Exhibit
4.1.2


 


 


SUPPLEMENTAL INDENTURE NO. 1


 


                THIS
SUPPLEMENTAL INDENTURE NO. 1, dated as of December ___, 2003 (this
“Supplement”), among JPMORGAN CHASE BANK, a New York banking corporation (the
“Indenture Trustee”), K-SEA TRANSPORTATION PARTNERS L.P., a Delaware limited
partnership (“K-Sea LP”), and K-SEA OPERATING PARTNERSHIP L.P., a Delaware
limited partnership (“K-Sea OLP”).


 


 


RECITALS


 


                WHEREAS:


 


                A.            K-Sea
Transportation LLC, a Delaware limited liability company (“K-Sea LLC”), EW
Holding Corp., a New York corporation (“EW Holding”), and the Indenture Trustee
are parties to that certain Trust Indenture, dated as of June 7, 2002 (the
“Indenture”);


 


                B.            As set forth in the Recital to the
Indenture, K-Sea LLC and EW Holding have previously authorized the issuance of
obligations designated “United States Government Guaranteed Ship Financing
Obligations, K-Sea Series 2002-1, 2002-2, 2002-3 and 2002-4” (the “Original
Obligations”) in an aggregate principal amount of Forty Million Four Hundred
Forty-One Thousand United States Dollars ($40,441,000) (generally referred to
as the “Title XI Financing”), guaranteed by the United States of America (the
“United States”), represented by the Secretary of Transportation, acting by and
through the Maritime Administrator (the “Secretary”), to finance a portion of
the cost of construction of DBL 101 (O.N. 1119760), DBL 81 (O.N. 1132231), DBL
82 (O.N. 1137538), and Hull No. 422, to be known as DBL 102 (the “Vessels” and
each, a “Vessel”);


 


                C.            With
the Secretary’s consent and in connection with the initial public offering of
common units representing limited partner interests in K-Sea LP on the date
hereof and all transactions and agreements contemplated or incidental thereto,
including the execution of the Contribution, Conveyance and Assumption
Agreement dated as of the date hereof (the “Contribution Agreement”) by and
among K-Sea LLC, EW Holding, K-Sea Acquisition Corp., a Delaware corporation
(“K-Sea Acquisition”), and K-Sea Transportation Corp., a New York corporation
(“K-Sea Transportation”, and collectively with K-Sea LLC, EW Holding, and K-Sea
Acquisition, the “Original K-Sea Entities”), K-Sea Investors L.P., a Delaware
limited partnership, K-Sea LP and K-Sea OLP and the performance of the terms
and transactions set forth in the Contribution Agreement (collectively, the
“MLP 


 

















 


Transaction”), by
assumption, merger and operation of law K-Sea LP and K-Sea OLP simultaneously
herewith have succeeded to substantially all of the interests and obligations
of the Original K-Sea Entities, including, without limitation, the Original
Obligations, the documents and instruments referenced in the Secretary’s action
dated December __, 2003 by the Secretary with respect to the MLP Transaction
(the “Secretary’s Consent”), and the Vessels;


 


                D.             In accordance with the terms of
Section 10.01 of the Indenture, the parties hereto wish to effect the execution
and delivery of this Supplement and the surrender and cancellation of the
Original Obligations in exchange for new Obligations for which K-Sea LP and
K-Sea OLP are the obligors (the “Obligations”); and


 


                E.             The Indenture Trustee, K-Sea LP and
K-Sea OLP wish to amend and supplement the Indenture in order to reflect the
transactions described above and to obtain the consent of the United States,
acting by and through the Secretary (as required by the terms of Article X of
the Indenture) to such transactions.


 


NOW, THEREFORE, in consideration of the premises and
the mutual covenants herein contained, and of other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto hereby agree as follows:


 


 


ARTICLE I.           Assumption
and Consent


 


