EX-10.3(d)
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SECOND SUPPLEMENTAL INDENTURE OF TRUST
AND SECURITY AGREEMENT
Dated as of April 1, 1996
From
MARITRANS OPERATING PARTNERS L.P.
and
MARITRANS CAPITAL CORPORATION
To
WILMINGTON TRUST COMPANY,
as Trustee
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TABLE OF CONTENTS
SECTION HEADING PAGE
Parties ...................................................................1
Recitals ..................................................................1
SECTION 1. AMENDMENTS TO INDENTURE ....................................2
Section 1.1. Amendments to Section 1.1 ...............................2
Section 1.2. Amendment to Section 4.9 ................................5
Section 1.3. Amendment to Section 4.14 ...............................6
SECTION 2. MISCELLANEOUS PROVISIONS ...................................6
Section 2.1. Defined Terms ...........................................6
Section 2.2. Ratification of Indenture ...............................6
Section 2.3. Counterparts ............................................6
Section 2.4. References to Indenture .................................6
Signature Page ............................................................7
SECOND SUPPLEMENTAL INDENTURE OF TRUST AND SECURITY AGREEMENT
SECOND SUPPLEMENTAL INDENTURE OF TRUST AND SECURITY AGREEMENT (this
"Second Supplement") dated as of April 1, 1996, 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 that certain First
Supplemental Indenture of Trust and Security Agreement dated as of August 15,
1989, 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, $8,500,000 of which are currently outstanding
(the "Series A Notes") (ii) $80,000,000 aggregate principal amount of its Series
B Notes due April 1, 2007, all of which are currently outstanding (the "Series B
Notes"), 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 A Notes and
Series B Notes are herein collectively referred to as the "Notes"); and
B. On April 1, 1993, Maritrans Partners, L.P., a Delaware limited
partnership and the sole limited partner of the Partnership ("MLP"), was
converted from a limited partnership to a corporation through the formation of
Maritrans, Inc., a Delaware corporation, which succeeded to all the assets and
liabilities of MLP (the foregoing conversion of MLP from a limited partnership
to a corporation is herein referred to as the "MLP Corporate Conversion"); and
C. The MLP Corporate Conversion has resulted in certain tax and
accounting changes to the Partnership, including treatment of the Partnership as
a corporation for federal income tax purposes, and as a result, the parties
hereto desire to further amend the Indenture; and
D. As required 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 consented to amend the Indenture as set forth
below.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, receipt of which upon delivery of this Second Supplement
the undersigned hereby acknowledge, the Partnership, the Company and the Trustee
hereby agree as follows:
Maritrans Operating Partners L.P. Second Supplemental Indenture
Maritrans Capital Corporation
SECTION 1. AMENDMENTS TO INDENTURE.
Section 1.1. Amendments to Section 1.1. (a) Section 1.1 of the
Indenture is hereby amended by adding the definitions of "GAAP" and "Partnership
Net Income" which read as follows:
"GAAP" shall mean generally accepted accounting principles at
the time in effect.
"Partnership Net Income" for any fiscal quarter of the
Partnership shall mean the gross revenues of the Partnership for such
fiscal quarter, less all expenses and other proper charges (including
taxes on income) for such fiscal quarter determined in accordance with
GAAP, provided, however, that:
(a) the deduction for income taxes in calculating
Partnership Net Income for any fiscal quarter which includes
March 31, 1993 or any later date shall be on the basis of
income taxes paid (or refunded) for such fiscal quarter as
determined in accordance with paragraph (b) of this definition
and specifically without giving effect to the following:
(i) any adjustments to income with respect
to deferred tax assets or deferred tax liabilities
including, without limitation, the one-time charge
against income of the Partnership in connection with
the recognition by the Partnership required by GAAP
of the deferred tax liability of $16,429,000
resulting from the conversion on April 1, 1993 of MLP
from a Delaware limited partnership to a Delaware
corporation; and
(ii) any other adjustments to income
required by GAAP with respect to the deduction for
income taxes which would modify the deduction as
determined in paragraph (b) of this definition;
(b) income taxes for a fiscal quarter of the
Partnership (herein "Quarterly Income Taxes") shall be:
(i) for the first fiscal quarter of a fiscal
year of the Partnership, the first installment of
estimated taxes paid with respect to income taxes of
the Partnership for such fiscal year,
(ii) for the second fiscal quarter of a
fiscal year of the Partnership, the second
installment of estimated taxes paid with respect to
income taxes of the Partnership for such fiscal year,
(iii) for the third fiscal quarter of a
fiscal year of the Partnership, the third installment
of estimated taxes paid with respect to income taxes
of the Partnership for such fiscal year, and
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Maritrans Operating Partners L.P. Second Supplemental Indenture
Maritrans Capital Corporation
(iv) for the fourth fiscal quarter of a
fiscal year of the Partnership, (A) the fourth
installment of estimated taxes paid with respect to
income taxes of the Partnership for such fiscal year,
plus (B) any additional taxes which are paid with
respect to such income taxes on or prior to the due
date for filing the income tax return for such fiscal
year (without regard to any extension for filing)
(the "Fiscal Year Due Date");
provided, however that (1) only the estimated taxes of the
Partnership which are actually paid in a fiscal quarter
shall be included for purposes of determining the Quarterly
Income Taxes for such fiscal quarter and any overpayment of
estimated taxes of the Partnership which is applied to
satisfy estimated taxes for the fiscal quarter of another
fiscal year shall not be considered to be estimated taxes
paid in such fiscal quarter for purposes of calculating
Quarterly Income Taxes for such fiscal quarter, (2) if the
Partnership at any time after the Fiscal Year Due Date for a
prior fiscal year shall pay additional income taxes with
respect to the income taxes of the Partnership for such
prior fiscal year, the Quarterly Income Taxes determined
pursuant to the foregoing provisions for the fiscal quarter
in which such additional tax shall be paid shall be
increased by the amount of such additional taxes paid and
(3) if the Partnership at any time shall receive a refund of
income taxes of the Partnership, the Quarterly Income Taxes
determined pursuant to the foregoing provisions for the
fiscal quarter in which such refund is received shall be
reduced by the amount of such refund and if the amount of
such refund exceeds the installment of estimated taxes paid
for such fiscal quarter then the Quarterly Income Taxes for
such fiscal quarter shall be a negative number in an amount
equal to such excess;
(c) any calculation of Partnership Net Income for any
fiscal quarter shall in any event exclude net earnings and
losses of any Subsidiary of the Partnership except that
Partnership Net Income shall include net earnings of any such
Subsidiary to the extent that such net earnings actually have
been received by the Partnership.
(b) Section 1.1 of the Indenture is hereby further amended by
restating the definitions of "Cash Flow Available for Debt Service",
"MLP", "MLP Guaranty Agreement", "Managing General Partner" and "Net
Cash Available to Partners" to read as follows and adding the related
definitions of "Net Cash Distributable to Partners" and "Quarterly
Available Net Cash" to read as follows:
"Cash Flow Available for Debt Service" shall mean,
for any fiscal quarter, the Partnership Net Income for such
fiscal quarter plus the sum of (a) the Quarterly Income Taxes
for such fiscal quarter, (b) all amounts deducted in the
computation of such Partnership Net Income in respect of the
depreciation or amortization of assets, (c) all amounts
deducted in the computation of Partnership Net Income in
respect of interest on all Indebtedness of the Partnership
during such fiscal quarter, (d) all
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Maritrans Operating Partners L.P. Second Supplemental Indenture
Maritrans Capital Corporation
amounts deducted in the computation of such Partnership Net Income in
respect of Rentals paid under Long-Term Leases, (e) all capital
returned to the Partnership from each of its Subsidiaries during such
fiscal quarter, (f) all cash dividends received by the Partnership
from each of its Subsidiaries during such fiscal quarter except to the
extent otherwise included in Partnership Net Income for such fiscal
quarter, (g) the net loss, if any, deducted in determining Partnership
Net Income for such fiscal quarter in respect of al1 sales or other
dispositions of capital assets of the Partnership, and less the sum of
(h) the net gain, if any, included in Partnership Net Income for such
fiscal quarter in respect of all sales or other dispositions of
capital assets of the Partnership and (i) all capital contributions
made by the Partnership to each of its Subsidiaries during such fiscal
quarter.
"MLP" shall mean Maritrans Inc., a Delaware corporation and
successor in interest to Maritrans Partners L.P."
"MLP Guaranty Agreement" shall mean that certain Guaranty
Agreement dated as of March 15, 1987 of Maritrans Partners L.P., the
liabilities and obligations of Maritrans Partners L.P. thereunder
having been assumed by Maritrans Inc.
"Managing General Partner" shall mean Maritrans General
Partner Inc., a Delaware corporation, the managing general partner of
the Partnership.
