<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
FORM T-3
FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES UNDER
THE TRUST INDENTURE ACT OF 1939
Huntway Partners, L.P.
(Name of applicant)
25129 The Old Road
Newhall, California 91381
(Address of principal executive offices)
SECURITIES TO BE ISSUED UNDER THE INDENTURE TO BE QUALIFIED
TITLE OF CLASS AMOUNT
Junior Subordinated Notes Due 2005 $2,070,000
Approximate date of proposed public offering: December 23, 1996
Name and address of agent for service: Warren J. Nelson
Huntway Partners, L.P.
25129 The Old Road
Newhall, CA 91381
-with a copy to-
Alan G. Berkshire
Kirkland & Ellis
200 East Randolph Drive
Chicago, IL 60601
<PAGE> 2
GENERAL
1. General Information. Furnish the following as to the
applicant:
(a) Form of organization.
The applicant, Huntway Partners, L.P. (the
"Company"), is a limited partnership.
(b) State or other sovereign power under the laws of
which organized.
The Company is organized under the laws of the State
of Delaware.
2. Securities Act exemption available. State briefly the facts
relied upon by the applicant as a basis for the claim that registration of the
indenture securities under the Securities Act of 1933 is not required.
The indenture securities are exempt from registration under the
Securities Act of 1933, as amended ("Securities Act"), by virtue of Section
1145(a)(1) of the United States Bankruptcy Code, as amended ("Bankruptcy
Code"). The Company is a debtor in a case filed under Chapter 11 of the
Bankruptcy Code styled In re Huntway Partners, L.P., Debtor, Case No. 96-799
(HSB), pending in the United States Bankruptcy Court for the District of
Delaware ("Bankruptcy Court"). Section 1145(c) of the Bankruptcy Code provides
that securities issued pursuant to Section 1145(a) are deemed to be offered in
a public offering. The offering of the indenture securities prior to the
filing of a case under the Bankruptcy Code was exempt from registration under
the Securities Act by virtue of Section 4(2) thereof, which exempts
transactions by an issuer not involving any public offering, and Section
3(a)(9) thereof, which exempts exchanges of securities by an issuer with its
existing security holders exclusively where no commission or other remuneration
is paid or given directly or indirectly for soliciting such exchange.
The indenture securities, the Junior Subordinated Notes due 2005 (the
"New Notes"), are securities being issued by the Company pursuant to a
Prepackaged Plan of Reorganization of Huntway Partners, L.P. under Chapter 11
of the United States Bankruptcy Code (the "Plan") filed by the applicant with
the Bankruptcy Court on November 12, 1996. The Plan may be modified from time
to time as provided therein.
The New Notes are being issued in exchange for claims against the
Company. These claims consist of the allowed secured claims of the holders of
the Increasing Rate Junior Subordinated Debentures Due 2020, issued by the
Company ("Old Notes"). While the holders of the Old Notes are principally
receiving the New Notes in exchange for their claims, they are also receiving
common units representing limited partnership interests of the Company ("Common
Units").
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<PAGE> 3
AFFILIATIONS
3. Affiliates. Furnish a list or diagram of all affiliates of
the applicant and indicate the respective percentages of voting securities or
other bases of control.
Huntway Managing Partner, L.P., a Delaware limited partnership
("HMP"), is currently the managing general partner of the Company and holds a
0.9% equity ownership interest in the Company.
Huntway Holdings, L.P., a Delaware limited partnership ("HH"), is
currently the special general partner of the Company and holds a 0.1% equity
ownership interest in the Company.
Reprise Holdings, Inc., a Texas corporation ("Reprise"), is the sole
general partner of HH and the sole general partner of HMP.
The Company is the sole general partner of Sunbelt Refining Co., L.P.,
a Delaware limited partnership ("Sunbelt"), and holds a 99% equity ownership
interest in Sunbelt.
See also Item 4 below -- "Directors and Executive Officers."
MANAGEMENT AND CONTROL
4. Directors and executive officers. List the name and the
complete mailing addresses of all directors and executive officers of the
applicant and all persons chosen to become directors and executive officers.
Indicate all offices with the applicant held or to be held by the person named.
HMP, the Company's general partner, rather than a board of directors,
manages the business and affairs of the Company. Similarly, HMP is itself a
partnership and its business and affairs are managed by its general partner,
Reprise, rather than a board of directors. However, Reprise, as sole general
partner of HMP, has established an operating committee to consult with Reprise
with respect to the management of HMP and the Company, and has elected the
following individuals as members of the operating committee:
Juan Y. Forster
Samuel M. Mencoff
Justin S. Huscher
Raymond M. O'Keefe
The mailing address for each of these persons is as follows:
c/o Huntway Partners, L.P.
25129 The Old Road
Newhall, CA 91381
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<PAGE> 4
The following persons are serving as executive officers of the
Company, holding the following offices, and will serve as executive officers of
the Company, holding the same offices, upon the consummation of the Plan:
<TABLE>
<CAPTION>
Name Office(s)
____________________ __________________________________
<S> <C>
Juan Y. Forster President and Chief Executive officer
Warren J. Nelson Executive Vice President and Chief Financial Officer
Lucian A. Nawrocki Executive Vice President of Asphalt Marketing
Terrance L. Stringer Executive Vice President of Supply and Planning
</TABLE>
The mailing address for each of these persons is as follows:
c/o Huntway Partners, L.P.
25129 The Old Road
Newhall, California 91381
5. Principal owners of voting securities. Furnish the following
information as to each person owning 10 percent or more of the voting
securities of the applicant.
The following table sets forth each person that currently owns 10% or
more of the voting securities of the Company as of November 12, 1996:
<TABLE>
<CAPTION>
Percentage of
Name and Complete Title of Class Voting Securities
Mailing Address of Owner Owned(1) Amount Owned Owned(1)
_______________________________________________ ________________ ____________________ ____________________
<S> <C> <C> <C>
Huntway Managing Partner, L.P. . . . . . . . . General 90% of the General 0.9% of equity
c/o Reprise Holding, Inc. Partnership Partnership Interest interests in the
c/o Madison Dearborn Partners Interest Company
Three First National Plaza, Suite 1330
Chicago, IL 60602
Huntway Holdings, L.P. . . . . . . . . . . . . General 10% of the General 0.1% of equity
c/o Reprise Holding, Inc. Partnership Partnership Interest interests in the
c/o Madison Dearborn Partners Interest Company
Three First National Plaza, Suite 1330
Chicago, IL 60602
First Chicago Equity Corporation . . . . . . . Common Units 3,640,121(2) 31.5% of equity
f/k/a First Capital Corporation of Chicago interests in the
One First National Plaza Company
Chicago, IL 60670
</TABLE>
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<PAGE> 5
<TABLE>
<CAPTION>
Percentage of
Name and Complete Title of Class Voting Securities
Mailing Address of Owner Owned(1) Amount Owned Owned(1)
_______________________________________________ __________________ ___________________ ______________________
<S> <C> <C> <C>
Bankers Trust Company . . . . . . . . . . . . . Common Units 1,975,522 (3) 14.6% of equity
280 Park Avenue interests in the
New York, NY 10017 Company
Massachusetts Mutual Life Insurance Company . . Common Units 1,092,156 (3) 8.6% of equity
1295 State Street interests in the
Springfield, MA 01111 Company
Mr. Andre Danesh . . . . . . . . . . . . . . . Common Units 1,460,959 (4) 11.2% of equity
Allied Financial Corp. interests in the
1583 Beacon Street Company
Brookline, MA 02146
All Officers and operating committee members as Common Units 1,810,927(5)(6) 15.7% of equity
a group (12 Persons) . . . . . . . . . . . . . interests in the
Company
</TABLE>
________________
(1) As a Delaware limited partnership, the business and affairs of the Company
are managed by its general partner, in accordance with the Amended and
Restated Agreement of Limited Partnership of the Company.
(2) Does not include 653,286 Common Units held by Reprise Holdings, Inc. First
Chicago Equity Corporation and Madison Dearborn Partners III own all of the
outstanding common stock of Reprise Holdings, Inc. First Chicago Equity
Corporation and Madison Dearborn Partners III disclaim beneficial ownership
of Common Units beneficially owned by Reprise Holdings, Inc.
(3) All reported beneficial ownership of Common Units represents warrants to
purchase Common Units at an exercise price of $.875 per Common Unit under
the June 23, 1993 restructuring agreement. Pursuant to the Prepackaged
Plan, these warrants will be canceled and the holders thereof will receive
25% of the Common Units outstanding immediately following Consummation.
(4) Includes 378,300 Common Units held by Mr. Danesh; 243,700 Common Units held
by Allied Financial Corporation's Profit Sharing Plan, of which Mr. Danesh
is the trustee; 159,900 Common Units held by E & S Investments, of which
Mr. Danesh is the general manager; and 133,000 Common Units held by Allied
Financial Investments, of which Mr. Danesh is a general partner. Also
includes 546,059 Common Units issuable upon the exercise of an option
issued by Huntway to Mr. Danesh. The exercise price provided for in such
option is $.50 per Common Unit. Does not include option to purchase
600,000 Common Units which Huntway has agreed to issue to Mr. Danesh in the
event the restructuring is consummated. The exercise price provided for in
such option will be $.50 per Common Unit.
(5) Includes 62,500 and 341,958 Common Units held by Madison Dearborn Partners
VI and Madison Dearborn Partners III, respectively. Samuel M. Mencoff and
Justin S. Huscher, members of the Operating Committee, serve as general
partners of such entities. Also includes 653,286 Common Units held by
Reprise Holdings, Inc. Mr. Mencoff is the President and sole director of
Reprise Holdings, Inc. Mr. Mencoff disclaims beneficial ownership of the
Common Units held by Reprise Holding, Inc.
(6) Includes options to acquire 103,133 Common Units exercisable at $1 a unit.
The following table sets forth each person what will own 10% or more
of the voting securities of the Company upon consummation of the Plan:
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<PAGE> 6
<TABLE>
<CAPTION>
Percentage of
Name and Complete Title of Class Voting Securities
Mailing Address of Owner Owned Amount Owned Owned(1)
_______________________________________________ ________________ _____________________ ______________________
<S> <C> <C> <C>
Huntway Managing Partner, L.P. . . . . . . . . General 90% of the General 0.9% of equity
c/o Reprise Holding, Inc. Partnership Partnership Interest interests in the
c/o Madison Dearborn Partners Interest Company
Three First National Plaza, Suite 1330
Chicago, IL 60602
Huntway Holdings, L.P. . . . . . . . . . . . . General 10% of the General 0.1% of equity
c/o Reprise Holding, Inc. Partnership Partnership Interest interests in the
c/o Madison Dearborn Partners Interest Company
Three First National Plaza, Suite 1330
Chicago, IL 60602
First Chicago Equity Corporation . . . . . . . Common Units 4,643,690(2) 18.32%
f/k/a First Capital Corporation of Chicago
One First National Plaza
Chicago, IL 60670
Bankers Trust Company . . . . . . . . . . . . . Common Units 6,966,816 27.49%
280 Park Avenue
New York, NY 10017
Massachusetts Mutual Life Insurance Company . . Common Units 3,851,507 15.20%
1295 State Street
Springfield, MA 01111
</TABLE>
- ----------------
(1) As a Delaware limited partnership, the business and affairs of the Company
are managed by its general partner, in accordance with the Amended and
Restated Agreement of Limited Partnership of the Company.
(2) Does not include 653,286 Common Units held by Reprise Holdings, Inc. First
Chicago Equity Corporation and Madison Dearborn Partners III won all of the
outstanding common stock of Reprise Holdings, Inc., First Chicago Equity
Corporation and Madison Dearborn Partners III disclaim beneficial ownership
of Common Units beneficially owned by Reprise Holdings, Inc.
UNDERWRITERS
6. Underwriters. Give the name and complete address of (a) each
person who, within three years prior to the date of filing the application,
acted as an underwriter of any securities of the obligor which were outstanding
on the date of filing the application and (b) each proposed principal
underwriter of the securities proposed to be offered. As to each person
specified in (a), give the title of each class of securities underwritten.
There is no person who, within the three years prior to the date of
filing the application, has served as an underwriter of any securities of the
Company.
There is no person who will be the proposed principal underwriter of
the securities proposed to be offered.
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<PAGE> 7
CAPITAL SECURITIES
7. Capitalization. (a) Furnish the following information as to
each authorized class of securities of the applicant.
As of November 12, 1996
<TABLE>
<CAPTION>
Title of Class Amount Authorized Amount Outstanding
- --------------------------------------- ------------------------------------- ------------------
<S> <C> <C>
General Partnership Interests 1% of equity ownership of the All
Company
Common Units representing limited 11,556,250 Common Units representing All
partnership interests 99% of equity ownership of the
Company
</TABLE>
(b) Give a brief outline of the voting rights of each class of
voting securities referred to in paragraph (a) above.
The holders of the general partner interests of the Company generally
have the exclusive right and power to manage and operate the business of the
Company. Under the Amended and Restated Agreement of Limited Partnership (the
"Partnership Agreement"), HH is presumed to have delegated all of its rights to
manage and operate the Company to HMP and, thus, HMP conducts, directs and
exercises full control over all activities of the Company.
In most circumstances, the Partnership Agreement provides that holders
of 10% of the Common Units or HMP may propose an amendment to the Partnership
Agreement and such proposed amendment will be effective if approved by the
holders of a majority of the outstanding Common Units; provided that if such
amendment would materially and adversely affect the rights or preferences of
any certain class of the Company's securities, then approval of the holders of
at least 2/3 of such securities is required.
The Partnership Agreement provides that a merger or consolidation must
be approved by holders of a majority of the outstanding Common Units, unless
the merger agreement contains a provision which, if contained in an amendment
to the Partnership Agreement, would require the vote of a greater percentage of
the Common Units under the Partnership Agreement or Delaware law.
The Managing Partner may be removed upon the vote of holders of at
least 2/3 of the Common Units then outstanding. Upon such removal or the
withdrawal of the Managing General Partner, holders of a majority of the
outstanding Common Units have the right to appoint a successor.
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<PAGE> 8
INDENTURE SECURITIES
8. Analysis of indenture provisions. Insert at this point the
analysis of indenture provisions required under Section 305(a)(2).
The following discussion is a description of certain provisions of the
indenture (the "Indenture") to which this filing relates required by Section
305(a)(2) of the Trust Indenture Act of 1939, as amended. This discussion is
qualified in its entirety by reference to the Indenture, a copy of which in
filed as Exhibit T3C. Capitalized terms used in this Item 8 and not otherwise
defined have the respective meanings assigned to them in the Indenture.
A. Events of Default
The Indenture defines an Event of Default to include, inter alia, any
of the following events:
(a) default in the payment of (i) any interest on any Security
when it becomes due and payable, and continuance of such
default for a period of three days or (ii) the principal of
any Security at its Maturity, in each case including payments
from CDSA and from Excess Cash; provided, however, a default
in the payment of principal or interest with respect to a
Security: (x) relating to a payment required to be made by
issuance of Secondary Securities in accordance with Section
307 shall constitute an Event of Default for purposes of this
Indenture to the extent that such default arises from failure
to issue such securities in the amount, at the time and in the
manner required by Sections 307(a) and 307(i); (y) relating to
a payment required to be made from CDSA shall constitute an
Event of Default for purposes of this Indenture if such
payment is not made on the date required notwithstanding the
failure of the Company to calculate CDSA for the relevant
period; and (z) relating to a payment required to be made from
Excess Cash shall constitute an Event of Default for purposes
of this Indenture if such payment is not made on the date
required notwithstanding the failure of the Company to
calculate Excess Cash for the relevant date; or
(b) default in the performance, or breach, of any covenant,
obligation or agreement of the Company in the Indenture or
breach of warranty, subject to in certain cases to a 15-day
grace period; or
(c) (i) failure of the Company or any of its Subsidiaries to pay
or any default in the payment of any principal or interest on
any other Indebtedness in the outstanding principal amount of
$250,000 or more, or in the payment of any Contingent
Obligation the outstanding principal amount of which is
$250,000 or more in each case beyond any period of grace
provided; or (ii) breach or default with respect to any other
term of any evidence of any other Indebtedness the outstanding
principal amount of which is $250,000 or more or of any loan
agreement, mortgage, indenture or other material agreement
relating thereto, if the effect of such default or breach is
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<PAGE> 9
to cause, or to permit the holder or holders of the
Indebtedness (or a trustee on behalf of such holder or
holders) to cause, that Indebtedness to become or be declared
due prior to its stated maturity (upon the giving or receiving
of notice, lapse of time, both, or otherwise); provided,
however, that in the case of failure or default as described
in (i) and (ii) above with respect to the Securities on the
part of any Person, such default constitutes an Event of
Default without regard to amount; or
(d) bankruptcy, insolvency and similar events involving the
Company, Sunbelt, their respective subsidiaries, or partners
of the Company holding in excess of 51% of the Common Units;
or
(e) except as otherwise agreed to by the Requisite Holders, any
money judgment, writ or warrant of attachment, or similar
process involving in any case an amount in excess of $350,000
not adequately covered by insurance shall be entered or filed
against the Company or any of its material Subsidiaries or any
of their respective assets and shall remain undischarged,
unvacated, unbonded or unstayed for a period of 30 days or in
any event later than five days prior to the date of any
proposed sale thereunder; or
(f) any order, judgment or decree shall be entered against the
Company or any of its material Subsidiaries, decreeing the
dissolution or split up of the Company or that Subsidiary and
such order shall remain undischarged or unstayed for a period
in excess of 30 days; or
(g) termination of any ERISA Pension Plan maintained by the
Company or its ERISA affiliates resulting in a liability in
excess of $250,000; or withdrawal by the Company or any of its
ERISA affiliates of a multi-employer pension plan if such
withdrawal results in an annual liability exceeding $100,000;
or
(h) revocation by the Company of the Indenture and the Securities
or impairment of the security therefor; or
(i) the General Partner and the Special Managing Partner shall
cease to be the sole general partners of the Company or the
Company shall cease to be the Sunbelt Managing General
Partner; provided that the General Partner may transfer its
general partnership interest in the Company to a corporation
or a limited partnership formed and owned by the Company's
senior management if such transfer will not result in the loss
of limited liability for the Company's limited partners, cause
the Company to be treated as a corporation for federal income
tax purposes or result in adverse tax consequences to the
Holders of Securities.
Upon the occurrence of an Event of Default, the Company shall promptly notify
in writing the Trustee. Upon receipt of such notification from the Company or
if a Responsible Officer of the Trustee has actual knowledge of the occurrence
of an Event of Default, the Trustee shall promptly notify the Holders in
writing of the occurrence of such Event of Default. The Company shall
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<PAGE> 10
promptly notify in writing the Trustee of any Event of Default which has
occurred and has continued uncured for a period of ten calendar days. Upon
receipt of such notification from the Company or if a Responsible Officer of
the Trustee has actual knowledge of the occurrence of an Event of Default that
has not been cured within ten calendar days, the Trustee shall promptly notify
the Holders and the Collateral Agent in writing of such Event of Default.
There are no provisions in the Indenture with respect to the
withholding of notice to the holders of the Securities of any Event of Default.
B. Authentication and Delivery of Indenture Securities; Application of
Proceeds
The indenture provides that Securities bearing the manual or facsimile
signature of individuals who were at any time the appropriate officers of the
applicant shall bind the applicant, even if such individuals have ceased to
hold office prior to authentication and delivery of such securities or did not
hold such offices at the date of such securities. After execution and delivery
of the indenture, the applicant may deliver executed Securities to the Trustee
for authentication and delivery. The Trustee will authenticate and deliver
such Securities in accordance with the applicant's order only as set forth in
the Indenture. No Security will be entitled to any benefit under the Indenture
or will be valid or obligatory unless it bears a certificate of authentication
in the form provided for in the Indenture executed by the Trustee by manual
signature. Such certificate on any Security shall be the sole and conclusive
evidence that such Security has been duly authenticated and delivered.
At any time and from time to time after the execution and delivery of
the Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such indenture securities, and the Trustee in
accordance with such Company Order shall authenticate and deliver such
Securities.
There are no provisions in the Indenture regarding the application of
proceeds. There will be no proceeds from the initial issuance of the
Securities because such Securities will be issued pursuant to a plan of
reorganization approved by the Bankruptcy Court in exchange for the claims of
such holders arising from ownership of certain securities of the debtors
involved in the bankruptcy proceeding.
Each Security shall be dated the date of its authentication.
C. Release and/or Substitution of Property
The Securities are not currently secured by a lien on any property.
Accordingly, the Indenture contains no provision regarding the release or
release and substitution of property.
D. Satisfaction and Discharge
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to
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<PAGE> 11
pay, to the Trustee all sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts as those upon which
such sums were held by the Company or such Paying Agent; and , upon such
payment by any Paying Agent to the Trustee, such Paying Agent and the Company
shall be released from all further liability with respect to such money.
E. Evidence of Compliance
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee a Compliance Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including any covenants the compliance
with which constitutes a condition precedent) relating to the proposed action
have been complied with and an Opinion of Counsel stating that in the opinion
of such counsel all such conditions precedent, if any, have been complied with,
except that, in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include: (a) a
statement that each individual signing such certificate or opinion has read
such covenant or condition and the definitions herein relating thereto; (b) a
brief statement as to the nature and scope of the examination or investigation,
if any, upon which the statements or opinions contained in such certificate or
opinion are based; (c) a statement that, in the opinion of each such
individual, he or she has made such examination or investigation as is
necessary to enable him or her to express an informed opinion as to whether or
not such covenant or condition has been complied with and, in the case of any
statement regarding compliance with Section 415 of this Indenture or the
calculation of CDSA or Excess Cash, detailed computations in support of the
statements made; and (d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
9. Other Obligors. Give the name and complete mailing address of
each person other than the applicant, who is an obligor upon the Indenture
securities.
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<PAGE> 12
HMP, HH, and Sunbelt have guaranteed certain obligations of the
Company under the Indenture and have each executed a guarantee to such effect.
The name and address of each is as follows:
Huntway Managing Partner, L.P.
c/o Reprise Holding, Inc.
c/o Madison Dearborn Partners
Three First National Plaza, Suite 1330
Chicago, IL 60602
Huntway Holdings, L.P.
c/o Reprise Holding, Inc.
c/o Madison Dearborn Partners
Three First National Plaza, Suite 1330
Chicago, IL 60602
Sunbelt Refining Company, L.P.
c/o Huntway Partners, L.P.
25129 The Old Road
Newhall, CA 91381
The guarantees executed by HH and HMP are non recourse to the
respective guarantors except to the extent of HH's and HMP's general partner
interests which have been pledged to secure obligations under the guarantees.
10. Contents of application for qualification. This application
for qualification comprises:
(a) Pages numbered 1 to 13, consecutively.
(b) The statement of eligibility and qualification of the trustee
under the indenture to be qualified.
