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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 31, 1997
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HUNTWAY PARTNERS, L.P.
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(Exact name of registrant as specified in its charter)
Delaware 36-3601653
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(State of other jurisdiction (IRS Employer Identification Number)
of incorporation)
1-10091
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(Commission File Number)
25129 The Old Road, Suite 322, Newhall, California 91381
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (805) 286-1582
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
See the Index to Exhibits attached hereto.
2
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
HUNTWAY PARTNERS, L.P.
(Registrant)
Dated: November 14, 1997 By: /s/ Warren J. Nelson
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Warren J. Nelson
Executive Vice President and Chief
Financial Officer
3
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INDEX TO EXHIBITS
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Exhibit
Number
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4.1 Indenture dated as of October 31, 1997 between the Company and State Street Bank and Trust Company, as
trustee ("State Street"), pursuant to which the 9 1/4% Senior Subordinated Secured Convertible Notes
due 2007 were issued.
4.2 Form of 9 1/4% Senior Subordinated Secured Convertible Note (included in Exhibit 4.1).
10.1 Sequencing and Amendatory Agreement dated as of October 31, 1997 among the Company, Sunbelt Refining
Company, L.P., Lighthouse Investors, L.L.C., B III Capital Partners, L.P., Contrarian Capital Fund I
L.P., Contrarian Capital Fund II L.P., Bankers Trust Company, Massachusetts Mutual Life Insurance
Company, Mellon Bank, N.A., as trustee for First Plaza Group Trust, Oppenheimer & Company, Inc., as
agent for itself and as agent for Oppenheimer Horizon Partners, L.P., Oppenheimer Institutional Horizon
Partners, L.P., Oppenheimer International Horizon Fund II Ltd. and The & Trust, The IBM Retirement Plan
Trust, Lindner Growth Fund, Madison Dearborn Partners III and First Chicago Equity Corporation, United
States Trust Company of New York, as Collateral Agent under the Intercreditor Agreement, State Street
Bank and Trust Company, as trustee under the indenture pursuant to which the Company's 9 1/4% Senior
Subordinated Secured Convertible Notes were issued, and Fleet National Bank, as trustee under the
indenture pursuant to which the 12% Senior Notes (Other) were issued.
10.2 Exchange and Purchase Agreement entered into as of October 31, 1997, by and among the Company,
Lighthouse Investors, L.L.C., B III Capital Partners, L.P., Contrarian Capital Fund I, L.P., Contrarian
Capital Fund II, L.P., Oppenheimer & Company, Inc., Oppenheimer Horizon Partners, L.P., Oppenheimer
Institutional Horizon Partners, L.P., Oppenheimer Institutional Horizon Partners, L.P. and The & Trust,
First Plaza Group Trust and The IBM Retirement Plan Trust.
10.3 Amended and Restated Registration Rights Agreement entered into as of October 31, 1997, by and among
the Company, Lighthouse Investors, L.L.C., B III Capital Partners, L.P., Contrarian Capital Fund I,
L.P., Contrarian Capital Fund II, L.P., Mellon Bank, N.A., as trustee for Frist Plaza Group Trust,
Oppenheimer & Company, Inc., as agent for itself and Oppenheimer Horizon Partners, L.P., Oppenheimer
Institutional Horizon Partners, L.P., Oppenheimer Institutional Horizon Partners, L.P., The & Trust and
The IBM Retirement Plan Trust, First Chicago Equity Corporation and Madison Dearborn Partners III.
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EXHIBIT 4.1
HUNTWAY PARTNERS, L.P.
as Issuer
$21,750,000
9 1/4% Senior Subordinated Secured Convertible Notes
due 2007
INDENTURE
Dated as of October 15, 1997
STATE STREET BANK AND TRUST COMPANY
as Trustee
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02 Other Definitions . . . . . . . . . . . . . . . . . . . . . . . 14
1.03 Incorporation by Reference of Trust Indenture Act . . . . . . . 15
1.04 Rules of Construction . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 2
THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.01 Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . 16
2.02 Execution and Authentication. . . . . . . . . . . . . . . . . . 16
2.03 Registrar, Paying Agent and Conversion Agent. . . . . . . . . . 16
2.04 Paying Agent to Hold Money in Trust . . . . . . . . . . . . . . 17
2.05 Securityholder Lists. . . . . . . . . . . . . . . . . . . . . . 17
2.06 Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . 17
2.07 Replacement Securities. . . . . . . . . . . . . . . . . . . . . 18
2.08 Outstanding Securities. . . . . . . . . . . . . . . . . . . . . 18
2.09 Treasury Securities . . . . . . . . . . . . . . . . . . . . . . 19
2.10 Temporary Securities. . . . . . . . . . . . . . . . . . . . . . 19
2.11 Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.12 Defaulted Interest. . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 3
REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.01 Notices to Trustee. . . . . . . . . . . . . . . . . . . . . . . 20
3.02 Selection of Securities to Be Redeemed. . . . . . . . . . . . . 20
3.03 Notice of Redemption. . . . . . . . . . . . . . . . . . . . . . 21
3.04 Effect of Notice of Redemption. . . . . . . . . . . . . . . . . 22
3.05 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . 22
3.06 Securities Redeemed in Part . . . . . . . . . . . . . . . . . . 23
3.07 Conversion Arrangement on Call for Redemption . . . . . . . . . 23
3.08 Optional Redemption for Cash. . . . . . . . . . . . . . . . . . 24
3.09 Optional Redemption for Common Stock. . . . . . . . . . . . . . 24
3.10 Mandatory Redemption. . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE 4
COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
4.01 Payment of Securities . . . . . . . . . . . . . . . . . . . . . 25
4.02 Maintenance of Office or Agency . . . . . . . . . . . . . . . . 25
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4.03 SEC Reports . . . . . . . . . . . . . . . . . . . . . . . . . . 26
4.04 Compliance Certificate . . . . . . . . . . . . . . . . . . . . 26
4.05 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.06 Stay, Extension and Usury Laws . . . . . . . . . . . . . . . . 27
4.07 Limitation on Restricted Payments . . . . . . . . . . . . . . . 27
4.08 Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries . . . . . . . . . . . . . . 29
4.09 Limitation on Incurrence of Indebtedness and Issuance
of Disqualified Stock . . . . . . . . . . . . . . . . . . . . . 30
4.10 Limitation on Transactions With Affiliates . . . . . . . . . . 31
4.11 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . 32
4.12 Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
4.13 Redesignation of Unrestricted Subsidiary . . . . . . . . . . . 33
4.14 Change of Control . . . . . . . . . . . . . . . . . . . . . . . 33
4.15 Maintenance of Properties . . . . . . . . . . . . . . . . . . . 34
4.16 Compliance with Laws. . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE 5
SUCCESSORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5.01 Merger, Consolidation or Sale of Assets . . . . . . . . . . . . 35
5.02 Successor Substituted . . . . . . . . . . . . . . . . . . . . 36
ARTICLE 6
DEFAULTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . 36
6.01 Events of Default . . . . . . . . . . . . . . . . . . . . . . . 36
6.02 Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . 39
6.03 Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . 39
6.04 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . 39
6.05 Control by Majority . . . . . . . . . . . . . . . . . . . . . . 40
6.06 Limitation on Suits . . . . . . . . . . . . . . . . . . . . . 40
6.07 Rights of Securityholders to Receive Payment . . . . . . . . . 40
6.08 Collection Suit by Trustee . . . . . . . . . . . . . . . . . . 41
6.09 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . 41
6.10 Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . 41
6.11 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE 7
TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
7.01 Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . 42
7.02 Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . 43
7.03 Individual Rights of Trustee. . . . . . . . . . . . . . . . . . 43
7.04 Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . 44
7.05 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . 44
7.06 Reports by Trustee to Securityholders . . . . . . . . . . . . . 44
7.07 Compensation and Indemnity . . . . . . . . . . . . . . . . . . 44
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7.08 Replacement of Trustee . . . . . . . . . . . . . . . . . . . . 45
7.09 Successor Trustee by Merger, etc. . . . . . . . . . . . . . . . 46
7.10 Eligibility; Disqualification . . . . . . . . . . . . . . . . . 46
7.11 Preferential Collection of Claims Against Issuers . . . . . . . 47
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE . . . . . . . . . . . . . . . 47
8.01 Option to Effect Legal Defeasance or Covenant Defeasance. . . . 47
8.02 Legal Defeasance and Discharge. . . . . . . . . . . . . . . . . 47
8.03 Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . 47
8.04 Conditions to Legal or Covenant Defeasance. . . . . . . . . . . 48
8.05 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions . . . . . . . . . . . . . . . . 49
8.06 Repayment to the Issuer . . . . . . . . . . . . . . . . . . . . 50
8.07 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE 9
AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
9.01 Without Consent of Securityholders . . . . . . . . . . . . . . 51
9.02 With Consent of Securityholders . . . . . . . . . . . . . . . . 51
9.03 Compliance with Trust Indenture Act . . . . . . . . . . . . . . 53
9.04 Revocation and Effect of Consents . . . . . . . . . . . . . . . 53
9.05 Notation on or Exchange of Securities . . . . . . . . . . . . . 53
9.06 Trustee to Sign Amendments, etc. . . . . . . . . . . . . . . . 53
ARTICLE 10
COLLATERAL AND SECURITY
AND INTERCREDITOR AGREEMENT . . . . . . . . . . . . . . . . . . . . . 54
10.01 Collateral Documents . . . . . . . . . . . . . . . . . . . . . 54
10.02 Recording and Opinions . . . . . . . . . . . . . . . . . . . . 54
10.03 Release of Collateral . . . . . . . . . . . . . . . . . . . . . 55
10.04 Certificates of the Issuer. . . . . . . . . . . . . . . . . . . 55
10.05 Authorization of Actions to be Taken by the Trustee under the
Intercreditor Agreement . . . . . . . . . . . . . . . . . . . . 56
10.06 Authorization of Receipt of Funds by the Trustee under the
Intercreditor Agreement . . . . . . . . . . . . . . . . . . . . 56
10.07 Permitted Investments . . . . . . . . . . . . . . . . . . . . . 56
10.08 Intercreditor Agreement . . . . . . . . . . . . . . . . . . . . 57
ARTICLE 11
CONVERSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
11.01 Conversion Privilege . . . . . . . . . . . . . . . . . . . . . 57
11.02 Conversion Procedure. . . . . . . . . . . . . . . . . . . . . . 58
11.03 Fractional Shares . . . . . . . . . . . . . . . . . . . . . . . 59
11.04 Taxes on Conversion . . . . . . . . . . . . . . . . . . . . . . 59
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11.05 Issuer to Provide Stock . . . . . . . . . . . . . . . . . . . . 59
11.06 Adjustment for Change in Capital Stock. . . . . . . . . . . . . 60
11.07 Adjustment for Rights Issue . . . . . . . . . . . . . . . . . . 60
11.08 Adjustment for Other Distributions. . . . . . . . . . . . . . . 61
11.09 When Adjustment May Be Deferred . . . . . . . . . . . . . . . . 63
11.10 When No Adjustment Required . . . . . . . . . . . . . . . . . . 64
11.11 Notice of Adjustment. . . . . . . . . . . . . . . . . . . . . . 64
11.12 Voluntary Increase. . . . . . . . . . . . . . . . . . . . . . . 64
11.13 Notice of Certain Transactions. . . . . . . . . . . . . . . . . 64
11.14 Reorganization of Issuer; Special Distributions . . . . . . . . 65
11.15 Trustee's Adjustment Disclaimer . . . . . . . . . . . . . . . . 65
11.16 Simultaneous Adjustments. . . . . . . . . . . . . . . . . . . . 66
11.17 Successive Adjustments. . . . . . . . . . . . . . . . . . . . . 66
11.18 Rights Issued in Respect of Common Stock Issued
upon Conversion . . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE 12
SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
12.01 Agreement to Subordinate . . . . . . . . . . . . . . . . . . . 66
12.02 Certain Definitions . . . . . . . . . . . . . . . . . . . . . . 66
12.03 Liquidation; Dissolution; Bankruptcy . . . . . . . . . . . . . 67
12.04 Default on Senior Indebtedness . . . . . . . . . . . . . . . . 68
12.05 Acceleration of Securities . . . . . . . . . . . . . . . . . . 69
12.06 When Distribution Must Be Paid Over . . . . . . . . . . . . . . 69
12.07 Notice by the Issuer. . . . . . . . . . . . . . . . . . . . . . 69
12.08 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . 69
12.09 Relative Rights . . . . . . . . . . . . . . . . . . . . . . . . 70
12.10 Subordination May Not Be Impaired by the Issuer . . . . . . . . 70
12.11 Distribution or Notice to Representative. . . . . . . . . . . . 71
12.12 Rights of Trustee and Paying Agent. . . . . . . . . . . . . . . 71
12.13 Authorization to Effect Subordination . . . . . . . . . . . . . 72
12.14 Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE 13
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
13.01 Trust Indenture Act Controls. . . . . . . . . . . . . . . . . . 72
13.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
13.03 Communication by Securityholders with Other Securityholder. . . 74
13.04 Certificate and Opinion as to Conditions Precedent. . . . . . . 74
13.05 Statements Required in Certificate or Opinion . . . . . . . . . 74
13.06 Rules by Trustee and Agents . . . . . . . . . . . . . . . . . . 75
13.07 Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . . 75
13.08 No Recourse against Others. . . . . . . . . . . . . . . . . . . 75
13.09 Duplicate Originals . . . . . . . . . . . . . . . . . . . . . . 75
13.10 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . 75
13.11 No Adverse Interpretation of Other Agreements . . . . . . . . . 75
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13.12 Successors. . . . . . . . . . . . . . . . . . . . . . . . . . . 76
13.13 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . 76
13.14 Counterpart Originals . . . . . . . . . . . . . . . . . . . . . 76
13.15 Table of Contents, Headings, etc. . . . . . . . . . . . . . . . 76
13.16 Special Rights of Certain Securityholders . . . . . . . . . . . 76
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INDENTURE dated as of October 15, 1997 between Huntway Partners, L.P.,
a Delaware limited partnership ("Huntway"), as issuer, and State Street Bank
and Trust Company, a Massachusetts bank and trust company, as trustee
("Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the holders of the Securities.
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"Acquired Indebtedness" means Indebtedness of a person existing at the
time such person became a Subsidiary and not incurred in connection with, or in
contemplation of, such person becoming a Subsidiary, treating for purposes of
this definition as Indebtedness the unused portion of revolving loan
commitments provided in agreements to which such person is a party as borrower
or guarantor.
"Affiliate" of any specified person means any other person directly or
indirectly controlling, controlled by or under common control with such
specified person. For the purposes of this definition, "control" (including,
with correlative meanings, the terms "controlling," "controlled by" and "under
common control with"), as used with respect to any person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such person, whether through the
ownership of voting securities, by agreement or otherwise; provided, however,
that beneficial ownership of 50% of the voting securities of a person shall be
deemed to be control.
"Agent" means any Registrar, Paying Agent, Conversion Agent or
co-registrar.
"Anticipated Merger" means the merger of Huntway into a corporation
organized and existing under the laws of the United States, any state thereof
or the District of Columbia that has conducted no business and incurred no
liabilities solely for the purpose of changing the form in which Huntway's
business is conducted.
"Asset Sale" means, with respect to any person, the sale, lease,
conveyance, disposition or other transfer, that does not constitute a
Restricted Payment or an Investment, by such person of any of its assets other
than cash (including by way of a sale-leaseback transaction and including the
issuance, sale or other transfer of any of the capital stock of any Subsidiary
of such person) other than to the Issuer or any of its Wholly Owned
Subsidiaries; provided that notwithstanding the foregoing, the term "Asset
Sale" shall not include (i) any transaction permitted pursuant to Article 5
hereof, (ii) the sale or lease of inventory or accounts in the ordinary course
of business, (iii) the sale, conveyance, disposition or other transfer of the
capital stock of an Unrestricted Subsidiary, (iv) the sale or lease of assets
in any one transaction or series of related transactions the Net Proceeds of
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which (which, in the case of any lease, shall be the annual (or, for any period
of less than one year, annualized) rental payments with respect thereto) do not
exceed $2 million; provided that the aggregate Net Proceeds of all such sales
or leases pursuant to this clause (iv) shall not exceed $2 million; provided,
further, that the proceeds of sales or leases of assets pursuant to this clause
(iv) which are reinvested by the Issuer or any of its Subsidiaries in specified
assets or a specified business shall not be counted towards such $2 million
aggregate limitation; (v) the surrender or waiver of contract rights or the
settlement, release or surrender of contract, tort or other claims of any kind;
(vi) the grant in the ordinary course of business of any non-exclusive license
of patents, trademarks, registrations therefor and other similar intellectual
property and (vii) the receipt of proceeds of insurance paid on account of the
loss of or damage to any asset or awards of compensation for any asset taken by
condemnation, eminent domain or similar proceeding, or the receipt of proceeds
of business interruption insurance. Lease payments received shall be
considered sale proceeds for purposes of this definition; provided that
payments received with respect to operating leases of property or equipment
aggregating less than $500,000 per annum shall not constitute sale proceeds for
purposes of this definition.
"Board of Directors" means the Board of Directors of the Issuer or any
authorized committee of such Board of Directors; except that, so long as
Huntway remains the Issuer, "Board of Directors" means the Managing General
Partner of Huntway pursuant to the Huntway Partnership Agreement.
"Business Day" means any day other than a Legal Holiday.
"capital lease" means, at the time any determination thereof is to be
made, any lease of property, real or personal, in respect of which the present
value of the minimum rental commitment would be capitalized on a balance sheet
of the lessee in accordance with GAAP.
"capital lease obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital
lease which would at such time be so required to be capitalized on the balance
sheet in accordance with GAAP.
"capital stock" means any and all shares, interests, participations or
other equivalents (however designated) of corporate stock or general or limited
partnership interests.
"Cash Equivalents" means (i) United States Government Securities, (ii)
time deposits and certificates of deposit of any commercial bank organized in
the United States having capital and surplus in excess of $100,000,000 or any
commercial bank organized under the laws of any other country that is a member
of the OECD having total assets in excess of $100,000,000 with a maturity date
not more than one year from the date of acquisition, (iii) repurchase
obligations with a term of not more than seven days for underlying securities
of the types described in clause (i) above entered into with any bank meeting
the qualifications specified in clause (ii) above, (iv) 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 90 days after the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable from S&P or the
highest available from Moody's (or, if at any time neither S&P nor Moody's
shall be rating such obligations, then the highest available rating from such
other nationally recognized rating service acceptable to
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the Trustee), (v) commercial paper issued by the parent corporation of any
commercial bank organized in the United States having capital and surplus in
excess of $100,000,000 or any commercial bank organized under the laws of any
other country that is a member of the OECD having total assets in excess of
$100,000,000, and commercial paper issued by others having one of the two
highest ratings obtainable from S&P or the highest available from Moody's (or,
if at any time neither S&P nor Moody's shall be rating such obligations, then
from such other nationally recognized rating service acceptable to the Trustee)
and in each case maturing within one year after the date of acquisition, (vi)
overnight bank deposits and bankers' acceptances at any commercial bank
organized in the United States having capital and surplus in excess of
$100,000,000 or any commercial bank organized under the laws of any other
country that is a member of the OECD having total assets in excess of
$100,000,000, (vii) deposits available for withdrawal on demand with any
commercial bank organized in the United States having capital and surplus in
excess of $50,000,000 or any commercial bank organized under the laws of any
other country that is a member of the OECD having total assets in excess of
$50,000,000 and (viii) investments in money market funds substantially all of
whose assets comprise securities of the types described in clauses (i) through
(vii).
"Change of Control" means such time as (i) any person, entity or group
(other than (A) prior to the Anticipated Merger, either or both general
partners of the Issuer, or a group of which the same constitute a majority in
interest, and (B) thereafter, one or more initial purchasers of the Securities
or Related Parties with respect thereto, or a group of which the same
constitute a majority in interest) becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act) of more than 50% of the voting power of
the voting capital stock of the Issuer, or (ii) the sale, lease or transfer of
all or substantially all of the assets of the Issuer to any person or group
other than in a transaction permitted pursuant to Article 5 hereof that does
not have the result set forth in clause (i). "Related Party" with respect to
any initial purchaser of the Securities means (A) any controlling stockholder,
partner or member (or spouse of such stockholder, partner or member), 80% (or
more) owned Subsidiary, or spouse or immediate family member (in the case of
any individual), of such initial purchaser or (B) any trust, corporation,
partnership or other entity, the beneficiaries, stockholders, partners, owners
or persons beneficially holding an 80% or more controlling interest of which
consist of such initial purchaser and/or such other persons referred to in the
immediately preceding clause (A).
"Closing" means the acquisition of Securities by the initial
purchasers of the Securities.
"Collateral" has the meaning given such term in the Intercreditor
Agreement.
"Collateral Agent" has the meaning given such term in the
Intercreditor Agreement.
"Collateral Documents" has the meaning given such term in the
Intercreditor Agreement.
"Common Stock" means common stock of the Issuer; except that, so long
as Huntway remains the Issuer, "Common Stock" means Common Units pursuant to
the Huntway Partnership Agreement.
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"Consolidated EBITDA" means, with respect to any person for any
period, the sum of, without duplication, (i) the Consolidated Net Income of
such person for such period, plus (ii) Fixed Charges of such person for such
period, plus (iii) provision for taxes based on income or profits for such
period (to the extent such income or profits were included in computing
Consolidated Net Income of such person for such period), plus (iv) consolidated
depreciation, amortization and other non-cash charges of such person for such
period. including any expenses paid by equity holders of such person required
to be reflected as expenses on the books and records of such person, minus (v)
cash payments with respect to any non-recurring, non-cash charges previously
added back pursuant to clause (iv).
"Consolidated Net Income" means, with respect to any person for any
period, the aggregate of the Net Income of such person and its Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP,
provided that (i) the Net Income of any person which is not a Subsidiary
(including any Unrestricted Subsidiary) or is accounted for by the equity
method of accounting shall be included only to the extent of the amount of
dividends or distributions paid to the referent person or a Subsidiary of the
referent person, but not in excess of such referent person's or Subsidiary's
pro rata share of such person's net income for such period, (ii) the Net Income
of any person acquired in a pooling of interests transaction for any period
prior to the date of such acquisition shall be excluded (it being expressly
understood, however, that the Net Income of Huntway shall not be excluded from
determinations of the Net Income of the Issuer that is the surviving
corporation in the Anticipated Merger), and (iii) Consolidated Net Income shall
not include the Net Income of any person attributable to any gain (but not
loss), together with any related provision for taxes on such gain (but not
loss), realized upon the sale or other disposition (including, without
limitation, dispositions pursuant to sale and leaseback transactions) of any
asset or property outside of the ordinary course of business (including without
limitation any such sale or disposition that would be accounted for as an
extraordinary item in accordance with GAAP) and any gain (but not loss)
realized upon the sale or other disposition by such person of any capital stock
or marketable securities other than Cash Equivalents.
"Consolidated Net Worth" means, with respect to any person, the sum
(without duplication) of (i) the consolidated equity of the common equity
holders of such person and its consolidated Subsidiaries plus (ii) the
respective amounts reported on such person's most recent balance sheet with
respect to any series of preferred stock that is not Disqualified Stock and is
not by its terms entitled to the payment of dividends or distributions unless
such dividends or distributions may be declared and paid only out of net
earnings in respect of the year of such declaration and payment, but only to
the extent of any cash received by such person upon issuance of such preferred
stock, less (x) all write-ups (other than write-ups resulting from foreign
currency translations and write-ups of assets of a going concern business made
within twelve months after the acquisition of such business) subsequent to the
date hereof in the book value of any asset owned by such person or a
consolidated Subsidiary of such person, (y) all investments in unconsolidated
Subsidiaries and in persons that are not Subsidiaries, including any
Unrestricted Subsidiary (except, in each case, investments in marketable
securities of such person listed on a national securities exchange registered
under the Exchange Act) after taking into account any write-downs in the value
of such investments to less than cost and (z) all unamortized debt discount and
expense and unamortized deferred financing charges, all of the foregoing
determined in accordance with GAAP.
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"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 13.02 or such other address as the Trustee may
give notice to the Issuer.
"Default" means any event which is, or after notice or passage of time
or both would become, an Event of Default.
"Disqualified Stock" means any Equity Interest which, by its terms (or
by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event (other than a Change of
Control in which the terms of such Equity Interest provide for payment in full
of the Securities prior to any payment with respect to such Equity Interest),
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder thereof, in whole or in
part, on or prior to the final maturity date of the Securities.
"Equity Interests" means capital stock or warrants, options or other
rights to acquire capital stock (but excluding any debt security which is
convertible into, or exchangeable for, capital stock).
"Existing Indebtedness" means Indebtedness of the Issuer or any
Subsidiary in existence on the date of this Indenture that is disclosed to the
initial purchasers of the Securities pursuant to the Exchange Agreement, until
such amounts are repaid.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fixed Charges" means, with respect to any person for any period, the
sum of (a) the consolidated interest expense (without giving effect to any
interest income) of such person, whether paid or accrued (without duplication),
to the extent such expense was deducted in computing Consolidated Net Income of
such person (including amortization of original issue discount, non-cash
interest payments, fees and charges with respect to letters of credit, the
interest component of capital leases and net payments, if any, in connection
with Hedging Obligations, but excluding amortization of deferred financing
fees), (b) the product of (i) all cash dividend payments (and non-cash dividend
payments in the case of a person that is a Subsidiary) on any series of
preferred stock of such person (except as provided below), times (ii) a
fraction, the numerator of which is one and the denominator of which is one
minus the then current combined federal, state and local statutory income tax
rate of such person, expressed as a decimal, in each case, on a consolidated
basis and in accordance with GAAP, and (c) one-third of all operating lease
payments of such person paid or accrued during such period, in each case, on a
consolidated basis and in accordance with GAAP. For purposes of this
definition, preferred stock shall not include preferred stock which (i) by its
terms does not permit dividends to be paid except to the extent permitted under
Section 4.07 hereof, (ii) makes no provision for election of directors by
holders of such stock and (iii) is not Disqualified Stock.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or such other statements by such other
entity as approved by a significant segment of the accounting profession, which
are in effect on the date of this Indenture.
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"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection or deposit in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness.
"Hedging Obligations" means, with respect to any person, (i) the
obligations of such person under interest rate swap agreements, interest rate
cap agreements and interest rate collar agreements, (ii) the net cost to such
person of foreign exchange contracts, currency protection arrangements and
crude oil price protection arrangements and (iii) obligations under other
similar agreements or arrangements designed to protect such person against
fluctuations in interest rates or currencies or prices of crude oil.
"Huntway Partnership Agreement" means the Amended and Restated
Agreement of Limited Partnership of Huntway dated as of November 8, 1988 as it
has been or may from time to time be amended, renewed, supplemented, restated
or otherwise modified.
"Indebtedness" means, with respect to any person, (without
duplication) any indebtedness of such person, whether or not contingent, (a) in
respect of borrowed money or evidenced by bonds, notes, debentures or similar
instruments or (b) in respect of letters of credit (or reimbursement
Obligations in respect thereof) or (c) representing the balance deferred and
unpaid of the purchase price of any property (including pursuant to capital
leases) or (d) representing any Hedging Obligations, except any such balance
that constitutes an accrued expense or a trade payable, if and to the extent
any of the foregoing indebtedness (other than letters of credit or
reimbursement Obligations in respect thereof, or Hedging Obligations) would
appear as a liability upon a balance sheet of such person prepared on a
consolidated basis in accordance with GAAP, and also includes, to the extent
not otherwise included, the Guarantee of items which would be included within
this definition.
"Indenture" means this Indenture as amended or supplemented from time
to time.
"Insolvency or Liquidation Proceeding" means any of (a) any insolvency
or bankruptcy case or proceeding, or any receivership, liquidation,
reorganization or other similar case or proceeding relative to the Issuer, or
to the creditors of the Issuer, as such, or to the assets of the Issuer, (b)
any liquidation, dissolution or other winding up of the Issuer, whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy
or (c) any assignment for the benefit of creditors or any other marshaling of
assets or liabilities of the Issuer.
"Intercreditor Agreement" means that certain Amended and Restated
Intercreditor and Collateral Trust Agreement dated as of December 12, 1996
among Bankers Trust Company, as LOC Bank, and Fleet National Bank, as Indenture
Trustee under the Senior Note Indenture, and the Financial Institutions listed
on the signature pages thereof and United States Trust Company of New York, as
Collateral Agent, as it has been or may from time to time be amended, renewed,
supplemented, restated or otherwise modified.
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"Investment" means any direct or indirect advance (other than advances
to customers in the ordinary course of business which are recorded as accounts
receivable or short term notes receivable on the balance sheet of any person or
its Subsidiaries), loan or other extension of credit or capital contribution to
(by means of any transfer of cash or other property to others or any payment
for property or services for the account or use of others), or any purchase or
acquisition of Equity Interests, bonds, notes (other than notes acquired from
customers in the ordinary course of business), debentures or other securities
issued by, any person. For the purposes of Section 4.07 hereof (i) the term
"Investment" shall include the fair market value of the net assets of any
Subsidiary at the time that such Subsidiary is designated an Unrestricted
Subsidiary, (ii) any property transferred to an Unrestricted Subsidiary shall
be valued at fair market value at the time of such transfer, in each case as
determined by the Board of Directors in good faith and (iii) any Investment
constituting an advance, loan, extension of credit or capital contribution
shall be deemed to be incurred only to the extent that it is not repaid in cash
or Cash Equivalents, provided that the amount credited for such repayment shall
not exceed the amount deducted as a result of such Investment.
"Issue Date" of any Security means the date on which the Security was
originally issued or deemed issued as set forth on the face of the Security.
"Issuer" means Huntway as obligor under the Securities, unless and
until a successor replaces Huntway in accordance with Article 5 hereof, and
thereafter means such successor.
"Junior Securities" means securities distributed to holders of the
Securities in an Insolvency or Liquidation Proceeding pursuant to a plan of
reorganization consented to by each class of Senior Indebtedness, but only if
all of the terms and conditions of such securities (including, without
limitation, term, tenor, interest, amortization, subordination, standstills,
covenants and defaults), are at least as favorable (and provide the same
relative benefits) to the holders of the Senior Indebtedness and to the holders
of any security distributed in such Insolvency or Liquidation Proceeding on
account of any such Senior Indebtedness as the terms and conditions of the
Securities and this Indenture are and provide to the holders of Senior
Indebtedness.
"Junior Subordinated Debentures" means the Issuer's 12% Junior
Subordinated Debentures Due 2005 issued and outstanding as of the Closing
pursuant to the Junior Subordinated Debenture Indenture, any additional such
Debentures issued pursuant to Section 307(a) of the Junior Subordinated
Indenture and any such Debentures authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other such Debentures
pursuant to such Indenture.
"Junior Subordinated Debenture Indenture" means the Amended and
Restated Junior Subordinated Debenture Indenture of December 12, 1996 between
the Issuer and the trustee named therein, pursuant to which the Junior
Subordinated Debentures are issued, as such indenture has been or may from time
to time be amended, renewed, supplemented, restated or otherwise modified.
"Letter of Credit Agreement" means the Letter of Credit and
Reimbursement Agreement dated as of June 23, 1993, between the Company, Sunbelt
and Bankers Trust Company, as such Agreement has been or may from time to time
be amended, renewed, supplemented, restated or otherwise modified.
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<PAGE> 14
"Letter of Credit Agreement Obligations" means Obligations as defined
in the 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 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 Uniform Commercial Code or comparable law of any
jurisdiction in respect of any of the foregoing.
"Moody's" means Moody's Investors Service, Inc.
"Net Income" of any person means the net income (or loss) of such
person, determined in accordance with GAAP.
"Net Proceeds" means the aggregate cash proceeds received by the
Issuer or any of its Subsidiaries in respect of any Asset Sale, net of (i) the
direct costs relating to such Asset Sale (including. without limitation, legal,
accounting and investment banking fees and sales commissions), (ii) any taxes
paid or payable as a result thereof and after taking into account any available
tax credits or deductions arising from such Asset Sale, (iii) any reserve for
adjustment in respect of the sale price of such asset or assets required by
GAAP and (iv) repayment of any Lien in respect of the asset sold.
"Obligations" means, with respect to any person, any principal,
premium. interest, penalties, expenses, fees, indemnifications, reimbursements,
damages and other liabilities payable under the documentation governing any
Indebtedness of such person including, without limitation, any amounts payable
by such person as a result of any Hedging Obligations.
"OECD" means the Office of European Community Development.
"Officers" means the President, the Chief Financial Officer, the
Treasurer, the Secretary or any Vice-President of the Issuer.
"Officers' Certificate" means a certificate signed by two Officers,
one of whom must be the President, a Vice- President or the Secretary of the
Issuer.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee. Such counsel may be an employee of or
counsel to the Issuer.
"Permitted Investments" means (i) cash or Cash Equivalents, (ii)
Investments in the Issuer or any directly owned Wholly Owned Subsidiary of the
Issuer (including a transaction with a person, the result of which is that such
person becomes such a directly owned Wholly Owned Subsidiary), or Investments
by the Issuer or any Subsidiary of the Issuer in a person, if as a result of
such
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<PAGE> 15
Investment (A) such person becomes a Subsidiary of the Issuer (other than a
directly owned Wholly Owned Subsidiary) and (a) executes and delivers to the
Trustee a supplemental indenture in form reasonably satisfactory to the Trustee
pursuant to which such Subsidiary shall guarantee all of the Obligations of the
Issuer with respect to this Indenture and the Securities to the extent
permitted by law and (b) delivers to the Trustee an Opinion of Counsel
reasonably satisfactory to the Trustee to the effect that such supplemental
indenture has been duly executed and delivered by such Subsidiary and is in
compliance with the terms of this Indenture; or (B) such person is merged or
consolidated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Issuer or a directly owned Wholly Owned
Subsidiary of the Issuer, (iii) Investments received as consideration for Asset
Sales (or transactions excluded from the definition of Asset Sale on account of
clause (iv) of the definition thereof) to the extent not otherwise prohibited
by this Indenture, (iv) securities received in connection with any good faith
settlement or bankruptcy proceeding involving a claim relating to a Permitted
Investment, (v) Hedging Obligations entered into in the ordinary course of
business in connection with the operation of the business of the Issuer and its
Subsidiaries or relating to (as determined in good faith by the Board of
Directors) or as required by any Indebtedness permitted to be incurred pursuant
to Section 4.09 hereof, (vi) prepaid expenses and loans or advances to
employees and similar items in the ordinary course of business, (vii)
endorsements of negotiable instruments and other similar negotiable documents,
and (viii) accounts receivable of the Issuer or any Subsidiary from the Issuer
or any Subsidiary and any Unrestricted Subsidiary arising out of the provision
of managerial or administrative services rendered in the ordinary course of
business.
"Permitted Liens" means (i) Liens for taxes, assessments, governmental
charges or claims which are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted; (ii) statutory Liens
of landlords and mechanics', carriers', warehousemen's, suppliers',
materialmen's, repairmen's, or other like Liens (including contractual
landlords' liens) arising in the ordinary course of business and with respect
to amounts not yet delinquent or being contested in good faith by appropriate
proceedings, if a reserve or other appropriate provision, if any, as shall be
required in conformity with GAAP shall have been made therefor; (iii) Liens
incurred or deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security; (iv) Liens incurred or deposits made to secure the performance of
tenders, bids, leases, statutory obligations, surety and appeal bonds,
government contracts, performance and return-of-money bonds and other
obligations of a like nature (exclusive of obligations for the payment of
borrowed money); (v) 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 business of the Issuer or any of
its Subsidiaries; (vi) Purchase Money Liens (including extensions and renewals
thereof); (vii) Liens securing reimbursement obligations with respect to
letters of credit which encumber only documents and other property relating to
such letters of credit and the products and proceeds thereof; (viii) judgment
and attachment Liens not giving rise to an Event of Default; (ix) Liens
encumbering deposits made to secure obligations arising from statutory,
regulatory, contractual or warranty requirements of the Issuer or its
Subsidiaries; (x) Liens arising out of consignment or similar arrangements for
the sale of goods entered into by the Issuer or any of its Subsidiaries in the
ordinary course of business of the Issuer and its Subsidiaries; (xi) any
interest or title of a lessor or sublessor in the property subject to any
capital lease obligation or operating lease; (xii) Liens arising from filing
Uniform
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<PAGE> 16
Commercial Code financing statements regarding leases permitted by this
Indenture; (xiii) leases or subleases granted to others not interfering in any
material respect with the business of the Issuer or any of its Subsidiaries;
(xiv) Liens in favor of custom and revenue authorities arising as a matter of
law to secure payment of customs duties in connection with the importation of
goods; and (xv) Liens arising from Indebtedness permitted under Section
4.09(c).
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Principal" or "Principal Amount" of a Security means the principal
amount as set forth on the face of such Security.
"Pro Forma Fixed Charge Coverage Ratio" means, for any period of four
consecutive fiscal quarters, in connection with any proposed incurrence of
Indebtedness, Restricted Payment, consolidation or merger or sale, assignment,
transfer, lease, conveyance or other disposition, as the case may be, the ratio
of (i) Consolidated EBITDA for such period to (ii) Pro Forma Fixed Charges for
such period, provided, however, that (a) in the event of an incurrence of
Indebtedness (other than revolving credit borrowings), Restricted Payment,
consolidation or merger, or sale, assignment, transfer, lease, conveyance or
other disposition, as the case may be, subsequent to the commencement of the
period for which the Pro Forma Fixed Charge Coverage Ratio is being calculated
but prior to the event for which the calculation of the Pro Forma Fixed Charge
Coverage Ratio is made, then the Pro Forma Fixed Charge Coverage Ratio will be
calculated giving pro forma effect to such event, as if the same had occurred
at the beginning of the applicable period, (b) in making such computation, the
Fixed Charges of such person attributable to interest on any Indebtedness
bearing a floating interest rate shall be computed on a pro forma basis as if
the rate in effect on the date of computation had been the applicable rate for
the entire period, (c) in making such computation, there shall be excluded from
Fixed Charges any Fixed Charges related to any amount of Indebtedness or
Disqualified Stock that was outstanding during or subsequent to the applicable
period but is not outstanding on the date of the event for which the
calculation of the Pro Forma Fixed Charge Coverage Ratio is made (including by
means of refinancing of such Indebtedness or Disqualified Stock on such date),
(d) in the event that the Issuer or any of its Subsidiaries consummates a
material acquisition or any Asset Sale subsequent to the commencement of the
period for which the Pro Forma Fixed Charge Coverage Ratio is being calculated
but prior to the event for which the calculation of the Pro Forma Fixed Charge
Coverage Ratio is made, then the Pro Forma Fixed Charge Coverage Ratio shall be
calculated giving pro forma effect to such material acquisition or Asset Sale
(including the incurrence or repayment of any Indebtedness in connection
therewith), as if the same had occurred at the beginning of the applicable
period and (e) the event for which the calculation of the Pro Forma Fixed
Charge Coverage is made shall be assumed to have occurred at the beginning of
the applicable period.
"Purchase Money Lien" means a Lien granted on an asset or property to
secure a Purchase Money Obligation permitted to be incurred under Section 4.09
of this Indenture and incurred solely to finance the acquisition of such asset
or property; provided, however, that such Lien encumbers only such asset or
property and is granted within 180 days of such acquisition.
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"Purchase Money Obligations" of any person means any obligations of
such person to any seller or any other person incurred or assumed to finance
the acquisition of real or personal property to be used in the business of such
person or any of its Subsidiaries in an amount that is not more than 100% of
the cost of such property, and incurred within 180 days after the date of such
acquisition (excluding accounts payable to trade creditors incurred in the
ordinary course of business).
"Responsible Officer" when used with respect to the Trustee, means any
officer within the corporate trust department of the Trustee located at the
Corporate Trust Office (or any successor group of the Trustee) and also means,
with respect to a particular corporate trust matter, any other officer of the
Trustee to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Restricted Investment" means any Investment other than a Permitted
Investment.
"S&P" means Standard & Poor's, a division of The McGraw-Hill
Companies, Inc.
"SEC" means the Securities and Exchange Commission.
"Securities" means the 9 1/4% Senior Subordinated Secured Convertible
Notes due 2007 issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Securityholder" means a holder of one or more Securities in whose
name such Securities are registered.
"Senior Indebtedness" means (i) the principal of the Senior Notes, the
Letter of Credit Obligations, 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 Notes, the Senior Note Indenture
and the Letter of Credit Agreement, 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 Notes, the trustee under the Senior Note Indenture or the
holders of the Letter of Credit Agreement Obligations are entitled to
reimbursement under the terms of the Senior Notes, the Senior Note Indenture or
the Letter of Credit Agreement), (ii) any refundings, renewals or extensions of
any Indebtedness or other obligation described in clause (i) above, provided
that the principal amount of such Indebtedness shall not exceed the principal
amount of Indebtedness, and any unfunded or unused commitment to extend credit
(including commitments to issue letters of credit), so refunded, renewed or
extended and (iii) all expenses, indemnifications and attorneys' fees for which
the Issuer is now or hereafter becomes liable to pay to the trustee of the
Senior Note Indenture or any holder of Senior Notes or Letter of Credit
Agreement Obligations.
"Senior Notes" means (i) the Issuer's 12% Senior Secured Notes (Other)
Due 2005 issued and outstanding as of the Closing pursuant to the Senior Note
Indenture and any such Notes
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<PAGE> 18
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other such Notes pursuant to such Indenture, (ii) the
Issuer's 12% Senior Secured Notes (Sunbelt IDB) Due 2005 issued and outstanding
as of the Closing pursuant to the Senior Note Indenture, and any such Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other such Notes pursuant to such Indenture and (iii) any
notes issued pursuant to the Senior Note Indenture ("Exchange Notes") in
exchange for other notes issued pursuant to the Senior Note Indenture, provided
that the principal amount of the Exchange Notes shall not exceed the principal
amount of the notes exchanged therefor, and any Exchange Notes authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other such Exchange Notes pursuant to such Indenture.
"Senior Note Indenture" means the Amended and Restated Collateralized
Note Indenture of December 12, 1996 between the Issuer and the trustee named
therein, pursuant to which the Senior Notes are issued, as such indenture has
been or may from time to time be amended, renewed, supplemented, restated or
otherwise modified.
"shares" when used with reference to Common Stock or capital stock of
the Issuer, means, so long as Huntway remains the Issuer, units; and
"certificate" when used with respect to Common Stock may include, so long as
Huntway remains the Issuer, a depositary receipt with respect to such Common
Stock.
"Significant Subsidiary" has the meaning given to such term in Rule
1-02 of Regulation S-X of the SEC.
"Subsidiary" means, with respect to any person, (i) a corporation a
majority of whose stock with voting power, under ordinary circumstances, to
elect directors is at the time, directly or indirectly, owned by such person,
by one or more Subsidiaries of such person or by such person and one or more
Subsidiaries thereof or (ii) any other person (other than a corporation) in
which such person, one or more Subsidiaries thereof or such person and one or
more Subsidiaries thereof, directly or indirectly, at the date of determination
thereof has at least majority ownership interest and the power to direct the
policies, management and affairs thereof. Unrestricted Subsidiaries shall not
be included in the definition of Subsidiaries for any purposes of this
Indenture (except, as the context may otherwise require, for purposes of the
definition of "Unrestricted Subsidiary").
"Sunbelt" means Sunbelt Refining Company, L.P., a Delaware limited
partnership, the sole general partner of which is the Issuer.
"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 IDB Letter of Credit" means that certain Irrevocable Letter
of Credit No. S04377 dated October 5, 1988 in the original stated amount of
$9,510,411 issued by Bankers Trust Company
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<PAGE> 19
to the trustee under that certain Indenture of Trust, dated August 1, 1988,
pursuant to which the Sunbelt Bonds were issued.
"TIA" means, until this Indenture is qualified under such Act, the
Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on
the date of this Indenture, and means thereafter such Act as in effect on the
date on which this Indenture is so qualified.
The "Trading Condition" is satisfied if the Quoted Price exceeds $2.50
for a period of ten consecutive trading days during which period trading volume
is at least 200,000 shares of Common Stock in the aggregate (as such numbers
are equitably adjusted for Common Stock splits, Common Stock combinations and
Common Stock dividends paid in Common Stock, subsequent to the date of this
Indenture).
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"United States Government Securities" means securities issued directly
and fully guaranteed or insured by the United States of America or any agent or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof).
"Unrestricted Subsidiary" means (1) any Subsidiary of the Issuer (a)
which at the time of determination shall be an Unrestricted Subsidiary (as
designated by the Board of Directors as provided below), and (b) all the
Indebtedness of which shall be without recourse to the Issuer and its
Subsidiaries other than its Unrestricted Subsidiaries and their respective
assets, and shall not be guaranteed by any such person, and (2) any Subsidiary
of an Unrestricted Subsidiary; provided, that notwithstanding clause (1)(b)
above, the Issuer or a Subsidiary of the Issuer may guarantee, endorse, agree
to provide funds for the payment or maintenance of, or otherwise become
directly or indirectly liable with respect to, Indebtedness of an Unrestricted
Subsidiary but only to the extent that the Issuer or such Subsidiary could make
an Investment in such Unrestricted Subsidiary pursuant to Section 4.07 hereof
and any such guarantee, endorsement or agreement shall be deemed an incurrence
of Indebtedness by the Issuer for purposes of Section 4.09 hereof. The Board
of Directors may designate any newly acquired or newly formed Subsidiary to be
an Unrestricted Subsidiary unless such Subsidiary owns any capital stock of, or
owns or holds any Lien on any property of, the Issuer or any Subsidiary of the
Issuer which is not an Unrestricted Subsidiary. Any such designation by the
Board of Directors shall be evidenced to the Trustee by filing with the Trustee
a certified copy of the resolution of the Board of Directors giving effect to
such designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the then
outstanding principal amount of such Indebtedness into (ii) the total of the
product obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
-13-
<PAGE> 20
"Wholly Owned Subsidiary" means for any person, any Subsidiary of such
person all of the outstanding capital stock (other than directors' qualifying
shares) of which is directly or indirectly owned by such person; and shall also
include Sunbelt. Unrestricted Subsidiaries shall not be included in the
definition of Wholly Owned Subsidiaries for any purposes of this Indenture
(except, as the context may otherwise require, for purposes of the definition
of "Unrestricted Subsidiary").
Section 1.02 Other Definitions.
<TABLE>
<CAPTION>
DEFINED IN
TERM SECTION
------------------------------------------ -----------
<S> <C>
"Affiliate Transaction" 4.10
"Average Quoted Price" 11.01
"Bankruptcy Law" 6.01
"Change of Control Date" 4.14
"Change of Control Offer" 4.14
"Change of Control Offer Date" 4.14
"Change of Control Payment Date" 4.14
"Claim" 12.02
"Conversion Agent" 2.03
"Conversion Date" 11.02
"Conversion Rate" 11.01
"Covenant Defeasance" 8.03
"Custodian" 6.01
"Event of Default" 6.01
"Exchange and Purchase Agreement" 13.16
"Ex-Dividend Time" 11.01
"Extraordinary Cash Dividend" 11.08
"incur" 4.09
"Legal Defeasance" 8.02
"Legal Holiday" 13.07
"Notice of Default" 6.01
"outstanding" 8.02/8.03
"Paying Agent" 2.03
"Payment Blockage Notice" 12.04
"Payment Blockage Period" 12.04
"Payment in full" 12.02
"Permitted Liens" 4.08
"Quoted Price" 11.01
"Refinanced Indebtedness" 4.09
"Refinancing Indebtedness" 4.09
"Registrar" 2.03
"Representative" 12.02
"Restricted Payments" 4.07
</TABLE>
-14-
<PAGE> 21
<TABLE>
<CAPTION>
DEFINED IN
TERM SECTION
------------------------------------------ -----------
<S> <C>
"Rights" 11.18
</TABLE>
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Securities means the Issuer or any successor obligor
upon the Securities.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular; and
(5) provisions apply to successive events and transactions.
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<PAGE> 22
ARTICLE 2
THE SECURITIES
Section 2.01 Form and Dating.
The Securities and the Trustee's certificate of authentication shall
be substantially in the form of Exhibit A, the terms of which are incorporated
in and made a part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rules and regulations
and agreements to which the Issuer is subject or usage. Each Security shall be
dated the date of its authentication. The Securities shall be issued initially
in denominations of $1,000 and integral multiples thereof.
Section 2.02 Execution and Authentication.
Two Officers of the Issuer shall sign the Securities for the Issuer by
manual or facsimile signature.
If an Officer of the Issuer whose signature is on a Security no longer
holds that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature of the Trustee shall be conclusive
evidence that the Security has been authenticated under this Indenture. The
form of Trustee's certificate of authentication to be borne by the Securities
shall be substantially as set forth in Exhibit A hereto.
The Trustee shall, upon a written order of the Issuer signed by two
Officers of the Issuer, authenticate Securities for original issue up to an
aggregate principal amount stated in paragraph 4 of the Securities. The
aggregate principal amount of Securities outstanding at any time may not exceed
the amount set forth herein except as provided in Section 2.07.
The Trustee may appoint an authenticating agent acceptable to the
Issuer to authenticate Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Issuer or an Affiliate thereof.
Section 2.03 Registrar, Paying Agent and Conversion Agent.
The Issuer shall maintain (i) an office or agency where Securities may
be presented for registration of transfer or for exchange ("Registrar"), (ii)
an office or agency where Securities may be presented for payment ("Paying
Agent") and (iii) an office or agency where Securities may be presented for
conversion ("Conversion Agent"). The Registrar shall keep a register of the
Securities and of their transfer and exchange. The Issuer may appoint one or
more co-registrars, one or more additional paying agents and one or more
additional conversion agents. The term "Paying Agent" includes any additional
paying agent and the term "Conversion Agent" includes any additional
-16-
<PAGE> 23
conversion agent. The Issuer may change any Paying Agent, Registrar,
Conversion Agent or co-registrar without notice to any Securityholder. The
Issuer shall notify the Trustee of the name and address of any Agent not a
party to this Indenture. The Issuer or any of its Subsidiaries may act as
Paying Agent, Registrar, Conversion Agent or co-registrar. The Issuer shall
enter into an appropriate agency agreement with any Agent not a party to this
Indenture, which shall incorporate the provisions of the TIA. The agreement
shall implement the provisions of this Indenture that relate to such Agent.
