GUARANTY
Exhibit
10.4
GUARANTY,
dated as of March 1, 2010 (as amended, modified or supplemented from time to
time, this “Guaranty”), made by
DHT Holdings, Inc., a company incorporated in the Xxxxxxxx Islands (the “Guarantor”), in favor
of Tanker Management Ltd, a company formed in England (the “Manager”).
RECITALS
WHEREAS,
the Manager and the vessel owning subsidiaries of the Guarantor (the “Owners”) named on
Schedule I, have entered into Ship Management Agreements (as amended from time
to time, the “Ship
Management Agreements”) pursuant to which the Manager has agreed to
provide certain services with respect to the vessels owned by the Owners named
on Schedule I (the “Vessels”);
WHEREAS,
the Owners are subsidiaries of Guarantor; and
WHEREAS,
in order to induce the Manager to continue to provide services pursuant to the
Ship Management Agreements with the Owners, Guarantor desires to execute this
Agreement to guarantee the Owners’ payment and performance obligations under the
Ship Management Agreements.
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 guarantees to the Manager the due and punctual
payment of all obligations and liabilities owing by the Owners under the Ship
Management Agreements and the due performance and compliance by the Owners 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 Owners 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
Owners. The Guarantor also shall pay any and all expenses (including,
without limitation, reasonable attorneys’ fees and expenses) incurred by the
Manager in enforcing its rights under this Guaranty provided that the Manager 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 1 above shall be absolute and
unconditional irrespective of (i) any lack of enforceability against the Owners
of the Guaranteed Obligations, (ii) any change of the time, manner or place of
payment, or any other term, of the Guaranteed Obligations, (iii) the failure,
omission, delay or lack on the part of the Manager to assert any claim or demand
or to enforce any right or remedy against the Guarantor or the Owners, (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 Ship Management Agreements and (vi) any law, regulation or order of
any jurisdiction affecting any term of the Guaranteed Obligations or the
Manager’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 Manager exhaust any
right or take any action against the Owners. 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 Owners are 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 Manager, 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 Owners, the Guarantor shall pay to the Manager
such additional amount as shall be necessary to enable the Manager 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 Manager upon the
bankruptcy, insolvency, reorganization, arrangements, adjustment, composition,
dissolution, liquidation, or the like, of the Owners 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 Owners 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 Ship Management Agreements.
Section
5. Representations and
Warranties of the Guarantor. The Guarantor hereby represents
and warrants to the Manager 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.
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Section
6. Waivers and Amendments;
Non-Contractual Remedies; Preservation of Remedies. This
Guaranty may be amended, superseded, canceled, 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 on 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 same laws and in the same manner as is set forth in the
Ship Management Agreements.
Section
8. Notices. All
notices, requests, demands and other communications under this Guaranty must be
delivered in the same manner as set forth in the Ship Management
Agreements.
Section
9. Counterparts. This
Guaranty may be executed by the parties hereto in counterparts, each of which,
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
10. 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 Manager 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 Manager may assign its rights
hereunder as security to its lenders. Any assignment in violation of
this Section 10 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 (the “Merging Party”) shall
consolidate with or merge with or into, or sell, convey, transfer or lease all
or substantially all of its properties and assets to, another entity, such
transaction shall constitute an assignment, unless the Merging Party remains the
surviving person or, directly or indirectly, the transferee of such properties
and assets, as the case may be, and the Merging Party expressly affirms all of
its obligations under this Guaranty.
Section
11. No Third-Party
Beneficiaries. Nothing in this Guaranty will confer any rights
or benefits upon any person or entity other than the Manager and a successor or
permitted assignee of the Manager.
Section
12. 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
13. 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.
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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.
| DHT HOLDINGS, INC. | |||
|
|
By:
|
/s/ Ole Xxxxx Xxxxxx | |
| Name Ole Xxxxx Xxxxxx | |||
| Title Chief Executive Officer | |||
Accepted
and Agreed to this
1st day
of March, 2010
TANKER
MANAGEMENT, LTD
| By: | /s/ Xxx X. Xxxxxxxx |
| Name: Xxx X. Xxxxxxxx | |
| Title: Director |
4
SCHEDULE
I
|
Owners:
|
Vessel
|
|
|
1.
|
Xxx
Tanker Corporation
|
Overseas
Xxx
|
|
2.
|
Xxxxx
Tanker Corporation
|
Overseas
Xxxxx
|
|
3.
|
Regal
Unity Tanker Corporation
|
Regal
Unity
|
|
4.
|
Xxxxx
Tanker Corporation
|
Overseas
Xxxxx
|
|
5.
|
Sophie
Tanker Corporation
|
Overseas
Sophie
|
|
6.
|
Xxxxxxx
Tanker Corporation
|
Xxxxxxx
|
|
7.
|
Ania
Aframax Corporation
|
Ania
|
5