                SECTION 1.  Assumption
of Indenture.  In accordance with
the terms of Articles VIII and X of the Indenture, each of K-Sea LP and K-Sea
OLP, jointly and severally, hereby expressly assumes all of the respective
former, present and future obligations, duties, right, title and interest of
K-Sea LLC and EW Holding in and to the Indenture, as amended and supplemented hereby,
together with all documents and instruments evidencing any such obligations,
duties, right, title and interest thereto, and each of K-Sea LP and K-Sea OLP
expressly agrees, jointly and severally, specifically to perform all of the
respective agreements and obligations of K-Sea LLC and EW Holding under the
Indenture, as amended and supplemented hereby. 
For the avoidance of doubt, pursuant to Section 8.01(a)(1) of the
Indenture, each of K-Sea LP and K-Sea OLP expressly assumes and agrees to
perform all of the obligations of K-Sea LLC and EW Holding with respect to the
payment of the principal and interest (and premiums, if any) of the Outstanding
Obligations, as determined by the Secretary and set forth below, relating to
the Vessels and expressly assumes the duties of K-Sea LLC and EW Holding under
the Indenture.


 


                SECTION 2.  Secretary’s
Consent.  The United States, acting
through the Secretary, (i) having by the Secretary’s Consent acknowledged,
consented and 


 


 


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agreed to the MLP
Transaction, (ii) having by the Secretary’s Consent acknowledged, consented and
agreed that K-Sea LP and K-Sea OLP and their direct and indirect subsidiaries,
together with each of the Original K-Sea Entities, may enter into such
documents, agreements or instruments that are reasonably related to the MLP
Transaction, and (iii) having granted all consents necessary to be obtained
under the Title XI Financing, including without limitation, the Secretary’s
consent as required under Section 10.05 of the Indenture, hereby (a) releases
each of K-Sea LLC and EW Holding from the Indenture, and (b) agrees that from
and after the date hereof the Indenture shall be supplemented in all respects
by this Supplement.


 


 


ARTICLE
II.         Cancellation and Reissuance of Obligations


 


                SECTION
1.  Discharge, Release,
Surrender and Cancellation of Original Obligations.  In accordance with the terms of Section
8.01(b) of the Indenture, the parties hereto expressly discharge and release
K-Sea LLC and EW Holding from any and all obligations relating to the Original
Obligations.  Concurrently with the
insurance and delivery of the Obligations pursuant to Section 2 below, the
Indenture Trustee shall cancel the Original Obligations issued by K-Sea LLC and
EW Holding and currently held by the Indenture Trustee for the benefit of the
Obligees.


 


                SECTION
2.  Issuance of
Obligations.


 


(a)           As
set forth in the Secretary’s Consent and in accordance with Section 8.01 of the
Indenture, concurrently with the execution and delivery of this Supplement each
of K-Sea LP and K-Sea OLP shall, jointly and severally, in exchange for the
Original Obligations, execute and issue Obligations of the same Series, in the
same principal amounts and payable to the same Person(s) as the Original
Obligations.  As set forth in the
Secretary’s Consent and in accordance with Article I of the Authorization
Agreement, the Indenture Trustee shall (1) cause the Guarantees of the
Secretary, the facsimile signature of the
Maritime Administrator or the Acting Maritime Administrator, and the facsimile
seal of the U.S. Department of Transportation to be imprinted upon each of the
Obligations issued in accordance with the terms hereof and Article II and
Article III of the Indenture, and (2) authenticate and deliver such
Obligations, in exchange for the Original Obligations surrendered and
cancelled, in the name of the successor partnerships, K-Sea LP and K-Sea OLP,
jointly and severally.


 


ARTICLE
III.        Amendments


 


                The
Indenture hereby is amended as follows:


 


 


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SECTION 1.  Rules
of Interpretation and Definitions.


(a)           For
all purposes of this Supplement and the Indenture as supplemented hereby,
unless otherwise expressly provided or unless the context otherwise requires,
the terms used herein and defined in Schedule A to this Supplement or by
reference therein to other instruments shall have the respective meanings
stated in said Schedule A or such other instruments.


(b)           All
references to the Indenture contained in any documents delivered under or
pursuant to the Indenture, including without limitation Schedule A to the
Indenture, shall be construed as references to the Indenture as supplemented
and amended by the terms of this Supplement, as it may be further amended,
modified or supplemented from time to time.


                (c)           All
references in the General Provisions to the Indenture to “Shipowner”,
“Shipowner’s”, “EW Holding” or “K-Sea” shall be deemed to mean K-Sea LP and
K-Sea OLP, jointly and severally, as joint and several successors in interest
by merger and operation of law to K-Sea LLC and EW Holding, provided, however,
where the context refers to the Shipowner solely in its capacity as shipowner
of any Vessel, such reference shall be deemed to mean and refer to K-Sea OLP
alone.


                SECTION 2.  Representations
and Warranties.  K-Sea LP and K-Sea
OLP make the representations and warranties made by K-Sea LLC and EW Holding
set forth in the Indenture.


                SECTION
3.  Additions, Deletions
and Amendments to the General Provisions of the Indenture.


 


                The
following additions, deletions and amendments are hereby made to Exhibit 1 to
the Indenture:


 


(a)           Concerning Notices.  Subject to the provisions of Section 13.01
of Exhibit 1 to the Indenture, any notice, request, demand, direction, consent,
waiver, approval or other communication to be given to a party hereto or the
Secretary shall be deemed to have been sufficiently given or made when
addressed to:


The Indenture Trustee as:


JPMorgan Chase Bank

4 New York Plaza, 15th Floor


New York, New York 10004


Attention: Institutional Trust Services


 


 


4

















 


 


K-Sea LP and K-Sea OLP as:


K-Sea Transportation Partners L.P.

K-Sea Operating Partnership L.P.

Attn.: Chief Financial Officer

3245 Richmond Terrace

Staten Island, NY 10303


The Secretary as:


SECRETARY OF TRANSPORTATION

c/o Maritime Administrator

Department of Transportation 

400 Seventh Street, SW

Washington, D.C. 20590


                (b)           Concerning Schedule A.  Schedule A to the Indenture is hereby amended
by deleting it in its entirety and substituting the attached Schedule A
therefor.


 


ARTICLE
IV.        Miscellaneous


 


SECTION
1.  Rules of Interpretation and Definitions. 
For all purposes of this Supplement, unless otherwise expressly provided
or unless the context otherwise requires, all references herein to Articles,
Sections or other subdivisions, unless otherwise specified, refer to the
corresponding Articles, Sections and other subdivisions of the Indenture.  Unless otherwise expressly provided herein,
all capitalized terms used herein shall have the meaning specified thereto in
the attached Schedule A.


SECTION
2.  Concerning Parties.  K-Sea LP and K-Sea OLP are hereby made
parties to the Indenture for all purposes of the obligations, duties, right,
title and interest set forth therein with the same effect as if K-Sea LP and
K-Sea OLP had been named therein.


SECTION
3.  Continuation in Effect.  Except as added, deleted or amended by this
Supplement, all of the provisions of the Indenture shall otherwise remain in
full force and effect.


SECTION
4.  GOVERNING LAW.  THIS SUPPLEMENT AND EACH OBLIGATION SHALL BE
CONSTRUED, ENFORCED, AND GOVERNED BY THE LAWS OF THE UNITED STATES OF AMERICA,
BUT TO THE EXTENT THEY ARE INAPPLICABLE, THEN BY THE LAWS OF THE STATE OF NEW
YORK OF THE UNITED STATES OF AMERICA WITHOUT REGARD TO ITS 


 


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CONFLICT
OF LAWS PROVISIONS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).


SECTION
5.  Execution of Counterparts.  This Supplement may be executed in any
number of counterparts.  All such
counterparts shall be deemed to be originals, and shall constitute but one and
the same instrument.


SECTION
6.  Trustee Not Responsible.  The Indenture Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Supplement or for or in respect of the recitals contained
herein, all of which are made solely by K-Sea LP and K-Sea OLP.


 


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IN WITNESS WHEREOF, this Supplemental Indenture No. 1 has been executed
by the parties hereto as of the day and year first above written.


 


 


	
   

  	
  K-SEA TRANSPORTATION PARTNERS L.P., by its 

  
	
   

  	
  general partner K-Sea General Partner L.P., by its
  general

  
	
   

  	
  partner K-Sea General Partner GP LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  BY:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


 


	
   

  	
  K-SEA OPERATING PARTNERSHIP L.P., by its general

  
	
   

  	
  partner K-Sea OLP GP, LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  BY:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


	
   

  	
  JPMORGAN CHASE BANK,

  
	
   

  	
  as Indenture Trustee

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  BY:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


 


 


 


 


 


CONSENTED AND AGREED TO BY:


 


UNITED STATES OF AMERICA,


Secretary of Transportation


Maritime Administrator


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  	
  Maritime Administration