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SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM 6-K

 

 

REPORT OF FOREIGN PRIVATE ISSUER

PURSUANT TO RULE 13A-16 OR 15D-16

OF THE SECURITIES EXCHANGE ACT OF 1934

DATED: July 29, 2016

Commission File No. 001-36738

 

 

NAVIOS MARITIME MIDSTREAM PARTNERS L.P.

 

 

7 Avenue de Grande Bretagne, Office 11B2

Monte Carlo, MC 98000 Monaco

(Address of Principal Executive Offices)

 

 

Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.

Form 20-F   x             Form 40-F   ¨

Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1):

Yes   ¨             No    x

Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7):

Yes   ¨             No    x

Indicate by check mark whether the registrant by furnishing the information contained in this Form is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.

Yes   ¨             No    x

If “Yes” is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b):

N/A

 

 

 


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NAVIOS MARITIME MIDSTREAM PARTNERS L.P.

FORM 6-K

TABLE OF CONTENTS

 

     Page  

Operating and Financial Review

     3   

Exhibit List

     19   

Financial Statements Index

     F-1   

 

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The information contained in this Report is hereby incorporated by reference into the Registration Statement on Form F-3, File No. 333-208623.

Operating and Financial Review

The following is a discussion of the financial condition and results of operations for the three and six month periods ended June 30, 2016 and 2015 of Navios Maritime Midstream Partners L.P. (referred to herein as “we”, “us”, “Navios Midstream” or the “Company”). All of the financial statements have been prepared in accordance with generally accepted accounting principles in the United States of America (“US GAAP”). You should read this section together with the consolidated financial statements and the accompanying notes included in Navios Midstream’s 2015 Annual Report filed on Form 20-F with the Securities and Exchange Commission.

This report contains forward-looking statements (as defined in Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended) concerning future events and expectations, including with respect to Navios Midstream’s future dividends and Navios Midstream’s growth strategy and measures to implement such strategy; including expected vessel acquisitions and entering into further time charters. Words such as “may”, “expects”, “intends”, “plans”, “believes”, “anticipates”, “hopes”, “estimates”, and variations of such words and similar expressions are intended to identify forward-looking statements. Such statements include comments regarding expected revenue and time charters. These forward-looking statements are based on the information available to, and the expectations and assumptions deemed reasonable by, Navios Midstream at the time this filing was made. Although Navios Midstream believes that the expectations reflected in such forward-looking statements are reasonable, no assurance can be given that such expectations will prove to have been correct. These statements involve known and unknown risks and are based upon a number of assumptions and estimates which are inherently subject to significant uncertainties and contingencies, many of which are beyond the control of Navios Midstream. Actual results may differ materially from those expressed or implied by such forward-looking statements. Factors that could cause actual results to differ materially include, but are not limited to, the creditworthiness of our charterers and the ability of our contract counterparties to fulfill their obligations to us, tanker industry trends, including charter rates and vessel values and factors affecting vessel supply and demand, the aging of our vessels and resultant increases in operation and drydocking costs, the loss of any customer or charter or vessel, our ability to repay outstanding indebtedness, to obtain additional financing and to obtain replacement charters for our vessels, in each case, at commercially acceptable rates or at all, increases in costs and expenses, including but not limited to: crew wages, insurance, provisions, port expenses, lube oil, bunkers, repairs, maintenance and general and administrative expenses, the expected cost of, and our ability to comply with, governmental regulations and maritime self-regulatory organization standards, as well as standard regulations imposed by our charterers applicable to our business, potential liability from litigation and our vessel operations, including discharge of pollutants, general domestic and international political conditions, competitive factors in the market in which Navios Midstream operates; risks associated with operations outside the United States; and other factors listed from time to time in Navios Midstream’s filings with the Securities and Exchange Commission, including its Form 20-Fs and Form 6-Ks. Navios Midstream expressly disclaims any obligations or undertaking to release publicly any updates or revisions to any forward-looking statements contained herein to reflect any change in Navios Midstream’s expectations with respect thereto or any change in events, conditions or circumstances on which any statement is based. Navios Midstream makes no prediction or statement about the performance of its common units.

Overview

Navios Midstream was formed on October 13, 2014, as a Marshall Islands limited partnership to own, operate and acquire crude oil tankers, refined petroleum product tankers, chemical tankers, and LPG tankers under long-term employment contracts. Navios Maritime Midstream Partners GP LLC, a wholly-owned subsidiary of Navios Maritime Acquisition Corporation (“Navios Acquisition”), was formed on October 13, 2014 to act as our general partner. On November 18, 2014, we completed our initial public offering (“IPO”).

Equity Transactions

As of June 30, 2016, there were outstanding: 9,342,692 common units, 9,342,692 subordinated units, 1,592,920 Series A subordinated units and 413,843 general partnership units. As of June 30, 2016, Navios Acquisition owned a 60.85% limited partner interest in Navios Midstream, which included a 2.0% general partner interest.

Our Fleet

Our fleet consists of six VLCCs, which have an average remaining employment term of approximately 4.8 years. They are chartered to three strong counterparties, Dalian Ocean Shipping Co. Ltd., a Chinese state-owned enterprise, SK Shipping Company Limited and Formosa Petrochemical Corporation, a Taiwan Stock Exchange-listed company.

 

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The following table provides summary information about our fleet as of July 28, 2016:

 

Vessels

   Type      Built/
Delivery
Date
     DWT      Net
Charter
Rate (1)
     Profit Share to Owner     Expiration
Date (2)
 

Shinyo Ocean

     VLCC         2001         281,395       $ 38,400         50 % above    $ 43,500 (4)       January 2017   
            $ 38,400             January 2019 (3)    

Shinyo Kannika

     VLCC         2001         287,175       $ 38,025         50 % above    $ 44,000 (5)       February 2017   
            $ 38,025             February 2019 (3)    

Shinyo Saowalak

     VLCC         2010         298,000       $ 48,153         35 % above    $ 54,388 (6)       June 2025   
                 40 % above    $ 59,388 (6)    
                 50 % above    $ 69,388 (6)    

Shinyo Kieran

     VLCC         2011         297,066       $ 48,153         35 % above    $ 54,388 (6)       June 2026   
                 40 % above    $ 59,388 (6)    
                 50 % above    $ 69,388 (6)    

C. Dream

     VLCC         2000         298,570       $ 29,625         50 % above    $ 30,000 (8)       March 2019   
                 40 % above    $ 40,000 (8)    

Nave Celeste

     VLCC         2003         298,717       $ 42,705           —          December 2016   
            $ 35,000           —          December 2018 (7)    

 

(1) Net time charter-out rate per day in dollars (net of commissions).
(2) Estimated dates assuming midpoint of redelivery of charterers.
(3) Includes a backstop period for the Shinyo Ocean and the Shinyo Kannika. Navios Acquisition has provided a backstop commitment to charter-in the vessels for a two-year period as of their scheduled redelivery at the currently contracted rate if the market charter rate is lower than the currently contracted rate. Conversely, if market charter rates are higher than the currently contracted rates at the time of the redelivery of the vessels, such vessels will be chartered out to third-party charterers at prevailing market rates and Navios Acquisition’s backstop commitment will not be triggered. The backstop commitment does not include the profit share as set forth in the table. All data in the table is based on a charter length inclusive of both the initial and backstop periods.
(4) Calculated semi-annually on the basis of the daily values of the Baltic Exchange Tanker Route AG/Japan for the past two quarters adjusted for the vessel’s specifications (i.e. actual consumption and other voyage expenses). Any profit is split between the owner and the charterer with the owner receiving the percentage stated in the table above.
(5) Calculated semi-annually on the basis of the weighted average of the daily values of four Baltic Exchange Tanker Routes for the past two quarters adjusted for certain agreed specifications (i.e. actual consumption and other voyage expenses). Any profit is split between the owner and the charterer with the owner receiving the percentage stated in the table above.
(6) Calculated annually on the basis of the weighted average of the daily values of four Baltic Exchange Tanker Routes for the past four quarters adjusted for certain agreed specifications (i.e. actual consumption and other voyage expenses). Any profit is split between the owner and the charterer with the owner receiving the percentage stated in the table above.
(7) Includes a backstop period for the Nave Celeste. Navios Acquisition has provided a backstop commitment to charter-in the Nave Celeste for a two-year period as of its scheduled redelivery, at the net time charter-out rate per day (net of commissions) of $35,000 if the market charter rate is lower than the charter-out rate of $35,000. Conversely, if market charter rates are higher, such vessels will be chartered out to third-party charterers at prevailing market rates and Navios Acquisition’s backstop commitment will not be triggered. The backstop commitment does not include the profit share as set forth in the table. All data in the table is based on a charter length inclusive of both the initial and backstop periods.
(8) Calculated annually based on the actual earnings of the vessel. Any profit is split between the owner and the charterer with the owner receiving the percentage stated in the table above.

 

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Option Vessels

Pursuant to the share purchase agreement we entered into with Navios Acquisition at the closing of the IPO, we have options, exercisable through November 18, 2016, to purchase the following five VLCCs from Navios Acquisition at fair market value. Although we anticipate that we may exercise some or all of our options to purchase the following five VLCCs, the timing of such purchases is uncertain and each such purchase is subject to various conditions, including reaching an agreement with Navios Acquisition regarding the fair market value of the vessel and the availability of financing, which we anticipate would be from external sources. Generally, we expect to fund the acquisition of any or all of the five additional VLCCs we may elect to purchase with cash from operations, bank borrowings and the issuance of debt and equity securities.

The following table provides summary information about the vessels subject to the options as of July 28, 2016:

 

Vessels

   Type      Built/
Delivery
Date
     DWT      Net Charter
Rate (1)
    Profit
Share
to

Owner
     Expiration
Date (2)
 

Nave Galactic

     VLCC         2009         297,168         Floating Rate (3)       —          September 2017   
            $ 35,000           February 2019 (6)  

Nave Quasar

     VLCC         2010         297,376         Floating Rate (4)       —          March 2018   
            $ 35,000           February 2019 (6)  

Nave Buena Suerte

     VLCC         2011         297,491         Floating Rate (5)       —          August 2016   

Nave Neutrino

     VLCC         2003         298,287       $ 43,480        —          September 2016   
            $ 37,520        —          September 2017   

Nave Electron

     VLCC         2002         305,178         Floating Rate (4)       —          December 2017   

 

(1) Net time charter-out rate per day in dollars (net of commissions).
(2) Estimated dates assuming midpoint of redelivery of charterers.
(3) Rate is based upon daily Baltic International Tanker Routes, Route Tanker Dirty 3 ME Gulf to Japan (“BITR TD3”). The contract provides a minimum rate of $29,625 net per day and $27,156 net per day for the last nine months of the contract.
(4) Rate based on VLCC pool earnings.
(5) Rate is based upon daily BITR TD3. The contract provides a minimum rate of $29,625 net per day.
(6) Includes a backstop period for both Nave Galactic and Nave Quasar. Navios Acquisition has provided a backstop commitment to charter-in the Nave Galactic and the Nave Quasar for a four-year period as of their scheduled redelivery, at the net time charter-out rate per day (net of commissions) of $35,000 if the market charter rate is lower than the charter-out rate of $35,000. Conversely, if market charter rates are higher, such vessels will be chartered out to third-party charterers at prevailing market rates and Navios Acquisition’s backstop commitment will not be triggered. The backstop commitment does not include the profit share as set forth in the table. All data in the table is based on a charter length inclusive of both the initial and backstop periods.

Our Customers

We provide seaborne shipping services under charters with customers that we believe are creditworthy.

For the six month period ended June 30, 2016, our three customers were Dalian Ocean Shipping Co. Ltd., SK Shipping Company Limited and Formosa Petrochemical Corporation that accounted for 70.0%, 15.2% and 14.8%, respectively, of our revenue. For the year ended December 31, 2015, these three customers accounted for 75.6%, 6.1% and 18.3%, respectively, of our revenue.

Although we believe that if any one of our charters were terminated we could re-charter 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 re-charter our vessel on a favorable basis due to the current market conditions, or otherwise.

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 Tankers Management Inc. (the “Manager”) (which provides for a fixed management fee through November 18, 2016) 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:

 

    the duration of the charters;

 

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    the level of spot and long-term market rates at the time of charter;

 

    decisions relating to vessel acquisitions and disposals;

 

    the amount of time spent positioning vessels;

 

    the amount of time that vessels spend undergoing repairs and upgrades in drydock;

 

    the age, condition and specifications of the vessels; and

 

    the aggregate level of supply and demand in the tanker 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.

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. Please read “Risk Factors” in our 2015 Annual Report on Form 20-F for a discussion of certain risks inherent in our business.

Results of Operations

Overview

The financial condition and the results of operations presented for the six month periods ended June 30, 2016 and 2015 of Navios Midstream discussed below include the following entities:

 

Company name

   Vessel name    Country of
incorporation
   2016      2015  

Navios Maritime Midstream Operating LLC

   N/A    Marshall Islands      1/1-6/30         1/1-6/30   

Navios Maritime Midstream Partners L.P.

   N/A    Marshall Islands      1/1-6/30         1/1-6/30   

Navios Maritime Midstream Finance (US) Inc.

   Co-Borrower    Delaware      1/1-6/30         6/4-6/30   

Shinyo Kannika Limited

   Shinyo Kannika    Hong Kong      1/1-6/30         1/1-6/30   

Shinyo Ocean Limited

   Shinyo Ocean    Hong Kong      1/1-6/30         1/1-6/30   

Shinyo Saowalak Limited

   Shinyo Saowalak    British Virgin Is.      1/1-6/30         1/1-6/30   

Shinyo Kieran Limited

   Shinyo Kieran    British Virgin Is.      1/1-6/30         1/1-6/30   

Shinyo Dream Limited

   C. Dream    Hong Kong      1/1-6/30         6/18-6/30   

Sikinos Shipping Corporation

   Nave Celeste    Marshall Islands      1/1-6/30         6/18-6/30   

The accompanying interim condensed consolidated financial statements of Navios Midstream are unaudited, but, in the opinion of management, contain all adjustments necessary to present a fair statement of results, in all material respects, Navios Midstream’s condensed consolidated financial position as of June 30, 2016 and the condensed consolidated results of operations for the three and six month periods ended June 30, 2016 and 2015. The footnotes are condensed as permitted by the requirements for interim financial

 

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statements and, accordingly, do not include information and disclosures required under US GAAP for complete financial statements. All such adjustments are deemed to be of a normal, recurring nature. The results of operations for the interim periods are not necessarily indicative of the results to be expected for the full year. These financial statements should be read in conjunction with the consolidated financial statements and related notes included in Navios Midstream’s Annual Report on Form 20-F for the year ended December 31, 2015.

FINANCIAL HIGHLIGHTS

The following table presents consolidated revenue and expense information for the three and six month periods ended June 30, 2016 and 2015.

 

     Three Month
Period ended
June 30, 2016
(unaudited)
     Three Month
Period ended
June 30, 2015
(unaudited)
     Six Month
Period ended
June 30, 2016
(unaudited)
     Six Month
Period ended
June 30, 2015
(unaudited)
 

Revenue

   $ 22,695       $ 18,350       $ 46,844       $ 35,053   

Time charter expenses

     (338      (197      (749      (377

Direct vessel expenses

     (952      (289      (1,588      (578

Management fees

     (5,187      (3,705      (10,374      (7,125

General and administrative expenses

     (724      (482      (1,550      (1,017

Depreciation and amortization

     (6,378      (5,076      (12,779      (9,953

Interest income

     69         —          69         —    

Interest expenses and finance cost

     (3,284      (3,228      (6,440      (4,363

Other (expense)/ income, net

     (12      21         (49      66   

Net income

   $ 5,889       $ 5,394       $ 13,384       $ 11,706   

EBITDA (1)

   $ 16,434       $ 13,987       $ 34,122       $ 26,600   

Operating Surplus (1)

   $ 10,000       $ 10,299       $ 21,271       $ 19,723   

 

(1) EBITDA and Operating Surplus are non-GAAP financial measures. See “—Reconciliation of EBITDA to Net Cash from Operating Activities, Operating Surplus and Available Cash for Distribution” for a description of EBITDA and Operating Surplus and a reconciliation of EBITDA and Operating Surplus to the most comparable measure under US GAAP. Operating surplus is presented only for periods after the closing of the IPO on November 18, 2014.

Period over Period Comparisons

For the Three Month Period ended June 30, 2016 compared to the Three Month Period ended June 30, 2015

Revenue:   Revenue for the three month period ended June 30, 2016 increased by $4.3 million to $22.7 million, as compared to $18.4 million for the same period in 2015. The increase was due to the acquisition of the Nave Celeste and the C. Dream in June 2015 and an increase of $1.2 million in profit sharing recognized in relation to certain charters for the three month period ended June 30, 2016, as compared to the same period of 2015. Time Charter Equivalent (“TCE”) was $45,783 for the three month period ended June 30, 2016 and $46,545 for the three month period ended June 30, 2015. The decrease in TCE was due to the lower average charter rate of the two VLCCs acquired in June 2015, compared to the existing fleet.

Time charter expenses:   Time charter expenses for the three month period ended June 30, 2016 were $0.3 million, as compared to $0.2 million for the three month period ended June 30, 2015.

Direct vessel expenses:  Direct vessel expenses, comprised of the amortization of dry dock and special survey costs, of certain vessels in our fleet amounted to $1.0 million for the three month period ended June 30, 2016, as compared to $0.3 million for the three month period ended June 30, 2015. The increase is due to certain vessels of our fleet having undergone drydocking and special survey.

Management fees:  Management fees for the three month period ended June 30, 2016 increased by $1.5 million to $5.2 million, as compared to $3.7 million for the three month period ended June 30, 2015. The increase was due to the acquisition of the two VLCCs in June 2015.

General and administrative expenses:  Total general and administrative expenses for the three month period ended June 30, 2016 increased by $0.2 million to $0.7 million, as compared to $0.5 million for the three month period ended June 30, 2015, due to an

 

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increase in legal and professional fees and in general and administrative expenses paid to the Manager. The expenses charged by the Manager for administrative services were $0.4 million for the three month period ended June 30, 2016 as compared to $0.2 million for the three month period ended June 30, 2015.

Depreciation and amortization:  Depreciation and amortization for the three month period ended June 30, 2016 amounted to $6.4 million as compared to $5.1 million for the three month period ended June 30, 2015, due to the acquisition of the Nave Celeste and the C. Dream in June 2015. Depreciation of a vessel is calculated using an estimated useful life of 25 years for the date the vessel was originally delivered from the shipyard. Intangible assets are amortized over the contract periods, which ranged from 6.34 to 15.00 years at inception.

Interest expense and finance cost:  Interest expense and finance cost amounted to $3.3 million for the three month period ended June 30, 2016 as compared to $3.2 million for the three month period end June 30, 2015. After the closing of the IPO on November 18, 2014, we entered into a loan agreement with Credit Suisse AG of up to $126.0 million, which was prepaid in June 2015. On June 18, 2015, Navios Midstream and Navios Maritime Midstream Partners Finance (US) Inc. (“Navios Finance”), as co-borrowers, completed the issuance of the $205.0 million Term Loan B (the “Term Loan B”). For each of the three month periods ended June 30, 2016 and 2015, the outstanding weighted average loan balance was $203.5 million and $134.0 million, respectively, and the weighted average interest rate was 5.50% and 3.75%, respectively.

Operating surplus: Navios Midstream generated operating surplus for the three month period ended June 30, 2016 of $10.0 million as compared to $10.3 million for the three month period ended June 30, 2015. Operating Surplus is a non-GAAP financial measure used by certain investors to assist in evaluating a partnership’s ability to make quarterly cash distributions. (See “Reconciliation of EBITDA to Net Cash from Operating Activities, EBITDA, Operating Surplus and Available Cash for Distribution” contained herein).

For the Six Month Period ended June 30, 2016 compared to the Six Month Period ended June 30, 2015

Revenue:   Revenue for the six month period ended June 30, 2016 increased by approximately $11.8 million to $46.8 million, as compared to $35.1 million for the same period in 2015. The increase was due to the acquisition of the Nave Celeste and the C. Dream in June 2015 and an increase of $1.9 million in profit sharing recognized in relation to certain charters for the six month period ended June 30, 2016, as compared to the same period of 2015. TCE was $44,565 for the six month period ended June 30, 2016 and $46,234 for the six month period ended June 30, 2015. The decrease in TCE was due to the lower average charter rate of the two VLCCs acquired in June 2015, compared to the existing fleet.

Time charter expenses:   Time charter expenses for the six month period ended June 30, 2016 were $0.7 million, as compared to $0.4 million for the six month period ended June 30, 2015.

Direct vessel expenses:  Direct vessel expenses, comprised of the amortization of dry dock and special survey costs, of certain vessels in our fleet amounted to $1.6 million for the six month period ended June 30, 2016, as compared to $0.6 million for the six month period ended June 30, 2015.

Management fees:  Management fees for the six month period ended June 30, 2016 increased by approximately $3.2 million to $10.4 million, as compared to $7.1 million for the six month period ended June 30, 2015, due to the acquisition of the Nave Celeste and the C. Dream in June 2015.

General and administrative expenses:  Total general and administrative expenses for the six month period ended June 30, 2016 increased by approximately $0.5 million to $1.6 million, as compared to $1.0 million for the six month period ended June 30, 2015, due to a $0.2 million increase in legal and professional fees and a $0.3 million increase in general and administrative expenses paid to the Manager. For the six month period ended June 30, 2016, the expenses charged by Navios Maritime Holdings Inc. (“Navios Holdings”) for administrative services were $0.8 million compared to $0.4 million for the six month period ended June 30, 2015.

Depreciation and amortization:  Depreciation and amortization for the six month period ended June 30, 2016 amounted to $12.8 million as compared to $10.0 million for the six month period ended June 30, 2015. The increase was due to the acquisition of the Nave Celeste and the C. Dream on June 18, 2015. Depreciation of vessels is calculated using an estimated useful life of 25 years for the date the vessel was originally delivered from the shipyard. Intangible assets are amortized over the contract periods, which ranged from 6.34 to 15.00 years at inception.

 

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Interest expense and finance cost:  Interest expense and finance cost for the six month period ended June 30, 2016 amounted to $6.4 million as compared to $4.4 million for the six month period ended June 30, 2015. After the closing of the IPO on November 18, 2014, we entered into a loan agreement with Credit Suisse AG of up to $126.0 million, which was prepaid in June 2015. On June 18, 2015, Navios Midstream and Navios Finance, as co-borrowers, completed the issuance of the $205.0 million Term Loan B. For each of the six month periods ended June 30, 2016 and 2015, the outstanding weighted average loan balance was $203.7 million and $129.5 million, respectively, and the weighted average interest rate was 5.50% and 3.51%, respectively.

Operating surplus:   Navios Midstream generated operating surplus for the six month period ended June 30, 2016 of $21.3 million as compared to $19.7 million for the same period ended June 30, 2015. Operating Surplus is a non-GAAP financial measure used by certain investors to assist in evaluating a partnership’s ability to make quarterly cash distributions. (See “Reconciliation of EBITDA to Net Cash from Operating Activities, EBITDA, Operating Surplus and Available Cash for Distribution” contained herein).

Liquidity and Capital Resources

Our primary short-term liquidity needs will be to fund general working capital requirements and drydocking expenditures, while our long-term liquidity needs are expected to 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. We anticipate that our primary sources of funds for our short-term liquidity needs will be cash flows from operations and borrowings which we believe will be sufficient to meet our existing short-term liquidity needs for at least the next 12 months. Generally, our long-term sources of funds will be from cash from operations, long-term borrowings and other debt or equity financings. We expect that we will rely upon external financing sources, including bank and other borrowings, to fund acquisitions and expansion and investment capital expenditures. We cannot assure you that we will be able to secure adequate financing or obtain additional funds on favorable terms to meet our liquidity needs.

As of June 30, 2016, an amount of $203.0 million was outstanding under the Term Loan B. The weighted average interest rate for the six month period ended June 30, 2016 was 5.50%.

As of June 30, 2016, there were outstanding: 9,342,692 common units, 9,342,692 subordinated units, 1,592,920 subordinated Series A units and 413,843 general partnership units.

On July 29, 2016, Navios Midstream entered into a Continuous Offering Program Sales Agreement (the “Sales Agreement”) with S. Goldman Capital LLC, as sales agent (the “Agent”), pursuant to which Navios Midstream may issue and sell from time to time through the Agent common units representing limited partner interests having an aggregate offering price of up to $25.0 million. Sales of the units are to be made pursuant to the Company’s shelf registration statement filed on Form F-3 (File No. 333-208623) with the Securities and Exchange Commission and declared effective on January 4, 2016. The Sales Agreement contains, among other things, customary representations, warranties and covenants by Navios Midstream and indemnification obligations of Navios Midstream and the Agent as well as certain termination rights for both Navios Midstream and the Agent. The foregoing description of the Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Agreement, a copy of which is filed herewith as Exhibit 1.1 and is incorporated by reference herein.

Credit Facilities

Term Loan B:  On June 18, 2015, Navios Midstream and Navios Finance, as co-borrowers, completed the issuance of the $205.0 million Term Loan B. The Term Loan B is set to mature on June 18, 2020 and is repayable in equal quarterly installments of 0.25% of the initial principal amount of the Term Loan B, beginning on September 18, 2015, with a final payment of the aggregate principal amount of the Term Loan B, plus accrued and unpaid interest, due on maturity. The Term Loan B bears interest at LIBOR plus 4.50% per annum, is secured by first priority mortgages covering six vessels owned by subsidiaries of Navios Midstream, in addition to other collateral, and is guaranteed by such subsidiaries.

The Term Loan B requires maintenance of a loan to value ratio of no greater than 0.85 to 1.0 and a minimum interest coverage ratio of at least 3.75 to 1.0, and other restrictive covenants including restrictions on indebtedness, liens, acquisitions and investments, restricted payments and dispositions. The Term Loan B also provides for excess cash flow prepayments and customary events of default.

As of June 30, 2016, an amount of $203.0 million was outstanding under this facility. The weighted average interest rate for the six month period ended June 30, 2016 was 5.50%.

As of June 30, 2016, Navios Midstream was in compliance with the covenants set forth in the Term Loan B.

 

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The following table presents cash flow information derived from the unaudited condensed consolidated statements of cash flows of Navios Midstream for the six month periods ended June 30, 2016 and 2015.

 

     Six Month
Period Ended
June 30,
2016
($’000)
(Unaudited)
     Six Month
Period Ended
June 30,
2015
($’000)
(Unaudited)
 

Net cash provided by operating activities

   $ 19,394       $ 17,717   

Net cash used in investing activities

     (500      (72,252

Net cash (used in)/ provided by financing activities

     (18,509      58,083   

Increase in cash and cash equivalents

   $ 385       $ 3,548   

Cash provided by operating activities for the six month period ended June 30, 2016 as compared to the six month period ended June 30, 2015:

Net cash provided by operating activities increased by $1.7 million to $19.4 million for the six month period ended June 30, 2016 as compared to $17.7 million for the same period in 2015. The $1.7 million increase is analyzed as follows:

The net income for the six month period ended June 30, 2016 was $13.4 million compared to $11.7 million for the six month period ended June 30, 2015. In determining net cash provided by operating activities for the six month period ended June 30, 2016, net income was adjusted for the effect of depreciation and amortization of $12.8 million, $0.7 million for amortization of deferred financing cost and $1.6 million for the amortization of drydock and special survey costs. In determining net cash provided by operating activities for the six month period ended June 30, 2015, net income was adjusted for the effect of depreciation and amortization of $10.0 million, $2.0 million for amortization of deferred financing cost and $0.6 million for the amortization of drydock and special survey costs.

Amounts due to related parties as of June 30, 2016 and December 31, 2015 were $0.4 million, which represented amounts payable to related parties and were mainly related to voyage expenses of our vessels.

Amounts due from related parties as of June 30, 2016 and December 31, 2015 were $7.0 million and $2.8 million, respectively, which mainly related to payment of special survey expenses and management fees.

Accounts receivable increased by $1.8 million from $5.1 million for the year ended December 31, 2015 to $6.9 million as of June 30, 2016 due to the increase in receivables from charterers.

Accounts payable increased by $1.7 million from $0.4 million for the year ended December 31, 2015 to $2.1 million for the six month period ended June 30, 2016. This increase was attributable to the increase in voyage expenses payable by $1.3 million, in brokers expenses payable by $0.3 million, and in various expenses by $0.1 million.

Prepaid expenses and other current assets were $0.1 million for each of the periods ended June 30, 2016 and December 31, 2015.

Accrued expenses were $0.6 million and $0.7 million as of June 30, 2016 and December 31, 2015, respectively.

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. Deferred voyage revenue amounted to $2.5 million for the six month period ended June 30, 2016 as compared to $1.9 million for the year ended December 31, 2015.

 

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Cash used in investing activities for the six month period ended June 30, 2016 as compared to the six month period ended June 30, 2015:

Cash used in investing activities was $0.5 million for the six month period ended June 30, 2016 as compared to $72.3 million for the same period in 2015. Net cash used in investing activities for each of the six month periods ended June 30, 2016 and 2015 resulted from amounts, paid for the acquisition of vessels.

Cash used in financing activities for the six month period ended June 30, 2016 as compared to the six month period ended June 30, 2015:

Net cash used in financing activities for the six month period ended June 30, 2016 was $18.5 million, compared to $58.1 million net cash provided by financing activities for the six month period ended June 30, 2015. Net cash used in financing activities for the six month period ended June 30, 2016 primarily resulted from: (a) $1.0 million of loan repayments; and (b) $17.5 million of dividends paid. Net cash provided by financing activities for the six month period ended June 30, 2015 primarily resulted from: (a) $198.1 million proceeds from long term debt, net of deferred finance costs and discount; and (b) $0.6 million proceeds from issuance of general partner units, partially mitigated by: (i) a $126.0 million loan repayment; (ii) $2.9 million of IPO expenses; and (iii) $11.6 million of dividends paid.

Reconciliation of EBITDA to Net Cash from Operating Activities, EBITDA, Operating Surplus and Available Cash for Distribution

 

     Three Month
Period ended
June 30, 2016
($ ‘000)
(unaudited)
     Three Month
Period ended
June 30, 2015
($ ‘000)
(unaudited)
     Six Month
Period ended
June 30, 2016
($ ‘000)
(unaudited)
     Six Month
Period ended
June 30, 2015
($ ‘000)
(unaudited)
 

Net cash provided by operating activities

   $ 9,464       $ 8,011       $ 19,394       $ 17,717   

Net increase in operating assets

     6,586         1,935         6,930         2,935   

Net (increase)/ decrease in operating liabilities

     (2,481      2,654         2,128         3,549   

Net interest cost

     3,215         3,228         6,371         4,363   

Amortization of deferred finance cost and bond premium

     (350      (1,841      (701      (1,964

EBITDA

   $ 16,434       $ 13,987       $ 34,122       $ 26,600   

Cash interest paid

   $ (2,923    $ (1,334    $ (5,760    $ (2,375

Cash interest income

     69         —          69         —    

Maintenance and replacement capital expenditures

   $ (3,580    $ (2,354    $ (7,160    $ (4,502

Operating Surplus

   $ 10,000       $ 10,299       $ 21,271       $ 19,723   

Cash distribution paid relating to the first six months

     —          —          (8,742      (7,865

Cash reserves

   $ (1,258    $ (1,763    $ (3,787    $ (3,322

Available cash for distribution

   $ 8,742       $ 8,536       $ 8,742       $ 8,536   

Net cash provided by operating activities

   $ 9,464       $ 8,011       $ 19,394       $ 17,717   

Net cash used in investing activities

   $ —        $ (72,252    $ (500    $ (72,252

Net cash (used in)/ provided by financing activities

   $ (9,254    $ 65,935       $ (18,509    $ 58,083   

 

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EBITDA

EBITDA represents net income before interest and finance costs, before depreciation and amortization and income taxes. We use EBITDA as a liquidity measure and reconcile EBITDA to net cash provided by/(used in) operating activities, the most comparable U.S. GAAP liquidity measure. EBITDA in this document is calculated as follows: net cash provided by/(used in) operating activities adding back, when applicable and as the case may be, the effect of (i) net increase/(decrease) in operating assets, (ii) net (increase)/decrease in operating liabilities, (iii) net interest cost, (iv) amortization of deferred finance charges and other related expenses, (v) provision for losses on accounts receivable, (vi) equity in affiliates, net of dividends received, (vii) payments for drydock and special survey costs, (viii) gain/(loss) on sale of assets/subsidiaries, and (ix) impairment charges. Navios Midstream believes that EBITDA is the basis upon which liquidity can be assessed and presents useful information to investors regarding Navios Midstream’s ability to service and/or incur indebtedness, pay capital expenditures, meet working capital requirements and make cash distributions. Navios Midstream also believes that EBITDA is used (i) by potential lenders to evaluate potential transactions; (ii) to evaluate and price potential acquisition candidates; and (iii) by securities analysts, investors and other interested parties in the evaluation of companies in our industry.

EBITDA has limitations as an analytical tool, and should not be considered in isolation or as a substitute for the analysis of Navios Midstream’s results as reported under U.S. 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. 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 Midstream’s performance. Furthermore, our calculation of EBITDA may not be comparable to that reported by other companies due to differences in methods of calculation.

EBITDA represents net income plus interest and finance costs plus depreciation and amortization including accelerated amortization of time charters and income taxes.

EBITDA is presented because Navios Midstream believes that EBITDA is a basis upon which liquidity can be assessed and presents useful information to investors regarding Navios Midstream’s ability to service and/or incur indebtedness, pay capital expenditures, meet working capital requirements and pay dividends. EBITDA is a “non-GAAP financial measure” and should not be considered a substitute for net income, cash flow from operating activities and other operations or cash flow statement data prepared in accordance with accounting principles generally accepted in the United States or as a measure of profitability or liquidity.

While EBITDA is frequently used as a measure of operating results and the ability to meet debt service requirements, the definition of EBITDA used here may not be comparable to that used by other companies due to differences in methods of calculation.

 

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EBITDA increased by approximately $2.4 million to $16.4 million for the three month period ended June 30, 2016, as compared to $14.0 million for the same period in 2015. The increase in EBITDA was mainly due to a $4.3 million increase in revenue. The above increase was partially mitigated by a: (a) $1.5 million increase in management fees; (b) $0.2 million increase in general and administrative expenses; and (c) $0.1 million increase in time charter expenses.

EBITDA increased by approximately $7.5 million to $34.1 million for the six month period ended June 30, 2016, as compared to $26.6 million for the same period in 2015. The increase in EBITDA was mainly due to an $11.8 million increase in revenue. The above increase was partially mitigated by a: (a) $3.2 million increase in management fees; (b) $0.5 million increase in general and administrative expenses; (c) approximately $0.4 million increase in time charter expenses; and (d) $0.1 million increase in other (expense)/ income, net.

Operating Surplus

Operating Surplus represents net income adjusted for depreciation and amortization expense, non-cash interest expense and estimated 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 Midstream’s capital assets.

Operating Surplus is a quantitative measure used in the publicly-traded partnership investment community to assist in evaluating a partnership’s ability to make quarterly cash distributions. Operating Surplus is not required by accounting principles generally accepted in the United States and should not be considered a substitute for net income, cash flow from operating activities and other operations or cash flow statement data prepared in accordance with accounting principles generally accepted in the United States or as a measure of profitability or liquidity.

Available Cash

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 Navios Midstream’s business (including reserve for maintenance and replacement capital expenditures);

 

    comply with applicable law, any of Navios Midstream’s 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 generally borrowings that are made under any revolving credit or similar agreement used solely for working capital purposes or to pay distributions to partners.

Available Cash is a quantitative measure used in the publicly traded partnership investment community to assist in evaluating a partnership’s ability to make quarterly cash distributions. Available Cash is not required by accounting principles generally accepted in the United States and should not be considered a substitute for net income, cash flow from operating activities and other operations or cash flow statement data prepared in accordance with accounting principles generally accepted in the United States or as a measure of profitability or liquidity.

Borrowings

Navios Midstream’s long-term third party borrowings are reflected in its balance sheet as “Long-term debt, net of deferred finance costs and discount.” As of June 30, 2016, the loan balance outstanding amounted to $203.0 million under the Term Loan B, discussed above. As of December 31, 2015, the loan balance outstanding amounted to $204.0 million under the Term Loan B. The current portion of long-term debt amounted to $2.1 million for each of the six month period ended June 30, 2016 and the year ended December 31, 2015.

 

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Capital Expenditures

Maintenance for our vessels and expenses related to drydocking are paid to our Manager at cost under the Management Agreement.

Maintenance and replacement capital expenditures

Our partnership agreement requires our Board of Directors to deduct from operating surplus each quarter estimated maintenance and replacement capital expenditures, as opposed to actual maintenance and replacement capital expenditures, in order to reduce disparities in operating surplus caused by fluctuating maintenance and replacement capital expenditures, such as drydocking and vessel replacement. The actual cost of replacing the vessels in our fleet will depend on a number of factors, including prevailing market conditions, hire rates and the availability and cost of financing at the time of replacement. 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 the amount of estimated maintenance and replacement capital expenditures. We may elect to finance some or all of our maintenance and replacement capital expenditures through the issuance of additional common units, which could be dilutive to our existing unitholders. We must make substantial capital expenditures to maintain the operating capacity of our fleet, which will reduce cash available for distribution. In addition, each quarter we are 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.

Maintenance Capital Expenditures . Our initial annual estimated drydocking capital expenditure reserve is expected to be $2.3 million. The estimation is based on assumptions and estimates regarding the remaining useful lives of the vessels, a relative net investment rate, drydocking and special survey costs based on current industry data.

Replacement Capital Expenditures . Because of the substantial capital expenditures we are required to make to maintain our fleet over time, our initial annual estimated replacement capital expenditures for estimating maintenance and replacement capital expenditures is expected to be $12.0 million per year, for replacing vessels at the end of their useful lives. The future vessel replacement is based on assumptions and estimates regarding the remaining useful lives of the vessels, a relative net investment rate, vessel replacement values based on current market conditions and residual value of the vessels at the end of their useful lives based on current steel prices.

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 June 30, 2016:

 

     Payments due by period
(Unaudited)
 
     Less than
1 year
     1-3 years      3-5 years      More than
5 years
     Total  
     (In thousands of U.S. dollars)  

Loan obligations (1), (2)

   $ 2,050       $ 6,150       $ 194,750       $ —        $ 202,950   

Total contractual obligations

   $ 2,050       $ 6,150       $ 194,750       $ —        $ 202,950   

 

(1) The amount identified does not include interest costs associated with the outstanding Term Loan B, which are based on LIBOR, plus the costs of complying with any applicable regulatory requirements and a margin of 4.50% per annum.
(2) The amount identified excludes the discount associated with the outstanding Term Loan B.

 

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Fleet Employment Profile

Set forth below are selected historical and statistical data of our fleet for each of the three and six month periods ended June 30, 2016 and June 30, 2015 that we believe may be useful in better understanding our fleet’s financial position and results of operations.

 

     Three Month
Period ended
June 30, 2016
(unaudited)
    Three Month
Period ended
June 30, 2015
(unaudited)
    Six Month
Period ended
June 30, 2016
(unaudited)
    Six Month
Period ended
June 30, 2015
(unaudited)
 

FLEET DATA

        

Available days (1)

     488        390        1,034        750   

Operating days (2)

     485        390        1,030        750   

Fleet utilization (3)

     99.4     100.0     99.6     100.0

Vessels operating at period end

     6        6        6        6   

AVERAGE DAILY RESULTS

        

Time Charter Equivalent per day (4)

   $ 45,783        46,545      $ 44,565        46,234   

 

(1 ) Available days: total calendar days the vessels were in Navios Midstream’s possession for the relevant period after subtracting off-hire days associated with major repairs, drydocking or special surveys. The shipping industry uses available days to measure the number of days in a relevant period during which vessels should be capable of generating revenues.
(2) Operating days: the number of available days in the relevant period less the aggregate number of days that the vessels are off-hire due to any reason, including unforeseen circumstances. The shipping industry uses operating days to measure the aggregate number of days in a relevant period during which vessels actually generate revenues.
(3) Fleet utilization: the percentage of time that the Navios Midstream’s vessels were available for generating revenue, determined by dividing the number of operating days during a relevant period by the number of available days during that period. The shipping industry uses fleet utilization to measure a company’s efficiency in finding suitable employment for its vessels.
(4) Time Charter Equivalent: (“TCE”): time charter revenues less time charter expenses during a relevant period divided by the number of available days during the period.

Cash Distribution Policy

Rationale for Our Cash Distribution Policy

Our cash distribution policy reflects a basic judgment that our unitholders will be 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 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.

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.

 

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Minimum Quarterly Distribution

The amount of the minimum quarterly distribution is $0.4125 per unit, or $1.65 per unit per year. The amount of available cash from operating surplus, which we also refer to as cash available for distributions, needed to pay the minimum quarterly distribution on all of the common units and subordinated units and the 2.0% general partner interest to be outstanding as of June 30, 2016 for one quarter and for four quarters will be approximately:

 

     Number
of
Units
     Distributions  
        One
Quarter
     Four
Quarters
 

Common units

     9,342,692       $ 3,853,860       $ 15,415,442   

Subordinated Series A units

     1,592,920         657,080         2,628,318   

Subordinated units

     9,342,692         3,853,860         15,415,442   

General Partner interest (1)

     413,843         170,710         682,841   

Total

     20,692,147       $ 8,535,511       $ 34,142,043   

 

(1) The number of general partner units is determined by multiplying the total number of units deemed to be outstanding (i.e., the total number of common and subordinated units outstanding divided by 98.0%) by the general partner’s 2.0% general partner interest.

During the subordination period, before we make any quarterly distributions to subordinated unitholders, our common unitholders are entitled to receive payment of the full minimum quarterly distribution plus any arrearages in distributions from prior quarters. The amount of the minimum quarterly distribution is $0.4125 per unit, or $1.65 per unit per year. We cannot guarantee, however, that we will pay the minimum quarterly distribution or any amount on the common units in any quarter.

In general, our general partner is entitled to 2.0% of all distributions that we make prior to our liquidation. The general partner’s initial 2.0% interest in these distributions, however, may be reduced if we issue additional units in the future and our general partner does not contribute a proportionate amount of capital to us to maintain its initial 2.0% general partner interest. Our general partner has the right, but not the obligation, to contribute a proportionate amount of capital to us to maintain its current general partner interest.

On January 22, 2016, the Board of Directors of Navios Midstream authorized its quarterly cash distribution for the three month period ended December 31, 2015 of $0.4225 per unit. The distribution was paid on February 12, 2016 to all holders of record of common, subordinated, subordinated Series A units and general partner units on February 9, 2016. The aggregate amount of the declared distribution was $8.7 million.

On April 21, 2016, the Board of Directors of Navios Midstream authorized its quarterly cash distribution for the three month period ended March 31, 2016 of $0.4225 per unit. The distribution was paid on May 12, 2016 to all holders of record of common, subordinated, subordinated Series A units and general partner units on May 6, 2016. The aggregate amount of the declared distribution was $8.7 million.

