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EXHIBIT 10.2.3
HERITAGE OPERATING, L.P.
FIRST AMENDMENT AGREEMENT
Re: Note Purchase Agreement dated as of June 25, 1996
Note Purchase Agreement dated as of November 19, 1997
Dated as of
October 15, 1998
To each of the Holders named
in Schedule 1 to this First
Amendment Agreement
Ladies and Gentlemen:
Reference is made to
(i) the Note Purchase Agreement dated as of June 25, 1996 (the
"Outstanding 1996 Agreement"), among Heritage Operating, L.P., a
Delaware limited partnership (the "Company") and the Purchasers named
in the Purchaser Schedule attached thereto, under and pursuant to which
the Company issued, and there are presently outstanding, $120,000,000
aggregate principal amount of its 8.55% Senior Secured Notes due 2011
(the "1996 Notes"); and
(ii) the Note Purchase Agreement dated as of November 19, 1997
(the "Basic 1997 Agreement"), among the Company and the Purchasers
named in the Initial Purchaser Schedule attached thereto, under and
pursuant to which the Company issued, and there are presently
outstanding, $12,000,000 aggregate principal amount of its 7.17% Series
A Senior Secured Notes due November 19, 2009 (the "Series A Notes") and
$20,000,000 aggregate principal amount of its 7.26% Series B Senior
Secured Notes due November 19, 2012 (the "Series B Notes"), as
supplemented by the First Supplemental Note Purchase Agreement dated as
of March 13, 1998 the "First Supplemental Agreement" among the Company
and the Purchasers named in the Supplemental Purchaser Schedule
attached thereto, under and pursuant to which the Company issued, and
there are presently outstanding, (x) $5,000,000 aggregate principal
amount of its 6.50% Series C Senior Secured Notes due March 13, 2007
(the "Series C Notes"), (y) $5,000,000 aggregate principal amount of
its 6.59% Series D Senior Secured Notes due March 13, 2010 (the "Series
D Notes") and (z) $5,000,000 aggregate principal amount of its 6.67%
Series E Senior Secured Notes due March 13, 2013 (the "Series E
Notes").
The Basic 1997 Agreement, as supplemented by the First Supplemental Agreement is
hereinafter sometimes referred to as the "Outstanding 1997 Agreement". The
Outstanding 1996 Agreement and the Outstanding 1997 Agreement are hereinafter
sometimes collectively referred to as the
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"Outstanding Agreements". The 1996 Notes, Series A Notes, Series B Notes, Series
C Notes, Series D Notes and Series E Notes are hereinafter sometimes
collectively referred to as the "Outstanding Notes."
The Company now desires to amend certain provisions of the Outstanding
Agreements. You are the owner and holder of the Outstanding Notes set forth
opposite your name on Schedule 1 hereto. The Company hereby requests that from
and after your acceptance hereof in the manner hereinafter provided and upon
receipt by the Company of similar acceptances from the holders of the requisite
percentage of each issue of the Outstanding Notes, said Outstanding Agreements
shall be amended in the respects, but only in the respects, hereinafter set
forth.
ARTICLE I
AMENDMENTS TO OUTSTANDING 1996 AGREEMENT
I-A. The reference to "$15,000,000" set forth in Section 6B(ii) of the
Outstanding 1996 Agreement is hereby deleted and "$20,000,000" shall be
substituted therefor.
I-B. The reference to "$35,000,000" set forth in Section 6B(iii) of the
Outstanding 1996 Agreement is hereby deleted and "$30,000,000" shall be
substituted therefor.
