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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 30, 1998
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HUNTWAY PARTNERS, L.P.
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(Exact name of registrant as specified in its charter)
Delaware 36-3601653
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(State of other jurisdiction (IRS Employer Identification Number)
of incorporation)
1-10091
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(Commission File Number)
25129 The Old Road, Suite 322, Newhall, California 91381
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (805) 286-1582
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Page 1 of 4
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
See the Index to Exhibits attached hereto.
Page 2 of 4
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
HUNTWAY PARTNERS, L.P.
(Registrant)
Dated: March 30, 1998 By: /s/ Warren J. Nelson
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Warren J. Nelson
Executive Vice President and Chief
Financial Officer
Page 3 of 4
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INDEX TO EXHIBITS
Exhibit
Number
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10.1 First Supplemental Indenture dated as of October 31, 1997 between the
Partnership and Fleet National Bank, relating to the Partnership's 12%
Senior Secured Notes Due 2005.
10.2 Second Supplemental Indenture dated as of November 30, 1997 between the
Partnership and Fleet National Bank, relating to the Partnership's 12%
Senior Secured Notes Due 2005.
10.3 First Supplemental Indenture dated as of October 31, 1997 between the
Partnership and IBJ Schroder Bank & Trust Company, relating to the
Partnership's Junior Subordinated Notes Due 2005.
10.4 First Supplemental Indenture dated as of January 14, 1998 between the
Partnership and State Street Bank & Trust Company, as trustee, relating to
the Partnership's 12% Senior Subordinated Secured Convertible Notes Due
2007.
10.5 Third Amendment to Letter of Credit and Reimbursement Agreement dated as
of November 30, 1997 between the Partnership, Sunbelt Refining Company,
L.P. and Bankers Trust Company.
Page 4 of 4
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Exhibit 10.1
EXECUTION COPY
(Senior)
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") dated as of
October 31, 1997 between Huntway Partners, L.P., a Delaware limited partnership
(the "Company"), and Fleet National Bank, as trustee (the "Trustee").
PRELIMINARY STATEMENT
The Company and the Trustee are parties to an Amended and Restated
Collateralized Note Indenture (the "Existing Indenture") dated as of December
12, 1996.
Pursuant to a Sequencing and Amendatory Agreement dated as of October 31,
1997 among the Company and numerous other parties, including the Trustee, the
Company and all of the Holders under the Existing Indenture have agreed to the
amendments to the Existing Indenture hereinafter set forth, and have
acknowledged and agreed that the signatures of such Holders thereto constitute
a consent, by Act of such Holders pursuant to Section 104 of the Existing
Indenture, to amend the Existing Indenture as hereinafter set forth.
Pursuant to Section 803 of the Existing Indenture, the Trustee has
received an Opinion of Counsel stating that the execution of this Supplemental
Indenture is authorized or permitted by the Existing Indenture.
Accordingly, pursuant to Section 802 of the Existing Indenture, the
Company and the Trustee are entering into this Supplemental Indenture.
The Company and the Trustee hereby agree as follows:
1. Amendments to the Existing Indenture.
The Existing Indenture is amended as follows:
(a) Definitions.
(i) The following definitions contained in Section 101 of the
Existing Indenture are restated to read as follows:
"Collateral Agent" means United States Trust Company of New York
(or its successor), the entity named in the Intercreditor Agreement
as collateral agent under this Indenture, the Letter of Credit
Agreement and the Senior Subordinated Indenture.
"Common Units" means common stock of the obligor on the Securities;
except that so long as Huntway remains the Company, "Common Units"
means units
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representing a fractional part of the partnership interests of the
limited partners in the Huntway Partnership Agreement.
"Intercreditor Agreement" means, notwithstanding the meaning set
forth in the Preliminary Statement of this Indenture, the Amended
and Restated Intercreditor and Collateral Trust Agreement dated as
of December 12, 1996 among the Trustee, the Collateral Agent, the
Holders and Bankers Trust, as issuer of letters of credit, as such
agreement may be amended, amended and restated, supplemented or
otherwise modified from time to time.
"Restricted Junior Payment" means any distribution, direct or
indirect, whether in cash or other property on account of (i) the
units of ownership in or capital stock of the Company or any other
equity ownership interest in the Company or dividend, distribution
or similar payment, redemption, purchase, retirement or other
acquisition for value, direct or indirect, of any units of
ownership in or capital stock of the Company or any other equity
ownership interest in the Company, (ii) the Convertible Notes for
the payment or prepayment of principal or the redemption, purchase,
retirement or defeasance with respect to such securities, (iii) the
Junior Subordinated Debentures for the payment or prepayment of
principal or interest or the redemption, purchase, retirement,
defeasance, sinking fund or similar payment with respect to such
securities (except for the payment of interest in the form of
securities in the same form and tenor as the Junior Subordinated
Debentures pursuant to Section 307(a) of the Junior Subordinated
Debenture Indenture), and (iv) warrants, options or other rights to
acquire units of ownership in or capital stock of the Company in
order to retire, or to obtain the surrender of, such securities.
(ii) The following definitions are added to Section 101 of the
Existing Indenture:
"Anticipated Merger" means the merger of Huntway into a corporation
organized and existing under the laws of the State of Delaware that
has conducted no business and incurred no liabilities solely for
the purpose of changing the form in which Huntway's business is
conducted.
"Convertible Notes" means the 9-1/4% Senior Subordinated
Secured Convertible Notes due 2007 issued by the Company under the
Senior Subordinated Indenture.
"Huntway" means Huntway Partners, L.P., a Delaware limited
partnership.
"LOC Bank" means the issuer of the letters of credit issued
under the Letter of Credit Agreement.
"Senior Subordinated Indenture" means the Indenture dated as of
October 15, 1997 between the Company and State Street Bank and
Trust Company, as trustee, as from time to time amended, restated,
supplemented or otherwise modified.
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(b) Money for Security Payments to be Held in Trust. Section
403 of the Existing Indenture is amended by inserting the words ", as
such Agreement is amended, restated or modified from time to time" after the
words "New York" in the last line of the first paragraph of such Section.
(c) Maintenance of Existence. Section 404 of the Existing
Indenture is amended by substituting the words "partnership or
corporate existence, as the case may be" for the words "partnership existence"
in the second line of such Section.
(d) Limitation on Indebtedness. Section 406 of the Existing
Indenture is amended by inserting the following new paragraph (k),
redesignating current paragraphs 406(k) and (l) as 406(l) and (m),
respectively, and replacing the reference to "(k)" in new paragraph 406(m) with
"(l)":
(k) The Company may become and remain liable with respect to
the Indebtedness under the Senior Subordinated Indenture;
(e) Limitation on Liens. Section 410 of the Existing Indenture
is amended by inserting the following new paragraph (h):
(h) Liens securing obligations under the Senior Subordinated
Indenture.
(f) Transactions with Partners and Affiliates. Section 414 of the
Existing Indenture is amended by (i) inserting the words "or capital stock of"
after the words "interests in" in the fourth line of such Section; and (ii)
inserting the words "or capital stock issued to such Person in exchange for
such Common Units pursuant to the Anticipated Merger" after the word "Plan" in
the last line of such Section.
(g) Limitation on Consolidated Capital Expenditures. Section
418 of the Existing Indenture is amended by restating the first
paragraph of such Section to read as follows:
The Company will not and will not permit any of its
Subsidiaries to make, in the aggregate, Consolidated Capital
Expenditures in an amount in excess of $2,500,000 during
1997, in excess of $3,000,000 during 1998 or in excess of
$1,250,000 during any subsequent calendar year.
(h) Fundamental Changes Only on Certain Terms. Section 419 of the
Existing Indenture is amended by (A) inserting the words "(except pursuant to
the Anticipated Merger)" after the word "Partners" in the eighth line of such
Section; (B) inserting the words "prior to the Anticipated Merger" before the
word "allow" in the eighth line of such Section and before the word "add" in
the ninth line of such Section; (C) inserting the following as a new subsection
(d) and relettering existing subsection (d) as subsection (e): "(d) the Company
may effect the Anticipated Merger; and"; and (D) inserting the following text
at the end of Section 419:
"Upon any consolidation or merger of the Company or any sale,
lease, conveyance or other disposition of all or substantially all
of the assets of the Company in accordance with this Section 419,
the successor formed by such consolidation or into or with which
the Company is merged or to which such sale, lease, conveyance or
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other disposition is made, as the case may be, shall succeed to,
and be substituted for, and may exercise every right and power of,
the Company under this Indenture and the Securities with the same
effect as if such successor person had been named as the Company
herein or therein.
