<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM T-3
FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES
UNDER THE TRUST INDENTURE ACT OF 1939
PETROLEUM HEAT AND POWER CO., INC.
----------------------------------
(Name of Applicant)
2187 Atlantic Street
Stamford, CT 06902
--------------------------
(Address of Principal Executive Offices)
SECURITIES TO BE ISSUED UNDER THE INDENTURE TO BE QUALIFIED
TITLE AMOUNT
----- ------
9 3/8% Senior Subordinated $75,000,000
Debentures due 2006
Approximate date of proposed issuance: September 24, 1998
Name and address of agent for service:
Irik P. Sevin
Chairman and Chief Executive Officer
Petroleum Heat and Power Co., Inc.
2187 Atlantic Street
Stamford, CT 06902
(203) 325-5400
With a copy to:
Alan Shapiro, Esq.
Phillips Nizer Benjamin Krim & Ballon LLP
666 Fifth Avenue
New York, NY 10103
(212) 977-9700
The Company hereby amends this application for qualification on such date
or dates as may be necessary to delay its effectiveness until (i) the 20th day
after the filing of a further amendment, which specifically states that it shall
supersede this amendment, or (ii) such date as the Securities and Exchange
Commission, acting pursuant to Section 307(c) of the Act, may determine upon the
written request of the applicant.
<PAGE>
GENERAL
1. General information.
(a) Form of organization: Corporation.
(b) State or other sovereign power under the laws of which organized:
Minnesota
2. Securities Act exemption applicable. Petroleum Heat and Power Co., Inc., a
Delaware corporation (the "Company"), is relying upon the exemption from
the registration requirements of the Securities Act of 1933, as amended
(the "Securities Act"), provided by Section 3(a)(9) thereunder, in
connection with the Company's exchange offer as described herein (the
"Exchange Offer"). The Exchange Offer is being made by the Company
pursuant to its Offering Circular dated August 26, 1998 ("Offering
Circular"), and the related Letter of Transmittal and Notice of Guaranteed
Delivery of even date therewith, and consists of an offer to exchange up
to $75,000,000 of the Company's 9 3/8% Senior Subordinated Debentures due
2006 (the "New Notes") for the Company's outstanding $75,000,000 9 3/8%
Subordinated Debentures due 2006 (the "Old Notes").
There have not been any sales of securities of the same class as the
New Notes or the Old Notes by the Company, nor are there any such other
sales planned, by or through an underwriter at or about the time of the
Exchange Offer transaction.
The Company retained a financial advisor (the "Advisor") to advise
the Company as to the structure, process and financial matters related to
the Exchange Offer. The Advisor's services to the Company are limited
solely to such advisory services, and the Advisor will not, directly or
indirectly, solicit the exchange of Old Notes for New Notes under the
Exchange Offer or otherwise make recommendations with respect to
acceptance or rejection of the Exchange Offer. In exchange for such
advisory services, the Advisor will be paid a flat fee. The fee will not
be based upon the level of participation in the Exchange Offer. The
Advisor will not be paid any commission or similar variable type of
remuneration.
The Company also retained an information agent (the "Information
Agent") and an exchange agent (the "Exchange Agent") in connection with
the Exchange Offer. The Information Agent and Exchange Agent will provide
to holders of Old Notes only information otherwise contained in the
Offering Circular and general information regarding the mechanics of the
exchange process. The Exchange Agent will provide the actual acceptance
and exchange services with respect to the exchange of Old Notes and New
Notes. Neither the Information Agent nor the Exchange Agent will solicit
exchanges in connection with the Exchange Offer or make recommendations as
to the acceptance or rejection of the Exchange Offer. Both the Information
Agent and Exchange Agent will be paid reasonable fees directly by the
Company for their services.
Consideration in the form of 3.37 shares of the Company's 1998
Junior Convertible Preferred Stock for each $1,000 in principal amount of
Old Notes tendered by the holders thereof and not withdrawn and whose Old
Notes are accepted for exchange by the Company, will be issued by the
Company to such holders. Holders that do not tender Old Notes are not
eligible to receive such consideration.
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There are no cash payments made or to be made by any holder of the
outstanding Old Notes in connection with the Exchange Offer.
AFFILIATION
3. Affiliates. Furnish a list or diagram of all affiliates of the Company and
indicate the respective percentages of voting securities or other bases of
control.
Below is a list of direct and indirect subsidiaries of the Company
as of June 30, 1998, unless otherwise indicated all of the subsidiaries
are wholly-owned. The names of certain subsidiaries, which if considered
in the aggregate as a single subsidiary would not constitute a significant
subsidiary, are omitted.
Petroleum Heat and Power Co., Inc. (Minnesota)
A. Ortep of Connecticut, Inc. (Connecticut)
B. Ortep of New Jersey, Inc. (New Jersey)
C. Ortep of New York, Inc. (New York)
D. Ortep of Pennsylvania, Inc. (Pennsylvania)
E. Occenet Fuel Corp. (Connecticut)
F. Petro, Inc. (Delaware)
(1) Public Fuel Service Co., Inc. (New York)
(2) Marex Corporation (Maryland)
(3) A.P. Woodson Co. (District of Columbia)
G. Star Gas Corporation (Delaware)*
H. Maxwhale Corp. (Minnesota)
I. CBW Realty Corp. of Connecticut (Connecticut)
J. Star Gas Holdings, Inc. (Delaware)
K. Petrol Crystal Corp. (Delaware)
MANAGEMENT AND CONTROL
4. Directors and executive officers. List the names and complete mailing
addresses of all directors and executive officers of the applicant and all
persons chosen to become directors and executive officers. Indicate all
offices which the applicant held or to be held by the person named.
The address for each director and executive officer named below is 2187
Atlantic Avenue, Stamford, Connecticut 06902.
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* Star Gas Corporation ("Star Gas") is the sole general partner of Star
Gas Partners, L.P., a Delaware limited partnership, (the "Partnership") and Star
Gas Propane, L.P., a Delaware limited partnership (the "Operating Partnership").
Star Gas owns a combined 2% general partner interest in the Partnership and the
Operating Partnership and a 40.66% equity interest in the Partnership. Stellar
Propane Corp. (New York) is a wholly-owned subsidiary of the Operating
Partnership. The Exchange Offer is being effected in connection with a proposed
strategic business combination (the "Star Gas Transaction") in which the Company
would become a wholly-owned indirect subsidiary of the Partnership.
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Name Office
- ---- ------
Paul Biddleman Director
Paul Ean Cohen Director
Thomas J. Edelman Director
Stephen Russell Director
Wolfgang Traber Director
Audrey L. Sevin Secretary and Director
Irik P. Sevin Chairman of the Board, Chief Executive
Officer and Director
William G. Powers President
C. Justin McCarthy Senior Vice President - Operations
George Leibowitz Treasurer
Vincent DePalma Vice President and General Manager - New
York Region
James J. Bottiglieri Vice President and Controller
Matthew J. Ryan Vice President - Supply
Angelo Catania Vice President and General Manager - Mid-
Atlantic Region
Peter B. Terenzio, Jr. Vice President - Human Resources
5. Principal owners of voting securities. Furnish the following information
as to each person owning 10 percent or more of the voting securities of
the applicant.
The table below sets forth, as of August 12, 1998, the number of shares
beneficially owned by each beneficial owner of 10% or more of the outstanding
Class A Common Stock and Class C Common Stock, par value $.10 per share, the
only voting securities of the applicant:
<TABLE>
<CAPTION>
Amount Owned(1) Percentage of Voting Securities Owned
---------------------- -------------------------------------
Name and Complete Mailing Address Class A Class C Class A Class C
- --------------------------------- ------- ------- ------- -------
<S> <C> <C> <C> <C>
Wolfgang Traber(2)................ 1,777,279(3) 606,472(4) 7.42% 23.35%
Paul Biddleman(2)................. 1,779,665(3) 597,435(4) 7.43 23.00
Hubertus Langen(5)................ 731,473 606,472(4) 3.05 23.35
Audrey L. Sevin(6)................ 1,876,863 477,716 7.84 18.39
Schneider Capital Management(7)... 4,438,344 -- 18.52 --
Frank Russell Company(8).......... 2,589,873 -- 10.81 --
Richard O'Connell(9).............. 1,128,745 302,461 4.71 11.64
Irik Sevin(6)(10)................. 912,438 219,641 3.78 8.40
</TABLE>
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(1) For purposes of this table, a person or group is deemed to have
"beneficial ownership" of any shares which such person has the right to
acquire within 60 days after August 12, 1998. For purposes of calculating
the percentage of outstanding shares held by each person named above, any
shares which such person has the right to acquire within 60 days after
August 12, 1998 are deemed to be outstanding, but not for the purpose of
calculating the percentage ownership of any other person.
(2) The address of such person is 450 Park Avenue, New York, NY 10022.
(3) Includes 1,777,279 shares held by Hanseatic Americas LDC, a Bahamian
limited duration company, in which the sole managing member is Hansabel
Partners, LLC, a Delaware limited liability company in which the sole
managing member is Hanseatic Corporation, a New York corporation
("Hanseatic"). Messrs. Traber and Biddelman are executive officers of
Hanseatic and Mr. Traber holds in excess of a majority of the shares of
capital stock of Hanseatic.
(4) Includes 298,717 shares owned by each of Hanseatic and Tortosa
Vermogensverwaltungsgesellschaft mbH ("Tortosa"), a German corporation
owned and controlled by Mr. Langen, and as to which Hanseatic and Tortosa
each hold shared voting power.
(5) The address of such person is Heinrich-Vogl-Strasse 17, 81479, Munich,
Germany.
(6) The address of such person is c/o the Company at P.O. Box 1457, Stamford,
CT 06904.
(7) The address of this company is 460 E. Swedesford Road, Suite 1080, Wayne,
Pennsylvania 19087-1801. Schneider Capital Management may be deemed to
have beneficial ownership of 4,438,344 shares over which it has
dispositive power and as to which it has sole voting power over 2,494,509
shares, the Frank Russell Company has sole voting power over 1,943,835
shares.
(8) The address of this company is 909 A Street, Tacoma, WA 98402. The Frank
Russell Company is the parent company of a number of funds that hold the
Company's Class A Common Stock, which according to a report on Schedule
13F for the period ended March 31, 1998 amounted to 2,589,873 shares over
which it had sole voting power, including 1,943,835 shares as to which the
Frank Russell Company shares beneficial ownership with Schneider Capital
Management.
(9) The address of such person is 31 rue de Bellechasse, 75007, Paris, France.
(10) Includes options to purchase 172,000 shares of Class A Common Stock and
18,000 shares of Class C Common Stock.
Following the completion of the Star Gas Transaction, the Company would become a
wholly-owned indirect subsidiary of the Partnership.
UNDERWRITERS
6. Underwriters. Give the name and complete mailing address of (a) each
person who, within three years prior to the date of filing the
application, acted as an underwriter of any securities of the obligor
which were outstanding on the date of filing the application, and (b) each
proposed principal underwriter of the securities proposed to be offered.
As to each person specified in (a), give the title of each class of
securities underwritten.
(a) The following was the underwriter in the Company's issuance in
February 1997 of 1,200,000 shares of 12 7/8% Series A Exchangeable
Preferred Stock Due 2009.
Donaldson, Lufkin & Jenrette Securities Corporation
227 Park Avenue
New York, New York 10172
(b) There are no underwriters of the securities proposed to be offered
in the Exchange Offer.
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CAPITAL SECURITIES
7. Capitalization. (a) Furnish the following information as to each
authorized class of securities of the applicant.
(i) Equity Securities (as of August 12, 1998)
Title of Class Amount Authorized Amount Outstanding
-------------- ----------------- ------------------
Class A Common Stock, 60,000,000 shares 23,964,960 shares
$.10 par value
Class B Common Stock, 6,500,000 shares 11,228 shares
$.10 par value
Class C Common Stock, 5,000,000 shares 2,597,519 shares
$.10 par value
Cumulative Redeemable 250,000 shares 41,670 shares
Preferred Stock,
$.10 par value
12 7/8% Series B Exchangeable 2,000,000 shares 1,200,000 shares
Preferred Stock due 2009,
$.10 par value
(i) Debt Securities (as of August 12, 1998) (in millions)
Title of Class Amount Authorized Amount Outstanding
-------------- ----------------- ------------------
11.85% Series A Senior Notes due 2002 $ 40,000,000 $40,000,000
12.17% Series B Senior Notes due 2002 15,000,000 15,000,000
12.18% Series C Senior Note due 2002 5,000,000 5,000,000
14.10% Senior Notes due 2001 6,250,000 3,100,000
14.10% Subordinated Notes due 2001 6,250,000 3,100,000
10 1/8% Subordinated Notes due 2003 50,000,000 50,000,000
12 1/4% Subordinated Debentures due 2005 125,000,000 81,250,000
9 3/8% Subordinated Debentures due 2006 75,000,000 75,000,000
The holders of Class A Common Stock are entitled to one vote per share and
the holders of Class C Common Stock are entitled to 10 votes per share upon all
matters submitted for a vote to the shareholders of the Company. Except when
required by Minnesota law and in certain special circumstances described in the
Restated Articles of Incorporation, the holders of Class B Common Stock are not
entitled to vote. Generally, the action of the majority of the votes evidenced
by the shares of all classes voting as a single class
- 6 -
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represented at a meeting of the shareholders and entitled to vote is sufficient
for actions that require a vote of shareholders. The Restated and Amended
Articles of Incorporation of the Company do not provide for cumulative voting.
INDENTURE SECURITIES
8. Analysis of indenture provisions. Insert at this point the analysis of
indenture provisions required under Section 305(a)(2) of the Trust
Indenture Act of 1939, as amended.
For purposes of this Section 8, the "Indenture" refers to the Indenture
dated as of _____________, 1998 between the Company and The Chase
Manhattan Bank, as Trustee (the "Trustee"). Other capitalized terms used
in Section 8 are defined in the Indenture or the Offering Circular.
A. EVENTS OF DEFAULT
The following are Events of Default under the Indenture with respect
to the New Notes: (1) default in the payment of interest on any New Note
when due, continued for 30 days; (2) default in the payment of principal
of any New Note when due or failure to redeem or purchase any New Note
when required by the Indenture or the New Notes; (3) failure to comply
with breach of any agreement of the Company in the Indenture or the New
Notes, continued for 30 days after written notice as provided in the
Indenture; (4) the acceleration or failure to pay at maturity (including
any applicable grace period) any Debt of the Company or a Significant
Subsidiary exceeding $1,000,000 in principal amount; (5) certain events in
bankruptcy, insolvency or reorganization in respect of the Company or a
Significant Subsidiary; or (6) a judgment for the payment of money in
excess of $1,000,000 is entered against the Company or a Significant
Subsidiary and is not discharged and either (a) an enforcement action is
commenced by a creditor on such judgment or (b) during the 60 day period
following entry of such judgment, such judgment is not discharged or
waived or execution thereof is not stayed and such default, in the case of
(b), is continued for 10 days after notice as provided in the Indenture.
If an Event of Default (other than Event of Default specified in
clause (5) with respect to the New Notes occurs and is continuing, either
the Trustee or the Holders of at least 25 percent in principal amount of
the New Notes may declare the principal amount of all New Notes to be due
and payable immediately. If an Event of Default specified in clause (5)
above occurs, the principal amount of full New Notes will ipso facto
become immediately due and payable. At any time after a declaration of
acceleration with respect to the New Notes has been made, but before a
judgment or decree based on acceleration has been obtained, the Holders of
a majority in principal amount of the New Notes may, under certain
circumstances, rescind and annul such acceleration.
B. AUTHENTICATION AND DELIVERY
The New Notes shall be executed on behalf of the Company by two
officers by manual or facsimile signatures, under the Company's corporate
seal imprinted or reproduced thereon. Upon delivery of New Notes so
executed to the Trustee for authentication, upon a written order of the
Company signed by two officers or an officer and an Assistant Secretary or
an Assistant Treasurer of
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the Company, the Trustee shall authenticate and deliver the New Notes. The
Indenture does not contain provisions regarding the application of the
proceeds from issuance of the New Notes.
C. RELEASE OF PROPERTY SUBJECT TO LIEN
The Company's obligations under the New Notes are not secured by any
liens or security interests on any assets of the Company. Therefore, the
Indenture does not contain any provisions with respect to the release or
the release and substitution of any property subject to such a lien.
D. SATISFACTION AND DISCHARGE
The Indenture shall cease to be of further effect and shall be
discharged as to the New Notes after certain actions are taken, when (1)
either: (i) all of the New Notes have been delivered to the Trustee for
cancellation, or (ii) all New Notes have become due and payable and the
Company has irrevocably deposited with the Trustee funds sufficient to pay
at maturity all of the New Notes and (2) the Company has paid all other
sums required to be paid under the Indenture.
E. EVIDENCE OF COMPLIANCE WITH CONDITIONS AND COVENANTS
The Company is required by the Indenture to deliver to the Trustee,
within 120 days after the end of each of the Company's fiscal years, an
Officer's Certificate stating whether or not, to the best knowledge of the
signers thereof, the Company is in default in the performance and
observance of certain terms of the Indenture, and, if there is such a
default, specifying the nature and status of such default.
9. Other Obligors. Give the name and complete mailing address of any person,
other than the applicant, who is an obligor upon the indenture securities.
No person, other than the Company, is an obligor with respect to the New
Notes.
Contents of Application For Qualification. This application for
qualification comprises:
(a) Pages numbered one to ten, consecutively;
(b) The statement of eligibility and qualification of the Trustee under
the Indenture to be qualified (on Form T-1 incorporated herein by
reference to Exhibit 99 attached hereto);
(c) The following exhibits, in addition to those filed as a part of the
statement of eligibility and qualification of the Trustee:
(i) Exhibit T3A -- The Company's Restated and Amended Articles of
Incorporation, as amended, and Articles of Amendment (filed as
Exhibit 3.1 to Registration Statement on Form S-1, File No.
33-48051 and incorporated herein by reference).
(ii) Exhibit T3B -- The Company's Restated Bylaws (filed as Exhibit
3.2 to Registration Statement Form S-1, File No. 33-48051 and
incorporated herein by reference).
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(iii) Exhibit T3C -- Form of Indenture, dated as of _______, 1998
between the Company and The Chase Manhattan Bank, as Trustee.*
(iv) Exhibit T3D -- Not applicable;
(v) Exhibit T3E.1 -- Form of Offering Circular, dated as of
August 26, 1998;*
(vi) Exhibit T3E.2 -- Form of Letter of Transmittal, dated as of
August 26, 1998;*
(vii) Exhibit T3E.3 -- Form of Notice of Guaranteed Delivery, dated
as of August 26, 1998;*
(viii) Exhibit T3E.4 -- Form of Letter to Beneficial Owners, dated as
of August 26, 1998;*
(ix) Exhibit T3E.5 -- Form of Letter to DTC Participants, dated as
of August 26, 1998;*
(x) Exhibit T3E.6 -- Form of Letter to Clients, dated as of
August 26, 1998;*
(xi) Exhibit T3F - - Cross-Reference Sheet;**
(xii) Exhibit 99 -- Form T-l of The Chase Manhattan Bank.**
----------
* Filed herewith
** Previously filed
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SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Applicant, Petroleum Heat and Power Co., Inc., a corporation organized and
existing under the laws of the State of Minnesota, has duly caused this
application to be signed on its behalf by the undersigned, thereunto duly
authorized, and its seal to be hereunto affixed and attested, all in the City of
Stamford and Connecticut, on the 26th of August, 1998.
Petroleum Heat and Power Co., Inc.
By: /s/ Irik P. Sevin
----------------------------------
Irik P. Sevin
Chairman of the Board and
Chief Executive Officer
Attest: /s/ Alan Shapiro
----------------------------------
Assistant Secretary
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- --------------------------------------------------------------------------------
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DRAFT - 8/24/98
PETROLEUM HEAT AND POWER CO., INC.
9 3/8% Senior Subordinated Debentures Due 2006
--------------------------------------
INDENTURE
Dated as of ________ ____, 1998
--------------------------------------
The Chase Manhattan Bank,
Trustee
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TABLE OF CONTENTS
<TABLE>
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Page No.
<S> <C>
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE............................................................1
SECTION 1.01. Definitions......................................................................................1
SECTION 1.02. Other Definitions...............................................................................14
SECTION 1.03. Incorporation by Reference of Trust Indenture Act...............................................14
SECTION 1.04. Rules of Construction...........................................................................15
ARTICLE 2. THE DEBENTURES.......................................................................................16
SECTION 2.01. Form and Dating.................................................................................16
SECTION 2.02. Execution and Authentication....................................................................16
SECTION 2.03. Registrar and Paying Agent......................................................................16
SECTION 2.04. Paying Agent to Hold Money in Trust.............................................................17
SECTION 2.05. Debentureholder Lists...........................................................................17
SECTION 2.06. Transfer and Exchange...........................................................................17
SECTION 2.07. Replacement Debentures..........................................................................18
SECTION 2.08. Outstanding Debentures..........................................................................18
SECTION 2.09. Temporary Debentures............................................................................19
SECTION 2.10. Cancellation....................................................................................19
SECTION 2.11. Defaulted Interest..............................................................................19
ARTICLE 3. REDEMPTION...........................................................................................19
SECTION 3.01. Notices to Trustee..............................................................................19
SECTION 3.02. Selection of Debentures To Be Redeemed..........................................................20
SECTION 3.03. Notice of Redemption............................................................................20
SECTION 3.04. Effect of Notice of Redemption..................................................................21
SECTION 3.05. Deposit of Redemption Price.....................................................................22
SECTION 3.06. Debentures Redeemed in Part.....................................................................22
ARTICLE 4. COVENANTS............................................................................................22
SECTION 4.01. Payment of Debentures...........................................................................22
SECTION 4.02. SEC Reports.....................................................................................22
SECTION 4.03. Limitation on Funded Debt.......................................................................23
SECTION 4.04. Limitation on Indebtedness and Preferred Stock of Subsidiaries..................................24
SECTION 4.05. Limitation on Restricted Payments...............................................................24
SECTION 4.06. Limitations on Restrictions on Distributions from Subsidiaries..................................26
SECTION 4.07. Limitation on Transactions with Affiliates......................................................27
SECTION 4.08. Change of Control...............................................................................27
SECTION 4.09. Limitation on Liens on Subsidiary Stock.........................................................29
SECTION 4.10. Compliance Certificate..........................................................................29
SECTION 4.11. Further Instruments and Acts....................................................................29
</TABLE>
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Page No.
<S> <C>
ARTICLE 5. SUCCESSOR COMPANY....................................................................................29
SECTION 5.01. When Company May Merge or Transfer Assets.......................................................30
ARTICLE 6. DEFAULTS AND REMEDIES................................................................................30
SECTION 6.01. Events of Default...............................................................................30
SECTION 6.02. Acceleration....................................................................................32
SECTION 6.03. Other Remedies..................................................................................32
SECTION 6.04. Waiver of Past Defaults.........................................................................33
SECTION 6.05. Control by Majority.............................................................................33
SECTION 6.06. Limitation on Suits.............................................................................33
SECTION 6.07. Rights of Holders To Receive Payment............................................................33
SECTION 6.08. Collection Suit by Trustee......................................................................34
SECTION 6.09. Trustee May File Proofs of Claim................................................................34
SECTION 6.10. Priorities......................................................................................34
SECTION 6.11. Undertaking for Costs...........................................................................34
SECTION 6.12. Waiver of Stay or Extension Laws................................................................35
ARTICLE 7. TRUSTEE..............................................................................................35
SECTION 7.01. Duties of Trustee...............................................................................35
SECTION 7.02. Rights of Trustee...............................................................................36
SECTION 7.03. Individual Rights of Trustee....................................................................36
SECTION 7.04. Trustee's Disclaimer............................................................................37
SECTION 7.05. Notice of Defaults..............................................................................37
SECTION 7.06. Reports by Trustee to Holders...................................................................37
SECTION 7.07. Compensation and Indemnity......................................................................37
SECTION 7.08. Replacement of Trustee..........................................................................38
SECTION 7.09. Successor Trustee by Merger.....................................................................39
SECTION 7.10. Eligibility; Disqualification...................................................................39
SECTION 7.11. Preferential Collection of Claims Against Company...............................................39
ARTICLE 8. DISCHARGE OF INDENTURE; DEFEASANCE...................................................................39
SECTION 8.01. Discharge of Liability on Debentures: Defeasance................................................39
SECTION 8.02. Conditions to Defeasance........................................................................40
SECTION 8.03. Application of Trust Money......................................................................41
SECTION 8.04. Repayment to the Company........................................................................42
SECTION 8.05. Indemnity for Government Obligations............................................................42
SECTION 8.06. Reinstatement...................................................................................42
ARTICLE 9. AMENDMENTS...........................................................................................42
SECTION 9.01. Without Consent of Holders......................................................................42
SECTION 9.02. With Consent of Holders.........................................................................43
SECTION 9.03. Compliance with Trust indenture Act.............................................................44
SECTION 9.04. Revocation and Effect of Consents and Waivers...................................................44
SECTION 9.05. Notation on or Exchange of Debentures...........................................................45
</TABLE>
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<S> <C>
SECTION 9.06. Trustee to Sign Amendments......................................................................45
SECTION 9.07. Payment for Consent.............................................................................45
ARTICLE 10. SUBORDINATION.......................................................................................45
SECTION 10.01. Agreement to Subordinate.......................................................................45
SECTION 10.02. Liquidation, Dissolution, Bankruptcy...........................................................45
SECTION 10.03. Default on Senior Debt.........................................................................46
SECTION 10.04. Acceleration of Payment of Debentures..........................................................47
SECTION 10.05. When Distribution Must Be Paid Over............................................................47
SECTION 10.06. Subrogation....................................................................................47
SECTION 10.07. Relative Rights................................................................................47
SECTION 10.08. Subordination May Not Be Impaired by Company...................................................47
SECTION 10.09. Rights of Trustee and Paying Agent.............................................................47
SECTION 10.10. Distribution or Notice to Representative.......................................................48
SECTION 10.11. Article 10 Not to Prevent Events of Default or Limit Right to Accelerate.......................48
SECTION 10.12. Trust Moneys Not Subordinated..................................................................48
SECTION 10.13. Trustee Entitled To Rely.......................................................................48
SECTION 10.14. Trustee To Effectuate Subordination............................................................49
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior Debt...............................................49
SECTION 10.16. Reliance by Holders of Senior Debt on Subordination Provisions.................................49
ARTICLE 11. MISCELLANEOUS.......................................................................................49
SECTION 11.01. Trust Indenture Act Controls...................................................................49
SECTION 11.02. Notices........................................................................................49
SECTION 11.03. Communication by Holders with Other Holders....................................................50
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.............................................50
SECTION 11.05. Statements Required in Certificate or Opinion..................................................51
SECTION 11.06. When Debentures Disregarded....................................................................51
SECTION 11.07. Rules by Trustee, Paying Agent and Registrar...................................................51
SECTION 11.08. Governing Law..................................................................................51
SECTION 11.09. No Recourse Against Others.....................................................................51
SECTION 11.10. Successors.....................................................................................52
SECTION 11.11. Multiple Originals.............................................................................52
SECTION 11.12. Table of Contents; Headings....................................................................52
Exhibit A - Form of Debenture
Exhibit B - Press Release
</TABLE>
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INDENTURE dated as of __________ _____, 1998 between PETROLEUM
HEAT AND POWER CO., INC., a Minnesota corporation (the "Company"), and The Chase
Manhattan Bank a New York banking corporation (the "Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Company's 9
3/8% Senior Subordinated Debentures Due 2006 (the "Debentures"):
ARTICLE 1.
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"Affiliate" of any Person specified means (i) any Person
directly or indirectly controlling or under direct or indirect common control
with such specified Person; (ii) any spouse, immediate family member or other
relative who has the same principal residence as any Person described in clause
(i) above; (iii) any trust in which any Persons described in clause (i) or (ii)
above has a beneficial interest and (iv) in the case of the Company, any
Unrestricted Subsidiary of the Company. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, a contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, teases, transfers or dispositions) of
shares of Capital Stock of a Subsidiary (other than directors' qualifying
shares), property or other assets (each referred to for the purposes of this
definition as a "disposition") by the Company or any of its Subsidiaries
(including any disposition by means of a merger, consolidation or similar
transaction) other than (i) a disposition by a Subsidiary to the Company or by
the Company or a Subsidiary to a Wholly Owned Subsidiary, (ii) a disposition of
property or assets at fair market value in the ordinary course of business or
(iii) a disposition of obsolete assets in the ordinary course of business.
"Attributable Indebtedness" in respect of a Sale/Leaseback
Transaction means, as of the time of determination, the present value
(discounted at the interest rare borne by the Debentures, compounded annually)
of the total obligations of the lessee for rental payments during the remaining
term of the lease included in such Sale/Leaseback Transaction (including any
period for which such lease has been extended).
"Average Life" means, as of the date of determination, with
respect to any Indebtedness or Preferred Stock, the quotient obtained by
dividing (i) the sum of the products of the numbers of years from the date of
determination to the dates of each successive scheduled principal payment of
such Indebtedness or redemption or similar payment with respect to such
Preferred Stock multiplied by the amount of such payment by (ii) the sum of all
such payments.
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"Bank Debt" means any and all amounts payable under or in
respect of the Credit Agreement, as amended from time to time, any Refinancing
Agreement, any Working Capital Financing Agreement or any other loan agreement
with a bank, including principal, premium (if any), interest (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company to the extent a claim for post-filing
interest is allowed in such proceedings). fees, charges, expenses, reimbursement
obligations, guarantees and all other amounts payable thereunder or in respect
thereof.
"Banks" has the meaning specified in the Credit Agreement.
"Board of Directors" means the Board of Directors of the
Company or any committee thereof duly authorized to act on behalf of such Board.
"Business Day" means each day which is not a Legal Holiday.
"Capital Lease Obligations" of a Person means any obligation
which is required to be classified and accounted for as a capital lease on the
face of a balance sheet of such Person prepared in accordance with generally
accepted accounting principles; the amount of such obligation shall be the
capitalized amount thereof, determined in accordance with generally accepted
accounting principles; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities convertible
into or exchangeable for such equity.
"Cash Flow" for a Person for any fiscal year, means the sum of
(i) the Consolidated Net Income of such Person for such fiscal year, plus (ii)
to the extent deducted in the calculation of such Consolidated Net Income, the
amortization of customer lists and other deferred charges and the amortization
and depreciation of capital assess, plus (iii) to the extent not included in
Consolidated Net Income, the amount of all dividends or other distributions
received in cash by the Company or any of its Wholly Owned Subsidiaries from,
and the amount of any Net Cash Proceeds to the Company or any of its Wholly
Owned Subsidiaries from the sale of Capital Stock of, an Unrestricted Subsidiary
of the Company; provided, however, that any amounts included in clause (v)(C) of
Section 4.05(b) shall be excluded from Cash Flow of the Company.
"Class B Cash Flow" for any fiscal year means the sum of (i)
net income of the Company and its consolidated subsidiaries for such fiscal year
determined in accordance with generally accepted accounting principles, plus
(ii) depreciation and amortization of plant and equipment and amortization of
customer lists and restrictive covenants of the Company and its consolidated
subsidiaries for such fiscal year determined in accordance with generally
accepted accounting principles; provided, however, that (a) the net income of
any Person other than a
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consolidated subsidiary in which the Company or any subsidiary has an
interest shall be included only to the extent of the amount of dividends or
other distributions paid to the Company or a consolidated subsidiary, (b) the
net income of any Person acquired in a pooling transaction shall be excluded for
any period prior to the date of acquisition and (c) Class B Cash Flow with
respect to a fiscal year shall never be less than zero.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor and, for
purposes of any provision contained herein and required by the TIA, each other
obligor on the Indenture securities.
"Consolidated EBITDA Coverage Ratio" as of any date of
determination means the ratio of (i) the aggregate amount of EBITDA for the
period of the most recent four consecutive fiscal quarters ending at least 45
days prior to the date of such determination to (ii) Consolidated Interest
Expense for such four fiscal quarter; provided, however, that (1) if the Company
or any Subsidiary has incurred any Indebtedness since the beginning of such
period that remains outstanding or if the transaction giving rise to the need to
calculate the Consolidated EBITDA Coverage Ratio is an incurrence of
Indebtedness, or both, EBITDA and Consolidated Interest Expense for such period
shall be calculated after giving effect on a pro forma basis to (A) such
Indebtedness as if such Indebtedness had been incurred on the first day of such
period, (B) the discharge of any other Indebtedness repaid, repurchased,
defeased or otherwise discharged with the proceeds of such new Indebtedness as
if such discharge had occurred on the first day of such period and (C) the
interest income realized by the Company and its Subsidiaries on the proceeds of
such Indebtedness, to the extent not yet applied at the date of determination,
assuming such proceeds earned interest at the Treasury Rate from the date such
proceeds were received through such date of determination, (2) if since the
beginning of such period the Company or any Subsidiary shall have made any Asset
Disposition, EBITDA for such period shall be reduced by an amount equal to
EBITDA (if positive) directly attributable to the assets which are the subject
of such Asset Disposition for such period, or increased by an amount equal to
EBITDA (if negative), directly attributable thereto for such period and
Consolidated Interest Expense for such period shall be reduced by an amount
equal to the Consolidated Interest Expense directly attributable to any
Indebtedness of the Company or any Subsidiary repaid, repurchased, defeased or
otherwise discharged with respect to the Company and its continuing Subsidiaries
in connection with such Asset Dispositions for such period (or, if the Capital
Stock of any Subsidiary is sold, the Consolidated Interest Expense for such
period directly attributable for the Indebtedness of such Subsidiary to the
extent the Company and its continuing Subsidiaries are no longer liable for such
Indebtedness after such sale) and (3) if since the beginning of such period the
Company or any Subsidiary (by merger or otherwise) shall have made an Investment
in any Subsidiary (or any Person which becomes a Subsidiary) or an acquisition
of assets, including any acquisition of assets occurring in connection with a
transaction causing a calculation to be made hereunder, which constitutes all or
substantially all of an operating unit of a business, EBITDA and Consolidated
Interest Expense for such period shall be calculated after giving pro forma
effect thereto (including the incurrence of any
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Indebtedness) as if such Investment or acquisition occurred on the first
day of such period. For purposes of this definition, whenever pro forma effect
is to be given to an acquisition of assets, the amount of income or earnings
relating thereto, and the amount of Consolidated Interest Expense associated
with any Indebtedness incurred in connection therewith, the pro forma
calculations shall be determined in good faith by a responsible financial or
accounting Officer of the Company; provided, however, that such Officer shall
assume (i) the historical sales and gross profit margins associated with such
assets for any consecutive 12-month period ended prior to the date of purchase
(provided that the first month of such period shall be no more than 18 months
prior to such date of purchase), less estimated post-acquisition loss of
customers (not to be less than 3%) and (ii) other expenses as if such assets had
been owned by the Company since the first day of such period. If any
Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest on such Indebtedness shall be calculated as if the rate in
effect on the date of determination had been the applicable rate for the entire
period.
"Consolidated Interest Expense" means, for any period, the
total interest expense of the Company and its Subsidiaries determined on a
consolidated basis, including (i) interest expense attributable to capital
leases, (ii) amortization of debt discount, (iii) capitalized interest, (iv)
non-cash interest expense, (v) commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers' acceptance financing, (vi)
interest actually paid by the Company or any such Subsidiary under any guarantee
of Indebtedness or other obligation of any other Person, (vii) net costs
associated with Hedging Obligations (including amortization of fees), (viii)
Preferred Stock dividends in respect of all Preferred Stock of Subsidiaries held
by persons other than the Company or a Wholly Owned Subsidiary, (ix) the cash
contributions to any employee stock ownership plan or similar trust to the
extent such contributions are used by such plan or trust to pay interest or fees
to any person (other than the Company) in connection with loans incurred by such
plan or trust to purchase newly issued or treasury shares of the Company (but
excluding interest expense associated with the accretion of principal on
non-interest bearing or other discount securities) and (x) to the extent not
already included in Consolidated Interest Expense, the interest expense
attributable to Indebtedness of another Person that is guaranteed by the Company
or any of its Subsidiaries, less interest income (exclusive of deferred
financing fees) of the Company and its Subsidiaries determined on a consolidated
basis in accordance with generally accepted accounting principles, provided,
however, that Consolidated Interest Expense shall include any interest paid by
the Company to Star Gas Corporation on Indebtedness owed to Star Gas Corporation
but only to the extent the amount of such interest paid during any period
exceeds the cash dividends or other cash distributions on the Capital Stock of
the Star Gas Corporation distributed to the Company or any Subsidiary during
such period.
"Consolidated Net Income" of a Person, for any period, means
the aggregate of the Net Income of such Person for such period, determined on a
consolidated basis in accordance with generally accepted accounting principles,
provided that:
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(i) the Net Income of any other Person (other than a
Subsidiary) in which such Person has an interest shall be
included only to the extent of dividends or distributions paid
to such Person,
(ii) the Net Income of any Person acquired by such
Person in a pooling of interests transaction for any period
prior to the date of such acquisition shall be excluded,
(iii) any Net Income of any Subsidiary shall be
excluded if such Subsidiary is subject to restrictions,
directly or indirectly, on the payment of dividends or the
making of distributions by such Subsidiary, directly or
indirectly, to such Person, except that (A) such Person's
equity in the Net Income of any such Subsidiary for such
period shall be included in such Consolidated Net Income up to
the aggregate amount of cash actually distributed by such
Subsidiary during such period to such Person as a dividend or
other distribution (subject, in the case of a dividend or
other distribution to another Subsidiary, to the limitation
contained in this clause) and (B) such Person's equity in a
net loss of any such Subsidiary for such period shall be
included in determining such Consolidated Net Income,
(iv) the cumulative effect of a change in
accounting principles shall be excluded; and
(v) notwithstanding clause (i), Consolidated Net
Income of the Company shall include cash dividends or other
cash distributions on the Capital Stock of Star Gas
Corporation distributed to the Company by Star Gas Corporation
but only to the extent such cash dividends or other cash
distributions exceed during any period the amount of any
interest paid by the Company during such period to Star Gas
Corporation on Indebtedness owed to Star Gas Corporation.
"Credit Agreement" means the Second Amended and Restated
Credit Agreement dated as of December 31, 1992, between the Company and Chemical
Bank, as agent, as amended from time to time.
"Debentures" means the Debentures issued under this Indenture.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Designated Senior Debt" means (i) the Bank Debt and (ii) any
other Senior Debt which, at the date of determination, has an aggregate
principal amount outstanding of, or commitments to lend up to, at least $10
million and is specifically designated by the Company in the instrument
evidencing or governing such Senior Debt as "Designated Senior Debt" for
purposes of this Indenture.
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"EBITDA" for any period means the Consolidated Net Income for
such period (but without giving effect to adjustments, accruals, deductions or
entries resulting from purchase accounting, extraordinary losses or gains and
any gains or losses from any Asset Dispositions), plus the following to the
extent deducted in calculating such Consolidated Net Income: (i) income tax
expense, (ii) Consolidated Interest Expense, (iii) depreciation expense, (iv)
amortization expense and (v) all other non-cash expenses.
"Exchange" means the exchange of each Share for 0.13064 Units
substantially in the form described in the Press Release attached hereto as
Exhibit B with such changes therein as shall not materially adversely affect the
rights of any Holder.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchangeable Stock" means any Capital Stock which is
exchangeable or convertible into another security (other than Capital Stock of
the Company which is neither Exchangeable Stock nor Redeemable Stock).
"Funded Debt" as applied to any Person means, without
duplication, (a) any Indebtedness with a Stated Maturity of more than one year
from the date of incurrence, (b) any Indebtedness, regardless of its term, if
such Indebtedness is renewable or extendible at the option of the obligor of
such Indebtedness pursuant to the terms thereof to a date more than one year
from the date of incurrence; and (c) any Indebtedness, regardless of its term,
that by its terms or by the terms of the agreement pursuant to which it is
issued, may be paid with the proceeds of other Indebtedness that may be incurred
pursuant to the terms of such first-mentioned Indebtedness or by the terms of
such agreement, which other Indebtedness has a Stated Maturity of more than one
year from the date of incurrence of such first-mentioned Indebtedness; provided,
however, that Working Capital Borrowings shall be excluded from Funded Debt
except to the extent that Working Capital Borrowings exceed an amount equal to
(i) 100% of the current assets (excluding cash) of such Person and its
Subsidiaries less (ii) the excess, if any, of current liabilities over current
assets of such Person and its Subsidiaries, in each case determined on a
consolidated basis in accordance with generally accepted accounting principles.
"guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other Person and any obligation, direct or indirect,
contingent or otherwise, of such Person (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or other
obligation of such other Person (whether arising by virtue of partnership
arrangements, or by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for purposes of assuring in any
other manner the obligee of such Indebtedness or other obligation of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part); provided, however, that the term "guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "guarantee" used as a verb has a corresponding meaning.
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"Hedging Obligations" of any Person means the obligations of
such Person pursuant to any interest rate swap agreement, foreign currency
exchange agreement, interest rate collar agreement, option or futures contract
or other similar agreement or arrangement designed to protect such Person
against changes in interest rates or foreign exchange rates.
"Holder" or "Debentureholder" means the Person in whose name a
Debenture is registered on the Registrar's books.
"Indebtedness" of any Person Means, without duplication,
(i) the principal of (A) Indebtedness of such Person for money
borrowed and (B) Indebtedness evidenced by notes, debentures, bonds or
other similar instruments for the payment of which such Person a
responsible or liable;
(ii) all Capital Lease Obligations of such Person and all
Attributable Indebtedness in respect of Sale/Leaseback Transactions
entered into by such Person;
(iii) all obligations of such Person incurred or assumed as
the deferred purchase price of property, and conditional sale
obligations of such Person and all obligations of such Person under any
title retention agreement (but excluding trade accounts payable arising
in the ordinary course of business);
(iv) all obligations of such Person for the reimbursement of
any obligor on any letter of credit, banker's acceptance or similar
credit transaction (other than obligations with respect to letters of
credit securing obligations (other than obligations described an (i)
through (iii) above) entered into in the ordinary course of business of
such Person to the extent such letters of credit are not drawn upon or,
if and to the extent drawn upon, such drawing is reimbursed no later
than the third Business Day following receipt by such Person of a
demand for reimbursement following payment on the letter of credit);
(v) all obligations of the type referred to in clauses (i)
through (iv) of other Persons and all dividends of other Persons for
the payment of which, in either case, such Person is responsible or
liable, directly or indirectly, as obligor, guarantor or otherwise,
including any guarantees of such obligations and dividends, including
by means of any agreement which has the economic effect of a guarantee;
and
(vi) all obligations of the type referred to in clauses (i)
through (v) of other Persons secured by any Lien on any property or
asset of such Person (whether or not such obligation is assumed by such
Person), the amount of such obligation being deemed to be the lesser of
the value of such property or assets or the amount of the obligation to
secured.
"Indenture" means this Indenture, as amended or supplemented
from time to time.
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"Investment" in any Person means any loan or advance to, any
guarantee of, any acquisition of any Capital Stock, equity interest, obligation
or other security of, or capital contribution or other investment in, such
Person. Investments shall exclude advances to customers and suppliers in the
ordinary course of business.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in The City of New York or at a place of payment are
authorized by law, regulation or executive order to remain closed. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.
"Lien" means any mortgage, pledge, security interest,
conditional sale or other title retention agreement or other similar lien.
"Net Cash Proceeds," with respect to any issuance or sale of
Capital Stock, means the cash proceeds of such issuance or sale net of
attorneys' fees, accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
Net Income" of any Person means the net income (loss) of such
Person, determined in accordance with generally accepted accounting principles;
excluding, however, from the determination of Net Income any gain (but not loss)
realized upon the sale or other disposition (including, without limitation,
dispositions pursuant to leaseback transactions) of any real property or
equipment of such Person, which is not sold or otherwise disposed of in the
ordinary course of business, or of any Capital Stock of the Company or a
Subsidiary owned by such Person.
"New Preferred Stock" means the Company's 1998 junior
convertible preferred stock as described in the certificate of designation filed
with the Secretary of State of Minnesota on August 11, 1998.
"Non-Convertible Capital Stock" means, with respect to any
corporation, any non-convertible Capital Stock of such corporation and any
Capital Stock of such corporation convertible solely into non-convertible common
stock of such corporation; provided, however, that Non-Convertible Capital Stock
shall not include any Redeemable Stock or Exchangeable Stock.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the President, any Vice President, the Treasurer or the Secretary of
the Company.
"Officers' Certificate" means a certificate signed by two
Officers.
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"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Partnership" means Star Gas Partners, L.P.
"Permitted Liens" means (i) Liens existing on February 3, 1994
and renewals, extension and refinancings thereof; (ii) rights of banks to set
off deposits against debts owed to said banks; (iii) Purchase Money
Indebtedness; (iv) Liens on the property of any entity existing at the time such
property is acquired by the Company or any of its Subsidiaries and renewals,
extensions and refinancings thereof, whether by merger, consolidation, purchase
of assets or otherwise; provided, however, that in the case of this clause (iv)
that such Liens (x) are not created, incurred or assumed in contemplation of
such assets being acquired by the Company and (y) do not extend to any other
assets of the Company or any of its Subsidiaries; and (v) liens for taxes not
yet due.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
"Preferred Stock," as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation; provided, however, that Preferred Stock shall not include the
Company's Class B Common Stock.
"Purchase Money Indebtedness" means Indebtedness (i)
consisting of the deferred purchase price of property, conditional sale
obligations, obligations under any title retention agreement and other purchase
money obligations, in each case where the maturity of such Indebtedness does not
exceed the anticipated useful life of the asset being financed, and (ii)
incurred to finance the acquisition by the Company or a Subsidiary of such
asset, including additions and improvements; provided, however, that any Lien
arising in connection with any such Indebtedness shall be limited to the
specified asset being financed or, has the ease of real property or fixtures,
including additions and improvements, the real property on which such asset is
attached.
"principal" of a Debenture means the principal of the
Debenture plus the premium, if any, payable on the Debenture which is due or
overdue or is to become due at the relevant time.
"Redeemable Stock" means any Capital Stock that by its term or
otherwise is required to be redeemed on or prior to the first anniversary of the
Stated Maturity Of the Debentures or is redeemable at the option of the Holder
thereof at any time on or prior to the first anniversary of the Stated Maturity
Of the Debentures.
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"Refinancing Agreement" means any credit agreement or other
agreement between the Company and bank lenders pursuant to which the Company
refinances borrowings under the Credit Agreement or another Refinancing
Agreement.
"Representative" means the holder, trustee, agent or
representative (if any) for an issue of Senior Debt.
"Restricted Investment" means any Investment in an
Unrestricted Subsidiary. At the time any Subsidiary of the Company is designated
by the Board of Directors of the Company as an Unrestricted Subsidiary, the
Company shall be deemed to have made a Restricted Investment in an amount equal
to the fair market value as of such time of the Company's interest in such
Unrestricted Subsidiary, as determined in good faith by the Board of Directors
and set forth in a Board Resolution; provided, however, that all amounts which
the Company is deemed to have invested in Star Gas Corporation by reason of the
designation of Star Gas Corporation as an Unrestricted Subsidiary by the Board
of Directors of the Company shall not be included in the definition of
Restricted Investment.
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired whereby the Company or a Subsidiary
transfers such property to a Person and the Company or a Subsidiary leases it
from such Person.
"SEC" means the Securities and Exchange Commission.
"Senior Debt" means the following obligations, whether
outstanding on February 3, 1994 or thereafter issued:
(i) all obligations consisting of the Bank Debt;
(ii) all obligations consisting of the principal of and
premium, if any, and accrued and unpaid interest (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company to the extent post-filing
interest is allowed in such proceeding) in respect of (A) Indebtedness
of the Company for money borrowed and (B) Indebtedness evidenced by
notes, debentures, bonds or other similar instruments for the payment
of which the Company is responsible or liable;
(iii) all Capital Lease Obligations of the Company;
(iv) all obligations of the Company (A) for the reimbursement
of any obligor on any letter of credit, banker's acceptance or similar
credit transaction, (B) under interest rate swaps, caps, collars,
options and similar arrangements and foreign currency hedges entered
into in respect of any obligations described in clauses (i), (ii) and
(iii) or (C) issued or assumed as the deferred purchase price of
property and all conditional sale obligations of the Company and all
obligations of the Company under any title retention agreement;
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(v) all obligations of other Persons of the type referred to
in clauses (ii), (iii) and (iv) and all dividends of other Persons for
the payment of which, in any case, the Company is responsible or
liable, directly or indirectly, as obligor, guarantor or otherwise,
including guarantees of such obligations and dividends; and
(vi) all obligations of the Company consisting of
modifications, renewals, extensions, replacements and refundings of any
obligations described in clauses (i), (ii), (iii), (iv) or (v);
unless, in the instrument creating or evidencing the same or pursuant to which
the same is outstanding, it is provided that such obligations, are not superior
in right of payment to the Debentures; provided, however, that Senior Debt shall
not include (1) any Indebtedness of the Company represented by its 10 1/8%
Subordinated Notes due 2003 issued under the indenture dated as of April 1,
1993, between the Company and Chemical Bank, as trustee, 9 3/8% Subordinated
Debentures due 2006 issued under the indenture dated as of February 3, 1994,
between the Company and Chemical Bank, as trustee and the 12 1/4% Subordinated
Debentures due 2005 issued under the indenture dated as of February 9, 1995,
between the Company and Chemical Bank, as trustee, (2) any obligation of the
Company to any Subsidiary or other Affiliate of the Company, (3) any liability
for federal, state, local or other taxes owed or owing by the Company, (4) any
accounts payable or other liability to trade creditors arising in the ordinary
course of business (including guarantees thereof or instruments evidencing such
liabilities) or (5) that portion of any Indebtedness that was incurred in
violation of this Indenture.
"Sevin Group" means the Estate of Malvin P. Sevin and trusts
created thereunder, Audrey L. Sevin, Irik P. Sevin, Thomas J. Edelman, Margot
Gordon and Phillip Ean Cohen and any trust over which such Persons have sole
voting power.
"Sevin Note" means the promissory note, dated December 31,
1993, of Irik P. Sevin to the Company in a principal amount of $1,599,827 and
due on December 31, 1994, as the same may be extended (but not otherwise
amended) on a year-by-year basis in accordance with the Company's past practices
and the principal amount of accrued and unpaid interest during the immediately
preceding year.
"Shares" means the shares of New Preferred Stock issued by the
Company.
"Significant Subsidiary" means (i) any Subsidiary of the
Company which at the time of determination either (A) had assets which, as of
the date of the Company's most recent quarterly consolidated balance sheet,
constituted at least 3% of the Company's total assets on a consolidated basis as
of such date, or (B) had revenues for the 12-month period ending on the date of
the Company's most recent quarterly consolidated statement of income which
constituted at least 3% of the Company's total revenues on a consolidated basis
for such period, or (ii) any Subsidiary of the Company which, if merged with all
Defaulting Subsidiaries of the Company, would at the time of determination
either (A) have had assets which, as of the date of the Company's most recent
quarterly consolidated balance sheet, would have constituted at least
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10% of the Company's total assets on a consolidated basis as of such date
or (B) have had revenues for the 12-month period ending on the date of the
Company's most recent quarterly consolidated statement of income which would
have constituted at least 10% of the Company's total revenues on a consolidated
basis for such period (each such determination being made in accordance with
generally accepted accounting principles). "Defaulting Subsidiary" means any
Subsidiary of the Company with respect to which an event described under clause
(4), (5), (6) or (7) of Section 6.01 has occurred and is continuing.
"Star Gas Transaction" means a business combination
transaction between the Company and the Partnership substantially in the form
described in the Press Release attached hereto as Exhibit B with such changes
therein as shall not materially adversely affect the rights or any Holder.
"Stated Maturity" means, with respect to any Indebtedness, the
date specified in such Indebtedness, or in any agreement pursuant to which such
Indebtedness was incurred, as the fixed date on which the principal of such
Indebtedness is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
Indebtedness at the option of the holder thereof upon the happening of any
contingency unless such contingency has occurred).
"Subordinated Obligations" means any Indebtedness of the
Company (whether outstanding on February 3, 1994 or thereafter incurred) which
is subordinate or junior in right of payment to the Debentures, including,
without limitation, any Indebtedness of the Company represented by its 10 1/8%
Subordinated Notes due 2003 issued under the indenture dated as of April 1,
1993, between the Company and Chemical Bank, as trustee, 9 3/8% Subordinated
Debentures due 2006 issued under the indenture dated as of February 3, 1994,
between the Company and Chemical Bank, as trustee and the 12 1/4% Subordinated
Debentures due 2005 issued under the indenture dated as of February 9, 1995,
between the Company and Chemical Bank, as trustee.
"Subsidiary" means a corporation of which a majority of the
Capital Stock having voting power under ordinary circumstances to elect a
majority of the board of directors is owned by (i) the Company, (ii) the Company
and one or more Subsidiaries or (iii) one or more Subsidiaries; provided
however, that an Unrestricted Subsidiary shall be deemed not to be a Subsidiary
(except as used in the definition thereof).
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as amended and in effect on February 4, 1994.
"Traber Group" means (i) all the holders of Class C Common
Stock as of February 4, 1994 who are not members of the Sevin Group, (ii) any
Person who receives shares from Persons described in clause (i) without such
transfer of shares being subject to the first refusal right referred to in the
shareholders agreement among the holders of Class C Common
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Stock, dated November 25, 1986, as amended through February 4, 1994, and
(iii) any trust over which Persons described in clause (i) or (ii) have sole
voting power.
"Treasury Rate" as of any date of determination means the
yield to maturity at the time of computation of United States Treasury
securities with a constant maturity (as compiled and published in the most
recent Federal Reserve Statistical Release H.15(519) which has become publicly
available at least two Business Days prior to such date of determination (or, if
such Statistical Release is no longer published, any publicly available source
of similar market data)) of five years.
"Trust Officer" means the chairman or vice-chairman of the
board of directors, the chairman or vice-chairman of the executive committee of
the board of directors, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant Trust officer, the controller
and any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above-designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Units" means the common units of limited partnership in the
Partnership issued pursuant to the Star Gas Transaction.
"Unrestricted Subsidiary" means a Subsidiary of the Company,
and each Subsidiary of such Subsidiary, designated by the Board of Directors of
the Company as an Unrestricted Subsidiary pursuant to a Board Resolution set
forth in an Officers' Certificate and delivered to the Trustee, (a) no portion
of the Indebtedness or any other obligations (contingent or otherwise) of which
(i) is guaranteed by the Company or any other Subsidiary of the Company, (ii) is
recourse to or obligates the Company or any other Subsidiary of the Company in
any way or (iii) subjects any property or assets of the Company or any other
Subsidiary of the Company, directly or indirectly, contingently or otherwise, to
the satisfaction thereof and (b) with which neither the Company nor any other
Subsidiary of the Company has any obligation (i) to subscribe for additional
shares of Capital Stock or other equity interests therein or (ii) to maintain or
preserve such Subsidiary's financial condition or to cause such Subsidiary to
achieve certain levels of operating results. An Unrestricted Subsidiary may be
designated a Subsidiary, provided that (A) no Default or Event of Default shall
have occurred and be continuing and (B) immediately after giving effect to such
designation, the Company would be able to issue an additional $1.00 of Funded
Debt pursuant to the first paragraph of "Limitation on Funded Debt."
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable at the issuer's option.
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"Voting Stock" of a corporation means all classes of Capital
Stock of such corporation outstanding and normally entitled to vote in the
election of directors.
"Wholly Owned Subsidiary" means a Subsidiary all the Capital
Stock of which (other than directors' qualifying shares) is owned by the Company
or another Wholly Owned Subsidiary.
"Working Capital Borrowings" means, on any date of
determination, all Indebtedness of the Company and its Subsidiaries on a
consolidated basis incurred to finance current assets.
"Working Capital Financing Agreement" means any agreement
entered into after February 3, 1994 by the Company and bank lenders pursuant to
which the Company issues Working Capital Borrowings.
"1989 Preferred Stock" means the preference stock of the
Company designated as "1989 Preferred Stock, Par Value $.10."
SECTION 1.02. Other Definitions.
<TABLE>
<CAPTION>
Defined in Section
Term
<S> <C>
"Affiliate Transaction"...................................................................... 4.07
"Bankruptcy Law"............................................................................. 6.01
"Change of Control".......................................................................... 4.08
"covenant defeasance option"................................................................. 8.01(b)
"Custodian".................................................................................. 6.01
"Event of Default"........................................................................... 6.01
"fair value"................................................................................. 10.02
"incur"...................................................................................... 4.03
"legal defeasance option".................................................................... 8.01(b)
"pay the Debentures"......................................................................... 10.03
"Paying Agent"............................................................................... 2.03
"Payment Blockage Period".................................................................... 10.03
"Payment in Full............................................................................. 10.02
"Payment Notice"............................................................................. 10.03
"Registrar".................................................................................. 2.03
"Restricted Payment"......................................................................... 4.05
</TABLE>
SECTION 1.03. Incorporation by Reference of Trust
Indenture Act. Whenever this Indenture refers to a provision of the TIA,
the provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
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"Commission" means the SEC.
"indenture securities" means the Debentures.
"indenture security holder" means a Debentureholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the Indenture securities means the Company and
any other obligor on the Debentures.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to is in accordance with generally accepted accounting
principles as in effect on February 3, 1994 and all accounting
calculations shall be determined in accordance with such principles;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the
plural include the singular;
(6) unsecured debt shall not be deemed to be subordinate or
junior to secured debt merely by virtue of its nature as unsecured
debt;
(7) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof
that would be shown on a balance sheet of the issuer dated such date
prepared in accordance with generally accepted accounting principles
and accretion of principal on such security shall be deemed to be the
incurrence of Indebtedness; and
(8) the principal amount of any Preferred Stock shall be (i)
the maximum liquidation value of such Preferred Stock or (ii) the
maximum mandatory redemption or mandatory repurchase price with respect
to such Preferred Stock, whichever is greater.
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ARTICLE 2.
The Debentures
SECTION 2.01. Form and Dating. The Debentures and the
Trustee's certificate of authentication shall be substantially in the form of
Exhibit A, which is hereby incorporated in and expressly made a part of this
Indenture. The Debentures may have notations, legends or endorsements required
by law, stock exchange rule, agreements to which the Company is subject, if any,
or usage (provided that any such notation, legend or endorsement is in a form
acceptable to the Company). Each Debenture shall be dated the date of its
authentication. The terms of the Debentures set forth in Exhibit A are part of
the terms of this Indenture.
SECTION 2.02. Execution and Authentication. Two Officers
shall sign the Debentures for the Company by manual or facsimile signature. The
Company's seal shall be impressed, affixed, imprinted or reproduced on the
Debentures and may be in facsimile form.
If an Officer whose signature is on a Debenture no longer
holds that office at the time the Trustee authenticates the Debenture, the
Debenture shall be valid nevertheless.
A Debenture shall not be valid until an authorized officer of
the Trustee manually signs the certificate of authentication on the Debenture.
The signature shall be conclusive evidence that the Debenture has been
authenticated under this Indenture.
The Trustee shall authenticate and deliver Debentures for
original issue in an aggregate principal amount of up to $75,000,000, upon a
written order of the Company signed by up to two Officers or by an Officer and
either an Assistant Treasurer or an Assistant Secretary of the Company. Such
order shall specify the amount of the Debentures to be authenticated and the
date on which the original issue of Debentures is to be authenticated. The
aggregate principal amount of Debentures outstanding at any time may not exceed
that amount except as provided in Section 2.07.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Debentures. Unless limited by the
terms of such appointment, an authenticating agent may authenticate Debentures
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Registrar, Paying Agent or agent
for service of notices and demands.
SECTION 2.03. Registrar and Paying Agent. The Company
shall maintain an office or Agency in the Borough of Manhattan, City of New York
where Securities may be presented for registration of transfer or for exchange
(the "Registrar") and an office or agency where Securities may be presented for
payment (the "Paying Agents"). The Registrar and Paying Agent initially shall be
the Trustee. The Company may change the Registrar or Paying Agent without prior
notice to Holders and the Company or any Subsidiary may act in such capacity.
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The Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may have one or more co-Registrars and one or more
additional Paying Agents. The term "Paying Agent" includes any additional Paying
Agent.
The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-registrar not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. The
Company or any of its domestically incorporated Wholly Owned Subsidiaries may
act as Paying Agent, Registrar, co-registrar or transfer agent.
SECTION 2.04. Paying Agent to Hold Money in Trust. On or
prior to each due date of the principal and interest on any Debenture, the
Company shall deposit with the Paying Agent a sum sufficient to pay such
principal and interest when so becoming due. The Company shall require each
Paying Agent (other than the Trustee) to agree in writing that the Paying Agent
shall hold in trust for the benefit of Debentureholders or the Trustee all money
held by the Paying Agent for the payment of principal of or interest on the
Debentures and shall notify the Trustee of any default by the Company in making
any such payment. If the Company or a Subsidiary acts as Paying Agent, it shall
segregate the money held by if as Paying Agent and hold it as a separate trust
fund. The Company at any time may require a Paying Agent to pay all money held
by it to the Trustee and to account for any funds disbursed by the Paying Agent.
Upon complying with this Section, the Paying Agent shall have no further
liability for the money delivered to the Trustee.
SECTION 2.05. Debentureholder Lists. The Trustee shall
preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Debentureholders. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee, in
writing as least five Business Days before each interest payment date and at
such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses
of Debentureholders.
SECTION 2.06. Transfer and Exchange. The Debentures shall
be issued in registered form and shall be transferable only upon the
surrender of a Debenture for registration of transfer. When a Debenture is
presented to the Registrar or a co-registrar with a request to register a
transfer, the Registrar shall register the transfer as requested if the
requirements of Section 8-401(1) of the Uniform Commercial Code are met. When
Debentures are presented to the Registrar or a co-registrar with a request to
exchange them for an equal principal amount of Debentures of other
denominations, the Registrar shall make the exchange as requested if the same
requirements are met. To permit registration of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Debentures at the
Registrar's or co-registrar's request. The Company may require payment of a sum
sufficient to pay all taxes, assessments or other governmental charges in
connection with any transfer or exchange pursuant to this Section.
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The Company shall not be required to make and the Registrar need not
register transfers or exchanges of Debentures selected for redemption (except,
in the case of Debentures to be redeemed in part, the portion thereof not to be
redeemed) or any Debentures for a period of 15 days before a selection of
Debentures to be redeemed or 15 days before an interest payment date.
Prior to the due presentation for registration of transfer of
any Debenture, the Company, the Trustee, the Paying Agent, the Registrar or any
co-registrar may deem and treat the Person in whose name a Debenture is
registered as the absolute owner of such Debenture for the purpose of receiving
payment of principal of and interest on such Debenture and for all other
purposes whatsoever, whether or not such Debenture is overdue, and none of the
Company, the Trustee, the Paying Agent, the Registrar or any co-registrar shall
be affected by notice to the contrary.
All Debentures issued upon any transfer or exchange pursuant
to the terms of this Indenture shall evidence the same debt and shall be
entitled to the same benefits under this Indenture as the Debentures surrendered
upon such transfer or exchange.
SECTION 2.07. Replacement Debentures. If a mutilated
Debenture is surrendered to the Registrar or if the Holder of a Debenture
claims that the Debenture has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Debenture
if the requirements of Section 8-405 of the Uniform Commercial Code are met and
the Holder satisfies any other reasonable requirements of the Trustee. If
required by the Trustee or the Company, such Holder shall furnish an indemnity
bond sufficient in the judgment of the Company and the Trustee to protect the
Company, the Trustee, the Paying Agent, the Registrar and any co-registrar from
any loss which any of them may suffer if a Debenture is replaced.
Every replacement Debenture is an additional obligation of the
Company.
SECTION 2.08. Outstanding Debentures. Debentures
outstanding at any time are all Debentures authenticated and delivered by
the Trustee except for those canceled by it, those delivered to is for
cancellation and those described in this Section as not outstanding. A Debenture
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Debenture.
If a Debenture is replaced pursuant to Section 2.07, it ceases
to be outstanding unless the Trustee and the Company receive proof satisfactory
to them that the replaced Debenture is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all principal and interest payable on that date with respect
to the Debentures (or portions thereof) to be redeemed or maturing, as the case
may be, and the Paying Agent is not prohibited from paying such money to the
Debentureholders on that date pursuant to the terms of this Indenture, then on
and after that date such Debentures (or portions thereof) cease to be
outstanding and interest on them ceases to
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<PAGE>
accrue provided that if the Debentures are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture, or provision thereof
satisfactory to the Trustee has been made.
SECTION 2.09. Temporary Debentures. Until definitive
Debentures are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Debentures. Temporary Debentures shall be
substantially in the form of definitive Debentures but may have variations that
the Company considers appropriate for temporary Debentures. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate definitive
Debentures and deliver them in exchange for temporary Debentures.
SECTION 2.10. Cancellation. The Company at any time may
deliver Debentures to the Trustee for cancellation. The Registrar and the
Paying Agent shall forward to the Trustee any Debentures surrendered to them for
registration of transfer, exchange or payment. The Trustee and no one else shall
cancel and destroy (subject to the record retention requirements of the Exchange
Act) all Debentures surrendered for registration of transfer, exchange, payment
or cancellation and deliver a certificate of such destruction to the Company
unless the Company directs the Trustee to deliver canceled Debentures to the
Company. The Company may not issue new Debentures to replace Debentures it has
redeemed, paid or delivered to the Trustee for cancellation.
SECTION 2.11. Defaulted Interest. If the Company defaults
in a payment of interest on the Debentures, the Company shall pay defaulted
interest (plus interest on such defaulted interest to the extent lawful) in any
lawful manner. The Company may pay the defaulted interest to the Persons who are
Debentureholders on a subsequent special record date, which date shall be at
least five Business Days prior to the payment date. The Company shall fix or
cause to be fixed any such special record date and payment date, and, at least
15 days before any such special record date, the Company shall mail to the
Debentureholder a notice that states the special record date, the payment date
and the amount of defaulted interest to be paid.
ARTICLE 3.
Redemption
SECTION 3.01. Notices to Trustee. If the Company elects to
redeem Debentures pursuant to item 5 of the Debentures, it shall notify the
Trustee in writing of the redemption date, the principal amount of Debentures to
be redeemed and the paragraph of the Debentures pursuant to which the redemption
will occur.
The Company shall give each notice to the Trustee provided for
in this Section at least 60 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein. If fewer than all the
Debentures are to be redeemed, the record date relating to such redemption shall
be
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<PAGE>
selected by the Company and given to the Trustee, which record date shall be
not less than 15 days after the date of notice to the Trustee.
SECTION 3.02. Selection of Debentures To Be Redeemed.
If fewer than all the Debentures are to be redeemed, the Trustee shall
select the Debentures to be redeemed pro rata or by lot or by a method that
complies with applicable legal and securities exchange requirements, if any, and
that the Trustee considers fair and appropriate and in accordance with methods
generally used as the time of selection by fiduciaries in similar circumstances.
The Trustee shall make the selection from outstanding Debentures not previously
called for redemption. The Trustee may select for redemption portions of the
principal of Debentures that have denominations larger than $1,000. Debentures
and portions of them the Trustee selects shall be in amounts of $1,000 or a
whole multiple of $1,000. Provisions of this Indenture that apply to Debentures
called for redemption also apply to portions of Debentures called for
redemption. The Trustee shall notify the Company promptly of the Debentures or
portions of Debentures to be redeemed.
SECTION 3.03. Notice of Redemption. If the Company elects
to redeem Debentures pursuant to the first paragraph of item 5 of the
Debentures, at least 30 days but not more than 60 days before a date for
redemption of Debentures, the Company shall mail a notice of redemption by
first-class mail to each Holder of Debentures to be redeemed and to the Trustee.
If the Company elects to redeem Debentures pursuant to the second paragraph of
item 5 of the Debentures, at least 3 days but not more than 10 days before a
date for redemption of Debentures, the Company shall mail a notice of redemption
by first-class mail to each Holder of Debentures to be redeemed.
If the Company elects to redeem Debentures pursuant to the
first paragraph of item 5 of the Debentures, the notice shall identify the
Debentures to be redeemed and shall state:
(9) the redemption date;
(10) the redemption price;
(11) the name and address of the Paying Agent;
(12) that Debentures called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(13) if fewer than all the outstanding Debentures are to be
redeemed, the identification and principal amounts of the particular
Debentures to be redeemed;
(14) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture, interest on Debentures
(or portion thereof) called for redemption ceases to accrue on and
after the redemption date;
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(15) the paragraph of the Debentures pursuant to which the
Debentures called for redemption are being redeemed; and
(16) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Debentures.
If the Company elects to redeem Debentures pursuant to the
second paragraph of item 5 of the Debentures, the notice shall identify the
Debentures to be redeemed and shall state:
(1) the redemption date;
(2) the name and address of the Paying Agent;
(3) that Debentures called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(4) that the certificates for the Shares must be surrendered
to the Paying Agent in order to effect the Exchange;
(5) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture, interest on Debentures
(or portion thereof) called for redemption ceases to accrue on and
after the redemption date;
(6) the paragraph of the Debentures pursuant to which the
Debentures called for redemption are being redeemed;
(7) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Debentures; and
(8) a representation that the Star Gas Transaction shall have
been consummated simultaneously with the redemption.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section.
SECTION 3.04. Effect of Notice of Redemption. Once notice
of redemption is mailed, Debentures called for redemption become due and
payable on the redemption date and at the redemption price stated in the notice.
Upon surrender to the Paying Agent, such Debentures shall be paid at the
redemption price stated in the notice, plus accrued interest to the redemption
date. Failure to give notice or any defect in the notice to any Holder shall not
affect the validity of the notice to any other Holder. Notwithstanding the
forgoing, if the Company mails a notice of redemption in connection with a
redemption of Debentures pursuant to the second paragraph of item 5 of the
Debentures and subsequently determines, in
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<PAGE>
good faith, that the Star Gas Transaction will not be consummated, the
Company, in its sole discretion, may revoke such notice of redemption by
notifying the Trustee in writing with the immediate effect that Debentures
called for redemption shall no longer be due and payable on the redemption date
and the Company shall be under no further obligation to so redeem any
Debentures.
SECTION 3.05. Deposit of Redemption Price. Prior to the
redemption date, the Company shall deposit with the Paying Agent (or, if
the Company or a Subsidiary is the Paying Agent, shall segregate and hold in
trust) money sufficient to pay the redemption price of and accrued interest on
all Debentures to be redeemed on that date other than Debentures or portions of
Debentures called for redemption which have been delivered by the Company to the
Trustee for cancellation. If the Company elects to redeem Debentures pursuant to
the second paragraph of item 5 of the Debentures, prior to the redemption date,
the Company shall also deposit with the Paying Agent (or, if the Company or a
Subsidiary is the Paying Agent, shall segregate and hold in trust) an aggregate
number of Units sufficient to effect the Exchange.
SECTION 3.06. Debentures Redeemed in Part. Upon surrender
of a Debenture that is redeemed in part, the Company shall execute and the
Trustee shall authenticate for the Holder (at the Company's expense) a new
Debenture equal in principal amount to the unredeemed portion of the Debenture
surrendered.
ARTICLE 4.
Covenants
SECTION 4.01. Payment of Debentures. The Company shall
promptly pay the principal of and interest on the Debentures on the dates
and in the manner provided in the Debentures and in this Indenture. Principal
and interest shall be considered paid on the date due if on such date the
Trustee or the Paying Agent holds in accordance with this Indenture money
sufficient to pay all principal and interest then due and the Trustee or the
Paying Agent, as the case may be, is not prohibited from paying such money to
the Debentureholders on that date pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the
rate specified therefor in the Debentures, and is shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. SEC Reports. Whether or not required by the
rules and regulations of the SEC, so long as any Debentures are
outstanding, the Company shall furnish to the Holders of Debentures all
quarterly and annual financial information that would be required to be
contained in a filing with the SEC on Forms 10-Q and 10-K if the Company were
required to file such Forms, including a "Management's Discussion and Analysis
of Financial Condition and Results of Operations" and, with respect to the
annual information only, a report thereon by the Company's certified independent
accountants. In addition, whether or not required by the
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rules and regulations of the SEC, the Company shall file a copy of all such
information with the SEC for public availability and make such information
available to investors who request it in writing. The Company also shall comply
with the provisions of 1314(a) of the TIA.
SECTION 4.03. Limitation on Funded Debt. (a) The Company
shall not, directly or indirectly, crease, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable with respect to (collectively,
"incur") any Funded Debt unless, after giving effect thereto, the Company's
Consolidated EBITDA Coverage Ratio exceeds 2.0 to 1.
(b) Notwithstanding Section 4.03(a), the Company may incur the
following Funded Debt: (i) Funded Debt owed to and held by a Wholly Owned
Subsidiary; provided, however, that any subsequent issuance or transfer of any
Capital Stock which results in any such Wholly Owned Subsidiary ceasing to be a
Wholly Owned Subsidiary or any subsequent transfer of such Funded Debt (other
than to a Wholly Owned Subsidiary) shall be deemed, in each case, to constitute
the incurrence of such Funded Debt by the Company; (ii) the Debentures and
Funded Debt issued in exchange for, or the proceeds of which are used to refund
or refinance, any Funded Debt permitted by this clause (ii); provided, however,
that (1) the principal amount of the Funded Debt so incurred shall not exceed
the principal amount of the Funded Debt to exchanged, refunded or refinanced and
(2) the Funded Debt so incurred (A) shall not mature prior to the Stated
Maturity of the Funded Debt so exchanged, refunded or refinanced and (B) shall
have an Average Life equal to or greater than the remaining Average Life of the
Funded Debt so exchanged, refunded or refinanced; (iii) Funded Debt (other than
Funded Debt described in clause (i) or (ii) of this paragraph) outstanding on
February 3, 1994 and Funded Debt issued in exchange for, or the proceeds of
which are used to refund or refinance, any Funded Debt permitted by this clause
(iii) or by Section 4.03(a); provided however, that (1) the principal amount of
the Funded Debt so incurred shall not exceed the principal amount of the Funded
Debt so exchanged, refunded or refinanced, (2) the Funded Debt so incurred (A)
shall not mature prior to the Stated Maturity of the Funded Debt so exchanged,
refunded or refinanced and (B) shall have an Average Life equal to or greater
than the remaining Average Life of the Funded Debt so exchanged, refunded or
refinanced and (3) if the Funded Debt so exchanged, refunded or refinanced is a
Subordinated Obligation, the Funded Debt so incurred shall be subordinated to
the Debentures; and (iv) additional Funded Debt in an aggregate amount not to
exceed $50 million at any one time outstanding; provided, however, that at any
time and to the extent the Company is permitted to incur Funded Debt pursuant to
the Consolidated EBITDA Coverage Ratio test contained in Section 4.03(a), the
Company may elect that amounts of Funded Debt incurred pursuant to this clause
(iv) be deemed to have been incurred pursuant to Section 4.03(a) and be deemed
not to have been incurred pursuant to this clause (iv).
(c) The Company shall not create, incur, assume or permit to
exist any Lien (other than Permitted Liens) upon or with respect to any of the
property of the Company or any Subsidiary to secure Funded Debt that is not
Senior Debt unless contemporaneously therewith effective provision is made to
secure the Debentures equally and ratably with such Funded Debt for so long as
such Funded Debt is secured by a Lien.
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SECTION 4.04. Limitation on Indebtedness and Preferred
Stock of Subsidiaries. The Company shall not permit any Subsidiary to incur
any Indebtedness or issue any Preferred Stock except: (i) Indebtedness or
Preferred Stock issued to and held by the Company or a Wholly Owned Subsidiary;
provided, however, that any subsequent issuance or transfer of any Capital Stock
which results in any such Wholly Owned Subsidiary ceasing to be a Wholly Owned
Subsidiary or any subsequent transfer of such Indebtedness or Preferred Stock
(other than to the Company or a Wholly Owned Subsidiary) shall be deemed, in
each case, to constitute the incurrence of such Indebtedness or the issuance of
such Preferred Stock, as the case may be, by the issuer thereof; (ii)
Indebtedness incurred or Preferred Stock of a Subsidiary issued and outstanding
on or prior to the date on which such Subsidiary was acquired by the Company
(other than Indebtedness incurred or Preferred Stock issued in contemplation of,
as consideration in, or to provide all or any portion of the funds or credit
support utilized to consummate, the transaction or series of related
transactions pursuant to which such Subsidiary became a Subsidiary or was
acquired by the Company), provided that at the time such Subsidiary is acquired
by the Company, after giving effect to such Indebtedness or Preferred Stock of
such Subsidiary, the Company's Consolidated EBITDA Coverage Ratio exceeds 2.0 to
1; (iii) Indebtedness or Preferred Stock (other than Indebtedness or Preferred
Stock described in clause (i), (ii), (iv) or (vi) of this Section 4.04) incurred
or issued and outstanding on or prior February 3, 1994; (iv) Indebtedness of a
Subsidiary consisting of guarantees issued by such Subsidiary and outstanding on
February 3, 1994 and Indebtedness of a Subsidiary consisting of guarantees
issued subsequent to February 3, 1994, in each case, to the extent such
guarantee guarantees Bank Debt; (v) Indebtedness of a Subsidiary (other than
Indebtedness described in clause (iv) above) consisting of guarantees of Funded
Debt of the Company permitted by Section 4.03(a), provided that
contemporaneously with the incurrence of such Indebtedness by such Subsidiary,
such Subsidiary issues a guarantee for the pro rata benefit of the Holders of
the Debentures that is subordinated to such Indebtedness of such Subsidiary to
the same extent as the Debentures are subordinated to such Funded Debt of the
Company; and (vi) Indebtedness or Preferred Stock issued in exchange for, or the
proceeds of which are used to refund or refinance, Indebtedness or Preferred
Stock referred to in the foregoing clause (ii) or (iii); provided, however, that
(1) the principal amount of such Indebtedness or Preferred Stock so incurred or
issued shall not exceed the principal amount of the Indebtedness or Preferred
Stock so exchanged or refinanced and (2) the Indebtedness or Preferred Stock so
incurred or issued shall (A) have a Stated Maturity later than the Stated
Maturity of the Indebtedness or Preferred Stock being exchanged or refinanced
and (B) shall have an Average Life equal to or greater than the remaining
Average Life of the Indebtedness or Preferred Stock so exchanged, refunded or
refinanced.
SECTION 4.05. Limitation on Restricted Payments. (a) The
Company shall not, and shall not permit any Subsidiary, directly or
indirectly, to (i) declare or pay any dividend or make any distribution on or in
respect of its Capital Stock (including any payment in connection with any
merger or consolidation involving the Company) or to the direct or indirect
holders of its Capital Stock (except (x) dividends or distributions payable
solely in its Non-Convertible Capital Stock or in options, warrants or other
rights to purchase its Non-Convertible Capital Stock and (y) dividends or
distributions payable to the Company or a Subsidiary, and, if a Subsidiary is
not wholly owned, to the other shareholders of such Subsidiary on a pro rata
basis
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in accordance with their ownership interest in such Subsidiary), (ii)
purchase, redeem or otherwise acquire or retire for value any Capital Stock of
the Company or of any direct or indirect parent of the Company, (iii) purchase,
repurchase, redeem, defease or otherwise acquire or retire for value, prior to
scheduled maturity, scheduled repayment or scheduled sinking fund payment, any
Subordinated Obligations (other than the purchase, repurchase or other
acquisition of Subordinated Obligations purchased in anticipation of satisfying
a sinking fund obligation, principal installment or final maturity, in each case
due within one year of the date of acquisition) or (iv) make any Restricted
Investment (any such dividend, distribution, purchase, redemption, repurchase,
defeasance, other acquisition or retirement, or any such Restricted Investment,
being herein referred to as a "Restricted Payment") if at the time the Company
or such Subsidiary makes such Restricted Payment: (1) a Default shall have
occurred and be continuing (or would result therefrom); or (2) the aggregate
amount of such Restricted Payment and all other Restricted Payments subsequent
to December 31, 1993 would exceed the sum of: (A) 50% of the Cash Flow of the
Company and its Subsidiaries accrued during the period (treated as one
accounting period) subsequent to December 31, 1993, to the end of the most
fiscal quarter ending at least 45 days prior to the date of such Restricted
Payment (or, in the case of such Cash Flow shall be a deficit, minus 100% of
such deficit); (B) the aggregate Net Cash Proceeds received by the Company from
the issue or sale of its Capital Stock subsequent to December 31, 1993 (other
than an issuance or sale to a Subsidiary or Unrestricted Subsidiary of the
Company or an employee stock ownership plan or other trust established by the
Company or any Subsidiary or Unrestricted Subsidiary of the Company; (C) the
amount by which Indebtedness of the company is reduced on the Company's balance
sheet upon the conversion or exchange (other than by a Subsidiary) subsequent to
December 31, 1993, of any Indebtedness of the Company convertible or
exchangeable for Capital Stock of the Company (less the amount of any cash, or
other property, distributed by the Company upon such conversion or exchange);
and (D) $20 million.
(b) The provisions of Section 4.05(a) shall not prohibit: (i)
any purchase or redemption of Capital Stock or Subordinated Obligations of the
Company made by exchange for, or out of the proceeds of the substantially
concurrent sale of, Capital Stock of the Company (other than Capital Stock
issued or sold to a Subsidiary or an employee stock ownership plan or other
trust established by the Company or any Subsidiary); provided, however, that (A)
such purchase or redemption shall be excluded in the calculation of the amount
of Restricted Payments and (B) the Net Cash Proceeds from such sale shall be
excluded from clause (2)(B) of Section 4.05(a); (ii) dividends paid within 60
days after the date of declaration thereof if at such date of declaration such
dividend would have complied with this Section 4.05; provided, however, that at
the time of payment of such dividend, no other Default shall have occurred and
be continuing (or result therefrom); provided further, however, that such
dividend shall be included in the calculation of the amount of Restricted
Payments; (iii) dividends declared and paid in respect of the Company's Class B
Common Stock outstanding on February 3, 1994 in an amount in respect of any
fiscal year nor to exceed 1.5% of the Company's Class B Cash Flow for the
immediately preceding fiscal year (provided that no dividend shall theretofore
have been declared on the Class A Common Stock or Class C Common Stock in the
same fiscal year); provided, however, that at the time of such dividend,
redemption or exchange, no Default shall
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have occurred or be continuing; provided further, however, that any such
dividends, redemptions and exchanges shall include in the calculation of
Restricted Payments; (iv) dividends on, and mandatory and optional redemptions
and exchanges of, the 1989 Preferred Stock outstanding on February 3, 1994;
provided, however, that at the time of such dividend, redemption or exchange, no
Default shall have occurred or be continuing; provided further, however, that
any such dividends, redemptions and exchanges shall be excluded in the
calculation of Restricted Payments; or (v) Restricted Investments in an
aggregate amount not to exceed the sum of (A) $25 million, plus (B) $5 million
on each February 3, plus (C) the amount of all dividends or other distributions
received in cash by the Company or any of its Wholly Owned Subsidiaries from,
and the amount of any Net Cash Proceeds to the Company or any of its Wholly
Owned Subsidiaries from the sale of Capital Stock (other than a sale of Capital
Stock to the Company, a Subsidiary or Unrestricted Subsidiary of the Company or
an employee stock ownership plan or other trust established by the Company or
any Subsidiary or Unrestricted Subsidiary of the Company) of, an Unrestricted
Subsidiary of the Company, to the extent that the aggregate amount of such
dividends, distributions and Net Cash Proceeds referred to in this clause (C) do
not exceed the aggregate amount of Restricted Investments made by the Company in
such Unrestricted Subsidiary since February 3, 1994; provided, however, that
Restricted Investments permitted by this clause (v) shall be excluded in the
calculation of the amount of Restricted Payments.
SECTION 4.06. Limitations on Restrictions on Distributions
from Subsidiaries. The Company shall not, and shall not permit any
Subsidiary to, create or otherwise cause or permit to exist or become effective
any consensual encumbrance or restriction on the ability of any Subsidiary to:
(i) pay dividends or make any other distribution on the Capital Stock or pay any
Indebtedness owed to the Company, (ii) make any loans or advances to the Company
or (iii) transfer any of its property or assets to the Company, except: (1) any
encumbrance or restriction pursuant to an agreement in effect on February 3,
1994; (2) any encumbrance or restriction with respect to a Subsidiary pursuant
to an agreement relating to any Indebtedness issued by such Subsidiary on or
prior to the date on which such Subsidiary was acquired by the Company (other
than Indebtedness issued in contemplation of, as consideration in, or to provide
all or any portion of the funds or credit support utilized to consummate, the
transaction or series of related transactions pursuant to which such Subsidiary
became a Subsidiary or was acquired by the Company) and outstanding on such
date; (3) any encumbrance or restriction pursuant to an agreement effecting a
refinancing of Indebtedness issued pursuant to an agreement referred to in the
foregoing clause (1) or (2) or contained in any amendment to an agreement
referred to in the foregoing clause (1) or (2); provided, however, that the
encumbrances and restrictions contained in any such refinancing agreement or
amendment are no less favorable to Holders of the Debentures than the
encumbrances and restrictions contained in such agreements; (4) any such
encumbrance or restriction consisting of customary nonassignment provisions in
leases governing leasehold interests to the extent such provisions restrict the
transfer of the lease; (5) in the case of clause (iii) above, restrictions
contained in security agreements securing Indebtedness of a Subsidiary to the
extent such restrictions restrict the transfer of the property subject to such
security agreements; and (6) any restriction with respect to a Subsidiary
imposed pursuant to an agreement entered into for the sale or disposition
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of all or substantially all of the Capital Stock or assets of such
Subsidiary pending the closing of such sale or disposition.
SECTION 4.07. Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any Subsidiary to, conduct any
business or enter into any transaction or series of similar transactions in an
aggregate amount in excess of $100,000 (including the purchase, sale, lease or
exchange of any property or the rendering of any service) with any Affiliate of
the Company or any legal or beneficial owner of 5% or more of any class of
Capital Stock of the Company or with an Affiliate of any such owner (any such
business, transaction or series of similar transactions, an "Affiliate
Transaction") unless the terms of such Affiliate Transaction are: (1) set forth
in writing, (ii) fair to the Company and its Subsidiaries from a financial point
of view (as determined by the Board of Directors), (iii) in the case of any
Affiliate Transaction (other than an Affiliate Transaction with an Unrestricted
Subsidiary of the Company) in an aggregate amount in excess of $500,000, the
disinterested members of the Board of Directors have determined in good faith
that the criteria set forth in clause (ii) are satisfied and (iv) in the case of
any Affiliate Transaction involving an Unrestricted Subsidiary of the Company in
an aggregate amount in excess of $2.0 million, the members of the Board of
Directors have determined in good faith that the criteria set forth in clause
(ii) are satisfied. This covenant shall not prohibit: (i) any Restricted Payment
permitted under Section 4.05 (ii) any issuance of securities, or other payments,
awards or grants in cash, securities or otherwise pursuant to, or the funding
of, employment arrangements, stock options and stock ownership plans approved by
the Board of Directors, (iii) loans or advances to employees in the ordinary
course of business; (iv) the payment of reasonable fees to directors of the
Company and its Subsidiaries who are not employees of the Company or its
Subsidiaries, (v) any transaction between the Company and a Wholly Owned
Subsidiary or between Wholly Owned Subsidiaries or (vi) the investment
represented by the Sevin Note.
SECTION 4.08. Change of Control. (a) Upon the occurrence
of a Change of Control, each Holder of Debentures shall have the right to
require the Company to repurchase all or any part of such Holder's Debentures at
a repurchase price equal to 101% of the principal amount thereof plus accrued
and unpaid interest, if any, to the date of repurchase. A "Change of Control"
will be deemed to occur if (i) any "person" or "group" (within he meaning of
Section 13(d) and 14(d)(2) of the Exchange Act), other than the members of the
Sevin Group and the Traber Group, becomes the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be
deemed to be the beneficial owner of all shares that such Person has the right
to acquire, regardless of whether such right is exercisable immediately or after
the passage of time), directly or indirectly, of 50% or more of the total voting
power of all classes of the Voting Stock of the Company and the members of the
Sevin Group and the Traber Group cease to have the right to appoint at least a
majority of the members of the Board of Directors of the Company, (ii) the
holders of the 10 1/8% Notes have the right to require the Company to purchase
any such 10 1/8% Notes pursuant to Section 4.08 of the Indenture, dated as of
April 1, 1993, between the Company and Chemical Bank, as trustee, relating
thereto, (iii) any holder of the 11.85% Notes, the 12.17% Noses or the 12.18%
Notes exercises its right to declare any such notes to be due and payable
pursuant to Section 2.1 of the Note Agreement, dated as of
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September 1, 1988, relating thereto (the "1988 Note Agreement"), (iv) any
holder of the 14.10% Notes exercises its right to declare any such notes to be
due and payable pursuant to Section 5.2(A) of the Note Agreement, dated as of
January 15, 1991, relating thereto (the "1991 Note Agreement") and any holder of
the 2000 Notes exercises its right to declare any such notes to be due and
payable pursuant to Section 5.2(A) of the Purchase Agreement, dated as of
September 1, 1991, relating thereto (the "1991 Purchase Agreement") or (v) any
holder of 11.85% Notes, 12.17% Notes, 12.18% Notes, 14.10% Notes or 2000 Notes
shall have received any consideration (whether in the form of cash, a change in
the rate of interest relating to such notes, a change in any other provision of
the terms of such notes, or otherwise) to amend, modify, waive or otherwise give
up its right to declare any such notes to be due and payable upon a "Change of
Ownership," as defined in the 1988 Note Agreement, the 1991 Note Agreement or
the 1991 Purchase Agreement, as the case may be; provided, however, that an
amendment to or waiver or other modification of Section 2.1 of the 1988 Note
Agreement, Section 5.2(A) of the 1991 Note Agreement or 5.2(A) of the 1991
Purchase Agreement shall not, in the absence of any other consideration,
constitute a Change of Control under this Indenture.
(b) Within 30 days following any Change of Control, the
Company shall mail a notice to each Holder with a copy to the Trustee stating:
(1) that a Change of Control has occurred and that
such Holder has the right to require the Company to purchase such
Holder's Debentures at a purchase price in cash equal to 101% of the
principal amount thereof plus accrued and unpaid interest, if any, to
the date of purchase;
(2) the circumstances and relevant facts regarding
such Change of Control (including information with respect to pro forma
historical income, cash flow and capitalization after giving effect to
such Change of Control);
(3) purchase date (which shall be no earlier than
30 days nor later than 60 days from the date such notice is mailed);
and
(4) the instruction determined by the Company,
consistent with this Section, that a Holder must follow in order to
have its Debenture purchased.
If, at the time of a Change of Control, the Company is prohibited by the terms
of the Bank Debt from purchasing Debentures that may be tendered by Holders at
the purchase price described above as a result of such Change of Control, then
prior to the mailing of the notice to Holders described in this paragraph but in
any event within 30 days following any Change of Control, the Company shall (i)
repay in full all Bank Debt or offer to repay in full all Bank Debt and repay
the Bank Debt of each lender who has accepted such offer or (ii) obtain the
requisite consent under the Bank Debt to permit the purchase of the Debentures
as described above. The Company shall first comply with the covenant described
in the preceding sentence before it shall be required to purchase Debentures in
the event of a Change of Control, provided that the Company's failure to comply
with the covenant described in the preceding sentence shall constitute a Default
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described in clause 3 of Section 6.01.
(c) Holders electing to have a Debenture purchased shall be
required to surrender the Debenture, with an appropriate form duly completed, to
the Company as the address specified in the notice at least 10 Business Days
prior to the purchase date. Holders shall be entitled to withdraw their election
if the Trustee or the Company receives not later than three Business Days prior
to the purchase date, a facsimile transmission or letter setting forth the name
of the Holder, the principal amount of the Debenture which was delivered for
purchase by the Holder and a statement that such Holder is withdrawing his
election to have such Debenture purchased.
(d) On the purchase date, all Debentures purchased by the
Company under this Section shall be delivered by the Trustee for cancellation,
and the Company shall pay the purchase price plus accrued and unpaid interest,
if any, to the Holders entitled thereto.
(e) The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the purchase of Debentures pursuant to
this Section. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Section by virtue thereof.
SECTION 4.09. Limitation on Liens on Subsidiary Stock.
The Company shall not directly or indirectly create, assume or suffer to
exist, any lien on any Capital Stock of any of its Subsidiaries.
SECTION 4.10. Compliance Certificate. The Company shall
deliver to the Trustee within 120 days after the end of each fiscal year of
the Company (which, as the date of this Indenture, ends on December 31) an
Officers' Certificate, one signer of which shall be the principal financial
officer, principal executive officer or principal accounting officer, stating
that in the course of the performance by the signers of their duties as Officers
of the Company they would normally have knowledge of any Default by the Company
and whether or not the signers know of any Default that occurred during such
period. If they do, the certificate shall describe the Default, its status and
what action the Company is taking or proposes to take with respect thereto. The
Company also shall comply with TIA Section 314(a)(4).
SECTION 4.11. Further Instruments and Acts. Upon request
of the Trustee, the Company shall execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper to
carry out more effectively the purpose of this Indenture.
ARTICLE 5.
Successor Company
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SECTION 5.01. When Company May Merge or Transfer Assets.
The Company shall not consolidate with or merge with or into, or convey,
transfer or lease all or substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (if not the
Company) shall be a Person organized and existing under the laws of the
United Stases of America, any State thereof or the District of Columbia
and such Person shall expressly assume, by an Indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, all the obligations of the Company under the Debentures
and this Indenture;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the resulting,
surviving or transferee Person or any Subsidiary as a result of such
transaction as having been issued by such Person or such Subsidiary at
the time of such transaction), no Default shall have occurred and be
continuing;
(iii) immediately after giving effect to such transaction, the
resulting, surviving or transferee Person would be able to incur an
additional $1.00 of Funded Debt pursuant to Section 4.03(a); and
(iv) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental Indenture (if
any) comply with this Indenture.
The resulting, surviving or transferee Person shall be the
successor Company and shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture, but the predecessor
Company in the case of a conveyance, transfer or lease shall not be released
from the obligation to pay the principal of and interest on the Debentures.
ARTICLE 6.
Defaults and Remedies
SECTION 6.01. Events of Default. An "Event of Default"
occurs if:
(1) the Company defaults in any payment of interest on any
Debenture when the same becomes due and payable, whether or not such
payment shall be prohibited by Article 10, and such Default continues
for a period of 30 days;
(2) the Company (i) defaults in the payment of the principal
of any Debenture when the same becomes due and payable at its Stated
Maturity, upon redemption, upon declaration or otherwise, whether or
not such payment shall be prohibited by Article 10 or (ii) fails to
redeem or purchase Debentures when required pursuant to this Indenture
or
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the Debentures, whether or not such redemption or purchase shall be
prohibited by Article 10;
(3) the Company fails to comply with any of its agreements in
the Debentures or this Indenture (other than those referred to in (1)
or (2) above) and such failure continues for 30 days after the notice
specified below, or if no such notice is given, 30 days after the
Trustee gives notice of such failure;
(4) Indebtedness of the Company or any Significant Subsidiary
is not paid within any applicable grace period after final maturity or
is accelerated by the Holders thereof because of a default, the total
amount of such Indebtedness unpaid or accelerated exceeds $1,000,000 or
its foreign currency equivalent;
(5) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
(C) consents to the appointment of a Custodian of it
or for any substantial part of its property; or
(D) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws relating to insolvency;
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for any substantial part of its
property; or
(C) orders the winding up or liquidation of the
Company or any Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order or
decree remains unstayed and in effect for 60 days; or
(7) any judgment or decree for the payment of money in excess
of $1,000,000 is entered against the Company or any Significant
Subsidiary and is not discharged and either (A) an enforcement
proceeding has been commenced by any creditor upon such
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judgment or decree or (B) there is a period of 60 days following the
entry of such judgment or decree during which such judgment or decree
is not discharged, waived or the execution thereof stayed and, in the
case of (B), such default continues for 10 days after the notice
specified below, or no such notice is given, 30 days after the Trustee
gives notice of such failure.
The foregoing shall constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
The term "Bankruptcy Law" means Title 11, United States Code,
or any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
The Company shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of any event which with the giving of notice and the lapse of time would become
an Event of Default under clause (3) or (7), its status and what action the
Company is taking or proposes to take with respect thereto.
SECTION 6.02. Acceleration. If an Event of Default (other
than an Event of Default specified in Section 6.01(5) or (6) with respect
to the Company) occurs and is continuing, the Trustee by notice to the Company,
or the Holders of at least 25% in principal amount of the Debentures by notice
to the Company and the Trustee, may declare the principal of and accrued
interest on all the Debentures to be due and payable. Upon such a declaration,
such principal and interest shall be due and payable immediately. If an Event of
Default specified in Section 6.01(5) or (6) with respect to the Company occurs,
the principal of and interest on all the Debentures shall ipso facto become and
be immediately due and payable without any declaration or other act on the part
of the Trustee or any Debentureholders. The Holders of a majority in principal
amount of the Debentures by notice to the Trustee may rescind an acceleration
and its consequences if the recission would not conflict with any judgment or
decree and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of
acceleration. No such rescission shall affect any subsequent Default or impair
any right consequent thereto.
SECTION 6.03. Other Remedies. If an Evens of Default
occurs and is continuing, the Trustee may pursue any available remedy to
collect the payment of principal of or interest on the Debentures or to enforce
the performance of any provision of the Debentures or this Indenture.
The Trustee may maintain a proceeding even if is does not
possess any of the Debentures or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Debentureholder in exercising any
right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the
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Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a
majority in principal amount of the Debentures by notice to the Trustee may
waive an existing Default and its consequences except (i) a Default in the
payment of the principal of or interest on a Debenture or (ii) a Default in
respect of a provision that under Section 9.02 cannot be amended without the
consent of each Debentureholder affected. When a Default is waived, it is deemed
cured, but no such waiver shall extend to any subsequent or other Default or
impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a
majority in principal amount of Debentures may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of other Debentureholders or would involve the Trustee in personal
liability; provided, however, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction. Prior to
taking any action hereunder, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
SECTION 6.06. Limitation on Suits. A Debentureholder may
not pursue any remedy with respect to this Indenture or the Debentures unless:
(1) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of the
Debenture make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(5) the Holders of a majority in principal amount of the
Debentures do not give the Trustee a direction inconsistent with the
request during such 60-day period.
A Debentureholder may not use this Indenture to prejudice the
rights of another Debentureholder or to obtain a preference or priority over
another Debentureholder.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of and interest on the Debentures held by
such Holder, on or after the respective due dates
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expressed in the Debentures, or to bring suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of
Default in payment of interest or principal specified in Section 6.01(1) or
(2) occurs and is continuing, the Trustee may recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount of
principal and interest remaining unpaid (together with interest on such unpaid
interest to the extent lawful) and the amounts provided for in Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee and the
Debentureholders allowed in any judicial proceedings relative to the Company,
its creditors or its property and, unless prohibited by law or applicable
regulations, may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions, and any Custodian in
any such judicial proceeding is hereby authorized by each Holder to make
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.07.
SECTION 6.10. Priorities. If the Trustee collects any
money or property pursuant to this Article 6, it shall pay out the money or
property in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to holders of Senior Debt to the extent required by
Article 10;
THIRD: to Debentureholders for amounts due and unpaid on the
Debentures for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable
on the Debentures for principal and interest, respectively; and
FOURTH: to the Company.
The Trustee may fix a record date and payment date for any
payment to Debentureholders pursuant to this Section. At least 15 days before
such record date, the Company shall mail to each Debentureholder and the Trustee
a notice that states the record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, a court in
its discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party
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litigant. This Section does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07 or a suit by Holders of more than 10% in
principal amount of the Debentures.
SECTION 6.12. Waiver of Stay or Extension Laws.
The Company (to the extent it may lawfully do so) shall not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and shall not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE 7.
Trustee
SECTION 7.01. Duties of Trustee. (a) If an Event of
Default has occurred and is continuing, the Trustee shall exercise the
rights and powers vested in it by this Indenture and use the same degree of care
and skill in their exercise as a prudent Person would exercise or use under the
circumstances in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b)
of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
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(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may rely
on any document believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Trustee acts or refrains from acting, is may
require an Officers' Certificate and/or an Opinion of Counsel. The Trustee shall
not be liable for any action it takes or omits to take in good faith in reliance
on the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute willful misconduct, negligence or bad faith.
(e) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Debentures shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
SECTION 7.03. Individual Rights of Trustee. The Trustee in
its individual or any other capacity may become the owner or pledgee of
Debentures and may otherwise deal with the Company or its affiliates with the
same rights it would have if it were not Trustee. Any Paying Agent, Registrar,
co-registrar or co-paying agent may do the same with like rights. However, the
Trustee must comply with Sections 7.10 and 7.11.
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SECTION 7.04. Trustee's Disclaimer. The Trustee shall not
be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Debentures, it shall not be accountable for
the Company's use of the proceeds from the Debentures, and it shall not be
responsible for any statement of the Company in the Indenture or in any document
issued in connection with the sale of the Debentures or in the Debentures other
than the Trustee's certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default occurs and
is continuing and if it is known to the Trustee, the Trustee shall mail to
each Debentureholder notice of the Default within 90 days after it occurs.
Except in the case of a Default in payment of principal of or interest on any
Debenture (including payments pursuant to the mandatory redemption provisions of
such Debenture), the Trustee may withhold the notice if and so long as a
committee of its Trust Officers in good faith determines that withholding the
notice is in the interests of Debentureholders.
SECTION 7.06. Reports by Trustee to Holders. As promptly
as practicable after each May 15 beginning with the May 15 following the
date of this Indenture, and in any event prior to July 15 in each year, the
Trustee shall mail to each Debentureholder a brief report dated as of May 15
that complies with, and to the extent required under, TIA Section 313(a). The
Trustee also shall comply with TIA Section 313(b), to the extent applicable.
A copy of each report at the time of its mailing to
Debentureholders shall be filed with the SEC and each stock exchange (if any) on
which the Debentures are listed. The Company agrees to notify promptly the
Trustee whenever the Debentures become listed on any stock exchange and of any
delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Company
shall pay to the Trustee from time to time reasonable compensation for its
services. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses incurred or made
by it, including costs of collection, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents, counsel, accountants and
experts. The Company shall indemnify the Trustee against any and all loss,
liability or expense (including attorneys' fees) incurred by it in connection
with the administration of this trust and the performance of its duties
hereunder. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. Failure by the Trustee to so notify the Company shall
relieve the Company of its obligations hereunder. The Company shall defend the
claim and the Trustee may have separate counsel and the Company shall pay the
fees and expenses of such counsel. The Company need not reimburse any expense or
indemnify against any loss, liability or expense incurred by the Trustee through
the Trustee's own willful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Debentures on all money or property
held or collected by the Trustee
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other than money or property held in trust to pay principal of and interest
on particular Debentures.
The Company's payment obligations pursuant to this Section
shall survive the discharge of this Indenture. When the Trustee incurs expenses
after the occurrence of a Default specified in Section 6.01(5) or (6) with
respect to the Company, the expenses are intended to constitute expenses of
administration under the Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may
resign at any time by to notifying the Company. The Holders of a majority
in principal amount of the Debentures may remove the Trustee by so notifying the
Trustee and may appoint a successor Trustee. The Company shall remove the
Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of a succession
to Debentureholders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the lien provided for
in Section 7.07.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of a majority in principal amount of the Debentures may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any
Debentureholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to
this Section, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
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SECTION 7.09. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Debentures shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor Trustee, and deliver such Debentures so
authenticated; and in case at that time any of the Debentures shall not have
been authenticated, any successor to the Trustee may authenticate such
Debentures either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Debentures or in this Indenture provided
that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification.
The Trustee shall at all times satisfy the requirements of TIA Section
310(a). The Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA Section 310(b); provided,
however, that there shall be excluded from the operation of TIA Sections
310(b)(1) any Indenture or Indentures under which other Debentures or
certificates of interest or participation in other Debentures of the Company are
outstanding, including but not limited to the Indenture, dated as of July 1,
1984, between the Company and the Trustee, as amended, relating to the Company's
11.4% Subordinated Notes due 1993 and the Indenture, dated as of October 1,
1985, between the Company and the Trustee, as amended, relating to the Company's
14.275% Subordinated Notes due 1995, if the requirements for such exclusion set
forth in TIA Section 310(b)(l) are met.
SECTION 7.11. Preferential Collection of Claims Against
Company. The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE 8.
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Debentures:
Defeasance. (a) When (i) the Company delivers to the Trustee all
outstanding Debentures (other than Debentures replaced pursuant to Section 2.07)
for cancellation or (ii) all outstanding Debentures have become due and payable
and the Company irrevocably deposits with the Trustee funds sufficient to pay at
maturity all outstanding Debentures, including interest thereon (other than
Debentures replaced pursuant to Section 2.07), and if in either case the Company
pays all other sums payable hereunder by the Company, then this Indenture shall,
subject to Sections 8.01(c) and 8.06 cease
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to be of further effect. The Trustee shall acknowledge satisfaction and
discharge of this Indenture on demand of the Company accompanied by an Officers'
Certificate and an Opinion of Counsel and at the cost and expense of the
Company.
(b) Subject to Sections 8.01(c), 8.02 and 8.06, the Company at
any time may terminate (i) all its obligations under the Debentures and this
Indenture ("legal defeasance option") or (ii) its obligations under Sections
4.03, 4.04, 4.05, 4.06, 4.07, 4.03, 4.09 and 5.01(iii) and the operation of
Sections 6.01(3), 6.01(4), 6.01(5) and (6) (in the case of clauses (5) and (6),
only with respect to Significant Subsidiaries) and 6.01(7) ("covenant defease
option"). The Company may exercise its legal defeasance option notwithstanding
its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment
of the Debentures may not be accelerated because of an Event of Default. If the
Company exercises its covenant defeasance option, payment of the Debentures may
not be accelerated because of an Event of Default specified in 6.01(3), 6.01(4).
6.01(5) and (6) (with respect to Significant Subsidiaries) and 6.01(7) or
because of the failure of the Company to comply with Article 4 of this Agreement
(other than Sections 4.01, 4.02, 4.10 and 4.11) or with clause (iii) of Section
5.01.
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.03. 2.04, 2.05, 2.06, 2.07, 7.07, 7.08, 8.04, 8.05 and
8.06 shall survive until the Debentures have been paid in full. Thereafter, the
Company's obligations in Sections 7.07, 8.04 and 8.05 shall survive.
SECTION 8.02. Conditions to Defeasance. The Company may
exercise its legal defeasance option or its covenant defeasance option only
if:
(1) the Company irrevocably deposits in trust with the Trustee
money or U.S. Government Obligations for the payment of principal and
interest on the Debentures to maturity or redemption, as the case may
be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government Obligations plus
any deposited money without investment will provide cash at such times
and in such amounts as will be sufficient to pay principal and interest
when due on all the Debentures to maturity or redemption, as the case
may be;
(3) unless a notice of redemption shall have been mailed
pursuant to Section 3.03 and other arrangements satisfactory to the
Trustee for such redemption shall have been made, 123 days pass after
the deposit is made and during the 123-day period no
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Default specified in Section 6.01(5) or (6) with respect to the Company
occurs which is continuing at the end of the period;
(4) no Default has occurred and is continuing on the date of
such deposit and after giving effect thereto;
(5) the deposit does not constitute a default under any other
agreement binding on the Company and is not prohibited by Article 10;
(6) the Company delivers to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under
the Investment Company Act of 1940;
(7) in the case of legal defeasance option, the Company shall
have delivered to Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since February 3, 1994 there has been
a change in the applicable federal income tax law, in either case to
the effect that and based thereon such Opinion of Counsel shall confirm
that, due Debentureholders will not recognize income, gain or loss for
federal income tax purposes as a result of such defeasance and will be
subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such defeasance
had not occurred;
(8) in the case of the covenant defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Debentureholders will not recognize income, gain or loss for
federal income tax purposes as a result of such covenant defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
covenant defeasance had not occurred; and
(9) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Debentures as
contemplated by this Article 8 have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Debentures at a future date in
accordance with Article 3.
SECTION 8.03. Application of Trust Money. The Trustee
shall hold in trust money or U.S. Government Obligations deposited with it
pursuant to this Article 8. It shall apply the deposited money and the money
from U.S. Government Obligations through the Paying Agent and in accordance with
this Indenture to the payment of principal of and interest on the Debentures.
Money and Debentures to held in trust are not subject to Article 10.
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SECTION 8.04. Repayment to the Company. The Trustee and
the Paying Agent shall promptly turn over to the Company upon request any
excess money or Debentures held by them at any time.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Company upon request any money held by
them for the payment of principal or interest that remains unclaimed for two
years, and, thereafter, Debentureholders entitled to the money must look to the
Company for payment as general creditors and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as paying agent thereof in the event that the Company shall at such time
be serving as the paying agent, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make such repayment,
may at the expense of the Company mail to each such Holder notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such mailing, any unclaimed balance of
such money remaining shall be repaid to the Company.
SECTION 8.05. Indemnity for Government Obligations.
The Company shall pay and shall indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against deposited U.S. Government
Obligations or the principal and interest received on such U.S. Government
Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying
Agent is unable to apply any money or U.S. Government Obligations in
accordance with this Article 8 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Debentures shall be revived and reinstated as
though no deposit had occurred pursuant to this Article 8 until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article S; provided, however, that, if the
Company has made any payment of interest on or principal of any Debentures
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of Holders of such Debentures to receive such payment from the
money of U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE 9.
Amendments
SECTION 9.01. Without Consent of Holders. The Company when
authorized by a resolution of the Board of Directors of the Company and the
Trustee may amend this Indenture or the Debentures without notice to or consent
of any Debentureholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5;
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(3) to provide for uncertificated Debentures in addition to or
in place of certificated Debentures; provided, however, that the
uncertificated Debentures are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Debentures are described in Section 163(f)(2)(B) of the Internal Code;
(4) to make any change in Article 10 that would limit or
terminate the benefits available to any holder of Senior Debt (or
Representatives therefor) under Article 10;
(5) to add guarantees with respect to the Debentures or to
secure the Debentures;
(6) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred upon
the Company;
(7) to comply with any requirements of the SEC in connection
with qualifying this Indenture under the TIA; or
(8) to make any change that does not adversely affect the
rights of any Debentureholder.
An amendment under this Section may not make any change that
adversely affects the rights under Article 10 of any holder of Senior Debt then
outstanding unless the holders of such Senior Debt (or any group or
representative thereof authorized to give a consent) consent to such change.
After an amendment under this Section becomes effective, the
Company shall mail to Debentureholders a notice briefly describing such
amendment. The failure to give such notice to all Debentureholders, or any
defect therein, shall not impair or affect the validity of an amendment under
this Section.
SECTION 9.02. With Consent of Holders. The Company when
authorized by a resolution of the Board of Directors of the Company and the
Trustee may amend this Indenture or the Debentures without notice to any
Debentureholder but with the written consent of the Holders of at least a
majority in principal amount of the Debentures; provided, however, that no
amendment may be made to Section 4.08 without the written consent of the Holders
of at least 66 2/3% in principal amount of the Debentures. However, without the
consent of each Debentureholder affected, an amendment may not:
(1) reduce the amount of Debentures whose Holders must consent
to an amendment;
(2) reduce the rate of or extend the time for payment of
interest on any Debenture;
(3) reduce the principal of or extend the Stated Maturity of
any Debenture;
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(4) reduce the premium payable upon the redemption of any
Debenture or change the time at which any Debenture may be redeemed in
accordance with Article 3;
(5) make any Debenture payable in money other than that stated
in the Debenture;
(6) impair the right of any Holder to receive payment of
principal of and interest on such Holder's Debentures on or after the
due dates therefor or to institute suit for the enforcement of any
payment on or with respect to such Holder's Debentures;
(7) make any change in Article 10 that adversely affects the
rights of an Debentureholder under Article 10; or
(8) make any change in Section 6.04 or 6.07 or the second
sentence of this Section.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
An amendment under this Section may not make any change that
adversely affects the rights under Article 10 of any holder of Senior Debt then
outstanding unless the holders of such Senior Debt (or any group or
representative thereof authorized to give a consent) consent to such change.
After an amendment under this Section becomes effective, the
Company shall mail to Debentureholders a notice briefly describing such
amendment. The failure to give such notice to all Debentureholders, or any
defect therein, shall not impair or affect the validity of an amendment under
this Section.
SECTION 9.03. Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Debentures shall comply with the
TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents and
Waivers. A consent to an amendment or a waiver by a Holder of a Debenture
shall bind the Holder and every subsequent Holder of that Debenture or portion
of the Debenture that evidences the same debt as the consenting Holder's
Debenture, even if notation of the consent or waiver is not made on the
Debenture. However, any such Holder or subsequent Holder may revoke the consent
or waiver as to such Holder's Debenture or portion of the Debenture if the
Trustee receives the notice of revocation before the date the or waiver becomes
effective. After an amendment or waiver becomes effective, it shall bind every
Debentureholder.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Debentureholders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date
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is fixed, then notwithstanding the immediately preceding paragraph, those
Persons who were Debentureholders at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to give such consent or to
revoke any consent previously given or to take any such action, whether or not
such Persons continue to be Holders after such record date. No such consent
shall be valid or effective for more than 120 days, after such record date.
SECTION 9.05. Notation on or Exchange of Debentures.
If an amendment changes the terms of a Debenture, the Trustee may require
the Holder of the Debenture to deliver it to the Trustee. The Trustee may place
an appropriate notation on the Debenture regarding the changed terms and return
it to the Holder. Alternatively, if the Company or the Trustee so determines,
the Company in exchange for the Debenture shall issue and the Trustee shall
authenticate a new Debenture that reflects the changed terms. Failure to make
the appropriate notation or to issue a new Debenture shall not affect the
validity of such amendment.
SECTION 9.06. Trustee to Sign Amendments. The Trustee shall
sign any amendment authorized pursuant to this Article 9 if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture.
SECTION 9.07. Payment for Consent. Neither the Company,
any Affiliate of the Company nor any Subsidiary shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this Indenture
or the Debentures unless such consideration is offered to be paid or agreed to
be paid to all Holders which to consent, waive or agree to amend in the time
frame set forth in solicitation documents relaxing to such consent, waiver or
agreement.
ARTICLE 10.
Subordination
SECTION 10.01. Agreement to Subordinate. The Company
agrees, and each Debentureholder by accepting a Debenture agrees, that the
Indebtedness evidenced by the Debentures is subordinated in right of payment, to
the extent and in the manner provided in this Article 10, to the prior payment
of all Senior Debt and that the subordination is for the benefit of and
enforceable by the holders of Senior Debt. Only Indebtedness of the Company
which is Senior Debt shall rank senior to the Debentures in accordance with the
provisions set forth herein. All provisions of this Article 10 shall be subject
to Section 10.12.
SECTION 10.02. Liquidation, Dissolution, Bankruptcy. Upon
any payment or distribution of the assets of the Company to auditors upon a
total or partial liquidation or a
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total or partial dissolution of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Company or its property:
(1) holders of Senior Debt shall be entitled to receive
payment in full of the Senior Debt before Debentureholders shall be
entitled to receive any payment of principal of, or premium, if any, or
interest on the Debentures; and
(2) until the Senior Debt is paid in full, any distribution to
which Debentureholders would be entitled but for this Article 10 shall
be made to holders of Senior Debt as their interests may appear, except
that Debentureholders may receive shares of stock and any debt
securities that are subordinated to Senior Debt to at least the same
extent as the Debentures.
For purposes of this Section "payment in full", as used with respect to Senior
Debt, means the receipt of cash or securities (taken at their fair value at the
time of receipt, determined as hereinafter provided) of the principal amount of
the Senior Debt and premium, if any, and interest thereon to the date of such
payment. "Fair value" means (a) if the Debentures are quoted on a nationally
recognized securities exchange, the closing price on the day such Debentures are
received or, if there are no sales reported on that day, the reported closing
bid price on that day, and (b) if the Debentures are not so quoted, a price
determined by a nationally recognized investment banking house selected by the
Debentureholders and the holders of Senior Debt receiving such securities, such
price to be determined as of the date of receipt of such securities by the
holders of Senior Debt.
SECTION 10.03. Default on Senior Debt. The Company may not
pay the principal of, premium, if any, or interest on, the Debentures or
make any deposit pursuant to Section 8.01 and may not repurchase, redeem or
otherwise retire any Debentures (collectively, "pay the Debentures") if (i) any
Designated Senior Debt is not paid when due or (ii) any other default on
Designated Senior Debt occurs and the maturity of such Designated Senior Debt is
accelerated in accordance with its terms unless, in either case, (x) the default
has been cured or waived and any such acceleration has been rescinded or (y)
such Designated Senior Debt has been paid in full; provided, however, that the
Company may pay the Debentures without regard to the foregoing if the Company
and the Trustee receive written notice approving such payment from the
Representative of each issue of Designated Senior Debt. During the continuance
of any default (other than a default described in clause (i) or (ii) of the
preceding sentence) with respect to any Designated Senior Debt pursuant to which
the maturity thereof may be accelerated immediately without further notice
(except such notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods, the Company may not pay the
Debentures for a period (a "Payment Blockage Period") commencing upon the
receipt by the Company and the Trustee of written notice of such default from
the Representative of the Bank Debt or a Representative of the holders of any
Designated Senior Debt specifying an election to effect a Payment Blockage
Period (a "Payment Blockage Notice") and ending 179 days thereafter (or earlier
if such Payment Blockage Period is terminated (i) by written notice to the
Trustee and the Company from the Representative which gave such Payment Blockage
Notice,
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(ii) by repayment in full of such Designated Senior Debt or (iii)
because the default specified in such Payment Blockage Notice is no longer
continuing). Notwithstanding the provisions described in the immediately
preceding sentence (but subject to the provisions contained in the first
sentence of this Section), unless the holders of such Designated Senior Debt or
the Representative of such holders shall have accelerated the maturity of such
Designated Senior Debt, the Company may resume payments on the Debentures after
the end of such Payment Blockage Period. Not more than one Payment Blockage
Notice may be given in any consecutive 360-day period, irrespective of the
number of defaults with respect to Designated Senior Debt during such period.
SECTION 10.04. Acceleration of Payment of Debentures.
If payment of the Debentures is accelerated because of an Event of Default,
the Company or the Trustee shall promptly notify the holders of the Designated
Senior Debt or their representatives of the acceleration.
SECTION 10.05. When Distribution Must Be Paid Over.
If a distribution is made to Debentureholders that because of this Article
10 should not have been made to them, the Debentureholders who receive the
distribution shall hold it in trust for holders of Senior Debt and pay it over
to them as their interests may appear.
SECTION 10.06. Subrogation. After all Senior Debt is paid
in full and until the Debentures are paid in full, Debentureholders shall
be subrogated to the rights of holders of Senior Debt to receive distributions
applicable to Senior Debt. A distribution made under this Article 10 to holders
of Senior Debt which otherwise would have been made to Debentureholders is not,
as between the Company and Debentureholders, a payment by the Company on Senior
Debt.
SECTION 10.07. Relative Rights. This Article 10 defines the
relative rights of Debentureholders and holders of Senior Debt. Nothing in
this Indenture shall:
(1) impair, as between the Company and Debentureholders, the
obligation of the Company, which is absolute and unconditional, to pay
principal of, premium, if any, and interest on the Debentures in
accordance with their terms; or
(2) prevent the Trustee or any Debentureholder from exercising
its available remedies upon a Default, subject to the rights of holders
of Senior Debt to receive distributions otherwise payable to
Debentureholders.
SECTION 10.08. Subordination May Not Be Impaired by
Company. No right of any holder of Senior Debt to enforce the subordination
of the Indebtedness evidenced by the Debentures shall be impaired by any act or
failure to act by the Company or by its failure to comply with this Indenture.
SECTION 10.09. Rights of Trustee and Paying Agent.
Notwithstanding Section 10.03, the Trustee or Paying Agent may continue to
make payments on the Debentures
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and shall not be charged with knowledge of the existence of facts that
would prohibit the making of any such payments unless, not less than two
Business Days prior to the date of such payment, a Trust Officer of the Trustee
receives notice satisfactory to it that payments may not be made under this
Article 10. The Company, the Registrar or co-registrar, the Paying Agent, a
Representative or a holder of Senior Debt may give the notice; provided,
however, that, if an issue of Senior Debt has a Representative, only the
Representative may give the notice.
The Trustee in its individual or any other capacity may hold
Senior Debt with the same rights it would have if it were not Trustee. The
Registrar and co-registrar and the Paying Agent may do the same with like
rights. The Trustee shall be entitled to all the rights set forth in this
Article 10 with respect to any Senior Debt which may at any time be held by it,
to the same extent as any other holder of Senior Debt, and nothing in Article 7
shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article 10 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.07.
SECTION 10.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative (if any).
SECTION 10.11. Article 10 Not to Prevent Events of Default
or Limit Right to Accelerate. The failure to make a payment pursuant to the
Debentures by reason of any provision in this Article 10 shall not be construed
as preventing the occurrence of a Default. Nothing in this Article 10 shall have
any effect on the right of the Debentureholders or the Trustee to accelerate the
maturity of the Debentures.
SECTION 10.12. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments from
money or the proceeds of U.S. Government Obligations held in trust under Article
8 by the Trustee for the payment of principal of and interest on the Debentures
shall not be subordinated to the prior payment of any Senior Debt or subject to
the restrictions set forth in this Article 10, and none of the Debentureholders
shall be obligated to pay over any such amount to the Company or any holder of
Senior Debt of the Company or any other creditor of the Company.
SECTION 10.13. Trustee Entitled To Rely. Upon any payment
or distribution pursuant to this Article 10, the Trustee and the
Debentureholders shall be entitled to rely (i) upon any order or decree of a
court of competent jurisdiction in which any proceedings of the nature referred
to in Section 10.02 are pending,, (ii) upon a certificate of the liquidating
trustee or agent or other Person making such payment or distribution to the
Trustee or to the Debentureholders or (iii) upon the Representatives for the
holders of Senior Debt for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior Debt and
other Indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this
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Article 10. In the event that the Trustee determines, in good faith, that
evidence is required with respect to the right of any Person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article 10, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and other facts pertinent to the rights of such Person
under this Article 10, and, if such evidence is not furnished, the Trustee may
defer any payment to such Person pending judicial determination as to the right
of such Person to receive such payment. The provisions of Sections 7.01 and 7.02
shall be applicable to all actions or omissions of actions by the Trustee
pursuant to this Article 10.
SECTION 10.14. Trustee To Effectuate Subordination.
