GUARANTEE
Exhibit
99.7: Operating expenses guarantee agreement
GUARANTEE
This
guarantee (the “Guarantee”) is made on 18th December 2006 by:
MC
Shipping Inc.
hereinafter called “MCX”, a company constituted under Liberian law whose
principal office is at Xxxxxxxx Xxxxx 00 Xxx-xx-xxxxx Xxxx, Xxxxxxx
in
favour
of
”Beteiligungsgesellschaft
LPG Tankerflotte mbH & Co. KG”,
a
partnership organised and existing under the laws of Germany whose registered
office is at Xxxxxxxxx 00, 00000 Xxxxxxx, Xxxxxxx, which is or will become
the
owner (“Owner”) of the MV “Auteuil”, “Cheltenham”, “Coniston”, “Deauville”,
“Longchamp” and “Malvern” (“Vessel” or “Vessels”).
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1
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BACKGROUND
AND DEFINITIONS
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1.1
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The
Owner and Bridge Marine Ltd., 00 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx
(the
“Charterer”), have agreed to enter into a Time Charter for each of the
vessels for a period of 4 years plus Charterers option for a further
1
option 1 year by separate agreements upon terms and conditions therein
contained.
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1.2
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It
is a condition precedent to the agreements of the Owner to enter
into the
terms and conditions therein agreed and attached hereto an Exhibit
1 (the
“Charter” or “Charters”) that MCX agrees to enter into this
Guarantee.
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1.3
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Words
and expressions defined in the Charter shall have the same meaning
when
used in this Guarantee unless otherwise defined in this Guarantee
or the
context otherwise requires.
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1.4
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The
following terms shall have the following meanings when used in this
Guarantee:
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“Business
Days” means a day (other than a Saturday or Sunday) on which banks are open for
business in New York, Rotterdam or Hamburg;
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2
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GUARANTEE
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2.1
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In
consideration of the Owner entering into the Charter, and other good
and
valuable considerations (the receipt and sufficiency whereof MCX
hereby
acknowledges) MCX hereby unconditionally and irrevocably guarantees
to the
Owner the difference between the Full Management Budget (the “Budget”),
attached hereto an Exhibit 1 and the actual Ship Operation Expenses
including Ship Management and ship managers Administration Costs
as stated
in the Profit and Loss account, as approved by the chartered Accountant
of
the Owner (the “Profit and Loss account”) for the years 2006 (period
between actual delivery of the Vessel under the Charter and 31.12.2006),
2007, 2008, 2009 and 2010 (period between 1.1. 2010 and date of fourth
anniversary of delivery of the Vessels under the Charter but excluding
any
operating costs paid by insurers or third parties (the “Guaranteed
Liabilities”).
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The
guarantee of MCX shall be limited to an amount of USD 135 p.d. and shall be
valid and effective for the period of four (4) years after delivery of the
vessel into the Charter and shall be valid and binding irrespective of the
validity of the Charter. To avoid doubt the guarantee does not include
Guarantees on dry dock or special survey costs.
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2.2
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The
guarantee contained in Clause 2.1 is a primary obligation and not
merely a
surety. MCX hereby waives, to the fullest extent permitted by applicable
law, any right, defence or objection of a surety which might otherwise
be
available to it as guarantor of the Guaranteed
Liabilities.
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2.3
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The
obligations of MCX contained in Clause
2.1:
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1
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(a)
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are
in addition to and not in substitution for any other guarantee and/or
indemnity and/or any other security which the Owner may at any time
hold
for the Guaranteed Liabilities ; and
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| (b) |
may
be enforced by the Owner in its discretion without first having recourse
to any other guarantee and/or indemnity or any such security, provided
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(i)
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the
parties agreed on any amount due or
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(ii)
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in
case of a failing agreement between the Parties, damages are subject
of a
final award or final judgement from the competent court nominated
in this
guarantee to be due, owing or payable to the Owner.
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(c)
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The
Owner shall not seek for additional payment from another party, if
the
Guarantor has fulfilled it’s obligations under this
Guarantee.