(i) Other Amendments. Section 424 of the Existing Indenture is
amended by inserting the words "or the Senior Subordinated Indenture"
after the word "Indenture."
(j) Replacement Letter of Credit. Section 425 of the Existing
Indenture is restated to read in its entirety as follows:
Upon the expiration or termination of the commitment of Bankers Trust
Company to issue letters of credit under the Letter of Credit Agreement, the
Company shall enter into a new letter of credit facility (the "Replacement
Letter of Credit Agreement") providing for a commitment to issue letters of
credit used to support purchases of crude oil and to support hedging
obligations in an aggregate stated amount of at least $17,500,000 but not to
exceed $22,000,000 at any one time for a period of not less than 12 months from
the effective date thereof. The Company will not, without the consent of the
Requisite Holders, amend any Replacement Letter of Credit Agreement if any such
amendment would shorten the term of, or increase to above $22,000,000
(exclusive of the amount of the IDB Letter of Credit) or decrease the amount of
credit under, the Letter of Credit Agreement or such Replacement Letter of
Credit Agreement.
(k) Events of Default Section 501(e)of the Existing Indenture
is amended by inserting the words "(or, following the Anticipated
Merger, stockholders)" after the word "partners" each time it appears and by
inserting the words "(or, following the Anticipated Merger, capital stock)"
after the words "units of ownership"; Section 501(f) is amended by inserting
the words "(or, following the Anticipated Merger, stockholders)" after the word
"partners" each time it appears; and the text in Section 501(l) prior to the
semi-colon therein is replaced with the following words: "the General Partner
and the Special General Partner shall cease to be the sole general partners of
the Company, other than as a result of the Anticipated Merger".
(l) Acceleration of Maturity. Section 502 of the Existing
Indenture is amended by inserting after the words "Carl O. Roark)" the
words ", and to the trustee under the Senior Subordinated Indenture (at
Corporate Trust Department, Two International Place, 4th Floor, Boston,
Massachusetts 02110, Attention: Susan Freedman)".
(m) Application of Money Collected. Section 506 of the
Existing Indenture is amended by inserting the words "Article 12 of the
Senior Subordinated Indenture or" prior to the words "Article Ten".
2. Effect on Existing Indenture. Except as expressly amended
by this Supplemental Indenture, the Existing Indenture shall remain in
full force and effect.
3. Indenture Trustee. The Trustee accepts the amendment of the
Indenture effected by this First Supplemental Indenture and agrees to
execute the trust created by the Indenture as hereby amended, but only upon the
terms and conditions set forth in the Indenture, including the terms and
provisions defining and limiting the liabilities and responsibilities of the
Trustee, which
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terms and provisions shall in like manner define and limit its
liabilities and responsibilities in the performance of the trust created by the
Indenture as hereby amended, and, without limiting the generality of the
foregoing, the Trustee has no responsibility for the correctness of the
recitals of fact herein contained which shall be taken as the statements of the
Company, and makes no representations as to the validity or sufficiency of this
First Supplemental Indenture and shall incur no liability or responsibility in
respect of the validity thereof.
4. Counterparts. This Supplemental Indenture may be signed in
counterparts with the same effect as if the signatures to each counterpart were
upon a single instrument, and all such counterparts together shall be deemed an
original of this Supplemental Indenture.
IN WITNESS WHEREOF, we have set our hands as of the day and year first
above written.
HUNTWAY PARTNERS, L.P.,
a Delaware limited partnership
By HUNTWAY MANAGING PARTNER, L.P.,
its Managing General Partner
By The Huntway Division of
Reprise Holdings, Inc.,
its Sole General Partner
By: /s/ Warren J. Nelson
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Name: Warren J. Nelson
Title: Executive Vice President and
Chief Financial Officer
FLEET NATIONAL BANK
a national banking association,
as Trustee
By: /s/ Susan Freedman
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Name: Susan Freedman
Title: Authorized Signatory
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EXHIBIT 10.2
EXECUTION COPY
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HUNTWAY PARTNERS, L.P.,
as Issuer
TO
FLEET NATIONAL BANK,
as Trustee
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SECOND SUPPLEMENTAL
INDENTURE
Dated as of November 30, 1997
Supplement to Amended and Restated Collateralized Note Indenture
Dated as of December 12, 1996
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SECOND SUPPLEMENTAL INDENTURE (this "Second Supplemental Indenture"),
dated as of November 30, 1997 between Huntway Partners, L.P., a Delaware
limited partnership (the "Company") and Fleet National Bank, as trustee (the
"Trustee")
PRELIMINARY STATEMENTS
The Company and Sunbelt Refining Company, L.P., a Delaware limited
partnership ("Sunbelt"), have heretofore executed and delivered to the Trustee
a certain Amended and Restated Collateralized Trust Indenture dated as of
December 12, 1996 (the "Original Indenture") providing for the issue of the
Company's $14,400,000 principal amount of 12% Senior Secured Notes (Other) due
2005 (the "Senior Notes (Other)") and $9,100,000 principal amount of the
Company's 12% Senior Secured Notes (Sunbelt IDB) due 2005 (the "Senior Notes
(Sunbelt IDB)"). The Indenture has heretofore been amended by a First
Supplemental Indenture dated as of October 31, 1997, by and among the parties
hereto (the Original Indenture as so amended is referred to herein as the
"Indenture"). All terms in this Second Supplemental Indenture that are defined
in the Indenture shall have the same meanings assigned to them in the
Indenture.
Section 802 of the Indenture provides that a supplemental indenture may
be entered into by the Company and the Trustee with the consent of Requisite
Holders to change or modify any provision of the Indenture, except in certain
circumstances set forth in Section 802 in which the consent of the Holder of
each Outstanding Security affected thereby is required.
The Company and the Holders have agreed to amend the Indenture in order
to (i) provide for the issuance of New Senior Notes (Sunbelt IDB) under the
Indenture in the aggregate principal amount of $9,100,000, (ii) provide that
the interest rate (prior to default) payable on the portion of the New Senior
Notes (Sunbelt IDB) that is not payable on demand shall be 0% per annum, (iii)
provide that the maturity date of the New Senior Notes (Sunbelt IDB) shall be
December 31, 2005, (iv) provide that, upon the occurrence of any unreimbursed
draw under the IDB Letter of Credit, a portion of the New Senior Notes (Sunbelt
IDB) in the amount of such unreimbursed draw shall automatically become payable
on demand, (v) provide that the interest rate (prior to default) payable on the
portion of the New Senior Notes (Sunbelt IDB) that has become payable on demand
shall be the higher of 12% per annum and the prime rate plus 4% per annum, (vi)
modify the provisions regarding the application of CDSA to the redemption of
the Senior Notes, (vii) provide for the exchange of all Existing Senior Notes
(Sunbelt IDB) for New l Senior Notes (Sunbelt IDB), and (viii) modify certain
other covenants, terms and provisions of the Indenture as set forth herein.
The Company has duly authorized the creation of an issue of its New
Senior Notes (Sunbelt IDB) of substantially the tenor and amount hereinafter
set forth, and to provide therefor, the Company has duly authorized the
execution and delivery of this Second Supplemental
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Indenture. All things necessary have been done to make such New Senior Notes
(Sunbelt IDB), when executed by the Company and authenticated and delivered
hereunder and duly issued by the Company, the valid obligations of the Company
and to make this Second Supplemental Indenture a valid and binding agreement
of the Company and supplement to the Indenture. All covenants and agreements
made by the Company herein are for the equal and proportionate benefit and
security of the Holders of Securities. The Company is entering into this
Second Indenture and the Trustee is accepting this Second Supplemental
Indenture for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged.
Pursuant to Section 803 of the Indenture, the Trustee has received an
Opinion of Counsel stating that the execution of this Second Supplemental
Indenture is authorized or permitted by the Indenture.
NOW, THEREFORE, for and in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency which are hereby
acknowledged. the parties hereto do hereby mutually covenant and agree as
follows:
PART I: AMENDMENTS TO DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
SECTION 1. Section 101 of the Indenture is hereby amended by adding
thereto the following definition of "Existing Senior Notes (Sunbelt IDB)",
which shall be inserted in proper alphabetical order:
"Existing Senior Notes (Sunbelt IDB)" means Company's 12% Senior Secured
Notes (Sunbelt IDB) due 200S issued and outstanding pursuant to this Indenture
prior to the Second Supplemental Indenture Effective Date.
SECTION 2. Section 101 of the Indenture is hereby amended by adding
thereto the following definition of "Second Supplemental Indenture Effective
Date", which shall be inserted in proper alphabetical order:
"Second Supplemental Indenture Effective Date" means March_, 1998.
