Exhibit 4.3
GUARANTEE
THIS GUARANTEE (the “
Guarantee ”) is dated as of December 18, 2003, among
RAYONIER TRS HOLDINGS INC., a Delaware corporation (“
TRS ”), RAYONIER WOOD PRODUCTS, LLC, a Delaware
limited liability company (“ Wood Products LLC
”), RAYONIER WOOD PROCUREMENT, LLC, a Delaware limited
liability company (“ Procurement LLC ”),
RAYONIER INTERNATIONAL WOOD PRODUCTS, LLC, a Delaware limited
liability company (“ Wood LLC ”), RAYONIER
FOREST OPERATIONS, LLC, a Delaware limited liability company
(“ Forest Operations LLC ”), RAYONIER
PROPERTIES, LLC, a Delaware limited liability company (“
Properties LLC ”), and RAYONIER PERFORMANCE FIBERS,
LLC, a Delaware limited liability company (“ Fibers
LLC ”) (TRS, Wood Products LLC, Procurement LLC, Wood
LLC, Forest Operations LLC, Properties LLC and Fibers LLC
individually, a “ Guarantor ” and collectively,
the “ Guarantors ”).
This Guarantee is solely for the
benefit of the Holders (as defined below) of the $10,680,000 ($7.86
million outstanding) principal amount of Nassau County Tax Exempt
Pollution Control Refunding Revenue Bonds, Series 1993, serial
bonds with an average rate of approximately 6.20%, of Rayonier Inc.
due July 1, 2015 (the “ Revenue Bonds ”).
“ Holder ” means the person or persons in whose
name or names a bond shall be registered on the books of Nassau
County (the “ Issuer ”) kept by Barnett Banks
Trust Company, N.A. (the “ Trustee ”) for that
purpose in accordance with the provisions of the trust indenture
dated June 1, 1993 between the Trustee and the Issuer (the “
Trust Indenture ”). Such Holders are hereinafter
referred to as the “ Guaranteed Parties
”.
Reference is made to the
Contribution, Conveyance and Assumption Agreement, dated as of
December 18, 2003 (the “ Contribution Agreement
”), among Rayonier Inc., a North Carolina corporation
(“ Rayonier ”), Rayonier Timberlands Operating
Company, L.P., Rayonier Timberlands, L.P., Rayonier Timberlands
Management, Inc., Rayonier Forest Resources Company, Rayland, LLC,
Rayonier Minerals LLC, Rayonier Forest Properties, LLC and the
Guarantors, pursuant to which, among other things, TRS assumed all
of the indebtedness and obligations of Rayonier associated with the
Revenue Bonds as described on Schedule 3.1(a) to the Contribution
Agreement. Capitalized terms used and not defined herein have the
meanings assigned to them in the Contribution Agreement.
As part of its restructuring to
qualify as a Real Estate Investment Trust (a “ REIT
”) effective January 1, 2004 (the “ Effective
Date ”), Rayonier has agreed to contribute certain
assets, as described more fully in the Contribution Agreement and
the related schedules attached thereto (the “ Contributed
Assets ”), to each of the Guarantors and the Guarantors
have agreed to accept the Contributed Assets pursuant to, and upon
the terms and subject to the conditions specified in, the
Contribution Agreement. The Guarantors acknowledge that they will
derive substantial benefit from the Contributed Assets and the
restructuring of Rayonier to qualify as a REIT on the Effective
Date. The obligations of Rayonier to restructure as a REIT and
contribute the Contributed Assets to the Guarantors are conditioned
on, among other things, the execution and delivery by the
Guarantors of a Guarantee in the form hereof. As consideration
therefor, and in
order to induce Rayonier to contribute the
Contributed Assets to the Guarantors and to restructure to qualify
as a REIT, the Guarantors are willing to execute this
Guarantee.
Accordingly, the parties hereto
agree as follows:
SECTION 1. Guarantees . Each
Guarantor, jointly and severally, unconditionally guarantees to
each Guaranteed Party the due and punctual payment by Rayonier (or
TRS on Rayonier’s behalf pursuant to the Contribution
Agreement) of (a) the principal of and premium, if any, and
interest (including interest accruing during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding) on
the Revenue Bonds, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or
otherwise, and (b) all other monetary obligations, including fees,
costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding), of Rayonier to
the Guaranteed Parties under any trust indenture, loan agreement or
other related operative documents governing the Revenue Bonds
(together, the “ Bond Documents ”), whether such
amounts shall have accrued prior to, on or after the date of this
Guarantee (all the monetary obligations referred to in the
preceding clauses (a) and (b) being collectively called the “
Rayonier Obligations ”).
Anything contained in this Guarantee
to the contrary notwithstanding, the obligations of each Guarantor
hereunder shall be limited to a maximum aggregate amount equal to
the greatest amount that would not render such obligations subject
to avoidance as a fraudulent transfer or conveyance under Section
548 of Title 11 of the United States Code or any provisions of
applicable law (collectively, the “ Fraudulent Transfer
Laws ”), in each case after giving effect to all other
liabilities of such Guarantor, contingent or otherwise, that are
relevant under the Fraudulent Transfer Laws and after giving effect
as assets to the value (as determined under the applicable
provisions of the Fraudulent Transfer Laws) of any rights to
subrogation, contribution, reimbursement, indemnity or similar
rights of such Guarantor pursuant to (i) applicable law or (ii) any
agreement providing for an equitable allocation among such
Guarantor and other Affiliates of Rayonier of obligations arising
under Guarantees by such parties.
Each Guarantor further agrees that
the Rayonier Obligations may be extended or renewed, in whole or in
part, without notice to or further assent from it, and that it will
remain bound upon its guarantee notwithstanding any extension or
renewal of any Rayonier Obligation.
SECTION 2. Obligations Not
Waived . To the fullest extent permitted by applicable law,
each Guarantor waives presentment to, demand of payment from and
protest to Rayonier and any other guarantor of any of the Rayonier
Obligations, and also waives notice of acceptance of its guarantee
and notice of protest for nonpayment. To the fullest extent
permitted by applicable law, the obligations of each Guarantor
hereunder shall not be affected by (a) the failure of any
Guaranteed Party to assert any claim or demand or to enforce or
exercise any right or remedy against Rayonier or any other
guarantor under the provisions of the Revenue Bonds or otherwise,
or (b) any rescission, waiver, amendment or modification of, or any
release from any of the
2
terms or provisions of this Guarantee, the Bond
Documents, any other guarantee or any other agreement.
SECTION 3. Guarantee of
Payment . Each Guarantor further agrees that its guarantee
constitutes a guarantee of payment when due and not of collection,
and waives any right to require that any resort be had by any
Guaranteed Party to any balance of any deposit or other account or
credit on the books of any Guaranteed Party in favor of Rayonier or
any other person.
SECTION 4. No Discharge or
Diminishment of Guarantee . The obligations of each Guarantor
hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the
indefeasible payment in full in cash of the Rayonier Obligations),
including any claim of waiver, release, surrender, alteration or
compromise of any of the Rayonier Obligations, and shall not be
subject to any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Rayonier Obligations or otherwise. Without
limiting the generality of the foregoing, the obligations of each
Guarantor hereunder shall not be discharged or impaired or
otherwise affected by the failure of any Guaranteed Party to assert
any claim or demand or to enforce any remedy under the Bond
Documents or any other agreement, by any waiver or modification of
any provision of any thereof, by any default, failure or delay,
willful or otherwise, in the performance of the Rayonier
Obligations, or by any other act or omission that may or might in
any manner or to any extent vary the risk of any Guarantor or that
would otherwise operate as a discharge of each Guarantor as a
matter of law or equity (other than the indefeasible payment in
full in cash of all the Rayonier Obligations).
SECTION 5. Defenses of Rayonier
Waived . To the fullest extent permitted by applicable law,
each o
