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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.
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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:
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Name:
Title: President
FLEET NATIONAL BANK, a
National Banking Association,
as trustee
By:
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Name:
Title: Authorized Officer
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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:
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Name:_______________
Title: President
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