Parent Guarantee by SEACOR Marine Holdings Inc. in favour of China Shipping Fan Tai Limited and China Shipping Industry (Hong Kong) Co., Limited, dated May 31, 2020
Form of Parent Guarantee
Dated 31 May 2020
SEACOR MARINE HOLDINGS INC (the Guarantor)
In favour of:
CHINA SHIPPING FAN TAI LIMITED (the 1st Beneficiary)
CHINA SHIPPING INDUSTRY (HONG KONG) CO., LIMITED (the 2nd Beneficiary).
The 1st Beneficiary and the 2nd Beneficiary are together referred to as the Beneficiaries hereinunder.
The Beneficiaries and SEACOR OFFSHORE ASIA LLC (the Purchaser) entered into sale and purchase agreement dated 31 May 2020 (the SPA).
This Guarantee is being issued in connection with certain of the obligations of the Purchaser under the SPA.
This Deed witnesses as follows:
1 Definitions and Interpretation
In this Guarantee:
Agreed Port means the closest major port in the Peoples Republic of China to the place where the Relevant Vessel is trading.
Guarantee Liability Amount means:
If the Vessel Return Condition is satisfied, the full outstanding balance of the Guaranteed Obligations as of the Trigger Event Date, plus any Enforcement Costs and Expenses arising after such date, after taking into account all amounts received by the Beneficiaries from any sale or other disposition of the Relevant Vessel in accordance with clause 2.6 or otherwise received from the Purchaser; or
If the Vessel Return Condition is not satisfied, the full outstanding balance of the Guaranteed Obligations as of the Trigger Event Date, plus any Enforcement Costs and Expenses arising after such date.
Guaranteed Obligations means all obligations and liabilities of the Purchaser to the Beneficiaries in respect of the amount payable by the Purchaser in respect of the unpaid Instalments and interest pursuant to the SPA plus Enforcement Costs and Expenses.
Instalments means all of the instalments of the Transfer Price as provided in Clause 3 and Clause 10 of the SPA.
Enforcement Costs and Expenses means all out-of-pocket and documented fees, charges, expenses, and outgoings of whatever nature (including, but not limited to, tax, registration fees and legal costs) reasonably incurred and paid by the Beneficiaries in connection with the enforcement or exercise of the mortgage or sale or other disposition of the Relevant Vessels.
Trigger Event Date means, upon the Beneficiaries rights under Clause 10.4 and/or Clause 10.5 of the SPA becoming enforceable, the date that is ninety days after the Beneficiaries service of the written notice to request the immediate return of the Relevant Vessel to the Beneficiaries at an Agreed Port.
Vessel Return Condition means the return of the Relevant Vessel to Beneficiaries at an Agreed Port by the Trigger Event Date.
Words and expressions defined in the SPA have the same meaning in this Guarantee.
Each reference to:
the plural number includes the singular and vice versa;
persons include corporations, partnerships, associations of persons (whether incorporated or not) or governmental or quasi-governmental bodies or authorities and vice versa;
Clauses are references to clauses of this Guarantee;
any document are to that document as amended, supplemented, novated or replaced from time to time;
statutes or provisions of statutes are references to those statutes, or those provisions, as from time to time amended, replaced or re-enacted; and
the Beneficiaries include each of its successors.
Clause headings shall not affect the meaning of any provision.
Subject to clause 2.4, the Guarantor:
irrevocably and unconditionally guarantees the due and punctual discharge of each Guaranteed Obligation as it falls due;
as a separate and independent obligation, shall pay to the Beneficiaries on demand by the Beneficiaries as a principal debtor by way of indemnity for the Guaranteed Obligations, all such monies (including, without limitation, principal, interest and expenses) due and payable by the Purchaser in respect of the Instalments pursuant to the SPA; and
shall, if any Guaranteed Obligation becomes unenforceable, invalid or illegal, as an independent and primary obligation, indemnify the Beneficiaries immediately on demand against any cost, loss or liability the Beneficiaries may incur as a result of the Purchaser not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by the Purchaser on the date when it would have been due.
accrue at the rate of 7% on any amount not paid under this Guarantee from the date of demand until actual payment both before and after judgment on a daily basis and on a 360-day year basis;
be compounded quarterly both before and after judgment; and
be payable on demand made by the Beneficiaries from time to time.