The Issuer shall notify the Trustee of the name and address of any such Agent.
If the Issuer fails to maintain or appoint a Registrar, Conversion Agent or
Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such, and shall be entitled to appropriate compensation in accordance with
Section 7.07 hereof.
The Issuer initially appoints the Trustee as Registrar, Conversion
Agent and agent for service of notices and demands in connection with the
Securities.
Section 2.04 Paying Agent to Hold Money in Trust.
The Issuer shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Securityholders or the Trustee all money held by the Paying Agent for the
payment of principal or interest on the Securities, and will notify the Trustee
of any default by the Issuer in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. The Issuer at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Issuer) shall have no further liability for the
money delivered to the Trustee. If the Issuer or any of its Subsidiaries acts
as Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Securityholders all money held by it as Paying Agent.
Section 2.05 Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders and shall otherwise comply with TIA Section 312(a). If the
Trustee is not the Registrar, the Issuer shall furnish to the Trustee at least
seven Business Days before each interest payment date and at such other times
as the Trustee may request in writing a list in such form and as of such date
as the Trustee may reasonably require of the names and addresses of
Securityholders, including the aggregate principal amount of Securities held by
each such Securityholder and the Issuer shall otherwise comply with TIA Section
312(a).
Section 2.06 Transfer and Exchange.
When Securities are presented to the Registrar or a co-registrar with
a request to register, transfer or exchange them for an equal principal amount
of Securities of other denominations, the Registrar shall register the transfer
or make the exchange if its requirements for such transactions are met;
provided, however, that any Security presented or surrendered for registration
of transfer or exchange shall be duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar and the Trustee
duly executed by the Securityholder thereof or by his
-17-
<PAGE> 24
attorney duly authorized in writing. To permit registrations of transfer and
exchanges, the Issuer shall issue and the Trustee shall authenticate Securities
at the Registrar's request, subject to such rules as the Trustee may reasonably
require.
Neither the Issuer nor the Registrar shall be required (i) to issue,
register the transfer of or exchange Securities during a period beginning at
the opening of business on a Business Day 15 days before the day of any
selection of Securities for redemption under Section 3.02 and ending at the
close of business on the day of selection, (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part or (iii) to
register the transfer or exchange of a Security between a record date and the
next succeeding interest payment date.
No service charge shall be made to any Securityholder for any
registration of transfer or exchange (except as otherwise expressly permitted
herein), but the Issuer may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than such transfer tax or similar governmental charge payable upon
exchanges pursuant to Sections 2.10, 3.06 or 9.05 hereof, which shall be paid
by the Issuer).
Prior to due presentment for registration of transfer of any Security,
the Trustee, any Agent and the Issuer may deem and treat the person in whose
name any Security is registered as the absolute owner of such Security for the
purpose of receiving payment of principal of and interest on such Security and
for all other purposes whatsoever, whether or not such Security is overdue, and
neither the Trustee, any Agent nor the Issuer shall be affected by notice to
the contrary.
Section 2.07 Replacement Securities.
If any mutilated Security is surrendered to the Trustee, or the Issuer
and the Trustee receive evidence to their satisfaction of the destruction, loss
or theft of any Security, the Issuer shall issue and the Trustee, upon the
written order of the Issuer signed by two Officers of the Issuer, shall
authenticate a replacement Security if the Trustee's customary requirements for
replacements of Securities are met. If required by the Trustee or the Issuer,
an indemnity bond must be supplied by the Securityholder that is sufficient in
the judgment of the Trustee and the Issuer to protect the Issuer, the Trustee,
any Agent or any authenticating agent from any loss which any of them may
suffer if a Security is replaced. The Issuer and the Trustee may charge the
Securityholder for their respective expenses in replacing a Security.
Every replacement Security is an additional obligation of the Issuer.
Section 2.08 Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered
to it for cancellation and those described in this Section as not outstanding.
-18-
<PAGE> 25
If a Security is replaced pursuant to Section 2.07 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
Subject to Section 2.09 hereof, a Security does not cease to be
outstanding because the Issuer holds the Security.
Section 2.09 Treasury Securities.
In determining whether the Securityholders of the required principal
amount of Securities have concurred in any direction, waiver or consent,
Securities owned by the Issuer or any Subsidiary, Unrestricted Subsidiary or
Affiliate of the Issuer shall be considered as though not outstanding, except
that for purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities which a
Responsible Officer knows to be so owned shall be so considered.
Section 2.10 Temporary Securities.
Until definitive Securities are ready for delivery, the Issuer may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Issuer and the Trustee consider appropriate for
temporary Securities.
Without unreasonable delay, the Issuer shall prepare and the Trustee,
upon receipt of the written order of the Issuer signed by two Officers of the
Issuer, shall authenticate definitive Securities in exchange for temporary
Securities. Until such exchange, temporary Securities shall be entitled to the
same rights, benefits and privileges as definitive Securities.
Section 2.11 Cancellation.
The Issuer at any time may deliver Securities to the Trustee for
cancellation. The Registrar, Paying Agent and Conversion Agent shall forward
to the Trustee any Securities surrendered to them for registration of transfer,
conversion, exchange or payment, as the case may be. The Trustee shall cancel
all Securities surrendered for registration of transfer, conversion, exchange,
payment, replacement or cancellation and shall destroy canceled Securities
(subject to the record retention requirement of the Exchange Act) unless the
Issuer directs such surrendered Securities to be returned to it. The Issuer
may not issue new Securities to replace Securities that have been redeemed or
paid, that any holder has converted pursuant to Article 11 or that have been
delivered to the Trustee for cancellation. All canceled Securities held by the
Trustee shall be destroyed and certification of their destruction delivered to
the Issuer unless by a written order, signed by one Officer of the Issuer, the
Issuer shall direct that such canceled Securities be returned to it.
-19-
<PAGE> 26
Section 2.12 Defaulted Interest.
If the Issuer defaults in a payment of interest on the Securities, the
Issuer shall pay the defaulted interest in any lawful manner plus, to the
extent lawful, interest payable on the defaulted interest, to the persons who
are Securityholders on a subsequent special record date, which date shall be at
the earliest practicable date but in all events at least five Business Days
prior to the payment date, in each case at the rate provided in the Securities
and in Section 4.01 hereof. The Issuer shall fix or cause to be fixed each
such special record date and payment date. At least 15 days before the special
record date, the Issuer (or the Trustee, in the name of and at the expense of
the Issuer) shall mail to Securityholders a notice that states the special
record date, the related payment date and the amount of interest to be paid on
such special record date.
ARTICLE 3
REDEMPTION
Section 3.01 Notices to Trustee.
If the Issuer elects to redeem Securities pursuant to the optional
redemption provisions of Sections 3.08 and 3.09 hereof, it shall furnish to the
Trustee, at least 45 days but not more than 60 days before a redemption date,
an Officers' Certificate setting forth the Section of this Indenture pursuant
to which the redemption shall occur, the redemption date, the principal amount
of Securities to be redeemed and the redemption price (or, in the event of a
redemption pursuant to Section 3.09, the Conversion Rate).
Section 3.02 Selection of Securities to Be Redeemed.
If less than all of the Securities are to be redeemed, the Trustee
shall select the Securities to be redeemed among the Securityholders pro rata,
by lot or in accordance with a method which the Trustee considers to be fair
and appropriate (and in such manner as complies with applicable legal and stock
exchange requirements, if any). In the event of partial redemption, the
particular Securities to be redeemed shall be selected, unless otherwise
provided herein, not less than 30 nor more than 60 days prior to the redemption
date by the Trustee from the outstanding Securities not previously called for
redemption.
The Trustee shall promptly notify the Issuer in writing of the
Securities selected for redemption and, in the case of any Security selected
for partial redemption, the principal amount thereof to be redeemed.
Securities and portions of them selected shall be in amounts of $1,000 or whole
multiples of $1,000; except that if all of the Securities of a Securityholder
are to be redeemed. the entire outstanding amount of Securities held by such
Securityholder, even if not a multiple of $1,000, shall be redeemed. Except as
provided in the preceding sentence, provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called
for redemption.
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<PAGE> 27
If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed
(so far as may be) to be the portion selected for redemption. Securities which
have been converted during a selection of Securities to be redeemed may be
treated by the Trustee as outstanding for the purposes of such selection.
Section 3.03 Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date,
the Issuer shall mail a notice of redemption to each Securityholder whose
Securities are to be redeemed at its registered address.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date:
(2) the redemption price;
(3) the Conversion Rate;
(4) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the redemption
date, upon surrender of such Security, a new Security or Securities in
principal amount equal to the unredeemed portion will be issued;
(5) that Securities called for redemption may be converted at any
time before the close of business on the redemption date;
(6) the name and address of the Paying Agent and the Conversion
Agent;
(7) that Securities called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(8) that Securityholders who want to convert Securities must satisfy
the requirements set forth in paragraph 8 of the Securities;
(9) that, unless the Issuer defaults in making such redemption
payment, interest on Securities or portions of Securities called for redemption
ceases to accrue on and after the redemption date;
(10) the paragraph of the Securities and/or Section of this
Indenture pursuant to which the Securities called for redemption are being
redeemed; and
(11) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the Securities.
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<PAGE> 28
At the Issuer's request, the Trustee shall give the notice of
redemption in the name of the Issuer and at the Issuer's expense; provided,
however, that the Issuer shall deliver to the Trustee, at least 45 days prior
to the redemption date, an Officers' Certificate requesting that the Trustee
give such notice and setting forth the information to be stated in such notice
as provided in the preceding paragraph.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Securities called for redemption (i) pursuant to Section 3.08 become
due and payable on the redemption date at the redemption price except for
Securities which are converted theretofore in accordance with the terms of this
Indenture and (ii) pursuant to Section 3.09 become due and payable on the
redemption date for shares of Common Stock (and cash in lieu of fractional
shares) at the Conversion Rate, except for Securities which are converted
theretofore in accordance with the terms of this Indenture.
Section 3.05 Deposit of Redemption Price.
(a) In the event of a redemption pursuant to Section 3.08, on or
before the date on which the notice of redemption is mailed, the Issuer shall
deposit with the Trustee (to the extent not already held by the Trustee) or
with the Paying Agent money in immediately available funds sufficient to pay
the redemption price of and accrued interest on all Securities to be redeemed
on that date. The Trustee or the Paying Agent shall return to the Issuer any
money deposited with the Trustee or the Paying Agent by the Issuer in excess of
the amount necessary to pay the redemption price of, and accrued interest on,
all Securities to be redeemed, including money not required for such purpose
because of conversion of Securities.
Interest on the Securities to be redeemed will cease to accrue on the
applicable redemption date, whether or not such Securities are presented for
payment, if the Issuer deposits with the Paying Agent money in available funds
sufficient to pay the redemption price of and accrued interest on such
Securities. If any Security called for redemption shall not be so paid upon
surrender for redemption because of the failure of the Issuer to comply with
the preceding paragraph, interest will be paid on the unpaid principal thereof,
from the redemption date until such principal is paid, and to the extent lawful
on any interest not paid on such unpaid principal, in each case at the rate
provided in the Securities and in Section 4.01 hereof.
(b) In the event of a redemption pursuant to Section 3.09, on or
before the redemption date, the Issuer shall deposit with the Conversion Agent
certificates registered in the names of, and for the respective numbers of
shares to be issued to, the Securityholders in whose names the Securities to be
redeemed are registered and cash to be paid in lieu of fractional shares upon
redemption of such Securities. The Conversion Agent shall return to the Issuer
any certificates and/or money deposited with the Conversion Agent in excess of
the certificates and/or money necessary to effect the redemption of the
Securities to be redeemed because of any earlier conversion of such Securities.
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<PAGE> 29
Interest on the Securities to be redeemed will cease to accrue on the
applicable redemption date, whether or not such Securities are presented for
redemption, if the Issuer makes the aforementioned deposit of certificates and
cash. If any Security called for redemption is not redeemed because of the
failure of the Issuer to comply with the preceding paragraph, interest will be
paid on the unpaid principal thereof, from the redemption date until such
redemption is consummated, and to the extent lawful on any interest not paid on
such unpaid principal, in each case at the rate provided in the Securities and
in Section 4.01 hereof.
Until the delivery by the Conversion Agent of the certificate(s)
issuable in redemption of particular Securities, the shares represented by such
shall not be deemed to be issued and outstanding for any purpose (including
without limitation for the purpose of entitlement to dividends payable to
holders as of record dates prior to such delivery).
Section 3.06 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Issuer
shall issue and the Trustee shall authenticate for the Securityholder at the
expense of the Issuer a new Security equal in principal amount to the
unredeemed portion of the Security surrendered.
Section 3.07 Conversion Arrangement on Call for Redemption.
In connection with any redemption of Securities for cash, the Issuer
may arrange for the purchase and conversion of any Securities called for
redemption by an agreement with one or more investment bankers or other
purchasers to purchase such Securities by paying to the Trustee in trust for
the Securityholders, on or before the close of business on the first Business
Day following the redemption date, an amount not less than the redemption
price, together with interest, if any, accrued to the redemption date, of such
Securities. Notwithstanding anything to the contrary contained in this Article
3, the obligation of the Issuer to pay the redemption price of such Securities,
including all accrued interest, if any, shall be deemed to be satisfied and
discharged to the extent such amount is so paid by such purchasers. If such an
agreement is entered into, any Securities not duly surrendered for conversion
by the Securityholders thereof may, at the option of the Issuer, be deemed, to
the fullest extent permitted by law, acquired by such purchasers from such
Securityholders and (notwithstanding anything to the contrary contained in
Article 11) surrendered by such purchasers for conversion, all as of
immediately prior to the close of business on the redemption date, subject to
payment of the above amount as aforesaid. The Trustee shall hold and pay to
the Securityholders whose Securities are selected for redemption any such
amount paid to it in the same manner as it would moneys deposited with it by
the Issuer for the redemption of Securities. Without the Trustee's prior
written consent, no arrangement between the Issuer and such purchasers for the
purchase and conversion of any Securities shall increase or otherwise affect
any of the powers, duties, responsibilities or obligations of the Trustee as
set forth in this Indenture, and the Issuer agrees to indemnify the Trustee
from, and hold it harmless against, any loss, liability or expense arising out
of or in connection with any such arrangement for the purchase and conversion
of any Securities between the Issuer and such purchasers, including the costs
and expenses incurred by the Trustee in the defense of any claim or liability
arising out of or in connection with the
-23-
<PAGE> 30
exercise or performance of any of its powers, duties, responsibilities or
obligations under this Indenture.
Section 3.08 Optional Redemption for Cash.
(a) At any time or from time to time after October 15,
2000, in the event the Trading Condition is satisfied, the Issuer may (provided
that the Issuer furnishes to the Trustee the Officers' Certificate provided for
in Section 3.01 within five days thereafter) redeem all or any of the
Securities at the redemption prices (expressed as percentages of the principal
amount) set forth below, plus accrued interest to the redemption date, if
redeemed during the 12-month period beginning October 15 of the years indicated
below:
<TABLE>
<CAPTION>
YEAR %
---- -------
<S> <C>
2000 . . . . . . . . . . . . . . . . 104.625
2001 . . . . . . . . . . . . . . . . 103.854
2002 . . . . . . . . . . . . . . . . 103.083
2003 . . . . . . . . . . . . . . . . 102.312
2004 . . . . . . . . . . . . . . . . 101.541
2005 . . . . . . . . . . . . . . . . 100.770
2006 and thereafter . . . . . . . . . 100.000
</TABLE>
(b) Subject to the provisions of Section 13.16, at any
time or from time to time after October 15, 2002, the Issuer may redeem all or
any of the Securities at the redemption prices (expressed as percentages of the
principal amount) set forth below, plus accrued interest to the redemption
date, if redeemed during the 12-month period beginning October 15 of the years
indicated below:
<TABLE>
<CAPTION>
YEAR %
---- -------
<S> <C>
2002 . . . . . . . . . . . . . . . . 110.000
2003 . . . . . . . . . . . . . . . . 107.500
2004 . . . . . . . . . . . . . . . . 105.000
2005 . . . . . . . . . . . . . . . . 102.500
2006 and thereafter . . . . . . . . . 100.000
</TABLE>
Section 3.09 Optional Redemption for Common Stock.
Subject to the provisions of Section 13.16, at any time or from time
to time after October 15, 2000, in the event the Trading Condition is
satisfied, the Issuer may (provided that the Issuer furnishes to the Trustee
the Officers' Certificate provided for in Section 3.01 within five days
thereafter) redeem all or any portion of the Securities in exchange for the
number of shares of Common Stock (and cash in lieu of fractional shares)
issuable upon conversion of such Securities at the Conversion Rate then in
effect for the Securities pursuant to Article 11 hereof.
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<PAGE> 31
Section 3.10 Mandatory Redemption.
Subject to the Issuer's obligation to make an offer to purchase
Securities under certain circumstances pursuant to Section 4.14 hereof, the
Issuer shall have no mandatory redemption or sinking fund obligations with
respect to the Securities.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Securities.
The Issuer shall pay the principal of, premium, if any, and interest
on the Securities on the dates and in the manner provided in the Securities.
Principal and interest shall be considered paid on the date due if the Paying
Agent holds prior to 3:00 p.m. (Paying Agent's local time) on that date money
deposited by the Issuer in immediately available funds and designated for and
sufficient to pay all principal, premium, if any, and interest then due. Such
Paying Agent shall return to the Issuer, no later than three Business Days
following the date of payment, any money (including accrued interest) that
exceeds such amount of principal of, premium, if any, and interest required to
be paid on the Securities. Notwithstanding the foregoing, in the event the
Issuer has elected to redeem Securities pursuant to Section 3.09, principal and
interest shall be considered paid as provided in Section 3.05(b).
The Issuer shall pay interest (including post-petition interest) on
overdue principal at the rate equal to 2% per annum in excess of the then
applicable interest rate on the Securities to the extent lawful; it shall pay
interest (including post-petition interest) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
Section 4.02 Maintenance of Office or Agency.
The Issuer will maintain in the Borough of Manhattan, The City of New
York, an office or agency (which may be an office of the Trustee, Registrar or
co-registrar) where Securities may be presented for payment, surrendered for
registration of transfer, exchange, redemption or conversion and where notices
and demands to or upon the Issuer in respect of the Securities and this
Indenture may be served; provided that the Issuer may be the sole Paying Agent
and may maintain such an office or agency at its corporate headquarters until
such time as the Securities become listed on the New York Stock Exchange. The
Issuer will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Issuer
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.
The Issuer may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Issuer of its obligations to maintain an office or agency in the
Borough of
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Manhattan, The City of New York, for such purposes. The Issuer will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
The Issuer hereby designates the office of the Trustee as one such
office or agency of the Issuer in accordance with Section 2.03.
Section 4.03 SEC Reports.
(a) The Issuer shall file with the Trustee, with a copy to the
Securityholders at their addresses appearing in the register of Securities
maintained by the Registrar, promptly after filing with the SEC, copies of the
annual reports and of the information, documents, and other reports (or copies
of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Issuer is required to file with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act. The Issuer shall also
comply with the provisions of TIA Section 314(a) provided that this Indenture
is qualified under the TIA.
(b) If the Issuer is required to furnish annual or quarterly
reports to such holders of its capital stock pursuant to the Exchange Act, the
Issuer shall cause any annual report to such holders and any quarterly or
other financial report furnished by it generally to such holders to be filed
with the Trustee and mailed to the Securityholders at their addresses appearing
in the register of Securities maintained by the Registrar.
(c) The Issuer shall provide the Trustee with copies of all
reports and other documents and information that the Trustee may be required to
deliver to the Securityholders under this Section 4.03 in an amount sufficient
to make such deliveries. The delivery of such reports, documents and
information shall be at the sole expense of the Issuer.
Section 4.04 Compliance Certificate.
(a) The Issuer shall deliver to the Trustee, within 120 days after
the end of each fiscal year, an Officers' Certificate stating that a review of
the activities of the Issuer and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view to
determining whether each has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his knowledge each has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions and conditions hereof or thereof (or, if a Default or Event
of Default shall have occurred, describing all such Defaults or Events of
Default of which he may have knowledge and what action each is taking or
proposes to take with respect thereto).
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03 above shall be accompanied by a
written statement of the Issuer's independent public accountants (who shall be
a firm of established national reputation reasonably satisfactory to the
Trustee) that
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in making the examination necessary for certification of such financial
statements nothing has come to their attention which would lead them to believe
that the Issuer or any of its Subsidiaries has violated any provisions of
Sections 4.01, 4.05, 4.07, 4.08, 4.09 or 4.10 hereof or of Article 5 of this
Indenture or, if any such violation has occurred, specifying the nature and
period of existence thereof, it being understood that such accountants shall
not be liable directly or indirectly, to any person for any failure to obtain
knowledge of any such violation.
(c) The Issuer will, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of (i) any Default or Event of Default or (ii) any event of default under any
other mortgage, indenture or instrument referred to in Section 6.01(5), an
Officers' Certificate specifying such Default, Event of Default or other event
of default and what action the Issuer is taking or proposes to take with
respect thereto.
Section 4.05 Taxes.
The Issuer shall, and shall cause each of its Subsidiaries (including
each Restricted Subsidiary, if any) to, pay prior to delinquency all taxes,
assessments, and governmental levies except for those taxes, assessments, and
governmental levies that would not, individually or in the aggregate, have a
material adverse effect on the business, operations, prospects, or condition,
financial or otherwise, of the Issuer and its Subsidiaries taken as a whole,
except as contested in good faith and by appropriate proceedings.
Section 4.06 Stay, Extension and Usury Laws.
The Issuer covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not, by resort to any such law, 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 has
been enacted.
Section 4.07 Limitation on Restricted Payments.
Subject to the other provisions of this Section 4.07, the Issuer will
not, and will not permit any of its Subsidiaries to, directly or indirectly:
(a) declare or pay any dividend or make any distribution on
account of the Equity Interests of the Issuer or any of its Subsidiaries (other
than dividends or distributions payable in Equity Interests (other than
Disqualified Stock) of the Issuer or such Subsidiary or dividends or
distributions payable by a Subsidiary of the Issuer to the Issuer or any Wholly
Owned Subsidiary of the Issuer);
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(b) purchase, redeem or otherwise acquire or retire for value any
Equity Interest in the Issuer or any Subsidiary or other Affiliate of the
Issuer other than (i) Permitted Investments in Subsidiaries and (ii)
acquisitions for value of options from employees or former employees of the
Issuer to purchase up to 400,000 shares of Common Stock in the aggregate (as
such number is equitably adjusted for Common Stock splits, Common Stock
combinations and Common Stock dividends paid in Common Stock, subsequent to the
date of this Indenture) pursuant to arrangements approved by the Board of
Directors so long as no Event of Default is in existence immediately prior to
or is otherwise caused by any such acquisition;
(c) purchase, redeem, defease or otherwise acquire or retire for
value, prior to any scheduled maturity, repayment or sinking fund payment, any
Indebtedness that is pari passu with or subordinated in right of payment to the
Securities, other than any such purchase, redemption defeasance or retirement
specifically permitted by the terms of this Indenture or effected (A) with
Equity Interests (other than Disqualified Stock) of the Issuer or (B) with the
substantially simultaneous application of the aggregate net cash proceeds
received by the Issuer from the sale of Equity Interests (other than
Disqualified Stock), provided that such net cash proceeds shall be excluded for
purposes of clause (C)(z) below; or
(d) make any Restricted Investments;
(all such dividends, distributions, purchases, redemptions, other acquisitions,
retirements, prepayments, defeasances, or Restricted Investments set forth in
clauses (a) through (d) above being collectively referred to as "Restricted
Payments"), unless at the time of such Restricted Payment:
(A) no Default or Event of Default shall have occurred
and be continuing or shall occur as a consequence thereof;
(B) the Issuer could incur $1.00 of additional Indebtedness
pursuant to the Pro Forma Fixed Charge Coverage Ratio test set forth
in the first paragraph of Section 4.09 hereof; and
(C) such Restricted Payment, together with the aggregate of
all other Restricted Payments made after the date of this Indenture,
shall not exceed the sum of (x) 50% of the Consolidated Net Income of
the Issuer (determined by excluding cash dividends received by the
Issuer or its Wholly Owned Subsidiaries from an Unrestricted
Subsidiary included in clause (y)) for the period (taken as one
accounting period) commencing on the first day of the first fiscal
quarter immediately following the date hereof through the end of the
Issuer's fiscal quarter ending immediately prior to the time of such
Restricted Payment (or, if Consolidated Net Income for such period is
a deficit, 100% of such deficit), (y) the amount of all cash
dividends received by the Issuer or any of its Wholly Owned
Subsidiaries from an Unrestricted Subsidiary, and the amount of cash
proceeds realized upon sale of any Unrestricted Subsidiary (less the
amount of any reserve established for purchase price adjustments, and
less the maximum amount of any indemnification or similar contingent
obligation, for the benefit of the purchaser, any of its Affiliates
or any other third party in such sale, in each case as adjusted for
any permanent reduction in any such amount on or
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after the date of such sale, other than by virtue of a payment
made to any such person) subsequent to the first day of the first
fiscal quarter immediately following the date hereof and (z) the
aggregate net cash proceeds (and non-cash proceeds when converted
into cash) received by the Issuer from the issue or sale after the
date of this Indenture of Equity Interests of the Issuer (other than
Equity Interests issued or sold to the Issuer or a Subsidiary of the
Issuer and other than Disqualified Stock) or contributions of capital
to the Issuer paid in cash.
Notwithstanding anything to the contrary contained herein, the
provisions of this Section 4.07 shall not prohibit the payment of any dividend
or distribution within 60 days after the date of declaration thereof, if at
said date of declaration such payment would have complied with the provisions
of this Indenture. Any payments made pursuant to the preceding sentence will
be deemed to be Restricted Payments for the purposes of clause (C) of the
preceding paragraph.
Not later than the date of making any Restricted Payment, the Issuer
shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
required calculations were computed, which calculations may be based upon the
Issuer's latest available consolidated internal quarterly financial statements.
Section 4.08 Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries.
The Issuer will not, and will not permit any of its Subsidiaries to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any Subsidiary to
(a) (i) pay dividends or make any other distributions to the Issuer or any of
its Subsidiaries (A) on its capital stock or (B) any other interest or
participation in, or measured by, its profits, or (ii) pay any interest on or
principal of any Indebtedness owed to the Issuer or any of its Subsidiaries,
(b) make loans or advances to the Issuer or any of its Subsidiaries or (c)
transfer any of its properties or assets to the Issuer or any of its
Subsidiaries, except for such encumbrances or restrictions existing under or by
reason of (i) this Indenture, the Securities, the Senior Note Indenture, the
Senior Notes, the Letter of Credit Agreement, the Letter of Credit Agreement
Obligations, the Junior Subordinated Debenture Indenture and the Junior
Subordinated Debentures and permitted refinancings thereof, provided, that such
Subsidiary restrictions contained in such refinancings shall be no more onerous
than the restrictions in the Indebtedness refinanced, (ii) the Collateral
Documents, (iii) applicable law, (iv) any instrument governing Acquired
Indebtedness or capital stock of a person acquired by the Issuer or any of its
Subsidiaries at the time of such acquisition (but not in connection with or
contemplation of such acquisition), which encumbrance or restriction is not
applicable to any person or the properties or assets of any person, other than
the person or the property or assets of the person so acquired or its
Subsidiaries, and permitted refinancings thereof, provided, that such
Subsidiary restrictions contained in such refinancings shall be no more onerous
than the restrictions in the Indebtedness refinanced, (v) customary
non-assignment provisions in leases and other contracts entered into in the
ordinary course of business and limitations imposed by the terms of Permitted
Liens with respect to the assets subject to such Permitted Liens, (vi) any
instrument or agreement governing Indebtedness permitted by Section 4.09
hereof, (vii) an agreement relating to the financing of the acquisition of real
or tangible personal property acquired after the date of this Indenture,
provided that such encumbrance or restriction
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relates only to the property which is acquired and in the case of any
encumbrance or restriction that constitutes a Lien, such Lien constitutes a
Permitted Lien as set forth in clause (vi) of the definition of "Permitted
Liens," and (viii) any restriction or encumbrance contained in contracts for
sale of assets permitted by this Indenture in respect of the assets being sold
pursuant to such contract.
Section 4.09 Limitation on Incurrence of Indebtedness and Issuance of
Disqualified Stock.
The Issuer will not, and will not permit any of its Subsidiaries to,
directly or indirectly, create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable with respect to ("incur"), any
Indebtedness or issue any Disqualified Stock, except that the Issuer and any of
its Wholly-Owned Subsidiaries may incur indebtedness if (i) after giving effect
thereto, the Issuer's Pro Forma Fixed Charge Coverage Ratio for the four fiscal
quarters immediately preceding the date on which such Indebtedness is incurred
shall be greater than 1.5 to 1; and (ii) no Default or Event of Default shall
have occurred and be continuing (which has not been waived) or would occur as a
consequence thereof; provided that no Guarantee may be incurred pursuant to
this paragraph unless the guaranteed Indebtedness is also incurred pursuant to
this paragraph.
The foregoing limitations will not apply to the incurrence of (a)
Indebtedness in respect of the Securities, the Senior Notes, the Letter of
Credit Agreement Obligations, the Junior Subordinated Debentures and other
Existing Indebtedness; (b) Indebtedness incurred by the Issuer or any of its
Wholly Owned Subsidiaries and issued in exchange for or the proceeds of which
are used to extend, refinance, renew, replace, substitute or refund,
Indebtedness referred to in the immediately preceding paragraph or clause (a)
above (the "Refinancing Indebtedness"); provided, however, that (i) the
principal amount of such Refinancing Indebtedness shall not exceed the
principal amount of Indebtedness, and any unfunded or unused commitment to
extend credit (including commitments to issue letters of credit), so extended,
refinanced, renewed, replaced, substituted or refunded (plus the amount of
reasonable expenses incurred thereunder) except that the principal amount of
Refinancing Indebtedness with respect to the Letter of Credit Agreement
Obligations (other than Letter of Credit Agreement Obligations relating to the
Sunbelt IDB Letter of Credit) may be increased to an amount up to $22 million
(the "Refinanced Indebtedness"), (ii) the Refinancing Indebtedness shall rank
pari passu with or junior to the Refinanced Indebtedness in right of payment
and such Refinancing Indebtedness shall not permit payment prior to the stated
maturity thereof earlier than under, or in circumstances other than under, the
Refinanced Indebtedness and (iii) the Weighted Average Life to Maturity of such
Refinancing Indebtedness shall be no shorter than the Weighted Average Life to
Maturity of the Refinanced Indebtedness; (c) Indebtedness incurred by the
Issuer or any of its Subsidiaries in connection with any Hedging Obligations,
performance bonds, letter of credit obligations and bank overdrafts incurred in
the ordinary course of business or relating to (as determined in good faith by
the Board of Directors) or required by the terms of any Indebtedness permitted
to be incurred pursuant to this Section 4.09; (d) additional Indebtedness of
the Issuer or any of its Wholly Owned Subsidiaries, capital lease obligations
and Purchase Money Obligations, in an aggregate principal amount not to exceed
$3,000,000 at any one time outstanding; (e) Indebtedness between or among the
Issuer and its Wholly Owned Subsidiaries and (f) Indebtedness incurred by the
Issuer or any of its Subsidiaries and arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations, or from
Guarantees or letters of credit, surety bonds or performance bonds securing any
Obligations of the
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Issuer or any of its Subsidiaries pursuant to such agreements, in any case
incurred in connection with the disposition of any business, assets or
Subsidiary of the Issuer, other than Guarantees of Indebtedness incurred by any
person acquiring all or any portion of such business, assets or Subsidiary of
the Issuer for the purpose of financing such acquisition, in a principal amount
not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash
Equivalents being valued at the fair market value thereof as determined by the
Board of Directors in good faith) actually received by the Issuer or any of its
Subsidiaries in connection with such dispositions.
Notwithstanding any other provision of this covenant, a Guarantee of
Indebtedness permitted by the terms of this Indenture at the time such
Indebtedness was incurred will not constitute a separate incurrence of
Indebtedness.
Section 4.10 Limitation on Transactions With Affiliates.
The Issuer will not, and will not permit any of its Subsidiaries to,
sell, lease, transfer or otherwise dispose of any of its properties or assets
to, or purchase any property or assets from, or enter into any contract,
agreement, understanding, loan, advance or Guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an "Affiliate Transaction"), except
on terms that are no less favorable to the Issuer or the relevant Subsidiary
than those that would have been obtained in a comparable transaction by the
Issuer or such Subsidiary with a person who is not an Affiliate; provided,
however, that (i) transactions between or among the Issuer and its Wholly Owned
Subsidiaries, which are not otherwise prohibited by this Indenture, (ii) any
employment agreement or loan or advance to an employee entered into by the
Issuer or its Subsidiaries in the ordinary course of business, (iii) Permitted
Investments described in clause (ii) of the definition thereof and transactions
permitted by Section 4.07 hereof, and (iv) provision of administrative or
management services by the Issuer or any of its officers to any of its
Subsidiaries and any Unrestricted Subsidiaries in the ordinary course of
business, in each case, shall not be deemed Affiliate Transactions.
In addition to the foregoing, neither the Issuer nor any of its
Subsidiaries will enter into any Affiliate Transaction or series of related
Affiliate Transactions involving consideration having a fair market value on an
unencumbered basis (as reasonably determined by the Board of Directors) of more
than $10,000,000 unless, prior to consummation of such transaction or
transactions, the Issuer has delivered to the Trustee on behalf of the
Securityholders (x) a written opinion of a nationally recognized investment
banking firm stating that such transaction is fair to the Issuer or such
Subsidiary, as the case may be, from a financial point of view or (y) with
respect to real property, fixed assets or equipment, a written appraisal from a
nationally recognized appraiser showing such property to have a value not less
than the amount of such consideration.
Notwithstanding clause (i) of the first paragraph of this Section
4.10, in the event this Indenture is qualified under the TIA, in the case of a
transaction or series of related transactions involving assets having a
potential fair market value on an unencumbered basis (as reasonably determined
by the Board of Directors) of more than $10,000,000 between or among the Issuer
or its Subsidiaries, the Issuer and any of its Subsidiaries party to such
transaction or transactions shall deliver to the Trustee either the fairness
opinion specified in the preceding paragraph or (i) an
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Officers' Certificate of officers of each entity that is a party thereto
stating that such transaction has been duly authorized by all necessary limited
partnership or corporate action, as applicable, of such entity and that, after
giving pro forma effect to such transaction, there will be no material adverse
effect on the results of operations (including interest income) of such entity
or the ability of the Issuer to satisfy its Obligations under this Indenture
and the Securities and (ii) a solvency letter of a nationally recognized
appraiser or investment banking firm with respect to the solvency of the Issuer
after giving effect to such transaction.
Section 4.11 Limitation on Liens.
Neither the Issuer nor any of its Subsidiaries shall directly or
indirectly create, incur, grant, assume or suffer to exist any Lien on any
asset now owned or hereafter acquired, or any income or profits therefrom, or
assign or convey any right to receive income therefrom, except with respect to
(i) Liens existing on the date of issuance of the Securities that are disclosed
to the initial purchasers of the Securities pursuant to the Exchange Agreement,
(ii) Permitted Liens, (iii) Liens arising in connection with the defeasance of
the Securities and the Liens granted to the Trustees or their agents (as
Trustees or their agents), pursuant to this Indenture, the Senior Note
Indenture, the Junior Subordinated Debenture Indenture and the Collateral
Documents (provided that any such Liens on Collateral shall be granted only to
the Trustees in connection with this Indenture, the Senior Note Indenture, the
Junior Subordinated Debenture Indenture, the Collateral Documents and the
Intercreditor Agreement), (iv) Liens incurred in connection with permitted
Refinancing Indebtedness but only if such Liens have the same relative priority
and extend to no property or assets other than the property or assets permitted
to be subject to the Liens securing the Refinanced Indebtedness, (v) Liens on
the assets of a person or entity acquired by the Issuer or any of its
Subsidiaries incurred prior to and not in contemplation of such acquisition,
(vi) Liens on the assets of Subsidiaries of the Issuer securing Obligations in
respect of Indebtedness permitted under this Indenture, so long as the assets
subject to such Liens do not constitute Collateral, (vii) Liens incurred to
secure the Issuer's Obligations under this Indenture and the Securities and
(viii) Liens under the Collateral Documents and the Intercreditor Agreement.
Section 4.12 Existence.
Subject to Article 5 hereof, the Issuer will do or cause to be done
all things necessary to preserve and keep in full force and effect (a) its
limited partnership or corporate existence and the limited partnership,
corporate or other existence of each of its Subsidiaries, in accordance with
their respective organizational documents (as the same may be amended from time
to time) and (b) their (and their Subsidiaries') rights (charter and
statutory), licenses and franchises; provided, however, that the Issuer shall
not be required to preserve any such right, license or franchise, or the
limited partnership, corporate or other existence of any Subsidiary, if the
Board of Directors of the Issuer shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Issuer and its
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any
material respect to the Securityholders.
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Section 4.13 Redesignation of Unrestricted Subsidiary.
Any Unrestricted Subsidiary may be redesignated by the Issuer as a
Subsidiary that is not an Unrestricted Subsidiary, provided that at the time of
such designation, after giving pro forma effect to such designation as if it
occurred at the beginning of the applicable four-quarter period, the Issuer
could incur $1.00 of additional Indebtedness pursuant to the Pro Forma Fixed
Charge Coverage Ratio test set forth in the first paragraph of Section 4.09
hereof.
Section 4.14 Change of Control.
In the event of a Change of Control (the time of such Change of
Control being referred to as the "Change of Control Date"), the Issuer shall
notify the Trustee in writing of such occurrence not more than 20 Business Days
after the Change of Control Date and shall make an offer (the "Change of
Control Offer") not more than 30 Business Days after the Change of Control Date
(the "Change of Control Offer Date") to purchase all Securities then
outstanding at a purchase price equal to 101% of the principal amount thereof
plus accrued and unpaid interest to the date of payment; provided that the
Issuer shall not make the Change of Control Offer unless, prior to the mailing
of the notice referred to below, the Issuer either (i) shall have repaid in
full all Senior Indebtedness and terminated all commitments to extend credit
(including any commitments to issue or renew letters of credit) under any
agreement evidencing any Senior Indebtedness, (ii) shall have obtained the
requisite consents under each agreement evidencing any Senior Indebtedness to
permit the Change of Control Offer or (iii) shall have effected any combination
of such repayments and consents.
Notice of a Change of Control Offer shall be mailed by the Issuer to
the Securityholders at their last registered addresses with a copy to the
Trustee and the Paying Agent. The Change of Control Offer shall remain open
from the time of mailing until the fifth Business Day preceding the Change of
Control Payment Date. The notice, which shall govern the terms of the Change
of Control Offer, shall state:
(1) that the Change of Control Offer is being made pursuant to
this Section 4.14 and that all Securities tendered will be accepted for
payment;
(2) the purchase price and the purchase date, which shall be no
earlier than 30 days nor later than 40 days from the date such notice is mailed
(the "Change of Control Payment Date");
(3) that any Securities not tendered will continue to accrue
interest;
(4) that, unless the Issuer defaults in payment of the Change of
Control Payment, any Securities accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of Control
Payment Date;
(5) that Securityholders electing to have Securities purchased
pursuant to a Change of Control Offer will be required to surrender their
Securities, with the form entitled "Option of Securityholder to Elect Purchase"
on the reverse of the Security completed, to the Paying Agent at
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the address specified in the notice prior to the close of business on the third
Business Day preceding the Change of Control Payment Date;
(6) that Securityholders will be entitled to withdraw their
election if the Paying Agent receives, not later than the close of business on
the second Business Day preceding the Change of Control Payment Date, a
telegram, telex, facsimile transmission or letter setting forth the name of
the Securityholder, the principal amount of Securities the Securityholder
delivered for purchase and a statement that such Securityholder is withdrawing
his election to have such Securities purchased;
(7) that Securityholders whose Securities are purchased only in
part will be issued Securities representing the unpurchased portion of the
Securities surrendered, which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof;
(8) the instructions that Securityholders must follow in order to
tender their Securities; and
(9) the circumstances and relevant facts regarding such Change of
Control (including but not limited to information with respect to pro forma
historical financial information after giving effect to such Change of Control,
information to the extent available regarding the person acquiring control and
such person 's business plans with respect to the Issuer).
The Change of Control Offer shall be made in compliance with all
applicable laws, including without limitation, Regulation 14E of the Exchange
Act and the rules thereunder and all other applicable federal and state
securities laws. The right of the Securityholders to require the Issuer to
repurchase the Securities upon a Change of Control may not be waived by the
Issuer or the Trustee, except with the consent of the holders of a majority in
aggregate principal amount of the Securities at the time outstanding.
On the Change of Control Payment Date, the Issuer shall (i) accept for
payment Securities or portions thereof tendered pursuant to the Change of
Control Offer, (ii) deposit with the Paying Agent money sufficient to pay the
purchase price of all Securities or portions thereof so tendered and (iii)
deliver to the Trustee Securities so accepted together with an Officers'
Certificate stating the Securities or portions thereof tendered to the Issuer.
The Paying Agent shall promptly mail to the Securityholders so accepted payment
in an amount equal to the purchase price, and the Trustee shall promptly
authenticate and mail to such Securityholders a new Security equal in principal
amount to any unpurchased portion of the Security surrendered.
Section 4.15 Maintenance of Properties.
The Issuer shall, and shall cause each of its Subsidiaries to,
maintain their properties and assets in normal working order and condition as
on the date of this Indenture (reasonable wear and tear excepted) and make all
necessary repairs, renewals, replacements, additions, betterments and
improvements thereto, as shall be reasonably necessary for the proper conduct
of the business of the Issuer and its Subsidiaries taken as a whole; provided
that nothing herein shall prevent the Issuer or any of its Subsidiaries from
discontinuing any maintenance of any such properties if such
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discontinuance is desirable in the conduct of the business of the Issuer and
its Subsidiaries, taken as a whole.
Section 4.16 Compliance with Laws.
The Issuer 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 Issuer and its Subsidiaries taken as a whole.
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation or Sale of Assets.
The Issuer will not consolidate or merge with or into any person
(whether or not the Issuer is the surviving person), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions to another
corporation, person or entity, unless:
(i) the Issuer is the surviving person or the entity or
the person formed by or surviving any such consolidation or merger (if other
than the Issuer) or to which such sale, assignment, transfer, lease, conveyance
or other disposition shall have been made is organized and existing under the
laws of the United States, any state thereof or the District of Columbia;
(ii) the person formed by or surviving any such
consolidation or merger (if other than the Issuer) or the person to which such
sale, assignment, transfer, lease, conveyance or other disposition will have
been made (if other than the Issuer) assumes, pursuant to a supplemental
indenture in a form reasonably satisfactory to the Trustee, all the obligations
of the Issuer under the Securities and this Indenture, including, without
limitation, the obligations of the Issuer under Article 11 hereof;
(iii) immediately, after giving effect to such transaction,
no Default or Event of Default exists; and
(iv) the Issuer or any person formed by or surviving any
such consolidation or merger, or to which such sale, assignment, transfer,
lease, conveyance or other disposition will have been made will have
Consolidated Net Worth (immediately after giving effect to such transaction)
equal to or greater than the Consolidated Net Worth of the Issuer immediately
preceding the transaction.
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The parties to any transaction consummated in accordance with this
Section 5.01 shall remain subject to the requirements of this Indenture with
respect to Change of Control Offers required pursuant to Section 4.14 hereof to
the extent such transaction results in a Change of Control.
The Issuer shall deliver to the Trustee prior to the consummation of
the proposed transaction an Officers' Certificate to the foregoing effect and
an Opinion of Counsel, covering clauses (i), (ii) and (iii) (in the case of
clause (iii), to such counsel's knowledge), stating that the proposed
transaction and such supplemental indenture comply with this Indenture. The
Trustee shall be entitled to conclusively rely upon such Officers' Certificate
and Opinion of Counsel.
Notwithstanding the foregoing provisions of this Section 5.01, the
conditions set forth in clauses (i), (iii) and (iv) shall not apply to, and
references to such clauses in the preceding paragraph shall be inapplicable to,
the Anticipated Merger.
Section 5.02 Successor Substituted.
Upon any consolidation or merger of the Issuer or any sale, lease,
conveyance or other disposition of all or substantially all of the assets of
the Issuer in accordance with Section 5.01 hereof, the successor formed by such
consolidation or into or with which the Issuer is merged or to which such sale,
lease, conveyance or other disposition is made, as the case may be, shall
succeed to, and be substituted for, and may exercise every right and power of,
the Issuer under this Indenture and the Securities with the same effect as if
such successor person had been named as the Issuer herein or therein.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
An "Event of Default" occurs if:
(1) the Issuer defaults in the payment of interest on any Security
(whether or not prohibited by Article 12 of this Indenture) when the same
becomes due and payable and the Default continues for a period of 30 days;
(2) the Issuer defaults in the payment of the principal of any
Security (whether or not prohibited by Article 12 of this Indenture) when the
same becomes due and payable at maturity, upon acceleration, redemption or
otherwise, including without limitation payments due upon a Change of Control;
(3) the Issuer fails to comply (including, without limitation, by
permitting any Subsidiary to fail to comply to the extent required by this
Indenture) with Sections 4.07, 4.09 and 4.14 hereof, or fails within 29
Business Days after any Change of Control Date to effect the repayments and/or
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obtain the consents contemplated in the first paragraph of Section 4.14, and
written notice specifying such default shall have been given to the Issuer by
the Trustee or to the Issuer by any Securityholder and such default shall not
have been cured or waived within 10 days after the date of such notice;
(4) the Issuer fails to comply (including, without limitation, by
permitting any Subsidiary to fail to comply to the extent required by this
Indenture) with any of its other agreements or covenants in, or provisions of,
the Securities or this Indenture, or defaults in performance in any material
respect of its agreements contained in any Collateral Document or the
Intercreditor Agreement, for a period that continues for 30 days after receipt
of a written notice from the Trustee or from holders of at least 25% of the
aggregate principal amount of the Securities then outstanding, specifying such
default and requiring that it be remedied;
(5) a default occurs under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed (other than the Securities and the
Collateral Documents) by the Issuer or any of its Subsidiaries, or the payment
of which is guaranteed by the Issuer or any of its Subsidiaries, whether such
Indebtedness now exists or is created hereafter, which default (a) in the case
of a failure to make a payment on any such Indebtedness, (w) shall permit the
acceleration of the maturity of such Indebtedness, (x) shall occur with respect
to Indebtedness in a principal amount of at least $2,000,000, (y) in the case
of any default with respect to any interest payment Obligation on Indebtedness
shall occur with respect to interest payment Obligations in an aggregate amount
of at least $500,000, and (z) which payment default shall not have been cured
within 30 days after the expiration of any grace period as provided in such
Indebtedness on the date of such default, or (b) in the case of any default
other than a payment default referred to in clause (a), has resulted in the
acceleration of the maturity of such Indebtedness prior to its express maturity
and the principal amount of such Indebtedness either (x) is at least $2,000,000
or (y), together with the principal amount of any other such Indebtedness, the
maturity of which has been so accelerated or which has not been paid at
maturity, aggregates $2,000,000 or more;
(6) a final judgment or final judgments for the payment of money
are entered by a court or courts of competent jurisdiction against the Issuer
or any of its Subsidiaries and such judgment or judgments remain undischarged
or unstayed for a period of 60 consecutive days after their entry, provided
that the aggregate of all such judgments exceeds $2,000,000;
(7) The Issuer or any of its Significant Subsidiaries pursuant to
or within the meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against
it in an involuntary case,
(c) consents to the appointment of a custodian of it or
for all or substantially all of its property,
(d) makes a general assignment for the benefit of its creditors,
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(e) admits in writing its inability to pay debts as the same
become due;
(8) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(a) is for relief against the Issuer or any of its
Significant Subsidiaries in an involuntary case,
(b) appoints a Custodian of the Issuer or any of its
Significant Subsidiaries or for all or substantially all of their property,
(c) orders the winding up or liquidation of the Issuer or
any of its Significant Subsidiaries, and the order or decree remains unstayed
and in effect for 60 days;
(9) any representation or warranty of the Issuer contained in a
Collateral Document with respect to any material portion of the Collateral
shall have been untrue in any material respect when made, and the same is not
able to be cured, or is not cured or waived within 30 days after receipt of
written notice from the Trustee or holders of at least 25% of the aggregate
principal amount of the Securities then outstanding; or
(10) any Collateral Document with respect to Collateral having a
fair market value (as determined in good faith by the Board of Directors and
certified to the Trustee in an Officers' Certificate) in excess of $3,000,000
shall be held in any judicial proceeding to be unenforceable or invalid or
otherwise ceases to be in effect (except as otherwise permitted by this
Indenture, the Collateral Documents or the Intercreditor Agreement) or the
Issuer shall deny or disaffirm its obligations under any Collateral Document,
the Intercreditor Agreement or the Securities, or the Securities fail to be
secured by any theretofore perfected security interests in Collateral having a
fair market value (as determined in good faith by the Board of Directors and
certified to the Trustee in an Officers' Certificate) in excess of $3,000,000
(except as otherwise permitted by this Indenture, the Collateral Documents or
the Intercreditor Agreement), which in each circumstance continues for a period
of 30 days after receipt of a written notice thereof from the Trustee or
holders of at least 25% of the aggregate principal amount of the Securities
then outstanding, which breach has not been cured within any applicable cure
period specified in the Collateral Documents or the Intercreditor Agreement.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar
Federal or state bankruptcy, insolvency or other law for the relief of debtors.
