FIRST AMENDMENT TO
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
This FIRST AMENDMENT TO LETTER OF CREDIT AND
REIMBURSEMENT AGREEMENT (this "First Amendment") is dated as
of December 12, 1996, and entered into by and among HUNTWAY
PARTNERS, L.P., a Delaware limited partnership ("Huntway"),
SUNBELT REFINING COMPANY, L.P., a Delaware limited
partnership ("Sunbelt"), and BANKERS TRUST COMPANY
("Bankers"), and is made with reference to that certain
Letter of Credit and Reimbursement Agreement dated as of
June 22, 1993 (the "Letter of Credit Agreement"), by and
among the Huntway, Sunbelt and Bankers. Capitalized terms
used herein without definition shall have the same meanings
herein as set forth in the Letter of Credit Agreement or in
the Intercreditor Agreement referred to below.
RECITALS
WHEREAS, Huntway is a debtor and debtor in
possession under chapter 11 of Title 11 of the United States
Code, having commenced a bankruptcy case on November 12,
1996;
WHEREAS, on November 12, 1996, Huntway submitted
to the United States Bankruptcy Court for the District of
Delaware (the "Court") a Plan of Reorganization dated
November 12, 1996 (the "Plan'), and on December 12, 1996,
the Court confirmed the Plan;
WHEREAS, the parties hereto desire to amend the
Letter of Credit Agreement for the purpose of (i) providing
that the commitment of Bankers to issue Letters of Credit
under the Letter of Credit Agreement shall expire on
December 31, 1997, (ii) providing that all letters of credit
issued under the Postpetition DIP LC Agreement dated as of
November 12, 1996 between Huntway, as debtor and debtor in
possession, and Bankers Trust Company that remain
outstanding on the Plan Effective Date shall be deemed to be
letters of credit hereunder, (iii) revising certain
definitions, covenants and events of default in the Letter
of Credit Agreement to reflect the transactions under the
Plan and (iv) making other revisions as set forth herein;
WHEREAS, it is a condition precedent to the
effectiveness of the Plan that the parties hereto have
entered into this Amendment;
NOW, THEREFORE, in consideration of the premises
and the agreements, provisions and covenants herein
contained, the parties hereto agree as follows:
I. Section AMENDMENTS TO THE LETTER OF CREDIT
AGREEMENT
A. Amendments to Article I: Definitions
1. Section 1.01 of the Letter of Credit
Agreement is hereby amended by deleting the definitions of
"Collateral," "Collateral Account Agreement,"
"Collateralized Note Indenture," "Commitment Termination
Date," "Intercreditor Agreement," "Restructuring Agreement,"
"Security Documents," and "Senior Notes" therefrom in their
entirety and substituting the following therefor:
"Collateral" means all real and personal property
of Huntway and Sunbelt on which a lien exists for the
benefit of Bankers in its capacity as letter of credit
issuer under this Agreement and the holders of the
Senior Notes, subject to the terms of the Intercreditor
Agreement.
"Collateral Account Agreement" means that certain
Collateral Accounts Security Agreement dated as of
December 12, 1996 by and among Huntway, Sunbelt and
Collateral Agent, as the same may be amended from time
to time.
"Collateralized Note Indenture" means that certain
Amended and Restated Collateralized Note Indenture
dated as of December 12, 1996, by and between the
Company and the Collateralized Note Indenture Trustee,
pursuant to which the Senior Notes are issued, as it
may be amended, amended and restated, supplemented or
modified from time to time.
"Commitment Termination Date" means (i) with
respect to the IDB Letter of Credit, requests to extend
or renew the IDB Letter of Credit and fees payable with
respect thereto, December 31, 2005 and (ii) with
respect to Letters of Credit, requests to issue, extend
or renew Letters of Credit and fees payable with
respect thereto, December 31, 1997.
"Intercreditor Agreement" means that certain
Intercreditor and Collateral Trust Agreement dated as
of December 12, 1996, by and among Bankers (in its
capacity as issuer of Letters of Credit hereunder), the
financial institutions named therein in their capacity
as holders of Senior Notes, Fleet National Bank, as
trustee under the Collateralized Note Indenture and
Collateral Agent, as it may be amended, supplemented or
modified from time to time.
"Security Documents" means the Collateral
Documents (as such term is defined in the Intercreditor
Agreement), which create or perfect security interests
for obligations under this Agreement and under the
Collateralized Note Indenture.
"Senior Notes" means the Senior Notes (Other) and
the Senior Notes (Sunbelt IDB).
1. Section 1.01 of the Letter of Credit
Agreement is hereby further amended by adding the following
definitions thereto, which shall be inserted in proper
alphabetical order:
"DIP Letter of Credit Agreement" means that
certain Debtor-in-Possession Letter of Credit and
Reimbursement Agreement between Huntway Partners, L.P.,
as debtor and debtor in possession, and Bankers Trust
Company.
"DIP Letters of Credit" means all letters of
credit issued under the DIP Letter of Credit Agreement.
"Interest Drawing" means any drawing under the IDB
Letter of Credit for the purpose of paying interest
coming due on the IDB Bonds. If any drawing under the
IDB Letter of Credit is applied to the payment of both
interest on the IDB Bonds and principal, premium and
other amounts other than interest, it shall be deemed a
Principal Drawing to the extent that such drawing is
applied to the payment of principal, premium and
amounts other than interest and an Interest Drawing to
the extent proceeds of such drawing are applied to pay
interest on the IDB Bonds.
"Plan Effective Date" means the date that the Plan
of Reorganization of Huntway, dated November 12, 1996,
confirmed by the United States Bankruptcy Court for the
District of Delaware on December 12, 1996, becomes
effective.
"Principal Drawing" means any drawing under the
IDB Letter of Credit for the purpose of paying the
principal, premium, if any or other amounts coming due
and payable on the IDB Bonds, other than interest. If
any drawing under the IDB Letter of Credit is applied
to the payment of both interest on the IDB Bonds and
principal, premium and other amounts other than
interest, it shall be deemed a Principal Drawing to the
extent that such drawing is applied to the payment of
principal, premium and amounts other than interest and
an Interest Drawing to the extent proceeds of such
drawing are applied to pay interest on the IDB Bonds.
"Senior Notes (Other)" means those certain 12%
Senior Secured Notes (Other) due 2006 issued by Huntway
pursuant to the Collateralized Note Indenture
(including any secondary securities (as defined in the
Collateralized Note Indenture) but excluding the Senior
Notes (Sunbelt IDB)) in the original aggregate
principal amount of $14,400,000.00.
"Senior Notes (Sunbelt IDB)" means those certain
12% Senior Secured Notes (Sunbelt IDB) due 2006 issued
by Huntway pursuant to the Collateralized Note
Indenture in the original aggregate principal amount of
$9, 100,000.
1. Section 1.01 of the Letter of Credit
Agreement is hereby further amended by deleting the
definitions of "Priority Notes," 'Secondary Securities,"
"Subordinated Note Indenture," "Subordinated Notes,"
"Subordinated Notes (Other)," and "Subordinated Notes
(Sunbelt IDB)" therefrom in their entirety.
1. Section 1.01 of the Letter of Credit
Agreement is hereby further amended by deleting the phrase
"Section 410(f)" from clause (xii) of the definition of
"Permitted Liens' and substituting therefor the phrase
"Section 410(g)".
A. Amendments to Article II: Amount and
Terms of Letters of Credit
1. Section 2.01A of the Letter of Credit
Agreement is hereby amended by deleting the phrase
"Subordinated Note" therefrom and substituting therefor the
phrase "Senior Note".
