Exhibit 10.8.5
GUARANTY
GUARANTY, dated as of October 20, 2004 (as amended, modified
or supplemented from time to time, this "Guaranty"), made by ARLINGTON TANKERS
LTD., a company incorporated in the Islands of Bermuda (the "Guarantor"), in
favor of CM V-XXX XX LIMITED, a company incorporated in the Islands of Bermuda
(the "Charterer").
RECITALS
WHEREAS, VICTORY LTD., a company incorporated in Bermuda (the
"Owner") and the Charterer are entering into a Time Charter Party on the date
hereof (as amended from time to time, the "Charter") pursuant to which the
Charterer will agree to time charter that certain motor tanker vessel called M/T
"Stena Victory" bearing Official Number 733717 registered in the name of the
Owner under Bermuda flag (the "Vessel");
WHEREAS, the Owner is a wholly-owned subsidiary of the
Guarantor; and
WHEREAS, the Guarantor will obtain benefits from the
chartering of the Vessel by the Owner and, accordingly, desires to execute this
Guaranty in order to induce the Charterer to enter into the Charter with the
Owner.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
Section 1. Guaranty. The Guarantor, as primary obligor and not
merely as surety, hereby irrevocably, unconditionally and absolutely hereby
guarantees to the Charterer the due and punctual payment of all obligations and
liabilities owing by the Owner under the Charter and the due performance and
compliance by the Owner with all terms, conditions and agreements contained
therein (all such obligations and liabilities being herein collectively called
the "Guaranteed Obligations"). In case of failure of the Owner punctually to pay
any of the amounts necessary to satisfy the Guaranteed Obligations, the
Guarantor shall cause such amounts to be paid punctually when and as the same
shall become due and payable as if such payment were made by the Owner. The
Guarantor also shall pay any and all expenses (including, without limitation,
reasonable attorneys' fees and expenses) incurred by the Charterer in enforcing
its rights under this Guaranty provided that the Charterer is successful in
enforcing its rights hereunder.
Section 2. Unconditional Obligations. The obligation of the
Guarantor to guarantee the Guaranteed Obligations set forth in Section 1 above
shall be absolute and unconditional irrespective of (i) any lack of
enforceability against the Owner of the Guaranteed Obligations, (ii) a change of
any term of the Guaranteed Obligations, (iii) the failure, omission, delay or
lack on the part of the Charterer to
assert any claim or demand or to enforce any right or remedy against the
Guarantor or the Owner, (iv) any reduction, limitation, impairment or
termination of the Guaranteed Obligations for any reason, including any claim of
waiver, release, surrender, alteration or compromise, (v) any invalidity,
illegality or unenforceability in whole or in part of the Charter and (vi) any
law, regulation or order of any jurisdiction affecting any term of the
Guaranteed Obligations or the Charterer's rights with respect thereto. The
Guarantor hereby waives promptness, diligence, protest, demand of payment and
notices with respect to the Guaranteed Obligations and any requirement that the
Charterer exhaust any right or take any action against the Owner.
Notwithstanding anything in this Guaranty to the contrary, the Guarantor shall
be entitled to the benefit of any right to or claim of any defense, setoff,
counterclaim, recoupment or termination to which the Owner is entitled other
than those referred to in clause (v) of this Section 2.
Section 3. Nature of Guaranteed Obligations. (a) The Guarantor
hereby agrees that this Guaranty is a guaranty of payment and performance and
not of collection only.
(b) Any and all payments by the Guarantor under the Guaranteed
Obligations shall be made free and clear of, and without deduction or
withholding for or on account of, any and all taxes, monetary transfer fees or
other amounts except to the extent such deduction or withholding of any tax is
required by applicable law. If the Guarantor shall be required by applicable law
to deduct or withhold any tax or other amount from or in respect of any sum
payable hereunder to or for the benefit of the Charterer, to the extent the
amount to be received from the Guarantor after such withholding is less than the
amount that would have been received from the Owner, the Guarantor shall pay to
the Charterer such additional amount as shall be necessary to enable the
Charterer to receive, after such withholding (including any withholding with
respect to such additional amount), the amount it would have received if such
withholding had not been required.
Section 4. Insolvency. This Guaranty shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, in
whole or in part of any of the Guaranteed Obligations is rescinded or must
otherwise be restored or returned by the Charterer upon the bankruptcy,
insolvency, reorganization, arrangements, adjustment, composition, dissolution,
liquidation, or the like, of the Owner or the Guarantor, or as a result of the
appointment of a custodian, receiver, trustee, or other officer with similar
powers with respect to the Owner or the Guarantor or any substantial part of
either person's respective property, or otherwise, all as though such payment
had not been made notwithstanding any termination of this Guaranty or the
Charter.
Section 5. Representations and Warranties of the Guarantor.
The Guarantor hereby represents and warrants to the Charterer that this Guaranty
has been duly executed and delivered by the Guarantor and constitutes a valid
and binding obligation of the Guarantor, enforceable against the Guarantor in
accordance with its terms.
Section 6. Waivers and Amendments; Non-Contractual Remedies;
Preservation of Remedies. This Guaranty may be amended, superseded, canceled,
renewed or extended, and
2
the terms hereof may be waived, only by a written instrument signed by the
parties or, in the case of a waiver, by the party waiving compliance. No delay
on the part of any party on exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any waiver on the part of any party
of any right, power or privilege, nor any single or partial exercise of any such
right, power or privilege, preclude any further exercise thereof or the exercise
of any other such right, power or privilege. The rights and remedies herein
provided are cumulative and are not exclusive of any rights or remedies that any
party may otherwise have at law or in equity.
Section 7. Governing Law. This Guaranty shall be construed,
performed and enforced in accordance with the laws of the State of New York
without giving effect to its principles or rules of conflict of laws thereof to
the extent such principles or rules would require or permit the application of
the laws of another jurisdiction.
Section 8. Consent to Jurisdiction. Each of the parties hereto
irrevocably and unconditionally submits to the jurisdiction of the United States
Federal and New York State courts located in New York City for the purposes of
enforcing this Guaranty. In any action, suit or other proceeding, each of the
parties hereto irrevocably and unconditionally waives and agrees not to assert
by way of motion, as a defense or otherwise any claims that it is not subject to
the jurisdiction of the above courts, that such action or suit is brought in an
inconvenient forum or that the venue of such action, suit or other proceeding is
improper. Each of the parties hereto also agrees that any final and unappealable
judgment against a party hereto in connection with any action, suit or other
proceeding may be enforced in any court of competent jurisdiction, either within
or outside of the United States. A certified or exemplified copy of such award
or judgment shall be conclusive evidence of the fact and amount of such award or
judgment.
Section 9. Notices. All notices, requests, demands and other
communications under this Guaranty must be in writing and will be deemed to have
been duly given or made as follows: (a) if sent by registered or certified mail
in the United States return receipt requested, upon receipt; (b) if sent by
reputable overnight air courier two business days after mailing; (c) if sent by
facsimile transmission, with a copy mailed on the same day in the manner
provided in (a) or (b) above, when transmitted and receipt is confirmed by
telephone; or (d) if otherwise actually personally delivered, when delivered,
and shall be delivered as follows:
If to the Charterer:
CM V-XXX XX LIMITED
c/o Concordia Maritime AG
Xxxxxxxxx Aasa Carlsson
Xxxxxxxxxxxx
XX-0000 Xxx
Xxxxxxxxxxx
Telephone No.: x00 00 000 0000
Facsimile No.: x00 00 000 0000
3
If to the Guarantor:
Arlington Tankers Ltd.
0xx Xxxxx, Xxx Xxxxxxx Xxxxxxxx
00 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx XX00
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Section 10. Counterparts. This Guaranty may be executed by the
parties hereto in counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section 11. Assignment; Binding Effect. This Guaranty shall be
binding upon the Guarantor and its successors, permitted assigns and legal
representatives and shall inure to the benefit of the Charterer and its
successors, permitted assigns and legal representatives. This Guaranty and any
rights of either party hereunder, may not be assigned, directly or indirectly,
without the prior written consent of the other party (which consent may be
withheld at the sole discretion of such other party), provided that Charterer
may assign its rights hereunder as security to its lenders. Any assignment in
violation of this Section 11 shall be void and shall have no force and effect,
it being understood for the avoidance of doubt that in the event that a party
shall merge or consolidate with or into another entity or enter into a business
combination or other similar transaction with another entity, such transaction
shall constitute an assignment.
Section 12. No Third-Party Beneficiaries. Nothing in this
Guaranty will confer any rights or benefits upon any person or entity other than
the Charterer and a successor or permitted assignee of the Charterer.
Section 13. Negotiated Agreement. This Guaranty has been
negotiated by the parties and the fact that the initial and final draft will
have been prepared by either party or an intermediary will not give rise to any
presumption for or against any party to this Guaranty or be used in any respect
or forum in the construction or interpretation of this Guaranty or any of its
provisions.
Section 14. Severability. If any provision of this Guaranty is
held to be void or unenforceable, in whole or in part, (i) such holding shall
not affect the validity and enforceability of the remainder of this Guaranty,
including any other provision, paragraph or subparagraph, and (ii) the parties
agree to attempt in good faith to reform such void or unenforceable provision to
the extent necessary to render such provision enforceable and to carry out its
original intent.
4
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to
be executed on its behalf by its officer thereunto duly authorized on the date
first above written.
ARLINGTON TANKERS LTD.
By:/s/ Xxxx Xxxxxxx
----------------------
Name: Xxxx Xxxxxxx
Title: Chief Financial Officer
Accepted and Agreed to this
20th day of October, 2004
CM V-XXX XX LIMITED
By:/s/ Xxxxx Xxxxxxx
--------------------
Name: Xxxxx Xxxxxxx
Title: Director