Each Debentureholder by accepting a Debenture authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination between the Debentureholders and the
holders of Senior Debt as provided in this Article 10 and appoints the Trustee
as attorney-in-fact for any and all such purposes.
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior
Debt. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt and shall not be liable to any such holders if it shall
mistakenly pay over or distribute to Debentureholders or the Company or any
other Person, money or assets to which any holders of Senior Debt shall be
entitled by virtue of this Article 10 or otherwise.
SECTION 10.16. Reliance by Holders of Senior Debt on
Subordination Provisions. Each Debentureholder by accepting a Debenture
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of my Senior
Debt, whether such Senior Debt was created or acquired before or after the
issuance of the Debentures, to acquire and continue to hold, or to continue to
hold, such Senior Debt and such holder of Senior Debt shall be deemed
conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior Debt.
ARTICLE 11.
Miscellaneous
SECTION 11.01. Trust Indenture Act Controls. If any
provision of this Indenture limits, qualifies or conflicts with another
provision which is required to be included in this Indenture by the TIA, the
required provision shall control.
SECTION 11.02. Notices. Any notice or communication shall
be in writing and delivered in Person or mailed by first-class mail
addressed as follows:
if to the Company:
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Petroleum Heat and Power Co., Inc.
2187 Atlantic Street
Stamford, CT 06902
Attention of Treasurer
if to the Trustee:
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Attention of Corporate Trust Administration
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Debentureholder shall
be mailed to the Debentureholder at the Debentureholder's address as it appears
on the registration books of the Registrar and shall be sufficiently given if to
mailed within the time prescribed.
Failure to mail a notice or communication to a Debentureholder
or any defect in it shall not affect its sufficiency with respect to other
Debentureholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 11.03. Communication by Holders with Other Holders.
Debentureholders may communicate pursuant to TIA Section 312(b) with other
Debentureholders with respect to their rights under this Indenture or the
Debentures. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 11.04. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to
take or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent, if my, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
50
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SECTION 11.05. Statements Required in Certificate or
Opinion. Each certificate or opinion with respect to compliance with a
covenant or condition provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
Person, such covenant or condition has been complied with.
SECTION 11.06. When Debentures Disregarded. in determining
whether the Holders of the required principal amount of Debentures have
concurred in any direction, waiver or consent, Debentures owned by the Company
or by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company shall be disregarded and
deemed not to be outstanding, except that, for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Debentures which the Trustee knows are to owned shall be to
disregarded. Also, subject to the foregoing, only Debentures outstanding at the
time shall be considered in any such determination.
SECTION 11.07. Rules by Trustee, Paying Agent and
Registrar. The Trustee may make reasonable rules for action by or a meeting
of Debentureholders. The Registrar and the Paying Agent may make reasonable
rules for their functions.
SECTION 11.08. Governing Law. This indenture and the
Debentures shall be governed by, and construed in accordance with, the laws
of the State of New York but without giving effect to applicable principles of
conflicts of law to the extent that the application of the laws of another
jurisdiction would be required thereby.
SECTION 11.09. No Recourse Against Others. A director,
officer, employee or stockholder, as such, of the Company shall not have
any liability for any obligations of the Company under the Debentures or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Debenture, each Debentureholder
shall waive and release all such liability. The waiver and release shall be part
of the consideration for the issue of the Debentures.
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SECTION 11.10. Successors. All agreements of the Company in
this Indenture and the Debentures shall bind its successors. All agreements
of the Trustee in this Indenture shall bind its successors.
SECTION 11.11. Multiple Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement. One signed copy is enough
to prove this Indenture.
SECTION 11.12. Table of Contents; Headings. The table of
contents and headings of the Articles and Sections of this Indenture have
been inserted for convenience of reference only, are not intended to be
considered a part hereof and shall not modify or restrict any of the terms or
provisions hereof.
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IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
PETROLEUM HEAT AND POWER CO., INC.
By:
-----------------------------------------
Name:
Title:
The Chase Manhattan Bank, as Trustee,
By:
-----------------------------------------
Name:
Title:
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EXHIBIT A
(FORM OF FACE OF DEBENTURE)
No. $_________
9 3/8% Senior Subordinated Debenture Due 2006
Petroleum Heat and Power Co., Inc., a Minnesota corporation,
promises to pay to ____________________ or registered assigns, the principal sum
of ____________ Dollars on February 1, 2006.
Interest Payment Dates: February 1 and August 1.
Record Dates: January 15 and July 15.
Additional Provisions of this Debenture are set forth on the
other side of this Debenture.
Dated:
PETROLEUM HEAT AND POWER CO., INC.,
by
---------------------------------------
Chief Executive Officer
[Seal]
---------------------------------------
Secretary
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Debentures referred to in the within
mentioned Indenture.
The Chase Manhattan Bank
by
----------------------------
Authorized Officer
<PAGE>
[FORM OF REVERSE SIDE OF DEBENTURE]
9 3/8% Senior Subordinated Debenture due 2006
1. Interest
Petroleum Heat and Power Co., Inc., a Minnesota corporation
(such corporation, and its successors and assigns under the Indenture
hereinafter referred to, being herein called the "Company"), promises to pay
interest on the principal amount of this Debenture at the rate per annum shown
above. The Company shall pay interest semiannually in arrears on February 1 and
August 1 of each year, commencing February 1, 1999. Interest on the Debentures
shall accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from ________ ___, 1998. Interest shall be computed on
the basis of a 360-day year of twelve 30-day months. The Company shall pay
interest on overdue principal at the rate borne by the Debentures plus 1% per
annum, and it shall pay interest on overdue installments of interest at the same
rate to the extent lawful.
2. Method of Payment
The Company shall pay interest on the Debentures (except
defaulted interest) to the Persons who are registered Holders of Debentures
at the close of business on the January 15 or July 15 next preceding the
interest payment date even if Debentures are canceled after the record date
and on or before the interest payment date. Holders must surrender Debentures
to a Paying Agent to collect principal payments. The Company shall pay
principal and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts. However, the
Company may pay principal and interest by check payable in such money. It may
mail an interest check to a Holder's registered address.
3. Paying Agent and Registrar
Initially, The Chase Manhattan Bank, a New York banking
corporation ("Trustee"), shall act as Paying Agent and Registrar. The Company
may appoint and change any Paying Agent, Registrar or co-Registrar without
notice. The Company or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Debentures under an Indenture dated
as of August ___, 1998 ("Indenture") between the Company and the Trustee. The
terms of the Debentures include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 (15
U.S.C. Sections 77aaa-77bbbb) as amended and in effect on February 3, 1994
(the "Act"). Capitalized terms used herein and not defined herein have the
meanings ascribed thereto in the Indenture. The Debentures are subject to all
such terms, and Debentureholders are referred to the Indenture and the Act
for a statement of those terms.
A-2
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The Debentures are general unsecured obligations of the
Company limited to $75,000,000 aggregate principal amount (subject to Section
2.07 of the Indenture). The Indenture imposes certain limitations on the
issuance of debt by the Company, the issuance of debt and preferred stock by the
Subsidiaries, the creation of liens on the Capital Stock of any Subsidiary, the
payment of dividends and other distributions and acquisitions of the Company's
Capital Stock and Subordinated Indebtedness, certain investments and certain
transactions with Affiliates. In addition, the Indenture limits the ability of
the Company and the Subsidiaries to restrict distributions and dividends from
Subsidiaries.
5. Optional Redemption
The Debentures may not be redeemed prior to February 1, 1999.
On and after that date, the Company may redeem the Debentures in whole at any
time or in part from time to time at the following redemption prices (expressed
in percentages of principal amount), plus accrued interest to the redemption
date:
If redeemed during the 12-month period beginning February 1,
<TABLE>
<CAPTION>
Year Percentage
<S> <C>
1999................................................. 104.688%
2000................................................. 103.516
2001................................................. 102.344
2002................................................. 101.172
2003 and thereafter.................................. 100.000
</TABLE>
In addition, at any time prior to 5:00 p.m. eastern standard
time on April 1, 1999, the Company may redeem any portion of the Debentures
issued under the Indenture at a redemption price of 100.0% of the principal
amount thereof, plus accrued and unpaid interest thereon, provided that (i) the
Company shall substantially simultaneously consummate the Star Gas Transaction,
and (ii) in connection with the Star Gas Transaction, each Share shall be
converted into 0.13064 Units.
6. Notice of Redemption
Notice of redemption shall be mailed at least 30 days but not
more than 60 days before the redemption date to each Holder of Debentures to be
redeemed at his registered address. Debentures in denominations larger than
$1,000 may be redeemed in part but only in whole multiples of $1,000. If money
sufficient to pay the redemption price of and accrued interest on all Debentures
(or portions thereof) to be redeemed on the redemption date is deposited with
the Paying Agent on or before the redemption date and certain other conditions
are satisfied, on and after such date interest ceases to accrue on such
Debentures (or such portions thereof) called for redemption.
A-3
<PAGE>
7. Offer to Purchase Upon a Change of Control
Upon the occurrence of a Change of Control, each Holder of
Debentures shall have the right to require the Company to repurchase all or any
part of such Holder's Debentures at a repurchase price equal to 101% of the
principal amount thereof plus accrued and unpaid interest, if any, to the date
of repurchase.
8. Subordination
The Debentures are subordinated to Senior Debt, as defined in
the Indenture. To the extent provided in the Indenture, Senior Debt must be paid
before the Debentures may be paid. The Company agrees, each Holder by accepting
a Debenture agrees, to the subordination provisions contained in the Indenture
and authorizes the Trustee to give it effect and appoints the Trustee as
attorney-in-fact for such purpose.
9. Denominations; Transfer; Exchange
The Debentures are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Debentures in accordance with the Indenture. The Registrar may require
a Holder, among other things, to furnish appropriate endorsements or transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not register the transfer of or exchange any
Debentures selected for redemption (except, in the case of a Debenture to be
redeemed in part the portion of the Debenture not to be redeemed) or any
Debentures for a period of 15 days before a selection of Debentures to be
redeemed or 15 days before an interest payment date.
10. Persons Deemed Owners
The registered Holder of this Debenture may be treated as the
owner of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
12. Defeasance
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Debentures and the Indenture
if the Company deposits with the Trustee money or U.S. Government Obligations
for the payment of principal and interest on the Debentures to redemption or
maturity, as the case may be.
A-4
<PAGE>
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Debentures may be amended with the written consent of the
Holders of at least a majority in principal amount outstanding of the Debentures
and (ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in principal amount outstanding of
the Debentures. Subject to certain exceptions set forth in the Indenture,
without the consent of any Holder, the Company and the Trustee may amend the
Indenture or the Debentures to cure any ambiguity, omission, defect or
inconsistency, or to comply with Article 5 of the Indenture, or to provide for
uncertificated Debentures in addition to or in place of certificated Debentures,
or to add guarantees with respect to the Debentures or to secure the Debentures,
or to add covenants for the benefit of Holders or surrender rights and powers
conferred on the Company, or to comply with any requirements of the SEC in
connection with qualifying the Indenture under the Act, or to make certain
changes in the subordination provisions, or to make any change that does not
adversely affect the rights of any Holder.
14. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for
30 days in payment of interest on the Debentures; (ii) default in payment of
principal on the Debentures at maturity, upon redemption pursuant to paragraph 5
hereof, upon declaration or otherwise, or failure by the Company to purchase
Debentures when required; (iii) failure by the Company to comply with other
agreements in the Indenture or the Debentures, in certain cases subject to
notice and lapse of time; (iv) certain accelerations (including failure to pay
within any grace period after final maturity) of other Debt of the Company or
any Significant Subsidiary if the amount accelerated (or so unpaid) exceeds
$1,000,000; (v) certain events of bankruptcy or insolvency with respect to the
Company or any Significant Subsidiary; and (vi) certain judgments or decrees for
the payment of money in excess of $1,000,000. If an Event of Default occurs and
is continuing, the Trustee or the Holders of at least 25% in principal amount of
the Debentures may declare all the Debentures to be due and payable immediately.
Certain events of bankruptcy or insolvency are Events of Default which shall
result in the Debentures being due and payable immediately upon the occurrence
of such Events of Default.
Debentureholders may not enforce the Indenture or the
Debentures except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Debentures unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in principal
amount of the Debentures may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Debentureholders notice of any continuing
Default (except a Default in payment of principal or interest) if is determines
that withholding notice is in their interest.
15. Trustee Dealing with the Company
A-5
<PAGE>
Subject to certain limitations imposed by the Act, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Debentures and may otherwise deal with and collect
obligations owed to is by the Company or its affiliates and may otherwise deal
with the Company or its affiliates with the same rights it would have if it were
not Trustee.
16. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company or the Trustee shall not have any liability for any obligations of the
Company under the Debentures or the Indenture or for any claim based on, in
respect of such obligations or their creation. By accepting a Debenture, each
Debentureholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Debentures.
17. Authentication
Customary abbreviations may be used in the name of a Holder or
an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with rights of survivorship and not as
tenants in common), CUST (= custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
18. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Debenture Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Debentures and has directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Debentureholders. No
representation is made as to the accuracy of such numbers either as printed on
the Debentures or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Company shall furnish to any Debentureholder upon written
request and without charge to the Debentureholder a copy of the Indenture which
has in it the text of this Debenture in larger type. Requests may be made to:
Petroleum Heat and Power Co., Inc.
2187 Atlantic Street
Stamford, CT 06902
Attention of:
Treasurer
A-6
<PAGE>
- --------------------------------------------------------------------------------
ASSIGNMENT FORM
To assign this Debenture, fill in the form below:
I or we assign and transfer this Debenture to
(Print or type assignee's name, address and zip code)
(insert assignee's social security or tax ID No.)
and irrevocably appoint ______________________________ agent to transfer this
Debenture on the books of the Company. The agent may substitute another to act
for him.
- --------------------------------------------------------------------------------
Date:______________________ Your Signature:_____________________________
- --------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Debenture.
A-7
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Debenture purchased by the
Company pursuant to Section 4.08 of the Indenture, check the box:
/ /
If you want to elect to have only part of this Debenture
purchased by the Company pursuant to Section 4.08 of the Indenture, state the
amount:
$___________________________
Date:______________________ Your Signature: ________________________________
(Sign exactly as your name
appears on the other side of the
Debenture)
Signature Guarantee: ___________________________________________________________
(Signature must be guaranteed by a member firm of
the New York Stock Exchange or a commercial bank or
trust company)
A-8
<PAGE>
Exhibit B
CONTACT:
Star Gas: Richard F. Ambury
Vice President-Finance
203-328-7313
Robert L. Rinderman
David C. Collins
Jaffoni & Collins Incorporated
212/835-8500 or [email protected]
------------------
Petro: George Leibowitz
Treasurer
203/325-5470
Jim Bottiglieri
Vice President and Controller
203/325-5460
FOR IMMEDIATE RELEASE
STAR GAS PARTNERS, L.P. AND PETROLEUM HEAT AND POWER CO., INC.
ANNOUNCE AGREEMENT IN PRINCIPLE TO COMBINE
STAMFORD, CT (August 14, 1998) -- Star Gas Partners, L.P., ("Star" or the
"Partnership") (NYSE:SGU) and Petroleum Heat and Power Co., Inc. ("Petro" or
the "Company") (NASDAQ:HEAT), jointly announced today that they have reached
an agreement in principle to enter into a strategic business combination in
which Petro would become a wholly-owned subsidiary of Star. This transaction
would be effected through Petro shareholders exchanging their approximately
26.6 million shares of Petro Common Stock for approximately 3.6 million Star
master limited partnership units which will be subordinated to the existing
Star Common Units.
Star Gas currently distributes to its partners, on a quarterly basis, all of
its Available Cash, which is generally all of the cash receipts of the
Partnership less all cash disbursements, with a targeted Minimum Quarterly
Distribution ("MQD") of $0.55 per Unit, or $2.20 per Unit on an annualized
basis. In connection with the Petro transaction, the Partnership will
increase the MQD to $.575 per unit or $2.30 per Unit on an annualized basis.
This increase in the MQD reflects the expectation that the transaction will
be accretive to the Partnership. The increase in the MQD will also serve to
raise the threshold needed to end the subordination period.
Of the 3.6 million subordinated Partnership units anticipated to be
distributed to Petro shareholders, 2.8 million will be Senior Subordinated
Units and approximately 857,000 will be Junior Subordinated Units and General
Partnership Interests. The Senior Subordinated Units will be publicly
registered and tradable (they are expected to be listed on the NYSE) and will
be subordinated in distributions to Star's Common Units. The Junior
Subordinated Units and General Partnership Interests will not be registered
nor publicly tradable and will be subordinated to both the Common Units and
the Senior
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<PAGE>
Star Gas and Petroleum Heat and Power Announce Agreement to Combine
8/14/98 page 2
Subordinated Units. The Senior Subordinated Units will be exchanged with
holders of Petro's publicly traded Class A common stock and the Junior
Subordinated Units and General Partnership Interests will be exchanged with
individuals that currently own Petro's Class C common stock. Certain holders
of the Company's Class C Common Stock will also exchange their shares for
Senior Subordinated Units.
It is currently contemplated that 21,177,000 shares of Petro Common Stock
will be exchanged for 2,767,000 Star Senior Subordinated Units. 5,386,000
shares of Petro common stock, held by certain individuals who currently own
Petro Class C common stock, including Irik P. Sevin, Chairman of Petro and
Star and other members of a group that currently controls Petro, will be
exchanged for 579,000 Junior Subordinated Units and General Partnership
Interests which are economically equivalent to 279,000 Junior Subordinated
Units.
Under the partnership subordinated provision, distributions on Star Senior
Subordinated Units may be made only after distributions of Available Cash on
Common Units meet the MQD requirement. Distributions on Star Junior
Subordinated Units and to the General Partner may be made only after
distributions of Available Cash on Common Units and Senior Subordinated Units
meet the MQD requirement. The Subordination Period will extend until the
Partnership earns and pays its MQD for three years. In any event, as a
condition of this transaction, the Partnership agreement will be amended so
that no distribution will be paid on the Senior Subordinated Units, Junior
Subordinated Units, or to the General Partner except to the extent Available
Cash is earned from operations.
Like many other publicly traded master limited partnerships, the Partnership
contains a provision which provides the General Partner with incentive
distributions in excess of certain targeted amounts. This provision will be
modified so that should there be any such incentive distributions, they will
be made pro rata to the Senior Subordinated Units and Junior Subordinated
Units as well as to the General Partner.
In connection with the Transaction, the Senior Subordinated Units, Junior
Subordinated Units and General Partnership Interests can earn, pro rata,
303,000 additional Senior Subordinated Units each year that Petro provides
$.50 per unit accretion to Star to a maximum of 909,000 additional Senior
Subordinated Units.
In connection with the transaction, Star intends to raise approximately $140
million through a public offering of Common Units and $120 million through a
public or private offering of debt securities. The net proceeds from these
offerings will be used primarily to redeem approximately $240 million in
Petro public and private debt and preferred stock. Any such offering will be
made only by means of a prospectus or in transactions not requiring
registration under securities laws. This announcement does not constitute an
offer to sell any securities. As part of this recapitalization, Petro also
intends to restructure $66.2 million of privately held notes.
Petro has reached an agreement with institutional holders of an aggregate of
$149 million or 63.1% of such public debt and preferred stock to permit the
redemption of such securities at the closing the Star Gas/Petro Transaction.
This agreement allows
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<PAGE>
Petro to redeem its 9 3/8% Subordinated Debentures, 10 1/8% Subordinated
Notes and 12 1/4% Subordinated Debentures at 100%, 100% and 103.5% of
principal amount, respectively, and to redeem its 12 7/8% Preferred Stock at
$23 per share. In consideration for this early redemption right, Petro has
agreed to issue to such holders 3.37 shares of newly issued Petro Junior
Convertible Preferred Stock for each $1,000 in principal amount or
liquidation perference of such securities. Each share of Petro Junior
Convertible Preferred Stock will be exchangeable into .13 of a Star common
Unit at the conclusion of this transaction representing a maximum 104,000 MLP
units. Should the transaction not be consummated, the Junior Preferred Stock
will be converted into a like number of shares of Class A Common Stock.
Petro will offer to the remaining holders of it's publicly traded debt and
preferred stock the same right of early redemption under the same terms and
conditions as agreed to by the consenting holders. This proposal will be
made through an exchange offer that is expected to commence shortly. This
transaction and the associated Petro recapitalization are subject to
receiving an agreement to the early redemption from at least 90% of the
outstanding publicly traded debt and preferred stock.
Petro currently has a 40.7% equity interest in the Partnership and a
subsidiary of Petro is its general partner. After completion of the
transaction, the Petro shareholders will own approximately 26% of Star's
equity through Subordinated Units and General Parnership Interests. The
holders of the Partnership's Common Units (including an estimated 6.4 million
Common Units that will be sold in the Partnerships $140 million public
offering) will own an aggregate approximately 74% equity interest in the
Partnership following the completion of the transaction. The General Partner
of the Partnership will be a newly organized Delaware limited liability
company that will be owned by members of Petro's current control group.
In commenting on the proposed transaction, Joseph Cavanaugh, President of
Star, "We believe that this strategic combination will have a number of
benefits for the Partnership. Firstly, we are pleased with having achieved
our goal of structuring a transaction which we believe will be immediately
accretive, enabling us to increase the Partnership's MQD to $2.30 annually.
Secondly, we belive this strategic combination will provide an additional
source of attractive acquisition opportunities. Petro is the largest retail
heating oil company in the country and the primary consolidator of that
highly fragmented industry. Over the past nineteen years Petro has acquired
189 distributorships. As such, we belive this combination should provide the
Partnership with a platform to increase its acquisition activities. Thirdly,
over the past two and one-half years, in an effort to take advantage of its
size, Petro has regionalized its operations, accessed developments in
computer and communication technology, and entered into cross-marketing
partnerships. These programs have provided attractive productivity,
operational and marketing results which should continue to benefit the
Partnership Finally, this combination significantly increases the size and
market capitalization of the Partnership."
Irik P. Sevin, CEO of Petro stated, "We believe the proposed transaction will
enable Petro to achieve its stated objective of accessing equity to
recapitalize and delever. This should permit us to continue our historically
active acquisition program and
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<PAGE>
facilitate the funding of our operational and marketing initiatives. In
addition, the MLP structure should provide a better valuation format for
Petro which is cash flow oriented and which has been the only publicly traded
company in its industry. The transaction should provide our shareholders
with the resumption of annual cash distributions which Petro had historically
made."
The Board of Directors of Star has appointed an independent committee of
directors to represent Star Gas in this matter. This committee has retained
A.G. Edwards & Sons, Inc. to act as its financial advisor and to determine
the fairness of this transaction to the Star Common Unit holders. The Board
of Directors of Petro has retained PaineWebber Incorporated as its financial
advisor and Dain Rauscher Wessels to render an opinion as to the fairness to
Petro of this transaction.
The completion of the Transaction is subject to the negotiation and execution
of definitive agreements, the receipt of regulatory approvals, the approval
of Star's nonaffiliated common unit holders and Petro's nonaffiliated common
shareholders, other necessary partnership and corporate approvals, fairness
opinions from A.G. Edwards & Sons, Inc. and Dain Rauscher Wessels, and the
agreement to early redemption by the holders of 90% of Petro's publicly
traded debt and preferred stock.
Petro and Star will continue to operate as separate business units and this
transaction will not have an impact on the day-to-day operations of either
entity. There will be no reduction in the number of employees as a result of
this transaction.
Petroleum Heat and Power Co., Inc. is the largest retail distributor of home
heating oil in the nations, serving approximately 350,000 customers in the
Northeast and Mid-Atlantic states, including the metropolitan areas of New
York, Boston, Washington, D.C., Baltimore, and Providence. Star Gas Partners
L.P., the eighth largest retail propane distributor services more than
166,000 customers throughout 74 locations in the Midwestern states of Ohio,
Indiana, Michigan, Kentucky, West Virginia and in the Northeast, from Maine
to Southern New Jersey. Star operates under several trademarks and trade
names, including: Star Gas Service, Silgas, Blue Flame L.P. Gas, Maingas,
Arrow Gas, Mid-Hudson Valley Propane, Coleman Gas Service, H&S Gas, Wilhoyte
L.P. Gas, Rural National Gas, Pearl Gas, Bay State-Arrow Gas, Knowles L.P.
Gas and Lowe Bros & Dad.
This Press Release includes "forward-looking statements," within the meaning
of Section 27A of the Securities Act and Section 21E of the Exchange Act,
which represent Petro and Star's expectations or beliefs concerning future
events that involve risks and uncertainties. Although Petro and Star Gas
believe that the expectations reflected in such forward-looking statements
are reasonable, Petro and Star Gas can give no assurance that such
expectations will prove to have been correct. Investors and prospective
investors should read this Press Release in conjunction with Petro and Star
Gas' Forms 10-K and 10-Q which include additional information that could
affect Petro and Star Gas' financial results.
<PAGE>
OFFERING CIRCULAR
PETROLEUM HEAT AND POWER CO., INC.
Exchange Offer
to holders of its
10 1/8% Subordinated Notes due 2003
9 3/8% Subordinated Debentures due 2006
12 1/4% Subordinated Debentures due 2005
Petroleum Heat and Power Co., Inc., a Minnesota corporation ("Petro" or the
"Company"), hereby offers, upon the terms and subject to the conditions set
forth in this Offering Circular and the accompanying Letters of Transmittal
(which together constitute the "Exchange Offers") to exchange any and all of the
securities set forth above for the following securities of the Company:
<TABLE>
<CAPTION>
For Each $1,000 Principal Amount of: The Holder Will Receive:
- ------------------------------------ ------------------------
<S> <C>
10 1/8% Subordinated Notes due 2003 $1,000 principal amount of the Company's 10 1/8% Senior
(the "Old 10 1/8% Notes") Subordinated Notes due 2003 (the "New 10 1/8% Notes") plus
3.3732 shares of the Company's 1998 Junior Convertible Preferred
Stock (the "New Junior Preferred Stock")
9 3/8% Subordinated Debentures due 2006 $1,000 principal amount of the Company's 9 3/8% Senior
(the "Old 9 3/8% Debentures") Subordinated Debentures due 2006 (the "New 9 3/8%
Debentures") plus 3.3732 shares of New Junior Preferred Stock
12 1/4% Subordinated Debentures due 2005 $1,000 principal amount of the Company's 12 1/4% Senior
(the "Old 12 1/4% Debentures") Subordinated Debenture due 2005 (the "New 12 1/4%
Debentures") plus 3.3732 shares of New Junior Preferred Stock
</TABLE>
The Old 10 1/8% Notes, the Old 9 3/8% Debentures and the Old 12 1/4%
Debentures are sometimes collectively referred to herein as the "Old Debt
Securities." The New 10 1/8% Notes, the New 9 3/8 % Debentures and the New
12 1/4% Debentures are sometimes collectively referred to herein as the "New
Debt Securities."
- --------------------------------------------------------------------------------
EACH EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME ON SEPTEMBER
24, 1998, UNLESS EXTENDED (THE "EXPIRATION DATE"). TENDERED OLD DEBT SECURITIES
MAY BE WITHDRAWN AND OLD DEBT CONSENTS MAY BE REVOKED AT ANY TIME UNTIL THE
MINIMUM DEBT EXCHANGES WITH RESPECT TO THE APPLICABLE ISSUE OF OLD DEBT
SECURITIES HAVE BEEN RECEIVED AND ACCEPTED BY THE COMPANY.
SEE "THE EXCHANGE OFFERS - WITHDRAWAL RIGHTS."
- --------------------------------------------------------------------------------
See "Risk Factors" beginning on page 13 for a discussion of certain risk
factors which should be considered in connection with the Exchange Offers.
The date of this Offering Circular is August 26, 1998.
<PAGE>
The terms of the New Debt Securities are identical to the terms of the Old
Debt Securities, except that (i) the New Debt Securities will be senior in right
of payment to any Old Debt Securities not exchanged in the Exchange Offers and
(ii) the New Debt Securities grant the Company the right (the "Early Redemption
Right") to redeem such Securities for cash in connection with the closing of the
proposed Star Gas Transaction (defined below) for the following prices plus
accrued but unpaid interest thereon (collectively, the "Redemption Prices"),
through the date of redemption (the "Redemption Date"):
<TABLE>
<CAPTION>
New Debt Security Redemption Price
- ----------------- ----------------
(Plus accrued but unpaid interest)
<S> <C>
New 10 1/8% Notes 100% of face value
New 9 3/8% Debentures 100% of face value
New 12 1/4% Debentures 103.5% of face value
</TABLE>
On August 14, 1998, Petro announced that it had reached an agreement -in-
principle with Star Gas Partners, L.P. (the "Partnership"), to enter into a
strategic business combination (the "Star Gas Transaction" or the "Transaction")
in which Petro would become a wholly owned indirect subsidiary of the
Partnership substantially as described in the Press Release dated August 14,
1998, a copy of which is attached hereto as Exhibit A. The Exchange Offers are
being made in connection with the Star Gas Transaction. Among other things, the
Star Gas Transaction is subject to the receipt of the Minimum Debt Exchanges
(defined below).
Prior to the commencement of the Exchange Offers, Petro entered into
agreements (the "Old Debt Securities Agreements") with the holders (the
"Consenting Debt Holders") of an aggregate of $119.1 million, or 57.8% of the
Old Debt Securities, pursuant to which the Consenting Debt Holders have agreed
to participate in the Exchange Offers on terms identical to those contained
herein. In connection with the execution of the Old Debt Securities Agreements,
the Consenting Debt Holders received 3.3732 shares of New Junior Preferred Stock
for each $1,000 of aggregate principal amount of the Old Debt Securities owned
by such Holders. The Consenting Debt Holders will not receive any additional
shares of New Junior Preferred Stock for participating in the Exchange Offers.
In addition, prior to the commencement of the Exchange Offers, Petro
entered into agreements (the "Old Preferred Agreements") with the holders
(the "Consenting Preferred Stockholders") of 1,200,000 shares of the
Company's 12 7/8% Series B Exchangeable Preferred Stock due 2009 (the "Old
Preferred Stock"), representing 100% of such series, pursuant to which the
Consenting Preferred Stockholders have agreed to exchange their shares of Old
Preferred Stock on a one-for-one basis for shares of the Company's 12 7/8%
Series C Exchangeable Preferred Stock due 2009 (the "New Preferred Stock").
The terms of the New Preferred Stock are identical to the terms of the Old
Preferred Stock, except that the New Preferred Stock grants the Company the
right to redeem such securities on or before April 1, 1999 in connection with
the consummation of the Star Gas Transaction at $23 per share plus accrued
but unpaid dividends thereon (the "Preferred Early Redemption Right"). The
New Preferred Stock shall be issued pursuant to a certificate of designation
(the "New Preferred Stock Certificate of Designation") which, other than the
Preferred Early Redemption Right, will be identical to the Old Preferred
Stock Certificate of Designation. The Transfer Agent and Registrar for the
New Preferred Stock will be American Stock Transfer & Trust Company. Each
Holder of Old Preferred Stock who receives New Preferred Stock shall be
deemed to have granted the Company an irrevocable proxy coupled with an
interest (the "New Preferred Stock Proxies") to vote all of the shares of New
Preferred Stock owned by such Holder in favor of the Star Gas Transaction. In
connection with the execution of the Old Preferred Agreements, the Consenting
Preferred Stockholders received 3.3732 shares of New Junior Preferred Stock
for each $1,000 in aggregate liquidation preference of Old Preferred Stock
owned by such Holders. The Consenting Preferred Stockholders will not receive
any additional shares of New Junior Preferred Stock in connection with the
Preferred Stock Exchange.
Each holder of Old Debt Securities (each a "Holder" and collectively, the
"Holders") who exchanges such Old Debt Securities for New Debt Securities
pursuant to the Exchange Offers shall be deemed to have granted a consent
ii
<PAGE>
(collectively, the "Old Debt Consents") to certain amendments described herein
(the "Old Debt Amendments") to the indentures under which such Old Debt
Securities were issued (the "Old Indentures"). The Old Debt Consents will be
effective upon the consummation of the Exchange Offers. Among other things, the
Old Debt Amendments would eliminate substantially all covenants from the Old
Indentures. HOLDERS WHO EXCHANGE OLD DEBT SECURITIES FOR NEW DEBT SECURITIES
WILL BE DEEMED TO HAVE CONSENTED TO THE OLD DEBT AMENDMENTS.
Each Exchange Offer is conditioned, among other things, on tender to the
Company of at least 90% of the outstanding aggregate principal amount of the Old
Debt Securities (individually, a "Minimum Debt Exchange" and collectively, the
"Minimum Debt Exchanges"). The Company may waive any of the conditions to the
Exchange Offers, including the Minimum Debt Exchanges. See "The Exchange Offers
- -- Conditions of the Exchange Offers." All references herein to the Exchange
Offers shall be deemed to include the Consents, unless otherwise specified.
The New Junior Preferred Stock is a newly authorized class of non-voting
convertible junior preferred stock of the Company with dividend and liquidation
rights which are in all material respects equal to those of the Company's Class
A Common Stock, except for a liquidation preference of $.01 per share. Each
share of New Junior Preferred Stock is convertible at the option of the holder
at any time prior to the consummation of the Star Gas Transaction into one share
of Class A Common Stock and is subject to mandatory conversion into one share of
Class A Common Stock if it is transferred prior to the consummation of the Star
Gas Transaction. In addition, the certificate of designation for the New Junior
Preferred Stock provides that the Company may elect to require the conversion of
the New Junior Preferred Stock into shares of Class A Common Stock at any time
after April 1, 1999. However, the Company has agreed not to exercise this right
until it has complied with certain registration rights (the "Registration
Rights") that were granted to Consenting Debt Holders in connection with the
execution of the Old Debt Securities Agreements. The shares of New Junior
Preferred Stock that are issued pursuant to the Exchange Offers (and the shares
of Class A Common Stock into which they may be converted) shall be deemed to
have the status of "restricted securities" as that term is defined in Rule 144
under the Securities Act of 1933 as amended (the "Act") and may not be
transferred, assigned or sold prior to the earlier to occur of (i) May 31, 1999
and (ii) the date on which the Company shall have complied with the Registration
Rights, except pursuant to an available exemption from the registration
requirements of the Act. As of June 30, 1998, on a pro forma basis, after giving
effect to the Exchange Offers (assuming a 100% participation rate) and the
concurrent Preferred Stock Exchange, the Company would have had approximately
797,000 shares of New Junior Preferred Stock outstanding. In connection with the
consummation of the Star Gas Transaction, each share of New Junior Preferred
Stock shall be exchanged (the "Exchange") for .13064 of a freely tradeable
common unit (the "Common Units") of limited partner interest in the Partnership
(with cash payable in lieu of fractional Units). Each Holder who participates in
the Exchange Offers shall be deemed to have granted the Company an irrevocable
proxy coupled with an interest (the "New Junior Preferred Stock Proxies") to
vote all of the shares of New Junior Preferred Stock owned by such Holder in
favor of the proposed Star Gas Transaction.
The Exchange Offers are being made by the Company in reliance on the
exemption from the registration requirements of the Securities Act of 1933, as
amended (the "Act"), afforded by Section 3(a)(9) thereof. The Company,
therefore, will not pay any commission or other remuneration to any broker,
dealer, salesman or other person for soliciting tenders of the Old Debt
Securities or in connection with the Preferred Stock Exchange. Regular employees
of the Company may solicit exchanges from Holders and will answer inquiries
concerning the Exchange Offers, but they will not receive additional
compensation therefor.
The Company has made no arrangements for and has no understanding with any
dealer, salesman or other person regarding the solicitation of tenders
hereunder, and no person has been authorized to give any information or to make
any representation not contained in this Offering Circular in connection with
the Exchange Offers, and if given or made, such information or representation
must not be relied upon as having been authorized by the Company or any other
person. Neither the delivery of this Offering Circular nor any exchange made
hereunder shall, under any circumstances, create any implication that there has
been no change in affairs of the Company and its subsidiaries since the
respective dates as of which information is given herein.
iii
<PAGE>
Holders are not to construe the contents of this Offering Circular as legal
advice. Each holder should consult his own legal, tax and business advisors as
to legal and related matters concerning the Exchange Offer.
This Offering Circular does not constitute an offer to any person in any
jurisdiction in which such offer would be unlawful. The Exchange Offers are not
being made to, and tenders will not be accepted from, Holders in any
jurisdiction in which the Exchange Offers or acceptance thereof would constitute
a violation of the securities or blue sky laws of such jurisdiction.
INFORMATION AGENT, EXCHANGE AGENT AND ASSISTANCE
Morrow & Co., Inc. (the "Information Agent"), is the Information Agent in
connection with the Exchange Offers. Any questions or requests for assistance
may be directed to the Information Agent at 445 Park Avenue, New York, New York
10022, telephone: (212) 754-8000 or (800) 662-5200. The Chase Manhattan Bank
(the "Exchange Agent") is the Exchange Agent in connection with the Exchange
Offers. For further information regarding the procedures to be followed by
Holders in connection with the Exchange Offers, Holders may contact the Company
at 2187 Atlantic Street, Stamford, CT, 06902, Attention: George Leibowitz,
Treasurer (Telephone (203) 325-5470).
AVAILABLE INFORMATION
The Company and the Partnership are each subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy statements
and other information concerning the Company can be inspected without charge at
the Public Reference Room maintained by the Commission at 450 Fifth Street,
N.W., Room 1024, Washington, D.C. 20549. In addition, upon request, such
reports, proxy statements and other information will be made available for
inspection and copying at the Commission's public reference facilities at 500
West Madison Street Suite 1400, Chicago, Illinois 60661 and at Seven World Trade
Center, 13th Floor, New York, New York 10048. Copies of such material can be
obtained at prescribed rates upon request from the Public Reference Section of
the Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549.
Such material may also be accessed electronically at the Commission's site on
the World Wide Web located at http:\\www.sec.gov. The Company's Class A Common
Stock is included for quotation in the Nasdaq National Market and the
Partnership's Common Units are listed on the New York Stock Exchange, and such
reports, proxy statements and other information concerning the Company and the
Partnership may be inspected and copied at the offices of the National
Association of Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C.
20006.
Copies of the indentures pursuant to which the New Debt Securities are to be
issued (the "New Indentures") and the Old Indentures are available upon request
from the Company. Requests should be directed to Petroleum Heat and Power Co.,
Inc., 2187 Atlantic Street, Stamford, CT 06902, Attention: George Leibowitz,
Treasurer (Telephone (203) 325-5470).
iv
<PAGE>
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents (or portions thereof) filed by the Company with the
Commission are incorporated in this Offering Circular by reference and shall be
deemed to be a part hereof:
1. The Annual Report on Form 10-K of the Company for the fiscal year
ended December 31, 1997, as filed with the Commission on March 26,
1998, including the financial statements included therein;
2. The Quarterly Report on Form 10-Q of the Company for the quarterly
period ended June 30, 1998, as filed with the Commission on August 14,
1998, including the financial statements included therein.
3. The Company's Applications for Qualification of Indenture under the
Trust Indenture Act of 1939, as amended (the "TIA"), on Form T-3 dated
August 14, 1998, with respect to the New Indentures as filed with the
Commission on August 14, 1998, as amended by Amendment No. 1 thereto
filed with the Commission on or about August 26, 1998.
The Company will provide to any person receiving a copy of this Offering
Circular without charge, upon request, a copy of any of the documents or
information incorporated by reference herein. Requests should be directed to the
Company at 2187 Atlantic Street, Stamford, CT 06902, Attention: George
Leibowitz, Treasurer (Telephone (203) 325-5470).
Any statement contained in any document incorporated by reference or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Offering Circular to the extent that a statement
contained herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as modified or superseded, to
constitute a part of this Offering Circular.
v
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
SUMMARY....................................................................................2
RISK FACTORS..............................................................................13
BACKGROUND OF THE EXCHANGE OFFERS.........................................................14
THE EXCHANGE OFFERS.......................................................................16
DESCRIPTION OF NEW DEBT SECURITIES .......................................................23
AGREEMENTS WITH CONSENTING DEBT HOLDERS ..................................................24
AGREEMENTS WITH CONSENTING PREFERRED STOCKHOLDERS.........................................24
DESCRIPTION OF NEW JUNIOR PREFERRED STOCK.................................................25
THE OLD DEBT AMENDMENTS...................................................................26
CERTAIN U.S. FEDERAL INCOME TAX CONSIDERATIONS............................................28
EXHIBIT A - Press Release dated August 14, 1998
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SUMMARY
The following summary is qualified in its entirety by the more detailed
information and financial statements contained elsewhere in, or incorporated by
reference into, this Offering Circular.
The Company
Petro is a Minnesota corporation engaged primarily in the retail
distribution of home heating oil in the Northeast and Mid-Atlantic states. Petro
believes that it is the largest retail distributor of home heating oil in the
United States, serving approximately 350,000 customers from 24 branch locations
with total sales of $548.1 million for the year ended December 31, 1997. As an
adjunct to its retail distribution business, Petro installs and repairs heating
equipment. Such services are typically not designed to generate profits and are
considered by Petro's management to be an integral part of the basic heating oil
business. To a limited extent, Petro also markets other petroleum products,
including diesel fuel and gasoline, to commercial customers. In addition to its
heating oil business, Petro currently owns a 40.66% equity interest in the
Partnership. Star Gas Corporation, a Delaware corporation and a wholly-owned
subsidiary of Petro, is the general partner of the Partnership and Star Gas
Propane, L.P., a Delaware limited partnership (the "Operating Partnership").