I-C. Section 7A(v) of the Outstanding 1996 Agreement is hereby amended
and restated in its entirety to read as follows:
"(v) the Company fails to perform, observe or comply with any
agreement contained in Section 6 or Section 5A(v); or"
I-D. The definition of the term "Reinvestment Yield" set forth in
Section 10A of the Outstanding 1996 Agreement is hereby amended and restated in
its entirety to read as follows:
"`Reinvestment Yield'" shall mean, with respect to the Called
Principal of any Note, 0.50% over the yield to maturity implied by (i)
the yields reported, as of 10:00 a.m. (New York City time) on the third
Business Day next preceding the Settlement Date with respect to such
Called Principal, on the display designated as "Page 678" on the
Telerate Service (or such other display as may replace Page 678 on the
Telerate Service) for actively traded U.S. Treasury securities having a
maturity equal to the Remaining Average Life of such Called Principal
as of such Settlement Date, or if such yields shall not be reported as
of such time or the yields reported as of such time shall not be
ascertainable, (ii) the Treasury Constant Maturity Series yields
reported, for the latest day for which such yields shall have been so
reported as of the third Business Day next preceding the Settlement
Date with respect to such Called Principal, in Federal Reserve
Statistical Release H.15 (519) (or any comparable successor
publication) for actively traded U.S. Treasury securities having a
constant maturity equal to the Remaining
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Average Life of such Called Principal as of such Settlement Date. Such
implied yield shall be determined, if necessary, by (a) converting U.S.
Treasury bill quotations to bond-equivalent yields in accordance with
accepted financial practice and (b) interpolating linearly between
yields reported for various maturities if no maturity corresponds to the
applicable Remaining Average Life."
I-E. The reference to "$35,000,000" contained in the definition of the
term "Acquisition Facility" set forth in Section 10B of the Outstanding 1996
Agreement is hereby deleted and "$30,000,000" shall be substituted therefor.
I-F. The references to "$15,000,000" contained in the definition of the
term "Revolving Working Capital Facility" set forth in Section 10B of the
Outstanding 1996 Agreement are hereby deleted and "$20,000,000" shall be
substituted therefor.
ARTICLE II
AMENDMENTS TO OUTSTANDING 1997 AGREEMENT
II-A. The reference to "$15,000,000" set forth in Section 6B(ii) of the
Outstanding 1997 Agreement is hereby deleted and "$20,000,000" shall be
substituted therefor.
II-B. The reference to "$35,000,000" set forth in Section 6B(iii) of the
Outstanding 1997 Agreement is hereby deleted and "$30,000,000" shall be
substituted therefor.
II-C. Section 7A(v) of the Outstanding 1997 Agreement is hereby amended
and restated in its entirety to read as follows:
"(v) the Company fails to perform, observe or comply with any
agreement contained in Section 6 or Section 5A(v); or"
II-D. The definition of the term "Reinvestment Yield" set forth in
Section 10A of the Outstanding 1997 Agreement is hereby amended and restated in
its entirety to read as follows:
"`Reinvestment Yield'" shall mean, with respect to the Called
Principal of any Note, 0.50% over the yield to maturity implied by (i)
the yields reported, as of 10:00 a.m. (New York City time) on the third
Business Day next preceding the Settlement Date with respect to such
Called Principal, on the display designated as "Page 678" on the
Telerate Service (or such other display as may replace Page 678 on the
Telerate Service) for actively traded U.S. Treasury securities having a
maturity equal to the Remaining Average Life of such Called Principal as
of such Settlement Date, or if such yields shall
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not be reported as of such time or the yields reported as of such time
shall not be ascertainable, (ii) the Treasury Constant Maturity Series
yields reported, for the latest day for which such yields shall have
been so reported as of the third Business Day next preceding the
Settlement Date with respect to such Called Principal, in Federal
Reserve Statistical Release H.15 (519) (or any comparable successor
publication) for actively traded U.S. Treasury securities having a
constant maturity equal to the Remaining Average Life of such Called
Principal as of such Settlement Date. Such implied yield shall be
determined, if necessary, by (a) converting U.S. Treasury bill
quotations to bond-equivalent yields in accordance with accepted
financial practice and (b) interpolating linearly between yields
reported for various maturities if no maturity corresponds to the
applicable Remaining Average Life."
