FIRST AMENDED AND RESTATED OMNIBUS AGREEMENT AMONG CAPITAL MARITIME & TRADING CORP. CAPITAL GP L.L.C. CAPITAL PRODUCT OPERATING L.L.C. AND CAPITAL PRODUCT PARTNERS L.P.
Exhibit II
EXECUTION COPY
FIRST AMENDED AND RESTATED
AMONG
CAPITAL MARITIME & TRADING CORP.
CAPITAL GP L.L.C.
CAPITAL PRODUCT OPERATING L.L.C.
AND
TABLE OF CONTENTS
| Page | ||||
ARTICLE I |
||||
DEFINITIONS |
||||
Section 1.1 Definitions |
1 | |||
ARTICLE II |
||||
CAPITAL MARITIME RESTRICTED BUSINESS OPPORTUNITIES |
||||
Section 2.1 Capital Maritime Restricted Businesses |
6 | |||
Section 2.2 Permitted Exceptions |
7 | |||
ARTICLE III |
||||
PARTNERSHIP RESTRICTED BUSINESS OPPORTUNITIES |
||||
Section 3.1 Partnership Restricted Businesses |
8 | |||
Section 3.2 Permitted Exceptions |
8 | |||
ARTICLE IV |
||||
BUSINESS OPPORTUNITIES PROCEDURES |
||||
Section 4.1 Procedures |
9 | |||
Section 4.2 Scope Of Prohibition |
11 | |||
Section 4.3 Other Business Opportunity |
11 | |||
ARTICLE V |
||||
RIGHTS OF FIRST OFFER |
||||
Section 5.1 Rights Of First Offer |
12 | |||
Section 5.2 Procedures For Rights Of First Offer |
12 | |||
ARTICLE VI |
||||
INDEMNIFICATION |
||||
Section 6.1 Capital Maritime Indemnification |
13 | |||
Section 6.2 Limitation Regarding Indemnification |
13 | |||
Section 6.3 Indemnification Procedures |
14 | |||
- i -
| Page | ||||
ARTICLE VII |
||||
MISCELLANEOUS |
||||
Section 7.1 Choice Of Law |
15 | |||
Section 7.2 Submission To Jurisdiction |
15 | |||
Section 7.3 Waiver Of Jury Trial |
15 | |||
Section 7.4 Resolution of Disputes |
16 | |||
Section 7.5 Notice |
17 | |||
Section 7.6 Entire Agreement |
17 | |||
Section 7.7 Termination |
17 | |||
Section 7.8 Waiver; Effect Of Waiver Or Consent |
17 | |||
Section 7.9 Amendment Or Modification |
18 | |||
Section 7.10 Assignment |
18 | |||
Section 7.11 Counterparts |
18 | |||
Section 7.12 Severability |
18 | |||
Section 7.13 Gender, Parts, Articles And Sections |
18 | |||
Section 7.14 Further Assurances |
18 | |||
Section 7.15 Withholding Or Granting Of Consent |
18 | |||
Section 7.16 Laws And Regulations |
18 | |||
Section 7.17 Negotiation Of Rights Of Capital Maritime, Limited Partners,
Assignees, And Third Parties |
18 | |||
- ii -
THIS FIRST AMENDED AND RESTATED OMNIBUS AGREEMENT, dated and effective as of September 30,
2011 (this “Agreement”), is entered into by and among Capital Maritime & Trading Corp., a
Xxxxxxxx Islands corporation (“Capital Maritime”), Capital GP L.L.C., a Xxxxxxxx Islands
limited liability company (including any permitted successors and assigns under the MLP Agreement
(as defined herein), the “General Partner”), Capital Product Operating L.L.C., a Xxxxxxxx
Islands limited liability company (the “OLLC”), and Capital Product Partners L.P., a
Xxxxxxxx Islands limited partnership (the “MLP”) and amends and restates in its entirety
that certain Omnibus Agreement by and among the parties hereto, dated as of April 3, 2007.
R E C I T A L S:
1. The Parties desire by their execution of this Agreement to evidence their
understanding, as more fully set forth in Articles II and IV, with respect to (a) those business
opportunities that the Capital Maritime Entities (as defined herein) will not pursue during the
term of this Agreement and (b) the procedures whereby such business opportunities are to be offered
to the Partnership Group (as defined herein) and accepted or declined.
2. The Parties desire by their execution of this Agreement to evidence their
understanding, as more fully set forth in Articles III and IV, with respect to (a) those business
opportunities that the Partnership Group will not pursue during the term of this Agreement and (b)
the procedures whereby such business opportunities are to be offered to Capital Maritime and
accepted or declined.
3. The Parties desire by their execution of this Agreement to evidence their
understanding, as more fully set forth in Article V, with respect to (a) Capital Maritime’s right
of first offer relating to certain Tanker Assets (as defined herein) and (b) the MLP’s right of
first offer relating to certain Tanker Assets that Capital Maritime might own.
4. The Parties desire by their execution of this Agreement to evidence their
understanding, as more fully set forth in Article VI, with respect to certain indemnification
obligations of Capital Maritime.
In consideration of the premises and the covenants, conditions, and agreements contained
herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the following terms shall have the
respective meanings set forth below:
“Acquiring Party” has the meaning given such term in Section 4.1(a).
“Affiliate” means, with respect to any Person, any other Person that directly or
indirectly through one or more intermediaries controls, is controlled by or is under common
-1-
control with, the Person in question. As used herein, the term “control” means the
possession, direct or indirect, of the power to direct or cause the direction of the management and
policies of a Person, whether through ownership of voting securities, by contract or otherwise.
“Agreement” means this First Amended and Restated Omnibus Agreement, as it may be
amended, modified, or supplemented from time to time in accordance with Section 7.9 hereof.
“Bareboat Charter Agreement” means a contract to charter a Tanker of the type then
owned or controlled by a Partnership Group Member for an agreed period of time at a set rate per
day under which all voyage related costs, such as fuel and port dues, and all operating expenses,
including maintenance, crewing and insurance, are for the charterer’s account.
“Bareboat Charter Opportunity” means a potential opportunity to enter into a Bareboat
Charter Agreement.
“Board” means the Board of Directors of the MLP.
“Break-up Costs” means the aggregate amount of any and all additional taxes, flag
administration, financing, legal and other similar costs (except with respect to Section 2.2(b)(i)
where Break-up Costs shall be deemed to include only administrative costs associated with transfer
and re-flagging, including related legal costs) to (a) the Capital Maritime Entities that would be
required to transfer Tanker Assets acquired by the Capital Maritime Entities as part of a larger
transaction to a Partnership Group Member pursuant to Section 2.2(b)(i) or 2.2(c), or (b) the
Partnership Group that would be required to transfer Small Tanker Assets acquired by the
Partnership Group as part of a larger transaction to a Capital Maritime Entity pursuant to Section
3.2(b).
