Date June 11, 2008
Exhibit
10.3
Date
June 11, 2008
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
▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Piraeus
Clause Page
THIS AGREEMENT is made
on 2008
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 ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇-▇▇▇▇▇ ▇▇, ▇-▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, as Agent;
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(4)
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HSH NORDBANK AG acting
through its office at ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇-▇▇▇▇▇ ▇▇, ▇-▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, as Security Trustee;
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(5)
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HSH NORDBANK AG acting
through its office at ▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇-▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, as Swap Bank;
and
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(6)
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HSH NORDBANK AG acting
through its office at ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇-▇▇▇▇▇ ▇▇, ▇-▇▇▇▇▇, ▇▇▇▇▇▇▇ as Bookrunner.
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BACKGROUND
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(A)
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By
a loan agreement dated 22 March 2007 as amended by a supplemental
agreement dated 19th September 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)
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The
Borrower has made a request to the Creditor
Parties:
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(i)
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to
allow the Borrower to use the undrawn balance of Tranche C as working
capital for its general corporate purposes including acquisition of
vessels and ship owning companies;
and
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(ii)
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that
m.v. “▇▇▇▇ ▇▇” and m.v. “▇▇▇▇▇▇▇▇▇▇▇ ▇▇” no longer be considered as
Tranche C New Ships which will act as security for the
Loan.
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(C)
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This
Agreement sets out the terms and conditions on which the Creditor Parties
agree, with effect on and from the Effective Date, to the requests of the
Borrower 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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1.2
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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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1.3
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Definitions. In
this Agreement, unless the contrary intention
appears:
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“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 June 2008 (or such later date as the Lenders may
agree with the Borrower);
“Loan
Agreement” means the loan agreement dated 22 March 2007
referred to in Recital (A) as amended by a supplemental agreement dated 19th
September 2007.
3
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1.4
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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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2.1
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Agreement of the
Lenders. The Lenders agree, subject to and upon the
terms and conditions of this Agreement,
to:
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(a)
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allow
the Borrower to use the undrawn balance of Tranche C as working capital
for its general corporate purposes including acquisition of vessels and
ship owning companies and such undrawn balance of Tranche C to be drawn in
multiple advances (having the same use as per the undrawn balance of
Tranche D); and
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(b)
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no
longer consider m.v. “▇▇▇▇ ▇▇” and m.v. “▇▇▇▇▇▇▇▇▇▇▇ ▇▇” as Tranche C New
Ships which will act as security for the
Loan.
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2.2
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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
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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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3.1
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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 referred to in Clause 9.1 of the Loan Agreement and in Clause
3.2.
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3.2
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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 (or such later date as the Lenders
may agree with the Borrower):
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(a)
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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 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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4.1
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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
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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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5.1
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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
deleting the definition “▇▇▇▇ ▇▇” from Clause 1.2
thereof;
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(b)
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by
deleting the definition “▇▇▇▇ ▇▇ Shipbuilding Contract” from Clause 1.2
thereof;
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(c)
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by
removing the words “▇▇▇▇▇▇▇▇▇▇▇ ▇▇ and ▇▇▇▇ ▇▇” from the definition of
“Bareboat Charter” in Clause 1.2 thereof and construing the definition of
“Bareboat Charter” accordingly;
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(d)
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by
removing the words “▇▇▇▇▇▇▇▇▇▇▇ ▇▇ and ▇▇▇▇ ▇▇” from the definition of
“Existing Charter” in Clause 1.2 thereof and by construing the definition
of “Existing Charter” accordingly;
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(e)
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by
removing the words “Belerion Maritime Co. (“Belerion”) and “Wind Dancer
Shipping Inc. (“Wind Dancer”)” from the definition of “New Ships Owners”
in Clause 1.2 thereof, by construing the definition “New Ships Owners”
accordingly and by redesignating the existing paragraphs (b), (c), (d),
(e) and (f) in such definition as respectively paragraphs (a), (b), (c),
(d) and (e);
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(f)
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by
removing the words “together ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ and ▇▇▇▇ ▇▇ and, in the
singular means any of them” from the definition of “Tranche C New Ships”
in Clause 1.2 thereof and by construing all references in the Loan
Agreement to the “Tranche C New Ships” to mean “▇▇▇▇▇▇▇▇▇▇
▇▇”;
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(g)
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by
removing the words “(i) ▇▇▇▇ ▇▇, Belerion” and “(j) ▇▇▇▇▇▇▇▇▇▇▇ ▇▇, Wind
Dancer” from the definition of “Owner” in Clause 1.2 thereof and by
redesignating the existing paragraphs (k), (l), (m), (n) and (o) in the
definition of “Owner” as respectively paragraphs (i), (j), (k), (l) and
(m);
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(h)
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by
removing the words “the ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ Shipbuilding Contract and the ▇▇▇▇
▇▇ Shipbuilding Contract” from the definition of “Shipbuilding Contracts”
in Clause 1.2 thereof and by construing the definition of “Shipbuilding
Contract” accordingly;
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(i)
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by
deleting the definition of “Tranche C” in Clause 1.2 thereof and replacing
it with the following:
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“Tranche C” means an
amount of up to $86,000,000 to be made available by the Lenders to the Borrower
in multiple Advances pursuant to the terms of this Agreement and:
5
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(a)
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which,
as to an amount of $48,000,000, has been on-lent by the Borrower to Sorrel
in part-financing the acquisition of “▇▇▇▇▇▇▇▇▇▇ ▇▇” by Sorrel;
and
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(b)
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which,
as to an amount of up to $38,000,000, may be used by the Borrower as
working capital for its general working capital purposes including
acquisition of vessels and ship owning
companies,
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or, as
the context may require, the aggregate principal amount thereof outstanding at
the relevant time under this Agreement;”;
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(j)
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by
deleting Clause 4.2(c) thereof in its entirety and replacing it with the
following:
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“(c)
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the
Advances under Tranche C shall be used (i) in financing the acquisition of
“▇▇▇▇▇▇▇▇▇▇ ▇▇” and (ii) providing the Borrower with working capital for
its general corporate purposes including acquisition of vessels and ship
owning companies subject to the aggregate amount of the Advances under
Tranche C which are outstanding at any time not exceeding $86,000,000;”;
and
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(k)
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by
adding in the second line of Clause 9.1(d) thereof after the words
“Tranche C” the words “(other than any Advance which shall be used to
provide the Borrower with working capital for its general corporate
purposes)”.
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5.2
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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:
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(a)
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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)
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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
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Finance Documents to remain in
full force and effect. The Finance Documents shall
remain in full force and effect as amended and supplemented
by:
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(a)
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the
amendments to the Finance Documents contained or referred to in Clauses
5.1 and 5.2; and
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(b)
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such
further or consequential modifications as may be necessary to give full
effect to the terms of this
Agreement,
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6.1
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Borrower’s obligation to
execute further documents etc. The Borrower shall, and
shall procure that any other party to any Finance Document
shall:
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(a)
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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;
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(b)
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effect
any registration or notarisation, give any notice or take any other
step,
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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.
6
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6.2
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Purposes of further
assurances. Those purposes
are:
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(a)
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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
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(b)
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implementing
the terms and provisions of this
Agreement.
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6.3
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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
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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.
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6.5
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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:
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(a)
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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)
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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.
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7.1
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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.
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8.1
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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.
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9.1
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Counterparts. This
Agreement may be executed in any number of
counterparts.
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9.2
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Third party
rights. A person who is not a party to this Agreement
has no right under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to
enforce or to enjoy the benefit of any term of this
Agreement.
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10.1
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Governing
law. This Agreement shall be governed by and construed
in accordance with English law.
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7
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10.2
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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.
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THIS AGREEMENT has been duly
executed as a Deed on the date stated at the beginning of this
Agreement.
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BORROWER
|
|
| SIGNED by | ) |
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for
and on behalf of
|
) |
| CAPITAL PRODUCT PARTNERS L.P. | ) |
|
LENDERS
|
|
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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 | ) |
9
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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: |
10
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.
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for
and on behalf of
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for
and on behalf of
|
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APOLLONAS
SHIPPING COMPANY
|
CANVEY
SHIPMANAGEMENT CO.
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for
and on behalf of
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for
and on behalf of
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CARNATION
SHIPPING COMPANY
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CENTURION
NAVIGATION
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LIMITED
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||
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for
and on behalf of
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for
and on behalf of
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IRAKLITOS
SHIPPING COMPANY
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POLARWIND
MARITIME S.A.
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for
and on behalf of
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for
and on behalf of
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SHIPPING
RIDER CO.
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TEMPEST
MARITIME INC.
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for
and on behalf of
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for
and on behalf of
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LAREDO
MARITIME INC.
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EPICURUS
SHIPPING COMPANY
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for
and on behalf of
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for
and on behalf of
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▇▇▇▇
SHIPMANAGEMENT CO.
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SOPREL
SHPMANAGEMENT INC.
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Dated: 2008
11
LENDERS
|
Lender
|
Lending
Office
|
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HSH
Nordbank ▇▇
|
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇-▇▇▇▇▇
▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Fax
No: ▇(▇▇) ▇▇ ▇▇ ▇▇ ▇▇▇▇▇
|
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Alpha
Bank A.E.
|
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇
▇▇▇
▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Fax
No: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
|
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Deutsche
Schiffsbank AG
|
▇▇▇▇▇▇▇
▇▇
▇-▇▇▇▇▇
▇▇▇▇▇▇
Fax
No: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
|
|
National
Bank of Greece S.A.
|
Bouboulinas
2 & ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇
▇▇ ▇▇▇▇▇▇▇
Fax
No: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
|
|
Fortis
Bank
|
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
Fax
No: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
|
12