II-E. The reference to "clause (xiv)" contained in the definition of the
term "Priority Debt" set forth in Section 10B of the Outstanding 1997 Agreement
is hereby deleted and "clause (xv)" shall be substituted therefor.
II-F. The reference to "$35,000,000" contained in the definition of the
term "Acquisition Facility" set forth in Section 10B of the Outstanding 1997
Agreement is hereby deleted and "$30,000,000" shall be substituted therefor.
II-G. The references to "$15,000,000" contained in the definition of the
term "Revolving Working Capital Facility" set forth in Section 10B of the
Outstanding 1997 Agreement are hereby deleted and "$20,000,000" shall be
substituted therefor.
ARTICLE III
MISCELLANEOUS
III-A. If the foregoing is acceptable to you, kindly note your acceptance
in the space provided below and upon receipt by the Company of similar
acceptances signed by the holders of the requisite percentage of each issue of
the Outstanding Notes, the Outstanding Agreements shall be amended and restated
as set forth above, but all other terms and provisions of the Outstanding
Agreements shall remain unchanged and are in all respects ratified, confirmed
and approved.
III-B. By your acceptance hereof you also agree that you shall, prior to
any sale, assignment, transfer, pledge or other disposition by you of any
Outstanding Notes, either (i) place on the Outstanding Notes so to be disposed
of an appropriate endorsement referring to this First Amendment Agreement as
binding upon the parties hereto and upon any and all future holders of such
Outstanding Notes, or (ii) (at your option) surrender such Outstanding Notes for
new notes modified to reflect the changes set forth herein. All expenses for the
preparation of such new notes and the exchange of such Outstanding Notes are to
be borne by the Company.
Very truly yours,
HERITAGE OPERATING L.P.
By Heritage Holdings, Inc., General Partner
By /s/ H. Michael Krimbill
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Its Vice President and CFO
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The foregoing First Amendment Agreement and the amendments referred to
therein are hereby accepted and agreed to as of October 15, 1998, and the
undersigned hereby confirms that on October 15, 1998 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
JOHN HANCOCK MUTUAL LIFE INSURANCE
COMPANY
By
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Its
JOHN HANCOCK VARIABLE LIFE INSURANCE
COMPANY
By
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Its
MELLON BANK, N.A., solely in its capacity as Trustee for the Long-Term
Investment Trust (as directed by John Hancock Mutual Life Insurance Company),
and not in its individual capacity
By
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Its
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The foregoing First Amendment Agreement and the amendments referred to
therein are hereby accepted and agreed to as of October 15, 1998, and the
undersigned hereby confirms that on October 15, 1998 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By
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Its
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The foregoing First Amendment Agreement and the amendments referred to
therein are hereby accepted and agreed to as of October 15, 1998, and the
undersigned hereby confirms that on October 15, 1998 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
By
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Its
By
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Its
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The foregoing First Amendment Agreement and the amendments referred to
therein are hereby accepted and agreed to as of October 15, 1998, and the
undersigned hereby confirms that on October 15, 1998 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
NEW YORK LIFE INSURANCE COMPANY
By
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Its
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION
By
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Its
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The foregoing First Amendment Agreement and the amendments referred to
therein are hereby accepted and agreed to as of October 15, 1998, and the
undersigned hereby confirms that on October 15, 1998 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By
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Its
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The foregoing First Amendment Agreement and the amendments referred to
therein are hereby accepted and agreed to as of October 15, 1998, and the
undersigned hereby confirms that on October 15, 1998 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
KEYPORT LIFE INSURANCE COMPANY
By
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Its
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The foregoing First Amendment Agreement and the amendments referred to
therein are hereby accepted and agreed to as of October 15, 1998, and the
undersigned hereby confirms that on October 15, 1998 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
