UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
FORM 6-K/A
REPORT OF FOREIGN PRIVATE ISSUER
Pursuant to Rule 13a-16 or 15d-16 under
the Securities Exchange Act of 1934
For the month of May, 2012
COMMISSION FILE NUMBER: 001-33373
CAPITAL PRODUCT PARTNERS L.P.
(Translation of registrant’s name into English)
3 Iassonos Street
Piraeus, 18537 Greece
(Address of principal executive offices)
Indicate by check mark whether the Registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
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Form 20-F þ
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Form 40-F o
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Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): o
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): o
Indicate by check mark whether the registrant by furnishing the information contained in this Form is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934. Yes o No þ
(If “Yes” is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b): 82-________.)
EXPLANATORY NOTE
The Explanatory Note to the Form 6-K deemed furnished to the Securities and Exchange Commission on May 23, 2012 with respect to the completion of Capital Product Partners L.P.’s issuance and sale of Class B Convertible Preferred Units (the “Original Filing”) should be disregarded in its entirety. For the avoidance of doubt, the Original Filing has no effect on the Report on Form 6-K/A deemed furnished to the Securities and Exchange Commission on May 14, 2012 with respect to a press release of Capital Product Partners L.P. The remainder of the Original Filing is identical to this Report on Form 6-K/A.
Item 1 – Information Contained in this Form 6-K/A Report
On May 22, 2012, Capital Product Partners L.P. (the “Partnership”) completed its issuance and sale of 14,444,443 Class B Convertible Preferred Units (the “Class B Units”) to certain investors (the “Purchasers”), including the Partnership’s Sponsor, Capital Maritime & Trading Corp., pursuant to the Class B Convertible Preferred Unit Subscription Agreement, dated as of May 11, 2010 (the “Subscription Agreement”). The net proceeds, together with part of the Partnership’s cash balances, were used to repay debt of $149.6 million across the Partnership’s three credit facilities. In connection with the issuance and sale of the Class B Units, the Partnership has adopted the Second Amendment, dated as of May 22, 2012 (the “Second Amendment to the LP Agreement”), to the Second Amended and Restated Agreement of Limited Partnership of the Partnership. The Second Amendment to the LP Agreement establishes and sets forth the rights, preferences, privileges, duties and obligations of the Class B Units. The issued Class B Units have certain rights that are senior to the rights of the holders of common units representing limited partner interests of the Partnership (the “Common Units”), such as the right to distributions and rights upon liquidation of the Partnership, as described in the Second Amendment to the LP Agreement. In addition, the Partnership entered into the Registration Rights Agreement, dated as of May 22, 2012 (“Registration Rights Agreement”), with certain purchasers, relating to the registered resale of Common Units issuable upon the conversion of the Class B Units purchased pursuant to the Subscription Agreement.
The Class B Units have not been registered under the Securities Act of 1933, as amended, and may not be offered or sold in the United States absent a registration statement or exemption from registration.
The foregoing description of the Class B Units, the terms of their issuance and the related documents does not purport to be complete and is qualified in its entirety by the terms and conditions of the Subscription Agreement, the Registration Rights Agreement, and the Second Amendment to the LP Agreement, which are filed as exhibits to this report and incorporated herein by reference.
Attached as Exhibit I is the Class B Convertible Preferred Unit Subscription Agreement, dated as of May 11, 2012, by and among the Partnership and each of the purchasers named therein.
Attached as Exhibit II is the Second Amendment, dated as of May 22, 2012, to the Second Amended and Restated Agreement of Limited Partnership of the Partnership, dated as of February 22, 2010, as amended.
Attached as Exhibit III is the Registration Rights Agreement, dated as of May 22, 2012, by and among the Partnership and each of the holders named therein.
Attached as Exhibit IV is a press release of Capital Product Partners L.P., dated May 23, 2012.
This report on Form 6-K/A is hereby incorporated by reference into the registrant’s registration statement, registration number 333-177491, dated October 24, 2011.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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CAPITAL PRODUCT PARTNERS L.P.
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Dated: May 23, 2012
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By:
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Capital GP L.L.C., its general partner
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/s/ Ioannis E. Lazaridis
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Name:
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Ioannis E. Lazaridis
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Title:
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Chief Executive Officer and
Chief Financial Officer of Capital GP L.L.C.
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EXHIBIT I
EXECUTION COPY
CONFIDENTIAL
CLASS B CONVERTIBLE PREFERRED UNIT SUBSCRIPTION AGREEMENT
by and among
CAPITAL PRODUCT PARTNERS L.P.
and
THE PURCHASERS PARTY HERETO
Dated as of May 11, 2012
Table of Contents
Page
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ARTICLE I
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DEFINITIONS
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Section 1.01
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Definitions
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1
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Section 1.02
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Accounting Procedures and Interpretation
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6
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ARTICLE II
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AGREEMENT TO SELL AND PURCHASE
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Section 2.01
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Sale and Purchase
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6
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Section 2.02
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Closing
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6
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Section 2.03
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Mutual Conditions
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7
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Section 2.04
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The Purchasers’ Conditions
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7
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Section 2.05
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CPLP’s Conditions
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8
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Section 2.06
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CPLP Deliveries
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8
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Section 2.07
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Purchasers’ Deliveries
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9
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Section 2.08
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Independent Nature of Purchasers’ Obligations and Rights
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10
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ARTICLE III
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REPRESENTATIONS AND WARRANTIES OF CPLP
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Section 3.01
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Existence
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11
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Section 3.02
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Ownership of Subsidiaries
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11
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Section 3.03
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Purchased Units, Capitalization and Valid Issuance
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11
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Section 3.04
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No Convertible Securities, Options or Preemptive Rights
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12
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Section 3.05
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Valid Issuance
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12
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Section 3.06
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CPLP SEC Documents
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13
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Section 3.07
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No Material Adverse Change
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13
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Section 3.08
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Litigation
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14
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Section 3.09
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No Conflicts
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14
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Section 3.10
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Authority, Enforceability
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14
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Section 3.11
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Compliance with Laws
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15
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Section 3.12
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Approvals
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15
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Section 3.13
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Certain Fees
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15
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Section 3.14
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Registration Rights
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15
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Section 3.15
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No Registration
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16
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Section 3.16
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Tax Matters
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16
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Section 3.17
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Investment Company Status
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16
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Section 3.18
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No Side Agreements
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16
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Section 3.19
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Form F-3 Eligibility
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16
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Section 3.20
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No Integration
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16
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Section 3.21
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Insurance
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17
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Section 3.22
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Internal Accounting Controls
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17
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Section 3.23
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Terms of Class B Units
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17
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ARTICLE IV
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REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
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Section 4.01
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Existence
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17
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Section 4.02
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Authorization, Enforceability
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17
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Section 4.03
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No Breach
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18
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Section 4.04
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Certain Fees
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18
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Section 4.05
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Investment
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18
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Section 4.06
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Nature of Purchasers
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18
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Section 4.07
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Receipt of Information; Authorization
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19
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Section 4.08
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Restricted Securities
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19
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Section 4.09
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Legend
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19
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ARTICLE V
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COVENANTS
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Section 5.01
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Taking of Necessary Action
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20
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Section 5.02
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Other Actions
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20
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Section 5.03
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Payment and Expenses
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20
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Section 5.04
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Use of Proceeds
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20
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Section 5.05
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Non-Disclosure; Interim Public Filings
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20
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Section 5.06
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Subsequent Offerings; Lock-Up Agreement
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21
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Section 5.07
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Corporate Status
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21
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Section 5.08
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Qualified Shareholder Status
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22
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Section 5.09
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Undertaking of CPLP
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Section 5.10
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Undertaking of Capital Maritime
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ARTICLE VI
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INDEMNIFICATION
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Section 6.01
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Indemnification by CPLP
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Section 6.02
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Indemnification by Purchasers
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Section 6.03
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Indemnification Procedure
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ARTICLE VII
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MISCELLANEOUS
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Section 7.01
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Interpretation and Survival of Provisions
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Section 7.02
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Survival of Provisions
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Section 7.03
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No Waiver; Modifications in Writing
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25
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Section 7.04
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Binding Effect; Assignment
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25
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Section 7.05
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Non-Disclosure
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26
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Section 7.06
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Communications
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26
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Section 7.07
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Removal of Legend
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27
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Section 7.08
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Entire Agreement
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28
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Section 7.09
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Governing Law
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28
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Section 7.10
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Execution in Counterparts
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28
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Section 7.11
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Termination
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28
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Section 7.12
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Recapitalization, Exchanges, Etc. Affecting the Purchased Units
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29
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ii
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Schedule A –
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List of Purchasers and Commitment Amounts
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Schedule B –
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Notice and Contact Information
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Exhibit A –
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Form of Second Amendment to the Second Amended and Restated Agreement of Limited Partnership of Capital Product Partners L.P., as amended
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Exhibit B –
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Terms of Amendments to CPLP Credit Facilities
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Exhibit C –
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Registration Rights Agreement
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CLASS B CONVERTIBLE PREFERRED UNIT SUBSCRIPTION AGREEMENT
This CLASS B CONVERTIBLE PREFERRED UNIT SUBSCRIPTION AGREEMENT, dated as of May 11, 2012 (this “Agreement”), is by and among CAPITAL PRODUCT PARTNERS L.P., a limited partnership organized under the laws of the Republic of the Marshall Islands (“CPLP”), and each of the purchasers set forth on Schedule A hereto (the “Purchasers”).
WHEREAS, CPLP desires to sell to each of the Purchasers, and each of the Purchasers desires, severally and not jointly, to subscribe for and purchase from CPLP, certain Class B Convertible Preferred Units, in accordance with the provisions of this Agreement; and
WHEREAS, CPLP has agreed to provide the Purchaser with certain registration rights with respect to the Common Units (as defined below) underlying the Class B Convertible Preferred Units acquired pursuant to this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions
As used in this Agreement, and unless the context requires a different meaning, the following terms have the meanings indicated:
“Additional Class B Convertible Preferred Units” has the meaning set forth in Section 5.09.
“Affiliate” means, with respect to a specified Person, any other Person, whether now in existence or hereafter created, directly or indirectly controlling, controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control” (including, with correlative meanings, “controlling”, “controlled by”, and “under common control with”) means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.
“Agreement” has the meaning set forth in the Preamble.
“Basic Documents” means, collectively, this Agreement, the Class B Amendment, the Registration Rights Agreement, the Non-Disclosure Agreements and any and all other agreements or instruments executed and delivered by the parties on even date herewith or at the Closing relating to the issuance and sale of the Purchased Units, or any amendments, supplements, continuations or modifications thereto.
“Business Day” means Monday through Friday of each week, except that a legal holiday recognized as such by the government of the United States of America or the State of New York shall not be regarded as a Business Day.
“Capital Entities” means CPLP, the General Partner, and all of CPLP’s Subsidiaries.
“Capital Maritime” shall have the meaning specified in Section 5.10.
“Class B Amendment” means the Second Amendment to the Second Amended and Restated Agreement of Limited Partnership of CPLP, as amended, in all material respects in the form attached to this Agreement as Exhibit A.
“Class B Unit Price” shall have the meaning specified in Section 2.01(b).
“Class B Units” means the Class B Convertible Preferred Units representing limited partner interests in CPLP as established by the Class B Amendment.
“Closing” shall have the meaning specified in Section 2.02.
“Closing Date” shall have the meaning specified in Section 2.02.
“Code” shall have the meaning specified in Section 3.16.
“Commission” means the United States Securities and Exchange Commission.
“Common Units” means the common units representing limited partner interests in CPLP.
“CPLP” has the meaning set forth in the Preamble.
“CPLP Credit Facilities” means, collectively, the Revolving $370.0 Million Credit Facility, the Revolving $350.0 Million Credit Facility and the Term Loan Facility.
“CPLP Financial Statements” shall have the meaning specified in Section 3.06.
“CPLP Material Adverse Effect” means any material and adverse effect on (a) the assets, liabilities, financial condition, business, operations, affairs or prospects of CPLP and its Subsidiaries taken as a whole; (b) the ability of the Capital Entities taken as a whole to carry on their business as such business is conducted as of the date hereof or to meet their obligations under the Basic Documents on a timely basis; or (c) the ability of CPLP to consummate the transactions under any Basic Document; provided, however, that with respect to Section 2.04(b) and Section 7.11, a CPLP Material Adverse Effect shall not include any material and adverse effect on the foregoing to the extent such material and adverse effect results from, arises out of, or relates to (x) general economic or market conditions or changes in the general state of the industries in which the Capital Entities operate, except to the extent that the Capital Entities, taken as a whole, are adversely affected in a disproportionate manner as compared to other industry participants, and then only to such extent, (y) conditions caused by acts of terrorism or
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war (whether or not declared), or the occurrence of any other calamity or crisis, or (z) any change in accounting requirements or principles imposed upon CPLP and its Subsidiaries or their respective businesses or any change in applicable Law, or the interpretation thereof.
“CPLP SEC Documents” shall have the meaning specified in Section 3.06.
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations of the Commission promulgated thereunder.
“GAAP” means generally accepted accounting principles in the United States of America in effect from time to time.
“General Partner” means Capital GP L.L.C., a Marshall Islands limited liability company.
“General Partner Interest” means the ownership interest of the General Partner in CPLP (in its capacity as a general partner and without reference to any Limited Partner Interest (as defined in the Partnership Agreement) held by it), which is evidenced by General Partner Units and includes any and all benefits to which the General Partner is entitled as provided in the Partnership Agreement, together with all obligations of the General Partner to comply with the terms and provisions of the Partnership Agreement.
“General Partner Unit” means a fractional part of the General Partner Interest having the rights and obligations specified with respect to the General Partner Interest.
“Governmental Authority” means, with respect to a particular Person, any country, state, county, city and political subdivision in which such Person or such Person’s Property is located or that exercises valid jurisdiction over any such Person or such Person’s Property, and any court, agency, department, commission, board, bureau or instrumentality of any of them and any monetary authority that exercises valid jurisdiction over any such Person or such Person’s Property. Unless otherwise specified, all references to Governmental Authority herein with respect to CPLP mean a Governmental Authority having jurisdiction over CPLP, its Subsidiaries or any of their respective Properties.
“Indemnified Party” has the meaning set forth in Section 6.03.
“Indemnifying Party” has the meaning set forth in Section 6.03.
“Law” means any federal, state, local or foreign order, writ, injunction, judgment, settlement, award, decree, statute, law, rule or regulation.
“Lien” means any interest in Property securing an obligation owed to, or a claim by, a Person other than the owner of the Property, whether such interest is based on the common law, statute or contract, and whether such obligation or claim is fixed or contingent, and including but not limited to the lien or security interest arising from a mortgage, encumbrance, pledge, security agreement, conditional sale or trust receipt or a lease, consignment or bailment for security purposes. For the purpose of this Agreement, a Person shall be deemed to be the owner of any Property that it has acquired or holds subject to a conditional sale agreement, or
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leases under a financing lease or other arrangement pursuant to which title to the Property has been retained by or vested in some other Person in a transaction intended to create a financing.
“Lock-Up Date” means the date that is 120 days from the Closing Date.
“Marshall Islands LP Act” means the Marshall Islands Limited Partnership Act, as amended, supplemented or restated from time to time, and any successor to such statute.
“Marshall Islands LLC Act” means the Marshall Islands Limited Liability Company Act as amended, supplemented or restated from time to time, and any successor to such statute.
“NASDAQ” means the Nasdaq Global Market.
“Non-Disclosure Agreements” means each of those certain letter agreements between CPLP and each of the Purchasers related to the offering and sale of the Class B Units.
“Partnership Agreement” means the Second Amended and Restated Agreement of Limited Partnership of CPLP dated February 22, 2010, as amended from time to time, including by the Class B Amendment.
“Partnership Related Party” has the meaning set forth in Section 6.02.
“Partnership Securities” means any class or series of equity interest in CPLP (but excluding any options, rights, warrants and appreciation rights relating to an equity interest in CPLP), including Common Units, Class B Units, Subordinated Units and Incentive Distribution Rights (as defined in the Partnership Agreement).
“Permits” means, with respect to CPLP or any of its Subsidiaries, any licenses, permits, variances, consents, authorizations, waivers, grants, franchises, concessions, exemptions, orders, registrations and approvals of Governmental Authorities or other Persons necessary for the ownership, leasing, operation, occupancy or use of its Properties or the conduct of its businesses as currently conducted or proposed to be conducted.
“Person” means any individual, corporation, company, voluntary association, partnership, joint venture, trust, limited liability company, unincorporated organization or government or any agency, instrumentality or political subdivision thereof, or any other form of entity.
“Property” means any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible.
“Purchase Price” means, with respect to a particular Purchaser, the monetary commitment amount equal to the product of the number of Purchased Units for such Purchaser, multiplied by the Class B Unit Price, as set forth on Schedule A hereto.
“Purchased Units” means with respect to each Purchaser, the number of Class B Units as set forth opposite such Purchaser’s name on Schedule A hereto.
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“Purchaser Related Party” has the meaning set forth in Section 6.01.
“Purchasers” has the meaning set forth in the Preamble.
“Qualified Shareholder” has the meaning set forth in Section 5.08.
“Registration Rights Agreement” means the Registration Rights Agreement, dated as of the Closing Date, between CPLP and the Purchasers named therein.
“Representatives” of any Person means the officers, directors, managers, employees, agents, counsel, accountants, investment bankers and other representatives of such Person.
“Revolving $350.0 Million Credit Facility” means the Loan Agreement dated March 19, 2008 by and between Capital Product Partners L.P. as Borrower, the banks and financial institutions listed in Schedule 1 thereto as Lenders, HSH Nordbank AG as Swap Bank, HSH Nordbank AG as Bookrunner, HSH Nordbank AG as Mandated Lead Arranger, Facility Agent and Security Trustee and DnB Nor Bank ASA as Co-arranger, as supplemented by the First Supplemental Agreement to the Revolving $350.0 Million Credit Facility dated October 2, 2009 and the Second Supplemental Agreement to the Revolving $350.0 Million Credit Facility dated July 20, 2010.
“Revolving $370.0 Million Credit Facility” means the Loan Agreement dated March 22, 2007, by and between Capital Product Partners L.P. as Borrower, the banks and financial institutions listed in Schedule 1 thereto as Lenders, HSH Nordbank AG as Swap Bank, HSH Nordbank AG as Bookrunner and HSH Nordbank AG as Agent and Security Trustee, as supplemented by the First Supplemental Agreement to the Revolving $370.0 Million Credit Facility dated September 19, 2008, the Second Supplemental Agreement to the Revolving $370.0 Million Credit Facility dated July 11, 2008, the Third Supplemental Agreement to the Revolving $370.0 Million Credit Facility dated April 7, 2009, the Fourth Supplemental Agreement to the Revolving $370.0 Million Credit Facility dated April 8, 2009, the Fifth Supplemental Agreement to the Revolving $370.0 Million Credit Facility dated October 2, 2009, the Sixth Supplemental Agreement to the Revolving $370.0 Million Credit Facility dated July 30, 2010, the Seventh Supplemental Agreement to the Revolving $370.0 Million Credit Facility dated November 30, 2010 and the Eighth Supplemental Agreement to the Revolving $370.0 Million Credit Facility dated December 23, 2011.
“Salient” means Salient Midstream & MLP Fund.
“Securities Act” means the Securities Act of 1933, as amended from time to time, and the rules and regulations of the Commission promulgated thereunder.
“Subordinated Units” means the subordinated units representing limited partner interests in CPLP.
“Subsidiary” means, as to any Person, any corporation or other entity of which: (i) such Person or a Subsidiary of such Person is a general partner or manager; (ii) at least a majority of the outstanding equity interest having by the terms thereof ordinary voting power to
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“Term Loan Facility” means the Loan Agreement dated June 9, 2011 by and between Capital Product Partners L.P. as borrower and Emporiki Bank of Greece S.A. as lender.
“Unitholders” means the unitholders of CPLP.
“Walled Off Person” shall have the meaning specified in Section 5.06(b).
Section 1.02 Accounting Procedures and Interpretation
Unless otherwise specified herein, all accounting terms used herein shall be interpreted and all determinations with respect to accounting matters hereunder shall be made in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and in compliance as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect thereto.
ARTICLE II
AGREEMENT TO SELL AND PURCHASE
Section 2.01 Sale and Purchase
(a) Subject to the terms and conditions hereof, CPLP hereby agrees to issue and sell to each Purchaser and each Purchaser, severally and not jointly, hereby agrees to subscribe for and purchase from CPLP, the number of Purchased Units as set forth on Schedule A opposite the name of such Purchaser, and each Purchaser agrees to pay CPLP the Class B Unit Price for each Purchased Unit as set forth in paragraph (b) below.
(b) The amount per Class B Unit each Purchaser will pay to CPLP to purchase the Purchased Units (the “Class B Unit Price”) hereunder shall be $9.00.
Section 2.02 Closing
(a) Subject to the terms and conditions hereof, the consummation of the purchase and sale of the Purchased Units hereunder (the “Closing”) shall take place at 9:00 AM on the date on which the Purchased Units are delivered to the Purchasers by CPLP in accordance with Section 2.02(b) (the “Closing Date”) at the offices of Sullivan & Cromwell, LLP, 125 Broad Street, New York, New York 10004, or such other location as may be mutually agreed by the parties.
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(b) Payment for the Purchased Units shall be made by the Purchasers to CPLP one (1) Business Day after CPLP has provided to the Purchasers execution versions of the amendments to each of the CPLP Credit Facilities on the terms set forth on Exhibit B hereto, to such account as CPLP may direct. The Purchased Units shall be delivered to the Purchasers on the Closing Date.
Section 2.03 Mutual Conditions
The respective obligations of each party to consummate the purchase and issuance and sale of the Purchased Units shall be subject to the satisfaction on or prior to the Closing Date of each of the following conditions (any or all of which may be waived by a particular party on behalf of itself in writing, in whole or in part, to the extent permitted by applicable Law):
(a) no Law shall have been enacted or promulgated, and no action shall have been taken, by any Governmental Authority of competent jurisdiction that temporarily, preliminarily or permanently restrains, precludes, enjoins or otherwise prohibits the consummation of the transactions contemplated hereby or makes the transactions contemplated hereby illegal; and
(b) there shall not be pending any suit, action or proceeding by any Governmental Authority seeking to restrain, preclude, enjoin or prohibit the transactions contemplated by this Agreement.
Section 2.04 The Purchasers’ Conditions
The respective obligation of each Purchaser to consummate the purchase of its Purchased Units shall be subject to the satisfaction on or prior to the Closing Date of each of the following conditions (any or all of which may be waived by a particular Purchaser on behalf of itself in writing with respect to its Purchased Units, in whole or in part, to the extent permitted by applicable Law):
(a) CPLP shall have performed and complied with the covenants and agreements contained in this Agreement that are required to be performed and complied with by CPLP on or prior to the Closing Date;
(b) The representations and warranties of CPLP contained in this Agreement that are qualified by materiality or a CPLP Material Adverse Effect shall be true and correct when made and as of the Closing Date and all other representations and warranties of CPLP shall be true and correct in all material respects when made and as of the Closing Date, in each case as though made at and as of the Closing Date (except that representations made as of a specific date shall be required to be true and correct as of such date only);
(c) No notice of delisting from NASDAQ shall have been received by CPLP with respect to the Common Units and CPLP shall have undertaken to file with NASDAQ, the proper form or other notification and required supporting documentation as soon as reasonably practicable following the Closing, and provide to NASDAQ any requested information relating to the Common Units underlying the Class B Units;
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(d) The Class B Amendment, in all material respects in the form attached as Exhibit A to this Agreement but with such additional modifications as shall be consented to by all Purchasers (such consent not to be unreasonably withheld), shall have been duly adopted and be in full force;
(e) CPLP shall have provided execution versions of the amendments for each of the CPLP Credit Facilities on the terms set forth on Exhibit B attached hereto;
(f) CPLP shall have delivered, or caused to be delivered, to the Purchasers at the Closing, CPLP’s closing deliveries described in Section 2.06; and
(g) CPLP shall have received gross proceeds from this offering and sale of Class B Units in the amounts set forth on Schedule A hereto.
Section 2.05 CPLP’s Conditions
The obligation of CPLP to consummate the sale of the Purchased Units to each Purchaser shall be subject to the satisfaction on or prior to the Closing Date of each of the following conditions with respect to each Purchaser individually and not jointly (any or all of which may be waived by CPLP in writing, in whole or in part, to the extent permitted by applicable Law):
(a) the representations and warranties of such Purchaser contained in this Agreement that are qualified by materiality shall be true and correct when made and as of the Closing Date and all other representations and warranties of such Purchaser shall be true and correct in all material respects as of the Closing Date (except that representations of such Purchaser made as of a specific date shall be required to be true and correct as of such date only); and
(b) such Purchaser shall have delivered, or caused to be delivered, to CPLP at the Closing such Purchaser’s closing deliveries described in Section 2.07.
Section 2.06 CPLP Deliveries
At the Closing, subject to the terms and conditions hereof, CPLP will deliver, or cause to be delivered, to each Purchaser:
(a) A certificate or certificates representing the Purchased Units or evidence that the Purchased Units have been issued in book entry form with the transfer agent, Bank of New York, in the name requested by such Purchaser, (in each case, bearing the legend set forth in Section 4.09) and meeting the requirements of the Partnership Agreement, free and clear of any Liens, other than transfer restrictions under applicable federal and state securities laws;
(b) Copies of the Certificate of Limited Partnership of CPLP and of the Certificate of Formation of Capital GP L.L.C., each certified by the Registrar of Corporations of the Republic of The Marshall Islands as of a recent date;
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(c) A Certificate of Goodstanding issued by the Registrar of Corporations of the Republic of The Marshall Islands, dated a recent date, to the effect that CPLP is in good standing;
(d) A cross-receipt executed by CPLP and delivered to each Purchaser certifying that CPLP has received the Purchase Price with respect to such Purchaser as of the Closing Date;
(e) Opinions addressed to the Purchasers from Watson, Farley & Williams (New York) LLP and Sullivan & Cromwell LLP, dated as of the Closing Date, in a form mutually agreed between the parties;
(f) A certificate, dated the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer of Capital GP L.L.C., in his capacity as such, stating that:
(i) CPLP has performed and complied with the covenants and agreements contained in this Agreement that are required to be performed and complied with by CPLP on or prior to the Closing Date; and
(ii) The representations and warranties of CPLP contained in this Agreement that are qualified by materiality or CPLP Material Adverse Effect are true and correct as of the Closing Date and all other representations and warranties of CPLP are true and correct in all material respects as of the Closing Date (except that representations and warranties made as of a specific date shall be required to be true and correct as of such date only);
(g) A certificate of a duly authorized officer of Capital GP L.L.C., on behalf of CPLP, certifying as to (1) the Certificate of Limited Partnership of CPLP, as amended, and the Partnership Agreement, (2) board resolutions authorizing the execution and delivery of the Basic Documents and the consummation of the transactions contemplated thereby, including the issuance of the Class B Units and the Common Units issuable upon conversion thereof, and (3) that the attached form of each of the amendments to the Credit Facilities, which shall be on terms substantially similar to those set forth in Exhibit B attached hereto, is the final execution version that CPLP intends to execute immediately upon receipt of the aggregate Purchase Prices set forth on Schedule A hereto; and
(h) The Registration Rights Agreement in substantially the form attached hereto as Exhibit C relating to the Purchased Units, which shall have been duly executed by CPLP.
Section 2.07 Purchasers’ Deliveries
At the Closing, subject to the terms and conditions hereof, each Purchaser shall:
(a) have delivered, or cause to have been delivered, one (1) Business Day in advance of the Closing Date, payment of such Purchaser’s Purchase Price by wire transfer of immediately available funds to an account designated by CPLP in writing at least three (3) Business Days prior to the Closing Date;
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(b) deliver or cause to be delivered to CPLP:
(i) A cross-receipt executed by each Purchaser and delivered to CPLP certifying that it has received its respective Purchased Units as of the Closing Date;
(ii) A certificate from each Purchaser, dated the Closing Date and signed by an appropriate officer of such Purchaser, in their capacities as such, stating that:
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(A)
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Such Purchaser has performed and complied with the covenants and agreements contained in this Agreement that are required to be performed and complied with by such Purchaser on or prior to the Closing Date;
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(B)
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The representations and warranties of such Purchaser contained in this Agreement that are qualified by materiality are true and correct as of the Closing Date and all other representations and warranties of such Purchaser are true and correct in all material respects as of the Closing Date (except that representations and warranties made as of a specific date shall be required to be true and correct as of such date only); and
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(iii) The Registration Rights Agreement relating to the Purchased Units, which shall have been duly executed by each Purchaser.
Section 2.08 Independent Nature of Purchasers’ Obligations and Rights
The obligations of each Purchaser under any Basic Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance of the obligations of any other Purchaser under any Basic Documents. The failure or waiver of performance under any Basic Document by any Purchaser does not excuse performance by any other Purchaser. Nothing contained herein or in any other Basic Document, and no action taken by any Purchaser pursuant thereto, shall be deemed to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Basic Document. Each Purchaser shall be entitled to independently protect and enforce its rights, including without limitation, the rights arising out of this Agreement or out of the other Basic Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any proceeding for such purpose.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF CPLP
CPLP represents and warrants to each Purchaser as follows:
Section 3.01 Existence
Each of CPLP and CPLP’s Subsidiaries has been duly incorporated or formed, as the case may be, and is validly existing as a limited partnership, limited liability company or corporation, as applicable, and is in good standing under the Laws of its jurisdiction of formation or incorporation, as the case may be, has all requisite power and authority, and has all governmental licenses, authorizations, consents and approvals necessary, to own, lease, use or operate its respective Properties and to carry on its business as now being conducted, except where the failure to obtain such licenses, authorizations, consents and approvals would not reasonably be expected to have a CPLP Material Adverse Effect. None of CPLP nor any of its Subsidiaries are in default in the performance, observance or fulfillment of any provision of, in the case of CPLP, the Partnership Agreement or its Certificate of Limited Partnership or, in the case of any Subsidiary of CPLP, its respective certificate of incorporation, certification of formation, bylaws, limited liability company agreement or other similar organizational documents. Each of CPLP and its Subsidiaries is duly qualified or registered and in good standing as a foreign limited partnership, limited liability company or corporation, as applicable, and is authorized to do business in each jurisdiction in which the ownership or leasing of its respective Properties or the character of its respective operations makes such registration or qualification necessary, except where the failure to obtain such qualification, license, authorization or good standing would not reasonably be expected to have a CPLP Material Adverse Effect.
Section 3.02 Ownership of Subsidiaries
(a) All of the issued and outstanding equity interests of each of CPLP’s Subsidiaries are owned, directly or indirectly, by CPLP free and clear of any Liens (except for such restrictions as may exist under applicable Law and except for such Liens as may be imposed under the CPLP Credit Facilities), and all such ownership interests have been duly authorized, validly issued and are fully paid (to the extent required by applicable Law or in the organizational documents of CPLP’s Subsidiaries, as applicable) and non-assessable (except as such nonassessability may be affected by matters described in Section 41 of the Marshall Islands LP Act and Section 31 of the Marshall Islands LLC Act) and free of preemptive rights, with no personal liability attaching to the ownership thereof. Except as disclosed in the CPLP SEC Documents, neither CPLP nor any of its Subsidiaries owns any shares of capital stock or other securities of, or interest in, any other Person, or is obligated to make any capital contribution to or other investment in any other Person.
Section 3.03 Purchased Units, Capitalization and Valid Issuance
(a) The Purchased Units shall have those rights, preferences, privileges and restrictions governing the Class B Units as set forth in the Class B Amendment.
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(b) The General Partner is the sole general partner of the CPLP and owns an ownership interest in the CPLP; such ownership interest has been duly authorized and validly issued in accordance with the Partnership Agreement; and the General Partner owns such ownership interest free and clear of any Liens.
(c) As of the date of this Agreement, the issued and outstanding limited partner interests of CPLP consist of 69,372,077 Common Units and the Incentive Distribution Rights (as defined in the Partnership Agreement). The only issued and outstanding general partner interests of CPLP are the interests of the General Partner described in the Partnership Agreement. All outstanding Common Units and Incentive Distribution Rights and the limited partner interests represented thereby have been duly authorized and are validly issued and fully paid (to the extent required under the Partnership Agreement) and non-assessable (except as such nonassessability may be affected by matters described in Section 41 of the Marshall Islands LP Act and the Partnership Agreement).
Section 3.04 No Convertible Securities, Options or Preemptive Rights
(a) No indebtedness having the right to vote (or convertible into or exchangeable for securities having the right to vote) on any matters on which CPLP Unitholders may vote is issued or outstanding. There are no outstanding or authorized (i) options, warrants, preemptive rights, subscriptions, calls, or other rights, convertible or exchangeable securities, agreements, claims or commitments of any character obligating CPLP or any of its Subsidiaries to issue, transfer or sell any partnership interests or other equity interest in CPLP or any of its Subsidiaries or securities convertible into or exchangeable for such partnership interests or other equity interest, (ii) obligations of CPLP or any of its Subsidiaries to repurchase, redeem or otherwise acquire any partnership interests or equity interests of CPLP or any of its Subsidiaries or any such securities or agreements listed in clause (i) of this sentence or (iii) voting trusts or similar agreements to which CPLP or any of its Subsidiaries is a party with respect to the voting of the equity interests of CPLP or any of its Subsidiaries.
Section 3.05 Valid Issuance
(a) The offer and sale of the Purchased Units and the limited partner interests represented thereby, have been, or prior to the Closing Date will be, duly authorized by CPLP pursuant to the Partnership Agreement and, when issued and delivered to such Purchaser against payment therefor in accordance with the terms of this Agreement, will be validly issued, fully paid (to the extent required by applicable law and the Partnership Agreement) and non-assessable (except as such nonassessability may be affected by matters described in Section 41 of the Marshall Islands LP Act) and will be free of any and all Liens and restrictions on transfer, other than restrictions on transfer under the Partnership Agreement or this Agreement and under applicable state and federal securities laws and other than Liens as are created by the Purchasers.
(b) CPLP’s currently outstanding Common Units are quoted on NASDAQ and CPLP has not received any notice of delisting. The Class B Units will be issued in compliance with all applicable rules of NASDAQ.
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(c) Prior to the Closing Date, the Common Units issuable upon conversion of the Class B Units and any Common Units issuable in lieu of cash as liquidated damages under the Registration Rights Agreement, and the limited partner interests represented thereby, will, in each case when issued, be duly authorized by CPLP pursuant to the Partnership Agreement and, upon issuance in accordance with the terms of the Class B Units as reflected in the Class B Amendment, will be validly issued, fully paid (to the extent required by applicable law and the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by matters described in Section 41 of the Marshall Islands LP Act) and will be free of any and all Liens and restrictions on transfer, other than restrictions on transfer under the Partnership Agreement or this Agreement and under applicable state securities laws and other than such Liens as are created by the Purchasers.
Section 3.06 CPLP SEC Documents
CPLP has timely filed with the Commission all forms, registration statements, reports, schedules and statements required to be filed by it under the Exchange Act or the Securities Act (all such documents, collectively, the “CPLP SEC Documents”). The CPLP SEC Documents, including, without limitation, any audited or unaudited financial statements and any notes thereto or schedules included therein (the “CPLP Financial Statements”), at the time filed (in the case of registration statements, solely on the dates of effectiveness) (except to the extent corrected by a subsequently filed CPLP SEC Document filed prior to the date hereof) (a) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in light of the circumstances under which they were made) not misleading, (b) complied as to form in all material respects with the applicable requirements of the Exchange Act and the Securities Act, as applicable, (c) complied as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect thereto, (d) in the case of the CPLP Financial Statements, were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto), and (e) in the case of the CPLP Financial Statements, fairly present (subject in the case of unaudited statements to normal, recurring and year-end audit adjustments) in all material respects the consolidated financial position of CPLP and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods then ended. Deloitte Hadjipavlou, Sofianos & Cambanis S.A. is an independent registered public accounting firm with respect to CPLP and the General Partner and has not resigned or been dismissed as independent registered public accountants of CPLP as a result of or in connection with any disagreement with CPLP on a matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure.
Section 3.07 No Material Adverse Change
Except as set forth in or contemplated by the CPLP SEC Documents filed with the Commission on or prior to the date hereof, since the date of CPLP’s most recent Form 20-F filing with the Commission, there has been no (a) change that has had or would reasonably be expected to have a CPLP Material Adverse Effect, (b) disposition of any material asset, otherwise than for fair value in the ordinary course of business or (c) material change in CPLP’s accounting principles, practices or methods.
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Section 3.08 Litigation
Except as set forth in the CPLP SEC Documents, there is no action, suit, or proceeding pending (including any investigation, litigation or inquiry) to which any Capital Entity is a party or, to CPLP’s knowledge, threatened against or affecting any of the Capital Entities or any of their respective officers, directors, properties or assets, that (a) affects the validity of the Basic Documents or the right of any Capital Entity to enter into any of the Basic Documents or to consummate the transactions contemplated hereby or thereby or (b) would reasonably be expected to result in, individually or in the aggregate, a CPLP Material Adverse Effect.
Section 3.09 No Conflicts
The execution, delivery and performance by the Capital Entities of the Basic Documents to which they are parties and compliance by the Capital Entities with the terms and provisions hereof and thereof, and the issuance and sale by CPLP of the Purchased Units and the application of the proceeds therefrom, do not and will not (a) with respect to securities laws, assuming the accuracy of the representations and warranties of the Purchasers contained herein and their compliance with the covenants contained herein, and with respect to other Laws, will not violate any provision of any Law or Permit having applicability to the Capital Entities or any of their respective Properties, (b) conflict with, result in or constitute a violation of the partnership agreement, limited liability company agreement, certificate of formation or conversion, certificate or articles of incorporation, bylaws or other constituent document of any of the Capital Entities, (c) require any consent, approval or notice under or result in a violation or breach of or constitute a breach or violation of, or a default (or an event that, with notice or lapse of time or both, would constitute such a default) under any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which any of the Capital Entities is a party or by which any of them or any of their respective properties may be bound, or (d) result in or require the creation or imposition of any Lien upon any property or assets of any of the CPLP Entities except in the cases of clauses (a), (c) and (d) where any such conflict, violation, default, breach, termination, cancellation, failure to receive consent, approval or notice, or acceleration with respect to the foregoing provisions of this Section 3.09 would not be, individually or in the aggregate, reasonably likely to result in a CPLP Material Adverse Effect.
Section 3.10 Authority, Enforceability
Each Capital Entity has all necessary power and authority to issue, sell and deliver the Purchased Units, in accordance with and upon the terms and conditions set forth in this Agreement and the Partnership Agreement. Each Capital Entity has all requisite power and authority to execute, deliver and perform its obligations under the Basic Documents to which it is a party and to consummate the transactions contemplated thereby, and the execution, delivery and performance by each Capital Entity of the Basic Documents to which it is a party, have been duly authorized by all necessary action on the part of such Capital Entity; and the Basic Documents constitute the legal, valid and binding obligations of the Capital Entities to which each is a party, enforceable in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer and similar laws affecting creditors’ rights
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Section 3.11 Compliance with Laws
Neither CPLP nor any of its Subsidiaries is in violation of any judgment, decree or order or any Law applicable to CPLP or its Subsidiaries, except as would not, individually or in the aggregate, have a CPLP Material Adverse Effect. CPLP and its Subsidiaries possess all certificates, authorizations and permits issued by the appropriate regulatory authorities necessary to conduct their respective businesses, except where the failure to possess such certificates, authorizations or permits would not have, individually or in the aggregate, a CPLP Material Adverse Effect, and neither CPLP nor any such Subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit, except where such potential revocation or modification would not have, individually or in the aggregate, a CPLP Material Adverse Effect.
Section 3.12 Approvals
No approval from the holders of outstanding Common Units is required under the Partnership Agreement or the rules of NASDAQ in connection with CPLP’s issuance and sale of the Purchased Units to the Purchasers. Except for the approvals required by the Commission in connection with any registration statement filed under the Registration Rights Agreement, and for approvals that have already been obtained, no authorization, consent, approval, waiver, license, qualification or written exemption from, nor any filing, declaration, qualification or registration with, any Governmental Authority or any other Person is required in connection with the execution, delivery or performance by any Capital Entity of any of the Basic Documents to which it is a party, except where the failure to receive such authorization, consent, approval, waiver, license, qualification or written exemption from, or to make such filing, declaration, qualification or registration would not, individually or in the aggregate, reasonably be expected to have a CPLP Material Adverse Effect.
Section 3.13 Certain Fees
Except for the fees payable to Evercore Capital Partners and to certain investment banks, no fees or commissions are or will be payable by CPLP to brokers, finders, or investment bankers with respect to the sale of any of the Purchased Units or the consummation of the transaction contemplated by this Agreement.
Section 3.14 Registration Rights
Neither the execution of this Agreement, the issuance of the Purchased Units as contemplated by this Agreement nor the conversion of the Purchased Units into Common Units gives rise to any rights for or relating to the registration of any Partnership Securities, other than as have been waived.
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Section 3.15 No Registration
Assuming the accuracy of the representations and warranties of each Purchaser contained in Section 4.05, the issuance and sale of the Purchased Units pursuant to this Agreement is exempt from registration requirements of the Securities Act, and neither CPLP nor, to the knowledge of CPLP, any authorized Representative acting on its behalf has taken or will take any action hereafter that would cause the loss of such exemption. Except as contemplated by this Agreement, the Partnership Agreement and the Registration Rights Agreement, there are no contracts, agreements or understandings between CPLP and any Person granting such Person the right to require CPLP to file a registration statement under the Securities Act with respect to any securities of CPLP or to require CPLP to include such securities in any securities registered or to be registered pursuant to any registration statement filed by or required to be filed by CPLP under the Securities Act.
Section 3.16 Tax Matters
CPLP is treated as a corporation for purposes of the Internal Revenue Code of 1986, as amended (the “Code”). Based on its current methods of operation, CPLP believes that it is not a “passive foreign investment company” within the meaning of Section 1297 of the Code.
Section 3.17 Investment Company Status
CPLP is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
Section 3.18 No Side Agreements
There are no agreements by, among or between CPLP or any of its Affiliates, on the one hand, and any Purchaser or any of its Affiliates, on the other hand, with respect to the transactions contemplated hereby other than the Basic Documents, nor promises or inducements for future transactions between or among any such parties except for the Structuring Fee Agreement between CPLP and Kayne Anderson Energy Total Return Fund, Inc. and the Side Letter Agreement between CPLP and Salient.
Section 3.19 Form F-3 Eligibility
As of the date hereof, the CPLP has been, since the time of filing its most recent Form F-3 Registration Statement, and continues to be, eligible to use Form F-3.
Section 3.20 No Integration
Neither CPLP nor any of its Subsidiaries have, directly or indirectly through any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any “security” (as defined in the Securities Act) that is or will be integrated with the sale of the Purchased Units in a manner that would require registration under the Securities Act.
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Section 3.21 Insurance
CPLP and its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged. CPLP does not have any reason to believe that it or any of its Subsidiaries will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business.
Section 3.22 Internal Accounting Controls
CPLP and its Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. CPLP is not aware of any failures of such internal accounting controls.
Section 3.23 Terms of Class B Units
No approvals are required by NASDAQ, the Partnership Agreement or applicable Law to approve the conversion of Class B Units into Common Units except for such approvals as have been obtained or will be obtained as promptly as practicable following the Closing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser, severally and not jointly, hereby represents and warrants to CPLP that:
Section 4.01 Existence
Such Purchaser is duly organized and validly existing and in good standing under the Laws of its jurisdiction of formation, with all necessary power and authority to own properties and to conduct its business as currently conducted.
Section 4.02 Authorization, Enforceability
Such Purchaser has all necessary power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby, and the execution, delivery and performance by such Purchaser of this Agreement has been duly authorized by all necessary action on the part of the Purchaser. This Agreement constitutes the legal, valid and binding obligations of such Purchaser, enforceable in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency,
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Section 4.03 No Breach
The execution, delivery and performance of this Agreement by such Purchaser and the consummation by such Purchaser of the transactions contemplated hereby will not (a) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material agreement to which such Purchaser is a party or by which the Purchaser is bound or to which any of the property or assets of such Purchaser is subject, (b) conflict with or result in any violation of the provisions of the organizational documents of such Purchaser, or (c) violate any statute, order, rule or regulation of any court or governmental agency or body having jurisdiction over such Purchaser or the property or assets of such Purchaser, except in the cases of clauses (a) and (c), for such conflicts, breaches, violations or defaults as would not prevent the consummation of the transactions contemplated by this Agreement.
Section 4.04 Certain Fees
No fees or commissions are or will be payable by such Purchaser to brokers, finders, or investment bankers with respect to the purchase of any of the Purchased Units or the consummation of the transaction contemplated by this Agreement.
Section 4.05 Investment
The Purchased Units are being acquired for such Purchaser’s own account or the account of clients for whom it exercises investment discretion, not as a nominee or agent, and with no intention of distributing the Purchased Units or any part thereof, and such Purchaser has no present intention of selling or granting any participation in or otherwise distributing the same in any transaction in violation of the securities laws of the United States or any state, without prejudice, however, to such Purchaser’s right at all times to (subject to such Purchaser’s agreement contained in Section 5.06(b) hereof) sell or otherwise dispose of all or any part of the Purchased Units under a registration statement under the Securities Act and applicable state securities laws or under an exemption from such registration available thereunder (including, without limitation, if available, Rule 144 promulgated thereunder). If such Purchaser should in the future decide to dispose of any of the Purchased Units, such Purchaser understands and agrees (a) that it may do so only in compliance with the Securities Act and applicable state securities law, as then in effect, which may include a sale contemplated by any registration statement pursuant to which such securities are being offered, and (b) that stop-transfer instructions to that effect will be in effect with respect to such securities.
Section 4.06 Nature of Purchasers
Such Purchaser represents and warrants to, and covenants and agrees with, CPLP that, (a) it is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated by the Commission pursuant to the Securities Act and (b) by reason of its business and financial experience it has such knowledge, sophistication and experience in making similar
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Section 4.07 Receipt of Information; Authorization
Such Purchaser acknowledges that it has (a) had access to CPLP’s SEC Documents and (b) been provided a reasonable opportunity to ask questions of and receive answers from Representatives of CPLP regarding such matters.
Section 4.08 Restricted Securities
Such Purchaser understands that the Purchased Units it is purchasing are characterized as “restricted securities” under the federal securities Laws inasmuch as they are being acquired from CPLP in a transaction not involving a public offering and that under such Laws and applicable regulations such securities may be resold without registration under the Securities Act only in certain limited circumstances. In this connection, such Purchaser represents that it is knowledgeable with respect to Rule 144 and Regulation S of the Commission promulgated under the Securities Act.
Section 4.09 Legend
It is understood that the certificates evidencing the Purchased Units or, upon conversion to Common Units, the book-entry account maintained by the transfer agent evidencing such Common Units, as applicable, will bear the following legend: “These securities have not been registered with the Securities and Exchange Commission or the securities commission of any state in reliance upon an exemption from registration under the Securities Act of 1933, as amended (the “Securities Act”) and are subject to the terms of the Second Amended and Restated Limited Partnership Agreement of Capital Product Partners L.P., as amended. The holder of this security acknowledges for the benefit of Capital Product Partners L.P. that this security may not be sold, offered, resold, pledged or otherwise transferred if such transfer would (a) violate the then applicable securities laws or rules and regulations of the Securities and Exchange Commission, any state securities commission or any other governmental authority with jurisdiction over such transfer or (b) cause Capital Product Partners L.P. to be treated as an association taxable as a corporation or otherwise to be taxed as an entity for federal income tax purposes (to the extent not already so treated or taxed). Capital GP L.L.C., the general partner of Capital Product Partners L.P., may impose additional restrictions on the transfer of this security if it receives an opinion of counsel that such restrictions are necessary to avoid a significant risk of Capital Product Partners L.P. becoming taxable as a corporation or otherwise becoming taxable as an entity for federal income tax purposes (to the extent not already so treated or taxed). The restrictions set forth above shall not preclude the settlement of any transactions involving this security entered into through the facilities of any national securities exchange on which this security is listed or admitted to trading.”
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ARTICLE V
COVENANTS
Section 5.01 Taking of Necessary Action
Each of the parties hereto shall use its commercially reasonable efforts promptly to take or cause to be taken all action and promptly to do or cause to be done all things necessary, proper or advisable under applicable Law and regulations to consummate and make effective the transactions contemplated by this Agreement. Without limiting the foregoing, CPLP and each Purchaser shall use its commercially reasonable effort to make all filings and obtain all consents of Governmental Authorities that may be necessary or, in the reasonable opinion of the other parties, as the case may be, advisable for the consummation of the transactions contemplated by the Basic Documents.
Section 5.02 Other Actions
CPLP shall (i) cause the Class B Amendment to be adopted immediately prior to the issuance and sale of the Class B Units contemplated by this Agreement and (ii) file with NASDAQ as soon as reasonably practicable following the Closing the proper form or other additional listing notification and required supporting documentation, and provide to NASDAQ any requested information, relating to the Common Units underlying the Class B Units.
Section 5.03 Payment and Expenses
CPLP hereby agrees to pay, on behalf of the Purchasers, upon demand, Baker Botts L.L.P. up to an aggregate amount of $75,000 for reasonable fees and expenses incurred in connection with (i) the review of, negotiation of and preparation of comments to the Basic Documents and (ii) the closing of the sale and delivery of the Purchased Units. Any legal fees in excess of $75,000 shall be paid pro rata by all the Purchasers in proportion to the aggregate number of Purchased Units purchased by each.
Section 5.04 Use of Proceeds
CPLP will use the proceeds from the sale of the Purchased Units to reduce its indebtedness under its Credit Facilities and in connection with such debt reduction, CPLP will enter into amendments to each of the CPLP Credit Facilities on the terms set forth on Exhibit B attached hereto. If CPLP has not entered into amendments to each of the CPLP Credit Facilities on the terms set forth on Exhibit B within one (1) Business Day of the date the Purchase Price is delivered in connection with Section 2.02(b), then the Purchase Price paid by the Purchasers to CPLP pursuant to Section 2.02(b) shall be returned by CPLP to the Purchasers in exchange for their Purchased Units within two (2) Business Days.
Section 5.05 Non-Disclosure; Interim Public Filings
Within four (4) days following the Closing Date, CPLP shall file a Current Report on Form 6-K with the Commission (the “6-K Filing”) describing the terms of the transactions contemplated by the Basic Documents and including as exhibits to such 6-K Filing the Basic Documents in the form required by the Exchange Act.
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Within four (4) days following the Closing Date, CPLP shall file a Current Report on Form 6-K with the Commission (the “6-K Filing”) describing the terms of the amendments to each of the CPLP Credit Facilities and disclosing all material non-public information that has otherwise been provided to the Purchasers, and including as exhibits to such 6-K Filing the amendments to each of the CPLP Credit Facilities in the form required by the Exchange Act.
Section 5.06 Subsequent Offerings; Lock-Up Agreement
(a) Until the Lock-Up Date, without the affirmative vote or prior written consent of the holders of a majority of the Class B Units, CPLP will not grant, issue or sell any Partnership Securities, any securities convertible into or exchangeable therefor or take any other action that may result in the issuance of any of the foregoing; provided, however, that CPLP may grant, issue and sell Partnership Securities pursuant to Section 5.10(a) of the Partnership Agreement.
(b) Without the prior written consent of CPLP, until the Lock-Up Date, each Purchaser will not (i) offer, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of, directly or indirectly, any of its Purchased Units or (ii) enter into any swap or other transaction or arrangement that transfers or that is designed to, or that might reasonably be expected to, result in the transfer to another, in whole or in part, any of the economic consequences of ownership of its Purchased Units, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Units, Class B Units or any other securities, in cash or otherwise; provided, however, that any Purchaser may transfer its Purchased Units to an Affiliate of such Purchaser or to any other Purchaser or an Affiliate of such other Purchaser, provided that any such transferee agrees to the restrictions set forth in this Section 5.06; provided, further, that, subject to such Purchaser’s compliance with its obligations under the U.S. federal securities laws and its internal policies: (x) Purchaser, for purposes hereof, shall not be deemed to include any Walled Off Person and (y) the foregoing covenant shall not apply to any transaction by or on behalf of Purchaser that was effected by a Walled Off Person in the ordinary course of trading without the advice or participation of Purchaser or receipt of confidential or other information regarding this transaction provided by Purchaser to such entity.
“Walled Off Person” means any employees, subsidiaries or Affiliates that are effectively walled off by appropriate “Chinese Wall” information barriers approved by Purchaser’s legal or compliance department (and thus have not been privy to any information concerning this transaction).
Section 5.07 Corporate Status
CPLP shall not file any election or take other action that would change its status as a corporation for purposes of the Code without the prior written consent of the holders of a majority of the Class B Units.
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Section 5.08 Qualified Shareholder Status
Each Purchaser agrees that it will, if requested by the General Partner, inform the General Partner as to whether the Purchaser is a “qualified shareholder” as defined in the Treasury regulations promulgated under Section 883 of the Code (a “Qualified Shareholder”), and, if the Purchaser is a Qualified Shareholder, provide documentation in the manner set forth under such Treasury Regulations sufficient for CPLP to substantiate the status of such Purchaser as a Qualified Shareholder. For further certainty, a Purchaser will have no obligation to provide any information regarding whether the direct or indirect owners of interests in the Purchaser are Qualified Shareholders.
