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EXHIBIT 10.19
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HERITAGE OPERATING, L.P.
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NOTE PURCHASE AGREEMENT
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Dated as of August 10, 2000
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TABLE OF CONTENTS
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SECTION 1. AUTHORIZATION OF ISSUE OF NOTES.......................................................................6
Section 1A. Initial Series..................................................................................6
Section 1B. Subsequent Series...............................................................................7
SECTION 2. PURCHASE AND SALE OF NOTES............................................................................8
Section 2A. Series A-F Notes................................................................................8
Section 2B. Subsequent Notes................................................................................8
SECTION 3. CONDITIONS OF CLOSINGS................................................................................9
Section 3A. Opinion of Purchasers' Special Counsel..........................................................9
Section 3B. Other Opinions of Counsel.......................................................................9
Section 3C. Legal Investment................................................................................9
Section 3D. Representations and Warranties; No Default.....................................................10
Section 3E. Purchase Permitted by Applicable Laws..........................................................10
Section 3F. Performance; Proceedings.......................................................................10
Section 3G. Sale of Notes to Other Purchasers..............................................................10
Section 3H. Designation of Agreement as Additional Parity Debt Agreement...................................10
Section 3I. Payment of Closing Fees........................................................................11
Section 3J. Private Placement Number.......................................................................11
Section 3K. Insurance......................................................................................11
Section 3L. Reliance Letter From U.S. Propane Counsel......................................................11
Section 3M. Conditions to the Initial Closing..............................................................11
SECTION 4. PREPAYMENTS..........................................................................................11
Section 4A. Series A-F Required Prepayments; Maturity......................................................12
Section 4B. Optional Prepayment............................................................................15
Section 4C. Contingent Prepayments on Disposition, Loss of Assets or Merger
or Change of Control.........................................................................15
Section 4D. Prepayment Procedure for Contingent Prepayments................................................16
Section 4E. Allocation of Section 4B Payments among Series.................................................19
Section 4F. Allocation of Partial Payments within a Series.................................................19
Section 4G. Notice of Optional Prepayment..................................................................19
Section 4H. Retirement of Notes............................................................................20
Section 4I. Notes Not to be Reissued.......................................................................21
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SECTION 5. AFFIRMATIVE COVENANTS................................................................................21
Section 5A. Financial Statements...........................................................................21
Section 5B. Information Required by Rule 144A..............................................................24
Section 5C. Inspection of Property.........................................................................25
Section 5D. Covenant to Secure Notes Equally...............................................................25
Section 5E. Partnership or Corporate Existence, etc.; Compliance with Laws.................................25
Section 5F. Payment of Taxes and Claims....................................................................26
Section 5G. Compliance with ERISA..........................................................................26
Section 5H. Maintenance and Sufficiency of Properties......................................................26
Section 5I. Insurance......................................................................................26
Section 5J. Environmental Laws.............................................................................27
Section 5K. After-Acquired Property........................................................................27
Section 5L. Further Assurances.............................................................................27
Section 5M. No Action Requiring Registration...............................................................28
Section 5N. Books and Accounts.............................................................................28
Section 5O. Available Cash Reserves........................................................................28
Section 5P. Parity Debt....................................................................................28
Section 5Q. Special Counsel Opinions.......................................................................29
Section 5R. General Partner................................................................................29
SECTION 6. NEGATIVE COVENANTS...................................................................................29
Section 6A. Financial Ratios...............................................................................29
Section 6B. Indebtedness...................................................................................30
Section 6C. Liens..........................................................................................32
Section 6D. Priority Debt..................................................................................35
Section 6E. Loans, Advances, Investments and Contingent Liabilities........................................35
Section 6F. Restricted Payments............................................................................37
Section 6G. Consolidation, Merger, Sale of Assets, etc.....................................................37
Section 6H. Business.......................................................................................40
▇▇▇▇▇▇▇ ▇▇. Transactions with Affiliates...................................................................40
Section 6J. Subsidiary Stock and Indebtedness..............................................................41
Section 6K. Payment of Dividends by Subsidiaries...........................................................42
Section 6L. Sales of Receivables...........................................................................42
Section 6M. Material Agreements; Tax Status................................................................42
SECTION 7. EVENTS OF DEFAULT....................................................................................42
Section 7A. Acceleration...................................................................................42
Section 7B. Rescission of Acceleration.....................................................................46
Section 7C. Notice of Acceleration or Rescission...........................................................46
Section 7D. Other Remedies.................................................................................46
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SECTION 8. REPRESENTATIONS, COVENANTS AND WARRANTIES............................................................46
Section 8A. Organization...................................................................................47
Section 8B. Partnership Interests..........................................................................47
Section 8C. Qualification..................................................................................47
Section 8D. Business; Financial Statements.................................................................47
Section 8E. Actions Pending................................................................................48
Section 8F. Changes........................................................................................48
Section 8G. Outstanding Indebtedness.......................................................................48
Section 8H. Title to Properties............................................................................48
Section 8I. Taxes..........................................................................................49
Section 8J. Compliance with Other Instruments, etc.; Solvency..............................................49
Section 8K. Governmental Consent...........................................................................50
Section 8L. Offering of Notes..............................................................................50
Section 8M. Use of Proceeds................................................................................50
Section 8N. ERISA..........................................................................................51
Section 8O. Environmental Compliance.......................................................................51
Section 8P. Pre-emptive Rights.............................................................................52
Section 8Q. Disclosure.....................................................................................52
Section 8R. Federal Reserve Regulations....................................................................52
Section 8S. Investment Company Act.........................................................................53
Section 8T. Public Utility Holding Company Act.............................................................53
Section 8U. Intercreditor Agreement and Security Agreement.................................................53
Section 8V. Certain Representations of Company and General Partner.........................................53
Section 8W. Labor Matters..................................................................................53
SECTION 9. REPRESENTATIONS OF EACH PURCHASER....................................................................54
Section 9A. Nature of Purchase.............................................................................54
Section 9B. Source of Funds................................................................................54
Section 9C. Status of Purchaser............................................................................55
Section 9D. Representations of Each Purchaser to Each Other Purchaser......................................55
SECTION 10. DEFINITIONS.........................................................................................56
Section 10A. Yield-Maintenance Terms.......................................................................56
Section 10B. Other Terms...................................................................................57
Section 10C. Accounting Principles, Terms and Determinations...............................................77
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SECTION 11. MISCELLANEOUS.......................................................................................77
Section 11A. Note Payments.................................................................................77
Section 11B. Expenses......................................................................................78
Section 11C. Consent to Amendments.........................................................................78
Section 11D. Form, Registration, Transfer and Exchange of Notes; Lost Notes................................79
Section 11E. Persons Deemed Owners; Participations.........................................................79
Section 11F. Survival of Representations and Warranties; Entire Agreement..................................80
Section 11G. Successors and Assigns........................................................................80
Section 11H. Disclosure to Other Persons...................................................................80
Section 11I. Notices.......................................................................................81
Section 11J. Substitution of Wholly-Owned Subsidiary.......................................................81
Section 11K. Payments Due on Non-Business Days.............................................................81
Section 11L. Satisfaction Requirement......................................................................82
Section 11M. GOVERNING LAW.................................................................................82
Section 11N. Severability..................................................................................82
Section 11O. Descriptive Headings..........................................................................82
Section 11P. Counterparts..................................................................................82
Section 11Q. Severalty of Obligations......................................................................82
Section 11R. WAIVER OF JURY TRIAL..........................................................................82
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Exhibit A-1 Form of Series A Note
Exhibit A-2 Form of Series B Note
Exhibit A-3 Form of Series C Note
Exhibit A-4 Form of Series D Note
Exhibit A-5 Form of Series E Note
Exhibit A-6 Form of Series F Note
Exhibit A-7 Form of Subsequent Note
Exhibit B Form of Supplemental Note Purchase Agreement
Exhibit C-1 Form of Opinion of Winston & ▇▇▇▇▇▇
Exhibit C-2 Form of Opinion of Doerner, Saunders, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, L.L.P.
Exhibit C-3 Form of Opinion to Collateral Agent from ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P.
Exhibit C-4 Form of Opinion to Collateral Agent from Doerner, Saunders,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, L.L.P.
Initial Purchaser Schedule
Schedule 5Q List of Special Counsel
Schedule 6C Existing Liens
Schedule 6E Investments
Schedule 8B Subsidiaries
Schedule 8C Foreign Qualification
Schedule 8G Other Indebtedness
Schedule 8H Title to Properties
Schedule 8W Labor Matters
Schedule 9B Source of Funds
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HERITAGE OPERATING, L.P.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
As of August 10, 2000
To Each of the Purchasers Named in the Initial
Purchaser Schedule Attached Hereto
Ladies and Gentlemen:
Heritage Operating, L.P., a Delaware limited partnership (the
"Company") agrees with the purchasers named in the Initial Purchaser Schedule
attached hereto (the "Initial Purchasers") as follows:
SECTION 1. AUTHORIZATION OF ISSUE OF NOTES.
The Company will authorize the issue of its senior secured promissory
notes, in an aggregate principal amount not to exceed $250,000,000. Said senior
secured promissory notes will be issued in one or more series (each a "Series")
as hereinafter provided.
Section 1A. Initial Series. The senior secured promissory notes will
initially be issued in six Series.
(i) The first such Series (the "Series A Notes") will be issued in the
aggregate principal amount of $16,000,000; will be dated the date of issue;
will bear interest from such date at the rate of 8.47% per annum, payable
quarterly on the 15th day of each February, May, August and November in each
year (commencing November 15, 2000) until the principal amount thereof shall
become due and payable and shall bear interest on overdue principal (including
any overdue optional prepayment of principal) and premium, if any, and, to the
extent permitted by law, on any overdue installment of interest at the rate
specified therein after the date due for payment, whether by acceleration or
otherwise, until paid; will be expressed to mature on August 15, 2007; and will
otherwise be substantially in the form attached hereto as Exhibit A-1.
(ii) The second such Series (the "Series B Notes") will be issued in
the aggregate principal amount of $32,000,000; will be dated the date of issue;
will bear interest from such date at the rate of 8.55% per annum, payable
quarterly on the 15th day of each February, May, August and November in each
year (commencing November 15, 2000) until the principal amount thereof shall
become due and payable and shall bear interest on overdue principal (including
any overdue optional prepayment of principal) and premium, if any, and, to the
extent permitted by law, on any overdue installment of interest at the rate
specified therein after the date due for payment, whether by acceleration or
otherwise, until paid; will be expressed to mature on August 15, 2010; and will
otherwise be substantially in the form attached hereto as Exhibit A-2.
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(iii) The third such Series (the "Series C Notes") will be issued in
the aggregate principal amount of $27,000,000; will be dated the date of issue;
will bear interest from such date at the rate of 8.59% per annum, payable
quarterly on the 15th day of each February, May, August and November in each
year (commencing November 15, 2000) until the principal amount thereof shall
become due and payable and shall bear interest on overdue principal (including
any overdue optional prepayment of principal) and premium, if any, and, to the
extent permitted by law, on any overdue installment of interest at the rate
specified therein after the date due for payment, whether by acceleration or
otherwise, until paid; will be expressed to mature on August 15, 2010; and will
otherwise be substantially in the form attached hereto as Exhibit A-3.
(iv) The fourth such Series (the "Series D Notes") will be issued in
the aggregate principal amount of $58,000,000; will be dated the date of issue;
will bear interest from such date at the rate of 8.67% per annum, payable
quarterly on the 15th day of each February, May, August and November in each
year (commencing November 15, 2000) until the principal amount thereof shall
become due and payable and shall bear interest on overdue principal (including
any overdue optional prepayment of principal) and premium, if any, and, to the
extent permitted by law, on any overdue installment of interest at the rate
specified therein after the date due for payment, whether by acceleration or
otherwise, until paid; will be expressed to mature on August 15, 2012; and will
otherwise be substantially in the form attached hereto as Exhibit A-4.
(v) The fifth such Series (the "Series E Notes") will be issued in the
aggregate principal amount of $7,000,000; will be dated the date of issue; will
bear interest from such date at the rate of 8.75% per annum, payable quarterly
on the 15th day of each February, May, August and November in each year
(commencing November 15, 2000) until the principal amount thereof shall become
due and payable and shall bear interest on overdue principal (including any
overdue optional prepayment of principal) and premium, if any, and, to the
extent permitted by law, on any overdue installment of interest at the rate
specified therein after the date due for payment, whether by acceleration or
otherwise, until paid; will be expressed to mature on August 15, 2015; and will
otherwise be substantially in the form attached hereto as Exhibit A-5.
(vi) The sixth such Series (the "Series F Notes" and, collectively
with the Series A Notes, the Series B Notes, the Series C Notes, the Series D
Notes and the Series E Notes, the "Series A-F Notes") will be issued in the
aggregate principal amount of $40,000,000; will be dated the date of issue;
will bear interest from such date at the rate of 8.87% per annum, payable
quarterly on the 15th day of each February, May, August and November in each
year (commencing November 15, 2000) until the principal amount thereof shall
become due and payable and shall bear interest on overdue principal (including
any overdue optional prepayment of principal) and premium, if any, and, to the
extent permitted by law, on any overdue installment of interest at the rate
specified therein after the date due for payment, whether by acceleration or
otherwise, until paid; will be expressed to mature on August 15, 2020; and will
otherwise be substantially in the form attached hereto as Exhibit A-6.
Section 1B. Subsequent Series. Subsequent Series of promissory notes
(collectively, the "Subsequent Notes") may be issued pursuant to Supplemental
Note Purchase Agreements as provided in Section 2B in an aggregate principal
amount not to exceed $70,000,000 and (i) shall be sequentially identified as
"Series G Notes", "Series H Notes", "Series I Notes", et seq.;
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(ii) shall be in the aggregate principal amount; (iii) shall be dated the date;
(iv) shall bear interest from such date at the rate per annum and at the
frequency; (v) shall bear interest on overdue principal (including any overdue
optional prepayment of principal) and premium, if any, and, to the extent
permitted by law, on any overdue installment of interest at the rate; and (vi)
shall be expressed to mature on the date, all as set forth in the Supplemental
Note Purchase Agreement relating thereto and shall otherwise be substantially
in the form attached hereto as Exhibit A-7.
The Series A-F Notes and the Subsequent Notes are herein sometimes collectively
referred to as the "Notes." As used herein, the term "Notes" shall include each
Note delivered pursuant to this Agreement at any Closing Date and each Note
delivered in substitution or exchange for any such Note pursuant hereto.
Interest on the Notes will be computed on the basis of a 360-day year of twelve
30-day months. The Notes are not subject to prepayment or redemption at the
option of the Company prior to their respective expressed maturity dates except
on the terms and conditions and in the amount and with the premium, if any set
forth, or referred to, in Section 4 of this Agreement. The Notes will be
secured by the Security Agreement. The Security Agreement and the Notes, to the
extent secured thereby, are subject to the terms of the Intercreditor
Agreement.
SECTION 2. PURCHASE AND SALE OF NOTES.
Section 2A. Series A-F Notes. The Company hereby agrees to sell to
each Initial Purchaser and, subject to the terms and conditions herein set
forth, each Initial Purchaser agrees to purchase from the Company the aggregate
principal amount of the applicable Series A-F Notes set opposite such Initial
Purchaser's name in the Initial Purchaser Schedule at 100% of the aggregate
principal amount. The sale of the Series A-F Notes shall take place at the
offices of Winston & ▇▇▇▇▇▇, ▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ at
10:00 a.m., Chicago time, at a closing (the "Initial Closing") on August 10,
2000, or such other place and date as shall be agreed upon by the Company and
each Initial Purchaser. At the Initial Closing the Company will deliver to each
Initial Purchaser one or more Series A-F Notes, as applicable, registered in
such Initial Purchaser's name (or in the name of its nominee), evidencing the
aggregate principal amount of such Series A-F Notes to be purchased by said
Initial Purchaser and in the denomination or denominations specified with
respect to such Initial Purchaser in the Initial Purchaser Schedule against
payment of the purchase price thereof by transfer of immediately available
funds for credit to the Company's account on the date of the Initial Closing
(the "Initial Closing Date") (as specified in a notice to each Initial
Purchaser at least three Business Days prior to the Initial Closing Date).
Section 2B. Subsequent Notes. At any time, and from time to time,
during the 365 day period immediately following the Initial Closing Date, the
Company and one or more Eligible Purchasers may enter into an agreement
substantially in the form of the Supplemental Note Purchase Agreement attached
hereto as Exhibit B (a "Supplemental Note Purchase Agreement") in which the
Company shall agree to sell to each such Eligible Purchaser named on the
Supplemental Purchaser Schedule attached thereto (collectively, the
"Supplemental Purchasers") and, subject to the terms and conditions herein and
therein set forth, each such Supplemental Purchaser shall agree to purchase
from the Company the aggregate principal amount of the Series of Subsequent
Notes (which series shall aggregate not less than $5,000,000) described in
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said Supplemental Note Purchase Agreement and set opposite such Supplemental
Purchaser's name in the Supplemental Purchaser Schedule attached thereto at the
price and otherwise under the terms set forth in said Supplemental Note
Purchase Agreement. The sale of the Subsequent Notes of the Series described in
said Supplemental Note Purchase Agreement will take place at the location, date
and time set forth therein at a closing (a "Supplemental Closing"). At such
Supplemental Closing the Company will deliver to each such Supplemental
Purchaser one or more Notes of the Series to be purchased by said Supplemental
Purchaser registered in such Supplemental Purchaser's name (or in the name of
its nominee), evidencing the aggregate principal amount of Notes of such Series
to be purchased by said Supplemental Purchaser and in the denomination or
denominations specified with respect to such Supplemental Purchaser in such
Supplemental Purchaser Schedule against payment of the purchase price thereof
by transfer of immediately available funds for credit to the Company's account
on the date of such Supplemental Closing (a "Supplemental Closing Date") (as
specified in a notice to each such Supplemental Purchaser at least three
Business Days prior to such Supplemental Closing Date).
SECTION 3. CONDITIONS OF CLOSINGS.
The obligation of each Initial Purchaser and Supplemental Purchaser to
purchase and pay for the Notes to be purchased by such Purchaser hereunder on a
Closing Date is subject to the satisfaction, on or before such Closing Date, of
the following conditions:
Section 3A. Opinion of Purchasers' Special Counsel. Such Purchaser
shall have received from Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, who are
acting as special counsel for the Purchasers in connection with the
transactions contemplated by this Agreement, a favorable opinion satisfactory
to such Purchaser.
Section 3B. Other Opinions of Counsel. Such Purchaser shall have
received favorable opinions from Winston & ▇▇▇▇▇▇, special counsel for the
Company, and Doerner, Saunders, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, L.L.P., counsel for the
Company, satisfactory to such Purchaser and substantially in the form of
Exhibits C-1 and C-2, respectively, attached hereto. The Collateral Agent and
the Purchasers shall have received favorable opinions from ▇▇▇▇▇▇▇ & ▇▇▇▇▇
L.L.P. and Doerner, Saunders, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, L.L.P., satisfactory to such
Purchaser and the Collateral Agent and substantially in the form of Exhibits
C-3 and C-4, respectively, attached hereto. The Company hereby directs each of
its counsel referred to in this Section 3B to deliver to the Purchasers such
opinions to be delivered by it pursuant to this Section 3B and authorizes the
Purchasers to rely thereon.
Section 3C. Legal Investment. On such Closing Date, the purchase of
Notes to be purchased on said date shall be permitted by the laws and
regulations of each jurisdiction to which each Purchaser's investments are
subject, but without recourse to provisions (such as section 1404(b) or
1405(a)(8) of the New York Insurance Law) permitting limited investments by
insurance companies in securities not otherwise legally eligible for
investment. If requested by a Purchaser by adequate prior written request to
the Company, such Purchaser shall have received an Officer's Certificate of the
Company certifying as to such matters of fact as such Purchaser may reasonably
specify to enable such Purchaser to determine whether such purchase is so
permitted.
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Section 3D. Representations and Warranties; No Default. (i) The
representations and warranties of the Company contained in this Agreement
(including, without limitation, Section 8) and the Parity Debt Designation and
those otherwise made in writing by or on behalf of the Company pursuant to this
Agreement and the Parity Debt Designation shall be true and correct when made
and on and as of such Closing Date, except to the extent (a) of changes caused
by the transactions herein contemplated and (b) that such representations and
warranties expressly relate to an earlier time or date, in which case such
representations and warranties shall have been true and correct as of such
earlier time or date.
(ii) There shall exist on such Closing Date, immediately
after giving effect to the issuance and sale of the Notes to be sold on such
date, no Default or Event of Default hereunder or under the Financing Documents
or default by the Company under the Partnership Agreement.
(iii) The Company shall have delivered to such Purchaser an
Officer's Certificate, dated such Closing Date, with respect to clauses (i) and
(ii) hereto.
Section 3E. Purchase Permitted by Applicable Laws. The purchase of and
payment for the Notes to be purchased by such Purchaser on such Closing Date on
the terms and conditions herein, and in the applicable Supplemental Note
Purchase Agreement, provided (including the use of the proceeds of such Notes
by Company) shall not violate any applicable law or governmental regulation
(including, without limitation, Section 5 of the Securities Act or Regulation
T, U or X of the Board of Governors of the Federal Reserve System) and shall
not subject such Purchaser to any tax, penalty, liability or other onerous
condition under or pursuant to any applicable law or governmental regulation,
and such Purchaser shall have received such certificates or other evidence as
it may request to establish compliance with this condition.
Section 3F. Performance; Proceedings. (i) The Company shall have
performed and complied in all material respects with all agreements and
covenants contained in this Agreement (including the applicable Supplemental
Note Purchase Agreement) required to be performed or complied with by it prior
to or at such Closing.
(ii) All proceedings taken or to be taken in connection with
the transactions contemplated hereby and all documents incident thereto shall
be satisfactory in substance and form to such Purchaser, and such Purchaser
shall have received all such additional certificates and all such counterpart
originals or certified or other copies of such documents as it may reasonably
request.
Section 3G. Sale of Notes to Other Purchasers. The Company shall have
sold to the other Purchasers, if any, participating in such Closing the Notes
to be purchased by them at such Closing and shall have received payment in full
therefor.
Section 3H. Designation of Agreement as Additional Parity Debt
Agreement. The Company shall have caused the Agreement to constitute an
"Additional Parity Debt Agreement" and the Notes to constitute "Additional
Parity Debt" all under the Intercreditor Agreement.
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Section 3I. Payment of Closing Fees. The Company shall have paid the
fees and disbursements of the Purchasers' special counsel required by Section
11B to be paid by the Company on such Closing Date.
Section 3J. Private Placement Number. The Company shall have obtained,
for the Series of Notes being issued on such Closing Date, a Private Placement
Number issued by Standard & Poor's CUSIP Service Bureau (in cooperation with
the Securities Valuation Office of the National Association of Insurance
Commissioners).
Section 3K. Insurance. Such Purchaser shall have received from the
Company a summary description of all insurance policies, fidelity bonds or
other insurance service contracts providing coverage for the Business.
Section 3L. Reliance Letter From U.S. Propane Counsel. Such Purchaser
shall have received a letter from ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P., counsel to U.S.
Propane, addressed to the Purchasers and accompanied by the opinion of such
counsel delivered in connection with the U.S. Propane Acquisition, to the
effect that the Purchasers are entitled to rely on such opinion as if such
opinion was originally addressed to the Purchasers.
Section 3M. Conditions to the Initial Closing. Simultaneously with the
Initial Closing:
(i) The U.S. Propane Acquisition shall be consummated in
conformity with the Contribution Agreement (the terms of which shall not be
waived or amended on or prior to the closing thereof in any manner which is
materially adverse to the Purchasers without the consent of the Required
Holders) and such Purchaser shall receive satisfactory evidence of the
foregoing.
(ii) Each of the Fourth Amendment Agreement and the Credit
Agreement Amendment (i) shall be in the form satisfactory to such Purchaser,
(ii) shall be duly executed and delivered by the parties thereto and (iii)
shall constitute the legal, valid and binding obligation of the parties thereto
enforceable against them in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, moratorium or similar
laws affecting creditors' rights generally and general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(iii) The Company shall deliver to the Collateral Agent the
Certificates and Stock Powers with respect to the Capital Stock of Subsidiaries
acquired by the Company as the result of the U.S. Propane Acquisition.
