Exhibit 10.9.1
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 Northern Marine Management Ltd., a company incorporated in Scotland
(the "Manager")
RECITALS
WHEREAS, the Manager, and COMPANION LTD., a company incorporated in the
Islands of Bermuda (the "Owner") are entering into a Ship Management Agreement
on the date hereof (as amended from time to time, the "Ship Management
Agreement") pursuant to which the Manager will agree to provide certain services
with respect to that certain motor tanker vessel called M/T "Stena Companion"
bearing Official Number 733743 registered in the name of the Owner under Bermuda
flag (the "Vessel");
WHEREAS, the Owner is a wholly-owned subsidiary of Guarantor; and
WHEREAS, in order to induce the Manager to enter into the Ship Management
Agreement with the Owner, Guarantor desires to execute this Agreement to
guarantee the Owner's payment obligations under the Ship Management Agreement.
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 Manager the due and punctual payment of all obligations and liabilities
owing by the Owner under the Ship Management Agreement 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 Manager in enforcing
its rights under this Guaranty provided that the Manager 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) any change of the time, manner or
place of payment, or any other term, of the Guaranteed Obligations, (iii) the
failure, omission, delay or lack on the part of the Manager 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 Ship Management Agreement and (vi) any law, regulation
or order of any jurisdiction affecting any term of the Guaranteed Obligations or
the Manager'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 Manager 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 Manager, 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 Manager such additional
amount as shall be necessary to enable the Manager 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 Manager 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 Ship Management
Agreement.
Section 5. Representations and Warranties of the Guarantor. The Guarantor
hereby represents and warrants to the Manager that this Guaranty has been duly
executed and
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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 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 Manager:
Northern Marine Management, Ltd.
Xxxx Xxxxx
0 Xxxxxxx Xxxxxx
Xxxxxxxxx X00 0XX
Xxxxxxxx
Telephone No.: x00 000 000 0000
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Facsimile No.: + 44 141 941 2791
If to the Guarantor:
Arlington Tankers Ltd.
First Floor, The Hayward Building
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 Manager 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 Manager 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 Manager
and a successor or permitted assignee of the Manager.
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.
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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
NORTHERN MARINE MANAGEMENT LTD.
By:/s/ Mats Xxxxxxxx
--------------------
Name: Mats Xxxxxxxx
Title: Director
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