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THIRD SUPPLEMENTAL INDENTURE OF TRUST
AND SECURITY AGREEMENT
Dated as of December 1, 1999
From
MARITRANS OPERATING PARTNERS L.P.
and
MARITRANS CAPITAL CORPORATION
To
WILMINGTON TRUST COMPANY,
as Trustee
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EXHIBIT A
(to Waiver and Agreement)
TABLE OF CONTENTS
SECTION HEADING PAGE
Parties...........................................................................................................1
Recitals..........................................................................................................1
SECTION 1. WAIVER.................................................................................1
SECTION 2. AMENDMENTS TO INDENTURE................................................................2
Section 2.1. Amendments to Section 4.5..............................................................2
Section 2.2. Amendments to Section 4.10.............................................................2
Section 2.3. Amendments to Section 6.3..............................................................2
Section 2.4. Amendments to Section 6.4..............................................................3
Section 2.5. Amendment to Section 4.14..............................................................6
SECTION 3. MISCELLANEOUS PROVISIONS...............................................................7
Section 3.1. Defined Terms..........................................................................7
Section 3.2. Ratification of Indenture..............................................................7
Section 3.3. Counterparts...........................................................................7
Section 3.4. References to Indenture................................................................7
Signature Page....................................................................................................8
ATTACHMENT TO THIRD SUPPLEMENTAL INDENTURE OF TRUST AND SECURITY AGREEMENT:
SCHEDULE I -- Proposed Vessel Sales
THIRD SUPPLEMENTAL INDENTURE OF TRUST AND SECURITY AGREEMENT
THIRD SUPPLEMENTAL INDENTURE OF TRUST AND SECURITY AGREEMENT (this
"Third Supplement") dated as of December 1, 1999, among MARITRANS OPERATING
PARTNERS L.P., a Delaware limited partnership (the "Partnership"), MARITRANS
CAPITAL CORPORATION, a Delaware corporation (the "Company"), and WILMINGTON
TRUST COMPANY, a Delaware banking corporation, as trustee (the "Trustee") for
the holders of the Notes (the "Holders") which Notes were issued under the
Indenture defined below.
RECITALS:
A. The Partnership, the Company and the Trustee have heretofore
executed and delivered the Indenture of Trust and Security Agreement dated as of
March 15, 1987 (as heretofore amended and supplemented by a First Supplemental
Indenture of Trust and Security Agreement dated as of August 15, 1989, a Second
Supplemental Indenture of Trust and Security Agreement dated as of April 1,
1996, and as further amended and supplemented, the "Indenture") providing for
the issuance of certain secured promissory notes of the Company and pursuant
thereto the Company has issued (i) $35,000,000 aggregate principal amount of its
Series A Notes due April 1, 1997, all of which are retired, (ii) $80,000,000
aggregate principal amount of its Series B Notes due April 1, 2007, $52,000,000
of which are currently outstanding and (iii) $20,000,000 aggregate principal
amount of its Series C Notes due June 30, 1995, all of which are retired (the
outstanding Series B Notes are herein collectively referred to as the "Notes");
B. The Company and the Partnership have entered into agreements for
the sale of a number of the Vessels (as defined in the Indenture) to one or more
third party purchasers which sales, in the aggregate, are not currently
permitted under the Indenture and are conditioned upon obtaining the consent
thereto of the requisite percentage of the holders of the Notes; and
C. Pursuant to Section 10.2 of the Indenture, the Partnership, the
Company and the holders of at least 66-2/3% in aggregate principal amount of the
Notes have agreed to waive the provisions of the Indenture which would not
permit the Vessel sales referred to in paragraph B above and to further amend
the Indenture, all in the manner as set forth below.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, receipt of which upon delivery of this Third Supplement
the undersigned hereby acknowledge, the Partnership, the Company and the Trustee
hereby agree as follows:
SECTION 1. WAIVER.
In consideration of the conditions precedent and the amendments to the
Indenture set forth below, the requirement in Section 4.5 of the Indenture which
limits sales of assets is hereby waived in order to permit the Proposed Vessel
Sales during the Waiver Period. As used herein (i) the term "Proposed Vessel
Sales" shall mean the sale by the Partnership to one or more third parties of
(A) any or all of the fifteen (15) barges of the Partnership which are described
on Schedule I hereto and (B) any or all of the eleven (11) tugboats of the
Partnership which are also described on Schedule I for an aggregate purchase
price of approximately $48,000,000, provided, that if any consideration received
for any such Vessel sale is in the form of an obligation of the buyer of such
Vessel, (A) each such obligation shall be secured by a perfected Second
Preferred Ship Mortgage on such Vessel (all such obligations being the "Waiver
Obligations") and (B) the aggregate principal amount of all Waiver Obligations
received for the Proposed Vessel Sales shall not exceed $9,000,000, and (ii) the
term "Waiver Period" means the period beginning on December 1, 1999 and ending
on and including March 31, 2000.
SECTION 2. AMENDMENTS TO INDENTURE.
Section 2.1. Amendments to Section 4.5. Section 4.5 of the Indenture is
amended and restated in its entirety to read as follows:
4.5. Merger, Consolidation, Sale of Assets. The Partnership
will not, and will not permit any Subsidiary, to consolidate with or
merge into any other Person other than the Partnership or another
Subsidiary or permit any other Person to consolidate with or merge into
the Partnership or any of its Subsidiaries or sell, lease or otherwise
dispose of all or any substantial part of the assets of the Partnership
and its Subsidiaries, except a sale, lease or other disposition from a
Subsidiary to the Partnership. As used in this Section 4.5, a sale,
lease or other disposition of assets shall be deemed to be a
"substantial part" of the assets of the Partnership and its
Subsidiaries only if the book value of such assets when added to the
book value of all other assets sold, leased or otherwise disposed of by
the Partnership and its Subsidiaries (other than in the ordinary course
of business) during the immediately preceding period of twelve calendar
months exceeds 10% of Consolidated Net Tangible Assets determined as of
the end of the immediately preceding fiscal quarter of the Partnership;
provided, however, that (i) any sales during the Waiver Period of
Vessels which are included in the Proposed Vessel Sales shall not be
deemed to be assets sold, leased or otherwise disposed of for purposes
of the computations required by the foregoing provisions of this
Section 4.5 and (ii) for any other sale, lease or disposition of assets
subject to the foregoing limitations of this Section 4.5 which occur
during the period beginning on December 1, 1999 and ending on and
including the first anniversary of the last day of the Waiver Period,
the limitation with respect thereto in this sentence which reads "10%
of Consolidated Net Tangible Assets" shall be amended to read "3% of
Consolidated Net Tangible Assets". Sales or other realization on
delinquent receivables shall not be included in any computation of
sales or other dispositions hereunder.
Section 2.2. Amendments to Section 4.10. Paragraph (g) of Section 4.10
is redesignated as paragraph (h), the "and" at the end of paragraph (f) is
hereby deleted and a new paragraph (g) is added after paragraph (f) which reads
as follows:
(g) Waiver Obligations received from the Proposed Vessel
Sales; and
Section 2.3. Amendments to Section 6.3. Section 6.3 of the Indenture is
amended and restated in its entirety to read as follows:
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Section 6.3. Sale and Release of Mortgaged Property. At any time so
long as the Partnership shall be in compliance with Section 4.5 hereof and no
Default or Event of Default has occurred which is then continuing, the
Partnership:
(a) may sell during the Waiver Period any of the Vessels
which are included in the Proposed Vessel Sales provided that the
proceeds from any such sales including any documents evidencing the
Waiver Obligations and payments required thereunder (collectively,
"Sale Waiver Proceeds") shall be deposited with the Trustee to be held
and administered pursuant to the provisions of Section 6.4, and
(b) may sell property which constitutes Mortgaged Property
other than Proposed Vessel Sales described in clause (a) of this
Section 6.3 (a "Mortgaged Property Sale") provided that either (i)
concurrently with the sale of such property Substitute Collateral
having an appraised value equal to or greater than the property sold
shall be added by the Partnership to Mortgaged Property pursuant to the
provisions of Section 6.5 hereof, or (ii) if the proceeds of sale
received from a Mortgaged Property Sale exceed the appraised value of
the Substitute Collateral, if any, added to Mortgaged Property by the
Partnership concurrently with the sale of such property pursuant to the
provisions of Section 6.5 hereof, then the Partnership shall deposit
cash with the Trustee in the amount of such excess (the amount of such
excess for each such Mortgaged Property Sale being referred to as
"Unreplaced Sale Proceeds") to be held and administered by the Trustee
pursuant to the provisions of Section 6.4 hereof; provided, that
concurrently with or prior to any such Mortgaged Property Sale, the
Partnership shall deliver to the Trustee an Officers' Certificate
stating: (i) the amount of cash to be received by the Partnership from
the sale of such property, (ii) that the amount of the proceeds of sale
is equal to or greater than the fair value of such property as
determined pursuant to a resolution of the Board of Directors of the
Partnership, (iii) a detailed description of such property, (iv) that
such sale is desirable in the proper conduct of the business of the
Partnership and will not have a material adverse effect upon such
business and (v) whether any Substitute Collateral will be added to
Mortgaged Property in connection with Mortgaged Property Sale and, if
so, a detailed description thereof and the appraised value thereof.
Section 2.4. Amendments to Section 6.4. Section 6.4 of the Indenture is
amended and restated in its entirety to read as follows:
Section 6.4. Proceeds of Losses and Sale of Mortgaged
Property. (a) Upon receipt by the Trustee of any Unreplaced Loss
Proceeds, Sale Waiver Proceeds or Unreplaced Sale Proceeds (any such
Proceeds so received being sometimes hereinafter referred to as
"Unreplaced Proceeds"), the Trustee shall (1) apply the cash received
as Unreplaced Proceeds to the purchase of Liquid Collateral or for the
purposes hereinafter set forth and (2) collect from any Waiver
Obligations received as Unreplaced Proceeds, all cash amounts as they
become due thereunder and apply collections therefrom to the purchase
of Liquid Collateral or for the purposes hereinafter set forth. The
Trustee shall release the funds deposited and collected pursuant to
this Section 6.4 (collectively, the "Unreplaced Proceeds Funds") for
any of the following purposes as shall be directed by the Company:
(i) to make tax payments of the Company permitted by
Section 6.4(b);
(ii) for the purposes of improving or adding to
Mortgaged Property described in Section 6.4(c); or
(iii) to pay regularly scheduled payments of principal
on the Notes when due or payments of principal becoming due as a
result of a special prepayment or an optional prepayment and any
Yield-Maintenance Premium which may become due in connection with
any such payment or prepayment;
provided, however, that (x) payments for the purposes described in
clause (iii) above of this Section 6.4(a) may only be made from Sale
Waiver Proceeds (including cash collections from Waiver Obligations)
and (y) not less than ten (10) Business Days prior to the release of
any Unreplaced Proceeds Funds, the Partnership shall deliver an
Officers' Certificate to each holder of the Notes containing (1) a
detailed description of the payments which will be made and supporting
calculations, if any, of the payments to be so made by the Trustee and
(2) the amount of the Unreplaced Proceeds Funds remaining after giving
effect to such release, and provided further that no funds released
pursuant to the foregoing provisions of this paragraph shall, for
purposes of determining Net Cash Available to Partners, be deemed to be
under clause (2)(b) of the definition thereof "cash proceeds from the
sale or other disposition of capital assets of the Partnership which
are paid to the Partnership . . . and are not otherwise required to be
held by the Trustee hereunder . . . ."
