CAPITAL PRODUCT PARTNERS L.P. as Borrower THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1 as Lenders - and - HSH NORDBANK AG as Swap Bank - and - HSH NORDBANK AG as Bookrunner - and - HSH NORDBANK AG as Agent and Security Trustee...
Exhibit
4.2
Date 19
September 2007
as
Borrower
THE
BANKS AND FINANCIAL INSTITUTIONS
listed
in Schedule 1
as
Lenders
- and
-
HSH
NORDBANK AG
as Swap
Bank
- and
-
HSH
NORDBANK AG
as
Bookrunner
- and
-
HSH
NORDBANK AG
as Agent
and Security Trustee
__________________________________
___________________________________
in
relation to a Loan Agreement dated
22 March
2007 relating to revolving credit
and term
loan facilities not exceeding US$370,000,000
XXXXXX,
XXXXXX & XXXXXXXX
Piraeus
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THIS AGREEMENT is made on 19
September 2007
BETWEEN
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(1)
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CAPITAL PRODUCT PARTNERS
L.P. (the “Borrower”);
|
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(2)
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THE BANKS AND FINANCIAL
INSTITUTIONS listed in Schedule 1, as Lenders;
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(3)
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HSH NORDBANK AG acting
through its office at Xxxxxxx-Xxxxxxxxx-Xxxxx 00, X-00000, Xxxxxxx,
Xxxxxxx, as Agent;
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(4)
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HSH NORDBANK AG acting
through its office at Xxxxxxx-Xxxxxxxxx-Xxxxx 00, X-00000, Xxxxxxx,
Xxxxxxx, as Security Trustee;
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(5)
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HSH NORDBANK AG acting
through its office at Xxxxxxx-Xxxxxxxxx-Xxxxx 00, X-00000, Xxxxxxx,
Xxxxxxx, as Swap
Bank; and
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(6)
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HSH NORDBANK AG acting
through its office at Xxxxxxx-Xxxxxxxxx-Xxxxx 00, X-00000, Xxxxxxx as Bookrunner.
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BACKGROUND
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(A)
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By
a loan agreement dated 22 March 2007 and made between (i) the Borrower,
(ii) the Lenders, (iii) the Agent, (iv) the Security Trustee, (v) the Swap
Bank and (vi) the Bookrunner, the Lenders agreed to make available to the
Borrower revolving credit and term loan facilities not exceeding
US$370,000,000.
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(B)
|
The
Borrower has made a request to the Creditor Parties to make available a
new tranche in the amount of up to US$30,000,000 (“Tranche D”) under the
Loan Agreement (by reducing the maximum amount of Tranche A by
US$30,000,000) to allow the Borrower to part-finance the acquisition of
all the shares in Xxxx Shipmanagement Co. and to provide it with working
capital for its general corporate purposes or to part-finance future
acquisitions of vessels or shares in shipowning companies or for any of
the purposes applicable to Tranche C.
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(C)
|
This
Agreement sets out the terms and conditions on which the Creditor Parties
agree, with effect on and from the Effective Date, at the request of the
Borrower to make available Tranche D and the consequential amendments to
the Loan Agreement and the other Finance
Documents.
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IT IS AGREED as
follows:
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1
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1.1
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Defined
expressions. Words and expressions defined in the Loan
Agreement and the other Finance Documents shall have the same meanings
when used in this Agreement unless the context otherwise
requires.
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1.2
|
Definitions. In
this Agreement, unless the contrary intention appears:
|
|
“ATTIKOS” means
the oil tanker of approximately 12,000 deadweight metric tons registered
in the ownership of Xxxx under Liberian flag with the name
“ATTIKOS”;
|
|
| “Attikos Charter” means a time charter in respect of “ATTIKOS” dated 31 May 2007 and made between Xxxx as owner and Trafigura Xxxxxx BV as charterer; | |
|
“Effective
Date” means the date on which all the conditions
precedent referred to in Clause 3.1 have been fulfilled by the Borrower,
to be a Business Day not later than 24 September 2007 (or such later date
as the Lenders may agree with the Borrower);
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“Loan
Agreement” means the loan agreement dated 22 March 2007
referred to in Recital (A);
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“Xxxx” means
Xxxx Shipmanagement Co., a Xxxxxxxx Islands corporation whose registered
office is at Trust Company Complex, Ajeltake Road, Ajeltake Island,
Majuro, Xxxxxxxx Islands; and
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|
|
“Tranche
D” means an amount of up to $30,000,000 to be made
available by the Lenders to the Borrower in up to two Advances pursuant to
the terms of the Loan Agreement (as supplemented by this Agreement) of
which:
|
|
(a)
|
$20,500,000
shall be paid by the Borrower to Capital Maritime & Trading Corp. in
part-financing the acquisition of all the shares in
Xxxx;
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(b)
|
$9,500,000
shall be used by the Borrower for its general corporate purposes or to
part-finance future acquisitions of vessels or in shipowning companies or
for any of the purposes applicable to Tranche
C.
|
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1.3
|
Application of construction and
interpretation provisions of Loan Agreement. Clauses
1.2, 1.3, 1.4 and 1.5 of the Loan Agreement apply, with any necessary
modifications, to this Agreement.
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2
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2.1
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Agreement of the
Lenders. The Lenders agree, subject to and upon the
terms and conditions of this Agreement, to make available Tranche D to the
Borrower under the Loan Agreement.
|
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2.2
|
Agreement of the Creditor
Parties. The Creditor Parties agree, subject to and upon
the terms and conditions of this Agreement, to the consequential amendment
of the Loan Agreement and the other Finance Documents in connection with
the matters referred to in Clause 2.1.
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2.3
|
Effective Date. The
agreement of the Lenders and the other Creditor Parties contained in
Clause 2.1 shall have effect on and from the Effective
Date.
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3
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3.1
|
General. The
agreement of the Lenders and the other Creditor Parties contained in
Clauses 2.1 and 2.2 is subject to the fulfilment of the conditions
precedent of Part D of Schedule 3 of the Loan Agreement as supplemented by
this Agreement and in Clause 3.2.
|
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3.2
|
Conditions Precedent to Tranche
D. The conditions referred to in Clause 3.1 are that, in
addition to the fulfilling of the conditions precedent referred to in Part
D of Schedule 3 of the Loan Agreement as supplemented by this Agreement,
the Agent shall have received the following documents and evidence in all
respects in form and substance satisfactory to the Agent and its lawyers
on or before the Effective Date (or such later date as the Lenders may
agree with the Borrower):
|
| (a) |
documents
of the kind specified in paragraphs 3, 4 and 5 of Schedule 3, Part A of
the Loan Agreement in relation to the Borrower updated with appropriate
modifications to refer to this Agreement;
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(b)
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originals
of this Agreement duly executed by the parties thereto;
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(c)
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the
endorsement at the end of this Agreement signed by the relevant
Owners;
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(d)
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documentary
evidence that the agent for service of process named in Clause 30 of the
Loan Agreement has accepted its appointment; and
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(e)
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any
further opinions, consents, agreements and documents in connection with
this Agreement and the Finance Documents which the Lenders may request by
notice to the Borrower prior to the Effective Date.
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4
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4.1
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Repetition of Loan Agreement
representations and warranties. The Borrower represents
and warrants to the Creditor Parties that the representations and
warranties in clause 10 of the Loan Agreement, as amended and supplemented
by this Agreement and updated with appropriate modifications to refer to
this Agreement, remain true and not misleading if repeated on the date of
this Agreement with reference to the circumstances now
existing.