On July 21, 2016, the Board of Directors of Navios Midstream authorized its quarterly cash distribution for the three month period ended June 30, 2016 of $0.4225 per unit. The distribution is payable on August 12, 2016 to all holders of record of common, subordinated, subordinated Series A units and general partner units on August 10, 2016. The aggregate amount of the declared distribution is anticipated to be $8.7 million.

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.

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.

 

     Total Quarterly
Distribution
Total Amount
     Marginal Percentage
Interest
in Distributions
 
        Unitholders     General
Partner
    Holders of
IDRs
 

Minimum Quarterly Distribution

   $ 0.4125         98.0     2.0     0

First Target Distribution

   up to $ 0.4744         98.0     2.0     0

Second Target Distribution

   above $  0.4744          
   up to $ 0.5156         85.0     2.0     13.0

Third Target Distribution

   above $ 0.5156          
   up to $ 0.6188         75.0     2.0     23.0

Thereafter

   above $ 0.6188         50.0     2.0     48.0

 

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Related Party Transactions

Management fees: On November 18, 2014, Navios Midstream entered into a new Management Agreement with the Manager pursuant to which the Manager provides commercial and technical management services to Navios Midstream’s vessels for a daily fee of $9,500 per VLCC tanker vessel for the first two years.

Management fees for the three and six month periods ended June 30, 2016 amounted to $5.2 million and $10.4 million, respectively. Management fees for the three and six month periods ended June 30, 2015 amounted to $3.7 million and $7.1 million, respectively.

General and administrative expenses: On November 18, 2014, Navios Midstream entered into the Administrative Services Agreement with the Manager, expiring on November 18, 2019, pursuant to which the Manager provides certain administrative management services to Navios Midstream 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 services. The Manager is reimbursed for reasonable costs and expenses.

For each of the three and six month periods ended June 30, 2016, the expense arising from the administrative services rendered by the Manager to the Company’s vessels amounted to $0.4 million and $0.8 million, respectively. For each of the three and six month periods ended June 30, 2015, the expense arising from the administrative services rendered by the Manager to the Company’s vessels amounted to $0.2 million and $0.4 million, respectively.

Balances due from/ to related parties:  Balances due from/ to related parties relate to amounts from/ to Navios Acquisition and its subsidiaries, as well as Navios Holdings.

Amounts due from related parties as of June 30, 2016 and as of December 31, 2015, were $7.0 million and $2.8 million, respectively, which mainly related to payments of special survey expenses and management fees.

Amounts due to Navios Acquisition as of June 30, 2016 were $0.4 million which represents the current account payable to Navios Acquisition in relation to voyage expenses of our vessels. Amounts due to Navios Acquisition as of December 31, 2015 were $0.4 million and there was an amount due to Navios Holdings of $0.1 million.

Omnibus Agreement: On November 18, 2014, Navios Midstream entered into an omnibus agreement, with Navios Acquisition, Navios Holdings and Navios Maritime Partners L.P. (“Navios Partners”) in connection with the Navios Midstream IPO, pursuant to which Navios Acquisition, Navios Holdings, Navios Partners and their controlled affiliates generally have agreed not to acquire or own any VLCCs, crude oil tankers, refined petroleum product tankers, LPG tankers or chemical tankers under time charters of five or more years. The omnibus agreement contains significant exceptions that will allow Navios Acquisition, Navios Holdings, Navios Partners or any of their controlled affiliates to compete with Navios Midstream under specified circumstances.

Under the omnibus agreement, Navios Midstream and its subsidiaries granted to Navios Acquisition a right of first offer on any proposed sale, transfer or other disposition of any of its VLCCs or any crude oil tankers, refined petroleum product tankers, LPG tankers or chemical tankers and related charters owned or acquired by Navios Midstream. Likewise, Navios Acquisition granted a similar right of first offer to Navios Midstream for any of the VLCCs, crude oil tanker, refined petroleum product tanker, LPG tanker or chemical tanker under charter for five or more years it might own. These rights of first offer will 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.

 

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Backstop Agreements: On November 18, 2014, Navios Acquisition entered into backstop agreements with Navios Midstream. In accordance with the terms of the backstop agreements, Navios Acquisition has provided a backstop commitment to charter-in the Shinyo Ocean and the Shinyo Kannika for a two-year period as of their scheduled redelivery at the currently contracted rate if the market charter rate is lower than the currently contracted rate. Further, Navios Acquisition has provided a backstop commitment to charter-in the Nave Celeste for a two-year period as of its scheduled redelivery, at the net time charter-out rate per day (net of commissions) of $35,000 if the market charter rate is lower than the charter-out rate of $35,000. Navios Acquisition has also provided a backstop commitment to charter-in the option vessels, the Nave Galactic and the Nave Quasar for a four-year period as of their scheduled redelivery, at the net time charter-out rate per day (net of commissions) of $35,000 if the market charter rate is lower than the charter-out rate of $35,000. Conversely, if market charter rates are higher during the backstop period, such vessels will be chartered out to third-party charterers at prevailing market rates and Navios Acquisition’s backstop commitment will not be triggered. The backstop commitment does not include any profit sharing.

General Partner Option Agreement:  Navios Holdings has a ten-year option to purchase a minimum of 25% of the general partner interest held by the general partner, the incentive distribution rights held by the general partner and/or the membership interests in the general partner from Navios Acquisition, each at fair market value. The option expires on November 18, 2024.

Option Vessels:  On November 18, 2014, Navios Midstream entered into a share purchase agreement with Navios Acquisition, pursuant to which Navios Midstream has options, that are exercisable through November 18, 2016, to acquire the capital stock of up to seven vessel-owning subsidiaries of Navios Acquisition that own seven VLCC vessels and the related time charters. In June 2015, Navios Midstream exercised its option and acquired two of the seven vessels, the Nave Celeste and the C. Dream, and holds options to acquire the capital stock for five additional vessel-owning subsidiaries of Navios Acquisition.

Quantitative and Qualitative Disclosures about Market Risks

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.

Interest Rate Risk

Borrowings under our credit facility bear interest at rates based on a premium over U.S. $ LIBOR except for the interest rate on the Notes which is fixed. Therefore, we are exposed to the risk that our interest expense may increase if interest rates rise. For the six month period ended June 30, 2016, we paid interest on our outstanding debt at a weighted average interest rate of 5.50%. A 1% increase in LIBOR would have increased our interest expense for the six month period ended June 30, 2016 by $1.0 million. For the six month period ended June 30, 2015, we paid interest on our outstanding debt at a weighted average interest rate of 3.51%.

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 six month period ended June 30, 2016, customers representing 10% or more of total revenue were Dalian Ocean Shipping Co. Ltd., SK Shipping Company Limited and Formosa and Petrochemical Corporation, which accounted for 70.0%, 15.2% and 14.8%, respectively, of our revenue.

For the six month period ended June 30, 2015, customers representing 10% or more of total revenue were Dalian Ocean Shipping Co. Ltd. and Formosa Petrochemical Corporation, which accounted for 77.5% and 21.4%, respectively, of our revenue.

 

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Inflation

Inflation has had a minimal impact on vessel operating 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.

Critical Accounting Policies

Our interim condensed consolidated financial statements have been prepared in accordance with U.S. 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 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 in the annual report on Form 20-F for the year ended December 31, 2015.

Exhibit List

 

Exhibit

Number

    
1.1    Continuous offering Program Sales Agreement, dated July 29, 2016
5.1    Opinion of Reeder & Simpson P.C. dated July 29, 2016
23.1    Consent of Reeder & Simpson P.C. (included in Exhibit 5.1 above)
101    The following materials from Navios Maritime Midstream Partners L.P.’s 6-K containing its financial statements for the three and six months ended June 30, 2016, formatted in eXtensible Business Reporting Language (XBRL): (i) Condensed Consolidated Balance Sheets at June 30, 2016 (unaudited) and December 31, 2015; (ii) Unaudited Condensed Consolidated Statements of Income for each of the three and six month periods ended June 30, 2016 and 2015; (iii) Unaudited Condensed Consolidated Statements of Cash Flows for the six month periods ended June 30, 2016 and 2015; (iv) Unaudited Condensed Consolidated Statements of Changes in Partners’ Capital for the six month periods ended June 30, 2016 and 2015; and (v) the Condensed Notes to the Consolidated Financial Statements (unaudited).

 

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N AVIOS MARITIME MIDSTREAM PARTNERS L.P.

 

CONDENSED CONSOLIDATED BALANCE SHEETS AT JUNE 30, 2016 (UNAUDITED) AND DECEMBER   31, 2015

   F-2

UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF INCOME FOR THE THREE AND SIX MONTH PERIODS ENDED JUNE 30, 2016 AND 2015

   F-3

UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS FOR THE SIX MONTH PERIODS ENDED JUNE 30, 2016 AND 2015

   F-4

UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF CHANGES IN PARTNERS’ CAPITAL FOR THE SIX MONTH PERIODS ENDED JUNE 30, 2016 AND 2015

   F-5

CONDENSED NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)

   F-6

 

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NAVIOS MARITIME MIDSTREAM PARTNERS L.P.

CONDENSED CONSOLIDATED BALANCE SHEETS

(Expressed in thousands of U.S. dollars except unit amounts)

 

     Notes      June 30,
2016
     December 31,
2015
 

ASSETS

        

Current assets

        

Cash and cash equivalents

     3       $ 38,219       $ 37,834   

Accounts receivable, net

        6,904         5,110   

Prepaid expenses and other current assets

        117         112   

Due from related parties

     8         7,042         2,804   

Total current assets

        52,282         45,860   

Vessels, net

     4         389,556         400,192   

Intangible assets

     5         26,807         28,450   

Deferred dry dock and special survey costs, net

        9,609         6,066   

Total non-current assets

        425,972         434,708   

Total assets

      $ 478,254       $ 480,568   

LIABILITIES AND PARTNERS’ CAPITAL

        

Current liabilities

        

Accounts payable

      $ 2,089       $ 412   

Accrued expenses

        559         654   

Due to related parties

     8         403         438   

Deferred revenue

        2,494         1,931   

Current portion of long-term debt, net of deferred finance costs and discount

     6         654         643   

Total current liabilities

        6,199         4,078   

Long-term debt, net of deferred finance costs and discount

     6         196,841         197,176   

Total non-current liabilities

        196,841         197,176   

Total liabilities

      $ 203,040       $ 201,254   

Commitments and contingencies

     9         —          —    

Total Partners’ capital

        

Common Unitholders (9,342,692 units issued and outstanding at June 30, 2016 and December 31, 2015)

        124,466         126,317   

Subordinated Series A Unitholders (1,592,920 units issued and outstanding at June 30, 2016 and December 31, 2015)

        27,063         27,379   

Subordinated Unitholders (9,342,692 units issued and outstanding at June 30, 2016 and December 31, 2015)

        118,303         120,154   

General Partner (413,843 units issued and outstanding at June 30, 2016 and at December 31, 2015)

        5,382         5,464   

Partners’ capital

        275,214         279,314   

Total liabilities and Partners’ capital

      $ 478,254       $ 480,568   

See unaudited condensed notes to the condensed consolidated financial statements.

 

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NAVIOS MARITIME MIDSTREAM PARTNERS L.P.

CONDENSED CONSOLIDATED STATEMENTS OF INCOME

(Expressed in thousands of U.S. Dollars, except unit and per unit data)

 

     Notes      Three Month
Period ended
June 30, 2016
(unaudited)
    Three Month
Period ended
June 30, 2015
(unaudited)
    Six Month
Period ended
June 30, 2016
(unaudited)
    Six Month
Period ended
June 30, 2015
(unaudited)
 

Revenue

      $ 22,695      $ 18,350      $ 46,844      $ 35,053   

Time charter expenses

        (338     (197     (749     (377

Direct vessel expenses

        (952     (289     (1,588     (578

Management fees (entirely through related party transactions)

     8         (5,187     (3,705     (10,374     (7,125

General and administrative expenses

     8         (724     (482     (1,550     (1,017

Depreciation and amortization

     4, 5         (6,378     (5,076     (12,779     (9,953

Interest income

        69        —         69        —    

Interest expenses and finance cost

     6         (3,284     (3,228     (6,440     (4,363

Other (expense)/ income, net

        (12     21        (49     66   

Net income

      $ 5,889      $ 5,394      $ 13,384      $ 11,706   

Earnings per unit (basic and diluted)

           

Common unitholders:

      $ 0.28        0.26      $ 0.65        0.59   

Subordinated Series A unitholders:

      $ 0.28        1.82      $ 0.65        3.63   

Subordinated unitholders:

      $ 0.28        0.26      $ 0.65        0.59   

See unaudited condensed notes to the condensed consolidated financial statements.

 

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NAVIOS MARITIME MIDSTREAM PARTNERS L.P.

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(Expressed in thousands of U.S. Dollars)

 

     Notes      Six Month
Period Ended
June 30,
2016
(unaudited)
    Six Month
Period Ended
June 30,
2015
(unaudited)
 

Operating Activities

       

Net income

      $ 13,384      $ 11,706   

Adjustments to reconcile net income to net cash provided by operating activities:

       

Depreciation and amortization

     4, 5         12,779        9,953   

Amortization of deferred finance fees and bond premium

        701        1,964   

Amortization of dry dock and special survey costs

        1,588        578   

Changes in operating assets and liabilities:

       

(Increase)/ decrease in prepaid expenses and other current assets

        (5     129   

Payment for Drydocking

        (5,131     (99

Increase in accounts receivable

        (1,794     (2,965

Increase in accounts payable

        1,677        220   

Decrease in accrued expenses

        (95     (135

Decrease in due to/ from related parties

     8         (4,273     (4,190

Increase in deferred revenue

        563        556   

Net cash provided by operating activities

      $ 19,394      $ 17,717   

Investing Activities

       

Acquisition of vessels

        (500     (72,252

Net cash used in investing activities

      $ (500   $ (72,252

Financing Activities

       

Proceeds from Long term debt, net of deferred finance costs and discount

        —          198,081   

Loan repayment

        (1,025     (126,000

IPO expenses

        —          (2,922

Dividend paid

        (17,484     (11,627

Proceeds from issuance of general partner units

        —          551   

Net cash (used in)/ provided by financing activities

      $ (18,509   $ 58,083   

Net increase in cash and cash equivalents

        385        3,548   

Cash and cash equivalents, beginning of year

      $ 37,834      $ 30,877   

Cash and cash equivalents, end of year

      $ 38,219      $ 34,425   

Supplemental disclosures of cash flow information

       

Cash interest paid

      $ 5,760      $ 2,375   

Non-cash financing activities

       

Accrued IPO expenses

      $ —        $ 430   

See unaudited condensed notes to the condensed consolidated financial statements.

 

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NAVIOS MARITIME MIDSTREAM PARTNERS L.P.

CONDENSED CONSOLIDATED STATEMENTS OF CHANGES IN PARTNERS’ CAPITAL

(Expressed in thousands of U.S. Dollars except unit data)

 

                  Limited Partners                     
     General Partner     Common
Unitholders
    Subordinated
Unitholders
    Subordinated
Series A
Unitholders
    Total
Partners’
Capital
 
     Units      $     Units      $     Units      $     Units      $     $  

Consolidated Balance December 31, 2014

     381,334       $ 4,947        9,342,692       $ 127,350        9,342,692       $ 121,187                 $         $ 253,484   

Net Income

     —         $ 235        —         $ 5,528        —         $ 5,528        —         $ 415      $ 11,706   

Issuance of subordinated Series A Units and general partner units

     32,509       $ 551        —         $ —          —         $ —          1,593       $ 27,111      $ 27,662   

Cash distribution

     —         $ (233     —         $ (5,697     —         $ (5,697     —         $ —        $ (11,627

Consolidated Balance June 30, 2015

     413,843      $ 5,500       9,342,692       $ 127,181        9,342,692       $ 121,018        1,593      $ 27,526     $ 281,225  

Consolidated Balance December 31, 2015

     413,843       $ 5,464        9,342,692       $ 126,317        9,342,692       $ 120,154        1,593      $ 27,379      $ 279,314   

Net Income

     —         $ 268        —         $ 6,043        —         $ 6,043        —         $ 1,030      $ 13,384   

Cash distribution

     —         $ (350     —         $ (7,894     —         $ (7,894     —         $ (1,346   $ (17,484

Consolidated Balance June 30, 2016

     413,843       $ 5,382        9,342,692       $ 124,466        9,342,692       $ 118,303        1,593       $ 27,063      $ 275,214   

See unaudited condensed notes to the condensed consolidated financial statements.

 

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NAVIOS MARITIME MIDSTREAM PARTNERS L.P.

UNAUDITED CONDENSED NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(Expressed in thousands of U.S. Dollars except unit and per unit data)

NOTE 1: DESCRIPTION OF BUSINESS

Navios Maritime Midstream Partners L.P. (“Navios Midstream”, the “Company” or the “Partnership”) (NYSE: NAP), was formed in The Republic of the Marshall Islands on October 13, 2014. Navios Maritime Midstream Partners GP LLC (the “General Partner”), a Marshall Islands limited liability company and wholly-owned subsidiary of Navios Maritime Acquisition Corporation (“Navios Acquisition”), was also formed on that date to act as the General Partner of Navios Midstream and receive a 2.0% general partner interest.

In connection with the initial public offering (“IPO”) of Navios Midstream in November 2014, Navios Midstream acquired all of the outstanding shares of capital stock of four of Navios Acquisition’s vessel-owning subsidiaries (Shinyo Ocean Limited, Shinyo Kannika Limited, Shinyo Kieran Limited and Shinyo Saowalak Limited) in exchange for: (i) all of the estimated net proceeds from the IPO amounting to $110,403; (ii) $104,451 of the $126,000 borrowings under Navios Midstream’s new credit facility; (iii) 9,342,692 subordinated units and 1,242,692 common units; and (iv) 381,334 general partner units, representing a 2.0% general partner interest in Navios Midstream, and all of the incentive distribution rights in Navios Midstream, to our General Partner.

Following the completion of the IPO, Navios Acquisition owns a 2.0% general partner interest in Navios Midstream through the General Partner and a 55.5% limited partnership interest through the ownership of subordinated units (49%) and through common units (6.5%) based on all outstanding common, subordinated and general partner units.

On or prior to the closing of the IPO, Navios Midstream entered into the following agreements: a) a share purchase agreement with Navios Acquisition pursuant to which Navios Midstream will have options, exercisable at any time during a two-year period, to acquire the capital stock of up to seven of its subsidiaries that own seven VLCCs and the related time charters; b) a management agreement (the “Management Agreement”) with Navios Tankers Management Inc. (the “Manager”), a subsidiary of Navios Maritime Holdings Inc. (“Navios Holdings”), pursuant to which the Manager provides Navios Midstream commercial and technical management services; c) an administrative services agreement (the “Administrative Services Agreement”) with the Manager pursuant to which the Manager provides Navios Midstream administrative services; and d) an omnibus agreement with Navios Holdings, Navios Acquisition, Navios Maritime Partners L.P. (“Navios Partners”) and the General Partner governing, among other things, when Navios Midstream, Navios Holdings, Navios Acquisition and Navios Partners may compete against each other as well as rights of first offer on VLCCs, crude oil tankers, refined petroleum product tankers, chemical tankers and LPG tankers.

Navios Midstream’s principal activity is to own, operate and acquire crude oil tankers under long-term employment contracts as well as refined petroleum product tankers, chemical tankers, and liquefied petroleum gas, or LPG, tankers under long-term employment contracts. The Company intends to charter the vessels under long-term employment contracts to international oil companies, refiners, and large vessel operators.

As of June 30, 2016, the Company owned six VLCC tanker vessels.

NOTE 2: SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:

(a) Basis of presentation: The accompanying interim condensed consolidated financial statements are unaudited, but, in the opinion of management, reflect all adjustments for a fair statement of Navios Midstream’s condensed consolidated financial position, statements of income and cash flows for the periods presented. Adjustments consist of normal, recurring entries. The yearend condensed balance sheet data was derived from audited financial statements, but does not include all disclosure required by accounting principles generally accepted in the United States of America (“GAAP”). The results of operations for the interim periods are not necessarily indicative of results for the full year. The footnotes are condensed as permitted by the requirements for interim financial statements and accordingly, do not include information and disclosures required under GAAP for complete financial statements. These interim financial statements should be read in conjunction with the Company’s consolidated financial statements and notes included in Navios Midstream’s 2015 Annual Report filed on Form 20-F with the Securities and Exchange Commission (“SEC”).

(b) Principles of consolidation: The accompanying interim condensed consolidated financial statements include the accounts of Navios Midstream, a Marshall Islands corporation, and its subsidiaries that are all 100% owned. All significant intercompany balances and transactions have been eliminated in the condensed consolidated statements.

 

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NAVIOS MARITIME MIDSTREAM PARTNERS L.P.

UNAUDITED CONDENSED NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(Expressed in thousands of U.S. Dollars except unit and per unit data)

 

As of June 30, 2016, the entities included in these condensed consolidated financial statements were:

 

Company name

   Vessel name   Country of
incorporation
   2016     2015  

Navios Maritime Midstream Operating LLC

   N/A   Marshall Islands      1/1-6/30        1/1-6/30   

Navios Maritime Midstream Partners L.P.

   N/A   Marshall Islands      1/1-6/30        1/1-6/30   

Navios Maritime Midstream Partners Finance (US) Inc.

   N/A   Delaware      1/1-6/30        6/4-6/30   

Shinyo Kannika Limited

   Shinyo Kannika   Hong Kong      1/1-6/30        1/1-6/30   

Shinyo Ocean Limited

   Shinyo Ocean   Hong Kong      1/1-6/30        1/1-6/30   

Shinyo Saowalak Limited

   Shinyo Saowalak   British Virgin Is.      1/1-6/30        1/1-6/30   

Shinyo Kieran Limited

   Shinyo Kieran   British Virgin Is.      1/1-6/30        1/1-6/30   

Shinyo Dream Limited

   C. Dream   Hong Kong      1/1-6/30        6/18-6/30   

Sikinos Shipping Corporation

   Nave Celeste   Marshall Islands      1/1-6/30        6/18-6/30   

NOTE 3: CASH AND CASH EQUIVALENTS

Cash and cash equivalents consisted of the following:

 

     June 30, 2016      December 31, 2015  

Cash at banks

   $ 9,180       $ 37,719   

Short-term deposits

     29,039         115   

Total cash and cash equivalents

   $ 38,219       $ 37,834   

The bank accounts are legally owned by the entities referenced in Note 1.

Cash deposits and cash equivalents in excess of amounts covered by government-provided insurance are exposed to loss in the event of non-performance by financial institutions. The Company does maintain cash deposits and equivalents in excess of government-provided insurance limits. The Company also minimizes exposure to credit risk by dealing with a diversified group of major financial institutions.

NOTE 4: VESSELS, NET

 

     Cost      Accumulated
Depreciation
     Net Book
Value
 

Balance at December 31, 2014

   $ 387,777       $ (67,548    $ 320,229   

Additions

     99,363         (19,400      79,963   

Balance at December 31, 2015

   $ 487,140       $ (86,948    $ 400,192   

Additions

     500         (11,136      (10,636

Balance at June 30, 2016

   $ 487,640       $ (98,084    $ 389,556   

NOTE 5: INTANGIBLE ASSETS

Intangible assets as of June 30, 2016 and December 31, 2015 consisted of the following:

 

Favorable lease terms

   Cost      Accumulated
Amortization
     Net Book
Value
 

Balance at December 31, 2014

   $ 44,877       $ (13,141    $ 31,736   

Additions

     —          (3,286      (3,286

Balance at December 31, 2015

   $ 44,877       $ (16,427    $ 28,450   

Additions

     —          (1,643      (1,643

Balance at June 30, 2016

   $ 44,877       $ (18,070    $ 26,807   

 

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NAVIOS MARITIME MIDSTREAM PARTNERS L.P.

UNAUDITED CONDENSED NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(Expressed in thousands of U.S. Dollars except unit and per unit data)

 

Amortization expense of favorable lease terms for the three and six month periods ended June 30, 2016 and 2015 is presented in the following table:

 

     Three Month Period Ended      Six Month Period Ended  
     June 30,
2016
     June 30,
2015
     June 30,
2016
     June 30,
2015
 

Favorable lease terms charter-out

   $ (822    $ (822    $ (1,643    $ (1,643

Total

   $ (822    $ (822    $ (1,643    $ (1,643

The aggregate amortizations of intangible assets will be as follows:

 

Description

   Within
One
Year
    Year
Two
    Year
Three
    Year
Four
    Year
Five
    Thereafter     Total  

Favorable lease terms

   $ (3,083   $ (2,811   $ (2,811   $ (2,811   $ (2,811   $ (12,480   $ (26,807

Total

   $ (3,083   $ (2,811   $ (2,811   $ (2,811   $ (2,811   $ (12,480   $ (26,807

Intangible assets subject to amortization are amortized using the straight-line method over their estimated useful lives to their estimated residual value of zero. Intangible assets are amortized over the contract periods, which ranged from 6.34 to 15.00 years at inception.

NOTE 6: LONG-TERM DEBT

Long-term debt consisted of the following:

 

     June 30,
2016
     December 31,
2015
 

Term Loan B

     202,950         203,975   

Less deferred finance costs, net

     (3,839      (4,332

Total long term debt

     199,111         199,643   

Less unamortized discount

     (1,616      (1,824

Less current portion, net of deferred finance cost

     (654      (643

Total Long Term Debt, net of current portion and net of deferred finance costs

   $ 196,841       $ 197,176   

Term Loan B:  On June 18, 2015, Navios Midstream and Navios Maritime Midstream Partners Finance (US) Inc. (“Navios Finance”), as co-borrowers, completed the issuance of the $205,000 Term Loan B (the “Term Loan B”). The Term Loan B is set to mature on June 18, 2020 and is repayable in equal quarterly installments of 0.25% of the initial principal amount of the Term Loan B, beginning on September 18, 2015, with a final payment of the aggregate principal amount of the Term Loan B, plus accrued and unpaid interest, due on the maturity. The Term Loan B bears interest at LIBOR plus 4.50% per annum.

The Term Loan B requires maintenance of a loan to value ratio of no greater than 0.85 to 1.0 and a minimum interest coverage ratio of at least 3.75 to 1.0, and other restrictive covenants including restrictions on indebtedness, liens, acquisitions and investments, restricted payments and dispositions. The Term Loan B also provides for excess cash flow prepayments and customary events of default.

Amounts drawn under the facilities are secured by first preferred mortgages on Navios Midstream’s vessels and other collateral and are guaranteed by each vessel-owning subsidiary.

 

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NAVIOS MARITIME MIDSTREAM PARTNERS L.P.

UNAUDITED CONDENSED NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(Expressed in thousands of U.S. Dollars except unit and per unit data)

 

As of June 30, 2016, Navios Midstream was in compliance with the covenants set forth in the Term Loan B.

As of June 30, 2016, a balance of $202,950 was outstanding under the Term Loan B.

The maturity table below reflects the principal payments of credit facilities outstanding as of June 30, 2016 for the next five years and thereafter are based on the repayment schedule of the respective loan facilities (as described above).

The weighted average interest rate as of June 30, 2016 and 2015 was 5.50% and 3.51%, respectively.

 

     June 30,
2016
 

Long-Term Debt Obligations:

  

Year

  

June 30, 2017

   $ 2,050   

June 30, 2018

     2,050   

June 30, 2019

     2,050   

June 30, 2020

     196,800   

Total

   $ 202,950   

NOTE 7: FAIR VALUE OF FINANCIAL INSTRUMENTS

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.

Term Loan B facility:  The fair value of the Company’s debt is estimated based on currently available debt with similar contract terms, interest rate and remaining maturities, as well as taking into account our creditworthiness.

The fair value hierarchy is explained as follows:

Level I: Inputs are unadjusted, quoted prices for identical assets or liabilities in active markets that we have the ability to access. Valuation of these items does not entail a significant amount of judgment.

Level II: Inputs other than quoted prices included in Level I that are observable for the asset or liability through corroboration with market data at the measurement date.

Level III: Inputs that are unobservable. The Company did not use any Level 3 inputs as of June 30, 2016 or December 31, 2015.

 

     June 30, 2016      December 31, 2015  
     Book Value      Fair Value      Book Value      Fair Value  

Cash and cash equivalents

   $ 38,219       $ 38,219       $ 37,834       $ 37,834   

Term Loan B

   $ 199,111       $ 183,670       $ 199,643       $ 200,405   

Fair Value Measurements

The estimated fair value of our financial instruments that are not measured at fair value on a recurring basis, categorized based upon the fair value hierarchy, are as follows:

Level I: Inputs are unadjusted, quoted prices for identical assets or liabilities in active markets that we have the ability to access. Valuation of these items does not entail a significant amount of judgment.

 

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NAVIOS MARITIME MIDSTREAM PARTNERS L.P.

UNAUDITED CONDENSED NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(Expressed in thousands of U.S. Dollars except unit and per unit data)

 

Level II: Inputs other than quoted prices included in Level I that are observable for the asset or liability through corroboration with market data at the measurement date.

Level III: Inputs that are unobservable. The Company did not use any Level 3 inputs as of June 30, 2016 or December 31, 2015.

 

Fair Value Measurements at June 30, 2016 Using

 
     Total      Level I      Level II      Level III  

Cash and cash equivalents

   $ 38,219       $ 38,219       $ —        $ —    

Term Loan B

   $ 183,670       $ —        $ 183,670       $ —    

Fair Value Measurements at December 31, 2015 Using

 
     Total      Level I      Level II      Level III  

Cash and cash equivalents

   $ 37,834       $ 37,834       $ —        $ —    

Term Loan B

   $ 200,405       $ —        $ 200,405       $ —    

NOTE 8: TRANSACTIONS WITH RELATED PARTIES

Management fees: On November 18, 2014, the Company entered into a Management Agreement with the Manager pursuant to which the Manager provides commercial and technical management services to Navios Midstream’s vessels for a daily fee of $9.5 per VLCC tanker vessel that has been fixed for the first two years. Total management fees for each of the three and six month periods ended June 30, 2016 amounted to $5,187 and $10,374, respectively. Total management fees for each of the three and six month periods ended June 30, 2015 amounted to $3,705 and $7,125, respectively.

General and administrative expenses: On November 18, 2014, Navios Midstream entered into the Administrative Services Agreement with the Manager, expiring on November 18, 2019, pursuant to which the Manager provides certain administrative management services to Navios Midstream 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 services. The Manager is reimbursed for reasonable costs and expenses.

For each of the three and six month periods ended June 30, 2016, the expense arising from the administrative services rendered by the Manager to the Company’s vessels amounted to $375 and $750, respectively. For each of the three and six month periods ended June 30, 2015, the expense arising from the administrative services rendered by the Manager to the Company’s vessels amounted to $214 and $414, respectively.

Balances due from/ to related parties:  Balances due from/ to related parties relate to amounts from/ to Navios Acquisition and its subsidiaries, as well as, Navios Holdings.

Amounts due from related parties as of June 30, 2016 and as of December 31, 2015, were $7,042 and $2,804, respectively, which mainly related to payments of special survey expenses and management fees.

Amounts due to Navios Acquisition as of June 30, 2016 were $403 ($346 as of December 31, 2015) which represents the current accounts payable to Navios Acquisition in relation to voyage expenses of the vessels. Amounts due to Navios Holdings as of June 30, 2016 were $0 ($92 as of December 31, 2015).

Omnibus Agreement: On November 18, 2014, Navios Midstream entered into an omnibus agreement, with Navios Acquisition, Navios Holdings and Navios Partners in connection with the Navios Midstream IPO, pursuant to which Navios Acquisition, Navios Holdings, Navios Partners and their controlled affiliates generally have agreed not to acquire or own any VLCCs, crude oil tankers, refined petroleum product tankers, LPG tankers or chemical tankers under time charters of five or more years. The omnibus agreement contains significant exceptions that will allow Navios Acquisition, Navios Holdings, Navios Partners or any of their controlled affiliates to compete with Navios Midstream under specified circumstances.

 

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NAVIOS MARITIME MIDSTREAM PARTNERS L.P.

UNAUDITED CONDENSED NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(Expressed in thousands of U.S. Dollars except unit and per unit data)

 

Under the omnibus agreement, Navios Midstream and its subsidiaries granted to Navios Acquisition a right of first offer on any proposed sale, transfer or other disposition of any of its VLCCs or any crude oil tankers, refined petroleum product tankers, LPG tankers or chemical tankers and related charters owned or acquired by Navios Midstream. Likewise, Navios Acquisition granted a similar right of first offer to Navios Midstream for any of the VLCCs, crude oil tanker, refined petroleum product tanker, LPG tanker or chemical tanker under charter for five or more years it might own. These rights of first offer will 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.

Backstop Agreements: On November 18, 2014, Navios Acquisition entered into backstop agreements with Navios Midstream. In accordance with the terms of the backstop agreements, Navios Acquisition has provided a backstop commitment to charter–in the Shinyo Ocean and the Shinyo Kannika for a two-year period as of their scheduled redelivery at the currently contracted rate if the market charter rate is lower than the currently contracted rate. Further, Navios Acquisition has provided a backstop commitment to charter-in the Nave Celeste for a two-year period as of its scheduled redelivery, at the net time charter-out rate per day (net of commissions) of $35 if the market charter rate is lower than the charter-out rate of $35. Navios Acquisition has also provided a backstop commitment to charter-in the option vessels, the Nave Galactic and the Nave Quasar for a four-year period as of their scheduled redelivery, at the net time charter-out rate per day (net of commissions) of $35 if the market charter rate is lower than the charter-out rate of $35. Conversely, if market charter rates are higher during the backstop period, such vessels will be chartered out to third-party charterers at prevailing market rates and Navios Acquisition’s backstop commitment will not be triggered. The backstop commitment does not include any profit sharing.

General Partner Option Agreement:  Navios Holdings has a ten-year option to purchase a minimum of 25% of the general partner interest held by the general partner, the incentive distribution rights held by the general partner and/or the membership interests in the general partner from Navios Acquisition, each at fair market value. The option expires on November 18, 2024.

Option Vessels:  On November 18, 2014, Navios Midstream entered into a share purchase agreement with Navios Acquisition, pursuant to which Navios Midstream will have options, that are exercisable through November 18, 2016, to acquire the capital stock of up to seven vessel-owning subsidiaries of Navios Acquisition that own seven VLCC vessels and the related time charters. In June 2015, Navios Midstream exercised its option and acquired two of the seven vessels, the Nave Celeste and the C. Dream and holds options to acquire the capital stock for five vessel-owning subsidiaries of Navios Acquisition.

NOTE 9: COMMITMENTS AND CONTINGENCIES

The Company is involved in various disputes and arbitration proceedings arising in the ordinary course of business. Provisions are recognized in the financial statements for all such proceedings where the Company believes that a liability may be probable, and for which the amounts are reasonably estimable, based upon facts known at the date of the financial statements were prepared. In the opinion of the management, the ultimate disposition of these matters individually and in aggregate will not materially affect the Company’s financial position, results of operations or liquidity.

NOTE 10: SEGMENT INFORMATION

The Company reports financial information and evaluates its operations by charter revenues. The Company does not use discrete financial information to evaluate operating results for each type of charter. As a result, management reviews operating results solely by revenue per day and operating results of the fleet and thus the Company has determined that it operates under one reportable segment.

Company monitors operating revenue by geographic region for the Company’s reportable segment. Revenue is allocated on the basis of the geographic region in which the customer is located. Revenues from specific geographic regions which contribute over 10% of total revenue are disclosed separately. For the three and six month periods ended June 30, 2016 and 2015, all the revenues were derived from customers located in Asia.

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.

 

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NAVIOS MARITIME MIDSTREAM PARTNERS L.P.

UNAUDITED CONDENSED NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(Expressed in thousands of U.S. Dollars except unit and per unit data)

 

NOTE 11: ISSUANCE OF UNITS

In connection with the initial public offering (“IPO”) of Navios Midstream in November 2014, Navios Midstream acquired all of the outstanding shares of capital stock of four of Navios Acquisition’s vessel-owning subsidiaries (Shinyo Ocean Limited, Shinyo Kannika Limited, Shinyo Kieran Limited and Shinyo Saowalak Limited) in exchange for: (i) all of the estimated net proceeds from the IPO amounting to $110,403; (ii) $104,451 of the $126,000 borrowings under Navios Midstream’s new credit facility; (iii) 9,342,692 subordinated units and 1,242,692 common units; and (iv) 381,334 general partner units, representing a 2.0% general partner interest in Navios Midstream, and all of the incentive distribution rights in Navios Midstream, to our General Partner.

In June 2015, Navios Midstream exercised its option to acquire the shares of the vessel-owning subsidiaries of the Nave Celeste and the C. Dream from Navios Acquisition for an aggregate purchase price of $100,000. The aggregate purchase price consisted of 1,592,920 Series A Units, issued to Navios Acquisition, and $73,000 cash consideration.

Upon the expiration of such subordination period in June 2018, the Series A Units will automatically convert into common units.

On June 18, 2015 Navios Midstream issued 32,509 additional general partner units to the General Partner, in order the General Partner to maintain its 2% general partnership interest. The net proceeds from the issuance of the general partnership units were $551.

As of June 30, 2016, there were outstanding: 9,342,692 common units, 9,342,692 subordinated units, 1,592,920 subordinated Series A Units and 413,843 general partnership units. As of June 30, 2016, Navios Acquisition owned a 60.85% limited partner interest in Navios Midstream, which included a 2.0% general partner interest.

NOTE 12: CASH DISTRIBUTIONS AND EARNINGS/ (LOSSES) PER UNIT

The partnership agreement of Navios Midstream 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 $0.4125 per unit or $1.65 per unit per year and is made in the following manner:

 

    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 $0.4125 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 $0.4125; and

 

    Third, 98% to all unitholders, pro rata, and 2% to General Partner, until each unit has received an aggregate amount of $0.4744.

Thereafter there are incentive distribution rights held by the General Partner, which are analyzed as follows:

 

            Marginal Percentage
Interest in Distributions
 
   Total Quarterly
Distribution
Total Amount
     Common
and
subordinated
Unitholders
    General
Partner
    Holders of
IDRs
 

Minimum Quarterly Distribution

   $ 0.4125         98.0     2.0     0

First Target Distribution

   up to $ 0.4744         98.0     2.0     0

Second Target Distribution

   above $  0.4744          
   up to $ 0.5156         85.0     2.0     13.0

Third Target Distribution

   above $ 0.5156          
   up to $ 0.6188         75.0     2.0     23.0

Thereafter

   above $ 0.6188         50.0     2.0     48.0

 

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NAVIOS MARITIME MIDSTREAM PARTNERS L.P.

UNAUDITED CONDENSED NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(Expressed in thousands of U.S. Dollars except unit and per unit data)

 

On January 22, 2016, the Board of Directors authorized its quarterly cash distribution for the three month period ended December 31, 2015 of $0.4225 per unit. The distribution was paid on February 12, 2016 to all holders of record of common, subordinated, subordinated Series A units and general partner units on February 9, 2016. The aggregate amount of the declared distribution was $8,742.

On April 21, 2016, the Board of Directors of Navios Midstream authorized its quarterly cash distribution for the three month period ended March 31, 2016 of $0.4225 per unit. The distribution was paid on May 12, 2016 to all holders of record of common, subordinated, subordinated Series A units and general partner units on May 6, 2016. The aggregate amount of the declared distribution was $8,742.

For the period subsequent to the IPO, Navios Midstream calculates earnings per unit by allocating reported net income for each period to each class of units based on the distribution waterfall for available cash specified in Navios Midstream’s partnership agreement, net of the unallocated earnings. Basic earnings per unit are determined by dividing net income by the weighted average number of units outstanding during the period. Basic and diluted net earnings per unit are the same because the Company does not have any potentially dilutive units outstanding for the period presented.

In determining earnings per unit, the net loss for the period prior to the IPO, has been allocated to the general partner.

Net loss per unit undistributed is determined by taking the distributions in excess of net income and allocating between common units, subordinated units and general partner units on a 98%-2% basis.

The calculations of the basic and diluted earnings per unit are presented below.

 

     Three Month
Period ended
June 30, 2016
($ ’000)
(unaudited)
     Six Month
Period ended
June 30, 2016
($ ’000)
(unaudited)
     Three Month
Period ended
June 30, 2015
($ ’000)
(unaudited)
     Six Month
Period ended
June 30, 2015
($ ’000)
(unaudited)
 

Net income attributable to Navios Maritime Midstream Partners L.P. subsequent to initial public offering and limited partners’ interest in net income:

   $ 5,889       $ 13,384       $ 5,394       $ 11,706   

Earnings attributable to:

           

Common unit holders

   $ 2,659       $ 6,043       $ 2,435       $ 5,528   

Subordinated unit holders Series A

   $ 453       $ 1,030       $ 415       $ 415   

Subordinated unit holders

   $ 2,659       $ 6,043       $ 2,435       $ 5,528   

Weighted average units outstanding (basic and diluted)

           

Common unit holders

     9,342,692         9,342,692         9,342,692         9,342,692   

Subordinated unit holders Series A

     1,592,920         1,592,920         227,560         114,409   

Subordinated unit holders

     9,342,692         9,342,692         9,342,692         9,342,692   

Earnings per unit (basic and diluted):

           

Common unit holders

   $ 0.28       $ 0.65       $ 0.26       $ 0.59   

Subordinated unit holders Series A

   $ 0.28       $ 0.65       $ 1.82       $ 3.63   

Subordinated unit holders

   $ 0.28       $ 0.65       $ 0.26       $ 0.59   

Earnings per unit - distributed (basic and diluted):

           

Common unit holders

   $ 0.42       $ 0.85       $ 0.41       $ 0.83   

Subordinated unit holders Series A

   $ 0.42       $ 0.85       $ 2.89       $ 5.74   

Subordinated unit holders

   $ 0.42       $ 0.85       $ 0.41       $ 0.83   

(Losses) per unit - undistributed (basic and diluted):

           

Common unit holders

   $ (0.14    $ (0.20    $ (0.15    $ (0.24

Subordinated unit holders Series A

   $ (0.14    $ (0.20    $ (1.06    $ (2.11

Subordinated unit holders

   $ (0.14    $ (0.20    $ (0.15    $ (0.24

 

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NAVIOS MARITIME MIDSTREAM PARTNERS L.P.

UNAUDITED CONDENSED NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(Expressed in thousands of U.S. Dollars except unit and per unit data)

 

NOTE 13: INCOME TAXES

Marshall Islands, British Virgin Islands, and Hong Kong, do not impose a tax on international shipping income. Under the laws of Marshall Islands, British Virgin Islands, and Hong Kong, of the companies’ incorporation and vessels’ registration, the companies are subject to registration and tonnage taxes which have been included in the daily management fee.

In accordance with the currently applicable Greek law, foreign flagged vessels that are managed by Greek or foreign ship management companies having established an office in Greece are subject to duties towards the Greek state which are calculated on the basis of the relevant vessels’ tonnage. The payment of said duties exhausts the tax liability of the foreign ship owning company and the relevant manager against any tax, duty, charge or contribution payable on income from the exploitation of the foreign flagged vessel.

Pursuant to Section 883 of the Internal Revenue Code of the United States (the “Code”), 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 exemption from income taxes to U.S. corporations. All of the Company’s 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.