(b) If as a result of a sale on or after December 1, 1999
of one or more Vessels constituting Mortgaged Property (including any
Proposed Vessel Sales), the Partnership shall incur additional Federal
and/or state income taxes or estimated taxes with respect to any such
sale, the Partnership shall have the right to withdraw during the
period beginning on the date of such sale and ending on and including
the last day of the fiscal year next following the fiscal year in which
such sale occurs (the "Withdrawal Period"), an amount to pay such taxes
computed as hereinafter described; provided, that the aggregate amount
withdrawn under this Section 6.4(b) shall not exceed the sum of:
(i) $7,500,000;
(ii) the product of $1,000,000 multiplied by a whole
number equal to the number of April 1 dates which have
occurred during the period beginning December 1, 1999 and
ending on the date the proposed withdrawal shall be made;
and
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(iii) an amount equal to 50% of the aggregate amount
of cash collections received by the Trustee from Waiver
Obligations during the period beginning December 1, 1999
and ending on the date the proposed withdrawal shall be
made.
At any time during the Withdrawal Period for the sale of
one or more Vessels, the Partnership, subject to the withdrawal
limitations in the preceding paragraph, may withdraw amounts to pay
estimated taxes of the Partnership for the fiscal year in which the
sale occurs or to pay income taxes for such fiscal year as follows:
(i) in the case of estimated taxes, the amount subject
to being withdrawn shall equal the excess, if any, of (A)
the estimated Federal and state income taxes for the
Partnership for any fiscal period including the fiscal
quarter in which such sale occurs determined by including
therein the sale of Vessels constituting Mortgaged
Property which were sold during such fiscal period, over
(B) the estimated federal and state income taxes for the
Partnership for such fiscal period determined by excluding
the sale of all Vessels constituting Mortgaged Property
sold during such fiscal period, and
(ii) in the case of taxes for the fiscal year in which
the sale occurs, the amount subject to being withdrawn
shall equal the excess, if any, of (A) the Federal and
state income taxes for the Partnership for such fiscal
year including therein the sale of all Vessels
constituting Mortgaged Property which were sold during
such fiscal year, over (B) the federal and state income
taxes for the Partnership for such fiscal year determined
by excluding the sale of all Vessels constituting
Mortgaged Property which were sold during such period;
provided, that (x) any calculation of an amount which is withdrawable
to pay income taxes for a fiscal year shall be reduced by any amounts
previously withdrawn for income taxes for such fiscal year and for
estimated taxes with respect to income taxes for such fiscal year, and
(y) if any amounts are withdrawn to pay estimated taxes with respect to
a fiscal year, the Partnership shall, prior to the end of the
applicable Withdrawal Period, calculate the aggregate amount
withdrawable for such fiscal year under clause (ii) of this paragraph
(the "Clause (ii) Amount") and redeposit with the Trustee as Unreplaced
Proceeds Funds the amount, if any, by which the amounts so withdrawn
exceeded the Clause (ii) Amount.
(c) The Trustee shall release Unreplaced Proceeds Funds as
follows: (x) upon delivery to the Trustee by the Partnership of
Substitute Collateral pursuant to the provisions of Section 6.5 hereof,
the Trustee shall release such Unreplaced Proceeds Funds in an amount
equal to the appraised value of such Substitute Collateral or (y) the
Trustee shall release such Unreplaced Proceeds Funds in payment of or
to reimburse the Partnership for repairs or improvements to Mortgaged
Property made after such deposit provided that prior to the release of
the proceeds for such repairs or improvements the Partnership shall
deliver an Officers' Certificate to the Trustee (i) containing a
detailed description of the repairs or improvements so made and (ii)
providing information satisfactory to the Trustee regarding the cost of
such repairs or improvements or (z) the Trustee shall advance all or
any part of such Unreplaced Proceeds Funds for the purpose of Vessel
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Construction of a vessel not subject to the Lien of the Mortgages which
advances shall not exceed the aggregate amount of $20,000,000 at any
time outstanding, provided, that (i) any such advances shall be secured
in favor of the Trustee by perfected Vessel Construction Financing
Liens which may be subject to the liens described in paragraphs (c) and
(d) of the definition of Permitted Liens hereof and which shall be no
less than pari passu with Vessel Construction Financing Liens, if any,
securing Additional Indebtedness pursuant to Section 4.6(a)(6), and
(ii) as soon as practicable after the date of the completion of Vessel
Construction of such vessel and in any event no later than the
expiration of the 180 day period next following the first to occur of
such date of completion or the date on which such vessel is placed in
service, such vessel shall be added to the Lien of the Mortgage as an
Additional Vessel and concurrently with such addition (A) the
Partnership shall have filed with the Trustee an Officers' Certificate
in the form and covering matters required by Section 6.5(i) hereof, an
Additional Mortgage covering such vessel and an opinion satisfying the
requirements of Section 6.5(v) hereof and (B) upon receipt by the
Trustee from the Partnership of the items specified in the preceding
clause (z)(ii)(A), the Trustee shall have released the advances of such
Unreplaced Proceeds Funds and released the Vessel Construction
Financing Liens securing the advances of such Unreplaced Proceeds
Funds.
Section 2.5. Amendment to Section 4.14. The lead-off provisions of
Section 4.14 and paragraph (a) of Section 4.14 are restated to read as follows:
4.14. Officers' Certificates. Each set of financial
statements delivered pursuant to Section 4.13(a) or Section 4.3(b) will
be accompanied by a certificate of an authorized financial officer of
the Managing General Partner setting forth:
(a) Covenant Compliance; Calculations -- the
information (including detailed calculations where
necessary) required in order to establish whether the
Partnership was in compliance with the requirements of
Sections 4.5 through 4.12 during the period covered by the
income statement then being furnished; provided, that the
certificate accompanying (i) each set of quarterly
financial statements for a fiscal quarter delivered
pursuant to Section 4.13(a) shall contain detailed
calculations of the following defined terms for such
fiscal quarter of (A) Partnership Net Income, (B) Cash
Flow Available for Debt Service, (C) Net Cash Available to
Partners and (D) Net Cash Distributable to Partners and
(ii) each set of annual financial statements for a fiscal
year delivered pursuant to Section 4.13(b) shall contain
detailed calculations of the four defined terms referred
to in clause (i) of this proviso for the last fiscal
quarter of such fiscal year and for the entire fiscal year
and, in addition, each such certificate shall contain
(iii) specific information on the sale of Vessels during
such period which constituted Proposed Vessel Sales
including (A) the names of the Vessels sold, (B) the
aggregate sales price and net proceeds, (C) a description
of any Waiver Obligations received as proceeds including
remaining principal amount, payment terms and collateral
securing the Waiver Obligations, (iv) the amount, if any,
of Unreplaced Proceeds Funds withdrawn during such period,
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and (v) the amount of Unreplaced Proceeds Funds held by
the Trustee under Section 6.4 as of the end of said
period; and
SECTION 3. MISCELLANEOUS PROVISIONS.
Section 3.1. Defined Terms. All terms used in this Third Supplement not
defined herein but which are defined in the Indenture, as hereby amended, are
used herein as so defined.
Section 3.2. Ratification of Indenture. Except as herein expressly
amended, the Indenture is in all respects ratified and confirmed. If and to the
extent that any of the terms or provisions of the Indenture are in conflict or
inconsistent with any of the terms or provisions of this Third Supplement, this
Third Supplement shall govern.
Section 3.3. Counterparts. This Third Supplement may be simultaneously
executed in any number of counterparts and all such counterparts together, each
as an original, shall constitute but one and the same instrument.
Section 3.4. References to Indenture. Any and all notices, requests,
certificates and any other instruments, including the Note Agreements, the
Notes, the Guaranty Agreements and the Mortgages, may refer to the Indenture or
the Indenture dated as of March 15, 1987, without making specific reference to
this Third Supplement, but nevertheless all such references shall be deemed to
include this Third Supplement unless the document or instrument, as the case may
be, shall otherwise require.
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IN WITNESS WHEREOF, the Partnership, the Company and the Trustee have
each caused this Third Supplement to be executed all as of the day and year
first above written.
MARITRANS OPERATING PARTNERS L.P.
By Maritrans General Partner Inc.
Its Managing General Partner
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
ATTEST: Its President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
MARITRANS CAPITAL CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
[CORPORATE SEAL] Its President
ATTEST:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
WILMINGTON TRUST COMPANY, as Trustee
By /s/ ▇. ▇▇▇▇▇▇
Its Financial Services Officer
[SEAL]
ATTEST:
/s/ ▇.▇. ▇▇▇▇
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COMMONWEALTH OF PENNSYLVANIA )
) SS:
COUNTY OF PHILADELPHIA )
I, ▇▇▇▇▇ ▇▇▇▇▇▇, a Notary Public in and for said county in the
Commonwealth aforesaid, do hereby certify that ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, personally
known to me to be Vice President of Maritrans General Partner Inc., a Delaware
corporation, managing general partner of Maritrans Operating Partners L.P., a
Delaware limited partnership, the corporation that executed the within
instrument on behalf of said partnership, and personally known to me to be the
same person whose name is subscribed as such officer to the foregoing
instrument, appeared before me this day in person and acknowledged that the seal
affixed to this instrument is such corporation's seal and that such officer,
being thereunto duly authorized, signed and delivered said instrument as such
officer's free and voluntary act and the free and voluntary act of said
corporation, for the uses and purposes therein set forth.
Given under my hand and notarial seal this 8th day of December, 1999.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Notary Public
[NOTARIAL SEAL]
My commission expires:
-9-
COMMONWEALTH OF PENNSYLVANIA )
) SS:
COUNTY OF PHILADELPHIA )
I, ▇▇▇▇▇ ▇▇▇▇▇▇, a Notary Public in and for said county in the
Commonwealth aforesaid, do hereby certify that ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, personally
known to me to be President of Maritrans General Partner Inc., a Delaware
corporation, managing general partner of Maritrans Capital Corporation, a
Delaware limited partnership, the corporation that executed the within
instrument on behalf of said partnership, and personally known to me to be the
same person whose name is subscribed as such officer to the foregoing
instrument, appeared before me this day in person and acknowledged that the seal
affixed to this instrument is such corporation's seal and that such officer,
being thereunto duly authorized, signed and delivered said instrument as such
officer's free and voluntary act and the free and voluntary act of said
corporation, for the uses and purposes therein set forth.
Given under my hand and notarial seal this 8th day of December, 1999.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Notary Public
[NOTARIAL SEAL]
My commission expires:
-10-
_______________________________ )
) SS:
COUNTY OF ____________________ )
I, ▇▇▇▇▇ ▇▇▇▇▇▇, a Notary Public in and for said county in the
Commonwealth aforesaid, do hereby certify that ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, personally
known to me to be Financial Services Officer of Wilmington Trust Company, a
Delaware banking corporation, the corporation that executed the within
instrument on behalf of said partnership, and personally known to me to be the
same person whose name is subscribed as such officer to the foregoing
instrument, appeared before me this day in person and acknowledged that the seal
affixed to this instrument is such corporation's seal and that such officer,
being thereunto duly authorized, signed and delivered said instrument as such
officer's free and voluntary act and the free and voluntary act of said
corporation, for the uses and purposes therein set forth.