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4.2
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Repetition of Finance Document
representations and warranties. The Borrower and each of
the Security Parties represents and warrants to the Creditor Parties that
the representations and warranties in the Finance Documents (other than
the Loan Agreement) to which it is a party, as amended and supplemented by
this Agreement and updated with appropriate modifications to refer to this
Agreement remain true and not misleading if repeated on the date of this
Agreement with reference to the circumstances now
existing.
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5
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5.1
|
Specific amendments to Loan
Agreement. With effect on and from the Effective Date
the Loan Agreement shall be, and shall be deemed by this Agreement to be,
amended as follows:
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(a)
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by
adding in Clause 1.1 thereof each of the definitions in Clause 1.1 of this
Agreement (other than the definitions “Effective Date” and
“Loan
Agreement”);
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(b)
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by
adding in Clause 1.1 thereof the following
definition:
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““Attikos
Advance” has the meaning given to that term in Clause
4.2(d);”;
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(c)
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by
adding a new sub-paragraph (h) in the definition of “Existing Charter” in
Clause 1.1 thereof as follows:
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“(h)
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“ATTIKOS”,
the Attikos Charter;
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(d)
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by
adding a new sub-paragraph (h) in the definition of “New Ships Owners” in
Clause 4.1. thereof as follows:
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“(h)
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Xxxx
Shipmanagement Co. (“Xxxx”);”
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(e)
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by
adding a new sub-paragraph (p) in the definition of “Owner” in Clause 1.1
thereof as follows:
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“(p)
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“ATTIKOS”,
Xxxx”;
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(f)
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by
construing all references to “Ships” in the Loan Agreement as if the same
included reference to “ATTIKOS”;
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(g)
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by
deleting the figure “$60,000,000” from the definition of “Tranche A” in
Clause 1.1 thereof and replacing it with “$30,000,000”;
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(h)
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by
adding in the definition of “Tranche” in Clause 1.1 thereof the words “and
Tranche D” after reference to “Tranche C” and by deleting the word “and”
between the “Tranche B” and “Tranche C”;
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(i)
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by
deleting the figure “$60,000,000” from Clause 2.1(a) thereof and replacing
it with “$30,000,000”;
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(j)
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by
adding a new sub-paragraph (d) in Clause 2.1 thereof as
follows:
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“(d)
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Tranche
D shall be in an amount not exceeding
$30,000,000”;
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(k)
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by
redesignating the existing sub-paragraph (d) of Clause 2.1 thereof as
sub-paragraph (e) and by deleting in that sub-paragraph the word “and”
after the words “four Advances” and by adding the following words at the
end of the sub-paragraph:
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“and
Tranche D may be drawn down in up to two Advances”;
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(l)
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by
adding a new sub-paragraph (d) in Clause 4.2. thereof as fol
lows:
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“(d)
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each
Advance under Tranche D shall:
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(i)
|
in
the case of the Advance which shall be used in part-financing the
acquisition of all the shares in Xxxx (the “Attikos Advance”), be in
an amount of $20,500,000; and
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||
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(ii)
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in
the case of the advance which may be used by the Borrower for its general
corporate purpose, be in the amount of
$9,500,000;”;
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(m)
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by
redesignating the existing sub-paragraphs (d) and (e) of Clause 4.2
thereof as sub-paragraphs (f) and (g)
respectively;
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(n)
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by
adding a new sub-paragraph (e) in Clause 9.1 thereof as
follows:
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“(e)
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that,
on or before the service of the Drawdown Notice in respect of the Attikos
Advance, the Agent receives the documents described in Part D of Schedule
3 in form and substances satisfactory to the Agent and its
lawyers”;
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(o)
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by
redesignating the existing sub-paragraphs (e), (f) and (g) in Clause 9.1
thereof as sub-paragraphs (f), (g) and (h)
respectively;
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(p)
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by
adding a Part D in Schedule 3 thereof as
follows:
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“PART
D
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The
following are the documents referred to in Clause 9.1(e) required on or
before the Drawdown Date of the Attikos Advance.