This Guarantee shall take effect upon signing by the parties hereto and shall remain in force until all sums due and owing in accordance with the terms of this Guarantee have been paid to the Beneficiaries by the Guarantor (or the Purchaser).
The payment obligations of the Guarantor under this Guarantee shall be superior to any of the liability it owes to its Affiliates (including but not limited to the Purchaser) and shall rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors.
Notwithstanding anything to the contrary contained in this Guarantee, the Guarantors maximum aggregate liability under this Guarantee shall not exceed the Guarantee Liability Amount.
The Beneficiaries shall not proceed or claim against the Guarantor under this Guarantee unless:
if the Vessel Return Condition is satisfied, the Trigger Event Date has occurred and the Beneficiaries have, subject to clause 2.7 below, sold or otherwise disposed of the Relevant Vessel in accordance with the terms of the Mortgage and Guaranteed Obligations remain outstanding after application of the net proceeds of such sale or other disposition to the repayment of the Instalments and interest pursuant to the SPA in accordance with the terms of the Mortgage and the SPA; or
if the Vessel Return Condition is not satisfied, the Trigger Event Date has occurred.
The Beneficiaries shall give the Guarantor not less than 45 days notice of any intended bona fide sale or other disposition of the Relevant Vessel pursuant to the exercise by the Beneficiaries of its remedies under the Mortgage so as to afford the Guarantor the opportunity to maximise the amount of the Beneficiaries recovery from such sale or disposition. Without prejudice to the generality of other provisions under this Guarantee, the Beneficiaries shall conduct such sale or other disposition of the Relevant Vessel in good faith.
Preservation of Liability
Action or inaction by Beneficiaries. The Beneficiaries may without notice to the Guarantor and without prejudice to any obligation of the Guarantor:
grant, discontinue, increase, reduce, terminate or vary in any way any agreement with or financial accommodation to any person or any related banking charges, interest or fees;
allow time, indulgence or other concession to any person;
enter into, vary, release or refrain from taking, perfecting or enforcing any right or security which it holds now or in the future from any person; and
do or neglect to do anything which (but for this Clause) might operate to release or reduce the obligations of the Guarantor under this Guarantee.
Other circumstances The liability of the Guarantor to the Beneficiaries shall not be affected by:
any security given or payment made to the Beneficiaries being avoided or reduced under any law relating to insolvency;
any change in the constitution or composition of the Beneficiaries, the Purchaser or the Guarantor or any statutory or other compromise or arrangement with creditors affecting the Purchaser;
the insolvency, bankruptcy, liquidation, winding-up, incapacity, lack of authority, death or disability of the Guarantor or the Purchaser or of any person purporting to act on behalf of either of them;
any amendment of the SPA that may be agreed between the Beneficiaries and the Purchaser from time to time; or
any other right or security held by the Beneficiaries at any time being defective, void or unenforceable.
Other defences The liability of the Guarantor under this Guarantee shall not be affected by anything which would not have released or reduced such liability had the liability been as a principal debtor instead of as a guarantor.
Preservation of Rights
Preservation This Guarantee shall be continuing notwithstanding any intermediate discharge of the Guaranteed Obligations. This Guarantee is in addition to any other rights or security now or in the future held by the Beneficiaries for the Guaranteed Obligations and shall not merge with or prejudice or be prejudiced by any such rights or security or any other rights of the Beneficiaries, all of which the Beneficiaries may deal with as it wishes without affecting the rights of the Beneficiaries under this Guarantee.
