<PAGE> 1
EXHIBIT 10.2.6 AND 10.16.4
HERITAGE OPERATING, L.P.
FOURTH AMENDMENT AGREEMENT
Re: Note Purchase Agreement dated as of June 25, 1996
Note Purchase Agreement dated as of November 19, 1997
Dated as of
August 10, 2000
To each of the Holders named
in Schedule 1 to this Fourth
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 letter agreement
(the "Letter Agreement") dated July 25, 1996, a First Amendment
Agreement (the "First Amendment Agreement") dated as of October 15,
1998, a Second Amendment Agreement (the "Second Amendment Agreement")
dated as of September 1, 1999 and a Third Amendment Agreement (the
"Third Amendment Agreement" dated as of May 31, 2000 (said Original
1996 Agreement, as amended by the Letter Agreement, the First Amendment
Agreement, the Second Amendment Agreement and the Third 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 "Original 1997 Agreement"), among the Company and the Purchasers
named in the Initial Purchaser Schedule attached thereto, as amended by
the First Amendment Agreement dated as of October 15, 1998, a Second
Amendment Agreement (the "Second Amendment Agreement") dated as of
September 1, 1999 and a Third Amendment Agreement (the "Third Amendment
Agreement" dated as of May 31, 2000 (said Original 1997 Agreement, as
so amended by the First Amendment Agreement, the Second Amendment
Agreement and the Third Amendment Agreement, being hereinafter referred
to as the "Amended Original 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
<PAGE> 2
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 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 to its 6.67%
Series E Senior Secured Notes due March 13, 2013 (the "Series E
Notes").
The Amended Original 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.
The Company now desires to amend certain provisions of the Outstanding
Agreements. 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 IV below, said amendments 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 4C(ii) of each of the Outstanding Agreements is hereby
amended by deleting the reference to "clause (v)" and inserting in lieu thereof
the reference to "clause (iv)".
I-B. Section 4D(vi) of each of the Outstanding Agreements is hereby
amended by deleting the phrase "clause (x) of".
I-C. The lead-in paragraph of Section 5A of each of the Outstanding
Agreements is hereby amended by deleting the phrase "in triplicate".
I-D. Section 5A(ii) of each of the Outstanding Agreements is hereby
deleted in its entirely and the following shall be substituted therefor:
" (ii) as soon as practical and in any event within 95 days after the
end of each fiscal year, consolidated statements of income and cash
flows and a consolidated statement of partners' capital (or
stockholders' equity, as applicable) of the Company and its
Subsidiaries for such year, and consolidated balance sheets of
-2-
<PAGE> 3
the Company and its Subsidiaries, as at the end of such year, setting
forth in each case, in comparative form corresponding consolidated
figures from the preceding annual audit, all in reasonable detail and
reported on by Arthur Andersen LLP, or other independent public
accountants of recognized national standing selected by the Company
whose report shall be without limitation as to the scope of the audit
(provided that such report shall not include with the scope of the
audit the consolidating statements, if any, required by the final
proviso of this clause (ii)); provided, however, that at any time when
the Master Partnership shall be subject to the reporting requirements
of Section 13 or 15(d) of the Exchange Act delivery within the time
period specified above of copies of the Annual Report on Form 10-K of
the Master Partnership for such fiscal year prepared in compliance with
the requirements therefor and filed with the Commission shall be deemed
to satisfy the requirements of this clause (ii) if (x) the Consolidated
Net Income of the Company and its Subsidiaries accounts for at least
95% of the net income of the Master Partnership for such fiscal year,
and (y) all such statements required to be delivered pursuant to this
clause (ii) with respect to the Company and its Subsidiaries are either
included in such Form 10-K or delivered separately by the Company
together with such Form 10-K; and, provided further, however, that at
any time the Total Assets of the Company and its Subsidiaries account
for less than 85% of the Total Assets of the Master Partnership for any
fiscal year, then the statements and balance sheet required to be
delivered with respect to the Company and its Subsidiaries in this
clause (ii) for such fiscal year shall be both consolidated and
consolidating, and such consolidating statements shall be certified by
an authorized financial officer of the Company as presenting fairly, in
all material respects, the information contained therein, in accordance
with GAAP (except for the absence of footnotes); "
I-E. Section 5A(xi) of each of the Outstanding Agreements is hereby
amended by (x) deleting the phrase "; and" at the end of such subsection and (y)
inserting the following phrase at the end of such subsection:
"; provided, however, that for so long as the Security Agreement
remains in full force and effect, delivery by the Company to the
Collateral Agent of the report specified in Section 5.1(g) of the
Security Agreement shall be deemed to satisfy the requirements of this
clause (xi); and".
