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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"), Xxxxxxxxxxx & 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"), Xxxxxxx Growth Fund ("Xxxxxxx"), 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, Xxxxxxx 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.
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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, Xxxxxxx and the Junior Lenders, to which termination
the Company, BT, Mass Mutual, Oppenheimer, Mellon, Xxxxxxx 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 Xxxxxxx, 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 Xxxxxxxx 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,
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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, Xxxxxxx and the Junior Lenders, to which
termination the Company and the Exchange Buyers, Xxxxxxx 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, Xxxxxxx 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
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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 Xxxxxxx, 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 Xxxxxxx 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 Xxxxxxx (a) hereby request the Collateral Agent to
execute and deliver this Agreement; and (b) certify to the Collateral Agent
that they
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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.
* * * * *
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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/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
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/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
BANKERS TRUST COMPANY
By: /s/ Xxxx X. Xxxxx
------------------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Xxxxxxx X.. Klofas
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
Signature Page to Sequencing and Amendatory Agreement
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MADISON DEARBORN PARTNERS III
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: General Partner
FIRST CHICAGO EQUITY CORPORATION
By: /s/
---------------------------------------
Name:
Title:
LIGHTHOUSE INVESTORS, L.L.C.
By: Lighthouse Capital, LLC, its Manager
By: /s/ Xxxxxxx X. Xxxxxxx, III
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx, 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/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Member
CONTRARIAN CAPITAL FUND I, L.P.
By: Contrarian Capital Management, LLC, its
general partner
By: /s/ Xxx X. Xxxxx
---------------------------------------
Name: Xxx X. Xxxxx
Title: Partner
Signature Page to Sequencing and Amendatory Agreement
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CONTRARIAN CAPITAL FUND II, L.P.
By: Contrarian Capital Management, LLC, its
general partner
By: /s/ Xxx X. Xxxxx
------------------------------------------
Name: Xxx X. Xxxxx
Title: Partner
CONTRARIAN CAPITAL ADVISORS, L.L.C.,
as agent for the entities listed below its signature
attached hereto.
By: /s/ Xxx X. Xxxxx
------------------------------------------
Name: Xxx X. Xxxxx
Title: Partner
Oppenheimer Horizon Partners, X.X.
Xxxxxxxxxxx Institutional Horizon Partners, X.X.
Xxxxxxxxxxx International Horizon Fund II Ltd.
Xxxxxxxxxxx & Co., Inc.
The & Trust
THE CHASE MANHATTAN BANK As
Directed Trustee For The IBM Retirement
Plan Trust
By: See Rider 1
------------------------------------------
Name:
Title:
XXXXXXX GROWTH FUND
By: Xxxxxx Management Corporation
By: /s/ Xxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: V.P.
Signature Page to Sequencing and Amendatory Agreement
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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/ Xxxxxx Xxxxx
----------------------------------------------------
Name: Xxxxxx Xxxxx
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/ Xxxxxxx Xxxxxx
----------------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Assistant Vice President
FLEET NATIONAL BANK, as trustee under
the Senior Indenture
By: /s/ Xxxxx Xxxxxxxx
----------------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Authorized Officer
STATE STREET BANK AND TRUST COMPANY,
as trustee under the Senior Subordinated Indenture
By: /s/ Xxxxx Xxxxxxxx
----------------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
Signature Page to Sequencing and Amendatory Agreement
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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 Xxxxxxx, 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/ Xxxxxxx X. Xxxxxxx Date: 10/31/97
------------------------------ -------------
XXXXXXX X. XXXXXXX, VICE PRESIDENT
CHASE MANHATTAN BANK
AS DIRECTED TRUSTEE FOR
THE IBM RETIREMENT PLAN TRUST
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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.
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(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.
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(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
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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 "Xxxx X. Xxxxx)" the words ", and to the
trustee under the Senior Subordinated Indenture (at Corporate Trust Department,
Two International Place, 4th Floor, Boston, Massachusetts 02110, Attention:
Xxxxx Xxxxxxxx)".
(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.
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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, Xxxxxxxxxxx &
Company, Inc., as agent for itself and certain affiliated entities,
Xxxxxxx 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.
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
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.
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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
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
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 "Xxxx X. Xxxxx)" the words ", and to the
trustee under the Senior Subordinated Indenture (at Corporate Trust Department,
Two International Place, 4th Floor, Boston, Massachusetts 02110, Attention:
Xxxxx Xxxxxxxx)".
vi
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
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).
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
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)
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
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)
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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:
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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
000 Xxxxxx Xxxxxx, Xxxxx X-0
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx Xxxxxxx
Lighthouse Investors, L.L.C.
c/o Westcliff Capital Management, LLC
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx III
Contrarian Capital Fund I, L.P. or
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Contrarian Capital Fund II, L.P.
c/o Contrarian Capital Management
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxx, 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: Xxxxx Xxxxxxxx (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
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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.
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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
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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.
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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:
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(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.
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