Exhibit 4.46
1. Shipbroker
Not applicable
2. Place and date
Piraeus, 14th March 2006
3. Owners/Place of business (Cl. 1)
COMOROS SHIPPING LIMITED of Cyprus
4. Bareboat Charterers/Place of business (Cl. 1)
PAGEON SHIPPING COMPANY LIMITED of Cyprus
5. Vessel's name, call sign and flag (Cl. 1 and 3)
M/T "VANGUARD", P30F4, Cyprus
6. Type of Vessel
Motor Tanker
7. GT/NT
2822313568
8. When/Where built
1992 Halla Engineering & Heavy Industries Co.,
Ltd., Inchon,
Korea
9. Total DWT (abt.) in metric tons on summer freeboard
47059
10. Classification Society (CI, 3)
Det Norske Veritas
11. Date of last special survey by the Vessel's classification society
February 2002
12. Further particulars of Vessel (also indicate minimum number of months'
validity of class certificates agreed acc. to Cl. 3)
13. Port or Place of delivery (Cl. 3)
Worldwide within IWL
14. Time for delivery (Cl. 4)
See Clause 4
15. Cancelling date (Cl. 5)
30th March 2006
16. Port or Place of redelivery (CI. 15)
EuroMed, Gibraltar/Skew range, Americas excluding USA,
AG/Japan range, in Charterers' option but in any event within IWL
17. No. of months' validity class certificates upon redelivery (Cl. 15)
Minimum six (6) months without extensions
18. Running days' notice if other than stated in Cl. 4
19. Frequency of dry-docking (Cl. 10(g))
20. Trading limits (Cl. 6)
Worldwide trading, but always within the Institute Warranty Limit (IWL)
21. Charter period (Cl. 2)
Five (5) years with Owners' option to extend this period by three (3)
months in accordance with Clause 328
22. Charter hire (Cl. 11)
USD 396,000 per month
23. New class and other safety requirements (state percentage of Vessers
insurance value acc. to Box 29)(Cl. 10(a)(ii))
24. Rate of interest payable acc. to Cl. 11 (f) and, if applicable, acc. to
PART IV
25. Currency and method of payment (Cl. 11)
United States Dollars (USD) in same day funds by SWIFT or by other
tested key electronic money transfer
26. Place of payment also state beneficiary and bank account (CI, 11)
Rotterdam, The Netherlands
Owners' bank account nr.
24.07.56.207 with FORTIS BANK
(NEDERLAND) N.V.
27. Bank guarantee/bond (sum and place) (Cl. 24) (optional)
See Clause 32A and 22(b)
28. Mortgage(s), if any (state whether 12(1). or Da applies; if 12(b)
applies state date of Financial Instrument and name of
Mortgagee(s)/Place of business) (Cl. 12)
First Quadripartite Agreement and First Mortgage in favour of the First
Mortgagee.
Second Quadripartite Agreement and Second Mortgage in favour of the
Second Mortgagee.
Third priority mortgage in favour of Charterers as security for the
Seller's Credit.
29. Insurance (hull and machinery and war risks) (state value acc. to Cl.
13(f) or, if applicable, acc. to Cl. 14(k)) (also state if Cl. 14
apples)
Clause 14 does not apply. As regards the insured amount for
Clause 13(f) purposes, see Clause 34
30. Additional insurance cover, if any, for Owners' account limited to (Cl.
13(b) or if applicable Cl. 14(o))
Not applicable
31. Additional insurance cover, If any, for Charterers' account limited to
(Cl. 13(b) or if applicable Cl. 14(a))
Not applicable
32. Latent defects (only to be filled in If period other than stated in Cl.
3)
Not applicable
33. Brokerage commission and to whom payable (Cl. 27)
Not applicable
34. Grace period (stale number of dear banking days) (Cl. 28)
Three (3)
35. Dispute Resolution (state 30(a), 30(b) or 30(c); if 30(c) agreed Place
of Arbitration must be stated (Cl. 30)
30 (a)
36. War cancellation (indicate countries agreed) (Cl. 26(f))
Not applicable
37. Newbuildng Vessel (Indicate with 'yes' or 'no' whether PART III
applies) (optional)
Not applicable
38. Name and place of Builders (only to be filled in If PART III applies)
Not applicable
39. Vessel's Yard Building No. (only to be filled in if PART III applies)
Not applicable
40. Date of Building Contract (only to be filled in if PART III applies)
Not applicable
41. Liquidated damages and costs shall accrue to (state party acc. to Cl 1)
a) Not applicable
b)
c)
42. Hire/Purchase agreement (indicate with 'yes' or 'no' whether PART IV
applies) (optional)
Not applicable
43. Bareboat Charter Registry (indicate with "yes' or 'no' whether PART V
applies) (optional)
Not applicable
44. Flag and Country of the Bareboat Charter Registry (only to be filled in
if PART V applies)
Not applicable
45. Country of the Underlying Registry (only to be filled In If PART V
apples)
Not applicable -
46. Number of additional dauses covering special provisions, if agreed
Clauses number 32, 33 and 34.
PREAMBLE - It is mutually agreed that this Contract shall be performed subject
to the conditions contained in this Charter which shall include PART I and PART
II. in the event of a conflict of conditions, the provisions of PART I shall
prevail over those of PART II to the extent of such conflict but no further. It
is further mutually agreed that PART III and/or PART IV and/or PART V shall only
apply and only form part of this Charter if expressly agreed and stated in Boxes
37, 42 and la. If PART III and/or PART IV and/or PART V apply, It is further
agreed that in the event of a conflict of conditions, the provisions of PART I
and PART II shall prevail over those of PART III and/or PART IV nd/or PART V to
the extent of such conflict but no further.
Signature (Owners) Signature (Charterers)
/s/ Alexandra Tatagia /s/ Anthony Pan
- -------------------------------- ---------------------------------
Alexandra Tatagia Anthony Pan
Attorney-in-fact Attorney-in-fact
PART II
"BARECON 2001" Standard Bareboat Charter
1. Definitions
In this Charter, the following terms shall have the meanings hereby
assigned to them:
"The Owners" shall mean the party identified in Box 3; "The Charterers"
shall mean the party identified in Box 4; "The Vessel" shall mean the
vessel named in Box 5 and with particulars as stated in Boxes 6 to 12.
See also Clause 33.
2. Charter Period
In consideration of the hire detailed in Box 22, the Owners have agreed
to let and the Charterers have agreed to hire the Vessel for the period
stated in 13ox 21 ("The Charter Period").
3. Delivery
(not applicable when Part Ill applies, as indicated in Pox 37)
(a) The Vessel shall be delivered under this Charter by the Owners
to the Charterers on an "as is-where is" basis (and, in any
event, as delivered under the MOA as defined in Clause 33 by
the Charterers as sellers to the Owners as buyers) and without
any warranty whatsoever by the Owners. Owners shall also not
be liable for any latent defects.
(b) The delivery of the Vessel by the Owners and the taking over
of the Vessel by the Charterers shall constitute a full
performance by the Owners of all the Owners' obligations under
this Clause 3.
4. Time for Delivery
(not applicable when Part applies, as indicated in Box 37)
The delivery of the Vessel under this Charter shall be made
simultaneously with the delivery under the MOA.
5. Cancelling
(not applicable when Part III applies, as indicated in Box 37)
(a) This Charter shall be cancelled in the event the MOA is
cancelled.. Any extension of the cancelling date of the MOA
shall, unless otherwise specifically agreed, constitute a
similar extension of the cancelling date of this Charter.
(b) Paragraph deleted
(c) Cancellation under this Clause 5 shall be without prejudice to
any claim a party hereto may otherwise have on the other party
Owners-under this Charter.
6. Trading Restrictions
The Vessel shall be employed in lawful trades for the carriage of
suitable lawful merchandise within the trading limits indicated in Box
20.
The Charterers undertake not to employ the Vessel or suffer the Vessel
to be employed otherwise than in conformity with the terms of the
contracts of insurance (including any warranties expressed or implied
therein) without first obtaining the specific consent of the insurers
to such employment and complying with such requirements as to extra
premium or otherwise as the insurers may prescribe.
The Charterers also undertake not to employ the Vessel or suffer her
employment in any trade or business which is forbidden by the law of
any country to which the Vessel may sail or is otherwise illicit or in
carrying illicit or prohibited goods or in any manner whatsoever which
may render her liable to condemnation, destruction, seizure or
confiscation.
Notwithstanding any other provisions contained in this Charter it is
agreed that nuclear fuels or radioactive products or waste are
specifically excluded from the cargo permitted to be loaded or carried
under this Charter. This exclusion does not apply to radio-isotopes
used or intended to be used for any industrial, commercial,
agricultural, medical or scientific purposes provided the Owners' prior
approval has been obtained to loading thereof.
Always provided that nothing permitted under this Clause shall in any
way violate the terms of the Financial instruments, as same are defined
in Clause 33.
7. Surveys on Delivery and Redelivery
(not applicable when Part Ill applies, as indicated in Box 37)
The Owners and the Charterers shall each appoint surveyors for the
purpose of determining and agreeing in writing the condition of the
Vessel at the time of redelivery hereunder. The Charterers shall bear
all expenses of the Off-hire Survey including loss of time, if a the
daily equivalent to the rate of hire or pro rata thereof.
8. Inspection
The Owners shall have the right at any time after giving reasonable
notice to the Charterers to inspect or survey the Vessel or instruct a
duly authorised surveyor to carry out such survey on their behalf:
(a) to ascertain the condition of the Vessel and satisfy
themselves that the Vessel is being properly repaired and
maintained. The costs and fees for such inspection or survey
shall be paid by the Owners unless the Vessel Is found to
require repairs or maintenance in order to achieve the
condition so provided;
(b) in dry-dock if the Charterers have not dry-docked l4her in
accordance with Clause 10(g). The costs and fees for such
inspection or survey shall be paid by the Charterers; and
(c) for any other commercial reason they consider necessary
(provided it does not unduly interfere with the commercial
operation of the Vessel). The costs and fees for such
inspection and survey shall be paid by the Owners.
All time used in respect of inspection, survey or repairs shall be for
the Charterers' account and form part of the Charter Period.
The Charterers shall also permit the Owners to inspect the Vessel's log
books whenever requested and shall whenever required by the Owners
furnish them with full information regarding any casualties or other
accidents or damage to the Vessel.
All the above are without prejudice to the rights of inspection which
the Mortgagees (as defined in Clause 33) have under the relevant terms
of the Financial instruments; the Charterers shall at all Imes allow
the respective Mortgagee to exercise same.
9. Inventories, Oil and Stores
A complete inventory of the Vessel's entire equipment, outfit including
spare parts, appliances and of all consumable stores on board the
Vessel shall be made by the Charterers in conjunction with the Owners
on delivery and again on redelivery of the Vessel. The Owners shall at
the time of redelivery take over and pay only for all bunkers and
lubricating oils, in the Vessel at the then current market prices at
the ports of redelivery. The Charterers shall ensure that all spare
parts listed in the inventory and used during the Charter Period are
replaced at their expense prior to redelivery of the Vessel. No payment
shall be made by the Owners on redelivery for provisions, paints,
ropes, spare parts, etc.; they shall all become Owners' property on
redelivery without any payment.
10. Maintenance and Operation
(a) (i) Maintenance and Repairs - During the Charter Period the
Vessel shall be in the full possession and at the absolute
disposal for all permissible purposes of the Charterers and
under their complete control in every respect, always subject
to the terms and conditions of this Charter. The Charterers
shall maintain the Vessel, her machinery, boilers,
appurtenances and Spare parts in a good state of repair, in
efficient operating condition and in accordance with good
commercial maintenance practice and, at their own expense,
they shall at all times keep the Vessel's Class fully up to
date with the Classification Society indicated in Box 10 and
maintain all other necessary certificates in force at aft
times.
(ii) New Class and Other Safety Requirements - In the event of any
improvement, structural changes or new equipment becoming
necessary for the continued operation of the Vessel by reason
of new class requirements or by compulsory legislation costing
(excluding the Charterers' loss of time) more than the
percentage stated in Box 23, or if Box 23, is left blank, 5
per cent, of the Vessel's insurance value as stated in Box 29,
then the extent, if any, to which the rate of hire shall be
varied and the ratio in which the cost of compliance shall be
shared between the parties concerned in order to achieve a
reasonable distribution thereof as between the Owners and the
Charterers having regard, inter alla, to the length of the
period remaining under this Charter shall, in the absence of
agreement, be referred to the dispute resolution method agreed
in Clause 30. In any event the Charterers are obliged to
redeliver the Vessel in full compliance with all the
requirements and regulations of MT SOLAS and/or IMO for
worldwide trading applicable or provided for at the time of
redelivery, including also any U.S. Coast Guard requirements
for the trading of the Vessel in U.S.A. territories.
(iii) Financial Security - The Charterers shall maintain financial
security or responsibility in respect of third party
liabilities as required by any government, Including federal,
state or municipal or other division or authority thereof, to
enable the Vessel, without penalty or charge, lawfully to
enter, remain at, or leave any port, place, territorial or
contiguous waters of any country, state or municipality in
performance of this Charter without any delay. This obligation
shall apply whether or not such requirements have been
lawfully imposed by such government or division or authority
thereof.
The Charterers shall make and maintain all arrangements by bond or
otherwise as may be necessary to satisfy such requirements at the
Charterers' sole expense and the Charterers shall fully indemnify the
Owners against all consequences whatsoever (including loss of time) for
any failure or inability to do so.
(b) Operation of the Vessel - The Charterers shall at their own
expense and by their own procurement man, victual, navigate,
operate, supply, fuel and, whenever required, repair the
Vessel during the Charter Period and they shall pay all
charges and expenses of every kind and nature whatsoever
incidental to their use and operation of the Vessel under this
Charter, including any foreign general municipality and/or
state taxes. However the Owners shall pay for the Vessel's
annual tonnage taxes due to the flag State. The Master,
officers and crew of the Vessel shall be the servants of the
Charterers for all purposes whatsoever, even if for any reason
appointed by the Owners, and shall in any event be promptly
and fully paid by the Charterers. Charterers shall comply with
the regulations regarding officers and crew in force in the
country of the Vessel's flag or any other applicable law.
