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EXHIBIT 4.3
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UNITHOLDERS AGREEMENT
BY AND AMONG
HUNTWAY PARTNERS, L.P.,
AND
BANKERS TRUST COMPANY,
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY,
MELLON BANK, N.A., as trustee for First Plaza Group Trust,
▇▇▇▇▇▇▇▇▇▇▇ & COMPANY, INC., for itself and as
agent for certain affiliates, ▇▇▇▇▇▇▇ GROWTH FUND,
FIRST CHICAGO EQUITY CORPORATION and
MADISON DEARBORN PARTNERS III
as Unitholders
Dated as of December 12, 1996
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TABLE OF CONTENTS
Page
ARTICLE 1
AGREEMENTS REGARDING ISSUANCE
AND TRANSFER OF UNITS AND PROTECTIVE RIGHTS . . . . . . . . . . . . . 2
1.1 Initial Issuance of Protective Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
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1.2 Subsequent Issuances of Protective Rights and Units . . . . . . . . . . . . . . . . . . . . . . . . . . 2
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1.3 Restrictions on Transfer of Units and Protective Rights . . . . . . . . . . . . . . . . . . . . . . . . 3
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ARTICLE 2
CONDITIONS TO EFFECTIVENESS . . . . . . . . . . . . . . . . . 3
2.1 Plan Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
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2.2 Execution and Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
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2.3 Registration Rights Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY . . . . . . . . . . . . . 3
3.1 Organization and Standing of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
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3.2 Partnership Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
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3.3 Governmental Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
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3.4 Compliance with Other Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
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3.5 Securities Act of 1933 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
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3.6 No Brokers or Finders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
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3.7 Capitalization; Status of Units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF UNITHOLDERS . . . . . . . . . . . . . 5
4.1 Representations by each Unitholder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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ARTICLE 5
REPORTING REQUIREMENTS . . . . . . . . . . . . . . . . . . 5
ARTICLE 6
DEFINITIONS AND ACCOUNTING TERMS . . . . . . . . . . . . . . . . 5
6.1 Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Class 2 Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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Class 2 Unitholder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Class 5 Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Class 5 Unitholder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Class 6 Equity Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Class 6 Unitholder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Class 8 Equity Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Class 8 Option Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Collateralized Note Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Collateralized Note Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Exemption Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Interest Units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Junior Note Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Junior Note Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Junior Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Protected Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Protective Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Senior Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Senior Notes (Other) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Senior Notes (Sunbelt IDB) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 7
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . 8
7.1 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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7.2 Amendments, Waivers and Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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7.3 Addresses for Notices, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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7.4 Costs, Expenses and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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7.5 Binding Effect; Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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7.6 Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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7.7 Prior Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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7.8 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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7.9 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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7.10 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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7.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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7.12 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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UNITHOLDERS AGREEMENT
This UNITHOLDERS AGREEMENT (the "Agreement") is made and
entered into as of December 12, 1996, by and among HUNTWAY PARTNERS, L.P., a
Delaware limited partnership, (the "Company"), and BANKERS TRUST COMPANY,
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, MELLON BANK, N.A., as trustee for
First Plaza Group Trust, ▇▇▇▇▇▇▇▇▇▇▇ & COMPANY, INC., for itself and as agent
for certain affiliates, ▇▇▇▇▇▇▇ GROWTH FUND, FIRST CHICAGO EQUITY CORPORATION
and MADISON DEARBORN PARTNERS III (each, a "Unitholder" and collectively, the
"Unitholders").
R E C I T A L S
WHEREAS, the Company is a debtor and debtor in possession
under chapter 11 of Title 11 of the United States Code, having commenced a
bankruptcy case on November 12, 1996;
WHEREAS, on November 12, 1996, the Company submitted to the
United States Bankruptcy Court for the District of Delaware (the "Court") a
Plan of Reorganization dated November 12, 1996 (the "Plan"), and on December
12, 1996, the Court confirmed the Plan;
WHEREAS, the Plan provides, among other things, that (i) the
Company will issue Senior Notes in an original aggregate principal amount of
$23,500,000.00 and 6,335,663 Units, representing approximately 25% of the total
Units of the Company outstanding upon consummation of the Plan to the holders
of Class 2 Claims, (ii) the Company will issue Junior Notes in the original
aggregate principal amount of $2,070,000.00 and 1,115,077 Units, representing
approximately 4.4% of the total Units of the Company outstanding upon
consummation of the Plan to the holders of Class 5 Claims, (iii) the Company
will issue 6,335,663 Units, representing approximately 25% of the total Units
of the Company outstanding upon consummation of the Plan to holders of Class 6
Equity Interests, and (iv) the Company will issue Options to acquire 2,815,850
Units to holders of Class 8 Equity Interests;
WHEREAS, the Junior Note Indenture provides that interest
accruing on the Junior Notes is payable through the issuance by the Company of
additional Units ("Interest Units") in amounts determined in accordance with
the Junior Note Indenture;
WHEREAS, the Company has agreed pursuant to the Plan that,
whenever Interest Units are issued pursuant to the Junior Note Indenture, the
Company will simultaneously issue to the Class 2 Unitholders, Class 5
Unitholders, and Class 6 Unitholders and their permitted assignees additional
Units in amounts sufficient to protect the Units issued to such Unitholder
under the Plan and under this Agreement from dilution caused by the issuance of
Dilutive Rights;
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WHEREAS, the Unitholders have agreed not to sell any Units
received by them pursuant to the Plan for a period of 180 days from the Plan
Effective Date;
WHEREAS, the parties wish to enter into this Agreement in
order to set forth their agreement with respect to the issuance of additional
Units to the Unitholders and their agreement restricting the transfer of Units
by the Unitholders;
WHEREAS, it is a condition precedent to the effectiveness of
the Plan that the Company and the Unitholders shall have entered into this
Agreement;
NOW, THEREFORE, in consideration of the mutual promises and
agreements herein, and subject to the terms and conditions hereinafter set
forth, the parties hereby agree as follows:
ARTICLE 1
AGREEMENTS REGARDING ISSUANCE
AND TRANSFER OF UNITS AND PROTECTIVE RIGHTS
1.1 Initial Issuance of Protective Rights. Upon consummation of
the Plan, each Unitholder shall be automatically granted hereunder a number of
rights ("Protective Rights") equal to the number of Units issued under the Plan
to each such Unitholder in respect of its Class 2 Claims, Class 5 Claims and
Class 6 Equity Interests.
1.2 Subsequent Issuances of Protective Rights and Units.
(a) On each Junior Note Interest Payment Date, each holder of
Protective Rights shall be automatically granted hereunder a number of
additional Protective Rights, rounded to the nearest whole number, sufficient
to cause each such holder to hold a number of Protective Rights such that the
ratio of (w) the aggregate number of Protective Rights held by such holder
after such issuance of new Protective Rights divided by (x) the total number of
Units outstanding on a fully diluted basis (e.g., assuming the exercise of all
Options) immediately after the issuance of Dilutive Rights on such date
(including Units issued pursuant to Section 1.2(b)), is equal to the ratio of
(y) the aggregate number of Protective Rights held by such holder immediately
prior to the issuance of new Protective Rights on such date, divided by (z) the
total number of Units outstanding on a fully diluted basis (e.g., assuming the
exercise of all Options) immediately prior to the issuance of Dilutive Rights
on such date. "Dilutive Rights" means (i) the Interest Units issued by the
Company pursuant to the Junior Note Indenture on the applicable Junior Note
Interest Payment Date, (ii) the Options (or similar rights to acquire Units)
issued by the Company to the Class 8 Option Holders in connection with the
issuance of Interest Units on such Junior Note Interest Payment Date, and (iii)
the issuance of additional Units pursuant to Section 1.2(b) on such Junior Note
Interest Payment Date. The Protective Rights issued pursuant to this Section
1.2(a) shall be issued without payment of additional consideration.
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(b) On each Junior Note Interest Payment Date, the Company shall
issue to each holder of Protective Rights a number of additional Units equal to
the number of Protective Rights issued to such holder in accordance with
Section 1.2(a) of this Agreement on such Junior Note Interest Payment Date.
The Units issued pursuant to this Section 1.2(b) shall be issued without
payment of additional consideration.
1.3 Restrictions on Transfer of Units and Protective Rights. Each
Unitholder covenants and agrees that such Unitholder shall not sell, transfer,
assign or convey or otherwise dispose of any Unit or Protective Right or any
interest therein during the first 180 days following the Plan Effective Date.
ARTICLE 2
CONDITIONS TO EFFECTIVENESS
This Agreement shall become effective upon the satisfaction of each of
the following conditions:
2.1 Plan Effectiveness. All conditions precedent to the
effectiveness of the Plan (other than the execution and delivery of this
Agreement) shall have been satisfied or waived in accordance with the
provisions of the Plan.
2.2 Execution and Delivery. This Agreement shall have been
executed by the Company and each Unitholder and the Company and each Unitholder
shall have received written or telephonic notification of the authorization of
delivery thereof.
2.3 Registration Rights Agreement. A Registration Rights
Agreement in form and substance reasonably satisfactory to the parties hereto
shall have been executed by the Company, the its general partners and each
Unitholder and the Company and each Unitholder shall have received written or
telephonic notification of the authorization of delivery thereof.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to each Unitholder that:
3.1 Organization and Standing of the Company. The Company is a
duly organized and validly existing limited partnership in good standing under
the laws of the State of Delaware and has all requisite partnership power and
authority for the ownership and operation of its properties and for the
carrying on of its business as now conducted and as proposed to be conducted.
The Company is duly licensed or qualified and in good standing as a foreign
partnership authorized to do business in alljurisdictions in which the nature
of the respective business conducted or property owned by it makes such
qualification necessary.
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3.2 Partnership Action; Enforceable Agreements. The Company has
the partnership power and authority, and has taken all necessary partnership
action required, to execute and deliver this Agreement, the Units and any other
agreements and instruments executed in connection herewith and therewith, and
each such agreement and/or instrument constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms.
3.3 Governmental Approvals. Except for the filings to be made, if
any, to comply with exemptions from registration or qualification of the sale
of the Units under federal and state securities laws (collectively, "Exemption
Filings"), no authorization, consent, approval, license, exemption of, or
filing or registration with, any court or governmental agency or
instrumentality is necessary for the offer, issuance, sale, execution or
delivery by the Company of, or for the performance by it of its obligations
under, this Agreement or the Units or any of the transactions contemplated
hereunder. All Exemption Filings will be timely made by the Company after the
Closing Date.
3.4 Compliance with Other Instruments. The Company is in
compliance in all respects with the terms and provisions of (i) its Amended and
Restated Agreement of Limited Partnership and certificate of limited
partnership, as amended through and including the Plan Effective Date, (ii)
each mortgage, indenture, lease, agreement and other instrument relating to
obligations of the Company, and (iii) all judgments, decrees, governmental
orders, statutes, rules or regulations by which it is bound or to which its
properties or assets are subject. Neither the execution and delivery of this
Agreement or the Units, nor the consummation of any transaction contemplated
hereby or thereby, has constituted or resulted in a default or violation of any
term or provision in any of the foregoing documents or instruments.
3.5 Securities Act of 1933. The Company has complied and will
comply with all applicable federal or state securities laws in connection with
the issuance of the Units hereunder.
3.6 No Brokers or Finders. The Company owes no commission, fee or
other compensation to any Person as a finder or broker as a result of the
transactions contemplated by this Agreement.
3.7 Capitalization; Status of Units. 25,342,654 Units will be
issued and outstanding immediately after the Plan Effective Date and Options to
acquire 3,961,909 Units will be issued and outstanding immediately after the
Plan Effective Date. All of the outstanding Units of the Company have been
duly authorized, are validly issued and have not been issued in violation of
any Person's preemptive rights and all Units issuable upon exercise of
outstanding Options have been duly authorized and, when issued in accordance
with the terms of such Options will be validly issued and not issued in
violation of any Person's preemptive rights. The Units are duly authorized
and, when issued in accordance with the terms hereof, will be validly issued
and free and clear of all liens and encumbrances created by the Company.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF UNITHOLDERS
4.1 Representations by each Unitholder. Each Unitholder represent
for itself and no other Unitholder that:
(a) It is duly authorized to execute and deliver this
Agreement and all other agreements and instruments executed in connection
herewith.
(b) This Agreement and such other agreements and
instruments constitute the valid and binding obligations of such Unitholder
enforceable against it in accordance with their respective terms;
(c) No consent or approval of any Person is required in
connection with the execution, delivery and performance of this Agreement and
such other agreements and instruments by such Unitholder which has not
heretofore been obtained.
ARTICLE 5
REPORTING REQUIREMENTS
Together with each issuance of Units made by the Company to
the Unitholders pursuant to Section 1.1 hereof, the Company shall deliver to
each holder of Protective Rights a certificate setting forth the number of
Interest Units issued pursuant to Section 307 of the Junior Note Indenture on
the correlative Junior Note Interest Payment Date.
ARTICLE 6
DEFINITIONS AND ACCOUNTING TERMS
6.1 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Agreement" means this Unitholders Agreement, as from time to
time amended and in effect between the parties hereto.
"Class 2 Claim" has the meaning assigned thereto in the Plan.
"Class 2 Unitholder" means an entity receiving Units in the
Plan in respect of its Class 2 Claim.
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"Class 5 Claim" has the meaning assigned thereto in the Plan.
"Class 5 Unitholder" means an entity receiving Units in the
Plan in respect of its Class 5 Claim.
"Class 6 Equity Interest" has the meaning assigned thereto in
the Plan.
"Class 6 Unitholder" means an entity receiving Units in the
Plan in respect of its Class 6 Equity Interest.
"Class 8 Equity Interest" has the meaning assigned thereto in
the Plan.
"Class 8 Option Holder" means an entity receiving Options in
the Plan in respect of its Class 8 Equity Interest.
"Closing" means the date that all conditions precedent to the
effectiveness of this Agreement set forth in Article 2 have been satisfied or
waived in writing.
"Collateralized Note Indenture" means that certain Amended and
Restated Collateralized Note Indenture dated as of December 12, 1996, by and
between Huntway and Fleet National Bank, as Indenture Trustee, pursuant to
which the Senior Notes are issued, as such agreement may be amended, amended
and restated, supplemented or modified from time to time.
"Collateralized Note Obligations" means all obligations of the
Company arising under the Collateralized Note Indenture and the Senior Notes.
"Company" means Huntway Partners, L.P. a Delaware limited
partnership and its successors and assigns.
"Effective Date" means the date on which the Plan becomes
effective.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Securities and Exchange Commission (or of any other Federal agency then
administering the Exchange Act) thereunder, all as the same shall be in effect
at the time.
"Exemption Filings" shall have the meaning assigned to that
term in Section 3.3 of this Agreement.
"Interest Units" has the meaning assigned thereto in the
recitals to this Agreement.
"Junior Note Indenture" means the Amended and Restated Junior
Subordinated Debenture Indenture dated as of December 12, 1996, between the
Company and the IBJ
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▇▇▇▇▇▇▇▇ Bank & Trust Company, as Indenture Trustee, pursuant to which the
Junior Notes are issued.
"Junior Note Interest Payment Date" means each date on which
the Company pays interest to the holders of Junior Notes under the Junior Note
Indenture in the form of Units.
"Junior Notes" means the Company's 12% Junior Debentures Due
2005 issued and outstanding pursuant to the Junior Note Indenture.
"Options" means options issued by the Company to acquire
Units.
"Person" means an individual, corporation, partnership, joint
venture, trust, or unincorporated organization, or a government or any agency
or political subdivision thereof.
"Plan" has the meaning assigned thereto in the Recitals to
this Agreement.
"Protected Options" means all Options issued to the Class 8
Option Holders on the Plan Effective Date in satisfaction of their respective
Class 8 Equity Interests, and all Options issued to the Class 8 Option Holders
and their permitted assignees to protect such Class 8 Option Holders from
dilution caused by the issuance of Dilutive Rights.
"Protective Rights" has the meaning assigned thereto in
Section 1.1.
"Securities Act" means the Securities Act of 1933, as amended,
or any similar Federal statute, and the rules and regulations of the Securities
and Exchange Commission (or of any other Federal agency then administering the
Securities Act) thereunder, all as the same shall be in effect at the time.
"Senior Notes" means the Senior Notes (Other) and the Senior
Notes (Sunbelt IDB).
"Senior Notes (Other)" means the Company's 12% Senior Secured
Notes (Other) Due 2005 issued and outstanding pursuant to the Collateralized
Note Indenture (including any Secondary Securities (as such term is defined in
the Collateralized Note Indenture), but excluding the Senior Notes (Sunbelt
IDB)).
"Senior Notes (Sunbelt IDB)" means the Company's 12% Senior
Secured Notes (Sunbelt IDB) Due 2005 issued and outstanding pursuant to the
Collateralized Note Indenture.
"Units" means units representing a fractional part of the
partnership interests of the limited partners in the Amended and Restated
Agreement of Limited Partnership of Huntway Partners, L.P. dated as of November
9, 1988, among Huntway Managing Partner, L.P., a Delaware limited partnership,
and each of the other partners named therein, as
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amended through and including the date hereof and as it may be further amended
or restated from time to time.
6.2 Accounting Terms.
All accounting terms not specifically defined herein shall be
construed in accordance with generally accepted accounting principles, and all
other financial data submitted pursuant to this Agreement shall be prepared and
calculated in accordance with such principles.
ARTICLE 7
MISCELLANEOUS
7.1 No Waiver; Cumulative Remedies. No failure or delay on the
part of any Unitholder in exercising any right, power or remedy hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
7.2 Amendments, Waivers and Consents. Any provision in this
Agreement or the Units to the contrary notwithstanding, no changes in or
additions to this Agreement or the Units may be made, and compliance with any
covenant or provision herein or therein set forth may not be omitted or waived,
until and unless the Company obtains consent thereto in writing from each
Unitholder. Any waiver or consent may be given subject to satisfaction of
conditions stated therein and any waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
7.3 Addresses for Notices, etc. All notices, requests, demands
and other communications provided for hereunder shall be in writing (including
telegraphic communication) and mailed, by certified or registered mail, or
telegraphed or delivered to the address for such party listed on the signature
pages hereof; or to any party as such other address as shall be designated by
such party in a written notice to the other parties delivered in accordance
with this Section.
7.4 Costs, Expenses and Taxes. Each party shall pay its own fees
in connection with the investigation, preparation, execution and delivery of
this Agreement, the Units and other instruments and documents to be delivered
hereunder and the transactions contemplated hereby and thereby. In addition,
the Company shall pay any and all material stamp and other taxes payable or
determined to be payable by the Company in connection with the execution and
delivery of this Agreement, the Units, and other instruments and documents to
be delivered hereunder or thereunder, and agrees to save each Unitholder
harmless from and against any and all liabilities with respect to or resulting
from any delay in paying or omission to pay such taxes and filing fees. In the
event of any controversy, claim or dispute
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among the parties hereto arising out of or relating to this Agreement, or any
breach hereof, the prevailing party shall be entitled to recover from the
losing party reasonable attorney's fees, expenses and costs.
7.5 Binding Effect; Assignment. This Agreement shall be binding
upon and inure to the benefit of the Company, each Unitholder, and their
respective successors and permitted assigns. The Company shall not have the
right to assign its obligations hereunder without the prior written consent of
each Unitholder obtained in accordance with Section 7.2 hereof. Subject to
Section 1.3, each Unitholder (an "Assignor") may assign all or any portion of
its rights and interests hereunder to any person or entity (an "Assignee") and
upon any such assignment, the Assignee shall be deemed to be a "Unitholder"
hereunder; provided, that (i) each Unitholder that is listed on the signature
pages hereof may assign its interest hereunder to not more than four Assignees;
(ii) each Assignee of a Unitholder may further assign its rights hereunder only
in whole and not in part, (iii) each Assignee of a Unitholder shall be an
"Accredited Investor" as such term is defined in Regulation D to the Securities
Act of 1933, as amended from time to time and (iv) each Assignee of a
Unitholder shall provide evidence reasonably satisfactory to the Company of
such Assignees's agreement to be bound by the terms of this Agreement and its
acknowledgment that the Protective Rights are speculative in nature and the
Assignee is able to bear the economic risk of such investment, including a
total loss of value of such investment. The proposed Assignor and Assignee of
any Protective Rights shall jointly provide prior notice to the Company of any
such proposed assignment and shall provide evidence of the Assignee's agreement
and representation contemplated by the preceding sentence. Except as otherwise
expressly permitted by this Agreement, any assignment or transfer of this
Agreement or any rights hereunder shall be void ab initio and of no force and
effect.
7.6 Survival of Representations and Warranties. All
representations and warranties made in this Agreement, the Units or any other
instrument or document delivered in connection herewith or therewith, shall
survive the execution and delivery hereof or thereof.
7.7 Prior Agreements. This Agreement evidences the obligation of
the Company set forth in Article II of the Plan to issue Units to the holders
of Class 2 Claims, Class 5 Claims and Class 6 Equity Interests to prevent
dilution caused by the issuance of the Dilutive Rights. This Agreement
constitutes the entire agreement between the parties and supersedes any prior
understandings or agreements concerning the subject matter hereof.
7.8 Severability. The invalidity or unenforceability of any
provision hereto shall in no way affect the validity or enforceability of any
other provision.
7.9 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
7.10 Headings. Article, Section and subsection headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
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7.11 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
7.12 Further Assurances. From and after the date of this Agreement,
upon the reasonable request of any party hereto, the other parties hereto shall
execute and deliver such instruments, documents and other writings as may be
reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
HUNTWAY PARTNERS, L.P.
By: HUNTWAY MANAGING PARTNER, L.P., its
Managing General Partner
By: Huntway Division of Reprise holdings,
Inc., its sole General Partner
By:___________________________
Title:
UNITHOLDERS:
BANKERS TRUST COMPANY
By: ________________________________
Title:
Notice Address:
One Bankers Trust Plaza
Mail Stop 2283
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10066
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By: _________________________
Name: ______________________
Title: ______________________
Notice Address:
▇▇▇▇ ▇▇▇▇▇▇
Mass Mutual Life Insurance Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇-▇
▇▇
▇▇▇▇▇▇ ▇▇▇▇, N.A., as trustee for First Plaza
Group Trust
By: _________________________
Name: ______________________
Title: ______________________
Notice Address:
c/o ▇▇▇▇ ▇. ▇▇▇▇▇
Managing Partner
Contrarian Capital Management, L.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ & COMPANY, INC., for itself and
as agent for certain affiliates
By: _________________________
Name: ______________________
Title: ______________________
Notice Address:
c/o ▇▇▇▇ ▇. ▇▇▇▇▇
Managing Partner
Contrarian Capital Management, L.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ GROWTH FUND
By: ▇▇▇▇▇▇ MANAGEMENT CORPORATION
By: _________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: ______________________
Notice Address:
c/▇ ▇▇▇▇▇▇ Management Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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FIRST CHICAGO EQUITY CORPORATION
By: _________________________
Name: ______________________
Title: ______________________
Notice Address:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
First Chicago Equity Corporation
Three First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇ ▇▇▇ ▇▇▇▇
MADISON DEARBORN PARTNERS III
By: _________________________
Name: ______________________
Title: ______________________
Notice Address:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Madison Dearborn Partners
Three First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇ ▇▇▇ ▇▇▇▇
S-3