I-F. Section 5 of each of the Outstanding Agreements is hereby amended
by inserting the following section immediately after Section 5Q thereof:
"Section 5R. General Partner. At such time as U.S. Propane
shall be substituted for Heritage as general partner of the Company,
(i) no Default or Event of Default shall exist and be continuing before
and after giving effect to such substitution, (ii) U.S. Propane shall
assume in writing the obligations of Heritage under the Partnership
Agreement, (iii) U.S. Propane shall not engage in any business or own
any assets other than the ownership of general and/or limited partner
interests in the Company and the Master Partnership and the ownership
of interests in the General Partner and any
-3-
<PAGE> 4
activities incidental thereto, including, without limitation, cash
management services for Heritage, the Company and its Subsidiaries and
inter-company loans made to Heritage, the Company and its Subsidiaries
in the ordinary course of business and (iv) immediately after giving
effect to such substitution, no Material Adverse Effect shall exist."
I-G. Section 6B(ii) of each of the Outstanding Agreements is hereby
amended by deleting the reference to "$35,000,000" and inserting in lieu thereof
the following amount of "$50,000,000".
I-H. Section 6B(iii) of each of the Outstanding Agreements is hereby
amended by deleting the reference to "$3,000,000" and inserting in lieu thereof
the following amount of "$10,000,000".
I-I Section 6B(v) of each of the Outstanding Agreements is hereby
amended by deleting the reference to "$1,000,000" and inserting in lieu thereof
the following amount of "$3,000,000".
I-J. Section 6B(viii) of each of the Outstanding Agreements is hereby
deleted in its entirely and the following shall be substituted therefor:
"(viii) M-P Energy Partnership and M-P Oils, Ltd. may become
and remain liable with respect to Indebtedness in an aggregate
principal amount not to exceed $10,000,000, and the Company may become
and remain liable with respect to Guarantees of such Indebtedness of
M-P Energy Partnership or M-P Oils, Ltd. and of Indebtedness of
Bi-State, Heritage Energy Resources L.L.C., or any other Subsidiaries
of the Company, provided that the aggregate amount of all Guarantees
permitted by this clause (viii) shall not exceed $10,000,000;"
I-K. Section 6C(viii)(a)(x) of each of the Outstanding Agreements is
hereby amended by deleting the phrase "of the character".
I-L. Section 6C(xiii) of each of the Outstanding Agreements is hereby
amended by deleting the reference to "$2,000,000" and inserting in lieu thereof
the following amount of "$6,000,000".
I-M. Section 6D(i) of each of the Outstanding Agreements is hereby
amended by deleting the reference to "$5,000,000" and inserting in lieu thereof
the following amount of "$15,000,000".
I-N. Section 6E(i) of each of the Outstanding Agreements is hereby
deleted in its entirety and the following shall be substituted therefor:
"(i) the Company or any of its Subsidiaries may make and own
Investments (w) consisting of Units issued for purposes of making
acquisitions, (x) arising out of loans and advances by the Company to
any Wholly-Owned Subsidiary incurred in the ordinary course of the
Company's business as
-4-
<PAGE> 5
conducted through its Subsidiaries or to employees incurred in the
ordinary course of business and consisting of advances to pay
reimbursable expenditures, (y) arising out of extensions of trade
credit or advances to third parties in the ordinary course of business
and (z) acquired by reason of the exercise of customary creditors'
rights upon default or pursuant to the bankruptcy, insolvency or
reorganization of a debtor;"
I-O. Section 6E(iii)(d)(1)(B) of each of the Outstanding Agreements is
hereby amended by inserting the word "unsecured" immediately preceding the
phrase "debt obligations of which".