SECTION 4. PREPAYMENTS.
The Notes shall be subject to prepayment only (a) pursuant to the
required prepayments, if any, specified in Section 4A (with respect to the
Series A-F Notes), the applicable Supplemental Note Purchase Agreement (with
respect to each Series of Subsequent Notes), and Section 4C (with respect to
all Notes without regard to Series); and (b) pursuant to the optional
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prepayments permitted by Section 4B (with respect to all Notes without regard
to Series but subject to Section 4E).
Section 4A. Series A-F Required Prepayments; Maturity.
(i) Until the Series A Notes shall be paid in full, the Company shall
apply to the prepayment of the Series A Notes, without premium, the designated
amounts of principal set forth below (or, if less, the principal amount of the
Series A Notes as shall at the time be outstanding) on August 15 in each of the
years set forth below, together with interest thereon to the prepayment dates,
provided, however, that if the Company shall prepay all or any portion of the
Notes pursuant to Section 4B or 4C, or acquire any Series A Notes pursuant to
the provisions of Section 4H, each of the principal amount payable at maturity
and the principal amount of each required prepayment of the Series A Notes
becoming due under this Section 4A on and after the date of such prepayment or
purchase shall be reduced in the same proportion as the aggregate unpaid
principal amount of the Series A Notes is reduced as a result of such
prepayment or acquisition:
Principal Amount Year of
to be Prepaid Prepayment
---------------- ----------
$3,200,000 2003
3,200,000 2004
3,200,000 2005
3,200,000 2006
3,200,000 2007
The remaining outstanding principal amount of the Series A Notes, together with
all interest accrued on the Series A Notes, shall become due and payable on
August 15, 2007.
(ii) Until the Series B Notes shall be paid in full, the Company shall
apply to the prepayment of the Series B Notes, without premium, the designated
amounts of principal set forth below (or, if less, the principal amount of the
Series B Notes as shall at the time be outstanding) on August 15 in each of the
years set forth below, together with interest thereon to the prepayment dates,
provided, however, that if the Company shall prepay all or any portion of the
Notes pursuant to Section 4B or 4C, or acquire any Series B Notes pursuant to
the provisions of Section 4H, each of the principal amount payable at maturity
and the principal amount of each required prepayment of the Series B Notes
becoming due under this Section 4A on and after the date of such prepayment or
purchase shall be reduced in the same proportion as the aggregate unpaid
principal amount of the Series B Notes is reduced as a result of such
prepayment or acquisition:
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Principal Amount Year of
to be Prepaid Prepayment
---------------- ----------
$4,571,429 2004
4,571,429 2005
4,571,429 2006
4,571,429 2007
4,571,429 2008
4,571,429 2009
4,571,426 2010
The remaining outstanding principal amount of the Series B Notes, together with
all interest accrued on the Series B Notes, shall become due and payable on
August 15, 2010.
(iii) Until the Series C Notes shall be paid in full, the Company
shall apply to the prepayment of the Series C Notes, without premium, the
designated amounts of principal set forth below (or, if less, the principal
amount of the Series C Notes as shall at the time be outstanding) on August 15
in each of the years set forth below, together with interest thereon to the
prepayment dates, provided, however, that if the Company shall prepay all or
any portion of the Notes pursuant to Section 4B or 4C, or acquire any Series C
Notes pursuant to the provisions of Section 4H, each of the principal amount
payable at maturity and the principal amount of each required prepayment of the
Series C Notes becoming due under this Section 4A on and after the date of such
prepayment or purchase shall be reduced in the same proportion as the aggregate
unpaid principal amount of the Series C Notes is reduced as a result of such
prepayment or acquisition:
Principal Amount Year of
to be Prepaid Prepayment
---------------- ----------
$5,750,000 2006
5,750,000 2007
4,000,000 2008
5,750,000 2009
5,750,000 2010
The remaining outstanding principal amount of the Series C Notes, together with
all interest accrued on the Series C Notes, shall become due and payable on
August 15, 2010.
(iv) Until the Series D Notes shall be paid in full, the Company shall
apply to the prepayment of the Series D Notes, without premium, the designated
amounts of principal set forth below (or, if less, the principal amount of the
Series D Notes as shall at the time be outstanding) on August 15 in each of the
years set forth below, together with interest thereon to the prepayment dates,
provided, however, that if the Company shall prepay all or any portion of the
Notes pursuant to Section 4B or 4C, or acquire any Series D Notes pursuant to
the provisions
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of Section 4H, each of the principal amount payable at maturity and the
principal amount of each required prepayment of the Series D Notes becoming due
under this Section 4A on and after the date of such prepayment or purchase
shall be reduced in the same proportion as the aggregate unpaid principal
amount of the Series D Notes is reduced as a result of such prepayment or
acquisition:
Principal Amount Year of
to be Prepaid Prepayment
---------------- ----------
$12,450,000 2008
12,450,000 2009
7,700,000 2010
12,450,000 2011
12,950,000 2012
The remaining outstanding principal amount of the Series D Notes, together with
all interest accrued on the Series D Notes, shall become due and payable on
August 15, 2012.
(v) Until the Series E Notes shall be paid in full, the Company shall
apply to the prepayment of the Series E Notes, without premium, the designated
amounts of principal set forth below (or, if less, the principal amount of the
Series E Notes as shall at the time be outstanding) on August 15 in each of the
years set forth below, together with interest thereon to the prepayment dates,
provided, however, that if the Company shall prepay all or any portion of the
Notes pursuant to Section 4B or 4C, or acquire any Series E Notes pursuant to
the provisions of Section 4H, each of the principal amount payable at maturity
and the principal amount of each required prepayment of the Series E Notes
becoming due under this Section 4A on and after the date of such prepayment or
purchase shall be reduced in the same proportion as the aggregate unpaid
principal amount of the Series E Notes is reduced as a result of such
prepayment or acquisition:
Principal Amount Year of
to be Prepaid Prepayment
---------------- ----------
$1,000,000 2009
1,000,000 2010
1,000,000 2011
1,000,000 2012
1,000,000 2013
1,000,000 2014
1,000,000 2015
The remaining outstanding principal amount of the Series E Notes, together with
all interest accrued on the Series E Notes, shall become due and payable on
August 15, 2015.
(vi) Until the Series F Notes shall be paid in full, the Company shall
apply to the prepayment of the Series F Notes, without premium, the designated
amounts of principal set
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forth below (or, if less, the principal amount of the Series F Notes as shall
at the time be outstanding) on August 15 in each of the years set forth below,
together with interest thereon to the prepayment dates, provided, however, that
if the Company shall prepay all or any portion of the Notes pursuant to Section
4B or 4C, or acquire any Series F Notes pursuant to the provisions of Section
4H, each of the principal amount payable at maturity and the principal amount
of each required prepayment of the Series F Notes becoming due under this
Section 4A on and after the date of such prepayment or purchase shall be
reduced in the same proportion as the aggregate unpaid principal amount of the
Series F Notes is reduced as a result of such prepayment or acquisition:
Principal Amount Year of
to be Prepaid Prepayment
---------------- ----------
$3,636,364 2010
3,636,364 2011
3,636,364 2012
3,636,364 2013
3,636,364 2014
3,636,364 2015
3,636,364 2016
3,636,363 2017
3,636,363 2018
3,636,363 2019
3,636,363 2020
The remaining outstanding principal amount of the Series F Notes, together with
all interest accrued on the Series F Notes, shall become due and payable on
August 15, 2020.
Section 4B. Optional Prepayment. All Notes shall be subject to
prepayment, in whole at any time or from time to time in part (in multiples of
$5,000,000 or, if less than $5,000,000, the principal amount of the Notes as
shall be outstanding at the time of such partial prepayment), at the option of
the Company, at 100% of the principal amount so prepaid plus interest thereon
to the prepayment date and the Yield Maintenance Amount, if any, with respect
to each Note.
Section 4C. Contingent Prepayments on Disposition, Loss of Assets or
Merger or Change of Control. (i) If at any time the Company or any of its
Subsidiaries disposes of assets or issues or sells Capital Stock of any
Subsidiary with the result that there are Excess Sale Proceeds, and the Company
does not apply such Excess Sale Proceeds in the manner described in Section
6G(iii)(c)(II)(x), the Company will offer to prepay (at the price specified
below and upon notice as provided in Section 4D) a principal amount of the
outstanding Notes equal to the Allocable Proceeds.
(ii) In the event of any damage to, or destruction,
condemnation or other taking of, all or any portion of the properties or assets
of the Company or any of its Subsidiaries, to the extent that the Company or
any such Subsidiary receives insurance or condemnation proceeds with the result
that Unutilized Taking Proceeds exceed $2,500,000 in respect of any
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fiscal year (such excess amount being herein called "Excess Taking Proceeds"),
the Company will offer to prepay (at the price specified in clause (iv) of this
Section 4C below and upon notice as provided in Section 4D) a principal amount
of the outstanding Notes equal to the Allocable Proceeds.
(iii) (a) If at any time any Responsible Officer has
knowledge of the occurrence of any Control Event, the Company will give notice
as provided in Section 4D of such Control Event to each holder of Notes. Such
notice shall contain and constitute an offer to prepay all, but not less than
all, of the Notes held by each holder. Upon the occurrence of a Control Event,
the Company will not take any voluntary action that consummates or finalizes
the Change of Control resulting from such Control Event unless
contemporaneously with such action, the Company prepays all Notes required to
be prepaid in accordance with this Section 4C and Section 4D.
(b) The obligation of the Company to prepay Notes
pursuant to the offer required by paragraph (a) of this clause (iii) and
accepted in accordance with Section 4D is subject to the consummation of the
Change of Control in respect of which any such offer and acceptance shall have
been made. In the event that such Change of Control does not occur on or before
the proposed prepayment date in respect thereof, the prepayment shall be
deferred until and shall be made on the date on which such Change of Control
occurs. The Company shall keep each holder of Notes reasonably and timely
informed of (I) any such deferral of the date of prepayment, (II) the date on
which such Change of Control and the prepayment are expected to occur, and
(III) any determination by the Company that efforts to effect such resulting
Change of Control have ceased or been abandoned (in which case any offer and
acceptance made pursuant to this Section 4C in respect of such Change of
Control shall be deemed rescinded).
(iv) Each such offer to prepay the Notes pursuant to Section
4C(i) or 4C(ii) shall be made (a) to the extent such prepayment represents all
or a portion of an amount equal to $7,500,000 in the aggregate in respect of
any fiscal year or $12,500,000 in the aggregate for all fiscal years of
unapplied Excess Sale Proceeds and Excess Taking Proceeds (such unapplied
amounts being herein called, "Excess Proceeds"), at a price equal to 100% of
the principal amount of the Notes to be prepaid, plus interest thereon to the
prepayment date, and (b) to the extent such prepayment represents such Excess
Proceeds in excess of the $7,500,000 in the aggregate for any fiscal year or
$12,500,000 in the aggregate for all fiscal years, at a price equal to 100% of
the principal amount of the Notes to be prepaid, plus interest thereon to the
prepayment date plus the Yield-Maintenance Amount, if any, thereon.
(v) Each offer to prepay the Notes pursuant to Section
4C(iii) shall be made at a price equal to the principal amount of the Notes to
be prepaid, plus interest thereon to the prepayment date plus a premium of 1%
of the principal amount to be so prepaid.
Section 4D. Prepayment Procedure for Contingent Prepayments. (i) If at
any time there are Excess Proceeds, and the Company is required to offer to
prepay the Notes with such Excess Proceeds pursuant to clause (i) or (ii) of
Section 4C, the Company will give written notice as provided in Section 11I
(which shall be in the form of an Officer's Certificate) to the holders of the
Notes not later than twelve months after the date of the applicable Asset Sale
or
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the end of the twelve month period following receipt of the applicable
Unutilized Taking Proceeds, as the case may be, stating that any holder failing
to elect not to accept the offer shall be deemed to have accepted such offer
and (a) setting forth in reasonable detail all calculations required to
determine the amount of Excess Proceeds and the Yield-Maintenance Amount, if
any, (b) setting forth the aggregate amount of the Allocable Proceeds and the
amount of the Allocable Proceeds which is allocable to each Note, determined by
applying the Allocable Proceeds pro rata among all Notes outstanding on the
date such prepayment is to be made according to the aggregate then unpaid
amounts of the Notes, and in reasonable detail the calculations used in
determining such amounts, and (c) stating that the Company irrevocably offers
to prepay on the date specified in such notice, which shall not be less than 25
nor more than 45 days after the date of such notice, a principal amount of each
outstanding Note equal to the amount of Allocable Proceeds allocated to such
Note as described in paragraph (b) above, plus such Note's share of the
Allocable Proceeds allocable to any other Note the holder of which elects on a
timely basis not to accept the Company's offer (collectively, the
"Non-Accepting Holders"), all in accordance with the procedures set forth in
this Section 4D. Such notice shall also indicate that any Accepting Holder that
fails to elect not to accept the Pro Rata Option shall be deemed to have
accepted such option as set forth below.
(ii) If at any time the Company is required to offer to
prepay the Notes following the occurrence of a Control Event which could result
in a Change of Control, the Company will give written notice as provided in
Section 11I (which shall be in the form of an Officer's Certificate) to the
holders of the Notes not later than ten Business Days following such Control
Event, stating that any holder failing to elect not to accept the offer shall
be deemed to have accepted such offer and (a) setting forth in reasonable
detail the facts and circumstances underlying such Control Event known to it,
and (b) stating that the Company irrevocably offers to prepay on the date
specified in such notice, which shall be not less than 25 nor more than 45 days
after the date of such notice, at the price specified in clause (v) of Section
4C, each outstanding Note, all in accordance with the procedures set forth in
this Section 4D.
(iii) Each holder of a Note electing not to accept an offer
to prepay given pursuant to this Section 4D shall make such election by notice
delivered to the Company at least 10 days prior to the date of prepayment
specified in the notice given by the Company pursuant to clause (i) or (ii) of
this Section 4D. Each other holder of a Note (collectively, the "Accepting
Holders") shall be deemed to accept the Company's offer with respect to
prepayment of such Note. In the case of a notice given by the Company pursuant
to clause (i) of this Section each Accepting Holder shall be deemed to have
accepted the Company's offer to the extent of its Allocable Proceeds and shall
be deemed to have accepted an agreement (the "Pro Rata Option") to have
prepaid, in addition to the Allocable Proceeds allocable to such Note (up to
the total Allocable Proceeds), all or any part of the balance of the principal
amount of such Note using the Allocable Proceeds that would have been paid to
the Non-Accepting Holders; provided that any Accepting Holder may elect not to
agree to the Pro Rata Option by notice delivered to the Company at least 5 days
prior to the date of prepayment specified in the notice given by the Company
pursuant to clause (i) of this Section 4D.
(iv) Upon receipt of all timely notices from Non-Accepting
Holders and Accepting Holders pursuant to clause (iii) of this Section 4D, the
Company shall give written
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notice as provided in Section 11I (which shall be in the form of an Officer's
Certificate) to the holders of the Notes setting forth (a) the names of each
Accepting Holder and each Non-Accepting Holder, (b) the principal amounts of
the Notes of such Accepting Holders and Non-Accepting Holders affected by the
Company's offer of prepayment, (c) in the case of a notice given by the Company
pursuant to clause (i) of this Section 4D, if there shall be any Allocable
Proceeds remaining in addition to the amounts so to be prepaid, the principal
amounts of the Notes as to which such Accepting Holders shall have exercised
their Pro Rata Options together with a calculation of each Accepting Holder's
Pro Rata Option in accordance with clause (v) of this Section 4D and (d) after
giving effect to the prepayment contemplated by clause (v) of this Section 4D
in respect of such offer, the reduced amount of each required payment
thereafter becoming due with respect to the Notes under Section 4A and upon the
maturity thereof, specifying how each such amount was determined, and
certifying that such reduction has been computed in accordance with such
Section.
(v) Upon receipt of all timely notices from Non-Accepting
Holders and Accepting Holders pursuant to clause (iii) of this Section 4D, the
Company shall, in the case of a notice given by the Company pursuant to clause
(i) of this Section 4D, allocate that portion of the Allocable Proceeds that
had been allocated to the Notes of such Non-Accepting Holders among the Notes
of Accepting Holders in proportion to the respective Allocable Proceeds
allocable to the Notes of Accepting Holders (after giving effect to any Pro
Rata Option). Where the portion of the Allocable Proceeds thus allocated to the
Note of an Accepting Holder would exceed the maximum principal amount of such
Note which such Accepting Holder has agreed to have prepaid (including, without
limitation, pursuant to a Pro Rata Option), such excess shall be allocated
among the Notes of Accepting Holders who have agreed to accept prepayments
(including, without limitation, pursuant to a Pro Rata Option) in amounts which
still exceed the amount of prepayments previously allocated to them pursuant to
this Section 4D in proportion to the respective Allocable Proceeds allocable to
the Notes of such Accepting Holders (after giving effect to any Pro Rata
Option); and such allocation shall be repeated as many times as shall be
necessary until (a) the Allocable Proceeds have been fully allocated or (b) it
is no longer possible to allocate the Allocable Proceeds without exceeding the
maximum principal amounts of Notes which all Accepting Holders respectively
have agreed to have prepaid (including, without limitation, pursuant to all the
Pro Rata Options).
(vi) The principal amount of any Notes with respect to which
an offer to prepay pursuant to this Section 4D has been made and not rejected
shall become due and payable on the date specified in the notice of such offer
given by the Company pursuant to clause (i) or (ii), as the case may be, of
this Section 4D. In the case of a notice given by the Company pursuant to
clause (i) of this Section 4D, it is understood that all Allocable Proceeds not
applied to the prepayment of the Notes or to the payment of Parity Debt
pursuant to Section 4C and this Section 4D shall constitute amounts included
within the definition of "Unused Proceeds Reserve."
(vii) Each holder of a Note shall receive, not more than two
Business Days prior to the date scheduled for any prepayment pursuant to this
Section 4D, an Officer's Certificate (i) certifying that the conditions of this
Section 4D have been fulfilled with respect to such prepayment and specifying
the particulars of such fulfillment, including, without limitation,
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in reasonable detail the calculations used in computing the amount of the
prepayment in respect of the Notes and the appropriate Premium (together with,
in the case of a calculation of any Yield-Maintenance Amount, copies of the
source of market data by reference to which the Reinvestment Yield was
determined) with respect thereto, and (ii) in the case of any such prepayment
that is a partial prepayment of the Notes setting forth (a) the principal
amount to be prepaid with respect to each of the Notes and specifying how each
such amount was determined and (b) after giving effect to such partial
prepayment the reduced amount to be prepaid with respect to each required
payment thereafter becoming due with respect to the Notes under Section 4A and
upon the maturity thereof, specifying how each such amount was determined, and
certifying that such reduction has been computed in accordance with such
Section. If for any reason the holder of a Note so to be prepaid by written
notice to the Company objects to such calculation of the Yield-Maintenance
Amount, the Company shall notify all other holders of Notes so to be prepaid of
such objection. If, after any such notice and objection, a calculation of the
Yield-Maintenance Amount shall be approved by the Required Holders of the Notes
to be prepaid and specified in a written notice provided to the Company and the
holders of such Notes, such calculation shall be final and binding upon the
Company and the holders of the Notes absent manifest error.
Section 4E. Allocation of Section 4B Payments among Series. Upon any
partial prepayment of the Notes pursuant to Section 4B,
(x) during any period in which neither a Default, an Event of
Default nor Debt Rating Event shall exist, the Company may allocate
the principal amount to be prepaid among the various Series of then
outstanding Notes in any manner which it, in its sole discretion, may
elect, and
(y) during any period in which a Default, an Event of Default
or a Debt Rating Event shall exist, the principal amount to be prepaid
shall be applied on all outstanding Notes, without regard to Series,
ratably in accordance with the unpaid principal amounts thereof.
Section 4F. Allocation of Partial Payments within a Series. Upon any
partial prepayment of the Notes of any Series, the principal amount so prepaid
with respect to such Series shall be allocated to all Notes of such Series at
the time outstanding in proportion to the respective outstanding principal
amounts thereof, provided, that in the case of any prepayment of less than all
of the Notes pursuant to Section 4C, the principal amount of the Notes to be
prepaid will be allocable to the Notes to be prepaid as provided in Section 4C.
Section 4G. Notice of Optional Prepayment. The Company shall give the
holder of each Note of a Series then to be prepaid irrevocable written notice
as provided in Section 11I of any prepayment pursuant to Section 4B not less
than 30 days and not more than 60 days prior to the prepayment date, stating
that such prepayment is to be made pursuant to Section 4B and specifying (i)
such prepayment date, (ii) the principal amount of the Notes of such Series,
and of the Notes of such Series held by such holder, to be prepaid on such
date, and (iii) a calculation of the estimated Yield-Maintenance Amount, if
any, with respect to such prepayment. Notice of prepayment having been given as
aforesaid, the principal amount of the Notes of such Series
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specified in such notice, together with interest thereon to the prepayment
date, and the Yield-Maintenance Amount with respect thereto, shall become due
and payable on such prepayment date. The Company shall, on or before the day on
which it gives written notice of any prepayment pursuant to Section 4B, give
telephonic notice (confirmed in writing by facsimile transmission or overnight
courier) of the principal amount of the Notes of such Series to be prepaid and
the prepayment date to each holder which shall have designated a recipient of
such notices in the Purchaser Schedule applicable to such Series or by notice
in writing to the Company. In addition, each holder of a Note of such Series
shall receive, at least 2 Business Days prior to the date scheduled for any
such prepayment, an Officer's Certificate (i) certifying that the conditions of
Section 4B have been fulfilled and specifying the particulars, including,
without limitation, a calculation in reasonable detail of the Yield-Maintenance
Amount with attached copies of the source of market data by reference to which
the Reinvestment Yield was determined, of such fulfillment and (ii) in the case
of any such prepayment that is a partial prepayment of the Notes of such
Series, setting forth (a) the principal amount to be prepaid with respect to
each of the Notes of such Series and specifying how each such amount was
determined, and (b) after giving effect to such partial prepayment the reduced
amount to be prepaid with respect to each required payment thereafter becoming
due with respect to the Notes of such Series under Section 4A, or the
Supplemental Note Purchase Agreement pursuant to which the Notes of such Series
were issued, and upon the maturity thereof, specifying how each such amount was
determined, and certifying that such reduction has been computed in accordance
with such Section. If for any reason the holder of a Note so to be prepaid, by
written notice to the Company, objects to such calculation of the
Yield-Maintenance Amount, the Company shall notify all other holders of Notes
of such Series so to be prepaid of such objection. If after any such notice and
objection, a calculation of the Yield-Maintenance Amount shall be approved by
the holder or holders of at least 51% of the aggregate principal amount of the
Notes of such Series at the time outstanding and specified in a written notice
provided to the Company and the other holders of the Notes of such Series, such
calculation shall be final and binding upon the Company and the holders of the
Notes of such Series absent manifest error.
Section 4H. Retirement of Notes. The Company shall not, and shall not
permit any of its Subsidiaries or Affiliates to, prepay or otherwise retire in
whole or in part prior to their stated final maturity (other than by prepayment
pursuant to Section 4A, 4B, 4C or the provisions of a Supplemental Note
Purchase Agreement or upon acceleration of such final maturity pursuant to
Section 7A), or purchase or otherwise acquire, directly or indirectly, Notes of
any Series held by any holder, unless the Company or such Subsidiary or
Affiliate shall have offered to prepay or otherwise retire or purchase or
otherwise acquire, as the case may be, the same proportion of the aggregate
principal amount of Notes of such Series held by each other holder of Notes of
such Series at the time outstanding, upon the same terms and conditions and
such offer shall remain open for a period of at least 20 Business Days;
provided that (x) neither the Company nor any of its Affiliates or Subsidiaries
shall make any such offer to prepay, redeem, retire, purchase or acquire Notes
of any Series at a price of less than 100% of the principal amount thereof and
(y) at the time of such offer and purchase no Default or Event of Default shall
have occurred and be continuing.
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Section 4I. Notes Not to be Reissued. Any Notes prepaid or otherwise
retired or purchased or otherwise acquired by the Company or any of its
Subsidiaries or Affiliates shall not be deemed to be outstanding for any
purpose under this Agreement and shall not be reissued.
SECTION 5. AFFIRMATIVE COVENANTS.
The Company hereby covenants and agrees that, from the Initial Closing
and thereafter so long as any of the Notes remain unpaid, it will perform and
comply with the terms and provisions of this Section 5.
Section 5A. Financial Statements. The Company will maintain, and will
cause each of its Subsidiaries to maintain, a system of accounting established
and administered in accordance with GAAP. The Company covenants that it will
deliver to each Purchaser, so long as such Purchaser or its nominee shall be
the holder of any Note, and to each other holder:
(i) as soon as practicable and in any event within 50 days
after the end of each quarterly period in each fiscal year, consolidated
statements of income, partners' capital and cash flows of the Company and its
Subsidiaries for such quarterly period and (in the case of the second and third
quarterly periods) for the period from the beginning of the current fiscal year
to the end of such quarterly period, and consolidated balance sheets of the
Company and its Subsidiaries as at the end of such quarterly period, setting
forth in each case, in comparative form figures for the corresponding period in
the preceding fiscal year, all in reasonable detail and satisfactory in form to
the Required Holder(s) and certified by an authorized financial officer of the
Company as presenting fairly, in all material respects, the information
contained therein (except for the absence of footnotes and subject to changes
resulting from normal year-end adjustments), in accordance with GAAP; provided,
however, that at any time when the Master Partnership shall be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act delivery
within the time period specified above of copies of the Quarterly Report on
Form 10-Q of the Master Partnership for such quarterly period filed with the
Commission shall be deemed to satisfy the requirements of this clause (i) if
(x) the Consolidated Net Income of the Company and its Subsidiaries accounts
for at least 95% of the net income of the Master Partnership for such quarterly
period, and (y) all such statements required to be delivered pursuant to this
clause (i) with respect to the Company and its Subsidiaries are either included
in such Form 10-Q or delivered separately by the Company together with such
Form 10-Q;
(ii) as soon as practical and in any event within 95 days
after the end of each fiscal year, consolidated statements of income and cash
flows and a consolidated statement of partners' capital (or stockholders'
equity, as applicable) of the Company and its Subsidiaries for such year, and
consolidated balance sheets of the Company and its Subsidiaries, as at the end
of such year, setting forth in each case, in comparative form corresponding
consolidated figures from the preceding annual audit, all in reasonable detail
and reported on by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, or other independent public accountants
of recognized national standing selected by the Company whose report shall be
without limitation as to the scope of the audit (provided that such report
shall not include with the scope of the audit the consolidating statements, if
any, required by the final proviso of this clause (ii)); provided, however,
that at any time when the Master Partnership shall be subject to the reporting
requirements of Section 13 or 15(d) of the Exchange
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Act delivery within the time period specified above of copies of the Annual
Report on Form 10-K of the Master Partnership for such fiscal year prepared in
compliance with the requirements therefor and filed with the Commission shall
be deemed to satisfy the requirements of this clause (ii) if (x) the
Consolidated Net Income of the Company and its Subsidiaries accounts for at
least 95% of the net income of the Master Partnership for such fiscal year, and
(y) all such statements required to be delivered pursuant to this clause (ii)
with respect to the Company and its Subsidiaries are either included in such
Form 10-K or delivered separately by the Company together with such Form 10-K;
and, provided further, however, that at any time the Total Assets of the
Company and its Subsidiaries account for less than 85% of the Total Assets of
the Master Partnership for any fiscal year, then the statements and balance
sheet required to be delivered with respect to the Company and its Subsidiaries
in this clause (ii) for such fiscal year shall be both consolidated and
consolidating, and such consolidating statements shall be certified by an
authorized financial officer of the Company as presenting fairly, in all
material respects, the information contained therein, in accordance with GAAP
(except for the absence of footnotes);
(iii) promptly upon receipt thereof by the Company, copies of
all reports submitted to the Company by independent public accountants in
connection with each special, annual or interim audit of the books of the
Company or any Subsidiary thereof made by such accountants, including without
limitation the concurrent letter submitted by each such accountant to
management in connection with their annual audit;
(iv) promptly upon transmission thereof, copies of (a) all
financial statements, proxy statements, notices and reports as the Company or
the Master Partnership shall send or make available to the public holders of
Units of the Master Partnership, (b) all registration statements (without
exhibits), all prospectuses and all reports which the Company or the Master
Partnership files with the Commission (or any governmental body or agency
succeeding to the functions of the Commission), (c) all press releases and
other similar written statements made available by the Company or the Master
Partnership to the public concerning material developments in the business of
the Company or the Master Partnership, as the case may be, and (d) all reports,
notices and other similar written statements sent or made available by the
Company or the Master Partnership to any holder of its Indebtedness pursuant to
the terms of any agreement, indenture or other instrument evidencing such
Indebtedness, including without limitation the Credit Agreement, except to the
extent the same substantive information is already being provided pursuant to
this Section 5A;
(v) as soon as reasonably practicable, and in any event
within 5 Business Days after a Responsible Officer obtains knowledge that any
Default or Event of Default has occurred, a written statement of such
Responsible Officer setting forth details of such Default or Event of Default
and the action which the Company has taken, is taking and proposes to take with
respect thereto;
(vi) as soon as reasonably practicable, and in any event
within 5 Business Days after a Responsible Officer obtains knowledge of (a) the
occurrence of an adverse development with respect to any litigation or
proceeding involving the Company or any of its Subsidiaries which in the
reasonable judgment of the Company could reasonably be expected to have a
Material Adverse Effect or (b) the commencement of any litigation or proceeding
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involving the Company or any of its Subsidiaries which in the reasonable
judgment of the Company could reasonably be expected to have a Material Adverse
Effect, a written notice of such Responsible Officer describing in reasonable
detail such commencement of, or adverse development with respect to, such
litigation or proceeding;
(vii) as soon as possible after, and in any event within 10
Business Days after any Responsible Officer of the Company or any ERISA
Affiliate knows or has reason to know that any ERISA Event has occurred or is
expected to occur that, alone or together with any other ERISA Events that have
occurred, in the opinion of the principal financial officer of the Company
could reasonably be expected to result in liability of the Company in an
aggregate amount exceeding $2,000,000, a statement setting forth a detailed
description of such ERISA Event and the action, if any, that the Company or any
ERISA Affiliate has taken, is taking or proposes to take or cause to be taken
with respect thereto (together with a copy of any notice, report or other
written communication filed with or given to or received from the PBGC, the
Internal Revenue Service or the Department of Labor with respect to such event
or condition);
(viii) as soon as reasonably practicable, and in any event
within five Business Days after a Responsible Officer obtains knowledge of a
violation or alleged violation of any Environmental Law or the presence or
release of any Hazardous Substance within, on, from, relating to or affecting
any property, which in the reasonable judgment of the Company could reasonably
be expected to have a Material Adverse Effect, notice thereof, and upon
request, copies of relevant documentation;
(ix) together with each delivery of financial information
pursuant to clause (i) or clause (ii) of this Section 5A, a statement setting
forth, together with computations in reasonable detail, the amount of Available
Cash as of the date of the balance sheet contained therein and the amounts of
all Net Proceeds, Excess Sale Proceeds, Unutilized Taking Proceeds and Unused
Proceeds Reserves held by the Company at the end of the applicable quarterly
period or fiscal year, as the case may be;
(x) as soon as reasonably practicable, and in any event
within 5 Business Days after a Responsible Officer obtains knowledge that the
holder of any Note has given any notice to the Company or any Subsidiary
thereof or taken any other action with respect to a claimed Default or Event of
Default under this Agreement or any other Financing Document, or that any
Person has given any notice to the Company or any such Subsidiary or taken any
other action with respect to a claimed default or event or condition of the
type referred to in Section 7A(iii), a written statement of such Responsible
Officer describing such notice or other action in reasonable detail and the
action which the Company has taken, is taking and proposes to take with respect
thereto;
(xi) within 45 days after the end of each calendar year,
commencing with the year ending December 31, 2000, a report prepared by the
Company or its broker or agent (a) setting forth the insurance maintained
pursuant to Section 5I, substantially in the form referred to in Section 3K,
and including, without limitation, the amounts thereof, the names of the
insurers and the property, hazards and risks covered thereby, and certifying
that all premiums with respect to the policies described in such report then
due thereon have been paid and that the same
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are in full force and effect, (b) setting forth all self-insurance maintained
by the Company pursuant to Section 5I and (c) certifying that such insurance or
self insurance complies with the requirements of such Section; provided,
however, that for so long as the Security Agreement remains in full force and
effect, delivery by the Company to the Collateral Agent of the report specified
in Section 5.1(g) of the Security Agreement shall be deemed to satisfy the
requirements of this clause (xi); and
(xii) with reasonable promptness, such other information and
data (financial or other) as from time to time may be reasonably requested by
any holder of Notes.
Together with each delivery of financial statements required by
clauses (i) and (ii) above, the Company will deliver to each holder of Notes an
Officer's Certificate (I) stating that the signers have reviewed the terms of
this Agreement and the other Financing Documents, and have made, or caused to
be made under their supervision, a review in reasonable detail of the
transactions and condition of the Company and its Subsidiaries during the
accounting period covered by such financial statements, and that no Default or
Event of Default has occurred and is continuing, or, if any such Default or
Event of Default then exists, specifying the nature and approximate period of
existence thereof and what action the Company has taken or is taking or
proposes to take with respect thereto, (II) specifying the amount available at
the end of such accounting period for Restricted Payments in compliance with
Section 6F and showing in reasonable detail all calculations required in
arriving at such amount, (III) demonstrating (with computations in reasonable
detail) compliance at the end of such accounting period by the Company and its
Subsidiaries with the provisions of Sections 4C, ▇▇, ▇▇, ▇▇, ▇▇, ▇▇(▇),
▇▇(▇)(▇), ▇▇(▇)(▇), 6G(iii) and 6L, and (IV) if not specified in the related
financial statements being delivered pursuant to clauses (i) and (ii) above,
specifying the aggregate amount of interest paid or accrued by, and aggregate
rental expenses of, the Company and its Subsidiaries, and the aggregate amount
of depreciation, depletion and amortization charged on the books of the Company
and its Subsidiaries, during the fiscal period covered by such financial
statements.
Together with each delivery of financial statements required by clause
(ii) above, the Company will deliver a certificate of such accountants stating
that they have reviewed the terms of this Agreement and the other Financing
Documents and that in making the audit necessary for their report on such
financial statements, they have obtained no knowledge of any Event of Default
or Default, or, if they have obtained knowledge of any Event of Default or
Default, specifying the nature and period of existence thereof. Such
accountants, however, shall not be liable to anyone by reason of their failure
to obtain knowledge of any Event of Default or Default which would not be
disclosed in the course of an audit conducted in accordance with generally
accepted auditing standards.
Section 5B. Information Required by Rule 144A. The Company will, upon
the request of a holder of any Note, provide such holder, and any qualified
institutional buyer designated by such holder, such financial and other
information as such holder may reasonably determine to be necessary in order to
permit compliance with the information requirements of Rule 144A under the
Securities Act in connection with the resale of Notes, except at such times as
the Company is subject to the reporting requirements of Section 13 or 15(d) of
the Exchange Act. For the
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purpose of this Section 5B, the term "qualified institutional buyer" shall have
the meaning specified in Rule 144A under the Securities Act.
Section 5C. Inspection of Property. The Company will permit any Person
designated in writing by any holder of the Notes which is an institutional
investor, at the Company's expense during the continuance of a Default or Event
of Default and otherwise at such holder's expense, to visit and inspect any of
the properties of the Company and its Subsidiaries, to examine the corporate
books and financial records of the Company and its Subsidiaries and make copies
thereof or extracts therefrom and to discuss the affairs, finances and accounts
of any of such partnerships or corporations with the principal officers of the
Company and its independent public accountants, all at such reasonable times
and as often as such holder may reasonably request. The Company hereby
authorizes, and agrees to cause each of its Subsidiaries to authorize, its and
their independent public accountants to discuss with such Person the affairs,
finances and accounts of the Company and its Subsidiaries in accordance with
this Section 5C.
Section 5D. Covenant to Secure Notes Equally. If the Company or any of
its Subsidiaries shall create or assume any Lien upon any of its property or
assets, whether now owned or hereafter acquired, other than Liens permitted by
the provisions of Sections 6C and 6D (unless prior written consent to the
creation or assumption thereof shall have been obtained pursuant to Section
11C), the Company will make or cause to be made effective provision whereby the
Notes will be contemporaneously secured by such Lien equally and ratably with
any and all other Indebtedness thereby secured so long as any such other
Indebtedness shall be so secured (including, without limitation, the provision
of any financial accommodations extended to the holders of such other
Indebtedness in connection with the release of such Lien and/or the sale of any
property subject thereto), it being understood that the provision of such equal
and ratable security shall not constitute a cure or waiver of any related Event
of Default.
Section 5E. Partnership or Corporate Existence, etc.; Compliance with
Laws. (i) Except as otherwise expressly permitted in accordance with Section 6G
or 6J, (a) the Company will at all times preserve and keep in full force and
effect its partnership existence and its status as a partnership not taxable as
a corporation for U.S. federal income tax purposes, (b) the Company will cause
each of its Subsidiaries to keep in full force and effect its partnership or
corporate existence, as the case may be, and (c) the Company will, and will
cause each of its Subsidiaries to, at all times preserve and keep in full force
and effect all of its material rights and franchises; provided, however, that
the partnership or corporate existence of any Subsidiary, and any right or
franchise of the Company or any Subsidiary, may be terminated notwithstanding
this Section 5E if such termination (x) is in the best interest of the Company
and the Subsidiaries, (y) is not disadvantageous to the holders of the Notes in
any material respect and (z) could not reasonably be expected to have a
Material Adverse Effect.
(ii) The Company will, and will cause each of its
Subsidiaries to, at all times comply with all laws, regulations and statutes
(including without limitation any zoning or building ordinances or code or
Environmental Laws) applicable to it except for any failure to so comply which,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
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(iii) The Company will notify the holders of the Notes a
reasonable time prior to the adoption of any amendment to the Partnership
Agreement or the Credit Agreement and will include in that notice a reasonably
detailed description of such amendment and the intended effects thereof.
Section 5F. Payment of Taxes and Claims. The Company will, and will
cause each of its Subsidiaries to, pay all taxes, assessments and other
governmental charges imposed upon it or any of its Subsidiaries, or any of its
or its Subsidiaries' properties or assets or in respect of any of its or any of
its Subsidiaries' franchises, business, income or profits when the same become
due and payable, and all claims (including without limitation claims for labor,
services, materials and supplies) for sums which have become due and payable
and which by law have or might become a Lien upon any of its or any of its
Subsidiaries' properties or assets; provided that no such tax, assessment,
charge or claim need be paid if it is being contested in good faith by
appropriate proceedings promptly initiated and diligently conducted and if such
reserves or other appropriate provision, if any, as shall be required by GAAP
shall have been made therefor and be adequate in the good faith judgment of the
Board of Directors of the General Partner.
Section 5G. Compliance with ERISA. The Company will, and will cause
its Subsidiaries to, comply in all material respects with the provisions of
ERISA and the Code applicable to the Company and its Subsidiaries and their
respective employee benefit programs.
Section 5H. Maintenance and Sufficiency of Properties. The Company
will maintain or cause to be maintained in good repair, working order and
condition, ordinary wear and tear excepted, all properties used in the business
of the Company and its Subsidiaries and from time to time will make or cause to
be made all appropriate repairs, renewals and replacements thereof, all to the
extent necessary to avoid a Material Adverse Effect.
(i) The Company will maintain and will cause to be maintained
as employees of the Company and its Subsidiaries such number of individuals,
having appropriate skills, as may be necessary from time to time to sustain
continuous operation of the Business at the time. Except as described on
Schedule 8H, the Company will continue and will cause its Subsidiaries to
continue to own or have valid rights to use all of the assets constituting
personal or intellectual property (including without limitation, computer
equipment, computer software and other intellectual property) reasonably
necessary for the operation of the Business, in each case subject to no Liens
except such as are permitted by Section 6C.
Section 5I. Insurance. The Company will, and will cause its
Subsidiaries to, at its or their expense, at all times maintain, or cause to be
maintained, with financially sound and reputable insurers, insurance with
respect to their properties and business with coverages comparable to those
generally carried by companies of similar size that conduct the same or similar
business and have similar properties in the same general areas in which the
Company conducts its business; provided, however, that the Company may maintain
a system of self-insurance in an amount not exceeding an amount as is customary
for companies with established reputations engaged in the same or similar
business and owning and operating similar properties.
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The Company will, and will cause each of its Subsidiaries to, pay as
and when the same become due and payable the premiums for all insurance
policies that the Company and its Subsidiaries are required to maintain
hereunder.
Section 5J. Environmental Laws. The Company will, and will cause each
of its Subsidiaries to: (i) comply with all applicable Environmental Laws and
any permit, license, or approval required under any Environmental Law, except
for failures to so comply which could not reasonably be expected to have a
Material Adverse Effect;
(ii) store, use, release, or dispose of any Hazardous
Substance at any property owned or leased by the Company or any of its
Subsidiaries in a manner which could not reasonably be expected to have a
Material Adverse Effect;
(iii) avoid committing any act or omission which would cause
any Lien to be asserted against any property owned by the Company or any of its
Subsidiaries pursuant to any Environmental Law, except where such Lien could
not reasonably be expected to have a Material Adverse Effect;
(iv) use, handle or store any propane in compliance, in all
material respects, with all applicable laws.
Section 5K. After-Acquired Property. From and after the date of the
Initial Closing, the Company will, and will cause each of its Subsidiaries to,
execute and deliver such amendments to the Security Agreement, execute and
deliver such instruments and agreements (including, without limitation, such
Certificates and Stock Powers) and execute and cause to be duly recorded,
published, registered or filed in the appropriate jurisdictions such Financing
Statements, as shall be necessary to grant to the Collateral Agent a valid,
perfected, first priority security interest, subject to Liens permitted by the
Security Agreement, in any asset acquired by the Company or any Subsidiary of
the Company (including, without limitation, the Capital Stock of any
Subsidiary) after the Initial Closing, to the extent such asset would have been
included in the Collateral at the Initial Closing had the Company or one of its
Subsidiaries owned such asset as of the Initial Closing. The Company will pay
or cause to be paid all taxes, fees and other governmental charges in
connection with the execution, delivery, recording, publishing, registration
and filing of such documents and instruments in such places.
Section 5L. Further Assurances. At any time and from time to time
promptly, the Company shall, at its expense, execute and deliver to each holder
of a Note and the Collateral Agent such instruments and documents, and take
such further action, as the holders of the Notes may from time to time
reasonably request, in order to further carry out the intent and purpose of
this Agreement and the other Financing Documents and to establish, perfect,
preserve and protect the rights, interests and remedies created, or intended to
be created, in favor of the holders of the Notes hereunder and thereunder,
including, without limitation, the execution and delivery of Certificates and
Stock Powers and the execution, delivery, recordation and filing of Financing
Statements and continuation statements under the Uniform Commercial Code of any
applicable jurisdiction, and the delivery of satisfactory opinions of counsel.
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Section 5M. No Action Requiring Registration. Neither the Company nor
anyone acting on its behalf will take any action which would subject the
issuance and sale of the Notes to the registration and prospectus delivery
provisions of the Securities Act or to the registration or qualification
provisions of any securities or Blue Sky law of any applicable jurisdiction.
Section 5N. Books and Accounts. The Company will, and will cause each
of its Subsidiaries to, maintain proper books of record and account in which
full, true and proper entries shall be made of its transactions and set aside
on its books from its earnings for each fiscal year all such proper reserves as
in each case shall be required in accordance with GAAP.
Section 5O. Available Cash Reserves. The Company will maintain in each
fiscal quarter an amount of cash reserves that is necessary or appropriate in
the reasonable discretion of the General Partner to (i) provide for the proper
conduct of the business of the Company and its Subsidiaries (including reserves
for future capital expenditures) subsequent to such quarter, (ii) comply with
applicable law or any loan agreement, security agreement, mortgage, debt
instrument or other agreement or obligation to which the Company or any
Subsidiary is a party or by which it is bound or its assets are subject and
(iii) provide funds for distributions to partners of the Master Partnership and
the General Partner in respect of any one or more of the next four quarters;
provided that the General Partner need not establish cash reserves pursuant to
clause (iii) if the effect of such reserves would be that the Master
Partnership is unable to distribute the Minimum Quarterly Distribution (as
defined in the Agreement of Limited Partnership of the Master Partnership) on
all Common Units with respect to such quarter; and provided, further, that
disbursements made by the Company or a Subsidiary of the Company or cash
reserves established, increased or reduced after the end of such quarter but on
or before the date of determination of Available Cash with respect to such
quarter shall be deemed to have been made, established, increased or reduced
for purposes of determining Available Cash, within such quarter if the General
Partner so determines. In addition, without limiting the foregoing, Available
Cash for any fiscal quarter shall reflect reserves equal to (x) 50% of the
interest projected to be paid on the Notes in the next succeeding fiscal
quarter, plus (y) beginning with a date three fiscal quarters before a
scheduled principal payment date on the Notes, 25% of the aggregate principal
amount thereof due on any such payment date in the third succeeding fiscal
quarter, 50% of the aggregate principal amount due on any such payment date in
the second succeeding fiscal quarter and 75% of the aggregate principal amount
due on any scheduled payment date in the next succeeding fiscal quarter, plus
(z) the Unused Proceeds Reserve as of the date of determination; provided that
the foregoing reserves for amounts to be paid on the Notes shall be reduced by
the aggregate amount of advances available to the Company from responsible
financial institutions under binding, irrevocable (a) credit or financing
commitments (which are subject to no conditions which the Company is unable to
meet) and (b) letters of credit (which are subject to no conditions which the
Company is unable to meet), in each case to be used to refinance such amounts
to the extent such amounts could be borrowed and remain outstanding under
Sections 6A and 6B.
Section 5P. Parity Debt. (i) The Company shall ensure that the lenders
from time to time in respect of any outstanding Parity Debt shall, in the
documents governing the terms of such Indebtedness, (a) recognize the existence
and validity of the obligations represented by the Notes and (b) agree to
refrain from making or asserting any claim that the Financing Documents
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or the obligations represented by the Notes are invalid or not enforceable in
accordance with its and their terms as a result of the circumstances
surrounding the incurrence of such obligations.
(ii) Each holder of Notes from time to time, as evidenced by
its acceptance of such Notes, (a) acknowledges the existence and validity of
the obligations of the Company under the Credit Agreement (and any replacement,
extension, renewal, refunding or refinancing thereof permitted by clause (ii)
or (iii) of Section 6B, as the case may be), the 1996 Senior Secured Notes and
the 1997 Senior Secured Notes and (b) agrees to refrain from making or
asserting any claim that such obligations or the instruments governing the
terms thereof are invalid or not enforceable in accordance with its and their
terms as a result of the circumstances surrounding the incurrence of such
obligations.
Section 5Q. Special Counsel Opinions. The Company shall either (x) on
the Initial Closing Date, cause to be delivered to the Collateral Agent, a
letter from each of the respective special counsel listed on Schedule 5Q
attached hereto addressed to the Collateral Agent and accompanied by the
opinion of such counsel delivered in connection with the Note Purchase
Agreement dated as of June 25, 1996 among Heritage, the Company and the
Purchasers named therein (the "Original Opinion"), to the effect that the
Collateral Agent is entitled to rely on such Original Opinion as if such
opinion was originally addressed to the Collateral Agent; or, (y) in lieu of
delivering any such letter, on the Initial Closing Date, cause an attorney or
law firm, reasonably acceptable to the Initial Purchasers, to deliver to the
Collateral Agent an opinion substantially in the form of the Original Opinion
which was originally delivered by the special counsel referred to in Schedule
5Q which has not delivered the letter referred to in clause (x) above.
Section 5R. General Partner. At such time as U.S. Propane shall be
substituted for Heritage as general partner of the Company, (i) no Default or
Event of Default shall exist and be continuing before and after giving effect
to such substitution, (ii) U.S. Propane shall assume in writing the obligations
of Heritage under the Partnership Agreement, (iii) U.S. Propane shall not
engage in any business or own any assets other than the ownership of general
and/or limited partner interests in the Company and the Master Partnership and
the ownership of interests in the General Partner and any activities incidental
thereto, including, without limitation, cash management services for Heritage,
the Company and its Subsidiaries and inter-company loans made to Heritage, the
Company and its Subsidiaries in the ordinary course of business and (iv)
immediately after giving effect to such substitution, no Material Adverse
Effect shall exist.
SECTION 6. NEGATIVE COVENANTS.
The Company hereby covenants and agrees that from the Initial Closing
and thereafter so long as any of the Notes are outstanding:
Section 6A. Financial Ratios. The Company will not permit:
(i) Ratio of Consolidated Funded Indebtedness to Consolidated
EBITDA. The ratio as of the end of any fiscal quarter of Consolidated
Funded Indebtedness to Consolidated EBITDA to exceed 5.25 to 1.00;
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(ii) Minimum Interest Coverage. The ratio as of the end of
any fiscal quarter of Consolidated EBITDA to Consolidated Interest
Expense to be less than 2.25 to 1.00; or
(iii) Ratio of Adjusted Consolidated Funded Indebtedness to
Adjusted Consolidated EBITDA. The ratio as at the end of any fiscal
quarter of Adjusted Consolidated Funded Indebtedness to Adjusted
Consolidated EBITDA to exceed 6.25 to 1.00.
Notwithstanding any of the provisions of this Agreement the Company
will not, and will not permit any Subsidiary to, enter into any
transaction pursuant to Section 6B, clauses (vii), (viii) and (xiv)(b)
of Section 6C, Section 6F, or clauses (i)(b), (i)(c), (ii)(b) and
(iii) of Section 6G, (x) if after giving effect to any such
transaction a Default or Event of Default exists, or (y) if the
consummation of any such transaction would result in a violation of
this Section 6A, calculated for such purpose as of the date on which
such transaction were to be consummated both immediately before and
after giving effect to the consummation thereof; provided, however,
that in the case of transactions pursuant to Section 6G, the
calculation shall be made on a pro forma basis in accordance with GAAP
after giving effect to any such transaction, with the ratio recomputed
as at the last day of the most recently ended fiscal quarter of the
Company as if such transaction had occurred on the first day of the
relevant four quarter period.
Section 6B. Indebtedness. The Company will not, and will not permit
any of its Subsidiaries to, create, incur, assume, or otherwise become directly
or indirectly liable with respect to, any Indebtedness, except (subject to the
provisions of Section 6D):
(i) the Company may become and remain liable with respect to
Indebtedness evidenced by the 1996 Senior Secured Notes, the 1997 Senior
Secured Notes and Indebtedness incurred in connection with any extension,
renewal, refunding or refinancing of Indebtedness evidenced thereby, provided
that (x) the principal amount of such Indebtedness shall not exceed the
principal amount of the Indebtedness evidenced by the 1996 Senior Secured Notes
or the 1997 Senior Secured Notes, as the case may be, together with, in each
case, any accrued interest and Yield Maintenance Amount, with respect thereto
being extended, renewed, refunded or refinanced, and (y) such Indebtedness may
not have an average life to maturity shorter than the remaining average life to
maturity of the Indebtedness being extended, renewed, refunded or refinanced;
(ii) the Company may become and remain liable with respect to
Indebtedness incurred under the Revolving Working Capital Facility and for any
purpose permitted by the Revolving Working Capital Facility and any
Indebtedness incurred for any such permitted purpose which replaces, extends,
renews, refunds or refinances any such Indebtedness, in whole or in part;
provided that the aggregate principal amount of Indebtedness permitted under
this clause (ii) shall not at any time exceed an amount equal to (x)
$50,000,000 less (y) the amount of Indebtedness, if any, outstanding under the
revolving working capital facility permitted by clause (v) of this Section 6B;
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(iii) the Company may become and remain liable with respect
to Indebtedness incurred by the Company under the Acquisition Facility and any
Indebtedness incurred for any such permitted purpose which replaces, extends,
renews, refunds or refinances any such Indebtedness, in whole or in part; and
up to $10,000,000 of Indebtedness owing from time to time to the seller(s) in
Asset Acquisition(s) (in addition to Non-Compete Obligations permitted pursuant
to the provisions of clause (xii) of this Section 6B); provided that the
aggregate principal amount of indebtedness permitted under this clause (iii)
shall not at any time exceed the Contracted Dollar;
(iv) any Subsidiary of the Company may become and remain
liable with respect to Indebtedness of such Subsidiary owing to the Company or
to a Wholly-Owned Subsidiary of the Company;
(v) Heritage Service Corp. may become and remain liable with
respect to Indebtedness incurred under a revolving working capital facility and
for any purpose permitted by such revolving working capital facility and any
Indebtedness incurred for any permitted purpose which replaces, extends,
renews, refunds or refinances any such Indebtedness, in whole or in part;
provided that the aggregate principal amount of Indebtedness permitted under
this clause (v) shall not at any time exceed $3,000,000;
(vi) the Company and any of its Subsidiaries may become and
remain liable with respect to Indebtedness relating to any business, property
or assets acquired by or contributed to the Company or such Subsidiary or which
is secured by a lien on any property or assets acquired by or contributed to
the Company or such Subsidiary to the extent such Indebtedness existed at the
time such business, property or assets were so acquired or contributed, and if
such Indebtedness is secured by such property or assets, such security interest
does not extend to or cover any other property of the Company or any of its
Subsidiaries; provided that (a) immediately after giving effect to such
acquisition or contribution, the Company could incur at least $1.00 of
additional Indebtedness pursuant to clause (xiii) of this Section 6B and (b)
such Indebtedness was not incurred in anticipation of such acquisition or
contribution;
(vii) the Company and any of its Subsidiaries may become and
remain liable with respect to Indebtedness arising from the honoring by a bank
or other financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business, provided that
such Indebtedness is extinguished within 2 Business Days of its incurrence;
(viii) M-P Energy Partnership and M-P Oils, Ltd. may become
and remain liable with respect to Indebtedness in an aggregate principal amount
not to exceed $10,000,000, and the Company may become and remain liable with
respect to Guarantees of such Indebtedness of M-P Energy Partnership or M-P
Oils, Ltd. and of Indebtedness of Bi-State, Heritage Energy Resources L.L.C.,
or any other Subsidiaries of the Company, provided that the aggregate amount of
all Guarantees permitted by this clause (viii) shall not exceed $10,000,000;
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(ix) any Person that after the date of the Initial Closing
becomes a Subsidiary of the Company may become and remain liable with respect
to any Indebtedness to the extent such Indebtedness existed at the time such
Person became a Subsidiary; provided that (a) immediately after giving effect
to such Person becoming a Subsidiary of the Company, the Company could incur at
least $1.00 of additional Indebtedness in compliance with clause (xiii) of this
Section 6B and (b) such Indebtedness was not incurred in anticipation of such
Person becoming a Subsidiary of the Company;
(x) the Company and any of its Subsidiaries may become and
remain liable with respect to Indebtedness owed to any person providing
workers' compensation, health, disability or other employee benefits or
property, casualty or liability insurance to the Company or any of its
Subsidiaries, pursuant to reimbursement or indemnification obligations to such
person;
(xi) the Company and any of its Subsidiaries may become and
remain liable with respect to Indebtedness in respect of performance bonds, bid
bonds, appeal bonds, surety bonds and similar obligations, in each case
provided in the ordinary course of business, including those incurred to secure
health, safety and environmental obligations in the ordinary course of
business, and any extension, renewal or refinancing thereof to the extent not
provided to secure the repayment of other Indebtedness and to the extent that
the amount of refinancing Indebtedness is not greater than the amount of
Indebtedness being refinanced;
(xii) the Company may become and remain liable with respect
to Indebtedness incurred in respect of Capitalized Lease Obligations and
Non-Compete Obligations; provided that the Lien in respect thereof is permitted
by clause (viii) of Section 6C; and
(xiii) the Company and its Subsidiaries may become and remain
liable with respect to the Notes and other Indebtedness, in addition to that
otherwise permitted by the other clauses of this Section 6B, if on the date the
Company or any of its Subsidiaries becomes liable with respect to any such
additional Indebtedness and immediately after giving effect thereto and to the
substantially concurrent repayment of any other Indebtedness (a) the ratio of
Consolidated EBITDA to Consolidated Debt Service is equal to or greater than
2.50 to 1.0, (b) the ratio of Consolidated EBITDA to Consolidated Pro Forma
Maximum Debt Service is equal to or greater than 1.25 to 1.0 and (c) no Default
or Event of Default shall exist.
Section 6C. Liens. The Company will not, and will not permit any of
its Subsidiaries to, create, assume, incur or suffer to exist any Lien upon or
with respect to any of its properties or assets, whether now owned or hereafter
acquired, or any income or profits therefrom (whether or not provision is made
for the equal and ratable securing of the Notes in accordance with the
provisions of Section 5D), except:
(i) Liens existing on the date hereof on the property and
assets of the Company or any of its Subsidiaries as described in Schedule 6C;
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(ii) Liens for taxes, assessments or other governmental
charges the payment of which is not yet due and payable or the validity of
which is being contested in good faith in compliance with Section 5F;
(iii) attachment or judgment Liens not giving rise to an
Event of Default and with respect to which the underlying action has been
appealed or is being contested in good faith in compliance with Section 5F;
(iv) Liens of lessors, landlords, carriers, vendors,
mechanics, materialmen, warehousemen, repairmen and other like Liens incurred
in the ordinary course of business the payment of which is not yet due or which
is being contested in good faith in compliance with Section 5F, in each case
not incurred or made in connection with the borrowing of money, the obtaining
of advances or credit or the payment of the deferred purchase price of
property, provided that such Liens do not materially interfere with the conduct
of the business of the Company and its Subsidiaries taken as a whole;
(v) Liens (other than any Lien imposed by ERISA) incurred and
pledges and deposits made in the ordinary course of business (a) in connection
with workers' compensation, unemployment insurance, old age pensions, retiree
health benefits and other types of social security, or (b) to secure (or to
obtain letters of credit that do not constitute Indebtedness and that secure)
the performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, performance bonds, contracts and other similar obligations, in
each case not incurred or made in connection with the borrowing of money or the
obtaining of advances or credit; provided that such Liens do not materially
interfere with the conduct of the business of the Company and its Subsidiaries
taken as a whole;
(vi) zoning restrictions, easements, licenses, reservations,
provisions, covenants, conditions, waivers, restrictions on the use of property
or irregularities of title (and with respect to leasehold interests, mortgages,
obligations, liens and other encumbrances incurred, created, assumed or
permitted to exist and arising by, through or under a landlord or owner of the
leased property, with or without consent of the lessee) which do not in the
aggregate materially detract from the value of its property or assets or
materially impair the use thereof in the operation of its business;
(vii) Liens existing on any property of a Person at the time
such Person becomes a Subsidiary of the Company or existing at the time of
acquisition upon any property acquired by the Company or any of its
Subsidiaries at the time such property is so acquired, through purchase, merger
or consolidation or otherwise (whether or not the Indebtedness secured thereby
shall have been assumed); provided, however, that in the case of any such Lien
(1) such Lien shall at all times be confined solely to any such property and,
if required by the terms of the instrument creating such Lien, other property
which is an improvement to such acquired property, (2) such Lien was not
created in anticipation of such transaction, and (3) the Indebtedness secured
by such Lien shall be permitted under Section 6B;
(viii) Liens created after June 25, 1996 to secure all or any
part of the purchase price, or to secure Indebtedness (other than Parity Debt)
incurred or assumed to pay all or any
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part of the purchase price or cost of construction, of property acquired or
constructed by the Company or any of its Subsidiaries or to secure obligations
incurred in consideration of noncompete agreements ("Non-Compete Obligations")
entered into in connection with any such acquisition, including an acquisition
complying with clause (b)(y) of Section 6I; provided that (a) any such Lien
shall be confined solely to the item or items of such property (or improvement
thereon) so acquired or constructed and, if required by the terms of the
instrument creating such Lien, other property (or improvement thereon) which is
an improvement to such acquired or constructed property (and, in the case of
any Lien securing Non-Compete Obligations, shall also be limited to (x) such
item or items of property so acquired which are not included in the definition
of Collateral and (y) such additional items of the property so acquired, having
a total fair market value (as determined in good faith by the Board of
Directors of the General Partner) for the sum of (x) and (y) that is not more
than the amount of the Non-Compete Obligations so secured), (b) such items of
property so acquired are not required to become part of the Collateral under
the terms of the Security Documents, (c) any such Lien shall be created
contemporaneously with, or within 180 days after the acquisition or
construction of such property, (d) such Lien does not exceed an amount equal to
85% of the fair market value (100% in the case of Capitalized Lease Obligations
and 35% in the case of Non-Compete Obligations) of such property (as determined
in good faith by the Board of Directors of the General Partner) at the time of
acquisition thereof and (e) after giving effect to such Lien no Default or
Event of Default shall exist;
(ix) Liens on property or assets of any Subsidiary of the
Company securing Indebtedness of such Subsidiary owing to the Company or a
Wholly-Owned Subsidiary;
(x) leases or subleases of equipment to customers which do
not materially interfere with the conduct of the business of the Company and
its Subsidiaries taken as a whole;
(xi) easements, exceptions or reservations in any property of
the Company or any Subsidiary granted or reserved for the purpose of pipelines,
roads, the removal of oil, gas, coal or other minerals, and other like
purposes, or for the joint or common use of real property, facilities and
equipment, which are incidental to, and do not materially interfere with, the
ordinary conduct of the business of the Company or any of its Subsidiaries;
(xii) Liens (other than Liens securing Indebtedness) on the
property or assets of any Subsidiary of the Company in favor of the Company or
any other Wholly-Owned Subsidiary of the Company;
(xiii) Liens on the property or assets of Heritage Service
Corp. securing Indebtedness permitted by clause (v) of Section 6B provided that
(i) such Liens shall at all times be confined to property or assets having an
aggregate fair market value not exceeding $6,000,000 and (ii) as a result of
any such Lien no Default or Event of Default shall exist;
(xiv) Liens created by any of the Security Documents securing
(a) Indebtedness evidenced by the 1996 Senior Secured Notes, the 1997 Senior
Secured Notes, the Acquisition Facility or the Revolving Working Capital
Facility and (b) the Notes and other Additional Parity Debt; and
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(xv) any Lien renewing, extending or refunding any Lien
permitted by this Section 6C, provided that (a) the principal amount of the
Indebtedness secured by any such Lien shall not exceed the principal amount of
such Indebtedness outstanding immediately prior to the renewal, extension or
refunding of such Lien and (b) no assets encumbered by any such Lien other than
the assets encumbered immediately prior to such renewal, extension or refunding
shall be encumbered thereby.
Notwithstanding the foregoing, the Company will not, and will not
permit any of its Subsidiaries to, create, assume or incur any Lien upon or
with respect to (a) any Subsidiary stock held by the Company or any Subsidiary
of the Company, or (b) any of its proprietary software developed by or on
behalf of the Company or its Affiliates necessary and useful for the conduct of
the Business. No Lien permitted under this Section 6C shall result in
over-collateralization except as required by conventional practice for specific
types of borrowings.
Section 6D. Priority Debt. The Company will not permit Priority Debt,
at any time, to exceed the sum of (i) $15,000,000 plus (ii) 10% of the then
Consolidated Tangible Net Worth of the Company and its Subsidiaries (but only
to the extent such Consolidated Tangible Net Worth is positive). The provisions
of this Section 6D are further limitations on Priority Debt that shall
otherwise be permitted by Section 6A, 6B, or 6C.
Section 6E. Loans, Advances, Investments and Contingent Liabilities.
The Company will not, and will not permit any of its Subsidiaries to, directly
or indirectly, purchase or own any stock, obligations or securities of, or any
other interest in, or make any capital contribution to, any Person, make or
permit to remain outstanding any loan or advance to, or guarantee, endorse or
otherwise be or become contingently liable, directly or indirectly, in
connection with the obligations of any Person, or make any other Investment,
except:
(i) the Company or any of its Subsidiaries may make and own
Investments (w) consisting of Units issued for purposes of making acquisitions,
(x) arising out of loans and advances by the Company to any Wholly-Owned
Subsidiary incurred in the ordinary course of the Company's business as
conducted through its Subsidiaries or to employees incurred in the ordinary
course of business and consisting of advances to pay reimbursable expenditures,
(y) arising out of extensions of trade credit or advances to third parties in
the ordinary course of business and (z) acquired by reason of the exercise of
customary creditors' rights upon default or pursuant to the bankruptcy,
insolvency or reorganization of a debtor;
(ii) Guarantees that constitute Indebtedness to the extent
permitted by Sections 6A and 6B and other Guarantees that are not Guarantees of
Indebtedness and are undertaken in the ordinary course of business;
(iii) investment in (collectively, "Cash Equivalents")
(a) marketable obligations issued or unconditionally
guaranteed by the United States of America, or issued by any
agency thereof and backed by the full faith and credit of the
United States of America, in each case maturing one year or
less from the date of acquisition thereof,
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(b) marketable direct obligations issued by any
state of the United States of America or any political
subdivision of any such state or any public instrumentality
thereof maturing within one year from the date of acquisition
thereof and having as at such date the highest rating
obtainable from either Standard & Poor's Rating Services or
▇▇▇▇▇'▇ Investors Service, Inc.,
(c) commercial paper maturing no more than 270 days
from the date of creation thereof and having as at the date
of acquisition thereof one of the two highest ratings
obtainable from either Standard & Poor's Rating Services or
▇▇▇▇▇'▇ Investors Service, Inc.,
(d) certificates of deposit maturing one year or
less from the date of acquisition thereof (1) issued by
commercial banks incorporated under the laws of the United
States of America or any state thereof or the District of
Columbia or Canada or issued by the United States branch of
any commercial bank organized under the laws of any country
in Western Europe or Japan, with capital and stockholders'
equity of at least $500,000,000 (or the equivalent in the
currency of such country), (A) the commercial paper or other
short term unsecured debt obligations of which are as at such
date rated either A-2 or better (or comparably if the rating
system is changed) by Standard & Poor's Rating Services or
Prime-2 or better (or comparably if the rating system is
changed) by ▇▇▇▇▇'▇ Investors Service, Inc. or (B) the
long-term unsecured debt obligations of which are as at such
date rated either A or better (or comparably if the rating
system is changed) by Standard & Poor's Rating Services or A2
or better (or comparably if the rating system is changed) by
▇▇▇▇▇'▇ Investors Service, Inc. ("Permitted Banks") or (2)
issued by Bank of Oklahoma, National Association, in an
aggregate amount for all such certificates of deposit issued
by Bank of Oklahoma, National Association, not to exceed
$1,000,000.
(e) Eurodollar time deposits having a maturity of
less than 270 days from the date of acquisition thereof
purchased directly from any Permitted Bank,
(f) bankers' acceptances eligible for rediscount
under requirements of The Board of Governors of the Federal
Reserve System and accepted by Permitted Banks, and
(g) obligations of the type described in clause (a),
(b), (c), (d) or (e) above purchased from a securities dealer
designated as a "primary dealer" by the Federal Reserve Bank
of New York or from a Permitted Bank as counterparty to a
written repurchase agreement obligating such counterparty to
repurchase such obligations not later than 14 days after the
purchase thereof and which provides that the obligations
which are the subject thereof are held for the benefit of the
Company or any of its Subsidiaries by a custodian which is a
Permitted Bank and which is not a counterparty to the
repurchase agreement in question;
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(iv) the Company or any of its Subsidiaries may acquire
Capital Stock or other ownership interests of a Person (i) located in the
United States of America or Canada, (ii) incorporated or otherwise formed
pursuant to the laws of the United States of America or Canada or any state or
province thereof or the District of Columbia and (iii) engaged in substantially
the same business as the Company which Person at the time of such acquisition
is, or as a result thereof becomes, a Subsidiary of the Company;
(v) the Company or any of its Subsidiaries may make and own
Investments (in addition to Investments permitted by clauses (i), (ii), (iii),
and (iv) of this Section 6E) in any Person incorporated or otherwise formed
pursuant to the laws of the United States of America or Canada or any state or
province thereof or the District of Columbia; provided, however, that (i) the
sum of (a) the aggregate amount of all such Investments made by the Company and
its Subsidiaries following the Initial Closing Date which are outstanding
pursuant to this clause (v) plus (b) all other Investments held by the Company
and its Subsidiaries which are outstanding as of the Initial Closing Date and
listed on Schedule 6E shall not at any date of determination exceed 10% of
Consolidated Net Tangible Assets (the "Investment Limit"); (ii) the
representation in Section 8S shall be true and correct as of the date of
determination; and (iii) the aggregate amount of all such Investments made by
the Company and its Subsidiaries and outstanding pursuant to this clause (v) in
Persons engaged in a business which is not substantially the same as a line of
business described in Section 6H shall not at any date of determination exceed
2% of Consolidated Net Tangible Assets (provided that the aggregate amount of
Investments permitted under this subclause (iii) shall not at any time exceed
$12,500,000); and (iv) no Investment pursuant to this clause (v) may be made
unless if after giving effect thereto no Default or Event of Default exists;
(vi) the Company may make and become liable with respect to
any Interest Rate Agreements; and
(vii) any Subsidiary of the Company may make Investments in
the Company or in a Wholly-Owned Subsidiary of the Company.
Section 6F. Restricted Payments. The Company will not directly or
indirectly declare, order, pay, make or set apart any sum for any Restricted
Payment, except that the Company may declare or order, and make, pay or set
apart, during each fiscal quarter a Restricted Payment if (i) such Restricted
Payment, together with all other Restricted Payments during such fiscal
quarter, do not in the aggregate exceed the amount of Available Cash with
respect to the immediately preceding quarter, and (ii) no Default or Event of
Default exists before or immediately after any such proposed action.
Section 6G. Consolidation, Merger, Sale of Assets, etc. The Company
will not, and will not permit any of its Subsidiaries to, directly or
indirectly,
(i) consolidate with or merge into any other Person or permit
any other Person to consolidate with or merge into it, except that:
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(a) any Subsidiary of the Company may consolidate
with or merge into the Company or a Wholly-Owned Subsidiary
of the Company if the Company or a Wholly-Owned Subsidiary of
the Company, as the case may be, shall be the surviving
Person; and
(b) any entity (other than a Subsidiary of the
Company) may consolidate with or merge into the Company or a
Subsidiary if the Company or a Subsidiary of the Company, as
the case may be, shall be the surviving Person and if,
immediately after giving effect to such transaction, (I) the
Company and its Subsidiaries (x) shall not have a
Consolidated Net Worth, determined in accordance with GAAP
applied on a basis consistent with the consolidated financial
statements of the Company most recently delivered pursuant to
Section 5A, of less than the Consolidated Net Worth of the
Company and its Subsidiaries immediately prior to the
effectiveness of such transaction, satisfaction of this
requirement to be set forth in reasonable detail in an
Officer's Certificate delivered to each holder of a Note at
the time of such transaction, and (y) could incur at least
$1.00 of additional Indebtedness in compliance with Section
6A and clause (xiii) of Section 6B, (II) substantially all of
the assets of the Company and its Subsidiaries, taken as a
whole, shall be located and substantially all of their
business shall be conducted within the continental United
States of America or Canada, and (III) no Default or Event of
Default shall exist and be continuing; and
(c) the Company may consolidate with or merge into
any other entity if (I) the surviving entity is a corporation
or limited partnership organized and existing under the laws
of the United States of America or any state thereof or the.
District of Columbia, with substantially all of its
properties located and its business conducted within the
continental United States of America, (II) such corporation
or limited partnership expressly and unconditionally assumes
in writing the obligations of the Company under this
Agreement, the Notes and the other Financing Documents and
delivers to each holder of a Note at the time outstanding an
opinion of counsel satisfactory to the Required Holders with
respect to the due authorization and execution of the related
agreement of assumption and the enforceability of such
agreement against such corporation or partnership, (III)
immediately after giving effect to such transaction, such
corporation or limited partnership (x) shall not have a
Consolidated Net Worth, determined in accordance with GAAP
applied on a basis consistent with the consolidated financial
statements of the Company most recently delivered pursuant to
Section 5A (or if no such financials have yet been delivered
under Section 5A, consistent with the consolidated financial
statements referred to in Section 8D), of less than the
Consolidated Net Worth of the Company and its Subsidiaries
immediately prior to the effectiveness of such transaction,
satisfaction of this requirement to be set forth in
reasonable detail in an Officer's Certificate delivered to
each holder of a Note at the time of such transaction, and
(y) could incur at least $1.00 of additional Indebtedness in
compliance with
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Section 6A and clause (xiii) of Section 6B, and (IV) no
Default or Event of Default shall exist and be continuing
immediately before or after giving effect to such
transaction; or
(ii) sell, lease, abandon or otherwise dispose of all or
substantially all its assets, except that:
(a) any Subsidiary of the Company may sell, lease or
otherwise dispose of all or substantially all its assets to
the Company or to a Wholly-Owned Subsidiary of the Company;
and
(b) the Company may sell, lease or otherwise dispose
of all or substantially all its assets to any corporation or
limited partnership into which the Company could be
consolidated or merged in compliance with clause (i)(c) of
this Section 6G, provided that each of the conditions set
forth in such clause (i)(c) shall have been fulfilled; or
(iii) sell, lease, convey, abandon or otherwise dispose of
(including, without limitation, in connection with a Sale and Lease-Back
Transaction) any of its assets (except in a transaction permitted by clause
(i)(a), (i)(b), (i)(c), (ii)(a) or (ii)(b) of this Section 6G or sales of
inventory in the ordinary course of business consistent with past practice) or
issue or sell Capital Stock of any Subsidiary of the Company, whether in a
single transaction or a series of related transactions (each of the foregoing
nonexcepted transactions, an "Asset Sale"), unless:
(a) immediately after giving effect to such proposed
disposition no Default or Event of Default shall exist and be
continuing, satisfaction of this requirement to be set forth in
reasonable detail in an Officer's Certificate delivered to each holder
of a Note at the time of such transaction in the case of any Asset
Sale involving assets that generate Consolidated EBITDA and involve
consideration of $2,500,000 or more;
(b) such sale or other disposition is for cash consideration
or for consideration consisting of not less than 75% cash and not more
than 25% interest-bearing promissory notes; provided that the
limitation described in this clause (b) shall not apply to any sale or
other disposition generating less than $2,500,000 of Net Proceeds;
(c) one of the following two conditions must be satisfied:
(I) (x) the aggregate Net Proceeds of all assets so
disposed of (whether or not leased back) over the
immediately preceding 12-month period does not exceed
$5,000,000 and (y) the aggregate Net Proceeds of all
assets so disposed of (whether or not leased back)
from the Initial Closing Date through the date of
such disposition does not exceed $20,000,000; or
(II) in the event that such Net Proceeds (less the
amount thereof previously applied in accordance with
clause (x) of this
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clause (c)(II)) exceeds the limitations determined
pursuant to clauses (x) and (y) of clause (c)(I) of
this Section 6G (such excess amount being herein
called "Excess Sale Proceeds"), the Company shall
within 12 calendar months of the date on which such
Net Proceeds exceeded any such limitation, cause an
amount equal to such Excess Sale Proceeds to be
applied (x) to the acquisition of assets in
replacement of the assets so disposed of or of
assets which may be productively used in the United
States of America or Canada in the conduct of the
Business, or (y) to the extent not applied pursuant
to the immediately preceding clause (x), to offer to
make prepayments on the Notes pursuant to Section 4C
hereto and, allocated on the basis specified for
such prepayments in the definition of Allocable
Proceeds, to offer to repay other Parity Debt (other
than Indebtedness under Section 6B(ii) or that by
its terms does not permit such offer to be made);
and
(d) such sale or other proposed disposition shall be for fair
value and in the best interests of the Company, satisfaction of this
requirement to be certified in an Officer's Certificate delivered to
the Noteholders in the case of any Asset Sale involving assets that
generate Consolidated EBITDA and involve consideration of $2,500,000
or more.
Notwithstanding the foregoing, Asset Sales shall not be
deemed to include (1) any transfer of assets or issuance or sale of
Capital Stock by the Company or any of its Subsidiaries to the Company
or a Wholly-Owned Subsidiary of the Company, (2) any transfer of
assets or issuance or sale of Capital Stock by the Company or any of
its Subsidiaries to any Person in exchange for, or the Net Proceeds of
which are applied within 12 months to the purchase of, other assets
used in a line of business permitted under Section 6H and having fair
value (as determined in good faith by the Board of Directors of the
General Partner) not less than that of the assets so transferred or
Capital Stock so issued or sold and (3) any transfer of assets
pursuant to an Investment permitted by Section 6E.
Section 6H. Business. The Company will not and will not permit any of
its Subsidiaries to engage in any line of business if as a result thereof the
Company and its Subsidiaries would not be principally and predominately engaged
in the Business and related general and administrative operations, as more
fully described in the Memorandum and subject in all respects to the provisions
of clause (iii) of the proviso to Section 6E(v).
Section 6I. Transactions with Affiliates. The Company will not, and
will not permit any of its Subsidiaries to, directly or indirectly, engage in
any transaction with any Affiliate unless (i) (a) such transaction is on fair
and reasonable terms that are no less favorable to the Company or such
Subsidiary, as the case may be, than those which would be obtained in an
arm's-length transaction from a Person other than an Affiliate and (b)(x) such
transaction is entered into in the ordinary course of business and pursuant to
the reasonable requirements at the time of the Company's or such Subsidiary's
operations, or (y) such transaction involves the
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acquisition by the Company from the General Partner of assets formerly owned by
an entity, the Capital Stock of which was purchased by the General Partner or a
Wholly-Owned Subsidiary of the General Partner, which acquisition is for a
substantially equivalent value as the value of such purchase and is consummated
within ten days after the consummation of such purchase, as long as such
transaction otherwise would be permitted hereunder had the Company acquired
such assets directly from such entity (including, for example, the acquisition
by the Company from the General Partner of assets formerly owned by Kingston
Propane, Inc.), (ii) such transaction is in connection with the incurrence of
Indebtedness pursuant to Section 6B(viii), (iii) such transaction is in
connection with the making of an Investment pursuant to Section 6E(i), (iv)
such transaction is a Restricted Payment permitted by Section 6F, (v) such
transaction involves performance under the Contribution Agreement dated as of
June 28, 1996, among Heritage, the Company and the other signatories thereto
(substantially in the form in effect on the Initial Closing Date), (vi) such
transaction involves indemnification and contribution under Section 7.7 of the
Partnership Agreement (as said section is in effect on the Initial Closing
Date), to the extent such indemnification or contribution arises from
operations or activities in connection with the Business (including securities
issuances in connection with funding the Business) or (vii) such transaction is
a specific transaction described in the Registration Statement of the Master
Partnership filed with the Commission on April 25, 1996, as amended.
Section 6J. Subsidiary Stock and Indebtedness. (i) The Company will
not permit any of its Subsidiaries directly or indirectly to issue or sell any
Equity Interest of such Subsidiary of the Company to any Person other than the
Company or a Wholly-Owned Subsidiary of the Company except (a) for the purpose
of qualifying directors or (b) in satisfaction of pre-emptive rights of holders
of minority interests which are triggered by an issuance of Equity Interests to
the Company or a Subsidiary of the Company and permit such holders to maintain
their pro rata interests.
(ii) The Company will not directly or indirectly sell,
assign, pledge or otherwise dispose of any Equity Interest in or any
Indebtedness of any of its Subsidiaries, and will not permit any of its
Subsidiaries directly or indirectly to sell, assign, pledge or otherwise
dispose of any Equity Interest in or any Indebtedness of any other Subsidiary
of the Company except to the Company or a Wholly-Owned Subsidiary of the
Company, unless (a) simultaneously with such sale, transfer or disposition, all
of the Equity Interests (other than an Equity Interest representing less than
2% of the outstanding Equity Interests of all classes of such Subsidiary taken
together, provided that such Equity Interest is considered an Investment
pursuant to Section 6E(v) and is permitted thereunder) or Indebtedness of such
Subsidiary owned by the Company and its Subsidiaries is sold, transferred or
disposed of as an entirety, (b) the Board of Directors of the General Partner
shall have determined, as evidenced by a resolution thereof, that the proposed
sale, transfer or disposition of such Equity Interests or Indebtedness is in
the best interests of the Company, (c) such Equity Interests or Indebtedness
are sold, transferred or otherwise disposed of for cash or Cash Equivalents or
other assets used in a line of business permitted by Section 6H and having a
fair market value (as determined in good faith by the Board of Directors of the
General Partner) not less than that of the Equity Interests or Indebtedness so
transferred, to a Person upon terms deemed by the Board of Directors of the
General Partner to be acceptable, (d) the Subsidiary being sold, transferred or
otherwise disposed
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of shall not have any continuing investment in the Company or any Subsidiary of
the Company not being so sold, transferred or disposed and (e) such sale,
transfer or disposition is permitted by Section 6G.
Section 6K. Payment of Dividends by Subsidiaries. The Company will
not, and will not permit any of its Subsidiaries to, be subject to or enter
into any agreement which restricts the ability of any Subsidiary of the Company
to declare or pay any dividend to the Company, to make any distribution on any
Equity Interest of such Subsidiary to the Company, or to lend money to the
Company.
Section 6L. Sales of Receivables. The Company will not, and will not
permit any of its Subsidiaries to, discount, pledge, sell (with or without
recourse), or otherwise sell for less than face value thereof any of its
accounts or notes receivable, except for sales of receivables (i) without
recourse which are seriously past due and which have been substantially written
off as uncollectible or collectible only after extended delays, or (ii) made in
connection with the sale of a business but only with respect to the receivables
directly generated by the business so sold.
Section 6M. Material Agreements; Tax Status. The Company will not:
(i) amend or directly or indirectly modify in any manner the
definitions of "Lenders' Portion" or "Designated Net Proceeds" of the Credit
Agreement or any similar provisions of any agreement applicable to any
extensions, renewals or refundings thereof as Parity Debt under the provisions
of paragraph 6B(ii) or 6B(iii);
(ii) amend or modify in any manner adverse to the holders of
the Notes, or grant any waiver or release under (if such action shall be
adverse to the holders of the Notes), any Partnership Document, any notes
evidencing Parity Debt or any agreement relating to Parity Debt or terminate in
any manner any Partnership Document, it being understood, without limitation,
that no modification that reduces principal, interest or fees, premiums,
make-wholes or penalty charges, or extends any scheduled or mandatory payment,
prepayment or redemption of principal or interest, or makes less restrictive
any agreement or releases away any security, or waives any condition precedent
or default shall be adverse to the holders of the Notes for purposes of this
Agreement; or
(iii) permit the Master Partnership or the Company to be
treated as an association taxable as a corporation or otherwise to be taxed as
an entity for federal income tax purposes.
SECTION 7. EVENTS OF DEFAULT.
Section 7A. Acceleration. If any of the following conditions or events
("Events of Default") shall occur and be continuing for any reason whatsoever
(and whether such occurrence shall be voluntary or involuntary or come about or
be effected by operation of law or otherwise):
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(i) the Company defaults in the payment of any principal of,
or Premium, if any, on any Note when the same becomes due and payable, either
by the terms thereof or otherwise as herein provided; or
(ii) the Company defaults in the payment of any interest on
any Note for more than 5 days after the same becomes due and payable; or
(iii) the Company or any Subsidiary of the Company (whether
as primary obligor or as guarantor or other surety) defaults in any payment of
principal of or interest on any Parity Debt or any other Indebtedness other
than the Notes (including without limitation any Capitalized Lease Obligation,
any obligation under a conditional sale or other title retention agreement, any
obligation issued or assumed as full or partial payment for property whether or
not secured by a purchase money mortgage or any obligation under notes payable
or drafts accepted representing extensions of credit), beyond any period of
grace provided with respect thereto, or the Company or any Subsidiary of the
Company fails to perform or observe any other agreement or term or condition
contained in any agreement under which any such obligation is created (or if
any other event thereunder or under any such agreement shall occur and be
continuing) and the effect of such failure or other event is to cause, or to
permit the holder or holders of such Indebtedness (or a trustee on behalf of
such holder or holders) to cause, such obligation to become due or to be
repurchased prior to any stated maturity, provided that the aggregate amount of
all Indebtedness as to which such a default (payment or other) shall occur and
be continuing or such a failure or other event causing or permitting
acceleration (or resale to the Company or any Subsidiary of the Company) shall
occur and be continuing exceeds $5,000,000; provided, further, that no waiver,
modification or amendment relating to any such a default (payment or other) or
such a failure or other event with respect to any Parity Debt or agreement or
instrument relating to any Parity Debt shall be effective for purposes of this
clause (iii) if any consideration (other than the payment of reasonable
attorney's fees) is given, directly or indirectly, by the Company or any of its
Subsidiaries or Affiliates in respect thereof, unless substantially the same
consideration is given to the holders of the Notes; or
(iv) any representation or warranty made in any writing by or
on behalf of the Company or the General Partner in this Agreement, any other
Financing Document or the Parity Debt Designation or any instrument furnished
pursuant to this Agreement shall prove to have been false or incorrect in any
material respect on the date as of which made; or
(v) the Company fails to perform, observe or comply with any
agreement contained in Section 6 or Section 5A(v); or
(vi) the Company fails to perform or observe any other
agreement, term or condition contained in this Agreement or the other Financing
Documents and such failure shall not be remedied within 30 days after any
Responsible Officer obtains actual knowledge or notice thereof; or
(vii) the General Partner, the Company or any Significant
Subsidiary Group makes an assignment for the benefit of creditors or is
generally not paying its debts as such debts become due; or
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(viii) any decree or order for relief in respect of the
General Partner, the Company or any Significant Subsidiary Group is entered
under any bankruptcy, reorganization, compromise, arrangement, insolvency,
readjustment of debt, dissolution or liquidation or similar law, whether now or
hereafter in effect (herein called the "Bankruptcy Law"), of any jurisdiction;
or
(ix) the General Partner, the Company or any Significant
Subsidiary Group petitions or applies to any tribunal for, or consents to, the
appointment of, or taking possession by, a trustee, receiver, custodian,
liquidator or similar official of the General Partner, the Company or any
Significant Subsidiary Group, or of any substantial part of the assets of the
General Partner, the Company or any Significant Subsidiary Group, or commences
a voluntary case under the Bankruptcy Law of the United States or any
proceedings (other than proceedings for the voluntary liquidation and
dissolution of the General Partner, the Company or any Significant Subsidiary
Group) relating to the General Partner, the Company or any Significant
Subsidiary Group under the Bankruptcy Law of any other jurisdiction; or
(x) any such petition or application is filed, or any such
proceedings are commenced, against the General Partner, the Company or any
Significant Subsidiary Group and the General Partner, the Company or any
Significant Subsidiary Group by any act indicates its approval thereof,
consents thereto or acquiescences therein, or an order, judgment or decree is
entered appointing any such trustee, receiver, custodian, liquidator or similar
official, or approving the petition in any such proceedings, and such order,
judgment or decree remains unstayed and in effect for more than 30 days; or
(xi) a judgment or judgments for the payment of money in
excess of $5,000,000 in the aggregate (except to the extent covered by
insurance as to which the insurer has acknowledged in writing its obligation to
cover in full) shall be rendered against the Company or any Subsidiary of the
Company and either (i) enforcement proceedings have been commenced by any
creditor upon such judgment or order or (ii) within 45 days after entry
thereof, such judgment is not discharged or execution thereof stayed pending
appeal, or within 45 days after the expiration of any such stay, such judgment
is not discharged; or
(xii) any order, judgment or decree is entered in any
proceedings against the General Partner, the Company or any Significant
Subsidiary Group decreeing the dissolution of the General Partner, the Company
or any Significant Subsidiary Group and such order, judgment or decree remains
unstayed and in effect for more than 30 days or any other event occurs that
results in the termination, dissolution or winding up of the Company, subject
to Section 6G, the General Partner or any Significant Subsidiary Group; or
(xiii) any order, judgment or decree is entered in any
proceedings against the Company or any of its Subsidiaries decreeing a split-up
of the Company or such Subsidiary which requires the divestiture of assets
representing a substantial part, or the divestiture of the stock of a
Subsidiary of the Company whose assets represent a substantial part of the
consolidated assets of the Company and its Subsidiaries (determined in
accordance with GAAP) or which requires the divestiture of assets, or stock of
a Subsidiary of the Company, which shall have contributed a substantial part of
the Consolidated Net Income of the Company and its Subsidiaries for any of
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the three fiscal years then most recently ended, and such order, judgment or
decree shall not be dismissed or execution thereon stayed pending appeal or
review within 45 days after entry thereof, or in the event of such a stay, such
order, judgment or decree shall not be dismissed within 45 days after such stay
expires; or
(xiv) any of the Security Documents shall at any time, for
any reason cease to be in full force and effect or shall fail to constitute a
valid, perfected first priority Lien with respect to the Collateral, subject to
Liens permitted by the Security Agreement, or shall be declared to be null and
void in whole or in any material respect (i.e., relating to the validity or
priority of the Liens created by the Security Documents or the remedies
available thereunder) by the judgment of any court or other Governmental
Authority having jurisdiction in respect thereof, or if the validity or the
enforceability of any of the Security Documents shall be contested by or on
behalf of the Company, or the Company shall renounce any of the Security
Documents, or deny that it is bound by the terms of any of the Security
Documents; or
(xv) any of the events described in clauses (a), (b), (c) or
(d) shall occur: (a) the General Partner shall be engaged in any business or
activities other than those permitted by the Partnership Agreement as in effect
from time to time and in accordance with Section 6H, or (b) Heritage or U.S.
Propane ceases to be the sole general partner of the Company or the Master
Partnership, or (c) the Specified Entities shall own, directly or indirectly
through Wholly-Owned Subsidiaries, in the aggregate less than 51% of the
Capital Stock of the General Partner, or (d) either Designated Current Manager
shall, at any time during the Lock-up Period applicable to such Designated
Current Manager, own, directly or indirectly, less than 50% of the Common Units
of the Master Partnership owned, directly or indirectly, by such Designated
Current Manager immediately after giving effect to the Proposed Reorganization;
or
(xvi) an ERISA Event shall have occurred that, when taken
together with all other such ERISA Events that have occurred, could reasonably
be expected to result in liability of the Company and its ERISA Affiliates in
an aggregate amount exceeding $2,000,000; or
(xvii) an event of default under any of the Security
Documents has occurred and is continuing.
Then (a) if such event is an Event of Default specified in
clause (i) or (ii) of this Section 7A, the holder of any Note (other than the
Company or any of its Subsidiaries or Affiliates) may at its option, by notice
in writing to the Company, declare such Note to be, and such Note shall
thereupon be and become, immediately due and payable together with interest
accrued thereon and together with the Yield-Maintenance Amount, if any, with
respect to such Note, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Company, (b) if such event is
an Event of Default specified in clause (viii), (ix) or (x) of this Section 7A
with respect to the Company, all of the Notes at the time outstanding shall
automatically become immediately due and payable together with interest accrued
thereon and together with the Yield-Maintenance Amount, if any, with respect to
each such Note, without presentment, demand, protest or notice of any kind, all
of which are hereby waived by the Company, and (c) if such event is not an
Event of Default specified in clause (i), (ii), (viii), (ix) or (x) of this
Section 7A with respect to the Company, the Required Holder(s) may at its or
their
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option, by notice in writing to the Company, declare all of the Notes to
be, and all of the Notes shall thereupon be and become, immediately due and
payable together with interest accrued thereon and together with the
Yield-Maintenance Amount, if any, with respect to each Note, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Company.
The Company acknowledges, and the parties hereto agree, that each
holder of a Note has the right to maintain its investment in the Notes free
from repayment by the Company (except as herein specifically provided for) and
that the provision for payment of the Yield-Maintenance Amount by the Company
in the event that the Notes are prepaid or are accelerated as a result of an
Event of Default is intended to provide prepaid compensation for the
deprivation of such right under such circumstances.
Section 7B. Rescission of Acceleration. At any time after any or all
of the Notes shall have been declared immediately due and payable pursuant to
Section 7A, the Required Holder(s) may, by notice in writing to the Company,
rescind and annul such declaration and its consequences if (i) the Company
shall have paid all overdue interest on the Notes, the principal of and
Premium, if any, payable with respect to any Notes which have become due
otherwise than by reason of such declaration, and interest on such overdue
interest and overdue principal and Premium at the rate specified in the Notes,
(ii) the Company shall not have paid any amounts which have become due solely
by reason of such declaration, (iii) all Events of Default and Defaults, other
than non-payment of amounts which have become due solely by reason of such
declaration, shall have been cured or waived pursuant to Section 11C, and (iv)
no judgment or decree shall have been entered for the payment of any amounts
due pursuant to the Notes or this Agreement. No such rescission or annulment
shall extend to or affect any subsequent Event of Default or Default or impair
any right arising therefrom.
Section 7C. Notice of Acceleration or Rescission. Whenever any Note
shall be declared immediately due and payable pursuant to Section 7A or any
such declaration shall be rescinded and annulled pursuant to Section 7B, the
Company shall forthwith give written notice thereof to the holder of each Note
at the time outstanding.
Section 7D. Other Remedies. If any Event of Default or Default shall
occur and be continuing, the holder of any Note may proceed to protect and
enforce its rights under this Agreement and such Note by exercising such
remedies as are available to such holder in respect thereof under applicable
law, either by suit in equity or by action at law, or both, whether for
specific performance of any covenant or other agreement contained in this
Agreement or in aid of the exercise of any power granted in this Agreement. No
remedy conferred in this Agreement upon the holder of any Note is intended to
be exclusive of any other remedy, and each and every such remedy shall be
cumulative and shall be in addition to every other remedy conferred herein or
now or hereafter existing at law or in equity or by statute or otherwise.
SECTION 8. REPRESENTATIONS, COVENANTS AND WARRANTIES.
The Company represents, covenants and warrants as follows:
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Section 8A. Organization. The Company is a limited partnership duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite partnership power and authority to own and
operate its properties, to conduct its business, to enter into this Agreement,
the other Financing Documents and the Parity Debt Designation, to issue and
sell the Notes, and to carry out the terms of this Agreement, the Notes and the
other Financing Documents. Each Subsidiary of the Company is duly organized,
validly existing and in good standing under the laws of its state of
organization and has all requisite power and authority to own and operate its
properties (including without limitation the assets owned and operated by it).
Section 8B. Partnership Interests. The sole general partner of the
Company is Heritage (or, if applicable, U.S. Propane), which owns a 1.0101%
general partner interest in the Company. The only limited partner of the
Company is the Master Partnership, which owns a 98.9899% limited partner
interest in the Company and the Company does not have any partners other than
Heritage (or, if applicable, U.S. Propane) and the Master Partnership. The
Company does not have any Subsidiary other than the Subsidiaries of the Company
as set forth on Schedule 8B or any Investments in any Person (other than as set
forth on Schedule 6E or 8B or Investments of the types described in Section
6E(i), (iii) or (vi)).
Section 8C. Qualification. The Company is duly qualified or registered
and is in good standing as a foreign limited partnership for the transaction of
business, and each of the Subsidiaries of the Company is duly qualified or
registered and is in good standing as a foreign corporation, limited liability
company or partnership, as the case may be, for the transaction of business, in
the states and to the extent listed in Schedule 8C, and, except as reflected on
Schedule 8C, there are no other jurisdictions in which the nature of their
respective activities or the character of the properties they own, lease or use
makes such qualification or registration necessary and in which the failure so
to qualify or to be so registered would have a Material Adverse Effect. The
Company has taken all necessary partnership action to authorize the execution,
delivery and performance by it of this Agreement, the other Financing
Documents, the Parity Debt Designation and the Notes. At or prior to the
Initial Closing, the Company will have duly executed and delivered each of this
Agreement and the Series A-F Notes. At or prior to each Supplemental Closing
the Company shall have duly executed and delivered each of the applicable
Supplemental Note Purchase Agreement and the Series of Notes to be issued and
sold pursuant thereto. This Agreement, said Supplemental Note Purchase
Agreements and said Series A-F Notes and Subsequent Notes will constitute the
legal, valid and binding obligations of the Company enforceable against it in
accordance with their terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium or similar laws affecting creditors' rights
generally and general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Section 8D. Business; Financial Statements.
(a) Business. The Memorandum generally sets forth the
business conducted by the Company and its Subsidiaries at the date hereof.
(b) Financial Statements.
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(i) The Annual Reports as Form 10-K of the Master Partnership for the
fiscal years ended August 31, 1998 and August 31, 1999 have been prepared in
compliance with the requirements therefor and filed with the Commission and
present a true and fair view of the state of affairs of the Master Partnership
as at such dates and, with respect to the profit and cash flows of the Master
Partnership and its Subsidiaries, for the twelve month periods then ended. The
Consolidated Net Income of the Company and its Subsidiaries accounted for at
least 95% of the net income of the Master Partnership for each such fiscal
year;
(ii) Since August 31, 1999 there has been no change in the financial
condition of the Company and its Subsidiaries, as shown on the Annual Report on
Form 10-K with respect to the fiscal year ended on such date, except changes
which are described in the Memorandum or which, individually or in the
aggregate, would reasonably be expected not to have a Material Adverse Effect.
Section 8E. Actions Pending. There is no action, suit, investigation
or proceeding pending or, to the knowledge of the Company, threatened against
the Company or any of the Subsidiaries of the Company, or any properties or
rights of the Company or any of the Subsidiaries of the Company, by or before
any court, arbitrator or administrative or governmental body (i) which
questions the validity or enforceability of this Agreement, any other Financing
Document, the Partnership Agreement, the Parity Debt Designation or the Notes
or any action to be taken pursuant to this Agreement, any other Financing
Document, the Partnership Agreement, the Parity Debt Designation or the Notes
or (ii) which could reasonably be expected to result in a Material Adverse
Effect.
Section 8F. Changes. Except as contemplated by this Agreement or the
Notes or as described in the Memorandum, since August 31, 1999 (i) the Company
has not incurred any material liabilities or obligations, direct or contingent,
nor entered into any material transaction, in each case other than in the
ordinary course of business, and (ii) there has not been any material adverse
change in or effect on the business, assets, financial condition or prospects
of the Company.
Section 8G. Outstanding Indebtedness. Other than the Indebtedness
represented by the Notes, neither the Company nor any of the Subsidiaries of
the Company as set forth on Schedule 8B has outstanding any Indebtedness except
as set forth on Schedule 8G and any such Indebtedness which is indicated in
Schedule 8G to be paid in full on the Initial Closing Date will be paid in full
at the time of the Initial Closing. There exists no default under the
provisions of any instrument evidencing such Indebtedness or of any agreement
relating thereto. No instrument or agreement to which the Company or any of the
Subsidiaries of the Company is a party or by which the Company, any such
Subsidiary, or their respective properties is bound (other than this Agreement
and other than as indicated in Schedule 8G) will contain any restriction on the
incurrence by the Company or any of the Subsidiaries of the Company of
additional Indebtedness.
Section 8H. Title to Properties. (i) Except as set forth on Schedule
8H, each of the Company and the Subsidiaries of the Company will at the Initial
Closing be in possession of, and operating in compliance with, all franchises,
grants, authorizations, approvals, licenses, permits,
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easements, rights-of-way, consents, certificates and orders (collectively, the
"Permits") required (a) to own, lease or use its properties and (b) considering
all such Permits in the possession of, and complied with by, the Company and
its Subsidiaries taken together, to permit the conduct of the Business as now
conducted and proposed to be conducted, except for those Permits (x) which are
routine and administrative in nature and are expected in the reasonable
judgment of the Company to be obtained or given in the ordinary course of
business after the Initial Closing, and (y) which, if not obtained or given,
would not, individually or in the aggregate, present a reasonable likelihood of
having a Material Adverse Effect.
(ii) Except as set forth on Schedule 8H, on the Initial
Closing Date, the Company and the Subsidiaries of the Company will have, (i)
good and marketable title to, or valid leasehold interests in, all of their
respective assets constituting real property except for defects in, or lack of
recorded title and exceptions to leasehold interests that either alone or in
the aggregate could not reasonably be expected to result in a Material Adverse
Effect, and (ii) good and sufficient title to, or valid rights to use, all of
their respective assets constituting personal property reasonably necessary for
the operation of such personal property as it is used on the date hereof and
proposed to be used in the Business, in each case subject to no Liens except
such as are permitted by Section 6C and Liens, if any, which will be discharged
at the Initial Closing. The assets owned by the Company and the Subsidiaries of
the Company are all of the assets and properties reasonably necessary to enable
the Company and its Subsidiaries to conduct the Business. Subject to such
exceptions as would not, individually or in the aggregate, present a reasonable
likelihood of having a Material Adverse Effect (A) on the date hereof the
Company and the Subsidiaries of the Company enjoy peaceful and undisturbed
possession under all leases and subleases necessary in any material respect for
the conduct of the Business, and (B) all such leases and subleases are valid
and subsisting and are in full force and effect. None of the properties or
assets of the Company or any Subsidiaries of the Company is subject to any Lien
other than Liens permitted hereunder.
Section 8I. Taxes. On the Initial Closing Date, each of the Company
and its Subsidiaries will have filed all federal, state and other income tax
returns which, to the knowledge of the Company, are required to be filed or
will have properly filed for extensions of time for the filing thereof, and
will have paid all taxes, assessments and other governmental charges levied
upon it or any of its properties, assets, income or franchises as shown to be
due on such returns, except those which are not past due or are being contested
in good faith in compliance with Section 5F. The Company is a limited
partnership not subject to taxation with respect to its income or gross
receipts under applicable state laws and is treated as a pass-through entity
for U.S. federal income tax purposes.
Section 8J. Compliance with Other Instruments, etc.; Solvency. (i) On
the Initial Closing Date, neither the Company nor any of the Subsidiaries of
the Company will be in violation of (a) any provision of its certificate or
articles of incorporation or other constitutive documents or its by-laws, (b)
any provision of any agreement or instrument to which it is a party or by which
any of its properties is bound or (c) any applicable law, ordinance, rule or
regulation of any Governmental Authority or any applicable order, judgment or
decree of any court, arbitrator or Governmental Authority except (in the case
of clauses (b) and (c) above only) for
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such violations which would not, individually or in the aggregate, present a
reasonable likelihood of having a Material Adverse Effect.
(ii) The execution, delivery and performance of this Agreement and the
Notes and the Parity Debt Designation will not violate (a) any provision of the
Partnership Agreement or other constitutive documents or by-laws of the Company
or any of the Subsidiaries of the Company, (b) any applicable law, ordinance,
rule or regulation of any Governmental Authority or any applicable order,
judgment or decree of any court, arbitrator or Governmental Authority, or (c)
any provision of any agreement or instrument to which the Company or any of the
Subsidiaries of the Company is a party or by which any of its properties is
bound.
(iii) Upon giving effect to the issuance of the Series A-F Notes on
the Initial Closing Date and to the application of the proceeds thereof as
contemplated herein, no Note shall be "in default," as that term is used in
section 1405(a)(2) of the New York Insurance Law. The Company is a "solvent
institution," as that term is used in section 1405 of the New York Insurance
Law, whose "obligations are not in default as to principal or interest," as
those terms are used in said section 1405(c).
Section 8K. Governmental Consent. No consent, approval or
authorization of, or declaration or filing with, any Governmental Authority is
required for the valid execution, delivery and performance of this Agreement or
the Notes, or the Parity Debt Designation or for the valid offer, issue, sale,
delivery and performance of the Notes pursuant to this Agreement.
Section 8L. Offering of Notes. Neither the Company nor any of its
respective Affiliates nor any agent acting on behalf of any of the foregoing
has, directly or indirectly, offered the Notes or any part thereof or any
similar security of the Company for sale to, or solicited any offers to buy any
of the same from, or otherwise approached or negotiated with respect thereto
with, any Person other than the Purchasers and not more than 30 other
institutional investors, and neither the Company nor anyone acting on its
behalf has taken or will take any action which would subject the issuance or
sale of the Notes to the provisions of section 5 of the Securities Act or to
the provisions of any securities or "blue sky" laws of any applicable
jurisdiction.
Section 8M. Use of Proceeds. The net proceeds of the sale of the Notes
will be used (w) to fund the U.S. Propane Acquisition, (x) to refinance certain
Indebtedness of the Company under the Credit Agreement, (y) to pay costs
incurred in connection with the U.S. Propane Acquisition and the issuance of
the Series A-F Notes; and (z) to provide funds for general corporate purposes.
None of such proceeds will be used, directly or indirectly, for the purpose,
whether immediate, incidental or ultimate, of purchasing or carrying any margin
stock (as defined in Section 8R hereof) or for the purpose of maintaining,
reducing or retiring any Indebtedness which was originally incurred to purchase
or carry any stock that is currently a margin stock. Neither the Company nor
anyone acting on its behalf has taken or will take any action which might cause
this Agreement or the Notes to violate Regulation T or any other regulation of
the Board of Governors of the Federal Reserve System or to violate the Exchange
Act, in each case as in effect now or as the same may hereafter be in effect.
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Section 8N. ERISA. Each of the Company and its ERISA Affiliates is in
compliance in all material respects with the applicable provisions of ERISA and
the Code and the regulations and published interpretations thereunder. No ERISA
Event has occurred or is reasonably expected to occur that, when taken together
with all other such ERISA Events, could reasonably be expected to result in a
Material Adverse Effect. The present value of all benefit liabilities under
each Plan (based on those assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the last annual valuation
date applicable thereto, exceed by more than $5,000,000 the fair market value
of the assets of such Plan, and the present value of all benefit liabilities of
all underfunded Plans (based on those assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) did not, as of the last
annual valuation dates applicable thereto, exceed by more than $2,000,000 the
fair market value of the assets of all such underfunded Plans.
Section 8O. Environmental Compliance. (i) Except where the failure to
be in compliance could not present a reasonable likelihood of having a Material
Adverse Effect, as at the Initial Closing Date the Company and each Subsidiary
of the Company will be in compliance with all Environmental Laws applicable to
it and to the Business or its assets. At the Initial Closing the Company and
each Subsidiary of the Company will be in compliance with all franchises,
grants, authorizations, permits, licenses, and approvals required under
Environmental Laws, except for any non-compliance or failure to obtain such
Permits which could not reasonably be expected to have a Material Adverse
Effect. The Company has submitted timely and complete applications to renew any
expired or expiring Permits required pursuant to any Environmental Law, except
for any non-compliance or failure to obtain such Permits which could not
reasonably be expected to have a Material Adverse Effect. All reports,
documents, or other submissions required by Environmental Laws to be submitted
by the Company to any Governmental Authority or Person have been filed by the
Company, except where the failure to do so would not present a reasonable
likelihood of having a Material Adverse Effect.
(ii) (a) There is no Hazardous Substance present at any of the real
property currently owned or leased by the Company, any of its Subsidiaries or
Heritage except to the extent that such presence could not reasonably be
expected to have a Material Adverse Effect, and (b) to the knowledge of the
Company, any of its Subsidiaries or Heritage, there was no Hazardous Substance
present at any of the real property formerly owned or leased by the Company,
any of its Subsidiaries or Heritage during the period of ownership or leasing
by the Company, any of its Subsidiaries or Heritage except to the extent that
such presence could not be reasonably expected to have a Material Adverse
Effect; and with respect to such real property and subject to the same
knowledge and temporal qualifiers concerning Hazardous Substances with respect
to formerly owned or leased real properties, there has not occurred (x) any
release, or to the knowledge of the Company, any of its Subsidiaries or
Heritage, threatened release of a Hazardous Substance, or (y) any discharge or,
to the knowledge of the Company, any of its Subsidiaries or Heritage,
threatened discharge of any Hazardous Substance into the ground, surface or
navigable waters which discharge or threatened discharge violates any federal,
state, local or foreign laws, rules or regulations concerning water pollution,
except to the extent that such release or discharge could not reasonably be
expected to have a Material Adverse Effect.
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(iii) None of the Company, any of its Subsidiaries or Heritage has
disposed of, transported, or arranged for the transportation or disposal of any
Hazardous Substance where such disposal, transportation, or arrangement would
give rise to liability pursuant to CERCLA or any analogous state statute other
than any such liabilities that could not reasonably be expected to have a
Material Adverse Effect.
(iv) As of the date hereof: (a) no Lien has been asserted by any
Governmental Authority or person resulting from the use, spill, discharge,
removal, or remediation of any Hazardous Substance with respect to any real
property currently owned or leased by the Company, any of its Subsidiaries or
Heritage, and (b) to the knowledge of the Company, any of its Subsidiaries or
Heritage, no such Lien was asserted with respect to any of the real property
formerly owned or leased by Heritage during the period of ownership or leasing
of the real property by such Person.
(v) (a) There are no underground storage tanks, asbestos-containing
materials, polychlorinated biphenyls, or urea formaldehyde insulation at any of
the real property currently owned or leased by the Company, any of its
Subsidiaries or Heritage in violation of any Environmental Law, and (b) to the
knowledge of the Company, any of its Subsidiaries or Heritage, there were no
underground storage tanks, asbestos-containing materials, polychlorinated
biphenyls, or urea formaldehyde insulation at any of the real property formerly
owned or leased by Heritage in violation of any Environmental Law during the
period of ownership or leasing of such real property by such Person.
(vi) As of the date hereof, any propane is stored, used and handled by
the Company and the Subsidiaries of the Company in compliance with all
applicable Environmental Laws except for any storage, use or handling of
propane that could not reasonably be expected to have a Material Adverse
Effect.
Section 8P. Pre-emptive Rights. There are no pre-emptive rights to
which a holder of a minority interest in any Subsidiary of the Company is
entitled.
Section 8Q. Disclosure. This Agreement, the Notes, the Memorandum and
any other document, certificate or statement furnished to any Purchaser by or
on behalf of the Company or any of its Subsidiaries or Affiliates, in
connection herewith, taken together, do not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements contained herein and therein, in light of the circumstances under
which they were made, not misleading. There is no fact known to the Company
which has or in the future could reasonably be expected to have (so far as the
Company can now foresee) a Material Adverse Effect and which has not been set
forth in this Agreement or in the other documents, certificates and statements
furnished to each Purchaser by or on behalf of the Company prior to the date
hereof in connection with the transactions contemplated hereby.
Section 8R. Federal Reserve Regulations. None of the Company, or any
Subsidiary of the Company will, directly or indirectly, use any of the proceeds
of the sale of the Notes for the purpose, whether immediate, incidental or
ultimate, of buying a "margin stock" or of maintaining, reducing or retiring
any indebtedness originally incurred to purchase a stock that is
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currently a "margin stock," in each case within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System (12 C.F.R. 207, as
amended), or otherwise take or permit to be taken any action which would
involve a violation of Regulation X (12 C.F.R. 224, as amended) or any other
applicable regulation of such Board. No indebtedness being retired, directly or
indirectly, out of the proceeds of the sale of the Notes was incurred for the
purpose of purchasing or carrying any stock which is currently a "margin
stock," and the Company does not own or have any present intention of acquiring
any amount of such "margin stock."
Section 8S. Investment Company Act. None of the Company or any
Subsidiary of the Company is an "investment company," or a company "controlled"
by an "investment company," within the meaning of the Investment Company Act of
1940, as amended.
Section 8T. Public Utility Holding Company Act. Each of the Company
and each Subsidiary of the Company is exempt from all of the provisions of the
Public Utility Holding Company Act of 1935, as amended (the "PUHCA") and the
rules thereunder other than Section 9(a)(2) thereof based upon a no-action
letter from the Commission dated June 19, 1996.
Section 8U. Intercreditor Agreement and Security Agreement. The
Intercreditor Agreement is, to the best knowledge of the Company, in full force
and effect. The Security Agreement is in full force and effect. Prior to the
date hereof neither the Security Agreement nor, to the best knowledge of the
Company, except for the Amendment Agreement to the Intercreditor Agreement
dated as of October 15, 1999, the Intercreditor Agreement has been amended or
supplemented. The Company has delivered to the Collateral Agent such
Certificate and Stock Powers and such Financing Statements under the Uniform
Commercial Code of such jurisdictions as are necessary to perfect the Liens
created by the Security Agreement. The Financing Statements have been filed in
all of such necessary jurisdictions to perfect the assignment of the security
interest purported to be created by the Security Agreement.
Section 8V. Certain Representations of Company and General Partner.
The representations and warranties of the Company and the General Partner
contained in the Financing Documents (other than this Agreement) and those
otherwise made in writing by or on behalf of the Company or the General Partner
pursuant to such Financing Documents were true and correct when made and shall
continue to be true and correct (unless stated to relate to a specific earlier
date, in which case such representations and warranties shall be true and
correct as of such earlier date).
Section 8W. Labor Matters. Except as set forth in Schedule 8W, (i)
neither the Company nor any of its Subsidiaries is a party to any collective
bargaining agreement or other contracts with a labor union or labor
organization; and (ii) to the knowledge of the Company, there is no (1) unfair
labor practice, labor dispute (other than routine individual grievances) or
labor arbitration proceeding pending or threatened against the Company or its
Subsidiaries, which, in the aggregate, could reasonably be expected to have a
Material Adverse Effect, (2) activity or proceeding by a labor union or
representative thereof to organize any employees of the Company or any of its
Subsidiaries, (3) lockout, strike, slowdown, work stoppage or threat thereof by
or with respect to any such employees or (4) material dispute, grievance or
litigation relating to labor matters involving any employee. Each of the
Company and its Subsidiaries is in
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compliance with all Applicable Laws regarding employment, employment practices,
terms and conditions of employment and wages, except for such noncompliance
which, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
SECTION 9. REPRESENTATIONS OF EACH PURCHASER.
Each Purchaser severally and not jointly represents as follows:
Section 9A. Nature of Purchase. Such Purchaser is not acquiring the
Notes to be purchased by it hereunder with a view to or for sale in connection
with a distribution of the Notes within the meaning of the Securities Act,
provided that the disposition of such Purchaser's property shall at all times
be and remain within its control.
Section 9B. Source of Funds. At least one of the following statements
is an accurate representation as to the source of funds (the "Source") to be
used by such Purchaser to pay the purchase price of the Notes purchased by such
Purchaser hereunder:
(i) the Source is a general account of an insurance company,
and the amount of the reserves and liabilities (as defined by the annual
statement for life insurance companies approved by the National Association of
Insurance Commissioners (the "NAIC Annual Statement")) for the general account
contract(s) held by or on behalf of any employee benefit plans (as defined by
Section 3(3) of ERISA) together with the amount of the reserves and liabilities
(as defined by the NAIC Annual Statement) for the general account contract(s)
held by or on behalf of any other such employee benefit plans maintained by the
same employer (or affiliate thereof as defined in United States Department of
Labor's Prohibited Transaction Class Exemption ("PTCE") 95-60) or by the same
employee organization do not exceed 10% of the total reserves and liabilities
of such general account (exclusive of separate account liabilities) plus
surplus as set forth in the NAIC Annual Statement filed with the state of
domicile of the insurance company. For purposes of the percentage limitation
above, the amount of reserves and liabilities for the general account
contract(s) held by or on behalf of an employee benefit plan shall be
determined before reduction for credits on account of any reinsurance ceded on
a coinsurance basis; or
(ii) the Source is either (a) an insurance company pooled
separate account, within the meaning of ▇▇▇▇ ▇▇-▇ (▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇), ▇▇
(▇) a bank collective investment fund, within the meaning of PTCE 91-38 (issued
July 12, 1991) and, except as disclosed on a list that has been provided by
such Purchaser to the Company, no employee benefit plan or group of plans
maintained by the same employer or employee organization participates to the
extent of 10% or more of all assets allocated to such pooled separate account
or collective investment fund; or
(iii) the Source constitutes assets of an "investment fund"
(within the meaning of Part V of PTCE 84-14 (the "QPAM Exemption")) managed by
a "qualified professional asset manager" or "QPAM" (within the meaning of Part
V of the QPAM Exemption), no employee benefit plan's assets that are included
in such investment fund, when combined with the assets of all other employee
benefit plans established or maintained by the same employer or by an
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affiliate (within the meaning of Section V(c)(1) of the QPAM Exemption) of such
employer or by the same employee organization and managed by such QPAM, exceed
20% of the total client assets managed by such QPAM, the conditions of Part
I(c) and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a person
controlling or controlled by the QPAM (applying the definition of "control" in
Section V(e) of the QPAM Exemption) owns a 5% or more interest in the Company
and (i) the identity of such QPAM and (ii) the names of all employee benefit
plans whose assets are included in such investment fund have been disclosed on
Schedule 9B hereto; or
(iv) the Source is a governmental plan; or
(v) the Source is one or more employee benefit plans or a
separate account, trust fund or other entity the assets of which consist of
"plan assets" of any employee benefit plans or plans as defined in Department
of Labor regulation Section 2510.3-101, and each such employee benefit plan or
plan has been disclosed on Schedule 9B hereto; or
(vi) the Source does not include assets of any employee
benefit plan (other than a plan exempt from the coverage of ERISA) or plan or
any other entity the assets of which consist of "plan assets" of employee
benefit plans or plans as defined in Department of Labor regulation Section
2510.3-101; or
(vii) the Source is an insurance company separate account
maintained solely in connection with the fixed contractual obligations of the
insurance company under which the amounts payable or credited to any employee
benefit plan (or its related trust) and to any participant or beneficiary of
such plan (including any annuitant) are not affected in any manner by the
investment performance of the separate account.
As used in this Section 9B, the terms "employee benefit plan," "governmental
plan," "party in interest" and "separate account" shall have the respective
meanings assigned to such terms in Section 3 of ERISA, and the term "plan" has
the meaning assigned thereto in Section 4975(e)(1) of the Code.
Section 9C. Status of Purchaser. By its execution of this Agreement,
each Purchaser severally represents that it is an "accredited investor" by
reason of the provisions of clause (1), (3) or (7) of the definition of that
term in Regulation D under the Securities Act.
Section 9D. Representations of Each Purchaser to Each Other Purchaser.
By its execution of this Agreement, each Purchaser severally represents and
acknowledges to each other Purchaser that it has, independently and without
reliance upon any other Purchaser and based on the financial statements
referred to in Section 8D, the Memorandum and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Purchaser also severally represents
and acknowledges to each other Purchaser that it will, independently and
without reliance upon any other Purchaser and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this
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Agreement. The provisions of this Section 9D are for the sole benefit of the
Purchasers and are not intended to benefit or to confer any right upon the
Company or any other Person.
SECTION 10. DEFINITIONS.
For the purpose of this Agreement, the terms defined in the
introductory sentence and in Sections 1 and 2 shall have the respective
meanings specified therein, and the following terms shall have the meanings
specified with respect thereto below:
Section 10A. Yield-Maintenance Terms.
"Called Principal" shall mean, with respect to any Note, the principal
of such Note that is to be prepaid pursuant to Section 4B or 4C or is declared
to be immediately due and payable pursuant to Section 7A, as the context
requires.
"Discounted Value" shall mean, with respect to the Called Principal of
any Note, the amount obtained by discounting all Remaining Scheduled Payments
with respect to such Called Principal from their respective scheduled due dates
to the Settlement Date with respect to such Called Principal, in accordance
with accepted financial practice and at a discount factor (applied on the same
periodic basis as that on which interest on the Notes is payable) equal to the
Reinvestment Yield with respect to such Called Principal.
"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 "PX1" on the Bloomberg Financial Markets Service (or such
other display as may replace Page PX1 on the Bloomberg Financial Markets
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 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 ▇▇▇▇ 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).
"Remaining Average Life" shall mean, with respect to the Called
Principal of any Note, the number of years (calculated to the nearest
one-twelfth year) obtained by dividing (i) such Called Principal into (ii) the
sum of the products obtained by multiplying (a) each Remaining Scheduled
Payment of such Called Principal (but not of interest thereon) by (b) the
number of years (calculated to the nearest one-twelfth year) which will elapse
between the Settlement Date
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with respect to such Called Principal and the scheduled due date of such
Remaining Scheduled Payment.
"Remaining Scheduled Payments" shall mean, with respect to the Called
Principal of any Note, all payments of such Called Principal and interest
thereon that would be due on or after the Settlement Date with respect to such
Called Principal if no payment of such Called Principal were made prior to its
scheduled due date.
"Settlement Date" shall mean, with respect to the Called Principal of
any Note, the date on which such Called Principal is to be prepaid pursuant to
Section 4B or 4C or is declared to be immediately due and payable pursuant to
Section 7A, as the context requires.
"Yield-Maintenance Amount" shall mean, with respect to any Note, an
amount equal to the excess, if any, of the Discounted Value of the Called
Principal of such Note over the sum of (i) such Called Principal plus (ii)
interest accrued thereon as of (including interest due on) the Settlement Date
with respect to such Called Principal. The Yield-Maintenance Amount shall in no
event be less than zero.
Section 10B. Other Terms.
"Accepting Holders" shall have the meaning specified in Section
4D(iii).
"Acquired Debt" shall mean with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person merged
with or into or became a Subsidiary of such specified Person, including
Indebtedness incurred in connection with, or in contemplation of, such other
Person merging with or into or becoming a Subsidiary of such specified Person
and (ii) Indebtedness encumbering any asset acquired by such specified Person.
"Acquisition Facility" shall mean the acquisition revolving credit
facility of the Company provided for in the Credit Agreement for the purpose of
financing acquisitions and improvements and repairs in the aggregate principal
amount not to exceed $50,000,000.
"Additional Parity Debt" shall mean Indebtedness of the Company
incurred in accordance with Section 6A and clause (xiii) of Section 6B to fund
acquisitions or provide working capital, provided that the covenants imposed on
the Company therein or in any agreement or instrument relating thereto are no
more restrictive than the covenants imposed on the Company herein, and
provided, further, that no such Indebtedness shall be deemed Additional Parity
Debt unless immediately before and after giving effect to the incurrence
thereof no Default or Event of Default shall have occurred and be continuing.
"Adjusted Consolidated EBITDA" shall mean, as of any date of
determination for any applicable period, Consolidated EBITDA calculated
(x) with respect to the consolidated group comprised of the
General Partner, the Master Partnership and the Company and its
Subsidiaries (rather than with respect to the consolidated group
comprised of the Company and its Subsidiaries), and
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(y) as if the terms 'Consolidated Non-Cash Charges',
'Consolidated Net Income', 'Consolidated Interest Expense',
'Consolidated Income Tax Expense', 'Asset Sale', and 'Asset
Acquisition', were calculated with respect to the consolidated group
comprised of the General Partner, the Master Partnership and the
Company and its Subsidiaries (rather than with respect to the
consolidated group comprised of the Company and its Subsidiaries).
"Adjusted Consolidated Funded Indebtedness" shall mean Consolidated
Funded Indebtedness calculated with respect to the consolidated group comprised
of the General Partner, the Master Partnership and the Company and its
Subsidiaries (rather than with respect to the consolidated group comprised of
the Company and its Subsidiaries).
"Administrative Agent" shall mean Bank of Oklahoma, National
Association (as successor to The First National Bank of Boston), as
administrative agent under the Credit Agreement, together with its successors
as such Administrative Agent.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person, except a Subsidiary of such Person. A Person
shall be deemed to control a corporation if such Person (i) possesses, directly
or indirectly, the power to direct or cause the direction of the management and
policies of such corporation, whether through the ownership of voting
securities, by contract or otherwise or (ii) owns at least 5% of the Voting
Stock of a corporation. As applied to the Company, "Affiliate" includes without
limitation the General Partner and the Master Partnership.
"Agreement" shall have the meaning set forth in Section 11C.
"Allocable Proceeds" shall mean, with respect to Excess Sale Proceeds
or Excess Taking Proceeds, as the case may be, to be applied on any date
pursuant to Sections 4C and 4D, the principal amount thereof available to
prepay the Notes determined by allocating such Excess Sale Proceeds or Excess
Taking Proceeds, as the case may be, pro rata among the holders of all Notes
and other Parity Debt (other than Indebtedness permitted by Section 6(B)(ii)),
if any, according to the aggregate principal amounts of the Notes and such
other Parity Debt outstanding on the date the applicable prepayment is to be
made in accordance with Sections 4C and 4D.
"Asset Acquisition" shall mean (a) an Investment by the Company or any
Subsidiary of the Company in any other Person pursuant to which such Person
shall become a Subsidiary of the Company or shall be merged with or into the
Company or any Subsidiary of the Company, (b) the acquisition by the Company or
any Subsidiary of the Company of the assets of any Person which constitute all
or substantially all of the assets of such Person or (c) the acquisition by the
Company or any Subsidiary of the Company of any division or line of business of
any Person (other than a Subsidiary of the Company).
"Asset Sale" shall have the meaning specified in Section 6G(iii).
"Attributable Debt" shall mean, with respect to any Sale and
Lease-Back Transaction not involving a Capitalized Lease Obligation, as of any
date of determination, the total obligation
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(discounted to present value at the rate of interest implicit in the lease
included in such transaction) of the lessee for rental payments (other than
accounts required to be paid on account of property taxes, maintenance,
repairs, insurance, assessments, utilities, operating and labor costs and other
items which do not constitute payments for property rights) during the
remaining portion of the term (including extensions which are at the sole
option of the lessor) of the lease included in such transaction (in the case of
any lease which is terminable by the lessee upon the payment of a penalty, such
rental obligation shall also include the amount of such penalty, but no rent
shall be considered as required to be paid under such lease subsequent to the
first date upon which it may be so terminated).
"Available Cash" shall mean, with respect to any fiscal quarter of the
Company: (1) the sum of (a) all cash and cash equivalents of the Company and
its Subsidiaries on hand at the end of such quarter and (b) all additional cash
and cash equivalents of the Company and its Subsidiaries on hand on the date of
determination of Available Cash with respect to such quarter resulting from
borrowings for working capital purposes made subsequent to the end of such
quarter, less (2) the amount of any cash reserves that is necessary or
appropriate in the reasonable discretion of the General Partner to (a) provide
for the proper conduct of the business of the Company and its Subsidiaries
(including reserves for future capital expenditures) subsequent to such
quarter, (b) comply with applicable law or any loan agreement, security
agreement, mortgage, debt instrument or other agreement or obligation to which
the Company or any Subsidiary is a party or by which it is bound or its assets
are subject (including the Financing Documents) and (c) provide funds for
distributions to partners of the Master Partnership and the General Partner in
respect of any one or more of the next four quarters; provided that the General
Partner need not establish cash reserves pursuant to clause (c) if the effect
of such reserves would be that the Master Partnership is unable to distribute
the Minimum Quarterly Distribution (as defined in the Agreement of Limited
Partnership of the Master Partnership) on all Common Units with respect to such
quarter; and provided, further, that disbursements made by the Company or a
Subsidiary of the Company or cash reserves established, increased or reduced
after the end of such quarter but on or before the date of determination of
Available Cash with respect to such quarter shall be deemed to have been made,
established, increased or reduced for purposes of determining Available Cash,
within such quarter if the General Partner so determines. In addition, without
limiting the foregoing, Available Cash for any fiscal quarter shall reflect
reserves equal to (A) 50% of the interest projected to be paid on the Notes in
the next succeeding fiscal quarter plus (B) beginning with a date three fiscal
quarters before a scheduled principal payment date on the Notes, 25% of the
aggregate principal amount thereof due on any such payment date in the third
succeeding fiscal quarter, 50% of the aggregate principal amount due on any
such payment date in the second succeeding fiscal quarter and 75% of the
aggregate principal amount due on any such payment date in the next succeeding
fiscal quarter, plus (C) the Unused Proceeds Reserve as of the date of
determination, provided that the foregoing reserves for amounts to be paid on
the Notes shall be reduced by the aggregate amount of advances available to the
Company from responsible financial institutions under binding irrevocable (x)
credit or financing commitments (which are subject to no conditions which the
Company is unable to meet) and (y) letters of credit (which are subject to no
conditions which the Company is unable to meet), in each case, to be used to
refinance such amounts to the extent such amounts could be borrowed and remain
outstanding under Sections 6A and 6B.
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"Bankruptcy Law" shall have the meaning specified in clause (viii) of
Section 7A.
"Bi-State" shall mean Bi-State Propane, a California general
partnership.
"Business" shall mean the business of wholesale and retail sales,
storage, transportation and distribution of propane gas; providing repair,
installation and maintenance services for propane heating systems; the sale and
distribution of propane-related supplies and equipment (including appliances);
the generation, transportation, sale, distribution and marketing relating
thereto of propane-powered fuel cells, or the power generated therefrom and
equipment related thereto; and the marketing of natural gas to any then current
propane user in such areas where the Company operates from time to time,
provided, that, with respect to such marketing, the Company shall act only as a
marketing agent for a natural gas utility and shall receive a fee or other
compensation for such services provided.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
day on which commercial banks in New York City and Tulsa, Oklahoma are required
or authorized to be closed.
"Capital Stock" shall mean, with respect to any Person, any and all
shares, units representing interests, participations, rights in or other
equivalents (however designated) of such Person's capital stock, including,
with respect to partnerships, partnership interests (whether general or
limited) and any other interest or participation that confers upon a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, such partnership, and any rights (other than debt securities
convertible into capital stock), warrants or options exchangeable for or
convertible into such capital stock.
"Capitalized Lease Obligation" shall mean any rental obligation which
under GAAP would be required to be capitalized on the books of the Company or
any of its Subsidiaries, taken at the amount thereof accounted for as
indebtedness (net of interest expense) in accordance with such principles.
"Cash Equivalents" shall have the meaning set forth in Section
6E(iii).
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et seq., as the
same may be amended from time to time.
"Certificates and Stock Powers" shall mean certificates representing
shares of Capital Stock included in the Collateral and proper stock powers with
respect thereto duly endorsed in blank.
"Change of Control" shall mean the acquisition by any Person or group
of related persons (as such terms are defined in the Exchange Act) (other than
the Current Management or group of related persons (as so defined) including
the Current Management) of beneficial ownership of more than 50% of the Units.
"Closing" shall mean the Initial Closing or a Supplemental Closing.
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"Closing Date" shall mean the Initial Closing Date or a Supplemental
Closing Date.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Collateral" shall have the meaning specified in the Security
Agreement; provided, however, that Collateral shall not include for any purpose
under this Agreement or any other Financing Document any property subject to a
Lien incurred pursuant to clause (i), (vii) or (viii) of Section 6C or any
renewals of any such Lien pursuant to clause (xv) of Section 6C, unless the
Indebtedness secured by such Lien shall have been paid or discharged.
"Collateral Agent" shall mean Wilmington Trust Company, in its
capacity as Collateral Agent under the Intercreditor Agreement and under the
Security Agreement (together with its successors as such in such capacities).
"Commission" shall mean the United States Securities and Exchange
Commission.
"Common Units" shall mean common units representing a limited
partnership interest in the Master Partnership and the Company on a combined
basis.
"Company" shall have the meaning specified in the opening paragraph
hereof.
"Consolidated Debt Service" shall mean, as of any date of
determination, the total amount payable by the Company and its Subsidiaries on
a consolidated basis during the four consecutive calendar quarters next
succeeding the date of determination, in respect of scheduled principal and
interest payments with respect to Indebtedness of the Company and its
Subsidiaries outstanding on such date of determination, after giving effect to
any Indebtedness proposed on such date to be incurred and to the substantially
concurrent repayment of any other Indebtedness (a) including actual payments
under Capitalized Lease Obligations, (b) assuming, in the case of Indebtedness
(other than Indebtedness referred to in clause (c) below) bearing interest at
fluctuating interest rates which cannot be determined in advance, that the rate
actually in effect on such date will remain in effect throughout such period,
(c) including only actual interest (but not principal) payments associated with
the Indebtedness incurred pursuant to Section 6B(ii) and Section 6B(v) during
the most recent four consecutive calendar quarters and (d) treating the
principal amount of all Indebtedness outstanding as of such date of
determination under a revolving credit or similar agreement (other than the
Indebtedness incurred pursuant to Section 6B(ii) and Section 6B(v)) as maturing
and becoming due and payable on the scheduled maturity date or dates thereof
(including the maturity of any payment required by any commitment reduction or
similar amortization provision), without regard to any provision permitting
such maturity date to be extended (except for such extensions as may be made in
the sole discretion of the borrower thereunder and without any conditions that
remain to be fulfilled by the borrower or waived by the lender thereunder). See
Section 10C.
"Consolidated EBITDA" shall mean, as of any date of determination for
any applicable period, (1) the sum of, without duplication, the amounts for
such period, taken as a single accounting period, of (a) Consolidated Net
Income and (b) to the extent deducted in the determination of Consolidated Net
Income, after excluding amounts attributable to minority
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interests in Subsidiaries and without duplication, (i) Consolidated Non-Cash
Charges, (ii) Consolidated Interest Expense and (iii) Consolidated Income Tax
Expense less (2) any non-cash items increasing Consolidated Net Income for such
period to the extent that such items constitute reversals of a Consolidated
Non-Cash Charge for a previous period and which were included in the
computation of Consolidated EBITDA for such previous period pursuant to the
provisions of the preceding clause (1). Consolidated EBITDA shall be calculated
after giving effect, on a pro forma basis and in accordance with GAAP, to,
without duplication, any Asset Sales or Asset Acquisitions (including without
limitation any Asset Acquisition giving rise to the need to make such
calculation as a result of the Company or one of its Subsidiaries incurring,
assuming or otherwise being liable for Acquired Debt) occurring during the
period commencing on the first day of such period to and including the date of
the transaction (the "Reference Period"), as if such Asset Sale or Asset
Acquisition occurred on the first day of the Reference Period; provided,
however, that Consolidated EBITDA generated by an acquired business or asset
shall be determined by the actual gross profit (revenues minus cost of goods
sold) of such acquired business or asset during the immediately preceding four
full fiscal quarters in the Reference Period minus the pro forma expenses that
would have been incurred by the Company and its Subsidiaries in the operation
of such acquired business or asset during such period computed on the basis of
personnel expenses for employees retained or to be retained by the Company and
its Subsidiaries in the operation of such acquired business or asset and
non-personnel costs and expenses incurred by the Company and its Subsidiaries
in the operation of the Company's business at similarly situated facilities of
the Company or any of its Subsidiaries (as determined in good faith by the
General Partner based upon reasonable assumptions). As used herein,
Consolidated EBITDA shall be determined (a) on the basis of 100% of that amount
for the period of the four most recent fiscal quarters ending on or prior to
the date of determination, or (b) 50% of that amount for the period of the
eight most recent fiscal quarters ending on or prior to the date of
determination, whichever is higher. See Section 10C.
"Consolidated Funded Indebtedness" shall mean, as of any date of
determination, the aggregate amount of Indebtedness of the Company and its
Subsidiaries outstanding on that date and maturing in more than 12 months,
including the Notes, the 1996 Senior Secured Notes and the 1997 Senior Secured
Notes and borrowings under the Acquisition Facility (including current
maturities of any such Indebtedness). Notwithstanding anything to the contrary
contained herein, Consolidated Funded Indebtedness shall not include borrowings
under the Revolving Working Capital Facility to the extent permitted hereby.
"Consolidated Income Tax Expense" shall mean, with respect to the
Company and its Subsidiaries, for any period, the provision for federal, state,
local and foreign income taxes of the Company and its Subsidiaries for such
period as determined on a consolidated basis in accordance with GAAP. See
Section 10C.
"Consolidated Interest Expense" shall mean, as of any date of
determination for any applicable period, without duplication, the sum of (i)
the interest expense of the Company and its Subsidiaries for such period as
determined on a consolidated basis in accordance with GAAP, including without
limitation (a) any amortization of debt discount, (b) the net cost under
Interest Rate Agreements, (c) the interest portion of any deferred payment
obligation, (d) all commissions, discounts and other fees and charges owed with
respect to letters of credit and
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bankers' acceptance financing and (e) all accrued interest, and (ii) the
interest component of Capitalized Lease Obligations paid, accrued or scheduled
to be paid or accrued by the Company and its Subsidiaries during such period as
determined on a consolidated basis in accordance with GAAP. In computing
Consolidated Interest Expenses for purposes of clause (ii) of Section 6A, the
applicable period for the determination thereof shall be the four most recent
fiscal quarters ending on or prior to the date of determination. See Section
10C.
"Consolidated Net Income" shall mean the net income of the Company and
its Subsidiaries, as determined on a consolidated basis in accordance with GAAP
and after provision for minority interests and as adjusted to exclude (i) net
after-tax extraordinary gains or losses, (ii) net after-tax gains or losses
attributable to Asset Sales, (iii) the net income or loss of any Person which
is not a Subsidiary of the Company and which is accounted for by the equity
method of accounting, provided that Consolidated Net Income shall include the
amount of cash dividends or distributions actually paid to the Company or any
Subsidiary of the Company, (iv) the net income or loss prior to the date of
acquisition of any Person combined with the Company or any Subsidiary of the
Company in a pooling of interest, (v) the net income of any Subsidiary of the
Company to the extent that dividends or distributions of such net income are
not at the date of determination permitted by the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or other
regulation and (vi) the cumulative effect of any changes in accounting
principles. See Section 10C.
"Consolidated Net Tangible Assets" shall mean, as of any date of
determination, the Total Assets of the Company and its Subsidiaries, minus the
net book value of all assets of the Company and its Subsidiaries (after
deducting any reserves applicable thereto) which would be shown as intangible
assets on a consolidated balance sheet of the Company and its Subsidiaries as
of such time prepared in accordance with GAAP. See Section 10C.
"Consolidated Net Worth" shall mean, with respect to any Person, as of
any date of determination, the total partners' capital (in the case of a
partnership) or stockholders' equity (in the case of a corporation) of such
Person at such date, as would be shown on a consolidated balance sheet of such
Person and its Subsidiaries, if any, prepared in accordance with GAAP.
See Section 10C.
"Consolidated Non-Cash Charges" shall mean with respect to the Company
and its Subsidiaries, for any period, the aggregate depreciation and
amortization, in each case reducing Consolidated Net Income of the Company and
its Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP. See Section 10C.
"Consolidated Pro Forma Maximum Debt Service" shall mean, as of any
date of determination, the maximum amount payable by the Company and its
Subsidiaries on a consolidated basis during all periods of four consecutive
calendar quarters, commencing with the calendar quarter in which such date of
determination occurs and ending on the latest final maturity date applicable to
any Series of Notes at the time outstanding, in respect of scheduled principal
and interest payments with respect to all Indebtedness of the Company and its
Subsidiaries outstanding on such date of determination, after giving effect to
any Indebtedness proposed on such date to be incurred and to the substantially
concurrent repayment of any other
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Indebtedness (a) including all payments under Capitalized Lease Obligations,
(b) assuming, in the case of Indebtedness (other than Indebtedness referred to
in clause (c) below) bearing interest at fluctuating interest rates which
cannot be determined in advance, that the rate actually in effect on such date
will remain in effect throughout such period, (c) including only actual
interest (but not principal) payments associated with the Indebtedness incurred
pursuant to Section 6B(ii) during the most recent four consecutive calendar
quarters and (d) treating the principal amount of all Indebtedness outstanding
as of such date of determination under a revolving credit or similar agreement
(other than the Indebtedness incurred pursuant to Section 6B(ii)) as maturing
and becoming due and payable on the scheduled maturity date or dates thereof
(including the maturity of any payment required by any commitment reduction or
similar amortization provision), without regard to any provision permitting
such maturity date to be extended (except for such extensions as may be made in
the sole discretion of the borrower thereunder and without any conditions that
remain to be fulfilled by the borrower or waived by the lender thereunder). See
Section 10C.
"Consolidated Tangible Net Worth" shall mean, with respect to any
Person, at any date of determination, the then Consolidated Net Worth of such
Person minus the net book value of all assets of such Person and its
Subsidiaries, if any (after deducting any reserves applicable thereto), which
would be shown as intangible assets on a consolidated balance sheet of such
Person and its Subsidiaries, if any, as of such time prepared in accordance
with GAAP. See Section 10C.
"Contracted Dollar" shall mean the sum of: (a) $50,000,000 (which is
the aggregate principal amount permitted with respect to the Acquisition
Facility and any Indebtedness incurred for any permitted purpose which
replaces, extends, renews, refunds or refinances any such Indebtedness); and
(b) $10,000,000 (which is the aggregate principal amount permitted with respect
to Indebtedness owing to sellers in Asset Acquisitions (in addition to
permitted Non-Compete Obligations)).
"Contribution Agreement" shall mean the Contribution Agreement, dated
June 15, 2000, by and among U.S. Propane, the Company and the Master
Partnership, as in effect on the Initial Closing Date.
"Control Event" shall mean:
(i) the execution of any written agreement to which the
Company or any Affiliate of the Company is a party which could
reasonably be expected to result in a Change of Control, or
(ii) the commencement (as such term is used in Rule 14d-2(a)
under the Exchange Act as in effect on the date of the Initial
Closing) of a tender offer by any person (as such term is used in
Section 13(d) and Section 14(d)(2) of the Exchange Act as in effect on
the date of the Initial Closing) or related person constituting a
group (as such term issued in Rule l3d-5 under the Exchange Act as in
effect on the date of the Initial Closing) for units which would
result in such person or group owning, directly or indirectly, more
than 50% of the outstanding Units.
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"Credit Agreement" shall mean the First Amended and Restated Credit
Agreement dated as of May 31, 1999 among the Company, the agents listed therein
and the financial institutions which are or become parties from time to time
thereto, evidencing the Acquisition Facility and the Revolving Working Capital
Facility, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with the terms thereof and hereof.
"Credit Agreement Amendment" shall mean the Third Amendment to the
First Amended and Restated Credit Agreement, dated the date hereof, among the
Company, the agents listed therein and other banks parties thereto.
"Current Management" shall mean not less than any two of the
following: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, H. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, together with the heirs of, and trusts for the benefit
of family members controlled by, any such executive manager.
"Debt Rating Event" shall mean, as of any date of determination, (i)
that the Notes, the 1997 Senior Secured Notes or the 1996 Senior Secured Notes
are rated less than BBB- by Fitch, Inc. (or comparably if such rating system is
changed), and (ii) in the event that Fitch, Inc. shall no longer rate the
Notes, the 1997 Senior Secured Notes or the 1996 Senior Secured Notes, that the
Notes, the 1997 Senior Secured Notes or the 1996 Senior Secured Notes are no
longer rated "2" or better by the National Association of Insurance
Commissioners (NAIC).
"Designated Current Managers" shall mean ▇.▇. ▇▇▇▇▇ and H. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, current executive officers of the General Partner, together with, in
the case of either such executive officer, the heirs of, and trusts for the
benefit of family members controlled by, such executive officer.
"Eligible Purchaser" shall mean any Initial Purchaser and such
additional institutional investors which are identified in writing to the
Purchasers on or prior to the Initial Closing Date and from time to time
thereafter; provided that the aggregate number of Eligible Purchasers shall not
at any time exceed ten.
"Environmental Laws" shall mean all applicable federal, state, local
and foreign laws, rules or regulations as amended from time to time, relating
to emissions, discharges, releases, threatened releases, removal, remediation
or abatement of pollutants, contaminants, chemicals or industrial, toxic or
hazardous substances or wastes into or in the environment (including without
limitation air, surface water, ground water or land), or otherwise used in
connection with the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, toxic or
hazardous substances or wastes, as defined under such applicable laws.
