SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarter Ended March 31, 2000 Commission File Number
333-45093
HUNTWAY REFINING COMPANY
(Exact Name of Registrant as Specified in its Charter)
Delaware 95-4680045
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
25129 The Old Road, Suite 322
Newhall, California
(Address of Principal Executive Offices)
91381
(Zip Code)
Registrant's Telephone Number Including Area Code: (661) 286-1582
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes X No .
The number of shares of the registrant's Common Stock, $.01 par value,
outstanding as of May 9, 2000, was 15,004,771.
QUARTERLY REPORT ON FORM 10-Q
HUNTWAY REFINING COMPANY
For the Quarter Ended March 31, 2000
INDEX
Part I. Financial Information
Page
Condensed Consolidated Balance Sheets as
of March 31, 2000 and December 31, 1999 3
Condensed Consolidated Statements of
Operations for the Three Months
Ended March 31, 2000 and 1999 4
Condensed Consolidated Statements of Cash
Flows for the Three Months Ended
March 31, 2000 and 1999 5
Condensed Consolidated Statement of
Capital for the Three Months
Ended March 31, 2000 6
Notes to Condensed Consolidated
Financial Statements 7
Management's Discussion and Analysis
of Results of Operations and
Financial Condition 9
Quantitative and Qualitative Disclosures
About Market Risk 13
Part II. Other Information 14
HUNTWAY REFINING COMPANY
CONSOLIDATED BALANCE SHEETS
March 31, December 31,
2000 1999
CURRENT ASSETS:
Cash and Cash Equivalents $3,805,000 $10,445,000
Accounts Receivable - Net 6,293,000 8,444,000
Inventories 10,873,000 2,754,000
Prepaid Expenses 1,229,000 1,309,000
Total Current Assets 22,200,000 22,952,000
PROPERTY - Net 65,368,000 64,398,000
OTHER ASSETS - Net 2,061,000 2,059,000
GOODWILL - Net 1,573,000 1,587,000
TOTAL ASSETS $91,202,000 $90,996,000
CURRENT LIABILITIES:
Accounts Payable $9,229,000 $8,528,000
Current Portion of Long-Term Debt 1,587,000 1,548,000
Accrued Interest 918,000 608,000
Other Accrued Liabilities 454,000 975,000
Total Current Liabilities 12,188,000 11,659,000
Long-Term Debt 34,777,000 34,905,000
Deferred Income Taxes and
Other Long-Term Obligations 2,783,000 2,783,000
CAPITAL:
Preferred Stock (1,000,000 shares
authorized, none issued) - -
Common Stock (75,000,000 shares
authorized, 15,004,771 outstanding) 150,000 150,000
Additional Paid-In Capital 34,757,000 34,698,000
Retained Earnings 6,547,000 6,801,000
Total Capital 41,454,000 41,649,000
TOTAL LIABILITIES AND CAPITAL $91,202,000 $90,996,000
HUNTWAY REFINING COMPANY
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
Three Months Three Months
Ended Ended
March 31, March 31,
2000 1999
(Unaudited) (Unaudited)
SALES $23,853,000 $12,599,000
COSTS AND EXPENSES:
Material and Processing Costs 21,673,000 9,869,000
Selling and Administration Expenses 1,231,000 1,272,000
Interest Expense 824,000 856,000
Depreciation and Amortization 556,000 567,000
Total Costs and Expenses 24,284,000 12,564,000
INCOME (LOSS) BEFORE INCOME TAXES (431,000) 35,000
Provision (Benefit) for Income Taxes (177,000) 14,000
NET INCOME (LOSS) $(254,000) $21,000
Net Income (Loss) per Basic Share $(0.02) $-
Net Income (Loss) per Diluted Share $(0.02) $-
Weighted Average Basic
Common Shares Outstanding 15,004,771 14,898,000
Weighted Average Diluted
Common Shares Outstanding 15,004,771 16,887,000
HUNTWAY REFINING COMPANY
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
Three Months Three Months
Ended Ended
March 31, March 31,
2000 1999
(Unaudited) (Unaudited)
CASH FLOWS FROM OPERATING ACTIVITIES:
Net Income (Loss) $(254,000) $21,000
Adjustments to Reconcile Net Income
to Net Cash Provided by
Operating Activities:
Interest Expense Paid by the
Issuance of Notes 286,000 278,000
Depreciation and Amortization 556,000 567,000
Deferred Income Taxes - 14,000
Changes in Operating Assets
and Liabilities:
Decrease (Increase) in
Accounts Receivable 2,151,000 (102,000)
Increase in Inventories (7,977,000) (2,224,000)
Decrease (Increase) in
Prepaid Expenses 102,000 (886,000)
Increase in Accounts Payable 701,000 2,351,000
Decrease in Accrued Liabilities (111,000) (1,008,000)
NET CASH USED BY OPERATING ACTIVITIES (4,546,000) (989,000)
CASH FLOWS FROM INVESTING ACTIVITIES:
Additions to Property (1,532,000) (1,889,000)
Other Assets (87,000) (469,000)
NET CASH USED BY INVESTING ACTIVITIES (1,619,000) (2,358,000)
CASH FLOWS FROM FINANCING ACTIVITIES:
Issuance of Common Stock - 109,000
Proceeds of Notes Payable - 13,390,000
Repayment of Long-term Obligations (475,000) (13,031,000)
NET CASH PROVIDED (USED)
BY FINANCING ACTIVITIES (475,000) 468,000
NET DECREASE IN CASH (6,640,000) (2,879,000)
CASH BALANCE - BEGINNING OF PERIOD 10,445,000 10,910,000
CASH BALANCE - END OF PERIOD $3,805,000 $8,031,000
Supplemental Disclosures:
Interest Paid in Cash During the Period $228,000 $302,000
Income Taxes Paid in Cash During the Period $- $-
HUNTWAY REFINING COMPANY
CONDENSED CONSOLIDATED STATEMENT OF CAPITAL
Common Additional Treasury
Shares Common Paid In Retained Stock Total
Outstanding Stock Capital Earnings (atcost) Capital
Balance at
January 1,
2000 15,004,771 $158,000 $34,699,000 $6,801,000 $(9,000)$41,649,000
Earned
Portion
of Option
Awards 59,000 59,000
Exercise of
Stock Options
Net Loss for
the Three Months
Ended March 31,
2000 (254,000) (254,000)
Balance at
March 31,
2000 15,004,771 $158,000 $34,758,000 $6,547,000 $(9,000)$41,454,000
HUNTWAY REFINING COMPANY AND SUBSIDIARY
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1. CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
The accompanying condensed consolidated financial statements of Huntway
Refining Company and subsidiary as of March 31, 2000 and December 31, 1999
and for the three month periods ended March 31, 2000 and 1999 are unaudited,
but in the opinion of management, reflect all adjustments (consisting only
of normal recurring adjustments) necessary for fair presentation of such
financial statements in accordance with generally accepted accounting
principles. The results of operations for an interim period are not
necessarily indicative of results for a full year. The condensed consolidated
financial statements should be read in conjunction with the consolidated
financial statements and notes thereto contained in the Companys annual
report for the year ended December 31, 1999.
Crude oil and finished product inventories are stated at cost determined
by the last-in, first-out method, which is not in excess of market. For the
first three months of 2000 and 1999, the effect of LIFO was to decrease net
income by approximately $759,000 and approximately $155,000, respectively.
Inventories at March 31, 2000 and December 31, 1999 were as follows:
2000 1999
Finished Products $8,163,000 $2,264,000
Crude Oil and Supplies 6,069,000 2,583,000
14,232,000 4,847,000
Less LIFO Reserve (3,359,000) (2,093,000)
Total $10,873,000 $2,754,000
2. CONTINGENCIES
The Companys business is the refining of crude oil into liquid asphalt
and other light-end products, which is subject to various environmental laws
and regulations. Adherence to these environmental laws and regulations creates
the opportunity for unknown costs and loss contingencies to arise in the
future. Unknown costs and loss contingencies could also occur due to the
nature of the Companys business. The Company is not aware of any costs or
loss contingencies relating to environmental laws and regulations that have
not been recorded in its financial statements. However, future environmental
costs cannot be reasonably estimated due to unknown factors. Although
environmental costs may have a significant impact on results of operations for
any single period, the Company believes that such costs will not have a
material adverse effect on the consolidated financial position, results of
operations or cash flows of the Company.
The Company is party to a number of lawsuits and other proceedings
arising in the ordinary course of its business. While the results of such
lawsuits and proceedings cannot be predicted with certainty, management does
not expect that the ultimate liability, if any, will have a material adverse
effect on the consolidated financial position, results of operations or cash
flows of the Company.
3. SUBSEQUENT EVENT
On April 12, 2000 the Company entered into a new $2,500,000 senior
secured note with Boeing Capital Corporation. The note bears interest at
10.705% and is due over the next three years. $1,250,000 will be repaid
ratably over the period with the remaining $1,250,000 paid at maturity. Along
with the existing senior secured note, the new note is collateralized by the
Companys non-current assets.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
In the following discussion, Huntway or the Company refers to
Huntway Partners, L.P. prior to June 1, 1998 and to Huntway Refining
Company thereafter. The following discussion should be read in conjunction
with the financial statements included elsewhere in this report and the
financial statements and Managements Discussion and Analysis of Results of
Operations and Financial Condition included in Huntway's annual report for
1999 on Form 10-K. All per share amounts are diluted.
This Form 10-Q contains certain forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Securities Exchange Act of 1934, as amended, and we
intend that such forward-looking statements be subject to the safe harbors
created thereby. Such forward-looking statements involve risks and
uncertainties and include, but are not limited to, such statements
regarding future events and our plans, goals and objectives. Such
statements are generally accompanied by words such as intend,
anticipate, believe, estimate, expect, looks, probably, should or
similar statements. Our actual results or events may differ materially
from such statements.
Important factors that could cause actual results to
differ materially from those indicated by such forward-looking statements
are set forth in Managements Discussion and Analysis of Results of
Operations and Financial Condition (including, but not limited to,
Outlook and Factors that Affect Future Results) in Huntways annual
report on Form 10K for the year ended December 31, 1999.
Such factors include without limitation the price and availability
of crude oil, demand for liquid asphalt and light-end products and
government and private funding for road construction and repair as well
as disruptions in operations as a result of extended periods of inclement
weather or natural disaster and increased competition from other refiners.
Although we believe that the assumptions underlying our forward-looking
statements are reasonable, any of the assumptions could prove inaccurate
and, therefore, there can be no assurance that the results contemplated
in such forward-looking statements will be realized. The inclusion of
such forward-looking information should not be regarded as a
representation by us or any other person that the future events,
plans or expectations contemplated by us will be achieved.
Results of Operations
Huntway is principally engaged in the processing and sale of liquid
asphalt products, as well as the production of other refined petroleum
products such as gas oil, naphtha, kerosene distillate, diesel fuel, jet
fuel and bunker fuel.
Huntway's ability to generate income depends principally upon the
margins between the prices for its refined petroleum products and the cost
of crude oil, as well as upon demand for liquid asphalt, which affects both
price and sales volume.
Historically, refined petroleum product prices (including prices for
liquid asphalt, although to a lesser degree than Huntway's other refined
petroleum products) generally fluctuate with crude oil price levels. There
has not been a relationship between total revenues and income due to the
volatile commodity character of crude oil prices. As a result,
management believes that increases or decreases in revenues is not a
meaningful basis for comparing historical results of operations.
Three Months Ended March 31, 2000 Compared with the Three Months Ended
March 31, 1999
First quarter 2000 net loss was $254,000, or $.02 per share, versus
1999 first quarter net income of $21,000, or less than one cent per share.
The following table sets forth the effects of changes in price and
volume on sales and material and processing costs on the quarter ended
March 31, 2000 as compared to the quarter ended March 31, 1999:
Material & Net Refining Barrels
Sales Processing Margin Sold
Three Months Ended
March 31, 1999 $12,599,000 $9,869,000 $2,730,000 813,000
Effect of changes
in price 11,254,000 11,804,000 (550,000)
Effect of changes
in volume - - - -
Three Months
Ended
March 31, 2000 $23,853,000 $21,673,000 $2,180,000 813,000
The decline in net refining margin of $550,000 or 20% in the first
quarter of 2000 versus the first quarter of 1999 was entirely the result of
increased material and processing costs that were not recovered by rising
selling prices as unit volumes were flat between quarters. Overall,
material and processing costs more than doubled as the cost of Huntways
crude oil purchases increased from $8.96 a barrel in the first quarter of
1999 to $22.74 a barrel in the first quarter of 2000. This increase in
crude oil costs was the result of a slow down in production by certain
producing nations and an increase in world wide demand particularly in Asia
as the economies in that part of the world recover.
Overall product prices nearly doubled increasing by 89% due to higher
product prices caused by increased crude oil costs. Asphalt prices rose
between quarters by 39% due to the impact of higher crude oil prices.
Intermediate refinery feedstock prices rose 142% in response to increasing
crude oil prices as well as increased demand due to a perception of
gasoline and diesel fuel shortages due to reported declines in inventories
in the western United States (PADD 5), shortages of heating oil in New
England and a series of refinery production shortfalls due to equipment
problems in Huntways market area.
Although sales volumes were flat between quarters, in April 2000, the
Company placed in service a new 155,000 barrel asphalt storage tank
at the Benicia refinery. Management believes that the new tank along
with improvements made to the refinery in 1999 should enable the
Company to increase sales volume in all of 2000 by up to 10% over
the level achieved in 1999.
Selling, general and administrative costs decreased by $41,000 as
compared to the first quarter of 1999, primarily as a result of decreased
investor relations expenditures.
Net interest expense decreased in the quarter by a nominal $32,000
due to lower debt levels.
Depreciation and amortization declined in the quarter by $11,000
despite the increase in depreciable property between quarters (primarily
the Benicia modernization) due to increased production levels.
Because of the foregoing, as well as other factors affecting the
Companys operating results, past financial performance should not be
considered to be a reliable indicator of future performance and investors
should not use historical trends to anticipate results or trends in future
periods.
Capital Resources And Liquidity
The Companys cash requirements and liquidity position are affected
by various factors, including the selling prices for its refined products
(liquid asphalt and light-end products) and the price of crude oil. The
selling prices for asphalt products are influenced by the price of crude
oil and by local market supply and demand factors for asphalt, including
public and private demand for road construction and improvements. The
selling prices for Huntways light end products (naphtha, kerosene
distillate and gas oil) are also strongly impacted by the price of crude
oil and by supply and demand factors for finished gasoline and diesel
products in California. Fluctuations in the cost of crude oil are impacted
by a myriad of market factors, both foreign and domestic.
The other primary factors that affect the Companys investment
requirements and liquidity position generally include the timing and
funding of capital expenditures either to improve operations and business
growth or to comply with environmental regulations, to provide for the
funding of inventories and accounts receivables during periods of
increasing crude costs and to provide for the funding of increasing
inventory and accounts receivable during the months prior to (generally
December through March) and during the initial start (generally April
through June) of the annual paving season.
In the first three months of 2000, operating activities used
$4,546,000 in cash. The periods net loss of $254,000 offset by
depreciation and amortization of $556,000 and by the payment of interest by
the issuance of notes of $286,000 provided $588,000 in cash. Additionally,
net collections of accounts receivable and an increase in accounts payable
provided $2,151,000 and $701,000 in cash,respectively.
These increases were more
than offset by the seasonal increase in inventories which used $7,977,000
in cash. Other changes only used cash of $9,000.
In comparison, in the first three months of 1999, operating
activities used $989,000 in cash. The periods net income of $21,000 along
with depreciation and amortization of $567,000, the payment of interest by
the issuance of notes of $278,000 and a provision for deferred income taxes
of $14,000 provided $880,000 in cash. Additionally, an increase in
accounts payable provided $2,351,000 in cash. Offsetting these sources
of cash was
a seasonal increase in inventory of $2,224,000 and a nominal increase in
accounts receivable of $102,000. Additionally, other accrued liabilities
decreased, requiring cash of $1,008,000 primarily for payment of incentive
plan awards and prepaid expenses consumed $886,000 in cash primarily for the
renewal of insurance coverage and to a lesser extent turnaround costs
associated with the Wilmington refinery.
During the first three months of 2000, investing activities consumed
$1,619,000 in cash. Additions to property, primarily for a new 155,000
barrel asphalt tank at the Benicia refinery, required cash of $1,532,000,
while additions to other assets, primarily loan costs associated with the
new term debt used $87,000 in cash. During the first quarter of 1999,
investing activities consumed $2,358,000 in cash. Additions to property,
primarily construction in progress for modernization of the Benicia refinery,
required $1,889,000 in cash while additions to other assets,
primarily loan costs associated with the new term debt facility, used
cash of $469,000.
Financing activities consumed $475,000 in cash in the first three months of
2000 as a result of monthly principal payments on long-term debt. In
contrast, financing activities, primarily the funding of the then new term
loan facility and the related retirement of the senior notes, provided
$468,000 in cash during the first quarter of 1999.
On October 29, 1999 the Company terminated its then existing
$17,500,000 letter of credit facility and entered into a new $20,000,000
revolving credit facility with Bank of America, N.A. (The Bank). The new
facility is collateralized by the Companys current assets and is subject
to a borrowing base limitation. Up to $10,000,000 of the facility may be
borrowed for working capital purposes but it will primarily be used for the
issuance of standby letters of credit for the purchase of crude oil.
Borrowings under the facility generally bear interest at the Banks
reference rate, 8.75% at March 31, 2000, while letter of credit fees are
1.5% (versus 2.0% under the prior facility) on the face amount. There is
also a .25% fee (versus .50% under the old facility) on the unused portion
of the facility. Up to $2,000,000 may be used for the issuance of standby
letters of credit supporting crude oil hedging arrangements. The facility
expires on June 1, 2001.
The Company believes that its new credit facilities are sufficient to
guarantee requirements for crude oil purchases, collateralization of other
obligations and for hedging activities at current crude price levels.
However, due to the volatility in the price of crude oil there can be no
assurance that this facility will be adequate in the future. If crude oil
prices increased beyond the level of the Company's ability to extend
letters of credit, it may be required to prepay for crude oil or reduce its
crude oil purchases, either of which would adversely impact profitability.
At March 31, 2000 the cash position of the Company was $3,805,000, a
decrease of $4,226,000 from the balance at March 31, 1999 of $8,031,000.
This decline results from the funding of approximately $7,000,000 of
capital expenditures in 1999 with internally generated cash flows as well
as an increase in the amount of cash required to fund seasonal increases in
inventory due to the run up in crude oil prices between quarters and a
increase in volume of 12%. In the opinion of management, cash on hand,
together with anticipated future cash flows, will be sufficient to meet
Huntway's liquidity obligations for the next 12 months.
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
As previously noted, the Companys profitability depends largely on
the spread between market prices for its refined products and its crude oil
costs. A substantial and prolonged decrease in this overall spread would
have a significant negative effect on the Companys earnings, financial
position and cash flows. Approximately half of Huntways production
consists of light products and half of asphalt. The prices of Huntways
light products have historically followed changes in crude oil prices over
12- to 18-month time periods despite high short-term volatility.
Management believes that approximately 15% of Huntways asphalt unit sales
volume will be covered by contractual escalation and de-escalation clauses
with various state highway agencies, which are based upon various crude oil
cost indexes. In an effort to mitigate the remaining risk, the Company
enters into contracts intended to partially hedge its exposure to crude oil
price fluctuations. Historically, such contracts are zero cost collars
under which the Company receives or makes a monthly payment if crude oil
prices for the month rise above, or fall below, the contracts ceiling or
floor levels, respectively. The Company does not enter into such
arrangements for trading or other speculative purposes.
To a lesser extent, the Company is also exposed to risks associated
with interest rate fluctuations. However, because the Company invests only
in short-term investment grade securities and has only fixed rate debt,
such risks to its cash flows are not material.
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
The Company is party to a number of lawsuits and other proceedings
arising in the ordinary course of its business. While the results of such
lawsuits and proceedings cannot be predicted with certainty, management does
not expect that the ultimate liability, if any, will have a material adverse
effect on the consolidated financial position, results of operations or the
cash flows of the Company.
Item 2. Changes in Securities
Not applicable.
Item 3. Defaults Upon Senior Securities
None.
Item 4. Submission of Matters to a Vote of Security Holders
None.
Item 5. Other Information
None
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
3.2 Amended and Restated Bylaws of Huntway Refining Company
4.4 Second Supplemental Indenture dated as of March 30, 1998
between Huntway Partners, L.P. and State Street Bank and
Trust Company, as trustee, relating to the 9.25% Senior
Subordinated Secured Convertible Notes due 2007
4.5 Third Supplemental Indenture dated as of June 1, 1998 between
Huntway Refining Company, successor by merger to Huntway
Partners L.P., and State Street Bank and Trust Company, as
trustee, relating to the 9.25% Senior Subordinated Secured
Convertible Notes due 2007
4.6 Fourth Supplemental Indenture dated as of April 7, 2000
between Huntway Refining Company and State Street Bank and
Trust Company, as Trustee, relating to the 9.25% Senior
Subordinated Secured Notes due 2007
4.10 Second Supplemental Indenture dated as of April 7, 1999
between Huntway Refining Company and IBJ Whitehall Bank
& Trust Company (f/k/a IBJ Schroder Bank & Trust Company),
as trustee, relating to the Junior Subordinated Notes due 2005
4.11 Third Supplemental Indenture dated as of April 10, 2000
between Huntway Refining Company and The Bank of New York,
as trustee (succeeding IBJ Whitehall Bank & Trust Company),
relating to the Junior Subordinated Notes due 2005
4.16 Amendment Number Two to Loan Agreement dated as of April 12,
2000 between Boeing Capital Corporation and Huntway Refining
Company
4.17 Secured Promissory Note Term Loan B dated as of April 12,
2000 issued by Huntway Refining Company to Boeing Capital
Corporation
4.18 Business Loan Agreement (Receivables and Inventory) dated as of
October 29, 1999 between Bank of America, N.A. and Huntway
Refining Company (incorporated by reference herein to Exhibit
4.18 of the Report of Huntway Refining Company on Form 10-Q,
filed on September 30, 1999, Commission File No. 333-45093)
4.19 Second Refinancing and Amendatory Agreement dated as of October
29, 1999 among Huntway Refining Company, a Delaware corporation
(the Company), Sunbelt Refining Company, L.P. (Sunbelt),
Bankers Trust Company (BT), Boeing Capital Corporation
(Boeing Capital), Lighthouse Investors, L.L.C., a Delaware
limited liability company (Lighthouse), B III Capital
Partners, L.P., a Delaware limited partnership (B III),
Contrarian Capital Fund, I, L.P., a Delaware limited
partnership (Contrarian I), Contrarian Capital Fund II, L.P.,
a Delaware limited partnership (Contrarian II), Mellon Bank,
N.A., as trustee for First Plaza Group Trust (Mellon),
Contrarian Capital Advisors, L.L.C., as agent for the entities
listed under its signature hereon (Contrarian), and The IBM
Retirement Plan Trust (IBM; Lighthouse, B III, Contrarian I,
Contrarian II, Mellon, Contrarian and IBM being sometimes
referred to as the Senior Subordinated Lenders), Madison
Dearborn Partners III and First Chicago Equity Corporation (the
Junior Lenders), United States Trust Company of New York, as
Collateral Agent under the Existing Intercreditor Agreement
referred to below (the Collateral Agent), State Street Bank
and Trust Company, as trustee under the Senior Subordinated
Indenture referred to below (the Senior Subordinated
Trustee), and Bank of America, N.A. (B of A) (incorporated
by reference herein to Exhibit 4.2 of the Report of Huntway
Refining Company on Form 10-Q, filed on September 30, 1999,
Commission File No. 333-45093)
(b) Reports on Form 8-K
None
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized, on May 15, 2000.
HUNTWAY REFINING COMPANY
(Registrant)
By: /s/ Earl G. Fleisher
Chief Financial Officer
(Principal Accounting Officer)
BY-LAWS
OF
HUNTWAY REFINING COMPANY
A Delaware Corporation
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of Huntway
Refining Company (the "Corporation") in the State of Delaware shall be located
at 1209 Orange Street, in the City of Wilmington, County of New Castle 19801.
The name of the Corporation's registered agent at such address shall be The
Corporation Trust Company. The registered office and/or registered agent of
the Corporation may be changed from time to time by action of the Board of
Directors.
Section 2. Other Offices. The Corporation may also have offices at
such other places, both within and without the State of Delaware, as the Board
of Directors may from time to time determine or the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting. An annual meeting of the stockholders
shall be held each year within 150 days after the close of the immediately
preceding fiscal year of the Corporation or at such other time specified by
the Board of Directors for the purpose of electing Directors and conducting
such other proper business as may come before the annual meeting. At the
annual meeting, stockholders shall elect Directors and transact such other
business as properly may be brought before the annual meeting pursuant to
Section 11 of this ARTICLE II.
Section 2. Special Meetings. Special meetings of the stockholders may
only be called in the manner provided in the Certificate of Incorporation.
Section 3. Place of Meetings. The Board of Directors may designate any
place, either within or without the State of Delaware, as the place of meeting
for any annual meeting or for any special meeting. If no designation is made,
or if a special meeting be otherwise called, the place of meeting shall be the
principal executive office of the Corporation. If for any reason any annual
meeting shall not be held during any year, the business thereof may be
transacted at any special meeting of the stockholders.
Section 4. Notice. Whenever stockholders are required or permitted to
take action at a meeting, written or printed notice stating the place, date,
time and, in the case of special meetings, the purpose or purposes, of such
meeting, shall be given to each stockholder entitled to vote at such meeting
not less than 10 nor more than 60 days before the date of the meeting. All
such notices shall be delivered, either personally or by mail, by or at the
direction of the Board of Directors, the chairman of the board, the president
or the secretary, and if mailed, such notice shall be deemed to be delivered
when deposited in the United States mail, postage prepaid, addressed to the
stockholder at his, her or its address as the same appears on the records of
the Corporation. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends for the
express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened.
Section 5. Stockholders List. The officer having charge of the stock
ledger of the Corporation shall make, at least 10 days before every meeting of
the stockholders, a complete list of the stockholders entitled to vote at such
meeting arranged in alphabetical order, showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least 10 days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 6. Quorum. The holders of a majority of the outstanding shares
of capital stock entitled to vote, present in person or represented by proxy,
shall constitute a quorum at all meetings of the stockholders, except as
otherwise provided by the General Corporation Law of the State of Delaware or
by the Certificate of Incorporation. If a quorum is not present, the holders
of a majority of the shares present in person or represented by proxy at the
meeting, and entitled to vote at the meeting, may adjourn the meeting to
another time and/or place. When a specified item of business requires a vote
by a class or series (if the Corporation shall then have outstanding shares of
more than one class or series) voting as a class or series, the holders of a
majority of the shares of such class or series shall constitute a quorum (as
to such class or series) for the transaction of such item of business.
Section 7. Adjourned Meetings. When a meeting is adjourned to another
time and place, notice need not be given of the adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the Corporation may transact any business
which might have been transacted at the original meeting. If the adjournment
is for more than 30 days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
Section 8. Vote Required. When a quorum is present, the affirmative
vote of the majority of shares present in person or represented by proxy at
the meeting and entitled to vote on the subject matter shall be the act of the
stockholders, unless (i) by express provisions of an applicable law or of the
Certificate of Incorporation a different vote is required, in which case such
express provision shall govern and control the decision of such question, or
(ii) the subject matter is the election of Directors, in which case Section 2
of ARTICLE III hereof shall govern and control the approval of such subject
matter.
Section 9. Voting Rights. Except as otherwise provided by the General
Corporation Law of the State of Delaware, the Certificate of Incorporation or
these By-laws, every stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of common stock held
by such stockholder.
Section 10. Proxies. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for him or
her by proxy, but no such proxy shall be voted or acted upon after three years
from its date, unless the proxy provides for a longer period. A duly executed
proxy shall be irrevocable if it states that it is irrevocable and if, and
only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power. A proxy may be made irrevocable regardless of whether
the interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally. Any proxy is suspended when the person
executing the proxy is present at a meeting of stockholders and elects to
vote, except that when such proxy is coupled with an interest and the fact of
the interest appears on the face of the proxy, the agent named in the proxy
shall have all voting and other rights referred to in the proxy,
notwithstanding the presence of the person executing the proxy. At each
meeting of the stockholders, and before any voting commences, all proxies
filed at or before the meeting shall be submitted to and examined by the
secretary or a person designated by the secretary, and no shares may be repre-
sented or voted under a proxy that has been found to be invalid or irregular.
Section 11. Business Brought Before an Annual Meeting. At an annual
meeting of the stockholders, only such business shall be conducted as shall
have been properly brought before the meeting. To be properly brought before
an annual meeting, business must be (i) specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the Board of
Directors, (ii) brought before the meeting by or at the direction of the Board
of Directors or (iii) otherwise properly brought before the meeting by a
stockholder. For business to be properly brought before an annual meeting by
a stockholder, the stockholder must have given timely notice thereof in
writing to the secretary of the Corporation. To be timely, a stockholder's
notice must be delivered to or mailed and received at the principal executive
offices of the Corporation, not less than 60 days nor more than 90 days prior
to the meeting; provided, however, that in the event that less than 70 days'
notice or prior public announcement of the date of the meeting is given or
made to stockholders, notice by the stockholder to be timely must be so
received not later than the close of business on the 10th day following the
date on which such notice of the date of the annual meeting was mailed or such
public announcement was made. A stockholder's notice to the secretary shall
set forth as to each matter the stockholder proposes to bring before the
annual meeting (i) a brief description of the business desired to be brought
before the annual meeting, (ii) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business, (iii) the
class and number of shares of the Corporation which are beneficially owned by
the stockholder and (iv) any material interest of the stockholder in such
business. Notwithstanding anything in these By-laws to the contrary, no
business shall be conducted at an annual meeting except in accordance with the
procedures set forth in this section. The presiding officer of an annual
meeting shall, if the facts warrant, determine and declare to the meeting that
business was not properly brought before the meeting and in accordance with
the provisions of this section; if he should so determine, he shall so declare
to the meeting and any such business not properly brought before the meeting
shall not be transacted. For purposes of this section, "public announcement"
shall mean disclosure in a press release reported by Dow Jones News Service,
Associated Press or a comparable national news service. Nothing in this
section shall be deemed to affect any rights of stockholders to request
inclusion of proposals in the Corporation's proxy statement pursuant to Rule
14a-8 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
ARTICLE III
Directors
Section 1. General Powers. The business and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors. In
addition to such powers as are herein and in the Certificate of Incorporation
expressly conferred upon it, the Board of Directors shall have and may
exercise all the powers of the Corporation, subject to the provisions of the
laws of Delaware, the Certificate of Incorporation and these By-laws.
Section 2. Number, Election and Term of Office. Subject to the
provisions of the Certificate of Incorporation and to any rights of the
holders of any series of Preferred Stock to elect additional Directors under
specified circumstances, the number of Directors which shall constitute the
Board of Directors shall be fixed from time to time by resolution adopted by
the affirmative vote of a majority of the total number of Directors then in
office. The Directors shall be elected by a plurality of the votes of the
shares present in person or represented by proxy at the meeting and entitled
to vote in the election of Directors; provided that, whenever the holders of
any class or series of capital stock of the Corporation are entitled to elect
one or more Directors pursuant to the provisions of the Certificate of
Incorporation of the Corporation (including, but not limited to, for purposes
of these By-laws, pursuant to any duly authorized certificate of designation),
such Directors shall be elected by a plurality of the votes of such class or
series present in person or represented by proxy at the meeting and entitled
to vote in the election of such Directors. The Directors shall be elected and
shall hold office only in the manner provided in the Certificate of
Incorporation.
Section 3. Removal and Resignation. No Director may be removed from
office without cause and without the affirmative vote of the holders of a
majority of the voting power of the then outstanding shares of capital stock
entitled to vote generally in the election of Directors voting together as a
single class; provided, however, that if the holders of any class or series of
capital stock are entitled by the provisions of the Certificate of
Incorporation (it being understood that any references to the Certificate of
Incorporation shall include any duly authorized certificate of designation) to
elect one or more Directors, such Director or Directors so elected may be
removed without cause only by the vote of the holders of a majority of the
outstanding shares of that class or series entitled to vote. Any Director may
resign at any time upon written notice to the Corporation.
Section 4. Vacancies. Vacancies and newly created directorships
resulting from any increase in the total number of Directors may be filled
only in the manner provided in the Certificate of Incorporation.
Section 5. Nominations.
(a) Only persons who are nominated in accordance with the
procedures set forth in these By-laws shall be eligible to serve as Directors.
Nominations of persons for election to the Board of Directors of the
Corporation may be made at a meeting of stockholders (i) by or at the
direction of the Board of Directors or (ii) by any stockholder of the
Corporation who was a stockholder of record at the time of giving of notice
provided for in this By-law, who is entitled to vote generally in the election
of Directors at the meeting and who shall have complied with the notice
procedures set forth below in Section 5(b).
(b) In order for a stockholder to nominate a person for election
to the Board of Directors of the Corporation at a meeting of stockholders,
such stockholder shall have delivered timely notice of such stockholder's
intent to make such nomination in writing to the secretary of the Corporation.
To be timely, a stockholder's notice shall be delivered to or mailed and
received at the principal executive offices of the Corporation (i) in the case
of an annual meeting, not less than 60 nor more than 90 days prior to the
first anniversary of the preceding year's annual meeting; provided, however,
that in the event that the date of the annual meeting is changed by more than
30 days from such anniversary date, notice by the stockholder to be timely
must be so received not later than the close of business on the 10th day
following the earlier of the day on which notice of the date of the meeting
was mailed or public disclosure of the meeting was made, and (ii) in the case
of a special meeting at which Directors are to be elected, not later than the
close of business on the 10th day following the earlier of the day on which
notice of the date of the meeting was mailed or public disclosure of the
meeting was made. Such stockholder's notice shall set forth (i) as to each
person whom the stockholder proposes to nominate for election as a Director at
such meeting all information relating to such person that is required to be
disclosed in solicitations of proxies for election of Directors, or is
otherwise required, in each case pursuant to Regulation 14A under the Exchange
Act (including such person's written consent to being named in the proxy
statement as a nominee and to serving as a Director if elected); (ii) as to
the stockholder giving the notice (A) the name and address, as they appear on
the Corporation's books, of such stockholder and (B) the class and number of
shares of the Corporation which are beneficially owned by such stockholder and
also which are owned of record by such stockholder; and (iii) as to the
beneficial owner, if any, on whose behalf the nomination is made, (A) the name
and address of such person and (B) the class and number of shares of the
Corporation which are beneficially owned by such person. At the request of
the Board of Directors, any person nominated by the Board of Directors for
election as a Director shall furnish to the secretary of the Corporation that
information required to be set forth in a stockholder's notice of nomination
which pertains to the nominee.
(c) No person shall be eligible to serve as a Director of the
Corporation unless nominated in accordance with the procedures set forth in
this section. The chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by this section, and if he should so
determine, he shall so declare to the meeting and the defective nomination
shall be disregarded. A stockholder seeking to nominate a person to serve as
a Director must also comply with all applicable requirements of the Exchange
Act, and the rules and regulations thereunder with respect to the matters set
forth in this section.
Section 6. Annual Meetings. The annual meeting of the Board of
Directors shall be held without other notice than this By-law immediately
after, and at the same place as, the annual meeting of stockholders.
Section 7. Other Meetings and Notice. Regular meetings, other than the
annual meeting, of the Board of Directors may be held without notice at such
time and at such place as shall from time to time be determined by resolution
of the Board of Directors. Special meetings of the Board of Directors may be
called by the chairman of the board, the president (if the president is a
Director) or, upon the written request of at least a majority of the Directors
then in office, the secretary of the Corporation on at least 24 hours notice
to each Director, either personally, by telephone, by mail or by telecopy.
Section 8. Chairman of the Board, Quorum, Required Vote and
Adjournment. The Board of Directors shall appoint from among the Directors,
by the affirmative vote of a majority of the total number of Directors then in
office, a chairman of the board, who shall preside at all meetings of the
stockholders and Board of Directors at which he or she is present. If the
chairman of the board is not present at a meeting of the stockholders or the
Board of Directors, the president (if the president is a Director and is not
also the chairman of the board) shall preside at such meeting, and, if the
president is not present at such meeting, a majority of the Directors present
at such meeting shall elect one of their members to so preside. A majority of
the total number of Directors then in office shall constitute a quorum for the
transaction of business. Unless by express provision of an applicable law,
the Certificate of Incorporation or these By-laws a different vote is
required, the vote of a majority of Directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors. If a quorum
shall not be present at any meeting of the Board of Directors, the Directors
present thereat may adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present.
Section 9. Committees. The Board of Directors may, by resolution
passed by a majority of the total number of Directors then in office,
designate one or more committees, each committee to consist of one or more of
the Directors of the Corporation, which to the extent provided in such
resolution or these By-laws shall have, and may exercise, the powers of the
Board of Directors in the management and affairs of the Corporation, except as
otherwise limited by law. The Board of Directors may designate one or more
Directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. Such committee or
committees shall have such name or names as may be determined from time to
time by resolution adopted by the Board of Directors. Each committee shall
keep regular minutes of its meetings and report the same to the Board of
Directors upon request.
Section 10. Committee Rules. Each committee of the Board of Directors
may fix its own rules of procedure and shall hold its meetings as provided by
such rules, except as may otherwise be provided by a resolution of the Board
of Directors designating such committee. Unless otherwise provided in such a
resolution, the presence of at least a majority of the members of the commit-
tee shall be necessary to constitute a quorum.
Section 11. Communications Equipment. Members of the Board of
Directors or any committee thereof may participate in and act at any meeting
of such board or committee through the use of a conference telephone or other
communications equipment by means of which all persons participating in the
meeting can hear and speak with each other, and participation in the meeting
pursuant to this section shall constitute presence in person at the meeting.
Section 12. Waiver of Notice and Presumption of Assent. Any member of
the Board of Directors or any committee thereof who is present at a meeting
shall be conclusively presumed to have waived notice of such meeting except
when such member attends for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened. Such member shall be conclusively presumed to
have assented to any action taken unless his or her dissent shall be entered
in the minutes of the meeting or unless his or her written dissent to such
action shall be filed with the person acting as the secretary of the meeting
before the adjournment thereof or shall be forwarded by registered mail to the
secretary of the Corporation immediately after the adjournment of the meeting.
Such right to dissent shall not apply to any member who voted in favor of such
action.
Section 13. Action by Written Consent. Unless otherwise restricted by
the Certificate of Incorporation, any action required or permitted to be taken
at any meeting of the Board of Directors, or of any committee thereof, may be
taken without a meeting if all members of such board or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with
the minutes of proceedings of the board or committee.
ARTICLE IV
OFFICERS
Section 1. Number. The officers of the Corporation shall be elected by
the Board of Directors and shall consist of a chief executive officer, a
president, one or more vice-presidents, a secretary, a chief financial officer
and such other officers and assistant officers as may be deemed necessary or
desirable by the Board of Directors. Any number of offices may be held by the
same person, except that neither the chief executive officer nor the president
shall also hold the office of secretary. In its discretion, the Board of
Directors may choose not to fill any office for any period as it may deem
advisable, except that the offices of president and secretary shall be filled
as expeditiously as possible.
Section 2. Election and Term of Office. The officers of the
Corporation shall be elected annually by the Board of Directors at its first
meeting held after each annual meeting of stockholders or as soon thereafter
as convenient. Vacancies may be filled or new offices created and filled at
any meeting of the Board of Directors. Each officer shall hold office until a
successor is duly elected and qualified or until his or her earlier death,
resignation or removal as hereinafter provided.
Section 3. Removal. Any officer or agent elected by the Board of
Directors may be removed by the Board of Directors at its discretion, but such
removal shall be without prejudice to the contract rights, if any, of the
person so removed.
Section 4. Vacancies. Any vacancy occurring in any office because of
death, resignation, removal, disqualification or otherwise may be filled by
the Board of Directors.
Section 5. Compensation. Compensation of all executive officers shall
be approved by the Board of Directors, and no officer shall be prevented from
receiving such compensation by virtue of his or her also being a Director of
the Corporation; provided however, that compensation of all executive officers
may be determined by a committee established for that purpose if so authorized
by the unanimous vote of the Board of Directors..
Section 6. Chief Executive Officer. The chief executive officer (who
may also be the president) shall have the powers and perform the duties
incident to that position. Subject to the powers of the Board of Directors,
the chief executive officer shall be in the general and active charge of the
entire business and affairs of the Corporation, and shall be its chief policy
making officer. The chief executive officer shall have such other powers and
perform such other duties as may be prescribed by the Board of Directors or
provided in these By-laws. The chief executive officer is authorized to
execute bonds, mortgages and other contracts requiring a seal, under the seal
of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except where the signing and execution thereof shall
be expressly delegated by the Board of Directors to some other officer or
agent of the Corporation. Whenever the president is unable to serve, by
reason of sickness, absence or otherwise, the chief executive officer shall
perform all the duties and responsibilities and exercise all the powers of the
president.
Section 7. The President. The president of the Corporation (who may
also be the chief executive officer) shall, subject to the powers of the Board
of Directors and the chief executive officer, have general charge of the
business, affairs and property of the Corporation, and control over its
officers, agents and employees. The president shall see that all orders and
resolutions of the Board of Directors are carried into effect. The president
is authorized to execute bonds, mortgages and other contracts requiring a
seal, under the seal of the Corporation, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the Board of Directors to
some other officer or agent of the Corporation. The president shall have such
other powers and perform such other duties as may be prescribed by the Board
of Directors or the chief executive officer or as may be provided in these
By-laws.
Section 8. Vice-Presidents. The vice-president, or if there shall be
more than one, the vice-presidents in the order determined by the Board of
Directors, shall, in the absence or disability of the president, act with all
of the powers and be subject to all the restrictions of the president. The
vice-presidents shall also perform such other duties and have such other
powers as the Board of Directors, the chief executive officer, the president
or these By-laws may, from time to time, prescribe. The vice-presidents may
also be designated as executive vice-presidents or senior vice-presidents, as
the Board of Directors may from time to time prescribe.
Section 9. The Secretary and Assistant Secretaries. The secretary
shall attend all meetings of the Board of Directors, all meetings of the
committees thereof and all meetings of the stockholders and record all the
proceedings of the meetings in a book or books to be kept for that purpose or
shall ensure that his or her designee attends each such meeting to act in such
capacity. Under the president's supervision, the secretary shall give, or
cause to be given, all notices required to be given by these By-laws or by
law; shall have such powers and perform such duties as the Board of Directors,
the chief executive officer, the president or these By-laws may, from time to
time, prescribe; and shall have custody of the corporate seal of the
Corporation. The secretary, or an assistant secretary, shall have authority
to affix the corporate seal to any instrument requiring it and when so
affixed, it may be attested by his or her signature or by the signature of
such assistant secretary. The Board of Directors may give general authority
to any other officer to affix the seal of the Corporation and to attest the
affixing by his or her signature. The assistant secretary, or if there be
more than one, any of the assistant secretaries, shall in the absence or
disability of the secretary, perform the duties and exercise the powers of the
secretary and shall perform such other duties and have such other powers as
the Board of Directors, the chief executive officer, the president, or secre-
tary may, from time to time, prescribe.
Section 10. The Chief Financial Officer. The chief financial officer
shall have the custody of the corporate funds and securities; shall keep full
and accurate all books and accounts of the Corporation as shall be necessary
or desirable in accordance with applicable law or generally accepted
accounting principles; shall deposit all monies and other valuable effects in
the name and to the credit of the Corporation as may be ordered by the Board
of Directors; shall cause the funds of the Corporation to be disbursed when
such disbursements have been duly authorized, taking proper vouchers for such
disbursements; and shall render to the Board of Directors, at its regular
meeting or when the Board of Directors so requires, an account of the
Corporation; shall have such powers and perform such duties as the Board of
Directors, the chief executive officer, the president or these By-laws may,
from time to time, prescribe. If required by the Board of Directors, the
chief financial officer shall give the Corporation a bond (which shall be
rendered every six years) in such sum and with such surety or sureties as
shall be satisfactory to the Board of Directors for the faithful performance
of the duties of the office of chief financial officer and for the restoration
to the Corporation, in case of death, resignation, retirement or removal from
office of all books, papers, vouchers, money and other property of whatever
kind in the possession or under the control of the chief financial officer
belonging to the Corporation.
Section 11. Other Officers, Assistant Officers and Agents. Officers,
assistant officers and agents, if any, other than those whose duties are
provided for in these By-laws, shall have such authority and perform such
duties as may from time to time be prescribed by resolution of the Board of
Directors.
Section 12. Absence or Disability of Officers. In the case of the
absence or disability of any officer of the Corporation and of any person
hereby authorized to act in such officer's place during such officer's absence
or disability, the Board of Directors may by resolution delegate the powers
and duties of such officer to any other officer or to any Director, or to any
other person selected by it.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Form. Every holder of stock in the Corporation shall be
entitled to have a certificate, signed by, or in the name of the Corporation
by the the chief executive officer or the president and the secretary or an
assistant secretary of the Corporation, certifying the number of shares owned
by such holder in the Corporation. If such a certificate is countersigned (i)
by a transfer agent or an assistant transfer agent other than the Corporation
or its employee or (ii) by a registrar, other than the Corporation or its
employee, the signature of any such chief executive officer, president,
secretary or assistant secretary may be facsimiles. In case any officer or
officers who have signed, or whose facsimile signature or signatures have been
used on, any such certificate or certificates shall cease to be such officer
or officers of the Corporation whether because of death, resignation or
otherwise before such certificate or certificates have been delivered by the
Corporation, such certificate or certificates may nevertheless be issued and
delivered as though the person or persons who signed such certificate or
certificates or whose facsimile signature or signatures have been used thereon
had not ceased to be such officer or officers of the Corporation. All
certificates for shares shall be consecutively numbered or otherwise identi-
fied. The name of the person to whom the shares represented thereby are
issued, with the number of shares and date of issue, shall be entered on the
books of the Corporation. Shares of stock of the Corporation shall only be
transferred on the books of the Corporation by the holder of record thereof or
by such holder's attorney duly authorized in writing, upon surrender to the
Corporation of the certificate or certificates for such shares endorsed by the
appropriate person or persons, with such evidence of the authenticity of such
endorsement, transfer, authorization and other matters as the Corporation may
reasonably require, and accompanied by all necessary stock transfer stamps.
In that event, it shall be the duty of the Corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate or
certificates and record the transaction on its books. The Board of Directors
may appoint a bank or trust company organized under the laws of the United
States or any state thereof to act as its transfer agent or registrar, or both
in connection with the transfer of any class or series of securities of the
Corporation.
Section 2. Lost Certificates. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates previously issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate of stock to be lost, stolen or destroyed.
When authorizing such issue of a new certificate or certificates, the
Corporation may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his or her legal representative, to give the
Corporation a bond sufficient to indemnify the Corporation against any claim
that may be made against the Corporation on account of the loss, theft or
destruction of any such certificate or the issuance of such new certificate.
Section 3. Fixing a Record Date for Stockholder Meetings. In order
that the Corporation may determine the stockholders entitled to notice of or
to vote at any meeting of stockholders or any adjournment thereof, the Board
of Directors may fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted by the Board
of Directors, and which record date shall not be more than 60 nor less than 10
days before the date of such meeting. If no record date is fixed by the Board
of Directors, the record date for determining stockholders entitled to notice
of or to vote at a meeting of stockholders shall be the close of business on
the next day preceding the day on which notice is first given. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for
the adjourned meeting.
Section 4. Fixing a Record Date for Other Purposes. In order that the
Corporation may determine the stockholders entitled to receive payment of any
dividend or other distribution or allotment or any rights or the stockholders
entitled to exercise any rights in respect of any change, conversion or
exchange of stock, or for the purposes of any other lawful action, the Board
of Directors may fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted, and which
record date shall be not more than 60 days prior to such action. If no record
date is fixed, the record date for determining stockholders for any such
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
Section 5. Registered Stockholders. Prior to the surrender to the
Corporation of the certificate or certificates for a share or shares of stock
with a request to record the transfer of such share or shares, the Corporation
may treat the registered owner as the person entitled to receive dividends, to
vote, to receive notifications and otherwise to exercise all the rights and
powers of an owner. The Corporation shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person, whether or not it shall have express or other notice
thereof.
Section 6. Subscriptions for Stock. Unless otherwise provided for in
the subscription agreement, subscriptions for shares shall be paid in full at
such time, or in such installments and at such times, as shall be determined
by the Board of Directors. Any call made by the Board of Directors for
payment on subscriptions shall be uniform as to all shares of the same class
or as to all shares of the same series. In case of default in the payment of
any installment or call when such payment is due, the Corporation may proceed
to collect the amount due in the same manner as any debt due the Corporation.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, in accordance with applicable law. Dividends may be paid in cash, in
property or in shares of the capital stock, subject to the provisions of the
Certificate of Incorporation. Before payment of any dividend, there may be
set aside out of any funds of the Corporation available for dividends such sum
or sums as the Directors from time to time, in their absolute discretion,
think proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
any other purpose and the Directors may modify or abolish any such reserve in
the manner in which it was created.
Section 2. Checks, Drafts or Orders. All checks, drafts or other
orders for the payment of money by or to the Corporation and all notes and
other evidences of indebtedness issued in the name of the Corporation shall be
signed by such officer or officers, agent or agents of the Corporation, and in
such manner, as shall be determined by resolution of the Board of Directors or
a duly authorized committee thereof.
Section 3. Contracts. In addition to the powers otherwise granted to
officers pursuant to ARTICLE IV hereof, the Board of Directors may authorize
any officer or officers, or any agent or agents, of the Corporation to enter
into any contract or to execute and deliver any instrument in the name of and
on behalf of the Corporation, and such authority may be general or confined to
specific instances.
Section 4. Loans. The Corporation may lend money to, or guarantee any
obligation of, or otherwise assist any officer or other employee of the
Corporation or of its subsidiaries, including any officer or employee who is a
Director of the Corporation or its subsidiaries, whenever, in the judgment of
the Directors, such loan, guaranty or assistance may reasonably be expected to
benefit the Corporation. The loan, guaranty or other assistance may be with
or without interest, and may be unsecured, or secured in such manner as the
Board of Directors shall approve, including, without limitation, a pledge of
shares of stock of the Corporation. Nothing in this section shall be deemed
to deny, limit or restrict the powers of guaranty or warranty of the
Corporation at common law or under any statute.
Section 5. Fiscal Year. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
Section 6. Corporate Seal. The Board of Directors may provide a
corporate seal which shall be in the form of a circle and shall have inscribed
thereon the name of the Corporation and the words "Corporate Seal, Delaware."
The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
Section 7. Voting Securities Owned By Corporation. Voting securities
in any other corporation or in any partnership, limited liability company,
association, joint stock company, trust, or unincorporated organization held
by the Corporation shall be voted by the chief executive officer, the
president or a vice-president, unless the Board of Directors specifically
confers authority to vote with respect thereto, which authority may be general
or confined to specific instances, upon some other person or officer. Any
person authorized to vote securities shall have the power to appoint proxies,
with general power of substitution.
Section 8. Inspection of Books and Records. The Board of Directors
shall have power from time to time to determine to what extent and at what
times and places and under what conditions and regulations the accounts and
books of the Corporation, or any of them, shall be open to the inspection of
the stockholders; and no stockholder shall have any right to inspect any
account or book or document of the Corporation, except as conferred by the
laws of the State of Delaware, unless and until authorized so to do by
resolution of the Board of Directors or of the stockholders of the
Corporation.
Section 9. Section Headings. Section headings in these By-laws are for
convenience of reference only and shall not be given any substantive effect in
limiting or otherwise construing any provision herein.
Section 10. Inconsistent Provisions. In the event that any provision
of these By-laws is or becomes inconsistent with any provision of the
Certificate of Incorporation, the General Corporation Law of the State of
Delaware or any other applicable law, the provision of these By-laws shall not
be given any effect to the extent of such inconsistency but shall otherwise be
given full force and effect.
ARTICLE VII
AMENDMENTS
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors of the Corporation is expressly authorized to make,
alter, amend, change, add to or repeal these By-laws by the affirmative vote
of a majority of the total number of Directors then in office. Any alteration
or repeal of these By-laws by the stockholders of the Corporation shall
require the affirmative vote of a majority of the outstanding shares of the
Corporation entitled to vote on such alteration or repeal; provided, however,
that Section 11 of ARTICLE II and Sections 2, 3, 4 and 5 of ARTICLE III and
this ARTICLE VII of these By-laws shall not be altered, amended or repealed
and no provision inconsistent therewith shall be adopted without the
affirmative vote of the holders of at least 66_% of the outstanding shares of
the Corporation entitled to vote on such alteration, repeal or provision.
EXECUTION COPY
(Senior Subordinated)
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE (this "Supplemental Indenture")
dated as of March 30, 1998 between Huntway Partners L.P., a Delaware limited
partnership (the "Company"), and State Street Bank and Trust Company, as
trustee (the Trustee).
PRELIMINARY STATEMENT
The Company and the Trustee are parties to Indenture dated as of
October 15, 1997 (as amended and/or supplemented, the "Existing Indenture"),
whereby the Company issued $21,750,000 of its 9.25% Senior Subordinated Secured
Convertible Notes.
Pursuant to an Amendatory Agreement dated as of the date hereof
among the Company and numerous other parties, the Company and all of the
Holders under the Existing Indenture have agreed to the amendment to the
Existing Indenture hereinafter set forth, and have acknowledged and agreed
that the signatures of such Holders thereto constitute a consent of such
Holders pursuant to Section 9.02 of the Existing Indenture, to amend the
Existing Indenture as hereinafter set forth.
Pursuant to Section 9.06 of the Existing Indenture, the Trustee
has received an Opinion of Counsel and Officers' Certificate stating that the
execution of this Supplemental Indenture is authorized or permitted by the
Existing Indenture.
Accordingly, pursuant to Section 9.02 of the Existing Indenture,
the Company and the Trustee are entering into this Supplemental Indenture.
The Company and the Trustee hereby agree as follows:
1. Amendments to the Existing Indenture.
The Existing Indenture is amended by substituting the date May
15, 1998 for the date March 31, 1998 in Section 11.01 of the Existing
Indenture.
2. Effect on Existing Indenture. Except as expressly amended
by this Supplemental Indenture, the Existing Indenture shall remain in full
force and effect.
3. Counterparts. This Supplemental Indenture may be signed in
counterparts with the same effect as if the signatures to each counterpart
were upon a single instrument, and all such counterparts together shall be
deemed an original of this Supplemental Indenture.
4. Trustee Disclaimer. The Trustee has accepted the amendment
of the Existing Indenture effected by this Supplemental Indenture and agrees
to execute the trust created by the Existing Indenture as hereby amended, but
only upon the terms and conditions set forth in the Existing Indenture,
including the terms and provisions defining and limiting the liabilities and
responsibilities of the Trustee, and without limiting the generality of the
foregoing, the Trustee shall not be responsible in any manner whatsoever for
or with respect to any of the recitals of fact contained herein, all of which
recitals are made solely by the Company, or for or with respect to the
validity or sufficiency of this Supplemental Indenture or any of the terms or
provisions hereof and shall incur no liability or responsibility in respect of
the validity thereof.
* * * * *
IN WITNESS WHEREOF, we have set our hands as of the day and year
first above written.
HUNTWAY REFINING COMPANY,
a Delaware corporation
By: /s/Warren Nelson
Title: CFO
THE BANK OF NEW YORK, as Trustee
By: /s/ Susan Freedman
Title: Vice President
EXECUTION COPY
(Senior Subordinated)
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") dated
as of June 1, 1998 between Huntway Refining Company, successor by merger to
Huntway Partners, L.P. (the Company), and State Street Bank and Trust
Company, as trustee (the "Trustee").
PRELIMINARY STATEMENT
The Company and the Trustee are parties to the Indenture dated as
of October 15, 1997 (as amended and/or supplemented, the "Existing
Indenture"), whereby the Company issued $21,750,000 of its 9.25% Senior
Subordinated Secured Convertible Notes.
Pursuant to a Refinancing and Amendatory Agreement dated as of the
date hereof among the Company and numerous other parties, the Company and all
of the Holders under the Existing Indenture have agreed to the amendment to
the Existing Indenture hereinafter set forth, and have acknowledged and agreed
that the signatures of such Holders thereto constitute a consent of such
Holders pursuant to Section 9.02 of the Existing Indenture, to amend the
Existing Indenture as hereinafter set forth.
Pursuant to Section 9.06 of the Existing Indenture, the Trustee
has received an Opinion of Counsel and Officers' Certificate stating that the
execution of this Supplemental Indenture is authorized or permitted by the
Existing Indenture.
Accordingly, pursuant to Section 9.02 of the Existing Indenture,
the Company and the Trustee are entering into this Supplemental Indenture.
The Company and the Trustee hereby agree as follows:
1. Amendments to the Existing Indenture. The Existing Indenture
is amended by substituting the date June 1, 1998 for the date May 15, 1998
in Section 11.01 of the Existing Indenture.
2. Effect on Existing Indenture. Except as expressly amended
by this Supplemental Indenture, the Existing Indenture shall remain in full
force and effect.
3. Counterparts. This Supplemental Indenture may be signed in
counterparts with the same effect as if the signatures to each counterpart
were upon a single instrument, and all such counterparts together shall be
deemed an original of this Supplemental Indenture.
4. Trustee Disclaimer. The Trustee has accepted the amendments
of the Existing Indenture effected by this Supplemental Indenture and agrees
to execute the trust created by the Existing Indenture as hereby amended, but
only upon the terms and conditions set forth in the Existing Indenture,
including the terms and provisions defining and limiting the liabilities and
responsibilities of the Trustee, and without limiting the generality of the
foregoing, the Trustee shall not be responsible in any manner whatsoever for
or with respect to any of the recitals of fact contained herein, all of which
recitals are made solely by the Company, or for or with respect to the
validity or sufficiency of this Supplemental Indenture or any of the terms or
provisions hereof and shall incur no liability or responsibility in respect of
the validity thereof.
* * * * *
IN WITNESS WHEREOF, we have set our hands as of the day and year
first above written.
Dated as of June , 1998
HUNTWAY PARTNERS L.P.,
a Delaware limited partnership, as
Issuer
By: ________________________
By: ________________________
Dated as of June , 1998
STATE STREET BANK AND TRUST COMPANY,
a Massachusetts bank and trust company,
as Trustee
By:__________________________________
__
Name:
Title:
EXECUTION COPY
(Senior Subordinated)
FOURTH SUPPLEMENTAL INDENTURE
FOURTH SUPPLEMENTAL INDENTURE (this "Supplemental Indenture")
dated as of April 7, 2000 between Huntway Refining Company, a Delaware
corporation (the "Company"), and State Street Bank and Trust Company, as
trustee (the "Trustee").
PRELIMINARY STATEMENT
The Company and the Trustee are parties to the Indenture dated as
of October 15, 1997 (as amended and supplemented, the "Existing Indenture"),
whereby the Company issued $21,750,000 of its 9.25% Senior Subordinated Secured
Convertible Notes. Capitalized terms used in this Supplemental Indenture but
not otherwise defined herein shall have the meanings given such terms in the
Existing Indenture.
Pursuant to a Second Refinancing and Amendatory Agreement dated as
of October 29, 1999 among the Company and numerous other parties, including
the Trustee, the Company and all of the Securityholders (as defined in the
Existing Indenture) under the Existing Indenture have agreed to the amendments
to the Existing Indenture hereinafter set forth, and have acknowledged and
agreed that the signatures of such Securityholders thereto constitute a
consent of such Securityholders pursuant to Section 9.02 of the Existing
Indenture to amend the Existing Indenture as hereinafter set forth.
Pursuant to Section 9.06 of the Existing Indenture, the Trustee
has received an Opinion of Counsel and Officers' Certificate stating that the
execution of this Supplemental Indenture is authorized or permitted by the
Existing Indenture.
Accordingly, pursuant to Section 9.02 of the Existing Indenture,
the Company and the Trustee are entering into this Supplemental Indenture.
The Company and the Trustee hereby agree as follows:
1. Amendments to the Existing Indenture. The Existing
Indenture is amended as follows. The following definitions contained in the
Existing Indenture are amended and restated as follows:
Boeing Capital Notes means any note or notes issued by the
Issuer pursuant to the Boeing Capital Loan Agreement and any note
or notes issued in replacement or substitution therefor.
B of A means Bank of America, N.A.
Intercreditor Agreement means the Second Amended and Restated
Intercreditor and Collateral Trust Agreement dated as of October
29, 1999 among B of A, Boeing Capital, the Convertible Note
Holders listed on the signature pages thereof, State Street Bank
and Trust Company, as Trustee under the Indenture, and the United
States Trust Company of New York, as Collateral Agent, as such
Agreement may from time to time be amended, renewed, supplemented,
restated or otherwise modified.
Letter of Credit Agreement means the Business Loan Agreement
(Receivables and Inventory) dated as of October 29, 1999, between
B of A and the Issuer, as such Agreement may from time to time be
amended, renewed, supplemented, restated or otherwise modified,
and any Replacement Letter of Credit Agreement (as such term is
defined in the Intercreditor Agreement).
Letter of Credit Agreement Obligations means the Issuers
obligations arising under the Letter of Credit Agreement.
2. Effect on Existing Indenture. Except as expressly amended
by this Supplemental Indenture, the Existing Indenture shall remain in full
force and effect.
3. Counterparts. This Supplemental Indenture may be signed in
counterparts with the same effect as if the signatures to each counterpart
were upon a single instrument, and all such counterparts together shall be
deemed an original of this Supplemental Indenture.
4. Trustee Disclaimer. The Trustee has accepted the amendments
of the Existing Indenture effected by this Supplemental Indenture and agrees
to execute the trust created by the Existing Indenture as hereby amended, but
only upon the terms and conditions set forth in the Existing Indenture,
including the terms and provisions defining and limiting the liabilities and
responsibilities of the Trustee, and without limiting the generality of the
foregoing, the Trustee shall not be responsible in any manner whatsoever for
or with respect to any of the recitals of fact contained herein, all of which
recitals are made solely by the Company, or for or with respect to the
validity or sufficiency of this Supplemental Indenture or any of the terms or
provisions hereof and shall incur no liability or responsibility in respect of
the validity thereof.
IN WITNESS WHEREOF, we have set our hands as of the day and year
first above written.
HUNTWAY REFINING COMPANY,
a Delaware corporation, as Issuer
By: /s/ Earl Fleisher
STATE STREET BANK AND TRUST COMPANY, a
Massachusetts bank and trust company, as
Trustee
By: /s/ Robert J. Dunn
Title: Vice President
EXECUTION COPY
(Junior)
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE (this "Supplemental Indenture")
dated as of April 7, 1999 between Huntway Refining Company, a Delaware
corporation (the "Company"), and IBJ Whitehall Bank & Trust Company (f/k/a IBJ
Schroder Bank & Trust Company), as trustee (the "Trustee").
PRELIMINARY STATEMENT
The Company and the Trustee are parties to an Amended and Restated
Junior Subordinated Debenture Indenture dated as of December 12, 1996 (as
supplemented, the "Existing Indenture").
Pursuant to a Refinancing and Amendatory Agreement dated as of
January 20, 1999 among the Company and numerous other parties, and pursuant to
an Amendment dated as of February 1, 1999 among the Company and all of the
Holders under the Existing Indenture, the Company and all of the Holders under
the Existing Indenture have agreed to the amendments to the Existing Indenture
hereinafter set forth, and have acknowledged and agreed that the signatures of
such Holders thereto constitute a consent, by Act of such Holders pursuant to
Section 104 of the Existing Indenture, to amend the Existing Indenture as
hereinafter set forth.
Pursuant to Section 803 of the Existing Indenture, the Trustee has
received an Opinion of Counsel and Officers' Certificate stating that the
execution of this Supplemental Indenture is authorized or permitted by the
Existing Indenture.
Accordingly, pursuant to Section 802 of the Existing Indenture,
the Company and the Trustee are entering into this Supplemental Indenture.
The Company and the Trustee hereby agree as follows:
1. Amendments to the Existing Indenture.
The Existing Indenture is amended as follows:
(a) Definitions.
(i) The following definitions contained in the Existing
Indenture are amended as follows:
The definition of Authorized Officer is amended by inserting
after the word secretary, the word controller,.
The definition of Cash Equivalents is amended by deleting the
words issued by Bankers Trust Company.
The definition of Collateralized Note Indenture is deleted in
its entirety.
The definition of Consolidated Interest Expense is amended by
deleting the words issued by Bankers Trust Company.
The definition of Consolidated Net Income is amended by
deleting the words issued by Bankers Trust Company.
The definition of Permitted Encumbrances is amended by (A)
deleting the words not in excess of $50,000 in aggregate
outstanding amount from clause (ix), (B) deleting the word and
following clause (ix), (C) re-lettering existing clause (x) as
clause (xi), and (D) inserting the following new clause (x): (x)
Liens arising under paragraph 4 of the Refinancing and Amendatory
Agreement and in favor of B of A as the institution at which the
account referred to in such paragraph is maintained; and.
The definition of Replacement Letter of Credit Agreement is
amended by substituting for the words Collateralized Note
Indenture the words Intercreditor Agreement.
The definition of Reprise is deleted in its entirety.
The definition of Senior Indebtedness is amended by
substituting for clause (ii) the words (ii) the principal of the
Boeing Capital Notes and the Convertible Notes, interest accrued
or accruing thereon both before and after the date of filing a
petition in bankruptcy, insolvency, arrangement, reorganization or
receivership proceedings, whether or not allowed as a claim in
such case or proceeding (in accordance with and at the contract
rate) and any and all other amounts due under the Boeing Capital
Notes, the Boeing Capital Loan Agreement, the Convertible Notes
and the Senior Subordinated Indenture, whether direct or indirect,
absolute or contingent, secured or unsecured, due or to become
due, now existing or hereafter arising (including, without
limitation, amounts for which the holders of the Boeing Capital
Notes or the trustee under the Senior Subordinated Indenture are
entitled to reimbursement under the terms of the Boeing Capital
Loan Agreement or such Indenture);.
The definitions of Senior Securities, Senior Notes, Senior
Notes (Other), and Senior Notes (Sunbelt IDB) are deleted in
their entirety.
The definition of Specified Senior Debt is amended by
substituting for the words Collateralized Note Indenture the
words Boeing Capital Loan Agreement.
(ii) The following definitions contained in Section 101 of the
Existing Indenture are restated to read as follows:
"Letter of Credit Facility means the Amended and Restated
Letter of Credit and Reimbursement Agreement dated as of January
20, 1999, by and among the Company, Sunbelt and Bankers Trust
Company, as such Agreement may from time to time be amended,
renewed, supplemented, restated or otherwise modified, and any
successor, substitute or replacement letter of credit facility
including, without limitation, any Replacement Letter of Credit
Agreement.
LOC Bank means the issuer of the letters of credit issued
under the Letter of Credit Facility.
Representative means with respect to the Letter of Credit
Facility, the issuer of the letters of credit thereunder, and with
respect to any Senior Indebtedness arising under the Boeing
Capital Loan Agreement and the Senior Subordinated Indenture,
Boeing Capital and the trustee named in such Indenture,
respectively.
(iii) The following definitions are added to Section 101 of the
Existing Indenture:
Benicia Escrow Agreement means the Master Agreement Business
Deposit Accounts dated January 19, 1999 by and between the Company
and B of A, as such Agreement may be amended, amended and
restated, supplemented or modified from time to time.
Boeing Capital means Boeing Capital Corporation, in its
capacity as a holder of the Boeing Capital Obligations.
Boeing Capital Loan Agreement means that certain Loan
Agreement dated as of January 20, 1999 by and between the Company
and Boeing Capital, as such agreement may be amended, amended and
restated, supplemented or modified from time to time.
Boeing Capital Loan Obligations means the principal,
interest, fee and other obligations owed to Boeing Capital arising
under the Boeing Capital Loan Agreement.
Boeing Capital Notes means the Secured Promissory Note dated
January 20, 1999 issued by the Company pursuant to the Boeing
Capital Loan Agreement and any note or notes issued in replacement
or substitution therefor.
B of A means Bank of America.
Cash Flow Coverage means (a) Consolidated EBITDA, divided by
(b) the sum of cash interest expense and principal payments on
indebtedness (excluding (i) any principal payments or indebtedness
made pursuant to the Refinancing and Amendatory Agreement and (ii)
any prepayment pursuant to the Companys one-time right in Section
2.2 of the Boeing Capital Loan Agreement).
Refinancing and Amendatory Agreement means the Refinancing
and Amendatory Agreement dated as of January 20,1999 among the
Company, Sunbelt, the then holders of the Securities and others.
Sunbelt Merger means a merger of Sunbelt into the Company.
(b) Payment of Interest. Sections 307(a) - (c) and (f) of the
Existing Indenture are amended by (i) substituting for the words (including
Secondary Securities, as defined in the Collateralized Note Indenture, issued
with respect thereto) on the Senior Securities and the words (including
Secondary Securities as defined in the Collateralized Note Indenture, issued
with respect thereto) on the Senior Securitieseach time they appear in
subsection 307(a) the words on the Boeing Capital Notes; (ii) substituting
for the words Senior Notes the words Boeing Capital Notes in the second
sentence of subsection 307(a) and (iii) deleting the words (including
Secondary Securities, as defined in the Collateralized Note Indenture) and
the words (including Secondary Securities as defined in the Collateralized
Note Indenture) each time they appear in subsections 307(b), (c) and (f).
(c) Payment of Taxes and Other Claims. Section 405 of the
Existing Indenture is amended by deleting the words or Reprise.
(d) Limitation on Indebtedness. Section 406 of the Existing
Indenture is amended by (i) substituting for the words (including Secondary
Securities, as defined in the Collateralized Note Indenture issued with
respect thereto) on the Senior Securities the words on the Boeing Capital
Notes; (ii) deleting the words so long as it continues to own the property
described in Exhibit A to the Collateralized Note Indenture as the Pinal
Property in subsection (b) of such Section; (iii) deleting the words , in an
aggregate amount not to exceed $100,000 from subsection (d) of such Section;
(iv) inserting the words and obligations under hedging agreements related to
the price of crude oil at the end of subsection (e) of such Section; and (v)
substituting for subsection (i) of such Section the following: (i) the
Company may become and remain liable with respect to Indebtedness under the
Boeing Capital Loan Agreement;.
(e) Limitation on Restricted Junior Payments. Section 407 of
the Existing Indenture is amended by substituting for the words (including
Secondary Securities, as defined in the Collateralized Note Indenture issued
with respect thereto) on the Senior Securities the words on the Boeing
Capital Notes.
(f) Limitation on Restrictions Affecting Subsidiaries. Section
408 of the Existing Indenture is amended by substituting for the words
(including Secondary Securities, as defined in the Collateralized Note
Indenture issued with respect thereto) on the Senior Securities the words on
the Boeing Capital Notes.
(g) Limitation on Liens. Section 410 of the Existing Indenture
is amended by (i) substituting for the words (including Secondary Securities,
as defined in the Collateralized Note Indenture, issued with respect thereto)
on the Senior Securities the words on the Boeing Capital Notes; (ii)
restating paragraph (b) in its entirety to read (b) Liens securing
obligations under the Boeing Capital Loan Agreement; and (iii) substituting
for the words Collateralized Note Indenture in the last line of such Section
the words Boeing Capital Loan Agreement and the Senior Subordinated
Indenture.
(h) Transactions with Partners and Affiliates. Section 414 of
the Existing Indenture is amended by (i) substituting for the words
(including Secondary Securities, as defined in the Collateralized Note
Indenture issued with respect thereto) on the Senior Securities the words on
the Boeing Capital Notes; and (ii) inserting the words ; or (iii) the
Sunbelt Merger, or (iv) any grant of an option by the Company to a director or
employee (or exercise thereof) at the end of such Section.
(i) Financial Covenants. Section 415 of the Existing Indenture
is restated to read as follows: After the Company has paid in full the
principal of and all accrued interest on the Boeing Capital Notes, the Company
will maintain a Cash Flow Coverage ratio of at least 1.5:1.0 calculated on the
basis of the most recently ended four fiscal quarters
(j) Limitation on Investments, Loans and Advances. Section 417
of the Existing Indenture is amended by (i) substituting for the words
(including Secondary Securities, as defined in the Collateralized Note
Indenture issued with respect thereto) on the Senior Securities the words on
the Boeing Capital Notes; (ii) deleting the words which shall not exceed
$5,000 to any single employee and $25,000 in the aggregate to all employees at
any time outstanding ; and (iii) inserting at the end of clause (b) the words
and loans by the Company to Sunbelt.
(k) Limitation on Consolidated Capital Expenditures. Section
418 of the Existing Indenture is amended by (i) substituting for the amount
$3,000,000 the amount $4,000,000 and (ii) inserting the following at the
end of such Section: (or, in the case of 1999, if this covenant becomes
applicable during 1999, $8,500,000).
(l) Fundamental Changes Only on Certain Terms. Section 419 of
the Existing Indenture is amended by (i) substituting for the words
(including Secondary Securities, as defined in the Collateralized Note
Indenture issued with respect thereto) on the Senior Securities the words on
the Boeing Capital Notes; (ii) deleting the word and from subsection (d)
of such Section; (iii) inserting the word ; and at the end of subsection (e)
of such Section; and (iv) adding the following new clause (f):
(f) the Company and Sunbelt may effect the Sunbelt Merger.
(m) Contingent Obligations. Section 420 of the Existing
Indenture is amended by (i) substituting for the words (including Secondary
Securities, as defined in the Collateralized Note Indenture issued with
respect thereto) on the Senior Securities the words on the Boeing Capital
Notes; (ii) inserting the words and obligations under hedging agreements
related to the price of crude oil at the end of subsection (d) of such
Section; and (iii) deleting the words in an amount not to exceed $1,500,000
in subsection (e) of such Section.
(n) Grant of Lien to Secure Obligations. Section 422(a) of the
Existing Indenture is amended by (i) substituting for the words (including
Secondary Securities as defined in the Collateralized Note Indenture issued
with respect thereto) on the Senior Securities the words on the Boeing
Capital Notes; and (ii) substituting for the words Collateralized Note
Indenture the words Intercreditor Agreement.
(o) Events of Default. Section 501 of the Existing Indenture is
amended by restating subsection 501(l) to read as follows:
(l) the Company shall cease to be the Sunbelt Managing
General Partner, other than as a result of the Sunbelt Merger.
(p) Acceleration of Maturity. Section 502 of the Existing
Indenture is amended by substituting for the words to the trustee under the
Collateralized Note Indenture (at Fleet National Bank, One Federal Street,
Boston, Massachusetts 02211, Attention: Corporate Trust Administration), the
words to Boeing Capital (at 4060 Lakewood Boulevard, Long Beach, California
90808-1700, Attention: Vice President - Taxes and Associate General Counsel).
(q) Right of Redemption. Section 901 of the Existing Indenture
is amended by substituting for the words (including Secondary Securities, as
defined in the Collateralized Note Indenture, issued with respect thereto) on
the Senior Securities the words on the Boeing Capital Notes.
(r) Approval of Senior Indebtedness. Section 1006 of the
Existing Indenture is amended by substituting for the words the Senior
Securities, and the Collateralized Note Indenture in clause (i) the words
the Boeing Capital Notes, the Boeing Capital Loan Agreement.
2. Effect on Existing Indenture. Except as expressly amended
by this Supplemental Indenture, the Existing Indenture is in all respects
ratified and confirmed and all of its terms shall remain in full force and
effect.
3. Counterparts. This Supplemental Indenture may be signed in
counterparts with the same effect as if the signatures to each counterpart
were upon a single instrument, and all such counterparts together shall be
deemed an original of this Supplemental Indenture.
IN WITNESS WHEREOF, we have set our hands as of the day and year
first above written.
HUNTWAY REFINING COMPANY,
a Delaware corporation
By:__________________________________
Name:
Title:
IBJ WHITEHALL BANK & TRUST COMPANY
(f/k/a IBJ Shroder Bank & Trust
Company), as Trustee
By:__________________________________
__
EXECUTION COPY
(Junior)
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") dated
as of April 10, 2000 between Huntway Refining Company, a Delaware corporation
(the "Company"), and The Bank of New York, as trustee (succeeding IBJ
Whitehall Bank & Trust Company (f/k/a IBJ Schroder Bank & Trust Company)),
(the "Trustee").
PRELIMINARY STATEMENT
The Company and the Trustee are parties to an Amended and Restated
Junior Subordinated Debenture Indenture dated as of December 12, 1996 (as
supplemented, the "Existing Indenture"). Capitalized terms used in this
Supplemental Indenture but not otherwise defined herein shall have the
meanings given such terms in the Existing Indenture.
Pursuant to a Second Refinancing and Amendatory Agreement dated as
of October 29, 1999 among the Company and numerous other parties, the Company
and all of the Holders under the Existing Indenture have agreed to the
amendments to the Existing Indenture hereinafter set forth, and have
acknowledged and agreed that the signatures of such Holders thereto constitute
a consent, by Act of such Holders pursuant to Section 104 of the Existing
Indenture, to amend the Existing Indenture as hereinafter set forth.
Pursuant to Section 803 of the Existing Indenture, the Trustee has
received an Opinion of Counsel and Officers' Certificate stating that the
execution of this Supplemental Indenture is authorized or permitted by the
Existing Indenture.
Accordingly, pursuant to Section 802 of the Existing Indenture,
the Company and the Trustee are entering into this Supplemental Indenture.
The Company and the Trustee hereby agree as follows:
1. Amendments to the Existing Indenture.
The Existing Indenture is amended as follows:
(a) Certain Definitions.
(i) The following definitions contained in the Existing
Indenture are amended as follows:
The definition of Consolidated Current Liabilities is
amended by (A) substituting for the words Senior
Securities the words Boeing Capital Notes and (B)
inserting the following words immediately prior to the
period of the end of such definition: and the current
portion of the Indebtedness pursuant to the Letter of Credit
Facility.
The definition of Senior Indebtedness is amended by
substituting for clause (i) the words (i) all unreimbursed
drawings with respect to letters of credit issued or amended
(or deemed issued or amended) under the Letter of Credit
Facility, the principal of any advance made pursuant to the
Letter of Credit Facility (whether or not evidenced by any
note), interest accrued or accruing on any of the foregoing
both before and after the date of filing a petition in
bankruptcy, insolvency, arrangement, reorganization or
receivership proceedings, whether or not allowed as a claim
in such case or proceeding (in accordance with and at the
contract rate), any commitment, commission, facility and
other fees payable under the Letter of Credit Facility and
any other amounts due under the Letter of Credit Facility,
whether direct or indirect, absolute or contingent, secured
or unsecured, due or to become due, now existing or
hereafter arising (including, without limitation, amounts
for which the issuer of letters of credit pursuant to, or
any holder of any note issued pursuant to, the Letter of
Credit Facility is entitled to reimbursement pursuant to the
Letter of Credit Facility in respect of letters of credit or
otherwise);.
(ii) The following definitions contained in Section
101 of the Existing Indenture are restated to read as
follows:
Boeing Capital Notes means any note or notes issued by
the Company pursuant to the Boeing Capital Loan Agreement
and any note or notes issued in replacement or substitution
therefor.
B of A means Bank of America, N.A.
Intercreditor Agreement means the Second Amended and
Restated Intercreditor and Collateral Trust Agreement dated
as of October 29, 1999 among B of A, Boeing Capital, the
Convertible Note Holders listed on the signature pages
thereof, State Street Bank and Trust Company, as Trustee
under the Senior Subordinated Indenture, and the United
States Trust Company of New York, as Collateral Agent, as
such Agreement may from time to time be amended, renewed,
supplemented, restated or otherwise modified.
Letter of Credit Facility means the Business Loan
Agreement (Receivables and Inventory) dated as of October
29, 1999, between B of A and the Company, as such Agreement
may from time to time be amended, renewed, supplemented,
restated or otherwise modified, and any successor,
substitute or replacement letter of credit facility
including, without limitation, and Replacement Letter of
Credit Agreement.
LOC Bank means the provider of credit under the Letter
of Credit Facility.
Representative means with respect to the Letter of
Credit Facility, the LOC Bank, and with respect to any
Senior Indebtedness arising under the Boeing Capital Loan
Agreement and the Senior Subordinated Indenture, Boeing
Capital and the trustee named in such Indenture,
respectively.
(b) Payment of Interest. Sections 307(a) - (c) and (f) of
the Existing Indenture are amended by substituting for the words on the
Boeing Capital Notes each time they appear the words on the Boeing
Capital Notes and its obligations pursuant to the Letter of Credit
Facility.
(c) Limitation on Indebtedness. Section 406 of the
Existing Indenture is amended by substituting for the words on the
Boeing Capital Notes the words on the Boeing Capital Notes and its
obligations pursuant to the Letter of Credit Facility.
(d) Limitation on Restricted Junior Payments. Section 407
of the Existing Indenture is amended by substituting for the words on
the Boeing Capital Notes the words on the Boeing Capital Notes and its
obligations pursuant to the Letter of Credit Facility.
(e) Limitation on Restrictions Affecting Subsidiaries.
Section 408 of the Existing Indenture is amended by substituting for the
words on the Boeing Capital Notes the words on the Boeing Capital
Notes and its obligations pursuant to the Letter of Credit Facility.
(f) Limitation on Liens. Section 410 of the Existing
Indenture is amended by (i) substituting for the words on the Boeing
Capital Notes the words on the Boeing Capital Notes and its
obligations pursuant to the Letter of Credit Facility and (ii)
substituting for the words Boeing Capital Loan Agreement and the Senior
Subordinated Indenture the words Boeing Capital Loan Agreement, the
Senior Subordinated Indenture and the Letter of Credit Facility.
(g) Transactions with Partners and Affiliates. Section
414 of the Existing Indenture is amended by substituting for the words
on the Boeing Capital Notes the words on the Boeing Capital Notes and
its obligations pursuant to the Letter of Credit Facility.
(h) Financial Covenants. Section 415 of the Existing
Indenture is amended by substituting for the words on the Boeing
Capital Notes the words on the Boeing Capital Notes and its
obligations pursuant to the Letter of Credit Facility.
(i) Limitation on Investments, Loans and Advances.
Section 417 of the Existing Indenture is amended by substituting for the
words on the Boeing Capital Notes the words on the Boeing Capital
Notes and its obligations pursuant to the Letter of Credit Facility.
(j) Limitation on Consolidated Capital Expenditures.
Section 418 of the Existing Indenture is amended by substituting for the
first sentence thereof the following: After the Company has paid in
full the principal of and all accrued interest on the Boeing Capital
Notes and the Convertible Notes and its obligations pursuant to the
Letter of Credit Facility, the Company will not and will note permit any
of its Subsidiaries to make, in the aggregate, Consolidated Capital
Expenditures in an amount in excess of $4,000,000 during any calendar
year (or, in the case of 1999, if this covenant becomes applicable
during 1999, $8,500,000; or, in the case of 2000, if this covenant
becomes applicable prior to or during 2000, $4,000,000 plus any excess
of $8,500,000 over the amount of Consolidated Capital Expenditures
during 1999).
(k) Fundamental Changes Only on Certain Terms. Section
419 of the Existing Indenture is amended by substituting for the words
on the Boeing Capital Notes the words on the Boeing Capital Notes and
its obligations pursuant to the Letter of Credit Facility.
(l) Contingent Obligations. Section 420 of the Existing
Indenture is amended by substituting for the words on the Boeing
Capital Notes the words on the Boeing Capital Notes and its
obligations pursuant to the Letter of Credit Facility.
(m) Grant of Lien to Secure Obligations. Section 422(a)
of the Existing Indenture is amended by substituting for the words on
the Boeing Capital Notes the words on the Boeing Capital Notes and its
obligations pursuant to the Letter of Credit Facility.
(n) Right of Redemption. Section 901 of the Existing
Indenture is amended by substituting for the words on the Boeing
Capital Notes the words on the Boeing Capital Notes and its
obligations pursuant to the Letter of Credit Facility.
2. Effect on Existing Indenture. Except as expressly
amended by this Supplemental Indenture, the Existing Indenture is in all
respects ratified and confirmed and all of its terms shall remain in
full force and effect.
3. Counterparts. This Supplemental Indenture may be
signed in counterparts with the same effect as if the signatures to each
counterpart were upon a single instrument, and all such counterparts
together shall be deemed an original of this Supplemental Indenture.
4. Governing Law. This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of
New York.
5. Severability. In case any one or more of the
provisions in this Supplemental Indenture shall be held invalid, illegal
or unenforceable, in any respect for any reason, the validity, legality
and enforceability of any such provision in every other respect and of
the remaining provisions shall not in any way be affected or impaired
thereby, it being intended that all of the provisions hereof shall be
enforceable to the full extent permitted by law.
6. Trustee Disclaimer. The Trustee shall not be
responsible in any manner whatsoever for or with respect to any of the
recitals or statements contained herein, all of which recitals or
statements are made solely by the Company, or for or with respect to the
validity or sufficiency of this Supplemental Indenture or any of the
terms or provisions hereof.
* * * * *
IN WITNESS WHEREOF, we have set our hands as of the day and year
first above written.
AMENDMENT NUMBER TWO TO
LOAN AGREEMENT
THIS AMENDMENT NUMBER TWO TO LOAN AGREEMENT, dated as of April 12,
2000 (this "Amendment"), amends that certain Loan Agreement dated as of
January 20, 1999, between BOEING CAPITAL CORPORATION, a Delaware
corporation (Lender), and HUNTWAY REFINING COMPANY, a Delaware
corporation (Borrower), as amended by that certain Amendment Number
One to Loan Agreement dated as of January 31, 1999 (the Loan
Agreement). All initially capitalized terms used in this Amendment
shall have the meanings ascribed thereto in the Loan Agreement unless
specifically defined herein.
R E C I T A L S
WHEREAS, Borrower and Lender desire to amend the Loan Agreement as
hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
A M E N D M E N T
Section 1. Amendment of Definition of Authorized Person.
Section 1.1 of the Loan Agreement is hereby amended by deleting the
definition of Authorized Person therein in its entirety and replacing
such definition with the following:
Authorized Person means the officer of the
Borrower bearing the title President & Chief Executive
Officer, the officer of the Borrower bearing the title Chief
Financial Officer, or the officer of the Borrower bearing
the title Controller.
Section 2. Adding Definition of Closing Date B. Section 1.1
of the Loan Agreement is hereby amended by adding a definition of
Closing Date B as follows:
Closing Date B means the date of funding the
Term Loan B.
Section 3. Adding Definition of Early Paydown Premium B.
Section 1.1 of the Loan Agreement is hereby amended by adding a
definition of Early Paydown Premium B as follows:
A Early Paydown Premium B has the meaning set
forth in Section 3.8.
Section 4. Amendment of Definition of Interest Rate. Section
1.1 of the Loan Agreement is hereby amended by deleting the definition
of Interest Rate set forth therein and replacing such definition with
the following:
A Interest Rate means: (a) with respect to the
Term Loan and each Capital Expenditure Loan, the fixed rate
of interest, per annum, calculated as of the Monday
preceding the date of the funding thereof, calculated as
follows: 9.39% plus (or minus) the sum of: (i) 87% of any
increase (or decrease) in the average yield on U.S.
Treasuries maturing in 60 months (or if such 60-month yield
is not quoted, such yield as calculated by interpolation
from the yields quoted for the closest longer and shorter
maturities) as quoted in the Treasury Bonds, Notes & Bills
section of The Wall Street Journal (or any similar
publication in the event the foregoing is not available)
published on such Monday (or if not published on such
Monday, as published on the first preceding Business Day)
from 5.42%; and (ii) 87% of any increase (or decrease) in
the five year spread for ABBB finance companies as stated
in the Lehman Brothers Fixed Income Global Relative Value
Report most recently published as of such Monday (or any
similar publication in the event the foregoing is not
available) from 76 basis points (by way of example, as of
November 9, 1998, such Treasuries yield was 4.5% and the
five year spread from the Lehman Report was 145 basis
points. Therefore, the Interest Rate calculated as of such
date would be 9.19%.); and (b) with respect to the Term Loan
B, the fixed rate of interest, per annum, calculated as of
the first or fifteenth of the month of the funding thereof,
whichever most recently precedes the date of the funding
thereof, calculated as follows: 10.2% plus (or minus) 85.9%
of any increase (or decrease) in the average yield on U.S.
Treasuries maturing in 24 months (or if such 24-month yield
is not quoted, such yield as calculated by interpolation
from the yields quoted for the closest longer and shorter
maturities) as quoted in the Treasury Bonds, Notes & Bills
section of The Wall Street Journal (or any similar
publication in the event the foregoing is not available)
published on such date (or if not published on such date, as
published on the first preceding Business Day) from 5.92%.
Section 5. Amendment of Definition of Note. Section 1.1 of
the Loan Agreement is hereby amended by deleting the definition of Note
set forth therein and replacing such definition with the following:
A Note means, collectively,: (i) that certain
Secured Promissory Note, dated of even date herewith,
executed by Borrower, as maker, in favor of Lender, as
payee, to further evidence the Term Loan and the Capital
Expenditure Loans; and (ii) that certain Secured Promissory
Note - Term Loan B dated of even date with the Closing
Date B executed by Borrower, as maker, in favor of Lender,
as payee, to further evidence the Term Loan B.
Section 6. Amendment of Definition of Obligations. Section
1.1 of the Loan Agreement is hereby amended by deleting the definition
of Obligations set forth therein and replacing such definition with the
following:
A Obligations means the Term Loan, the Term Loan
B, all Capital Expenditure Loans, the Early Paydown Premium
arising under Section 3.5 or Section 3.6, the Early Paydown
Premium B arising under Section 3.8, and all other loans,
debts, principal, interest (including any interest that, but
for the provisions of the Bankruptcy Code, would have
accrued), liabilities, obligations, fees, charges, costs, or
Lender Expenses (including any fees or expenses that, but
for the provisions of the Bankruptcy Code, would have
accrued), guaranties, covenants, and duties owing by
Borrower to Lender of any kind and description arising
pursuant to, or evidenced by, or in connection with the Loan
Documents and irrespective of whether for the payment of
money, whether direct or indirect, absolute or contingent,
due or to become due, now existing or hereafter arising, and
further including all interest owing to Lender pursuant to
this Agreement not paid when due and all Lender Expenses and
Losses that Borrower is required to pay or reimburse to
Lender under the Loan Documents, by law, or otherwise.
Section 7. Adding Definition of Payment Date B. Section 1.1
of the Loan Agreement is hereby amended by adding a definition of
Payment Date B as follows:
Payment Date B has the meaning set forth in
Section 2.7.
Section 8. Amendment of Definition of Refinancing and
Amendatory Agreement. Section 1.1 of the Loan Agreement is hereby
amended by deleting the definition of Refinancing and Amendatory
Agreement set forth therein and replacing such definition with the
following:
A Refinancing and Amendatory Agreement means,
collectively: (i) that certain Refinancing and Amendatory
Agreement, dated the date hereof, among Borrower, Lender,
Collateral Agent and certain other parties; and (ii) that
certain Second Refinancing and Amendatory Agreement, dated
as of October 29, 1999, among Borrower, Lender, Collateral
Agent, and certain other parties.
Section 9. Adding Definition of Term Loan B. Section 1.1 of
the Loan Agreement is hereby amended by adding a definition of Term Loan
B as follows:
A Term Loan B has the meaning set forth in
Section 2.7.
Section 10. Amendment of Section 2.3(c) and (d). Sections
2.3(c) and (d) of the Loan Agreement are hereby amended by deleting the
subsections in their entirety and replacing such subsections with the
following:
(c) Payments. Interest payable hereunder shall
be due and payable, in arrears, on each Payment Date, or, in
the case of interest on Term Loan B, on each Payment Date B.
Borrower authorizes Lender, at its option, without prior
notice to Borrower, to charge such interest, all Lender
Expenses (as and when incurred), and all other payments to
Lender due under any Loan Document to Borrower's Loan
Account, which amounts thereafter shall accrue interest at
the rate applicable to the subject Term Loan, Term Loan B or
Capital Expenditure Loan, or if none, the most recently
funded of the Term Loan, Term Loan B or a Capital
Expenditure Loan. Any interest not paid when due shall be
compounded and shall thereafter accrue interest at the rate
applicable to the subject Term Loan, Term Loan B or Capital
Expenditure Loan.
(d) Computation. The Interest Rate as of the
date of this Agreement is 9.234% per annum. The Interest
Rate shall be calculated and fixed for Term Loan B and each
Capital Expenditure Loan as provided in the definition of
Interest Rate set forth hereinabove. All interest and fees
chargeable hereunder shall be computed on the basis of a 360
day year for the actual number of days elapsed.
Section 11. Amendment of Section 2.4. Section 2.4 of the Loan
Agreement is hereby amended by deleting the section in its entirety and
replacing such section with the following:
2.4 Disbursement of Loans. Lender is
authorized to make the Term Loan, the Term Loan B and the
Capital Expenditure Loans under this Agreement based upon
written instructions received from anyone believed in good
faith by Lender (without independent investigation) to be an
Authorized Person and subject to the terms and conditions
hereof. Borrower agrees to designate to Lender the Deposit
Account into which are to be deposited the proceeds of the
Term Loan and Capital Expenditure Loans requested by
Borrower and made by Lender hereunder. Borrower hereby
designates to Lender as the Deposit Account into which are
to be deposited the proceeds of the Term Loan B the
following account: Borrowers Account Number: Bank of
America 14654-01807. Subject to Lender's right hereunder
to directly pay vendors, contractors, subcontractors and
others providing or constructing the Improvements, the Term
Loan, Term Loan B and Capital Expenditure Loans requested by
Borrower and made by Lender hereunder shall be made to such
respective Deposit Accounts.
Section 12. Amendment of Section 2.5. Section 2.5 of the Loan
Agreement is hereby amended by deleting the first and last sentences
thereof and replacing such sentences with the following, respectively:
Lender shall maintain an account on its books in
the name of Borrower (the Loan Account) on which Borrower
will be charged with the Term Loan, the Term Loan B and all
Capital Expenditure Loans made by Lender to Borrower or for
Borrower's account, including, accrued interest, Lender
Expenses, and any other payment Obligations of Borrower.
Borrower shall execute and deliver to Lender the
Note which shall further evidence the Term Loan, the Term
Loan B and the Capital Expenditure Loans.
Section 13. Addition of New Section 2.7. There is hereby added
a new Section 2.7 to the Loan Agreement as follows:
2.7 Term Loan B. Lender has agreed to make a
term loan (the Term Loan B) to Borrower in the original
principal amount of $2,500,000. The Term Loan B shall be
repaid in 37 consecutive monthly installments, in arrears.
One interest only payment in the $5,947.22, shall be payable
on April 20, 2000. Thereafter, payments of principal and
interest on the 20th day of each and every month (the
Payment Date B), in 36 installments, 35 of which shall be
in the amount of $51,900.00, and the final installment in
the amount of $1,301,900. There shall be a $25,000 credit
against the first installment, with the balance, if any,
credited against the next successive installment. The
outstanding principal balance and all accrued and unpaid
interest under the Term Loan B shall be due and payable upon
the termination of this Agreement, whether by its terms, by
prepayment, by acceleration, or otherwise. The unpaid
principal balance of the Term Loan B may be prepaid subject
to the following conditions: (i) Borrower shall have
provided Lender 90 days prior written notice of Borrowers
intent to prepay; (ii) the Term Loan B may be prepaid in
full only (no partial prepayments permitted); and (iii) any
such prepayment shall be made together with payment of the
applicable Early Pay down Premium B as provided in Section
3.8.
Section 14. Amendment of Section 3.2(g): Changing the Measuring
Date for a Material Adverse Change. Section 3.2(g) of the Loan
Agreement is hereby amended by deleting the subsection in its entirety
and replacing such subsection with the following:
A(g) evidence that no Material Adverse Change
shall have occurred since October 29, 1999.
Section 15. Amendment of Section 3.3. Section 3.3 of the Loan
Agreement is hereby amended by deleting the first sentence thereof and
replacing such sentence with the following:
This Agreement shall become effective upon the
execution and delivery hereof by Borrower and Lender and
shall continue in full force and effect for a term ending on
the last Payment Date of the Term Loan or the last Payment
Date B of Term Loan B, whichever is later.
Section 16. Amendment of Section 3.5. Section 3.5 of the Loan
Agreement is hereby amended by deleting the portion of the first
sentence thereof through and including the colon appearing therein and
replacing such portion with the following:
Borrower has the option, on the third
anniversary date of the Closing Date and on each anniversary
date of the Closing Date thereafter, and subject to the
further conditions provided in Sections 2.1 and 2.7, to
terminate this Agreement by paying to Lender, in cash, the
Obligations together with a premium (the Early Payment
Premium) equal to the applicable percentage set forth below
of the then outstanding aggregate principal balance of the
Term Loan and the Capital Expenditure Loans and an
additional premium equal to the applicable percentage set
forth in Section 3.8 of the then outstanding principal
balance of the Term Loan B:
Section 17. Amendment of Section 3.6. Section 3.6 of the Loan
Agreement is hereby amended by deleting the section in its entirety and
replacing such section with the following:
3.6 Termination Upon Event of Default. If
Lender terminates this Agreement upon the occurrence of an
Event of Default, in view of the impracticability and
extreme difficulty of ascertaining actual damages and by
mutual agreement of the parties as to a reasonable
calculation of Lender's lost profits as a result thereof,
Borrower shall pay to Lender upon the effective date of such
termination, in addition to all other Obligations, a premium
in an amount equal to the sum of the Early Paydown Premium
applicable as of the most recently occurring anniversary
date of the Closing Date and the Early Paydown Premium B
applicable as of the effective date of such termination;
provided that during the first three years following the
Closing Date until the third anniversary date thereof, the
applicable Early Paydown Premium for the purposes of this
Section 3.6 shall be that applicable under Section 3.5 on
the third anniversary date. The sum of the Early Paydown
Premium and the Early Paydown Premium B shall be presumed to
be the amount of damages sustained by Lender as the result
of the early termination and Borrower agrees that it is
reasonable under the circumstances currently existing.
Section 18. Addition of New Section 3.7. There is hereby added
a new Section 3.7 to the Loan Agreement as follows:
A3.7 Conditions Precedent to Term Loan B. The
following shall be conditions precedent to the Term Loan B:
(a) the Closing Date B shall occur on or
before April 19, 2000;
(b) receipt and approval of an updated
adjusted cash flow valuation report from Baker & OBrien on
the Benicia refinery reflecting the contribution of the
155,000 barrel asphalt tank referred to in Section 7.15,
reasonably satisfactory to Lender;
(c) the representations and warranties
contained in this Agreement and the other Loan Documents
shall be true and correct in all material respects on and as
of the date of such extension of credit, as though made on
and as of such date (except to the extent that such
representations and warranties relate solely to an earlier
date);
(d) no Default or Event of Default shall
have occurred and be continuing on the Closing Date B, nor
shall either result from the making of Term Loan B;
(e) no injunction, writ, restraining
order, or other order of any nature prohibiting, directly or
indirectly, the extending of such credit shall have been
issued and remain in force by any governmental authority
against Borrower, Lender, or any of their Affiliates;
(f) Confirmation by Baker & OBrien that
the 155,000 barrel asphalt tank has been substantially
completed, that all appropriate permits and governmental
approvals have been obtained, that the construction was
performed in accordance with such permits and governmental
approvals and that the construction was performed in a good
and workmanlike manner;
(g) evidence that no Material Adverse
Change shall have occurred since October 29, 1999; and
(h) an opinion of Borrowers special
counsel in form and substance satisfactory to Lender in its
sole discretion.
Section 19. Addition of New Section 3.8. There is hereby added
a new Section 3.8 to the Loan Agreement as follows:
A3.8 Prepayment by Borrower. Borrower has the
option, subject to the further conditions provided in
Section 2.7, to prepay in full the Term Loan B, by paying to
Lender, in cash, the outstanding principal and accrued and
unpaid interest owing on the Term Loan B together with a
premium (the Early Paydown Premium B) equal to the
applicable percentage set forth below of the then
outstanding aggregate principal balance of the Term Loan B:
Year after Closing Date B Early Paydown Premium B
First 2.0%
Second 1.0%
Third .5%
Section 20. Amendment to Section 6: Including the Term Loan B.
The introductory paragraph to Section 6 of the Loan Agreement is hereby
amended by deleting the paragraph in its entirety and replacing such
paragraph with the following:
In order to induce Lender to enter into this
Agreement, Borrower makes the following representations and
warranties which shall be true, correct, and complete in all
material respects as of the Closing Date and as of the
Closing Date B, and at and as of the date of the making of
the Term Loan or each Capital Expenditure Loan made
thereafter or the Term Loan B, as though made on and as of
the date of the Term Loan, Term Loan B, or such Capital
Expenditure Loan (except to the extent that such
representations and warranties relate solely to an earlier
date) and such representations and warranties shall survive
the execution and delivery of this Agreement:
Section 21. Amendment to Section 7.15: Including the Term Loan
B. Section 7.15 of the Loan Agreement is hereby amended by deleting
the subsection in its entirety and replacing such subsection with the
following:
A7.15 Use of Loan Proceeds. Borrower shall use
the Loan proceeds: (i) of the Term Loan as provided in the
Refinancing and Amendatory Agreement and the Disbursement
Letter, to pay a $250,000 loan placement fee to Bank of
America, and to pay the other transaction costs and
expenses, including Lender Expenses, incurred in connection
herewith and the funding of the Term Loan; (ii) of each
Capital Expenditure Loan, to pay or reimburse the cost of
construction and provision of the Improvements strictly in
accordance with the Plans and Specifications and the terms
and conditions hereof; and (iii) for the Term Loan B, to
reimburse Borrower for its costs and expenses in connection
with building a 155,000 barrel asphalt tank and related
items at Borrowers Real Property consisting of the Benicia,
California refinery facility and related transaction costs
and expenses, and in all cases for no other purposes.
Section 22. Amendment of Schedule D-1. Schedule D-1 to the Loan
Agreement is amended by deleting the references therein to Wells Fargo,
Bank of America, Valencia National Bank, and Bankers Trust Company
accounts in their entirety and replacing such references with the
following:
Bank Account Description Account
Bank of America Huntway Concentration 14654-01807
Huntway Controlled Disbursement 77656-01121
Huntway Money Market W70-116246
Huntway Lockbox 14592-07632
Huntway Payroll 14658-01862
Sunbelt Checking 14650-01861
Sunbelt Imprest 107-709-133
Valencia National
Bank Huntway - Newhall Imprest 0101-2339
Huntway - Wilmington Imprest 0101-2347
Huntway - Benicia Imprest 0101-2355
Huntway Money Market 0102-0560
Sunbelt Operating 0101-1626
Section 23. Conflicting Terms. In the event of a conflict
between the terms and provisions of this Amendment and the terms and
provisions of the Loan Agreement, the terms of this Amendment shall
govern. In all other respects, the Loan Agreement, as amended and
supplemented hereby, shall remain in full force and effect.
Section 24. Miscellaneous. This Amendment shall be governed by
and construed in accordance with the laws of the State of California.
This Amendment may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any party
hereto may execute this Amendment by signing such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed by their respective officers thereunto duly
authorized as of the date first above written.
BORROWER: LENDER:
HUNTWAY REFINING COMPANY, BOEING CAPITAL CORPORATION,
a Delaware corporation a Delaware corporation
By By
Title Title
SECURED PROMISSORY NOTE - TERM LOAN B
$2,500,000 April 12, 2000
FOR VALUE RECEIVED, the undersigned Huntway Refining
Company, a Delaware corporation (Maker), hereby promises to pay to the
order of Boeing Capital Corporation, a Delaware corporation (Lender),
as hereinafter provided, the principal sum (the principal sum) of
$2,500,000, together with any and all Lender Expenses and Losses under
that certain Loan and Security Agreement dated as of January 31, 1999,
as amended by that certain Amendment Number One to Loan Agreement dated
as of January 20, 1999 and that certain Amendment Number Two to Loan
Agreement dated as of April 12, 2000, between Maker and Lender (the
Loan Agreement).
The unpaid principal balance of this Secured Promissory Note
- - Term Loan B (this Note) shall bear interest as provided in the Loan
Agreement. Interest chargeable hereunder shall be calculated as set
forth in the Loan Agreement.
The outstanding unpaid principal balance of the Term Loan
B evidenced hereby, together with any and all accrued and unpaid
interest hereunder, shall be due and payable in accordance with the
provisions of the Loan Agreement. Principal may be prepaid only as set
forth in the Loan Agreement.
Maker, for itself and its legal representatives, successors
and assigns, expressly waives presentment, demand, protest, notice of
dishonor, notice of non-payment, notice of maturity, notice of protest,
and presentment for the purpose of accelerating maturity, and Lender may
extend the time for payment or otherwise modify the terms of the payment
of any part or the whole of the debt evidenced hereby all to the extent
provided under the Loan Agreement.
IT IS EXPRESSLY AGREED THAT, UPON THE OCCURRENCE OF AN EVENT
OF DEFAULT UNDER THE LOAN AGREEMENT, LENDER SHALL HAVE THE RIGHTS AND
REMEDIES AS PROVIDED IN THE LOAN AGREEMENT, INCLUDING THE RIGHT TO
ACCELERATE THE UNPAID PRINCIPAL BALANCE OF THIS NOTE, TOGETHER WITH
INTEREST ACCRUED HEREON, SUBJECT TO THE TERMS OF THE LOAN AGREEMENT. IT
IS FURTHER UNDERSTOOD THAT THIS NOTE IS SECURED BY, AMONG OTHER THINGS,
THE LIENS UPON THE COLLATERAL AS DEFINED AND PROVIDED IN THE LOAN
AGREEMENT.
THE VALIDITY OF THIS NOTE AND ITS CONSTRUCTION,
INTERPRETATION, AND ENFORCEMENT HEREOF AND THE RIGHTS OF THE PARTIES
HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED HERETO
SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF CALIFORNIA AS AND TO THE EXTENT PROVIDED UNDER
SECTION 14 OF THE LOAN AGREEMENT. AS AND TO THE EXTENT PROVIDED IN THE
LOAN AGREEMENT, ACTIONS OR PROCEEDINGS RELATING TO THIS NOTE SHALL BE
TRIED AND LITIGATED IN THE STATE AND FEDERAL COURTS LOCATED IN THE
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA OR, AT THE SOLE OPTION OF
LENDER, IN ANY OTHER COURT IN WHICH LENDER SHALL INITIATE LEGAL OR
EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE
MATTER IN CONTROVERSY. MAKER WAIVES ITS RIGHT TO OBJECT TO SUCH VENUE
AND ITS RIGHT TO A TRIAL BY JURY AS AND TO THE EXTENT PROVIDED IN THE
LOAN AGREEMENT.
IN WITNESS WHEREOF, Maker has caused this Note to be duly
created on the day and year first above written.
MAKER
HUNTWAY REFINING COMPANY,
a Delaware corporation
By
Title: