Common use of Distributions of Available Cash from Capital Surplus Clause in Contracts

Distributions of Available Cash from Capital Surplus. Available Cash that is deemed to be Capital Surplus pursuant to the provisions of Section 6.3(a) shall, subject to Section 18-607 of the Delaware Act, be distributed, unless the provisions of Section 6.3 require otherwise, be distributed as follows: (a) 100% to the holders of Common Units, Pro Rata, 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; (b) 100% to the holders of Common Units, Pro Rata, until there has been distributed in respect of each Common Unit then Outstanding an amount equal to the Cumulative Common Unit Arrearage. Thereafter, all Available Cash shall be distributed as if it were Operating Surplus and shall be distributed in accordance with Section 6.4. (c) 100% to the holders of Class D Units, Pro Rata, until a hypothetical holder of a Class D Unit acquired on the Closing Date has received with respect to such Class D Unit, during the period since the date Class D Units were originally issued through such date, distributions of Available Cash that are deemed to be Capital Surplus in an aggregate amount equal to the Initial Unit Price; (d) 100% to the holders of Class D Units, Pro Rata, until there has been distributed in respect of each Class D Unit then Outstanding an amount equal to the Cumulative Class D Unit Arrearage; and (e) Thereafter, all Available Cash shall be distributed as if it were Operating Surplus and shall be distributed in accordance with Section 6.4. 12. Article VI is hereby amended to add a new Section 6.9 as follows:

Distributions of Available Cash from Capital Surplus. Available Cash that is deemed to be Capital Surplus pursuant to the provisions of Section 6.3(a) shall, subject to Section 1817-607 of the Delaware Act, be distributed, unless the provisions of Section 6.3 require otherwise, be distributed as follows: (a) 100First, pari passu (A) to the holders of Class B Preferred Units and Class D Preferred Units, Pro Rata, until (i) a hypothetical holder of a Class B Preferred Unit acquired on the Class B Closing Date has received with respect to such Class B Preferred Unit, during the period since the Class B Closing Date through such distribution date, distributions of Available Cash that are deemed to be Capital Surplus in an aggregate amount equal to the Face Value of the Class B Preferred Units set forth in the Preferred Class B Certificate of Designation and (ii) a hypothetical holder of a Class D Preferred Unit acquired on the Class D Closing Date has received with respect to such Class D Preferred Unit, during the period since the Class D Closing Date through such distribution date, distributions of Available Cash that are deemed to be Capital Surplus in an aggregate amount equal to the Face Value of the Class D Preferred Units set forth in the Preferred Class D Certificate of Designation, and (B) to the holders of Class A Units, Pro Rata, in an amount equal to 2.0202% of the amounts distributed with respect to the Class B Preferred Units pursuant to clause (A) above; (b) Second, 2% to the holders of Class A Units, Pro Rata, and 98% to the holders of Class C Preferred Units, Pro Rata, until a hypothetical holder of a Class C Preferred Unit acquired on the Class C Closing Date has received with respect to such Class C Preferred Unit, during the period since the Class C Closing Date through such distribution date, distributions of Available Cash that are deemed to be Capital Surplus in an aggregate amount equal to the Face Value of the Class C Preferred Units set forth in the Preferred Class C Certificate of Designation; (c) Third, 2% to the holders of Class A Units, Pro Rata, and 98% to the holders of Common Units, Pro Rata, 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; (b) 100% to the holders of Common Units, Pro Rata, until there has been distributed in respect of each Common Unit then Outstanding an amount equal to the Cumulative Common Unit Arrearage. Thereafter, all Available Cash shall be distributed as if it were Operating