20-F
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
FORM 20-F
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(Mark One)
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o
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REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF
THE SECURITIES EXCHANGE ACT OF 1934
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OR
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x
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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For the fiscal year ended December 31, 2008
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OR
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o
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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OR
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o
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SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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Date of
event requiring this shell company report
For the transition period
from
to
Commission file number
333-146972
Navios Maritime Partners
L.P.
(Exact name of Registrant as
specified in its charter)
Not Applicable
(Translation of Registrants
Name into English)
Republic of Marshall Islands
(Jurisdiction of incorporation or
organization)
85 Akti Miaouli Street
Piraeus, Greece 185 38
(Address of principal executive
offices)
Securities registered or to be registered pursuant to
Section 12(b) of the Act.
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Title of each class
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Name of each exchange on which registered
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Common Units
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New York Stock Exchange LLC
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Securities
registered or to be registered pursuant to Section 12(g) of
the Act. |
None |
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Securities
for which there is a reporting obligation pursuant to
Section 15(d) of the Act. |
None |
Indicate the number of outstanding shares of each of the
issuers classes of capital or common stock as of the close
of the period covered by the annual report:
13,631,415
Common Units
7,621,843 Subordinated Units.
Indicate by check mark if the registrant is a well known
seasoned issuer, as defined in Rule 405 of the Securities
Act. Yes o No x
If this report is an annual or transition report, indicate by
check mark if the registrant is not required to file reports
pursuant to Section 13 or (15)(d) of the Securities
Exchange Act of
1934. Yes o No x
Indicate by check mark whether the registrant (1) has
filed all reports required to be filed by Section 13 or
15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter periods that the
registrant was required to file such reports), and (2) has
been subject to such reporting requirements for the past
90 days. Yes x No o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, or a non-accelerated
filer. See definition of accelerated filer and large
accelerated filer in
Rule 12b-2
of the Exchange Act. (Check one):
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Large
Accelerated
Filer o
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Accelerated
Filer o
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Non-Accelerated
Filer x
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Indicate by check mark which financial statement item the
registrant has elected to follow.
Item 17 o
Item 18 x
If this is an annual report, indicate by check mark whether
the registrant is a shell company (as defined in
Rule 12b-2
of the Exchange
Act). Yes o No x
FORWARD
LOOKING STATEMENTS
This Annual Report should be read in conjunction with the
consolidated financial statements and accompanying notes
included in this report.
Statements included in this annual report which are not
historical facts (including our statements concerning plans and
objectives of management for future operations or economic
performance, or assumptions related thereto) are forward-looking
statements. In addition, we and our representatives may from
time to time make other oral or written statements which are
also forward-looking statements. Such statements include, in
particular, statements about our plans, strategies, business
prospects, changes and trends in our business, and the markets
in which we operate as described in this annual report. In some
cases, you can identify the forward-looking statements by the
use of words such as may, could,
should, would, expect,
plan, anticipate, intend,
forecast, believe, estimate,
predict, propose, potential,
continue or the negative of these terms or other
comparable terminology.
Forward-looking statements appear in a number of places and
include statements with respect to, among other things:
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our ability to make cash distributions on the units;
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our future financial condition or results of operations and our
future revenues and expenses;
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our anticipated growth strategies;
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future charter hire rates and vessel values;
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the repayment of debt;
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our ability to access debt and equity markets;
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planned capital expenditures and availability of capital
resources to fund capital expenditures;
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future supply of, and demand for, drybulk commodities;
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increases in interest rates;
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our ability to maintain long-term relationships with major
commodity traders;
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our ability to leverage to our advantage Navios Maritime
Holdings Inc.s relationships and reputation in the
shipping industry;
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our continued ability to enter into long-term, fixed-rate time
charters;
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our ability to maximize the use of our vessels, including the
re-deployment or disposition of vessels no longer under
long-term time charter;
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timely purchases and deliveries of newbuilding vessels;
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future purchase prices of newbuildings and secondhand vessels;
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our ability to compete successfully for future chartering and
newbuilding opportunities;
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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;
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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;
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the anticipated taxation of our partnership and our unitholders;
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estimated future maintenance and replacement capital
expenditures;
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2
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expected demand in the drybulk shipping sector in general and
the demand for our Panamax and Capesize vessels in particular;
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our ability to retain key executive officers;
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customers increasing emphasis on environmental and safety
concerns;
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future sales of our common units in the public market; and
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our business strategy and other plans and objectives for future
operations.
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These and other forward-looking statements are made based upon
managements current plans, expectations, estimates,
assumptions and beliefs concerning future events impacting us
and therefore involve a number of risks and uncertainties,
including those set forth below, as well as those risks
discussed in Item 3. Key Information.
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a lack of sufficient cash to pay the minimum quarterly
distribution on our common units;
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the cyclical nature of the international drybulk shipping
industry;
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fluctuations in charter rates for drybulk carriers;
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the historically high numbers of newbuildings currently under
construction in the drybulk industry;
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changes in the market values of our vessels and the vessels for
which we have purchase options;
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an inability to expand relationships with existing customers and
obtain new customers;
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the loss of any customer or charter or vessel;
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the aging of our fleet and resultant increases in operations
costs;
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damage to our vessels;
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general domestic and international political conditions,
including wars and terrorism; and
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other factors detailed from time to time in our periodic reports
filed with the Securities and Exchange Commission.
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The risks, uncertainties and assumptions involve known and
unknown risks and are inherently subject to significant
uncertainties and contingencies, many of which are beyond our
control. We caution that forward-looking statements are not
guarantees and that actual results could differ materially from
those expressed or implied in the forward-looking statements.
We undertake no obligation to update any forward-looking
statement or statements to reflect events or circumstances after
the date on which such statement is made or to reflect the
occurrence of unanticipated events. New factors emerge from time
to time, and it is not possible for us to predict all of these
factors. Further, we cannot assess the impact of each such
factor on our business or the extent to which any factor, or
combination of factors, may cause actual results to be
materially different from those contained in any forward-looking
statement.
3
PART I
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Item 1.
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Identity
of Directors, Senior Management and Advisers
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Not Applicable.
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Item 2.
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Offer
Statistics and Expected Timetable
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Not Applicable.
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A.
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Selected
Financial Data
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In connection with the initial public offering (IPO)
of Navios Maritime Partners L.P. (sometimes referred to as
Navios Partners, the Partnership,
we or us), on November 16, 2007
Navios Partners acquired interests in five wholly owned
subsidiaries of Navios Maritime Holdings Inc. (Navios
Holdings), each of which owned a Panamax drybulk carrier
(the Initial Vessels), as well as interests in three
wholly owned subsidiaries of Navios Holdings that operated and
had options to purchase three additional vessels.
The following tables present, in each case for the periods and
as of the dates indicated:
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for the periods prior to the IPO, selected historical financial
and operating data of the five vessel owing subsidiaries of
Navios Holdings (collectively with Navios Holdings, the
Company) that owned the Initial Vessels prior to the
IPO; and
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selected historical financial and operating data of Navios
Partners and its subsidiaries since the IPO.
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On August 25, 2005, International Shipping Enterprises,
Inc. (ISE) acquired Navios Holdings through the
purchase of all of the outstanding shares of common stock. As a
result of this acquisition, Navios Holdings became a
wholly-owned subsidiary of ISE. In addition, on August 25,
2005, simultaneously with the acquisition of Navios Holdings,
ISE effected a reincorporation from the State of Delaware to the
Republic of the Marshall Islands through a downstream merger
with and into its newly acquired wholly owned subsidiary, whose
name was and continued to be Navios Maritime Holdings Inc. In
relation to the acquisition of Navios Holdings by ISE and
subsequent downstream merger, the results of operations of
Navios Holdings to August 25, 2005, are labeled as
Predecessor and remain historically reported. The
results of operations from August 26, 2005 forward are
labeled as Successor and reflect the combined
operations of Navios Holdings and ISE. Accordingly, the
accompanying financial statements of the Company which derived
their information from Navios Holdings also follow the same
Predecessor and Successor presentation
for periods which ended August 25, 2005 and began on
August 26, 2005, respectively.
The selected historical financial and operating data has been
prepared on the following basis:
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the historical financial and operating data as of
December 31, 2004 are derived from the unaudited
consolidated financial statements of the Company;
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the historical financial and operating data as of
December 31, 2005, 2006, 2007 and 2008 and for the year
ended December 31, 2004 and for the periods January 1,
2005 to August 25, 2005 and August 26, 2005 to
December 31, 2005 and for the years ended December 31,
2006, 2007 and 2008 are derived from the audited consolidated
financial statements of Navios Partners; and
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The historical consolidated financial statements of the Company
prior to the IPO on November 16, 2007 have been carved out
of the consolidated financial statements of Navios Holdings and
reflect the consolidated financial position, results of
operations and cash flows of the Company. These consolidated
financial statements have been presented using historical
carrying costs of the five vessel-owning subsidiaries for all
periods presented as each vessel-owning company was under common
control of Navios Holdings. Results of operations have been
included from the respective dates that (i) the
vessel-owning subsidiaries were acquired or when rights to
operate the vessels were obtained by Navios Holdings or Navios
Partners, as the case may be, or (ii) at the inception of
charter-in agreements for chartered-in vessels.
4
Our IPO and certain other transactions that occurred during 2007
have affected our historical performance or will affect our
future performance. As a result, the following tables should be
read together with, and are qualified in their entirety by
reference to, (a) Item 5. Operating and
Financial Review and Prospects, included herein, and
(b) the historical consolidated financial statements and
the accompanying notes and the Report of Independent Registered
Public Accounting Firm therein, with respect to the consolidated
financial statements for the years ended December 31, 2008,
2007 and 2006.
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Year ended December 31
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Predecessor
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Predecessor
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Successor
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Successor
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Year
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January 1,
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August 26,
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Ended
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2005 to
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2005 to
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December 31,
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August 25,
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December 31,
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2004
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2005
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2005
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2006
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2007
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2008
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(Expressed in thousands of US Dollars except per unit
data)
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Statement of Operations Data
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Time charter and voyage revenue
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$
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3,715
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$
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5,780
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$
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3,655
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$
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31,764
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$
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50,352
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$
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75,082
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Losses from forward freight agreements
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(2,923
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Time charter and voyage expenses
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(3,387
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)
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(2,305
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)
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(1,266
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)
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(1,344
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)
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(8,352
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)
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(11,598
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Direct vessel expenses
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(69
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)
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(5,626
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)
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(5,608
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)
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(578
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)
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Management fees
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(920
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)
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(9,275
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)
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General and administrative expenses
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(392
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)
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(284
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)
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(168
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)
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(698
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)
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(1,419
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)
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(3,798
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Depreciation and amortization
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(1,152
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)
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(8,250
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)
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(9,375
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)
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(11,865
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)
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Interest expense and finance cost, net
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(81
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)
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(6,286
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)
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(5,522
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)
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(9,216
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)
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Interest received
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301
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Other income
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61
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93
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23
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Other expenses
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(74
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)
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(226
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)
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(318
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)
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Income/ (loss) before income taxes
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$
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(64
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)
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$
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3,191
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$
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919
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$
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6,624
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$
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19,023
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$
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28,758
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Deferred income tax
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485
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Net income (loss)
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$
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(64
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)
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$
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3,191
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$
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919
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$
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6,624
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$
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19,508
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$
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28,758
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Earnings per unit (basic and diluted):
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Common unit (basic and diluted)
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$
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$
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$
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$
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$
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0.15
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$
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1.56
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Subordinated unit (basic and diluted)
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$
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(0.01
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)
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$
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0.41
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$
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0.12
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$
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0.85
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$
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2.30
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$
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1.22
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General partner unit (basic and diluted)
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$
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(0.00
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$
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0.17
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$
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0.05
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$
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0.36
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$
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1.06
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$
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1.53
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Balance Sheet Data (at period end)
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Current assets, including cash
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$
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1,080
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7,549
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$
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6,956
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$
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11,312
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$
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29,058
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Vessels, net
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96,296
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143,834
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135,976
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291,340
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Total assets
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1,080
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118,986
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152,243
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205,054
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322,907
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Current portion of long-term debt
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6,056
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7,893
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40,000
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Total long-term debt, including current portion
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65,100
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77,758
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165,000
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235,000
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Total Owners Net Investment and Partners Capital
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509
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49,078
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70,902
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|
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26,786
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76,847
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Cash Flow Data
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Net cash provided by operating activities
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$
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|
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$
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520
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$
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14,496
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|
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|
10,516
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|
|
|
41,744
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Net cash used in investing activities
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|
|
|
|
|
|
|
|
|
|
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(76,058
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)
|
|
|
(36,985
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)
|
|
|
|
|
|
|
(69,505
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)
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Net cash provided by/ (used in) financing activities
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|
|
|
|
|
|
|
|
|
|
|
75,538
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|
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22,489
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|
|
|
(421
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)
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|
|
46,040
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Fleet Data:
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Vessels at end of
period(1)
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|
1
|
|
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1
|
|
|
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4
|
|
|
|
5
|
|
|
|
7
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9
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(1)
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Includes owned and chartered-in
vessels.
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5
Risk
Factors
Risks
Inherent in Our Business
We may
not have sufficient cash from operations to enable us to pay the
minimum quarterly distribution on our common units following the
establishment of cash reserves and payment of fees and expenses
or to maintain or increase distributions.
We may not have sufficient cash available each quarter to pay
the minimum quarterly distribution of $0.35 per common unit
following the establishment of cash reserves and payment of fees
and expenses. The amount of cash we can distribute on our common
units principally depends upon the amount of cash we generate
from our operations, which may fluctuate based on numerous
factors including, among other things:
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the rates we obtain from our charters and the market for
long-term charters when we recharter our vessels;
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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 2009;
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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;
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demand for drybulk commodities;
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supply of drybulk vessels;
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prevailing global and regional economic and political
conditions; and
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the effect of governmental regulations and maritime
self-regulatory organization standards on the conduct of our
business.
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The actual amount of cash we will have available for
distribution also will depend on other factors, some of which
are beyond our control, such as:
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the level of capital expenditures we make, including those
associated with maintaining vessels, building new vessels,
acquiring existing vessels and complying with regulations;
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our debt service requirements and restrictions on distributions
contained in our debt instruments;
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interest rate fluctuations;
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the cost of acquisitions, if any;
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fluctuations in our working capital needs;
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our ability to make working capital borrowings, including the
payment of distributions to unitholders; and
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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.
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The amount of cash we generate from our operations may differ
materially from our profit or loss for the period, which will be
affected by non-cash items. As a result of this and the other
factors mentioned above, we may make cash distributions during
periods when we record losses and may not make cash
distributions during periods when we record net income.
The
cyclical nature of the international drybulk shipping industry
may lead to decreases in long-term charter rates and lower
vessel values, resulting in decreased distributions to our
common unitholders.
The shipping business, including the dry cargo market, is
cyclical in varying degrees, experiencing severe fluctuations in
charter rates, profitability and, consequently, vessel values.
For example, during the period from October 30, 2007 to
December 31, 2008, the Baltic Exchanges Panamax time
charter average daily rates
6
experienced a low of $3,537 and a high of $94,977. Additionally
during the period from January 1, 2008 to December 31,
2008, the Baltic Exchanges Capesize time charter average
daily rates experienced a low of $2,316 and a high of $233,988.
We anticipate that the future demand for our drybulk carriers
and drybulk charter rates will be dependent upon demand for
imported commodities, economic growth in the emerging markets,
including the Asia Pacific region, India, Brazil and Russia and
the rest of the world, seasonal and regional changes in demand
and changes to the capacity of the world fleet. Recent adverse
economic, political, social or other developments have decreased
demand and prospects for growth in the shipping industry and
thereby could reduce revenue significantly. A decline in demand
for commodities transported in drybulk carriers or an increase
in supply of drybulk vessels could cause a further decline in
charter rates, which could materially adversely affect our
results of operations and financial condition. The demand for
vessels, in general, has been influenced by, among other factors:
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global and regional economic conditions;
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developments in international trade;
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changes in seaborne and other transportation patterns, such as
port congestion and canal closures;
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weather and crop yields;
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armed conflicts and terrorist activities;
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political developments; and
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embargoes and strikes.
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In connection with the IPO, we entered into a share purchase
agreement with a subsidiary of Navios Holdings to purchase its
interests in the subsidiary that owns the newbuilding Capesize
Navios TBN I at the pre-determined purchase price of
$130.0 million. We intend to purchase from a subsidiary of
Navios Holdings its interests in the subsidiary that owns the
newbuilding upon delivery of the vessel to the subsidiary. Even
if the market value of the Capesize declines by the time the
newbuilding is actually delivered to the vessel-owning
subsidiary, we will still be required to purchase the interests
in that subsidiary at the price specified in the share purchase
agreement. As a result, we may pay substantially more for that
vessel than we would pay if we were to purchase that vessel from
an unaffiliated third party.
If we sell a vessel at a time when the market value of our
vessels has fallen, the sale may be at less than the
vessels carrying amount, resulting in a loss. A decline in
the market value of our vessels may be a default under our
existing credit facility of $295.0 million, or any other
prospective credit facility to which we become a party, affect
our ability to refinance our existing credit facility
and/or limit
our ability to obtain additional financing.
Charter
rates in the drybulk shipping industry have decreased from their
historically high levels and may decrease further in the future,
which may adversely affect our earnings and ability to pay
dividends.
The industrys current charter rates have significantly
decreased from their historic highs reached in the second
quarter of 2008. If the drybulk shipping industry, which has
been highly cyclical, is depressed in the future when our
charters expire or at a time when we may want to sell a vessel,
our earnings and available cash flow may be adversely affected.
We cannot assure you that we will be able to successfully
charter our vessels in the future or renew our existing charters
at rates sufficient to allow us to operate our business
profitably, to meet our obligations, including payment of debt
service to our lenders, or to pay dividends to our unitholders.
Our ability to renew the charters on our vessels on the
expiration or termination of our current charters, or on vessels
that we may acquire in the future, the charter rates payable
under any replacement charters and vessel values will depend
upon, among other things, economic conditions in the sectors in
which our vessels operate at that time, changes in the supply
and demand for vessel capacity and changes in the supply and
demand for the transportation of commodities.
All of our time charters are scheduled to expire on dates
ranging from December 2010 to January 2018. If, upon expiration
or termination of these or other contracts, long-term recharter
rates are lower than existing
7
rates, particularly considering that we intend to enter into
long-term charters, or if we are unable to obtain replacement
charters, our earnings, cash flow and our ability to make cash
distributions to our unitholders under any new contracts could
be materially adversely affected.
The
market values of our vessels, which have declined from
historically high levels, may fluctuate significantly, which
could cause us to breach covenants in our existing credit
facility and result in the foreclosure on our mortgaged
vessels.
Factors that influence vessel values include:
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number of newbuilding deliveries;
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changes in environmental and other regulations that may limit
the useful life of vessels;
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changes in global drybulk commodity supply;
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types and sizes of vessels;
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development of and increase in use of other modes of
transportation;
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cost of vessel acquisitions;
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governmental or other regulations;
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prevailing level of charter rates; and
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general economic and market conditions affecting the shipping
industry.
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If the market values of our owned vessels decrease, we may
breach covenants contained in our existing credit facility. We
purchased our vessels from Navios Holdings based on market
prices which were at historically high levels. If we breach such
covenants and are unable to remedy any relevant breach, our
lenders could accelerate our debt and foreclose on the
collateral, including our vessels. Any loss of vessels would
significantly decrease our ability to generate positive cash
flow from operations and therefore service our debt. In
addition, if the book value of a vessel is impaired due to
unfavorable market conditions, or a vessel is sold at a price
below its book value, we would incur a loss.
We must
make substantial capital expenditures to maintain the operating
capacity of our fleet, which will reduce our cash available for
distribution. In addition, each quarter our board of directors
is required to deduct estimated maintenance and replacement
capital expenditures from operating surplus, which may result in
less cash available to unitholders than if actual maintenance
and replacement capital expenditures were deducted.
We must make substantial capital expenditures to maintain, over
the long term, the operating capacity of our fleet. These
maintenance and replacement capital expenditures include capital
expenditures associated with drydocking a vessel, modifying an
existing vessel or acquiring a new vessel to the extent these
expenditures are incurred to maintain the operating capacity of
our fleet. These expenditures could increase as a result of
changes in:
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the cost of our labor and materials;
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the cost of suitable replacement vessels;
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customer/market requirements;
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increases in the size of our fleet; and
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governmental regulations and maritime self-regulatory
organization standards relating to safety, security or the
environment.
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Our significant maintenance and replacement capital expenditures
will reduce the amount of cash we have available for
distribution to our unitholders. Any costs associated with
scheduled drydocking until November 2009 are included in a daily
fee of $4,000 per owned Panamax vessel and $5,000 per owned
8
Capesize vessel that we pay Navios ShipManagement Inc., a
subsidiary of Navios Holdings, under a management agreement. The
initial term of the management agreement is until November 2012
and this fee is fixed until November 2009. From November 2009 to
November 2012, we expect that we will reimburse Navios
ShipManagement for all of the actual operating costs and
expenses it incurs in connection with the management of our
fleet, which may result in significantly higher fees for that
period. In the event our management agreement is not renewed, we
will separately deduct estimated capital expenditures associated
with drydocking from our operating surplus in addition to
estimated replacement capital expenditures.
Our partnership agreement requires our board of directors to
deduct estimated, rather than actual, maintenance and
replacement capital expenditures from operating surplus each
quarter in an effort to reduce fluctuations in operating
surplus. The amount of estimated capital expenditures deducted
from operating surplus is subject to review and change by the
conflicts committee of our board of directors at least once a
year. If our board of directors underestimates the appropriate
level of estimated maintenance and replacement capital
expenditures, we may have less cash available for distribution
in future periods when actual capital expenditures begin to
exceed previous estimates.
If we
expand the size of our fleet in the future, we generally will be
required to make significant installment payments for
acquisitions of vessels prior to their delivery and generation
of revenue. In addition, we intend to finance the purchase of
Navios TBN I, to be delivered in 2009, partly with debt and
partly by issuing additional equity securities. Depending on
whether we finance our expenditures through cash from operations
or by issuing debt or equity securities, our ability to make
cash distributions to unitholders may be diminished or our
financial leverage could increase or our unitholders could be
diluted.
The actual cost of a vessel varies significantly depending on
the market price, the size and specifications of the vessel,
governmental regulations and maritime self-regulatory
organization standards.
We have entered into an agreement to purchase the newbuilding
Navios TBN I and related time charter in June 2009 for
$130.0 million. We intend to finance the purchase of Navios
TBN I partially with borrowings under our existing credit
facility and partially by issuing additional common units or
other equity securities. In addition, we have filed a shelf
registration statement on January 29, 2009 under which we
may sell any combination of securities (debt or equity) for up
to a total of $500.0 million.
If we purchase additional vessels in the future, we generally
will be required to make installment payments prior to their
delivery. If we finance these acquisition costs by issuing debt
or equity securities, we will increase the aggregate amount of
interest payments or minimum quarterly distributions we must
make prior to generating cash from the operation of the vessel.
To fund the remaining portion of these and other capital
expenditures, we will be required to use cash from operations or
incur borrowings or raise capital through the sale of debt or
additional equity securities. Use of cash from operations will
reduce cash available for distributions to unitholders. Our
ability to obtain bank financing or to access the capital
markets for future offerings may be limited by our financial
condition at the time of any such financing or offering as well
as by adverse market conditions resulting from, among other
things, general economic conditions and contingencies and
uncertainties that are beyond our control. Our failure to obtain
the funds for necessary future capital expenditures could have a
material adverse effect on our business, results of operations
and financial condition and on our ability to make cash
distributions. Even if we successfully obtain necessary funds,
the terms of such financings could limit our ability to pay cash
distributions to unitholders. In addition, incurring additional
debt may significantly increase our interest expense and
financial leverage, and issuing additional equity securities may
result in significant unitholder dilution and would increase the
aggregate amount of cash required to meet our minimum quarterly
distribution to unitholders, which could have a material adverse
effect on our ability to make cash distributions to unitholders.
9
Our debt
levels may limit our flexibility in obtaining additional
financing and in pursuing other business opportunities and our
interest rates under our existing credit facility may fluctuate
and may impact our operations.
Upon the closing of the IPO, we entered into our existing credit
facility which, as amended, provided us with the ability to
borrow up to $295.0 million, of which $235.0 million
was outstanding as of December 31, 2008. We intend to
borrow an additional $60.0 million to finance a portion of
the purchase price of Navios TBN I in June 2009. We do not have
the funds or availability under our existing credit facility to
purchase the Navios TBN I and will need to either issue
additional units to Navios Holdings as part of the purchase
consideration or raise the funds through the issuance of
additional equity or debt securities to satisfy our obligation.
There can be no assurance that we will be able to obtain such
financing. We have the ability to incur additional debt, subject
to limitations in our existing credit facility. Our level of
debt could have important consequences to us, including the
following:
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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;
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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;
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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
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our debt level may limit our flexibility in responding to
changing business and economic conditions.
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Our ability to service our debt depends upon, among other
things, our future financial and operating performance, which
will be affected by prevailing economic conditions and
financial, business, regulatory and other factors, some of which
are beyond our control. Our ability to service debt under our
existing credit facility also will depend on market interest
rates, since the interest rates applicable to our borrowings
will fluctuate with the London Interbank Offered Rate, or LIBOR,
or the prime rate. We do not currently hedge against increases
in such rates and, accordingly, significant increases in such
rate would require increased debt levels and reduce
distributable cash. If our operating results are not sufficient
to service our current or future indebtedness, we will be forced
to take actions such as reducing distributions, reducing or
delaying our business activities, acquisitions, investments or
capital expenditures, selling assets, restructuring or
refinancing our debt, or seeking additional equity capital or
bankruptcy protection. We may not be able to affect any of these
remedies on satisfactory terms, or at all.
Our
existing credit facility contains restrictive covenants, which
may limit our business and financing activities.
The operating and financial restrictions and covenants in our
existing credit facility and any future credit facility could
adversely affect our ability to finance future operations or
capital needs or to engage, expand or pursue our business
activities. For example, our existing credit facility requires
the consent of our lenders or limits our ability to, among other
items:
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incur or guarantee indebtedness;
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charge, pledge or encumber the vessels;
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merge or consolidate;
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change the flag, class or commercial and technical management of
our vessels;
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make cash distributions;
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make new investments (including the acquisition of Navios TBN
I); and
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sell or change the ownership or control of our vessels.
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10
Our existing credit facility also requires us to comply with the
International Safety Management Code or ISM Code and
International Ship and Port Facilities Security Code or ISPS
Code and to maintain valid safety management certificates and
documents of compliance at all times.
In addition, our existing credit facility as amended on
June 25, 2008 requires us to:
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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 $13.0 million per year (increasing by
$9.0 million per year on each of December 31, 2009,
December 31, 2010 and December 31, 2011 until it
reaches $40.0 million, at which level it is required to be
maintained thereafter);
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maintain a ratio of EBITDA to interest expense of at least 2.00
to 1.00; and
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maintain a ratio of total liabilities to total assets (as
defined in our credit facility) of less than 0.75 to 1.00.
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In January 2009, Navios Partners amended further the terms of
its existing credit facility. The amendment is effective until
January 15, 2010 and provides for (a) repayment of
$40.0 million which took place in February 2009,
(b) maintaining cash reserves balance into a pledged
account with the agent bank as follows: $2.5 million on
January 31, 2009; $5.0 million on March 31, 2009;
$7.5 million on June 30, 2009, $10.0 million on
September 30, 2009; $12.5 million on December 31,
2009 and (c) a margin of 2.25%. Further, the covenants were
amended by (a) reducing the minimum net worth to
$100.0 million, (b) reducing the VMC (Value
Maintenance Covenant) to be at 100% using charter free values,
(c) the minimum leverage covenant to be calculated using
charter inclusive adjusted values until December 31, 2009
and (d) a new VMC was introduced based on charter attached
valuations to be at 143%. At December 31, 2008, Navios
Partners was in compliance with the financial covenants as
required under its January 2009 amended revolving loan facility.
However, if we were required to use the original loan covenants
on December 31, 2008 to test compliance, we may not have
been in compliance with certain covenants using charter free
valuations.
Our ability to comply with the covenants and restrictions that
are contained in our existing credit facility and any other debt
instruments we may enter into in the future may be affected by
events beyond our control, including prevailing economic,
financial and industry conditions. If market or other economic
conditions deteriorate, our ability to comply with these
covenants may be impaired. If we are in breach of any of the
restrictions, covenants, ratios or tests in our existing credit
facility, especially if we trigger a cross default currently
contained in certain of our loan agreements, a significant
portion of our obligations may become immediately due and
payable, and our lenders commitment to make further loans
to us may terminate. We may not have, or be able to obtain,
sufficient funds to make these accelerated payments. In
addition, our obligations under our existing credit facility
will be secured by certain of our vessels, and if we are unable
to repay borrowings under such credit facility, lenders could
seek to foreclose on those vessels.
Restrictions
in our debt agreements may prevent us from paying distributions
to unitholders.
Our payment of principal and interest on the debt will reduce
cash available for distribution on our units. In addition, our
credit facility prohibits the payment of distributions if we are
not in compliance with certain financial covenants or upon the
occurrence of an event of default.
Events of default under our credit facility include, among other
things, the following:
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failure to pay any principal, interest, fees, expenses or other
amounts when due;
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failure to observe any other agreement, security instrument,
obligation or covenant beyond specified cure periods in certain
cases;
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default under other indebtedness;
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an event of insolvency or bankruptcy;
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material adverse change in the financial position or prospects
of us or our general partner;
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failure of any representation or warranty to be materially
correct; and
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11
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failure of Navios Holdings or its affiliates to own at least 30%
of us.
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We anticipate that any subsequent refinancing of our current
debt or any new debt will have similar restrictions.
We depend
on Navios Holdings and its affiliates to assist us in operating
and expanding our business.
Pursuant to a management agreement between us and a subsidiary
of Navios Holdings, Navios ShipManagement Inc., Navios
ShipManagement provides to us significant commercial and
technical management services (including the commercial and
technical management of our vessels, vessel maintenance and
crewing, purchasing and insurance and shipyard supervision). In
addition, pursuant to an administrative services agreement
between us and Navios ShipManagement, Navios ShipManagement
provides to us significant administrative, financial and other
support services. Our operational success and ability to execute
our growth strategy depends significantly upon Navios
ShipManagements satisfactory performance of these
services. Our business will be harmed if Navios ShipManagement
fails to perform these services satisfactorily, if Navios
ShipManagement cancels either of these agreements, or if Navios
ShipManagement stops providing these services to us. We may also
in the future contract with Navios Holdings for it to have
newbuildings constructed on our behalf and to incur the
construction-related financing. We would purchase the vessels on
or after delivery based on an
agreed-upon
price.
Our ability to enter into new charters and expand our customer
relationships will depend largely on our ability to leverage our
relationship with Navios Holdings and its reputation and
relationships in the shipping industry. If Navios Holdings
suffers material damage to its reputation or relationships, it
may harm our ability to:
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renew existing charters upon their expiration;
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obtain new charters;
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successfully interact with shipyards during periods of shipyard
construction constraints;
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obtain financing on commercially acceptable terms; or
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maintain satisfactory relationships with suppliers and other
third parties.
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If our ability to do any of the things described above is
impaired, it could have a material adverse effect on our
business, results of operations and financial condition and our
ability to make cash distributions.
As we
expand our business, we may have difficulty managing our growth,
which could increase expenses.
We intend to seek to grow our fleet, either through purchases,
the increase of the number of chartered-in vessels or through
the acquisitions of businesses. The addition of vessels to our
fleet or the acquisition of new businesses will impose
significant additional responsibilities on our management and
staff. We will also have to increase our customer base to
provide continued employment for the new vessels. Our growth
will depend on:
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locating and acquiring suitable vessels;
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identifying and consummating acquisitions or joint ventures;
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integrating any acquired business successfully with our existing
operations;
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enhancing our customer base;
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managing our expansion; and
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obtaining required financing.
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Growing any business by acquisition presents numerous risks such
as undisclosed liabilities and obligations, difficulty in
obtaining additional qualified personnel, and managing
relationships with customers
12
and suppliers and integrating newly acquired operations into
existing infrastructures. We cannot give any assurance that we
will be successful in executing our growth plans or that we will
not incur significant expenses and losses in connection
therewith or that our acquisitions will perform as expected,
which could materially adversely affect our results of
operations and financial condition.
Our
growth depends on continued growth in demand for drybulk
commodities and the shipping of drybulk cargoes.
Our growth strategy focuses on expansion in the drybulk shipping
sector. Accordingly, our growth depends on continued growth in
world and regional demand for drybulk commodities and the
shipping of drybulk cargoes, which could be negatively affected
by a number of factors, such as declines in prices for drybulk
commodities, or general political and economic conditions.
Reduced demand for drybulk commodities and the shipping of
drybulk cargoes would have a material adverse effect on our
future growth and could harm our business, results of operations
and financial condition. In particular, Asian Pacific economies
and India have been the main driving force behind the current
increase in seaborne drybulk trade and the demand for drybulk
carriers. A negative change in economic conditions in any Asian
Pacific country, but particularly in China or Japan, as well as
India, may have a material adverse effect on our business,
financial condition and results of operations, as well as our
future prospects, by reducing demand and resultant charter rates.
Our
growth depends on our ability to expand relationships with
existing customers and obtain new customers, for which we will
face substantial competition.
Long-term time charters have the potential to provide income at
pre-determined rates over more extended periods of time.
However, the process for obtaining longer term time charters is
highly competitive and generally involves a lengthy, intensive
and continuous screening and vetting process and the submission
of competitive bids that often extends for several months. In
addition to the quality, age and suitability of the vessel,
longer term shipping contracts tend to be awarded based upon a
variety of other factors relating to the vessel operator,
including:
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the operators environmental, health and safety record;
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compliance with International Maritime Organization, or IMO,
standards and the heightened industry standards that have been
set by some energy companies;
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shipping industry relationships, reputation for customer
service, technical and operating expertise;
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shipping experience and quality of ship operations, including
cost-effectiveness;
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quality, experience and technical capability of crews;
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the ability to finance vessels at competitive rates and overall
financial stability;
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relationships with shipyards and the ability to obtain suitable
berths;
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construction management experience, including the ability to
procure on-time delivery of new vessels according to customer
specifications;
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willingness to accept operational risks pursuant to the charter,
such as allowing termination of the charter for force majeure
events; and
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competitiveness of the bid in terms of overall price.
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It is likely that we will face substantial competition for
long-term charter business from a number of experienced
companies. Many of these competitors have significantly greater
financial resources than we do. It is also likely that we will
face increased numbers of competitors entering into our
transportation sectors, including in the drybulk sector. Many of
these competitors have strong reputations and extensive
resources and experience. Increased competition may cause
greater price competition, especially for long-term charters.
13
As a result of these factors, we may be unable to expand our
relationships with existing customers or obtain new customers
for long-term charters on a profitable basis, if at all.
However, even if we are successful in employing our vessels
under longer term charters, our vessels will not be available
for trading in the spot market during an upturn in the drybulk
market cycle, when spot trading may be more profitable. If we
cannot successfully employ our vessels in profitable time
charters our results of operations and operating cash flow could
be adversely affected.
We may be
unable to make or realize expected benefits from acquisitions,
and implementing our growth strategy through acquisitions may
harm our business, financial condition and operating
results.
Our growth strategy focuses on a gradual expansion of our fleet.
Any acquisition of a vessel may not be profitable to us at or
after the time we acquire it and may not generate cash flow
sufficient to justify our investment. In addition, our growth
strategy exposes us to risks that may harm our business,
financial condition and operating results, including risks that
we may:
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fail to realize anticipated benefits, such as new customer
relationships, cost-savings or cash flow enhancements;
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be unable to hire, train or retain qualified shore and seafaring
personnel to manage and operate our growing business and fleet;
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decrease our liquidity by using a significant portion of our
available cash or borrowing capacity to finance acquisitions;
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significantly increase our interest expense or financial
leverage if we incur additional debt to finance acquisitions;
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incur or assume unanticipated liabilities, losses or costs
associated with the business or vessels acquired; or
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incur other significant charges, such as impairment of goodwill
or other intangible assets, asset devaluation or restructuring
charges.
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Delays,
cancellations or non-completion of deliveries of newbuilding
vessels could harm our operating results.
One of our vessels, Navios TBN I is newbuilding the delivery of
which could be delayed, not completed or cancelled, which would
delay our receipt of revenues under the charters or other
contracts related to the vessel. The shipbuilder could fail to
deliver the newbuilding vessel as agreed or their counterparty
could cancel the purchase contract if the shipbuilder fails to
meet its obligations. In addition, under charters we may enter
into that are related to a newbuilding, if our delivery of the
newbuilding to our customer is delayed, we may be required to
pay liquidated damages during the delay. For prolonged delays,
the customer may terminate the charter and, in addition to the
resulting loss of revenues, we may be responsible for
additional, substantial liquidated damages.
The completion and delivery of newbuildings could be delayed,
cancelled or otherwise not completed because of:
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quality or engineering problems;
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changes in governmental regulations or maritime self-regulatory
organization standards;
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work stoppages or other labor disturbances at the shipyard;
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bankruptcy or other financial crisis of the shipbuilder;
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a backlog of orders at the shipyard;
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political or economic disturbances;
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weather interference or catastrophic event, such as a major
earthquake or fire;
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requests for changes to the original vessel specifications;
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shortages of or delays in the receipt of necessary construction
materials, such as steel;
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inability to finance the construction or conversion of the
vessels; or
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inability to obtain requisite permits or approvals.
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If delivery of a vessel is materially delayed, it could
materially adversely affect our results of operations and
financial condition and our ability to make cash distributions.
The loss
of a customer or charter or vessel could result in a loss of
revenues and cash flow in the event we are unable to replace
such customer, charter or vessel.
For the year ended December 31, 2007, Cargill International
S.A. The Sanko Steamship Co. Ltd., Mitsui O.S.K. Lines, Ltd. and
Augustea Imprese Maritime accounted for approximately 30.2%,
22.0%, 17.7% and 13.9% respectively, of total revenues. For the
year ended December 31, 2008, we have seven charter
counterparties and some other major ones are Mitsui O.S.K.
Lines, Ltd., Cargill International S.A., The Sanko Steamship Co.
Ltd., Daiichi Chuo Kisen Kaisha and Augustea Imprese Maritime
which accounted for approximately 28.2%, 22.2%, 15.6%, 11.9% and
9.7% respectively, of total revenues. Upon delivery of Navios
TBN I, we will have ten vessels with seven customers.
We could lose a customer or the benefits of a charter if:
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the customer fails to make charter payments because of its
financial inability, disagreements with us or otherwise;
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the customer exercises certain rights to terminate the charter;
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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
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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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If we lose a charter, we may be unable to re-deploy the related
vessel on terms as favorable to us due to the long-term nature
of most charters and the cyclical nature of the industry or we
may be forced to charter the vessel on the spot market at then
market rates which may be less favorable that the charter that
has been terminated. If we are unable to re-deploy a vessel for
which the charter has been terminated, we will not receive any
revenues from that vessel, but we may be required to pay
expenses necessary to maintain the vessel in proper operating
condition. In addition, if a customer exercises any right to
purchase a vessel to the extent we have granted any such rights,
we would not receive any further revenue from the vessel and may
be unable to obtain a substitute vessel and charter. This may
cause us to receive decreased revenue and cash flows from having
fewer vessels operating in our fleet. Any replacement
newbuilding would not generate revenues during its construction,
and we may be unable to charter any replacement vessel on terms
as favorable to us as those of the terminated charter. Any
compensation under our charters for a purchase of the vessels
may not adequately compensate us for the loss of the vessel and
related time charter.
The permanent loss of a customer, time charter or vessel, or a
decline in payments under our charters, could have a material
adverse effect on our business, results of operations and
financial condition and our ability to make cash distributions
in the event we are unable to replace such customer, time
charter or vessel.
To mitigate this risk we have insured each of our charter-out
contracts, for the length of the entire agreement, through a
AA+ rated European Union governmental agency. If the
charterer goes into payment default under the terms of the
policy the insurance company will reimburse the losses for the
remaining term of the charter-out contract.
15
The risks
and costs associated with vessels increase as the vessels
age.
Assuming delivery of Navios TBN I in June 2009, the vessels in
our fleet will have an average age of approximately
5.5 years in June 2009, and most drybulk vessels have an
expected life of approximately
25-28 years.
We may acquire older vessels in the future. In some instances,
charterers prefer newer vessels that are more fuel efficient
than older vessels. Cargo insurance rates also increase with the
age of a vessel, making older vessels less desirable to
charterers as well. Governmental regulations, safety or other
equipment standards related to the age of the vessels may
require expenditures for alterations or the addition of new
equipment, to our vessels and may restrict the type of
activities in which these vessels may engage. We cannot assure
you that as our vessels age, market conditions will justify
those expenditures or enable us to operate our vessels
profitably during the remainder of their useful lives. If we
sell vessels, we may have to sell them at a loss, and if
charterers no longer charter out vessels due to their age, it
could materially adversely affect our earnings.
Vessels
may suffer damage and we may face unexpected drydocking costs,
which could affect our cash flow and financial
condition.
If our owned vessels suffer damage, they may need to be repaired
at a drydocking facility. The costs of drydock repairs are
unpredictable and can be substantial. We may have to pay
drydocking costs that insurance does not cover. The loss of
earnings while these vessels are being repaired and
repositioned, as well as the actual cost of these repairs, could
decrease our revenues and earnings substantially, particularly
if a number of vessels are damaged or drydocked at the same
time. Under the terms of our management agreement with Navios
ShipManagement, the costs of drydocking repairs are included in
the daily management fee of $4,000 per owned Panamax vessel and
$5,000 per owned Capesize vessel which is fixed until November
2009. From November 2009 to November 2012, we expect that we
will reimburse Navios ShipManagement for all of the actual
operating costs and expenses it incurs in connection with the
management of our fleet.
We are
subject to various laws, regulations and conventions, including
environmental laws, that could require significant expenditures
both to maintain compliance with such laws and to pay for any
uninsured environmental liabilities resulting from a spill or
other environmental disaster.
The shipping business and vessel operation are materially
affected by government regulation in the form of international
conventions, national, state and local laws, and regulations in
force in the jurisdictions in which vessels operate, as well as
in the country or countries of their registration. Because such
conventions, laws and regulations are often revised, we cannot
predict the ultimate cost of complying with such conventions,
laws and regulations, or the impact thereof on the fair market
price or useful life of our vessels. Changes in governmental
regulations, safety or other equipment standards, as well as
compliance with standards imposed by maritime self-regulatory
organizations and customer requirements or competition, may
require us to make capital and other expenditures. In order to
satisfy any such requirements we may be required to take any of
our vessels out of service for extended periods of time, with
corresponding losses of revenues. In the future, market
conditions may not justify these expenditures or enable us to
operate our vessels profitably, particularly older vessels,
during the remainder of their economic lives. This could lead to
significant asset write-downs.
Additional conventions, laws and regulations may be adopted that
could limit our ability to do business, require capital
expenditures or otherwise increase our cost of doing business,
which may materially adversely affect our operations, as well as
the shipping industry generally. For example, in various
jurisdictions legislation has been enacted, or is under
consideration that would impose more stringent requirements on
air pollution and other ship emissions, including emissions of
greenhouse gases and ballast water discharged from vessels. We
are required by various governmental and quasi-governmental
agencies to obtain certain permits, licenses and certificates
with respect to our operations.
The operation of vessels is also affected by the requirements
set forth in the ISM Code. The ISM Code requires shipowners and
bareboat charterers to develop and maintain an extensive safety
management system that includes the adoption of a safety and
environmental protection policy setting forth instructions and
16
procedures for safe vessel operation and describing procedures
for dealing with emergencies. Non compliance with the ISM Code
may subject such party to increased liability, may decrease
available insurance coverage for the affected vessels, and may
result in a denial of access to, or detention in, certain ports.
For example, the United States Coast Guard and European Union
authorities have indicated that vessels not in compliance with
the ISM Code will be prohibited from trading in ports in the
United States and European Union. Currently, each of the vessels
in our owned fleet is ISM Code-certified. However, there can be
no assurance that such certification will be maintained
indefinitely.
For all vessels, including those operated under our fleet, at
present, international liability for oil pollution is governed
by the International Convention on Civil Liability for Bunker
Oil Pollution Damage, or the Bunker Convention. In 2001, the IMO
adopted the International Convention on Civil Liability for
Bunker Oil Pollution Damage, or the Bunkers Convention, which
imposes strict liability on ship owners for pollution damage in
jurisdictional waters of ratifying states caused by discharges
of bunker oil. The Bunkers Convention defines
bunker oil as any hydrocarbon mineral oil,
including lubricating oil, used or intended to be used for the
operation or propulsion of the ship, and any residues of such
oil. The Bunkers Convention also requires registered
owners of ships over a certain size to maintain insurance for
pollution damage in an amount equal to the limits of liability
under the applicable national or international limitation regime
(but not exceeding the amount calculated in accordance with the
Convention on Limitation of Liability for Maritime Claims of
1976, as amended). The Bunkers Convention entered into force on
21 November 2008, and in early 2009 it was in effect in
22 states. In other jurisdictions liability for spills or
releases of oil from ships bunkers continues to be
determined by the national or other domestic laws in the
jurisdiction where the events or damages occur.
Environmental legislation in the United States merits particular
mention as it is in many respects more onerous than
international laws, representing a high-water mark of regulation
with which ship owners and operators must comply, and of
liability likely to be incurred in the event of non-compliance
or an incident causing pollution. US federal legislation,
including notably the Oil Pollution Act of 1990, or the OPA,
establishes an extensive regulatory and liability regime for the
protection and cleanup of the environment from oil spills,
including bunker oil spills from drybulk vessels as well as
cargo or bunker oil spills from tankers. The OPA affects all
owners and operators whose vessels trade in the United States,
its territories and possessions or whose vessels operate in
United States waters, which includes the United States
territorial sea and its 200 nautical mile exclusive economic
zone. Under the OPA, vessel owners, operators and bareboat
charterers are responsible parties and are jointly,
severally and strictly liable (unless the spill results solely
from the act or omission of a third party, an act of God or an
act of war) for all containment and
clean-up
costs and other damages arising from discharges or substantial
threats of discharges, of oil from their vessels. In addition to
potential liability under OPA as the relevant federal
legislation, vessel owners may in some instances incur liability
on an even more stringent basis under state law in the
particular state where the spillage occurred.
Outside of the United States, other national laws generally
provide for the owner to bear strict liability for pollution,
subject to a right to limit liability under applicable national
or international regimes for limitation of liability. The most
widely applicable international regime limiting maritime
pollution liability is the 1976 Convention referred to above.
Rights to limit liability under the 1976 Convention are
forfeited where a spill is caused by a shipowners
intentional or reckless conduct. Certain states have ratified
the IMOs 1996 Protocol to the 1976 Convention. The
Protocol provides for substantially higher the liability limits
to apply in those jurisdictions than the limits set forth in the
1976 Convention. Finally, some jurisdictions are not a party to
either the 1976 Convention or the Protocol of 1996, and,
therefore, a shipowners rights to limit liability for
maritime pollution in such jurisdictions may be uncertain.
In some areas of regulation the EU has introduced new laws
without attempting to procure a corresponding amendment of
international law. Notably it adopted in 2005 a directive on
ship-source pollution, imposing criminal sanctions for pollution
not only where this is caused by intent or recklessness (which
would be an offence under MARPOL), but also where it is caused
by serious negligence. The directive could therefore
result in criminal liability being incurred in circumstances
where it would not be incurred under international law.
Experience has shown that in the emotive atmosphere often
associated with
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pollution incidents, retributive attitudes towards ship
interests have found expression in negligence being alleged by
prosecutors and found by courts on grounds which the
international maritime community has found hard to understand.
Moreover there is skepticism that the notion of serious
negligence is likely to prove any narrower in practice
than ordinary negligence. Criminal liability for a pollution
incident could not only result in us incurring substantial
penalties or fines but may also, in some jurisdictions,
facilitate civil liability claims for greater compensation than
would otherwise have been payable.
We currently maintain, for each of our owned vessels, insurance
coverage against pollution liability risks in the amount of
$1.0 billion per incident. The insured risks include
penalties and fines as well as civil liabilities and expenses
resulting from accidental pollution. However, this insurance
coverage is subject to exclusions, deductibles and other terms
and conditions. If any liabilities or expenses fall within an
exclusion from coverage, or if damages from a catastrophic
incident exceed the $1.0 billion limitation of coverage per
incident, our cash flow, profitability and financial position
could be adversely impacted.
The loss
of key members of our senior management team could disrupt the
management of our business.
We believe that our success depends on the continued
contributions of the members of our senior management team,
including Ms. Angeliki Frangou, our Chairman and Chief
Executive Officer, and the senior management team of Navios
Partners. The loss of the services of Ms. Frangou or one of
our other executive officers or those of Navios Holdings who
provide us with significant managerial services could impair our
ability to identify and secure new charter contracts, to
maintain good customer relations and to otherwise manage our
business, which could have a material adverse effect on our
financial performance and our ability to compete.
We are
subject to vessel security regulations and will incur costs to
comply with recently adopted regulations and may be subject to
costs to comply with similar regulations which may be adopted in
the future in response to terrorism.
Since the terrorist attacks of September 11, 2001, there
have been a variety of initiatives intended to enhance vessel
security. On November 25, 2002, the Maritime Transportation
Security Act of 2002, or MTSA, came into effect. To implement
certain portions of the MTSA, in July 2003, the U.S. Coast
Guard issued regulations requiring the implementation of certain
security requirements aboard vessels operating in waters subject
to the jurisdiction of the United States. Similarly, in December
2002, amendments to the International Convention for the Safety
of Life at Sea, or SOLAS, created a new chapter of the
convention dealing specifically with maritime security. The new
chapter went into effect in July 2004, and imposes various
detailed security obligations on vessels and port authorities,
most of which are contained in the newly created ISPS Code.
Among the various requirements are:
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on-board installation of automatic information systems, or AIS,
to enhance vessel-to-vessel and vessel-to-shore communications;
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on-board installation of ship security alert systems;
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the development of vessel security plans; and
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compliance with flag state security certification requirements.
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Furthermore, additional security measures could be required in
the future which could have a significant financial impact on
us. The U.S. Coast Guard regulations, intended to be
aligned with international maritime security standards, exempt
non-U.S. vessels
from MTSA vessel security measures, provided such vessels have
on board, by July 1, 2004, a valid International Ship
Security Certificate, or ISSC, that attests to the vessels
compliance with SOLAS security requirements and the ISPS Code.
We will implement the various security measures addressed by the
MTSA, SOLAS and the ISPS Code and take measures for the vessels
to attain compliance with all applicable security requirements
within the prescribed time periods. Although management does not
believe these additional requirements will have a material
financial impact on our operations, there can be no assurance
that there will not be an interruption in operations to bring
vessels into compliance with the applicable requirements and any
such interruption could cause a decrease in charter
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revenues. Furthermore, additional security measures could be
required in the future which could have a significant financial
impact on us.
The
operation of ocean-going vessels entails the possibility of
marine disasters including damage or destruction of the vessel
due to accident, the loss of a vessel due to piracy or
terrorism, damage or destruction of cargo and similar events
that may cause a loss of revenue from affected vessels and
damage our business reputation, which may in turn lead to loss
of business.
The operation of ocean-going vessels entails certain inherent
risks that may materially adversely affect our business and
reputation, including:
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damage or destruction of vessel due to marine disaster such as a
collision;
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the loss of a vessel due to piracy and terrorism;
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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;
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environmental accidents as a result of the foregoing; and
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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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Any of these circumstances or events could substantially
increase our costs. For example, the costs of replacing a vessel
or cleaning up a spill could substantially lower its revenues by
taking vessels out of operation permanently or for periods of
time. The involvement of our vessels in a disaster or delays in
delivery or damages or loss of cargo may harm our reputation as
a safe and reliable vessel operator and cause us to lose
business.
A failure
to pass inspection by classification societies could result in
one or more vessels being unemployable unless and until they
pass inspection, resulting in a loss of revenues from such
vessels for that period and a corresponding decrease in
operating cash flows.
The hull and machinery of every commercial vessel must be
classed by a classification society authorized by its country of
registry. The classification society certifies that a vessel is
safe and seaworthy in accordance with the applicable rules and
regulations of the country of registry of the vessel and the
United Nations Safety of Life at Sea Convention. Our owned fleet
is currently enrolled with Nippon Kaiji Kiokai and Bureau
Veritas.
A vessel must undergo an annual survey, an intermediate survey
and a special survey. In lieu of a special survey, a
vessels machinery may be on a continuous survey cycle,
under which the machinery would be surveyed periodically over a
five-year period. Our vessels are on special survey cycles for
hull inspection and continuous survey cycles for machinery
inspection. Every vessel is also required to be drydocked every
two to three years for inspection of the underwater parts of
such vessel.
If any vessel fails any annual survey, intermediate survey or
special survey, the vessel may be unable to trade between ports
and, therefore, would be unemployable, potentially causing a
negative impact on our revenues due to the loss of revenues from
such vessel until it was able to trade again.
We are
subject to inherent operational risks that may not be adequately
covered by our insurance.
The operation of ocean-going vessels in international trade is
inherently risky. Although we carry insurance for our fleet
against risks commonly insured against by vessel owners and
operators, including hull and machinery insurance, war risks
insurance and protection and indemnity insurance (which include
environmental damage and pollution insurance), all risks may not
be adequately insured against, and any particular claim may not
be paid. We do not currently maintain off-hire insurance, which
would cover the loss of revenue during extended vessel off-hire
periods, such as those that occur during an unscheduled
drydocking due to damage to the vessel from accidents.
Accordingly, any extended vessel off-hire, due to an accident or
otherwise, could have a material adverse effect on our business
and our ability to pay distributions to our
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unitholders. Any claims covered by insurance would be subject to
deductibles, and since it is possible that a large number of
claims may be brought, the aggregate amount of these deductibles
could be material.
We may be unable to procure adequate insurance coverage at
commercially reasonable rates in the future. For example, more
stringent environmental regulations have led in the past to
increased costs for, and in the future may result in the lack of
availability of, insurance against risks of environmental damage
or pollution. A catastrophic oil spill or marine disaster could
exceed our insurance coverage, which could harm our business,
financial condition and operating results. Changes in the
insurance markets attributable to terrorist attacks may also
make certain types of insurance more difficult for us to obtain.
In addition, the insurance that may be available to us may be
significantly more expensive than our existing coverage.
Even if our insurance coverage is adequate to cover our losses,
we may not be able to timely obtain a replacement vessel in the
event of a loss. Furthermore, in the future, we may not be able
to obtain adequate insurance coverage at reasonable rates for
our fleet. Our insurance policies also contain deductibles,
limitations and exclusions which can result in significant
increased overall costs to us.
Because
we obtain some of our insurance through protection and indemnity
associations, we may also be subject to calls, or premiums, in
amounts based not only on our own claim records, but also the
claim records of all other members of the protection and
indemnity associations.
We may be subject to calls, or premiums, in amounts based not
only on our claim records but also the claim records of all
other members of the protection and indemnity associations
through which we receive insurance coverage for tort liability,
including pollution-related liability. Our payment of these
calls could result in significant expenses to us, which could
have a material adverse effect on our business, results of
operations and financial condition.
Because
we generate all of our revenues in U.S. dollars but incur a
portion of our expenses in other currencies, exchange rate
fluctuations could cause us to suffer exchange rate losses
thereby increasing expenses and reducing income.
We will engage in worldwide commerce with a variety of entities.
Although our operations may expose us to certain levels of
foreign currency risk, our transactions are at present
predominantly U.S. dollar denominated. Transactions in
currencies other than the functional currency are translated at
the exchange rate in effect at the date of each transaction.
Expenses incurred in foreign currencies against which the
U.S. dollar falls in value can increase thereby decreasing
our income or vice versa if the U.S dollar increases in value.
For example, during the year ended December 31, 2008, the
value of the U.S. dollar increased by approximately 4.4% as
compared to the Euro. A greater percentage of our transactions
and expenses in the future may be denominated in currencies
other than the U.S. dollar.
Our
operations expose us to global political risks, such as wars and
political instability that may interfere with the operation of
our vessels causing a decrease in revenues from such
vessels.
We are an international company and primarily conduct our
operations outside the United States. Changing economic,
political and governmental conditions in the countries where we
are engaged in business or where our vessels are registered will
affect us. In the past, political conflicts, particularly in the
Persian Gulf, resulted in attacks on vessels, mining of
waterways and other efforts to disrupt shipping in the area. For
example, in October 2002, the vessel Limburg, which was not
affiliated with us, was attacked by terrorists in Yemen. Acts of
terrorism and piracy have also affected vessels trading in
regions such as the South China Sea. Following the terrorist
attack in New York City on September 11, 2001, and the
military response of the United States, the likelihood of future
acts of terrorism may increase, and our vessels may face higher
risks of being attacked in the Middle East region and
interruption of operations causing a decrease in revenues. In
addition, future hostilities or other political instability in
regions where our vessels trade could affect our trade patterns
and adversely affect our operations by causing delays in
shipping on certain routes or making shipping impossible on such
routes, thereby causing a decrease in revenues.
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A government could requisition title or seize our vessels during
a war or national emergency. Requisition of title occurs when a
government takes a vessel and becomes the owner. A government
could also requisition our vessels for hire, which would result
in the governments taking control of a vessel and
effectively becoming the charterer at a dictated charter rate.
Requisition of one or more of our vessels would have a
substantial negative effect on us as we would potentially lose
all revenues and earnings from the requisitioned vessels and
permanently lose the vessels. Such losses might be partially
offset if the requisitioning government compensated us for the
requisition.
Disruptions
in world financial markets and the resulting governmental action
in the United States and in other parts of the world could have
a material adverse impact on our ability to obtain financing,
our results of operations, financial condition and cash flows
and could cause the market price of our common units to
decline.
The United States and other parts of the world are exhibiting
deteriorating economic trends are currently in a recession. For
example, the credit markets worldwide and in the United States
have experienced significant contraction, de-leveraging and
reduced liquidity, and the United States federal government,
state governments and foreign governments have implemented and
are considering a broad variety of governmental action
and/or new
regulation of the financial markets. Securities and futures
markets and the credit markets are subject to comprehensive
statutes, regulations and other requirements. The Securities and
Exchange Commission, other regulators, self-regulatory
organizations and exchanges are authorized to take extraordinary
actions in the event of market emergencies, and may effect
changes in law or interpretations of existing laws.
Recently, a number of financial institutions have experienced
serious financial difficulties and, in some cases, have entered
bankruptcy proceedings or are in regulatory enforcement actions.
The uncertainty surrounding the future of the credit markets in
the United States and the rest of the world has resulted in
reduced access to credit worldwide.
We face risks attendant to changes in economic environments,
changes in interest rates, and instability in certain securities
markets, among other factors. Major market disruptions and the
current adverse changes in market conditions and regulatory
climate in the United States and worldwide may adversely affect
our business or impair our ability to borrow amounts under our
existing credit facility or any future financial arrangements.
The current market conditions may last longer than we
anticipate. These recent and developing economic and
governmental factors may have a material adverse effect on our
results of operations, financial condition or cash flows and
could cause the price of our common units to decline
significantly.
Maritime
claimants could arrest our vessels, which could interrupt our
cash flow.
Crew members, suppliers of goods and services to a vessel,
shippers of cargo, and other parties may be entitled to a
maritime lien against a vessel for unsatisfied debts, claims or
damages against such vessel. In many jurisdictions, a maritime
lien holder may enforce its lien by arresting a vessel through
foreclosure proceedings. The arrest or attachment of one or more
of our vessels could interrupt our cash flow and require us to
pay large sums of funds to have the arrest lifted. We are not
currently aware of the existence of any such maritime lien on
our vessels.
In addition, in some jurisdictions, such as South Africa, under
the sister ship theory of liability, a claimant may
arrest both the vessel which is subject to the claimants
maritime lien and any associated vessel, which is
any vessel owned or controlled by the same owner. Claimants
could try to assert sister ship liability against
one vessel in our fleet for claims relating to another ship in
the fleet.
Navios
Holdings and its affiliates may compete with us.
Pursuant to the omnibus agreement that we entered into with
Navios Holdings in connection with the closing of the IPO,
Navios Holdings and its controlled affiliates (other than us,
our general partner and our subsidiaries) generally agreed not
to acquire or own Panamax or Capesize drybulk carriers under
time charters of three or more years without the consent of our
general partner. The omnibus agreement, however, contains
significant exceptions that allows Navios Holdings or any of its
controlled affiliates to compete with us under
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specified circumstances which could harm our business. In
addition, , in connection with the IPO of Navios Martimie
Acquisition Corporation, or Navios Acquisition on
July 1, 2008, because of the overlap between Navios
Acquisition, Navios Holdings and us, with respect to possible
acquisitions under the terms of our omnibus agreement, we have
entered into a business opportunity right of first refusal
agreement commencing on June 25, 2008 and extending until
the earlier of the consummation of an initial business
combination by Navios Acquisition or its liquidation, which
provides the types of business opportunities in the marine
transportation and logistics industries, we, Navios Holdings and
Navios Acquisition must share with the others
Unitholders
have limited voting rights and our partnership agreement
restricts the voting rights of unitholders owning more than 4.9%
of our common units.
Holders of common units have only limited voting rights on
matters affecting our business. We hold a meeting of the limited
partners every year to elect one or more members of our board of
directors and to vote on any other matters that are properly
brought before the meeting. Common unitholders may only elect
four of the seven members of our board of directors. The elected
directors are elected on a staggered basis and serve for three
year terms. Our general partner in its sole discretion has the
right to appoint the remaining three directors and to set the
terms for which those directors will serve. The partnership
agreement also contains provisions limiting the ability of
unitholders to call meetings or to acquire information about our
operations, as well as other provisions limiting the
unitholders ability to influence the manner or direction
of management. Unitholders will have no right to elect our
general partner and our general partner may not be removed
except by a vote of the holders of at least
662/3%
of the outstanding units, including any units owned by our
general partner and its affiliates, voting together as a single
class.
Our partnership agreement further restricts unitholders
voting rights by 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 effectively 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.
Our
general partner and its affiliates, including Navios Holdings,
own a significant interest in us and have conflicts of interest
and limited fiduciary and contractual duties, which may permit
them to favor their own interests to the detriment of
unitholders.
Navios Holdings indirectly owns the 2.0% general partner
interest and a 49.6% limited partner interest in us, and owns
and controls our general partner. All of our officers and three
of our directors are directors
and/or
officers of Navios Holdings and its affiliates, and our Chief
Executive Officer is also the Chief Executive Officer of Navios
Acquisition. As such they have fiduciary duties to Navios
Holdings and Navios Acquisition that may cause them to pursue
business strategies that disproportionately benefit Navios
Holdings or Navios Acquisition or which otherwise are not in the
best interests of us or our unitholders. Conflicts of interest
may arise between Navios Acquisition, Navios Holdings and their
respective affiliates, including our general partner on the one
hand, and us and our unitholders, on the other hand. As a result
of these conflicts, our general partner and its affiliates may
favor their own interests over the interests of our unitholders.
These conflicts include, among others, the following situations:
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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;
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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;
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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;
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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;
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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;
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our general partner is entitled to reimbursement of all
reasonable costs incurred by it and its affiliates for our
benefit;
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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
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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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Although a majority of our directors will be elected by common
unitholders, our general partner will likely have substantial
influence on decisions made by our board of directors.
Our
officers face conflicts in the allocation of their time to our
business.
Navios Holdings and Navios Acquisition conduct businesses and
activities of their own in which we have no economic interest.
If these separate activities are significantly greater than our
activities, there will be material competition for the time and
effort of our officers, who also provide services to Navios
Acquisition, Navios Holdings and its affiliates. Our officers
are not required to work full-time on our affairs and are
required to devote time to the affairs of Navios Acquisition,
Navios Holdings and their respective affiliates. Each of our
Chief Executive Officer and our Chief Financial Officer is also
an executive officer of Navios Holdings, and our Chief Executive
Officer is the Chief Executive Officer of Navios Acquisition.
Our
partnership agreement limits our general partners and our
directors fiduciary duties to our unitholders and
restricts the remedies available to unitholders for actions
taken by our general partner or our directors.
Our partnership agreement contains provisions that reduce the
standards to which our general partner and directors would
otherwise be held by Marshall Islands law. For example, our
partnership agreement:
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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,
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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;
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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;
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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
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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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In order to become a limited partner of our partnership, a
common unitholder is required to agree to be bound by the
provisions in the partnership agreement, including the
provisions discussed above.
Fees and
cost reimbursements, which Navios ShipManagement determines for
services provided to us, are significant, are be payable
regardless of profitability and reduce our cash available for
distribution.
Under the terms of our management agreement with Navios
ShipManagement, we pay a daily fee of $4,000 per owned Panamax
vessel and $5,000 per owned Capesize vessel for technical and
commercial management services provided to us by Navios
ShipManagement. The initial term of the management agreement is
until November 2012 and this fee is fixed until November 2009.
The daily fee paid to Navios ShipManagement includes all costs
incurred in providing certain commercial and technical
management services to us. While this fee is fixed until
November 2009, we expect that we will reimburse Navios
ShipManagement for all of the actual operating costs and
expenses it incurs in connection with the management of our
fleet until November 2012, which may result in significantly
higher fees that period. All of the fees we are required to pay
to Navios ShipManagement under the management agreement are
payable without regard to our financial condition or results of
operations. In addition, Navios ShipManagement provides us with
administrative services, including the services of our officers
and directors, pursuant to an administrative services agreement
which has an initial term until November 2012, and we reimburse
Navios ShipManagement for all costs and expenses reasonably
incurred by it in connection with the provision of those
services. The fees and reimbursement of expenses to Navios
ShipManagement are payable regardless of our profitability and
could materially adversely affect our ability to pay cash
distributions to unitholders.
Our
partnership agreement contains provisions that may have the
effect of discouraging a person or group from attempting to
remove our current management or our general partner, and even
if public unitholders are dissatisfied, they will be unable to
remove our general partner without Navios Holdings
consent, unless Navios Holdings ownership share in us is
decreased.
Our partnership agreement contains provisions that may have the
effect of discouraging a person or group from attempting to
remove our current management or our general partner.
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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 upon completion of the IPO to be
able to prevent its removal. The vote of the holders of at least
662/3%
of all outstanding common and subordinated
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units voting together as a single class is required to remove
the general partner. Navios Holdings currently owns 49.6% of the
total number of outstanding common and subordinated units based
on all outstanding limited, subordinated and general partner
units.
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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 partners decisions in
this regard would most likely result in the termination of the
subordination period.
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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.
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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.
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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.
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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.
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We have substantial latitude in issuing equity securities
without unitholder approval.
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The
control of our general partner may be transferred to a third
party without unitholder consent.
Our general partner may transfer its general partner interest to
a third party in a merger or in a sale of all or substantially
all of its assets without the consent of the unitholders. In
addition, our partnership agreement does not restrict the
ability of the members of our general partner from transferring
their respective membership interests in our general partner to
a third party.
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In
establishing cash reserves, our board of directors may reduce
the amount of cash available for distribution to
unitholders.
Our partnership agreement requires our general partner to deduct
from operating surplus cash reserves that it determines are
necessary to fund our future operating expenditures. These
reserves also will affect the amount of cash available for
distribution to our unitholders. Our board of directors may
establish reserves for distributions on the subordinated units,
but only if those reserves will not prevent us from distributing
the full minimum quarterly distribution, plus any arrearages, on
the common units for the following four quarters. Our
partnership agreement requires our board of directors each
quarter to deduct from operating surplus estimated maintenance
and replacement capital expenditures, as opposed to actual
expenditures, which could reduce the amount of available cash
for distribution. The amount of estimated maintenance and
replacement capital expenditures deducted from operating surplus
is subject to review and change by our board of directors at
least once a year, provided that any change must be approved by
the conflicts committee of our board of directors.
Our
general partner has a limited call right that may require
unitholders to sell their common units at an undesirable time or
price.
If at any time our general partner and its affiliates, including
Navios Holdings, own more than 80% of the common units, our
general partner will have the right, which it may assign to any
of its affiliates or to us, but not the obligation, to acquire
all, but not less than all, of the common units held by
unaffiliated persons at a price not less than their then-current
market price. As a result, unitholders may be required to sell
their common units at an undesirable time or price and may not
receive any return on their investment. Unitholders may also
incur a tax liability upon a sale of their units.
At the end of the subordination period, assuming no additional
issuances of common units and conversion of our subordinated
units into common units, Navios Holdings will own 10,753,258
common units, representing a 49.6% limited partner interest in
us based on all limited and general partner units.
Unitholders
may not have limited liability if a court finds that unitholder
action constitutes control of our business.
As a limited partner in a partnership organized under the laws
of the Marshall Islands, unitholders could be held liable for
our obligations to the same extent as a general partner if they
participate in the control of our business. Our
general partner generally has unlimited liability for the
obligations of the partnership, such as its debts and
environmental liabilities, except for those contractual
obligations of the partnership that are expressly made without
recourse to our general partner.
We can
borrow money to pay distributions, which would reduce the amount
of credit available to operate our business.
Our partnership agreement will allow us to make working capital
borrowings to pay distributions. Accordingly, we can make
distributions on all our units even though cash generated by our
operations may not be sufficient to pay such distributions. Any
working capital borrowings by us to make distributions will
reduce the amount of working capital borrowings we can make for
operating our business.
Increases
in interest rates may cause the market price of our common units
to decline.
An increase in interest rates may cause a corresponding decline
in demand for equity investments in general, and in particular
for yield-based equity investments such as our common units. Any
such increase in interest rates or reduction in demand for our
common units resulting from other relatively more attractive
investment opportunities may cause the trading price of our
common units to decline. In addition, our interest expense will
increase, since initially our debt will bear interest at a
floating rate, subject to any interest rate swaps we may enter
into the future.
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Unitholders
may have liability to repay distributions.
Under some circumstances, unitholders may have to repay amounts
wrongfully returned or distributed to them. Under the Marshall
Islands Act, we may not make a distribution to unitholders if
the distribution would cause our liabilities to exceed the fair
value of our assets. Marshall Islands law provides that for a
period of three years from the date of the impermissible
distribution, limited partners who received the distribution and
who knew at the time of the distribution that it violated
Marshall Islands law will be liable to the limited partnership
for the distribution amount. Assignees who become substituted
limited partners are liable for the obligations of the assignor
to make contributions to the partnership that are known to the
assignee at the time it became a limited partner and for unknown
obligations if the liabilities could be determined from the
partnership agreement. Liabilities to partners on account of
their partnership interest and liabilities that are non-recourse
to the partnership are not counted for purposes of determining
whether a distribution is permitted.
Tax
Risks
In addition to the following risk factors, you should read
Item 4. Information on the Partnership and
Item 10. Additional Information for a more
complete discussion of the expected material U.S. federal
and
non-U.S. income
tax considerations relating to us and the ownership and
disposition of common units.
U.S. tax
authorities could treat us as a passive foreign investment
company, which could have adverse U.S. federal income
tax consequences to U.S. unitholders.
A
non-U.S. entity
treated as a corporation for U.S. federal income tax
purposes will be treated as a passive foreign investment
company, or a PFIC, for U.S. federal income tax
purposes if at least 75.0% of its gross income for any taxable
year consists of certain types of passive income, or
at least 50.0% of the average value of the entitys assets
produce or are held for the production of those types of
passive income. For purposes of these tests,
passive income generally includes dividends,
interest, gains from the sale or exchange of investment
property, and rents and royalties other than rents and royalties
that are received from unrelated parties in connection with the
active conduct of a trade or business. For purposes of these
tests, income derived from the performance of services does not
constitute passive income. U.S. unitholders of
a PFIC are subject to a disadvantageous U.S. federal income
tax regime with respect to the income derived by the PFIC, the
distributions they receive from the PFIC, and the gain, if any,
they derive from the sale or other disposition of their shares
in the PFIC.
Based on our current and projected method of operation, and on
opinion of counsel, we believe that we will not be a PFIC for
our 2008 taxable year, and we expect that we will not become a
PFIC with respect to any other taxable year. Our
U.S. counsel, Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C., is of the opinion that (1) the income we
receive from time chartering activities and the assets we own
that are engaged in generating such income should not be treated
as passive income or assets, respectively, and (2) so long
as our income from time charters exceeds 25.0% of our gross
income from all sources for each taxable year after our initial
taxable year and the fair market value of our vessels contracted
under time charters exceeds 50.0% of the average fair market
value of all of our assets for each taxable year after our
initial taxable year, we should not be a PFIC for any taxable
year. This opinion is based on representations and projections
provided by us to our counsel regarding our assets, income and
charters, and its validity is conditioned on the accuracy of
such representations and projections. We expect that all of the
vessels in our fleet will be engaged in time chartering
activities and intend to treat our income from those activities
as non-passive income, and the vessels engaged in those
activities as non-passive assets, for PFIC purposes. However, no
assurance can be given that the Internal Revenue Service, or the
IRS, will accept this position.
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The
preferential tax rates applicable to qualified dividend income
are temporary, and the enactment of previously proposed
legislation could affect whether dividends paid by us constitute
qualified dividend income eligible for the preferential
rate.
Certain of our distributions may be treated as qualified
dividend income eligible for preferential rates of
U.S. federal income tax to U.S. individual unitholders
(and certain other U.S. unitholders). In the absence of
legislation extending the term for these preferential tax rates,
all dividends received by such U.S. taxpayers in tax years
beginning on January 1, 2011, or later, will be taxed at
graduated tax rates applicable to ordinary income.
In addition, legislation proposed in the U.S. Congress
would, if enacted, deny the preferential rate of
U.S. federal income tax currently imposed on qualified
dividend income with respect to dividends received from a
non-U.S. corporation,
if the
non-U.S. corporation
is created or organized under the laws of a jurisdiction that
does not have a comprehensive income tax system. Because the
Marshall Islands imposes only limited taxes on entities
organized under its laws, it is likely that, if this legislation
were enacted, the preferential tax rates would no longer be
applicable to distributions received from us. In addition,
legislation has been proposed that, if enacted, would eliminate
the preferential tax rate with respect to dividends paid after
December 31, 2008, thereby causing such dividends to be
taxed at ordinary income rates. As of the date hereof, it is not
possible to predict with any certainty whether any of this
proposed legislation will be enacted.
We may
have to pay tax on U.S. source income, which would reduce
our earnings.
Under the Code, 50.0% of the gross shipping income of a vessel
owning or chartering corporation that is attributable to
transportation that either begins or ends, but that does not
both begin and end, in the United States is characterized as
U.S. source shipping income. U.S. source shipping
income generally is subject to a 4.0% U.S. federal income
tax without allowance for deduction or, if such U.S. source
shipping income is effectively connected with the conduct of a
trade or business in the United States, U.S. federal
corporate income tax (the highest statutory rate presently is
35.0%) as well as a branch profits tax (presently imposed at a
30.0% rate on effectively connected earnings), unless that
corporation qualifies for exemption from tax under
Section 883 of the Code.
Based on an opinion of counsel, and certain assumptions and
representations, we believe that we will qualify for this
statutory tax exemption, and we will take this position for
U.S. federal income tax return reporting purposes. However,
there are factual circumstances, including some that may be
beyond our control, that could cause us to lose the benefit of
this tax exemption after this offering. Furthermore, our board
of directors could determine that it is in our best interests to
take an action that would result in this tax exemption not
applying to us in the future. In addition, our conclusion that
we qualify for this exemption, as well as the conclusions in
this regard of our counsel, Mintz, Levin, Cohn, Ferris, Glovsky
and Popeo, P.C., is based upon legal authorities that do
not expressly contemplate an organizational structure such as
ours; specifically, although we have elected to be treated as a
corporation for U.S. federal income tax purposes, we are
organized as a limited partnership under Marshall Islands law.
Therefore, we can give no assurances that the IRS will not take
a different position regarding our qualification for this tax
exemption.
If we were not entitled to the Section 883 exemption for
any taxable year, we generally would be subject to a 4%
U.S. federal gross income tax with respect to our
U.S. source shipping income or, if such U.S. source
shipping income were effectively connected with the conduct of a
trade or business in the United States, U.S. federal
corporate income tax (the highest statutory rate presently is
35.0%) as well as a branch profits tax (presently imposed at a
30.0% rate on effectively connected earnings) for those years.
Our failure to qualify for the Section 883 exemption could
have a negative effect on our business and would result in
decreased earnings available for distribution to our unitholders.
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You may
be subject to income tax in one or more
non-U.S. countries,
including Greece, as a result of owning our common units if,
under the laws of any such country, we are considered to be
carrying on business there. Such laws may require you to file a
tax return with and pay taxes to those countries.
We intend that our affairs and the business of each of our
controlled affiliates will be conducted and operated in a manner
that minimizes income taxes imposed upon us and these controlled
affiliates or which may be imposed upon you as a result of
owning our common units. However, because we are organized as a
partnership, there is a risk in some jurisdictions that our
activities and the activities of our subsidiaries may be
attributed to our unitholders for tax purposes and, thus, that
you will be subject to tax in one or more
non-U.S. countries,
including Greece, as a result of owning our common units if,
under the laws of any such country, we are considered to be
carrying on business there. If you are subject to tax in any
such country, you may be required to file a tax return with and
to pay tax in that country based on your allocable share of our
income. We may be required to reduce distributions to you on
account of any withholding obligations imposed upon us by that
country in respect of such allocation to you. The United States
may not allow a tax credit for any foreign income taxes that you
directly or indirectly incur.
We believe we can conduct our activities in such a manner that
our unitholders should not be considered to be carrying on
business in Greece solely as a consequence of the acquisition,
holding, disposition or redemption of our common units. However,
the question of whether either we or any of our controlled
affiliates will be treated as carrying on business in any
particular country, including Greece, will be largely a question
of fact to be determined based upon an analysis of contractual
arrangements, including the management agreement and the
administrative services agreement we will enter into with Navios
ShipManagement, and the way we conduct business or operations,
all of which may change over time. Furthermore, the laws of
Greece or any other country may change in a manner that causes
that countrys taxing authorities to determine that we are
carrying on business in such country and are subject to its
taxation laws. Any foreign taxes imposed on us or any
subsidiaries will reduce our cash available for distribution.
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Item 4.
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Information
on the Partnership
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A.
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History
and Development of the Partnership
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Navios Maritime Partners L.P. was formed on August 7, 2007
under the laws of Marshall Islands by Navios Holdings. Navios GP
L.L.C. (the General Partner), a wholly owned
subsidiary of Navios Holdings, was also formed on that date to
act as the general partner of Navios Partners and received a 2%
general partner interest.
In connection with our IPO, on November 16, 2007 we
acquired interests in five wholly-owned subsidiaries of Navios
Holdings, each of which owned a Panamax drybulk carrier, as well
as interests in three wholly-owned subsidiaries of Navios
Holdings that operated and had options to purchase three
additional vessels in exchange for (a) all of the net
estimated proceeds of $193.3 million from the sale of an
aggregate of 10,500,000 common units in the IPO and the
concurrent offering to a corporation owned by Navios
Partners Chairman and CEO, plus
(b) $160.0 million, (c) 7,621,843 subordinated
units issued to Navios Holdings and (d) the issuance to the
General Partner of the 2% general partner interest and all
incentive distribution rights in Navios Partners. Upon the
closing of the IPO, Navios Holdings owned a 43.2% interest in
Navios Partners, including the 2% general partner interest.
On July 1, 2008 Navios Partners issued 3,131,415 common
units to Navios Holdings for the acquisition of Navios
Aurora I, and 63,906 general partnership units to the
General Partner in exchange for the contribution received from
the General Partner to maintain its 2% general partner interest
in Navios Partners. As a result, Navios Holdings currently owns
a 51.6% interest in Navios Partners, including the 2% general
partner interest.
In connection with the IPO, we entered into the following
agreements: (a) a share purchase agreement pursuant to
which Navios Partners acquired the capital stock of a subsidiary
that will own the Capesize vessel Navios TBN I and related time
charter, upon delivery of the vessel which is expected to occur
in June 2009 for $130.0 million; (b) a share purchase
agreement pursuant to which Navios Partners has the option,
29
exercisable at any time between January 1, 2009 and
April 1, 2009, to acquire the capital stock of the
subsidiary that will own the Capesize vessel Navios TBN II and
related time charter scheduled for delivery in October 2009 for
$135.0 million; (c) a management agreement with Navios
ShipManagement Inc.(the Manager) pursuant to which
the Manager provides Navios Partners commercial and technical
management services; (d) an administrative services
agreement with the Manager pursuant to which the Manager
provides Navios Partners administrative services; and
(e) an omnibus agreement with Navios Holdings, governing,
among other things, when Navios Partners and Navios Holdings may
compete against each other as well as rights of first offer on
certain drybulk carriers.
Navios Partners is engaged in the seaborne transportation
services of a wide range of drybulk commodities including iron
ore, coal, grain and fertilizer, chartering its vessels under
medium to long term charters. The operations of Navios Partners
are managed by the Manager from its executive offices at 85 Akti
Miaouli Street, Piraeus 185 38, Greece. Our telephone number at
such address is (+30) 210 4595000. Our agent for service is
Trust Company of the Marshall Islands, Inc., located at
Trust Company Complex, Ajeltake Island,
P.O. Box 1405, Majuro, Marshall Islands MH96960.
Introduction
We are an international owner and operator of drybulk carriers
newly formed by Navios Maritime Holdings Inc. (NYSE: NM), a
vertically integrated seaborne shipping company with over
50 years of operating history in the drybulk shipping
industry. Our vessels are chartered out under long-term time
charters with an average remaining term of approximately
4.4 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. and Daiichi Chuo
Kisen Kaisha.
Our
Fleet
Our fleet consists of eight modern, active Panamax vessels one
modern Capesize vessel and one newbuild Capesize vessel, Navios
TBN I that we have agreed to purchase from Navios Holdings when
it is delivered, which is expected to occur in June 2009.
Assuming delivery of Navios TBN I in June 2009, our fleet of
high quality Panamax and Capesize vessels will have an average
age of approximately 5.5 years in June 2009, which is
significantly younger than the current industry average of about
16 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. We may from time to time purchase additional vessels,
including vessels from Navios Holdings.
All of our current vessels operate under long-term time charters
of three or more years at inception with counterparties that we
believe are creditworthy. Under certain circumstances we may
operate vessels in the spot market until the vessels have been
fixed under appropriate long-term charters.
30
The following table provides summary information about our fleet:
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Original Charter
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Expiration Date/New
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Original Charter Out
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Capacity
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Charter Expiration
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Rate/ New Charter Out
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Owned Vessels
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Type
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Built
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(DWT)
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Date(1)
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Rate per
day(2)
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Navios Gemini S
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Panamax
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1994
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68,636
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February 2009
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$
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19,523
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February 2014
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$
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24,225
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Navios Libra II
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Panamax
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1995
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70,136
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December 2010
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$
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23,513
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Navios Felicity
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Panamax
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1997
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73,867
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April 2013
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$
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26,169
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Navios Galaxy I
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Panamax
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2001
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74,195
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February 2018
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$
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21,937
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Navios Alegria
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Panamax
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2004
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76,466
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December 2010
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$
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23,750
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Navios Fantastiks
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Capesize
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2005
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180,265
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March 2011
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$
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32,279
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March 2014
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$
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36,290
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Navios Aurora
I(3)
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Panamax
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2005
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75,397
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February 2009
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$
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33,863
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(3)
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April 2009
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$
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3,000
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(3)
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April 2010
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$
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11,000
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(3)
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September 2013
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$
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17,000
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(3)
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Owned
Vessels to be delivered
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Expected
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Vessels
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Type
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delivery
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Capacity (DWT)
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Delivery date
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Charter rate
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Navios TBN
I(4)
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Capesize
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June 2009
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180,000
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June 2014
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$
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47,400
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Long
term Chartered-in Vessels
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Capacity
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Vessels
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Type
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Built
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(DWT)
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Expiration date
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Charter rate
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Navios
Prosperity(5)
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Panamax
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2007
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82,535
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July 2012
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$
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24,000
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Navios
Aldebaran(6)
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Panamax
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2008
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76,500
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March 2013
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$
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28,391
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(1)
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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.
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(2)
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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.
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(3)
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In January 2009, Navios Partners
and its counterparty to the Navios Aurora I charter party
mutually agreed for a lump sum amount of approximately
$29.5 million paid to Navios in February 2009. Under a new
charter agreement, the remaining $26 million balance which
would have been received under the original charter contract
(adjusted for the $29.5 million lump sum payment received)
have been allocated to the period until its original expiration
in 2013 by way of reduced daily charter rate as indicated above.
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(4)
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We have agreed to purchase Navios
TBN I, upon its expected delivery in June 2009, from Navios
Holdings for $130.0 million, which we expect to fund
primarily through borrowings under our existing credit facility
and the issuance of additional common units.
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(5)
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Navios Prosperity is chartered-in
for seven years and we will 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 Japanese Yen ($42.1 million based upon the
exchange rate at December 31, 2008), declining pro rata by
145 million Japanese Yen ($1.60 million based upon the
exchange rate at December 31, 2008) per calendar year.
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(6)
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Navios Aldebaran was delivered on
March 17, 2008. 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 Japanese Yen
($40.0 million based upon the exchange rate at
December 31, 2008) declining pro rata by
150 million Japanese Yen ($1.65 million based upon the
exchange rate at December 31, 2008) per calendar year.
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31
Acquisition
of Navios TBN I and Navios TBN II
General
In connection with the IPO, we entered into a share purchase
agreement to purchase the interests in Navios Holdings
vessel-owning subsidiary that owns Navios TBN I, a Capesize
vessel that is being constructed by Daewoo
Shipbuilding & Marine Engineering Co. Ltd. and that is
scheduled for delivery in June 2009. In addition, we entered
into a share purchase agreement that provides us with the
option, exercisable in our sole discretion at any time between
January 1, 2009 and April 1, 2009, to purchase the
interests in the vessel-owning subsidiary that owns Navios TBN
II, a Capesize vessel that is being constructed by Daewoo
Shipbuilding & Marine Engineering Co., Ltd. and that
is scheduled for delivery in October 2009.
Each of the additional vessels is being acquired pursuant to a
resale contract. These resale contracts will not be assigned to
us prior to delivery, and Navios Holdings will be responsible
for payments, if any, due under the resale contracts.
Vessel
Specifications and Classification
Navios TBN I is scheduled to be delivered by June 2009 and will
be a Capesize vessel with 180,000 dwt capacity. Navios TBN I is
being designed, constructed, inspected and tested in accordance
with the rules and regulations of Lloyds Register.
Navios TBN II, if we exercise our option to purchase, is
scheduled to be delivered by October 2009 and will be a Capesize
vessel with 180,000 dwt capacity. Navios TBN II is being
designed, constructed, inspected and tested in accordance with
the rules and regulations of Lloyds Register.
Deliveries
We will take delivery of Navios TBN I upon its purchase by
Nostos ShipManagement Corp. Navios TBN I is scheduled for
delivery in June 2009.
If we exercise our option to purchase, we will take delivery of
Navios TBN II upon its purchase by Navios Holdings from an
unaffiliated third party. Navios TBN II is scheduled for
delivery in October 2009.
Purchase
Price
We will pay Navios Holdings a fixed purchase price of
$130.0 million for Navios TBN I. If we exercise our option
to purchase Navios TBN II, we will pay Navios Holdings a fixed
purchase price of $135.0 million for Navios TBN II.
Business
Opportunities
We believe that the following factors create opportunities for
us to successfully execute our business plan and grow our
business:
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Additional demand for seaborne transportation of drybulk
commodities. The marine industry is fundamental
to international trade, as it is the only practical and cost
effective means of transporting large volumes of basic
commodities and finished products over long distances. In 2008,
approximately 3.2 billion tons of drybulk cargo was
transported by sea, comprising more than one-third of all
international seaborne trade. From 2002 to 2008, trade in all
drybulk commodities experienced an aggregate increase of 45%.
The increase in demand and
ton-mile
demand for drybulk carriers has been driven by increasing global
industrial production and consumption and international trade,
economic growth and urbanization in China, Russia, Brazil, India
and the Far East, with attendant increases in steel production,
power generation and grain consumption. Although world growth is
estimated to slow during 2009 we believe that these global
market dynamics will be the major growth factors for the
foreseeable future.
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Demand for long-term time charter contracts with modern
drybulk vessels. There are several factors
impacting the current and future supply of drybulk vessels
available for cargos. We expect to benefit from these trends as
many customers are seeking longer-term time charter contracts in
order to secure tonnage for the carriage of their drybulk
shipments. These trends are being driven by the following
factors. First, there are currently several inefficient
infrastructure bottlenecks due to long-term under-investment in
global transportation infrastructure that are causing delays in
cargo discharging and loading at main exporting terminals
worldwide. These delays, coupled with increasing voyage lengths
from producers to consumers requiring additional
ton-miles to
service the demands of the global drybulk trade, are reducing
the supply of vessels available for hire at any particular time.
Second, the age of the world drybulk fleet is increasing.
Approximately 28% of drybulk vessels are more than 20 years
old and, with an economic and commercial life of approximately
25 years, many of these vessels will need to be disposed of
in the coming years.
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Our
Competitive Strengths
We believe that our future prospects for success are enhanced by
the following aspects of our business:
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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 the purchase of
the Navios TBN I upon its anticipated delivery in June 2009, the
potential exercise of our option to purchase Navios TBN II, as
well as the potential opportunity to purchase additional vessels
from Navios Holdings 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, 2009, will initially provide us with
predictable expenses. During the remaining three-year term of
the management agreement, from November 16, 2009 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.
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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 network of strong relationships
with many of the worlds 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.
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High-quality, flexible fleet. Our fleet
consists of eight modern, active Panamax vessels, one modern
Capesize vessel and one newbuilding Capesize, Navios TBN I,
that we intend to acquire in June 2009. We will also have an
option to acquire one new Capesize vessel, Navios TBN II, from
Navios Holdings that Navios Holdings is scheduled to acquire in
October 2009. The average age of the vessels in our fleet is
significantly lower than the average age of the world drybulk
fleet. Assuming delivery of Navios TBN I in June 2009, our fleet
of high-quality vessels will have an average age of
approximately 5.5 years in June 2009, compared to a current
industry average age of about 16 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. Capesize vessels are primarily dedicated to the carriage
of iron ore and coal. 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.
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Operating visibility through long-term charters with strong
counterparties. All of our vessels are chartered
out under long-term time charters with an average remaining
charter duration of 4.4 years to a strong group of
counterparties consisting of Cargill International SA, COSCO
Bulk Carrier Co.,
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Ltd., Mitsui O.S.K. Lines, Ltd., Rio Tinto Shipping Pty Ltd.,
Augustea Imprese Maritime, The Sanko Steamship Co., Ltd. and
Daiichi Chuo Kisen Kaisha. In addition, Navios TBN I, which
we are scheduled to acquire from Navios Holdings in June 2009,
will be chartered for five years to Mitsui O.S.K. Lines, Ltd. We
believe our existing charter coverage with strong counterparties
provides us with predictable contracted revenues and operating
visibility.
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Business
Strategies
Our primary business objective is to increase quarterly
distributions per unit over time by executing the following
strategies:
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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 4.4 years and have staggered charter
expirations with no more than two 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.
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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.
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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.
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Provide superior customer service by maintaining high
standards of performance, reliability and
safety. Our customers seek 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.
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Our
Customers
We provide or will provide seaborne shipping services under
long-term time charters with customers that we believe are
creditworthy. Currently, our customers are:
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Cargill International S.A, a subsidiary of
Cargill, Inc. and one of the worlds largest
privately-owned businesses providing food, agricultural and risk
management products and services.
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COSCO Bulk Carrier Co., Ltd., a wholly-owned
subsidiary of COSCO Group and one of the leading drybulk
shipping companies in the world.
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Mitsui O.S.K. Lines, Ltd., a Japanese multi-modal
transportation company operates tankers, LNG carriers, car
carriers and has a significant fleet of dry bulk carriers.
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Rio Tinto Shipping Pty Ltd., an affiliate of Rio
Tinto Group, a leading international mining company that owns
and operates some of the worlds largest mineral resources,
and whose major products include aluminum, copper, diamonds,
energy products, gold, industrial minerals and iron ore.
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34
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Augustea Imprese Maritime, a transportation
company controlled by the Cafieros family that is based in Italy
and is a well known operator of tugs in Italian ports.
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The Sanko Steamship Co., Ltd., a Japanese
transportation company with a fleet of 163 vessels totaling
over 12 million dwt as of October 2008. Its fleet
transports oil, raw materials, grain and other bulk cargoes,
break bulk cargoes, forest products and liquefied gases.
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Daiichi Chuo Kisen Kaisha, a transportation
company based in Japan that offers Capesize, coal carrier and
tanker services. Its fleet consists of around 150 vessels
and is one of the worlds leading vessel operators and
charterers of Panamax bulk carriers.
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Although we believe that if any one of our charters were
terminated, we could recharter the related vessel at the
prevailing market rate relatively quickly, the permanent loss of
a significant customer or a substantial decline in the amount of
services requested by a significant customer could harm our
business, financial condition and results of operations if we
were unable to recharter our vessel on a favorable basis due to
then-current market conditions, or otherwise.
Competition
The drybulk shipping industry is extensive, diversified,
competitive and highly fragmented, divided among approximately
1,400 independent drybulk carrier owners. The worlds
active drybulk fleet consists of about 7,000 vessels,
aggregating over 415 million dwt. As a general principle,
the smaller the cargo carrying capacity of a drybulk carrier,
the more fragmented is its market, both with regard to
charterers and vessel owner/operators. Even among the larger
drybulk owners and operators, whose vessels are mainly in the
larger sizes, only five companies are known to have fleets of
100 vessels or more: the two largest Chinese shipping
companies, China Ocean (Cosco) and China Shipping Group, and the
three largest Japanese shipping companies, Nippon Yusen Kaisha,
Mitsui O.S.K. Lines, Ltd. and Kawasaki Kisen. There are about 40
owners known to have fleets of between 20 and 100 vessels.
However, vessel ownership is not the only determinant of fleet
control. Many owners of bulk carriers charter their vessels out
for extended periods, not just to end users (owners of cargo),
but also to other owner/operators and to tonnage pools. Such
operators may, at any given time, control a fleet many times the
size of their owned tonnage. Navios Holdings is one such
operator; others include CCM (Ceres Hellenic/Coeclerici),
Bocimar, Zodiac Maritime, Louis Dreyfus/Cetragpa, Cobelfret and
Torvald Klaveness.
It is likely that we will face substantial competition for
long-term charter business from a number of experienced
companies. Many of these competitors will have significantly
greater financial resources than we do. It is also likely that
we will face increased numbers of competitors entering into our
transportation sectors, including in the drybulk sector. Many of
these competitors have strong reputations and extensive
resources and experience. Increased competition may cause
greater price competition, especially for long-term charters.
The process for obtaining longer term time charters generally
involves a lengthy and intensive screening and vetting process
and the submission of competitive bids. In addition to the
quality and suitability of the vessel, longer term shipping
contracts tend to be awarded based upon a variety of other
factors relating to the vessel operator, including:
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environmental, health and safety record;
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compliance with regulatory industry standards;
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reputation for customer service, technical and operating
expertise;
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shipping experience and quality of ship operations, including
cost-effectiveness;
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quality, experience and technical capability of crews;
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the ability to finance vessels at competitive rates and overall
financial stability;
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relationships with shipyards and the ability to obtain suitable
berths;
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35
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construction management experience, including the ability to
procure on-time delivery of new vessels according to customer
specifications;
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willingness to accept operational risks pursuant to the charter,
such as allowing termination of the charter for force majeure
events; and
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competitiveness of the bid in terms of overall price.
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As a result of these factors, we may be unable to expand our
relationships with existing customers or obtain new customers
for long-term time charters on a profitable basis, if at all.
However, even if we are successful in employing our vessels
under longer term time charters, our vessels will not be
available for trading in the spot market during an upturn in the
market cycle, when spot trading may be more profitable. If we
cannot successfully employ our vessels in profitable time
charters our results of operations and operating cash flow could
be materially adversely affected.
Time
Charters
A time charter is a contract for the use of a vessel for a fixed
period of time at a specified daily rate. Under a time charter,
the vessel owner provides crewing and other services related to
the vessels operation, the cost of which is included in
the daily rate and the customer is responsible for substantially
all of the vessel voyage costs. All of the vessels in our fleet
are hired out under time charters, and we intend to continue to
hire out our vessels under time charters. The following
discussion describes the material terms common to all of our
time charters.
Basic
Hire Rate
Basic hire rate refers to the basic payment from the
customer for the use of the vessel. The hire rate is generally
payable monthly, in advance on the first day of each month, in
U.S. Dollars as specified in the charter.
Expenses
Under the terms of our management agreement with Navios
ShipManagement, we pay a daily fee of $4,000 per owned Panamax
vessel and $5,000 per owned Capesize vessel for commercial and
technical management services. This fixed fee covers vessel
operating expenses, which include crewing, repairs and
maintenance, insurance and the cost of the special survey and
related scheduled drydocking. Navios ShipManagement is directly
responsible for providing all of these items and services. The
charterer generally pays the voyage expenses, which include all
expenses relating to particular voyages, including any bunker
fuel expenses, port fees, cargo loading and unloading expenses,
canal tolls, agency fees and commissions. The initial term of
the management agreement is until November 16, 2012 and
this fee is fixed until November 16, 2009. During the
period from November 16, 2009 to November 16, 2012, we
expect that we will reimburse Navios ShipManagement for all of
the actual operating costs and expenses it incurs in connection
with the management of our fleet.
Off-hire
When the vessel is off-hire, the charterer generally
is not required to pay the basic hire rate, and we are
responsible for all costs. Prolonged off-hire may lead to vessel
substitution or termination of the time charter. A vessel
generally will be deemed off-hire if there is a loss of time due
to, among other things:
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operational deficiencies; drydocking for repairs, maintenance or
inspection; equipment breakdowns; or delays due to accidents,
crewing strikes, certain vessel detentions or similar problems;
or
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the shipowners failure to maintain the vessel in
compliance with its specifications and contractual standards or
to provide the required crew.
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Under some of our charters, the charterer is permitted to
terminate the time charter if the vessel is off-hire for an
extended period, which is generally defined as a period of 90 or
more consecutive off-hire days.
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Ship
Management and Maintenance
We are responsible for the technical management of the vessels
we own and for maintaining the vessels we own, periodic
drydocking, cleaning and painting and performing work required
by regulations. Navios ShipManagement will provide all services
related to the vessels we own pursuant to a management agreement.
Termination
We are generally entitled to suspend performance under the time
charters covering our vessels if the customer defaults in its
payment obligations. Under some of our time charters, either
party may terminate the charter in the event of war in specified
countries or in locations that would significantly disrupt the
free trade of the vessel. Under some of our time charters
covering our vessels require us to return to the charterer, upon
the loss of the vessel, all advances paid by the charterer but
not earned by us.
Classification,
Inspection and Maintenance
Every sea going vessel must be classed by a
classification society. The classification society certifies
that the vessel is in class, signifying that the
vessel has been built and maintained in accordance with the
rules of the classification society and complies with applicable
rules and regulations of the vessels country of registry
and the international conventions of which that country is a
member. In addition, where surveys are required by international
conventions and corresponding laws and ordinances of a flag
state, the classification society will undertake them on
application or by official order, acting on behalf of the
authorities concerned.
The classification society also undertakes, on request, other
surveys and checks that are required by regulations and
requirements of the flag state. These surveys are subject to
agreements made in each individual case or to the regulations of
the country concerned. For maintenance of the class, regular and
extraordinary surveys of hull, machinery (including the
electrical plant) and any special equipment classed are required
to be performed as follows:
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Annual Surveys: For seagoing ships, annual
surveys are conducted for the hull and the machinery (including
the electrical plant) and, where applicable, for special
equipment classed, at intervals of 12 months from the date
of commencement of the class period indicated in the certificate.
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Intermediate Surveys: Extended annual surveys
are referred to as intermediate surveys and typically are
conducted two and one-half years after commissioning and each
class renewal. Intermediate surveys may be carried out on the
occasion of the second or third annual survey.
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Class Renewal Surveys: Class renewal
surveys, also known as special surveys, are carried out for the
ships hull, machinery (including the electrical plant),
and for any special equipment classed, at the intervals
indicated by the character of classification for the hull. At
the special survey, the vessel is thoroughly examined, including
audio-gauging, to determine the thickness of its steel
structure. Should the thickness be found to be less than class
requirements, the classification society would prescribe steel
renewals. The classification society may grant a one-year grace
period for completion of the special survey. Substantial amounts
of money may have to be spent for steel renewals to pass a
special survey if the vessel experiences excessive wear and
tear. In lieu of the special survey every four or five years,
depending on whether a grace period was granted, a ship owner
has the option of arranging with the classification society for
the vessels integrated hull or machinery to be on a
continuous survey cycle, in which every part of the vessel would
be surveyed within a five-year cycle.
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Management
of Ship Operations, Administration and Safety
Navios Holdings provides, through its wholly-owned subsidiary,
Navios ShipManagement, expertise in various functions critical
to our operations. Pursuant to a management agreement and an
administrative services agreement with Navios ShipManagement, we
have access to human resources, financial and other
administrative functions, including:
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bookkeeping, audit and accounting services;
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administrative and clerical services;
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banking and financial services; and
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client and investor relations.
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Technical management services are also provided, including:
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commercial management of the vessel;
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vessel maintenance and crewing;
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purchasing and insurance; and
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shipyard supervision.
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For more information on the management agreement we have with
Navios ShipManagement and the administrative services agreement
we have with Navios ShipManagement, please read
Item 7 Unitholders and Related Party
Transactions.
Crewing
and Staff
Navios ShipManagement crews its vessels primarily with Greek,
Filipino, Ukrainian, Polish and Georgian officers and Filipino,
Georgian and Ukrainian seamen. Navios ShipManagement is
responsible for selecting its Greek officers. For other
nationalities, officers and seamen are referred to Navios
ShipManagement by local crewing agencies. The crewing agencies
handle each seamans training, travel, and payroll. Navios
ShipManagement requires that all of its seamen have the
qualifications and licenses required to comply with
international regulations and shipping conventions.
Risk of
Loss and Liability Insurance
General
The operation of any cargo vessel includes risks such as
mechanical failure, physical damage, collision, property loss,
cargo loss or damage, business interruption due to political
circumstances in foreign countries, hostilities, and labor
strikes. In addition, there is always an inherent possibility of
marine disaster, including oil spills and other environmental
mishaps, and the liabilities arising from owning and operating
vessels in international trade. OPA, which imposes virtually
unlimited liability upon owners, operators and demise charterers
of any vessel trading in the United States exclusive economic
zone for certain oil pollution accidents in the United States,
has made liability insurance more expensive for ship owners and
operators trading in the U.S. market. While we believe that
our present insurance coverage is adequate, not all risks can be
insured, and there can be no guarantee that any specific claim
will be paid, or that we will always be able to obtain adequate
insurance coverage at reasonable rates.
Hull
and Machinery and War Risk Insurances
We have marine hull and machinery and war risk insurance, which
include coverage of the risk of actual or constructive total
loss, for all of our owned vessels. Each of the owned vessels is
covered up to at least fair market value, with a deductible of
$0.1 million per Panamax and $0.2 million per Capesize
vessel for the hull and machinery insurance. There are no
deductibles for the war risk insurance. We have also arranged
increased value insurance for most of the owned vessels. Under
the increased value insurance, in case of total loss of the
vessel, we will be able to recover the sum insured under the
increased value policy in addition to the sum insured under the
hull and machinery policy. Increased value insurance also covers
excess liabilities that are not recoverable in full by the hull
and machinery policies by reason of under-insurance.
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Protection
and Indemnity Insurance
Protection and indemnity insurance is provided by mutual
protection and indemnity associations, or P&I Associations,
which covers third-party liabilities in connection with its
shipping activities. This includes third-party liability and
other related expenses for injury or death of crew, passengers
and other third parties, loss of or damage to cargo, claims
arising from collisions with other vessels, damage to other
third-party property, pollution arising from oil or other
substances, towing and other related costs, including wreck
removal. Protection and indemnity insurance is a form of mutual
indemnity insurance, extended by protection and indemnity mutual
associations, or clubs. Subject to the
capping discussed below, for pollution, our coverage
is $4.25 billion per incident. Our current protection and
indemnity insurance coverage for each owned vessel for pollution
is $1.0 billion per vessel per incident. The 13 P&I
Associations that comprise the International Group insure
approximately 90% of the worlds commercial tonnage and
have entered into a pooling agreement to reinsure each
associations liabilities. As a member of a P&I
Association, which is a member of the International Group, we
are subject to calls payable to the associations based on our
claim records as well as the claim records of all other members
of the individual associations, and members of the pool of
P&I Associations comprising the International Group.
Uninsured
Risks
Not all risks are insured and not all risks are insurable. The
principal insurable risks which nonetheless remain uninsured
across our fleet are loss of hire and
strikes. Navios Holdings does not insure these risks
because the costs are regarded as disproportionate. These
insurances provide, subject to a deductible, a limited indemnity
for hire that would not be receivable by the ship-owner for
reasons set forth in the policy. For example, loss of hire risk
may be covered on a
14/90/90
basis, with a 14 days deductible, 90 days cover per
incident and a
90-day
overall limit per vessel per year. Should a vessel on time
charter, where the vessel is paid a fixed hire day by day,
suffer a serious mechanical breakdown, the daily hire will no
longer be payable by the charterer. The purpose of the loss of
hire insurance is to secure the loss of hire during such
periods. In the case of strikes insurance, if a vessel is being
paid a fixed sum to perform a voyage and the ship becomes strike
bound at a loading or discharging port, the insurance covers the
loss of earnings during such periods.
Credit
Risk Insurance
We have insured each of our charter-out contracts, for the
length of the entire agreement, through a double AA+
rated European Union governmental agency. If the charterer goes
into payment default under the terms of the policy the insurance
company will reimburse the losses for the remaining term of the
charter-out contract.
Regulation
Sources
of applicable rules and standards
Shipping is one of the worlds most heavily regulated
industries, and in addition it is subject to many industry
standards. Government regulation significantly affects the
ownership and operation of vessels. These regulations consist
mainly of rules and standards established by international
conventions, but they also include national, state, and local
laws and regulations in force in jurisdictions where vessels may
operate or are registered, and which are commonly more stringent
than international rules and standards. This is the case
particularly in the United States and, increasingly, in Europe.
A variety of governmental and private entities subject vessels
to both scheduled and unscheduled inspections. These entities
include local port authorities (the U.S. Coast Guard,
harbor masters or equivalent entities), classification
societies, flag state administration (country vessel of
registry), and charterers, particularly terminal operators.
Certain of these entities require vessel owners to obtain
permits, licenses, and certificates for the operation of their
vessels. Failure to maintain necessary permits or approvals
could require a vessel owner to incur substantial costs or
temporarily suspend operation of one or more of its vessels.
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Heightened levels of environmental and quality concerns among
insurance underwriters, regulators, and charterers continue to
lead to greater inspection and safety requirements on all
vessels and may accelerate the scrapping of older vessels
throughout the industry. Increasing environmental concerns have
created a demand for vessels that conform to stricter
environmental standards. Vessel owners are required to maintain
operating standards for all vessels that will emphasize
operational safety, quality maintenance, continuous training of
officers and crews and compliance with U.S. and
international regulations.
The International Maritime Organization, or IMO, has negotiated
a number of international conventions concerned with preventing,
reducing or controlling pollution from ships. These fall into
two main categories, consisting firstly of those concerned
generally with ship safety standards, and secondly of those
specifically concerned with measures to prevent pollution.
Ship
safety regulation
In the former category the primary international instrument is
the Safety of Life at Sea Convention 1974, as amended, (SOLAS),
together with the regulations and codes of practice that form
part of its regime. Much of SOLAS is not directly concerned with
preventing pollution, but some of its safety provisions are
intended to prevent pollution as well as promote safety of life
and preservation of property. These regulations have been and
continue to be regularly amended as new and higher safety
standards are introduced with which we are required to comply.
An amendment of SOLAS introduced the International Safety
Management (ISM) Code, which has been effective since July 1998.
Under the ISM Code the party with operational control of a
vessel is required to develop an extensive safety management
system that includes, among other things, the adoption of a
safety and environmental protection policy setting forth
instructions and procedures for operating its vessels safely and
describing procedures for responding to emergencies. The ISM
Code requires that vessel operators obtain a safety management
certificate for each vessel they operate. This certificate
evidences compliance by a vessels management with code
requirements for a safety management system. No vessel can
obtain a certificate unless its manager has been awarded a
document of compliance, issued by the respective flag state for
the vessel, under the ISM Code. Noncompliance with the ISM Code
and other IMO regulations may subject a ship owner to increased
liability, may lead to decreases in available insurance coverage
for affected vessels, and may result in the denial of access to,
or detention in, some ports. For example, the United States
Coast Guard and European Union authorities have indicated that
vessels not in compliance with the ISM Code will be prohibited
from trading in ports in the United States and European Union.
Another amendment of SOLAS, made after the terrorist attacks in
the United States on 11 September 2001, introduced special
measures to enhance maritime security, including the
International Ship and Port Facilities Security Code (ISPS Code).
Our owned fleet maintains ISM and ISPS certifications for safety
and security of operations. In addition, we voluntarily
implement and maintain certifications pursuant to the
International Organization for Standardization, or ISO for its
office and ships covering both quality of services and
environmental protection (ISO 9001 and ISO 14001, respectively).
Regulations
to prevent pollution from ships
In the secondary main category of international regulation the
primary instrument is the International Convention for the
Prevention of Pollution from Ships, or MARPOL, which imposes
environmental standards on the shipping industry set out in
Annexes I-VI
of the Convention. These contain regulations for the prevention
of pollution by oil (Annex I), by noxious liquid substances
in bulk (Annex II), by harmful substances in packaged forms
within the scope of the International Maritime Dangerous Goods
Code (Annex III), by sewage (Annex IV), by garbage
(Annex V), and by air emissions (Annex VI).
These regulations have been and continue to be regularly amended
as new and higher standards of pollution prevention are
introduced with which we are required to comply.
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For example, MARPOL Annex VI, together with the NOx
Technical Code established thereunder, sets limits on sulphur
oxide and nitrogen oxide emissions from ship exhausts and
prohibits deliberate emissions of ozone depleting substances,
such as chlorofluorocarbons. It also includes a global cap on
the sulphur content of fuel oil and allows for special areas to
be established with more stringent controls on sulphur
emissions. Originally adopted in September 1997, Annex VI
came into force in May 2005 and was amended in October 2008 (as
was the NOx Technical Code) to provide for progressively more
stringent limits on such emissions from 2010 onwards. We
anticipate incurring costs in complying with these more
stringent standards.
Greenhouse
Gas Emissions
In February 2005, the Kyoto Protocol to the United Nations
Framework Convention on Climate Change entered into force.
Pursuant to the Protocol, adopting countries are required to
implement national programs to reduce emissions of certain
gases, generally referred to as greenhouse gases, which are
suspected of contributing to global warming. Currently, the
greenhouse gas emissions from international shipping do not come
under the Kyoto Protocol. The European Union confirmed in April
2007 that it plans to expand the European Union emissions
trading scheme by adding vessels. In the United States, the
California Attorney General and a coalition of environmental
groups petitioned the EPA in October 2007 to regulate greenhouse
gas emissions from ocean-going ships under the Clean Air Act.
Any passage of climate control legislation or other regulatory
initiatives by the IMO, European Union, or individual countries
where we operate that restrict emissions of greenhouse gases
from vessels could require us to make significant financial
expenditures we cannot predict with certainty at this time.
Other
international regulations to prevent pollution
In addition to MARPOL other more specialized international
instruments have been adopted to prevent different types of
pollution or environmental harm from ships. In February 2004 the
IMO adopted an International Convention for the Control and
Management of Ships Ballast Water and Sediments, or the
BWM Convention. The BWM Conventions implementing
regulations call for a phased introduction of mandatory ballast
water exchange requirements (beginning in 2009), to be replaced
in time with mandatory concentration limits. The BWM Convention
will not enter into force until 12 months after it has been
adopted by 30 states, the combined merchant fleets of which
represent not less than 35% of the gross tonnage of the
worlds merchant shipping. To-date, there has not been
sufficient adoption of this standard by governments that are
members of the convention for it to take force. Moreover, the
IMO has supported deferring the requirements of this convention
that would first come into effect until December 31, 2011,
even if it were to be adopted earlier.
European
regulations
European regulations in the maritime sector are in general based
on international law. However, since the Erika incident
in 1999, the European Community has become increasingly active
in the field of regulation of maritime safety and protection of
the environment. It has been the driving force behind a number
of amendments of MARPOL (including, for example, changes to
accelerate the time-table for the phase-out of single hull
tankers, and to prohibit the carriage in such tankers of heavy
grades of oil), and if dissatisfied either with the extent of
such amendments or with the time-table for their introduction it
has been prepared to legislate on a unilateral basis. In some
instances where it has done so, international regulations have
subsequently been amended to the same level of stringency as
that introduced in Europe, but the risk is well established that
EU regulations may from time to time impose burdens and costs on
ship owners and operators which are additional to those involved
in complying with international rules and standards.
In some areas of regulation the EU has introduced new laws
without attempting to procure a corresponding amendment of
international law. Notably it adopted in 2005 a directive on
ship-source pollution, imposing criminal sanctions for pollution
not only where this is caused by intent or recklessness (which
would be an offence under MARPOL), but also where it is caused
by serious negligence. The directive could therefore
result in criminal liability being incurred in circumstances
where it would not be incurred under international law.
Experience has shown that in the emotive atmosphere often
associated with
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pollution incidents, retributive attitudes towards ship
interests have found expression in negligence being alleged by
prosecutors and found by courts on grounds which the
international maritime community has found hard to understand.
Moreover there is skepticism that the notion of serious
negligence is likely to prove any narrower in practice
than ordinary negligence. Criminal liability for a pollution
incident could not only result in us incurring substantial
penalties or fines but may also, in some jurisdictions,
facilitate civil liability claims for greater compensation than
would otherwise have been payable.
United
States Environmental Regulations and laws governing civil
liability for pollution
Environmental legislation in the United States merits particular
mention as it is in many respects more onerous than
international laws, representing a high-water mark of regulation
with which ship owners and operators must comply, and of
liability likely to be incurred in the event of non-compliance
or an incident causing pollution.
US federal legislation, including notably the Oil Pollution Act
of 1990, or the OPA, establishes an extensive regulatory and
liability regime for the protection and cleanup of the
environment from oil spills, including bunker oil spills from
drybulk vessels as well as cargo or bunker oil spills from
tankers. The OPA affects all owners and operators whose vessels
trade in the United States, its territories and possessions or
whose vessels operate in United States waters, which includes
the United States territorial sea and its 200 nautical
mile exclusive economic zone. Under the OPA, vessel owners,
operators and bareboat charterers are responsible
parties and are jointly, severally and strictly liable
(unless the spill results solely from the act or omission of a
third party, an act of God or an act of war) for all containment
and clean-up
costs and other damages arising from discharges or substantial
threats of discharges, of oil from their vessels. In addition to
potential liability under OPA as the relevant federal
legislation, vessel owners may in some instances incur liability
on an even more stringent basis under state law in the
particular state where the spillage occurred.
Title VII of the Coast Guard and Maritime Transportation
Act of 2004, or the CGMTA, amended OPA to require the owner or
operator of any non-tank vessel of 400 gross tons or more,
that carries oil of any kind as a fuel for main propulsion,
including bunkers, to prepare and submit a response plan for
each vessel on or before August 8, 2005. Prior to this
amendment, these provisions of OPA applied only to vessels that
carry oil in bulk as cargo. The vessel response plans must
include detailed information on actions to be taken by vessel
personnel to prevent or mitigate any discharge or substantial
threat of such a discharge of ore from the vessel due to
operational activities or casualties. OPA 90 had historically
limited liability of responsible parties to the greater of $600
per gross ton or $0.5 million per containership that is
over 300 gross tons (subject to possible adjustment for
inflation). Amendments to OPA which came into effect on
July 11, 2006 increased the liability limits for
responsible parties for any vessel other than a tank vessel to
$950 per gross ton or $0.8 million, whichever is greater.
These limits of liability do not apply if an incident was
directly caused by violation of applicable United States federal
safety, construction or operating regulations or by a
responsible partys gross negligence or willful misconduct,
or if the responsible party fails or refuses to report the
incident or to cooperate and assist in connection with oil
removal activities.
In addition, the Comprehensive Environmental Response,
Compensation, and Liability Act, or CERCLA, which applies to the
discharge of hazardous substances (other than oil) whether on
land or at sea, contains a similar liability regime and provides
for cleanup, removal and natural resource damages. Liability
under CERCLA is limited to the greater of $300 per gross ton or
$0.5 million for vessels not carrying hazardous substances
as cargo or residue, unless the incident is caused by gross
negligence, willful misconduct, or a violation of certain
regulations, in which case liability is unlimited.
We currently maintain, for each of our owned vessels, insurance
coverage against pollution liability risks in the amount of
$1.0 billion per incident. The insured risks include
penalties and fines as well as civil liabilities and expenses
resulting from accidental pollution. However, this insurance
coverage is subject to exclusions, deductibles and other terms
and conditions. If any liabilities or expenses fall within an
exclusion from coverage, or if damages from a catastrophic
incident exceed the $1.0 billion limitation of coverage per
incident, our cash flow, profitability and financial position
could be adversely impacted.
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OPA requires owners and operators of all vessels over
300 gross tons, even those that do not carry petroleum or
hazardous substances as cargo, to establish and maintain with
the U.S. Coast Guard evidence of financial responsibility
sufficient to meet their potential liabilities under OPA. The
U.S. Coast Guard has implemented regulations requiring
evidence of financial responsibility in the amount of $900 per
gross ton, which includes the OPA limitation on liability of
$600 per gross ton and the CERCLA liability limit of $300 per
gross ton for vessels not carrying hazardous substances as cargo
or residue. Under the regulations, vessel owners and operators
may evidence their financial responsibility by showing proof of
insurance, surety bond, self-insurance or guaranty. On
February 6, 2008 the U.S. Coast Guard proposed
amendments to the financial responsibility regulations to
increase the required amount of such COFRs to $1,250 per gross
ton to reflect the 2006 increases in limits on OPA 90 liability.
The increased amounts will become effective 90 days after
the proposed regulations are finalized. We believe our insurance
coverage as described above meets the requirements of OPA.
Under OPA, an owner or operator of a fleet of vessels is
required only to demonstrate evidence of financial
responsibility in an amount sufficient to cover the vessel in
the fleet having the greatest maximum liability under OPA. Under
the self-insurance provisions, the ship owner or operator must
have a net worth and working capital, measured in assets located
in the United States against liabilities located anywhere in the
world, that exceeds the applicable amount of financial
responsibility. We have complied with the U.S. Coast Guard
regulations by providing a certificate of responsibility from
third party entities that are acceptable to the U.S. Coast
Guard evidencing sufficient self-insurance.
The U.S. Coast Guards regulations concerning
certificates of financial responsibility provide, in accordance
with OPA, that claimants may bring suit directly against an
insurer or guarantor that furnishes certificates of financial
responsibility. In the event that such insurer or guarantor is
sued directly, it is prohibited from asserting any contractual
defense that it may have had against the responsible party and
is limited to asserting those defenses available to the
responsible party and the defense that the incident was caused
by the willful misconduct of the responsible party. Certain
organizations, which had typically provided certificates of
financial responsibility under pre-OPA laws, including the major
protection and indemnity organizations, have declined to furnish
evidence of insurance for vessel owners and operators if they
are subject to direct actions or required to waive insurance
policy defenses. This requirement may have the effect of
limiting the availability of the type of coverage required by
the Coast Guard and could increase our costs of obtaining this
insurance as well as the costs of our competitors that also
require such coverage.
OPA specifically permits individual states to impose their own
liability regimes with regard to oil pollution incidents
occurring within their boundaries, and some states have enacted
legislation providing for unlimited liability for oil spills. In
some cases, states which have enacted such legislation have not
yet issued implementing regulations defining vessels
owners responsibilities under these laws. We intend to
comply with all applicable state regulations in the ports where
our vessels call.
The United States Clean Water Act prohibits the discharge of oil
or hazardous substances in U.S. navigable waters and
imposes strict liability in the form of penalties for
unauthorized discharges. The Clean Water Act also imposes
substantial liability for the costs of removal, remediation and
damages and complements the remedies available under CERCLA.
Pursuant to regulations promulgated by the
U.S. Environmental Protection Agency, or the EPA, in the
early 1970s, the discharge of sewage and effluent from properly
functioning marine engines was exempted from the permit
requirements of the National Pollution Discharge Elimination
System. This exemption allowed vessels in U.S. ports to
discharge certain substances, including ballast water, without
obtaining a permit to do so. However, on March 30, 2005, a
U.S. District Court for the Northern District of California
granted summary judgment to certain environmental groups and
U.S. states that had challenged the EPA regulations,
arguing that the EPA exceeded its authority in promulgating
them. On September 18, 2006, the U.S. District Court
issued an order invalidating the exemption in EPAs
regulations for all discharges incidental to the normal
operation of a vessel as of September 30, 2008, and
directing EPA to develop a system for regulating all discharges
from vessels by that date.
Although EPA appealed this decision on November 16, 2006
and the court heard oral arguments in August 2007, EPA also
provided notice on June 21, 2007 of its intention to
promulgate rules regarding the
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regulation of ballast water discharges and other discharges
incidental to the normal operation of vessels and solicited
public comments. If the exemption is repealed or EPA promulgates
a final rule placing NPDES permitting requirements on ballast
water discharges and other discharges incidental to the normal
operation of vessels, we could be required to: install equipment
on our vessels to treat ballast water before it is discharged;
implement other port facility disposal arrangements or
procedures at potentially substantial cost;
and/or
otherwise restrict our vessel traffic in U.S. waters. The
installation, operation and upkeep of these systems would
increase the costs of operating in the United States and other
jurisdictions where similar requirements might be adopted. In
the absence of federal standards, states have enacted
legislation or regulations to address invasive species through
ballast water and hull cleaning management and permitting
requirements
The Federal Clean Air Act (CAA), requires the EPA to promulgate
standards applicable to emissions of volatile organic compounds
and other air contaminants. Our vessels are subject to CAA vapor
control and recovery standards for cleaning fuel tanks and
conducting other operations in regulated port areas and
emissions standards for so-called Category 3 marine
diesel engines operating in U.S. waters. The marine diesel
engine emission standards are currently limited to new engines
beginning with the 2004 model year. In November 2007, EPA
announced its intention to proceed with development of more
stringent standards for emissions of particulate matter, sulfur
oxides, and nitrogen oxides and other related provisions for new
Category 3 marine diesel engines, consistent with the United
States proposal to amend Annex VI of MARPOL described
below. If these proposals are adopted and apply not only to
engines manufactured after the effective date but also to
existing marine diesel engines, we may incur costs to install
control equipment on our vessels to comply with the new
standards.
Greenhouse
Gas Emissions
As noted above, in the United States, the California Attorney
General and a coalition of environmental groups petitioned the
EPA in October 2007 to regulate greenhouse gas emissions from
ocean going ships under the Clean Air Act. Any passage of
climate control legislation or othe regulatory initiatives by
the IMO, European Union, or individual countries where we
operate, including the US, that restrict emissions of greenhouse
gases from vessels could require us to make significant
financial expenditures the amount of which we cannot predict
with certainty at this time.
Security
Regulations
Since the terrorist attacks of September 11, 2001, there
have been a variety of initiatives intended to enhance vessel
security. On November 25, 2002, MTSA came into effect. To
implement certain portions of the MTSA, in July 2003, the United
States Coast Guard issued regulations requiring the
implementation of certain security requirements aboard vessels
operating in waters subject to the jurisdiction of the United
States. Similarly, in December 2002, amendments to SOLAS created
a new chapter of the convention dealing specifically with
maritime security. The new chapter went into effect on
July 1, 2004, and imposes various detailed security
obligations on vessels and port authorities, most of which are
contained in the newly created ISPS Code. Among the various
requirements are:
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on-board installation of automatic information systems to
enhance vessel-to-vessel and vessel-to-shore communications;
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on-board installation of ship security alert systems;
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the development of vessel security plans; and
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compliance with flag state security certification requirements.
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The U.S. Coast Guard regulations, intended to be aligned
with international maritime security standards, exempt
non-U.S. vessels
from MTSA vessel security measures, provided such vessels have
on board, by July 1, 2004, a valid ISSC Certificate that
attests to the vessels compliance with SOLAS security
requirements and the ISPS Code. The vessels in our initial fleet
have on board valid ISSC Certificates and, therefore, are exempt
from obtaining U.S. Coast Guard approved MTSA security
plans.
44
International
laws governing civil liability to pay compensation or
damages
In 2001, the IMO adopted the International Convention on Civil
Liability for Bunker Oil Pollution Damage, or the Bunkers
Convention, which imposes strict liability on ship owners for
pollution damage in jurisdictional waters of ratifying states
caused by discharges of bunker oil. The Bunkers
Convention defines bunker oil as any
hydrocarbon mineral oil, including lubricating oil, used or
intended to be used for the operation or propulsion of the ship,
and any residues of such oil. The Bunkers Convention also
requires registered owners of ships over a certain size to
maintain insurance for pollution damage in an amount equal to
the limits of liability under the applicable national or
international limitation regime (but not exceeding the amount
calculated in accordance with the Convention on Limitation of
Liability for Maritime Claims of 1976, as amended). The Bunkers
Convention entered into force on November 21, 2008, and in
early 2009 it was in effect in 22 states. In other
jurisdictions liability for spills or releases of oil from
ships bunkers continues to be determined by the national
or other domestic laws in the jurisdiction where the events or
damages occur.
Outside the United States, national laws generally provide for
the owner to bear strict liability for pollution, subject to a
right to limit liability under applicable national or
international regimes for limitation of liability. The most
widely applicable international regime limiting maritime
pollution liability is the 1976 Convention. Rights to limit
liability under the 1976 Convention are forfeited where a spill
is caused by a shipowners intentional or reckless conduct.
Some states have ratified the 1996 Protocol to the 1976
Convention, which provides for liability limits substantially
higher than those set forth in the 1976 Convention to apply in
such states. Finally, some jurisdictions are not a party to
either the 1976 Convention or the Protocol of 1996, and,
therefore, shipowners rights to limit liability for
maritime pollution in such jurisdictions may be uncertain.
Taxation
of the Partnership
United
States Taxation
The following is a discussion of the material U.S. federal
income tax considerations applicable to us This discussion is
based upon provisions of the Code, final and temporary
regulations thereunder (Treasury Regulations), and
administrative rulings and court decisions, all as in effect
currently and during our year ended December 31, 2008 and
all of which are subject to change, possibly with retroactive
effect. Changes in these authorities may cause the tax
consequences to vary substantially from the consequences
described below. The following discussion is for general
information purposes only and does not purport to be a
comprehensive description of all of the U.S. federal income
tax considerations applicable to us.
Election to be Treated as a
Corporation. We have elected to be treated as
a corporation for U.S. federal income tax purposes. As
such, we are subject to U.S. federal income tax on our
income to the extent it is from U.S. sources or otherwise
is effectively connected with the conduct of a trade or business
in the Unites States as discussed below.
Taxation of Operating
Income. Substantially all of our gross income
is attributable to the transportation of drybulk and related
products. For this purpose, gross income attributable to
transportation (Transportation Income) includes
income derived from, or in connection with, the use (or hiring
or leasing for use) of a vessel to transport cargo, or the
performance of services directly related to the use of any
vessel to transport cargo, and thus includes both time charter
and bareboat charter income.
Transportation Income that is attributable to transportation
that either begins or ends, but that does not both begin and
end, in the United States (U.S. Source International
Transportation Income) is considered to be 50.0% derived
from sources within the United States. Transportation Income
attributable to transportation that both begins and ends in the
United States (U.S. Source Domestic Transportation
Income) is considered to be 100.0% derived from sources
within the United States. Transportation Income attributable to
transportation exclusively between
non-U.S. destinations
is considered to be 100.0% derived from sources outside the
United States. Transportation Income derived from sources
outside the United States generally is not subject to
U.S. federal income tax.
45
We believe that we did not earn any U.S. Source Domestic
Transportation Income for our year ended December 31, 2008
and expect that we will not earn any such income for future
years. However, certain of our activities gave rise to
U.S. Source International Transportation Income, and future
expansion of our operations could result in an increase in the
amount of U.S. Source International Transportation Income,
which generally would be subject to U.S. federal income
taxation, unless the exemption from U.S. federal income
taxation under Section 883 of the Code (the
Section 883 Exemption) applied.
The Section 883 Exemption. In
general, the Section 883 Exemption provides that if a
non-U.S. corporation
satisfies the requirements of Section 883 of the Code and
the Treasury Regulations thereunder (the Section 883
Regulations), it will not be subject to the net basis and
branch profit taxes or the 4.0% gross basis tax described below
on its U.S. Source International Transportation Income. The
Section 883 Exemption applies only to U.S. Source
International Transportation Income and does not apply to
U.S. Source Domestic Transportation Income. We qualify for
the Section 883 Exemption if, among other matters, we meet
the following three requirements:
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We are organized in a jurisdiction outside the United States
that grants an equivalent exemption from tax to corporations
organized in the United States with respect to the types of
U.S. Source International Transportation Income that we
earn (an Equivalent Exemption);
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We satisfy the Publicly Traded Test (as described below) or the
Qualified Shareholder Stock Ownership Test (as described
below); and
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We meet certain substantiation, reporting and other requirements.
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We are organized under the laws of the Republic of the Marshall
Islands. The U.S. Treasury Department has recognized the
Republic of the Marshall Islands as a jurisdiction that grants
an Equivalent Exemption with respect to the type of income we
have earned and are expected to earn. Consequently, our
U.S. Source International Transportation Income (including
for this purpose, any such income earned by our subsidiaries,
all of which have elected to be disregarded as entities separate
from us for U.S. federal income tax purposes) will be
exempt from U.S. federal income taxation provided we meet
the Publicly Traded Test or the Qualified Shareholder Stock
Ownership Test and we satisfy certain substantiation, reporting
and other requirements.
In order to meet the Publicly Traded Test, the equity interests
in the
non-U.S. corporation
at issue must be primarily traded and
regularly traded on an established securities market
either in the United States or in a jurisdiction outside the
United States that grants an Equivalent Exemption. The
Section 883 Regulations generally provide, in pertinent
part, that a class of equity interests in a
non-U.S. corporation
will be considered to be primarily traded on an
established securities market in a given country if the number
of units of such class that are traded during any taxable year
on all established securities markets in that country exceeds
the number of units in such class that are traded during that
year on established securities markets in any other single
country. Equity interests in a
non-U.S. corporation
will be considered to be regularly traded on an
established securities market under the Section 883
Regulations provided one or more classes of such equity
interests representing more than 50.0% of the aggregate vote and
value of all of the outstanding equity interests in the
non-U.S. corporation
satisfy certain listing and trading volume requirements. These
listing and trading volume requirements are satisfied with
respect to a class of equity interests listed on an established
securities market provided trades in such class are effected,
other than in de minimis quantities, on such market on at least
60 days during the taxable year and the aggregate number of
units in such class that are traded on such market or markets
during the taxable year are at least 10% of the average number
of units outstanding in that class during the taxable year (with
special rules for short taxable years). In addition, a class of
equity interests traded on an established securities market in
the United States will be considered to satisfy the listing and
trading volume requirements if the equity interests in such
class are regularly quoted by dealers making a
market in such class (within the meaning of the
Section 883 Regulations). Notwithstanding these rules, a
class of equity that would otherwise be treated as
regularly traded on an established securities market
will not be so treated if, for more than half of the number of
days during the taxable year, one or more 5.0%
unitholders (i.e., unitholders owning, actually or
constructively, at least 5.0% of the vote and value of that
class) own in the aggregate 50.0% or more of the vote and value
of that class (the Closely Held Block Exception),
unless the corporation can establish that a sufficient
proportion of such 5.0% unitholders are
46
Qualified Shareholders (as defined below) so as to preclude
other persons who are 5.0% unitholders from owning 50.0% or more
of the value of that class for more than half the days during
the taxable year.
Because our common units are and have been traded solely on the
New York Stock Exchange, which is considered to be an
established securities market, our common units are and have
been primarily traded on an established securities
market for purposes of the Publicly Traded Test.
Further, although the matter is not free from doubt, based upon
our expected cash flow and distributions on our outstanding
equity interests, we believe that our common units represented
more than 50.0% of the total value of all of our outstanding
equity interests, and we believe that we satisfied the trading
volume requirements described previously for our year ended
December 31, 2008. We believe that we did not lose
eligibility for the Section 883 Exemption as a result of
the Closely Held Block Exception for such year, and
consequently, we believe we satisfied the Publicly Traded Test
for our year ended December 31, 2008.
While there can be no assurance that we will continue to satisfy
the requirements for the Publicly Traded Test in the future, and
our board of directors could determine that it is in our best
interests to take an action that would result in our not being
able to satisfy the Publicly Traded Test, we presently expect to
continue to satisfy the requirements for the Publicly Traded
Test and the Section 883 Exemption for future years. Please
see below for a discussion of the consequences in the event we
do not satisfy the Publicly Traded Test or otherwise fail to
qualify for the Section 883 Exemption.
Even if we were not able to satisfy the Publicly Traded Test for
a given taxable year, we may be able to satisfy a
Qualified Shareholder Stock Ownership Test for a
year in the event Navios Holdings owned more than 50.0% of the
value of our outstanding equity interests for more than half of
the days in such year, Navios Holdings itself met the Publicly
Traded Test for such year and Navios Holdings provided us with
certain information that we need in order to claim the benefits
of the Qualified Shareholder Stock Ownership Test. In connection
with our IPO, Navios Holdings has represented that it then met
the Publicly Traded Test and agreed to provide the information
described above. However, there can be no assurance that Navios
Holdings will continue to meet the Publicly Traded Test or be
able to provide the information we need to claim the benefits of
the Section 883 Exemption under the Qualified Shareholder
Ownership Test. Further, the relative values of our equity
interests are uncertain and subject to change, and as a result
Navios Holdings may not own more than 50.0% of the value of our
outstanding equity interests for any year. Consequently, there
can be no assurance that we would meet the Qualified Shareholder
Stock Ownership Test based upon the ownership by Navios Holdings
of an indirect ownership interest in us.
The Net Basis Tax and Branch Profits
Tax. If we earn U.S. Source
International Transportation Income and the Section 883
Exemption does not apply, the U.S. source portion of such
income may be treated as effectively connected with the conduct
of a trade or business in the United States (Effectively
Connected Income) if we have a fixed place of business in
the United States and substantially all of our U.S. Source
International Transportation Income is attributable to regularly
scheduled transportation or, in the case of bareboat charter
income, is attributable to a fixed place of business in the
United States.
We believe that, for our year ended December 31, 2008, none
of our U.S. Source International Transportation Income was
attributable to regularly scheduled transportation or received
pursuant to bareboat charters. As a result, we believe that none
of our U.S. Source International Transportation Income for
such year would be treated as Effectively Connected Income even
in the event we did not qualify for the Section 883
Exemption. However, there is no assurance that we will not earn
income pursuant to regularly scheduled transportation or
bareboat charters attributable to a fixed place of business in
the United States in the future, which would result in such
income being treated as Effectively Connected Income. In
addition, any U.S. Source Domestic Transportation Income
generally will be treated as Effectively Connected Income. Any
income we earn that is treated as Effectively Connected Income
would be subject to U.S. federal corporate income tax (the
highest statutory rate is currently 35.0%) as well as 30.0%
branch profits tax imposed under Section 884 of the Code.
In addition, a 30.0% branch interest tax could be imposed on
certain interest paid or deemed paid by us.
47
On the sale of a vessel that has produced Effectively Connected
Income, we could be subject to the net basis corporate income
tax as well as branch profits tax with respect to the gain
recognized up to the amount of certain prior deductions for
depreciation that reduced Effectively Connected Income.
Otherwise, we would not be subject to U.S. federal income
tax with respect to gain realized on the sale of a vessel,
provided the gain is not attributable to an office or other
fixed place of business maintained by us in the United States
under U.S. federal income tax principles.
The 4.0% Gross Basis Tax. If the
Section 883 Exemption does not apply and the net basis tax
does not apply, we would be subject to a 4.0% U.S. federal
income tax on the U.S. source portion of our
gross U.S. Source International Transportation Income,
without benefit of deductions.
Marshall
Islands Taxation
Based on the opinion of Reeder and Simpson, P.C., our
counsel as to matters of the law of the Republic of the Marshall
Islands, because we, our operating subsidiary and our controlled
affiliates do not, and do not expect to, conduct business or
operations in the Republic of the Marshall Islands, neither we
nor our controlled affiliates will be subject to income, capital
gains, profits or other taxation under current Marshall Islands
law. As a result, distributions by our operating subsidiary and
our controlled affiliates to us will not be subject to Marshall
Islands taxation.
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C.
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Organizational
Structure
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Please read exhibit 8.1 to this Annual Report for a list of
our significant subsidiaries as of December 31, 2008.
Other than our vessels, we do not have any material property.
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Item 4A.
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Unresolved
Staff Comments
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Not applicable.
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Item 5.
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Operating
and Financial Review and Prospects
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Overview
We are an international owner and operator of drybulk carriers,
formed in August 2007 by Navios Maritime Holdings Inc., a
vertically integrated seaborne shipping company with over
50 years of operating history in the drybulk shipping
industry. We completed our IPO on November 16, 2007. In
connection with the IPO, through a series of transactions, we
acquired all of the capital stock of the subsidiaries of Navios
Holdings that owned or had rights to eight vessels as follows:
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Prior to the closing of the IPO, Navios Holdings contributed to
us all of the outstanding shares of the capital stock of one
vessel-owning subsidiary in exchange for 4,195,000 subordinated
units;
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We sold 10,500,000 common units, representing a 56.8% limited
partner interest in us;
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We entered into a new revolving credit facility that provided us
with financing availability of up to $260.0 million, and we
borrowed $165.0 million thereunder upon the closing of the
IPO; and
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At the closing of the IPO, Navios Holdings sold to us all of the
outstanding shares of capital stock of the subsidiaries which
owned or had the rights to seven vessels in exchange for:
(i) all of the net proceeds from the IPO of 10,000,000
common units and the concurrent offering of 500,000 common units
to a corporation owned by Ms. Frangou,
(ii) $160.0 million of the $165.0 million that we
borrowed under our new revolving credit facility; (iii) the
issuance of 3,426,843 additional subordinated units to Navios
Holdings; and (iv) the issuance to our general partner,
Navios GP L.L.C.,
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of a 2.0% general partner interest in us and all of our
incentive distribution rights, which entitle it to increasing
percentages of the cash we distribute in excess of $0.4025 per
unit per quarter.
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On July 1, 2008 we issued 3,131,415 common units to Navios
Holdings for the acquisition of Navios Aurora I, and 63,906
general partnership units to the General Partner in exchange for
the contribution received from the General Partner to maintain
its 2% general partner interest in us. Navios Holdings currently
owns a 51.6% interest in us, including the 2% general partner
interest.
On November 15, 2007, Navios Partners entered into a
revolving credit facility agreement with Commerzbank AG and DVB
Bank AG maturing on November 15, 2017. This credit facility
provided Navios Partners with financing availability of up to
$260.0 million, of which $165.0 million was drawn on
November 16, 2007. Of the total drawn down amount,
$160.0 million was paid to Navios Holdings as part of the
purchase price of the capital stock of Navios Holdings
subsidiaries that owned or had rights to the eight vessels of
Navios Partners fleet. The remaining $5.0 million
balance of the drawn amount was used as working capital.
On June 25, 2008, this credit facility was amended, in
part, to increase the available borrowings by
$35.0 million, in anticipation of purchasing Navios
Aurora I, thereby increasing the total facility to
$295.0 million.
On May 2, 2008, Navios Partners borrowed $35.0 million
to finance the acquisition of the vessel Navios Fantastiks and
an additional $35.0 million to finance the acquisition of
the vessels Navios Aurora I on July 1, 2008. Navios
Partners may borrow an additional $60.0 million to
partially finance the purchase of the capital stock of the
Navios Holdings subsidiary that will own Navios TBN I upon its
delivery which is expected to occur in June 2009. Amounts that
can be borrowed under the facility will be reduced by
$60.0 million if Navios TBN I is not delivered.
In January 2009, Navios Partners amended further the terms of
its existing credit facility. The amendment is effective until
January 15, 2010 and provides for (a) repayment of
$40.0 million which took place in February 2009,
(b) maintaining cash reserves balance into a pledged
account with the agent bank as follows: $2.5 million on
January 31, 2009; $5.0 million on March 31, 2009;
$7.5 million on June 30, 2009, $10.0 million on
September 30, 2009; $12.5 million on December 31,
2009 and (c) a margin of 2.25%. Further, the covenants were
amended by (a) reducing the minimum net worth to
$100.0 million, (b) reducing the VMC (Value
Maintenance Covenant) to be at 100% using charter free values,
(c) the minimum leverage covenant to be calculated using
charter inclusive adjusted values until December 31, 2009
and (d) a new VMC was introduced based on charter attached
valuations to be at 143%. At December 31, 2008, Navios
Partners was in compliance with the financial covenants as
required under its January 2009 amended revolving loan facility.
However, if we were required to use the original loan covenants
on December 31, 2008 to test compliance, we may not have
been in compliance with certain covenants using charter free
valuations.
In January 2009, Navios Partners and its counterparty to the
Navios Aurora I charter party mutually agreed for a lump sum
amount of approximately $29.5 million paid to Navios in
February 2009. Under a new charter agreement, the remaining
$26 million balance which would have been received under
the original charter contract (adjusted for the
$29.5 million lump sum payment received) have been
allocated to the period until its original expiration in 2013 by
way of reduced daily charter rate as indicated above.
Navios Holdings acquired three of the owned vessels in our
initial fleet in December 2005 (Navios Libra II, Navios Alegria
and Navios Felicity), and the fourth owned vessel in January
2006 (Navios Gemini S). The fifth owned vessel was acquired in
March 2006 (Navios Galaxy I), however it was included as a
chartered-in vessel since its delivery to Navios Holdings in
June 2001. The sixth vessel in our initial fleet (Fantastiks,
which was part of Navios Holdings acquisition of Kleimar)
has been included in the fleet as a chartered-in vessel since
its acquisition date in February 2007. On May 2, 2008,
Fantastiks Shipping Corporation, a wholly-owned subsidiary of
Navios Partners, purchased the vessel Fantastiks for an amount
of $34.2 million of cash consideration pursuant to the
Memorandum of Agreement between Fantastiks Shipping Corporation
and Kleimar. The vessel was renamed to Navios Fantastiks upon
acquisition. The seventh vessel in our initial fleet (Navios
Prosperity) has been chartered-in by Navios Holdings since its
delivery in June 2007. On March 17,
49
2008, Navios Partners took delivery of the Navios
Aldebaran, a newbuilding Panamax vessel of 76,500 dwt. The
vessel came into the fleet under a long-term charter-in
agreement with a purchase option exercisable in 2013. On
July 1, 2008 Navios Partners acquired from Navios Holdings,
the vessel Navios Aurora I for a purchase price of
$79.9 million, consisting of $35.0 million cash and
the issuance of 3,131,415 common units to Navios Holdings.
Accordingly, the historical results discussed below, and the
historical financial statements and related notes included
elsewhere in this annual report, present operating results of
the seven owned vessels (for Navios Galaxy I, results as a
chartered-in vessel have been included for the period prior to
its acquisition in March 2006) and the two chartered in
vessels for the periods beginning from January 1, 2006 to
December 31, 2008.
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Country of
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Statement of operations
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Company name
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Vessel name
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incorporation
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2006
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2007
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2008
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Libra Shipping
Enterprises Inc
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Navios Libra II
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Marshall Is.
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1/1 12/31
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1/1 12/31
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1/1 12/31
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Alegria Shipping
Corporation
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Navios Alegria
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Marshall Is.
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1/1 12/31
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1/1 12/31
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1/1 12/31
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Felicity Shipping
Corporation
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Navios Felicity
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Marshall Is.
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1/1 12/31
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1/1 12/31
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1/1 12/31
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Gemini Shipping
Corporation
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Navios Gemini S
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Marshall Is.
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1/5 12/31
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1/1 12/31
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1/1 12/31
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Galaxy Shipping
Corporation
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Navios Galaxy I
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Marshall Is
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3/23 12/31
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1/1 12/31
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1/1 12/31
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Aurora Shipping
Enterprises Ltd.
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Navios Aurora I
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Marshall Is
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7/1 12/31
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Chartered-in vessel
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Navios Galaxy I
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1/1 3/22
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Prosperity Shipping
Corporation (*)
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Navios Prosperity
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Marshall Is.
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11/16 12/31
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1/1 12/31
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Chartered-in vessel
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Navios Prosperity
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6/19 11/15
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Fantastiks Shipping
Corporation (**)
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Navios Fantastiks
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Marshall Is.
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11/16 12/31
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1/1 12/31
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Chartered-in vessel
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Fantastiks
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2/2 11/15
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Aldebaran Shipping
Corporation (*)
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Navios Aldebaran
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Marshall Is.
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3/17 12/31
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Navios Maritime
Partners L.P
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N/A
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Marshall Is
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11/16 12/31
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1/1 12/31
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Navios Maritime
Operating LLC
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N/A
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Marshall Is
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11/16 12/31
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1/1 12/31
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(*)
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Not a vessel-owning subsidiary and
only holds rights to charter-in contract
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(**)
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Fantastiks Shipping Corporation
took ownership of the vessel Fantastiks, which was renamed to
Navios Fantastiks on May 2, 2008.
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Our historical results of operations and cash flows prior to the
IPO are not indicative of the results of operations or cash
flows to be expected from any future period. Because these
vessels were operated as part of Navios Holdings during the
historical periods prior to the IPO, the vessels were operated
in a different manner than they are after the IPO. For example,
operating expenses during the periods presented prior to the IPO
represented actual costs incurred in operating the vessels,
whereas we pay a fixed management fee to our vessel manager that
covers our vessel operating expenses until November 2009. In
addition, the financing arrangements with respect to our vessels
in place prior to the IPO are not representative of the
financing arrangements we entered into in connection with the
IPO.
This report contains forward-looking statements made pursuant to
the safe harbor provisions of the Private Securities Reform Act
of 1995. These forward looking statements are based on Navios
Partners current expectations and observations. Included
among the factors that, in our view, could cause actual results
to differ materially from the forward looking statements
contained in this report are those discussed under Risk
Factors and Forward-Looking Statements.
50
Our
Charters
We generate revenues by charging our customers for the use of
our vessels to transport their drybulk commodities. All of the
vessels in our fleet are chartered out under time charters,
which range in length from two to nine years. We may in the
future operate vessels in the spot market until the vessels have
been chartered under appropriate long-term charters.
For the year ended December 31, 2008, we have seven charter
counterparties and some of the major ones are Mitsui O.S.K.
Lines, Ltd., Cargill International S.A., The Sanko Steamship
Co.Ltd., Daiichi Chuo Kisen Kaisha and Augustea Imprese Maritime
which accounted for approximately 28.2%, 22.2%, 15.6%, 11.9% and
9.7% respectively, of total revenues. For the year ended
December 31, 2007, Cargill International S.A., The Sanko
Steamship Co.Ltd., Mitsui O.S.K. Lines, Ltd. and Augustea
Imprese Maritime accounted for approximately 30.2%, 22.0%, 17.7%
and 13.9% respectively, of total revenues. For the year ended
December 31, 2006, Cargill International SA, Mitsui O.S.K.
Lines, Ltd., American Bulk Transport, Inc. and COSCO Bulk
Carrier Co., Ltd. accounted for 42.9% (for two charters), 25.0%,
10.2% and 10.1%, respectively, of our revenue. We believe that
the combination of the long-term nature of our charters (which
provide for the receipt of a fixed fee for the life of the
charter) and our management agreement with Navios ShipManagement
(which provides for a fixed management fee until
November 16, 2009) will provide us with a strong base
of stable cash flows.
Our revenues are driven by the number of vessels in the fleet,
the number of days during which the vessels operate and our
charter hire rates, which, in turn, are affected by a number of
factors, including:
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the duration of the charters;
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the level of spot and long-term market rates at the time of
charter;
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decisions relating to vessel acquisitions and disposals;
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the amount of time spent positioning vessels;
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the amount of time that vessels spend undergoing repairs and
upgrades in drydock;
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the age, condition and specifications of the vessels; and
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the aggregate level of supply and demand in the drybulk shipping
industry.
|
Time charters are available for varying periods, ranging from a
single trip (spot charter) to long-term which may be many years.
In general, a long-term time charter assures the vessel owner of
a consistent stream of revenue. Operating the vessel in the spot
market affords the owner greater spot market opportunity, which
may result in high rates when vessels are in high demand or low
rates when vessel availability exceeds demand. We intend to
operate our vessels in the long-term charter market. Vessel
charter rates are affected by world economics, international
events, weather conditions, strikes, governmental policies,
supply and demand and many other factors that might be beyond
our control.
Upon delivery of Navios TBN I in June 2009, our ten vessels will
be chartered to seven different customers. We could lose a
customer or the benefits of a charter if:
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the customer fails to make charter payments because of its
financial inability, disagreements with us or otherwise;
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the customer exercises certain rights to terminate the charter
the vessel;
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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
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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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51
If we lose a charter, we may be unable to re-deploy the related
vessel on terms as favorable to us due to the long-term nature
of most charters and the cyclical nature of the industry or we
may be forced to charter the vessel on the spot market at then
market rates which may be less favorable that the charter that
has been terminated. However, we believe that if any one of our
current charters were terminated, we could recharter the vessel
in an expeditious manner at a favorable rate, based on current
conditions in the drybulk carrier market. The loss of any of our
customers, time charters or vessels, or a decline in payments
under our charters, could have a material adverse effect on our
business, results of operations and financial condition and our
ability to make cash distributions in the event we are unable to
replace such customer, time charter or vessel.
Under some of our time charters, either party may terminate the
charter contract in the event of war in specified countries or
in locations that would significantly disrupt the free trade of
the vessel. Some of the time charters covering our vessels
require us to return to the charterer, upon the loss of the
vessel, all advances paid by the charterer but not earned by us.
We have insured each of our charter-out contracts, for the
length of the entire agreement, through a double AA+
rated European Union governmental agency. If the charterer goes
into payment default under the terms of the policy the insurance
company will reimburse the losses for the remaining term of the
charter-out contract.
Vessel
Operations
Under our charters, our vessel manager is generally responsible
for commercial, technical, health and safety and other
management services related to the vessels operation, and
the charterer is responsible for bunkering and substantially all
of the vessel voyage costs, including canal tolls and port
charges.
Under the management agreement we entered into with Navios
ShipManagement, Navios ShipManagement bears all of our vessel
operating expenses in exchange for the payment of fees as
described below. Under this agreement, Navios ShipManagement is
responsible for commercial, technical, health and safety and
other management services related to the vessels
operation, including chartering, technical support and
maintenance, insurance and costs associated with special surveys
and related drydockings. The initial term of the management
agreement is five years until November 2012, and we pay Navios
ShipManagement a fixed daily fee of $4,000 per owned Panamax
vessel and $5,000 per owned Capesize vessel November 16,
2009. This fixed daily fee covers all of our vessel operating
expenses, other than certain extraordinary costs. Extraordinary
costs and expenses include fees and costs resulting from:
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time spent on insurance and salvage claims;
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time spent vetting and pre-vetting the vessels by any charterers
in excess of 10 days per vessel per year;
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the deductible of any insurance claims relating to the vessels
or for any claims that are within such deductible range;
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the significant increase in insurance premiums which are due to
factors such as acts of God outside the control of
Navios ShipManagement;
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repairs, refurbishment or modifications, including those not
covered by the guarantee of the shipbuilder or by the insurance
covering the vessels, resulting from maritime accidents,
collisions, other accidental damage or unforeseen events (except
to the extent that such accidents, collisions, damage or events
are due to the fraud, gross negligence or willful misconduct of
Navios ShipManagement, its employees or its agents, unless and
to the extent otherwise covered by insurance);
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expenses imposed due to any improvement, upgrade or modification
to, structural changes with respect to the installation of new
equipment aboard any vessel that results from a change in, an
introduction of new, or a change in the interpretation of,
applicable laws, at the recommendation of the classification
society for that vessel or otherwise;
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52
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costs associated with increases in crew employment expenses
resulting from an introduction of new, or a change in the
interpretation of, applicable laws or resulting from the early
termination of the charter of any vessel;
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any taxes, dues or fines imposed on the vessels or Navios
ShipManagement due to the operation of the vessels;
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expenses incurred in connection with the sale or acquisition of
a vessel such as inspections and technical assistance; and
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any similar costs, liabilities and expenses that were not
reasonably contemplated by us and Navios ShipManagement as being
encompassed by or a component of the fixed daily fees at the
time the fixed daily fees were determined.
|
Payment of any extraordinary fees or expenses to Navios
ShipManagement could significantly increase our vessel operating
expenses and impact our results of operations.
During the remaining three years of the term of the management
agreement, we expect that we will reimburse Navios
ShipManagement for all of the actual operating costs and
expenses it incurs in connection with the management of our
fleet.
Administrative
Services
Under the administrative services agreement we entered into with
Navios ShipManagement, we reimburse Navios ShipManagement for
reasonable costs and expenses incurred in connection with the
provision of the services under this agreement within
15 days after Navios ShipManagement submits to us an
invoice for such costs and expenses, together with any
supporting detail that may be reasonably required. Under this
agreement until November 2012, Navios ShipManagement provides
significant administrative, financial and other support services
to us.
Trends
and Factors Affecting Our Future Results of Operations
We believe the principal factors that will affect our future
results of operations are the economic, regulatory, political
and governmental conditions that affect the shipping industry
generally and that affect conditions in countries and markets in
which our vessels engage in business. Other key factors that
will be fundamental to our business, future financial condition
and results of operations include:
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the demand for seaborne transportation services;
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the successful implementation of our fleet expansion strategy,
including taking delivery of Navios TBN I and Navios TBN II (if
our option is exercised) on or about their scheduled delivery
dates and the terms of the financing thereof;
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the ability of Navios Holdings commercial and chartering
operations to successfully employ our vessels at economically
attractive rates, particularly as our fleet expands and our
charters expire;
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the effective and efficient technical management of our vessels;
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Navios Holdings ability to satisfy technical, health,
safety and compliance standards of major commodity
traders; and
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the strength of and growth in the number of our customer
relationships, especially with major commodity traders.
|
In addition to the factors discussed above, we believe certain
specific factors will impact our combined and consolidated
results of operations. These factors include:
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the charter hire earned by our vessels under our charters;
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our access to capital required to acquire additional vessels
and/or to
implement our business strategy;
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53
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our ability to sell vessels at prices we deem satisfactory;
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our level of debt and the related interest expense and
amortization of principal; and
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the level of any distribution on our common units.
|
Please read Risk Factors for a discussion of certain
risks inherent in our business.
A. Operating
results
Overview
Our historical results of operations and cash flows prior to the
IPO are not indicative of results of operations and cash flows
to be expected from any future period, principally for the
following reasons:
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Different Fleet Size. Our historical financial
statements for 2006, 2007 and 2008 reflect the results of
operations of five seven and nine vessels, respectively.
Following the delivery of Navios TBN I, which is scheduled
to be delivered in June 2009, the size of our fleet will
increase to ten vessels. We also have an option to purchase
Navios TBN II in October 2009.
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Different Structure of Operating and General and
Administrative Expenses. Our historical operating
expenses represented actual costs incurred by the vessel-owning
subsidiaries and Navios ShipManagement in the operation of the
vessels. Pursuant to the management agreement that we entered
into with Navios ShipManagement upon the closing of the IPO, the
daily operating expense rate is $4,000 per owned Panamax vessel
and $5,000 per owned Capesize vessel and is fixed until
November 16, 2009. During the remaining three years of the
term of the management agreement, we expect that we will
reimburse Navios ShipManagement for all of the actual operating
costs and expenses it incurs in connection with the management
of our fleet. Under the administrative services agreement that
we entered into with Navios ShipManagement upon the closing of
the IPO, Navios ShipManagement provides significant
administrative, financial and other support services to us. We
reimburse Navios ShipManagement for reasonable costs and
expenses incurred in connection with the provision of the
services under this agreement, including certain general and
administrative expenses that we incur as a publicly traded
limited partnership that we did not previously incur prior to
the IPO.
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Different Financing Arrangements. Our
historical financing and derivative arrangements prior to the
IPO are not representative of the arrangements we entered into
to finance the acquisition of our initial fleet from Navios
Holdings in connection with the closing of the IPO. For example,
we entered into a credit facility in connection with the IPO. In
addition, we have not entered into forward freight arrangements
and we do not expect to do so in the future.
|
54
Year
Ended December 31, 2008 Compared to the Year Ended
December 31, 2007
The following table presents consolidated revenue and expense
information for the years ended December 31, 2008 and 2007.
This information was derived from the audited consolidated
revenue and expense accounts of Navios Partners for the
respective periods.
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December 31,
|
|
|
December 31,
|
|
|
|
2007
|
|
|
2008
|
|
|
Time charter and voyage revenues
|
|
$
|
50,352
|
|
|
$
|
75,082
|
|
Time charter and voyage expenses
|
|
|
(8,352
|
)
|
|
|
(11,598
|
)
|
Direct vessel expenses
|
|
|
(5,608
|
)
|
|
|
(578
|
)
|
Management fees
|
|
|
(920
|
)
|
|
|
(9,275
|
)
|
General and administrative expenses
|
|
|
(1,419
|
)
|
|
|
(3,798
|
)
|
Depreciation and amortization
|
|
|
(9,375
|
)
|
|
|
(11,865
|
)
|
Interest expense and finance cost, net
|
|
|
(5,522
|
)
|
|
|
(9,216
|
)
|
Interest income
|
|
|
|
|
|
|
301
|
|
Other income
|
|
|
93
|
|
|
|
23
|
|
Other expense
|
|
|
(226
|
)
|
|
|
(318
|
)
|
|
|
|
|
|
|
|
|
|
Income before income taxes
|
|
|
19,023
|
|
|
|
28,758
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|
Deferred income tax
|
|
|
485
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
19,508
|
|
|
$
|
28,758
|
|
|
|
|
|
|
|
|
|
|
Time Charter and Voyage Revenues. Time
charter and voyage revenues are comprised of the charter hire
received from unaffiliated third-party customers. Time charter
revenues amounted to approximately $75.1 million for year
ended December 31, 2008 compared to $50.4 million for
the year ended 2007. The increase was mainly attributable to the
delivery of Navios Prosperity on June 19, 2007, as well as
the acquisition of Fantastiks (as part of the acquisition of
Kleimar by Navios Holdings) in February 2007, both of which were
fully operated in 2008 along with the delivery of Navios
Aldebaran on March 17, 2008 and the acquisition of Navios
Aurora I on July 1, 2008.
Time Charter and Voyage Expenses. Time
charter and voyage expenses amounted to $11.6 million for
the year ended December 31, 2008 compared to
$8.4 million for the year ended December 31, 2007. The
increase was mainly attributable to the deliveries of the
following chartered-in vessels: of Navios Prosperity on
June 19, 2007, of Fantastiks (as part of the acquisition of
Kleimar by Navios Holdings) in February and of Navios Aldebaran
on March 17, 2008. This increase was mitigated by the
acquisition of Navios Fantastiks from Navios Holdings into the
owned fleet on May 2, 2008, from chartered in vessel.
Direct Vessel Expenses. Direct vessel
expenses represent the vessels operating expenses. For the
year ended December 31, 2008 direct vessel expenses
amounted to $0.6 million and comprised of the amortization
of drydock and special survey costs. Starting on
November 16, 2007, the vessels operating expenses are
managed by the Manager. For the year ended December 31,
2007, direct vessel expenses amounted to $5.6 million and
were comprised of crewing and related costs (approximately
40.7%), stores, provisions, lubricants and chemicals
(approximately 24.6%), insurance (approximately 13.4%), spares,
repairs, maintenance and other (approximately 21.3%).
Management Fees. Starting on
November 16, 2007, in connection with the management
agreement entered into by Navios Partners, the Manager provides
all of Navios Partners owned vessels with commercial and
technical management services for a daily fee of $4,000 per
owned Panamax vessel and $5,000 per owned Capesize vessel until
November 16, 2009. Total management fees for the years
ended December 31, 2008 and 2007 amounted to
$9.3 million and $0.9 million, respectively.
General and Administrative
expenses. Total general and administrative
fees for the year ended December 31, 2008 amounted to
$3.8 million compared to $1.4 million for the year
ended December 31, 2007. The Manager charged for the period
prior to the IPO a fixed monthly fee of $15,000 in 2007 per
vessel
55
in exchange of a wide range of services such as chartering,
technical support and maintenance, insurance, consulting,
financial and accounting services.
Subsequent to the IPO and pursuant to the Administrative
Services Agreement, the Manager provides administrative services
and is reimbursed for reasonable costs and expenses incurred in
connection with the provision of these services. For the years
ended December 31, 2008 and 2007, the expenses charged by
the Manager for administrative services were $1.5 million
and $0.2 million, respectively. The remaining balances of
$2.3 million and $1.2 million of general and
administrative expenses for the years ended December 31,
2008 and 2007 related to legal and professional fees, as well as
audit fees.
Depreciation and
amortization. Depreciation and amortization
amounted to $11.9 million for the year ended
December 31, 2008 compared to $9.4 million for the
year ended December 31, 2007. The main reason for this
increase of $2.5 million was: (a) the increase in
depreciation expense of $4.2 million due to the
acquisitions of Navios Fantastiks on May 2, 2008 (which
until then was part of the chartered in fleet of Navios
Partners) and Navios Aurora on July 1, 2008;
(b) amortization income of $1.4 million related to
backlog liabilities which were fully amortized during the year
ended December 31, 2007 and therefore, there is no such
income from amortization of backlog liabilities in the year
ended December 31, 2008. The above increase was mitigated
by $3.1 million decrease in amortization expense relating
to the $51.1 million of intangible assets and liabilities
(favorable and unfavorable leases) recognized on the acquisition
of Navios Fantastiks (chartered in vessel until May 2, 2008
and then became an owned vessel) as part of the acquisition of
Kleimar by Navios Holdings in February 2007. Depreciation of
vessels is calculated using an estimated useful life of
25 years from the date the vessel was originally delivered
from the shipyard. Intangible assets are amortized over the
contract periods which range from four to ten years.
Interest Expense and Finance Cost,
Net. Interest expense and finance cost, net
amounted to $9.2 million for the year ended
December 31, 2008 compared to $5.5 million for the
year ended December 31, 2007. Interest expense relating to
the credit facilities for the purchase of our vessels amounted
to $9.0 million for the year ended December 31, 2008
compared to $5.3 million for the year ended
December 31, 2007 ($1.2 million was the interest for
the period from the drawdown date on November 16, 2007 to
December 31, 2007), while amortization of deferred finance
fees amounted to $0.2 million for the years ended
December 31, 2008 and 2007, respectively. The increase in
interest expense was mainly attributable to the increase in
average outstanding loan balance from $88.0 million in 2007
to $206.0 million in 2008. As at December 31, 2007,
the outstanding loan balance under our credit facility was
$165.0 million and $235.0 million as at
December 31, 2008.
Income taxes. Income taxes amounted to
$0 for the year ended December 31, 2008 and
$0.5 million for the year ended December 31, 2007. The
amount in 2007 was related to the vessel Navios Fantastiks which
was part of Navios Holdings acquisition of Kleimar in
February 2007.
Net Income. Net income for year ended
December 31, 2008 amounted to $28.8 million compared
to $19.5 million for the year ended December 31, 2007.
The increase in net income of $9.3 million was due to the
factors discussed above.
Seasonality. Because Navios
Partners vessels operate under long-term charters, the
results of operations are not generally subject to the effect of
seasonable variations in demand.
56
Year
Ended December 31, 2007 Compared to the Year Ended
December 31, 2006
The following table presents consolidated revenue and expense
information for the years ended December 31, 2007 and 2006.
This information was derived from the audited consolidated
revenue and expense accounts of Navios Partners for the
respective periods.
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
December 31,
|
|
|
|
2006
|
|
|
2007
|
|
|
Time charter and voyage revenues
|
|
$
|
31,764
|
|
|
$
|
50,352
|
|
Loss on Forward Freight Agreements
|
|
|
(2,923
|
)
|
|
|
|
|
Time charter and voyage expenses
|
|
|
(1,344
|
)
|
|
|
(8,352
|
)
|
Direct vessel expenses
|
|
|
(5,626
|
)
|
|
|
(5,608
|
)
|
Management fees
|
|
|
|
|
|
|
(920
|
)
|
General and administrative expenses
|
|
|
(698
|
)
|
|
|
(1,419
|
)
|
Depreciation and amortization
|
|
|
(8,250
|
)
|
|
|
(9,375
|
)
|
Interest expense and finance cost, net
|
|
|
(6,286
|
)
|
|
|
(5,522
|
)
|
Other income
|
|
|
61
|
|
|
|
93
|
|
Other expense
|
|
|
(74
|
)
|
|
|
(226
|
)
|
|
|
|
|
|
|
|
|
|
Income before income taxes
|
|
|
6,624
|
|
|
|
19,023
|
|
Deferred income tax
|
|
|
|
|
|
|
485
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
|
|
|
$
|
19,508
|
|
|
|
|
|
|
|
|
|
|
Time Charter and Voyage Revenues. Time
charter and voyage revenues are comprised of the charter hire
received from unaffiliated third-party customers. Time charter
revenues amounted to approximately $50.4 million for year
ended December 31, 2007 compared to $31.8 million for
the year ended 2006. The increase was mainly attributable to the
delivery of Navios Prosperity on June 19, 2007, as well as
the acquisition of Navios Fantastiks (as part of the acquisition
of Kleimar by Navios Holdings) in February 2007.
Loss on Forward Freight
Agreements. During the year ended
December 31, 2006, certain Forward Freight Agreements, or
FFAs, relating to two of our vessels qualified for hedge
accounting treatment. The changes in fair values of the
effective portion representing unrealized gain or losses were
recorded under Accumulated Other Comprehensive
Income/(Loss) in owners net investment, while the
ineffective portion, was included in the statement of operations
under Loss on Forward Freight Agreements. As at
December 31, 2006, no FFAs existed and the realized loss of
ineffective portion which amounted to $2.9 million was
recorded in the statement of operation under Loss on Forward
Freight Agreements whereas the effective portion which amounted
to $2.6 million was transferred from Accumulated
Other Comprehensive Income/(Loss) in owners net
investment to revenue in the statement of operations.
FFAs no longer existed during fiscal year 2007 and Navios
Partners is not expected to enter into any FFAs in the future.
Time Charter and Voyage Expenses. Time
charter and voyage expenses amounted to $8.4 million for
the year ended December 31, 2007 compared to
$1.3 million for the year ended December 31, 2006. The
increase was mainly attributable to the delivery of Navios
Prosperity on June 19, 2007, as well as the acquisition of
Fantastiks (as part of the acquisition of Kleimar by Navios
Holdings) in February 2007.
Direct Vessel Expenses. Direct vessel
expenses represent the vessels operating expenses. For the
year ended December 31, 2007, direct vessel expenses
amounted to $5.6 million and were comprised of crewing and
related costs (approximately 40.7%), stores, provisions,
lubricants and chemicals (approximately 24.6%), insurance
(approximately 13.4%), spares, repairs, maintenance and other
(approximately 21.3%). For the year ended December 31,
2006, direct vessel expenses amounted to $5.6 million and
were comprised of crewing and related costs (approximately
42.8%), stores, provisions, lubricants and chemicals
(approximately 24.2%), insurance (approximately 14.3%), spares,
repairs, maintenance and other (approximately 18.7%).
57
Management Fees. Under the management
agreement that Navios Partners entered into in connection with
the closing of the IPO on November 16, 2007, the Manager
provides all of Navios Partners owned vessels with
commercial and technical management services for a daily fee of
$4,000 per owned Panamax vessel and $5,000 per owned Capesize
vessel until November 2009. Total management fees for the period
from November 16, 2007 to December 31, 2007 was
$920,000.
General and Administrative
expenses. Total general and administrative
fees for the year ended December 31, 2007 amounted to
$1.4 million compared to $698,000 for the year ended
December 31, 2006. The manager charged for the period prior
to the IPO a fixed monthly fee of $15,000 in 2007 and $16,667 in
2006 per vessel in exchange of a wide range of services such as
chartering, technical support and maintenance, insurance,
consulting, financial and accounting services. In spite of the
decrease of the fixed monthly fee, general and administrative
expenses increased due to the increase in the number of managed
vessels from 5 in 2006 to 7 in 2007 (delivery of Navios
Prosperity on June 19, 2007 and acquisition of Fantastiks
as part of the acquisition of Kleimar by Navios Holdings in
February 2007).
Subsequent to the IPO and pursuant to the Administrative
Services Agreement the Manager provides administrative services
and is reimbursed for reasonable costs and expenses incurred in
connection with the provision of these services. For the period
from November 16, 2007 to December 31, 2007 the fee
charged by the Manager for administrative services was $161,000.
Depreciation and
amortization. Depreciation and amortization
amounted to $9.4 million for the year ended
December 31, 2007 compared to $8.3 million for the
year ended December 31, 2006. The main reason for the
increase was the increase in amortization expense of
$2.4 million, relating to $51.1 million of intangible
assets and liabilities (favorable and unfavorable leases)
recognized on the acquisition of Fantastiks, as part of the
acquisition of Kleimar by Navios Holdings in February 2007. This
increase was mitigated by the amortization of backlog assets and
liabilities which decreased by $1.6 million from ($216,000)
in the year ended December 31, 2006 to $1.4 million in
the year ended December 31, 2007. Depreciation of vessels
is calculated using an estimated useful life of 25 years
from the date the vessel was originally delivered from the
shipyard. Intangible assets are amortized over the contract
periods which range from four to 10 years.
Interest Expense and Finance Cost,
Net. Interest expense and finance cost, net
amounted to $5.5 million for the year ended
December 31, 2007 compared to $6.3 million for the
year ended December 31, 2006. Interest expense relating to
the credit facilities for the purchase of our vessels amounted
to $5.3 million for the year ended December 31, 2007
compared to $6.2 million for the year ended
December 31, 2006, while amortization of deferred finance
fees amounted to $0.2 million for the year ended
December 31, 2007 and $0.1 million for the year ended
December 31, 2006. The decrease in interest expense is
mainly attributable to the decrease in average outstanding loan
balance from $93 million in 2006 to $88 million in
2007. The loan amount as of November 15, 2007 which
amounted to $75.5 million was not assumed by Navios
Partners from Navios Holdings as it entered into a credit
facility prior to the closing of the IPO. As at
December 31, 2007, the outstanding loan balance under the
credit facility was $165.0 million and the interest for the
period from November 16, 2007 (drawdown date) to
December 31, 2007 was $1.2 million.
Income taxes. Income taxes amounted to
$0.5 million for the year ended December 31, 2007
whereas there was no income tax for the year ended
December 31, 2006. This amount in 2007 is related to vessel
Fantastiks which was part of Navios Holdings acquisition
of Kleimar in February 2007.
Net Income. Net income for year ended
December 31, 2007 amounted to $19.5 million compared
to $6.6 million for the year ended December 31, 2006.
The increase in net income of $12.9 million is due to the
factors discussed above, as well as the increase in deferred
income tax by $0.5 million related to Fantastiks, which was
part of Navios Holdings acquisition of Kleimar in February
2007.
Seasonality. Because Navios
Partners vessels operate under long-term charters, the
results of operations are not generally subject to the effect of
seasonable variations in demand.
58
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B.
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Liquidity
and Capital Resources
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Old
Credit Facilities
On December 21, 2005, Navios Holdings revised the terms of
its credit facility with HSH Nordbank AG. The credit facility
entered into by Navios Holdings on December 21, 2005 was
divided into tranches, each of them having a specific use. The
tranches relating to the acquisition of Navios Libra II, Navios
Alegria, Navios Felicity, Navios Gemini S and Navios Galaxy I
(Navios Partners vessels) amounted to $102.0 million.
The interest rate under the facility is LIBOR, plus the costs of
complying with any applicable regulatory requirements and a
margin of 1.5% per annum. In February 2007, Navios Holdings
entered into a new secured loan facility with HSH Nordbank and
Commerzbank AG maturing on October 31, 2014. The new
facility was composed of a $280.0 million term loan
facility and a $120.0 million reducing revolver facility.
The term loan facility has partially been utilized to repay the
remaining balance of the previous HSH Nordbank facility. The
interest rate of the new facility is LIBOR plus a spread ranging
from 65 to 125 basis points as provided in the agreement.
Upon completion of the IPO, Navios Holdings assumed the debt
relating to the vessels acquired by us at the time of the IPO.
Revolving
Credit Facility
Upon the closing of the IPO, we entered into a new
$260.0 million revolving credit facility with DVB Bank AG
and Commerzbank AG. We borrowed $165.0 million upon the
closing of the IPO. We used $160.0 million of such
borrowings to fund a portion of the purchase price of the
capital stock of the subsidiaries that owned or had rights to
the nine vessels in our initial fleet. The balance of the drawn
amount was used as working capital. On June 25, 2008, this
credit facility was amended, in part, to increase the available
borrowings by $35.0 million, in anticipation of purchasing
Navios Aurora, thereby increasing the total facility to
$295.0 million On May 2, 2008, Navios Partners
borrowed $35.0 million to finance the acquisition of the
vessel Navios Fantastiks and an additional $35.0 million to
finance the acquisition of the vessel Navios Aurora I on
July 1, 2008. Navios Partners intends to borrow an
additional $60.0 million to partially finance the purchase
of the capital stock of the Navios Holdings subsidiary that will
own Navios TBN I upon its delivery which is expected to occur in
June 2009. Amounts that can be borrowed under the facility will
be reduced by $60.0 million if Navios TBN I is not
delivered.
In January 2009, Navios Partners amended further the terms of
its existing credit facility. The amendment is effective until
January 15, 2010 and provides for (a) repayment of
$40.0 million which took place in February 2009,
(b) maintaining cash reserves balance into a pledged
account with the agent bank as follows: $2.5 million on
January 31, 2009; $5.0 million on March 31, 2009;
$7.5 million on June 30, 2009, $10.0 million on
September 30, 2009; $12.5 million on December 31,
2009 and (c) a margin of 2.25%. Further, the covenants were
amended by (a) reducing the minimum net worth to
$100.0 million, (b) reducing the VMC (Value
Maintenance Covenant) to be at 100% using charter free values,
(c) the minimum leverage covenant to be calculated using
charter inclusive adjusted values until December 31, 2009
and (d) a new VMC was introduced based on charter attached
valuations to be at 143%.
Amounts drawn under this credit facility are secured by first
preferred mortgages on Navios Partners vessels and other
collateral and are guaranteed by each vessel-owning subsidiary.
The revolving credit facility contains a number of restrictive
covenants that prohibit Navios Partners from, among other
things: incurring or guaranteeing indebtedness; entering into
affiliate transactions; charging, pledging or encumbering the
vessels; changing the flag, class, management or ownership of
Navios Partners vessels; changing the commercial and
technical management of Navios Partners vessels; selling
or changing the ownership or control of Navios Partners
vessels; and subordinating the obligations under the credit
facility to any general and administrative costs relating to the
vessels, including the fixed daily fee payable under the
management agreement.
The credit facility also requires us to comply with the ISM Code
and ISPS Code and to maintain valid safety management
certificates and documents of compliance at all times.
59
In addition, our revolving credit facility, as amended also
requires us to:
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maintain minimum free consolidated liquidity (which may be in
the form of undrawn commitments under the revolving credit
facility) which as per the amended terms is at least
$13.0 million for the year ended December 31, 2008
(increasing by $9.0 million per year until it reaches
$40.0 million, which level is required to be maintained
thereafter);
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maintain a ratio of EBITDA (as defined in our credit facility)
to interest expense of at least 2.00 to 1.00; and
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maintain a ratio of total liabilities to total assets (as
defined in our credit facility) of less than 0.75 to 1.00.
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In addition, Navios Holdings is required to own at least 30% of
us and to own 100% of our general partner. The credit facility
prohibits us from paying distributions to our unitholders or
making new investments if, before and after giving effect to
such distribution or investment we are not in compliance with
the financial covenants described above or upon the occurrence
of an event of default. Events of default under our credit
facility include:
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failure to pay any principal, interest fees, expenses or other
amounts when due;
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breach of certain undertakings, negative covenants and financial
covenants contained in the credit facility, any related security
document or guarantee, including failure to maintain
unencumbered title to any of the vessel-owning subsidiaries or
any of the assets of the vessel-owning subsidiaries and failure
to maintain proper insurance and in some cases subject to
certain grace and due periods;
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default under other indebtedness;
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any representation, warranty or statement made by us in the
credit facility or any drawdown notice thereunder or related
security document or guarantee is untrue or misleading when made;
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any of our or our subsidiaries assets are subject to any
form of execution, attachment, arrest, sequestration or distress
in that is not discharged within a specified period of time;
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an event of insolvency or bankruptcy;
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material adverse change in the financial position or prospects
of us or our general partner;
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unlawfulness, non-effectiveness or repudiation of any material
provision of our credit facility, of any of the related finance
and guarantee documents;
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failure of effectiveness of security documents or
guarantee; and
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instability affecting a country where the vessels are flagged.
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At December 31, 2008, Navios Partners was in compliance
with the financial covenants as revised under its January 2009
amended revolving loan facility. However, if Navios Partners was
required to use the original loan covenants on December 31,
2008 to test compliance, Navios Partners may not have been in
compliance with certain covenants using charter free valuations.
Based on the January 2009 amended credit facility agreement,
$40.0 million was paid on February 9, 2009. The
repayment of the remaining balance of loan facility starts no
earlier than February 2012 and is subject to changes in
repayment amounts and dates depending on various factors such as
the future borrowings under the agreement.
60
Purchase
of Newbuilding
The table below summarizes certain information with respect to
the Capesize newbuilding Navios TBN I that we have agreed to
purchase from a subsidiary of Navios Holdings in June 2009 for a
purchase price of $130.0 million:
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Capacity
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Charter
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Charter-Out
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Vessel
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Expected delivery
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(Dwt)
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Ownership
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Expiration Date
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Rate
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Navios TBN I
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June 2009
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180,000
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100
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%
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June 2014
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$
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47,400
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The purchase price of the Navios TBN I is $130.0 million,
which we intend to fund primarily from borrowings under our
credit facility and the issuance of additional common units or
other equity securities. Our obligation to purchase Navios TBN I
is not conditional upon our ability to obtain financing for such
purchase.
In addition, if we exercise the option to acquire Navios TBN II
for $135.0 million, we will need to finance such purchase
as well. Such financing may be from borrowings or from the
issuance of additional common units on or before the anticipated
delivery date in October 2009. Our right to purchase Navios TBN
II is exercisable in our sole discretion and has not been
exercised.
Liquidity
and Cash Needs
Prior to the IPO, the vessel-owning subsidiaries that owned or
had rights to the vessels in our fleet did not have any cash or
source of liquidity, as they were part of a larger entity with
its own sources of liquidity. At the closing of the IPO we had
total liquidity, including cash and undrawn long-term borrowings
of approximately $99.4 million. In 2008, we borrowed
$35.0 million under our credit facility in order to finance
the purchase of Navios Fantastiks on May 2, 2008 and
another $35.0 million under our credit facility in order to
finance the purchase of Navios Aurora I on July 1, 2008. In
addition, we intend to borrow $60.0 million under our
credit facility to partially fund the purchase of Navios TBN I
in June 2009. We may need to increase the size of our revolving
credit facility in order to fund the remainder of the purchase
price of Navios TBN I and to fund the purchase price of Navios
TBN II, which we also intend to partially fund with equity.
There can be no assurance we can obtain such additional
financing. Because Navios Holdings is required to own at least
30% of us under the terms of our credit facility, we may be
limited in our ability to obtain necessary funding through
additional equity offerings.
After the issuance of 3,131,415 common units and 63,906 general
partner units in relation to the acquisition of Navios Aurora I
from Navios Holdings on July 1, 2008, the amount of
available cash we need to pay the minimum quarterly
distributions for four quarters on our common units,
subordinated units and the 2.0% general partner interest is
$30.4 million. During the year ended December 31, 2008
the aggregate amount of cash distribution paid was
$24.6 million.
On February 11, 2009 we paid a cash distribution for the
fourth quarter of 2008 of $0.40 per unit, or $8.7 million
in total, to unitholders of record on February 5, 2009.
In addition to distributions on our units, our primary
short-term liquidity needs are to fund general working capital
requirements, drydocking expenditures, cash reserve requirements
as per our January 2009 amended credit facility agreement and
debt repayment, while our long-term liquidity needs primarily
relate to expansion and investment capital expenditures and
other maintenance capital expenditures and debt repayment.
Expansion capital expenditures are primarily for the purchase or
construction of vessels to the extent the expenditures increase
the operating capacity of or revenue generated by our fleet,
while maintenance capital expenditures primarily consist of
drydocking expenditures and expenditures to replace vessels in
order to maintain the operating capacity of or revenue generated
by our fleet. Investment capital expenditures are those capital
expenditures that are neither maintenance capital expenditures
nor expansion capital expenditures.
We anticipate that our primary sources of funds for our
short-term liquidity needs will be cash flows from operations.
We believe that cash flows from operations will be sufficient to
meet our existing short-term liquidity needs for at least the
next 12 months. In addition, we have filed a shelf
registration statement on
61
January 29, 2009 under which we may sell any combination of
securities (debt or equity) for up to a total of
$500.0 million
Generally, our long-term sources of funds will be from cash from
operations, long-term bank borrowings and other debt or equity
financings. Because we distribute all of our available cash, we
expect that we will rely upon external financing sources,
including bank borrowings and the issuance of debt and equity
securities, to fund acquisitions and expansion and investment
capital expenditures, including opportunities we may pursue
under the omnibus agreement. We cannot assure you that we will
be able to raise the size of our credit facility or obtaining
additional funds on favorable terms.
Cash
Flows for the Year Ended December 31, 2008 Compared to the
Year Ended December 31, 2007
The following table presents cash flow information for the years
ended December 31, 2008 and 2007. This information was
derived from the audited consolidated statement of cash flows of
Navios Partners for the respective periods.
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Year Ended
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Year Ended
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December 31,
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December 31,
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2007
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2008
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Net cash provided by operating activities
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$
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10,516
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$
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41,744
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Net cash used in investing activities
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(69,505
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)
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Net cash (used in)/ provided by financing activities
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(421
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46,040
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Change in cash and cash equivalents
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$
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10,095
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$
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18,279
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Cash
provided by operating activities for the year ended
December 31, 2008 as compared to the year ended
December 31, 2007:
Net cash provided by operating activities increased by
$31.2 million to $41.7 million for the year ended
December 31, 2008 as compared to $10.5 million for the
same period in 2007. The increase is analyzed as follows:
The increase resulted from higher net income for the year ended
December 31, 2008, of $28.8 million compared to
$19.5 million for the year ended December 31, 2007 and
other factors as discussed below. In determining net cash
provided by operating activities, net income is adjusted for the
effects of certain
non-cash
items including depreciation and amortization of
$11.9 million and $9.4 million for the years ended
December 31, 2008 and 2007, respectively.
Amounts due to related parties decreased by $2.9 million
from $4.5 million in amounts due to related parties at
December 31, 2007 to $1.5 million in amounts due to
related parties at December 31, 2008. The main reason for
this decrease was the payment of $3.8 million to Navios
Holdings for the deferred acquisition expenses related to the
IPO mitigated by an increase of $0.9 million in the amounts
payable to Navios Holdings for managing our vessels and for
general and administrative expenses charged to us. During the
corresponding period in 2007, amounts due from/(to) related
parties decreased by $10.3 million from $5.8 million
in amounts due from related parties at December 31, 2006 to
$4.5 million in amounts due to related parties at
December 31, 2007. The decrease in amounts due from related
parties is mainly explained by the amount of $3.8 million
acquisition expenses relating to the IPO and $0.9 million
and $0.4 million relating to management fees and general
and administrative expenses respectively. The decrease is also
due to the decrease of $2.3 million relating to the
repayment of long term debt and $0.7 million relating to
the payment of deferred financing fees on the refinancing of
that debt and to $2.2 million decrease of receivables from
management of vessels.
Restricted cash had a zero balance as of December 31, 2008
from $0.8 million as of December 31, 2007. The reason
for the decrease was that the banks no longer obliges us to keep
cash in our retention account as of December 31, 2008 for
the payment of the interest as was previously required under our
loan facility with ISH Nordbank and Commerzbank A.G. in 2007.
62
Accounts receivable decreased by $0.1 million from
$0.4 million at December 31, 2007 to $0.3 million
at December 31, 2008. The primary reason for this decrease
was mainly the receipt of a long outstanding balance from a
charterer. During the corresponding period of 2007, accounts
receivable increased by $0.3 million from $0.1 million
at December 31, 2006 to $0.4 million at
December 31, 2007.
Deferred voyage revenue primarily reflects charter-out amounts
collected on voyages that have not been completed. Deferred
voyage revenue, net of commissions increased by
$2.4 million from $0.2 million at December 31,
2007 to $2.6 million at December 31, 2008. During the
corresponding period of 2007, deferred revenue decreased by
$0.7 million from $0.9 million at December 31,
2006 to $0.2 million at December 31, 2007.
Accounts payable remained almost the same at December 31,
2007 compared to December 31, 2008 at $0.6 respectively.
There was an increase in brokers payables of $0.2 million
offset by an equal decrease in professional and legal fees
payable. During the corresponding period of 2007, accounts
payable decreased by $0.1 million from $0.7 million at
December 31, 2006 to $0.6 million at December 31,
2007.
Prepaid expenses and other current assets increased by
$0.4 million from $0.04 million at December 31,
2007 to $0.4 million at December 31, 2008. This
increase was mainly due to prepaid voyage costs that increased
by $0.3 million at December 31, 2008 from
$0.04 million at December 31, 2007. During the
corresponding period of 2007 prepaid expenses and other current
assets decreased by $1.0 million from $1.0 million at
December 31, 2006 to $0.03 million at
December 31, 2007. This decrease is partially due to the
fact that inventories as at November 16, 2007 which
amounted to $0.5 million were sold at cost to the Manager.
According to the provisions of the Management Agreement,
adjustments and negotiating of settlements of any claim damages
which are recoverable under insurance policies are provided by
the Manager. Navios Partners will pay the deductible of any
insurance claims relating to its vessels or for any claims that
are within such deductible range. At December 31, 2007 the
amount of claims receivable, net, managed and booked by the
Manager amounted to $0.04 million ($0.3 million as at
December 31, 2006). Additionally, prepaid voyage costs
decreased to $0.04 in 2007 million from $0.2 million
in 2006 due to the commercial and technical management services
of the vessels managed by the Manager as per the Management
Agreement.
Accrued expenses increased by $0.2 million from
$1.4 million at December 31, 2007 to $1.6 million
at December 31, 2008. The primary reason for the increase
was an increase in accrued voyage expenses by $0.2 million
and an increase in accrued legal and other professional fees by
$0.3 million mitigated by a decrease in accrued loan
interest by $0.3 million. During the corresponding period
of 2007, accrued expenses increased by $0.8 million mainly
due to the increase in accrued loan interest by
$1.2 million and decrease in accrued voyage expenses and
other accrued expenses by $0.4 million.
As part of the management agreement entered into on
November 16, 2007, the Manager is responsible for
commercial, technical, health and safety and other management
services related to the vessels operation, including
chartering, technical support and maintenance, insurance and
costs associated with special surveys and related drydockings.
The initial term of the management agreement is until November
2012 and Navios Partners pay the Manager a fixed daily fee of
$4,000 per owned Panamax vessel and $5,000 per owned Capesize
vessel until November 16, 2009. This fixed daily fee covers
the entire operating expenses of Navios Partners vessels,
other than certain extraordinary costs. As such, there was no
drydock/special survey related payments for the year ended
December 31, 2008. During the period from January 1 to
November 15, 2007, such management agreement was not yet in
place. As such, the payment related to drydock/special survey
cost which totaled to $0.8 million reduced the net cash
provided by operating activities in 2007.
Cash used
in investing activities for the Year ended December 31,
2008 as compared to the Year ended December 31,
2007:
Net cash used in investing activities of $69.5 million in
the year ended December 31, 2008 was mostly related to the
acquisition of vessels. On May 2, 2008 Navios Partners
purchased the vessel Fantastiks, renamed to Navios Fantastiks,
for an amount of $34.2 million and paid an additional
$0.3 million for capitalized
63
expenses related to the vessels acquisition. On
July 1, 2008 Navios Partners purchased the vessel Navios
Aurora, renamed to Navios Aurora I, for a cash
consideration of $35.0 million.
During the corresponding period of 2007, Navios Partners did not
have any kind of investing activities.
Cash
(used in)/ provided by financing activities for the Year ended
December 31, 2008 as compared to the Year ended
December 31, 2007:
Cash provided by financing activities of $46.0 million for
the year ended December 31, 2008 was due to the following:
(a) additional borrowings of $70.0 million under the
existing credit facility in order to finance the acquisition of
the vessel Navios Fantastiks on May 2, 2008 and Navios
Aurora I on July 1, 2008 netted against payment of debt
issuance cost amounting to $0.3 million; (b) an amount
of $0.9 million Navios Partners received in exchange for
the issuance of 63,906 units to the general partner to
maintain its 2% general partner interest in Navios Partners in
connection with the issuance of 3,131,415 common units to Navios
Holdings as part of the purchase price for Navios Aurora I; and
(c) total cash distribution of $24.6 million paid
during the year ended December 31, 2008.
Cash used in financing activities of $0.4 million for the
year ended December 31, 2007 was the result of cash
contributed to Navios Holding amounting to $353.3 million
for the purchase of the capital stock of Navios Partners
subsidiaries as well as debt repayment amounting to
$2.3 million and payment of debt issuance costs amounting
to $2.5 million. This was offset by the proceeds from the
new loan facility of $165.0 million that Navios Partners
entered into on November 15, 2007 and the actual net
proceeds of $192.7 million derived from the IPO.
Cash
Flows for the Year Ended December 31, 2007 Compared to the
Year Ended December 31, 2006
The following table presents cash flow information for the years
ended December 31, 2007 and 2006. This information was
derived from the audited consolidated statement of cash flows of
Navios Partners for the respective periods.
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Year Ended
|
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Year Ened
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December 31,
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December 31,
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2006
|
|
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2007
|
|
|
Net cash provided by operating activities
|
|
$
|
14,496
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|
|
$
|
10,516
|
|
Net cash used in investing activities
|
|
|
(36,985
|
)
|
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|
|
|
Net cash provided by / (used in) financing activities
|
|
|
22,489
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|
|
|
(421
|
)
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Change in cash and cash equivalents
|
|
$
|
|
|
|
$
|
10,095
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|
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|
|
|
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|
|
Cash
provided by operating activities for the year ended
December 31, 2007 as compared to the year ended
December 31, 2006:
Net cash provided by operating activities decreased by
$4.0 million to $10.5 million for the year ended
December 31, 2007 as compared to $14.5 million for the
same period in 2006. The decrease is analyzed as follows:
Net income for the year ended December 31, 2007, increased
by $12.9 million to $19.5 million in the year ended
December 31, 2007 from $6.6 million for the year ended
December 31, 2006. In determining net cash provided by
operating activities, net income is adjusted for the effects of
certain non-cash items including depreciation and amortization.
Amounts due from/ (to) related parties decreased by
$10.3 million from $5.8 million in amounts due from
related parties at December 31, 2006 to $4.5 million
in amounts due to related parties at December 31, 2007. In
connection with the IPO, Navios Holding subsidiaries
forgave all of the outstanding balances due from related parties
which amounted to $28 million (amount due from related
parties) immediately prior to the consummation of the IPO. This
transaction was reflected as a capital distribution to Navios
Holdings.
64
Restricted cash increased to $0.8 million as at
December 31, 2007 due to the retention account held in
Commerzbank A.G which is required by the new loan facility of
$165 million that Navios Partners entered into prior to the
closing of the IPO. Prior to obtaining the new loan facility
there was no restricted cash.
Accounts receivable increased by $0.3 million from
$0.1 million at December 31, 2006 to $0.4 million
at December 31, 2007. The primary reason for this increase
was an increase in amounts receivable from charterers.
Deferred voyage revenue primarily reflects charter-out amounts
collected on voyages that have not been completed. Deferred
voyage revenue, net of commissions decreased by
$0.7 million from $0.9 million at December 31,
2006 to $0.2 million at December 31, 2007.
Accounts payable decreased by $0.1 million from
$0.7 million at December 31, 2006 to $0.6 million
at December 31, 2007. The primary reason was a decrease in
supplier and insurer payables of $0.4 million offset by an
increase in professional and legal fees payable of
$0.3 million.
Prepaid expenses and other current assets decreased by
$1.0 million from $1.0 million at December 31,
2006 to $0.03 million at December 31, 2007. This
decrease is partially due to the fact that inventories as at
November 16, 2007 which amounted to $0.5 million were
sold at cost to the Manager. According to the provisions of the
Management Agreement, adjustments and negotiating of settlements
of any claim damages which are recoverable under insurance
policies are provided by the Manager. Navios Partners will pay
the deductible of any insurance claims relating to its vessels
or for any claims that are within such deductible range. At
December 31, 2007, the amount of claims receivable, net,
managed and booked by the Manager amounted to $0.04 million
($0.3 million as at December 31, 2006). Additionally,
prepaid voyage costs decreased to $0.04 in 2007 million
from $0.2 million in 2006 due to the commercial and
technical management services of the vessels managed by the
Manager as per the Management Agreement.
Accrued expenses increased by $0.8 million from
$0.6 million at December 31, 2006 to $1.4 million
at December 31, 2007. The primary reason for the increase
was an increase in accrued loan interest by $1.2 million
and an increase in accrued voyage expenses and other accrued
expenses by $0.2 million.
Cash used
in investing activities for the Year ended December 31,
2007 as compared to the Year ended December 31,
2006:
Cash used in investing activities was $37.0 million for the
year ended December 31, 2006 and related to the purchase of
Navios Gemini S on January 5, 2006 and Navios Galaxy I on
March 23, 2006.
There was no investing activity during the year ended
December 31, 2007.
Cash
provided by/ (used in) financing activities for the Year ended
December 31, 2007 as compared to the Year ended
December 31, 2006:
Cash used in financing activities was $0.4 million for the
year ended December 31, 2007, and cash provided by
financing activities was $22.5 million for the year ended
December 31, 2006.
Cash used in financing activities for the year ended
December 31, 2007 was the result of cash contributed to
Navios Holding amounting to $353.3 million for the purchase
of the capital stock of Navios Partners subsidiaries as
well as debt repayment amounting to $2.3 million and
payment of debt issuance costs amounting to $2.5 million.
This was offset by the proceeds from the new loan facility of
$165 million that Navios Partners entered into on
November 15, 2007 and the actual net proceeds of
$192.7 million derived from the IPO.
Cash provided by financing activities for the year ended
December 31, 2006 was the result of the proceeds from
owners contribution amounting to $10.1 million and
the proceeds from loan refinancing amounting to
$37.0 million. This was offset by a repayment of long term
debt and payment of debt issuance costs amounting to
$24.6 million.
65
Reconciliation
of EBITDA to Net Cash from Operating Activities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended
|
|
|
Year Ended
|
|
|
Year Ended
|
|
|
|
December 31,
|
|
|
December 31,
|
|
|
December 31,
|
|
|
|
2006
|
|
|
2007
|
|
|
2008
|
|
|
|
(Expressed in thousands of US Dollars except per unit
data)
|
|
|
Net Cash from Operating Activities
|
|
$
|
14,496
|
|
|
$
|
10,516
|
|
|
$
|
41,744
|
|
Net increase/ (decrease) in operating assets
|
|
|
1,392
|
|
|
|
22,249
|
|
|
|
(533
|
)
|
Net (increase)/ decrease in operating liabilities
|
|
|
(833
|
)
|
|
|
(4,449
|
)
|
|
|
211
|
|
Payments for drydock and special survey costs
|
|
|
590
|
|
|
|
849
|
|
|
|
|
|
Net interest cost
|
|
|
6,286
|
|
|
|
5,522
|
|
|
|
8,915
|
|
Provision for losses on accounts receivable
|
|
|
(211
|
)
|
|
|
|
|
|
|
|
|
Deferred finance charges
|
|
|
(93
|
)
|
|
|
(160
|
)
|
|
|
(221
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EBITDA
|
|
$
|
21,627
|
|
|
$
|
34,527
|
|
|
$
|
50,116
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EBITDA: EBITDA represents net income before
interest, taxes, depreciation and amortization. Navios Partners
uses EBITDA because Navios Partners believes that EBITDA is a
basis upon which liquidity can be assessed and because Navios
Partners believes that EBITDA presents useful information to
investors regarding Navios Partners ability to service
and/or incur
indebtedness. Navios also uses EBITDA (i) in its credit
agreement to measure compliance with covenants such as interest
coverage and debt incurrence; (ii) by prospective and
current lessors as well as potential lenders to evaluate
potential transactions; and (iii) to evaluate and price
potential acquisition candidates.
EBITDA has limitations as an analytical tool, and should not be
considered in isolation or as a substitute for analysis of
Navios results as reported under US GAAP. Some of these
limitations are: (i) EBITDA does not reflect changes in, or
cash requirements for, working capital needs; and
(ii) although depreciation and amortization are non-cash
charges, the assets being depreciated and amortized may have to
be replaced in the future, and EBITDA does not reflect any cash
requirements for such capital expenditures. Because of these
limitations, EBITDA should not be considered as a principal
indicator of Navios Partners performance.
EBITDA increased by $15.6 million to $50.1 million for
the year ended December 31, 2008 as compared to
$34.5 million for the same period of 2007. This
$15.6 million increase in EBITDA was primarily due to:
(a) $24.7 million increase in revenues as a result of
the increased number of vessels in Navios Partners fleet;
and (b) $4.9 million decrease in direct vessel
expenses due to the vessels being managed by the Manager since
the closing of the IPO, for a fixed (until November 16,
2009) daily fee of $4,000 per Panamax and $5,000 per
Capesize vessel. The above overall favorable variance of
$29.6 million was mitigated by: (a) a
$3.2 million increase in time charter and voyage expenses
for the same reason the revenue increased in 2008; (b) a
$8.4 million increase in management fees paid to the
Manager since the closing of the IPO as described above; and
(c) a $2.4 million increase in general and
administrative expenses due to the increase in the number of
owned and chartered in vessels, during 2008 compared
to 2007. The decrease in direct vessel expenses is mainly due to
the acquisition of Navios Fantastiks from Navios Holdings into
Navios Partners owned fleet on May 2, 2008, from
chartered in vessel. Further, as a result of the management
agreement which was effective on November 16, 2007, Navios
Partners no longer bears the cost of operating expenses of owned
fleet as such costs would already be included in the fixed fees
paid to the Manager until November 16, 2009. As such, there
was an increase in management fees but a decrease in direct
vessel expenses for the year ended December 31, 2008 when
compared to the year ended December 31, 2007.
EBITDA increased by $12.9 million to $34.5 million for
the year ended December 31, 2007 as compared to
$21.6 million for the same period of 2006. This
$12.9 million increase in EBITDA was primarily due to:
(a) $18.6 million increase in revenues as a result of
the increased number of vessels in Navios Partners fleet;
and (b) the fact that there were no FFA losses in the year
ended 2007 whereas in the year ended 2006 the FFA losses were
$2.9 million. The above overall favorable variance of
$21.5 million was mitigated by the $7 million increase
in time charter and voyage expenses for the same reason the
revenue increased in 2007. Further charter and voyage expenses
in 2006 represent only three months of such expenses (due to the
acquisition of Navios Galaxy I into the owned fleet in March
2006, from chartered-in vessel). Also,
66
management fees and general and administrative expenses
increased by approximately $1.6 million due to the increase
in the number of owned and chartered in vessels,
during 2007.
Borrowings
Our long-term third party borrowings are reflected in our
combined balance sheet as Long-term debt, net and as
current liabilities in Current portion of long-term
debt. As of December 31, 2007 and December 31,
2008, long-term debt amounted to $165.0 million and
$195.0 million, respectively, and the current portion of
long-term debt amounted to $0 million and
$40.0 million, respectively.
Capital
Expenditures
During the years ended December 31, 2006, 2007 and 2008, we
financed our capital expenditures with cash flow from
operations, the incurrence of bank debt, owners
contribution and equity raising. Capital expenditures for the
years ended December 31, 2006 and 2007 amounted to
$37.0 million and $0 million, respectively, whereas
for the year ended December 31, 2008 expansion capital
expenditures was $69.5 million and related to the
acquisition of Navios Fantastiks on May 2, 2008 and Navios
Aurora I on July 1, 2008.
After the closing of the IPO, maintenance for our vessels and
expenses related to drydocking are included in the fee we pay
our vessel manager under our management agreement. We pay the
Manager a daily fee of $4,000 per owned Panamax vessel and
$5,000 per owned Capesize vessel which is fixed for two years
until November 16, 2009, to provide such commercial and
technical services to the vessels in our fleet. The fee we pay
to the Manager includes any costs associated with scheduled
drydockings during the term of the management agreement.
Replacement
Reserve
Our annual replacement reserve for the year ending
December 31, 2008 was $9.9 million for replacing our
vessels at the end of their useful lives. The amount for
estimated maintenance and replacement capital expenditures
attributable to future vessel replacement is based on the
following assumptions: (i) the lesser of the current market
value per vessel and the current market price to purchase a
newbuilding vessel of similar size and specifications which we
estimate to be $47.5 million for Panamax vessels and
$89.7 million for Capesize vessels; (ii) a
25-year
useful life; and (iii) a 7.0% net investment rate. The
actual cost of replacing the vessels in our fleet will depend on
a number of factors, including prevailing market conditions,
charter hire rates and the availability and cost of financing at
the time of replacement. In January 2009, our board of directors
revised the original assumptions of the replacement reserve and
we estimate that our annual replacement reserve for the year
ending December 31, 2009 will be approximately
$7.8 million for replacing our vessels at the end of their
useful lives. The amount for estimated maintenance and
replacement capital expenditures attributable to future vessel
replacement is based on the following assumptions:
(i) current market price to purchase a five year old vessel
of similar size and specifications which we estimate to be
$28.5 million for Panamax vessels and $45.3 million
for Capesize vessels; (ii) a
25-year
useful life; and (iii) a 5.0% net investment rate. Our
board of directors, with the approval of the conflicts
committee, may determine that one or more of our assumptions
should be revised, which could cause our board of directors to
increase or decrease the amount of estimated maintenance and
replacement capital expenditures. We may elect to finance some
or all or our maintenance and replacement capital expenditures
through the issuance of additional common units which could be
dilutive to existing unitholders.
Possible
Acquisitions of Other Vessels
Although we do not currently have in place any agreements
relating to acquisitions of other vessels (other than the Navios
TBN I, Navios TBN II and our options to purchase Navios
Prosperity and Navios Aldebaran, which we currently charter-in),
we assess potential acquisition opportunities on a regular
basis. Pursuant to our omnibus agreement with Navios Holdings,
we will have the opportunity to purchase additional drybulk
vessels from Navios Holdings when those vessels are fixed under
charters of three or more years upon their expiration of their
current charters or upon completion of their construction.
Subject to the terms of our loan agreements,
67
we could elect to fund any future acquisitions with equity or
debt or cash on hand or a combination of these forms of
consideration. Any debt incurred for this purpose could make us
more leveraged and increase our debt service obligations or
could subject us to additional operational or financial
restrictive covenants.
|
|
C.
|
Research
and development, patents and licenses, etc.
|
Not applicable.
Not applicable.
|
|
E.
|
Off-Balance
Sheet Arrangements
|
We have no off-balance sheet arrangements that have or are
reasonably likely to have, a current or future material effect
on our financial condition, changes in financial condition,
revenues or expenses, results of operations, liquidity, capital
expenditures or capital resources.
|
|
F.
|
Contractual
Obligations and Contingencies
|
The following table summarizes our long-term contractual
obligations as of December 31, 2008:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Payments due by year
|
|
|
|
Less than
|
|
|
|
|
|
|
|
|
More than
|
|
|
|
|
|
|
1 year
|
|
|
1-3 years
|
|
|
3-5 years
|
|
|
5 years
|
|
|
Total
|
|
|
Loan
obligations(1)
|
|
$
|
40,000
|
|
|
|
|
|
|
$
|
55,297
|
|
|
$
|
139,703
|
|
|
$
|
235,000
|
|
Operating lease
obligations(2)
|
|
$
|
9,864
|
|
|
$
|
19,728
|
|
|
$
|
19,755
|
|
|
$
|
7,599
|
|
|
$
|
56,946
|
|
Committed vessel
purchase(3)
|
|
$
|
130,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
130,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total contractual obligations
|
|
$
|
179,864
|
|
|
$
|
19,728
|
|
|
$
|
75,052
|
|
|
$
|
147,302
|
|
|
$
|
421,946
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
Represents amounts drawn under as
per our June 2008 amended credit facility. This amended credit
facility provides borrowing for up to $295.0 million. Such
facility was further amended in January 2009 in which
$40.0 million of loan outstanding was paid on
February 9, 2009. Amounts do not include interest costs
associated with them, which are based on a margin ranging from
1.25% to 2.25%, as amended. The amended facility also requires a
total of $12.5 million in cash reserve balance to be
maintained as December 31, 2009.
|
|
(2)
|
|
These amounts reflect future
minimum commitments under our charter-in contracts, net of
commissions. As of December 31, 2008, we had entered into a
charter-in agreement for two of our vessels (Navios Prosperity
and Navios Aldebaran). Navios Prosperity is chartered-in for
seven years with options to extend for two one-year periods. We
have the option to purchase Navios Prosperity after June 2012 at
a purchase price that is initially 3.8 billion Japanese Yen
($42.1 million based on the exchange rate at
December 31, 2008), declining pro rata by 145 million
Japanese Yen ($1.60 million based on the exchange rate at
December 31, 2008) per calendar year. Navios Aldebaran
is a chartered-in vessel starting from March 17, 2008 for
seven years with options to extend for two one-year periods. The
purchase option price is initially 3.6 billion Japanese Yen
($40.0 million based on the exchange rate at
December 31, 2008) declining pro rata by
150 million Japanese Yen ($1.65 million based on the
exchange rate at December 31, 2008) per calendar year.
|
|
(3)
|
|
Consists of the purchase price of
$130.0 million for Navios TBN I which is anticipated to be
delivered in June 2009 and paid for through additional borrowing
from the existing credit facility and issuance of additional
common units or other equity securities.
|
Critical
Accounting Policies
Our financial statements have been prepared in accordance with
GAAP. The preparation of these financial statements requires us
to make estimates in the application of our accounting policies
based on the best assumptions, judgments and opinions of
management. Following is a discussion of the accounting policies
that involve a higher degree of judgment and the methods of
their application that affect the reported amount of assets and
liabilities, revenues and expenses and related disclosure of
contingent assets and liabilities at the
68
date of our financial statements. Actual results may differ from
these estimates under different assumptions or conditions.
Critical accounting policies are those that reflect significant
judgments or uncertainties, and potentially result in materially
different results under different assumptions and conditions.
For a description of all of our significant accounting policies,
see Note 2 to the Notes to the consolidated financial
statements included elsewhere in this Annual Report.
Impairment
of Long Lived Assets
Vessels, other fixed assets and other long lived assets held and
used by Navios Partners are reviewed periodically for potential
impairment whenever events or changes in circumstances indicate
that the carrying amount of a particular asset may not be fully
recoverable. In accordance with FAS 144, Navios
Partners management evaluates the carrying amounts and
periods over which long-lived assets are depreciated to
determine if events or changes in circumstances have occurred
that would require modification to their carrying values or
useful lives. In evaluating useful lives and carrying values of
long-lived assets, certain indicators of potential impairment,
are reviewed such as undiscounted projected operating cash
flows, vessel sales and purchases, business plans and overall
market conditions. Undiscounted projected net operating cash
flows are determined for each vessel and compared to the vessel
carrying value. In the event that impairment occurred, the fair
value of the related asset is determined and a charge is
recorded to operations calculated by comparing the assets
carrying value to the estimated fair market value. Fair market
value is estimated primarily through the use of third-party
valuations performed on an individual vessel basis.
During the fourth quarter of fiscal 2008, management concluded
that events occurred and circumstances had changes, which may
indicate the existence of potential impairment of Navios
Partners long-lived assets. These indicators included a
significant decline in Navios Partners stock price,
continued deterioration in the spot market, and the related,
impact the current drybulk sector has on managements
expectation for future revenues. As a result, an interim
impairment assessment of long-lived assets was performed. Unless
these indicators improve, it is likely that an interim
impairment analysis will be required to be performed in future
quarters.
The interim testing was a review of the undiscounted projected
net operating cash flows for each vessel compared to the
carrying value. The significant factors and assumptions used in
the undiscounted projected net operating cash flow analysis
included: earnings, dry docking off-hire costs and operating
expenses. Earnings assumptions were based on time charter rates
and forward market rates for future periods where the vessels
are not yet fixed. The assumed charter rates for Panamax ranged
from $13 to $14 per day to $24 per day for Capesize. Operating
expenses per day of $4 and $5 were used for each owned Panamax
vessels and the Capesize vessel, respectively, until November
2009, bearing an annual increase of 5% thereafter. The
assessment concluded that step two of the impairment analysis
was not required and no impairment of vessels existed as of
December 31, 2008, as the undiscounted projected net
operating cash flows exceeded the carrying value. A material
impairment charge would occur, if the management forecasted
charter rates for Panamax vessels fell between $10 to $12 per
day and for Capesize below $13 for the remaining lives of the
vessels.
Although management believes the underlying assumptions
supporting this assessment are reasonable, if charter rate
trends and the length of the current market downturn, vary
significantly from our forecasts, management may be required to
perform step two of the impairment analysis in the future that
could expose Navios Partners to material impairment charges in
the future.
Vessels
Vessels are stated at historical cost, which consists of the
contract price, any material expenses incurred upon acquisition
(improvements and delivery expenses). Subsequent expenditures
for major improvements and upgrading are capitalized, provided
they appreciably extend the life, increase the earning capacity
or improve the efficiency or safety of the vessels. Expenditures
for routine maintenance and repairs are expensed as incurred.
69
Depreciation is computed using the straight line method over the
useful life of the vessels, after considering the estimated
residual value. Management estimates the useful life of our
vessels to be 25 years from the vessels original
construction. However, when regulations place limitations over
the ability of a vessel to trade on a worldwide basis, its
useful life is re-estimated to end at the date such regulations
become effective.
Deferred
Drydock and Special Survey Costs
Our vessels are subject to regularly scheduled drydocking and
special surveys which are carried out every 30 or 60 months
to coincide with the renewal of the related certificates issued
by the classification societies, unless a further extension is
obtained in rare cases and under certain conditions. The costs
of drydocking and special surveys are deferred and amortized
over the above periods or to the next drydocking or special
survey date if such has been determined. Unamortized drydocking
or special survey costs of vessels sold are written off to
income in the year the vessel is sold.
Revenue
Recognition
Revenue is recorded when services are rendered, we have a signed
charter agreement or other evidence of an arrangement, the price
is fixed or determinable, and collection is reasonably assured.
We generate revenue from transportation of cargos and time
charter of vessels.
Voyage revenues for the transportation of cargo are recognized
ratably over the estimated relative transit time of each voyage.
A voyage is deemed to commence when a vessel is available for
loading and is deemed to end upon the completion of the
discharge of the current cargo. Estimated losses on voyages are
provided for in full at the time such losses become evident.
Under a voyage charter, we agree to provide a vessel for the
transportation of specific goods between specific ports in
return for payment of an agreed upon freight rate per ton of
cargo.
Revenues from time chartering of vessels are accounted for as
operating leases and are thus recognized on a straight line
basis as the average revenue over the rental periods of such
charter agreements, as service is performed, except for loss
generating time charters, in which case the loss is recognized
in the period when such loss is determined. A time charter
involves placing a vessel at the charterers disposal for a
period of time during which the charterer uses the vessel in
return for the payment of a specified daily hire rate. Short
period charters for less than three months are referred to as
spot charters. Charters extending three months to a year are
generally referred to as medium term charters. All other
charters are considered long term. Under time charters,
operating cost such as for crews, maintenance and insurance are
typically paid by the owner of the vessel.
Recent
Accounting Pronouncements
In September 2006, the FASB issued Statement of Financial
Accounting Standards No. 157 (SFAS 157) Fair
Value Measurement. SFAS 157 defines fair value,
establishes a framework for measuring fair value in generally
accepted accounting principles (GAAP) and expands disclosures
about fair value measurements. SFAS 157 is effective for
financial statements issued for fiscal years beginning after
November 15, 2007, and interim periods within those fiscal
years. Earlier application is encouraged, provided that the
reporting entity has not yet issued financial statements for
that fiscal year, including financial statements for an interim
period within that fiscal year. The provisions of SFAS 157
should be applied prospectively as of the beginning of the
fiscal year in which it is initially applied except for certain
cases where it should be applied retrospectively. The adoption
of this standard is not expected to have a material effect on
the consolidated financial statements. This statement was
effective for Navios Partners for the fiscal year beginning on
January 1, 2008 and it did not have a material affect on
its consolidated financial statements.
In February 2007, the FASB issued Statement of Financial
Accounting Standards No. 159 (SFAS 159) The Fair
Value Option for Financial Assets and Financial
Liabilities. SFAS 159 permits the entities to choose
to measure many financial instruments and certain other items at
fair value that are not currently required to be measured at
fair value. This Statement is expected to expand the use of fair
value measurement,
70
which is consistent with the Boards long-term measurement
objectives for accounting for financial instruments.
SFAS 159 is effective as of the beginning of an
entitys first fiscal year that begins after
November 15, 2007. Early adoption is permitted as of the
beginning of a fiscal year on or before November 15, 2007,
provided the entity also elects to apply the provisions of FASB
Statement No. 157, Fair Value Measurements. The
adoption of this standard is not expected to have a material
effect on the consolidated financial statements. This statement
was effective for Navios Partners for the fiscal year beginning
on January 1, 2008 and it did not have a material affect on
its consolidated financial statements.
In December 2007, the FASB issued SFAS No. 141
(revised 2007), Business Combinations
(FAS 141R), which replaces FASB Statement
No. 141. FAS 141R establishes principles and
requirements for how an acquirer recognizes and measures in its
financial statements the identifiable assets acquired, the
liabilities assumed any non controlling interest in the acquiree
and the goodwill acquired. The Statement also establishes
disclosure requirements which will enable users to evaluate the
nature and financial effects of the business combination.
FAS 141R will be effective for Navios Partners for fiscal
year beginning on January 1, 2009. Navios Partners is
currently evaluating the potential impact of the adoption of
FAS 141R on its consolidated financial statements.
In December 2007, the FASB issued SFAS No. 160,
Noncontrolling Interests in Consolidated Financial
Statement amendments of ARB No. 51
(SFAS No. 160).
SFAS No. 160 states that accounting and reporting
for minority interests will be recharacterized as noncontrolling
interests and classified as a component of equity. The Statement
also establishes reporting requirements that provide sufficient
disclosures that clearly identify and distinguish between the
interests of the parent and the interests of the noncontrolling
owners. SFAS No. 160 applies to all entities that
prepare consolidated financial statements, except not-for-profit
organizations, but will affect only those entities that have an
outstanding noncontrolling interest in one or more subsidiaries
or that deconsolidate a subsidiary. This statement will be
effective as of January 1, 2009. Navios Partners is
currently evaluating the potential impact, if any, of the
adoption of SFAS No. 160 on its consolidated financial
statements.
In February 2008, the FASB issued the FASB Staff Position
(FSP
No. 157-2)
which delays the effective date of SFAS 157, for
nonfinancial assets and nonfinancial liabilities, except for
items that are recognized or disclosed at fair value in the
financial statements on a recurring basis (at least annually).
For purposes of applying this FSP, nonfinancial assets and
nonfinancial liabilities would include all assets and
liabilities other that those meeting the definition of a
financial asset or financial liability as defined in
paragraph 6 of FASB Statement No. 159, The Fair
Value Option for Financial Assets and Financial
Liabilities This FSP defers the effective date of
SFAS 157 to fiscal years beginning after November 15,
2008, and the interim periods within those fiscal years for
items within the scope of this FSP. The application of
SFAS 157 in future periods to those items covered by
FSP 157-2
did not have a material effect on the consolidated financial
statements of Navios Partners.
In October 2008, the FASB issued the FASB Staff Position
(FSP
No. 157-3)
which clarifies the application of FASB Statement No. 157,
Fair Value Measurements in a market that is not
active and provides an example to illustrate key considerations
in determining the fair value of a financial asset when the
market for that asset is not active. This FSP applies to
financial assets within the scope of accounting pronouncements
that require or permit fair value measurements in accordance
with Statement 157. The FSP shall be effective upon issuance,
including prior periods for which financial statements have not
been issued. Revisions resulting from a change in the valuation
technique or its application shall be accounted for as a change
in accounting estimate (FASB Statement No. 154
Accounting changes and Error Corrections,
paragraph 19). The disclosure provisions of Statement
No. 154 for a change in accounting estimate are not
required for revisions resulting from a change in valuation
technique or its application. The application of
FSP 157-3
does not have a material effect on the consolidated financial
statements of Navios Partners.
In March 2008, the FASB issued its final consensus on
Issue
07-4
Application of the
Two-Class Method
under FASB Statement No. 128, Earnings per Share, to Master
Limited Partnerships. This issue may impact a publicly
traded master limited partnership (MLP) that distributes
available cash to the limited partners (LPs), the
general partner (GP), and the holders of incentive distribution
rights (IDRs). This
71
issue addresses
earnings-per-unit
(EPU) computations for all MLPs with IDR interests. MLPs will
need to determine the amount of available cash at
the end of a reporting period when calculating the periods
EPU. This guidance in Issue
07-4 will be
effective for Navios Partners for the fiscal year beginning on
January 1, 2009 and the application of the guidance would
be accounted for as a change in accounting principle through
retrospective application. Early application would not be
permitted. Navios Partners is currently evaluating the potential
impact, if any, of the adoption of Issue
07-4 under
FASB Statement No. 128 on its consolidated financial
statements.
In April 2008, FASB issued FASB Staff Position
FSP 142-3
Determination of the useful life of intangible
assets. This FASB Staff Position (FSP) amends the factors
that should be considered in developing renewal or extension
assumptions used to determine the useful life of a recognized
intangible asset under FASB Statement No. 142,
Goodwill and Other Intangible Assets. The intent of
this FSP is to improve the consistency between the useful life
of a recognized intangible asset under Statement 142 and the
period of expected cash flows used to measure the fair value of
the asset under FASB Statement No. 141 (revised 2007),
Business Combinations, and other U.S. generally
accepted accounting principles (GAAP). This FSP will be
effective for Navios Partners for fiscal years beginning after
December 15, 2008, and interim periods within those fiscal
years. Early adoption is prohibited. The adoption of
FSP 142-3
is not expected to have a material effect on the consolidated
financial statements of Navios Partners.
In May 2008, the Financial Accounting Standards Board issued
FASB Statement No. 162, The Hierarchy of Generally
Accepted Accounting Principles. The new standard is
intended to improve financial reporting by identifying a
consistent framework, or hierarchy, for selecting accounting
principles to be used in preparing financial statements that are
presented in conformity with U.S. generally accepted
accounting principles (GAAP) for nongovernmental entities.
Statement 162 is effective 60 days following the SECs
approval of the Public Company Accounting Oversight Board
Auditing amendments to AU Section 411, The Meaning of
Present Fairly in Conformity with Generally Accepted Accounting
Principles. The adoption of SFAS No. 162 is not
expected to have material effect on the consolidated financial
statements of Navios Partners.
|
|
Item 6.
|
Directors,
Senior Management and Employees
|
|
|
A.
|
Directors
and Senior Management
|
The following table sets forth information regarding our
directors and senior management:
|
|
|
|
|
|
|
Name
|
|
Age
|
|
Position
|
|
Angeliki Frangou
|
|
|
43
|
|
|
Chairman of the Board, Chief Executive Officer and Director
|
Michael E. McClure
|
|
|
62
|
|
|
Chief Financial Officer
|
George Achniotis
|
|
|
43
|
|
|
Executive Vice President-Business Development and Director
|
Shunji Sasada
|
|
|
50
|
|
|
Director
|
Leonidas Korres
|
|
|
32
|
|
|
Director (Class III)
|
Efstathios Loizos
|
|
|
46
|
|
|
Director (Class II)
|
Robert Pierot
|
|
|
50
|
|
|
Director (Class I)
|
John Karakadas
|
|
|
46
|
|
|
Director (Class I)
|
Biographical information with respect to each of our directors
and our executive officers is set forth below. The business
address for our directors and executive officers is 85 Akti
Miaouli Street, 185 38 Greece.
Angeliki Frangou was appointed our Chairman and Chief
Executive Officer in August 2007. Ms. Frangou has been
Navios Holdings Chairman of the Board and Chief Executive
Officer since August 25, 2005, the date of the acquisition
of Navios Holdings by ISE. Prior to the acquisition,
Ms. Frangou was the Chairman, Chief Executive Officer and
President of ISE. Ms. Frangou has been the Chief Executive
Officer of Maritime Enterprises Management S.A., a company
located in Piraeus, Greece, that specializes in the management
of dry cargo vessels of various types and sizes, since she
founded the company in October 2001 until August 2005. From 1990
to October 2001, Ms. Frangou was the chief executive
officer of Franser
72
Shipping S.A., a company that was located in Piraeus, Greece,
and was also engaged in the management of dry cargo vessels.
Prior to her employment with Franser Shipping, Ms. Frangou
was an analyst on the trading floor of Republic National Bank of
New York, from 1987 to 1989. Ms. Frangou was also a member
of the board of directors of Emporiki Bank of Greece, the second
largest retail bank in Greece, up to July 2005. Ms. Frangou
is the Chairman and Chief Executive Officer of Navios Maritime
Acquisition Corporation, a New York Stock Exchange listed
company as of June 2008. Ms. Frangou is also the
chairman of the board of IRF European Finance Investments Ltd.,
listed in AIM of the London Stock Exchange. She was also
chairman of the board of directors of Proton Bank, based in
Athens, Greece, from June 2006 until September 2008.
Ms. Frangou is a member of the Mediterranean Committee of
China Classification Society, a member of the Hellenic and Black
Sea Committee of Bureau Veritas and member of the Greek
Committee of Nippon Kaiji Kyokai. Ms. Frangou received a
bachelors degree in mechanical engineering from Fairleigh
Dickinson University (summa cum laude) and a masters degree in
mechanical engineering from Columbia University.
Michael E. McClure was appointed our Chief Financial
Officer in August 2007. Mr. McClure has been Senior Vice
President Corporate Affairs of Navios Holdings since
April 12, 2007. Prior to that date, Mr. McClure was
Chief Financial Officer of Navios Holdings from October 1,
2005 to April 12, 2007. Mr. McClure joined Navios
Holdings in 1978, at which time he served as Manager of
Financial Analysis and then Director of South American
Transportation Projects, which included Navios Holdings
owned port facility in Uruguay and its commercial leads in
Venezuela and Columbia. He is a board member of The Baltic
Exchange and the prior chairman of the Baltic Exchange Freight
Market Indices Committee, which is the organization responsible
for all freight indices utilized for freight derivative trading
by the industry. Mr. McClure graduated from
St. Marys college with B.A. and Marquette University,
Milwaukee, Wisconsin, with a M.B.A.
George Achniotis was appointed to our Board of Directors
in August 2007 and he has been our Senior Vice
President-Business Development since February 2008.
Mr. Achniotis has been Navios Holdings Chief
Financial Officer since April 12, 2007. Prior to being
appointed Chief Financial Officer of Navios Holdings,
Mr. Achniotis served as Senior Vice President
Business Development of Navios Holdings from August 2006 to
April 2007. Prior to joining Navios Holdings, Mr. Achniotis
was a partner at PricewaterhouseCoopers from 1999 to August 2006.
Shunji Sasada was appointed to our Board of Directors in
August 2007. Mr. Sasada has been Chief Operating Officer of
Navios Holdings since July 2007. Prior to July 2007,
Mr. Sasada was Senior Vice President Fleet
Development of Navios Holdings from October 1, 2005 to July
2007. Mr. Sasada joined Navios in May 1997. Mr. Sasada
started his shipping career in 1981 in Japan with Mitsui O.S.K.
Lines, Ltd. In 1991, Mr. Sasada joined Trinity Bulk
Carriers as its chartering manager as well as subsidiary board
member representing MOSK as one of the shareholders.
Mr. Sasada is a graduate of Keio University, Tokyo, with a
B.A. degree in business.
Leonidas Korres was appointed to our Board of Directors
in October 2007. Mr. Korres has served as the Special
Secretary for Public Private Partnerships in the Ministry of
Economy and Finance of the Hellenic Republic since October 2005.
From April 2004 to October 2005, Mr. Korres served as
Special Financial Advisor to the Minister of Economy and Finance
of the Hellenic Republic and served as liquidator of the
Organizational Committee for the Olympic Games Athens 2004 S.A.
Prior to his appointment as an advisor to the Minister of
Economy and Finance of the Hellenic Republic, Mr. Korres
worked as Senior Financial Advisor for KPMG Corporate Finance
from 2002 to 2004. From May 2003 to December 2006, he also
served as a chairman of the board of directors of the Center for
Employment and Entrepreneurship Non Profit Company.
Mr. Korres is currently a member of the board of directors
and the audit committee of Hellenic Telecommunications
Organization S.A an Athens and New York Stock Exchange listed
company and member of the board of directors of Hellenic Olympic
Properties S.A., the company responsible for the exploitation of
the Olympic venues. He holds a bachelors degree in
Economics from the Athens University of Economics and Business
and a masters degree in Finance from the University of
London.
Efstathios Loizos was appointed to our Board of Directors
in October 2007. Since 2005, Mr. Loizos has served as the
President of the International Packaging Association and has
been the Vice President of the board of directors of the
Hellenic Association of Steel Packaging Manufacturers.
Mr. Loizos has served as the
73
General Manager and a member of the board of directors of Elsa
S.A., a Greek steel packaging company and has been the Vice
Chairman of the board of directors of Atlas S.A., one of its
affiliates. In October 2008, Mr. Loizos joined the Managing
Team of ION S.A. a leading Greek chocolate & cocoa
group of companies and has been appointed Joint Managing
Director of MABEL S.A. one the affiliated companies of the
group. Finally, he is one the founders and Vice Chairman of the
Board of Directors of the recently formed company Facility Plus
which is engaged in the field of property & facility
management. Mr. Loizos received a Matrise en sciences
economiques from the University of Strasbourg and an M.B.A. in
finance from New York University.
Robert Pierot was appointed to our Board of Directors in
October 2007. Since 1979, Mr. Pierot has been engaged in
brokering the sale and purchase of a variety of ocean-going
vessels, ranging from large bulk carriers and tankers to vessels
used to service offshore oil and gas exploration and production
facilities. Currently, Mr. Pierot serves as director and
principal of Jacq. Pierot Jr. & Sons, Inc., a privately
held shipbrokers firm based in New York. From 1987 to 2007,
Mr. Pierot served as President of Pierot Enterprise, a
family investment firm, and one of the founding shareholders of
Chiles Offshore. Mr. Pierot was one of the original members
of the board of directors of Chiles Offshore. Mr. Pierot is
also a member of the board of directors of the
Hellenic-American
Chamber of Commerce, a position he has held since 1980.
John Karakadas was appointed to our Board of Directors in
October 2007. Since April 2007, Mr. Karakadas has served as
Executive Director (currently Deputy CEO) of Marfin Investment
Group; an Athens Exchange listed Investment Company.
Mr. Karakadas currently serves as Chairman and Chief
Executive Officer of SingularLogic, a South East European
software vendor and information technology services provider
listed on the Athens Exchange. Previously, Mr. Karakadas
has also served on the board of directors of IRF European
Finance Investments Ltd., a London Stock Exchange listed
company, and since 2004, he has served on the board of directors
of Greek Information Technology Holdings S.A. During the period
between 2002 and 2003, Mr. Karakadas was the Managing
Director of Tchibo GmbH. Prior to that time, from 1999 to 2000,
Mr. Karakadas was President, Asia Pacific, of Burger King,
based in Sydney, Australia. Mr. Karakadas received a BBA in
Industrial Management from Kent State University.
Reimbursement
of Expenses of Our General Partner
Our general partner does not receive any management fee or other
compensation for services from us, although it will be entitled
to reimbursement for expenses incurred on our behalf. In
addition, we reimburse Navios ShipManagement and certain
affiliates for expenses incurred pursuant to the management
agreement and administrative services agreement we entered into
with Navios ShipManagement. Our general partner and its other
affiliates are reimbursed for expenses incurred on our behalf.
These expenses include all expenses necessary or appropriate for
the conduct of our business and allocable to us, as determined
by our general partner. For the period after the closing of the
IPO on November 16, 2007 to December 31, 2007 and for
the year ended December 31, 2008 no amounts were paid to
the General Partner.
Officers
Compensation
We and our General Partner were formed in August
2007. Because our Chief Executive Officer and our
Chief Financial Officer are employees of Navios Holdings, their
compensation is set and paid by Navios Holdings, and we
reimburse Navios Holdings for time they spend on partnership
matters pursuant to the administrative services agreement. Under
the terms of the administrative agreement, we reimburse Navios
Holdings for the actual costs and expenses it incurs in
providing administrative support services to us. The amount of
our reimbursements to Navios Holdings for the time of our
officers depends on an estimate of the percentage of time our
officers spent on our business and is based on a percentage of
the salary and benefits that Navios Holdings pays to such
officers after the closing of the IPO. Our officers, and
officers and employees of affiliates of our General Partner, may
participate in employee benefit plans and arrangements sponsored
by Navios Holdings, our General Partner or their affiliates,
including plans that may be established in the future. Our board
of directors may establish such plans without the approval of
our limited partners. For
74
the period from November 16, 2007 to December 31, 2007
and for the year ended December 31, 2008, the fee charged
by the Manager for administrative services was $161,000 and
$1.5 million, respectively.
Compensation
of Directors
Our officers or officers of Navios Holdings who also serve as
our directors do not receive additional compensation for their
service as directors. Each non-management director receives
compensation for attending meetings of our board of directors,
as well as committee meetings. Non-management directors receive
a director fee of $35,000 per year. Ms. Frangou receives a
fee of $100,000 per year for acting as a director and as our
Chairman of the Board. The Chairman of our audit committee and
our conflicts committee receives an additional fee of $20,000
per year. In addition, each director is reimbursed for
out-of-pocket expenses in connection with attending meetings of
the board of directors or committees. Each director is fully
indemnified by us for actions associated with being a director
to the extent permitted under Marshall Islands law.
For the year ended December 31, 2008, the aggregate annual
compensation paid to our current non-management executive
directors was approximately $160,000 and $100,000 was paid to
Ms. Frangou for acting as a director and as our Chairman of
the Board.
For the period after the closing of the IPO on November 16,
2007 to December 31, 2007, the aggregate annual
compensation paid to our current non-management executive
directors was approximately $32,000, whereas no amount was paid
to Ms. Frangou for acting as a director and as our Chairman
of the Board.
Our partnership agreement provides that our General Partner has
delegated to our board of directors the authority to oversee and
direct our operations, management and policies on an exclusive
basis, and such delegation will be binding on any successor
general partner of the partnership. Our General Partner, Navios
GP L.L.C., is wholly owned by Navios Holdings. Our executive
officers manage our day-to-day activities consistent with the
policies and procedures adopted by our board of directors. All
of our executive officers and three of our directors also are
executive officers, directors
and/or
affiliates of Navios Holdings and our Chief Executive Officer is
also the Chairman and Chief Executive Officer of Navios
Acquisition.
Our board of directors consists of seven members appointed by
Navios Holdings. Following our first annual meeting of
unitholders in 2008, our board of directors consisted of seven
members, three persons who were appointed by our general partner
in its sole discretion and four who were elected by the common
unitholders. Directors appointed by our general partner serve as
directors for terms determined by our general partner. Directors
elected by our common unitholders are divided into three classes
serving staggered three-year terms. Two of the four directors
elected by our common unitholders were designated as the
Class I elected directors and will serve until our annual
meeting of unitholders in 2009, one of the four directors were
designated as the Class II elected director and will serve
until our annual meeting of unitholders in 2010 and the
remaining director was designated as our Class III elected
director and will serve until our annual meeting of unitholders
in 2011. At each subsequent annual meeting of unitholders,
directors will be elected to succeed the class of directors
whose terms have expired by a plurality of the votes of the
common unitholders. Directors elected by our common unitholders
will be nominated by the board of directors or by any limited
partner or group of limited partners that holds at least 10% of
the outstanding common units.
We have two committees: an audit committee and a conflicts
committee. With respect to our corporate governance, there are
several significant differences between us and a domestic issuer
in that the New York Stock Exchange does not require a listed
limited partnership like us to have a majority of independent
directors on our board of directors or to establish a
compensation committee or a nominating/corporate governance
committee.
The three independent members of our board of directors serve on
a conflicts committee to review specific matters that the board
believes may involve potential conflicts of interest. The
conflicts committee determines if the resolution of the conflict
of interest is fair and reasonable to us. The members of the
75
conflicts committee may not be officers or employees of our
general partner or directors, officers or employees of its
affiliates, and must meet the independence standards established
by the New York Stock Exchange to serve on an audit committee of
a board of directors and certain other requirements. Any matters
approved by the conflicts committee are conclusively deemed to
be fair and reasonable to us, approved by all of our partners,
and not a breach by our directors, our general partner or its
affiliates of any duties any of them may owe us or our
unitholders. The members of our conflicts committee are
Messrs. Efstathios Loizos, John Karakadas and Leonidas
Korres.
In addition, we have an audit committee of three independent
directors. One of the members of the audit committee is an
audit committee financial expert for purposes of SEC
rules and regulations. The audit committee, among other things,
reviews our external financial reporting, engages our external
auditors and oversees our internal audit activities and
procedures and the adequacy of our internal accounting controls.
Our initial audit committee comprised of Messrs. Efstathios
Loizos, John Karakadas and Leonidas Korres and our audit
committee financial expert is Mr. Loizos.
Employees of Navios ShipManagement, a subsidiary of Navios
Holdings, provide assistance to us and our operating
subsidiaries pursuant to the management agreement and the
administrative services agreement.
Our Chief Executive Officer, Ms. Angeliki Frangou, and our
Chief Financial Officer, Mr. Michael E. McClure, allocate
their time between managing our business and affairs and the
business and affairs of Navios Holdings, and our Chief Executive
Officer is also the Chief Executive Officer of Navios
Acquisition. While the amount of time each of them allocate
between our business and the business of Navios Holdings and
Navios Acquisition varies from time to time depending on various
circumstances and the respective needs of the business, such as
their relative levels of strategic activities, we anticipate
that each of them will allocate approximately one quarter of
their time to our business.
Our officers and other individuals providing services to us or
our subsidiaries may face a conflict regarding the allocation of
their time between our business and the other business interests
of Navios Holdings and Navios Acquisition. We intend to cause
our officers to devote as much time to the management of our
business and affairs as is necessary for the proper conduct of
our business and affairs.
Our General Partner owes a fiduciary duty to our unitholders,
subject to limitations. Our General Partner is liable, as
General Partner, for all of our debts (to the extent not paid
from our assets), except for indebtedness or other obligations
that are expressly non-recourse to it. Whenever possible, the
partnership agreement directs that we should incur indebtedness
or other obligations that are non-recourse to our General
Partner.
Whenever our General Partner makes a determination or takes or
declines to take an action in its individual capacity rather
than in its capacity as our General Partner, it is entitled to
make such determination or to take or decline to take such other
action free of any fiduciary duty or obligation whatsoever to us
or any limited partner, and is not required to act in good faith
or pursuant to any other standard imposed by our partnership
agreement or under the Marshall Islands Act or any other law.
Specifically, 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 appointment
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. Actions of our General Partner, which are
made in its individual capacity, are made by Navios Holdings as
sole member of our General Partner.
Employees of Navios ShipManagement, a subsidiary of Navios
Holdings, provide assistance to us and our operating
subsidiaries pursuant to the management agreement and the
administrative services agreement; therefore Navios Partners
does not employ additional staff.
76
Navios Holdings crews its vessels primarily with Greek officers,
Ukrainian, Polish and Georgian officers and Filipino, Georgian
and Ukrainian seamen. Navios Holdings fleet manager is
responsible for selecting its Greek officers. For other
nationalities, officers and seamen are referred to Navios
ShipManagement by local crewing agencies. The crewing agencies
handle each seamans training, travel, and payroll. Navios
requires that all of its seamen have the qualifications and
licenses required to comply with international regulations and
shipping conventions.
Navios ShipManagement also provides on-shore advisory,
operational and administrative support to us pursuant to service
agreements. Please see Item 7 Major
Unitholders and Related Party Transactions.
The following table sets forth certain information regarding
beneficial ownership, as of February 25, 2009, of our units
by each of our officers and directors and by all of our
directors and officers as a group. The information is not
necessarily indicative of beneficial ownership for any other
purposes. Under SEC rules, a person or entity beneficially owns
any units that the person or entity has the right to acquire as
of April 25, 2009 (60 days after February 25,
2009) through the exercise of any unit option or other
right. The percentage disclosed under Percentage of Total
Common and Subordinated Units Beneficially Owned is based
on 21,686,998 units, representing all outstanding common units
(13,631,415), subordinated units (7,621,843) and general partner
units (433,740). Unless otherwise indicated, each person or
entity has sole voting and investment power (or shares such
powers with his or her spouse) with respect to the units set
forth in the following table. Information for certain holders in
based on information delivered to us.
Identity
of Person or Group
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage of
|
|
|
|
|
Percentage of
|
|
|
Percentage of
|
|
|
Common
|
|
Common
|
|
|
|
|
Subordinated
|
|
|
Total Common and
|
|
|
Units
|
|
Units
|
|
Subordinated
|
|
|
Units
|
|
|
Subordinated
|
|
|
Owned
|
|
Owned
|
|
Units Owned
|
|
|
Owned
|
|
|
Units Owned
|
Angeliki
Frangou(1)(2)
|
|
500,000
|
|
3.7%
|
|
|
|
|
|
|
|
|
|
2.3%
|
Michael E. McClure
|
|
*
|
|
*
|
|
|
|
|
|
|
|
|
|
*
|
George Achniotis
|
|
*
|
|
*
|
|
|
|
|
|
|
|
|
|
*
|
Robert Pierot
|
|
*
|
|
*
|
|
|
|
|
|
|
|
|
|
*
|
Shunji Sasada
|
|
*
|
|
*
|
|
|
|
|
|
|
|
|
|
*
|
Leonidas Korres
|
|
*
|
|
*
|
|
|
|
|
|
|
|
|
|
*
|
Efstathios Loizos
|
|
*
|
|
*
|
|
|
|
|
|
|
|
|
|
*
|
John Karakadas
|
|
*
|
|
*
|
|
|
|
|
|
|
|
|
|
*
|
All directors and officers as a group
(8 persons)(2)(3)
|
|
595,000
|
|
4.4%
|
|
|
|
|
|
|
|
|
|
2.7%
|
|
|
|
*
|
|
Less than 1%
|
|
(1)
|
|
Held through Amadeus Maritime S.A.,
a corporation owned by Angeliki Frangou, our Chairman and Chief
Executive Officer.
|
|
(2)
|
|
Excludes units owned by Navios
Holdings, on the board of which serves our Chief Executive
Officer, Angeliki Frangou. In addition, Ms. Frangou is
Navios Holdings President and Chief Executive Officer, and
Mr. McClure is Navios Holdings Senior Vice
President Corporate Affairs.
|
|
(3)
|
|
Each director, executive officer
and key employee, other than Ms. Frangou, beneficially owns
less than one percent of the outstanding common and subordinated
units.
|
77
|
|
Item 7.
|
Major
Unitholders and Related Party Transactions
|
The following table sets forth the beneficial ownership as of
February 24, 2009, of our common and subordinated units by
each person we know to beneficially own more than 5% of the
common or subordinated units. The number of units beneficially
owned by each person is determined under SEC rules and the
information is not necessarily indicative of beneficial
ownership for any other purpose. Under SEC rules, a person
beneficially owns any units as to which the person has or shares
voting or investment power. In addition, a person beneficially
owns any units that the person or entity has the right to
acquire as of April 24, 2009 (60 days after
February 24, 2009) through the exercise of any unit
option or other right. The percentage disclosed under
Percentage of Total Common and Subordinated Units
Beneficially Owned is based on 21,686,998 units,
representing all outstanding common units (13,631,415),
subordinated units (7,621,843) and general partner units
(433,740).
|
|
|
|
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Percentage of
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Common Units Beneficially
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Subordinated Units
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Total Common and
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Owned
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Beneficially Owned
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Subordinated Units
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Number
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|
Percentage
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Number
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Percentage
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|
Beneficially Owned
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|
Name of Beneficial Owner
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Navios
Holdings(1)(2)
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|
3,131,415
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|
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23.0
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%
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|
7,621,843
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100
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%
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49.6
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%
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Neuberger Berman
Inc.(3)
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1,665,980
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12.22
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%
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7.7
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%
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Kayne Anderson Capital Advisors,
L.P.(4)
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981,664
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|
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7.2
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%
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4.5
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%
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Lehman Brothers Holdings
Inc.(5)
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879,935
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6.5
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%
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4.1
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%
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(1)
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Excludes the 2.0% general partner
interest held by our general partner, a wholly owned subsidiary
of Navios Holdings.
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(2)
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Navios Holdings is a U.S. public
company controlled by its board of directors, which consists of
the following seven members: Angeliki Frangou, Vasiliki
Papaefthymiou, Ted Petrone, Spyridon Magoulas, John Stratakis,
Rex Harrington and Allan Shaw.
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(3)
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Owners of Neuberger Berman, LLC and
Neuberger Management, Inc. that are both sub-adviser and
investment manager, respectively, of Neuberger Bermans
various mutual funds. Based on a Schedule 13G/A filed on
February 11, 2009 with the SEC.
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(4)
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Based on a Schedule 13G filed
on February 11, 2009 with the SEC and reporting the units
are owned by investment accounts managed by Kayne Anderson
Capital Advisors, L.P.
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(5)
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Based on Schedule 13G/A filed
on February 13, 2008 with the SEC and reporting Lehman
Brothers Holdings Inc. as the owner of various entities that
beneficially own the reported shares.
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Our majority unitholders have the same voting rights as our
other unitholders except as follows: each outstanding common
unit is entitled to one vote on matters subject to a vote of
common unitholders. However, to preserve our ability to be
exempt from U.S. federal income tax under Section 883
of the Code, if at any time, 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. The voting rights of any such
unitholders in excess of 4.9% will effectively be redistributed
pro rata among the other unitholders holding less than 4.9% of
the voting power of such class of units. 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 are controlled by Navios Holding. We are not aware of any
arrangements, the operation of which may at a subsequent date
result in a change in control of the Partnership.
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B.
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Related
Party Transactions
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Navios Holdings, the sole member of our General Partner, owns
7,621,843 subordinated units and 3,131,415 common units
representing a 49.6% limited partner interest in us based on all
outstanding limited, subordinated and general partner units. In
addition, our General Partner owns a 2.0% general partner
interest
78
in us and all of our incentive distribution rights. Navios
Holdings ability, as sole member of our General Partner,
to control the appointment of three of the seven members of our
board of directors and to approve certain significant actions we
may take and its ownership of all of the outstanding
subordinated units and its right to vote the subordinated units
as a separate class on certain matters, means that Navios
Holdings, together with its affiliates, has the ability to
exercise influence regarding our management.
First
Contribution and Conveyance Agreement
In connection with the IPO, we entered into the First
Contribution and Conveyance Agreement with the General Partner,
the Operating Company and Navios Maritime Holdings, pursuant to
which Navios Maritime Holdings contributed all of the
outstanding shares of capital stock of Felicity Shipping
Corporation to the Partnership in exchange for 4,195,000
Subordinated Units.
Second
Contribution and Conveyance Agreement
In connection with the IPO, we entered into a Second
Contribution and Conveyance Agreement with the General Partner,
the Operating Company and Navios Maritime Holdings, pursuant to
which: (i) The General Partners initial general
partner interest was converted into 369,834 General Partner
Units and the Incentive Distribution Rights; (ii) Navios
Maritime Holdings sold to the Partnership all of the shares of
capital stock of Gemini Shipping Corporation, Alegria Shipping
Corporation, Galaxy Shipping Corporation, Libra Shipping
Enterprises Corporation, Prosperity Shipping Corporation,
Aldebaran Shipping Corporation and Fantastiks Shipping
Corporation in exchange for (A) 3,426,843 Subordinated
Units, and (B) the right to receive $353.3 million
from the Partnership on the closing date of the IPO; and
(iii) the organizational limited partners initial
limited partner interest was redeemed.
Share
Purchase Agreement for Navios TBN I
In connection with the IPO, we entered into a share purchase
agreement with a wholly owned subsidiary of Navios Holdings
pursuant to which we agreed to acquire the capital stock of the
subsidiary that will own the Capesize vessel Navios TBN I and
related time charter, upon delivery of the vessel in June 2009
for a purchase price of $130.0 million.
The completion of the purchase of Navios TBN I will take place
following the date of delivery to, and acceptance by, a
vessel-owning subsidiary of the vessel under its ship building
contract or such later date as may be mutually agreed.
The purchase price for Navios TBN I will be funded with
borrowings under our existing credit facility and the proceeds
of a future equity offering. Our obligation to purchase Navios
TBN I is not conditioned upon our ability to obtain financing
for such purchase.
Share
Purchase Agreement for Navios TBN II
In connection with the IPO, we entered into a share purchase
agreement with a wholly owned subsidiary of Navios Holdings
pursuant to which we will have the option, exercisable at any
time between January 1, 2009 and April 1, 2009, to
acquire the capital stock of the subsidiary that will own the
Capesize vessel Navios TBN II and related time charter,
scheduled for delivery in October 2009 for a purchase price of
$135.0 million.
Our option to acquire the capital stock of the subsidiary that
will own the Capesize vessel Navios TBN II and related time
charter is exercisable solely at our discretion. If we do not
exercise our purchase right, this purchase agreement will
terminate.
Share
Purchase Agreement for Navios Aurora I
On April 30, 2008, we entered into a share purchase
agreement with a wholly-owned subsidiary of Navios Holdings
pursuant to which we agreed to acquire the capital stock of the
subsidiary that owns the vessel Navios Aurora I, for a
purchase price of $79.9 million, consisting of
$35.0 million cash and the
79
issuance of 3,131,415 common units. On July 1, 2008, we
issued 3,131,415 common units to Navios Holdings for the
acquisition of Navios Aurora I, and 63,906 general
partnership units in exchange for the contribution received from
the General Partner to maintain its 2% general partner interest
in Navios Partners.
Registration
Rights Agreement
On April 30, 2008, in connection with the share purchase
agreement for Navios Aurora I, we entered into a
registration rights agreement with a wholly-owned subsidiary of
Navios Holdings pursuant to which that subsidiary has the right,
subject to some conditions, to require us to file one or more
registration statements covering the resale of the common units
issued in connection with the acquisition of the Navios Aurora I.
Omnibus
Agreement
At the closing of the IPO, we entered into an omnibus agreement
with Navios Holdings, our general partner and our operating
subsidiary. The following discussion describes certain
provisions of the omnibus agreement.
Noncompetition
Under the omnibus agreement, Navios Holdings agreed, and caused
its controlled affiliates (other than us, our general partner
and our subsidiaries) to agree, not to acquire or own Panamax or
Capesize drybulk carriers under charter for three or more years.
This restriction does not prevent Navios Holdings or any of its
controlled affiliates (other than us and our subsidiaries) from:
(1) acquiring or owning Panamax or Capesize drybulk
carriers under charters for less than three years;
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(2)
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(x) acquiring a Panamax or Capesize drybulk carrier under
charter for three or more years after the closing of the IPO if
Navios Holdings offers to sell to us the vessel for fair market
value or (y) putting a Panamax or Capesize drybulk carrier
that Navios Holdings owns under charter for three or more years
if Navios Holdings offers to sell the vessel to us for fair
market value at the time it is chartered for three or more years
and, in each case, at each renewal or extension of that charter
for three or more years;
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(3)
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acquiring a Panamax or Capesize drybulk carrier under charter
for three or more years as part of the acquisition of a
controlling interest in a business or package of assets and
owning those vessels; provided, however, that:
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(a)
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if less than a majority of the value of the total assets or
business acquired is attributable to those Panamax or Capesize
drybulk carriers and related charters, as determined in good
faith by the board of directors of Navios Holdings, Navios
Holdings must offer to sell such Panamax or Capesize drybulk
carriers and related charters to us for their fair market value
plus any additional tax or other similar costs to Navios
Holdings that would be required to transfer the Panamax and
Capesize drybulk carriers and related charters to us separately
from the acquired business; and
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(b)
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if a majority or more of the value of the total assets or
business acquired is attributable to the Panamax or Capesize
drybulk carriers and related charters, as determined in good
faith by the board of directors of Navios Holdings, Navios
Holdings shall notify us in writing, of the proposed
acquisition. We shall, not later than the 15th calendar day
following receipt of such notice, notify Navios Holdings if we
wish to acquire such Panamax or Capesize drybulk carriers and
related charters forming part of the business or package of
assets in cooperation and simultaneously with Navios Holdings
acquiring the non-Panamax or non-Capesize drybulk carriers and
related charters forming part of that business or package of
assets. If we do not notify Navios Holdings of our intent to
pursue the acquisition within 15 calendar days, Navios Holdings
may proceed with the acquisition as provided in (a) above.
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(4)
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acquiring a non-controlling interest in any company, business or
pool of assets;
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(5)
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acquiring or owning any Panamax or Capesize drybulk carrier and
related charter if we do not fulfill our obligation, under any
existing or future written agreement, to purchase such vessel in
accordance with the terms of any such agreement;
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(6)
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acquiring or owning Panamax or Capesize drybulk carriers under
charter for three or more years subject to the offers to us
described in paragraphs (2) and (3) above pending our
determination whether to accept such offers and pending the
closing of any offers we accept;
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(7)
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providing ship management services relating to any vessel
whatsoever, including to Panamax or Capesize drybulk carriers
owned by the controlled affiliates of Navios Holdings; or
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(8)
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acquiring or owning Panamax or Capesize drybulk carriers under
charter for three or more years if we have previously advised
Navios Holdings that we consent to such acquisition, operation
or charter.
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Under the omnibus agreement, Navios Holdings will not be
prohibited from operating chartered-in Panamax or Capesize
drybulk carriers under charter-out contracts for three or more
years, so long as immediately prior to the time such vessel is
proposed to be put under such charter-out contract, Navios
Holdings offers such charter-out opportunity to us in the event
that (i) we have a Panamax or Capesize drybulk carrier that is
available and comparable to Navios Holdings chartered-in
vessel and (ii) it is acceptable to the charter customer.
If Navios Holdings or any of its controlled affiliates (other
than us or our subsidiaries) acquires or owns Panamax or
Capesize drybulk carriers pursuant to any of the exceptions
described above, it may not subsequently expand that portion of
its business other than pursuant to those exceptions.
In addition, under the omnibus agreement we agreed, and caused
our subsidiaries to agree, to acquire, own, operate or charter
Panamax or Capesize drybulk carriers with charters of three or
more years only (any vessels that are not Panamax or Capesize
drybulk carriers will in the following be referred to as the
Non-Panamax and Non-Capesize Drybulk Carriers). This
restriction will not:
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(1)
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prevent us or any of our subsidiaries from acquiring a
Non-Panamax or Non-Capesize Drybulk Carrier and any related
charters 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:
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(a)
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if less than a majority of the value of the total assets or
business acquired is attributable to a Non-Panamax or
Non-Capesize Drybulk Carrier and related charter, as determined
in good faith by us; we must offer to sell such Non-Panamax or
Non-Capesize Drybulk Carrier and related charter to Navios
Holdings for their fair market value plus any additional tax or
other similar costs to us that would be required to transfer the
Non-Panamax and Non-Capesize Drybulk Carrier and related charter
to Navios Holdings separately from the acquired
business; and
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(b)
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if a majority or more of the value of the total assets or
business acquired is attributable to a Non-Panamax or
Non-Capesize Drybulk Carrier and related charter, as determined
in good faith by us; we shall notify Navios Holdings in writing
of the proposed acquisition. Navios Holdings shall, not later
than the 15th calendar day following receipt of such
notice, notify us if it wishes to acquire the Non-Panamax or
Non-Capesize Drybulk Carrier forming part of the business or
package of assets in cooperation and simultaneously with us
acquiring the Panamax or Capesize Drybulk Carrier under charter
for three or more years forming part of that business or package
of assets. If Navios Holdings does not notify us of its intent
to pursue the acquisition within 15 calendar days, we may
proceed with the acquisition as provided in (a) above.
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(2)
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prevent us or any of our subsidiaries from owning, operating or
chartering a Non-Panamax or Non-Capesize Drybulk Carrier subject
to the offer to Navios Holdings described in paragraph
(2) above, pending its determination whether to accept such
offer and pending the closing of any offer it accepts; or
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(3)
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prevent us or any of our subsidiaries from acquiring, operating
or chartering a Non-Panamax or Non-Capesize Drybulk Carrier if
Navios Holdings has previously advised us that it consents to
such acquisition, operation or charter.
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If we or any of our subsidiaries owns, operates and charters
Non-Panamax or Non-Capesize Drybulk Carriers pursuant to any of
the exceptions described above, neither we nor such subsidiary
may subsequently expand that portion of our business other than
pursuant to those exceptions.
Upon a change of control of us or our general partner, the
noncompetition provisions of the omnibus agreement will
terminate immediately. Upon a change of control of Navios
Holdings, the noncompetition provisions of the omnibus agreement
will terminate at the time that is the later of one year
following the change of control and the date on which all of our
outstanding subordinated units have converted to common units;
provided, however, that in no event will the noncompetition
provisions of the omnibus agreement terminate upon a change of
control of Navios Holdings prior to the date that is four years
following the date of the omnibus agreement.
Rights
of First Offer
Under the omnibus agreement, we and our subsidiaries will grant
to Navios Holdings a right of first offer on any proposed sale,
transfer or other disposition of any of our Panamax or Capesize
drybulk carriers and related charters or any Non-Panamax or
Non-Capesize Drybulk Carriers and related charters owned or
acquired by us. Likewise, Navios Holdings agreed (and caused its
subsidiaries to agree) to grant a similar right of first offer
to us for any Panamax or Capesize drybulk carrier under charter
for three or more years it might own. These rights of first
offer do not apply to a (a) sale, transfer or other
disposition of vessels between any affiliated subsidiaries, or
pursuant to the terms of any charter or other agreement with a
charter party or (b) merger with or into, or sale of
substantially all of the assets to, an unaffiliated third-party.
Prior to engaging in any negotiation regarding any vessel
disposition with respect to a Panamax or Capesize drybulk
carrier under charter for three or more years with a
non-affiliated third-party or any Non-Panamax or Non-Capesize
Drybulk Carrier and related charter, we or Navios Holdings, as
the case may be, will deliver a written notice to the other
party setting forth the material terms and conditions of the
proposed transaction. During the
15-day
period after the delivery of such notice, we and Navios Holdings
will negotiate in good faith to reach an agreement on the
transaction. If we do not reach an agreement within such
15-day
period, we or Navios Holdings, as the case may be, will be able
within the next 180 calendar days to sell, transfer, dispose or
re-charter the vessel to a third party (or to agree in writing
to undertake such transaction with a third party) on terms
generally no less favorable to us or Navios Holdings, as the
case may be, than those offered pursuant to the written notice.
Upon a change of control of us or our general partner, the right
of first offer provisions of the omnibus agreement will
terminate immediately. Upon a change of control of us or our
general partner, the right of first offer provisions of the
omnibus agreement will terminate immediately. Upon a change of
control of Navios Holdings, the right of first offer provisions
of the omnibus agreement will terminate at the time that is the
later of one year following the change of control and the date
on which all of our outstanding subordinated units have
converted to common units; provided, however, that in no event
will the right of first offer provisions of the omnibus
agreement terminate upon a change of control of Navios Holdings
prior to the date that is four year following the date of the
omnibus agreement.
Indemnification
Under the omnibus agreement, Navios Holdings has agreed to
indemnify us after the closing of the IPO for a period of five
years against certain environmental and toxic tort liabilities
to the extent arising prior to the closing date of the IPO.
Liabilities resulting from a change in law after the closing of
the IPO are excluded from the environmental indemnity. There is
an aggregate cap of $5.0 million on the amount of indemnity
coverage provided by Navios Holdings for these environmental and
toxic tort liabilities. No claim may be made unless the
aggregate dollar amount of all claims exceeds $500,000, in which
case Navios Holdings is liable for claims only to the extent
such aggregate amount exceeds $500,000.
82
Navios Holdings will also indemnify us for liabilities related
to:
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certain defects in title to the assets contributed or sold to us
and any failure to obtain, prior to the closing of the IPO,
certain consents and permits necessary to conduct our business,
which liabilities arise within three years after the closing of
the IPO; and
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certain income tax liabilities attributable to the operation of
the assets contributed to us prior to the time they were
contributed.
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Amendments
The omnibus agreement may not be amended without the prior
approval of the conflicts committee of our board of directors if
the proposed amendment will, in the reasonable discretion of our
board of directors, adversely affect holders of our common units.
Similar
Agreement with Navios Maritime Acquisition
Corporation
On July 1, 2008, Navios Acquisition, an affiliate of Navios
Holdings, consummated its initial public offering. Navios
Acquisition is a blank check company formed to acquire assets or
operating businesses in the marine transportation and logistics
industry, with a primary focus outside of the drybulk shipping
sector. In connection with the initial public offering of Navios
Acquisition, because of the overlap between Navios Acquisition,
Navios Holdings and us, with respect to possible acquisitions
under the terms of our omnibus agreement, we have entered into a
business opportunity right of first refusal agreement, which
provides that, commencing on June 25, 2008 and extending
until the earlier of the consummation of an initial business
combination by Navios Acquisition or its liquidation, we, Navios
Holdings and Navios Acquisition will share business
opportunities in the marine transportation and logistics
industries as follows:
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Navios Acquisition will have the first opportunity to consider
any business opportunities outside of the drybulk shipping
sector.
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Navios Holdings will have the first opportunity to consider any
business opportunities within the drybulk shipping sector, with
the exception of any Panamax or Capesize drybulk carrier under
charter for three or more years it might own.
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We have the first opportunity to consider an acquisition
opportunity relating to any Panamax or Capesize drybulk carrier
under charter for three or more years.
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Decisions by Navios Acquisition to release Navios Holdings and
us to pursue any corporate opportunity outside of the drybulk
sector will be made by a majority of Navios Acquisitions
independent directors.
Management
Agreement
At the closing of the IPO, we entered into a management
agreement with Navios ShipManagement, a subsidiary of Navios
Holdings, pursuant to which Navios ShipManagement has agreed to
provide certain commercial and technical management services to
us. These services are provided in a commercially reasonable
manner in accordance with customary ship management practice and
under our direction. Navios ShipManagement provides these
services to us directly but may subcontract for certain of these
services with other entities, including other Navios Holdings
subsidiaries.
The commercial and technical management services include:
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the commercial and technical management of the
vessel: managing day-to-day vessel operations
including negotiating charters and other employment contracts
with respect to the vessels and monitoring payments thereunder,
ensuring regulatory compliance, arranging for the vetting of
vessels, procuring and arranging for port entrance and
clearance, appointing counsel and negotiating the settlement of
all claims in connection with the operation of each vessel,
appointing adjusters and surveyors and technical consultants as
necessary, and providing technical support,
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vessel maintenance and crewing: including
supervising the maintenance and general efficiency of vessels,
and ensuring the vessels are in seaworthy and good operating
condition, arranging our hire of qualified officers and crew,
arranging for all transportation, board and lodging of the crew,
negotiating the settlement and payment of all wages, and
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purchasing and insurance: purchasing stores,
supplies and parts for vessels, arranging insurance for vessels
(including marine hull and machinery insurance, protection and
indemnity insurance and war risk and oil pollution insurance).
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The initial term of the management agreement is until November
2009, with respect to each vessel in our initial fleet. Pursuant
to the terms of the management agreement, we pay Navios
ShipManagement a fixed daily fee of $4,000 per owned Panamax
vessel and $5,000 per owned Capesize vessel until
November 16, 2009. This fixed daily fee covers all of our
vessel operating expenses, including the cost of special
surveys, other than certain extraordinary fees and costs. During
the remaining period from November 16, 2009 to
November 16, 2012, we expect that we will reimburse Navios
ShipManagement for all of the actual operating costs and
expenses it incurs in connection with the management of our
fleet. Actual operating costs and expenses are determined in a
manner consistent with how the initial $4,000 and $5,000 fixed
fees were determined.
The management agreement may be terminated prior to the end of
its initial term by us upon 120 days notice if there is a
change of control of Navios ShipManagement or by Navios
ShipManagement upon 120 days notice if there is a change of
control of us or our general partner. In addition, the
management agreement may be terminated by us or by Navios
ShipManagement upon 120 days notice if:
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the other party breaches the agreement;
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a receiver is appointed for all or substantially all of the
property of the other party;
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an order is made to wind up the other party;
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a final judgment or order that materially and adversely affects
the other partys ability to perform the management
agreement is obtained or entered and not vacated or
discharged; or
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the other party makes a general assignment for the benefit of
its creditors, files a petition in bankruptcy or liquidation or
commences any reorganization proceedings.
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Furthermore, at any time after the first anniversary of the
management agreement, the management agreement may be terminated
prior to the end of its initial term by us or by Navios
ShipManagement upon 365 days notice for any reason other
than those described above.
In addition to the fixed daily fees payable under the management
agreement, the management agreement provides that Navios
ShipManagement is entitled to reasonable supplementary
remuneration for extraordinary fees and costs resulting from:
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time spent on insurance and salvage claims;
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time spent vetting and pre-vetting the vessels by any charterers
in excess of 10 days per vessel per year;
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the deductible of any insurance claims relating to the vessels
or for any claims that are within such deductible range;
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the significant increase in insurance premiums which are due to
factors such as acts of God outside the control of
Navios ShipManagement;
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repairs, refurbishment or modifications, including those not
covered by the guarantee of the shipbuilder or by the insurance
covering the vessels, resulting from maritime accidents,
collisions, other accidental damage or unforeseen events (except
to the extent that such accidents, collisions, damage or events
are due to the fraud, gross negligence or willful misconduct of
Navios
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ShipManagement, its employees or its agents, unless and to the
extent otherwise covered by insurance);
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expenses imposed due to any improvement, upgrade or modification
to, structural changes with respect to the installation of new
equipment aboard any vessel that results from a change in, an
introduction of new, or a change in the interpretation of,
applicable laws, at the recommendation of the classification
society for that vessel or otherwise;
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costs associated with increases in crew employment expenses
resulting from an introduction of new, or a change in the
interpretation of, applicable laws or resulting from the early
termination of the charter of any vessel;
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any taxes, dues or fines imposed on the vessels or Navios
ShipManagement due to the operation of the vessels;
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expenses incurred in connection with the sale or acquisition of
a vessel such as inspections and technical assistance; and
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any similar costs, liabilities and expenses that were not
reasonably contemplated by us and Navios ShipManagement as being
encompassed by or a component of the fixed daily fees at the
time the fixed daily fees were determined.
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Under the management agreement, neither we nor Navios
ShipManagement are liable for failure to perform any of our or
its obligations, respectively, under the management agreement by
reason of any cause beyond our or its reasonable control.
In addition, Navios ShipManagement has no liability for any loss
arising in the course of the performance of the commercial and
technical management services under the management agreement
unless and to the extent that such loss is proved to have
resulted solely from the fraud, gross negligence or willful
misconduct of Navios ShipManagement or its employees, in which
case (except where such loss has resulted from Navios
ShipManagements intentional personal act or omission and
with knowledge that such loss would probably result) Navios
ShipManagements liability is limited to $3.0 million
for each incident or series of related incidents.
Further, under our management agreement, we have agreed to
indemnify Navios ShipManagement and its employees and agents
against all actions which may be brought against them under the
management agreement including, without limitation, all actions
brought under the environmental laws of any jurisdiction, or
otherwise relating to pollution or the environment, and against
and in respect of all costs and expenses they may suffer or
incur due to defending or settling such action, provided however
that such indemnity excludes any or all losses which may be
caused by or due to the fraud, gross negligence or willful
misconduct of Navios ShipManagement or its employees or agents,
or any breach of the management agreement by Navios
ShipManagement.
Administrative
Services Agreement
At the closing of the IPO, we entered into an administrative
services agreement with Navios ShipManagement, pursuant to which
Navios ShipManagement has agreed to provide certain
administrative management services to us. The agreement has an
initial term expiring in November 2012.
The administrative services agreement may be terminated prior to
the end of its term by us upon 120 days notice if there is
a change of control of Navios ShipManagement or by Navios
ShipManagement upon 120 days notice if there is a change of
control of us or our general partner. In addition, the
administrative services agreement may be terminated by us or by
Navios ShipManagement upon 120 days notice if:
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the other party breaches the agreement;
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a receiver is appointed for all or substantially all of the
property of the other party;
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85
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an order is made to wind up the other party;
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a final judgment or order that materially and adversely affects
the other partys ability to perform the management
agreement is obtained or entered and not vacated or
discharged; or
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the other party makes a general assignment for the benefit of
its creditors, files a petition in bankruptcy or liquidation or
commences any reorganization proceedings.
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Furthermore, at any time after the first anniversary of the
administrative services agreement, the administrative services
agreement may be terminated by us or by Navios ShipManagement
upon 365 days notice for any reason other than those
described above.
The administrative services include:
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bookkeeping, audit and accounting
services: assistance with the maintenance of our
corporate books and records, assistance with the preparation of
our tax returns and arranging for the provision of audit and
accounting services;
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legal and insurance services: arranging for
the provision of legal, insurance and other professional
services and maintaining our existence and good standing in
necessary jurisdictions;
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administrative and clerical
services: assistance with office space, arranging
meetings for our common unitholders pursuant to the partnership
agreement, arranging the provision of IT services, providing all
administrative services required for subsequent debt and equity
financings and attending to all other administrative matters
necessary to ensure the professional management of our business;
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banking and financial services: providing cash
management including assistance with preparation of budgets,
overseeing banking services and bank accounts, arranging for the
deposit of funds, negotiating loan and credit terms with lenders
and monitoring and maintaining compliance therewith;
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advisory services: assistance in complying with United
States and other relevant securities laws;
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client and investor relations: arranging for
the provision of, advisory, clerical and investor relations
services to assist and support us in our communications with our
common unitholders;
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integration of any acquired businesses; and
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client and investor relations.
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We reimburse Navios ShipManagement for reasonable costs and
expenses incurred in connection with the provision of these
services within 15 days after Navios ShipManagement submits
to us an invoice for such costs and expenses, together with any
supporting detail that may be reasonably required.
Under the administrative services agreement, we have agreed to
indemnify Navios ShipManagement and its employees against all
actions which may be brought against them under the
administrative services agreement including, without limitation,
all actions brought under the environmental laws of any
jurisdiction, and against and in respect of all costs and
expenses they may suffer or incur due to defending or settling
such actions; provided, however that such indemnity excludes any
or all losses which may be caused by or due to the fraud, gross
negligence or willful misconduct of Navios ShipManagement or its
employees or agents.
Common
Unit Purchase Agreement between Navios Maritime Partners L.P.
and Amadeus Maritime S.A.
In connection with the IPO, we entered into a common unit
purchase agreement with Amadeus Maritime S.A. (Amadeus
Maritime), a corporation wholly-owned by Ms. Angeliki
Frangou, our Chairman and Chief Executive Officer, pursuant to
which we sold 500,000 common units to Amadeus Maritime at a
price per unit equal to the public offering price.
86
Other
Vessel
Acquisitions.
On July 1, 2008, Navios Partners acquired from Navios
Holdings, the vessel Navios Aurora I for a purchase price of
$79.9 million, consisting of $35.0 million in cash and
the issuance of 3,131,415 common units to Navios Holdings. The
per unit price at the day of the delivery was $14.35.
General
and Administrative expenses
Prior to the IPO, Navios ShipManagement, a wholly-owned
subsidiary of Navios Holdings, provided Navios Holdings
vessels, including our vessels, with a wide range of services
such as chartering, technical support and maintenance,
insurance, consulting, financial and accounting services for a
fixed monthly fee per vessel of $15,000 in 2007 and $16,667 in
2006. Such fee was adjusted at the end of the year, where Navios
ShipManagements remaining profit or loss is reallocated to
the managed vessels, based on the managed days per vessel.
Navios ShipManagement was responsible for managing all cash
transactions of Navios Partners, as it did not maintain any cash
accounts. Navios ShipManagement paid any costs relating to the
operation of Navios Holdings vessels, including our
vessels. Furthermore, all revenues from the vessels operations
were directly deposited to the managers bank accounts.
Total general and administrative expenses for the years ended
December 31, 2006, 2007 and 2008 amounted to
$0.7 million, $1.2 million and $1.5 million
,respectively.
Management
fees:
After the closing of the IPO, pursuant to the management
agreement dated November 16, 2007, Navios ShipManagement
provides commercial and technical management services to our
vessels for a daily fee of $4,000 per owned Panamax vessel and
$5,000 per owned Capesize vessel. This daily fee covers all of
the vessels operating expenses, including the cost of
drydock and special surveys. The daily rates are until
November 16, 2009, whereas the initial term of the
agreement is until November 16, 2012. Total management fees
for the years ended December 31, 2006, 2007 and 2008
amounted to $0 million, $0.9 million and
$9.3 million, respectively.
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Item 8.
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Financial
Information
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A.
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Consolidated
Statements and Other Financial Information
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Consolidated
Financial Statements: See Item 18.
Legal
Proceedings
Although we may, from time to time, be involved in litigation
and claims arising out of our operations in the normal course of
business, we are not at present party to any legal proceedings
or aware of any proceedings against us, or contemplated to be
brought against us, that would have a material effect on our
business, financial position, results of operations or
liquidity. We maintain insurance policies with insurers in
amounts and with coverage and deductibles as our board of
directors believes are reasonable and prudent. We expect that
these claims would be covered by insurance, subject to customary
deductibles. Those claims, even if lacking merit, could result
in the expenditure of significant financial and managerial
resources.
Cash
Distribution Policy
Rationale
for Our Cash Distribution Policy
Our cash distribution policy reflects a basic judgment that our
unitholders are better served by our distributing our cash
available (after deducting expenses, including estimated
maintenance and replacement capital expenditures and reserves)
rather than retaining it. Because we believe we will generally
finance any expansion capital expenditures from external
financing sources, we believe that our investors are best served
by our distributing all of our available cash. Our cash
distribution policy is consistent with the terms of our
87
partnership agreement, which requires that we distribute all of
our available cash quarterly (after deducting expenses,
including estimated maintenance and replacement capital
expenditures and reserves).
Limitations
on Cash Distributions and Our Ability to Change Our Cash
Distribution Policy
There is no guarantee that unitholders will receive quarterly
distributions from us. Our distribution policy is subject to
certain restrictions and may be changed at any time, including:
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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.
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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. Upon the closing of the IPO,
Navios Holdings did not own any of our outstanding common units
and owned 100.0% of our outstanding subordinated units.
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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.
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Under Section 51 of the Marshall Islands Limited
Partnership Act, we may not make a distribution to our
unitholders if the distribution would cause our liabilities to
exceed the fair value of our assets.
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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.
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Our distribution policy is affected by restrictions on
distributions under our existing revolving credit facility that
we entered into in connection with the closing of the IPO.
Specifically, our revolving credit facility contains material
financial tests that must be satisfied and we will not pay any
distributions that will cause us to violate our credit facility
or other debt instruments. Should we be unable to satisfy these
restrictions included in our credit facility or if we are
otherwise in default under our credit facility, our ability to
make cash distributions to unitholders, notwithstanding our cash
distribution policy, would be materially adversely affected.
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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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Our ability to make distributions to our unitholders depends on
the performance of our subsidiaries and their ability to
distribute funds to us. The ability of our subsidiaries to make
distributions to us may be restricted by, among other things,
the provisions of existing and future indebtedness, applicable
partnership and limited liability company laws and other laws
and regulations.
Minimum
Quarterly Distribution
We intend to distribute to the holders of common units and
subordinated units on a quarterly basis at least the minimum
quarterly distribution of $0.35 per unit, or $1.40 per unit per
year, to the extent we have sufficient cash on hand to pay the
distribution after we establish cash reserves and pay fees and
expenses. The amount of available cash from operating surplus
needed to pay the minimum quarterly distribution for four
quarters on all units outstanding and the related distribution
on the 2.0% general partner interest is approximately
$30.4 million. There is no guarantee that we will pay the
minimum quarterly distribution on the
88
common units and subordinated units in any quarter. Even if our
cash distribution policy is not modified or revoked, the amount
of distributions paid under our policy and the decision to make
any distribution is determined by our board of directors, taking
into consideration the terms of our partnership agreement. We
are prohibited from making any distributions to unitholders if
it would cause an event of default, or an event of default is
existing, under our the existing revolving credit agreement.
During the year ended December 31, 2008 the aggregate
amount of cash distribution paid was $24.6 million.
On January 21, 2009, the board of directors of Navios
Partners authorized its quarterly cash distribution for the
three month period ended December 31, 2008 of $0.40 per
unit. The distribution was paid on February 9, 2009 to all
holders of record of common, subordinated and general partner
units on February 12, 2009. The aggregate amount of the
paid distribution was $8.7 million.
Subordination
period
During the subordination period the common units have the right
to receive distributions of available cash from operating
surplus in an amount equal to the minimum quarterly distribution
of $0.35 per unit, plus any arrearages in the payment of the
minimum quarterly distribution on the common units from prior
quarters, before any distributions of available cash from
operating surplus may be made on the subordinated units.
Distribution arrearages do not accrue on the subordinated units.
The purpose of the subordinated units is to increase the
likelihood that during the subordination period there will be
available cash to be distributed on the common units.
Incentive
Distribution Rights
Incentive distribution rights represent the right to receive an
increasing percentage of quarterly distributions of available
cash from operating surplus after the minimum quarterly
distribution and the target distribution levels have been
achieved. Our General Partner currently holds the incentive
distribution rights, but may transfer these rights separately
from its general partner interest, subject to restrictions in
the partnership agreement. Except for transfers of incentive
distribution rights to an affiliate or another entity as part of
our General Partners merger or consolidation with or into,
or sale of substantially all of its assets to such entity, the
approval of a majority of our common units (excluding common
units held by our General Partner and its affiliates), voting
separately as a class, generally is required for a transfer of
the incentive distribution rights to a third party prior to
December 31, 2017.
The following table illustrates the percentage allocations of
the additional available cash from operating surplus among the
unitholders and our general partner up to the various target
distribution levels. The amounts set forth under Marginal
Percentage Interest in Distributions are the percentage
interests of the unitholders and our General Partner in any
available cash from operating surplus we distribute up to and
including the corresponding amount in the column Total
Quarterly Distribution Target Amount, until available cash
from operating surplus we distribute reaches the next target
distribution level, if any. The percentage interests shown for
the unitholders and our general partner for the minimum
quarterly distribution are also applicable to quarterly
distribution amounts that are less than the minimum quarterly
distribution. The percentage interests shown for our general
partner assume that our general partner maintains its 2.0%
general partner interest and assume our general partner has not
transferred the incentive distribution rights.
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Marginal Percentage
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Interest in Distributions
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Common and
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Total Quarterly Distribution
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Subordinated
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General
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Target Amount
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Unitholders
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Partner
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Minimum Quarterly Distribution
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$0.35
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98
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%
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2
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%
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First Target Distribution
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up to $0.4025
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98
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%
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2
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%
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Second Target Distribution
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above $0.4025 up to $0.4375
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85
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%
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15
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%
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Third Target Distribution
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above $0.4375 up to $0.525
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75
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%
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25
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%
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Thereafter
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above $0.525
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50
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%
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50
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%
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89
No significant changes have occurred since the date of the
annual financial statements included herein.
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Item 9.
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The
Offer and Listing
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Our common units are traded on the New York Stock Exchange (or
NYSE) under the symbol NMM. The following
table sets forth the high and low closing sales prices for our
common units on the NYSE for each of the periods indicated:
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Price Range
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High
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Low
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Year Ended:
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December 31, 2008
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$
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18.85
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$
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3.36
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December 31, 2007*
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$
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19.45
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$
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17.40
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Quarter Ended:
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March 31, 2009 (through February 25, 2009)
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$
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8.54
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$
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6.39
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December 31, 2008
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$
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8.08
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$
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3.36
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September 30, 2008
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$
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14.35
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$
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6.97
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June 30, 2008
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$
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16.74
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$
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13.76
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March 31, 2008
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$
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18.85
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$
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13.83
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December 31, 2007*
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$
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19.45
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$
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17.40
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Month Ended:
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February 28, 2009 (through February 25, 2009)
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$
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8.54
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$
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6.40
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January 31, 2009
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$
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8.49
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$
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6.39
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December 31, 2008
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$
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7.14
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$
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4.13
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November 30, 2008
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$
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7.74
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$
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3.36
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October 31, 2008
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$
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8.08
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$
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4.96
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September 30, 2008
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$
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12.86
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$
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6.97
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(*)
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Period beginning November 13,
2007
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Item 10.
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Additional
Information
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Not applicable.
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B.
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Memorandum
and Articles of Association
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The information required to be disclosed under Item 10.B is
incorporated by reference to the following sections of the
prospectus included in our Registration Statement on
Form F-1
filed with the SEC on November 14, 2007: The
Partnership Agreement, Description of the Common
Units The Units, Conflicts of Interest and
Fiduciary Duties, How we make Cash
Disrtributions and Our Cash Distribution Policy and
Restrictions on Distributions.
The following is a summary of each material contract, other than
material contracts entered into in the ordinary course of
business, to which we or any of our subsidiaries is a party, for
the two years immediately preceding the date of this Annual
Report, each of which is included in the list of exhibits in
Item 19. Please read Item 5. Operating and
Financial Review and Prospects - Trends and Factors Affecting
Our Future Results of Operations Liquidity and
Capital Resources Revolving Credit Facility
for a summary of certain contract terms
90
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Agreement, dated November 15, 2007 for a $260,000,000
Revolving Credit Facility between Navios Maritime Partners L.P.,
Commerzbank AG and DVB Bank AG.
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Supplemental Agreement dated June 25, 2008, by and among
Navios, Commerzbank AG and DVB Bank AG relating to the credit
facility dated November 15, 2007.
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Supplemental Agreement dated January 30, 2009, by and among
Navios, Commerzbank AG and DVB Bank AG relating to the credit
facility dated November 15, 2007 (as amended by an
agreement dated June 25, 2008) for a loan facility of
up to US$295,000,000
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Omnibus Agreement with Navios Holdings, Navios Operating LLC and
Navios GP L.L.C. dated November 16, 2007. Please read
Item 7. Major Unitholders and Related Party
Transactions for a summary of certain contract terms.
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Management Agreement with Navios ShipManagement dated
November 16, 2007. Please read Item 7. Major
Unitholders and Related Party Transactions for a summary
of certain contract terms.
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Administrative Services Agreement with Navios ShipManagement
dated November 16, 2007. Please read Item 7.
Major Unitholders and Related Party Transactions for a
summary of certain contract terms.
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First Contribution and Conveyance Agreement with Navios GP
L.L.C., Navios Operating LLC and Navios Maritime Holdings dated
November 16, 2007. Please read Item 7. Major
Unitholders and Related Party Transactions for a summary
of certain contract terms.
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Second Contribution and Conveyance Agreement with Navios GP
L.L.C., Navios Operating LLC and Navios Maritime Holdings Inc.
dated November 16, 2007. Please read Item 7. Major
Unitholders and Related Party Transactions for a summary
of certain contract terms.
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Share Purchase Agreement for Navios TBN I dated
November 16, 2007. Please read Item 7. Major
Unitholders and Related Party Transactions for a summary
of certain contract terms.
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Share Purchase Agreement for Navios TBN II dated
November 16, 2007. Please read Item 7. Major
Unitholders and Related Party Transactions for a summary
of certain contract terms.
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Common Unit Purchase Agreement between Navios Maritime Partners
L.P. and Amadeus Maritime S.A. dated November 16, 2007.
Please read Item 7. Major Unitholders and Related
Party Transactions for a summary of certain contract terms.
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Share Purchase Agreement for Navios Aurora I dated
April 30, 2008. Please read Item 7. Major
Unitholders and Related Party Transactions for a summary
of certain contract terms.
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Registration Rights Agreement dated April 30, 2008. Please
read Item 7. Major Unitholders and Related Party
Transactions for a summary of certain contract terms.
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D.
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Exchange
controls and other limitations affecting
Unitholders
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We are not aware of any governmental laws, decrees or
regulations, including foreign exchange controls, in the
Republic of The Marshall Islands that restrict the export or
import of capital, or that affect the remittance of dividends,
interest or other payments to non-resident holders of our
securities.
We are not aware of any limitations on the right of non-resident
or foreign owners to hold or vote our securities imposed by the
laws of the Republic of the Marshall Islands or our Certificate
of Formation and Limited Partnership Agreement.
91
MATERIAL
U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following is a discussion of the material U.S. federal
income tax considerations that may be relevant to prospective
unitholders and, unless otherwise noted in the following
discussion, is the opinion of Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C., our U.S. counsel, insofar as
it relates to matters of U.S. federal income tax law and
legal conclusions with respect to those matters. The opinion of
our counsel is dependent on the accuracy of representations made
by us to them, including descriptions of our operations
contained herein.
This discussion is based upon provisions of the Code, Treasury
Regulations, and current administrative rulings and court
decisions, all as in effect or in existence on the date of this
prospectus and all of which are subject to change, possibly with
retroactive effect. Changes in these authorities may cause the
tax consequences of unit ownership to vary substantially from
the consequences described below. Unless the context otherwise
requires, references in this section to we,
our or us are references to Navios
Maritime Partners L.P.
The following discussion applies only to beneficial owners of
common units that own the common units as capital
assets (generally, for investment purposes). The following
discussion does not comment on all aspects of U.S. federal
income taxation which may be important to particular unitholders
in light of their individual circumstances, such as unitholders
subject to special tax rules (e.g., banks or other financial
institutions, insurance companies, broker-dealers, tax-exempt
organizations and retirement plans, individual retirement
accounts and tax-deferred accounts, or former citizens or
long-term residents of the United States) or to persons that
will hold the units as part of a straddle, hedge, conversion,
constructive sale, or other integrated transaction for
U.S. federal income tax purposes, to partnerships or other
entities classified as partnerships for U.S. federal income
tax purposes or their partners or to persons that have a
functional currency other than the U.S. dollar, all of whom
may be subject to tax rules that differ significantly from those
summarized below. If a partnership or other entity classified as
a partnership for U.S. federal income tax purposes holds
our common units, the tax treatment of its partners generally
will depend upon the status of the partner and the activities of
the partnership. If you are a partner in a partnership holding
our common units, you should consult your own tax advisor
regarding the tax consequences to you of the partnerships
ownership of our common units.
No ruling has been or will be requested from the IRS regarding
any matter affecting us or prospective unitholders. The opinions
and statements made herein may be challenged by the IRS and, if
so challenged, may not be sustained upon review in a court.
This discussion does not contain information regarding any
U.S. state or local, estate, gift or alternative minimum
tax considerations concerning the ownership or disposition of
common units. Each prospective unitholder is urged to consult
its own tax advisor regarding the U.S. federal, state,
local, and other tax consequences of the ownership or
disposition of common units.
Election
to be Treated as a Corporation
We have elected to be treated as a corporation for
U.S. federal income tax purposes. Consequently, among other
things, U.S. Holders (as defined below) will not directly
be subject to U.S. federal income tax on their shares of
our income, but rather will be subject to U.S. federal
income tax on distributions received from us and dispositions of
units as described below.
U.S.
Federal Income Taxation of U.S. Holders
As used herein, the term U.S. Holder means a
beneficial owner of our common units that owns less than 10.0%
of our common units and that:
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is an individual U.S. citizen or resident (as determined
for U.S. federal income tax purposes),
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92
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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,
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an estate the income of which is subject to U.S. federal
income taxation regardless of its source, or
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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 Treasury
Regulations to be treated as a U.S. person.
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Distributions
Subject to the discussion below of the rules applicable to
passive foreign investment companies, or PFICs, any
distributions to a U.S. Holder made by us with respect to
our common units generally will constitute dividends, which will
be taxable as ordinary income or qualified dividend
income as described in more detail below, to the extent of
our current and accumulated earnings and profits, as determined
under U.S. federal income tax principles. Distributions in
excess of our earnings and profits will be treated first as a
nontaxable return of capital to the extent of the
U.S. Holders tax basis in its common units and
thereafter as capital gain, which will be either long-term or
short-term capital gain depending upon whether the
U.S. Holder held the common units for more than one year.
U.S. Holders that are corporations generally will not be
entitled to claim a dividend received deduction with respect to
distributions they receive from us. For U.S. foreign tax
credit purposes, dividends received with respect to the common
units will be treated as foreign source income and generally
will be treated as passive category income.
Dividends received with respect to our common units by a
U.S. Holder who is an individual, trust or estate (a
U.S. Individual Holder) generally will be
treated as qualified dividend income that is taxable
to such U.S. Individual Holder at preferential capital gain
tax rates (through 2010), provided that: (i) our common
units are readily tradable on an established securities market
in the United States (such as the New York Stock Exchange on
which we expect our common units to be traded); (ii) we are
not a PFIC for the taxable year during which the dividend is
paid or the immediately preceding taxable year (which we do not
believe we are, have been or will be, as discussed below);
(iii) the U.S. Individual Holder has owned the common
units for more than 60 days during the
121-day
period beginning 60 days before the date on which the
common units become ex-dividend (and has not entered into
certain risk limiting transactions with respect to such common
units); and (iv) the U.S. Individual Holder is not
under an obligation to make related payments with respect to
positions in substantially similar or related property. Any
dividends paid on our common units that are not eligible for
these preferential rates will be taxed as ordinary income to a
U.S. Individual Holder. In the absence of legislation
extending the term of the preferential tax rates for qualified
dividend income, all dividends received by a taxpayer in tax
years beginning on or after January 1, 2011, will be taxed
at rates applicable to ordinary income.
Special rules may apply to any amounts received in respect of
our common units that are treated as extraordinary
dividends. In general, an extraordinary dividend is a
dividend with respect to a common unit that is equal to or in
excess of 10.0% of a unitholders adjusted tax basis (or
fair market value upon the unitholders election) in such
common unit. In addition, extraordinary dividends include
dividends received within a one year period that, in the
aggregate, equal or exceed 20.0% of a unitholders adjusted
tax basis (or fair market value). If we pay an
extraordinary dividend on our common units that is
treated as qualified dividend income, then any loss
recognized by a U.S. Individual Holder from the sale or
exchange of such common units will be treated as long-term
capital loss to the extent of the amount of such dividend.
In addition, under legislation proposed in the
U.S. Congress, the preferential rate of federal income tax
currently imposed on qualified dividend income would be denied
with respect to dividends received from a
non-U.S. corporation,
if the
non-U.S. corporation
is created or organized under the laws of a foreign country that
does not have a comprehensive income tax system. Because the
Marshall Islands imposes only limited taxes on corporations
organized under its laws, it is likely that, if this legislation
were enacted, the preferential tax rates imposed on qualified
dividend income would no longer be applicable to dividends
received from us. Legislation has also been proposed that, if
enacted, would limit the preferential tax rate to dividends paid
on
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or before December 31, 2008. Any dividends paid on our
common units that are not eligible for these preferential rates
will be taxed as ordinary income to a U.S. Individual
Holder. As of the date hereof, it is not possible to predict
with any certainty whether any of this legislation will be
enacted.
Sale,
Exchange or other Disposition of Common Units
Subject to the discussion of PFICs below, a U.S. Holder
generally will recognize capital gain or loss upon a sale,
exchange or other disposition of our units in an amount equal to
the difference between the amount realized by the
U.S. Holder from such sale, exchange or other disposition
and the U.S. Holders adjusted tax basis in such
units. The U.S. Holders initial tax basis in the
common units generally will be the U.S. Holders
purchase price for the common units and that tax basis will be
reduced (but not below zero) by the amount of any distributions
on the common units that are treated as non-taxable returns of
capital (Please read Material U.S. Federal Income Tax
Considerations U.S. Federal Income Taxation of
U.S. Holders Distributions). Such gain or
loss will be treated as long-term capital gain or loss if the
U.S. Holders holding period is greater than one year
at the time of the sale, exchange or other disposition. Certain
U.S. Holders (including individuals) may be eligible for
preferential rates of U.S. federal income tax in respect of
long-term capital gains. A U.S. Holders ability to
deduct capital losses is subject to limitations. Such capital
gain or loss generally will be treated as U.S. source
income or loss, as applicable, for U.S. foreign tax credit
purposes.
PFIC
Status and Significant Tax Consequences
In general, we will be treated as a PFIC with respect to a
U.S. Holder if, for any taxable year in which the holder
held our common units, either:
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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
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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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Income earned, or deemed earned, by us in connection with the
performance of services would not constitute passive income. By
contrast, rental income generally would constitute passive
income unless we were treated as deriving our rental
income in the active conduct of a trade or business under the
applicable rules.
Based on our current and projected methods of operation, and an
opinion of counsel, we believe that we will not be a PFIC with
respect to any taxable year. Our U.S. counsel, Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C., is of the
opinion that (1) the income we receive from time chartering
activities and assets engaged in generating such income should
not be treated as passive income or assets, respectively, and
(2) so long as our income from time charters exceeds 25% of
our gross income for each taxable year after our initial taxable
year and the value of our vessels contracted under time charters
exceeds 50% of the average value of our assets for each taxable
year after our initial taxable year, we should not be a PFIC.
This opinion is based on representations and projections
provided to our counsel by us regarding our assets, income and
charters, and its validity is conditioned on the accuracy of
such representations and projections.
Our counsels opinion is based principally on its
conclusion that, for purposes of determining whether we are a
PFIC, the gross income we derive or are deemed to derive from
the time chartering activities of our wholly owned subsidiaries
should constitute services income, rather than rental income.
Correspondingly, such income should not constitute passive
income, and the assets that we or our subsidiaries own and
operate in connection with the production of such income, in
particular, the vessels we or our subsidiaries own that are
subject to time charters, should not constitute passive assets
for purposes of determining whether we are or have been a PFIC.
We expect that all of the vessels in our fleet will be engaged
in time chartering activities and intend to treat our income
from those activities as non-passive income, and the vessels
engaged in those activities as non-passive assets, for PFIC
purposes.
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Our counsel believes that there is substantial legal authority
supporting our position consisting of the Code, legislative
history, case law and IRS pronouncements concerning the
characterization of income derived from time charters as
services income. However, there is no legal authority directly
on point, and we are not obtaining a ruling from the IRS on this
issue. The opinion of our counsel is not binding on the IRS or
any court. Thus, while we have received an opinion of our
counsel in support of our position, there is a possibility that
the IRS or a court could disagree with this position and the
opinion of our counsel. Although we intend to conduct our
affairs in a manner to avoid being classified as a PFIC with
respect to any taxable year, we cannot assure you that the
nature of our operations will not change in the future.
As discussed more fully below, if we were to be treated as a
PFIC for any taxable year, a U.S. Holder would be subject
to different taxation rules depending on whether the
U.S. Holder makes an election to treat us as a
Qualified Electing Fund, which we refer to as a
QEF election. As an alternative to making a QEF
election, a U.S. Holder should be able to make a
mark-to-market election with respect to our common
units, as discussed below.
Taxation
of U.S. Holders Making a Timely QEF Election
If a U.S. Holder makes a timely QEF election (an
Electing Holder), he must report for
U.S. federal income tax purposes his pro rata share of our
ordinary earnings and net capital gain, if any, for our taxable
years that end with or within his taxable year, regardless of
whether or not the Electing Holder received distributions from
us in that year. The Electing Holders adjusted tax basis
in the common units will be increased to reflect taxed but
undistributed earnings and profits. Distributions of earnings
and profits that were previously taxed will result in a
corresponding reduction in the Electing Holders adjusted
tax basis in common units and will not be taxed again once
distributed. An Electing Holder generally will recognize capital
gain or loss on the sale, exchange or other disposition of our
common units. A U.S. Holder makes a QEF election with
respect to any year that we are a PFIC by filing IRS
Form 8621 with his U.S. federal income tax return. If
contrary to our expectations, we determine that we are treated
as a PFIC for any taxable year, we will provide each
U.S. Holder with the information necessary to make the QEF
election described above.
Taxation
of U.S. Holders Making a Mark-to-Market
Election
If we were to be treated as a PFIC for any taxable year and, as
we anticipate, our units were treated as marketable
stock, then, as an alternative to making a QEF election, a
U.S. Holder would be allowed to make a
mark-to-market election with respect to our common
units, provided the U.S. Holder completes and files IRS
Form 8621 in accordance with the relevant instructions and
related Treasury Regulations. If that election is made, the
U.S. Holder generally would include as ordinary income in
each taxable year the excess, if any, of the fair market value
of the U.S. Holders common units at the end of the
taxable year over the holders adjusted tax basis in the
common units. The U.S. Holder also would be permitted an
ordinary loss in respect of the excess, if any, of the
U.S. Holders adjusted tax basis in the common units
over the fair market value thereof at the end of the taxable
year, but only to the extent of the net amount previously
included in income as a result of the mark-to-market election. A
U.S. Holders tax basis in his common units would be
adjusted to reflect any such income or loss recognized. Gain
recognized on the sale, exchange or other disposition of our
common units would be treated as ordinary income, and any loss
recognized on the sale, exchange or other disposition of the
common units would be treated as ordinary loss to the extent
that such loss does not exceed the net mark-to-market gains
previously included in income by the U.S. Holder.
Taxation
of U.S. Holders Not Making a Timely QEF or Mark-to-Market
Election
If we were to be treated as a PFIC for any taxable year, a
U.S. Holder who does not make either a QEF election or a
mark-to-market election for that year (a
Non-Electing Holder,) would be subject to special
rules resulting in increased tax liability with respect to
(1) any excess distribution (i.e., the portion of any
distributions received by the Non-Electing Holder on our common
units in a taxable year in excess of 125% of the average annual
distributions received by the Non-Electing Holder in the three
preceding taxable years, or,
95
if shorter, the Non- Electing Holders holding period for
the common units), and (2) any gain realized on the sale,
exchange or other disposition of the units. Under these special
rules:
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the excess distribution or gain would be allocated ratably over
the Non-Electing Holders aggregate holding period for the
common units;
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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
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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.
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These penalties would not apply to a qualified pension, profit
sharing or other retirement trust or other tax-exempt
organization that did not borrow money or otherwise utilize
leverage in connection with its acquisition of our common units.
If we were treated as a PFIC for any taxable year and a
Non-Electing Holder who is an individual dies while owning our
common units, such holders successor generally would not
receive a
step-up in
tax basis with respect to such units.
U.S.
Federal Income Taxation of
Non-U.S.
Holders
A beneficial owner of our common units (other than a partnership
or an entity or arrangement treated as a partnership for
U.S. federal income tax purposes) that is not a
U.S. Holder is a
Non-U.S. Holder.
If you are a partner in a partnership (or an entity or
arrangement treated as a partnership for U.S. federal
income tax purposes) holding our common units, you should
consult your own tax advisor regarding the tax consequences to
you of the partnerships ownership of our common units.
Distributions
Distributions we pay to a
Non-U.S. Holder
will not be subject to U.S. federal income tax or
withholding tax if the
Non-U.S. Holder
is not engaged in a U.S. trade or business. If the
Non-U.S. Holder
is engaged in a U.S. trade or business, our distributions
will be subject to U.S. federal income tax to the extent
they constitute income effectively connected with the
Non-U.S. Holders
U.S. trade or business. However, distributions paid to a
Non-U.S. Holder
who is engaged in a trade or business may be exempt from
taxation under an income tax treaty if the income arising from
the distribution is not attributable to a U.S. permanent
establishment maintained by the
Non-U.S. Holder.
Disposition
of Units
In general, a
Non-U.S. Holder
is not subject to U.S. federal income tax or withholding
tax on any gain resulting from the disposition of our common
units provided the
Non-U.S. Holder
is not engaged in a U.S. trade or business. A
Non-U.S. Holder
that is engaged in a U.S. trade or business will be subject
to U.S. federal income tax in the event the gain from the
disposition of units is effectively connected with the conduct
of such U.S. trade or business (provided, in the case of a
Non-U.S. Holder
entitled to the benefits of an income tax treaty with the United
States, such gain also is attributable to a U.S. permanent
establishment). However, even if not engaged in a
U.S. trade or business, individual
Non-U.S. Holders
may be subject to tax on gain resulting from the disposition of
our common units if they are present in the United States for
183 days or more during the taxable year in which those
units are disposed and meet certain other requirements.
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Backup
Withholding and Information Reporting
In general, payments to a non-corporate U.S. Holder of
distributions or the proceeds of a disposition of common units
will be subject to information reporting. These payments to a
non-corporate U.S. Holder also may be subject to backup
withholding, if the non-corporate U.S. Holder:
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fails to provide an accurate taxpayer identification number;
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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
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in certain circumstances, fails to comply with applicable
certification requirements.
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Non-U.S. Holders
may be required to establish their exemption from information
reporting and backup withholding by certifying their status on
IRS
Form W-8BEN,
W-8ECI or
W-8IMY, as
applicable.
Backup withholding is not an additional tax. Rather, a
unitholder generally may obtain a credit for any amount withheld
against his liability for U.S. federal income tax (and
obtain a refund of any amounts withheld in excess of such
liability) by filing a U.S. federal income tax return with
the IRS.
Tax
Consequences of Ownership of Debt Securities
A description of the material federal income tax consequences of
the registration, ownership and disposition of debt securities
will be set forth in the prospectus supplement relating to the
offering of any debt securities.
NON-UNITED
STATES TAX CONSIDERATIONS
Marshall
Islands Tax Consequences
The following discussion is based upon the opinion of
Reeder & Simpson P.C., our counsel as to matters of
the laws of the Republic of the Marshall Islands, and the
current laws of the Republic of the Marshall Islands applicable
to persons who do not reside in, maintain offices in or engage
in business in the Republic of the Marshall Islands.
Because we and our subsidiaries do not and do not expect to
conduct business or operations in the Republic of the Marshall
Islands, and because all documentation related to this offering
will be executed outside of the Republic of the Marshall
Islands, under current Marshall Islands law you will not be
subject to Marshall Islands taxation or withholding on
distributions, including upon distribution treated as a return
of capital, we make to you as a unitholder. In addition, you
will not be subject to Marshall Islands stamp, capital gains or
other taxes on the purchase, ownership or disposition of common
units, and you will not be required by the Republic of the
Marshall Islands to file a tax return relating to your ownership
of common units.
EACH PROSPECTIVE UNITHOLDER IS URGED TO CONSULT HIS OWN TAX,
LEGAL AND OTHER ADVISORS REGARDING THE CONSEQUENCES OF OWNERSHIP
OF COMMON UNITS UNDER THE UNITHOLDERS PARTICULAR
CIRCUMSTANCES.
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F.
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Dividends
and paying agents
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Not applicable
Not applicable
We file reports and other information with the Securities and
Exchange Commission (SEC). These materials,
including this annual report and the accompanying exhibits, may
be inspected and copied at the
97
public facilities maintained by the Commission at
100 F Street, N.E., Washington, D.C. 20549, or
from the SECs website
http://www.sec.gov.
You may obtain information on the operation of the public
reference room by calling 1 (800) SEC-300 and you
may obtain copies at prescribed rates.
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I.
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Subsidiary
information
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Not applicable
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Item 11.
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Quantitative
and Qualitative Disclosures about Market Risks
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Foreign
Exchange Risk
Our functional and reporting currency is the U.S. Dollar.
We engage in worldwide commerce with a variety of entities.
Although our operations may expose us to certain levels of
foreign currency risk, our transactions are predominantly
U.S. dollar denominated. Transactions in currencies other
than U.S. Dollar are translated at the exchange rate in
effect at the date of each transaction. Differences in exchange
rates during the period between the date a transaction
denominated in a foreign currency is consummated and the date on
which it is either settled or translated, are recognized.
Expenses incurred in foreign currencies against which the
U.S. Dollar falls in value can increase thereby decreasing
our income or vice versa if the U.S. Dollar increases in
value. For example, during the year ended December 31, 2008
the value of U.S. Dollar increased by approximately 4.4% as
compared to the Euro.
Interest
Rate Risk
Borrowings under our credit facility bear interest at rate based
on a premium over U.S.$ LIBOR. Therefore, we are exposed to the
risk that our interest expense may increase if interest rates
rise. For the year ended December 31, 2008, we paid
interest on our outstanding debt at a weighted average interest
rate of 4.2%. A 1% increase in LIBOR would have increased our
interest expense for the year ended December 31, 2008 by
$2.1 million.
Concentration
of Credit Risk
Financial instruments, which potentially subject us to
significant concentrations of credit risk, consist principally
of trade accounts receivable. We closely monitor our exposure to
customers for credit risk. We have policies in place to ensure
that we trade with customers with an appropriate credit history.
For the year ended December 31, 2008, we have seven charter
counterparties and some of the major ones are Mitsui O.S.K.
Lines, Ltd., Cargill International S.A., The Sanko Steamship
Co.Ltd., Daiichi Chuo Kisen Kaisha and Augustea Imprese Maritime
accounted for approximately 28.2%, 22.2%, 15.6%, 11.9% and 9.7%
respectively, of total revenues. For the year ended
December 31, 2007, Cargill International S.A., The Sanko
Steamship Co.Ltd., Mitsui O.S.K. Lines, Ltd. and Augustea
Imprese Maritime accounted for approximately 30.2%, 22.0%, 17.7%
and 13.9% respectively, of total revenues and for the year ended
December 31, 2006, four customers (Cargill International
SA, Mitsui O.S.K. Lines, Ltd., American Bulk Transport, Inc. and
Cosco Bulk Carrier Co., Ltd.) accounted for 42.9%, 25.0%, 10.2%
and 10.1% of our revenue, respectively. Although we do not
obtain rights to collateral, we maintain counterparty insurance
which we re-assess on a quarterly basis to help reduce our
credit risk.
In addition we have insured each of our charter-out contracts,
for the length of the entire agreement, through a double
AA+ rated European Union governmental agency. If the
charterer goes into payment
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default under the terms of the policy the insurance company will
reimburse the losses for the remaining term of the charter-out
contract.
Inflation
Inflation has had a minimal impact on vessel operating expenses,
drydocking expenses and general and administrative expenses. Our
management does not consider inflation to be a significant risk
to direct expenses in the current and foreseeable economic
environment.
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Item 12.
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Description
of Securities Other than Equity Securities
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Not applicable.
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PART II
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Item 13.
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Defaults,
Dividend Arrearages and Delinquencies
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None.
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Item 14.
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Material
Modifications to the Rights of Unitholders and Use of
Proceeds
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None
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Item 15.
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Controls
and Procedures
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A.
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Disclosure
Controls and Procedures
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The management of Navios Partners, with the participation of the
Chief Executive Officer and Chief Financial Officer, conducted
an evaluation, pursuant to
Rule 13a-15
promulgated under the Securities Act of 1934, as amended (the
Exchange Act), of the effectiveness of our
disclosure controls and procedures as of December 31, 2008.
Based on this evaluation, the Chief Executive Officer and Chief
Financial Officer concluded that the disclosure controls and
procedures were effective as of December 31, 2008.
Disclosure controls and procedures means controls and other
procedures that are designed to ensure that information required
to be disclosed by us in the reports that we file or submit
under the Exchange Act is recorded, processed, summarized and
reported, within the time periods specified in the
Commissions rules and forms and that such information
required to be disclosed by us in the reports that we file or
submit under the Exchange Act is accumulated and communicated to
our management, including our principal executive and principal
financial officers, or persons performing similar functions, as
appropriate to allow timely decisions regarding required
disclosures.
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B.
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Managements
annual report on internal control over financial
reporting
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The management of Navios Partners is responsible for
establishing and maintaining adequate internal control over
financial reporting as defined in
Rule 13a-15(f)
or 15d-15(f)
of the Exchange Act. Navios Partners internal control
system was designed to provide reasonable assurance to Navios
Partners management and Board of Directors regarding the
preparation and fair presentation of published financial
statements.
All internal control systems, no matter how well designed, have
inherent limitations. Therefore, even those systems determined
to be effective can provide only reasonable assurance with
respect to financial statement preparation and presentation.
Navios Partners management assessed the effectiveness of
Navios Partners internal control over financial reporting
as of December 31, 2008. In making this assessment, it used
the criteria set forth by the Committee of Sponsoring
Organizations of the Treadway Commission (COSO) in Internal
Control Integrated Framework. Based on its
assessment, management believes that, as of December 31,
2008, Navios Partners internal control over financial
reporting is effective based on those criteria.
Navios Partners independent registered public accounting
firm has issued an attestation report on Navios Partners
internal control over financial reporting.
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C.
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Attestation
report of the registered public accounting firm
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Navios Partners independent registered public accounting
firm has issued an audit report on Navios Partners
internal control over financial reporting. This report appears
on
Page F-2
of the consolidated financial statements.
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D.
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Changes
in internal control over financial reporting
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There have been no changes in internal controls over financial
reporting (identified in connection with managements
evaluation of such internal controls over financial reporting)
that occurred during the year covered by this annual report that
have materially affected, or are reasonably likely to materially
affect, Navios Partners internal controls over financial
reporting.
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Item 16A.
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Audit
Committee Financial Expert
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Navios Partners Audit Committee consists of three
independent directors, Leonidas Korres, Efstathios Loizos and
John Karakadas. The Board of Directors has determined that
Efstathios Loizos qualifies as an audit committee
financial expert as defined in the instructions of
Item 16A of
Form 20-F.
Mr Loizos is a CPA and is independent under applicable NYSE and
SEC standards.
Navios Partners has adopted a code of ethics applicable to
officers, directors and employees that complies with applicable
guidelines issued by the SEC. The Navios Partners Code of
Corporate Conduct and Ethics is available for review on Navios
Partners website at www.navios-mlp.com.
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Item 16C.
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Principal
Accountant Fees and Services
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Audit
Fees and Audit-Related Fees
Our principal Accountants for fiscal year 2008 and 2007 were
PricewaterhouseCoopers S.A. The audit fees for the audit of the
year ended December 31, 2008 was $0.3 million and the
audit related fees were $nil. The audit fees for the audit of
the year ended December 31, 2007 was $0.3 million and
the audit related fees for the Navios Partners IPO and the
related financial statements were $0.6 million. There was
no tax, audit related, or other fees billed in 2008 and 2007.
Audit
Committee
The Audit Committee is responsible for the appointment,
replacement, compensation, evaluation and oversight of the work
of the independent auditors. As part of this responsibility, the
audit committee pre-approves the audit and non-audit services
performed by the independent auditors in order to assure that
they do not impair the auditors independence from Navios
Partners. The Audit Committee has adopted a policy which sets
forth the procedures and the conditions pursuant to which
services proposed to be performed by the independent auditors
may be pre-approved.
The Audit Committee separately pre-approved all engagements and
fees paid to our principal accountant in 2008.
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Item 16D.
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Exemptions
from the Listing Standards for Audit Committees
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Not applicable.
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Item 16E.
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Purchases
of Units by the Issuer and Affiliated Purchasers
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On November 16, 2007, in connection with the IPO,
(a) Navios Holdings acquired 7,621,843 subordinated units,
representing 41.2% limited partner interest in us, and
(b) Angeliki Frangou through Amadeus Maritime S.A., a
corporation owned by her, acquired 500,000 common units
representing a 2.8% limited partnership interest in us. In
addition our general partner which Navios Holdings owns and
controls owns a 2.0% general partner interest in us and all the
incentive distribution rights.
On July 1, 2008 Navios Partners issued 3,131,415 common
units to Navios Holdings for the acquisition of Navios
Aurora I, and 63,906 general partnership units to the
General Partner in exchange for the contribution received to
maintain its 2% general partner interest in Navios Partners.
Currently, Navios Holdings holds 7,621,843 subordinated units
and 3,131,415 common units representing a 49.6% limited
101
partner interest in us, whereas the 500,000 common units held by
Angeliki Frangou through Amadeus Maritime S.A represent a 2.3%
limited partnership interest in us, based on all outstanding
common, subordinated and general partner units.
Please read Item 7 Major Unitholders and
Related Party Transactions.
|
|
Item 16F.
|
Corporate
Governance
|
Pursuant to an exception for foreign private issuers, we are not
required to comply with the corporate governance practices
followed by U.S. companies under the NYSE listing
standards. However, we have voluntarily adopted all of the NYSE
required practices, except we do not have (i) a majority of
independent board members, (ii) a compensation committee
consisting of independent directors, (iii) a compensation
committee charter specifying the purpose and responsibilities of
the compensation committee, (iv) a nominating/governance
committee consisting of independent directors or (v) a
nominating/governance committee charter specifying the purpose
and responsibilities of the nominating/governance committee.
Instead, all compensation and nomination/governance decisions,
other than those nominating decisions dictated by our
Partnership Agreement, are currently made by a majority of our
independent board members.
|
|
Item 17.
|
Financial
Statements
|
Not applicable.
|
|
Item 18.
|
Financial
Statements
|
The financial information required by this Item together with
the related report of Pricewaterhousecoopers S.A, Independent
Registered Public Accounting Firm thereon is filed as part of
this annual report on
Page F-1
through F-29.
|
|
|
|
|
|
1
|
.1
|
|
Certificate of Limited Partnership of Navios Maritime Partners
L.P.(1)
|
|
1
|
.2
|
|
First Amended and Restated Agreement of Limited Partnership of
Navios Maritime Partners L.P.(1)
|
|
1
|
.3
|
|
Certificate of Formation of Navios GP L.L.C.(1)
|
|
1
|
.4
|
|
Limited Liability Company Agreement of Navios GP L.L.C.(1)
|
|
1
|
.5
|
|
Certificate of Formation of Navios Operating GP L.L.C.(1)
|
|
1
|
.6
|
|
Amended and Restated Limited Liability Company Agreement of
Navios GP L.L.C.(1)
|
|
1
|
.7
|
|
Limited Liability Company Agreement of Navios Operating GP
L.L.C.(1)
|
|
4
|
.1
|
|
Omnibus Agreement(1)
|
|
4
|
.2
|
|
Management Agreement with Navios ShipManagement(1)
|
|
4
|
.3
|
|
Administrative Services Agreement with Navios Maritime Holdings
Inc.(1)
|
|
4
|
.4
|
|
Form of First Contribution and Conveyance Agreement(1)
|
|
4
|
.5
|
|
Form of Second Contribution and Conveyance Agreement(1)
|
|
4
|
.6
|
|
Form of Share Purchase Agreement for Navios TBN I(1)
|
|
4
|
.7
|
|
Form of Share Purchase Agreement for Navios TBN II(1)
|
|
4
|
.8
|
|
Revolving Credit and Term Loan Facility Agreement(2)
|
|
4
|
.9
|
|
Common Unit Purchase Agreement between Navios Maritime Partners
L.P. and Amadeus Maritime S.A.(1)
|
|
4
|
.10
|
|
Share Purchase Agreement for Navios Aurora I(3)
|
|
4
|
.11
|
|
Registration Rights Agreement(3)
|
|
4
|
.12
|
|
Supplemental Agreement, dated June 15, 2008, to the
Facility Agreement(4)
|
|
4
|
.13
|
|
Supplemental Agreement, dated January 30, 2009, to the
Facility Agreement(5)
|
|
8
|
.1
|
|
List of Subsidiaries of Navios Maritime Partners L.P.
|
|
12
|
.1
|
|
Section 302 Certification of Chief Executive Officer
|
|
12
|
.2
|
|
Section 302 Certification of Chief Financial Officer
|
|
13
|
.1
|
|
Section 906 Certification of Chief Executive Officer and
Chief Executive Officer
|
|
23
|
.1
|
|
Consent of PricewaterhouseCoopers S.A.
|
102
|
|
|
(1)
|
|
Previously filed as an exhibit to
the Partnerships Registration Statement on
Form F-1,
as amended (File
No. 333-146972)
as filed with the SEC and hereby incorporated by reference to
the Annual Report.
|
|
(2)
|
|
Previously filed as an exhibit to a
Report on
Form 6-K
filed on November 26, 2007 and hereby incorporated by
reference.
|
|
(3)
|
|
Previously filed as an exhibit to a
Report on
Form 6-K
filed on July 2, 2008 and hereby incorporated by reference.
|
|
(4)
|
|
Previously filed as an exhibit to a
Report on
Form 6-K
filed on July 10, 2008 and hereby incorporated by reference.
|
|
(5)
|
|
Previously filed as an exhibit to a
Report on
Form 6-K
filed on February 25, 2009 and hereby incorporated by
reference.
|
103
SIGNATURES
Navios Maritime Partners L.P., hereby certifies that it meets
all of the requirements for filing on
Form 20-F
and that it has duly caused and authorized the undersigned to
sign this Annual Report on its behalf.
Navios Maritime Partners L.P.
|
|
|
|
|
/s/ Angeliki Frangou
|
|
|
|
By:
|
|
Angeliki Frangou
|
Its:
|
|
Chairman and Chief Executive Officer
|
Date: February 26, 2009
INDEX TO
CONSOLIDATED FINANCIAL STATEMENTS
|
|
|
|
|
|
|
Page
|
|
NAVIOS MARITIME PARTNERS L.P.
|
|
|
|
|
|
|
|
F-2
|
|
|
|
|
F-3
|
|
|
|
|
F-4
|
|
|
|
|
F-5
|
|
|
|
|
F-6
|
|
|
|
|
F-7
|
|
F-1
REPORT OF
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Partners of
Navios Maritime Partners L.P.:
In our opinion, the accompanying consolidated balance sheets and
the related consolidated statements of income, changes in
owners net investment, partners capital and
comprehensive income/(loss) and cash flows present fairly, in
all material respects, the financial position of Navios Maritime
Partners L.P. and its subsidiaries (the Company) at
December 31, 2008 and 2007 and the results of their
operations and their cash flows for each of the three years in
the period ended December 31, 2008, in conformity with
accounting principles generally accepted in the United States of
America. Also in our opinion, the Company maintained, in all
material respects, effective internal control over financial
reporting as of December 31, 2008, based on criteria
established in Internal Control Integrated Framework
issued by the Committee of Sponsoring Organizations of the
Treadway Commission (COSO). The Companys management is
responsible for these financial statements, for maintaining
effective internal control over financial reporting and for its
assessment of the effectiveness of internal control over
financial reporting, included in Managements annual
report on internal control over financial reporting,
appearing in Item 15(b) of the Companys 2008 Annual
Report on
Form 20-F.
Our responsibility is to express opinions on these financial
statements and on the Companys internal control over
financial reporting based on our audits (which was an integrated
audit in 2008). We conducted our audits of these statements in
accordance with the standards of the Public Company Accounting
Oversight Board (United States). Those standards require that we
plan and perform the audits to obtain reasonable assurance about
whether the financial statements are free of material
misstatement and whether effective internal control over
financial reporting was maintained in all material respects. Our
audits of the financial statements included examining, on a test
basis, evidence supporting the amounts and disclosures in the
financial statements, assessing the accounting principles used
and significant estimates made by management, and evaluating the
overall financial statement presentation. Our audit of internal
control over financial reporting included obtaining an
understanding of internal control over financial reporting,
assessing the risk that a material weakness exists, and testing
and evaluating the design and operating effectiveness of
internal control based on the assessed risk. Our audits also
included performing such other procedures as we considered
necessary in the circumstances. We believe that our audits
provide a reasonable basis for our opinion.
A companys internal control over financial reporting is a
process designed to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with
generally accepted accounting principles. A companys
internal control over financial reporting includes those
policies and procedures that (i) pertain to the maintenance
of records that, in reasonable detail, accurately and fairly
reflect the transactions and dispositions of the assets of the
company; (ii) provide reasonable assurance that
transactions are recorded as necessary to permit preparation of
financial statements in accordance with generally accepted
accounting principles, and that receipts and expenditures of the
company are being made only in accordance with authorizations of
management and directors of the company; and (iii) provide
reasonable assurance regarding prevention or timely detection of
unauthorized acquisition, use, or disposition of the
companys assets that could have a material effect on the
financial statements.
Because of its inherent limitations, internal control over
financial reporting may not prevent or detect misstatements.
Also, projections of any evaluation of effectiveness to future
periods are subject to the risk that controls may become
inadequate because of changes in conditions, or that the degree
of compliance with the policies or procedures may deteriorate.
/s/ PricewaterhouseCoopers S.A.
Athens, Greece
February 26, 2009
F-2
NAVIOS
MARITIME PARTNERS L.P.
(Expressed in thousands of U.S. Dollars except unit data)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
December 31,
|
|
|
|
Notes
|
|
|
2007
|
|
|
2008
|
|
|
ASSETS
|
|
|
|
|
|
|
|
|
|
|
|
|
Current assets
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
|
4
|
|
|
$
|
10,095
|
|
|
$
|
28,374
|
|
Restricted cash
|
|
|
|
|
|
|
797
|
|
|
|
|
|
Accounts receivable, net
|
|
|
5
|
|
|
|
381
|
|
|
|
313
|
|
Prepaid expenses and other current assets
|
|
|
6
|
|
|
|
39
|
|
|
|
371
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current assets
|
|
|
|
|
|
|
11,312
|
|
|
|
29,058
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Vessels, net
|
|
|
7
|
|
|
|
135,976
|
|
|
|
291,340
|
|
Deferred financing costs, net
|
|
|
|
|
|
|
1,811
|
|
|
|
1,915
|
|
Deferred dry dock and special survey costs, net
|
|
|
|
|
|
|
1,171
|
|
|
|
594
|
|
Favorable lease terms
|
|
|
8
|
|
|
|
54,784
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total non-current assets
|
|
|
|
|
|
|
193,742
|
|
|
|
293,849
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
|
|
|
|
$
|
205,054
|
|
|
$
|
322,907
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND PARTNERS CAPITAL
|
|
|
|
|
|
|
|
|
|
|
|
|
Current liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable
|
|
|
10
|
|
|
$
|
570
|
|
|
$
|
594
|
|
Accrued expenses
|
|
|
9
|
|
|
|
1,431
|
|
|
|
1,662
|
|
Deferred voyage revenue
|
|
|
|
|
|
|
153
|
|
|
|
2,606
|
|
Amounts due to related parties
|
|
|
16
|
|
|
|
4,458
|
|
|
|
1,539
|
|
Current portion of long term debt
|
|
|
11
|
|
|
|
|
|
|
|
40,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities
|
|
|
|
|
|
|
6,612
|
|
|
|
46,401
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long term debt
|
|
|
11
|
|
|
|
165,000
|
|
|
|
195,000
|
|
Unfavorable lease terms
|
|
|
8
|
|
|
|
6,656
|
|
|
|
4,659
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total non-current liabilities
|
|
|
|
|
|
|
171,656
|
|
|
|
199,659
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities
|
|
|
|
|
|
|
178,268
|
|
|
|
246,060
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commitments and contingencies
|
|
|
14
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Partners capital:
|
|
|
|
|
|
|
|
|
|
|
|
|
Common Unitholders (10,500,000 and 13,631,415 units issued
and outstanding at December 31, 2007 and December 31,
2008, respectively)
|
|
|
|
|
|
|
194,265
|
|
|
|
243,639
|
|
Subordinated Unitholders (7,621,843 units issued and
outstanding at December 31, 2007 and December 31,
2008, respectively)
|
|
|
|
|
|
|
(159,759
|
)
|
|
|
(160,092
|
)
|
General Partner (369,834 and 433,740 units issued and
outstanding at December 31, 2007 and December 31,
2008, respectively)
|
|
|
|
|
|
|
(7,720
|
)
|
|
|
(6,700
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total partners capital
|
|
|
|
|
|
|
26,786
|
|
|
|
76,847
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and partners capital
|
|
|
|
|
|
$
|
205,054
|
|
|
$
|
322,907
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See notes to consolidated financial statements
F-3
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended
|
|
|
Year Ended
|
|
|
Year Ended
|
|
|
|
|
|
|
December 31,
|
|
|
December 31,
|
|
|
December 31,
|
|
|
|
Notes
|
|
|
2006
|
|
|
2007
|
|
|
2008
|
|
|
Time charter and voyage revenue
|
|
|
15
|
|
|
$
|
31,764
|
|
|
$
|
50,352
|
|
|
$
|
75,082
|
|
Loss on forward freight agreements
|
|
|
|
|
|
|
(2,923
|
)
|
|
|
|
|
|
|
|
|
Time charter and voyage expenses
|
|
|
|
|
|
|
(1,344
|
)
|
|
|
(8,352
|
)
|
|
|
(11,598
|
)
|
Direct vessel expenses
|
|
|
|
|
|
|
(5,626
|
)
|
|
|
(5,608
|
)
|
|
|
(578
|
)
|
Management fees
|
|
|
16
|
|
|
|
|
|
|
|
(920
|
)
|
|
|
(9,275
|
)
|
General and administrative expenses
|
|
|
16
|
|
|
|
(698
|
)
|
|
|
(1,419
|
)
|
|
|
(3,798
|
)
|
Depreciation and amortization
|
|
|
7,8
|
|
|
|
(8,250
|
)
|
|
|
(9,375
|
)
|
|
|
(11,865
|
)
|
Interest expense and finance cost, net
|
|
|
11
|
|
|
|
(6,286
|
)
|
|
|
(5,522
|
)
|
|
|
(9,216
|
)
|
Interest income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
301
|
|
Other income
|
|
|
|
|
|
|
61
|
|
|
|
93
|
|
|
|
23
|
|
Other expense
|
|
|
|
|
|
|
(74
|
)
|
|
|
(226
|
)
|
|
|
(318
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes
|
|
|
|
|
|
|
6,624
|
|
|
|
19,023
|
|
|
|
28,758
|
|
Deferred income tax
|
|
|
|
|
|
|
|
|
|
|
485
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
|
|
|
$
|
6,624
|
|
|
$
|
19,508
|
|
|
$
|
28,758
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings
per unit (see note 18):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended
|
|
|
Year Ended
|
|
|
Year Ended
|
|
|
|
December 31,
|
|
|
December 31,
|
|
|
December 31,
|
|
|
|
2006
|
|
|
2007
|
|
|
2008
|
|
|
Net Income
|
|
$
|
6,624
|
|
|
$
|
19,508
|
|
|
$
|
28,758
|
|
Consisting of net income attributable to:
|
|
|
|
|
|
|
|
|
|
|
|
|
Periods from November 16, 2007 to December 31, 2008
|
|
|
|
|
|
|
1,613
|
|
|
|
28,758
|
|
Periods from January 1, 2006 to November 15, 2007
|
|
|
6,624
|
|
|
|
17,895
|
|
|
|
|
|
Earnings per unit (periods from November 16, 2007 to
December 31, 2008) (see Note 18):
|
|
|
|
|
|
|
|
|
|
|
|
|
Common unit (basic and diluted)
|
|
|
|
|
|
$
|
0.15
|
|
|
$
|
1.56
|
|
Subordinated unit (basic and diluted)
|
|
|
|
|
|
$
|
|
|
|
$
|
1.22
|
|
General partner unit (basic and diluted)
|
|
|
|
|
|
$
|
0.09
|
|
|
$
|
1.53
|
|
Earnings per unit (periods from January 1, 2006 to
November 15, 2007) (see Note 18):
|
|
|
|
|
|
|
|
|
|
|
|
|
Common unit (basic and diluted)
|
|
$
|
|
|
|
$
|
|
|
|
|
|
|
Subordinated unit (basic and diluted)
|
|
$
|
0.85
|
|
|
$
|
2.30
|
|
|
|
|
|
General partner unit (basic and diluted)
|
|
$
|
0.36
|
|
|
$
|
0.97
|
|
|
|
|
|
Earnings per unit (periods from January 1, 2006 to
December 31, 2008) (see Note 18):
|
|
|
|
|
|
|
|
|
|
|
|
|
Common unit (basic and diluted)
|
|
$
|
|
|
|
$
|
0.15
|
|
|
$
|
1.56
|
|
Subordinated unit (basic and diluted)
|
|
$
|
0.85
|
|
|
$
|
2.30
|
|
|
$
|
1.22
|
|
General partner unit (basic and diluted)
|
|
$
|
0.36
|
|
|
$
|
1.06
|
|
|
$
|
1.53
|
|
See notes to consolidated financial statements
F-4
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended
|
|
|
Year Ended
|
|
|
Year Ended
|
|
|
|
|
|
|
December 31,
|
|
|
December 31,
|
|
|
December 31,
|
|
|
|
Note
|
|
|
2006
|
|
|
2007
|
|
|
2008
|
|
|
OPERATING ACTIVITIES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
|
|
|
$
|
6,624
|
|
|
$
|
19,508
|
|
|
$
|
28,758
|
|
Adjustments to reconcile net income to net cash provided by
operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization
|
|
|
7
|
|
|
|
8,252
|
|
|
|
9,375
|
|
|
|
11,865
|
|
Amortization and write-off of deferred financing cost
|
|
|
|
|
|
|
93
|
|
|
|
160
|
|
|
|
221
|
|
Amortization of deferred dry dock costs
|
|
|
|
|
|
|
465
|
|
|
|
608
|
|
|
|
578
|
|
Deferred taxation
|
|
|
|
|
|
|
|
|
|
|
(485
|
)
|
|
|
|
|
Provision for losses on accounts receivable
|
|
|
|
|
|
|
211
|
|
|
|
|
|
|
|
|
|
Changes in operating assets and liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Increase) decrease in restricted cash
|
|
|
|
|
|
|
|
|
|
|
(797
|
)
|
|
|
797
|
|
(Increase) decrease in accounts receivable
|
|
|
|
|
|
|
(123
|
)
|
|
|
(249
|
)
|
|
|
68
|
|
(Increase) decrease in prepaid expenses and other current assets
|
|
|
|
|
|
|
(680
|
)
|
|
|
986
|
|
|
|
(332
|
)
|
Increase (decrease) in accounts payable
|
|
|
|
|
|
|
639
|
|
|
|
(155
|
)
|
|
|
24
|
|
Increase in accrued expenses
|
|
|
|
|
|
|
130
|
|
|
|
870
|
|
|
|
231
|
|
Increase (decrease) in deferred voyage revenue
|
|
|
|
|
|
|
64
|
|
|
|
(725
|
)
|
|
|
2,453
|
|
Decrease in amounts due to related parties
|
|
|
|
|
|
|
(589
|
)
|
|
|
(17,731
|
)
|
|
|
(2,919
|
)
|
Payments for dry dock and special survey costs
|
|
|
|
|
|
|
(590
|
)
|
|
|
(849
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by operating activities
|
|
|
|
|
|
|
14,496
|
|
|
|
10,516
|
|
|
|
41,744
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
INVESTING ACTIVITIES:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Acquisition of vessels
|
|
|
7
|
|
|
|
(36,985
|
)
|
|
|
|
|
|
|
(69,505
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash used in investing activities
|
|
|
|
|
|
|
(36,985
|
)
|
|
|
|
|
|
|
(69,505
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FINANCING ACTIVITIES:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash distribution paid
|
|
|
18
|
|
|
|
|
|
|
|
|
|
|
|
(24,552
|
)
|
Proceeds from long term loan
|
|
|
11
|
|
|
|
36,960
|
|
|
|
165,000
|
|
|
|
70,000
|
|
Repayment of long term debt and payment of principal
|
|
|
11
|
|
|
|
(24,304
|
)
|
|
|
(2,291
|
)
|
|
|
|
|
Proceeds from issuance of common units, net of offering costs
|
|
|
|
|
|
|
|
|
|
|
192,684
|
|
|
|
|
|
Proceeds from issuance of general partners units
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
918
|
|
Cash contribution to Navios Holdings
|
|
|
|
|
|
|
|
|
|
|
(353,300
|
)
|
|
|
|
|
Debt issuance costs
|
|
|
|
|
|
|
(233
|
)
|
|
|
(2,514
|
)
|
|
|
(326
|
)
|
Owners investment
|
|
|
|
|
|
|
10,066
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in) financing activities
|
|
|
|
|
|
|
22,489
|
|
|
|
(421
|
)
|
|
|
46,040
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Increase in cash and cash equivalents
|
|
|
|
|
|
|
|
|
|
|
10,095
|
|
|
|
18,279
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents, beginning of year
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10,095
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents, end of year
|
|
|
|
|
|
$
|
|
|
|
$
|
10,095
|
|
|
$
|
28,374
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash paid for interest
|
|
|
|
|
|
$
|
6,164
|
|
|
$
|
3,996
|
|
|
$
|
9,022
|
|
Non-cash investing and financing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares issued by Navios Holdings in connection with vessel
acquisition
|
|
|
|
|
|
$
|
5,134
|
|
|
$
|
|
|
|
$
|
|
|
Contributions by Navios Holdings in the form of fair value
adjustments related to charter-in contracts (Navios Galaxy I in
2005 and Fantastiks in 2007)
|
|
|
|
|
|
$
|
|
|
|
$
|
50,579
|
|
|
$
|
|
|
Contributions from owner (net liability of business retained by
owner)
|
|
|
|
|
|
$
|
|
|
|
$
|
46,413
|
|
|
$
|
|
|
Issuance of common units to Navios Holdings related to the
acquisition of Navios Aurora I in July 2008
|
|
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
44,937
|
|
Unamortized portion of favorable lease terms and purchase option
capitalized to fixed assets related to the acquisition of Navios
Fantastiks
|
|
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
53,022
|
|
See notes to consolidated financial statements
F-5
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Limited Partners
|
|
|
Total Partners
|
|
|
Owners Net
|
|
|
|
|
|
Comprehensive
|
|
|
|
General Partner
|
|
|
Common Unitholders
|
|
|
Subordinated Unitholders
|
|
|
Capital
|
|
|
Investment
|
|
|
Total
|
|
|
Income/ (Loss)
|
|
|
|
Units
|
|
|
|
|
|
Units
|
|
|
|
|
|
Units
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance January 1, 2006
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
49,078
|
|
|
$
|
49,078
|
|
|
$
|
919
|
|
Net income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6,624
|
|
|
|
6,624
|
|
|
|
6,624
|
|
Owners Contribution:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Contributed cash in relation to vessel acquisition
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,570
|
|
|
|
4,570
|
|
|
|
|
|
Contributions in the form of shares issued in relation to vessel
acquisition
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5,134
|
|
|
|
5,134
|
|
|
|
|
|
Owners allocation of hedging loss
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5,496
|
|
|
|
5,496
|
|
|
|
|
|
Other comprehensive income / (loss):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
- Change in fair value of financial instruments
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(2,573
|
)
|
|
|
(2,573
|
)
|
- Reclassification to earnings
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,573
|
|
|
|
2,573
|
|
Total comprehensive income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6,624
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance December 31, 2006
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
|
|
|
$
|
70,902
|
|
|
$
|
70,902
|
|
|
$
|
6,624
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
17,895
|
|
|
|
17,895
|
|
|
|
17,895
|
|
Contributions in the form of fair value adjustments related to
charter-in contract of vessel Fantastiks
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50,579
|
|
|
|
50,579
|
|
|
|
|
|
Total comprehensive income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
17,895
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance November 16, 2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
|
|
|
$
|
139,376
|
|
|
$
|
139,376
|
|
|
$
|
17,895
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Contributions from owner (net liability of business retained by
Owner)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
46,413
|
|
|
|
46,413
|
|
|
|
|
|
Deemed dividend:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net assets contributed by Navios Holdings in exchange for
General Partner Units and Subordinated Units of Navios Partners
|
|
|
369,834
|
|
|
|
8,598
|
|
|
|
|
|
|
|
|
|
|
|
7,621,843
|
|
|
|
177,191
|
|
|
|
185,789
|
|
|
|
(185,789
|
)
|
|
|
|
|
|
|
|
|
Cash remittance to Navios Holdings in exchange for contribution
of net assets of Navios Partners
|
|
|
|
|
|
|
(16,350
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(336,950
|
)
|
|
|
(353,300
|
)
|
|
|
|
|
|
|
(353,300
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total deemed dividend
|
|
|
|
|
|
|
(7,752
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(159,759
|
)
|
|
|
(167,511
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
Sale of common units, net of IPO-related expenses
|
|
|
|
|
|
|
|
|
|
|
10,500,000
|
|
|
|
192,684
|
|
|
|
|
|
|
|
|
|
|
|
192,684
|
|
|
|
|
|
|
|
192,684
|
|
|
|
|
|
Net income for period from November 16, 2007 through
December 31, 2007
|
|
|
|
|
|
|
32
|
|
|
|
|
|
|
|
1,581
|
|
|
|
|
|
|
|
|
|
|
|
1,613
|
|
|
|
|
|
|
|
1,613
|
|
|
|
1,613
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance December 31, 2007
|
|
|
369,834
|
|
|
$
|
(7,720
|
)
|
|
|
10,500,000
|
|
|
$
|
194,265
|
|
|
|
7,621,843
|
|
|
$
|
(159,759
|
)
|
|
$
|
26,786
|
|
|
$
|
|
|
|
$
|
26,786
|
|
|
$
|
1,613
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash distribution paid
|
|
|
|
|
|
|
(513
|
)
|
|
|
|
|
|
|
(14,436
|
)
|
|
|
|
|
|
|
(9,603
|
)
|
|
|
(24,552
|
)
|
|
|
|
|
|
|
(24,552
|
)
|
|
|
|
|
Issuance of units
|
|
|
63,906
|
|
|
|
918
|
|
|
|
3,131,415
|
|
|
|
44,937
|
|
|
|
|
|
|
|
|
|
|
|
45,855
|
|
|
|
|
|
|
|
45,855
|
|
|
|
|
|
Net income
|
|
|
|
|
|
|
615
|
|
|
|
|
|
|
|
18,873
|
|
|
|
|
|
|
|
9,270
|
|
|
|
28,758
|
|
|
|
|
|
|
|
28,758
|
|
|
|
28,758
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance December 31, 2008
|
|
|
433,740
|
|
|
$
|
(6,700
|
)
|
|
|
13,631,415
|
|
|
$
|
243,639
|
|
|
|
7,621,843
|
|
|
$
|
(160,092
|
)
|
|
$
|
76,847
|
|
|
$
|
|
|
|
$
|
76,847
|
|
|
$
|
28,758
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See notes to consolidated financial statements
F-6
|
|
NOTE 1
|
DESCRIPTION
OF BUSINESS
|
Navios Maritime Partners L.P. (Navios Partners), was
formed on August 7, 2007 under the laws of Marshall Islands
by Navios Maritime Holdings Inc (Navios Holdings).
Navios GP L.L.C. (the General Partner), a
wholly-owned subsidiary of Navios Holdings, was also formed on
that date to act as the general partner of Navios Partners and
receive a 2% general partner interest.
In connection with the initial public offering (IPO)
of Navios Partners on November 16, 2007 Navios Partners
acquired interests in five wholly-owned subsidiaries of Navios
Holdings , each of which owned a Panamax drybulk carrier (the
Initial Fleet), as well as interests in three
wholly-owned subsidiaries of Navios Holdings that operated and
had options to purchase, three additional vessels in exchange
for (a) all of the net proceeds from the sale of 10,000,000
common units in the IPO and the sale of 500,000 common units in
a concurrent private offering to a corporation owned by Navios
Partners Chairman and CEO for a total estimated amount of
$193,300 (see note 3), plus (b) $160,000 of the
$165,000 drawn under Navios Partners revolving credit
facility entered into in connection with the IPO (see
note 11), (c) 7,621,843 subordinated units issued to
Navios Holdings and (d) the issuance to the General Partner
of the 2% general partner interest and all incentive
distribution rights in Navios Partners. Upon the closing of the
IPO, Navios Holdings owned a 43.2% interest in Navios Partners,
including the 2% general partner interest.
On July 1, 2008 Navios Partners issued 3,131,415 common
units to Navios Holdings for the acquisition of Navios
Aurora I, and 63,906 general partnership units to the
General Partner in exchange for the contribution received from
the General Partner to maintain its 2% general partner interest
in Navios Partners. As a result, Navios Holdings currently owns
a 51.6% interest in Navios Partners, including the 2% general
partner interest.
On or prior to the closing of the IPO, Navios Partners entered
into the following agreements: (a) a share purchase
agreement pursuant to which Navios Partners acquired the capital
stock of a subsidiary that will own the Capesize vessel Navios
TBN I and related time charter, upon delivery of the vessel
which is expected to occur in June 2009; (b) a share
purchase agreement pursuant to which Navios Partners has the
option, exercisable at any time between January 1, 2009 and
April 1, 2009, to acquire the capital stock of the
subsidiary that will own the Capesize vessel Navios TBN II and
related time charter scheduled for delivery in October 2009;
(c) a management agreement with Navios ShipManagement Inc.
(the Manager) pursuant to which the Manager provides
Navios Partners commercial and technical management services;
(d) an administrative services agreement with the Manager
pursuant to which the Manager provides Navios Partners
administrative services; and (e) an omnibus agreement with
Navios Holdings, governing, among other things, when Navios
Partners and Navios Holdings may compete against each other as
well as rights of first offer on certain drybulk carriers.
Navios Partners is engaged in the seaborne transportation
services of a wide range of drybulk commodities including iron
ore, coal, grain and fertilizer, chartering its vessels under
medium to long term charters. The operations of Navios Partners
are managed by the Manager from its head offices in Piraeus,
Greece.
|
|
NOTE 2
|
SUMMARY
OF SIGNIFICANT ACCOUNTING POLICIES
|
|
|
(a) |
Basis of presentation: The accompanying
consolidated financial statements are prepared in accordance
with accounting principles generally accepted in the United
States of America (US GAAP).
|
The financial statements for the periods prior to the IPO on
November 16, 2007, reflect the consolidated financial
position, results of operations and cash flows of the five
vessel-owning subsidiaries of Navios (collectively, the
Company) that owned the Initial Fleet prior to the
IPO. These consolidated financial statements have been presented
using the historical carrying costs of such vessel-owning
subsidiaries for all periods presented prior to the IPO, as each
vessel-owning subsidiary was under the common control
F-7
NAVIOS
MARITIME PARTNERS L.P.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Expressed
in thousands of U.S. Dollars except unit and per unit amounts)
of Navios Holdings. The financial statements for periods after
the IPO are referred to as those of the Navios Partners.
The financial statements for the periods prior to Navios
Partners IPO on November 16, 2007, reflect the
consolidated financial position, results of operations and cash
flows of the Company. These consolidated financial statements
have been presented using the historical carrying costs of the
five vessel-owning subsidiaries for all periods presented as
each vessel-owning company was under common control of Navios
Holdings. Subsidiaries of Navios Holdings are collectively
referred to as Navios Holdings.
|
|
(b) |
Principles of consolidation: The
accompanying consolidated financial statements include Navios
Partners wholly owned subsidiaries incorporated under the
laws of Marshall Islands from their dates of incorporation or,
for chartered-in vessels, from the dates charter-in agreements
were in effect. The consolidated financial statements as of
December 31, 2007 and 2008 and for the period from
November 16, 2007 to December 31, 2007 and for the
year ended December 31, 2008 reflect Navios Partners
consolidated financial position, results of operations and cash
flows while all other periods presented are for the
Companys financial position prior to the IPO (see
note 3). All significant inter-company balances and
transactions have been eliminated in Navios Partners and
the Companys consolidated financial statements.
|
Subsidiaries: Subsidiaries are those entities
in which Navios Partners has an interest of more than one half
of the voting rights or otherwise has power to govern the
financial and operating policies.
The accompanying consolidated financial statements include
the following entities and chartered-in vessels:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Country of
|
|
Statement of income
|
Company name
|
|
Vessel name
|
|
incorporation
|
|
2006
|
|
2007
|
|
2008
|
|
Libra Shipping Enterprises Inc
|
|
Navios Libra II
|
|
Marshall Is.
|
|
|
1/1 12/31
|
|
|
|
|
1/1 12/31
|
|
|
|
|
1/1 12/31
|
|
|
Alegria Shipping Corporation
|
|
Navios Alegria
|
|
Marshall Is.
|
|
|
1/1 12/31
|
|
|
|
|
1/1 12/31
|
|
|
|
|
1/1 12/31
|
|
|
Felicity Shipping Corporation
|
|
Navios Felicity
|
|
Marshall Is.
|
|
|
1/1 12/31
|
|
|
|
|
1/1 12/31
|
|
|
|
|
1/1 12/31
|
|
|
Gemini Shipping Corporation
|
|
Navios Gemini S
|
|
Marshall Is.
|
|
|
1/5 12/31
|
|
|
|
|
1/1 12/31
|
|
|
|
|
1/1 12/31
|
|
|
Galaxy Shipping Corporation
|
|
Navios Galaxy I
|
|
Marshall Is
|
|
|
3/23 12/31
|
|
|
|
|
1/1 12/31
|
|
|
|
|
1/1 12/31
|
|
|
Aurora Shipping Enterprises Ltd.
|
|
Navios Aurora I
|
|
Marshall Is
|
|
|
|
|
|
|
|
|
|
|
|
|
7/1 12/31
|
|
|
Chartered-in vessel
|
|
Navios Galaxy I
|
|
|
|
|
1/1 3/22
|
|
|
|
|
|
|
|
|
|
|
|
|
Prosperity Shipping
Corporation (*)
|
|
Navios Prosperity
|
|
Marshall Is.
|
|
|
|
|
|
|
|
11/16 12/31
|
|
|
|
|
1/1 12/31
|
|
|
Chartered-in vessel
|
|
Navios Prosperity
|
|
|
|
|
|
|
|
|
|
6/19 11/15
|
|
|
|
|
|
|
|
Fantastiks Shipping
Corporation (**)
|
|
Navios Fantastiks
|
|
Marshall Is.
|
|
|
|
|
|
|
|
11/16 12/31
|
|
|
|
|
1/1 12/31
|
|
|
Chartered-in vessel
|
|
Fantastiks
|
|
|
|
|
|
|
|
|
|
2/2 11/15
|
|
|
|
|
|
|
|
Aldebaran Shipping
Corporation (*)
|
|
Navios Aldebaran
|
|
Marshall Is.
|
|
|
|
|
|
|
|
|
|
|
|
|
3/17 12/31
|
|
|
Navios Maritime Partners L.P
|
|
N/A
|
|
Marshall Is
|
|
|
|
|
|
|
|
11/16 12/31
|
|
|
|
|
1/1 12/31
|
|
|
Navios Maritime Operating LLC
|
|
N/A
|
|
Marshall Is
|
|
|
|
|
|
|
|
11/16 12/31
|
|
|
|
|
1/1 12/31
|
|
|
|
|
|
(*)
|
|
Not a vessel-owning subsidiary and
only holds rights to charter-in contract
|
|
(**)
|
|
Fantastiks Shipping Corporation
took ownership of the vessel Fantastiks, which was renamed to
Navios Fantastiks on May 2, 2008.
|
In the consolidated financial statements the vessel-owning
entities prior to the IPO were party to centralized treasury
arrangements with a related party management company through
each of their
F-8
NAVIOS
MARITIME PARTNERS L.P.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Expressed
in thousands of U.S. Dollars except unit and per unit amounts)
management agreements. Under this agreement, the management
company received all revenue and other cash inflows and paid all
expenses and other cash outflows for and on behalf of the
entities which were funded by Navios Holdings. All cash flows
presented in the consolidated statements of cash flows prior to
the IPO represented movements under the centralized treasury
arrangements. For the period after the IPO, cash transactions
including revenue received, expenses paid and any other cash
inflow or outflow related to Navios Partners business, are
funded by Navios Partners.
The Companys financial statements included the assets,
liabilities, revenues, expenses and cash flows directly
attributable to the vessel-owning legal entities, except for the
loans, interest expense, deferred financing fees and the related
amortization and forward freight agreements, which had been
allocated to the Company on the following basis:
|
|
|
|
|
Loans and related interest expense. The credit
facility assumed by Navios Holdings, included specific tranches
relating to the acquisitions of the Companys vessels.
Those tranches together with the respective interest expense had
been allocated to consolidated financial statements. Prior to
the IPO the Companys vessels were used as collateral for
the assumed debt (see note 11).
|
|
|
|
Deferred finance fees and related
amortization. As noted above, the loans related
to the acquisition of vessels had been divided into tranches and
reflected in the Companys financial statements based on
specific identification. Similarly, each tranche of the loans
had identifiable fees and expenses associated with it.
Accordingly, the deferred financing costs of the tranches
relating to the purchase of the Companys vessels, together
with the respective amortization, had also been allocated to the
Companys financial statements based on specific
identification.
|
|
|
|
Forward freight agreements
(FFAs). Navios Holdings traded FFAs
as economic hedges to cover its exposure to freight rates.
During 2006 certain FFAs related to specific vessels and
specific future periods in which the vessels had no employment
initially qualified for hedge accounting treatment. For such
FFAs, where the vessel was identifiable and the FFA trade was
performed to specifically cover the vessels exposure on
the freight market for a specific period, allocation of the
hedging results had been made to the respective vessels. The
hedge accounting results reflected in these consolidated
financial statements related to FFAs contracted by Navios
Holdings in connection with two of the Companys vessels
during the periods presented. It is Navios Partners policy
not to trade FFAs, therefore during 2007 and 2008 no FFAs were
traded.
|
|
|
|
|
|
Prior to the closing of the IPO, Navios Partners entered a new
revolving credit facility (see note 11) in order to
finance the acquisition of the capital stock of Navios
Holdings eight wholly-owned subsidiaries. Navios
Partners vessels are secured by first preferred mortgages.
Loan balance, deferred finance fees and related amortization are
recorded in the accompanying consolidated financial statements
of 2007 and 2008.
|
|
|
(c) |
Use of Estimates: The preparation of
consolidated financial statements in conformity with the
accounting principles generally accepted in the United States of
America requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities as of the dates
of the financial statements and the reported amounts of revenues
and expenses during the reporting periods. On an on-going basis,
management evaluates the estimates and judgments, including
those related to future drydock dates, the selection of useful
lives for tangible assets, expected future cash flows from
long-lived assets to support impairment tests, provisions
necessary for accounts receivables, provisions for legal
disputes, and contingencies. Management bases its estimates and
judgments on historical experience and on various other factors
that are believed to be reasonable under the circumstances, the
results of which form the basis for making judgments about the
carrying values of assets and liabilities that are not readily
apparent from other sources. Actual results could differ from
those estimates under different assumptions
and/or
conditions.
|
F-9
NAVIOS
MARITIME PARTNERS L.P.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Expressed
in thousands of U.S. Dollars except unit and per unit amounts)
|
|
(d) |
Cash and Cash equivalents: Cash and
cash equivalents consist of cash on hand, deposits held on call
with banks, and other short-term liquid investments with
original maturities of three months or less.
|
|
|
(e) |
Restricted Cash: Restricted cash
consists of cash retention accounts which are restricted for use
as general working capital, unless such balances exceed
installment and interest payments due to lenders. As of
December 31, 2007 and 2008 the restricted cash held in
retention accounts was $797 and $0, respectively.
|
|
|
(f) |
Accounts Receivable Trade, net: The
amount shown as accounts receivable-trade, net at each balance
sheet date includes receivables from charterers for hire,
freight and demurrage billings, net of a provision for doubtful
accounts. At each balance sheet date, all potentially
uncollectible accounts are assessed individually for purposes of
determining the appropriate provision for doubtful accounts. The
provision for doubtful accounts at December 31, 2007 and
2008 was $100, respectively.
|
|
|
(g)
|
Insurance claims: Insurance claims
consist of claims submitted
and/or
claims in the process of compilation or submission (claims
pending against vessels insurance underwriters). They are
recorded on the accrual basis and represent the claimable
expenses, net of applicable deductibles, incurred through
December 31 of each reported period, which are expected to be
recovered from insurance companies. Any remaining costs to
complete the claims are included in accrued liabilities. The
classification of insurance claims into current and non-current
assets is based on managements expectations as to their
collection dates. As provided in the management agreement,
adjustments and negotiations of settlements of any claim damages
which are recoverable under insurance policies are managed by
the Manager. Navios Partners pays the deductible of any
insurance claims relating to its vessels or for any claims that
are within such deductible range.
|
|
(h)
|
Vessels, net: Vessels owned by Navios
Partners are recorded at historical cost, which consists of the
contract price and any material expenses incurred upon
acquisition (improvements and delivery expenses). Subsequent
expenditures for major improvements and upgrading are
capitalized, provided they appreciably extend the life, increase
the earning capacity or improve the efficiency or safety of the
vessels. Expenditures for routine maintenance and repairs prior
to the IPO were expensed as incurred. After the IPO, pursuant to
the management agreement such costs are included in the daily
fee of $4 for Panamax vessels and $5 for Capesize vessels that
Navios Partners pays to the Manager and are also expensed as
incurred,. Depreciation is computed using the straight line
method over the useful life of the vessels, after considering
the estimated residual value. The useful life of the vessels is
estimated to be 25 years from the vessels original
construction. However when regulations place limitations over
the ability of a vessel to trade on a worldwide basis, its
useful life is re-estimated to end at the date such regulations
become effective.
|
|
|
(i)
|
Deferred Drydock and Special Survey
costs: Navios Partners vessels are
subject to regularly scheduled drydocking and special surveys
which are carried out every 30 or 60 months to coincide
with the renewal of the related certificates issued by the
Classification Societies, unless a further extension is obtained
in rare cases and under certain conditions. The costs of
drydocking and special surveys is deferred and amortized over
the above periods or to the next drydocking or special survey
date if such has been determined. Unamortized drydocking or
special survey costs of vessels sold are written off to income
in the year the vessel is sold. For the years ended
December 31, 2006, 2007 and 2008 amortization was $465,
$608 and $578 respectively.
|
|
(j)
|
Impairment of long lived
assets: Vessels, other fixed assets and other
long lived assets held and used by Navios Partners are reviewed
periodically for potential impairment whenever events or changes
in circumstances indicate that the carrying amount of a
particular asset may not be fully recoverable. In accordance
with FAS 144, Navios Partners management evaluates
the carrying amounts and periods over which long-lived assets
are depreciated to determine if events or changes in
circumstances have occurred
|
F-10
NAVIOS
MARITIME PARTNERS L.P.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Expressed
in thousands of U.S. Dollars except unit and per unit amounts)
|
|
|
that would require modification to their carrying values or
useful lives. In evaluating useful lives and carrying values of
long-lived assets, certain indicators of potential impairment,
are reviewed such as undiscounted projected operating cash
flows, vessel sales and purchases, business plans and overall
market conditions. Undiscounted projected net operating cash
flows are determined for each vessel and compared to the vessel
carrying value. In the event that impairment occurred, the fair
value of the related asset is determined and a charge is
recorded to operations calculated by comparing the assets
carrying value to the estimated fair market value. Fair market
value is estimated primarily through the use of third-party
valuations performed on an individual vessel basis. For the
purposes of assessing impairment, long lived-assets are grouped
at the lowest levels for which there are separately identifiable
cash flows.
|
During the fourth quarter of fiscal 2008, management concluded
that events occurred and circumstances had changes, which may
indicate the existence of potential impairment of Navios
Partners long-lived assets. These indicators included a
significant decline in Navios Partners stock price,
continued deterioration in the spot market, and the related,
impact the current drybulk sector has on managements
expectation for future revenues. As a result, an interim
impairment assessment of long-lived assets is performed. Unless
these indicators improve, it is likely that an interim
impairment analysis will be required to be performed in future
quarters.
The interim testing was a review of the undiscounted projected
net operating cash flows for each vessel compared to the
carrying value. The significant factors and assumptions used in
the undiscounted projected net operating cash flow analysis
included: earnings, depreciation, dry docking off-hire costs and
operating expenses. Earnings assumptions were based on time
charter rates and forward market rates for future periods where
the vessels are not yet fixed. The assumed charter rates for
Panamax per day ranged from $13 to $14 and $24 per day for
Capesize. Operating expenses per day of $4 and $5 were used for
each owned Panamax vessels and the Capesize vessel,
respectively, until November 2009, bearing an annual increase of
5% thereafter. The assessment concluded that step two of the
impairment analysis was not required and no impairment of
vessels existed as of December 31, 2008, as the
undiscounted projected net operating cash flows exceeded the
carrying value. A material impairment charge would occur, if the
management forecasted charter rates for Panamax vessels fell
between $10 per day to $12 and for Capesize below $13 for the
remaining lives of the vessels.
Although management believes the underlying assumptions
supporting this assessment are reasonable, if charter rate
trends and the length of the current market downturn, vary
significantly from our forecasts, management may be required to
perform step two of the impairment analysis in the future that
could expose Navios Partners to material impairment charges in
the future.
No impairment loss was recognized for any of the periods
presented.
|
|
(k) |
Deferred Financing Costs: Deferred
financing costs include fees, commissions and legal expenses
associated with obtaining loan facilities. These costs are
amortized over the life of the related debt using the effective
interest rate method, and are included in interest expense. The
unamortized deferred financing cost related to the Company just
prior to the IPO which amounted to $1,066 was not assumed by
Navios Partners. In connection with the IPO, Navios Partners
entered into a new loan facility of $165,000 to finance the
acquisition of the vessel-owning subsidiaries (see
note 11) and in 2008 borrowed another $70,000 to
finance the acquisition of two additional vessels. The financing
cost related to this loan facility originally amounted to $1,835
and in 2008 Navios Partners paid another $326. The unamortized
balance of $1,811 and $1,915 has been included in Deferred
financing costs in the consolidated balance sheet as of
December 31, 2007 and 2008, respectively.
|
|
|
(l) |
Intangible assets: Navios
Partners intangible assets and liabilities consist of
favorable lease terms (including purchase options) and
unfavorable lease terms.
|
F-11
NAVIOS
MARITIME PARTNERS L.P.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Expressed
in thousands of U.S. Dollars except unit and per unit amounts)
As of December 31, 2007 the intangible asset of $52,874
associated with the favorable lease terms relates to the
charter-in contract of Fantastiks acquired from Kleimar N.V.
(Kleimar) in February 2007. The liability associated
with unfavorable lease terms of $8,486 relates to the
charter out contract of Fantastiks. Also included in
the favorable lease term is an amount of $6,677 related to the
purchase option for the vessel Fantastiks. This amount is not
amortized and as the purchase option is exercised, the portion
of this asset will be capitalized as part of the cost of the
vessel and will be depreciated over the remaining useful life of
the vessel.
The amortizable value of favorable leases would be considered
impaired if their fair market value could not be recovered from
the future undiscounted cash flows associated with the asset.
Vessel purchase options, which are included in favorable lease
terms, are not amortized and would be considered impaired if the
carrying value of an option, when added to the option price of
the vessel, exceeded the fair market value of the vessel.
|
|
(m) |
Foreign currency translation: Navios
Partners functional and reporting currency is the
U.S. Dollar. Navios Partners engages in worldwide commerce
with a variety of entities. Although, its operations may expose
it to certain levels of foreign currency risk, its transactions
are predominantly U.S. dollar denominated. Additionally,
Navios Partners wholly-owned vessel subsidiaries
transacted a nominal amount of their operations in Euros;
however, all of the subsidiaries primary cash flows are
U.S. dollar denominated. Transactions in currencies other
than the functional currency are translated at the exchange rate
in effect at the date of each transaction. Differences in
exchange rates during the period between the date a transaction
denominated in a foreign currency is consummated and the date on
which it is either settled or translated, are recognized in the
statement of operations. The foreign currency exchange
gains/(losses) recognized in the accompanying consolidated
statement of income for each of the years ended
December 31, 2006, 2007 and 2008 were $(16), $0 and $0,
respectively.
|
|
|
(n)
|
Provisions: Navios Partners, in the
ordinary course of its business, is subject to various claims,
suits and complaints. Management, in consultation with internal
and external advisors, will provide for a contingent loss in the
financial statements if the contingency had been incurred at the
date of the financial statements and the amount of the loss can
be reasonably estimated. In accordance with
SFAS No. 5, Accounting for Contingencies,
as interpreted by the FASB Interpretation No. 14,
Reasonable Estimation of the Amount of a Loss, if
Navios Partners has determined that the reasonable estimate of
the loss is a range and there is no best estimate within the
range, Navios Partners will provide the lower amount of the
range. Navios Partners, through the management agreement,
participates in Protection and Indemnity (P&I) insurance
coverage plans provided by mutual insurance societies known as
P&I clubs. Under the terms of these plans, participants may
be required to pay additional premiums to fund operating
deficits incurred by the clubs (back calls).
Obligations for back calls are accrued annually based on
information provided by the clubs regarding supplementary calls.
For Navios Partners, services such as the ones described above
are provided by the Manager under the management agreement and
included as part of the daily fee of $4 for each Panamax vessel
and $5 for each Capesize vessel.
|
|
(o)
|
Segment Reporting: Navios Partners
reports financial information and evaluates its operations by
charter revenues and not by the length of ship employment for
its customers. Navios Partners does not use discrete financial
information to evaluate operating results for each type of
charter. Management does not identify expenses, profitability or
other financial information by charter type. As a result,
management reviews operating results solely by revenue per day
and operating results of the fleet and thus Navios Partners has
determined that it operates under one reportable segment.
|
F-12
NAVIOS
MARITIME PARTNERS L.P.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Expressed
in thousands of U.S. Dollars except unit and per unit amounts)
|
|
(p) |
Revenue and Expense Recognition:
|
Revenue Recognition: Revenue is recorded when
services are rendered, under a signed charter agreement or other
evidence of an arrangement, the price is fixed or determinable,
and collection is reasonably assured. Revenue is generated from
the voyage charter and the time charter of vessels.
Voyage revenues for the transportation of cargo are recognized
ratably over the estimated relative transit time of each voyage.
Voyage expenses are recognized as incurred. A voyage is deemed
to commence when a vessel is available for loading and is deemed
to end upon the completion of the discharge of the current
cargo. Estimated losses on voyages are provided for in full at
the time such losses become evident. Under a voyage charter, a
vessel is provided for the transportation of specific goods
between specific ports in return for payment of an agreed upon
freight per ton of cargo.
Revenues from time chartering of vessels are accounted for as
operating leases and are thus recognized on a straight line
basis as the average revenue over the rental periods of such
charter agreements, as service is performed, except for loss
generating time charters, in which case the loss is recognized
in the period when such loss is determined. A time charter
involves placing a vessel at the charterers disposal for a
period of time during which the charterer uses the vessel in
return for the payment of a specified daily hire rate. Under
time charters, operating costs such as for crews, maintenance
and insurance are typically paid by the owner of the vessel.
Revenues are recorded net of address commissions. Address
commissions represent a discount provided directly to the
charterers based on a fixed percentage of the agreed upon
charter or freight rate. Since address commissions represent a
discount (sales incentive) on services rendered by the Company
and no identifiable benefit is received in exchange for the
consideration provided to the charterer, these commissions are
presented as a reduction of revenue.
Forward Freight Agreements (FFAs): Navios
Holdings traded FFAs as economic hedges to cover its exposure to
freight rates. During 2006, certain FFAs relating to specific
vessels and specific future periods in which the vessels had no
employment initially qualified for hedge accounting treatment.
FFAs initially qualified for hedge accounting, where the vessel
was identifiable and the FFA trade was performed to specifically
cover the vessels exposure on the freight market for a
specific period, were allocated to the respective vessels. There
were two vessels of the Company which qualified for hedge
accounting and were properly reflected in the consolidated
financial statements. Realized gains or losses from these FFAs
were recognized in earnings concurrent with cash settlements on
a monthly basis. In addition, on a quarterly basis, the FFAs
were marked to market to determine the fair values
which generate unrealized gains or losses; see Note
(q) below. It is Navios Partners policy not to trade
FFAs, therefore no FFAs were traded during 2007 and 2008.
Time Charter and Voyage Expenses: Time charter
and voyage expenses comprise all expenses related to each
particular voyage, including time charter hire paid and bunkers,
port charges, canal tolls, cargo handling, agency fees and
brokerage commissions. Also included in time charter and voyage
expenses are charterers liability insurances, provision
for losses on time charters in progress at year-end, direct port
terminal expenses and other miscellaneous expenses. Time charter
and voyage expenses are recognized as incurred.
Direct Vessel Expense: Direct vessel expenses
consisted of all expenses relating to the operation of vessels,
including crewing, repairs and maintenance, insurance, stores
and lubricants and miscellaneous expenses such as communications
and amortization of drydock and special survey costs. Prior to
the IPO, direct vessel expenses were recognized as incurred.
Beginning on November 16, 2007 such services are provided
to Navios Partners by the Manager through the management
agreement discussed in the paragraph below.
F-13
NAVIOS
MARITIME PARTNERS L.P.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Expressed
in thousands of U.S. Dollars except unit and per unit amounts)
Management fees: Pursuant to the management
agreement dated November 16, 2007, the Manager provides
commercial and technical management services to Navios
Partners vessels for a daily fee of $4 per owned Panamax
vessel and of $5 per owned Capesize vessel. These daily fees
cover all of the vessels operating expenses, including the
cost of drydock and special surveys and are classified as
management fee in the consolidated statement of income. The
daily fee rates are fixed for a period of two years whereas the
initial term of the management agreement is five years
commencing from November 16, 2007.
General & administrative
expenses: Pursuant to the administrative services
agreement dated November 16, 2007, the Manager provides
administrative services to Navios Partners which include:
bookkeeping, audit and accounting services, legal and insurance
services, administrative and clerical services, banking and
financial services, advisory services, client and investor
relations and other. The Manager is reimbursed for reasonable
costs and expenses incurred in connection with the provision of
these services. The agreement has an initial term of five years
commencing from November 16, 2007.
Deferred Voyage Revenue: Deferred voyage
revenue primarily relates to cash received from charterers prior
to it being earned. These amounts are recognized as revenue over
the voyage or charter period.
Prepaid Voyage Costs: Prepaid voyage costs
relate to cash paid in advance for expenses associated with
voyages. These amounts are recognized as expense over the voyage
or charter period.
|
|
(q) |
Financial Instruments: Financial
instruments carried on the balance sheet include trade
receivables and payables, other receivables and other
liabilities and long term debt. The particular recognition
methods applicable to each class of financial instrument are
disclosed in the applicable significant policy description of
each item, or included below as applicable.
|
Financial risk management: Navios
Partners activities expose it to a variety of financial
risks including fluctuations in future freight rates, time
charter hire rates, and fuel prices, credit and interest rates
risk. Risk management is carried out under policies approved by
executive management. Guidelines are established for overall
risk management, as well as specific areas of operations.
Credit risk: Navios Partners closely monitors
its exposure to customers and counter-parties for credit risk.
Navios Partners has entered into the management agreement with
the Manager, pursuant to which the Manager agreed to provide
commercial and technical management services to Navios Partners.
When negotiating on behalf of Navios Partners various employment
contracts, the Manager has policies in place to ensure that it
trades with customers and counterparties with an appropriate
credit history.
Foreign exchange risk: Foreign currency
transactions are translated into the measurement currency rates
prevailing at the dates of transactions. Foreign exchange gains
and losses resulting from the settlement of such transactions
and from the translation of monetary assets and liabilities
denominated in foreign currencies are recognized in the
consolidated statement of operations and in the predecessor
combined statement of operations, respectively.
Accounting for derivative financial instruments and hedge
activities: Navios Holdings traded FFAs as
economic hedges to cover its exposure to freight rates. During
2006 certain FFAs relating to specific vessels and specific
future periods in which the vessels had no employment initially
qualified for hedge accounting treatment. FFAs initially
qualifying for hedge accounting, where the vessel was
identifiable and the FFA trade was performed to specifically
cover the vessels exposure on the freight market for a
specific period, were allocated to the respective vessels. In
the Companys consolidated financial statements, hedge
accounting has been allocated and reflected based on the fact
that two of the vessels of the Company qualified for hedge
accounting. For FFAs that initially qualified for hedge
accounting the changes in fair values of the effective portion
representing unrealized gains or losses are recorded in
Other Comprehensive Income/(Loss) in the statement
of changes in owners net investment, while the
F-14
NAVIOS
MARITIME PARTNERS L.P.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Expressed
in thousands of U.S. Dollars except unit and per unit amounts)
unrealized gains or losses of the FFAs no longer qualified for
hedge accounting together with the ineffective portion of ones
qualified for hedge accounting ($2,923 loss for the year ended
December 31, 2006 and $0 for the years ended
December 31, 2007 and 2008, respectively) were recorded in
the consolidated statement of income under Gain/(Loss) on
Forward Freight Agreements. The gains/(losses) included in
Other Comprehensive Income/(Loss) were reclassified
to earnings under Revenue in the consolidated
statement of income in the same period or periods during which
the hedged forecasted transaction affected earnings in 2006 and
no FFAs were traded subsequently. The reclassification to
earnings extended until December 31, 2006, depending on the
period or periods during which the hedged forecasted
transactions affected earnings and commenced in the third
quarter of 2006. As at December 31, 2006, 2007 and 2008,
there was no balance in Other Comprehensive
Income/(Loss) as all losses had been reclassified to
earnings. Because the losses were funded directly by Navios
Holdings through centralized treasury arrangements, the amount
of the loss funded by Navios Holdings on behalf of the Company
was treated as a capital contribution in the statement of
changes in owners net investment and comprehensive
income/(loss) in 2006. It is Navios Partners policy not to
trade FFAs, therefore no FFAs were traded during 2007 and 2008.
The Company classified cash flows related to derivative
financial instrument within cash provided by operating
activities in the consolidated statement of cash flows.
Deferred taxation: The asset and liability
method is used to account for future income taxes. Under this
method, future income tax assets and liabilities are recognized
for the estimated future tax consequences attributable to
differences between the financial statement carrying amounts and
the tax bases of assets and liabilities. Future income tax
assets and liabilities are measured using enacted tax rates in
effect for the year in which those temporary differences are
expected to be recovered or settled. The effect on future income
tax assets and liabilities of a change in tax rates is
recognized in income in the period that includes the enactment
date. A deferred tax asset is recognized for temporary
differences that will result in deductible amounts in future
years. Valuation allowance is recognized if, based on the weight
of available evidence, it is more likely than not that some
portion or all of the deferred tax asset will not be realized.
Income Taxes: Navios Partners believes that
substantially all of its operations are exempt from income taxes
in the Marshall Islands and in the United States.
|
|
(s) |
Cash Distribution: As per the
Partnership Agreement, within 45 days following the
end of each quarter commencing with the quarter ending on
December 31, 2007, an amount equal to 100% of Available
Cash with respect to such quarter shall be distributed to the
partners as of the record date selected by the Board of
Directors.
|
Available Cash: Generally means, for each
fiscal quarter, all cash on hand at the end of the quarter:
|
|
|
|
|
less the amount of cash reserves established by the board of
directors to:
|
|
|
|
|
|
provide for the proper conduct of our business (including
reserve for Maintenance and Replacement Capital Expenditures)
|
|
|
|
comply with applicable law, any of Navios Partners debt
instruments, or other agreements; or
|
|
|
|
provide funds for distributions to the unitholders and to the
general partner for any one or more of the next four quarters;
|
|
|
|
|
|
plus all cash on hand on the date of determination of available
cash for the quarter resulting from working capital borrowings
made after the end of the quarter. Working capital borrowings
are
|
F-15
NAVIOS
MARITIME PARTNERS L.P.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Expressed
in thousands of U.S. Dollars except unit and per unit amounts)
|
|
|
|
|
generally borrowings that are made under any revolving credit or
similar agreement used solely for working capital purposes or to
pay distributions to partners.
|
Maintenance and Replacement Capital
Expenditures: Maintenance and Replacement capital
expenditures are those capital expenditures required to maintain
over the long term the operating capacity of or the revenue
generated by Navios Partners capital assets, and expansion
capital expenditures are those capital expenditures that
increase the operating capacity of or the revenue generated by
the capital assets. To the extent, however, that capital
expenditures associated with acquiring a new vessel increase the
revenues or the operating capacity of our fleet, those capital
expenditures would be classified as expansion capital
expenditures. As at December 31, 2007 and 2008, maintenance
and replacement capital expenditures reserve approved by the
Board of Directors was $1,041 and $10,934, respectively.
|
|
(t) |
Recent Accounting Pronouncements: In September
2006, the FASB issued Statement of Financial Accounting
Standards No. 157 (SFAS 157) Fair Value
Measurement. SFAS 157 defines fair value, establishes
a framework for measuring fair value in generally accepted
accounting principles (GAAP) and expands disclosures about fair
value measurements. SFAS 157 is effective for financial
statements issued for fiscal years beginning after
November 15, 2007, and interim periods within those fiscal
years. Earlier application is encouraged, provided that the
reporting entity has not yet issued financial statements for
that fiscal year, including financial statements for an interim
period within that fiscal year. The provisions of SFAS 157
should be applied prospectively as of the beginning of the
fiscal year in which it is initially applied except for certain
cases where it should be applied retrospectively. The adoption
of this standard is not expected to have a material effect on
the consolidated financial statements. This statement was
effective for Navios Partners for the fiscal year beginning on
January 1, 2008 and it did not have a material affect on
its consolidated financial statements.
|
In February 2007, the FASB issued Statement of Financial
Accounting Standards No. 159 (SFAS 159) The Fair
Value Option for Financial Assets and Financial
Liabilities. SFAS 159 permits the entities to choose
to measure many financial instruments and certain other items at
fair value that are not currently required to be measured at
fair value. This Statement is expected to expand the use of fair
value measurement, which is consistent with the Boards
long-term measurement objectives for accounting for financial
instruments. SFAS 159 is effective as of the beginning of
an entitys first fiscal year that begins after
November 15, 2007. Early adoption is permitted as of the
beginning of a fiscal year on or before November 15, 2007,
provided the entity also elects to apply the provisions of FASB
Statement No. 157, Fair Value Measurements. The
adoption of this standard is not expected to have a material
effect on the consolidated financial statements. This statement
was effective for Navios Partners for the fiscal year beginning
on January 1, 2008 and it did not have a material affect on
its consolidated financial statements.
In December 2007, the FASB issued SFAS No. 141
(revised 2007), Business Combinations
(FAS 141R), which replaces FASB Statement
No. 141. FAS 141R establishes principles and
requirements for how an acquirer recognizes and measures in its
financial statements the identifiable assets acquired, the
liabilities assumed any non controlling interest in the acquiree
and the goodwill acquired. The Statement also establishes
disclosure requirements which will enable users to evaluate the
nature and financial effects of the business combination.
FAS 141R will be effective for Navios Partners for fiscal
year beginning on January 1, 2009. Navios Partners is
currently evaluating the potential impact of the adoption of
FAS 141R on the its consolidated financial statements.
In December 2007, the FASB issued SFAS No. 160,
Noncontrolling Interests in Consolidated Financial
Statement amendments of ARB No. 51
(SFAS No. 160).
SFAS No. 160 states that accounting and reporting
for minority interests will be recharacterized as noncontrolling
interests and classified as a component of equity. The Statement
also establishes reporting requirements that provide sufficient
F-16
NAVIOS
MARITIME PARTNERS L.P.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Expressed
in thousands of U.S. Dollars except unit and per unit amounts)
disclosures that clearly identify and distinguish between the
interests of the parent and the interests of the noncontrolling
owners. SFAS No. 160 applies to all entities that
prepare consolidated financial statements, except not-for-profit
organizations, but will affect only those entities that have an
outstanding noncontrolling interest in one or more subsidiaries
or that deconsolidate a subsidiary. This statement will be
effective as of January 1, 2009. Navios Partners is
currently evaluating the potential impact, if any, of the
adoption of SFAS No. 160 on its consolidated financial
statements.
In February 2008, the FASB issued the FASB Staff Position
(FSP
No. 157-2)
which delays the effective date of SFAS 157, for
nonfinancial assets and nonfinancial liabilities, except for
items that are recognized or disclosed at fair value in the
financial statements on a recurring basis (at least annually).
For purposes of applying this FSP, nonfinancial assets and
nonfinancial liabilities would include all assets and
liabilities other that those meeting the definition of a
financial asset or financial liability as defined in
paragraph 6 of FASB Statement No. 159, The Fair
Value Option for Financial Assets and Financial
Liabilities This FSP defers the effective date of
SFAS 157 to fiscal years beginning after November 15,
2008, and the interim periods within those fiscal years for
items within the scope of this FSP. The application of
SFAS 157 in future periods to those items covered by
FSP 157-2
is not expected to have a material effect on the consolidated
financial statements of Navios Partners.
In October 2008, the FASB issued the FASB Staff Position
(FSP
No. 157-3)
which clarifies the application of FASB Statement No. 157,
Fair Value Measurements in a market that is not
active and provides an example to illustrate key considerations
in determining the fair value of a financial asset when the
market for that asset is not active. This FSP applies to
financial assets within the scope of accounting pronouncements
that require or permit fair value measurements in accordance
with Statement 157. The FSP shall be effective upon issuance,
including prior periods for which financial statements have not
been issued. Revisions resulting from a change in the valuation
technique or its application shall be accounted for as a change
in accounting estimate (FASB Statement No. 154
Accounting changes and Error Corrections,
paragraph 19). The disclosure provisions of Statement
No. 154 for a change in accounting estimate are not
required for revisions resulting from a change in valuation
technique or its application. The application of
FSP 157-3
did not have a material effect on the consolidated financial
statements of Navios Partners.
In March 2008, the FASB issued its final consensus on
Issue
07-4
Application of the
Two-Class Method
under FASB Statement No. 128, Earnings per Share, to Master
Limited Partnerships. This issue may impact a publicly
traded master limited partnership (MLP) that distributes
available cash to the limited partners (LPs), the
general partner (GP), and the holders of incentive distribution
rights (IDRs). This issue addresses
earnings-per-unit
(EPU) computations for all MLPs with IDR interests. MLPs will
need to determine the amount of available cash at
the end of a reporting period when calculating the periods
EPU. This guidance in Issue
07-4 will be
effective for Navios Partners for the fiscal year beginning on
January 1, 2009 and the application of the guidance would
be accounted for as a change in accounting principle through
retrospective application. Early application would not be
permitted. Navios Partners is currently evaluating the potential
impact, if any, of the adoption of Issue
07-4 under
FASB Statement No. 128 on its consolidated financial
statements.
In April 2008, FASB issued FASB Staff Position
FSP 142-3
Determination of the useful life of intangible
assets. This FASB Staff Position (FSP) amends the factors
that should be considered in developing renewal or extension
assumptions used to determine the useful life of a recognized
intangible asset under FASB Statement No. 142,
Goodwill and Other Intangible Assets. The intent of
this FSP is to improve the consistency between the useful life
of a recognized intangible asset under Statement 142 and the
period of expected cash flows used to measure the fair value of
the asset under FASB Statement No. 141 (revised 2007),
Business Combinations, and other U.S. generally
accepted accounting principles (GAAP). This FSP will be
effective for Navios Partners for fiscal years beginning after
F-17
NAVIOS
MARITIME PARTNERS L.P.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Expressed
in thousands of U.S. Dollars except unit and per unit amounts)
December 15, 2008, and interim periods within those fiscal
years. Early adoption is prohibited. The adoption of
FSP 142-3
is not expected to have a material effect on the consolidated
financial statements of Navios Partners.
In May 2008, the Financial Accounting Standards Board issued
FASB Statement No. 162, The Hierarchy of Generally
Accepted Accounting Principles. The new standard is
intended to improve financial reporting by identifying a
consistent framework, or hierarchy, for selecting accounting
principles to be used in preparing financial statements that are
presented in conformity with U.S. generally accepted
accounting principles (GAAP) for nongovernmental entities.
Statement 162 is effective 60 days following the SECs
approval of the Public Company Accounting Oversight Board
Auditing amendments to AU Section 411, The Meaning of
Present Fairly in Conformity with Generally Accepted Accounting
Principles. The adoption of SFAS No. 162 is not
expected to have a material effect on the consolidated financial
statements of Navios Partners.
|
|
NOTE 3
|
INITIAL
PUBLIC OFFERING
|
On November 16, 2007, Navios Partners completed its initial
public offering of 10,000,000 common units at a price of $20.00
per unit. In addition, simultaneously with the offering, Navios
Partners sold 500,000 common units at a price of $20.00 per unit
to a corporation owned by Navios Partners Chairman and
Chief Executive Officer. The proceeds received by Navios
Partners from the IPO and the concurrent private offering and
the use of those proceeds are summarized as follows:
|
|
|
|
|
Proceeds received:
|
|
|
|
|
Sale of 10,500,000 units at $20.00 per unit
|
|
$
|
210,000
|
|
|
|
|
|
|
Use of proceeds from sale of common units:
|
|
|
|
|
Underwriting discount and fees to underwriters
|
|
$
|
(13,500
|
)
|
Acquisition expenses
|
|
$
|
(3,816
|
)
|
|
|
|
|
|
|
|
|
|
|
Net IPO Proceeds
|
|
$
|
192,684
|
|
Net book value of net assets contributed by Navios Holdings
|
|
$
|
185,789
|
|
Less cash contributed to Navios Holdings
|
|
|
(353,300
|
)
|
Contribution to Navios Holdings (deemed dividend)
|
|
$
|
(167,511
|
)
|
|
|
|
|
|
Total owners net investment and partners capital
(at end of IPO)
|
|
$
|
25,173
|
|
|
|
|
|
|
In connection with the IPO, Navios Partners acquired all of
outstanding shares of capital stock of the subsidiaries of
Navios Holdings that owned or had rights to eight vessels which
was accounted for as a transaction under common control. As a
result, the difference between the aggregate cash consideration
paid for the subsidiaries that owned or had the rights to eight
vessels of $353,300 and their carrying values of $185,789 was
considered as a deemed distribution of $167,511 to Navios
Holdings. This deemed dividend payable of $167,511 resulted in
reduction of total partners capital to reflect the deemed
impact of the deemed distribution, but not the proceeds of the
IPO.
The deemed distribution calculation has taken into account the
Companys forgiveness of balances due from related parties
(which was treated as a capital distribution to Navios
Holdings), which occurred immediately prior to consummation of
the IPO (See Note 16).
F-18
NAVIOS
MARITIME PARTNERS L.P.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Expressed
in thousands of U.S. Dollars except unit and per unit amounts)
NOTE 4 CASH
AND CASH EQUIVALENTS
Cash and cash equivalents consist of the following:
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
December 31,
|
|
|
|
2007
|
|
|
2008
|
|
|
Cash on hand and at banks
|
|
$
|
10,095
|
|
|
$
|
13,870
|
|
Short term deposits
|
|
|
|
|
|
|
14,504
|
|
|
|
|
|
|
|
|
|
|
Total cash and cash equivalents
|
|
$
|
10,095
|
|
|
$
|
28,374
|
|
|
|
|
|
|
|
|
|
|
As of December 31, 2007 and 2008, cash and cash equivalents
consisted of Navios Partners cash on hand, deposits held
on call with banks, and other short-term liquid investments with
original maturities of three months or less. Short term deposits
relate to time deposit accounts held in bank for general
financing purposes. As of December 31, 2008 Navios Partners
held time deposits of $14,504 with duration of less than three
months.
NOTE 5 ACCOUNTS
RECEIVABLE, NET
Accounts receivable consist of the following:
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
December 31,
|
|
|
|
2007
|
|
|
2008
|
|
|
Accounts receivable
|
|
$
|
481
|
|
|
$
|
413
|
|
Less: Provision for doubtful receivables
|
|
|
(100
|
)
|
|
|
(100
|
)
|
|
|
|
|
|
|
|
|
|
Accounts receivables, net
|
|
$
|
381
|
|
|
$
|
313
|
|
|
|
|
|
|
|
|
|
|
Charges to provisions for doubtful accounts are summarized as
follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at
|
|
|
Charges to
|
|
|
|
|
|
Balance at
|
|
|
|
beginning of
|
|
|
costs and
|
|
|
Amount
|
|
|
end of
|
|
Allowance for doubtful receivables
|
|
period
|
|
|
expenses
|
|
|
utilized
|
|
|
period
|
|
|
Year ended December 31, 2007
|
|
$
|
(211
|
)
|
|
$
|
|
|
|
$
|
111
|
|
|
$
|
(100
|
)
|
Year ended December 31, 2008
|
|
$
|
(100
|
)
|
|
$
|
|
|
|
$
|
|
|
|
$
|
(100
|
)
|
Financial instruments that potentially subject Navios Partners
to concentrations of credit risk are trade accounts receivable.
Navios Partners does not believe its exposure to credit risk is
likely to have a material adverse effect on its financial
position, results of operations or cash flows.
For the year ended December 31, 2006, four customers
accounted for 42.9%, 25.0%, 10.2% and 10.1%, respectively, of
total revenue. For the year ended December 31, 2007, four
customers accounted for approximately 30.2%, 22.0%, 17.7%, and
13.9% respectively, of total revenue, whereas for the year ended
December 31, 2008 five customers accounted for
approximately 28.2%, 22.2%, 15.6%, and 11.9% and 9.7%
respectively, of total revenues.
F-19
NAVIOS
MARITIME PARTNERS L.P.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Expressed
in thousands of U.S. Dollars except unit and per unit amounts)
|
|
NOTE 6
|
PREPAID
EXPENSES AND OTHER CURRENT ASSETS
|
Prepaid expenses and other current assets consist of the
following:
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
December 31,
|
|
|
|
2007
|
|
|
2008
|
|
|
Prepaid voyage costs
|
|
$
|
39
|
|
|
$
|
254
|
|
Other
|
|
|
|
|
|
|
117
|
|
|
|
|
|
|
|
|
|
|
Total prepaid expenses and other current assets
|
|
$
|
39
|
|
|
$
|
371
|
|
|
|
|
|
|
|
|
|
|
NOTE 7
VESSELS AND OTHER FIXED ASSETS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accumulated
|
|
|
|
|
Vessels
|
|
Cost
|
|
|
Depreciation
|
|
|
Net Book Value
|
|
|
Balance December 31, 2006
|
|
$
|
151,432
|
|
|
($
|
7,598
|
)
|
|
$
|
143,834
|
|
Additions
|
|
|
|
|
|
($
|
7,858
|
)
|
|
($
|
7,858
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance December 31, 2007
|
|
$
|
151,432
|
|
|
($
|
15,456
|
)
|
|
$
|
135,976
|
|
Additions
|
|
$
|
167,463
|
|
|
($
|
12,099
|
)
|
|
$
|
155,364
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance December 31, 2008
|
|
$
|
318,895
|
|
|
($
|
27,555
|
)
|
|
$
|
291,340
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All of the Companys vessels were acquired during December
2005 and the first quarter of 2006, for a total consideration of
approximately $151,400 ($55,000 related to a vessel acquired in
2006) of which $120,800 related to vessels acquired from
companies affiliated with Navios Holdings Chief Executive
Officer.
On May 2, 2008, Fantastiks Shipping Corporation, a
wholly-owned subsidiary of Navios Partners (see note 2),
purchased the vessel Fantastiks upon its delivery for an amount
of $34,155 of cash consideration (of which $34,001 was included
in vessel cost) pursuant to the Memorandum of Agreement signed
between Fantastiks Shipping Corporation and Kleimar N.V.
(Kleimar), a wholly-owned subsidiary of Navios
Holdings. The remaining carrying amounts of the favorable lease
and the favorable purchase option of the vessel as of the date
of purchase amounted to $53,022 and were transferred to vessel
cost and will be depreciated over the remaining useful life of
the vessel (see note 8). Capitalized expenses related to
vessel acquisition amounted to $458 and were also included in
vessel cost. The vessel was renamed to Navios Fantastiks upon
acquisition. Prior to the acquisition of Navios Fantastiks by
Navios Partners, Navios Fantastiks was a chartered-in vessel and
pursuant to the above mentioned Memorandum of Agreement all of
the risk of non-performance related to the vessel had been
assigned to Navios Partners. Therefore, Kleimar paid to
Fantastiks Shipping Corporation the net of the charter hire it
received less any charter hire it paid, until the vessel was
delivered. Hire revenue and expense, net of address commissions
is included in the statement of income, under time charter and
voyage revenue and in time charter and voyage expenses (see
note 16).
On July 1, 2008 Navios Partners acquired from Navios
Holdings, the vessel Navios Aurora I for a purchase price of
$79,936, consisting of $35,000 cash and the issuance of
3,131,415 common units to Navios Holdings. The number of the
common units issued was calculated based on a price of $14.3705
per common unit, which was the volume weighted average trading
price of the common units for the 10 business days immediately
prior to the acquisition. The per unit price at the day of the
delivery was $14.35. Capitalized expenses related to vessel
acquisition amounted to $46 and were also included in vessel
cost.
F-20
NAVIOS
MARITIME PARTNERS L.P.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Expressed
in thousands of U.S. Dollars except unit and per unit amounts)
|
|
NOTE 8
|
INTANGIBLE
ASSETS
|
Intangible assets as of December 31, 2007 and 2008 consist
of the following:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Transfer to
|
|
|
Net Book Value
|
|
|
|
|
|
|
|
|
|
Accumulated
|
|
|
vessel
|
|
|
December 31,
|
|
|
|
|
|
|
Cost
|
|
|
Depreciation
|
|
|
cost
|
|
|
2007
|
|
|
|
|
|
Unfavorable lease terms
|
|
($
|
8,486
|
)
|
|
$
|
1,830
|
|
|
$
|
|
|
|
($
|
6,656
|
)
|
|
|
|
|
Favorable lease terms
|
|
|
52,874
|
|
|
|
(4,767
|
)
|
|
|
|
|
|
|
48,107
|
|
|
|
|
|
Favorable vessel purchase option
|
|
|
6,677
|
|
|
|
|
|
|
|
|
|
|
|
6,677
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
51,065
|
|
|
($
|
2,937
|
)
|
|
$
|
|
|
|
$
|
48,128
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Book Value
|
|
|
|
|
|
|
|
|
|
Accumulated
|
|
|
Transfer to vessel
|
|
|
December 31,
|
|
|
|
|
|
|
Cost
|
|
|
Depreciation
|
|
|
cost
|
|
|
2008
|
|
|
|
|
|
Unfavorable lease terms
|
|
($
|
8,486
|
)
|
|
$
|
3,827
|
|
|
$
|
|
|
|
($
|
4,659
|
)
|
|
|
|
|
Favorable lease terms
|
|
|
52,874
|
|
|
($
|
6,529
|
)
|
|
|
(46,345
|
)
|
|
|
|
|
|
|
|
|
Favorable vessel purchase option
|
|
|
6,677
|
|
|
|
|
|
|
|
(6,677
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
51,065
|
|
|
($
|
2,702
|
)
|
|
($
|
53,022
|
)
|
|
($
|
4,659
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of December 31, 2007 and December 31, 2008,
favorable purchase option and favorable lease terms transferred
to the acquisition cost of vessels amounted to $0 and $53,022
respectively. The favorable purchase option and favorable lease
terms that were transferred to the acquisition cost of vessels
for the year ended December 31, 2008 and amounted to
$53,022 were related to the acquisition of vessel Navios
Fantastiks (see note 7).
Intangible assets subject to amortization are amortized using
straight line method over their estimated useful lives to their
estimated residual value of zero. The weighted average useful
lives are 10.16 years for favorable lease terms and
4.24 years for unfavorable lease terms.
Aggregate amortization expense for the years ended
December 31, 2006, 2007 and 2008 was $760, $1,517 and
$(235), respectively.
|
|
NOTE 9
|
ACCRUED
EXPENSES
|
Accrued expenses as of December 31, 2007 and 2008 consist
of the following:
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
December 31,
|
|
|
|
2007
|
|
|
2008
|
|
|
Accrued voyage expenses
|
|
$
|
88
|
|
|
$
|
296
|
|
Accrued loan interest
|
|
|
1,201
|
|
|
|
900
|
|
Finance fees
|
|
|
10
|
|
|
|
|
|
Accrued legal and professional fees
|
|
|
132
|
|
|
|
466
|
|
|
|
|
|
|
|
|
|
|
Total accrued expenses
|
|
$
|
1,431
|
|
|
$
|
1,662
|
|
|
|
|
|
|
|
|
|
|
F-21
NAVIOS
MARITIME PARTNERS L.P.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Expressed
in thousands of U.S. Dollars except unit and per unit amounts)
|
|
NOTE 10
|
ACCOUNTS
PAYABLE
|
Accounts payable as of December 31, 2007 and 2008 consist
of the following:
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
December 31,
|
|
|
|
2007
|
|
|
2008
|
|
|
Creditors
|
|
$
|
127
|
|
|
$
|
65
|
|
Brokers
|
|
|
111
|
|
|
|
317
|
|
Insurances premium
|
|
|
|
|
|
|
108
|
|
Professional and legal fees
|
|
|
332
|
|
|
|
104
|
|
|
|
|
|
|
|
|
|
|
Total accounts payable
|
|
$
|
570
|
|
|
$
|
594
|
|
|
|
|
|
|
|
|
|
|
Borrowings as of December 31, 2007 and 2008 consist of the
following:
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
December 31,
|
|
|
|
2007
|
|
|
2007
|
|
|
Credit facility
|
|
$
|
165,000
|
|
|
$
|
235,000
|
|
Less current portion
|
|
|
|
|
|
|
(40,000
|
)
|
|
|
|
|
|
|
|
|
|
Total long term borrowings
|
|
$
|
165,000
|
|
|
$
|
195,000
|
|
|
|
|
|
|
|
|
|
|
Prior
to the IPO
Loan Facility: In February 2007, Navios
Holdings entered into a new secured Loan Facility with HSH
Nordbank and Commerzbank AG maturing on October 31, 2014.
The new facility was composed of a $280,000 term loan facility
and a $120,000 reducing Revolver Facility. The term loan
facility was utilized to repay the remaining balance of the
previous facility and was accounted for as a debt modification.
The interest rate of the new facility was LIBOR plus a spread
ranging from 65 to 125 bps as defined in the agreement. The
carrying amount of this credit facility was not assumed by
Navios Partners whereas Navios Partners entered a new loan
facility of $165,000, in connection with the IPO.
Navios
Partners
On November 15, 2007 Navios Partners entered into a new
revolving credit facility agreement with Commerzbank AG and DVB
Bank AG maturing on November 15, 2017. This credit facility
provided for borrowings of up to $260,000, of which $165,000 was
drawn on November 16, 2007. Out of this amount, $160,000
was paid to Navios Holdings as part of the purchase price of the
capital stock of the subsidiaries that owned or had rights to
the eight vessels in Navios Partnersinitial fleet. The
balance of the drawn amount was used as working capital.
On May 2, 2008, Navios Partners borrowed an additional
$35,000 under its existing credit facility to finance the
acquisition of the vessel Fantastiks renamed to Navios
Fantastiks.
On June 25, 2008 this credit facility was amended, in part,
to increase the available borrowings by $35,000, thereby
increasing the total facility to $295,000. The amount of $35,000
was drawn on July 1, 2008 to partially finance the
acquisition of the vessel Navios Aurora, renamed to Navios
Aurora I, from Navios Holdings (see note 7).
F-22
NAVIOS
MARITIME PARTNERS L.P.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Expressed
in thousands of U.S. Dollars except unit and per unit amounts)
Navios Partners intends to borrow an additional $60,000 to
partially finance the purchase of the capital stock of the
Navios Holdings subsidiary that will own Navios TBN I upon its
delivery in June 2009. Amounts that can be borrowed under the
facility will be reduced by $60,000 if Navios TBN I is not
delivered.
In January 2009, Navios Partners further amended the terms of
its existing credit facility. The amendment is effective until
January 15, 2010 and provides for (a) repayment of
$40,000 which took place on February 9, 2009,
(b) maintaining cash reserves balance in a pledged account
with the agent bank as follows: $2,500 on January 31, 2009;
$5,000 on March 31, 2009; $7,500 on June 30, 2009,
$10,000 on September 30, 2009; $12,500 on December 31,
2009 and (c) a margin of 2.25%. Further, the covenants are
amended by (a) reducing the minimum net worth to $100,000
from $135,000, (b) reducing the Value Maintenance Covenant
(VMC) to be at 100% using charter free values and
(c) the minimum leverage covenant to be calculated using charter
inclusive adjusted values until December 31, 2009, and
(d) a new VMC is introduced based on charter attached
valuations to be at 143%. Also, Navios Partners pays a
commitment fee of 0.35% for undrawn amounts under the facility.
At December 31, 2008, Navios Partners was in compliance
with the financial covenants as required under its January 2009
amended revolving loan facility. However, if we were required to
use the original loan covenants on December 31, 2008 to
test compliance, we may not have been in compliance with certain
covenants using charter free valuations.
Amounts drawn under this facility are secured by first preferred
mortgages on Navios Partners vessels and other collateral
and are guaranteed by each vessel-owning subsidiary. The
revolving loan facility contains a number of restrictive
covenants that prohibit Navios Partners from, among other
things: undertaking new investments unless such is approved by
the bank; incurring or guaranteeing indebtedness; entering into
affiliate transactions; charging, pledging or encumbering the
vessels; changing the flag, class, management or ownership of
Navios Partners vessels; changing the commercial and
technical management of Navios Partners vessels; selling
or changing the beneficial ownership or control of Navios
Partners vessels; and subordinating the obligations under
the new credit facility to any general and administrative costs
relating to the vessels, including the fixed daily fee payable
under the management agreement. The credit facility also
requires Navios Partners to comply with the ISM Code and ISPS
Code and to maintain valid safety management certificates and
documents of compliance at all times. In addition, the revolving
credit facility, as amended (see exhibit 4.12 included
elsewhere in this document), also requires us to:
|
|
|
|
|
maintain minimum free consolidated liquidity (which may be in
the form of undrawn commitments under the revolving credit
facility) which as per the amended terms is at least $13,000 for
the year ended December 31, 2008 (increasing by $9,000 per
year until it reaches $40,000, which level is required to be
maintained thereafter);
|
|
|
|
maintain a ratio of EBITDA (as defined in our credit facility)
to interest expense of at least 2.00 to 1.00; and
|
|
|
|
maintain a ratio of total liabilities to total assets (as
defined in our credit facility) of less than 0.75 to 1.00.
|
In addition, Navios Holdings is required to own at least 30% of
us and to own 100% of our general partner. The credit facility
prohibits us from paying distributions to our unitholders or
making new investments if, before and after giving effect to
such distribution or investment we are not in compliance with
the financial covenants described above or upon the occurrence
of an event of default.
Based on the January 2009 ammended credit facility agreement,
$40,000 repayment was due and paid on February 2009. The
repayment of the remaining balance of loan facility starts no
earlier than February 2012
F-23
NAVIOS
MARITIME PARTNERS L.P.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Expressed
in thousands of U.S. Dollars except unit and per unit amounts)
and is subject to changes in repayment amounts and dates
depending on various factors such as the future borrowings under
the agreement.
The maturity table below reflects the principal payments due
under the January 2009 amended credit facility based on Navios
Partners $235,000,outstanding balance as of
December 31, 2008.
|
|
|
|
|
Year
|
|
Amount
|
|
|
2009
|
|
$
|
40,000
|
|
2010
|
|
$
|
|
|
2011
|
|
$
|
|
|
2012
|
|
$
|
28,611
|
|
2013
|
|
$
|
26,686
|
|
2014 and thereafter
|
|
$
|
139,703
|
|
|
|
|
|
|
|
|
$
|
235,000
|
|
|
|
|
|
|
|
|
NOTE 12
|
SEGMENT
INFORMATION
|
Navios Partners reports its financial information and evaluates
its operations based on charter revenues. Management does not
prepare or utilize expenses, profitability or other financial
information by charter type. As a result, management reviews
operating results solely by revenue per day and operating
results of the fleet and thus Navios Partners has determined
that it operates under one reportable segment.
The following table sets out operating revenue by geographic
region for Navios Partners accordingly, revenue is
allocated on the basis of the geographic region in which the
customer is located.
Revenue
by Geographic Region
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended
|
|
|
Year Ended
|
|
|
Year Ended
|
|
|
|
December 31,
|
|
|
December 31,
|
|
|
December 31,
|
|
|
|
2006
|
|
|
2007
|
|
|
2008
|
|
|
Europe
|
|
$
|
12,890
|
|
|
$
|
22,202
|
|
|
$
|
23,965
|
|
Asia
|
|
|
15,160
|
|
|
|
28,150
|
|
|
|
44,350
|
|
North America
|
|
|
3,499
|
|
|
|
|
|
|
|
|
|
Australia
|
|
|
|
|
|
|
|
|
|
|
6,767
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
31,549
|
|
|
$
|
50,352
|
|
|
$
|
75,082
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Vessels operate on a worldwide basis and are not restricted to
specific locations. Accordingly, it is not possible to allocate
the assets of these operations to specific countries.
Marshall Islands and Panama do not impose a tax on international
shipping income. Under the laws of Marshall Islands and Panama,
the countries of the vessel-owning subsidiaries
incorporation and vessels registration, the vessel-owning
subsidiaries are subject to registration and tonnage taxes which
have been included in vessel operating expenses in the
accompanying consolidated statements of income.
Pursuant to Section 883 of the Internal Revenue Code of the
United States, U.S. source income from the international
operation of ships is generally exempt from U.S. income tax
if the company operating the ships meets certain incorporation
and ownership requirements. Among other things, in order to
qualify for this exemption, the company operating the ships must
be incorporated in a country which grants an equivalent
F-24
NAVIOS
MARITIME PARTNERS L.P.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Expressed
in thousands of U.S. Dollars except unit and per unit amounts)
exemption from income taxes to U.S. corporations. All the
vessel-owning subsidiaries satisfy these initial criteria. In
addition; these companies must meet an ownership test. The
Management of the Company believes that this ownership test was
satisfied prior to the IPO by virtue of a special rule
applicable to situations where the ship operating companies are
beneficially owned by a publicly traded company. Although not
free from doubt, Management also believes that the ownership
test will be satisfied based on the trading volume and ownership
of Navios Partners units, but no assurance can be given
that this will remain so in the future.
NOTE 14 COMMITMENTS
AND CONTINGENCIES
Navios Partners is involved in various disputes and arbitration
proceedings arising in the ordinary course of business.
Provisions have been recognized in the financial statements for
all such proceedings where Navios Partners believes that a
liability may be probable, and for which the amounts are
reasonably estimable, based upon facts known at the date the
financial statements were prepared.
In the opinion of management, the ultimate disposition of these
matters is immaterial and will not adversely affect Navios
Partners financial position, results of operations or liquidity.
In March 2008, Navios Partners took delivery of Navios
Aldebaran, a newbuilding Panamax vessel of 76,500 dwt. The
vessel came into the fleet under a long-term charter-in
agreement with a purchase option exercisable in 2013. Navios
Partners has chartered-out the vessel for a period of five years
at a net daily charter-out rate of approximately US$28.
In addition, in connection with the IPO, Navios Patrners entered
into a share purchase agreement with a subsidiary of Navios
Holdings to purchase its interests in the subsidiary that owns
the newbuilding Capesize Navios TBN I at the pre-determined
purchase price of $130,000. Navios Partners intenda to purchase
from a subsidiary of Navios Holdings its interests in the
subsidiary that owns the newbuilding upon delivery of the vessel
to the subsidiary, which is expected to be in June 2009.
The future contractual obligations of Navios Partners are as
follows (charter-in rates are presented net of commissions):
|
|
|
|
|
|
|
Amount
|
|
|
2009
|
|
$
|
139,864
|
|
2010
|
|
|
9,864
|
|
2011
|
|
|
9,864
|
|
2012
|
|
|
9,891
|
|
2013
|
|
|
9,864
|
|
2014 and thereafter
|
|
|
7,599
|
|
|
|
|
|
|
|
|
$
|
186,946
|
|
|
|
|
|
|
F-25
NAVIOS
MARITIME PARTNERS L.P.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Expressed
in thousands of U.S. Dollars except unit and per unit amounts)
The future minimum contractual lease income, net of commissions,
is as follows:
|
|
|
|
|
|
|
Amount
|
|
|
2009
|
|
$
|
118,110
|
|
2010
|
|
|
97,421
|
|
2011
|
|
|
82,014
|
|
2012
|
|
|
78,181
|
|
2013
|
|
|
57,117
|
|
2014 and thereafter
|
|
|
44,389
|
|
|
|
|
|
|
|
|
$
|
477,232
|
|
|
|
|
|
|
NOTE 16 TRANSACTIONS
WITH RELATED PARTIES AND AFFILIATES
Management fees: Pursuant to the management
agreement dated November 16, 2007, the Manager, a
wholly-owned subsidiary of Navios Holdings, provides commercial
and technical management services to Navios Partners
vessels for a daily fee of $4 per owned Panamax vessel and $5
per owned Capesize vessel. This daily fee covers all of the
vessels operating expenses, including the cost of drydock
and special surveys. The daily rates are fixed for a period of
two years until November 16, 2009 whereas the initial term
of the agreement is until November 16, 2012. Total
management fees for the year ended December 31, 2006, 2007
and 2008 amounted to $0, $920 and $9,275, respectively.
General & administrative
expenses: Pursuant to the administrative services
agreement dated November 16, 2007, the Manager also
provides administrative services to Navios Partners which
include: bookkeeping, audit and accounting services, legal and
insurance services, administrative and clerical services,
banking and financial services, advisory services, client and
investor relations and other. The Manager is reimbursed for
reasonable costs and expenses incurred in connection with the
provision of these services.
Prior to the IPO, the Manager provided the Companys
vessels with a wide range of services such as chartering,
technical support and maintenance, insurance, consulting,
financial and accounting services for a per vessel fixed monthly
fee of $15 for the period prior to IPO in 2007 and $17 for 2006.
Such fee was adjusted at the end of the year, where the
Managers remaining profit or loss was reallocated to the
managed vessels, based on the managed days per vessel. The
Manager was responsible for managing all cash transactions of
the Company, as the Company did not maintain any cash accounts.
The Manager paid any costs relating to the operation of the
Companys vessels. Furthermore, all revenues from the
vessels operations were directly deposited to the Managers
bank accounts and used to fund the Companys expenses.
Total general and administrative expenses charged by Navios
Holdings for the year ended December 31, 2006, 2007 and
2008 amounted to $698, $1,220 and $1,490, respectively.
Balance due to related parties: Included in
the current liabilities as at December 31, 2008 is an
amount of $1,539 which represents the current account payable to
Navios Holdings and its subsidiaries. The balance mainly
consists of the management fees amounting to $899,
administrative service expenses amounting to $531 and other
expenses owed to affiliated companies amounting to $109. Balance
due to related parties as at December 31, 2007 amounted to
$4,458 and mainly consisted of the deferred acquisition expenses
amounting to $3,816, balance due from Kleimar (see
note 7) amounting to $536 as well as management fees,
administrative service fees and other expenses owed to
affiliated companies amounting to $1,178. Total management fees
and administrative service expenses charged to Navios Partners
amounted to $920 and $1,220 for the year ended December 31,
2007 and $9,275 and $1,490, for the year ended December 31,
2008.
F-26
NAVIOS
MARITIME PARTNERS L.P.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Expressed
in thousands of U.S. Dollars except unit and per unit amounts)
Vessel Acquisitions: On July 1, 2008
Navios Partners acquired from Navios Holdings, the vessel Navios
Aurora I for a purchase price of $79,936, consisting of $35,000
in cash and the issuance of 3,131,415 common units to Navios
Holdings. The per unit price at the day of the delivery was
$14.35 (see note 7).
NOTE 17 FAIR
VALUE OF FINANCIAL INSTRUMENTS
The following methods and assumptions were used to estimate the
fair value of each class of financial instrument:
Cash and cash equivalents: The carrying
amounts reported in the consolidated balance sheets for interest
bearing deposits approximate their fair value because of the
short maturity of these investments. Borrowings: The carrying
amount of the long-term debt approximates its fair value.
The estimated fair values of Navios Partners financial
instruments are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2007
|
|
|
December 31, 2008
|
|
|
|
Book Value
|
|
|
Fair Value
|
|
|
Book Value
|
|
|
Fair Value
|
|
|
Cash and cash equivalent
|
|
$
|
10,095
|
|
|
$
|
10,095
|
|
|
$
|
28,374
|
|
|
$
|
28,374
|
|
Restricted cash
|
|
|
797
|
|
|
|
797
|
|
|
|
|
|
|
|
|
|
Trade receivables
|
|
|
381
|
|
|
|
381
|
|
|
|
313
|
|
|
|
313
|
|
Accounts payable
|
|
|
(570
|
)
|
|
|
(570
|
)
|
|
|
(594
|
)
|
|
|
(594
|
)
|
Long term debt
|
|
|
(165,000
|
)
|
|
|
(165,000
|
)
|
|
|
(235,000
|
)
|
|
|
(235,000
|
)
|
|
|
NOTE 18
|
CASH
DISTRIBUTIONS AND EARNINGS PER UNIT
|
The partnership agreement of Navios Partners requires that all
available cash is distributed quarterly, after deducting
expenses, including estimated maintenance and replacement
capital expenditures and reserves. Distributions may be
restricted by, among other things, the provisions of existing
and future indebtedness, applicable partnership and limited
liability company laws and other laws and regulations. The
amount of the minimum quarterly distribution is $0.35 per unit
or $1.40 unit per year and are made in the following
manner, during the subordination period:
|
|
|
|
|
First, 98% to the holders of common units and 2% to the General
Partner until each common unit has received a minimum quarterly
distribution of $0.35 plus any arrearages from previous quarters;
|
|
|
|
Second, 98% to the holders of subordinated units and 2% to the
General Partner until each subordinated unit has received a
minimum quarterly distribution of $0.35; and
|
|
|
|
Third, 98% to all unitholders, pro rata, and 2% to General
Partner, until each unit has received an aggregate amount of
$0.4025
|
F-27
NAVIOS
MARITIME PARTNERS L.P.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Expressed
in thousands of U.S. Dollars except unit and per unit amounts)
Thereafter there is incentive distribution rights held by the
General Partner, which are analyzed as follows:
|
|
|
|
|
|
|
|
|
|
|
Marginal Percentage Interest in Distributions
|
|
|
|
|
Common and
|
|
|
|
|
Total Quarterly Distribution
|
|
Subordinated
|
|
General
|
|
|
Target Amount
|
|
Unitholders
|
|
Partner
|
|
Minimum Quarterly Distribution
|
|
$0.35
|
|
98%
|
|
2%
|
First Target Distribution
|
|
up to $0.4025
|
|
98%
|
|
2%
|
Second Target Distribution
|
|
above $0.4025 up to $0.4375
|
|
85%
|
|
15%
|
Third Target Distribution
|
|
above $0.4375 up to $0.525
|
|
75%
|
|
25%
|
Thereafter
|
|
above $0.525
|
|
50%
|
|
50%
|
During the year ended December 31, 2008 the aggregate
amount of cash distribution paid was $24,552.
Basic net income per unit is determined by dividing net income
by the weighted average number of units outstanding during the
period. Diluted net income per unit is calculated in the same
manner as net income per unit, except that the weighted average
number of outstanding units is increased to include the dilutive
effect of outstanding unit options or phantom units. There were
no options or phantom units outstanding during the period ended
December 31, 2007 and the year ended December 31,
2008, respectively.
The general partners interest in net income is calculated
as if all net income for the year was distributed according to
the terms of Navios Partners partnership agreement, regardless
of whether those earnings would or could be distributed. Navios
Partners agreement does not provide for the distribution of net
income; rather, it provides for the distribution of available
cash, which is a contractually defined term that generally means
all cash on hand at the end of each quarter less the amount of
cash reserves established by Navios Partners board of
directors to provide for the proper conduct of Navios
Partners business including reserves for maintenance and
replacement capital expenditure and anticipated credit needs.
The calculations of the basic and diluted earnings per unit are
presented below. For purposes of the earnings per unit (EPU)
calculations, the subordinated units and general partner units
are assumed to be outstanding for periods presented prior to IPO.
F-28
NAVIOS
MARITIME PARTNERS L.P.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Expressed
in thousands of U.S. Dollars except unit and per unit amounts)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consisting of:
|
|
|
|
|
|
|
|
|
|
|
|
|
January 1,
|
|
|
November 16,
|
|
|
|
|
|
|
Year Ended
|
|
|
Year Ended
|
|
|
2007 to
|
|
|
2007
|
|
|
Year Ended
|
|
|
|
December 31,
|
|
|
December 31,
|
|
|
November 15,
|
|
|
to December 31,
|
|
|
December 31,
|
|
|
|
2006
|
|
|
2007
|
|
|
2007
|
|
|
2007
|
|
|
2008
|
|
|
Net income
|
|
|
6,624
|
|
|
|
19,508
|
|
|
|
17,895
|
|
|
|
1,613
|
|
|
|
28,758
|
|
Earnings attributable to:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common unit holders
|
|
|
|
|
|
|
1,581
|
|
|
|
|
|
|
|
1,581
|
|
|
|
18,873
|
|
Subordinated unit holders
|
|
|
6,492
|
|
|
|
17,537
|
|
|
|
17,537
|
|
|
|
|
|
|
|
9,270
|
|
General partner unit holders
|
|
|
132
|
|
|
|
390
|
|
|
|
358
|
|
|
|
32
|
|
|
|
615
|
|
Weighted average units outstanding (basic and diluted)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common unit holders
|
|
|
|
|
|
|
10,500,000
|
|
|
|
|
|
|
|
10,500,000
|
|
|
|
12,074,263
|
|
Subordinated unit holders
|
|
|
7,621,843
|
|
|
|
7,621,843
|
|
|
|
7,621,843
|
|
|
|
7,621,843
|
|
|
|
7,621,843
|
|
General partner unit holders
|
|
|
369,834
|
|
|
|
369,834
|
|
|
|
369,834
|
|
|
|
369,834
|
|
|
|
401,962
|
|
Earnings per unit (basic and diluted):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common unit holders
|
|
$
|
|
|
|
$
|
0.15
|
|
|
$
|
|
|
|
$
|
0.15
|
|
|
$
|
1.56
|
|
Subordinated unit holders
|
|
$
|
0.85
|
|
|
$
|
2.30
|
|
|
$
|
2.30
|
|
|
$
|
|
|
|
$
|
1.22
|
|
General partner unit holders
|
|
$
|
0.36
|
|
|
$
|
1.06
|
|
|
$
|
0.97
|
|
|
$
|
0.09
|
|
|
$
|
1.53
|
|
|
|
NOTE 19
|
SUBSEQUENT
EVENTS
|
On January 21, 2009, the Board of Directors of Navios
Partners authorized its quarterly cash distribution for the
three month period ended December 31, 2008 of $0.40 per
unit. The distribution is payable on February 12, 2009 to
all holders of record of common, subordinated and general
partner units on February 9, 2009. The aggregate amount of
the declared distribution is $8,675.
In January 2009, Navios Partners amended further the terms of
its existing credit facility. The amendment is effective until
January 15, 2010 and provides for (a) repayment of
$40,000 which took place in February 2009, (b) maintaining
cash reserves balance into a pledged account with the agent bank
as follows: $2,500 on January 31, 2009; $5,000 on
March 31, 2009; $7,500 on June 30, 2009, $10,000 on
September 30, 2009; $12,500 on December 31, 2009 and
(c) a margin of 2.25%. Further, the covenants were amended
by (a) reducing the minimum net worth to $100,000,
(b) reducing the VMC (Value Maintenance Covenant) to be at
100% using charter free values, (c) the minimum leverage
covenant to be calculated using charter inclusive adjusted
values until December 31, 2009 and (d) a new VMC was
introduced based on charter attached valuations to be at 143%.
At December 31, 2008, Navios Partners was in compliance
with the financial covenants as required under its January 2009
amended revolving loan facility. However, if we were required to
use the original loan covenants on December 31, 2008 to
test compliance, we may not have been in compliance with certain
covenants using charter free valuations.
In January 2009, Navios Partners and its counterparty to the
Navios Aurora I charter party mutually agreed for a lump sum
amount of approximately $29,500 paid to Navios in February 2009.
Under a new charter agreement, the remaining $26,000 balance
which would have been received under the original charter
contract (adjusted for the $29,500 lump sum payment received)
have been allocated to the period until its original expiration
in 2013 by way of reduced daily charter rate as indicated:
$3/day from
March-April 2009,
$11/day from
May 2009-April 2010, and
$17/day from
May 2010-September 2013.
On February 11, 2009 Navios Aurora I was renamed to Navios
Hope.
F-29
EX-8.1
Exhibit 8.1
Subsidiaries
of Navios Maritime Partners L.P.
Navios Maritime Operating L.L.C., a Marshall Islands limited
liability company
Alegria Shipping Corporation, a Marshall Islands corporation
Felicity Shipping Corporation, a Marshall Islands corporation
Galaxy Shipping Corporation, a Marshall Islands corporation
Gemini Shipping Corporation, a Marshall Islands corporation
Libra Shipping Enterprises Corporation, a Marshall Islands
corporation
Aldebaran Shipping Corporation, a Marshall Islands corporation
Prosperity Shipping Corporation, a Marshall Islands corporation
Fantastiks Shipping Corporation, a Marshall Islands corporation
Nostos ShipManagement Corp., a Marshall Islands corporation
EX-12.1
Exhibit 12.1
CERTIFICATION
OF CHIEF EXECUTIVE OFFICER
PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF
2002
I, Angeliki Frangou, certify that:
1. I have reviewed this annual report on
Form 20-F
for the year ended December 31, 2008 of Navios Maritime
Partners L.P.;
2. Based on my knowledge, this report does not contain any
untrue statement of a material fact or omit to state a material
fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not
misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and
other financial information included in this report, fairly
present in all material respects the financial condition,
results of operations and cash flows of the company as of, and
for, the periods presented in this report;
4. The companys other certifying officer and I are
responsible for establishing and maintaining disclosure controls
and procedures (as defined in Exchange Act
Rules 13a-15(e)
and
15d-15(e),
and internal control over financial reporting (as defined in
Exchange Act
Rules 13a-15(f)
and
15d-15(f))
for the company and have:
a) Designed such disclosure controls and procedures, or
caused such disclosure controls and procedures to be designed
under our supervision, to ensure that material information
relating to the company, including its consolidated subsidiary,
is made known to us by others within those entities,
particularly during the period in which this report is being
prepared;
b) Designed such internal control over financial reporting,
or caused such internal control over financial reporting to be
designed under our supervision, to provide reasonable assurance
regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in
accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the companys
disclosure controls and procedures and presented in this report
our conclusions about the effectiveness of the disclosure
controls and procedures, as of the end of the period covered by
this report on such evaluation; and
d) Disclosed in this report any change in the
companys internal control over financial reporting that
occurred during the period covered by the annual report that has
materially affected, or is reasonably likely to materially
affect, the companys internal control over financial
reporting: and
5. The companys other certifying officer and I have
disclosed, based on our most recent evaluation of internal
control over financial reporting, to the companys auditors
and the audit committee of the companys board of directors
(or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in
the design or operation of internal control over financial
reporting which are reasonably likely to adversely affect the
companys ability to record, process, summarize and report
financial information; and
b) Any fraud, whether or not material, that involves
management or other employees who have a significant role in the
companys internal controls over financial reporting.
Angeliki Frangou
Chief Executive Officer
(Principal Executive Officer)
Date: February 26, 2009
EX-12.2
Exhibit 12.2
CERTIFICATION
OF CHIEF FINANCIAL OFFICER
PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF
2002
I, Michael McClure, certify that:
1. I have reviewed this annual report on
Form 20-F
for the year ended December 31, 2008 of Navios Maritime
Partners L.P.;
2. Based on my knowledge, this report does not contain any
untrue statement of a material fact or omit to state a material
fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not
misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and
other financial information included in this report, fairly
present in all material respects the financial condition,
results of operations and cash flows of the company as of, and
for, the periods presented in this report;
4. The companys other certifying officer and I are
responsible for establishing and maintaining disclosure controls
and procedures (as defined in Exchange Act
Rules 13a-15(e)
and
15d-15(e),
and internal control over financial reporting (as defined in
Exchange Act
Rules 13a-15(f)
and
15d-15(f))
for the company and have:
a) Designed such disclosure controls and procedures, or
caused such disclosure controls and procedures to be designed
under our supervision, to ensure that material information
relating to the company, including its consolidated subsidiary,
is made known to us by others within those entities,
particularly during the period in which this report is being
prepared;
b) Designed such internal control over financial reporting,
or caused such internal control over financial reporting to be
designed under our supervision, to provide reasonable assurance
regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in
accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the companys
disclosure controls and procedures and presented in this report
our conclusions about the effectiveness of the disclosure
controls and procedures, as of the end of the period covered by
this report on such evaluation; and
d) Disclosed in this report any change in the
companys internal control over financial reporting that
occurred during the period covered by the annual report that has
materially affected, or is reasonably likely to materially
affect, the companys internal control over financial
reporting: and
5. The companys other certifying officer and I have
disclosed, based on our most recent evaluation of internal
control over financial reporting, to the companys auditors
and the audit committee of the companys board of directors
(or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in
the design or operation of internal control over financial
reporting which are reasonably likely to adversely affect the
companys ability to record, process, summarize and report
financial information; and
b) Any fraud, whether or not material, that involves
management or other employees who have a significant role in the
companys internal controls over financial reporting.
Michael McClure
Chief Financial Officer
(Principal Financial Officer)
Date: February 26, 2009
EX-13.1
Exhibit 13.1
Certification
Pursuant To Section 906 of the Sarbanes-Oxley Act Of
2002
(Subsections (A) And (B) Of Section 1350,
Chapter 63 of Title 18, United States Code)
Pursuant to section 906 of the Sarbanes-Oxley Act of 2002
(subsections (a) and (b) of section 1350,
chapter 63 of title 18, United States Code), each of
the undersigned officers of Navios Maritime Partners L.P., (the
Company), does hereby certify, to such
officers knowledge, that:
(i) the Annual Report on
Form 20-F
for the fiscal year ended December 31, 2008 (the
Form 20-F)
of the Company fully complies with the requirements of
Section 13(a) or 15(d) of the Securities Exchange Act of
1934;
(ii) and the information contained in the
Form 20-F
fairly presents, in all material respects, the financial
condition and results of operations of the Company.
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Dated: February 26, 2009
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/s/ Angeliki
Frangou
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Angeliki Frangou
Chief Executive Officer
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Dated: February 26, 2009
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/s/ Michael
McClure
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Michael McClure
Chief Financial Officer
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EX-23.1
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby
consent to the incorporation by reference in the Registration
Statement on Form F-3 (No. 333-157000) of Navios Maritime Partners L.P. of our report dated February 26, 2009 relating to
the financial statements and the effectiveness of internal control over financial reporting, which
appears in this Form 20-F.
PricewaterhouseCoopers S.A.
Athens, Greece
February 26, 2009