Share Transfer Agreement SCMP between Reederei Hartmann GmbH & Co. KG Leer / Germany (hereinafter referred to as “Hartmann”) and Suresh Capital Maritime Partners Germany GmbH Leer / Germany (hereinafter referred to as “SCMP”)
between
Reederei
Xxxxxxxx GmbH & Co. KG
Leer /
Germany
(hereinafter
referred to as “Xxxxxxxx”)
and
Suresh
Capital Maritime Partners Germany GmbH
Leer /
Germany
(hereinafter
referred to as “SCMP”)
WHEREAS
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(A)
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Xxxxxxxx
and SCMP are the sole limited partners of the following limited
partnerships:
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ATL
Offshore GmbH and Co. MS “Juist” KG
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ATL
Offshore GmbH and Co. MS “Norderney” KG
ATL
Offshore GmbH and Co. “Isle of Baltrum” KG
ATL
Offshore GmbH and Co. “Isle of Langeoog” KG
ATL
Offshore GmbH and Co. “Isle of Amrum” KG
ATL
Offshore GmbH and Co. “Isle of Sylt” KG
ATL
Offshore GmbH and Co. “Isle of Wangerooge” KG
ATL
Offshore GmbH and Co. “Isle of Neuwerk” KG
ATL
Offshore GmbH and Co. “Isle of Usedom” KG
(hereinafter
together referred to as the “SPVs” and individually as “SPV” or as “SPV Juist”;
“SPV Norderney”, “SPV Baltrum”, SPV “Langeoog”, “SPV Amrum”, “SPV Sylt”, “SPV
Wangerooge”, “SPV Neuwerk” and “SPV Usedom”; and
Share_Transfer_Agreement_SCMP
2
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(B)
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the
amount of liability coverage agreed in the partnership agreements for each
of SPV Juist, SPV Norderney, SPV Baltrum, SPV Langeoog is € 12,000,000.00
(Euros twelve million) (hereinafter referred to as the “Agreed Equity A”);
and
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(C)
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the
amount of liability coverage agreed in the partnership agreements for each
of SPV Amrum, SPV Sylt, SPV Wangerooge and SPV Neuwerk is € 13,500,000.00
(Euros thirteen million five hundred thousand) (hereinafter referred to as
the “Agreed Equity B”); and
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(D)
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the
amount of liability coverage agreed in the partnership agreement of SPV
Usedom is € 38,000,000.00 (Euros thirty eight million) (hereinafter
referred to as the “Agreed Equity C” and together with the Agreed Equity A
and Agreed Equity B referred to as the “Agreed Equity”);
and
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(E)
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Xxxxxxxx
agreed to contribute a liability coverage as a limited partner in the
amount of 25 % (twenty five per cent) of the Agreed Equity (hereinafter
referred to as the “Xxxxxxxx Share”), i.e. € 3,000,000 in the case of
Agreed Equity A, € 3,375,000 in the case of Agreed Equity B and €
9,500,000 in the case of Agreed Equity C;
and
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(F)
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SCMP
agreed to contribute a liability coverage as a limited partner in the
amount of 75 % (seventy five per cent) of the Agreed Equity (hereinafter
referred to as the “SCMP Share”); i.e € 9,000,000 in the case of Agreed
Equity A, € 10,125,000 in the case of Agreed Equity B and € 28,500,000 in
the case of Agreed Equity C; and
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(G)
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the
SPVs are incorporated under the Laws of the Federal Republic of Germany
having their registered office at Xxxx Xxxxxx 00, 00000 Xxxx, Xxxxxxx and
are represented by their personally liable partner ATL Offshore GmbH
(hereinafter referred to as “ATL”);
and
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(H)
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ATL
has negotiated and obtained one loan (hereinafter referred to as the
“Loan”) for and on behalf of the SPVs and three further limited
partnerships represented by ATL named ATL Offshore GmbH and Co. “Isle of
Fehmarn” KG, ATL Offshore GmbH and Co. “Isle of Xxxxxx” KG and ATL
Offshore GmbH and Co. “Isle of Memmert” KG (hereinafter referred to as the
“SCMP I-B SPVs”) from Norddeutsche Landesbank Girozentrale (hereinafter
referred to as “NordLB”) under a Loan Agreement dated 19th
December, 2008 (hereinafter referred to as the “Loan Agreement”) in order
to finance the acquisition of in total twelve anchor handling tug supply
vessels presently built by Fincantieri Shipyard, Italy (hereinafter
referred to as the “Vessels” or individually as the “Vessel”) one for each
SPV and each of the SCMP I-B SPVs ;
and
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3
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(H)
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one
condition under the Loan Agreement is that SCMP has paid € 37,950,000 as
equity in total to the SPVs directly or indirectly through a trustee and
the full amount of such equity is at the free and undisturbed disposal of
the relevant SPV and payment of additional equity in the amount of €
40,970,000 is secured by a guarantee acceptable to NordLB before drawdown
of any tranche of the Loan; and
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(I)
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Xxxxxxxx
agreed to provide a corporate guarantee in the amount of € 40,700,000.00
(Euros forty million seven hundred thousand) (hereinafter referred to as
the “Corporate Guarantee”) in favor of NordLB as security of the payment
of the SCMP Share into each SPV’s bank account;
and
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(J)
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the
parties whish to agree in this Agreement the procedure upon which Xxxxxxxx
may increase its limited share in the SPVs if the Corporate Guarantee is
either partly or totally drawn.
