Date 2009 CAPITAL PRODUCT PARTNERS L.P.
Exhibit
4.6
Date
2009
as
Borrower
- and
-
THE
BANKS AND FINANCIAL INSTITUTIONS
listed
in Schedule 1
as
Lenders
- and
-
HSH
NORDBANK AG
as Agent
and Security Trustee
- and
-
HSH
NORDBANK AG
as
Bookrunner
- and
-
HSH
NORDBANK AG
as Swap
Bank
FIFTH
SUPPLEMENTAL AGREEMENT
in
relation to a Loan Agreement dated 22 March 2007
(as
amended and supplemented by supplemental agreements dated,
respectively,
19
September 2007, 11 June 2008, 7 April 2009 and 8 April 2009)
in
respect of revolving credit and term loan facilities
of
(originally) US$370,000,000 in aggregate
XXXXXX,
XXXXXX & XXXXXXXX
Piraeus
INDEX
| Clause |
Page
|
|
|
1
|
INTERPRETATION
|
2
|
|
2
|
AGREEMENT
OF THE CREDITOR PARTIES
|
2
|
|
3
|
CONDITIONS
PRECEDENT
|
3
|
|
4
|
REPRESENTATIONS
AND WARRANTIES
|
3
|
|
5
|
AMENDMENTS
TO LOAN AGREEMENT AND OTHER FINANCE DOCUMENTS
|
3
|
|
6
|
FURTHER
ASSURANCES
|
5
|
|
7
|
FEES
AND EXPENSES
|
6
|
|
8
|
COMMUNICATIONS
|
6
|
|
9
|
SUPPLEMENTAL
|
6
|
|
10
|
LAW
AND JURISDICTION
|
6
|
|
SCHEDULE LENDERS
|
8
|
|
|
EXECUTION
PAGES
|
9
|
THIS AGREEMENT is made
on
2009
BETWEEN
|
(1)
|
CAPITAL PRODUCT PARTNERS
L.P. as Borrower;
|
|
(2)
|
THE BANKS AND FINANCIAL
INSTITUTIONS listed in Schedule 1 herein, as Lenders;
|
|
(3)
|
HSH NORDBANK
AG, acting through
its office at Xxxxxxx-Xxxxxxxxx-Xxxxx 00, X-00000 Xxxxxxx, Xxxxxxx
as Agent;
|
|
(4)
|
HSH NORDBANK
AG, acting through
its office at Xxxxxxx-Xxxxxxxxx-Xxxxx 00, X-00000 Xxxxxxx,
Xxxxxxx, as Security
Trustee;
|
|
(5)
|
HSH NORDBANK
AG, acting through
its office at Xxxxxxx-Xxxxxxxxx-Xxxxx 00, X-00000 Xxxxxxx,
Xxxxxxx, as Bookrunner;
and
|
|
(6)
|
HSH NORDBANK
AG, acting
through its office at Xxxxxxxxxxx 0, X-00000 Xxxx,
Xxxxxxx as Swap
Bank.
|
BACKGROUND
|
(A)
|
By
a loan agreement dated 22 March 2007 as amended and supplemented by
supplemental agreements dated, respectively, 19 September 2007, 11 June
2008, 7 April 2009 and 8 April 2009 (together, the “Loan Agreement”) and
made between (i) the Borrower, (ii) the Lenders, (iii) the Agent, (iv) the
Security Trustee, (v) the Bookrunner and (vi) the Swap Bank, the Lenders
agreed to make available to the Borrower revolving credit and term loan
facilities in an amount of (originally) US$370,000,000 in aggregate of
which an amount of US$366,500,000 is outstanding by way of principal on
the date hereof.
|
|
(B)
|
The
Borrower has requested that the Lenders give their
consent:
|
|
|
(i)
|
for
the Market Value of a Ship or a Fleet Vessel, which at the relevant time
is subject to an Approved Charter to be calculated for the purposes of
clause 15.4 of the Loan Agreement by taking into account the value of such
Approved Charter during the period commencing on 30 June 2009 and ending
on 30 June 2012 (the “Adjustment Period”);
and
|
|
|
(ii)
|
the
increase of the ratio of Total Indebtedness less cash and cash equivalents
to the aggregate of Market Value of all Fleet Vessels during the
Adjustment Period.
