Partnership Agreement of MUNIA Mobiliengesellschaft mbH & Co. KG, Grünwald Name and Principal Place of Business
Non-Binding
Working Translation
Partnership
Agreement of MUNIA Mobiliengesellschaft mbH & Co. KG,
Xxxxxxxx
§
1
Name
and Principal Place of Business
The
Partnership carries the name MUNIA Mobiliengesellschaft GmbH & Co. KG and
has its principal place of business in Xxxxxxxx (hereinafter referred to as the
“Fund
Company”)
§
2
Object
of the Company
The
object of the enterprise of the Fund Company is the acquisition of ships (in
particular containerships) and their operation, chartering and exploitation
in
its own and in someone else’s name, as well as the participation in other
companies for this purpose. The company is entitled to carry out all business
acts connected with the object of the company, for example to the raising of
loans. Banking business and activities pursuant to § 34 c GewO are
excluded.
§
3
Partner,
Partners’ Capital Contributions, Accession
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1.
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MUNIA
Mobilien-Verwaltungs-xxxxxx-xxxxxx mbH with its principal place of
business in Xxxxxxxx shall be the personally liable and Managing Partner.
It shall make no capital contribution and has no interest in the
assets of
the Fund Company. MUNIA Mobilien-Verwaltungsgesell-schaft mbH is
released
from the limitations of Section 181 BGB (German Civil
Code).
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2.
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The
limited partner capital of the Fund Company amounts to USD 15.5 mil..
The
limited partners are MIRAN Grundstücks-Verwaltungsgeselschaft mbH,
Xxxxxxxx with a capital contribution of USD 11.5 mil. and MC Shipping
Inc., Monaco (hereinafter referred to as “MC Shipping”) with a capital
contribution of USD 4.0 mil. The mandatory capital contributions
of the
limited partners are due for payment upon request of the Managing
Partner.
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Limited
partner in trust shall be the TERTIA Verwaltungsgesellschaft GmbH
with its
principal place of business in Xxxxxxxx (hereinafter referred to as
“Fiduciary Partner”).
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3.
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MIRAN
Grundstücks-Verwaltungs-xxxxxx-xxxxxx mbH is entitled to split its limited
partnership interest and to transfer it in whole or in part to new
trustees/limited partners without the consent of the other partners
and
without the limitations set forth in § 6. The capital contribution of each
new limited partner and of each partner participating indirectly
by
entering into a trust agreement with the Fiduciary Partner must have
a
minimum amount of USD 20,000.00 or such higher amount which can be
divided
without balance by 1,000 or, in case of over-subscription, to the
allocated smaller amount.
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4.
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In
general, only individual natural persons can become limited partners
or
trustees of the Fund Company. In individual cases legal entities
and
partnerships can also be admitted as partners. Any participation
of
private partnerships, married couples or other organisations or
communities is precluded. It is not permitted to acquire or to hold
partnership interests as trustee for third parties.
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5.
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The
mandatory capital contributions correspond to the amount of the limited
partnership interest. The capital contributions entered into the
commercial register in USD as minimum liability amount shall be 10%
of the
mandatory capital contribution.
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6.
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The
contributions are fixed capital contributions which are entered into
a
permanent account (Capital Account I) for each partner and which
constitute the capital account of the partner. Unless otherwise provided,
the Capital Account I is solely decisive for the participation of
the
partners in the assets, the profits and losses of the Fund Company,
as
well as for all partnership rights. Unless otherwise provided in
this
Agreement, the Capital Accounts I can only be amended by a unanimous
decision of the partners. As further account for each partner, a
variable
capital account (Capital Account II) shall be established to enter
profits, losses and withdrawals of profits, as well as contributions
according to § 6 no. 4 and § 11 and a further Capital Account III in which
the repayment of capital contributions will be recorded. The capital
accounts shall not bear any interest. They shall be maintained in
USD and
the recorded amounts shall not be converted to
Euro.
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Non-Binding
Working Translation
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7.
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All
limited partners are obliged to provide the Fund Company with a notarised
power of attorney in relation to the commercial register immediately
after
their accession, which authorises the general partner to undertake
all
actions in relation to entries in the commercial register for the
entire
term of the participation. Any costs related thereto shall be borne
by the
limited partners. The same applies to limited partners subsequently
acceding due to legal succession.
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§
4
Legal
Position of the Partners participating by means of a Trust Agreement (Trustees),
Remuneration of Fiduciary Partner
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1.
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The
Fiduciary Partner holds and manages its participation in a fiduciary
manner for the trustees with whom it has entered into trust agreements.
It
shall follow the instructions of the trustee. If no instructions
of the
trustee are available, the Fiduciary Partner shall exercise the partners
rights except for the voting rights in the trustee’s best
interest.
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2.
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As
between the partners and trustees, the trustees shall be considered
and be
treated as directly participating partners. This applies in particular
to
voting rights (cf. § 13), participation in the assets of the company, in
profits and losses, settlement amounts and any liquidation funds
as well
as the exercise of partnership rights and the right to transfer their
trustee position to third parties. The provisions of this partnership
agreement apply accordingly to trustees even if they are not expressly
mentioned.
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3.
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For
its willingness to take up the position as Fiduciary Partner including
the
actual assumption of the position as Fiduciary Partner, the Fiduciary
Partner shall receive from the Fund Company a fixed remuneration
in the
amount of USD 5,000.00 p.a. inclusive of statutory VAT. The remuneration
is payable annually and in arrear on 30.12., the last time, on a
pro rata
basis, at the time of the liquidation of the Fund
Company.