Section 5.09 Undertaking of CPLP
CPLP shall enforce the obligations of Salient under the side letter entered into between CPLP and Salient on the date hereof and, to the extent Salient does not purchase at least an additional $10 million in aggregate Class B Convertible Preferred Units at the Class B Per Unit Purchase Price (the “Additional Class B Convertible Preferred Units”) pursuant to the terms and conditions set forth in such side letter, CPLP shall enforce the obligations of Capital Maritime & Trading Corp. pursuant to its undertaking set forth in Section 5.10 to purchase the Additional Class B Convertible Preferred Units.
Section 5.10 Undertaking of Capital Maritime
Capital Maritime & Trading Corp. (“Capital Maritime”) hereby agrees that in the event and to the extent Salient, on or before June 1, 2012, fails to enter into a subscription agreement or otherwise fails to purchase the Additional Class B Convertible Preferred Units at the same price and on substantially the same terms as the sale of Class B Convertible Preferred Units under this Agreement, Capital Maritime will immediately enter into a subscription agreement with CPLP (which agreement shall be on substantially the same terms as this Agreement) to purchase such Additional Class B Convertible Preferred Units, and will, within five (5) Business Days thereof, purchase the Additional Class B Convertible Preferred Units at the same price and on substantially the same terms as the sale of Class B Convertible Preferred Units under this Agreement; provided, that for the avoidance of doubt Capital Maritime’s obligation to purchase such Additional Class B Convertible Preferred Units hereunder shall apply only to the extent, and for only that portion of, Additional Class B Convertible Preferred Units not purchased by Salient.
ARTICLE VI
INDEMNIFICATION
Section 6.01 Indemnification by CPLP
CPLP agrees to indemnify each Purchaser and its Representatives (each a “Purchaser Related Party”) from, and hold each of them harmless against, any and all actions, suits, proceedings (including any investigations, litigation or inquiries), demands, and causes of action, costs, losses, liabilities, damages, or expenses of any kind or nature whatsoever, and, in connection therewith, and promptly upon demand, pay or reimburse each of them for all costs,
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Section 6.02 Indemnification by Purchasers
Each Purchaser agrees, severally and not jointly, to indemnify CPLP, the General Partner and their respective Representatives (each a “Partnership Related Party”) from, and hold each of them harmless against, any and all actions, suits, proceedings (including any investigations, litigation or inquiries), demands, and causes of action, and, in connection therewith, and promptly upon demand, pay or reimburse each of them for all costs, losses, liabilities, damages, or expenses of any kind or nature whatsoever, including, without limitation, the reasonable fees and disbursements of counsel and all other reasonable expenses incurred in connection with investigating, defending or preparing to defend any such matter that may be incurred by them or asserted against or involve any of them as a result of, arising out of, or in any way related to the breach of any of the representations, warranties or covenants of such Purchaser contained herein; provided, that such claim for indemnification relating to a breach of the representations and warranties is made prior to the expiration of such representations and warranties; and provided, further, that the liability of any Purchaser shall not be greater in amount than the aggregate Purchase Price paid by such Purchaser; and provided, further, that no Partnership Related Party shall be entitled to recover special, consequential or punitive damages.
Section 6.03 Indemnification Procedure
Promptly after any Partnership Related Party or Purchaser Related Party (hereinafter, the “Indemnified Party”) has received notice of any indemnifiable claim hereunder, or the commencement of any action, suit or proceeding by a third person, which the Indemnified Party believes in good faith is an indemnifiable claim under this Agreement, the Indemnified Party shall give the indemnitor hereunder (the “Indemnifying Party”) written notice of such claim or the commencement of such action, suit or proceeding, but failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability it may have to such Indemnified Party hereunder except to the extent that the Indemnifying Party is materially prejudiced by such failure. Such notice shall state the nature and the basis of such claim to the
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ARTICLE VII
MISCELLANEOUS
Section 7.01 Interpretation and Survival of Provisions
Article, Section, Schedule, and Exhibit references are to this Agreement, unless otherwise specified. All references to instruments, documents, contracts, and agreements are references to such instruments, documents, contracts, and agreements as the same may be amended, supplemented, and otherwise modified from time to time, unless otherwise specified. The word “including” shall mean “including but not limited to.” Whenever any party has an obligation under the Basic Documents, the expense of complying with that obligation shall be an expense of such party unless otherwise specified. Whenever any determination, consent, or approval is to be made or given by the Purchasers, such action shall be in such Purchaser’s sole
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Section 7.02 Survival of Provisions
The representations and warranties set forth in Sections 3.01, 3.03, 3.05, 3.10, 3.12, 3.13, 3.14, 3.17, 3.18, 3.23, 4.01, 4.02, 4.04, 4.05, 4.06, 4.07, 4.08, and 4.09 hereunder shall survive the execution and delivery of this Agreement indefinitely, and the other representations and warranties set forth herein shall survive for a period of twelve (12) months following the Closing Date regardless of any investigation made by or on behalf of CPLP or the Purchasers. The covenants made in this Agreement or any other Basic Document shall survive the Closing of the transactions described herein and remain operative and in full force and effect regardless of acceptance of any of the Purchased Units and payment therefor and repayment, conversion, exercise or repurchase thereof.
Section 7.03 No Waiver; Modifications in Writing
(a) Delay. No failure or delay on the part of any party in exercising any right, power, or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or remedy preclude any other or further exercise thereof or the exercise of any other right, power, or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to a party at law or in equity or otherwise.
(b) Specific Waiver. Except as otherwise provided herein, no amendment, waiver, consent, modification, or termination of any provision of this Agreement or any other Basic Document (except in the case of the Partnership Agreement, as amended by the Class B Amendment, for amendments adopted pursuant to the terms thereof) shall be effective unless signed by each of the parties hereto or thereto affected by such amendment, waiver, consent, modification, or termination. Any amendment, supplement or modification of or to any provision of this Agreement or any other Basic Document, any waiver of any provision of this Agreement or any other Basic Document, and any consent to any departure by CPLP from the terms of any provision of this Agreement or any other Basic Document shall be effective only in the specific instance and for the specific purpose for which made or given. Except where notice is specifically required by this Agreement, no notice to or demand on CPLP in any case shall entitle CPLP to any other or further notice or demand in similar or other circumstances.
Section 7.04 Binding Effect; Assignment
(a) Binding Effect. This Agreement shall be binding upon CPLP, each Purchaser, and their respective successors and permitted assigns. Except as expressly provided in this Agreement, this Agreement shall not be construed so as to confer any right or benefit
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(b) Assignment of Purchased Units. All or any portion of Purchased Units purchased pursuant to this Agreement may be sold, assigned or pledged by such Purchaser, subject to compliance with Section 4.05, Section 4.06, Section 5.06(b), the Registration Rights Agreement and applicable securities laws.
(c) Assignment of Rights. All or any portion of the rights and obligations of each Purchaser under this Agreement may be transferred by such Purchaser to any Affiliate of such Purchaser without the consent of CPLP. Notwithstanding the foregoing, no transfer of rights may take place pursuant to this Section 7.04(c) unless the transferee executes a joinder agreement and expressly agrees to be bound by the terms of the Basic Documents. Schedule A and Schedule B to this Agreement will be updated to reflect the transferee information.
Section 7.05 Non-Disclosure
Notwithstanding anything herein to the contrary, the Non-Disclosure Agreements shall remain in full force and effect in accordance with their terms regardless of any termination of this Agreement. Other than the Form 6-K to be filed in connection with this Agreement, CPLP, the General Partner, their respective Subsidiaries and any of their respective Representatives shall disclose the identity of, or any other information concerning, any Purchaser or any of its Affiliates only after providing such Purchaser a reasonable opportunity to review and comment on such disclosure; provided, however, that nothing in this Section 7.05 shall delay any required filing or other disclosure with the Commission, NASDAQ or any Governmental Authority or otherwise hinder CPLP, the General Partner, their respective Subsidiaries or their Representatives’ ability to timely comply with all laws or rules and regulations of the Commission, NASDAQ or other Governmental Authority.
Section 7.06 Communications
All notices and demands provided for hereunder shall be in writing and shall be given by registered or certified mail, return receipt requested, telecopy, electronic mail, air courier guaranteeing overnight delivery or personal delivery to the following addresses:
If to the Purchasers:
To the respective address listed on Schedule B hereof
with a copy to:
Baker Botts L.L.P.
98 San Jacinto Blvd., Suite 1500
Austin, Texas 78701
Attention: Laura L. Tyson
Facsimile: (512) 322-8377
Email: laura.tyson@bakerbotts.com
26
If to CPLP:
Capital Product Partners L.P.
c/o Capital Ship Management Corp.
3 Iassonos Street
Piraeus 18537 Greece
Facsimile: +30 210 428 4879
Attn: Ioannis E. Lazaridis
Email: i.lazaridis@capitalpplp.com
with a copy to:
Sullivan & Cromwell LLP
125 Broad Street
New York, New York 10004
Attention: Jay Clayton
Facsimile: (212) 291-9026
Email: claytonj@sullcrom.com
or to such other address as CPLP or such Purchaser may designate in writing. All notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; at the time of transmittal, if sent via electronic mail; upon actual receipt if sent by certified mail, return receipt requested, or regular mail, if mailed; when receipt is acknowledged, if sent via facsimile; and upon actual receipt when delivered to an air courier guaranteeing overnight delivery.
Section 7.07 Removal of Legend
In connection with a sale of the Purchased Units or Common Units upon conversion of the Purchased Units by a Purchaser in reliance on Rule 144, the applicable Purchaser or its broker shall deliver to the transfer agent and CPLP a customary broker representation letter providing to the transfer agent and CPLP any information CPLP deems reasonably necessary to determine that the sale of the Purchased Units or Common Units, as applicable, is made in compliance with Rule 144, including, as may be appropriate, a certification that the Purchaser is not an Affiliate of CPLP and regarding the length of time the Purchased Units and/or the Common Units, as applicable, have been held. Upon receipt of such representation letter, CPLP shall promptly direct its transfer agent to remove the notation of a restrictive legend in such Purchaser’s certificates evidencing the Purchased Units or the book-entry account maintained by the transfer agent, including the legend referred to in Section 4.9, and CPLP shall bear all costs associated therewith. After a registration statement under the Securities Act permitting the public resale of the Common Units issued upon conversion of the Purchased Units has become effective or any Purchaser or its permitted assigns have held the Purchased Units and/or the Common Units for at least one year, if the certificate evidencing such Purchased Units or Common Units issued upon conversion thereof or the book-entry account with the transfer agent of such Purchased Units or Common Units, as applicable, still bears the notation of the restrictive legend referred to in Section 4.09, CPLP agrees, upon request of the Purchaser or permitted assignee, to take all steps necessary to promptly effect the removal of the
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Section 7.08 Entire Agreement
This Agreement, the other Basic Documents and the other agreements and documents referred to herein are intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein and therein. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein or in the other Basic Documents with respect to the rights granted by CPLP or any of its Affiliates or the Purchasers or any of their Affiliates set forth herein or therein. This Agreement, the other Basic Documents and the other agreements and documents referred to herein or therein supersede all prior agreements and understandings between the parties with respect to such subject matter.
Section 7.09 Governing Law
This Agreement will be construed in accordance with and governed by the laws of the State of New York.
Section 7.10 Execution in Counterparts
This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same Agreement.
Section 7.11 Termination
(a) Notwithstanding anything herein to the contrary, this Agreement may be terminated at any time at or prior to the Closing by the written consent of the Purchasers representing a majority of the aggregate Purchase Price, (i) upon a CPLP Material Adverse Effect or (ii) upon a breach in any material respect by CPLP of any covenant or agreement set forth in this Agreement.
(b) Notwithstanding anything herein to the contrary, this Agreement shall automatically terminate at any time at or prior to the Closing:
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(i) if a statute, rule, order, decree or regulation shall have been enacted or promulgated, or if any action shall have been taken by any Governmental Authority of competent jurisdiction that permanently restrains, permanently precludes, permanently enjoins or otherwise permanently prohibits the consummation of the transactions contemplated by this Agreement or makes the transactions contemplated by this Agreement illegal; or
(ii) if the Closing shall not have occurred on or before June 11, 2012.
(c) In the event of the termination of this Agreement as provided in this Section 7.11, this Agreement shall forthwith become null and void. In the event of such termination, there shall be no liability on the part of any party hereto, except as set forth in Article VI of this Agreement; provided that nothing herein shall relieve any party from any liability or obligation with respect to any willful or intentional breach of this Agreement.
Section 7.12 Recapitalization, Exchanges, Etc. Affecting the Purchased Units
The provisions of this Agreement shall apply to the full extent set forth herein with respect to any and all equity interests of CPLP or any successor or assign of CPLP (whether by merger, consolidation, sale of assets or otherwise) which may be issued in respect of, in exchange for or in substitution of, the Purchased Units, and shall be appropriately adjusted for combinations, recapitalizations and the like occurring after the date of this Agreement.
[Signature pages follow.]
29
IN WITNESS WHEREOF, the parties hereto execute this Agreement, effective as of the date first above written.
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CAPITAL PRODUCT PARTNERS L.P.
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By: /s/ Ioannis E. Lazaridis
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|
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Name: Ioannis E. Lazaridis
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Title: Authorized Person
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Signature Page to Class B Convertible Preferred Unit Subscription Agreement
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CAPITAL MARITIME & TRADING CORP.
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By: /s/ Ioannis E. Lazaridis
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Name: Ioannis E. Lazaridis
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Title: Authorized Person
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Signature Page to Class B Convertible Preferred Unit Subscription Agreement
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OAKTREE FF INVESTMENT FUND, L.P. - CLASS B
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| By: Oaktree FF Investment Fund GP, L.P., its General Partner | |
| By: Oaktree FF Investment Fund GP Ltd., its General Partner | |
| By: Oaktree Capital Management, L.P., its Director | |
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By: /s/ Jennifer Box
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Name: Jennifer Box
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Title: Vice President
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| By: /s/ Scott Graves | |
| Name: Scott Graves | |
| Title: Managing Director | |
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OAKTREE VALUE OPPORTUNITIES FUND, L.P.
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| By: Oaktree Value Opportunities Fund, GP, L.P., its General Partner | |
| By: Oaktree Value Opportunities Fund GP Ltd., its General Partner | |
| By: Oaktree Capital Management, L.P., its Director | |
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By: /s/ Jennifer Box
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Name: Jennifer Box
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Title: Vice President
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| By: /s/ Scott Graves | |
| Name: Scott Graves | |
| Title: Managing Director | |
Signature Page to Class B Convertible Preferred Unit Subscription Agreement
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THE CUSHING MLP PREMIER FUND
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| By: Cushing MLP Asset Management, L.P., its investment advisor | |
| By: Swank Capital LLC, its general partner | |
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By: /s/ Jerry V. Swank
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Name: Jerry V. Swank
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Title: Managing Member
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THE CUSHING MLP TOTAL RETURN FUND
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| By: Cushing MLP Asset Management, LP, its investment advisor | |
| By: Swank Capital LLC, its general partner | |
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By: /s/ Jerry V. Swank
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Name: Jerry V. Swank
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Title: Managing Member
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SWANK MLP CONVERGENCE FUND LP
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| By: Cushing MLP Asset Management, LP, its investment advisor | |
| By: Swank Capital LLC, its general partner | |
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By: /s/ Jerry V. Swank
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Name: Jerry V. Swank
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Title: Managing Member
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Signature Page to Class B Convertible Preferred Unit Subscription Agreement
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KAYNE ANDERSON ENERGY TOTAL RETURN FUND, INC.
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| By: KA Fund Advisors, LLC, as Manager | |
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By: /s/ James C. Baker
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Name: James C. Baker
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Title: Managing Director
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Signature Page to Class B Convertible Preferred Unit Subscription Agreement
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SALIENT MLP & ENERGY INFRASTRUCTURE FUND, INC.
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| By: Salient Capital Advisors, LLC | |
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By: /s/ Gregory A. Reid
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Name: Gregory A. Reid
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Title: President
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SALIENT MLP FUND, L.P.
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| By: Salient Capital Advisors, LLC | |
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By: /s/ Gregory A. Reid
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Name: Gregory A. Reid
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Title: President
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SALIENT MLP TE FUND, L.P.
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| By: Salient Capital Advisors, LLC | |
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By: /s/ Gregory A. Reid
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Name: Gregory A. Reid
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Title: President
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Signature Page to Class B Convertible Preferred Unit Subscription Agreement
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THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
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By: /s/ Chris P. Swain
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Name: Chris P. Swain
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Title: Its Authorized Representative
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THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY FOR ITS GROUP ANNUITY SEPARATE ACCOUNT
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By: /s/ Chris P. Swain
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Name: Chris P. Swain
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Title: Its Authorized Representative
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Signature Page to Class B Convertible Preferred Unit Subscription Agreement
| SPRING CREEK CAPITAL, LLC | |
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By: /s/ Brock Nelson
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Name: Brock Nelson
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Title: President
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Signature Page to Class B Convertible Preferred Unit Subscription Agreement
Schedule A – List of Purchasers and Commitment Amounts
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Purchaser
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Purchased Units
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Total Purchase Price (prior to any adjustment set forth in Section 2.01(b))
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Kayne Anderson Energy Total Return Fund, Inc.
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3,333,333
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$29,999,997
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Capital Maritime & Trading Corp.
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2,944,444
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$26,499,996
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Oaktree Value Opportunities Fund, L.P.
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2,222,222
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$19,999,998
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Oaktree FF Investment Fund, L.P - Class B
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1,111,111
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$9,999,999
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The Cushing MLP Premier Fund
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1,111,111
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$9,999,999
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The Cushing MLP Total Return Fund
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1,111,111
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$9,999,999
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Swank MLP Convergence Fund LP
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111,111
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$999,999
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Spring Creek Capital, LLC
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833,333
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$7,499,997
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Salient MLP & Energy Infrastructure Fund
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666,667
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$6,000,003
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Salient MLP Fund, L.P.
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377,778
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$3,400,002
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Salient MLP TE Fund, L.P.
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66,667
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$600,003
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The Northwestern Mutual Life Insurance Company
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533,333
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$4,799,997
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The Northwestern Mutual Life Insurance Company for its Group Annuity Separate Account
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22,222
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$199,998
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Total
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14,444,443
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$129,999,987
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Schedule A
Schedule B – Notice and Contact Information
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Purchaser
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Address
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Kayne Anderson Energy Total Return Fund, Inc.
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Kayne Anderson Capital Advisors, L.P.
717 Texas, Suite 3100
Houston, Texas 77002
Attention: James Baker
Facsimile: (713) 655-7359
jbaker@kaynecapital.com
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Capital Maritime & Trading Corp.
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Capital Maritime & Trading Corp.
3 Iassonos St.
Piraeus 18537, Greece
Attention: Ioannis E. Lazaridis
Facsimile: +30 (210) 428-4285
i.lazaridis@capitalpplp.com
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Oaktree Value Opportunities Fund, L.P.
Oaktree FF Investment Fund, L.P - Class B
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Oaktree Capital Management, L.P.
333 S. Grand Ave., 29th Floor
Los Angeles, California 90071
Attention: Jennifer Box
Facsimile: (213) 830-8575
jbox@oaktreecapital.com
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The Cushing MLP Premier Fund
The Cushing MLP Total Return Fund
Swank MLP Convergence Fund LP
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Swank Capital, LLC
8117 Preston Road, Suite 440
Dallas, Texas 75225
Attention: Daniel L. Spears
Facsimile: (214) 219-2353
dspears@swankcapital.com
with a copy to:
Swank Capital, LLC
8117 Preston Road, Suite 440
Dallas, Texas 75225
Attention: Barry Greenberg
Facsimile: (214) 219-2353
bgreenberg@swankcapital.com
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Schedule B
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Salient MLP & Energy Infrastructure Fund
Salient MLP Fund, L.P.
Salient MLP TE Fund, L.P.
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Salient MLP Fund, LP
4265 San Felipe, Suite 800
Houston, TX 77027
Attn: Salient Capital Advisor LLC - MLP Fund Operations
Facsimile: (713) 993-4698
greid@salientpartners.com
mhibbetts@salientpartners.com
pcanlas@salientpartners.com
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Spring Creek Capital, LLC
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Spring Creek Capital, LLC
4111 East 37th St. North
Wichita, Kansas 67212
Attention: Brock Nelson
Facsimile: (316) 828-7101
nelsonb@kochind.com
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The Northwestern Mutual Life Insurance Company
The Northwestern Mutual Life Insurance Company for its Group Annuity Separate Account
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The Northwestern Mutual Life Insurance Company
720 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: Sean Twohig
Facsimile: (414) 665-7124
seantwohig@northwesternmutual.com
with a copy to:
The Northwestern Mutual Life Insurance Company
720 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: Abim Kolawole, Esq.
Facsimile: (414) 625-1748
abimkolawole@northwesternmutual.com
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Schedule B
Exhibit A – Form of Second Amendment to Second Amended and Restated Agreement of Capital Product Partners L.P. Limited Partnership, as amended
Exhibit A
Exhibit B – Terms of Amendments to CPLP Credit Facilities
The terms of the CPLP Credit Facilities will be amended as described in the table below (collectively, the “Amendments”). Other than as described below, no terms of the CPLP Credit Facilities will be changed.
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Terms
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Revolving $370.0 Million Credit Facility
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Revolving $350.0 Million Credit Facility
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Term Loan Facility
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Paydown Amount ($)
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$95,150,000
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$48,416,000
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$6,000,000
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Number of Amortization Payment Deferrals
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3 quarterly periods
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3 quarterly periods
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3 quarterly periods
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Next Amortization Payment Date
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March 2016
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March 2016
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March 2016
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Facility Availability (immediately after Paydown)
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Converts to a Term Loan
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Tranche B is cancelled; Tranche C remains available
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No change
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Amendment Fee
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$50,000
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$50,000
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-
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Change in Interest Rate
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Increased to: LIBOR plus 200 basis points
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Increased to: LIBOR plus 300 basis points
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No change
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Quarterly Amortization Installment Amount (for remaining repayments until maturity)
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$12,975,000
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$8,069,333
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$1,000,000
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Exhibit B
Exhibit C – Registration Rights Agreement
Exhibit C
EXHIBIT II
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF CAPITAL PRODUCT PARTNERS L.P.
THIS SECOND AMENDMENT, dated as of May 22, 2012 (this “Amendment”), to the Second Amended and Restated Agreement of Limited Partnership of Capital Product Partners L.P. (the “Partnership”), dated as of February 22, 2010, as amended (the “LP Agreement”), is entered into by the Partnership.
WHEREAS, the LP Agreement provides that the Partnership may issue additional Partnership Securities for any Partnership purpose, at any time and from time to time, to such Persons for such consideration and on such terms and conditions as the Board of Directors may determine;
WHEREAS, the Board of Directors has determined that the creation, authorization and issuance of the Class B Convertible Preferred Units (as defined below) is advisable and in the best interests of the Partnership;
WHEREAS, the Board of Directors has determined that the creation and issuance of the Class B Convertible Preferred Units complies with the requirements of the LP Agreement; and
WHEREAS, the Board of Directors has determined that the amendments to the LP Agreement set forth herein are necessary and appropriate in connection with the creation, authorization and issuance of the Class B Convertible Preferred Units.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows, intending to be legally bound hereby:
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1.
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Amendments to the LP Agreement.
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1.1 Section 1.1 of the LP Agreement is hereby amended to add, or in the case of existing definitions to amend and restate in their entirety the following definitions:
“Available Cash” means, with respect to any Quarter ending prior to the Liquidation Date:
(a) the sum of (i) all cash and cash equivalents of the Partnership Group on hand at the end of such Quarter, and (ii) all additional cash and cash equivalents of the Partnership Group on hand on the date of determination of Available Cash with respect to such Quarter resulting from Working Capital Borrowings made subsequent to the end of such Quarter, less
(b) the amount of any cash reserves established by the Board of Directors to (i) provide for the proper conduct of the business of the Partnership Group (including reserves for future capital expenditures and for anticipated future credit needs of the Partnership Group) subsequent to such Quarter, (ii) comply with applicable law or any loan agreement, security agreement, mortgage, debt instrument or other agreement or obligation to which any Group Member is a party or by which it is bound or its assets are subject and/or (iii) provide funds for
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distributions under Sections 5.10(b), 6.2 or 6.3 in respect of any one or more of the next four Quarters; provided, however, that the Board of Directors may not establish cash reserves pursuant to clause (b)(iii) above (A) in respect of the Class B Convertible Preferred Units, if the effect of such reserves would be that the Partnership is unable to distribute the Minimum Quarterly Class B Convertible Preferred Unit Distribution Rate on all Class B Convertible Preferred Units, plus any Cumulative Class B Convertible Preferred Unit Arrearage on all Class B Convertible Preferred Units, with respect to such Quarter or (B) in respect of the Common Units if the effect of such reserves would be that the Partnership is unable to distribute the Minimum Quarterly Class B Convertible Preferred Unit Distribution Rate on all Class B Convertible Preferred Units and the Minimum Quarterly Distribution on all Common Units, plus any Cumulative Common Unit Arrearage on all Common Units, with respect to such Quarter; and, provided, further, that disbursements made by a Group Member or cash reserves established, increased or reduced after the end of such Quarter but on or before the date of determination of Available Cash with respect to such Quarter shall be deemed to have been made, established, increased or reduced, for purposes of determining Available Cash, within such Quarter if the Board of Directors so determines.
Notwithstanding the foregoing, “Available Cash” with respect to the Quarter in which the Liquidation Date occurs and any subsequent Quarter shall equal zero.
“Board of Directors” means the up to eight-member board of directors of the Partnership, composed of Appointed Directors and Elected Directors appointed or elected, as the case may be, in accordance with the provisions of Article VII and a majority of whom are not United States citizens or residents, which, pursuant to and in accordance with the terms of this Agreement, oversees and directs the operations, management and policies of the Partnership; provided, however, that if there is a Voting Rights Triggering Event, it means the up to nine-member board of directors of the Partnership, composed of Appointed Directors and Elected Directors appointed or elected, as the case may be, in accordance with the provisions of Article VII. The Board of Directors shall constitute a committee within the meaning of Section 30(2)(g) of the Marshall Islands Act.
“Cash Event” has the meaning assigned to such term in Section 5.10(b)(xii)(A).
“Cash Consideration” has the meaning assigned to such term in Section 5.10(b)(xii)(A).
“Certificate” means (a) with respect to the Common Units, a certificate (i) substantially in the form of Exhibit A to this Agreement, (ii) issued in global or book entry form in accordance with the rules and regulations of the Depositary, or (iii) in such other form as may be adopted by the Board of Directors, issued by the Partnership evidencing ownership of one or more Common Units; (b) with respect to the Class B Convertible Preferred Units, (i) a certificate substantially in the form of Exhibit B to this Agreement, (ii) issued in global or book entry form, or (iii) in such form as may be adopted by the Board of Directors, issued in accordance with Section 5.10(b)(viii) and evidencing ownership of one or more Class B Convertible Preferred Units; or (c) a certificate, in such form as may be adopted by the Board of Directors, issued by the Partnership evidencing ownership of one or more other Partnership Securities.