(c) The following exhibits in addition to those filed as part of
the statement of eligibility and qualification of the trustee:
Exhibit T3A1. Amended and Restated Agreement of Limited
Partnership of Huntway Partners, L.P. dated as of November 9,
1988 (incorporated by reference to Exhibit A to the Prospectus
included in the Registration Statement on Form S-1, filed
September 26, 1988, Registration No. 33-24445)
Exhibit T3A2. Amendment of Agreement of Limited Partnership
of Huntway Partners, L.P. dated as of December 20, 1989
(incorporated by reference herein to Exhibit 3.3 of the Annual
Report on Form 10-K, filed March 30, 1990, Commission File No.
1-0091)
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<PAGE> 13
Exhibit T3B. Huntway Partners, L.P. Bylaws (incorporated
by reference herein to Exhibit 3.2 of the Registration
Statement on Form S-1, as amended by Amendment
No. 2, filed November 2, 1988, Registration No. 33-24445)
Exhibit T3C. Form of Indenture
Exhibit T3D. Not Applicable
Exhibit T3E1. Consent Solicitation and Disclosure Statement
of Huntway Partners, L.P. dated October 10, 1996 (incorporated
by reference to the Consent Solicitation and Disclosure
Statement filed with the Securities and Exchange Commission
October 15, 1996 pursuant to Rule 14a-6 under the Securities
Exchange Act of 1934, Commission File No. 14-0091).
Exhibit T3F. Cross Reference Sheet
Pursuant to the requirements of the Trust Indenture Act of 1939, the
applicant, Huntway Partners, L.P., a limited partnership organized and existing
under the laws of Delaware, has duly caused this application to be signed on
its behalf by the undersigned, thereunto duly authorized, and to be attested,
all in the City of Newhall, and State of California, on the 9th day of
December, 1996.
SIGNATURE
By: /s /Warren J. Nelson
---------------------------
Warren J. Nelson
Executive Vice-President
ATTEST:
By: /s /Earl G. Fleisher
----------------------------
Controller and Tax Manager
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<PAGE> 1
_____________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
___________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED, OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305 (b) (2) _______
___________
IBJ SCHRODER BANK & TRUST COMPANY
(Exact name of trustee as specified In its charter)
New York 13-5375195
(State of Incorporation (I.R.S. employer
if not a U.S. national bank) identification No.)
One State Street, New York, New York 10004
(Address of principal executive offices) (Zip code)
IBJ Schroder Bank & Trust Company
One State Street
New York, New York 10004
(212) 858-2000
(Name, Address and Telephone Number of Agent for Service)
Huntway Partners, L.P.
(Exact name of obligor as specified in its charter)
Delaware 36-3601653
(State or jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
P.O. Box 7033
Van Nuys, CA. 91409
(Address of principal executive office) (zip code)
___________
Junior Subordinated Debentures due 2005
(Title of Indenture Securities)
_____________________________
<PAGE> 2
Item 1. General information
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, Two Rector Street,
New York, New York
Federal Deposit Insurance Corporation Washington, D.C.
Federal Reserve Bank of New York Second District,
33 Liberty Street, New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
The obligor is not an affiliate of the trustee.
(See Note on Page 8)
Item 3. Voting securities of the trustee.
Furnish the following information as to each class of voting
securities of the trustee:
Col. A Col. B
Title of class Amount Outstanding
-------------- ------------------
Not Applicable
Item 4. Trusteeships under other indentures.
If the trustee is a trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the obligor are
outstanding, furnish the following information:
(a) Title of the securities outstanding under each such other
indenture
Increasing Rate Junior Subordinated Debentures due 2020
-2-
<PAGE> 3
IBJ Schroder has filed a statement of eligibility on Form T-1 to act
as Trustee under an Indenture of the obligor pursuant to which the
Junior Subordinated Debentures due 2005 will be registered under the
Securities Act of 1933 and will be issued on the Effective Date of
Huntway Partners, L.P.'s Plan of Reorganization as described in Item
4(b) below.
(b) A brief statement of the facts relied upon as a basis for the
claim that no conflicting interest within the meaning of
Section 310(b)(1) of the Act arises as a result of the
trusteeship under any such other indenture, including a
statement as to how the indenture securities will rank as
compared with the securities issued under such other
indenture.
On the Effective Date of the obligor's Plan of Reorganization,
the securities listed in item 4(a) above will be satisfied,
discharged and canceled and, IBJ Schroder will act as Trustee
pursuant to an amended and restated indenture under which the
new Junior Subordinated Debentures due 2005 will be issued.
Item 5. Interlocking directorates and similar relationships with the
obligor or underwriters.
If the trustee or any of the directors or executive officers of the
trustee is a director, officer, partner, employee, appointee, or
representative of the obligor or of any underwriter for the obligor,
identify each such person having any such connection and state the
nature of each such connection.
Not Applicable
Item 6. Voting securities of the trustee owned by the obligor or its
officials.
Furnish the following information as to the voting securities
of the trustee owned beneficially by the obligor and each
director, partner, and executive officer of the obligor:
<TABLE>
<S> <C> <C> <C>
Col. A Col. B Col. C Col. D
Name of Owner Title of Class Amount owned Percent of voting
beneficially securities represented
by amount given in
Col. C
_______________ _______________ _______________ _______________
</TABLE>
Not Applicable
Item 7. Voting securities of the trustee owned by underwriters or their
officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and
each director, partner and executive officer of each such underwriter:
- 3 -
<PAGE> 4
<TABLE>
<S> <C> <C> <C>
Col. A Col. B Col. C Col. D
Name of Owner Title of Class Amount owned Percent of voting
beneficially securities represented
by amount given in
Col. C
_______________ _______________ _______________ _______________
</TABLE>
Not Applicable
Item 8. Securities of the obligor owned or held by the trustee
Furnish the following information as to securities of the obligor
owned beneficially or held as collateral security for obligations in
default by the trustee:
<TABLE>
<S> <C> <C> <C>
Col. A Col. B Col. C Col. D
Title of Class Whether the securities Amount owned Percent of class
are voting or nonvoting beneficially or held as represented by amount
securities collateral security for given in Col. C
obligations in default
_______________ _______________ _______________ _______________
</TABLE>
Not Applicable
Item 9. Securities of underwriters owned or held by the trustee.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the
obligor, furnish the following information as to each class of
securities of such underwriter any of which are so owned or held by
the trustee:
<TABLE>
<S> <C> <C> <C>
Col. A Col. B Col. C Col. D
Title of Class Whether the securities Amount owned Percent of class
are voting or nonvoting beneficially or held as represented by amount
securities collateral security for given in Col. C
obligations in default
by trustee
_______________ _______________ _______________ _______________
</TABLE>
Not Applicable
Item 10. Ownership or holdings by the trustee of voting securities of
certain affiliates or securityholders of the obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the
knowledge of the trustee (1) owns 10 percent or more of the voting
securities of the obligor or (2) is an affiliate, other than a
subsidiary, of the obligor, furnish the following information as to
the voting securities of such person:
- 4 -
<PAGE> 5
<TABLE>
<S> <C> <C> <C>
Col. A Col. B Col. C Col. D
Title of Class Whether the securities Amount owned Percent of class
are voting or nonvoting beneficially or held as represented by amount
securities collateral security for given in Col. C
obligations in default
by trustee
_______________ _______________ _______________ _______________
</TABLE>
Not Applicable
Item 11. Ownership or holdings by the trustee of any securities of a
person owning 50 percent more of the voting securities of the
obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the
knowledge of the trustee, owns 50 percent or more of the voting
securities of the obligor, furnish the following information as to
each class of securities of such any of which are so owned or held by
the trustee:
<TABLE>
<S> <C> <C> <C>
Col. A Col. B Col. C Col. D
Title of Class Whether the securities Amount owned Percent of class
are voting or nonvoting beneficially or held as represented by amount
securities collateral security for given in Col. C
obligations in default
by trustee
_______________ _______________ _______________ _______________
</TABLE>
Not Applicable
Item 12. Indebtedness of the Obligor to the Trustee.
Except as noted in the instructions, if the obligor is indebted to the
trustee, furnish following information:
Col. A Col. B Col. C
Nature of Amount Date
Indebtedness Outstanding Due
------------ ----------- ---
Not Applicable
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default with respect to
the securities under this indenture. Explain the nature of
any such default.
Not Applicable
- 5 -
<PAGE> 6
(b) If the trustee is a trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the obligor are
outstanding, or is trustee for more than one outstanding
series of securities under the indenture, state whether there
has been a default under any such indenture or series,
identify the indenture or series affected, and explain the
nature of any such default.
- Default pursuant to Section 501(a) of the Indenture
due to obligor's failure to make a mandatory payment
of interest due on June 30, 1996 and September 30,
1996.
Item 14. Affiliations with the Underwriters
If any underwriter is an affiliate of the trustee, describe
each such affiliation
Not Applicable
Item 15. Foreign Trustees.
Identify the order or rule pursuant to which the foreign
trustee is authorized to act as sole trustee under indentures
qualified or to be qualified under the Act.
Not Applicable
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of
eligibility.
*1. A copy of the Charter of IBJ Schroder Bank & Trust Company as
amended to date. (See Exhibit 1A to Form T-1, Securities and
Exchange Commission File No. 22-18460).
*2. A copy of the Certificate of Authority of the Trustee to
Commence Business (included in Exhibit 1 above).
*3. A copy of the Authorization of the Trustee, as amended to date
(See Exhibit 4 to Form T-1, Securities and Exchange Commission
File No. 22-19146).
*4. A copy of the existing By-Laws of the Trustee, as amended to
date (See Exhibit 4 to Form T-1, Securities and Exchange
Commission File No. 22-19146).
5. A copy of each Indenture referred to in Item 4, if the Obligor
is in default. Not Applicable.
6. The consent of the United States institutional trustee
required by Section 321(b) the Act.
- 6 -
<PAGE> 7
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. A copy of any order pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified
or to be qualified under the act. Not Applicable.
9. Consent to service of process on Form F-X. Not Applicable.
* The Exhibits thus designated are incorporated herein by reference as
exhibits hereto. Following the description of such Exhibits is a
reference to the copy of the Exhibit heretofore filed with the
Securities and Exchange Commission, to which there have been no
amendments or changes.
- 7 -
<PAGE> 8
NOTE
In answering any item in this Statement of Eligibility which relates to matters
peculiarly within the knowledge of the obligor and its directors or officers,
the trustee has relied upon information furnished to it by the obligor.
Inasmuch as this Form T-1 is filed prior to the ascertainment by the trustee of
all facts on which to base responsive answers to Item 2, the answer to said
Item are based on incomplete information.
However, those answers should be considered as correct unless amended by an
amendment to this Form T-1.
- 8 -
<PAGE> 9
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939, as amended, the trustee, IBJ Schroder Bank & Trust Company, a corporation
organized and existing under the laws of the State of New York, has duly caused
this statement of eligibility & qualification to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of New York, and State
of New York, on the 13th day of November, 1996.
IBJ SCHRODER BANK & TRUST COMPANY
By: /s/ Thomas McCutcheon
-------------------------------------
Thomas McCutcheon
Assistant Vice President
- 9 -
<PAGE> 10
Exhibit 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust
Indenture Act of 1939, as amended, in connection with the issue by Huntway
Partners, L.P. of its Junior Subordinated Debentures due 2005, we hereby
consent that reports of examinations by Federal, State, Territorial, or
District authorities may be furnished by such authorities to the Securities and
Exchange Commission upon request therefor.
IBJ SCHRODER BANK & TRUST COMPANY
By: /s/ Thomas McCutcheon
----------------------------------
Thomas McCutcheon
Assistant Vice President
Dated: November 13, 1996
<PAGE> 11
EXHIBIT 7
CONSOLIDATED REPORT OF CONDITION OF
IBJ SCHRODER BANK & TRUST COMPANY
of New York, New York
And Foreign and Domestic Subsidiaries
Report as of June 30, 1996
<TABLE>
<CAPTION>
Dollar Amounts
in Thousands
ASSETS --------------
------
<S> <C> <C>
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin . . . . . . . . . . . . . . $ 39,834
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . $ 236,748
Securities: Held to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 173,034
Available-for-sale . . . . . . . . . . . . . . . . . . . . . . . . . . $ 35,882
Federal funds sold and securities purchased under
agreements to resell in domestic offices of the bank
and of its Edge and Agreement subsidiaries and in IBFs:
Federal Funds sold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 36,968
Securities purchased under agreements to resell . . . . . . . . . . . . . . . $ -0-
Loans and lease financing receivables:
Loans and leases, net of unearned income . . . . . . . $ 1,668,191
LESS: Allowance for loan and lease losses . . . . . . $ 54,288
LESS: Allocated transfer risk reserve . . . . . . . . $ -0-
Loans and leases, net of unearned income, allowance, and reserve . . . . . . . $ 1,613,903
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . . . . $ 500
Premises and fixed assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 71,413
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 397
Investments in unconsolidated subsidiaries and associated companies . . . . . . . . $ -0-
Customers' liability to this bank on acceptances outstanding . . . . . . . . . . . $ 223
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ -0-
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 55,007
TOTAL ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 2,199,909
</TABLE>
<PAGE> 12
<TABLE>
<CAPTION>
LIABILITIES
-----------
<S> <C> <C>
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 652,676
Noninterest-bearing . . . . . . . . . . . . . . . $ 278,082
Interest-bearing . . . . . . . . . . . . . . . . . $ 374,594
In foreign offices, Edge and Agreement subsidiaries, and IBFs . . . . . . . . . . . $ 893,475
Noninterest-bearing $ 15,577
Interest-bearing $ 877,898
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBFs:
Federal Funds purchased . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 212,000
Securities sold under agreements to repurchase . . . . . . . . . . . . . . . . $ -0-
Demand notes issued to the US Treasury . . . . . . . . . . . . . . . . . . . . . . $ 48,606
Trading Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 293
Other borrowed money:
a) With original maturity of one year or less . . . . . . . . . . . . . . . . $ 102,049
b) With original maturity of more than one year . . . . . . . . . . . . . . . $ 3,000
Mortgage indebtedness and obligations under capitalized leases . . . . . . . . . . $ -0-
Bank's liability on acceptances executed and outstanding . . . . . . . . . . . . . $ 223
Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . . . . $ -0-
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 74,608
TOTAL LIABILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 1,986,930
Limited life preferred stock and related surplus . . . . . . . . . . . . . . . . . $ -0-
EQUITY CAPITAL
--------------
Perpetual preferred stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ -0-
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 29,649
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 217,008
Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . $ (34,414)
Plus: Net unrealized gains (losses) on marketable equity securities . . . . . . $ 736
Cumulative foreign currency translation adjustments . . . . . . . . . . . . . . . .
$ -0-
TOTAL EQUITY CAPITAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 212,979
TOTAL LIABILITIES AND EQUITY CAPITAL . . . . . . . . . . . . . . . . . . . . . . . $ 2,199,909
</TABLE>
<PAGE> 1
EXHIBIT T3C
HUNTWAY PARTNERS, L.P.,
as Issuer
TO
IBJ SCHRODER BANK & TRUST COMPANY,
as Trustee
___________________________
AMENDED AND RESTATED JUNIOR SUBORDINATED
DEBENTURE INDENTURE
Dated as of ___________, 1996
___________________________
<PAGE> 2
TABLE OF CONTENTS*
<TABLE>
<S> <C>
PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION . . . . . . . . . . . . . . . 1
Section 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Affiliate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Aggregate Outstanding Amount" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Authorized Officer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Business Day" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Capital Lease," . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Cash Equivalents" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Closing Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Collateral Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Collateralized Note Indenture" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Commission" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Company" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Company Request" or "Company Order" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Compliance Certificate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
</TABLE>
__________________________________
* This table of contents shall not, for any purpose, be deemed to be a
part of this Indenture.
i
<PAGE> 3
<TABLE>
<S> <C>
"Consolidated Capital Expenditures" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Consolidated Current Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Consolidated Current Liabilities" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Consolidated EBITDA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Consolidated Interest Expense" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Consolidated Net Income" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Consolidated Net Working Capital" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Contingent Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Corporate Trust Office" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Current Market Value" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Defaulted Interest" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Depository Institution" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Distribution of Assets" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Environmental Claim" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Environmental Laws" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"ERISA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"ERISA Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Facilities" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"FASB" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"GAAP" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"General Partner" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
"Governmental Authorization" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Hazardous Materials" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Grant" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Holder" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Huntway General Partners" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Indebtedness," . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Indenture" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Intercreditor Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Interest Accrual Period" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Interest Payment Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Interest Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Letter of Credit Facility" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Lien" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Material Adverse Effect" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Maturity", . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Multiemployer Plan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Officers' Certificate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Opinion of Counsel" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Outstanding," . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Partnership Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Pension Plan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C>
"Permitted Encumbrances" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Person" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
"Potential Event of Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Predecessor Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Proceeding" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Redeemable Securities" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Redemption Date," . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Redemption Price," . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Regular Record Date," . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Release" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Replacement Letter of Credit Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Representative" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
"Reprise" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
"Requisite Holders" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
"Responsible Officer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
"Restricted Junior Payment" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
"Securities" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
"Security Register" and "Security Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
"Senior Indebtedness" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
"Senior Securities" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
"Senior Notes" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
"Senior Notes (Other)" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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"Senior Notes (Sunbelt IDB)" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
"Special General Partner" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
"Special Record Date," . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
"Specified Senior Debt" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
"Stated Maturity," . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
"Subordinated Indebtedness" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
"Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Sunbelt" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Sunbelt Bonds" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Sunbelt General Partner" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Sunbelt Managing General Partner" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Sunbelt Partnership Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Trust Estate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Trust Indenture Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
"Trustee" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
"UCC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
"Unit Valuation Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
"Units" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 105. Notices to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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Section 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 108. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 110. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 112. Governing Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 114. Amendment and Restatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 115. Obligations Non-recourse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE TWO
SECURITY FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 202. Forms of Securities and Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE THREE
THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 301. Title and Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 304. Registration; Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 305. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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Section 306. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 307. Payment of Principal and Interest; Preservation of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 308. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 309. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE FOUR
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 401. Payment of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 402. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 403. Money for Security Payments to be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 404. Maintenance of Existence; Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 405. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 406. Limitation on Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 407. Limitation on Restricted Junior Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 408. Limitation on Restrictions Affecting Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 409. Financial Statements and Other Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 410. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 411. Restrictions on Acquisition of Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 412. Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 413. Maintenance of Properties and Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 414. Transactions with Partners and Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 415. Financial Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 416. Waiver of Stay, Extension or Usury Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
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Section 417. Limitation on Investments, Loans and Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 418. Limitation on Consolidated Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 419. Fundamental Changes Only on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 420. Contingent Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 421. Conduct of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 422. Grant of Lien to Secure Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 423. Environmental Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE FIVE
DEFAULTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . . 50
Section 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 505. Trustee May Enforce Claims Without Possession of Securities . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 508. Unconditional Right of Holders to Receive Principal and Interest . . . . . . . . . . . . . . . . . . . . . . 54
Section 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
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Section 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 515. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 516. Sale of Trust Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 517. Action on Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE SIX
THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 604. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 608. Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 609. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 610. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 611. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 612. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 613. Representations and Warranties of the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 614. Co-Trustees and Separate Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE . . . . . . . . . . . . . . . . . . . . 67
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Section 701. Company to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 702. Preservation of Information; Communications to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . 70
Section 801. Supplemental Indentures without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 802. Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 803. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 804. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 805. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 806. Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE NINE
REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . 73
Section 901. Right of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 902. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 903. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 904. Selection by Trustee of Securities to be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 905. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 906. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 907. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 908. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
ARTICLE TEN
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SUBORDINATION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . 76
Section 1001. Securities Subordinate to Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 1002. Distributions Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 1003. Subordination Legend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 1004. Prompt Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 1005. Power of Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 1006. Approval of Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 1007. Certain Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 1008. Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 1009. Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 1010. No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 1011. Validity of Subordinated Indebtedness and Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . 80
Section 1012. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 1013. Duties Limited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 1014. Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 1015. Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 1016. Rights of Trustee as a Holder of Senior Indebtedness; Preservation of Trustee's Rights . . . . . . . . . 82
Section 1017. Article Applicable to Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SIGNATURES
EXHIBIT A Form of Junior Subordinated Debenture Due 2005
</TABLE>
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AMENDED AND RESTATED JUNIOR SUBORDINATED DEBENTURE INDENTURE (this
"Indenture"), dated as of ___________, 1996 between Huntway Partners, L.P., a
Delaware limited partnership (the "Company"), and IBJ Schroder Bank & Trust
Company, a New York banking corporation, trustee (the "Trustee").
PRELIMINARY STATEMENT
The Company has duly authorized the creation of an issue of
its Junior Subordinated Debentures Due 2005 (hereinafter called the
"Securities") of substantially the tenor and amount hereinafter set forth, and
to provide therefor, the Company has duly authorized the execution and delivery
of this Indenture. All things necessary have been done to make the Securities,
when executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company and to make this
Indenture a valid agreement of the Company, in accordance with their and its
terms. All covenants and agreements made by the Company herein are for the
equal and proportionate benefit and security of the Holders (as hereinafter
defined) of the Securities. The Company is entering into this Indenture and
the Trustee is accepting the trusts created hereby, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged.
The Collateral Agent, the holders of the Senior Notes, Fleet
National Bank, as Trustee under the Collateralized Note Indenture and Bankers
Trust Company, as issuer of letters of credit under that certain Letter of
Credit and Reimbursement Agreement dated as of June 22, 1993 between Bankers
Trust Company, Huntway Partners, L.P. and Sunbelt Refining Company, L.P., as
amended, have entered into that certain Amended and Restated Intercreditor and
Collateral Trust Agreement dated as of _____, 1996 (the "Intercreditor
Agreement"), setting forth their respective rights with regard to their claims
against the assets of the Company and of Sunbelt Refining Company, L.P.
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as
the singular;
(b) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
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(c) except as otherwise expressly provided in this
Indenture, all accounting terms not otherwise defined herein shall
have the meanings assigned to them in conformity with GAAP; financial
statements and other information required to be delivered by the
Company to the Trustee and the Holders pursuant to this Indenture
shall be prepared in accordance with GAAP as in effect at the time of
such preparation; calculations in connection with the definitions,
covenants and other provisions of this Indenture, shall utilize
accounting principles and policies in conformity with those used to
prepare the financial statements contained in the Company's Annual
Report on Form 10-K, for the year ended December 31, 1995; and
(d) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
Certain terms, used principally in Articles Three, Four and
Six, are defined in those Articles.
"Act" when used with respect to any Holder has the meaning
specified in Section 104(a).
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Aggregate Outstanding Amount" means the aggregate principal
amount of all the Securities Outstanding at the date of determination.
"Authorized Officer" means, (i) with respect to the Company,
any president, vice president, secretary, treasurer, assistant vice president,
assistant secretary or assistant treasurer of the Company or any partner or
designated officer of the General Partner who is authorized to act for the
Company in matters relating to, and binding upon, the Company and (ii) with
respect to the Trustee or any other bank or trust company acting as trustee of
an express trust or as custodian, a Responsible Officer.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York or
California are authorized or obligated by law or executive order to close.
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<PAGE> 15
"Capital Lease," as applied to any Person, means any lease of
any property (whether real, personal or mixed) by that Person as lessee which
would, in conformity with GAAP, be accounted for as a capital lease on the
balance sheet of that Person.
"Cash Equivalents" means (i) marketable direct obligations
issued or unconditionally guarantied by the United States Government or issued
by an agency thereof and backed by the full faith and credit of the United
States, in each case maturing within six months from the date of acquisition
thereof; (ii) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any public
instrumentality thereof maturing within six months from the date of acquisition
thereof and, at the time of acquisition, having the highest rating obtainable
from either Standard & Poor's Corporation or Moody's Investors Service; (iii)
commercial paper maturing no more than 270 days from the date of creation
thereof and, at the time of acquisition, having a rating of at least A-2 or P-2
from either Standard & Poor's Corporation or Moody's Investors Services; and
(iv) time deposits, certificates of deposit (whether or not Eurodollar in
nature), bankers' acceptances, repurchase agreements, reverse repurchase
agreements, Eurodollar time deposits maturing within one year or similar
investments maturing within 12 months from the date of acquisition thereof
issued by Bankers Trust Company.
"Closing Date" means the date of the initial issuance of the
Securities.
"Collateral Agent" has the meaning specified in Section 1002.
"Collateralized Note Indenture" means the Amended and Restated
Collateralized Note Indenture of even date herewith between the Company and the
trustee named therein, pursuant to which the Senior Notes are issued, as
amended, supplemented or modified from time to time.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument, until a successor corporation or partnership
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor corporation or partnership.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by two Authorized Officers of the
Company.
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<PAGE> 16
"Compliance Certificate" means a certificate executed by
Authorized Officers of the Company who are authorized to certify as to the
matters contained in such certificate.
"Consolidated Capital Expenditures" means, for any period, the
aggregate of all expenditures (whether paid in cash or accrued as liabilities
and including that portion of Capital Leases capitalized on the consolidated
balance sheet of the Company and its Subsidiaries, excluding (i) the interest
portion of Capitalized Leases to the extent not required to be capitalized and
(ii) expenditures made in connection with the replacement, substitution or
restoration of assets to the extent financed (a) from insurance proceeds
received from third party insurers paid on account of the loss of or damage to
the assets being replaced or restored or (b) with awards of compensation
arising from the taking by eminent domain or condemnation of the assets being
replaced) by the Company and its Subsidiaries during the relevant period that,
in conformity with GAAP, should be included in the property, plant or equipment
reflected in the consolidated balance sheet of the Company and its
Subsidiaries.
"Consolidated Current Assets" means, as at any date of
determination, the total assets of the Company and its Subsidiaries on a
consolidated basis which may properly be classified as current assets in
conformity with GAAP; provided that inventory shall continue to be valued on a
last-in first-out basis and excluding non-current assets of Sunbelt which
become current assets under GAAP solely by reason of the Company's decision to
sell Sunbelt or its assets.
"Consolidated Current Liabilities" means, as at any date of
determination, the total liabilities of the Company and its Subsidiaries on a
consolidated basis which may properly be classified as current liabilities in
conformity with GAAP, but in no event shall accrued interest be included in
Consolidated Current Liabilities except for current portions of Indebtedness
evidenced by the Senior Securities and the Securities.
"Consolidated EBITDA" means, for any period, the sum (without
duplication) of (i) Consolidated Net Income, (ii) Consolidated Interest
Expense, (iii) provisions for taxes based on income, (iv) to the extent
Consolidated Net Income has been reduced thereby, amortization expense,
depreciation expense and other non-cash expenses, and (v) other non-cash items
reducing Consolidated Net Income less other non-cash items increasing
Consolidated Net Income, all as determined on a consolidated basis for Company
and its Subsidiaries in conformity with GAAP.
"Consolidated Interest Expense" means, for any period,
interest expense with respect to all outstanding Indebtedness of the Company
and its Subsidiaries for such period determined on a consolidated basis in
conformity with GAAP; provided that Consolidated Interest Expense shall not
include (i) letter of credit fees and commissions on letters of credit issued
by Bankers Trust Company (other than the letter of credit issued by Bankers
Trust Company to support the Sunbelt Bonds), (ii) amortization of original
issue discount or (iii) for purposes of Section 415, any interest not paid in
cash.
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<PAGE> 17
"Consolidated Net Income" means, for any period, the net
income (or loss) determined in conformity with GAAP of the Company and its
Subsidiaries on a consolidated basis, consolidated in conformity with GAAP for
such period taken as a single accounting period; provided that there shall be
excluded (i) the income (or loss) of any Person accrued prior to the date it
becomes a Subsidiary of the Company or is merged into or consolidated with the
Company or any of its Subsidiaries or that Person's assets are acquired by the
Company or any of its Subsidiaries, (ii) the income (or loss) related to (x)
any merger, consolidation, liquidation, winding up or dissolving of the Company
or any of its Subsidiaries or (y) any conveyance, sale, lease, sub-lease,
transfer or other disposition of all or any substantial part of the Company's
or any Subsidiary's business or rights related thereto, property (whether
leased or owned in fee) or fixed assets outside the ordinary course of business
and (iii) the income of any Subsidiary of the Company to the extent that the
declaration or payment of dividends or similar distributions by that Subsidiary
of that income is not at the time permitted by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary; and provided further,
that letter of credit fees and commissions on letters of credit issued by
Bankers Trust Company (other than the letter of credit issued by Bankers Trust
Company to support the Sunbelt Bonds) shall be treated as an operating expense
in calculating Consolidated Net Income.
"Consolidated Net Working Capital" means, as at any date of
determination, the excess of Consolidated Current Assets excluding cash and
Cash Equivalents over Consolidated Current Liabilities.
"Contingent Obligation," as applied to any Person, means any
direct or indirect liability, contingent or otherwise, of that Person with
respect to any Indebtedness, lease, dividend, letter of credit or other
obligation of another Person, including, without limitation, any such
obligation directly or indirectly guarantied, endorsed (otherwise than for
collection or deposit in the ordinary course of business), co-made or sold on a
recourse basis by that Person, or in respect of which that Person is otherwise
directly or indirectly liable, including, without limitation, any such
obligation for which that Person is in effect liable through any agreement
(contingent or otherwise) to purchase, repurchase or otherwise acquire such
obligation or any security therefor, or to provide funds for the payment or
discharge of such obligation, (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise), or to maintain the solvency or
any balance sheet item, level of income or other financial condition of the
obligor of such obligation, or to make payment for any products, materials or
supplies or for any transportation, services or lease regardless of the
non-delivery or non-furnishing thereof, or to provide collateral to secure
payment of such obligation, in any such case if the purpose or intent of such
agreement is to provide assurance that such obligation will be paid or
discharged, or that any agreements relating thereto will be complied with, or
that the holders of such obligation will be protected (in whole or in part)
against loss in respect thereof. The amount of any Contingent Obligation shall
be equal to the amount of the obligation so guarantied or otherwise supported.
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<PAGE> 18
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is
located at One State Street, New York, New York 10004, Attention: Corporate
Trust Administration.
"Current Market Value" means in respect of the Units on any
date of determination, the average of the daily market prices of Units for 20
consecutive Business Days commencing 30 days before such date of determination.
The daily market price for each such Business Day shall be (a) the last sale
price on such day on the principal stock exchange on which Units are then
listed or admitted to trading, (b) if no sale takes place on such day on any
such exchange, the average of the last reported closing bid and asked prices on
such day as officially quoted on any such exchange, (c) if Units are not then
listed or admitted to trading on any stock exchange, the average of the last
reported closing bid and asked prices on such day in the over-the-counter
market, as furnished by the National Association of Securities Dealers
Automatic Quotation System or the National Quotation Bureau, Inc., (d) if
neither such corporation at the time is engaged in the business of reporting
such prices, as furnished by any similar firm then engaged in such business, or
(e) if there is no such firm, the fair value of a Unit as determined in good
faith by the General Partner after consultation with an investment banking firm
of recognized national standing.
"Defaulted Interest" has the meaning specified in Section
307(f).
"Depository Institution" means a depository institution as
that term is defined at 12 U.S.C. Section 461(b)(1)(A), as amended, or any
successor provision.
"Distribution of Assets" means any distribution of assets of
the Company or any of its Subsidiaries of any kind or character, whether (i) a
payment, purchase or other acquisition or retirement for cash, property or
securities or (ii) by way of cancellation, forgiveness or offset of the
Securities against any Indebtedness owed by the Holders to the Company or any
of its Subsidiaries or (iii) payable or deliverable by reason of the payment of
any other Indebtedness of the Company or any of its Subsidiaries being
subordinated to the payment of the Securities and, in any case, shall include
any assets of any kind or character received by the Holders in connection with
the realization of security, if any, for the Securities.
"Disclosure Statement" means the Consent Solicitation and
Disclosure Statement dated October __, 1996 relating to the Plan.
"Effective Date" means the "Effective Date" as defined in the
Plan.
"Environmental Claim" means any written accusation,
allegation, notice of violation, claim, demand, abatement order or other order
or direction (conditional or otherwise) by any governmental authority or any
Person for any damage, including, without
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<PAGE> 19
limitation, personal injury (including sickness, disease or death), tangible or
intangible property damage, contribution, indemnity, indirect or consequential
damages, damage to the environment, nuisance, pollution, contamination or other
adverse effects on the environment, or for fines, penalties or restrictions, in
each case relating to, resulting from or in connection with Hazardous Materials
and relating to the Company, any of its Subsidiaries, any of their respective
Affiliates or any Facility.
"Environmental Laws" means all statutes, ordinances, orders,
rules, regulations or decrees and similar provisions having the force and
effect of law relating to (i) environmental matters, including, without
limitation, those relating to fines, injunctions, penalties, damages,
contribution, cost recovery compensation, losses or injuries resulting from the
Release or threatened Release of Hazardous Materials, (ii) the generation, use,
storage, transportation or disposal of Hazardous Materials, or (iii)
occupational safety and health, industrial hygiene, land use or the protection
of human, plant or animal health or safety, in any manner applicable to the
Company or any of its Subsidiaries or any or their respective properties,
including, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. Section 9601 et seq.), the
Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.), the
Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), the
Federal Water Pollution Control Act ( 33 U.S.C. Section 1251 et seq.), the
Clean Air Act (42 U.S.C. Section 7401 et seq.), the Toxic Substances Control
Act (15 U.S.C. Section 2601 et seq.), the Federal Insecticide, Fungicide and
Rodenticide Act (7 U.S.C. Section 136 et seq.), the Occupational Safety and
Health Act (29 U.S.C. Section 651 et seq.) and the Emergency Planning and
Community Right-to-Know Act (42 U.S.C. Section 11001 et seq.), each as amended
or supplemented, and any analogous future or present local, state and federal
statutes and regulations promulgated pursuant thereto, each as in effect as of
the date of determination.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate," as applied to any Person, means (i) any
corporation that is, or was at any time, a member of a controlled group of
corporations within the meaning of Section 414(b) of the Internal Revenue Code
of which that person is, or was at any time, a member, (ii) any trade or
business (whether or not incorporated) that is, or was at any time, a member of
a group of trades or businesses under common control within the meaning of
Section 414(c) of the Internal Revenue Code of which that Person is, or was at
any time, a member and (iii) any member of an affiliated service group within
the meaning of Section 414(m) or (o) of the Internal Revenue Code of which that
Person, any corporation described in clause (i) above or any trade or business
described in clause (ii) above is, or was at any time, a member.
"Event of Default" has the meaning specified in Section 501.
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<PAGE> 20
"Facilities" means any and all real property (including,
without limitation, all buildings, fixtures or other improvements located
thereon) now, hereafter or heretofore owned, leased, operated or used by the
Company or any of its Subsidiaries or any of their respective predecessors or
Affiliates.
"FASB" means Statements of the Financial Accounting Standards
Board.
"GAAP" means generally accepted accounting principles in the
United States as in effect from time to time.
"General Partner" means Huntway Managing Partner, L.P., a
Delaware limited partnership, and its permitted successors and assigns.
"Governmental Authorization" means any permit, license,
authorization, plan, directive, consent order or consent decree of or from any
federal, state or local governmental authority, agency or court.
"Hazardous Materials" means (i) any chemical, material or
substance at any time defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials," "extremely hazardous
waste," "restricted hazardous waste," "infectious waste," "toxic substances" or
any other formulations intended to define, list or classify substances by
reason of deleterious properties such as ignitability, corrosivity, reactivity,
carcinogenicity, toxicity, reproductive toxicity, "TCLP toxicity" or "EP
toxicity" or words of similar import under any applicable Environmental Laws;
(ii) any oil, petroleum, petroleum fraction or petroleum derived substance;
(iii) any drilling fluids, produced waters and other wastes associated with the
exploration, development or production of crude oil, natural gas or geothermal
resources; (iv) any flammable substances or explosives; (v) any radioactive
materials; (vi) asbestos in any form; (vii) urea formaldehyde foam insulation;
(viii) electrical equipment which contains any oil or dielectric fluid
containing levels of polychlorinated biphenyls in excess of fifty parts per
million; (ix) pesticides; and (x) any other chemical, material or substance,
exposure to which is prohibited, limited or regulated by any governmental
authority or which may or could pose a hazard to the health and safety of the
owners, occupants or any Persons in the vicinity of the Facilities.
"Grant" means to grant, bargain, sell, warrant, alienate,
remise, demise, release, convey, assign, transfer, mortgage, pledge, create and
grant a security interest in and right of set-off against, deposit, set over
and confirm.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
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<PAGE> 21
"Huntway General Partners" means the General Partner, the
Special General Partner, and any other Person made a general partner pursuant
to the terms of the Partnership Agreement.
"Indebtedness," without duplication, means (a) any liability
of any Person (i) for borrowed money, or under any reimbursement obligation
relating to a letter of credit or a bankers' acceptance, or (ii) evidenced by a
bond, note, debenture or similar instrument (including a purchase money
obligation given in connection with the acquisition of any businesses,
properties or assets of any kind, other than a trade payable or a current
liability arising in the ordinary course of business), or (iii) for the payment
of money with respect to a Capital Lease, or (iv) in respect of an interest
rate, currency, commodity or other hedge or protection arrangement; (b) any
guarantee with respect to Indebtedness (of the kind otherwise described in this
definition) of another Person; and (c) any amendment, supplement, modification,
deferral, renewal, extension or refunding of any liability of the types
referred to in clauses (a) and (b) above.
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof.
"Intercreditor Agreement" has the meaning set forth in the
Preliminary Statement of this Indenture.
"Interest Accrual Period" means with respect to any Interest
Payment Date, the period commencing on the immediately preceding Interest
Payment Date (or commencing on January 1, 1996 in the case of the first
Interest Payment Date) and ending on the day immediately preceding such
Interest Payment Date.
"Interest Payment Date" means December 31 of each year
commencing on December 31, [1996].
"Interest Rate" means the annual rate at which interest
accrues on the Securities, as specified in Section 301 and in the terms of the
Securities.
"Letter of Credit Facility" means the Letter of Credit and
Reimbursement Agreement, dated as of June 22, 1993, between the Company and
Bankers Trust Company, as amended by that certain First Amendment to Letter of
Credit and Reimbursement Agreement dated as of _____, 1996, and as such
agreement may be further amended from time to time and any successor,
substitute or replacement letter of credit facility including, without
limitation, any Replacement Letter of Credit Agreement.
"Lien" means any mortgage, pledge, hypothecation, assignment
for security, deposit arrangement, encumbrance, lien (statutory or other), or
preference, priority or other
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<PAGE> 22
security agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement), any Capital Lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement (other than
notice filings not perfecting a security interest) under the UCC or comparable
law of any jurisdiction in respect of any of the foregoing.
"Material Adverse Effect" means (i) a material adverse effect
upon the business, operations, properties, assets, condition (financial or
otherwise) or prospects of the Company and its Subsidiaries taken as a whole or
(ii) the impairment of the ability of the Company to perform, or of the Trustee
or the Holders to enforce the obligations represented by this Indenture and the
Securities.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security becomes due and payable as therein
or herein provided, whether pursuant to Section 307, at the Stated Maturity
thereof or by declaration of acceleration, call for redemption or otherwise.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA which is maintained for employees of the Company
or any ERISA Affiliate of the Company.
"Officers' Certificate" means a certificate signed on behalf
of the Company by two Authorized Officers.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, and who shall be reasonably acceptable to the
Trustee.
"Outstanding," when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation; and
(b) Securities, or portions thereof, for whose redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Securities to the
extent permitted by the terms hereof; provided that notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(c) Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there
shall have been presented to the Trustee proof satisfactory to it
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<PAGE> 23
that such Securities are held by a bona fide purchaser in whose hands
the Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee that (i) the pledgee has a right to so act with respect to such
Securities, (ii) the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor, and (iii) the
pledge is permitted hereunder.
"Partnership Agreement" means the Amended and Restated
Agreement of Limited Partnership of Huntway Partners, L.P. dated as of November
9, 1988, 1996, among the General Partner and each of the other partners named
therein, as amended through and including the date hereof and as further
amended or restated from time to time to the extent permitted under Section
419.
"Paying Agent" means any Person authorized by the Company to
pay the principal of or interest on any Securities on behalf of the Company.
"Pension Plan" means any employee plan which is subject to the
provisions of Title IV of ERISA and which is maintained for employees of the
Company or any ERISA Affiliate of the Company, other than a Multiemployer Plan.
"Permitted Encumbrances" means the following types of Liens:
(i) Liens (other than any Lien imposed by ERISA)
for taxes (including Liens for real property taxes), assessments or
governmental charges or governmental claims the payment of which is
not at the time required by Section 405;
(ii) Statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen and other Liens imposed
by law incurred in the ordinary course of business for sums not yet
delinquent or being contested in good faith, if such reserve or other
appropriate provision, if any, as shall be required by GAAP shall have
been made therefor;
(iii) Liens (other than any Lien imposed by ERISA)
incurred or deposits made in the ordinary course of business in
connection with workers'
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<PAGE> 24
compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed
money);
(iv) Any attachment or judgment Lien not in excess
of $100,000 (exclusive of any amount adequately covered by insurance
as to which the insurance company has acknowledged coverage) and any
other attachment or judgment lien unless the judgment it secures
shall, within 45 days after the entry thereof, not have been
discharged or execution thereof stayed pending appeal, or shall not
have been discharged within 45 days after the expiration of any such
stay;
(v) Leases or subleases granted to others not
interfering in any material respect with the business of the Company
or any of its Subsidiaries;
(vi) Easements, rights-of-way, restrictions, minor
defects or irregularities in title and other similar charges or
encumbrances not interfering in any material respect with the ordinary
conduct of the business of the Company or any of its Subsidiaries;
(vii) Liens arising from UCC financing statements
regarding leases permitted by this Agreement;
(viii) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of customs
duties in connection with the importation of goods;
(ix) Liens securing obligations not in excess of
$50,000 in aggregate outstanding amount arising from automobile and
personal property leases; and
(x) Liens arising from indebtedness permitted
under Section 406(e).
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Plan" means the Plan of Reorganization in the chapter 11 case
of the Company confirmed by the Honorable _____, United States Bankruptcy Judge
for the united States Bankruptcy Court for the District of ______, in case no.
_____, by order entered ______, 1996, as such plan has been amended prior to
the Effective Date.
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"Potential Event of Default" means a condition or event which,
after notice or lapse of time or both, would constitute an Event of Default if
that condition or event were not cured or removed within any applicable grace
or cure period.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 305 in lieu
of a lost, destroyed or stolen Security shall be deemed to evidence the same
debt as the lost, destroyed or stolen Security.
"Proceeding" means any suit in equity, action at law or other
judicial or administrative proceeding.
"Redeemable Securities" means any Securities that are by their
terms or otherwise required to be repurchased or redeemed prior to the Stated
Maturity of the Securities, or are repurchaseable or redeemable at the option
of the Company at any time prior to the Stated Maturity of the Securities.
"Redemption Date," when used with respect to any Securities to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date," for the interest payable on any
Interest Payment Date, means the December 1 (whether or not a Business Day)
immediately preceding such Interest Payment Date.
"Release" means any release, spill, emission, leaking,
pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal,
dumping, leaching or migration of Hazardous Materials into the indoor or
outdoor environment (including, without limitation, the abandonment or disposal
of any barrels, containers or other closed receptacles containing any Hazardous
Materials), or into or out of any Facility, including the movement of any
Hazardous Material through the air, soil, surface water, groundwater or
property.
"Replacement Letter of Credit Agreement" has the meaning
assigned thereto in the Collateralized Note Indenture.
"Representative" means, with respect to the Letter of Credit
Facility, Bankers Trust Company, and with respect to any Senior Indebtedness
arising under the Collateralized Note Indenture, the trustee named in the
Collateralized Note Indenture.
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"Reprise" means Reprise Holdings, Inc., a Texas corporation,
or any successor corporation, the sole general partner of the General Partner
and the sole general partner of the Special General Partner.
"Requisite Holders" means the Holders of a majority of the
Aggregate Outstanding Amount of Securities.
"Responsible Officer" when used with respect to the Trustee
means any officer (or other employee authorized to sign documents) assigned to
the Corporate Trust Office and also means, with respect to any particular
corporate trust matter, any other officer of the Trustee to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
"Restricted Junior Payment" means any distribution, direct or
indirect, whether in cash or other property on account of (i) the units of
ownership in the Company or any other partnership interest in the Company or
dividend, distribution or similar payment, redemption, purchase, retirement or
other acquisition for value, direct or indirect, of any units of ownership in
the Company or any other partnership interest in the Company and (ii) warrants,
options or other rights to acquire units of ownership in the Company in order
to retire, or to obtain the surrender of, such securities.
"Securities" means the Company's Junior Subordinated
Debentures Due 2005 issued and outstanding pursuant to this Indenture.
"Security Register" and "Security Registrar" have the meanings
specified in Section 304.
"Senior Indebtedness" means (i) all unreimbursed drawings with
respect to letters of credit issued or amended (or deemed issued or amended)
under the Letter of Credit Facility, interest accrued or accruing thereon both
before and after the date of filing a petition in any bankruptcy, insolvency,
arrangement, reorganization or receivership proceedings, whether or not allowed
as a claim in such case or proceeding (in accordance with and at the contract
rate), any commitment, commission, facility and other fees payable under the
Letter of Credit Facility and any other amounts due under the Letter of Credit
Facility, whether direct or indirect, absolute or contingent, secured or
unsecured, due or to become due, now existing or hereafter arising, (including,
without limitation, amounts for which Bankers Trust Company (or any successor
lender under the Letter of Credit Facility) is entitled to reimbursement
pursuant to the Letter of Credit Facility in respect of letters of credit or
otherwise) (and including any post-petition loans after the filing of a
petition in bankruptcy); (ii) the principal of the Senior Securities, interest
accrued or accruing thereon both before and after the date of filing a petition
in bankruptcy, insolvency, arrangement, reorganization or receivership
proceedings, whether or not allowed as a claim in such case or proceeding (in
accordance with and at the contract rate) and any and all other amounts due
under the Senior
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Securities and the Collateralized Note Indenture, whether direct or indirect,
absolute or contingent, secured or unsecured, due or to become due, now
existing or hereafter arising (including, without limitation, amounts for which
the holders of the Senior Securities or the trustees under the Collateralized
Note Indenture are entitled to reimbursement under the terms of the Senior
Securities or such indenture); (iii) any refundings, renewals or extensions of
any Indebtedness or other obligation described in clauses (i) and (ii) above
provided that the term of any such refunding, renewal or extension shall in no
event expire after December 31, 2005; and (iv) all expenses, indemnifications
and attorneys' fees for which the Company is now or hereafter becomes liable to
pay to any holder of Senior Indebtedness.
"Senior Securities" means the Senior Notes.
"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
such 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.
"Special General Partner" means Huntway Holdings, L.P., a
Delaware limited partnership.
"Special Record Date," for the payment of any Defaulted
Interest, means a date fixed by the Trustee pursuant to Section 307.
"Specified Senior Debt" means (a) any Senior Indebtedness at
any time arising under the Letter of Credit Facility and (b) any Senior
Indebtedness at any time arising under the Collateralized Note Indenture. For
purposes of this definition, a refinancing of any Specified Senior Debt shall
be treated as Specified Senior Debt only if it ranks or would rank pari passu
with the Indebtedness refinanced.
"Stated Maturity," when used with respect to any Security or
any installment of interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security (disregarding any
mandatory redemption payments required by the terms of this Indenture) or such
installment of interest is due and payable (or accrued and added to principal,
as herein provided).
"Subordinated Indebtedness" means all Indebtedness of the
Company or its Subsidiaries to the Holders now or hereafter existing (whether
created directly or acquired by
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assignment or otherwise), including, but not limited to, all Indebtedness of
the Company pursuant to this Indenture and the Securities, and interest thereon
and other amounts payable in respect thereof.
"Subsidiary" means any corporation, association, partnership
or other business entity of which more than 50% of the total voting power of
shares of stock or partnership interests entitled to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by any Person or one or more of the other Subsidiaries
of that Person or a combination thereof, and references herein to Subsidiaries
of the Company, the Company and its Subsidiaries or other similar references
shall include Sunbelt unless otherwise excluded.
"Sunbelt" means Sunbelt Refining Company, L.P., a Delaware
limited partnership, the sole general partner of which is the Company.
"Sunbelt Bonds" means the $8,600,000 aggregate principal
amount of Variable/Fixed Rate Demand Industrial Development Revenue Bonds,
Series 1988 (Sunbelt Refining Company, L.P. Project) issued pursuant to that
certain Indenture of Trust, dated as of August 1, 1988, between The Industrial
Development Authority of the County of Pinal and Dai-Ichi Kangyo Bank of
California.
"Sunbelt General Partner" means the Company, the Sunbelt
Managing General Partner and any other Person made a general partner pursuant
to the terms of the Sunbelt Partnership Agreement.
"Sunbelt Managing General Partner" means the general partner
of Sunbelt which (i) owns at least 51% of the profit participation percentages
of Sunbelt, and (ii) exercises management powers with respect to Sunbelt.
"Sunbelt Partnership Agreement" means that certain agreement
of limited partnership dated as of October 5, 1988 between the Sunbelt General
Partner and the limited partners named therein, as such agreement may be
amended from time to time to the extent permitted by Section 419, or otherwise
with the consent of the Requisite Holders, which consent in such other cases
will not be unreasonably withheld.
"Support Agreement" means that certain letter agreement dated
July 22, 1996 by and among Huntway Partners, L.P., Bankers Trust Company,
Huntway Holdings, L.P., Massachusetts Mutual Life Insurance Company, Mellon
Bank, N.A., Oppenheimer & Co., Inc., First Chicago Equity Corporation and
Madison Dearborn Partners III.
"Trust Estate" has the meaning specified in Section 422.
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"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed, except as
provided in Section 805.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument, until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"UCC" means the Uniform Commercial Code of the States of New
York, California or Arizona, as the context requires.
"Unit Valuation Date" means (i) with respect to the first
Interest Payment Date following the Closing Date, a date selected by the
Company that is not less than 15 days before and not more than 30 days before
such Interest Payment Date and (ii) with respect to each Interest Payment Date
thereafter, December 1, 1997 and each 12 month anniversary thereof.
"Units" has the meaning specified in Section 501(e).
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee a Compliance Certificate stating that all conditions
precedent, if any, provided for in this Indenture (including any covenants the
compliance with which constitutes a condition precedent) relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that, in the case of any such application or request as
to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation, if any, upon which the statements or
opinions contained in such certificate or opinion are based;
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(c) a statement that, in the opinion of each such
individual, he or she has made such examination or investigation as is
necessary to enable him or her to express an informed opinion as to
whether or not such covenant or condition has been complied with and,
in the case of any statement regarding compliance with Section 415 of
this Indenture, detailed computations in support of the statements
made; and
(d) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the
Company may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless the
Authorized Officer knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to the matters
upon which the certificate or opinion is based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
Authorized Officer of the Company stating that the information with respect to
such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or
execute two or more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by agent
duly appointed in writing; and, except as herein or therein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced
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thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 601) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other action by the Holder of any Security shall
bind every future Holder of the same Security or Holder of every Security
issued upon the transfer thereof or in exchange therefor or in lieu thereof, in
respect of anything done, suffered or omitted to be done by the Trustee, any
Paying Agent or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
Section 105. Notices to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed, in writing, to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Administration (with a copy
thereof to the Company at the address specified in Section 105(b)), or
at any other address previously furnished in writing to the Company
and each Holder by the Trustee; or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose (except as provided in Section 501(b))
hereunder if in writing and mailed, first-class postage prepaid, to
the Company addressed to it at 25129 The Old Road, Suite 322, Newhall,
California 91381, Attention: Chief Financial Officer, or at any other
address previously furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at its address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest
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date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Any notice when
mailed to a Holder in the aforesaid manner shall be conclusively deemed to have
been received by such Holder whether or not actually received by such Holder.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause, it shall be impracticable to mail notice of any
event as required by any provision of this Indenture, then any method of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
Section 107. Conflict with Trust Indenture Act.
From such time as the Trust Indenture Act is applicable
hereto, if any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, except as
expressly set forth herein and therein, shall give to any Person (other than
the parties hereto and their successors
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hereunder, any Paying Agent and the Holders) any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 112. Governing Laws.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal payable in cash need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity; provided, however, that interest shall accrue with respect to
any such principal payment (at the rate applicable to the Securities during the
period of such extension as herein provided) for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case may be,
to the next succeeding Business Day, and shall be payable on such next
succeeding Business Day.
Section 114. Amendment and Restatement.
This Indenture amends, restates and supersedes in its entirety
the Junior Subordinated Debenture Indenture, dated as of June 22, 1993, as
amended, between the Company and the Trustee.
Section 115. Obligations Non-recourse.
Except as may be otherwise agreed in writing, the Huntway
General Partners shall not be liable for the obligations of the Company under
this Indenture and the Securities.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.
The Securities and the Trustee's certificate of authentication
shall be in substantially the forms set forth in this Article and attached
hereto, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
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Authorized Officer of the Company executing such Securities, as evidenced by
his or her execution of the Securities. Any portion of the text of any
Security may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Security. The definitive Securities shall be
printed, lithographed or engraved or produced by any combination of these
methods or may be produced in any other manner, all as determined by the
Authorized Officer of the Company executing such Securities, as evidenced by
his or her execution of such Securities.
Section 202. Forms of Securities and Certificate of
Authentication.
The Securities shall be in substantially the form attached
hereto as Exhibit A, and the form of the Trustee's certificate of
authentication shall be in the form provided in such Exhibit, which is
incorporated in, and made a part of, this Indenture.
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms.
The aggregate original principal amount of Securities which
may be authenticated and delivered under this Indenture is limited to
$2,070,000, except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities pursuant to
Section 304, 305, 307, 806 or 908. The Securities shall be known and
designated as the "Junior Subordinated Debentures Due 2005" of the Company.
Their Stated Maturity shall be December 31, 2005, and they shall bear interest
prior to default, from the later of January 1, 1996 or the most recent date
through which interest has been paid thereon at a rate of 12% per annum. The
interest rate in effect with respect to the Securities is subject to increase
as provided in Sections 503 and 515. The Securities shall be redeemable as
provided in Article Nine.
Section 302. Denominations.
The Securities shall be issuable in registered form in minimum
denominations (except for Secondary Securities) of $50,000 and integral
multiples of $100,000 in excess thereof and one or more Securities in such
denomination as may be necessary to represent the remainder of the initial
aggregate principal amount of the Securities. In each case, such principal
amounts shall be expressed in terms of the principal amounts thereof at the
Closing Date.
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Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
an Authorized Officer of the Company. The signature of such Authorized Officer
on the Securities may be manual or facsimile. Securities bearing the manual or
facsimile signature of any individual who at the time of execution of the
Securities was authorized to act on behalf of the Company in executing
instruments shall bind the Company, notwithstanding that such individual may
have ceased to be authorized to act in such capacity prior to the
authentication and delivery of such Securities or did not possess such
authorization at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities; and the Trustee in
accordance with such Company Order shall authenticate and deliver such
Securities as provided in this Indenture and not otherwise.
Each Security authenticated and delivered by the Trustee upon
a Company Order on the Closing Date shall be dated as of the Closing Date. All
other Securities that are authenticated after the Closing Date for any other
purpose under this Indenture shall be dated the date of their authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein duly executed by the Trustee by manual signature of an
authorized signatory, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder.
Section 304. Registration; Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency designated pursuant to Section 402 being herein
sometimes referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby initially appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided. Upon any
resignation or removal of the Security Registrar, the Company shall promptly
appoint a successor with the approval of the Requisite Holders or, in the
absence of such approval, assume the duties of Security Registrar until a
successor shall have been approved, and notify the Holders of such action.
If a Person other than the Trustee is appointed by the Company
as Security Registrar, the Company will give the Trustee prompt written notice
of the appointment of such
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Security Registrar and of the location, and any change in the location, of the
Security Register, and the Trustee shall have the right to inspect the Security
Register at all reasonable times and to obtain copies thereof and the Trustee
shall have the right to rely upon a certificate executed on behalf of the
Security Registrar by an Authorized Officer thereof as to the names, addresses,
wiring instructions and taxpayer identification numbers of the Holders of the
Securities and the principal amounts and numbers of such Securities.
Upon surrender for registration of transfer of any Security at
the office or agency of the Company designated pursuant to Section 402, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
any authorized denomination or denominations, of a like aggregate principal
amount.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denomination or denominations, of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of
transfer, or for exchange or redemption shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange or redemption of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Sections 806 or 908 not involving
any transfer.
The Company shall not be required (a) to issue, register the
transfer of or exchange any Security during a period beginning at the opening
of business 15 days before the mailing of a notice of redemption of the
Securities selected for redemption under Section 904 and ending at the close of
business on the day of such mailing, or (b) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of Securities being redeemed in part.
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Section 305. Mutilated, Destroyed, Lost and Stolen
Securities.
If (a) any mutilated Security is surrendered to the Trustee,
or (b) the Company and the Trustee receive evidence to their satisfaction of
the destruction, loss or theft of any Security, and there is delivered to the
Company and the Trustee such security or indemnity as may be required by them
to save each of them harmless, then, in the absence of notice to the Company or
the Trustee that such Security has been acquired by a bona fide purchaser, the
Company shall execute and upon the Company's written request the Trustee shall
authenticate and deliver, in exchange for any such mutilated Security or in
lieu of any such destroyed, lost or stolen Security, a new Security of like
tenor and principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Securities under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 306. Persons Deemed Owners.
Prior to, and at the time of, due presentment for registration
of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name any Security is registered as the
owner of such Security for the purpose of receiving payment of principal of and
(subject to Section 307) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
Section 307. Payment of Principal and Interest; Preservation
of Rights.
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(a) The Securities shall accrue interest (prior to
default) during each Interest Accrual Period at the Interest Rate specified in
Section 301, and until payment in full of the principal amount of and all
accrued interest (including Secondary Securities, as defined in the
Collateralized Note Indenture, issued with respect thereto) on the Senior
Securities, accrued interest on each Security (including, without limitation,
Default Interest) shall not be paid in cash but shall instead be paid solely
through the issuance on each Interest Payment Date of Units with an aggregate
Current Market Value measured as of the Unit Valuation Date immediately
preceding such Interest Payment Date equal to the amount of accrued but unpaid
interest. The Company shall notify the Trustee in writing prior to any
redemption in full of the Senior Notes. After the principal amount of and
accrued interest (including Secondary Securities, as defined in the
Collateralized Note Indenture, issued with respect thereto) on the Senior
Securities has been paid in full, interest accrued on each Security shall be
due and payable in cash on each Interest Payment Date until payment in full of
each Security. If the final payment in full of the principal amount of and all
accrued interest (including Secondary Securities, as defined in the
Collateralized Note Indenture, issued with respect thereto) on the Senior
Securities does not fall on an Interest Payment Date, then interest accrued to
the date of such payment shall be paid through issuance of Units with an
aggregate Current Market Value measured as of the Unit Valuation Date
immediately preceding such Interest Payment Date and interest accrued after
such date shall be paid in cash, with such issuance and payment to be made on
the next Interest Payment Date. Each issuance of Units in lieu of the payment
interest in cash on the Securities shall be made pro rata with respect to the
Outstanding Securities. To the extent lawful and enforceable, interest on
Defaulted Interest and interest on the principal amount of Securities shall
accrue at the applicable Interest Rate, as increased pursuant to Sections 503
and 515.
(b) The principal of the Securities shall be payable in
accordance with subsection (c) below but in no event later than the Stated
Maturity thereof as specified in Section 301 unless the unpaid principal of
such Securities becomes due and payable at an earlier date by declaration of
acceleration or otherwise. The Company shall not pay any principal payments
with respect to the Securities until the accrued interest (including Secondary
Securities, as defined in the Collateralized Note Indenture) on and the
principal amount of the Senior Securities has been paid in full.
(c) On the Stated Maturity, the Company shall pay to the
Holders the accrued and unpaid interest on and the principal amount of the
Outstanding Securities. Payments made toward the Outstanding principal amount
of the Securities pursuant to this subsection (c) shall be applied ratably
without preference or priority of any kind among such Securities.
(d) Except as set forth above with respect to payment by
issuance of Units, interest and principal on each Security shall be payable by
wire transfer to a United States dollar account maintained by the Holder of
such Security at a Depository Institution in the United States as reflected on
the Security Register. Interest and principal on each Security
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shall be paid by the Paying Agent from the amounts made available therefor by
the Company. In the case of the Maturity of a Security, the Trustee, in the
name and at the expense of the Company, shall notify the Person entitled
thereto at its address as it appears on the Security Register that such
Security is to be paid in full. Such notice shall be mailed as soon as
practicable, and in any event no later than the tenth day prior to the Maturity
of such Security and shall specify the place where such Security may be
presented and surrendered for final payment. The Company, with the prior
consent of the Trustee, may, but shall not be obligated to, adopt any other
method of payment requested by a Holder.
(e) Subject to Section 307(a), the Holders as of the
Regular Record Date in respect of an Interest Payment Date shall be entitled to
the interest accrued and payable on such Interest Payment Date. Payments of
principal (and interest, in cases where the amount of interest which is being
paid is less than the amount of interest which has accrued) to such Holders
shall be made in the proportion that the unpaid principal balance of the
Securities registered in the name of each such Holder on such Regular Record
Date bears to the Aggregate Outstanding Amount of all Securities on such
Regular Record Date. Any such payments that are returned to the Paying Agent
shall be held for payment as herein provided at the office or agency of the
Company to be maintained as provided in Section 402.
(f) Any interest on any Security which is payable, but is not
punctually paid or duly provided for (including, without limitation, provision
by issuance of Units), on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the Regular
Record Date by virtue of having been such Holder; and such Defaulted Interest
may, unless the Trustee shall have made demand therefor as provided in the
Securities and Section 503 hereof and fixed a Special Record Date for payment
thereof, be paid by the Company (subject to Section 307(a)), at its election in
each case, as provided in subsection (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities (or
their respective Predecessor Securities) are registered at the close
of business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money (if payment of interest on the
Securities in Cash is at such time permitted hereunder) equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as provided in this subsection.
The Company shall be entitled to any interest earned on the amounts so
deposited. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment
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and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date. In the name and at the expense
of the Company, the Trustee shall cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder at its address as
it appears in the Security Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities (or their respective Predecessor Securities) are
registered on such Special Record Date and shall no longer be payable
pursuant to the following subsection (2).
(2) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be
listed and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this subsection, such payment shall be deemed
practicable by the Trustee; provided that any such payment made before
payment in full of the principal amount of and all accrued interest
(including Secondary Securities, as defined in the Collateralized Note
Indenture) on the Senior Securities is made solely with Units and not
in cash.
The provisions of this Section 307(f) shall only become operative at such time
as this Indenture becomes subject to the requirements of the Trust Indenture
Act.
(g) Not later than 10 days after each Unit Valuation Date, the
Company shall deliver to the Trustee and the Holders a certificate showing the
calculation of the Current Market Value for Units on such date.
Section 308. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled
by it. The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee shall be disposed of as directed by a
Company Order.
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Section 309. Computation of Interest.
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months and the actual number of days which have
elapsed.
ARTICLE FOUR
COVENANTS
Section 401. Payment of Principal and Interest.
The Company will duly and punctually pay the principal of and
interest on the Securities in accordance with the terms of the Securities and
this Indenture.
Section 402. Maintenance of Office or Agency.
The Company will maintain an office or agency where Securities
may be presented or surrendered for payment, where Securities may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities may be served. The
office of the Trustee at the Corporate Trust Office of the Trustee shall be
such office or agency of the Company.
Section 403. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal of or interest on any of
the Securities, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal or interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee in writing of its action
or failure to so act.
If the Company is not the Paying Agent, the Company will, on
or before each due date of the principal of or interest on any Securities,
which by the terms of this Indenture require a cash payment, deposit with a
Paying Agent a sum in same day funds sufficient to pay the principal or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee in writing of such
action or any failure to so act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
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(a) hold all sums held by it for the payment of the
principal of or interest on Securities in trust for the benefit of the
persons entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities) in the making of any
payment of principal or interest; and
(c) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
To the extent permitted by the terms of this Indenture, the
Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent and the Company shall be released from all further liability with respect
to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of or
interest on any Security and remaining unclaimed for two years after such
principal or interest has become due and payable shall be paid to the Company,
or (if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in New York City, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such notification or publication, any unclaimed
balance of such money then remaining will be repaid to the Company. The
Trustee or Paying Agent shall not be required to invest funds held by it unless
requested by the Company in writing. The Trustee shall not be responsible for
any losses on such investment.
Section 404. Maintenance of Existence; Compliance with Laws.
The Company will do or cause to be done all things necessary
to preserve and keep in full force and effect its partnership existence and the
corporate or partnership existence, as the case may be, of each Subsidiary and
all rights, privileges, franchises, permits, licenses, patents, patent rights
and other authority which if not so preserved or kept in full force and effect
would have a Material Adverse Effect, provided that the foregoing
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provisions of this Section 404 shall not prevent any transaction permitted by
Section 419. The Company and its Subsidiaries will at all times conduct their
business in an orderly manner without voluntary interruption and shall exercise
all reasonable diligence in order to comply with the requirements of all
material applicable laws, rules, regulations, licenses, permits and orders of
any governmental authority, noncompliance with which could materially and
adversely affect the business, properties, assets, operations or condition
(financial or otherwise) of the Company and its Subsidiaries taken as a whole.
Section 405. Payment of Taxes and Other Claims.
(a) The Company will, and will cause each of its Subsidiaries
to, pay all taxes, assessments and other governmental charges imposed
upon it or any of its properties or assets or in respect of any of its
franchises, business, income or property before any penalty or
interest accrues thereon, and all claims (including, without
limitation, claims for labor, services, material and supplies) of sums
which have become due and payable and which by law have or may become
a Lien upon any of its properties or assets, prior to the time when
any penalty or fine shall be incurred with respect thereof; provided
that no such charge or claim need be paid if being contested in good
faith by appropriate Proceedings promptly instituted and diligently
conducted and if such reserve or other appropriate provision, if any,
as shall be required in conformity with GAAP shall have been made
therefor.
(b) The Company will not, nor will it permit any of its
Subsidiaries to, file or consent to the filing of any consolidated
income tax return with any Person (other than its Subsidiaries and
Reprise).
Section 406. Limitation on Indebtedness.
After the Company has paid in full the principal of and all
accrued interest (including Secondary Securities, as defined in the
Collateralized Note Indenture issued with respect thereto) on the Senior
Securities, the Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly, create, incur, assume, guarantee, or otherwise
become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(a) The Company may become and remain liable with respect
to the Letter of Credit Facility;
(b) Sunbelt may remain liable with respect to the Sunbelt
Bonds so long as it continues to own the property described in Exhibit
A to the Collateralized Note Indenture as the Pinal Property;
(c) The Company and its Subsidiaries may become and
remain liable with respect to the Securities;
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(d) The Company and its Subsidiaries may become and
remain liable with respect to intercompany loans and advances among
the Company and its wholly-owned Subsidiaries, between the Company and
Sunbelt, in an aggregate amount not to exceed $100,000 and all
intercompany loans and advances between the Company and any Subsidiary
reflected on the balance sheet of the Company dated December 31, 1995;
(e) The Company and its Subsidiaries may become and
remain liable with respect to additional letters of credit issued to
support crude oil purchases and exchanges;
(f) The Company and its Subsidiaries may become and
remain liable with respect to hedging agreements relating to the price
of crude oil in an amount not to exceed $1,500,000;
(g) The Company may become and remain liable with respect
to Indebtedness the proceeds of which are used solely to pay for
capital expenditures permitted under clause (a) of Section 418;
(h) The Company may become and remain liable with respect
to unsecured Indebtedness in an aggregate principal amount not to
exceed $2,000,000; provided that all such Indebtedness is repaid in
full by December 31, 1996;
(i) After (i) the cancellation or expiration of all
commitments to issue, renew or extend letters of credit under the
Letter of Credit Facility (other than with respect to the IDB Letter
of Credit), (ii) the cancellation or termination of all letters of
credit issued under the Letter of Credit Facility (other than the IDB
Letter of Credit) and (iii) the payment in full of all amounts owed
under or in respect of all letters of credit issued under the Letter
of Credit Facility (other than the IDB Letter of Credit), the Company
may become and remain liable with respect to the Replacement Letter of
Credit Agreement;
(j) in addition to Indebtedness permitted by clauses (a)
through (i) above, the Company and its Subsidiaries may become and
remain liable with respect to Indebtedness in an amount not to exceed
$500,000 in the aggregate at any one time.
Section 407. Limitation on Restricted Junior Payments.
After the Company has paid in full the principal of and all
accrued interest (including Secondary Securities, as defined in the
Collateralized Note Indenture issued with respect thereto) on the Senior
Securities, the Company and its Subsidiaries will not, directly or indirectly,
declare, order, pay, make or set apart any sum for any Restricted Junior
Payment prior to the payment in full of the principal of and interest on the
Securities.
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Section 408. Limitation on Restrictions Affecting
Subsidiaries.
After the Company has paid in full the principal of and all
accrued interest (including Secondary Securities, as defined in the
Collateralized Note Indenture issued with respect thereto) on the Senior
Securities, the Company will not, and will not permit any Subsidiary to, create
or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any Subsidiary to (a)
pay dividends or make any other distribution on any of such Subsidiary's
capital stock or partnership interests owned by the Company or any Subsidiary
of the Company, (b) pay any Indebtedness owed to the Company or any other
Subsidiary of the Company, (c) make loans or advances to the Company or any
other Subsidiary of the Company or (d) transfer any of its property or assets
to the Company or any other Subsidiary of the Company.
Section 409. Financial Statements and Other Reports.
The Company will maintain a system of accounting established
and administered in accordance with past sound business practices to permit
preparation of financial statements in conformity with GAAP. The Company will
deliver to the Trustee and the Holders:
(a) as soon as practicable, and in any event within 30
days after the end of each of the first two calendar months of each
quarter (except 50 days in the case of January and 40 days in the case
of February) in each year, consolidated and consolidating balance
sheets of the Company and its Subsidiaries as at the end of such
period and the related consolidated (and, as to statements of income
only, consolidating) statements of income, cash flows and partners'
equity of the Company and its Subsidiaries for such month and for the
period from the beginning of the current fiscal year to the end of
such month, setting forth in each case in comparative form the
consolidated figures for the corresponding periods of the previous
fiscal year, all in reasonable detail and certified by the chief
financial officer of the Company that they fairly present the
financial condition of the Company and its Subsidiaries as at the
dates indicated and the results of their operations for the periods
indicated, subject to changes resulting from audit and normal year-
end adjustment;
(b) as soon as practicable, and in any event within 45
days after the end of each of the first three quarters in each year,
consolidated and consolidating balance sheets of the Company and its
Subsidiaries as at the end of such period and the related consolidated
(and, as to statements of income only, consolidating) statements of
income, cash flows and partners' equity of the Company and its
Subsidiaries for such month and for the period from the beginning of
the current fiscal year to the end of such quarter, setting forth in
each case in comparative form the consolidated figures for the
corresponding periods of the previous fiscal year, all in reasonable
detail and certified by the chief financial officer of the Company
that they fairly present the financial condition of the Company and
its Subsidiaries as at the dates indicated and the
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results of their operations for the periods indicated, subject to
changes resulting from audit and normal year-end adjustment;
(c) as soon as practicable, and in any event within 90
days after the end of each year, consolidated and consolidating
balance sheets of the Company and its Subsidiaries as at the end of
such year and the related consolidated (and, as to statements of
income only, consolidating) statements of income, cash flows and
partners' equity of the Company and its Subsidiaries for such year
with a report thereon by the independent public accountants of the
Company, setting forth in each case in comparative form the
consolidated figures for the previous fiscal year, all in reasonable
detail and certified by the chief financial officer of the Company
that they fairly present the financial condition of the Company and
its Subsidiaries as at the dates indicated and the results of their
operations for the periods indicated;
(d) As soon as practicable, and in any event within 30
days after the end of January and February of each year, preliminary
consolidated and consolidating balance sheets of the Company as at the
end of such period and the related preliminary consolidated and
consolidating statements of income of the Company and its subsidiaries
for such month, setting forth in each case in comparative form the
consolidated figures for the corresponding periods of the previous
fiscal year;
(e) together with each delivery of financial statements
of the Company and its Subsidiaries pursuant to subsections (a), (b)
and (c) above, (i) an Officers' Certificate stating that the signers
have reviewed the terms of this Indenture and the Securities and have
made, or caused to be made under their supervision, a review in
reasonable detail of the transactions and condition of the Company and
its Subsidiaries during the accounting period covered by such
financial statements and that such review has not disclosed the
existence at the end of such accounting period, and that the signers
do not have knowledge of the existence as at the date of the Officers'
Certificate, of any condition or event which constitutes an Event of
Default or Potential Event of Default, or, if any such condition or
event existed or exists, specifying the nature and period of existence
thereof and what action the Company has taken, is taking and proposes
to take with respect thereto; and (ii) a Compliance Certificate
demonstrating in reasonable detail compliance at the end of each
applicable accounting period with the restrictions contained in
Section 415, and specifying the aggregate amount of interest paid (in
cash and in kind) or accrued by the Company and its Subsidiaries, and
the aggregate amount of depreciation and amortization charged on the
books of the Company and its Subsidiaries, for such accounting period;
provided that a Compliance Certificate need not be delivered with
delivery of financial statements of the Company and its Subsidiaries
pursuant to subsection (a) above;
(f) promptly upon receipt thereof, copies of all reports
submitted to the Company or its Subsidiaries by independent public
accountants in connection with each
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annual, interim or special audit of the financial statements of the
Company and its Subsidiaries made by such accountants, including,
without limitation, the management letter submitted by such
accountants in connection with their annual audit;
(g) promptly upon their becoming available, copies of all
financial statements, reports, notices and proxy statements, if any,
sent or made available generally by the Company to its security
holders or by any Subsidiary of the Company to its security holders
other than the Company or another Subsidiary, of all regular and
periodic reports (including, Forms 10-Q, 10-K and 8-K), all
registration statements and prospectuses, if any, and all other
information and documents filed by the Company or any of its
Subsidiaries with any securities exchange or with the Commission or
any governmental authority succeeding to any of its functions, and of
all press releases and other statements made available generally by
the Company or any Subsidiary of the Company to the public concerning
material developments in the business of the Company and its
Subsidiaries;
(h) promptly upon any officer of the Company obtaining
knowledge (i) of any condition or event which constitutes an Event of
Default or Potential Event of Default, (ii) that any Person has given
any notice to the Company or any Subsidiary of the Company or taken
any other action with respect to a claimed default or event or
condition of the type referred to in Section 501(d), (iii) of a
material adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of the Company
and its Subsidiaries, taken as a whole, an Officers' Certificate
specifying the nature and period of existence of any such condition or
event, or specifying the notice given or action taken by such holder
or Person and the nature of such claimed default, Event of Default,
Potential Event of Default, or event or condition, and what action the
Company or such Subsidiary, as the case may be, has taken, is taking
and proposes to take with respect thereto, or (iv) that any holder of
a Lien permitted by Section 410(f) has given any notice to the Company
or any Subsidiary of the Company or taken any other action with
respect to such Lien that could result in the foreclosure or
enforcement of such Lien against the assets of the Company or any
Subsidiary;
(i) promptly upon any officer of the Company obtaining
knowledge of (i) the institution of, or threat of, any action, suit,
proceeding, governmental investigation or arbitration against or
materially affecting the Company or any of its Subsidiaries or any
property of the Company or any of its Subsidiaries, which constitutes
a claim with a likelihood of success and which has not previously been
disclosed by the Company to the Holders, or (ii) any material
development in any such action, suit, proceeding, governmental
investigation or arbitration, which if adversely determined, might
materially and adversely affect the business, operations, properties,
assets or condition (financial or otherwise) of the Company and its
Subsidiaries, taken as a whole, the Company shall promptly given
notice thereof to the Holders and provide such other
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information as may be reasonably available to the Company to enable
the Holders and their counsel to evaluate such matters;
(j) promptly upon becoming aware of the occurrence of any
(i) Termination Event, or (ii) "prohibited transaction," as such terms
are defined in Section 4975 of the Internal Revenue Code, in
connection with any Pension Plan or any trust created thereunder, a
written notice specifying the nature thereof, what action the Company
has taken, is taking or proposes to take with respect thereto and,
when known, any action taken or threatened by the Internal Revenue
Service or the Pension Benefit Guaranty Corporation with respect
thereto;
(k) with reasonable promptness copies of (i) all notices
received by the Company or any of its ERISA Affiliates of the Pension
Benefit Guaranty Corporation's intent to terminate any Pension Plan or
to have a trustee appointed to administer any Pension Plan; (ii) each
Schedule B (Actuarial Information) to the annual report (Form 5500
Series) filed by the Company or any of its ERISA Affiliates with the
Internal Revenue Service with respect to each Pension Plan; and (iii)
all notices received by the Company or any of its ERISA Affiliates
from a Multiemployer Plan sponsor concerning the imposition or amount
of withdrawal liability pursuant to Section 4202 of ERISA;
(l) as soon as practicable, and in any event within 10
days after the end of each month, a report setting forth a list of
letters of credit outstanding, the issue date, the expiration date,
the beneficiary and the use of each letter of credit outstanding as of
such date;
(m) on or before October 15 of each year draft, and on or
before October 31 of each year final, projections for the Company for
the next year containing balance sheets, income statements and cash
flow statements for the year and for each month of the year;
(n) at least 30 days prior to the end of each quarter, a
projected statement of weekly cash flows for the next quarter; and
(o) with reasonable promptness, such other information
and data with respect to the Company or its Subsidiaries as from time
to time may be reasonably requested by the Trustee or the Holders.
Section 410. Limitation on Liens.
After the Company has paid in full the principal of and all
accrued interest (including Secondary Securities, as defined in the
Collateralized Note Indenture, issued with respect thereto) on the Senior
Securities, the Company will not, and will not permit any of its
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Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any of its properties or assets or the
properties or assets of any of its Subsidiaries, respectively, whether now
owned or hereafter acquired, or any income or profits therefrom, except:
(a) Permitted Encumbrances;
(b) Liens securing obligations under the Collateralized Note
Indenture;
(c) Liens securing obligations under the Letter of Credit
Facility;
(d) Liens on cash collateral in an aggregate amount not
exceeding $2,000,000 at any one time securing letters of credit
permitted by Section 406(e);
(e) Liens on assets acquired with the proceeds of
Indebtedness permitted under Section 406(c) to secure the payment of
such Indebtedness;
(f) If the Company shall be permitted to become liable
with respect to the Replacement Letter of Credit Agreement, Liens
securing obligations under the Replacement Letter of Credit Agreement;
and
(g) Liens which have previously been consented to by
Requisite Holders.
Neither the Company nor any of its Subsidiaries will enter
into any agreement prohibiting the creation or assumption of any Lien upon any
of their properties or assets, whether now owned or hereafter acquired, to
secure payment of the Securities other than pursuant to the Collateralized Note
Indenture.
Section 411. Restrictions on Acquisition of Subsidiaries.
After the Securities have been secured by a Lien on the Trust
Estate in accordance with Section 422, the Company will not, nor will it permit
any Subsidiary to, acquire or form any Subsidiaries without the express prior
written consent of the Requisite Holders, which consent shall not be
unreasonably withheld; provided that in all cases after such time the Holders
shall obtain a Lien with respect to the stock and assets of such Subsidiaries.
Reference to "Subsidiaries" in this Indenture shall not be applicable until any
such Subsidiaries are formed.
Section 412. Inspection.
The Company will permit authorized representatives designated
by any of the Holders, at the expense of such Holder, to visit and inspect
properties of the Company or any of its Subsidiaries, including its and their
financial and accounting records, and to make copies
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and take extracts therefrom, and to discuss its and their affairs, finances and
accounts with its and their officers and independent public accountants, all
upon reasonable notice to the Company and at such reasonable times during
normal business hours and as often as may be reasonably requested.
Section 413. Maintenance of Properties and Insurance.
The Company will cause all material properties owned by or
leased to it or any Subsidiary and used or useful in the conduct of its
business or the business of such Subsidiary to be maintained and kept in normal
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary, so that the business carried on in connection therewith may be
properly and advantageously conducted at all times. The Company will provide
or cause to be provided, for itself and the Subsidiaries, insurance against
loss or damage of the kinds customarily insured against by entities similarly
situated and owning like properties, including, but not limited to, products
liability insurance and public liability insurance, with reputable insurers or
with the government of the United States of America or an agency or
instrumentality thereof, in such amounts with such deductibles and by such
methods as shall be customary for entities similarly situated in the industry.
Section 414. Transactions with Partners and Affiliates.
After the Company has paid in full the principal of and all
accrued interest (including Secondary Securities, as defined in the
Collateralized Note Indenture issued with respect thereto) on the Senior
Securities, the Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly, enter into or permit to exist any transaction
(including, without limitation, the purchase, sale, lease or exchange of any
property or the rendering of any service) with any holder of 5% or more of the
total partnership interests in the Company, or with an Affiliate of the Company
or of any such holder, on terms that are less favorable to the Company or that
Subsidiary, as the case may be, than those which might be obtained at the time
from Persons who are not such a holder or Affiliate; provided that the
foregoing restriction shall not apply to (i) transactions with a partner or its
Affiliate pursuant to or permitted by the relevant agreement of limited
partnership; or (ii) any transaction between the Company and any of its
wholly-owned Subsidiaries or between any of the Company's wholly-owned
Subsidiaries or any transaction with a Person who holds Units received by such
Person under the Plan.
Section 415. Financial Covenants.
After the Company has paid in full the principal of and all
accrued interest (including Secondary Securities, as defined in the
Collateralized Note Indenture issued with respect thereto) on the Senior
Securities, the Company will not permit Consolidated EBITDA
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as of the last day of each quarter for the four consecutive quarter period
ended on such day to be less than $3,000,000.
Section 416. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury law or other law, which would prohibit or forgive the Company from
paying all or any portion of the principal of or interest on the Securities as
contemplated herein, wherever enacted, now or at any time hereafter in force,
or which may affect the covenants or the performance of this Indenture; and (to
the extent that it may lawfully do so) the Company hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
Section 417. Limitation on Investments, Loans and Advances.
After the Company has paid in full the principal of and all
accrued interest (including Secondary Securities, as defined in the
Collateralized Note Indenture issued with respect thereto) on the Senior
Securities, the Company will not, nor will it permit any Subsidiary to, make
any advance, loan, extension of credit or capital contribution to, or purchase
any stock, bonds, notes, debentures or other securities of, or make any other
investment in, any Person, except (a) extensions of trade credit in the
ordinary course of business and investments in Cash Equivalents; (b) advances
to employees in the ordinary course of business which shall not exceed $5,000
to any single employee and $25,000 in the aggregate to all employees at any
time outstanding; and (c) hedging transactions relating to crude oil purchases
otherwise permitted hereunder.
Section 418. Limitation on Consolidated Capital Expenditures.
After the Company has paid in full the principal of and all
accrued interest (including Secondary Securities, as defined in the
Collateralized Note Indenture, issued with respect thereto) on the Senior
Securities, the Company will not, and will not permit any of its Subsidiaries
to make, in the aggregate, Consolidated Capital Expenditures other than (a)
Consolidated Capital Expenditures in an aggregate amount not in excess of
$4,150,000 used to build a 92,000 barrel asphalt tank located in Benicia,
California, to expand the storage capacity of two existing asphalt storage
tanks located in Benicia, California, by a combined amount of approximately
19,000 barrels and to build three 3,500 barrel polymer asphalt tanks and
associated hardware at Benicia, California in 1996 and 1997, and (b) other
Consolidated Capital Expenditures in an amount not in excess of $1,250,000
during each calendar year. With respect to the capital expenditure limitations
set forth above, the Holders, in connection with their review of the
information required by Section 409(m) will discuss with the
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Company any necessary increases to the permitted level of capital expenditures
as a result of presently unanticipated remedial actions required by regulation
or law.
Section 419. Fundamental Changes Only on Certain Terms.
After the Company has paid in full the principal of and all
accrued interest (including Secondary Securities, as defined in the
Collateralized Note Indenture issued with respect thereto) on the Senior
Securities, the Company will not, and will not permit any of its Subsidiaries
to, (i) amend the Partnership Agreement or the Sunbelt Partnership Agreement
other than to add additional limited partners or general partners pursuant to
the terms thereof, alter the obligations of the Huntway General Partners under
the Partnership Agreement or the Sunbelt General Partner under the Sunbelt
Partnership Agreement, allow the General Partner or the Special General Partner
to withdraw from the Partnership Agreement or the related partnership or to
sell or otherwise transfer any of their partnership interests in the Company to
any Person such that they cease to be the sole Huntway General Partners, allow
Reprise to withdraw from either the General Partner partnership or the Special
General Partner partnership, add any Person as a general partner to the General
Partner partnership or the Special General Partner partnership or allow the
Company to withdraw from the Sunbelt partnership or to sell or otherwise
transfer any of its Sunbelt partnership interests to any Person such that the
Company ceases to be the Sunbelt Managing General Partner, or add any person as
a general partner such that the Company ceases to be the Sunbelt Managing
General Partner, without the express prior written consent of the Requisite
Holders of Securities; provided, however, that the Company or any of its
Subsidiaries may alter the existence of the limited partners of the Company in
accordance with the provisions of the Partnership Agreement and that Sunbelt
may alter the existence of the limited partners in accordance with the
provisions of Articles V and VI of the Sunbelt Partnership Agreement, or (ii)
enter into any transaction of merger or consolidation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease, sub-lease, transfer or otherwise dispose of, in one transaction or a
series of transactions, all or any substantial part of its business or rights
related thereto, property (whether leased or owned in fee) or fixed assets
outside of the ordinary course of business consistent with past practices,
whether now owned or hereafter acquired or acquire by purchase or otherwise all
or substantially all the business, property or fixed assets of, or stock or
other evidence of beneficial ownership of, any Person except:
(a) the Company may transfer its Sunbelt partnership interests
or Sunbelt may transfer its interest in the underlying assets of
Sunbelt if it receives at least the fair market value of such
transferred interests or assets and the proceeds from such transfer
are applied to the pro rata repayment of the principal of and accrued
interest on the Securities (including the Secondary Securities issued
with respect thereto);
(b) subject to subsection (a) above, any Subsidiary of
the Company may be merged or consolidated with or into the Company or
any of its wholly-owned Subsidiaries, or be liquidated, wound up or
dissolved, or all or substantially all of its
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business, property or assets may be conveyed, sold, leased, exchanged,
transferred or otherwise disposed of, in one transaction or a series
of transactions, to the Company or any wholly-owned Subsidiary of the
Company; provided that, in the case of such a merger or consolidation,
the Company or such wholly-owned Subsidiary shall be the continuing
and surviving corporation;
(c) the Company and its Subsidiaries may sell or
otherwise dispose of any of their other assets outside of the ordinary
course of business; provided that (i) any such sale or other
disposition is made for at least the fair market value of such assets;
(ii) the fair market value of assets sold in any transaction or
transactions otherwise permitted by this subsection (c) shall not
exceed $250,000 in the aggregate in any calendar year (except as
permitted in subsection (a) above);
(d) the Company may merge with and into a corporation, in
accordance with the Support Agreement with the corporation being the
surviving entity; and
(e) acquisitions of assets or stock permitted by Section
411.
Section 420. Contingent Obligations.
After the Company has paid in full the principal of and all
accrued interest (including Secondary Securities, as defined in the
Collateralized Note Indenture issued with respect thereto) on the Senior
Securities, the Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly, create or become or be liable with respect to any
Contingent Obligation, except:
(a) guarantees resulting from endorsement of negotiable
instruments for collection in the ordinary course of business;
(b) the Company and its Subsidiaries may become liable
with respect to Contingent Obligations in an aggregate amount not in
excess of $100,000 outstanding at any one time;
(c) the Company may remain liable with respect to that
certain Equipment Lease Guaranty executed by the Company in favor of
GECC Leasing in an amount not to exceed $860,000;
(d) the Company and its Subsidiaries may become and
remain liable with respect to additional letters of credit issued to
support crude oil purchases and exchanges;
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(e) the Company and its Subsidiaries may become and
remain liable with respect to hedging agreements relating to the price
of crude oil in an amount not to exceed $1,500,000;
(f) the Company may become and remain liable with respect
to its guarantee of letters of credit issued on behalf of Sunbelt
under the Letter of Credit Facility and other obligations solely as a
result of the Company being the general partner of Sunbelt; and
(g) obligations arising under the Letter of Credit
Facility.
Section 421. Conduct of Business.
The Company will not, and will not permit any of its
Subsidiaries to, engage in any business other than the business engaged in by
the Company and its Subsidiaries on the Closing Date and substantially similar
or related businesses and any other businesses which in the aggregate are not
material to the Company and its Subsidiaries taken as a whole.
Section 422. Grant of Lien to Secure Obligations.
(a) The Company and Sunbelt will, upon the indefeasible
payment in full of the principal of and all accrued interest (including
Secondary Securities, as defined in the Collateralized Note Indenture issued
with respect thereto) on the Senior Securities, grant to the Trustee for the
benefit of the Holder a Lien on the Trust Estate (as defined in the
Collateralized Note Indenture) and do all acts necessary or desirable to
perfect such Lien. Each Holder of a Security by its acceptance thereof (i)
agrees that the Collateral Agent and the holders of Senior Securities shall
have no obligation or duty to any Holder to act or not to act or to consider or
take into account the interests of any Holder with respect to the preservation,
encumbrance, sale or other disposition of the Trust Estate and (ii) waives any
and all rights which might entitle such Holder to object to or have any
influence on the preservation, encumbrance, sale or other disposition of the
Trust Estate prior to the creation of the Lien contemplated by this Section.
(b) The Company shall give the Trustee at least 30 days'
written notice in advance of the creation and perfection of the Lien mentioned
in sub-section (a) of this Section 422. If arrangements satisfactory to the
Trustee respecting its compensation and indemnity for acting as the Trustee and
the grantee of a Lien on the Trust Estate are not made, the Trustee shall have
the unilateral right to resign as the Trustee under this Indenture. Each
Holder waives any and all claims which it may have against the Trustee by
reason of any such resignation. At least 90 days before the Lien on the Trust
Estate referred to in Section 422(a) arises, the Company shall deliver to the
Trustee completed current environmental audits or similar information in form
and substance reasonably satisfactory to the Trustee.
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Section 423. Environmental Covenants.
(a) The Company shall, and shall cause each of its
Subsidiaries to, exercise all due diligence in order to comply and cause (i)
all tenants under any leases or occupancy agreements affecting any portion of
the Facilities and (ii) all other Persons on or occupying such property, to
comply with all Environmental Laws in all material respects.
(b) The Company agrees that the Holders may, from time to
time and in their sole and absolute discretion (provided such action is
approved by the Requisite Holders), upon obtaining knowledge of a Release of
Hazardous Materials or any violation of any Environmental Laws which has a
reasonable possibility of creating a liability to the Company or adversely
impacting the value of any real property owned, operated or used by the
Company, retain, at the Company's expense, an independent professional
consultant to review any report relating to Hazardous Materials prepared by or
for the Company and to conduct its own investigation of any Facility currently
owned, leased, operated or used by the Company or any of its Subsidiaries, and
the Company agrees to use its best efforts to obtain permission for such
professional consultant to conduct its own investigation of any Facility
previously owned, leased, operated or used by the Company or any of its
Subsidiaries. The Company hereby grants to each Holder and its agents,
employees, consultants and contractors, the right to enter into or on the
Facilities currently owned, leased, operated or used by the Company or any of
its Subsidiaries to perform such tests on such property as are reasonably
necessary to conduct such a review and/or investigation. Any such
investigation of any Facility shall be conducted, unless otherwise agreed to by
the Company and such Holder, during normal business hours and, to the extent
reasonably practicable, shall be conducted so as not to interfere with the
ongoing operations at any such Facility or to cause any damage or loss to any
property at such Facility. Any report of any investigation conducted at the
request of any Holder pursuant to this Section 423(b) will be obtained and
shall be used by such Holder for the Holder's internal business purposes, to
monitor compliance with this Indenture and the Securities. A copy of any such
report shall be delivered to the Company with the understanding that the
Company acknowledges and agrees that (i) it will indemnify and hold harmless
each Holder from any costs, losses or liabilities relating to the Company's use
of or reliance on such report, (ii) no Holder makes any representation or
warranty with respect to such report, and (iii) by delivering such report to
the Company, the Holder is not requiring or recommending the implementation of
any suggestions or recommendations contained in such report.
(c) The Company shall promptly advise the Trustee and the
Holders in writing and in reasonable detail of (i) any Release of any Hazardous
Materials required to be reported to any federal, state or local governmental
or regulatory agency under any applicable Environmental Laws, (ii) any and all
written communications with respect to any Environmental Claims that have a
reasonable probability of giving rise to a Material Adverse Effect or with
respect to any Release of Hazardous Materials required to be reported to any
federal, state or local governmental or regulatory agency, (iii) any remedial
action taken by the
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Company or any other Person in response to (x) any Hazardous Materials on,
under or about any Facility, the existence of which has a reasonable
probability of resulting in an Environmental Claim having a Material Adverse
Effect, or (y) any Environmental Claim that could have a Material Adverse
Effect, (iv) the Company's discovery of any occurrence or condition on any real
property adjoining or in the vicinity of any Facility that could cause such
Facility or any part thereof to be subject to any restrictions on the
ownership, occupancy, transferability or use thereof under any Environmental
Laws, and (v) any written request for information from any governmental agency
relating to the Company's or any of its Subsidiaries' potential responsibility
for a Release of Hazardous Materials.
(d) The Company shall promptly notify the Trustee and the
Holders in writing of (i) any proposed acquisition of stock, assets, or
property by the Company or any of its Subsidiaries that could reasonably be
expected to expose the Company or any of its Subsidiaries to, or result in,
Environmental Claims that could have a Material Adverse Effect or that could
reasonably be expected to have a material adverse effect on any Governmental
Authorization then held by the Company or any of its Subsidiaries and (ii) any
proposed action to be taken by the Company or any of its Subsidiaries to
commence new and substantially different manufacturing, industrial or other
operations that could reasonably be expected to subject the Company or any of
its Subsidiaries to additional laws, rules or regulations, including, without
limitation, laws, rules and regulations requiring additional environmental
permits or licenses.
(e) The Company shall, at its own expense, provide copies
of such documents or information as the Trustee or a Holder may reasonably
request in relation to any matters disclosed pursuant to this Section 423.
(f) The Company shall promptly take, and shall cause each
of its Subsidiaries promptly to take, any and all necessary remedial action in
connection with the presence, storage, use, disposal, transportation or Release
of any Hazardous Materials on, under or about any Facility in order to comply
with all applicable Environmental Laws and Governmental Authorizations in all
material respects. In the event the Company or any of its Subsidiaries
undertakes any remedial action with respect to any Hazardous Materials on,
under or about any Facility, the Company or such Subsidiary shall conduct and
complete such remedial action in compliance with all applicable Environmental
Laws, and in accordance with the policies, orders and directives of all
federal, state and local governmental authorities, in each case in all material
respects, except when, and only to the extent that, the Company's or such
Subsidiary's liability for such presence, storage, use, disposal,
transportation or discharge of any Hazardous Materials is being contested in
good faith by the Company or such Subsidiary.
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ARTICLE FIVE
DEFAULTS AND REMEDIES
Section 501. Events of Default.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of (i) any interest on any
Security when it becomes due and payable, and continuance of such
default for a period of three Business Days or (ii) the principal of
any Security at its Maturity; or
(b) default in the performance, or breach, of any
covenant, obligation or agreement of the Company in this Indenture
(other than a covenant, a default in the performance of which or
breach of which is specifically dealt with elsewhere in this Section
and except for a default or breach under Sections 406, 407, 410, 417,
418, 419 or 420) and such default or breach shall continue for a
period of 15 days from the earlier of (i) actual knowledge thereof by
an Authorized Officer of the Company, and (ii) written notice, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by at least the Requisite Holders, specifying
such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(c) default in the performance, or breach, of any
covenant, obligation or agreement of the Company in Sections 406, 407,
410, 417, 418, 419 or 420 of this Indenture or if any representation
or warranty of the Company made in this Indenture or in any
certificate or other writing delivered pursuant hereto or in
connection herewith shall prove to be incorrect when the same shall
have been made; or
(d) (i) failure of the Company or any of its Subsidiaries to
pay or any default in the payment of any principal or interest on any
other Indebtedness in the outstanding principal amount of $250,000 or
more, or in the payment of any Contingent Obligation the outstanding
principal amount of which is $250,000 or more in each case beyond any
period of grace provided; or (ii) breach or default with respect to
any other term of any evidence of any other Indebtedness the
outstanding principal amount of which is $250,000 or more or of any
loan agreement, mortgage, indenture or other material agreement
relating thereto, if the effect of such default or breach is to cause,
or to permit the holder or holders of that Indebtedness (or a trustee
on behalf of such holder or holders) to cause, that Indebtedness to
become or be declared due prior to its stated
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maturity (upon the giving or receiving of notice, lapse of time, both,
or otherwise); provided, however, that in the case of failure or
default as described in (i) and (ii) above with respect to the
Securities on the part of any Person, such default shall constitute an
Event of Default hereunder without regard to amount; or
(e) (i) a court having jurisdiction in the premises shall
enter a decree which has not been stayed or order for relief in
respect of the Company, Sunbelt or any of their respective
Subsidiaries or partners of the Company holding in excess of 51% of
the units of ownership of the Company (the "Units") (or partners of
the Company holding a lesser percentage of Units which together with
the Units of other partners of the Company which are subject to an
order or have taken action described in Section 501(f) exceeds 51% of
the total Units) in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in
effect, which decree or order is not stayed or any other similar
relief shall be granted under any applicable federal or state law; or
(ii) an involuntary case is instituted against the Company, Sunbelt or
any of their respective Subsidiaries or partners of the Company
holding in excess of 51% of the Units (or partners of the Company
holding a lesser percentage of Units which together with the Units of
other partners of the Company which are subject to an order or have
taken action described in Section 501(f) exceeds 51% of the total
Units) under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver,
liquidator, sequestrator, trustee, custodian or other officer having
similar powers over the Company, Sunbelt or any of their respective
Subsidiaries or partners of the Company holding in excess of 51% of
the Units (or partners of the Company holding a lesser percentage of
Units which together with the Units of other partners of the Company
which are subject to an order or have taken action described in
Section 501(f) exceeds 51% of the total Units); or over all or a
substantial part of its property, shall have been entered; or the
involuntary appointment of an interim receiver, trustee or other
custodian of the Company, Sunbelt or any of their respective
Subsidiaries or partners of the Company holding in excess of 51% of
the Units (or partners of the Company holding a lesser percentage of
Units which together with the Units of other partners of the Company
which are subject to an order or have taken action described in
Section 501(f) exceeds 51% of the total Units) for all or a
substantial part of its property; or the issuance of a warrant of
attachment, execution or similar process against any substantial part
of the property of the Company, Sunbelt or any of their respective
Subsidiaries or partners of the Company holding in excess of 51% of
the Units (or partners of the Company holding a lesser percentage of
Units which together with the Units of other partners of the Company
which are subject to an order or have taken action described in
Section 501(f) exceeds 51% of the total Units) and the continuance of
any such events in clause (ii) for 90 days unless dismissed, bonded or
discharged; or
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(f) the Company, Sunbelt or any of their respective
Subsidiaries or partners of the Company holding in excess of 51% of
the Units (or partners of the Company holding a lesser percentage of
Units which together with the Units of other partners of the Company
which are subject to an order or have taken action described in this
Section exceeds 51% of the total Units) shall have an order for relief
entered with respect to it or commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or shall consent to the entry of an order for
relief in an involuntary case, or to the conversion to an involuntary
case, under any such law, or shall consent to the appointment of or
taking possession by a receiver, trustee or other custodian for all or
a substantial part of its property; the making by the Company, Sunbelt
or any of their respective Subsidiaries or partners of the Company
holding in excess of 51% of the Units (or partners of the Company
holding a lesser percentage of Units which together with the Units of
other partners of the Company which are subject to an order or have
taken action described in this Section exceeds 51% of the total Units)
of any assignment for the benefit of creditors; or the inability or
failure of the Company, Sunbelt or any of their respective
Subsidiaries or partners of the Company holding in excess of 51% of
the Units (or partners of the Company holding a lesser percentage of
Units which together with the Units of other partners of the Company
which are subject to an order or have taken action described in this
Section exceeds 51% of the total Units) or the admission by the
Company, Sunbelt or any of their respective Subsidiaries or partners
of the Company holding in excess of 51% of the Units (or partners of
the Company holding a lesser percentage of Units which together with
the Units of other partners of the Company which are subject to an
order or have taken action described in this Section exceeds 51% of
the total Units) in writing of its inability to pay its debts as such
debts become due; or the governing body of the Company, Sunbelt or any
of their respective material Subsidiaries (or any committee thereof)
or partners of the Company holding in excess of 51% of the Units (or
partners of the Company holding a lesser percentage of Units which
together with the Units of other partners of the Company holding a
lesser percentage of Units which are subject to an order or have taken
action described in this Section exceeds 51% of the total Units)
adopts any resolution or otherwise authorizes action to approve any of
the foregoing; or
(g) except as otherwise agreed to in writing by the Requisite
Holders, any money judgement, writ or warrant of attachment, or
similar process involving in any case an amount in excess of $350,000
not adequately covered by insurance shall be entered or filed against
the Company or any of its material Subsidiaries or any of their
respective assets and shall remain undischarged, unvacated, unbonded
or unstayed for a period of 30 days or in any event later than five
days prior to the date of any proposed sale thereunder; or
(h) any order, judgment or decree shall be entered against
the Company or any of its material Subsidiaries, decreeing the
dissolution or split up of the Company or that
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Subsidiary and such order shall remain undischarged or unstayed for a
period in excess of 30 days; or
(i) any Pension Plan maintained by the Company or any of its
respective ERISA Affiliates shall be terminated within the meaning of
Title IV of ERISA or a trustee shall be appointed by an appropriate
United States district court to administer any Pension Plan, or the
Pension Benefit Guaranty Corporation (or any successor thereto) shall
institute Proceedings to terminate any Pension Plan or to appoint a
trustee to administer any Pension Plan if as of the date thereof the
Company's liability or any such ERISA Affiliate's liability (after
giving effect to the tax consequences thereof) to the Pension Benefit
Guaranty Corporation (or any successor thereto) for unfunded
guaranteed vested benefits under the Pension Plans exceeds the then
current fair market value of assets accumulated in such Pension Plan
by more than $250,000, in the aggregate (or in the case of a
termination involving the Company or any of its ERISA Affiliates as a
"substantial employer" (as defined in Section 4001(a)(2) of ERISA) the
withdrawing employer's proportionate share of such excess shall exceed
such amount); or
(j) the Company or any of its ERISA Affiliates as employer
under a Multiemployer Plan shall have made a complete or partial
withdrawal from such Multiemployer Plan and the plan sponsor of such
Multiemployer Plan shall have notified such withdrawing employer that
such employer has incurred a withdrawal liability in an annual amount
exceeding $100,000; or
(k) this Indenture and the Securities shall be revoked by the
Company or shall cease to be in full force and effect, or the
protection or security afforded the Holders in any portion of the
collateral securing this Indenture, if any, is thereby in any material
respect impaired for any reason, or the Company shall contest in any
manner that this Indenture or the Securities constitute its valid and
enforceable agreements, or the Company shall assert in any manner that
it has no further obligation or liability under such documents; or
(l) the General Partner and the Special General Partner shall
cease to be the sole general partners of the Company; or the Company
shall cease to be the Sunbelt Managing General Partner; provided that
the General Partner may transfer its general partnership interest in
the Company to a corporation or a limited partnership formed and owned
by the Company's senior management if such transfer will not result in
the loss of limited liability for the Company's limited partners,
cause the Company to be treated as a corporation for federal income
tax purposes or cause adverse tax consequences to the Holders of
Securities; and provided further that the General Partner and the
Special General Partner shall not be required to be partners of the
Company if the Company converts to corporate form in accordance with
the Support Agreement.
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Upon the occurrence of an Event of Default, the Company shall promptly notify
in writing the Trustee. Upon receipt of such notification from the Company or
if a Responsible Officer of the Trustee has actual knowledge of the occurrence
of an Event of Default, the Trustee shall promptly notify the Holders in
writing pursuant to Section 602 of the occurrence of such Event of Default.
The Company shall promptly notify in writing the Trustee of any Event of
Default which has occurred and has continued uncured for a period of ten
calendar days. Upon receipt of such notification from the Company or if a
Responsible Officer of the Trustee has actual knowledge of the occurrence of an
Event of Default that has not been cured within ten calendar days, the Trustee
shall promptly notify the Holders and the Collateral Agent in writing pursuant
to Section 602 of such Event of Default.
Section 502. Acceleration of Maturity; Rescission and
Annulment.
Each Holder of a Security by its acceptance thereof agrees
that if (i) an Event of Default occurs and is continuing and (ii) the holders
of the Specified Senior Debt, if any, have given their prior written consent to
the taking of such action or have accelerated the Specified Senior Debt, then
and in every such case the Trustee or the Requisite Holders may, and the
Trustee, upon the request of the Requisite Holders, shall, declare the
principal of all the Securities to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by the Holders) and, if
the Letter of Credit Facility is in effect, to Bankers Trust Company (at 280
Park Avenue, New York, New York 10017, Attention: Carl O. Roark) and to the
trustees under the Collateralized Note Indenture (at One Federal Street,
Boston, Massachusetts 02211, Attention: Corporate Trust Administration) and
upon any such declaration such principal, together with interest accrued
thereon, shall become due and payable; provided that if an Event of Default
specified in subsections 501(e) or (f) occurs, then such principal, together
with interest accrued thereon, shall become immediately due and payable without
any such declaration or notice or any other action and references in this
Indenture to "declaration of acceleration" shall include such automatic
acceleration.
At any time after such declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Requisite
Holders, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if
(a) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(1) all overdue interest on all Securities (or
issued Secondary Securities with respect thereto if permitted
by this Indenture and the Securities),
(2) the principal of any Securities which have
become due otherwise than by such declaration of acceleration
and interest thereon at the rate
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stipulated by Sections 503 and 515 (or issued Secondary
Securities with respect to such interest if permitted by this
Indenture and the Securities),
(3) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate
stipulated by Sections 503 and 515 (or issued Secondary
Securities with respect to such interest if permitted by this
Indenture and the Securities), and
(4) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(b) all Events of Default, other than the nonpayment of
interest on or principal of Securities (which have become due solely
by such declaration of acceleration), have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of three Business Days, or
(b) default is made in the payment of the principal of
any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee (or issue
Units to the Holders with respect to accrued interest if permitted by this
Indenture), for the benefit of the Holders of such Securities, the whole amount
then due and payable on such Securities for principal and interest, with
interest upon the overdue principal and upon overdue installments of interest,
at the rate then borne by the Securities plus 5% per annum; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand and the Specified Senior Debt has been paid in full or the holders of
the Specified Senior Debt have given their prior written consent to the taking
of such action, the Trustee, in its own name and
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as trustee of an express trust, may institute a Proceeding for the collection
of the sums so due and unpaid and may prosecute such Proceeding to judgment or
final decree, and may enforce the same against the Company or any other obligor
upon the Securities and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any other
obligor upon the Securities, wherever situated, and the Company shall reimburse
and indemnify the Trustee for any expenses incurred in connection with such
Proceeding as provided in Section 607.
If an Event of Default occurs and is continuing and the
holders of the Specified Senior Debt, if any, have given their prior written
consent to the taking of such action, the Trustee may proceed to protect and
enforce its rights and the rights of the Holders by such appropriate
Proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy or legal or equitable right vested in the
Trustee by this Indenture or by law.
Section 504. Trustee May File Proofs of Claim.
Subject to Article Ten, in case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other Proceeding relative to the Company or any
other obligor upon the Securities or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(a) to file and prove a claim for the whole amount of
principal and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders
allowed in such Proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same.
Any custodian, receiver, assignee, trustee, liquidator, sequestrator or similar
official in any such judicial proceeding is hereby authorized by each Holder to
make such payments (subject to Article Ten hereof) to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 607.
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Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
In any Proceedings brought by the Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Securities, and it shall not be necessary to make any
Holders of the Securities parties to any such Proceedings.
Section 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any Proceeding relating
thereto, and any such Proceeding instituted by the Trustee shall be brought in
its own name and as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
applied as set forth in Section 506.
Section 506. Application of Money Collected.
Subject to Article Ten, any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the date
or dates fixed by the Trustee and, in case of the distribution of such money on
account of principal or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: If the Lien contemplated by Section 422 is then in
effect, to the payment of all taxes, assessments or liens with respect
to the Trust Estate that are prior to the lien of this Indenture,
except those taxes, assessments or liens as to which any sale of the
Trust Estate shall have been subject, and to the payment of all costs
and expenses of sale of or other realization upon the Trust Estate
pursuant to the provisions of this Article, and all expenses,
liabilities and advances incurred or made by the Trustee or its
agents, attorneys and counsel in connection with the sale or other
realization upon the Trust Estate or any other amounts otherwise due
to the Trustee pursuant to Section 607;
SECOND: To the payment of amounts then due and unpaid upon
the Outstanding Securities for interest (including Secondary
Securities issued with respect thereto), pro rata, without preference
or priority of any kind, according to the amounts due and payable on
the Securities with respect to interest;
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THIRD: To the payment of principal of the Outstanding
Securities, pro rata, without preference or priority of any kind,
according to the amounts due and payable on the Securities with
respect to principal; and
FOURTH: The balance, if any, to the Person or Persons
entitled thereto.
Section 507. Limitation on Suits.
No Holder of any Securities shall have any right to institute
any Proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(a) the holders of the Specified Senior Debt, if any,
have given their prior written consent to the taking of such action;
provided, however, no such consent shall be required with respect to
the institution of any suit in equity which only seeks injunctive
relief as a remedy;
(b) such Holder has previously given written notice to
the Trustee of a continuing Event of Default;
(c) the Requisite Holders shall have made written request
to the Trustee to institute Proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(d) such Holder or Holders have offered to the Trustee an
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(e) the Trustee for 30 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such Proceeding; and
(f) no direction inconsistent with such written request
has been given to the Trustee during such 30-day period by the
Requisite Holders;
it being understood and intended that no one or more Holders shall have any
right in any manner whatsoever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture.
In the event the Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of
Securities, each representing less than the Requisite Holders, the Trustee in
its sole discretion may determine what action, if any, shall
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be taken, notwithstanding any other provision of this Indenture. In such
event, the Trustee shall give notice of such conflicting or inconsistent
requests to the Holders.
The requirements of this Section 507 shall only become
operative at such time as this Indenture becomes subject to the requirements of
the Trust Indenture Act.
Section 508. Unconditional Right of Holders to Receive
Principal and Interest.
Any Holder of any Security shall have the right on the terms
stated herein to receive payment of the principal of and interest on such
Security on the respective Stated Maturities, subject to the provisions of
Article Ten, expressed in such Security and this Indenture (or, in the case of
redemption, on the Redemption Date) and such rights shall not be impaired
without the consent of such Holder, except as otherwise set forth herein.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any Proceeding to
enforce any right or remedy under this Indenture and such Proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such Proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such Proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as provided in Section 305, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy. The Company acknowledges and agrees that no
adequate remedy at law exists for breach of its obligations under Article Four.
In the event that the Company fails to comply with the terms of the provisions
set forth in said Article, the Requisite Holders shall have the right to obtain
specific performance of the Company's obligations pursuant to said Article.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or any acquiescence therein.
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Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control by Holders.
The Requisite Holders shall have the right to direct the time,
method and place of conducting any Proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee (including
directing the Trustee to engage counsel of such Holders' choice at the
direction of such Holders), provided that
(a) such direction shall not be in conflict with any rule
of law or with this Indenture or involve the Trustee in personal
liability, and
(b) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
Prior to the time a judgment or decree for payment of the
money due has been obtained by the Trustee as provided in this Article, the
Requisite Holders may on behalf of the Holders of all the Securities waive any
past Event of Default hereunder and its consequences, except an Event of
Default
(a) in the payment of the principal of or interest on any
Security, excluding principal or interest which has become due as a
result of acceleration, or
(b) in respect of a covenant or provision hereof which
under Article Eight cannot be modified or amended without the consent
of the Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture and the Company, the Trustee and the Holders
shall be restored to their former positions and rights hereunder; but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by its acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any
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party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% of the Aggregate Outstanding
Amount of Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of or interest on any Security on
or after the respective Stated Maturities expressed in such Security (or, in
the case of redemption, on or after any Redemption Date).
Section 515. Remedies.
(a) If an Event of Default shall have occurred
and be continuing, and the Securities have been declared due and payable with
the prior written consent of the holders of a majority of the Senior
Indebtedness or if the Specified Senior Debt has been indefeasibly paid in full
(other than any indemnification obligation for which a claim has not been made;
provided that any such event shall not release the Company from its
indemnification obligation which shall survive such event), all letters of
credit issued under the Letter of Credit Agreement or any Replacement Letter of
Credit Agreement have indefeasibly expired with no claim or demand pending
thereon and the commitment to issue letters of credit under the Letter of
Credit Agreement or any Replacement Letter of Credit Agreement shall have
terminated or expired and such declaration and its consequences have not been
rescinded and annulled, the Trustee, subject to Section 601(c)(4), may do one
or more of the following:
(i) institute Proceedings for the
collection of all amounts then payable on the Securities or
under this Indenture, whether by declaration or otherwise,
enforce any judgment obtained, and if the Lien contemplated by
Section 422 is then in effect, collect from the Trust Estate
monies adjudged due;
(ii) if the Lien contemplated by Section
422 is then in effect, sell all or a portion of the Trust
Estate or rights or interests therein, at one or more public
or private sales called and conducted in any manner permitted
by law and in accordance with Section 516;
(iii) if the Lien contemplated by Section
422 is then in effect, institute Proceedings from time to time
for the complete or partial foreclosure of the Lien of this
Indenture with respect to the Trust Estate;
(iv) if the Lien contemplated by Section
422 is then in effect, exercise any remedies of a secured
party under the UCC and, subject to the UCC, take any other
appropriate action to protect and enforce the rights and
remedies of the Trustee or the Holders of the Securities
hereunder; or
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(v) if the Lien contemplated by Section
422 is then in effect, exercise any remedies available to it
under the collateral documents evidencing such Lien;
provided, however, that if the Lien contemplated by Section 422 is then in
effect, the Trustee may not sell or otherwise liquidate the Trust Estate
following an Event of Default, unless either (i) the Requisite Holders consent
thereto, or (ii) the proceeds of such sale or liquidation distributable to the
Holders are sufficient to discharge in full the amounts then due and unpaid
upon the Securities for principal and interest and the amounts due and payable
pursuant to clause FIRST of Section 506 and the Requisite Holders agree with
such determination.
(b) If an Event of Default as described in
Section 501(b) or (c) hereof shall have occurred and be continuing and the
holders of the Senior Indebtedness have given their prior written consent to
the taking of such action, the Trustee may, and at the request of the Requisite
Holders shall, institute a Proceeding solely to compel performance of the
covenant or agreement or to cure the representation or warranty, the breach of
which gave rise to the Event of Default under such Section; the Trustee may
enforce any equitable decree or order arising from such Proceeding.
(c) Upon the occurrence and during the
continuance of an Event of Default, the interest rate payable with respect to
the outstanding principal amount of the Securities (including Secondary
Securities), and interest payments thereon not paid when due, shall be
increased to a rate which is 5% per annum in excess of the rate of interest
otherwise payable with respect to such Securities.
Section 516. Sale of Trust Estate.
If the Lien contemplated by Section 422 is then in effect:
(a) The power to effect any sale of any portion
of the Trust Estate pursuant to Section 515 (a "Sale") shall not be exhausted
by any one or more Sales as to any portion of such Trust Estate remaining
unsold but shall continue unimpaired until the entire Trust Estate shall have
been sold or all amounts payable on the Securities and any other amounts due
under this Indenture with respect thereto shall have been paid. The Trustee
may from time to time postpone any Sale by public announcement made at the time
and place of such Sale.
(b) The Trustee may bid for and acquire any
portion of the Trust Estate in connection with a Sale thereof, and may pay all
or part of the purchase price by crediting against amounts owing on the
Securities or other amounts secured by this Indenture, all or part of the net
proceeds of such Sale after deducting the costs, charges and expenses incurred
by the Trustee in connection with such Sale notwithstanding the provisions of
Section 607. The Securities need not be produced in order to complete any such
Sale, or in order for
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the net proceeds of such Sale to be credited against amounts owing on the
Securities. The Trustee shall hold, lease, operate, manage or otherwise deal
with any property so acquired in accordance with this Indenture in any manner
permitted by law.
(c) The Trustee shall execute and deliver an
appropriate instrument of conveyance transferring its interest in any portion
of the Trust Estate in connection with a Sale thereof. In addition, the
Trustee is hereby irrevocably appointed the agent and attorney-in-fact for the
Company and its Subsidiaries to transfer and convey its interest in any portion
of the Trust Estate in connection with a Sale thereof, and to take all action
necessary to effect such Sale. No purchaser or transferee at such a Sale shall
be bound to ascertain the Trustee's authority, inquire into the satisfaction of
any conditions precedent or see to the application of any monies.
Section 517. Action on Securities.
The Trustee's right to seek and recover judgment on the
Securities or under this Indenture shall not be affected by the seeking or
obtaining of or application for any other relief under or with respect to this
Indenture. Neither the Lien of this Indenture, if any, nor any rights or
remedies of the Trustee or the Holders shall be impaired by the recovery of any
judgment by the Trustee against the Company or, if the Lien contemplated by
Section 422 is then in effect, by the levy of any execution under such judgment
upon any portion of the Trust Estate or upon any of the assets of the Company.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
The Trustee, for itself and its successors, hereby accepts the
trusts created by this Indenture upon the terms and conditions set forth
herein, including the terms and conditions set forth in this Section 601.
(a) Except during the continuance of an Event of Default
known by the Trustee,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein,
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upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is
continuing and is known by the Trustee, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) this subsection (c) shall not be construed to limit
the effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Requisite Holders (or such lesser percentage
as may be herein specified with respect thereto) relating to the time,
method and place of conducting any Proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture and the Trustee shall act in accordance
with the instructions of the Requisite Holders; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
(e) At least 90 days before the Lien on the Trust Estate
referred to in Section 422(a) arises, the Company shall deliver to the Trustee
completed Phase I
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environmental audits having an effective date no earlier than six months prior
to the date the Lien is to arise.
Section 602. Notice of Defaults.
Within ten days after receipt of notice of an Event of Default
as set forth in Section 501 or the Trustee's actual knowledge of an Event of
Default, the Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the Security Register, notice of such default actually
known to the Trustee, unless such default shall have been cured or waived. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document reasonably believed by it to be genuine and to have
been signed or presented by the proper party or parties or, in the
case of cables, telecopies and telexes, to have been sent by the
proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with independent counsel,
accountants or other experts in connection with the fulfillment of its
duties hereunder, and the Trustee shall be entitled to rely on the
written opinion of such counsel, accountants or other experts in
connection with any action taken, omitted to be taken or suffered by
the Trustee in fulfilling its duties hereunder. The Trustee shall
have the right at any time to seek instructions concerning the
administration of this Indenture from any court of competent
jurisdiction;
(e) the Trustee shall be under no obligation to take any
action or omit to take any action to exercise any of the rights or
powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless the
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Trustee shall have been provided adequate security and indemnity
satisfactory to the Trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction, including such reasonable advances as may be
requested by the Trustee;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company,
personally or by agent or attorney-in-fact; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys-in-fact and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent
or attorney-in-fact appointed with due care by it hereunder.
Section 604. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificate of authentication in the form set forth in Exhibit A
to this Indenture, shall be taken as the statements of the Company, and the
Trustee shall not be responsible in any manner whatsoever for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of any Securities or the
proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Paying Agent, Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities, and, subject to Sections 608 and 612, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
Except as otherwise expressly provided herein, money held by
the Trustee in trust hereunder need not be segregated from other funds except
to the extent required by law. The Trustee shall be under no liability for
interest on any money received by it hereunder.
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Section 607. Compensation and Reimbursement.
The Company agrees
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents, attorneys-in-fact and counsel), except any such expense,
disbursement or advance as may be attributable to its gross negligence
or bad faith; and
(c) to indemnify the Trustee (in its individual capacity
and as Trustee) and each of its officers, directors, attorneys-
in-fact and agents for, and to hold each of such Persons harmless
against, any loss, liability or expense, including without limitation
any and all environmental claims, liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever incurred by or asserted
against the Trustee, its officers, directors, employees, agents and
counsel, incurred without negligence or bad faith on such Person's
part, arising out of or in connection with the acceptance or
administration of this Indenture, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of the Trustee's powers or duties
hereunder (if incurred without gross negligence or bad faith).
Section 608. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of Section 310(a)(1) of the Trust Indenture Act. The Trustee
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition. The Trustee shall
comply with Section 310(b) of the Trust Indenture Act.
Section 609. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 610.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 45 days after the
giving of such notice of resignation, the
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resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time by an Act of
the Requisite Holders, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608
after written request therefor by the Company or by any Holder, or
(2) the Trustee shall cease to be eligible under Section
608 and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent, or a receiver of the Trustee or
of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property of affairs for the
purpose or rehabilitation, conservation or liquidation,
then, in any case, (i) the Company by a Company Order may remove the Trustee,
or (ii) subject to Section 514, any Holder may, on behalf of itself and all
other similarly situated Holders, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Company Order, shall promptly appoint a successor
Trustee. If, within one year after such resignation, removal or incapability,
or the occurrence of such vacancy, a successor Trustee shall be appointed by
Act of the Requisite Holders delivered to the Company and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders of the Securities and accepted appointment in the
manner hereinafter provided, any Holder may, subject to Section 514, on behalf
of itself and all other similarly situated Holders, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor Trustee by
mailing written notice of such event by first-class mail, postage prepaid, to
the Holders of Securities as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office.
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(g) Notwithstanding any replacement of the Trustee, the
Company's obligations under Section 607 hereof shall continue for the benefit
of the Trustee so replaced.
Section 610. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee,
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder. Upon request of
any such successor Trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor
Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 611. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto; provided, however, that such
successor corporation shall give written notice to the Company, in the manner
provided for in Section 105(b), that it is the successor by merger, conversion
or consolidation, as the case may be, to the Trustee, such notice to specify
the new name and address, if applicable, of such successor corporation. In
case any Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
Section 612. Preferential Collection of Claims Against
Company.
From such time as the Trust Indenture Act is applicable hereto
(i) the Trustee shall be subject to Section 311(a) of the Trust Indenture Act,
excluding any creditor
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relationship listed in Section 311(b) of the Trust Indenture Act, and (ii) a
Trustee who has resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act.
Section 613. Representations and Warranties of the
Trustee.
The Trustee represents and warrants that:
(a) Organization and Good Standing. The Trustee has been
duly organized, and is validly existing and in good standing as a
banking corporation under the laws of the State of New York and has
the power to conduct its business and affairs as a trustee.
(b) Authorization; Binding Obligations. The Trustee has
the corporate power and authority to perform the duties and
obligations of trustee under this Indenture. The Trustee has taken
all necessary corporate action to authorize the execution, delivery
and performance of this Indenture, and all of the documents required
pursuant hereto. Upon execution and delivery by the Company, this
Indenture will constitute the legal, valid and binding obligation of
the Trustee enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors' rights
generally (including, without limitation, the effect of statutory or
other laws regarding fraudulent conveyances or preferential
transfers), from time to time in effect. The enforceability of the
Trustee's obligations under this Indenture is subject to general
principles of equity regardless of whether such enforceability is
considered in a proceeding in equity or at law.
Section 614. Co-Trustees and Separate Trustee.
At any time or times, (i) for the purpose of meeting the legal
requirements of any jurisdiction in which any part of a Trust Estate may at the
time be located, or (ii) if the Trustee deems it to be necessary to protect the
interests of the Holders of the Senior Notes, the Company and the Trustee shall
have power to appoint, and upon the written request of the Trustee or of the
Holders of Securities representing at least 25% of the Aggregate Outstanding
Amount of Securities, the Company shall for such purpose join with the Trustee
in the execution, delivery and performance of all instruments and agreements
necessary or proper to appoint, one or more Persons (who shall not be Holders)
approved by the Trustee either to act as co-trustee, jointly with the Trustee,
of all or any part of the Trust Estate, or to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment which shall expressly designate the property affected
and the capacity of the appointee as either a co-trustee or separate trustee,
and to vest in such Person or Persons in the capacity aforesaid, any property,
title, right or power deemed necessary or desirable, subject to the other
provisions of this Section. If the Company does not join in such appointment
within 15 days after the receipt by it of a request so to do, or in case an
Event of
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Default has occurred and is continuing, the Trustee alone shall have power to
make such appointment.
Should any written instrument from the Company be required by
any co-trustee or separate trustee so appointed for more fully confirming to
such co-trustee or separate trustee such property, title, right or power, any
and all such instruments shall, on request, be executed, acknowledged and
delivered by the Company.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but only to such extent, be appointed subject to the
following terms:
(a) the Securities shall be authenticated and delivered
and all rights, powers, duties and obligations hereunder in respect of
the custody of cash held by, or required to be deposited or pledged
with, the Trustee hereunder, shall be exercised solely by the Trustee,
and all rights, powers, duties and obligations hereunder in respect of
the custody of securities and other personal property held by, or
required to be deposited or pledged with, the Collateral Agent
hereunder, shall be exercised solely by the Collateral Agent;
(b) the rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any property
covered by the appointment of a co-trustee or separate trustee shall
be conferred or imposed upon and exercised or performed by the Trustee
or by the Trustee and such co-trustee or separate trustee jointly, as
shall be provided in the instrument appointing such co- trustee or
separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the
Trustee shall be incompetent or unqualified to perform such act, in
which event such rights, powers, duties and obligations shall be
exercised and performed by such co-trustee or separate trustee;
(c) the Trustee at any time, by an instrument in writing
executed by it, with the concurrence of the Company evidenced by a
Company Order, may accept the resignation of or remove any co-trustee
or separate trustee appointed under this Section 614, and in case an
Event of Default has occurred and is continuing, the Trustee shall
have power to accept the resignation of, or remove, any such
co-trustee or separate trustee without the concurrence of the Company.
Upon the written request of the Trustee, the Company shall join with
the Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal; a successor to any co-trustee or separate
trustee which has resigned or has been removed may be appointed in the
manner provided in this Section 614;
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(d) no co-trustee or separate trustee hereunder shall be
personally solely liable by reason of any act or omission of the
Trustee, or any other such Trustee hereunder;
(e) the Trustee shall not be liable solely by reason of
any act or omission of a co-trustee or separate trustee selected, if
selected by the Trustee, with due care; and
(f) any Act of Holders delivered to the Trustee shall be
deemed to have been delivered to each such co-trustee and separate
trustee.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 701. Company to Furnish Trustee Names and Addresses
of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) not more than five days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders as of such Regular Record Date,
and
(b) at such other times as the Trustee may reasonably
request in writing, within 30 days after receipt by the Company of any
such request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
Section 702. Preservation of Information; Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) If any Holder (hereinafter referred to as
"applicant") applies in writing to the Trustee, and furnishes to the Trustee
reasonable proof that such applicant has owned a Security for a period of at
least six months preceding the date of such application, and such application
states that the applicant desires to communicate with other Holders with
respect to their rights under this Indenture or under the Securities and is
accompanied by a copy of the
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form of proxy or other communication which such applicant proposes to transmit,
then the Trustee shall, within five Business Days after the receipt of such
application, at its election, either
(1) afford such applicant access to the
information preserved at the time by the Trustee in accordance with
Section 702(a), or
(2) inform such applicant as to the approximate
number of Holders whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section
702(a), and as to the approximate cost of mailing to such Holders the
form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such applicant access
to such information, the Trustee shall, upon the written request of such
applicant, mail to each Holder whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 702(a), a copy
of the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five days after such tender, the Trustee shall mail
to such applicant and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion
of the Trustee, such mailing would be contrary to the best interests of the
Holders or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after
the entry of an order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for hearing, that all the objections
so sustained have been met and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender,
otherwise the Trustee shall be relieved of any obligation or duty to such
applicant respecting its application.
(c) Every Holder of Securities, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company nor
the Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with
Section 702(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under Section 702(b).
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Section 703. Reports by Trustee.
(a) Within 60 days after June 30 of each year commencing
with June 30, 1997, the Trustee shall transmit by mail to all Holders, as their
names and addresses appear in the Security Register, a brief report dated as of
June 30 with respect to:
(1) its eligibility and qualifications under Section 608,
or in lieu thereof, if to the best of its knowledge it has continued
to be eligible and qualified under said Section, a written statement
to such effect;
(2) the character and amount of any advances (and the
circumstances surrounding the making thereof) made by the Trustee (as
such) which remain unpaid on the date of such report, and for the
reimbursement of which it claims or may claim a lien or charge, prior
to that of the Securities, on any property or funds held or collected
by it as Trustee;
(3) the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor on
the Securities) to the Trustee in its individual capacity, on the date
of such report, with a brief description of any property held as
collateral security therefor, except an indebtedness based upon a
creditor relationship arising in any manner described in Section
311(b)(2), (3), (4) or (6) of the Trust Indenture Act;
(4) the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(5) any additional issue of Securities which the Trustee
has not previously reported; and
(6) any action taken by the Trustee in the performance of
its duties hereunder which it has not previously reported and which in
its opinion materially affects the Securities.
(b) A copy of each such report shall, at the time of such
transmission to the Holders, be filed by the Trustee with each stock exchange
upon which the Securities are listed, with the Commission and also with the
Company. The Company will notify the Trustee when the Securities are listed on
any stock exchange.
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ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
Section 801. Supplemental Indentures without Consent of
Holders.
Subject to Section 1008, without the consent of any Holders,
the Company and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(a) to add to the covenants of the Company for the
benefit of the Holders, or to surrender any right or power herein
conferred upon the Company; or
(b) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture; provided that, in
each case, such provisions shall not adversely affect the interests of
the Holders in any material respect; or
(c) to further secure the Securities; or
(d) from such time as the Securities are subject to the
Trust Indenture Act, to modify, eliminate or add to the provisions of
this Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the Trust Indenture Act, or
under any similar federal statute hereafter enacted, and to add to
this Indenture such other provisions as may be expressly permitted by
the Trust Indenture Act, excluding, however, the provisions referred
to in Section 316(a)(2) of the Trust Indenture Act as in effect at the
date as of which this Indenture was executed or any corresponding
provision provided for in any similar federal statute hereafter
enacted.
Section 802. Supplemental Indentures with Consent of Holders.
Subject to Section 1008, with the consent of the Requisite
Holders, by Act of said Holders delivered to the Company and the Trustee, the
Company and the Trustee may enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders under this Indenture; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(a) extend the Stated Maturity of, or of any installment
of interest on, any Security, or reduce the principal amount thereof
or the Interest Rate thereon, or change the provisions of this
Indenture relating to the application of proceeds of collateral
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securing this Indenture, if any, to the payment of principal of or
interest on the Securities or change any place where, or the manner in
which, any Security or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment after
the Stated Maturity thereof (or, in the case of redemption, on or
after any Redemption Date); or
(b) reduce the percentage of the Aggregate Outstanding
Amount of Securities, the consent of whose Holders is required for any
such supplemental indenture, or whose consent is required for any
waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in
this Indenture; or
(c) impair or adversely affect the collateral securing
this Indenture, if any; or
(d) permit the creation of any Lien ranking prior to or
on a parity with the Lien of this Indenture, if any, with respect to
any part of any collateral securing this Indenture or terminate the
Lien of this Indenture, if any, on any property at any time subject
hereto or deprive the Holder of any Security of the security afforded
by the Lien of this Indenture, if any; or
(e) change the percentage of the Aggregate Outstanding
Amount of Securities, the consent of whose Holders is required
pursuant to Sections 502, 510, 512 or 515; or
(f) modify, directly or indirectly, the definition of the
terms "Aggregate Outstanding Amount," "Requisite Holders" and
"Outstanding"; or
(g) modify any of the provisions of this Section, Section
801 or Section 513, except to increase any such percentage or to
provide that certain or other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Security
affected thereby; or
(h) modify any of the provisions of this Indenture
relating to the subordination of the Securities in a manner materially
adverse to the Holders; or
(i) [intentionally omitted]; or
(j) modify any of the provisions of Sections 501(d), 508
or 904.
After such time as the provisions of the Trust Indenture Act
apply to this Indenture, it shall not be necessary for any Act of Holders under
this Section to approve the
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particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to this Section 802, the Company shall mail
or cause to be mailed to the Holders at their respective addresses set forth on
the Security Register, a notice setting forth in general the terms and
substance of such supplemental indenture. Any failure of the Trustee to mail
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
Any solicitation of Holders of any consent, waiver or
amendment under this Indenture involving consideration (whether in connection
with a sale of Securities to the Company or any of its Affiliates or not) shall
provide that such consideration be paid equally to all Holders regardless of
whether or not such Holders agree to such consent, waiver or amendment.
Section 803. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel and Officers' Certificate stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 804. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
Section 805. Conformity with Trust Indenture Act.
From such time as the Trust Indenture Act is applicable
hereto, every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 806. Reference in Securities to Supplemental
Indentures.
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall, if required
by the Trustee, bear a notation in
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form approved, by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
ARTICLE NINE
REDEMPTION OF SECURITIES
Section 901. Right of Redemption.
After the Company has paid in full the principal of and all
accrued interest (including Secondary Securities, as defined in the
Collateralized Note Indenture, issued with respect thereto) on the Senior
Securities, the Securities may be redeemed at the election of the Company as a
whole or from time to time in part, subject to the conditions and at the
Redemption Prices specified in the form of Security, together in each case with
accrued interest to the Redemption Date.
Section 902. Applicability of Article.
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall
be made in accordance with such provision and this Article.
Section 903. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant
to Section 901 shall be evidenced by a Company Order. In case of any
redemption at the election of the Company, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice
period shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities to be redeemed.
Section 904. Selection by Trustee of Securities to be
Redeemed.
If less than all the Securities are to be redeemed, the
particular Securities or portions thereof to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities not previously called for redemption, pro rata (subject
to the next succeeding paragraph), and the amounts to be redeemed may be equal
to $100,000 or any integral multiple thereof.
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In the event that any Securities are registered for sale and
sold under the Securities Act of 1933, the Company shall by notice in writing
to the Trustee direct that redemptions of the Securities shall be allocated pro
rata between the Securities which have been so registered and sold ("registered
Securities") and all other Securities and that the particular registered
Securities to be redeemed shall be selected pro rata, and in such event, (i)
the Trustee shall make such allocation and so select the registered Securities
to be redeemed, and (ii) all other Securities shall be redeemed in part pro
rata.
The Trustee shall promptly notify the Company and each
Security Registrar in writing of the Securities selected for redemption and, in
the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part, to
the portion of the principal amount of such Security which has been or is to be
redeemed.
Section 905. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at its address
appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities are to be
redeemed, the identification (and, in the case of a Security to be
redeemed in part, the principal amount) of the particular Securities
to be redeemed;
(d) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security or portion thereof, and
that interest thereon shall cease to accrue on and after said date;
and
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
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Section 906. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 403) an
amount of money in same day funds sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof which are to be redeemed on
that date.
Section 907. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price together with
accrued interest to the Redemption Date; provided, however, that installments
of interest whose Stated Maturity is on or prior to the Redemption Date shall
be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such on the relevant Regular Record Dates according
to the terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid on
any Redemption Date, the principal and interest then due in respect thereof
shall, until paid, bear interest from the Redemption Date at the rate specified
in Section 503.
Section 908. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at the office or agency of the Company maintained for such purpose
pursuant to Section 402 (with, if the Company, the Security Registrar or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company, the Security Registrar or the Trustee duly
executed by, the Holder thereof or its attorney duly authorized in writing),
and the Company shall execute, and the Trustee shall authenticate and deliver
to the Holder of such Security without service charge, a new Security or
Securities, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
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ARTICLE TEN
SUBORDINATION OF SECURITIES
Section 1001. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a
Security, by its acceptance thereof, likewise covenants and agrees, that, to
the extent and in the manner hereinafter set forth in this Article, the
Subordinated Indebtedness is and shall be and remain junior and subordinate in
right of payment to the prior indefeasible payment in full of all Specified
Senior Debt. The Collateral Agent and the holders of the Specified Senior Debt
are intended to be third party beneficiaries of this Article and Article Five
of this Indenture. No direct or indirect payment on account of the
Subordinated Indebtedness shall be made, nor shall any Distribution of Assets
of the Company be applied to the payment, purchase or other acquisition or
retirement of the Subordinated Indebtedness unless and until the Specified
Senior Debt is indefeasibly paid in full (other than any indemnification
obligations for which a claim has not been made; provided that any such event
shall not relieve the Company from its indemnification obligations which shall
survive such event), all letters of credit issued under the Letter of Credit
Facility have indefeasibly expired with no claim or demand pending thereon and
the commitment to issue letters of credit under the Letter of Credit Facility
shall have terminated or expired.
Section 1002. Distributions Held in Trust.