“Business Opportunity” means a Spot Charter Opportunity unless the applicable Tanker
is operating under a Bareboat Charter Agreement or a Period Charter Agreement, a Period Charter
Opportunity, a Bareboat Charter Opportunity or any other business opportunity that a Partnership
Group Member would reasonably be expected to be capable of pursuing, but excluding the opportunity
to enter a tanker vessel into a tanker pool.
“Business Opportunity Offer” has the meaning given such term in Section 4.3.
“Capital Maritime Entities” means Capital Maritime and any Person controlled, directly
or indirectly, by Capital Maritime other than the Partnership Entities.
“Change of Control” means, with respect to any Person (the “Applicable
Person”), any of the following events: (a) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of the Applicable
Person’s assets to any other Person, unless immediately following such sale, lease, exchange or
other transfer such assets are owned, directly or indirectly, by the Applicable Person; (b) the
consolidation or merger of the Applicable Person with or into another Person pursuant to a
transaction in which the outstanding Voting Securities of the Applicable Person are changed into or
exchanged for cash, securities or other property, other than any such transaction where (i) the
outstanding Voting Securities of the Applicable Person are changed into or exchanged for Voting
-2-
Securities of the surviving Person or its parent and (ii) the holders of the Voting Securities of the Applicable
Person immediately prior to such transaction own, directly or indirectly, not less than a majority
of the outstanding Voting Securities of the surviving Person or its parent immediately after such
transaction; and (c) a “person” or “group” (within the meaning of Section 13(d) or
Section 14(d)(2) of the Exchange Act), other than Capital Maritime or its Affiliates with respect
to the General Partner, being or becoming the “beneficial owner” (as defined in Rules 13d-3
and 13d-5 under the Exchange Act) of more than 50% of all of the then outstanding Voting Securities
of the Applicable Person, except in a merger or consolidation which would not constitute a Change
of Control under clause (b) above.
“Closing Date” means April 3, 2007, the date of the closing of the initial public
offering of common units representing limited partner interests in the MLP.
“Conflicts Committee” means the Conflicts Committee of the Board of Directors of the
MLP.
“Contribution Assets” has the meaning given such term in Section 6.1.
“Control” means the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise.
“Covered Environmental Losses” means all Losses suffered or incurred by the
Partnership Group by reason of, arising out of or resulting from:
(i) any violation or correction of violation of Environmental Laws; or
(ii) any event or condition relating to environmental or human health and safety
matters, in each case, associated with the ownership or operation by the Capital Maritime
Entities of the Contribution Assets (including, without limitation, the presence of
Hazardous Substances on, under, about or migrating to or from the Contribution Assets or the
disposal or release of, or exposure to, Hazardous Substances generated by or otherwise
related to operation of the Contribution Assets), including, without limitation, (a) the
cost and expense of any investigation, assessment, evaluation, monitoring, containment,
cleanup, repair, restoration, remediation or other corrective action required or necessary
under Environmental Laws, (b) the cost or expense of the preparation and implementation of
any closure, remedial, corrective action or other plans required or necessary under
Environmental Laws and (c) the cost and expense for any environmental or toxic tort
(including, without limitation, personal injury or property damage claims) pre-trial, trial
or appellate legal or litigation support work;
but only to the extent that such violation complained of under clause (i), or such events or
conditions included in clause (ii), occurred before the Closing Date; and, provided that, in no
event shall Losses to the extent arising from a change in any Environmental Law after the Closing
Date be deemed “Covered Environmental Losses.”
“Dispute” has the meaning given such term in Section 7.4.
-3-
“Environmental Laws” means all international, federal, state, foreign and local laws,
statutes, rules, regulations, treaties, conventions, orders, judgments and ordinances relating to
protection of natural resources, health and safety and the environment, each in effect and as
amended through the Closing Date.
“Event of Loss” means any of the following events: (a) the actual or constructive
total loss of a Small Tanker or the agreed or compromised total loss of a Small Tanker; (b) the
destruction of a Small Tanker; (c) the damage to a Small Tanker to an extent (determined in good
faith by the Board within ninety (90) days after the occurrence of such damage) as shall make
repair thereof uneconomical or shall render such Small Tanker permanently unfit for normal use
(other than obsolescence); or (d) the condemnation, confiscation, requisition, seizure, forfeiture
or other taking of title to or use of a Small Tanker that shall not be revoked within six months.
An Event of Loss shall be deemed to have occurred: (i) in the event of the destruction or other
actual total loss of a Small Tanker, on the date of such loss; (ii) in the event of a constructive,
agreed or compromised total loss of a Small Tanker, on the date of determination of such total loss
pursuant to the relevant insurance policy; (iii) in the case of any event referred to in clause (c)
above, upon such determination by the Board; or (iv) in the case of any event referred in clause
(d) above, on the date six months after the occurrence of such event.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“First Offer Negotiation Period” has the meaning given such term in Section 5.2.
“General Partner” is defined in the introduction to this Agreement.
“Hazardous Substances” means (a) substances defined in or regulated under applicable
Environmental Laws; (b) petroleum and petroleum products, including crude oil and any fractions
thereof; (c) natural gas, synthetic gas and any mixtures thereof; (d) any substances with respect
to which a federal, state, foreign or local agency requires environmental investigation,
monitoring, reporting or remediation; (e) any hazardous waste or solid waste, within the meaning of
any Environmental Law; (f) any solid, hazardous, dangerous or toxic chemical, material, waste or
substance, within the meaning of and regulated by any Environmental Law; (g) any radioactive
material; and (h) any asbestos-containing materials.
“Losses” means losses, damages, liabilities, claims, demands, causes of action,
judgments, settlements, fines, penalties, costs and expenses (including, without limitation, court
costs and reasonable attorneys’ and experts’ fees) of any and every kind or character;
provided, however, that such term shall not include any special, indirect,
incidental or consequential damages.
“MLP” is defined in the introduction to this Agreement.
“MLP Agreement” means the Second Amended and Restated Agreement of Limited Partnership
of the MLP, dated as of February 22, 2010, as amended on September 30, 2011, as such agreement is
in effect on the date of this Agreement, to which reference is hereby made for all purposes of this
Agreement. No amendment or modification to the MLP Agreement subsequent to the date of this
Agreement shall be given effect for purposes of this Agreement unless consented to by each of the
Parties to this Agreement.
-4-
“Offer” has the meaning given such term in Section 4.1.
“Offered Assets” has the meaning given such term in Section 4.1.
“Offeree” has the meaning given such term in Section 4.1.
“Offer Period” has the meaning given such term in Section 4.1.
“OLLC” is defined in the introduction to this Agreement.
“Opportunity Period” means ten (10) calendar days from the time a Capital Maritime
Entity notifies the Board or the General Partner of a Business Opportunity.
“Parties” means the parties to this Agreement and their successors and permitted
assigns.
“Partnership Entities” means the General Partner, the MLP, the OLLC and any Person
controlled by any such entity.
“Partnership Group” means the MLP, the OLLC and any Person controlled by any such
entity.
“Partnership Group Member” means any Person in the Partnership Group.
“Period Charter Agreement” means a contract to charter a Tanker of the type then owned
or controlled by a Partnership Group Member for an agreed period of time in excess of twelve months
at a set rate per day.
“Period Charter Opportunity” means a potential opportunity to enter into a Period
Charter Agreement.
“Person” means an individual, corporation, partnership, joint venture, trust, limited
liability company, unincorporated organization or any other entity.
“Potential Transferee” has the meaning given such term in Section 5.2.
“Qualifying Contract” means a time or bareboat charter with a remaining duration,
excluding any extension options, of at least twelve (12) months at the earliest of the following
dates: (a) the date the Tanker to which such time or bareboat charter is attached is first acquired
by a Capital Maritime Entity and (b) the date on which a Tanker owned by Capital Maritime Entity is
put under such time or bareboat charter.
“Re-Charter” means the charter of a Tanker pursuant to a Qualifying Contract in the
event that its existing charter expires or is terminated early.
“Replacement Small Tanker” means any Small Tanker that replaces any Small Tanker upon
an Event of Loss.
“Sale Assets” has the meaning given such term in Section 5.2.
-5-
“Small Tanker” means any product or crude oil tanker with a carrying capacity of less
than 30,000 dwt.
“Small Tanker Assets” means any Small Tanker and its related charter.
“Spot Charter Agreement” means a contract to charter a Tanker of the type then owned
or controlled by a Partnership Group Member for an agreed period of time of up to twelve (12)
months at a set rate per day under which the vessel operator pays for the vessel’s voyage expenses,
such as fuel and port dues, and the owner is responsible for providing crew and paying operating
expenses.
“Spot Charter Opportunity” means a potential opportunity to enter into a Spot Charter
Agreement.
“Tanker” means any product or crude oil tanker with a carrying capacity greater than
or equal to 30,000 dwt.
“Tanker Assets” means any Tanker and its related charter.
“Transfer” means any transfer, assignment, sale or other disposition of any Tanker by
a Capital Maritime Entity or of any Tanker or Small Tanker by a Partnership Group Member;
provided, however, that such term shall not include: (a) transfers, assignments,
sales or other dispositions from a Capital Maritime Entity to another Capital Maritime Entity, or
from a Partnership Group Member to another Partnership Group Member; (b) transfers, assignments,
sales or other dispositions pursuant to the terms of any related charter or other agreement with a
charter party; (c) transfers, assignments, sales or other dispositions pursuant to Article II or
III of this Agreement; or (d) grants of security interests in or mortgages or liens on such Tanker
Assets or Small Tanker Assets in favor of a bona fide third party lender (but not the foreclosing
of any such security interest, mortgage or lien).
“Transfer Notice” has the meaning given such term in Section 5.2.
“Transferring Party” has the meaning given such term in Section 5.2.
“Voting Securities” means securities of any class of Person entitling the holders
thereof to vote in the election of members of the board of directors or other similar governing
body of the Person.
ARTICLE II
CAPITAL MARITIME RESTRICTED BUSINESS OPPORTUNITIES
Section 2.1 Capital Maritime Restricted Businesses. Subject to Section 7.7 and except as
permitted by Section 2.2, each of the Capital Maritime Entities shall be prohibited from acquiring,
owning or operating Tankers under Qualifying Contracts.
-6-
Section 2.2 Permitted Exceptions. Notwithstanding any provision of Section 2.1 to the
contrary, the Capital Maritime Entities may engage in the following activities under any of the
following circumstances:
(a) acquiring, owning, chartering or operating Tankers that are not subject to a
Qualifying Contract;
(b) (i) acquiring one or more Tankers that are subject to Qualifying Contracts after
the date of this Agreement if the Capital Maritime Entity offers to sell to the Partnership
Group Members each such Tanker Asset for the acquisition price at the time it is acquired
plus any applicable Break-up Costs, in accordance with the procedures set forth in Section
4.1; or (ii) putting a Tanker that the Capital Maritime Entity owns or operates under a
Qualifying Contract if the Capital Maritime Entity offers to sell to the Partnership Group
Members each such Tanker for its fair market value at the time it is made subject to a
Qualifying Contract and, in each case, at each renewal or extension of that Qualifying
Contract, in accordance with the procedures set forth in Section 4.1;
(c) acquiring one or more Tankers that are subject to Qualifying Contracts as part
of the acquisition of a controlling interest in a business or package of assets and owning
and operating or chartering those Tanker Assets provided, however, that:
(i) if less than a majority of the value of the total assets or business
acquired is attributable to those Tanker Assets, as determined in good faith by the
board of directors of Capital Maritime, the Capital Maritime Entity must offer to
sell to the Partnership Group Members such Tanker Assets for fair market value plus
any applicable Break-up Costs in accordance with the procedures set forth in Section
4.1.
(ii) if a majority or more of the value of the total assets or business
acquired is attributable to those Tanker Assets, as determined in good faith by the
board of directors of Capital Maritime, Capital Maritime shall notify the MLP in
writing of the proposed acquisition. The MLP shall, not later than the tenth
calendar day following receipt of such notice, notify Capital Maritime if any of the
Partnership Group Members wish to acquire the Tanker Assets forming part of the
business or package of assets in cooperation and simultaneously with Capital
Maritime acquiring the other assets forming part of that business or package of
assets. If the MLP does not notify Capital Maritime of its intent to pursue the
acquisition within ten (10) calendar days, Capital Maritime may proceed with the
acquisition as provided in subsection (i) above.
(d) acquiring a non-controlling interest in any company, business or pool of
assets;
(e) acquiring, owning or operating Tankers subject to a Qualifying Contract that
are subject to an offer to purchase by a Capital Maritime Entity as described in Section
2.2(b) or (c), in each case, pending the applicable offer of such Tanker Asset to the
Partnership Group Members and the Partnership Group Members’ determination
-7-
pursuant to
Section 4.1 of whether to purchase the Tanker Assets and, if the Partnership Group Members
determine to purchase such Tanker Asset, pending the closing of such purchase;
(f) acquiring, owning or operating Tankers subject to a Qualifying Contract that
are subject to an offer to purchase by a Capital Maritime Entity as described in Section
2.2(b) or (c), in each case, if the Board has elected to cause any Partnership Group Member
to acquire or operate such Tanker Assets;
(g) providing ship management services relating to any vessel whatsoever, including
to Tanker Assets, owned by any Capital Maritime Entity; or
(h) acquiring, operating or chartering Tankers that are subject to Qualifying
Contracts if the Board has previously advised Capital Maritime that it consents to such
acquisition, operation or charter.
ARTICLE III
PARTNERSHIP RESTRICTED BUSINESS OPPORTUNITIES
Section 3.1 Partnership Restricted Businesses. Subject to Section 7.7 and except as
permitted by Section 3.2, each Partnership Group Member shall be prohibited from acquiring, owning
or operating or chartering Small Tankers.
Section 3.2 Permitted Exceptions. Notwithstanding any provision of Section 3.1 to the
contrary, the Partnership Group Members may engage in the following activities under any of the
following circumstances:
(a) owning, chartering or operating any Small Tanker Assets so owned, operated or
chartered at the date of this Agreement, including any Replacement Small Tanker;
(b) acquiring one or more Small Tanker Assets as part of the acquisition of a
controlling interest in a business or package of assets and owning and operating or
chartering those vessels, provided, however, that:
(i) if less than a majority of the value of the total assets or business
acquired is attributable to Small Tanker Assets, as determined in good faith by the
MLP, the Partnership Group Member must offer to sell such Small Tanker Assets and
related charters to Capital Maritime or any other Capital Maritime Entity for
their fair market value plus any applicable Break-up Costs in accordance with
the procedures set forth in Section 4.1.
(ii) if a majority or more of the value of the total assets or business
acquired is attributable to Small Tanker Assets, as determined in good faith by the
MLP, the Partnership Group Members shall notify Capital Maritime in writing of the
proposed acquisition. Capital Maritime shall, not later than the tenth calendar day
following receipt of such notice, notify the Partnership Group Members if it
-8-
or any
other Capital Maritime Entity wishes to acquire the Small Tanker Assets forming part
of the business or package of assets in cooperation and simultaneously with the
Partnership Group Members acquiring the other assets forming part of that business
or package of assets. If Capital Maritime does not notify the Partnership Group
Member of its intent to pursue the acquisition within ten (10) calendar days, the
Partnership Group Member may proceed with the acquisition as provided in subsection
(i) above.
(c) acquiring a non-controlling interest in any company, business or pool of
assets;
(d) acquiring, owning, operating or chartering any Small Tanker Assets that are
subject to an offer to purchase by Capital Maritime as described in Section 3.2(b) pending
the applicable offer of such Small Tanker Assets to Capital Maritime and Capital Maritime’s
determination pursuant to Section 4.1 whether to purchase the Small Tanker Assets and, if
Capital Maritime elects to purchase or cause any Capital Maritime Entity to purchase such
Small Tanker Assets, pending the closing of such purchase; and
(e) acquiring, operating or chartering Small Tankers if Capital Maritime has
previously advised the MLP that it consents to such acquisition, operation or charter.
ARTICLE IV
BUSINESS OPPORTUNITIES PROCEDURES
Section 4.1 Procedures. In the event that (a) a Partnership Group Member acquires Small
Tanker Assets in accordance with Section 3.2(b), or (b) a Capital Maritime Entity acquires Tanker
Assets in accordance with Section 2.2(b)(i) or (c), then (i) simultaneously or in any event not
later than thirty (30) calendar days after the consummation of the acquisition (in the case of
clause (a) or (b) above), such acquiring Party (the “Acquiring Party”) shall notify (a)
Capital Maritime, in the case of an acquisition by a Partnership Group Member or (b) the Board, in
the case of an acquisition by a Capital Maritime Entity and offer such party to be notified (each
an “Offeree”) the opportunity for any Capital Maritime Entity or Partnership Group Member,
as applicable, to purchase such Small Tanker Assets or Tanker Assets, as applicable (the
“Offered Assets”), for their fair market value (or, in the case of an acquisition in
accordance with Section 2.2(b)(i), the acquisition price) (plus, in the case of an acquisition in
accordance with Section 2.2(b)(i) or 2.2(c) or 3.2(b), any applicable Break-up Costs), in each case
on commercially reasonable terms in accordance with this Section (the “Offer”). The Offer
shall set forth the Acquiring Party’s proposed terms relating to the purchase of the Offered Assets
by the
applicable Capital Maritime Entity or Partnership Group Member, including any liabilities to
be assumed by the applicable Capital Maritime Entity or Partnership Group Member as part of the
Offer. As soon as practicable after the Offer is made, the Acquiring Party will deliver to the
Offeree all information prepared by or on behalf of or in the possession of such Acquiring Party
relating to the Offered Assets and reasonably requested by the Offeree. As soon as practicable,
but in any event, within thirty (30) calendar days after receipt of such notification, the Offeree
shall notify the Acquiring Party in writing that either:
-9-
(a) Capital Maritime has elected not to purchase (or not to cause any of its
permitted Affiliates to purchase) or the Board has elected not to cause any Partnership
Group Member to purchase, as applicable, such Offered Assets, in which event the Acquiring
Party and its Affiliates shall, subject to the other terms of this Agreement (including
Section 2.2(b)(ii)), be forever free to continue to own, operate and charter such Offered
Assets; or
(b) Capital Maritime has elected to purchase (or to cause any of its permitted
Affiliates to purchase) or the Board has elected to cause any Partnership Group Member to
purchase, as applicable, such Offered Assets, in which event the following procedures shall
be followed:
(i) After the receipt of the Offer by the Offeree, the Acquiring Party and
the Offeree shall negotiate in good faith, the fair market value (and any applicable
Break-up Costs), of the Offered Assets that are subject to the Offer and the other
terms of the Offer on which the Offered Assets will be sold to the applicable
Capital Maritime Entity or Partnership Group Member. If the Acquiring Party and the
Offeree agree on the fair market value (and any applicable Break-up Costs), of the
Offered Assets that are subject to the Offer and the other terms of the Offer during
the thirty (30) day period (the “Offer Period”) after receipt by the
Acquiring Party of Capital Maritime’s election to purchase (or election to cause any
of its permitted Affiliates to purchase) or of the Board’s election to cause any
Partnership Group Member to purchase, as applicable, the Offered Assets, Capital
Maritime shall purchase (or cause any of its permitted Affiliates to purchase) or
the Board shall cause any Partnership Group Member to purchase, as applicable, the
Offered Assets on such terms as soon as commercially practicable after such
agreement has been reached.
(ii) If the Acquiring Party and the Offeree are unable to agree on the fair
market value (and any applicable Break-up Costs), of the Offered Assets that are
subject to the Offer or on any other terms of the Offer during the Offer Period, the
Acquiring Party and the Offeree will engage an independent ship broker and/or an
independent investment banking firm prior to the end of the Offer Period to
determine the fair market value (and any applicable Break-up Costs), of the Offered
Assets and/or the other terms on which the Acquiring Party and the Offeree are
unable to agree. In determining the fair market value of the Offered Assets and
other terms on which the Offered Assets are to be sold, the ship broker or
investment banking firm, as applicable, will have access to the proposed sale and
purchase values and terms for the Offer submitted by the Acquiring Party and
the Offeree, respectively, and to all information prepared by or on behalf of
the Acquiring Party relating to the Offered Assets and reasonably requested by such
ship broker or investment banking firm. Such ship broker or investment banking firm
will determine the fair market value (and any applicable Break-up Costs) of the
Offered Assets and/or the other terms on which the Acquiring Party and the Offeree
are unable to agree within thirty (30) calendar days of its engagement and furnish
the Acquiring Party and the Offeree its determination. The fees and expenses of the
ship broker or investment banking firm, as applicable, will be
-10-
divided equally
between the Acquiring Party and the Offeree. Upon receipt of such determination,
the Offeree will have the option, but not the obligation:
(A) in the case that the Offeree is Capital Maritime, to purchase
or cause any of its permitted Affiliates to purchase, or in the case that
the Offeree is the Board, to cause any Partnership Group Member to purchase
the Offered Assets for the fair market value (and any applicable Break-up
Costs), and on the other terms determined by the ship broker or investment
banking firm, as soon as commercially practicable after determinations have
been made; or
(B) in the case that the Offeree is Capital Maritime, to elect not
to cause any of its permitted Affiliates to purchase, or in the case that
the Offeree is the Board, not to cause any Partnership Group Member to
purchase such Offered Assets, in which event the Acquiring Party and its
Affiliates shall, subject to the other terms of this Agreement (including
Section 2.2(b)(ii)), be forever free to continue to own, operate and charter
such Offered Assets.
Section 4.2 Scope Of Prohibition. If any Party or its Affiliates engages in the ownership
or operation of Tankers under Qualifying Contract in the case of a Capital Maritime Entity, or
Small Tankers in the case of a Partnership Group Member, pursuant to any of the exceptions
described in Section 2.2 or 3.2, as applicable, the Party and its Affiliates may not subsequently
expand that portion of their business other than pursuant to the exceptions contained in such
Section 2.2 or 3.2. Except as otherwise provided in this Agreement or the MLP Agreement, each
party and its Affiliates shall be free to engage in any business activity whatsoever, including
those that may be in direct competition with the Capital Maritime Entities or the Partnership
Group.
Section 4.3 Other Business Opportunity.
(a) If a Capital Maritime Entity becomes aware of a Business Opportunity, whether
through an officer or director shared with a Partnership Entity or otherwise, then Capital
Maritime shall notify and offer (or cause the relevant Capital Maritime Entity to notify and
offer) such Business Opportunity to the Board or the General Partner in accordance with this
Section 4.3 (the “Business Opportunity Offer”). The Business Opportunity Offer
shall set forth the proposed terms relating to such Business Opportunity. As soon as
practicable after the Business Opportunity Offer is made, Capital Maritime (or the relevant
Capital Maritime Entity) will deliver to the Board or the
General Partner all information prepared by or on behalf of or in the possession of
Capital Maritime (or the relevant Capital Maritime Entity) relating to such Business
Opportunity and reasonably requested by the Board or the General Partner. As soon as
practicable, but in any event within the Opportunity Period, the Board or the General
Partner shall notify the Capital Maritime Entity that made the Business Opportunity Offer in
writing that either:
-11-
(i) the Board or the General Partner has elected not to cause any
Partnership Group Member to pursue such Business Opportunity, in which event any
Capital Maritime Entity shall, subject to the other terms of this Agreement, be
forever free to pursue such Business Opportunity; or
(ii) the Board or the General Partner has elected to cause any Partnership
Group Member to pursue such Business Opportunity, in which event Capital Maritime
shall refrain, and shall cause all other Capital Maritime Entities to refrain, from
pursuing such Business Opportunity until such time as the Partnership Group abandons
its pursuit of such Business Opportunity.
(b) Capital Maritime shall refrain, and shall cause all other Capital Maritime
Entities to refrain, from pursuing such Business Opportunity from the date a Capital
Maritime Entity becomes aware of such Business Opportunity until the Board or the General
Partner has been notified of the Business Opportunity and the earlier of (i) the time the
Opportunity Period for such Business Opportunity has lapsed without the Board or the General
Partner making an election as set forth in Section 4.3(a) and (ii) the time the Board or the
General Partner makes an election not to pursue such Business Opportunity as set forth in
Section 4.3(a)(i).
(c) If the Board or the General Partner does not make an election as set forth in
Section 4.3(a) within the Opportunity Period, then any Capital Maritime Entity may pursue
such Business Opportunity.
ARTICLE V
RIGHTS OF FIRST OFFER
Section 5.1 Rights Of First Offer. (a) The Partnership Group hereby grants Capital
Maritime a right of first offer on any proposed Transfer by any Partnership Group Member of any
Tanker Assets or Small Tanker Assets owned or acquired by any Partnership Group Member. The
Capital Maritime Entities hereby grant the MLP a right of first offer on any proposed Transfer or
Re-Charter of any Tanker Assets owned or acquired by any Capital Maritime Entity.
(b) The Parties acknowledge that all potential Transfers or Re-Charter of Tanker
Assets pursuant to this Article V are subject to obtaining any and all written consents of
governmental authorities and other non-affiliated third parties and to the terms of all
existing agreements in respect of such Tanker Assets, as applicable.
Section 5.2 Procedures For Rights Of First Offer. In the event that a Partnership Group Member
or a Capital Maritime Entity (as applicable, the “Transferring Party”) proposes to Transfer
or Re-Charter any Tanker Assets or Small Tanker Assets (the “Sale Assets”), prior to
engaging in any negotiation for such Transfer with any non-affiliated third party or otherwise
offering to Transfer the Sale Assets to any non-affiliated third party, such Transferring Party
shall give Capital Maritime or the MLP, as applicable (the “Potential Transferee”), written
notice setting forth all material terms and conditions (including, without
-12-
limitation, the purchase
price (in the event of a Transfer) or the terms of the charter agreement (in the event of a
Re-Charter) and a description of the Sale Asset(s) on which such Transferring Party desires to
Transfer or Re-Charter the Sale Assets (the “Transfer Notice”). The Transferring Party
then shall be obligated to negotiate in good faith for a ten (10) day period following the delivery
by the Transferring Party of the Transfer Notice (the “First Offer Negotiation Period”) to
reach an agreement for the Transfer or Re-Charter of such Sale Assets to the Potential Transferee
or any of its Affiliates on the terms and conditions set forth in the Transfer Notice. If no such
agreement with respect to the Sale Assets is reached during the First Offer Negotiation Period, and
the Transferring Party has not Transferred, or agreed in writing to Transfer, such Sale Assets to a
third party within 180 calendar days after the end of the First Offer Negotiation Period on terms
generally no less favorable to the Transferring Party than those include in the Transfer Notice,
then the Transferring Party shall not thereafter Transfer any of the Sale Assets without first
offering such assets to the applicable Potential Transferee in the manner provided above.
ARTICLE VI
INDEMNIFICATION
Section 6.1 Capital Maritime Indemnification. Subject to the provisions of Section 6.2
and Section 6.3, Capital Maritime shall indemnify, defend and hold harmless the Partnership Group
from and against:
(a) any Covered Environmental Losses relating to the assets contributed by the
Capital Maritime Entities to the Partnership Group prior to or on the Closing Date (the
“Contribution Assets”) to the extent that Capital Maritime is notified by the MLP of
any such Covered Environmental Losses within five (5) years after the Closing Date; (b)
Losses to the Partnership Group arising from (i) the failure of the Partnership Group,
immediately after the Closing Date, to be the owner of such valid leasehold interests or fee
ownership interests in and to the Contribution Assets as are necessary to enable the
Partnership Entities to own and operate the Contribution Assets in substantially the same
manner that the Contribution Assets were owned and operated by the Capital Maritime Entities
immediately prior to the Closing Date or (ii) the failure of the Partnership Entities to
have by the Closing Date any consent or governmental permit necessary to allow the
Partnership Entities to own or operate the Contribution Assets in substantially the same
manner that the Contribution Assets were owned and operated by the Capital Maritime Entities
immediately prior to the Closing Date, in each of clauses (i) and (ii) above, to the extent
that Capital Maritime is notified by the MLP of such Losses within three (3) years after the
Closing Date; and (d) all federal, state, foreign and local income tax liabilities
attributable to the operation of the Contribution Assets prior to the Closing
Date, including any such income tax liabilities of the Capital Maritime Entities that
may result from the consummation of the formation transactions for the Partnership Group and
the MLP, but excluding any federal, state, foreign and local income taxes reserved on the
books of the Partnership Group on the Closing Date.
Section 6.2 Limitation Regarding Indemnification. The aggregate liability of Capital
Maritime under Section 6.1(a) above shall not exceed $5,000,000 million. Furthermore,
-13-
no claim may
be made against Capital Maritime for indemnification pursuant to Section 6.1(a) unless the
aggregate dollar amount of all claims for indemnification pursuant to such section shall exceed
$500,000, in which case Capital Maritime shall be liable for claims for indemnification only to the
extent such aggregate amount exceeds $500,000.
Section 6.3 Indemnification Procedures. (a) The Partnership Group Members agree that
within a reasonable period of time after they become aware of facts giving rise to a claim for
indemnification pursuant to Section 6.1, they will provide notice thereof in writing to Capital
Maritime specifying the nature of and specific basis for such claim.
(b) Capital Maritime shall have the right to control all aspects of the defense of
(and any counterclaims with respect to) any claims brought against the Partnership Group
that are covered by the indemnification set forth in Section 6.1, including, without
limitation, the selection of counsel, determination of whether to appeal any decision of any
court and the settling of any such matter or any issues relating thereto; provided,
however, that no such settlement shall be entered into without the consent (which
consent shall not be unreasonably withheld) of the Partnership Group unless it includes a
full release of the Partnership Group from such matter or issues, as the case may be.
(c) The Partnership Group Members agree to cooperate fully with Capital Maritime
with respect to all aspects of the defense of any claims covered by the indemnification set
forth in Section 6.1, including, without limitation, the prompt furnishing to Capital
Maritime of any correspondence or other notice relating thereto that the Partnership Group
may receive, permitting the names of the members of the Partnership Group to be utilized in
connection with such defense, the making available to Capital Maritime of any files, records
or other information of the Partnership Group that Capital Maritime considers relevant to
such defense and the making available to Capital Maritime of any employees of the
Partnership Group; provided, however, that in connection therewith Capital
Maritime agrees to use reasonable efforts to minimize the impact thereof on the operations
of the Partnership Group and further agrees to maintain the confidentiality of all files,
records and other information furnished by a Partnership Group Member pursuant to this
Section 6.3. In no event shall the obligation of the Partnership Group to cooperate with
Capital Maritime as set forth in the immediately preceding sentence be construed as imposing
upon the Partnership Group an obligation to hire and pay for counsel in connection with the
defense of any claims covered by the indemnification set forth in this Article VI;
provided, however, that the Partnership Group Members may, at their own
option, cost and expense, hire and pay for counsel in connection with any such defense.
Capital Maritime agrees to keep any such counsel hired by the Partnership Group reasonably
informed as to the status of any such defense (including providing such counsel with such
information related to any such defense as
such counsel may reasonably request) but Capital Maritime shall have the right to
retain sole control over such defense.
In determining the amount of any Loss for which any of the members of the Partnership Group is
entitled to indemnification under this Agreement, the gross amount of the indemnification will be
reduced by (i) any insurance proceeds realized by the Partnership Group, and such correlative
insurance benefit shall be net of any incremental insurance premium that becomes due and
-14-
payable by
the Partnership Group as a result of such claim, and (ii) all amounts recovered by the Partnership
Group under contractual indemnities from third Persons. The Partnership hereby agrees to use
commercially reasonable efforts to realize any applicable insurance proceeds or amounts recoverable
under such contractual indemnities; provided, however, that the costs and expenses
(including, without limitation, court costs and reasonable attorneys’ fees) of the Partnership
Group in connection with such efforts shall be promptly reimbursed by Capital Maritime in advance
of any determination of whether such insurance proceeds or other amounts will be recoverable.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Choice Of Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
Section 7.2 Submission To Jurisdiction. Each of the parties hereto hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction and venue of the United States
District Court for the Southern District of New York and in the courts hearing appeals therefrom
unless no basis for federal jurisdiction exists, in which event each party hereto irrevocably
consents to the exclusive jurisdiction and venue of the Supreme Court of the State of New York, New
York County, and the courts hearing appeals therefrom, for any action, suit or proceeding arising
out of or relating to this Agreement and the transactions contemplated hereby. Each of the parties
hereto irrevocably and unconditionally waives, and agrees not to assert, by way of motion, as a
defense, counterclaim or otherwise, in any such action, suit or proceeding, any claim that such
party is not personally subject to the jurisdiction of the aforesaid courts for any reason, other
than the failure to serve process in accordance with this Section 7.2, that it or its property is
exempt or immune from jurisdiction of any such court or from any legal process commenced in such
courts (whether through service of notice, attachment prior to judgment, attachment in aid of
execution of judgment, execution of judgment or otherwise), and to the fullest extent permitted by
applicable law, that the action, suit or proceeding in any such court is brought in an inconvenient
forum, that the venue of such action, suit or proceeding is improper, or that this Agreement, or
the subject matter hereof, may not be enforced in or by such courts and further irrevocably waives,
to the fullest extent permitted by applicable law, the benefit of any defense that would hinder,
xxxxxx or delay the levy, execution or collection of any amount to which the party is entitled
pursuant to the final judgment of any court having jurisdiction. Each of the parties hereto
expressly acknowledges that the foregoing waivers are intended to be irrevocable under the laws of
the State of New York and of the United States of America; provided, that consent by the parties
hereto to jurisdiction and service contained in this Section
7.2 is solely for the purpose referred to in this Section 7.2 and shall not be deemed to be a
general submission to said courts or in the State of New York other than for such purpose.
Section 7.3 Waiver Of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE
OF ACTION (A) ARISING UNDER THIS AGREEMENT OR (B) IN ANY WAY CONNECTED WITH OR
-15-
RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE
TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN
CONTRACT, TORT, EQUITY, OR OTHERWISE.
Section 7.4 Resolution of Disputes.
(a) Any dispute, claim, or controversy arising out of or relating to Articles II, III, IV
and V of this Agreement (a “Dispute”) shall be resolved in accordance with the procedures
set forth in this Section 7.4. These procedures shall be the sole and exclusive process for the
resolution of any such Dispute.
(b) Upon the written request of either party, the parties shall endeavor to settle the
Dispute in an amicable manner by mediation administered by the American Arbitration Association
under its Commercial Mediation Rules then in effect, except as modified herein. The mediator shall
be selected by the parties hereto within five (5) days of the request for mediation. If the
parties are unable to agree upon a mediator within five (5) days of the request for mediation, the
mediator shall be selected by the American Arbitration Association. If the Dispute has not been
resolved by mediation within ten (10) days of appointment of a mediator, either party may initiate
arbitration as provided in this Section 7.4.
(c) Any Dispute not resolved through the procedures set forth in Section 7.4(b) shall be
finally settled by arbitration administered by the American Arbitration Association under its
Commercial Arbitration Rules then in effect, except as modified herein. However, if a party has
requested the other to participate in the procedures set forth in Section 7.4(b) above and the
other has failed to participate, the requesting party may initiate arbitration immediately.
(d) The arbitration shall be held, and the award rendered in, New York, New York. The
language of the arbitration shall be English, but documents or testimony may be submitted in other
language if a translation is provided. There shall be one arbitrator selected jointly by the
parties within ten (10) days of respondent’s receipt of claimant’s demand for arbitration. If an
arbitrator is not jointly selected by the parties within such ten-day period, such arbitrator will
be selected within ten (10) days by the American Arbitration Association under its Commercial
Arbitration Rules. The hearing shall be held no later than ninety (90) days following the
appointment of the arbitrator. The arbitrator shall have no authority to amend or modify any of
the terms of this Agreement. The arbitrator shall have ten (10) business days from the closing
statements or submission of post-hearing briefs by the parties to render his or her decision.
Either party may apply to any court having jurisdiction hereof and seek injunctive relief in order
to maintain the status quo until such time as the arbitration award is rendered or the controversy
is otherwise resolved. The award shall be final and binding. The arbitration
shall be governed by the United States Arbitration Act, 9 U.S.C. §§ 1-16. Judgment upon any
award may be entered by any court having jurisdiction thereof.
(e) Except to the extent necessary in connection with a proceeding relating to the
arbitration or an arbitration award contemplated by this Section 7.4, information concerning (1)
any documentary or other evidence given by a party or witness in the arbitration or (2) the
-16-
arbitration award may not be disclosed by the arbitral tribunal, the administrator, any party, its
counsel or any other person or entity connected to the proceeding or related arbitration or
judicial proceeding unless required to do so by contract, by law, or by a competent court or
regulatory body, and then only to the extent of disclosing no more than that which is contractually
or legally required. Any arbitrator shall be required to agree to treat as confidential the
information outlined in clauses (1) and (2) of this Section 7.4(e) to the extent set forth in this
Section 7.4(e). Following the resolution of or final arbitral decision made with respect to any
Dispute, each party shall in good faith cooperate with the other party if such other party requires
documentation to demonstrate to a third party that any Dispute that has been resolved.
Section 7.5 Notice. All notices or requests or consents provided for or permitted to be
given pursuant to this Agreement must be in writing and must be given by depositing same in the
mail, addressed to the Person to be notified, postpaid, and registered or certified with return
receipt requested or by delivering such notice in person or by private-courier, prepaid, or by
telecopier to such party. Notice given by personal delivery or mail shall be effective upon actual
receipt. Couriered notices shall be deemed delivered on the date the courier represents that
delivery will occur. Notice given by telecopier shall be effective upon actual receipt if received
during the recipient’s normal business hours, or at the beginning of the recipient’s next business
day after receipt if not received during the recipient’s normal business hours. All notices to be
sent to a party pursuant to this Agreement shall be sent to or made at the address set forth below
such party’s signature to this Agreement, or at such other address as such party may stipulate to
the other parties in the manner provided in this Section.
