Exhibit 4.19
Guarantee
15 March 2006
To: KOMARF HOPE 29 Shipping Company (the "Beneficiary")
1 In consideration of (i) the Beneficiary, which expression includes its
successors and assignees), at our request, agreeing to let the m.v.
"Flawless" (the "Ship") to PYLIO SHIPPING CO. LTD (the "Charterer",
which expression includes its successors and assigns) pursuant to a
"Barecon 2001" bareboat charter dated 9 March 2006 (as amended and
supplemented from time to time, the "Charter") between the Beneficiary
and the Charterer and (ii) US$1 and other good and valuable
consideration (the receipt and adequacy of which is hereby
acknowledged) we, TOP TANKERS INC. (the "Guarantor) irrevocably and
unconditionally guarantee the due and punctual payment of all sums
payable by the Charterer to the Beneficiary under or pursuant to the
Charter (including, without limitation, all charterhire, interest,
fees, costs, charges and expenses) together with interest to the date
of payment (as well after as before judgment) at such rates and upon
such terms as may from time to time be expressed to be payable by the
Charterer and any damages (whether liquidated or otherwise for breach
of the Charter) on a full and unqualified indemnity basis and
undertake that if for any reason the Charterer shall fail to pay any
sums due under or pursuant to the Charter on the due date of payment
thereunder the Guarantor shall, on demand by the Beneficiary,
unconditionally pay such sum to the Beneficiary.
2 As a separate and independent stipulation, the Guarantor irrevocably
and unconditionally agrees that if any purported obligation or
liability of the Charterer which would have been the subject of this
Guarantee had it been valid and enforceable is not or ceases to be
valid or enforceable against the Charterer on any ground whatsoever
whether or not known to the Beneficiary (including, without
limitation, any irregular exercise or absence of any corporate power
or lack of authority of, or breach of duty by, any person purporting
to act on behalf of the Charterer or any legal or other limitation,
whether under the Limitation Acts or otherwise or any disability or
incapacity or any change in the constitution of the Charterer) the
Guarantor shall nevertheless be liable to the Beneficiary in respect
of that purported obligation or liability as if the same were fully
valid and enforceable and the Guarantor were the principal debtor in
respect thereof. The Guarantor hereby agrees to keep the Beneficiary
fully indemnified on demand against all damages, losses, costs and
expenses arising from any failure of the Charterer to perform or
discharge any such purported obligation or liability or from any
invalidity or unenforceability of any of the same against the
Charterer.
3 The Guarantor's liability under this Guarantee shall not be discharged
in whole or in part or otherwise be affected in any way by reason of
(a) the Beneficiary giving the Charterer time or any other concession
or taking, holding, varying, realising or not enforcing any other
security for the liabilities of the Charterer under the Charter, (b)
any legal limitation or incapacity relating to the Charterer, (c) the
invalidity or unenforceability of the obligations of the Charterer
under the Charter or (d) any other act or omission of the Beneficiary
or any other circumstances which but for this provision would
discharge the Guarantor and any moneys expressed to be payable by the
Charterer under the terms of the Charter which may not be recoverable
from the Charterer for any such reason shall be recoverable by the
Beneficiary from the Guarantor as principal debtor.
4 This Guarantee shall expire upon termination by effluxion of time of
the Charter or otherwise in circumstances where all obligations of the
Charterer shall have been irrevocably and unconditionally discharged
in full.
5 The Beneficiary may enforce this Guarantee without first making demand
on, or taking any proceeding against, the Charterer.
6 All payments by the Guarantor hereunder shall be made without set-off
or counterclaim and, subject to paragraph 7 hereof, free and clear of
any deductions or withholdings in United States Dollars in same day
funds (or such other funds as may then be customary for the settlement
of international bank transactions in the relevant currency) not later
than 10am (local time in the place of payment) on the due date to the
account of the Beneficiary notified to the Guarantor by the
Beneficiary.
7 If at any time the Guarantor is required to make any deduction or
withholding in respect of any taxes (which for the purpose of this
Guarantee includes all present and future taxes, levies, imposts,
duties, fees or charges of whatever nature together with interest
thereon and penalties in respect thereof) from any payment due under
this Guarantee, the sum due from the Guarantor in respect of such
payment shall be increased to the extent necessary to ensure that,
after the making of such deduction or withholding, the Beneficiary
receives on the due date for such payment (and retains, free from any
liability in respect of such deduction or withholding) a net sum equal
to the sum which it would have received had no such deduction or
withholding been required to be made and the Guarantor shall indemnify
the Beneficiary against any losses or costs incurred by it by reason
of any failure of the Guarantor to make any such deduction or
withholding or by reason of any increased payment not being made on
the due date for such payment. The Guarantor shall promptly deliver to
the Beneficiary any receipts, certificates or other proof evidencing
the amounts (if any) paid or payable in respect of any deduction or
withholding as aforesaid.
