Exhibit 10.7.3
AGREEMENT
AGREEMENT, dated as of October 20, 2004 (this "Agreement"),
between Stena AB (publ), a company incorporated in the Kingdom of Sweden
("Stena"), and Concord Ltd., a company incorporated in the Islands of Bermuda
(the "Owner").
RECITALS
WHEREAS, Northern Marine Management Ltd., a company
incorporated in Scotland (the "Manager"), and 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 Concord bearing Official Number 733744 registered in the name of the Owner
under Bermuda flag (the "Vessel");
WHEREAS, the Manager is a wholly-owned subsidiary of Stena;
and
WHEREAS, in order to induce the Owner to enter into the Ship
Management Agreement with the Manager, Stena desires to execute this Agreement
to guarantee the Manager's payment obligations under the Ship Management
Agreement in respect of certain off-hire periods and to provide a replacement
ship manager in the event the Manager fails to perform its obligations under the
Ship Management Agreement, in each case as more fully described below.
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. Guarantee of Off-Hire Indemnity Payments. Stena, as
primary obligor and not merely as surety, hereby irrevocably, unconditionally
and absolutely hereby guarantees to the Owner the due and punctual payment of
all amounts due to the Owner from the Manager in respect of the Manager's
indemnification of the Owner for days of off-hire or reduced-hire pursuant to
Clause 24 of the Ship Management Agreement (the "Guaranteed Obligations"). In
case of failure of the Manager punctually to pay any of the amounts necessary to
satisfy the Guaranteed Obligations, Stena 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 Manager. Stena also shall pay any and all expenses (including,
without limitation, reasonable attorneys' fees and expenses) incurred by the
Owner in enforcing its rights under this Agreement provided that the Owner is
successful in enforcing its rights hereunder.
Section 2. Unconditional Obligations. The obligations of Stena
under this Agreement 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 Manager 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 Owner to assert any claim or demand or to enforce any right or remedy
against Stena or the Manager, (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 Owner's rights with respect
thereto. Stena hereby waives promptness, diligence, protest, demand of payment
and notices with respect to the Guaranteed Obligations and any requirement that
the Owner exhaust any right or take any action against the Manager.
Notwithstanding anything in this Agreement to the contrary, Stena shall be
entitled to the benefit of any right to or claim of any defense, setoff,
counterclaim, recoupment or termination to which the Manager is entitled other
than those referred to in clause (v) of this Section 2.
Section 3. Nature of Guaranteed Obligations. (a) Stena hereby
agrees that its obligations under its guarantee of the Guaranteed Obligations
constitute a guaranty of payment and not of collection only.
(b) Any and all payments by Stena 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 Stena 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 Owner, to the extent the amount to be
received from Stena after such withholding is less than the amount that would
have been received from the Manager, Stena shall pay to the Owner such
additional amount as shall be necessary to enable the Owner 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. Covenant to Provide Replacement Ship Manager. In
the event that the Manager fails to perform its obligations under the Ship
Management Agreement other than the Guaranteed Obligations and such failure
continues for 10 days following notice thereof by the Owner to Stena and the
Manager and the expiration of any cure period under the Ship Management
Agreement, upon notice to Stena and the Manager that the Owner intends to
terminate the Ship Management Agreement with the Manager, Stena shall (i)
provide a replacement ship manager to perform the obligations of the Manager set
forth in the Ship Management Agreement on substantially the same terms as the
Ship Management Agreement and for the same amounts payable to the Manager
pursuant to the Ship Management Agreement and (ii) either (A) enter into an
agreement with the Owner on the same terms as set forth herein with respect to
the Guaranteed Obligations of such replacement ship manager or (B) provide such
evidence as the Owner may reasonably require that this Agreement shall continue
in full force and effect with respect to such replacement ship manager.
2
Section 5. Insolvency. This Agreement 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 Owner upon the bankruptcy, insolvency,
reorganization, arrangements, adjustment, composition, dissolution, liquidation,
or the like, of the Manager or Stena, or as a result of the appointment of a
custodian, receiver, trustee, or other officer with similar powers with respect
to the Manager or Stena 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 Agreement or the Ship Management
Agreement.
Section 6. Representations and Warranties of Stena. Stena
hereby represents and warrants to the Owner that this Agreement has been duly
executed and delivered by Stena and constitutes a valid and binding obligation
of Stena, enforceable against Stena in accordance with its terms.
Section 7. Waivers and Amendments; Non-Contractual Remedies;
Preservation of Remedies. This Agreement 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 8. Governing Law. This Agreement 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 9. 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 Agreement or the transactions contemplated by this Agreement. 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 10. Notices. All notices, requests, demands and other
communications under this Agreement 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
3
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 Owner:
Concord Ltd.
First Floor, The Hayward Building
00 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx, XX00
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to Stena:
Stena AB
Masthuggskajen
XX-000 00
Xxxxxxxx, Xxxxxx
Telephone No.: x00 00 00 00 00
Facsimile No.: x00 00 00 00 00
Section 11. Counterparts. This Agreement 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 12. Assignment; Binding Effect. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors, permitted assigns and legal representatives. This
Agreement 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 Owner may assign its rights hereunder as security to its lenders.
Any assignment in violation of this Section 12 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 13. No Third-Party Beneficiaries. Nothing in this
Agreement will confer any rights or benefits upon any person or entity that is
not a party, a successor or permitted assignee of a party to this Agreement.
Section 14. Negotiated Agreement. This Agreement 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 Agreement or be used in any respect
or forum in the construction or interpretation of this Agreement or any of its
provisions.
4
Section 15. Severability. If any provision of this Agreement
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 Agreement,
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.
5
IN WITNESS WHEREOF, Stena has caused this Agreement to be
executed on its behalf by its officer thereunto duly authorized on the date
first above written.
STENA AB (PUBL)
By /s/ Mats Xxxxxxxx
-------------------------
Name: Mats Xxxxxxxx
Title: Attorney-in-fact
Accepted and Agreed to this
20th day of October, 2004
CONCORD LTD.
By:/s/ Xxxxxxxx Xxxxxxx
---------------------
Name: Xxxxxxxx Xxxxxxx
Title: Director
6