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“Change of Control” shall occur if (a) the current ultimate beneficial owner of the limited liability company interests of the General Partner ceases to be the ultimate beneficial owner of the largest number of limited liability company interests (excluding any reputable financial institution maintaining a passive investment interest) of the General Partner and ceases to have executive control in the management of the owner of the General Partner; or (b) the General Partner, or any Affiliate thereof, would cease to be the general partner of the Partnership.
“Class B Convertible Preferred Unit” means a Partnership Security representing a fractional part of the Partnership Interests of all Limited Partners, and having the rights and obligations specified with respect to Class B Convertible Preferred Units in this Agreement. The term “Class B Convertible Preferred Unit” does not refer to a Common Unit prior to the conversion of a Class B Convertible Preferred Unit into a Common Unit pursuant to the terms hereof.
“Class B Convertible Preferred Unit Arrearage” as of the end of any Quarter means, with respect to any Class B Convertible Preferred Unit, whenever issued, the excess, if any, of (a) the Minimum Quarterly Class B Convertible Preferred Unit Distribution Rate with respect to a Class B Convertible Preferred Unit in respect of such Quarter over (b) the sum of all Available Cash actually distributed with respect to a Class B Convertible Preferred Unit in respect of such Quarter pursuant to Section 5.10(b)(ii)(A)(xi).
“Class B Convertible Preferred Unit Conversion Date” means, with respect to any Class B Convertible Preferred Unit:
(a) pursuant to the Holder Conversion Right, the time immediately prior to the close of business on the date on which a Certificate representing such Class B Convertible Preferred Unit and a duly signed Holder Conversion Notice have been received by the Partnership; and
(b) pursuant to the Partnership Mandatory Conversion Right, the time immediately prior to the close of business on the date on which the Partnership transmits a Partnership Mandatory Conversion Notice to the holders of the Class B Convertible Preferred Units.
“Class B Convertible Preferred Unit Director” has the meaning assigned to such term in Section 5.10(b)(v)(C).
“Class B Convertible Preferred Unit Distribution Payment Date” has the meaning assigned to such term in Section 5.10(b)(ii)(A).
“Class B Convertible Preferred Unit Distribution Payment Default” means any time the Cumulative Class B Convertible Preferred Unit Arrearage as of the end of a Quarter is equal to or greater than the product of four (4) and the Minimum Quarterly Class B Convertible Preferred Unit Distribution Rate.
“Class B Convertible Preferred Unit Issue Date” means May 22, 2012.
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“Class B Convertible Preferred Unit Liquidation Value” has the meaning assigned to such term in Section 5.10(b)(iv).
“Class B Convertible Preferred Unit Subscription Agreement” means the subscription agreement between the Partnership and certain Persons, dated May 11, 2012, set forth on Schedule I hereto.
“Class B Per Unit Purchase Price” means $9.00 per Class B Convertible Preferred Unit.
“Common Unit” means a Partnership Security representing a fractional part of the Partnership Interests of all Limited Partners, and having the rights and obligations specified with respect to Common Units in this Agreement. The term “Common Unit” does not refer to a Subordinated Unit or a Class B Convertible Preferred Unit, in each case prior to its conversion into a Common Unit pursuant to the terms hereof.
“Conversion Ratio” has the meaning assigned to such term in Section 5.10(b)(ix)(A).
“Conversion Price” has the meaning assigned to such term in Section 5.10(b)(ix)(A).
“Cross Default” means a default by the Partnership under any credit facility if such default (a) is caused by a failure to pay principal of, or any interest or premium on, outstanding indebtedness under the credit facility (other than non-recourse indebtedness of any subsidiary) prior to the expiration of any grace period for payment of such indebtedness permitted by such credit facility, or (b) results in the acceleration of the outstanding indebtedness under the credit facility prior to its maturity, and in each case, the principal amount of any such indebtedness, together with the principal amount of any other such indebtedness under which there has been a payment default or the maturity of which has been so accelerated, aggregates to $25 million or more; provided, however, that to the extent any default by the Partnership under a credit facility is waived, such default shall not be a Cross Default.
“Cumulative Class B Convertible Preferred Unit Arrearage” means, with respect to any Class B Convertible Preferred Unit, as of the end of any Quarter, the excess, if any, of
(a) the sum resulting from adding together the Class B Convertible Preferred Unit Arrearage as to such Class B Convertible Preferred Unit for each Quarter ending on or before the last day of such Quarter over
(b) the sum of
(i) the sum of any distributions theretofore made pursuant to Section 5.10(b)(ii)(A)(y) (including any distributions to be made in respect of the last of such Quarters) with respect to such Class B Convertible Preferred Unit and
(ii) the excess, if any, of
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(A) the sum of all amounts previously distributed with respect to each Class B Convertible Preferred Unit pursuant to Section 6.3 over
(B) the Class B Per Unit Purchase Price.
“Excess Amount” has the meaning assigned to such term in Section 5.10(b)(xiii)(C).
“Fair Market Value” means of securities shall be determined as follows: securities that are listed on the consolidated tape and are freely transferable shall be valued at fair market value at their last sales price on the consolidated tape on the date of determination or, if no sales occurred on such day, at their last sales price on the most recent session at which such securities were traded. Securities traded over the counter which are freely transferable shall be valued at the last “Bid” price at the close of business on such day and if sold short at the last “asked” price at the close of business on such day. The Fair Market Value of all other assets or securities shall be determined by the Board of Directors in good faith, whose determination shall be conclusive.
“Financial Indebtedness” means for any Person (the “debtor”), any liability of the debtor (a) for principal, interest or any other sum payable in respect of any moneys borrowed or raised by the debtor; (b) under any loan stock, bond, note or other security issued by the debtor; (c) under any acceptance credit, guarantee or letter of credit facility made available to the debtor; (d) under a financial lease, a deferred purchase consideration arrangement or any other agreement having the commercial effect of a borrowing or raising of money by the debtor; (e) under any interest or currency swap or any other kind of derivative transaction entered into by the debtor or, if the agreement under which any such transaction is entered into requires netting of mutual liabilities, the liability of the debtor for the net amount; or (f) under a guarantee, indemnity or similar obligation entered into by the debtor in respect of a liability of another Person which would fall within (a) to (e) if the references to the debtor referred to the other Person.
“Fleet Vessels” means all of the vessels from time to time wholly owned by the Partnership and its Subsidiaries.
“Holder Conversion Notice” has the meaning assigned to such term in Section 5.10(b)(ix)(B).
“Holder Conversion Right” has the meaning assigned to such term in Section 5.10(b)(ix)(A).
“Market Value” means, in respect of each Fleet Vessel, the market value thereof determined from time to time, with or without physical inspection of the relevant Fleet Vessel, on the basis of a sale for prompt delivery for cash on normal arm’s-length commercial terms as between a willing seller and a willing buyer, free of any existing charter or other contract of employment and after deducting the estimated amount of the usual and reasonable expenses which would be incurred in connection with the sale.
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“Minimum Quarterly Class B Convertible Preferred Unit Distribution Rate” means for the initial distribution payable on the Class B Convertible Preferred Units for the period between May 22, 2012 and June 30, 2012 which will be paid on approximately August 10, 2012, $0.26736 per Class B Convertible Preferred Unit. For every period thereafter beginning on July 1, 2012 through May 22, 2022, $0.21375 per Quarter per Class B Convertible Preferred Unit (equal to a 9.5% annual distribution rate), subject to adjustment in the cases where clause (i) and/or clause (ii) applies (for the avoidance of doubt, if both clause (i) and clause (ii) apply, both adjustments shall be made); or (b) for periods subsequent to May 22, 2022, a rate that is 1.25 times the then applicable distribution rate payable on the Class B Convertible Preferred Units as of the close of business on May 22, 2022 and on each subsequent Class B Convertible Preferred Unit Distribution Payment Date, the then applicable distribution rate payable shall increase to a rate that is 1.25 times the then applicable distribution rate payable on the Class B Convertible Preferred Units as in effect as of the close of business on the day immediately preceding such distribution payment date, until the Class B Convertible Preferred Units are no longer outstanding, subject to adjustment in the cases where clause (i) and/or clause (ii) applies, in all cases, whether or not actually declared by the Board of Directors.
(i) In the event the Partnership experiences a Change of Control, a rate that is 1.25 times the then applicable distribution rate payable on the Class B Convertible Preferred Units as of the close of business on the day immediately preceding the occurrence of a Change of Control;
(ii) Upon the occurrence of a Cross Default or a Class B Convertible Preferred Unit Distribution Payment Default, a rate that is 1.25 times the then applicable distribution rate payable on the Class B Convertible Preferred Units as of the close of business on the day immediately preceding the Cross Default or Class B Convertible Preferred Unit Payment Default, as applicable, and on each subsequent Class B Convertible Preferred Unit Distribution Payment Date, the then applicable distribution rate payable shall increase to a rate that is 1.25 times the then applicable distribution rate payable on the Class B Convertible Preferred Units as in effect as of the close of business on the day immediately preceding such distribution payment date, until the Cross Default or Class B Convertible Preferred Unit Distribution Payment Default is cured (at which time the rate shall equal the rate in effect prior to any adjustment pursuant to this clause (ii)) or the Class B Convertible Preferred Units are no longer outstanding;
provided, that, notwithstanding anything herein to the contrary, the applicable distribution rate for the Class B Convertible Preferred Units shall not at any time exceed $0.33345 (equal to 1.56 times the distribution rate of $0.21375).
“Non-Cash Consideration” has the meaning assigned to such term in Section 5.10(b)(xii)(A).
“Outstanding” means, with respect to Partnership Securities, all Partnership Securities that are issued by the Partnership and reflected as outstanding on the Partnership’s books and records as of the date of determination; provided, however, that if at any time any Person or Group (other than the General Partner or its Affiliates) beneficially owns 5% or more of the Outstanding Partnership Securities of any class then Outstanding, all Partnership
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Securities owned by such Person or Group in excess of 4.9% of the Outstanding Partnership Securities of such class shall not be voted on any matter and shall not be considered to be Outstanding in the hands of such Person or Group (except for purposes of Section 11.1(b)(iv)) when sending notices of a meeting of Limited Partners to vote on any matter (unless otherwise required by law), calculating required votes, except for purposes of nominating a Person for election to the Board of Directors pursuant to Section 7.3, determining the presence of a quorum or for other similar purposes under this Agreement, and the voting rights of any such Person or Group in excess of 4.9% shall be redistributed pro rata among the other owners of Partnership Securities of the same class holding less than 4.9% of the voting power (such Partnership Securities shall not, however, be treated as a separate class of Partnership Securities for purposes of this Agreement); provided, further, that the foregoing limitation shall not apply to (i) any Person or Group who acquired 5% or more of the Outstanding Partnership Securities of any class then Outstanding directly from the General Partner or its Affiliates, (ii) any Person or Group who acquired 5% or more of any Outstanding Partnership Securities of any class then Outstanding directly or indirectly from a Person or Group described in clause (i) provided that the General Partner shall have notified such Person or Group in writing that such limitation shall not apply, or (iii) any Person or Group who acquired 5% or more of any Partnership Securities issued by the Partnership with the prior approval of the Board of Directors, but in each case (x) only in respect of the Partnership Securities so acquired and for so long as such Partnership Securities are beneficially owned by such Person or Group, and (y) only to the extent that voting power in excess of 4.9% held by any such Person or Group would not jeopardize the Partnership’s tax exemption under Section 883 of the Code (or any successor or similar provision of the Code) as determined by the Board of Directors in its sole discretion; provided, that if the Board of Directors, acting alone, makes such determination, it is hereby expressly permitted to amend this Agreement if it is determined to be necessary in order to preserve such tax exemption and then, only to the extent necessary. For the avoidance of doubt, the Board of Directors has approved the issuance of the Class B Convertible Preferred Units (including the Common Units issued upon conversion thereof) to the Purchasers pursuant to the Class B Convertible Preferred Unit Subscription Agreement in accordance with clause (iii) of the immediately preceding sentence (including the Common Units issued upon conversion thereof), subject to the limitations set forth therein.
“Parity Interests” means any equity interest in the Partnership that, with respect to distributions on such interests or distributions upon liquidation, dissolution or winding up of the Partnership, ranks pari passu with the Class B Convertible Preferred Units.
“Partnership Event” has the meaning assigned to such term in Section 5.10(b)(xii)(A).
“Partnership Mandatory Conversion Event” has the meaning assigned to such term in Section 5.10(b)(ix)(C).
“Partnership Mandatory Conversion Notice” has the meaning assigned to such term in Section 5.10(b)(ix)(E).
“Partnership Mandatory Conversion Right” has the meaning assigned to such term in Section 5.10(b)(ix)(C).
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“Partnership Restructure” means any transaction or series of related transactions, or any event, the result of which will be, or is, (i) that more than 75% of the voting power of the Common Units (not including the Class B Convertible Preferred Units) is held by a person or group of persons that are Affiliates of the General Partner; (ii) the Common Units cease to be listed on a U.S. national securities exchange; provided, however, that a delisting resulting solely from the Partnership’s failure to meet the minimum listing standards because of the trading price of the Common Units that cannot be cured using commercially reasonable efforts shall not be considered a Partnership Restructure; (iii) a merger or consolidation approved by the Board of Directors and the General Partner, to the extent such approvals are required; or (iv) a going private transaction of the Partnership, meaning that less than 50% of the Common Units outstanding as of May 22, 2012 are outstanding (provided that for purposes of this clause (iv) Common Units held by the General Partner or any of its Affiliates shall not be considered outstanding).
“Partnership Security” means any class or series of equity interest in the Partnership (but excluding any options, rights, warrants and appreciation rights relating to an equity interest in the Partnership), including Common Units, Class B Convertible Preferred Units, Subordinated Units and Incentive Distribution Rights.
“Percentage Interest” means as of any date of determination (a) as to the General Partner with respect to General Partner Units and as to any Unitholder with respect to Units, the product obtained by multiplying (i) 100% less the percentage applicable to clause (b) below by (ii) the quotient obtained by dividing (A) the number of Units held by such Unitholder or the number of General Partner Units held by the General Partner, as the case may be, by (B) the total number of all outstanding Units and General Partner Units (for purposes of this calculation, the Class B Convertible Preferred Units shall be included based on the number of Common Units into which such Class B Convertible Preferred Units may be converted pursuant to Section 5.10(b)(ix)), and (b) as to the holders of other Partnership Securities issued by the Partnership in accordance with Section 5.5, the percentage established as a part of such issuance. The Percentage Interest with respect to an Incentive Distribution Right shall at all times be zero.
“Preferred Consideration” has the meaning assigned to such term in Section 5.10(b)(xii)(A).
“Pro Rata Portion” means, as of the date of any issuance of Parity Interests, as to any holder of Class B Convertible Preferred Units, the quotient obtained by dividing (A) the number of Class B Convertible Preferred Units held by such holder by (B) the total number of Class B Convertible Preferred Units held by all holders exercising the Right of First Offer provided by Section 5.10(b)(xiv).
“Redemption Date” has the meaning assigned to such term in Section 5.10(b)(xi)(B).
“Redemption Notice” has the meaning assigned to such term in Section 5.10(b)(xi)(D).
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“Senior Interest” means any equity interest in the Partnership that, with respect to distributions on such Partnership Interests or distributions upon liquidation of the Partnership, ranks senior to the Class B Convertible Preferred Units.
“Survivor Preferred Security” has the meaning assigned to such term in Section 5.10(b)(xii)(A).
“Total Indebtedness” means the aggregate Financial Indebtedness of the Partnership and its Subsidiaries as stated in the most recent annual audited consolidated or unaudited quarterly financial reports as filed with the Commission.
“Unit” means a Partnership Security that is designated as a “Unit” and shall include Common Units, Subordinated Units and Class B Convertible Preferred Units but shall not include (i) General Partner Units (or the General Partner Interest represented thereby) or (ii) the Incentive Distribution Rights.
“Voting Rights Triggering Event” has the meaning assigned to such term in Section 5.10(b)(v)(C).
“VWAP” as of a particular date means the volume-weighted average trading price, as adjusted for splits, combinations and other similar transactions, of a Common Unit.
1.2 Section 4.1 of the LP Agreement is hereby amended to insert the following after the first sentence therein:
Upon the Partnership’s issuance of Class B Convertible Preferred Units to any Person, the Partnership shall issue, upon the request of such Person, one or more Certificates in the name of such Person in accordance with Section 5.10(b)(viii).
and further amended to insert the following after the last sentence therein:
Subject to the requirements of Section 5.10(b), the Partners holding Certificates evidencing Class B Convertible Preferred Units may exchange such Certificates for Certificates evidencing Common Units on or after the date on which such Class B Convertible Preferred Units are converted into Common Units pursuant to the terms of Section 5.10(b)(ix).
1.3 Section 5.9(a) of the LP Agreement is hereby amended and restated in its entirety to read as follows:
Section 5.9 Splits and Combinations. (a) Subject to Sections 5.9(d) and 6.4 (dealing with adjustments of distribution levels), the Partnership may make a Pro Rata distribution of Partnership Securities to all Record Holders or may effect a subdivision or combination of Partnership Securities so long as, after any such event, each Partner shall have the same Percentage Interest in the Partnership as before such event, and any amounts calculated on a per Unit basis (including any Common Unit Arrearage, Cumulative Common Unit Arrearage, the Class B Per Unit Purchase Price, the Class B Convertible Preferred Unit Liquidation Value, the Class B Convertible Preferred Unit Arrearage and the Cumulative Class B
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Convertible Preferred Unit Arrearage) or stated as a number of Units are proportionately adjusted.
1.4 Article V of the LP Agreement is hereby amended to add the following as a new Section 5.10, with the current Section 5.10 to be renumbered as Section 5.11:
Section 5.10 Establishment of Class B Convertible Preferred Units.
(a) Designation and Number. The Partnership hereby designates and creates a class of Units to be designated as Class B Convertible Preferred Units and consisting of a total of 17,777,778 Class B Convertible Preferred Units, representing a fractional part of the Partnership Interests of all Limited Partners, and having the same rights, preferences and privileges, and subject to the same duties and obligations, as the Common Units, except as set forth in this Section 5.10. The class of Class B Convertible Preferred Units shall be closed immediately following the Class B Convertible Preferred Unit Issue Date and thereafter no additional Class B Convertible Preferred Units shall be designated, created or issued except (i) with the affirmative vote or written consent of the holders of a majority of the outstanding Class B Convertible Preferred Units, voting as a class based upon one vote per Class B Convertible Preferred Unit or (ii) for the issuance and sale by the Partnership on or before June 1, 2012 of up to an additional $10 million in aggregate Class B Convertible Preferred Units at the Class B Per Unit Purchase Price to a single Person.
(b) Rights of Class B Convertible Preferred Units. The Class B Convertible Preferred Units shall have the following rights, preferences and privileges and shall be subject to the following duties and obligations:
(i) Rank.
The Class B Convertible Preferred Units, with respect to rights to payment of distributions and amounts payable upon liquidation, dissolution or winding up of the Partnership, including distributions from any Capital Surplus, rank (A) senior to all classes of the Partnership’s Common Units, General Partner Units and the Incentive Distribution Rights and to each other class or series of equity securities established after the original issue date of the Class B Convertible Preferred Units that is not expressly made senior to or on parity with the Class B Convertible Preferred Units as to the payment of distributions and/or amounts payable upon liquidation, dissolution or winding up; (B) pari passu with any other class or series of equity securities established after the Class B Convertible Preferred Unit Issue Date that is not expressly subordinated or senior to the Class B Convertible Preferred Units as to the payment of distributions and/or amounts payable upon liquidation, dissolution or winding up; provided, that any such payments of distributions and/or amounts payable upon liquidation, dissolution or winding up are made pro rata among all pari passu classes; and (C) junior to all of the Partnership’s indebtedness and other liabilities with respect to assets available to satisfy claims against the Partnership and the Class B Convertible Preferred Units and each other class or series of equity securities expressly made senior to Class B Convertible Preferred Units as to the payment of distributions and amounts payable upon liquidation, dissolution or winding up. No distribution on, repurchase of, redemption of, or
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acquisition of any Partnership Securities that rank junior to the Class B Convertible Preferred Units may be authorized, declared or paid by the Board of Directors if there is a Cumulative Class B Convertible Preferred Unit Arrearage until such Cumulative Class B Convertible Preferred Unit Arrearage plus the Minimum Quarterly Class B Convertible Preferred Unit Distribution Rate for such Quarter is paid in full.
(ii) Distributions.
(A) Pursuant to Article VI of this Agreement but subject to the rights of holders of any Partnership Units ranking senior to the Class B Convertible Preferred Units as to the payment of distributions, the holders of the outstanding Class B Convertible Preferred Units as of an applicable Record Date, which shall be the date that is one week prior to the applicable Class B Convertible Preferred Unit Distribution Payment Date, shall be entitled to receive, when, as and if authorized by the Board of Directors or any duly authorized committee, out of legally available funds for such purpose, (x) first, the Minimum Quarterly Class B Convertible Preferred Unit Distribution Rate on each Class B Convertible Preferred Unit and (y) second, any Cumulative Class B Convertible Preferred Unit Arrearage then outstanding, prior to any other distributions made in respect of any other Partnership Interests pursuant to Sections 6.2 or 6.3, in cash. The Minimum Quarterly Class B Convertible Preferred Unit Distribution Rate shall be payable quarterly when, as and if authorized by the Board of Directors, in equal amounts immediately prior to the payment of any distributions on the Common Units, which is generally expected to be February 10, May 10, August 10 and November 10, or, if any such date is not a Business Day, the next succeeding Business Day (each, a “Class B Convertible Preferred Unit Distribution Payment Date”).
(B) Any distribution payable on the Class B Convertible Preferred Units for any partial Quarter (other than the initial distribution payable on the Class B Convertible Preferred Units for the period from May 22, 2012 through June 30, 2012) shall equal the product of the Minimum Quarterly Class B Convertible Preferred Unit Distribution Rate multiplied by a fraction, the numerator of which is the number of days in such period and the denominator of which is the total number of days in the Quarter for which the Class B Convertible Preferred Units are entitled to a partial distribution).
(C) No distribution on the Class B Convertible Preferred Units shall be authorized by the Board of Directors or declared or paid or set apart for payment by the Partnership at such time as the terms and provisions of any agreement of the Partnership, including any agreement relating to its indebtedness, prohibits such authorization, declaration, payment or setting apart for payment or provides that such authorization, declaration, payment or setting apart for payment would constitute a breach thereof, or a default thereunder, or if such authorization, declaration, payment or setting apart for payment shall be restricted or prohibited by law.
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(D) Notwithstanding the foregoing, distributions with respect to the Class B Convertible Preferred Units shall accumulate as of the Class B Convertible Preferred Unit Distribution Payment Date on which they first become payable whether or not any of the foregoing restrictions in (C) above exist, whether or not there is sufficient Available Cash for the payment thereof and whether or not such distributions are authorized. A Cumulative Class B Convertible Preferred Unit Arrearage shall not bear interest and holders of the Class B Convertible Preferred Units shall not be entitled to any distributions, whether payable in cash, property or Partnership Interests, in excess of the then Cumulative Class B Convertible Preferred Unit Arrearage plus the Minimum Quarterly Class B Convertible Preferred Unit Distribution Rate for such Quarter.
(E) Notwithstanding anything in this Section 5.10(b)(ii) to the contrary, with respect to Class B Convertible Preferred Units that are converted into Common Units, the holder thereof shall not be entitled to a Class B Convertible Preferred Unit distribution and a Common Unit distribution with respect to the same period, but shall be entitled only to the distribution to be paid based upon the class of Units held as of the close of business on the Record Date for the distribution in respect of such period; provided, however, that the holder of a converted Class B Convertible Preferred Unit shall remain entitled to receive any accrued but unpaid distributions due with respect to such Unit on or as of the prior Class B Convertible Preferred Unit Distribution Payment Date; and provided, further, that if the Partnership exercises the Partnership Mandatory Conversion Right to convert the Class B Convertible Preferred Units pursuant to Section 5.10(b)(ix)(C), then the holders’ rights with respect to the distribution for the Quarter in which the Partnership Mandatory Conversion Notice is received is as set forth in Section 5.10(b)(ix)(F).
(iii) Issuance of Class B Convertible Preferred Units.
On the Class B Convertible Preferred Unit Issue Date, the Class B Convertible Preferred Units shall be issued by the Partnership pursuant to the authorization of the Board of Directors.
(iv) Liquidation Value.
(A) In the event of any liquidation, dissolution or winding up of the Partnership or sale or other disposition of substantially all of the assets of the Partnership, either voluntary or involuntary, the holders of the Class B Convertible Preferred Units shall be entitled to receive, out of the assets of the Partnership available for distribution to Partners after satisfying claims of creditors and making distributions and payments on any Senior Interests, prior and in preference to any distribution of assets of the Partnership to the holders of Common Units or any other class or series of Partnership Interests ranking junior to the Class B Convertible Preferred Units, the sum of (x) the Class B Per Unit Purchase Price, (y) an amount equal to any Cumulative Class B Convertible Preferred Unit Arrearage and (z) the product of (A) the Minimum Quarterly Class
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B Convertible Preferred Distribution Rate for a full Quarter and (B) the quotient of (i) the number of days that the Class B Convertible Preferred Units are Outstanding following the close of the last complete Quarter and (ii) 90 (such sum, the “Class B Convertible Preferred Unit Liquidation Value”).
(B) If upon any such voluntary or involuntary liquidation, dissolution or winding up of the Partnership, the assets of the Partnership legally available for distribution to its Partners are insufficient to pay the Class B Convertible Preferred Unit Liquidation Value, and the corresponding amounts payable on all other Partnership Interests ranking pari passu with the Class B Convertible Preferred Units as to the distribution of assets upon the liquidation, dissolution or winding up of the Partnership, then the holders of the Class B Convertible Preferred Units and all other holders of such pari passu Partnership Interests shall share ratably in any such distribution of assets in proportion to the aggregate amount of the liquidating distributions to which they would otherwise be respectively entitled.
(C) After payment of the full amount of the Class B Convertible Preferred Unit Liquidation Value, the holders of the Class B Convertible Preferred Units shall have no right or claim to any of the remaining assets of the Partnership.
(D) None of a consolidation or merger of the Partnership with or into another entity, a merger of another entity with or into the Partnership, a statutory unit exchange by the Partnership or a sale, lease or conveyance of all or substantially all of the Partnership’s property or business shall be considered a liquidation, dissolution or winding up of the affairs of the Partnership.
(v) Voting Rights.