Given under my hand and notarial seal this 8th day of December, 1999.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Notary Public
[NOTARIAL SEAL]
My commission expires:
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SCHEDULE I
The following Vessels are proposed to be sold and constitute "Proposed
Vessel Sales":
A. BARGES
VESSEL NAME CAPACITY IN BARRELS YEAR BUILT
1. Interstate 55 53,012 1972
2. Ocean 60 61,636 1981
3. Interstate 70 73,214 1972
4. Interstate 71 81,759 1975
5. Ocean 81 80,000 1981
6. Ocean 90 97,200 1967
7. Ocean 96 95,581 1969
8. Ocean 115 116,440 1968
9. Ocean 135 135,216 1969
10. Ocean 155 166,881 1974
11. Maritrans 32 31,502 1982
12. Interstate 35 37,543 1973
13. Interstate 36 36,567 1973
14. Interstate 38 37,553 1974
15. Interstate 53 53,903 1970
B. TUGBOATS
VESSEL NAME HORSEPOWER YEAR BUILT
1. Venturer 3,200 1973
2. Ambassador 4,000 1976
3. Corsair 4,000 1972
4. Diplomat 4,000 1978
5. Clipper 5,600 1969
6. Cougar 2,200 1975
7. Patriot 3,000 1981
8. Voyager II 3,200 1974
9. Schuykill 1,800 1981
10. Roanoke 2,100 1967
11. Endeavor 2,200 1970
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WAIVER AND AGREEMENT
Dated as of December 1, 1999
MARITRANS OPERATING PARTNERS L.P.
and
MARITRANS CAPITAL CORPORATION
Re: Indenture of Trust and Security Agreement
dated as of March 15, 1987
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TABLE OF CONTENTS
SECTION HEADING PAGE
SECTION 1. HOLDERS' CONSENT TO THIRD SUPPLEMENT; PARTNERSHIP AND COMPANY AGREEMENT
TO THIRD SUPPLEMENT....................................................................2
SECTION 2. WARRANTIES AND REPRESENTATIONS REGARDING THE NOTES.....................................3
SECTION 3. WARRANTIES AND REPRESENTATIONS OF THE PARTNERSHIP AND THE COMPANY
REGARDING THE COMPANY..................................................................3
Section 3.1. Corporate Organization and Authority...................................................3
Section 3.2. Pending Litigation.....................................................................3
Section 3.3. Governmental Consent...................................................................3
Section 3.4. Compliance with Law....................................................................4
Section 3.5. No Defaults............................................................................4
Section 3.6. Certain Documents Legal and Authorized.................................................4
SECTION 4. WARRANTIES AND REPRESENTATIONS OF THE PARTNERSHIP REGARDING THE
PARTNERSHIP............................................................................5
Section 4.1. Organization and Authority.............................................................5
Section 4.2. Pending Litigation.....................................................................5
Section 4.3. Governmental Consent...................................................................5
Section 4.4. Compliance with Law....................................................................6
Section 4.5. No Defaults............................................................................6
Section 4.6. Certain Documents Legal and Authorized.................................................6
Section 4.7. Full Disclosure........................................................................7
Section 4.8. First Preferred Ship Mortgages.........................................................7
SECTION 5. CONDITIONS PRECEDENT...................................................................7
Section 5.1. Opinions of Counsel....................................................................7
Section 5.2. Consent of Requisite Holders...........................................................7
Section 5.3. Confirmation of Guaranty Agreements....................................................7
Section 5.4. Certificate of Managing General Partner................................................8
Section 5.5. Certificate of Maritrans Inc...........................................................8
Section 5.6. The 1999 Mortgage Supplement...........................................................8
Section 5.7. Special Counsel Fees...................................................................8
SECTION 6. MISCELLANEOUS PROVISIONS...............................................................8
Section 6.1. Effective Date.........................................................................8
Section 6.2. Counterparts...........................................................................8
Section 6.3. Governing Law..........................................................................8
Signature Page....................................................................................................9
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ATTACHMENTS TO WAIVER AND AGREEMENT:
Schedule I -- Names of Holders of the Notes
Schedule II -- Remaining First Preferred Ship Mortgages
Exhibit A -- Form of Third Supplemental Indenture of Trust and Security Agreement
Exhibit B -- Description of Closing Opinion of Counsel for the Partnership, the
Company, the Managing General Partner and Maritrans Inc.
Exhibit C -- Form of Confirmation of Partnership Guaranty Agreement
Exhibit D -- Form of Confirmation of Maritrans Guaranty Agreement
Exhibit E -- Certificate of Managing General Partner
Exhibit F -- Certificate of Maritrans Inc.
Exhibit G -- Form of Supplement to the First Preferred Ship Mortgages
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MARITRANS OPERATING PARTNERS L.P.
AND
MARITRANS CAPITAL CORPORATION
WAIVER AND AGREEMENT
Re: Third Supplemental Indenture
of Trust and Security Agreement
dated as of December 1, 1999
Dated as of
December 1, 1999
The Holders of
the Notes named in
Schedule I hereto
Ladies and Gentlemen:
Reference is made to the separate Note Purchase Agreements dated as of
March 15, 1987 between each of you and Maritrans Capital Corporation, a Delaware
corporation (the "Company") pursuant to which $80,000,000 aggregate principal
amount of the Company's Series B Notes due April 1, 2007 were issued in 1987 of
which $52,000,000 in aggregate principal amount (the "Notes") are currently
outstanding. Each of you currently hold the principal amount of Notes indicated
on Schedule I opposite your name. Each of you are sometimes hereinafter referred
to as a "Holder".
The Company is a wholly-owned Subsidiary of Maritrans Operating
Partners L.P., a Delaware limited partnership (the "Partnership") which has
guaranteed payment of the principal of, premium, if any, and interest on the
Notes pursuant to a Guaranty Agreement dated as of March 15, 1987 from the
Partnership (the "Partnership Guaranty Agreement"). The Partnership Guaranty
Agreement and the Notes are secured by an Indenture of Trust and Security
Agreement dated as of March 15, 1987 (the "Original Indenture") among the
Company, the Partnership and Wilmington Trust Company, as Trustee thereunder
(the "Trustee") for the holders of the Notes. The Original Indenture has been
amended and supplemented by a First Supplemental Indenture of Trust and Security
Agreement dated as of August 15, 1989, as amended, and a Second Supplemental
Indenture of Trust and Security Agreement dated as of April 1, 1996 (the
Original Indenture as so supplemented and amended and as the same may be
hereafter supplemented and amended being the "Indenture"). All other series of
Notes issued under the Indenture other than the Notes you hold have been
retired. The Partnership Guaranty Agreement and the Notes are also currently
secured by separate First Preferred Ship Mortgages from the Partnership, as
owner and mortgagor, to the Trustee, as mortgagee, on 25 barges and 19 tugboats
(collectively, referred to as "Vessels"). Capitalized terms which are not
otherwise defined herein shall have the meaning set forth in the Indenture.
Maritrans Operating Partners L.P. Waiver and Agreement
Maritrans Capital Corporation
The Company and the Partnership have entered into agreements for the
sale of a number of the Vessels to one or more third party purchasers which
sales, in the aggregate, are not currently permitted under the Indenture and are
conditioned upon obtaining your consent to such sales. The Company has requested
that you agree to waive the provision in the Indenture which limits the
Company's ability to consummate the sale of the Vessels described in the
preceding sentence and has agreed to certain modifications to the Indenture, all
of which will be effectuated in an amendment to the Indenture contained in the
Third Supplemental Indenture of Trust and Security Agreement dated as of
December 1, 1999 (the "Third Supplement") in the form attached hereto as Exhibit
A. Section 10.2 of the Indenture requires the consent of the Partnership, the
Company and the Holders of at least 66-2/3% in aggregate principal amount of the
outstanding Notes (the "Requisite Holders") to amend the Indenture as set forth
in the Third Supplement in order to permit the aforesaid sales and the other
matters related thereto.
The original First Preferred Ship Mortgages on the Vessels described in
Appendix I to the Supplement to First Preferred Ship Mortgages which is part of
Exhibit G hereto (the "Original First Preferred Ship Mortgages"), which Original
First Preferred Ship Mortgages have previously been supplemented and amended by
Supplement No. 1 dated as of August 15, 1989 ("Supplement No. 1") and by a
Supplement to First Preferred Ship Mortgages dated May 8, 1996 (the "1996
Mortgage Supplement"), are being further supplemented and amended by a
Supplement to First Preferred Ship Mortgages in the form attached hereto as
Exhibit G (the "1999 Mortgage Supplement") in order to include in the public
record the changes to the Indenture under the Third Supplement (the Original
First Preferred Ship Mortgages as so supplemented and amended being referred to
herein as the "Mortgages").
Since you are the holders of the outstanding Notes, the Company and the
Partnership hereby request your consent to this Waiver and Agreement. Upon
satisfaction of the conditions set forth in Section 5, on the Effective Date
(hereinafter defined) this instrument shall constitute an agreement in the
respects hereinafter set forth.
SECTION 1. HOLDERS' CONSENT TO THIRD SUPPLEMENT; PARTNERSHIP AND COMPANY
AGREEMENT TO THIRD SUPPLEMENT.
Subject to the conditions hereinafter set forth, each Person which has
signed a counterpart of this Waiver and Agreement at the foot hereof on behalf
of a Holder of Notes (a "Signing Holder") hereby consents to the amendments to
the Indenture as set forth in the Third Supplement and the amendments to the
Mortgages as set forth in the 1999 Mortgage Supplement and hereby authorizes and
directs the Trustee to execute and deliver the Third Supplement and the 1999
Mortgage Supplement.
The Partnership and the Company agree with the Holders that, subject to
the satisfaction of the conditions set forth in this Waiver and Agreement, the
Indenture is to be amended in the manner provided in the Third Supplement and
the Mortgages are to be supplemented and amended in the manner provided in the
1999 Mortgage Supplement.
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Maritrans Operating Partners L.P. Waiver and Agreement
Maritrans Capital Corporation
SECTION 2. WARRANTIES AND REPRESENTATIONS REGARDING THE NOTES.
The Company and the Partnership hereby represent and warrant that (i)
the only series of Notes currently outstanding under the Indenture is the Notes
and $52,000,000 in aggregate principal amount of Notes are currently
outstanding, and (ii) the registered Holders of the Notes, as of the Effective
Date, are set forth on Schedule I and the outstanding principal amount of Notes
held by each such Holder is set forth opposite such Holder's name on said
Schedule I.
Each Signing Holder hereby represents and warrants that either (i) such
Signing Holder is the sole Holder of the Notes in the aggregate principal amount
set forth opposite the name of such Signing Holder on Schedule I hereto or (ii)
if Schedule I indicates that the Notes set forth opposite the name of a Signing
Holder are owned by Persons other than the Signing Holder, that such Signing
Holder has the authority to sign on behalf of the Holders with respect to such
Notes.
SECTION 3. WARRANTIES AND REPRESENTATIONS OF THE PARTNERSHIP AND THE COMPANY
REGARDING THE COMPANY.
The Partnership and the Company, respectively, warrant and represent to
the Holders as follows:
Section 3.1. Corporate Organization and Authority. The Company:
(a) is a corporation duly organized and validly existing
and in good standing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to execute and
deliver this Waiver and Agreement;
(b) all of the issued and outstanding shares of capital
stock of the Company are fully paid and non-assessable and are owned by
the Partnership; and
(c) has all requisite power and authority and all
necessary licenses and permits to own and operate its properties and to
carry on its business as now conducted and as presently proposed to be
conducted.
Section 3.2. Pending Litigation. There are no proceedings pending, or
to the knowledge of the Company threatened, against or affecting the Company in
any court or before any governmental authority or arbitration board or tribunal
which involve the possibility of materially and adversely affecting the ability
of the Company to enter into or perform this Waiver and Agreement. The Company
is not in default with respect to any order of any court, governmental authority
or arbitration board or tribunal and the Company has not received notice of any
such default.
Section 3.3. Governmental Consent. Neither the nature of the Company or
of any of its business or properties, nor any relationship between the Company
-3-
Maritrans Operating Partners L.P. Waiver and Agreement
Maritrans Capital Corporation
and any other Person, nor any circumstance in connection with the execution and
delivery of this Waiver and Agreement or the Third Supplement is such as to
require a consent, approval or authorization of, or filing, registration or
qualification with, any regulatory body, state, Federal or local on the part of
the Company as a condition to the execution and delivery of this Waiver and
Agreement or the Third Supplement.
Section 3.4. Compliance with Law. The Company:
(a) is not in violation of any laws, ordinances,
governmental rules or regulations or court orders to which it is
subject, and
(b) has not failed to obtain any licenses, permits,
franchises or other governmental authorizations necessary to the
ownership of its Property or to the conduct of its business,
which violation or failure to obtain might reasonably be expected to materially
adversely affect the business, prospects, profits, Properties or condition
(financial or otherwise) of the Company and it has received notice of no such
violation or failure.
Section 3.5. No Defaults. No Default or Event of Default has occurred
and is continuing.
Section 3.6. Certain Documents Legal and Authorized. (a) The compliance
by the Company with all of the provisions of this Waiver and Agreement and the
provisions of the Indenture, as amended by the Third Supplement:
(i) are within the corporate powers of the Company; and
(ii) will not violate any provisions of any law or any
order of any court or governmental authority or agency and will not
conflict with or result in any breach of any of the terms, conditions
or provisions of, or constitute a default under the charter instrument
or By-laws of the Company or any indenture or other agreement or
instrument to which the Company is a party or by which the Company may
be bound.
(b) The execution and delivery of this Waiver and Agreement and the
Third Supplement have been duly authorized by proper corporate action on the
part of the Company (no action by the stockholders of the Company being required
by law, by the charter instrument or By-laws of the Company or otherwise), and
this Waiver and Agreement and the Third Supplement have been executed and
delivered by the Company and this Waiver and Agreement and the Indenture, as
amended by the Third Supplement, constitute, the legal, valid and binding
obligations, contracts and agreements of the Company enforceable in accordance
with their respective terms.
-4-
Maritrans Operating Partners L.P. Waiver and Agreement
Maritrans Capital Corporation
SECTION 4. WARRANTIES AND REPRESENTATIONS OF THE PARTNERSHIP REGARDING THE
PARTNERSHIP.
The Partnership warrants and represents to the Trustee and the Holders
as follows:
Section 4.1. Organization and Authority. The Partnership:
(a) is a limited partnership, duly formed, validly
existing and in good standing under the laws of its jurisdiction of
formation and has the partnership power and authority, to execute and
deliver this Waiver and Agreement, the Third Supplement and the 1999
Mortgage Supplement;
(b) has the partnership power and authority to execute and
deliver the Confirmation of Partnership Guaranty Agreement in the form
attached hereto as Exhibit C (the "Partnership Guaranty Confirmation");
and
(c) has all requisite power and authority and all
necessary licenses and permits to own and operate its Properties and to
carry on its business as now conducted and as presently proposed to be
conducted.
Section 4.2. Pending Litigation. There are no proceedings pending, or
to the knowledge of the Partnership threatened, against or affecting the
Partnership in any court or before any governmental authority or arbitration
board or tribunal which involve the possibility of materially and adversely
affecting the Properties, business, prospects, profits or condition (financial
or otherwise) of the Partnership. There are no proceedings pending, or to the
knowledge of the Partnership threatened, against or affecting the Partnership in
any court or before any governmental authority or arbitration board or tribunal
which involve the possibility of materially and adversely affecting the power or
authority of the Partnership to enter into or perform this Waiver and Agreement,
the Third Supplement or the 1999 Mortgage Supplement or to perform the
Partnership Guaranty Agreement as confirmed in the Partnership Guaranty
Confirmation. The Partnership is not in default with respect to any order of any
court, governmental authority or arbitration board or tribunal and the
Partnership has not received notice of any such default.
Section 4.3. Governmental Consent. Neither the nature of the
Partnership or any of its businesses or properties, nor any relationship between
the Partnership and any other Person, nor any circumstance in connection with
the execution and delivery of this Waiver and Agreement, the Partnership
Guaranty Confirmation, the Third Supplement or the 1999 Mortgage Supplement is
such as to require a consent, approval or authorization of, or filing,
registration or qualification with, any regulatory body, state, Federal or local
on the part of the Partnership as a condition to the execution and delivery of
this Waiver and Agreement, the Partnership Guaranty Confirmation, the Third
Supplement or the 1999 Mortgage Supplement or as a condition to the maintenance
or continued validity and perfection of the Liens created by the Mortgages,
-5-
Maritrans Operating Partners L.P. Waiver and Agreement
Maritrans Capital Corporation
except for the filing of the 1999 Mortgage Supplement with the National Vessel
Documentation Center which filing has been effectuated.
Section 4.4. Compliance with Law. The Partnership:
(a) is not in violation of any laws, ordinances,
governmental rules or regulations or court orders to which it is
subject, or
(b) has not failed to obtain any licenses, permits,
franchises or other governmental authorizations necessary to the
ownership of its Property or to the conduct of its business,
which violation or failure to obtain might reasonably be expected to materially
adversely affect the business, prospects, profits, Properties or condition
(financial or otherwise) of the Partnership and the Partnership has not received
notice of any such violation or failure.
Section 4.5. No Defaults. No Default or Event of Default has occurred
and is continuing.
Section 4.6. Certain Documents Legal and Authorized. (a) The compliance
by the Partnership with all of the provisions of this Waiver and Agreement, of
the Partnership Guaranty Agreement as confirmed by the Partnership Guaranty
Confirmation, of the Indenture as amended by the Third Supplement, and of the
1999 Mortgage Supplement:
(i) are within the partnership powers of the Partnership;
and
(ii) will not violate any provisions of any law or any
order of any court or governmental authority or agency and will not
conflict with or result in any breach of any of the terms, conditions
or provisions of, or constitute a default under the partnership
agreement of the Partnership or other agreement or instrument to which
the Partnership is a party or by which the Partnership may be bound.
(b) The execution and delivery of this Waiver and Agreement, the
Partnership Guaranty Confirmation, the Third Supplement and the 1999 Mortgage
Supplement has been duly authorized by proper partnership action on the part of
the Partnership (no action by the limited partners of the Partnership being
required by law, by the partnership agreement of the Partnership or otherwise)
and this Waiver and Agreement, the Partnership Guaranty Confirmation, the Third
Supplement and the 1999 Mortgage Supplement have been executed and delivered by
the Partnership and this Waiver and Agreement, the Partnership Guaranty
Agreement as confirmed by the Partnership Guaranty Confirmation, the Indenture
as amended by the Third Supplement, and the Mortgages as supplemented by the
1999 Mortgage Supplement, constitute the legal, valid and binding obligations,
contracts and agreements of the Partnership enforceable in accordance with their
respective terms.
-6-
Maritrans Operating Partners L.P. Waiver and Agreement
Maritrans Capital Corporation
Section 4.7. Full Disclosure. No written statement furnished by the
Partnership or the Company to you in connection with this Waiver and Agreement
(including the Form 10-K of Maritrans Inc. for the year ended December 31, 1998
("Form 10-K")) contains any untrue statement of a material fact or omits a
material fact necessary to make the statements contained therein not misleading.
There is no fact peculiar to the Partnership or its Subsidiaries which has not
been disclosed to you in writing (including in the Form 10-K) which materially
affects adversely or, so far as the Partnership can now foresee, will materially
affect adversely the properties, business, prospects, profits or condition
(financial or otherwise) of the Partnership and its consolidated Subsidiaries,
taken as a whole.
Section 4.8. First Preferred Ship Mortgages. After giving effect to the
Proposed Vessel Sales (as defined in the Third Supplement), the First Preferred
Ship Mortgages which secure the Notes are on the Vessels described in Schedule
II to this Waiver and Agreement (the "Remaining First Preferred Ship
Mortgages"). The execution and delivery of this Waiver and Agreement and the
performance thereof and the performance of the Indenture as amended by the Third
Supplement, will not affect the validity, perfection, enforceability or priority
of the Remaining First Preferred Ship Mortgages.
SECTION 5. CONDITIONS PRECEDENT.
The effectiveness of this Waiver and Agreement shall be subject to the
fulfillment by the Partnership and the Company of the following conditions
precedent:
Section 5.1. Opinions of Counsel. Each Holder shall have received, or
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, the special counsel for the Holders, shall have received on
behalf of the Holders from ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, counsel for the
Partnership, the Company, the Managing General Partner and Maritrans Inc. and
from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.C., maritime counsel for
the Partnership, the Company, the Managing General Partner and Maritrans Inc.,
their respective opinions dated the Effective Date (hereinafter defined), in
form and substance satisfactory to the Signing Holders and its special counsel,
and covering the matters set forth in Exhibit B hereto.
Section 5.2. Consent of Requisite Holders. The Partnership and the
Company shall have obtained the written consent of the Requisite Holders, as
evidenced by their signatures at the foot of this document, to the waiver and
amendments of the Indenture as set forth in the Third Supplement and the
amendments to the Mortgages set forth in the 1999 Mortgage Supplement.
Section 5.3. Confirmation of Guaranty Agreements. Each Holder shall
have received, or its special counsel shall have received on behalf of the
Holders from the Partnership and Maritrans Inc., respectively, the written
confirmation of the terms of the Partnership Guaranty Agreement and the MLP
Guaranty Agreement, as the case may be, in the forms attached hereto as Exhibits
C and D, respectively, and dated the Effective Date.
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Maritrans Operating Partners L.P. Waiver and Agreement
Maritrans Capital Corporation
Section 5.4. Certificate of Managing General Partner. Each Holder shall
have received, or your special counsel shall have received on behalf of the
Holders, from the Managing General Partner a certificate executed by the
President or a Vice President of the Managing General Partner substantially in
the form attached hereto as Exhibit E and dated the Effective Date.
Section 5.5. Certificate of Maritrans Inc. Each Holder shall have
received, or your special counsel shall have received on behalf of the Holders,
from Maritrans Inc. a certificate executed by the President or a Vice President
of Maritrans Inc. substantially in the form attached hereto as Exhibit F and
dated the Effective Date.
Section 5.6. The 1999 Mortgage Supplement. The 1999 Mortgage Supplement
shall have been executed and delivered by the parties thereto and it shall have
been filed with the National Vessel Documentation Center.
Section 5.7. Special Counsel Fees. The fees and expenses of ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇, your special counsel, shall have been paid by the Company or the
Partnership.
SECTION 6. MISCELLANEOUS PROVISIONS.
Section 6.1. Effective Date. This Waiver and Agreement shall become
effective upon the first date on which the conditions precedent set forth in
Section 5 hereof shall be satisfied (the "Effective Date").
Section 6.2. Counterparts. This Waiver and Agreement may be
simultaneously executed in any number of counterparts and all such counterparts
together, each as an original, shall constitute but one and the same instrument.
Section 6.3. Governing Law. This Waiver and Agreement shall be governed
by and construed in accordance with the laws of the Commonwealth of
Pennsylvania.
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Maritrans Operating Partners L.P. Waiver and Agreement
Maritrans Capital Corporation
If this Waiver and Agreement is satisfactory to you, please so indicate
by signing the acceptance at the foot of a counterpart of this Waiver and
Agreement.
MARITRANS OPERATING PARTNERS L.P.
By Maritrans General Partner Inc.
Its Managing General Partner
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its Vice President
MARITRANS CAPITAL CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its President
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Maritrans Operating Partners L.P. Waiver and Agreement
Maritrans Capital Corporation
The foregoing is hereby accepted and agreed to by:
PRINCIPAL LIFE INSURANCE COMPANY
By PRINCIPAL CAPITAL MANAGEMENT LLC,
a Delaware Limited Liability Company
Its Authorized Signatory
By /s/ ▇▇▇ ▇. ▇▇▇▇▇
Counsel
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Counsel
AID ASSOCIATION FOR LUTHERANS
By /s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇
Second Vice President - Securities
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Second Vice President
▇▇▇▇ & CO.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Its
ALLSTATE LIFE INSURANCE COMPANY
By ______________________________________
Its
By ______________________________________
Its
Authorized Signatories
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Maritrans Operating Partners L.P. Waiver and Agreement
Maritrans Capital Corporation
FIRST COLONY LIFE INSURANCE COMPANY
By _____________________________________
Its
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Maritrans Operating Partners L.P. Waiver and Agreement
Maritrans Capital Corporation
The undersigned acknowledges receipt of a copy of the foregoing Waiver
and Agreement executed by the Requisite Holders, the Company and the
Partnership, acknowledges the representations and warranties of the Company and
the Partnership made in the first paragraph of Section 2 hereof are true and
correct and acknowledges that the Waiver and Agreement is effective as of the
Effective Date.
WILMINGTON TRUST COMPANY, as Trustee
By /s/ ▇. ▇▇▇▇▇▇
Authorized Officer
-12-
SCHEDULE I
SIGNING HOLDERS (if PRINCIPAL AMOUNT
Different from Registered OF SERIES B NOTES
NAMES OR REGISTERED HOLDERS Holders) OWNED AND HELD
1. Principal Life Insurance Company $20,000,000
2. ▇▇▇▇▇ & Co. Aid Association for Lutherans $8,000,000
3. Allstate Life Insurance Company $8,000,000
4. ▇▇▇▇ & Co. $12,000,000
5. ▇▇▇▇▇▇▇ & Co. First Colony Life Insurance Company $4,000,000
-----------
TOTAL $52,000,000
===========
SCHEDULE II
After giving effect to the Proposed Vessel Sales, the Remaining First
Preferred Ship Mortgages securing the Notes are on the following Vessels:
----------------------------------------------------------------------------------------------------------------------
A. BARGES OFFICIAL NUMBER CAPACITY IN BARRELS YEAR BUILT
----------------------------------------------------------------------------------------------------------------------
Ocean 250 529918 261,187 1970
----------------------------------------------------------------------------------------------------------------------
Ocean Cities 537129 261,040 1972
----------------------------------------------------------------------------------------------------------------------
Ocean 215 562452 215,108 1980
----------------------------------------------------------------------------------------------------------------------
Maritrans 192 614210 185,231 1998 (rebuilt)
----------------------------------------------------------------------------------------------------------------------
Ocean 193 624039 189,211 1980
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 189,210 1975
----------------------------------------------------------------------------------------------------------------------
Ocean 244 532585 245,754 1971
----------------------------------------------------------------------------------------------------------------------
Ocean 211 646669 207,073 1982
----------------------------------------------------------------------------------------------------------------------
Ocean 210 636104 207,000 1981
----------------------------------------------------------------------------------------------------------------------
Ocean 262 272839 253,509 1977 (rebuilt)
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
B. TUGBOATS OFFICIAL NUMBER HORSEPOWER YEAR BUILT
----------------------------------------------------------------------------------------------------------------------
Liberty 534963 7,000 1971
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ 5,600 1975
----------------------------------------------------------------------------------------------------------------------
Seafarer 532672 5,600 1971
----------------------------------------------------------------------------------------------------------------------
Navigator 537824 5,600 1971
----------------------------------------------------------------------------------------------------------------------
Freedom 615200 5,600 1979
----------------------------------------------------------------------------------------------------------------------
Independence 620723 5,600 1980
----------------------------------------------------------------------------------------------------------------------
Columbia 641135 6,000 1981
----------------------------------------------------------------------------------------------------------------------
Honour 565902 5,600 1974
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DESCRIPTION OF CLOSING OPINION OF
COUNSEL TO THE PARTNERSHIP AND THE COMPANY
The closing opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the
Partnership, the Company, the Managing General Partner and Maritrans Inc.,
called for by Section 5.1 of the Waiver and Agreement, shall be to the effect
that:
1. The Company is a corporation, validly existing and in
good standing under the laws of the State of Delaware and has the
corporate power and authority to execute and deliver and perform the
Waiver and Agreement and the Third Supplement and to own and operate
its Properties and to carry on its business as now conducted and all of
the issued and outstanding shares of the Company are fully paid and
non-assessable and are owned by the Partnership.
2. The Partnership is a Delaware limited partnership validly
existing and in good standing under the laws of the State of Delaware,
has all requisite partnership power and authority to execute and
deliver and perform the Waiver and Agreement, the Third Supplement, the
Partnership Guaranty Confirmation and the 1999 Mortgage Supplement, and
to own and operate its Properties and to carry on its business as now
conducted and as presently proposed to be conducted.
3. The Managing General Partner is a corporation validly
existing and in good standing under the laws of the State of Delaware
and has all requisite corporate power and authority to execute and
deliver and perform on behalf of the Partnership, as its managing
general partner, the Waiver and Agreement, the Third Supplement, the
Partnership Guaranty Confirmation and the 1999 Mortgage Supplement.
4. Maritrans Inc. is a corporation validly existing and in
good standing under the laws of the State of Delaware and has all
requisite corporate power and authority to execute and deliver and
perform the Confirmation of MLP Guaranty Agreement (the "Maritrans
Guaranty Confirmation") and to own and operate its Properties and to
carry on its business as now conducted.
5. Each of the Waiver and Agreement and the Third Supplement
has been duly authorized by all necessary action on the part of the
Company, has been duly executed and delivered by the Company and each
of the Waiver and Agreement and the Indenture as amended by the Third
Supplement, constitutes the legal, valid and binding contract of the
Company enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent conveyance or similar laws affecting
creditors' rights generally and general principles of equity
(regardless of whether the application of such principles is considered
in a proceeding in equity or at law).
6. Each of the Waiver and Agreement, the Third Supplement,
the Partnership Guaranty Confirmation and the 1999 Mortgage Supplement
EXHIBIT B
(to Waiver and Agreement)
has been duly authorized by all necessary action on the part of the
Partnership, has been duly executed and delivered by the Partnership
and each of the Waiver and Agreement, the Indenture as amended by the
Third Supplement, the Partnership Guaranty Agreement as confirmed by
the Partnership Guaranty Confirmation and each of the Mortgages as
amended and supplemented by the 1999 Mortgage Supplement, constitutes
the legal, valid and binding contract of the Partnership enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent conveyance or similar laws affecting creditors' rights
generally and general principles of equity (regardless of whether the
application of such principles is considered in a proceeding in equity
or at law).
7. Each of the Waiver and Agreement, the Third Supplement,
the 1999 Mortgage Supplement and the Partnership Guaranty Confirmation
has been duly authorized by all necessary action on the part of the
Managing General Partner and has been duly executed by the Managing
General Partner.
8. The Maritrans Guaranty Confirmation has been duly
authorized by all necessary action on the part of Maritrans Inc., has
been duly executed and delivered by Maritrans Inc. and the MLP Guaranty
Agreement, as confirmed by the Maritrans Guaranty Confirmation,
constitutes the legal, valid and binding contract of Maritrans Inc.
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent conveyance or similar laws affecting creditors'
rights generally and general principles of equity (regardless of
whether the application of such principles is considered in a
proceeding in equity or at law).
9. The execution and delivery by the Company of the Waiver
and Agreement and the Third Supplement and the performance by the
Company of the Waiver and Agreement and the Indenture as amended by the
Third Supplement, will not conflict with or result in any breach of any
of the provisions of or constitute a default under or result in the
creation or imposition of any lien or encumbrance upon any of the
property of the Company pursuant to the provisions of the Certificate
of Incorporation or By-laws of the Company or any agreement or other
instrument known to such counsel to which the Company is a party or by
which the Company may be bound.
10. The execution and delivery by the Partnership of the
Waiver and Agreement, the Third Supplement, the Partnership Guaranty
Confirmation and the 1999 Mortgage Supplement and the performance by
the Partnership of the Waiver and Agreement, the Indenture as amended
by the Third Supplement, the Partnership Guaranty Agreement as
confirmed by the Partnership Guaranty Confirmation, and the Mortgages
as amended and supplemented by the 1999 Mortgage Supplement will not
conflict with or result in any breach of any of the provisions of or
constitute a default under or result in the creation or imposition of
any lien or encumbrance upon any of the property of the Partnership
pursuant to the provisions of the partnership agreement of the
Partnership or any agreement or other instrument known to such counsel
to which the Partnership is a party or by which the Partnership may be
bound.
B-2
11. The execution and delivery of the Maritrans Guaranty
Confirmation and the performance of the MLP Guaranty Agreement as
confirmed by the Maritrans Guaranty Confirmation will not conflict with
or result in any breach of any of the provisions of or constitute a
default under or result in the creation or imposition of any lien or
encumbrance upon any of the property of Maritrans Inc. pursuant to the
provisions of the Certificate of Incorporation or By-laws of Maritrans
Inc. or any agreement or other instrument known to such counsel to
which Maritrans Inc. is a party or by which the Company may be bound.
12. No approval or consent on the part of, or filing,
registration or qualification with, any governmental body, federal,
state or local, is necessary as a condition to (i) the lawful execution
and delivery of the Waiver and Agreement and the Third Supplement by
the Partnership and the Company or of the Partnership Guaranty
Confirmation or the 1999 Mortgage Supplement by the Partnership or of
the Maritrans Guaranty Confirmation by Maritrans Inc., or (ii) in
connection with the execution and delivery of the documents referred to
in clause (i) above, the maintenance and continuation of the validity
and perfection of the Liens created by the Remaining First Preferred
Ship Mortgages, except for the filing of the 1999 Mortgage Supplement
with the National Vessel Documentation Center, which filing has been
duly effectuated.
13. To the knowledge of such counsel, no proceedings are
pending nor threatened against or affecting the Company or the
Partnership before any court, arbitrator or administrative or
governmental body which, in the aggregate, would adversely affect the
ability of the Company, the Managing General Partner, Maritrans Inc.,
or the Partnership to enter into or comply with the following documents
to which it is a party: the Waiver and Agreement, the Third Supplement,
the Partnership Guaranty Confirmation or the 1999 Mortgage Supplement.