The term "Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
The notices referred to in clauses (3), (4), (9) or (10) must specify
the Default, demand that it be remedied and state that the notice is a "Notice
of Default."
An Event of Default may also arise as described in Section 13.16.
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Section 6.02 Acceleration.
If an Event of Default (other than an Event of Default with respect to
the Issuer specified in clauses (7) and (8) of Section 6.01) occurs and is
continuing, the Trustee by notice to the Issuer, or the Securityholders of at
least 25% in principal amount of the then outstanding Securities by written
notice to the Issuer and the Trustee may declare the unpaid principal of and
any accrued interest on all the Securities (plus, in the case of an Event of
Default which is the result of an action of the Issuer intended to avoid paying
a redemption premium on the Securities or to avoid restrictions on redemptions
of the Securities contained in this Indenture or in the Securities, an amount
of premium that would have been applicable under the Securities) to be due and
payable. Upon such declaration the principal, interest and, if applicable,
redemption premium, shall become due and payable immediately if no Senior
Indebtedness is then outstanding or, if there is any Senior Indebtedness then
outstanding, five Business Days after receipt by the Issuer and the
Representatives (as defined in Section 12.02) of the Senior Indebtedness of
written notice of such declaration. If an Event of Default specified in clause
(7) or (8) of Section 6.01 occurs with respect to the Issuer, such an amount
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Securityholder. The
Securityholders of a majority in principal amount of the then outstanding
Securities by written notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default (except nonpayment of principal or
interest that has become due solely because of the acceleration) have been
cured, paid or waived.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy (under this Indenture or otherwise) to collect the
payment of principal of, premium, if any, or interest on the Securities or to
enforce the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Securityholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All
remedies are cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
Securityholders of a majority in aggregate principal amount of the
then outstanding Securities by notice to the Trustee may waive an existing
Default or Event of Default and its consequences, except a continuing Default
or Event of Default in the payment of the principal of or interest on any
Security held by a non-consenting Securityholder. 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; but no such
waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
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Section 6.05 Control by Majority.
The Securityholders of a majority in principal amount of the then
outstanding Securities may 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 it. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture or the Collateral Documents, that the
Trustee determines may be unduly prejudicial to the rights of other
Securityholders or that may expose the Trustee to personal liability.
Section 6.06 Limitation on Suits.
A Securityholder may pursue a remedy with respect to this Indenture or
the Securities only if:
(1) the Securityholder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Securityholders of at least 25% in principal amount of the
then outstanding Securities make a written request to the Trustee to pursue the
remedy;
(3) such Securityholder or Securityholders offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the provision of
indemnity; and
(5) during such 60-day period the Securityholders of a majority in
principal amount of the then outstanding Securities do not give the Trustee a
direction inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of another
Securityholder or to obtain a preference or priority over another
Securityholder.
Section 6.07 Rights of Securityholders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Securityholder to receive payment of principal of, premium, if any, and
interest on the Security, on or after the respective due dates expressed in the
Security, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
the Securityholder, except that no Securityholder shall have the right to
institute any such suit, if and to the extent that the institution or
prosecution thereof or the entry of judgment therein would under applicable law
result in the surrender, impairment, waiver, or loss of the Liens created
pursuant to the Collateral Documents upon any property subject to such Liens.
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Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(l) or (2) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Issuer for the whole amount of
principal and interest remaining unpaid on the Securities and interest on
overdue principal and, to the extent lawful, interest and 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.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and 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 the Securityholders allowed in any judicial proceedings relative to the
Issuer (or any other obligor upon the Securities), their creditors or their
property and shall be entitled and empowered to collect, receive and distribute
any money or other property payable or deliverable on any such claims and any
custodian in any such judicial proceeding is hereby authorized by each
Securityholder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due to 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 7.07 hereof.
To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties which the Securityholders may
be entitled to receive in such proceeding whether in liquidation or under any
plan of reorganization or arrangement or otherwise. Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights
of any Securityholder thereof, or to authorize the Trustee to vote in respect
of the claim of any Securityholder in any such proceeding.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07, including payment of all compensation, expense and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of
collection;
Second: to Securityholders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Securities for
principal and interest, respectively;
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Third: without duplication, to Securityholders for any other
Obligations owing to the Securityholders under the Securities or this
Indenture; and
Fourth: to the Issuer or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Securityholders.
Section 6.11 Undertaking for Costs.
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 or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a
Securityholder pursuant to Section 6.07 hereof, or a suit by Securityholders of
more than 10% in principal amount of the then outstanding Securities.
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee.
(1) If an Event of Default has occurred and is continuing, 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
his own affairs.
(2) Except during the continuance of an Event of Default:
(a) The duties of the Trustee shall be determined solely
by the express provisions of this Indenture and the Trustee need
perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations shall
be read into this Indenture against the Trustee.
(b) 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, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to
the requirements of this Indenture.
(3) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
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(a) This paragraph does not limit the effect of paragraph
(2) of this Section.
(b) In the absence of bad faith on its part, the Trustee shall
not be liable for any error of judgment made in good faith by a Responsible
Officer.
(c) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(4) Whether or not therein expressly so provided, every provision
of this Indenture or the Collateral Documents that in any way relates to the
Trustee is subject to paragraphs (1), (2) and (3) of this Section and, if the
Indenture is qualified under the TIA, the requirements of the TIA.
(5) No provision of this Indenture or the Collateral Documents
shall require the Trustee to expend or risk its own funds or incur any
liability. The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(6) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuer.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 7.02 Rights of Trustee.
(1) The Trustee may conclusively rely upon any document believed
by it to be genuine and to have been signed or presented by the proper person.
The Trustee need not investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(3) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(4) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers conferred upon it by this Indenture.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Issuer or an
Affiliate of the Issuer with the same rights
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it would have if it were not Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to Sections 7.10 and 7.11.
Section 7.04 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture, the Collateral Documents, the
Intercreditor Agreement or the Securities, it shall not be accountable for the
Issuer's use of the proceeds from the Securities or any money paid to the
Issuer or upon the Issuer's direction under any provision hereof, it shall not
be responsible for the use or application of any money received by any Paying
Agent other than the Trustee and it shall not be responsible for any statement
or recital herein or any statement in the Securities or any other document in
connection with the sale of the Securities or pursuant to this Indenture other
than its certificate of authentication. The Trustee makes no representation as
to the validity, value or condition of any property covered or intended to be
covered by the Lien of the Collateral Documents or any part thereof or as to
the title of the Issuer to such property or as to the security afforded by the
Collateral Documents or hereby.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
known to a Responsible Officer of the Trustee, the Trustee shall mail to
Securityholders a notice of the Default or Event of Default within 90 days
after it occurs. Except in the case of a Default or Event of Default in
payment on any Security pursuant to Section 6.01(l) or (2) hereof, the Trustee
may withhold the notice if it determines that withholding the notice is in the
interests of Securityholders.
Section 7.06 Reports by Trustee to Securityholders.
If this Indenture is qualified under the TIA, the Trustee shall (i)
within 60 days after each May 15 beginning with the May 15 following the date
of such qualification, mail to Securityholders a brief report dated as of such
reporting date that complies with TIA Section 313(a) (but if no event
described in TIA Section 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted), (ii) comply with
TIA Section 313(b), and (iii) transmit by mail all reports as required by TIA
Section 313(c).
Commencing at the time this Indenture is qualified under the TIA, a
copy of each report at the time of its mailing to Securityholders shall be
filed with the SEC and each stock exchange on which the Securities are listed.
The Issuer shall promptly notify the Trustee when this Indenture becomes
qualified under the TIA.
Section 7.07 Compensation and Indemnity.
The Issuer shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuer shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred
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or made by it in addition to the compensation for its services. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel, except such disbursements, advances and expenses
as may be attributable to its negligence or bad faith.
The Issuer shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it without negligence or bad faith on its
part arising out of or in connection with the acceptance or administration of
its duties under this Indenture, except as set forth below. The Trustee shall
notify the Issuer promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Issuer shall not relieve the Issuer of
its obligations hereunder. The Issuer shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel and the
Issuer shall pay the reasonable fees and expenses of such counsel. The Issuer
need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld.
The obligations of the Issuer under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture.
To secure the Issuer's payment obligations in this Section, the
Trustee shall have a Lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities. Such Lien shall survive the satisfaction
and discharge of this Indenture, the Collateral Documents and the Intercreditor
Agreement.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(7) or (8) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 7.08 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign at any time and be discharged from the trust
hereby created by so notifying the Issuer. The Securityholders of a majority
in principal amount of the then outstanding Securities may remove the Trustee
by so notifying the Trustee and the Issuer. The Issuer may remove the Trustee
if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a Custodian or public officer takes charge of the Trustee or
its property; or
(4) the Trustee becomes incapable of acting.
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If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Issuer shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the
Securityholders of a majority in principal amount of the then outstanding
Securities may appoint a successor Trustee to replace the successor Trustee
appointed by the Issuer.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuer or the
Securityholders of at least 10% in principal amount of the then outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee, after written request by any Securityholder who has
been a Securityholder for at least six months, fails to comply with Section
7.10, such Securityholder may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture and the Intercreditor Agreement. The successor Trustee
shall mail a notice of its succession to Securityholders. The retiring Trustee
shall promptly transfer all property held by it as Trustee to the successor
Trustee, provided all sums owing to the Trustee hereunder have been paid and
subject to the Lien provided for in Section 7.07. Notwithstanding replacement
of the Trustee pursuant to this Section 7.08, the Issuer's obligations under
Section 7.07 hereof shall continue for the benefit of the retiring Trustee.
Section 7.9 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
Section 7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America or of any state thereof authorized under such laws to exercise
corporate trustee power, shall be subject to supervision or examination by
Federal or state authority and shall have a combined capital and surplus of at
least $100,000,000 as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Sections 310(a)(1) and 310(a)(5). The Trustee is subject
to TIA Section 310(b).
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Section 7.11 Preferential Collection of Claims Against Issuers.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuer may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officers' Certificate, at any time, with respect to
the Securities, elect to have either Section 8.02 or 8.03 be applied to all
outstanding Securities upon compliance with the conditions set forth below in
this Article 8.
Section 8.02 Legal Defeasance and Discharge.
Upon the Issuer's exercise under Section 8.01 of the option applicable
to this Section 8.02, the Issuer shall be deemed to have been discharged from
its obligations with respect to all outstanding Securities on the date the
conditions set forth below are satisfied (hereinafter "Legal Defeasance"). For
this purpose, such Legal Defeasance means that the Issuer shall be deemed to
have paid and discharged the entire Indebtedness represented by the outstanding
Securities, which shall thereafter be deemed to be "outstanding" only for the
purposes of Section 8.05 and the other Sections of this Indenture referred to
in (a) and (b) below, and to have satisfied all its other obligations under
such Securities and this Indenture (and the Trustee, on demand of and at the
expense of the Issuer, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (a) the rights of Securityholders to receive solely
from the trust fund described in Section 8.04, and as more fully set forth in
such Section, payments in respect of the principal of, premium, if any, and
interest on such Securities when such payments are due, (b) the Issuer's
obligations with respect to such Securities under Sections 2.04, 2.06, 2.07,
2.10 and 4.02 and Article 11, (c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and the Issuer's obligations in connection
therewith and (d) this Article 8. Subject to compliance with this Article 8,
the Issuer may exercise its option under this Section 8.02 notwithstanding the
prior exercise of its option under Section 8.03 with respect to the Securities.
Section 8.03 Covenant Defeasance.
Upon the Issuer's exercise under Section 8.01 of the option applicable
to this Section 8.03, the Issuer shall be released from its obligations under
the covenants contained in Sections 4.07, 4.08, 4.09, 4.10, 4.11 and 4.14 and
Article 5 with respect to the outstanding Securities on and after the date the
conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"),
and the Securities shall thereafter be deemed not "outstanding" for the
purposes of any direction, waiver,
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consent or declaration or act of Securityholders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Securities shall not be deemed outstanding for accounting purposes). For this
purpose, such Covenant Defeasance means that, with respect to the outstanding
Securities, the Issuer may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Sections 6.01(3)
through 6.01(6), 6.01(9) and 6.01(10), but, except as specified above, the
remainder of this Indenture and such Securities (including without limitation
the Issuer's obligations under Article 11 hereof) shall be unaffected thereby.
Section 8.04 Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to application of either Section
8.02 or Section 8.03 to the outstanding Securities:
(a) The Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Securityholders, (i) cash in United States
Dollars in an amount, or (ii) non-callable United States Government Securities
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day
before the due date of any payment of principal or installment of principal,
premium, if any, or interest, cash in United States Dollars in an amount, or
(iii) a combination thereof, in such amounts, as will be sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge the principal or principal installment of,
premium, if any, and interest on the outstanding Securities on the stated
maturity or on the applicable redemption date, as the case may be, of such
principal or installment of principal, premium, if any, or interest; provided
that the Trustee shall have been irrevocably instructed to apply such money or
the proceeds of such non-callable United States Government Securities to said
payments with respect to the Securities.
(b) In the case of an election under Section 8.02, the Issuer
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably satisfactory to the Trustee confirming that (i) the Issuer has
received from, or there has been published by, the Internal Revenue Service a
ruling or (ii) since the date hereof, there has been a change in the applicable
federal income tax law, in either case to the effect that, and based thereon
such opinion shall confirm that, the Securityholders will not recognize income,
gain or loss for federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
(c) In the case of an election under Section 8.03, the Issuer
shall have delivered to the Trustee an Opinion of Counsel in the United States
to the effect that the Securityholders will not
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recognize income, gain or loss for federal income tax purposes as a result of
such Covenant Defeasance and will be subject to federal income tax in the same
amount, in the same manner and at the same times as would have been the case if
such Covenant Defeasance had not occurred;
(d) No Default or Event of Default with respect to the Securities
shall have occurred and be continuing on the date of such deposit or, insofar
as Section 6.01(7) or 6.01(8) is concerned, at any time in the period ending on
the 91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such period);
(e) Such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Issuer is a party or by
which the Issuer is bound;
(f) The Issuer shall have delivered to the Trustee an Opinion of
Counsel to the effect that after the 91st day following the deposit, (i) the
trust funds will not be subject to the effect of any applicable Bankruptcy Law
or (ii) if a court were to rule under any such law in any case or proceeding
that the trust funds remained property of the Issuer (A) assuming such trust
funds remained in the Trustee's possession prior to such court ruling to the
extent not paid to Securityholders, the Trustee will hold, for the benefit of
the Securityholders, a valid and perfected security interest in such trust
funds that is not avoidable in bankruptcy or otherwise and (B) the
Securityholders will be entitled to receive adequate protection of their
interests in such trust funds if such trust funds are used;
(g) The Issuer shall have delivered to the Trustee an Officers'
Certificate stating that the deposit made by the Issuer pursuant to its
election under Section 8.02 or 8.03 was not made by the Issuer with the intent
of preferring the Securityholders over other creditors of the Issuer or with
the intent of defeating, hindering, delaying or defrauding creditors of the
Issuer or others; and
(1) The Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel in the United States, each stating that
all conditions precedent provided for relating to either the Legal Defeasance
under Section 8.02 or the Covenant Defeasance under Section 8.03 (as the case
may be) have been complied with as contemplated by this Section 8.04.
Section 8.05 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.06, all money and non-callable United States
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.05, the "Trustee") pursuant to Section 8.04 in respect of the outstanding
Securities shall be held in trust and applied by the Trustee, in accordance
with the provisions of such Securities and this Indenture, to the payment,
either directly or through any Paying Agent (including the Issuer, if any,
acting as Paying Agent) as the Trustee may determine, to the Securityholders of
all sums due and to become due thereon in respect of principal, premium, if
any, and interest, but such money need not be segregated from other funds
except to the extent required by law.
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The Issuer shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable United
States Government Securities deposited pursuant to Section 8.04 or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Securityholders.
Anything in this Article 8 to the contrary notwithstanding. the
Trustee shall deliver or pay to the Issuer from time to time upon the Issuer's
request any money or non-callable United States Government Securities held by
it as provided in Section 8.04 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.04(a)), are in excess of the amount thereof which would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
Section 8.6 Repayment to the Issuer.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Issuer, in trust for the payment of the principal of, premium, if any,
or interest on any Security and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Issuer on its request or (if then held by the Issuer) shall be
discharged from such trust; and the Securityholder of such Security shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Issuer 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 Issuer, cause to be published once, in the New York Times and
The Wall Street Journal (national edition), 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 Issuer.
Section 8.7 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
Dollars or non-callable United States Government Securities in accordance with
Section 8.02 or 8.03, as the case may be, by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Issuer's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.02 or 8.03 until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 8.02 or 8.03, as the case may be; provided, however, that, if the
Issuer makes any payment of principal of, premium, if any, or interest on any
Security following the reinstatement of its obligations, the Issuer shall be
subrogated to the rights of the Securityholders of such Securities to receive
such payment from the money held by the Trustee or Paying Agent.
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ARTICLE 9
AMENDMENTS
Section 9.01 Without Consent of Securityholders.
The Issuer and the Trustee, as applicable, may amend or supplement
this Indenture or the Securities without the consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency,
provided such amendment or supplement does not adversely affect the rights
hereunder of any Securityholder;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(4) to comply with the requirements of the SEC in order
to effect or maintain the qualification of this Indenture under the TIA,
provided such amendment or supplement does not adversely affect the rights
under Section 13.16 of any Securityholder;
(5) to execute and deliver any documents necessary or
appropriate to release Liens on any Collateral as permitted by Section 10.03
hereof;
(6) to provide any additional Collateral for the benefit of the
Securityholders; or
(7) to make any change that does not adversely affect the
rights hereunder of any Securityholder.
Upon the request of the Issuer, accompanied by a resolution of the
Board of Directors of the Issuer authorizing the execution of any such
supplemental indenture or amendment, and upon receipt by the Trustee of the
documents described in Section 9.06 hereof required or requested by the
Trustee, the Trustee shall join with the Issuer in the execution of any
supplemental indenture or amendment authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and stipulations
which may be therein contained, but the Trustee shall not be obligated to enter
into such supplemental indenture or amendment which affects its own rights,
duties or immunities under this Indenture or otherwise.
Section 9.02 With Consent of Securityholders.
The Issuer and the Trustee, as applicable, may amend this Indenture or
the Securities with the written consent of the Securityholders of at least a
majority in principal amount of the then outstanding Securities.
Upon the request of the Issuer, accompanied by a resolution of the
Board of Directors of the Issuer authorizing the execution of any such
supplemental indenture or amendment, and upon the
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filing with the Trustee of evidence satisfactory to the Trustee of the consent
of the Securityholders as aforesaid, and upon receipt by the Trustee of the
documents described in Section 9.06 hereof, the Trustee shall join with the
Issuer in the execution of such supplemental indenture or amendment unless such
supplemental indenture or amendment affects the Trustee's own rights, duties or
immunities under this Indenture, or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture or amendment, but it shall be sufficient if such consent approves the
substance thereof.
After a supplemental indenture or amendment under this Section becomes
effective, the Issuer shall mail to the Securityholders affected thereby a
notice briefly describing the amendment or waiver. Any failure of the Issuer
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture, amendment or
waiver. Subject to Sections 6.04 and 6.07 hereof, the Securityholders of a
majority in principal amount of the Securities then outstanding may waive
compliance in a particular instance by the Issuer with any provision of this
Indenture or the Securities. However, without the consent of each
Securityholder affected, an amendment or waiver under this Section may not
(with respect to any Securities held by a non-consenting Securityholder):
(1) reduce the principal amount of Securities whose
Securityholders must consent to an amendment or waiver;
(2) reduce the rate of or change the time for payment of
interest, including default interest, on any Security;
(3) reduce the principal of or change the fixed maturity
of any Security or alter the optional or mandatory redemption provisions or the
price at which the Issuer shall offer to purchase such Securities pursuant to
Section 4.14 hereof;
(4) make any Security payable in money other than that stated in
the Security;
(5) make any change in Section 6.04 or 6.07 hereof or in this
sentence of this Section 9.02;
(6) waive a Default in the payment of principal of or interest
on, or redemption payment with respect to, any Security (other than a
Default in the payment of an amount due as a result of an acceleration if the
Securityholders rescind such acceleration pursuant to Section 6.02); or
(7) make any change in Article 11 that adversely affects the
rights of any Securityholder.
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Without the consent of each Securityholder affected, the Issuer will
not agree to amend, modify or alter the terms of the Junior Subordinated
Debenture Indenture or the Junior Subordinated Debentures in any manner that
would (i) increase the rate of, or provide for any earlier date for payment of
interest on, any Junior Subordinated Debenture, (ii) increase the principal
amount payable, or provide for any earlier maturity date, in respect of any
Junior Subordinated Debenture, (iii) alter any date on which, or any price at
which, the Issuer shall or shall be permitted to offer to purchase any Junior
Subordinated Debenture or (iv) change Article 12 of this Indenture.
Section 9.03 Compliance with Trust Indenture Act.
If at the time of an amendment to this Indenture or the Securities
this Indenture is qualified under the TIA, every amendment to this Indenture or
the Securities shall be set forth in a supplemental indenture that complies
with the TIA as then in effect.
Section 9.04 Revocation and Effect of Consents.
Until a supplemental indenture, an amendment or waiver becomes
effective, a consent to it by a Securityholder is a continuing consent by the
Securityholder and every subsequent Securityholder or portion of a Security
that evidences the same debt as the consenting Securityholder's Security, even
if notation of the consent is not made on any Security. A supplemental
indenture, amendment or waiver becomes effective in accordance with its terms
and thereafter binds every Securityholder.
The Issuer may fix a record date for determining which Securityholders
must consent to such supplemental indenture, amendment or waiver. If the
Issuer fixes a record date, the record date shall be fixed at (i) the later of
30 days prior to the first solicitation of such consent or the date of the most
recent list of Securityholders furnished to the Trustee prior to such
solicitation pursuant to Section 2.05, or (ii) such other date as the Issuer
shall designate.
Section 9.05 Notation on or Exchange of Securities.
The Trustee may place an appropriate notation about a supplemental
indenture, amendment or waiver on any Security thereafter authenticated. The
Issuer in exchange for all Securities may issue and the Trustee shall
authenticate new Securities that reflect the amendment or waiver.
Failure to make the appropriate notation or issue a new Security shall
not affect the validity and effect of such amendment or waiver.
Section 9.06 Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment or supplemental indenture
authorized pursuant to this Article 9 if the amendment does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it
does, the Trustee may, but need not, sign it. In signing or refusing to sign
such amendment or supplemental indenture, the Trustee shall be entitled to
receive, if requested, an indemnity reasonably satisfactory to it and to
receive and, subject to Section 7.01, to be fully
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protected in relying upon, an Officers' Certificate and an Opinion of Counsel
as conclusive evidence that such amendment or supplemental indenture is
authorized or permitted by this Indenture and the Collateral Documents, that it
is not inconsistent herewith or therewith, and that it will be valid and
binding upon the Issuer in accordance with its terms. The Issuer may not sign
an amendment or supplemental indenture until the Board of Directors of the
Issuer approves it.
ARTICLE 10
COLLATERAL AND SECURITY
AND INTERCREDITOR AGREEMENT
Section 10.01 Collateral Documents
The due and punctual payment of the principal of, premium, if any, and
interest on the Securities when and as the same shall be due and payable,
whether on an interest payment date, at maturity, by acceleration, repurchase,
redemption or otherwise, and interest on the overdue principal of and interest
(to the extent permitted by law), if any, on the Securities and performance of
all other Obligations of the Issuer to the Securityholders or the Trustee under
this Indenture and the Securities, according to the terms hereunder or
thereunder, shall be secured as provided in the Collateral Documents and the
Intercreditor Agreement. Each Securityholder, by its acceptance of a Security,
consents and agrees to the terms of the Collateral Documents and the
Intercreditor Agreement (including, without limitation, the provisions
providing for foreclosure and release of Collateral) as the same may be in
effect or may be amended from time to time in accordance with the terms thereof
and hereof and authorizes and directs the Trustee to enter into the
Intercreditor Agreement and to exercise its rights thereunder in accordance
therewith. The Issuer will do or cause to be done all such acts and things as
may be necessary or proper, or as may be required by the provisions of the
Collateral Documents and the Intercreditor Agreement, to assure and confirm to
the Trustee the security interest in the Collateral contemplated hereby and by
the Collateral Documents and the Intercreditor Agreement, so as to render the
same available for the security and benefit of this Indenture and of the
Securities according to the intent and purposes herein expressed.
In the event that at any time after the date of this Indenture, the
Issuer or Sunbelt acquires any real estate, to the extent reasonably determined
necessary or desirable by the Collateral Agent, additional security documents
shall be entered into in order to effectively grant a perfected security
interests on such real estate to the Collateral Agent, together with such other
documents, mortgage title insurance policies, certificates, resolutions,
instruments, financing statements, opinions and writings that would have been
required to be delivered if such perfected security interest had been created
on the date of this Indenture, all of which shall be in form and substance
satisfactory to the Collateral Agent.
Section 10.02 Recording and Opinions.
(a) The Issuer shall furnish to the Trustee prior to
any qualification of this Indenture under the TIA an Opinion of Counsel
either (i) stating that in the opinion of such counsel all action
has been taken with respect to the recording, registering and filing of this
Indenture,
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financing statements or other instruments necessary to make effective the Liens
intended to be created by the Collateral Documents and the Intercreditor
Agreement, and reciting the details of such action or (ii) stating that, in the
opinion of such counsel, no such action is necessary to make such Liens
effective.
(b) If this Indenture is qualified under the TIA,
the Issuer shall furnish to the Trustee within 3 months after each anniversary
of the date of this Indenture beginning with the anniversary following the date
of such qualification, an Opinion of Counsel, dated as of such date, stating
either that (i) in the opinion of such counsel, all action has been taken with
respect to the recording, registering, filing, re-recording, re-registering and
refiling of all supplemental indentures, financing statements, continuation
statements or other instruments of further assurance as is necessary to
maintain the Liens of the Collateral Documents and reciting the details of such
action or (ii) in the opinion of such Counsel, no such action is necessary to
maintain such Lien; provided that the Indenture is qualified under the TIA.
Section 10.03 Release of Collateral.
(a) Liens on Collateral will be released as specified in
the Intercreditor Agreement. Upon compliance with the provisions of Section
10.04 hereof, the Trustee shall execute, deliver or acknowledge any necessary
or proper instruments provided by or on behalf of the Issuer to evidence the
release of any Collateral permitted to be released pursuant to the
Intercreditor Agreement.
(b) The release of any Collateral from the terms hereof
and of the Collateral Documents and the Intercreditor Agreement will not be
deemed to impair the security under this Indenture in contravention of the
provisions hereof if and to the extent the Collateral is released pursuant to
the Collateral Documents and the Intercreditor Agreement. The Trustee and each
of the Securityholders acknowledge that a release of Collateral in accordance
with the terms of the Collateral Documents and the Intercreditor Agreement will
not be deemed for any purpose to be an impairment of the security under this
Indenture.
Section 10.04 Certificates of the Issuer.
In the event this Indenture is qualified under the TIA, to the extent
applicable the Issuer shall comply with (a) TIA Section 314(b), relating to
Opinions of Counsel regarding the Lien of the Collateral Documents and (b) TIA
Section 314(d), relating to the release of Collateral from the Lien of the
Collateral Documents and Officers' Certificates or other documents regarding
fair value of the Collateral. Any certificate or opinion required by TIA
Section 314(d) may be made by an Officer of the Issuer or any other obligor
upon the Securities, as applicable, to the extent permitted by TIA Section
314(d).
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Section 10.05 Authorization of Actions to be Taken by the Trustee under the
Intercreditor Agreement.
Each Securityholder, by acceptance of a Security, consents and agrees
to the terms of the Intercreditor Agreement as the same may be in effect or may
be amended from time to time in accordance with the terms thereof and hereof
and authorizes and directs the Trustee to enter into the Intercreditor
Agreement and to exercise its non-discretionary rights thereunder in
accordance therewith. The Trustee may, in its sole discretion and without the
consent of the Securityholders, on behalf of the Securityholders, take all
actions it deems necessary or appropriate in order to (a) enforce any of the
terms of the Intercreditor Agreement and (b) collect and receive any and all
amounts payable thereunder in respect of the Obligations of the Issuer
hereunder. The Trustee shall have the power to institute and to maintain such
suits and proceedings as it may deem expedient to prevent any impairment of the
Collateral by any acts that may be unlawful or in violation of the Collateral
Documents, the Intercreditor Agreement or this Indenture, and such suits and
proceedings as the Trustee may deem expedient to preserve or protect its
interests and the interest of the Securityholders in the Collateral (including
power to institute and maintain suits or proceedings to restrain the
enforcement of or compliance with any legislative or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid if
the enforcement of, or compliance with, such enactment, rule or order would
impair the security interest hereunder or be prejudicial to the interests of
the Securityholders or of the Trustee). In the event that the Trustee on
behalf of the Securityholders shall act in a discretionary matter, make
elections or vote under the Intercreditor Agreement, the Trustee shall act,
make elections or vote as directed by the Securityholders of a majority in
principal amount of the then outstanding Securities and all of the
Securityholders shall be bound by such direction; provided that the Trustee
shall not, in its capacity as a party to the Intercreditor Agreement, approve
the termination of the Intercreditor Agreement or the release of Liens on all
or substantially all of the Collateral under the Collateral Documents without
the written consent of each Securityholder.
Section 10.06 Authorization of Receipt of Funds by the Trustee under the
Intercreditor Agreement.
The Trustee is authorized to receive any funds for the benefit of the
Securityholders distributed to it under the Intercreditor Agreement, and to
make further distributions of such funds to the Securityholders according to
the provisions of this Indenture.
Section 10.07 Permitted Investments.
The Trustee will cooperate with the Issuer or any Subsidiaries in
ensuring that any Permitted Investments held by or pledged to the Collateral
Agent as Collateral may be freely and promptly sold or disposed of by the
Issuer or such Subsidiaries to the extent otherwise permitted under this
Indenture.
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Section 10.08 Intercreditor Agreement.
To the extent that terms in this Indenture are defined by reference to
the Intercreditor Agreement or this Section 10.08 incorporates any provision of
the Intercreditor Agreement by reference thereto or otherwise affords the
Issuer or its Subsidiaries the benefit of any provision contained therein, any
amendment to any such term or provision in the Intercreditor Agreement shall
not be effective against the Issuer for purposes of this Indenture unless such
amendment is consented to by the Issuer. For purposes of this Indenture, all
such terms so defined by reference to the Intercreditor Agreement shall
continue to have the meanings set forth therein notwithstanding the termination
thereof.
ARTICLE 11
CONVERSION
Section 11.01 Conversion Privilege. A Securityholder of a Security may
convert such Security into Common Stock at any time after January 15, 1998 and
prior to October 15, 2007. The number of shares of Common Stock issuable upon
conversion of a Security per $1,000 of Principal Amount thereof (the
"Conversion Rate") shall be that set forth in paragraph 8 in the Securities,
subject to adjustment as herein set forth.
A Securityholder may convert a portion of the Principal Amount of a
Security if the portion is $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to conversion of all of a Security also
apply to conversion of a portion of a Security.
"Quoted Price" means, for any given day, the last reported per share
sales price (or, if no sales price is reported, the average of the bid and ask
or, if more than one in either case, the average of the average bid and average
ask prices, on such day) of the Common Stock on the New York Stock Exchange
Composite Tape or, in the event shares of Common Stock are not listed on the
New York Stock Exchange, in the composite transactions for such other national
or regional securities exchange upon which the Common Stock is listed, or, if
the shares of Common Stock are not listed on a national or regional securities
exchange, as quoted on the National Association of Securities Dealers Automated
Quotation System or by the National Quotation Bureau Incorporated. In the
absence of one or more such quotations, the Issuer shall be entitled to
determine the Quoted Price on the basis of such quotations as it, after
consultation with a nationally recognized investment banking firm, considers
appropriate.
"Average Quoted Price" means the average of the Quoted Prices for the
shorter of
(i) 15 consecutive trading days ending on the last full trading
day prior to the Time of Determination with respect to the rights or
distribution in respect of which the Average Quoted Price is being
calculated, or
(ii) The period (x) commencing on the date next succeeding the
first public announcement of (a) the issuance of rights or (b) the
distribution, in each case, in respect of
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which the Average Quoted Price is being calculated and (y)
proceeding through the last full trading day prior to the Time of
Determination with respect to the rights or distribution in respect
of which the Average Quoted Price is being calculated, or
(iii) the period, if any, (x) commencing on the date next
succeeding the Ex-Dividend Time (as defined below) with respect to
the next preceding (a) issuance of rights or (b) distribution, in
each case, for which an adjustment is required by the provisions of
Section 11.06(4), 11.07 or 11.08 and (y) proceeding through the last
full trading day prior to the Time of Determination with respect to
the rights or distribution in respect of which the Average Quoted
Price is being calculated.
In the event that the Ex-Dividend Time (or in the case of a
subdivision, combination or reclassification, the effective date with respect
thereto) with respect to a dividend, subdivision, combination or
reclassification to which Section 11.06(1), (2), (3) or (5) applies occurs
during the period applicable for calculating "Average Quoted Price" pursuant to
the definition in the preceding sentence, "Average Quoted Price" shall be
calculated for such period in a manner determined by the Board of Directors to
reflect the impact of such dividend, subdivision, combination or
reclassification on the Quoted Price during such period.
"Time of Determination" means the time and date of the earlier of (i)
the determination of stockholders entitled to receive rights or a distribution,
in each case, to which Section 11.07 and 11.08 applies and (ii) the time
("Ex-Dividend Time") immediately prior to the commencement of "ex-dividend"
trading for such rights or distribution on the New York Stock Exchange or such
other national or regional exchange or market on which the Common Stock is then
listed or quoted.
Section 11.02 Conversion Procedure. To convert a Security a Securityholder
must satisfy the requirements in paragraph 8 of the Securities. The date on
which the Securityholder satisfies all those requirements is the conversion
date (the "Conversion Date"). Upon conversion of any Security, a certificate
for the full number of shares and cash in lieu of any fractional shares
pursuant to Section 11.03 will be delivered through the Conversion Agent no
later than the seventh Business Day following the Conversion Date. The person
in whose name the certificate for the Common Stock is registered shall be
treated as the holder thereof of record on and after the Conversion Date;
provided, however, that no surrender of a Security on any date when the capital
stock transfer books of the Issuer shall be closed shall be effective to
constitute the person or persons entitled to receive the shares of Common Stock
upon such conversion as the record holder or holders of such shares of Common
Stock on such date, but such surrender shall be effective to constitute the
person or persons entitled to receive such shares of Common Stock as the record
holder or holders thereof for all purposes at the close of business on the next
succeeding day on which such stock transfer books are open; such conversion
shall be at the Conversion Rate in effect on the date that such Security shall
have been surrendered for conversion, as if such stock transfer books had not
been closed. Upon conversion of a Security, such person shall no longer be a
Securityholder of such Security.
No payment or adjustment will be made for dividends on or other
distribution with respect to any Common Stock except as provided in this
Article 11.
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If the Securityholder converts more than one Security at the same
time, the number of shares of Common Stock issuable upon the conversion shall
be based on the total Principal Amount of the Securities converted.
Upon surrender of a Security that is converted in part, the Issuer
shall execute, and the Trustee shall authenticate and deliver to the
Securityholder, a new Security in an authorized denomination equal in Principal
Amount to the unconverted portion of the Security surrendered.
If the last day on which a Security may be converted is a Legal
Holiday in a place where a Conversion Agent is located, the Security may be
surrendered to that Conversion Agent on the next succeeding day that is not a
Legal Holiday.
Section 11.03 Fractional Shares. The Issuer will not issue a fractional
share of Common Stock upon conversion of a Security. Instead, the Issuer will
deliver cash for the current market value of the fractional share. The current
market value of a fractional share shall be determined to the nearest 1/1,000th
of a share by multiplying the Quoted Price, on the last Business Day prior to
the Conversion Date, by the fractional amount and rounding the product to the
nearest whole cent.
Section 11.04 Taxes on Conversion. If a Securityholder converts a Security,
the Issuer shall pay any documentary, stamp or similar issue or transfer tax
due on the issue of shares of Common Stock upon the conversion. However, the
Securityholder shall pay any such tax which is due because the Securityholder
requests the shares to be issued in a name other than the Securityholder's
name. The Conversion Agent may refuse to deliver the certificates representing
the Common Stock being issued in a name other than the Securityholder's name
until the Conversion Agent receives a sum sufficient to pay any tax which will
be due because the shares are to be issued in a name other than the
Securityholder's name. Nothing herein shall preclude any tax withholding
required by law or regulations.
Section 11.05 Issuer to Provide Stock. Prior to becoming a corporation, the
Issuer shall not amend the Huntway Partnership Agreement to limit the number of
Common Units which can be issued thereunder. The Issuer shall, effective upon
becoming a corporation, and from time to time thereafter as may be necessary,
reserve out of its authorized but unissued Common Stock a sufficient number of
shares of Common Stock to permit the conversion of the Securities.
All shares of Common Stock delivered upon conversion of the Securities
shall be newly issued shares or treasury shares, shall be duly and validly
issued and (except in the case of Common Units) fully paid and nonassessable
and shall be free from preemptive rights and free of any lien or adverse claim.
Holders of Common Units of Huntway shall not be liable for the obligations of
Huntway except to the extent provided in Sections 17-303 and 17-607 of the
Delaware Revised Uniform Limited Partnership Act.
The Issuer shall endeavor promptly to comply with all Federal and
State securities laws regulating the offer and delivery of shares of Common
Stock upon conversion of Securities, if any, and will list or cause to have
quoted such shares of Common Stock on each national securities
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exchange or in the over-the-counter market or such other market on which the
Common Stock is then listed or quoted.
Section 11.06 Adjustment for Change in Capital Stock. If, after the Issue
Date of the Securities, the Issuer:
(1) pays a dividend or makes a distribution on its Common
Stock in shares of its Common Stock;
(2) subdivides its outstanding shares of Common Stock into a
greater number of shares;
(3) combines its outstanding shares of Common Stock into
a smaller number of shares;
(4) pays a dividend or makes a distribution on its Common
Stock in shares of its capital stock (other than Common Stock or
rights, warrants or options for its capital stock); or
(5) issues by reclassification of its Common Stock any
shares of its capital stock (other than rights, warrants or options
for its capital stock),
then the conversion privilege and the Conversion Rate in effect immediately
prior to such action shall be adjusted so that the Securityholder of a Security
thereafter converted may receive the number of shares of capital stock of the
Issuer which such Securityholder would have owned immediately following such
action if such Securityholder had converted the Security immediately prior to
such action.
The adjustment shall become effective immediately after the record
date in the case of a dividend or distribution and immediately after the
effective date in the case of a subdivision, combination or reclassification.
If after an adjustment a Securityholder of a Security upon conversion
of such Security may receive shares of two or more classes of capital stock of
the Issuer, the Conversion Rate shall thereafter be subject to adjustment upon
the occurrence of an action taken with respect to any such class of capital
stock as is contemplated by this Article 11 with respect to the Common Stock,
on terms comparable to those applicable to Common Stock in this Article 11.
Section 11.7 Adjustment for Rights Issue. If after the Issue Date of the
Securities, the Issuer distributes any rights, warrants or options to all
holders of its Common Stock entitling them to purchase shares of Common Stock
at a price per share less than the Quoted Price as of the Time of
Determination, the Conversion Rate shall be adjusted in accordance with the
formula:
R' = R x (O + N)
---------------
(O + (N x P)/M)
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where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
O = the number of shares of Common Stock outstanding on
the record date for the distribution to
which this Section 11.07 is being applied.
N = the number of additional shares of Common Stock
offered pursuant to the distribution.
P = the offering price per share of the additional
shares.
M = the Average Quoted Price, minus, in the case (i) a
distribution to which Section 11.06(4)
applies or (ii) a distribution to which Section 11.08
applies, for which, in each case, (x) the
record date shall occur on or before the record date
for the distribution to which this Section
11.07 applies and (y) the Ex-Dividend Time shall
occur on or after the date of the Time of
Determination for the distribution to which this
Section 11.07 applies, the fair market value
(on the record date for the distribution to which
this Section 11.07 applies) of the
(1) capital stock of the Issuer distributed in
respect of each share of Common Stock in
such Section 11.06(4) distribution and
(2) assets of the Issuer or debt securities or
any rights, warrants or options to purchase
securities of the Issuer distributed in respect of
each share of Common Stock in such Section
11.08 distribution.
The Board of Directors shall determine fair market values for
the purposes of this Section 11.07
The adjustment shall become effective immediately after the record
date for the determination of holders entitled to receive the rights, warrants
or options to which this Section 11.07 applies.
No adjustment shall be made under this Section 11.07 if the application
of the formula stated above in this Section 11.07 would result in a value
of R' that is less than the value of R.
Section 11.8 Adjustment for Other Distributions. If, after the Issue Date
of the Securities, the Issuer distributes to all holders of its Common Stock
any of its assets, or debt securities or any rights, warrants or options to
purchase securities of the Issuer (including securities or cash, but excluding
(x) distributions of capital stock referred to in Section 11.06 and
distributions of rights, warrants or options referred to in Section 11.07 and
(y) cash dividends or other cash distributions
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unless such cash dividends or other cash distributions are Extraordinary Cash
Dividends (as defined below)) the Conversion Rate shall be adjusted, subject to
the provisions of the last paragraph of this Section 11.08, in accordance with
the formula:
R' = R x M
-----
M-F
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
M = the Average Quoted Price, minus, in the case of a
distribution to which Section 11.06(4)
applies, for which (i) the record date shall occur
on or before the record date for the
distribution to which this Section 11.08 applies and
(ii) the Ex-Dividend Time shall occur on
or after the date of the Time of Determination for
the distribution to which this Section 11.08
applies, the fair market value (on the record date
for the distribution to which this Section
11.08 applies) of any capital stock of the Issuer
distributed in respect of each share of
Common Stock in such Section 11.06(4) distribution.
F = the fair market value (on the record date for the
distribution to which this Section 11.08
applies) of the assets, securities, rights, warrants
or options to be distributed in respect of
each share of Common Stock in the distribution to
which this Section 11.08 is being applied
(including, in the case of cash dividends or other
cash distributions giving rise to an
adjustment, all such cash distributed concurrently).
The Board of Directors shall determine fair market values for the
purposes of this Section 11.08
The adjustment shall become effective immediately after the
record date for the determination of shareholders entitled to receive the
distribution to which this Section 11.08 applies.
For purposes of this Section 11.08, the term "Extraordinary
Cash Dividend" shall mean any cash dividend or cash distribution (each a "cash
dividend" for purposes of this Section 11.08) with respect to the Common Stock
the amount of which, together with the aggregate amount of cash dividends on
the Common Stock to be aggregated with such cash dividend in accordance with
the provisions of this paragraph, equals or exceeds the threshold percentages
set forth in item (i) or (ii) below:
(i) If, upon the date prior to the Ex-Dividend Time with
respect to a cash dividend on the Common Stock, the aggregate amount
of such cash dividend together with the amounts of all cash dividends
on the Common Stock with Ex-Dividend Times occurring
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in the 85 consecutive day period ending on the date prior to the
Ex-Dividend Time with respect to the cash dividend to which this
provision is being applied equals or exceeds 12.5% of the average of
the Quoted Prices during the period beginning on the date after the
first such Ex-Dividend Time in such period and ending on the date
prior to the Ex-Dividend Time with respect to the cash dividend to
which this provision is being applied (except that if no other cash
dividend has had an Ex-Dividend Time occurring in such period, the
period for calculating the average of the Quoted Prices shall be the
period commending 85 days prior to the date prior to the Ex-Dividend
Time with respect to the cash dividend to which this provision is
being applied), such cash dividend together with each other cash
dividend with an Ex-Dividend Time occurring in such 85 day period
shall be deemed to be an Extraordinary Cash Dividend and for purposes
of applying the formula set forth above in this Section 11.08, the
value of "F" shall be equal to (w) the aggregate amount of such cash
dividend together with the amounts of the other cash dividends with
Ex-Dividend Times occurring in such period minus (x) the aggregate
amount of such other cash dividends with Ex-Dividend Times occurring
in such period for which a prior adjustment in the Conversion Rate was
previously made under this Section 11.08.
(ii) If, upon the date prior to the Ex-Dividend Time with
respect to a cash dividend on the Common Stock, the aggregate amount
of such cash dividends on the Common Stock with Ex-Dividend Times
occurring in the 365 consecutive day period ending on the date prior
to the Ex-Dividend Time with respect to the cash dividend to which
this provision is being applied equals or exceeds 25% of the average
of the Quoted Prices during the period beginning on the date after the
first such Ex-Dividend Time in such period and ending on the date
prior to the Ex-Dividend Time with respect to the cash dividend to
which this provision is being applied (except that if no other cash
dividend has had an Ex-Dividend Time occurring in such period, the
period for calculating the average of the Quoted Prices shall be the
period commencing 365 days prior to the date prior to the Ex-Dividend
Time with respect to the cash dividend to which this provision is
being applied), such cash dividend together with each other cash
dividend with an Ex-Dividend Time occurring in such 365 day period
shall be deemed to be the Extraordinary Cash Dividend and for purposes
of applying the formula set forth above in this Section 11.08, the
value of "F" shall be equal to (y) the aggregate amount of such cash
dividend together with the amounts of the other cash dividends with
Ex-Dividend Times occurring in such period minus (z) the aggregate
amount of such other cash dividends with Ex-Dividend Times occurring
in such period for which a prior adjustment in the Conversion Rate was
previously made under this Section 11.08.
The Company shall not make any distribution to which this
Section 11.08 would otherwise apply where "F" is greater than or equal to "M."
Section 11.9 When Adjustment May Be Deferred. No adjustment in the
Conversion Rate need be made unless the adjustment would require an increase or
decrease of at least 1% in the Conversion Rate. Any adjustments that are not
made shall be carried forward and taken into account in any subsequent
adjustment.
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All calculations under this Article 11 shall be made to the
nearest cent or to the nearest 1/1,000th of a share, as the case may be.
Section 11.10 When No Adjustment Required. No adjustment need be made for a
transaction referred to in Section 11.06, 11.07, 11.08 or 11.14 if
Securityholders are to participate in the transaction on a basis and with
notice that the Board of Directors determines to be fair and appropriate in
light of the basis and notice on which holders of Common Stock participate in
the transaction.
No adjustment need be made for rights to purchase Common
Stock pursuant to an Issuer plan for reinvestment of dividends or interest or
for rights to purchase capital stock pursuant to any future dividend or
distribution of Rights.
No adjustment need be made for a change in the par value or no
par value of the Common Stock.
Section 11.11 Notice of Adjustment. Whenever the Conversion Rate is
adjusted, the Issuer shall promptly mail to Securityholders a notice of the
adjustment. The Issuer shall file with the Trustee and the Conversion Agent
such notice and a certificate from the Issuer's independent public accountants
briefly stating the facts requiring the adjustment and the manner of computing
it. The certificate shall be conclusive evidence that the adjustment is
correct. Neither the Trustee nor any Conversion Agent shall be under any duty
or responsibility with respect to any such certificate except to exhibit the
same to any Securityholder desiring inspection thereof.
Section 11.12 Voluntary Increase. The Issuer from time to time may increase
the Conversion Rate by any amount for any period of time. Whenever the
Conversion Rate is increased, the Issuer shall mail to Securityholders and file
with the Trustee and the Conversion Agent a notice of the increase. The Issuer
shall mail the notice at least 15 days before the date the increased Conversion
Rate takes effect. The notice shall state the increased Conversion Rate and
the period it will be in effect.
A voluntary increase of the Conversion Rate does not change or adjust
the Conversion Rate otherwise in effect for purposes of Section 11.06, 11.07 or
11.08.
Section 11.13 Notice of Certain Transactions. If:
(1) the Issuer takes any action that would require an
adjustment in the Conversion Rate pursuant to Section 11.06, 11.07 or
11.08 (unless no adjustment is to occur pursuant to Section 11.10); or
(2) the Issuer takes any action that would require a
supplemental indenture pursuant to Section 11.14; or
(3) there is a liquidation or dissolution of the Issuer;
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then the Issuer shall mail to Securityholders and file with the Trustee and the
Conversion Agent a notice stating the proposed record date for a dividend or
distribution or the proposed effective date of a subdivision, combination,
reclassification, consolidation, merger, binding share exchange, transfer,
liquidation or dissolution. The Issuer shall file and mail the notice at least
15 days before such date. Failure to file or mail the notice or any defect in
it shall not affect the validity of the transaction.
Section 11.14 Reorganization of Issuer; Special Distributions. If the
Issuer is a party to a transaction subject to Section 5.1 or a merger or
binding share exchange which reclassifies or changes its outstanding Common
Stock, the person obligated to deliver securities, cash or other assets upon
conversion of Securities shall enter into a supplemental indenture. If the
issuer of securities deliverable upon conversion of Securities is an Affiliate
of the successor Issuer, that issuer shall join in the supplemental indenture.
The supplemental indenture shall provide that the holder of a Security
may convert it into the kind and amount of securities, cash or other assets
which such Securityholder would have received immediately after the
consolidation, merger, binding share exchange or transfer if such
Securityholder had converted the Security immediately before the effective date
of the transaction, assuming (to the extent applicable) that such
Securityholder (i) was not a constituent person to such transaction; (ii) made
no election with respect thereto; and (iii) was treated alike with the
plurality of non-electing Securityholders. The supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be practical
to the adjustments provided for in this Article 11. The successor Issuer shall
mail to Securityholders a notice briefly describing the supplemental indenture.
If this Section applies, neither Section 11.06 nor 11.07 applies.