Petro's executive offices are located at 2187 Atlantic Street, Stamford,
Connecticut 06902. Petro's telephone number is (203) 325-5400.
The Partnership
The Partnership is a Delaware limited partnership engaged, through the
Operating Partnership, primarily in the retail distribution of propane and
related supplies and equipment to residential, commercial, industrial,
agricultural and motor fuel customers. Propane is used primarily as fuel for
space and water heating and cooking by the Partnership's residential and
commercial customers, which customers constitute the largest portion of its
customer base. The Partnership believes that it is the eighth largest retail
propane distributor in the United States, serving approximately 166,000
customers from 74 branch locations in 13 states in the Midwest and Northeast
with total sales of approximately $135 million for the year ended September 30,
1997. In addition to its retail business, the Partnership, through the Operating
Partnership, serves approximately 50 wholesale customers from its wholesale
operation in southern Indiana. The Partnership owns a 99% limited partnership
interest in, and is the sole limited partner of, the Operating Partnership.
The executive offices of the Partnership are located at 2187 Atlantic
Street, Stamford, Connecticut 06902. The Partnership's telephone number is (203)
328-7300.
The Star Gas Transaction; Purposes and Effects of the Exchange Offers
On August 14, 1998, Petro announced that it had reached an agreement in
principle with the Partnership to enter into a strategic business combination in
which Petro would become a wholly owned indirect subsidiary of the Partnership
substantially as described in that certain Press Release dated August 14, 1998,
a copy of which is attached hereto as Exhibit A. The Exchange Offers are being
made in connection with the Star Gas Transaction. Among other matters, the Star
Gas Transaction is subject to the receipt of the Minimum Debt Exchanges.
Petro has reported disappointing financial results in 1997 and 1998 for
several reasons. The primary factor has been the past two years of back-to-back
warm winters in the Company's core Northeast and Mid-Atlantic markets, with this
past year being the warmest of the century. In addition, the Company has
experienced customer attrition which has eroded its account base and negatively
impacted its earnings. In an effort to deal with these problems, Petro has
undertaken a corporate restructuring program to regionalize its operations and
reduce expenses. While this program has reduced attrition and improved operating
performance, it has not been sufficient to offset the effect of the last two
winters' weather.
Although Petro's recently reported financial results reflect these
improvements, the Company is still very highly leveraged with a 7.3x net
Debt/EBITDA ratio and a 1.2x EBITDA/Interest ratio for the twelve months ended
June 30,
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1998. At June 30, 1998 the Company had outstanding an aggregate of $287
million in long term debt (including current portion) and $38 million of
redeemable preferred stock and had a stockholders' deficiency of $175 million.
In addition, the Company's ability to improve its highly leveraged condition is
severely limited by the unavailability of capital. Petro's negative annual cash
flow after maintenance capital expenditures and the payment of its fixed
obligations have caused it to halt investing in its regionalization and
acquisitions programs. Furthermore, Petro faces significant debt amortization
payments beginning in 2000.
In order to address this situation, Petro has reached an agreement in
principle for the Star Gas Transaction, pursuant to which it would combine with
the Partnership, its 40% owned master limited partnership ("MLP") of which it is
the general partner. As part of the Transaction, Petro will become a wholly
owned indirect subsidiary of the Partnership and will be recapitalized as
follows. The Partnership will issue 6.5 million new Common Units and $120
million of new debt using the net proceeds primarily to repay Petro's public
debt and preferred stock. This will enable the Company to redeem the New 10 1/8%
Notes, the New 9 3/8% Debentures and the New 12 1/4% Debentures at 100%, 100%
and 103.5% of principal amount, respectively, plus accrued interest pursuant to
the Early Redemption Right. Given Petro's financial condition, the value at
which the Old Debt Securities were trading prior to the announcement that the
Company was seeking to recapitalize, and the Company's prospects without this
restructuring, the Company believes this redemption should be attractive to the
holders of Old Debt Securities.
The Early Redemption Right will be implemented through the Exchange Offers
in which the participating Holders of Old Debt Securities will receive New Debt
Securities identical to the old except (i) for the Early Redemption Right, and
(ii) the New Debt Securities will be senior in right of payment to the Old Debt
Securities not exchanged in the Exchange Offers. Petro has authorized the
issuance of approximately 797,000 shares of New Junior Preferred Stock,
representing 3% of the Company's outstanding equity, to be issued to the Holders
that agree to exchange their Old Debt Securities (as well as to holders of Old
Preferred Stock who exchange such securities for New Preferred Stock). Under
this plan, Petro will pay to each exchanging Holder a fee of 3.3732 shares of
New Junior Preferred Stock per $1,000 of principal amount exchanged. The New
Junior Preferred Stock will be exchanged for Common Units at the closing of the
Transaction or is convertible into shares of the Company's Class A Common Stock
at any time at the option of the Holder. This fee will be payable to
participating Holders upon the consummation of the Exchange Offers, regardless
of whether the Transaction itself is consummated.
Petro's management has met with 13 of its largest institutional investors
which own over 57.8% in aggregate principal amount of the Old Debt Securities
and 100% of the Old Preferred Stock to review the Transaction and negotiate the
terms of the Early Redemption Right. All 13 of these investors support the
Transaction and have agreed to exchange their securities. However, the
Transaction is conditioned upon the Holders of 90% in aggregate principal amount
of each issue of the Old Debt Securities participating in the Exchange Offers.
Therefore, Petro is asking the Holders of all Old Debt Securities to exchange in
order to proceed with the Transaction.
The Company believes the Transaction is in the best interest of all Holders
of Old Debt Securities. Under its current capital structure Petro does not have
the funds to improve its highly leveraged credit condition. In the event that
less than 90% of the Old Debt Securities are exchanged, Petro will be unable to
proceed with the Transaction which could cause the market prices for the Old
Debt Securities to decline. In the longer run, if the Transaction is not
completed Petro faces significant amortization payments that may be difficult to
refinance. Petro currently intends to take advantage of the capital market for
MLP's, depending on market conditions, in order to raise capital to repay its
public debt at a premium to their recent trading values pursuant to the Early
Redemption Right. In addition, Petro will issue to exchanging Holders shares of
New Junior Preferred Stock that will be exchanged into Common Units at the
closing of the Transaction.
Consequences to Non Exchanging Holders
The consummation of the Exchange Offers will have certain adverse
consequences to Holders of Old Debt Securities who do not participate in the
Exchange Offers with respect thereto, including the following: (i) the New Debt
Securities will be senior in right of payment to the Old Debt Securities not
exchanged in the Exchange Offers, (ii) the Old Indentures will be amended to
eliminate substantially all of the covenant protection provided by the Old
Indentures
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and (iii) the trading market for the remaining Old Debt Securities will become
more limited, which may adversely affect the liquidity and market price of the
remaining Old Debt Securities. See "Risk Factors."
Risk Factors
Prior to deciding whether to participate in the Exchange Offers and thereby
consent to the proposed Star Gas Transaction and the Old Debt Amendments, each
Holder should carefully consider all of the information contained in this
Offering Circular, especially the factors described in "Risk Factors" beginning
on page 13.
The Exchange Offers
Petro hereby offers, upon the terms and subject to the conditions set forth
in this Offering Circular and in the accompanying applicable Letters of
Transmittal, to exchange the securities set forth below for the following
securities of the Company:
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For Each $1,000 Principal Amount of: The Holder Will Receive:
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Old 10 1/8% Notes $1,000 principal amount of New 10 1/8 % Notes plus 3.3732
shares of New Junior Preferred Stock
Old 9 3/8% Debentures $1,000 principal amount of New 9 3/8 % Debentures plus 3.3732
shares of New Junior Preferred Stock
Old 12 1/4% Debentures $1,000 principal amount of New 12 1/4% Debentures plus 3.3732
shares of New Junior Preferred Stock.
Principal Amount
Outstanding............................ As of August 15, 1998, there were outstanding $50
million in aggregate principal amount of Old
10 1/8% Notes, $75 million in aggregate principal
amount of Old 9 3/8% Debentures and $81.25
million in aggregate principal amount of Old
12 1/4% Debentures.
Conditions to Exchange Offers.............. Each Exchange Offer is conditioned, among other
things, on receipt by the Company of the Minimum
Debt Exchanges. See "The Exchange Offers--Conditions
of the Exchange Offers."
Certain Consequences to Holders of Old Debt
Securities who do not Participate in the
Exchange Offers............................ The consummation of the Exchange Offers will have
certain adverse consequences to Holders of Old Debt
Securities who do not participate in the Exchange
Offers with respect thereto, including the following:
(i) the New Debt Securities will be senior in right of
payment to the Old Debt Securities not exchanged in the
Exchange Offers, (ii) the Old Indentures will be amended
to eliminate substantially all of the covenant protection
provided by the Old Indentures and (iii) the trading market
for the remaining Old Debt
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Securities will become more limited, which may adversely
affect the liquidity and market price of the remaining Old
Debt Securities. See "Risk Factors."
New Debt Securities........................ The terms of the New Debt Securities are identical
to the terms of the Old Debt Securities, except that
(i) the New Debt Securities grant the Company the Early
Redemption Right and (ii) the New Debt Securities
will be senior in right of payment to the Old Debt
Securities. The New Debt Securities shall be issued
pursuant to the New Indentures, qualified under the
Trust Indenture Act of 1939, as amended (the "TIA"),
which are identical to the Old Indentures, except (i)
for the inclusion of the Early Redemption Right, and
(ii) the New Indentures will contain subordination
provisions making the New Debt Securities senior in right
of payment to the Old Debt Securities not exchanged in the
Exchange Offers. The Trustee and Registrar for the New Debt
Securities is The Chase Manhattan Bank.
Early Redemption Right..................... The New Debt Securities grant the Company the
right to redeem such Securities for cash on or before
April 1, 1999 in connection with the closing of the Star
Gas Transaction for the following prices plus accrued but
unpaid interest thereon (the "Redemption Prices"):
New 10 1/8% Notes - 100% of face value
New 9 3/8% Debentures - 100% of face value
New 12 1/4% Debentures - 103.5% of face value
Seniority; Ranking ....................... The New Debt Securities will be senior in right of
payment to the Old Debt Securities not exchanged in
the Exchange Offers.
New Junior Preferred Stock................. The New Junior Preferred Stock is a newly authorized
class of non-voting convertible junior preferred stock
of the Company with dividend and liquidation rights which
are in all material respects equal to those of the
Company's Class A Common Stock, except for a liquidation
preference of $.01 per share. Each share of New Junior
Preferred Stock is convertible at the option of the holder
at any time prior to the consummation of the Star Gas
Transaction into one share of Class A Common Stock and is
subject to mandatory conversion into share of Class A Common
Stock if it is transferred prior to the consummation of the
Star Gas Transaction. In
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addition, the certificate of designation for the New Junior
Preferred Stock provides that the Company may elect to require
the conversion of the New Junior Preferred Stock into shares of
Class A Common Stock at any time after April 1, 1999. However,
the Company has agreed not to exercise this right until it has
complied with certain registration rights (the "Registration
Rights") that were granted to Consenting Debt Holders in
connection with the execution of the Old Debt Securities
Agreements. The shares of New Junior Preferred Stock that are
issued pursuant to the Exchange Offers (and the shares of Class
A Common Stock into which they may be converted) shall be deemed
to have the status of "restricted securities" as that term is
defined in Rule 144 under the Securities Act of 1933 as amended
(the "Act") and may not be transferred, assigned or sold prior to
the earlier to occur of (i) May 31, 1999 and (ii) the date on which
the Company shall have complied with the Registration Rights, except
pursuant to an available exemption from the registration requirements
of the Act. As of June 30, 1998, on a pro forma basis, after giving
effect to the Exchange Offers (assuming a 100% participation rate)
and the concurrent Preferred Stock Exchange, the Company would have
had approximately 797,000 shares of New Junior Preferred Stock
outstanding. In connection with the consummation of the Star Gas
Transaction, each share of New Junior Preferred Stock shall be
exchanged (the "Exchange") for .13064 of a freely tradeable common
unit (the "Units) of limited partner interest in the Partnership
(with cash payable in lieu of fractional Units). Each Holder who
participates in the Exchange Offers shall be deemed to have granted
the Company an irrevocable proxy coupled with an interest (the "New
Junior Preferred Stock Proxies") to vote all of the shares of New
Junior Preferred Stock owned by such Holder in favor of the proposed
Star Gas Transaction.
Agreements with Consenting Debt Holders.... Prior to the commencement of the Exchange Offers, Petro entered into
the Old Debt Securities Agreements with the Consenting Debt Holders
pursuant to which Petro has the right to redeem such securities in
connection with the consummation of the Star Gas Transaction on the
same terms as the Early Redemption Right. The Consenting Debt
Holders have agreed to participate in the Exchange Offers. In
connection with the execution of the Old Debt Securities
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Agreements, the Consenting Debt Holders received 3.3732 shares of
New Junior Preferred Stock for each $1,000 of aggregate principal
amount or of the Old Debt Securities owned by such Holders. The
Consenting Debt Holders will not receive any additional shares of
New Junior Preferred Stock for participating in the Exchange Offers.
Agreements with Consenting Preferred
Stockholders............................... Prior to the commencement of the Exchange Offers, Petro entered into the Old
Preferred Agreements with the Consenting Preferred Stockholders of 1,200,000
shares of Old Preferred Stock, representing 100% of such series, pursuant to
which the Consenting Preferred Stockholders have agreed to exchange their shares
of Old Preferred Stock on a one-for-one basis for shares of New Preferred Stock.
The terms of the New Preferred Stock are identical to the terms of the Old
Preferred Stock, except that the New Preferred Stock grants the Company the
right to redeem such securities on or before April 1, 1999 in connection with
the consummation of the Star Gas Transaction at $23 per share plus accrued but
unpaid dividends thereon. The New Preferred Stock shall be issued pursuant to
the New Preferred Stock Certificate of Designation" which, other than the
Preferred Early Redemption Right, will be identical to the Old Preferred Stock
Certificate of Designation. The Transfer Agent and Registrar for the New
Preferred Stock will be American Stock Transfer & Trust Company. Each Holder of
Old Preferred Stock who receives New Preferred Stock shall be deemed to have
granted the Company the New Preferred Stock Proxies to vote all of the shares of
New Preferred Stock owned by such Holder in favor of the Star Gas Transaction.
In connection with the execution of the Old Preferred Agreements, the Consenting
Preferred Stockholders received 3.3732 shares of New Junior Preferred Stock for
each $1,000 in aggregate liquidation preference of Old Preferred Stock owned by
such Holders. The Consenting Preferred Stockholders will not receive any
additional shares of New Junior Preferred Stock in connection with the Preferred
Stock Exchange.
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The Consents
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Consents and Votes Required
to Adopt the Old Debt
Amendments................................. Each of the Old Indentures requires that consents to the Old Debt Amendments be
obtained from the Holders of not less than a majority in aggregate principal
amount of the applicable issue of Old Debt Securities, except for the
elimination of Section 4.08 - Change of Control, which requires a two-thirds
consent.
The Old Debt Amendments
Old 10 1/8% Notes Indenture................ The Old Debt Amendments to the Old Indenture governing the Old 10 1/8% Notes
(the "Old 10 1/8% Notes Indenture") would eliminate the following provisions
from the Old 10 1/8% Notes Indenture:
(i) Section 4.03. Limitation on Funded Debt
(ii) Section 4.04. Limitation on Debt and Preferred Stock of Subsidiaries
(iii) Section 4.05. Limitation on Restricted Payments
(iv) Section 4.06. Limitation on Restrictions on Distributions from Subsidiaries
(v) Section 4.07. Limitation on Transactions with Affiliates
(vi) Section 4.08. Change of Control
(vii) Section 4.09. Limitation on Liens on Subsidiary Stock
(viii) Section 4.12. Refinancing Debt
(ix) Section 5.01. When Company Many Merge or Transfer Assets
Old 9 3/8% Debentures Indenture ........... The Old Debt Amendments to the Old Indenture governing the Old 9 3/8% Debentures
(the "Old 9 3/8% Debentures Indenture") would eliminate the following provisions
from the Old 9 3/8% Debentures Indenture:
(i) Section 4.03. Limitation on Funded Debt
(ii) Section 4.04. Limitation on Debt and Preferred Stock of Subsidiaries
(iii) Section 4.05. Limitation on Restricted Payments
(iv) Section 4.06. Limitation on Restrictions on Distributions from Subsidiaries
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(v) Section 4.07. Limitation on Transactions with Affiliates
(vi) Section 4.08. Change of Control
(vii) Section 4.09. Limitation on Liens on Subsidiary Stock
(viii) Section 5.01. When Company Many Merge or Transfer Assets
Old 12 1/4% Debentures Indenture........... The Old Debt Amendments to the Old Indenture governing the Old 12 1/4%
Debentures (the "Old 12 1/4% Debentures Indenture") would eliminate the
following provisions from the Old 12 1/4% Debentures Indenture:
(i) Section 4.03. Limitation on Funded Debt
(ii) Section 4.04. Limitation on Debt and Preferred Stock of Subsidiaries
(iii) Section 4.05. Limitation on Restricted Payments
(iv) Section 4.06. Limitation on Restrictions on Distributions from Subsidiaries
(v) Section 4.07. Limitation on Transactions with Affiliates
(vi) Section 4.08. Change of Control
(vii) Section 4.09. Limitation on Liens on Subsidiary Stock
(viii) Section 5.01. When Company Many Merge or Transfer Assets
Supplemental Indentures.................... Although the Supplemental Indenture for each issue of Old Debt Securities will
be executed upon receipt of the Minimum Debt Exchanges, the provisions of each
such Supplemental Indenture will not become operative until all of the Exchange
Offers are consummated. In the event that any Exchange Offer expires without the
Company's having accepted any Old Debt Securities in such Exchange Offer, the
Supplemental Indenture with respect to such Old Debt Securities, although
executed, will not become operative and will be null and void and the terms and
provisions of the Old Indenture as originally executed (under which such Old
Debt Securities were issued) will continue to govern such Old Debt Securities.
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General
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Ranking.................................... The New Debt Securities will be general unsecured obligations of the Company,
subordinated in right of payment to all existing and future Senior Debt (as
defined in each of the New Debt Indentures) of the Company. The New Debt
Securities will be senior in right of payment to any Old Debt Securities not
exchanged in the Exchange Offers. As of June 30, 1998, the Old Debt Securities
were, and the New Debt Securities would have been, subordinated in right of
payment to approximately $78 million of Senior Debt. In addition, the Old Debt
Securities were, and the New Debt Securities will be, effectively subordinated
to all indebtedness and other liabilities and commitments of the Company's
subsidiaries which, as of June 30, 1998, totalled approximately $6 million,
consisting primarily of trade payables.
The New Preferred Stock will rank pari passu in right of payment with respect to
all Parity Securities and junior in right of payment to all Senior Securities
(as these terms are defined in the New Preferred Stock Certificate of
Designation), including the Company's 1989 Preferred Stock and the Class B
Common Stock (as defined in the New Preferred Stock Certificate of Designation).
As of June 30, 1998, the New Preferred Stock would have been (a) junior in right
of payment to approximately $287 million of total Indebtedness (as defined) of
the Company, (b) junior in right of payment to 11,000 shares of Class B Stock,
having an aggregate liquidation preference of $0.1 million, and (c) junior in
right of payment to 8,334 shares of 1989 Preferred Stock, having an aggregate
liquidation preference of $8.3 million.
Expiration Date............................ The Expiration Date of the Exchange Offers will be 5:00 p.m. on September 24,
1998 unless the Exchange Offers are extended, in which case the term "Expiration
Date" shall mean the last date to which the Exchange Offers are extended, but no
later than November 1, 1998. See "The Exchange Offers -- Expiration Date;
Termination; Extensions; Amendments."
Holders.................................... The term "Holder" with respect to the Old Debt Securities means any person in
whose name Old Debt Securities are registered on the books of the Company.
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How to Exchange............................ A Holder electing to tender Old Debt Securities should either (i) complete and
sign the applicable Letter of Transmittal, have the signatures thereon
guaranteed if required by Instruction 3 thereof and mail or deliver such Letter
of Transmittal together with the Old Debt Securities and any other required
documents to the Exchange Agent, at the address set forth on the back cover page
of this Offering Circular, or effect a tender of Old Debt Securities pursuant to
the procedures for book-entry transfer as set forth under "The Exchange Offers
-- Procedure for Tendering," or (ii) request his broker, dealer, commercial
bank, trust company or other nominee to effect the transaction for him. Holders
will not be obligated to pay any brokerage commissions or solicitation fees in
connection with the Exchange Offers. Holders who tender their Old Debt
Securities will be deemed to have consented to the Debt Amendments and shall be
deemed to have granted the Company an irrevocable proxy coupled with an interest
to vote all shares of New Junior Preferred Stock owned by such Holders in favor
of the Star Gas Transaction.
Withdrawal Rights and
Revocation................................ Tenders of any issue of Old Debt Securities may be withdrawn and Old Debt
Consents may be revoked at any time until the Minimum Debt Exchange with respect
to the applicable issue of Debt Securities has been received and accepted by the
Company. Old Debt Securities not otherwise accepted by the Company may also be
withdrawn at any time after November 1, 1998. See "The Exchange Offers --
Withdrawal Rights."
Acceptance of Old Debt Securities and
Delivery of New Debt Securities and New
Junior Preferred Stock................... Subject to the satisfaction or waiver of all conditions of the Exchange Offers,
the Company will accept all Old Debt Securities validly tendered on or prior to
the Expiration Date. Promptly thereafter, the Company will deliver the New Debt
Securities to be delivered in exchange for the applicable Old Debt Securities
and the New Junior Preferred Stock to be delivered to exchanging Holders in
consideration for participating in the Exchange Offers and granting the Old Debt
Consents. See "The Exchange Offers."
Exercise of Early Redemption Right......... Notice of exercise of the Early Redemption Right will be mailed to the Holders
of New Debt
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Securities at least three days before the date (the "Payment Date") on which the
Company proposes to exercise the Early Redemption. The Notice will identify the
New Debt Securities to be redeemed and will state the Payment Date, the
Redemption Price, the name and address of the Paying Agent, that the New Debt
Securities must be surrendered to the Paying Agent to collect the Redemption
Price and that unless the Company defaults in paying the Redemption Price,
interest and dividends, as applicable, on the New Debt Securities shall cease to
accrue on and after the Payment Date. On or prior to the Payment Date, the
Company will deposit with the Paying Agent (or if the Company or a subsidiary is
the paying agent, will segregate and hold in trust) money sufficient to pay the
aggregate Redemption Price for the New Debt Securities.
Federal Income Tax
Consequences............................. For a discussion of certain U.S. federal income tax consequences of the Exchange
Offers to participating Holders of Old Debt Securities, see "Certain U.S.
Federal Income Tax Considerations."
Information Agent.......................... Morrow & Co., Inc. is serving as Information Agent in connection with the
Exchange Offers. Its telephone number is (212) 754-8000 or (800) 662-5200.
Requests for additional copies of this Offering Circular and any Letter of
Transmittal should be directed to the Information Agent at its address and
telephone number set forth on the back of this Offering Circular.
Exchange Agent for Old Debt Securities..... The Chase Manhattan Bank has been appointed as the Exchange Agent for the Old
Debt Securities Exchange Offers. Its telephone number is (214) 946-5678.
Questions and requests for assistance may be directed to the Exchange Agent.
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RISK FACTORS
This Offering Circular includes "forward looking statements" within the
meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act. Although the Company believes that its plans, intentions and expectations
rejected in such forward-looking statements are reasonable, it can give no
assurance that such plans, intentions or expectations will be achieved Important
factors that could cause actual results to differ materially from the Company's
forward looking statements are set forth below and elsewhere in this Offering
Circular. All forward-looking statements attributable to the Company or persons
acting on its behalf are expressly qualified in their entirety by the cautionary
statements set forth below.
Participation in the Exchange Offers is subject to a number of material
risks, including those enumerated below. Prior to deciding whether to
participate in the Exchange Offers, each Holder should carefully consider all of
the information contained in this Offering Circular, especially the factors
described or cross-referenced in the following paragraphs:
Leverage; Ability to Service Debt and Pay Preferred Stock Dividends
At June 30, 1998 the Company had outstanding an aggregate of $287 million of
long-term debt (including current portion) and $38 million of redeemable
preferred stock and had a stockholders' deficiency of $175 million. Of such
long-term debt and preferred stock, $12 million, $25 million and $27 million
matures in 1999, 2000 and 2001, respectively. In addition, the Company may incur
additional indebtedness and issue additional redeemable preferred stock from
time to time to refinance its existing indebtedness, or for other general
corporate purposes. The degree to which the Company is leveraged could have
important consequences to holders of the Old Debt Securities including the
following: (i) a substantial portion of the Company's cash flow from operations
will be dedicated to the payment of interest, dividends, principal and other
repayment obligations, thereby reducing the funds available to the Company for
its operations and future acquisitions, (ii) the Company's ability to obtain
additional financing in the future may be impeded and (iii) the Company's degree
of leverage may make it vulnerable to a downturn in its business or of the
economy in general. In the event that the Company is unable to complete the Star
Gas Transaction, it may need to find alternate sources of additional equity
capital and it may need to seek to restructure its debt obligations and
preferred stock, of which there can be no assurances.
Further Subordination of Old Debt Securities
The consummation of the Exchange Offers will significantly increase the
amount of debt that will be senior in right of payment to the Old Debt
Securities not exchanged in the Exchange Offers. Assuming the Minimum Debt
Exchanges, the consummation of the Exchange Offers would result in an aggregate
of $185.6 million in New Debt Securities becoming senior in right of payment to
the Old Debt Securities not exchanged in the Exchange Offers. The foregoing is
the minimum amount: exchanges in excess of the Minimum Debt Exchanges would
further increase the principal amount of the New Debt Securities that would be
senior in right of payment to the Old Debt Securities not exchanged in the
Exchange Offer. The New Debt Securities will constitute Senior Debt (as defined
in the Old Indentures) and consequently, the New Debt Securities will rank
senior in right of payment to the Old Debt Securities.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property, the
holders of Senior Debt, including holders of the New Debt Securities, will be
entitled to be paid in full before any payment may be made with respect to the
Old Debt Securities. In the event of a bankruptcy, liquidation or reorganization
of the Company, holders of the Old Debt Securities will participate ratably with
all holders of subordinated indebtedness of the Company that is deemed to be of
the same class as the Old Debt Securities, and potentially with all other
general creditors of the Company, based upon the respective amounts owed to each
holder or creditor, in the remaining assets of the Company. In any of the
foregoing events, there can be no assurance that there would be sufficient
assets to pay amounts due on the Old Debt Securities. As a result, holders of
Old Debt Securities may receive less, ratably than the holders of New Debt
Securities and other Senior Debt.
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Adverse Effects of the Old Debt Amendments on Holders of Unexchanged Old Debt
Securities
Upon completion of the Exchange Offers, the Old Indentures will be amended
to remove substantially all of the covenants, including covenants that currently
restrict the Company's and its subsidiaries' abilities to (i) incur additional
debt and issue additional preferred stock, (ii) make dividends, distributions,
and other payments with respect to their capital stock and subordinated debt,
(iii) limit subsidiary dividends, (iv) enter into transactions with affiliates
and (v) create liens. Such amendments will also terminate the Company's
obligation to repurchase the Old Debt Securities upon certain change of control
events, including the Star Gas Transaction. As of the date of this Offering
Circular, 57.8% of the Holders of the Old Debt Securities have agreed to
participate in the Exchange Offers. See "Agreements with Consenting Debt
Holders." The elimination of these covenants could permit the Company and its
subsidiaries to take actions that could increase the credit risks associated
with the Old Debt Securities, reduce the market price for the Old Debt
Securities, or otherwise adversely affect the interests of holders of the Old
Debt Securities. In addition, the New Debt Securities will be senior in right of
payment to the Old Debt Securities.
The proposed Old Debt Amendments are intended to facilitate the consummation
of the Star Gas Transaction and will have the effect of providing the Company
with flexibility to, among other things, incur debt, pay dividends and make
other payments with respect to its capital stock and subordinated debt, enter
into transactions with affiliates and create liens. See "The Old Debt
Amendments."
Adverse Effects on Trading Markets
The consummation of the Exchange Offers will significantly reduce the
amounts of Old Debt Securities available for trading ("float"). Such reductions
in float may adversely affect the liquidity and market prices for the Old Debt
Securities, possibly to a significant degree. Any such reduction in float may
also increase the volatility of market prices for the Old Securities. The extent
of the markets, if any, for the Old Debt Securities, would depend on the amount
of Old Debt Securities that continue to be outstanding, the number of holders of
Old Debt Securities, the interest in maintaining a market in the Old Debt
Securities on the part of securities firms, and other factors. As a result,
there can be no assurance that any trading market for the Old Debt Securities
will exist after consummation of the Exchange Offers.
Liquidity of the New Debt Securities
There is no public market for the New Debt Securities, and the Company does
not intend to apply for listing of the New Debt Securities on any securities
exchange. No assurance can be given that an active trading market for the New
Debt Securities will develop or as to the liquidity of the trading market for
the New Debt Securities. If an active public market does not develop, the market
price and liquidity of the New Debt Securities may be adversely affected.
BACKGROUND OF THE EXCHANGE OFFERS
The Company
Petro is a Minnesota corporation engaged primarily in the retail
distribution of home heating oil in the Northeast and Mid-Atlantic states. Petro
believes that it is the largest retail distributor of home heating oil in the
United States, serving approximately 350,000 customers from 24 branch locations
with total sales of approximately $548.1 million for the year ended December 31,
1997. As an adjunct to its retail distribution business, Petro installs and
repairs heating equipment. Such services are typically not designed to generate
profits and are considered by Petro's management to be an integral part of the
basic heating oil business. To a limited extent, Petro also markets other
petroleum products, including diesel fuel and gasoline, to commercial customers.
In addition to its heating oil business, Petro currently owns a 40.66% equity
interest in the Partnership. Star Gas Corporation, a Delaware corporation and a
wholly-owned subsidiary of Petro, is the general partner of the Partnership and
Star Gas Propane, L.P., a Delaware limited partnership (the "Operating
Partnership").
Petro's executive offices are located at 2187 Atlantic Avenue, Stamford,
Connecticut 06902. Petro's telephone number is (203) 325-5400.
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The Partnership
The Partnership is a Delaware limited partnership engaged, through the
Operating Partnership, primarily in the retail distribution of propane and
related supplies and equipment to residential, commercial, industrial,
agricultural and motor fuel customers. Propane is used primarily as fuel for
space and water heating and cooking by the Partnership's residential and
commercial customers, which customers constitute the largest portion of its
customer base. The Partnership believes that it is the eighth largest retail
propane distributor in the United States, serving approximately 166,000
customers from 74 branch locations in 13 states in the Midwest and Northeast
with total sales of approximately $135 million for the year ended September 30,
1997. In addition to its retail business, the Partnership, through the Operating
Partnership, serves approximately 50 wholesale customers from its wholesale
operation in southern Indiana. The Partnership owns a 99% limited partnership
interest in, and is the sole limited partner of, the Operating Partnership.
The executive offices of the Partnership are located at 2187 Atlantic
Street, Stamford, Connecticut 06902. The Partnership's telephone number is (203)
328-7300.
The Star Gas Transaction; Purposes and Effects of the Exchange Offers
On August 14, 1998, Petro announced that it had reached an agreement in
principle with the Partnership to enter into a strategic business combination in
which Petro would become a wholly owned indirect subsidiary of the Partnership
substantially as described in that certain Press Release dated August 14, 1998,
a copy of which is attached hereto as Exhibit A. The Exchange Offers are being
made in connection with the Star Gas Transaction. Among other matters, the Star
Gas Transaction is subject to the receipt of the Minimum Debt Exchanges.
Petro has reported disappointing financial results in 1997 and 1998 for
several reasons. The primary factor has been the past two years of back-to-back
warm winters in the Company's core Northeast and Mid-Atlantic markets, with this
past year being the warmest of the century. In addition, the Company has
experienced customer attrition which has eroded its account base and negatively
impacted its earnings. In an effort to deal with these problems, Petro has
undertaken a corporate restructuring program to regionalize its operations and
reduce expenses. While this program reduced attrition and improved operating
performance, it has not been sufficient to offset the effect of the last two
winters' weather.
Although Petro's recently reported financial results reflect these
improvements, the Company is still very highly leveraged with a 7.3x net
Debt/EBITDA ratio and a 1.2x EBITDA/Interest ratio for the twelve months ended
June 30, 1998. At June 30, 1998 the Company had outstanding an aggregate of $287
million in long term debt, (including current portion) and $38 million of
redeemable preferred stock and had a stockholders' deficiency of $175 million.
In addition, the Company's ability to improve its highly leveraged condition is
severely limited by the unavailability of capital. Petro's negative annual cash
flow after maintenance capital expenditures and the payment of its fixed
obligations have caused it to halt investing in its regionalization and
acquisitions programs. In addition, Petro faces significant debt amortization
payments beginning in 2000.
In order to address this situation, Petro has reached an agreement in
principle to combine with the Partnership, of which it is the general partner.
As part of the Transaction, Petro will become a wholly owned indirect subsidiary
of the Partnership and will be recapitalized as follows. The Partnership will
issue 6.5 million new Common Units and $120 million of new debt using the
proceeds primarily to repay Petro's public debt and preferred stock. This will
enable the Company to redeem the New 10 1/8% Notes, the New 9 3/8% Debentures
and the New 12 1/4% Debentures at 100%, 100% and 103.5% of principal amount,
respectively, plus accrued interest pursuant to the Early Redemption Right.
Given Petro's financial condition, the value at which the Old Debt Securities
were trading prior to the announcement that the Company was seeking to
recapitalize, and the Company's prospects without this restructuring, the
Company believes this redemption should be attractive to the holders of Old Debt
Securities.
The Early Redemption Right will be implemented through the Exchange Offers
in which the participating Holders of Old Debt Securities will receive New Debt
Securities identical to the old except (i) for the Early Redemption Right, and
(ii) the New Debt Securities will be senior in right of payment to the Old Debt
Securities not exchanged in the
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Exchange Offers. Petro has authorized the issuance of approximately 797,000
shares of New Junior Preferred Stock, representing 3% of the Company's
outstanding equity, to be issued to the Holders that agree to exchange their Old
Debt Securities (as well as to Holders of Old Preferred Stock who exchange such
securities for New Preferred Stock). Under this plan, Petro will pay to each
exchanging holder a fee of 3.3732 shares of New Junior Preferred Stock per
$1,000 of principal amount exchanged. The New Junior Preferred Stock will be
exchanged for Common Units at the closing of the Transaction or is convertible
into shares of the Company's Class A Common Stock at any time at the option of
the holder. This fee will be payable to participating Holders upon the
consummation of the Exchange Offers, regardless of whether the Transaction
itself is consummated.
Petro's management has met with 13 of its largest institutional investors
which own over 57.8% in aggregate principal amount of the Old Debt Securities
and 100% of the Old Preferred Stock to review the Transaction and negotiate the
terms of the Early Redemption Right. All 13 of these investors support the
Transaction and have agreed to exchange their securities. However, the
Transaction is conditioned upon the Holders of 90% in aggregate principal amount
of the Old Debt Securities participating in the Exchange Offers. Therefore,
Petro is asking the Holders of all Old Debt Securities to exchange in order to
proceed with the Transaction.
The Company believes the Transaction is in the best interest of all Holders
of Old Debt Securities. Under its current capital structure Petro does not have
the funds to improve its highly leveraged credit condition. In the event that
less than 90% of the Old Debt Securities are exchanged, Petro will be unable to
proceed with the Transaction which could cause the market prices for the Old
Debt Securities to decline. In the longer run, if the Transaction is not
completed Petro faces significant amortization payments that may be difficult to
refinance. Petro currently intends to take advantage of the capital market for
MLP's, depending on market conditions, in order to raise capital to repay its
public debt at a premium to their recent trading values pursuant to the Early
Redemption Right. In addition, Petro will issue to exchanging Holders shares of
New Junior Preferred Stock that will be exchanged into Common Units at the
closing of the Transaction.
The proposed Old Debt Amendments are intended to facilitate the consummation
of the Star Gas Transaction. In addition, following the completion of the Star
Gas Transaction, the Old Debt Amendments will have the effect of providing the
Company with flexibility to, among other things, incur debt, pay dividends and
make other payments with respect to the Company's capital stock and subordinated
debt, limit subsidiary dividends, enter into transactions with affiliates and
create liens by eliminating the restrictions on such activities provided for in
the Old Indebtures. See "The Old Debt Amendments."
THE EXCHANGE OFFERS
The Exchange Offers
Petro hereby offers upon the terms and subject to the conditions set forth
in this Offering Circular and in the accompanying applicable Letter of
Transmittal to exchange the securities set forth below for the following
securities of the Company:
<TABLE>
<CAPTION>
For Each $1,000 Principal Amount of: The Holder Will Receive:
------------------------------------ ------------------------
<S> <C>
Old 10 1/8% Notes $1,000 principal amount of New 10 1/8% Notes plus 3.3732
shares of New Junior Preferred Stock
Old 9 3/8% Debentures $1,000 principal amount of New 9 3/8% Debentures plus 3.3732
shares of New Junior Preferred Stock
Old 12 1/4% Debentures $1,000 principal amount of New 12 1/4% Debentures plus
3.3732 shares of New Junior Preferred Stock
</TABLE>
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<PAGE>
In order for the Old Debt Amendments to become effective, each of the Old
Indentures requires that consents be obtained from the Holders of not less than
a majority in aggregate principal amount of the applicable issue of Old Debt
Securities, except for the elimination of Section 4.08 - Change in Control,
which requires a two-thirds consent. Each Holder of Old Debt Securities who
exchanges such Old Debt Securities for New Debt Securities pursuant to the
Exchange Offers shall be deemed to have granted a consent to certain amendments
to the Old Indentures described herein. The Old Debt Consents will be effective
upon the consummation of the Exchange Offers. Among other things, the Debt
Amendments would eliminate substantially all covenants from the Old Indentures.
See "Risk Factors." HOLDERS WHO EXCHANGE OLD DEBT SECURITIES FOR NEW DEBT
SECURITIES WILL BE DEEMED TO HAVE CONSENTED TO THE OLD DEBT AMENDMENTS.
This Offering Circular and the applicable Letter of Transmittal are first
being mailed to Holders on or about August 26, 1998.
General
As of August 15, 1998, there were outstanding $50 million aggregate
principal amount of Old 10 1/8% Notes, $75 million aggregate principal amount of
Old 9 3/8% Debentures and $81.25 million aggregate principal amount of Old
12 1/4% Debentures.
The Company expressly reserves the right, in its discretion, to (a) waive
any condition to the Exchange Offers (other than compliance with qualification
of the New Indentures under the TIA), (b) extend the Exchange Offers, (c) amend
the terms of the Exchange Offers or (d) subject to the provisions of the Old
Debt Securities Agreements, modify the consideration to be paid by the Company
pursuant to the Exchange Offers, provided that any such modified increased
consideration will be provided to all tendering Holders, even if they previously
tendered Old Debt Securities in the Exchange Offers prior to the modification.
Tendering Holders will not be obligated to pay brokerage commission fees or
transfer taxes with respect to the exchange of Old Debt Securities pursuant to
the Exchange Offers. The Company will pay all charges and expenses of the
Exchange Agent, the Information Agent and the Depositary in connection with the
Exchange Offers.
Expiration Date; Extensions; Termination; Amendments
The term "Expiration Date" shall mean 5:00 P.M. New York City time on
September 24, 1998, unless the Company, in its sole discretion, extends the
Exchange Offers in which case the term "Expiration Date" shall mean the last
date to which the Exchange Offers are extended.
In order to extend the Expiration Date, the Company will notify the Exchange
Agent of any extension by oral or written notice and will make a public
announcement thereof, prior to 9:00 a.m., New York City time, on the next
business day after the previously scheduled Expiration Date. Such announcement
may state that the Company is extending the Exchange Offers for a specified
period or on a daily basis.
The Company expressly reserves the right to (i) extend the Exchange Offers
or to terminate the Exchange Offers and not accept any Old Debt Securities
previously tendered if any of the conditions set forth herein under "--
Conditions of the Exchange Offers" shall exist or shall have occurred and shall
not have been waived or satisfied by the Company, by giving oral or written
notice of such extension or termination to the Exchange Agent, or (ii) amend at
any time, or from time to time, the terms of any of the Exchange Offers in any
manner deemed by it to be advantageous to the Holders of any issue of the Old
Debt Securities. Any such extension, termination or amendment will be followed
as promptly as practicable by a public announce ment thereof. If the terms of
any of the Exchange Offers are amended in a manner determined by the Company to
constitute a material change, the Company will promptly disclose such amendment
in a manner reasonably calculated to inform the Holders of such amendment and
the Company will extend the Exchange Offers for a period which the Company in
its discretion deems appropriate, depending upon the significance of the
amendment and the manner of disclosure to Holders of the Old Debt Securities, if
the Exchange Offers would otherwise expire during such period. Any such
extension shall be in compliance with the applicable rules and regulations of
the Commission.
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<PAGE>
Without limiting the manner in which the Company may choose to make a public
announcement of any extension, amendment or termination of the Exchange Offers,
the Company shall have no obligation to publish, advertise, or otherwise
communicate any such public announcement, other than by making a timely release
to the Dow Jones News Service. Any amendment applicable to the Exchange Offers
will apply to Old Debt Securities tendered regardless of when or in what order
such Old Debt Securities are tendered.
Procedure for Tendering
The acceptance by a Holder of the Exchange Offers pursuant to one of the
procedures set forth below will constitute an agreement between the such Holder
and the Company in accordance with the terms and subject to the conditions set
forth herein and in the applicable Letter of Transmittal.
Valid Tender. For Holders validly to tender Old Debt Securities pursuant to
the Exchange Offers, such Old Debt Securities, together with a properly
completed and duly executed Letter of Transmittal or facsimile thereof or an
Agent's Message (as defined in "-- Book-Entry Transfer") in connection with a
book-entry transfer, and any other required documents must be transmitted to and
received by the Exchange Agent at the appropriate address set forth on the back
page of this Offering Circular on or prior to the Expiration Date, except as
otherwise provided for under "-- Book-Entry Transfer" or "-- Guaranteed
Delivery" below. The white Letter of Transmittal relates to the Old 10 1/8%
Notes. The green Letter of Transmittal relates to the Old 9 3/8% Debentures.
The blue Letter of Transmittal relates to the Old 12 1/4% Debentures.
LETTERS OF TRANSMITTAL AND OLD DEBT SECURITIES SHOULD BE SENT ONLY TO THE
EXCHANGE AGENT. NO LETTER OF TRANSMITTAL AND NO OLD DEBT SECURITIES SHOULD BE
SENT TO THE COMPANY.
Signatures on the Letter of Transmittal need not be guaranteed by an
"Eligible Institution" defined as a firm which is a bank, broker, dealer, credit
union, savings association or other entity that is a member in good standing of
a recognized Medallion Program approved by the Securities Transfer Association
Inc. having an office in the United States, if the Old Debt Securities tendered
pursuant thereto are tendered: (i) by a registered Holder of the Old Debt
Securities who has not completed the boxes entitled "Special Issue Instructions"
or "Special Delivery Instructions" on the Letter of Transmittal; or (ii) for the
account of an Eligible Institution. If Old Debt Securities Stock are registered
in the name of a person other than the signer of the Letter of Transmittal, the
Old Debt Securities must be endorsed by the registered holder, or be accompanied
by a written instrument or instruments of transfer or exchange in form
satisfactory to the Company duly executed by the registered holder, in either
case with the signature guaranteed by an Eligible Institution.
Tenders of Old Debt Securities must be made in principal amounts of $1,000
and integral multiples thereof. If less than the entire principal amount of any
Old Debt Securities evidenced by a submitted certificate(s) is tendered, the
tendering Holder should fill in the principal amount tendered in the appropriate
box on the Letter of Transmittal with respect to the deposit being made, but
only to the extent of the principal amount of Old Debt Securities being
tendered. A reissued certificate representing such Old Debt Securities for the
principal amount not exchanged will be sent to such Holder, unless otherwise
provided in the appropriate box on the Letter of Transmittal. The entire
principal amount represented by the certificates for all Old Debt Securities
deposited with the Exchange Agent will be deemed to have been tendered unless
otherwise indicated.
Holders who exchange Old Debt Securities pursuant to the Exchange Offers
shall be deemed to have consented to the Old Debt Amendments and shall be deemed
to have granted the Company with an irrevocable proxy coupled with an interest
to vote all shares of New Junior Preferred Stock owned by such Holders in favor
of the Star Gas Transaction.
The term "Holder" with respect to tenders of Old Debt Securities means any
person in whose name Old Debt Securities are registered on the books of the
Company on the Record Date.
The method of delivery of the applicable Letter of Transmittal and all other
required documents to the Depositary is at the election and risk of each Holder.
Except as otherwise provided herein, such delivery will be deemed made only when
actually received. Instead of effecting delivery by mail, it is recommended that
Holders use an overnight or hand delivery service. If documents are sent by
mail, registered mail, with return receipt requested, properly insured, is
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<PAGE>
recommended. In all cases, sufficient time should be allowed to assure timely
delivery. NO DOCUMENTS SHOULD BE SENT TO THE COMPANY.
Book-Entry Transfer. The Exchange Agent will make available an account with
respect to the Old Debt Securities at The Depository Trust Company ("DTC"), for
purposes of the Exchange Offers, and any financial institution that is a
participant in the DTC system may make book-entry delivery of Old Debt
Securities by causing DTC to transfer such Old Debt Securities into such account
in accordance with DTC's procedures for such transfer. However, although
delivery of Old Debt Securities may be effected through book-entry transfer at
DTC, in any case either (i) the Letter of Transmittal (or facsimile thereof),
together with any required signature guarantees, or an Agent's Message, and any
other required documents, must be transmitted to and received by the Exchange
Agent at the appropriate address set forth on the back page of this Offering
Circular on or prior to the Expiration Date, or (ii) the guaranteed delivery
procedure described below must be complied with. Delivery of documents to DTC in
accordance with its procedures does not constitute delivery to the Exchange
Agent.
The term "Agent's Message" means a message, transmitted by DTC to, and
received by, the Exchange Agent and forming a part of a confirmation of a
book-entry transfer, which states that DTC has received an express
acknowledgment from the participant in DTC tendering the Old Debt Securities,
that such participant has received and agrees to be bound by the terms of the
Letter of Transmittal and that the Company may enforce such agreement against
the participant.
Guaranteed Delivery. If a Holder desires to tender Old Debt Securities and
such Holder's certificates for Old Debt Securities are not immediately available
or time will not permit such Holder's certificates for Old Debt Securities or
other required documents to reach the Exchange Agent before the Expiration Date,
such Holder's tender may be effected if:
(1) such tender is made through an Eligible Institution; and
(2) prior to the Expiration Date the Exchange Agent shall have received
from such Eligible Institution a properly completed and duly executed
Notice of Guaranteed Delivery (by facsimile transmission, mail or hand
delivery) substantially in the form provided by the Company; and
(3) the certificates for all tendered Old Debt Securities, or a
confirmation of a book-entry transfer of such Old Debt Securities into
the Exchange Agent's account at DTC as described above, a properly
completed and duly executed Letter of Transmittal (or facsimile
thereof) (or, in the case of a book-entry transfer, an Agent's
Message) and all other documents required by the Letter of
Transmittal, are received by the Exchange Agent within five NYSE
trading days after the Expiration Date.
Miscellaneous. All questions as to the form of documents and the validity
(including time of receipt) and acceptance for exchange of tendered Old Debt
Securities will be determined by the Company, in its sole discretion, which
determination shall be final and binding. The Company also reserves the absolute
right to reject any and all tenders not in proper form or the acceptance of
which would, in the opinion of the Company's counsel, be unlawful. The Company
also reserves the absolute right to waive any of the conditions of the Exchange
Offers or any defect or irregularity in the tender of any of the Old Debt
Securities. The Company's interpretation of the terms and conditions of the
Exchange Offers (including the Letter of Transmittal and the Instructions
thereto) will be final. No tender of Old Debt Securities will be deemed to have
been properly made until all defects and irregularities have been cured or
waived. Neither the Company, the Exchange Agent or any other person shall be
under any duty to give notification of any defects or irregularities in tenders
nor shall any of them incur any liability for failure to give such notification.
Any beneficial holder whose Old Debt Securities are registered or held of
record in the name of his broker, dealer, commercial bank, trust company or
other nominee and who wishes to exchange such Old Debt Securities should contact
such registered holder or holder of record promptly and instruct such Holder to
exchange such Old Debt Securities on his behalf. If such beneficial holder
wishes to tender Old Debt Securities, such beneficial holder must prior to
completing and executing the Letter of Transmittal, either make appropriate
arrangements to register ownership of the Old Debt Securities in such Holder's
name or obtain a properly completed bond power from the registered holder. The
transfer of record ownership of Old Debt Securities may take considerable time
and, depending on when such transfer is requested, may not be accomplished prior
to the Expiration Date.
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<PAGE>
Signatures on each Letter of Transmittal must be guaranteed unless executed
(i) by a registered holder of Old Debt Securities who has not completed the
boxes on the Letter of Transmittal entitled "Special Issue Instructions" or
"Special Delivery Instructions" or (ii) for the account of an Eligible
Institution (as defined below). In the event that signatures are required to be
guaranteed, such guarantees must be by a firm that is a member of a registered
national securities exchange or a member of the National Association of
Securities Dealers, Inc. or by a commercial bank or trust company having an
office in the United States (an "Eligible Institution").
If the Letter of Transmittal Letter, or any certificates, bond powers, stock
powers or proxies are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary or
representative capacity, such persons should so indicate when signing, and,
unless waived by the Company, proper evidence satisfactory to the Company of
authority to so act must be submitted.
If a Holder desires to tender Old Debt Securities pursuant to the Exchange
Offers, but is unable to locate the Old Securities to be tendered, such Holder
should write to or telephone the Exchange Agent about procedures for obtaining
replacement certificates for Old Debt Securities.
Acceptance of Old Debt Securities; Delivery of New Debt Securities and New
Junior Preferred Stock
Upon the terms and subject to the satisfaction or waiver of all conditions
to the Exchange Offers, the acceptance for exchange of Old Debt Securities
validly tendered and not withdrawn and delivery of New Debt Securities and New
Junior Preferred Stock will be made as promptly as practicable after the
Expiration Date. For purposes of the Exchange Offers, the Company shall be
deemed to have accepted for exchange validly tendered Old Debt Securities when,
as and if the Company has given oral or written notice thereof to the Exchange
Agent. The Exchange Agent will act as agent for the tendering Holders for the
purposes of receiving New Debt Securities and New Junior Preferred Stock from
the Company and transmitting the New Debt Securities and New Junior Preferred
Stock to such Holders. Tendered Old Debt Securities not accepted for exchange by
the Company will be returned without expense to the tendering Holders as
promptly as practicable following the Expiration Date.
The Company expressly reserves the right to delay acceptance of any tendered
Old Debt Securities or terminate the Exchange Offers and not accept for exchange
any tendered Old Debt Securities not theretofore accepted at its sole discretion
if any conditions set forth under "--Conditions of the Exchange Offers" shall
not have been satisfied or waived by the Company or to comply, in whole or in
part, with any applicable law. If, for any reason, acceptance for exchange of,
or delivery of the New Debt Securities in exchange for, Old Debt Securities
pursuant to the Exchange Offers is delayed, or the Company is unable to accept
Old Debt Securities for exchange, or to issue or deliver the New Debt
Securities, then without prejudice to the Company's rights set forth herein, the
Exchange Agent may nevertheless, on behalf of the Company, retain tendered Old
Debt Securities and such Old Debt Securities may not be withdrawn except to the
extent that the tendering Holder is entitled to withdrawal rights as described
in "--Withdrawal Rights" below. Notwithstanding the foregoing, the Company will
pay the consideration offered or return the Old Debt Securities tendered
promptly after the termination or withdrawal of the Exchange Offers.
Withdrawal Rights
Tenders of any issue of Old Debt Securities may be withdrawn and Old Debt
Consents may be revoked at any time until the Minimum Debt Exchanges with
respect to the applicable issue of Old Debt Securities have been received and
accepted by the Company. Old Debt Securities not otherwise accepted by the
Company may also be withdrawn at any time after November 1, 1998.
Holders who wish to exercise rights of withdrawal must give notice thereof
in writing or by facsimile transmission, which notice must be timely received by
the Exchange Agent at its address specified under "--Exchange Agent." Any notice
of withdrawal must specify the name of the person having tendered the Old Debt
Securities to be withdrawn, the name in which the Old Debt Securities are
registered, if different from that of the tendering Holder, and the principal
amount of Old Debt Securities to be withdrawn and must be signed by the
registered holder who tendered such Old Debt Securities in the same manner as
the original signature on the applicable Letter of Transmittal (including any
required signature guarantees) or be accompanied by evidence satisfactory to the
Company that the person withdrawing the tender has succeeded to the registered
ownership of the Old Debt Securities being withdrawn. If Old Debt Securities to
be withdrawn have been delivered to the Exchange Agent, they will not be
released until the Exchange
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<PAGE>
Agent shall have received written notice of withdrawal on which the serial
numbers on such Old Debt Securities are shown and the holder's signature has
been guaranteed by an Eligible Institution. If the Old Debt Securities to be
withdrawn have been tendered pursuant to the procedures for book-entry delivery
as set forth above under "--Procedure for Tendering," (i) any notice of
withdrawal must specify the name and number of the account at DTC to be credited
with the withdrawn Old Debt Securities and (ii) withdrawal will be effective
immediately upon receipt by the Exchange Agent of the notice or withdrawal, even
if physical release of the certificates has not yet been effected. Properly
withdrawn Old Debt Securities will be returned to the Holder thereof without
cost to such Holder as soon as practicable after withdrawal. All questions as to
validity, form and eligibility (including time of receipt) of the notice of
withdrawal will be determined by the Company in its sole discretion, which
determination shall be final and binding.
Withdrawal of tenders may not be rescinded, and any Old Debt Securities
withdrawn will thereafter be deemed not validly tendered for purposes of the
Exchange Offers. However, properly withdrawn Old Debt Securities may be
retendered by following one of the procedures described in "--Procedure for
Tendering" at any time prior to the Expiration Date.
Conditions of the Exchange Offers
The Company may decline to accept any Old Debt Securities tendered if,
without limitation, before the time of acceptance, there shall have occurred any
of the following events that, in the Company's sole judgment, makes it
inadvisable to proceed with such acceptance:
(a) a statute, rule or regulation enacted or promulgated by any
governmental authority shall be in effect or an order shall have been
entered in any action or proceeding before any United States federal or
state court or governmental agency or other United States regulatory or
administrative agency or commission, or a preliminary or permanent
injunction by a United States court of competent jurisdiction (collectively,
a "Governmental Action") shall have been issued and remain in effect, which
would have the effect of (i) making the Exchange Offers illegal or (ii)
otherwise preventing consummation of the Exchange Offers; or
(b) the Minimum Debt Exchanges shall not have been received by the
Company prior to the Expiration Date; or
(c) there shall have occurred or be likely to occur any event affecting
the business or financial affairs or the Partnership or the Company that, in
the reasonable judgment of the Company, would or might prohibit, prevent,
restrict or delay consummation of the Exchange Offers or the Star Gas
Transaction or that will, or is reasonably likely to, materially impair the
contemplated benefits of the Star Gas Transaction, the Exchange Offers or
the Old Debt Amendments to the Company; or
(d) there shall have occurred (i) any general suspension of or
limitation on trading in securities on the NYSE or in the over-the-counter
market (whether or not mandatory), (ii) any material adverse change in the
prices of the Old Debt Securities, (iii) a material impairment in the
general trading market for debt securities, (iv) a declaration of a banking
moratorium or any suspension of payments in respect of banks by federal or
state authorities in the United States (whether or not mandatory), (v) a
commencement of a war, armed hostilities or other national or international
crisis directly or indirectly relating to the United States, (vi) any
limitation (whether or not mandatory) by any governmental authority on, or
other event having a reasonable likelihood of affecting, the extension of
credit by banks or other lending institutions in the United States, or (vii)
any material adverse change in United States securities or financial markets
- generally, or in the case of any of the foregoing existing at the time of
the commencement of the solicitations a material acceleration or worsening
thereof.
In addition, the Company will not accept for exchange any Old Debt
Securities tendered, and no New Debt Securities will be issued in exchange for
any such Old Debt Securities, prior to the time that the New Indentures shall
have been qualified under the TIA, or at any time at which there shall be a stop
order with respect to the application for such qualification issued by the
Commission that shall remain in effect. The Company may decline to accept any
Old Debt Securities tendered to it if in the Company's sole judgment it would be
required to register the New Debt Securities and New Junior Preferred Stock
thereon under the Act.
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<PAGE>
If any of the foregoing events shall have occurred, the Company may (i)
terminate the Exchange Offers and return all tendered Old Debt Securities to
exchanging Holders (ii) extend the Exchange Offers and retain all tendered Old
Debt Securities until the Expiration Date or (iii) waive the unsatisfied
conditions (other than the receipt of the order of the Commission pursuant to
the TIA, which cannot be waived) with respect to the Exchange Offers and accept
all tendered Old Securities, as the case may be.
All the foregoing conditions are for the sole benefit of the Company and may
be asserted by the Company regardless of the circumstances giving rise to such
condition or may be waived by the Company, in whole or in part at any time and
from time to time. The failure by the Company at any time to exercise any of the
foregoing rights shall not be deemed a waiver of an ongoing right which may be
asserted at any time and from time to time.
Exchange Agent
The Chase Manhattan Bank will act as Exchange Agent for the Exchange Offers.
All correspondence in connection with the Exchange Offers and the Letters of
Transmittal should be addressed to the Exchange Agent as follows:
By Mail: By Facsimile: By Overnight or Hand:
The Chase Manhattan Bank (214) 946-5932 The Chase Manhattan Bank
c/o Chase Bank of Texas, N.A. c/o Chase Bank of Texas, N.A.
1201 Main Street, 18th Floor 1201 Main Street, 18th Floor
Dallas, Texas 75202 Dallas, Texas 75202
Attn: Frank Ivins Attn: Frank Ivins
Personal and Confidential Personal and Confidential
Telephone Number:
(214) 946-5678
Information Agent
Morrow & Co., Inc. has been appointed as Information Agent for the Exchange
Offers. All inquiries relating to the Exchange Offers should be directed to the
Information Agent at 445 Park Avenue, New York, New York 10022, telephone (212)
754-8000 or (800) 662-5200.
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<PAGE>
DESCRIPTION OF NEW DEBT SECURITIES
The terms of the New Debt Securities are identical to the terms of the Old
Debt Securities, except that (i) the New Debt Securities grant the Company the
Early Redemption Right, and (ii) the New Debt Securities will be senior in right
of payment to the Old Debt Securities not exchanged in the Exchange Offers. The
New Debt Securities grant the Company the right to redeem such Securities for
cash on or before April 1, 1999 in connection with the closing of the Star Gas
Transaction for the following prices (the "Redemption Prices") plus accrued but
unpaid interest thereon:
<TABLE>
<CAPTION>
New Debt Security Redemption Price
- ----------------- ----------------
(Plus accrued but unpaid interest)
<S> <C>
New 10 1/8% Notes 100% of face value
New 9 3/8% Debentures 100% of face value
New 12 1/4% Debentures 103.5% of face value
</TABLE>
The New Debt Securities will be issued pursuant to the New Indentures,
qualified under the TIA, which are identical to the Old Indentures, except (i)
for the inclusion of the Early Redemption Right, and (ii) the New Indentures
will contain subordination provisions making the New Debt Securities senior in
right of payment to the Old Debt Securities not exchanged in the Exchange
Offers. The Trustee and Registrar for the New Debt Securities is The Chase
Manhattan Bank.
Ranking. The New Debt Securities will be general unsecured obligations of
the Company, subordinated in right of payment to all existing and future Senior
Debt (as defined in each of the New Indentures). As of June 30, 1998, the Old
Debt Securities were, and the New Debt Securities would have been subordinated
in right of payment to approximately $78 million of Senior Debt. In addition,
the New Debt Securities will be senior in right of payment to the Old Debt
Securities which are not exchanged in the Exchange Offers. In addition, the Old
Debt Securities were, and the New Debt Securities will be effectively
subordinated to all indebtedness and other liabilities and commitments of the
Company's subsidiaries which, as of June 30, 1998, totalled approximately $6
million, consisting primarily of trade payables.
Exercise of Early Redemption Right by the Company. Notice of exercise of the
Early Redemption Right will be mailed to the Holders of New Securities at least
three days before the date (the "Payment Date") on which the Company proposes to
exercise the Early Redemption. The Notice will identify the New Securities to be
redeemed and will state the Payment Date, the Redemption Price, the name and
address of the Paying Agent, that the New Securities must be surrendered to the
Paying Agent to collect the Redemption Price and that unless the Company
defaults in paying the Redemption Price, interest and dividends, as applicable,
on the New Securities shall cease to accrue on and after the Payment Date. On or
prior to the Payment Date, the Company will deposit with the Paying Agent (or if
the Company or a subsidiary is the paying agent, will segregate and hold in
trust) money sufficient to pay the aggregate Redemption Price for the New
Securities.
Copies of the New Indentures and the Old Indentures are available upon
request from the Company. Requests should be directed to Petroleum Heat and
Power Co., Inc., Attention: George Leibowitz, Treasurer, 2187 Atlantic Street,
Stamford, CT 06902 (telephone (203) 325-5470).
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<PAGE>
AGREEMENTS WITH CONSENTING DEBT HOLDERS
Prior to the commencement of the Exchange Offers, Petro entered into the Old
Debt Securities Agreements with the Consenting Debt Holders pursuant to which
Petro has the right to redeem such securities on or before April 1, 1999 in
connection with the consummation of the Star Gas Transaction on the same terms
as the Early Redemption Right. The Consenting Debt Holders have agreed to
participate in the Exchange Offers. In connection with the execution of the Old
Debt Securities Agreements, the Consenting Holders received 3.3732 shares of New
Junior Preferred Stock for each $1,000 of aggregate principal amount of the Old
Debt Securities owned by such Holders. The Consenting Debt Holders will not
receive any additional shares of New Junior Preferred Stock for participating in
the Exchange Offers.
AGREEMENTS WITH CONSENTING PREFERRED STOCKHOLDERS
Prior to the commencement of the Exchange Offers, Petro entered into the Old
Preferred Agreements with the Consenting Preferred Stockholders. The Consenting
Preferred Stockholders are the holders of 1,200,000 shares of the Old Preferred
Stock, representing 100% of such series, pursuant to which the Consenting
Preferred Stockholders have agreed to exchange their shares of Old Preferred
Stock on a one-for-one basis for shares of the New Preferred Stock. The terms of
the New Preferred Stock are identical to the terms of the Old Preferred Stock,
except that the New Preferred Stock grants the Company the Preferred Early
Redemption Right to redeem such securities on or before April 1, 1999 in
connection with the consummation of the Star Gas Transaction at $23 per share
plus accrued but unpaid dividends thereon. The New Preferred Stock shall be
issued pursuant to the New Preferred Stock Certificate of Designation which,
other than the Preferred Early Redemption Right, will be identical to the Old
Preferred Stock Certificate of Designation. The Transfer Agent and Registrar for
the New Preferred Stock will be American Stock Transfer & Trust Company. Each
holder of Old Preferred Stock who receives New Preferred Stock shall be deemed
to have granted the Company a New Preferred Stock Proxy to vote all of the
shares of New Preferred Stock owned by such holder in favor of the Star Gas
Transaction. In connection with the execution of the Old Preferred Agreements,
the Consenting Preferred Stockholders received 3.3732 shares of New Junior
Preferred Stock for each $1,000 in aggregate liquidation preference of Old
Preferred Stock owned by such holders. The Consenting Preferred Stockholders
will not receive any additional shares of New Junior Preferred Stock in
connection with the Preferred Stock Exchange.
Ranking. The New Preferred Stock will rank pari passu in right of payment
with respect to all Parity Securities (as defined in the New Preferred Stock
Certificate of Designation), and junior in right of payment to all Senior
Securities (as defined in the New Preferred Stock Certificate of Designation),
including the Company's 1989 Preferred Stock, the Old Preferred Stock not
exchanged pursuant to the Exchange Offers and the Class B Common Stock. As of
June 30, 1998 the New Preferred Stock would have been (a) junior in right of
payment to approximately $287 million of total Indebtedness (as defined) of the
Company, (b) junior in right of payment to 11,000 shares of Class B Stock,
having an aggregate liquidation preference of $0.1 million, and (c) junior in
right of payment to 8,334 shares of 1989 Preferred Stock, having an aggregate
liquidation preference of $8.3 million.
Exercise of Early Redemption Right by the Company. Notice of exercise of the
Preferred Early Redemption Right will be mailed to the Holders of New Preferred
Stock at least three days before the date (the "Payment Date") on which the
Company proposes to exercise the Preferred Early Redemption Right. The Notice
will state the Payment Date, the Redemption Price, the name and address of the
Paying Agent, that the New Preferred Stock must be surrendered to the Paying
Agent to collect the Redemption Price and that unless the Company defaults in
paying the Redemption Price, dividends on the New Preferred Stock shall cease to
accrue on and after the Payment Date. On or prior to the Payment Date, the
Company will deposit with the Paying Agent (or if the Company or a subsidiary is
the paying agent, will segregate and hold in trust) money sufficient to pay the
aggregate Redemption Price for the New Preferred Stock.
Copies of the New Preferred Stock Certificate of Designation and the Old
Preferred Stock Certificate of Designation are available upon request from the
Company. Requests should be directed to Petroleum Heat and Power Co., Inc., 2187
Atlantic Street, Stamford, CT 06902, Attention: George Leibowitz, Treasurer
(telephone (203) 325- 5470).
24
<PAGE>
DESCRIPTION OF NEW JUNIOR PREFERRED STOCK
The New Junior Preferred Stock is a newly authorized class of non-voting
convertible junior preferred stock of the Company with dividend and liquidation
rights which are in all material respects equal to those of the Company's Class
A Common Stock, except for a liquidation preference of $.01 per share. Each
share of New Junior Preferred Stock is convertible at the option of the holder
at any time prior to the consummation of the Star Gas Transaction into one share
of Class A Common Stock and is subject to mandatory conversion into share of
Class A Common Stock if it is transferred prior to the consummation of the Star
Gas Transaction. In addition, the certificate of designation for the New Junior
Preferred Stock provides that the Company may elect to require the conversion of
the New Junior Preferred Stock into shares of Class A Common Stock at any time
after April 1, 1999. However, the Company has agreed not to exercise this right
until it has complied with the Registration Rights that were granted to
Consenting Debt Holders in connection with the execution of the Old Debt
Securities Agreements and to Consenting Preferred Stockholders in connection
with the execution of the Old Preferred Agreements.
The shares of New Junior Preferred Stock that are issued pursuant to the
Exchange Offers and the Preferred Stock Exchange (and the shares of Class A
Common Stock into which they may be converted) shall be deemed to have the
status of "restricted securities" as that term is defined in Rule 144 under the
Securities Act of 1933 as amended (the "Act") and may not be transferred,
assigned or sold prior to the earlier to occur of (i) May 31, 1999 and (ii) the
date on which the Company shall have complied with the Registration Rights,
except pursuant to an available exemption from the registration requirements of
the Act. In connection with the consummation of the Star Gas Transaction, each
share of New Junior Preferred Stock shall be exchanged (the "Exchange") for
.13064 of a freely tradeable common unit (the "Units) of limited partner
interest in the Partnership (with cash payable in lieu of fractional Units).
Each Holder who participates in the Exchange Offers shall be deemed to have
granted the Company an irrevocable proxy coupled with an interest (the "New
Junior Preferred Stock Proxies") to vote all of the shares of New Junior
Preferred Stock owned by such Holder in favor of the proposed Star Gas
Transaction.
As of June 30, 1998, on a pro forma basis, after giving effect to the
Exchange Offers (assuming a 100% participation rate) and the concurrent
Preferred Stock Exchange, the Company would have had approximately 797,000
shares of New Junior Preferred Stock then outstanding.
Copies of the New Junior Preferred Stock Certificate of Designation are
available upon request from the Company. Requests should be directed to
Petroleum Heat and Power Co., Inc., 2187 Atlantic Street, Stamford, CT 06902,
Attention: George Leibowitz, Treasurer (telephone (203) 325-5470).
25
<PAGE>
THE OLD DEBT AMENDMENTS
Because of certain restrictions in the Old Indentures, the Star Gas
Transaction cannot be consummated without the receipt of the Old Debt Consents
to the Old Debt Amendments. The Old Debt Amendments would make the changes
described below to the Old Indentures. The Company is not presently in violation
of any provisions of the Old Indentures. See "Background of the Exchange Offers
- -- The Star Gas Transaction; Purposes and Effects of the Exchange Offers."
Old 10 1/8% Notes Indenture
The Old Debt Amendments to the Old 10 1/8% Notes Indenture would:
1. Eliminate Section 4.03 (Limitation on Funded Debt).
2. Eliminate Section 4.04 (Limitation on Debt and Preferred Stock of
Subsidiaries).
3. Eliminate Section 4.05 (Limitation on Restricted Payments).
4. Eliminate Section 4.06 (Limitation on Restrictions on Distribution
from Subsidiaries).
5. Eliminate Section 4.07 (Limitation on Transactions with
Affiliates).
6. Eliminate Section 4.08 (Change of Control).
7. Eliminate Section 4.09 (Limitation on Liens on Subsidiary Stock).
8. Eliminate Section 4.12 (Refinancing Debt).
9. Eliminate Section 5.01 (net worth restrictions in connection with
limitations on mergers, consolidations and sales of assets).
Old 9 3/8% Debentures Indenture
The Old Debt Amendments to the Old 9 3/8% Debentures Indenture would:
1. Eliminate Section 4.03 (Limitation on Funded Debt).
2. Eliminate Section 4.04 (Limitation on Indebtedness and Preferred
Stock of Subsidiaries).
3. Eliminate Section 4.05 (Limitation on Restricted Payments).
4. Eliminate Section 4.06 (Limitation Restrictions on Distributions
from Subsidiaries).
5. Eliminate Section 4.07 (Limitation on Transactions with
Affiliates).
6. Eliminate Section 4.08 (Change of Control).
7. Eliminate Section 4.09 (Limitation on Liens on Subsidiary Stock).
8. Eliminate Section 5.01 (net worth restrictions in connection with
limitations on mergers, consolidations and sales of assets).
26
<PAGE>
Old 12 1/4% Debentures Indenture
The Old Debt Amendments to the Old 12 1/4% Debentures Indenture would:
1. Eliminate Section 4.03 (Limitation on Funded Debt).
2. Eliminate Section 4.04 (Limitation on Indebtedness and Preferred
Stock of Subsidiaries).
3. Eliminate Section 4.05 (Limitation on Restricted Payments).
4. Eliminate Section 4.06 (Limitation Restrictions on Distributions
from Subsidiaries).
5. Eliminate Section 4.07 (Limitation on Transactions with
Affiliates).
6. Eliminate Section 4.08 (Change of Control).
7. Eliminate Section 4.09 (Limitation on Liens on Subsidiary Stock).
8. Eliminate Section 5.01 (net worth restrictions in connection with
limitations on mergers, consolidations and sales of assets).
The Old Indentures provide that it is not necessary that Holders approve the
particular form of any proposed supplemental indenture, but it is sufficient if
such Holders approve the substance thereof. The foregoing statements are
summaries of the Old Debt Amendments and are subject to the detailed provisions
of the forms of supplemental indentures that will be used to effect the Old Debt
Amendments.
27
<PAGE>
CERTAIN U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following is a general discussion of certain material U.S. federal
income tax considerations to Holders of Old Debt Securities relating to the
Exchange Offers and the Old Debt Amendments. This summary is not a complete
description of all tax considerations that may be relevant to Holders of Old
Debt Securities and, in particular, does not address tax considerations that may
affect the treatment of certain special status taxpayers such as financial
institutions, broker-dealers, life insurance companies, tax-exempt organizations
(including IRAs), investment companies and foreign taxpayers. In addition, no
information is provided herein with respect to tax considerations under any
foreign, state or local laws.
The following discussion is based on the Internal Revenue Code of 1986, as
amended (the "Code"), Treasury Regulations promulgated thereunder ("Treasury
Regulations"), Internal Revenue Service ("IRS") rulings and judicial decisions,
all as in effect on the date hereof, and all of which are subject to change
(possibly with retroactive effect). The discussion does not consider the
particular facts or circumstances of any particular Holder of Old Debt
Securities. The Company has not sought and will not seek any rulings from the
IRS, nor has it sought or received any opinion of counsel, with respect to any
of the matters discussed herein. The discussion assumes that the Old Debt
Securities are held as capital assets within the meaning of the Code.
HOLDERS OF OLD DEBT SECURITIES ARE URGED TO CONSULT THEIR TAX ADVISORS
REGARDING THE TAX CONSEQUENCES OF TENDERING OR FAILING TO TENDER OLD DEBT
SECURITIES IN THE EXCHANGE OFFERS, THE ADOPTION OF THE OLD DEBT AMENDMENTS AND
RECEIPT OF THE NEW DEBT SECURITIES AND NEW JUNIOR PREFERRED STOCK, INCLUDING THE
APPLICATION AND EFFECT OF ANY GIFT, ESTATE, STATE, LOCAL, FOREIGN INCOME OR
OTHER TAX LAWS.
Consequences to Tendering Holders of Old Debt Securities
The U.S. federal income tax consequences to Holders of Old Debt Securities
will depend upon whether the consummation of the Exchange Offers results in a
significant modification of the Old Debt Securities and, therefore, results in a
deemed exchange ("Deemed Exchange") of the Old Debt Securities for New Debt
Securities for federal income tax purposes.
Under applicable Treasury Regulations, the modification of a debt instrument
is a "significant" modification if, based on all the facts and circumstances and
taking into account all changes to the old instrument, the legal rights or
obligations that are altered and the degree to which they are altered are
"economically significant." The Treasury Regulations do not address under what
circumstances an addition of an early call date, such as the Early Redemption
Right, would cause a Deemed Exchange. The Treasury Regulations do provide,
however, that, among other things, the change in yield of a debt instrument is a
significant modification if the yield of the modified instrument (determined
taking into account any payments made to the issuer or holder as consideration
for the modification) varies from the yield on the unmodified instrument
(determined as of the date of the modification from the date of the modification
to the final maturity date) by more than the greater of 1/4 of one percent (25
basis points) and 5 percent of the annual yield of the unmodified instrument.
The Treasury Regulations also provide that a change in the priority of a debt
instrument relative to other debt is a significant modification if it results in
"a change in payment expectations." In turn, such a change occurs if, as a
result of the modification the obligor's capacity to meet its payment
obligations is substantially enhanced or impaired. Finally, the Treasury
Regulations provide that the addition, deletion or alteration of customary
accounting or financial covenants is not a "significant" modification.
If the Old Debt Amendments were treated as resulting in a Deemed Exchange of
the Old Debt Securities for New Debt Securities, the tax treatment to a Holder
would, in turn, depend upon whether the Old Debt Securities and New Debt
Securities constitute "securities" for U.S. federal income tax purposes and
whether the New Debt Securities and the Old Debt Securities are "publicly
traded" within the meaning of the Treasury Regulations. If either the Old Debt
Securities or the New Debt Securities are not "securities" for U.S. federal
income tax purposes, a Holder would realize capital gain (subject to the market
discount rules discussed below) or capital loss equal to the difference between
the amount deemed realized by that Holder in the Deemed Exchange and his
adjusted tax basis in the Old Debt Securities. A Holder's
28
<PAGE>
amount deemed realized would be the issue price of the New Debt Securities,
which would likely be the trading value of the New Debt Securities at the time
the Exchange Offer is consummated (assuming that the New Debt Securities are
"publicly traded" within the meaning of the Treasury Regulations) plus,
possibly, the fair market value of the New Junior Preferred Stock if the New
Junior Preferred Stock is treated as additional consideration for the Old Debt
Securities in the Deemed Exchange. If, however, the New Debt Securities are not
"publicly traded" within the meaning of the Treasury Regulations, but the Old
Debt Securities are, the issue price of the New Debt Securities would be the
trading value of the Old Debt Securities at the time the Exchange Offer is
consummated. If neither the New Debt Securities nor the Old Debt Securities are
"publicly traded" within the meaning of the Treasury Regulations, the issue
price of the New Debt Securities would be the stated principal amount of the New
Debt Securities.
Generally, a Holder's adjusted tax basis for a note will be equal to the
cost of the note to that Holder, increased in the case of a note issued with
original issue discount ("OID") by the amount of any OID previously includible
in that Holder's gross income in respect of such note up to the date of
disposition, less payments (other than "qualified stated interest payments")
received on the note. Qualified stated interest is interest that is
unconditionally payable at least annually at a fixed rate. A Holder's tax basis
in a note also would be increased by any market discount previously included in
income by that Holder pursuant to an election to include market discount in
gross income currently as it accrues, and would be reduced by the accrual of
amortizable bond premium which the Holder has previously elected to deduct from
gross income on an annual basis.
An exception to the capital gain treatment described above may apply to a
Holder who purchased a note at a "market discount." Subject to the statutory de
minimis exception, market discount is the excess of the "face amount" of such
note (or in the case of a note issued with OID, the "revised issue price" of the
note) over the Holder's tax basis in such note immediately after its acquisition
by such Holder. The revised issue price of a note issued with OID is the sum of
the note's issue price and the aggregate amount of OID includible in the income
of all Holders before the taxpayer. In general, unless the Holder has elected to
include market discount in income currently as it accrues, any gain realized by
a Holder on the sale of a note having market discount in excess of a de minimis
amount will be treated as ordinary income to the extent of the market discount
that has accrued (on a straight line basis or, at the election of the Holder, on
a constant interest basis) while such note was held by the Holder.
If, however, the Old Debt Securities and New Debt Securities are
"securities" for federal income tax purposes, the Deemed Exchange should qualify
as a tax-free recapitalization. Generally, although the matter is not free from
doubt, debt instruments with terms of five years or more are treated as
"securities." In this regard, even if the modifications were significant under
the Treasury Regulations, with respect to the Old 9 3/8% Debentures and the Old
12 1/4% Debentures, the Old Debt Amendments likely result in a Deemed Exchange
of securities with a maturity of five or more years and therefore would likely
be treated as a tax-free recapitalization for U.S. federal income tax purposes.
If the Old Debt Securities and New Debt Securities are "securities" for U.S.
federal income tax purposes and the exchange qualifies for recapitalization
treatment, a Holder would recognize no loss and would recognize gain only to the
extent, if any, of the lesser of (i) the fair market value of the excess of the
"principal amount" (within the meaning of section 354 of the Code) of the New
Debt Securities over the "principal amount" of the Old Debt Securities
surrendered and (ii) the amount of gain described above. The meaning of the term
"principal amount" is unclear under current law, and could mean either the state
principal amount or the issue price. In addition, for purposes of computing the
excess of the "principal amount" in a recapitalization, a portion of the Old
Debt Securities may be viewed as exchanged for New Junior Preferred Stock. If
so, the comparison of the "principal amount" described in (i) of the preceding
sentence might be measured by the difference between the entire New Debt
Securities received and a portion of Old Debt Securities deemed surrendered. In
addition, if the Deemed Exchange is a recapitalization, (i) the holding period
of New Debt Securities (and New Junior Preferred Stock, if deemed issued as
additional consideration in the recapitalization) would include the holding
period of the Old Debt Securities, and (ii) the basis of the Old Debt Securities
would be carried over and, if New Junior Preferred Stock is deemed issued as
additional consideration in the recapitalization, would likely be allocated
between the New Debt Securities and New Junior Preferred Stock based on their
relative fair market values.
There is no direct authority concerning the federal income tax consequences
of the receipt of the New Junior Preferred Stock. If Holders are treated as
exchanging their Old Debt Securities for new securities for federal income tax
purposes, the New Junior Preferred Stock could be treated as additional
consideration received in such exchange, which would increase the amount of any
gain or reduce the amount of any loss recognized on the Deemed Exchange, and the
consequences discussed above would apply. However, it is possible that the New
Junior Preferred Stock might be treated as a separate fee for consenting to the
Exchange Offers. If so, (i) the fair market value of the New Junior Preferred
Stock
29
<PAGE>
would be taxable as ordinary income to the Holders, and would not be considered
a party of the exchange (or a part of a recapitalization), (ii) the holding
period of the New Junior Preferred Stock would start on the day following the
date of the receipt and (iii) the basis of the New Junior Preferred Stock would
be its fair market value.
If the consummation of the Exchange Offers is a Deemed Exchange, the Old
Debt Securities or the New Debt Securities are "publicly traded" and the New
Debt Securities have an issue price (i.e., trading value) that is less than
their principal amount on the date of the exchange, the New Debt Securities
would generally have OID for U.S. federal income tax purposes. In such a case,
each Holder of New Debt Securities would generally be required to include that
OID in income as it accrues under a constant yield method in advance of cash
payments attributable to such income (regardless of whether the Holder is a cash
or accrual basis taxpayer). The amount of OID on the New Debt Securities will be
considered de minimis, and thus ignored, if it is less than the product of the
number of complete years to maturity and 1/4 of 1% of the stated redemption
price at maturity of such New Debt Securities. In addition, if the transaction
is treated as a recapitalization, a Holder with a carryover basis in the New
Debt Securities in excess of their issue price would be treated as having
acquired the New Debt Securities at an acquisition premium to the extent of such
excess and would be able to reduce the amount of OID (includable as income) by
the amount of such acquisition premium.