SECTION 3. Section 101 of the Indenture is hereby amended by adding the
following definition thereto, which shall be inserted in proper alphabetical
order:
"NEW SENIOR NOTES (SUNBELT IDB) means the Company's Variable Rate
Senior Secured Notes (Sunbelt IDB) due 2005 issued and outstanding
pursuant to this Indenture.
SECTION 4. Section 101 of the Indenture is hereby amended by adding the
following definition thereto, which shall be inserted in proper alphabetical
order:
"Prime Rate" means the rate that Bankers Trust Company announces
from time to
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time as its prime lending rate. as in effect from time to time. The Prime
Rate is a reference rate and does not necessarily represent the lowest or
best rate actually charged to any customer.
SECTION 5. The definition Of "Senior Notes(Sunbelt IDB)" in Section 101 of
the Indenture is hereby amended and restated in its entirety to read as
follows:
"Senior Notes (Sunbelt IDB)" means (i) before the Second Supplemental
Indenture Effective Date, the Existing Senior Notes (Sunbelt IDB) and (ii) on
and after the Second Supplemental Indenture Effective Date, the New Senior
Notes (Sunbelt IDB).
PART II: AMENDMENTS TO TERMS RELATING TO SECURITIES
SECTION 6. Section 202 of the Indenture is hereby amended and restated in
its entirety to read as follows:
"Section 202. Forms of Securities and Certificate of Authentication.
The Senior Notes (Other) and the New Senior Notes (Sunbelt IDB)
shall be in substantially the forms attached hereto as Exhibits C and F.
respectively, and the form of the Trustee's certificate of authentication
shall be in the form provided in such Exhibits, which are incorporated
in, and made a part of, this Indenture.
SECTION 7. Section 301 of the Indenture is hereby amended by deleting the
last paragraph thereof in its entirety and substituting the following
therefor:
"The Interest Rate (prior to default) on the portion of the Senior
Notes (Sunbelt IDB) that is not payable on demand shall be equal to 0.00%
per annum. The Interest Rate (prior to default) on the portion of the
principal amount of the Senior Notes (Sunbelt IDB) that is payable on
demand shall be equal to the higher of (x) 12% per annum and (y) the sum
of the Prime Rate plus 4% per annum (as the Prime Rate is supplied to the
Trustee at least five Business Days prior to each Interest Payment Date).
The Interest Rate (prior to default) on the Senior Notes (Other) shall be
equal to 12% per annum. The Interest Rate in effect with respect to the
Securities is subject to increase as provided in Sections 503 and 5l5.
Notwithstanding the foregoing or the provisions of Sections 503 and 515.
in no event shall the Interest Rate on any of the Securities exceed the
maximum rate permitted by applicable law. The Securities shall be
redeemable as provided in Article Nine.
SECTION 8. SECTION 303 of the Indenture is hereby amended by adding the
following to the end thereof:
"On the Second Supplemental Indenture Effective Date, New Senior Notes
(Sunbelt IDB) in an aggregate original principal amount of $9,100,000
shall be authenticated and delivered under this Indenture in exchange for
all then Outstanding
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Existing Senior Notes (Sunbelt IDB). On the Second Supplemental
Indenture Effective Date, the Company shall pay to the Holders of all then
outstanding Existing Senior Notes (Sunbelt IDB) all unpaid interest
accrued thereon through such date. Such New Senior Notes (Sunbelt IDB)
shall thereupon be 'Senior Notes (Sunbelt IDB)' for all purposes under
this Indenture."
SECTION 9. Section 307(c)(1) of the Indenture is hereby amended and
restated in its entirety to read as follows:
"(1) The principal amount of the Senior Notes shall be due and
payable in full on December 31, 2005, unless payment is required before
that date pursuant to Sections 307(c)(3), 307(d) or 307(e)."
SECTION 10. Section 307(c)(3) of the Indenture is hereby amended and
restated in its entirety to read as follows:
"(3) Upon the occurrence of any Principal Drawing or Interest Drawing
under the IDB Letter of Credit that is not reimbursed by the Company on
the date of such drawing, an aggregate principal amount of the Senior
Notes (Sunbelt IDB) in an amount equal to the amount of such drawing shall
immediately and without further action become payable on demand by the
respective Holders of the Senior Notes (Sunbelt IDB). Upon the occurrence
of an acceleration of the obligations under the Letter of Credit
Agreement, the entire principal amount of the Senior Notes (Sunbelt IDB)
shall immediately and without further action become due and payable;
provided that if after such acceleration, the IDB Letter of Credit expires
or terminates, an aggregate principal amount of the Senior Notes (Sunbelt
IDB) (but not the interest accrued thereon) in an amount equal to the
excess of (x) the aggregate principal amount of the Senior Notes (Sunbelt
IDB) over (y) the aggregate amount of all unreimbursed Principal Drawings
and Interest Drawings under the IDB Letter of Credit shall be cancelled as
of the date of the expiration or termination of the IDB Letter of Credit.
In addition, in the event that the amount available for drawing under the
IDB Letter of Credit shall be permanently reduced (other than as a result
of an unreimbursed drawing thereunder), an aggregate principal amount of
the Senior Notes (Sunbelt IDB) in an amount equal to the amount of such
reduction shall be cancelled. The amount of all obligations under the
Senior Notes (Sunbelt IDB) that shall become payable on demand and the
amount of all Senior Notes (Sunbelt IDB) that shall be cancelled pursuant
to this subsection shall be allocated ratably in accordance with the
outstanding principal amount of the Senior Notes (Sunbelt IDB) without
preference or priority within such Class of Securities. The Company shall
notify the Trustee in writing upon the occurrence of any event described
in this clause (3). The Trustee may assume that no drawing has occurred
under the IDB Letter of Credit and that no Event of Default or
acceleration has occurred under the Leper of Credit Agreement unless and
until the Trustee has received a notice to such effect from the Holder or
Holders of the Senior Notes (Sunbelt IDB) or from the Company. The Holder
or Holders delivering such notice to the Trustee will deliver a copy of
such notice to the Company. However, the failure to deliver such notice to
the Company shall not affect the validity of the notice to the Trustee."
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SECTION 11. Section 307(d) of the Indenture is hereby amended and
restated in its entirety to read as follows:
"(d) The Company shall apply 50% of CDSA for calendar year 1997 to the
payment of the Senior Notes as follows:
(1) Pursuant to Section 409(e), the Company shall deliver to the
Trustee and the Holders on or before March 31, 1998, detailed calculations of
the amount of CDSA for calendar year 1997.
(2) [intentionally omitted].
(3) [intentionally omitted].
(4) The Company shall, on or before March 31, 1998, apply an amount
equal to 50% of the aggregate amount of CDSA for calendar year 1997 to pay
Outstanding principal of the Senior Notes in the manner provided in Section
307(d)(S).
(5) Payments made toward the Outstanding principal amount of the
Senior Notes pursuant to this subsection (d) shall be applied ratably in
accordance with the Outstanding principal amount of the Securities;
provided that if the amount that would otherwise be applied to the payment
of the Outstanding principal of the Senior Notes (Sunbelt IDB) without
giving effect to this proviso would not be an integral multiple of
$100,000, the amount applied to payment of the Outstanding principal of
the Senior Notes (Sunbelt IDB) shall be rounded upward or downward, as the
case may be, to the nearest integral multiple of $100,000, and the amount
of payments to be made toward the Outstanding principal amount of the
Senior Notes pursuant to this subsection (d) remaining after application
to the Senior Notes (Sunbelt IDB) shall be applied to the payment of the
Outstanding principal of the Senior Notes (Other). Together with each
payment of principal on the Senior Notes made pursuant to this subsection
(d), the Company shall pay the unpaid interest on such principal amount
accrued through the date of such payment. All payments made with respect
to interest on or toward the Outstanding principal amount of the
Securities pursuant to this subsection (d) shall be applied ratably within
each Class in accordance with the Outstanding principal amount of the
Securities in such Class without preference or priority of any kind within
such Class to reduce the amount of interest due or the principal owed on
all Securities within such Class."
SECTION 12. Section 310 of the Indenture is hereby amended and
restated in its entirety to read as follows:
"Section 310. [intentionally omitted]."
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PART III. AMENDMENTS TO TRUSTEE PROVISIONS
SECTION 13.
Section 604 of the Indenture is hereby amended by deleting the
reference to the phrase "Exhibits B and C to this Indenture" therefrom and
substituting therefor a reference to the phrase "Exhibits B, C and F to this
Indenture".
PART IV. AMENDMENTS TO SINKING FUND
SECTION 14.
Article Ten of the Indenture is hereby amended by (i) deleting each
reference therein to the phrase "Senior Notes" and substituting therefor a
reference to the phrase "Senior Notes (Other)"; and (ii) deleting the reference
therein to the phrase "Securities Outstanding" and substituting therefor a
reference to the phrase "Senior Notes (Other) Outstanding".
PART V. AMENDMENTS TO EXHIBITS
SECTION 15.
The Indenture is hereby amended by adding thereto a new Exhibit F in
the form of Annex I hereto.
PART VI. MISCELLANEOUS
SECTION 16. No Third Party Beneficiaries.
Nothing in this Second Supplemental Indenture, express or implied,
shall give to any person, other than the parties hereto and their successors
under the Indenture and the Holders of the Securities, any benefit or any legal
or equitable right, remedy or claim under the Indenture.
SECTION 17. Effect on Indenture.
This Second Supplemental Indenture supplements the Indenture and shall
be a part and subject to all the terms thereof. Except as expressly
supplemented hereby, the Indenture shall continue in full force and effect.
SECTION 18. Second Supplemental Indenture Effective Date.
On the Second Supplemental Indenture Effective Date, the Company will
cause each
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of the following actions to be taken:
(i) the Company and Sunbelt shall deliver to Bankers Trust Company
resolutions of its general managing partner authorizing the execution,
delivery and performance of this Second Supplemental Indenture, certified
by the secretary or assistant secretary of the managing general partner of
each of the Company and Sunbelt as of the Second Supplemental Indenture
Effective Date;
(ii) Kirkland & Ellis, counsel to the Company and Sunbelt, shall
deliver to Bankers Trust Company its favorable legal opinion substantially
in the form of Annex II hereto; and
(iii) simultaneously with the effectiveness hereof, the Company
shall issue to Bankers Trust Company a duly authenticated and executed
New Senior Note (Sunbelt IDB) together with a certificate from the
Trustee regarding the authentication thereof in exchange for all Existing
Senior Notes (Sunbelt IDB), and shall pay to Bankers Trust Company all
accrued and unpaid interest on the Existing Senior Notes (Sunbelt IDB).
SECTION 19. Trustee Disclaimer.
The Trustee has accepted the amendment of the Indenture effected by
this Supplemental Indenture and agrees to execute the trust created by the
Indenture as hereby amended, but only upon the terms and conditions set forth
in the Existing Indenture, including the forms and provisions defining and
limiting the liabilities and responsibilities of the Trustee, and without
limiting the generality of the foregoing, the Trustee shall not be responsible
in any manner whatsoever for or with respect to any of the recitals of fact
contained herein, all of which recitals are made solely by the Company, for or
with respect to the validity or sufficiency of this Supplemental Indenture or
any of the terms or provisions hereof and shall incur no liability or
responsibility in respect of the validity thereof.
SECTION 20. Governing Laws.
This Second Supplemental Indenture and the New Senior Notes (Sunbelt
IDB) shall be governed by and construed in accordance with the laws of the
State of New York.
* * * * *
8
<PAGE> 9
This Second Supplemental Indenture may be signed in counterparts with
the same effect as if the signatures to each counterpart were upon a single
instrument, and all such counterparts together shall be deemed an original of
this Second Supplemental Indenture.
IN WITNESS WHEREOF, we have set our hands as of the day and year first
above written.
HUNTWAY PARTNERS, L.P.,
a Delaware limited partnership
By HUNTWAY MANAGING PARTNER, L.P.,
its Managing General Partner
By The Huntway Division of
Reprise Holdings, Inc.,
its Sole General Partner
By:
-------------------------
Name:
Title: President
FLEET NATIONAL BANK, a
National Banking Association,
as trustee
By:
-------------------------
Name:
Title: Authorized Officer
9
<PAGE> 10
The undersigned joins in the execution of this Second Supplemental Indenture
as of the day and year first above written with respect to the provisions of
the "Granting Clause" in the Indenture.
SUNBELT REFINING COMPANY, L.P.,
a Delaware limited partnership
By HUNTWAY PARTNERS, L.P.,
its Sole General Partner
By Huntway Managing Partner, L.P.,
its Managing General Partner
By The Huntway Division of
Reprise Holdings, Inc.,
its Sole General Partner
By:
-------------------------------
Name:_______________
Title: President
10
<PAGE> 1
Exhibit 10.3
EXECUTION COPY
(Junior)
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture")
dated as of October 31, 1997 between Huntway Partners, L.P., a Delaware
limited partnership (the "Company"), and IBJ Schroder Bank & Trust Company, as
trustee (the "Trustee").
PRELIMINARY STATEMENT
The Company and the Trustee are parties to an Amended and
Restated Junior Subordinated Debenture Indenture (the "Existing
Indenture") dated as of December 12, 1996.
Pursuant to a Sequencing and Amendatory Agreement dated as of
October 31, 1997 among the Company and numerous other parties, the
Company and all of the Holders under the Existing Indenture have agreed to the
amendments to the Existing Indenture hereinafter set forth, and have
acknowledged and agreed that the signatures of such Holders thereto constitute
a consent, by Act of such Holders pursuant to Section 104 of the Existing
Indenture, to amend the Existing Indenture as hereinafter set forth.
Pursuant to Section 803 of the Existing Indenture, the Trustee has
received an Opinion of Counsel and Officers' Certificate stating that the
execution of this Supplemental Indenture is authorized or permitted by the
Existing Indenture.
Accordingly, pursuant to Section 802 of the Existing Indenture, the
Company and the Trustee are entering into this Supplemental Indenture.
The Company and the Trustee hereby agree as follows:
1. Amendments to the Existing Indenture.
---------------------------------------------
The Existing Indenture is amended as follows:
(a) Definitions.
(i) The following definitions contained in the Existing
Indenture are amended as follows:
The definition of "Current Market Value" is deleted in its
entirety.
The definition of "Senior Indebtedness" is amended by (i) inserting
the words "and the Convertible Notes" after the word "Securities"
in the fourteenth line of such definition; (ii) inserting the words
"and the Convertible Notes and the Senior Subordinated Indenture"
after the word "Indenture" in the eighteenth line of such
definition; (iii) inserting the words "and the Convertible Notes"
after the word
<PAGE> 2
"Securities" in the twenty-first line of such
definition; (iv) inserting the words "and the Senior Subordinated
Indenture" after the word "Indenture" in the twenty-first line of
such definition; and (v) substituting the words ", the Convertible
Notes or such indentures" for the words "or such indentures" in the
twenty-second line of such definition.
The definition of "Support Agreement" is deleted in its entirety.
The definition of "Unit Valuation Date" is deleted in its entirety.
(ii) The following definitions contained in Section 101 of the
Existing Indenture are restated to read as follows:
"Intercreditor Agreement" means, notwithstanding the meaning set
forth in the Preliminary Statement of this Indenture, the Amended
and Restated Intercreditor and Collateral Trust Agreement dated as
of December 12, 1996 among the Trustee, the Collateral Agent,
Bankers Trust Company, Massachusetts Mutual Life Insurance Company,
Mellon Bank, N.A., as trustee for First Plaza Group Trust,
Oppenheimer & Company, Inc., as agent for itself and certain
affiliated entities, Lindner Growth Fund and Bankers Trust Company,
as issuer of letters of credit, as such agreement may be amended,
restated, supplemented or otherwise modified from time to time.
"Representative" means with respect to the Letter of Credit
Facility, Bankers Trust Company, and with respect to any Senior
Indebtedness arising under the Collateralized Note Indenture and
the Senior Subordinated Indenture, the respective trustee named in
such Indenture.
"Restricted Junior Payment" means any distribution, direct or
indirect, whether in cash or other property on account of (i) the
units of ownership in or capital stock of the Company or any other
equity ownership interest in the Company or dividend, distribution
or similar payment, redemption, purchase, retirement or other
acquisition for value, direct or indirect, of any units of
ownership in or capital stock of the Company or any other equity
ownership interest in the Company, and (ii) warrants, options or
other rights to acquire units of ownership in or capital stock of
the Company in order to retire, or to obtain the surrender of, such
securities.
"Secondary Securities" has the meaning specified in Section 307(f).
"Senior Notes" means the Senior Notes (Other) and the Senior
Notes (Sunbelt IDB) and any securities authenticated and delivered
upon registration of transfer thereof, or in exchange therefor, or
in lieu thereof; provided the principal amount of such
authenticated and delivered securities shall not exceed the
principal amount of the Notes to be exchanged, transferred or
replaced.