Surplus and shall be distributed in accordance with Section 6.4. (c) 100% to the holders of Class D Units, Pro Rata, until a hypothetical holder of a Class D Unit acquired on the Closing Date has received with respect to such Class D Unit, during the period since the date Class D Units were originally issued through such distribution date, distributions of Available Cash that are deemed to be Capital Surplus in an aggregate amount equal to the Initial Unit Price; (d) 100% to the holders of Class D UnitsFourth, Pro Rata, until there has been distributed in respect of each Class D Unit then Outstanding an amount equal to the Cumulative Class D Unit Arrearage; and (e) Thereafter, all any remaining Available Cash shall be distributed as if it were Operating Surplus and shall be distributed in accordance with Section 6.4. 127. Article VI Section 12.4(c) of the Limited Partnership Agreement is hereby amended and restated in its entirety to add a new Section 6.9 read as follows:

Distributions of Available Cash from Capital Surplus. Available Cash that is deemed to be Capital Surplus pursuant to the provisions of Section 6.3(a) shall, subject to Section 1817-607 of the Delaware Act, be distributed, unless the provisions of Section 6.3 require otherwise, be (i) first, (A) to the General Partner in accordance with its Percentage Interest and (B) to all Unitholders holding Series A Preferred Units, Pro Rata, a percentage equal to 100% less the General Partner's Percentage Interest, until there has been distributed as follows: in respect of each Series A Preferred Unit then Outstanding an amount equal to the Series A Cumulative Distribution Arrearage, and (aii) thereafter, 100% to the holders of Common Units, Pro RataGeneral Partner and all Unitholders in accordance with their respective Fully-Diluted 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; . Available Cash that is deemed to be Capital Surplus shall then be distributed (bA) 100% to the holders of General Partner in accordance with its Percentage Interest and (B) to all Unitholders holding Common Units, Pro Rata, a percentage equal to 100% less the General Partner's in Percentage Interest, until there has been distributed in respect of each Common Unit then Outstanding an amount equal to the Cumulative Common Unit Arrearage. Thereafter, all Available Cash shall be distributed as if it were Operating Surplus and shall be distributed in accordance with Section 6.4. (c) 100% to the holders of Class D Units, Pro Rata, until a hypothetical holder of a Class D Unit acquired on the Closing Date has received with respect to such Class D Unit, during the period since the date Class D Units were originally issued through such date, distributions of Available Cash that are deemed to be Capital Surplus in an aggregate amount equal to the Initial Unit Price; (d) 100% to the holders of Class D Units, Pro Rata, until there has been distributed in respect of each Class D Unit then Outstanding an amount equal to the Cumulative Class D Unit Arrearage; and (e) Thereafter, all Available Cash shall be distributed as if it were Operating Surplus and shall be distributed in accordance with Section 6.4. 12. Article VI is hereby amended to add a new Section 6.9 as follows:

Distributions of Available Cash from Capital Surplus. Available Cash that is deemed to be Capital Surplus pursuant to the provisions of Section 6.3(a) shall, subject to Section 1817-607 of the Delaware Act, be distributed, unless the provisions of Section 6.3 require otherwise, be distributed as follows: : (aA) to the General Partner in accordance with its Percentage Interest; (B) to all Unitholders holding Class B Units, their Pro Rata share of a percentage equal to (x) 100% less the General Partner’s Percentage Interest, multiplied by (y) a fraction, the numerator of which is the aggregate Unrecovered Initial Unit Price for all Class B Units and the denominator of which is the aggregate Unrecovered Initial Unit Price for all Limited Partner Units and (C) to the holders of all Unitholders holding Common Units and Subordinated Units, their Pro RataRata share of a percentage equal to 100% less the sum of the percentages applicable to subclauses (A) and (B) of this sentence, 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. Available Cash that is deemed to be Capital Surplus shall then be distributed as follows: (a) First, (i) to the General Partner in accordance with its Percentage Interest and (ii) to all Unitholders holding Common Units or Class B Units, their Pro Rata share of a percentage equal to 100% less the General Partner’s Percentage Interest, until there has been distributed in respect of each Class B Unit and Common Unit then Outstanding an amount equal to the Cumulative Class B Unit Arrearage; (b) 100% Second, (i) to the holders of General Partner in accordance with its Percentage Interest and (ii) to all Unitholders holding Common Units, their Pro RataRata share of a percentage equal to 100% less the General Partner’s Percentage Interest, until there has been distributed in respect of each Common Unit then Outstanding (including distributions pursuant to clause (a) above) an amount equal to the Cumulative Common Unit Arrearage. Thereafter, all Available Cash shall be distributed as if it were Operating Surplus and shall be distributed in accordance with Section 6.4. (c) 100% to the holders of Class D Units, Pro Rata, until a hypothetical holder of a Class D Unit acquired on the Closing Date has received with respect to such Class D Unit, during the period since the date Class D Units were originally issued through such date, distributions of Available Cash that are deemed to be Capital Surplus in an aggregate amount equal to the Initial Unit Price; (d) 100% to the holders of Class D Units, Pro Rata, until there has been distributed in respect of each Class D Unit then Outstanding an amount equal to the Cumulative Class D Unit Arrearage; and (ec) Thereafter, all Available Cash shall be distributed as if it were Operating Surplus and shall be distributed in accordance with Section 6.4. 1213. Article VI Section 6.6 is hereby amended to add a new Section 6.9 and restated as follows:

Distributions of Available Cash from Capital Surplus. Available Cash that is deemed to be Capital Surplus pursuant to the provisions of Section 6.3(a6.1(a) shall, subject to Section 18-607 51 of the Delaware Xxxxxxxx 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 6.3 6.1 require otherwise, be distributed as follows: (ai) first, 100% to the holders of Common 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 Redemption 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; (b) 100% to ; provided, that for the holders avoidance of Common Unitsdoubt, Pro Rata, until there has been any amounts of Operating Surplus not distributed in respect of each Common Unit then Outstanding an amount equal to the Cumulative Common Unit Arrearage. Thereafter, all as Available Cash shall not be distributed as if it were Operating Surplus and shall be distributed in accordance with Section 6.4. (c) 100% to the holders of Class D Units, Pro Rata, until a hypothetical holder of a Class D Unit acquired on the Closing Date has received with respect to such Class D Unit, during the period since the date Class D Units were originally issued through such date, distributions of Available Cash that are deemed to be Capital Surplus in an aggregate amount equal to the Initial Unit Price; (d) 100% to the holders of Class D UnitsSurplus, Pro Rata, until there has been distributed in respect of each Class D Unit then Outstanding an amount equal to the Cumulative Class D Unit Arrearage; and (e) Thereafter, all Available Cash shall be distributed as if it were Operating Surplus and shall be distributed in accordance with Section 6.4carried over to subsequent Quarters as Operating Surplus. 12. Article VI 1.8 Schedule I to the LP Agreement is hereby replaced in its entirety by Schedule I attached hereto as Schedule I. 1.9 The LP Agreement is hereby amended to add a new Section 6.9 Annex A and Schedule II attached hereto as follows:Annex A and Schedule II, respectively, to the LP Agreement.