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NOW
THEREFORE and in consideration of the foregoing recitations, the mutual
covenants hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, it is agreed as
follows:
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1.
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SCMP
Share
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1.1
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SCMP
undertakes to collect funds as equity for the SPVs from its customers.
SCMP shall use these funds exclusively for the capitalization of the SPVs
up to the amount of the SCMP Share. SCMP will provide Xxxxxxxx with a
monthly written report about the status of the collected payments credited
as SCMP Share.
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1.2
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Xxxxxxxx
acknowledges that such funds are made available by SCMP as SCMP Share by
means of loans granted to SCMP (hereinafter referred to the “SCMP Equity
Loans”) against a cash collateral deposited with the respective bank
granting the loans (hereinafter referred to as the “SCMP Equity Finance
Bank”). In order to secure that the funds collected are solely used for
the capitalization of the SPVs via the SCMP Equity Loans, the funds
collected shall be credited to an escrow account of the lawyers Xxxxxx
& Xxxxx in Hamburg (hereinafter referred to as the “Escrow Account”).
Xxxxxx & Xxxxx is hereby irrevocably instructed to release amounts
from the escrow account, provided sufficient cover is on the account,
either
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4
| (a) upon receipt of a drawdown note under the SCMP Equity Loans identifying theamount to be remitted as cash collateral, the bank account to which the amount shallbe transferred and the acknowledgement of the SCMP Equity Finance Bank that upon receipt of the amount a corresponding amount under the SCMP Equity Loans is remitted to the individual SPV as SCMP Share, or | |
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(b)
upon receipt of joint written instructions of SCMP and Xxxxxxxx including
theamount and the bank account to which the funds shall be
remitted.
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1.3
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Xxxxxxxx
acknowledges SCMP has accrued interest on equity advanced to each SPV
which is due and payable at delivery of each
vessel.
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1.4
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ATL
is responsible for conducting the business of each SPV according to the
principles of a reasonable businessman which includes the calling in of
the Agreed Equity when necessary for the operation of the
SPVs. The parties hereto confirm that if ATL deems it necessary
to call in Agreed Equity for the operation of the SPVs then at the latest
ninety days after delivery of the Vessel by the shipyard to SPV Juist and
SPV Norderney and upon delivery of a Vessel by the shipyard to SPV
Baltrum, SPV Langeoog, SPV Amrum, SPV Sylt, SPV Wangerooge, SPV Neuwerk,
and SPV Usedom, the SCMP Share shall be paid into the bank account of the
respective SPVs (hereinafter referred to as the “SCMP Equity Payment
Date”).
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2.
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Corporate
Guarantee fee
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SCMP
shall pay Xxxxxxxx for the provision of the Corporate Guarantee a fee of
two per cent (2,0 %) per annum of the average guaranteed amount in each
month of a year. The average guaranteed amount is calculated as
follows:
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the
amount outstanding at the 1st
day of the month plus the amount outstanding at the last day of that month
divided by two.
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The
fee is due for payment at the first day of the following
month.
