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UNDER
THE SECURITIES ACT OF 1933
Republic of the Marshall Islands | 4412 | N/A | ||
(State or other jurisdiction of incorporation or organization) | (Primary Standard Industrial Classification Code Number) | (I.R.S. Employer Identification No.) |
Piraeus, Greece 185 38
(011) +30 210 459 5000
(Address and telephone number of Registrant’s principal executive offices)
Trust Company Complex, Ajeltake Island
P.O. Box 1405
Majuro, Marshall Islands MH96960
(011) +30 210 429 3223
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Kenneth R. Koch, Esq.
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
The Chrysler Center
666 Third Avenue
New York, New York 10017
(212) 935-3000(telephone number)
(212) 983-3115(facsimile number)
Proposed Maximum | ||||||||
Aggregate | Amount of | |||||||
Title of Each Class of Securities to be Registered (1) | Offering Price (2)(3) | Registration Fee | ||||||
Common units representing limited partnership interests | (4) | (4) | ||||||
Debt Securities | (4) | (4) | ||||||
Total | $500,000,000.00 | $35,650.00 | ||||||
(1) | There are being registered hereunder such indeterminate number of common units and such indeterminate number of debt securities as shall have an aggregate initial offering price not to exceed $500,000,000. If any debt securities are issued at an original issue discount, then the offering price of such debt securities shall be in such greater principal amount as shall result in an aggregate initial offering price not to exceed $500,000,000, less the aggregate dollar amount of all securities previously issued hereunder. | |
(2) | In United States dollars or the equivalent thereof in any other currency, currency unit or units, or composite currency or currencies. | |
(3) | The proposed maximum aggregate offering prices per class of security will be determined from time to time by the Registrant in connection with the issuance by the Registrant of the securities registered hereunder. | |
(4) | Not required to be included in accordance with General Instruction II.F of Form F-3. |
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The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
Preliminary Prospectus dated November 2, 2010
Representing Limited Partnership Interests
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Original Charter | ||||||||||||||||||
Expiration Date/ | Original Charter | |||||||||||||||||
New Charter | Out Rate/ New | |||||||||||||||||
Expiration Date | Charter Out Rate | |||||||||||||||||
Owned Vessels | Type | Built | Capacity (DWT) | (1) | per day (2) | |||||||||||||
Navios Gemini S | Panamax | 1994 | 68,636 | February 2014 | $ | 24,225 | ||||||||||||
Navios Libra II | Panamax | 1995 | 70,136 | November 2010 | $ | 23,513 | ||||||||||||
November 2012 | $ | 18,525 | ||||||||||||||||
Navios Felicity | Panamax | 1997 | 73,867 | June 2013 | $ | 26,169 | ||||||||||||
Navios Galaxy I | Panamax | 2001 | 74,195 | February 2018 | $ | 21,937 | ||||||||||||
Navios Alegria | Panamax | 2004 | 76,466 | December 2010 | $ | 23,750 | ||||||||||||
January 2014 | $ | 16,984 | (3) | |||||||||||||||
Navios Fantastiks | Capesize | 2005 | 180,265 | March 2011 | $ | 32,279 | ||||||||||||
February 2014 | $ | 36,290 | ||||||||||||||||
Navios Hope | Panamax | 2005 | 75,397 | August 2013 | $ | 17,562 | ||||||||||||
Navios Apollon | Ultra Handymax | 2000 | 52,073 | November 2012 | $ | 23,700 | ||||||||||||
Navios Sagittarius | Panamax | 2006 | 75,756 | November 2018 | $ | 26,125 | ||||||||||||
Navios Hyperion | Panamax | 2004 | 75,707 | April 2014 | $ | 37,953 | ||||||||||||
Navios Aurora II | Capesize | 2009 | 169,031 | November 2019 | $ | 41,325 | ||||||||||||
Navios Pollux | Capesize | 2009 | 180,727 | July 2019 | $ | 42,250 |
Charter Rate | ||||||||||||||||||||
Long-term Chartered-in Vessels | Type | Built | Capacity (DWT) | Expiration Date | per day | |||||||||||||||
Navios Prosperity(4) | Panamax | 2007 | 82,535 | July 2012 | $ | 24,000 | ||||||||||||||
Navios Aldebaran(5) | Panamax | 2008 | 76,500 | March 2013 | $ | 28,391 |
(1) | Represents the initial expiration date of the time charter and, if applicable, the new time charter expiration date for the vessels with new time charters. | |
(2) | Net time charter-out rate per day (net of commissions). Represents the charter-out rate during the time charter period prior to the time charter expiration date and, if applicable, the charter-out rate under the new time charter. | |
(3) | Profit sharing 50% above $16,984/ day based on Baltic Panamax TC Average, calculated and settled every 15 days. | |
(4) | The Navios Prosperity is chartered-in for seven years starting from June 19, 2008 and we have options to extend for two one-year periods. We have the option to purchase the vessel after June 2012 at a purchase price that is initially 3.8 billion Yen ($45.4 million based upon the exchange rate at September 30, 2010), declining each year by 145 million Yen ($1.7 million based upon the exchange rate at September 30, 2010). | |
(5) | The Navios Aldebaran is chartered-in for seven years and we have options to extend for two one-year periods. We have the option to purchase the vessel after March 2013 at a purchase price that is initially 3.6 billion Yen ($43.0 million based upon the exchange rate at September 30, 2010) declining each year by 150 million Yen ($1.8 million based upon the exchange rate at September 30, 2010). |
• | Stable and growing cash flows.We believe that the long-term, fixed-rate nature of our charters will provide a stable base of revenue. In addition, we believe that the potential opportunity to purchase additional vessels from Navios Holdings and through the secondary market provide visible future growth in our revenue and distributable cash flow. We believe that our management agreement, which provides for a fixed management fee until November 16, 2011, will initially provide us with |
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predictable expenses. During the remaining one-year term of the management agreement, from November 16, 2011 to November 16, 2012, we will reimburse our manager for all of the costs and expenses it incurs in connection with the management of our fleet, which may make our cash flows less predictable. | |||
• | Strong relationship with Navios Holdings.We believe our relationship with Navios Holdings and its affiliates provides us with numerous benefits that are key to our long-term growth and success, including Navios Holdings’ expertise in commercial management and Navios Holdings’ reputation within the shipping industry and its network of strong relationships with many of the world’s drybulk raw material producers, agricultural traders and exporters, industrial end-users, shipyards, and shipping companies. We also benefit from Navios Holdings’ expertise in technical management through its in-house technical manager, which provides efficient operations and maintenance for our vessels at costs significantly below the industry average for vessels of a similar age. Navios Holdings’ expertise in fleet management is reflected in Navios Holdings’ history of a low number of off-hire days and in its record of no material incidents giving rise to loss of life or pollution or other environmental liability. | ||
• | High-quality, flexible fleet.Our fleet consists of ten modern, active Panamax vessels, three Capesize vessels and one Ultra-Handymax vessel. Our fleet of high quality dry cargo vessels has an average age of approximately six years, which is significantly younger than the current industry average of about 14 years. Panamax vessels are highly flexible vessels capable of carrying a wide range of drybulk commodities, including iron ore, coal, grain and fertilizer and of being accommodated in most major discharge ports, while Capesize vessels are primarily dedicated to the carriage of iron ore and coal. Ultra-Handymax vessels are similar to Panamax vessels although with less carrying capacity and generally have self loading and discharging gear on board to accommodate undeveloped ports. We believe that our high-quality, flexible fleet provides us with a competitive advantage in the time charter market, where vessel age, flexibility and quality are of significant importance in competing for business. | ||
• | Operating visibility through long-term charters with strong counterparties. Our vessels are chartered out under medium to long-term time charters with an average remaining term of approximately 4.3 years to a strong group of counterparties, consisting of Cargill International SA, COSCO Bulk Carrier Co., Ltd., Mitsui O.S.K. Lines, Ltd., Rio Tinto Shipping Pty Ltd., Augustea Imprese Maritime, The Sanko Steamship Co., Ltd., Daiichi Chuo Kisen Kaisha and Constellation Energy Group. We believe our existing charter coverage with strong counterparties provides us with predictable contracted revenues and operating visibility. |
• | Pursue stable cash flows through long-term charters for our fleet. We intend to continue to utilize long-term, fixed-rate charters for our existing fleet. Currently, the vessels in our fleet have an average remaining charter duration of 4.3 years and have staggered charter expirations with no more than three vessels subject to re-chartering in any one year. We will seek to opportunistically re-charter our vessels in order to add incremental stable cash flow and improve the long-term charter terms. | ||
• | Continue to grow and diversify our fleet of owned and chartered-in vessels. We will seek to make strategic acquisitions to expand our fleet in order to capitalize on the demand for drybulk carriers in a manner that is accretive to distributable cash flow per unit. We will have the right to purchase certain additional drybulk vessels currently owned or chartered-in by Navios Holdings when those vessels are fixed under long-term charters for a period of three or more years. In addition, we may seek to expand and diversify our fleet through the open market purchase of owned and chartered-in drybulk vessels with charters of three or more years. We believe that our long-term charters and financial flexibility will assist us to make additional accretive acquisitions. | ||
• | Capitalize on our relationship with Navios Holdings and expand our charters with recognized charterers. We believe that we can use our relationship with Navios Holdings and its established reputation in order to obtain favorable long-term time charters and attract new customers. We plan to increase the number of vessels we charter to our existing charterers, as well as enter into charter agreements with new customers, in order to develop a portfolio that is diverse from a customer, geographic and maturity perspective. | ||
• | Provide superior customer service by maintaining high standards of performance, reliability and safety. Our customers seek |
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transportation partners that have a reputation for high standards of performance, reliability and safety. We intend to use Navios Holdings’ operational expertise and customer relationships to further expand a sustainable competitive advantage with consistent delivery of superior customer service. |
• | the rates we obtain from our charters and the market for long-term charters when we recharter our vessels; | ||
• | the level of our operating costs, such as the cost of crews and insurance, following the expiration of the fixed term of our management agreement pursuant to which we pay a fixed daily fee until November 2011; | ||
• | the number of unscheduled off-hire days for our fleet and the timing of, and number of days required for, scheduled inspection, maintenance or repairs of submerged parts, or drydocking, of our vessels; | ||
• | demand for drybulk commodities; | ||
• | supply of drybulk vessels; | ||
• | prevailing global and regional economic and political conditions; and | ||
• | the effect of governmental regulations and maritime self-regulatory organization standards on the conduct of our business. |
• | the level of capital expenditures we make, including those associated with maintaining vessels, building new vessels, acquiring existing vessels and complying with regulations; | ||
• | our debt service requirements and restrictions on distributions contained in our debt instruments; | ||
• | interest rate fluctuations; |
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• | the cost of acquisitions, if any; | ||
• | fluctuations in our working capital needs; | ||
• | our ability to make working capital borrowings, including the payment of distributions to unitholders; and | ||
• | the amount of any cash reserves, including reserves for future maintenance and replacement capital expenditures, working capital and other matters, established by our board of directors in its discretion. |
• | global and regional economic conditions; | ||
• | developments in international trade; | ||
• | changes in seaborne and other transportation patterns, such as port congestion and canal closures; | ||
• | weather and crop yields; | ||
• | armed conflicts and terrorist activities including piracy; | ||
• | political developments; and | ||
• | embargoes and strikes. |
• | the number of vessels that are in or out of service; | ||
• | the scrapping rate of older vessels; | ||
• | port and canal traffic and congestion; | ||
• | the number of newbuilding deliveries; and |
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• | vessel casualties. |
• | number of newbuilding deliveries; | ||
• | number of vessels scrapped or otherwise removed from the total fleet; | ||
• | changes in environmental and other regulations that may limit the useful life of vessels; | ||
• | changes in global drybulk commodity supply; | ||
• | types and sizes of vessels; | ||
• | development of and increase in use of other modes of transportation; | ||
• | cost of vessel acquisitions; | ||
• | governmental or other regulations; | ||
• | prevailing level of charter rates; and | ||
• | general economic and market conditions affecting the shipping industry. |
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• | the cost of our labor and materials; | ||
• | the cost of suitable replacement vessels; | ||
• | customer/market requirements; | ||
• | increases in the size of our fleet; and | ||
• | governmental regulations and maritime self-regulatory organization standards relating to safety, security or the environment. |
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• | our ability to obtain additional financing, if necessary, for working capital, capital expenditures, acquisitions or other purposes may be impaired or such financing may not be available on favorable terms; | ||
• | we will need a substantial portion of our cash flow to make principal and interest payments on our debt, reducing the funds that would otherwise be available for operations, future business opportunities and distributions to unitholders; | ||
• | our debt level will make us more vulnerable than our competitors with less debt to competitive pressures or a downturn in our business or the economy generally; and | ||
• | our debt level may limit our flexibility in responding to changing business and economic conditions. |
• | incur or guarantee indebtedness; | ||
• | charge, pledge or encumber the vessels; | ||
• | merge or consolidate; | ||
• | change the flag, class or commercial and technical management of our vessels; | ||
• | make cash distributions; | ||
• | make new investments; and | ||
• | sell or change the ownership or control of our vessels. |
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• | maintain minimum free consolidated liquidity (which may be in the form of undrawn commitments under the Credit Facility) of at least $22.0 million per year (increasing by $9.0 million per year on each of December 31, 2010, December 31, 2011 and December 31, 2012 until it reaches $40.0 million, at which level it is required to be maintained thereafter); | ||
• | maintain a ratio of EBITDA to interest expense of at least 2.00 : 1.00; and | ||
• | maintain a ratio of total liabilities to total assets (as defined in our Credit Facility) of less than 0.75 : 1.00. |
• | failure to pay any principal, interest, fees, expenses or other amounts when due; | ||
• | failure to observe any other agreement, security instrument, obligation or covenant beyond specified cure periods in certain cases; | ||
• | default under other indebtedness; | ||
• | an event of insolvency or bankruptcy; | ||
• | material adverse change in the financial position or prospects of us or our general partner; | ||
• | failure of any representation or warranty to be materially correct; and | ||
• | failure of Navios Holdings or its affiliates (as defined in the Credit Facility agreement) to own at least 30% of us. |
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• | renew existing charters upon their expiration; | ||
• | obtain new charters; | ||
• | successfully interact with shipyards during periods of shipyard construction constraints; | ||
• | obtain financing on commercially acceptable terms; or | ||
• | maintain satisfactory relationships with suppliers and other third parties. |
• | locating and acquiring suitable vessels; | ||
• | identifying and consummating acquisitions or joint ventures; | ||
• | integrating any acquired business successfully with our existing operations; | ||
• | enhancing our customer base; | ||
• | managing our expansion; and | ||
• | obtaining required financing. |
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• | the operator’s environmental, health and safety record; | ||
• | compliance with International Maritime Organization, or IMO, standards and the heightened industry standards that have been set by some energy companies; | ||
• | shipping industry relationships, reputation for customer service, technical and operating expertise; | ||
• | shipping experience and quality of ship operations, including cost-effectiveness; | ||
• | quality, experience and technical capability of crews; | ||
• | the ability to finance vessels at competitive rates and overall financial stability; | ||
• | relationships with shipyards and the ability to obtain suitable berths; | ||
• | construction management experience, including the ability to procure on-time delivery of new vessels according to customer specifications; | ||
• | willingness to accept operational risks pursuant to the charter, such as allowing termination of the charter for force majeure events; and | ||
• | competitiveness of the bid in terms of overall price. |
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• | fail to realize anticipated benefits, such as new customer relationships, cost-savings or cash flow enhancements; | ||
• | be unable to hire, train or retain qualified shore and seafaring personnel to manage and operate our growing business and fleet; | ||
• | decrease our liquidity by using a significant portion of our available cash or borrowing capacity to finance acquisitions; | ||
• | significantly increase our interest expense or financial leverage if we incur additional debt to finance acquisitions; | ||
• | incur or assume unanticipated liabilities, losses or costs associated with the business or vessels acquired; or | ||
• | incur other significant charges, such as impairment of goodwill or other intangible assets, asset devaluation or restructuring charges. |
• | quality or engineering problems; | ||
• | changes in governmental regulations or maritime self-regulatory organization standards; | ||
• | work stoppages or other labor disturbances at the shipyard; | ||
• | bankruptcy or other financial crisis of the shipbuilder; | ||
• | a backlog of orders at the shipyard; | ||
• | political or economic disturbances; | ||
• | weather interference or catastrophic event, such as a major earthquake or fire; | ||
• | requests for changes to the original vessel specifications; | ||
• | shortages of or delays in the receipt of necessary construction materials, such as steel; | ||
• | inability to finance the construction or conversion of the vessels; or | ||
• | inability to obtain requisite permits or approvals. |
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• | the customer fails to make charter payments because of its financial inability, disagreements with us or otherwise; | ||
• | the customer exercises certain rights to terminate the charter; | ||
• | the customer terminates the charter because we fail to deliver the vessel within a fixed period of time, the vessel is lost or damaged beyond repair, there are serious deficiencies in the vessel or prolonged periods of off-hire, or we default under the charter; or | ||
• | a prolonged force majeure event affecting the customer, including damage to or destruction of relevant production facilities, war or political unrest prevents us from performing services for that customer. |
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• | on-board installation of automatic information systems, or AIS, to enhance vessel-to-vessel and vessel-to-shore communications; | ||
• | on-board installation of ship security alert systems; | ||
• | the development of vessel security plans; and | ||
• | compliance with flag state security certification requirements. |
• | damage or destruction of vessel due to marine disaster such as a collision; | ||
• | the loss of a vessel due to piracy and terrorism; | ||
• | cargo and property losses or damage as a result of the foregoing or less drastic causes such as human error, mechanical failure and bad weather; | ||
• | environmental accidents as a result of the foregoing; and | ||
• | business interruptions and delivery delays caused by mechanical failure, human error, war, terrorism, political action in various countries, labor strikes or adverse weather conditions. |
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• | neither our partnership agreement nor any other agreement requires our general partner or Navios Holdings or its affiliates to pursue a business strategy that favors us or utilizes our assets, and Navios Holdings’ officers and directors have a fiduciary duty to make decisions in the best interests of the stockholders of Navios Holdings, which may be contrary to our interests; | ||
• | our general partner and our board of directors are allowed to take into account the interests of parties other than us, such as Navios Holdings, in resolving conflicts of interest, which has the effect of limiting their fiduciary duties to our unitholders; | ||
• | our general partner and our directors have limited their liabilities and reduced their fiduciary duties under the laws of the Marshall Islands, while also restricting the remedies available to our unitholders, and, as a result of purchasing common units, unitholders are treated as having agreed to the modified standard of fiduciary duties and to certain actions that may be taken by our general partner and our directors, all as set forth in the partnership agreement; | ||
• | our general partner and our board of directors will be involved in determining the amount and timing of our asset purchases and sales, capital expenditures, borrowings, issuances of additional partnership securities and reserves, each of which can affect the amount of cash that is available for distribution to our unitholders; | ||
• | our general partner may have substantial influence over our board of directors’ decision to cause us to borrow funds in order to permit the payment of cash distributions, even if the purpose or effect of the borrowing is to make a distribution on the subordinated units or to make incentive distributions or to accelerate the expiration of the subordination period; | ||
• | our general partner is entitled to reimbursement of all reasonable costs incurred by it and its affiliates for our benefit; | ||
• | our partnership agreement does not restrict us from paying our general partner or its affiliates for any services rendered to us on terms that are fair and reasonable or entering into additional contractual arrangements with any of these entities on our behalf; and | ||
• | our general partner may exercise its right to call and purchase our common units if it and its affiliates own more than 80% of our common units. |
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• | permits our general partner to make a number of decisions in its individual capacity, as opposed to in its capacity as our general partner. Where our partnership agreement permits, our general partner may consider only the interests and factors that it desires, and in such cases it has no fiduciary duty or obligation to give any consideration to any interest of, or factors affecting us, our affiliates or our unitholders. Decisions made by our general partner in its individual capacity will be made by its sole owner, Navios Holdings. Specifically, pursuant to our partnership agreement, our general partner will be considered to be acting in its individual capacity if it exercises its call right, pre-emptive rights or registration rights, consents or withholds consent to any merger or consolidation of the partnership; | ||
• | appoints any directors or votes for the election of any director, votes or refrains from voting on amendments to our partnership agreement that require a vote of the outstanding units, voluntarily withdraws from the partnership, transfers (to the extent permitted under our partnership agreement) or refrains from transferring its units, general partner interest or incentive distribution rights or votes upon the dissolution of the partnership; | ||
• | provides that our general partner and our directors are entitled to make other decisions in “good faith” if they reasonably believe that the decision is in our best interests; | ||
• | generally provides that affiliated transactions and resolutions of conflicts of interest not approved by the conflicts committee of our board of directors and not involving a vote of unitholders must be on terms no less favorable to us than those generally being provided to or available from unrelated third parties or be “fair and reasonable” to us and that, in determining whether a transaction or resolution is “fair and reasonable,” our board of directors may consider the totality of the relationships between the parties involved, including other transactions that may be particularly advantageous or beneficial to us; and | ||
• | provides that neither our general partner nor our officers or our directors will be liable for monetary damages to us, our limited partners or assignees for any acts or omissions unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that our general partner or directors or our officers or directors or those other persons engaged in actual fraud or willful misconduct. |
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• | The unitholders will be unable initially to remove our general partner without its consent because our general partner and its affiliates own sufficient units to be able to prevent its removal. The vote of the holders of at least 66 2/3% of all outstanding common and subordinated units voting together as a single class is required to remove the general partner. Navios Holdings currently owns 25.5% of the total number of outstanding common and subordinated units based on all outstanding limited, subordinated and general partner units. | ||
• | If our general partner is removed without “cause” during the subordination period and units held by our general partner and Navios Holdings are not voted in favor of that removal, (i) all remaining subordinated units will automatically convert into common units, (ii) any existing arrearages on the common units will be extinguished and (iii) our general partner will have the right to convert its general partner interest and its incentive distribution rights into common units or to receive cash in exchange for those interests based on the fair market value of the interests at the time. A removal of our general partner under these circumstances would adversely affect the common units by prematurely eliminating their distribution and liquidation preference over the subordinated units, which would otherwise have continued until we had met certain distribution and performance tests. Any conversion of the general partner interest and incentive distribution rights would be dilutive to existing unitholders. Furthermore, any cash payment in lieu of such conversion could be prohibitively large. “Cause” is narrowly defined to mean that a court of competent jurisdiction has entered a final, non-appealable judgment finding our general partner liable for actual fraud or willful or wanton misconduct in its capacity as our general partner. Cause does not include most cases of charges of poor business decisions such as charges of poor management of our business by the directors appointed by our general partner, so the removal of our general partner because of the unitholders’ dissatisfaction with the general partner’s decisions in this regard would most likely result in the termination of the subordination period. | ||
• | Common unitholders elect only four of the seven members of our board of directors. Our general partner in its sole discretion has the right to appoint the remaining three directors. | ||
• | Election of the four directors elected by unitholders is staggered, meaning that the members of only one of three classes of our elected directors are selected each year. In addition, the directors appointed by our general partner will serve for terms determined by our general partner. | ||
• | Our partnership agreement contains provisions limiting the ability of unitholders to call meetings of unitholders, to nominate directors and to acquire information about our operations as well as other provisions limiting the unitholders’ ability to influence the manner or direction of management. | ||
• | Unitholders’ voting rights are further restricted by the partnership agreement provision providing that if any person or group owns beneficially more than 4.9% of any class of units then outstanding, any such units owned by that person or group in excess of 4.9% may not be voted on any matter and will not be considered to be outstanding when sending notices of a meeting of unitholders, calculating required votes, except for purposes of nominating a person for election to our board, determining the presence of a quorum or for other similar purposes, unless required by law. The voting rights of any such unitholders in excess of 4.9% will be redistributed pro rata among the other common unitholders holding less than 4.9% of the voting power of all classes of units entitled to vote. Our general partner, its affiliates and persons who acquired common units with the prior approval of our board of directors will not be subject to this 4.9% limitation except with respect to voting their common units in the election of the elected directors. | ||
• | We have substantial latitude in issuing equity securities without unitholder approval. |
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• | forecasts of our ability to make cash distributions on the units; | ||
• | forecasts of our future financial condition or results of operations and our future revenues and expenses; | ||
• | our anticipated growth strategies; | ||
• | future charter hire rates and vessel values; | ||
• | the repayment of debt; | ||
• | our ability to access debt and equity markets; | ||
• | planned capital expenditures and availability of capital resources to fund capital expenditures; | ||
• | future supply of, and demand for, drybulk commodities; | ||
• | increases in interest rates; | ||
• | our ability to maintain long-term relationships with major commodity traders; | ||
• | our ability to leverage to our advantage Navios Holdings’ relationships and reputation in the shipping industry; | ||
• | our continued ability to enter into long-term, fixed-rate time charters; | ||
• | our ability to maximize the use of our vessels, including the re-deployment or disposition of vessels no longer under long-term time charter; | ||
• | timely purchases and deliveries of newbuilding vessels; | ||
• | future purchase prices of newbuildings and secondhand vessels; | ||
• | our ability to compete successfully for future chartering and newbuilding opportunities; | ||
• | the expected cost of, and our ability to comply with, governmental regulations, maritime self-regulatory organization standards, as well as standard regulations imposed by our charterers applicable to our business; | ||
• | our anticipated incremental general and administrative expenses as a publicly traded limited partnership and our expenses under the management agreement and the administrative services agreement with Navios ShipManagement and for reimbursements for fees and costs of our general partner; | ||
• | the anticipated taxation of our partnership and distributions to our unitholders; |
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• | estimated future maintenance and replacement capital expenditures; | ||
• | expected demand in the drybulk shipping sector in general and the demand for our Panamax, Capesize and Ultra-Handymax vessels in particular; | ||
• | our ability to retain key executive officers; | ||
• | customers’ increasing emphasis on environmental and safety concerns; | ||
• | future sales of our common units in the public market; and | ||
• | our business strategy and other plans and objectives for future operations. |
• | a lack of sufficient cash to pay the minimum quarterly distribution on our common units; | ||
• | the cyclical nature of the international drybulk shipping industry; | ||
• | fluctuations in charter rates for drybulk carriers; | ||
• | the historically high numbers of newbuildings currently under construction in the drybulk industry; | ||
• | changes in the market values of our vessels and the vessels for which we have purchase options; | ||
• | an inability to expand relationships with existing customers and obtain new customers; | ||
• | the loss of any customer or charter or vessel; | ||
• | the aging of our fleet and resultant increases in operations costs; | ||
• | damage to our vessels; and | ||
• | general domestic and international political conditions, including wars and terrorism. |
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As of September 30, 2010 | ||||||||
(In thousands of U.S. dollars) | ||||||||
Actual | As Adjusted | |||||||
Long-term Debt: | $ | 271,500 | $ | 271,500 | ||||
Partners’ Capital: | ||||||||
Common Unitholders (34,666,034 units issued and outstanding September 30, 2010 and 40,991,034 as adjusted) | 532,557 | 638,850 | ||||||
Subordinated Unitholders (7,621,843 units issued and outstanding September 30, 2010) | (167,809 | ) | (167,809 | ) | ||||
General Partner (883,428 units issued and outstanding September 30, 2010 and 1,012,510 as adjusted) | (713 | ) | 1,565 | |||||
Subordinated Series A Unitholders (1,000,000 units issued and outstanding September 30, 2010) | 6,082 | 6,082 | ||||||
Total Partners’ Capital | 370,117 | 478,688 | ||||||
Total Capitalization | $ | 641,617 | $ | 750,188 | ||||
Price Range | ||||||||
High | Low | |||||||
Year Ended: | ||||||||
December 31, 2009 | $ | 15.80 | $ | 6.39 | ||||
December 31, 2008 | $ | 18.85 | $ | 3.36 | ||||
December 31, 2007* | $ | 19.45 | $ | 17.40 | ||||
Quarter Ended: | ||||||||
September 30, 2010 | $ | 18.48 | $ | 15.23 | ||||
June 30, 2010 | $ | 20.03 | $ | 14.81 | ||||
March 31, 2010 | $ | 17.20 | $ | 14.50 | ||||
December 31, 2009 | $ | 15.80 | $ | 11.80 | ||||
September 30, 2009 | $ | 13.20 | $ | 9.15 | ||||
June 30, 2009 | $ | 11.27 | $ | 7.96 |
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Price Range | ||||||||
High | Low | |||||||
March 31, 2009 | $ | 8.71 | $ | 6.39 | ||||
December 31, 2008 | $ | 8.08 | $ | 3.36 | ||||
Month Ended: | ||||||||
October 31, 2010 | $ | 18.96 | $ | 17.93 | ||||
September 30, 2010 | $ | 18.58 | $ | 17.63 | ||||
August 31, 2010 | $ | 18.48 | $ | 16.94 | ||||
July 31, 2010 | $ | 18.40 | $ | 15.23 | ||||
June 30, 2010 | $ | 16.14 | $ | 14.92 | ||||
May 31, 2010 | $ | 18.20 | $ | 14.81 | ||||
April 30, 2010 | $ | 20.03 | $ | 17.87 |
* | Period commenced on November 13, 2007. |
Distributions for Quarter Ended | Amount of Cash Distributions | Cash Distributions per Unit | ||
September 30, 2010 | $21.0 million | $0.42 per unit | ||
June 30, 2010 | $18.3 million | $0.42 per unit | ||
March 31, 2010 | $18.0 million | $0.415 per unit | ||
December 31, 2009 | $15.1 million | $0.41 per unit | ||
September 30, 2009 | $11.6 million | $0.405 per unit | ||
June 30, 2009 | $10.1 million | $0.40 per unit | ||
March 31, 2009 | $8.7 million | $0.40 per unit | ||
December 31, 2008 | $8.7 million | $0.40 per unit | ||
September 30, 2008 | $8.3 million | $0.385 per unit | ||
June 30, 2008 | $6.5 million | $0.35 per unit | ||
March 31, 2008 | $6.5 million | $0.35 per unit | ||
December 31, 2007* | $3.2 million | $0.175 per unit |
* | Prorated for the period from November 16, 2007 to December 31, 2007. |
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• | common units; and/or | ||
• | debt securities. |
• | surety bond premiums to replace lost or stolen certificates, taxes and other governmental charges; | ||
• | special charges for services requested by a holder of a common unit; and | ||
• | other similar fees or charges. |
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• | represents that the transferee has the capacity, power and authority to become bound by our partnership agreement; | ||
• | automatically agrees to be bound by the terms and conditions of, and is deemed to have executed, our partnership agreement; and | ||
• | gives the consents and approvals contained in our partnership agreement. |
• | the title; | ||
• | any limit on the amount that may be issued; | ||
• | whether or not we will issue the series of notes in global form, the terms and who the depository will be; |
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• | the maturity date; | ||
• | the annual interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such dates; | ||
• | whether or not the notes will be secured or unsecured, and the terms of any secured debt; | ||
• | the terms of the subordination of any series of subordinated debt; | ||
• | the place where payments will be made; | ||
• | our right, if any, to defer payment of interest and the maximum length of any such deferral period; | ||
• | the date, if any, after which, and the price at which, we may, at our option, redeem the series of notes pursuant to any optional redemption provisions; | ||
• | the date, if any, on which, and the price at which we are obligated, pursuant to any mandatory sinking fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of notes; | ||
• | whether the indenture will restrict our ability to pay dividends, or will require us to maintain any asset ratios or reserves; | ||
• | whether we will be restricted from incurring any additional indebtedness; | ||
• | a discussion of any material or special United States federal income tax considerations applicable to the notes; | ||
• | the denominations in which we will issue the series of notes, if other than denominations of $1,000 and any integral multiple thereof; and | ||
• | any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities. |
• | if we fail to pay interest when due and our failure continues for 90 days and the time for payment has not been extended or deferred; | ||
• | if we fail to pay the principal, or premium, if any, when due and the time for payment has not been extended or delayed; | ||
• | if we fail to observe or perform any other covenant contained in the notes or the indentures, other than a covenant specifically relating to another series of notes, and our failure continues for 90 days after we receive notice from the debenture trustee or holders of at least 25% in aggregate principal amount of the outstanding notes of the applicable series; and |
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• | if specified events of bankruptcy, insolvency or reorganization occur as to us. |
• | the direction so given by the holder is not in conflict with any law or the applicable indenture; and | ||
• | subject to its duties under the Trust Indenture Act, the debenture trustee need not take any action that might involve it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding. |
• | the holder has given written notice to the debenture trustee of a continuing event of default with respect to that series; | ||
• | the holders of at least 25% in aggregate principal amount of the outstanding notes of that series have made written request, and such holders have offered reasonable indemnity, to the debenture trustee to institute the proceeding as trustee; and | ||
• | the debenture trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the outstanding notes of that series other conflicting directions within 60 days after the notice, request and offer. |
• | to fix any ambiguity, defect or inconsistency in the indenture; and | ||
• | to change anything that does not materially adversely affect the interests of any holder of notes of any series. |
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• | extending the fixed maturity of the series of notes; | ||
• | reducing the principal amount, reducing the rate of or extending the time of payment of interest, or any premium payable upon the redemption of any notes; or | ||
• | reducing the percentage of notes, the holders of which are required to consent to any amendment. |
• | register the transfer or exchange of debt securities of the series; | ||
• | replace stolen, lost or mutilated debt securities of the series; | ||
• | maintain paying agencies; | ||
• | hold monies for payment in trust; | ||
• | compensate and indemnify the trustee; and | ||
• | appoint any successor trustee. |
• | issue, register the transfer of, or exchange any notes of that series during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any notes that may be selected for redemption and ending at the close of business on the day of the mailing; or |
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• | register the transfer of or exchange any notes so selected for redemption, in whole or in part, except the unredeemed portion of any notes we are redeeming in part. |
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• | how it handles securities payments and notices; | ||
• | whether it imposes fees or charges; | ||
• | how it would handle a request for the holders’ consent, if ever required; | ||
• | whether and how you can instruct it to send you securities registered in your own name so you can be a holder, if that is permitted in the future; | ||
• | how it would exercise rights under the securities if there were a default or other event triggering the need for holders to act to protect their interests; and |
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• | if the securities are in book-entry form, how the depositary’s rules and procedures will affect these matters. |
• | An investor cannot cause the securities to be registered in his or her name, and cannot obtain non-global certificates for his or her interest in the securities, except in the special situations we describe below; | ||
• | An investor will be an indirect holder and must look to his or her own bank or broker for payments on the securities and protection of his or her legal rights relating to the securities, as we describe under “Legal Ownership of Securities” above; | ||
• | An investor may not be able to sell interests in the securities to some insurance companies and to other institutions that are required by law to own their securities in non-book-entry form; | ||
• | An investor may not be able to pledge his or her interest in a global security in circumstances where certificates representing the securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective; | ||
• | The depositary’s policies, which may change from time to time, will govern payments, transfers, exchanges and other matters relating to an investor’s interest in a global security. We and any applicable trustee have no responsibility for any aspect of the depositary’s actions or for its records of ownership interests in a global security. We and the trustee also do not supervise the depositary in any way; | ||
• | The depositary may, and we understand that DTC will, require that those who purchase and sell interests in a global security within its book-entry system use immediately available funds, and your broker or bank may require you to do so as well; and |
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• | Financial institutions that participate in the depositary’s book-entry system, and through which an investor holds its interest in a global security, may also have their own policies affecting payments, notices and other matters relating to the securities. There may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for the actions of any of those intermediaries. |
• | if the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security and we do not appoint another institution to act as depositary within 90 days; | ||
• | if we notify any applicable trustee that we wish to terminate that global security; or | ||
• | if an event of default has occurred with regard to securities represented by that global security and has not been cured or waived. |
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• | through dealers or agents to the public or to investors; | ||
• | to underwriters for resale to the public or to investors; | ||
• | directly to investors; or | ||
• | through a combination of such methods. |
• | the name or names of any agents, dealers or underwriters; | ||
• | the purchase price of the securities being offered and the proceeds we will receive from the sale; | ||
• | any over-allotment options under which underwriters may purchase additional securities from us; | ||
• | any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation; | ||
• | any initial public offering price; | ||
• | any discounts or concessions allowed or reallowed or paid to dealers; and | ||
• | any securities exchanges on which the securities may be listed. |
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• | Our unitholders have no contractual or other legal right to receive distributions other than the obligation under our partnership agreement to distribute available cash on a quarterly basis, which is subject to the broad discretion of our board of directors to establish reserves and other limitations. | ||
• | While our partnership agreement requires us to distribute all of our available cash, our partnership agreement, including provisions requiring us to make cash distributions contained therein, may be amended. Although during the subordination period, with certain exceptions, our partnership agreement may not be amended without the approval of non-affiliated common unitholders, our partnership agreement can be amended with the approval of a majority of the outstanding common units after the subordination period has ended. | ||
• | Even if our cash distribution policy is not modified or revoked, the amount of distributions we pay under our cash distribution policy and the decision to make any distribution is determined by our board of directors, taking into consideration the terms of our partnership agreement. | ||
• | Under Section 51 of the Marshall Islands Limited Partnership Act, we may not make a distribution to you if the distribution would cause our liabilities to exceed the fair value of our assets. | ||
• | We may lack sufficient cash to pay distributions to our unitholders due to decreases in net revenues or increases in operating expenses, principal and interest payments on outstanding debt, tax expenses, working capital requirements, maintenance and replacement capital expenditures or anticipated cash needs. | ||
• | Our distribution policy will be affected by restrictions on distributions under our existing credit facility which contains material financial tests and covenants that must be satisfied and we will not pay any distributions that will cause us to violate our existing credit facility or other debt instruments. Should we be unable to satisfy these restrictions included in the existing credit facility or if we are otherwise in default under our existing credit facility, our ability to make cash distributions to you, notwithstanding our cash distribution policy, would be materially adversely affected. | ||
• | If we make distributions out of capital surplus, as opposed to operating surplus, such distributions will constitute a return of capital and will result in a reduction in the minimum quarterly distribution and the target distribution levels. We do not anticipate that we will make any distributions from capital surplus. |
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Marginal Percentage Interest | ||||||||||||
Total Quarterly | in Distributions | |||||||||||
Distribution | General | |||||||||||
Target Amount | Unitholders | Partner | ||||||||||
Minimum Quarterly Distribution | $ | 0.35 | 98.0 | % | 2.0 | % | ||||||
First Target Distribution | up to $0.4025 | 98.0 | % | 2.0 | % | |||||||
Second Target Distribution | above $0.4025 up to $0.4375 | 85.0 | % | 15.0 | % | |||||||
Third Target Distribution | above $0.4375 up to $0.525 | 75.0 | % | 25.0 | % | |||||||
Thereafter | above $0.525 | 50.0 | % | 50.0 | % |
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• | is an individual U.S. citizen or resident (as determined for U.S. federal income tax purposes), | ||
�� | • | a corporation (or other entity that is classified as a corporation for U.S. federal income tax purposes) organized under the laws of the United States or any of its political subdivisions, | |
• | an estate the income of which is subject to U.S. federal income taxation regardless of its source, or | ||
• | a trust if (i) a court within the United States is able to exercise primary jurisdiction over the administration of the trust and one or more U.S. persons have the authority to control all substantial decisions of the trust or (ii) the trust has a valid election in effect under current U.S. Treasury Regulations to be treated as a U.S. person. |
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• | at least 75.0% of our gross income (including the gross income of our vessel-owning subsidiaries) for such taxable year consists of passive income (e.g., dividends, interest, capital gains and rents derived other than in the active conduct of a rental business), or | ||
• | at least 50.0% of the average value of the assets held by us (including the assets of our vessel-owning subsidiaries) during such taxable year produce, or are held for the production of, passive income. |
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• | the excess distribution or gain would be allocated ratably over the Non-Electing Holder’s aggregate holding period for the common units; | ||
• | the amount allocated to the current taxable year and any year prior to the year we were first treated as a PFIC with respect to the Non-Electing Holder would be taxed as ordinary income; and | ||
• | the amount allocated to each of the other taxable years would be subject to tax at the highest rate of tax in effect for the applicable class of taxpayer for that year, and an interest charge for the deemed deferral benefit would be imposed with respect to the resulting tax attributable to each such other taxable year. |
• | fails to provide an accurate taxpayer identification number; | ||
• | is notified by the IRS that he has failed to report all interest or corporate distributions required to be reported on his U.S. federal income tax returns; or | ||
• | in certain circumstances, fails to comply with applicable certification requirements. |
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U.S. Securities and Exchange Commission registration fee | $ | 35,650 | ||
Financial Industry Regulatory Authority, Inc. filing fee | * | |||
New York Stock Exchange listing fee | * | |||
Legal fees and expenses | * | |||
Accounting fees and expenses | * | |||
Printing and engraving costs | * | |||
Transfer agent fees | * | |||
Miscellaneous | * | |||
Total | $ | 35,650 | ||
* | Amounts to be provided in a prospectus supplement or in a Current Report on Form 6-K subsequently incorporated by reference into this prospectus. |
• | our Annual Report on Form 20-F for the fiscal year ended December 31, 2009 filed on February 23, 2010; | ||
• | our Report on Form 6-K filed on March 3, 2010; | ||
• | our Report on Form 6-K filed on March 26, 2010; | ||
• | our Report on Form 6-K filed on April 8, 2010; |
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• | our Report on Form 6-K filed on April 28, 2010; | ||
• | our Report on Form 6-K filed on April 28, 2010; | ||
• | our Report on Form 6-K filed on April 30, 2010; | ||
• | our Report on Form 6-K filed on May 6, 2010; | ||
• | our Report on Form 6-K filed on May 25, 2010; | ||
• | our Report on Form 6-K filed on June 11, 2010; | ||
• | our Report on Form 6-K filed on July 22, 2010; | ||
• | our Report on Form 6-K filed on July 22, 2010; | ||
• | our Report on Form 6-K filed on July 26, 2010; | ||
• | our Report on Form 6-K filed on July 27, 2010; | ||
• | our Report on Form 6-K filed on October 7, 2010; | ||
• | our Report on Form 6-K filed on October 8, 2010; | ||
• | our Report on Form 6-K filed on October 15, 2010; | ||
• | our Reports on Form 6-K filed on October 27, 2010; | ||
• | all subsequent reports on Form 20-F shall be deemed to be incorporated by reference into this prospectus and deemed to be part hereof after the date of this prospectus but before the termination of the offering by this prospectus; | ||
• | our reports on Form 6-K furnished to the SEC after the date of this prospectus only to the extent that the forms expressly state that we incorporate by reference in this prospectus; and | ||
• | the description of our common units contained in our Registration Statement on Form 8-A filed on November 7, 2007, including any subsequent amendments or reports filed for the purpose of updating such description. |
85 Akti Miaouli Street, Piraeus, Greece 185 38
Attn: Corporate Secretary
(+30) 210 459 5000
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• | inspect a copy of the Registration Statement, including the exhibits and schedules, | ||
• | without charge at the public reference room, | ||
• | obtain a copy from the SEC upon payment of the fees prescribed by the SEC, or | ||
• | obtain a copy from the SEC’s web site or our web site. |
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INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
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F-2 | ||||
F-3 | ||||
F-4 | ||||
F-6 | ||||
F-7 |
F-1
Table of Contents
Athens, Greece
November 2, 2010
F-2
Table of Contents
(In Thousands of U.S. dollars)
December 31, | December 31, | |||||||||||
Note | 2009 | 2008 | ||||||||||
ASSETS | ||||||||||||
Current assets | ||||||||||||
Cash | $ | 1 | $ | 1 | ||||||||
Total current assets | 1 | 1 | ||||||||||
Non-current assets | ||||||||||||
Investment in Navios Maritime Partners L.P. | 3,916 | 1,052 | ||||||||||
Total non-current assets | 3,916 | 1,052 | ||||||||||
Total assets | $ | 3,917 | $ | 1,053 | ||||||||
Liabilities and member’s equity | ||||||||||||
Amounts due to related parties | 2 | $ | 2,548 | $ | 406 | |||||||
Total liabilities | 2,548 | 406 | ||||||||||
Commitments and contingencies | — | — | ||||||||||
Member’s equity | ||||||||||||
Member’s equity | 1 | 1 | ||||||||||
Retained earnings | 1,368 | 646 | ||||||||||
Total member’s equity | 1,369 | 647 | ||||||||||
Total liabilities and member’s equity | $ | 3,917 | $ | 1,053 | ||||||||
F-3
Table of Contents
(In Thousands of U.S. dollars)
F-4
Table of Contents
F-5
Table of Contents
(In Thousands of U.S. dollars)
September 30, | ||||||||||||
Note | 2010 (Unaudited) | December 31, 2009 | ||||||||||
ASSETS | ||||||||||||
Current assets | ||||||||||||
Cash | $ | 1 | $ | 1 | ||||||||
Total current assets | 1 | 1 | ||||||||||
Non-current assets | ||||||||||||
Investment in Navios Maritime Partners L.P. | 7,039 | 3,916 | ||||||||||
Total non-current assets | 7,039 | 3,916 | ||||||||||
Total assets | $ | 7,040 | $ | 3,917 | ||||||||
Liabilities and member’s equity | ||||||||||||
Amounts due to related parties | 2 | $ | 4,823 | $ | 2,548 | |||||||
Total liabilities | 4,823 | 2,548 | ||||||||||
Commitments and contingencies | ||||||||||||
Member’s equity | ||||||||||||
Member’s equity | 1 | 1 | ||||||||||
Retained earnings | 2,216 | 1,368 | ||||||||||
Total member’s equity | 2,217 | 1,369 | ||||||||||
Total liabilities and member’s equity | $ | 7,040 | $ | 3,917 | ||||||||
F-6
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(In thousands of U.S. dollars)
F-7
Table of Contents
F-8
Table of Contents
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Exhibit | ||
Number | Description of Document | |
5.1* | Opinion of Reeder & Simpson P.C. regarding legality of the securities being registered | |
23.1 | Consent of PricewaterhouseCoopers S.A. (Filed herewith) | |
23.2 | Consent of PricewaterhouseCoopers S.A. (Filed herewith) | |
23.3* | Consent of Reeder & Simpson P.C. (to be included in Exhibit 5.1 to this Registration Statement on Form F-3). | |
24.1 | Power of Attorney (Included on signature page). |
* | To be filed by amendment. |
II-1
Table of Contents
II-2
Table of Contents
II-3
Table of Contents
NAVIOS MARITIME PARTNERS L.P. | ||||
By: | /s/ Angeliki Frangou | |||
Name: | Angeliki Frangou | |||
Title: | Chairman of the Board of Directors and Chief Executive Officer | |||
Signature | Title | Date | ||
/s/ Angeliki Frangou | Chairman of the Board of Directors and Chief Executive Officer (Principal Executive Officer) | November 2, 2010 | ||
/s/ Efstratios Desypris | Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | November 2, 2010 | ||
/s/ George Achniotis | Director | November 2, 2010 | ||
George Achniotis | ||||
/s/ Shunji Sasada | Director | November 2, 2010 | ||
Shunji Sasada | ||||
/s/ Serafeim Kriempardis | Director | November 2, 2010 | ||
Serafeim Kriempardis | ||||
/s/ Michael Sarris | Director | November 2, 2010 | ||
Michael Sarris | ||||
/s/ Robert Pierot | Director | November 2, 2010 | ||
Robert Pierot | ||||
/s/ John Karakadas | Director | November 2, 2010 | ||
John Karakadas |
II-4
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PUGLISI & ASSOCIATES | ||||
By: | /s/ Donald J. Puglisi | |||
Name: | Donald J. Puglisi | |||
Title: | Managing Director |
II-5
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Exhibit | ||
Number | Description of Document | |
5.1* | Opinion of Reeder & Simpson P.C. regarding legality of the securities being registered | |
23.1 | Consent of PricewaterhouseCoopers S.A. (Filed herewith) | |
23.2 | Consent of PricewaterhouseCoopers S.A. (Filed herewith) | |
23.3* | Consent of Reeder & Simpson P.C. (to be included in Exhibit 5.1 to this Registration Statement on Form F-3). | |
24.1 | Power of Attorney (Included on signature page). |
* | To be filed by amendment. |
II-6