-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HgjpNTYRsthtNGB5sStRqPYsxy0JB2SYjioNocsDJmx7b/JHyn6cVJcC36ZaxrQs A+gGkk0b1w07QGSP67uZww== 0000950137-98-001343.txt : 19980401 0000950137-98-001343.hdr.sgml : 19980401 ACCESSION NUMBER: 0000950137-98-001343 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 19980330 ITEM INFORMATION: FILED AS OF DATE: 19980331 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: HUNTWAY PARTNERS L P CENTRAL INDEX KEY: 0000840335 STANDARD INDUSTRIAL CLASSIFICATION: PETROLEUM REFINING [2911] IRS NUMBER: 363601653 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-10091 FILM NUMBER: 98581128 BUSINESS ADDRESS: STREET 1: 25129 OLD RD STREET 2: STE 322 CITY: NEWHALL STATE: CA ZIP: 91381 BUSINESS PHONE: 8052541220 MAIL ADDRESS: STREET 1: 25129 OLD ROAD STREET 2: # 322 CITY: NEWHALL STATE: CA ZIP: 91381 8-K 1 FORM 8-K 1 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 ------------------------- HUNTWAY PARTNERS, L.P. - ------------------------------------------------------------------------------- (Exact name of registrant as specified in its charter) Delaware 36-3601653 - ----------------------------------- ---------------------------------------- (State of other jurisdiction (IRS Employer Identification Number) of incorporation) 1-10091 ---------------------- (Commission File Number) 25129 The Old Road, Suite 322, Newhall, California 91381 - ------------------------------------------------------ ------------------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (805) 286-1582 ------------------- Page 1 of 4 2 ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS. (c) Exhibits. See the Index to Exhibits attached hereto. Page 2 of 4 3 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 ---------------------------------- Warren J. Nelson Executive Vice President and Chief Financial Officer Page 3 of 4 4 INDEX TO EXHIBITS Exhibit Number - ------ 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 EX-10.1 2 FIRST SUPPLEMENTAL INDENTURE/FLEET 1 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 2 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. 2 3 (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 3 4 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 4 5 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 ------------------------------------- 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 ------------------------------------- Name: Susan Freedman Title: Authorized Signatory EX-10.2 3 SECOND SUPPLEMENTAL INDENTURE/FLEET 1 EXHIBIT 10.2 EXECUTION COPY ====================================== HUNTWAY PARTNERS, L.P., as Issuer TO FLEET NATIONAL BANK, as Trustee ------------------ SECOND SUPPLEMENTAL INDENTURE Dated as of November 30, 1997 Supplement to Amended and Restated Collateralized Note Indenture Dated as of December 12, 1996 ------------------ ====================================== 2 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 3 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 3 4 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 4 5 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." 5 6 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]." 6 7 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 7 8 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 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 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 EX-10.3 4 FIRST SUPPLEMENTAL INDENTURE/IBJ SCHROEDER 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 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 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 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 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 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 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 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 EX-10.4 5 FIRST SUPPLEMENTAL INDENTURE/STATE STREET 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 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 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 EX-10.5 6 THIRD AMENDMENT TO LETTER OF CREDIT 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 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 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 3 4 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:
Date Scheduled Redemption of Bonds ---- ----------------------------- September 30, 2001 $400,000
4 5 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
; 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 5 6 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", 6 7 "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. 7 8 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] 8 9 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 -----END PRIVACY-ENHANCED MESSAGE-----