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In
Part D of Schedule 3, the following definitions shall have the following
meanings:
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1
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Copies
of resolutions of the shareholders and directors of Xxxx and the Borrower
authorising the execution of each of the Finance Documents to which Xxxx
is a party and, in the case of the Borrower, approving the borrowing of
the Attikos Advance and authorising named directors or attorneys to give
the Drawdown Notices and other notices under this
Agreement.
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2
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The
original of any power of attorney under which any Finance Document is
executed on behalf of Xxxx.
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3
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Copies
of all consents which Xxxx or the Borrower requires to enter into, or make
any payment under, any Finance Document.
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4
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A
duly executed original of the Guarantee of Xxxx and of the Mortgage, the
General Assignment and the Owner’s Earnings Account Pledge relative to
“ATTIKOS”, and of each document to be delivered pursuant to each such
Finance Document.
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5
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A
duly executed original of the Charterparty Assignment in respect of the
Attikos Charter and of each document to be delivered pursuant to such
Charterparty Assignment.
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6
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Evidence
satisfactory to the Agent that Xxxx is a direct or indirect wholly-owned
subsidiary of the Borrower.
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7
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The
originals of any documents required in connection with the opening of the
Earnings Account in respect of “ATTIKOS”.
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8
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Documentary
evidence that:
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(a)
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“ATTIKOS”
is registered in the ownership of Xxxx under an Liberian
flag;
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(b)
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“ATTIKOS”
is in the absolute and unencumbered ownership of Xxxx save as contemplated
by the Finance Documents;
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(c)
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“ATTIKOS”
maintains the highest available class with a classification society which
is a member of the IACS as the Agent may approve free of all overdue
recommendations and conditions of such classification
society;
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(d)
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the
Mortgage relating to “ATTIKOS” has been duly registered or recorded
against “ATTIKOS” as a valid first preferred ship mortgage in accordance
with the laws of the Republic of Liberia; and
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(e)
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“ATTIKOS”
is insured in accordance with the provisions of this Agreement and all
requirements therein in respect of insurances have been complied
with.
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9
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A
copy of the Management Agreement and a duly executed original of the
Approved Manager’s Undertaking in relation to
“ATTIKOS”.
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10
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Copies
of:
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(a)
|
the
document of compliance (DOC) and safety management certificate
(SMC) referred to in paragraph (a) of the definition of the ISM Code
Documentation in respect of “ATTIKOS” and the Approved Manager certified
as true and in effect by Xxxx; and
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(b)
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the
ISPS Code Documentation in respect of “ATTIKOS” and Xxxx certified as true
and in effect by Xxxx.
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11
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Two
valuations (at the cost of the Borrower) of “ATTIKOS”, addressed to the
Agent, stated to be for the purposes of this Agreement and dated not
earlier than 4 weeks before the Drawdown Date relative to the Attikos
Advance, each from an Approved Broker (such valuations to be made in
accordance with Clause 15.4).
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12
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A
survey report in respect of “ATTIKOS” prepared (at the cost of the
Borrower) by an independent marine surveyor appointed by the Agent dated
no later than 20 days prior to the Drawdown Date of the Attikos Advance in
form, scope and substance satisfactory to the Agent and its technical
advisers.
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|
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13
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At
the cost of the Borrower, a favourable opinion from an independent
insurance consultant acceptable to the Lenders on such matters relating to
the insurances for “ATTIKOS” as the Agent may require.
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14
|
Favourable
legal opinions from lawyers appointed by the Lender on such matters
concerning the laws of the Republic of Liberia and such other relevant
jurisdictions as the Agent may require.
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15
|
If
the Agent so requires, in respect of any of the documents referred to
above, a certified English translation prepared by a translator approved
by the Agent.
|
|
Every
copy document delivered under this Schedule shall be certified as a true
and up to date copy by a director or the secretary (or equivalent officer)
of the Borrower.”;
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(q)
|
by
construing references throughout to “this Agreement”, “hereunder” and
other like expressions as if the same referred to the Loan Agreement as
amended and supplemented by this Agreement.
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|
5.2
|
Amendments to Finance
Documents. With effect on and from the Effective Date
each of the Finance Documents other than the Loan Agreement, shall be, and
shall be deemed by this Agreement to be, amended as
follows:
|
|
(a)
|
the
definition of, and references throughout each of the Finance Documents to,
the Loan Agreement and any of the other Finance Documents shall be
construed as if the same referred to the Loan Agreement and those Finance
Documents as amended and supplemented by this
Agreement;
|
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(b)
|
by
construing references throughout each of the Finance Documents to “this
Agreement”, “this Deed”, “hereunder” and other like expressions as if the
same referred to such Finance Documents as amended and supplemented by
this Agreement.
|
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5.3
|
Finance Documents to remain in
full force and effect. The Finance Documents shall
remain in full force and effect as amended and supplemented
by:
|
|
(a)
|
the
amendments to the Finance Documents contained or referred to in Clauses
5.1 and 5.2 ; and
|
|
(b)
|
such
further or consequential modifications as may be necessary to give full
effect to the terms of this Agreement,
|
|
6
|
|
|
6.1
|
Xxxxxxxx’s obligation to
execute further documents etc. The Borrower shall, and
shall procure that any other party to any Security Document
shall:
|
|
(a)
|
execute
and deliver to the Security Trustee (or as it may direct) any assignment,
mortgage, power of attorney, proxy or other document, governed by the law
of England or such other country as the Security Trustee may, in any
particular case, specify;
|
|
(b)
|
effect
any registration or notarisation, give any notice or take any other step,
which the Agent may, by notice to the Borrower or other party, specify for
any of the purposes described in Clause 6.2 or for any similar or
related purpose.
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6.2
|
Purposes
of further assurances. Those purposes are:
|
|
(a)
|
validly
and effectively to create any Security Interest or right of any kind which
the Security Trustee intended should be created by or pursuant to the Loan
Agreement or any other Security Document, each as amended and supplemented
by this Agreement; and
|
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(b)
|
implementing
the terms and provisions of this Agreement.
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|
6.3
|
Terms of further
assurances. The Security Trustee may specify the terms
of any document to be executed by the Borrower or any other party under
Clause 6.1, and those terms may include any covenants, powers and
provisions which the Security Trustee considers appropriate to protect its
interests.
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6.4
|
Obligation to comply with
notice. The Borrower or any other party shall comply
with a notice under Clause 6.1 by the date specified in the
notice.
|
|
6.5
|
Additional corporate
action. At the same time as the Borrower or any other
party delivers to the Agent any document executed under Clause 6.1(a), the
Borrower or any other party shall also deliver to the Agent a certificate
signed by 2 of the Borrower’s or that other party’s directors which
shall:
|
|
(a)
|
set
out the text of a resolution of the Borrower’s or that other party’s
directors specifically authorising the execution of the document specified
by the Agent; and
|
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(b)
|
state
that either the resolution was duly passed at a meeting of the directors
validly convened and held throughout which a quorum of directors entitled
to vote on the resolution was present or that the resolution has been
signed by all the directors and is valid under the Borrower's or that
other party’s articles of association or other constitutional
documents.
|
|
7
|
|
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7.1
|
Expenses. The
provisions of clause 20 (Fees and Expenses) of the Loan Agreement, as
amended and supplemented by this Agreement, shall apply to this Agreement
as if they were expressly incorporated in this Agreement with any
necessary modifications.
|
|
8
|
|
|
8.1
|
General. The
provisions of clause 28 (Notices) of the Loan Agreement, as amended and
supplemented by this Agreement, shall apply to this Agreement as if they
were expressly incorporated in this Agreement with any necessary
modifications.
|
|
9
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9.1
|
Counterparts. This
Agreement may be executed in any number of
counterparts.
|
|
9.2
|
Third party
rights. A person who is not a party to this Agreement
has no right under the Contracts (Rights of Third Parties) Act 1999 to
enforce or to enjoy the benefit of any term of this
Agreement.
|
|
10
|
|
|
10.1
|
Governing
law. This Agreement shall be governed by and construed
in accordance with English law.
|
|
10.2
|
Incorporation of the Loan
Agreement provisions. The provisions of clause 30 (Law
and Jurisdiction) of the Loan Agreement, as amended and supplemented by
this Agreement, shall apply to this Agreement as if they were expressly
incorporated in this Agreement with any necessary
modifications.
|
THIS AGREEMENT has been duly
executed as a Deed on the date stated at the beginning of this
Agreement.
BORROWER
|
EXECUTED as a DEED
|
)
|
|
)
|
|
|
acting
by
|
)
|
|
its
duly authorised attorney-in-fact
|
)
|
LENDERS
|
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
HSH
NORDBANK AG
|
)
|
|
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
ALPHA
BANK A.E.
|
)
|
|
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
DEUTSCHE
SCHIFFSBANK AG
|
)
|
|
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
NATIONAL
BANK OF
|
)
|
|
GREECE
S.A.
|
)
|
|
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
FORTIS
BANK
|
)
|
AGENT
|
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
HSH NORDBANK
AG
|
)
|
SECURITY
TRUSTEE
|
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
HSH
NORDBANK AG
|
)
|
SWAP
BANK
|
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
HSH
NORDBANK AG
|
)
|
BOOKRUNNER
|
SIGNED
by
|
)
|
|
for
and on behalf of
|
)
|
|
HSH
NORDBANK AG
|
)
|
|
Witness
to all the above
|
)
|
|
signatures:
|
)
|
Name:
Address:
We hereby confirm and acknowledge we have read and understood the terms and conditions of the above Supplemental Agreement and agree in all respects to the same and confirm that the Finance Documents to which we are a party shall remain in full force and effect and shall continue to stand as security for the obligations of the Borrower under the Loan Agreement (as amended by the Supplemental Agreement) and shall, without limitation, secure the Loan.
|
for
and on behalf of
|
for
and on behalf of
|
|||
|
APOLLONAS
SHIPPING COMPANY
|
CANVEY
SHIPMANAGEMENT CO.
|
|||
|
for
and on behalf of
|
for
and on behalf of
|
|||
|
CARNATION
SHIPPING COMPANY
|
CENTURION
NAVIGATION LIMITED
|
|||
|
for
and on behalf of
|
for
and on behalf of
|
|||
|
IRAKLITOS
SHIPPING COMPANY
|
POLARWIND
MARITIME S.A.
|
|||
|
for
and on behalf of
|
for
and on behalf of
|
|||
|
SHIPPING
RIDER CO.
|
TEMPEST
MARITIME INC.
|
|||
|
for
and on behalf of
|
for
and on behalf of
|
|||
|
LAREDO
MARITIME INC.
|
EPICURUS
SHIPPING COMPANY
|
|||
Dated: 19
September 2007
LENDERS
|
Lender
|
Lending
Office
|
|
HSH
Nordbank XX
|
Xxxxxxx-Xxxxxxxxx-Xxxxx
50
20095
Hamburg
Germany
Fax
No: x(00) 00 00 00 00000
|
|
Alpha
Bank A.E.
|
Akti
Miaouli 89
185
38 Piraeus
Greece
Fax
No: x00 000 000 0000
|
|
Deutsche
Schiffsbank AG
|
Domshof
17
D-28195
Bremen
Fax
No: x00 000 0000000
|
|
National
Bank of Greece S.A.
|
Bouboulinas
2 & Akti Miaouli
185
35 Piraeus
Fax
No: x00 000 000 0000
|
|
Fortis
Bank
|
000
Xxxxxxx Xxx
000
00 Xxxxxx
Xxxxxx
|
14