Distributions of Available Cash from Capital Surplus. Available Cash that is deemed to be Capital Surplus pursuant to the provisions of Section 6.3(a) shall, subject to Section 1817-607 of the Delaware Act, be distributed, unless the provisions of Section 6.3 require otherwise, be distributed as follows: : (aA) to the General Partner in accordance with its Percentage Interest; (B) to all Unitholders holding Class B Units, their Pro Rata share of a percentage equal to (x) 100% less the General Partner’s Percentage Interest, multiplied by (y) a fraction, the numerator of which is the aggregate Unrecovered Initial Unit Price for all Class B Units and the denominator of which is the aggregate Unrecovered Initial Unit Price for all Limited Partner Units and (C) to the holders of all Unitholders holding Common Units and Subordinated Units, their Pro RataRata share of a percentage equal to 100% less the sum of the percentages applicable to subclauses (A) and (B) of this sentence, 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. Available Cash that is deemed to be Capital Surplus shall then be distributed as follows: (a) First, (i) to the General Partner in accordance with its Percentage Interest and (ii) to all Unitholders holding Common Units or Class B Units, their Pro Rata share of a percentage equal to 100% less the General Partner’s Percentage Interest, until there has been distributed in respect of each Class B Unit and Common Unit then Outstanding an amount equal to the Cumulative Class B Unit Arrearage; (b) 100% Second, (i) to the holders of General Partner in accordance with its Percentage Interest and (ii) to all Unitholders holding Common Units, their Pro RataRata share of a percentage equal to 100% less the General Partner’s Percentage Interest, until there has been distributed in respect of each Common Unit then Outstanding (including distributions pursuant to clause (a) above) an amount equal to the Cumulative Common Unit Arrearage. Thereafter, all Available Cash shall be distributed as if it were Operating Surplus and shall be distributed in accordance with Section 6.4. (c) 100% to the holders of Class D Units, Pro Rata, until a hypothetical holder of a Class D Unit acquired on the Closing Date has received with respect to such Class D Unit, during the period since the date Class D Units were originally issued through such date, distributions of Available Cash that are deemed to be Capital Surplus in an aggregate amount equal to the Initial Unit Price; (d) 100% to the holders of Class D Units, Pro Rata, until there has been distributed in respect of each Class D Unit then Outstanding an amount equal to the Cumulative Class D Unit Arrearage; and (ec) Thereafter, all Available Cash shall be distributed as if it were Operating Surplus and shall be distributed in accordance with Section 6.4. 12. Article VI is hereby amended to add a new Section 6.9 as follows:

Distributions of Available Cash from Capital Surplus. Available Cash that is deemed to be Capital Surplus pursuant to the provisions of Section 6.3(a) shall, subject to Section 1817-607 of the Delaware Act, be distributed, unless the provisions of Section 6.3 require otherwise, be distributed as follows: (a) 100% to all Unitholders and the holders of Common UnitsGeneral Partner, Pro Rata, until a hypothetical holder of a an Initial 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; . Available Cash that is deemed to be Capital Surplus shall then be distributed (bA) 100% to the holders of General Partner in accordance with its Percentage Interest and (B) to all Unitholders holding Common Units, Pro Rata, a percentage equal to 100% less the General Partner’s Percentage Interest, until there has been distributed in respect of each Common Unit then Outstanding an amount equal to the Cumulative Common Unit Arrearage. Thereafter, all Available Cash shall be distributed as if it were Operating Surplus and shall be distributed in accordance with Section 6.4. For purposes of applying this Section 6.5, each Senior Subordinated Unit, each Senior Subordinated Series C Unit and each Senior Subordinated Series D Unit then Outstanding shall be treated as if it had converted into a Common Unit.” (cy) 100% The last sentence of Section 7.9(b) is hereby amended to read as follows: “No borrowing by any Group Member or the approval thereof by the General Partner shall be deemed to constitute a breach of any duty of the General Partner to the holders Partnership or the Limited Partners by reason of Class D Unitsthe fact that the purpose or effect of such borrowing is directly or indirectly to enable distributions to the General Partner or its Affiliates (including in their capacities as Limited Partners) to exceed the General Partner’s Percentage Interest of the total amount distributed to all partners.” (z) Section 11.3(c) is hereby amended and restated in its entirety to read as follows: “If a successor General Partner is elected in accordance with the terms of Section 11.1 or 11.2 and the option described in Section 11.3(a) is not exercised by the party entitled to do so, Pro Ratathe successor General Partner shall, until a hypothetical holder at the effective date of a Class D Unit acquired on its admission to the Closing Date has received with respect Partnership, contribute to such Class D Unit, during the period since Partnership cash in the date Class D Units were originally issued through such date, distributions of Available Cash that are deemed to be Capital Surplus in an aggregate amount equal to the Initial Unit Price; product of (dx) the quotient obtained by dividing (A) the Percentage Interest of the General Partner Interest of the Departing Partner by (B) a percentage equal to 100% less the Percentage Interest of the General Partner Interest of the Departing Partner and (y) the Net Agreed Value of the Partnership’s assets on such date. In such event, such successor General Partner shall, subject to the holders following sentence, be entitled to its Percentage Interest of Class D Unitsall Partnership allocations and distributions to which the Departing Partner was entitled. In addition, Pro Ratathe successor General Partner shall cause this Agreement to be amended to reflect that, until there has been distributed from and after the date of such successor General Partner’s admission, the successor General Partner’s interest in respect of each Class D Unit then Outstanding an amount equal to the Cumulative Class D Unit Arrearage; and (e) Thereafter, all Available Cash Partnership distributions and allocations shall be distributed as if it were Operating Surplus and shall be distributed in accordance with Section 6.4its Percentage Interest. 12. Article VI is hereby amended to add a new Section 6.9 as follows:”

Distributions of Available Cash from Capital Surplus. Available Cash that is deemed to be Capital Surplus pursuant to the provisions of Section 6.3(a6.1(a) shall, subject to Section 18-607 51 of the Delaware Xxxxxxxx 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 6.3 6.1 require otherwise, be distributed as follows: (ai) first, 100% to the holders of Common 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; (b) 100% to ; provided, that for the holders avoidance of Common Unitsdoubt, Pro Rata, until there has been any amounts of Operating Surplus not distributed in respect of each Common Unit then Outstanding an amount equal to the Cumulative Common Unit Arrearage. Thereafter, all as Available Cash shall not be distributed as if it were Operating Surplus deemed to be Capital Surplus, and shall be distributed 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 6.4.7.6. The successors of the initial members of the Board of Directors shall be appointed or elected, as the case may be, as follows: (ci) 100% to 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 D B Convertible Preferred Units, Pro Rata, until a hypothetical holder of a Class D Unit acquired on the Closing Date has received with respect to such Class D Unit, during the period since the date Class D Units were originally issued through such date, distributions of Available Cash that are deemed to be Capital Surplus in an aggregate amount equal to the Initial Unit Price; (d) 100% to the holders of Class D Units, Pro Rata, until there has been distributed in respect of each Class D Unit then Outstanding an amount equal to the Cumulative Class D Unit Arrearage; and (eiii) Thereafter, all Available Cash The Class I Elected Director shall be distributed as if it were Operating Surplus and elected at the 2008 Annual Meeting, one Class II Elected Director shall be distributed elected at the 2009 Annual Meeting and one Class II Elected Director shall be elected in accordance 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 Section 6.4each 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. 12. Article VI 1.9 Section 7.4 of the LP Agreement is hereby amended to add a new Section 6.9 replaced in its entirety as follows:

Distributions of Available Cash from Capital Surplus. Available Cash that is deemed to be Capital Surplus pursuant to the provisions of Section 6.3(a6.1(a) shall, subject to Section 18-607 51 of the Delaware Xxxxxxxx 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 6.3 6.1 require otherwise, be distributed as follows: (ai) first, 100% to the holders of Common 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 Redemption 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; (b) 100% to ; provided, that for the holders avoidance of Common Unitsdoubt, Pro Rata, until there has been any amounts of Operating Surplus not distributed in respect of each Common Unit then Outstanding an amount equal to the Cumulative Common Unit Arrearage. Thereafter, all as Available Cash shall not be distributed as if it were Operating Surplus and shall be distributed in accordance with Section 6.4. (c) 100% to the holders of Class D Units, Pro Rata, until a hypothetical holder of a Class D Unit acquired on the Closing Date has received with respect to such Class D Unit, during the period since the date Class D Units were originally issued through such date, distributions of Available Cash that are deemed to be Capital Surplus in an aggregate amount equal to the Initial Unit Price; (d) 100% to the holders of Class D UnitsSurplus, Pro Rata, until there has been distributed in respect of each Class D Unit then Outstanding an amount equal to the Cumulative Class D Unit Arrearage; and (e) Thereafter, all Available Cash shall be distributed as if it were Operating Surplus and shall be distributed in accordance with Section 6.4carried over to subsequent Quarters as Operating Surplus. 12. Article VI 1.8 Schedule I to the LP Agreement is hereby replaced in its entirety by Schedule I attached hereto as Schedule I. 1.9 The LP Agreement is hereby amended to add a new Section 6.9 Annex A and Schedule II attached hereto as follows:Annex A and Schedule II, respectively, to the LP Agreement.

