Pg 1 of 5 1600 John F. Kennedy Boulevard, Suite 200 Philadelphia, PA 19103 Telephone: 215-279-9383 Facsimile: 215-279-9394 Counsel for DS-Rendite-Fonds Nr. 123 DS Sapphire GmbH & Co. Tankschiff KG UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: MARCO POLO SEATRADE B.V., et. al., Debtors. Chapter 11 Case No. 11-13634 (JMP) (Jointly Administered) OBJECTION OF DS-RENDITE-FONDS NR. 123 DS SAPPHIRE GMBH & CO. TANKSCHIFF KG TO DEBTOR S MOTION FOR ORDER AUTHORIZING REJECTION OF CERTAIN EXECUTORY CONTRACTS DS-Rendite-Fonds Nr. 123 DS Sapphire GmbH & Co. Tankschiff KG ( DS-123 ), by and through its undersigned counsel, hereby objects (the Objection ) to the Motion of Debtors for Entry of an Order Pursuant to Section 365(a) of the Bankruptcy Code Authorizing Rejection of Certain Executory Contracts [Doc. No. 238] (the Motion ). 1 DS-123 objects to the Motion to seek clarification on the meaning of rejection as it applies to the ELISEWIN under English law and to reserve certain rights of DS-123 as provided herein. In further support of its Objection, DS-123 respectfully states as follows: 1 Capitalized terms not expressly defined herein have the meaning ascribed to them in the Motion.
Pg 2 of 5 BACKGROUND 1. Cargoship Maritime B.V. ( CMB ), an above-captioned Debtor, and DS-123 are parties to a Charter Party dated March 16, 2007, as amended by Addendum No. 1 dated April 16, 2007, Addendum No. 2 dated May 3, 2007 and Addendum No. 3 dated March 28, 2008 (together, the Charter Party ). 2. Pursuant to the Charter Party, CMB chartered ELISEWIN from DS-123 for a period of sixty-four (64) months with options. 3. On April 16, 2007, Marco Polo Seatrade B.V. ( Marco Polo ), an above-captioned Debtor, executed a Charter Performance Guarantee guaranteeing CMB s performance and payment under the terms of the Charter Party. 4. On March 19, 2010 2, DS-123, CMB and Marco Polo executed an Agreement on Deferral of Charter Hire and Extraordinary Suspension of Charter Party, as amended by Addendum No. 1 (together, the Deferral Agreement and collectively with the Charter Party, the DS Contracts ), pursuant to which performance of the Charter Party was suspended and DS- 123 was enabled to directly charter the ELISEWIN to a certain pool of charterers, as more specifically described in the Deferral Agreement. 5. Pursuant to Section 41 of the Charter Party and Section 9 of the Deferral Agreement, the DS Contracts are governed and to be construed in accordance with the laws of England. 6. On July 29, 2011 (the Petition Date ), Marco Polo, CMB and their related affiliates and/or subsidiaries (collectively, Debtors ) each filed their respective voluntary petitions for relief under Chapter 11 of Title 11 of the United States Code ( Bankruptcy Code ) in the United 2 The Motion incorrectly lists the date of the Deferral Agreement as March 13, 2010.
Pg 3 of 5 States Bankruptcy Court for the Southern District of New York. The cases are being jointly administered. 7. On November 7, 2011, Debtors filed the Motion wherein it asked the Court to authorize the Debtors rejection of the Contracts, including the DS Contracts. BASIS FOR OBJECTION 8. While DS-123 does not object to the business judgment of the Debtors with regards to their decision to reject the Contracts, DS-123 seeks to clarify the meaning of Debtors rejection of the DS Contracts under English law and to reserve certain rights related thereto. 9. As detailed in the Motion, the Debtors desire to reject the DS Contracts and seek an order approving termination of the DS Contracts as of the date of the Motion (the Proposed Order ). 10. In order for DS-123 to assert a claim for damages and avail itself of other remedies due to Debtors rejection of the DS Contracts, including but not limited to an Administrative Expense Claim for post-petition sums due under the Contracts, DS-123 seeks to clarify that rejection by this Court amounts to a repudiation or renunciation of the DS Contracts as provided in English law. following: 11. Specifically, DS-123 requests modification of the Proposed Order to incorporate the Notwithstanding anything to the contrary in this Order, by rejection of the contracts of 16 March 2007 (as amended) and 19 March 2010 (the DS Contracts ) with DS-Rendite- Fonds Nr. 123 DS Sapphire GmbH & Co. Tankschiff KG ( DS-123 ) in relation to ELISEWIN, the Debtors are in anticipatory or actual breach of the DS Contracts, such breaches amounting to a repudiation or renunciation of the DS Contracts, entitling DS- 123 to assert: (i) damages resulting from such breach (ii) terminate the contracts and (iii) withdraw ELISEWIN from the service of the Debtors.