If the Issuer makes a distribution to all holders of its Common Stock
of any of its assets, or debt securities or any rights, warrants or options to
purchase securities of the Issuer that, but for the provisions of the last
paragraph of Section 11.08, would otherwise result in an adjustment in the
Conversion Rate pursuant to the provisions of Section 11.08, then, from and
after the record date for determining the holders of Common Stock entitled to
receive the distribution, a Securityholder of a Security that converts such
Security in accordance with the provisions of this Indenture would upon such
conversion be entitled to receive, in addition to the shares of Common Stock
into which the Security is convertible, the kind and amount of securities, cash
or other assets comprising the distribution that such Securityholder would have
received if such Securityholder had converted the Security immediately prior to
the record date for determining the holders of Common Stock entitled to receive
the distribution.
Section 11.15 Trustee's Adjustment Disclaimer. The Trustee has no duty to
determine when an adjustment or calculation under this Article 11 should be
made, how it should be made or what it should be. The Trustee has no duty to
determine whether a supplemental indenture under Section 11.14 need be entered
into or whether any provisions of any supplemental indenture are correct. The
Trustee shall not be accountable for and makes no representation as to the
validity or value of any securities or assets issued upon conversion of
Securities. The Trustee shall not be responsible for
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the Issuer's failure to comply with this Article 11. Each Conversion Agent
shall have the same protection under this Section 11.15 as the Trustee.
Section 11.16 Simultaneous Adjustments. In the event that this Article 11
requires adjustments to the Conversion Rate under more than one of Sections
11.06(4), 11.07 or 11.08, and the record dates for the distributions giving
rise to such adjustments shall occur on the same date, then such adjustments
shall be made by applying, first, the provisions of Section 11.06, second, the
provisions of Section 11.08 and, third, the provisions of Section 11.07.
Section 11.17 Successive Adjustments. After an adjustment to the Conversion
Rate under this Article 11, any subsequent event requiring an adjustment under
this Article 11 shall cause an adjustment to the Conversion Rate as so
adjusted.
Section 11.18 Rights Issued in Respect of Common Stock Issued upon
Conversion. Each share of Common Stock issued upon conversion of Securities
pursuant to this Article 11 shall be entitled to receive the appropriate number
of preferred share purchase rights ("Rights"), if any, and the certificates
representing the Common Stock issued upon such conversion shall bear such
legends, if any, in each case as provided by and subject to the terms of any
agreement pursuant to which any such Rights may hereafter be issued, as in
effect at the time of such conversion. Notwithstanding anything else to the
contrary in this Article 11, there shall not be any adjustment to the
conversion privilege or Conversion Rate as a result of (i) the distribution of
separate certificates representing Rights, (ii) the occurrence of certain
events entitling holders of Rights to receive, upon exercise thereof, Common
Stock of the Issuer or capital stock of another corporation or (iii) the
exercise of Rights in accordance with the agreement pursuant to which such
Rights may hereafter be issued.
ARTICLE 12
SUBORDINATION
Section 12.01 Agreement to Subordinate.
The Issuer agrees, and each Securityholder by accepting a Security
consents and agrees, that the Indebtedness evidenced by the Securities is
subordinated in right of payment, to the extent and in the manner provided in
this Article, to the prior payment in full of all Senior Indebtedness, and that
the subordination is for the benefit of the holders of Senior Indebtedness each
of whom is entitled to enforce the rights of a holder of Senior Indebtedness
hereunder without any notice or act of acceptance hereof or reliance hereon.
Section 12.02 Certain Definitions.
"Claim" shall mean any and all rights to payment under or in respect
of any Security, this Indenture or the Intercreditor Agreement or any related
agreements or arrangements, all rights, remedies, demands, causes of action and
claims of every type and description at any time held or asserted by, or
arising in favor of, any Securityholder against the Issuer or any of its
Subsidiaries or Affiliates, or any of them or any of their assets, on account
of any breach of any promise,
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obligation, agreement, indemnity, representation, warrant or covenant in a
Security, this Indenture or the Intercreditor Agreement or any related
agreements or arrangements or in any manner arising out of, or relating to, the
offer, sale or purchase of a Security or the transactions contemplated by this
Indenture or by related agreements or the performance or nonperformance or the
payment or nonpayment thereof, including without limitation, in the case of
each of the foregoing, (a) any claim which is a substitute for, or is the
equivalent of, any of the foregoing, (b) any claim whether based on contract,
tort, duty imposed by law or any other theory, legal or equitable and whether
for rescission, indemnification, contribution or damages and (c) any judgment
with respect thereto.
"Payment in full" (together with any correlative phrases, e.g., "paid
in full" and "pay in full") means payment in full thereof in cash.
"Representative" means the indenture trustee or other trustee, agent
or representative for any Senior Indebtedness.
Section 12.03 Liquidation; Dissolution; Bankruptcy.
(a) Upon any payment or distribution of assets of any kind or
character, whether in cash, property or securities, to creditors in any
Insolvency or Liquidation Proceeding with respect to the Issuer, all amounts
due or to become due under or with respect to all Senior Indebtedness shall
first be paid in full, before any payment is made on account of the Securities,
except that Securityholders may receive Junior Securities. Upon the occurrence
of any such Insolvency or Liquidation Proceeding, any payment or distribution
of assets of the Issuer of any kind or character, whether in cash, property or
securities, to which the Securityholders or the Trustee would be entitled, but
for the provisions hereof, shall be paid by the Issuer or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making such
payment or distribution, or by the Securityholders or by the Trustee if
received by them, directly to the holders of Senior Indebtedness (pro rata to
such holders on the basis of the principal or equivalent amounts of Senior
Indebtedness held by such holders) or their Representative or Representatives,
as their interests may appear, for application to the payment of Senior
Indebtedness remaining unpaid until all such Senior Indebtedness has been paid
in full, after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of Senior Indebtedness.
(b) For purposes of this Article, the words "cash, property or
securities" shall not be deemed to include Junior Securities. The
consolidation of the Issuer with, or the merger of the Issuer with or into,
another entity or the liquidation or dissolution of the Issuer following the
conveyance or transfer of its property as an entirety, or substantially as an
entirety, to another person upon the terms and conditions provided in Article 5
shall not be deemed a dissolution, winding-up, liquidation or reorganization
for the purposes of this Section if such other entity shall, as part of such
consolidation, merger, conveyance or transfer, comply with any applicable
conditions stated in Article 5.
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Section 12.04 Default on Senior Indebtedness.
(a) In the event of and during the continuation of any default in
the payment of principal of (or premium, if any) or interest on any Senior
Indebtedness, or any Obligation owing from time to time under or in respect of
Senior Indebtedness, or in the event that any Event of Default (other than a
payment default) with respect to any Senior Indebtedness shall have occurred
and be continuing and shall have resulted in such Senior Indebtedness becoming
or being declared due and payable prior to the date on which it would otherwise
have become due and payable, or (b) if any Event of Default other than as
described in clause (a) above with respect to any Senior Indebtedness shall
have occurred and be continuing permitting the holders of such Senior
Indebtedness (or their Representative or Representatives) to declare such
Senior Indebtedness due and payable prior to the date on which it would
otherwise have become due and payable, then no payment shall be made by or on
behalf of the Issuer on account of the Securities (x) in case of any payment or
nonpayment Event of Default specified in (a) unless and until all such Events
of Default shall have been cured or waived in writing in accordance with the
instruments governing such Senior Indebtedness or such acceleration shall have
been rescinded or annulled, or (y) in case of any nonpayment Event of Default
specified in (b), during the period (a "Payment Blockage Period") commencing on
the date the Issuer and the Trustee receive written notice (a "Payment Blockage
Notice") of such Event of Default (which notice shall be binding on the Trustee
and the Securityholders as to the occurrence of such an Event of Default) from
the trustee under the Senior Note Indenture (or other holders of Senior
Indebtedness or their Representative or Representatives) and ending, subject to
the following sentence, on the earliest of (A) 179 days after such date, (B)
the date, if any, on which such Senior Indebtedness to which such default
relates is paid in full or such default (as well as any other defaults with
respect to such Senior Indebtedness of the type specified in (b) above) is
cured or waived in writing in accordance with the instruments governing such
Senior Indebtedness by the holders of such Senior Indebtedness and (C) the date
on which the Trustee receives written notice from the trustee under the Senior
Note Indenture (or other holders of Senior Indebtedness or their Representative
or Representatives), as the case may be, terminating the Payment Blockage
Period. During any consecutive 360-day period, successive or multiple Payment
Blockage Notices may be given, provided that, anything herein to the contrary
notwithstanding, the aggregate of all Payment Blockage Periods shall not exceed
179 days and there shall be a period of at least 181 consecutive days in each
consecutive 360-day period when no Payment Blockage Period is in effect. For
all purposes of this Section 12.04, no Event of Default which existed or was
continuing with respect to the Senior Indebtedness with respect to which notice
commencing a Payment Blockage Period was given on the date such Payment
Blockage Period commenced shall be or be made the basis for the commencement of
any subsequent Payment Blockage Period unless such Event of Default is cured or
waived for a period of not less than 90 consecutive days (it being acknowledged
that any action after the date of commencement of such Payment Blockage Period
and any breach of any financial covenant for a period commencing after the date
of commencement of such Payment Blockage Period that, in either case, gives
rise to an Event of Default pursuant to any provision under which an Event of
Default previously existed or was continuing shall constitute a new Event of
Default for this purpose and may form the basis of a subsequent Payment
Blockage Period).
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Section 12.05 Acceleration of Securities.
If payment of the Securities is accelerated because of an Event of
Default, the Issuer shall promptly notify holders of Senior Indebtedness of the
acceleration.
Section 12.06 When Distribution Must Be Paid Over.
In the event that the Trustee or any Securityholder receives any
payment of any Obligations with respect to the Securities at a time when such
payment is prohibited by this Article 12, such payment shall be held by the
Trustee or such Securityholder in trust for the benefit of, and shall be paid
forthwith over and delivered to, the Collateral Agent for the benefit of the
holders of Senior Indebtedness as their interest may appear or their
Representative, for application to the payment of all Obligations with respect
to Senior Indebtedness remaining unpaid to the extent necessary to pay such
Obligations in full in accordance with their terms, after giving effect to any
concurrent payment or distribution to or for the holders of Senior
Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article, and no implied covenants or obligations
with respect to the holders of Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness, and shall not be liable
to any such holders if the Trustee shall pay over or distribute to or on behalf
of Securityholders or the Issuer or any other person money or assets to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article,
except if such payment is made at a time when a Responsible Officer has actual
knowledge that it is prohibited by the terms of this Article.
Section 12.07 Notice by the Issuer.
The Issuer shall promptly notify the Trustee and the Paying Agent of
any facts known to the Issuer, as the case may be, that would cause a payment
of any Obligations with respect to the Issuer to violate this Article or the
Intercreditor Agreement, but failure to give such notice shall not affect the
subordination of the Securities to the Senior Indebtedness provided in this
Article.
Section 12.08 Subrogation.
After all Senior Indebtedness is paid in full and until the Securities
are paid in full, Securityholders shall be subrogated (equally and ratably with
all other Indebtedness pari passu with the Securities) to the rights of holders
of Senior Indebtedness to receive distributions applicable to Senior
Indebtedness to the extent that distributions otherwise payable to the
Securityholders have been applied to the payment of Senior Indebtedness. A
distribution made under this Article to holders of Senior Indebtedness which
otherwise would have been made to Securityholders is not, as between the Issuer
and Securityholders, a payment by the Issuer on the Senior Indebtedness.
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Section 12.09 Relative Rights.
This Article and the Intercreditor Agreement define the relative
rights of Securityholders and holders of Senior Indebtedness. Nothing in this
Indenture shall:
(1) impair, as between the Issuer and Securityholders,
the obligations of the Issuer, which are absolute and unconditional,
to pay principal of and interest on the Securities in accordance with
their terms;
(2) affect the relative rights of Securityholders and
creditors of the Issuer other than their rights in relation to holders
of Senior Indebtedness; or
(3) prevent the Trustee or any Securityholder from
exercising its available remedies upon a Default or Event of Default,
subject to the rights of holders and owners of Senior Indebtedness to
receive distributions and payments otherwise payable to
Securityholders.
If the Issuer fails because of this Article or the Intercreditor
Agreement to pay principal of or interest on a Security on the due date, the
failure is still a Default or Event of Default.
Section 12.10 Subordination May Not Be Impaired by the Issuer.
No right of any holder of Senior Indebtedness to enforce the
subordination as provided herein and in the Intercreditor Agreement shall at
any time in any way be prejudiced or impaired by any act or failure to act on
the part of the Issuer or by any noncompliance by the Issuer with the terms,
provisions and covenants of this Indenture or the Securities or any other
agreement regardless of any knowledge thereof which any such holder may have or
be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness or any of them may, at any time and from
time to time, without the consent of or notice to the Securityholders, without
incurring any liabilities to any Securityholder and without impairing or
releasing the subordination and other benefits provided in this Indenture or
the obligations of the Securityholders to the holders of Senior Indebtedness,
even if any right of reimbursement or subrogation or other right or remedy of
any holder of Securities is affected, impaired or extinguished thereby, do any
one or more of the following:
(1) change the manner, place or terms of payment or
change or extend the time of payment of, or renew, exchange, amend or
alter, the terms of any Senior Indebtedness, any security therefor or
Guarantee thereof or any liability of any obligor thereon to such
holder, or any liability incurred directly or indirectly in respect
thereof or otherwise amend, renew, exchange, extend, modify, increase
or supplement in any manner any Senior Indebtedness or any instrument
evidencing or guaranteeing or securing the same or any agreement under
which Senior Indebtedness is outstanding;
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(2) sell, exchange, release, surrender, realize upon,
enforce or otherwise deal with in any manner and in any order any
property pledged, mortgaged or otherwise securing Senior Indebtedness
or any liability of any obligor thereon, to such holder, or any
liability incurred directly or indirectly in respect thereof;
(3) settle or compromise any Senior Indebtedness or any
other liability of any obligor of the Senior Indebtedness to such
holder or any security therefor or any liability incurred directly or
indirectly in respect thereof and apply any sums by whomsoever paid
and however realized to any liability (including, without limitation,
Senior Indebtedness) in any manner or order; and
(4) fail to take or to record or otherwise perfect, for
any reason or for no reason, any lien or security interest securing
Senior Indebtedness by whomsoever granted, exercise or delay in or
refrain from exercising any right or remedy against any obligor or any
other person, elect any remedy and otherwise deal freely with any
obligor and any security for the Senior Indebtedness or any liability
of any obligor to such holder or any liability incurred directly or
indirectly in respect thereof.
Section 12.11 Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of
Senior Indebtedness, the distribution may be made and the notice given to their
Representative or Representatives.
Upon any payment or distribution of assets of the Issuer referred to
in this Article, the Trustee and the Securityholders shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction or upon
any certificate of such Representative or of the liquidating trustee or agent
or other person making any distribution to the Trustee or to the
Securityholders for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of the Senior Indebtedness and
other Indebtedness of the Issuer, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
Section 12.12 Rights of Trustee and Paying Agent.
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 or
distribution by the Trustee, or the taking of any action by the Trustee, and
the Trustee or Paying Agent may continue to make payments on the Securities
unless a Responsible Officer shall have received at its Corporate Trust Office
at least three Business Days prior to the date of such payment written notice
of facts that would cause the payment of any Obligations with respect to the
Securities to violate this Article. Only the Issuer, the Collateral Agent, a
Representative or a holder of an issue of Senior Indebtedness that has no
Representative may give the notice. Nothing in this Article shall apply to
amounts due to, or impair the claims of, or payments to, the Trustee under or
pursuant to Section 7.07 hereof.
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The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights.
Section 12.13 Authorization to Effect Subordination.
Each Securityholder by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article, and
appoints the Trustee his attorney-in-fact for any and all such purposes,
including, without limitation. the timely filing of a claim for the unpaid
balance of the Security held by such Securityholder in the form required in any
Insolvency or Liquidation Proceeding and causing such claim to be approved. If
a proper claim or proof of debt in the form required in such proceeding is not
filed prior to 30 days before the expiration of the time to file such claims or
proofs, then, so long as any Senior Indebtedness is committed or outstanding
the holders of Senior Indebtedness are hereby authorized, and shall have the
right (without any duty), to file any appropriate claim for and on behalf of
such holders of the Securities.
Section 12.14 Payment.
A payment on account of or with respect to any Security shall include,
without limitation, any direct or indirect payment of principal of (and
premium, if any) and interest with respect to or in connection with any
mandatory or optional redemption or sinking fund provisions, any direct or
indirect payment payable by reason of any other Indebtedness or obligation
being subordinated to the Securities, and any direct or indirect payment or
recovery on any Claim as a Securityholder relating to or arising out of this
Indenture or any Security, or the transactions contemplated hereby or referred
to herein.
ARTICLE 13
MISCELLANEOUS
Section 13.01 Trust Indenture Act Controls.
In the event this Indenture is qualified under the TIA, and any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by TIA Section 318(c), the imposed duties shall control.
Section 13.2 Notices.
Any notice or communication by the Issuer or the Trustee to the others
is duly given if in writing and delivered in person or mailed by first-class
mail (registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the other's address:
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<PAGE> 79
If to the Issuer:
Huntway Partners, L.P.
25129 The Old Road
Suite 322
Newhall, California 91381
Attention: Warren Nelson
Telecopier No.: (805) 286-1588
With a copy to:
Kirkland & Ellis
200 E. Randolph Drive
Chicago, Illinois 60601
Attention: Brian D. Hogan, Esq.
Telecopier No.: (312) 861-2200
If to the Trustee:
State Street Bank and Trust Company
Corporate Trust Department
Two International Place, 4th Floor
Boston, Massachusetts 02110
Attention: Susan Freedman
Telecopier No.: (617) 664-5371
The Issuer or the Trustee by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to
Securityholders) shall be deemed to have been duly given: at the time delivered
by hand, if personally delivered; five Business Days after being deposited in
the mail, postage prepaid, if mailed; when answered back, if telexed; when
receipt acknowledged, if telecopied; and the next Business Day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next day
delivery.
Any notice or communication to a Securityholder shall be mailed by
first-class mail, certified or registered. return receipt requested, to his
address shown on the register kept by the Registrar. Failure to mail a notice
or communication to a Securityholder or any defect in it shall not affect its
sufficiency with respect to other Securityholders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Issuer mails a notice or communication to the Securityholders,
it shall mail a copy to the Trustee and each Agent at the same time.
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Section 13.03 Communication by Securityholders with Other Securityholder.
In the event this Indenture is qualified under the TIA, (i)
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities and (ii) the Issuer, the Trustee, the Registrar and anyone else
shall have the protection of TIA Section 312(c).
Section 13.04 Certificate and Opinion as to Conditions Precedent.
In the event this Indenture is qualified under the TIA, upon any
request or application by the Issuer to the Trustee to take any action under
this Indenture or the Intercreditor Agreement, the Issuer shall furnish to the
Trustee:
(1) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which shall include the statements set
forth in Section 13.05) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee (which shall include the statements set
forth in Section 13.05) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been complied with.
Section 13.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall include:
(1) a statement that the person making such certificate
or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with, provided,
however, that with respect to matters of fact, an Opinion of Counsel may rely
upon an Officers' Certificate or a certificate of a public official.
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<PAGE> 81
Section 13.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
Section 13.07 Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in The City of New York, in the city in which the Corporate Trust
Office of the Trustee is located or at a place of payment are authorized or
obligated by law, regulation or executive order to remain closed. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that
place on the next succeeding day that is not a Legal Holiday, and no interest
shall accrue for the intervening period.
Section 13.08 No Recourse against Others.
No member, manager, shareholder, interest holder, partner, officer,
director, employee, affiliate or agent of the Issuer or of a General Partner
(as defined in the Huntway Partnership Agreement), as such, shall have any
liability for any obligations of the Issuer under the Securities, this
Indenture, the Collateral Documents or the Intercreditor Agreement or for any
claim based on, in respect of or by reason of such obligations, under the
Delaware Revised Uniform Limited Partnership Act or otherwise. Each
Securityholder, by accepting a Security, waives and releases all such
liability. The waiver and release shall be part of the consideration for the
issuance of the Securities. Notwithstanding the foregoing, nothing in this
provision shall be construed as a waiver or release of any claims under the
federal securities laws.
Section 13.09 Duplicate Originals.
The parties may sign any number of copies of this Indenture. One
signed copy is enough to prove this Indenture.
Section 13.10 Governing Law.
The internal law of the State of New York shall govern and be used to
construe this Indenture and the Securities.
Section 13.11 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Issuer or its Subsidiaries. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
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<PAGE> 82
Section 13.12 Successors.
All agreements of the Issuer in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture
shall bind its successor.
Section 13.13 Severability.
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 13.14 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 13.15 Table of Contents, Headings, etc.
The Table of Contents and Headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to
be considered a part hereof and shall in no way modify or restrict any of the
terms or provisions hereof.
Section 13.16 Special Rights of Certain Securityholders
The initial purchasers of the Securities are parties to an Exchange
and Purchase Agreement with the Issuer dated as of October 31, 1997 (the
"Exchange and Purchase Agreement"). Pursuant to such Exchange Agreement, such
initial purchasers are the beneficiaries of: (i) additional covenants and
agreements the breach of which could give rise to a declaration by such initial
purchasers that the unpaid principal of and any accrued interest on the
Securities held by them shall be due and payable, and (ii) the right under
certain circumstances to restrict the Issuer's exercise of its right to effect
redemptions under Sections 3.08(b) and 3.09. Each Securityholder (other than a
Securityholder that is one of such initial purchasers), by acceptance of a
Security, acknowledges that such additional covenants, agreements and right are
for the sole benefit of such initial purchasers.
[Signature Page Follows]
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<PAGE> 83
SIGNATURES
Dated as of October 31, 1997 HUNTWAY PARTNERS, L.P., as Issuer
By: /s/ Juan Y. Forster
-------------------
By: /s/ Warren J. Nelson
--------------------
Attest:
_____________________________________
Dated as of October 31, 1997 STATE STREET
BANK AND TRUST COMPANY, a
Massachusetts bank and trust
company, as Trustee
By: /s/ Lynda A. Vogel
------------------
By: /s/ Susan Freedman
------------------
Attest:
_____________________________________
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<PAGE> 84
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On this 31st day of October, 1997, before me appeared
Lynda A. Vogel, who, being by me duly sworn did say that (s)he is the Senior
Vice President of STATE STREET BANK AND TRUST COMPANY, a Massachusetts bank and
trust company, and that the seal affixed to said instrument is the corporate
seal of said company, and that said instrument was signed and sealed on behalf
of said company by authority of its board of directors, and said Senior Vice
President acknowledged said instrument to be the free act and deed as Trustee
as aforesaid.
/s/ Tina L. Martinez
--------------------------------------
Notary Public
STATE OF MASSACHUSETTS )
) ss.
COUNTY OF SUFFOLK )
On this 31st day of October, 1997, before me appeared
Susan Freedman to me personally known, who, being by me duly sworn did
say that (s)he is a Vice President of STATE STREET BANK AND TRUST COMPANY, a
Massachusetts bank and trust company, and that the seal affixed to said
instrument is the corporate seal of said company, and that said instrument was
signed and sealed on behalf of said company by authority of its board of
directors, and said Susan Freedman acknowledged said instrument to be the free
act and deed as Trustee as aforesaid.
/s/ John Corrigan
--------------------------------------
Notary Public
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<PAGE> 85
EXHIBIT A
(Face of Security)
9 1/4% SENIOR SUBORDINATED SECURED CONVERTIBLE NOTE
DUE 2007
No. _____
$_______________
CUSIP: 447300 AA 2 HUNTWAY PARTNERS, L.P.
as Obligor,
promises to pay to ________________________ or registered assigns, the
principal sum of _________________________ Dollars on October 15, 2007.
Interest Payment Dates: June 30 and December 31; and October 15, 2007.
Record Dates: June 15 and December 15 and, in the case of the October 15,
2007 Interest Payment Date, October 1, 2007 (in each case, whether or not a
Business Day).
This Security is convertible as specified on the other side of this Security.
Additional provisions of this Security are set forth on the other side of this
Security.
Dated: October __, 1997
HUNTWAY PARTNERS, L.P.
By:___________________
By:___________________
Trustee's Certificate of Authentication:
This is one of the Securities referred to
in the within-mentioned Indenture:
STATE STREET BANK AND TRUST COMPANY,
a Massachusetts bank and trust company, as Trustee
By__________________________________________
Authorized Signature
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<PAGE> 86
(Back of Security)
9 1/4% SENIOR SUBORDINATED SECURED CONVERTIBLE NOTE
DUE 2007
1. Interest. Huntway Partners, L.P., a Delaware limited partnership, as
obligor (the "Issuer"), promises to pay interest on the principal amount of
this Security at the rate and in the manner specified below.
The Issuer shall pay in cash interest on the principal amount of this
Security at the rate per annum of 9 1/4%. The Issuer will pay interest
semi-annually in arrears on June 30 and December 31 of each year, commencing
June 30, 1998, and on October 15, 2007 or if any such day is not a Business Day
on the next succeeding Business Day (each an "Interest Payment Date"), to
Securityholders of record at the close of business on the June 15 or December
15 next preceding the Interest Payment Date or, in the case of interest to be
paid on October 15, 2007, October 1, 2007.
Interest will be computed on the basis of a 360-day year consisting of
twelve 30-day months. Interest shall accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of the
original issuance of the Securities. To the extent lawful, the Issuer shall
pay interest on overdue principal at the rate of 2% per annum in excess of the
then applicable interest rate on the Securities; the Issuer shall pay interest
on overdue installments of interest (without regard to any applicable grace
periods) at the same rate to the extent lawful.
2. Method of Payment. The Issuer will pay interest on the Securities
(except defaulted interest) to the persons who are registered Securityholders
at the close of business on the record date next preceding the Interest Payment
Date, even if such Securities are canceled after such record date and on or
before such Interest Payment Date. The Securityholder must surrender this
Security to a Paying Agent to collect principal payments. The Issuer will pay
principal and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts. The Issuer,
however, may pay principal and interest by check payable in such money. The
Issuer may mail an interest check to a Securityholder's registered address.
3. Paying Agent, Conversion Agent and Registrar. Initially, the Issuer
will act as Paying Agent. The Issuer may change any Paying Agent, Conversion
Agent, Registrar or co-registrar without notice to any Securityholder. The
Issuer or any of its subsidiaries may act in any such capacity.
4. Indenture. The Issuer issued the Securities under an Indenture dated
as of October 15, 1997 (the "Indenture") among the Issuer, as obligor, and the
Trustee. The terms of the Securities include those stated in the Indenture
(including certain provisions of the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb) (the "TIA") as in effect on the date of the Indenture)
and, in the event the Indenture is qualified under the TIA, those made part of
the Indenture by reference to the TIA as in effect at the time of such
qualification. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and such Act for a statement of
such terms. The terms of the Indenture shall govern any inconsistencies
between the Indenture and the Securities. Terms
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<PAGE> 87
not otherwise defined herein shall have the meanings assigned in the Indenture.
The Securities are limited to $21,750,000 in aggregate principal amount.
5. Optional Redemptions.
(a) Optional Redemption for Cash - Trading Condition Satisfied.
At any time or from time to time after October 15, 2000, in the event the
Trading Condition is satisfied, the Issuer may (provided that the Issuer
furnishes to the Trustee the Officers' Certificate provided for in Section 3.01
of the Indenture within five days thereafter) redeem all or any of the
Securities at the redemption prices (expressed as percentages of the principal
amount) set forth below, plus accrued interest to the redemption date, if
redeemed during the 12-month period beginning October 15 of the years indicated
below:
Year %
---- -------
2000 . . . . . . . . . . . . . . . 104.625
2001 . . . . . . . . . . . . . . . 103.854
2002 . . . . . . . . . . . . . . . 103.083
2003 . . . . . . . . . . . . . . . 102.312
2004 . . . . . . . . . . . . . . . 101.541
2005 . . . . . . . . . . . . . . . 100.770
2006 and thereafter . . . . . . . . 100.000
(b) Other Optional Redemption for Cash. Subject to the provisions
of Section 13.16 of the Indenture, at any time or from time to time after
October 15, 2002, the Issuer may redeem all or any of the Securities at the
redemption prices (expressed as percentages of the principal amount) set forth
below, plus accrued interest to the redemption date, if redeemed during the
12-month period beginning October 15 of the years indicated below:
Year %
---- -------
2002 . . . . . . . . . . . . . . . 110.000
2003 . . . . . . . . . . . . . . . 107.500
2004 . . . . . . . . . . . . . . . 105.000
2005 . . . . . . . . . . . . . . . 102.500
2006 and thereafter . . . . . . . . 100.000
(c) Optional Redemption for Common Stock. Subject to the
provisions of Section 13.16 of the Indenture, at any time or from time to time
after October 15, 2000, in the event the Trading Condition is satisfied, the
Issuer may (provided that the Issuer furnishes to the Trustee the Officers'
Certificate provided for in Section 3.01 of the Indenture within five days
thereafter) redeem all or any portion of the Securities in exchange for the
number of shares of Common Stock (and cash in lieu of fractional shares)
issuable upon conversion of such Securities at the Conversion Rate then in
effect for the Securities pursuant to Article 11 of the Indenture.
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<PAGE> 88
Notice of redemption will be mailed at least 30 days but not more than 60 days
before the redemption date to each Securityholder of Securities to be redeemed
at its registered address. Securities may be redeemed in part but only in
whole multiples of $1,000, unless all of the Securities held by a
Securityholder are to be redeemed. On and after the redemption date, interest
ceases to accrue on Securities or portions of them called for redemption.
6. Mandatory Redemption. Subject to the Issuer's obligation to make an
offer to repurchase Securities under certain circumstances pursuant to Section
4.14 of the Indenture (as described in paragraph 7 below), the Issuer has no
mandatory or sinking fund obligations with respect to the Securities.
7. Redemption or Repurchase at Option of Securityholder. If there is a
Change of Control, the Issuer will be required, subject to certain limitations
as set forth in the Indenture, to offer to purchase all Securities at 101% of
the principal amount thereof, plus accrued interest to the date of purchase.
Securityholders that are subject to an offer to purchase will receive an offer
to purchase from the Issuer prior to any related purchase date, and may elect
to have such Securities purchased by completing the form entitled "Option of
Securityholder to Elect Purchase" appearing on this reverse side of this
Security.
8. Conversion
Subject to the next two succeeding sentences, a Securityholder of a
Security may convert it into Common Stock at any time after January 15, 1998
and prior to October 15, 2007. If the Security is called for redemption, the
Securityholder may convert it at any time before the close of business on the
redemption date.
The initial Conversion Rate is 666.667 shares of Common Stock per
$1,000 Principal Amount, subject to adjustment in certain events described in
the Indenture. The Issuer will deliver cash or a check in lieu of any
fractional share of Common Stock.
To convert a Security a Securityholder must (1) complete and manually
sign the conversion notice on the back of the Security (or complete and
manually sign a facsimile of such notice) and deliver such notice to the
Conversion Agent, (2) surrender the Security to the Conversion Agent, (3)
furnish appropriate endorsements and transfer documents if required by the
Conversion Agent, the Issuer or the Trustee and (4) if required by Section
11.04 of the Indenture, pay all transfer or similar taxes.
A Securityholder may convert a portion of a Security if the Principal
Amount of such portion is $1,000 or an integral multiple of $1,000. No payment
or adjustment will be made for dividends on the Common Stock except as provided
in the Indenture.
The Conversion Rate will be adjusted for dividends or distributions on
Common Stock payable in Common Stock or other capital stock; subdivisions,
combinations or certain reclassifications of Common Stock; distributions to all
holders of Common Stock of rights to purchase Common Stock at a price per share
less than the Quoted Price at the Time of
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<PAGE> 89
Determination; and distributions to such holders of assets or debt securities
of the Issuer or certain rights to purchase securities of the Issuer (excluding
certain cash dividends or distributions). However, no adjustment need be made
if Securityholders are to participate in the transaction or in certain other
cases, as set forth in the Indenture. The Issuer from time to time may
voluntarily increase the Conversion Rate.
If the Issuer is party to a consolidation, merger or binding share
exchange or a transfer of all or substantially all of its assets, or upon
certain distributions described in the Indenture, the right to convert a
Security into Common Stock may be changed into a right to convert such Security
into securities, cash or other assets of the Issuer or another person.
Any Securities called for redemption, unless surrendered for
conversion before the close of business on the Redemption Date, may be deemed
to be purchased from the Securityholders of such Securities at an amount not
less than the Redemption Price, together with accrued interest, if any, to the
Redemption Date, by one or more investment bankers or other purchasers who may
agree with the Issuer to purchase such Securities from the Securityholders, to
convert them into Common Stock of the Issuer and to make payment for such
Securities to the Trustee in trust for such Securityholders.
9. Subordination. The Securities are subordinated to Senior Indebtedness,
which means the principal of the Senior Notes, the Letter of Credit
Obligations, 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 Notes, the Senior Note Indenture
and the Letter of Credit Agreement, 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 Notes, the trustee under the Senior Note Indenture or the
holders of the Letter of Credit Agreement Obligations are entitled to
reimbursement under the terms of the Senior Notes, the Senior Note Indenture or
the Letter of Credit Agreement), (ii) any refundings, renewals or extensions of
any Indebtedness or other obligation described in clause (i) above, provided
that the principal amount of such Indebtedness shall not exceed the principal
amount of Indebtedness, and any unfunded or unused commitment to extend credit
(including commitments to issue letters of credit), so refunded, renewed or
extended and (iii) all expenses, indemnifications and attorneys' fees for which
the Issuer is now or hereafter becomes liable to pay to the trustee under the
Senior Note Indenture or any holder of Senior Notes or Letter of Credit
Agreement Obligations. To the extent provided in the Indenture, Senior
Indebtedness must be paid before the Securities may be paid. The Issuer
agrees, and each Securityholder by accepting a Security consents and agrees, to
the subordination provided in the Indenture and authorizes the Trustee to give
it effect.
10. Denominations, Transfer, Exchange. The Securities are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Securities may be registered and Securities may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Securityholder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The
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<PAGE> 90
Registrar need not exchange or register the transfer of any Security or portion
of a Security selected for redemption. Also, it need not exchange or register
the transfer of any Securities for a period of 15 days before a selection of
Securities to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
11. Persons Deemed Owners. Prior to due presentment to the Trustee for
registration of the transfer of this Security, the Trustee, any Agent and the
Issuer may deem and treat the person in whose name this Security is registered
as its absolute owner for the purpose of receiving payment of principal of and
interest on this Security and for all other purposes whatsoever, whether or not
this Security is overdue, and neither the Trustee, any Agent nor the Issuer
shall be affected by notice to the contrary. The registered holder of a
Security shall be treated as its owner for all purposes.
12. Amendments and Waivers. Subject to certain exceptions, the Indenture
and the Securities may be amended with the consent of the Securityholders of at
least a majority in principal amount of the then outstanding Securities, and
any existing default (except certain payment defaults) may be waived with the
consent of the Securityholders of a majority in principal amount of the then
outstanding Securities. Without the consent of any Securityholder, the
Indenture and the Securities may be amended or supplemented (i) to cure any
ambiguity, defect or inconsistency, provided such amendment or supplement does
not adversely affect the rights under the Indenture of any Securityholder, (ii)
to provide for assumption of the Issuer's obligations to Securityholders, (iii)
to provide for uncertificated Securities, (iv) to comply with the requirements
of the SEC in order to effect or maintain qualification of the Indenture under
the TIA, provided such amendment or supplement does not adversely affect the
rights under Section 13.16 of the Indenture of any Securityholder, (v) to
execute and deliver any documents necessary or appropriate to release Liens on
Collateral as permitted by the Indenture, or to make any change that does not
adversely affect the rights under the Indenture of any Securityholder.
13. Defaults and Remedies. Events of Default under the Indenture include
in summary form: (i) default for 30 days in payment of interest on the
Securities; (ii) default in payment of principal on the Securities; (iii)
failure to comply with Section 4.07, 4.09 or 4.14 of the Indenture, or fails
within 29 Business Days after any Change of Control Date to effect the
repayments and/or obtain the consents contemplated in the first paragraph of
Section 4.14, that is not cured or waived within 10 days after notice; (iv) a
default in the observance or performance of any other agreements of the Issuer
in the Securities or the Indenture, or a default in any material respect of
agreements of the Issuer contained in any Collateral Document or the
Intercreditor Agreement, that continues for 30 days after notice; (v) defaults
under instruments under which certain other Indebtedness is issued or secured,
whether such Indebtedness now exists, or is created hereafter, which default
(a) in the case of a failure to make a payment on any such Indebtedness, (w)
shall permit the acceleration of the maturity of such Indebtedness, (x) shall
occur with respect to Indebtedness in a principal amount of at least
$2,000,000, (y) in the case of any default with respect to any interest payment
Obligation on Indebtedness shall occur with respect to interest payment
Obligations in an aggregate amount of at least $500,000, and (z) which payment
default shall not have been cured within 30 days after the expiration of any
grace period as provided in such Indebtedness on the date of such default, or
(b) in the case of any default other than a payment default referred to in
clause (a), has resulted in the acceleration of the maturity of such
Indebtedness prior to its express maturity and the principal
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<PAGE> 91
amount of such Indebtedness either (x) is at least $2,000,000 or (y), together
with the principal amount of any other such Indebtedness, the maturity of which
has been so accelerated or which has not been paid at maturity, aggregates
$2,000,000 or more; (vi) certain final judgments aggregating in excess of
$2,000,000 remain unstayed or undischarged for a period of 60 consecutive days
after their entry; (vii) certain events of bankruptcy or insolvency; (viii) any
representation or warranty of the Issuer in any Collateral Document with
respect to any material portion of the Collateral shall have been untrue in any
material respect when made and is not cured or waived within 30 days; and (ix)
any Collateral Document with respect to Collateral having a fair market value
in excess of $3,000,000 shall be held in any judicial proceeding to be
unenforceable or invalid or otherwise ceases to be in effect (except as
otherwise permitted by the Indenture, the Collateral Documents or the
Intercreditor Agreement), or the Issuer shall deny or disaffirm its obligations
under any Collateral Document, the Intercreditor Agreement or the Securities,
or the Securities fail to be secured by any theretofore perfected security
interests in the Collateral having a fair market value in excess of $3,000,000
(except as otherwise permitted by the Indenture, the Collateral Documents or
the Intercreditor Agreement).
If an Event of Default occurs and is continuing, the Trustee or the
Securityholders of at least 25% in principal amount of the then outstanding
Securities may declare all the Securities to be due and payable immediately if
no Senior Indebtedness is then outstanding (or, if there is any Senior
Indebtedness then outstanding, five Business Days after receipt by the Issuer
and the Representatives (as defined in Section 12.02 of the Indenture) of the
Senior Indebtedness of written notice of such declaration), except that in the
case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Securities become due and payable immediately
without further action or notice. Securityholders may not enforce the
Indenture or the Securities except as provided in the Indenture. The Trustee
may require indemnity satisfactory to it before it enforces the Indenture or
the Securities. Subject to certain limitations, Securityholders of a majority
in principal amount of the then outstanding Securities may direct the Trustee
in its exercise of any trust or power. The Trustee may withhold from
Securityholders notice of any continuing default (except a default in payment
of principal or interest) if it determines that withholding notice is in the
interests of the Securityholders. The Issuer must furnish an annual compliance
certificate to the Trustee.
14. Trustee Dealings with Issuer. The Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Issuer or its Affiliates, and may otherwise deal with
the Issuer or its Affiliates, as if it were not Trustee.
15. No Recourse Against Others. No member, manager, shareholder, interest
holder, partner, officer, director, employee, affiliate or agent of the Issuer
or of a General Partner (as defined in the Huntway Partnership Agreement), as
such, shall have any liability for any obligations of the Issuer under the
Securities, this Indenture, the Collateral Documents or the Intercreditor
Agreement or for any claim based on, in respect of or by reason of such
obligations, under the Delaware Revised Uniform Limited Partnership Act or
otherwise. Each Securityholder, by accepting a Security, waives and releases
all such liability. The waiver and release is part of the consideration for
the issuance of the Securities. Notwithstanding the foregoing, nothing in this
provision shall be construed as a waiver or release of any claims under the
federal securities laws.
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<PAGE> 92
16. Authentication. This Security shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
17. Abbreviations. Customary abbreviations may be used in the name of a
Securityholder 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).
18. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuer has caused
CUSIP numbers to be printed on the Securities and has directed the Trustee to
use CUSIP numbers in notices of redemption as a convenience to Securityholders.
No representation is made as to the accuracy of such numbers either as printed
on the Securities or as contained in any notice of redemption and reliance may
be placed only on the other identification numbers placed thereon.
19. Collateral Documents and the Intercreditor Agreement. As provided in
the Indenture, the Collateral Documents and the Intercreditor Agreement, and
subject to certain limitations set forth therein, the Obligations of the Issuer
under the Indenture are secured by the Collateral as provided in the Collateral
Documents and the Intercreditor Agreement. Each Securityholder, by accepting a
Security, agrees to be bound to all the terms and provisions of the Collateral
Documents and the Intercreditor Agreement, as the same may be amended from time
to time. The Liens created under the Collateral Documents shall be released
upon the terms and subject to the conditions set forth in the Indenture, the
Collateral Documents and the Intercreditor Agreement.
20. Special Rights of Certain Securityholders. The initial purchasers of
the Securities are parties to an Exchange and Purchase Agreement with the
Issuer referred to in Section 13.16 of the Indenture. Pursuant to such
Exchange Agreement, such initial purchasers are the beneficiaries of: (i)
additional covenants and agreements the breach of which could give rise to a
declaration by such initial purchasers that the unpaid principal of and any
accrued interest on the Securities held by them shall be due and payable, and
(ii) the right under certain circumstances to restrict the Issuer's exercise of
its right to effect redemptions under Sections 3.08(b) and 3.09 of the
Indenture. Each Securityholder (other than a Securityholder that is one of
such initial purchasers), by acceptance of a Security, acknowledges that such
additional covenants, agreements and right are for the sole benefit of such
initial purchasers.
The Issuer will furnish to any Securityholder upon written request and
without charge a copy of the Indenture. Request may be made to:
Huntway Partners, L.P.
25129 The Old Road
Suite 322
Newhall, California 91381
Attention: Warren Nelson
A-8
<PAGE> 93
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign
and transfer this Security to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________ agent to transfer this Security on the
books of the Issuers. The agent may substitute another to act for him.
________________________________________________________________________________
Date:______________________
Your Signature:___________________________
(Sign exactly as your name
appears on the face of
this Security)
Signature Guarantee.*
________________________
* Your signature must be guaranteed by a commercial bank or
trust company located, or having a correspondent located, in The
City of New York or the city where the principal office of the
registrar is located or by a member of a national securities
exchange.
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<PAGE> 94
OPTION OF SECURITYHOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Security
purchased by the Issuers pursuant to Section 4.14 of the Indenture, state the
amount you elect to have purchased (if all, write "ALL"):
$_____________
Date:_______________
Your Signature:_______________________________
(Sign exactly as your name
appears on the face of this
Security)
Signature Guarantee.*
____________
* Your signature must be guaranteed by a commercial bank or trust
company located, or having a correspondent located, in The City of New
York or the city where the principal office of the registrar is
located or by a member of a national securities exchange.
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<PAGE> 95
CONVERSION NOTICE
If you want to elect to have all or any part of this Security
converted into Common Stock of the Issuer pursuant to Article 11 of the
Indenture, state the Principal Amount you elect to have converted (if all,
write "ALL"): $_____________
Date:________________
Your Signature:________________________________
(Sign exactly as your name
appears on the face of this
Security)
Signature Guarantee.*
________________
* Your signature must be guaranteed by a commercial bank or trust
company located, or having a correspondent located, in The City of New
York or the city where the principal office of the registrar is
located or by a member of a national securities exchange.
A-11
<PAGE> 1
Exhibit 10.1
SEQUENCING AND AMENDATORY AGREEMENT
Sequencing and Amendatory Agreement dated as of October 31, 1997 among
Huntway Partners, L.P., a Delaware limited partnership (the "Company"), Sunbelt
Refining Company, L.P. ("Sunbelt"), Lighthouse Investors, L.L.C., a Delaware
limited liability company ("Lighthouse"), B III Capital Partners, L.P., a
Delaware limited partnership ("B III"), Contrarian Capital Fund I, L.P., a
Delaware limited partnership ("Contrarian I"), Contrarian Capital Fund II,
L.P., a Delaware limited partnership ("Contrarian II"; each of Lighthouse, B
III, Contrarian I and Contrarian II being sometimes referred to individually as
an "Exchange Buyer" and, together with the Cash Buyers, the "Buyers"), Bankers
Trust Company ("BT") and Massachusetts Mutual Life Insurance Company ("Mass
Mutual"; BT and Mass Mutual being sometimes referred to individually as a
"Seller"), Mellon Bank, N.A., as trustee for First Plaza Group Trust
("Mellon"), Oppenheimer & Company., Inc., as agent for itself and certain
affiliated entities ("Oppenheimer") and for itself and as Agent for certain
affiliates as listed under the signature of Contrarian Capital Advisors, L.L.C.
on the signature page to this Agreement ("Oppenheimer, as Cash Buyer"), The IBM
Retirement Plan Trust ("IBM"), Lindner Growth Fund ("Lindner"), Madison
Dearborn Partners III and First Chicago Equity Corporation (the "Junior
Lenders"), United States Trust Company of New York, as Collateral Agent under
the Intercreditor Agreement referred to below (the "Collateral Agent"), State
Street Bank & Trust Company, as trustee under the Senior Subordinated Indenture
referred to below (the "Senior Subordinated Trustee"), and Fleet National Bank,
as trustee under the Senior Indenture referred to below (the "Senior Trustee").
Contrarian I, Contrarian II, IBM, Mellon, B III and Oppenheimer as Cash
Purchaser, as "Cash Buyers" under the Exchange Agreement referred to below are
sometimes referred to collectively as "Cash Buyers."
RECITALS
The Sellers and the Exchange Buyers are about to enter into a Securities
Purchase Agreement of even date herewith (the "Securities Purchase Agreement").
The Buyers and the Company are about to enter into an Exchange and
Purchase Agreement of even date herewith (the "Exchange Agreement"), and in
connection therewith they, Lindner and the Junior Lenders are about to enter
into a Registration Rights Agreement of even date herewith (the "Registration
Rights Agreement").
The Senior Subordinated Trustee and the Company are about to enter into an
Indenture dated as of October 15, 1997 (the "Senior Subordinated Indenture").
In connection with the entering into of such Agreements, the parties
hereto desire to amend and/or consent to deviations from the terms of certain
other documents and agreements, to confirm the sequencing of the entering into
and various actions under such Agreements and of such amendments and/or
consents, and to enter into certain other agreements.
<PAGE> 2
NOW THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
1. Sequencing. The parties hereto covenant and agree that the
following actions, amendments and/or consents are occurring substantially
simultaneously immediately following the execution and delivery of this
Agreement, but are nonetheless agreed to be occurring in the following order
regardless of the timing of the execution and delivery of the documents and
instruments related thereto:
(a) The waiver by each of the Sellers of interest accrued but u
npaid with respect to the Senior Notes (Other) (as defined in
the Senior Indenture referred to below) held by such Seller,
which waiver each such Seller hereby grants.
(b) The termination of the Registration Rights Agreement dated as
of December 12, 1996 (the "Existing Registration Rights
Agreement") among the Company, BT, Mass Mutual, Oppenheimer,
Mellon, Lindner and the Junior Lenders, to which termination
the Company, BT, Mass Mutual, Oppenheimer, Mellon, Lindner and
the Junior Lenders, as the holders of all the Registrable
Securities thereunder, hereby agree effective immediately
following the waiver granted under paragraph (a) above.
(c) The execution and delivery of the Securities Purchase
Agreement.
(d) The acquisition of the Securities (as such term is defined in
the Securities Purchase Agreement) by the Exchange Buyers from
the Sellers pursuant to the Securities Purchase Agreement,
including the payment of the purchase price for such
Securities by the Exchange Buyers to the Sellers.
(e) The consents, agreements and amendments set forth on Exhibit
A hereto to the Amended and Restated Collateralized Note
Indenture dated as of December 12, 1996 (the "Senior
Indenture") between the Company and the Senior Trustee, to
which consents, agreements and amendments the Company and BT,
Mellon, Oppenheimer, the Exchange Buyers and Lindner, as all
of the Holders under the Senior Indenture immediately
following the acquisition referred to in paragraph (d) above,
hereby agree effective immediately following such acquisition;
and the consents and amendments set forth on Exhibit B hereto
to the Amended and Restated Junior Subordinated Debenture
Indenture dated as of December 12, 1996 (the "Junior
Indenture") between the Company and IBJ Schroder Bank & Trust
Company, as trustee (the "Junior Trustee"), to which consents
and amendments the Company and the Junior Lenders, as all of
the Holders under the Junior Indenture hereby agree.
(f) The amendments set forth on Exhibit C hereto to the Letter of
Credit and Reimbursement Agreement dated as of June 22, 1993,
as amended by the First Amendment to Letter of Credit and
Reimbursement Agreement dated as of December 12, 1996 (the
"LOC Agreement") between the Company,
2
<PAGE> 3
Sunbelt and BT, to which amendments, the Company, Sunbelt and
BT, as all the parties to the LOC Agreement, hereby agree
effective immediately following the consents, agreements and
amendments referred to in paragraph (e) above.
(g) The amendments set forth on Exhibit D hereto to the Amended
and Restated Intercreditor and Collateral Trust Agreement
dated as of December 12, 1996 (the "Intercreditor Agreement")
among BT, as issuer of letters of credit under the LOC
Agreement, BT, Mass Mutual, Mellon, Oppenheimer, Lindner, the
Senior Trustee and the Collateral Agent, acknowledged by the
Company and Sunbelt, and the related agreements set forth on
Exhibit D hereto, to which amendments and agreements each of
BT, as such issuer of letters of credit, BT, Mellon,
Oppenheimer, Lindner, the Senior Trustee and the Collateral
Agent, as all of the parties to the Intercreditor Agreement
immediately prior to such amendments and agreements, and the
Company and Sunbelt, as acknowledgers of the Intercreditor
Agreement, and the Senior Subordinated Trustee and the
Exchange Buyers, as new parties to the Intercreditor Agreement
by virtue of such amendments and related agreements, hereby
agree effective immediately following the amendments referred
to in paragraph (f) above.
