GUARANTY
GUARANTY,
dated as of July 20, 2007 (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 25 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,
Genco Shipping & Trading Limited (the
“Borrower”), the lenders from time to time party
thereto (the “Lenders”), DnB Nor Bank ASA, New
York Branch, as Administrative Agent and as Collateral Agent
(in such capacity, together with any successor Administrative
Agent, the “Administrative Agent”), have entered
into a Credit Agreement, dated as of July 20, 2007 (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,
or guaranty the obligations of one or more other Guarantors or
any of their respective Subsidiaries under, one or more
Interest Rate Protection Agreements or Other Hedging
Agreements with respect to the Borrower’s obligations
under the Credit Agreement with respect to the outstanding
Loans and/or Commitment from time to time 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 Lender’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 Loan in respect of the
Capesize Vessels and other 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 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;
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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:
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
(in the capacities referred to in the definition of 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 under any
Interest Rate Protection Agreement or Other Hedging Agreement
entered into in respect of the Borrower’s obligations
with respect to the outstanding Loans and/or Commitments from
time to time, whether now in existence or hereafter arising,
and the due performance and compliance by the Borrower with
all of the terms, conditions and agreements contained in each
such 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 party
to or as guarantor of any Guarantor or its Subsidiaries 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 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, change in corporate structure,
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, including,
without limitation, any such invalidity, irregularity or
unenforceability caused by a change in law.
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;
(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, 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
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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 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 8 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.
(a) 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 Lenders (or, after the
date on which all Credit Document Obligations have been paid
in full, the holders of at least a majo