(A) The holders of the Class B Convertible Preferred Units shall have voting rights that are identical to the voting rights of the Common Units on an as converted basis and will vote with the Common Units as a single class on all matters with respect to which each Common Unit is entitled to vote; provided, however, that except as provided in Section 5.10(b)(v)(C) below, holders of Class B Convertible Preferred Units shall have no right to vote for, elect or appoint any Director, or to nominate any individual to stand for election or appointment as a Director. Subject to the exception in the preceding sentence, each reference in this Agreement to a vote of holders of Common Units shall be deemed to be a reference to the holders of Common Units and Class B Convertible Preferred Units on an as converted basis.
(B) Notwithstanding any other provision of this Agreement, in addition to all other requirements of the Marshall Islands Act, and all other voting rights granted under this Agreement, the affirmative vote or written consent of the holders of at least 75% of the outstanding Class B Convertible Preferred Units, voting separately as a class based upon one vote per Class B Convertible
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Preferred Unit, shall be necessary on any matter that adversely affects any of the rights, preferences and privileges of the Class B Convertible Preferred Units (or adversely amends or modifies any of the terms of the Class B Convertible Preferred Units). Notwithstanding the above, to the extent Capital Maritime & Trading Corp. or any of its Affiliates holds any Class B Convertible Preferred Units at the time of any such vote, its Class B Convertible Preferred Units shall not be included for purposes of such consent or vote. The General Partner shall be able to amend this Section 5.10(b) without the consent of the holders of the Class B Convertible Preferred Units so long as the amendment does not adversely affect the holders of the Class B Convertible Preferred Units disproportionately in relation to holders of Common Units. Without limiting the generality of the preceding sentence, such adverse effect, amendment or modification includes any action that would:
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a.
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reduce the Minimum Quarterly Class B Convertible Preferred Unit Distribution Rate, change the form of payment of distributions, defer the date from which distributions on the Class B Convertible Preferred Units will accrue and accumulate, cancel accrued, accumulated and unpaid distributions on the Class B Convertible Preferred Units, or adversely change the relative seniority rights of the holders of Class B Convertible Preferred Units as to the payment of distributions in relation to the holders of any other Units or amend this Section 5.10(b)(v);
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b.
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reduce the amount payable or change the form of payment to the holders of the Class B Convertible Preferred Units upon a Change of Control or the voluntary or involuntary liquidation, dissolution or winding up of the Partnership, or adversely change the relative seniority of the liquidation preferences of the holders of the Class B Convertible Preferred Units to the rights upon liquidation of the holders of any other Units;
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c.
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make the Class B Convertible Preferred Units redeemable at the option of the Partnership before May 22, 2017, between May 22, 2017 and May 22, 2019 for less than the redemption price of 103% of the Class B Convertible Preferred Unit Liquidation Value or after May 22, 2019 for less than the Class B Convertible Preferred Unit Liquidation Value; or
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d.
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make the Class B Convertible Preferred Units convertible mandatorily before May 22, 2015 or adversely modify the conditions that must have occurred for such conversion option to be exercised; or
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e.
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amend any of the provisions set forth in Section 5.10(b)(v)(D) hereof related to the creation of any Senior Interests.
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(C) If there is a Cumulative Class B Convertible Preferred Unit Arrearage resulting from failure to pay the Minimum Quarterly Class B Convertible Preferred Unit Distribution Rate for six or more Quarters (a “Voting Rights Triggering Event”), the holders of the Class B Convertible Preferred Units shall have the right to appoint a director to the Board of Directors by the affirmative vote of the holders of a majority of Class B Convertible Preferred Units (the “Class B Convertible Preferred Unit Director”), in each case in accordance with Article VII. To the extent Capital Maritime & Trading Corp. or any of its Affiliates holds any Class B Convertible Preferred Units at the time of any such vote, its Class B Convertible Preferred Units shall not be included for purposes of such consent or vote. Additionally, if such Voting Rights Triggering Event exists during the time on and after the Class B Convertible Preferred Units have been outstanding for seven (7) years, then the holders of the Class B Convertible Preferred Units shall have the right to remove and replace each of the Appointed Directors in addition to the director designated as a result of the Voting Rights Triggering Event; provided, that to the extent the appointment of any such Appointed Director by the holders of the Class B Convertible Preferred Units would jeopardize the Partnership’s tax exemption under Section 883 of the Code (or any successor or similar provision of the Code) as determined by the Board of Directors in good faith, any such position shall be filled by the Board of Directors in good faith. The voting rights arising as a result of a Voting Rights Triggering Event will continue until such time as the Partnership pays, or declares and sets apart for payment, the Cumulative Class B Convertible Preferred Unit Arrearage, at which time the right to have and maintain such Class B Convertible Preferred Unit Director shall cease and the General Partner may remove such Class B Convertible Preferred Unit Director in accordance with the terms of Article VII. (and the right to appoint the Appointed Directors shall revert to the General Partner). Notwithstanding the foregoing, neither the General Partner, the Board of Directors, nor any Limited Partner will be required to take any action under this Section 5.10(b)(v) to the extent such action would constitute a breach of a fiduciary duty or obligation to the Partnership under the Marshall Islands Act. Except for the rights set forth in this Section 5.10(b)(v), holders of Class B Convertible Preferred Units shall have no right to vote for, elect or appoint any Director, or to nominate any individual to stand for election or appointment as a Director.
(D) The Partnership shall not authorize, create or issue any Senior Interests (or amend the provisions of any existing class of Partnership Securities to make such class of Partnership Securities a class of Senior Interests) without the affirmative vote or written consent of the holders of at least 75% of the outstanding Class B Convertible Preferred Units, voting separately as a class based upon one vote per Class B Convertible Preferred Unit.
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(vi) Non-Wholly Owned Subsidiaries. The Partnership shall not transfer or permit the transfer of any Partnership assets owned as of May 22, 2012 to any Subsidiaries that are not wholly owned (other than directors’ qualifying shares) at such time and that do not continue to be so wholly owned nor authorize the formation of any Subsidiary or permit any such Subsidiary to exist that is not so wholly owned unless (i) such Subsidiary is buying, building or otherwise acquiring new assets, (ii) the capital structure of such Subsidiary consists at all times of only secured debt, unsecured debt incurred by the Subsidiary in conformity with Section 5.10(b)(vii) and a single class of equity, (iii) the transfer (and any series of related transfers) does not exceed $25 million or (iv) the transfer is approved by the affirmative vote or written consent of the holders of at least 75% of the outstanding Class B Convertible Preferred Units, voting separately as a class based upon one vote per Class B Convertible Preferred Unit.
(vii) Issuance of Unsecured Debt. For as long as any Class B Convertible Preferred Unit remains outstanding, neither the Partnership nor any Subsidiary may issue unsecured Financial Indebtedness unless, following such issuance of unsecured Financial Indebtedness, the ratio of Total Indebtedness less cash and cash equivalents to the aggregate Market Value of all the Fleet Vessels is less than or equal to 0.75:1; provided, that the conditions set forth in this Section 5.10(b)(vii) may be waived by the affirmative vote or written consent of the holders of a majority of the outstanding Class B Convertible Preferred Units, voting separately as a class, based upon one vote per Class B Convertible Preferred Unit.
(viii) Certificates.
(A) The Class B Convertible Preferred Units shall be evidenced by Certificates in a form substantially similar to Exhibit B hereto and, subject to the satisfaction of any applicable legal, regulatory and contractual requirements, may be assigned or transferred in a manner identical to the assignment and transfer of other Units; unless and until the General Partner determines to assign the responsibility to another Person, the General Partner will act as the registrar and transfer agent for the Class B Convertible Preferred Units. The Certificates evidencing Class B Convertible Preferred Units shall be separately identified and shall not bear the same CUSIP number as the Certificates evidencing Common Units.
(B) The Certificate(s) representing the Class B Convertible Preferred Units may be imprinted with a legend in substantially the following form:
“THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
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“SECURITIES ACT”) AND ARE SUBJECT TO THE TERMS OF THE SECOND AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT OF CAPITAL PRODUCT PARTNERS L.P., AS AMENDED. THE HOLDER OF THIS SECURITY ACKNOWLEDGES FOR THE BENEFIT OF CAPITAL PRODUCT PARTNERS L.P. THAT THIS SECURITY MAY NOT BE SOLD, OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IF SUCH TRANSFER WOULD (A) VIOLATE THE THEN APPLICABLE SECURITIES LAWS OR RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER GOVERNMENTAL AUTHORITY WITH JURISDICTION OVER SUCH TRANSFER OR (B) CAUSE CAPITAL PRODUCT PARTNERS L.P. TO BE TREATED AS AN ASSOCIATION TAXABLE AS A CORPORATION OR OTHERWISE TO BE TAXED AS AN ENTITY FOR FEDERAL INCOME TAX PURPOSES (TO THE EXTENT NOT ALREADY SO TREATED OR TAXED). CAPITAL GP L.L.C., THE GENERAL PARTNER OF CAPITAL PRODUCT PARTNERS L.P., MAY IMPOSE ADDITIONAL RESTRICTIONS ON THE TRANSFER OF THIS SECURITY IF IT RECEIVES AN OPINION OF COUNSEL THAT SUCH RESTRICTIONS ARE NECESSARY TO AVOID A SIGNIFICANT RISK OF CAPITAL PRODUCT PARTNERS L.P. BECOMING TAXABLE AS A CORPORATION OR OTHERWISE BECOMING TAXABLE AS AN ENTITY FOR FEDERAL INCOME TAX PURPOSES (TO THE EXTENT NOT ALREADY SO TREATED OR TAXED). THE RESTRICTIONS SET FORTH ABOVE SHALL NOT PRECLUDE THE SETTLEMENT OF ANY TRANSACTIONS INVOLVING THIS SECURITY ENTERED INTO THROUGH THE FACILITIES OF ANY NATIONAL SECURITIES EXCHANGE ON WHICH THIS SECURITY IS LISTED OR ADMITTED TO TRADING.”
(ix) Conversion Rights.
(A) Notwithstanding any other provision of this Agreement to the contrary, holders of the Class B Convertible Preferred Units shall have the right to convert all or a portion of such Class B Convertible Preferred Units at any time and from time to time into Common Units at an initial conversion rate of one Common Unit per one Class B Convertible Preferred Unit (the “Conversion Ratio”), equivalent to an initial conversion price equal to the Class B Per Unit Purchase Price per Common Unit (the “Conversion Price”), at any time prior to the close of business on the business day immediately preceding conversion (the “Holder Conversion Right”). The Conversion Ratio (and the Conversion Price) shall be adjusted upon the occurrence of certain events as set forth in Section 5.10(b)(xiii).
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(B) In order to exercise the Holder Conversion Right, the holder of any Class B Convertible Preferred Unit to be converted shall surrender the Certificate representing such Class B Convertible Preferred Unit, duly endorsed or assigned to the Partnership or in blank, at any office or agency of the Partnership maintained for that purpose (which may be the Transfer Agent), accompanied by a duly signed notice (a “Holder Conversion Notice”) substantially in the form provided in Exhibit C hereto, stating that the holder of Class B Convertible Preferred Units elects to convert the Class B Convertible Preferred Units represented by such Certificate, or, if less than the entire number of Class B Convertible Preferred Units represented by such Certificate are to be converted, the number of such Class B Convertible Preferred Units to be converted. Any such delivery of Certificates and the Holder Conversion Notice shall be irrevocable. Only whole numbers of Class B Convertible Preferred Units may be converted.
(C) Commencing on May 22, 2015 (i) in the event the 30-day VWAP and the daily VWAP of the Common Units on the National Securities Exchange on which the Common Units are listed or admitted to trading exceeds 130% of the then applicable Conversion Price for at least 20 Trading Days out of the 30 consecutive Trading Day period used to calculate the 30-day VWAP (the “Partnership Mandatory Conversion Event”), the Partnership (acting pursuant to direction and approval of the Conflicts Committee (following consultation with the full Board of Directors)), shall have the right to convert the Class B Convertible Preferred Units then outstanding in whole or in part into Common Units at the then-applicable Conversion Ratio (the “Partnership Mandatory Conversion Right”).
(D) Any Common Units delivered as a result of conversion pursuant to this Section 5.10(b)(ix) shall be validly issued, fully paid and non-assessable, free and clear of any liens, claims, rights or encumbrances other than those arising under the Marshall Islands Act, applicable securities laws or this Agreement, or created by the holders thereof. Immediately following any conversion, the rights of the holders of converted Class B Convertible Preferred Units, including any accrual of distributions, shall cease and the Persons entitled to receive the Common Units upon the conversion of Class B Convertible Preferred Units shall be treated for all purposes as having become the owners of such Common Units; provided, however, that such holder shall be entitled to receive any accrued but unpaid distributions due with respect to such Unit on or as of the prior Class B Convertible Preferred Unit Distribution Payment Date.
(E) In order to exercise the Partnership Mandatory Conversion Right, the Partnership shall give written notice (a “Partnership Mandatory Conversion Notice”) to each holder of Class B Convertible Preferred Units substantially in the form of Exhibit D attached hereto stating that the Partnership Mandatory Conversion Event has occurred, and the Partnership elects to force conversion of such Class B Convertible Preferred Units pursuant to Section 5.10(b)(ix)(C). Such notice shall state therein (i) the number of Class B
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Convertible Preferred Units to be converted and (ii) the Partnership’s computation of the number of Common Units to be received by the holder in connection with the Class B Convertible Preferred Unit Conversion Date. In addition, if a holder does not provide written notice to the Partnership of the name or names in which such holder wishes the Certificate(s) for Common Units to be issued within three Trading Days after the Partnership Mandatory Conversion Notice is given, then the Certificate(s) for Common Units shall be issued to the Record Holder of such Class B Convertible Preferred Units.
(F) If the Class B Convertible Preferred Unit Conversion Date with respect to a Class B Convertible Preferred Unit occurs during the period from the close of business on any Record Date next preceding any Class B Convertible Preferred Unit Distribution Payment Date to the opening of business on such distribution date, the distribution payable in respect of a Class B Convertible Preferred Unit on such Class B Convertible Preferred Unit Distribution Payment Date shall be paid to the holder of such Class B Convertible Preferred Unit on the applicable Record Date, notwithstanding that the Class B Convertible Preferred Unit Conversion Date with respect to such Class B Convertible Preferred Unit has occurred. If the Class B Convertible Preferred Unit Conversion Date with respect to a Class B Convertible Preferred Unit occurs prior to a Record Date for distributions on the Class B Convertible Preferred Units, such Class B Convertible Preferred Unit will, as provided below, have been deemed transferred to the Partnership and cancelled on such Class B Convertible Preferred Unit Conversion Date, and therefore no distribution in respect of a Class B Convertible Preferred Unit will be made on the cancelled Class B Convertible Preferred Unit on the related distribution date, whether or not the Partnership has yet delivered to the holder of such Class B Convertible Preferred Units the Certificates representing Common Units deliverable upon the conversion; provided, that for the avoidance of doubt, holders of Class B Convertible Preferred Units converted into Common Units pursuant to the Partnership Mandatory Conversion Right shall be entitled to receive any distribution on the converted Common Units for the Quarter in which the Partnership Mandatory Conversion Notice is received and any accrued but unpaid distributions due with respect to such Units on or as of the prior Class B Convertible Preferred Unit Distribution Payment Date.
(G) Any Class B Convertible Preferred Units being converted shall be deemed to have been converted on the Class B Convertible Preferred Unit Conversion Date, and at such time the rights of the holder of such Class B Convertible Preferred Units as holder of Class B Convertible Preferred Units shall cease, including any rights under this Agreement, except such Person shall continue to be owed any accrued but unpaid distributions due with respect to such Class B Convertible Preferred Units on or as of the prior Class B Convertible Preferred Unit Distribution Payment Date, shall continue to be a Limited Partner and shall have the right to receive Common Units from the Partnership upon conversion for such Class B Convertible Preferred Units in accordance with this Section 5.10(b)(ix), and such Class B Convertible Preferred Units shall, upon the
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Class B Convertible Preferred Unit Conversion Date, be deemed to be transferred to, and cancelled by, the Partnership. Within three Trading Days after the Class B Convertible Preferred Unit Conversion Date, the Partnership shall deliver to the Transfer Agent, for delivery to the holder of Class B Convertible Preferred Units being converted, a Certificate or Certificates for the number of Common Units deliverable upon conversion, together with payment in lieu of any fraction of a Common Unit, if any, as provided in Section 5.10(b)(ix)(I) below. Upon surrender of Certificates representing the converted Class B Convertible Preferred Units, duly endorsed and accompanied by a Holder Conversion Notice, at any office or agency of the Partnership maintained for that purpose (which may be the Transfer Agent), such Certificate(s) for Common Units shall be registered in the name of the holder of the Class B Convertible Preferred Units surrendered for conversion, unless such holder specifies a later date within three Trading Days after the Class B Convertible Preferred Unit Conversion Date. Holders of Class B Convertible Preferred Units, in their capacity as such, have no rights in respect of Common Units unless and until the Class B Convertible Preferred Units are converted and Common Units registered in the name of the holder have been issued. If a Record Date for distributions in respect of Common Units occurs between the Class B Convertible Preferred Unit Conversion Date and the date on which Common Units issued upon conversion of Class B Convertible Preferred Units are registered in the name of the holder of such converted Class B Convertible Preferred Units, the Partnership shall (i) with respect to such distribution to be made with respect to the Common Unit deliverable by the Partnership with respect to such conversion, forward such distribution with respect to such Common Units to the Person surrendering such Class B Convertible Preferred Units for conversion at the address reflected on the records of the Transfer Agent, or as shown on the Holder Conversion Notice, and (ii) with respect to a Record Date for voting or consent of Common Units, provide the holder of Class B Convertible Preferred Units surrendering such Class B Convertible Preferred Units for conversion a proxy enabling such holder of Class B Convertible Preferred Units to vote or consent with respect to the vote or consent of such Common Units for the matters related to such Record Date.
(H) The Partnership shall pay any and all issue, documentary, stamp and other taxes, excluding any income, capital gain, franchise or similar taxes, that may be payable in respect of any issue or delivery of Common Units upon conversion of, or payment of distributions on, Class B Convertible Preferred Units pursuant hereto. However, the holder of any Class B Convertible Preferred Units shall pay any tax that is due because the Common Units issuable upon conversion thereof or distribution payment thereon are issued in a name other than such holder’s name.
(I) No fractional Common Unit shall be delivered upon conversion of any Class B Convertible Preferred Units. If more than one Certificate representing Class B Convertible Preferred Units shall be surrendered for conversion with the same Class B Convertible Preferred Unit Conversion Date by the same holder of Class B Convertible Preferred Units, the number of full
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Common Units which shall be deliverable upon conversion thereof shall be computed on the basis of the aggregate number of whole Class B Convertible Preferred Units so surrendered. Instead of any fractional Common Unit which would otherwise be issuable upon conversion of any Class B Convertible Preferred Units, the Partnership shall calculate and pay a cash adjustment in respect of such fraction (calculated with respect to a Common Unit to seven decimal places and rounded down to six decimal places) in an amount equal to the same fraction of the Closing Price on the Class B Convertible Preferred Unit Conversion Date (or, if such day is not a Trading Day, on the Trading Day immediately preceding such day), or at the Partnership’s option, the Partnership may round the number of Common Units delivered up to the next higher whole Common Unit.
(x) Limitations on Transfer. All Class B Convertible Preferred Units and Common Units that have resulted from the conversion of a Class B Convertible Preferred Unit pursuant to Section 5.10(b)(ix) will be subject to restrictions and limitations on transfer set forth in Section 4.08 of the Class B Convertible Preferred Unit Subscription Agreement.
(xi) Optional Redemption.
(A) The Class B Convertible Preferred Units may not be redeemed at the option of the Partnership prior to May 22, 2017. The Partnership may redeem the Class B Convertible Preferred Units, in whole or in part, at the option of the Partnership, (1) on or after May 22, 2017 but before May 22, 2019 at the redemption price of 103% of the Class B Convertible Preferred Unit Liquidation Value per unit and (2) on or after May 22, 2019 at the Class B Convertible Preferred Unit Liquidation Value per unit as of the Redemption Date.
(B) On and after any date fixed for redemption (the “Redemption Date”), provided that the Partnership has made available at the office of the Transfer Agent a sufficient amount of funds to effect the redemption, distributions will cease to accrue on the Class B Convertible Preferred Units called for redemption, such units shall no longer be deemed to be outstanding and all rights of the holders of such units as holders of Class B Convertible Preferred Units shall cease except the right to receive the cash deliverable upon such redemption, without interest from the Redemption Date.
(C) In the event of a redemption of only a portion of the then outstanding Class B Convertible Preferred Units, the Partnership shall effect such redemption on a pro rata basis.
(D) With respect to a redemption pursuant hereto, the Partnership will send a written notice of redemption by first class mail to each holder of record of Class B Convertible Preferred Units, not fewer than 15 days nor more than 60 days prior to the Redemption Date at its registered address (the “Redemption Notice”); provided, however, that no failure to give such notice nor
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any deficiency therein shall affect the validity of the procedure for the redemption of any Class B Convertible Preferred Units to be redeemed except as to the holder or holders to whom the Partnership has failed to give said notice or except as to the holder or holders whose notice was defective. The Redemption Notice shall state:
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a.
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the redemption price;
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b.
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whether all or less than all the outstanding units of the Class B Convertible Preferred Units are to be redeemed and the total number of units of the Class B Convertible Preferred Units being redeemed;
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c.
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the Redemption Date;
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d.
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that the holder is to surrender to the Partnership, in the manner, at the place or places and at the price designated, his Certificate or Certificates representing the Class B Convertible Preferred Units to be redeemed; and
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e.
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that distributions on the Class B Convertible Preferred Units to be redeemed shall cease to accumulate on such Redemption Date unless the Company defaults in the payment of the redemption price.
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(E) Each holder of Class B Convertible Preferred Units shall surrender the Certificate or Certificates representing such units of Class B Convertible Preferred Units to the Partnership in the manner and at the place designated in the Redemption Notice, and on the Redemption Date, the full redemption price for such units shall be payable in cash to the person whose name appears on such Certificate or Certificates as the owner thereof, and each surrendered Certificate shall be canceled and retired. In the event that less than all of the units represented by any such Certificate are redeemed, a new Certificate shall be issued representing the unredeemed units.
(F) In the event the Partnership defaults in the payment of the redemption price, the Class B Convertible Preferred Units that were called for redemption shall remain outstanding and continue to accumulate the Minimum Quarterly Class B Convertible Preferred Unit Distribution Rate.
(xii) Change of Control; Partnership Restructure.
(A) Mixed Consideration. Subject to subsection (B) below, prior to the consummation of any Change of Control or Partnership Restructure in which the holders of Common Units are to receive securities or a combination of securities, cash or other assets (a “Partnership Event”), the Partnership shall make appropriate provision to ensure that the holders of Class B Convertible Preferred Units will have the right to receive in such Partnership Event, for each Class B
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Convertible Preferred Unit, consideration, in the form and ratios set forth below, (the “Preferred Consideration”) having an aggregate Fair Market Value equal to the greater of (x) the Class B Convertible Preferred Unit Liquidation Value and (y) the Fair Market Value of the consideration that would be received if the holder converted its Class B Convertible Preferred Units to Common Units immediately prior to such Partnership Event (valuing any non-cash consideration to be received by the holders of the Common Units at its Fair Market Value) (for example, for purposes of this calculation, a transaction value of $500 million with $300 million of cash consideration and $200 million of consideration in the form of securities will be considered a $500 million transaction and the portion of such aggregate consideration equal to the aggregate Preferred Consideration shall be allocated to the holders of the Class B Convertible Preferred Units prior to any allocation to the holders of Common Units). If the consideration is a combination of cash (“Cash Consideration”) and securities or other assets (“Non-Cash Consideration”), the ratio between the Fair Market Value of the Cash Consideration to the Fair Market Value of the Non-Cash consideration to be received by the holders of Common Units shall be equivalent to the ratio of the Fair Market Value of the Cash Consideration to the Fair Market Value of the Non-Cash Consideration to be received by the holders of Class B Convertible Preferred Units (for example, if the holders of Common Units are to receive consideration having an aggregate Fair Market Value of $9.00 and the holders of Class B Convertible Preferred Units are to receive consideration having an aggregate Fair Market Value of $12.00 and holders of Common Units are to receive $3.00 in cash, the holders of the Class B Convertible Preferred Units shall receive $4.00 in cash). If all or a portion of the Non-Cash Consideration to be received by the holders of Common Units is in the form of an equity security issued by the Person surviving or resulting from such Partnership Event, the holders of the Class B Convertible Preferred Units shall receive a proportionate amount of its total consideration in a preferred security with a liquidation value equaling its Non-Cash Consideration issued by the Person surviving or resulting from such Partnership Event and containing provisions substantially equivalent to the provisions set forth in this Section 5.10 without abridgement, including substantially equivalent powers, preferences, rights to distributions, rights to accumulation and compounding upon failure to pay distributions and relative participating or other rights and the qualifications, limitations or restrictions thereon, that the Class B Convertible Preferred Unit had immediately prior to such Partnership Event (the “Survivor Preferred Security”). The Fair Market Value of any Non-Cash Consideration shall be determined as of the date of the transaction or event giving rise to the Partnership Event. For any holder of Class B Convertible Preferred Units that receives Survivor Preferred Securities, the Conversion Price in effect at the time of the effective date of such Partnership Event shall be proportionately adjusted so that the conversion of a unit of a Survivor Preferred Security after such time shall entitle the holder to the number of securities and/or amount of other assets that such holder would have been entitled to receive immediately following such Partnership Event if such holder’s Class B Convertible Preferred Units had been converted into Common Units
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immediately prior to such Partnership Event. Subsequent adjustments to the conversion price of the Survivor Preferred Security shall be made successively whenever any event described in Section 5.10(b)(xiii) or this Section 5.10(b)(xii) shall occur. Notwithstanding the foregoing, the Partnership may consummate a Partnership Event without making appropriate provision to ensure that the holders of Class B Convertible Preferred Units receive a Survivor Preferred Security and/or cash consideration in such Partnership Event with the prior affirmative vote or written consent of the holders of at least 75% of the outstanding Class B Convertible Preferred Units, voting separately as a class, based upon one vote per Class B Convertible Preferred Unit; provided, however, that to the extent Capital Maritime & Trading Corp. or any of its Affiliates holds any Class B Convertible Preferred Units at the time of any such vote, its Class B Convertible Preferred Units shall not be included for purposes of such consent or vote. Upon the issuance of Survivor Preferred Securities to the applicable Unitholder pursuant to this Section 5.10(b)(xii), all rights under the exchanged Class B Convertible Preferred Unit shall cease, and such Unitholder shall be treated for all purposes as the Record Holder of such Survivor Preferred Securities.
(B) Cash Consideration. Prior to the consummation of any Change of Control or Partnership Restructure in which the holders of Common Units are to receive cash consideration exclusively as a result thereof (a “Cash Event”), the Partnership shall make appropriate provision to ensure that the parties to such Cash Event enter into documentation that provides that each outstanding Class B Convertible Preferred Unit shall receive the greater of the Class B Convertible Preferred Unit Liquidation Value and the cash consideration to be received if the holder converted its Class B Convertible Preferred Units to Common Units immediately prior to such Cash Event. Upon the payment of cash consideration to the applicable Unitholder pursuant to this Section 5.10(b)(xii), all rights under the exchanged Class B Convertible Preferred Unit shall cease, and each holder of such Class B Convertible Preferred Units shall cease to have any rights with respect to the units except for the right to receive such cash consideration.
(xiii) Distributions, Combinations and Subdivisions; Other Adjustments.
The Conversion Ratio (and the Conversion Price) shall be subject to adjustment from time to time hereafter solely for purposes of applying Section 5.10(b)(ix)(A), as follows; it being intended that such adjustments to the Conversion Ratio (and the Conversion Price) are to be made in order to avoid unintended dilution or anti-dilution as a result of certain transactions in which Common Units are issued, redeemed or exchanged without a corresponding issuance, redemption or exchange of Class B Convertible Preferred Units:
(A) In case the Partnership shall, at any time or from time to time prior to conversion of all Class B Convertible Preferred Units, (1) make a distribution on the outstanding Common Units, in Common Units, (2) split or subdivide the outstanding Common Units into a larger number of Common Units, (3) effect a reverse unit split or otherwise combine the outstanding Common Units
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into a smaller number of Common Units, or (4) issue by reclassification of the Common Units into any units of Partnership Interests, then, and in each such case, the Conversion Ratio (and the Conversion Price) in effect immediately prior to such event or the Record Date therefor, whichever is earlier, shall be adjusted so that the holder of any Class B Convertible Preferred Units thereafter surrendered for conversion shall be entitled to receive the Common Units that such holder would have been entitled to receive after the happening of any of the events described above, had such Class B Convertible Preferred Units been converted immediately prior to the happening of such event or the Record Date therefor, whichever is earlier. An adjustment made pursuant to this Section 5.10(b)(xiii)(A) shall become effective (1) in the case of any such distribution, immediately after the close of business on the Record Date for the determination of holders of Common Units entitled to receive such distribution, or (2) in the case of any such subdivision, reclassification, reverse unit split or combination, at the close of business on the day upon which such action becomes effective.
(B) In case the Partnership shall, at any time or from time to time prior to conversion of all Class B Convertible Preferred Units, declare, order, pay or make a distribution (including any distribution of units or other securities or property or rights or warrants to subscribe for securities of the Partnership entitling holders thereof to subscribe for or purchase such securities at a price per unit less than the fair market value of such securities, by way of distribution or spin-off) on its Common Units, other than regular and customary quarterly distributions by the Partnership of Available Cash, then, and in each such case, the Conversion Ratio (and the Conversion Price) shall be adjusted so that the holder of each Class B Convertible Preferred Unit shall be entitled to receive, upon the conversion thereof, the number of Common Units determined by multiplying (1) the applicable Conversion Ratio on the day immediately prior to the Record Date fixed for the determination of Common Unit holders entitled to receive such distribution by (2) a fraction, the numerator of which shall be the 30-day VWAP per Common Unit on such Record Date, and the denominator of which shall be such 30-day VWAP per Common Unit on such Record Date less the fair market value (as determined in good faith by resolution of the Board of Directors) of such distribution allocable to one Common Unit. An adjustment made pursuant to this Section 5.10(b)(xiii)(B) shall be made upon the opening of business on the next Business Day following the date on which any such distribution is made and shall be effective retroactively immediately after the close of business on the Record Date fixed for the determination of Common Unit holders entitled to receive such distribution.
(C) In case the Partnership shall, at any time or from time to time prior to conversion of all Class B Convertible Preferred Units, make a tender offer or exchange offer for Common Units at a price per Common Unit greater than the 30-day VWAP per Common Unit as of the date of such repurchase (the number of Common Units so repurchased, multiplied by the amount by which such price per Common Unit exceeds the 30-day VWAP per Common Unit as of such date, being referred to in this Section 5.10(b)(xiii)(C) as the “Excess
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Amount”), then, and in each such case, the Conversion Ratio (and the Conversion Price) shall be adjusted, in accordance with the applicable provisions of Sections 5.10(b)(xiii)(A) and 5.10(b)(xiii)(B) above, as if, in lieu of such repurchase, the Partnership had made a distribution of property having a fair market value (as determined in good faith by resolution of the Board of Directors) equal to the Excess Amount, with such distribution made to holders of Common Units (including holders of Common Units so repurchased) on the date of such repurchase.
(D) For purposes of this Section 5.10(b)(xiii), the number of Common Units at any time outstanding shall not include any Common Units then owned or held by or for the account of the Partnership.
(E) In the event the number of Common Units to which a holder is entitled upon conversion of its Class B Convertible Preferred Units is not equal to a whole number, the holder shall be paid (1) that number of Common Units which equals the nearest whole number less than such amount plus (2) an amount of cash which the General Partner determines, in its reasonable discretion, to represent the fair value of the remaining fractional Common Unit which would otherwise be payable to such holder.
(F) The General Partner shall provide notice to holders of the Class B Convertible Preferred Units following the occurrence of any transaction or event described in this Section 5.10(b)(xiii) that results in an adjustment to the Conversion Ratio (and the Conversion Price) as soon as reasonably practicable following such transaction or event.
(xiv) Right of First Offer in Parity Interest Issuances.
(A) Grant of Right of First Offer Each holder of Class B Convertible Preferred Units shall have a preemptive right to purchase such holder's Pro Rata Portion of any issuance of Parity Interests that the Partnership may, from time to time, propose to offer and sell.
(B) Notice of Right. In the event the Partnership proposes to undertake an issuance of Parity Interests, it shall give each holder of Class B Convertible Preferred Units written notice of its intention, describing the type of Parity Interests and the price and terms upon which the Partnership proposes to issue the same. Each holder shall have ten (10) days from the date of delivery of any such notice to agree to purchase up to 100% of such Parity Interests for the price and upon the terms specified in the notice, by delivering written notice to the Partnership and stating therein the quantity of Parity Interests to be purchased. If the holders in the aggregate desire to purchase more than 100% of the Parity Interests being issued, each such holder's right to purchase the Parity Interests shall be reduced (pro rata based on the percentage of the Parity Interests for which such holder has exercised its right to purchase hereunder compared to all other holders of Class B Convertible Preferred Units who have exercised their right
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hereunder, but not below such Purchaser’s Pro Rata Interest so that such holders purchase no more than 100% of the Parity Interests being offered and sold.
(C) Lapse and Reinstatement of Right. The Partnership shall have ninety (90) days following the ten (10) day period described in Section 5.10(b)(xiii)(B) to sell or enter into an agreement (pursuant to which the sale of Parity Securities covered thereby shall be closed, if at all, within thirty (30) days from the date of said agreement) to sell the Parity Securities with respect to which the holders' preemptive right was not exercised, at a price and upon terms no more favorable to the purchasers of such interests than specified in the Partnership's notice relating thereto. In the event the Partnership has not sold the Parity Interests or entered into an agreement to sell the Parity Interests within said ninety (90) day period (or sold and issued Parity Interests in accordance with the foregoing within thirty (30) days from the date of said agreement), the Partnership shall not thereafter issue or sell any Parity Interests without first offering such securities to the holders of the Class B Convertible Preferred Units in the manner provided above.
(D) Termination of Right of First Offer. The preemptive right granted in this Section 5.10(b)(xiii) shall expire upon the date on which all Class B Convertible Preferred Units have been redeemed or otherwise converted and are no longer outstanding.
(xv) No Circumvention. The Partnership shall not take any action to amend, modify, supplement or otherwise alter the rights and privileges of the holders of Class B Convertible Preferred Units set forth in this Section 5.10 through a merger, consolidation, exchange or otherwise.
1.5 Section 6.2 of the LP Agreement is hereby amended to replace the first paragraph of 6.2(a) with the following:
(a) During the Subordination Period. Available Cash with respect to any Quarter or portion thereof within the Subordination Period that is deemed to be Operating Surplus pursuant to the provisions of Sections 6.1 or 6.3, shall, subject to Section 51 of the Marshall Islands Act, be distributed as follows, subject to Section 5.10(b)(ii) in respect of Class B Convertible Preferred Units and except as otherwise required by Section 5.5 in respect of additional Partnership Securities issued pursuant thereto:
1.6 Section 6.2 of the LP Agreement is hereby amended to replace the first paragraph of 6.2(b) with the following:
(b) After the Subordination Period. Available Cash with respect to any Quarter after the Subordination Period that is deemed to be Operating Surplus pursuant to the provisions of Sections 6.1 or 6.3, shall, subject to Section 51 of the Marshall Islands Act, be distributed as follows, subject to Section 5.10(b)(ii) in respect of Class B Convertible Preferred Units and except as otherwise required by Section 5.5(b) in respect of additional Partnership Securities issued pursuant thereto:
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1.7 Section 6.3 of the LP Agreement is hereby amended to replace the first sentence with the following:
Section 6.3. Distributions of Available Cash from Capital Surplus. Available Cash that is deemed to be Capital Surplus pursuant to the provisions of Section 6.1(a) shall, subject to Section 51 of the Marshall Islands Act, be distributed, subject to Section 5.10(b)(ii) in respect of Class B Convertible Preferred Units and unless the provisions of Section 6.1 require otherwise, (i) first, 100% to the Unitholders holding Class B Convertible Preferred Units, Pro Rata, until there has been distributed in respect of each Class B Convertible Preferred Unit then Outstanding an aggregate amount from Capital Surplus equal to the Class B Convertible Preferred Unit Liquidation Value (provided, that the holders of the Class B Convertible Preferred Units may, with the approval of the holders of a majority of the Class B Convertible Preferred Units, elect to waive part or all of any distributions under this clause (i)) and (ii) thereafter, 100% to the General Partner and the Common Unitholders in accordance with their respective Percentage Interests, until a hypothetical holder of a Common Unit acquired on the Closing Date has received with respect to such Common Unit, during the period since the Closing Date through such date, distributions of Available Cash that are deemed to be Capital Surplus in an aggregate amount equal to the Initial Unit Price; provided, that for the avoidance of doubt, any amounts of Operating Surplus not distributed as Available Cash shall not be deemed to be Capital Surplus, and shall be carried over to subsequent Quarters as Operating Surplus.
1.8 Section 7.2(a) of the LP Agreement is hereby replaced in its entirety as follows:
(a) Except as described below with respect to a Voting Rights Triggering Event, the Board of Directors shall consist of eight individuals, three of whom shall be Appointed Directors and five of whom shall be Elected Directors. The Elected Directors shall be divided into three classes: Class I, comprising one Elected Director, Class II, comprising two Elected Directors, and Class III, comprising two Elected Directors. In the event of a Voting Rights Triggering Event, the Board of Directors shall consist of nine individuals, four of whom shall be Appointed Directors and five of whom shall be Elected Directors. The members of the Board of Directors shall each hold office until his successor is duly elected or appointed, as the case may be, and qualified, in accordance with subclauses (a)(i) and (a)(ii) below, or until his earlier death, resignation or removal. Any vacancy among the Appointed Directors shall be filled as if an Appointed Director had resigned, in accordance with Section 7.6. The successors of the initial members of the Board of Directors shall be appointed or elected, as the case may be, as follows:
(i) Three of the Appointed Directors shall be appointed by the General Partner on the date of the 2010 Annual Meeting and every third succeeding Annual Meeting thereafter;
(ii) The fourth Appointed Director, if applicable, shall be appointed by the holders of a majority of the outstanding Class B Convertible Preferred Units; and
(iii) The Class I Elected Director shall be elected at the 2008 Annual Meeting, one Class II Elected Director shall be elected at the 2009 Annual
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Meeting and one Class II Elected Director shall be elected in 2011 following the completion of certain transactions, and the Class III Elected Directors shall be elected at the 2010 Annual Meeting, in each case by a plurality of the votes of the Outstanding Common Units (excluding Common Units owned by Capital Maritime & Trading Corp. and its Affiliates) present in person or represented by proxy at the Annual Meeting, with each Outstanding Common Unit having one vote, in each case for a three-year term expiring on the date of the third succeeding Annual Meeting; provided, however, that the Class II Elected Director elected in 2011 shall serve a term equal to the Class II Elected Director elected at the 2009 Annual Meeting. At each Annual Meeting after the 2010 Annual Meeting, Elected Directors so classified who are elected to replace those whose terms expire at such Annual Meeting shall be elected to hold office until the third succeeding Annual Meeting.
1.9 Section 7.4 of the LP Agreement is hereby replaced in its entirety as follows:
Removal of Members of Board of Directors. Members of the Board of Directors may only be removed as follows:
(a) Any Appointed Director appointed by the General Partner may be removed at any time (i) without Cause, only by the General Partner and (ii) with Cause, by the General Partner or by the affirmative vote of the holders of a majority of the Outstanding Units at a properly called meeting of the Limited Partners.
(b) Any Appointed Director appointed by the holders of the Class B Convertible Preferred Units, if applicable, may be removed at any time without Cause, only by the affirmative decision of the holders of a majority of the Class B Convertible Preferred Units; provided, that if the right of the holders of the Class B Convertible Preferred Units to have and maintain any Appointed Director ceases in accordance with the provisions of Section 5.10(b)(v)(C), any Appointed Director may be removed by the General Partner.
(c) Any and all of the Elected Directors may be removed at any time, with Cause, only by the affirmative vote of a majority of the other Elected Directors or at a properly called meeting of the Limited Partners only by the affirmative vote of the holders of a majority of the Outstanding Units that are entitled to vote in an election of Elected Directors.
1.10 Section 7.6(a) of the LP Agreement is hereby replaced in its entirety as follows:
(a) Subject to Section 7.4(b), if any Appointed Director appointed by the General Partner is removed, resigns or is otherwise unable to serve as a member of the Board of Directors, the General Partner shall, in its sole discretion, appoint an individual to fill the vacancy.
1.11 Section 7.6(b), 7.6(c), and 7.6(d) are renumbered to 7.6(c), 7.6(d) and 7.6(e), respectively, and a new 7.6(b) is added as follows:
(b) If any Appointed Director appointed by the holders of a majority of the Class B Convertible Preferred Units is removed, resigns or is otherwise unable to serve as a
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member of the Board of Directors, the holders of a majority of the Class B Convertible Preferred Units shall appoint an individual to fill the vacancy.
1.12 Article XII of the LP Agreement is hereby amended to add a new Section 12.8 as follows:
Section 12.8 Class B Convertible Preferred Unit Liquidation Value. Notwithstanding anything to the contrary set forth in this Agreement, the holders of the Class B Convertible Preferred Units shall have the rights, preferences and privileges set forth in Section 5.10(b)(iv) upon liquidation of the Partnership pursuant to this Article XII.
1.13 The LP Agreement is hereby amended to add Schedule I, Exhibit B, Exhibit C and Exhibit D attached hereto as Schedule I, Exhibit B, Exhibit C and Exhibit D to the LP Agreement.
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2.
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Miscellaneous.
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2.1 All other provisions of the LP Agreement are hereby ratified and confirmed in all respects.
2.2 This Amendment shall be construed in accordance with and governed by the laws of the Republic of the Marshall Islands, without regard to the principles of conflicts of law.
2.3 This Amendment may be executed in several counterparts, all of which together shall constitute one agreement binding on all parties hereto.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.
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Capital Product Partners L.P.
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By
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/s/ Ioannis E. Lazaridis | |
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Name:
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Ioannis E. Lazaridis
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Title:
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Authorized Person
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EXHIBIT B
[FACE OF SECURITY]
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND ARE SUBJECT TO THE TERMS OF THE SECOND AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT OF CAPITAL PRODUCT PARTNERS L.P., AS AMENDED. THE HOLDER OF THIS SECURITY ACKNOWLEDGES FOR THE BENEFIT OF CAPITAL PRODUCT PARTNERS L.P. THAT THIS SECURITY MAY NOT BE SOLD, OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IF SUCH TRANSFER WOULD (A) VIOLATE THE THEN APPLICABLE SECURITIES LAWS OR RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER GOVERNMENTAL AUTHORITY WITH JURISDICTION OVER SUCH TRANSFER OR (B) CAUSE CAPITAL PRODUCT PARTNERS L.P. TO BE TREATED AS AN ASSOCIATION TAXABLE AS A CORPORATION OR OTHERWISE TO BE TAXED AS AN ENTITY FOR FEDERAL INCOME TAX PURPOSES (TO THE EXTENT NOT ALREADY SO TREATED OR TAXED). CAPITAL GP L.L.C., THE GENERAL PARTNER OF CAPITAL PRODUCT PARTNERS L.P., MAY IMPOSE ADDITIONAL RESTRICTIONS ON THE TRANSFER OF THIS SECURITY IF IT RECEIVES AN OPINION OF COUNSEL THAT SUCH RESTRICTIONS ARE NECESSARY TO AVOID A SIGNIFICANT RISK OF CAPITAL PRODUCT PARTNERS L.P. BECOMING TAXABLE AS A CORPORATION OR OTHERWISE BECOMING TAXABLE AS AN ENTITY FOR FEDERAL INCOME TAX PURPOSES (TO THE EXTENT NOT ALREADY SO TREATED OR TAXED). THE RESTRICTIONS SET FORTH ABOVE SHALL NOT PRECLUDE THE SETTLEMENT OF ANY TRANSACTIONS INVOLVING THIS SECURITY ENTERED INTO THROUGH THE FACILITIES OF ANY NATIONAL SECURITIES EXCHANGE ON WHICH THIS SECURITY IS LISTED OR ADMITTED TO TRADING.
CERTIFICATE EVIDENCING CLASS B CONVERTIBLE PREFERRED UNITS
REPRESENTING LIMITED PARTNER INTERESTS IN
CAPITAL PRODUCT PARTNERS L.P.
No. __________ __________ Class B Convertible Preferred Units
In accordance with Sections 4.1 and 5.10(b)(viii) of the Second Amended and Restated Agreement of Limited Partnership of Capital Product Partners L.P., as amended, supplemented or restated from time to time (the “Partnership Agreement”), Capital Product Partners L.P., a Marshall Islands limited partnership (the “Partnership”), hereby certifies that (the “Holder”) is the registered owner of the number of Class B Convertible Preferred Units set forth above representing limited partner interests in the Partnership (the “Class B Convertible Preferred Units”) transferable on the books of the Partnership, in person or by duly authorized attorney, upon surrender of this Certificate properly endorsed. The rights, preferences and limitations of the Class B Convertible Preferred Units are set forth in, and this Certificate and the Class B Convertible Preferred Units represented hereby are issued and shall in all respects be subject to the terms and provisions of, the Partnership Agreement. Copies of the Partnership Agreement are on file at, and will be furnished without charge on delivery of written request to the Partnership at, the principal office of the Partnership located at c/o Capital Ship Management Corp., 3 Iassonos Street, Piraeus, 185 37 Greece. Capitalized terms used herein but not defined shall have the meanings given them in the Partnership Agreement.
The Holder, by accepting this Certificate, is deemed to have (i) requested admission as, and agreed to become, a Limited Partner and to have agreed to comply with and be bound by and to have executed the Partnership Agreement, (ii) represented and warranted that the Holder has all right, power and authority and, if an individual, the capacity necessary to enter into the Partnership Agreement, (iii) granted the powers of attorney provided for in the Partnership Agreement and (iv) made the waivers and given the consents and approvals contained in the Partnership Agreement.
This Certificate shall not be valid for any purpose unless it has been countersigned and registered by the Transfer Agent and Registrar, and is transferable only on the books of the Partnership by the holder hereof in person or by a duly authorized attorney upon surrender of this Certificate with a proper endorsement.
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Dated:
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Capital Product Partners L.P.
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Countersigned and Registered by:
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By:
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as Transfer Agent and Registrar
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Authorized Person
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By:
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By:
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Authorized Signature
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Secretary
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[REVERSE OF CERTIFICATE]
The Partnership will furnish without charge, within 15 days after receipt of written request therefor, to each unitholder who so requests the powers, designations, preferences and relative participating, optional or special rights of each class or units or series thereof of the Partnership and the qualifications, limitations or restrictions of such preferences and/or rights. Such request should be addressed to the Partnership or its General Partner.
Each holder shall have the right, at such holder’s option, at any time, to convert all or any portion of such holder’s Class B Convertible Preferred Units into Common Units representing limited partnership interests in the Partnership (the “Common Units”), as provided in the Partnership Agreement. On or after May 22, 2015, the Partnership may, upon the occurrence and continuation of certain events specified in the Partnership Agreement, at its option, at any time or from time to time, cause all or some of the Class B Convertible Preferred Units to be converted into Common Units, subject to the conditions as provided in the Partnership Agreement. The preceding description is qualified in its entirety by reference to the Partnership Agreement.
ASSIGNMENT OF CLASS B CONVERTIBLE PREFERRED UNIT
IN CAPITAL PRODUCT PARTNERS L.P.
FOR VALUE RECEIVED, __________ hereby assigns, conveys, sells and transfers unto
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(Please print or typewrite name and address of Assignee)
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(Please insert Social Security or other identifying number of Assignee)
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__________ Class B Convertible Preferred Units representing limited partner interests evidenced by this Certificate, subject to the Partnership Agreement, and does hereby irrevocably constitute and appoint as its attorney-in-fact with full power of substitution to transfer the same on the books of Capital Product Partners L.P.
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Date:
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NOTE:
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The signature to any endorsement hereon must correspond with the name as written upon the face of this Certificate in every particular, without alteration, enlargement or change.
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THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15
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(Signature)
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(Signature)
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No transfer of the Class B Convertible Preferred Units evidenced hereby will be registered on the books of the Partnership, unless the Certificate evidencing the Class B Convertible Preferred Units to be transferred is surrendered for registration or transfer.
EXHIBIT C
Holder Conversion Notice
[Date]
The undersigned hereby elects to convert the number of Class B Convertible Preferred Units (“Class B Convertible Preferred Units”) of Capital Product Partners L.P., a Marshall Islands limited partnership (the “Partnership”), indicated below into common units (“Common Units”) of the Partnership, according to the conditions hereof, as of the date written below. If Common Units are to be issued in the name of a person other than the holder of such Class B Convertible Preferred Units, such holder will pay all transfer taxes payable with respect thereto and will deliver such certificates and opinions as may be required by the Partnership or its transfer agent. No fee will be charged to the holders for any conversion, except for any such transfer taxes.
Date to Effect Conversion:_______________________________________________________
Number of Class B Convertible Preferred Units Owned:________________________________
Number of Class B Convertible Preferred Units to be Converted into Common Units:_________
Number of Common Units to be Issued:____________________________________________
Name in which Certificate for Common Units to be Issued: ____________________________
Address for Delivery:____________________________________________________________
Number of Class B Convertible Preferred Units to be Reissued, if less than all Class B Convertible Preferred Units represented by accompanying Certificate(s) are to be converted:_____________________________________________________________________
[HOLDER]
By: ________________________________
Authorized Officer:
Title:
EXHIBIT D
Partnership Mandatory Conversion Notice
[Record Holder Addressee]
[Date]
Capital Product Partners L.P., a Marshall Islands limited partnership (the “Partnership”), hereby elects to convert its Class B Convertible Preferred Units (“Class B Convertible Preferred Units”), in the amount provided below, per the records of the Partnership, into common units (“Common Units”) of the Partnership, as of the date written below.
Date to Effect Conversion:_______________________________________________________
Number of Class B Convertible Preferred Units Owned:________________________________
Number of Class B Convertible Preferred Units to be Converted into Common Units:_________
Number of Common Units to be Issued:_____________________________________________
Name in which Certificate for Common Units to be Issued: ____________________________
Address for Delivery:____________________________________________________________
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CAPITAL PRODUCT PARTNERS L.P.
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By: ______________________________
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Authorized Officer:
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Title:
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EXHIBIT III
EXECUTION VERSION
REGISTRATION RIGHTS AGREEMENT
by and among
CAPITAL PRODUCT PARTNERS L.P.
and
THE HOLDERS PARTY HERETO
_____________________
Dated as of May 22, 2012
TABLE OF CONTENTS
Page
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Section 1.
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Certain Definitions
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1
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Section 2.
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Piggyback Registrations
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4
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(a)
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Right to Piggyback
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4
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(b)
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Priority on Primary Piggyback Registrations
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5
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(c)
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Priority on Secondary Piggyback Registrations
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5
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(d)
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Selection of Underwriters
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6
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(e)
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Basis of Participations
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6
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(f)
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Opt-Out Notice
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6
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Section 3.
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Shelf Registration
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6
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(a)
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Shelf Registration
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6
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(b)
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Right to Effect Shelf Takedowns
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7
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(c)
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Effective Period of Shelf Registrations
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7
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(d)
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Failure to Go Effective
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7
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Section 4.
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Suspension Periods
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8
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(a)
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Suspension Periods
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8
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(b)
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Liquidated Damages
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8
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(c)
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Other Lockups
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9
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(d)
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Subscription Agreement Restrictions
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9
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Section 5.
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Holdback Agreements
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9
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Section 6.
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Registration Procedures
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10
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Section 7.
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Registration Expenses
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14
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Section 8.
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Indemnification
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15
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Section 9.
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Securities Act Restrictions
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17
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Section 10.
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Rule 144 Reporting
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17
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Section 11.
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Transfers of Rights
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18
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Section 12.
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Miscellaneous
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18
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(a)
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Notices
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18
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(b)
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No Waivers
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19
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(c)
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Assignment
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19
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(d)
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No Third-Party Beneficiaries
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19
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(e)
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Governing Law; Submission to Jurisdiction; Waiver of Jury Trial, Etc.
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20
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(f)
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Counterparts; Effectiveness
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20
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(g)
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Entire Agreement
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20
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(h)
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Captions
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20
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(i)
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Severability
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20
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(j)
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Independent Nature of Holder’s Obligations
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20
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(k)
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Recapitalization, Exchanges, Etc. Affecting the Units
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21
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(l)
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Aggregation of Registrable Securities
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21
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(m)
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Specific Performance
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21
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(n)
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Grant of Subsequent Registration Rights
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21
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(o)
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Amendments
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21
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-ii-
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”), is made and entered into as of May 22, 2012 by and among Capital Product Partners L.P., a limited partnership organized under the laws of the Republic of the Marshall Islands (“CPLP”), and each of the purchasers listed on Schedule A hereto (the “Holders”).
WHEREAS, CPLP and the Holders are parties to a Class B Convertible Preferred Unit Subscription Agreement dated as of May 11, 2012 (the “Subscription Agreement”) pursuant to which the Holders are purchasing from CPLP the number of Class B Convertible Preferred Units, liquidation preference amount $9.00 per unit, as established by the Class B Amendment (as defined below) (the “Class B Units”), set forth opposite such Holder’s name on Schedule A hereto;
WHEREAS, it is a condition to the Holder’s willingness to enter into the Subscription Agreement that the parties enter into this Agreement in order to create certain registration rights for the Holders as set forth below;
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valid consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement hereby agree as follows:
Section 1. Certain Definitions.
