Exhibit 4.44
TOP TANKERS INC
Guarantee
14 March 2006
To: Xxxxxx Navigation Co. of 00, Xxxxx Xxxxxx, Xxxxxxxx, Liberia (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. Doubtless (the "Ship") to Falakro Shipping Company Limited (the
"Charterer", which expression includes its successors and assigns)
pursuant to a "Barecon 2001" bareboat charter dated 14 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 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
delivef 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;
(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 31 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 Dollars (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:
(a) deducting any debit balance on such consolidated profit and loss
account;
(b) deducting any amount shown in such consolidated balance sheet in
respect of goodwill (including goodwill arising on consolidation)
and other intangible assets;
(c) 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 (c) 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;
(d) 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;
(e) deducting all amounts attributable to minority interests in
Subsidiaries; (f) 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);
(g) 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;
(h) 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;
(i) 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
(j) 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 financial statements of the Group as at 31
December 2005, and for the year then 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 shall 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
(i) 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) and/or
(ii) Xxxx Capital Investments B.V. of R.01.1601, Coolsingel 93, 3012
AE Rotterdam, The Netherlands ("Xxxx"). The Guarantor hereby agrees
that it will promptly execute an acknowledgement in favour of the
Agent and/or Xxxx 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 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
Xxxxxxx Xxxxx
EXECUTED as a DEED BY
for and on behalf of
TOP TANKERS INC.
Pursuant to a Power of Attorney
dated 8 March 2006
In the presence of:
Witness: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Address:
Occupation: Trainee Solicitor - Xxxxxx Xxxx