For purposes of the opinions in paragraphs 5, 6 and 8, above, such
counsel may (i) assume that (A) the Original Indenture was duly executed and
delivered by the Company and the Partnership and constituted the legal, valid
and binding contract of each of the Company and the Partnership enforceable in
accordance with its terms subject to the following exceptions (herein the
"Standard Enforceability Exceptions"): bankruptcy, insolvency, fraudulent
conveyance or similar laws affecting creditors' rights generally and general
principles of equity (regardless of whether the application of such principles
is considered in a proceeding in equity or at law) and (B) the First
Supplemental Indenture of Trust and Security Agreement (the "First Supplement")
was duly executed and delivered and the Original Indenture as amended and
supplemented by the First Supplement constituted the legal, valid and binding
contract of each of the Company and the Partnership enforceable in accordance
with its terms subject to the Standard Enforceability Exceptions, (ii) assume
that (A) each of the Original First Preferred Ship Mortgages was duly executed
and delivered by the Partnership and constituted the legal, valid and binding
contract of the Partnership enforceable in accordance with its terms subject to
the Standard Enforceability Exceptions and (B) that a Supplement No. 1 for each
of the Original First Preferred Ship Mortgages was duly executed and delivered
and that each such Original First Preferred Ship Mortgage as amended and
supplemented by Supplement No. 1 constituted the legal, valid and binding
contract of the Partnership enforceable in accordance with its terms subject to
the Standard Enforceability Exceptions, (iii) assume that the Partnership
B-3
Guaranty Agreement was duly executed and delivered by the Partnership and
constituted the legal, valid and binding contract of the Partnership enforceable
in accordance with its terms subject to the Standard Enforceability Exceptions,
and (iv) assume that the MLP Guaranty Agreement was duly executed and delivered
by Maritrans Partners L.P. and constituted the legal, valid and binding contract
of Maritrans Partners L.P. enforceable in accordance with its terms subject to
the Standard Enforceability Exceptions.
Such opinion shall also cover such other matters incident to the
transactions contemplated by the Waiver and Agreement as the Holders or their
special counsel may reasonably request.
The closing opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇,
P.C., maritime counsel to the Partnership, the Company, the Managing General
Partner and Maritrans Inc., called for by Section 5.1 of the Waiver and
Agreement, shall be to the effect that:
1. In connection with the execution and delivery of the
Waiver and Agreement and the Third Supplement by the Partnership and
the Company or of the Partnership Guaranty confirmation or the 1999
Mortgage Supplement by the Partnership or of the Maritrans Guaranty
Confirmation by Maritrans Inc., no approval or consent on the part of,
or filing, registration or qualification with, any governmental body,
federal, state or local, is necessary as a condition to the maintenance
and continuation of the priority of the Liens created by the Remaining
First Preferred Ship Mortgages, except for the filing of the 1999
Mortgage Supplement with the National Vessel Documentation Center,
which filing has been duly effectuated.
2. The execution and delivery of the Waiver and Agreement or
the Third Supplement by the Partnership and the Company and the
performance thereof will not affect the validity, enforceability,
perfection or priority of the Remaining First Preferred Ship Mortgages.
B-4
[LETTERHEAD OF MARITRANS OPERATING PARTNERS L.P.]
[Date]
To the Holders of the Series B Notes
of Maritrans Capital Corporation listed on
Schedule I attached hereto (the "Notes")
Re: Confirmation of Partnership Guaranty Agreement
----------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to that certain Third Supplemental Indenture
of Trust and Security Agreement dated as of December 1, 1999 among Maritrans
Operating Partners L.P., a Delaware limited partnership (the "Partnership"),
Maritrans Capital Corporation, a Delaware corporation (the "Company"), and
Wilmington Trust Company, as Trustee (the "Third Supplement") pursuant to which
(i) the parties thereto have agreed to waive and amend certain provisions of the
Indenture of Trust and Security Agreement dated as of March 15, 1987 from the
Partnership and the Company to Wilmington Trust Company, as Trustee (as
heretofore amended and supplemented by that certain First Supplemental Indenture
of Trust and Security Agreement, as amended, by the Second Supplemental
Indenture of Trust and Security Agreement and the Third Supplement, the
"Indenture") and (ii) the Holders of the Notes issued under the Indenture in the
requisite percentage have consented thereto.
Reference is also made to that certain Guaranty Agreement dated as of
March 15, 1987 entered into by the Partnership pursuant to which the Partnership
(i) has guaranteed payment of the Notes issued under the Indenture which are
currently outstanding and (ii) has guaranteed certain other obligations of the
Company set forth therein (the "Partnership Guaranty Agreement").
The Partnership hereby consents to the Third Supplement and hereby
ratifies and confirms its agreement to be bound under the Partnership Guaranty
Agreement after giving effect to the amendments to the Indenture contained in
the Third Supplement.
MARITRANS OPERATING PARTNERS L.P.
By Maritrans General Partner Inc., its Managing
General Partner
By ____________________________________________
Its
EXHIBIT C
(to Waiver and Agreement)
[LETTERHEAD OF MARITRANS INC.]
[Date]
To the Holders of the Series B Notes
of Maritrans Capital Corporation listed on
Schedule I attached hereto (the "Notes")
Re: Confirmation of MLP Guaranty Agreement
--------------------------------------
Ladies and Gentlemen:
Reference is hereby made to that certain Third Supplemental Indenture
of Trust and Security Agreement dated as of December 1, 1999 among Maritrans
Operating Partners L.P., a Delaware limited partnership (the "Partnership"),
Maritrans Capital Corporation, a Delaware corporation (the "Company") and
Wilmington Trust Company, as Trustee (the "Third Supplement") pursuant to which
(i) the parties thereto have agreed to waive and amend certain provisions of the
Indenture of Trust and Security Agreement dated as of March 15, 1987 from the
Partnership and the Company to Wilmington Trust Company, as Trustee (as
heretofore amended and supplemented by that certain First Supplemental Indenture
of Trust and Security Agreement, as amended, by the Second Supplemental
Indenture of Trust and Security Agreement and by the Third Supplement, the
"Indenture") and (ii) the Holders of the Notes issued under the Indenture in the
requisite percentage have consented thereto.
The undersigned, Maritrans Inc., a Delaware corporation, acknowledges
that on April 1, 1993 Maritrans Partners L.P., a Delaware limited partnership
and the sole limited partner of the Partnership ("MLP") was converted to
Maritrans Inc. which assumed the liabilities of MLP as Guarantor under that
Guaranty Agreement dated as of March 15, 1987 (herein, the "MLP Guaranty
Agreement"). Maritrans Inc. hereby consents to the Waiver and Agreement and
hereby ratifies and confirms its agreement to be bound as Guarantor under the
MLP Guaranty Agreement after giving effect to the amendments to the Indenture
contained in the Waiver and Agreement.
MARITRANS INC.
By _______________________________________
Its
EXHIBIT D
(to Waiver and Agreement)
CERTIFICATE OF MANAGING GENERAL PARTNER
To the Holders of the Series B Notes
of Maritrans Capital Corporation listed on
Schedule I attached hereto (the "Notes")
Ladies and Gentlemen:
This Certificate is delivered to you in compliance with the
requirements of that certain Waiver and Agreement dated as of November 1, 1999
(the "Waiver and Agreement") among certain Holders of the above referenced
Notes, Maritrans Capital Corporation (the "Company") and Maritrans Operating
Partners L.P. (the "Partnership") pursuant to which (i) the Holders of the
requisite percentage of Notes issued under the Indenture of Trust and Security
Agreement dated as of March 15, 1987 (the "Original Indenture", such Original
Indenture as amended from time to time the "Indenture"), have consented to the
waiver and amendment of the Indenture by a Third Supplemental Indenture of Trust
and Security Agreement dated as of December 1, 1999 in the form set forth in the
Waiver and Agreement (the "Third Supplement") and (ii) the Partnership has
executed and delivered to each of you a Confirmation of Partnership Guaranty
Agreement (the "Partnership Guaranty Confirmation") pursuant to which it has
confirmed its agreement to be bound under the Partnership Guaranty Agreement
dated as of March 15, 1987 (the "Partnership Guaranty Agreement") after giving
effect to the Waiver and Agreement. The terms which are capitalized herein have
the same meanings as in the Indenture.
The undersigned, Maritrans General Partner Inc., the Managing General
Partner of the Partnership (the "Managing General Partner"), represents and
warrants to you as follows:
1. Organization and Authority.
(a) The Managing General Partner is a corporation, duly organized,
validly existing and in good standing under the laws of the State of
Delaware.
(b) The Managing General Partner has all requisite power and
authority and all necessary licenses and permits to own and operate its
properties and to carry on its business as now conducted.
(c) The Managing General Partner is the sole general partner of the
Partnership under the Amended and Restated Agreement of Limited
Partnership of Maritrans Operating Partners L.P. dated as of April 14,
1987, as amended and restated (the "Partnership Agreement").
2. Partnership Agreement. The Partnership Agreement to which the
Managing General Partner is a party has been duly authorized by all necessary
corporate action on the part of the Managing General Partner, has been duly
Exhibit E
(to Waiver and Agreement)
executed and delivered by the Managing General Partner and constitutes the
legal, valid and binding agreement of the Managing General Partner enforceable
in accordance with its terms, except as enforcement of such terms may be limited
by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally, and by general principles of equity.
3. Authorization, Execution and Delivery. Each of the Waiver and
Agreement, the Third Supplement, the Partnership Guaranty Confirmation and the
1999 Mortgage Supplement has been duly authorized, executed and delivered by the
Managing General Partner on behalf of the Partnership and each of the Waiver and
Agreement, the Indenture as amended by the Third Supplement and the Partnership
Guaranty Agreement as confirmed by the Partnership Guaranty Confirmation and the
1999 Mortgage Supplement constitutes the legal, valid, and binding contract of
the Partnership enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent conveyance or similar laws affecting creditors' rights
generally and general principles of equity (regardless of whether the
application of such principles is considered in a proceeding in equity or at
law).
4. Pending Litigation. There are no proceedings pending or, to the
knowledge of the Managing General Partner, threatened against or affecting the
Managing General Partner in any court or before any governmental authority or
arbitration board or tribunal which if adversely determined would materially and
adversely affect the ability of the Partnership to enter into or comply with the
following documents on behalf of the Partnership: the Waiver and Agreement, the
Indenture as amended by the Third Supplement, the 1999 Mortgage Supplement or
the Partnership Guaranty Agreement as confirmed by the Partnership Guaranty
Confirmation. The Managing General Partner is not in default with respect to any
order of any court or governmental authority or arbitration board or tribunal.
Dated: ________________________, 1999.
MARITRANS GENERAL PARTNER INC.
By
Its___________________________
E-2
CERTIFICATE OF MARITRANS INC.
To the Holders of the Series B Notes
of Maritrans Capital Corporation listed on
Schedule I attached hereto (the "Notes")
Ladies and Gentlemen:
This Certificate is delivered to you in compliance with the
requirements of that certain Waiver and Agreement dated as of December 1, 1999
(the "Waiver and Agreement") among certain Holders of the above referenced
Notes, Maritrans Capital Corporation (the "Company") and Maritrans Operating
Partners L.P. (the "Partnership") pursuant to which (i) the Holders of the
requisite percentage of Notes issued under the Indenture of Trust and Security
Agreement dated as of March 15, 1987 (the "Original Indenture", such Original
Indenture as amended from time to time the "Indenture"), have consented to the
waiver and amendment of the Indenture by a Third Supplemental Indenture of Trust
and Security Agreement dated as of December 1, 1999 in the form set forth in the
Waiver and Agreement and (ii) Maritrans Inc. has executed and delivered to each
of you a Confirmation of MLP Guaranty Agreement (the "Maritrans Guaranty
Confirmation") pursuant to which it has confirmed its agreement after giving
effect to the Waiver and Agreement to be bound under the Guaranty Agreement
dated as of March 15, 1987 (the "MLP Guaranty Agreement"), under which it is
obligated to the holders of the Notes.
