HEP’s Supplemental Indentures
Prior to settlement of the Exchange Offers and Consent Solicitations and upon receipt of the requisite consents to adopt the Proposed Amendments with respect to each series of HEP Notes, the HEP Issuers entered into (i) a Second Supplemental Indenture (the “HEP 2027 Notes Second Supplemental Indenture”) among the HEP Issuers, as issuers, the other subsidiary guarantors party thereto (the “Guarantors”) and U.S. Bank Trust Company, National Association, as trustee (the “HEP Trustee”), to that certain Indenture, dated as of April 8, 2022 (as supplemented by the First Supplemental Indenture, dated May 22, 2022, the “HEP Existing 2027 Notes Indenture” and, as further supplemented by the HEP 2027 Notes Second Supplemental Indenture, the “HEP 2027 Notes Indenture”), among the HEP Issuers, as issuers, the Guarantors and the HEP Trustee, as trustee, relating to the HEP Issuers’ HEP 2027 Notes and (ii) a Third Supplemental Indenture (the “HEP 2028 Notes Third Supplemental Indenture,” and, together with the HEP 2027 Notes Second Supplemental Indenture, the “HEP Supplemental Indentures”) among the HEP Issuers, as issuers, the Guarantors and the HEP Trustee, as trustee, to that certain Indenture, dated as of February 4, 2020 (as supplemented by the First Supplemental Indenture, dated March 14, 2022 and as further supplemented by the Second Supplemental Indenture, dated May 22, 2022, the “HEP Existing 2028 Notes Indenture” and, as further supplemented by the HEP 2028 Notes Third Supplemental Indenture, the “HEP 2028 Notes Indenture” and, together with the HEP 2027 Notes Indenture, the “HEP Indentures”), among the HEP Issuers, as issuers, the Guarantors and the HEP Trustee (as successor to U.S. Bank, National Association), as trustee, relating to the HEP Issuers’ HEP 2028 Notes. The HEP Supplemental Indentures became operative on the Settlement Date and amended each respective HEP Indenture to, among other things, eliminate from each HEP Indenture, as it relates to each series of HEP Notes (i) substantially all of the restrictive covenants, (ii) certain of the events which may lead to an “Event of Default”, (iii) the U.S. Securities and Exchange Commission reporting covenant and (iv) the requirement of HEP to offer to purchase the HEP Notes upon a change of control (collectively, the “Proposed Amendments”).
The above descriptions of the HEP 2027 Notes Second Supplemental Indenture and the HEP 2028 Notes Third Supplemental Indenture do not purport to be complete and are qualified in their entirety by reference to the full texts of the HEP 2027 Notes Second Supplemental Indenture and the HEP 2028 Notes Third Supplemental Indenture, copies of which are filed as Exhibits 4.1 and 4.2, respectively, to the Company’s Current Report on Form 8-K filed on November 14, 2023 and incorporated into this Item 1.01 by reference.
Registration Rights Agreement
On the Settlement Date, in connection with the issuance of the New Notes, the Company, BofA Securities, Inc., Wells Fargo Securities, LLC and the additional parties listed thereto, as the dealer managers, entered into a registration rights agreement (the “Registration Rights Agreement”). The Company agreed under the Registration Rights Agreement to use its commercially reasonable efforts to (i) file a registration statement on an appropriate registration form with respect to a registered offer to exchange the New Notes for notes with terms substantially identical in all material respects to the New Notes, as applicable (except that the exchange notes will not contain terms with respect to transfer restrictions or any increase in annual interest rate) and (ii) cause the registration statement to be declared effective under the Securities Act.
The Company shall be obligated to pay additional interest on the New Notes if, among other things, (i) it does not complete the exchange offer on or prior to December 4, 2024 (the “Target Registration Date”), or, if the shelf registration statement with respect to the New Notes (if required to be filed) is not declared effective on or prior to the 60th day after the later of (a) the Target Registration Date and (b) the date on which the Company receives a duly executed Shelf Request (as defined in the Registration Rights Agreement), or (ii) if applicable, a shelf registration statement covering resales of the New Notes has been declared effective and such shelf registration statement ceases to be effective or the prospectus contained therein ceases to be usable for resales of Registrable Securities (as defined in the Registration Rights Agreement) at any time during the Shelf Effectiveness Period (as defined in the Registration Rights Agreement) (a) on more than two occasions of at least 30 consecutive days during the Shelf Effectiveness Period or (b) at any time in any 12-month period during the Shelf Effectiveness Period and such failure to remain effective or be so usable exists for more than 90 days (whether or not consecutive) in any 12-month period.
The above description of the Registration Rights Agreement is qualified in its entirety by reference to the text of the Registration Rights Agreement, a copy of which is included as Exhibit 4.4 to this Current Report on Form 8-K and incorporated herein in its entirety.
Cancellation of the HEP Notes
Pursuant to the Exchange Offers, the aggregate principal amounts of each respective series of HEP Notes set forth below were validly tendered and accepted and subsequently cancelled.
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Title of Series of HEP Notes |
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Aggregate Principal Amount Cancelled |
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6.375% Senior Notes due 2027 |
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$ |
399,875,000 |
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5.000% Senior Notes due 2028 |
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$ |
498,879,000 |
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