Exhibit 4.23
Guarantee
15 March 2006
To: KOMARF HOPE 30 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.
"Stopless" (the "Ship") to VITSI 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 Guarantors 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 Guarantors 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:
Name: Xxxxxxx Xxxxx
Address: Top Tanker Management Inc.
000-000 Xxxxxxxxx Xx, 00000 Xxxxxx
Occupation: Advocate
