Attached files
| file | filename |
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| 8-K - III TO I MARITIME PARTNERS CAYMAN I LP | v188848_8k.htm |
| EX-10.2 - III TO I MARITIME PARTNERS CAYMAN I LP | v188848_ex10-2.htm |
Loan
Agreement
between:
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1.
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Capt. Alfred Hartmann
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with
business address at Neue Straße 24, 26789 Leer, Germany.
–
hereinafter referred to as the “Lender” –
and
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2.
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Suresh
Capital Maritime Partners Germany
GmbH
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a company
organised and existing under the laws of Germany, with registered office at
Garrelsstrasse 14, 26789 Leer, Germany, represented by it’s managing director,
Mr. Jason Morton.
–
hereinafter referred to as the “SCMP” –
WHEREAS
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1.
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SCMP
is a limited partner in ATL Offshore GmbH & Co. “ISLE OF SYLT” KG with
a subscribed share-capital of EUR 10,125,000.00, ATL OFFSHORE GMBH &
CO. “ISLE OF NEUWERK” KG with a subscribed share-capital of EUR
10,125,000.00 and ATL OFFSHORE GMBH & CO. “ISLE OF USEDOM” KG with a
subscribed share-capital of EUR 10,125,000.00 (the “KGs”);
and
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2.
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SCMP
has not provided to the KGs part of the subscribed share-capital;
and
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3.
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each
of the the KGs has entered into a separate shipbuilding contract for the
construction of one anchor handling tug supply vessel each with
FINCANTIERI - Cantieri Navali Italiani S.p.A. of Genoa, Italy (hereinafter
“FINC”), bearing FINC Hull-Nos 6169 (ATL Offshore GmbH & Co. “ISLE OF
SYLT” KG), 6172 (ATL Offshore GmbH & Co. “ISLE OF NEUWERK” KG) and
6173 (ATL Offshore GmbH & Co. “ISLE OF USEDOM” KG) (the hulls
hereinafter referred to as the “Vessels” and each of them as “Vessel [+
hull-no]”). Such contracts, as may have been from time to time altered or
amended, are hereinafter referred to as the “Shipbuilding Contracts”;
and
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4.
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the
KGs have, together with 9 other KG’s, entered into a Loan, Guarantee
Facility and Credit Facility Agreement dated December 19th, 2008 with
Norddeutsche Landesbank Girozentrale, Hannover, Germany (“Nord/LB”) as
lender for the provision of part-financing of the purchase price of the
vessels (“Nord/LB Senior Loan Facility”);
and
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5.
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The
Lender is prepared to provide additional funds to SCMP in order to allow
the KGs to draw down the relevant tranches for the construction time
financing.
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THE
PARTIES THEREFORE NOW AGREE AS FOLLOWS:
A.
Loan
from the Lender to SCMP
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I.
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Grant and Purpose of the
Loan
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1.
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The
Lender grants a loan to SCMP in the total amount of € 6,620,000.00 (in
words: Euro six million and six hundred twenty thousand) (the
“Loan”).
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2.
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The
purpose of the Loan is to allow SCMP to make payment in respect of all or
part of SCMP’s outstanding equity-obligation to the respective KGs. The
Loan shall therefore be paid by the Lender within 2 banking days of
signing hereof for and on behalf of SCMP directly to the bank-account of
the respective KGs as set out in cl. C.I. below, such payment being
explicitly designated as payment for SCMP. On the transfer note the Lender
shall state "Payment of Equity Capital by Suresh Capital Maritime
Partners Germany GmbH". The Loan shall be divided in 3 tranches as
follows:
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2.1
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Tranche
1 in the amount of € 1,900,000.00 (in words: Euro one million and nine
hundred thousand) shall be paid to ATL OFFSHORE GMBH & CO. KG “ISLE OF
SYLT” KG;
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2.2
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Tranche
2 in the amount of € 2,100,000.00 (in words: Euro two million and one
hundred thousand) shall be paid to ATL OFFSHORE GMBH & CO. KG “ISLE OF
NEUWERK” KG;
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2.3
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Tranche
3 in the amount of € 2,620,000.00 (in words: Euro two million and six
hundred and twenty thousand) shall be paid to ATL OFFSHORE GMBH & CO.
KG “ISLE OF USEDOM” KG.
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II.
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Interest on the
SCMP-Loan
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1.
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The
Loan shall bear interest of 6% p.a. Interest shall be calculated on the
basis of the exact number of days outstanding, the exact amount
outstanding and a 360 days year.
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2.
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Said
interest is to be paid by SCMP to the Lender on the day following one year
after signing of this agreement and on any of the four anniversaries
thereto without any taxes, fees and other
charges.
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III.
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Term of the
Loan
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1.
