EXHIBIT 10.3
AMENDMENT NO. 1
TO
CONTRIBUTION AGREEMENT
THIS AMENDMENT NO. 1 TO CONTRIBUTION AGREEMENT (this "Amendment") is
made and entered into as of the 7th day of December, 2003, by and among: (i) La
Grange Energy, L.P., a Texas limited partnership ("La Grange"), (ii) Heritage
Propane Partners, L.P., a Delaware limited partnership ("Heritage MLP") and
(iii) U.S. Propane, L.P., a Delaware limited partnership ("Heritage GP"). La
Grange, Heritage MLP and Heritage GP are sometimes referred to in this Amendment
individually as a "Party" and collectively as the "Parties."
W I T N E S S E T H :
WHEREAS, the Parties are the parties to that certain Contribution
Agreement, dated November 6, 2003 (the "Original Agreement");
WHEREAS, Section 8.3 of the Original Agreement provides that the
Original Agreement may only be amended by an instrument in writing signed by
each of the Parties;
WHEREAS, the undersigned Parties are all of the parties to the Original
Agreement; and
WHEREAS, the Parties desire to enter into this Amendment in order to
amend and restate certain provisions of the Original Agreement in their
entirety;
NOW, THEREFORE, in consideration of the premises, the mutual covenants
and agreements contained herein and in the Original Agreement and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby amend the Original Agreement as follows:
1. Certain Definitions. Terms used in this Amendment and not otherwise
defined shall have the meanings set forth in the Original Agreement.
2. Amendments to the Original Agreement.
(a) Section 2.4 Amendments. Section 2.4 of the Original Agreement is
hereby amended to (i) insert the word "actual" immediately prior to the words
"capital expenditures" and (ii) delete the phrase "in an amount as mutually
agreed to by the Parties" and to insert in lieu thereof the phrase "in an amount
as mutually determined by the Parties."
(b) Section 2.5 Amendments. Section 2.5 of the Original Agreement is
hereby amended to (i) insert the word "actual" immediately prior to the words
"capital expenditures" and (ii) delete the phrase "in an amount as mutually
agreed to by the Parties" and to insert in lieu thereof the phrase "in an amount
as mutually determined by the Parties."
(c) Section 3.2(e) Amendment. Section 3.2(e) of the Original Agreement
is hereby amended to delete the word "and" and to insert in lieu thereof the
phrase "in substantially the form" immediately preceding the phrase "attached
hereto as Exhibit 3.2(e)(i)."
(d) Section 7.1 Amendments. Section 7.1 of the Original Agreement is
hereby amended and restated in its entirety to provide as follows:
"7.1 CONDITIONS TO CLOSING OF LA GRANGE.
The obligations of La Grange to consummate the transactions
contemplated by this Agreement at the Closing shall be subject to the
fulfillment by each of the Heritage Parties on or prior to the Closing
Date of each of the following conditions:
(a) Representations and Warranties True. All the
representations and warranties of the Heritage Parties contained in
this Agreement, and in any agreement, instrument or document delivered
by any of the Heritage Parties pursuant to this Agreement on or prior
to the Closing Date shall be true and correct, individually and in the
aggregate, in all material respects (other than any representation or
warranty that is qualified by materiality or a Heritage Material
Adverse Effect, which shall be true and correct in all respects) as of
the date of this Agreement and as of the Closing Date.
(b) Covenants and Agreements Performed. Each of the Heritage
Parties shall have performed and complied with, in all material
respects, all covenants and agreements required by this Agreement to be
performed or complied with by it, including, but not limited to, the
consummation of the transactions required to be completed pursuant to
Section 2.2.
(c) Certificates. La Grange shall have received a certificate
from each of the Heritage Parties, in substantially the form set forth
in Exhibit 7.1(c), dated the Closing Date, representing and certifying
that the conditions set forth in Sections 7.1(a) and 7.1(b) have been
fulfilled and a certificate as to the incumbency of the officers
executing this Agreement on behalf of the Heritage Parties.