Distributions of Available Cash from Capital Surplus. Available Cash that is deemed to be Capital Surplus pursuant to the provisions of Section 6.3(a6.1(a) shall, subject to Section 18-607 51 of the Delaware Xxxxxxxx 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 6.3 6.1 require otherwise, be distributed as follows: (ai) first, 100% to the holders of Common 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; (b) 100% to ; provided, that for the holders avoidance of Common Unitsdoubt, Pro Rata, until there has been any amounts of Operating Surplus not distributed in respect of each Common Unit then Outstanding an amount equal to the Cumulative Common Unit Arrearage. Thereafter, all as Available Cash shall not be distributed as if it were Operating Surplus deemed to be Capital Surplus, and shall be distributed 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 6.4.7.6. The successors of the initial members of the Board of Directors shall be appointed or elected, as the case may be, as follows: (ci) 100% to 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 D B Convertible Preferred Units, Pro Rata, until a hypothetical holder of a Class D Unit acquired on the Closing Date has received with respect to such Class D Unit, during the period since the date Class D Units were originally issued through such date, distributions of Available Cash that are deemed to be Capital Surplus in an aggregate amount equal to the Initial Unit Price; (d) 100% to the holders of Class D Units, Pro Rata, until there has been distributed in respect of each Class D Unit then Outstanding an amount equal to the Cumulative Class D Unit Arrearage; and (eiii) Thereafter, all Available Cash The Class I Elected Director shall be distributed as if it were Operating Surplus and elected at the 2008 Annual Meeting, one Class II Elected Director shall be distributed elected at the 2009 Annual Meeting and one Class II Elected Director shall be elected in accordance 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 Section 6.4each 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. 12. Article VI 1.9 Section 7.4 of the LP Agreement is hereby amended to add a new Section 6.9 replaced in its entirety as follows:

Distributions of Available Cash from Capital Surplus. Available Cash that is deemed to be Capital Surplus pursuant to the provisions of Section 6.3(a) shall, subject to Section 1817-607 of the Delaware Act, be distributed, unless the provisions of Section 6.3 require otherwise, be distributed as follows: (a) 100First, pari passu (A) to the holders of Class B Preferred Units, Class D Preferred Units and Class E Preferred Units, Pro Rata, until (i) a hypothetical holder of a Class B Preferred Unit acquired on the Class B Closing Date has received with respect to such Class B Preferred Unit, during the period since the Class B Closing Date through such distribution date, distributions of Available Cash that are deemed to be Capital Surplus in an aggregate amount equal to the Face Value of the Class B Preferred Units set forth in the Preferred Class B Certificate of Designation, (ii) a hypothetical holder of a Class D Preferred Unit acquired on the Class D Closing Date has received with respect to such Class D Preferred Unit, during the period since the Class D Closing Date through such distribution date, distributions of Available Cash that are deemed to be Capital Surplus in an aggregate amount equal to the Face Value of the Class D Preferred Units set forth in the Preferred Class D Certificate of Designation and (iii) a hypothetical holder of a Class E Preferred Unit acquired on the Class E Closing Date has received with respect to such Class E Preferred Unit, during the period since the Class E Closing Date through such distribution date, distributions of Available Cash that are deemed to be Capital Surplus in an aggregate amount equal to the Face Value of the Class E Preferred Units set forth in the Preferred Class E Certificate of Designation, and (B) to the holders of Class A Units, Pro Rata, in an amount equal to 2.0202% of the amounts distributed with respect to the Class B Preferred Units pursuant to clause (A) above; (b) Second, 2% to the holders of Class A Units, Pro Rata, and 98% to the holders of Class C Preferred Units, Pro Rata, until a hypothetical holder of a Class C Preferred Unit acquired on the Class C Closing