<PAGE> 1
EXHIBIT 10.16.3
HERITAGE OPERATING, L.P.
THIRD AMENDMENT AGREEMENT
Re: Note Purchase Agreement dated as of June 25, 1996
Note Purchase Agreement dated as of November 19, 1997
Dated as of
May 31, 2000
To each of the Holders named
in Schedule 1 to this Consent and
Third Amendment Agreement
Ladies and Gentlemen:
Reference is made to
(i) the Note Purchase Agreement dated as of June 25, 1996 (the
"Original 1996 Agreement"), among Heritage Operating, L.P., a Delaware limited
partnership (the "Company") and the Purchasers named in the Purchaser Schedule
attached thereto, as amended by a First Amendment Agreement (the "First
Amendment Agreement") dated as of October 15, 1998 and a Second Amendment
Agreement (the "Second Amendment Agreement") dated as of September 1, 1999
(said Original 1996 Agreement, as amended by the First Amendment Agreement and
the Second Amendment Agreement, being hereinafter referred to as the
"Outstanding 1996 Agreement") under and pursuant to which the Company issued,
and there are presently outstanding, $120,000,000 aggregate principal amount of
its 8.55% Senior Secured Notes due 2011 (the "1996 Notes"); and
(ii) the Note Purchase Agreement dated as of November 19, 1997 (the
"Basic 1997 Agreement"), among the Company and the Purchasers named in the
Initial Purchaser Schedule attached thereto, as amended by the First Amendment
Agreement and the Second Amendment Agreement (said Basic 1997 Agreement, as so
amended, being hereinafter referred to as the "Amended Basic 1997 Agreement"),
under and pursuant to which the Company issued, and there are presently
outstanding, $12,000,000 aggregate principal amount of its 7.17% Series A
Senior Secured Notes due November 19, 2009 (the "Series A Notes") and
$20,000,000 aggregate principal amount of its 7.26% Series B Senior Secured
Notes due November 19, 2012 (the "Series B Notes"), as supplemented by the
First Supplemental Note Purchase Agreement dated as of March 13, 1998 the
"First Supplemental Agreement" among the Company and the Purchasers named in
the Supplemental Purchaser Schedule attached thereto, under and pursuant to
which (a) the Company issued $5,000,000 aggregate principal amount of its 6.50%
Series C
<PAGE> 2
Senior Secured Notes due March 13, 2007 (the "Series C Notes"), $4,285,714.29
of which are presently outstanding, and (b) the Company issued, and there are
presently outstanding, (x) $5,000,000 aggregate principal amount of its 6.59%
Series D Senior Secured Notes due March 13, 2010 (the "Series D Notes") and (y)
$5,000,000 aggregate principal amount of its 6.67% Series E Senior Secured
Notes due March 13, 2013 (the "Series E Notes").
The Amended Basic 1997 Agreement, as supplemented by the First Supplemental
Agreement is hereinafter sometimes referred to as the "Outstanding 1997
Agreement". The Outstanding 1996 Agreement and the Outstanding 1997 Agreement
are hereinafter sometimes collectively referred to as the "Outstanding
Agreements". The 1996 Notes, Series A Notes, Series B Notes, Series C Notes,
Series D Notes and Series E Notes are hereinafter sometimes collectively
referred to as the "Outstanding Notes." Capitalized terms used herein without
definition shall have the respective meanings assigned to such terms in the
Outstanding Agreements.
Exhibit A hereto contains letters of the Company dated May 11, 2000
and May 19, 2000 (collectively, the "Transaction Description"), describing
certain acquisitions by the Company, a proposed change in the ownership of the
General Partner, a proposed change in ownership of Common Units of the Master
Partnership and other matters set forth therein (collectively, the "Proposed
Reorganization").
The Company now seeks your agreement to an amendment with respect to
the each of the Outstanding Agreements necessary in order to effect the
Proposed Reorganization. You are the owner and holder of the Outstanding Notes
set forth opposite your name on Schedule 1 hereto. The Company hereby requests
that from and after the satisfaction of each of the Conditions to Effectiveness
set forth in Article II below, said amendment shall be deemed to have been
given and said Outstanding Agreements shall be amended in the respects, but
only in the respects, hereinafter set forth.