"Net Cash Available to Partners" shall mean, for any fiscal
quarter of the Partnership commencing with the fiscal quarter ending
June 30, 1987, the sum of:
(1) the aggregate amount of Net Cash Available to Partners
determined under this definition for any fiscal quarter preceding
such fiscal quarter to the extent not distributed to the partners of
the Partnership (the "Prior Available Net Cash"), plus
(2) the additional amount of net cash becoming available to
Partners for such fiscal quarter (the "Quarterly Available Net Cash")
which shall equal the sum of (a) the Cash Flow Available for Debt
Service for such fiscal quarter less (i) the Quarterly Income Taxes for
such fiscal quarter, and (ii) all principal payments made during such
fiscal quarter with respect to Indebtedness of the Partnership other
than (A) the Notes, (B) the Working Capital Line and (C) any
Indebtedness refinanced with the proceeds from Additional Indebtedness,
and (iii) all interest payments made during such fiscal quarter with
respect to Indebtedness of the Partnership other than the Notes, and
(iv) an amount equal to the aggregate amount of Rentals paid under
Long-Term Leases during such fiscal quarter, (b) the aggregate amount
of cash proceeds from the sale or other disposition of capital assets
of the Partnership which are paid to the Partnership during such fiscal
quarter and are not otherwise required to be held by the Trustee
hereunder, and (c) without duplication, the aggregate amount of
Distribution Support Capital (as defined in the Distribution Support
Agreement) contributed by Sonat Inc. to the Partnership pursuant to the
Distribution Support Agreement with respect to such fiscal quarter, or
the aggregate amount of Deferred Distribution Support Capital (as
defined in the Distribution Support
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Maritrans Operating Partners L.P. Second Supplemental Indenture
Maritrans Capital Corporation
Agreement) so contributed during either such fiscal quarter or the
quarter in which the determination hereunder is being made, and less
the sum of (d) the aggregate amount of all capital expenditures made
by the Partnership during the fiscal quarter for which the
determination is being made hereunder to the extent such capital
expenditures are not funded out of proceeds from any borrowing or from
the sale of any additional limited partnership interests or any
additional capital contributions or insurance proceeds or a withdrawal
of "Capital Construction Funds" of a Subsidiary and (e) an amount
equal to 25% of the aggregate amount of principal required to be paid
in the Four Quarter Period of the Partnership next following such
fiscal quarter on all Notes outstanding on the first day of such Four
Quarter Period and an amount equal to 50% of the aggregate amount of
interest required to be paid in the Two Quarter Period of the
Partnership next following such fiscal quarter on all Notes
outstanding on the first day of such Two Quarter Period; provided,
that for purposes of this definition (i) interest payable during
future periods on Indebtedness with a variable rate or an interest
rate which can be reset shall be computed at the interest rate in
effect as of the date of determination hereunder and (ii) the fiscal
quarter of the Partnership ending June 30, 1987 shall begin on the
Closing Date.
"Net Cash Distributable to Partners" for any fiscal quarter of
a fiscal year shall mean the Net Cash Available to Partners for such
fiscal quarter less in the case of the first, second and third fiscal
quarters of such fiscal year, the following amount specified as to such
fiscal quarter (but not less than zero):
(i) for the first fiscal quarter of such fiscal year, an
amount equal to 50% of the Quarterly Available Net Cash for such fiscal
quarter,
(ii) for the second fiscal quarter of such fiscal year, an
amount equal to 40% of the sum of the Quarterly Available Net Cash for
the first and second fiscal quarters of such fiscal year, and
(iii) for the third fiscal quarter of such fiscal year, an
amount equal to 25% of the sum of the Quarterly Available Net Cash for
the first, second and third fiscal quarters of such fiscal year.
"Quarterly Available Net Cash" for a fiscal quarter shall mean
the amount determined in subparagraph (2) of the definition of Net Cash
Available to Partners for such fiscal quarter.
Section 1.2. Amendment to Section 4.9. Section 4.9 of the Indenture is
hereby amended by restating Section 4.9 to read as follows:
Section 4.9. Distributions to Partners of the Partnership. The
Partnership will not, and will not permit any Subsidiary to, make any
distribution of cash or other Property of the Partnership or its Subsidiaries to
partners of the Partnership in respect of their partnership interests in the
Partnership, except that once during each fiscal quarter of the Partnership
commencing with the fiscal quarter ending September 30, 1987, the Partnership
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Maritrans Operating Partners L.P. Second Supplemental Indenture
Maritrans Capital Corporation
may make a distribution in cash to such partners in an amount not in excess of
the Net Cash Distributable to Partners for the fiscal quarter of the Partnership
next preceding the fiscal quarter in which such distribution shall occur;
provided, that no such distribution shall be made at any time when a Default or
Event of Default shall have occurred and shall then be continuing.
Section 1.3. Amendment to Section 4.14. Section 4.14(a) of the
Indenture is hereby amended by restating Section 4.14(a) to read as follows:
"(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"
SECTION 2. MISCELLANEOUS PROVISIONS.
Section 2.1. Defined Terms. All terms used in this Second Supplement
which are defined in the Indenture, as hereby amended, are used herein as so
defined.
Section 2.2. 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 Second Supplement, this
Second Supplement shall govern.
Section 2.3. Counterparts. This Second 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 2.4. 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 Second Supplement, but nevertheless all such references shall be deemed to
include this Second Supplement unless the document or instrument, as the case
may be, shall otherwise require.
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Maritrans Operating Partners L.P. Second Supplemental Indenture
Maritrans Capital Corporation
IN WITNESS WHEREOF, the Partnership, the Company and the Trustee have
each caused this Second 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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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ATTEST: Its Vice President
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Controller
MARITRANS CAPITAL CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
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[CORPORATE SEAL] Its President
ATTEST:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Secretary
WILMINGTON TRUST COMPANY,
as Trustee
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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[SEAL] Its Financial Services Officer
ATTEST:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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