section 25, such amounts shall
include any premium and costs payable in connection with the purchase of the
Obligation Currency.
25. It is understood and agreed that any Subsidiary of the
Borrower that is required to execute a counterpart of this Guaranty after the
date hereof pursuant to the Credit Agreement shall automatically become a
Guarantor hereunder by executing a counterpart hereof and/or a Subsidiary
assumption agreement, in each case in form and substance satisfactory to the
Administrative Agent, and delivering the same to the Administrative Agent.
* * *
Exhibit F
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IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed and delivered as of the date first above written.
[INSERT SUBSIDIARY GUARANTORS],
as a Guarantor
By:_______________________________
Name:
Title:
Accepted and Agreed to:
CHRISTIANIA BANK OG
KREDITKASSE ASA, NEW YORK BRANCH,
as Administrative Agent
By:_______________________________________
Name:
Title:
By:_______________________________________
Name:
Title: