Exhibit 4.58
Guarantee
June 2006
To: ICON Spotless, LLC a Delaware limited liability company of 0000 Xxxxxxxxxxx
Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000, Xxxxxx Xxxxxx of
America (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.
Spotless (the "Ship") to Idi Shipping Company Limited (the "Charterer",
which expression includes its successors and assigns) pursuant to a
"Barecon 2001" bareboat charter dated 14 March 2006 between Xxxx Maritime
S.A. of 00 Xxxxx Xxxxxx, Xxxxxxxx, Liberia (the "Original Owner") and the
Charterer (the "Original Charter") as novated in favour of the
Beneficiary and amended pursuant to a novation agreement dated 16 June
2006 made between the Original Owner, the Beneficiary and the Charterer
(the "Novation Agreement" and together with the Original Charter and as
further amended and supplemented from time to time, the "Charter") 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 Guarantor's Undertakings
10.1 General Undertakings
The Guarantor hereby agrees and undertakes to the Beneficiary that it
will at all times until expiry of this Guarantee in accordance with
paragraph 4 thereof deliver to the Beneficiary sufficient copies of each
of the following documents:
(a) not later than one hundred and eighty (180) days after the end of
each financial year, the audited balance sheet and profit and loss
account of the Guarantor and the audited consolidated balance
sheet and the consolidated profit and loss account of the Group
for such financial year and a cash flow statement for the Group
for such financial year together with the report of the auditors
thereon, the notes thereto and the directors' report thereon, if
any;
(b) at the time of issue thereof every report, circular, notice or
like document issued by the Guarantor to its shareholders or
creditors generally; and
(c) at the time of the delivery of the annual audited financial
statements, a statement from the Guarantor's auditors stating the
respective amounts of the Net Asset Value, Book Equity, the Total
Debt and the Total Market Value Adjusted Assets, in respect of or,
as the case may be, as at the end of the financial year to which
such financial statements relate indicating the manner in which
the same have been calculated and whether or not the limits
imposed by paragraphs 10.2.1, 10.2.4 and 10.2.5 have or have not
been exceeded at such time and so that each such statement shall
(in the absence of manifest error or in the absence of the
Mortgagee reaching a different determination pursuant to paragraph
10.2.8) be conclusive evidence of such amounts or facts for the
purposes of this Guarantee.
10.2 Financial Undertakings
The Guarantor hereby agrees and undertakes to the Beneficiary that it
will at all times until expiry of this Guarantee in accordance with
paragraph 4 hereof:
10.2.1 ensure that:
(d) (i) a minimum amount of Twenty million United States Dollars
($US20,000,000) shall be standing to the credit of the Guarantor's
Account for the period commencing on the date of this Guarantee
and ending on 15 December 2006 and (ii) thereafter and until the
expiry of this Guarantee in accordance with paragraph 4 hereof a
minimum amount of Twenty five million United States Dollars
($US25,000,000) shall be standing to the credit of the Guarantor's
Account and further ensure that there are no Encumbrances
whatsoever existing over or in relation to such minimum amount;
(e) it maintains cash balances of at least Fifty million United States
Dollars (US$50,000,000) in bank accounts in its name or in the
name of a member of the Group and agreed by the Beneficiary in
writing from time to time and for the purposes of this clause
7.2.1(b) the expression "bank accounts" shall exclude any bank
accounts which are subject to an Encumbrance;
10.2.2 endeavour that any Excess Cash Flow in relation to the Ship will be paid
into the Guarantor's Account;
10.2.3 provide details to the Beneficiary at three (3) monthly intervals
starting from the date of this Guarantee evidencing the operating
expenses and the Earnings of the Ship;
10.2.4 ensure that its Net Asset Value at all times exceeds One hundred and
twenty five million United States Ddllars (US$125,000,000); and
10.2.5 ensure that its Book Equity shall at all times exceed Seventy five
million United States Dollars ($US75,000,000).
10.2.6 For the purpose of this paragraph 10, the following expressions shall
have the following meanings:
"Applicable Accounting Principles" means accounting principles, concepts,
bases and policies generally adopted and accepted in the United States of
America consistently applied;
"Book Equity" means the aggregate of the amounts paid-up or credited as
paid-up on the Guarantor's issued share capital and the amount of the
consolidated capital and revenue reserves of the Group (including any
share premium account, capital redemption reserve fund and any credit
balance on the consolidated profit and loss account of the Group) all as
shown by the latest audited consolidated balance sheet and profit and
loss account of the Group delivered under this Guarantee but after:
(f) deducting any debit balance on such consolidated profit and loss
account;
(g) deducting any amount shown in such consolidated balance sheet in
respect of goodwill (including goodwill arising on consolidation)
and other intangible assets;
(h) deducting (so far as not otherwise excluded as attributable to
minority interests) a sum equal to the aggregate of the amount by
which the book value of any fixed assets of any member of the
Group has been written up after 31 December 2005 (or, in the case
of a company becoming a subsidiary after that date, the date on
which that company became a subsidiary) by way of revaluation. For
the purposes of this paragraph (h) any increase in the book value
of any fixed asset resulting from its transfer by one member of
the Group to another member of the Group shall be deemed to result
from a writing up of its book value by way of revaluation;
(i) excluding amounts set aside for taxation as at the date of such
balance sheet and making such adjustments as may be appropriate in
respect of any significant additional taxation expected to result
from transactions carried out by any member of the Group after
such date and not reflected in that balance sheet;
(j) deducting all amounts attributable to minority interests in
Subsidiaries;
(k) making such adjustments as may be appropriate in respect of any
variation in the amount of such paid up share capital or any such
reserves after the date of the relevant balance sheet (but so that
no such adjustment shall be made in respect of any variation in
profit and loss account except to the extent of any profit or
loss, calculated on a cumulative basis, recorded in the
consolidated profit and loss account of the Group delivered to the
Beneficiary before the date of this Deed, or under paragraph
10.1.1 in respect of any subsequent period);
(l) making such adjustments as may be appropriate in respect of any
distribution declared, recommended or made by any member of the
Group (otherwise than attributable directly or indirectly to the
Guarantor) out of profits earned up to and including the date of
the latest audited balance sheet of that member of the Group to
the extent that such distribution is not provided for in that
balance sheet;
(m) making such adjustments as may be appropriate in respect of any
variation in the interests of the Guarantor in its Subsidiaries
since the date of the latest published audited consolidated
balance sheet of the Group;
(n) if the calculation is required for the purpose of or in connection
with a transaction under or in connection with which any company
is to become or cease to be a Subsidiary of the Guarantor, making
all such adjustments as would be appropriate if that transaction
had been carried into effect; and
(o) making such adjustments as may be appropriate in the opinion of
the Beneficiary in order that the above amounts are calculated in
accordance with the Original Accounting Principles;
"Charter Earnings" means all moneys whatsoever from time to time payable
by the Charterer to the Beneficiary under or pursuant to the Charter
and/or any moneys payable to the Beneficiary under or pursuant to this
Guarantee and/or any guarantee, security or other assurance given to the
Beneficiary at any time in respect of the Charterer's obligations under
or pursuant to the Charter;
"Guarantor's Account" means the interest bearing Dollar account of the
Charter Guarantor opened or (as the context may require) to be opened
with the Agent (as defined in paragraph 12 below) with account number
24.07.56.150 and includes any sub-accounts thereof and any other account
designated in writing by the Agent to be the Guarantor's Account for the
purposes of this Guarantee;
"Earnings" means all earnings of the Ship payable under or pursuant to
any charters entered into by the Charterer in respect of the employment
of the Ship;
"Encumbrance" means any mortgage, charge (whether fixed or floating),
pledge, lien, hypothecation, assignment, trust arrangement or security
interest or other encumbrance of any kind securing any obligation of any
person or any type of preferential arrangement (including without
limitation title transfer and/or retention arrangements having a similar
effect);
"Excess Cash Flow" means any Earnings of the Ship minus (a) the aggregate
of the Charter Earnings and (b) the operating expenses in relation to the
Ship;
"Finance Lease" means a lease treated as a finance lease pursuant to the
Applicable Accounting Principles.
"Group" means, together, the Guarantor and its Subsidiaries and "member
of the Group" means any of them;
"Net Asset Value" means, at any relevant time, the amount in Dollars
resulting after deducting the Total Debt from the Total Market Value
Adjusted Assets, in either case at such time;
"Original Accounting Principles" means those accounting principles,
standards and practices which were used in the preparation of the
consolidated audited ended and, to the extent that they do not conflict
with those principles, standards and practices, such other accounting
principles, standards and practices as were generally acceptable in the
United States of America on 31 December 2005;
"Subsidiary" of a person means any company or entity directly or
indirectly controlled by such person, and for this purpose "control"
means either the ownership of more than 50% of the voting share capital
(or equivalent rights of ownership) of such company or entity or the
power to direct its policies and management, whether by contract or
otherwise;
"Total Debt" means the aggregate principal amount (including any fixed or
minimum premium payable on final repayment) of:
(a) moneys borrowed or raised by the Guarantor and its Subsidiaries;
(b) bonds, notes, loan stock, debentures, commercial paper or other
debt securities issued by the Guarantor or any of its Subsidiaries
not for the time being beneficially owned by the Guarantor or any
of its Subsidiaries;
(c) sums outstanding under acceptances by the Guarantor or any of its
Subsidiaries or by any bank or acceptance house under acceptance
credits opened on behalf of the Guarantor or any Subsidiary;
(d) deferred indebtedness of the Guarantor or any of its Subsidiaries
for payment of the acquisition or construction price for assets or
services acquired or constructed;
(e) rental payments under Finance Leases;
(f) receivables sold or discounted with a right of recourse to the
Guarantor or any of its Subsidiaries;
(g) the nominal amount of any issued and paid up share capital (other
than equity share capital) of any Subsidiary not beneficially
owned by the Guarantor or another Subsidiary;
(h) preference share capital redeemable prior to the last day of the
period of the Charter;
(i) indebtedness secured by any Encumbrance over all or any part of
the undertaking, property, assets, rights or revenues of the
Guarantor or any of its Subsidiaries irrespective of whether or
not such indebtedness is supported by a personal covenant on the
part of the Guarantor or any of its Subsidiaries;
(j) indebtedness incurred in respect of swaps, forward exchange
contracts, futures or other derivatives;
(k) any other liability arising from a transaction having the
commercial effect of a borrowing or the raising of money;
(l) obligations under guarantees in respect of the obligations of any
other person which, if such person were the Guarantor or a
Subsidiary, would fall within paragraphs (a) to (k) above,
PROVIDED THAT:
(i) moneys owing by the Guarantor to a Subsidiary or by a
Subsidiary to the Guarantor or to another Subsidiary shall
not be taken into account;
(ii) the principal amount of Total Debt deemed to be outstanding
in relation to Finance Leases or hire purchase agreements
shall be the present value of the minimum lease or hire
payments discounted at the interest rate implicit in the
relevant lease or hire purchase agreement; and
"Total Market Value Adjusted Assets" means the aggregate of:
(a) the value (less depreciation computed in accordance with generally
accepted international accounting principles consistently applied)
on a consolidated basis of all tangible fixed assets of the Group,
as stated in the relevant consolidated financial statements of the
Group, but excluding any ships at the relevant time owned by
members of the Group which, for the purposes of such consolidated
financial statements, are included in the consolidated tangible
fixed assets of the Group (for the purposes of paragraphs 10.2 and
10.3, the "Relevant Ships"); and
(b) the aggregate of the market value of the Relevant Ships, as such
market value shall have been most recently determined (as of the
date of the relevant calculation) pursuant to the provisions of
paragraph 10.3 of this Guarantee by means of valuations obtained
by the Beneficiary in accordance with the provisions of paragraph
10.3 of this Guarantee (and not the value of the Relevant Ships as
stated in the relevant consolidated financial statements of the
Group).
10.2.7 All the terms defined in this paragraph 10.2 and used in this Guarantee
are to be determined on a consolidated basis in respect of the Group and
(except as items are expressly included or excluded in the relevant
definition or clause) are used and shall be construed in accordance with
Applicable Accounting Principles and as determined from the latest
consolidated financial statements of the Group delivered to the
Beneficiary pursuant to paragraph 10.1.1.
10.2.8 The compliance of the Guarantor with the covenants set out in paragraphs
10.2.1, 10.2.4 and 10.2.5 shalt be determined on the basis of
calculations made by the Beneficiary at any time by reference to then
latest consolidated financial statements of the Group delivered to the
Beneficiary pursuant to paragraph 10.1.1. For the avoidance of doubt, it
is hereby agreed that the Beneficiary shall be entitled to make such
determinations and/or calculations at any time when, and in relation to
any period in relation to which, the Guarantor shall be obliged to comply
with each of the covenants out in paragraphs 10.2.1, 10.2.4 and 10.2.5
without regard to when any such financial statements are due to be
delivered or have been actually delivered to the Beneficiary pursuant to
paragraph 10.1.
10.2.7 For the purposes of this paragraph 10.2:
(a) no item shall be deducted or credited more than once in any
calculation; and
(b) any amount expressed in a currency other than United States
Dollars shall be converted into United States Dollars in
accordance with Applicable Accounting Principles.
10.3 Valuation of Relevant Ships
10.3.1 Valuations
Each of the Relevant Ships shall, for the purposes of this paragraph 10,
be valued in United States Dollars as and when the Beneficiary shall
require. Each such valuation of a Relevant Ship shall be made by an
independent firm of shipbrokers appointed by the Beneficiary. Such
valuation shall be made without, unless required by the Beneficiary,
physical inspection, and on the basis of a sale for prompt delivery for
cash at arm's length, on normal commercial terms as between a willing
buyer and a willing seller and without taking into account the benefit of
any charterparty or other employment of such Relevant Ship. The value of
each of the Relevant Ships determined in accordance with the provisions
of this paragraph 10.3 shall be binding upon the parties hereto for the
purposes of calculating the Total Market Value Adjusted Assets until such
time as any further such valuations shall be obtained.
10.3.2 Information
The Guarantor undertakes to the Beneficiary to supply to the Beneficiary
and to any such shipbroker such information concerning any Relevant Ship
and its condition as such shipbrokers may reasonably require for the
purpose of making any such valuation.
10.3.3 Costs
All costs in connection with the Beneficiary obtaining any valuation of
each of the Relevant Ships referred to in paragraph 10.3.1 of this
Guarantee shall be borne by the Guarantor.
11 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.
12 The Guarantor may not assign any of its rights or obligations hereunder.
The Beneficiary may assign any of its rights hereunder to Fortis Bank
NV/SA of Montagne de Parc 3, 1000 Brussels, Belgium, acting through its
Athens branch at 000 Xxxxxxx Xxxxxx, 000 00 Xxxxxx, Xxxxxx (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 any such assignment. 13 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.
14 (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.
15 Other than with respect to the Beneficiary, 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 Xxxxx Xxxxxxxxxxxxxx
TOP TANKERS INC.
pursuant to a Power of Attorney
dated 13th June 2006
In the presence of:
/s/ Xxxxx Xxxxx
------------------------------
Witness
Name: Xxxxx Xxxxx
Address: Xxxxxx Xxxx
Occupation: Piraeus