The Company intends to take the position that the Old Debt Amendments will
not cause a significant modification of the terms of the Old Debt Securities,
and therefore will not result in a Deemed Exchange of the Old Debt Securities
for U.S. federal income tax purposes and, further, that even if the
modifications were significant, the Deemed Exchange would be treated as a
tax-free recapitalization because the Company believes that (i) the
modifications of the debt instruments are not economically significant based on
all the facts and circumstances (including any change in priority of the debt);
(ii) taking into account the New Junior Preferred Stock paid to the Holders as
consideration for the modification, any change in the yield is not significant
under the Treasury Regulations; (iii) any change in priority of the debt will
not result in a change in payment expectations within the meaning of the
Treasury Regulations; and (iv) any Deemed Exchange would result in an exchange
of securities for U.S. federal income tax purposes. Under this position, the Old
Debt Amendments generally should result in no U.S. federal income tax
consequences to a Holder, except to the extent a Holder would recognize ordinary
income in an amount equal to any New Junior Preferred Stock received as a
separate payment in the nature of a fee paid for a Holder's consent. The
Internal Revenue Service could assert, however, that, as a result of the
modifications to the Old Debt Securities pursuant to the Old Debt Amendments, a
Holder should be treated as having exchanged its Old Debt Securities for New
Debt Securities subject to the U.S. federal income tax consequences summarized
above.
Consequences to Non-Tendering Holders of Old Debt Securities
If the Old Debt Amendments are not "significant" modifications of the Old
Debt Securities for federal income tax purposes, then the adoption of the Old
Debt Amendments should not result in a taxable transaction for Holders of Old
Debt Securities who do not tender in the Exchange Offer ("Non-Tendering
Holders"). Consequently, Non-Tendering Holders would continue to have the same
tax basis and holding period with respect to the Old Debt Securities as they had
before the adoption of the Old Debt Amendments.
If the Old Debt Amendments are "significant" modifications of the Old Debt
Securities for U.S. federal income tax purposes, then the adoption of the Old
Debt Amendments would result in a sale or exchange of the Old Debt Securities
for new debt instruments, as modified by the Old Debt Amendments (the "Modified
Old Debt Securities"). In that case, assuming the Modified Old Debt Securities
and the Old Debt Securities each are "securities" for federal income tax
purposes, loss would not be recognized by Non-Tendering Holders, while gain
would be recognized by Non-Tendering Holders to the extent that the "principal
amount" of the Modified Old Debt Securities exceeds the "principal amount" of
the Old Debt Securities. The meaning of the term "principal amount" under
current law, however, is unclear. See the discussions above for the computation
of the amount of gain and the application of the rules relating to a
recapitalization, and how a recapitalization would affect recognition of gain or
loss.
THE FOREGOING SUMMARY IS INCLUDED HEREIN FOR GENERAL INFORMATION ONLY AND
DOES NOT CONSTITUTE TAX ADVICE. EACH HOLDER OF OLD DEBT SECURITIES SHOULD
CONSULT ITS OWN TAX ADVISOR AS TO THE SPECIFIC CONSEQUENCES OF TENDERING OR
FAILING TO TENDER THE OLD DEBT SECURITIES PURSUANT TO THE EXCHANGE OFFERS .
30
<PAGE>
PETROLEUM HEAT AND POWER CO., INC.
IMPORTANT
Holders of Old Debt Securities who wish to accept the Exchange Offers should
either (i) request their broker, dealer, commercial bank, trust company or
nominee to effect the transaction for them or (ii) complete and sign the
applicable Letter of Transmittal, or a facsimile thereof, having their
signatures thereon guaranteed if required by Instruction 3 of the Letter of
Transmittal, and forward the Letter of Transmittal, together with the Old Debt
Securities and all other required documents to the Exchange Agent.
The Exchange Agent
THE CHASE MANHATTAN BANK
By Mail: By Facsimile: By Overnight Courier or Hand:
The Chase Manhattan Bank (214) 946-5932 The Chase Manhattan Bank
c/o Chase Bank of Texas, N.A. c/o Chase Bank of Texas, N.A.
1201 Main Street, 18th Floor 1201 Main Street, 18th Floor
Dallas, Texas 75202 Dallas, Texas 75202
Attn: Frank Ivins Attn: Frank Ivins
Personal and Confidential Personal and Confidential
Telephone Number:
(214) 946-5678
The Information Agent
MORROW & CO., INC.
445 Park Avenue
New York, New York 10022
(800) 662-5200 (Toll-Free)
ADDITIONAL COPIES
Requests for additional copies of the Offering Circular and the Letters of
Transmittal should be directed to the Exchange Agent, the Information Agent or
the Company. You may also contact your local broker, dealer, commercial bank or
trust company for assistance concerning the Exchange Offers.
<PAGE>
CONTACT:
Star Gas: Richard F. Ambury
Vice President-Finance
203-328-7313
Robert L. Rinderman
David C. Collins
Jaffoni & Collins Incorporated
212/835-8500 or [email protected]
------------------
Petro: George Leibowitz
Treasurer
203/325-5470
Jim Bottiglieri
Vice President and Controller
203/325-5460
FOR IMMEDIATE RELEASE
STAR GAS PARTNERS, L.P. AND PETROLEUM HEAT AND POWER CO., INC.
ANNOUNCE AGREEMENT IN PRINCIPLE TO COMBINE
STAMFORD, CT (August 14, 1998) -- Star Gas Partners, L.P., ("Star" or the
"Partnership") (NYSE:SGU) and Petroleum Heat and Power Co., Inc. ("Petro" or
the "Company") (NASDAQ:HEAT), jointly announced today that they have reached
an agreement in principle to enter into a strategic business combination in
which Petro would become a wholly-owned subsidiary of Star. This transaction
would be effected through Petro shareholders exchanging their approximately
26.6 million shares of Petro Common Stock for approximately 3.6 million Star
master limited partnership units which will be subordinated to the existing
Star Common Units.
Star Gas currently distributes to its partners, on a quarterly basis, all of
its Available Cash, which is generally all of the cash receipts of the
Partnership less all cash disbursements, with a targeted Minimum Quarterly
Distribution ("MQD") of $0.55 per Unit, or $2.20 per Unit on an annualized
basis. In connection with the Petro transaction, the Partnership will
increase the MQD to $.575 per unit or $2.30 per Unit on an annualized basis.
This increase in the MQD reflects the expectation that the transaction will
be accretive to the Partnership. The increase in the MQD will also serve to
raise the threshold needed to end the subordination period.
Of the 3.6 million subordinated Partnership units anticipated to be
distributed to Petro shareholders, 2.8 million will be Senior Subordinated
Units and approximately 857,000 will be Junior Subordinated Units and General
Partnership Interests. The Senior Subordinated Units will be publicly
registered and tradable (they are expected to be listed on the NYSE) and will
be subordinated in distributions to Star's Common Units. The Junior
Subordinated Units and General Partnership Interests will not be registered
nor publicly tradable and will be subordinated to both the Common Units and
the Senior
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<PAGE>
Star Gas and Petroleum Heat and Power Announce Agreement to Combine
8/14/98 page 2
Subordinated Units. The Senior Subordinated Units will be exchanged with
holders of Petro's publicly traded Class A common stock and the Junior
Subordinated Units and General Partnership Interests will be exchanged with
individuals that currently own Petro's Class C common stock. Certain holders
of the Company's Class C Common Stock will also exchange their shares for
Senior Subordinated Units.
It is currently contemplated that 21,177,000 shares of Petro Common Stock
will be exchanged for 2,767,000 Star Senior Subordinated Units. 5,386,000
shares of Petro common stock, held by certain individuals who currently own
Petro Class C common stock, including Irik P. Sevin, Chairman of Petro and
Star and other members of a group that currently controls Petro, will be
exchanged for 579,000 Junior Subordinated Units and General Partnership
Interests which are economically equivalent to 279,000 Junior Subordinated
Units.
Under the partnership subordinated provision, distributions on Star Senior
Subordinated Units may be made only after distributions of Available Cash on
Common Units meet the MQD requirement. Distributions on Star Junior
Subordinated Units and to the General Partner may be made only after
distributions of Available Cash on Common Units and Senior Subordinated Units
meet the MQD requirement. The Subordination Period will extend until the
Partnership earns and pays its MQD for three years. In any event, as a
condition of this transaction, the Partnership agreement will be amended so
that no distribution will be paid on the Senior Subordinated Units, Junior
Subordinated Units, or to the General Partner except to the extent Available
Cash is earned from operations.
Like many other publicly traded master limited partnerships, the Partnership
contains a provision which provides the General Partner with incentive
distributions in excess of certain targeted amounts. This provision will be
modified so that should there be any such incentive distributions, they will
be made pro rata to the Senior Subordinated Units and Junior Subordinated
Units as well as to the General Partner.
In connection with the Transaction, the Senior Subordinated Units, Junior
Subordinated Units and General Partnership Interests can earn, pro rata,
303,000 additional Senior Subordinated Units each year that Petro provides
$.50 per unit accretion to Star to a maximum of 909,000 additional Senior
Subordinated Units.
In connection with the transaction, Star intends to raise approximately $140
million through a public offering of Common Units and $120 million through a
public or private offering of debt securities. The net proceeds from these
offerings will be used primarily to redeem approximately $240 million in
Petro public and private debt and preferred stock. Any such offering will be
made only by means of a prospectus or in transactions not requiring
registration under securities laws. This announcement does not constitute an
offer to sell any securities. As part of this recapitalization, Petro also
intends to restructure $66.2 million of privately held notes.
Petro has reached an agreement with institutional holders of an aggregate of
$149 million or 63.1% of such public debt and preferred stock to permit the
redemption of such securities at the closing the Star Gas/Petro Transaction.
This agreement allows
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<PAGE>
Petro to redeem its 9 3/8% Subordinated Debentures, 10 1/8% Subordinated
Notes and 12 1/4% Subordinated Debentures at 100%, 100% and 103.5% of
principal amount, respectively, and to redeem its 12 7/8% Preferred Stock at
$23 per share. In consideration for this early redemption right, Petro has
agreed to issue to such holders 3.37 shares of newly issued Petro Junior
Convertible Preferred Stock for each $1,000 in principal amount or
liquidation perference of such securities. Each share of Petro Junior
Convertible Preferred Stock will be exchangeable into .13 of a Star common
Unit at the conclusion of this transaction representing a maximum 104,000 MLP
units. Should the transaction not be consummated, the Junior Preferred Stock
will be converted into a like number of shares of Class A Common Stock.
Petro will offer to the remaining holders of it's publicly traded debt and
preferred stock the same right of early redemption under the same terms and
conditions as agreed to by the consenting holders. This proposal will be
made through an exchange offer that is expected to commence shortly. This
transaction and the associated Petro recapitalization are subject to
receiving an agreement to the early redemption from at least 90% of the
outstanding publicly traded debt and preferred stock.
Petro currently has a 40.7% equity interest in the Partnership and a
subsidiary of Petro is its general partner. After completion of the
transaction, the Petro shareholders will own approximately 26% of Star's
equity through Subordinated Units and General Parnership Interests. The
holders of the Partnership's Common Units (including an estimated 6.4 million
Common Units that will be sold in the Partnerships $140 million public
offering) will own an aggregate approximately 74% equity interest in the
Partnership following the completion of the transaction. The General Partner
of the Partnership will be a newly organized Delaware limited liability
company that will be owned by members of Petro's current control group.
In commenting on the proposed transaction, Joseph Cavanaugh, President of
Star, "We believe that this strategic combination will have a number of
benefits for the Partnership. Firstly, we are pleased with having achieved
our goal of structuring a transaction which we believe will be immediately
accretive, enabling us to increase the Partnership's MQD to $2.30 annually.
Secondly, we belive this strategic combination will provide an additional
source of attractive acquisition opportunities. Petro is the largest retail
heating oil company in the country and the primary consolidator of that
highly fragmented industry. Over the past nineteen years Petro has acquired
189 distributorships. As such, we belive this combination should provide the
Partnership with a platform to increase its acquisition activities. Thirdly,
over the past two and one-half years, in an effort to take advantage of its
size, Petro has regionalized its operations, accessed developments in
computer and communication technology, and entered into cross-marketing
partnerships. These programs have provided attractive productivity,
operational and marketing results which should continue to benefit the
Partnership Finally, this combination significantly increases the size and
market capitalization of the Partnership."
Irik P. Sevin, CEO of Petro stated, "We believe the proposed transaction will
enable Petro to achieve its stated objective of accessing equity to
recapitalize and delever. This should permit us to continue our historically
active acquisition program and
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<PAGE>
facilitate the funding of our operational and marketing initiatives. In
addition, the MLP structure should provide a better valuation format for
Petro which is cash flow oriented and which has been the only publicly traded
company in its industry. The transaction should provide our shareholders
with the resumption of annual cash distributions which Petro had historically
made."
The Board of Directors of Star has appointed an independent committee of
directors to represent Star Gas in this matter. This committee has retained
A.G. Edwards & Sons, Inc. to act as its financial advisor and to determine
the fairness of this transaction to the Star Common Unit holders. The Board
of Directors of Petro has retained PaineWebber Incorporated as its financial
advisor and Dain Rauscher Wessels to render an opinion as to the fairness to
Petro of this transaction.
The completion of the Transaction is subject to the negotiation and execution
of definitive agreements, the receipt of regulatory approvals, the approval
of Star's nonaffiliated common unit holders and Petro's nonaffiliated common
shareholders, other necessary partnership and corporate approvals, fairness
opinions from A.G. Edwards & Sons, Inc. and Dain Rauscher Wessels, and the
agreement to early redemption by the holders of 90% of Petro's publicly
traded debt and preferred stock.
Petro and Star will continue to operate as separate business units and this
transaction will not have an impact on the day-to-day operations of either
entity. There will be no reduction in the number of employees as a result of
this transaction.
Petroleum Heat and Power Co., Inc. is the largest retail distributor of home
heating oil in the nations, serving approximately 350,000 customers in the
Northeast and Mid-Atlantic states, including the metropolitan areas of New
York, Boston, Washington, D.C., Baltimore, and Providence. Star Gas Partners
L.P., the eighth largest retail propane distributor services more than
166,000 customers throughout 74 locations in the Midwestern states of Ohio,
Indiana, Michigan, Kentucky, West Virginia and in the Northeast, from Maine
to Southern New Jersey. Star operates under several trademarks and trade
names, including: Star Gas Service, Silgas, Blue Flame L.P. Gas, Maingas,
Arrow Gas, Mid-Hudson Valley Propane, Coleman Gas Service, H&S Gas, Wilhoyte
L.P. Gas, Rural National Gas, Pearl Gas, Bay State-Arrow Gas, Knowles L.P.
Gas and Lowe Bros & Dad.
This Press Release includes "forward-looking statements," within the meaning
of Section 27A of the Securities Act and Section 21E of the Exchange Act,
which represent Petro and Star's expectations or beliefs concerning future
events that involve risks and uncertainties. Although Petro and Star Gas
believe that the expectations reflected in such forward-looking statements
are reasonable, Petro and Star Gas can give no assurance that such
expectations will prove to have been correct. Investors and prospective
investors should read this Press Release in conjunction with Petro and Star
Gas' Forms 10-K and 10-Q which include additional information that could
affect Petro and Star Gas' financial results.
<PAGE>
- --------------------------------------------------------------------------------
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON SEPTEMBER
24, 1998 UNLESS EXTENDED (THE "EXPIRATION DATE"). TENDERS MAY BE WITHDRAWN AND
CONSENTS MAY BE REVOKED AT ANY TIME UNTIL THE MINIMUM DEBT EXCHANGE HAS BEEN
RECEIVED AND ACCEPTED BY THE COMPANY.
- --------------------------------------------------------------------------------
PETROLEUM HEAT AND POWER CO., INC.
2187 Atlantic Street
Stamford, Connecticut 06902
LETTER OF TRANSMITTAL, CONSENT AND PROXY
For 9 3/8% Subordinated Debentures due 2006
(CUSIP No. 716600AE1)
Exchange Agent:
THE CHASE MANHATTAN BANK
By Registered or Certified Mail: By Overnight Courier:
The Chase Manhattan Bank The Chase Manhattan Bank
c/o Chase Bank of Texas, N.A. c/o Chase Bank of Texas, N.A.
1201 Main Street, 18th Floor 1201 Main Street, 18th Floor
Dallas, Texas 75202 Dallas, Texas 75202
Attn: Frank Ivins Attn: Frank Ivins
Personal and Confidential Personal and Confidential
By Hand:
The Chase Manhattan Bank By Facsimile:
c/o Chase Bank of Texas, N.A.
1201 Main Street, 18th Floor Facsimile Transmission: (214) 949-5932
Dallas, Texas 75202 Confirm by Telephone: (214) 949-5678
Attn: Frank Ivins For Information: (214) 949-5678
Personal and Confidential
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY
The undersigned acknowledges receipt of (i) the Offering Circular dated
August 26, 1998 (the "Offering Circular") of Petroleum Heat and Power Co., Inc.,
a Minnesota corporation (the "Company"), and (ii) this Letter of Transmittal,
Consent and Proxy which may be amended from time to time (this "Letter"), which
together constitute the Company's offer (the "Exchange Offer") to exchange
$1,000 principal amount of its 9 3/8% Senior Subordinated Debentures due 2006
(the "New Debt Securities") plus 3.3732 shares of its 1998 Junior Convertible
Preferred Stock (the "New Junior Preferred Stock") for each $1,000 principal
amount of its 9 3/8% Subordinated Debentures due 2006 (the "Old Debt
Securities"). Capitalized terms not defined herein are as defined in the
Offering Circular.
<PAGE>
The undersigned has completed, executed and delivered this Letter to
indicate the action he or she desires to take with respect to the Exchange
Offer.
The Instructions included in this Letter must be followed in their entirety.
Questions and requests for assistance or for additional copies of the Offering
Circular or this Letter may be directed to the Exchange Agent, at the address
listed above, or Mr. George Leibowitz, Treasurer of the Company, at (203)
325-5470, 2187 Atlantic Street, Stamford, Connecticut 06902.
HOLDERS OF OLD DEBT SECURITIES WHO VALIDLY TENDER THEIR OLD DEBT SECURITIES
WILL BE DEEMED TO HAVE GIVEN THEIR CONSENT WITH RESPECT TO SUCH OLD DEBT
SECURITIES TO THE OLD DEBT AMENDMENTS.
HOLDERS OF OLD DEBT SECURITIES WHO VALIDLY TENDER THEIR OLD DEBT SECURITIES
WILL BE DEEMED TO HAVE IRREVOCABLY MADE, CONSTITUTED AND APPOINTED THE COMPANY,
THE ATTORNEY AND PROXY (THE "STAR GAS PROXY") OF THE HOLDER, WITH FULL POWER OF
SUBSTITUTION, TO ATTEND, AND VOTE ALL OF THE SHARES OF NEW JUNIOR PREFERRED
STOCK TO BE ISSUED TO THE HOLDER PURSUANT TO THE EXCHANGE OFFER AT, ANY
STOCKHOLDER'S MEETING OF THE COMPANY (OR TO EXECUTE A WRITTEN CONSENT) IN FAVOR
OF THE STAR GAS TRANSACTION. THIS POWER OF ATTORNEY AND ALL AUTHORITY HEREBY
CONFERRED IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE PURSUANT TO
MINNESOTA STATUTES SECTION 302A.449, SUBD.2 AND SHALL NOT BE TERMINATED PRIOR TO
5:00 P.M. NEW YORK CITY TIME ON APRIL 1, 1999.
PLEASE READ CAREFULLY THE ENTIRE LETTER OF TRANSMITTAL,
INCLUDING THE INSTRUCTIONS TO THIS LETTER,
BEFORE CHECKING ANY BOX BELOW
This letter must be used whether certificates for Old Debt Securities are to
be forwarded herewith, whether tenders are to be made by book-entry transfer to
the account maintained by the Exchange Agent at DTC, or whether the guaranteed
delivery procedures are to be utilized. Delivery of documents to DTC does not
constitute delivery to the Exchange Agent.
Your bank or broker can assist you in completing this form. The Instructions
included with this Letter must be followed. Questions and requests for
assistance or for additional copies of the Offering Circular and this Letter may
be directed to the Exchange Agent, the Information Agent or the Company.
List below the Old Debt Securities to which this Letter relates. If the
space provided below is inadequate, the certificate numbers and principal
amounts should be listed on a separate signed schedule affixed hereto. The
minimum permitted tender is $1,000 principal amount of Old Debt Securities; all
other tenders must be in integral multiples of $1,000.
2
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
BOX 1
TO BE COMPLETED BY ALL
- --------------------------------------------------------------------------------
Principal
Name(s) and Address(es) Amount
of Registered Holder(s) Tendered(2)
(Please Fill In if Blank) Principal Amount (must be an
Certificate Represented by integral multiple
Number(s)(1) Certificate(s) of $1,000)
- --------------------------------------------------------------------------------
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
Totals:
- --------------------------------------------------------------------------------
(1) Need not be completed if Old Debt Securities are being tendered by
book-entry transfer.
(2) Unless otherwise indicated, the entire principal amount represented by a
certificate delivered to the Exchange Agent will be deemed to have been
tendered.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
3
<PAGE>
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned tenders to the Company the principal amount of Old Debt Securities
indicated above. Subject to, and effective upon, the acceptance for exchange of
the Old Debt Securities tendered with this Letter, the undersigned exchanges,
assigns and transfers to, or upon the order of, the Company all right, title and
interest in and to the Old Debt Securities so tendered.
The undersigned constitutes and appoints the Exchange Agent as his or her
agent and attorney-in-fact (with full knowledge that said Exchange Agent also
acts as the agent of the Company) with respect to the tendered Old Debt
Securities with full power of substitution, to: (a) deliver certificates for
such Old Debt Securities; (b) deliver Old Debt Securities and all accompanying
evidence of transfer and authenticity to or upon the order of the Company upon
receipt by the Exchange Agent, as the undersigned's agent, of the New Debt
Securities and New Junior Preferred Stock to which the undersigned is entitled
upon the acceptance by the Company of the Old Debt Securities tendered under the
Exchange Offer; and (c) receive all benefits and otherwise exercise all rights
of beneficial ownership of the Old Debt Securities, all in accordance with the
terms of the Exchange Offer. The power of attorney granted in this paragraph
shall be deemed irrevocable and coupled with an interest.
The undersigned hereby represents and warrants that he or she has full power
and authority to tender, exchange, assign and transfer the Old Debt Securities
tendered hereby and that the Company will acquire good and unencumbered title
thereto, free and clear of all liens, restrictions, charges and encumbrances and
not subject to any adverse claim when the same are accepted by the Company. The
undersigned will, upon request, execute and deliver any additional documents
deemed by the Exchange Agent or the Company to be necessary or desirable to
complete the assignment and transfer of the Old Debt Securities tendered.
HOLDERS OF OLD DEBT SECURITIES WHO VALIDLY TENDER THEIR OLD DEBT SECURITIES
WILL BE DEEMED TO HAVE GIVEN THEIR CONSENT WITH RESPECT TO SUCH OLD DEBT
SECURITIES TO THE OLD DEBT AMENDMENTS.
HOLDERS OF OLD DEBT SECURITIES WHO VALIDLY TENDER THEIR OLD DEBT SECURITIES
WILL BE DEEMED TO HAVE IRREVOCABLY MADE, CONSTITUTED AND APPOINTED THE COMPANY,
THE ATTORNEY AND PROXY (THE "STAR GAS PROXY") OF THE HOLDER, WITH FULL POWER OF
SUBSTITUTION, TO ATTEND, AND VOTE ALL OF THE SHARES OF NEW JUNIOR PREFERRED
STOCK TO BE ISSUED TO THE HOLDER PURSUANT TO THE EXCHANGE OFFER AT, ANY
STOCKHOLDER'S MEETING OF THE COMPANY (OR TO EXECUTE A WRITTEN CONSENT) IN FAVOR
OF THE STAR GAS TRANSACTION. THIS POWER OF ATTORNEY AND ALL AUTHORITY HEREBY
CONFERRED IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE PURSUANT TO
MINNESOTA STATUTES SECTION 302A.449, SUBD.2 AND SHALL NOT BE TERMINATED PRIOR TO
5:00 P.M. NEW YORK CITY TIME ON APRIL 1, 1999.
The undersigned understands that the Company may accept the undersigned's
tender by delivering oral or written notice of acceptance to the Exchange Agent,
at which time the undersigned's right to withdraw such tender will terminate.
All authority conferred or agreed to be conferred by this Letter shall
survive the death or incapacity of the undersigned, and every obligation of the
undersigned under this Letter shall be binding upon the undersigned's heirs,
personal representatives, successors and assigns. Tenders may be withdrawn only
in accordance with the procedures set forth in the Instructions contained in
this Letter.
4
<PAGE>
Unless otherwise indicated under "Special Delivery Instructions" below, the
Exchange Agent will deliver New Debt Securities and New Junior Preferred Stock
(and, if applicable, substitute Old Debt Securities for any principal amount of
Old Debt Securities not exchanged) to the undersigned at the address set forth
in Box 1. The undersigned understands that Holders who tender Old Debt
Securities by book-entry transfer ("Book-Entry Holders") may request that any
Old Debt Securities not exchanged be returned by crediting the account
maintained by DTC as such Book-Entry Holders may designate by making an
appropriate entry under the box entitled "Special Issuance and Delivery
Instructions" below. The undersigned recognizes that the Company has no
obligation pursuant to the "Special Issue Instructions" to transfer any Old Debt
Securities from the name of the registered holder thereof if the Company does
not accept for exchange any of the principal amount of such Old Debt Securities
so tendered.
This Letter is to be completed by Holders if certificates are to be
forwarded herewith pursuant to the procedures set forth in the Offering
Circular. Holders whose certificates are not immediately available or who cannot
deliver their certificates and all other documents required hereby to the
Exchange Agent on or prior to the Expiration Date must tender their Old Debt
Securities according to the guaranteed delivery procedure set forth under the
caption "The Exchange Offer--Procedure for Tendering--Guaranteed Delivery" in
the Offering Circular (see Instruction 1). The undersigned understands that the
Exchange Offer is subject to the more detailed terms set forth in the Offering
Circular and, in case of any conflict between the terms of the Offering Circular
and this Letter, the Offering Circular shall prevail.
/_/ CHECK HERE IF TENDERED OLD DEBT SECURITIES ARE BEING DELIVERED BY BOOK-
ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT
WITH DTC AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:
-------------------------------------------------
DTC Account Number:
------------------------------------------------------------
Transaction Code Number:
-------------------------------------------------------
/_/ CHECK HERE IF TENDERED OLD DEBT SECURITIES ARE BEING DELIVERED
PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE
EXCHANGE AGENT AND COMPLETE THE FOLLOWING:
Name(s) of Registered Owner(s):
------------------------------------------------
Date of Execution of Notice of Guaranteed Delivery:
-----------------------------
Window Ticket Number (if available):
-------------------------------------------
Name of Eligible Institution which Guaranteed Delivery:
------------------------
DTC Account Number (if delivered by book-entry transfer):
----------------------
THE UNDERSIGNED, BY COMPLETING BOX 1 ABOVE AND SIGNING THIS LETTER, WILL BE
DEEMED TO HAVE TENDERED THE OLD DEBT SECURITIES AS SET FORTH IN SUCH BOX ABOVE
AND TO HAVE GIVEN HIS OR HER CONSENT WITH RESPECT TO SUCH OLD DEBT SECURITIES TO
THE OLD DEBT AMENDMENTS AND TO HAVE GRANTED THE COMPANY THE STAR GAS PROXY WITH
RESPECT TO THE NEW JUNIOR PREFERRED STOCK.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
5
<PAGE>
- --------------------------------------------------------------------------------
BOX 2
PLEASE SIGN HERE
(Whether or not Old Debt Securities are being
physically tendered herewith)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Signatures of Owners or Date
authorized Signatory
Area Code and Telephone Number:
-------------------------------------------------
This box must be signed by registered holder(s) of Old Debt Securities as their
name(s) appear(s) on certificate(s) for Old Debt Securities, or by person(s)
authorized to become registered holder(s) by endorsement and documents
transmitted with this Letter. If signature is by a trustee, executor,
administrator, guardian, officer or other person acting in a fiduciary or
representative capacity, such person must set forth his or her full title below.
(See Instruction 3)
Name(s)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please Print)
Capacity
------------------------------------------------------------------------
Address
-------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Include Zip Code)
SIGNATURE GUARANTY
(If required by Instruction 3)
Signature(s) guaranteed by an Eligible Institution
------------------------------
(Authorized Signature)
(If required by Instruction 3)
--------------------------------------------------
(Title)
(If required by Instruction 3)
--------------------------------------------------
(Name of Firm)
- --------------------------------------------------------------------------------
6
<PAGE>
- --------------------------------------------------------------------------------
BOX 3
TO BE COMPLETED BY ALL TENDERING HOLDERS
PAYER'S NAME: PETROLEUM HEAT AND POWER CO., INC.
- --------------------------------------------------------------------------------
Part I--PLEASE PROVIDE YOUR Social Security Number
TAXPAYER IDENTIFICATION NUMBER
SUBSTITUTE (TIN) IN THE BOX AT RIGHT AND OR
Form W-9 CERTIFY BY SIGNING AND DATING -----------------------
BELOW Employer Identification
Number
-----------------------------------------------------------
Department of the Part 2--Check the box if you are NOT subject to back-up
Treasury Internal withholding under the provisions of Section 2406(a)(1)(C)
Revenue Service of the Internal Revenue Code because (1) you have not been
notified that you are subject to back-up withholding as
a result of failure to report all interest or dividends or
(2) ation the Internal Revenue Service has notified
you that you are no longer subject to back up
withholding. /_/
-----------------------------------------------------------
Payer's Request for CERTIFICATION--UNDER PENALTIES OF Part 3
Taxpayer Identific PERJURY, I CERTIFY THAT THE
Number ("TIN") INFORMATION PROVIDED ON THIS
FORM IS TRUE, CORRECT AND
COMPLETE.
SIGNATURE: Check if Awaiting TIN /_/
----------------------
DATE:
---------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE EXCHANGE OFFER. PLEASE
REVIEW THE "IMPORTANT TAX INFORMATION" SECTION FOR MORE DETAILS.
7
<PAGE>
- --------------------------------------------------------------------------------
BOX 4
SPECIAL ISSUE INSTRUCTIONS
(See Instructions 3 and 4)
To be completed ONLY if substitute certificates for Old Debt Securities in a
principal amount not exchanged and/or certificates for New Debt Securities
and/or New Junior Preferred Stock, are to be registered in the name of and sent
to someone other than the person whose signature appears in Box 2 or if Old Debt
Securities tendered by book-entry transfer which are not exchanged are to be
returned by credit to an account maintained by DTC.
Issue and deliver:
(check appropriate boxes)
/_/ Old Debt Securities not tendered to:
/_/ New Debt Securities and New Junior Preferred Stock to:
Name
----------------------------------------------------------------------------
Please Print
Address
-------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(DTC Account Number)
Please complete the Substitute form W-9 at Box 3
Tax I.D. or Social Security Number:
---------------------------------------------
- --------------------------------------------------------------------------------
8
<PAGE>
- --------------------------------------------------------------------------------
BOX 5
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 3 and 4)
To be completed ONLY if certificates for Old Debt Securities in a principal
amount not exchanged and/or New Debt Securities and/or New Junior Preferred
Stock are to be sent to someone or issued in the name of someone, other than the
person whose signature appears in Box 2 or to an address other than that shown
in Box 1.
Deliver:
(check appropriate boxes)
/_/ Old Debt Securities not exchanged to:
/_/ New Debt Securities and New Junior Preferred Stock to:
Name
----------------------------------------------------------------------------
Please Print
Address
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- --------------------------------------------------------------------------------
Zip Code
- --------------------------------------------------------------------------------
Tax I.D. or Social Security Number
- --------------------------------------------------------------------------------
9
<PAGE>
- --------------------------------------------------------------------------------
BOX 6
PLEASE SIGN HERE
GRANT OF PROXY
(See Instruction 7)
If shares of New Junior Preferred Stock are to be issued in the name of someone
(the "Recipient"), other than the person whose signature appears in Box 2, this
Box must be signed by the Recipient in order to grant the Star Gas Proxy to the
Company.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Signatures of Owners or Date
authorized Signatory
Area Code and Telephone Number:
-------------------------------------------------
This box must be signed by persons authorized to become registered holder(s) of
New Junior Preferred Stock by endorsement and documents transmitted with this
Letter. If signature is by a trustee, executor, administrator, guardian, officer
or other person acting in a fiduciary or representative capacity, such person
must set forth his or her full title below. (See Instruction 3)
Name(s)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please Print)
Capacity
------------------------------------------------------------------------
Address
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- --------------------------------------------------------------------------------
(Include Zip Code)
SIGNATURE GUARANTY
(If required by Instruction 3)
Signature(s) guaranteed by an Eligible Institution
------------------------------
(Authorized Signature)
(If required by Instruction 3)
--------------------------------------------------
(Title)
(If required by Instruction 3)
--------------------------------------------------
(Name of Firm)
- --------------------------------------------------------------------------------
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<PAGE>
INSTRUCTIONS
Forming Part of the Terms and Conditions of the Exchange Offer
1. Delivery of This Letter and Certificates; Guaranteed Delivery Procedures.
This Letter is to be used whether certificates are to be forwarded herewith,
whether tenders are to be made pursuant to the procedures for book-entry
transfer set forth in the Offering Circular under the caption "The Exchange
Offers--Procedure for Tendering--Book-Entry Transfer" (unless an Agent's Message
(as defined below) is utilized), or whether tenders are to be made pursuant to
the procedures for guaranteed delivery set forth below and in the Offering
Circular under the caption "The Exchange Offers--Procedure For
Tendering--Guaranteed Delivery." Certificates for Old Debt Securities or any
book-entry transfer into the Exchange Agent's account at DTC of Old Debt
Securities tendered electronically, as well as a properly completed and duly
executed copy of this Letter or a facsimile hereof or an Agent's Message, and
any other documents required by this Letter, must be received by the Exchange
Agent at its address set forth herein or (in the case of tenders by book-entry
transfer) confirmed to the Exchange Agent on or before 5:00 p.m. New York City
time on the Expiration Date. The method of delivery of this Letter, the Old Debt
Securities and any other required documents is at the election and risk of the
tendering holder, but except as otherwise provided below, the delivery will be
deemed made only when actually received or confirmed by the Exchange Agent. If
delivery is by mail, the use of registered mail with return receipt requested,
properly insured, is suggested.
Holders whose certificates representing their Old Debt Securities are not
immediately available or who cannot deliver their certificates or any other
required documents to the Exchange Agent on or before the Expiration Date may
tender their Old Debt Securities pursuant to the guaranteed delivery procedures
set forth in the Offering Circular. Pursuant to such procedure: (i) tender must
be made by or through an Eligible Institution (as defined in the Offering
Circular); (ii) prior to the Expiration Date, the Exchange Agent must have
received from the Eligible Institution a properly completed and duly executed
Notice of Guaranteed Delivery (by facsimile transmission, mail or hand delivery)
(x) setting forth the name and address of the holder and the principal amount of
Old Debt Securities tendered, (y) stating that the tender is being made thereby
and (z) guaranteeing that, within five New York Stock Exchange trading days
after the Expiration Date, the Old Debt Securities and all other documents
required by this Letter will be deposited by the Eligible Institution with the
Exchange Agent; and (iii) the certificates for all tendered Old Debt Securities,
or a confirmation of a book-entry transfer of such Old Debt Securities, into the
Exchange Agent's account at DTC as described above, a properly completed and
duly executed Letter (or facsimile thereof) (or, in the case of a book-entry
transfer, an Agent's Message) and all other documents required by this Letter,
must be received by the Exchange Agent within five New York Stock Exchange
trading days after the Expiration Date, all as provided in the Offering Circular
under the caption "The Exchange Offers--Procedure for Tendering--Guaranteed
Delivery."
The term "Agent's Message" means a message, transmitted by the DTC to, and
received by, the Exchange Agent and forming a part of a confirmation of a
book-entry transfer, which states that the DTC has received an express
acknowledgement from the participant in the DTC tendering the Old Debt
Securities, that such participant has received and agrees to be bound by the
terms of the Letter and that the Company may enforce such agreement against the
participant.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance and withdrawal of tendered Old Debt Securities will be
determined by the Company, whose determination will be final and binding. The
Company reserves the absolute right to reject any or all tenders that are not in
proper form or
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<PAGE>
the acceptance of which, in the opinion of the Company's counsel, would be
unlawful. The Company also reserves the right to waive any irregularities or
conditions of tender as to particular Old Debt Securities. All tendering
holders, by execution of this Letter, waive any right to receive notice of
acceptance of their Old Debt Securities.
Neither the Company, the Exchange Agent nor any other person shall be
obligated to give notice of defects or irregularities in any tender, nor shall
any of them incur any liability for failure to give any such notice.
See "The Exchange Offers" in the Offering Circular.
2. Partial Tenders; Withdrawals. Tenders of Old Debt Securities will be
accepted only in integral multiples of $1,000. If less than the entire principal
amount of any Old Debt Securities evidenced by a submitted certificate is to be
tendered, the tendering holder must fill in the principal amount to be tendered
in the fourth column of Box 1 above. All of the Old Debt Securities represented
by a certificate delivered to the Exchange Agent will be deemed to have been
tendered unless otherwise indicated. A reissued certificate representing such
Old Debt Securities not tendered will be sent to the holder, unless otherwise
provided in Box 5, as soon as practicable after the Expiration Date. The entire
principal amount of all Old Debt Securities delivered to the Exchange Agent will
be deemed to have been tendered unless otherwise indicated.
Tenders of Old Debt Securities may be withdrawn and Old Debt Consents may be
revoked at any time until the Minimum Debt Exchange has been received and
accepted by the Company. To be effective, a notice of withdrawal must: (i) be
received by the Exchange Agent before the Minimum Debt Exchange has been
received; (ii) specify the name of the person who tendered the Old Debt
Securities, the name in which the Old Debt Securities are registered, if
different from the tendering Holder, the certificate number or numbers of the
Old Debt Securities to which it relates (or, if the tender was by book-entry
transfer, information sufficient to enable the Exchange Agent to identify the
Old Debt Securities so tendered) and the aggregate principal amount represented
by such Old Debt Securities; and (iii) be signed by the holder in the same
manner as the original signature on this Letter (including any required (a)
signature guarantee or (b) accompanied by evidence satisfactory to this Company
that the holder withdrawing such tender has succeeded to beneficial ownership of
such Old Debt Securities. If the Old Debt Securities to be withdrawn have been
tendered pursuant to the procedures for book-entry delivery as set forth in the
Offering Circular under "The Exchange Offers--Procedure for
Tendering--Book-Entry Transfer," any notice of withdrawal must specify the name
and number of the account at DTC to be credited with the withdrawn Old Debt
Securities.)
3. Signatures on this Letter; Bond Powers and Endorsements; Guarantee of
Signatures. If this Letter is signed by the registered holder(s) of Old Debt
Securities tendered hereby, the signature must correspond with the name(s) as
written on the face of the certificate(s) for such Old Debt Securities without
alteration, enlargement or any change whatsoever.
If any shares of Old Debt Securities tendered hereby are owned of record by
two or more joint owners, all owners must sign this Letter. If any tendered Old
Debt Securities are held in different names on several certificates, it will be
necessary to complete, sign and submit as many separate copies of this Letter as
there are names in which certificates are held.
When this Letter is signed by the registered holder or holders of the Old
Debt Securities specified herein and tendered hereby, no endorsements of
certificates or separate bond powers are required. If, however, New Debt
Securities and New Junior Preferred Stock are to be issued, or certificates for
any
12
<PAGE>
untendered principal amount of Old Debt Securities are to be reissued, to a
person other than the registered holder, then endorsements of any certificates
transmitted hereby or separate bond powers are required.
If this Letter is signed by a person other than the registered holder or
holders of any certificate(s) specified herein, such certificate(s) must be
endorsed or accompanied by appropriate bond powers, in either case signed
exactly as the name or names of the registered holder or holders appear(s) on
the certificate(s).
If this Letter or a Notice of Guaranteed Delivery or any certificates or
bond powers are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary or
representative capacity, such persons should so indicate when signing, and,
unless waived by the Company, proper evidence satisfactory to the Company of
their authority to so act must be submitted.
Endorsements on certificates for Old Debt Securities or signatures on bond
powers required by this Instruction 3 must be guaranteed by an Eligible
Institution.
Signatures on this Letter need not be guaranteed by an Eligible Institution,
provided the Old Debt Securities are tendered: (i) by a registered holder of
such Old Debt Securities (which term, for purposes of this Letter, shall include
any participant in DTC whose name appears on a security position listing as the
owner of Old Debt Securities) who has not completed Box 4 or 5 on this Letter;
or (ii) for the account or an Eligible Institution.