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| 3 |
NOTICES
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3.1
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Any
notice or other communication under, or in connection with the matters
contemplated by, this Guarantee shall be addressed to the recipient
and
sent to:
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(a)
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in
the case of a communication to MCX
to:
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care
of
MC Shipping XXX
Xxxxx
Pastor Centre
0
Xxx xx
Xxxxxx
XX
00000
Xxxxxx
Monaco
Fax 0000000000000 or via E mail to
XXX@XXXXXXXXXX.XXX
and
in
the case of a fax shall be effective at time of receipt by the sender of a
successful transmission report. All notices or other communication to be given
or made pursuant to this Clause 3.1(a) sent to the Charterer by way of fax
are
also to be confirmed by letter. This letter must be dispatched as soon as
reasonably practicable after transmission of the relevant fax. A communication
given or made by way of fax will not be invalidated if the relevant letter
is
not received by the Charterer.
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(b)
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in
the case of a notice to the Owner
to:
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”Beteiligungsgesellschaft
LPG Tankerflotte mbH & Co. KG”
Xxxxxxxxx
00
00000
Xxxxxxx
Xxxxxxx
fax
number: (00)
00
00 00 0 000
attention: Gesch’ftsleitung
and
shall
be effective at the time of receipt by the sender of a successful transmission
report. All notices or other communication to be given or made pursuant to
this
Clause 3.1(b) sent to the Owner by way of fax are also to be confirmed by
letter. This letter must be dispatched as soon as reasonably practicable after
transmission of the relevant fax. A communication given or made by way of fax
will not be invalidated if the relevant letter is not received by the
Owner.
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LAW
AND JURISDICTION
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4.1
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This
Guarantee shall be governed by, and construed in all respects in
accordance with, the laws of
England.
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4.2
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MCX:
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2
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(a)
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agrees
that the courts of England are to have exclusive jurisdiction to
settle
any disputes which may arise out of or in connection with this Guarantee
and that accordingly any suit, action or proceeding (together,
“Proceedings”) arising out of or in connection with this Guarantee may be
brought in such courts;
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(b)
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irrevocably
waives any objection which it may have now or hereafter to the laying
of
the venue of any Proceedings in any such court as is referred to
in this
Clause 4 and any claim that any such Proceedings have been brought
in an
inconvenient forum;
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(c)
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hereby
irrevocably agrees that any writ, judgment, notice of process or
other
notice in connection with any Proceedings shall be sufficiently and
effectively served on it (i) if delivered to MC Shipping Limited
St Magnus
House 0 Xxxxx Xxxxxx Xxxxxx Xxxxxx XX0X 0XX in the case of any writ,
judgment, notice of process or other notice in connection with Proceedings
in England (and if the aforesaid company (or any successor thereto
as
agent for service of process) for any reason ceases to exist or ceases
to
have an office in England where process may be served, MCX will forthwith
appoint another agent for process with an office in England where
process
may be served and will forthwith notify the Owner thereof) or (ii)
whether
in the case of Proceedings in England or elsewhere, if a copy thereof
is
mailed by registered or certified air mail, postage prepaid, to the
address for the time being for the service of notices on it under
Clause 3
or (iii) in any other manner permitted by
law.
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4.3
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Nothing
contained in this Clause 4 shall limit the right of the Owner to
take
Proceedings against MCX in any other court of competent jurisdiction,
nor
shall the taking of Proceedings in one or more jurisdictions preclude
the
taking of Proceedings in any other jurisdiction, whether concurrently
or
not.
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(i) To
the
extent that MCX may be entitled in any jurisdiction to claim for itself or
its
assets immunity from suit, execution, attachment (whether in aid or execution,
before judgment or otherwise) or legal process or to the extent that in any
such
jurisdiction there may be attributed to it or its assets such immunity (whether
or not claimed) MCX hereby irrevocably agrees not to claim and hereby
irrevocably waives such immunity to the fullest extent permitted by the laws
of
such jurisdiction.
IN
WITNESS WHEREOF this Guarantee has been signed as a deed on behalf of MCX and
the Owner
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SIGNED
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by
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its
duly appointed attorney in fact
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for
and on behalf of
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THE
OWNER
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SIGNED
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by
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its
duly appointed attorney in fact
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for
and on behalf of
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BETEILIGUNGSGESELLSCHAFT
LPG
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)
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TANKERFLOTTE
MBH & CO KG
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)
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