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§
5
Term
of the Company, Financial Year
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1.
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The
Fund Company is established for an unlimited period of
time.
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2.
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The
financial year shall be the calendar
year.
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§
6
Encumbrance
and Transfer of Partnership Interests
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1.
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Any
transfer, in whole or in part, encumbrance or other disposition of
partnership interest shall only be valid with the prior and written
consent of the Managing Partner. The consent may only be withheld
for
important reasons. A transfer of part of the partnership interest
is not
permitted if this would result in a partnership interest of an amount
of
less than USD 20,000.00 or of interest not dividable without balance
by
1,000. § 3 no. 4 shall apply
accordingly.
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A
disposition which results in the separation of the participation
and the
enjoyment of rights in the partnership interest, in particular the
creation of a usufruct, is not
permitted.
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In
general, the transfer or other disposition of a partnership interest
shall
only become effective on 1 January following the year of such a
transaction.
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2.
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Any
intended transfer, in whole or in part, encumbrance or other disposition
shall be notified in due time and in writing to the Managing Partner
for
the purpose of providing consent.
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3.
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In
the event of any transfer to or other assumption of the position
as
partner by a third party, irrespective of whether in the course of
inheritance or legal succession, all accounts according to § 3 no. 6 shall
be continued unchanged and uniformly. In the event of a partial transfer
of a partnership interest, accounts will be divided to separate accounts
reflecting the portions of the division. It is not possible to transfer
or
assume individual rights and/or obligations with respect to individual
partners accounts separately from the respective partnership
interest.
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4.
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All
costs of a transfer in whole or in part, or of an encumbrance as
well as
an assignment in whole or in part, including in particular the costs
of
the registration with the commercial register, shall be borne vis-à-vis
the Fund Company by the transferring or the encumbering partner and
the
acquiring party as jointly liable debtors. Furthermore, the
transferring/encumbering partner and the acquiring party shall jointly
be
liable for the costs of the administrative efforts which the Fund
Company
is charged by its administrator, up to an amount of USD 2,000.00.
Upon
request of the Managing Partner, the partner immediately has to effect
a
contribution in the corresponding amount to its capital account (Capital
Account II). § 11 shall remain
unaffected.
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5.
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Notwithstanding
the aforementioned provisions
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(a)
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the
Fiduciary Partner shall be permitted to transfer its partnership
interest
at any time in whole or in part to a succeeding fiduciary partner
or to
its trustees and to assign dividend and withdrawal rights, liquidation
and
settlement payments it is entitled to as Fiduciary Partner, in each
case
on a pro rata basis, to its
trustees;
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(b)
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in
the event of a withdrawal of a partner pursuant to § 7 of the Partnership
Agreement, the Managing Partner shall be authorised to transfer the
partnership interest of the withdrawing partner to a third
party.
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§
7
Termination,
Exclusion, Withdrawal
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1.
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Each
partner is entitled to terminate its participation in the Fund Company
with effect at the end of 30 June 2013 by registered letter with
a notice
period of three months, thereafter with the same notice period with
effect
to the end of any fiscal year. The termination notice shall be addressed
to the Fund Company. Receipt of the notice is decisive for compliance
with
the notice period. The partner giving notice withdraws from the Fund
Company with effect of the date for which notice has been properly
given.
If within six months after receipt of the notice the partners liquidate
the partnership, or if the Fund Company is liquidated for mandatory
reasons at the time of the withdrawal of the partner giving notice,
then
the partner giving notice shall participate in the
liquidation.
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2.
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The
Managing Partner is entitled and, under release from the restrictions
pursuant to § 181 BGB, authorised to exclude a partner from the Fund
Company with immediate effect by way of written unilateral declaration,
if
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(a)
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the
relevant partner, contrary to his obligations under § 6 no. 4 and § 11,
does not immediately compensate the Fund Company for all disadvantages
arising from a change of partners following written notice by the
Managing
Partner;
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(b)
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the
relevant partner is subject to execution measures with respect to
the
partnership interest or
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(c)
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any
other important reason is present.
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The
partner ceases to be partner of the Fund Company with receipt of
the
exclusion declaration or at the declared later time. The exclusion
declaration is deemed to be received three days from mailing to the
last
address advised to the Fund Company in
writing.
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In
the case of execution measures being levied in relation to the partnership
interest, the exclusion shall become invalid, if the relevant partner
within one month following the receipt of the exclusion declaration
proves
that the execution measures have been cancelled. Until the expiry
of that
period, all payments relating to his partnership interest and arising
from
his position as partner shall be suspended with effect vis-à-vis all
partners.
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3.
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With
the institution of insolvency or similar proceedings with regard
to the
assets of a partner, the partner in question shall retire from the
Fund
Company without any further act or notice being required by the Fund
Company or the partners. The same shall apply if an application for
the
institution of insolvency or similar proceedings is rejected due
to a lack
of assets.
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4.
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In
all cases of the retirement or exclusion of a partner, the Fund Company
shall continue to exist between the remaining partners. The partnership
interest in the company assets of the ceasing partner shall accrue
to the
remaining partners in relation to their prior participation. The
trustees
shall participate in this accrual through the Fiduciary Partner.
The
capital contribution of the Fiduciary Partner shall be reduced in
relation
to the contribution of a ceasing
trustee.
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5.
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In
the cases set forth in no. 2, the Managing Partner shall, at his
discretion and under release from the limitations pursuant to § 181 BGB,
as an alternative to exclusion also be entitled and authorised to
transfer
the partnership interest of the partner in question to one or more
third
parties nominated by the Managing Partner. The transfer shall be
effected
at the value set out in § 9.
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§
8
Death
of a Partner
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1.
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If
a partner dies, his participation shall be transferred to his heirs
at the
time of the heritable succession (subrogation). The Fund Company
will be
continued with the heirs. The heirs must prove their position by
presenting a certificate of probate, the executor by presentation
of a
certificate of executorship. If foreign documents are presented to
the
Fund Company in order to prove succession rights or the rights of
disposition, the Fund Company shall be entitled to have these documents
translated and/or to obtain a “legal opinion”(Rechtsgutachten)
concerning the legal effect of the submitted documents at the costs
of the
person relying on these documents. The Fund Company can waive the
right to
request a certificate of inheritance or an executor’s certificate, if a
notarised copy of a public deed is submitted containing the last
will
(notary will/inheritance contract), together with the official deed
stating its publication. The Fund Company may consider those parties
which
are set forth as successors or executors as being the entitled parties
and
may reregister the deceased partner’s interest in the name of these
persons, may have these persons dispose over the partnership interest
and
may in particular make payments to these persons with discharging
effect
for the partnership.
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2.
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Until
presentation of sufficient proof of inheritance according to no.
1, the
voting rights and the other partner rights of the heirs with the
exception
of the participation in profits and loss shall be suspended. During
this
time, the Fund Company is entitled to make distributions/withdrawals
or
other payments with the discharging effect to the last nominated
account
of the deceased person.
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3.
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Transfers
in compliance with legacies and instructions to apportion the estate
as
well as in cases of a distribution of a deceased estate shall be
made
pursuant to § 6. Notwithstanding § 6, the transfer of the partnership
interest can be made with effect from the time of the fulfilment
of the
testamentary disposition and the succession, respectively, without
the
approval of the Managing Partner. The minimum participation shall
not fall
short as a result of this.
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§
9
Settlement
with retiring Partners/Compensation
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1.
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If
a partner retires from the Fund Company due to a termination pursuant
to §
7 no. 1, his compensation shall be based on the market value of his
partnership interest. Payment of the compensation cannot be requested
before the expiration of six months following his retirement. Until
payment, the compensation shall bear interest at the then applicable
market interest rate.
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2.
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If
a partner retires according to § 7 no. 3 or by way of exclusion pursuant
to § 7 no. 2, he shall be entitled to compensation in USD in the amount
of
the nominal value of his partnership interest as determined on the
basis
of the final balance of the financial year prior to the year of his
retirement/exclusion but taking into consideration the profits accrued
as
well as amounts withdrawn in the meantime and unsettled cost and
tax
reimbursement obligations according to § 6 no. 4 and §
11.
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The
payments to be made by the partner shall be due four weeks upon request
by
the Fund Company. Amounts payable by the Fund Company shall also
be due
four weeks upon request by the retiring partner, however, at the
earliest
twelve months after the retirement of the respective
partner.
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3.
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§
6
no. 1 and § 11 shall apply
accordingly.
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4.
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The
retiring partners are not entitled to request any security for their
compensation claims. They may not request indemnification from liabilities
of the partnership or from future claims by creditors of the partnership.
Notwithstanding this provision, however, the general partner and
the
Fiduciary Partner may request indemnification from continuing liability
for claims against the partnership at the time of their retirement
from
the partnership.
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Working Translation
§
10
Exclusion
MC Shipping
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1.
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The
Managing Partner is entitled and authorised under release from the
limitations pursuant to § 181 BGB to reduce the partnership interest of MC
Shipping (Capital Account I) or to exclude MS Shipping from the Fund
Company by unilateral written notice with immediate effect, if and
to the
extent MC Shipping does not comply with its payment obligations under
the
Opex and Charter Guarantee with the Fund Company within one week
upon
request by the Fund Company.
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2.
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The
compensation of MC Shipping in case of a reduction of its partnership
interest or its exclusion according to no. 1 will be determined on
the
basis of the market value of the partnership interest. In case no
agreement can be reached between the Managing Partner and MC Shipping
in
respect to the market value, the Managing Partner shall be entitled
to
instruct Xxxxx Xxxxxxxx to issue an expert opinion in respect to
the fair
market value at the costs and expenses of MC Shipping. The fair market
value determined by Xxxxx Xxxxxxxx shall be binding upon the
parties.
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3.
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The
Fund Company can set off its claims under the Opex and Charter Guarantee,
at its discretion, with either the partnership interest of MC Shipping
in
the Fund Company on the basis of the fair market value according
to no. 2
or with the compensation claim of MC
Shipping.
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3.
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§
6
no. 4 and § 11 shall apply accordingly. § 7 shall remain
unaffected.
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§
11
Levies
and Cost Charges of the Company
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1.
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Charges
of the Fund Company by levies (i.e. taxes, fees, membership dues)
and
other costs, which result from the acts of a partner or are a result
of
the person or legal structure of a partner, shall be borne by the
respective partner triggering the charge and any successor (with
regard to
the relevant partnership interest) as jointly liable debtors. Upon
request
of the Managing Partner, such person has to immediately effect a
contribution in the corresponding amount to its variable capital
account
(Capital Account II).
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2.
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The
obligation to repay levies and costs according to no. 1 in particular
includes any trade tax charges of the Fund Company which result
from
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(a)
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that
the gained profit of the partner due to the sale or other transfer
of its
partnership interest having to be considered in the trade income
of the
Fund Company or any trade tax loss carry forward of the Fund Company
can
no longer be used;
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(b)
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that
in the course of a liquidation of the Fund Company or the exclusion
or
retirement of a partner, the trade income of the Fund Company is
increased
for reasons, which are a result of in the person or the legal structure
of
one or more partners, or any loss carry forward of the Fund Company
for
trade tax purposes can no longer be
used;
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(c)
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that
a profit for cessation of the business of the Fund Company arises
in the
course of the liquidation, which increases the trade income of the
Fund
Company as a result of all or some of the partners are not directly
participating natural persons;
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(d)
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that
the income of the Fund Company for trade tax purposes is increased
by the
fact that the compensation balance/profit of the retiring partner
has to
be considered in the determination of the trade income of the Fund
Company;
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(e)
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that
separate business income arises with a partner and/or a negative
supplementary balance sheet has to be prepared for a partner and
as a
result the income of the Fund Company for trade tax purposes is
increased.
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3.
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The
Fund Company has to provide the cost bearing partner with suitable
evidence in order to establish its claim for reimbursement. To the
extend
and as long as the amount of the reimbursement claim cannot be specified,
the Fund Company is entitled in the case of a liquidation of the
Fund
Company and the exclusion of a partner, respectively, to exercise
a right
of retention in the amount of the approximate reimbursement claim
against
the claim for distribution of the compensation balance in case of
retirement or of the liquidation proceeds in case of liquidation
as
security for its reimbursement claim against the respective partner.
In
the case of a transfer or other disposal of a partnership interest,
the
Managing Partner may request appropriate security for this reimbursement
claim of the Fund Company as a condition for its required approval
according to § 6 no. 1. As soon as the Fund Company is able to ascertain
the amount of its reimbursement claim, in particular after receipt
of the
respective tax assessment, the final settlement of accounts has to
be
prepared by the Fund Company without undue
delay.
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§
12
Management,
Representation
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1.
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Managing
Director of the Fund Company is the personally liable partner MUNIA
Mobilien-Verwaltungsgesellschaft mbH; it has sole power of representation
of the Fund Company towards third parties. The Managing Partner is
authorised to transfer the management to third parties partly or
in
total.
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2.
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The
Managing Partner is released from the limitations of Section 181
German
Civil Code.
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3.
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Acts
exceeding the ordinary business according to Section 116 para. 1
German
Commercial Code may only be performed by the Managing Partner with
the
consent of the advisory board (Beirat)
or
the partners. The ordinary course of business shall particularly
include
the following acts, provided that these acts are not explicitly subject
to
the consent of the advisory board:
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(a)
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the
acquisition of the ships “MS Maersk Belawan”, “MS Maersk Brisbane”, “MS
Ankara” and “MS Maersk Barcelona”;
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(b)
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the
entering into and implementation of management
contracts;
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(c)
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the
entering into of all contracts which are necessary for the operation
of
ships, especially purchase contracts, insurance policies, as well
as hire
and employment contracts;
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(d)
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the
entering into the an Agreement with MC Shipping re. an Opex and a
Charter
Guarantee in respect to the ships set forth in (a) above (“MC
Agreement”);
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(e)
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the
entering into agreements providing for rights of first refusal in
respect
to the ships set forth in (a)
above;
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(f)
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the
performance of repairs including the replacement of equipment which
in any
single case do not exceed USD 0.9 million as well as repairs of damages
which are insured under existing insurance policies or which have
to be
compensated for by third parties;
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(g)
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the
entering into or assumption of the existing charter party with X.X.
Xxxxxxx-Maersk A/S as well as the implementation and amend-ment of
charter-parties;
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(h)
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the
chartering of ships for a term of up to six
months;
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(i)
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the
entering into of loan agreements and security documents including
the
encumbrance of vessels with mortgages and the assignment of other
objects;
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(j)
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the
entering into of marketing contracts and contracts with brokers,
charter-party agent contracts, financing agency agreements, consulting
contracts and concept agreements;
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(k)
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the
change of register and flag of vessels as well as any measures connected
thereto;
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(l)
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the
execution of the option for tonnage taxation (§ 5a German Income Tax Act -
Tonnage Tax)
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(m)
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granting
credits (e.g.: agreeing on credit
periods);
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(n)
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the
entering into of administrative contracts and agency
contracts;
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(o)
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the
entering into of agreements relating to the placement of
equity;
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(p)
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the
conclusion of insurance contracts for members of the advisory
board;
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(q)
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the
decision on the introduction, amount and use of a reserve of liquid
assets;
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(r)
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bookkeeping
and handling of payment
transactions;
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(s)
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the
enforcement (in and out of court) of all rights and compliance with
all
duties from the above-mentioned contracts including
settlements.
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The
right
to enter into agreements also includes the amendment and cancellation of such
agreements.
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4.
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If
an advisory board is established, the management requires the consent
of
the advisory board in respect of the following
acts:
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(a)
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the
purchase and sale of ships unless the purchase or sale occurs exclusively
in connection with a flag or register
change;
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(b)
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the
chartering of ships for a term of more than six months unless the
charter
occurs exclusively in connection with a flag or register
change;
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(c)
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the
performance of class renewals (special
survey);
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(d)
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the
performance of repair works including the replacement of equipment
which
in any single case exceeds USD 0.9 million with the exception of
repair of
damage which is insured under the existing insurance policies or
which a
third party is required to
compensate.
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In
urgent cases, in particular for lack of availability of the members
of the
advisory board, the Managing Partner shall be entitled to act without
the
consent of the advisory board.
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5.
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Claims
for damages against the Managing Partner arising from the partnership
relationship shall only exist in the case of a grossly negligent
or wilful
breach of duties by the Managing Partner. This shall also apply in
respect
to a responsibility for a third party in accordance with Section
278
German Civil Code. Such claims for damages resulting from the partnership
relationship shall be subject to a limitation period of six months
after
the applicant(s) obtained knowledge about the act leading to the
claim for
damages at the latest, however, such limitation period shall be five
years
after the act resulting the claim for damages has been performed
or the
necessary act has been omitted.
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§
13
Partners’
Resolutions
|
1.
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Partner’s
Resolutions are adopted in writing and, generally, by way of a circulating
procedure (Umlaufverfahren).
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2.
|
Annually
prior to 30 September, a resolution for the determination of the
Annual
Fiscal Statement of the previous fiscal year shall be
adopted.
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3.
|
The
managing director conducts the passing of the resolution. He stipulates
the due date which shall not less than four weeks after the mailing
of the
resolution documents to the partners/trustees. The resolution documents
are properly sent out, if they are mailed to the last address of
the
partner given to the Fund Company in writing. In the event that the
residence of a partner is unknown or if the resolution documents
cannot be
delivered to him for other reasons, his voting rights are suspended
until
this situation is eliminated. The invitation for the adoption of
a
resolution shall include all voting topics, shall specify the precise
proceedings and the last day of voting as well as the number of votes
of
the respective partner. A quorum in circulating proceedings shall
be
present, once the aforementioned formal requirements are
met.
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In
circulating proceedings, resolutions are validly adopted upon receipt
of
the necessary votes by the Fund Company on the end of the last voting
day.
Receipt is required for the observance of the deadline. The partners
shall
be notified in writing by the Fund Company about the result of the
resolution.
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4.
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Each
partner can request from the Fund Company an extraordinary vote for
important reasons by naming the reason and the voting topic. The
Fund
Company shall conduct this extraordinary vote in circulating proceedings.
In urgent matters the deadline for the casting of the votes can be
reduced
to ten days after the mailing of the resolution documents.
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5.
|
In
the event of an important reason, the managing director may abstain
from
circulating proceedings. In such an event, he has to convene a partners
meeting at a location determined by him. The invitation shall include
notification of the agenda and shall be issued at least within four
weeks
prior to the date of the meeting; the date as per postmark being
decisive.
In the case of urgency, the deadline can be reduced to ten days.
The
invitation is duly mailed if it is mailed to the last address given
to the
Fund Company in writing. In the event that the residence of a partner
is
unknown or if he cannot be invited to the Partners’ Meeting for other
reasons, his voting rights are suspended until this situation is
solved,
unless a representative notified to the Fund Company in
writing.
|
|
The
Partners' Meeting is chaired by the Managing Partner or by a third
person
mandated and authorized by the Managing Partner (chairman of the
meeting).
The Managing Partner shall appoint a secretary to keep the minutes.
The
minutes of the votes shall be signed by the secretary and by the
chairman
of the meeting, and a copy shall be posted to the
partners.
|
|
The
Partners' Meeting has a quorum, if all partners have been properly
invited
and the Managing Partner as well as the Fiduciary Partner are present
or
represented.
|
|
Each
trustee/limited partner can be represented at a Partners' Meeting
only by
one other trustee/limited partner, his spouse, a parent, a child
of full
age, an executor or by his general agent. Representation by a person
not
included in the foregoing sentence requires the consent of the Managing
Partner which can only be withheld for important reasons. A respective
power of attorney must be in writing and must be handed out to the
chairman of the meeting at the beginning of the Partners'
Meeting.
|
|
Each
trustee may authorize the Fiduciary Partner to execute his voting
rights,
and has the right to instruct him with respect to the voting topics;
he
can also give him the general instruction to vote pursuant to his
proper
discretion. The partners hereby expressly consent to a split exercise
of
the voting rights by the Fiduciary Partner as a result of different
instructions by the trustees.
|
|
The
costs for participation in a Partners' Meeting and for a possible
representation shall be borne by each trustee/limited
partner.
|
|
6.
|
Each
full USD 1,000 of any capital contribution of a partner or trustee
shall
grant one vote. The general partner has 100 votes. The trustees have
their
own voting rights based on their partnership interests. The Fiduciary
Partner shall not have any own voting rights, not even in extraordinary
matters.
|
|
7.
|
In
particular, the following issues require a partners’
resolution:
|
|
(a)
|
approval
and adoption of the annual balance sheet and the profit and loss
statement;
|
|
(b)
|
allocation
of annual profits and losses including the exercise of accounting
method
options;
|
|
(c)
|
discharge
of the management and the advisory
board;
|
|
(d)
|
election
of the auditor, unless otherwise set forth in this
Agreement;
|
|
(e)
|
election
of the members of the advisory
board;
|
|
(f)
|
amendments
to the Partnership Agreement;
|
|
(g)
|
dissolution
of the partnership;
|
|
8.
|
Resolutions
made in circulating proceedings and resolutions adopted in the Partners'
Meeting shall be adopted with single majority of votes cast, unless
this
Partnership Agreement or mandatory statutory law provide otherwise.
In
case of more than two alternative decisions, the one that has obtained
the
highest number of votes shall be adopted. Abstentions, not or delayed
casts of votes (§ 13 no. 3, para. 2) as well as votes which are invalid
for other reasons shall not be taken into
account.
|
|
9.
|
Amendments
to the Partnership Agreement and the dissolution of the Fund Company
require a majority of the votes cast and the consent of the Managing
Partner. The exclusion of a general partner, the revocation of
authorisation and the revocation of power of management can only
be
resolved by a majority of ¾ of the votes cast, unless an important reason
exists.
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10.
|
Resolutions
amending this agreement which do not formally and substantially treat
all
Partners equally, or which impose additional obligations on the Partners,
or which change the legal position of the Managing Partner to its
disadvantage, require the approval of all
Partners.
|
|
11.
|
Resolution
adopted in circulating proceedings or in a Partners' Meeting can
only be
challenged within one month after the mailing of the voting results
or the
minutes of the meeting. Upon the expiration of this period, any defect
will be deemed to be cured.
|
§
14
Advisory
Board
|
1.
|
The
advisory board shall consist of five ordinary members. It shall be
established after the entry of all partners during the partners meeting
which decides on the discharge for the fiscal year
2005.
|
|
The
members of the advisory board shall, in principle, invest a minimum
of USD
40,000 in the Fund Company and they shall not be employed at, or
act as
advisors to, any competitors of V.Ships (Germany) GmbH & Co. KG or
ALCAS GmbH or their affiliated
companies.
|
|
The
general partner and MC Shipping shall be entitled to appoint an expert
in
relation to the partnerships interests to be a member of the advisory
board and such member is not required to be a partner of the Fund
Company.
The members of the advisory board not being delegated shall be elected
at
the partners meeting by a simple majority of the votes cast. The
performance of the election and the determination of the procedure
shall
be the responsibility of the Managing
Partner.
|
|
The
terms of office of the advisory board shall in each case end at the
end of
the partners meeting in respect of the discharge for the fourth fiscal
year following the commencement of the term of office or, as the
case may
be, at the expiration of the last voting day in relation to the partners’
resolution in respect of such discharge. The fiscal year in which
the term
of office commences shall not count in this
respect.
|
|
2.
|
If
one member of the advisory board should resign during the term of
office,
then a by-election shall be held at the next partners meeting at
which a
discharge is to be decided, which result shall be valid for the period
until the end of the current term of office. For the period of time
until
a new member of the advisory board is elected the Managing Partner
shall
be entitled to delegate a member of the advisory board who is not
required
to be a partner of the Fund Company. In other respects, no. 1 shall
apply
accordingly to the by-election and the personal
requirements.
|
|
3.
|
Following
the election, the advisory board shall, for the term of office, elect
from
among its members a chairman and a vice chairman who shall act for
the
chairman in the chairman’s absence.
|
|
4.
|
The
chairman shall call the meetings of the advisory board verbally,
telephonically, in writing or by telex, giving notice of the agenda.
There
shall be a period of not less than seven days between the date of
the
notification and date of the meeting. The chairman shall call a meeting
of
the advisory board if required for the interests of the Fund Company,
or
if a meeting of the advisory board is requested by any member of
the
advisory board. The meetings shall, generally, be held at the place
of
business of the Fund Company. The general partner shall be entitled,
but
not obliged, to participate in the meetings of the advisory board.
|
|
The
chairman shall chair the meetings of the advisory board. He shall
ensure
the execution of the resolutions of the advisory board. Any and all
declarations of the advisory board shall be made by the chairman.
In
relation to the meetings of the advisory board protocols of the
resolutions shall be produced, which shall be signed by the chairman
and
distributed to every member.
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|
5.
|
The
advisory board shall be competent to pass a resolution if a majority
of
its members are present or represented. Members of the advisory board
may
only be represented by other members of the advisory
board.
|
|
The
passing of a resolution shall be made in writing, by telex or at
the
meetings by a majority of the votes cast. In the event of an equality
of
votes the chairman shall have the casting
vote.
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6.
|
In
respect of the execution and the acceptance of declarations of intent
the
advisory board shall be represented by the chairman or, in case of
the
chairman being prevented, by the elected
proxy.
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|
7.
|
In
relation to third parties the members of the advisory board shall
maintain
and keep confidential at all times all of the concerns of the Fund
Company.
|
|
8.
|
The
partners meeting shall be entitled to remove any elected member of
the
advisory board at any time. It shall at the same time elect as many
members of the advisory board for the remaining term of office as
shall be
removed.
|
|
9.
|
Every
member of the advisory board shall receive a remuneration, which
shall be
paid annually in arrears, of USD 1,500 p.a. pro
rata temporis
for the time of the performance of their duties, and, where applicable,
plus VAT. Costs and expenses shall not be
compensated.
|
|
10.
|
The
members of the advisory board shall only be liable for wilful misconduct
(Vorsatz)
or
gross negligence (xxxxx
Fahrlässigkeit).
Claims for damages from the partnership relationship shall be subject
to a
limitation period of six months from the claimant obtaining knowledge
of
the act which entitles him to damages, and liability shall, however,
at
the latest be barred by limitation after five years from the performance
or omission of the act which entitles the claimant to
damages.
|
§
15
Duties
of the advisory board
The
advisory board shall attend to the interests of the limited partners and the
Fund Company as specified below and it shall perform any acts which are being
assigned to it by resolution of the partners meeting or by this Partnership
Agreement, in particular:
|
(a)
|
advice
to the general partner;
|
|
(b)
|
attend
to the interest of the limited partners in respect of their rights
of
control according to § 166 of the German Commercial Code (HGB);
|
|
(c)
|
co-operation
in transactions requiring its consent according to § 12 no.
4.
|
Within
the bounds of the duties assigned to it the advisory board shall have a
comprehensive right to information. The Managing Partner shall keep the advisory
board informed about all important events.
§
16
Financial
Statements, Distribution of the Net Annual Profits, Extraordinary Operating
Revenues and Expenses
|
1.
|
The
financial statements for the past fiscal year shall be prepared within
the
statutory periods. It shall be adopted by a Partners’ Resolution in
circulating proceedings. The statutory provisions and the generally
accepted accounting principles apply to the preparation of the balance
sheet as well as the preparation of the profit and loss statement.
The
financial statements shall be signed by the Managing Partner. The
financial statements shall be reviewed by an accountant appointed
by the
Partners by way of a resolution, or by an auditing firm appointed
in the
same manner. A copy of the financial statements or, alternatively,
a
summary has to be provided to all partners / trustees at the latest
together with the voting documents for the annual voting. The auditor
for
the fiscal year 2005 shall be determined by the Managing
Partner.
|
|
To
the extent legally permissible, all accounts and statements shall
be
prepared exclusively in USD currency and on the basis of German accounting
principles. The financial statements and the tax balance sheet shall
be
derived therefrom and shall be prepared in Euro currency pursuant
to the
statutory provisions.
|
|
For
all monetary claims and rights of a partner, the financial statements
in
USD shall exclusively be decisive, cf. § 3 no. 6.
|
|
2.
|
Prior
to distribution of the results, the Managing Partner shall receive
a lump
sum of USD 5,000.00 per annum plus a possible statutory turnover
tax for
his expenses inclusive of his costs to maintain his legal structure
and as
a remuneration for his personal liability, as well as for taking
over the
duties of the management. He shall receive his compensation even
in case
of losses. It shall be paid annually in arrear at 30
December.
|
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3.
|
Also
prior to the distribution of the results all levies and cost charges
pursuant to section 6 no. 4 and section 11 shall be reimbursed to
the
particular partner.
|
|
4.
|
On
30 June 2005 MIRAN Grundstücks-Verwaltungsgesellschaft mbH and MC Shipping
shall receive according to their participation as advance profit/loss
a
distribution of the surplus of money of the Fund Company generated
until
30 June 2005 not exceeding, however, 2.75 % of the limited partners’
capital contribution. The distribution shall also take place in the
event
of the Fund Company making a loss.
|
The
fiscal assignment of profits according to the tonnage tax shall take into
account the participation of the partners in 2005 in financial and time
respects.
|
5.
|
Apart
from this, the partners -
save as provided in § 17 -
participate in the profits and the losses of the Fund Company in
accordance with the ratio of their partnership interests (Capital
Account
I).
|
|
6.
|
The
Managing Partner is authorised to distribute the earned cash surplus
of
the Fund Company to the partners as long as no different resolution
is
passed by the partners and subject to the setting up of a cash reserve
in
an amount considered adequate by the Managing Partner. Save as provided
in
no. 5 and 7., the distributions/withdrawals shall be made irrespective
of
a profit/loss and according in relation to the respective partnership
interest. In principle, the distributions/withdrawals
shall be effected on an semi-annual basis on 20 January and 20 July
of
each year, and for the first time on 20 January 2006 or upon receipt
of
the proceeds from the sale of the ships,
respectively.
|
|
7.
|
In
case of an advance profit allocation according to § 17 no. 1 and 2, a
distribution/withdrawal by the partners in the amount of their respective
advance profit allocation portion shall be effected upon receipt
of the
proceeds from the sale of the ship.
|
|
8.
|
All
distributions/withdrawals shall generally be made in USD. However,
each
partner is entitled to request the exchange of his USD
distribution/withdrawal to Euro. The exchange shall be effected at
the
conversion rate attained by the Fund Company two banking days before
the
distribution. All costs incurred in connection with the
distribution/withdrawal and any exchange thereof shall be borne by
the
respective partner and will be set off against the distribution
amount.
|
|
9.
|
Without
further request, each trustee/limited partner has to notify the management
about any extraordinary operating revenues and expenses until January
31
of the year subsequent to a fiscal
year.
|
§
17
Profit
allocation at the Sale of Ships
|
1.
|
In
departure from § 16 no. 5, the net liquidity-surpluses resulting from the
sale of each of the ships specified in § 12 no. 3 (a) shall be allocated
to the partners pursuant to the provisions of no. 2 as advance profit
distribution if the next class renewal of a ship is not carried out
or is
rejected and the ship is sold (transfer of Xxxx of Sale) for scrapping
or
any other use within a period of 150 days before or 180 days after
the due
date of the class renewal. Pursuant to the current class certificates
of
the ships, the next class renewals will be due on 19 February 2008
(MS
Maersk Belawan), 13 September 2008 (MS Maersk Brisbane), 16 February
2009
(MS Ankara) and on 6 June 2009 (MS Maersk Barcelona). The reduction
of the
book values in respect to each ship will be allocated to the partners
in
accordance with the ratio of their partnership
interests.
|
|
2.
|
Of
the net sales proceeds (sales proceeds minus all costs, expenses
and
duties incurred in connection with the sale) 100% of amounts between
USD
3.9 mil. and USD 4.9 mil. and 40% for amounts higher than USD 4.9
mil.
shall be allocated to MC Shipping as advance profit distribution.
In case
the net sales proceeds are less than USD 3.9 mil., MC Shipping shall
not
be entitled to any advance profit distribution allocation. In case
the
capital contribution of MC Shipping (Capital Account I) has a nominal
value of less than USD 4.0 mil. at the time of the sale of the ship
(delivery of Xxxx of Sale), the advance profit distribution allocation
shall be reduced accordingly. The amount of the net sales proceeds
not
allocated to MC Shipping, minus the open balance of the loan in respect
to
such ship at the date of such sale shall be allocated amongst the
other
partners in accordance with the ratio of their respective partnership
interests as advance profit, if a surplus exists. The advance profit
distribution allocations shall also be effected in the case of a
loss of
the Fund Company in the relevant business
year.
|
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11
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Non-Binding
Working Translation
|
3.
|
In
the case of a sale of a ship not complying with the requirements
set forth
in no. 1, the profit allocation shall be effected pursuant to § 16 no. 5
in relation to the respective capital interest of the
partners.
|
§
18
Liability
to Pay Additional Contributions, Competition Restrictions, Duty of
Confidentiality
|
1.
|
An
obligation to pay additional contributions exceeding those set forth
in §
6 no. 4 and § 11 can only be created with the votes of all partners and
trustees. Liabilities of the limited partners vis-à-vis the creditors of
the partnership pursuant to §§ 171 et seq. HGB shall remain
unaffected.
|
|
2.
|
The
trustees/partners are not subject to any competition
restrictions.
|
|
3.
|
The
limited partners and trustees are subject to a duty of confidentiality
vis-à-vis unconcerned third parties with respect to all matters of the
partnership.
|
§
19
Dissolution
and Liquidation
|
1.
|
The
liquidation of the Fund Company is carried out by the managing director
or
the liquidator/s appointed by him. The managing director is free
to
appoint a natural person or a legal
entity.
|
|
2.
|
The
sales proceeds shall first be used to comply with payment obligations
of
the Fund Company vis-à-vis third party creditors, and payment obligations
of the Fund Company towards partners thereafter. The remainder shall
be
distributed to the partners (taking into account their capital accounts)
in relation to their interest in the assets of the company (Capital
Account I). A liability of the general partner for the compliance
with the
payment claims of the partners shall be
excluded.
|
|
3.
|
An
advance profit allocation according to § 17 at the time of the dissolution
of the Fund Company shall remain
unaffected.
|
|
4.
|
§
11 shall apply accordingly.
|
§
20
Costs
of the Agreement
The
costs
for the establishing of the Fund Company, for this Partnership Agreement and
its
implementation including all potentially accruing taxes of any kind shall be
borne by the Fund Company. This shall not apply for the costs for the
notarisation of the powers of attorney for the Commercial Register as well
as
for the cost for changes of the registration with the Commercial Register which
are the result of assignments or partial assignments of partnership interests
as
well as other dispositions with regard to partnership interests. Unless
otherwise set forth in this Agreement, these costs shall be borne by the
respective partner who has caused the changes. This shall also apply to changes
of the Commercial Register in the event of death.
§
21
Data
protection
Upon
acceptance of the declaration of accession, the Fiduciary Partner will store
all
data provided by the limited partners/trustees in its declaration of accession
together with potential other data in direct connection with the participation.
The Fiduciary Partner shall not provide information with regard to the
participation to persons other than the Fund Company, the Fiduciary Partner,
the
administrator of the Fund Company as well as its parent company, the
distribution partners, tax consultants, accountants, and the financing bank
unless the trustee/limited partner has explicitly consented in
writing.
The
trustee/limited partner is obliged to inform the Fiduciary Partner about any
changes of the information provided in the declaration of
accession.
The
trustee/limited partner has acknowledged and consents that within the scope
of
this Partnership Agreement, personal data will be stored and made use of in
data
processing facilities. Upon termination of the participation, all data will
be
deleted.
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12
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Working Translation
§
22
Invalidity
of Individual Clauses, Miscellaneous
|
1.
|
Should
a provision of this Agreement be or become void or invalid, the remaining
provisions shall remain unaffected. The void or invalid clause shall
be
replaced by provisions in compliance with to the applicable laws
and the
economic purpose of the void or invalid clause. In case of omissions,
a
provision shall apply that would have been agreed upon had the matter
been
thought about beforehand.
|
|
2.
|
Supplementary
agreements as well as amendments and additions to this contract including
these provisions have to be made in writing if they are not passed
by
partners’ resolutions in accordance with the provisions of this
Partnership Agreement. A fixed connection of this Partnership Agreement
to
amending resolutions/agreements or other contracts and declarations
-
especially those which are referred to herein - shall be
waived.
|
|
3.
|
As
far as this agreement makes a reference to indexes or interest reference
rates and these are not listed or published anymore, the substitute
index
or substitute interest reference rate provided for by law shall apply
or,
in case this does not exist, a substitute index or substitute interest
reference rate shall be chosen by the Managing Partner in good
faith.
|
|
4.
|
This
Partnership Agreement shall be subject to German law. Legal venue
shall be
Munich.
|
This
Partnership Agreement supersedes the Partnership Agreement of 4 January 2005in
its last version.
Xxxxxxxx,
00 Xxxxx, 0000
MUNIA
Mobilien-Verwaltungsgesellschaft mbH
MIRAN
Grundstücks-Verwaltungsgesellschaft mbH
TERTIA
Beteiligungstreuhand GmbH
-
13
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