J. ROMEO & CO.
By
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Its
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The foregoing First Amendment Agreement and the amendments referred to
therein are hereby accepted and agreed to as of October 15, 1998, and the
undersigned hereby confirms that on October 15, 1998 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
PACIFIC LIFE INSURANCE COMPANY
(formerly Pacific Mutual Life Insurance Company)
By
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Its
By
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Its
PACIFIC LIFE INSURANCE COMPANY
By
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Its
By
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Its
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The foregoing First Amendment Agreement and the amendments referred to
therein are hereby accepted and agreed to as of October 15, 1998, and the
undersigned hereby confirms that on October 15, 1998 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
PHOENIX HOME LIFE MUTUAL INSURANCE
COMPANY
By
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Its
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The foregoing First Amendment Agreement and the amendments referred to
therein are hereby accepted and agreed to as of October 15, 1998, and the
undersigned hereby confirms that on October 15, 1998 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
RELIASTAR LIFE INSURANCE COMPANY
By
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Its
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The foregoing First Amendment Agreement and the amendments referred to
therein are hereby accepted and agreed to as of October 15, 1998, and the
undersigned hereby confirms that on October 15, 1998 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
GENERAL AMERICAN LIFE INSURANCE COMPANY
By
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Its
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The foregoing First Amendment Agreement and the amendments referred to
therein are hereby accepted and agreed to as of October 15, 1998, and the
undersigned hereby confirms that on October 15, 1998 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
WISCONSIN NATIONAL LIFE INSURANCE COMPANY
By
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Its
By
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Its
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The foregoing First Amendment Agreement and the amendments referred to
therein are hereby accepted and agreed to as of October 15, 1998, and the
undersigned hereby confirms that on October 15, 1998 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
ALLSTATE LIFE INSURANCE COMPANY
By
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Name:
By
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Name:
Authorized Signatories
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The foregoing First Amendment Agreement and the amendments referred to
therein are hereby accepted and agreed to as of October 15, 1998, and the
undersigned hereby confirms that on October 15, 1998 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
CHUBB LIFE INSURANCE COMPANY
OF AMERICA
By
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Its
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SCHEDULE 1
PRINCIPAL AMOUNT AND
SERIES OF OUTSTANDING
NAME OF HOLDER NOTES HELD AS OF
OF OUTSTANDING NOTES OCTOBER 15, 1998
John Hancock Mutual Life Insurance Company $13,000,000
John Hancock Mutual Life Insurance Company $ 8,000,000
John Hancock Variable Life Insurance Company $ 1,000,000
Mellon Bank, N.A., Trustee Under Master Trust $ 3,000,000
Agreement of AT&T Corporation dated
January 1, 1984 for Employee Pension Plans
- AT&T - John Hancock - Private Placement
Massachusetts Mutual Life Insurance Company $15,000,000
Principal Mutual Life Insurance Company $15,000,000
New York Life Insurance Company $12,500,000
Teachers Insurance and Annuity Association of America $12,500,000
Keyport Life Insurance Company $10,000,000
MONY Life Insurance Company of America $ 3,500,000
The Mutual Life Insurance Company of New York $ 4,000,000
Pacific Mutual Life Insurance Company $ 5,500,000
Phoenix Home Life Mutual Insurance Company $ 5,000,000
ReliaStar Life Insurance Company $ 5,000,000
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General American Life Insurance Company $ 4,000,000
Wisconsin National Life Insurance Company $ 3,000,000
Pacific Life Insurance Company $12,000,000 Series A Notes
Pacific Life Insurance Company $8,000,000 Series B Notes
New York Life Insurance Company $5,000,000 Series B Notes
New York Life Insurance and
Annuity Corporation $7,000,000 Series B Notes
Allstate Life Insurance Company $5,000,000 Series C Notes
Chubb Life Insurance Company
of America $5,000,000 Series D Notes
MONY Life Insurance Company
of America $5,000,000 Series E Notes
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