(h) The amendments set forth on Exhibit E hereto to the Amended
and Restated Collateral Accounts Security Agreement dated as
of December 12, 1996 (the "Collateral Accounts Agreement")
among the Company, Sunbelt, the Collateral Agent and BT, as
agent for the Collateral Agent, to which amendments each of
the Company, Sunbelt, the Collateral Agent and BT, all of the
parties to the Collateral Accounts Agreement immediately prior
to such amendments hereby agree effective immediately
following the amendments and related agreement referred to in
paragraph (g) above.
(i) The termination of the Unitholders Agreement dated as of
December 12, 1996 among the Company, BT, Mass Mutual,
Oppenheimer, Mellon, Lindner and the Junior Lenders, to which
termination the Company and the Exchange Buyers, Lindner and
the Junior Lenders, as all of the then Unitholders thereunder,
hereby agree effective immediately following the termination
referred to in paragraph (h) above.
(j) The consummation of the exchange, the purchase by the Cash
Buyers of the Notes (as such term is defined in the Exchange
Agreement) and the other transactions contemplated by the
Exchange Agreement, including, without limitation, the
execution and delivery by the Company, the Buyers, Lindner and
the Junior Lenders of the Registration Rights Agreement.
(k) Effective immediately following the consummation of the
transactions referred to in paragraph (j) above, the Cash
Buyers, as holders of the 9-1/4% Senior Subordinated Secured
Convertible Notes due 2007 issued by the Company under the
Senior Subordinated Indenture become parties to the
3
<PAGE> 4
Intercreditor Agreement, as to which each of BT, as issuer of
letters of credit, BT, Mellon, Oppenheimer, Lindner, the
Exchange Buyers, the Senior Trustee and the Collateral Agent,
as all of the parties to the Intercreditor Agreement
immediately following to the consummation of the transactions
referred to in paragraph (j) above, hereby agree.
2. Post-Closing Amendments. The Company, and BT, Mellon and Lindner, as
all of the Holders under the Senior Indenture immediately following the
transactions referred to in paragraph (k) above, hereby agree as soon as
reasonably practicable after the date hereof to amend the Senior Indenture with
respect to the matters set forth in Part I of Exhibit F hereto. The Company,
Sunbelt and BT, as all of the parties to the LOC Agreement, hereby agree as
soon as reasonably practicable after the date hereof to amend the LOC Agreement
set forth on Part II of Exhibit F hereto. The definitive documents evidencing
such amendments shall be prepared by counsel to BT (with the first draft
thereof delivered on or before November 10, 1997), shall contain such other
terms and provisions as shall be reasonably necessary to give force and effect
to the intent thereof and hereof and shall be in form and substance
satisfactory to the Company and BT. The definitive documents evidencing such
amendments shall become effective on or before November 30, 1997. Each of the
parties hereto agrees that failure of the definitive documents evidencing such
amendments to become effective not later than November 30, 1997 shall
constitute an Event of Default under the Senior Indenture and the LOC Agreement
and shall entitle BT to accelerate the obligations under such agreements.
3. Further Assurances. The parties hereto shall (at the Company's
expense), from time to time, execute and deliver to the Company or to such
party or parties as the Company may designate, any and all further instruments
as may be necessary or advisable to give full force and effect to the
provisions of this Agreement and the intent and purposes hereof. Without
limiting the generality of the foregoing, each of the parties hereto
acknowledges and agrees that (a) the signatures of BT, Mellon, Oppenheimer, the
Buyers and Lindner to this Agreement shall constitute a consent, by Act of such
parties pursuant to Section 104 of the Senior Indenture, to amend, modify
and/or supplement the Senior Indenture as specified in Exhibit A hereto; and
(b) the signatures of the Junior Lenders to this Agreement shall constitute a
consent, by Act of such parties pursuant to Section 104 of the Junior
Indenture, to amend, modify and/or supplement the Junior Indenture as specified
in Exhibit B hereto; and (c) each of the parties referred to in clauses (a) and
(b) above will (at the Company's expense) execute and deliver instruments or
documents evidencing such consents reasonably required in connection with the
Company and the Senior Trustee and the Junior Trustee entering into
supplemental indentures effecting such amendments, modifications and/or
supplements.
4. Representations and Warranties. Each of the parties hereto hereby
represents and warrants to the other parties hereto that the execution,
delivery and performance by it of this Agreement are within its corporate or
partnership power, as applicable, and have been duly authorized by all
necessary corporate or partnership action, as applicable, on the part of such
party, and that this Agreement is the legal, valid and binding obligation of
such party, enforceable against it in accordance with its terms. Each of the
BT, as issuer of Letters of Credit under the LOC Agreement, BT, Mass Mutual,
Mellon, Oppenheimer, and Lindner (a) hereby request the Collateral Agent to
execute and deliver this Agreement; and (b) certify to the Collateral Agent
that they
4
<PAGE> 5
constitute Directing Parties (as defined in the Intercreditor
Agreement) immediately prior to the amendments and agreements referred to in
paragraph 1(g) above.
5. Effect on Documents. Except as specifically amended or modified herein
and in the Exhibits hereto, the Senior Indenture, Junior Indenture,
Intercreditor Agreement, LOC Agreement, Collateral Accounts Agreement and other
Collateral Documents (as defined in the Intercreditor Agreement) shall remain
in full force and effect.
6. Miscellaneous.
(a) Entire Agreement. This Agreement, including the Exhibits hereto,
constitutes the entire agreement of the parties with respect to the subject
matter hereof and supersedes all other understandings, oral or written, with
respect to the subject matter hereof.
(b) Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed an original, but
all such counterparts shall constitute one and the same instrument.
(c) Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws (as opposed to conflicts of law provisions)
of the State of New York.
(d) Headings. Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose.
(e) Successors and Assigns. This Agreement shall be binding upon each of
the parties hereto and its successors and assigns.
* * * * *
5
<PAGE> 6
IN WITNESS WHEREOF, this Agreement has been duly executed as of the 31st
day of October, 1997.
HUNTWAY PARTNERS, L.P.
By: HUNTWAY MANAGING PARTNERS, L.P.,
its Managing General Partner
By: The Huntway Division of Reprise Holdings,
Inc., its sole General Partner
By: /s/ Warren J. Nelson
-------------------------------------
Name: Warren J. Nelson
Title: Executive Vice President and
Chief Financial Officer
SUNBELT REFINING COMPANY, L.P.
By: HUNTWAY PARTNERS, L.P., its sole
General Partner
By: HUNTWAY MANAGING PARTNERS, L.P.,
its Managing General Partner
By: The Huntway Division of Reprise Holdings,
Inc., its sole General Partner
By: /s/ Warren J. Nelson
-------------------------------------
Name: Warren J. Nelson
Title: Executive Vice President and
Chief Financial Officer
BANKERS TRUST COMPANY
By: /s/ Carl O. Roark
------------------------------------------
Name: Carl O. Roark
Title: Managing Director
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Michael L.. Klofas
------------------------------------------
Name: Michael L. Klofas
Title: Managing Director
Signature Page to Sequencing and Amendatory Agreement
<PAGE> 7
MADISON DEARBORN PARTNERS III
By: /s/ Samuel M. Mencoff
---------------------------------------
Name: Samuel M. Mencoff
Title: General Partner
FIRST CHICAGO EQUITY CORPORATION
By: /s/
---------------------------------------
Name:
Title:
LIGHTHOUSE INVESTORS, L.L.C.
By: Lighthouse Capital, LLC, its Manager
By: /s/ Richard S. Spencer, III
---------------------------------------
Name: Richard S. Spencer, III
Title: Manager
B III CAPITAL PARTNERS, L.P.
By: DDJ Capital III, LLC, its General Partner
By: DDJ Capital Management, LLC, Manager
By: /s/ Judy K. Mencher
---------------------------------------
Name: Judy K. Mencher
Title: Member
CONTRARIAN CAPITAL FUND I, L.P.
By: Contrarian Capital Management, LLC, its
general partner
By: /s/ Jon R. Bauer
---------------------------------------
Name: Jon R. Bauer
Title: Partner
Signature Page to Sequencing and Amendatory Agreement
<PAGE> 8
CONTRARIAN CAPITAL FUND II, L.P.
By: Contrarian Capital Management, LLC, its
general partner
By: /s/ Jon R. Bauer
------------------------------------------
Name: Jon R. Bauer
Title: Partner
CONTRARIAN CAPITAL ADVISORS, L.L.C.,
as agent for the entities listed below its signature
attached hereto.
By: /s/ Jon R. Bauer
------------------------------------------
Name: Jon R. Bauer
Title: Partner
Oppenheimer Horizon Partners, L.P.
Oppenheimer Institutional Horizon Partners, L.P.
Oppenheimer International Horizon Fund II Ltd.
Oppenheimer & Co., Inc.
The & Trust
THE CHASE MANHATTAN BANK As
Directed Trustee For The IBM Retirement
Plan Trust
By: See Rider 1
------------------------------------------
Name:
Title:
LINDNER GROWTH FUND
By: Ryback Management Corporation
By: /s/ Larry Callahan
------------------------------------------
Name: Larry Callahan
Title: V.P.
Signature Page to Sequencing and Amendatory Agreement
<PAGE> 9
MELLON BANK, N.A., solely in its capacity as
Trustee for First Plaza Group Trust (as directed by
Contrarian Capital Advisors, L.L.C.) and not in its
individual capacity.
By: /s/ Carole Bruno
----------------------------------------------------
Name: Carole Bruno
Title: Authorized Signatory
UNITED STATES TRUST COMPANY OF NEW
YORK, as Collateral Agent (acting at the direction of
parties that constitute Directing Parties, as defined in
the Intercreditor Agreement, immediately prior to the
execution and delivery of this Agreement, which
direction such Directing Parties by their execution
and delivery hereof hereby confirm)
By: /s/ Cynthia Chaney
----------------------------------------------------
Name: Cynthia Chaney
Title: Assistant Vice President
FLEET NATIONAL BANK, as trustee under
the Senior Indenture
By: /s/ Susan Freedman
----------------------------------------------------
Name: Susan Freedman
Title: Authorized Officer
STATE STREET BANK AND TRUST COMPANY,
as trustee under the Senior Subordinated Indenture
By: /s/ Susan Freedman
----------------------------------------------------
Name: Susan Freedman
Title: Vice President
Signature Page to Sequencing and Amendatory Agreement
<PAGE> 10
RIDER 1
Sequencing and Amendatory Agreement dated as of October 31, 1997
among Huntway Partners, L.P. and the Buyers
The Chase Manhattan Bank has executed this Agreement in its capacity as Trustee
("Trustee") of the IBM Retirement Plan Trust ("Trust") acting hereunder in such
capacity pursuant to the directions of Budge Collins, Inc., as Investment
Manager as such term is defined in ERISA ("Investment Manager"), in accordance
with the terms of the Trust and without limiting the generality of the
foregoing, any representations or statements made herein have been made for and
on behalf of the Trust in accordance with the directions of the Investment
Manager. Not withstanding any other provision of the Agreement, all actions to
be taken by or notices to be given to the Trust shall be taken by or given to
the Investment Manager.
By: /s/ Michael L. Rohling Date: 10/31/97
------------------------------ -------------
MICHAEL L. ROHLING, VICE PRESIDENT
CHASE MANHATTAN BANK
AS DIRECTED TRUSTEE FOR
THE IBM RETIREMENT PLAN TRUST
<PAGE> 11
EXHIBIT A
AMENDMENTS/CONSENTS TO SENIOR INDENTURE
1. Certain Definitions. Capitalized terms used in this Exhibit A
but not otherwise defined herein shall have the meanings given such terms in the
Sequencing and Amendatory Agreement to which this Exhibit A is attached.
2. Amendments to the Senior Indenture. The Senior Indenture is
amended as follows:
(a) Definitions.
(i) The following definitions contained in Section 101 of the Senior
Indenture are restated to read as follows:
"Collateral Agent" means United States Trust Company of New York
(or its successor), the entity named in the Intercreditor Agreement
as collateral agent under this Indenture, the Letter of Credit
Agreement and the Senior Subordinated Indenture.
"Common Units" means common stock of the obligor on the Securities;
except that so long as Huntway remains the Company, "Common Units"
means units representing a fractional part of the partnership
interests of the limited partners in the Huntway Partnership
Agreement.
"Intercreditor Agreement" means, notwithstanding the meaning set
forth in the Preliminary Statement of this Indenture, the Amended
and Restated Intercreditor and Collateral Trust Agreement dated as
of December 12, 1996 among the Trustee, the Collateral Agent, the
Holders and Bankers Trust, as issuer of letters of credit, as such
agreement may be amended, amended and restated, supplemented or
otherwise modified from time to time.
"Restricted Junior Payment" means any distribution, direct or
indirect, whether in cash or other property on account of (i) the
units of ownership in or capital stock of the Company or any other
equity ownership interest in the Company or dividend, distribution
or similar payment, redemption, purchase, retirement or other
acquisition for value, direct or indirect, of any units of
ownership in or capital stock of the Company or any other equity
ownership interest in the Company, (ii) the Convertible Notes for
the payment or prepayment of principal or the redemption, purchase,
retirement or defeasance with respect to such securities, (iii) the
Junior Subordinated Debentures for the payment or prepayment of
principal or interest or the redemption, purchase, retirement,
defeasance, sinking fund or similar payment with respect to such
securities (except for the payment of interest in the form of
securities in the same form and tenor as the Junior Subordinated
Debentures pursuant to Section 307(a) of the Junior Subordinated
Debenture Indenture), and (iv) warrants, options or other rights to
acquire units of ownership in or capital stock of the Company in
order to retire, or to obtain the surrender of, such securities.
<PAGE> 12
(ii) The following definitions are added to Section 101 of the
Senior Indenture:
"Anticipated Merger" means the merger of Huntway into a corporation
organized and existing under the laws of the State of Delaware that
has conducted no business and incurred no liabilities solely for
the purpose of changing the form in which Huntway's business is
conducted.
"Convertible Notes" means the 9-1/4% Senior Subordinated Secured
Convertible Notes due 2007 issued by the Company under the Senior
Subordinated Indenture.
"Huntway" means Huntway Partners, L.P., a Delaware limited
partnership.
"LOC Bank" means the issuer of the letters of credit issued under
the Letter of Credit Agreement.
"Senior Subordinated Indenture" means the Indenture dated as of
October 15, 1997 between the Company and State Street Bank and
Trust Company, as trustee, as from time to time amended, restated,
supplemented or otherwise modified.
(b) Money for Security Payments to be Held in Trust. Section 403
of the Senior Indenture is amended by inserting the words ", as such Agreement
is amended, restated or modified from time to time" after the words "New York"
in the last line of the first paragraph of such Section.
(c) Maintenance of Existence. Section 404 of the Senior Indenture
is amended by substituting the words "partnership or corporate existence, as the
case may be" for the words "partnership existence" in the second line of such
Section.
(d) Limitation on Indebtedness. Section 406 of the Senior
Indenture is amended by inserting the following new paragraph (k),
redesignating current paragraphs 406(k) and (l) as 406(l) and (m),
respectively, and replacing the reference to "(k)" in new paragraph 406(m) with
"(l)":
(k) The Company may become and remain liable with respect to
the Indebtedness under the Senior Subordinated Indenture;
(e) Limitation on Liens. Section 410 of the Senior Indenture is
amended by inserting the following new paragraph (h):
(h) Liens securing obligations under the Senior Subordinated
Indenture.
(f) Transactions with Partners and Affiliates. Section 414 of the
Senior Indenture is amended by (i) inserting the words "or capital stock of"
after the words "interests in" in the fourth line of such Section; and (ii)
inserting the words "or capital stock issued to such Person in exchange for
such Common Units pursuant to the Anticipated Merger" after the word "Plan" in
the last line of such Section.
ii
<PAGE> 13
(g) Limitation on Consolidated Capital Expenditures. Section 418 of the
Senior Indenture is amended by restating the first paragraph of such Section to
read as follows:
The Company will not and will not permit any of its Subsidiaries
to make, in the aggregate, Consolidated Capital Expenditures in an
amount in excess of $2,500,000 during 1997, in excess of $3,000,000
during 1998 or in excess of $1,250,000 during any subsequent
calendar year.
(h) Fundamental Changes Only on Certain Terms. Section 419 of the
Senior Indenture is amended by (A) inserting the words "(except pursuant to the
Anticipated Merger)" after the word "Partners" in the eighth line of such
Section; (B) inserting the words "prior to the Anticipated Merger" before the
word "allow" in the eighth line of such Section and before the word "add" in
the ninth line of such Section; (C) inserting the following as a new subsection
(d) and relettering existing subsection (d) as subsection (e): "(d) the Company
may effect the Anticipated Merger; and"; and (D) inserting the following text
at the end of Section 419:
"Upon any consolidation or merger of the Company or any sale, lease,
conveyance or other disposition of all or substantially all of the
assets of the Company in accordance with this Section 419, the successor
formed by such consolidation or into or with which the Company is merged
or to which such sale, lease, conveyance or other disposition is made,
as the case may be, shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture and
the Securities with the same effect as if such successor person had been
named as the Company herein or therein.
(i) Other Amendments. Section 424 of the Senior Indenture is amended by
inserting the words "or the Senior Subordinated Indenture" after the word
"Indenture."
(j) Replacement Letter of Credit. Section 425 of the Senior Indenture is
restated to read in its entirety as follows:
Upon the expiration or termination of the commitment of Bankers Trust
Company to issue letters of credit under the Letter of Credit Agreement, the
Company shall enter into a new letter of credit facility (the "Replacement
Letter of Credit Agreement") providing for a commitment to issue letters of
credit used to support purchases of crude oil and to support hedging
obligations in an aggregate stated amount of at least $17,500,000 but not to
exceed $22,000,000 at any one time for a period of not less than 12 months from
the effective date thereof. The Company will not, without the consent of the
Requisite Holders, amend any Replacement Letter of Credit Agreement if any such
amendment would shorten the term of, or increase to above $22,000,000
(exclusive of the amount of the IDB Letter of Credit) or decrease the amount of
credit under, the Letter of Credit Agreement or such Replacement Letter of
Credit Agreement.
(k) Events of Default. Section 501(e)of the Senior Indenture is amended
by inserting the words "(or, following the Anticipated Merger, stockholders)"
after the word "partners" each time it appears and by inserting the words "(or,
following the Anticipated Merger, capital stock)" after the words "units of
ownership"; Section 501(f) is amended by inserting the words "(or, following
the Anticipated Merger, stockholders)" after the word "partners" each time it
appears; and
iii
<PAGE> 14
the text in Section 501(l) prior to the semi-colon therein is replaced with the
following words: "the General Partner and the Special General Partner shall
cease to be the sole general partners of the Company, other than as a result of
the Anticipated Merger".
(l) Acceleration of Maturity. Section 502 of the Senior Indenture is
amended by inserting after the words "Carl O. Roark)" the words ", and to the
trustee under the Senior Subordinated Indenture (at Corporate Trust Department,
Two International Place, 4th Floor, Boston, Massachusetts 02110, Attention:
Susan Freedman)".
(m) Application of Money Collected. Section 506 of the Senior Indenture
is amended by inserting the words "Article 12 of the Senior Subordinated
Indenture or" prior to the words "Article Ten".
3. Consents under Senior Indenture. The following transactions are
consented to, and shall be permitted notwithstanding any prohibition or other
provision to the contrary contained in the Senior Indenture:
(a) The issuance of the Convertible Notes by the Company under the Senior
Subordinated Indenture;
(b) The issuance to the holders of Convertible Notes by the Company of the
common units or common stock issuable upon conversion of the Convertible Notes
in accordance with such Convertible Notes and the Senior Subordinated
Indenture;
(c) The amendment of the Junior Indenture as specified on Exhibit B to the
Sequencing and Amendatory Agreement to which this Exhibit A is attached and the
issuance by the Company to the Junior Lenders of interest accrued from the date
interest first accrued under the Junior Indenture, in the form of paid-in-kind
debentures;
(d) The consummation of the transactions contemplated by the Exchange
Agreement in accordance with the terms and conditions thereof; and
(e) The consummation of the Anticipated Merger (as defined in the Senior
Indenture).
4. Agreements. The Company agrees that in connection with the Anticipated
Merger (as defined in the Senior Indenture), the surviving corporation therein
will assume the obligations of the Company under the Senior Indenture, the
Collateral Documents (as defined in the Intercreditor Agreement) and the LOC
Agreement, through a written instrument of assumption.
<PAGE> 15
EXHIBIT B
AMENDMENTS/CONSENTS TO JUNIOR INDENTURE
1. Certain Definitions. Capitalized terms used in this Exhibit B but
not otherwise defined herein shall have the meanings given such terms in the
Sequencing and Amendatory Agreement to which this Exhibit B is attached.
2. Amendments to the Junior Indenture. The Junior Indenture is amended
as follows:
(a) Definitions.
(i) The following definitions contained in the Junior Indenture are
amended as follows:
The definition of "Current Market Value" is deleted in its entirety.
The definition of "Senior Indebtedness" is amended by (i) inserting
the words "and the Convertible Notes" after the word "Securities" in
the fourteenth line of such definition; (ii) inserting the words "and
the Convertible Notes and the Senior Subordinated Indenture" after the
word "Indenture" in the eighteenth line of such definition; (iii)
inserting the words "and the Convertible Notes" after the word
"Securities" in the twenty-first line of such definition; (iv)
inserting the words "and the Senior Subordinated Indenture" after the
word "Indenture" in the twenty-first line of such definition; and (v)
substituting the words ", the Convertible Notes or such indentures" for
the words "or such indentures" in the twenty-second line of such
definition.
The definition of "Support Agreement" is deleted in its entirety.
The definition of "Unit Valuation Date" is deleted in its entirety.
(ii) The following definitions contained in Section 101 of the Junior
Indenture are restated to read as follows:
"Intercreditor Agreement" means, notwithstanding the meaning set forth
in the Preliminary Statement of this Indenture, the Amended and
Restated Intercreditor and Collateral Trust Agreement dated as of
December 12, 1996 among the Trustee, the Collateral Agent, Bankers
Trust Company, Massachusetts Mutual Life Insurance Company, Mellon
Bank, N.A., as trustee for First Plaza Group Trust, Oppenheimer &
Company, Inc., as agent for itself and certain affiliated entities,
Lindner Growth Fund and Bankers Trust Company, as issuer of letters of
credit, as such agreement may be amended, restated, supplemented or
otherwise modified from time to time.
<PAGE> 16
"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 and
the Senior Subordinated Indenture, the respective trustee named in
such Indenture.
"Restricted Junior Payment" means any distribution, direct or
indirect, whether in cash or other property on account of (i) the
units of ownership in or capital stock of the Company or any other
equity ownership interest in the Company or dividend, distribution
or similar payment, redemption, purchase, retirement or other
acquisition for value, direct or indirect, of any units of
ownership in or capital stock of the Company or any other equity
ownership interest in the Company, and (ii) warrants, options or
other rights to acquire units of ownership in or capital stock of
the Company in order to retire, or to obtain the surrender of, such
securities.
"Secondary Securities" has the meaning specified in Section 307(f).
"Senior Notes" means the Senior Notes (Other) and the Senior Notes
(Sunbelt IDB) and any securities authenticated and delivered upon
registration of transfer thereof, or in exchange therefor, or in
lieu thereof; provided the principal amount of such authenticated
and delivered securities shall not exceed the principal amount of
the Notes to be exchanged, transferred or replaced.
"Specified Senior Debt" means (a) any Senior Indebtedness at any
time arising under the Letter of Credit Facility or the Replacement
Letter of Credit Agreement; (b) any Senior Indebtedness at any
time arising under the Collateralized Note Indenture; and (c) any
Indebtedness at any time arising under the Senior Subordinated
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.
(iii) The following definitions are added to Section 101 of the
Junior Indenture:
"Anticipated Merger" means the merger of Huntway into a corporation
organized and existing under the laws of the United States, any
state thereof or the District of Columbia that has conducted no
business and incurred no liabilities solely for the purpose of
changing the form in which Huntway's business is conducted.
"Convertible Notes" means the 9-1/4% Senior Subordinated Secured
Convertible Notes due 2007 issued by the Company under the Senior
Subordinated Indenture.
"Huntway" means Huntway Partners, L.P., a Delaware limited
partnership.
"IDB Letter of Credit" means that certain Irrevocable Letter of
Credit No. S04377 dated October 5, 1988 in the original stated
amount of $9,510,411.00 issued by Bankers Trust Company to the
trustee under that certain Indenture of Trust, dated August 1,
1988, pursuant to which the Sunbelt Bonds were issued.
ii
<PAGE> 17
"LOC Bank" means the issuer of the letters of credit issued under
the Letter of Credit Agreement.
"Senior Subordinated Indenture" means the Indenture dated as of
October 15, 1997 between the Company and State Street Bank and
Trust Company, as trustee, as from time to time amended,
supplemented, restated or otherwise modified.
(b) Title and Terms. Section 301 of the Junior Indenture is
amended by inserting "(a)" after the word "for" in the second line of such
Section and inserting at the end of the first sentence of such Section the
words "and (b) Securities issued in respect of accrued interest pursuant to
Section 307(a) hereof (the "Secondary Securities")".
(c) Denominations. Section 302 of the Junior Indenture is amended
by inserting the words "(except for Secondary Securities)" after the word
"multiples" in the second line of such Section and after the words "principal
amounts" in the fifth line of such Section.
(d) Payment of Interest. Sections 307(a) - (d) of the Junior
Indenture are restated in their entirety to read as follows:
Section 307. Payment of Principal and Interest; Preservation of
Rights.
(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 all accrued interest
(including Secondary Securities, as defined in the Collateralized Note
Indenture, issued with respect thereto) on the Senior Securities and until
conversion of the Convertible Notes pursuant to the Senior Subordinated
Indenture or payment in full of the principal amount of all accrued interest on
the Convertible Notes, shall not be paid in cash but shall instead be paid
solely through the issuance on each Interest Payment Date of securities in the
same form and tenor as the Securities with a principal amount equal to the
amount of accrued and unpaid interest. The Company shall notify the Trustee in
writing prior to any redemption in full of the Senior Notes or the Convertible
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, and the Convertible
Notes have been converted pursuant to the Senior Subordinated Indenture or the
principal amount of and all accrued interest on the Convertible Notes 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 later of 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 and the
conversion of the Convertible Notes pursuant to the Senior Subordinated
Indenture or payment in full of the principal amount of and all accrued
interest on the Convertible Notes does not fall on an Interest Payment Date,
then interest accrued to the date of such payment shall be paid through
issuance of additional Securities with an aggregate principal amount equal to
such accrued interest 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. 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.
iii
<PAGE> 18
(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 and the Convertible Notes have been
converted pursuant to the Senior Subordinated Indenture or the principal amount
of and all accrued interest on the Convertible Notes 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, provided that the Company shall not pay any principal 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
Senior Securities has been paid in full and the Convertible Notes have been
converted pursuant to the Senior Subordinated Indenture or the principal amount
of and all accrued interest on the Convertible Notes has been paid in full.
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
Secondary Securities, 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 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) Payment of Interest (307(f)). Section 307(f) of the Junior Indenture
is amended by substituting the parenthetical language "(including, without
limitation, provision by issuance of Secondary Securities)" for the
parenthetical language contained in the second line of such Section and by
restating the proviso at the end of subparagraph (2) therein as follows:
"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 and conversion of the Convertible Notes or payment in full of
the principal amount of and all accrued interest on the Convertible Notes
is made solely in kind and not in cash.
(f) Sections 307(g) and 307(h) are hereby deleted in their entirety.
iv
<PAGE> 19
(g) Maintenance of Existence. Section 404 of the Junior Indenture is
amended by substituting the words "partnership or corporate existence, as the
case may be" for the words "partnership existence" in the second line of such
Section.
(h) Limitation on Indebtedness. Section 406 of the Junior Indenture is
amended by (i) inserting the words "and the Convertible Notes" after the word
"Securities" in the third line of such Section, (ii) deleting the words "in an
amount not to exceed $1,500,000" in paragraph 406(f) and (iii) inserting the
following new paragraph (j), redesignating current paragraph 406(j) as
406(k)and replacing the reference to "(i)" in new paragraph 406(k) with "(j)":
(j) The Company may become and remain liable with respect to
the Indebtedness under the Senior Subordinated Indenture; and
(i) Limitation on Restricted Junior Payments. Section 407 of the Junior
Indenture is amended by inserting the words "and the Convertible Notes" after
the word "Securities" in the third line of such Section.
(j) Limitation on Restrictions Affecting Subsidiaries. Section 408 of the
Junior Indenture is amended by inserting the words "and the Convertible Notes"
after the word "Securities" in the third line of such Section.
(k) Limitation on Liens. Section 410 of the Junior Indenture is amended
by inserting the following new paragraph (h):
(h) Liens securing obligations under the Senior Subordinated
Indenture.
(l) Transactions with Partners and Affiliates. Section 414 of the Junior
Indenture is amended by (i) inserting the words "and the Convertible Notes"
after the word "Securities" in the third line of such Section; (ii) inserting
the words "or capital stock of" after the words "interests in" in the seventh
line of such Section; and (iii) inserting the words "or capital stock issued to
such Person in exchange for such Common Units pursuant to the Anticipated
Merger" after the word "Plan" in the last line of such Section.
(m) Financial Covenants. Section 415 of the Junior Indenture is amended
by inserting the words "and the Convertible Notes" after the word "Securities"
in the third line of such Section.
(n) Limitation on Investments, Loans and Advances. Section 417 of the
Junior Indenture is amended by inserting the words "and the Convertible Notes"
after the word "Securities" in the third line of such Section.
(o) Limitation on Consolidated Capital Expenditures. Section 418 of the
Junior Indenture is amended by restating the first sentence of such Section to
read as follows:
v
<PAGE> 20
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 and the Convertible Notes,
the Company will not and will not permit any of its
Subsidiaries to make, in the aggregate, Consolidated Capital
Expenditures in an amount in excess of $3,000,000 during any
calendar year.
(p) Fundamental Changes Only on Certain Terms. Section 419 of
the Junior Indenture is amended by (i) inserting the words "and the Convertible
Notes" after the word "Securities" in the third line of such Section; (ii)
amending and restating clause (d) thereof to read as follows: "(d) the Company
may effect the Anticipated Merger; and" and (iii) inserting the following text
at the end of such Section:
"Upon any consolidation or merger of the Company or any sale,
lease, conveyance or other disposition of all or substantially all
of the assets of the Company in accordance with this Section 419,
the successor formed by such consolidation or into or with which
the Company is merged or to which such sale, lease, conveyance or
other disposition is made, as the case may be, shall succeed to,
and be substituted for, and may exercise every right and power of,
the Company under this Indenture and the Securities with the same
effect as if such successor person had been named as the Company
herein or therein."
(q) Contingent Obligations. Section 420 of the Junior Indenture is
amended by inserting the words "and the Convertible Notes" after the word
"Securities" in the third line of such Section.
(r) Grant of Lien to Secure Obligations. Section 422 of the Junior
Indenture is amended by (i) inserting the words "and the Convertible Notes"
after the word "Securities" in the fourth line of such Section; and (ii)
inserting the words "and Convertible Notes" after the word "Securities" in the
seventh line of such Section.
(s) Events of Default. Section 501(e) of the Junior Indenture is
amended by inserting the words "(or, following the Anticipated Merger,
stockholders)" after the word "partners" each time it appears and by inserting
the words "(or, following the Anticipated Merger, capital stock)" after the
words "units of ownership"; Section 501(f) is amended by inserting the words
"(or, following the Anticipated Merger, stockholders)" after the word
"partners" each time it appears; and the text in Section 501(l) prior to the
semi-colon therein is replaced with the following words: "the General Partner
and the Special General Partner shall cease to be the sole general partners of
the Company, other than as a result of the Anticipated Merger".
(t) Acceleration of Maturity. Section 502 of the Junior Indenture
is amended by inserting after the words "Carl O. Roark)" the words ", and to the
trustee under the Senior Subordinated Indenture (at Corporate Trust Department,
Two International Place, 4th Floor, Boston, Massachusetts 02110, Attention:
Susan Freedman)".
vi
<PAGE> 21
(u) Right of Redemption. Section 901 of the Junior Indenture is amended
by inserting the words "and the Convertible Notes" after the words "Senior
Securities" in the third line of such Section.
(v) Approval of Senior Indebtedness. Section 1006 of the Junior Indenture
is amended by inserting the words "and the Convertible Notes and the Senior
Subordinated Indenture" after the word "Indenture" in the fourth line of clause
(i) of such Section.
3. Consents under Junior Indenture. The following transactions are
consented to, and shall be permitted notwithstanding any prohibition or other
provision to the contrary contained in the Junior Indenture:
(a) The issuance of the Convertible Notes by the Company under the Senior
Subordinated Indenture;
(b) The issuance to the holders of the Convertible Notes by the Company of
the common units and/or shares of common stock issuable upon conversion of the
Convertible Notes in accordance with such Convertible Notes and the Senior
Subordinated Indenture;
(c) The redemption by the Company of the Convertible Notes in the event of
a Change of Control (as defined in the Senior Subordinated Indenture) pursuant
to the Senior Subordinated Indenture;
(d) The amendment of the Senior Indenture as specified on Exhibit A to the
Sequencing Agreement to which this Exhibit B is attached;
(e) The consummation of the transactions contemplated by the Exchange
Agreement in accordance with the terms and conditions thereof; and
(f) The consummation of the Anticipated Merger (as defined in the Junior
Indenture).
vii
<PAGE> 22
EXHIBIT C
AMENDMENTS TO LOC AGREEMENT
1. Certain Definitions. Capitalized terms used in this Exhibit C
but not otherwise defined herein shall have the meanings given such terms in the
Sequencing and Amendatory Agreement to which this Exhibit C is attached.
2. Amendments to the LOC Agreement. The LOC Agreement is amended as
follows:
(a) Definitions.
(i) The following definitions contained in the LOC Agreement are
amended as follows:
The definition of "Collateral" is amended by (i) substituting a
comma for the word "and" in the third line of such definition and
(ii) inserting the words "and the holders of the Convertible Notes"
after the word "Notes" in the third line of such definition.
The definition of "Commitment Termination Date" is restated to read
as follows: "Commitment Termination Date means December 31,
1998."
The definition of "Huntway" is restated to read as follows:
"Huntway" means Huntway Partners, L.P., a Delaware limited
partnership; provided that from and after the effectiveness
of the Anticipated Merger, "Huntway" means the surviving
corporation in the Anticipated Merger.
The definition of "Security Documents" is amended by inserting the
words "and the Senior Subordinated Indenture" at the end of such
definition.
(ii) The following definitions are added to Section 101 of the LOC
Agreement:
"Anticipated Merger" means the merger of Huntway into a corporation
organized and existing under the laws of the State of Delaware that
has conducted no business and incurred no liabilities solely for
the purpose of changing the form in which Huntway's business is
conducted.
"Convertible Notes" means the 9-1/4% Senior Subordinated Secured
Convertible Notes due 2007 issued by the Company under the Senior
Subordinated Indenture.
"Senior Subordinated Indenture" means the Indenture dated as of
October 15, 1997 between the Company and State Street Bank and
Trust Company, as trustee, pursuant to which the Convertible Notes
have been issued, as amended from time to time in accordance with
Section 424 of the Collateralized Note Indenture (as incorporated
herein by reference).
<PAGE> 23
(b) Representations and Warranties. Section 4.01 (a) of the LOC Agreement
is amended by (i) inserting the words "(except that after the Anticipated
Merger Huntway is a corporation duly incorporated and validly existing under
the laws of the State of Delaware)" after the word "Delaware" in the second
line of such Section and (ii) inserting the words "(except that after the
Anticipated Merger Huntway has the requisite corporate power and authority)"
after the word "authority" in the third and sixth lines of such Section.
Section 4.01(b) of the LOC Agreement is amended by inserting the words "(or, in
the case of Huntway after the Anticipated Merger, corporate action)" after the
word "action". Section 4.01(d) of the LOC Agreement is amended by inserting
the words "(or, in the case of Huntway after the Anticipated Merger, under the
certificate of incorporation of Huntway)" after the word "Sunbelt" in the
seventh line of such Section. Section 4.01(h) of the LOC Agreement is amended
by substituting "December 31, 1996" for "December 31, 1995" each time it
appears in such Section.
(c) Covenants. Section 5.01(e) of the LOC Agreement is amended by adding
the words "; provided, however, that Huntway may effect the Anticipated Merger"
at the end of such Section.
(d) Events of Default. Section 6.01 of the LOC Agreement is amended by
(i) inserting the words "(or, following the Anticipated Merger, stockholders)"
after the word "partners" each time it appears in clauses (viii) and (ix) of
such Section, (ii) inserting the words "(or, following the Anticipated Merger,
capital stock)" after the words "units of ownership" in clause (viii) of such
Section and (iii) restating clause (xv) of such Section in its entirety to read
as follows:
(xv) the General Partner and the Special General Partner shall
cease to be the sole general partners of Huntway (other than as a
result of the Anticipated Merger) or Huntway shall cease to be the
Sunbelt Managing General Partner.
(e) Other Provisions. Sections 6.02(b) and 7.04 of the LOC Agreement is
amended by inserting the words "and Convertible Notes" after the words "Senior
Notes" in the second to last line of each such Section.
ii
<PAGE> 24
EXHIBIT D
AMENDMENTS TO INTERCREDITOR AGREEMENT/RELATED AGREEMENTS
1. Certain Definitions. Capitalized terms used in this Exhibit E
but not otherwise defined herein shall have the meanings given such terms in the
Sequencing and Amendatory Agreement to which this Exhibit E is attached.
2. Amendments to the Intercreditor Agreement. The Intercreditor
Agreement is amended as follows:
(a) Definitions.
(i) The following definitions contained in the Intercreditor
Agreement are amended as follows:
The definition of "Divestiture" is amended by restating clause (b)
thereof to read as follows: "transfers of assets by Huntway in the
Anticipated Merger".
The definition of "Event of Default" is amended by inserting at the
end of such definition the words "; or (c) in the case of the
Convertible Note Obligations, an "Event of Default" as defined in
the Senior Subordinated Indenture as a result of a failure to pay
any portion of the principal of or interest accrued on the
Convertible Note Obligations (whether by acceleration or
otherwise)."
The definition of "Financing Agreements" is amended by inserting
the words ", the Senior Subordinated Indenture, the Convertible
Notes" after the word "Notes" in the second line of such
definition.
The definition of "Secured Obligations" is amended by inserting the
words ", all Convertible Note Obligations" after the word
"Obligations" but before the word "and" in the first line of such
definition.
(ii) The following definitions contained in Section 1.1 of the
Intercreditor Agreement are restated in their entirety to read as
follows:
"Directing Parties" means the following:
(i) at all times when any Replacement LOC Obligations shall be
outstanding, (x) for purposes of directing the Collateral Agent
with respect to any actions to be taken with respect to the
Replacement LOC Collateral and the Collateral Documents encumbering
the Replacement LOC Collateral, Secured Parties (other than the
Collateral Agent) holding 51% of the Replacement LOC Obligations;
provided, that upon payment in full of the Replacement LOC
Obligations, Directing Parties means Secured Parties (other than
the Collateral Agent) holding not less than 66-2/3% of the
outstanding principal amount of the Senior Notes; provided further
that upon payment in full of the Replacement LOC Obligations and
the Senior Notes (Sunbelt IDB), Directing Parties means Secured
Parties (other than the Collateral Agent)
<PAGE> 25
holding not less than 66-2/3% of the outstanding principal
amount of the Senior Notes (Other) and Convertible Notes; and (y)
for purposes of directing the Collateral Agent with respect to all
Collateral other than the Replacement LOC Collateral and all
Collateral Documents encumbering such Collateral and all
Guaranties, Secured Parties (other than the Collateral Agent) who
hold not less than 66-2/3% of the outstanding principal amount of
the Senior Notes; provided that upon payment in full of the Senior
Notes (Sunbelt IDB), Directing Parties for the purposes described
in this clause (y) means Secured Parties (other than the Collateral
Agent) holding not less than 66-2/3% of the outstanding principal
amount of the Senior Notes (Other) and Convertible Notes; and
(ii) at all times when no Replacement LOC Obligations shall
be outstanding, Secured Parties (other than the Collateral Agent)
who hold not less than 51% of the LOC Obligations; provided, that
upon payment in full of the LOC Obligations, Directing Parties
means Secured Parties (other than the Collateral Agent) holding not
less than 66-2/3% of the outstanding principal amount of the Senior
Notes; provided further, that upon payment in full of the LOC
Obligations and Senior Notes (Sunbelt IDB), Directing Parties means
Secured Parties (other than the Collateral Agent) holding not less
than 66-2/3% of the outstanding principal amount of the Senior
Notes (Other) and Convertible Notes.
"Directing Parties' Request, Order or Instruction" means any
request, order or instruction delivered to a Responsible Officer of
the Collateral Agent signed by Secured Parties constituting not
less than Directing Parties and certifying that the parties giving
such direction represent either (i) not less than 51% of the
Replacement LOC Obligations, (ii) not less than 51% of the LOC
Obligations, (iii) not less than 66-2/3% of the outstanding
aggregate principal amount of Senior Notes (or, if no Senior Notes
(Sunbelt IDB) shall be outstanding of the outstanding, aggregate
principal amount of Senior Notes (Other) and Convertible Notes,
taken together), or (iv) not less than 66-2/3% of the outstanding
aggregate principal amount of Senior Notes (Other) and Convertible
Notes, taken together, and that such parties constitute Directing
Parties for purposes of such request, order or instruction and are
entitled to give such direction hereunder.
"Huntway" means (i) before the Anticipated Merger, Huntway
Partners, L.P., a Delaware limited partnership, and (ii) thereafter
its successor by virtue of the consummation of the Anticipated
Merger.
"Secured Parties" means the Collateral Agent, the Indenture
Trustee, the Senior Subordinated Indenture Trustee, the Senior Note
Holders, the Convertible Note Holders and the LOC Bank.
"Senior Notes" means the Senior Notes (Other) and the Senior Notes
(Sunbelt IDB) and any securities authenticated and delivered upon
registration of transfer thereof, or in exchange therefor, or in
lieu thereof provided the principal amount of such authenticated
and delivered securities shall not exceed the principal amount of
the Notes to be exchanged, transferred or replaced.
ii
<PAGE> 26
"Sharing Event" means the occurrence of one or more of the
following events (a) Huntway shall have an order for relief entered
with respect to it or commenced a voluntary case under the
Bankruptcy Code or 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 a voluntary case, under any such law or a petition
for relief against Huntway in an involuntary case or proceeding
under the Bankruptcy Code or any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect is filed and either
(i) Huntway fails to timely controvert such petition or (ii) such
petition is not stayed or dismissed within 90 days or (b) the
acceleration of the payment of the entire outstanding principal
amount of the LOC Obligations (or the cash collateralization
thereof), the Collateralized Note Obligations or the Convertible
Note Obligations, as the case may be, under and as provided in the
Letter of Credit Agreement, the Collateralized Note Indenture or
the Senior Subordinated Indenture, as the case may be.
(iii) The following definitions are added to Section 1.1 of the
Intercreditor Agreement:
"Anticipated Merger" means the merger of Huntway into a corporation
organized and existing under the laws of the State of Delaware that
has conducted no business and incurred no liabilities solely for
the purpose of changing the form in which Huntway's business is
conducted.
"Convertible Note Holders" means the holders from time to time of
the Convertible Notes.
"Convertible Note Obligations" means all obligations of Huntway
arising under the Senior Subordinated Indenture.
"Convertible Notes" means the 9-1/4% Senior Subordinated Secured
Convertible Notes due 2007 issued by the Company under the Senior
Subordinated Indenture.
"Senior Subordinated Indenture" means the Indenture dated as of
October 15, 1997 between the Company and State Street Bank and
Trust Company, as trustee, pursuant to which the Convertible Notes
are being issued, as such agreement may be amended, amended and
restated, supplemented or modified from time to time.
"Senior Subordinated Indenture Trustee" means State Street Bank and
Trust Company, as trustee under the Senior Subordinated Indenture,
together with its successors and assigns.
(b) Section 2 Amendments.
(i) Section 2.1B(1) of the Intercreditor Agreement is amended by:
(i) substituting the word "FIFTH" for the word "FOURTH" in the fifth line
of such Section, (ii)
iii
<PAGE> 27
inserting the following clause "FOURTH" following existing clause "THIRD"
and (iii) redesignating existing clause "FOURTH" to be clause "FIFTH":
FOURTH: After payment in full of the outstanding obligations
described in subsection 2.1B(i) FIRST, and either payment in full
of the outstanding obligations described in subsection 2.1B(1)(x)
SECOND or application of all Replacement LOC Collateral Proceeds
received by the Collateral Agent to the payment of all Replacement
LOC Obligations, and payment in full of the outstanding obligations
described in subsection 2.1B(1) THIRD, to the ratable payment of
the Convertible Note Obligations; and
(ii) Section 2.1C(3) of the Intercreditor Agreement is amended by
substituting the word "FIFTH" for the word "FOURTH" in the fourth line
thereof.
(iii) Section 2.3 of the Intercreditor Agreement is amended to
substitute "$22,000,000" for "$17,500,000" in clause (ii) of the next to
last sentence of such Section.
(iv) Section 2.4 of the Intercreditor Agreement is amended by
inserting the words " and not less than 66-2/3% of the outstanding
principal amount of the Convertible Notes" after the words "Senior Notes"
in the fourth line of clause (b).
(v) Section 2.6 of the Intercreditor Agreement is restated to read
as follows:
2.6 INSTRUCTIONS TO INDENTURE TRUSTEES.
The holders of the Collateralized Note Obligations and the
Convertible Note Obligations party to this Agreement agree to give
written instructions to the Indenture Trustee and the Senior Subordinated
Indenture Trustee, respectively, to take actions (with sufficient
particularity of instruction) consistent with the agreements of such
holders under this Agreement.
(d) Amendments to Section 3 of the Intercreditor Agreement.
(i) Section 3.4(a) of the Intercreditor Agreement is amended by (A)
substituting a comma for the word "or" in the fourth line of such
Section, (B) inserting the words "or the Senior Subordinated Indenture"
after the word "Indenture" in the fourth line of such Section and (C)
inserting the words "and the Senior Subordinated Indenture Trustee" after
the word "Trustee" in the sixth line of such Section.
(ii) Section 3.5 of the Intercreditor Agreement is amended by (A)
substituting the word "shall" for the word "may" in the second line of
such Section; and (B) inserting the words ", the Senior Subordinated
Indenture Trustee" after the word "Trustee" in the tenth line of such
Section.
(iii) Section 3.9 of the Intercreditor Agreement is amended by (A)
deleting the word "and" in the second line of such Section and (B)
inserting the following at the end of such Section:
iv
<PAGE> 28
and (c) payments to the Collateral Agent with respect to the
Convertible Note Obligations shall be made to the Senior
Subordinated Indenture Trustee or its designee for distribution to
the holders of the Convertible Notes in accordance with the terms
of the Senior Subordinated Indenture.
(iv) Section 3.10 of the Intercreditor Agreement is amended by (A)
substituting a comma for the word "and" after the word "Obligations" in
the fourth line of such Section, (B) inserting the words "and by the
Senior Subordinated Indenture Trustee as to any amounts payable with
respect to the Convertible Note Obligations" after the word "Obligations"
in the fifth line of such Section, (C) substituting a comma for the word
"or" before the word "Collateralized" in the seventh line of such
Section, (D) inserting the words "or Convertible Note Obligations" after
the words "Note Obligations" in the seventh line of such Section, (E)
substituting a comma for the word "or" after the word "Bank" in the
sixteenth line of such Section and (F) inserting the words "or the Senior
Subordinated Indenture Trustee" after the word "Trustee" in the sixteenth
line of such Section.
(v) Section 3.12(c) of the Intercreditor Agreement is amended by
substituting the words ""Collateralized Note Obligations" and
"Convertible Note Obligations,"" for the words "and "Collateralized Note
Obligations,"" in the seventh line of such Section.
(vi) Section 3.14(a) of the Intercreditor Agreement is amended by
adding the following phrase at the end of the last sentence of such paragraph:
and provided further that no Secured Party shall be liable
for the foregoing to the extent they arise from any action or
inaction taken or omitted to be taken by any Person prior to
the date that such Secured Party became a Secured Party.
(e) Notices. Section 4.1 of the Intercreditor Agreement is
amended by (A) adding the following at the end of the second sentence thereof:
except that the addresses of the following parties hereto (until
such notice) shall be as follows:
B III Capital Partners, L.P.
c/o DDJ Capital Management, LLC
141 Linden Street, Suite S-4
Wellesley, MA 02181
Attn: Wendy Schnipper Clayton
Lighthouse Investors, L.L.C.
c/o Westcliff Capital Management, LLC
200 Seventh Avenue, Suite 105
Santa Cruz, CA 95062
Attn: Richard S. Spencer III
Contrarian Capital Fund I, L.P. or
v
<PAGE> 29
Contrarian Capital Fund II, L.P.
c/o Contrarian Capital Management
411 West Putnam, Suite 225
Greenwich, CT 06830
Attn: John R. Bauer, Managing Partner
and (B) adding the following sentence to the end of such Section:
For purposes hereof, the address of the Senior Subordinated
Indenture Trustee shall be Corporate Trust Department, Two
International Place, 4th Floor, Boston, Massachusetts 02110,
Attention: Susan Freedman (until notice of a change thereof is
delivered as provided in this subsection 4.1).
(f) Amendments and Waivers. Section 4.2 of the Intercreditor
Agreement is amended by replacing the first sentence of such Section with the
following:
This Agreement may be amended, amended and restated, supplemented
or otherwise modified by an instrument or instruments in writing
signed by the Collateral Agent, Secured Parties (other than the
Collateral Agent) holding 51% of the Replacement LOC Obligations
(if any such Obligations are outstanding), Secured Parties holding
not less than 51% of the LOC Obligations (if any such LOC
Obligations are outstanding), Secured Parties (other than the
Collateral Agent) holding not less than 66-2/3% of the outstanding
Collateralized Note Obligations (if any such Obligations are
outstanding), and Secured Parties (other than the Collateral Agent)
holding not less than 66-2/3% of the outstanding Convertible Note
Obligations (if any such Obligations are outstanding); provided
that the signature of any such Secured Parties (other than the
Collateral Agent) holding a stated percentage of Obligations shall
not be required if the rights or benefits of such holders are not
adversely affected by such amendment, amendment and restatement,
supplement or other modification. Any Collateral Document may be
amended, amended and restated, supplemented or otherwise modified
only by an instrument in writing signed by the Collateral Agent,
the other party or parties to such Collateral Documents and the
Directing Parties for purposes of directing the Collateral Agent
with respect to any actions to be taken with respect to such
Collateral Document.
3. Agreements. (a) Effective simultaneously with the amendments
contained in Section 2 above, Mass Mutual, as a holder of Senior Notes (Other)
issued under the Senior Indenture, shall cease to be a party to the
Intercreditor Agreement and each of the Exchange Buyers, as holders of
Convertible Notes (as defined in Section 2 above), and the Senior Subordinated
Indenture Trustee shall become a party to the Intercreditor Agreement.
(b) The rights of the Collateral Agent under Section 3.14(a) of
the Intercreditor Agreement shall survive the amendment of the Intercreditor
Agreement pursuant to the Sequencing and Amendatory Agreement to which this
Exhibit D is attached. Nothing contained in such Sequencing and Amendatory
Agreement or any Exhibit thereto shall be deemed to limit any obligations of
any Secured Party ceasing to be a Secured Party on the date hereof under
Section
vi
<PAGE> 30
3.14(a) of the Intercreditor Agreement with respect to liabilities under such
Section arising from any action or inaction taken or omitted to be taken prior
to the date hereof.
vii
<PAGE> 31
EXHIBIT E
AMENDMENTS TO COLLATERAL ACCOUNTS AGREEMENT
1. Amendments to the Collateral Accounts Agreement. The Collateral
Accounts Agreement is amended as follows:
(a) Definitions.
(i) The following definitions contained in the Collateral Accounts
Agreement are amended and restated to read as follows:
"Event of Default" shall have the meaning assigned to such term in
each of the Letter of Credit Agreement, the Collateralized Note
Indenture and the Convertible Note Indenture.
"Huntway" means (i) before the Anticipated Merger, Huntway
Partners, L.P., a Delaware limited partnership, and (ii) thereafter
its successor by virtue of the consummation of the Anticipated
Merger.
"Secured Obligations" means all obligations and liabilities of
every nature of Pledgers owing to Secured Parties now or hereafter
existing under or arising out of or in connection with the Letter
of Credit Agreement, the Replacement Letter of Credit Agreement,
the Collateralized Note Indenture, the Senior Notes, the Senior
Subordinated Indenture, the Convertible Notes, the Intercreditor
Agreement and each of the Collateral Documents and all extensions,
or renewals thereof, whether for principal, interest (including,
without limitation, interest that, but for the filing of a petition
in bankruptcy with respect to Pledgors, would accrue on such
obligations), reimbursement of amounts drawn under Letters of
Credit, fees, commissions, expenses, indemnities or otherwise,
whether voluntary or involuntary, direct or indirect, absolute or
contingent, liquidated or unliquidated, whether or not jointly owed
with others, and whether or not from time to time decreased or
extinguished and later increased, created or incurred, and all or
any portion of such obligations or liabilities that are paid, to
the extent all or any part of such payment is avoided or recovered
directly or indirectly from Collateral Agent as a preference,
fraudulent transfer or otherwise, and all obligations of every
nature of Pledgors now or hereafter existing under this Agreement.
(ii) The following definitions are added to Section 1 of the
Collateral Accounts Agreement:
"Anticipated Merger" means the merger of Huntway Partners, L.P.
into a corporation organized and existing under the laws of the
State of Delaware that has conducted no business and incurred no
liabilities solely for the purpose of changing the form in which
Huntway Partners, L.P.'s business is conducted.
"Collateralized Note Indenture" means the Amended and Restated
Collateralized Note Indenture dated as of December 12, 1996 between
Huntway and Fleet National
<PAGE> 32
Bank, as trustee, as the same may be amended, supplemented,
restated or otherwise modified from time to time.
"Convertible Notes" means the 9-1/4% Senior Subordinated Secured
Convertible Notes due 2007 issued by the Company under the Senior
Subordinated Indenture.
"Letters of Credit" means the letters of credit issued under the
Letter of Credit Agreement.
"Senior Subordinated Indenture" means the Indenture dated as of
October 15, 1997 between the Company and State Street Bank & Trust
Company, as trustee, as the same may be amended, supplemented,
restated or otherwise modified from time to time.
ii
<PAGE> 33
EXHIBIT F
POST-CLOSING AMENDMENTS
Certain Definitions. Capitalized terms used in this Exhibit F but not
otherwise defined herein shall have the meanings given such terms in the
Sequencing and Amendatory Agreement to which this Exhibit F is attached.
PART I: AMENDMENTS TO SENIOR INDENTURE
1. New Senior Notes (Sunbelt IDB). The Senior Indenture will be amended
to provide for the issuance of a new class of Variable Rate Senior Secured
Notes (Sunbelt IDB) due 1998 (the "New Senior Notes (Sunbelt IDB)") in an
aggregate original principal amount of $9,100,000. Upon the effectiveness of
such amendment, all accrued and unpaid interest on the existing Senior Notes
(Sunbelt IDB) shall be paid, and such New Senior Notes (Sunbelt IDB) shall be
authenticated and delivered under the Senior Indenture in exchange for all
issued and outstanding existing Senior Notes (Sunbelt IDB). Such New Senior
Notes (Sunbelt IDB) shall thereupon be "Senior Notes (Sunbelt IDB)" for all
purposes under the Senior Indenture.
2. Interest Rate. The Interest Rate (prior to Maturity) on the New Senior
Notes (Sunbelt IDB) shall be equal to 0.00% per annum. The Interest Rate on
the portion of the principal amount of the New Senior Notes (Sunbelt IDB) that
is due and payable shall be equal to the higher of 12% per annum and the sum of
Banker's Trust's prime rate, as announced from time to time, plus 4% per annum.
3. Maturity. The New Senior Notes (Sunbelt IDB) shall provide that, upon
the occurrence of any drawing under the IDB Letter of Credit that is not
reimbursed by the Company on the date of such drawing, a portion of the New
Senior Notes (Sunbelt IDB) in the principal amount of such drawing shall
immediately and without further action become due and payable. Upon the
occurrence of an acceleration of the obligations under the LOC Agreement
pursuant to Section 6.02 of the LOC Agreement, the entire principal amount of
the New Senior Notes (Sunbelt IDB) shall immediately and without further action
become due and payable.
PART II: AMENDMENTS TO LOC AGREEMENT
1. Reimbursement of Draws on IDB Letter of Credit. Section 2.02(ii) of
the LOC Agreement will be amended to provide that the Company will pay to BT on
the date that any drawing is honored under the IDB Letter of Credit, a sum
equal to the amount of such drawing. If the Company fails to reimburse BT in
full on the day that any drawing on the IDB Letter of Credit is honored in
accordance with the immediately preceding sentence, then a portion of the New
Senior Note (Sunbelt IDB) in a principal amount equal to the amount of such
drawing shall become immediately due and payable.
2. Fees on IDB Letter of Credit. Section 2.03 of the LOC Agreement will
be amended by adding thereto a new clause (d) as follows:
<PAGE> 34
(d) Huntway hereby agrees to pay to Bankers with respect to
the IDB Letter of Credit a commission equal to the undrawn face
amount of the IDB Letter of Credit multiplied by (i) 2.33% per
annum during the period from November 1, 1997 to December 31, 1997,
(ii) 2.50% per annum during the period from January 1, 1998 to June
30, 1998, and (iii) 3.00% thereafter. Such commissions shall be
calculated on the basis of a 360-day year for the actual number of
days elapsed and shall be payable monthly in arrears on the
thirtieth day of each month, commencing on November 30, 1997, and
at maturity.
3. Defaults and Remedies. Section 6 of the LOC Agreement will be
amended to provide that, upon an Event of Default and acceleration, the New
Senior Note (Sunbelt IDB) shall become due and payable.
ii
<PAGE> 1
Exhibit 10.2
EXCHANGE AND PURCHASE AGREEMENT
Dated as of October 31, 1997
among
Huntway Partners, L.P.,
Lighthouse Investors, L.L.C.,
B III Capital Partners, L.P.,
Contrarian Capital Fund I, L.P.,
Contrarian Capital Fund II, L.P.,
Oppenheimer Horizon Partners, L.P.,
Oppenheimer Institutional Horizon Partners, L.P.,
Oppenheimer International Horizon Fund II, Ltd.,
Oppenheimer & Co., Inc.,
The & Trust,
First Plaza Group Trust
and
IBM Retirement Plan Trust
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
1. Authorization of Notes............................................................... 1
2. Sale, Purchase and Exchange of Notes................................................. 1
3. Closing.............................................................................. 2
3.1 Delivery of Notes.............................................................. 2
3.2 Opinion of Counsel............................................................. 2
3.3 Registration Rights Agreement.................................................. 2
3.4 Indenture...................................................................... 2
3.5 Intercreditor Agreement........................................................ 2
3.6 Sequencing and Amendatory Agreement............................................ 3
3.7 Legal Fees..................................................................... 3
3.8 Management Rights Letter....................................................... 3
4. Representations and Warranties of the Company........................................ 3
4.1 Organization and Qualification................................................. 3
4.2 Capitalization................................................................. 3
4.3 Execution and Binding Effect................................................... 4
4.4 Authorization and Filings...................................................... 4
4.5 Absence of Conflicts........................................................... 4
4.6 Security Interest.............................................................. 5
4.7 SEC Filings; Financial Statements.............................................. 5
4.8 Taxes.......................................................................... 6
4.9 Intellectual Property ......................................................... 6
4.10 Compliance with Law............................................................ 7
4.11 Litigation, etc................................................................ 8
4.12 No Adverse Change.............................................................. 9
4.13 Title to Properties; Absence of Encumbrances...................................10
4.14 Employee Programs..............................................................10
4.15 Private Offering...............................................................12
4.16 Disclosure.....................................................................13
4.17 Employment Practices...........................................................13
4.18 Transactions with Affiliates...................................................13
4.19 Limitation on Subsidiary Payment Restrictions..................................14
4.20 No Other Business..............................................................14
4.21 No Margin Regulation Violation.................................................14
4.22 Brokers and Finders............................................................14
4.23 Huntway Equity Securities......................................................14
4.24 No Default.....................................................................14
4.25 Bankers Trust/Massachusetts Mutual Actions.....................................15
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C>
5. Representations and Warranties of the Purchasers..................... 15
5.1 Investment Intent.............................................. 15
5.2 No Public Offering............................................. 15
5.3 Certificates to be Legended.................................... 15
5.4 Securities Will be "Restricted Securities"..................... 16
5.5 Accredited Investor............................................ 16
5.6 Sophistication of the Purchaser................................ 16
5.7 Brokers' Fees.................................................. 16
5.8 Title Representation........................................... 16
5.9 Existing Ownership............................................. 16
5.10 Insider Trading................................................ 16
6. Covenants............................................................ 17
6.1 Notice......................................................... 17
6.2 Access......................................................... 17
6.3 Indebtedness................................................... 17
6.4 Compliance with Laws........................................... 18
6.5 Restrictions on Dividends and other Payments................... 18
6.6 Financial Statements and other Delivery Requirements........... 19
6.7 Restrictions on Acquisition of Subsidiaries.................... 20
6.8 Transactions with Partners and Affiliates...................... 20
6.9 Financial Covenants............................................ 21
6.10 Limitation on Investments, Loans and Advances.................. 21
6.11 Limitation on Consolidated Capital Expenditures................ 21
6.12 Fundamental Changes Only on Certain Terms...................... 21
6.13 Contingent Obligations......................................... 23
6.14 Environmental Covenants........................................ 23
6.15 Letter of Credit Agreement..................................... 25
6.16 Directors...................................................... 25
6.17 Right of First Offer........................................... 25
6.18 Conversion to Corporation...................................... 27
6.19 Survival of Covenants.......................................... 27
7. Confidentiality...................................................... 28
8. Events of Default and Remedies....................................... 28
8.1 Events of Default.............................................. 28
8.2 Acceleration................................................... 29
9. Expenses............................................................. 29
10. Indemnification...................................................... 30
10.1 Indemnity by the Company....................................... 30
10.2 Notice of Indemnity Claim...................................... 31
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C> <C>
10.3 Survival of Representations, Warranties and Agreements....... 32
11. Miscellaneous....................................................... 32
11.1 Powers and Rights Not Waived; Remedies Cumulative............ 32
11.2 Amendments and Waivers....................................... 32
11.3 Notices...................................................... 32
11.4 Entire Agreement............................................. 33
11.5 Successors and Assigns....................................... 33
11.6 Severability................................................. 33
11.7 Governing Law................................................ 34
11.8 Interpretation............................................... 34
11.9 Further Assurances........................................... 34
11.10 Counterparts................................................. 34
11.11 Assignment................................................... 34
11.12 Maximum Interest Rate........................................ 34
12. Definitions......................................................... 35
12.1 Glossary..................................................... 35
12.2 Index........................................................ 45
</TABLE>
<TABLE>
<S> <C>
EXHIBIT A Form of Kirkland & Ellis Opinion
EXHIBIT B Form of Registration Rights Agreement
EXHIBIT C Form of Indenture
EXHIBIT D Form of Sequencing and Amendatory Agreement
EXHIBIT E Form of Management Rights Letter
</TABLE>
iii
<PAGE> 5
THIS EXCHANGE AND PURCHASE AGREEMENT (this "AGREEMENT") is entered into
as of October 31, 1997, by and among Huntway Partners, L.P., a Delaware limited
partnership (including its corporate successor, the "COMPANY"), on the one
hand, and Lighthouse Investors, L.L.C., a Delaware limited liability company
("LIGHTHOUSE"), B III Capital Partners, L.P., a Delaware limited partnership
("B III"), Contrarian Capital Fund I, L.P., a Delaware limited partnership
("CONTRARIAN I"), Contrarian Capital Fund II, L.P., a Delaware limited
partnership ("CONTRARIAN II"), Oppenheimer Horizon Partners, L.P. ("OPPENHEIMER
I"), Oppenheimer Institutional Horizon Partners, L.P., ("OPPENHEIMER II"),
Oppenheimer International Horizon Fund II, Ltd., ("OPPENHEIMER III"),
Oppenheimer & Co., Inc., ("OPPENHEIMER IV"), and The & Trust ("OPPENHEIMER V"),
First Plaza Group Trust, ("FIRST PLAZA"), The IBM Retirement Plan Trust ("IBM")
(Lighthouse, B III, Contrarian I and Contrarian II are each referred to as an
"EXCHANGING PURCHASER"; B III, Oppenheimer I, Oppenheimer II, Oppenheimer III,
Oppenheimer IV, Oppenheimer V, Contrarian I, Contrarian II, IBM and First Plaza
are each referred to as a "CASH PURCHASER" and each Exchanging Purchaser and
Cash Purchaser is referred to as a "PURCHASER"), with reference to the
following facts:
The Exchanging Purchasers have purchased the Senior Notes (Other) and
Common Units of the Company listed on the Exchange Schedule (collectively, the
"INITIAL SECURITIES") from Bankers Trust Company and Massachusetts Mutual Life
Insurance Company (the "INITIAL SECURITIES HOLDERS"). After the conditions in
this Agreement are satisfied, the Exchanging Purchasers will deliver the
Initial Securities to the Company in exchange for the Notes. The Exchanging
Purchasers are relying on the terms and conditions of this Agreement in making
their decisions to purchase the Initial Securities and exchange them for the
Notes. After the conditions in this Agreement are satisfied, the Cash
Purchasers will wire transfer funds to the Company in exchange for the Notes.
The Cash Purchasers are relying on the terms and conditions of this Agreement
in making their decisions to purchase the Notes.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and conditions set forth in this Agreement, the parties agree
as follows:
1. AUTHORIZATION OF NOTES. The Company will authorize the issuance and
sale of $21,750,000 aggregate principal amount of its 9 1/4% Senior
Subordinated Secured Convertible Notes due 2007 (the "NOTES", such term to
include any such notes issued in substitution therefor pursuant to the
Indenture) to be substantially in the form of the Notes set forth in an exhibit
to the Indenture, with such changes therefrom, if any, as may be approved by
the Purchasers and the Company. Certain capitalized terms used in this
Agreement are defined in section 12; references to a "SCHEDULE" or an "EXHIBIT"
are, unless otherwise specified, to a Schedule or an Exhibit attached to this
Agreement.
2. SALE, PURCHASE AND EXCHANGE OF NOTES. Subject to the terms and
conditions of this Agreement, the Company will issue and sell to each
Exchanging Purchaser and each Exchanging Purchaser will purchase from the
Company, at the Closing provided for in section 3, Notes in the principal
amount set forth next to such Exchanging Purchaser's name under the heading
"Principal Amount of Notes to be Issued to Exchanging Purchasers" on the
Exchange
<PAGE> 6
Schedule in exchange for all right, title and interest of such Exchanging
Purchaser in the Initial Securities listed next to such Purchaser's name under
the headings " Common Units of Huntway Partners, L.P." and "Principal Amount
Outstanding of 12% Senior Notes (Other)" on the Exchange Schedule. The
principal amount of the Notes issued to each Exchanging Purchaser shall equal
the amount of cash provided by that Exchanging Purchaser to the Initial
Securities Holders for such Initial Securities.
Subject to the terms and conditions of this Agreement, the Company will
issue and sell to each Cash Purchaser and each Cash Purchaser will purchase
from the Company, at the Closing provided for in section 3, Notes in the
principal amount set forth next to such Purchaser's name on the Cash Payment
Schedule in exchange for funds wire transferred to the Company in the amount
set forth next to such Purchaser's name on the Cash Payment Schedule.
The Company may not sell Notes to any other purchasers without the
consent of Three-Fourths in Interest of the Purchasers.
3. CLOSING. The sale and exchange of the Notes for the Initial Securities
with each Purchaser shall take place at the offices of Kirkland & Ellis, 300
South Grand Avenue, Suite 3000, Los Angeles, California, at 10:00 a.m., Los
Angeles time, at a closing to occur on the date that this Agreement is executed
by the Purchasers and the Company (the "CLOSING"; the date of Closing is the
"CLOSING DATE"). The following documents and transactions will occur at the
Closing:
3.1 DELIVERY OF NOTES. The Company and the Purchasers will deliver the
Notes and the consideration therefor as set forth in section 2.
3.2 OPINION OF COUNSEL. Kirkland & Ellis shall deliver an opinion to
the Purchasers in the form of Exhibit A.
3.3 REGISTRATION RIGHTS AGREEMENT. The Company, the Purchasers, Lindner
Growth Fund, Madison Dearborn Partners III and First Chicago Equity Corporation
shall enter into a Registration Rights Agreement in the form set forth in
Exhibit B (the "REGISTRATION RIGHTS AGREEMENT").
3.4 INDENTURE. The Company and State Street Bank and Trust Company (the
"TRUSTEE") shall enter into the Indenture in the form set forth in Exhibit C
(the "INDENTURE").
3.5 INTERCREDITOR AGREEMENT. The Purchasers shall become parties to the
Amended and Restated Intercreditor Agreement, dated as of December 12, 1996,
among Bankers Trust Company, as LOC Bank, Fleet National Bank, as indenture
trustee under the Collateralized Note Indenture, United States Trust Company of
New York, as Collateral Agent, and the financial institutions listed on the
signature pages thereof (the "AMENDED INTERCREDITOR AGREEMENT").
2
<PAGE> 7
3.6 SEQUENCING AND AMENDATORY AGREEMENT. The Purchasers, the Company
and the other parties thereto shall execute and deliver the Sequencing and
Amendatory Agreement in the form set forth in Exhibit D (the "SEQUENCING AND
AMENDATORY AGREEMENT").
3.7 LEGAL FEES. The Company shall pay the legal fees and expenses
provided for in section 9.
3.8 MANAGEMENT RIGHTS LETTER. The Company shall deliver the Management
Rights Letter to B III in the form attached hereto as Exhibit E (the
"MANAGEMENT RIGHTS LETTER").
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Except as specifically
referred to in the Disclosure Documents, the Company hereby represents and
warrants to the Purchasers as of the date hereof and as of the date of the
Closing as follows:
4.1 ORGANIZATION AND QUALIFICATION. The Company is a limited
partnership duly formed, existing and in good standing under the laws of the
State of Delaware and has all requisite limited partnership power and authority
to own and operate its properties and assets, to carry on its business as now
and heretofore conducted, to issue and sell the Notes, to effect the
conversion of the Notes into Huntway Equity Securities and to execute, deliver
and carry out the terms of the Related Documents. Each of the Company and each
Subsidiary is duly qualified to do business as a foreign limited partnership
and is in good standing in each jurisdiction in which the ownership of its
properties or the nature of its business make such qualification necessary and
where a failure to be so qualified would have a material adverse effect on the
business, operations, prospects or condition, financial or otherwise, of the
Company and its Subsidiaries taken as a whole (the "CONDITION OF THE COMPANY").
4.2 CAPITALIZATION.
(a) Schedule 4.2 lists each class of outstanding equity securities of
the Company and the number of units outstanding for each class as of the date of
this Agreement. Except as set forth on Schedule 4.2, the Company has not
authorized the issuance of any Huntway Equity Securities that are not
outstanding. All such outstanding equity securities were validly issued and
have been issued in accordance with the registration or qualification
provisions of the 1933 Act and any relevant state securities laws or pursuant
to valid exemptions therefrom. Under the Delaware Revised Uniform Limited
Partnership Act, limited partners of the Company are not liable for the
obligations of the Company except to the extent provided in sections 17-303 and
17-607 thereof.
(b) Except as set forth in Schedule 4.2 and pursuant to the transactions
contemplated by this Agreement, there are not on the date hereof authorized,
outstanding or contemplated any subscriptions, options, conversion rights,
warrants or other agreements, securities or commitments obligating the Company
or any Subsidiary to issue, deliver, sell, or
3
<PAGE> 8
cause to be issued, delivered or sold, any equity securities of the Company or
any Subsidiary, or any securities convertible into or exchangeable for equity
securities of the Company or any Subsidiary or obligating the Company or any
Subsidiary to grant, extend or enter into any such agreement or commitment.
Except as set forth in Schedule 4.2 and pursuant to the transactions
contemplated by this Agreement, the Company has not granted any rights to any
Person to register any of the Company's securities under foreign, federal or
state securities laws.
(c) The Company's Subsidiaries are set forth on Schedule 4.2 hereto.
Except as disclosed on Schedule 4.2, the Company owns, directly or indirectly,
all of the outstanding equity securities or other evidences of equity ownership
of each of its Subsidiaries free of any Lien and said equity securities have
been validly issued and are outstanding.
4.3 EXECUTION AND BINDING EFFECT. The execution and delivery of the
Related Documents and the consummation of the transactions contemplated hereby
or thereby have been duly authorized by all necessary action on the part of the
Company, except that the Conversion has not yet been authorized. The Related
Documents to which the Company is a party have been duly executed and delivered
by the Company and the Related Documents to which the Company is a party
constitute legal, valid and binding agreements of the Company enforceable
against the Company in accordance with their respective terms. The Notes and
the Huntway Equity Securities to be delivered on the conversion of the Notes
will be free of restrictions on transfer other than under applicable federal
and state securities laws and as set forth in the Registration Rights
Agreement.
4.4 AUTHORIZATION AND FILINGS. After giving effect to the Related
Documents, except as set forth in Schedule 4.4, no authorization, consent,
approval, license, exemption or other action by, and no registration,
qualification, designation, declaration or filing with, any Authority or any
other Person is required to be made or obtained by the Company or any
Subsidiary in order to execute or deliver the Related Documents or to
consummate the transactions contemplated hereby or thereby. The representation
and warranty made in the preceding sentence is made in reliance upon the
representations and warranties of the Purchasers in section 5. Schedule 4.4
generically lists consents to assignment of certain unnamed agreements and
permits with respect to the Conversion. Notwithstanding this generic listing,
the Company reasonably believes that it can obtain all such required consents
and approvals and that the failure to obtain any or all of such consents and
approvals will not materially affect the Conversion or the Condition of the
Company following the Conversion.
4.5 ABSENCE OF CONFLICTS. After giving effect to the Related Documents,
neither the execution and delivery of the Related Documents to which it is a
party by the Company nor the consummation of the transactions on the part of
the Company contemplated hereby or thereby (including, without limitation, the
Conversion) nor the Company's performance of or compliance with the terms and
conditions related to it in the Related Documents will (a) violate any Law; (b)
conflict with or result in a breach or violation of or a default or loss of
benefit under or permit the acceleration of any obligation under any provision
of the governing documents of the Company or any Subsidiary, or any agreement
or instrument
4
<PAGE> 9
to which the Company or any Subsidiary is a party or by which the Company, any
Subsidiary or any of their properties is bound, or (c) except as provided in
the Amended Intercreditor Agreement or the Collateral Documents, result in the
creation or imposition of any Lien on any property or asset of the Company or
any Subsidiary, in each case or in the aggregate which would have a material
adverse effect on the Condition of the Company (it being understood that as a
result of the Conversion the general partners of the Company will, except to
the extent provided in the Delaware Revised Uniform Limited Partnership Act,
cease to have liability for the obligations of the Company).
4.6 SECURITY INTEREST. Upon the payment for the Notes, except to the
extent provided in or permitted by the Amended Intercreditor Agreement, the
Collateral Documents and this Agreement, the Amended Intercreditor Agreement
and the Collateral Documents create a valid security interest and lien upon the
Collateral securing the payment of all obligations to the holders of the Notes
purported to be secured thereby. Subject to the preceding sentence, such
security interests are perfected security interests subject to no prior
security interests, claims, liens, or encumbrances, except for Permitted
Encumbrances and as set forth on Schedule 4.13.
4.7 SEC FILINGS; FINANCIAL STATEMENTS.
(a) The Company and each of its Subsidiaries has filed all forms,
reports and documents required to be filed with the SEC since January 1, 1997.
All such required forms, reports and documents are referred to herein as the
"SEC REPORTS." As of their respective dates, the SEC Reports (i) were prepared
in accordance with the requirements of the 1933 Act or the 1934 Act, as the
case may be, and the rules and regulations of the SEC thereunder applicable to
such SEC Reports and (ii) did not at the time they were filed (or if amended or
superseded by a filing prior to the date of this Agreement, then on the date of
such filing) contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. As of the Closing, the Private Placement Memorandum
(only including amendments and supplements provided to the Purchasers prior to
the Closing) does not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(b) Each of the consolidated financial statements (including, in each
case, any related notes thereto) contained in the SEC Reports or the Private
Placement Memorandum (the "FINANCIALS"), including any SEC Reports filed after
the date hereof until the Closing, (x) complies as to form in all material
respects with the published rules and regulations of the SEC with respect
thereto, (y) was prepared in accordance with GAAP applied on a consistent basis
throughout the periods involved (except as may be indicated in the notes
thereto or, in the case of unaudited interim financial statements, as may be
permitted by the SEC on Form 10-Q under the 1934 Act) and (z) fairly presented
in all material respects the consolidated financial position of the Company and
its Subsidiaries as at the respective dates thereof and the
5
<PAGE> 10
consolidated results of its operations and cash flows for the periods
indicated, except that the unaudited interim financial statements were or are
subject to normal and recurring year-end adjustments. The balance sheet of the
Company, including its related notes, contained in the SEC Reports, as of June
30, 1997, is hereinafter referred to as the "BALANCE SHEET." Neither the
Company nor any of its Subsidiaries has any liabilities (absolute, accrued,
contingent or otherwise) of a nature required to be disclosed on a balance
sheet or in the related notes to the consolidated financial statements prepared
in accordance with GAAP which have, individually or in the aggregate, a
material adverse effect on the Condition of the Company, except liabilities (i)
provided for in the Balance Sheet, or (ii) incurred since the date of the
Balance Sheet in the ordinary course of business. The Company is not aware of
any reasonable basis for the assertion against the Company or any Subsidiary of
any other debt, duty, liability, obligation or loss contingency other than
Liabilities that are not individually or in the aggregate material to the
Condition of the Company.
(c) Except as set forth in the SEC Reports or on the Balance Sheet,
neither the Company nor any of its Subsidiaries have outstanding any debt for
borrowed money, or obligations or liabilities evidenced by bonds, debentures,
notes or other similar instruments or under capital leases other than
short-term debt incurred in the ordinary course of business. The Company has
not entered into any material guarantees, assumptions and similar agreements
and arrangements whereby the Company or any of its Subsidiaries is or may
become directly or indirectly liable or responsible for the indebtedness or
other obligations of another Person other than the Company or any of its
Subsidiaries, except for negotiable instruments endorsed for collection or
deposit in the ordinary course of its business, identifying, with respect to
each of the respective parties, amounts and maturities.
4.8 TAXES. The Company and each of its Subsidiaries has filed all
material tax returns required to be filed by any of them and has paid (or the
Company has paid on its behalf), or has set up an adequate reserve for the
payment of, all material taxes required to be paid as shown on such returns and
the most recent financial statements contained in the SEC Reports reflect an
adequate reserve for all material taxes payable by the Company and its
Subsidiaries accrued through the date of such financial statements. Except as
reasonably would not be expected to have a material adverse effect on the
Condition of the Company, no material deficiencies for any taxes have been
proposed, asserted or assessed against the Company or any of its Subsidiaries.
4.9 INTELLECTUAL PROPERTY.
(a) The Company and its Subsidiaries own, or have the right to use, sell
or license all intellectual property necessary or required for the conduct of
their respective businesses as presently conducted (such intellectual property
and the rights thereto are collectively referred to as the "COMPANY IP RIGHTS")
except for any failure to own or have the right to use, sell or license that
would not have a material adverse effect on the Condition of the Company.
6
<PAGE> 11
(b) After giving effect to the Related Documents, the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby (including, without limitation, the
Conversion) will not constitute a breach of any instrument or agreement
governing any Company IP Right, will not cause the forfeiture or termination or
give rise to a right of forfeiture or termination of any Company IP Right or
impair the right of the Company and its Subsidiaries to use, sell or license
any Company IP Right or portion thereof, except for any such breach,
forfeiture, termination, right of forfeiture or termination or impairment that
would not, individually or in the aggregate, result in a material adverse
effect on the Condition of the Company.
(c) (i) Neither the manufacture, marketing, license, sale or intended
use of any product currently licensed or sold by the Company or any of its
Subsidiaries violates any license or agreement between the Company or any of
its Subsidiaries and any third party or, to the knowledge of the Company,
infringes any intellectual property right of any other party; and (ii) there is
no pending or, to the knowledge of the Company, threatened claim or litigation
contesting the validity, ownership or right to use, sell, license or dispose of
any Company IP Right, except, with respect to clauses (i) and (ii), for any
violation, infringement, claim or litigation that would not have a material
adverse effect on the Condition of the Company.
4.10 COMPLIANCE WITH LAW. The Company is not in violation of any term of
its governing documents, as currently in effect, or any Law (including, but not
limited to any Environmental Law), which violation, individually or in the
aggregate, reasonably would be expected to have a material adverse effect on
the Condition of the Company. The Company and its Subsidiaries hold all
material licenses, franchises, permits, consents, registrations, certificates
and other approvals (including, without limitation, those relating to
Environmental Laws and environmental matters, public and worker health and
safety, buildings, highways or zoning) (individually, a "LICENSE" and
collectively, "LICENSES") required for the conduct of its business as now being
conducted, and is operating in substantial compliance therewith, except where
the failure to hold any such License or to operate in compliance therewith
would not have a material adverse effect on the Condition of the Company. No
Release of any Hazardous Materials has occurred for which the Company would be
responsible that, individually or in the aggregate, has a reasonably
probability of having a material adverse effect on the Condition of the
Company. There has been no assertion by any party that the Company is in
material violation of any Laws. The Company has all Government Authorizations
necessary or appropriate for the conduct of its business, except where the
failure to obtain such Government Authorizations would not, individually or in
the aggregate, have a material adverse effect on the Condition of the Company.
Specifically and without limiting the generality of the foregoing and, except
where exceptions, individually or in the aggregate, would not have a material
adverse effect on the Condition of the Company:
(a) Except as permitted under applicable laws and regulations,
including, without limitation, the federal Resource Conservation Recovery Act,
42 USC Section 6901 et seq. ("RCRA"), the Company has not accepted, processed,
handled, transferred, generated,
7
<PAGE> 12
treated, stored or disposed of any Hazardous Material nor has it accepted,
processed, handled, transferred, generated, treated, stored or disposed of
asbestos, medical waste, radioactive waste or municipal waste, except in
compliance with Environmental Laws.
(b) During the Company's ownership or leasing of the property owned or
leased by it and, to the knowledge of the Company, prior to the Company's
ownership or leasing of such property, no Hazardous Material has been disposed
of, or otherwise released on any such property.
(c) Except as set forth on Schedule 4.10, during the Company's ownership
or leasing of the property owned or leased by it and, to the knowledge of the
Company, prior to the Company's ownership or leasing of such property, no such
property has ever been subject to or received any notice of any private,
administrative or judicial action, or notice of any intended private,
administrative or judicial action relating to the presence or alleged presence
of Hazardous Material in, under, upon or emanating from any such property or
any real property now or previously owned by the Company or any other violation
or potential violation of Environmental Law, and the Company does not believe
that there is any reasonable basis for any of the foregoing. Except as set
forth on Schedule 4.10, there are no pending and, to the best of the Company's
knowledge, no threatened investigations, actions or proceedings from any
Authority or any other entity involving remediation of any condition of such
property, including, without limitation, petroleum contamination, pursuant to
Environmental Laws.
(d) The Company has not knowingly sent, transported or arranged for the
transportation or disposal of any Hazardous Material, to any site, location or
facility in violation of any Environmental Laws.
4.11 LITIGATION, ETC. There are no actions, suits, proceedings or
investigations pending against the Company or its properties (of which the
Company has been served or is aware) before any court or Authority (nor, to the
Company's knowledge, is there any written threat thereof), which, either in any
case or in the aggregate, reasonably would be expected to have a material
adverse effect on the Condition of the Company, and none which questions the
validity of or impairs the ability to perform fully on a timely basis any
obligation under the Related Documents or any action taken or to be taken in
connection herewith. Except as set forth on Schedule 4.11, neither the Company
nor any of its Subsidiaries is in violation of, or in default under (and there
does not exist any event or condition which, after notice or lapse of time or
both, would constitute such a default under), any term of its Charter
Documents, or of any term of any agreement, instrument, judgment, decree,
order, statute, injunction, governmental regulation, rule or ordinance
(including, without limitation, those relating to zoning, city planning or
similar matters) applicable to the Company or any of its Subsidiaries or to
which the Company or any of its Subsidiaries is bound, or to any properties of
the Company or any of its Subsidiaries, except in each case to the extent that
such violations or defaults, individually or in the aggregate, could not
reasonably be expected to (a) affect the validity of any Related Document, (b)
have a material adverse effect on the Condition of the
8
<PAGE> 13
Company, or (c) impair the ability of the Company to perform fully on a timely
basis any material obligation which the Company has or will have under any
Related Document to which the Company is a party. None of the transactions
contemplated hereby or by the Related Documents (including, without limitation,
the Conversion) have been enjoined by any Authority and no suit or other
proceeding challenging the transactions contemplated hereby or by the Related
Documents (including, without limitation, the Conversion) (of which the Company
has been served or is aware) has been instituted or, to the best of the
Company's knowledge, threatened, and no investigative demand on the Company
related to such transactions has been made by any Authority.
4.12 NO ADVERSE CHANGE. Except as otherwise permitted by this Agreement
or as disclosed on any Schedule hereto, since the date of the Balance Sheet,
the Company and its Subsidiaries have operated their businesses diligently and
only in the ordinary course of business, and have not:
(a) incurred any liabilities, other than in the ordinary course of
business consistent with past practice;
(b) suffered any material adverse change in the Condition of the
Company;
(c) sold, encumbered, assigned or transferred any assets or properties
of the Company or any Subsidiary, other than for fair value in the ordinary
course of business consistent with past practice;
(d) as of the date of this Agreement, created, incurred, assumed or
guaranteed any Indebtedness or subjected any of its assets to any Lien except
for Indebtedness or Permitted Encumbrances that are not, individually or in the
aggregate, material to the Condition of the Company;
(e) changed or amended its governing documents in any respect material
to the holders of the Notes;
(f) declared, set aside, paid or made any distributions in cash or
property on the Company's equity securities;
(g) directly or indirectly redeemed, purchased or otherwise acquired any
equity securities of the Company or any Subsidiary except for the repurchase of
equity securities from employees in an amount not to exceed, in the aggregate,
$25,000;
(h) suffered any resignation or termination of employment of any key
officers and, the Company, to the best of its knowledge, does not know of any
impending resignation or termination of employment of any such key officers;
9
<PAGE> 14
(i) except in the ordinary course of business of the Company and its
Subsidiaries, materially increased the compensation payable or to become
payable by the Company or any Subsidiary to any of their officers or directors
or materially increased any bonus, insurance, pension or other employee benefit
plan, payment or arrangement made by the Company or any Subsidiary for or with
any such officers or directors;
(j) materially changed its accounting methods, principles or practices,
except as required by concurrent changes in GAAP; or
(k) entered into any agreement or commitment to do any of the things
described in this section 4.12.
4.13 TITLE TO PROPERTIES; ABSENCE OF ENCUMBRANCES. The Company and the
Subsidiaries have good and marketable title to or, in the case of leases and
licenses, valid and subsisting leasehold interests or licenses in, all of their
properties and assets of whatever kind (whether real or personal, tangible or
intangible) free and clear of any Liens, except as set forth in Schedule 4.13,
for Permitted Encumbrances or as provided in the Amended Intercreditor
Agreement and the Collateral Documents. Schedule 4.13 also lists all material
Indebtedness of the Company as of October 15, 1997. All facilities, equipment
and other material items of tangible property and assets owned by the Company
or any Subsidiary are in good operating condition and repair, subject to normal
wear and maintenance, are usable in the regular and ordinary course of business
and conform to all applicable Laws relating to their construction, use and
operation, except where such failure, individually or in the aggregate, would
not have a material adverse effect on the Condition of the Company. No Person
other than the Company or any Subsidiary owns any equipment or other tangible
assets or property situated on the premises of the Company or such Subsidiary
or necessary to the operation of the business of the Company or such
Subsidiary, except for leased items, as to which leases, the Company or such
Subsidiary is not in default thereof, except for such assets or property,
individually or in the aggregate, that are not material to the Condition of the
Company.
4.14 EMPLOYEE PROGRAMS. Schedule 4.14 sets forth a list of every Employee
Program maintained by the Company or any Current Affiliate at any time during
the two-year period ending on the Closing Date or with respect to which a
liability of the Company or an Affiliate (as defined below) exists. Each
Employee Program (other than a Multiemployer Plan) which has been maintained by
the Company during the two-year period ending on the Closing Date and which has
been intended to qualify under section 401(a) or section 501(c)(9) of the
Internal Revenue Code of 1986, as amended (the "CODE"), has received a
favorable determination or approval letter from the Internal Revenue Service
regarding its qualification under such section or the remedial amendment period
under section 401(b) of the Code has not yet expired with respect to such
Employee Program. To the knowledge of the Company, nothing has occurred that
would adversely affect such qualification since the date of such letter or an
application for a determination or approval letter has been timely made and to
the knowledge of the Company, no reason exists why a favorable determination or
approval shall not be granted. Except as set forth on Schedule 4.14, the
Company has no knowledge of any
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failure of any party to comply with any Laws applicable with respect to the
Employee Programs that have been maintained by the Company or any Current
Affiliate, except where the failure to so comply would not, individually or in
the aggregate, have a material adverse effect on the Condition of the Company.
No such failure will result from completion of the transactions contemplated
hereby (including, without limitation, the Conversion). With respect to any
Employee Program ever maintained by the Company or an Affiliate, there has been
no "prohibited transaction," as defined in section 406 of ERISA or Code section
4975, or breach of any duty under ERISA or other applicable law or any
agreement which in any such case could subject the Company to material
liability either directly or indirectly (including, without limitation, through
any obligation of indemnification or contribution) for any damages, penalties,
or taxes, or any other loss or expense. No litigation or governmental
administrative proceeding (or investigation) or other proceeding (other than
those relating to routine claims for benefits) is pending (of which the Company
has been served or is aware) or, to the knowledge of the Company, threatened
with respect to any such Employee Program (other than a Multiemployer Plan).
The Company and its Current Affiliates have not incurred any material
liability under title IV of ERISA which has not been paid in full prior to the
Closing. Neither the Company nor any of its Current Affiliates is liable for
any material "accumulated funding deficiency" (whether or not waived) with
respect to any Employee Program ever maintained by the Company or any Affiliate
and subject to Code section 412 or ERISA section 302. With respect to any
Employee Program subject to title IV of ERISA, there has been no (and the
transactions contemplated by this Agreement (including, without limitation, the
Conversion) will not result in any) (a) "reportable event," within the meaning
of ERISA section 4043 or the regulations thereunder (for which the notice
requirement is not waived under 29 C.F.R. Part 2615) or (b) other event or
condition which presents a material risk of plan termination or any other event
that may cause the Company or an Current Affiliate to incur material liability
or have a material Lien imposed on its assets under title IV of ERISA. All
material payments and/or contributions required to have been made by the
Company and its Current Affiliates (under the provisions of any agreements or
other governing documents or applicable law) with respect to all Employee
Programs subject to title IV of ERISA ever maintained by the Company or any
Affiliate, for all periods prior to the Closing, have been timely made. Except
as described in Schedule 4.14, no Employee Program maintained by the Company or
an Affiliate and subject to title IV of ERISA (other than a Multiemployer Plan)
has any "unfunded benefit liabilities" within the meaning of ERISA section
4001(a)(18). Neither the Company nor any Affiliate has ever maintained a
Multiemployer Plan.
For purposes of this section:
(i) "EMPLOYEE PROGRAM" means (A) any employee benefit plan within
the meaning of section 3(3) of ERISA and employee benefit plans (such as
foreign or excess benefit plans) which are not subject to ERISA, and (B) any
stock option plans, bonus or incentive award plans, severance pay policies or
agreements, deferred compensation arrangements, supplemental income
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arrangements, vacation plans, and all other employee benefit
plans, agreements, and arrangements not described in (A) above,
and (C) any trust used to fund benefits under the foregoing
maintained by the Company or any Affiliate.
(ii) An entity is an "AFFILIATE" of the Company if it would
have ever been considered a single employer with the Company under
ERISA section 4001(b) or part of the same "controlled group" as
the Company for purposes of ERISA section 302(d)(8)(C); an entity
is a "CURRENT AFFILIATE" if it currently would be considered a
single employer with the Company under ERISA section 4001(b) or
part of the same "controlled group" as the Company for purposes of
ERISA section 302(d)(8)(C); and each reference to the Company
includes its Subsidiaries.
(iii) An entity "MAINTAINS" an Employee Program if such
entity sponsors, contributes to, or provides benefits under such
Employee Program, or has any obligation (by agreement or under
applicable law) to contribute to or provide benefits under such
Employee Program, or if such Employee Program provides benefits to
or otherwise covers employees of such entity (or, in respect of
such employees, their spouses, dependents, or beneficiaries).
(iv) "MULTIEMPLOYER PLAN" means a (pension or non-pension)
employee benefit plan to which more than one employer contributes
and which is maintained pursuant to one or more collective
bargaining agreements.
4.15 PRIVATE OFFERING. No form of general solicitation or general
advertising, including, but not limited to, advertisements, articles, notices
or other communications, published in any newspaper, magazine or similar medium
or broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by any general solicitation or general advertising,
was used by the Company or any of its Subsidiaries or any of the Company's or
such Subsidiary's representatives, or, to the knowledge of the Company, any
other authorized Person acting on behalf of the Company or any of its
Subsidiaries, in connection with the transactions contemplated by this
Agreement, including, without limitation, the purchase of the Initial
Securities by the Purchasers. During the six months prior to the Closing,
neither the Company, any of its Subsidiaries nor any Person acting on the
Company's or such Subsidiary's behalf has directly or indirectly offered the
Initial Securities or the Notes, or any part thereof or any other similar
securities, for sale to, or sold or solicited any offer to buy any of the same
from, or otherwise approached or negotiated in respect thereof with any Person
or Persons other than the Purchasers and other investors who the Company
reasonably believed had knowledge and experience in financial and business
matters that they were capable of evaluating the merits and risks of purchasing
the Initial Securities and the Notes. The Company further represents that,
assuming the accuracy of the representations of the Purchasers as set forth in
section 5 hereof, neither the Company, any of its Subsidiaries nor any
authorized Person acting on the Company's or such Subsidiary's behalf has taken
or will take any action that would subject the purchase of the Initial
Securities by the Purchasers or the issue, sale and
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exchange of the Notes to the Purchasers to the provisions of section 5 of the
1933 Act. The Company has not sold the Notes to anyone other than the
Purchasers. During the six months prior to the Closing, no securities of the
same class or series as the securities comprising the Notes have been issued
and sold by the Company.
4.16 DISCLOSURE.
(a) The historical financial and operating information delivered to the
Purchasers has been derived from the consolidated books and records of the
Company and its Subsidiaries based upon reasonable methods as to allocations
and calculations of such financial information.
(b) There is no material fact known to the Company which the Company has
not disclosed to the Purchasers in writing which has or, insofar as the Company
can reasonably foresee, may have or will have a material adverse effect on the
Condition of the Company or a material adverse effect on the ability of the
Company to perform its obligations under any of the Related Documents or in
respect of the Securities or any document contemplated hereby or thereby,
including, without limitation, the Conversion.
4.17 EMPLOYMENT PRACTICES. Except as set forth on Schedule 4.17 hereto,
neither the Company nor any of its Subsidiaries is a party to or in the process
of negotiating any collective bargaining or labor agreement or union contract.
As of the date of this Agreement, there is no (a) charge, complaint or suit
pending (of which the Company has been served or is aware) or, to the knowledge
of the Company, threatened against the Company or any of its Subsidiaries
respecting employment, hiring for employment, terminating from employment,
employment practices, employment discrimination, terms and conditions of
employment, safety, wrongful termination, or wages and hours, (b) unfair labor
practice charge or complaint pending (of which the Company has been served or
is aware) or, to the knowledge of the Company, threatened against, or decision
or order in effect and binding on, the Company or any of its Subsidiaries
before or of the National Labor Relations Board, (c) grievance or arbitration
proceeding arising out of or under collective bargaining agreements pending (of
which the Company has been served or is aware) or, to the knowledge of the
Company, threatened against the Company or any of its Subsidiaries, (d) strike,
labor dispute, slow-down, work stoppage or other interference with work pending
(of which the Company has been served or is aware) or, to the knowledge of the
Company, threatened against the Company or its Subsidiaries, or (e) to the
knowledge of the Company, union organizing activities or union representation
question threatened or existing with respect to any groups of employees of the
Company or any of its Subsidiaries, which in the case of (a)-(e) above could be
reasonably expected to have a material adverse effect on the Condition of the
Company.
4.18 TRANSACTIONS WITH AFFILIATES. Except as disclosed in the SEC Reports,
there are no material transactions, agreements or understandings, existing
between or among the Company or any of its Subsidiaries and any of its officers
or directors or stockholders or any of their Affiliates of the sort requiring
disclosure under Item 404 of Regulation S-K
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except for standard arrangements related to compensation of such persons as
officers or directors.
4.19 LIMITATION ON SUBSIDIARY PAYMENT RESTRICTIONS. Except as set forth
on Schedule 4.19 hereto, neither the Company nor any of its Subsidiaries is
subject to any consensual restriction on the ability of any such Subsidiary (a)
to pay dividends or make any other distributions on such Subsidiary's equity
securities to, or pay any indebtedness owing to, or repurchase or redeem any of
such Subsidiary's equity securities from, the Company or any other Subsidiary
of the Company, (b) to make any loans or advances to the Company or any other
Subsidiary of the Company, or (c) to transfer any of its property or assets to
the Company or any other Subsidiary, except for such restrictions existing
under or by reasons of (i) the Indenture, the Notes, the Indenture governing
the Senior Notes (Other), the Senior Notes (Other), the Letter of Credit
Agreement, the IDB Letter of Credit, the Junior Subordinated Debenture
Indenture and the Junior Subordinated Debentures, (ii) the Collateral
Documents, and (iii) customary non-assignment provisions in leases and other
contracts entered into in the ordinary course of business and limitations
imposed by the terms of Permitted Encumbrances with respect to the assets
subject to such Permitted Encumbrances.
4.20 NO OTHER BUSINESS. The Company is not currently engaged in any
material respect in any business other than as described in the SEC Reports.
4.21 NO MARGIN REGULATION VIOLATION. None of the transactions
contemplated by the Related Documents, including, without limitation, the
Conversion, will violate or result in a violation of or subject the Purchasers
to making any filing under section 7 of the 1934 Act or any regulations issued
pursuant thereto, including, without limitation, Regulation G, Regulation T,
Regulation X and Regulation U or any other regulation of the Board of Governors
of the Federal Reserve System.