4. Special Issuance and Delivery Instructions. Tendering holders should
indicate, in Box 4 or 5, as applicable, the name and address to which the New
Debt Securities and the New Junior Preferred Stock or certificates for Old Debt
Securities not exchanged are to be sent or issued, if different from the name
and address of the person signing this Letter. In the case of issuance in a
different name, the tax identification number of the person named must also be
indicated.
5. Return of Unexchanged Old Debt Securities. If any tendered Old Debt
Securities are not exchanged pursuant to the Exchange Offer for any reason, such
unexchanged Old Debt Securities shall be returned, without expense, to the
undersigned at the address shown in Box 1 or at a different address as may be
indicated in Box 5.
6. Consents. Holders of Old Debt Securities who validly tender their Old
Debt Securities will be deemed to have given their Consent with respect to such
Old Debt Securities to the Old Debt Amendments.
7. Irrevocable Proxy. HOLDERS OF OLD DEBT SECURITIES WHO VALIDLY TENDER
THEIR OLD DEBT SECURITIES WILL BE DEEMED TO HAVE IRREVOCABLY MADE, CONSTITUTED
AND APPOINTED THE COMPANY, THE ATTORNEY AND PROXY (THE "STAR GAS PROXY") OF THE
HOLDER, WITH FULL POWER OF SUBSTITUTION, TO ATTEND, AND VOTE ALL OF THE SHARES
OF NEW JUNIOR PREFERRED STOCK TO BE ISSUED TO THE HOLDER PURSUANT TO THE
EXCHANGE OFFER AT, ANY STOCKHOLDER'S MEETING OF THE COMPANY (OR TO EXECUTE A
WRITTEN CONSENT) IN FAVOR OF THE STAR GAS TRANSACTION. THIS POWER OF ATTORNEY
AND ALL AUTHORITY HEREBY CONFERRED IS COUPLED WITH AN INTEREST AND SHALL BE
IRREVOCABLE PURSUANT TO MINNESOTA STATUTES SECTION 302A.449, SUBD.2 AND SHALL
NOT BE TERMINATED PRIOR TO 5:00 P.M. NEW YORK CITY TIME ON APRIL 1, 1999. IF
SHARES OF NEW JUNIOR PREFERRED STOCK ARE TO BE ISSUED IN THE NAME OF SOMEONE
(THE "RECIPIENT"), OTHER THAN THE
13
<PAGE>
PERSON WHOSE SIGNATURE APPEARS IN BOX 2, BOX 6 MUST BE SIGNED BY THE RECIPIENT
TO GRANT THE STAR GAS PROXY TO THE COMPANY.
8. Tax Identification Number. Federal income tax law requires that a holder
whose tendered Old Debt Securities are accepted for exchange must provide the
exchange agent (as payor) with his or her correct taxpayer identification number
("TIN"), which, in the case of a holder who is an individual, is his or her
social security number. If the Exchange Agent is not provided with the correct
TIN, the holder may be subject to a $50 penalty imposed by the Internal Revenue
Service ("IRS"). In addition, delivery to the holder of the New Junior Preferred
Stock pursuant to the Exchange Offer may be subject to back-up withholding. (If
withholding results in overpayment of taxes, a refund may be obtained). Exempt
holders (including, among others, all corporations and certain foreign
individuals) are not subject to these back-up withholding and reporting
requirements. See "Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9" on page 17 for additional instructions.
Under federal income tax laws, payments that may be made by the Company on
account of New Debt Securities and New Junior Preferred Stock issued pursuant to
the Exchange Offer may be subject to back-up withholding at a rate of 31%. In
order to prevent back-up withholding, each tendering holder must provide his or
her correct TIN by completing the "Substitute Form W-9" referred to above,
certifying that the TIN provided is correct (or that the holder is awaiting a
TIN) and that: (i) the holder has not been notified by the IRS that he or she is
subject to back-up withholding as a result of failure to report all interest or
dividends; or (ii) the IRS has notified the holder that he or she is no longer
subject to back-up withholding; or (iii) certify in accordance with the
Guidelines that such holder is exempt from back-up withholding. If the Old Debt
Securities are in more than one name or are not in the name of the actual owner,
consult "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" on page 17 for information on which TIN to report.
9. Transfer Taxes. The Company will pay all transfer taxes, if any,
applicable to the transfer of Old Debt Securities to it or its order pursuant to
the Exchange Offer. If, however, the New Debt Securities and New Junior
Preferred Stock are to be delivered to, or are to be issued in the name of, any
person other than the registered holder, or if a tendered certificate
representing Old Debt Securities registered in the name of any person other than
the person signing this Letter, or if a transfer tax is imposed by any reason
other than the transfer of Old Debt Securities to the Company or its order
pursuant to the Exchange Offer, then the amount of such transfer taxes (whether
imposed on the registered holder or any other person) will be payable by the
tendering holder. If satisfactory evidence of payment of such taxes or exemption
therefrom is not submitted with this Letter, the amount of such transfer taxes
will be billed directly to the tendering holder.
Except as provided in this Instruction 9 it will not be necessary for
transfer tax stamps to be affixed to the certificates listed in this Letter.
10. No Conditional Tender. No alternative, conditional, irregular or
contingent tenders will be accepted. All tendering Holders by execution of this
Letter (or a facsimile hereof), shall waive any right to receive notice of the
acceptance of their Old Debt Securities for exchange.
The Company, Exchange Agent or any other person is not obligated to give
notice of defects or irregularities in any tender, nor shall any of them incur
any liability for failure to give any such notice.
14
<PAGE>
11. Waiver of Conditions. The Company reserves the absolute right to amend
or waive satisfaction of any condition enumerated in the Offering Circular,
other than the qualification of the New Debt Securities under the Trust
Indenture Act, which is nonwaivable by the Company.
12. Mutilated Lost Stolen or Destroyed Certificates. Any holder whose
certificates for Old Debt Securities have been mutilated, lost, stolen or
destroyed should contact the Exchange Agent at the address indicated above, for
further instructions.
13. Requests for Assistance or Additional Copies. Questions relating to the
procedure for tendering, as well as requests for additional copies of the
Offering Circular or this Letter, may be directed to the Exchange Agent.
IMPORTANT TAX INFORMATION
Under federal income tax law, a holder of Old Debt Securities (a "Holder")
whose Old Debt Securities is surrendered for exchange is required to provide the
Exchange Agent with such Holder's correct TIN on Substitute Form W-9 (see page
7). If such Holder is an individual, the TIN is his social security number. If
the Exchange Agent is not provided with the correct TIN, the Holder may be
subject to a $50 penalty imposed by the IRS.
Certain Holders (including, among others, all corporations and certain
foreign individuals) are not subject to these back-up withholding and reporting
requirements. In order for a foreign individual to qualify as an exempt
recipient, that Holder must submit a statement, signed under penalties of
perjury, attesting to that individual's exempt status. Such statements may be
obtained from the Exchange Agent.
Back-up withholding is not an additional tax. Rather, the tax liability of
persons subject to back-up withholding will be reduced by the amount of tax
withheld. If withholding results in an overpayment of taxes, a refund may be
obtained.
Purpose of Substitute Form W-9
To prevent back-up withholding on payments that are made to a Holder with
respect to any Old Debt Securities, the Holder is required to notify the
Exchange Agent of his correct TIN by completing Box 3 on page 7 certifying that
the TIN provided on the Substitute Form W-9 is correct (or that such Holder is
awaiting a TIN).
What Number to Give the Exchange Agent
The Holder is required to give the Exchange Agent the social security number
or employer identification number of the record owner of the Old Debt
Securities. If the Old Debt Securities are in more than one name or are not in
the name of the actual owner, consult "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" on page 17 for additional
guidelines on which number to report.
Purpose of Form W-9
A person who is required to file an information return with the IRS must
obtain your correct TIN to report income paid to you, real estate transactions,
mortgage interest you paid, the acquisition or abandonment
15
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of secured property, or contributions you made to an IRA. Use Form W-9 to
furnish your correct TIN to the requester (the person asking you to furnish your
TIN) and, when applicable, (1) to certify that the TIN you are furnishing is
correct (or that you are waiting for a number to be issued), (2) to certify that
you are not subject to back-up withholding, and (3) to claim exemption from
back-up withholding if you are an exempt payee. Furnishing your correct TIN and
making the appropriate certifications will prevent certain payments from being
subject to back-up withholding.
NOTE: If a requester gives you a form other than a W-9 to request your TIN,
you must use the requester's form.
How to Obtain a TIN
If you do not have a TIN, apply for one immediately. To apply, get FORM
SS-5, application for a Social Security Number Card (for individuals) from your
local office of the Social Security Administration, or FORM SS, Application for
Employer Identification Number (for business and all other entities) from your
IRS office.
To complete Form W-9 if you do not have a TIN, check the space for "Awaiting
TIN" on Part 3 of Box 3, sign and date the form, and give it to the requester.
Generally, you will then have 60 days to obtain a TIN and furnish it to the
requester. If the requester does not receive your TIN within 60 days, back-up
withholding, if applicable, will begin and continue until you furnish your TIN
to the requester. For reportable interest or dividend payments, the payer must
exercise one of the following options concerning back-up withholding during this
60-day period. Under option (1), a payer must backup withhold on any reportable
interest or dividend payments made to your account, regardless of whether you
make any withdrawals. The back-up withholding under option (2) must begin no
later than seven business days after the requester receives this form back.
Under option (2), the payer is required to refund the amounts withheld if your
certified TIN is received within the 60-day period and you were not subject to
back-up withholding during that period.
NOTE: Checking "Awaiting TIN" on the form means that you have already
applied for a TIN, OR that you intend to apply for one in the near future.
As soon as you receive your TIN, complete another Form W-9, include your
TIN, sign and date the form, and give it to the requester.
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GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Guidelines for Determining the Proper Identification Number to Give the
Payer -- Social Security Numbers have nine digits separated by two hyphens;
i.e., 000-00-0000. Employer Identification Numbers have nine digits separated by
only one hyphen: i.e., 00-0000000. The table below will help determine the
number to give the payer:
<TABLE>
<CAPTION>
For this Type Give the Social Security For this Type Employee Identification
of Account: Number of: of Account: Number of
<S> <C> <C> <C>
1. An individual's account The individual 9. A valid trust estate, or Legal entity (Do not furnish
pension fund the identifying number of the
personal representative or
trustee unless the legal entity
itself is not designated in the
account title)
2. Two or more individuals The actual owner of 10. Corporate account The corporation
the (joint account)
(account or, if
combined funds,
any one of the
individuals
3. Husband and wife (joint The actual owner of 11. Religious, charitable The organization
account) the joint or account educational organization
or, if joint funds,
either person (1)
4. Custodian account of a The minor (1) 12. Partnership account held The partnership
minor (Uniform Gift to in the name of the business
Minors Act)
5. Adult and minor (joint The adult or, if the 13. Association The organization
account) minor is the only
contributor, the
minor (1)
6. Account in the name of The ward, minor or 14. A broker or registered The broker or nominee
guardian or committee for a incompetent person nominee
designated ward, minor or
incompetent person
7.a. The usual revocable The grantor-trustee 15. Account with the The public entity
savings trust account Department of Agriculture
(grantor is also in the name of a public
trustee) entity (such as a State or
local government, school
district, or prison) that
receives agricultural
program payment
b. So-called trust account The actual owner (1)
that is not a legal or
value trust under State
law
8. Sole proprietorship The owner (4)
account
</TABLE>
- ----------
(1) List first and circle the name of the person whose number you furnish.
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<PAGE>
(2) Circle the minor(s) name and furnish the minor(s) social security number.
(3) Circle the ward(s), minor(s) or incompetent person(s) name and furnish such
person a social security number.
(4) Show the name of the owner.
(5) List first and circle the name of the legal trust, estate or pension trust.
NOTE: If no name is circled when there is more than one name, the number
will be considered to be that of the first name listed.
Obtaining a Number
If you don't have a TIN or you don't know your number, obtain Form SS-5,
Application for a Social Security Number Card, or Form SS, Application for
Employer Identification Number, at the local office of the Social Security
Administration or the IRS and apply for a number. (Section references are to the
Internal Revenue Code).
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<PAGE>
Payees Exempt from Back-up Withholding
Payees specifically exempted from backup withholding on ALL payments include
the following:
- A corporation.
- A financial institution.
- An organization exempt from tax under section 501(a) or an individual
retirement plan.
- The United States or any agency or instrumentality thereof
- A State, the District of Columbia, a possession of the United States,
or any subdivision or instrumentality thereof
- A foreign government, political subdivision of a foreign government,
or agency or instrumentality thereof.
- An international organization or any agency or instrumentality
thereof. A registered dealer in securities or commodities registered
in the U.S. or a possession of the U.S.
- A real estate investment trust.
- A common trust fund operated by a bank under section 584(a)
- An exempt charitable remainder trust or a non-exempt trust described
in section 4947(a)(1).
- An entity registered at all times under the Investment Company Act of
1940. A foreign central bank of issue.
Exempt payees described above should file Form W-9 to avoid possible
erroneous backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR TIN,
WRITE "EXEMPT" ON THE FACE OF THE FORM, AND RETURN IT TO THE PAYER. IF THE
PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE DIVIDENDS, ALSO SIGN AND DATE THE
FORM.
Certain payments other than interest dividends, and patronage dividends,
that are not subject to information reporting are also not subject to back-up
withholding. For details, see the regulations under sections 6041, 6041A(a),
6045, and 6050A.
Privacy Act Notice. Section 6109 requires you to furnish your correct TIN to
persons who must file information returns with the IRS to report interest,
dividends, and certain other income paid to you, mortgage interest you paid, the
acquisition or abandonment of secured property, or contributions you made to an
IRA. The IRS uses the numbers for identification purposes and to help verify the
accuracy of your tax return. Payers must generally withhold 31% of taxable
interest, dividend, and certain other payments to a payee who does not furnish a
TIN to a payer. Certain penalties may also apply.
19
<PAGE>
PENALTIES
(1) Penalty For Failure To Furnish Taxpayer Identification Number--If you
fail to furnish your taxpayer identification number to a payer, you are subject
to a penalty of $50 for each such failure unless your failure is due to
reasonable causes and not to willful neglect.
(2) Civil Penalty For False Information With Respect To Withholding--If you
make a false statement with no reasonable basis which results in no imposition
of backup withholding, you are subject to a penalty of $500.
(3) Criminal Penalty For Falsifying Information With Respect To
Withholding--Willfully falsifying certifications or affirmations may subject you
to criminal penalties including fines and/or imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE IRS.
20
<PAGE>
PETROLEUM HEAT AND POWER CO., INC.
IMPORTANT
This Letter or a manually signed facsimile hereof (together with certificate
for Old Debt Securities or confirmation of book-entry transfer of Old Debt
Securities and all other required documents) or a Notice of Guaranteed Delivery
must be received by the Exchange Agent prior to the Expiration Date.
The Exchange Agent
THE CHASE MANHATTAN BANK
By Mail: By Facsimile: By Overnight Courier or Hand:
The Chase Manhattan Bank (214) 946-5932 The Chase Manhattan Bank
c/o Chase Bank of Texas, N.A. c/o Chase Bank of Texas, N.A.
1201 Main Street, 18th Floor 1201 Main Street, 18th Floor
Dallas, Texas 75202 Dallas, Texas 75202
Attn: Frank Ivins Attn: Frank Ivins
Personal and Confidential Personal and Confidential
Telephone Number:
(214) 946-5678
The Information Agent
MORROW & CO., INC.
445 Park Avenue
New York, New York 10022
(800) 662-5200 (Toll-Free)
21
<PAGE>
PETROLEUM HEAT AND POWER CO., INC.
Form of Notice of Guaranteed Delivery
This form or one substantially equivalent hereto must be used to accept
the Exchange Offers of the Petroleum Heat and Power Co., Inc. (the "Company")
made pursuant to the Offering Circular, dated August 26, 1998 (the "Offering
Circular") if: (i) certificates for Old Debt Securities of the Company are not
immediately available or (ii) time will not permit all required documents to
reach the Exchange Agent (as defined below) at or prior to 5:00 p.m. New York
City time on the Expiration Date or (iii) the procedures for book-entry transfer
cannot be completed on or prior to 5:00 p.m. New York City time on the
Expiration Date. Such form may be delivered by hand or transmitted by telegram,
telex, facsimile transmission or letter to the Exchange Agent and must be
received by the Exchange Agent at or prior to 5:00 p.m. New York City time on
the Expiration Date. In addition, in order to utilize the guaranteed delivery
procedure to tender Old Debt Securities pursuant to the Exchange Offers, a
completed, signed and dated Letter of Transmittal, Consent and Proxy (or
facsimile thereof) must also be received by the Exchange Agent at or prior to
5:00 p.m. New York City time on the Expiration Date. Capitalized terms not
defined herein are as defined in the Offering Circular.
To: THE CHASE MANHATTAN BANK
(the "Exchange Agent")
By Hand/Overnight Courier:
The Chase Manhattan Bank
c/o Chase Bank of Texas, N.A.
1201 Main Street, 18th floor
Dallas, Texas 75202
Attn: Frank Ivins
Personal and Confidential
Facsimile Transmission: (214) 946-5932
Confirm by Telephone: (214) 946-5678
For Information: (214) 946-5678
Delivery of this instrument to an address other than
as set forth above or transmittal of this instrument to
a facsimile number other than as set forth
above does not constitute a valid delivery.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to the Company, upon the terms and
conditions set forth in the Offering Circular and the Letter of Transmittal,
Consent and Proxy (which together constitute the "Exchange Offers"), receipt of
which are hereby acknowledged, the principal amount of Old Debt Securities set
forth below pursuant to the guaranteed delivery procedures described in the
Offering Circular and the Letter of Transmittal, Consent and Proxy.
The undersigned understands and acknowledges that the Exchange Offers
will expire at 5:00 p.m., New York City time, on September 24, 1998, unless
extended by the Company. With respect to the Exchange Offers, "Expiration Date"
means such time and date, or if the Exchange Offers are extended, the latest
time and date to which the Exchange Offers are so extended by the Company.
All authority herein conferred or agreed to be conferred by this Notice
of Guaranteed Delivery shall survive the death or incapacity of the undersigned
and every obligation of the undersigned under this Notice of Guaranteed Delivery
shall be binding upon the heirs, personal representatives, executors,
administrators, successors, assigns, trustees in bankruptcy and other legal
representatives of the undersigned.
<TABLE>
<CAPTION>
<S> <C>
SIGNATURES Issue of Old Debt
Securities Being
Exchanged (check only
one box - a separate
Notice of Guaranteed
Delivery must be used
in respect of each
issue of Old Debt
Securities owned):
Signature of Owner
- 10 1/8% Subordinated Notes due 2003
- 9 3/8% Subordinated Debentures due 2006
Signature of Owner (if more than one) - 12 1/4% Subordinated Debentures due 2005
Dated: , 199 Principal amount of Old Debt Securities
----------------------- --
Exchanged:
Names: ------------------------------------
---------------------------- Certificate Nos. of Old Debt Securities (if
applicable)
----------------------------
(Please Print)
----------------------------------------------
Address: Total Principal Amount Represented by Old Debt
--------------------------- Securities Certificate(s):
--------------------------- ----------------------------------------------
---------------------------
(Include Zip Code)
If Old Debt Securities will be delivered by book-
Area Code and entry transfer, provide the Depository Trust
Telephone No.: Company ("DTC") Account No.:
---------------------
Capacity (full title), if signing in Account No.:
a representative capacity: ----------------------------
- ------------------------------------
Taxpayer Identification or Social
Security No.:
- ------------------------------------
- ----------------------------------------------------------
</TABLE>
2
<PAGE>
GUARANTEE OF DELIVERY
(Not to be used for signature guarantee)
The undersigned, a member of a recognized signature guarantee medallion program
within the meaning of Rule 17Ad-15 under the Securities Exchange Act of 1934, as
amended, hereby guarantees (a) that the above-named person(s) own(s) the
above-described securities tendered hereby within the meaning of Rule 10b-4
under the Securities Exchange Act of 1934, (b) that such tender of the
above-described securities complies with Rule 10b-4, and (c) that delivery to
the Exchange Agent of certificates tendered hereby, in proper form for transfer,
or delivery of such certificates pursuant to the procedure for book-entry
transfer, in either case with delivery of a properly completed and duly executed
Letter of Transmittal, Consent and Proxy (or facsimile thereof) and any other
required documents, is being made within five New York Stock Exchange trading
days after the Expiration Date.
Name of Firm:
- -------------------------------- --------------------------------------
(Authorized Signature)
Title:
- --------------------------------
Number and Street or P.O. Box
- --------------------------------- --------------------------------------
City State Zip Code Date:
Tel. No.
------------------------ --------------------------------------
Fax No.
-----------------------
NOTE: DO NOT SEND CERTIFICATES REPRESENTING OLD DEBT SECURITIES WITH THIS
NOTICE. OLD DEBT SECURITIES SHOULD BE SENT TO THE EXCHANGE AGENT
TOGETHER WITH A PROPERLY COMPLETED AND DULY EXECUTED LETTER OF
TRANSMITTAL, CONSENT AND PROXY.
3
<PAGE>
August 26, 1998
Holders of Petroleum Heat and Power Co., Inc.
10 1/8% Subordinated Notes due 2003
9 3/4% Subordinated Debentures due 2006
12 1/4% Subordinated Debentures due 2005
Ladies and Gentlemen:
On August 14, 1998, Petroleum Heat and Power Co., Inc. ("Petro" or the
"Company") announced a restructuring plan for its publicly traded debt. As you
know, Petro has reported disappointing financial results in 1997 and 1998 for
several reasons. The primary factor has been the past two years of back-to-back
warm winters with this past year being the warmest of the century. In addition,
as you are aware, the Company has experienced customer attrition which has
eroded its account base and negatively impacted its earnings. In an effort to
deal with these problems, Petro has undertaken a corporate restructuring program
to regionalize its operations and reduce expenses. While this program has been
successful in reducing attrition and improving operating performance, it has not
been sufficient to offset the effect of the last two winters' weather.
Although Petro's recently reported financial results reflect these
improvements, the Company is still very highly leveraged with a 7.3x net
Debt/EBITDA ratio and a 1.2x EBITDA/Interest ratio for the twelve months
ended June 30, 1998. At June 30, 1998, the Company had outstanding an
aggregate of $287 million in long term debt (including current portion), $38
million of redeemable preferred stock and a stockholders' deficiency of $175
million While this leverage is of concern, of even greater significance is
that the Company's ability to improve this condition is severely limited by
the unavailability of capital. Petro's negative annual cash flow after
maintenance capital expenditures and the payment of its fixed obligations has
caused it to halt investing in its regionalization and acquisitions programs.
In addition, Petro faces significant debt amortization payments beginning in
2000.
In order to address this situation, Petro has reached an agreement in principle
to combine with Star Gas Partners L.P. ("Star Gas"), its 40% owned master
limited partnership ("MLP") in
<PAGE>
which it is the general partner. As part of that transaction (the
"Transaction"), Petro will become a wholly owned subsidiary of Star Gas and will
be recapitalized as follows. As proposed, Star Gas will issue 6.5 million new
MLP units and $120 million of new debt using the net proceeds primarily to repay
Petro's public debt and preferred stock. This will enable the Company to redeem
its 10 1/8% Subordinated Notes due 2003, 9 3/8% Subordinated Debentures due 2006
and 12 1/4% Subordinated Debentures due 2005 (collectively, the "Old Debt
Securities") at 100%, 100% and 103.5% of principal amount, respectively, plus
accrued interest. Petro is seeking from its public debtholders a limited
redemption right to purchase these debt obligations at these prices, through
April 1, 1999, subject to the closing of the Transaction. Given Petro's
financial condition, the value at which these securities were trading prior to
the announcement that the Company was seeking to recapitalize, and the Company's
prospects without this restructuring, I believe this redemption should be
attractive to all our public debtholders.
This limited redemption right will be implemented through exchange offers (the
"Exchange Offers") in which holders will receive a new debt instrument (the "New
Debt Securities" identical to the old except for (i) the right to redeem their
obligations at the prices indicated above through April 1, 1999 subject to
completion of the Transaction, and (ii) the New Debt Securities will be senior
in right of payment to the Old Debt Securities. Petro has authorized the
issuance of approximately 797,000 shares of Junior Convertible Preferred Stock
representing 3% of the Company's outstanding equity, to be issued to the public
debt and preferred holders that agree to this early redemption right. Under this
plan, Petro will pay to each exchanging debtholder a fee of 3.3732 shares of
Petro Junior Convertible Preferred Stock per $1,000 of principal amount
exchanged. The Junior Convertible Preferred Stock will be exchanged for Star Gas
common units at the closing of the Transaction at the rate of .13064 of a common
unit per share of Junior Preferred Stock or is convertible into shares of Class
A Common Stock of Petro shares at anytime at the option of the holder on a
share-for-share basis. This fee will be payable to holders who participate in
the Exchange Offers, regardless of whether the Transaction is consummated.
Petro's management has met with 13 of its largest institutional investors which
own in the aggregate over 60% of its public debt and preferred stock to review
the Transaction and negotiate the terms of the limited redemption right. All 13
of these investors support the Transaction and have agreed to exchange their
securities (including the holders of 100% of Petro's 12 7/8% public preferred
stock who have agreed to be redeemed at 92% of face value plus accrued dividends
in connection with the Transaction). However, the Transaction is conditioned
upon the holders of 90% in aggregate principal amount of the Old Debt Securities
participating in the Exchange Offers. Therefore, Petro is asking all of the
holders of Old Debt Securities to exchange in order to proceed with the
Transaction.
I believe the Transaction is in the best interest of all public debtholders.
Under its current capital structure Petro does not have the funds to improve its
highly leveraged credit condition. In the event that less than 90% of the public
securities are exchanged, Petro will be unable to proceed with the Transaction
with the likelihood that the public securities will trade lower. In
2
<PAGE>
the long run, if the Transaction is not completed Petro faces significant
amortization payments that may be difficult to refinance. Petro currently
intends to take advantage of the capital market for MLP's in order to raise
capital to repay its public debt at a premium to their recent trading values. In
addition, Petro will issue to exchanging debtholders Junior Convertible
Preferred Stock that will be exchanged into Star Gas common units at the closing
of the Transaction.
It is important to note that the consummation of the Exchange Offers will have
certain adverse consequences to holders of Old Debt Securities who do not
participate in the Exchange Offers, including the following: (i) the New Debt
Securities will be senior in right of payment to the Old Debt Securities, (ii)
the indentures under which the Old Debt Securities have been issued will be
amended to eliminate substantially all of the covenant protection provided by
such indentures, and (iii) the trading market for the remaining Old Debt
Securities will become more limited, which may adversely affect the liquidity
and market price for the remaining Old Debt Securities.
In connection with the Exchange Offers, I am enclosing:
(1) Offering Circular;
(2) Letter of Transmittal, Consent and Proxy;
(3) The Company's Annual Report on Form 10-K for the year
ended December 31, 1997; and
(4) The Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1998.
Please respond by instructing your nominee to execute the Letter of Transmittal,
Consent and Proxy delivered to the record holder and return it by air courier,
messenger or fax to: The Chase Manhattan Bank, c/o Chase Bank of Texas, N.A.,
1201 Main Street, 18th Floor, Dallas, Texas 75202, Attn: Frank Ivins - Personal
and Confidential, and the fax number is (214) 946-5932.
Holders of the Old Debt Securities are requested to respond as soon as possible,
but no later than the expiration date, September 24, 1998. Shares of Junior
Convertible Preferred Stock will only be issued to holders who participate in
the Exchange Offers.
Morrow & Co., Inc. (the "Information Agent"), is the
Information Agent in connection with the Exchange Offers. Any questions or
requests for assistance may be directed to the Information Agent at 445 Park
Avenue, New York, New York 10022, telephone: (212) 754-8000 or (800) 662-5200.
For further information regarding the procedures to be followed by Holders in
connection with the Exchange Offers, Holders may contact the Company at 2187
Atlantic Street, Stamford, CT, 06902, Attention: George Leibowitz, Treasurer
(Telephone (203) 325-5470).
3
<PAGE>
I urge you to support the Transaction and exchange your securities.
Sincerely,
By: /s/ Irik P. Sevin
-------------------
Irik P. Sevin
Chairman of the Board
Chief Executive Officer and President
Encls.
4
<PAGE>
PETROLEUM HEAT AND POWER CO., INC.
Offer to Exchange
to holders of its
10 1/8% Subordinated Notes due 2003
9 3/8% Subordinated Debentures due 2006
12 1/4% Subordinated Debentures due 2005
To Securities Dealers, Commercial Banks
Trust Companies and Other Nominees:
Petroleum Heat and Power Co., Inc., a Minnesota corporation ("Petro" or
the "Company"), hereby offers, upon the terms and subject to the conditions set
forth in the Offering Circular dated August 26, 1998 (the "Offering Circular")
and the accompanying Letters of Transmittal, Consent and Proxy (the "Letters of
Transmittal" which together with the Offering Circular constitute the "Exchange
Offers") to exchange any and all its securities set forth above for the
following securities of the Company:
<TABLE>
<CAPTION>
For Each $1,000 Principal Amount of: The Holder Will Receive:
- ------------------------------------ ------------------------
<S> <C>
10 1/8% Subordinated Notes due 2003 $1,000 principal amount of the Company's 10 1/8% Senior
(the "Old 101/8% Notes") Subordinated Notes due 2003 plus 3.3732 shares of the
Company's 1998 Junior Convertible Preferred Stock (the
"New Junior Preferred Stock")
9 3/8% Subordinated Debentures due 2006 $1,000 principal amount of the Company's 9 3/8% Senior
(the "Old 9 3/8% Debentures") Subordinated Debentures due 2006 plus 3.3732 shares of
New Junior Preferred Stock
12 1/4% Subordinated Debentures due 2005 $1,000 principal amount of the Company's 12 1/4% Senior
(the "Old 12 1/4% Debentures") Subordinated Debenture due 2005 plus 3.3732 shares of
New Junior Preferred Stock
</TABLE>
The Old 10 1/8% Notes, the Old 9 3/8% Debentures and the Old 12 1/4%
Debentures are sometimes collectively referred to herein as the "Old Debt
Securities."
We are asking you to contact your clients for whom you hold Old Debt
Securities registered in your name or in the name of your nominee, in addition,
we ask you to contact your clients who, to your knowledge, hold Old Debt
Securities registered in their own name. The Company will not pay any fees or
commissions to any broker, dealer or other person in connection with the
solicitation of tenders pursuant to the Exchange Offers. You will, however, be
reimbursed by the Company for customary mailing and handling expenses incurred
by you in forwarding any of the enclosed materials to your clients. The Company
will pay all transfer taxes, if any, applicable to the tender of Old Debt
Securities to its order, except as otherwise provided in the Offering Circular
and the Letters of Transmittal.
Enclosed are copies of the following documents:
1. The Offering Circular
2. Letters of Transmittal for your use in connection with the exchange
of Old Debt Securities and for the information of your clients (facsimile copies
of the Letters of Transmittal may be used to exchange Old Debt Securities). The
white Letter of Transmittal relates to the Old 10 1/8% Notes. The
<PAGE>
green Letter of Transmittal relates to the Old 9 3/8% Debentures. The blue
Letter of Transmittal relates to the Old 12 1/4% Debentures
3. A form of letter that may be sent to your clients for whose accounts
you hold Old Debt Securities registered in your name and or the name of your
nominee, with space provided for obtaining the clients' instructions with regard
to the Exchange Offers;
4. A Notice of Guaranteed Delivery;
5. Guidelines of the Internal Revenue Service for Certification of
Taxpayer Identification Number on Substitute Form W-9; and
6. A return envelope addressed to The Chase Manhattan Bank, the
Exchange Agent.
Your prompt action is requested. The Exchange Offers will expire at
5:00 p.m., New York City time, on September 24, 1998, unless extended (the
"Expiration Date"). Old Debt Securities tendered pursuant to the Exchange Offers
may be withdrawn, subject to the procedures described in the Offering Circular,
at any time until the Minimum Debt Exchanges (as defined in the Offering
Circular) have been received and accepted by the Company.
To tender Old Debt Securities, certificates for Old Debt Securities or
confirmation of any book-entry transfer into the Exchange Agent's account at The
Depository Trust Company, and a duly executed and properly completed Letter of
Transmittal or a facsimile thereof or an Agent's Message (as defined in the
Offering Circular), and any other required documents, must be received by the
Exchange Agent as provided in the Offering Circular and the Letters of
Transmittal.
Questions and requests for assistance with respect to the Exchange
Offer or for additional copies of the enclosed material may be directed to
the Exchange Agent at its address set forth in the Offering Circular or at
(214) 946-5678.
Very truly yours,
PETROLEUM HEAT AND POWER CO., INC.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTI TUTE
YOU OR ANY PERSON AS AN AGENT OF THE COMPANY OR THE EXCHANGE AGENT, OR ANY
AFFILIATE THEREOF, OR AUTHORIZE YOU OR ANY OTHER PERSON TO MAKE ANY STATEMENTS
OR USE ANY DOCUMENT ON BEHALF OF ANY OF THEM WITH RESPECT TO THE EXCHANGE OFFER,
EXCEPT FOR THE ENCLOSED DOCUMENTS AND THE STATEMENTS EXPRESSLY MADE IN THE
OFFERING CIRCULAR AND THE LETTERS OF TRANSMITTAL.
2
<PAGE>
PETROLEUM HEAT AND POWER CO., INC.
Exchange Offer
to holders of its
10 1/8% Subordinated Notes due 2003
9 3/8% Subordinated Debentures due 2006
12 1/4% Subordinated Debentures due 2005
To Our Clients:
Enclosed for your consideration is an Offering Circular dated August
26, 1998 (as the same may be amended or supplemented from time to time, the
"Offering Circular") and forms of Letters of Transmittal, Consent and Proxy (the
"Letters of Transmittal"), pursuant to which Petroleum Heat and Power Co., Inc.,
a Minnesota corporation ("Petro" or the "Company"), is offering, upon the terms
and subject to the conditions set forth in the Offering Circular and the
accompanying Letters of Transmittal (which together constitute the "Exchange
Offers") to exchange any and all its securities set forth above for the
following securities of the Company:
<TABLE>
<CAPTION>
For Each $1,000 Principal Amount of: The Holder Will Receive:
- ------------------------------------ ------------------------
<S> <C>
10 1/8% Subordinated Notes due 2003 $1,000 principal amount of the Company's 10 1/8% Senior
(the "Old 101/8% Notes") Subordinated Notes due 2003 (the "New 10 1/8% Notes")
plus 3.3732 shares of the Company's 1998 Junior
Convertible Preferred Stock (the "New Junior Preferred
Stock")
9 3/8% Subordinated Debentures due 2006 $1,000 principal amount of the Company's 9 3/8% Senior
(the "Old 9 3/8% Debentures") Subordinated Debentures due 2006 (the "New 9 3/8%
Debentures") plus 3.3732 shares of New Junior
Preferred Stock
12 1/4% Subordinated Debentures due 2005 $1,000 principal amount of the Company's 12 1/4% Senior
(the "Old 12 1/4% Debentures") Subordinated Debenture due 2005 (the "New 12 1/4%
Debentures") plus 3.3732 shares of New Junior Preferred
Stock
</TABLE>
The Old 10 1/8% Notes, the Old 9 3/8% Debentures and the Old 12 1/4%
Debentures are sometimes collectively referred to herein as the "Old Debt
Securities." The New 10 1/8% Notes, the New 9 3/8 % Debentures and the
New 12 1/4% Debentures are sometimes collectively referred to herein as the
"New Debt Securities."
The material is being forwarded to you as the beneficial owner of Old
Debt Securities carried by us for your account or benefit but not registered in
your name. A tender of any Old Debt Securities may be made only by us as the
registered holder and pursuant to your instructions. Therefore, the Company
urges beneficial owners of Old Debt Securities registered in the name of a
broker, dealer, commercial bank, trust company or other nominee to contact such
registered holder promptly if they wish to tender Old Debt Securities in the
Exchange Offers.
<PAGE>
Accordingly, we request instructions as to whether you wish to tender
any or all such Old Debt Securities held by us for your account, pursuant to the
terms and conditions set forth in the Offering Circular and Letters of
Transmittal. We urge you to read carefully the Offering Circular and Letters of
Transmittal before instructing us to tender your Old Debt Securities.
Your instructions to us should be forwarded as promptly as possible in
order to permit us to tender your Old Debt Securities on your behalf in
accordance with the provisions of the Exchange Offers. The Exchange Offers will
expire at 5:00 p.m., New York City time, on September 24, 1998, unless extended
(the "Expiration Date"). Old Debt Securities tendered pursuant to the Exchange
Offers may be withdrawn, subject to the procedures described in the Offering
Circular, at any time until the Minimum Debt Exchanges (as such term is defined
in the Offering Circular) have been received and accepted by the Company.
Your attention is directed to the following:
1. The terms of the New Debt Securities are identical to the
terms of the Old Debt Securities, except that (i) the New Debt
Securities will be senior in right of payment to any Old Debt
Securities that remain outstanding after the consummation of the
Exchange Offers, and (ii) the New Debt Securities grant the Company the
right to redeem such Securities for cash on or before April 1, 1999 in
connection with the closing of the proposed Star Gas Transaction for
the following prices plus accrued but unpaid interest thereon through
the date of redemption.
<TABLE>
<CAPTION>
New Debt Security Redemption Price
- ----------------- ----------------
(Plus accrued but unpaid interest)
<S> <C> <C> <C>
New 10 1/8% Notes 100% of face value
New 9 3/8% Debentures 100% of face value
New 12 1/4% Debentures 103.5% of face value
</TABLE>
2. THE EXCHANGE OFFERS ARE SUBJECT TO CERTAIN CONDITIONS, SEE
"THE EXCHANGE OFFERS--CONDITIONS" IN THE OFFERING CIRCULAR.
3. The Exchange Offers will expire at 5:00 p.m., New York City
time, on September 24, 1998, unless extended.
4. The Company has agreed to pay the expenses of the Exchange
Offers except as provided in the Offering Circular and the Letters of
Transmittal.
5. Any transfer taxes incident to the transfer of Old Debt
Securities from the tendering Holder to the Company will be paid by the
Company, except as provided in the Offering Circular and the Letters of
Transmittal.
6. Holders of Old Debt Securities who validly tender their Old
Debt Securities will be deemed to have given their Consent with respect
to such Old Debt Securities to the Old Debt Amendments.
- 2 -
<PAGE>
7. Holders of Old Debt Securities who validly tender their Old Debt
Securities will be deemed to have irrevocably made, constituted and appointed
the Company, the attorney and proxy of the Holder, with full power of
substitution, to attend, and vote all of the shares of New Junior Preferred
Stock to be issued to the Holder pursuant to the Exchange Offers at, any
stockholder's meeting of the Company (or to execute a written consent) in
favor of the Star Gas Transaction. This power of attorney and all authority
hereby conferred is coupled with an interest and shall be irrevocable
pursuant to Minnesota statutes Section 302A.449, Subd.2 and shall not be
terminated prior to 5:00 p.m. New York City time on April 1, 1999.
The Exchange Offers are not being made to nor will exchange be accepted
from or on behalf of holders of Old Debt Securities in any jurisdiction in which
the making of the Exchange Offers or the acceptance thereof would not be in
compliance with the laws of such jurisdiction.
If you wish to have us tender any or all of your Old Debt Securities
held by us for your account or benefit, please so instruct us by completing,
executing and returning to us the instruction form that appears below. The
accompanying Letters of Transmittal are furnished to you for informational
purposes only and may not be used by your to tender Old Debt Securities held by
us and registered in our name for your account or benefit.
- 3 -
<PAGE>
INSTRUCTIONS
The undersigned acknowledge(s) receipt of your letter and the enclosed
material referred to therein relating to the Exchange Offers of Petroleum Heat
and Power Co., Inc., including the Offering Circular and the Letters of
Transmittal.
This form will instruct you to exchange the aggregate number of shares
Old Debt Securities indicated below (or, if no aggregate number amount is
indicated below, all Old Debt Securities) held by you for the account or benefit
of the undersigned, pursuant to the terms and conditions set forth in the
Offering Circular and Letters of Transmittal.
- --------------------------------------------------------------------------------
Please tender the following Old Debt Securities held by you for the
account of the undersigned:
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Old Debt Securities Principal Amount
------------------- ----------------
<S> <C>
[] 10 1/8% Subordinated Notes due 2003 $
[] 9 3/8% Subordinated Debentures due 2006 $
[] 12 1/4% Subordinated Debentures due 2005 $
</TABLE>
- --------------------------------------------------------------------------------
I (we) understand that if I (we) sign these instruction forms without indicating
an aggregate number of shares of Old Debt Securities in the space above, all Old
Debt Securities held by you for my (our) account will be exchanged.
- -------------------------------------
Signature(s)
- -------------------------------------
- -------------------------------------
- -------------------------------------
- -------------------------------------
(Please print name(s) and address above)
Dated: , 1998
- -------------------------------------
(Area Code & Telephone Number)
- -------------------------------------
(Taxpayer Identification or Social
Security Number)
- 4 -
<PAGE>