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Any
costs and expenses incurred by Xxxxxxxx in connection with the provision
of this Corporate Guarantee shall be borne by
SCMP.
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3.
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Distribution
of Profits or Dividends and Payment of
Interest
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3.1
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SCMP
hereby accepts that although dividends may be declared and paid to SCMP as
a limited partner of the SPVs, SCMP shall use such funds received
exclusively to fund any remaining unfunded SCMP Share to achieve full
share capitalization of the SPVs until payment of the SCMP Share in all
SPVs is effected by payment of funds either by SCMP or by Xxxxxxxx
according to this Agreement.
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SCMP
hereby accepts that although accrued interest on equity paid in advance of
delivery of the respective Vessel shall be paid to SCMP as a limited
partner of the SPVs at delivery of a Vessel, SCMP shall use such funds
received exclusively to repay outstanding loans related to the SPVs at the
SCMP Equity Finance Bank.
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3.2
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Ten
(10) calendar days prior to the SCMP Equity Payment Date, ATL will
establish an account for all SPVs in which ATL will propose a distribution
of dividends or other distributions of revenue or capital nature to the
limited partners taking however into consideration a liquidity reserve for
the SPVs covering the payment obligations of the SPVs under the Loan
Agreement and for the operational expenses of the respective Vessel for a
period that satisfies the covenants of the Loan Agreement or longer if
deemed prudent by ATL in conducting the business of the SPVs as a
reasonable businessman. Xxxxxxxx and SCMP hereby agree in
advance to the distribution assessed by ATL under the condition that the
payment due to SCMP is effected to the next SPV whose Vessel is to be
delivered and where the SCMP Share has not been fully funded. In case of
an excess of such a distribution of dividends such excess shall be used in
the same order and procedure for the remaining SPVs whose SCMP Share is
not fully funded at that time.
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4.
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Transfer
of Limited Shares
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4.1
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Should
SCMP not have paid the SCMP Share until the SCMP Equity Payment Date as
defined in Clause 1.4 hereof either by funds collected or by distribution
of dividends as described in Clause 3 hereof or by distribution of accrued
interest as described in Clause 1.3 hereof, the outstanding balance of the
SCMP Share of the specific SPV whose Vessel is delivered is paid by
Xxxxxxxx to the account of the specific SPV with NordLB up to the total
maximum amount of the Corporate Guarantee at the first banking day
following the SCMP Equity Payment Date. Corresponding to that payment SCMP
hereby irrevocably assigns the SCMP Share in the specific SPV at their
nominal value to Xxxxxxxx up to the amount actually paid by Xxxxxxxx
(hereinafter referred to the “Transferred SCMP Shares”). Xxxxxxxx accepts
this assignment.
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4.2
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In
any event Xxxxxxxx shall not own more than fifty per cent (50 %) of the
Agreed Equity in each SPV, i.e. € 6,000,000.00 (Euros six million) in the
case of Agreed Equity A, € 6,750,000.00 (Euros six million seven hundred
fifty thousand) in the case of Agreed Equity B and € 17,500,000.00 (Euros
seventeen million five hundred thousand) in the case of Agreed Equity C
(hereinafter together referred to as the “Share Threshold”). Accordingly
Xxxxxxxx can only increase the Xxxxxxxx Share in each SPV by twenty five
per cent (25 %) of the Agreed Equity by means of SCMP Shares (hereinafter
referred to as the “Available Scope of
Shares”).
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4.3
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In
case the amount outstanding of the SCMP Share in any SPV exceeds the Share
Threshold, only shares up to the Available Scope of Shares in that SPV are
transferred to Xxxxxxxx. For the payment in excess of the Share Threshold
(hereinafter the “Excess Payment”), limited shares in all other SPVs are
transferred to Xxxxxxxx at nominal value pari passu, provided
the Share Threshold in these other SPVs is not
exceeded.
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4.4
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In
order to allocate the amount of limited shares which are transferred by
SCMP to Xxxxxxxx at the SCMP Equity Payment Date, ATL shall establish an
account at the SCMP Equity Payment Date in which for each
SPV
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(a)
the outstanding amount of the SCMP Share is
ascertained,
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(b)
the amount of Excess Payment is
recorded.
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Upon
such account being established, the total amount of Excess Payment is
allocated pari
passu to the SPVs (hereinafter referred to as the “Excess Payment
Share”) up to the Share Threshold. If the Excess Payment Share allocated
to a SPV would exceed the Share Threshold of that SPV (hereinafter
referred to as the “Second Excess Payment”), the Second Excess Payment
shall be allocated to the SPVs remaining up to their Share Threshold
(hereinafter referred to as the “Second Excess Payment Share”). This
allocation procedure shall continue until Xxxxxxxx has received limited
shares in the SPV at nominal value for its payment of the outstanding
amount of the SCMP Share. The aforesaid procedure shall apply no matter
whether a SPV took delivery of its respective Vessel or is waiting for
delivery of its Vessel by Fincantieri
Shipyard.
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The
status of capitalization of the SPVs with the Agreed Equity as of the date
of this Agreement can be derived from the chart of equity payments
attached hereto as Exhibit A.
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4.5
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SCMP
warrants that until elapse of the SCMP Equity Payment Date the rights
deriving from its participation as limited partner in the SPVs are not
attached, pledged of in any other way encumbered or
assigned.
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4.6
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Xxxxxxxx
intends its direct entry of the Transferred SCMP Shares in the corporate
register and undertakes to submit all necessary documents in relation
thereto. SCMP hereby irrevocably declares its consent to the transfer
according to this Agreement and irrevocably instructs Dr. Jan-Xxxx
Xxxxxxxx in its capacity as lawyer of Xxxxxx & Xxxxx in Hamburg or any
other lawyer of Xxxxxx & Xxxxx having power of representation, to make
the necessary declarations to the corporate register under the existing
notarized Commercial Register Power of Attorney forthwith in order to
record the Transferred SCMP Shares in Xxxxxxxx’x name as ascertained by
ATL according to this Agreement.
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4.7
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The
parties hereto agree that the Transferred SCMP Shares and the thereto
connected rights and obligations are transferred in rem at the date of
entry into the records of the corporate register. The economical transfer
of the Transferred SCMP Shares is effected with effect from the day on
which payment is made by Xxxxxxxx to the SPV accounts with NordLB. From
this day until the recording of Transferred SCMP Shares in the corporate
register SCMP shall hold the Transferred SCMP Shares as trustee for and on
behalf of Xxxxxxxx as trustor.
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4.8
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ATL
hereby consents to the transfer of SCMP Shares to Xxxxxxxx according to
this Agreement.
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5.
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Miscellaneous.
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5.1
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All
changes of this Agreement have to be made in writing in such a form that
written form on the same document is a condition of validity; this applies
also to an agreement changing the written form
requirement.
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5.2
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Should
any of the provisions of this Agreement be or become invalid, the validity
of the rest of the Agreement shall not be affected. The parties agree to
substitute the invalid provision by a valid provision which covers the
contents of the invalid provision in the best legal and economic
way.
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5.3
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The
costs and expenses of the required declarations to the corporate register
are borne by the respective SPV. Any further costs and expenses of the
parties shall be borne by SCMP.
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5.4
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This
Agreement shall rank pari passu to other
instruments granted in favour of Xxxxxxxx securing the outstanding
indebtedness under the Corporate
Guarantee.
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5.5
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This
Agreement is governed and construed in accordance with German law. 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
(GMAA-Arbitration) in Hamburg.
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8
SIGNED
BY:
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/S/
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/S/
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Reederei
Xxxxxxxx GmbH & Co. KG
Name:
Xx. Xxxxx Xxxxxxxx
Title:
Managing Director
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Suresh
Capital Maritime Partners
Germany
GmbH
Name:
Siva Suresh
Title:
Managing Director
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/S/
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/S/
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ATL
Offshore GmbH for and on behalf
of
the SPVs
Name:
Xx. Xxxxx Xxxxxxxx
Title:
Managing Director
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Acknowledged
by
Xxxxxx
& Xxxxx
Dr.
