Loan Agreement
between
1. Reederei Xxxxxxxx GmbH & Co.
KG,
a company
organised and existing under the laws of Germany, with registered office at Xxxx
Xxxxxx 00 – 00000 Xxxx, Xxxxxxx, represented by the general partner Reederei
Xxxxxx Xxxxxxxx Verwaltungsgesellschaft mbH, same represented by the managing
director, Xx. Xxxxx Xxxxxxxx
-
hereinafter referred to as “RHKG” -
and
2. Suresh
Capital Maritime Partners Germany GmbH
a company
organised and existing under the laws of Germany, with registered office at
Xxxxxxxxxxxxxx 00, 00000 Xxxx, Xxxxxxx, represented by one of its managing directors, Mr. Xxxxx Xxxxxx
– hereinafter referred to as the “SCMP”
–
WHEREAS
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1.
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RHKG
and SCMP are both limited partners in ATL Offshore GmbH & Co. “ISLE OF
LANGEOOG” KG, (the “KG”), with a subscribed share-capital of
EUR 2,980,000 on part of RHKG and EUR 9,000,000 on part of SCMP;
and
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2.
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SCMP
has not and remains unable to provide to the KG the part of the
subscripted share-capital; namely € 5.350.000 have not been paid in, up to
the date of signature of this agreement;
and
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3.
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the
KG has entered into a shipbuilding contract dated November 3, 2006, for
the construction of one anchor handling tug supply vessel with FINCANTIERI
- Cantieri Navali Italiani S.p.A. of Genoa, Italy (hereinafter “FINC”),
bearing FINC’s hull number 6163
(the “Vessel”). Such contract, as may have been from time to time altered
or amended, is hereinafter referred to as the “Shipbuilding Contract”;
and
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4.
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the
KG has, together with 11 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
Vessel (“Nord/LB Senior Loan Facility”);
and
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5.
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there
are on-going discussions between the KG and Nord/LB about an increase in
Nord/LB’s loan commitment, such increase being, inter alia, subject to an
increase of a SACE-guarantee having been provided in respect of the
existing Nord/LB Senior Loan Facility (the “Nord/LB Loan Increase”);
and
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6.
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WHEREAS
it is a condition precedent of the Nord/LB Senior Loan Facility that the
equity in the KG is fully paid up prior to disbursement of the relevant
loan tranche to the KG; and
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7.
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RHKG
is prepared to provide additional funds in order to allow for this
condition to be fulfilled; and
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8.
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In
order to be able to provide such funds, RHKG has entered into a loan
agreement with FINC dated 27th
January, 2010 as from time amended (the
“FINC-Loan”).
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THE
PARTIES THEREFORE NOW AGREE AS FOLLOWS:
A.
Loan
from RHKG to SCMP
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X.
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Xxxxx and Purpose of
the SCMP-Loan
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1.
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RHKG
grants a loan to SCMP in the amount of € 5,350,000 (in words: Euro five
million three hundred fifty thousand) (the “SCMP
Loan”).
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2.
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The
SCMP Loan is intended to allow SCMP to make payment of the share-capital
to the KG. The SCMP-Loan shall therefore be paid within 2 banking days of
signing hereof for and on behalf of SCMP directly to the
bank-account of the KG set out in cl. C. 1. below, such payment being
explicitly designated as payment of share-capital for SCMP.
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II.
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Interest on the
SCMP-Loan
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1.
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The
SCMP 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 RHKG 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
SCMP-Loan
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1.
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The
SCMP-Loan is granted for a fixed period of 5 (five) years after signing of
this Agreement. The SCMP-Loan shall be repaid by SCMP to RHKG 60 month
after signing hereof.
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2.
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The
SCMP-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, in its sole judgment, has
accumulated sufficient funds to make payment of all or part of the
outstanding amounts under the SCMP Loan;
or
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2.2
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in
case of a sale or actual or agreed total loss of the Vessel; within 5
(five) banking days after the purchase price from any buyer of the Vessel
has been paid or any substitute from any insurance xxx/xx X&X has been
paid.
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2.3
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in case the Nord/LB Loan increase can be
achieved, SCMP shall use its best endeavours (i) to have the KG – in a
legally admissible way - pay out to SCMP an amount equivalent to the
SCMP-Loan, in which case SCMP is obliged to repay the SCMP-Loan
immediately to RHKG or, (ii) to make a voluntary early repayment of the
SCMP-Loan by other available means.
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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 RHKG at least 10 banking days in
advance.
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IV.
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Securities
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Payment
of the SCMP-Loan of EUR 5,350,000 (Euro five million three hundred fifty
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
RHKG:
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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 a share-capital of
EUR 5,350,000 from the KG, provided that in case of partial re-payment of
the loan RHKG 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 RHKG pledge the shares held by SCMP in the KG up to a nominal
value of € 5.350.000,00; for purposes
hereof, the parties agree that upon any exercise by RHKG 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 reasonable 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 RHKG’s security
interest.