"Specified Senior Debt" means (a) any Senior Indebtedness at any
time arising under the Letter of Credit Facility or the Replacement
Letter of Credit Agreement; (b) any Senior Indebtedness at any
time arising under the Collateralized Note Indenture; and
2
<PAGE> 3
(c) any Indebtedness at any time arising under the Senior
Subordinated Indenture. For purposes of this definition, a
refinancing of any Specified Senior Debt shall be treated as
Specified Senior Debt only if it ranks or would rank pari passu with
the Indebtedness refinanced.
(iii) The following definitions are added to Section 101 of the
Existing Indenture:
"Anticipated Merger" means the merger of Huntway into a corporation
organized and existing under the laws of the United States, any
state thereof or the District of Columbia that has conducted no
business and incurred no liabilities solely for the purpose of
changing the form in which Huntway's business is conducted.
"Convertible Notes" means the 9-1/4% Senior Subordinated
Secured Convertible Notes due 2007 issued by the Company under the
Senior Subordinated Indenture.
"Huntway" means Huntway Partners, L.P., a Delaware limited
partnership.
"IDB Letter of Credit" means that certain Irrevocable Letter of
Credit No. S04377 dated October 5, 1988 in the original stated
amount of $9,510,411.00 issued by Bankers Trust Company to the
trustee under that certain Indenture of Trust, dated August 1,
1988, pursuant to which the Sunbelt Bonds were issued.
"LOC Bank" means the issuer of the letters of credit issued under
the Letter of Credit Agreement.
"Senior Subordinated Indenture" means the Indenture dated as of
October 15, 1997 between the Company and State Street Bank and
Trust Company, as trustee, as from time to time amended,
supplemented, restated or otherwise modified.
(b) Title and Terms. Section 301 of the Existing Indenture is
amended by inserting "(a)" after the word "for" in the second line of
such Section and inserting at the end of the first sentence of such Section the
words "and (b) Securities issued in respect of accrued interest pursuant to
Section 307(a) hereof (the "Secondary Securities")".
(c) Denominations. Section 302 of the Existing Indenture is
amended by inserting the words "(except for Secondary Securities)"
after the word "multiples" in the second line of such Section and after the
words "principal amounts" in the fifth line of such Section.
(d) Payment of Interest. Sections 307(a) - (d) of the
Existing Indenture are restated in their entirety to read as follows:
Section 307. Payment of Principal and Interest; Preservation of
Rights.
(a) The Securities shall accrue interest (prior to default)
during each Interest Accrual Period at the Interest Rate specified in
Section 301, and until payment in full of the principal amount of all accrued
interest (including Secondary Securities, as defined in the Collateralized Note
Indenture, issued with respect thereto) on the Senior Securities and until
conversion of the
3
<PAGE> 4
Convertible Notes pursuant to the Senior Subordinated Indenture or
payment in full of the principal amount of all accrued interest on the
Convertible Notes, shall not be paid in cash but shall instead be paid solely
through the issuance on each Interest Payment Date of securities in the same
form and tenor as the Securities with a principal amount equal to the amount of
accrued and unpaid interest. The Company shall notify the Trustee in writing
prior to any redemption in full of the Senior Notes or the Convertible Notes.
After the principal amount of and accrued interest (including Secondary
Securities as defined in the Collateralized Note Indenture, issued with respect
thereto) on the Senior Securities has been paid in full, and the Convertible
Notes have been converted pursuant to the Senior Subordinated Indenture or the
principal amount of and all accrued interest on the Convertible Notes has been
paid in full, interest accrued on each Security shall be due and payable in
cash on each Interest Payment Date until payment in full of each Security. If
the later of final payment in full of the principal amount of and all accrued
interest (including Secondary Securities as defined in the Collateralized Note
Indenture, issued with respect thereto) on the Senior Securities and the
conversion of the Convertible Notes pursuant to the Senior Subordinated
Indenture or payment in full of the principal amount of and all accrued
interest on the Convertible Notes does not fall on an Interest Payment Date,
then interest accrued to the date of such payment shall be paid through
issuance of additional Securities with an aggregate principal amount equal to
such accrued interest and interest accrued after such date shall be paid in
cash, with such issuance and payment to be made on the next Interest Payment
Date. To the extent lawful and enforceable, interest on Defaulted Interest and
interest on the principal amount of Securities shall accrue at the applicable
Interest Rate, as increased pursuant to Sections 503 and 515.
(b) The principal of the Securities shall be payable in
accordance with subsection (c) below but in no event later than the
Stated Maturity thereof as specified in Section 301 unless the unpaid principal
of such Securities becomes due and payable at an earlier date by declaration of
acceleration or otherwise. The Company shall not pay any principal payments
with respect to the Securities until the accrued interest (including Secondary
Securities as defined in the Collateralized Note Indenture) on and the
principal amount of the Senior Securities has been paid in full and the
Convertible Notes have been converted pursuant to the Senior Subordinated
Indenture or the principal amount of and all accrued interest on the
Convertible Notes has been paid in full.
(c) On the Stated Maturity, the Company shall pay to the
Holders the accrued and unpaid interest on and the principal amount of
the Outstanding Securities, provided that the Company shall not pay any
principal with respect to the Securities until the accrued interest (including
Secondary Securities, as defined in the Collateralized Note Indenture) on and
the principal amount of Senior Securities has been paid in full and the
Convertible Notes have been converted pursuant to the Senior Subordinated
Indenture or the principal amount of and all accrued interest on the
Convertible Notes has been paid in full. Payments made toward the Outstanding
principal amount of the Securities pursuant to this subsection (c) shall be
applied ratably without preference or priority of any kind among such
Securities.
(d) Except as set forth above with respect to payment by
issuance of Secondary Securities, interest and principal on each
Security shall be payable by wire transfer to a United States dollar account
maintained by the Holder of such Security at a Depository Institution in the
United States as reflected on the Security Register. Interest and principal on
each Security shall be paid by the Paying Agent from the amounts made available
therefor by the Company. In the case of the Maturity of a Security, the
Trustee, in the name and at the expense of the Company, shall notify the
4
<PAGE> 5
Person entitled thereto at its address as it appears on the Security
Register that such Security is to be paid in full. Such notice shall be mailed
as soon as practicable, and in any event no later than the tenth day prior to
the Maturity of such Security and shall specify the place where such Security
may be presented and surrendered for final payment. The Company, with the
prior consent of the Trustee, may, but shall not be obligated to, adopt any
other method of payment requested by a Holder.
(e) Payment of Interest (307(f)). Section 307(f) of the
Existing Indenture is amended by substituting the parenthetical
language "(including, without limitation, provision by issuance of Secondary
Securities)" for the parenthetical language contained in the second line of
such Section and by restating the proviso at the end of subparagraph (2)
therein as follows:
provided that any such payment made before payment in full of the
principal amount of and all accrued interest (including Secondary
Securities as defined in the Collateralized Note Indenture) on the
Senior Securities and conversion of the Convertible Notes or
payment in full of the principal amount of and all accrued interest
on the Convertible Notes is made solely in kind and not in cash.
(f) Sections 307(g) and 307(h) are hereby deleted in their entirety.
(g) Maintenance of Existence. Section 404 of the Existing
Indenture is amended by substituting the words "partnership or
corporate existence, as the case may be" for the words "partnership existence"
in the second line of such Section.
(h) Limitation on Indebtedness. Section 406 of the Existing
Indenture is amended by (i) inserting the words "and the Convertible
Notes" after the word "Securities" in the third line of such Section, (ii)
deleting the words "in an amount not to exceed $1,500,000" in paragraph 406(f)
and (iii) inserting the following new paragraph (j), redesignating current
paragraph 406(j) as 406(k)and replacing the reference to "(i)" in new paragraph
406(k) with "(j)":
(j) The Company may become and remain liable with respect to
the Indebtedness under the Senior Subordinated Indenture; and
(i) Limitation on Restricted Junior Payments. Section 407 of
the Existing Indenture is amended by inserting the words "and the
Convertible Notes" after the word "Securities" in the third line of such
Section.
(j) Limitation on Restrictions Affecting Subsidiaries. Section
408 of the Existing Indenture is amended by inserting the words "and
the Convertible Notes" after the word "Securities" in the third line of such
Section.
(k) Limitation on Liens. Section 410 of the Existing Indenture
is amended by inserting the following new paragraph (h):
(h) Liens securing obligations under the Senior Subordinated
Indenture.
5
<PAGE> 6
(l) Transactions with Partners and Affiliates. Section 414 of
the Existing Indenture is amended by (i) inserting the words "and the
Convertible Notes" after the word "Securities" in the third line of such
Section; (ii) inserting the words "or capital stock of" after the words
"interests in" in the seventh line of such Section; and (iii) inserting the
words "or capital stock issued to such Person in exchange for such Common Units
pursuant to the Anticipated Merger" after the word "Plan" in the last line of
such Section.
(m) Financial Covenants. Section 415 of the Existing Indenture
is amended by inserting the words "and the Convertible Notes" after the word
"Securities" in the third line of such Section.
(n) Limitation on Investments, Loans and Advances. Section 417
of the Existing Indenture is amended by inserting the words "and the
Convertible Notes" after the word "Securities" in the third line of such
Section.
(o) Limitation on Consolidated Capital Expenditures. Section
418 of the Existing Indenture is amended by restating the first
sentence of such Section to read as follows:
After the Company has paid in full the principal of and all
accrued interest (including Secondary Securities, as defined
in the Collateralized Note Indenture, issued with respect
thereto) on the Senior Securities and the Convertible Notes,
the Company will not and will not permit any of its
Subsidiaries to make, in the aggregate, Consolidated Capital
Expenditures in an amount in excess of $3,000,000 during any
calendar year.
(p) Fundamental Changes Only on Certain Terms. Section 419 of
the Existing Indenture is amended by (i) inserting the words "and the
Convertible Notes" after the word "Securities" in the third line of such
Section; (ii) amending and restating clause (d) thereof to read as follows:
"(d) the Company may effect the Anticipated Merger; and" and (iii) inserting
the following text at the end of such Section:
"Upon any consolidation or merger of the Company or any sale,
lease, conveyance or other disposition of all or substantially all
of the assets of the Company in accordance with this Section 419,
the successor formed by such consolidation or into or with which
the Company is merged or to which such sale, lease, conveyance or
other disposition is made, as the case may be, shall succeed to,
and be substituted for, and may exercise every right and power of,
the Company under this Indenture and the Securities with the same
effect as if such successor person had been named as the Company
herein or therein."
(q) Contingent Obligations. Section 420 of the Existing
Indenture is amended by inserting the words "and the Convertible Notes"
after the word "Securities" in the third line of such Section .
(r) Grant of Lien to Secure Obligations. Section 422 of the Existing
Indenture is amended by (i) inserting the words "and the Convertible Notes"
after the word "Securities" in the
6
<PAGE> 7
fourth line of such Section; and (ii) inserting the words "and
Convertible Notes" after the word "Securities" in the seventh line of such
Section.
(s) Events of Default. Section 501(e) of the Existing
Indenture is amended by inserting the words "(or, following the
Anticipated Merger, stockholders)" after the word "partners" each time it
appears and by inserting the words "(or, following the Anticipated Merger,
capital stock)" after the words "units of ownership"; Section 501(f) is amended
by inserting the words "(or, following the Anticipated Merger, stockholders)"
after the word "partners" each time it appears; and the text in Section 501(l)
prior to the semi-colon therein is replaced with the following words: "the
General Partner and the Special General Partner shall cease to be the sole
general partners of the Company, other than as a result of the Anticipated
Merger".
(t) Acceleration of Maturity. Section 502 of the Existing
Indenture is amended by inserting after the words "Carl O. Roark)" the
words ", and to the trustee under the Senior Subordinated Indenture (at
Corporate Trust Department, Two International Place, 4th Floor, Boston,
Massachusetts 02110, Attention: Susan Freedman)".
(u) Right of Redemption. Section 901 of the Existing Indenture
is amended by inserting the words "and the Convertible Notes" after the
words "Senior Securities" in the third line of such Section.
(v) Approval of Senior Indebtedness. Section 1006 of the Existing
Indenture is amended by inserting the words "and the Convertible Notes and the
Senior Subordinated Indenture" after the word "Indenture" in the fourth line of
clause (i) of such Section.
2. Effect on Existing Indenture. Except as expressly amended by this
Supplemental Indenture, the Existing Indenture shall remain in full force and
effect.
3. Counterparts. This Supplemental Indenture may be signed in
counterparts with the same effect as if the signatures to each
counterpart were upon a single instrument, and all such counterparts together
shall be deemed an original of this Supplemental Indenture.
7
<PAGE> 8
IN WITNESS WHEREOF, we have set our hands as of the day and year first
above written.
HUNTWAY PARTNERS, L.P.,
a Delaware limited partnership
By HUNTWAY MANAGING PARTNER, L.P.,
its Managing General Partner
By The Huntway Division of
Reprise Holdings, Inc.,
its Sole General Partner
By: /s/ Warren J. Nelson
-----------------------------------
Name: Warren J. Nelson
Title: Executive Vice President and
Chief Financial Officer
IBJ SCHRODER BANK & TRUST COMPANY,
as Trustee
By:__________________________________
Name:
Title:
8
<PAGE> 1
Exhibit 10.4
EXECUTION COPY
(Senior Subordinated)
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") dated as of
January 14, 1998 between Huntway Partners, L.P., a Delaware limited partnership
(the "Company"), and State Street Bank and Trust Company, as trustee (the
"Trustee").
PRELIMINARY STATEMENT
The Company and the Trustee are parties to the Indenture dated as of
October 15, 1997 (the "Existing Indenture"), whereby the Company issued
$21,750,000 of its 9 1/4% Senior Subordinated Secured Convertible Notes.
Pursuant to an Amendatory Agreement dated as of January 12, 1998 among the
Company and numerous other parties, the Company and all of the Holders under
the Existing Indenture have agreed to the amendment to the Existing Indenture
hereinafter set forth, and have acknowledged and agreed that the signatures of
such Holders thereto constitute a consent of such Holders pursuant to Section
9.02 of the Existing Indenture, to amend the Existing Indenture as hereinafter
set forth.
Pursuant to Section 9.06 of the Existing Indenture, the Trustee has
received an Opinion of Counsel and Officers' Certificate stating that the
execution of this Supplemental Indenture is authorized or permitted by the
Existing Indenture.
Accordingly, pursuant to Section 9.02 of the Existing Indenture, the
Company and the Trustee are entering into this Supplemental Indenture.
The Company and the Trustee hereby agree as follows:
1. Amendment to the Existing Indenture. The Existing Indenture is amended
by substituting the date "March 31, 1998" for the date "January 15, 1998" in
Section 11.01 of the Existing Indenture.
2. Effect on Existing Indenture. Except as expressly amended by this
Supplemental Indenture, the Existing Indenture shall remain in full force and
effect.
3. Counterparts. This Supplemental Indenture may be signed in
counterparts with the same effect as if the signatures to each
counterpart were upon a single instrument, and all such counterparts together
shall be deemed an original of this Supplemental Indenture.
4. Trustee Disclaimer. The Trustee has accepted the amendment of the
Existing Indenture effected by this Supplemental Indenture and agrees to
execute the trust created by the Indenture as hereby amended, but only upon the
terms and conditions set forth in the Existing Indenture, including the terms
and provisions defining and limiting the liabilities and responsibilities
<PAGE> 2
the Trustee shall not be responsible in any manner whatsoever for or with
respect to any of the recitals of fact contained herein, all of which recitals
are made solely by the Company, or for or with respect to the validity or
sufficiency of this Supplemental Indenture or any of the terms or provisions
hereof and shall incur no liability or responsibility in respect of the
validity thereof.
* * * * *
2
<PAGE> 3
IN WITNESS WHEREOF, we have set our hands as of the day and year first
above written.
Dated as of January 14, 1998 HUNTWAY PARTNERS, L.P.,
a Delaware limited partnership, as Issuer
By: ________________________
By: ________________________
Dated as of January 14, 1998 STATE STREET BANK AND TRUST COMPANY, a
Massachusetts bank and trust company, as
Trustee
By:____________________________________
Name:
Title:
3
<PAGE> 1
Exhibit 10.5
EXECUTION COPY
THIRD AMENDMENT TO
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
This THIRD AMENDMENT TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
(this "Amendment") is dated as of November 30, 1997, and entered into by and
among HUNTWAYPARTNERS,L.P., a Delaware limited partnership ("HUNTWAY"), SUNBELT
REFINING COMPANY, L.P.,A Delaware limited partnership ("SUNBELT"),AND BANKERS
TRUST COMPANY ("BANKERS"), and is made with reference to that certain Letter
of Credit and Reimbursement Agreement dated as of June 22,1993, as amended by
the First Amendment to Letter of Credit and Reimbursement Agreement dated as
of December 12,1996 by and among Huntway, Sunbelt and Bankers, and the
Sequencing and Amendatory Agreement defined below (as so amended, the "LETTER
OF CREDIT AGREEMENT"). Capitalized terms used herein without definition shall
have the same meanings herein as set forth in the Letter of Credit Agreement.
PRELIMINARY STATEMENTS
A. Huntway and Sunbelt have heretofore entered into that certain
Sequencing and Amendatory Agreement dated as of October 31,1997 (the
"Sequencing and Amendatory Agreement") with Lighthouse Investors, L.L.C.,a
Delaware limited liability company, B III Capital Partners, L.P.,a Delaware
limited partnership, Contrarian Capital Fund I, L.P.,a Delaware limited
partnership, Contrarian Capital Fund II, L.P.,a Delaware limited partnership,
Bankers, Massachusetts Mutual Life Insurance Company, Mellon Bank, N.A., as
trustee for First Plaza Group Trust, Oppenheimer & Company., Inc., as agent
for itself and certain affiliated entities and for itself and as Agent for
certain affiliates as listed under the signature of Contrarian Capital
Advisors, L.L.C. on the signature page thereof, The IBM Retirement Plan Trust,
Lindner Growth Fund, Madison Dearborn Partners III and First Chicago Equity
Corporation, United States Trust Company of New York, as Collateral Agent,
State Street Bank & Trust Company, as trustee under the Senior Subordinated
Indenture referred to therein, and Fleet National Bank, as trustee under the
Collateralized Note Indenture. Pursuant to the Sequencing and Amendatory
Agreement, the parties hereto amended the Letter of Credit Agreement and
agreed to enter into certain other amendments to the Letter of Credit
Agreement, as described in Part II of Exhibit F to the Sequencing and
Amendatory Agreement.
B. The parties hereto desire to amend the Letter of Credit Agreement for
the purpose of (i) providing that all draws on the IDB Letter of Credit will
be reimbursed by Huntway on the date such draws are honored, (ii) providing
that any unreimbursed draw on the IDB Letter of Credit will result in a
portion of the Senior Note (Sunbelt IDB) in the principal amount of such
unreimbursed draw becoming payable on demand, (iii) providing that the Company
shall permanently reduce the outstanding principal amount of the IDB Bonds and
the stated amount of the IDB Letter of Credit at
<PAGE> 2
the times and in the amounts set forth herein, (iv) revising the commission
payable in respect of the IDB Letter of Credit. (v) revising certain
definitions, covenants and events of default in the Letter of Credit Agreement
and (vi) making other revisions as set forth herein.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as
follows:
Section 1. AMENDMENTS TO THE LETTER OF CREDIT AGREEMENT
1.1 AMENDMENTS TO ARTICLE I: DEFINITIONS
A. Section 1.01 of the Letter of Credit Agreement is hereby amended by
deleting the definitions of "Commitment Termination Date" and "Senior Notes
(Sunbelt IDB)" therefrom in their entirety and substituting the following
therefor:
"COMMITMENT TERMINATION DATE" means (i) with respect to the IDB
Letter of Credit, requests to extend or renew the IDB Letter of Credit and
fees payable with respect thereto, December 31, 2005 and (ii) with respect to
Letters of Credit, requests to issue, extend or renew Letters of Credit and
fees payable with respect thereto, December 31, 1998.
"SENIOR NOTES (SUNBELT IDB)" means those certain Variable Rate Senior
Secured Notes (Sunbelt IDB) due 2005 issued by Huntway pursuant to the
Collateralized Note Indenture, as amended by the First Supplemental Indenture
thereto dated as of October 31, 1997 and Second Supplemental Indenture
thereto dated as of November 30, 1997 in the original aggregate principal
amount of $9,100,000, and any notes issued in lieu thereof, or in exchange
therefor, as such notes may be amended, restated or otherwise modified from
time to time.
B. Section 1.01 of the Letter of Credit Agreement is hereby further
amended by adding the following definition thereto, which shall be inserted
in proper alphabetical order:
"EXCESS CASH FLOW" means, for any period, the sum of (i) Consolidated
NET INCOME for such period, plus (ii) to the extent such Consolidated Net
Income has been reduced thereby, amortization expense, depreciation expense,
interest not paid in cash, and other non-cash expenses for such period, minus
the sum of (a) the aggregate amount of principal paid in cash during such
period (b) Consolidated Capital Expenditures made during such period that
were permitted under the Collateralized Note Indenture. As used in this
definition, the terms "Consolidated Net Income" and "Consolidated Capital
Expenditures" have the
2
<PAGE> 3
meanings assigned to thereto in the Collateralized Note Indenture' as in
effect on November 1, 1997."
1.2 AMENDMENTS TO ARTICLE II: AMOUNT AND TERMS OF LETTERS OF CREDIT
A. Section 2.01B(ii) of the Letter of Credit Agreement is hereby amended
by deleting it in its entirety and substituting the following therefor
"(ii) Bankers agrees to extend the Stated Termination Date of the IDB
Letter of Credit from time to time from the Effective Date to and excluding
the Commitment Termination Date in accordance with the terms thereof and
hereof (the 'IDB Commitment'); provided that in no event shall Bankers amend
the IDB Letter of Credit in a manner that would result in the IDB Letter of
Credit having (x) a Stated Termination Date later than the Commitment
Termination Date or (y) a Stated Termination Date more than 9 months after
the date of its most recent amendment. The IDB Letter of Credit shall not be
included within the deemed term 'Letter of Credit' and the amount available
for drawing thereunder shall not be included in determining usage or
availability of the Letter of Credit Amount. Sunbelt's obligation to
reimburse Bankers for any drawing under the IDB Letter of Credit has been
assumed by Huntway pursuant to the Huntway Assumption Agreement and is
evidenced in part by the Senior Note (Sunbelt IDB) and in part hereby and
constitutes part of the Obligations hereunder. Bankers agrees to surrender
the Senior Note (Sunbelt IDB) for cancellation in accordance with the
provisions of the Collateralized Note Indenture upon the expiration of the
IDB Letter of Credit and reimbursement of all drawings made thereunder and
payment of all interest thereon and other amounts owed with respect thereto."
B. Section 2.02(ii) of the Letter of Credit Agreement is hereby amended
by deleting it in its entirety and substituting the following therefor:
"(ii) Huntway hereby agrees to pay to Bankers on the date that any
drawing (including any Principal Drawings and any Interest Drawings) is
honored under the IDB Letter of Credit, a sum equal to the amount of such
drawing. If Huntway shall fail to reimburse Bankers in full on the day that
any drawing on the IDB Letter of Credit is honored in accordance with the
immediately preceding sentence, then, without limiting Bankers' rights under
Section 6 hereof, in accordance with the Collateralized Note Indenture, an
aggregate principal amount of the Senior Notes (Sunbelt IDB) in an amount
equal to the amount of such drawing shall immediately and without further
action become payable on demand by the respective holders of such Senior Note
(Sunbelt IDB). The amount of all obligations under the Senior Notes (Sunbelt
IDB) that shall become payable on demand pursuant to this subsection and the
Collateralized Note Indenture shall be
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allocated among the Senior Notes (Sunbelt IDB) in accordance with the
provisions of the Collateralized Note Indenture."
C. Section 2.03 of the Letter of Credit Agreement is hereby amended by
adding thereto a new clause (d) as follows:
(d) Huntway hereby agrees to pay to Bankers with respect to the IDB
Letter of Credit a commission equal to the undrawn face amount of the IDB
Letter of Credit multiplied by (i) 2.33% per annum during the period from
November 1, 1997 to December 31, 1997, (ii) 2.50% per annum during the period
from January 1, 1998 to June 30, 1998, (iii) 3.00% per annum from July 1,
1998 to December 31, 1998, and (iv) 2.33% per annum thereafter. Such
commissions shall be calculated on the basis of a 360-day year for the actual
number of days elapsed and shall be payable monthly in arrears on the
thirtieth day of each month commencing on February 28, 1998, and at
maturity."
1.4 AMENDMENTS TO ARTICLE V: COVENANTS
A. Section 5.01(d) of the Letter of Credit Agreement is hereby amended by
deleting it in its entirety and substituting the following therefor:
"(d) Promptly after each payment by Huntway in respect of the principal
amount of Senior Notes (Sunbelt IDB) pursuant to Section 3.07(d) of the
Collateralized Note Indenture, Sunbelt will direct the trustee under the IDB
Indenture to redeem IDB Bonds in an aggregate principal amount equal to the
amount of such payment. Any redemptions of the IDB Bonds pursuant to this
Section 5.01(d) shall be applied to reduce the scheduled redemptions of IDB
Bonds set forth in Section 5.01(f) in inverse order of maturity. Huntway
shall cause each redemption of the IDB Bonds made pursuant to this Section
5.01(d) to result in a permanent reduction in the stated amount of the IDB
Letter of Credit in the amount of the aggregate principal amount of the IDB
Bonds so redeemed. Any principal payments received by Bankers pursuant to
Section 3.07(d) of the Collateralized Note Indenture shall be applied against
Huntway's obligations arising under Section 2.02(ii) hereof as a result of
such redemption of IDB Bonds."