|
|
(C)
|
The
Lenders’ consent to the Borrower’s requests referred to in Recital (B) are
subject to the following
conditions:
|
|
|
(i)
|
the
Margin increasing to either 1.35 or 1.45 per cent. per annum during the
Adjustment Period; and
|
|
|
(ii)
|
if
at any time during the Adjustment Period, the rating of any Approved
Charterer of a Ship or a Fleet Vessel subject to an Approved Charter at
the relevant time falls below Aa2 (in the case of Moody’s) and/or AA (in
the case of Fitch or S&P) (so long as at least two of the three rating
agencies reduce their ratings below the levels referred to above), the
Market Value of that Ship or a Fleet Vessel shall be calculated free of
that Approved Charter.
|
|
(D)
|
This
Agreement sets out the terms and conditions on which the Creditor Parties
agree, with effect on and from the Effective Date, to amend the Loan
Agreement.
|
IT IS AGREED as
follows:
|
1
|
INTERPRETATION
|
|
1.1
|
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.
|
|
1.2
|
Definitions. In
this Agreement, unless the contrary intention
appears:
|
“Adjustment Period” has the
meaning given in Recital B(i);
“Approved Charter” means, in
relation to a Ship or a Fleet Vessel, a charterparty or other contract of
employment in respect of that Ship or Fleet Vessel having an unexpired duration
of at least 3 months entered into by the Owner of the Ship (or the applicable
member of the Group in the case of a Fleet Vessel) with an Approved
Charterer;
“Approved Charterer” means BP
Shipping Limited or a charterer acceptable to the Agent (acting reasonably and
on the instructions of the Majority Lenders) which is an oil major equivalent to
BP plc (the parent company of BP Shipping Limited) and which is rated not less
than Aa2 by Moody’s or AA by Fitch or S&P;
“Effective Date” means the date
on which the conditions precedent in Clause 3 are satisfied;
“Fitch” means Fitch Ratings and
includes its successors;
“Loan Agreement” means the loan
agreement dated 22 March 2007 (as amended and supplemented from time to time)
referred to in Recital (A);
“Moody’s” means Xxxxx’x
Investor Services Inc. and includes its successors;
“Mortgage Addendum” means, in
respect of each Mortgage, an addendum thereto executed or to be executed by the
relevant Owner in favour of the Security Trustee in such form as the Agent may
approve or require and, in the plural, means all of them; and
“S&P” means Standard &
Poor’s and includes its successors.
|
1.3
|
Application of construction and
interpretation provisions of Loan Agreement. Clauses 1.2
and 1.5 of the Loan Agreement apply, with any necessary modifications, to
this Agreement.
|
|
2
|
AGREEMENT
OF THE CREDITOR PARTIES
|
|
2.1
|
Agreement of the
Lenders. The Lenders agree, subject to and upon the
terms and conditions of this
Agreement:
|
|
(a)
|
to
calculate during the Adjustment Period the market value of a Ship or a
Fleet Vessel which at the relevant time is subject to an Approved Charter
by taking into account the Approved Charter applicable thereto;
and
|
|
(b)
|
to
the increase of the ratio of Total Indebtedness less cash and cash
equivalents to the aggregate of Market Value of all Fleet Vessels from
0.725:1 to 0.80:1.
|
|
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.
|
2
|
2.3
|
Effective Date. The
agreement of the Lenders and the other Creditor Parties contained in
Clauses 2.1 and 2.2 shall have effect on and from the Effective
Date.
|
|
3
|
CONDITIONS
PRECEDENT
|
|
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 in Clause 3.2.
|
|
3.2
|
Conditions
precedent. The conditions referred to in Clause 3.1 are
that 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:
|
|
(a)
|
documents
of the kind specified in paragraphs 3, 4 and 5 of Schedule 3, Part A to
the Loan Agreement in relation to the Borrower and each Owner in
connection with their execution of this Agreement and the Mortgage
Addenda, updated with appropriate modifications to refer to this
Agreement;
|
|
(b)
|
an
original of this Agreement duly executed by the parties to it and
counter-signed by each of the
Owners;
|
|
(c)
|
receipt
of an original of each Mortgage Addendum duly signed by the relevant Owner
and evidence satisfactory to the Agent and its lawyers that the same has
been registered as a valid addendum to the applicable Mortgage in
accordance with the laws of the applicable Approved Flag
State;
|
|
(d)
|
in
relation to each Ship and each Fleet Vessel subject to an Approved
Charter, a copy of the Approved Charter applicable thereto duly executed
by the parties thereto and evidence satisfactory to the Agent and its
lawyers that the relevant Ship or Fleet Vessel is operating under that
Approved Charter;
|
|
(e)
|
favourable
opinions from lawyers appointed by the Agent on such matters concerning
the laws of the Approved Flag State(s) on which the Ships are registered
and such other relevant jurisdictions as the Agent may
require;
|
|
(f)
|
evidence
that the fees specified in Clause 7.1 have been received in full by
the Agent; and
|
|
(g)
|
any
other document or evidence as the Agent may request in writing from the
Borrower.
|
|
4
|
REPRESENTATIONS
AND WARRANTIES
|
|
4.1
|
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 remain true and not
misleading if repeated on the date of this
Agreement.
|
|
4.2
|
Repetition of Finance Document
representations and warranties. The Borrower and each of
the other 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 remain true and not
misleading if repeated on the date of this
Agreement.
|
|
5
|
AMENDMENTS
TO LOAN AGREEMENT AND OTHER FINANCE
DOCUMENTS
|
|
5.1
|
Specific amendments to Loan
Agreement. With effect on and from the Effective Date
the Loan Agreement shall be amended as
follows:
|
|
(a)
|
by
adding the following definition in Clause 1.1
thereof:
|
3
““Adjustment Period” means the
period commencing on 30 June 2009 and ending on 30 June 2012;”;
|
(b)
|
by
adding in Clause 1.1 thereof the definitions of “Approved Charter”,
“Approved Charterer”, “Moody’s”, “S&P”, “Fitch” and “Mortgage
Addendum” set out in Clause 1.2 of this
Agreement;
|
|
(c)
|
by
adding in the definition of “Approved Broker” in Clause 1.1 thereof before the words “and
Xxxxx Xxxxxxxx Xxxxxx” the
following:
|
“Arrow
Sale & Purchase (UK) Ltd., Fearnleys AS, Oslo, Pareto Shipbrokers AS,
Xxxxxxx Xxxxxx & Xxxxx, London,”;
|
(d)
|
by
deleting the definition of “Margin” in Clause 1.1 thereof in its entirety
and substituting the same with the
following:
|
““Margin” means:
|
|
(a)
|
during
the period starting on 22 March 2007 and ending on 29 June 2009, 0.75 per
cent. per annum; and
|
|
|
(b)
|
at
all other times thereafter:
|
|
|
(i)
|
at
any time when (A) the ratio of Total Indebtedness less cash and cash
equivalents to the aggregate Market Value of all Fleet Vessels is up to
(and including) 70 per cent. and (B) the Security Cover Ratio is at least
143 per cent., 1.35 per cent. per annum;
and
|
|
|
(ii)
|
at
any time when either (A) the ratio of Total Indebtedness less cash and
cash equivalents to the aggregate Market Value of all Fleet Vessels is
more than 70 per cent. and up to (and including) 80 per cent. or (B) the
Security Cover Ratio is more than 125 per cent. but less than 143 per
cent., 1.45 per cent. per annum;”;
|
|
(e)
|
by
deleting paragraph (a) of Clause 12.5 thereof in its entirety and by
replacing it with the following:
|
|
|
“(a)
|
the
ratio of Total Indebtedness less cash and cash equivalents to the
aggregate Market Value of all the Fleet Vessels shall not
exceed:
|
|
|
(i)
|
during
the Adjustment Period, 0.80:1; and
|
|
|
(ii)
|
at
all other times thereafter,
0.725:1;”
|
|
(f)
|
by
deleting paragraph (d) of clause 15.4 thereof in its entirety and by
replacing it with the following:
|
|
|
“(d)
|
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:
|
|
|
(i)
|
free
of any existing charter or contract of
employment:
|
|
|
(A)
|
for
the purpose of determining the amount of any Advance which may during the
Adjustment Period be reborrowed pursuant to the terms of this
Agreement;
|
4
|
|
(B)
|
for
the purpose of determining the aggregate Market Value of all Ships then
subject to a Mortgage for any Advance to be reborrowed pursuant to the
terms of this Agreement; and
|
|
|
(C)
|
at
all times other than during the Adjustment Period;
or
|
|
|
(ii)
|
inclusive
of any Approved Charter during the Adjustment Period for the purpose of
calculating the financial covenant set out in Clause 12.5(a);”;
and
|
|
(g)
|
by
adding a “hanging” paragraph at the end of clause 15.4 thereof as
follows:
|
“If
during the Adjustment Period:
|
|
(a)
|
Moody’s
adjusts its rating of any Approved Charterer to below Aa2, and at least
one of Fitch’s or S&P adjusts its rating of the same Approved
Charterer to below AA; or
|
|
|
(b)
|
both
Fitch’s and S&P adjust their rating of any Approved Charterer to below
AA,
|
the
Market Value of the Ship or Fleet Vessel then subject to an Approved Charter
shall be calculated free of that Approved Charter ”.
|
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 have been, 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;
|
|
(b)
|
by
construing all references in the Loan Agreement and in the Finance
Documents to a “Mortgage” as references to that Mortgage as amended and
supplemented by the Mortgage Addendum applicable thereto;
and
|
|
(c)
|
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.
|
|
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
|
FURTHER
ASSURANCES
|
|
6.1
|
Xxxxxxxx’s and each Security
Party’s obligation to execute further documents etc. The Borrower
and each Security Party 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;
|
5
|
(b)
|
effect
any registration or notarisation, give any notice or take any other
step,
|
|
|
which
the Agent may, by notice to the Borrower, specify for any of the purposes
described in Clause 6.2 or for any similar or related
purpose.
|
|
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 Finance Document, each as amended and supplemented
by this Agreement, and
|
|
(b)
|
implementing
the terms and provisions of this
Agreement.
|
|
6.3
|
Terms of further
assurances. The Security Trustee may specify the terms
of any document to be executed by the Borrower or any Security 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.
|
|
6.4
|
Obligation to comply with
notice. The Borrower or any Security Party shall comply
with a notice under Clause 6.1 by the date specified in the
notice.
|
|
7
|
FEES
AND EXPENSES
|
|
7.1
|
Fee. On the
date of this Agreement the Borrower shall pay to the Agent for the account
of the Lenders, a non-refundable amendment fee of $366,500, which shall be
distributed by the Agent to each of the Lenders pro rata to their
Commitments.
|
|
7.2
|
Expenses. The
provisions of clause 20 (fees and expenses) of the Loan Agreement shall
apply to this Agreement as if they were expressly incorporated in this
Agreement with any necessary
modifications.
|
|
8
|
COMMUNICATIONS
|
|
(a)
|
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
|
SUPPLEMENTAL
|
|
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
|
LAW
AND JURISDICTION
|
|
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.
6
SCHEDULE
LENDERS
|
Lender
|
Lending
Office
|
|
HSH
Nordbank XX
|
Xxxxxxx-Xxxxxxxxx-Xxxxx
50
20095
Hamburg
Germany
Fax
No: x00 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
71 Athens
Fax
No: x00 000 000 0000
|
7
EXECUTION
PAGES
BORROWER
|
SIGNED
by
for
and on behalf of
|
)
)
)
|
|
|
|
|
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
|
)
)
)
|
|
|
|
|
SWAP
BANK
|
|
|
|
|
|
SIGNED by
for
and on behalf of
HSH
NORDBANK AG
|
)
)
)
|
|
|
|
|
BOOKRUNNER
|
|
|
|
|
|
SIGNED by
for
and on behalf of
HSH
NORDBANK AG
|
)
)
)
|
8
AGENT
|
SIGNED by
for
and on behalf of
HSH
NORDBANK AG
|
)
)
)
|
|
|
|
|
SECURITY
TRUSTEE
|
|
|
|
|
|
SIGNED by
for
and on behalf of
HSH
NORDBANK AG
|
)
)
)
|
|
|
|
|
Witness
to all the
above
signatures
|
)
)
|
|
|
|
|
Name:
Address:
|
|
9
COUNTERSIGNED this
day
of
2009 for and on behalf of the following Security Parties each of which, by its
execution hereof, confirms and acknowledges that it has read and understood the
terms and conditions of this First Supplemental Agreement, that it agrees in all
respects to the same and that the Finance Documents to which it is 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.
|
for
and on behalf of
APOLLONAS
SHIPPING COMPANY
|
for
and on behalf of
XXXXXXX
INTERNATIONAL S.A.
|
|
|
|
||
|
for
and on behalf of
CARNATION
SHIPPING COMPANY
|
for
and on behalf of
CENTURION
NAVIGATION LIMITED
|
|
|
|
||
|
for
and on behalf of
IRAKLITOS
SHIPPING COMPANY
|
for
and on behalf of
POLARWIND
MARITIME .S.A.
|
|
|
|
||
|
for
and on behalf of
SHIPPING
RIDER CO.
|
for
and on behalf of
TEMPEST
MARINE INC.
|
|
|
|
||
|
for
and on behalf of
XXXX
SHIPMANAGEMENT CO.
|
for
and on behalf of
LAREDO
MARITIME INC.
|
10
|
for
and on behalf of
XXXXXXX
XXXXXXXXXXXXXX INC.
|
for
and on behalf of
SPLENDOR
SHIPHOLDING S.A.
|
|
|
|
||
|
for
and on behalf of
MANGO
FINANCE CORP.
|
||
|
|
||
|
for
and on behalf of
SORREL
SHIPMANAGEMENT INC.
|
11