4.22 BROKERS AND FINDERS. Except as set forth on Schedule 4.22, the
Company has not employed any broker, finder, consultant or intermediary in
connection with the transactions contemplated by the Related Documents that
would be entitled to a broker's, finder's or similar fee or commission in
connection therewith.
4.23 HUNTWAY EQUITY SECURITIES. The Agreement of Limited Partnership of
the Company does not limit the number of Common Units of the Company that may
be issued. Except for actions required to be taken after the Conversion, which
will be taken at the time of Conversion, the Company has taken all requisite
action to authorize the issuance of the Huntway Equity Securities issuable on
conversion of the Notes. On issuance in accordance with the terms of the Notes
such Huntway Equity Securities will be duly and validly issued, fully paid and,
after the Conversion, nonassessable, and will be free of restrictions on
transfer other than restrictions on transfer under applicable Federal and state
securities laws and as provided herein.
4.24 NO DEFAULT. No Event of Default has occurred and is continuing.
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4.25 BANKERS TRUST/MASSACHUSETTS MUTUAL ACTIONS. No Initial Securities
Holder has engaged in any act or conduct or made any omission that would affect
the Purchasers' rights or obligations as the holder of any Securities or any
other claims against the Company nor will a Purchaser have any obligation to
the Initial Securities Holders with respect to the transactions contemplated
hereby as a result of any understanding or agreement between the Company and
any Initial Securities Holder.
5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. This Agreement is
made with each Purchaser in reliance upon the Purchaser's representations and
warranties to the Company, which by the Purchaser's acceptance hereof the
Purchaser represents and warrants severally as to itself, but not jointly as to
any other Purchaser, that:
5.1 INVESTMENT INTENT. The Purchaser is acquiring the Notes and the
Huntway Equity Securities issuable upon conversion of the Notes (collectively,
"SECURITIES") pursuant to this Agreement with the Purchaser's own funds for the
Purchaser's own account and not as a nominee or agent. Except as provided
herein, the Purchaser is not obligated to transfer any Securities to anyone
else nor does the Purchaser have any agreements or understandings to do so.
The Purchaser is purchasing the Securities for investment for an indefinite
period and not with a view to the sale or distribution of any Securities, by
public or private sale or other disposition except in compliance with the 1933
Act and applicable state securities laws, and the Purchaser has no intention of
selling, granting any participation in or otherwise distributing or disposing
of any Securities, except in compliance with the 1933 Act and applicable state
securities laws. The Purchaser does not intend to subdivide the Purchaser's
purchase of Securities with anyone. Notwithstanding the foregoing, the
Purchaser's right to sell or otherwise dispose of all or any part of the
Securities purchased by the Purchaser pursuant to an effective registration
statement under the 1933 Act or under an exemption available from such
registration available under the 1933 Act (including, without limitation, any
exemption available with respect to a distribution to its members) shall not be
prejudiced.
5.2 NO PUBLIC OFFERING. The Purchaser is able to bear the economic risk
of the Purchaser's investment in the Securities. The Purchaser is aware that
the Purchaser must be prepared to hold the Securities for an indefinite period
and that the Securities have not been registered under the 1933 Act or
registered or qualified under any state securities law, on the ground, among
others, that no distribution or public offering of Securities is to be effected
and Securities are being issued by the Company without any public offering
within the meaning of section 4(2) of the 1933 Act. The Purchaser has had an
opportunity to discuss the Company's business, management and financial affairs
with its management. The Purchaser is not subscribing for the Securities as a
result of or subsequent to any advertisement, article, notice, or other
communication published in any newspaper, magazine or similar media or
broadcast over television or radio or any solicitation of a subscription by a
Person not previously known to the Purchaser in connection with investments in
securities generally.
5.3 CERTIFICATES TO BE LEGENDED. The Purchaser understands that each
Security will bear a legend on the face thereof (or on the reverse thereof with
a reference to such
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legend on the face thereof) required by the SEC or a state securities
commission unless counsel for the Purchaser and counsel for the Company
determine that the Company is able to rely on the exemption from registration
of the transactions contemplated hereby set forth in section 3(a)(9) of the
1933 Act.
5.4 SECURITIES WILL BE "RESTRICTED SECURITIES". The Purchaser understands
that unless counsel for the Purchaser and counsel for the Company determine
that the Company is able to rely on the exemption from registration of the
transactions contemplated hereby set forth in section 3(a)(9) of the 1933 Act,
the Securities will be "restricted securities" as that term is defined in Rule
144 under the 1933 Act and, accordingly, that the Securities must be held
indefinitely unless they are subsequently registered under the 1933 Act or an
exemption from such registration is available.
5.5 ACCREDITED INVESTOR. The Purchaser has been advised or is aware of
the provisions of Regulation D under the 1933 Act relating to the accreditation
of investors, and the Purchaser is an "accredited investor" as defined in
Regulation D under the 1933 Act. Schedule 5.5 sets forth the provision of Rule
501(a) on which the Purchaser is relying to meet the definition of accredited
investor.
5.6 SOPHISTICATION OF THE PURCHASER. The Purchaser has such knowledge and
experience in financial and business matters that the Purchaser is capable of
evaluating the merits and risks of the Purchaser's investment contemplated by
this Agreement and has the capacity to protect the Purchaser's own interests.
5.7 BROKERS' FEES. No broker, finder or investment banker is entitled to
any brokerage, finder's or other fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf
of the Purchaser.
5.8 TITLE REPRESENTATION. The Purchaser has entered into a securities
purchase agreement with the Initial Securities Holders, a copy of which has
been provided to the Company, with respect to the Initial Securities. Except
as set forth in the next sentence, the Purchaser does not make any
representations or warranties regarding the title to the Initial Securities or
the absence of any Liens thereon. Notwithstanding the foregoing, the Purchaser
has not taken any action that would adversely affect its title to or create any
Lien on the Initial Securities.
5.9 EXISTING OWNERSHIP. Prior to the Closing, the Purchaser does not own
5% or more of the outstanding Common Units of the Company.
5.10 INSIDER TRADING. The Purchaser acknowledges that the Company is an
issuer with securities registered pursuant to the 1934 Act and that the
Purchaser's disclosure of nonpublic information regarding the Company or any
Subsidiary or the Purchaser's trading in the securities of the Company while in
possession of such information may, depending on the facts and circumstances,
subject the Purchaser to liability under the 1934 Act.
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6. COVENANTS. The Company hereby covenants as follows:
6.1 NOTICE. The Company shall promptly give written notice to the
Purchasers of:
(a) any change in the location of any place of business of the Company
or any Subsidiary or of the establishment of any new, or the discontinuation of
any existing, place of business;
(b) the declaration, setting aside or payment of any dividends (after
the Conversion) or other distributions in cash or property on the Company's
equity securities;
(c) any event that would cause section 4.12 to be inaccurate in any
material respect at any time after the date of this Agreement; and
(d) entering into or committing to enter into any transaction that is
material to the Condition of the Company, other than in the ordinary course of
its business.
6.2 ACCESS. The Company shall permit the Purchasers or such other
persons as the Purchasers may designate to visit and inspect any of the
properties of the Company and its Subsidiaries, to examine its books and
records and take copies and excerpts therefrom and to discuss its affairs with
their officers, employees and independent accountants during normal working
hours on Business Days following reasonable notice. Any such Person provided
access shall be required to sign a confidentiality agreement containing such
terms as are reasonable and customary.
6.3 INDEBTEDNESS. 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 Agreement and the IDB Letter of Credit;
(b) the Company may become and remain liable with respect to the
Senior Notes (Other), the Senior Notes (Sunbelt IDB) and the Junior Subordinated
Debentures;
(c) the Company and its Subsidiaries may become and remain liable
with respect to the Notes;
(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; provided that the crude oil or other asset so acquired
shall be included in the Collateral; and provided further that each such letter
of credit shall state that the issuer of such letter of credit
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has no Lien on any assets of the Company or its Subsidiaries except for cash
collateral, if any, relating to such letter of credit;
(e) the Company and its Subsidiaries may become and remain
liable with respect to hedging agreements relating to the price of crude oil;
(f) Sunbelt may remain liable with respect to the Sunbelt Bonds;
(g) the Company may become liable with respect to Capital
Leases to the extent otherwise permitted hereunder;
(h) the Company may become and remain liable with respect to
Indebtedness reflected on the financial statements of the Company included in
the Company's Form 10-Q for the six months ended June 30, 1997;
(i) the acquisition of supplies or inventory on normal trade
credit in the ordinary course of the business of the Company and its
Subsidiaries;
(j) Indebtedness incurred on commercially reasonable terms to
purchase or lease equipment at its fair market value in the ordinary course of
the business of the Company and its Subsidiaries; and
(k) in addition to Indebtedness permitted by clauses (a)
through (j) 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.
(l) extensions, renewals and replacements of any of the
foregoing Indebtedness; provided, however, (i) any such extension, renewal or
replacement obligation shall be on terms at least as favorable to the Company
or its Subsidiaries as the obligation being extended, renewed or replaced, and
(ii) the amount so extended, renewed or replaced shall be in an amount not
greater than the amount of the obligation extended, renewed or replaced.
6.4 COMPLIANCE WITH LAWS. The Company and each Subsidiary shall comply in
all material respects with all Laws to which they or their properties or assets
are or may become subject.
6.5 RESTRICTIONS ON DIVIDENDS AND OTHER PAYMENTS. The Company shall not,
and shall not permit any of its Subsidiaries to, directly or indirectly, (a)
declare or pay any dividend or make any distribution on Shares (as defined
below) to holders of such Shares, (b) purchase, redeem or otherwise acquire or
retire for value any Shares or any warrants, rights or options to purchase or
acquire Shares, except for Shares or options to acquire Shares owned by
employees or former employees of the Company that do not exceed 400,000 shares
in the aggregate (as such number is equitably adjusted for Share splits,
combination and dividends paid in Shares, subsequent to the date of this
Agreement) pursuant to arrangements approved by
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Huntway Managing General Partner or the Board of Directors of the Company; or
(c) make any principal payment on, purchase, defease, redeem, prepay, decrease
or otherwise acquire or retire for value, prior to any scheduled final
maturity, scheduled repayment or schedule sinking fund payment, any
Indebtedness of the Company or its Subsidiaries that is subordinate or junior
in right of payment to the Notes.
6.6 FINANCIAL STATEMENTS AND OTHER DELIVERY REQUIREMENTS. The Company
shall deliver the following to the Purchasers:
(a) promptly upon receipt thereof, copies of all reports submitted to
the Company or its Subsidiaries by independent public accountants in connection
with each 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;
(b) 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 generally 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 (other than Form
S-8), if any, and all other information and documents filed by the Company or
any of its Subsidiaries with any securities exchange or with the SEC 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;
(c) promptly upon any executive 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
6.01(5) of the Indenture, (iii) of a material adverse change in the Condition
of the Company, or (iv) that any holder of a material Lien has given any notice
to the Company or any Subsidiary of the Company or taken any other action with
respect to such material Lien intended to result in the foreclosure or
enforcement of such material Lien against the assets of the Company or any
Subsidiary, 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;
(d) promptly upon any executive officer of the Company obtaining knowledge
of (i) the institution of, or threat of, any material action, suit, proceeding,
governmental investigation or arbitration against or materially and adversely
affecting the Company or any of its Subsidiaries or any property of the Company
or any of its Subsidiaries, which constitutes a
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claim with a reasonable likelihood of success and which has not previously been
disclosed by the Company to the Purchasers, or (ii) any material development in
any such action, suit, proceeding, governmental investigation or arbitration
not previously disclosed to the Purchasers, the Company shall promptly given
notice thereof to the Purchasers and provide such other information as may be
reasonably available to the Company to enable the Purchasers and their counsel
to evaluate such matters;
(e) 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 a Purchaser; and
(f) together with each delivery of each quarterly report on Form 10-Q
and annual report on Form 10-K, (i) an Officers' Certificate stating that the
signers have reviewed the terms of this Agreement, the Indenture and the Notes
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) an Officer's Certificate demonstrating
in reasonable detail compliance at the end of each applicable accounting period
with the restriction contained in section 6.9.
6.7 RESTRICTIONS ON ACQUISITION OF SUBSIDIARIES. The Company will not,
nor will it permit any Subsidiary to, acquire or form any Subsidiaries without
the express prior written consent of Three-Fourths in Interest of the
Purchasers, which consent shall not be unreasonably withheld; provided that in
all cases the Purchasers and the other holders of the Notes (and the other
parties secured by Liens under the Amended Intercreditor Agreement and the
Collateral Documents) shall obtain a Lien under the Amended Intercreditor
Agreement and the Collateral Documents with respect to the stock and assets of
such Subsidiaries.
6.8 TRANSACTIONS WITH PARTNERS AND AFFILIATES. 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 Huntway Equity Securities, 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; (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
Huntway Equity Securities received under the Plan or the agreements executed in
connection with the Plan; (iii)
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Share acquisitions or retirements permitted by section 6.5(b); or (iv)
employment arrangements entered into by the Company in the ordinary course of
its business.
6.9 FINANCIAL COVENANTS. The Company will not permit Consolidated
EBITDA 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.
6.10 LIMITATION ON INVESTMENTS, LOANS AND ADVANCES. 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.
6.11 LIMITATION ON CONSOLIDATED CAPITAL EXPENDITURES. The Company will
not, and will not permit any of its Subsidiaries to make Consolidated Capital
Expenditures, except Consolidated Capital Expenditures in an amount not in
excess of $3,000,000 during each calendar year. With respect to the capital
expenditure limitations set forth above, the Purchasers will discuss with the
Company any necessary increases to the permitted level of capital expenditures
as a result of presently unanticipated remedial actions required by regulation
or law.
6.12 FUNDAMENTAL CHANGES ONLY ON CERTAIN TERMS. The Company will not,
and will not permit any of its Subsidiaries to, (i) amend the Huntway
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 Huntway
Partnership Agreement or the Sunbelt General Partner under the Sunbelt
Partnership Agreement, allow the Huntway Managing General Partner or the
Special General Partner to withdraw from the Huntway 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 (except pursuant to the Conversion), prior to
the Conversion allow Reprise to withdraw from either the Huntway Managing
General Partner partnership or the Special General Partner partnership, prior
to the Conversion add any Person as a general partner to the Huntway Managing
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, in each case, the express prior written consent of
Three-Fourths in Interest of the Purchasers; 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 Huntway
Partnership Agreement and that Sunbelt may alter the existence of the limited
partners of Sunbelt in
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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 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;
(b) 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 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; and (ii) the fair market value of assets sold in
any transaction or transactions otherwise permitted by this section 6.12(c)
shall not exceed $250,000 in the aggregate in any calendar year (except as
permitted in section 6.12(a) above);
(d) the Company may effect the Conversion; and
(e) the Company may merge or be consolidated with or transfer
substantially all of its business, property and assets to a corporation (for
example, on the Conversion); provided that (i) such corporation has at the time
of such merger, consolidation or transfer no liabilities other than those
transferred to it by the Company, (ii) on or before such merger, consolidation
or transfer, such corporation shall assume all obligations of the Company
hereunder and under the Collateral Documents (as "COLLATERAL DOCUMENTS" is
defined in the Amended Intercreditor Agreement).
Upon any consolidation or merger of the Company or any sale, lease,
conveyance or other disposition of all or substantially all of the assets of
the Company in accordance with this section 6.12, the successor formed by such
consolidation or into or with which the Company is merged or to which such
sale, lease, conveyance or other disposition is made, as the case may be, shall
succeed to, and be substituted for, and may exercise every right and power of,
the
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Company under this Exchange Agreement with the same effect as if such successor
person had been named as the Company herein.
6.13 CONTINGENT OBLIGATIONS. 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 with respect to the
Collateral, 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
$250,000 outstanding at any one time;
(c) the Company and its Subsidiaries may become and remain
liable with respect to additional letters of credit permitted under section
6.3(d);
(d) the Company and its Subsidiaries may become and remain
liable with respect to hedging agreements relating to the price of crude oil;
(e) the Company may become and remain liable with respect to its
guarantee of letters of credit issued on behalf of Sunbelt under the IDB Letter
of Credit and other obligations solely as a result of the Company being the
general partner of Sunbelt; and
(f) obligations arising under the Letter of Credit Agreement.
6.14 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 a Purchaser owning Notes with a
principal amount of at least $3.5 million may, from time to time and in its
sole and absolute discretion, upon obtaining knowledge of a Release of
Hazardous Materials or any violation of any Environmental Laws which has a
reasonable possibility of creating a material liability to the Company or
materially 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 reasonable best efforts (best
efforts need not include the payment of money or other consideration) to obtain
permission for such professional consultant to conduct its own investigation of
any Facility previously
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owned, leased, operated or used by the Company or any of its Subsidiaries. The
Company hereby grants to each Purchaser and its agents, employees, consultants
and contractors, the right to enter into 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 the Purchaser, 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 a Purchaser pursuant to
this section 6.14(b) will be obtained and shall be used by a Purchaser for that
Purchaser's internal business purposes, to monitor compliance with this
Agreement and to protect a Purchaser's security interests under the Collateral
Documents. 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 the Purchasers from any costs, losses or
liabilities relating to the Company's use of or reliance on such report, (ii)
the Purchasers do not make any representation or warranty with respect to such
report, and (iii) by delivering such report to the Company, the Purchasers are
not requiring or recommending the implementation of any suggestions or
recommendations contained in such report.
(c) The Company shall promptly advise the Purchasers in writing and in
reasonable detail of (i) any Release of any Hazardous Materials required to be
reported to any Authority under any applicable Environmental Laws that has a
reasonable probability of giving rise to a material adverse effect on the
Condition of the Company, (ii) any and all written communications with respect
to any Environmental Claim that has a reasonable probability of giving rise to
a material adverse effect on the Condition of the Company or with respect to
any Release of Hazardous Materials required to be reported to any Authority
that has a reasonable probability of giving rise to a material adverse effect
on the Condition of the Company, (iii) any remedial action taken by the 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 on the
Condition of the Company, or (y) any Environmental Claim that has a reasonable
probability of having a material adverse effect on the Condition of the
Company, (iv) the Company's discovery of any occurrence or condition on any
real property adjoining or in the vicinity of any Facility that has a
reasonable probability of causing such Facility or any part thereof to be
subject to any material restrictions on the ownership, occupancy,
transferability or use thereof under any Environmental Laws, and (v) any
written request for information from any Authority 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 Purchasers 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 on the Condition of the Company 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
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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 Purchasers may reasonably request in relation
to any matters disclosed pursuant to this section 6.14.
(f) The Company shall promptly take, and shall cause each of its
Subsidiaries promptly to take, any and all necessary investigatory and 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 a timely manner 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.
6.15 LETTER OF CREDIT AGREEMENT. The Company will not, without the
consent of Three-Fourths in Interest of the Purchasers, amend the Letter of
Credit Agreement or the IDB Letter of Credit or any replacement for it if any
such amendment would shorten the term of, or increase or decrease the amount of
credit under, the Letter of Credit Agreement or the IDB Letter of Credit or
such replacement, except that (i) the Company may separate the Letters of
Credit issued under the Letter of Credit Agreement from the IDB Letter of
Credit and (ii) the Company may increase the amount outstanding under the
Letter of Credit Agreement, exclusive of the IDB Letter of Credit, to not more
than $22,000,000.
6.16 DIRECTORS. The Company shall use its best efforts to nominate and
cause to be elected as a director of the Company one individual selected by B
III and one individual selected by Lighthouse at all times after the
Conversion. This covenant shall expire with respect to B III or Lighthouse
when such Purchaser no longer owns Notes with a principal amount of at least
$3.5 million or shares of Common Stock issued on conversion of Notes that had a
principal amount of at least $3.5 million or a combination of the two.
6.17 RIGHT OF FIRST OFFER.
(a) Subject to the terms and conditions specified in this section 6.17,
the Company hereby grants to each Purchaser a right of first offer with respect
to future sales
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by the Company of its Shares (as defined below) for cash. For purposes of this
section 6.17, the Purchaser includes any general partners, managers and
affiliates of a Purchaser. The Purchaser shall be entitled to apportion the
right of first offer hereby granted it among itself and its partners, members
and affiliates in such proportions as it deems appropriate.
(b) Each time the Company proposes to offer for cash any shares of, or
securities convertible into or exercisable for any shares of, any class of its
capital stock, including without limitation the Common Units of the Company if
the Company is a partnership and the Common Stock of the Company if the Company
is a corporation ("SHARES"), the Company shall first make an offering of such
Shares to each Purchaser in accordance with the following provisions:
The Company shall deliver a notice by certified mail ("NOTICE") to the
Purchasers stating (i) its bona fide intention to offer such Shares, (ii) the
number of such Shares to be offered, and (iii) the price and terms, if any,
upon which it proposes to offer such Shares.
(c) By written notification received by the Company, within 20 calendar
days after giving of the Notice, each Purchaser may elect to purchase or
obtain, at the price and on the terms specified in the Notice, up to that
portion of such Shares which equals the proportion that the number of shares or
units of Huntway Equity Securities issued to that Purchaser upon conversion of
the Notes acquired by that Purchaser pursuant to this Agreement and then held
by that Purchaser and/or issuable upon conversion of such Notes then held by
that Purchaser bears to the total number of shares or units of Huntway Equity
Securities of the Company then outstanding (assuming full conversion and
exercise of all convertible or exercisable securities).
(d) If all Shares which a Purchaser is entitled to obtain pursuant to
section 6.17(b) are not elected to be obtained as provided in section 6.17(c),
the Company may, during the 45-day period following the expiration of the
period provided in section 6.17(c), offer the remaining unsubscribed portion of
such Shares to any person or persons at a price not less than, and upon terms
no more favorable to the offeree than those specified in the Notice. If the
Company does not enter into an agreement for the sale of the Shares within such
period, or if such agreement is not consummated within 30 days of the execution
thereof, the right provided hereunder shall be deemed to be revived and such
Shares shall not be offered unless first reoffered to the Purchaser in
accordance herewith.
(e) The right of first offer in this section 6.17 shall not be
applicable (i) to the issuance or sale of Huntway Equity Securities (or options
therefor) to employees for the primary purpose of soliciting or retaining their
employment or compensating them, provided that each such issuance, sale or
option grant is approved by the Company's Board of Directors (or the Huntway
Managing General Partner, if prior to the Conversion), (ii) the issuance of
securities pursuant to the Conversion or exercise of convertible or exercisable
securities, (iii) the issuance of securities in connection with a bona fide
business acquisition of or by the Company, whether by merger, consolidation,
sale of assets, sale or exchange of stock or otherwise or (iv)
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the issuance of stock warrants or other securities or rights to persons or
entities with which the Company has business relationships provided such
issuances are for other than primarily equity financing purposes and are
approved by the Company's Board of Directors (or the Huntway Managing General
Partner, if prior to the Conversion).
(f) The Company shall not be required to comply with this section 6.17
with respect to any offer or sale that it reasonably believes would cause a
violation of section 5 of the 1933 Act and equivalent provisions under
applicable state securities laws.
6.18 CONVERSION TO CORPORATION. The Company agrees to use its best
efforts to convert to a corporation organized in the United States (the
"CONVERSION") on or before March 31, 1998. If the Company has not converted to
corporation by March 31, 1998, it shall not be considered an Event of Default,
but the interest rate on the Notes shall automatically be increased to 12% for
the period of time thereafter that the Company is not such a corporation,
without any notice being required to be made to the Company. The Conversion
shall be effected so that the exchange of Securities held by the Purchaser for
Securities of the corporation pursuant to that Conversion shall be exempt from
the provisions of section 16(b) of the 1934 Act pursuant to Rule 16b-7
thereunder (subject to Rule 16b-7(c)) and from the provisions of section 203 of
the Delaware General Corporation Law (or any similar provision of the Laws of
the jurisdiction where the corporation is organized.
6.19 SURVIVAL OF COVENANTS. The covenants contained in this section 6
shall be in addition to any covenants contained in the Indenture. They shall
only be rights of a Purchaser and only for as long as that Purchaser owns at
least $3.5 million principal amount of the Notes issued to it. The rights
under this section 6 are not assignable to any Person, including, without
limitation, any member of the Purchaser.
6.20 PAYMENT OF NOTES. The Company shall pay the principal of, and
premium, if any, and interest on, the Notes on the dates and in the manner
provided in the Notes. Holders must surrender their Notes to the Company to
collect principal payments. Principle, premium, or interest shall be
considered paid on the date due if, by 2:00 p.m. Eastern Time on such date, the
Company shall have executed wire transfers in immediately available funds
designated for and sufficient to pay such principal, premium or interest. To
the extent lawful, the Company shall pay interest on overdue principal, premium
and interest (without regard to any applicable grace period) at a rate equal to
1.0% per annum in excess of the then applicable interest rate on the Notes,
compounded semiannually.
6.21 STAY, EXTENSION AND USURY LAWS. The Company covenants (to the extent
that is may lawfully do so) that it will not at any time insist upon, plead, or
in any manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury Law wherever enacted, now or at anytime hereafter in force,
that might affect the covenants or the performance of its obligations under the
Related Documents; and the Company (to the extent it may lawfully do so) hereby
expressly waives all benefit or advantage of any such Laws, and covenants that
it will not, by resort to any such law, hinder, delay or impede the execution
of any power
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granted to the Purchasers pursuant to this Agreement, but will suffer and
permit the execution or every such power as though no such law has been
enacted.
6.22 INTEREST. In addition to any interest owing under the Notes, on
June 30, 1998, the Company shall pay to each Purchaser an amount equal to
interest that would have been earned on the Notes purchased by the Purchaser
for the period from October 1, 1997, to the Closing Date as if it had been
outstanding during that period, without interest.
7. CONFIDENTIALITY. Each Purchaser agrees with the Company as follows:
In connection with each Purchaser's consideration of the transactions
contemplated by this Agreement the Company has disclosed, and as a result of
compliance with the terms of this Agreement, the Management Rights Letter
and/or the Indenture the Company may disclose, information to the Purchaser
(all hereinafter "Information"). Each Purchaser agrees that it shall use its
reasonable efforts to maintain the confidence of all Information disclosed to
it, except that (i) the Purchaser may disclose any Information to any Person
with whom the Purchaser is discussing a potential sale of any Securities,
provided that such Person executes a confidentiality agreement substantially
similar to this paragraph in favor of the Company and (ii) to the extent that
the Purchaser is requested or required (by deposition, interrogatories,
subpoena or otherwise) as part of an action, suit, proceeding or investigation
by or before any court or Authority. Notwithstanding the foregoing,
"Information" excludes any of the foregoing that has entered the public domain
through no fault of the Purchaser, that an authorized executive officer of the
Company has authorized for public dissemination, that was known to or possessed
by the Purchaser prior to its discussion with the Company of the transactions
contemplated in this Agreement and other than through disclosure or delivery by
the Company, or that was learned or obtained by the Purchaser from sources
having no duty of confidentiality to the Company. A Purchaser may decline to
receive Information by providing written notice to the Company.
8. EVENTS OF DEFAULT AND REMEDIES.
8.1 EVENTS OF DEFAULT. In addition to the Events of Default provided
for in the Indenture, any one or more of the following shall constitute an
"EVENT OF DEFAULT":
(a) the Company fails to pay any principal owed under the Notes owned
by the Purchasers when due or fails to pay any interest owed under the Notes
owned by the Purchasers within five (5) days after such interest payment is due;
(b) the Company fails to observe or perform any covenant, condition or
agreement in any of this Agreement, the Notes or the Indenture as in effect
from time to time, which is not remedied within 30 days after a Purchaser
notifies the Company that such failure has occurred; provided that such 30 day
period shall be reduced by the number of days in excess of 10 days that any
senior officer of the Company knew of such failure, but shall in no event be
reduced to less than 20 days;
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(c) any representation or warranty made by the Company in this
Agreement shall prove to have been false, incorrect, incomplete or misleading
in any material respect when made or deemed made, such representation or
warranty continues to be material and the Company shall fail to correct the
fact or circumstance which made such representation or warranty false,
incorrect, incomplete or misleading within 30 days after a Purchaser notifies
the Company of such misrepresentation; provided that such 30 day period shall
be reduced by the number of days in excess of 10 days that any senior officer
knew the information that caused such representation or warranty to be false,
incorrect, incomplete or misleading in such material respect, but shall in no
event be reduced to less than 20 days;
8.2 ACCELERATION. If any one or more of the foregoing Events of
Default occur, in addition to the rights that the Purchasers shall have under
the Indenture on the occurrence of an Event of Default as defined in the
Indenture, the Purchasers shall be able to accelerate payment under the Notes
as follows:
(a) If an Event of Default occurs and is continuing (other than an
Event of Default under section 8.1(a)) , the holders of at least 25% in
principal amount of the then outstanding Notes owned by the Purchasers (which
represents an aggregate principal amount of at least $3.5 million) may declare
all outstanding Notes held by such holder to be due and payable immediately
and, upon such declaration, the principal amount of, and premium, if any, and
any accrued and unpaid interest on, all such Notes, to the date of payment
shall be due and payable immediately.
(b) The holder of a majority in aggregate principal amount of the then
outstanding Notes owned by the Purchasers by notice to the Company may rescind
any declaration of acceleration of such Notes under section 8.2(a) and its
consequences if (i) the rescission would not conflict with any judgment or
decree, (ii) if all existing Defaults and Events of Default (other than the
nonpayment of principal of, or premium, if any, or interest on, the Notes which
shall have become due by such declaration) shall have been cured or waived, and
(iii) the Company has delivered to the holders an Officers' Certificate to the
effect of clauses (i) and (ii) above.
9. EXPENSES. Whether or not the transactions contemplated by this
Agreement are consummated, the Company will pay the reasonable fees and
expenses of Shartsis, Friese & Ginsburg LLP up to $90,000 (or such greater
amount that the Company agrees is reasonable under the circumstances) and
Goodwin, Proctor & Hoar up to $20,000 (or such greater amount that the Company
agrees is reasonable under the circumstances), special counsel to the
Purchasers, in connection with the preparation, negotiation and execution of
the Related Documents and the reasonable costs of perfecting the Purchasers'
security interest in the Collateral.
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10. INDEMNIFICATION.
10.1 INDEMNITY BY THE COMPANY. The Company covenants and agrees that
it will indemnify and hold harmless each Purchaser, and its members, managers,
shareholders, partners, officers, directors, employees, affiliates and agents
and their respective successors and assigns (collectively the "INDEMNITEES"),
from and after the date of this Agreement, against any and all losses, damages,
assessments, fines, penalties, adjustments, liabilities, claims, deficiencies,
costs, expenses (including specifically, but without limitation, reasonable
attorneys' fees and expenses of investigation) and expenditures, including,
without limitation, any "Environmental Site Losses" (as defined below)
identified by an Indemnitee in a Claims Notice (as defined below) or asserted
by an Indemnitee in litigation commenced against the Company, with respect to
each of the following contingencies (all, the "INDEMNITY EVENTS"):
(a) Any misrepresentation, breach of warranty, or nonfulfillment of
any agreement or covenant on the part of the Company pursuant to the terms of
this Agreement or any misrepresentation in or omission from any Exhibit,
Schedule, list, certificate, or other instrument furnished or to be furnished
by the Company to any Purchaser pursuant to the terms of this Agreement,
regardless of whether, in the case of a breach of a representation or a
warranty, a Purchaser relied on the truth of such representation or warranty or
had any knowledge of any breach thereof.
(b) The design, development, construction or operation of, or
transportation of waste materials for treatment or disposal at, any Facility or
any other "Environmental Site" as hereinafter defined, or the installation or
operation of an underground storage tank at a Facility or Environmental Site.
As used in this Agreement, "ENVIRONMENTAL SITE" shall mean any Facility, any
underground storage tank and any other waste storage, processing, treatment or
disposal facility, and any other business site or any other real property,
owned, leased, controlled or operated by the Company or by any predecessor
thereof, provided however, as to activities of such predecessors, only to the
extent that the Company had knowledge of such activities. As used in this
Agreement, "ENVIRONMENTAL SITE LOSSES" shall mean any and all losses, damages
(including exemplary damages and penalties), liabilities, claims, deficiencies,
costs, expenses, and expenditures (including, without limitation, expenses in
connection with site evaluations, risk assessments and feasibility studies)
arising out of or required by an interim or final judicial or administrative
decree, judgment, injunction, mandate, interim or final permit condition or
restriction, cease and desist order, abatement order, compliance order, consent
order, clean-up order, exhumation order, reclamation order or any other
remedial action that is required to be undertaken under federal, state or local
law in respect of operating activities on or affecting any Facility, any
underground storage tank at a Facility or Environmental Site or any other
Environmental Site, including, but not limited to (x) any actual or alleged
violation of any law or regulation respecting the protection of the
environment, including, but not limited to, RCRA or any other Environmental Law
and (y) any remedies or violations, whether by a private or public action,
alleged or sought to be assessed as a consequence, directly or indirectly, of
any Release of Hazardous Materials from any Facility, any underground storage
tank at a Facility or Environmental Site or any other Environmental
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Site resulting from activities thereat, whether such Release is into the air,
water (including groundwater) or land and whether such Release arose before,
during or after the Closing.
(c) All actions, suits, proceedings, demands, assessments,
adjustments, costs and expenses incident to any of the foregoing or in
connection with the enforcement of rights hereunder.
10.2 NOTICE OF INDEMNITY CLAIM.
(a) In the event that any claim ("CLAIM") is hereafter asserted
against or arises with respect to any Indemnitee as to which such Indemnitee
may be entitled to indemnification hereunder, the Indemnitee shall notify the
Company in writing (the "CLAIMS NOTICE") of (i) receipt of written notice of
commencement of any third party litigation against such Indemnitee, within 10
days after receipt of such written notice, or (ii) receipt by such Indemnitee
of written notice of any other third party claim pursuant to an invoice, notice
of claim or assessment, against such Indemnitee, within 30 days after receipt
of such written notice. The Claims Notice shall describe the Claim and the
specific facts and circumstances in reasonable detail, and shall indicate the
amount, if known, or an estimate, if possible, of the losses that have been or
may be incurred or suffered by the Indemnitee. The failure to timely notify
the Company in accordance with this section 10.2(a) shall not relieve the
Company from the obligation to indemnify hereunder, except to the extent that
the Company establishes by competent evidence that it has been prejudiced
thereby.
(b) If, within 30 days of the Company's receipt of a Claims Notice,
the Company shall not have notified the Indemnitee of its election to assume
the defense, the Indemnitee shall have the right to assume control of the
defense and/or compromise of such Claim, and the costs and expenses of such
defense, including reasonable attorneys' fees, shall be added to the Claim. If
the Indemnitee does not elect to assume the defense of any Claim, the
Indemnitee may give written notice to the Company of its or his intent not to
do so, in which event the Company shall assume control of the defense and/or
compromise of such Claim. Notwithstanding anything in this section 10 to the
contrary, if the Company assumes the defense of any Claim, the Indemnitee shall
have the right to participate, at its or his expense, in the defense against or
compromise of such Claim.
(c) The party assuming the defense of any Claim shall keep the
other party reasonably informed at all times of the progress and development
of its or their defense of and compromise efforts with respect to such Claim
and shall furnish the other party with copies of all relevant pleadings,
correspondence and other papers. In addition, the parties to this Agreement
shall cooperate with each other and make available to each other and their
representatives all available relevant records or other materials required by
them for their use in defending, compromising or contesting any Claim.
(d) In the event both the Indemnitee and the Company are named as
defendants in an action or proceeding initiated by a third party, they shall
both be represented
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by the same counsel (on whom they shall agree), unless such counsel for the
Indemnitee, or the Company shall determine that such counsel has a conflict of
interest in representing both the Indemnitee and the Company in the same action
or proceeding and the Indemnitee and the Indemnifying Party do not waive such
conflict to the satisfaction of such counsel.
10.3 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. The
representations and warranties of the parties contained in this Agreement and
in any certificate, Exhibit or Schedule delivered pursuant hereto, or in any
other writing delivered pursuant to the provisions of this Agreement (the
"REPRESENTATIONS AND WARRANTIES") and the liability of the party making such
Representations and Warranties for breaches thereof shall survive the
consummation of the transactions contemplated hereby (including, but not
limited to, the conversion of the Notes into Huntway Equity Securities and the
Conversion). The parties hereto in executing and delivering and in carrying
out the provisions of this Agreement are relying solely on the representations,
warranties, Schedules, Exhibits, agreements and covenants contained in this
Agreement, or in any writing or document delivered pursuant to the provisions
of this Agreement, and not upon any representation, warranty, agreement,
promise or information, written or oral, made by any persons other than as
specifically set forth herein or therein.
11. MISCELLANEOUS
11.1 POWERS AND RIGHTS NOT WAIVED; REMEDIES CUMULATIVE. No delay or
failure on any Purchaser's part in the exercise of any power or right shall
operate as a waiver thereof, nor shall any single or partial exercise of the
same preclude any other or further exercise thereof or the exercise of any
other power or right, and the Purchasers' rights and remedies are cumulative to
and are not exclusive of any rights or remedies the Purchasers would otherwise
have, and no waiver or consent given or extended pursuant hereto shall extend
to or affect any obligation or right not expressly waived or consented to.
11.2 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and Three-Fourths
in Interest of the Purchasers. Any amendment or waiver effective in accordance
with this section 11.2 shall be binding upon each holder of any Notes or
Huntway Equity Securities, each future holder of all such Notes or Huntway
Equity Securities and the Company.
11.3 NOTICES. Any notice, consent, authorization or other communication
to be given hereunder shall be in writing and shall be deemed duly given and
received when delivered personally by facsimile transmission or three days
after being mailed by first class mail, or the next Business Day after being
deposited for next-day delivery with a nationally recognized overnight delivery
service, charges and postage prepaid, properly addressed to the party to
receive such notice at the following address for such party (or at such other
address as shall be specified by like notice):
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(a) if to the Company, to:
Huntway Partners, L.P.
25129 The Old Road 322
Newhall, CA 91381
Attention: Warren Nelson
Telephone: (805) 254-1220
Facsimile: (805) 286-1588
with copies to:
Kirkland & Ellis
200 East Randolph Drive
Chicago, IL 60601
Attention: Brian Hogan
Telephone: (312) 861-2000
Facsimile: (312) 861-2200
(b) if to the Purchasers, to the address set forth below
their signature on this Agreement, with a copy to:
Shartsis, Friese & Ginsburg LLP
One Maritime Plaza, 18th Floor
San Francisco, CA 94111
Attention: Eric M. Sippel, Esq.
Telephone: (415) 421-6500
Facsimile: (415) 421-2922
11.4 ENTIRE AGREEMENT. This Agreement (including the Schedules and
Exhibits), and the Related Documents contain the entire agreement of the
parties and supersede all prior negotiations, correspondence, agreements and
understandings, written and oral, between or among the parties, regarding the
subject matter hereof.
11.5 SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective permitted successors and
assigns (excluding each successive holder or holders of a Note or Huntway
Equity Securities, except to the extent otherwise expressly provided herein).
11.6 SEVERABILITY. If any provision of this Agreement, or the
application of such provision to any Person or circumstance, shall be held
invalid or unenforceable, the remainder of this Agreement, or the application
of such provision to Persons or circumstances other than those to which it is
held to be invalid or unenforceable, shall not be affected thereby.
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11.7 GOVERNING LAW. This Agreement shall be governed by and construed and
interpreted in accordance with the Law of the State of California, without
regard to that state's conflict of laws principles.
11.8 INTERPRETATION. All parties have been assisted by counsel in the
preparation and negotiation of this Agreement and the transactions contemplated
hereby, and this Agreement shall be construed according to its fair language.
The rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this
Agreement.
11.9 FURTHER ASSURANCES. Each party shall execute such other and further
certificates, instruments and other documents as may be necessary and proper to
implement, complete and perfect the transactions contemplated by this
Agreement.
11.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall constitute an original, and all of which
together shall be considered one and the same agreement.
11.11 ASSIGNMENT. A Purchaser may assign or transfer all or any part of
the Securities provided that the conditions specified in this section are
satisfied, which conditions are intended to insure compliance with the
provisions of the 1933 Act and state securities laws in respect of the transfer
of any of the Securities. If, in the written opinion of counsel for such
holder, in form and substance reasonably satisfactory to the Company and its
counsel, the proposed transfer may be effected without registration of such
Securities, the Securities proposed to be transferred may be transferred in
accordance with the terms of said notice and in compliance with applicable
securities laws and regulations. The Company shall not be required to effect
any such transfer prior to the receipt of such favorable opinion. If a
Purchaser transfers any interest in the Notes, that Purchaser shall transfer
that Purchaser's related interest in the Amended Intercreditor Agreement and
the Collateral Documents. The Company shall not assign this Agreement or any
rights hereunder or delegate any duties hereunder except pursuant to the
Conversion. Any attempted or purported assignment or delegation in violation
of the preceding sentence shall be void.
11.12 MAXIMUM INTEREST RATE. In no event shall the interest rate and
other charges under this Agreement and the Note exceed the highest rate
permissible under any law that a court of competent jurisdiction shall, in a
final determination, deem applicable hereto. In the event that a court
determines that a Purchaser has received interest and other charges under this
Agreement in excess of the highest permissible rate applicable hereto, such
excess shall be deemed received on account of, and shall automatically be
applied to reduce, the outstanding principal amount under the Note and the
provisions hereof shall be deemed amended to provide for the highest
permissible rate. If there is no outstanding principal amount thereof, that
Purchaser shall refund such excess to the Company.
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11.13 NO PERSONAL LIABILITY. Each Purchaser agrees that no director,
officer, employee, partner, interest holder or shareholder of the Company or of
either Huntway General Partner shall be liable to that Purchaser pursuant to
the Delaware Revised Uniform Limited Partnership Act or otherwise for any
obligation under the Related Documents or the Notes. The Company agrees that
no director, officer, employee, partner, interest holder, member or shareholder
of any Purchaser or any manager or general partner of any Purchaser shall be
liable to the Company pursuant to the Delaware Revised Uniform Limited
Partnership Act or otherwise for any obligation under the Related Documents or
the Notes.
12. DEFINITIONS.
12.1 GLOSSARY. For purposes of this Agreement, the following terms
shall have the following meanings, which shall be equally applicable to both the
singular and plural forms of any of such terms. Capitalized terms not
otherwise defined in this Agreement shall have the meanings ascribed to them in
the Indenture.
"AFFILIATE" shall mean any Person (a) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or is under
common control with, the Company or any Subsidiary, (b) which beneficially owns
or holds five percent or more of any equity or capital interest of the Company
or any Subsidiary, (c) five percent or more of the equity or capital interest
of which is beneficially owned or held by the Company or a Subsidiary or (d)
which is a natural person who is a relative of any of the foregoing Persons.
The term "CONTROL" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting stock, as an officer or director, by
contract or otherwise.
"AUTHORITY" shall mean any government or political subdivision, or any
agency, authority, bureau, central bank, commission, department or
instrumentality of either, or any court, tribunal, grand jury, arbitrator or
mediator, or any self-regulatory organization (including, without limitation,
any securities market or exchange on which securities of the Company are listed
or traded) in each case whether federal, state, local or foreign.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday,
statutory holiday, or other day on which banks in the State of California are
required by law to close or are customarily closed.
"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
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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.
"CHARTER DOCUMENT" of a company means the limited partnership agreement,
with respect to a limited partnership, the operating or limited liability
company agreement, with respect to a limited liability company, the articles or
certificate of incorporation and the bylaws, with respect to a corporation, and
any other governing documents in effect with respect to that company.
"COLLATERAL" has the meaning ascribed to that term in the Amended
Intercreditor Agreement.
"COLLATERAL DOCUMENTS" has the meaning ascribed to that term in the
Amended Intercreditor Agreement.
"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 Capital 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.
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"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.
"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, except for the Conversion, 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.
"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
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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.
"DISCLOSURE DOCUMENTS" means (i) the Schedule of Exceptions attached
hereto, (ii) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996, (iii) the Company's Quarterly Report on Form 10-Q for the
six months ended June 30, 1997, and (iv) the Private Placement Memorandum.
"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 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/or Environmental Laws 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" shall mean the Employee Retirement Income Security Act of 1974, as
amended, and the regulations thereunder.
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"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.
"GAAP" shall mean generally accepted accounting principles (as such
principles may change from time to time).
"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.
"HUNTWAY EQUITY SECURITIES" shall mean the Common Units of the Company,
for as long as the Company is a limited partnership, and the Common Stock of
the Company after the Company has converted to a corporation.
"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 Huntway Partnership Agreement.
"HUNTWAY MANAGING GENERAL PARTNER" means Huntway Managing Partner L.P., a
Delaware limited partnership, and its permitted successors and assigns.
"HUNTWAY PARTNERSHIP AGREEMENT" means the Amended and Restated Agreement
of Limited Partnership of Huntway Partners, L.P. dated as of November 9, 1988,
among the General Partner and each of the other partners named therein or bound
thereby, as amended
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through and including the date hereof and as further amended or restated from
time to time to the extent permitted under section 6.12.
"IDB LETTER OF CREDIT" means that certain Irrevocable Letter of Credit No.
S04377 dated October 5, 1988, in the original stated amount of $9,510,411.00
issued by Bankers Trust Company to the trustee under that certain Indenture of
Trust, dated August 1, 1988, pursuant to which the Sunbelt Bonds were issued.
"INDEBTEDNESS," 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.
"JUNIOR SUBORDINATED DEBENTURES" means the Company's Junior Subordinated
Debentures Due 2005 issued and outstanding on the Closing Date or issued to the
holders of such debentures as payment in kind in lieu of a cash payment for
interest, in each case pursuant to the Junior Subordinated Debenture Indenture.
"JUNIOR SUBORDINATED DEBENTURE INDENTURE" means the Amended and Restated
Junior Subordinated Debenture Indenture, dated as of December 12, 1996, between
the Company and the trustee named therein, pursuant to which the Junior
Subordinated Debentures are issued, as such indenture may be amended,
supplemented or modified from time to time to the extent permitted by the
Indenture.
"LAW" shall mean any judgment, decree, order, statute, law, ordinance,
rule or regulation of any Authority (including common law), constitution,
statute, treaty, regulation, rule, ordinance, judgment, order, foreign
injunction, writ, decree or award of any Authority.
"LETTER OF CREDIT AGREEMENT" means the Letter of Credit and Reimbursement
Agreement, dated June 22, 1993, between the Company, Sunbelt Refining Company,
L.P., and Bankers Trust Company, as amended by that certain First Amendment to
Letter of Credit and Reimbursement Agreement dated as of December 12, 1996, and
as such agreement may be further amended from time to time.
"LIEN" means any mortgage, pledge, hypothecation, assignment for security,
deposit arrangement, encumbrance, lien (statutory or other), or preference,
priority or other 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
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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.
"OFFICERS' CERTIFICATE" means a certificate signed on behalf of the
Company by two executive officers of the Company, including the Chief Financial
Officer or the Controller as one of the two signatories.
"PERMITTED ENCUMBRANCES" means the following types of Liens:
(i) Liens for taxes, assessments, governmental charges or claims which
are being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted;
(ii) Statutory and contractual 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'
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) Leases or subleases granted to others not interfering in any
material respect with the business of the Company or any of its Subsidiaries;
(v) Liens incurred or deposits made to secure the performance of tenders,
bids, leases, statutory obligations, surety and appeal bonds, government
contracts, performance and return-of-money bonds and other obligations of a
like nature (exclusive of obligations for the payment of borrowed money);
(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) Purchase Money Liens;
(viii) Liens securing reimbursement obligations with respect to letter of
credit which encumber only documents and other property relating to such
letters of credit and the products and proceeds thereof;
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(ix) Judgment and attachment Liens not giving rise to an Event of Default;
(x) Liens encumbering deposits made to secure obligations arising from
statutory, regulatory, contractual or warranty requirements of the Company or
its Subsidiaries;
(xi) Liens arising out of consignment or similar arrangements for the sale
of goods entered into by the Company or any of its Subsidiaries in the ordinary
course of business of the Company and its Subsidiaries;
(xii) Any interest or title of a lessor or sublessor in the property
subject to any capital lease obligation or operating lease;
(xiii) Liens arising from UCC financing statements regarding leases
permitted by this Agreement;
(xiv) 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;
(xv) Liens securing obligations not in excess of $50,000 in aggregate
outstanding amount arising from automobile and personal property leases; and
(xvi) Liens arising from Indebtedness permitted under section 6.3(e).
"PERSON" shall mean a natural person, corporation, partnership, trust,
unincorporated association, joint venture, joint-stock company, limited
liability company, Authority, or any other entity.
"PLAN" means the Plan of Reorganization in the chapter 11 case of the
Company confirmed by the Honorable Helen S. Balich, United States Bankruptcy
Judge for the United States Bankruptcy Court for the District of Delaware, in
case no. 96-1799, by order entered December 12, 1996, as such plan has been
amended prior to its effective date.
"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.
"PRIVATE PLACEMENT MEMORANDUM" shall mean the Company's Private Placement
Memorandum, dated as of June 1997.
"PURCHASE MONEY LIEN" means a Lien granted on an asset or property to
secure a Purchase Money Obligation permitted to be incurred under section 6.3
of this Agreement and incurred solely to finance the acquisition of such asset
or property; provided, however, that such Lien encumbers only such asset or
property and is granted within 180 days of such acquisition.
42
<PAGE> 47
"PURCHASE MONEY OBLIGATIONS" of any person means any obligations of such
person to any seller or any other person incurred or assumed to finance the
acquisition of real or personal property to be used in the business of such
person or any of its Subsidiaries in an amount that is not more than 100% of
the cost of such property, and incurred within 180 days after the date of such
acquisition (excluding accounts payable to trade creditors incurred in the
ordinary course of business).
"RELATED DOCUMENTS" shall mean this Agreement, the Notes, the Amended
Intercreditor Agreement, the Sequencing and Amendatory Agreement, the
Collateral Documents, the Indenture, the Registration Rights Agreement and the
Management Rights Letter.
"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.
"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.
"SENIOR NOTES (OTHER)" means the Company's 12% Senior Secured Notes
(Other) Due 2005 issued and outstanding on the Closing Date and any such Notes
issued in substitution therefor.