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The
Loan is granted for a fixed period of 5 (five) years after signing of this
Agreement. The Loan shall be repaid by SCMP to the Lender 60 month after
signing hereof.
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2.
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The
Loan shall be prepaid prior to the end of the 5
year-period:
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2.1
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in
case SCMP has accumulated sufficient funds to make payment of all or part
of the outstanding amounts under the Loan;
or
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2.2
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in
case of a sale or actual or agreed total loss of any or all of the Vessels
within 5 (five) banking days after the purchase price from any buyer of
each respective Vessel has been paid or any substitute from any insurance
and/or P&I has been paid.
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2.3
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In
case that dividends from any of the three KGs are paid to the
shareholders, SCMP is obliged to use the entire dividends to repay the
Loan or parts of it immediately to the Lender until the Loan is fully paid
up to the amount of € 6,620,000.00. After that the dividends shall be paid
to SCMP.
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3.
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SCMP
shall be entitled to repay all or any portion of the SCMP-Loan, without
penalty at any time prior to the end of the loan period. Such pre-payments
have to be advised by SCMP to the Lender at least 10 banking days in
advance.
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IV.
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Securities
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.
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Payment
of the SCMP-Loan of EUR 6,620,000.00 (Euro six million six hundred and
twenty thousand) and relevant interest will be secured cumulatively by the
following (each a “Security Instrument” and collectively the “Security
Instruments”) in a form acceptable to the
Lender:
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a)
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Notarial
deed containing an abstract acknowledgment of debt in the amount of the
SCMP-Loan plus 6% interest p.a. with submission to immediate execution
(“abstraktes Schuldanerkenntnis mit Unterwerfung unter die sofortige
Zwangsvollstreckung”), as per Annex 1
hereto.
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b)
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Assignment
by SCMP of all rights to dividend payments arising from the share-capital
in the respective KGs up to a total amount of EUR 6,620,000.00 provided
that in case of partial re-payment of the loan the Lender shall release
the rights to dividends in relation to such part of the share-capital for
which payments have been made.
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c)
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upon
demand by the Lender pledge the shares held by SCMP corresponding to the
tranches set out in Cl. A.I. 2.1 – 2.3 above in the respective KG’s up to
a nominal value of € 6,620,000.00; for purposes hereof, the parties
agree that upon any exercise by the Lender against the pledged shares, the
value of such shares surrendered shall be the value of the share-capital
paid for such shares.
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V.
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Warranties and
Representations, Covenants
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1.
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SCMP
shall use its best efforts to collect sufficient funds to be able to repay
the SCMP-loan before the expiry of the five-year
term.
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2.
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SCMP
shall not dispose any of its assets or accept any restructuring measures
in a way unreasonably detrimental to the Lender’s security
interest.
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3.
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To
the knowledge of SCMP, the respective KGs do not have in place any
dividend restriction other than with NORD/LB as to the distribution of
profits and will not agree to any such restriction, other than provided in
the agreement with Nord/LB;
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4.
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SCMP
shall present financial statements fully audited in accordance with German
GAAP standards to the Lender latest at June 30th
of the following year.
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5.
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SCMP
shall present non-audited semi-annual management accounts (i.e. profit and
loss, and balance sheet) per June 30th
to the Lender on July 30th
of each year.
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6.
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The
profits of the KG distributed to SCMP are reserved and used only for the
repayment of the Loan.
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VI.
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Events of
Default
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1.
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An
Event of Default occurs if:
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a.
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SCMP
fails to pay when due the Loan or interest or other sum payable hereunder
or under or pursuant to any of the Security Instruments or other document
relating to this Agreement; or
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b.
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SCMP
or KG defaults in the performance or observance of any other obligation or
term contained herein, in any of the Security Instruments or other
document relating to this Agreement;
or
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c.
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this
Agreement or any of the Security Instruments ceases in whole or in part to
be valid, binding or enforceable;
or
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d.
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any
representation, warranty covenant or undertaking made by SCMP in this
Agreement or in any certificate, statement or other document delivered in
connection with the execution and delivery hereof shall prove to have been
incorrect, inaccurate or misleading in any material respect;
or
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e.
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there
is a material adverse change in the financial situation of SCMP and such
occurrence in the opinion of the Lender makes it unlikely that SCMP will
be able to perform their obligations hereunder and/or under the Security
Instruments in the manner provided herein and/or therein;
or
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f.
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SCMP
ceases or threatens to cease to carry on its business or disposes or
threatens to dispose of any substantial part of its assets or the same are
seized or appropriated for any reason;
or
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g.
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SCMP
and/or any of the KGs becomes insolvent or bankrupt or becomes unable to
pay its debts as they mature or makes any composition with or assignment
for the benefit of its creditors or applies for or consents to or sustains
the appointment of a trustee or receiver in respect of its assets or a
substantial part thereof or ceases or threatens to cease to carry on
business; or
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h.
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SCMP
ceases to be a limited partner (Kommanditist) of one or
all of the the KGs holding a minimum of fifty (50) percent of one or all
of the KGs; or
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i.
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any
event of default occurs under the Nord/LB Senior Loan Facility and Nord/LB
has therefore given notice of termination of the Senior
Loan.
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2.
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If
any such event occurs, the Lender shall be entitled by written notice to
the SCMP to declare the Loan immediately due and payable with interest
accrued thereon and with the ability to enforce the Securities or any of
them.
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B.
Further
Disbursements;
Costs
and expenses
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1.
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SCMP
shall reimburse the Lender for the costs of any security provided in
respect of the Loan, including but not limited to the costs of any
guarantees provided as security, if any, by the Lender or third parties at
the Lender’s request and costs.
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2.
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SCMP
shall re-imburse the Lender for any cost of legal advice in relation to
this agreement, including but not limited to disbursements, taxes, duties
etc.
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3.
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An
invoice provided by the Lender and supported by relevant vouchers or other
documentation of disbursements shall be conclusive evidence of the amounts
payable by SCMP pursuant to this section
B.
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4.
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Any
other costs in relation hereto are to be borne by the party that incurs
them
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C.
Miscellaneous
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I.
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Payments
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1.
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The
SCMP-Loan shall be paid to the following bank accounts of the
KGs:
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Tranche
1:
ATL
OFFSHORE GMBH & CO. KG “ISLE OF SYLT” KG
Norddeutsche Landesbank Girozentrale,
Hannover/Germany,
Account
number: __________ ; bank code: _______
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Tranche
2:
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ATL
OFFSHORE GMBH & CO. KG “ISLE OF NEUWERK” KG
Norddeutsche Landesbank Girozentrale,
Hannover/Germany,
Account
number: __________; bank code: _________
Tranche
3:
ATL
OFFSHORE GMBH & CO. KG “ISLE OF USEDOM” KG
Norddeutsche Landesbank Girozentrale,
Hannover/Germany,
Account
number: ____________ ; bank code: _________________
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2.
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Any
payment to the Lender under the SCMP-Loan shall be made to the following
bank account of the Lender:
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Ostfriesische
Volksbank eG,
Leer/Germany,
BIC____________________________
____________________________
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II.
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Severability
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Should
any provision of this Agreement be invalid or unenforceable or to be regarded as
invalid or unenforceable, then the validity and enforceability of the remaining
provisions of this Agreement shall not be affected. In this case, the parties
will identify and replace the invalid or unenforceable provision or provisions
with provision/provisions which comes/come closest to the commercially intended.
The same applies in case of gaps in this Agreement.
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III.
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Modifications
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Any and
all changes and/or amendments to this Agreement shall be in writing only; this
applies in particular to this provision.
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IV.
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Applicable Law and
Settlement of Disputes
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1.
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All
rights and obligations arising out of or in connection with this Agreement
shall be governed by and interpreted according to the Law of the Federal
Republic of Germany.
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2.
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All
disputes arising out of or in connection with this Agreement or concerning
its validity shall be finally settled by arbitration in accordance with
the Arbitration Rules of the German Maritime Arbitration Association.
Place of arbitration is Hamburg. Language of Arbitration is
English.
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V.
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Notices
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1.
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Any
notice to be served on any party by the other shall be sent by prepaid
recorded delivery or registered post or by facsimile and shall be deemed
to have been received by the addressee within 72 hours of posting or 24
hours if sent by facsimile to the correct facsimile number of the
addressee. Time for service of notice shall not run during a day when it
is not a business day in the place of
addressee.
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2.
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The
Parties’ addresses and other details for the purposes of this Clause 14
are as follows:
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Alfred
Hartmann
Attn: Dr.
Niels Hartmann
Neue
Straße 24
26789
Leer
Germany,
Tel. +49
– 491 - 999700
Fax: +49
– 491 -9997060
Email:
n.hartmann@hartmann-ag.com
Suresh
Capital Maritime Partners Germany GmbH
c/o Cain,
Watters & Associates
Attn.:
Jason Morton
5580
Peterson Lane - Suite 250,
75240
Dallas,
United
States of America
Tel.: +
1 972 392 5400 ;
E-mail:
Jmorton@3to1fmr.com
or any
other address notified by a party to all other parties.
Signed
this 17 day
of June, 2010
| /s/ Darrell Cain | /s/ Alfred Hartmann | |
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Suresh
Capital Maritime Partners Germany GmbH
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Capt.
Alfred Hartmann
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By:
Jason Morton or Darrell W. Cain
Title: Managing
Director
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