UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. ___________)*
HUNTWAY PARTNERS, L.P.
(Name of Issuer)
COMMON UNITS
(Title of Class of Securities)
447300 20 3
(CUSIP Number)
Massachusetts Mutual Life Insurance Company, 1295 State St.
Springfield, MA 01111 Attention: Victoria Gallagher
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
December 30, 1996
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this
Schedule 13D, and is filing this schedule because of Rule 13d-
1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with the statement
[ ]. (A fee is not required only if the reporting person: (1) has
a previous statement on file reporting beneficial ownership of
more than five percent of the class of securities described in
Item 1; and (2) has filed no amendment subsequent thereto
reporting beneficial ownership of five percent or less of such
class.) (See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits,
should be filed with the Commission. See Rule 13d-1(a) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to
the subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in
a prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18
of the Securities Exchange Act of 1934 ("Act") or otherwise
subject to the liabilities of that section of the Act but shall
be subject to all other provisions of the Act (however, see the
Notes).
The Exhibit Index is located on page __.
<PAGE>
SCHEDULE 13D
CUSIP NO. 447300 203 PAGE 2 OF __ PAGES
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Massachusetts Mutual Life Insurance Company 04-1590850
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS
PF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Commonwealth of Massachusetts
NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY OWNED 3,830,279
BY EACH REPORTING 8 SHARED VOTING POWER
PERSON WITH 0
9 SOLE DISPOSITIVE POWER
3,830,279*
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,830,279
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.1
14 TYPE OF REPORTING PERSON
IC
*The Prepackaged Plan of Reorganization of Huntway Partners
L.P. and the Unitholders Agreement dated December 12, 1996 provide
that the Unitholders will not dispose of any of the Common Units
for a period of 180 days after the effective date of the Plan.
<PAGE>
Item 1. Security and Issuer.
The name of the issuer is Huntway Partners, L.P. (the
"Issuer"). The Issuer is a limited partnership organized under
the laws of the State of Delaware and its principal executive
offices are located at 25129 The Old Road, Newhall, California
91381. The equity securities to which this statement relates are
the common limited partnership units of the Issuer (the "Common
Units").
Item 2. Identity and Background.
(a) The person filing this schedule is Massachusetts
Mutual Life Insurance Company, a Massachusetts insurance company
(the "Reporting Person").
The names of the executive officers and directors of
the Reporting Person are set forth in Schedule 1 attached hereto
and incorporated herein by reference.
(b) The business address of the Reporting Person is 1295
State Street, Springfield, MA, 01111. The business addresses of
the executive officers and directors of the Reporting Person are
set forth in Schedule 1 attached hereto and incorporated herein by
reference.
(c) The principal business of the Reporting Person is
sale of life insurance products. The present principal occupation
or employment of each of the executive officers and directors are
set forth in Schedule 1 attached hereto and incorporated herein by
reference.
(d) Except as may otherwise be set forth in Schedule 1
attached hereto, which is incorporated herein by reference,
during the last five years none of the Reporting Person, or to the
best knowledge of the Reporting Person, any of its respective
executive officers and directors, has been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors).
(e) Except as may otherwise be set forth in Schedule 1
attached hereto, which is incorporated herein by reference,
during the last five years none of the Reporting Person, or to the
best knowledge of the Reporting Person, any of its respective
executive officers and directors, has been a party to a civil
proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject
to a judgment, decree, or final order enjoining future violations
of, or prohibiting activity subject to, federal or state securities
laws or finding any violation of such laws.
(f) The Reporting Person is a corporation organized
under the laws of the Commonwealth of Massachusetts. Except as may
otherwise be set forth on Schedule 1 attached hereto, which is
incorporated herein by reference, to the best knowledge of the
Reporting Person, each of the executive officers and directors of
the Reporting Person is a citizen of the United States.
Item 3. Source and Amount of Funds or Other Consideration
As described in Item 4 below, the Reporting Person
acquired 3,830,279 Common Units issued in connection with the
Issuer's prepackaged plan of reorganization under Title 11 of
United States Code dated December 12, 1996 (the "Prepackaged
Plan"). The Common Units and other consideration received by the
Reporting Person described below were received in exchange for
(i) private placement notes issued by the issuer to the Reporting
Person and (ii) a warrant (the "MassMutual Warrant") to purchase
1,092,156 Common Units for $.875 per Common Unit, expiring on
December 31, 2008, previously issued by the Issuer to the Reporting
Person. Such private placement notes were acquired by the
Reporting Person in the ordinary course of its business as an
insurance company. The MassMutual Warrant was received by the
Reporting Person in connection with a general restructuring of the
indebtedness of the Issuer on June 23, 1993.
Item 4. Purpose of the Transaction
The exchange by the Reporting Person of private placement
notes and the MassMutual Warrant for new Common Units and
other consideration was done pursuant to the Prepackaged Plan of
the Issuer. The Issuer commenced its Prepackaged Plan of
reorganization in order to reduce the amount of its outstanding
debt and thereby improve its viability and its ability to service
its debt obligations. The Prepackaged Plan was declared
effective on December 30, 1996. Pursuant to the Prepackaged
Plan, the Issuer issued Common Units, senior secured notes, and
other consideration to the Reporting Person as follows:
a. Private placement notes previously issued to the
Reporting Person by the Issuer aggregating $23,142,023 in
principal amount plus accrued interest thereon were
exchanged for new senior secured notes of the Issuer
("Collateralized Notes") in the aggregate principal amount
of $6,603,265 accruing interest at a rate of 12% per
annum, and 1,780,258 Common Units representing approximately
7.0% of the Common Units outstanding on the Plan Effective
Date.
b. The MassMutual warrant was exchanged for 2,050,021
Common Units.
c. As further consideration for the exchange by the
Reporting Person of private placement notes and the
MassMutual Warrant, the Issuer entered into the Unitholders
Agreement with the Reporting Person, Bankers Trust Company
(BT), Mellon Bank, N.A., as trustee for First Plaza Group
Trust ("Mellon Bank"), Oppenheimer & Co., Inc., for itself and
as agent for certain affiliates ("Oppenheimer"), Lindner
Growth Fund ("Lindner"), Madison Dearborn Partners III ("MDP")
and First Chicago Equity Corporation ("FCEC").<1> The
Unitholders Agreement provides, among other things, for the
issuance from time to time of additional Common Units to the
Reporting Person, the other Senior Lenders and the Junior
Lenders. The amount of additional Common Units to be issued
under the Unitholders Agreement will be sufficient to prevent
dilution of the Common Units issued to the Reporting Person,
the other Senior Lenders and the Junior Lenders that would
otherwise be caused by the issuance of Common Units to certain
other parties after the Plan Effective Date. The Reporting
Person expects to receive additional Common Units pursuant to
this Agreement in January 1997. Because the exact number of
Common Units to be issued to such other parties cannot be
determined at this time, the number of Common Units to be
issued to the Reporting Person, the other Senior Lenders and
the Junior Lenders under the Unitholders Agreement cannot be
determined at this time.
<1> The Reporting Person, BT, Mellon Bank, Oppenheimer,
and Lindner are collectively referred to as the "Senior Lenders."
MDP and FCEC are collectively referred to herein as the "Junior
Lenders".
The Prepackaged Plan also provided for the exchange by
the other Senior Lenders of promissory notes in the aggregate
principal amount of $57,263,427 plus accrued interest and
warrants to acquire 2,248,601 Common Units for $.875 per Common
Unit expiring December 31, 2008, for (i) promissory notes of the
Issuer identical to those received by the Reporting Person in the
aggregate principal amount of $16,896,734, accruing interest at 12%
per annum, and (ii) 7,247,815 Common Units identical to those
received by the Reporting Person, representing approximately 28.6%
of the Common Units outstanding on the Plan Effective Date. The
Senior Lenders are also parties to the Unitholders Agreement.
The Prepackaged Plan further provided for the exchange
by the Junior Lenders of junior subordinated promissory notes in
the aggregate principal amount of $7,000,000 plus accrued
interest for (i) junior subordinated notes of the Issuer in the
aggregate principal amount of $2,070,000 that differ from those
received by the Reporting Person and (ii) 1,050,142 Common Units
identical to those received by the Reporting Person, representing
4.14% of the Common Units outstanding. The Junior Lenders may be
affiliates of the general partners of the Issuer. The Junior
Lenders are also parties to the Unitholders Agreement. The notes
received by the Junior Lenders are subordinated in right of
payment to the notes received by the Senior Lenders.
The Common Units acquired by the Reporting Person have
the voting rights provided to Common Units in the Issuer's
Amended and Restated Agreement of Limited Partnership, dated
November 9, 1988, as amended. New Common Units that may be
issued from time to time under the Unitholders Agreement will
have the voting rights described above for Common Units issued on
the effective date of the Prepackaged Plan.
The Reporting Person has no intention of acquiring any
additional equity securities of the Issuer, other than the Common
Units to be received from time to time pursuant to the
Unitholders Agreement. The Reporting Person may request the
Issuer to convert from a master limited partnership to corporate
form. Except for such request, the Reporting Person has no plans
or proposals relating to extraordinary transactions involving the
Issuer, the sale or transfer of a material amount of assets of
the Issuer or of any of its subsidiaries, any changes in the
general partner of the Issuer (or the present operating committee
thereof) or management of the Issuer, any material change in the
present capitalization or distribution policy of the Issuer, any
other material change in the Issuer's business or partnership
structure or any changes in the Issuer's agreement of limited
partnership. The Reporting Person has no plans or proposals to
cause any class of securities of the Issuer to be delisted from a
national securities exchange or to cease to be authorized to be
quoted in an inter-dealer quotation system of a registered
national securities association, to cause a class of equity
securities of the Issuer to become eligible for termination of
registration pursuant to Section 12(g)(4) of the Securities
Exchange Act of 1934, as amended, or any action similar to any of
the above.
Item 5. Interest in Securities of the Issuer
(a) The Reporting Person beneficially owns 3,830,279
Common Units as of December 30, 1996. Based upon information
provided by the Issuer, there were outstanding on December 30,
1996, 25,342,654 Common Units of the Issuer, after the
effectiveness of the Plan. Accordingly, the Reporting Person
beneficially owns approximately 15.1% of the outstanding Common
Units. The Reporting Person believes that additional Common
Units will be issued to it, the other Senior Lenders and the
Junior Lenders on or shortly after December 31, 1996 pursuant to
the Unitholders Agreement. However, the exact number of Common
Units to be issued has not been determined.
By virtue of their receipt of notes and Common Units in
the Prepackaged Plan and the Unitholders Agreement and the
Support Agreement, the Reporting Person, the other Senior Lenders
and the Junior Lenders may comprise a "group" for purposes of the
acquisition of the Common Units issued to the Reporting Person,
the other Senior Lender and the Junior Lenders pursuant to the
Prepackaged Plan. Based upon information set forth in the
Disclosure Statement relating to the Prepackaged Plan, the other
Senior Lenders and the Junior Lenders beneficially own the
following respective number of Common Units:
<TABLE>
<CAPTION>
<S> <C> <C>
Senior Lenders and Number of Common
Junior Lenders Units Beneficially Owned % of
Total
Bankers Trust Company 6,928,417 27.30%
First Plaza Group Trust 478,799 1.89%
Oppenheimer & Company, Inc. 478,799 1.89%
Lindner Growth Fund 1,019,968 4.02%
First Chicago Equity Corporation 3,931,962<2> 15.52%
Madison Dearborn Partners III 105,015 0.41%
Based upon such information, the aggregate Common Units delivered
to the Reporting Person, the other Senior Lenders and the Junior
Lenders represent beneficial ownership of approximately 66.2% of
all Common Units outstanding on the Plan Effective Date. The
Reporting Person disclaims beneficial ownership of any Common
Units which may have been acquired by the other Senior Lenders or
the Junior Lenders pursuant to the Prepackaged Plan, or may be
acquired by the other Senior Lenders or the Junior Lenders
pursuant to the Unitholders Agreement.
<2> Includes 945,127 Common Units to be received pursuant
to the Prepackaged Plan plus 2,986,835 Common Units
previously acquired, according to the Disclosure Statement.
</TABLE>
(b) Except for certain restrictions in the Unitholders
Agreement, the Support Agreement, and the Registration Rights
Agreement, the Reporting Person has sole voting and dispositive
power with respect to the Common Units beneficially owned by it
and any Common Units issuable to it pursuant to the Unitholders
Agreement. The Reporting Person, the Issuer, the other Senior
Lenders and the Junior Lenders have entered into a Support
Agreement dated as of July 22, 1996. Pursuant to this Agreement,
the Reporting Person has agreed, in certain circumstances set
forth therein, to vote its Common Units in favor of a proposal
that may be made by the Issuer or the other parties to the
Support Agreement to convert the Issuer to corporate form.
Pursuant to the Unitholders Agreement, the Reporting Person and
the other parties thereto have agreed not to dispose of the
Common Units for a period of 180 days following the Effective
Date of the Prepackaged Plan. The Reporting Person, the Issuer,
the other Senior Lenders and the Junior Lenders have entered into
a Registration Rights Agreement dated as of December 12, 1996,
more fully described in Section 6. Pursuant to this Agreement,
the Reporting Person and the other parties thereto have agreed on
certain terms and conditions not to dispose of the Common Units
for a period of 180 days following an underwritten public
offering of equity securities by the Issuer.
(c) Except for the acquisition of Common Units and
entering into the Unitholders Agreement and the Registration
Rights Agreement described in Section 6, the Reporting Person has
not engaged in any transactions relating to Common Units for the
sixty day period preceding the date of the filing of this
statement. The Reporting Person has no knowledge of any such
transaction involving any other Senior Lender or Junior Lender
during such period other than the receipt of the Common Units and
entering into the Unitholders Agreement and the Registration Rights
Agreement pursuant to the Prepackaged Plan.
(d) No person other than the Reporting Person has the
right to receive or the power to direct the receipt of
distributions from, or the proceeds from the sale of, the Common
Units issued to the Reporting Person or the Common Units issuable
to the Reporting Person pursuant to the Unitholders Agreement.
Item 6. Contracts, Agreements, Understandings or Relationships
with Respect to Securities of the Issuer
The Reporting Person, the other Senior Lenders and the
Junior Lenders are party to the Unitholders Agreement, dated as
of December 12, 1996. Pursuant to the Unitholders Agreement, the
Issuer agrees to issue to the Reporting Person, the other Senior
Lenders and the Junior Lenders such amount of Common Units as is
necessary to prevent dilution to the Common Units issued to such
parties on the Plan Effective Date that would otherwise be caused
by the issuance of Common Units to the Junior Lenders pursuant to
a Junior Subordinated Indenture dated as of December 12, 1996,
and to the Issuer's management. The Unitholders Agreement also
provides that the Reporting Person, the other Senior Lenders and
the Junior Lenders will not sell, transfer, assign or convey any
Common Unit or interest therein for a period of 180 days
following the Plan Effective Date.
Further, the Issuer, the Reporting Person, the other
Senior Lenders, Fleet National Bank, as Indenture Trustee, and
United States Trust Company of New York, as Collateral Agent, are
party to the Intercreditor and Collateral Agency Agreement, dated
as of December 12, 1996, which establishes payment priorities,
lien priorities and priorities of distribution of the proceeds of
collateral and other matters relating to the exercise of rights
and remedies of the Reporting Person and other Senior Lenders
pursuant to the Prepackaged Plan.
In an addition, the Issuer, the Reporting Person, the
other Senior Lenders and Junior Lenders are party to a
Registration Rights Agreement, dated as of December 12, 1996,
which provides for the registration of the Common Units under
Section 5 of the Securities Act of 1933 upon request of the
Reporting Person, holders of a majority of the securities
received by the Senior Lenders and Junior Lenders under the
Prepackaged Plan, or holders of a majority of all securities
subject to the Registration Rights Agreement.
Item 7. Material to be Filed as Exhibits.
Exhibit 1. Prepackaged Plan of Reorganization of
Huntway Partners, L.P., Under Chapter 11
of the United States Bankruptcy Code,
dated December 12, 1996.
Exhibit 2. Unitholders Agreement, dated December
12, 1996, among Huntway Partners, L.P.,
Bankers Trust Company, Massachusetts
Mutual Life Insurance Company, Mellon
Bank, N.A., as trustee for First Plaza
Group Trust, Oppenheimer & Co., Inc.,
for itself and as agent for certain
affiliates, Lindner Growth Fund, Madison
Dearborn Partners III and First Capital
Corporation of Chicago.
Exhibit 3. Support Agreement, dated July 22, 1996,
among Huntway Partners, L.P., Bankers
Trust Company, Massachusetts Mutual Life
Insurance Company, Mellon Bank, N.A., as
trustee for First Plaza Group Trust,
Oppenheimer & Co., Inc., for itself and
as agent for certain affiliates, Madison
Dearborn Partners III and First Capital
Corporation of Chicago.
Exhibit 4. Registration Rights Agreement, dated
December 12, 1996, among Huntway
Partners, L.P., Bankers Trust Company,
Massachusetts Mutual Life Insurance
Company, Mellon Bank, N.A., as trustee
for First Plaza Group Trust, Oppenheimer
& Co., Inc., for itself and as agent for
certain affiliates, Lindner Growth Fund,
Madison Dearborn Partners III and First
Capital Corporation of Chicago.
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set forth in
this statement is true, complete and correct.
Dated: December 31, 1996
Massachusetts Mutual Life
Insurance Company
By /s/ Richard C. Morrison
Title: Managing Director
<PAGE>
SCHEDULE 1
Massachusetts Mutual Life Insurance Company is a Massachusetts
corporation. Massachusetts Mutual Life Insurance Company generally
is eligible to file a Schedule 13G to report holdings in public
companies and has not compiled solely for purposes of this Schedule
13D, information not called for by Schedule 13G, but requested in
Items 2(d) and (e) and, with respect to executive officers and
directors, in 2(f) and 5 of this Schedule 13D. Accordingly, no
response is included in this Schedule 13D with respect to such
Items.
The attached table sets forth the names and principal
occupations or employment of the directors and executive officers
of Massachusetts Mutual Life Insurance Company. Unless otherwise
indicated, the employer of all individuals listed below is
Massachusetts Mutual Life Insurance Company and the business
address is 1295 State Street, Springfield, Massachusetts, 01111.
<PAGE>
DIRECTORS AND EXECUTIVE OFFICERS OF
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
AS OF DECEMBER 31, 1996
<TABLE>
<CAPTION>
DIRECTORS
<S> <C>
NAME PRINCIPAL OCCUPATION
Roger G. Ackerman Chairman and Chief Executive
Corning Incorporated Officer, Corning Incorporated
One Riverfront Plaza HQE2
Corning, NY 14831
James R. Birle President,
Resolute Partners, LLC Resolute Partners, LLC
Greenwich Plaza, Suite 100
Greenwich, CT 06830
Frank C. Carlucci III Chairman of the Board
The Carlyle Group, Inc. The Carlyle Group, Inc.
1001 Pennsylvania Ave, N.W.
Washington, DC 20004
Gene Chao, Ph. D. Chairman of the Board
Computer Projections, Inc. and Chief Executive Officer
733 S.W. Vista Avenue Computer Projections, Inc.
Portland, Oregon 97205-1203
Patricia Diaz Dennis Vice President and Assistant
SBC Communications, Inc. General Counsel,
175 East Houston SBC Communications, Inc.
San Antonio, Texas 78205
Anthony Downs Senior Fellow
The Brookings Institution The Brookings Institution
1775 Massachusetts Ave., N.W.
Washington, DC 20036-2188
James L. Dunlap President and Chief Operating
United Meridian Corporation Officer, United Meridian
1201 Louisiana Corporation
Houston, Texas 77002-5603
William B. Ellis, Ph. D. Senior Fellow, Yale University
31 Pound Foolish Lane School of Forestry and
Glastonbury, CT 06033 Environmental Studies
Robert M. Furek President, International
100 Pearl Street Distillers and Vintners Inc.
Hartford, CT 06103-4506
Charles K. Gifford Chief Executive Officer,
BankBoston Corp. BankBoston Corp.
100 Federal Street
Boston, MA 02110
Dr. William N. Griggs Managing Director,
Griggs & Santow, Inc. Griggs & Santow, Incorporated
75 Wall Street
New York, NY 10005
George B. Harvey
663 Ponus Ridge
New Canaan, CT 06840
Barbara P. Hauptfuhrer Director of Various Corporations
1700 Old Welsh Road
Huntington Valley, PA 19006
Sheldon B. Lubar Chairman, Lubar & Co., Inc.
Lubar & Company, Inc.
777 E. Wisconsin Avenue
Milwaukee, WI 53202
William B. Marx, Jr.
Lucent Technologies
600 Mountain Avenue
Room 6A-502
Murray Hill, NJ 07974
John F. Maypole Managing Partner, Peach State
157 Lake Drive Real Estate Holding Company
Mountain Lakes, NJ 07046
Donald F. McCullough
210 Madison Avenue
New york, NY 10016
John J. Pajak President and Chief Operating
Massachusetts Mutual Life Officer, Massachusetts Mutual
Life Insurance Company Life Insurance Company
1295 State Street
Springfield, MA 01111
Barbara Scott Preiskel Attorney-at-Law
60 East 42nd Street
Suite 3125
New York, NY 10165
Thomas B. Wheeler Chairman and Chief Executive
Massachustts Mutual Life Officer, Massachusetts Mutual
Insurance Company Life Insurance Company
1295 State Street
Springfield, MA 01111
Alfred M. Zeien Chairman and Chief Executive
The Gillette Company Officer, The Gillette Company
Prudential Tower Building
Boston, MA 02199
</TABLE>
<TABLE>
<CAPTION>
EXECUTIVE OFFICERS
<S> <C>
NAME PRINCIPAL OCCUPATION
Laurence V. Burkett Executive Vice President
and General Counsel
John B. Davies Executive Vice President
Daniel J. Fitzgerald Executive Vice President,
Corporate Financial Operations
John M. Naughton Executive Vice President
John J. Pajak President and Chief Operating
Officer
Gary E. Wendlandt Executive Vice President and
Chief Investment Officer
Thomas B. Wheeler Chairman and Chief Executive
Officer
</TABLE>
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Page No.
Exhibit 1. Prepackaged Plan of Reorganization
of Huntway Partners, L.P., Under
Chapter 11 of the United States Bankruptcy
Code, dated December 12, 1996.
Exhibit 2. Unitholders Agreement, dated December 12,
1996, among Huntway Partners, L.P.,
Bankers Trust Company, Massachusetts
Mutual Life Insurance Company, Mellon
Bank, N.A., as trustee for First Plaza
Group Trust, Oppenheimer & Co., Inc.,
for itself and as agent for certain
affiliates, Lindner Growth Fund, Madison
Dearborn Partners III and First Capital
Corporation of Chicago.
Exhibit 3. Support Agreement, dated July 22, 1996, among
Huntway Partners, L.P., Bankers Trust Company,
Massachusetts Mutual Life Insurance Company,
Mellon Bank, N.A., as trustee for First Plaza
Group Trust, Oppenheimer & Co., Inc., for
itself and as agent for certain affiliates,
Madison Dearborn Partners III and First Capital
Corporation of Chicago.
Exhibit 4. Registration Rights Agreement, dated December
12, 1996, among Huntway Partners, L.P.,
Bankers Trust Company, Massachusetts Mutual
Life Insurance Company, Mellon Bank, N.A.,
as trustee for First Plaza Group Trust,
Oppenheimer & Co., Inc., for itself and as
agent for certain affiliates Lindner Growth
Fund, Madison Dearborn Partners III and First
Capital Corporation of Chicago.
<PAGE>
EXHIBIT 1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
IN RE: )
) CHAPTER 11
HUNTWAY PARTNERS, L.P., )
) CASE NO. 96-1799 (HSB)
DEBTOR. )
PREPACKAGED PLAN OF REORGANIZATION OF HUNTWAY PARTNERS, L.P.
UNDER CHAPTER 11 OF THE UNITED STATES BANKRUPTCY CODE
Huntway Partners, L.P., a Delaware limited partnership,
proposes the following Chapter 11 Prepackaged Plan pursuant to
subsection 1121(a) of Title 11 of the United States Code:
I.
DEFINITIONS
A. GENERAL PROVISIONS.
Unless the context otherwise requires, the following terms
shall have the following meanings when used in capitalized form in
the Prepackaged Plan. Such meanings shall be equally applicable to
both the singular and plural forms of such terms. The words
"herein," "hereof" and "hereunder" and other words of similar
import refer to the Prepackaged Plan as a whole and not any
particular section, subsection, or clause contained in the
Prepackaged Plan, unless the context requires otherwise. Whenever
from the context it appears appropriate, each term stated in either
the singular or the plural includes the singular and the plural,
and pronouns stated in the masculine, feminine or neuter gender
include the masculine, feminine and the neuter gender. Any term
used in capitalized form in the Prepackaged Plan that is not
defined herein but that is used in the Bankruptcy Code or the
Bankruptcy Rules shall have the meaning assigned to such term in
the Bankruptcy Code or the Bankruptcy Rules, as the case may be.
B. DEFINED TERMS
1. ADMINISTRATIVE EXPENSE means any cost or expense of
administration of the Prepackaged Chapter 11 Case under
subsections 503(b) and 507(a)(1) of the Bankruptcy Code, including,
without limitation, any actual and necessary expenses of preserving
the Estate of Huntway, any actual and necessary expenses of
operating the business of Huntway, all compensation or
reimbursement of expenses to the extent approved by the Bankruptcy
Court under Section 330 or Section 503 of the Bankruptcy Code,
including the fees and expenses incurred during the Prepackaged
Chapter 11 Case by the trustees serving under the Old
Collateralized Note Indenture, the Old Subordinated Note Indenture
and the Old Junior Subordinated Note Indenture and any fees or
charges assessed against the Estate of Huntway under Section 1930,
Chapter 123 of Title 28 of the United States Code.
2. AGREEMENT OF UNDERSTANDING means the Amended and Restated
Agreement of Understanding dated as of July 15, 1996 among Huntway,
Sunbelt, the Senior Lenders, the Junior Lenders, the General
Partner, the Special Managing Partner and the other parties
thereto, as such agreement may be amended from time to time.
3. ALLOWED means with respect to any Claim, such claim, to
the extent (i) proof or application for allowance of which was
timely and properly filed or, if no proof of claim or application
for allowance was properly filed, which has been orhereafter is
listed by the Debtor on its Schedules, as liquidated in amount and
not disputed orcontingent, and, in either case, as to which no
objection to the allowance thereof has been interposed on or before
any applicable period of limitation fixed by the Bankruptcy Code,
the Bankruptcy Rules, or the Bankruptcy Court, or as to which any
objection has been determined by a Final Order of the Bankruptcy
Court to the extent such objection is determined in favor of the
respective Holder or as to which any such objection has been
settled by the parties thereto or (ii) such Claim is allowed
pursuant to the Prepackaged Plan. Notwithstanding the foregoing,
except for claimants under rejected executory contracts and
unexpired leases who must file proofs of claim, Holders of Class 3
Claims and Class 4 Claims will be treated as if the Prepackaged
Chapter 11 Case had not been filed (except as otherwise provided
herein), and the determination of whether any Class 3 Claim or
Class 4 Claim will be paid and/or the amount of any Class 3 Claim
or Class 4 Claim (which, subject to Bankruptcy Court approval,
shall not be listed on the Schedules, and as to which no proof of
Claim need be filed) will be determined, resolved or adjudicated as
if the Prepackaged Chapter 11 Case had not been commenced. Allowed
means, with respect to Equity Interests, such Equity Interests that
are listed on Huntway's transfer ledgers.
4. BALLOTS means the ballots accompanying the Disclosure
Statement, the Prepackaged Plan and the other Solicitation
Materials upon which Impaired Creditors and Equity Holders shall
have indicated their acceptance or rejection of the Prepackaged
Plan in accordance with the Prepackaged Plan and the Voting
Instructions.
5. BANKERS TRUST means Bankers Trust Company, a New York
banking corporation.
6. BANKRUPTCY CODE means Title I of the Bankruptcy Reform
Act of 1978, as amended from time to time, set forth in
Sections 101 et seq. of Title 11 of the United States Code and
applicable portions of Titles 18 and 28 of the United States Code,
as amended from time to time.
7. BANKRUPTCY COURT means the United States District Court
having jurisdiction over the Prepackaged Chapter 11 Case and, to
the extent of any reference made pursuant to Section 157 of
Title 28 of the United States Code, the unit of such District Court
constituted pursuant to Section 151 of Title 28 of the United
States Code.
8. BANKRUPTCY RULES means the Federal Rules of Bankruptcy
Procedure, as amended from time to time, as applicable to the
Prepackaged Chapter 11 Case, promulgated under 28 U.S.C. Section
2075 and the general and local rules, if any, of the Bankruptcy
Court.
9. BOARD means the Board of Directors of Reprise Holdings,
Inc., the sole general partner of the General Partner.
10. BUSINESS DAY means any day on which commercial banks are
required to be open for business in New York, New York.
11. CASH means cash and cash equivalents.
12. CLAIM means: (a) any right to payment from Huntway
whether or not such right is reduced to judgment, liquidated,
unliquidated, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured; or (b) any right to an
equitable remedy for breach of performance if such performance
gives rise to a right of payment from Huntway whether or not such
right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed, undisputed, secured or
unsecured.
13. CLASS means a category of Holders of Claims or Equity
Interests as set forth in Section II of the Prepackaged Plan.
14. CLASS 2 CLAIM means a Class 2A Claim, a Class 2B Claim or
a Class 2C Claim.
15. COMMITTEE means a statutory official committee of
unsecured creditors appointed in the Prepackaged Chapter 11 Case
pursuant to Section 1102 of the Bankruptcy Code, if any.
16. COMMON UNITS means the common limited partnership units
of Huntway, of which 11,556,250 units were issued and outstanding
as of June 30, 1996 prior to the Effective Date, and the
25,342,654 common limited partnership units of Reorganized Huntway
which will be issued and outstanding on the Effective Date of the
Prepackaged Plan.
17. CONFIRMATION DATE means the date on which the
Confirmation Order is entered within the meaning of Bankruptcy
Rules 5003 and 9021.
18. CONFIRMATION ORDER means the order of the Bankruptcy
Court confirming the Prepackaged Plan in accordance with the
provisions of Chapter 11 of the Bankruptcy Code.
19. CONSUMMATION means the occurrence of the Effective Date.
20. CREDITOR means any Holder of a Claim.
21. DANESH OPTIONS means the options issued by Huntway to
Andre Danesh pursuant to the Option Agreement dated March 13, 1996,
as amended.
22. DEBTOR means Huntway, as debtor and debtor-in-possession
in the Prepackaged Chapter 11 Case.
23. DIP LC AGREEMENT means the Postpetition Letter of Credit
Agreement dated as of November 12, 1996, between Huntway and
Bankers Trust, as the Postpetition Letter of Credit Bank.
24. DISCLOSURE STATEMENT means the written Consent
Solicitation and Disclosure Statement dated October 10, 1996 (and
all Exhibits and Schedules annexed thereto or referred to therein)
that describes, among other things, the Prepackaged Plan, as it may
have been amended or supplemented from time to time, that is
prepared and distributed in accordance with Section 1125
or 1126(b), as applicable, and Section 1145 of the Bankruptcy Code
and Bankruptcy Rule 3018(b).
25. DISPUTED means with respect to a Claim, any Claim or
portion thereof (other than a Class 2 Claim, Class 3 Claim (other
than claimants under rejected executory contracts and unexpired
leases), Class 4 Claim (other than claimants under rejected
executory contracts and unexpired leases), or a Class 5 Claim):
(i) listed on the Schedules as unliquidated, disputed or
contingent; or (ii) as to which the Debtor or any other party in
interest has interposed an objection or request for estimation in
accordance with the Bankruptcy Code and the Bankruptcy Rules, which
objection or request for estimation has not been withdrawn or
determined by a Final Order.
26. EFFECTIVE DATE means the date selected by Huntway which
shall be no later than the thirtieth (30th) Business Day after the
date on which all of the conditions specified in both
Section VII.A. and VII.B. of the Prepackaged Plan have been
(i) satisfied or (ii) waived pursuant to Section VII.C.
27. EQUITY INTEREST means any equity interest in Huntway
represented by the General Partner Interests, the Common Units, the
Danesh Options, the Warrants and the Existing Unit Options.
28. ESTATE means the estate of the Debtor created by
Section 541 of the Bankruptcy Code upon the commencement of the
Prepackaged Chapter 11 Case.
29. EXISTING INTERCREDITOR AGREEMENT means that certain
Intercreditor and Collateral Trust Agreement dated as of June 22,
1993, by and among Bankers Trust, as LOC Bank, the financial
institutions named therein and United States Trust Company of New
York, as Collateral Agent.
30. EXISTING OPTION PLAN means the Partnership's option plan
entitled "1989 Salaried Employee Partnership Unit Option Plan."
31. EXISTING UNIT OPTIONS means the options to purchase
Common Units of Huntway granted and outstanding under the Existing
Option Plan.
32. EXPIRATION DATE means 5:00 p.m., New York time on
November 7, 1996, unless Huntway, in its sole discretion, extends
the period during which Ballots and Master Ballots will be accepted
by Huntway, in which case Expiration Date shall mean the last time
and date to which the solicitation of Ballots and Master Ballots is
extended.
33. FINAL DECREE means the decree contemplated under
Bankruptcy Rule 3022.
34. FINAL ORDER means an order of the Bankruptcy Court:
(i) as to which the time to appeal, petition for
certiorari, or motion for reargument, rehearing or
new trial has expired and as to which no appeal,
petition for certiorari, or other proceedings for
reargument, rehearing or new trial shall then be
pending, or
(ii) as to which any right to appeal, petition for
certiorari, reargue, rehear or retry shall have
been waived in writing in form and substance
satisfactory to the Debtor, or
(iii) in the event that an appeal, writ of certiorari, or
reargument or rehearing or new trial has been
sought, as to which (x) such order of the
Bankruptcy Court shall have been affirmed by the
highest court to which such order was appealed,
(y) certiorari has been denied as to such order, or
(z) reargument or rehearing or new trial from such
order shall have been denied, and in each case, the
time to take any further appeal, petition for
certiorari or move for reargument, rehearing or new
trial shall have expired.
35. GENERAL PARTNER means Huntway Managing Partner, L.P.,
a Delaware limited partnership and Huntway's managing general
partner.
36. GENERAL PARTNER INTEREST means the general partner
interests in Huntway held by the General Partner and the Special
Managing Partner.
37. HOLDER means any entity holding an Equity Interest or
Claim, and with respect to a vote on the Prepackaged Plan, means
the holder of the beneficial interest in such Claim or Equity
Interest as of the Record Date or any authorized signatory who has
completed and executed a Ballot or on whose behalf a Master Ballot
has been completed and executed in accordance with the Voting
Instructions.
38. HUNTWAY means Huntway Partners, L.P., a Delaware limited
partnership.
39. IMPAIRED CLAIM means a Claim classified in an Impaired
Class.
40. IMPAIRED CLASS means a Class that is impaired within the
meaning of Section 1124 of the Bankruptcy Code.
41. INFORMATION AGENT means MacKenzie Partners, Inc.
42. JUNIOR LENDER CLAIMS means the claims against Huntway
held by the Junior Lenders under the Old Junior Subordinated Notes
and Old Junior Subordinated Debenture Indenture.
43. JUNIOR LENDERS means First Chicago Equity Corporation
(f/k/a First Capital Corporation of Chicago) and Madison Dearborn
Partners III, L.P.
44. MASTER BALLOT means the master ballots accompanying the
Disclosure Statement, Prepackaged Plan and the other Solicitation
Materials upon which nominees for Holders of the beneficial
interest of Class 7 Equity Interests shall have indicated the
acceptance or rejection of the Prepackaged Plan, in accordance with
the Prepackaged Plan and the Voting Instructions.
45. NEW COLLATERAL DOCUMENTS means the Amended and Restated
Collateral Documents (as that term is defined in the New
Intercreditor Agreement) dated as of the Effective Date, pursuant
to which each of Reorganized Huntway, Sunbelt, the General Partner
and the Special Managing Partner grants or pledges a security
interest in its real and personal property or General Partner
Interests, as the case may be, to secure their respective
obligations under the New Collateralized Note Indenture, the New
Senior Notes, the Post-Restructuring Letter of Credit Agreement and
the New Guaranties.
46. NEW COLLATERALIZED NOTE INDENTURE means an Indenture
among Reorganized Huntway, Sunbelt, and Fleet National Bank, as
Trustee, respecting the New Senior Notes issued by Reorganized
Huntway pursuant to the Prepackaged Plan. The New Collateralized
Note Indenture shall be substantially as described in the
Disclosure Statement and substantially in the form of Exhibit "A"
to the Prepackaged Plan Supplement.
47. NEW GUARANTIES means the Amended and Restated Guaranties
(as such term is defined in the New Intercreditor Agreement) dated
as of the Effective Date, pursuant to which each of Sunbelt, the
General Partner and the Special Managing Partner guaranty the
payment of Reorganized Huntway's obligations under the New
Collateralized Note Indenture, the New Senior Notes and the
Post-Restructuring Letter of Credit Agreement.
48. NEW INTERCREDITOR AGREEMENT means that certain Amended
and Restated Intercreditor and Collateral Trust Agreement dated as
of the Effective Date by and among Reorganized Huntway, Bankers
Trust, as LOC Bank, the Parties receiving New Senior Notes, United
States Trust Company of New York, as Collateral Agent, and the
trustee under the New Collateralized Note Indenture substantially
in the form of Exhibit "C" to the Prepackaged Plan Supplement, or
another intercreditor agreement in substantially the form of
Exhibit "C" to the Prepackaged Plan Supplement.
49. NEW JUNIOR NOTES means Reorganized Huntway's Junior
Subordinated Notes Due 2005, in the original aggregate principal
amount of $2,070,000, to be issued in accordance with the
provisions of the Prepackaged Plan and governed by the New Junior
Subordinated Debenture Indenture. Each New Junior Note shall be
substantially in the form attached as Exhibit "A" to the New Junior
Subordinated Debenture Indenture.
50. NEW JUNIOR SUBORDINATED DEBENTURE INDENTURE means an
Indenture among Reorganized Huntway, Sunbelt and IBJ Schroder
Bank & Trust Company, as Trustee, respecting the New Junior Notes
issued by Reorganized Huntway pursuant to the Prepackaged Plan.
The New Junior Subordinated Debenture Indenture shall be
substantially as described in the Disclosure Statement and shall be
substantially in the form of Exhibit "B" to the Prepackaged Plan
Supplement.
51. NEW SENIOR NOTES means the New Senior Notes (Other) and
the New Senior Notes (Sunbelt IDB).
52. NEW SENIOR NOTES (OTHER) means Reorganized Huntway's 12%
Senior Secured Notes (Other) due 2005 in the original aggregate
principal amount of $14,400,000, to be issued in accordance with
the provisions of the Prepackaged Plan and governed by the terms of
the New Collateralized Note Indenture. Each New Senior Note
(Other) shall be substantially in the form attached as Exhibit C to
the New Collateralized Note Indenture.
53. NEW SENIOR NOTES (SUNBELT IDB) means Reorganized
Huntway's 12% Senior Secured Notes (Sunbelt IDB) due 2005 in the
original aggregate principal amount of $9,100,000, to be issued in
accordance with the provisions of the Prepackaged Plan and governed
by the terms of the New Collateralized Note Indenture. Each New
Senior Note (Sunbelt IDB) shall be substantially in the form
attached as Exhibit B to the New Collateralized Note Indenture.
54. NEW UNIT OPTION PLAN means the 1996 Huntway
Partners, L.P. Employee Incentive Option Plan proposed to be
implemented by Huntway.
55. OLD COLLATERALIZED NOTE INDENTURE means the
Collateralized Note Indenture, dated as of June 23, 1993, as
amended, among Huntway, Sunbelt and Fleet National Bank of
Massachusetts, formerly known as Shawmut Bank, N.A., as trustee.
56. OLD COLLATERALIZED NOTES means the 8% Senior Secured
Notes Due 2000, issued under the Old Collateralized Note Indenture,
together with all interest earned thereon, including Secondary
Securities issued with respect thereto.
57. OLD JUNIOR SUBORDINATED DEBENTURE INDENTURE means the
Junior Subordinated Debenture Indenture dated as of June 23, 1993,
as amended, among Huntway, Sunbelt and IBJ Schroder Bank & Trust
Company, as trustee.
58. OLD JUNIOR SUBORDINATED NOTES means the Increasing Rate
Junior Subordinated Debentures Due 2020 issued under the Old Junior
Subordinated Note Indenture, together with all interest earned
thereon, including Secondary Securities issued with respect
thereto.
59. OLD LETTER OF CREDIT AGREEMENT means the Letter of Credit
and Reimbursement Agreement dated as of June 22, 1993 by and among
Bankers Trust, Huntway and Sunbelt.
60. OLD SUBORDINATED NOTE INDENTURE means the Subordinated
Note Indenture dated as of June 23, 1993 among Huntway, Sunbelt and
Fleet Bank National Association, a national banking association,
formerly known as Shawmut Bank Connecticut National Association,
as trustee.
61. OLD SUBORDINATED NOTES means the Increasing Rate
Subordinated Notes Due 2008 issued under the Old Subordinated Note
Indenture, together with all interest earned thereon, including
Secondary Securities issued with respect thereto.
62. OPERATING COMMITTEE means the Special Operating Committee
of the Huntway Division of Reprise Holding, Inc., a Texas
corporation.
63. OTHER PRIORITY CLAIMS means any Claims accorded a
priority and right of payment under subsection 507(a) of the
Bankruptcy Code, other than a Priority Tax Claim or an
Administrative Expense.
64. OTHER SECURED CLAIM means any Secured Claim that is not
a Senior Lender Claim.
65. PETITION DATE means the date on which the Debtor's
petition for relief commencing the Prepackaged Chapter 11 Case is
filed.
66. POST-RESTRUCTURING LETTER OF CREDIT AGREEMENT means
either (i) a Letter of Credit Agreement to be entered into on the
Effective Date between Bankers Trust and Reorganized Huntway or
(ii) the Old Letter of Credit Agreement as amended by a First
Amendment to Letter of Credit and Reimbursement Agreement to be
entered into on the Effective Date by Bankers Trust, Reorganized
Huntway, and Sunbelt.
67. PREPACKAGED CHAPTER 11 CASE means the case under
Chapter 11 of the Bankruptcy Code, commenced by the Debtor in the
Bankruptcy Court, and styled "In re: Huntway Partners, L.P."
68. PREPACKAGED PLAN means this Chapter 11 Prepackaged Plan
of Reorganization, either in its present form or as it may be
altered, amended, modified or supplemented from time to time in
accordance with the Prepackaged Plan, the Bankruptcy Code and the
Bankruptcy Rules with the prior consent of the Senior Lenders as
prescribed by, and to the extent required by, the Agreement of
Understanding.
69. PREPACKAGED PLAN SUPPLEMENT means the documents specified
in Section I.C. hereof.
70. PRIORITY TAX CLAIM means a Claim of a governmental unit of
the kind specified in subsection 507(a)(8) of the Bankruptcy Code.
71. PROFESSIONAL FEE CLAIM means those fees and expenses
claimed by professionals retained through a Bankruptcy Court order,
pursuant to Sections 330 and 331 of the Bankruptcy Code, and unpaid
as of the Confirmation Date.
72. RECORD DATE means the close of business on September 16,
1996.
73. REORGANIZED HUNTWAY means Huntway or any successor
thereto, by merger, consolidation or otherwise, on and after the
Effective Date.
74. SCHEDULES means the schedules of assets and liabilities,
schedules of executory contracts, and the statement of financial
affairs to be filed by the Debtor to the extent required by
Section 521 of the Bankruptcy Code, the Official Bankruptcy Forms,
the Bankruptcy Rules and the Bankruptcy Court.
75. SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP means the Amended and Restated Agreement of Limited
Partnership of Reorganized Huntway, as amended as described in
Section V.F. of the Prepackaged Plan, which shall be substantially
in the form set forth as Appendix A to the Disclosure Statement,
and which Agreement, as so amended, is in compliance with
Section 1123(a)(6) of the Bankruptcy Code.
76. SECURED CLAIM means a Claim against Huntway held by any
entity, including a judgment lien creditor of Huntway, to the
extent of the value of any interest in property of the Estate
securing such Claim.
77. SENIOR LENDER CLAIMS means the Claims of the Senior
Lenders arising under the Old Collateralized Note Indenture, the
Old Subordinated Note Indenture, the Old Collateralized Notes and
the Old Subordinated Notes.
78. SENIOR LENDERS means collectively Bankers Trust,
Massachusetts Mutual Life Insurance Company, Ryback Management
Corporation, Oppenheimer & Co., Inc., for itself and as agent, and
Mellon Bank, N.A., as Trustee for First Plaza Group Trust, as
directed by Contrarian Capital Advisors, L.L.C., in each case, or
their respective permitted successors, assigns and transferees.
79. SOLICITATION MATERIALS means the Disclosure Statement,
including the appendices thereto, the forms of Ballots and Master
Ballots and the Voting Instructions.
80. SPECIAL MANAGING PARTNER means Huntway Holdings, L.P.,
a Delaware limited partnership and Huntway's special managing
general partner.
81. SUNBELT means Sunbelt Refining Company, L.P., a Delaware
limited partnership.
82. UNITHOLDERS AGREEMENT means the Unitholders Agreement
dated as of the Effective Date by and among Reorganized Huntway and
the Holders of Allowed Class 2 Claims, Allowed Class 5 Claims and
Allowed Class 6 Equity Interests, which provides for, inter alia,
the issuance of additional units after the Effective Date to the
Holders of Allowed Class 2 Claims and Allowed Class 6 Equity
Interests and restricts the trading in all Common Units issued to
Holders of Allowed Class 2 Claims, Allowed Class 5 Claims and
Allowed Class 6 Equity Interests, as more fully described in the
Disclosure Statement.
83. UNIT OPTIONS mean the options to purchase Common Units of
Reorganized Huntway granted under the New Unit Option Plan.
84. UNIMPAIRED means a Claim in a Class that is not impaired
within the meaning of Section 1124 of the Bankruptcy Code.
85. UNIMPAIRED CLASS means a Class that is not impaired
within the meaning of Section 1124 of the Bankruptcy Code.
86. UNSECURED CLAIM means any Claim that is not an Other
Secured Claim, a Senior Lender Claim, a Junior Lender Claim, an
Administrative Expense, a Priority Tax Claim or an Other Priority
Claim.
87. VOTING AGENT means MacKenzie Partners, Inc.
88. VOTING INSTRUCTIONS means the instructions for voting on
the Prepackaged Plan contained in the section of the Disclosure
Statement entitled "VOTING PROCEDURES" and in the Ballots and the
Master Ballots.
89. WARRANTS means the Warrants issued by Huntway on June 22,
1993 and any replacement thereof, to the extent such Warrants have
not been surrendered and canceled prior to the Petition Date.
C. PREPACKAGED PLAN SUPPLEMENT.
The form of each of the New Collateralized Note Indenture, the
New Junior Subordinated Debenture Indenture, the Post-Restructuring
Letter of Credit Agreement, the Intercreditor Agreement, the
Unitholders Agreement and the Second Amended and Restated Agreement
of Limited Partnership are contained in the Prepackaged Plan
Supplement filed with the Bankruptcy Court, a copy of which is
available from the Information Agent upon request.
D. EXHIBITS.
All Exhibits to the Prepackaged Plan and the Plan Supplement
are hereby incorporated into and made a part of this Prepackaged
Plan as if set forth in full herein.
II.
CLASSIFICATION AND TREATMENT OF CLAIMS
AND EQUITY INTERESTS
A. SUMMARY.
The categories of Claims and Equity Interests listed below
classify Claims and Equity Interests of Huntway for all purposes,
including voting, confirmation and distribution pursuant to the
Prepackaged Plan.
<TABLE>
<CAPTION>
CLASS STATUS
<S> <C> <C>
Class 1: Other Priority Claims Unimpaired--Not
Entitled to Vote
Class 2: Senior Lender Claims Impaired--Entitled to
Vote
Class 3: Other Secured Claims Unimpaired--Not
Entitled to Vote
Class 4: Unsecured Claims Unimpaired--Not
Entitled to Vote
Class 5: Junior Lender Claims Impaired--Entitled to
Vote
Class 6: Equity Interests of Holders Impaired--Entitled to
of Warrants Vote
Class 7: Equity Interests of Holders Impaired--Entitled to
of Common Units Vote
Class 8: Equity Interests of Holders Impaired--Entitled to
of Existing
Unit Options Vote
Class 9: Equity Interests of Holders Unimpaired -- Not of
Danesh Options
Entitled to Vote
Class 10: Equity Interests of the Impaired Entitled to
General Partner
and Vote the Special
Managing Partner
</TABLE>
B. ADMINISTRATIVE EXPENSES.
Huntway shall pay each Professional Fee Claim, to the extent
approved by the Bankruptcy Court, and each other Allowed
Administrative Expense in full, in Cash, on the later of the
Effective Date or the date such Administrative Expense becomes
Allowed, except to the extent that the Holder of an Allowed
Administrative Expense agrees to a different treatment; provided,
however, that Allowed Administrative Expenses representing
obligations incurred in the ordinary course of business or assumed
pursuant to an order of the Bankruptcy Court by the Debtor shall be
paid in full or be performed by Huntway in the ordinary course of
business in accordance with the terms and conditions of the
particular transaction and any agreements and instruments
relating thereto.
C. PRIORITY TAX CLAIMS.
Huntway shall pay each Allowed Priority Tax Claim in full, in
Cash, on the Effective Date or as soon thereafter as is
practicable, except to the extent that the Holder of an Allowed
Priority Tax Claim agrees to a different treatment; provided,
however, at Huntway's option, Huntway may pay Allowed Priority Tax
Claims plus interest accrued thereon (at amounts and a rate to be
agreed upon between Huntway and the Holder of the Claim, or in the
absence of such agreement, as determined by the Bankruptcy Court)
over a period not exceeding six (6) years after the date of
assessment of the Claims, as provided in subsection 1129(a)(9)(C)
of the Bankruptcy Code.
D. CLASSIFICATION AND TREATMENT.
CLASS 1: OTHER PRIORITY CLAIMS
1. CLASSIFICATION: Class 1 consists of all Other Priority
Claims against Huntway.
2. TREATMENT: Huntway shall pay all Allowed Claims in Class
1
in full, in Cash, on the Effective Date or as soon thereafter as is
practicable, except to the extent the Holder of an Allowed Claim in
Class 1 agrees to a different treatment; provided, however, that
Allowed Class 1 Claims representing obligations incurred in the
ordinary course of business, shall be paid in full or performed by
Huntway in the ordinary course of business in accordance with the
terms and conditions of the particular transaction and any
agreements and instruments relating thereto. Class 1 is not
Impaired, and the Holders of Claims in Class 1 are not entitled to
vote to accept or to reject the Prepackaged Plan.
CLASS 2: SENIOR LENDER CLAIMS.
1. CLASSIFICATION: Class 2A consists of all of the Senior
Lender Claims of Bankers Trust. Class 2B consists of all Senior
Lender Claims to the extent such Claims are Secured Claims (other
than the Claims of Bankers Trust). Class 2C consists of the Senior
Lender Claims to the extent such Claims are not Secured Claims
(other than the Claims of Bankers Trust).
2. TREATMENT: On the Effective Date, the Allowed Senior
Lender Claims shall continue as obligations of Reorganized Huntway
as provided and modified under the terms and conditions of the New
Collateralized Note Indenture, the New Senior Notes (Other) and the
New Senior Notes (Sunbelt IDB) and Reorganized Huntway's
obligations with respect to the Senior Lenders shall be as provided
thereunder. The Holder of Class 2A Claims shall receive on the
Effective Date (a) $9,100,000 in New Senior Notes (Sunbelt IDB),
(b) $2,844,345 in New Senior Notes (Other) and (c) 3,220,227 Common
Units, representing approximately 12.71% of the Common Units issued
and outstanding on the Effective Date, (d) reimbursement of all
fees and expenses of its counsel incurred in connection with the
Old Collateralized Note Indenture, the Old Subordinated Note
Indenture, the Prepackaged Chapter 11 Case, the Prepackaged Plan,
and the transactions contemplated thereby, and (e) unless such
Holder elects not to provide the release set forth in subsection
V.I(ii), the release set forth in Section V.I(i). Each Holder of
Class 2B and Class 2C Claims shall receive on the Effective Date
(a) its pro rata share of $11,555,656 in New Senior Notes (Other),
(b) its pro rata share of 3,115,436 Common Units, representing
approximately 12.29% of the Common Units issued and outstanding on
the Effective Date and (c) the release set forth in Section V.I(i),
unless such Holder elects not to provide the release set forth in
subsection V.I(ii). The Holders of Class 2A, 2B and Class 2C
Claims will also receive such number of additional Common Units
from time to time as are sufficient to prevent dilution caused by
the issuance from time to time to Holders of (a) Class 5 Claims of
Common Units as payment of accrued interest on the New Junior Notes
and (b) Class 8 Equity Interests of additional Unit Options (or
equivalent rights to receive Common Units) and Class 6 Equity
Interests and Class 5 Claims of additional Common Units, in each
case issued to prevent dilution to such Holders. The rights of the
Holders of New Senior Notes will be subject to the New
Intercreditor Agreement. The rights of the Holders of Common Units
issued in respect of Class 2 Claims will be subject to the
Unitholders Agreement. Class 2A, Class 2B and Class 2C are
Impaired and the Holders of Allowed Class 2A Claims, 2B Claims and
2C Claims are entitled to vote on the Prepackaged Plan. With
respect to each of Class 2A, 2B and 2C, approval of the Prepackaged
Plan by Holders of at least two-thirds in dollar amount and more
than one-half in number of Allowed Claims in such Class with
respect to which votes are received is required to confirm the
Prepackaged Plan.
3. ALLOWANCE OF CLAIMS: The Claims of the Senior Lenders
under the Old Collateralized Note Indenture and the Old
Subordinated Note Indenture, including interest (at the rates set
forth therein), fees, costs and expenses provided thereunder,
including postpetition interest, fees, costs and expenses pursuant
to Section 506(b) of the Bankruptcy Code constitute Allowed Claims.
Confirmation of the Prepackaged Plan shall constitute a finding
that the Allowed Senior Lender Claims and the liens securing such
claims are fully valid, binding, enforceable, unavoidable
obligations and, with respect to the liens, are properly and
timely perfected.
CLASS 3: OTHER SECURED CLAIMS.
1. CLASSIFICATION: Class 3 consists of Other Secured Claims
against Huntway.
2. TREATMENT: Class 3 is Unimpaired and the Holders of Claims
in Class 3 are not entitled to vote to accept or reject the
Prepackaged Plan. The legal, equitable and contractual rights of
the Holders of Class 3 Claims are unaltered by the Prepackaged Plan
and on the Effective Date, and subject to the requirements of
Section 1124(2) of the Bankruptcy Code, the legal, equitable and
contractual rights of the Holders of Class 3 Claims shall be
reinstated in full, in accordance with the terms of the prepetition
agreements, rights, or obligations of Huntway respecting such
Class 3 Claims; provided, however, that the maturity date or dates
of all Class 3 Claims shall be reinstated to the date or dates
which existed prior to the date of any acceleration of such Class
3
Claims, subject to legal and equitable rights of the parties with
respect to such Claims as they existed immediately prior to the
filing of the Prepackaged Plan as if the Prepackaged Chapter 11
Case had not been filed. Huntway will make payments required by
Section 1124(2) of the Bankruptcy Code to Holders of Class 3 Claims
on the Effective Date and will cure any defaults of such Class 3
Claims to the extent required by Section 1124(2)(A) of the
Bankruptcy Code, and any defaults of such Class 3 Claims which
existed immediately prior to the filing of the Prepackaged
Chapter 11 Case shall be deemed cured upon the Effective Date.
Subject to the foregoing, and except for claimants under rejected
executory contracts and unexpired leases, who must file proofs of
claim, Holders of Class 3 Claims will be treated as if the
Prepackaged Chapter 11 Case had not been filed (except as otherwise
provided herein), and the determination of whether any Class 3
Claim will be paid and/or the amount of any Class 3 Claim (which,
subject to Bankruptcy Court approval, shall not be listed on the
Schedules, and as to which no proof of claim need be filed) will be
determined, resolved or adjudicated as if the Prepackaged
Chapter 11 Case had not been commenced. Notwithstanding the
foregoing, Holders of Class 3 Claims under rejected executory
contracts and unexpired leases must file proofs of claim, and will
be subject to the provisions of the Bankruptcy Code.
3. RESERVATION OF RIGHTS: Nothing in the Prepackaged Plan,
the Confirmation Order or any order in aid of confirmation of the
Prepackaged Plan, shall constitute, or be deemed to constitute,
a waiver or release of any claim, cause of action, right of setoff,
or other legal or equitable defense which Huntway had immediately
prior to the commencement of the Prepackaged Chapter 11 Case,
against or with respect to any Class 3 Claim. During the pendency
of the Prepackaged Chapter 11 Case and upon confirmation thereof
Huntway shall have, retain, reserve and be entitled to assert all
such claims, causes of action, rights of setoff and other legal or
equitable rights respecting any Class 3 Claim which it had
immediately prior to the commencement of the Prepackaged Chapter 11
Case to the same extent as if the Prepackaged Chapter 11 Case had
not been commenced. No Class 3 Claim shall be deemed Allowed or
not Allowed by virtue of the Prepackaged Plan or confirmation of
the Prepackaged Plan.
CLASS 4: UNSECURED CLAIMS.
1. CLASSIFICATION: Class 4 consists of Unsecured Claims
against Huntway.
2. TREATMENT: Class 4 is Unimpaired and the Holders of Claims
in Class 4 are not entitled to vote to accept or to reject the
Prepackaged Plan. The legal, equitable and contractual rights of
the holders of Class 4 Claims are unaltered by the Prepackaged Plan
and on the Effective Date, and subject to the requirements of
Section 1124(2) of the Bankruptcy Code, the legal, equitable and
contractual rights of the Holders of Class 4 Claims shall
be reinstated in full, in accordance with the terms of prepetition
agreements, rights or obligations of Huntway respecting such
Class 4 Claims; provided, however, that the maturity date or dates
of all Class 4 Claims shall be reinstated to the date or dates
which existed prior to the date of any acceleration of such Class
4
Claims, subject to the legal and equitable rights of the parties
with respect to such Class 4 Claims as they existed immediately
prior to the filing of the Prepackaged Plan. Huntway will make
payments required by Section 1124(2) of the Bankruptcy Code,
together with any interest from the Petition Date required to be
paid to maintain the Unimpaired status of Class 4, to Holders of
Class 4 Claims on the Effective Date and will cure any defaults of
such Class 4 Claims to the extent required by Section 1124(2)(A) of
the Bankruptcy Code, and any defaults of such Class 4 Claims which
existed immediately prior to the filing of the Prepackaged Chapter
11 Case shall be deemed cured upon the Effective Date. Subject to
the foregoing, and except for claimants under rejected executory
contracts and unexpired leases, who must file proofs of claim,
Holders of Class 4 Claims will be treated as if the Prepackaged
Chapter 11 Case had not been filed (except as otherwise provided
herein), and the determination of whether any Class 4 Claim will be
paid and/or the amount of any Class 4 Claim (which, subject to
Bankruptcy Court approval, shall not be listed on the Schedules,
and as to which no proof of claim need be filed) will be
determined, resolved or adjudicated as if the Prepackaged Chapter
11 Case had not been commenced. Notwithstanding the foregoing,
Holders of Class 4 Claims under rejected executory contracts and
unexpired leases must file proofs of claim, and will be subject to
the provisions of the Bankruptcy Code.
3. RESERVATION OF RIGHTS: Nothing in the Prepackaged Plan,
shall constitute, or be deemed to constitute, a waiver or release
of any claim, cause of action, right of setoff, or other legal or
equitable defense which Huntway had immediately prior to the
commencement of the Prepackaged Chapter 11 Case, against or with
respect to any Class 4 Claim. During the pendency of the
Prepackaged Chapter 11 Case and upon confirmation thereof Huntway
shall have, retain, reserve and be entitled to assert all such
claims, causes of action, rights of setoff and other legal or
equitable defenses which it had immediately prior to the
commencement of the Prepackaged Chapter 11 Case fully as if the
Prepackaged Chapter 11 Case had not been commenced. No Class 4
Claim shall be deemed Allowed or not Allowed by virtue of the
Prepackaged Plan or confirmation of the Prepackaged Plan.
CLASS 5: JUNIOR LENDER CLAIMS.
1. CLASSIFICATION: Class 5 consists of all Junior Lender
Claims.
2. TREATMENT: On the Effective Date, a Holder of an Allowed
Class 5 Claim shall receive, in full and final satisfaction of such
Holder's Allowed Class 5 Claim, its pro rata share of
(a) $2,070,000 principal of New Junior Notes; and
(b) 1,115,077 Common Units, representing 4.4% of Reorganized
Huntway's Common Units issued and outstanding on the Effective
Date. The Holders of Class 5 Claims will also receive such number
of additional Common Units from time to time as are sufficient to
prevent dilution caused by the issuance from time to time to
Holders of (a) Class 5 Claims of Common Units as payment of accrued
interest on the New Junior Notes and (b) Class 8 Equity Interests
of additional Unit Options (or equivalent rights to receive Common
Units) and Class 2 and Class 6 Equity Interests of additional
Common Units, in each case issued to prevent dilution to such
Holders. The rights of the Holders of Common Units issued in
respect of Class 5 Claims will be subject to the Unitholders
Agreement. Class 5 is Impaired. Holders of Class 5 Claims are
entitled to vote on the Prepackaged Plan. Approval of the
Prepackaged Plan by Holders of at least two-thirds in dollar amount
and more than one-half in number of Allowed Class 5 Claims with
respect to which votes are received is required to confirm the
Prepackaged Plan.
3. ALLOWED CLAIMS: The Claims of the Junior Lenders under the
Old Junior Subordinated Debenture Indenture constitute Allowed
Claims. Confirmation of the Prepackaged Plan shall constitute
a finding that the Allowed Class 5 Claims are fully valid.
CLASS 6: WARRANTS
1. CLASSIFICATION: CLASS 6 CONSISTS OF ALL WARRANTS.
2. TREATMENT: On the Effective Date, a Holder of an Allowed
Class 6 Equity Interest shall receive such Holder's pro rata share
of 6,335,663 of Reorganized Huntway's Common Units, representing
approximately 25% of Reorganized Huntway's Common Units issued and
outstanding on the Effective Date. The Holders of Class 6 Equity
Interests will also receive such number of additional Common Units
from time to time as are sufficient to prevent dilution caused by
the issuance from time to time to Holders of (a) Class 5 Claims of
Common Units as payment of accrued interest on the New Junior Notes
and (b) Class 8 Equity Interests of additional Unit Options (or
equivalent rights to receive additional Common Units) and Class 2
and 5 Claims of additional Common Units, in each case issued to
prevent dilution to such Holders. The rights of the Holders of
Common Units issued in respect of Class 6 Equity Interests will be
subject to the Unitholders Agreement. Class 6 is Impaired.
Approval of the Prepackaged Plan by Holders of at least two-thirds
in amount of Allowed Class 6 Equity Interests with respect to which
votes are received is required to confirm the Prepackaged Plan.
CLASS 7: COMMON UNITS
1. CLASSIFICATION: Class 7 consists of the Common Units.
2. TREATMENT: On the Effective Date, a Holder of an Allowed
Equity Interest in Class 7 shall retain its Common Units. Class 7
is Impaired. Approval of the Prepackaged Plan by Holders of at
least two-thirds in amount of Allowed Class 7 Equity Interests with
respect to which votes are received is required to confirm the
Prepackaged Plan.
CLASS 8: EXISTING UNIT OPTIONS UNDER THE EXISTING OPTION PLAN
1. CLASSIFICATION: Class 8 consists of the Existing Unit
Options issued under the Existing Option Plan.
2. TREATMENT: On the Effective Date, a Holder of an Allowed
Equity Interest in Class 8 shall be issued such Holder's pro rata
share of 1,022,000 Unit Options under the New Unit Option Plan,
which Unit Options will have terms and conditions in all natural
respects the same as the Existing Unit Options, except that they
shall have an exercise price of $.50 per Common Unit. Holders of
Class 8 Equity Interests will also receive additional Unit Options
for the purchase of Common Units from time to time sufficient to
prevent dilution caused by the issuance from time to time to
Holders of (a) Class 5 Claims of Common Units as payment of accrued
interest on the New Junior Notes and (b) Class 2 Claims, Class 5
Claims and Class 6 Equity Interests of Common Units issued to
prevent dilution to such Holders. On the Effective Date, the
Existing Option Plan shall be terminated and of no further force
and effect. To the extent that any anti-dilution provisions in the
Existing Option Plan may be interpreted to be triggered by
consummation, confirmation of the Prepackaged Plan eliminates:
(i) the rights of Holders of Allowed Equity Interests evidenced by
Existing Unit Options issued under the Existing Option Plan to
receive any additional Common Units or to receive any other type of
security pursuant to such anti-dilution provisions; and (ii) the
authority (whether mandatory or discretionary) of any committee
under the Existing Option Plan or the Board to make adjustments
under the Existing Option Plan on account of the transaction
implemented by the Prepackaged Plan. Class 8 is Impaired.
Approval of the Prepackaged Plan by Holders of at least two-thirds
in amount of Allowed Class 8 Equity Interests with respect to which
votes are received is required to confirm the Prepackaged Plan.
CLASS 9: DANESH OPTIONS
1. CLASSIFICATION: Class 9 consists of Danesh Options.
2. TREATMENT: On the Effective Date, a Holder of an Allowed
Equity Interest in Class 9 shall retain its Danesh Options. The
Holder of all Danesh Options has agreed to the treatment of such
Options under the Prepackaged Plan. Therefore, Class 9 is
Unimpaired and the Holders of Equity Interests in Class 9 are not
entitled to vote to accept or reject the Prepackaged Plan. The
legal, equitable and contractual rights of the Holder of Class 9
Equity Interests, as agreed to by the Holder thereof, are unaltered
by the Prepackaged Plan.
CLASS 10: GENERAL PARTNER INTERESTS
1. CLASSIFICATION: Class 10 consists of the General Partner
Interests.
2. TREATMENT: On the Effective Date, the General Partner and
the Special Managing Partner shall retain their respective General
Partner Interests subject to the New Guaranty and the other New
Collateral Documents to be executed by the General Partner and the
Special Managing Partner as of the Effective Date. Class 10 is
Impaired. Approval of the Prepackaged Plan by Holders of at least
two-thirds in amount of Allowed Class 10 Equity Interests with
respect to which votes are received is required to confirm the
Prepackaged Plan.
III.
ACCEPTANCE OR REJECTION OF THE PREPACKAGED PLAN
A. VOTING BY IMPAIRED CLASSES.
Each Holder of a Claim in Class 2 or Class 5 and each Holder
of an Equity Interest in Class 6, Class 7, Class 8 or Class 10, in
each case as of the Record Date, is entitled to vote either to
accept or to reject the Prepackaged Plan. Only those votes cast by
Holders of Allowed Claims and/or Allowed Equity Interests shall be
counted in determining whether acceptances have been received
sufficient in number and amount to confirm the Prepackaged Plan.
Each Claim or Equity Interest, as applicable, in each of Class 2,
Class 5, Class 6, Class 7, Class 8, Class 9 or Class 10 shall be
deemed to be "Allowed" for purposes of voting on the Prepackaged
Plan unless, prior to the confirmation hearing, the Debtor has
filed an objection to any such Claim or Equity Interest with the
Bankruptcy Court.
Unless the Bankruptcy Court subsequently determines that
Ballots and Master Ballots may be revoked, such Ballots and Master
Ballots will remain in full force and effect until the Bankruptcy
Court determines whether such Ballots and Master Ballots are deemed
to constitute acceptances or rejections of the Prepackaged Plan.
For each Holder of a Class 2 Claim who consents to the
Prepackaged Plan and does not withhold releases in accordance with
Section V.I(ii), the Prepackaged Plan (i) shall release and
discharge such Holder and such Holder's parents, subsidiaries,
affiliates, partners, directors, officers, attorneys, financial
advisors, agents and employees past and present from claims of the
Huntway Releasors (as defined in Section V.I(i)) to the extent set
forth in subsection V.I(i) below, and (ii) shall release and
discharge the Huntway Releasors and each Huntway Releasor's
directors, officers, attorneys, financial advisors, agents and
employees past and present from claims of such Holders to the
extent set forth in subsection V.I(ii).
B. ACCEPTANCE BY IMPAIRED CLASSES.
Class 2A, Class 2B, Class 2C and Class 5 shall have accepted
the Prepackaged Plan if (i) the Holders (other than any Holder
designated under subsection 1126(e) of the Bankruptcy Code) of at
least two-thirds in dollar amount of the Allowed Claims actually
voting in each such Class have voted to accept the Prepackaged Plan
and (ii) the Holders (other than any Holder designated under
subsection 1126(e) of the Bankruptcy Code) of more than one-half in
number of the Allowed Claims actually voting in each such
Class have voted to accept the Prepackaged Plan. An Impaired
Class of Equity Interests shall have accepted the Prepackaged Plan
if the Holders (other than any Holder designated under subsection
1126(e) of the Bankruptcy Code) of at least two-thirds in amount of
Allowed Equity Interests actually voting in such Class have voted
to accept the Prepackaged Plan.
C. PRESUMED ACCEPTANCE OF PREPACKAGED PLAN.
Class 1, Class 3, Class 4 and Class 9 are Unimpaired under the
Prepackaged Plan, and, therefore, are conclusively presumed to have
accepted the Prepackaged Plan.
IV.
PROVISIONS FOR TREATMENT OF PROFESSIONAL FEES AND
DISPUTED, CONTINGENT AND UNLIQUIDATED CLAIMS
A. RESOLUTION OF DISPUTED CLAIMS.
Unless otherwise ordered by the Bankruptcy Court after notice
and a hearing, Huntway shall have the exclusive right to make and
file objections to Claims (other than Class 2 Claims and Class 5
Claims), and shall serve a copy of each objection upon the Holder
of the Disputed Claim to which the objection is made, as well as
counsel for any Committee.
Notwithstanding the foregoing, except as otherwise ordered by
the Court, except for claimants under rejected executory contracts
and unexpired leases, who must file proofs of claim and who will be
subject to the provisions of the Bankruptcy Code, Holders of
Class 3 Claims and Class 4 Claims need not and should not file
proofs of claim with the Bankruptcy Court.
Nothing in the Prepackaged Plan, the Confirmation Order or any
order in aid of confirmation of the Prepackaged Plan, shall
constitute, or be deemed to constitute, a waiver or release of any
claim, cause of action, right of setoff, or other legal or
equitable defense which Huntway had immediately prior to the
commencement of the Prepackaged Chapter 11 Case, against or with
respect to any Claim in Class 3 or Class 4. During the pendency of
the Prepackaged Chapter 11 Case and upon confirmation thereof, the
Debtor shall have, retain, reserve and be entitled to assert all
such claims, causes of action, rights of setoff and other legal or
equitable defenses which it had immediately prior to the
commencement of the Prepackaged Chapter 11 Case fully as if the
Prepackaged Chapter 11 Case had not been commenced; and all of
Huntway's legal and equitable rights respecting any Claim in
Class 3 and Class 4 may be asserted after the Confirmation Date to
the same extent as if the Prepackaged Chapter 11 Case had not been
commenced.
V.
IMPLEMENTATION OF THE PREPACKAGED PLAN
A. ISSUANCE OF NEW SENIOR NOTES, NEW JUNIOR NOTES, COMMON UNITS
AND UNIT OPTIONS.
The issuance of the New Senior Notes, New Junior Notes, Common
Units and Unit Options by Reorganized Huntway is hereby authorized
as follows or to the extent required by the provisions of the
Prepackaged Plan:
1. New Senior Notes which shall be issued on the Effective
Date in an aggregate principal amount of $23,500,000 and
distributed pursuant to the Prepackaged Plan.
2. New Junior Notes, which shall be issued on the Effective
Date in an aggregate principal amount of $2,070,000 and
distributed pursuant to the Prepackaged Plan.
3. Approximately 1,115,077 Common Units, which shall be
issued on the Effective Date to Holder of Class 5 Claims.
4. Approximately 6,335,663 Common Units, which shall be
issued on the Effective Date to Holders of Class 2 Claims
which Units shall be deliverable upon surrender and
cancellation of the Old Collateralized Notes and Old
Subordinated Notes and execution of the New Intercreditor
Agreement and Unitholders Agreement.
5. Approximately 6,335,664 Common Units, which shall be
issued on the Effective Date to Holders of Class 6 Equity
Interests which units shall be deliverable upon surrender
and cancellation of the Warrants and execution of the
Unitholders Agreement.
6. Unit Options exercisable for up to 4,000,000 Common
Units, 2,820,850 of which Unit Options shall be issued,
and distributed pursuant to, the Prepackaged Plan on the
Effective Date.
B. RESTATEMENT OF OLD INDENTURES.
On the Effective Date (i) the Old Collateralized Notes, the
Old Subordinated Notes and the Old Junior Subordinated Notes shall
be canceled, (ii) the Old Collateralized Note Indenture shall be
amended, restated and superseded in its entirety by the New
Collateralized Note Indenture, (iii) the Old Junior Subordinated
Debenture Indenture shall be amended, restated and superseded in
its entirety by the New Junior Subordinated Debenture Indenture,
(iv) the obligations of the Debtor under the Old Subordinated Note
Indenture shall be discharged, and (v) except to the extent that
such obligations are continued under the New Collateralized Note
Indenture and the New Junior Subordinated Debenture Indenture, the
obligations of the Debtor under the Old Collateralized Note
Indenture and the Old Junior Subordinated Debenture Indenture shall
be discharged. The Old Subordinated Note Indenture shall terminate
on the Effective Date and Huntway shall pay on the Effective Date
to the trustee thereunder any and all amounts due to the trustee.
C. WAIVER OF SUBORDINATION.
The distributions under the Prepackaged Plan take into account
the relative priority of the Claims in each Class in connection
with any contractual subordination provisions or other
intercreditor agreements relating thereto. Accordingly, all
distributions under the Prepackaged Plan (including, without
limitation, the distributions to the Holders of Class 5 Claims)
shall not be subject to levy, garnishment, attachment or other
legal process by reason of claimed contractual subordination rights
(including, without limitation, rights arising under the Old
Subordinated Note Indenture, the Old Junior Subordinated Debenture
Indenture and the Existing Intercreditor Agreement). On the
Effective Date, all Creditors shall be deemed to have waived any
and all contractual subordination rights which they may have had
under the terms of the Old Subordinated Note Indenture and the Old
Junior Subordinated Debenture Indenture with respect to such
distribution, and the Confirmation Order shall permanently enjoin,
effective as of the Effective Date, all Holders of Senior
Indebtedness (as defined in each of the Old Collateralized Note
Indenture and the Old Subordinated Note Indenture) from enforcing
or attempting to enforce any such rights which existed prior to the
entry of the Confirmation Order under the terms of the Old
Subordinated Note Indenture, the Old Junior Subordinated Debenture
Indenture and the Existing Intercreditor Agreement against any
party with respect to distributions under the Prepackaged Plan.
Notwithstanding anything else herein, the subordination provisions
of the New Junior Subordinated Debenture Indenture shall be fully
enforceable and nothing in the Prepackaged Plan or herein shall
effect the enforceability thereof.
D. EXECUTION OF OTHER NEW DOCUMENTS.
On the Effective Date (i) Reorganized Huntway shall enter
into the New Collateral Documents to which it is a party with
United States Trust Company of New York, as Collateral Agent,
(ii) Sunbelt, the General Partner and the Special Managing Partner
shall enter into the New Guaranties and the New Collateral
Documents to which they are a party with United States Trust
Company of New York, as Collateral Agent, (iii) Reorganized
Huntway, Sunbelt, Bankers Trust, as LOC Bank, the parties receiving
New Senior Notes, and United States Trust Company of New York, as
Collateral Agent shall enter into the New Intercreditor Agreement,
(iv) Bankers Trust, as LOC Bank, Reorganized Huntway and Sunbelt
shall enter into the Post-Restructuring Letter of Credit Agreement
and (v) the Holders of the Allowed Class 2 Claims, Allowed Class 5
Claims and Allowed Class 6 Equity Interests and Reorganized Huntway
shall execute the Unitholders Agreement.
E. EXECUTION OF UNITHOLDERS AGREEMENT.
No distribution of property shall be made to or on behalf of
any Holder of an Allowed Class 2 Claim, an Allowed Class 5 Claim or
an Allowed Class 6 Equity Interest unless such Holder executes the
documents required under this Section V. to be executed by such
Holder. No Holder of an Allowed Class 10 Equity Interest shall be
entitled to retain such Equity Interest unless such Holder executes
the documents required under this Section V. to be executed by such
Holder. Any Holder that fails to execute the documents required to
be executed by such Holder under this Section V. within 30 days
after the Effective Date shall be deemed to have forfeited all
rights, Claims, Equity Interests and other interests in Huntway
and Reorganized Huntway and shall not participate in any
distributions hereunder and all property in respect of such
forfeited distribution, including interest accrued thereon, shall
revert to Reorganized Huntway.
F. SURRENDER OF OLD NOTES AND WARRANTS.
Holders of Allowed Senior Lender Claims shall surrender their
Old Collateralized Notes and Old Subordinated Notes to Reorganized
Huntway and Reorganized Huntway shall distribute or shall cause to
be distributed to the Holders thereof the appropriate distribution
of property hereunder. Holders of Allowed Junior Lender Claims
shall surrender their Old Junior Subordinated Notes to Reorganized
Huntway and Reorganized Huntway shall distribute or shall cause to
be distributed to the Holders thereof the appropriate distribution
of property hereunder. Holders of Allowed Class 6 Equity Interests
shall surrender their Warrants to Reorganized Huntway and
Reorganized Huntway shall distribute or shall cause to be
distributed to the Holders thereof the appropriate distribution of
property hereunder. No distribution of property hereunder shall be
made to or on behalf of any such Holders unless and until such Old
Notes or Warrants are received by Huntway or the unavailability of
such Old Note or Warrant is reasonably established to the
satisfaction of Reorganized Huntway. Any Holder that fails (i) to
surrender or cause to be surrendered such Old Note or Warrant
within five (5) years after the Effective Date or (ii) to execute
and deliver an affidavit of loss and indemnity reasonably
satisfactory to Huntway and, in the event that Huntway requests,
fails to furnish a bond in form and substance (including, without
limitation, with respect to amount) reasonably satisfactory to
Huntway within five (5) years after the Effective Date, shall be
deemed to have forfeited all rights, Claims, Equity Interests and
any other interests and shall not participate in any distributions
hereunder and all property in respect of such forfeited
distribution, including interest accrued thereon, shall revert to
Reorganized Huntway.
G. AGREEMENT OF LIMITED PARTNERSHIP.
The Agreement of Limited Partnership of Reorganized Huntway
shall be amended by the Second Amended and Restated Agreement of
Limited Partnership as of the Effective Date. The Amendment to the
Amended and Restated Agreement of Limited Partnership shall be
filed with the Secretary of State of Delaware. Huntway's Amended
and Restated Agreement of Limited Partnership as proposed to be
amended pursuant to the Prepackaged Plan is set forth in its
entirety in Appendix C to the Disclosure Statement.
H. MANAGEMENT OF THE DEBTOR.
On the Effective Date, the operation of Reorganized Huntway
shall continue to be the general responsibility of the General
Partner, the Board and the Operating Committee, which shall,
thereafter, have the responsibility for the management, control and
operation of Reorganized Huntway as set forth in the Second Amended
and Restated Agreement of Limited Partnership. The members of the
Operating Committee upon the Effective Date shall be: Juan
V. Forster, Justin S. Huscher, Samuel M. Mencoff and Raymond
M. O'Keefe. The officers of Reorganized Huntway upon the Effective
Date shall consist of the individuals who are officers of Huntway
as of the Petition Date. All such officers shall be deemed elected
pursuant to the Confirmation Order.
I. RELEASE OF CONSENTING SENIOR LENDERS.
(i) Huntway, Reorganized Huntway (in each case whether as
debtor, debtor-in-possession or on behalf of its
creditors) and all persons and entities asserting claims
or who may assert claims derivatively or otherwise
through or on behalf of them, and their respective
predecessors, successors and assigns, and the respective
parents, subsidiaries, affiliates and partners of the
foregoing entities (collectively, the "Huntway
Releasors") hereby fully, absolutely and forever release
and discharge each of the Senior Lenders (other than any
Senior Lender who has elected not to provide the release
set forth in subparagraph I (ii) below) and the parents,
subsidiaries, partners, directors, officers, attorneys,
financial advisors, agents and employees past and
present, of such Senior Lenders and the foregoing
entities from any and all manner of liabilities,
accounts, reckonings, obligations, liens, suits,
proceedings, controversies, debts, dues, counterclaims,
cross claims, setoffs, demands and causes of action of
whatever kind or nature, in law, equity or otherwise
(including, without limitation, any causes of action
under sections 502, 510, 544, 545, 547, 548, 549 or 550
of the Bankruptcy Code), whether now known or unknown and
whether suspected or unsuspected, anticipated and
unanticipated, and whether or not concealed or hidden,
which now exist or heretofore have existed, which any
Huntway Releasor or Huntway Releasors may now hold or has
at any time heretofore owned or held, which are based
upon or arise out of or in connection with any matter,
cause or thing related to the Old Collateralized Notes,
the Old Collateralized Note Indenture, the Old
Subordinated Note Indenture, the Old Subordinated Notes,
the Agreement of Understanding, the Old Letter of Credit
Agreement, any transaction or agreement arising from or
related thereto or entered into in connection therewith
or otherwise relating to Huntway, whether existing at any
time prior to the Effective Date or whether such matter,
cause or thing was done, omitted or suffered to be done
or omitted at any time prior to the Effective Date.
(ii) Each Senior Lender (other than any Senior Lender who
elects not to provide a release in accordance with the
Voting Instructions and the Solicitation Materials), on
behalf of itself and all persons and entities asserting
claims or who may assert claims derivatively or otherwise
through or on behalf of it and its respective
predecessors, successors and assigns, and the respective
parents, subsidiaries, affiliates and partners of the
foregoing entities (collectively, the "Senior Lender
Releasors") hereby fully, absolutely and forever release
and discharge (except as set forth in subparagraph I
(iii) below) each of the Huntway Releasors and the
parents, subsidiaries, partners, directors, officers,
attorneys, financial advisors, agents and employees, past
and present, of the Huntway Releasors from any and all
manner of claims, demands, actions, costs, expenses,
damages, liabilities, accounts, reckonings, obligations,
liens, suits, proceedings, controversies, debts, dues,
counterclaims, cross claims, setoffs, demands and causes
of action of whatever kind or nature, in law, equity or
otherwise, whether now known or unknown and whether
suspected or unsuspected, anticipated and unanticipated,
and whether or not concealed or hidden, which now exist
or heretofore have existed, which such Senior Lender
Releasor or Senior Lender Releasors may now hold or has
at any time heretofore owned or held, which are based
upon or arise out of or in connection with any matter,
cause or thing related to the Old Collateralized Notes,
the Old Collateralized Note Indenture, the Old
Subordinated Notes, the Old Subordinated Note Indenture,
the Agreement of Understanding, the Old Letter of Credit
Agreement or any transaction or agreement arising from or
related thereto or entered into in connection therewith,
whether existing at any time prior to the Effective Date
or whether such matter, cause or thing was done, omitted
or suffered to be done or omitted at any time prior to
the Effective Date.
(iii) Nothing in this Section V shall release any claim, right
or cause of action held by the Senior Lenders based upon
or arising out of the Prepackaged Plan or based upon or
arising out of or in connection with the documents or
instruments to be issued to or on behalf of the Senior
Lenders pursuant to the Prepackaged Plan (including, but
not limited to, the New Collateralized Note Indenture,
the New Senior Notes, the New Intercreditor Agreement,
the New Collateral Documents, the New Guaranties, the
Common Units, the Unitholders Agreement, the
Post-Restructuring Letter of Credit Agreement) or the
documents securing the Senior Lender Claims and the
Claims of Bankers Trust.
J. METHOD OF DISTRIBUTION UNDER THE PREPACKAGED PLAN.
1. IN GENERAL. All Cash distributions shall be made by the
Debtor or Reorganized Huntway from available Cash. Except as
otherwise set forth herein, the Debtor or Reorganized Huntway shall
make all distributions of Cash and property pursuant to the
Prepackaged Plan on the later of the Effective Date or on the date
a Claim becomes Allowed or as soon thereafter as is practicable.
2. MANNER OF PAYMENT UNDER THE PREPACKAGED PLAN. Any payment
of Cash made by the Debtor or Reorganized Huntway pursuant to the
Prepackaged Plan may be made either by check drawn on a domestic
bank, by wire transfer, or by automated clearing house transfer
from a domestic bank, at the option of the Debtor or Reorganized
Huntway, as the case may be.
3. DISTRIBUTION OF NEW SENIOR NOTES AND NEW JUNIOR NOTES.
Distributions of New Senior Notes and New Junior Notes to be made
in respect of the Claims in Classes 2 and 5 shall be made directly
to the respective indenture trustee under the New Collateralized
Note Indenture and the New Junior Subordinated Debenture Indenture,
respectively. Such indenture trustees shall distribute the
property to be received to the record holders of the Old
Collateralized Notes and Old Junior Subordinated Notes, as the case
may be, as soon after receipt as is practicable and permissible.
4. DISTRIBUTION OF OPTION TO ANDRE DANESH. Distribution of
the option to purchase 600,000 Common Units to Andre Danesh as a
finder's fee shall be made as soon as practicable on or after the
Effective Date.
5. MANNER OF DISTRIBUTION OF OTHER PROPERTY. Any distribution
under the Prepackaged Plan of property other than Cash shall be
made by Reorganized Huntway or its designee in accordance with the
terms of the Prepackaged Plan.
6. SETOFFS. The Debtor may, but it shall not be required to,
set off against any Claim (i) the payments and/or distribution of
other property to be made pursuant to the Prepackaged Plan in
respect of such Claim and (ii) any claims of any nature whatsoever
the Debtor may have against the Holder of a Claim, but neither the
failure to do so nor the allowance of any Claim hereunder shall
constitute a waiver or release by the Debtor of any such claim the
Debtor may have against such Holder.
7. DISTRIBUTION OF UNCLAIMED PROPERTY. Except as otherwise
provided in the Prepackaged Plan, any distribution of property
(Cash or otherwise) under the Prepackaged Plan which is unclaimed
after five (5) years following the Effective Date shall be
forfeited and transferred to Reorganized Huntway together with all
interest earned thereon and shall be the property of Reorganized
Huntway.
8. SATURDAY, SUNDAY OR LEGAL HOLIDAY. If any payment or act
under the Prepackaged Plan is required to be made or performed on
a date that is not a Business Day, then the making of such payment
or the performance of such act may be completed on the next
succeeding Business Day, but shall be deemed to have been completed
as of the required date.
K. REVESTING OF ASSETS.
The property of the Estate of the Debtor shall revest in
Reorganized Huntway on the Effective Date. Reorganized Huntway may
operate its business, and may use, acquire, transfer and dispose of
all of its property, including without limitation all property
formerly part of the Estate, free of any restrictions of the
Bankruptcy Code. As of the Effective Date, all property of the
Debtor shall be free and clear of all Claims and interests of the
Holders of Claims and Holders of Equity Interests, except for the
liens of the Senior Lenders and Bankers Trust pursuant to the New
Collateralized Indenture, the Collateral Documents (as defined in
the New Intercreditor Agreement), the Post-Restructuring Letter of
Credit Agreement and except as otherwise specifically provided in
the Prepackaged Plan.
L. PARTNERSHIP ACTION.
Upon entry of the Confirmation Order by the Clerk of the
Bankruptcy Court, the execution by the Debtor or Reorganized
Huntway of the Second Amended and Restated Agreement of Limited
Partnership shall be authorized and approved in all respects. On
the Effective Date, the New Senior Notes, the New Junior Notes and
the additional Common Units and the Unit Options shall be issued,
the appointment and deemed election of Operating Committee members
and officers, and the other matters provided under the Prepackaged
Plan involving the partnership structure of the Debtor or
Reorganized Huntway, or partnership action by the Debtor or
Reorganized Huntway, shall be deemed to have occurred and the New
Unit Option Plan shall be deemed approved (including approval of
the issuance of (1) 1,022,000 Unit Options issued to Holders of
Class 8 Equity Interests, (2) 1,793,850 additional Unit Options to
be issued on the Effective Date to members of Huntway's management,
and (3) such additional Unit Options to be issued from time to time
as are necessary to prevent dilution to the Holders of Unit Options
caused by the issuance from time to time of Common Units as accrued
interest on the New Junior Notes and the issuance of Common Units
to Holders of Class 2 Claims and Class 6 Equity Interests as
anti-dilution protection granted to such Holders) and shall be in
effect from and after the Effective Date pursuant to Section 405 of
the Delaware Revised Uniform Limited Partnership Act, as amended
through the date hereof, without any requirement of further action
by the partners of the Debtor or Reorganized Huntway.
M. FRACTIONAL NOTES.
The New Senior Notes and New Junior Notes will be available
only in registered form, without coupons. The New Senior Notes and
New Junior Notes will be issued in denominations of $100 and
integral multiples thereof. Each Holder otherwise entitled to an
amount of New Senior Notes and New Junior Notes that is not an
integral multiple of $100 will receive Cash in lieu of such
fractional additional amount, promptly after the Effective Date,
but in no event later than sixty (60) Business Days following the
later of the Effective Date and receipt by Huntway of the
surrendered Old Collateralized Note or Old Junior Subordinated
Note, as the case may be, subject to the provisions of Section V.
N. FRACTIONAL UNITS.
No fractional shares of Common Units will be issued upon
exchange of Old Collateralized Notes or Old Junior Subordinated
Notes. Common Units will be issued to Holders of Old
Collateralized Notes and Old Junior Subordinated Notes in whole
Unit amounts (rounded to the nearest whole Unit when and as
necessary). No separate payment will be made with respect to any
fractional Common Unit.
O. DE MINIMIS DISTRIBUTIONS.
No Cash payment of less than five dollars ($5.00) shall be
made by the Debtor in respect of any Allowed Claim unless a request
therefor is made in writing to the Debtor.
VI.
EXECUTORY CONTRACTS, UNEXPIRED LEASES AND OTHER MATTERS
A. EXECUTORY CONTRACTS AND UNEXPIRED LEASES. All executory
contracts and unexpired leases that exist between the Debtor and
any person are hereby specifically assumed under the Prepackaged
Plan, effective as of the Effective Date, except for any executory
contracts and unexpired leases which (i) are specifically rejected
by the Debtor with the approval of the Bankruptcy Court, at or as
of the Effective Date, (ii) are the subject of a motion to reject
pending on the Effective Date or (iii) are identified on a list to
be filed with the Bankruptcy Court on or before the Confirmation
Date, as to be rejected. Entry of the Confirmation Order by the
Clerk of the Bankruptcy Court shall constitute approval of such
assumptions pursuant to subsection 365(a) of the Bankruptcy Code.
Claims created by the rejection of executory contracts or unexpired
leases and claims asserted to exist pursuant to
Section 365(b)(1)(A) or Section 365(b)(1)(B) of the Bankruptcy Code
with respect to assumed executory contracts must be filed with the
Bankruptcy Court no later than twenty (20) days after (i) in the
case of assumption, the Effective Date and (ii) in the case of
rejection, the later of a Final Order authorizing such rejection or
the Effective Date. Any Claims not filed within such time will be
forever barred from assertion against the Debtor, its Estate,
Reorganized Huntway and its property. Unless otherwise ordered by
the Bankruptcy Court, all Claims arising from the rejection of
executory contracts and unexpired leases shall be resolved in the
Bankruptcy Court and shall be paid in full, in Cash, on the later
of (i) the Effective Date or as soon thereafter as is practicable,
and (ii) 30 days after such Claim is Allowed in the amount ordered
by the Bankruptcy Court. No adequate assurance of future
performance of any executory contract or unexpired leases shall be
required pursuant to Section 365(b)(1)(C) of the Bankruptcy Code,
other than Reorganized Huntway's promise to perform under the
executory contracts, unless otherwise ordered by the Bankruptcy
Court.
B. INDEMNIFICATION OBLIGATIONS. For purposes of the
Prepackaged Plan, the obligations of the Debtor as of the Petition
Date to indemnify its present, and any individuals or entities who
formerly were, partners, members of the Operating Committee or
officers, respectively, against any obligations pursuant to the
Amended and Restated Agreement of Limited Partnership of the
Debtor, applicable state law or specific agreement, or any
combination of the foregoing shall survive confirmation of the
Prepackaged Plan, remain unaffected thereby, be assumed and not be
discharged, irrespective of whether indemnification is owed in
connection with an event occurring before, on, or after the
Petition Date.
The Debtor shall fully indemnify any person or entity by
reason of the fact that he, she or it is or was a partner, member
of the Operating Committee, officer, employee or agent of the
Debtor, or is or was serving at the request of the Debtor as
a member of the Operating Committee or director, officer, employee
or agent of another corporation, partnership, joint venture or
other enterprise, against any liabilities, actions, suits, damages,
fines, judgments or expenses (including reasonable attorneys'
fees), arising during the course of, or otherwise in connection
with or any way related to, the preparation and consummation of the
Prepackaged Plan and the transactions contemplated thereby.
C. COMPENSATION AND BENEFIT PROGRAMS. All employment and
severance policies, and all compensation and benefit plans,
contracts, agreements, policies, undertakings and programs of the
Debtor including, without limitation, all savings plans, retirement
plans, key employee retention plans, health care plans, disability
plans, severance benefit plans, incentive plans, and life,
accidental death and disbursement insurance plans are treated as
executory contracts under the Prepackaged Plan and are hereby
assumed as of the Effective Date pursuant to subsection 365(a) of
the Bankruptcy Code and Section VI.A. of the Prepackaged Plan.
Notwithstanding the foregoing, the Existing Option Plan shall not
be treated pursuant to this subsection, but rather pursuant to
Section II.D. Class 8. On and after the Effective Date, pursuant
to Section 1129(a)(13) of the Bankruptcy Code, the Debtor will
continue to pay all retiree benefits, as that term is defined in
Section 1114 of the Bankruptcy Code, at the level established
pursuant to subsection (e)(1) or (g) of Section 1114 at any time
prior to confirmation of the Prepackaged Plan, for the duration of
the period the Debtor has obligated itself to provide such
benefits.
VII.
CONDITIONS PRECEDENT
A. CONDITIONS PRECEDENT TO CONFIRMATION.
1. It is a condition to confirmation of the Prepackaged Plan
that the Confirmation Order shall approve of all respects of the
provisions, terms and conditions of the Prepackaged Plan; and
2. It is a condition to confirmation of the Prepackaged Plan
that the Confirmation Order is satisfactory to Huntway in form and
substance.
B. CONDITIONS PRECEDENT TO CONSUMMATION.
1. It is a condition to Consummation that the Confirmation
Order shall have become a Final Order.
2. It is a condition to Consummation that the
Post-Restructuring Letter of Credit Agreement shall have been
executed by the parties thereto.
3. It is a condition to Consummation that the New Guaranties
and the New Collateral Documents have been executed by the parties
thereto.
C. WAIVER OF CONDITIONS. The Debtor, with the consent of the
Holders of a majority of the Senior Lender Claims, may waive any of
the conditions to Consummation of the Prepackaged Plan set forth in
Section VII.B. (other than VII.B.1) of the Prepackaged Plan at any
time, without notice, without leave or order of the Bankruptcy
Court, and without any formal action other than proceeding to
confirm and/or consummate the Prepackaged Plan.
VIII.
RETENTION OF JURISDICTION
Notwithstanding entry of the Confirmation Order or the
Effective Date having occurred, or a Final Decree having been
entered closing the Prepackaged Chapter 11 Case, the Bankruptcy
Court shall, except to the extent it orders otherwise, have
exclusive jurisdiction of all matters arising out of, and related
to the Prepackaged Chapter 11 Case and the Prepackaged Plan
pursuant to, and for the purposes of, Sections 105(a) and 1142 of
the Bankruptcy Code and for, among other things, the following
purposes:
A. To hear and determine pending applications for the
assumption or rejection of executory contracts or unexpired leases,
if any are pending, and the allowance of Claims resulting
therefrom;
B. To determine any and all pending adversary proceedings,
applications, and contested matters, including without limitation,
proceedings relating to general and limited partners, directors,
officers, and employees;
C. To ensure that distributions to Holders of Allowed
Administrative Expenses, Allowed Claims, and Allowed Equity
Interests are accomplished as provided herein;
D. To hear and determine any objections to Administrative
Expenses, to proofs of claims or to Claims and Equity Interests
filed, and/or asserted both before and after the Confirmation Date,
including any objections to the classification of any Claim or
Equity Interest, and to allow or disallow any Disputed Claim, in
whole or in part;
E. To enter and implement such orders as may be appropriate
in the event the Confirmation Order is for any reason stayed,
revoked, modified, or vacated;
F. To issue such orders in aid of execution of the
Prepackaged Plan as may be necessary and appropriate to the extent
authorized by Section 105 and 1142 of the Bankruptcy Code;
G. To consider any modifications of the Prepackaged Plan, to
cure any defect or omission, or reconcile any inconsistency in any
order of the Bankruptcy Court, including, without limitation, the
Confirmation Order;
H. To hear and determine all applications for compensation
and reimbursement of expenses of professionals under Sections 330,
331, and 503(b) of the Bankruptcy Code for services rendered and
expenses incurred prior to the Confirmation Date;
I. To hear and determine disputes arising in connection with
the interpretation, implementation, or enforcement of the
Prepackaged Plan;
J. To recover all assets of the Debtor and property of the
Estate, wherever located;
K. To hear and determine matters concerning state, local, and
federal taxes in accordance with Sections 345, 505, and 1146 of the
Bankruptcy Code;
L. To hear any other matter not inconsistent with the
Bankruptcy Code, the Prepackaged Plan and the Confirmation
Order; and
M. To enter a Final Decree closing the Prepackaged
Chapter 11 Case.
IX.
MISCELLANEOUS PROVISIONS
A. POST-CONSUMMATION EFFECTIVENESS OF EVIDENCES OF CLAIMS.
Old Collateralized Notes, Old Subordinated Notes and Old Junior
Subordinated Notes shall, effective upon the Effective Date,
represent only the right to participate in the distributions
contemplated by the Prepackaged Plan.
B. TERM OF INJUNCTIONS OR STAYS. Without in any way limiting
the effect of Section 524 or 1141, of the Bankruptcy Code, unless
otherwise provided, all injunctions or stays provided for in the
Prepackaged Chapter 11 Case pursuant to Section 105 or 362 of the
Bankruptcy Code or otherwise in effect on the Confirmation Date
shall remain in full force and effect until the Effective Date;
and, unless otherwise provided, shall expire on the Effective Date.
C. MODIFICATION OF PREPACKAGED PLAN. The Debtor reserves the
right, in accordance with the Bankruptcy Code and with the prior
consent of the Senior Lenders as prescribed by, and to the extent
required by, the Agreement of Understanding, to amend or modify the
Prepackaged Plan prior to the entry of the Confirmation Order.
After the entry of the Confirmation Order, the Debtor or
Reorganized Huntway, as the case may be, may, upon order of the
Bankruptcy Court, amend or modify the Prepackaged Plan, in
accordance with Section 1127(b) of the Bankruptcy Code and with the
prior consent of the Requisite Holders (as such term is defined in
the New Collateralized Note Indenture), or remedy and defect or
omission or reconcile any inconsistency in the Prepackaged Plan in
such manner as may be necessary to carry out the purpose and intent
of the Prepackaged Plan.
D. WITHDRAWAL OF PREPACKAGED PLAN. Subject to any consent
required under the Agreement of Understanding, the Debtor reserves
the right, at any time prior to the entry of the Confirmation
Order, to revoke and withdraw the Prepackaged Plan. If the Debtor
so revokes or withdraws the Prepackaged Plan, or if entry of the
Confirmation Order does not occur, then, at the option of the
Debtor, the Prepackaged Plan shall be deemed null and void. In
that event, nothing contained in the Prepackaged Plan shall be
deemed to constitute a waiver or release of any Claims by or
against the Debtor or any other person, or to prejudice in any
manner the rights of the Debtor or any other person in any further
proceedings involving the Debtor.
E. AMENDMENT AND RESTATEMENT OF SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP. Subject to the provisions of the
Second Amended and Restated Agreement of Limited Partnership of
Huntway and the provisions of the Revised Uniform Limited
Partnership Act, the power to amend, alter or repeal such Second
Amended and Restated Agreement of Limited Partnership and to adopt
a new Agreement of Limited Partnership may be exercised by the
General Partner, the Special Managing Partner and/or the
Unitholders of Reorganized Huntway.
F. PAYMENT OF STATUTORY FEES. All fees payable pursuant to
Section 1930 of Title 28 of the United States Code, as determined
by the Bankruptcy Court at the hearing pursuant to Section 1128 of
the Bankruptcy Code, shall be paid on or before the Effective Date.
G. DISCHARGE OF DEBTOR. The rights afforded in the
Prepackaged Plan and the treatment of all Claims and Equity
Interests therein shall be in exchange for and in complete
satisfaction, discharge and release of Claims and Equity Interests
of any nature whatsoever, including any accrued interest thereon
and fees, charges, or other costs relating thereto, against the
Estate, the Debtor, Reorganized Huntway or any of their assets or
properties. Except as otherwise provided herein (i) the
Prepackaged Plan shall bind all Holders of Claims and Equity
Interests; (ii) on the Effective Date, all such Claims against, and
Equity Interests in, the Debtor shall be satisfied, discharged, and
released in full, and the Debtor's liability in respect thereof
shall be extinguished completely, including without limitation, any
liability of a kind specified under Section 502(g) of the
Bankruptcy Code; and (iii) all persons shall be precluded from
asserting against Reorganized Huntway, its successors, or its
assets or properties any other or further Claims or Equity
Interests based upon any documents, instruments or any act or
omission, transaction, or other activity of any kind or nature that
occurred prior to the Confirmation Date. Notwithstanding the
foregoing, (i) Holders of Class 3 Claims and Class 4 Claims will be
treated as if the Prepackaged Chapter 11 Case had not been filed
(except as otherwise provided herein), and the determination of
whether any Class 3 Claim or Class 4 Claim will be paid and/or the
amount of any Class 3 Claim or Class 4 Claim (which, subject to
Bankruptcy Court approval, shall not be listed on the Schedules,
and as to which no proof of Claim need be filed) will be
determined, resolved or adjudicated as if the Prepackaged Chapter
11 Case had not been commenced and (ii) confirmation of the
Prepackaged Plan will not operate to discharge the Claims or liens
of the Senior Lenders and Bankers Trust, which Claims and liens
shall continue in full force, as provided under and modified by the
New Collateralized Note Indenture, the Post-Restructuring Letter of
Credit Agreement and the Collateral Documents (as such term is
defined in the New Intercreditor Agreement), and the liens securing
the Senior Lender Claims and the claims under the
Post-Restructuring Letter of Credit Agreement shall continue in the
property of Reorganized Huntway in full force and with the
same priority.
H. EXCULPATION. Neither Reorganized Huntway, its partners,
the parties to the Agreement of Understanding, nor any of their
respective officers, directors, employees, attorneys or agents
shall have or incur any liability to any Holder of a Claim or
Equity Interest for any liability of Huntway or Reorganized
Huntway, except as set forth in the New Collateralized Indenture,
the Post-Restructuring Letter of Credit Agreement, the New
Collateral Documents, the New Guaranties, the New Senior Notes, the
New Junior Notes and the New Junior Subordinated Debenture
Indenture; or for any act or omission in connection with, or
arising out of, the pursuit of confirmation of the Prepackaged
Plan, the consummation of the Prepackaged Plan, the administration
of the Prepackaged Plan or the property to be distributed under the
Prepackaged Plan, and in all respects, shall be entitled to rely
upon the advice of counsel with respect to their duties and
responsibilities under the Prepackaged Plan.
I. RIGHTS OF ACTION. Any rights or causes of action under
any theory of law, including, without limitation, under the
Bankruptcy Code accruing to the Debtor law. remain assets of the
Estate of Reorganized Huntway. Reorganized Huntway may, in it sole
discretion, pursue or may refrain from pursuing those rights or
causes of action, as appropriate, in accordance with what is in the
best interests, and for the benefit, of Reorganized Huntway.
Nothing in this Section IX.I, however, shall preserve any rights or
causes of action that are released under Section V.I(i).
J. COMMITTEES. The appointment of all statutory committees
shall terminate on the Effective Date.
K. FAILURE OF BANKRUPTCY COURT TO EXERCISE JURISDICTION. If
the Bankruptcy Court abstains from exercising or declines to
exercise jurisdiction, or is otherwise without jurisdiction over
any matter arising out of the Prepackaged Chapter 11 Case,
including any of the matters set forth in the Prepackaged Plan, the
Prepackaged Plan shall not prohibit or limit the exercise of
jurisdiction by any other court of competent jurisdiction with
respect to such matter.
L. GOVERNING LAW. Unless a rule of law or procedure is
supplied by federal law (including the Bankruptcy Code and
Bankruptcy Rules) or an agreement, document or instrument provides
otherwise, the internal laws of the State of New York shall govern
the construction and implementation of the Prepackaged Plan and any
agreement, documents and instruments executed in connection with
the Prepackaged Plan, without regard to the conflict of laws
provisions in the State of New York; provided, however, that all
matters of partnership or corporate governance shall be governed by
the laws of the State of Delaware.
M. HEADINGS. The headings used in the Prepackaged Plan are
inserted for convenience only and neither constitute a portion of
the Prepackaged Plan nor in any manner shall affect the provisions
of the Prepackaged Plan.
N. TAX WITHHOLDING. Huntway and Reorganized Huntway shall
withhold any and all taxes required to be withheld by such entities
under applicable law.
O. SUCCESSORS AND ASSIGNS. The rights, benefits and
obligations of any person or entity named or referred to in the
Prepackaged Plan will be binding upon, and will inure to the
benefit of, the heir, executor, administrator, successor or assign
of such person or entity.
Dated: November 12, 1996
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: /s/ Warren J. Nelson
Name: Warren J. Nelson
Title: Executive Vice President,
Chief Financial Officer
By: Huntway Holdings, L.P.,
its Special 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,
Chief Financial Officer
<PAGE>
EXHIBIT 2
UNITHOLDERS AGREEMENT
BY AND AMONG
HUNTWAY PARTNERS, L.P.,
AND
BANKERS TRUST COMPANY,
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY,
MELLON BANK, N.A., as trustee for First Plaza Group Trust,
OPPENHEIMER & COMPANY, INC., for itself and as
agent for certain affiliates, LINDNER GROWTH FUND,
FIRST CHICAGO EQUITY CORPORATION and
MADISON DEARBORN PARTNERS III
as Unitholders
Dated as of December 12, 1996
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1
AGREEMENTS REGARDING ISSUANCE
AND TRANSFER OF UNITS AND PROTECTIVE RIGHTS . . . . 2
1.1 Initial Issuance of Protective Rights. . . . . . . . 2
1.2 Subsequent Issuances of Protective Rights and
Units. . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Restrictions on Transfer of Units and Protective
Rights . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE 2
CONDITIONS TO EFFECTIVENESS . . . . . . . . 3
2.1 Plan Effectiveness . . . . . . . . . . . . . . . . . 3
2.2 Execution and Delivery . . . . . . . . . . . . . . . 3
2.3 Registration Rights Agreement. . . . . . . . . . . . 3
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY. . . . 3
3.1 Organization and Standing of the Company . . . . . . 3
3.2 Partnership Action . . . . . . . . . . . . . . . . . 4
3.3 Governmental Approvals . . . . . . . . . . . . . . . 4
3.4 Compliance with Other Instruments. . . . . . . . . . 4
3.5 Securities Act of 1933 . . . . . . . . . . . . . . . 4
3.6 No Brokers or Finders. . . . . . . . . . . . . . . . 4
3.7 Capitalization; Status of Units. . . . . . . . . . . 4
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF UNITHOLDERS. . . . 5
4.1 Representations by each Unitholder . . . . . . . . . 5
ARTICLE 5
REPORTING REQUIREMENTS. . . . . . . . . . 5
ARTICLE 6
DEFINITIONS AND ACCOUNTING TERMS . . . . . . . 5
6.1 Certain Defined Terms. . . . . . . . . . . . . . . . 5
Agreement. . . . . . . . . . . . . . . . . . . . . . 5
Class 2 Claim. . . . . . . . . . . . . . . . . . . . 5
Class 2 Unitholder . . . . . . . . . . . . . . . . . 5
Class 5 Claim. . . . . . . . . . . . . . . . . . . . 6
Class 5 Unitholder . . . . . . . . . . . . . . . . . 6
Class 6 Equity Interest. . . . . . . . . . . . . . . 6
Class 6 Unitholder . . . . . . . . . . . . . . . . . 6
Class 8 Equity Interest. . . . . . . . . . . . . . . 6
Class 8 Option Holder. . . . . . . . . . . . . . . . 6
Closing. . . . . . . . . . . . . . . . . . . . . . . 6
Collateralized Note Indenture. . . . . . . . . . . . 6
Collateralized Note Obligations. . . . . . . . . . . 6
Company. . . . . . . . . . . . . . . . . . . . . . . 6
Effective Date . . . . . . . . . . . . . . . . . . . 6
Exchange Act . . . . . . . . . . . . . . . . . . . . 6
Exemption Filings. . . . . . . . . . . . . . . . . . 6
Interest Units . . . . . . . . . . . . . . . . . . . 6
Junior Note Indenture. . . . . . . . . . . . . . . . 6
Junior Note Interest Payment Date. . . . . . . . . . 7
Junior Notes . . . . . . . . . . . . . . . . . . . . 7
Options. . . . . . . . . . . . . . . . . . . . . . . 7
Person . . . . . . . . . . . . . . . . . . . . . . . 7
Plan . . . . . . . . . . . . . . . . . . . . . . . . 7
Protected Options. . . . . . . . . . . . . . . . . . 7
Protective Rights. . . . . . . . . . . . . . . . . . 7
Securities Act . . . . . . . . . . . . . . . . . . . 7
Senior Notes . . . . . . . . . . . . . . . . . . . . 7
Senior Notes (Other) . . . . . . . . . . . . . . . . 7
Senior Notes (Sunbelt IDB) . . . . . . . . . . . . . 7
Units. . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 7
MISCELLANEOUS. . . . . . . . . . . . 8
7.1 No Waiver; Cumulative Remedies . . . . . . . . . . . 8
7.2 Amendments, Waivers and Consents . . . . . . . . . . 8
7.3 Addresses for Notices, etc.. . . . . . . . . . . . . 8
7.4 Costs, Expenses and Taxes. . . . . . . . . . . . . . 8
7.5 Binding Effect; Assignment . . . . . . . . . . . . . 9
7.6 Survival of Representations and Warranties . . . . . 9
7.7 Prior Agreements . . . . . . . . . . . . . . . . . . 9
7.8 Severability . . . . . . . . . . . . . . . . . . . . 9
7.9 Governing Law. . . . . . . . . . . . . . . . . . . . 9
7.10 Headings . . . . . . . . . . . . . . . . . . . . . . 9
7.11 Counterparts . . . . . . . . . . . . . . . . . . . . 10
7.12 Further Assurances . . . . . . . . . . . . . . . . . 10
<PAGE>
UNITHOLDERS AGREEMENT
This UNITHOLDERS AGREEMENT (the "Agreement") is made
and entered into as of December 12, 1996, by and among HUNTWAY
PARTNERS, L.P., a Delaware limited partnership, (the "Company"),
and BANKERS TRUST COMPANY, MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY, MELLON BANK, N.A., as trustee for First Plaza Group
Trust, OPPENHEIMER & COMPANY, INC., for itself and as agent for
certain affiliates, LINDNER GROWTH FUND, FIRST CHICAGO EQUITY
CORPORATION and MADISON DEARBORN PARTNERS III (each, a
"Unitholder" and collectively, the "Unitholders").
R E C I T A L S
WHEREAS, the Company is a debtor and debtor in possession
under chapter 11 of Title 11 of the United States Code, having
commenced a bankruptcy case on November 12, 1996;
WHEREAS, on November 12, 1996, the Company submitted to
the United States Bankruptcy Court for the District of Delaware
(the "Court") a Plan of Reorganization dated November 12, 1996 (the
"Plan"), and on December 12, 1996, the Court confirmed the Plan;
WHEREAS, the Plan provides, among other things, that
(i) the Company will issue Senior Notes in an original aggregate
principal amount of $23,500,000.00 and 6,335,663 Units,
representing approximately 25% of the total Units of the Company
outstanding upon consummation of the Plan to the holders of Class
2 Claims, (ii) the Company will issue Junior Notes in the original
aggregate principal amount of $2,070,000.00 and 1,115,077 Units,
representing approximately 4.4% of the total Units of the Company
outstanding upon consummation of the Plan to the holders of Class
5 Claims, (iii) the Company will issue 6,335,663 Units,
representing approximately 25% of the total Units of the Company
outstanding upon consummation of the Plan to holders of Class 6
Equity Interests, and (iv) the Company will issue Options to
acquire 2,815,850 Units to holders of Class 8 Equity Interests;
WHEREAS, the Junior Note Indenture provides that interest
accruing on the Junior Notes is payable through the issuance by the
Company of additional Units ("Interest Units") in amounts
determined in accordance with the Junior Note Indenture;
WHEREAS, the Company has agreed pursuant to the Plan
that, whenever Interest Units are issued pursuant to the Junior
Note Indenture, the Company will simultaneously issue to the Class
2 Unitholders, Class 5 Unitholders, and Class 6 Unitholders and
their permitted assignees additional Units in amounts sufficient to
protect the Units issued to such Unitholder under the Plan and
under this Agreement from dilution caused by the issuance of
Dilutive Rights;
WHEREAS, the Unitholders have agreed not to sell any
Units received by them pursuant to the Plan for a period of 180
days from the Plan Effective Date;
WHEREAS, the parties wish to enter into this Agreement in
order to set forth their agreement with respect to the issuance of
additional Units to the Unitholders and their agreement restricting
the transfer of Units by the Unitholders;
WHEREAS, it is a condition precedent to the effectiveness
of the Plan that the Company and the Unitholders shall have entered
into this Agreement;
NOW, THEREFORE, in consideration of the mutual promises
and agreements herein, and subject to the terms and conditions
hereinafter set forth, the parties hereby agree as follows:
ARTICLE 1
AGREEMENTS REGARDING ISSUANCE
AND TRANSFER OF UNITS AND PROTECTIVE RIGHTS
1.1 Initial Issuance of Protective Rights. Upon consummation
of the Plan, each Unitholder shall be automatically granted
hereunder a number of rights ("Protective Rights") equal to the
number of Units issued under the Plan to each such Unitholder in
respect of its Class 2 Claims, Class 5 Claims and Class 6 Equity
Interests.
1.2 Subsequent Issuances of Protective Rights and Units.
(a) On each Junior Note Interest Payment Date, each holder of
Protective Rights shall be automatically granted hereunder a number
of additional Protective Rights, rounded to the nearest whole
number, sufficient to cause each such holder to hold a number of
Protective Rights such that the ratio of (w) the aggregate number
of Protective Rights held by such holder after such issuance of new
Protective Rights divided by (x) the total number of Units
outstanding on a fully diluted basis (e.g., assuming the exercise
of all Options) immediately after the issuance of Dilutive Rights
on such date (including Units issued pursuant to Section 1.2(b)),
is equal to the ratio of (y) the aggregate number of Protective
Rights held by such holder immediately prior to the issuance of new
Protective Rights on such date, divided by (z) the total number of
Units outstanding on a fully diluted basis (e.g., assuming the
exercise of all Options) immediately prior to the issuance of
Dilutive Rights on such date. "Dilutive Rights" means (i) the
Interest Units issued by the Company pursuant to the Junior Note
Indenture on the applicable Junior Note Interest Payment Date,
(ii) the Options (or similar rights to acquire Units) issued by the
Company to the Class 8 Option Holders in connection with the
issuance of Interest Units on such Junior Note Interest Payment
Date, and (iii) the issuance of additional Units pursuant to
Section 1.2(b) on such Junior Note Interest Payment Date. The
Protective Rights issued pursuant to this Section 1.2(a) shall be
issued without payment of additional consideration.
(b) On each Junior Note Interest Payment Date, the Company
shall issue to each holder of Protective Rights a number of
additional Units equal to the number of Protective Rights issued to
such holder in accordance with Section 1.2(a) of this Agreement on
such Junior Note Interest Payment Date. The Units issued pursuant
to this Section 1.2(b) shall be issued without payment of
additional consideration.
1.3 Restrictions on Transfer of Units and Protective Rights.
Each Unitholder covenants and agrees that such Unitholder shall not
sell, transfer, assign or convey or otherwise dispose of any Unit
or Protective Right or any interest therein during the first 180
days following the Plan Effective Date.
ARTICLE 2
CONDITIONS TO EFFECTIVENESS
This Agreement shall become effective upon the satisfaction of
each of the following conditions:
2.1 Plan Effectiveness. All conditions precedent to the
effectiveness of the Plan (other than the execution and delivery of
this Agreement) shall have been satisfied or waived in accordance
with the provisions of the Plan.
2.2 Execution and Delivery. This Agreement shall have been
executed by the Company and each Unitholder and the Company and
each Unitholder shall have received written or telephonic
notification of the authorization of delivery thereof.
2.3 Registration Rights Agreement. A Registration Rights
Agreement in form and substance reasonably satisfactory to the
parties hereto shall have been executed by the Company, the its
general partners and each Unitholder and the Company and each
Unitholder shall have received written or telephonic notification
of the authorization of delivery thereof.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to each Unitholder that:
3.1 Organization and Standing of the Company. The Company is
a duly organized and validly existing limited partnership in good
standing under the laws of the State of Delaware and has all
requisite partnership power and authority for the ownership and
operation of its properties and for the carrying on of its business
as now conducted and as proposed to be conducted. The Company is
duly licensed or qualified and in good standing as a foreign
partnership authorized to do business in all jurisdictions in which
the nature of the respective business conducted or property owned
by it makes such qualification necessary.
3.2 Partnership Action; Enforceable Agreements. The Company
has the partnership power and authority, and has taken all
necessary partnership action required, to execute and deliver this
Agreement, the Units and any other agreements and instruments
executed in connection herewith and therewith, and each such
agreement and/or instrument constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company
in accordance with its terms.
3.3 Governmental Approvals. Except for the filings to be
made, if any, to comply with exemptions from registration or
qualification of the sale of the Units under federal and state
securities laws (collectively, "Exemption Filings"), no
authorization, consent, approval, license, exemption of, or filing
or registration with, any court or governmental agency or
instrumentality is necessary for the offer, issuance, sale,
execution or delivery by the Company of, or for the performance by
it of its obligations under, this Agreement or the Units or any of
the transactions contemplated hereunder. All Exemption Filings
will be timely made by the Company after the Closing Date.
3.4 Compliance with Other Instruments. The Company is in
compliance in all respects with the terms and provisions of (i) its
Amended and Restated Agreement of Limited Partnership and
certificate of limited partnership, as amended through and
including the Plan Effective Date, (ii) each mortgage, indenture,
lease, agreement and other instrument relating to obligations of
the Company, and (iii) all judgments, decrees, governmental orders,
statutes, rules or regulations by which it is bound or to which its
properties or assets are subject. Neither the execution and
delivery of this Agreement or the Units, nor the consummation of
any transaction contemplated hereby or thereby, has constituted or
resulted in a default or violation of any term or provision in any
of the foregoing documents or instruments.
3.5 Securities Act of 1933. The Company has complied and
will comply with all applicable federal or state securities laws in
connection with the issuance of the Units hereunder.
3.6 No Brokers or Finders. The Company owes no commission,
fee or other compensation to any Person as a finder or broker as a
result of the transactions contemplated by this Agreement.
3.7 Capitalization; Status of Units. 25,342,654 Units will
be issued and outstanding immediately after the Plan Effective Date
and Options to acquire 3,961,909 Units will be issued and
outstanding immediately after the Plan Effective Date. All of the
outstanding Units of the Company have been duly authorized, are
validly issued and have not been issued in violation of any
Person's preemptive rights and all Units issuable upon exercise of
outstanding Options have been duly authorized and, when issued in
accordance with the terms of such Options will be validly issued
and not issued in violation of any Person's preemptive rights. The
Units are duly authorized and, when issued in accordance with the
terms hereof, will be validly issued and free and clear of all
liens and encumbrances created by the Company.
<PAGE>
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF UNITHOLDERS
4.1 Representations by each Unitholder. Each Unitholder
represent for itself and no other Unitholder that:
(a) It is duly authorized to execute and
deliver this Agreement and all other agreements and instruments
executed in connection herewith.
(b) This Agreement and such other
agreements and instruments constitute the valid and binding
obligations of such Unitholder enforceable against it in accordance
with their respective terms;
(c) No consent or approval of any Person is required in
connection with the execution, delivery and performance of this
Agreement and such other agreements and instruments by such
Unitholder which has not heretofore been obtained.
ARTICLE 5
REPORTING REQUIREMENTS
Together with each issuance of Units made by the Company
to the Unitholders pursuant to Section 1.1 hereof, the Company
shall deliver to each holder of Protective Rights a certificate
setting forth the number of Interest Units issued pursuant to
Section 307 of the Junior Note Indenture on the correlative Junior
Note Interest Payment Date.
ARTICLE 6
DEFINITIONS AND ACCOUNTING TERMS
6.1 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to
be equally applicable to both the singular and plural forms of the
terms defined):
"Agreement" means this Unitholders Agreement, as from
time to time amended and in effect between the parties hereto.
"Class 2 Claim" has the meaning assigned thereto in the
Plan.
"Class 2 Unitholder" means an entity receiving Units in
the Plan in respect of its Class 2 Claim.
"Class 5 Claim" has the meaning assigned thereto in the
Plan.
"Class 5 Unitholder" means an entity receiving Units in
the Plan in respect of its Class 5 Claim.
"Class 6 Equity Interest" has the meaning assigned
thereto in the Plan.
"Class 6 Unitholder" means an entity receiving Units in
the Plan in respect of its Class 6 Equity Interest.
"Class 8 Equity Interest" has the meaning assigned
thereto in the Plan.
"Class 8 Option Holder" means an entity receiving Options
in the Plan in respect of its Class 8 Equity Interest.
"Closing" means the date that all conditions precedent to
the effectiveness of this Agreement set forth in Article 2 have
been satisfied or waived in writing.
"Collateralized Note Indenture" means that certain
Amended and Restated Collateralized Note Indenture dated as of
December 12, 1996, by and between Huntway and Fleet National Bank,
as Indenture Trustee, pursuant to which the Senior Notes are
issued, as such agreement may be amended, amended and restated,
supplemented or modified from time to time.
"Collateralized Note Obligations" means all obligations
of the Company arising under the Collateralized Note Indenture and
the Senior Notes.
"Company" means Huntway Partners, L.P. a Delaware limited
partnership and its successors and assigns.
"Effective Date" means the date on which the Plan becomes
effective.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended, or any similar federal statute, and the rules and
regulations of the Securities and Exchange Commission (or of any
other Federal agency then administering the Exchange Act)
thereunder, all as the same shall be in effect at the time.
"Exemption Filings" shall have the meaning assigned to
that term in Section 3.3 of this Agreement.
"Interest Units" has the meaning assigned thereto in the
recitals to this Agreement.
"Junior Note Indenture" means the Amended and Restated
Junior Subordinated Debenture Indenture dated as of December 12,
1996, between the Company and the IBJ Schroder Bank & Trust
Company, as Indenture Trustee, pursuant to which the Junior Notes
are issued.
"Junior Note Interest Payment Date" means each date on
which the Company pays interest to the holders of Junior Notes
under the Junior Note Indenture in the form of Units.
"Junior Notes" means the Company's 12% Junior Debentures
Due 2005 issued and outstanding pursuant to the Junior Note
Indenture.
"Options" means options issued by the Company to acquire
Units.
"Person" means an individual, corporation, partnership,
joint venture, trust, or unincorporated organization, or a
government or any agency or political subdivision thereof.
"Plan" has the meaning assigned thereto in the Recitals
to this Agreement.
"Protected Options" means all Options issued to the Class
8 Option Holders on the Plan Effective Date in satisfaction of
their respective Class 8 Equity Interests, and all Options issued
to the Class 8 Option Holders and their permitted assignees to
protect such Class 8 Option Holders from dilution caused by the
issuance of Dilutive Rights.
"Protective Rights" has the meaning assigned thereto in
Section 1.1.
"Securities Act" means the Securities Act of 1933, as
amended, or any similar Federal statute, and the rules and
regulations of the Securities and Exchange Commission (or of any
other Federal agency then administering the Securities Act)
thereunder, all as the same shall be in effect at the time.
"Senior Notes" means the Senior Notes (Other) and the
Senior Notes (Sunbelt IDB).
"Senior Notes (Other)" means the Company's 12% Senior
Secured Notes (Other) Due 2005 issued and outstanding pursuant to
the Collateralized Note Indenture (including any Secondary
Securities (as such term is defined in the Collateralized Note
Indenture), but excluding the Senior Notes (Sunbelt IDB)).
"Senior Notes (Sunbelt IDB)" means the Company's 12%
Senior Secured Notes (Sunbelt IDB) Due 2005 issued and outstanding
pursuant to the Collateralized Note Indenture.
"Units" means units representing a fractional part of the
partnership interests of the limited partners in the Amended and
Restated Agreement of Limited Partnership of Huntway Partners, L.P.
dated as of November 9, 1988, among Huntway Managing Partner, L.P.,
a Delaware limited partnership, and each of the other partners
named therein, as amended through and including the date hereof and
as it may be further amended or restated from time to time.
6.2 Accounting Terms.
All accounting terms not specifically defined herein
shall be construed in accordance with generally accepted accounting
principles, and all other financial data submitted pursuant to this
Agreement shall be prepared and calculated in accordance with such
principles.
ARTICLE 7
MISCELLANEOUS
7.1 No Waiver; Cumulative Remedies. No failure or delay on
the part of any Unitholder in exercising any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any such right, power or remedy preclude any
other or further exercise thereof or the exercise of any other
right, power or remedy hereunder. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
7.2 Amendments, Waivers and Consents. Any provision in this
Agreement or the Units to the contrary notwithstanding, no changes
in or additions to this Agreement or the Units may be made, and
compliance with any covenant or provision herein or therein set
forth may not be omitted or waived, until and unless the Company
obtains consent thereto in writing from each Unitholder. Any waiver
or consent may be given subject to satisfaction of conditions
stated therein and any waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
7.3 Addresses for Notices, etc. All notices, requests,
demands and other communications provided for hereunder shall be in
writing (including telegraphic communication) and mailed, by
certified or registered mail, or telegraphed or delivered to the
address for such party listed on the signature pages hereof; or to
any party as such other address as shall be designated by such
party in a written notice to the other parties delivered in
accordance with this Section.
7.4 Costs, Expenses and Taxes. Each party shall pay its own
fees in connection with the investigation, preparation, execution
and delivery of this Agreement, the Units and other instruments and
documents to be delivered hereunder and the transactions
contemplated hereby and thereby. In addition, the Company shall
pay any and all material stamp and other taxes payable or
determined to be payable by the Company in connection with the
execution and delivery of this Agreement, the Units, and other
instruments and documents to be delivered hereunder or thereunder,
and agrees to save each Unitholder harmless from and against any
and all liabilities with respect to or resulting from any delay in
paying or omission to pay such taxes and filing fees. In the event
of any controversy, claim or dispute among the parties hereto
arising out of or relating to this Agreement, or any breach hereof,
the prevailing party shall be entitled to recover from the losing
party reasonable attorney's fees, expenses and costs.
7.5 Binding Effect; Assignment. This Agreement shall be
binding upon and inure to the benefit of the Company, each
Unitholder, and their respective successors and permitted assigns.
The Company shall not have the right to assign its obligations
hereunder without the prior written consent of each Unitholder
obtained in accordance with Section 7.2 hereof. Subject to Section
1.3, each Unitholder (an "Assignor") may assign all or any portion
of its rights and interests hereunder to any person or entity (an
"Assignee") and upon any such assignment, the Assignee shall be
deemed to be a "Unitholder" hereunder; provided, that (i) each
Unitholder that is listed on the signature pages hereof may assign
its interest hereunder to not more than four Assignees; (ii) each
Assignee of a Unitholder may further assign its rights hereunder
only in whole and not in part, (iii) each Assignee of a Unitholder
shall be an "Accredited Investor" as such term is defined in
Regulation D to the Securities Act of 1933, as amended from time to
time and (iv) each Assignee of a Unitholder shall provide evidence
reasonably satisfactory to the Company of such Assignees's
agreement to be bound by the terms of this Agreement and its
acknowledgment that the Protective Rights are speculative in nature
and the Assignee is able to bear the economic risk of such
investment, including a total loss of value of such investment.
The proposed Assignor and Assignee of any Protective Rights shall
jointly provide prior notice to the Company of any such proposed
assignment and shall provide evidence of the Assignee's agreement
and representation contemplated by the preceding sentence. Except
as otherwise expressly permitted by this Agreement, any assignment
or transfer of this Agreement or any rights hereunder shall be void
ab initio and of no force and effect.
7.6 Survival of Representations and Warranties. All
representations and warranties made in this Agreement, the Units or
any other instrument or document delivered in connection herewith
or therewith, shall survive the execution and delivery hereof or
thereof.
7.7 Prior Agreements. This Agreement evidences the
obligation of the Company set forth in Article II of the Plan to
issue Units to the holders of Class 2 Claims, Class 5 Claims and
Class 6 Equity Interests to prevent dilution caused by the issuance
of the Dilutive Rights. This Agreement constitutes the entire
agreement between the parties and supersedes any prior
understandings or agreements concerning the subject matter hereof.
7.8 Severability. The invalidity or unenforceability of any
provision hereto shall in no way affect the validity or
enforceability of any other provision.
7.9 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
7.10 Headings. Article, Section and subsection headings in
this Agreement are included herein for convenience of reference
only and shall not constitute a part of this Agreement for any
other purpose.
7.11 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall
constitute one and the same instrument, and any of the parties
hereto may execute this Agreement by signing any such counterpart.
7.12 Further Assurances. From and after the date of this
Agreement, upon the reasonable request of any party hereto, the
other parties hereto shall execute and deliver such instruments,
documents and other writings as may be reasonably necessary or
desirable to confirm and carry out and to effectuate fully the
intent and purposes of this Agreement.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
HUNTWAY PARTNERS, L.P.
By: HUNTWAY MANAGING PARTNER, L.P., its
Managing General Partner
By: Huntway Division of Reprise
holdings, Inc., its sole General
Partner
By: /s/ Warren J. Nelson
Warren J. Nelson
Title: Executive Vice President
and Chief Financial
Officer
UNITHOLDERS:
BANKERS TRUST COMPANY
By: /s/ Carl O. Roark
Carl O. Roark
Title: Managing Director
Notice Address:
One Bankers Trust Plaza
Mail Stop 2283
130 Liberty Street, 28th Floor
New York, New York 10066
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By: /s/ Michael L. Klofas
Name: Michael L. Klofas
Title: Managing Director
Notice Address:
Mike Klofas
Mass Mutual Life Insurance Company
1295 State Street
Springfield, MA 01111
MELLON BANK, N.A., as trustee for
First Plaza Group Trust
By: /s/ Laura A. Adams
Name: Laura A. Adams
Title: Trust Officer
Notice Address:
c/o John R. Bauer
Managing Partner
Contrarian Capital Management, L.L.C.
411 West Putnam, Suite 225
Greenwich, Connecticut 06830
OPPENHEIMER & COMPANY, INC., for
itself and as agent for certain
affiliates
By: /s/ John Bauer
Name: John Bauer
Title: Managing Partner
Notice Address:
c/o John R. Bauer
Managing Partner
Contrarian Capital Management, L.L.C.
411 West Putnam, Suite 225
Greenwich, Connecticut 06830
LINDNER GROWTH FUND
By: RYBACK MANAGEMENT CORPORATION
By: /s/ Larry Callahan
Name: Larry Calahan
Title: Vice President
Notice Address:
c/o Ryback Management Corporation
7711 Carondelet Avenue, Suite 700
St. Louis, Misouri 63105
FIRST CHICAGO EQUITY CORPORATION
By: /s/ William J. Roberts
Name: William J. Roberts
Title: Vice President and Director
Notice Address:
Samuel M. Mencoff
First Chicago Equity Corporation
Three First National Plaza, Suite 1300
Chicago, IL 60602
Telecopy: 312 732 4098
MADISON DEARBORN PARTNERS III
By: /s/ Justin Huscher
Name: Justin Huscher
Title: General Partner
Notice Address:
Samuel M. Mencoff
Madison Dearborn Partners
Three First National Plaza, Suite 1300
Chicago, IL 60602
Telecopy: 312 732 4098
<PAGE>
EXHIBIT 3
HUNTWAY MANAGING PARTNER, L.P.
July 22, 1996
Bankers Trust Company
Huntway Holdings, L.P.
Massachusetts Mutual Life Insurance Company
Mellon Bank, N.A.
Oppenheimer & Co., Inc.
First Chicago Equity Corporation
Madison Dearborn Partners III
Re: Huntway Partners, L.P.
Ladies and Gentlemen:
This letter, when executed by the parties hereto, shall
constitute the binding agreement among Bankers Trust Company,
Massachusetts Mutual Life Insurance Company, Mellon Bank, N.A., as
Trustee for First Plaza Group Trust, Oppenheimer & Co., for itself
and as agent for certain affiliated entities (collectively, the
"Senior Lenders"), First Chicago Equity Corporation (f/k/a First
Capital Corporation of Chicago) and Madison Dearborn Partners III
(collectively, the "Junior Lenders"), Huntway Managing Partner,
L.P. ("HMP") and Huntway Holdings, L.P. (together with HMP, the
"General Partners") regarding the matters set forth herein.
1. If, on or after the later of (i) the three (3)
month anniversary of the Effective Date (as that term is
defined in the proposed Prepackaged Plan of Reorganization of
Huntway Partners, L.P. ("Huntway") under Chapter 11 of the United
States Bankruptcy Code (the "Prepackaged Plan")) or (ii) January 1,
1997, holders of a majority of the outstanding principal of New
Senior Notes (as defined in the Prepacked Plan) deliver to HMP a
written proposal that Huntway convert, merge or reorganize itself
into corporate form, (a) the General Partners agree to submit a
proposal, in form and substance reasonably satisfactory to the
Senior Lenders, the Junior Lenders, and the General Partners, to
the record holders of Huntway's limited partnership units (the
"Unitholders") for approval of such conversion, merger or
reorganization, in any case as required by the Amended and Restated
Agreement of Limited Partnership of Huntway Partners, L.P., as
amended (the "Limited Partnership Agreement") or by applicable law
or regulation and (b) the Senior Lenders, in their capacity as
Unitholders, the Junior Lenders, in their capacity as Unitholders,
and the General Partners shall support and vote for such proposal;
provided that the terms of the Prepackaged Plan are substantially
as set forth in the draft Prepackaged Plan and Consent Solicitation
Statement delivered to the Senior Lenders on or about July 17, 1996
and the Effective Date of the Prepackaged Plan has occurred.
2. If, on or after the later of (i) the three (3)
month anniversary of the Effective Date of the Prepackaged
Plan or (ii) January 1, 1997, HMP submits to Huntway's
Unitholders a written proposal, in form and substance reasonably
satisfactory to the Senior Lenders, the Junior Lenders and the
General Partners, and in any case as required by the Limited
Partnership Agreement or by applicable law or regulation, that
Huntway convert, merge or reorganize itself into corporate form,
the Senior Lenders, in their capacity as Unitholders, the Junior
Lenders, in their capacity as Unitholders, and the General Partners
shall support and vote for such proposal; provided that the terms
of the Prepackaged Plan are substantially as set forth in the draft
Prepackaged Plan and Consent Solicitation Statement delivered to
the Senior Lenders on or about July 17, 1996 and the Effective Date
of the Prepackaged Plan has occurred.
3. If Huntway converts, merges or reorganizes
itself into corporate form, at the request of any Senior
Lender or Junior Lender, Huntway will, at its own expense,
register the securities received by such Senior Lender or Junior
Lender in connection with such conversion, merger or reorganization
on terms and conditions reasonably satisfactory to such Senior
Lender or Junior Lender. The parties, hereto hereby agree to
negotiate in good faith on the terms of a registration rights
agreement with respect to such securities, and enter into such
agreement as soon as reasonably practicable after the date hereof.
4. From and after the date hereof to and
including the Termination Date (as defined below), if a Senior
Lender or a Junior Lender seeks to transfer any limited partnership
units, any New Securities (as defined in the General Restructuring
Agreement dated as of June 22, 1993 among Huntway, the General
Partners, the Junior Lenders, Sunbelt Refining Company, L.P.
("Sunbelt") and the Senior Lenders party thereto) or any interest
therein to any third party, such Senior Lender or Junior Lender
agrees as a condition precedent to any such transfer to require
such third-party transferee to execute a written agreement, in form
and substance reasonably satisfactory to the General Partners, the
other Senior Lenders and the other Junior Lenders, pursuant to
which such transferee agrees to be bound by the terms of this
letter agreement.
5. Each Senior Lender and Junior Lender hereby
agrees that it will not issue any reports on Form 1099-C to
Huntway, its partners and affiliates (including the General
Partners) or the Internal Revenue Service under Internal Revenue
Code Section 6050P and the regulations thereunder with respect to
the exchanges of debt securities for new debt securities and
partnership units occurring pursuant to the Prepackaged Plan (the
"Exchanges"); provided that (i) the terms of the Prepackaged Plan
are substantially as set forth in the draft Prepackaged Plan and
Consent Solicitation Statement delivered to the Senior Lenders on
or about July 17, 1996, (ii) the Effective Date of the Prepackaged
Plan occurs before January 1, 1997, (iii) neither T.D.8654 nor
Notice 94-73 is modified or superseded in a way that would require
the Senior Lenders or Junior Lenders to file reports on Form 1099-C
notwithstanding the consummation of the Prepackaged Plan before
January 1, 1997 and (iv) no other event occurs that reasonably
gives such Senior Lender or Junior Lender grounds to believe that
failure to issue a report on Form 1099-C with respect to the
Exchanges could potentially subject such Senior Lender or Junior
Lender to penalties. If any event described in the proviso to the
immediately preceding sentence occurs, the Senior Lenders, the
Junior Lenders, Huntway and the General Partners will consult with
each other in a good faith attempt to agree on the appropriate
disclosure to be included in any report to be filed on Form 1099-C.
Nothing contained in this letter agreement shall preclude the
Senior Lenders and Junior Lenders from reporting the Exchanges on
Form 1099-A pursuant to Internal Revenue Code Section 6050J and the
regulations thereunder. The Senior Lenders, the Junior Lenders,
Huntway and the General Partners will consult with each other in a
good faith attempt to agree on the appropriate disclosure to be
included in any report to be filed on Form 1099-A (or any similar
information report to be filed by the Senior Lenders or Junior
Lenders).
6. Huntway shall give notice to the Senior Lenders
(i) if the Internal Revenue Service commences any audit of
the taxable year that includes the Exchanges or (ii) if
the Internal Revenue Service asserts any proposed adjustments
related to the Exchanges for any taxable year during which Huntway
is treated as a partnership for federal income tax purposes to the
extent that such adjustments are inconsistent with Article 20 of
the Limited Partnership Agreement.
7. This letter agreement sets forth the entire
understanding of the parties with respect to the subject
matter contained in this letter agreement and supersedes any and
all prior contemporaneous agreements, understandings and
arrangements relating to the subject matter hereof. The agreements
of the parties contained herein shall survive the execution and
delivery of this agreement, the confirmation of the Prepackaged
Plan, the approval of any disclosure and/or solicitation materials
related thereto and the consummation of all of the transactions
contemplated by the Prepackaged Plan.
8. This letter agreement may be executed in one or
more counterparts, each of which shall be an original but
all of which, taken together, shall constitute one and the same
instrument. Transmission by telecopier of an executed counterpart
of this agreement shall be deemed to constitute due and sufficient
delivery of such counterpart. The parties hereby agree to deliver
to each other an original of such counterpart promptly after
delivery of the facsimile.
9. This letter agreement may not be amended, waived
or modified except by a writing executed by all of the parties
hereto. This letter agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successor, assigns, and permitted transferees.
10. Except with respect to the terms and agreements
set forth in paragraphs 3, 5 and 6 above, this letter
agreement shall terminate (the "Termination Date") on the earliest
to occur of the following: the date that (a) the parties hereto
execute a written agreement terminating this agreement, (b) Huntway
is treated as a corporation for federal income tax purposes, (c)
Huntway converts, merges or reorganizes itself into corporate form,
(d) any Senior Lender terminates its obligations under that certain
Amended and Restated Agreement of Understanding dated as of July
15, 1996 by and among the parties hereto and Sunbelt pursuant to
paragraph 5 thereof, or (e) that is 180 days after the Effective
Date. The terms and agreements set forth in paragraph 3, 5 and 6
shall survive any termination of this agreement.
<PAGE>
Finally, by executing this letter agreement, you
represent that (i) you have the authority to execute this agreement
on behalf of your respective organization, and (ii) your respective
organization agrees to and is authorized to be bound by the terms
of this letter agreement.
HUNTWAY MANAGING PARTNER, L.P.
By: /s/ Warren J. Nelson
Warren J. Nelson
Its: Executive Vice President and
Chief Financial Officer
HUNTWAY HOLDINGS, L.P.
By: /s/ Warren J. Nelson
Warren J. Nelson
Its: Executive Vice President and
Chief Financial Officer
<PAGE>
Agreed to and Accepted:
BANKERS TRUST COMPANY OPPENHEIMER & CO., INC., on behalf
of itself and as agent for certain
affiliated entities
By: Contrarian Capital Advisors,
LLC,
as duly authorized Agent
By: /s/ Carl O. Roark By: /s/ Janice M. Stanton
Carl O. Roark Janice M. Stanton
Its: Managing Director Its: Partner
MASSACHUSETTS MUTUAL LIFE FIRST CHICAGO EQUITY
INSURANCE COMPANY CORPORATION
By: /s/ Michael L. Klofas By: /s/ Marie N. Bugger
Michael L. Klofas Marie N. Bugger
Its: Managing Director Its: Senior Vice President
MELLON BANK, N.A., solely MADISON DEARBORN PARTNERS, III
in its capacity as Trustee
for FIRST PLAZA GROUP TRUST,
(as directed by Contrarian
Capitol Advisors, L.L.C.),
and not in its individual
capacity
By: /s/ William R. Nee By: /s/ Samuel M. Mencoff
William R. Nee Samuel M. Mencoff
Its: Associate Counsel Its: General Partner
<PAGE>
EXHIBIT 4
REGISTRATION RIGHTS AGREEMENT
Dated as of December 12, 1996
by and among
HUNTWAY PARTNERS, L.P.
and
BANKERS TRUST COMPANY,
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY,
MELLON BANK, N.A., as trustee for First Plaza Group Trust,
OPPENHEIMER & COMPANY, INC., for itself and
as agent for certain affiliates,
LINDNER GROWTH FUND
AND
FIRST CHICAGO EQUITY CORPORATION and
MADISON DEARBORN PARTNERS, III
<PAGE>
TABLE OF CONTENTS
Pages
1. CERTAIN DEFINITIONS . . . . . . . . . . . . . . . . . . . 1
2. REQUIRED REGISTRATION . . . . . . . . . . . . . . . . . . 4
3. DEMAND REGISTRATION . . . . . . . . . . . . . . . . . . . 4
(a) Right to Demand Registration . . . . . . . . . . . . 4
(b) Conditions of Participation. . . . . . . . . . . . . 5
(c) Company's Rights of Postponement . . . . . . . . . . 6
4. "PIGGYBACK" REGISTRATION. . . . . . . . . . . . . . . . . 6
(a) Right to Request Piggyback Registration. . . . . . . 7
(b) Piggyback Notice . . . . . . . . . . . . . . . . . . 7
(c) Agreement to Sell on Same Basis. . . . . . . . . . . 7
(d) Priority . . . . . . . . . . . . . . . . . . . . . . 7
(e) Right of Company to Withdraw . . . . . . . . . . . . 7
5. SHELF REGISTRATION. . . . . . . . . . . . . . . . . . . . 8
(a) Initial Shelf Registration . . . . . . . . . . . . . 8
(b) Subsequent Shelf Registrations . . . . . . . . . . . 8
(c) Supplements and Amendments . . . . . . . . . . . . . 9
(d) Information Regarding
Sales. . . . . . . . . . . . . . . . . . . . . . . . 9
6. HOLD-BACK AGREEMENTS. . . . . . . . . . . . . . . . . . . 9
(a) Restrictions on Public Sale by the Company . . . . . 9
(b) Restrictions on Public Sale by Holders of
Restricted Securities. . . . . . . . . . . . . . . . 9
7. REGISTRATION PROCEDURES . . . . . . . . . . . . . . . . . 10
(a) Filing of Registration Statement . . . . . . . . . . 10
(b) Filing of Amendments, etc. . . . . . . . . . . . . . 10
(c) Required Notices . . . . . . . . . . . . . . . . . . 10
(d) Prevention of Orders and Correction of Disclosure. . 11
(e) Incorporation of Information; Required Filings . . . 11
(f) Delivery of Copy of Registration Statement . . . . . 12
(g) Delivery of Copies of Prospectus . . . . . . . . . . 12
(h) Blue Sky Laws. . . . . . . . . . . . . . . . . . . . 12
(i) Certificates . . . . . . . . . . . . . . . . . . . . 12
(j) Other Registrations or Approvals . . . . . . . . . . 12
(k) Supplements and Amendments . . . . . . . . . . . . . 13
(l) Listing on Exchanges . . . . . . . . . . . . . . . . 13
(m) Underwritten Offerings . . . . . . . . . . . . . . . 13
(n) Inspection . . . . . . . . . . . . . . . . . . . . . 14
(o) Earnings Statements. . . . . . . . . . . . . . . . . 14
(p) Cooperation. . . . . . . . . . . . . . . . . . . . . 14
(q) Other. . . . . . . . . . . . . . . . . . . . . . . . 15
8. REGISTRATION EXPENSES . . . . . . . . . . . . . . . . . . 15
9. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . 16
(a) Indemnification by the Company . . . . . . . . . . . 16
(b) Indemnification by Holder of Registrable
Securities . . . . . . . . . . . . . . . . . . . . . 16
(c) Conduct of Indemnification Proceedings . . . . . . . 17
(d) Contribution . . . . . . . . . . . . . . . . . . . . 18
(e) Limit on Contribution. . . . . . . . . . . . . . . . 18
(f) Remedies Cumulative. . . . . . . . . . . . . . . . . 19
(g) Underwriting Agreement Controls. . . . . . . . . . . 19
10. SELECTION OF UNDERWRITERS . . . . . . . . . . . . . . . . 19
(a) Selection by Majority Holders. . . . . . . . . . . . 19
(b) Selection by the Company . . . . . . . . . . . . . . 19
(c) Agreement to Comply. . . . . . . . . . . . . . . . . 19
11. INCORPORATION, MERGER, ETC. . . . . . . . . . . . . . . . 20
12. OTHER REGISTRATION RIGHTS.. . . . . . . . . . . . . . . . 20
13. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . 20
(a) Damages. . . . . . . . . . . . . . . . . . . . . . . 20
(b) Specific Performance . . . . . . . . . . . . . . . . 20
(c) No Inconsistent Agreements . . . . . . . . . . . . . 21
(d) Amendments and Waivers . . . . . . . . . . . . . . . 21
(e) Notices. . . . . . . . . . . . . . . . . . . . . . . 21
(f) Interpretation . . . . . . . . . . . . . . . . . . . 21
(g) Counterparts . . . . . . . . . . . . . . . . . . . . 22
(h) Entire Agreement; No Third Party Beneficiaries . . . 22
(i) Governing Law. . . . . . . . . . . . . . . . . . . . 22
(j) Severability . . . . . . . . . . . . . . . . . . . . 22
(k) Assignment . . . . . . . . . . . . . . . . . . . . . 22
(l) Attorneys' Fees. . . . . . . . . . . . . . . . . . . 22
(m) Securities Held by the Company or Its Affiliates . . 22
(n) Use of Terms . . . . . . . . . . . . . . . . . . . . 23
<PAGE>
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is
dated as of December 12, 1996 and is entered into by and among
HUNTWAY PARTNERS, L.P., a Delaware limited partnership (the
"Company"), BANKERS TRUST COMPANY ("Bankers"), MASSACHUSETTS MUTUAL
LIFE INSURANCE COMPANY, MELLON BANK, N.A., as trustee for First
Plaza Group Trust, OPPENHEIMER & COMPANY, INC., for itself and as
agent for certain affiliates, LINDNER GROWTH FUND, FIRST CHICAGO
EQUITY CORPORATION, and MADISON DEARBORN PARTNERS, III
(individually, a "Holder" and collectively, the "Holders").
RECITALS
This Agreement is entered into pursuant to the
Prepackaged Plan of the Company in order to provide, among other
things, for the agreement by the Company to register in accordance
with the requirements of the Securities Act (a) the resale of the
Common Units issued to the Holders in connection with the
Prepackaged Plan and the Unitholders Agreement and (b) the resale
of any Other Securities that are issued to the Holders in exchange
for or in respect of the Common Units in connection with the
conversion of the Company to corporate form or otherwise.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises
herein contained, the parties hereto mutually agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms will have
the following meanings:
"AGREEMENT" means this Registration Rights Agreement as
it may be amended, supplemented or otherwise modified from time to
time.
"COMMON UNITS" means the common units representing
limited partnership interests in the Company as defined in the
Partnership Agreement, including the 25,342,654 common units
representing limited partnership interests in the Company that will
be issued on the Plan Effective Date.
"COMPANY" is defined in the introductory paragraph
hereof.
"DEMAND NOTICE" is defined in Section 3(a).
"DEMAND REGISTRATION STATEMENT" is defined in Section
3(a).
"EFFECTIVENESS PERIOD" is defined in Section 5(a).
"EQUIVALENT UNITS" means Common Units and units of any
new class ("NEW CLASS") of the Company's securities without fixed
maximum distributions or which share with the Common Units in the
residual value of the Company on liquidation or which are
convertible into or exchangeable for such securities. Units of any
New Class shall be deemed to be a number of Common Units which (a)
would have the same share of non-fixed distributions or liquidation
value, whichever is higher, as a unit of New Class or (b) would be
exchangeable for such units or into which such units would convert.
"EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended.
"HOLDER" or "HOLDERS" is defined in the introductory
paragraph hereof.
"INDEMNIFIED PERSON" is defined in Section 9(a).
"INITIAL SHELF REGISTRATION" is defined in Section 5(a).
"INSPECTORS" is defined in Section 7(n).
"LOSSES" is defined in Section 9(a).
"MAJORITY HOLDERS" means, at any time, the Holders of at
least 662/3% of the total number of Registrable Securities held by
all the Holders that were received pursuant to the Prepackaged
Plan.
"NOTEHOLDERS" means Massachusetts Mutual Life Insurance
Company, Mellon Bank, N.A., as trustee for First Plaza Group Trust,
Oppenheimer & Company, Inc. for itself and as agent for certain
affiliates, Lindner Growth Fund, First Chicago Equity Corporation,
Madison Dearborn Partners, III, and their respective assigns
permitted hereunder.
"NOTEHOLDERS GROUP" means Noteholders holding in excess
of 662/3% of the total number of Registrable Securities held by all
Holders that were received pursuant to the Prepackaged Plan.
"NASD" is defined in Section 7(p).
"NASDAQ" is defined in Section 7(l).
"OFFERING" with respect to any of the Company's
securities means the registration of such securities, whether
underwritten or not, for sale to the public.
"OTHER SECURITIES" is defined in the definition of
Registrable Securities.
"PARTICIPATING HOLDER" is defined in Section 3(c).
"PARTNERSHIP AGREEMENT" means the Amended and Restated
Agreement of Limited Partnership of Huntway Partners, L.P., dated
as of November 9, 1988, among Huntway Managing Partner, L.P., a
Delaware limited partnership, and the other partners named therein,
as amended or modified to the date hereof.
"PERSON" means an individual, trustee, corporation,
partnership, limited liability company, joint stock company, trust,
unincorporated association, union, business association, firm or
other entity.
"PIGGYBACK NOTICE" is defined in Section 4(a).
"PIGGYBACK REGISTRATION STATEMENT" is defined in
introductory paragraph of Section 4.
"PLAN EFFECTIVE DATE" means the Effective Date (as such
term is defined in the Prepackaged Plan).
"PRELIMINARY PROSPECTUS" means any preliminary prospectus
that may be included in any Registration Statement.
"PREPACKAGED PLAN" means the Prepackaged Plan of
Reorganization of Huntway Partners, L.P., under Chapter 11 of the
United States Bankruptcy Code.
"PROCEEDING" or "PROCEEDINGS" is defined in Section 9(c).
"PROSPECTUS" means the prospectus included in any
Registration Statement (including, without limitation, a prospectus
that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance
upon Rule 430A promulgated under the Securities Act), as amended or
supplemented by any prospectus supplement, with respect to the
terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement, and all other amendments
and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to
be incorporated by reference in such Prospectus.
"RECORDS" is defined in Section 7(n).
"REGISTRABLE SECURITIES" means the Common Units issued to
any of the Holders pursuant to the terms of the Prepackaged Plan,
including, without limitation, any Common Units issued to any of
the Holders from time to time pursuant to the Unitholders
Agreement, until (x) a Registration Statement covering such Common
Units has been declared effective by the SEC and such Common Units
have been disposed of by each Holder in accordance with such
effective Registration Statement, (y) such Common Units are sold in
compliance with Rule 144, or (z) all such Common Units cease to be
issued or outstanding. If, as a result of any incorporation of the
Company or other change of business entity, reclassification, split
of equity securities of the Company, distribution, business
combination, exchange offer or any other similar transaction or
event, any capital stock, evidences of indebtedness, warrants,
options, rights or other securities (collectively "OTHER
SECURITIES") are issued or transferred to any Holder of Registrable
Securities in respect of Registrable Securities held by such
Holder, references in the preceding sentence to Common Units shall
be deemed to include appropriate references to such Other
Securities.
"REGISTRATION STATEMENT" means any registration statement
of the Company prepared in accordance with the requirements of the
Securities Act and the Regulations that covers any of the
Registrable Securities, including the Prospectus, amendments and
supplements to such registration statement, post-effective
amendments, all exhibits, and all material incorporated by
reference or deemed to be incorporated by reference in such
registration statement at the time such registration statement
became effective.
"REGULATIONS" means the General Rules and Regulations of
the SEC under the Securities Act.
"RULE 144" means Rule 144 of the Regulations, as such
Rule may be amended from time to time, or any similar rule (other
than Rule 144A) or regulation hereafter adopted by the SEC
providing for offers and sales of securities made in compliance
therewith resulting in offers and sales by subsequent holders of
such securities being free of the registration and prospectus
delivery requirements of the Securities Act.
"SEC" means the Securities and Exchange Commission or any
other similar or successor agency of the United States government
administering the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as
amended.
"SUBSEQUENT SHELF REGISTRATION" is defined in Section
5(b).
"UNITHOLDERS AGREEMENT" means the Unitholders Agreement
by and among the Company, and the Holders, dated as of December 12,
1996, executed and delivered pursuant to the Prepackaged Plan, as
such agreement may be amended, supplemented or otherwise modified
from time to time.
2. REQUIRED REGISTRATION.
The Company will register the Registrable Securities upon
the terms, and subject to the limitations, hereinafter set forth.
3. DEMAND REGISTRATION.
(a) Right to Demand Registration. Each
of Bankers, the Noteholders Group and Majority Holders shall have
the right, exercisable at any time by written notice (the "DEMAND
NOTICE") to the Company and any Holders who did not send the Demand
Notice, to demand that the Company file, and the Company shall
(subject to Section 3(c)) file, a Registration Statement, as soon
as reasonably practicable but in no event later than 60 days after
such Demand Notice (but not earlier than 180 days after the Plan
Effective Date), on such form as shall be appropriate under the
Securities Act covering the resale of Registrable Securities by
such Holders (a "DEMAND REGISTRATION STATEMENT"); provided,
however, that the Holders' rights to require the Company to file a
Demand Registration Statement shall be suspended during such period
or periods that an Initial Shelf Registration or a Subsequent Shelf
Registration covering all of the Registrable Securities and
otherwise complying with Section 5 hereof shall be effective. The
Demand Registration Statement shall cover Registrable Securities as
provided herein. The Company shall use its reasonable best efforts
to cause such Demand Registration Statement to be declared
effective on the date requested by the managing underwriter for the
Offering, or, if such Offering is not underwritten, as soon as
practicable after the filing thereof with the SEC, and shall keep
such Demand Registration Statement effective for so long as the
Offering has not been completed (but in no event longer than 180
days from the effective date of such Demand Registration
Statement).
Except as provided in the immediately following sentence,
only Bankers shall have the right to participate in a Demand
Registration Statement demanded by Bankers; only Noteholders shall
have the right to participate in a Demand Registration Statement
demanded by the Noteholders Group; and all Holders shall have the
right to participate pro rata in a Demand Registration Statement
demanded by Majority Holders. The Holders not entitled to
participate in any Demand Registration Statement shall have
"piggyback rights" under Section 4 and other persons may have
Registration Rights as contemplated by Section 12.
(b) Conditions of Participation. Any Holder that
elects to participate in the Demand Registration
Statement (a "PARTICIPATING HOLDER") shall be permitted to register
securities of the Company in such Demand Registration Statement on
the following terms and conditions:
(i) Each Participating Holder who did
not join in the Demand Notice must give written notice of such
election to the Participating Holders who did join in the
Demand Notice and to the Company within 15 days of the date
the Demand Notice was given, such notice to specify the number
of securities proposed to be sold by each such Holder in the
Offering;
(ii) Each Participating Holder must
agree to sell securities on the same basis provided in the
underwriting arrangements approved by the Participating
Holders who did join in the Demand Notice and to timely
complete and execute all questionnaires, powers of attorney,
indemnities, hold-back agreements, underwriting agreements and
other documents required under the terms of such underwriting
arrangements or by the SEC or by any state securities
regulatory body and must promptly notify the Company of all
sales made pursuant to the Demand Registration Statement and
the number of unsold Registrable Securities, if any, covered
thereby 180 days after the effective date thereof;
(iii) If the managing underwriter of
the Offering determines that inclusion of all of the
Registrable Securities and other securities in the Offering
requested to be included by the Participating Holders would
adversely affect the marketability of the securities to be
sold in the Offering, the number of Registrable Securities
that may be sold by Participating Holders shall be allocated
pro rata among them based upon the respective number of
Registrable Securities sought by each to be included in the
Offering; and
(iv) If any Participating Holding
desires to withdraw from the Demand Registration Statement,
they may do so only during the time period and on the terms to
be determined by the other Participating Holders who wish to
continue to register their Registrable Securities on such
Demand Registration Statement.
(c) Company's Rights of Postponement.
The Company may delay the registration of the Registrable
Securities to which a Demand Notice relates if upon receipt of such
Demand Notice (i) the Company notifies the Participating Holders
that it is contemplating filing a Registration Statement within 90
days of the date of such Demand Notice (which shall not affect the
Holders' other rights hereunder, including, without limitation, the
Holders' rights under Section 4 below) or (ii) the Company notifies
the Participating Holders that a material event has occurred that
has not been publicly disclosed and disclosure at such time would
not be in the Company's interest. In the case of clause (i) of
this Section 3(c), the Company shall use its reasonable best
efforts, as soon as practicable, upon the first to occur of the
abandonment of such contemplated Registration Statement or the
completion of the offering made pursuant to such Registration
Statement, to register the Registrable Securities to which such
Demand Notice relates, unless such Demand Notice is withdrawn or
such Registrable Securities are included in a Piggyback
Registration Statement under Section 4 below. In the case of
clause (ii) of this Section 3(c), the Company may not delay the
filing of the Demand Registration Statement for more than 60 days
from the date of such Demand Notice unless such Demand Notice is
withdrawn. The Company cannot exercise the rights of postponement
set forth above more than once in any 12- month period. If there
is a postponement under either clause (i) or (ii) above, the Demand
Notice shall be deemed to have been withdrawn. In such case, no
demand shall have been made for the purposes of this Section 3.
4. "PIGGYBACK" REGISTRATION.
If at any time, or from time to time, the Company shall
determine or be required pursuant to Section 3 or otherwise to file
a Registration Statement with regard to Common Units or other
equity securities of the Company for its own account or for the
account of any partner of the Company or other holder of
registration rights with respect to the Company's securities (other
than a Registration Statement on (a) Form S-8, (b) Form S-4
covering solely securities issued in connection with a business
combination or other transaction specified in Rule 145(a) under the
Securities Act, or (c) Form S-3 covering solely securities issued
under a dividend reinvestment program), the Holders of Registrable
Securities shall be entitled to include Registrable Securities in
such Registration Statement (a "PIGGYBACK REGISTRATION STATEMENT")
and related Offering, if any, on the following terms and
conditions:
(a) Right to Request Piggyback Registration.
The Company shall promptly give written notice (a "PIGGYBACK
NOTICE") of such determination to the Holders other than
Holders who are Participating Holders in connection with a Demand
Registration Statement under Section 3. Each Holder shall have the
right to request, by written notice given to the Company within 15
days of the date the Piggyback Notice was received by such Holder,
that a specific number of Registrable Securities held by such
Holder be included in the Piggyback Registration Statement and
related Offering, if any;
(b) Piggyback Notice. If the Piggyback Registration
Statement relates to an underwritten Offering, the Piggyback
Notice shall specify the name of the managing underwriter
for such Offering. The Piggyback Notice shall also specify the
number of securities to be registered for the account of the
Company, for the account of Participating Holders under Section 3
and for the account of any other partner of the Company or other
holder of registration rights;
(c) Agreement to Sell on Same Basis. If the
Piggyback Registration Statement relates to an underwritten
Offering, each Holder who has given notice to the Company under
Section 4(a) must agree to sell such Holder's Registrable
Securities on the same basis provided in the underwriting
arrangements approved by the Company and to timely complete and
execute all questionnaires, powers of attorney, indemnities, hold-
back agreements, underwriting agreements and other documents
required under the terms of such underwriting arrangements or by
the SEC;
(d) Priority. If the managing underwriter for
any underwritten Offering under the Piggyback Registration
Statement determines that inclusion of all or any portion
of the Registrable Securities in such Offering would adversely
affect the ability of the underwriter for such Offering
to sell all of the securities requested to be included for sale in
such Offering, the number of securities that may be sold in such
Offering shall be allocated first to the Company (or, if the
Offering is being made pursuant to a Demand Registration Statement
under Section 3, to the Participating Holders as provided therein)
and thereafter pro rata among the Holders who have given notice to
the Company under Section 4(a); provided, however, that if the
Piggyback Registration Statement results from the Company's
exercise of its rights pursuant to clause (i) of Section 3(c), the
number of securities that may be sold in such Offering shall be
allocated first pro rata to the Company and the Holders who have
given notice under Section 4(a) based upon the respective number of
securities sought by each to be included in the Offering; and
(e) Right of Company to Withdraw. Notwithstanding
the foregoing, the Company shall, on five Business Days notice
to the Holders who have given notice under Section 4(a), have
the right to withdraw any Piggyback Registration Statement
filed pursuant to this Section 4 at any time prior to the
effective date thereof.
5. SHELF REGISTRATION.
(a) Initial Shelf Registration. Upon request by
either Bankers, the Noteholders Group or Majority Holders,
the Company shall promptly prepare and file with the SEC
a Registration Statement for an Offering to be made by the Holders
on a continuous basis under the Regulations covering all of the
Registrable Securities (the "INITIAL SHELF REGISTRATION"). The
Initial Shelf Registration shall be on Form S-3 or another
appropriate form permitting registration of such Registrable
Securities for resale by the Holders in the manner or manners
designated in writing to the Company by them (including, without
limitation, one or more underwritten Offerings). The Company shall
use its reasonable best efforts to (i) cause the Initial Shelf
Registration to be declared effective under the Securities Act on
or prior to a date not more than 60 days after the date on which
the Majority Holders initially requested the filing of such Initial
Shelf Registration (but not earlier than 180 days after the Plan
Effective Date) and (ii) keep the Initial Shelf Registration
continuously effective under the Securities Act during the period
(the "EFFECTIVENESS PERIOD") beginning on the date the Initial
Shelf Registration is declared effective and ending on the earliest
to occur of (A) the date when all Registrable Securities have been
sold by the Holders (and the Holders have no reasonable expectation
of receiving any additional Registrable Securities) in the manner
set forth and as contemplated in the Initial Shelf Registration,
any Demand Registration Statement or any Piggyback Registration
Statement, or (B) the date when counsel to the Company shall render
an opinion addressed to the Holders, which opinion shall be
satisfactory in form, scope and substance to each Holder affected
thereby, to the effect that all remaining Registrable Securities
are freely transferable in the open market without limitations as
to volume and without being required to file any forms or reports
with the SEC under the Securities Act or the Regulations.
(b) Subsequent Shelf Registrations. If the Initial
Shelf Registration or any Subsequent Shelf Registration ceases
to be effective for any reason at any time during the
Effectiveness Period, the Company shall use reasonable best efforts
to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within 45 days of
such cessation of effectiveness amend such Initial Shelf
Registration or any Subsequent Shelf Registration in a manner
reasonably expected to obtain the withdrawal of the order
suspending the effectiveness thereof, or file an additional
Registration Statement covering all of the Registrable Securities
(a "SUBSEQUENT SHELF REGISTRATION") for an Offering to be made by
the Holders on a delayed or continuous basis under the Regulations.
If a Subsequent Shelf Registration is filed, the Company shall use
its reasonable best efforts to cause the Subsequent Shelf
Registration to be declared effective as soon as practicable after
such filing and to keep such Subsequent Shelf Registration
Statement continuously effective for the remainder of the
Effectiveness Period.
(c) Supplements and Amendments. The Company shall
supplement and amend the Initial Shelf Registration or any
Subsequent Shelf Registration if required by the Securities
Act or Regulations applicable to the registration form used for
such Initial Shelf Registration or Subsequent Shelf Registration,
or if reasonably requested by the Majority Holders of the
Registrable Securities covered by such Registration Statement or by
any underwriter of such Registrable Securities.
(d) Information Regarding Sales. Each Holder must
promptly notify the Company of all sales made pursuant
to the Initial Shelf Registration or any Subsequent Shelf
Registration.
6. HOLD-BACK AGREEMENTS.
(a) Restrictions on Public Sale by the Company.
The Company agrees not to effect any public or private
sale or distribution of securities of the same class as the
Registrable Securities, or convertible into or exchangeable or
exercisable for securities of the same class as the Registrable
Securities, including a sale pursuant to Regulation D under the
Securities Act, during the 10-day period prior to, and during the
180-day period following the commencement of any offering made
pursuant to Section 3 hereof; provided, however, that the Company
may issue securities pursuant to a Registration Statement on Form
S-8 or pursuant to a dividend reinvestment plan registered on Form
S-3 if such registration statements have become effective not less
than 30 days before the commencement of the offering made pursuant
to Section 3.
(b) Restrictions on Public Sale by Holders of
Restricted Securities.
(i) Each Holder of Registrable Securities, whose
Registrable Securities are covered by a Registration
Statement filed pursuant to this Agreement for sale in
an underwritten Offering, agrees, if requested by the
managing underwriter of such Offering, not to effect any
public sale or distribution of securities of the same class
(or securities exchangeable or exercisable for or convertible
into securities of the same class) as the Registrable
Securities included in such Registration Statement, including
a sale pursuant to Rule 144 or Rule 144A of the Securities Act
(except as part of such underwritten Offering), during the
10-day period prior to, and during the 180-day period (or
shorter period requested by the underwriter) following the
commencement of, such Offering, to the extent timely notified
in writing by the Company or the managing underwriter.
(ii) In the event that (x) the Company files a
registration statement prepared in accordance with the
requirements of the Securities Act and the Regulations
for an underwritten Offering of Common Units or other equity
securities of the Company, (y) each Holder of Registrable
Securities is able to include all of such Holder's Registrable
Securities in such registration statement and such Offering
pursuant to Section 4 hereof and (z) any Holder elects to
include none of such Holder's Registrable Securities in such
registration statement and such Offering pursuant to Section
4 hereof (a "NONPARTICIPATING HOLDER"), then if requested
by the managing underwriter of such Offering, each
Nonparticipating Holding shall agree not to effect any public
sale or distribution of Registrable Securities of the same
class (or Registrable Securities exchangeable or exercisable
for or convertible into securities of the same class) as the
securities included in such registration statement, including
a sale pursuant to Rule 144 or Rule 144A of the Securities
Act, during the 10-day period prior to, and during the 180-day
period (or shorter period requested by the underwriter)
following the commencement of, such Offering, to the extent
timely notified in writing by the Company or the managing
underwriter.
7. REGISTRATION PROCEDURES.
In connection with the registration of any Registrable
Securities and any Registration Statement prepared pursuant to the
provisions of this Agreement, the Company shall effect such
registrations to permit the sale of such Registrable Securities in
accordance with the intended method or methods of disposition by
the Holders thereof, and pursuant thereto the Company shall:
(a) Filing of Registration Statement. Prepare
and file with the SEC all such Registration Statements and
use its best efforts to cause such Registration Statements to
become effective and remain effective as provided herein; provided,
that before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Company shall furnish to and
afford the Holders of the Registrable Securities covered by such
Registration Statement, and the managing underwriters, if any, a
reasonable opportunity to review and comment on copies of all such
documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed.
(b) Filing of Amendments, etc. Subject to Section
7(a) hereof, prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement as may
be necessary to keep such Registration Statement effective for
any applicable time period required herein; cause the related
Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) of the
Regulations; and comply with the provisions of the Securities
Act, the Exchange Act and the rules and regulations of the
SEC promulgated thereunder applicable to it with respect to
the disposition of all securities covered by such Registration
Statement as so amended or by such Prospectus as so supplemented.
(c) Required Notices. Notify the selling Holders
of Registrable Securities, and the managing underwriters,
if any, promptly, and confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective amendment
has been filed, and, with respect to a Registration Statement or
any post-effective amendment, when the same has become effective
(including in such notice a written statement that any Holder may,
upon request, obtain, without charge, one conformed copy of such
Registration Statement or post-effective amendment, including
financial statements and schedules, documents incorporated or
deemed to be incorporated by reference and exhibits), (ii) of the
issuance by the SEC of any stop order suspending the effectiveness
of a Registration Statement or of any order preventing or
suspending the use of any Preliminary Prospectus or the initiation
of any proceedings for that purpose, (iii) if, at any time when a
Prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Securities, the
representations and warranties of the Company contained in any
agreement (including any underwriting agreement) contemplated by
Section 7(m) below cease to be true and correct, (iv) of the
receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of
a Registration Statement or any of the Registrable Securities for
offer or sale in any jurisdiction, or the initiation or threatening
of any proceeding for such purpose, (v) of the happening of any
event or any information becoming known that makes any statement
made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the
making of any changes in such Registration Statement, Prospectus or
documents so that, in the case of the Registration Statement, it
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and, in the case of
the Prospectus, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading, and (vi) of the Company's reasonable determination that
a post-effective amendment to a Registration Statement would be
appropriate.
(d) Prevention of Orders and Correction of Disclosure.
Use its best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or
of any order preventing or suspending the use of a Prospectus or
suspending the qualification (or exemption from qualification) of
any of the Registrable Securities for sales in any jurisdiction,
and, if any such order is issued, to use its reasonable best
efforts to obtain the withdrawal of any such order at the earliest
possible moment. Upon the happening of any of the events
contemplated by Section 7(c)(v) hereof, promptly prepare an amended
or supplemented Prospectus, or file an appropriate document to be
incorporated by reference in the Prospectus, which will correct
such statement or omission.
(e) Incorporation of Information; Required Filings.
If the Registrable Securities are to be sold in an underwritten
offering, (i) as soon as is reasonably practicable, incorporate
in a Prospectus supplement or post-effective amendment
to the Registration Statement such information as is required by
the Securities Act, Regulation S-K of the Regulations and the
rules, regulations and instructions applicable to the registration
form used for such Registration Statement to be disclosed
concerning, among other things, the terms of the underwritten
offering, the underwriters and the plan of distribution, and (ii)
make all required filings of such Prospectus supplement or such
post-effective amendment as soon as practicable.
(f) Delivery of Copy of Registration Statement.
Furnish to each selling Holder of Registrable Securities who
so requests and each managing underwriter, if any, without
charge, one conformed copy of the Registration Statement
and each post-effective amendment thereto, including financial
statements and schedules, all documents incorporated or deemed to
be incorporated therein by reference and all exhibits.
(g) Delivery of Copies of Prospectus. Deliver
to each selling Holder of Registrable Securities, and the
underwriters, if any, without charge, as many copies of the
Prospectus or Prospectuses (including each form of Preliminary
Prospectus) and each amendment or supplement thereto and any
documents incorporated or deemed to be incorporated by reference
therein as such Holder may reasonably request; and, subject to the
last paragraph of this Section 7, the Company hereby consents to
the use of such Prospectus and each amendment or supplement thereto
by each of the selling holders of Registrable Securities and the
underwriters or agents, if any, and dealers, if any, in connection
with the offering and sale of the Registrable Securities covered by
such Prospectus and any amendment or supplement thereto.
(h) Blue Sky Laws. Use its reasonable best efforts
to register or qualify, and to cooperate with the selling
Holders of Registrable Securities, the underwriters, if any,
and their respective counsel in connection with the registration
or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale
under the securities or blue sky laws of such jurisdictions within
the United States as any selling Holder, or the managing
underwriters, if any, reasonably request in writing; keep each such
registration or qualification (or exemption therefrom) effective
during the period such Registration Statement is required to be
kept effective and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the
applicable Registration Statement; provided, that the Company shall
not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or (ii) take any
action that would subject it to general service of process or the
payment of taxes in any such jurisdiction where it is not then so
subject.
(i) Certificates. Cooperate with the selling
Holders of Registrable Securities and the managing underwriters,
if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold,
which certificates shall not bear any restrictive legends and
shall be in a form eligible for deposit with The Depository Trust
Company; and enable such Registrable Securities to be in such
denominations and registered in such names as the managing
underwriters, if any, or holders may reasonably request.
(j) Other Registrations or Approvals. Use its
reasonable best efforts to cause the Registrable Securities
covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may
be necessary to enable the selling Holders thereof or the
underwriters, if any, to consummate the disposition of such
Registrable Securities, except as may be required solely as a
consequence of the nature of such selling Holder's business, in
which case the Company will cooperate in all reasonable respects
with the filing of such Registration Statement and the granting of
such approvals.
(k) Supplements and Amendments. Upon the occurrence
of any event contemplated by Sections 7(c)(v) or (c)(vi) above,
as promptly as practicable prepare and (subject to Section 7(a)
above) file with the SEC a supplement or post-effective
amendment to the Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be
incorporated therein by reference, or file any other required
document so that, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, such Prospectus will
not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading.
(l) Listing on Exchanges. Use its reasonable best
efforts to cause all Registrable Securities covered by such
Registration Statement to be (i) listed on each securities
exchange, if any, on which similar securities issued by the
Company are then listed, or (ii) authorized to be quoted on
the National Association of Securities Dealers Automated
Quotation System ("NASDAQ") or the NASDAQ National Market
if similar securities of the Company are so authorized.
(m) Underwritten Offerings. In connection with
an underwritten offering of Registrable Securities, enter
into an underwriting agreement as is customary in underwritten
offerings made by selling security holders and take all
such other actions as are reasonably requested by the managing
underwriters in order to expedite or facilitate the registration
or the disposition of such Registrable Securities, and in such
connection, (i) make such representations and warranties to the
underwriters with respect to the business of the Company and its
subsidiaries, and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, as are customarily made by issuers
to underwriters in underwritten offerings made by selling security
holders, and confirm the same if and when requested; (ii) obtain
opinions of counsel to the Company and updates thereof (which
counsel and opinions shall be reasonably satisfactory to the
managing underwriters), addressed to the underwriters covering the
matters customarily covered in opinions requested in underwritten
offerings by selling security holders; (iii) obtain "cold comfort"
letters and updates thereof (which letters and updates shall be
reasonably satisfactory to the managing underwriters) from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of
any subsidiary of the Company or of any business acquired by the
Company for which financial statements and financial data are, or
are required to be, included in the Registration Statement),
addressed to each of the underwriters and the holders of
Registrable Securities included in such underwritten offering (if
such accountants are permitted under applicable law and accounting
literature to so address "cold comfort" letters), such letters to
be in customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with underwritten
offerings by selling security holders; and (iv) if an underwriting
agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable than those set forth in
Section 9 hereof (or such other provisions and procedures
acceptable to the Majority Holders of Registrable Securities
covered by such Registration Statement and the managing
underwriters or agents) with respect to all parties to be
indemnified pursuant to Section 9. The above shall be done at each
closing under each such underwriting agreement, or as and to the
extent required thereunder.
(n) Inspection. Make available for inspection by
any selling Holder of such Registrable Securities being sold,
any underwriter participating in any such disposition of
Registrable Securities, if any, and any attorney, accountant or
other agent retained by any such selling Holder or underwriter
(collectively, the "INSPECTORS"), at the offices where normally
kept, during reasonable business hours, all financial and other
records, pertinent corporate documents and properties of the
Company and its subsidiaries (collectively, the "RECORDS") as shall
be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the officers, directors and
employees of the Company and its subsidiaries to supply all
information in each case reasonably requested by any such
Inspectors in connection with such Registration Statement. Records
which the Company determines, in good faith, to be confidential and
any Records which it notifies the Inspectors are confidential shall
not be disclosed by the Inspectors unless (i) the disclosure of
such Records is necessary to avoid or correct a misstatement or
omission in such Registration Statement, (ii) the release of such
Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction or (iii) the information in such
Records has been made generally available to the public. Each
selling holder of such Registrable Securities agrees that
information obtained by it as a result of such inspections shall be
deemed confidential and shall not be used by it as the basis for
any market transactions in the securities of the Company or its
affiliates unless and until such is made generally available to the
public. Each selling Holder of such Registrable Securities further
agrees that it will, upon learning that disclosure of such Records
is sought in a court of competent jurisdiction, give notice to the
Company and allow the Company at its expense to undertake
appropriate action to prevent disclosure of the Records deemed
confidential.
(o) Earnings Statements. Comply with all applicable
rules and regulations of the SEC and make generally available
to security holders of the Company earnings statements
satisfying the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 30 days after the end of any 12-month
period (or 60 days after the end of any 12-month period if such
period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Registrable Securities are sold to underwriters in
a firm commitment or best efforts underwritten Offering and (ii) if
not sold to underwriters in such an Offering, commencing on the
first day of the first fiscal quarter of the Company after the
effective date of a Registration Statement, which statements shall
cover such 12-month periods.
(p) Cooperation. Cooperate with each Holder selling
Registrable Securities covered by any Registration Statement and
each underwriter, if any, participating in the disposition of
such Registrable Securities and their respective counsel in
connection with any filings required to be made with the
National Association of Securities Dealers, Inc. (the "NASD").
(q) Other. Use its reasonable best efforts to take
all other steps reasonably necessary to effect the registration
of the Registrable Securities covered by a Registration
Statement contemplated hereby.
Each Holder of Registrable Securities agrees by
acquisition of such Registrable Securities that, upon receipt of
any notice from the Company of the happening of any event of the
kind described in clauses (ii), (iv), (v), or (vi) of Section 7(c),
such Holder will forthwith discontinue disposition of such
Registrable Securities covered by such Registration Statement or
Prospectus until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 7(k), or
until it is advised in writing by the Company that the use of the
applicable Prospectus may be resumed, and has received copies of
any amendments or supplements thereto.
8. REGISTRATION EXPENSES.
All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the
Company whether or not any Registration Statement is filed or
becomes effective, including, without limitation, (a) all
registration and filing fees, including, without limitation, (i)
fees with respect to filings required to be made with the NASD in
connection with an underwritten offering and (ii) fees and expenses
of compliance with state securities or blue sky laws, including,
without limitation, reasonable fees and disbursements of counsel
for the Company or the underwriters, or both, in connection with
blue sky qualifications of the Registrable Securities, (b) printing
expenses, including, without limitation, expenses of printing
certificates for Registrable Securities in a form eligible for
deposit with The Depository Trust Company, printing prospectuses,
and printing or preparing any underwriting agreement, agreement
among underwriters and related syndicate or selling group
agreements, pricing agreements and blue sky memoranda, (c) fees
and disbursements of counsel for the Company, (d) fees and
disbursements of all independent certified public accountants for
the Company, including, without limitation, the expenses of any
"cold comfort" letters required by or incident to such performance,
(e) fees and expenses of any "qualified independent underwriter" or
other independent appraiser participating in an offering pursuant
to Rule 2720 of the Rules of the NASD if, and only if, such expense
will be incurred because of the Company's selection of a managing
underwriter, (f) the cost of Securities Act liability insurance, if
the Company so desires such insurance, (g) internal expenses of the
Company, including, without limitation, all salaries and expenses
of officers and employees of the Company performing legal or
accounting duties, (h) fees and expenses incurred in connection
with the listing of the securities to be registered on any
securities exchange, and (i) fees and expenses of any Person,
including special experts, retained by the Company in its sole
discretion.
9. INDEMNIFICATION.
(a) Indemnification by the Company. The Company shall,
without limitation as to time, indemnify and hold harmless, to
the fullest extent permitted by law, each Holder of Registrable
Securities, and any underwriter participating in the distribution,
each of their respective officers, directors and agents and
employees, each Person who controls each such Holder or any
such underwriter (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) and the officers,
directors, agents and employees of each such controlling person
(individually, an "INDEMNIFIED PERSON") from and against any and
all losses, claims, damages, liabilities, costs (including, without
limitation, costs of investigating, preparing to defend, defending
and appearing as a third-party witness and attorneys' fees and
disbursements) and expenses, including any amounts paid in respect
of any settlements (collectively, "LOSSES"), joint or several,
without duplication, as incurred, arising out of or based upon any
untrue or alleged untrue statement of a material fact contained in
any Registration Statement, Prospectus or form of prospectus, or in
any amendment or supplements thereto or in any Preliminary
Prospectus, or arising out of or based upon, in the case of the
Registration Statement or any amendments thereto, any omission or
alleged omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading, and, in
the case of any Prospectus or form of prospectus, or in any
amendments or supplements thereto, or in any preliminary
prospectus, any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading except, in either case, to the extent, but
only to the extent, that such untrue or alleged untrue statement or
omission or alleged omission has been made therein in reliance upon
and in conformity with information furnished in writing to the
Company by such Indemnified Person expressly for use therein.
(b) Indemnification by Holder of Registrable Securities.
In connection with any Registration Statement in which a Holder
of Registrable Securities is participating, such Holder of
Registrable Securities shall furnish to the Company in writing
such information as the Company reasonably requests for use
in connection with any Registration Statement or Prospectus,
and shall, without limitation as to time, indemnify and hold
harmless, to the fullest extent permitted by law, the Company,
any underwriter participating in the distribution and their
respective directors, officers, agents and employees, each
Person who controls the Company or any such underwriter (within
the meaning of Section 15 of the Securities Act and Section 20
of the Exchange Act), and the directors, officers, agents or
employees of such controlling person, from and against any and all
Losses, joint or several, without duplication, as incurred, arising
out of or based upon any untrue or alleged untrue statement of a
material fact contained in any Registration Statement, Prospectus,
or form of prospectus, or in any amendment or supplement thereto or
in any Preliminary Prospectus, or arising out of or based upon, in
the case of the Registration Statement or any amendments thereto,
any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and, in the case of the Prospectus or form of
Prospectus, or in any amendments or supplements thereto, or in any
Preliminary Prospectus, any omission or alleged omission of a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading, in either case, to the
extent, but only to the extent, that such untrue or alleged untrue
statement or omission or alleged omission has been made therein in
reliance upon and in conformity with information furnished in
writing to the Company by such Holder expressly for use therein.
In no event shall the liability of any selling Holder of
Registrable Securities hereunder be, or be claimed by the Company
to be, greater in amount than the dollar amount of the proceeds
actually received by such Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any
Person shall be entitled to indemnity hereunder (an
"indemnified party), such indemnified party shall give prompt
notice to the party or parties from which such indemnity is
sought (the "indemnifying parties") of the commencement of
any action or proceeding (including any governmental
investigation) (collectively, "PROCEEDINGS" and individually,
a "PROCEEDING") with respect to which such indemnified party
seeks indemnification or contribution pursuant hereto;
provided, that the failure to so notify the indemnifying
parties shall not relieve the indemnifying parties from any
obligation or liability except to the extent that an indemnifying
party was not otherwise aware of such Proceeding and the
indemnifying parties have been materially prejudiced by such
failure. The indemnifying parties shall have the right,
exercisable by giving written notice to an indemnified party
promptly after the receipt of written notice from such indemnified
party of such Proceeding, to assume, at the indemnifying parties'
expense, the defense of any such Proceeding, with counsel
reasonably satisfactory to such indemnified party and shall pay as
incurred the fees and disbursements of such counsel related to such
Proceeding; provided further, that an indemnified party or parties
(if more than one such indemnified party is named in any
Proceeding) shall have the right to employ separate counsel in any
such Proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless: (i) the indemnifying party or
parties agree to pay such fees and expenses; or (ii) the
indemnifying parties fail promptly to assume the defense of such
Proceeding or fail to employ counsel reasonably satisfactory to
such indemnified party or parties; or (iii) in the reasonable
judgment of the indemnified party or parties, a conflict of
interest may exist between the positions of the indemnifying party
or an affiliate of the indemnifying party and such indemnified
party or parties in conducting the defense of such action or
proceeding or that there may be legal defenses available to such
indemnified party or parties different from or in addition to those
available to the indemnifying party or such affiliate, in which
case, if such indemnified party or parties notifies the
indemnifying parties in writing that it elects to employ separate
counsel at the expense of the indemnifying parties, the
indemnifying parties shall not have the right to assume the defense
thereof and such counsel shall be at the expense of the
indemnifying parties, it being understood, however, that the
indemnifying parties shall not, in connection with any one such
Proceeding or separate but substantially similar or related
Proceedings in the same jurisdiction, arising out of the same
general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for such
indemnified party or parties. Whether or not such defense is
assumed by the indemnifying parties, such indemnifying parties or
indemnified party or parties will not be subject to any liability
for any settlement made without its or their consent (but such
consent will not be unreasonably withheld). No indemnifying party
shall be liable for any settlement of any such action or proceeding
effected without its written consent, but if settled with its
written consent each indemnifying party jointly and severally
agrees, subject to the exception and limitations set forth above,
to indemnify and hold harmless each indemnified party from and
against any loss or liability by reason of such settlement.
(d) Contribution. If the indemnification provided
for in this Section 9 is unavailable to an indemnified party
or is insufficient to hold such indemnified party harmless
for any Losses in respect to which this Section 9 would otherwise
apply by its terms, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have an
obligation to contribute to the amount paid or payable by such
indemnified party as a result of such Losses, in such proportion as
is appropriate to reflect the relative fault of the indemnifying
party, on the one hand, and such indemnified party, on the other
hand, in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable
considerations. Where the indemnified party is an underwriter
participating in the distribution of Registrable Securities,
however, each indemnifying party, and, in addition, if the
indemnifying party is a Holder, the Company, shall have an
obligation to contribute to the amount paid or payable by such
indemnified party as the result of such Losses in such proportion
as is appropriate to reflect not only (i) the relative fault of the
Company, the Holders and the underwriters in connection with the
actions, statements or omissions that resulted in such Losses, as
well as any other relevant equitable considerations, but also (ii)
the relative benefits received by the Holders on the one hand and
the underwriters on the other hand from the distribution of the
Registrable Securities. The relative benefits received by the
Holders, on the one hand, and the underwriters, on the other hand,
shall be deemed to be in the same proportion as the total net
proceeds from any such offering (before deducting expenses)
received by the Holders bear to the total underwriting discounts or
commissions received by the underwriters. The relative fault of
such indemnifying party, on the one hand, and indemnified party, on
the other hand, shall be determined by reference to, among other
things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been taken by, or relates to
information supplied by, such indemnifying party or indemnified
party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent any such action,
statement or omission. The amount paid or payable by a party as a
result of any Losses shall be deemed to include any legal or other
fees or expenses incurred by such party in connection with any
Proceeding, to the extent such party would have been indemnified
for such expenses if the indemnification provided for in Sections
9(a) or 9(b) were available to such party.
(e) Limit on Contribution. The parties hereto agree
that it would not be just and equitable if contribution pursuant
to Section 9(d) were determined by pro rata allocation or by
any other method of allocation that does not take account of
the equitable considerations referred to in the immediately
preceding paragraph. Notwithstanding the provisions of
Section 9(d), an indemnifying party that is a selling Holder of
Registrable Securities shall not be required to contribute any
amount in excess of the amount by which the total price at which
the Registrable Securities sold by such indemnifying party and
distributed to the public were offered to the public (net of any
underwriting discounts and commissions and expenses) exceeds the
amount of any damages that such indemnifying party has otherwise
been required to pay or has paid by reason of such untrue or
alleged untrue statement or omission or alleged omission. No
Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
(f) Remedies Cumulative. The indemnity, contribution
and expense reimbursement obligations under this Section 9
shall be in addition to any liability each indemnifying person
may otherwise have and shall remain operative and in full force
and effect regardless of any investigation made by or on behalf
of any indemnified party.
(g) Underwriting Agreement Controls. In the event
of any conflict between the indemnification and contribution
terms as herein set forth and as set forth in any underwriting
agreement entered pursuant hereto, the underwriting agreement
shall control.
10. SELECTION OF UNDERWRITERS.
(a) Selection by Majority Holders. If any of the
Registrable Securities covered by any Registration Statement
(other than a Piggyback Registration Statement) are to be
sold in an underwritten offering, the investment banker or
investment bankers and manager or managers that will manage the
offering will be selected by the Majority Holders.
(b) Selection by the Company. If any of the
Registrable Securities covered by a Piggyback Registration
Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers
that will manage the offering will be selected by the Company.
(c) Agreement to Comply. No Holder of Registrable
Securities may participate in any underwritten registration
hereunder unless such Holder (i) agrees to sell such Holder's
Registrable Securities on the basis provided in any
underwriting arrangements approved by the Majority Holders, and
(ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements, custodial or escrow
agreements and other documents required under the terms of such
underwriting arrangements.
11. INCORPORATION, MERGER, ETC.
In the event that the Company (a) incorporates, becomes
a limited liability company or otherwise changes its form of
business entity, (b) consolidates with or merges with any other
Person, (c) sells, conveys, transfers, leases or otherwise disposes
of all or substantially all of its assets (whether now owned or
hereafter acquired) in a single transaction or series of
transactions to any Person, the Company shall cause any such Person
or other successor to the Company to agree in writing to be bound
by all the provisions of this Agreement.
12. OTHER REGISTRATION RIGHTS.
The Company represents that it has not granted
registration rights other than as set forth in this Agreement and
covenants that it will not grant any other registration rights for
so long as any Registrable Securities are outstanding, except that
the Company may grant (a) "piggyback" registration rights that
entitle the holder to include Common Units in an Offering only
after all the Holders have included in such Offering all
Registrable Securities they elect to include under Sections 3 and
4 hereof and (b) "demand" registration rights to Persons who
hereinafter purchase Equivalent Units provided such rights may not
be exercised if any Holder elects to exercise its rights under
Section 3 hereof (provided such election is made within 15 days
after notice is given to all the Holders that another holder of
"demand" registration rights desires to exercise them).
13. MISCELLANEOUS.
(a) Damages. Without limiting in any way any of
the rights the Holders of the Restricted Securities may
otherwise have at law or in equity, for damages or otherwise, the
Company hereby agrees to indemnify and hold harmless each Holder of
Restricted Securities from and against any loss or expense that may
be incurred or suffered by such Holder which arises from any of the
following: (i) any Demand Registration Statement that is not filed
with the Commission on or before the time required in Section 3, or
(ii) the Company is not able for any reason within its control to
cause the Demand Registration Statement to be declared effective by
the SEC at the time reasonably requested by the underwriters in the
Offering and to remain effective until completion of the Offering,
or to cause the Registrable Securities to be qualified or
registered for sale in all appropriate jurisdictions as provided in
Section 7(h) and to remain so qualified or registered thereafter
during the applicable period under applicable law.
(b) Specific Performance. In the event of a breach
by the Company of any of its obligations under this Agreement,
each Holder of Registrable Securities, in addition to being
entitled to exercise all rights provided herein or granted by
law, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company and
each Holder agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by the
Company or such Holder, as the case may be, of any of the
provisions of this Agreement and hereby further agrees that, in the
event of any action for specific performance in respect of such
breach, the Company or such Holder, as the case may be, shall waive
the defense that a remedy at law would be adequate. No failure or
delay on the part of the Company or any Holder of Registrable
Securities in exercising any right, power or remedy hereunder
shall operate as a waiver thereof nor shall any single or partial
exercise of any such right, power or remedy preclude any other or
further exercise thereof or the exercise of any other right, power
or remedy.
(c) No Inconsistent Agreements. The Company has not
previously entered into, and will not on or after the date of
this Agreement enter into, any agreement with respect to its
Securities that is inconsistent with the terms of this
Agreement, including any agreement which impairs or limits the
registration rights granted to the Holders or which otherwise
conflicts with the provisions hereof or would preclude the Company
from discharging its obligations hereunder.
(d) Amendments and Waivers. The provisions of
Section 6, Section 8, Section 9 hereof and this sentence may
not be amended, modified or supplemented without the express
written consent of each party hereto. The other provisions
of this Agreement, including the provisions of this sentence, may
not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, unless
the Company has obtained the written consent of the Majority
Holders of the then outstanding Registrable Securities.
Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders of Registrable Securities
whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect, impair,
limit or compromise the rights of other Holders of Registrable
Securities may be given by Holders of at least a majority of the
Registrable Securities being sold by Holders pursuant to such
Registration Statement; provided, that the provisions of this
sentence may not be amended, modified or supplemented except in
accordance with the provisions of the immediately preceding
sentence.
(e) Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if
delivered personally, telecopied (which is confirmed) or mailed
by registered or certified mail (return receipt requested) to
the parties at the addresses set forth below the name of each
party hereto on the signature pages hereof (or at such other
address for a party as shall be specified by like notice)
(f) Interpretation. When a reference is made in
this Agreement to a Section, such reference shall be to a
Section of this Agreement unless otherwise indicated. The headings
contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this
Agreement. Whenever the words "include," "includes" or "including"
are used in this Agreement, they shall be deemed to be followed by
the words "without limitation." For purposes of this Agreement,
"best efforts" shall mean the lawful efforts that a prudent
business person desirous of achieving a result would use under
similar circumstances to attempt to achieve such result as
expeditiously as is reasonably practicable.
(g) Counterparts. This Agreement may be executed in
two or more counterparts, all of which shall be considered one
and the same agreement and shall become effective when two or
more counterparts have been signed by each of the parties and
delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
(h) Entire Agreement; No Third Party Beneficiaries.
This Agreement (including the documents and the instruments
referred to herein) (i) constitutes the entire agreement and
supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject
matter hereof, and (ii) except as contemplated by Section 9
hereof, is not intended to confer upon any Person other than
the parties hereto any rights or remedies hereunder.
(i) Governing Law. This Agreement shall be governed
and construed in accordance with the laws of the State of
California, without regard to principles of conflicts of law.
(j) Severability. Wherever possible, each provision
hereof shall be interpreted in such a manner as to be valid,
legal and enforceable under applicable law, but in case any
one or more of the provisions contained herein shall, for any
reason, be held to be invalid, illegal or unenforceable in any
respect, such provision shall be ineffective to the extent, but
only to the extent, of such invalidity, illegality or
unenforceability without invalidating or rendering unenforceable
the remainder of this Agreement, unless such a construction would
be unreasonable or materially impair the rights of any party
hereto.
(k) Assignment. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned
by the Company (whether by operation of law or otherwise)
except in accordance with Section 11 hereof or with the prior
written consent of the other parties hereto. Subject to the
preceding sentence, this Agreement will be binding upon, inure to
the benefit of and be enforceable by the parties hereto and their
respective successors and assigns.
(l) Attorneys' Fees. As between the parties to
this Agreement, in any action or proceeding brought to
enforce any provision of this Agreement, or where any provision
hereof is validly asserted as a defense, the successful party shall
be entitled to recover reasonable attorneys' fees in addition to
its costs and expenses and any other available remedy.
(m) Securities Held by the Company or Its Affiliates.
Whenever the percentage of Registrable Securities held by
Holders is required to be determined hereunder for purposes of
determining the authority of such Holders to take actions
hereunder, Registrable Securities held by the Company or its
affiliates (as such term is defined in Rule 405 under the
Regulations) (other than the Holders of Registrable Securities if
such Holders are deemed to be such affiliates solely by reason of
their holdings of such Registrable Securities) shall not be counted
in determining the percentage of Registrable Securities held by
such Holders.
(n) Use of Terms. This Agreement contemplates the
filing of registration statements under the Securities Act on
numerous occasions involving various offers of securities. In
connection with such registration statements, there may be
identified therein one or more underwriters through which
securities are to be offered on behalf of the Company or one
or more of the Holders, or both, pursuant to either a
"firm-commitment" or "best-efforts" arrangement, and, in the case
where there is more than one underwriter, one or more of the
underwriters may be designated as the "manager" or "representative"
or the "co-managers" or "representatives" of the several
underwriters. Accordingly, all references herein to an
"underwriter" or the "underwriters" are intended to refer to a
"principal underwriter" (as defined in Rule 405 of the Regulations)
and to provide for those transactions in which securities may be
offered by or through one or more underwriters, and not to imply
that any of the transactions contemplated hereby is conditioned in
any manner whatsoever on the participation therein by one or more
underwriters on behalf of any party. Nothing contained herein
relating to the Company's obligation to enter into an underwriting
agreement at any time or from time to time in the future shall
impair, alter, restrict or otherwise affect in any manner
whatsoever the duties of the Board of Directors of the managing
general partner Company under applicable law in approving the form,
terms and provisions thereof.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
HUNTWAY PARTNERS, L.P.
By: /s/ Warren J. Nelson
Name: Warren J. Nelson
Title: Executive Vice President and
Chief Financial Officer
Notice Address:
Warren Nelson
Huntway Partners, L.P.
25129 The Old Road, Suite 322
Newhall, CA 91381
BANKERS TRUST COMPANY
By: /s/ Carl O. Roark
Name: Carl O. Roark
Title: Managing Director
Notice Address:
Carl Roark
Bankers Trust Company
One Bankers Trust Plaza
Mail Stop 2283
130 Liberty Street, 28th Floor
New York, New York 10066
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By: /s/ Michael L. Klofas
Name: Michael L. Klofas
Title: Managing Director
Notice Address:
Mike Klofas
Mass Mutual Life Insurance Company
1295 State Street
Springfield, MA 01111
MELLON BANK, N.A., as trustee for
First Plaza Group Trust
By: /s/ Laura A. Adams
Name: Laura A. Adams
Title: Trust Officer
Notice Address:
c/o John R. Bauer
Managing Partner
Contrarian Capital Management, L.L.C.
411 West Putnam, Suite 225
Greenwich, Connecticut 06830
OPPENHEIMER & COMPANY, INC., for
itself and as agent for certain
affiliates
By: /s/ John Bauer
Name: John Bauer
Title: Managing Partner
Notice Address:
c/o John R. Bauer
Managing Partner
Contrarian Capital Management, L.L.C.
411 West Putnam, Suite 225
Greenwich, Connecticut 06830
LINDNER GROWTH FUND
By: RYBACK MANAGEMENT CORPORATION
By: /s/ Larry Callahan
Name: Larry Callahan
Title: Vice President
Notice Address:
c/o Larry Callahan
Ryback Management Corporation
7711 Carondelet Avenue, Suite 700
St. Louis, Misouri 63105
FIRST CHICAGO EQUITY CORPORATION
By: /s/ William J. Roberts
Name: William J. Roberts
Title: Vice President and Director
Notice Address:
Sam Mencoff
First Chicago Equity Corporation
Three First National Plaza,
suite 1300
Chicago, Illinois, 606021
MADISON DEARBORN PARTNERS III
By: /s/ Justin S. Huscher
Name: Justin S. Huscher
Title: General Partner
Notice Address:
Sam Mencoff
Madison Dearborn Partners III
Three First National Plaza,
suite 1300
Chicago, Illinois, 606021