I-P. Clause (iii) of the proviso to Section 6E(v) of each of the
Outstanding Agreements is hereby amended by deleting the phrase "exceed
$3,000,000" and inserting in lieu thereof the following phrase "of determination
exceed 2% of Consolidated Net Tangible Assets (provided that the aggregate
amount of Investments permitted under this subclause (iii) shall not at any time
exceed $12,500,000)".
I-Q. Section 6G(i) of each of the Outstanding Agreements is hereby
amended by inserting the phrase "and its Subsidiaries" immediately following the
phrase "less than the Consolidated Net Worth of the Company" in clauses
(b)(I)(x) and (c)(III)(x) thereof.
I-R. Subsections (a), (b), (c) and (d) of Section 6G(iii) of each of
the Outstanding Agreements are hereby deleted in their entireties and the
following shall be substituted therefor:
"(a) immediately after giving effect to such proposed disposition no
Default or Event of Default shall exist and be continuing, satisfaction
of this requirement to be set forth in reasonable detail in an
Officer's Certificate delivered to each holder of a Note at the time of
such transaction in the case of any Asset Sale involving assets that
generate Consolidated EBITDA and involve consideration of $2,500,000 or
more;
(b) such sale or other disposition is for cash consideration or for
consideration consisting of not less than 75% cash and not more than
25% interest-bearing promissory notes; provided that the limitation
described in this clause (b) shall not apply to any sale or other
disposition generating less than $2,500,000 of Net Proceeds;
(c) one of the following two conditions must be satisfied:
(I) (x) the aggregate Net Proceeds of all assets so disposed
of (whether or not leased back) over the immediately preceding
12-month period does not exceed $5,000,000 and (y) the
aggregate Net Proceeds of all assets so disposed of (whether
or not leased back) from the date of issue of the initial Note
under this Agreement through the date of such disposition does
not exceed $20,000,000; or
-5-
<PAGE> 6
(II) in the event that such Net Proceeds (less the amount
thereof previously applied in accordance with clause (x) of
this clause (c)(II)) exceeds the limitations determined
pursuant to clauses (x) and (y) of clause (c)(I) of this
Section 6G (such excess amount being herein called "Excess
Sale Proceeds"), the Company shall within 12 calendar months
of the date on which such Net Proceeds exceeded any such
limitation, cause an amount equal to such Excess Sale Proceeds
to be applied (x) to the acquisition of assets in replacement
of the assets so disposed of or of assets which may be
productively used in the United States of America or Canada in
the conduct of the Business, or (y) to the extent not applied
pursuant to the immediately preceding clause (x), to offer to
make prepayments on the Notes pursuant to Section 4C hereto
and, allocated on the basis specified for such prepayments in
the definition of Allocable Proceeds, to offer to repay other
Parity Debt (other than Indebtedness under Section 6B(ii) or
that by its terms does not permit such offer to be made); and
(d) such sale or other proposed disposition shall be for fair value and
in the best interests of the Company, satisfaction of this requirement
to be certified in an Officer's Certificate delivered to the
Noteholders in the case of any Asset Sale involving assets that
generate Consolidated EBITDA and involve consideration of $2,500,000 or
more."
I-S. Section 6I(i)(b)(y) of each of the Outstanding Agreements is
hereby amended by inserting the phrase "or a Wholly-Owned Subsidiary of the
General Partner" immediately following the phrase "Capital Stock of which was
purchased by the General Partner".
I-T. Section 7A(iii) of each of the Outstanding Agreements is hereby
amended by deleting the reference to "$2,000,000" and inserting in lieu thereof
the following amount of "$5,000,000".
I-U. Section 7A(xi) of each of the Outstanding Agreements is hereby
amended by deleting the reference to "$2,000,000" and inserting in lieu thereof
the following amount of "$5,000,000".
I-V. Section 7A(xv) of each of the Outstanding Agreements is hereby
amended by (x) deleting the phrase "on the Closing Date" and inserting in lieu
thereof the phrase "from time to time and in accordance with Section 6H" and (y)
inserting the phrase "or U.S. Propane" immediately following the phrase ", or
(b) Heritage".
I-W. Section 8B of each of the Outstanding Agreements is hereby amended
by inserting the phrase "(or, if applicable, U.S. Propane)" immediately
following (i) the phrase "of the Company is Heritage" and (ii) the phrase
"partners other than Heritage".
-6-
<PAGE> 7
I-X. Section 8C of each of the Outstanding Agreements is hereby amended
by inserting the phrase ", limited liability company" immediately following the
phrase "in good standing as a foreign corporation".
I-Y. Section 8N of each of the Outstanding Agreements is hereby amended
by deleting the reference to "$2,000,000" and inserting in lieu thereof the
following amount of "$5,000,000".
I-AA. Subsections (ii), (iii), (iv) and (v) of Section 8O of each of
the outstanding Agreements are hereby deleted in their entireties and the
following shall be substituted therefor:
"(ii) (a) There is no Hazardous Substance present at any of
the real property currently owned or leased by the Company, any of its
Subsidiaries or Heritage except to the extent that such presence could
not reasonably be expected to have a Material Adverse Effect, and (b)
to the knowledge of the Company, any of its Subsidiaries or Heritage,
there was no Hazardous Substance present at any of the real property
formerly owned or leased by the Company, any of its Subsidiaries or
Heritage during the period of ownership or leasing by the Company, any
of its Subsidiaries or Heritage except to the extent that such presence
could not be reasonably expected to have a Material Adverse Effect; and
with respect to such real property and subject to the same knowledge
and temporal qualifiers concerning Hazardous Substances with respect to
formerly owned or leased real properties, there has not occurred (x)
any release, or to the knowledge of the Company, any of its
Subsidiaries or Heritage, threatened release of a Hazardous Substance,
or (y) any discharge or, to the knowledge of the Company, any of its
Subsidiaries or Heritage, threatened discharge of any Hazardous
Substance into the ground, surface or navigable waters which discharge
or threatened discharge violates any federal, state, local or foreign
laws, rules or regulations concerning water pollution, except to the
extent that such release or discharge could not reasonably be expected
to have a Material Adverse Effect.
(iii) None of the Company, any of its Subsidiaries or Heritage
has disposed of, transported, or arranged for the transportation or
disposal of any Hazardous Substance where such disposal,
transportation, or arrangement would give rise to liability pursuant to
CERCLA or any analogous state statute other than any such liabilities
that could not reasonably be expected to have a Material Adverse
Effect.
(iv) As of the date hereof: (a) no Lien has been asserted by
any Governmental Authority or person resulting from the use, spill,
discharge, removal, or remediation of any Hazardous Substance with
respect to any real property currently owned or leased by the Company,
any of its Subsidiaries or Heritage, and (b) to the knowledge of the
Company, any of its Subsidiaries or Heritage, no such Lien was asserted
with respect to any of the real property formerly owned or leased by
Heritage during the period of ownership or leasing of the real property
by such Person.
-7-
<PAGE> 8
(v) (a) There are no underground storage tanks,
asbestos-containing materials, polychlorinated biphenyls, or urea
formaldehyde insulation at any of the real property currently owned or
leased by the Company, any of its Subsidiaries or Heritage in violation
of any Environmental Law, and (b) to the knowledge of the Company, any
of its Subsidiaries or Heritage, there were no underground storage
tanks, asbestos-containing materials, polychlorinated biphenyls, or
urea formaldehyde insulation at any of the real property formerly owned
or leased by Heritage in violation of any Environmental Law during the
period of ownership or leasing of such real property by such Person."
I-BB. The definition of "Reinvestment Yield" set forth in Section 10A
of each of the Outstanding Agreements is hereby amended by deleting the phrase
""678" on the Telerate" and inserting in lieu thereof the phrase ""PX1" on the
Bloomberg Financial Markets" in each place it shall occur.
I-CC. Section 10B of each of the Outstanding Agreements is hereby
amended by deleting the definitions of "Acquisition Facility," "Administrative
Agent," "Bi-State," "Business," "Business Day," "Contracted Dollar," "Credit
Agreement," "Current Management," "General Partner," "PUCHA" and "Revolving
Working Capital Facility," contained therein and inserting in lieu thereof the
following definitions in the appropriate alphabetical position:
""Acquisition Facility" shall mean the acquisition revolving
credit facility of the Company provided for in the Credit Agreement for
the purpose of financing acquisitions and improvements and repairs in
the aggregate principal amount not to exceed $50,000,000."
""Administrative Agent" shall mean Bank of Oklahoma, National
Association (as successor to The First National Bank of Boston), as
administrative agent under the Credit Agreement, together with its
successors as such Administrative Agent."
""Bi-State" shall mean Bi-State Propane, a California limited
partnership."
""Business" shall mean the business of wholesale and retail
sales, storage, transportation and distribution of propane gas,
providing repair, installation and maintenance services for propane
heating systems; the sale and distribution of propane-related supplies
and equipment (including appliances); the generation, transportation,
sale, distribution and marketing relating thereto of propane-powered
fuel cells, or the power generated therefrom and equipment related
thereto, and the marketing of natural gas to any then current propane
user in such areas where the Company operates from time to time,
provided, that, with respect to such marketing, the Company shall act
only as a marketing agent for a natural gas utility and shall receive a
fee or other compensation for such services provided."
-8-
<PAGE> 9
""Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which commercial banks in New York City and Tulsa,
Oklahoma are required or authorized to be closed."
""Contracted Dollar" shall mean the sum of: $50,000,000 (which
is the aggregate principal amount permitted with respect to the
Acquisition Facility and any Indebtedness incurred for any permitted
purpose which replaces, extends, renews, refunds or refinances any such
Indebtedness); and (b) $10,000,000 (which is the aggregate principal
amount permitted with respect to Indebtedness owing to sellers in Asset
Acquisitions (in addition to permitted Non-Compete Obligations))."
""Credit Agreement" shall mean the First Amended and Restated
Credit Agreement dated as of May 31, 1999 among the Company, the agents
listed therein and the financial institutions which are or become
parties from time to time thereto, evidencing the Acquisition Facility
and the Revolving Working Capital Facility, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
the terms thereof and hereof."
""Current Management" shall mean not less than any two of the
following: James E. Bertelsmeyer, R. C. Mills, H. Michael Krimbill,
Brad Atkinson or Larry Dagley, together with the heirs of, and trusts
for the benefit of family members controlled by, any such executive
manager."
"General Partner" shall mean Heritage (or, if applicable, U.S.
Propane) in its capacity as general partner of the Company."
"PUHCA" shall have the meaning specified in Section 8T."
""Revolving Working Capital Facility" shall mean the
$50,000,000 revolving credit facility of the Company provided for in
the Credit Agreement for working capital and other general partnership
purposes not to exceed $50,000,000 aggregate principal amount at any
time outstanding."
I-BB. Section 10B of each of the Outstanding Agreements is hereby
amended by inserting the definitions of "Contribution Agreement," "U.S. Propane"
and "U.S. Propane Acquisition" in the appropriate alphabetical positions:
""Contribution Agreement" shall mean the Contribution
Agreement, dated June 15, 2000, by and among U.S. Propane, the Company
and the Master Partnership, as in effect on August 10, 2000."
""U.S. Propane" shall mean U.S. Propane L.P., a Delaware
limited partnership."
""U.S. Propane Acquisition" shall mean the acquisition by the
Company of certain Subsidiaries of U.S. Propane in accordance with the
Contribution Agreement and the other transactions contemplated
thereby."
-9-
<PAGE> 10
I-CC. Each of the Outstanding Agreements is hereby amended to add the
form of Schedule 8W attached to this Fourth Amendment Agreement.
ARTICLE II
AMENDMENTS TO OUTSTANDING 1996 AGREEMENT
II-A. Section 8 of the Outstanding 1996 Agreement is hereby amended by
inserting the following sections immediately after Section 8U thereof:
"Section 8V. Certain Representations of Company and General
Partner. The representations and warranties of the Company and the
General Partner contained in the Financing Documents (other than this
Agreement) and those otherwise made in writing by or on behalf of the
Company or the General Partner pursuant to such Financing Documents
were true and correct when made and shall continue to be true and
correct (unless stated to relate to a specific earlier date, in which
case such representations and warranties shall be true and correct as
of such earlier date).
Section 8W. Labor Matters. Except as set forth in Schedule 8W,
(i) neither the Company nor any of its Subsidiaries is a party to any
collective bargaining agreement or other contracts with a labor union
or labor organization; and (ii) to the knowledge of the Company, there
is no (1) unfair labor practice, labor dispute (other than routine
individual grievances) or labor arbitration proceeding pending or
threatened against the Company or its Subsidiaries, which, in the
aggregate, could reasonably be expected to have a Material Adverse
Effect, (2) activity or proceeding by a labor union or representative
thereof to organize any employees of the Company or any of its
Subsidiaries, (3) lockout, strike, slowdown, work stoppage or threat
thereof by or with respect to any such employees or (4) material
dispute, grievance or litigation relating to labor matters involving
any employee. Each of the Company and its Subsidiaries is in compliance
with all Applicable Laws regarding employment, employment practices,
terms and conditions of employment and wages, except for such
noncompliance which, in the aggregate, could not reasonably be expected
to have a Material Adverse Effect."
ARTICLE III
AMENDMENTS TO OUTSTANDING 1997 AGREEMENT
III-A. Section 4C(iv) of the Outstanding 1997 Agreement is hereby
amended by inserting the phrase "or 4C(ii)" immediately following the phrase
"pursuant to Section 4C(i)".
III-B. Subsection (x) of Section 4E of the Outstanding 1997 Agreement
is hereby amended by deleting the phrase "Default nor an Event of Default" and
inserting in lieu thereof the phrase "Default, an Event of Default nor a Debt
Rating Event."
-10-
<PAGE> 11
III-C. Subsection (y) of Section 4E of the Outstanding 1997 Agreement
is hereby amended by deleting the phrase "Default or an Event of Default" and
inserting in lieu thereof the phrase "Default, an Event of Default or a Debt
Rating Event."
III-D. Section 5A(xi) of the Outstanding 1997 Agreement is hereby
amended by deleting the reference to "3L" and inserting in lieu thereof the
reference to "3K".
III-E. Section 6C(viii) of the Outstanding 1997 Agreement is hereby
amended to (x) insert the phrase "after June 25, 1996" immediately following the
phrase "(viii) Liens created" and (y) to delete the phrase "after the Initial
Closing Date" immediately following the phrase "constructed by the Company or
any of its Subsidiaries".
III-F. Section 8U of the Outstanding 1997 Agreement is hereby amended
by inserting the phrase "except for the Amendment Agreement to the Intercreditor
Agreement dated as of October 15, 1999," immediately following the phrase "to
the best knowledge of the Company".
III-G. Section 8V of the Outstanding 1997 Agreement is hereby amended
by inserting the phrase "and shall continue to be true and correct (unless
stated to relate to a specific earlier date, in which case such representations
and warranties shall be true and correct as of such earlier date)" immediately
following the phrase "were true and correct when made".
III-H. Section 8 of the Outstanding 1997 Agreement is hereby amended by
adding the following new Section 8W immediately following Section 8V thereof:
"Section 8W. Labor Matters. Except as set forth in Schedule
8W, (i) neither the Company nor any of its Subsidiaries is a party to
any collective bargaining agreement or other contracts with a labor
union or labor organization; and (ii) to the knowledge of the Company,
there is no (1) unfair labor practice, labor dispute (other than
routine individual grievances) or labor arbitration proceeding pending
or threatened against the Company or its Subsidiaries, which, in the
aggregate, could reasonably be expected to have a Material Adverse
Effect, (2) activity or proceeding by a labor union or representative
thereof to organize any employees of the Company or any of its
Subsidiaries, (3) lockout, strike, slowdown, work stoppage or threat
thereof by or with respect to any such employees or (4) material
dispute, grievance or litigation relating to labor matters involving
any employee. Each of the Company and its Subsidiaries is in compliance
with all Applicable Laws regarding employment, employment practices,
terms and conditions of employment and wages, except for such
noncompliance which, in the aggregate, could not reasonably be expected
to have a Material Adverse Effect."
III-I. Section 10B of the Outstanding 1997 Agreement is hereby amended
by inserting the definition of "Debt Rating Event" in the appropriate
alphabetical position:
""Debt Rating Event" shall mean, as of any date of
determination, (i) that the Notes or the 1996 Senior Secured Notes are
rated less than BBB- by Fitch, Inc. (or comparably if the rating system
is changed), and (ii) in the event
-11-
<PAGE> 12
that Fitch, Inc. shall no longer rate the Notes or the 1996 Senior
Secured Notes, that the Notes or the 1996 Senior Secured Notes are no
longer rated "2" or better by the National Association of Insurance
Commissioners (NAIC)."
III-J. The Outstanding 1997 Agreement is hereby amended to delete the
form of Schedule 6C attached thereto and insert in lieu thereof the form of
Schedule 6C attached to this Fourth Amendment.
ARTICLE IV
CONDITIONS OF EFFECTIVENESS
The effectiveness of this Fourth Amendment Agreement is subject to the
satisfaction of the following conditions:
(a) the Required Holders under each of the Outstanding
Agreements shall have consented to this Fourth Amendment Agreement as
evidenced by their execution thereof; and
(b) the requisite percentage of lenders under the Credit
Agreement (the "Lenders") shall have agreed to all amendments necessary
to effect this Fourth Amendment Agreement 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 the financial or negative
covenants or events of default that 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; and
(c) materials reasonably satisfactory to the holders of the
Outstanding Notes shall have been delivered evidencing that the
Proposed Reorganization has become effective.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
In order to induce the holders of the Notes to enter into this Fourth
Amendment Agreement, the Company represents and warrants that (a) no Default or
Event of Default has occurred and is continuing; and (b) after giving effect to
this Fourth Amendment Agreement, no Event of Default shall have occurred.
The Company hereby agrees and covenants that within 10 Business Days
following the date that this Fourth Amendment Agreement becomes effective (i)
that it shall pay to each of the holders of the Outstanding Notes, an amendment
fee in an amount equal to .15% of the aggregate principal 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 that the Lenders
have received no amendment fees or other consideration greater than the
Amendment Fee and (ii) to the extent the Company has received a satisfactory
statement, that it shall pay all
-12-
<PAGE> 13
reasonable fees and expenses of counsel to the holders of the Outstanding Notes
incurred in connection with this Fourth Amendment Agreement.
ARTICLE VI
MISCELLANEOUS
VI-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 IV above.
VI-B. This Fourth 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
Fourth Amendment Agreement.
VI-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.
VI-D. Upon the effectiveness of this Fourth 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 referenced to such Outstanding Agreement as
amended hereby.
-13-
<PAGE> 14
Very truly yours,
HERITAGE OPERATING, L.P.
By: Heritage Holdings, Inc., General Partner
By:
-----------------------------------------
Its:
----------------------------------------
-14-
<PAGE> 15
The foregoing Fourth Amendment Agreement and the amendments referred to
therein are hereby accepted and agree to as of August 10, 2000, and the
undersigned hereby confirms that on August 10, 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 Financial Services,
Inc.), and not in its individual capacity
By:
--------------------------------
Its:
-------------------------------
THE NORTHERN TRUST COMPANY, solely in
its capacity as Trustee of the Lucent Technologies Inc.
Master Pension Trust, and not in its individual capacity
By: John Hancock Life Insurance Company,
as Investment Manager
By:
--------------------------------
Its:
-------------------------------
<PAGE> 16
The foregoing Fourth Amendment Agreement and the amendments referred to
therein are hereby accepted and agree to as of August 10, 2000, and the
undersigned hereby confirms that on August 10, 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:
-------------------------------
<PAGE> 17
The foregoing Fourth Amendment Agreement and the amendments referred to
therein are hereby accepted and agree to as of August 10, 2000, and the
undersigned hereby confirms that on August 10, 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
(fka Principal Mutual Life Insurance Company)
By: Principal Capital Management, LLC,
its authorized signatory
By:
--------------------------------
Its:
-------------------------------
By:
--------------------------------
Its:
-------------------------------
<PAGE> 18
The foregoing Fourth Amendment Agreement and the amendments referred to
therein are hereby accepted and agree to as of August 10, 2000, and the
undersigned hereby confirms that on August 10, 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 Insurance Company
By:
--------------------------------
Its:
-------------------------------
<PAGE> 19
The foregoing Fourth Amendment Agreement and the amendments referred to
therein are hereby accepted and agree to as of August 10, 2000, and the
undersigned hereby confirms that on August 10, 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:
-------------------------------
<PAGE> 20
The foregoing Fourth Amendment Agreement and the amendments referred to
therein are hereby accepted and agree to as of August 10, 2000, and the
undersigned hereby confirms that on August 10, 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:
------------------------------------------
<PAGE> 21
The foregoing Fourth Amendment Agreement and the amendments referred to
therein are hereby accepted and agree to as of August 10, 2000, and the
undersigned hereby confirms that on August 10, 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:
-------------------------------
<PAGE> 22
The foregoing Fourth Amendment Agreement and the amendments referred to
therein are hereby accepted and agree to as of August 10, 2000, and the
undersigned hereby confirms that on August 10, 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:
-------------------------------
<PAGE> 23
The foregoing Fourth Amendment Agreement and the amendments referred to
therein are hereby accepted and agree to as of August 10, 2000, and the
undersigned hereby confirms that on August 10, 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:
-------------------------------
<PAGE> 24
The foregoing Fourth Amendment Agreement and the amendments referred to
therein are hereby accepted and agree to as of August 10, 2000, and the
undersigned hereby confirms that on August 10, 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:
-------------------------------
<PAGE> 25
The foregoing Fourth Amendment Agreement and the amendments referred to
therein are hereby accepted and agree to as of August 10, 2000, and the
undersigned hereby confirms that on August 10, 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
(f/k/a Wisconsin National Life Insurance Company)
By:
--------------------------------------------
Its:
-------------------------------------------
<PAGE> 26
The foregoing Fourth Amendment Agreement and the amendments referred to
therein are hereby accepted and agree to as of August 10, 2000, and the
undersigned hereby confirms that on August 10, 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:
-------------------------------
By:
--------------------------------
Its:
-------------------------------
<PAGE> 27
The foregoing Fourth Amendment Agreement and the amendments referred to
therein are hereby accepted and agree to as of August 10, 2000, and the
undersigned hereby confirms that on August 10, 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:
--------------------------------
Its:
-------------------------------
By:
--------------------------------
Its:
-------------------------------
<PAGE> 28
The foregoing Fourth Amendment Agreement and the amendments referred to
therein are hereby accepted and agree to as of August 10, 2000, and the
undersigned hereby confirms that on August 10, 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:
---------------------------------------
<PAGE> 29
SCHEDULE 1
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT AND
SERIES OF OUTSTANDING
NAME OF HOLDER NOTES HELD AS OF
OF OUTSTANDING NOTES AUGUST 10, 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 for the Long-Term $960,000 1996 Notes
Investment Trust (as directed by John Hancock
Life Insurance Company)
The Northern Trust Company, as Trustee $2,040,000 1996 Notes
of the Lucent Technologies, Inc. Master
Pension Trust
Massachusetts Mutual Life Insurance Company $15,000,0000 1996 Notes
Principal Life Insurance Company (f/k/a $15,000,000 1996 Notes
Principal Mutual Life Insurance Company)
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 $10,000,0000 1996 Notes
J. Romeo & Co. $3,500,0000 1996 Notes
J. Romeo & Co. $4,000,0000 1996 Notes
Pacific Life Insurance Company (f/k/a Pacific $5,500,000 1996 Notes
Mutual Life Insurance Company)
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> 30
<TABLE>
<S> <C>
Allstate Life Insurance Company $2,000,000 1996 Notes
Protective Life Insurance Company (f/k/a $3,000,000 1996 Notes
Wisconsin National Life Insurance Company)
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 $7,000,000 Series B Notes
Annuity Corporation
Allstate Life Insurance Company $4,285,714.29 Series C Notes
Chubb Life Insurance Company $5,000,000 Series D Notes
of America
J. Romeo & Co. $5,000,000 Series E Notes
</TABLE>
<PAGE> 31
SCHEDULE 6C
LIENS
None.
<PAGE> 32
SCHEDULE 8W
LABOR MATTERS
1. Collective Bargaining Agreement between PNG Propane Company and Green's
Fuel Company, Divisions of Piedmont Natural Gas Company, Inc. and Local
1902, International Brotherhood of Electrical Workers.
2. Labor Agreement between Peoples Gas and International Brotherhood of
Electrical Workers, Local 2072, of Miami, Lakeland, Daytona Beach and
Eustis, Florida.
Upon consummation of the U.S. Propane Acquisition, the Company believes that
neither it nor Subsidiaries will be subject to the above referenced Agreements.
