GUARANTY
EXHIBIT 99.11
GUARANTY,
dated as of 5 January, 2006 (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 favour of STENA BULK AB, a company incorporated in the Kingdom of Sweden (the
“Charterer”).
RECITALS
WHEREAS, CONCEPT 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 Concept bearing Official Number 733760
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 l 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, cancelled, 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 of 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:
Stena Bulk AB
Xxx Xxxxxxxx
XX-000 00 Xxxxxxxxxx
Xxxxxx
XX-000 00 Xxxxxxxxxx
Xxxxxx
Facsimile No.: x00 00 00 00 00
If to the Guarantor:
1st Floor, The Hayward Xxxxxxxx
00 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx XX00
00 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx XX00
Xxxxxxxxx No.: x0 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.
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/ XXXXXX X. XXXXX | |||||
| Accepted and Agreed to this 5th day of January, 0000 |
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| XXXXX XXXX XX | ||||
By:
|
/s/ XXXX-XXXX XXXXXX | |||