"SENIOR NOTES (SUNBELT IDB)" means the Company's 12% Senior Secured Notes
(Sunbelt IDB) Due 2005 issued and outstanding on the Closing Date and any such
Notes issued in substitution therefor.
"SEC" shall mean the Securities and Exchange Commission.
"SPECIAL GENERAL PARTNER" means Huntway Holdings, L.P., a Delaware limited
partnership.
"SUBSIDIARY" of a Person shall mean 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 such 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.
43
<PAGE> 48
"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 the Second Amended and Restated
Agreement of Limited Partnership, dated as of December 27, 1989, 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
6.12, or otherwise with the consent of Three-Fourths in Interest of the
Purchasers, which consent in such other cases will not be unreasonably
withheld.
"TAX" or "TAXES" shall be understood to include any tax or similar
governmental charge, impost or levy (including, without limitation, income
taxes, franchise taxes, transfer taxes or fees, sales taxes, excise taxes, ad
valorem taxes, withholding taxes, minimum taxes, use taxes, occupancy taxes,
property taxes, employment taxes, stamp taxes or windfall profit taxes),
together with any related liabilities, penalties, fines, additions to tax or
interest, imposed by the United States or any state, county, local or foreign
government or subdivision or agency therefor.
"THREE-FOURTHS IN INTEREST OF THE PURCHASERS" on any date means Purchasers
who in the aggregate own Notes on that date that aggregate at least
seventy-five percent of the Notes owned by all Purchasers on that date.
"1933 ACT" shall mean the Securities Act of 1933, as amended.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as amended.
44
<PAGE> 49
12.2 INDEX. The following terms shall have the respective meanings
specified on the indicated page of this Agreement:
<TABLE>
<S> <C>
accredited investor.................................................... 16
Agreement.............................................................. 1
Amended Intercreditor Agreement........................................ 2
B III.................................................................. 1
Balance Sheet.......................................................... 6
Cash Purchaser......................................................... 1
Claim.................................................................. 31
Claims Notice.......................................................... 31
Closing................................................................ 2
Closing Date........................................................... 2
Code................................................................... 10
Collateral Documents................................................... 22
Company................................................................ 1
Company IP Rights...................................................... 6
Condition of the Company............................................... 3
Contrarian I........................................................... 1
Contrarian II.......................................................... 1
control................................................................ 35
Conversion............................................................. 27
Environmental Site..................................................... 30
Environmental Site Losses.............................................. 30
Event of Default....................................................... 28
Exchanging Purchaser................................................... 1
Exhibit................................................................ 1
Financials............................................................. 5
First Plaza............................................................ 1
IBM.................................................................... 1
Indemnitees............................................................ 30
Indemnity Events....................................................... 30
Indenture.............................................................. 2
Information............................................................ 28
Initial Securities..................................................... 1
Initial Securities Holders............................................. 1
License................................................................ 7
Lighthouse............................................................. 1
Management Rights Letter............................................... 3
Notes.................................................................. 1
Notice................................................................. 26
Oppenheimer I.......................................................... 1
Oppenheimer II......................................................... 1
Oppenheimer III........................................................ 1
</TABLE>
45
<PAGE> 50
<TABLE>
<S> <C>
Oppenheimer IV......................................................... 1
Oppenheimer V.......................................................... 1
prohibited transaction................................................. 11
Purchase Price......................................................... 2
Purchaser.............................................................. 1
RCRA................................................................... 7
Registration Rights Agreement.......................................... 2
Representations and Warranties......................................... 32
restricted securities.................................................. 16
Schedule............................................................... 1
SEC Reports............................................................ 5
Securities............................................................. 15
Sequencing and Amendatory Agreement.................................... 3
Shares................................................................. 26
Trustee................................................................ 2
</TABLE>
46
<PAGE> 51
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first set forth above.
HUNTWAY PARTNERS, L.P.
By /s/ Warren J. Nelson
-------------------------------------
Name: Warren J. Nelson
Title: Executive Vice President and
Chief Financial Officer
LIGHTHOUSE INVESTORS, L.L.C. B III CAPITAL PARTNERS, L.P.
By Lighthouse Capital, LLC, By DDJ Capital III, LLC, its General
its Manager Partner
By /s/ Richard S. Spencer By DDJ Capital Management, LLC,
-------------------------- Manager
Richard S. Spencer III
Manager By /s/ Judy K. Mencher
-------------------------------------
200 Seventh Avenue, Suite 105 Name: Judy K. Mencher
Santa Cruz, CA 95062 Title: Member
Telephone: (408) 477-4046 Domestic Physical Delivery Instructions:
Facsimile: (408) 479-3642 ----------------------------------------
Goldman Sachs & Co.
48th Floor
One New York Plaza
New York, NY 10004
Attn: Marjory Boliscar
Phone: (212) 902-8058
Fax: (212) 357-0413
All securities should be registered as
follows:
Goldman Sachs & Company
FFC B III Capital Partners, L.P.
47
<PAGE> 52
CONTRARIAN CAPITAL FUND I, L.P. CONTRARIAN CAPITAL FUND II, L.P.
By Contrarian Capital By Contrarian Capital
Management L.L.C., Management L.L.C.,
its general partner its general partner
By: /s/ Janice M. Stanton By: /s/ Janice M. Stanton
--------------------- ---------------------
Janice M. Stanton Janice M. Stanton
Partner Partner
Address: 411 West Putnam, Address: 411 West Putnam,
Suite 225 Suite 225
Greenwich, CT Greenwich, CT
06830 06830
Telephone: (203) 862-8201 Telephone: (203) 862-8201
Facsimile: (203) 629-1977 Facsimile: (203) 629-1977
CONTRARIAN CAPITAL ADVISORS,
L.L.C., as agent for the entities MELLON BANK, N.A., solely in its
listed below its signature attached capacity as Trustee for First Plaza
hereto. Group Trust (as directed by
Contrarian Capital not in its
By: /s/Janice M. Stanton individual capacity.
--------------------
Janice M. Stanton
Partner By: /s/ Carole Bruno
----------------
Address: 411 West Putnam Name: Carole Bruno
Suite 225 Authorized Signatory
Greenwich, Ct Address:-----------------------
06830 -----------------------
Telephone:---------------------
Oppenheimer Horizon Partners, L.P. Facsimile:---------------------
Oppenheimer Institutional Horizon
Partners, L.P.
Oppenheimer International Horizon
Fund II, Ltd.
Oppenheimer & Co., Inc.
The & Trust
48
<PAGE> 53
THE CHASE MANHATTAN BANK As
Directed Trustee For The IBM Retirement
Plan Trust
By: See Rider 1
---------------------------------------
Michael Rolling, Vice President
The Chase Manhattan Bank as Directed
Trustee for the IBM Retirement Plan
Trust
Address: ___________________________
Telephone: ___________________________
Facsimile: ___________________________
<PAGE> 54
RIDER 1
Exchange and Purchase Agreement dated as of October 31, 1997
among Huntway Partners, L.P. and the Buyers
The Chase Manhattan Bank has executed this Agreement in its capacity as Trustee
("Trustee") of the IBM Retirement Plan Trust ("Trust") acting hereunder in such
capacity pursuant to the directions of Budge Collins, Inc., as Investment
Manager as such term is defined in ERISA ("Investment Manager"), in accordance
with the terms of the Trust and without limiting the generality of the
foregoing, any representations or statements made herein have been made for and
on behalf of the Trust in accordance with the directions of the Investment
Manager. Not withstanding any other provision of the Agreement, all actions to
be taken by or notices to be given to the Trust shall be taken by or given to
the Investment Manager.
By: /s/ Michael L. Rohling Date: 10/31/97
---------------------------- ------------
MICHAEL L. ROHLING, VICE PRESIDENT
CHASE MANHATTAN BANK
AS DIRECTED TRUSTEE FOR
THE IBM RETIREMENT PLAN TRUST
<PAGE> 55
EXCHANGE SCHEDULE
<TABLE>
<S> <C>
Common Units of Huntway Partners, L.P.:
- ---------------------------------------
Lighthouse 6,147,827
B III 3,912,253
Contrarian I 349,308
Contrarian II 349,308
- ------------- ----------
TOTAL 10,758,696
==========
Principal Amount Outstanding of 12% Senior Notes (Other):
- ---------------------------------------------------------
Lighthouse $6,403,907
B III $4,075,214
Contrarian I $363,858
Contrarian II $363,859
- ------------- -----------
TOTAL $11,206,838
===========
Principal Amount of Notes to be Issued to Exchanging Purchasers: (1)
- --------------------------------------------------------------------
Lighthouse $11,000,000
B III $7,000,000
Contrarian I $625,000
Contrarian II 625,000
- ------------- -----------
TOTAL $19,250,000
===========
</TABLE>
(1) One dollar of principal amount of Notes is to be issued for each one
dollar principal amount of Senior Notes (Other) and the balance of the Notes
to be issued to each Exchanging Purchaser are to be issued for the Common Units
being exchanged by such Exchanging Purchaser
i
<PAGE> 56
CASH PAYMENT SCHEDULE
Principal Amount of Notes to be Issued to Cash Purchasers and Cash Payment by
Cash Purchasers
<TABLE>
<S> <C>
B III $1,000,000
Oppenheimer I $159,500
Oppenheimer II $195,250
Oppenheimer III $104,500
Oppenheimer IV $4,750
Oppenheimer V $11,000
IBM $50,000
First Plaza $425,000
Contrarian I $275,000
Contrarian II $275,000
- ------------- ----------
TOTAL $2,500,000
----------
</TABLE>
i
<PAGE> 57
SCHEDULE 5.5
Each Purchaser severally, but not jointly, represents and warrants to the
Company that it is an accredited investor as defined in Regulation D under the
1933 Act based on the subparagraph number of Rule 501(a) of Regulation D set
forth next to such Purchaser's name below.
<TABLE>
<CAPTION>
Name of Purchaser Subparagraph No.
----------------- ----------------
<S> <C>
Lighthouse Investors, L.L.C. (8)
B III Capital Partners, L.P. (3)
Contrarian Capital Fund I, L.P. (3)
Contrarian Capital Fund II, L.P. (3)
Oppenheimer Horizon Partners,
L.P. (3)
Oppenheimer Institutional Horizon
Partners, L.P. (3)
Oppenheimer International Horizon
Fund II, Ltd. (3)
Oppenheimer & Co., Inc. (3)
The & Trust (3)
IBM Retirement Plan Trust (1)
First Plaza Group Trust (1)
</TABLE>
ii
<PAGE> 58
HUNTWAY PARTNERS, L.P.
SCHEDULE 4.2
TO
EXCHANGE AND PURCHASE AGREEMENT
CAPITALIZATION
4.2(a) Common Units: 25,342,654 issued and outstanding
Partnership interest in the Company representing the Managing
General Partner's Percentage Interest (as defined in the Amended
and Restated Agreement of Limited Partnership of the Company dated
as of November 8, 1988, as amended (the "Partnership Agreement"))
Partnership interest in the Company representing the Special
General Partner's Percentage Interest (as defined in the
Partnership Agreement)
4.2(a), (b) Pursuant to the Huntway Partners, L.P. 1996 Employee Incentive
Option Plan dated as of December 12, 1996, options to purchase
4,000,000 Common Units have been authorized and options to
purchase 2,815,850 Common Units are outstanding.
An option in favor of Andre Danesh to purchase 1,146,059 Common
Units is also outstanding.
4.2(c) Sunbelt Refining Company, L.P., a Delaware limited partnership, is
owned 99.9% by the Company and 0.1% by Huntway Managing Partner,
L.P., a Delaware limited partnership.
<PAGE> 59
HUNTWAY PARTNERS, L.P.
SCHEDULE 4.4
TO
EXCHANGE AND PURCHASE AGREEMENT
AUTHORIZATION AND FILINGS
In connection with the Closing
1. Approval of the Related Agreements by the Company's Managing General
Partner.
2. Form D Notice of Sale of Securities Pursuant to Regulation D, Section
4(6), and/or Uniform Limited Offering Exemption
3. Any 1934 Act filings reflecting the Closing.
4. Additional New York Stock Exchange Listing Application with respect to
the Common Units underlying the Notes
5. Execution and delivery of Supplemental Indentures for (i) the Indenture
pursuant to which the Senior Notes (Other) and Senior Notes (IDB) were
issued (the "Senior Note Indenture") and (ii) the Junior Subordinated
Debenture Indenture, in each case as provided in the Sequencing and
Amendatory Agreement.
6. SEC registrations, blue sky registrations, etc. to perform the
Registration Rights Agreement
In connection with the Conversion
1. Creation of the corporation that is to be the survivor of the Conversion
("Survivor").
2. Qualification of Survivor as a foreign corporation in the state of
California.
3. Joint 1933 Act Registration/1934 Act Proxy Statement regarding the
Conversion.
4. Unitholder and general partner approval of the Conversion.
5. Filing of a Certificate of Merger with the Delaware Secretary of State
with respect to the Conversion.
6. 1934 Act registration of the Common Stock of Survivor.
7. New York Stock Exchange Listing Application with respect to Common Stock
of Survivor (i) outstanding immediately after the Conversion, (ii)
issuable upon exercise of
- 2 -
<PAGE> 60
outstanding options or subsequently granted options under Survivor's
option plan and (iii) issuable upon conversion of the Notes.
8. Consents to assignments of Company agreements and permits to Survivor.
9. Execution and delivery of Supplemental Indentures for (i) the Senior Note
Indenture, (ii) the Indenture and (iii) the Junior Subordinated Debenture
Indenture, to reflect the Conversion.
10. Termination of the Company's 1934 Act Registration with respect to its
Common Units.
11. Termination of the Company's listing of its Common Units on the New York
Stock Exchange.
12. Unwind of the depositary arrangements with Bankers Trust Company relating
to the Company's Common Units.
13. Any Uniform Commercial Code filings required to reflect the Conversion.
- 3 -
<PAGE> 61
HUNTWAY PARTNERS, L.P.
SCHEDULE 4.10
TO
EXCHANGE AND PURCHASE AGREEMENT
COMPLIANCE WITH LAW
4.10(c) The Company's refinery located in Wilmington, California and the
Wilmington groundwater basin are included on the Environmental
Protection Agency's Comprehensive Environmental Response,
Compensation and Liability Information System ("CERCLIS") index of
sites requiring environmental clean-up.
- 4 -
<PAGE> 62
HUNTWAY PARTNERS, L.P.
SCHEDULE 4.11
TO
EXCHANGE AND PURCHASE AGREEMENT
LITIGATION
None.
- 5 -
<PAGE> 63
HUNTWAY PARTNERS, L.P.
SCHEDULE 4.13
TO
EXCHANGE AGREEMENT
TITLE TO PROPERTIES; ABSENCE OF ENCUMBRANCES
Additional exceptions to first sentence of Section 4.13 shall incorporate
by reference Permitted Encumbrances as set forth in the Senior Indenture and
the Indenture.
Material Indebtedness of the Company as of October 15, 1997 includes the
following:
* Senior Notes (Other)
* Notes
* Senior Notes (Sunbelt IDB)
* Junior Subordinated Debentures
* Letter of Credit Agreement Obligations (as defined in the Indenture)
* Loan Agreement by and between Sunbelt and the Industrial
Development Authority of the County of Pinal
* Additional Indebtedness disclosed on the Balance Sheet
Additional exceptions to final sentence of Section 4.6 shall incorporate
by reference Permitted Encumbrances as set forth in the Senior Indenture and
the Indenture.
- 6 -
<PAGE> 64
HUNTWAY PARTNERS, L.P.
SCHEDULE 4.14
TO
EXCHANGE AND PURCHASE AGREEMENT
EMPLOYEE PROGRAMS
1. Huntway Refining Co. Profit Sharing and Tax Deferred Savings Plan
2. Huntway Partners, L.P. Money Purchase Pension Plan
3. Huntway Partners, L.P. 1996 Employee Incentive Option Plan
4. Life Insurance Plans
5. Long Term Disability Plans
6. P.P.O. Medical Plan
7. Dental Indemnity Plan
8. Vision Care Plan
9. Vacation Plan
- 7 -
<PAGE> 65
HUNTWAY PARTNERS, L.P.
SCHEDULE 4.17
TO
EXCHANGE AND PURCHASE AGREEMENT
EMPLOYMENT PRACTICES
None.
- 8 -
<PAGE> 66
HUNTWAY PARTNERS, L.P.
SCHEDULE 4.19
TO
EXCHANGE AND PURCHASE AGREEMENT
LIMITATION ON SUBSIDIARY PAYMENT RESTRICTIONS
No additional restriction.
- 9 -
<PAGE> 67
HUNTWAY PARTNERS, L.P.
SCHEDULE 4.22
TO
EXCHANGE AND PURCHASE AGREEMENT
BROKERS AND FINDERS
1. Andre Danesh was employed by the Company as a "finder" with respect to a
proposed but unconsummated transaction which he has contended is
associated with the transactions contemplated by the Related Documents.
He has contended he is entitled to a finder's fee in connection with the
transactions contemplated by the Related Documents. The Company
disagrees.
- 10 -
<PAGE> 1
Exhibit 10.3
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Dated as of October 31, 1997
among
Huntway Partners, L.P.,
Lighthouse Investors, L.L.C.,
B III Capital Partners, L.P.,
Contrarian Capital Fund I, L.P.,
Contrarian Capital Fund II, L.P.,
Mellon Bank, N.A., as trustee for First Plaza Group Trust,
Oppenheimer & Company, Inc., for itself and as agent for certain affiliates,
The IBM Retirement Plan Trust,
First Chicago Equity Corporation
and
Madison Dearborn Partners, III
<PAGE> 2
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"AGREEMENT") is entered into as of October 31, 1997, by and among Huntway
Partners, L.P., a Delaware limited partnership (including its corporate
successor, the "COMPANY"), on the one hand, and Lighthouse Investors, L.L.C., a
Delaware limited liability company ("LIGHTHOUSE"), B III Capital Partners,
L.P., a Delaware limited partnership ("B III"), Contrarian Capital Fund I,
L.P., a Delaware limited partnership ("CONTRARIAN I"), Contrarian Capital Fund
II, L.P., a Delaware limited partnership ("CONTRARIAN II"), Mellon Bank, N.A.,
as trustee for First Plaza Group Trust ("MELLON"), Oppenheimer & Company, Inc.,
for itself and as agent for certain affiliates as listed under the signature of
Contrarian Capital Advisers, L.L.C. on the signature page of this Agreement
("OPPENHEIMER"), The IBM Retirement Plan Trust ("IBM"), First Chicago Equity
Corporation ("FIRST CHICAGO"), and Madison Dearborn Partners, III ("MADISON
DEARBORN"; Lighthouse, B III, Contrarian I, Contrarian II, Mellon, Oppenheimer,
IBM, First Chicago and Madison Dearborn are each referred to as a "HOLDER"),
with reference to the following facts:
Mellon, Oppenheimer, First Chicago and Madison Dearborn (collectively,
the "INITIAL HOLDERS") acquired Common Units of the Company pursuant to the
Prepackaged Plan of Reorganization of the Company under Chapter 11 of the
United States Bankruptcy Code (the "PLAN"). The Initial Holders, Bankers Trust
Company, Massachusetts Mutual Life Insurance Company (Bankers Trust Company and
Massachusetts Mutual Life Insurance Company are referred to as the "EXCHANGING
HOLDERS") and the Company entered into a Registration Rights Agreement, dated
as of December 12, 1996 (the "ORIGINAL AGREEMENT") pursuant to the Plan.
Lighthouse, B III, Contrarian I, Contrarian II, Oppenheimer, Mellon and IBM
(collectively, the "NEW HOLDERS" AND, TOGETHER WITH THE INITIAL HOLDERS, THE
"HOLDERS") have acquired from the Company 9 1/4% Senior Subordinated Secured
Convertible Notes due 2007 of the Company (the "NOTES") in the principal amount
of $21,750,000 in exchange for cash or for Senior Units (Other) and Common
Units of the Company that they acquired from the Exchanging Holders, subject to
the Original Agreement being amended and restated in the form of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and conditions set forth in this Agreement, the parties agree
as follows:
1. REGISTRATION RIGHTS. The Company covenants and agrees as follows:
1.1 Request for Registration
(a) If the Company shall receive at any time after the date hereof a
written request stating that it is pursuant to this section 1.1(a) from New
Holders holding at least twenty-five percent (25%) of the Registrable Securities
(assuming the conversion into Huntway Equity Securities of all Notes held by
the New Holders) held by the New Holders (such New Holders shall be referred to
as "INITIATING HOLDERS" with respect to registrations requested under this
section 1.1(a)) that the Company file a registration statement under the 1933
Act covering the registration of at least twenty percent (20%) of the
Registrable Securities initially issued to the
<PAGE> 3
New Holders (assuming the conversion into Huntway Equity Securities of all
Notes held by the New Holders) (or a lesser percent if the anticipated
aggregate offering price would exceed $10,000,000), then the Company shall,
within twenty-one (21) days after the receipt thereof, give written notice of
such request to all Holders and shall, subject to the limitations and pursuant
to the provisions of this section 1.1, file a registration statement under the
1933 Act covering all Registrable Securities which such Holders, within twenty
(20) days after the mailing of such notice by the Company, request to be
registered.
(b) If the Company shall receive at any time after the date hereof, a
written request stating that it is pursuant to this section 1.1(b) from Holders
holding at least sixty-six and two-thirds percent (66-2/3%) of the Registrable
Securities then outstanding (assuming the conversion into Huntway Equity
Securities of all Notes held by the New Holders) (such Holders shall be
referred to as "INITIATING HOLDERS" with respect to registrations requested
under this section 1.1(b)) that the Company file a registration statement under
the 1933 Act covering the registration of at least twenty percent (20%) of the
Registrable Securities initially issued to all of the Holders (assuming the
conversion into Huntway Equity Securities of all Notes held by the New Holders)
(or a lesser percent if the anticipated aggregate offering price would exceed
$10,000,000), then the Company shall, within twenty-one (21) days after the
receipt thereof, give written notice of such request to all Holders and shall,
subject to the limitations and pursuant to the provisions of this section 1.1,
file a registration statement under the 1933 Act covering all Registrable
Securities which such Holders, within twenty (20) days after the mailing of
such notice by the Company, request to be registered.
(c) Notwithstanding the foregoing, the Company shall not be obligated
to take any action to effect any such registration pursuant to this section 1.1:
(i) if the Initiating Holders propose to dispose of Registrable
Securities which may be immediately registered on Form S-3 pursuant to a
request made under section 1.10;
(ii) if Initiating Holders shall have initiated two
registrations pursuant to this section 1.1, which have been declared or ordered
effective and pursuant to which securities have been sold or have been
withdrawn by the Initiating Holders other than as a result of a material
adverse change to the Company; or
(iii) if Initiating Holders shall have previously initiated one
registration pursuant to this section 1.1 in the same calendar year, which has
been declared or ordered effective and pursuant to which securities have been
sold or have been withdrawn by the Initiating Holders other than as a result of
a material adverse change to the Company.
(d) Subject to the provisions of this Agreement, including, but not
limited to, the foregoing section 1.1(c) and section 1.3(a), the Company shall
file a registration statement as soon as reasonably practicable after receipt
of the request or requests of the Initiating Holders
2
<PAGE> 4
under this section 1.1, but in any event within ninety (90) days after receipt
of such request or requests.
(e) If the Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to section 1.1(a)
or section 1.1(b) and the Company shall include such information in the written
notice referred to in section 1.1(a) or section 1.1(b). The underwriter will
be selected by the Company and shall be reasonably acceptable to a majority in
interest of the Initiating Holders. In such event, the right of any Holder to
include his Registrable Securities in such registration shall be conditioned
upon such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting (unless otherwise mutually
agreed by a majority in interest of the Initiating Holders and by such Holder)
to the extent provided herein. All Holders proposing to distribute their
securities through such underwriting shall (together with the Company as
provided in section 1.3(e)) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for such underwriting.
Notwithstanding any other provision of this section 1.1, if the underwriter
advises the Initiating Holders in writing that marketing factors require a
limitation of the number of shares to be underwritten, then the Initiating
Holders shall so advise all Holders of Registrable Securities that would
otherwise be underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting shall be
allocated among all Holders thereof (but excluding Holders whose Registrable
Securities are included in such registration pursuant to section 1.2),
including the Initiating Holders, in proportion (as nearly as practicable) to
the amount of Registrable Securities of the Company owned by each Holder;
provided, however, that the number of shares of Registrable Securities to be
included in such underwriting shall not be reduced unless all other securities
are first entirely excluded from the underwriting.
1.2 COMPANY REGISTRATION. If (but without any obligation to do so)
the Company proposes to register (excluding for this purpose a registration
effected by the Company for any shareholders pursuant to section 1.1) any of
its stock or other securities under the 1933 Act in connection with the public
offering of such securities solely for cash (other than a registration on Form
S-8 relating solely to the sale of securities to participants in a Company
benefit plan or a registration on Form S-4 relating solely to a business
combination), the Company shall, at such time, promptly give each Holder
written notice of such registration. Upon the written request of each Holder
given within twenty (20) days after mailing of such notice by the Company, the
Company shall, subject to the provisions of section 1.6, cause to be registered
under the 1933 Act all of the Registrable Securities that each such Holder has
requested to be registered. Notwithstanding section 1.3, the Company may
withdraw any registration that it proposes to make at any time prior to the
effectiveness of that registration.
1.3 OBLIGATIONS OF THE COMPANY. Whenever required under this section
1 to effect the registration of any Registrable Securities, the Company shall,
as expeditiously as reasonably possible:
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(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder, keep
such registration statement effective for a period of 120-days or until the
distribution contemplated in the Registration Statement has been completed;
provided, however, that (i) such 120-day period shall be extended for a period
of time equal to the period the Holder refrains from selling any securities
included in such registration at the request of an underwriter of Common Stock
(or other securities) of the Company; and (ii) in the case of any registration
of Registrable Securities on Form S-3 (or any other Form, to the extent
permitted by law) which are intended to be offered on a continuous or delayed
basis, such 120-day period shall be extended, if necessary, to keep the
registration statement effective until all such Registrable Securities are
sold, provided that Rule 415, or any successor rule under the 1933 Act, permits
an offering on a continuous or delayed basis, except to the extent that all
holders of such Registrable Securities may sell those Registrable Securities
without regard to the volume limitations contained in Rule 144 under the 1933
Act. Notwithstanding anything to the contrary in this Agreement, the Company
may delay filing a Registration Statement, and may withhold efforts to cause a
Registration Statement to become effective, for a period not to exceed 120
days, if the Company shall furnish to Holders a certificate signed by the
Chairman of the Board (or, prior to the Conversion, the Huntway Managing
General Partner) stating that in the good faith judgment of the Board of
Directors of the Company (or, prior to the Conversion, the Huntway Managing
General Partner), it would be seriously detrimental to the Company and its
shareholders or limited partners, as the case may be, for such registration
statement to be effected at such time; provided that such right to delay a
request shall be exercised by the Company not more than once in any twelve (12)
month period. If, after a Registration Statement becomes effective, the
Company advises the holders of registered securities that the Company considers
it appropriate for the Registration Statement to be amended or supplemented,
the holders of such securities shall suspend any further sales of their
registered securities pursuant to such registration statement until the Company
advises them that the registration statement has been amended or updated. The
Company shall use its best efforts so that the effectiveness of the
registration is not suspended for a period in excess of 90 days in any 365 day
period.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
1933 Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
1933 Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities covered by such
registration statement.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such U.S. jurisdictions as
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shall be reasonably requested by the Holders; provided that the Company shall
not be required in connection therewith or as a condition thereto to qualify to
do business or to file a general consent to service of process in any such
states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the 1933 Act of the happening of any event as a
result of which the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
(g) Cause all such Huntway Equity Securities covered by such
registration statement that are not already so listed to be listed on each
securities exchange on which similar securities issued by the Company are then
listed.
(h) Provide a transfer agent and registrar for all Registrable
Securities covered by such registration statement and a CUSIP number for all
such Registrable Securities, in each case not later than the effective date of
such registration.
1.4 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this section 1 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such
securities as shall be required to effect the registration of such Holder's
Registrable Securities.
1.5 EXPENSES OF COMPANY REGISTRATION. The Company shall bear and
pay all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities pursuant to this section 1 (which right
may be assigned as provided in section 1.11), including (without limitation)
all registration, filing, and qualification fees, printers and accounting fees
relating or apportionable thereto and the fees and disbursements of counsel for
the Company and one separate counsel for the selling Holders thereunder
(selected by the Holders of a majority of the Registrable Securities that are
included therein), but excluding underwriting discounts, commissions and
stock transfer taxes relating to Registrable Securities.
1.6 UNDERWRITING REQUIREMENTS. In connection with any offering
involving an underwriting of Registrable Securities, the Company shall not be
required under section 1.2 to include any of the Holders' securities in such
underwriting unless they accept the terms of the underwriting as reasonably
agreed upon between the Company and the underwriters selected by
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it (or by other Persons entitled to select the underwriters), and then only in
such quantity as the underwriters determine in their sole discretion will not,
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities, requested to be included in such
offering exceeds the amount of securities that the underwriters determine in
good faith is compatible with the success of the offering, the amount or number
of Notes or Huntway Equity Securities that may be included in the underwriting
shall be allocated, first, to the Company; second, to the Holders on a pro rata
basis based on the total number of Registrable Securities held by such Holders
(assuming the conversion into Huntway Equity Securities of all Notes held by
the New Holders); and third, to any shareholder of the Company (other than a
Holder) on a pro rata basis. No such reduction shall reduce the amount of
securities of the selling Holders included in the registration below ten
percent (10%) of the total amount of securities included in such registration.
Further, no such reduction shall reduce the amount of securities of the selling
Holders included in such registration if such registration is pursuant to
section 1.1. In no event will securities of any other selling shareholder be
included in such registration which would reduce the number or amount of
securities which may be included by Holders without the written consent of
Holders of not less than two-thirds (66 2/3%) of the Registrable Securities
proposed to be sold in the offering.
If any Holder does not agree to the terms of any such underwriting, the
holder shall be excluded therefrom by written notice from the Company or the
underwriter. Any Registrable Securities or other securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration. If
securities are so withdrawn from the registration and if the number or amount
of Registrable Securities to be included in such registration was previously
reduced as a result of marketing factors, the Company shall then offer to all
Persons who have retained the right to include securities in the registration
the right to include additional securities in the registration in an aggregate
amount equal to the number or amount of securities so withdrawn, with such
securities to be allocated among the Persons requesting additional inclusion
pro rata according to the total amount of securities entitled to be included in
such registration owned by each such Person or in such other proportions as
shall be mutually agreed by such selling holders of Huntway Equity Securities.
1.7 DELAY OF REGISTRATION. No Holder shall have any right to obtain
or seek an injunction restraining or otherwise delaying any such registration
as the result of any controversy that might arise with respect to the
interpretation or implementation of this section 1.
1.8 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under this section 1:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, any underwriter (as defined in the 1933 Act) for such
Holder, and each Person, if any, who controls such Holder or underwriter within
the meaning of the 1933 Act or the 1934 Act, against any losses, claims,
damages, or liabilities joint or several) to which they may become subject
under the 1933 Act, the 1934 Act or other federal or state law, insofar as
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such losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations (collectively a "VIOLATION"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the 1933 Act, the 1934 Act, any state securities
law or any rule or regulation promulgated under the 1933 Act, the 1934 Act or
any state securities law; and the Company will pay to each such Holder,
underwriter or controlling Person, as incurred, any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this section 1.8(a) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable to a Holder in
any such case for any such loss, claim, damage, liability or action to the
extent that it arises out of or is based upon a Violation which occurs (i) in
reliance upon and in conformity with written information furnished expressly
for use in connection with such registration by any such Holder, underwriter or
controlling Person of such Holder or any brokerage firm acting as underwriter
selected by the Company or any of the Holders or (ii) as a result of such
Holder delivering a prospectus in connection with a transaction entered into
during a period when the Company has advised such Holder that sales of its
registered securities must be suspended. For purposes of this section 1.8,
"Holder" shall include any former Holder of Registrable Securities who has
participated in a registration pursuant to this section 1.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company and the Huntway General Partners, each
of their respective general partners and/or directors, each of their respective
officers who has signed the registration statement, each Person, if any, who
controls the Company within the meaning of the 1933 Act, any underwriter, any
other Holder selling securities in such registration statement and any
controlling Person of any such underwriter or other Holder, against any losses,
claims, damages or liabilities (joint or several) to which any of the foregoing
Persons may become subject, under the 1933 Act, the 1934 Act or other federal
or state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Holder expressly for use in connection with such registration; and each such
Holder will pay, as incurred, any legal or other expenses reasonably incurred
by any Person intended to be indemnified pursuant to this section 1.8(b), in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained
in this section 1.8(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld; provided, that, in no event shall any indemnity under this
section 1.8(b) exceed the net proceeds from the offering received by such
Holder.
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(c) Promptly after receipt by an indemnified party under this section
1.8 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this section 1.8, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by
such counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this section
1.8. The omission so to deliver written notice to the indemnifying party will
not relieve it of any liability that it may have to any indemnified party
otherwise than under this section 1.8.
(d) If the indemnification provided for in this section 1.8 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with an underwritten public offering are in conflict
with the foregoing provisions, the provisions in the underwriting agreement
shall control.
(f) The obligations of the Company and Holders under this section 1.8
shall survive the completion of any offering of Registrable Securities in a
registration statement under this section 1, and otherwise.
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1.9 REPORTS UNDER THE 1934 ACT. With a view to making available to
the Holders the benefits of Rule 144 promulgated under the 1933 Act and any
other rule or regulation of the SEC that may at any time permit a Holder to
sell Securities to the public without registration or pursuant to a
registration on Form S-3, the Company agrees to:
(a) file with the SEC in a timely manner all reports and other
documents required of the Company under the 1933 Act and the 1934 Act; and
(b) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of SEC Rule 144, the 1933 Act
and the 1934 Act, or that it qualifies as a registrant whose securities may be
resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a copy of
the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company, and (iii) such other information
as may be reasonably requested in availing such Holder of any rule or
regulation of the SEC which permits the selling of any such Registrable
Securities without registration or pursuant to such form.
1.10 FORM S-3 REGISTRATION. In case the Company shall receive
written request or requests from New Holders holding at least ten percent (10%)
of the Registrable Securities then outstanding (assuming the conversion into
Huntway Equity Securities of all Notes held by the New Holders) or from Holders
holding at least sixty-six and two-thirds percent (66-2/3%) of the Registrable
Securities then outstanding (assuming the conversion into Huntway Equity
Securities of all Notes held by the New Holders) that the Company effect a
registration on Form S-3 and any related qualification or compliance (subject
to the limits in section 1.3(d)) with respect to all or a part of the
Registrable Securities owned by such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed registration, and
any related qualification or compliance, to all other Holders; and
(b) use its best efforts, as soon as reasonably practicable, to
effect such registration and all such qualifications and compliances as may be
so requested and as would permit or facilitate the sale and distribution of all
such portion of such Holder's or Holders' Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any other Holder or Holders joining in such request as are
specified in a written request given within 20 days after effectiveness of such
written notice from the Company; provided, however, that the Company shall not
be obligated to effect any such registration, qualification or compliance
pursuant to this section 1.10: (i) if Form S-3 is not available for such
offering by the Holders; (ii) if the Holders propose to sell Registrable
Securities at any aggregate price to the public of less than $3,000,000; or
(iii) as provided in section 1.3(a) or section 1.3(d).
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(c) Subject to the foregoing, the Company shall file a registration
statement covering the Registrable Securities so requested to be registered as
soon as practicable after receipt of the request or requests of the Holders.
Registrations effected pursuant to this section 1.11 shall not be counted as
demands for registration effected pursuant to section 1.1.
(d) Notwithstanding the foregoing, the Company shall not be obligated
to take any action to effect any such registration or qualification or
compliance pursuant to this section 1.10:
(i) if the Holders shall have initiated eight registrations
pursuant to this section 1.10, which have been declared or ordered effective
and pursuant to which securities have been sold or have been withdrawn by the
Holders other than as a result of a material adverse change to the Company; or
(ii) if the Holders shall have previously initiated two
registrations pursuant to this section 1.10, in the same calendar year, which
have been declared or ordered effective and pursuant to which securities have
been sold or have been withdrawn by the Holders other than as a result of a
material adverse change to the Company.
1.11 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this section 1 may be
assigned (but only with all related obligations) by a Holder to a transferee or
assignee of such securities (other than a competitor of the Company) who is a
Holder or who, in such assignment or transfer, acquires Notes or Huntway Equity
Securities issued upon conversion of Notes that constitute at least twenty-five
percent of the Registrable Securities initially issued to such Holder provided:
(a) the Company is, within a reasonable time after such transfer, furnished
with written notice of the name and address of such transferee or assignee and
the securities with respect to which such registration rights are being
assigned; (b) such transferee or assignee agrees in writing to be bound by and
subject to the terms and conditions of this section 1; (c) such assignment
shall be effective only if immediately following such transfer the further
disposition of such securities by the transferee or assignee is restricted
under the 1933 Act; and (d) such Holder transferee or assignee owns Registrable
Securities (assuming conversion of the Notes into Huntway Equity Securities)
representing at least 1 million Common Units of the Company (or the equivalent
number of shares of Common Stock following the Conversion). For the purposes
of determining the number or amount of Registrable Securities held by a
transferee or assignee, the holdings of transferees and assignees of a
partnership or limited liability company who are partners or retired partners
of such partnership or members or retired members of such limited liability
company (including spouses and ancestors, lineal descendants and siblings of
such partners, members or spouses who acquire Registrable Securities by gift,
will or intestate succession) shall be aggregated together and with the
partnership or limited liability company; provided that all assignees and
transferees who would not qualify individually for assignment of registration
rights shall have a single attorney-in-fact for the purpose of exercising any
rights, receiving notices or taking any action under this section 1.
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1.12 TERMINATION OF REGISTRATION RIGHTS. The right of any Holder to
request registration or inclusion in any registration pursuant to section 1
shall terminate on such date as all Registrable Securities held or entitled to
be held upon conversion by such Holder may immediately be sold under Rule 144
during any 90 day period.
1.13 OTHER REGISTRATION RIGHTS AGREEMENTS. The Company shall not
grant any rights to register any of its securities, including, without
limitation, the Huntway Equity Securities, without the consent of Two-Thirds in
Interest of the Holders.
2. DEFINITIONS.
2.1 GLOSSARY. For purposes of this Agreement, the following terms
shall have the following meanings, which shall be equally applicable to both
the singular and plural forms of any of such terms.
"CONVERSION" means the anticipated merger of the Company with and into a
newly formed corporation for the purpose of converting the Company into a
corporation.
"FORM S-3" means such form under the 1933 Act as in effect on the date
hereof or any registration form under the 1933 Act subsequently adopted by the
SEC which permits inclusion or incorporation of substantial information by
reference to other documents filed by the Company with the SEC.
"HUNTWAY EQUITY SECURITIES" shall mean the Common Units of the Company,
for as long as the Company is a limited partnership, and the Common Stock of
the Company after the Company has converted to a corporation.
"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 Huntway Partnership Agreement.
"HUNTWAY MANAGING GENERAL PARTNER" means Huntway Managing Partner L.P.,
a Delaware limited partnership, and its permitted successors and assigns.
"HUNTWAY PARTNERSHIP AGREEMENT" means the Amended and Restated Agreement
of Limited Partnership of Huntway Partners, L.P. dated as of November 9, 1988,
among the General Partner and each of the other partners named therein or bound
thereby, as amended.
"PERSON" shall mean a natural person, corporation, partnership, trust,
unincorporated association, joint venture, joint-stock company, limited
liability company, Authority, or any other entity.
"REGISTER", "REGISTERED" AND "REGISTRATION" refer to a registration
effected by preparing and filing a registration statement or similar document
in compliance with the 1933 Act, and the effectiveness of such registration
statement or document.
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"REGISTRABLE SECURITIES" means (i) the Notes, (ii) the Huntway Equity
Securities issued or issuable on conversion of the Notes, (iii) the Huntway
Equity Securities acquired by each Holder from the Company pursuant to the
Plan, and (iv) any Huntway Equity Securities issued as (or issuable upon the
conversion or exercise of any warrant, right or other security which is issued
as) a dividend or other distribution with respect to, or in exchange for or in
replacement of the securities referenced in (i), (ii) or (iii) above, excluding
in all cases, however, any Registrable Securities sold by a Person in a
transaction in which his rights under section 1 are not assigned; provided,
however, that Notes, Huntway Equity Securities or other securities shall not be
treated as Registrable Securities for the purposes of any registration if and
so long as at the time of such registration all transfer restrictions and
restrictive legends with respect thereto have been or, in the opinion of
counsel for the Company, may be removed, and all the Registrable Securities
held by such Holder may be sold without restriction (including any volume
limitations) under Rule 144 or Rule 145 under the 1933 Act and provided that
any Registrable Securities sold by a Person in a transaction in which his or
her rights under section 1 are not assigned or with respect to which the holder
has no rights to request registration or inclusion in any registration under
section 1 pursuant to section 1.12 shall not be included in the term
"REGISTRABLE SECURITIES".
The number of shares of "REGISTRABLE SECURITIES THEN OUTSTANDING" shall be
determined by the number of Huntway Equity Securities outstanding which are,
and the number of shares of Huntway Equity Securities issuable pursuant to then
exercisable or convertible securities which are, Registrable Securities.
"SEC" shall mean the Securities and Exchange Commission.
"SPECIAL GENERAL PARTNER" means Huntway Holdings, L.P., a Delaware limited
partnership.
"TWO-THIRDS IN INTEREST OF THE HOLDERS" on any date means Holders who in
the aggregate own Notes or Huntway Equity Securities or both on that date that
aggregate at least sixty-six and 2/3 percent (66 2/3%) of the Registrable
Securities (assuming conversion of the Notes into Huntway Equity Securities)
owned by all Holders on that date.
"UNDERWRITTEN OFFERING" means an offering of Huntway Equity Securities to
the public pursuant to an effective registration statement that is firmly
underwritten by a United States nationally recognized underwriter or
underwriters that are selected or approved by the Company in accordance with
this Agreement.
"1933 ACT" shall mean the Securities Act of 1933, as amended.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as amended.
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3. MISCELLANEOUS
3.1 POWERS AND RIGHTS NOT WAIVED; REMEDIES CUMULATIVE. No delay or
failure on any Holder's part in the exercise of any power or right shall
operate as a waiver thereof, nor shall any single or partial exercise of the
same preclude any other or further exercise thereof or the exercise of any
other power or right, and the Holders' rights and remedies are cumulative to
and are not exclusive of any rights or remedies the Holders would otherwise
have, and no waiver or consent given or extended pursuant hereto shall extend
to or affect any obligation or right not expressly waived or consented to.
3.2 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and Two-Thirds in
Interest of the Holders. Any amendment or waiver effective in accordance with
this section 3.2 shall be binding upon each holder of any Notes or Huntway
Equity Securities, each future holder of all such Notes or Huntway Equity
Securities and the Company.
3.3 NOTICES. Any notice, consent, authorization or other
communication to be given hereunder shall be in writing and shall be deemed
duly given and received when delivered personally by facsimile transmission or
three days after being mailed by first class mail, or the next Business Day
after being deposited for next-day delivery with a nationally recognized
overnight delivery service, charges and postage prepaid, properly addressed to
the party to receive such notice at the following address for such party (or at
such other address as shall be specified by like notice):
(a) if to the Company, to:
Huntway Partners, L.P.
25129 The Old Road 322
Newhall, CA 91381
Attention: Warren Nelson
Telephone:(805) 254-1220
Facsimile: (805) 286-1588
with copies to:
Kirkland & Ellis
200 East Randolph Drive
Chicago, IL 60601
Attention: Brian Hogan
Telephone: (312) 861-2000
Facsimile: (312) 861-2200
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(b) if to the Holders, to the address set forth below their signature
on this Agreement, with a copy to:
Shartsis, Friese & Ginsburg LLP
One Maritime Plaza, 18th Floor
San Francisco, CA 94111
Attention: Eric M. Sippel, Esq.
Telephone: (415) 421-6500
Facsimile: (415) 421-2922
3.4 ENTIRE AGREEMENT. This Agreement contains the entire agreement of
the parties and supersedes all prior negotiations, correspondence, agreements
and understandings, written and oral, between or among the parties, regarding
the subject matter hereof, including, without limitation, the Original
Agreement.
3.5 SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective permitted successors and
assigns (excluding each successive holder or holders of a Note or Huntway
Equity Securities, except to the extent otherwise expressly provided herein).
3.6 SEVERABILITY. If any provision of this Agreement, or the
application of such provision to any Person or circumstance, shall be held
invalid or unenforceable, the remainder of this Agreement, or the application
of such provision to Persons or circumstances other than those to which it is
held to be invalid or unenforceable, shall not be affected thereby.
3.7 GOVERNING LAW. This Agreement shall be governed by and construed
and interpreted in accordance with the Law of the State of California, without
regard to that state's conflict of laws principles.
3.8 INTERPRETATION. All parties have been assisted by counsel in the
preparation and negotiation of this Agreement and the transactions contemplated
hereby, and this Agreement shall be construed according to its fair language.
The rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this
Agreement.
3.9 FURTHER ASSURANCES. Each party shall execute such other and
further certificates, instruments and other documents as may be necessary and
proper to implement, complete and perfect the transactions contemplated by this
Agreement.
3.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall constitute an original, and all of which
together shall be considered one and the same agreement.
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3.11 ASSIGNMENT. The Company shall not assign this Agreement or any
rights hereunder or delegate any duties hereunder except pursuant to the
Conversion. Any attempted or purported assignment or delegation in violation
of the preceding sentence shall be void.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first set forth above.
<TABLE>
<S> <C>
HUNTWAY PARTNERS, L.P.
By /s/ Warren J. Nelson
------------------------------------
Name:Warren J. Nelson
Title: Executive Vice President and
Chief Financial Officer
LIGHTHOUSE INVESTORS, L.L.C. B III CAPITAL PARTNERS, L.P.
By Lighthouse Capital, LLC, its By DDJ Capital III, LLC, its General
Manager Partner
By /s/ Richard S. Spender III By DDJ Capital Management, LLC,
---------------------------------- Manager
Richard S. Spencer III
Manager By /s/ Judy K. Mencher
------------------------------------
200 Seventh Avenue, Suite 105 Name: Judy K. Mencher
Santa Cruz, CA 95062 Title: Member
Telephone: (408) 477-4046
Facsimile: (408) 479-3642
CONTRARIAN CAPITAL FUND I, L.P. CONTRARIAN CAPITAL FUND II, L.P.
By Contrarian Capital Management, LLC, By Contrarian Capital Management, LLC,
its general partner its general partner
By /s/ Janice M. Stanton By /s/ Janice M. Stanton
---------------------------------- ------------------------------------
Janice M. Stanton Janice M. Stanton
Partner Partner
Address: 411 West Putnam, Suite Address: 411 West Putnam, Suite
225 225
Greenwich, CT 06830 Greenwich, CT 06830
Telephone: (203) 862-8201 Telephone: (203) 862-8201
Facsimile: (203) 629-1977 Facsimile: (203) 629-1977
</TABLE>
15
<PAGE> 17
<TABLE>
<S> <C>
CONTRARIAN CAPITAL ADVISORS, L.L.C., MELLON BANK, N.A., solely in its
as agent for the entities listed below capacity as Trustee for First Plaza Group
its signature attached hereto. Trust (as directed by Contrarian Capital
Advisors, L.L.C.) and not in its individual
capacity
By: /s/ Janice M. Stanton
------------------------------------
Janice M. Stanton By: /s/ Carole Bruno
Partner --------------------------
Name: Carole Bruno
Address: 411 West Putnam, Suite 225 Authorized Signatory
Greenwich, CT 06830 Address: __________________________
__________________________
Telephone: (203) 862-8201
Facsimile: (203) 629-1977 Telephone: __________________________
Facsimile: __________________________
Oppenheimer Horizon Partners, L.P.
Oppenheimer Institutional Horizon Partners,
L.P.
Oppenheimer International Horizon Fund II,
Ltd.
Oppenheimer & Co., Inc.
The & Trust
THE CHASE MANHATTAN BANK As Directed
Trustee For The IBM Retirement Plan
Trust
By: See Rider 1
------------------------------------
Michael Rolling, Vice President
The Chase Manhattan Bank as Directed
Trustee for the IBM Retirement Plan
Trust
Address: __________________________
__________________________
Telephone: __________________________
Facsimile: __________________________
</TABLE>
16
<PAGE> 18
MADISON DEARBORN PARTNERS III
By: /s/ Samuel M. Mencoff
-----------------------
Name: Samuel M. Mencoff
Its: General Partner
FIRST CHICAGO EQUITY
CORPORATION
By: /s/
-----------------------
Name:
Its:
17
<PAGE> 19
RIDER 1
Amended and Restated Registration Rights Agreement dated as of October 31, 1997
among Huntway Partners, L.P. and the Holders
The Chase Manhattan Bank has executed this Agreement in its capacity as Trustee
("Trustee") of the IBM Retirement Plan Trust ("Trust") acting hereunder in such
capacity pursuant to the directions of Budge Collins, Inc., as Investment
Manager as such term is defined in ERISA ("Investment Manager"), in accordance
with the terms of the Trust and without limiting the generality of the
foregoing, any representations or statements made herein have been made for and
on behalf of the Trust in accordance with the directions of the Investment
Manager. Not withstanding any other provision of the Agreement, all actions to
be taken by or notices to be given to the Trust shall be taken by or given to
the Investment Manager.
By: /s/ Michael L. Rohling Date: 10/31/97
------------------------------------ -----------
MICHAEL L. ROHLING, VICE PRESIDENT
CHASE MANHATTAN BANK
AS DIRECTED TRUSTEE FOR
THE IBM RETIREMENT PLAN TRUST