(c) The Charterers shall keep the Owners and the Mortgagee advised
of the intended employment, planned dry-docking and major
repairs of the Vessel, as reasonably required.
(d) Flag and Name of Vessel - During the Charter Period, the
Charterers shall have the liberty to paint the Vessel in their
own colours, install and display their funnel insignia and fly
their own house flag. The Charterers shall also have the
liberty, however always with the Owners' prior consent, which
shall not be unreasonably withheld, to change the flag and/or
the name of the Vessel during the Charter Period, if this
becomes necessary for the proper trading of the Vessel;
however in any such case the Charterers shall fully cover all
the expenses relevant to such change including, but without
limitation, the financial, legal and other costs relevant to
the registration of such changes and the drafting, execution
and/or registration of any documentation relevant to the
Financial Instruments and/or to any other transactions
required by the Mortgagees in view of any such change.
Provided always that no such change of name or flag shall be
allowed without the prior written consent of the Mortgagees.
Painting and re-painting, instalment and re-instalment,
registration and re-registration, if required by the Owners,
shall be at the Charterers' expense and time.
(e) Chancres to the Vessel - Subject to Clause 10(a)(ii), the
Charterers shall make no structural changes in the Vessel or
changes in the machinery, boilers, appurtenances or spare
parts thereof without in each instance first securing the
Owners' approval thereof. If the Owners so agree, the
Charterers shall, if the Owners so require, restore the Vessel
to its former condition before the termination of this
Charter.
(f) Use of the Vessel's-Outfit, Equipment and Appliances - The
Charterers shall have the use of all outfit, equipment, and
appliances on board the Vessel at the time of delivery,
provided the same or their substantial equivalent shall be
returned to the Owners on redelivery in the same good order
and condition as when received, ordinary wear and tear
excepted. The Charterers shall from time to time during the
Charter Period replace such items of equipment as shall be so
damaged or worn as to be unfit for use. The Charterers are to
procure that all repairs to or replacement of any damaged,
worn or lost parts or equipment be effected in such manner
(both as regards workmanship and quality of materials) as not
to diminish the value of the Vessel. The Charterers have the
right to fit additional equipment at their expense and risk
but the Charterers shall remove such equipment at the end of
the period if requested by the Owners. Any equipment including
radio equipment on hire on the Vessel at the time of delivery
shall be kept and maintained by the Charterers and the
Charterers shall assume the obligations and liabilities of the
Owners under any lease contracts in connection therewith and
shall reimburse the Owners for all expenses Incurred in
connection therewith, also for any new equipment required in
order to comply with radio regulations.
(g) Periodical Dry-Docking - The Charterers shall dry-dock the
Vessel and clean and paint her underwater parts whenever the
same may be necessary, but not less than once during the
period stated in Box 19 or if Box 19 has been left blank,
thirty six (36) calendar months after delivery or such other
period as may be required by the Classification Society or
flag State.
(i) Management - The commercial, technical and/or operational
management of the Vessel shall be carried out during the
Charter Period by TOP TANKERS MANAGEMENT INC. or any other
first class company acceptable to the Owners and the
Mortgagees. Such management to be cost free for the Owners,
who shall not be liable to any extent by reason of having
approved such managers. In addition such approval by the
Owners shall in no way constitute any limitation, discharge or
waiver of any of Charterers' obligations or liabilities under
and pursuant to this Charter.
(j) Compliance - The Charterers shall comply with any and all
requirements under the International Management Code for the
Safe Operation of Ships and for Pollution Prevention adopted
by the international Maritime Organization and any applicable
law.
(k) Financial Statements - The Charterers shall submit to the
Owners and the Mortgagees their audited annual accounts as
well as those of the Charter Guarantor (as the latter is
defined in Clause 33), within 180 days of each year end and
semiannual management accounts within 90 days of the half-year
end.
(l) Survey Reports - The Charterers shall regularly supply the
Owners with the Classification survey reports, including but
not limited the annual survey and follow up reports, all
showing, among others, that any recommendation has been
promptly and timely cleared at the Charterers' time and
expense. The Charterers undertake to keep the condition of the
Vessel and all her certificates in the best possible condition
and standards for a vessel of the type and age of the Vessel
and in any event to maintain the Vessel always in full
compliance with the highest/strictest requirements of the
Vessel's Classification Society, her flag State and all other
applicable rules and/or requirements throughout the Charter
Period. Without prejudice to the generality of the foregoing
the coatings of the ballast tanks of the' - Vessel must be
maintained by the Charterers in accordance with the Vessel's
highest/strictest Classification standards throughout the
duration of the Charter Period inclusive of the time of
redelivery. Without prejudice to the above and notwithstanding
anything to the contrary herein, the Charterers shall, not
later than her next special survey, at their own time and
expense upgrade the coatings of all the Vessel's ballast tanks
so as to bring them up to the highest Classification standards
and described by the latter as being in "good" condition.
(m) Reporting and Owners' Representative -Throughout the duration
of this Charter the Charterers shall keep the Owners closely
Informed about the Vessel's position and itinerary as well as
the cargo carried on board and the Vessel's schedule, by
providing such information in writing every fifteen (15)
running days. The Owners shall have the right to place one
representative on board the Vessel who will travel with the
Vessel and have free access to communicate with the Owners.
The latter shall pay for the relevant communication expenses
but will not be charged for the victualling of their
representative which shall be provided without charge. The
representative shall not have the right to interfere with the
operation of the Vessel, but shall have free access to all
parts thereof and to all Vessel's log books.
11. Hire
(a) The Charterers shall pay hire due to the Owners punctually in
accordance with the terms of this Charter In respect of which
time shall be of the essence.
(b) The Charterers shall pay to the Owners for the hire of the
Vessel on a monthly basis a lump sum in the amount indicated
in Box 22 which shall be payable not later than every thirty
(30) running days in advance, the first lump sum being payable
on the date and hour of the Vessel's delivery to the
Charterers. Hire shall be paid continuously throughout the
Charter Period.
(c) Payment of hire shall be made in cash without discount in the
currency and in the manner indicated in Box 25 and at the
place mentioned in )Box 26. Hire shall always be punctually
paid free and clear of any right of set-off, discount,
reduction or delay whatsoever.
(d) Final payment of hire, if for a period of less than thirty
(30) running days, shall be calculated proportionally
according to the number of days and hours remaining before
redelivery and advance payment to be effected accordingly.
(e) Notwithstanding whether the Vessel be lost or missing, hire
shall be fully paid by the Charterers to the Owners as
provided in Clause 32E hereunder.
(f) Any delay in payment of hire shall entitle the Owners to
interest at the rate per annum as agreed in Box 24. If Box 24
has not been filled in, the three months Interbank offered
rate in London (LIBOR or its successor) for the currency
stated in Box 25, as quoted by the British Bankers'
Association (BBA) on the date when the hire fell due,
increased by 2 per cent., shall apply.