Jan-Xxxx Xxxxxxxx
Schaarsteinwegsbrücke
2; 20459 Hamburg
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ADDENDUM
NO. I
to
signed
in February 2009
between
Reederei
Xxxxxxxx GmbH & Co. KG
Leer
I Germany
(hereinafter
referred to as "Xxxxxxxx")
and
Suresh
Capital Maritime Partners Germany GmbH
Leer
I Germany
(hereinafter
referred to as "SCMP")
WHEREAS
(A)
Xxxxxxxx and SCMP are the sole limited partners of the following limited
partnerships:
ATL
Offshore GmbH and Co. MS "Juist" KG
ATL
Offshore GmbH and Co. MS "Norderney" KG
ATL
Offshore GmbH and Co. "Isle of Baltrum" KG
ATL
Offshore GmbH and Co. "Isle of Langeoog" KG
ATL
Offshore GmbH and Co. "Isle of Amrum" KG
ATL
Offshore GmbH and Co. "Isle of Sylt" KG
ATL
Offshore GmbH and Co. "Isle of Wangerooge" KG
ATL
Offshore GmbH and Co. "Isle of Neuwerk" KG
ATL shore
GmbH and Co. "Isle of Usedom" KG
(hereinafter
together referred to as the "SPVs" and individually as "SPV" or as "SPV Juist";
"SPV Norderney", "SPV Baltrum", SPV "Langeoog", "SPV Amrum", "SPV Sylt", "SPV
Wangrooge", "SPV Neuwerk" and "SPV Usedom"; and
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(B)
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Xxxxxxxx
agreed to assign a limited partner share in each SPV in the amount of EUR
10,000 (in words: Euro ten thousand) to UOS United Offshore Support GmbH
& Co. KG (hereinafter referred to as "UOS") and a further limited
partner share in each SPV in the same amount to Xxxxxxxx Offshore GmbH
(hereinafter referred to as "Xxxxxxxx Offshore");
and
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(C)
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Xxxxxxxx
agreed to a purchase option in favor of each UOS and Xxxxxxxx Offshore by
which a further part up to the amount of EUR 170,000 (in words Euro one
hundred seventy thousand) of its limited partner share can be purchased
after delivery of the respective vessel to each respective SPV;
and
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Share_Transfer_Agreement_SCMP
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(D)
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the
parties whish to agree in this Addendum No.1 the amendments to the Share
Transfer Agreement in view of the new limited partners UOS and Xxxxxxxx
Offshore.
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NOW
THEREFORE and in consideration of the foregoing recitations, the mutual
covenants hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, it is agreed as
follows:
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1.
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The
Xxxxxxxx liability coverage as a limited partner in each of the following
SPVs is reduced by in total € 20,000 (in
words Euro twenty thousand).
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2.
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The
assignment of limited shares in the SPVs by SCMP to Xxxxxxxx agreed in
Article 4 of the Share Transfer Agreement shall remain unaffected by the
reduction of Xxxxxxxx'x limited partner
share.
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3.
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For
the purpose of reaching the Share Threshold agreed in Article 4.2 of the
Share Transfer Agreement all limited partner shares of UOS and Xxxxxxxx
Offshore including those acquired late under the purchase option referred
to in recital (C) above are considered to be Xxxxxxxx limited partner
shares.
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4.
UOS and Xxxxxxxx hereby consent to the assignment of limited shares from
SCMP to Xxxxxxxx as agreed in the Share Transfer Agreement and waive their
right of preemption granted to them in the partnership agreement of
each SPV.
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5.
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UOS
and Xxxxxxxx Offshore hereby acknowledge the contents of the Share
Transfer Agreement and shall not undertake any action whatsoever which
could affect the validity and enforcement of the Share Transfer
Agreement.
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6.
All other terms and conditions of the Share Transfer Agreement shall remain
unaffected.
3
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Place:
Rapazzo
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Date: 20 May
2009
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/s/
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/s/
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Reederei
Xxxxxxxx GmbH & Co. KG
Name:
Xx. Xxxxx Xxxxxxxx
Title:
Managing Director
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Suresh
Capital Maritime Partners
Germany
GmbH
Name:
Siva Suresh
Title:
Managing Director
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/s/
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/s/
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ATL
Offshore GmbH for and on behalf
of
the SPVs
Name:
Xx. Xxxxx Xxxxxxxx
Title:
Managing Director
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UOS
United Offshore Support
GmbH
& Co. KG
Name:Xxxxx
Xxxxxxxx
Title:Managing
Director
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/s/
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/s/
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Xxxxxxxx
Offshore GmbH
Name:Xxxxx
Xxxxxxxxx
Title:Managing
Director
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Acknowledged
by
Xxxxxx
& Xxxxx
Dr.
Jan-Xxxx Xxxxxxxx
Schaarsteinwegsbrücke
2; 20459 Hamburg
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Addendum
No I Share Transfer Agreement 20090513
ADDENDUM
NO. 2
to
Share
Transfer Agreement SCMP
signed
in February 2009
as
amended by Addendum No. I dated 20th May,
2009
between
Reederei
Xxxxxxxx GmbH & Co. KG
Leer /
Germany
(hereinafter
referred to as “Xxxxxxxx”)
and
Suresh
Capital Maritime Partners Germany GmbH
Leer /
Germany
(hereinafter
referred to as “SCMP”)
and
UOS
United Offshore Support GmbH & Co. KG
Leer /
Germany
(hereinafter
referred to as “UOS”)
and
Xxxxxxxx
Offshore GmbH
Leer /
Germany
(hereinafter
referred to as “Xxxxxxxx Offshore”)
WHEREAS
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(A)
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SCMP
requested to extend the period within which it had to remit its amount of
liability coverage (hereinafter “SCMP Share”) in ATL Offshore GmbH &
Co. MS “Juist” KG ( hereinafter “SPV Juist”) according to clause 1.4 of
the Share Transfer Agreement from ninety (90) days to a longer period from
delivery of the MV “UOS ATLANTIS”,
and
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Addendum
No.2 Share Transfer Agreement 20090608.doc
2
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(B)
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Xxxxxxxx
agreed not to exercise its option to effect payment of the outstanding
SCMP Share in SPV “Juist” until the new SCMP Equity Payment Date for SPV
Juist, and
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(C)
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the
parties whish to agree in this Addendum No. 2 the amendments to the Share
Transfer Agreement and the status of SCMP Share
payments.
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NOW
THEREFORE and in consideration of the foregoing recitations, the mutual
covenants hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, it is agreed as
follows:
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1.
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All
definitions used herein shall have the same meaning as in the original
Share Transfer Agreement.
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2.
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The
new SCMP Equity Payment Date for SPV Juist according to clause
1.4 of the Share Transfer Agreement is agreed to be Friday,14th August,
2009.
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3.
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Xxxxxxxx
shall not be entitled to exercise its rights described in clause 4 of the
Share Transfer Agreement with regard to SPV Juist before the elapse of the
date mentioned und clause 1 hereof.
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4.
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For
the purpose of clarifying the status of capitalization of the SPVs with
Agreed Equity in February 2009 when the Share Transfer Agreement was
signed and at the date falling ninety (90) days after delivery of “UOS
ATLANTIS” to SPV Juist, i.e. 28th
May 2009 (the “Original SCMP Equity Payment Date SPV Juist”), two tables
were prepared by ATL which are attached hereto as Exhibit A, contents of
which is acknowledged by all parties
hereto.
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5.
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All
other terms and conditions of the Share Transfer Agreement shall remain
unaffected.
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Addendum
No.2 Share Transfer Agreement 20090608.doc
3
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Place_______Leer__________________
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Date___18th__ June
2009
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SIGNED
BY:
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/s/
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/s/
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Reederei
Xxxxxxxx GmbH & Co. KG
Name:
Xx. Xxxxx Xxxxxxxx
Title:
Managing Director
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Suresh
Capital Maritime Partners
Germany
GmbH
Name:
Siva Suresh
Title:
Managing Director
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/s/
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/s/
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ATL
Offshore GmbH for and on behalf
of
the SPVs
Name:
Xx. Xxxxx Xxxxxxxx
Title:
Managing Director
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UOS
United Offshore Support
GmbH
& Co. KG
Name:Xxxxx
Xxxxxxxx
Title:Managing
Director
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/s/
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/s/
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Xxxxxxxx
Offshore GmbH
Name:Xxxxx
Xxxxxxxxx
Title:Managing
Director
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Acknowledged
by
Xxxxxx
& Xxxxx
Dr.
Jan-Xxxx Xxxxxxxx
Schaarsteinwegsbrücke
2; 20459 Hamburg
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Addendum
No.2 Share Transfer Agreement 20090608.doc