8 If any sum due from the Guarantor under this Guarantee or any order or
judgment given or made in relation hereto has to be converted from the
currency (the "first currency") in which the same is payable under
this Guarantee or under such order or judgment into another currency
(the "second currency") for the purpose of (i) making or filing a
claim or proof against the Guarantor, (ii) obtaining an order or
judgment in any court or other tribunal or (iii) enforcing any order
to judgment given or made in relation to this Guarantee, the Guarantor
shall indemnify and hold harmless the Beneficiary from and against any
loss suffered as a result of any difference between (a) the rate of
exchange used for such purpose to convert the sum in question from the
first currency into the second currency and (b) the rate or rates of
exchange at which the Beneficiary may in the ordinary course of
business purchase the first currency with the second currency upon
receipt of a sum paid to it in satisfaction, in whole or in part, of
any such order, judgment, claim or proof. Any amount due from the
Guarantor under this clause 8 shall be due as a separate debt and
shall not be affected by judgment being obtained for any other sums
due under or in respect of this Guarantee and the term "rate of
exchange" includes any premium and costs of exchange payable in
connection with the purchase of the first currency with the second
currency.
9 The Guarantor represents and warrants to the Beneficiary that:
(a) the Guarantor is duly incorporated and validly existing in good
standing under the laws of the Xxxxxxxx Islands as a limited
liability corporation and has power to carry on its business as
it is now being conducted and to own its property and other
assets;
(b) the Guarantor has power to execute, deliver and perform its
obligations under this Guarantee, and all necessary corporate,
shareholder and other action has been taken to authorise the
execution, delivery and performance of the same and no limitation
on the power of the Guarantor to give guarantees will be exceeded
as a result of this Guarantee;
(c) this Guarantee constitutes valid, legal and enforceable binding
obligations of the Guarantor;
(d) the execution and delivery of, the performance of its obligations
under and compliance with the provisions of this Guarantee by the
Guarantor will not (i) contravene any existing applicable law,
statute, rule or regulation or any judgment, decree or permit to
which the Guarantor is subject, or (ii) contravene or conflict
with any provision of the Guarantor's Articles of Incorporation,
By-Laws or other constitutional documents;
(e) it is not necessary to ensure that legality, validity,
enforceability or admissibility in evidence of this Guarantee
that it or any other instrument be notarised, filed, recorded,
registered or enrolled in any court, public office or elsewhere
in the Xxxxxxxx Islands or that any stamp, registration or
similar tax or charge be paid in the Xxxxxxxx Islands on or in
relation to this Guarantee and this Guarantee is in proper form
for its enforcement in the courts of the Xxxxxxxx Islands;
(f) the choice by the Guarantor of English law to govern this
Guarantee is valid and binding; and
(g) neither the Guarantor nor any of its assets are entitled to
immunity on the grounds of sovereignty or otherwise from any
legal action or proceeding (which shall include, without
limitation, suit, attachment prior to judgment, execution or
other enforcement).
10 No failure or delay on the part of the Beneficiary to exercise any
right, power or remedy under this Guarantee shall operate as a waiver
thereof, nor shall any single or partial exercise by the Beneficiary,
of any right, power or remedy preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The
remedies provided in this Guarantee are cumulative and are not
exclusive of any remedies provided by law.
11 The Guarantor may not assign any of its rights or obligations
hereunder. The Beneficiary may assign any of its rights hereunder to
Fortis Bank (Nederland) N.V. of Coolsingel 93, 3012 AE Rotterdam, The
Netherlands (the "Agent") (acting as security agent and trustee on
behalf of a syndicate of banks and other ancillary parties). The
Guarantor hereby agrees that it will promptly execute an
acknowledgement in favour of the Agent of any notice of assignment
delivered to it relating to such assignment.
12 Every claim or notice under this Guarantee shall be in writing and may
be given or made by post or fax to the Guarantor or the Beneficiary at
their respective addresses given above or to another address notified
by the Guarantor or the Beneficiary (or its assignee) to the other
under this Guarantee. Every notice shall be deemed to have been
received, in the case of a fax at the time of despatch (provided that
if the date of despatch is not a working day in the country of the
addressee, it shall be deemed received on the next working day), and
in the case of a letter, when delivered.
13 (a) This Guarantee shall be governed by and construed in accordance
with English law.
(b) The Guarantor agrees, for the benefit of the Beneficiary, that
any legal action or proceedings arising out of or in connection
with this Guarantee may be brought in English courts. The
Guarantor irrevocably and unconditionally submits to the
jurisdiction of such courts and irrevocably designates, appoints
and empowers Top Tankers (UK) Limited at present of 00 Xxxx
Xxxxxx, X0X 0XX, Xxxxxx, Xxxxxxx to receive for it and on its
behalf, service or process issued out of the English courts in
any such legal action or proceedings. The submission to such
jurisdiction shall not (and shall not be construed so as to)
limit the right of the Beneficiary to take proceedings against
the Guarantor in any other court of competent jurisdiction nor
shall the taking of proceedings in any one or more jurisdictions
preclude the taking of proceedings in any other jurisdiction,
whether concurrently or not.
14 No term of this Guarantee shall be enforceable pursuant to the
Contracts (Rights of Third Parties) Act 1999 by a person who is not a
party to this Guarantee.
Yours faithfully
EXECUTED as a DEED
By: Xxxxxxxx Xxxxxxxxx
for and on behalf of
TOP TANKERS INC.
Pursuant to a Power of Attorney
dated 8 March 2006
In the presence of:
Witness: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Address: Top Tanker Management Inc.
000-000 Xxxxxxxxx Xx. 00000 Xxxxxx
Occupation: Advocate