(g) Payment of interest due under sub-clause 11(f) shall be made
immediately irrespective of whether the Owners have submitted
their relevant interest invoice to the Charterers.
(h) If at any time the Charterers are required to make any
deduction or withholding in respect of any kind of taxes from
any payment due under this Charter for the account of the
Owners, the sum due from the Charterers in respect of such
payment shall be increased to the extent necessary to ensure
that, after the making of such deduction or withholding, the
Owners receive on the due date for such payment (and retain,
free from any liability in respect of such deduction or
withholding), a net sum equal to the sum which they would have
received had no such reduction or withholding been required to
be made and the Charterers shall fully indemnify the Owners
against any losses or costs incurred by them by reason of any
failure of the Charterers 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 Charterers shall
promptly deliver to the Owners any receipts, certificates or
other proof evidencing the amounts (if any) paid or payable in
respect of any deduction or withholding as aforesaid.
12. Mortgages
(only to apply if Box 28 has been appropriately filled in)
*)(a) paragraph deleted
*)(b) The Vessel chartered under this Charter is subject to the
Financial Instruments and the mortgages, as same appear in Box
28. The Charterers undertake to comply, and provide such
information and documents to enable the Owners to comply, with
all such instructions or directions in regard to the
employment, insurances, operation, repairs and maintenance of
the Vessel as laid down in the Financial Instruments or as may
be directed from time to time during the currency of the
Charter by the Mortgagee or any : of them in conformity with
the Financial Instruments. The Charterers confirm that, for
this purpose, they have acquainted themselves with all
relevant terms, conditions and provisions of the Financial
Instruments and agree to acknowledge this in writing in any
form that may be required by the Mortgagee.
*) (Optional, Clauses 12(a) and 12(b) are alternatives; indicate
alternative agreed in Box 28).
13. Insurance and Repairs
(a) Throughout the Charter Period the Vessel shall be kept insured
by the Charterers at their expense against hull and machinery,
war and Protection and Indemnity risks (and any risks against
which it is compulsory to Insure for the operation of the
Vessel, including maintaining financial security in accordance
with sub-clause 10(a)(iii)) with first class underwriters and
P&I Clubs and in such form as the Owners shall in writing
approve, which approval shall not be un-reasonably withheld.
The Charterers shall also at their expense take out any other
insurance which the Mortgagees may reasonably require. All
such insurances shall be arranged by the Charterers to protect
the Interests of both the Owners and the Charterers, and the
Charterers shall be at liberty to protect under such
insurances the interest of any managers they may appropriately
appoint. The relevant insurance policies shall cover the
Owners and the Charterers according to their respective
interests. Upon the request of a Mortgagee, the Charterers
shall arrange that such Mortgagee is named as a co-assured in
any of the above insurances that the said Mortgagee has to be
named as such. In addition, throughout the Charter Period, the
Charterers shall pay to the First Mortgagee and the Second
Mortgagee the cost (in the amount to be conclusively certified
by the First Mortgagee and the Second Mortgagee in writing) of
any mortgagee's interest insurance-including mortgagee's
additional perils (all P&l risks) coverage-which the
Mortgagees or either of them may from time to time effect In
respect of the Vessel upon such terms and in such amounts as
the Mortgagees shall deem desirable. The Mortgagees shall have
the right to enforce the benefit of this Clause by taking
direct action against the Charterers in seeking to get paid or
to recover the payment of any monies payable to them
hereunder.
Subject to the provisions of the Financial Instruments and the
approval of the Owners and the insurers, the Charterers shall
effect all insured repairs and shall undertake settlement and
reimbursement from the insurers of all costs in connection
with such repairs as well as insured charges, expenses and
liabilities to the extent of coverage under the insurances
herein provided for. The insurances shall not be subject to
any deduction, franchise or any other restrictions of similar
effect. The Charterers also to remain responsible for and to
effect repairs and settlement of costs and expenses incurred
thereby in respect of all other repairs not covered by the
insurances and/or not exceeding any possible franchise(s) or
deductibles provided for in the insurances. All time used for
any repairs, whether under the provisions of this sub-clause
13(a) or otherwise howsoever including any deviation, shall be
for the Charterers' account.
(b) Paragraph deleted
(c) The Charterers shall upon the request of the Owners, provide
information and promptly execute such documents as may be
required to enable the Owners to comply with the insurance
provisions of the Financial Instruments.
(d) Subject to the provisions of the Financial Instruments should
the Vessel become an actual, constructive, compromised or
agreed total loss under the insurances required under
sub-clause 13(a), all insurance payments for such loss shall
be paid to the First Mortgagees or, as the case may be, the
Second Mortgagees who shall distribute the moneys In
accordance with the relevant Financial Instruments. The
Charterers undertake to notify the Owners and the Mortgagee of
any occurrences in consequence of which the Vessel is likely
to become a total loss as defined in this Clause and of all
other occurrences as required under the Financial Instruments.
(e) Subject to the Financial Instruments, the Owners shall upon
the request of the Charterers, promptly execute such documents
as may be required to enable the Charterers to abandon the
Vessel to insurers and claim a constructive total loss.
(f) For the purpose of the insurance coverage of each insurance
the insured amount shall be the sum indicated in Clause 34.
14. Paragraphs deleted
15. Redelivery
At the expiration of the Charter Period the Vessel shall be redelivered
by the Charterers to the Owners at a freely accessible, safe and
Ice-free port or place as indicated in Box 16 in such ready-safe berth
or anchorage as the Owners may direct. The Charterers shall give the
Owners not less than thirty (30) running days' preliminary notice of
expected date, range of ports of redelivery or port or place of
redelivery and not less than fourteen (14) running days' definite
notice of expected date and port or place of redelivery. Any changes
thereafter In the Vessel's position shall be notified immediately to
the Owners.
The Charterers warrant that they will not permit the Vessel to commence
a voyage (including any preceding ballast voyage) which cannot
reasonably be expected to be completed in time to allow redelivery of
the Vessel within the Charter Period or on the date of a sale of the
Vessel In accordance with Clause 22 at the place as directed by the
Owners. Notwithstanding the above, should the Charterers fail to
redeliver the Vessel within T-the Charter Period, the Charterers shall
pay the daily equivalent to the rate of hire stated in Pox 22 plus 10
percent or to the market rate, whichever is the higher, for the number
of days by which the Charter Period or the date of sale is exceeded. In
the latter case the Charterers shall also be liable to reimburse the
Owners any further damages and/or losses which the latter may suffer as
a result thereof. All other terms, conditions and provisions of this
Charter shall continue to apply.
Subject to the provisions of Clause 10, the Vessel shall be redelivered
to the Owners in the same or as good structure, state, condition and
class as that in which she was delivered, in any event free of any and
all Class conditions and/or recommendations, fair wear and tear not
affecting class excepted. On redelivery the Vessel shall have been
dry-docked as per Class requirements or as otherwise may be appropriate
or necessary. The Vessel upon redelivery shall have all her survey
cycles up to date and all her trading, national, international and
class certificates clean, valid and unextended for at least the number
of months agreed in Box 17.
16. Non-Lien
The Charterers will not suffer, nor permit to be continued, any lien or
encumbrance incurred by them or their agents, which might have priority
over the title and interest of the Owners in the Vessel. The Charterers
further agree to fasten to the Vessel in a conspicuous place and to
keep so fastened during the Charter Period a-notices reading as
follows:
(a) "This Vessel is the property of (name of Owners). It is under
charter to IDI SHIPPING COMPANY LIMITED of Liberia and by the
terms of the Charter Party neither the Charterers nor the
Master have any right, power or authority to create, incur or
permit to be imposed on the Vessel any lien whatsoever."
(b) "NOTICE OF MORTGAGE - This Vessel is subject to a first
priority mortgage and deed of covenant in favour of FORTIS
BANK (NEDERLAND) N.V. of Coolsingel 93, 3012AE, Rotterdam, the
Netherlands. Under the said mortgage, neither the Owners nor
any charterer nor the Master of this Vessel has any right,
power or authority to create, incur or permit to be imposed
upon this Vessel any commitments or encumbrances whatsoever
other than for crew's wages and salvage."
(c) "NOTICE OF SECOND MORTGAGE - This Vessel is subject to a
second priority mortgage and deed of covenant in favour of
MAAS CAPITAL INVESTMENTS B.V. of Coolsingel 93, 3012AE,
Rotterdam, The Netherlands. Under the said mortgage, neither
the Owners nor any charterer nor the Master of the Vessel has
any right, power or authority to create, incur or permit to be
imposed upon this Vessel any commitments or encumbrances
whatsoever other than for crew's wages and salvage."
Furthermore, the Charterers shall throughout the duration of this
Charter procure that all their orders for any kinds of supplies
(including but not limited to bunkers and lubolls) for the Vessel are
appropriately marked so as to warn all suppliers In advance that such
supplies are exclusively provided to and payable by the Charterers, the
suppliers not having any right of lien or suit against the Vessel
and/or the Owners. All delivery receipts for such supplies shall also
be appropriately marked by the Charterers before the supplies are
delivered to the Vessel.
17. Indemnity
(a) The Charterers shall fully indemnify the Owners, the
Mortgagees and their respective successors, assigns,
directors, shareholders, officers, servants and/or agents
(collectively "the Indemnified Parties") from and against any
loss, damage, claim, cost and/-or expense incurred by them or
any of them arising out of or in relation to the operation of
the Vessel by the Charterers (including but without
limitation, costs of operating and maintaining the Vessel,
environmental claim or any claim based on environmental laws),
and against any lien of whatsoever nature arising out of an
event occurring during the Charter Period. If the Vessel be
arrested or otherwise detained by reason of claims or liens
arising out of or during her operation hereunder by the
Charterers, the Charterers' shall at their own expense take
all reasonable steps to secure that within a reasonable time
the Vessel is released, including the provision of bail.
Without prejudice to the generality of the foregoing, the Charterers
agree to fully indemnify the Owners the Indemnified Parties against all
consequences or liabilities arising from the Master, officers or agents
signing Bills of Lading or other documents.
(b) If the Vessel be arrested or otherwise detained by reason of a
claim or claims for which the Owners are exclusively liable
hereunder, the Owners shall at their own expense take all
reasonable steps to secure that within a reasonable time the
Vessel is released, including the provision of bail.
In such circumstances the Owners shall fully indemnify the
Charterers against any loss, damage or expense incurred by the
Charterers (including hire paid under this Charter) as a
direct consequence of such arrest or detention.
18. Lien
The Owners to have a lien upon all cargoes, sub-hires and sub-freights
belonging or due to the Charterers or any sub-charterers and any Bill
of Lading freight for all claims under this Charter, provided however
that any such liens will be subordinate to any security Interest the
Mortgagees may have over the same property.
19. Salvage
All salvage and towage performed by the Vessel shall be for the
Charterers' benefit and the cost of repairing damage occasioned thereby
shall be borne by the Charterers.
20. Wreck Removal
In the event of the Vessel becoming a wreck or obstruction to
navigation the Charterers shall fully indemnify the Owners or any other
Indemnified Party against any sums whatsoever which the Owners or any
other Indemnified Party may become liable to pay and may pay in
consequence of the Vessel becoming a wreck or obstruction to
navigation.
21. General Average
The Owners shall not contribute to General Average.
22. Assignment, Sub-Charter and Sale
(a) The Charterers shall not assign this Charter nor sub-charter
the Vessel on a bareboat basis except with the prior consent
in writing of the Owners and the Mortgagees, in their absolute
discretion-which-span net-be-wireasenably4vithheldr and
subject to such terms and conditions as the Owners and the
Mortgagees shall approve.
(b) The Owners may sell the Vessel during the currency of this
Charter subject to the buyer accepting an assignment of this
Charter or entering into a reasonable novation agreement, and
subject to any approvals required by the Mortgagees pursuant
to the Financial Instruments. In case of such sale the
Charterers shall be obliged to delete the mortgage in their
favour stated in Box 28 and to provide to the buyers of the
Vessel a performance guarantee of all Charterers' obligations
hereunder by way of a first class bank guarantee acceptable to
the buyer and in the amount of USD 2,610,000.
23. Contracts of Carriage
*)(a) The Charterers are to procure that all documents issued during
the Charter Period evidencing the terms and conditions agreed
in respect of carriage of goods shall contain a paramount
clause incorporating any legislation relating to carrier's
liability for cargo Compulsorily applicable in the trade; If
no such legislation exists, the documents shall incorporate
the Hague-Visby Rules. The documents shall also contain the
New Jason Clause and the Both-to-Blame Collision Clause.
*)(b) Paragraph deleted
*) Delete as applicable.
24. Paragraph deleted
25. Requisition/Acquisition
(a) Without prejudice to Clause 32E in the event of the
Requisition for Hire of the Vessel by any governmental or
other competent authority (hereinafter referred to as
"Requisition for Hire") irrespective of the date during the
Charter Period when "Requisition for Hire" may occur and
irrespective of the length thereof and whether or not it be
for an indefinite or a limited period of time, and
irrespective of whether it may or will remain in force for the
remainder of the Charter Period, this Charter shall not be
deemed thereby or thereupon to be frustrated or otherwise
terminated and the Charterers shall continue to pay the
stipulated hire in the manner provided by this Charter until
the time when the Charter would have terminated pursuant to
any of the provisions hereof.
(b) Without prejudice to Clause 32E in the event of the Owners
being deprived of their ownership in the Vessel by any
Compulsory Acquisition of the Vessel or requisition for title
by any governmental or other competent authority (hereinafter
referred to as "Compulsory Acquisition"), then, irrespective
of the date during the Charter Period when "Compulsory
Acquisition' may occur, this Charter shall not be deemed
thereby or thereupon to be frustrated or otherwise terminated
and the Charterers shall continue to pay the stipulated hire
until the time when the Charter would have been terminated
pursuant to any of the provisions hereof.
26. War
(a) For the purpose of this Clause, the words 'War Risks' shall
include any war (whether actual or threatened), act of war,
civil war, hostilities, revolution, rebellion, civil
commotion, warlike operations, the laying of mines (whether
actual or reported), acts of piracy, acts of terrorists, acts
of hostility or malicious damage, blockades (whether imposed
against all vessels or imposed selectively against vessels of
certain flags or. ownership, or against certain cargoes or
crews or otherwise howsoever), by any person, body, terrorist
or political group, or the Government of any state whatsoever,
which may be dangerous or are likely to be or to become
dangerous to the Vessel, her cargo, crew or other persons on
board the Vessel.
(b) The Vessel, unless the express written consent of the Owners
be first obtained, shall not continue to or go through any
port, place, area or zone (whether of land or sea), or any
waterway or canal, where it reasonably appears that the
Vessel, her cargo, crew or other persons on board the Vessel,
in the reasonable judgement of the Owners, may be, or are
likely to be, exposed to War Risks. Should the Vessel be
within any such place as aforesaid, which only becomes
dangerous, or is likely to be or to become dangerous, after
her entry Into it, the Owners shall have the right to require
the Vessel to immediately leave such area.
(c) The Vessel shall not load contraband cargo, nor shall pass
through any blockade, whether such blockade be Imposed on all
vessels, or is imposed selectively in any way whatsoever
against vessels of certain flags or ownership, or against
certain cargoes or crews or otherwise howsoever, nor shall
proceed to an area where she shall be subject, or is likely to
be subject to a belligerent's right of search and/or
confiscation.
(d) If the insurers of the war risks insurance, should require
payment of premiums and/or calls because, pursuant to the
Charterers' orders, the Vessel is within, or is due to enter
and remain within, any area or areas which are specified by
such insurers as being subject to additional premiums because
of War Risks, then such premiums and/or calls shall be
promptly paid by the Charterers as required by the respective
insurers.
(e) The Charterers shall have the liberty:
(i) to comply with all orders, directions,
recommendations or advice as to departure, arrival,
routes, sailing in convoy, ports of call, stoppages,
destinations, discharge of cargo, delivery, or in any
other way whatsoever, which are given by the
Government of the Nation under whose flag the Vessel
sails, or any other Government, body or group
whatsoever acting with the power to compel compliance
with their orders or directions;
(ii) to comply with the orders, directions or
recommendations of any war risks underwriters who
have the authority to give the same under the terms
of the war risks insurance;
(iii) to comply with the terms of any resolution of the
Security Council of the United Nations, any
directives of the European Community, the effective
orders of any other Supranational body which has the
right to issue and give the same, and with national
laws aimed at enforcing the same to which the Owners
are subject, and to obey the orders and directions of
those who are charged with their enforcement.
(f) Without prejudice to Clause 32E tin any and all the events of
outbreak of war (whether there be a declaration of war or not)
the stipulated hire shall continue to be paid In accordance
with Clause 11.
27. Paragraph deleted
28. Termination
(a) Charterers' Default
Subject to the Financial Instruments, the Owners shall be entitled to
withdraw the Vessel from the service of the Charterers and terminate
the Charter with immediate effect by written notice to the Charterers
if:
(i) the Charterers fall to pay hire in accordance with
Clause 11. However, where there is a failure to Make
punctual payment of hire due to oversight,
negligence, errors or omissions on the part of the
Charterers' bankers, the Owners shall give the
Charterers written notice of the number of clear
banking days stated in Box 34 (as recognised at the
agreed place of payment) In which to rectify the
failure, and when so rectified within such number of
days following the Owners' notice, the payment shall
stand as regular and punctual. Failure by the
Charterers to pay hire within the number of days
stated in pox 34 of their receiving the Owners'
notice as provided herein, shall entitle the Owners
to withdraw the Vessel from the service of the
Charterers and terminate the Charter without further
notice;
(ii) the Charterers fail to comply with the requirements
of:
(1) Clause 6 (Trading Restrictions)
(2) Clause 13(a) (Insurance and Repairs)
provided that the Owners shall have the
option, by written notice to the Charterers,
to give the Charterers a specified number of
days grace within which to rectify the
failure without prejudice to the Owners'
right to withdraw and terminate under this
Clause if the Charterers fail to comply with
such notice;
(iii) the Charterers fail to rectify any failure to comply
with the requirements of sub-clause 10(a)(i)
(Maintenance and Repairs) as soon as practically
possible after the Owners have requested them In
writing so to do and in any event so that the
Vessel's insurance cover is not prejudiced.
(iv) the Charter Guarantor (as defined in Clause 33)
breaches or fails to meet any of the Financial
Undertakings provided in Clause 71 of each of the
First Quadripartite Agreement and the Second
Quadripartite Agreement or Clause 10 of the Charter
Guarantee (as same is defined in Clause 32A(a).
(b) Owners' Default
If the Owners shall by any act or omission be in breach of their
obligations under this Charter to the extent that the Charterers are
deprived of the use of the Vessel and such breach continues for a
period of few:teen-(-4) forty five (45) running days after written
notice thereof has been given by the Charterers to the Owners, the
Charterers shall be entitled to terminate this Charter with immediate
effect by written notice to the Owners.
(c) Loss of Vessel
Without prejudice to Clauses 11(e) and 32E, this Charter shall be
deemed to be terminated if the Vessel becomes a total loss or is
declared as a constructive or compromised or arranged total loss. For
the purpose of this sub-clause, the Vessel shall not be Deemed to be
lost unless she has either become an actual total loss or agreement has
been reached with her underwriters in respect of her constructive,
compromised or arranged total loss or if such agreementtew with her
underwriters is not reached it is adjudged by a competent tribunal that
a constructive loss of the Vessel has occurred.
(d) Subject to the Mortgagees' prior approval, either party shall
be entitled to terminate this Charter with Immediate effect by
written notice to the other party in the event of: (i) an
order being made or resolution passed for the winding up,
dissolution, liquidation or bankruptcy of the other party
(otherwise than for the purpose of reconstruction or
amalgamation) or if a receiver is appointed, or If it suspends
payment, Ceases to carry on business or makes any special
arrangement or composition with its creditors or (It) the
Charter Guarantor, as defined In Clause 33, breaches any of
the financial undertakings stated in the Charter Guarantee
and/or the Financial Instruments.
(e) The termination of this Charter shall be without prejudice to
all rights accrued due between the parties prior to the date
of termination and to any claim that either party might have.
29. Repossession
In the event of the termination of this Charter in accordance with the
applicable provisions of Clause 28 the Owners shall have the right to
repossess the Vessel from the Charterers at her current or next port of
call, or at easy other port or place convenient lo them without
hindrance or interference by the Charterers, courts or local
authorities. Pending physical repossession of the Vessel in accordance
with this Clause 29 the Charterers shall hold the Vessel as gratuitous
bailee only to the Owners. The Owners shall arrange for an authorised
representative to board the Vessel as soon as reasonably practicable
following the termination of the Charter. The Vessel shall be deemed to
be repossessed by the Owners from the Charterers upon the boarding of
the Vessel by the Owners' representative. All arrangements and expenses
relating to the settling of wages, disembarkation and repatriation of
the Charterers' Master, officers and crew shall be the sole
responsibility of the Charterers.
30. Dispute Resolution
*)(a) This Contract shall be governed by and construed in accordance
with English law and any dispute arising out of or in
connection with this Contract shall be referred to arbitration
in London in accordance with the Arbitration Act 1996 or any
statutory modification or re-enactment thereof save to the
extent necessary to give effect to the provisions of this
Clause.
The arbitration shall be conducted in accordance with the
London Maritime Arbitrators Association (LMAA) Terms current
at the time when the arbitration proceedings are commenced.
The reference shall be to three arbitrators. A party wishing
to refer a dispute to arbitration shall appoint its arbitrator
and send notice of such appointment in writing to the other
party requiring the other party to appoint its own arbitrator
within 14 calendar days of that notice and stating that it
will appoint its arbitrator as sole arbitrator unless the
other party appoints its own arbitrator and gives notice that
it has done so within the 14 days specified. If the other
party does not appoint its own arbitrator and give notice that
it has done so within the 14 days specified, the party
referring a dispute to arbitration may, without the
requirement of any further prior notice to the other party,
appoint its arbitrator as sole arbitrator and shall advise the
other party accordingly. The award of a sole arbitrator shall
be binding on both parties as If he had been appointed by
agreement.
Nothing herein shall prevent the parties agreeing in writing
to vary these provisions to provide for the appointment of.a
sole arbitrator. . - -. In cases where neither the claim nor
any counterclaim exceeds the sum of US$50,000 (or such other
sum as the parties may agree) the arbitration shall be
conducted in accordance with the LMAA Small Claims Procedure
current at the time when the arbitration proceedings are
commenced.
*)(b) Paragraph deleted
*)(c) Paragraph deleted
(d) Notwithstanding (a), (b) or (c) above, the parties may agree
at any time to refer to mediation any difference and/or
dispute arising out of or in connection with this Contract.
In the case of a dispute in respect of which arbitration has
been commenced under (a), (b) or (c) above, the following
shall apply:
(i) Either party may at any time and from time to time
elect to refer the dispute or part of the dispute to
mediation by service on the other party of a written
notice (the "Mediation Notice") calling on the other
party to agree to mediation.
(ii) The other party shall thereupon within 14 calendar
days of receipt of the Mediation Notice confirm that
they agree to mediation, in which case the parties
shall thereafter agree a mediator within a further 14
calendar days, failing which on the application of
either party a mediator will be appointed promptly by
the Arbitration Tribunal ("the Tribunal') or such
person as the Tribunal may designate for that
purpose. The mediation shall be conducted in such
place and in accordance with such procedure and on
such terms as the parties may agree or, In the event
of disagreement, as may be set by the mediator.
(iii) If the other party does not agree to mediate, that
fact may-be brought to the attention of the Tribunal
and may be taken into account by the Tnbunal when
allocating the costs of the arbitration as between
the parties.
(iv) The mediation shall not affect the right of either
party to seek such relief or take such steps as it
considers necessary to protect its interest
(v) Either party may advise the Tribunal that they have
agreed to mediation. The arbitration procedure shall
continue during the conduct of the mediation but the
Tribunal may take the mediation timetable into
account when setting the timetable for steps in the
arbitration.
(vi) Unless otherwise agreed orspedfiedoin the mediation
terms, each party shall bear its own costs incurred
in the mediation and the parties shall share equally
the mediator's costs and expenses.
(vii) The mediation process shall be without prejudice and
confidentlatvmd no information or documents disclosed
during it shall be revealed to the Tribunal except to
the extent that they are disdosable under the law and
procedure governing the arbitration.
(Note: The parties should be aware that the mediation process
may not necessarily interrupt time limits.)
(e) If Box 35 in Part I is not appropriately filled in, sub-clause
30(a) of this Clause shall apply. Sub-clause 30(d) shall apply
In all cases.
*) Sub-clauses 30(a) 30(b) and 301c) are alternatives; indicate
alternative agreed in Pox 35.
31. Notices
(a) Any notice to be given by either party to the other party
shall be in writing and may be sent by fax, telex, registered
or recorded mail or by personal service.
(b) The address of the Parties for service of such communication
shall be as stated in Boxes 3 and 4 respectively.
PART III, IV and V
Paragraphs deleted
Continuation of PART II
32. Special Provisions
A. Additional Securities
a. Charter Guarantee
The Charterers shall procure and ensure that the Charter Guarantor, shall
unconditionally and irrevocably guarantee the performance of the Charterers
under this Charter as a primary obligor and not merely as a surety, the relevant
guarantee agreement to be in form and substance acceptable to the Owners and the
Mortgagees and to include the Financial Undertakings provided in Clause 7.2 of
each of the First Quadripartite Agreement and the Second Quadripartite
Agreement. This guarantee shall remain in place throughout the whole duration of
this Charter, even in case of the sale of the Vessel under Clause 22(b) hereof.
b. Collateral Guarantees
Without prejudice to the provisions of Clause 32A(a) hereinabove and in addition
to the relevant security provided thereby, the Charterers shall procure that the
charterers of the m/ts "SPOTLESS", "DOUBTLESS" and "FAITHFUL" ("the Collateral
Guarantors") shall unconditionally and irrevocably guarantee on a joint and
several basis the performance of the Charterers under this Charter as primary
obligors and not merely as surety, the relevant guarantee agreements to be in
form and substance acceptable to the Owners and the Mortgagees. In addition the
Charterers hereby undertake to unconditionally and irrevocably guarantee on a
joint and several basis with the Collateral Guarantors the performance of each
respective charter party of the m/ts "SPOTLESS", "DOUBTLESS" and "FAITHFUL" by
the respective charterer, the relevant guarantee agreement to be in form and
substance acceptable to the Owners and the Mortgagees. The guarantees provided
in this sub-Clause 32A(b) shall not be assignable by the Owners to the buyer of
the Vessel under Clause 22(b) hereof.
For the avoidance of any doubt all the securities provided in this Clause 32A
shall be on a joint and several basis.
B. Extension of the Charter Period
At the request of the Owners which must be notified to the Charterers not later
than three (3) months before the fifth anniversary of the date of delivery of
the Vessel to the Charterers under this Charter and for the purpose of assisting
the Owners to sell the Vessel, the Charter Period shall be extended for a period
not longer than three (3) months at the option of the Owners. In such case the
hire throughout such 3-month extended period shall be USD 5,000 per day. However
in case the redelivery of the Vessel would have in any event delayed as a result
of the Vessel not having completed a voyage, the hire shall be until the
completion of such voyage at the rate provided in Clause 15 whilst the three
months period provided under this sub-Clause 32B shall commence after the
termination of such voyage. For any period of delay in the redelivery of the
Vessel following the lapse of the said 3-month period extension, hire shall be
payable in accordance with Clause 15.
The Charterers shall make their best efforts to assist the Owners in selling the
Vessel if and when the Owners require them to provide such assistance.
C. Assignment of Sub-Charters
The sub-charters of the Vessel during the Charter Period as well as all hire and
freight payable to the Charterers thereunder shall be assigned to the Owners and
the Mortgagees as provided by the Financial Instruments.