Maritrans Inc. represents and warrants to you as follows:
1. Corporate Organization and Authority. Maritrans Inc.:
(a) is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, its jurisdiction of
incorporation;
(b) has all requisite power and authority and all necessary licenses
and permits to own and operate its properties and to carry on its
business as now conducted; and
(c) is a publicly held company whose common stock is listed on the
New York Stock Exchange.
2. Authorization, Execution and Delivery. The Maritrans Guaranty
Confirmation has been duly authorized, executed and delivered by Maritrans Inc.
and the MLP Guaranty Agreement as confirmed by the Maritrans Guaranty
Confirmation constitutes the legal, valid, and binding contract of Maritrans
Inc. enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent conveyance or similar laws affecting creditors' rights
generally and general principles of equity (regardless of whether the
application of such principles is considered in a proceeding in equity or at
law).
EXHIBIT F
(to Waiver and Agreement)
3. Pending Litigation. There are no proceedings pending or, to the
knowledge of Maritrans Inc. threatened against or affecting Maritrans Inc. in
any court or before any governmental authority or arbitration board or tribunal
which if adversely determined would materially and adversely affect the ability
of Maritrans Inc. to enter into or comply with the Maritrans Guaranty
Confirmation. Maritrans Inc. is not in default with respect to any order of any
court or governmental authority or arbitration board or tribunal.
Dated:________________________, 1999.
MARITRANS INC.
By
Its_________________________________
F-2
================================================================================
SUPPLEMENT TO
FIRST PREFERRED SHIP MORTGAGES
DATED December 8, 1999
from
MARITRANS OPERATING PARTNERS L.P.
MORTGAGOR
to
WILMINGTON TRUST COMPANY
as Trustee,
Mortgagee
================================================================================
EXHIBIT G
(to Waiver and Agreement)
TABLE OF CONTENTS
SECTION HEADING PAGE
SECTION 1. AMENDMENTS TO THE MORTGAGES........................3
SECTION 2. MISCELLANEOUS PROVISIONS...........................3
SIGNATURES................................................................. ..4
ATTACHMENTS TO SUPPLEMENT TO FIRST PREFERRED SHIP MORTGAGES
Appendix I Description of Vessels and Recording information for Mortgages
Annex I True Copy of Third Supplemental Indenture of Trust and Security
Agreement
SUPPLEMENT TO FIRST PREFERRED SHIP MORTGAGES
This SUPPLEMENT TO FIRST PREFERRED SHIP MORTGAGES (as the same may be
amended and supplemented from time to time, the "Mortgage Supplement"), dated
the 8th day of December, 1999, from MARITRANS OPERATING PARTNERS L.P., a
Delaware limited partnership (the "Partnership"), to WILMINGTON TRUST COMPANY,
as Trustee (the "Trustee"), under an Indenture of Trust and Security Agreement
dated as of March 15, 1987 among the Partnership, the Trustee and Maritrans
Capital Corporation, a Delaware corporation, 100% of the capital stock of which
is owned by the Partnership (the "Company") relating to the Notes referred to
below (said Indenture of Trust and Security Agreement, as the same has
heretofore been amended and supplemented by the First Supplement (defined
below), as amended and supplemented by the Second Supplement (defined below), as
amended and supplemented by a Third Supplement (defined below) and as may
hereafter be amended or supplemented, being herein called the "Indenture", and
the Trustee, and any successor trustee, being herein called the "Mortgagee"),
for the benefit of the holders of the Notes (as defined below) from time to time
outstanding, supplements those certain First Preferred Ship Mortgages in the
form specified in the Indenture on the Vessels described on Appendix I hereto
(the original First Preferred Ship Mortgages as heretofore supplemented and as
supplemented hereby and as the same may hereafter be amended or supplemented,
being herein referred to as the "Mortgages") made by the Partnership in favor of
the Mortgagee, which Mortgages were recorded on the date, at the time and in the
place as set forth on Appendix I hereto.
RECITALS:
A. The Partnership is the sole owner of the whole of each of the
vessels described on Appendix I which is documented in the name of the
Partnership under the laws of the United States and has its Home Port (formerly
at Philadelphia, Pennsylvania) and its hailing port at Wilmington, Delaware
(said vessels being hereinafter referred to as the "Vessels").
B. The Company has heretofore duly issued in accordance with the terms
of the Indenture (i) $35,000,000 aggregate principal amount of its Series A
Notes (together with any Notes issued in lieu of or in substitution or exchange
therefor pursuant to the Indenture being herein called the "Series A Notes"),
(ii) $80,000,000 aggregate principal amount of its Series B Notes (together with
any Notes issued in lieu of or in substitution or exchange therefor pursuant to
the Indenture being herein called the "Series B Notes"), and (iii) up to
$20,000,000 aggregate principal amount of its Series C Notes due June 30, 1995
(together with any Notes issued in lieu of or in substitution or exchange
therefore pursuant to the Indenture being herein called the "Series C Notes").
The Series C Notes were issued pursuant to the First Supplemental Indenture of
Trust and Security Agreement dated as of August 15, 1989 among the Company, the
Partnership and the Mortgagee (as amended and supplemented by Amendment No. 1 to
the First Supplemental Indenture of Trust and Security Agreement dated as of
March 31, 1992, the "First Supplement"). The Indenture was subsequently amended
by a Second Supplemental Indenture of Trust and Security Agreement dated as of
April 1, 1996 (the "Second Supplement"). The Series A Notes and the Series C
Notes have heretofore been retired. The Series B Notes and any Additional Notes
issued under the Indenture are herein collectively referred to as the "Notes".
C. The Partnership has heretofore entered into the Guaranty Agreement
dated as of March 15, 1987 (as the same has been amended by the First
Supplemental Guaranty Agreement dated as of August 15, 1989 and as may be
further amended and supplemented from time to time, the "Partnership Guaranty
Agreement") providing for the guarantee by the Partnership of the payment by the
Company of the principal of and premium and interest on the Notes.
D. The Company, the Partnership and the Mortgagee have entered into the
Third Supplemental Indenture of Trust and Security Agreement dated as of
December 1, 1999 (a true copy of which is attached hereto as Annex I) (the
"Third Supplement") which further amends and supplements the Indenture.
E. The Notes and all principal thereof and interest and premium thereon
and all additional amounts and other sums at any time due and owing from or
required to be paid by the Company under the terms of the Notes and the
Indenture and by the Partnership under the terms of the Partnership Guaranty
Agreement, the Indenture and the Mortgages, are hereinafter sometimes referred
to as the "indebtedness hereby secured".
F. The full name and address of the Partnership, as mortgagor, is:
Maritrans Operating Partners L.P.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer, Maritrans General Partner Inc.
G. The full name and address of the Mortgagee is:
Wilmington Trust Company as trustee under an
Indenture of Trust and Security Agreement dated
as of March 15, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administrator
NOW, THEREFORE, the Partnership, in consideration of the premises and
of the sum of $10.00 received by the Partnership from the Mortgagee and other
good and valuable consideration, receipt of which is hereby acknowledged by the
Partnership, and in order to secure the payment of the indebtedness hereby
secured and the performance and observance of all of the covenants and
conditions in the Notes, the Indenture, the Partnership Guaranty Agreement and
in the Mortgage contained, has granted, bargained, sold, conveyed, warranted,
mortgaged, pledged and hypothecated and by these presents does hereby grant,
bargain, sell, convey, warrant, mortgage, pledge and hypothecate, unto the
Mortgagee, its successors and assigns, all and singular of the whole of each of
the Vessels, together with all engines, boilers, machinery, masts, boats,
anchors, cables, chains, tackle, fittings and equipment and all other
-2-
appurtenances, improvements, additions and replacements appertaining and
belonging to the Vessels, whether now owned or hereafter acquired, whether on
board or not.
TO HAVE AND TO HOLD the Vessels unto the Mortgagee and its successors
and assigns, forever.
PROVIDED, HOWEVER, and these presents are on the condition that, if the
Partnership shall pay or cause to be paid the indebtedness hereby secured, as
and when the same shall become due and payable, by maturity or otherwise, and if
the Partnership shall duly perform all the covenants, agreements and conditions
contained herein, in the Indenture and in the Partnership Guaranty Agreement,
then the Mortgages shall be void and of no effect, and in such case the
Mortgagee, its successors or assigns, on the demand and at the expense of the
Partnership, shall execute and deliver to the Partnership proper instruments to
evidence the revesting in it of all the rights, title and interest granted
hereby and to satisfy and discharge the Mortgages of record; otherwise, the
Mortgages shall remain in full force and effect.
PROVIDED, FURTHER, that until some one or more Events of Default shall
occur, the Partnership shall have the possession, use and operation of the
Vessels.
The Partnership hereby covenants and agrees with the Mortgagee and its
successors and assigns as follows:
SECTION 1. AMENDMENTS TO THE MORTGAGES.
Section 1.1. As used in the Mortgages, the definition of the term
"Indenture" is hereby restated to mean as follows: the Indenture of Trust and
Security Agreement dated as of March 15, 1987 among the Partnership, the Company
and the Trustee (i) as amended and supplemented by the First Supplemental
Indenture of Trust and Security Agreement dated as of August 15, 1989, as
amended and supplemented by Amendment No. 1 thereto dated as of March 31, 1992,
(collectively, the "First Supplement"), (ii) as amended and supplemented by the
Second Supplemental Indenture of Trust and Security Agreement dated as of April
1, 1996, (the "Second Supplement"), (iii) as amended and supplemented by the
Third Supplemental Indenture of Trust dated as of December 1, 1999, (the "Third
Supplement") and (iv) as may hereafter be amended or supplemented.
SECTION 2. MISCELLANEOUS PROVISIONS.
Section 2.1. This Mortgage Supplement is executed as and shall
constitute an instrument supplemental to each of the Mortgages, and shall be
construed in connection with and as part of each of the Mortgages.
Section 2.2. Except as modified and expressly amended by this Mortgage
Supplement, the Mortgages as heretofore amended and supplemented are in all
respects ratified and confirmed and all the terms, provisions and conditions
thereof shall be and remain in full force and effect.
-3-
Section 2.3. Except as otherwise provided herein, any term used herein
which is defined in the Mortgages as hereby supplemented shall have the meaning
set forth in the Mortgages as hereby supplemented.
IN WITNESS WHEREOF, the Partnership has caused this Mortgage Supplement
to be executed as of the day and year first above written.
MARITRANS OPERATING PARTNERS L.P.
By Maritrans General Partner Inc.
Its Managing General Partner
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Its Vice President
WILMINGTON TRUST COMPANY, as Trustee
By /s/ ▇. ▇▇▇▇▇▇
--------------------------------
Its Financial Services Officer
-4-
COMMONWEALTH OF PENNSYLVANIA )
) SS:
COUNTY OF PHILADELPHIA )
I, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, a Notary Public in and for said County in the
Commonwealth aforesaid, do hereby certify that ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, personally
known to me to be Vice President of Maritrans General Partner Inc., a Delaware
corporation, a general partner of Maritrans Operating Partners L.P., a Delaware
limited partnership, the corporation that executed the within instrument on
behalf of said partnership, and personally known to me to be the same person
whose name is subscribed as such officer to the foregoing instrument, appeared
before me this day in person and acknowledged that he, being thereunto duly
authorized, signed and delivered said instrument as his free and voluntary act
and the free and voluntary act of said corporation, for the uses and purposes
therein set forth.
