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EXHIBIT 10.1.2
SECOND AMENDMENT TO
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT,
dated effective as of May 31, 2000 (the "Second Amendment"), is entered into
between and among HERITAGE OPERATING, L.P., a Delaware limited partnership (the
"Borrower") and BANK OF OKLAHOMA, NATIONAL ASSOCIATION ("BOk"), FIRSTAR BANK
N.A., (formerly known as Mercantile Bank National Association) ("Firstar") and
LOCAL OKLAHOMA BANK, N.A. ("Local") (BOk, Firstar and Local, together with each
other Person that becomes a Bank pursuant to Article XI of the Credit Agreement
(hereinafter defined) collectively referred to herein as the "Banks"), BOk, as
administrative agent for the Banks (in such capacity, the "Administrative
Agent") and Firstar, as co-agent for the Banks (in such capacity, the
"Co-Agent").
WHEREAS, the Borrower, the Banks, the Administrative Agent and the
Co-Agent entered into (i) that certain First Amended and Restated Credit
Agreement dated as of May 31, 1999 (the "Original Restated Credit Agreement"),
and (ii) that certain First Amendment to First Amended and Restated Credit
Agreement dated as of October 15, 1999 (the "First Amendment"); and
WHEREAS, the Original Restated Credit Agreement, as amended and
modified by the First Amendment, is hereinafter sometimes referred to as the
"Credit Agreement"; and
WHEREAS, capitalized terms used herein without definition shall have
the respective meanings assigned to such terms in the Credit Agreement; and
WHEREAS, the Borrower has heretofore sent the Administrative Agent a
letter dated May 15, 2000, (the "Reorganization Letter"), describing certain
acquisitions by the Borrower, 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 (the "Proposed Reorganization");
and
WHEREAS, the Borrower has requested the Banks, the Administrative Agent
and the Co-Agent to (i) consent, subject to the satisfaction of certain
conditions to effectiveness, to an amendment to the Credit Agreement, and (ii)
consent to an amendment to Section 2.2.2 of the Credit Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Upon satisfaction of each of the conditions to effectiveness
set forth in paragraph 6 below:
A. Section 1.1 of the Credit Agreement shall be amended by
adding thereto, at the appropriate alphabetical position, the
following additional defined terms:
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"`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 Borrower
and its Subsidiaries (rather than with respect to the
consolidated group comprised of the Borrower 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 Borrower and its Subsidiaries
(rather than with respect to the consolidated group
comprised of the Borrower 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 Borrower and its Subsidiaries
(rather than with respect to the consolidated group
comprised of the Borrower and its Subsidiaries)."
"`Designated Current Managers' shall mean R. C. Mills
and H. Michael Krimbill, current executive officers of the
General Partner, together, in the case of either such
executive officer, with the heirs of, and trusts for the
benefit of family members controlled by, such executive
officer."
"`Lock-Up Period' shall mean, with respect to each
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 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 fourth "Whereas" clause of the Second
Amendment, 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
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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."
B. Section 7B.1 of the Credit Agreement shall be amended by
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."
C. Section 9.1(xv) of the Credit Agreement shall be amended
by (i) adding before clause (a) the phrase "any of the events
described in clauses (a), (b), (c) or (d) shall occur: ", and
(ii) 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".
2. Section 2.2.2 of the Credit Agreement is deleted in its
entirety and replaced with the following:
"2.2.2. Maximum Amount of Working Capital Credit. The term
`Maximum Amount of Working Capital Credit' means, on any date,
$35,000,000 minus the outstanding principal balance on the
Indebtedness permitted by Section 7B.2(v) or such lesser amount
as the Borrower may
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specify from time to time by notice from the Borrower to the
Administrative Agent; provided that the aggregate outstanding
principal amount of Working Capital Loan shall be $0 for a period
of not less than 30 consecutive calendar days at least one time
during each fiscal year of the Borrower ending subsequent to
September 1, 2000 (the "Annual Clean-Up"). Failure by the
Borrower to comply with the provisions of the Annual Clean-Up
shall constitute a failure to pay the Loans when due and an Event
of Default under Section 9.1."
3. Existing Credit Agreement/Counterparts. All of the remaining
terms, provisions and conditions of the Credit Agreement, except as
otherwise expressly amended and modified by this Second Amendment,
shall continue in full force and effect in all respects. This Second
Amendment may be executed in multiple counterparts, each of which
shall be deemed an original and all of which shall constitute a single
Second Amendment. Delivery of an executed counterpart of a signature
page to this Second Amendment by telecopier shall be as effective as
delivery of a manually executed counterpart of this Second Amendment.
4. Further Assurances. The Borrower will, upon the request of the
Administrative Agent from time to time, promptly execute, acknowledge
and deliver, and file and record, all such instruments and notices,
and take all such action, as the Administrative Agent deems necessary
or advisable to carry out the intent and purposes of this Second
Amendment and the Credit Agreement.
5. General. The Credit Agreement and all of the other Loan
Documents are each confirmed as being in full force and effect. This
Second Amendment, the Credit Agreement and the other Loan Documents
referred to herein or therein constitute the entire understanding of
the parties with respect to the subject matter hereof and thereof and
supersede all prior and current understandings and agreements, whether
written or oral, with respect to such subject matter. The invalidity
or unenforceability of any provision hereof shall not affect the
validity and enforceability of any other term or provision hereof. The
headings in this Second Amendment are for convenience of reference
only and shall not alter, limit or otherwise affect the meaning
hereof. Each of this Second Amendment and the Credit Agreement is a
Loan Document and may be executed in any number of counterparts, which
together shall constitute one instrument, and shall bind and inure to
the benefit of the parties and their respective successors and assigns
including as such successors and assigns all holders of any Note. This
Second Amendment shall be governed by and construed in accordance with
the laws (other than the conflict of law rules) of the State of
Oklahoma.
6. Conditions to Effectiveness. The effectiveness of this Second
Amendment is subject to the satisfaction of the following conditions:
(a) the Required Banks under the Credit Agreement shall have
consented to this Second Amendment as evidenced by their
execution thereof;
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(b) the requisite percentages of holders of Private
Placement Notes shall have agreed to all amendments necessary to
effect the Proposed Reorganization and a copy thereof shall have
been provided to the Administrative Agent. In the event the
Borrower agrees that the holders of any Private Placement Notes
shall be granted any additional or more restrictive financial or
negative covenants or events of default than are imposed on the
Borrower under the Credit Agreement, as amended hereby, the
Borrower agrees that the Banks shall also be granted such more
restrictive covenants or events of defaults;
(c) each of the Banks shall have received an amendment fee
from the Borrower in an amount equal to .10% of the aggregate
principal amount of the Loan owing to such Bank on the date
hereof (the "Amendment Fee") and a Responsible Officer of the
Borrower shall have certified to the Administrative Agent (the
truth and accuracy of which certification shall constitute a
condition of effectiveness hereunder) that the holders of the
Private Placement Notes have received no amendment fees or other
consideration (including increase in coupon) greater than the
Amendment Fee;
(d) the Administrative Agent shall have received evidence
that (i) the Master Partnership shall have transferred to the
Borrower 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 Borrower;
(e) counsel to the Banks shall have been paid fees and
expenses incurred in connection with this Second Amendment; and
(f) materials reasonably satisfactory to the Administrative
Agent shall have been delivered evidencing that the Proposed
Reorganization has become effective.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to First Amended and Restated Credit Agreement to be duly executed and
delivered in Tulsa, Oklahoma, effective as of the 31st day of May, 2000, by the
undersigned duly authorized officers thereof.
"Borrower"
HERITAGE OPERATING, L.P., a Delaware
limited partnership
By: Heritage Holdings, Inc., a Delaware
corporation, general partner
By:
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H. Michael Krimbill
President
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"Banks"
BANK OF OKLAHOMA, NATIONAL ASSOCIATION
By:
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Its:
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FIRSTAR BANK N.A. (formerly known as
Mercantile Bank National Association)
By:
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Its:
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LOCAL OKLAHOMA BANK, N.A.
By:
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Its:
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"Administrative Agent"
BANK OF OKLAHOMA, NATIONAL
ASSOCIATION
By:
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Its:
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"Co-Agent"
FIRSTAR BANK N.A. (formerly known as
Mercantile Bank National Association)
By:
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Its:
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