Pg 4 of 5 12. DS-123 asserts that the foregoing language is necessary to clarify and protect its rights with respect to the DS Contracts and ELISEWIN under applicable English law to the extend that DS-123 needs to interpret this Court s Order in another jurisdiction. 13. Moreover, DS-123 reserves its rights and fully intends to assert both an administrative claim and proof of claim against Debtors estates. This Objection and DS-123 s request for modification of the Proposed Order shall not be deemed a waiver of such rights. RESERVATION OF RIGHTS 14. DS-123 reserves its right under English law and under the Bankruptcy Code, including but not limited to the right to (a) amend, supplement, or otherwise modify this Objection, as necessary or proper; (b) raise such other and further objections; and (c) file any applicable claims against the Debtors estates. MEMORANDUM OF LAW 15. Based upon the nature and purpose of this Objection, DS-123 respectfully requests that the Court deem satisfied or, alternatively, waive any requirement of the filing of a separate memorandum of law. CONCLUSION 16. DS-123 respectfully requests that the Court (i) enter an Order (a) incorporating DS- 123 s proposed language in order to clarify its rights under English law as a result of Debtors rejection of the DS Contracts and (b) preserving DS-123 s rights as provided herein; and (ii) grant DS-123 such other and further relief as the Court deems just.
Pg 5 of 5 Dated: December 12, 2011 /s/ William J. Burnett 1600 John F. Kennedy Boulevard, Suite 200 Philadelphia, PA 19103 Telephone: 215-279-9383 Facsimile: 215-279-9394 -and- Gregor Harbs Rechtsanwalt LL.M. (Shipping Law - UCT) Ahlers & Vogel Schaarsteinwegsbrücke 2 20459 Hamburg Telephone: +49 (40) 37 85 88-0 Facsimile: +49 (40) 37 85 88-88 Counsel for DS-Rendite-Fonds Nr. 123 DS Sapphire GmbH & Co. Tankschiff KG
11-13634-jmp Doc 285-1 Filed 12/12/11 Entered 12/12/11 14:52:44 Certificate of Service Pg 1 of 1 1600 John F. Kennedy Boulevard, Suite 200 Philadelphia, PA 19103 Telephone: 215-279-9383 Facsimile: 215-279-9394 Counsel for DS-Rendite-Fonds Nr. 123 DS Sapphire GmbH & Co. Tankschiff KG UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: MARCO POLO SEATRADE B.V., et. al., Debtors. Chapter 11 Case No. 11-13634 (JMP) (Jointly Administered) CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 12 th day of December, 2011, a true and correct copy of the foregoing Objection of DS-Rendite-Fonds Nr. 123 DS Sapphire GmbH & Co. Tankschiff KG to Debtor s Motion for Order Authorizing Rejection of Certain Executory Contracts was served via regular first-class mail, postage prepaid, upon the parties listed below. Evan D. Flaschen, Esquire Robert G. Burns, Esquire Andrew J. Schoulder, Esquire BRACEWELL & GIULIANI LLP 1251 Avenue of the Americas, 49 th Floor New York, NY 10020 Dated: December 12, 2011 /s/ William J. Burnett Counsel for DS-Rendite-Fonds Nr. 123 DS Sapphire GmbH & Co. Tankschiff KG 1909911 v1