Release conditional Any release, settlement, discharge or arrangement relating to the liability of the Guarantor under this Deed shall be conditional upon no payment, assurance or security received by the Beneficiaries in respect of the Guaranteed Obligations being avoided or reduced under any law relating to insolvency, and the Beneficiaries may after any such avoidance or reduction exercise all or any of its rights under this Guarantee or any other rights which it would have been entitled to exercise but for such release, settlement, discharge or arrangement.
Restrictions on Guarantor Until all claims of the Beneficiaries in respect of the Guaranteed Obligations have been discharged in full the Guarantor shall not:
be subrogated to any of the rights of the Beneficiaries;
take any steps to enforce any claim that it may have against the Purchaser; or
have the benefit of any security from the Purchaser.
Other payment sources Subject to clause 2, the Beneficiaries may obtain payment of the Guaranteed Obligations from any source in any order without releasing or reducing the liability of the Guarantor and may enforce this Guarantee before or after resorting to any such other means of payment.
Representations and Warranties
The Guarantor represents and warrants to the Beneficiaries that on each day on which any Guaranteed Obligations remain outstanding:
Compliance with legal restrictions no provision of this Guarantee contravenes any of the provisions of its memorandum or articles of association or other constitutional documents and neither this Guarantee nor its performance will infringe any law or obligation binding upon it;
Status (a) it is duly constituted and in good standing under the laws of the country in which it is incorporated; (b) it is not insolvent or in liquidation or administration or subject to any other insolvency procedure; (c) no receiver, manager, trustee, custodian or analogous officer has been appointed in respect of any part of its property, undertaking or assets; and (d) it has the appropriate power and authority to own its property and assets and to carry on its business as now conducted;
Capacity it has the appropriate power to enter into and perform the terms and conditions of this Guarantee and has taken all necessary action to authorise the execution, delivery and performance of this Guarantee;
Obligations binding the obligations expressed as being assumed by it under this Guarantee constitute its valid, legal and binding obligations;
Other approvals no consent, permit, licence, approval, authorisation or registration of or with any governmental, judicial or other third party is required or desirable in connection with the execution, performance, validity or enforceability of this Guarantee; and
Authorisations it holds (and has at all times complied with in all material respects) all authorisations required to carry on its business and is not aware of any event or circumstance which could reasonably be expected adversely to affect its right to hold or to obtain renewal of all such authorisations or to obtain any new authorisations which will or may be required in the future pursuant to any regulatory provisions in order to carry on its business.
External factors All payments made by the Guarantor under this Guarantee shall be paid without set-off or counterclaim to the credit of such account as the Beneficiaries may designate and shall be made in full and free and clear of any deduction or withholding save for such deductions and withholdings as are required by law. If the Guarantor is required by law to make any deduction or withholding from any payment due under this Guarantee, the Guarantor shall simultaneously pay whatever additional amount is necessary to ensure that the Beneficiaries receives and retains a net sum equal to the payment it would have received had no deduction or withholding been made.
Set-off The Beneficiaries may at any time or times without notice (both before and after demand) set off any matured liability of the Guarantor to the Beneficiaries against any matured liability of the Beneficiaries to the Guarantor and may for such purpose convert, purchase or exchange any currency and estimate any unascertained obligation.
Indemnity The Guarantor shall indemnify the Beneficiaries on demand against any loss or expense (including, without limitation, legal fees) sustained or incurred as a result either of a failure by the Guarantor to perform any of its obligations under this Guarantee or of any representation or warranty made in this Guarantee having been incorrect when made.
Costs The Guarantor shall reimburse the Beneficiaries on demand for all amounts (including legal fees and all value added and similar taxes) which the Beneficiaries may from time to time reasonably pay in connection with the enforcement and preservation of the rights of the Beneficiaries under it.
Expenses The Guarantor shall pay all stamp, registration and other taxes payable in connection with this Guarantee and any action taken in connection with this Guarantee including all liabilities, costs and expenses resulting from any failure to pay or delay in paying any such tax.
Variation No variation of this Guarantee shall be valid unless in writing signed by the Guarantor and the Beneficiaries.
