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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