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3.
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To the knowledge of SCMP, KG has not any
dividend restriction other than with NORD/LB or the Share Transfer
Agreement in place 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 GAAP
to RHKG 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 RHKG 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 SCMP-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 SCMP-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
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 RHKG 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
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 the KG
holding a minimum of fifty (50) percent of the KG;
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, RHKG shall be entitled by written notice to the
SCMP to declare the SCMP-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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In
addition to the terms set out above, under the FINC-Loan RHKG has assumed
50% of the outstanding debt of FINC towards H Clarkson & Company
Limited (“Clarksons”) concerning the brokerage agreement relating to the
Vessel (Hull No. 6163), pursuant to § 415 of the German Civil Code
(“BGB”). In case Clarksons does not agree to the assumption of debt, RHKG
is obliged to satisfy Clarksons in time pursuant to § 415 III
BGB.
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2.
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If
and insofar as RHKG has to make any payment to either Clarksons or FINC
due to this assumption of debt, SCMP shall indemnify RHKG for 75 % of all
monies advanced or disbursed.
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3.
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RHKG
has further undertaken the following obligation toward FINC under the
FINC-Loan:
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“At
Xxxxx 00, 0000 XXXX will obtain on its own cost an updated fair market
evaluation of any goods encumbered with a security for the FINC-Loan provided by
an internationally well reputed independent appraiser or ship broker. The
evaluation is to be made without physical inspection of the good and on the
basis of an arms-length transaction between willing buyer and willing
seller.
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If
the fair market value assessed in accordance with the aforementioned
evaluation shall be less than 120% of the aggregate outstanding FINC-Loan
including interest, if unpaid (“Shortfall”), RHKG covenants to furnish
FINC with an additional security for the purpose of remedying the
Shortfall. The fair market value of the additional security shall be
determined in the same method as the other goods provided as security and
shall not be less than the
Shortfall.“
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If and
insofar as RHKG has to make any payment or other arrangements to FINC due to the
above obligation, SCMP shall indemnify RHKG for all monies advanced or disbursed
or costs or fees incurred or otherwise.
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4.
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SCMP
shall reimburse RHKG for the costs of any security provided in respect of
the FINC-Loan, including but not limited to the costs of registration of
any mortgages and the costs of any guarantees provided as security to FINC
by RHKG or third parties at RHKG’s request and
costs.
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5.
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SCMP
shall re-imburse RHKG for any cost of legal advice in relation to the
FINC-loan and this agreement, including but not limited to disbursements,
taxes, duties etc.
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6.
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An
invoice provided by RHKG and supported by relevant vouchers or other
documentation of disbursements shall be conclusive evidence of the amounts
payable by SCMP pursuant to this section
C.
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7.
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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.
Final Provisions
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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 account of the
KG:
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Norddeutsche
Landesbank Girozentrale,
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Hannover/Germany,
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Bank
Code: 250 500 00
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IBAN:
DE 39 0000 0000 0000 0000 04
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2.
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Any
payment to RHKG under the SCMP-Loan shall be made to the following bank
account of RHKG:
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Ostfriesische
Volksbank eG,
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Leer/Germany,
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BIC:
XXXXXXX0XXX
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IBAN:
DE 23 285 900 75 000 1799 000
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II. Severability
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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Reederei
Xxxxxxxx GmbH & Co. KG
Attn: Xx.
Xxxxx Xxxxxxxx
Xxxx
Xxxxxx 00
00000
Xxxx
Xxxxxxx,
Tel. +49
– 491 - 999700
Fax: +49
– 491 -9997060
Email:
x.xxxxxxxx@xxxxxxxx-xx.xxx
Suresh
Capital Maritime Partners Germany GmbH
c/o III
to I IMS Holdings
Attn.:
Xxxxx Xxxxxx
0000
Xxxxxxxx Xxxx - Xxxxx 000,
00000
Xxxxxx,
Xxxxxx
Xxxxxx of America
Tel.: +
0 000 000 0000 ;
E-mail:
Xxxxxxx@0xx0xxx.xxx
or any
other address notified by a party to all other parties.
Signed
this 10th day of
February, 2010
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/s/ Xxxxx
Xxxxxx
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/s/ Xx.
Xxxxx Xxxxxxxx
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Xxxxxx
Capital Maritime Partners Germany GmbH
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Reederei
Xxxxxxxx GmbH & Co. KG
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By:
Xxxxx Xxxxxx
Title: Managing
Director
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By:
Xx. Xxxxx Xxxxxxxx
Title: Managing
Director
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