Each Holder of a Security by its acceptance thereof agrees
that if it receives any payment or Distribution of Assets of Borrower which
such Holder is not entitled to retain under the provisions of this Indenture,
such payment or assets shall be delivered forthwith by such Holder to the
Collateral Agent named in the Intercreditor Agreement (the "Collateral Agent")
for the benefit of the holders of the Specified Senior Debt for application to
the Specified Senior Debt, in the form received except for the addition of any
endorsement or assignment necessary to effect a transfer of all rights therein
to the Collateral Agent for the benefit of holders of the Specified Senior
Debt, and the Collateral Agent and the holders of the Specified Senior Debt are
irrevocably authorized to supply any required endorsement or assignment which
may have been omitted. Until so delivered any such payment or collateral shall
be held by such Holder in trust for the holders of the Specified Senior Debt
and shall not be commingled with other funds or property of such Holder.
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Section 1003. Subordination Legend.
Each Security shall bear a conspicuous legend that it is
subordinated to the Specified Senior Debt. The Company's and each Holder's
books shall be marked to evidence the subordination of all of the Subordinated
Indebtedness to the Senior Indebtedness.
Section 1004. Prompt Action.
Each Holder of a Security by its acceptance thereof agrees it
shall duly and promptly take such action as the Representatives of the
Specified Senior Debt may reasonably request (i) to collect the
Subordinated Indebtedness for the account of the holders of the
Specified Senior Debt, and to file appropriate claims or proofs of
claim in respect of the Subordinated Indebtedness, (ii) to execute and
deliver to the Representatives of the Specified Senior Debt such
powers of attorney, assignments, or other instruments as it may
reasonably request in order to enable it to enforce any and all claims
with respect to, and any security interests and other liens securing
payment of, the Subordinated Indebtedness, and (iii) to collect and
receive any and all payments or distributions which may be payable or
deliverable upon or with respect to the Subordinated Indebtedness.
Section 1005. Power of Attorney.
(a) Each Holder of a Security by its acceptance thereof
irrevocably authorizes and empowers the Representatives of the
Specified Senior Debt for the benefit of the holders of the Specified
Senior Debt (and its representative or representatives) to demand, sue
for, collect and receive all payments and distributions under the
Securities and this Indenture and give acquittance therefor and to
file and enforce claims and proofs of claims or suit and take all such
other actions (including, without limitation, voting the Subordinated
Indebtedness (including in connection with any liquidation,
reorganization or arrangement) or enforcing any security interest or
other Lien securing payment of the Subordinated Indebtedness) in the
name of such Holder or otherwise, as the Representatives of the
Specified Senior Debt determine to be necessary or appropriate. In no
event shall any Holder waive, forgive or cancel any claim such Holder
may now or hereafter have against the Company or its Subsidiaries.
(b) In no event shall any holder of Senior Indebtedness
be liable to any Holder for any failure to prove the Subordinated
Indebtedness, to exercise any right with respect thereto or to collect
any sums payable thereon.
Section 1006. Approval of Senior Indebtedness.
(a) Each Holder of a Security, prior to its acceptance
thereof, has been given an opportunity to review the Letter of Credit
Facility, the Senior Securities, and
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<PAGE> 90
the Collateralized Note Indenture and, by its acceptance of such
Security, hereby consents to and approves of the provisions contained
therein and agrees that any holder of Senior Indebtedness may, at any
time and from time to time, without the consent of or notice to such
Holder, without incurring responsibility to such Holder, and without
impairing or releasing the rights of the Collateral Agent or any
holder of Senior Indebtedness, or any of the obligations of such
Holder hereunder:
(i) change the amount, manner, place or terms of
payment or change or extend the time of payment of or renew or
alter Senior Indebtedness or amend the Letter of Credit
Facility, the Senior Securities, and the Collateralized Note
Indenture in any manner or enter into or amend in any manner
any other agreement relating to the Senior Indebtedness;
(ii) sell, exchange, release or otherwise deal
with any property by whomsoever at any time pledged or
mortgaged to secure, or howsoever securing, the Senior
Indebtedness;
(iii) release anyone (including any guarantor)
liable in any manner for the payment or collection of the
Senior Indebtedness;
(iv) exercise or refrain from exercising any
rights against the Company or its Subsidiaries;
(v) apply any sums by whomsoever paid or
however realized to the Senior Indebtedness; or
(vi) take any other action which otherwise might
be deemed to impair the rights of any Holder.
(b) Each Holder of a Security by its acceptance thereof
agrees it will not, until all Specified Senior Debt has been
indefeasibly paid in full (other than any indemnification obligation
for which a claim has not been made; provided that any such event
shall not release the Company from its indemnification obligation
which shall survive such event), all letters of credit issued under
the Letter of Credit Facility have indefeasibly expired with no claim
or demand pending thereon and the commitment to issue letters of
credit under the Letter of Credit Facility shall have terminated or
expired, without the prior written consent of the holders of the
Specified Senior Debt, accelerate the Subordinated Indebtedness, and
agrees that so long as any Senior Indebtedness shall remain unpaid,
any letter of credit issued under the Letter of Credit Facility shall
remain outstanding or the commitment to issue letters of credit under
the Letter of Credit Facility remains available, it shall neither
commence nor join with any other creditor of the Company or its
Subsidiaries to commence any bankruptcy, insolvency, reorganization,
readjustment of debt, arrangement of debt, receivership or
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liquidation or other similar proceeding against the Company or its
Subsidiaries or commence any action or proceeding against the Company
to recover all or any part of the Subordinated Indebtedness.
Section 1007. Certain Waivers.
The Company and each Holder of a Security by its acceptance
thereof waive any defense based on the adequacy of a remedy at law which might
be asserted as a bar to the remedy of specified performance of this Article Ten
in any action brought therefor by any holder of Senior Indebtedness, and to the
fullest extent permitted by law, further waive: promptness, diligence,
presentment, demand, protest, notice of protest, notice of default or dishonor,
notice of payment or nonpayment and any and all other notices and demands of
any kind in connection with all negotiable instruments evidencing all or any
portion of the Senior Indebtedness or the Subordinated Indebtedness to which
the Company or any Holder may be a party; notice of the acceptance of this
Indenture; notice of any loans made, extensions granted or other actions taken
in reliance hereon; all other demands and notices of every kind in connection
with this Indenture, the Senior Indebtedness or the Subordinated Indebtedness;
and any requirement that the Collateral Agent or the holders of Senior
Indebtedness exhaust any right or take any action against the Company or any of
its Subsidiaries or any other person or entity or any collateral.
Section 1008. Certain Covenants.
The Company and each Holder of a Security by its acceptance
thereof agrees that until such time as the Specified Senior Debt has been
indefeasibly paid in full (other than any indemnification obligation for which
a claim has not been made; provided that any such event shall not release the
Company from its indemnification obligation which shall survive such event),
all letters of credit issued under the Letter of Credit Facility have
indefeasibly expired with no claim or demand pending thereon and the commitment
to issue letters of credit under the Letter of Credit Facility shall have
terminated or expired:
(a) Except for demand upon acceleration pursuant to
Section 502, such Holder shall not demand or accept from the Company
or any other person any such payment or collateral nor shall such
Holder release, exchange, extend the time of payment of, compromise,
set off or otherwise discharge or enforce any part of the Subordinated
Indebtedness or in any way amend or modify the Subordinated
Indebtedness or this Indenture;
(b) Such Holder shall not hereafter give any
subordination in respect of the Subordinated Indebtedness, convert all
or any portion of the Subordinated Indebtedness to other securities of
the Company or its Subsidiaries or transfer or assign any of the
Subordinated Indebtedness to any person other than holders of the
Specified Senior Debt; or
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(c) Neither the Company nor such Holder otherwise shall
take or permit any action prejudicial to or inconsistent with the
priority of the holders of Senior Indebtedness over the Holders that
is created by this Indenture.
Section 1009. Reliance.
Each Holder of a Security by its acceptance thereof further
understands that this Indenture constitutes a continuing offer to all persons
who become holders of, or continue to hold Specified Senior Debt (whether such
Senior Indebtedness was created or acquired before or after the date of this
Indenture).
Section 1010. No Waiver.
No course of dealing by the Collateral Agent or any holder of
Senior Indebtedness, nor any failure on the part of the Collateral Agent or any
holder of Senior Indebtedness to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law. No holder of
Senior Indebtedness shall be prejudiced in its right to enforce subordination
of the Subordinated Indebtedness by any act or failure to act by the Company or
anyone in custody of the assets or property of the Company or its Subsidiaries.
Section 1011. Validity of Subordinated Indebtedness and
Senior Indebtedness.
(a) The provisions of this Indenture subordinating the
Subordinated Indebtedness are solely for the purpose of defining the
relative rights of the holders of Senior Indebtedness and the Holders
and shall not impair, as between the Company and the Holders, the
obligation of the Company, which is unconditional and absolute, to pay
the Subordinated Indebtedness in accordance with its terms, nor shall
any such provisions, except as otherwise set forth in Article Five and
Section 1006(b), prevent Indebtedness from exercising all remedies
otherwise permitted by applicable law or under any instrument or
agreement evidencing the Subordinated Indebtedness upon default
thereunder, subject to the rights of the holders of the Specified
Senior Debt hereunder to receive cash, property or securities or any
other Distribution of Assets otherwise payable or deliverable to the
Holders until the Specified Senior Debt is paid in full.
(b) This Article Ten shall be effective notwithstanding
any defect in the validity or enforceability of any instrument or
document evidencing the Senior Indebtedness.
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Section 1012. Successors.
Each of the provisions of this Article Ten shall be binding
upon each Holder and its representatives, successors, heirs and assigns and
shall inure to the benefit of the Collateral Agent, the holders of Senior
Indebtedness and their respective successors and assigns. Without limiting the
generality of the foregoing, any holder of Senior Indebtedness may assign or
otherwise transfer any portion of Senior Indebtedness held by such holder to
any other person or entity, and such other person or entity shall thereupon
become vested with all the rights in respect thereof granted to such
transferring holder of Senior Indebtedness, herein or otherwise.
Section 1013. Duties Limited.
The rights granted to the Collateral Agent and the holders of
Senior Indebtedness under this Article Ten are solely for their protection and
nothing herein contained imposes upon them any duties with respect to any
property of the Company, its Subsidiaries or of any Holder heretofore or
hereafter received by the Collateral Agent or the holders of Senior
Indebtedness.
Section 1014. Trustee to Effectuate Subordination.
Each Holder of a Security by its acceptance thereof authorizes
and directs the Trustee on its behalf to take such action as may be necessary
or appropriate to effectuate the subordination provided in this Article and
appoints the Trustee its attorney-in-fact for any and all such purposes.
Section 1015. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any payment to
or by the Trustee in respect of the Securities. Notwithstanding the provisions
of this Article or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts which would prohibit
the making of any payment to or by the Trustee in respect of the Securities,
unless and until the Trustee shall have received written notice thereof from
the Company, the Collateral Agent or a holder of Senior Indebtedness or from
any trustee, fiduciary or agent therefor; and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Section 601, shall be
entitled in all respects to assume that no such facts exist; provided, however,
that if the Trustee shall not have received the notice provided for in this
Section at least three Business Days prior to the date upon which by the terms
hereof any money may become payable for any purpose (including, without
limitation, the payment of the principal of or interest on any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to
the purpose for which such money was received and shall not
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<PAGE> 94
be affected by any notice to the contrary which may be received by it within
three Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee,
fiduciary or agent therefor) to establish that such notice has been given by a
holder of Senior Indebtedness (or a trustee, fiduciary or agent therefor). In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
Section 1016. Rights of Trustee as a Holder of Senior
Indebtedness; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior
Indebtedness which may at any time be held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder. Nothing in this
Article shall apply to claims of, or payments to, the Trustee under or pursuant
to Section 607. The Trustee will not have any duty to the holders of Senior
Indebtedness, and will not be liable to any of them, if the Trustee will pay
over or distribute to Holders or the Company or any other person moneys or
assets or securities to which any holder of Senior Indebtedness is entitled by
virtue of this Article 10 or otherwise. The Trustee shall not be deemed to
have any fiduciary duty to any holder of Senior Indebtedness. No implied
covenant or obligation with respect to any holder of Senior Indebtedness shall
be read into this Indenture.
Section 1017. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that Section 1016 shall not apply to the Company or
any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
* * * * *
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This Indenture may be signed in counterparts with the same
effect as if the signatures to each counterpart were upon a single instrument,
and all such counterparts together shall be deemed an original of this
Indenture.
IN WITNESS WHEREOF, we have set our hands as of the day and year first above
written.
HUNTWAY PARTNERS, L.P.,
a Delaware limited partnership
By HUNTWAY MANAGING PARTNER, L.P.,
its Managing General Partner
By The Huntway Division of
Reprise Holdings, Inc.,
its Sole General Partner
By:________________________________
Name: __________________________
Title: President
IBJ SCHRODER BANK & TRUST COMPANY,
as Trustee
By:____________________________________
Name: ______________________________
Title:
The undersigned joins in the execution of this Indenture as of the day and year
first above written with respect to Section 422 hereof.
SUNBELT REFINING COMPANY, L.P.,
a Delaware limited partnership
By HUNTWAY PARTNERS, L.P.,
its Sole General Partner
By Huntway Managing Partner, L.P.,
its Managing General Partner
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<PAGE> 96
By The Huntway Division of
Reprise Holdings, Inc.,
its Sole General Partner
By:___________________________________
Name:
Title: President
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<PAGE> 97
EXHIBIT A
(FACE OF SECURITY)
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR REGISTERED OR QUALIFIED UNDER THE SECURITIES LAWS OF ANY STATE, AND
MAY BE OFFERED AND SOLD ONLY IF REGISTERED OR QUALIFIED, AS THE CASE MAY BE,
PURSUANT TO THE RELEVANT PROVISIONS OF THE FEDERAL AND STATE SECURITIES LAWS OR
IF AN EXEMPTION FROM SUCH REQUIREMENTS IS APPLICABLE.
THIS SECURITY AND THE PAYMENT HEREOF ARE SUBJECT TO AND GOVERNED BY THE TERMS
OF AN AMENDED AND RESTATED JUNIOR SUBORDINATED DEBENTURE INDENTURE (INCLUDING
THE SUBORDINATION PROVISIONS THEREOF PURSUANT TO WHICH THIS SECURITY IS
SUBORDINATE TO CERTAIN SENIOR INDEBTEDNESS DESCRIBED THEREIN), DATED AS OF
__________, 1996 BY AND BETWEEN HUNTWAY PARTNERS, L.P. AND THE TRUSTEE NAMED
THEREIN, AND THE PROVISIONS OF SUCH JUNIOR SUBORDINATED DEBENTURE INDENTURE ARE
INCORPORATED HEREIN BY THIS REFERENCE AND MADE A PART HEREOF.
HUNTWAY PARTNERS, L.P.
JUNIOR SUBORDINATED DEBENTURES
DUE 2005
No. ______ $_________
HUNTWAY PARTNERS, L.P., a Delaware limited partnership (herein
called the "Company," which term includes any successor under the Indenture
hereinafter referred to), for value received, hereby promises to pay
to______________________________________ or registered assigns, the principal
sum of ___________________
_______________________________________________________________ Dollars when
and as due under the terms of this Security and the Indenture, in the manner
referred to below, and to pay interest prior to default thereon from the later
of January 1, 1996 or the most recent date through which interest has been paid
hereon at the rate (the "Interest Rate") of 12% per annum. The Interest Rate
also is subject to increase as provided in Sections 503 and 515 of the
Indenture. Interest on this Security shall be paid on each December 31 (each
an "Interest Payment Date"), commencing on the first such date to occur after
the issuance hereof and continuing until the principal amount of and all
accrued interest on this Security has been paid in full; provided, however,
until payment in full of the principal amount of and all accrued
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<PAGE> 98
interest (including Secondary Securities, as defined in the Collateralized Note
Indenture, issued with respect thereto) on the Senior Securities, accrued
interest on this Security shall be paid not in cash but solely through the
issuance on each Interest Payment Date of Units (as defined in the Indenture)
with an aggregate Current Market Value (measured as of the Unit Valuation Date
immediately preceding the Interest Payment Date) equal to the accrued but
unpaid interest. After the principal amount of and all accrued interest
(including Secondary Securities, as defined in the Collateralized Note
Indenture, issued with respect thereto) on the Senior Securities has been paid
in full, interest accrued on this Security shall be due and payable in cash on
each Interest Payment Date until payment in full of this Security. If the
final payment in full of the principal amount of and all accrued interest
(including Secondary Securities, as defined in the Collateralized Note
Indenture, issued with respect thereto) on the Senior Securities does not fall
on an Interest Payment Date, then interest accrued through the date of such
final payment shall be paid through the issuance of Units and interest accrued
after such date shall be paid in cash, with such issuance and payment to be
made on the next Interest Payment Date. Each issuance of Units in
satisfaction of amounts of interest payable on the Securities shall be made pro
rata with respect to the Outstanding Securities. To the extent lawful and
enforceable, interest on Defaulted Interest and interest on the principal
amount of Securities shall accrue at the applicable Interest Rate, as increased
pursuant to Sections 503 and 515.
The principal of this Security shall be payable on December
31, 2005, unless the unpaid principal of this Security becomes due and payable
at an earlier date by declaration of acceleration in accordance with the terms
of the Indenture or otherwise. The Company shall not pay any principal
payments with respect to this Security until the accrued interest (including
Secondary Securities, as defined in the Collateralized Note Indenture, issued
with respect thereto) on and the principal amount of the Senior Securities has
been paid in full.
The interest payable on this Security on any Interest Payment
Date will, as provided in the Indenture, be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
March 1, June 1, September 1 or December 1 (whether or not a Business Day), as
the case may be, immediately preceding such Interest Payment Date. After the
provisions of the Indenture become subject to the requirements of the Trust
Indenture Act, any such interest not so punctually paid shall forthwith cease
to be payable to the Holder on such Regular Record Date, and may be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture. Except with respect to
the payment of accrued interest through the issuance of Units, payment of the
principal of and interest on this Security will be made by wire transfer to a
United States dollar account
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<PAGE> 99
maintained by the Holder of this Security at a Depository Institution in the
United States as reflected on the Security Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
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<PAGE> 100
IN WITNESS WHEREOF, the Company has caused this Security to be
duly executed.
Dated: ________, 1996 HUNTWAY PARTNERS, L.P.,
a Delaware limited partnership
By HUNTWAY MANAGING PARTNER, L.P.,
its Managing General Partner
By The Huntway Division of
Reprise Holdings, Inc.,
its Sole General Partner
By: ____________________________
Name: ______________________
Title: _____________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Junior Subordinated Debentures Due 2005
described in the within-mentioned Indenture.
IBJ SCHRODER BANK & TRUST COMPANY,
as Trustee
By: _______________________________
Name: _________________________
Title: ________________________
DATED: _________, 1996
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<PAGE> 101
(BACK OF SECURITY)
This Security is one of a duly authorized issue of Securities
of the Company designated as its Junior Subordinated Debentures Due 2005
(herein called the "Securities"), limited (except as otherwise provided in the
Indenture referred to below) in aggregate original principal amount to
$2,070,000, which may be issued under an indenture (herein called the
"Indenture"), dated as of __________, 1996 between the Company and IBJ Schroder
Bank & Trust Company, a New York banking corporation, trustee (herein called
the "Trustee," which term includes any successor Trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Company, the Trustee and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered. The terms and conditions of the
Indenture are incorporated herein by this reference, and by acceptance hereof,
the Holder of this Security assents to all of the terms and conditions of the
Indenture. Certain capitalized terms used but not defined herein shall have
the meanings given to them in the Indenture.
Under certain circumstances specified in the Indenture, the
Securities are subject to redemption upon not less than 30 nor more than 60
days' notice by first-class mail, as a whole or in part, at a Redemption Price
equal to 100% of the principal amount being redeemed, together in the case of
any such redemption with accrued interest thereon to the Redemption Date, all
as provided in the Indenture.
In the case of any redemption of Securities, interest
installments whose Stated Maturity is on or prior to the Redemption Date will
be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Regular Record
Date referred to on the face hereof. Securities (or portions thereof) for
whose redemption and payment provision is made in accordance with the Indenture
shall cease to bear interest from and after the date fixed for redemption.
In the event of redemption of this Security in part only, a
new Security or Securities for the unredeemed portion hereof shall be issued in
the name of the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing and the
holders of the Senior Indebtedness have consented to the taking of such action,
the principal of all the Securities may be declared, or may become, due and
payable in the manner and with the effect provided in the Indenture.
The Indenture may not be amended prior to the indefeasible
payment in full of the Senior Indebtedness. After such time, the Indenture
permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of
the Holders under the Indenture at any time by the Company and the Trustee with
the consent of the Requisite Holders. The Indenture also contains
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<PAGE> 102
provisions permitting the Requisite Holders, on behalf of the Holders of all of
the Securities, to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and the
consequences of such defaults. Any such consent or waiver by or on behalf of
the Holder of this Security shall be conclusive and binding upon such Holder
and upon all future Holders of this Security and of any Security issued upon
the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Security at the times, place, and rate, and in the manner,
herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable on
the Security Register of the Company, upon surrender of this Security for
registration of transfer at the office or agency of the Company maintained for
such purpose in New York, New York, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to, the Company and the
Security Registrar duly executed by, the Holder hereof or its attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
The Securities are issuable only in registered form without
coupons. As provided in the Indenture and subject to certain limitations
therein set forth, the Securities are exchangeable for a like aggregate
principal amount of Securities of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any registration of
transfer or exchange or redemption of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to and at the time of due presentment of this Security
for registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security
be overdue, and neither the Company, the Trustee nor any agent shall be
affected by notice to the contrary.
Customary abbreviations may be used in the name of a Holder or
an assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=Custodian), and U/G/M/A (=Uniform Gifts to Minors
Act).
A-6
<PAGE> 103
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to:
Secretary, Huntway Partners, L.P., 25129 The Old Road, Suite 322, Newhall,
California, 91381.
I/We assign and transfer this Security to:
_______________________________________________________
Insert assignee's soc. sec. or tax ID no.:_____________
______________________________________________________
______________________________________________________
______________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________
_______________________________________________________ agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him or her.
Dated: ______________ Signed:_____________________________
________________________________________________________________
(Sign exactly as your name appears on the other side of this Security)
Signature Guaranteed by
_______________________________
A-7
<PAGE> 1
EXHIBIT T3F
Certain Sections of this Indenture Relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Indenture
Trust Indenture Section
--------------- ---------
<S> <C> <C> <C>
Sections 310 (a) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608
(a) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608
(a) (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 614
(a) (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a) (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Sections 311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 612
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 612
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Sections 312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701, 702
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702
Sections 313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(b) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
Sections 314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409, 102
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
</TABLE>
<PAGE> 2
<TABLE>
<CAPTION>
Indenture
Trust Indenture Section
--------------- ---------
<S> <C> <C> <C>
(c) (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Sections 315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601, 603
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514
Sections 316 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
last sentence ("Outstanding")
(a) (1) (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512
(a) (1) (B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Sections 317 (a) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 505
(a) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403
Sections 318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
</TABLE>
-2-