Section 7.6 Entire Agreement. This Agreement constitutes the entire agreement of the
parties relating to the matters contained herein, superseding all prior contracts or agreements,
whether oral or written, relating to the matters contained herein.
Section 7.7 Termination. Upon a Change of Control of the General Partner or of the MLP,
the provisions of Articles II, III, IV and V of this Agreement (but not less than all of such
Articles) shall terminate immediately. Upon a Change of Control of Capital Maritime, the
provisions of Articles II, III, IV and V of this Agreement (but not less than all of such Articles)
shall terminate at the time that is one year following the date of the Change of Control of Capital
Maritime.
Section 7.8 Waiver; Effect Of Waiver Or Consent. Any party hereto may (a) extend the time
for the performance of any obligation or other act of any other party hereto or (b) waive
compliance with any agreement or condition contained herein. Except as otherwise specifically
provided herein, any such extension or waiver shall be valid only if set forth in a written
instrument duly executed by the party or parties to be bound thereby; provided,
however, that the MLP and the OLLC may not, without the prior approval of the Conflicts
Committee, agree to any extension or waiver of this Agreement that, in the reasonable discretion of
the
Board, will adversely affect the holders of common units of the MLP. No waiver or consent,
express or implied, by any party of or to any breach or default by any Person in the performance by
such Person of its obligations hereunder shall be deemed or construed to be a waiver or consent of
or to any other breach or default in the performance by such Person of the same or any other
obligations of such Person hereunder. Failure on the part of a party to complain of any act of any
Person or to declare any Person in default, irrespective of how long such failure
-17-
continues, shall
not constitute a waiver by such party of its rights hereunder until the applicable statute of
limitations period has run.
Section 7.9 Amendment Or Modification. This Agreement may be amended or modified from
time to time only by the written agreement of all the parties hereto; provided,
however, that the MLP and the OLLC may not, without the prior approval of the Conflicts
Committee, agree to any amendment or modification of this Agreement that, in the reasonable
discretion of the Board, will adversely affect the holders of common units of the MLP.
Section 7.10 Assignment. No party shall have the right to assign its rights or
obligations under this Agreement without the consent of the other parties hereto.
Section 7.11 Counterparts. This Agreement may be executed in any number of counterparts
with the same effect as if all signatory parties had signed the same document. All counterparts
shall be construed together and shall constitute one and the same instrument.
Section 7.12 Severability. If any provision of this Agreement or the application thereof
to any Person or circumstance shall be held invalid or unenforceable to any extent, the remainder
of this Agreement and the application of such provision to other Persons or circumstances shall not
be affected thereby and shall be enforced to the greatest extent permitted by law.
Section 7.13 Gender, Parts, Articles And Sections. Whenever the context requires, the
gender of all words used in this Agreement shall include the masculine, feminine and neuter, and
the number of all words shall include the singular and plural. All references to Article numbers
and Section numbers refer to Articles and Sections of this Agreement.
Section 7.14 Further Assurances. In connection with this Agreement and all transactions
contemplated by this Agreement, each signatory party hereto agrees to execute and deliver such
additional documents and instruments and to perform such additional acts as may be necessary or
appropriate to effectuate, carry out and perform all of the terms, provisions and conditions of
this Agreement and all such transactions.
Section 7.15 Withholding Or Granting Of Consent. Each party may, with respect to any
consent or approval that it is entitled to grant pursuant to this Agreement, grant or withhold such
consent or approval in its sole and uncontrolled discretion, with or without cause, and subject to
such conditions as it shall deem appropriate.
Section 7.16 Laws And Regulations. Notwithstanding any provision of this Agreement to the
contrary, no party to this Agreement shall be required to take any act, or fail to take any act,
under this Agreement if the effect thereof would be to cause such party to be in violation of any
applicable law, statute, rule or regulation.
Section 7.17 Negotiation Of Rights Of Capital Maritime, Limited Partners, Assignees, And
Third Parties. The provisions of this Agreement are enforceable solely by the parties to this
Agreement, and no shareholder of Capital Maritime and no limited partner, member, assignee or other
Person of the MLP or the OLLC shall have the right, separate and
-18-
apart from Capital Maritime, the
MLP or the OLLC, to enforce any provision of this Agreement or to compel any party to this
Agreement to comply with the terms of this Agreement.
[SIGNATURE PAGE FOLLOWS]
-19-
IN WITNESS WHEREOF, the Parties have executed this Agreement on, and effective as of, the date
first written above.
| CAPITAL MARITIME & TRADING CORP., |
||||
| by | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | Chief Executive Officer |
|||
| Address for Notice: c/o Capital Ship Management Corp., 0 Xxxxxxxx Xxxxxx Xxxxxxx, Xxxxxx |
||||
| Phone: | x00 000 000 0000 | |||
| Fax: | x00 000 000 0000 | |||
| Attention: | Xxxxxxx X. Xxxxxxxxx | |||
| CAPITAL GP L.L.C., |
||||
| by | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | Chief Executive Officer and Chief Financial Officer |
|||
| Address for Notice: c/o Capital Ship Management Corp., 0 Xxxxxxxx Xxxxxx Xxxxxxx, Xxxxxx |
||||
| Phone: | x00 000 000 0000 | |||
| Fax: | x00 000 000 0000 | |||
| Attention: | Xxxxxxx X. Xxxxxxxxx | |||
CAPITAL PRODUCT OPERATING L.L.C.,
by Capital GP L.L.C., its general partner, by Capital Product Partners L.P.,
its sole member |
||||
| by | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | Chief Executive Officer and Chief Financial Officer of Capital GP L.L.C. |
|||
[Signature Page to First A&R Omnibus Agreement]
| Address for Notice: c/o Capital Ship Management Corp., 0 Xxxxxxxx Xxxxxx Xxxxxxx, Xxxxxx |
||||
| Phone: | x00 000 000 0000 | |||
| Fax: | x00 000 000 0000 | |||
| Attention: | Xxxxxxx X. Xxxxxxxxx | |||
CAPITAL PRODUCT PARTNERS L.P.,
by Capital GP L.L.C., its general partner, |
||||
| by | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | Chief Executive Officer and Chief Financial Officer of Capital GP L.L.C. |
|||
| Address for Notice: c/o Capital Ship Management Corp., 0 Xxxxxxxx Xxxxxx Xxxxxxx, Xxxxxx |
||||
| Phone: | x00 000 000 0000 | |||
| Fax: | x00 000 000 0000 | |||
| Attention: | Xxxxxxx X. Xxxxxxxxx | |||
[Signature Page to First A&R Omnibus Agreement (cont.)]