D. Charterers' Compliance with the Financial Instruments
The Charterers shall timely and promptly comply with all the terms and
conditions of the Financial Instruments and/or as may be required by the
Mortgagees by virtue thereof.
E. "Hell and Highwater" Clause
This Charter is a "hell and highwater" bareboat charter and the Charterers'
obligation for payments hereunder shall be absolute and unconditional under any
and all circumstances and shall not be affected by any circumstances of any
character, including (i) any setoff, counterclaim, recoupment, defence or other
right which the .Charterers or any. other person may have against the. Owners or
any other person for any reason whatsoever, including any default by the Owners
or any other person in its respective obligations hereunder or under any other
agreement, (ii) any unavailability of the Vessel, after its delivery and
acceptance by the Charterers hereunder, for any reason, including any lack or
invalidity of title or any other defect in the title, seaworthiness, condition,
design, operation or fitness for use of the Vessel, or the ineligibility of the
Vessel for documentation or for a particular trade, (iii) any failure or delay
on the part of the Owners or any other person, whether with or without fault on
its part, in performing or complying with any of the terms or covenants
hereunder, or any other agreement, (iv) any damage to the Vessel or interruption
or cessation in the use or possession thereof by the Charterers or any
subcharterer for any reason whatsoever and of whatever duration including an
actual, constructive, compromised or arranged total loss or requisition of
title, (v) any insolvency, bankruptcy, reorganization, arrangement, readjustment
of debt, dissolution, liquidation or similar proceeding by or against the
Owners, the Charterers, any subcharterer or any other person, (vi) any breach of
any representation or warranty of, or any act or omission of, the Owners under
this Charter or any other agreement at any time existing between the Owners and
the Charterers, (vii) any breach of any representation or warranty of, or any
act or omission of the Owners under, any agreement at any time existing between
the Owners and the Charterers and/or any subcharterer, (viii) any deprivation of
use of the Vessel by reason of any act or omission of the Owners, (ix) any
claims as a result of any other business dealings by the Owners, the Charterers,
any subcharterer or any other person, (x) the requisitioning, seizure or other
taking of title to or use of the Vessel by any governmental or other competent
authority or otherwise whether or not by reason of any act or omission of the
Owners, the Charterers, or any subcharterer, or any other deprivation or
limitation of use of the Vessel in any respect or for any length of time,
whether or. not resulting from accident and whether or not without fault on the
part of the Charterers or any subcharterer, (xi) any embargo on the shipment of
any products or any prohibition against the loading or discharging of vessels
containing the same, (xii) the interference with or prohibition of the
Charterers' or any subcharterer's use of the Vessel, (xiii) the invalidity or
unenforceability or lack of due authorization or other infirmity of this Charter
or any other subcharter, (xiv) the lack of right, power or authority of the
Owners to enter into this Charter, (xv) any ineligibility of the Vessel for any
particular trade or activity, whether due to any failure of the Owners, the
Charterers, any subcharterer or any other person to comply with any applicable
law or otherwise, (xvi) any event of force majeure or any frustration, (xvii)
any applicable law or (xviii) any war or any other event that automatically or
by election cancels any available insurance cover or (xix) for any other cause,
circumstance or happening, whether similar or dissimilar to the foregoing, any
present or future applicable law to the contrary notwithstanding. The Charterers
hereby waive, to the extent permitted by applicable law, any and all rights
which they may now have or which at any time hereafter may be conferred upon
them, by statute or otherwise, to terminate, cancel, quit or surrender this
Charter or to any abatement, suspension, deferment, return or reduction of hire
except in accordance with the express terms hereof. If for any reason whatsoever
this Charter shall be terminated in whole or in part by operation of law or
otherwise as specifically provided herein, the Charterers nonetheless agree to
pay to the Owners or to the person entitled thereto an amount equal to each
payment of hire at the time such payment would have become due and payable in
accordance with the terms hereof had this Charter not been terminated in whole
or in part; each payment of hire made by. the Charterers. shall be final, and
the Charterers will not seek to recover all or any part of such payment from the
Owners for any reason whatsoever, except for manifest error.
33. Definitions
"Charter Guarantor" means Top Tankers Inc. of Trust Company Complex, Ajeltake
Road, Ajeltake Island, Majuro, Marshall Islands MH96960;
"First Deed of Covenant" means the deed of covenant collateral to the First
Mortgage executed or (as the context may require) to be executed by the Owners
in favour of the First Mortgagee;
"First Mortgagee" means Fortis Bank (NEDERLAND) N.V. of Coolsingel 93, 3012AE
(or of such other address as may be notified to the relevant parties) and
includes its successors in title as well as any person that may replace the
First Mortgagee;
"First Mortgage" means the first priority statutory ship mortgage on the Vessel
to be executed by the Owners in favour of the First Mortgagee;
"First Quadripartite Agreement" means the deed of assignment to be executed by
the Owners, the Charterers and the Charter Guarantor in favour of the First
Mortgagee;
"MOA" means the Memorandum of Agreement dated 14.3.2006 and made between the
Charterers, as sellers and the Owners, as buyers, pursuant to which the Owners
have agreed to buy and the Charterers have agreed to sell the Vessel on the
terms and conditions mentioned therein;
"Second Deed of Covenant" means the deed of covenant collateral to the Second
Mortgage executed or (as the context may require) to be executed by the Owners
in favour of the Second Mortgagee;
"Second Mortgage" means the second priority statutory ship mortgage on the
Vessel to be executed by the Owners in favour of the Second Mortgagee;
"Second Mortgagee" means Maas Capital Investments B.V., a company incorporated
under the laws of The Netherlands whose registered office is at Coolsingel 93,
3112AE, Rotterdam, The Netherlands and includes its successors in title,
assignees or transferees;
"Second Quadripartite Agreement" means the deed of assignment to be executed by
the Owners, the Charterers and the Charter Guarantor in favour of the Second
Mortgagee;
"Sellers' Credit" means the amount of USD 2,610,000 as provided in Clause 17 of
the MOA.
"Financial Instrument" means:
(a) in the case of the First Mortgagee, the First Quadrapartite Agreement,
and the First Mortgage and the First Deed of Covenant; or
(b) in the case of the Second Mortgagee, the Second Quadrapartite Agreement
and the Second Mortgage and the Second Deed of Covenant,
and "Financial Instruments" means both of them; and
"Mortgagees" means, together, the First Mortgagee and the Second Mortgagee.
31. Insured Amount [for the purposes of Clause 13(1)]
For the purposes of Clause 13(f) and at any relevant time, the insured amount
for the relevant insurances effected or, as the case may be, to be effected for
the Vessel will be an amount in United States Dollars equal to the higher of (i)
the market value of the Vessel at such relevant time (as such market value is
determined by an independent firm of shipbrokers appointed by the Owners in
their sole discretion) and (ii) the amount required under the relevant terms of
either Financial Instrument, if any.
Each valuation made for the purposes of this Box, shall be made without 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, without taking into account the benefit of any charterparty or other
engagement concerning the Vessel. The value of the Vessel determined in
accordance with the provisions hereof shall be binding upon the parties hereto
until such time as any further such valuation shall be obtained.