Date has received with respect to such Class C Preferred Unit, during the period since the Class C Closing Date through such distribution date, distributions of Available Cash that are deemed to be Capital Surplus in an aggregate amount equal to the Face Value of the Class C Preferred Units set forth in the Preferred Class C Certificate of Designation; (c) Third, 2% to the holders of Class A Units, Pro Rata, and 98% to the holders of Common Units, Pro Rata, 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; (b) 100% to the holders of Common Units, Pro Rata, until there has been distributed in respect of each Common Unit then Outstanding an amount equal to the Cumulative Common Unit Arrearage. Thereafter, all Available Cash shall be distributed as if it were Operating Surplus and shall be distributed in accordance with Section 6.4. (c) 100% to the holders of Class D Units, Pro Rata, until a hypothetical holder of a Class D Unit acquired on the Closing Date has received with respect to such Class D Unit, during the period since the date Class D Units were originally issued through such distribution date, distributions of Available Cash that are deemed to be Capital Surplus in an aggregate amount equal to the Initial Unit Price; (d) 100% to the holders of Class D UnitsFourth, Pro Rata, until there has been distributed in respect of each Class D Unit then Outstanding an amount equal to the Cumulative Class D Unit Arrearage; and (e) Thereafter, all any remaining Available Cash shall be distributed as if it were Operating Surplus and shall be distributed in accordance with Section 6.4. 12. Article VI is hereby amended to add a new Section 6.9 as follows:

Distributions of Available Cash from Capital Surplus. Available Cash that is deemed to be Capital Surplus pursuant to the provisions of Section 6.3(a) shall, subject to Section 1817-607 of the Delaware Act, be distributed, unless the provisions of Section 6.3 require otherwise, be distributed as follows: (a) 100First, 2% to the holders of Class A Units, Pro Rata, and 98% to the holders of Class B Preferred Units, Pro Rata, until a hypothetical holder of a Class B Preferred Unit acquired on the Class B Closing Date has received with respect to such Class B Preferred Unit, during the period since the Class B Closing Date through such date, distributions of Available Cash that are deemed to be Capital Surplus in an aggregate amount equal to the Face Value of the Class B Preferred Units set forth in the Preferred Class B Certificate of Designation; (b) Second, 2% to the holders of Class A Units, Pro Rata, and 98% to the holders of Class C Preferred Units, Pro Rata, until a hypothetical holder of a Class C Preferred Unit acquired on the Class C Closing Date has received with respect to such Class C Preferred Unit, during the period since the Class C Closing Date through such date, distributions of Available Cash that are deemed to be Capital Surplus in an aggregate amount equal to the Face Value of the Class C Preferred Units set forth in the Preferred Class C Certificate of Designation; (c) Third, 2% to the holders of Class A Units, Pro Rata, and 98% to the holders of Common Units, Pro Rata, 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; (bd) 100% to the holders of Common UnitsFourth, Pro Rata, until there has been distributed in respect of each Common Unit then Outstanding an amount equal to the Cumulative Common Unit Arrearage. Thereafter, all any remaining Available Cash shall be distributed as if it were Operating Surplus and shall be distributed in accordance with Section 6.4. (c) 100% to the holders of Class D Units, Pro Rata, until a hypothetical holder of a Class D Unit acquired on the Closing Date has received with respect to such Class D Unit, during the period since the date Class D Units were originally issued through such date, distributions of Available Cash that are deemed to be Capital Surplus in an aggregate amount equal to the Initial Unit Price; (d) 100% to the holders of Class D Units, Pro Rata, until there has been distributed in respect of each Class D Unit then Outstanding an amount equal to the Cumulative Class D Unit Arrearage; and (e) Thereafter, all Available Cash shall be distributed as if it were Operating Surplus and shall be distributed in accordance with Section 6.4. 12. Article VI is hereby amended to add a new Section 6.9 as follows: