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EXHIBIT 10.16.2
HERITAGE OPERATING, L.P.
SECOND AMENDMENT AGREEMENT
Re: Note Purchase Agreement dated as of June 25, 1996
Note Purchase Agreement dated as of November 19, 1997
Dated as of
September 1, 1999
To each of the Holders named
in Schedule 1 to this Second
Amendment Agreement
Ladies and Gentlemen:
Reference is made to
(i) the Note Purchase Agreement dated as of June 25, 1996
(the "Original 1996 Agreement"), among Heritage Operating, L.P., a
Delaware limited partnership (the "Company") and the Purchasers named
in the Purchaser Schedule attached thereto, as amended by a First
Amendment Agreement (the "First Amendment Agreement") dated as of
October 15, 1998 (said Original 1996 Agreement, as amended, being
hereinafter referred to as the "Outstanding 1996 Agreement") under and
pursuant to which the Company issued, and there are presently
outstanding, $120,000,000 aggregate principal amount of its 8.55%
Senior Secured Notes due 2011 (the "1996 Notes"); and
(ii) the Note Purchase Agreement dated as of November 19,
1997 (the "Basic 1997 Agreement"), among the Company and the
Purchasers named in the Initial Purchaser Schedule attached thereto,
as amended by the First Amendment Agreement (said Basic 1997
Agreement, as so amended, being hereinafter referred to as the
"Amended Basic 1997 Agreement"), under and pursuant to which the
Company issued, and there are presently outstanding, $12,000,000
aggregate principal amount of its 7.17% Series A Senior Secured Notes
due November 19, 2009 (the "Series A Notes") and $20,000,000 aggregate
principal amount of its 7.26% Series B Senior Secured Notes due
November 19, 2012 (the "Series B Notes"), as supplemented by the 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
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amount of its 6.67% Series E Senior Secured Notes due March 13, 2013
(the "Series E Notes").
The Amended 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 "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 "$20,000,000" set forth in Section 6B(ii) of the
Outstanding 1996 Agreement is hereby deleted and "$35,000,000" shall be
substituted therefor.
I-B. The reference to "$30,000,000" set forth in Section 6B(iii) of the
Outstanding 1996 Agreement is hereby deleted and the phrase "the Contracted
Dollar" shall be substituted therefor.
I-C. The reference to "$30,000,000" contained in the definition of the
term "Acquisition Facility" set forth in Section 10B of the Outstanding 1996
Agreement is hereby deleted and the phrase "the Contracted Dollar" shall be
substituted therefor.
I-D. The references to "$20,000,000" 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 "$35,000,000" shall be
substituted therefor.
I-E. Section 10B of the Outstanding 1996 Agreement is hereby amended by
adding thereto a new definition, in the proper alphabetical position, to be
entitled "Contracted Dollar" and to read as follows:
"`Contracted Dollar' shall mean the sum of:
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(a) $50,000,000; plus
(b) $45,000,000 from and after any date, occurring
on or prior to March 31, 2000, on which the Company or any
Subsidiary shall purchase the retail propane properties and
underground propane storage facilities of SCANA Corporation
which are being offered for sale by such corporation on
September 1, 1999; minus (to the extent that the amount of
`Contracted Dollar' is not reduced below $50,000,000)
(c) the net cash proceeds to the Company or any
Subsidiary resulting from any sale of Capital Stock of the
Company or any Subsidiary to any Person (other than the
Company or a Subsidiary), on or prior to August 1, 2001."
ARTICLE II
AMENDMENTS TO OUTSTANDING 1997 AGREEMENT
II-A. The reference to "$20,000,000" set forth in Section 6B(ii) of the
Outstanding 1997 Agreement is hereby deleted and "$35,000,000" shall be
substituted therefor.
II-B. The reference to "$30,000,000" set forth in Section 6B(iii) of the
Outstanding 1997 Agreement is hereby deleted and the phrase "the Contracted
Dollar" shall be substituted therefor.
II-C. The reference to "$30,000,000" contained in the definition of the
term "Acquisition Facility" set forth in Section 10B of the Outstanding 1997
Agreement is hereby deleted and the phrase "the Contracted Dollar" shall be
substituted therefor.
II-D. The references to "$20,000,000" 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 "$35,000,000" shall be
substituted therefor.
II-E. Section 10B of the Outstanding 1997 Agreement is hereby amended by
adding thereto a new definition, in the proper alphabetical position, to be
entitled "Contracted Dollar" and to read as follows:
" `Contracted Dollar' shall mean the sum of:
(a) $50,000,000; plus
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(b) $45,000,000 from and after any date, occurring
on or prior to March 31, 2000, on which the Company or any
Subsidiary shall purchase the retail propane properties and
underground propane storage facilities of SCANA Corporation
which are being offered for sale by such corporation on
September 1, 1999; minus (to the extent that the amount of
`Contracted Dollar' is not reduced below $50,000,000)
(c) the net cash proceeds to the Company or any
Subsidiary resulting from any sale of Capital Stock of the
Company or any Subsidiary to any Person (other than the
Company or a Subsidiary), on or prior to August 1, 2001."
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.
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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 Second 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
Its
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The foregoing Second Amendment Agreement and the amendments referred
to therein are hereby accepted and agreed to as of September 1, 1999, and the
undersigned hereby confirms that on September 1, 1999 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 Second Amendment Agreement and the amendments referred
to therein are hereby accepted and agreed to as of September 1, 1999, and the
undersigned hereby confirms that on September 1, 1999 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 Second Amendment Agreement and the amendments referred
to therein are hereby accepted and agreed to as of September 1, 1999, and the
undersigned hereby confirms that on September 1, 1999 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
PRINCIPAL LIFE INSURANCE COMPANY
(f/k/a Principal Mutual Life Insurance Company)
By
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Its
By
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Its
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The foregoing Second Amendment Agreement and the amendments referred
to therein are hereby accepted and agreed to as of September 1, 1999, and the
undersigned hereby confirms that on September 1, 1999 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: New York Life Insurance Company
By
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Its
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The foregoing Second Amendment Agreement and the amendments referred
to therein are hereby accepted and agreed to as of September 1, 1999, and the
undersigned hereby confirms that on September 1, 1999 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 Second Amendment Agreement and the amendments referred
to therein are hereby accepted and agreed to as of September 1, 1999, and the
undersigned hereby confirms that on September 1, 1999 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
KEYPORT LIFE INSURANCE COMPANY
By Stein Roe & Farnham Incorporated, as agent
By
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Its
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The foregoing Second Amendment Agreement and the amendments referred
to therein are hereby accepted and agreed to as of September 1, 1999, and the
undersigned hereby confirms that on September 1, 1999 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 Second Amendment Agreement and the amendments referred
to therein are hereby accepted and agreed to as of September 1, 1999, and the
undersigned hereby confirms that on September 1, 1999 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 Second Amendment Agreement and the amendments referred
to therein are hereby accepted and agreed to as of September 1, 1999, and the
undersigned hereby confirms that on September 1, 1999 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 Second Amendment Agreement and the amendments referred
to therein are hereby accepted and agreed to as of September 1, 1999, and the
undersigned hereby confirms that on September 1, 1999 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 Second Amendment Agreement and the amendments referred
to therein are hereby accepted and agreed to as of September 1, 1999, and the
undersigned hereby confirms that on September 1, 1999 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: Conning Asset Management
By
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Its
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The foregoing Second Amendment Agreement and the amendments referred
to therein are hereby accepted and agreed to as of September 1, 1999, and the
undersigned hereby confirms that on September 1, 1999 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 Second Amendment Agreement and the amendments referred
to therein are hereby accepted and agreed to as of September 1, 1999, and the
undersigned hereby confirms that on September 1, 1999 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 Second Amendment Agreement and the amendments referred
to therein are hereby accepted and agreed to as of September 1, 1999, and the
undersigned hereby confirms that on September 1, 1999 it held the aggregate
principal amount of Outstanding Notes of the Company set forth on Schedule 1
hereto and that on the date of execution hereof it continues to hold such
Outstanding Notes.
JEFFERSON PILOT FINANCIAL INSURANCE COMPANY
(FKA Chubb Life Insurance Company of America)
By
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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 SEPTEMBER 1, 1999
John Hancock Mutual Life Insurance Company $13,000,000 1996 Notes
John Hancock Mutual Life Insurance Company $8,000,000 1996 Notes
John Hancock Variable Life Insurance Company $1,000,000 1996 Notes
Mellon Bank, N.A., Trustee Under Master Trust $3,000,000 1996 Notes
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 1996 Notes
Principal Mutual Life Insurance Company $15,000,000 1996 Notes
New York Life Insurance Company $12,500,000 1996 Notes
Teachers Insurance and Annuity Association of America $12,500,000 1996 Notes
Keyport Life Insurance Company $10,000,000 1996 Notes
MONY Life Insurance Company of America $3,500,000 1996 Notes
The Mutual Life Insurance Company of New York $4,000,000 1996 Notes
Pacific Mutual Life Insurance Company $5,500,000 1996 Notes
Phoenix Home Life Mutual Insurance Company $5,000,000 1996 Notes
ReliaStar Life Insurance Company $5,000,000 1996 Notes
General American Life Insurance Company $4,000,000 1996 Notes
Wisconsin National Life Insurance Company $3,000,000 1996 Notes
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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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