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EXHIBIT 10.1
AMENDMENT NO. 3 TO BUSINESS LOAN AGREEMENT
(RECEIVABLES AND INVENTORY)
This Amendment No. 3 (the "Amendment") dated as August 2, 2000, is
between BANK OF AMERICA, N.A. (the "Bank") and HUNTWAY REFINING COMPANY (the
"Borrower").
RECITALS
A. The Bank and the Borrower are parties to that certain
Business Loan Agreement (Receivables and Inventory) dated as of October 29,
1999, as previously amended (the "Agreement").
B. The Bank and the Borrower desire to further amend the
Agreement as herein provided.
AGREEMENT
1. Definitions. Capitalized terms used but not defined in this
Amendment shall have the meaning given to them in the Agreement.
2. Amendments. The Agreement is hereby amended as follows:
2.1. In Section 1.1(b) of the Agreement, the phrase "the
Inventory Cap" is substituted for the figure "Ten Million Dollars
($10,000,000)" appearing therein.
2.2 Section 1.1 of the Agreement is further amended to fully
restate the first sentence of the second paragraph of said section to
read as follows:
"If at any time the total amount of principal
outstanding under the line of credit and the Reserve
(as defined in Section 2.1 (e) hereof) exceeds this
limit, the Borrower will immediately either increase
the loan value of marketable securities or other
acceptable collateral pledged to the Collateral
Agent, or reduce the total amount outstanding in
order to comply with this limit."
2.3. In Section 1.3(b) of the Agreement, the phrase "ten
percent (10%) of the available Inventory Cap" is substituted for the
figure "$500,000" appearing therein.
2.4. In Section 1.3(c) of the Agreement, the phrase "fifteen
percent (15%) of the available Inventory Cap" is substituted for the
figure "One Million Dollars ($1,000,000)" appearing therein.
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2.5. The first sentence of Section 1.3(d) of the
Agreement is amended in full to read as follows:
"The inventory is held for sale or use in the
ordinary course of Borrower's business and is of good
and merchantable quality, including work-in-process
inventory, returned inventory and inventory
manufactured to the specifications of an account
debtor."
2.6. Section 1.6 of the Agreement is amended in full to
read as follows:
"'Credit Limit' means the amount of (i) Thirty
Million Dollars ($30,000,000) during the period of
May 1st through November 30th of each year, or (ii)
Twenty-Five Million Dollars ($25,000,000) during the
period of December 1st through April 30th of each
year."
2.7. The Agreement is amended to add a new Section 1.17
(acknowledged by the parties hereto to be out of alphabetical order to
avoid renumbering of sections) to read as follows:
"1.17 `Inventory Cap' means, as of any date of
determination, the amount shown below, determined
from the borrowing certificate delivered by the
Borrower as of the end of each month pursuant to
Section 9.3(d) hereof, based upon the average daily
purchase price of crude oil per barrel (`bbl') shown
on the Kern River, Chevron Posting Purchased Oil
Price (`KRCP Price') for such month:
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AVERAGE DAILY AMOUNT OF
KRCP PRICE INVENTORY CAP
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Less than or equal to $10,000,000
$10.00/bbl
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Greater than $10.00/bbl but $12,500,000
less than or equal to
$20.00/bbl
-----------------------------------------------------
Greater than $20.00/bbl $15,000,000"
-----------------------------------------------------
2.8 In the first sentence of Section 2.1 (d) of the
Agreement, the phrase "plus
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the face amount of any outstanding letters of credit" is substituted
for the phrase "plus the outstanding amounts of any letters of credit"
appearing therein.
2.9. Section 2.1(e) of the Agreement is amended in full to
read as follows:
"(e) In determining the net amount available to the
Borrower under the line of credit, the Bank will
reserve under the Borrowing Base the total of (i) an
amount equal to the lesser of the face amount of any
outstanding standby letter of credit or the actual
amount of the underlying accounts payable to the
beneficiary of such letter of credit, (ii) the face
amount of any outstanding commercial letter of
credit, and (iii) One Million Dollars ($1,000,000)
for capital expenditures (in the aggregate the
"Reserve")."
2.10. In Section 2.2 of the Agreement, the date "June 1,
2002" is substituted for the date "June 1, 2001" appearing therein.
2.11 In Section 2.7 of the Agreement, the date "December
1, 2002" is substituted for the date "November 1, 2001" appearing
therein.
2.12. Section 9.3(d) of the Agreement is amended in full to
read as follows:
"(d) A borrowing certificate setting forth the amount
of Acceptable Receivables and Acceptable Inventory as
of (i) the 10th day of each month, (ii) the 20th day
of each month and (iii) as of the last day of each
month, within 7 days after each period with respect
to (i) and (ii) and within 10 days of month end with
respect to (iii) and, upon the Bank's request, copies
of the invoices or the record of invoices from the
Borrower's sales journal for such Acceptable
Receivables, copies of the delivery receipts,
purchase orders, shipping instructions, bills of
lading and other documentation pertaining to such
Acceptable Receivables, and copies of the cash
receipts journal pertaining to the borrowing
certificate. In the borrowing certificate Borrower
shall represent and warrant that all Acceptable
Receivables are net of any credits due as a result of
price adjustments or de-escalation as it relates to
indexing programs. The borrowing certificate shall
include the total amount of outstanding standby
letters of credit and the total amount of accounts
payable due to the beneficiaries of the
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outstanding standby letters of credit. The borrowing
certificate for month-end shall include information
with respect to the average daily KRCP Price of crude
oil per barrel for such month."
2.13. In Section 9.3, subsection (k) is amended to read as
"(l)" and a new subsection (k) is added to read as follows:
"(k) Within the periods provided in (a) and (b)
above, a compliance certificate signed by the
Borrower setting forth (i) the information and
computations (in sufficient detail) to establish that
the Borrower is in compliance with all financial
covenants at the end of the period covered by the
financial statements then being furnished and (ii)
whether there existed as of the date of such
financial statements and whether there exists as of
the date of the certificate, any default under this
Agreement and, if any such default exists, specifying
the nature thereof and the action the Borrower is
taking and proposes to take with respect thereto."
3. Representations and Warranties. When the Borrower signs this
Amendment, the Borrower represents and warrants to the Bank that: (a) there is
no event which is, or with notice or lapse of time or both would be, a default
under the Agreement except those events, if any, that have been disclosed in
writing to the Bank or waived in writing by the Bank, (b) the representations
and warranties in the Agreement are true as if made on the date of this
Amendment, (c) this Amendment is within the Borrower's powers, has been duly
authorized, and does not conflict with any of the Borrower's organizational
papers, and (d) this Amendment does not conflict with any law, Agreement, or
obligation by which the Borrower is bound.
4. Conditions. This Amendment will be effective when the Bank receives
the following items, in form and content acceptable to the Bank.
4.1. This Amendment duly executed by all parties hereto.
4.2. Evidence that the execution, delivery and performance by
the Borrower of this Amendment has been duly authorized.
5. Effect of Amendment. Except as provided in this Amendment, all of
the terms and conditions of the Agreement shall remain in full force and effect.
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This Agreement is executed as of the date stated at the beginning of this
Amendment.
HUNTWAY REFINING COMPANY
By: _______________________________
Name: _____________________________
Title: ____________________________
BANK OF AMERICA, N.A.
By: _______________________________
Name: _____________________________
Title: ____________________________
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