1. Section 2.01A of the Letter of Credit
Agreement is hereby further amended by adding the following
paragraph to the end thereof:
"Huntway, Sunbelt and Bankers agree that any DIP
Letters of Credit outstanding on the Plan Effective
Date shall for all purposes be deemed to have been
issued under and pursuant to the terms of this
Agreement, and all obligations of Huntway and Sunbelt
under the DIP Letter of Credit Agreement that shall not
have been paid in full on the Plan Effective Date shall
be obligations of Huntway and Sunbelt hereunder.'
1. Section 2.01B of the Letter of Credit
Agreement is hereby amended by deleting it in its entirety
and substituting the following therefor:
"B. Letter of Credit Commitment.
(i) Bankers' commitment to issue and amend
Letters of Credit pursuant to this Section 2.01 from
the Effective Date to and excluding the Commitment
Termination Date is herein referred to as its 'Letter
of Credit Commitment'. The maximum aggregate amount of
the Letter of Credit Commitment of Bankers at any time
is $17,500,000 (the amount available pursuant to
Section 2.01D(i) at any date of determination being the
'Letter of Credit Commitment Amount') and the Letter of
Credit Commitment shall expire on the Commitment
Termination Date. If Huntway requests an increase in
the Letter of Credit Commitment Amount as a result of
increases in the price of crude oil, Bankers shall
respond promptly to such request; provided that,
subject to the following sentence, Bankers shall accept
or deny such request in its sole and absolute
discretion. To the extent Bankers agrees with such
request, no such increase shall become effective until
the consents required by Section 425 of the
Collateralized Note Indenture have been obtained
(provided that the Requisite Holders (as defined in
such indenture) may withhold such consent in their sole
and absolute discretion) and this Agreement has been
appropriately amended. The aggregate face amount of
all Letters of Credit outstanding under this Agreement
shall not exceed the Letter of Credit Commitment
Amount.
(ii) Bankers agrees to extend the Stated
Termination Date of the IDB Letter of Credit from time
to time from the Effective Date to and excluding the
Commitment Termination Date in accordance with the
terms thereof and hereof (the 'IDB Letter of Credit
Commitment'); provided that in no event shall Bankers
amend the IDB Letter of Credit in a manner that would
result in the IDB Letter of Credit having (x) a Stated
Termination Date later than the Commitment Termination
Date or (y) a Stated Termination Date more than 9
months after the date of its most recent amendment.
The IDB Letter of Credit shall not be included within
the defined term 'Letter of Credit' and the amount
available for drawing thereunder shall not be included
in determining usage or availability of the Letter of
Credit Amount. Sunbelt's obligation to reimburse
Bankers for any drawing under the IDB Letter of Credit
has been assumed by Huntway pursuant to the Huntway
Assumption Agreement and is evidenced in part by the
Senior Note (Sunbelt IDB) and in part hereby. No
commission shall be payable hereunder with respect to
the IDB Letter of Credit. Bankers agrees to surrender
the Senior Note (Sunbelt IDB) (or, if any Senior Note
(Sunbelt IDB) has been previously exchanged for or
converted into a Senior Note (Other), such Senior Note
(Other)) for cancellation or exchange for a Senior Note
(Sunbelt IDB) (or, if any Senior Note (Sunbelt IDB) has
been previously exchanged for or converted into a
Senior Note (Other), a Senior Note (Other)) of a lesser
principal amount in accordance with the provisions of
the Collateralized Note Indenture upon, in the case of
an exchange, any reduction in the maximum amount
available for drawing thereunder (other than as a
result of a drawing thereunder) or upon, in the case of
a cancellation, the expiration of the IDB Letter of
Credit without any drawing having been made
thereunder.-
1. Section 2.02(ii) of the Letter of Credit
Agreement is hereby amended by deleting it in its entirety
and substituting the following therefor:
"(ii) Huntway hereby agrees to pay to Bankers
on the date that any Interest Drawing is honored under
the IDB Letter of Credit, a sum equal to the amount of
such drawing. If Huntway shall fail to reimburse
Bankers in full following any Interest Drawing in
accordance with the immediately preceding sentence,
Bankers shall be entitled to surrender the Senior Note
(Sunbelt IDB) for exchange under the Collateralized
Note Indenture for (a) a Senior Note (Other) dated the
date of such drawing in a principal amount equal to the
amount of the unreimbursed portion of such Interest
Drawing and (b) a Senior Note (Sunbelt IDB) dated the
date of the Senior Note (Sunbelt IDB) surrendered for
exchange in a principal amount equal to the principal
amount of the Senior Note (Sunbelt IDB) surrendered for
exchange minus the principal amount of the Senior Note
(Other) received pursuant to clause (a) of this Section
2.02(ii). Promptly after any Principal Drawing under
the IDB Letter of Credit, Bankers shall surrender the
Senior Note (Sunbelt IDB) for exchange under the
Collateralized Note Indenture for (x) a Senior Note
(Other) dated the date of such Principal Drawing in a
principal amount equal to the amount of such drawing
and (y) a Senior Note (Sunbelt IDB) dated the date of
the Senior Note (Sunbelt IDB) surrendered for exchange
in a principal amount equal to the principal amount of
the Senior Note (Sunbelt IDB) surrendered for exchange
minus the principal amount of the Senior Note (Other)
received pursuant to clause (x) of this Section
2.02(ii)."
A. Amendments to Article IV:
Representations and Warranties
1. Section 4.01(h) of the Letter of Credit
Agreement is hereby amended by deleting each reference to
the phrase "December 31, 1992" therefrom and substituting
therefor the phrase "December 31, 1995".
A. Amendments to Article V: Covenants
1. Section 5.01 of the Letter of Credit
Agreement is hereby amended by adding thereto new clauses
(d) and (e) as follows:
"(d) Promptly after each payment by Huntway in
respect of the Senior Notes (Sunbelt IDB) pursuant to
Section 3.07(d) or 3.07(e) of the Collateralized Note
Indenture and each redemption (whether in whole or
part) of the Senior Notes (Sunbelt IDB) pursuant to
Article 10 of the Collateralized Note Indenture,
Sunbelt will direct the trustee under the IDB Indenture
to redeem Sunbelt Bonds in an aggregate principal
amount equal to the amount of such payment or
redemption.
(e) Without limiting the generality of Section
409 of the Collateralized Note Indenture, the Company
will not merge or be consolidated with or transfer
substantially all of its business, property and assets
to a corporation unless (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 Intercreditor Agreement) pursuant to an
assumption agreement in form and substance satisfactory
to Bankers and (iii) on or before such merger,
consolidation or transfer, the definitions, covenants
and other provisions of this Agreement shall have been
amended in order to provide Bankers with the same scope
and degree of protections hereunder after such merger,
consolidation or transfer that would exist hereunder
had such merger, consolidation or transfer not
occurred."
1. Section 6.01(xv) of the Letter of Credit
Agreement is hereby amended deleting it in its entirety and
substituting the following therefor:
"(xv) the General Partner and the Special General
Partner shall cease to be the sole general partners of
Huntway or Huntway shall cease to be the Sunbelt
Managing General Partner; provided, that the General
Partner and the Special General Partner shall not be
required to be general partners of Huntway if Huntway
shall convert to corporate form in accordance with the
terms of that certain letter agreement dated July 22,
1996 by and among Huntway Partners, L.P., Bankers Trust
Company, Huntway Holdings, L.P., Massachusetts Mutual
Life Insurance Company, Mellon Bank, N.A., as Trustee,
Xxxxxxxxxxx & Co., Inc., for itself and as agent, First
Chicago Equity Corporation and Madison Dearborn
Partners III."
A. Amendments to Article VI: Events of
Default
1. Section 6.02 of the Letter of Credit
Agreement is hereby amended by deleting it in its entirety
and substituting the following therefor:
"SECTION 6.02. Upon an Event of Default.
(a) If an Event of Default described under
Section 6.01(viii) or 6.01(ix) occurs, any and all
Obligations (i) then owing or (ii) which would become
owing upon a drawing of any amount available under any
Letter of Credit or the IDB Letter of Credit
(including, without limitation, the obligation to
exchange the Senior Note (Sunbelt IDB) for a Senior
Note (Other) in a like amount) shall automatically
become due and payable (and such exchange of Senior
Notes (Sunbelt IDB) for Senior Notes (Other) shall be
accomplished by an automatic conversion) and the
Commitment of Bankers to issue or amend any Letters of
Credit or the IDB Letter of Credit shall be
automatically terminated. Any amounts described in
clause (ii) above when received by Bankers shall be
delivered to the Collateral Agent pursuant to the
Collateral Account Agreement as cash collateral for the
Obligations and for the Senior Notes, as required by
the Intercreditor Agreement.
(b) If any Event of Default ;hall have occurred
and be continuing (including under Section 6.01(viii)
or 6.01(ix) with respect to clause (iii) below),
Bankers may, in its sole discretion, but shall not be
obligated to, (i) by notice to Huntway and Sunbelt,
declare the Commitment of Bankers to issue or amend any
Letters of Credit or the IDB Letter of Credit to be
terminated, whereupon the same shall forthwith
terminate, (ii) declare any and all Obligations (x)
then owing and (y) which would become owing upon a
drawing of any amount available under any Letter of
Credit or the IDB Letter of Credit (including, without
limitation, the obligation to exchange the Senior Note
(Sunbelt IDB) for a Senior Note (Other) in a like
amount) to be immediately due and payable, or (iii)
exercise any other remedy available to it at law, in
equity or otherwise. Any amounts described in clause
(y) above when received by Bankers shall be delivered
to the Collateral Agent pursuant to the Collateral
Account Agreement as cash collateral for the
Obligations and for the Senior Notes, as required by
the Intercreditor Agreement."
A. Amendments to Article VII:
Miscellaneous
1. Section 7.02 of the Letter of Credit
Agreement is hereby amended by deleting it in its entirety
and substituting the following therefor:
"SECTION 7.02. Notice, Etc. All notices, demands
and other communications provided for hereunder shall,
unless otherwise stated herein, be in writing
(including telex or facsimile notice with telephonic
confirmation) and mailed, sent or delivered, if to
Huntway or Sunbelt at 25129, The Xxx Xxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxxxx 00000, to the attention of the
Chief Financial Officer, and in the case of telecopy to
telecopy no.: (000) 000-0000; if to Bankers, in the
case of deliveries or mailings, at its address at One
Bankers Trust Plaza, Mail Stop 2283, 000 Xxxxxxx
Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx, 00000 and in the
case of telecopy, to telecopy no.: (000) 000-0000, in
each case Attention: Xxxx X. Xxxxx, Managing Director,
or, as to each party, to such other Person and/or at
such other address or number as shall be designated by
such party in a written notice to each other party.
All such notices and communications shall be effective
when mailed or sent, addressed as aforesaid, except
that notices to Bankers pursuant to the provisions of
Article II shall not be effective until received by
Bankers. Notices of any Potential Event of Default
shall be sent by Huntway or Sunbelt to Bankers by telex
or telecopy (with immediate telephonic confirmation)."
I. Section CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective
only upon the satisfaction of the following condition
precedent (the date of satisfaction of such condition(s)
being referred to herein as the "First Amendment Effective
Date"):
1. On or before the First Amendment
Effective Date, each of the conditions precedent to the
effectiveness of the Plan (other than effectiveness of this
Amendment) shall have been satisfied or duly waived.
I. Section MISCELLANEOUS
1. Reference to and Effect on the Letter of
Credit Agreement and Modified Documents.
a) On and after the First Amendment Effective
Date, each reference in the Letter of Credit Agreement to
"this Agreement", 'hereunder', "hereof", "herein" or words
of like import referring to the Letter of Credit Agreement,
and each reference in the Restructured Documents to the
"Letter of Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Letter of Credit
Agreement shall mean and be a reference to the Letter of
Credit Agreement as amended by this Amendment (the "Amended
Agreement").
a) Except as specifically amended by this
Amendment, the Letter of Credit Agreement shall remain in
full force and effect and is hereby ratified and confirmed.
1. Headings. Section and subsection
headings in this Amendment are included herein for
convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any
substantive effect.
1. Applicable Law. THIS AMENDMENT AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK) WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES.
1. Waiver of Jury Trial. EACH PARTY HERETO
HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHT TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OR ACTION BASED UPON OR ARISING OUT OF
THIS AMENDMENT OR ANY DEALINGS BETWEEN OR AMONG THEM
RELATING TO THE SUBJECT MATTER OF THE TRANSACTION
CONTEMPLATED HEREBY AND THE RELATIONSHIP BEING ESTABLISHED.
The scope of this waiver is intended to be all-encompassing
of any and all disputes that may be filed in any court that
relate to the subject matter of the transactions
contemplated hereby, including, without limitation, contract
claims, tort claims, breach of duty claims and all other
common law and statutory claims. Each party hereto
acknowledges that this waiver is a material inducement to
enter into a business relationship, that each has already
relied on the waiver in entering into this Amendment and
that each will continue to rely on the waiver in their
related future dealings. Each party hereto further warrants
and represents that each has reviewed this waiver with its
legal counsel, and that each knowingly and voluntarily
waives its jury trial rights following consultation with
legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT
MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, AMENDMENTS
AND RESTATEMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AMENDMENT OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO EXTENSIONS OF CREDIT PURSUANT TO THIS AGREEMENT.
In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
1. Counterparts. This Amendment may be
executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when
so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and
the same instrument, signature pages may be detached from
multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically
attached to the same document. This Amendment (other than
the provisions of Section I hereof, the effectiveness of
which is governed by Section 2 hereof) shall become
effective upon the execution of a counterpart hereof by each
of the parties hereto and receipt by each of the parties
hereto of written or telephonic notification of such
execution and authorization of delivery thereof.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be duly executed and delivered by their
respective officers thereunto duly authorized as of the date
first written above.
BANKERS TRUST COMPANY
By:
Title:
HUNTWAY PARTNERS, L.P.
By: HUNTWAY MANAGING PARTNER, L.P.,
its Managing General Partner
By: The Huntway Division
of Reprise Holdings, Inc.,
its sole General Partner
By:
Title:
By: HUNTWAY HOLDINGS, L.P.,
its Special General Partner
By: The Huntway Division
of Reprise Holdings, Inc.,
its sole General Partner
By:
Title:
SUNBELT REFINING COMPANY, L.P.
By: HUNTWAY PARTNERS, L.P.,
its sole General partner
By: The Huntway Division
of Reprise Holdings, Inc.,
its sole General Partner
By:
Title:
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be duly executed and delivered by their
respective officers thereunto duly authorized as of the date
first written above.
BANKERS TRUST COMPANY
By:
Title:
HUNTWAY PARTNERS, L.P.
By: HUNTWAY MANAGING PARTNER, L.P.,
its Managing General Partner
By: The Huntway Division
of Reprise Holdings, Inc.,
its sole General Partner
By:
Title:
By: HUNTWAY HOLDINGS, L.P.,
its Special General Partner
By: The Huntway Division
of Reprise Holdings, Inc.,
its sole General Partner
By:
Title:
SUNBELT REFINING COMPANY, L.P.
By: HUNTWAY PARTNERS, L.P.,
its sole General partner
By: The Huntway Division
of Reprise Holdings, Inc.,
its sole General Partner
By:
Title:
ASCII.WPD
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