(d) Legal Proceedings. No preliminary or permanent injunction
or other order, decree or ruling issued by a Governmental Authority,
and no statute, rule, regulation or executive order promulgated or
enacted by a Governmental Authority, shall be in effect that restrains,
enjoins, prohibits or otherwise makes illegal the consummation of the
transactions contemplated hereby. No Proceeding before a Governmental
Authority shall be pending (A) seeking to restrain or prohibit the
consummation of the transactions contemplated hereby or (B) that could
reasonably be expected, if adversely determined, to impose any material
limitation on the ability of La Grange to convey the La Grange Assets
or to receive full payment therefore.
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(e) Consents. All Consents set forth on Schedule 7.1(e) shall
have been obtained or made and shall be in full force and effect as to
the Heritage Parties at the time of the Closing.
(f) No Heritage Material Adverse Effect. Since the date of
this Agreement, there shall not have been any event or condition having
a Heritage Material Adverse Effect.
(g) Deliveries. The Heritage Parties shall have delivered the
Equity Consideration and shall have delivered to an account designated
by La Grange the Cash Consideration and the Capital Expenditures
Payment.
(h) Acquisition Agreement; HHI Purchase Agreement. The
Acquisition Agreement and the HHI Purchase Agreement shall have been
executed and delivered by the parties thereto and all conditions to
closing therein (other than the closing of the transactions pursuant to
this Agreement) shall have been satisfied or waived.
(i) HSR Waiting Period. If applicable, the waiting period
under the HSR Act applicable to the consummation of the transactions
contemplated hereby shall have expired or been terminated without any
adverse condition attached thereto.
(j) Amendment to Heritage MLP Partnership Agreement. Amendment
No. 5 to the MLP Partnership Agreement and Amendment No. 3 to the OLP
Partnership Agreement shall have been duly executed and adopted and
shall be in full force and effect.
(k) Listing. The Common Units issuable to La Grange pursuant
to this Agreement shall have been approved for listing on the New York
Stock Exchange subject to official notice of issuance.
(l) Legal Opinion. La Grange shall have received the written
opinion from Doerner, Saunders, Daniel & Anderson, L.L.P. in
substantially the form attached hereto as Exhibit 7.1(l).
(m) Equity Financing. Heritage MLP shall have completed, or
shall complete contemporaneously with the Closing, a public offering of
Common Units with minimum net proceeds to Heritage MLP of $250 million,
on terms and conditions acceptable to Heritage MLP (the "Equity
Financing").
(n) Debt Financing. Heritage MLP, or one or more Subsidiaries
of Heritage MLP, shall have entered into one or more credit
arrangements on terms and conditions substantially as set forth on
Schedule 7.1(n) and which will provide for loans to be funded at or
contemporaneously with Closing of at least $275 million (the "Debt
Financing").
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(o) Waiver of Prepayment Premiums. The Heritage Parties shall
have obtained waivers or amendments under their existing debt
facilities which would serve to avoid the triggering of any debt
prepayment premiums for which the Heritage Parties may be obligated to
pay as a result of the transactions contemplated by this Agreement or
the Acquisition Agreement, and such waivers or amendments shall not
have been withdrawn (the "Prepayment Waivers")."
(e) Section 7.2 Amendments. Section 7.2 of the Original
Agreement is hereby amended and restated in its entirety to provide as follows:
"7.2 CONDITIONS TO CLOSING OF THE HERITAGE PARTIES.
The obligations of each of the Heritage Parties to consummate
the transactions contemplated by this Agreement at the Closing shall be
subject to the fulfillment by La Grange on or prior to the Closing Date
of each of the following conditions:
(a) Representations and Warranties True. All the
representations and warranties of La Grange contained in this
Agreement, and in any agreement, instrument or document delivered by La
Grange pursuant to this Agreement on or prior to the Closing Date shall
be true and correct, individually and in the aggregate, in all material
respects (other than any representation or warranty that is qualified
by materiality or a La Grange Material Adverse Effect, which shall be
true and correct in all respects) as of the date of this Agreement and
as of the Closing Date.
(b) Covenants and Agreements Performed. La Grange shall have
performed and complied with, in all material respects, all covenants
and agreements required by this Agreement to be performed or complied
with by them, including, but not limited to, the consummation of the
transactions required to be completed pursuant to Section 2.2(b). In
addition, La Grange shall have performed and complied with all the
covenants set forth in Sections 6.12 and 6.13.
(c) Certificates. The Heritage Parties shall have received a
certificate from La Grange, in substantially the form set forth in
Exhibit 7.2(c), executed by La Grange, dated the Closing Date,
representing and certifying that the conditions set forth in Sections
7.2(a) and 7.2(b) have been fulfilled and a certificate as to the
incumbency of any officer executing this Agreement on behalf of La
Grange.
(d) Legal Proceedings. No preliminary or permanent injunction
or other order, decree or ruling issued by a Governmental Authority,
and no statute, rule, regulation or executive order promulgated or
enacted by a Governmental Authority, shall be in effect (i) that
restrains, enjoins, prohibits or otherwise makes illegal the
consummation of the transactions contemplated hereby or (ii) that would
impose any material limitation on the ability of Heritage MLP
effectively to exercise full rights of ownership of the La Grange
Interests and La Grange Assets to be acquired by Heritage MLP under
this Agreement. No Proceeding before a Governmental Authority shall be
pending (A) seeking to
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restrain or prohibit the consummation of the transactions contemplated
hereby or (B) that could reasonably be expected, if adversely
determined, to impose any material limitation on the ability of
Heritage MLP effectively to exercise full rights of ownership of the La
Grange Interests and La Grange Assets to be acquired by Heritage MLP
under this Agreement.
(e) Consents. All Consents set forth on Schedule 7.2(e) shall
have been obtained or made and shall be in full force and effect as to
La Grange or the La Grange Entities at the time of the Closing.
(f) No La Grange Material Adverse Effect. Since the date of
this Agreement, there shall not have been any event or condition having
a La Grange Material Adverse Effect.
(g) Deliveries. La Grange shall have delivered the
certificates representing all of the outstanding La Grange Shares, duly
endorsed in blank or accompanied by transfer powers.
(h) Acquisition Agreement; HHI Purchase Agreement. The
Acquisition Agreement and the HHI Purchase Agreement shall have been
executed and delivered by the parties thereto and all conditions to
closing therein (other than the closing of the transactions pursuant to
this Agreement) shall have been satisfied or waived.
(i) HSR Waiting Period. If applicable, the waiting period
under the HSR Act applicable to the consummation of the transactions
contemplated hereby shall have expired or been terminated without any
adverse condition attached thereto.
(j) Application for Issuance - Common Units. At the Closing,
La Grange will deliver the Application for Issuance of Common Units,
substantially in the form attached as Exhibit 7.2(j).
(k) Legal Opinion. The Heritage Entities shall have received
the written opinion from Thompson & Knight, L.L.P. and such other
written opinions of counsel as may be required in substantially the
form attached hereto as Exhibit 7.2(k)."
(f) Section 8.1 Amendments. Section 8.1(j) of the Original
Agreement is hereby amended and restated in its entirety to provide as follows:
"(j) [Intentionally Omitted.]"
3. Agreement to Amend. This Amendment shall represent the requisite
consent of the Parties pursuant to Section 8.3 of the Original Agreement to
amend the Original Agreement.
4. Counterparts. This Amendment may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
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5. Modification. This Amendment may not be modified, supplemented or
amended in any respect except by written instrument executed by all Parties
hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first written above.
LA GRANGE ENERGY, L.P.
BY: LE GP, LLC
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General Partner
By: /s/ RAY DAVIS
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Name:
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Title:
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HERITAGE PROPANE PARTNERS, L.P.
BY: U.S. Propane, L.P., General Partner
By: U.S. Propane, L.L.C., General Partner
By: /s/ H. MICHAEL KRIMBILL
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Name:
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Title:
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U.S. PROPANE, L.P.
BY: U.S. Propane, L.L.C., General Partner
By: /s/ H. MICHAEL KRIMBILL
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Name:
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Title:
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