Waivers No failure by the Beneficiaries to exercise and no delay on its part in exercising any right shall operate as a waiver of that right. No single or partial exercise of any right shall preclude any further or additional exercise of that right.
Partial Invalidity If any provision of this Guarantee is or becomes invalid, illegal or unenforceable in any respect the validity, legality and enforceability of the remaining provisions shall not be affected or impaired.
Counterparts This Guarantee may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Guarantee.
Contracts (Rights of Third Parties) Act 1999 A person who is not a party to this Guarantee has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Guarantee.
Effectiveness This Guarantee (including, for the avoidance of doubt, Clauses 2 to 4) shall become effective only upon Closing (as defined in the SPA) having occurred under the SPA.
Assignment and transfer
Subject to the prior written consent of the Guarantor (such consent not to be unreasonably withheld), the Beneficiaries may:
assign any of its rights; or
transfer by novation any of its rights or obligations,
under this Guarantee to a bank or financial institution or to a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in Deferred Payments, securities or other financial assets.
Communications in writing
Any communication to be made under or in connection with this Guarantee shall be made in writing and unless otherwise stated, may be made by letter.
The address and email address (and the department or officer, if any, for whose attention the communication is to be made) for any communication or document to be made or delivered under or in connection with this Guarantee is:
in the case the Guarantor:
Attention: John Gellert / Andrew Everett
460 Park Ave
New York, NY 10022
United States of America
Email: ***@*** / ***@***
in the case of the 1st Beneficiary:
Attention: Zhang Min
6th Floor, No. 5299 Binjiang Avenue, Pudong New Area, Shanghai, 200127, P.R.China.
in the case of the 2nd Beneficiary:
Attention: Wang Bo
23nd floor, No.628 Minsheng Road, Pudong New Area, Shanghai, 200135, P.R.China.
or, in each case, any substitute address, and email address, or department or officer as the Guarantor or the Beneficiaries may notify to the other party, by not less than five days notice.
Any communication or document made or delivered by one person to another under or in connection with this Guarantee will only be effective if by way of letter, when it has been left at the relevant address or five (5) days after being deposited in the post postage prepaid in an envelope addressed to it at that address and, if a particular department or officer is specified as part of its address details provided under Clause 10.2, if addressed to that department or officer. Any communication or document which becomes effective, in accordance this Clause, after 5pm in the place of receipt shall be deemed only to become effective on the following day.
Any communication to be made between the parties under or in connection with this Guarantee may be made by electronic mail or other electronic means to the extent that the parties agree that, unless and until notified to the contrary, this is to be an accepted form of communication, and if the parties:
notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and
notify each other of any change to their address or any other such information supplied by them by not less than five (5) days notice.
Any electronic communication made between the parties will be effective only when actually received in readable form and only if it is addressed in such a manner as the parties shall specify for this purpose.
Any electronic communication which becomes effective, in accordance with this Clause, after 5:00pm in the place of receipt shall be deemed only to become effective on the following day.
Any notice given under or in connection with this Guarantee must be in English.
All other documents provided under or in connection with this Guarantee must be in English, or if not in English, and if so required by the receiving party, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
Law and Jurisdiction
This Guarantee and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.
Any dispute arising out of or in connection with this Guarantee, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in accordance with the rules of London Maritime Arbitrators Association for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be London, United Kingdom. The Tribunal shall consist of three arbitrators. The language of the arbitration shall be English.
This Guarantee has been signed on behalf of the Beneficiaries and executed as a deed by the Guarantor and is delivered by the Guarantor on the date written at the start of this Guarantee.
|Executed as a||)|
|Deed by SEACOR MARINE||)|
|HOLDINGS INC||) /s/ John Gellert|
Executed as a
Deed by CHINA SHIPPING FAN TAI LIMITED
|)||/s/ Ming Dong|
its duly authorised signatories
Executed as a
Deed by CHINA SHIPPING INDUSTRY (HONG KONG) CO., LIMITED
|)||/s/ Yu Jianzhong|
its duly authorised signatories