GIVEN under my hand and notarial seal this 8th day of December, 1999.
[NOTARIAL SEAL]
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Notary Public
My commission expires:
-5-
STATE OF DELAWARE )
) SS:
COUNTY OF NEWCASTLE )
I, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, a Notary Public in and for said County in the State
aforesaid, do hereby certify that ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, personally known to me to be
Financial Services Officer of Wilmington Trust Company, a Delaware banking
corporation, the corporation that executed the within instrument and personally
known to me to be the same person whose name is subscribed as such officer to
the foregoing instrument, appeared before me this day in person and acknowledged
that he, being thereunto duly authorized, signed and delivered said instrument
as his free and voluntary act and the free and voluntary act of said
corporation, for the uses and purposes therein set forth.
GIVEN under my hand and seal of office this 8th day of December, 1999.
[NOTARIAL SEAL]
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Notary Public
My commission expires:
-6-
DESCRIPTION OF VESSELS AND RECORDING INFORMATION FOR MORTGAGES
The First Preferred Ship Mortgage for each of the following Vessels was
delivered and accepted at the Marine Inspection Office, United States Coast
Guard, Port of Philadelphia, Pennsylvania, and recorded as indicated and
Supplement No. 1 to First Preferred Ship Mortgage for each such Vessel was also
delivered and accepted at such office and recorded as indicated and the
Supplement to First Preferred Ship Mortgage dated May 8, 1996 for each of such
Vessels was also delivered and accepted at the National Vessel Documentation
Center, Falling Water, West Virginia, and recorded at 2:00 p.m. on 5/15/96 in
Book 96-29 at page 147:
SUPPLEMENT NO. 1 TO
FIRST PREFERRED SHIP MORTGAGE FIRST PREFERRED SHIP MORTGAGE:
RECORDATION DATA: RECORDATION DATA:
---------------- ----------------
OFFICIAL DATE BOOK DATE BOOK
NAME NUMBER AND TIME AND PAGE AND TIME AND PAGE
BARGES
(1) Ocean 262 272,839 04/21/87 Book 874, 10/5/89, Book 8910,
4:16 p.m. Page 142 4:30 p.m. Page 110
529,918 4/21/87
(2) Ocean 250 4:19 p.m. Book 874, 10/5/89, Book 8910,
Page 143 4:02 p.m. Page 104
(3) Ocean Cities 537,129 4/21/87 Book 874, 10/5/89, Book 8910,
4:27 p.m. Page 146 4:45 p.m. Page 113
(4) Ocean 215 562,452 4/23/87 Book 874, 10/5/89, Book 8910,
3:55 p.m. Page 214 4:17 p.m. Page 108
(5) Ocean 192 614,210 4/21/87 Book 874, 10/5/89, Book 8910,
4:13 p.m. Page 139 3:27 p.m. Page 95
(6) Ocean 193 624,039 4/21/87 Book 874, 10/5/89, Book 8910,
4:21 p.m. Page 144 3:39 p.m. Page 99
(7) Ocean States 565,314 4/21/87, Book 874, 10/5/89, Book 8910,
4:40 p.m. Page 147 4:25 p.m. Page 109
(8) Ocean 155 556,673 4/21/87, Book 874, 10/5/89, Book 8910,
4:26 p.m. Page 145 4:07 p.m. Page 106
(9) Ocean 135 520,687 4/23/87, Book 874, 10/5/89, Book 8910,
3:45 p.m. Page 211 3:55 p.m. Page 103
(10) Interstate 138 611,433 4/21/87 Book 874, 10/5/89, Book 8910,
5:14 p.m. Page 159 3:01 p.m. Page 88
(11) Ocean 115 515,042 4/22/87, Book 874, 10/5/89, Book 8910,
4:58 p.m. Page 193 3:48 p.m. Page 100
(12) Ocean 90 507,495 4/23/87, Book 874, 10/5/89, Book 8910,
4:37 p.m. Page 227 3:23 p.m. Page 94
APPENDIX I
(to Mortgage Supplement)
SUPPLEMENT NO. 1 TO
FIRST PREFERRED SHIP MORTGAGE FIRST PREFERRED SHIP MORTGAGE:
RECORDATION DATA: RECORDATION DATA:
---------------- ----------------
OFFICIAL DATE BOOK DATE BOOK
NAME NUMBER AND TIME AND PAGE AND TIME AND PAGE
(13) Ocean 96 523,233 4/23/87, Book 874, 10/5/89, Book 8910,
4:05 p.m. Page 217 3:33 p.m. Page 97
(14) Interstate 71 563,364 4/21/87, Book 874, 10/5/89, Book 8910,
5:06 p.m. Page 156 2:45 p.m. Page 82
4/22/87,
(15) Interstate 70 540,401 5:20 p.m. Book 874, 10/5/89, Book 8910,
Page 202 2:39 p.m. Page 79
(16) Interstate 53 530,062 4/21/87, Book 874, 10/5/89, Book 8910,
5:05 p.m. Page 155 3:00 p.m. Page 87
(17) Interstate 55 544,437 4/22/87, Book 874, 10/5/89, Book 8910,
5:22 p.m. Page 204 3:08 p.m. Page 89
(18) Interstate 36 552,900 4/21/87, Book 874, 10/5/89, Book 8910,
4:52 p.m. Page 153 2:40 p.m. Page 80
(19) Interstate 38 553,120 4/23/87, Book 874, 10/5/89, Book 8910,
4:45 p.m. Page 229 3:09 p.m. Page 90
(20) Interstate 35 552,065 4/22/87, Book 874, 10/5/89, Book 8910,
4:39 p.m. Page 185 2:19 p.m Page 74
(21) Interstate 29 536,837 4/22/87, Book 874, 10/5/89, Book 8910,
5:02 p.m. Page 196 3:10 p.m Page 91
(22) Interstate 30 284,032 4/22/87, Book 874, 10/5/89, Book 8910,
4:54 p.m. Page 192 3:20 p.m. Page 93
(23) CHEM 36 293,343 4/22/87, Book 874, 10/5/89, Book 8910,
4:17 p.m. Page 176 1:45 p.m. Page 67
(24) Ocean 244 532,585 4/21/87, Book 874, 10/5/89, Book 8910,
5:18 p.m. Page 163 3:50 p.m. Page 101
(25) Ocean 211 646,669 4/22/87, Book 874, 10/5/89, Book 8910,
4:27 p.m. Page 181 4:05 p.m. Page 105
(26) Ocean 210 636,104 4/22/87, Book 874, 10/5/89, Book 8910,
4:49 p.m. Page 190 3:54 p.m. Page 102
643,281
(27) Ocean 81 4/23/87, Book 874, 10/5/89, Book 8910,
4:35 p.m. Page 226 4:33 p.m. Page 111
(28) Chem Ten 520,776 4/22/87, Book 874, 10/5/89, Book 8910,
4:22 p.m. Page 178 1:58 p.m. Page 70
TUGBOATS:
(1) Clipper 520,685 4/22/87, Book 874, 10/5/89, Book 8910,
4:24 p.m. Page 179 12:40 p.m. Page 54
(2) Freedom 615,200 4/21/87, Book 874, 10/5/89, Book 8910,
4:55 p.m. Page 154 12:45 p.m. Page 55
(3) Honour 565,902 4/22/87, Book 874, 10/5/89, Book 8910,
5:06 p.m. Page 197 1:04 p.m. Page 57
SUPPLEMENT NO. 1 TO
FIRST PREFERRED SHIP MORTGAGE FIRST PREFERRED SHIP MORTGAGE:
RECORDATION DATA: RECORDATION DATA:
---------------- ----------------
OFFICIAL DATE BOOK DATE BOOK
NAME NUMBER AND TIME AND PAGE AND TIME AND PAGE
(4) Independence 620,723 4/22/87 Book 874, 10/5/89, Book 8910,
3:10 p.m. Page 198 1:20 p.m. Page 60
(5) Navigator 537,824 4/21/87, Book 874, 10/5/89, Book 8910,
5:08 p.m. Page 157 12:19 p.m. Page 52
4/23/87, Book 874, 10/5/89, Book 8910,
(6) Seafarer 532,672 4:16 p.m. Page 221 1:40 p.m. Page 64
569,341 4/23/87, Book 874, 10/5/89, Book 8910,
(7) Valour 4:24 p.m. Page 223 1:30 p.m. Page 62
578,207 4/23/87, Book 874, 10/5/89, Book 8910,
(8) Ambassador 3:41 p.m. Page 210 10:48 a.m. Page 35
536,836 4/22/87, Book 874, 10/5/89, Book 8910,
(9) Corsair 4:37 p.m. Page 183 10:53 a.m. Page 36
590,232 4/23/87 Book 874, 10/5/89, Book 8910,
(10) Diplomat 4:00 p.m. Page 216 10:59 a.m. Page 38
4/22/87, Book 874, 10/5/89, Book 8910,
(11) Challenger 513,794 4:15 p.m. Page 174 11:03 a.m. Page 40
511,237 4/23/87, Book 874, 10/5/89, Book 8910,
(12) Crusader 3:51 p.m. Page 213 12:05 p.m. Page 50
550,670 4/23/87, Book 874, 10/5/89, Book 8910,
(13) Venturer 4:40 p.m. Page 228 1:42 p.m. Page 65
(14) Voyager II 556,625 4/23/87, Book 874, 10/5/89, Book 8910,
4:15 p.m. Page 220 1:55 p.m. Page 68
(15) Endeavor 529.705 4/22/87 Book 874, 10/5/89, Book 8910,
4:48 p.m. Page 189 11:57 a.m. Page 49
515,013 4/22/87 Book 874, 10/5/89, Book 8910,
(16) Traveller 5:12 p.m. Page 200 1:18 p.m. Page 59
506,289 4/22/87, Book 874, 10/5/89, Book 8910,
(17) Roanoke 5:21 p.m. Page 203 1:57 p.m. Page 69
609,686 Book 874, 10/5/89, Book 8910,
(18) Delaware 4/23/87, Page 215 11:15 a.m. Page 41
3:57 p.m.
4/23/87, Book 874, 10/5/89, Book 8910,
(19) Ranger 508,340 4:23 p.m. Page 222 2:12 p.m. Page 73
(20) Liberty 534,963 4/21/87, Book 874, 10/5/89, Book 8910,
5:15 p.m. Page 160 11:27 a.m. Page 45
(21) Columbia 641,135 4/22/87, Book 874, 10/5/89, Book 8910,
4:33 p.m. Page 182 12:50 p.m. Page 56
(22) Patriot 636,105 4/23/87, Book 874, 10/5/89, Book 8910,
4:12 p.m. Page 219 2:26 p.m. Page 77
I-3
SUPPLEMENT NO. 1 TO
FIRST PREFERRED SHIP MORTGAGE FIRST PREFERRED SHIP MORTGAGE:
RECORDATION DATA: RECORDATION DATA:
---------------- ----------------
OFFICIAL DATE BOOK DATE BOOK
NAME NUMBER AND TIME AND PAGE AND TIME AND PAGE
(23) Schuylkill 633,396 4/22/87 Book 874, 10/5/89, Book 8910,
5:26 p.m. Page 206 1:25 p.m. Page 61
(24) Cougar 569,665 4/22/87, Book 874, 10/5/89, Book 8910,
4:38 p.m. Page 184 11:25 a.m. Page 44
I-4
THIRD SUPPLEMENTAL INDENTURE OF TRUST AND SECURITY AGREEMENT
ANNEX I
(to Mortgage Supplement)