For the period after the IPO, the Company believes that the second criterion can also be satisfied based on the trading volume and ownership of the Company’s units but no assurance can be given that this will remain so in the future.

NOTE 14: SUBSEQUENT EVENTS

On July 21, 2016, the Board of Directors of Navios Midstream authorized its quarterly cash distribution for the three month period ended June 30, 2016 of $0.4225 per unit. The distribution is payable on August 12, 2016 to all holders of record of common, subordinated, subordinated Series A units and general partner units on August 10, 2016. The aggregate amount of the declared distribution is anticipated to be $8,742.

On July 29, 2016, Navios Midstream entered into a Continuous Offering Program Sales Agreement (the “Sales Agreement”) with S. Goldman Capital LLC, as sales agent (the “Agent”), pursuant to which Navios Midstream may issue and sell from time to time through the Agent common units representing limited partner interests having an aggregate offering price of up to $25,000. Sales of the units are to be made pursuant to the Company’s shelf registration statement filed on Form F-3 (File No. 333-208623) with the Securities and Exchange Commission and declared effective on January 4, 2016. The Sales Agreement contains, among other things, customary representations, warranties and covenants by Navios Midstream and indemnification obligations of Navios Midstream and the Agent as well as certain termination rights for both Navios Midstream and the Agent. The foregoing description of the Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Agreement, a copy of which is filed herewith as Exhibit 1.1 and is incorporated by reference herein.

 

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Table of Contents

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this Report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

NAVIOS MARITIME MIDSTREAM PARTNERS L.P.
By:  

/s/ Angeliki Frangou

  Angeliki Frangou
  Chief Executive Officer

Date: July 29, 2016

E XHIBIT 1.1

NAVIOS MARITIME MIDSTREAM PARTNERS L.P.

Common Units representing limited partner interests

CONTINUOUS OFFERING PROGRAM SALES AGREEMENT

July 29, 2016

S. Goldman Capital LLC

825 Third Avenue, 34th Floor

New York, New York 10022

Ladies and Gentlemen:

Navios Maritime Midstream Partners L.P., a Marshall Islands limited partnership (the “ Partnership ”), proposes, subject to the terms and conditions stated herein, to issue and sell from time to time to or through S. Goldman Capital LLC, as sales agent and/or principal (the “ Agent ”), common units representing limited partner interests in the Partnership (the “ Common Units ) , having an aggregate gross sales price of up to $25,000,000 on the terms set forth in Section 2 of this Continuous Offering Program Sales Agreement (the “ Sales Agreement ”). The Partnership agrees that whenever it determines to sell Common Units directly to the Agent as principal, it will enter into a separate agreement (each, a “ Terms Agreement ”) in substantially the form of Annex 1 hereto, relating to such sale in accordance with Section 3 of this Sales Agreement.

It is understood and agreed to by all parties hereto that the Partnership was formed on October 13, 2014 by Navios Maritime Acquisition Corporation, a Marshall Islands corporation (“ Navios Maritime Acquisition ”), to own, operate and acquire crude oil tankers under long-term employment contracts, as described more particularly in the General Disclosure Package, the Preliminary Prospectus and the Prospectus (each as defined herein). Navios Midstream GP LLC (the “ General Partner ”) was also formed on October 13, 2014 to act as the general partner of the Partnership. It is further understood and agreed by all parties hereto that, as of the date of this Sales Agreement: (i) Navios Maritime Acquisition directly owns a 100% membership interest in the General Partner and a 58.85% limited partner interest in the Partnership; (ii) the General Partner directly owns a 2% general partner interest in the Partnership; and (iii) the Partnership directly owns a 100% membership interest in Navios Maritime Midstream Operating LLC, a Marshall Islands limited liability company (the “ Operating Company ”), which owns 100% of the outstanding capital stock of each of the subsidiaries listed on Schedule A (together, the “ Operating Subsidiaries ” and each individually, an “ Operating Subsidiary ”).

The General Partner, the Partnership and the Operating Company are hereinafter collectively referred to as the “ Partnership Parties ,” and together with the Operating Subsidiaries are hereinafter referred to collectively as the “ Partnership Entities .” Navios Maritime Acquisition and the Partnership Parties are hereinafter referred to collectively as the “ Navios Parties ,” and collectively with the Operating Subsidiaries, the “ Navios Entities .”

All references in this Sales Agreement to financial statements and schedules and other information which is “contained,” “included” or “stated” in the Registration Statement or the Prospectus (or other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which are incorporated by reference in the Registration Statement or the Prospectus, as the case may be, at the relevant time.

 

1


Section 1.  Representations and Warranties . Each of the Navios Parties, jointly and severally, represents and warrants to the Agent that as of the date of this Sales Agreement, each Registration Statement Amendment Date (as defined in Section 3 below), each Partnership Periodic Report Date (as defined in Section 3 below), each Partnership Earnings Report Date (as defined in Section 3 below), each Request Date (as defined in Section 3 below), each Applicable Time (as defined in Section 1(a) below) and each Settlement Date (as defined in Section 2 below); provided , however , that if such date occurs during a period when the Partnership has not instructed the Agent to make any sales pursuant to Section 2(b) hereof or all such sales pursuant to prior instructions have been completed and the Partnership does not intend to issue an instruction pursuant to Section 2(b) for a period of not less than five (5) business days (in each case, a “ Suspension Period ”), the Partnership shall not make the representations and warranties of the Partnership contained in this Section 1 until the end of the Suspension Period; provided , further , that provision of the representations and warranties contained in this Section 1 by the Partnership shall be a condition precedent to the commencement of any offering of Common Units under this Sales Agreement upon the termination of the Suspension Period:

(a) The Partnership has filed with the Securities and Exchange Commission (the “ Commission ”) a shelf registration statement under the Securities Act of 1933, as amended (the “ 1933 Act ”), on Form F-3 (File No. 333-208623), in respect of the Partnership’s Common Units not earlier than three years prior to the date hereof; each of the Registration Statement and any amendment thereto has become effective under the 1933 Act; the Partnership has complied with each request (if any) from the Commission for additional information; and no stop order suspending the effectiveness of such registration statement or any part thereof has been issued and no proceeding for that purpose has been initiated or, to the knowledge of the Partnership, threatened by the Commission, and no notice of objection of the Commission to the use of such form of registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act has been received by the Partnership (the base prospectus filed as part of such registration statement, in the form in which it has most recently been filed with the Commission on or prior to the date of this Sales Agreement, is hereinafter called the “ Basic Prospectus ”; the various parts of such registration statement, excluding any Forms T-1 but including all other exhibits thereto and any prospectus supplement or prospectus relating to the Common Units that is filed with the Commission and deemed by virtue of Rule 430B under the 1933 Act to be part of such registration statement, each as amended at the time such part of the registration statement became effective, are hereinafter collectively called the “ Registration Statement ”; the prospectus supplement specifically relating to the Common Units prepared and filed with the Commission pursuant to Rule 424(b) under the 1933 Act is hereinafter called the “ Prospectus Supplement ”; the Basic Prospectus, as amended and supplemented by the Prospectus Supplement, is hereinafter called the “ Prospectus ”; any reference herein to the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 6 of Form F-3 under the 1933 Act; provided , however , that no representation contained in any exhibit to any such incorporated document, other than the representations contained herein, shall be deemed to be made to the Agent; any reference to any amendment or supplement to the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include any post-effective amendment to the Registration Statement, any prospectus supplement or base prospectus relating to the Common Units filed with the Commission pursuant to Rule 424(b) under the 1933 Act and any documents filed under the Securities Exchange Act of 1934, as amended (the “ 1934 Act ”), and incorporated therein, in each case after the date of the Basic Prospectus, the Prospectus Supplement or the Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Partnership filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement; and any “issuer free writing prospectus” as defined in Rule 433 under the 1933 Act relating to the Common Units is hereinafter called an “ Issuer Free Writing Prospectus ”).

 

2


No order preventing or suspending the use of the Basic Prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission, and the Basic Prospectus and the Prospectus Supplement, at the time of filing thereof, conformed in all material respects to the requirements of the 1933 Act and the rules and regulations of the Commission thereunder (the “ 1933 Act Regulations ”) and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.

For the purposes of this Sales Agreement, the “ Applicable Time ” means, with respect to any Common Units, the time of sale of such Common Units pursuant to this Sales Agreement; the Prospectus and the applicable Issuer Free Writing Prospectus(es) issued at or prior to such Applicable Time, taken together (collectively, and, with respect to any Common Units, together with the public offering price of such Common Units, the “ General Disclosure Package ”) as of each Applicable Time and each Settlement Date, will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each applicable Issuer Free Writing Prospectus will not conflict with the information contained in the Registration Statement, the Prospectus Supplement or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and taken together with the General Disclosure Package as of such Applicable Time, will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

(b) The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus, when they became effective or were filed with the Commission, as the case may be, complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the Commission thereunder (the “ 1934 Act Regulations ”), and, when read together with the other information in the Prospectus, (a) at the time the Registration Statement became effective, (b) at the time the Prospectus was issued and (c) on the date of this Sales Agreement, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.

(c) This Sales Agreement has been, and any Terms Agreement will be, duly authorized, executed and delivered by each of the Navios Parties.

(d) At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest time thereafter that the Partnership or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Common Units and at the date hereof, the Partnership was not and is not an “ineligible issuer,” as defined in Rule 405 under the 1933 Act.

(e) From the time of the initial filing of the Registration Statement to the Commission through the date hereof, the Partnership has been and is an “emerging growth company,” as defined in Section 2(a) of the 1933 Act (an “ Emerging Growth Company ”).

(f) There are no restrictions on subsequent transfers of the Common Units under the laws of the Republic of the Marshall Islands.

(g) The financial statements included in, or incorporated by reference into, the Registration Statement, the General Disclosure Package and the Prospectus, together with the related schedules and notes, present fairly the financial position of the entities purported to be shown thereby on the basis stated

 

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therein on the dates indicated and the results of operations, comprehensive income, cash flows and changes in partners’ capital of the Partnership and its consolidated subsidiaries for the periods specified; said financial statements have been prepared in conformity with generally accepted accounting principles in the United States (“ GAAP ”) applied on a consistent basis throughout the periods involved. The supporting schedules, if any, present fairly in all material respects in accordance with GAAP the information required to be stated therein. The selected financial data and the summary financial information included in or incorporated by reference into the Registration Statement, the General Disclosure Package and the Prospectus present fairly in all material respects the information shown therein and have been compiled on a basis consistent with that of the audited financial statements included therein. Except as included therein, no historical or pro forma financial statements or supporting schedules are required to be included or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus under the 1933 Act or the 1933 Act Regulations.

(h) Except as otherwise stated therein, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, (A) there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Partnership Entities considered as one enterprise, whether or not arising in the ordinary course of business (a “ Material Adverse Effect ”), (B) there have been no transactions entered into by any of the Partnership Entities, other than those in the ordinary course of business, which are material with respect to the Partnership Entities considered as one enterprise, or otherwise than as set forth or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus, and (C) except as disclosed in the Registration Statement, the General Disclosure Package or the Prospectus, there has been no dividend or distribution of any kind declared, paid or made by the Partnership on any class of its outstanding general partner or limited partner interests.

(i) Except as described in the General Disclosure Package and the Prospectus, no Navios Entity has sold or issued any securities during the six-month period preceding the date of the Prospectus, including any sales pursuant to Rule 144A under, or Regulations D or Regulation S of, the 1933 Act, other than units issued pursuant to employee benefit plans, qualified stock options plans or other employee compensation plans or pursuant to outstanding options, rights or warrants, that would be required to be integrated with the sale of the Common Units.

(j) Ernst & Young (Hellas) Certified Auditors Accountants S.A. and PricewaterhouseCoopers S.A., who certified the financial statements and supporting schedules included in, or incorporated by reference into, the Registration Statement, the General Disclosure Package and the Prospectus, (A) whose reports appear in the Partnership’s Annual Report on Form 20-F for the year ended December 31, 2015, which is incorporated by reference into the General Disclosure Package and Prospectus, and (B) and who has delivered the initial letter referred to in Section 6(g) hereof, are, and during the periods covered by such reports, was and are independent registered public accountants as required by the 1933 Act, the 1933 Act Regulations and the Public Accounting Oversight Board.

(k) Each of the Navios Parties has been duly formed or incorporated, as applicable, and is validly existing as a limited partnership, limited liability company or corporation, as applicable, and is in good standing under the laws of the jurisdiction of its incorporation or organization, and each of the Navios Parties has full partnership, limited liability company or corporate power and authority, as applicable, necessary to enter into and perform its obligations under this Sales Agreement, and the power and authority to own, lease and operate the Vessels (as defined below). Each of the Navios Parties is duly qualified to transact business and is in good standing as a foreign limited partnership, foreign limited liability company or foreign corporation, as applicable, in each other jurisdiction in which such qualification is required for the conduct of the business as described in the Registration Statement, the General Disclosure Package and the Prospectus, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect or subject the limited partners of the Partnership to any material liability or disability.

 

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(l) The General Partner has full power and authority to act as general partner of the Partnership in all material respects as described in the Registration Statement, the General Disclosure Package and the Prospectus.

(m) Navios Maritime Acquisition owns all of the issued and outstanding membership interests of the General Partner; such membership interests have been duly authorized and validly issued in accordance with the limited liability company agreement of the General Partner (the “ GP LLC Agreement ”) and are fully paid (to the extent required by the General Partner LLC Agreement) and non-assessable (except as such non-assessability may be affected by matters described in Section 51 of the Marshall Islands Limited Liability Company Act (the “ Marshall Islands LLC Act ”)); and Navios Maritime Acquisition owns such membership interests free and clear of all liens, encumbrances, security interests, pledges, mortgages, charges or other claims (collectively, “ Liens ”), restrictions on transferability in the GP LLC Agreement or as described in the Registration Statement, the General Disclosure Package and the Prospectus.

(n) Except as otherwise agreed, the General Partner is the sole general partner of the Partnership with a 2.0% general partner interest and the Incentive Distribution Rights in the Partnership; such general partner interest will have been duly authorized and validly issued in accordance with the Partnership Agreement; and the General Partner owns such general partner interest free and clear of all Liens (except restrictions on transferability as described in the Registration Statement, General Disclosure Package and the Prospectus or the Partnership Agreement).

(o) The Common Units and the limited partner interests represented thereby have been duly authorized by the Partnership Agreement and, when issued and delivered in accordance with the terms hereof, will be validly issued, fully paid (to the extent required under the Partnership Agreement) and non-assessable (except as such non-assessability may be affected by matters described in Section 41 of the Marshall Islands LP Act); the Common Units conform to all statements relating thereto contained in the Registration Statement, General Disclosure Package and the Prospectus, and such description conforms to the rights set forth in the Partnership Agreement; no holder of the Common Units will be subject to personal liability by reason of being such a holder.

(p) The Partnership owns all of the issued and outstanding membership interests of the Operating Company; such membership interests have been duly authorized and validly issued in accordance with the limited liability company agreement of the Operating Company (the “ Operating Company LLC Agreement ”) and are fully paid (to the extent required by the Operating Company LLC Agreement) and non-assessable (except as such non-assessability may be affected by matters described in Section 51 of the Marshall Islands LLC Act); and the Partnership owns such membership interests free and clear of all Liens. As of the date of this Sales Agreement, the only subsidiaries of the Partnership are the Operating Company and the Operating Subsidiaries.

(q) The Operating Company will own, or will have the right to acquire, all of the issued and outstanding shares of capital stock of each of the Operating Subsidiaries; such shares of capital stock will be duly authorized and validly issued in accordance with the articles of incorporation and by-laws of the Operating Subsidiaries and are fully paid and non-assessable (except as such non-assessability may be affected by matters described in Sections 43 and 44 of the Marshall Islands Business Corporations Act); and the Operating Company owns such shares of capital stock free and clear of all Liens other than those Liens arising under the Partnership’s credit facility.

 

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(r) The Partnership has an authorized capitalization as set forth in each of the General Disclosure Package and the Prospectus.

(s) Except as identified in the Registration Statement, the General Disclosure Package and the Prospectus or contained in the relevant organizational documents of the Partnership Entities, there are no (A) preemptive rights or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any equity securities of the Partnership Entities or (B) outstanding options or warrants to purchase any securities of the Partnership Entities. Neither the filing of the Registration Statement nor the offering or sale of the Common Units as contemplated by this Sales Agreement gives rise to any rights for or relating to the registration of any other Common Units or other securities of the Partnership.

(t) Each of the Navios Parties has the legal right and power, and all authorization and approval required by law, to enter into this Sales Agreement. The Partnership has all requisite partnership power and authority to issue, sell and deliver the Common Units in accordance with and upon the terms and conditions set forth in this Sales Agreement. All corporate, partnership and limited liability company action (including unitholder, stockholder, member or partner action), as the case may be, required to be taken by any of the Navios Parties for the authorization, issuance, sale and delivery of the Common Units hereunder, and the consummation of the transactions contemplated by this Sales Agreement shall have been validly taken.

(u) Each of the Partnership Agreement, GP LLC Agreement and the Operating Company LLC Agreement (collectively, the “ Organizational Agreements ”) has been duly authorized, executed and delivered by the parties thereto, and each is a valid and legally binding agreement of such parties, enforceable against such parties in accordance with their terms, provided that, with respect to each agreement described in this subsection, the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and provided further that the indemnity, contribution and exoneration provisions contained in any of such Organizational Agreements may be limited by applicable laws and public policy.

(v) None of the Partnership Parties is (A) in violation of its articles of incorporation, partnership agreement, limited liability company agreement, charter, by-laws or similar organizational document, (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any of the Partnership Parties is a party, or by which it or any of them may be bound, or to which any of the property or assets of any of the Partnership Parties is subject (collectively, “ Agreements and Instruments ”) except for such defaults that would not, singly or in the aggregate, result in a Material Adverse Effect, or (C) in violation of any law, statute, rule, regulation, judgment, order, writ or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency having jurisdiction over the Partnership Parties or any of their respective properties, assets or operations (each, a “ Governmental Entity ”), except for such violations that would not, singly or in the aggregate, result in a Material Adverse Effect. The execution, delivery and performance of this Sales Agreement and any Terms Agreement, including the consummation of the transactions contemplated in the Registration Statement, the General Disclosure Package and the Prospectus (including but not limited to the issuance and sale of the Common Units and the use of the proceeds from the sale of the Common Units as described therein under the caption “Use of Proceeds”) and compliance by each of the Navios Parties with its obligations hereunder and thereunder

 

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have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of any of the Partnership Parties pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not, singly or in the aggregate, result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles of incorporation, partnership agreement, limited liability company agreement, charter, by-laws or similar organizational document of any of the Partnership Parties or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any Governmental Entity. As used herein, a “ Repayment Event ” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by any of the Partnership Parties.

(w) No permit, consent, approval, authorization, order, registration, filing or qualification (“ Consent ”) of or with any court, governmental agency or body having jurisdiction over any of the Navios Parties or any of their properties or assets is required in connection with the transactions contemplated herein, the issuance or sale by the Partnership of the Common Units, the execution, delivery and performance of this Sales Agreement by the Navios Parties that are parties thereto and, the Organizational Agreements and the other agreements by the Navios Parties that are parties thereto except (A) for such permits, consents, approvals and similar authorizations required under the 1933 Act, the 1934 Act and state securities or “Blue Sky” laws, (B) for such consents that have been obtained, (C) for such consents that, if not obtained, would not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect or materially adversely affect the ability of the Navios Parties to consummate the transactions contemplated herein and (D) as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus.

(x) The statements in the General Disclosure Package and the Prospectus, under the headings “Material U.S. Federal Income Tax Considerations,” “Marshall Islands Tax Consequences,” “The Securities We May Offer,” and “Plan of Distribution” accurately and fairly summarize the matters therein described and the legal conclusions with respect to such matters.

(y) No labor dispute with the employees of any of the Navios Parties exists or, to the knowledge of the Navios Parties, is imminent, and the Navios Parties are not aware of any existing or imminent labor disturbance by the employees of any of their principal suppliers, manufacturers, customers or contractors, which, in either case, would result in a Material Adverse Effect.

(z) Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or, to the knowledge of the Navios Parties, threatened against or affecting any of the Navios Parties, which might result in a Material Adverse Effect, or which might materially and adversely affect their respective properties or assets or the consummation of the transactions as contemplated in this Sales Agreement or the performance by the Navios Parties of their obligations hereunder; and the aggregate of all pending legal or governmental proceedings to which any of the Navios Parties are parties or of which any of their respective properties or assets is the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, could not result in a Material Adverse Effect.

 

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(aa) There are no contracts or documents which are required to be described in the Registration Statement, the General Disclosure Package or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required.

(bb) The Partnership Entities own or possess, or can acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively, “ Intellectual Property ”) necessary to carry on the business now operated by them, and none of the Partnership Entities has received any notice or is otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interest of the Partnership Entities therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly or in the aggregate, would result in a Material Adverse Effect.

(cc) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the performance by the Navios Parties of their obligations hereunder, in connection with the offering, issuance or sale of the Common Units hereunder, except such as have been already obtained or as may be required under the 1933 Act or the 1933 Act Regulations, the rules of the New York Stock Exchange (the “ NYSE ”), state securities laws or the rules of Financial Industry Regulatory Authority, Inc. (“ FINRA ”).

(dd) None of the Navios Parties nor any affiliate thereof has taken, directly or indirectly, any action which is designed to or which has constituted or which would be expected to cause or result in stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Common Units which is designed, or would be expected, to cause or result in, or which constitutes, the stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Common Units or to result in a violation of Regulation M under the 1934 Act. For the avoidance of doubt, the foregoing sentence shall not include any activities by the Agent as to which the Navios Parties make no representation.

(ee) Each of the vessels listed on Schedule A hereto (the “ Vessels ”) has been duly registered as a vessel under the laws of the jurisdiction set forth opposite its name on Schedule A and is solely owned by the Operating Subsidiary set forth opposite its name on Schedule A. Each such Operating Subsidiary has good and marketable title to the applicable Vessel, and each such Vessel is in good standing with respect to the payment of past and current taxes, fees and other amounts payable under the laws of the jurisdiction where it is registered as would affect its registry with the ship registry of such jurisdiction, in both cases except for such Liens, defects of the title of record, failure to pay such taxes, fees and other amounts (A) as described, and subject to the limitations contained, in the Registration Statement, General Disclosure Package and the Prospectus, (B) arising under the Partnership’s credit facility or (C) as do not, individually or in the aggregate, materially affect the value of any such Vessel and do not materially interfere with the use of any such Vessel as it has been used in the past and is proposed to be used in the future, as described in the Registration Statement, General Disclosure Package and the Prospectus.

(ff) Except as described in or contemplated by the General Disclosure Package and the Prospectus, and except for those that are the responsibility of the counterparties to obtain pursuant to the terms of the agreements set forth in Schedule B relating to the Vessels as such agreements are currently in effect (the “ Charter Agreements ”), each of the Partnership Entities possesses such permits, licenses, approvals, consents and other authorizations (collectively, “ Governmental Licenses ”) issued by the

 

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appropriate Governmental Entities necessary to conduct the business now operated by them, except where the failure so to possess would not, singly or in the aggregate, result in a Material Adverse Effect. Each of the Partnership Entities are in compliance with the terms and conditions of all Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, be expected to result in a Material Adverse Effect. All of the Governmental Licenses are valid and in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in a Material Adverse Effect. None of the Partnership Entities have received any notice of proceedings relating to the revocation or modification of any Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could reasonably be expected to result in a Material Adverse Effect.

(gg) Each of the Partnership Entities has good and marketable title to all real property described in the Prospectus as owned by them and good title to all other properties owned by them, in each case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or encumbrances of any kind except such as (A) are described in the Registration Statement, the General Disclosure Package and the Prospectus or (B) do not, singly or in the aggregate, materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Partnership Entities; and all of the leases and subleases material to the business of the Partnership Entities, considered as one enterprise, and under which the Partnership Entities hold properties described in the Registration Statement, the General Disclosure Package or the Prospectus, are in full force and effect, and none of the Partnership Entities have any notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Partnership Entities under any of the leases or subleases mentioned above, or affecting or questioning the rights of the Partnership Entities to the continued possession of the leased or subleased premises under any such lease or sublease, other than such claims as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(hh) Except as described in the Registration Statement, the General Disclosure Package and the Prospectus or would not, singly or in the aggregate, result in a Material Adverse Effect, (A) none of the Partnership Entities is in violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products, asbestos-containing materials or mold (collectively, “ Hazardous Materials ”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “ Environmental Laws ”), (B) each of the Partnership Entities has, or operates pursuant to, or at the Closing Time will have or will operate pursuant to, all applicable permits, authorizations and approvals required to conduct its business in the manner described in the Registration Statement, General Disclosure Package and the Prospectus under any applicable Environmental Laws and are each in compliance with their requirements, (C) there are no pending or, to the knowledge of the Navios Parties, threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigations or proceedings relating to any Environmental Law against any of the Partnership Entities and (D) there are no events or circumstances that would reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or Governmental Entity, against or affecting the Partnership Entities relating to Hazardous Materials or any Environmental Laws.

(ii) Except as described in or contemplated by the General Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) and as provided in the Partnership’s credit

 

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facility and by Section 40 of the Marshall Islands LLC Act, neither the Operating Company nor any Operating Subsidiary is currently prohibited, directly or indirectly, from paying any dividends to the Partnership or the Operating Company, as the case may be, from making any other distribution on such subsidiary’s equity securities, from repaying to the Partnership or the Operating Company any loans or advances to such subsidiary from the Partnership or the Operating Company or from transferring any of such subsidiary’s property or assets to the Partnership, the Operating Company or any other subsidiary of the Partnership.

(jj) The Partnership Entities maintain effective internal control over financial reporting (as defined under Rules 13-a15 and 15d-15 under the 1934 Act Regulations) and a system of internal accounting controls sufficient to provide reasonable assurances that (A) transactions are executed in accordance with management’s general or specific authorization; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (C) access to assets is permitted only in accordance with management’s general or specific authorization; and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, since the end of the Partnership’s most recent audited fiscal year, there has been (1) no material weakness in the Partnership Entities’ internal control over financial reporting (whether or not remediated) and (2) no change in the Partnership Entities’ internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Partnership Entities’ internal control over financial reporting.

The Partnership Entities maintain an effective system of disclosure controls and procedures (to the extent required by and as such term is defined under Rules 13-a15 and 15d-15 under the 1934 Act Regulations) that are designed to ensure that information required to be disclosed by the Partnership in the reports that it files or submits under the 1934 Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and is accumulated and communicated to the Partnership’s management to allow timely decisions regarding disclosure.

(kk) The Partnership will be in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley Act of 2002, the rules and regulations promulgated in connection therewith.

(ll) There are no stamp or other issuance or transfer taxes payable by or on behalf of the Agent in connection with the execution and delivery of this Sales Agreement, the issuance by the Partnership or sale by the Partnership of the Common Units or the consummation of the transactions contemplated by this Sales Agreement.

(mm) Each of the Partnership Entities has filed (or has obtained extensions with respect to) all material foreign, federal, state and local income and franchise tax returns required to be filed through the date of this Sales Agreement, which returns are correct and complete in all material respects, and has timely paid all taxes due from it, other than those (A) that are being contested in good faith and for which adequate reserves have been established in accordance with generally accepted accounting principles or (B) that, if not paid, would not have a Material Adverse Effect.

(nn) The Partnership is not now, nor after giving effect to the transactions contemplated herein will be, an “investment company” or a company “controlled by” an “investment company” under the Investment Company Act of 1940, as amended (the “ 1940 Act ”).

 

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(oo) After giving effect to the transactions contemplated herein, based on the Partnership’s current and expected assets, income and operations as described in the Registration Statement, General Disclosure Package and the Prospectus, and based on the assumptions and subject to the limitations described therein, the Partnership believes that it will not be a Passive Foreign Investment Company (“ PFIC ”) within the meaning of Section 1297 of the Internal Revenue Code for the tax year ending December 31, 2016 and believes that it is not likely to become a PFIC for any future tax year.

(pp) After giving effect to the transactions contemplated herein, based on the description of the Partnership set forth in the Registration Statement, General Disclosure Package and the Prospectus, and based on the assumptions and subject to the limitations described therein, the Partnership believes that it will qualify for the exemption from U.S. federal income tax on its U.S. source international transportation income under Section 883 of the Internal Revenue Code for the tax year ending December 31, 2016 and for future tax years.

(qq) None of the Partnership Entities, other than the Partnership, is classified as an association taxable as a corporation for United States federal income tax purposes. Each of the Partnership Entities, other than the Partnership, has properly elected to be disregarded as an entity separate from its owner for United States federal income tax purposes and has not revoked such election.

(rr) The Partnership Entities carry or are entitled to the benefits of insurance, with financially sound and reputable insurers, in such amounts and covering such risks as is generally maintained by companies of established repute engaged in the same or similar business, and all such insurance is in full force and effect. The Partnership Entities have no reason to believe that they will not be able (A) to renew their existing insurance coverage as and when such policies expire or (B) to obtain comparable coverage with respect to their respective businesses from similar institutions as may be necessary or appropriate to conduct their respective businesses as now conducted and at a cost that would not result in a Material Adverse Effect.

(ss) Any statistical, industry-related and market-related data included in the Registration Statement, the General Disclosure Package and the Prospectus are based on or derived from sources that the Partnership believes, after reasonable inquiry, to be reliable and accurate in all material respects and, to the extent required, the Partnership has obtained the written consent to the use of such data from such sources.

(tt) None of the Partnership Entities or, to the knowledge of the Partnership Entities, any director, officer, agent, employee, affiliate or other person acting on behalf of any of the Partnership Entities is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “ FCPA ”) since January 1, 2011, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA. The Partnership Entities and, to the knowledge of the Partnership Entities, the Partnership Entities’ affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures reasonably designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith. For the avoidance of doubt, as used in this subsection and in subsection (ww), references to any director, officer, agent, employee, affiliate or other individual or entity acting on behalf of the Partnership Entities shall be deemed to refer to such persons only insofar as they act in such capacities.

 

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As used in this subsection and subsections (ww), (xx) and (yy), the knowledge of the Partnership Entities shall mean the actual knowledge of the directors, executive officers and significant employees named in the Partnership’s Registration Statement or its Annual Report on Form 20-F for the year ended December 31, 2015.

(uu) To the extent the Partnership Entities are subject to such requirements, the operations of the Partnership Entities have, since January 1, 2011, complied with the applicable requirements of and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, and the applicable money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Entity (collectively, the “ Money Laundering Laws ”); and no action, suit or proceeding by or before any Governmental Entity involving the Partnership Entities with respect to the Money Laundering Laws is pending or, to the knowledge of the Navios Parties, threatened.

(vv) None of the Partnership Entities nor, to the knowledge of the Partnership Entities, any director, officer, employee, affiliate or agent of the Partnership Entities or any of their subsidiaries is an entity or individual (“ Person ”) currently the subject or target of any sanctions administered or enforced by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“ OFAC ”), the United States Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or any other relevant sanctions authority applicable to the Partnership Entities, in each case, solely to the extent applicable to the Partnership Entities (collectively, “ Sanctions ”), nor are the Partnership Entities located, organized or resident in a country or territory that is the subject of Sanctions (including as of the date of this Sales Agreement, Burma/Myanmar, Cuba, Iran, North Korea, Sudan and Syria—each an “ Embargoed Country ”); and the Partnership Entities will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner, vessel or other Person, to fund any activities of or business with any Person or vessel subject to Sanctions, or in any Embargoed Country, that, at the time of such funding, is the subject of Sanctions, or in any manner that would result in a violation of Sanctions by the Partnership Entities or any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).

(ww) Except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, neither the Partnership Entities nor, to the knowledge of the Partnership Entities, any director, officer or agent of the Partnership Entities or any of their subsidiaries or any Person in control of the Partnership Entities has, since January 1, 2011, (A) engaged in or is currently engaged in any dealings or transactions with any Person subject to Sanctions, or in any Embargoed Country, that at the time of the dealing or transaction would subject the Partnership Entities or any of the Partnership Entities’ directors, officers, agents or Persons in control of the Partnership Entities to Sanctions or (B) been subject to civil or criminal enforcement for the violation of Sanctions. The Partnership Entities will operate their businesses in a manner that is compliant with Sanctions laws and regulations from the perspective of the Partnership Entities, any director, officer or other affiliate or agent of the Partnership Entities or any of their subsidiaries and/or any person participating in the offering, whether as underwriter, advisor, investor or otherwise, and will take such actions as it may be permitted to take under law and contract as the Partnership Entities may deem necessary or appropriate to avoid violations of Sanctions laws and regulations from such various perspectives including, to the extent so necessary, the exercise of its contract rights to reject port calls in certain locations, including Iran, by its charterers. The Partnership Entities have and will maintain in place written systems, policies and procedures reasonably designed to monitor and ensure compliance with the preceding representations.

 

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(xx) None of the Navios Parties is party to any contract, agreement or understanding with any person (other than this Sales Agreement) that would give rise to a valid claim against any of the Navios Parties or the Agent for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Common Units hereunder.

(yy) No relationship, direct or indirect, exists between or among any Partnership Entity, on the one hand, and the directors, officers, members, partners, stockholders, customers or suppliers of any Partnership Entity, on the other hand, that is required to be disclosed in the Registration Statement, the General Disclosure Package and the Prospectus that is not so described.

(zz) None of the Partnership Entities have any debt securities or preferred stock that are rated by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the 1934 Act).

Any certificate signed by any officer of any of the Navios Parties delivered to the Agent or to counsel for the Agent shall be deemed a representation and warranty by such executing party to the Agent as to the matters covered thereby.

Section 2.  Sale and Delivery of Common Units .

(a) Subject to the terms and conditions set forth herein, the Partnership agrees to issue and sell through the Agent acting as sales agent or directly to the Agent acting as principal from time to time, and the Agent agrees to use its commercially reasonable efforts to sell as sales agent for the Partnership, the Common Units. Sales of the Common Units, if any, through the Agent acting as sales agent or directly to the Agent acting as principal, will be made by means of ordinary brokers’ transactions on the NYSE or otherwise at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices.

(b) The Common Units are to be sold on a daily basis or otherwise (including on a weekly or bi-weekly basis) as shall be agreed to by the Partnership and the Agent on any trading day (other than a day on which the NYSE is scheduled to close prior to its regular weekday closing time, each, a “ Trading Day ”) that the Partnership has satisfied its obligations under Section 6 of this Sales Agreement and that the Partnership has instructed the Agent to make such sales. On any Trading Day, the Partnership may instruct the Agent by telephone (in one or more telephone calls throughout such Trading Day) (confirmed promptly by telecopy or email, which confirmation will be promptly acknowledged by the Agent) as to the maximum number of Common Units to be sold by the Agent on such day or for such other longer time period as the Partnership and the Agent shall agree (in any event not in excess of the number available for issuance under the Prospectus and the currently effective Registration Statement) and the minimum price per Common Unit at which such Common Units may be sold. Subject to the terms and conditions hereof, the Agent shall use its commercially reasonable efforts to sell as sales agent all of the Common Units so designated by the Partnership. The Partnership and the Agent each acknowledge and agree that (A) there can be no assurance that the Agent will be successful in selling the Common Units, (B) the Agent will incur no liability or obligation to the Partnership or any other person or entity if it does not sell Common Units for any reason other than a failure by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Common Units as required by this Sales Agreement, and (C) the Agent shall be under no obligation to purchase Common Units on a principal basis except as otherwise specifically agreed by the Agent and the Partnership pursuant to a Terms Agreement. In the event of a conflict between the terms of this Sales Agreement and the terms of a Terms Agreement, the terms of such Terms Agreement will control.

 

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(c) Notwithstanding the foregoing, the Partnership shall not authorize the issuance and sale of, and the Agent as sales agent shall not be obligated to use its commercially reasonable efforts to sell, any Common Units (i) at a price lower than the minimum price therefor authorized from time to time, (ii) in a number or with an aggregate gross sales price in excess of the number or gross sales price, as the case may be, of Common Units authorized from time to time to be issued and sold under this Sales Agreement, in each case, by the Partnership’s board of directors, or a duly authorized committee thereof, or (iii) in a number in excess of the number of Common Units approved for listing on the NYSE, and in each case notified to the Agent in writing; provided , however , that clause (iii) of this subsection (c) shall not apply until the earlier of (x) the approval for listing of the Common Units on the NYSE or (y) three business days after the date hereof. In addition, the Partnership or the Agent may, upon notice to the other party hereto by telephone (confirmed promptly by telecopy or email, which confirmation will be promptly acknowledged), suspend the offering of the Common Units pursuant to this Sales Agreement for any reason and at any time; provided , however , that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Common Units sold hereunder prior to the giving of such notice.

(d) The gross sales price of any Common Units sold pursuant to this Sales Agreement by the Agent acting as sales agent of the Partnership shall be the market price prevailing at the time of sale for the Partnership’s Common Units sold by the Agent on the NYSE or otherwise, at prices relating to prevailing market prices or at negotiated prices. The compensation payable to the Agent for sales of Common Units shall be equal to 2.5% of the gross sales price of the Common Units sold pursuant to this Sales Agreement. The Partnership may sell Common Units to the Agent as principal at a price agreed upon at the relevant Applicable Time and pursuant to a separate Terms Agreement. The remaining proceeds, after further deduction for any transaction fees or similar fees imposed by any governmental, regulatory or self-regulatory organization in respect of such sales, and any stock or other transfer taxes and any stamp or other duties payable upon the sale, issuance or delivery of the Common Units to the Agent, shall constitute the net proceeds to the Partnership for such Common Units (the “ Net Proceeds ”). The Agent shall notify the Partnership as promptly as practicable if any deduction referenced in the preceding sentence will be required, and shall as promptly as practicable provide an itemization of such deductions. Notwithstanding the foregoing, in the event the Partnership engages the Agent for a sale of Common Units that would constitute a “distribution,” within the meaning of Rule 100 of Regulation M under the 1934 Act, the Partnership and the Agent will agree to compensation that is customary for the Agent with respect to such transactions.

(e) The Agent shall provide written confirmation to the Partnership following the close of trading on the NYSE each day in which Common Units are sold under this Sales Agreement setting forth the number of Common Units sold on such day, the aggregate gross sales proceeds of the Common Units, the aggregate Net Proceeds to the Partnership and the aggregate compensation payable by the Partnership to the Agent with respect to such sales.

(f) Under no circumstances shall the aggregate gross sales price or number, as the case may be, of Common Units sold pursuant to this Sales Agreement and any Terms Agreement exceed the aggregate gross sales price or number, as the case may be, of Common Units (i) set forth in the preamble paragraph of this Sales Agreement, (ii) available for issuance under the Prospectus and the then currently effective Registration Statement, (iii) authorized from time to time to be issued and sold under this Sales Agreement or any Terms Agreement by the Partnership’s board of directors, or a duly authorized committee thereof or (iv) approved for listing on the NYSE; provided , however , that clause (iv) of this subsection (f) shall not apply until the earlier of (x) the approval for listing of the Common Units on the NYSE or (y) three business days after the date hereof. In addition, under no circumstances shall any Common Units be sold at a price lower than the minimum price therefor authorized from time to time by the Partnership’s board of directors, or a duly authorized committee thereof, and notified to the Agent in writing.

 

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(g) Settlement for sales of Common Units pursuant to this Section 2 will occur on the third business day that is also a Trading Day following the trade date on which such sales are made, unless another date shall be agreed to by the Partnership and the Agent (each such day, a “ Settlement Date ”). On each Settlement Date, the Common Units sold through the Agent for settlement on such date shall be delivered by the Partnership to the Agent against payment of the Net Proceeds from the sale of such Common Units. Settlement for all Common Units shall be effected by book-entry delivery of Common Units to the Agent’s account at The Depository Trust Company against payments by the Agent of the Net Proceeds from the sale of such Common Units in same day funds delivered to an account designated by the Partnership. If the Partnership shall default on its obligation to deliver Common Units on any Settlement Date, the Partnership shall (i) indemnify and hold the Agent harmless against any loss, claim or damage arising from or as a result of such default by the Partnership and (ii) pay the Agent any commission to which it would otherwise be entitled absent such default. If the Agent breaches this Sales Agreement by failing to deliver the applicable Net Proceeds on any Settlement Date for Common Units delivered by the Partnership, the Agent will pay the Partnership interest based on the effective overnight federal funds rate until such proceeds, together with such interest, have been fully paid.

(h) Notwithstanding any other provision of this Sales Agreement, the Partnership shall not offer, sell or deliver, or request the offer or sale, any Common Units and, by notice to the Agent given by telephone (confirmed promptly by telecopy or email), shall cancel any instructions for the offer or sale of any Common Units, and the Agent shall not be obligated to offer or sell any Common Units, (i) during any period in which the Partnership’s insider trading policy, as it exists on the date of this Sales Agreement, would prohibit the purchase or sale of the Company’s Common Units by its officers and directors, (ii) during any other period in which the Company is, or could be deemed to be, in possession of material non-public information or (iii) except as provided in Section 2(j) below, at any time from and including the date that is the first trading day following the end of a fiscal quarter (each, a “ Fiscal Period End Date ”) through and including the time that is 24 hours after the time that the Partnership files (a “ Filing Time ”) a Report on Form 6-K with quarterly financial information (a “ Quarterly 6-K ”) or an Annual Report on Form 20-F that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by a press release containing its earnings, revenues or other results of operations (each, an “ Earnings Announcement ”).

(i) If the Partnership wishes to offer, sell or deliver Common Units at any time during the period from and including a Fiscal Period End Date through and including the time that is 24 hours after the corresponding Filing Time, the Partnership shall (i) prepare and deliver to the Agent (with a copy to counsel to the Agent) a Report on Form 6-K which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections, similar forward-looking data and officers’ quotations) (each, an “ Earnings 6-K ”), in form and substance reasonably satisfactory to the Agent, (ii) provide the Agent with the officers’ certificate, accountants’ letter and opinions and letters of counsel called for by Sections 3(j), (k) and (l) hereof, respectively, subject to further agreement between the Partnership and the Agent, (iii) afford the Agent the opportunity to conduct a due diligence review in accordance with Section 3(o) hereof and (iv) file such Earnings 6-K with the Commission, then the provisions of clause (ii) of Section 2(i) shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is 24 hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is 24 hours after the Filing Time of the relevant Quarterly 6-K or Annual Report on Form 20-F, as the case may be. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate, accountants’ letter and opinions and letters of counsel pursuant to this Section 2(j) shall not relieve the Partnership from any of its obligations under this Sales Agreement with respect to any Quarterly 6-K or Annual Report on Form 20-F, as the case may

 

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be, including, without limitation, the obligation to deliver officers’ certificates, accountants’ letters and legal opinions and letters as provided in Section 3 hereof and (B) this Section 2(j) shall in no way affect or limit the operation of the provisions of clauses (i) and (ii) of Section 2(i), which shall have independent application.

Section 3. Covenants.  The Partnership Entities, jointly and severally, agree with the Agent:

(a) During any period when the delivery of a prospectus is required in connection with the offering or sale of Common Units (whether physically or through compliance with Rule 153 or 172, or in lieu thereof, a notice referred to in Rule 173(a) under the 1933 Act), (i) to promptly notify the Agent of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and, if requested, to furnish the Agent with copies thereof, (ii) to file promptly all other material required to be filed by the Partnership with the Commission pursuant to Rule 433(d) under the 1933 Act, (iii) to file promptly all reports and any definitive proxy or information statements required to be filed by the Partnership with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act, (iv) to advise the Agent, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or other prospectus in respect of the Common Units, of any notice of objection of the Commission to the use of the form of the Registration Statement or any post-effective amendment thereto, of the suspension of the qualification of the Common Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the form of the Registration Statement or the Prospectus or for additional information, and (v) in the event of the issuance of any such stop order or of any such order preventing or suspending the use of the Prospectus in respect of the Common Units or suspending any such qualification, to promptly use its commercially reasonable efforts to obtain the withdrawal of such order; and in the event of any such issuance of a notice of objection, promptly to take such reasonable steps as may be necessary to permit offers and sales of the Common Units by the Agent, which may include, without limitation, amending the Registration Statement or filing a new registration statement, at the Partnership’s expense (references herein to the Registration Statement shall include any such amendment or new registration statement).

(b) Promptly from time to time to take such action as the Agent may reasonably request to qualify the Common Units for offering and sale under the securities laws of such United States jurisdictions as the Agent may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the sale of the Common Units, provided that in connection therewith the Partnership shall not be required to qualify as a foreign corporation or to file a general consent to service of process or subject itself or any of its subsidiaries to taxation in any jurisdiction; and to promptly advise the Agent of the receipt by the Partnership of any notification with respect to the suspension of the qualification of the Common Units for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.

(c) The Partnership will make available to the Agent, as soon as practicable after the execution of this Sales Agreement and thereafter during any period when the delivery of a prospectus is required (whether physically or through compliance with Rules 153 or 172, or in lieu thereof, a notice referred to in Rule 173(a) under the 1933 Act) in connection with the offering or sale of Common Units, copies of the most recent Prospectus in such quantities and at such locations as the Agent may reasonably request for the purposes contemplated by the 1933 Act. During any period when the delivery of a prospectus is required (whether physically or through compliance with Rules 153 or 172, or in lieu thereof, a notice referred to in Rule 173(a) under the 1933 Act) in connection with the offering or sale of Common Units, and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any

 

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material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the 1934 Act any document incorporated by reference in the Prospectus in order to comply with the 1933 Act or the 1934 Act, to notify the Agent and to file such document and to prepare and furnish without charge to the Agent as many written and electronic copies as the Agent may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance.

(d) To make generally available to its securityholders as soon as practicable, but in any event not later than sixteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the 1933 Act), an earnings statement of the Partnership and its subsidiaries (which need not be audited) complying with Section 11(a) of the 1933 Act and the rules and regulations of the Commission thereunder (including, at the option of the Partnership, Rule 158).

(e) To pay the required Commission filing fees (if not already paid) relating to the Common Units within the time required by Rule 456 under the 1933 Act.

(f) To use the Net Proceeds received by it from the sale of the Common Units pursuant to this Sales Agreement and any Terms Agreement in the manner specified in the General Disclosure Package.

(g) In connection with the offering and sale of the Common Units, the Partnership will file with the NYSE all documents and notices, and make all certifications, required by the NYSE of companies that have securities that are listed on the NYSE and will use its reasonable best efforts to maintain such listing.

(h) To not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, under the 1934 Act or otherwise, the stabilization or manipulation of the price of any securities of the Partnership to facilitate the sale or resale of the Common Units.

(i) In each Annual Report on Form 20-F or Quarterly 6-K filed by the Partnership in respect of any quarter in which sales of Common Units were made by or through the Agent under this Sales Agreement or any Terms Agreement (each date on which any such document is filed, and any date on which an amendment to any such document is filed, a “ Partnership Periodic Report Date ”), the Partnership shall set forth with regard to such quarter the number of Common Units sold through the Agent under this Sales Agreement or any Terms Agreement, the Net Proceeds received by the Partnership and the compensation paid by the Partnership to the Agent with respect to sales of Common Units pursuant to this Sales Agreement or any Terms Agreement.

(j) Upon commencement of the offering of Common Units under this Sales Agreement and promptly after each (i) date the Registration Statement or the Prospectus shall be amended or supplemented (other than (1) by an amendment or supplement providing solely for the determination of the terms of the Common Units, (2) in connection with the filing of any Reports on Form 6-K (other than an Earnings 6-K and any other Reports on Form 6-K that contain capsule financial information, financial statements, supporting schedules or other financial data) or (3) by a prospectus supplement relating to the offering of other securities (including, without limitation, other Common Units)) (each such date, a “ Registration Statement Amendment Date ”), (ii) date on which an Earnings 6-K shall be filed with the Commission as contemplated by Section 2(j) hereof (a “ Partnership Earnings Report Date ”), (iii) Partnership Periodic Report Date, (iv) promptly after each reasonable request by the Agent (each date

 

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of any such request by the Agent, a “ Request Date ”) and (v) termination of a Suspension Period if another Representation Date (as defined below) occurred during such Suspension Period (a “ Suspension Period Termination Date ”) (each of the date of the commencement of the offering of Common Units under this Sales Agreement, each such Settlement Date and each Registration Statement Amendment Date, Partnership Earnings Report Date, Partnership Periodic Report Date, Request Date and Suspension Period Termination Date is hereinafter called a “ Representation Date ”), the Partnership will furnish or cause to be furnished to the Agent (with a copy to counsel to the Agent) a certificate the date of delivery thereof to the Agent (or, in the case of an amendment or supplement to the Registration Statement or the Prospectus (including, without limitation, by the filing of any document under the 1934 Act that is incorporated by reference therein), the date of the effectiveness of such amendment to the Registration Statement or the date of filing with the Commission of such supplement or incorporated document, as the case may be), in form and substance reasonably satisfactory to the Agent and its counsel, stating (x) the number of units remaining available for sale pursuant to this Sales Agreement and (y) to the effect that the statements contained in the certificate referred to in Section 6(h) of this Sales Agreement that was last furnished to the Agent are true and correct as of the date of such certificate as though made at and as of the date of such certificate (except that such statements shall be deemed to relate to the Registration Statement, the Prospectus and the General Disclosure Package as amended and supplemented to the date of such certificate) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 6(h), but modified as necessary to relate to the Registration Statement, the Prospectus and the General Disclosure Package as amended and supplemented to the date of such certificate and to state the number of units remaining available for sale pursuant to this Sales Agreement; provided , however , that the delivery requirements of this Section 3(j) shall not be in effect during a Suspension Period. As used in this paragraph, to the extent there shall be an Applicable Time on or following the applicable Representation Date, “promptly” shall be deemed to be on or prior to the next succeeding Applicable Time.

(k) Upon commencement of the offering of Common Units under this Sales Agreement and promptly after each other Representation Date, the Partnership will furnish or cause to be furnished to the Agent (with a copy to counsel to the Agent) the written opinion and letter of each counsel to the Partnership (who shall be reasonably acceptable to the Agent), dated the date of delivery thereof to the Agent (or, in the case of an amendment or supplement to the Registration Statement or the Prospectus (including, without limitation, by the filing of any document under the 1934 Act that is incorporated by reference therein), the date of the effectiveness of such amendment to the Registration Statement or the date of filing with the Commission of such supplement or incorporated document, as the case may be), in form and substance reasonably satisfactory to the Agent and its counsel, of the same tenor as the opinions and letters referred to in Sections 6(c), (d), (e) and (f) of this Sales Agreement, but modified as necessary to relate to the Registration Statement, the Prospectus and the General Disclosure Package as amended and supplemented to the date of such opinion and letter or, in lieu of any such opinion and letter, counsel last furnishing such opinion and letter to the Agent shall furnish the Agent (with a copy to counsel for the Agent) with a letter substantially to the effect that the Agent may rely on such counsel’s last opinion and letter to the same extent as though each were dated the date of such letter authorizing reliance (except that statements in such last opinion and letter shall be deemed to relate to the Registration Statement, the Prospectus and the General Disclosure Package as amended and supplemented to the date of such letter authorizing reliance); provided , however , that the delivery requirements of this Section 3(k) shall not be in effect during a Suspension Period. As used in this paragraph, to the extent there shall be an Applicable Time on or following the applicable Representation Date, “promptly” shall be deemed to be on or prior to the next succeeding Applicable Time.

(l) Upon commencement of the offering of Common Units under this Sales Agreement and promptly after each other Representation Date, the Partnership will cause PricewaterhouseCoopers S.A., or other independent registered public accounting firm reasonably satisfactory to the Agent, to furnish to

 

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the Agent a letter, dated the date of effectiveness of such amendment or the date of filing of such supplement or other document with the Commission, as the case may be, in form reasonably satisfactory to the Agent and its counsel, of the same tenor as the letter referred to in Section 6(g) hereof, but modified as necessary to relate to the Registration Statement, the General Disclosure Package and the Prospectus, as amended and supplemented, or to the document incorporated by reference into the Prospectus, to the date of such letter; provided , however , that the delivery requirements of this Section 3(l) shall not be in effect during a Suspension Period. As used in this paragraph, to the extent there shall be an Applicable Time on or following the applicable Representation Date, “promptly” shall be deemed to be on or prior to the next succeeding Applicable Time.

(m) The Partnership consents to the Agent trading in the Partnership’s Common Units for the Agent’s own account and for the account of its clients at the same time as sales of Common Units occur pursuant to this Sales Agreement or any Terms Agreement.

(n) If, to the knowledge of the Partnership, all filings required by Rule 424 in connection with this offering shall not have been made or the representations in Section 1(a) shall not be true and correct on the applicable Settlement Date, the Partnership will offer to any person who has agreed to purchase Common Units from the Partnership as the result of an offer to purchase solicited by the Agent the right to refuse to purchase and pay for such Common Units.

(o) The Partnership will cooperate timely with any reasonable due diligence review conducted by the Agent or its counsel from time to time in connection with the transactions contemplated hereby or in any Terms Agreement, including, without limitation, and upon reasonable notice providing information and making available documents and appropriate corporate officers, during regular business hours and at the Partnership’s principal offices, as the Agent may reasonably request.

(p) Other than during a Suspension Period, the Partnership will not, without giving the Agent prior written notice no later than the Trading Day prior to the date of the proposed sale (i) specifying the nature of the proposed sale and the date of such proposed sale, in which case the Agent may suspend activity under this program if deemed appropriate by the Agent in light of the proposed sale or (ii) instructing the Agent to suspend activity under this program, (A) directly or indirectly offer, pledge, announce the intention to sell, sell, contract to sell, grant or sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, lend, transfer or establish an open “put equivalent position” within the meaning of Rule 16a-1 under the Exchange Act, or otherwise transfer or dispose of, directly or indirectly, any Common Units or securities convertible into or exchangeable or exercisable for or repayable with Common Units, or file any registration statement under the 1933 Act with respect to any of the foregoing (other than a shelf registration statement under Rule 415 under the 1933 Act, a registration statement on Form S-8 or post-effective amendment to the Registration Statement), or (B) enter into any swap or other agreement or any transaction that transfers in whole or in part, directly or indirectly, any of the economic consequence of ownership of the Common Units, or any securities convertible into or exchangeable or exercisable for or repayable with Common Units, whether any such swap or transaction described in clause (A) or (B) above is to be settled by delivery of Common Units or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (i) the Common Units to be offered and sold through the Agent pursuant to this Sales Agreement or any Terms Agreement; (ii) Common Units or other securities issued pursuant to employee benefit plans, qualified stock option plans, dividend reinvestment plans or other employee compensation plans; (iii) units issued in connection with the exchange or conversion, as applicable, of any previously issued exchangeable or convertible securities; and (iv) sales or offers in private placement transactions to, or in direct public placements to, sellers, relating to the acquisition of real property or interests therein, including mortgage or leasehold interests, or in conjunction with any joint venture transaction or other investment made to any seller of such real property or such joint venture interest or investment.

 

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(q) If immediately prior to the third anniversary (the “ Renewal Deadline ”) of the initial effective date of the Registration Statement, any of the Common Units remain unsold, the Partnership will, prior to the Renewal Deadline, if it has not already done so and is eligible to do so, file a new shelf registration statement relating to the Common Units, in a form satisfactory to the Agent, and will use its reasonable best efforts to cause such registration statement to be declared effective within 60 days after the Renewal Deadline. The Partnership will take all other action necessary or appropriate to permit the issuance and sale of the Common Units to continue as contemplated in the expired registration statement relating to the Common Units. References herein to the Registration Statement shall include such new shelf registration statement.

(r) The Partnership will promptly notify the Agent if the Partnership ceases to be an Emerging Growth Company at any time prior to the termination of this Sales Agreement.

Section 4. Free Writing Prospectus .

(a) (i) The Partnership represents and agrees that without the prior consent of the Agent, it has not made and will not make any offer relating to the Common Units that would constitute a “free writing prospectus” as defined in Rule 405 under the 1933 Act; and

(ii) the Agent represents and agrees that, without the prior consent of the Partnership it has not made and will not make any offer relating to the Common Units that would constitute a free writing prospectus required to be filed with the Commission.

(b) The Partnership has complied and will comply with the requirements of Rule 433 under the 1933 Act applicable to any Issuer Free Writing Prospectus (including any free writing prospectus identified in Section 4(a) hereof), including timely filing with the Commission or retention where required and legending.

Section 5. Payment of Expenses .

(a) The Navios Parties jointly and severally agree to pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Partnership’s counsel and accountants in connection with the registration of the Common Units under the 1933 Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, the Basic Prospectus, Prospectus Supplement, any Issuer Free Writing Prospectus and the Prospectus and amendments and supplements thereto, and the delivering of copies thereof to the Agent; (ii) costs incident to the preparation, and delivery of this Sales Agreement or any Terms Agreement, any Blue Sky (including related reasonable fees and expenses of counsel to the Agent) and Legal Investment Memoranda, closing documents (including any compilations thereof) and any other documents in connection with the offering, purchase, sale and delivery of the Common Units; (iii) all expenses in connection with the qualification of the Common Units for offering and sale under state securities laws as provided in Section 3(b) hereof, including the reasonable fees and disbursements of counsel for the Agent in connection with such qualification and in connection with the Blue Sky Surveys; (iv) any filing fees incident to, and the reasonable fees and disbursements of counsel for the Agent in connection with, any required review by FINRA of the terms of the sale of the Common Units; (v) all fees and expenses in connection with listing the Common Units on the Exchange; (vi) the cost of preparing the Common Units, any stock or other transfer taxes and any stamp or other duties payable upon the sale, issuance or delivery of the Common Units to the Agent; (vii) the costs and charges of any transfer agent or registrar or any dividend

 

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distribution agent; (viii) the fees and disbursements of the Partnership’s counsel and accountants; and (ix) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section. It is understood, however, that, except as provided in this Section, Section 7 and Section 9 hereof, the Agent will pay all of its own costs and expenses, including the fees of its counsel and any advertising expenses connected with any offers it may make.

(b) If a lesser number of Common Units having an aggregate offering price of $12,000,000 have not been offered and sold under this Sales Agreement by July 29, 2017 (or such earlier date on which the Partnership terminates this Sales Agreement), the Partnership shall reimburse the Agent for its reasonable out-of-pocket expenses, including the reasonable fees and disbursements of a single counsel for the Agent incurred by it in connection with the offering contemplated by this Sales Agreement, up to a maximum reimbursement of $150,000.

Section 6.  Conditions of Agent’s Obligation . The obligations of the Agent hereunder shall be subject, in its discretion, to the condition that all representations and warranties and other statements of the Navios Parties herein or in certificates of any officer of any Navios Entity delivered pursuant to the provisions hereof are true and correct as of the time of the execution of this Sales Agreement, the date of any executed Terms Agreement and as of each Representation Date, Applicable Time and Settlement Date, to the condition that the Navios Parties shall have performed all of their obligations hereunder theretofore to be performed, and the following additional conditions:

(a) The Prospectus Supplement shall have been filed with the Commission pursuant to Rule 424(b) under the 1933 Act on or prior to the date hereof and in accordance with Section 3(a) hereof, any other material required to be filed by the Partnership pursuant to Rule 433(d) under the 1933 Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the form of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Agent.

(b) On every date specified in Section 3(k) hereof (including, without limitation, on every Request Date), Fried, Frank, Harris, Shriver & Jacobson LLP, counsel for the Agent, shall have furnished to the Agent such written opinion or opinions, dated as of such date, with respect to such matters as the Agent may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters.

(c) On every date specified in Section 3(k) hereof (including, without limitation, on every Request Date), Thompson Hine LLP, counsel for the Navios Entities, shall have furnished to the Agent written opinion or opinions, dated as of such date, in form and substance satisfactory to the Agent.

(d) On every date specified in Section 3(k) hereof (including, without limitation, on every Request Date), Reeder & Simpson, P.C., Marshall Islands counsel for the Navios Entities, shall have furnished to the Agent written opinion or opinions, dated as of such date, in form and substance satisfactory to the Agent.

(e) On every date specified in Section 3(k) hereof requested by the Agent (including, without limitation, on every Request Date), Holman Fenwick Willan LLP, Hong Kong counsel for the Navios Entities, shall have furnished to the Agent written opinion or opinions, dated as of such date, in form and substance satisfactory to the Agent.

 

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(f) On every date specified in Section 3(k) hereof requested by the Agent (including, without limitation, on every Request Date), Maples and Calder, British Virgin Islands counsel for the Navios Entities, shall have furnished to the Agent written opinion or opinions, dated as of such date, in form and substance satisfactory to the Agent.

(g) At the dates specified in Section 3(l) hereof (including, without limitation, on every Request Date), the independent accountants of the Partnership who have certified the financial statements of the Partnership and its subsidiaries included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus shall have furnished to the Agent a letter dated as of the date of delivery thereof and addressed to the Agent in form and substance reasonably satisfactory to the Agent and its counsel, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements of the Partnership and its subsidiaries included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus.

(h) (i) Upon commencement of the offering of Common Units under this Sales Agreement and on such other dates as reasonably requested by Agent, the Partnership will furnish or cause to be furnished promptly to the Agent a certificate of an officer in a form satisfactory to the Agent stating the minimum gross sales price per unit for the sale of such Common Units pursuant to this Sales Agreement and the maximum number of Common Units that may be issued and sold pursuant to this Sales Agreement or, alternatively, maximum gross proceeds from such sales, as authorized from time to time by the Partnership’s board of directors or a duly authorized committee thereof, and the number of Common Units that have been approved for listing on the NYSE ( provided , however , that the immediately foregoing requirement shall not apply until the earlier of (x) the approval for listing of the Common Units on the NYSE, or (y) three business days after the date hereof) or, in connection with any amendment, revision or modification of such minimum price or maximum Common Unit number or amount, a new certificate with respect thereto and (ii) on each date specified in Section 3(j) (including, without limitation, on every Request Date), the Agent shall have received from the Partnership a certificate, dated as of the date thereof, of its, or its general partner’s Chief Executive Officer and Chief Financial Officer stating that, (A) there has been no Material Adverse Effect since the date as of which information is given in the Prospectus as then amended or supplemented, (B) the representations and warranties in Section 1 hereof are true and correct as of such date and (C) each Navios Entity has complied with all of the agreements entered into, to which such Navios Entity is a party, in connection with the transaction contemplated herein and satisfied all conditions on its part to be performed or satisfied.

(i) Subsequent to the effective date of this Sales Agreement, there shall not have occurred any (i) Material Adverse Effect (ii) any change or decrease specified in the bring-down letter referred to in paragraph (f) of this Section 6 which is, in the judgment of the Agent, so material and adverse as to make it impractical or inadvisable to proceed with the offering or of the Common Units as contemplated by the General Disclosure Package and the Prospectus, (iii) any downgrading, or any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any securities of the Navios Entities or any of their subsidiaries by any “nationally recognized statistical rating organization” as such term is defined for purposes of Section 3(a)(62) under the Exchange Act, or (iv) any event or development relating to or involving any of the Navios Entities, or any partner, officer, director or trustee thereof, which makes any statement of a material fact made in the Prospectus untrue or which, in the opinion of the Navios Entities and their counsel or the Agent and counsel for the Agent, requires the making of any addition to or change in the General Disclosure Package in order to state a material fact required by the

 

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1933 Act or any other law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the General Disclosure Package to reflect such event or development would, in the opinion of the Agent, adversely affect the market for the Common Units.

(j) The Partnership shall have complied with the provisions of Section 3(c) hereof with respect to the timely furnishing of prospectuses.

(k) On such dates as reasonably requested by the Agent, the Partnership shall have conducted due diligence sessions, in form and substance satisfactory to the Agent.

(l) All filings with the Commission required by Rule 424 under the 1933 Act to have been filed by each Applicable Time or related Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)).

(m) The Common Units shall have received approval for listing on the NYSE prior to the first Settlement Date.

(n) Counsel for the Agent shall have been furnished with such documents and opinions as they may reasonably require in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, contained herein or in any applicable Terms Agreement; and all proceedings taken by the Partnership in connection with the issuance and sale of the Common Units as contemplated herein or in any applicable Terms Agreement and in connection with the other transactions contemplated by this Sales Agreement or any such Terms Agreement shall be reasonably satisfactory in form and substance to the Agent and counsel for the Agent.

Section 7.  Indemnification .

(a) The Navios Entities, jointly and severally, will indemnify and hold harmless the Agent against any losses, claims, damages or liabilities, joint or several, to which the Agent may become subject, under the 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus or any amendment or supplement thereto, any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the 1933 Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, and will reimburse the Agent for any legal or other expenses reasonably incurred by the Agent in connection with investigating or defending any such action or claim as such expenses are incurred; provided , however , that none of the Navios Entities shall be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Navios Entities by the Agent expressly for use therein, which information is set forth in Exhibit A hereto.

(b) The Agent will indemnify and hold harmless each of the Navios Entities against any losses, claims, damages or liabilities to which such Navios Entity may become subject, under the 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus, or any

 

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amendment or supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus, or any such amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to such Navios Entity by the Agent expressly for use therein, which information is set forth in Exhibit A hereto; and will reimburse the Navios Entities for any legal or other expenses reasonably incurred by the Navios Entities in connection with investigating or defending any such action or claim as such expenses are incurred.

(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify such indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection except and then only to the extent such indemnifying party materially prejudiced thereby. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal or other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), but the fees and expenses of such counsel shall be at the expense of the indemnified party unless the employment of such counsel shall have been authorized in writing by the Partnership or the indemnifying party shall not have, within a reasonable period of time in light of the circumstances, employed counsel reasonably satisfactory to the Agent to have charge of the defense of such proceeding or such indemnified party shall have reasonably concluded that there may be defenses available to it which are in conflict with or in addition to those available to the Partnership (in which case the Partnership shall not have the right to direct the defense of such proceeding on behalf of the indemnified parties), in any of which events such fees and expenses shall be borne by the indemnifying party (it being understood, however, that the indemnifying party shall not be liable for the fees or expenses of more than one separate counsel in any one proceeding or series of related proceedings in the same jurisdiction representing the indemnified parties who are parties to such proceeding. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include any statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.

(d) If the indemnification provided for in this Section 7 is unavailable to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities

 

24


(or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Navios Entities on the one hand and the Agent on the other from the offering of the Common Units to which such loss, claim, damage or liability (or action in respect thereof) relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Navios Entities on the one hand and the Agent on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Navios Entities on the one hand and the Agent on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Navios Entities bear to the total commissions received by the Agent. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Navios Entities on the one hand or the Agent on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Navios Entities and the Agent agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), the Agent shall not be required to contribute any amount in excess of the amount by which the total price at which the Common Units sold by it to the public were offered to the public exceeds the amount of any damages which the Agent has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The indemnifying party shall not be required to indemnify the indemnified party for any amount paid or payable by the indemnified party in the settlement of any action, proceeding or investigation without the written consent of the indemnifying party, which consent shall not be unreasonably withheld, but if settled with such consent, the indemnifying party agrees to indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by this Section 7, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement.

(e) The obligations of the Navios Entities under this Section 7 shall be in addition to any liability which the Navios Entities may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls the Agent within the meaning of the 1933 Act; and the obligations of the Agent under this Section 7 shall be in addition to any liability which the Agent may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Navios Entities and to each person, if any, who controls the Navios Entities within the meaning of the 1933 Act.

Section 8.  Representations, Warranties and Agreements to Survive Delivery . The respective indemnities, agreements, representations, warranties and other statements of the Partnership and the Agent, as set forth in this Sales Agreement or made by or on behalf of them, respectively, pursuant to this

 

25


Sales Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of the Agent or any controlling person of the Agent, or the Partnership, or any officer or director or controlling person of the Partnership, and shall survive delivery of and payment for the Common Units.

Section 9.  No Advisory or Fiduciary Relationship . The Partnership acknowledges and agrees that (i) the Agent is acting solely in the capacity of an arm’s length contractual counterparty to the Partnership with respect to the offering of Common Units contemplated hereby (including in connection with determining the terms of such offering) and (ii) the Agent has not assumed an advisory or fiduciary responsibility in favor of the Partnership with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether the Agent has advised or is currently advising the Partnership on other matters) or any other obligation to the Partnership except the obligations expressly set forth in this Sales Agreement and (iii) the Partnership has consulted its own legal and financial advisors to the extent it deemed appropriate. The Partnership agrees that it will not claim that the Agent has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Partnership, in connection with such transaction or the process leading thereto.

Section 10. Termination .

(a) The Partnership shall have the right, by giving written notice as hereinafter specified, to terminate this Sales Agreement in its sole discretion at any time. Any such termination shall be without liability of any party to any other party, except that (i) with respect to any pending sale through the Agent for the Partnership or with respect to any pending sale to the Agent pursuant to a Terms Agreement or any offering or resale of any Common Units purchased or to be purchased by the Agent pursuant to a Terms Agreement, the obligations of the Partnership, including in respect of compensation of the Agent, shall remain in full force and effect notwithstanding such termination; and (ii) the provisions of Section 1, Section 5(b), Section 7 and Section 8 of this Sales Agreement shall remain in full force and effect notwithstanding such termination.

(b) The Agent shall have the right, by giving written notice as hereinafter specified, to terminate this Sales Agreement in its sole discretion at any time. Any such termination shall be without liability of any party to any other party, except that the provisions of Section 1, Section 5(b), Section 7 and Section 8 of this Sales Agreement shall remain in full force and effect notwithstanding such termination.

(c) This Sales Agreement shall remain in full force and effect until and unless terminated pursuant to Section 10(a) or (b) above or otherwise by mutual agreement of the parties; provided that any such termination by mutual agreement or pursuant to this clause (c) shall in all cases be deemed to provide that Section 1, Section 5(b), Section 7 and Section 8 of this Sales Agreement shall remain in full force and effect.

(d) Any termination of this Sales Agreement shall be effective on the date specified in such notice of termination; provided that such termination shall not be effective until the close of business on the date of receipt of such notice by the Agent or the Partnership, as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Common Units, such sale shall settle in accordance with the provisions of Section 2(h) hereof.

(e) In the case of any purchase by the Agent pursuant to a Terms Agreement, the Agent may terminate such purchase, at any time at or prior to the Settlement Date (i) if there has been, since the time of execution of the Sales Agreement or since the respective dates as of which information is given in the Prospectus or General Disclosure Package, any material adverse change in the condition, financial or

 

26


otherwise, or in the earnings, business affairs or business prospects of the Partnership and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, or (ii) if there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Agent, impracticable or inadvisable to market the Common Units or to enforce contracts for the sale of Common Units, or (iii) if trading in any securities of the Partnership has been suspended or materially limited by the Commission of the NYSE, or if trading generally on the NYSE or the Nasdaq Stock Market has been suspended or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by such system or by order of the Commission, FINRA or any other governmental authority, or (iv) a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, or (v) if a banking moratorium has been declared by either Federal of New York authorities.

Section 11.  Notices . All statements, requests, notices and agreements hereunder shall be in writing, and if to the Agent shall be delivered or sent by mail, telex or facsimile transmission to:

S. Goldman Capital LLC

825 Third Avenue, 34th Floor

New York, New York 10022

Facsimile: +1.212.4045745

Attention: Gerry Jaeger

and if to the Partnership to:

Navios Maritime Midstream Partners L.P.

85 Akti Miaouli Street

Piraeus, Greece 185 38

Attention: Vasiliki Papaefthymiou

Any such statements, requests, notices or agreements shall take effect upon receipt thereof.

Section 12.  Parties . This Sales Agreement shall be binding upon, and inure solely to the benefit of, the Agent and the Partnership and, to the extent provided in Sections 7 and 8 hereof, the officers and directors of the Partnership and the Agent and each person who controls the Partnership or the Agent, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Sales Agreement. No purchaser of Common Units through the Agent shall be deemed a successor or assign by reason merely of such purchase.

Section 13.  Time of the Essence . Time shall be of the essence of this Sales Agreement. As used herein, the term “business day” shall mean any day when the Commission’s office in Washington, D.C. is open for business.

Section 14.  Trial by Jury . Each Navios Entity (on its behalf and, to the extent permitted by applicable law, on behalf of its equityholders and affiliates) and the Agent hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Sales Agreement or the transactions contemplated hereby.

Section 15. Consent to Jurisdiction; Waiver of Immunity . Any legal suit, action or proceeding arising out of or based upon this Sales Agreement or the transactions contemplated hereby

 

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(“ Related Proceedings ”) shall be instituted in (i) the federal courts of the United States of America located in the City and County of New York, Borough of Manhattan or (ii) the courts of the State of New York located in the City and County of New York, Borough of Manhattan (collectively, the “ Specified Courts ”), and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any such court (a “ Related Judgment ”), as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in any such court has been brought in an inconvenient forum. Each party not located in the United States irrevocably appoints CT Corporation System as its agent to receive service of process or other legal summons for purposes of any such suit, action or proceeding that may be instituted in any state or federal court in the City and County of New York. With respect to any Related Proceeding, each party irrevocably waives, to the fullest extent permitted by applicable law, all immunity (whether on the basis of sovereignty or otherwise) from jurisdiction, service of process, attachment (both before and after judgment) and execution to which it might otherwise be entitled in the Specified Courts, and with respect to any Related Judgment, each party waives any such immunity in the Specified Courts or any other court of competent jurisdiction, and will not raise or claim or cause to be pleaded any such immunity at or in respect of any such Related Proceeding or Related Judgment, including, without limitation, any immunity pursuant to the United States Foreign Sovereign Immunities Act of 1976, as amended.

Section 16.  Governing Law . THIS SALES AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS PRINCIPLES OF CONFLICTS OF LAW.

Section 17.  Counterparts . This Sales Agreement and any Terms Agreement may be executed by any one or more of the parties hereto and thereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument. This Sales Agreement and any Terms Agreement may be delivered by any party by facsimile or other electronic transmission.

Section 18.  Severability . The invalidity or unenforceability of any Section, paragraph or provision of this Sales Agreement or any Terms Agreement shall not affect the validity or enforceability of any other Section, paragraph or provision hereof or thereof, or any Section, paragraph or provision thereof, as the case may be. If any Section, paragraph or provision of this Sales Agreement or any Terms Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.

Section 19.  Headings . The headings herein are inserted for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Sales Agreement.

Section 20. USA Patriot Act . In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Agent is required to obtain, verify and record information that identifies its clients, including the Partnership, which information may include the name and address of its clients, as well as other information that will allow the Agent to properly identify its clients.

Section 21. Tax Disclosure. Notwithstanding any other provision of this Sales Agreement, immediately upon commencement of discussions with respect to the transactions contemplated hereby,

 

28


the Partnership (and each employee, representative or other agent of the Partnership) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the transactions contemplated hereby and all materials of any kind (including opinions or other tax analyses) that are provided to the Partnership relating to such tax treatment and tax structure. For purposes of the foregoing, the term “tax treatment” is the purported or claimed federal income tax treatment of the transactions contemplated hereby, and the term “tax structure” includes any fact that may be relevant to understanding the purported or claimed federal income tax treatment of the transactions contemplated hereby.

[SIGNATURES APPEAR ON FOLLOWING PAGES]

 

29


If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Navios Parties a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the Agent and the Navios Parties in accordance with its terms.

 

Very truly yours,
NAVIOS MARITIME MIDSTREAM PARTNERS L.P.
By:  

/s/ Vasiliki Papaefthymiou

  Name:  Vasiliki Papaefthymiou
  Title:    Executive Vice President, Legal
NAVIOS MARITIME MIDSTREAM PARTNERS GP LLC
By:   Navios Maritime Acquisition Corporation, its sole member
By:  

/s/ Vasiliki Papaefthymiou

  Name:  Vasiliki Papaefthymiou
  Title:    Executive Vice President, Legal
NAVIOS MARITIME ACQUISTION CORPORATION
By:  

/s/ Vasiliki Papaefthymiou

  Name:  Vasiliki Papaefthymiou
  Title:
NAVIOS MARITIME MIDSTREAM OPERATING LLC
By:  

/s/ Vasiliki Papaefthymiou

  Name:  Vasiliki Papaefthymiou
  Title:    Executive Vice President, Legal


Accepted as of the date hereof:
S. GOLDMAN CAPITAL LLC
By:  

/s/ Sheldon M. Goldman

  Name:   Sheldon M. Goldman
  Title:  


SCHEDULE A

Operating Subsidiaries

 

Vessel

  

Operating Subsidiary

  

Country of Incorporation

Shinyo Ocean    Shinyo Ocean Limited    Hong Kong
Shinyo Kannika    Shinyo Kannika Limited    Hong Kong
Shinyo Saowalak    Shinyo Saowalak Limited    British Virgin Islands
Shinyo Kieran    Shinyo Kieran Limited    British Virgin Islands
C. Dream    Shinyo Dream Limited    Hong Kong
Nave Celeste    Shinyo Navigator Limited    Hong Kong


SCHEDULE B

Other Agreements

Time Charter Party, entered into on August 28, 2006, by and between Shinyo Kannika Ltd. and Dalian Ocean Shipping Co., as amended by Addendum Nos. 1–3, each dated March 12, 2007; Addendum No. 4, dated December 12, 2007; Addendum No. 5, dated January 16, 2008; Addendum No. 6, dated December 28, 2009; Addendum No. 7, dated September 1, 2010; Addendum No. 8, dated September 28, 2010; and Addendum No. 9, dated March 23, 2012.

Time Charter Party, entered into on December 28, 2006, by and between Shinyo Ocean Limited and Formosa Petrochemical Corporation.

Time Charter Party, entered into on June 18, 2008, by and between Shinyo Kieran Limited and Dalian Ocean Shipping Co., as amended by Addendum No. 1, dated January 28, 2010; Addendum No. 2, dated September 1, 2010; Addendum No. 3, dated June 17, 2011; Addendum No. 4, dated May 24, 2013; Addendum No. 5, dated December 19, 2013; and Addendum No. 6, dated May 14, 2014.

Time Charter Party, entered into on June 18, 2008, by and between Shinyo Saowalak Limited and Dalian Ocean Shipping Co., as amended by Addendum No. 1, dated January 28, 2010; Addendum No. 2, dated April 21, 2010; and Addendum No. 3, dated September 1, 2010.

Time Charter Party, entered into on June 13, 2007, by and between Shinyo Dream Limited and SK Shipping Company Limited, as amended by Addendum No. 1, dated April 21, 2009.

Time Charter Party, entered into on September 9, 2006, by and between Shinyo Navigator Limited and Dalian Ocean Shipping Co., as amended by Addendum No. 1, dated April 13, 2007; Addendum No. 2, dated May 23, 2007; Addendum No. 3, dated December 12, 2007; Addendum No. 4, dated January 16, 2008; Addendum No. 5, dated August 18, 2008; Addendum No. 6, dated December 22, 2008; Addendum No. 7, dated September 1, 2010; Addendum No. 8, dated September 28, 2010; Addendum No. 9, dated March 23, 2012; and Addendum No. 10, by and between Shinyo Navigator Limited, Dalian Ocean Shipping Co. and Sikinos Shipping Corporation, dated August 21, 2013.


EXHIBIT A

The following information appearing in the General Disclosure Package and the Prospectus has been furnished by the Agent expressly for use in the preparation of the Prospectus:

 

    The name of the Agent.

The Agent confirms and the Navios Parties acknowledge and agree that the information set forth above constitutes the only information furnished in writing to the Partnership by the Agent specifically for inclusion in the Registration Statement, the Basic Prospectus, the Prospectus Supplement, any Issuer Free Writing Prospectus and the Prospectus.


Annex 1

NAVIOS MARITIME MIDSTREAM PARTNERS L.P.

Common Units representing limited partner interests

TERMS AGREEMENT

S. Goldman Capital LLC

825 Third Avenue, 34th Floor

New York, New York 10022

Ladies and Gentlemen:

Navios Maritime Midstream Partners L.P., a Marshall Islands limited partnership (the “ Partnership ”), proposes, subject to the terms and conditions stated herein and in the Continuous Offering Program Sales Agreement, dated July 29, 2016 (the “ Sales Agreement ”), between the Navios Parties (as defined therein) and S. Goldman Capital LLC (the “Agent”), to issue and sell to the Agent the securities specified in the Schedule hereto (the “ Purchased Securities ”). Capitalized terms used herein and not defined have the respective meanings ascribed thereto in the Sales Agreement.

Each of the provisions of the Sales Agreement not specifically related to the solicitation by the Agent, as agent of the Partnership, of offers to purchase securities is incorporated herein by reference in its entirety, and shall be deemed to be part of this Terms Agreement to the same extent as if such provisions had been set forth in full herein. Each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Terms Agreement and the Applicable Time, except that each representation and warranty in Section 1 of the Sales Agreement which makes reference to the Prospectus (as therein defined) shall be deemed to be a representation and warranty as of the date of the Sales Agreement in relation to the Prospectus, and also a representation and warranty as of the date of this Terms Agreement and the Settlement Date in relation to the Prospectus as amended and supplemented to relate to the Purchased Securities.

Subject to the terms and conditions set forth herein and in the Sales Agreement which are incorporated herein by reference, the Partnership agrees to issue and sell to the Agent and the latter agrees to purchase from the Partnership the number of units of the Purchased Securities at the time and place and at the purchase price set forth in the Schedule hereto.

If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Partnership a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the Agent and the Partnership in accordance with its terms.

THIS TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


Very truly yours,
NAVIOS MARITIME MIDSTREAM PARTNERS L.P.
By:  

 

  Name:
  Title:
NAVIOS MARITIME MIDSTREAM PARTNERS GP LLC
By:   Navios Maritime Acquisition Corporation, its sole member
By:  

 

  Name:
  Title:
NAVIOS MARITIME ACQUISTION CORPORATION
By:  

 

  Name:
  Title:
NAVIOS MARITIME MIDSTREAM OPERATING LLC
By:  

 

  Name:
  Title:


Accepted as of the date hereof:
S. GOLDMAN CAPITAL LLC
By:  

 

  Name:
  Title:


Schedule to Terms Agreement

Title of Purchased Securities [and Additional Securities]:

Common units representing limited partnership interests

Number of Units of Purchase Securities:

[    ]

[Number of Units of Additional Securities:]

[    ]

[Price to Public]:

[    ]

Purchase Price by Agent:

[    ]

Method of Specified Funds for Payment of Purchase Price:

[By wire transfer to a bank account specified by the Company in same day funds.]

Method of Delivery:

[To the Agent’s account, or the account of the Agent’s designee; at The Depository Trust Company via DWAC in return for payment of the Purchase Price.]

Settlement Date:

[            ], 20[    ]

Closing Location:

[    ]

[Lockup:]

[    ]

Exhibit 5.1

REEDER & SIMPSON P.C.

Attorneys-at-Law

 

RRE Commercial Center

P.O. Box 601

Majuro, MH 96960, Marshall Islands

Telephone: +692 625 3602

Fax: +692 625 3603

E-mail: dreeder@ntamar.net

  

Raymond E. Simpson

53-55 Akti Miaouli, 6th floor

185 36 Piraeus, Greece

Telephone: +30 210 429 3323

Fax: +30 210 429 3309

E-mail: r.simpson@simpson.gr

Mobile phone: +357 9775 0455

July 29, 2016

Navios Maritime Partners L.P.

Attention: Angeliki Frangou

7 Avenue de Grande Bretagne, Office 11B2

Monte Carlo, MC 98000 Monaco

 

Re: Navios Maritime Midstream Partners L.P. (the “ Partnership ”)

Ladies and Gentlemen:

We are licensed to practice law in the Republic of the Marshall Islands (the “ RMI ”) and are members in good standing of the Bar of the RMI. We are acting as legal counsel in the RMI to the Partnership in connection with (i) the Partnership’s public offering from time to time of up to $25,000,000 of its common units representing limited partnership interests (the “ Securities ”), (ii) the Continuous Offering Program Sales Agreement dated July 28, 2016 (the “ Sales Agreement ”) between the Partnership, Navios Maritime Midstream Partners GP LLC, a Marshall Islands limited liability company, Navios Maritime Midstream Operating LLC, a Marshall Islands limited liability company, Navios Maritime Acquisition Corporation, a Marshall Islands corporation, and S. Goldman Advisors LLC (the “ Agent ”) and (iii) the registration statement (File No. 333-208623), including the prospectus of the Partnership dated January 4, 2016 as supplemented by a prospectus supplement, dated July 29, 2016 (collectively, the “ Prospectus ”), with respect to the offering of the Securities (as amended, the “ Registration Statement ”).

This opinion has been prepared for use in connection with the filing by the Partnership of a Current Report on Form 6-K, to be filed on the date hereof, which will be incorporated by reference into the Registration Statement and Prospectus.

In connection with this opinion, we have examined such documents as may be required to issue this opinion including the Partnership’s operational documentation and certain resolutions adopted by the Partnership’s Board of Directors relating to the offering of the Securities and such other documents or records of the proceedings of the Partnership as we have deemed relevant, and the Registration Statement and the exhibits thereto.

In our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, photostatic or facsimile copies and the authenticity of the originals of such copies.


Based upon the foregoing, we are of the opinion that the Securities are duly authorized and, when issued and delivered to and paid for by the Agent in accordance with the terms of the Sales Agreement, will be validly issued, fully paid and non-assessable.

Our opinion is limited to the Limited Partnership laws of the Republic of the Marshall Islands, and we express no opinion with respect to the laws of any other jurisdiction. To the extent that any applicable document is stated to be governed by the laws of another jurisdiction, we have assumed for purposes of this opinion that the laws of such jurisdiction are identical to the laws of the Republic of the Marshall Islands.

We have relied as to certain matters on information obtained from public officials, officers of the Partnership, and other sources believed by us to be responsible.

Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters. This opinion is based upon currently existing statutes, rules, regulations and judicial decisions, and we disclaim any obligation to advise you of any change in any of these sources of law or subsequent legal or factual developments which might affect any matters or opinions set forth herein.

We hereby consent to the filing of this opinion as Exhibit 5.1 to the above described Current Report on Form 6-K and its incorporation by reference into the Registration Statement, and to the reference to this firm under the caption “Legal Matters” in the Prospectus. In giving this consent, we do not admit that we are acting within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended.

 

Very truly yours,

Reeder & Simpson P.C.

By:

  /s/ Raymond E. Simpson