B. Section 5.01 of the Letter of Credit Agreement is hereby amended by
adding thereto new clauses (f) and (g) as follows:
"(f) Scheduled Redemptions of IDB Bonds. Huntway shall cause IDB
Bonds to be permanently redeemed in installments on the dates and in the
amounts set forth below:
<TABLE>
<CAPTION>
Date Scheduled Redemption of Bonds
---- -----------------------------
<S> <C>
September 30, 2001 $400,000
</TABLE>
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<PAGE> 5
<TABLE>
<S> <C>
December 31, 2001 $ 600,000
September 30, 2002 $ 400,000
December 31, 2002 $ 600,000
September 30, 2003 $ 400,000
December 31, 2003 $ 600,000
September 30, 2004 $ 400,000
December 31, 2004 $ 600,000
September 30, 2005 $ 400,000
December 31, 2005 $4,200,000
</TABLE>
; provided that the scheduled redemptions of the IDB Bonds set forth above
shall be reduced in connection with any mandatory redemptions of the IDB
Bonds in accordance with Section 5.01(d) or 5.01(g); provided further that
all outstanding IDB Bonds shall be redeemed and all interest and other
obligations with respect thereto paid not later than December 31, 200s,and
the final installment payable by Huntway in respect of the IDB Bonds on such
date shall be in an amount, if different from that specified above,
sufficient to repay all amounts owing with respect to the IDB Bonds. Huntway
shall cause each redemption of the IDB Bonds made pursuant to this Section
5.01(f) to result in a permanent reduction in the stated amount of the IDB
Letter of Credit in the amount of the aggregate principal amount of the IDB
Bonds so redeemed.
(g) Mandatory Redemptions from Excess Cash Flow. Not later than 90 days
after the end of each of 1999 and 2000, Huntway shall cause IDB Bonds to be
permanently redeemed in an aggregate principal amount equal to the lesser of
(x) 66.67% of Excess Cash Flow for such calendar year and (y) $1,000,000. Any
redemptions of the IDB Bonds pursuant to this Section 5.01(g) shall be
applied to reduce the scheduled redemptions of IDB Bonds set forth in Section
5.01(fl in inverse order of maturity. Huntway shall cause each redemption of
the IDB Bonds made pursuant to this Section 5.01(g) to result in a permanent
reduction in the stated amount of the IDB Letter of Credit in the amount of
the aggregate principal amount of the IDB Bonds so redeemed."
1.5 AMENDMENTS TO ARTICLE VI: EVENTS OF DEFAULT.
A. Section 6.02 of the Letter of Credit Agreement is hereby amended by
deleting it in its entirety and substituting the following therefor:
"SECTION 6.02. UPON AN EVENT OF DEFAULT.
(a) If an Event of Default described under Section 6.01(viii) or 6.01(ix)
occurs, any and all Obligations (i) then owing or (ii) which would become
owing upon a drawing of any amount available under any Letter of Credit or
the IDB Letter of Credit shall automatically become due and payable, all
obligations under the Senior Notes (Sunbelt IDB) shall automatically become
due and payable, and
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the Commitment shall automatically terminate Any amounts described in clause
(ii) above when received by Bankers shall be delivered to the Collateral
Agent pursuant to the Collateral Account Agreement as cash collateral for the
Obligations and for the Senior Notes and Convertible Notes, as required by
the Intercreditor Agreement.
(b) If any Event of Default shall have occurred and be continuing
(including under Section 6.01(viii) or 6.01(ix) with respect to clause (iii)
below), Bankers may, in its sole discretion, but shall not be obligated to,
(i) by notice to Huntway and Sunbelt, declare the Commitment to be
terminated, whereupon the same shall forthwith terminate, (ii) declare any
and all Obligations (x) then owing and (y) which would become owing upon a
drawing of any amount available under any Letter of Credit or the IDB Letter
of Credit to be immediately due and payable, whereupon all obligations
described in the preceding clauses (x) and (y) shall automatically become due
and payable and all obligations under the Senior Notes (Sunbelt IDB) shall
automatically become due and payable, or (iii) exercise any other remedy
available to it at law, in equity or otherwise. Any amounts described in
clause (y) above when received by Bankers shall be delivered to the
Collateral Agent pursuant to the Collateral Account Agreement as cash
collateral for the Obligations and for the Senior Notes and Convertible
Notes, as required by the Intercreditor Agreement."
SECTION 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon the
satisfaction of the following condition precedent (the date of satisfaction of
such condition(s) being referred to herein as the "THIRD AMENDMENT EFFECTIVE
DATE"):
A. On or before the Third Amendment Effective Date, the Second
Supplemental Indenture dated as of November 30, 1997, by and between Huntway
and Fleet National Bank, as Indenture Trustee shall have been executed and
delivered and the New Senior Notes (Sunbelt IDB), as deemed therein, shall
have been authenticated, executed and delivered, and all unpaid interest on
the Existing Senior Notes (Sunbelt IDB) (as defined therein) shall have been
paid, and all other obligations set forth in Section 18 of such Second
Supplemental Indenture shall have been performed.
SECTION 3. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE LETTER OF CREDIT AGREEMENT AND MODIFIED
DOCUMENTS.
(i) On and after the Third Amendment Effective Date, each reference in
the Letter of Credit Agreement to "this Agreement", "hereunder", "hereof",
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"herein" or words of like import referring to the Letter of Credit
Agreement, and each reference in the Restructured Documents (as defined on
the Intercreditor Agreement) to the "Letter of Credit Agreement"
"thereunder", "thereof" or words of like import referring to the Letter of
Credit Agreement shall mean and be a reference to the Letter of Credit
Agreement as amended by this Amendment (the "Amended Agreement")
(ii) Except as specifically amended by this Amendment, the Letter of
Credit Agreement shall remain in full force and effect and is hereby ratified
and confirmed.
B. HEADINGS. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive
effect.
C. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK) WITHOUT REGARD TO CONFLICTS -OF LAWS PRINCIPLES.
D. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OR ACTION BASED
UPON OR ARISING OUT OF THIS AMENDMENT OR ANY DEALINGS BETWEEN OR AMONG THEM
RELATING TO THE SUBJECT MATTER OF THE TRANSACTION CONTEMPLATED HEREBY AND THE
RELATIONSHIP BEING ESTABLISHED. The scope of this waiver is intended to be
all-encompassing of any and all disputes that may be filed in any court that
relate to the subject matter of the transactions contemplated hereby,
including, without limitation, contract claims, tort claims, breach of duty
claims and all other common law and statutory claims Each party hereto
acknowledges that this waiver is a material inducement to enter into a business
relationship, that each has already relied on the waiver in entering into this
Amendment and that each will continue to rely on the waiver in their related
future dealings Each party hereto further warrants and represents that each has
reviewed this waiver with its legal counsel, and that each knowingly and
voluntarily waives its jury trial rights following consultation with legal
counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
AMENDMENTS AND RESTATEMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AMENDMENT OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO EXTENSIONS OF
CREDIT PURSUANT TO THIS AGREEMENT. In the event of litigation, this Agreement
may be filed as a written consent to a trial by the court.
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E. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and
attached to a single counterpart so that all signature pages are physically
attached to the same document. This Amendment (other than the provisions of
Section 1 hereof, the effectiveness of which is governed by Section 2 hereof)
shall become effective upon the execution of a counterpart hereof by each of
the parties hereto and receipt by each of the parties hereto of written or
telephonic notification of such execution and authorization of delivery
thereof. On the Third Amendment Effective Note, the obligation of the parties
hereto to amend the Letter of Credit Agreement pursuant to the Sequencing and
Amendatory Agreement shall be terminated.
[Remainder of page intentionally left blank]
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Page S-1 to Third Amendment to Letter of Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers "hereunto duly
authorized as of the date first written above.
BANKERS TRUST COMPANY
By:
-----------------------------------------------
Title:
HUNTWAY PARTNERS, L.P.
By: HUNTWAY MANAGING PARTNER, L.P.,
its Managing General Partner
By: The Huntway Division of Reprise
Holdings, Inc., its sole General Partner
By:
--------------------------------------
Title:
By: HUNTWAY HOLDINGS, L.P.,its Special
General Partner
By: The Huntway Division of Reprise
Holdings, Inc., its sole General Partner
By:
--------------------------------------
Title:
SUNBELT REFINING COMPANY, L.P.
By: HUNTWAY PARTNERS, L.P.,its sole General
partner
By: The Huntway Division of Reprise
Holdings, Inc., its sole
General Partner
By:
--------------------------------------
Title:
S-1