ARTICLE I
AMENDMENTS TO OUTSTANDING AGREEMENTS
I-A. Section 6A of each of the Outstanding Agreements shall be amended
by (x) changing the period at the end of clause (ii) to a semicolon, (y) adding
the word "or" after such semicolon, and (z) adding the following new clause
(iii):
"(iii) Ratio of Adjusted Consolidated Funded Indebtedness to
Adjusted Consolidated EBITDA. The ratio as at the end of any fiscal
quarter of Adjusted Consolidated Funded Indebtedness to Adjusted
Consolidated EBITDA to exceed 6.25 to 1.00."
I-B. Section 7A(xv) of each of the Outstanding Agreements shall be
amended by (i) adding before clause (a) the phrase "any of the events described
in clauses (a), (b), (c) or (d)
-2-
<PAGE> 3
shall occur:", (ii) adding before clause (b) the word "or" and (iii) deleting
clause (c) and inserting in lieu thereof the following new clauses (c) and (d):
"(c) the Specified Entities shall own, directly or indirectly through
Wholly-Owned Subsidiaries, in the aggregate less than 51% of the
Capital Stock of the General Partner, or (d) either Designated
Current Manager shall, at any time during the Lock-up Period
applicable to such Designated Current Manager, own, directly or
indirectly, less than 50% of the Common Units of the Master
Partnership owned, directly or indirectly, by such Designated Current
Manager immediately after giving effect to the Proposed
Reorganization; or"
I-C. Section 10B of each of the Outstanding Agreements shall be
amended by adding thereto, at the appropriate alphabetical position, the
following additional defined terms
"`Adjusted Consolidated EBITDA' shall mean, as of any date
of determination for any applicable period, Consolidated EBITDA
calculated
(x) with respect to the consolidated group
comprised of the General Partner, the Master Partnership and
the Company and its Subsidiaries (rather than with respect to
the consolidated group comprised of the Company and its
Subsidiaries), and
(y) as if the terms `Consolidated Non-Cash
Charges', `Consolidated Net Income', `Consolidated Interest
Expense', `Consolidated Income Tax Expense', `Asset Sale',
and `Asset Acquisition', were calculated with respect to the
consolidated group comprised of the General Partner, the
Master Partnership and the Company and its Subsidiaries
(rather than with respect to the consolidated group comprised
of the Company and its Subsidiaries)."
"`Adjusted Consolidated Funded Indebtedness' shall mean
Consolidated Funded Indebtedness calculated with respect to the
consolidated group comprised of the General Partner, the Master
Partnership and the Company and its Subsidiaries (rather than with
respect to the consolidated group comprised of the Company and its
Subsidiaries).
"`Designated Current Managers' shall mean R. C. Mills and H.
Michael Krimbill, current executive officers of the General Partner,
together with, in the case of either such executive officer, the heirs
of, and trusts for the benefit of family members controlled by, such
executive officer."
"`Lock-Up Period' shall mean, with respect to any Designated
Current Manager, the period from the date of the closing of the
Proposed Reorganization to the earlier to occur of (x) the third
anniversary of such closing, and (y) the first
-3-
<PAGE> 4
date on which such Designated Current Manager shall cease to be
employed by the General Partner, the Master Partnership or any of
their respective Affiliates."
"`Proposed Reorganization' shall have the meaning set forth
in the introductory portion of the Third Amendment Agreement, dated as
of May 31, 2000, with respect to this Agreement."
"`Specified Entities' shall mean any one or more of the
following entities: (i) Atmos Energy Corporation, a Texas and Virginia
corporation, (ii) Piedmont Natural Gas Company, Inc., a North Carolina
corporation, (iii) AGL Resources, Inc., a Georgia corporation, and
(iv) TECO Energy, Inc., a Florida corporation, or a Successor to any
entity referred to in clause (i), (ii), (iii) or (iv) of this
definition."
"`Successor' shall mean, with respect to a Specified Entity,
any entity in which the holders of the Capital Stock of such Specified
Entity outstanding immediately prior to a consolidation, acquisition
or merger involving such Specified Entity hold, directly or indirectly
through Wholly-Owned Subsidiaries, at least a majority of the Capital
Stock immediately after such consolidation, acquisition or merger."
ARTICLE II
CONDITIONS OF EFFECTIVENESS
The effectiveness of this Third Amendment Agreement is subject to the
satisfaction of the following conditions:
(a) the Required Holders under each of the of Outstanding
Agreements shall have consented to this Third Amendment Agreement as
evidenced by their execution thereof;
(b) the requisite percentage of lenders under the Credit
Agreement (the "Lenders") shall have agreed to all amendments
necessary to effect the Proposed Reorganization and a copy thereof
shall have been provided to the holders of the Outstanding Notes. In
the event the Company agrees that the Lenders or holders of any of the
Outstanding Notes shall be granted any additional or more restrictive
financial or negative covenants or events of default than are imposed
on the Company under the Outstanding Agreements, as amended hereby,
the Company agrees that the holders of all other Outstanding Notes
shall also be granted such more restrictive covenants or events of
defaults;
(c) each of the holders of the Outstanding Notes shall have
received an amendment fee from the Company in an amount equal to .10%
of the aggregate principal
-4-
<PAGE> 5
amount of the Outstanding Notes held by such holder (the "Amendment
Fee") and a Responsible Officer of the Company shall have certified to
each such holder (the truth and accuracy of which certification shall
constitute a Condition of Effectiveness) that the Lenders have
received no amendment fees or other consideration (including increase
in coupon) greater than the Amendment Fee;
(d) the Holders of the Outstanding Notes shall have received
evidence that (i) the Master Partnership shall have transferred to the
Company an equity contribution in the amount of at least $45,000,000
(the "Equity Contribution"), and (ii) the entire amount of such Equity
Contribution shall have been applied to the payment of outstanding
Indebtedness of the Company;
(e) all counsel to the holders of the Outstanding Notes
shall have been paid fees and expenses incurred in connection with
this Third Amendment Agreement;
(f) materials reasonably satisfactory to the holders of the
Outstanding Notes shall have been delivered evidencing that the
Proposed Reorganization has become effective; and
(g) each of the Designated Current Managers shall have
entered into an employment agreement to act as an executive manager of
the General Partner for a period of at least three years, all as
contemplated in the Proposed Reorganization.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
In order to induce the holders of the Notes to enter into this Third
Amendment, the Company represents and warrants that, (a) no Event of Default
has occurred and is continuing; (b) after giving effect to the Proposed
Reorganization, no Event of Default shall have occurred; and (c) the
information set forth in the Transaction Description does not contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements contained therein, in light of the
circumstances under which they were made, not misleading.
ARTICLE IV
MISCELLANEOUS
IV-A. If the foregoing is acceptable to you, kindly note your acceptance
in the space provided below and upon satisfaction of the Conditions to
Effectiveness set forth in Article II above, your consent to the Proposed
Reorganization shall be deemed to have been given and the Outstanding
Agreements shall be amended as set forth above.
-5-
<PAGE> 6
IV-B. This Third Amendment Agreement may be executed by the parties
hereto individually, or in any combination of the parties hereto in several
counterparts, all of which taken together shall constitute one and the same
Third Amendment Agreement.
IV-C. Except as amended hereby, all of the representations, warranties,
provisions, covenants, terms and conditions of the Outstanding Agreements shall
remain unaltered and in full force and effect and the Outstanding Agreements,
as amended hereby, are in all respects agreed to, ratified and confirmed by the
Company. The Company acknowledges and agrees that the granting of amendments
herein shall not be construed as establishing a course of conduct on the part
of the holders of the Outstanding Notes upon which the Company may rely at any
time in the future.
IV-D. Upon the effectiveness of this Third Amendment Agreement, each
reference in each Outstanding Agreement and in other documents describing or
referencing such Outstanding Agreement to "this Agreement," "hereunder,"
"hereof," "herein," or words of like import referring to such Outstanding
Agreement, shall mean and be a reference to such Outstanding Agreement, as
amended hereby.
Very truly yours,
HERITAGE OPERATING, L.P.
By Heritage Holdings, Inc., General Partner
By
Its
----------------------------------------
-6-
<PAGE> 7
The foregoing Third Amendment Agreement and the amendments referred to
therein are hereby accepted and agreed to as of May 31, 2000, and the
undersigned hereby confirms that on May 31, 2000 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
JOHN HANCOCK LIFE INSURANCE
COMPANY
By
----------------------------------
Its
JOHN HANCOCK VARIABLE LIFE INSURANCE
COMPANY
By
----------------------------------
Its
MELLON BANK, N.A., solely in its capacity as
Trustee for the Long-Term Investment Trust
(as directed by John Hancock Life Insurance
Company), and not in its individual capacity
By
----------------------------------
Its
THE NORTHERN TRUST COMPANY, as Trustee of the
Lucent Technologies Inc. Master Pension Trust
By: John Hancock Life Insurance Company,
As Investment Manager
By
----------------------------
Its
-7-
<PAGE> 8
The foregoing Third Amendment Agreement and the amendments referred to
therein are hereby accepted and agreed to as of May 31, 2000, and the
undersigned hereby confirms that on May 31, 2000 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By
----------------------------------
Its
-8-
<PAGE> 9
The foregoing Third Amendment Agreement and the amendments referred to
therein are hereby accepted and agreed to as of May 31, 2000, and the
undersigned hereby confirms that on May 31, 2000 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
PRINCIPAL LIFE INSURANCE COMPANY
(f/k/a Principal Mutual Life Insurance Company)
By
----------------------------------
Its
By
----------------------------------
Its
-9-
<PAGE> 10
The foregoing Third Amendment Agreement and the amendments referred to
therein are hereby accepted and agreed to as of May 31, 2000, and the
undersigned hereby confirms that on May 31, 2000 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
NEW YORK LIFE INSURANCE COMPANY
By
----------------------------------
Its
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION
By: New York Life Asset Management
Operating Company, LLC,
its Investment Manager
By
----------------------------------
Its
-10-
<PAGE> 11
The foregoing Third Amendment Agreement and the amendments referred to
therein are hereby accepted and agreed to as of May 31, 2000, and the
undersigned hereby confirms that on May 31, 2000 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By
----------------------------------
Its
-11-
<PAGE> 12
The foregoing Third Amendment Agreement and the amendments referred to
therein are hereby accepted and agreed to as of May 31, 2000, and the
undersigned hereby confirms that on May 31, 2000 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
KEYPORT LIFE INSURANCE COMPANY
By Stein Roe & Farnham Incorporated, as agent
By
----------------------------------
Its
-12-
<PAGE> 13
The foregoing Third Amendment Agreement and the amendments referred to
therein are hereby accepted and agreed to as of May 31, 2000, and the
undersigned hereby confirms that on May 31, 2000 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
J. ROMEO & CO.
By
----------------------------------
Its
-13-
<PAGE> 14
The foregoing Third Amendment Agreement and the amendments referred to
therein are hereby accepted and agreed to as of May 31, 2000, and the
undersigned hereby confirms that on May 31, 2000 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
PACIFIC LIFE INSURANCE COMPANY
(formerly Pacific Mutual Life Insurance Company)
By
----------------------------------
Its
By
----------------------------------
Its
PACIFIC LIFE INSURANCE COMPANY
By
----------------------------------
Its
By
----------------------------------
Its
-14-
<PAGE> 15
The foregoing Third Amendment Agreement and the amendments referred to
therein are hereby accepted and agreed to as of May 31, 2000, and the
undersigned hereby confirms that on May 31, 2000 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
PHOENIX HOME LIFE MUTUAL INSURANCE
COMPANY
By
----------------------------------
Its
-15-
<PAGE> 16
The foregoing Third Amendment Agreement and the amendments referred to
therein are hereby accepted and agreed to as of May 31, 2000, and the
undersigned hereby confirms that on May 31, 2000 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
RELIASTAR LIFE INSURANCE COMPANY
By
----------------------------------
Its
-16-
<PAGE> 17
The foregoing Third Amendment Agreement and the amendments referred to
therein are hereby accepted and agreed to as of May 31, 2000, and the
undersigned hereby confirms that on May 31, 2000 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
COLUMBIA UNIVERSAL LIFE INSURANCE COMPANY
By
----------------------------------
Its
-17-
<PAGE> 18
The foregoing Third Amendment Agreement and the amendments referred to
therein are hereby accepted and agreed to as of May 31, 2000, and the
undersigned hereby confirms that on May 31, 2000 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
PROTECTIVE LIFE INSURANCE COMPANY
By
----------------------------------
Its
By
----------------------------------
Its
-18-
<PAGE> 19
The foregoing Third Amendment Agreement and the amendments referred to
therein are hereby accepted and agreed to as of May 31, 2000, and the
undersigned hereby confirms that on May 31, 2000 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
ALLSTATE LIFE INSURANCE COMPANY
By
----------------------------------
Name:
By
----------------------------------
Name:
Authorized Signatories
-19-
<PAGE> 20
The foregoing Third Amendment Agreement and the amendments referred to
therein are hereby accepted and agreed to as of May 31, 2000, and the
undersigned hereby confirms that on May 31, 2000 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
JEFFERSON PILOT FINANCIAL INSURANCE COMPANY
(FKA Chubb Life Insurance Company of America)
By
----------------------------------
Its
-20-
<PAGE> 21
SCHEDULE 1
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT AND
SERIES OF OUTSTANDING
NAME OF HOLDER NOTES HELD AS OF
OF OUTSTANDING NOTES MAY 31, 2000
<S> <C>
John Hancock Life Insurance Company $13,000,000 1996 Notes
John Hancock Life Insurance Company $ 8,000,000 1996 Notes
John Hancock Variable Life Insurance Company $ 1,000,000 1996 Notes
Mellon Bank, N.A., Trustee under the Long-Term
Investment Trust dated October 1, 1996 $ 960,000 1996 Notes
The Northern Trust Company, as Trustee of the
Lucent Technologies Inc. Master Pension Trust $ 2,040,000 1996 Notes
Massachusetts Mutual Life Insurance Company $15,000,000 1996 Notes
Principal Life Insurance Company $15,000,000 1996 Notes
New York Life Insurance Company $12,500,000 1996 Notes
Teachers Insurance and Annuity Association of America $12,500,000 1996 Notes
Keyport Life Insurance Company $10,000,000 1996 Notes
J. Romeo & Co. $ 3,500,000 1996 Notes
J. Romeo & Co. $ 4,000,000 1996 Notes
Pacific Mutual Life Insurance Company $ 5,500,000 1996 Notes
Phoenix Home Life Mutual Insurance Company $ 5,000,000 1996 Notes
ReliaStar Life Insurance Company $ 5,000,000 1996 Notes
Columbia Universal Life Insurance Company $ 2,000,000 1996 Notes
</TABLE>
<PAGE> 22
<TABLE>
<S> <C>
Allstate Life Insurance Company $ 2,000,000 1996 Notes
Protective Life Insurance Company $ 3,000,000 1996 Notes
Pacific Life Insurance Company $12,000,000 Series A Notes
Pacific Life Insurance Company $ 8,000,000 Series B Notes
New York Life Insurance Company $ 5,000,000 Series B Notes
New York Life Insurance and Annuity Corporation $ 7,000,000 Series B Notes
Allstate Life Insurance Company $ 4,285,714.29 Series C Notes
Chubb Life Insurance Company of America $ 5,000,000 Series D Notes
J. Romeo & Co. $ 5,000,000 Series E Notes
</TABLE>