In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following meanings:
“Affiliate” means, with respect to a specified Person, any other Person, whether now in existence or hereafter created, directly or indirectly controlling, controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control” (including, with correlative meanings, “controlling”, “controlled by”, and “under common control with”) means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.
“Agreement” means this Registration Rights Agreement, including all amendments, modifications and supplements and any exhibits or schedules to any of the foregoing, and shall refer to this Registration Rights Agreement as the same may be in effect at the time such reference becomes operative.
“Class B Amendment” means the Second Amendment to the Second Amended and Restated Agreement of Limited Partnership of CPLP, as amended.
“Class B Units” has the meaning set forth in the Recitals.
“Class B Unit Price” means the amount per Class B Unit each Holder will pay to CPLP to purchase the Purchased Units.
“Closing Date” means May 22, 2012.
“Converted Units” means the Common Units acquired by a Holder upon conversion of Class B Units pursuant to Section 5.10(b)(viii) of the Partnership Agreement.
“Common Units” means the common units representing limited partner interests in CPLP.
“CPLP” has the meaning set forth in the Preamble.
“EDGAR” means the Electronic Data Gathering, Analysis, and Retrieval system maintained by the SEC.
“Exchange Act” means the Securities Exchange Act of 1934.
“Form F-3” means a registration statement on Form F-3 under the Securities Act or such successor forms thereto permitting registration of securities under the Securities Act.
“Holdback Agreement” has the meaning set forth in Section 5.
“Holdback Period” has the meaning set forth in Section 5.
“Holders” has the meaning set forth in the Preamble. References herein to the Holders shall apply to Permitted Transferees who become Holders pursuant to Section 11; provided, that for purposes of all thresholds and limitations herein, the actions of the Permitted Transferees shall be aggregated.
“Liquidated Damages” has the meaning set forth in Section 3(d).
“Liquidated Damages Multiplier” means the product of the Class B Unit Price times the number of Purchased Units purchased by such Holder that may not be disposed of without restriction and without the need for current public information pursuant to any section of Rule 144 (or any similar provision then in effect) under the Securities Act.
“NASDAQ” means the Nasdaq Global Market.
“Opt-Out Notice” has the meaning set forth in Section 2(f).
“Parity Securities” has the meaning set forth in Section 2(a).
“Partnership Agreement” means the Second Amended and Restated Agreement of Limited Partnership of CPLP dated February 22, 2010, as amended from time to time.
“Person” means any individual, corporation, company, voluntary association, partnership, joint venture, trust, limited liability company, unincorporated organization or government or any agency, instrumentality or political subdivision thereof, or any other form of entity.
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“Permitted Transferee” means an Affiliate of a Holder or any other Holder or an Affiliate of such other Holder; provided, that any such transferee agrees to the restrictions set forth in the Section 5.06 of the Subscription Agreement.
“Piggyback Registration” has the meaning set forth in Section 2(a).
“Prospectus” means the prospectus or prospectuses (whether preliminary or final) included in any Registration Statement and relating to Registrable Securities, as amended or supplemented and including all material incorporated by reference in such prospectus or prospectuses.
“Purchased Units” means the Class B Units to be issued and sold to the Holders pursuant to the Subscription Agreement.
“Registrable Securities” means, at any time, (i) the Converted Units, and (ii) any securities issued by CPLP after the date hereof in respect of the Converted Units by way of a unit dividend or unit split or in connection with a combination of Units, recapitalization, merger, consolidation or other reorganization, but excluding (iii) any and all Converted Units and other securities referred to in clauses (i) and (ii) that at any time after the date hereof (a) have been sold pursuant to an effective registration statement or Rule 144 under the Securities Act, (b) have been sold in a transaction where a subsequent public distribution of such securities would not require registration under the Securities Act, (c) after one year from the Closing Date, are eligible for sale pursuant to Rule 144 under the Securities Act without limitation thereunder on volume or manner of sale, (d) are not outstanding or (e) have been transferred in violation of Section 9 hereof or the provisions of the Subscription Agreement or to a Person that does not become a Holder pursuant to Section 11 hereof (or any combination of clauses (a), (b), (c), (d) and (e)). It is understood and agreed that, once a security of the kind described in clause (i) or (ii) above becomes a security of the kind described in clause (iii) above, such security shall cease to be a Registrable Security for all purposes of this Agreement and CPLP’s obligations regarding Registrable Securities hereunder shall cease to apply with respect to such security.
“Registration Expenses” has the meaning set forth in Section 7(a).
“Registration Statement” means any registration statement of CPLP which covers any of the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus, amendments and supplements to such Registration Statement, including post-effective amendments, all exhibits and all documents incorporated by reference in such Registration Statement.
“SEC” means the Securities and Exchange Commission or any successor agency.
“Securities Act” means the Securities Act of 1933, as amended.
“Selling Holder” means a Holder who is selling Registrable Securities under a registration statement pursuant to the terms of this Agreement.
“Shelf Registration Statement” has the meaning set forth in Section 3(a).
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“Shelf Takedown” has the meaning set forth in Section 3(b).
“Subscription Agreement” means the agreement specified in the first Recital hereto, as such agreement may be amended from time to time.
“Suspension Period” has the meaning set forth in Section 4.
“Termination Date” means the first date on which there are no Registrable Securities or there are no Holders.
“Underwritten Offering” means a registered offering in which securities of CPLP are sold to one or more underwriters on a firm-commitment basis for reoffering to the public.
“Units” means the Common Units, except that if at any time Registrable Securities include securities of CPLP other than Common Units, then, when referring to Units other than Registrable Securities, “Units” shall include the class or classes of such other securities of CPLP.
In addition to the above definitions, unless the context requires otherwise:
(i) any reference to any statute, regulation, rule or form as of any time shall mean such statute, regulation, rule or form as amended or modified and shall also include any successor statute, regulation, rule or form from time to time;
(ii) “including” shall be construed as inclusive without limitation, in each case notwithstanding the absence of any express statement to such effect, or the presence of such express statement in some contexts and not in others;
(iii) references to “Section” are references to Sections of this Agreement;
(iv) words such as “herein”, “hereof”, “hereinafter” and “hereby” when used in this Agreement refer to this Agreement as a whole;
(v) references to “business day” mean any day except Saturday, Sunday and any day which shall be a legal holiday or a day on which banking institutions in the State of New York generally are authorized or required by law or other governmental action to close; and
(vi) references to “dollars” and “$” mean U.S. dollars.
Section 2. Piggyback Registrations.
(a) Right to Piggyback. Whenever prior to the Termination Date CPLP proposes to file (i) a shelf registration statement, other than the Registration Statement contemplated by Section 3(a), or a prospectus supplement to an effective shelf registration statement, other than the Registration Statement contemplated by Section 3(a) and the Holders may be included without the filing of a post-effective amendment, or (ii) a registration statement, other than a shelf registration statement, (in each case other than on a registration statement on Form S-8, F-8,
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(b) Priority on Primary Piggyback Registrations. If a Piggyback Registration is initiated as a primary Underwritten Offering on behalf of CPLP and the managing underwriters advise CPLP and the Selling Holders (if any Holder has elected to include Registrable Securities in such Piggyback Registration) that in their opinion the number of Units proposed to be included in such offering exceeds the number of Units (of any class) which can be sold in such offering without materially delaying or jeopardizing the success of the offering (including the price per unit of the Units proposed to be sold in such offering), CPLP shall include in such registration and offering (i) first, the number of Units that CPLP proposes to sell, and (ii) second, the number of Units requested to be included therein by holders of Units which are neither expressly senior nor subordinated to the Registrable Securities (the “Parity Securities”), including the Selling Holders (if any Holder has elected to include Registrable Securities in such Piggyback Registration) and for the avoidance of doubt, includes any Registrable Securities held by any Affiliates of the General Partner that may be included in such offering pursuant to Section 7.19(b) of the Partnership Agreement, pro rata among all such holders on the basis of the number of Units requested to be included therein by all such holders or as such holders and CPLP may otherwise agree. The pro rata allocations for each Selling Holder who has requested participation in such Underwritten Offering shall be the product of (a) the aggregate number of Registrable Securities proposed to be sold in such Underwritten Offering multiplied by (b) the fraction derived by dividing (x) the number of Registrable Securities owned by such Selling Holder by (y) the aggregate number of Registrable Securities owned by all Selling Holders plus the aggregate number of Parity Securities owned by all holders of Parity Securities that are participating in the Underwritten Offering.
(c) Priority on Secondary Piggyback Registrations. If a Piggyback Registration is initiated as an underwritten registration on behalf of a holder of Units other than a Holder (including under Section 7.19 of the Partnership Agreement), and the managing underwriters
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advise CPLP that in their opinion the number of Units proposed to be included in such registration exceeds the number of Units (of any class) which can be sold in such offering without materially delaying or jeopardizing the success of the offering (including the price per unit of the Units to be sold in such offering), then CPLP shall include in such registration (i) first, the number of Units that CPLP proposes to sell, and (ii) second, the number of Units requested to be included therein by the holder(s) requesting such registration and any other holders of Units including the Selling Holders which are pari passu with the requesting holder(s) (if any Holder has elected to include Registrable Securities in such Piggyback Registration), which, for the avoidance of doubt, includes any Registrable Securities held by any Affiliates of the General Partner that may be included in such registration pursuant to Section 7.19(b) of the Partnership Agreement.
(d) Selection of Underwriters. In the case of any Piggyback Registration involving an Underwritten Offering, CPLP shall have the right to select the managing underwriter or underwriters to administer any such offering.
(e) Basis of Participations. The Holders may not sell Registrable Securities in any offering pursuant to a Piggyback Registration unless each Selling Holder (i) agrees to sell such Units on the same basis provided in the underwriting or other distribution arrangements approved by CPLP and that apply to CPLP and/or any other holders involved in such Piggyback Registration and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements, lockups and other documents required under the terms of such arrangements.
(f) Opt-Out Notice. Any Selling Holder shall have the right to withdraw such Selling Holder’s request for inclusion of such Selling Holder’s Registrable Securities in such Underwritten Offering by giving written notice to CPLP of such withdrawal at or prior to the time of pricing of such Underwritten Offering. Any Holder may deliver written notice (an “Opt-Out Notice”) to CPLP requesting that such Holder not receive notice from CPLP of any proposed Underwritten Offering; provided, however, that such Holder may later revoke any such Opt-Out Notice in writing. Following receipt of an Opt-Out Notice from a Holder (unless subsequently revoked), CPLP shall not be required to deliver any notice to such Holder pursuant to this Section 2(f) and such Holder shall no longer be entitled to participate in Underwritten Offerings by CPLP pursuant to this Section 2. The Holders indicated on Schedule A hereto as having opted out shall each be deemed to have delivered an Opt-Out Notice as of the date hereof.
Section 3. Shelf Registration.
(a) Shelf Registration. CPLP shall use commercially reasonable efforts to prepare and file a Registration Statement (or any amendment or supplement thereto) under the Securities Act to permit the public resale of Registrable Securities then outstanding, in accordance with any method or combination of methods legally available to the Holders of such Registrable Securities, from time to time as permitted by Rule 415 promulgated under the Securities Act or otherwise with respect to all of the Registrable Securities (a “Shelf Registration Statement”). CPLP shall use commercially reasonable efforts to cause such Shelf Registration Statement to become effective as soon as practical thereafter, subject to Section 4. If permitted under the
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(b) Right to Effect Shelf Takedowns. The Holders shall be entitled, at any time and from time to time when a Shelf Registration Statement is effective and until the Termination Date, to sell such Registrable Securities as are then registered pursuant to such Registration Statement (each, a “Shelf Takedown”).
(c) Effective Period of Shelf Registrations. CPLP shall use commercially reasonable efforts to keep any Shelf Registration Statement effective, supplemented and amended to the extent necessary to ensure that it is available for the resale of all Registrable Securities by the Holders until all Registrable Securities covered by such Shelf Registration Statement cease to be Registrable Securities. Notwithstanding the foregoing, CPLP shall not be obligated to keep any such registration statement effective, or to permit Registrable Securities to be registered, offered or sold thereunder, at any time on or after the Termination Date.
(d) Failure to Go Effective. If the Shelf Registration Statement required by Section 3(a) is not declared effective within 180 days after the Closing Date, then each Holder of Registrable Securities shall be entitled to a payment (with respect to the Purchased Units of each such Holder), as liquidated damages and not as a penalty, of 0.25% of the Liquidated Damages Multiplier per 30-day period, that shall accrue daily, for the first 60 days following the 180th day, increasing by an additional 0.25% of the Liquidated Damages Multiplier per 30-day period, that shall accrue daily, for each subsequent 60 days (i.e., 0.5% for 61-120 days, 0.75% for 121-180 days and 1.0% thereafter), up to a maximum of 1.00% of the Liquidated Damages Multiplier per 30-day period (the “Liquidated Damages”). The Liquidated Damages payable pursuant to the immediately preceding sentence shall be payable within ten (10) business days after the end of each such 30-day period. Any Liquidated Damages shall be paid to each Holder in immediately available funds; provided, however, if CPLP certifies that it is unable to pay Liquidated Damages in cash because such payment would result in a breach under a credit facility or other debt instrument, then CPLP may pay the Liquidated Damages in kind in the form of the issuance of additional Common Units. Upon any issuance of Common Units as Liquidated Damages, CPLP shall promptly (i) prepare and file an amendment to the Shelf Registration Statement prior to its effectiveness adding such Common Units to such Shelf Registration Statement as additional Registrable Securities and (ii) prepare and file a supplemental listing application with NASDAQ (or such other market on which the Common Units are then listed and traded) to list such additional Common Units. The determination of the number of Common Units to be issued as Liquidated Damages shall be equal to the amount of Liquidated Damages divided by the volume-weighted average price of the Common Units on the NASDAQ (or such other market on which the Common Units are then listed and traded) over the consecutive ten (10) trading day period ending on the close of trading on the trading day immediately preceding the date on which the Liquidated Damages payment is due. The accrual of Liquidated Damages to a Holder shall cease at the earlier of (i) the Shelf Registration Statement becoming effective or (ii) when such Holder no longer holds Registrable Securities, and any payment of Liquidated Damages shall be prorated for any period of less than 30 days in which the payment of Liquidated Damages ceases. If the CPLP is unable to cause a Shelf Registration Statement to go effective within 180 days after the Closing Date as a result of an acquisition, merger, reorganization, disposition or other similar transaction, then CPLP may request a waiver of the Liquidated Damages, and each
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Section 4. Suspension Periods.
(a) Suspension Periods. CPLP may delay the filing or effectiveness of a Shelf Registration or prior to the pricing of any offering of Registrable Securities pursuant to a Shelf Registration, delay an offering (and, if it so chooses, withdraw any registration statement that has been filed), but only if CPLP determines (x) that proceeding with such an offering would require CPLP to disclose material information that would not otherwise be required to be disclosed at that time and that the disclosure of such information at that time would not be in CPLP or its limited partner’s best interests, or (y) that the registration or offering to be delayed would, if not delayed, materially adversely affect CPLP and its subsidiaries taken as a whole or materially interfere with, or jeopardize the success of, any pending or proposed material transaction, including any debt or equity financing, any acquisition or disposition, any recapitalization or reorganization or any other material transaction, whether due to commercial reasons, a desire to avoid premature disclosure of information or any other reason. Any period during which CPLP has delayed a filing, an effective date or an offering pursuant to this Section 4 is herein called a “Suspension Period.” CPLP shall provide prompt written notice to the Holders of the commencement and termination of any Suspension Period. The Holders shall keep the existence of each Suspension Period confidential and refrain from making offers and sales of Registrable Securities (and direct any other Persons making such offers and sales to refrain from doing so) during each Suspension Period. In no event shall a Suspension Period or Suspension Periods be in effect in excess of an aggregate of 60 days in any 180 day period or 90 days in any 365 day period.
(b) Liquidated Damages. If (i) the Selling Holders shall be prohibited from selling their Registrable Securities under the Registration Statement or other registration statement contemplated by this Agreement as a result of a suspension pursuant to the immediately preceding paragraph in excess of the periods permitted therein or (ii) the Registration Statement or other registration statement contemplated by this Agreement is filed and declared effective but, until the Termination Date, shall thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within 10 days by a post-effective amendment thereto, a supplement to the prospectus or a report filed with the SEC pursuant to Section 13(a), 13(c), 14 or l5(d) of the Exchange Act, then, until the suspension is lifted or a post-effective amendment, supplement or report is filed with the SEC, but not including any day on which a suspension is lifted or such amendment, supplement or report is filed and declared effective, if applicable, CPLP shall pay the Selling Holders an amount equal to the Liquidated Damages, following the earlier of (x) the date on which the suspension period exceeded the permitted period and (y) the eleventh (11th) day after the Registration Statement or other registration statement contemplated by this Agreement ceased to be effective or failed to be useable for its intended purposes, as liquidated damages and not as a penalty (for purposes of calculating Liquidated Damages, the date in (x) or (y) above shall be deemed the “180th day,” as used in the definition of Liquidated Damages). For purposes of this paragraph, a suspension shall be deemed lifted on the date that notice that the suspension has been terminated is delivered to the Selling Holders. Liquidated Damages shall cease to accrue pursuant to this paragraph upon the Purchased Units of such Holder becoming eligible for resale without restriction and without the
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(c) Other Lockups. Notwithstanding any other provision of this Agreement, CPLP shall not be obligated to take any action hereunder that would violate any lockup or similar restriction binding on CPLP in connection with a prior or pending registration or Underwritten Offering.
(d) Subscription Agreement Restrictions. Nothing in this Agreement shall affect the restrictions on transfers of Units and other provisions of the Subscription Agreement, which shall apply independently hereof in accordance with the terms thereof.
Section 5. Holdback Agreements.
The restrictions in this Section 5 shall apply for as long as the Holders are the beneficial owners of any Registrable Securities. If CPLP sells Units or other securities convertible into or exchangeable for (or otherwise representing a right to acquire) Units in a primary Underwritten Offering pursuant to any registration statement under the Securities Act (but only if the Holders are provided their piggyback rights, if any, in accordance with Sections 2(a) and 2(b)), or if any other Person sells Units in a secondary Underwritten Offering pursuant to a Piggyback Registration in accordance with Sections 2(a) and 2(b), and if the managing underwriters for such offering advise CPLP (in which case CPLP promptly shall notify the Holders) that a public sale or distribution of Units outside such offering would materially adversely affect such offering, then, if requested by CPLP, each Holder shall agree, as contemplated in this Section 5, not to (and to cause its Affiliates not to) sell, transfer, pledge, issue, grant or otherwise dispose of, directly or indirectly (including by means of any short sale), or request the registration of, any Registrable Securities (or any securities of any Person that are convertible into or exchangeable for, or otherwise represent a right to acquire, any Registrable Securities) for a period (each such period, a “Holdback Period”) beginning on the business day before the pricing date for the Underwritten Offering and extending through the earlier of (i) the 60th day after such pricing date (subject to customary automatic extension in the event of the release of earnings results of or material news relating to CPLP) and (ii) such earlier day (if any) as may be designated for this purpose by the managing underwriters for such offering (each such agreement of a Holder, a “Holdback Agreement”). Each Holdback Agreement shall be in writing in form and substance satisfactory to CPLP and the managing underwriters. Notwithstanding the foregoing, the duration of the foregoing restrictions shall be no longer than the duration of the shortest restriction generally imposed by the underwriters on CPLP or the officers, directors or any other Affiliate of CPLP on whom a restriction is imposed and (ii) the restrictions set forth in this Section 5 shall not apply to the extent any Registrable Securities are included in such Underwritten Offering by such Holder. In addition, this Section 5 shall not apply to any Holder that is not entitled to participate in such Underwritten Offering, including those Holders who have delivered an Opt-Out Notice prior to receiving notice of the Underwritten Offering.
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Section 6. Registration Procedures.
(a) Whenever the Holders request that any Registrable Securities be registered pursuant to this Agreement, CPLP shall use commercially reasonable efforts to effect, as soon as practical as provided herein, the registration and the sale of such Registrable Securities in accordance with the intended methods of disposition thereof, and, pursuant thereto, CPLP shall, as soon as practical as provided herein:
(i) subject to the other provisions of this Agreement, use commercially reasonable efforts to prepare and file with the SEC a Registration Statement with respect to such Registrable Securities and cause such Registration Statement to become effective (unless it is automatically effective upon filing);
(ii) use commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep such Registration Statement effective for the relevant period required hereunder, but no longer than is necessary to complete the distribution of the Units covered by such Registration Statement, and to comply with the applicable requirements of the Securities Act with respect to the disposition of all the Units covered by such Registration Statement during such period in accordance with the intended methods of disposition set forth in such Registration Statement;
(iii) if a prospectus supplement will be used in connection with the marketing of an Underwritten Offering from the Registration Statement and the managing underwriter at any time shall notify CPLP in writing that, in the sole reasonable judgment of such managing underwriter, inclusion of detailed information to be used in such prospectus supplement is of material importance to the success of the Underwritten Offering of such Registrable Securities, CPLP shall use its commercially reasonable efforts to include such information in such prospectus supplement;
(iv) furnish to each Selling Holder (i) as far in advance as reasonably practicable before filing the Registration Statement or any other registration statement contemplated by this Agreement or any supplement or amendment thereto, upon request, copies of reasonably complete drafts of all such documents proposed to be filed (including exhibits and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC), and provide each such Selling Holder the opportunity to object to any information pertaining to such Selling Holder and its plan of distribution that is contained therein and make the corrections reasonably requested by such Selling Holder with respect to such information prior to filing the Registration Statement or such other registration statement or supplement or amendment thereto, and (ii) such number of copies of the Registration Statement or such other registration statement and the prospectus included therein and any supplements and amendments thereto as such Selling Holder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities covered by such Registration Statement or other registration statement;
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(v) promptly notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered by any of them under the Securities Act, of (i) the filing of the Registration Statement or any other registration statement contemplated by this Agreement or any prospectus or prospectus supplement to be used in connection therewith, or any amendment or supplement thereto, and, with respect to such Registration Statement or any other registration statement or any post-effective amendment thereto, when the same has become effective; and (ii) the receipt of any written comments from the SEC with respect to any filing referred to in clause (i) and any written request by the SEC for amendments or supplements to the Registration Statement or any other registration statement or any prospectus or prospectus supplement thereto;
(vi) upon request and subject to appropriate confidentiality obligations, furnish to each Selling Holder copies of any and all transmittal letters or other correspondence with the Commission or any other governmental agency or self-regulatory body or other body having jurisdiction (including any domestic or foreign securities exchange) relating to such offering of Registrable Securities;
(vii) use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement, or the lifting of any suspension of the qualification or exemption from qualification of any Registrable Securities for sale in any jurisdiction in the United States;
(viii) in the case of an Underwritten Offering, furnish upon request, (i) an opinion of counsel for CPLP dated the date of the closing under the underwriting agreement and (ii) a “cold comfort” letter, dated the pricing date of such Underwritten Offering and a letter of like kind dated the date of the closing under the underwriting agreement, in each case, signed by the independent public accountants who have certified CPLP’s financial statements included or incorporated by reference into the applicable registration statement, and each of the opinion and the “cold comfort” letter shall be in customary form and covering substantially the same matters with respect to such registration statement (and the prospectus and any prospectus supplement included therein) as have been customarily covered in opinions of issuer’s counsel and in accountants’ letters delivered to the underwriters in Underwritten Offerings of securities by CPLP and such other matters as such underwriters and Selling Holders may reasonably request;
(ix) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the SEC, and make available to its security holders, as soon as reasonably practicable, an earnings statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
(x) make available to the appropriate representatives of the managing underwriter and Selling Holders access to such information and CPLP personnel as is reasonable and customary to enable such parties to establish a due diligence defense under the Securities Act; provided, that CPLP need not disclose any non-public
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information to any such representative unless and until such representative has entered into a confidentiality agreement with CPLP;
(xi) deliver, without charge, such number of copies of the preliminary and final Prospectus and any supplement thereto as the Selling Holders may reasonably request in order to facilitate the disposition of the Registrable Securities of the Selling Holder covered by such Registration Statement in conformity with the requirements of the Securities Act;
(xii) use commercially reasonable efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such U.S. jurisdictions as the Selling Holders reasonably request and continue such registration or qualification in effect in such jurisdictions for as long as the applicable Registration Statement may be required to be kept effective under this Agreement (provided that CPLP will not be required to (I) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (v), (II) subject itself to taxation in any such jurisdiction or (III) consent to general service of process in any such jurisdiction);
(xiii) use its commercially reasonable efforts to cause the Registrable Securities to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of CPLP to enable the Selling Holders to consummate the disposition of such Registrable Securities;
(xiv) enter into customary agreements and take such other actions as are reasonably requested by the Selling Holders or the underwriters, if any, in order to expedite or facilitate the disposition of such Registrable Securities; and
(xv) notify the Selling Holders and each distributor of such Registrable Securities identified by the Selling Holders, at any time when a Prospectus relating thereto would be required under the Securities Act to be delivered by such distributor, of (i) the occurrence of any event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (ii) the issuance or express threat of issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or any other registration statement contemplated by this Agreement, or the initiation of any proceedings for that purpose; or (iii) the receipt by CPLP of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the applicable securities or blue sky laws of any jurisdiction. Following the provision of such notice, CPLP shall use commercially reasonable efforts to prepare, as soon as practical, a supplement or amendment to such Prospectus so that, as thereafter delivered to any prospective purchasers of such Registrable Securities, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading and to take such other commercially reasonable action as is
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necessary to remove a stop order, suspension, threat thereof or proceedings related thereto;
(xvi) use commercially reasonable efforts to cause all such Registrable Securities to be listed on each primary securities exchange (if any) on which securities of the same class issued by CPLP are then listed; and
(xvii) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such Registration Statement and, a reasonable time before any proposed sale of Registrable Securities pursuant to a Registration Statement, provide the transfer agent with printed certificates for the Registrable Securities to be sold, subject to the provisions of Section 11.
(b) No Registration Statement (including any amendments thereto) shall contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein not misleading, and no Prospectus (including any supplements thereto) shall contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case, except for any untrue statement or alleged untrue statement of a material fact or omission or alleged omission of a material fact made in reliance on and in conformity with written information furnished to CPLP by or on behalf of a Holder or any underwriter or other distributor specifically for use therein.
(c) At all times after CPLP has filed a registration statement with the SEC pursuant to the requirements of the Securities Act and until the Termination Date, CPLP shall use commercially reasonable efforts to continuously maintain in effect the registration statement of Common Units under Section 12 of the Exchange Act and to use commercially reasonable efforts to file all reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder, all to the extent required to enable the Holders to be eligible to sell Registrable Securities (if any) pursuant to Rule 144 under the Securities Act.
(d) CPLP may require the Selling Holders and each distributor of Registrable Securities as to which any registration is being effected to furnish to CPLP information regarding such Person and the distribution of such securities as CPLP may from time to time reasonably request in connection with such registration.
(e) Each Holder agrees by having its Converted Units treated as Registrable Securities hereunder that, upon being advised in writing by CPLP of the occurrence of an event pursuant to Section 6(a)(xv), such Holder will immediately discontinue (and direct any other Persons making offers and sales of Registrable Securities to immediately discontinue) offers and sales of Registrable Securities pursuant to any Registration Statement (other than those pursuant to a plan that is in effect prior to such time and that complies with Rule 10b5-1 of the Exchange Act) until it is advised in writing by CPLP that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 6(a)(xv), and, if so directed by CPLP, the Holders will deliver to CPLP all copies, other than permanent file
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copies then in a Holder’s possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice.
(f) CPLP may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus. Neither the Holders nor any other seller of Registrable Securities may use a free-writing prospectus to offer or sell any such units without CPLP’s prior written consent.
(g) It is understood and agreed that any failure of CPLP to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Sections 3 or 6 or otherwise in this Agreement, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite CPLP’s good faith and commercially reasonable efforts to resolve those comments, shall not be a breach of this Agreement.
(h) It is further understood and agreed that CPLP shall not have any obligations under this Section 6 at any time on or after the Termination Date, unless an Underwritten Offering in which the Holders participate has been priced but not completed prior to the Termination Date, in which event CPLP’s obligations under this Section 6 shall continue with respect to such offering until it is so completed (but not more than 60 days after the commencement of the offering).
(i) Notwithstanding anything to the contrary in this Agreement, CPLP shall not be required to file a Registration Statement or include Registrable Securities in a Registration Statement unless it has received from the Holders, at least five days prior to the anticipated filing date of the Registration Statement, requested information required to be provided by the Holders for inclusion therein.
Section 7. Registration Expenses.
(a) All expenses incident to CPLP’s performance of or compliance with this Agreement, including all registration and filing fees, fees and expenses of compliance with securities or blue sky laws, Financial Industry Regulatory Authority fees, NASDAQ fees, listing application fees, printing expenses, transfer agent’s and registrar’s fees, cost of distributing Prospectuses in preliminary and final form as well as any supplements thereto, and fees and disbursements of counsel for CPLP and all independent certified public accountants including the expenses of any “cold comfort” letters required by or incident to such performance and compliance, and other Persons retained by CPLP (all such expenses being herein called “Registration Expenses”) (but not including any underwriting discounts or commissions attributable to the sale of Registrable Securities or fees and expenses of counsel and any other advisor representing any party other than CPLP), shall be borne by CPLP. The Selling Holders shall bear the cost of all underwriting discounts and commissions associated with any underwritten sale of Registrable Securities and shall pay all such costs and expenses proportionately in relation to the number of Registrable Securities sold, including all fees and
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(b) The obligation of CPLP to bear the expenses described in Section 7(a) shall apply irrespective of whether a registration, once properly requested becomes effective or is withdrawn or suspended; provided, however, that Registration Expenses for any Registration Statement withdrawn solely at the request of the Holders (unless withdrawn following commencement of a Suspension Period pursuant to Section 4) shall be borne by the Holders.
Section 8. Indemnification.
(a) CPLP shall indemnify, to the fullest extent permitted by law, each Holder, its directors and officers, and each Person who controls a Holder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities, judgments, costs (including reasonable costs of investigation) and expenses (including reasonable attorneys’ fees) arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, Prospectus or free-writing prospectus or any amendment thereof or supplement thereto or arising out of or based upon any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are made in reliance and in conformity with information furnished in writing to CPLP by a Holder expressly for use therein. In connection with an Underwritten Offering in which a Holder participates conducted pursuant to a registration effected hereunder, CPLP shall indemnify each participating underwriter and each Person who controls such underwriter (within the meaning of the Securities Act) to the same extent as provided above with respect to the indemnification of the Holders.
(b) In connection with any Registration Statement in which a Holder is participating, such Holder shall furnish to CPLP in writing such information as CPLP reasonably requests for use in connection with any such Registration Statement or Prospectus, or amendment or supplement thereto, and shall indemnify, to the fullest extent permitted by law, CPLP, its officers and directors and each Person who controls CPLP (within the meaning of the Securities Act) against all losses, claims, damages, liabilities, judgments, costs (including reasonable costs of investigation) and expenses (including reasonable attorneys’ fees) arising out of or based upon any untrue or alleged untrue statement of material fact contained in the Registration Statement or Prospectus, or any amendment or supplement thereto, or arising out of or based upon any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that the same are made in reliance and in conformity with information furnished in writing to CPLP by or on behalf of such Holder expressly for use therein; provided, however, that the liability of each Selling Holder shall not be greater in amount than the dollar amount of the proceeds (net of any Selling Expenses) received by such Selling Holder from the sale of the Registrable Securities giving rise to such indemnification.
(c) Any Person entitled to indemnification hereunder shall (i) give prompt written notice to the indemnifying Person of any claim with respect to which it seeks indemnification and (ii) permit such indemnifying Person to assume the defense of such claim with counsel reasonably satisfactory to the indemnified Person. Failure so to notify the indemnifying Person
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(d) The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified Person or any officer, director or controlling Person of such indemnified Person and shall survive the transfer of securities and the Termination Date but only with respect to offers and sales of Registrable Securities made before the Termination Date or during the period following the Termination Date referred to in Section 6(h).
(e) If the indemnification provided for in or pursuant to this Section 8 is due in accordance with the terms hereof, but is held by a court to be unavailable or unenforceable in respect of any losses, claims, damages, liabilities or expenses referred to herein, then each applicable indemnifying Person, in lieu of indemnifying such indemnified Person, shall contribute to the amount paid or payable by such indemnified Person as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying Person on the one hand and of the indemnified Person on the other in connection with the statements or omissions which result in such losses, claims, damages, liabilities or expenses as well as any other relevant equitable considerations. The relative fault of the indemnifying Person on the one hand and of the indemnified Person on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying Person or by the indemnified Person, and by such
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(f) The provisions of this Section 8(f) shall be in addition to any other rights to indemnification or contribution that an indemnified party may have pursuant to law, equity, contract or otherwise.
Section 9. Securities Act Restrictions.
The Registrable Securities are restricted securities under the Securities Act and may not be offered or sold except pursuant to an effective registration statement or an available exemption from registration under the Securities Act. Accordingly, the Holders shall not, directly or through others, offer or sell any Registrable Securities except pursuant to a Registration Statement as contemplated herein or pursuant to Rule 144 or another exemption from registration under the Securities Act, if available. Prior to any transfer of Registrable Securities other than pursuant to an effective registration statement, the Holders shall notify CPLP of such transfer and CPLP may require the Holders to provide, prior to such transfer, such evidence that the transfer will comply with the Securities Act (including written representations or an opinion of counsel) as CPLP may reasonably request. CPLP may impose stop-transfer instructions with respect to any Registrable Securities that are to be transferred in contravention of this Agreement. Any certificates representing the Registrable Securities may bear a legend (and CPLP’s Unit Register may bear a notation) referencing the restrictions on transfer contained in this Agreement (and the Subscription Agreement), until such time as such securities have ceased to be (or are to be transferred in a manner that results in their ceasing to be) Registrable Securities. Subject to the provisions of this Section 9, CPLP will replace any such legended certificates with unlegended certificates promptly upon surrender of the legended certificates to CPLP or its designee, in order to facilitate a lawful transfer or at any time after such units cease to be Registrable Securities.
Section 10. Rule 144 Reporting. With a view to making available the benefits of certain rules and regulations of the SEC that may permit the sale of the Registrable Securities to the public without registration, CPLP agrees to use its commercially reasonable efforts to:
(i) make and keep public information regarding the Partnership available, as those terms are understood and defined in Rule 144 under the Securities Act, at all times from and after the date hereof;
(ii) file with the SEC in a timely manner all reports and other documents required of CPLP under the Securities Act and the Exchange Act at all times from and after the date hereof; and
(iii) so long as a Holder owns any Registrable Securities, furnish, unless otherwise available via EDGAR, to such Holder forthwith upon request a copy of the most recent annual or quarterly report of CPLP, and such other reports and documents so
-17-
filed as such Holder may reasonably request in availing itself of any rule or regulation of the SEC allowing such Holder to sell any such securities without registration.
Section 11. Transfers of Rights (a). The rights to cause CPLP to register Registrable Securities granted to the Holders under this Agreement may be transferred or assigned by any Holder to one or more transferees or assignees of Registrable Securities; provided, however, that such rights shall not be transferred (a) unless the transferee or assignee is an Affiliate of, and after such transfer or assignment continues to be an Affiliate of, such Holder, the amount of Registrable Securities transferred or assigned to such transferee or assignee shall represent at least $5.0 million of Registrable Securities (based on the Class B Unit Price), (b) CPLP shall be given written notice prior to any said transfer or assignment, stating the name and address of each such transferee or assignee and identifying the Registrable Securities with respect to which such registration rights are being transferred or assigned, and (c) each such transferee or assignee assumes in writing responsibility for its portion of the obligations of such Holder under this Agreement. Upon any such transfer, the transferee or assignee shall automatically have the rights so transferred or assigned and the Holder's obligations under this Agreement, and the rights not so transferred or assigned shall continue; provided, however, that if such transfer or assignment occurs after the filing and effectiveness of the Shelf Registration Statement, CPLP shall only be required to add such transferee or assignee to the existing Shelf Registration Statement if such transferee or assignee could be included without the filing of a post-effective amendment by the filing of a prospectus supplement and provided further that such transferee or assignee shall only have the right to participate in Piggyback Registrations if such transferee or assignee could be included without the filing of a post-effective amendment by the filing of a prospectus supplement to any registration statement used in connection therewith. Further, in no event shall CPLP have any obligation to file any shelf registration statement for any Selling Holder other than the Shelf Registration Statement. Each such transfer or assignment shall be effective when (but only when) the transferee or assignee has signed and delivered the written assumption of responsibility to CPLP. Notwithstanding any other provision of this Agreement, no Person who acquires securities transferred in violation of this Agreement or the Subscription Agreement, or who acquires securities that are not or upon acquisition cease to be Registrable Securities, shall have any rights under this Agreement with respect to such securities, and such securities shall not have the benefits afforded hereunder to Registrable Securities.
Section 12. Miscellaneous.
(a) Notices. Any notice, request, instruction or other document to be given hereunder by any party to the other will be in writing and will be deemed to have been duly given (a) on the date of delivery if delivered personally, or by facsimile, upon confirmation of receipt, or (b) on the second business day following the date of dispatch if delivered by a recognized next day courier service. All notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice.
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If to CPLP:
Capital Product Partners L.P.
c/o Capital Ship Management Corp.
3 Iassonos Street
Piraeus 18537
Greece
Attn: Ioannis E. Lazaridis
Facsimile: +30 210 428 4879
Email: i.lazaridis@capitalpplp.com
with a copy to:
Sullivan & Cromwell LLP
125 Broad Street
New York, New York 10004
Attention: Jay Clayton
Facsimile: (212) 291-9026
Email: claytonj@sullcrom.com
If to the Holders:
To the respective address listed on Schedule B hereof
with a copy to:
Baker Botts L.L.P.
98 San Jacinto Blvd., Suite 1500
Austin, Texas 78701
Attention: Laura L. Tyson
Facsimile: (512) 322-8377
Email: laura.tyson@bakerbotts.com
(b) No Waivers. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
(c) Assignment. Neither this Agreement nor any right, remedy, obligation nor liability arising hereunder or by reason hereof shall be assignable by any party hereto without the prior written consent of the other parties, and any attempt to assign any right, remedy, obligation or liability hereunder without such consent shall be void, except (i) an assignment, in the case of a merger or consolidation where such party is not the surviving entity, or a sale of substantially all of its assets, to the entity which is the survivor of such merger or consolidation or the purchaser in such sale or (ii) an assignment by a Holder to a Permitted Transferee in accordance with the terms hereof.
-19-
(d) No Third-Party Beneficiaries. Nothing contained in this Agreement, expressed or implied, is intended to confer upon any person or entity other than CPLP and the Holders (and any Permitted Transferee to which an assignment is made in accordance with this Agreement), any benefits, rights, or remedies (except as specified in Section 8 hereof).
(e) Governing Law; Submission to Jurisdiction; Waiver of Jury Trial, Etc. This Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed entirely within such State. Each of the parties hereto agrees (a) to submit to the non-exclusive personal jurisdiction of the State or Federal courts in the Borough of Manhattan, The City of New York, (b) that non-exclusive jurisdiction and venue shall lie in the State or Federal courts in the State of New York, and (c) that notice may be served upon such party at the address and in the manner set forth for such party in Section 12(a). To the extent permitted by applicable law, each of the parties hereto hereby unconditionally waives trial by jury in any legal action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
(f) Counterparts; Effectiveness. This Agreement may be executed in any number of counterparts (including by e-mail or facsimile) and by different parties hereto in separate counterparts, with the same effect as if all parties had signed the same document. All such counterparts shall be deemed an original, shall be construed together and shall constitute one and the same instrument. This Agreement shall become effective when each party hereto shall have received counterparts hereof signed by all of the other parties hereto.
(g) Entire Agreement. This Agreement contains the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes and replaces all other prior agreements, written or oral, among the parties hereto with respect to the subject matter hereof.
(h) Captions. The headings and other captions in this Agreement are for convenience and reference only and shall not be used in interpreting, construing or enforcing any provision of this Agreement.
(i) Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
(j) Independent Nature of Holder’s Obligations. The obligations of each Holder under this Agreement are several and not joint with the obligations of any other Holder, and no Holder shall be responsible in any way for the performance of the obligations of any other Holder under this Agreement. Nothing contained herein, and no action taken by any Holder pursuant thereto, shall be deemed to constitute the Holders as a partnership, an association,
-20-
(k) Recapitalization, Exchanges, Etc. Affecting the Units. The provisions of this Agreement shall apply to the full extent set forth herein with respect to any and all units of CPLP or any successor or assign of CPLP (whether by merger, consolidation, sale of assets or otherwise) that may be issued in respect of, in exchange for or in substitution of, the Registrable Securities, and shall be appropriately adjusted for combinations, unit splits, recapitalizations, pro rata distributions of units and the like occurring after the date of this Agreement.
(l) Aggregation of Registrable Securities. All Registrable Securities held or acquired by Persons who are Affiliates of one another shall be aggregated together for the purpose of determining the availability of any rights and applicability of any obligations under this Agreement.
(m) Specific Performance. Damages in the event of breach of this Agreement by a party hereto may be difficult, if not impossible, to ascertain, and it is therefore agreed that each such Person, in addition to and without limiting any other remedy or right it may have, will have the right to an injunction or other equitable relief in any court of competent jurisdiction, enjoining any such breach, and enforcing specifically the terms and provisions hereof, and each of the parties hereto hereby waives any and all defenses it may have on the ground of lack of jurisdiction or competence of the court to grant such an injunction or other equitable relief. The existence of this right will not preclude any such Person from pursuing any other rights and remedies at law or in equity that such Person may have.
(n) Grant of Subsequent Registration Rights. From and after the date hereof, CPLP shall not, without the prior written consent of the Holders of a majority of the Registrable Securities, enter into any agreement with any current or future holder of any securities of CPLP that would allow such current or future holder to require CPLP to include securities in any registration statement filed by CPLP on a basis other than pari passu with, or expressly subordinate to the rights of, the Holders of Registrable Securities hereunder with respect to priority of the rights set forth in Sections 2(b) and 2(c).
(o) Amendments. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given without the prior written consent of CPLP and the Holders holding a majority of the then outstanding Registrable Securities; provided, however, that no such amendment shall materially and adversely affect the rights of any Holder hereunder without the consent of such Holder.
[Signature Pages Follow]
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IN WITNESS WHEREOF, this Registration Rights Agreement has been duly executed by each of the parties hereto as of the date first written above.
|
CAPITAL PRODUCT PARTNERS L.P.
|
||
|
By:
|
/s/ Ioannis E. Lazaridis | |
|
Name:
|
Ioannis E. Lazaridis | |
|
Title:
|
Authorized Person
|
|
[Signature Page to Registration Rights Agreement]
|
KAYNE ANDERSON ENERGY TOTAL RETURN FUND, INC.
|
|
| By: KA Fund Advisors, LLC, as Manager | |
|
By: /s/ James C. Baker
|
|
|
Name: James C. Baker
|
|
|
Title: Managing Director
|
|
[Signature Page to Registration Rights Agreement]
|
OAKTREE FF INVESTMENT FUND, L.P. - CLASS B
|
|
| By: Oaktree FF Investment Fund GP, L.P., its General Partner | |
| By: Oaktree FF Investment Fund GP Ltd., its General Partner | |
| By: Oaktree Capital Management, L.P., its Director | |
|
By: /s/ Jennifer Box
|
|
|
Name: Jennifer Box
|
|
|
Title: Vice President
|
|
| By: /s/ Kenneth Liang | |
| Name: Kenneth Liang | |
| Title: Managing Director | |
|
OAKTREE VALUE OPPORTUNITIES FUND, L.P.
|
|
| By: Oaktree Value Opportunities Fund, GP, L.P., its General Partner | |
| By: Oaktree Value Opportunities Fund GP Ltd., its General Partner | |
| By: Oaktree Capital Management, L.P., its Director | |
|
By: /s/ Jennifer Box
|
|
|
Name: Jennifer Box
|
|
|
Title: Vice President
|
|
| By: /s/ Kenneth Liang | |
| Name: Kenneth Lianag | |
| Title: Managing Director | |
[Signature Page to Registration Rights Agreement]
|
THE CUSHING MLP PREMIER FUND
|
|
| By: Cushing MLP Asset Management, L.P., its investment advisor | |
| By: Swank Capital LLC, its general partner | |
|
By: /s/ Jerry V. Swank
|
|
|
Name: Jerry V. Swank
|
|
|
Title: Managing Member
|
|
|
THE CUSHING MLP TOTAL RETURN FUND
|
|
| By: Cushing MLP Asset Management, LP, its investment advisor | |
| By: Swank Capital LLC, its general partner | |
|
By: /s/ Jerry V. Swank
|
|
|
Name: Jerry V. Swank
|
|
|
Title: Managing Member
|
|
|
SWANK MLP CONVERGENCE FUND LP
|
|
| By: Cushing MLP Asset Management, LP, its investment advisor | |
| By: Swank Capital LLC, its general partner | |
|
By: /s/ Jerry V. Swank
|
|
|
Name: Jerry V. Swank
|
|
|
Title: Managing Member
|
|
[Signature Page to Registration Rights Agreement]
| SPRING CREEK CAPITAL, LLC. | |
|
By: /s/ Brock Nelson
|
|
|
Name: Brock Nelson
|
|
|
Title: President
|
|
[Signature Page to Registration Rights Agreement]
|
SALIENT MLP & ENERGY INFRASTRUCTURE FUND, INC.
|
|
| By: Salient Capital Advisors, LLC | |
|
By: /s/ Gregory A. Reid
|
|
|
Name: Gregory A. Reid
|
|
|
Title: President
|
|
|
SALIENT MLP FUND, L.P.
|
|
| By: Salient Capital Advisors, LLC | |
|
By: /s/ Gregory A. Reid
|
|
|
Name: Gregory A. Reid
|
|
|
Title: President
|
|
|
SALIENT MLP TE FUND, L.P.
|
|
| By: Salient Capital Advisors, LLC | |
|
By: /s/ Gregory A. Reid
|
|
|
Name: Gregory A. Reid
|
|
|
Title: President
|
|
[Signature Page to Registration Rights Agreement]
|
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
|
|
|
By: /s/ Christopher P. Swain
|
|
|
Name: Christopher P. Swain
|
|
|
Title: Its Authorized Representative
|
|
|
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY FOR ITS GROUP ANNUITY SEPARATE ACCOUNT
|
|
|
By: /s/ Christopher P. Swain
|
|
|
Name: Christopher P. Swain
|
|
|
Title: Its Authorized Representative
|
|
[Signature Page to Registration Rights Agreement]
Schedule A – Holder Name; Notice and Contact Information; Opt-Out
|
Purchaser
|
Purchased Units
|
Opt-Out
|
||
|
Kayne Anderson Energy Total Return Fund, Inc.
|
3,333,333
|
No
|
||
|
Oaktree Value Opportunities Fund, L.P.
|
2,222,222
|
No
|
||
|
Oaktree FF Investment Fund, L.P. - Class B
|
1,111,111
|
No
|
||
|
The Cushing MLP Premier Fund
|
1,111,111
|
No
|
||
|
The Cushing MLP Total Return Fund
|
1,111,111
|
No
|
||
|
Swank MLP Convergence Fund LP
|
111,111
|
No
|
||
|
Spring Creek Capital, LLC
|
833,333
|
No
|
||
|
Salient MLP & Energy Infrastructure Fund
|
666,667
|
No
|
||
|
Salient MLP Fund, L.P.
|
377,778
|
No
|
||
|
Salient MLP TE Fund, L.P.
|
66,667
|
No
|
||
|
The Northwestern Mutual Life Insurance Company
|
533,333
|
No
|
||
|
The Northwestern Mutual Life Insurance Company for its Group Annuity Separate Account
|
22,222
|
No
|
Schedule B – Notice and Contact Information
|
Purchaser
|
Address
|
|
Kayne Anderson Energy Total Return Fund, Inc.
|
Kayne Anderson Capital Advisors, L.P.
717 Texas, Suite 3100
Houston, Texas 77002
Attention: James Baker
Facsimile: (713) 655-7359
jbaker@kaynecapital.com
|
|
Oaktree Value Opportunities Fund, L.P.
Oaktree FF Investment Fund, L.P. - Class B
|
Oaktree Capital Management, L.P.
333 S. Grand Ave., 29th Floor
Los Angeles, California 90071
Attention: Jennifer Box
Facsimile: (213) 830-8575
jbox@oaktreecapital.com
|
|
The Cushing MLP Premier Fund
The Cushing MLP Total Return Fund
Swank MLP Convergence Fund LP
|
Swank Capital, LLC
8117 Preston Road, Suite 440
Dallas, Texas 75225
Attention: Daniel L. Spears
Facsimile: (214) 219-2353
dspears@swankcapital.com
with a copy to:
Swank Capital, LLC
8117 Preston Road, Suite 440
Dallas, Texas 75225
Attention: Barry Greenberg
Facsimile: (214) 219-2353
bgreenberg@swankcapital.com
|
|
Salient MLP & Energy Infrastructure Fund
Salient MLP Fund, L.P.
Salient MLP TE Fund, L.P.
|
Salient MLP Fund, L.P.
4265 San Felipe, Suite 800
Houston, TX 77027
Attn: Salient Capital Advisor LLC - MLP Fund Operations
Facsimile: (713) 993-4698
greid@salientpartners.com
mhibbetts@salientpartners.com
pcanlas@salientpartners.com
|
|
Spring Creek Capital, LLC
|
Spring Creek Capital, LLC
4111 East 37th St. North
Wichita, Kansas 67212
Attention: Brock Nelson
Facsimile: (316) 828-7101
nelsonb@kochind.com
|
|
The Northwestern Mutual Life Insurance Company
The Northwestern Mutual Life Insurance Company for its Group Annuity Separate Account
|
The Northwestern Mutual Life Insurance Company
720 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: Sean Twohig
Facsimile: (414) 665-7124
seantwohig@northwesternmutual.com
with a copy to:
The Northwestern Mutual Life Insurance Company
720 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: Abim Kolawole, Esq.
Facsimile: (414) 625-1748
abimkolawole@northwesternmutual.com
|
EXHIBIT IV
CAPITAL PRODUCT PARTNERS L.P. ANNOUNCES COMPLETION OF $140 MILLION OF CONVERTIBLE PREFERRED UNITS AND AMENDMENTS TO CREDIT FACILITIES
ATHENS, Greece, May 23, 2012 -- Capital Product Partners L.P. (the “Partnership”) (NASDAQ: CPLP), an international owner of modern double-hull tankers, announced today the completion of its issuance of $140 million of Class B Convertible Preferred Units (“Class B Units”). The Partnership also executed amendments to its three credit facilities and repaid debt of $149.6 million. The execution of the amendments provides for a deferral of scheduled amortization payments under each of the Partnership’s credit facilities until March 31, 2016.
Evercore Partners acted as exclusive placement agent in connection with the transaction. CPLP was advised by Sullivan & Cromwell LLP and G.E. Bairactaris & Partners.
Neither the Class B Units nor the common units into which they are convertible have been registered under the Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and they may not be offered or sold in the United States absent a registration statement or exemption from registration. This notice is issued pursuant to Rule 135c under the Securities Act of 1933 and shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities in any state in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state.
Forward-Looking Statements:
The statements in this press release that are not historical facts, including our scheduled amortization payments, may be forward-looking statements (as such term is defined in Section 21E of the Securities Exchange Act of 1934, as amended). These forward-looking statements involve risks and uncertainties that could cause the stated or forecasted results to be materially different from those anticipated. Unless required by law, we expressly disclaim any obligation to update or revise any of these forward-looking statements, whether because of future events, new information, a change in our views or expectations, to conform them to actual results or otherwise. We assume no responsibility for the accuracy and completeness of the forward-looking statements. We make no prediction or statement about the performance of our common units.
About Capital Product Partners L.P.
Capital Product Partners L.P. (NASDAQ: CPLP), a Marshall Islands master limited partnership, is an international owner of modern double-hull tankers. The Partnership currently owns 25 vessels, including two VLCCs (Very Large Crude Carriers), four Suezmax crude oil tankers, 18 modern MR (Medium Range) tankers and one Capesize bulk carrier. All of its vessels are under period charters to BP Shipping Limited, Overseas Shipholding Group, Petrobras, Arrendadora Ocean Mexicana, S.A. de C.V., Cosco Bulk Carrier Co. Ltd and Capital Maritime & Trading Corp.
For more information about the Partnership, please visit our website: www.capitalpplp.com.
CPLP-F
Contact Details:
|
Capital GP L.L.C.
|
Investor Relations / Media
|
|
Ioannis Lazaridis, CEO and CFO
|
Matthew Abenante
|
|
+30 (210) 4584 950
|
Capital Link, Inc. (New York)
|
|
E-mail: i.lazaridis@capitalpplp.com
|
Tel. +1-212-661-7566
|
|
E-mail: cplp@capitallink.com
|
|
|
Capital Maritime & Trading Corp.
|
|
|
Jerry Kalogiratos, Finance Director
|
|
|
+30 (210) 4584 950
|
|
|
j.kalogiratos@capitalpplp.com
|
|