"Equity Interest" shall mean, with respect to any Person, any capital
stock issued by such Person, regardless of class or designation, or any limited
or general partnership interest in such Person, regardless of designation, and
all warrants, options, purchase rights, conversion or exchange rights, voting
rights, calls or claims of any character with respect thereto.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
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"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" shall mean (i) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Plan; (ii) the adoption of any amendment to a Plan that would require the
provision of security pursuant to Section 401(a)(29) of the Code or Section 307
of ERISA; (iii) the existence with respect to any Plan of an "accumulated
funding deficiency" (as defined in Section 412 of the Code or Section 302 of
ERISA), whether or not waived; (iv) the filing pursuant to Section 412(d) of
the Code or Section 303(d) of ERISA of an application for a waiver of the
minimum funding standard with respect to any Plan; (v) the incurrence of any
liability under Title IV of ERISA with respect to the termination of any Plan
or the withdrawal or partial withdrawal of the Company or any of its ERISA
Affiliates from any Plan or Multiemployer Plan; (vi) the receipt by the Company
or any ERISA Affiliate from the PBGC or a plan administrator of any notice
relating to the intention to terminate any Plan or Plans or to appoint a
trustee to administer any Plan; (vii) the receipt by the Company or any ERISA
Affiliate of any notice concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA; and (viii) the
occurrence of a "prohibited transaction" with respect to which the Company or
any of its Subsidiaries is a "disqualified person" (within the meaning of
Section 4975 of the Code) and with respect to which the Company or such
Subsidiary would be liable for the payment of an excise tax.
"Event of Default" shall mean any of the events specified in Section
7A, provided that there has been satisfied any requirement in connection with
such event for the giving of notice, or the lapse of time, or the happening of
any further condition, event or act, and "Default" shall mean any of such
events, whether or not any such requirement has been satisfied.
"Excess Proceeds" shall have the meaning set forth in Section 4C(iv).
"Excess Sale Proceeds" shall have the meaning set forth in Section
6G(iii)(c)(II).
"Excess Taking Proceeds" shall have the meaning set forth in Section
4C(ii).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Financing Documents" shall mean this Agreement and the Security
Documents.
"Financing Statements" shall mean proper financing statements (whether
Form UCC-1 or any other form that may be required by any jurisdiction) under
the Uniform Commercial Code of such jurisdictions, as may be necessary, or, in
the opinion of the Purchasers' special counsel, desirable to perfect the Liens
created by the Security Agreement.
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"Fourth Amendment Agreement" shall mean the Fourth Amendment
Agreement, dated the date hereof, among the Company and the holders of the 1996
Senior Secured Notes and the 1997 Senior Secured Notes named in Schedule 1
thereto.
"GAAP" shall have the meaning specified in Section 10C.
"General Partner" shall mean Heritage (or, if applicable, U.S.
Propane) in its capacity as general partner of the Company.
"Governmental Authority" shall mean any governmental agency,
authority, instrumentality or regulatory body, other than a court or other
tribunal, in each case whether federal, state, local or foreign.
"Guaranty" shall mean, with respect to any Person, any direct or
indirect liability, contingent or otherwise, of such Person with respect to any
Indebtedness of another, including, without limitation, any such obligation
directly or indirectly guaranteed, endorsed (otherwise than for collection or
deposit in the ordinary course of business) or discounted or sold with recourse
by such Person, or in respect of each such Person is otherwise directly or
indirectly liable, including, without limitation, any such obligation in effect
guaranteed by such Person through any agreement (contingent or otherwise) to
purchase, repurchase or otherwise acquire such obligation or any security
therefor, or to provide funds for the payment or discharge of such obligation
(whether in the form of loans, advances, stock purchases, capital contributions
or otherwise), or to maintain the solvency or any balance sheet or other
financial condition of the obligor of such obligation, or to make payment for
any products, materials or supplies or for any transportation or services
regardless of the non-delivery or non-furnishing thereof, in any such case if
the purpose or intent of such agreement is to provide assurance that such
obligation will be paid or discharged, or that any agreements relating thereto
will be complied with, or that the holders of such obligation will be protected
against loss in respect thereof. The amount of any Guaranty shall be equal to
the outstanding principal amount of the obligation guaranteed or such lesser
amount to which the maximum exposure of the guarantor shall have been
specifically limited.
"Hazardous Substance" shall mean any substance so designated pursuant
to CERCLA, asbestos, petroleum, urea formaldehyde insulation and petroleum
by-products (other than propane).
"Heritage" shall mean Heritage Holdings, Inc., a Delaware corporation.
"Indebtedness" shall mean, with respect to any Person, without
duplication,
(a) any indebtedness for borrowed money, all obligations upon
which interest charges are customarily paid and all obligations
evidenced by any bond, note, debenture or other similar instrument
which such Person has directly or indirectly created, incurred or
assumed;
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(b) all obligations of others secured by any Lien in respect
of property owned by such Person, whether or not such Person has
assumed or become liable for the payment of such indebtedness;
provided that the amount of such Indebtedness, if such Person has not
assumed the same or become liable therefor, shall in no event be
deemed to be greater than the fair market value from time to time of
the property subject to such Lien;
(c) any indebtedness, whether or not for borrowed money
(excluding trade payables and accrued expenses arising in the ordinary
course of business), with respect to which such Person has become
directly or indirectly liable and which represents the deferred
purchase price (or a portion thereof) or has been incurred to finance
the purchase price (or a portion thereof) of any property or service
or business acquired by such Person, whether by purchase,
consolidation, merger or otherwise;
(d) the principal component of any Capitalized Lease
Obligations to the extent such obligations would, in accordance with
GAAP, appear on a balance sheet of such Person;
(e) all Attributable Debt of such Person in respect of Sale
and Lease-Back Transactions not involving a Capitalized Lease
Obligation;
(f) all Redeemable Capital Stock of such Person valued at the
greater of its voluntary or involuntary maximum fixed repurchase price
plus accrued dividends;
(g) any Preferred Stock of any Subsidiary of such Person
valued at the liquidation preference thereof, or any mandatory
redemption payment obligations in respect thereof plus, in either
case, accrued dividends thereon;
(h) any indebtedness of the character referred to in clause
(a), (b), (c), (d), (e), (f) or (g) of this definition deemed to be
extinguished under GAAP but for which such Person remains legally
liable;
(i) any indebtedness of any other Person of the character
referred to in clause (a), (b), (c), (d), (e), (f), (g) or (h) of this
definition with respect to which the Person whose Indebtedness is
being determined has become liable by way of a Guaranty;
(j) all obligations, contingent or fixed, of such person as
an account party in respect of letters of credit (other than letters
of credit incurred in the ordinary course of business and consistent
with past practice);
(k) all liabilities of such Person in respect of unfunded
vested benefits under pension plans (determined on a net basis for all
such plans) and all asserted withdrawal liabilities of such Person or
a commonly controlled entity to a Multiemployer Plan;
(1) Swaps (other than Interest Rate Agreements);
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(m) all obligations of such Person in respect of bankers'
acceptances (other than in respect of accounts payable to suppliers
incurred in the ordinary course of business consistent with past
practice); and
(n) any amendment, supplement, modification, deferral,
renewal, extension or refunding of any liability of the types referred
to in clauses (a) through (m) above.
For purposes hereof, the "maximum fixed repurchase price" of any
Redeemable Capital Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Redeemable Capital Stock as if
such Redeemable Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Agreement and if such price
is based upon, or measured by, the fair market value of such Redeemable Capital
Stock, such fair market value shall be determined in good faith by the board of
directors or a similar governing body of the issuer of such Redeemable Capital
Stock.
"Initial Closing" shall have the meaning specified in Section 2A.
"Initial Closing Date" shall have the meaning specified in Section 2A.
"Initial Purchasers" shall have the meaning specified in the opening
paragraph hereof.
"Initial Purchaser Schedule" shall mean the Initial Purchaser Schedule
attached hereto.
"Intercreditor Agreement" shall mean the Intercreditor and Agency
Agreement dated as of June 28, 1996 among the Administrative Agent, the
purchasers listed on Schedule I attached thereto and the Collateral Agent, as
amended, supplemented or otherwise modified from time to time.
"Interest Rate Agreement" shall mean any fully matched interest rate
Swap entered into with the intent to protect the Company against fluctuations
in interest rates and entered into as a bona fide hedging arrangement and not
for purposes of investment or speculation.
"Investment" shall mean, as applied to any Person, any direct or
indirect purchase or other acquisition by such Person of stock or other
securities of any other Person, or any direct or indirect loan, advance or
capital contribution by such Person to any other Person, and any other item
which would be classified as an "investment" on a balance sheet of such Person
prepared in accordance with GAAP, including without limitation any direct or
indirect contribution by such Person of property or assets to a joint venture,
partnership or other business entity in which such Person retains an interest
(it being understood that a direct or indirect purchase or other acquisition by
such Person of assets of any other Person (other than stock or other
securities) shall not constitute an "Investment" for purposes of this Agreement
so long as such assets are all used in the Business). For the purposes of
Section 6E(v), the amount involved in Investments made during any period shall
be the aggregate cost to the Company and its Subsidiaries of all such
Investments made during such period, determined in accordance with GAAP, but
without regard to unrealized increases or decreases in value, or write-ups,
write-downs or write-offs, of such Investments and without regard to the
existence of any undistributed earnings or accrued
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interest with respect thereto accrued after the respective dates on which such
Investments were made, less any net return of capital realized during such
period upon the sale, repayment or other liquidation of such Investments
(determined in accordance with GAAP, but without regard to any amounts received
during such period as earnings (in the form of dividends not constituting a
return of capital, interest or otherwise) on such Investments or as loans from
any Person in whom such Investments have been made). See Section 10C.
"Investment Limit" shall have the meaning specified in Section 6E.
"Legal Requirement" shall mean any law, statute, ordinance, decree,
requirement, order, judgment, rule or regulation (or published official
interpretation of any of the foregoing by any Governmental Authority) of any
Governmental Authority.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, contractual deposit arrangement, lien (statutory or otherwise) or
charge of any kind (including any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, any lease in the nature
thereof, and the filing of or agreement to give any financing statement under
the Uniform Commercial Code of any jurisdiction) or any other type of
preferential arrangement for the purpose, or having the effect, of protecting a
creditor against loss or securing the payment or performance of an obligation.
"Lock-Up Period" shall mean, with respect to any Designated Current
Manager, the period from the date of the closing of the Proposed Reorganization
to the earlier to occur of (x) the third anniversary of such closing, and (y)
the first date on which such Designated Current Manager shall cease to be
employed by the General Partner, the Master Partnership or any of their
respective Affiliates.
"Master Partnership" shall mean Heritage Propane Partners, L.P., a
Delaware limited partnership.
"Material Adverse Effect" shall mean (a) a material adverse effect on
the business, assets or financial condition of the Company or the Company and
its Subsidiaries taken as a whole or (b) a material impairment of the ability
of the Company to perform any of its obligations under the Financing Documents
to which it is a party or the Notes or (c) a material adverse effect on the
enforceability of any of the Financing Documents.
"Memorandum" shall mean the memorandum dated July, 2000, prepared by
the Company for use in connection with its private placement of the Notes.
"Multiemployer Plan" shall mean a "multiemployer plan" as defined in
section 4001(a)(3) of ERISA.
"Net Proceeds" shall mean the proceeds of any sale of assets in the
form of cash or cash equivalents including payments in respect of deferred
payment obligations when received in the form of cash or cash equivalents net
of (i) brokerage commissions and other fees and expenses related to such sale,
(ii) provisions for any taxes payable as a result of such sale, (iii) amounts
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required to be paid to any Person (other than the Company or any Subsidiary of
the Company) owning a beneficial interest in the assets sold, (iv) appropriate
amounts to be provided by the Company or any Subsidiary of the Company, as the
case may be, as a reserve required in accordance with GAAP against any
liabilities associated with such sale of assets and retained by the Company or
any Subsidiary of the Company, as the case may be, after such sale and (v)
amounts required to be applied to the repayment of Indebtedness (other than the
Notes, the 1996 Senior Secured Notes, the 1997 Senior Secured Notes and amounts
due under the Revolving Working Capital Facility or Acquisition Facility)
secured by a Lien on the assets sold.
"1996 Senior Secured Notes" shall mean the 8.55% Senior Secured Notes
due June 30, 2011 issued and outstanding under and pursuant to that certain
Note Purchase Agreement dated as of June 25, 1996 among Heritage, the Company
and the institutional investors listed therein, as amended or supplemented from
time to time.
"1997 Senior Secured Notes" shall mean (a) the 7.17% Series A Senior
Secured Notes due November 19, 2009, (b) the 7.26% Series B Senior Secured
Notes due November 19, 2012, (c) the 6.50% Series C Senior Secured Notes due
▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇) the 6.59% Series D Senior Secured Notes due March 13, 2010
and (e) the 6.67% Series E Senior Secured Notes due March 13, 2013, in each
case, as issued and outstanding under and pursuant to that certain Note
Purchase Agreement dated as of November 19, 1997 among the Company and the
institutional investors listed therein, as amended or supplemented from time to
time.
"Non-Accepting Holders" shall have the meaning specified in Section
4D(i).
"Non-Compete Obligations" shall have the meaning specified in Section
6C(viii).
"Notes" shall have the meaning specified in Section 1.
"Officer's Certificate" shall mean, as to any corporation, a
certificate executed on its behalf by the Chairman of the Board of Directors
(if an officer) or its President or one of its Vice Presidents, and its
Treasurer, or Controller, or one of its Assistant Treasurers or Assistant
Controllers, and, as to the Master Partnership or the Company, a certificate
executed on behalf of the Master Partnership or the Company, as the case may
be, by its general partner in a manner which would qualify such certificate (a)
if such general partner were a corporation, as an Officer's Certificate of such
general partner hereunder or (b) if such general partner were a partnership or
other entity, as a certificate executed on its behalf by Persons authorized to
do so pursuant to the constituting documents of such partnership or other
entity.
"Parity Debt" shall mean (a) Indebtedness of the Company incurred in
accordance with clauses (i), (ii) and (iii) of Section 6B and (b) Additional
Parity Debt.
"Parity Debt Designation" shall mean the Additional Parity Debt
Agreement Designation(s) provided pursuant to Section 6 of the Intercreditor
Agreement with respect to the Notes.
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"Partnership Agreement" shall mean the Agreement of Limited
Partnership of the Company as in effect on the Initial Closing Date, and as the
same may from time to time be amended, supplemented or otherwise modified in
accordance with the terms thereof.
"Partnership Documents" shall mean the Agreement of Limited
Partnership of the Master Partnership and the Partnership Agreement, in each
case as in effect on the Initial Closing Date and as the same may from time to
time be amended, supplemented or otherwise modified in accordance with the
terms hereof and thereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
Governmental Authority succeeding to any of its functions.
"Permits" shall have the meaning specified in Section 8H.
"Permitted Banks" shall have the meaning specified in Section 6E.
"Person" shall mean and include an individual, partnership, a joint
venture, a corporation, a trust, an unincorporated organization and a
government or any department or agency thereof.
"Plan" shall mean any "employee pension benefit plan" as such term is
defined in Section 3 of ERISA (other than a Multiemployer Plan) subject to the
provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of
ERISA, and in respect of which the Company or any ERISA Affiliate is (or, if
such plan were terminated, would under Section 4069 of ERISA be deemed to be)
an "employer" as defined in Section 3(f) of ERISA.
"Preferred Stock" shall mean, as applied to the Capital Stock of any
Person, Capital Stock of any class or classes (however designated), which is
preferred as to the payment of distributions or dividends, or upon any
voluntary or involuntary liquidation or dissolution of such Person, over shares
or units of Capital Stock of any other class of such Person.
"Premium" shall mean the Yield Maintenance Amount and any premium
payable connection with a Change of Control.
"Priority Debt" shall mean as of any date of determination, the sum,
without duplication, of (i) Indebtedness of the Subsidiaries of the Company
(other than Indebtedness owed to the Company or another Wholly-Owned
Subsidiary), plus (ii) Indebtedness of the Company and its Subsidiaries secured
by Liens permitted by clauses (i) and (vii) of Section 6C and any renewals of
such Liens permitted by clause (xv) of Section 6C.
"Property" shall mean any interest in any kind of property or asset
whether real, personal, or mixed, or tangible or intangible.
"Proposed Reorganization" shall have the meaning set forth in the
introductory portion of the Third Amendment Agreement, dated as of May 31,
2000, with respect to that certain Note Purchase Agreement dated as of June 25,
1996 among Heritage, the Company and the institutional investors listed therein
and that certain Note Purchase Agreement dated as of November 19, 1997 among
the Company and the institutional investors listed therein.
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"Pro Rata Option" shall have the meaning specified in Section 4D(iii).
"PTCE" shall have the meaning specified in Section 9B.
"PUHCA" shall have the meaning specified in Section 8T.
"Purchaser Schedules" shall mean the Initial Purchaser Schedule and
the Supplemental Purchaser Schedules.
Purchasers" shall mean the Initial Purchasers and the Supplemental
Purchasers.
"QPAM Exemption" shall have the meaning specified in Section 9B.
"Redeemable Capital Stock" shall mean, as of any date of
determination, any shares of any class or series of Capital Stock, that, either
by the terms thereof, by the terms of any security into which such shares are
convertible or exchangeable or by contract or otherwise, are or upon the
happening of an event or passage of time would be, required to be redeemed
prior to the stated maturity with respect to the principal of any Note or are
redeemable at the option of the holder thereof at any time prior to the stated
maturity of any Note, or are convertible into or exchangeable for Indebtedness
at any time prior to the stated maturity of any Note.
"Required Holder(s)" shall mean the holder or holders of at least 51%
of the aggregate principal amount of the Notes, without regard to Series, from
time to time outstanding.
"Responsible Officer" shall mean the chief executive officer, chief
operating officer, chief financial officer or chief accounting officer of the
Company or any other officer of the Company involved principally in its
financial administration or its controllership function.
"Restricted Payment" shall mean any payment or other distribution,
direct or indirect, in respect of any partnership or other equity interest in
the Company, except a distribution payable solely in additional partnership or
other equity interests in the Company, and any payment, direct or indirect on
account of the redemption, retirement, purchase or other acquisition of any
partnership or other equity interest in the Company.
"Revolving Working Capital Facility" shall mean the $50,000,000
revolving credit facility of the Company provided for in the Credit Agreement
for working capital and other general partnership purposes not to exceed
$50,000,000 aggregate principal amount at any time outstanding.
"Sale and Lease-Back Transaction" shall mean, with respect to any
Person (a "Transferor"), any arrangement (other than between the Company and a
Wholly-Owned Subsidiary or between Wholly-Owned Subsidiaries) whereby (a)
property (the "Subject Property") has been or is to be disposed of by such
Transferor to any other Person with the intention on the part of such
Transferor of taking back a lease of such Subject Property pursuant to which
the rental payments are calculated to amortize the purchase price of such
Subject Property substantially over the useful life of such Subject Property,
and (b) such Subject Property is in fact so leased by such Transferor or an
Affiliate of such Transferor.
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"Securities Act" shall mean the Securities Act of 1933, as amended.
"Security Agreement" shall mean the Security Agreement dated as of
June 28, 1996 among Heritage, the Company and the Collateral Agent, as amended,
supplemented or otherwise modified from time to time.
"Security Documents" shall mean the Security Agreement, the
Certificates and Stock Powers and the Financing Statements.
"Series" shall have the meaning specified in Section 1.
"Series A Notes" shall have the meaning specified in Section 1A(i).
"Series A-F Notes" shall have the meaning specified in Section 1A(vi).
"Series B Notes" shall have the meaning specified in Section 1A(ii).
"Series C Notes" shall have the meaning specified in Section 1A(iii).
"Series D Notes" shall have the meaning specified in Section 1A(iv).
"Series E Notes" shall have the meaning specified in Section 1A(v).
"Series F Notes" shall have the meaning specified in Section 1A(vi).
"Significant Subsidiary Group" shall mean any Subsidiary of the
Company, or any group of Subsidiaries of the Company, which at any time of
determination account for (or in the case of a recently formed or acquired
Subsidiary would have so accounted for on a pro forma basis) more than 5% of
consolidated operating revenues of the Company and its Subsidiaries for the
fiscal year most recently ended or more than 5% of consolidated total assets of
the Company and its Subsidiaries as of the end of the most recently ended
fiscal quarter, in each case computed in accordance with GAAP.
"Source" shall have the meaning specified in Section 9B.
"Specified Entities" shall mean any one or more of the following
entities: (i) Atmos Energy Corporation, a Texas and Virginia corporation, (ii)
Piedmont Natural Gas Company, Inc., a North Carolina corporation, (iii) AGL
Resources, Inc., a Georgia corporation, and (iv) TECO Energy, Inc., a Florida
corporation, or a Successor to any entity referred to in clause (i), (ii),
(iii) or (iv) of this definition.
"Subordinated Units" shall mean subordinated units representing all of
the limited partnership interest in the Master Partnership not represented by
Common Units.
"Subsequent Notes" shall have the meaning specified in Section 1B.
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"Subsidiary" shall mean, with respect to any Person, any corporation,
limited liability company, partnership, joint venture, association, trust or
other entity of which (or in which) more than 50% of (a) the issued and
outstanding Capital Stock having ordinary voting power to elect a majority of
the board of directors of such corporation (irrespective of whether at the time
Capital Stock of any other class or classes of such corporation shall or might
have voting power upon the occurrence of any contingency), (b) the interests in
the capital or profits of such partnership, limited liability company, joint
venture or association with ordinary voting power to elect a majority of the
board of directors (or Persons performing similar functions) of such
partnership, limited liability company, joint venture or association, or (c)
the beneficial interests in such trust or other entity with ordinary voting
power to elect a majority of the board of trustees (or Persons performing
similar functions) of such trust or other entity, is at the time directly or
indirectly owned or controlled by such Person, by such Person and one or more
of its other Subsidiaries, or by one or more of such Person's other
Subsidiaries. For the purposes of any computation under Section 6A or clause
(xiii) of Section 6B, the defined terms Consolidated Debt Service, Consolidated
EBITDA, Consolidated Funded Indebtedness, Consolidated Interest Expense and
Consolidated Pro Forma Maximum Debt Service shall be calculated on the basis
that Bi-State is a Subsidiary of the Company, but only as long as the Company
shall own 50% or more of the interests in the capital or profits of Bi-State
with ordinary voting power to elect a majority of the board of directors (or
Persons performing similar functions) thereof.
"Successor" shall mean, with respect to a Specified Entity, any entity
in which the holders of the Capital Stock of such Specified Entity outstanding
immediately prior to a consolidation, acquisition or merger involving such
Specified Entity hold, directly or indirectly through Wholly-Owned
Subsidiaries, at least a majority of the Capital Stock immediately after such
consolidation, acquisition or merger.
"Supplemental Closing" shall have the meaning specified in Section 2B.
"Supplemental Closing Date" shall have the meaning specified in
Section 2B.
"Supplemental Note Purchase Agreement" shall have the meaning
specified in Section 2B.
"Supplemental Purchasers" shall have the meaning specified in Section
2B.
"Supplemental Purchaser Schedule" shall mean the schedule of
purchasers of any Series of Subsequent Notes which is attached to the
Supplemental Note Purchase Agreement relating to such Series.
"Swaps" shall mean, with respect to any Person, payment obligations
(fixed or contingent) with respect to interest rate swap agreements, interest
rate cap agreements, interest rate collar agreements, currency swaps and
similar obligations obligating such Person to make payments, whether
periodically or upon the happening of a contingency. For the purposes of this
Agreement, the amount of the obligation under any Swap shall be the amount
determined in respect thereof as of the end of the then most recently ended
fiscal quarter of such Person, based on the assumption that such Swap had
terminated at the end of such fiscal quarter, and in making
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such determination, if any agreement relating to such Swap provides for the
netting of amounts payable by and to such Person thereunder or if any such
agreement provides for the simultaneous payment of amounts by and to such
Person, then in each such case, the amount of such obligation shall be the net
amount so determined.
"Total Assets" shall mean, as of any date of determination, the
consolidated total assets of the Company and its Subsidiaries as would be shown
on a consolidated balance sheet of the Company and its Subsidiaries prepared in
accordance with GAAP as of that date. See Section 10C.
"Transferee" shall mean any direct or indirect transferee of all or
any part of any Note purchased by any Purchaser under this Agreement.
"Units" shall mean, collectively, the Common Units and the
Subordinated Units.
"Unused Proceeds Reserve" shall mean, as of any date of determination,
all amounts theretofore offered to prepay Parity Debt under Section
6G(iii)(c)(II) and to prepay Notes under Section 4C, the prepayment of which
was declined by the applicable lenders, less the portion of such amounts
theretofore applied by the Company to operations or capital expenditures in
connection with the conduct of the Company's business.
"Unutilized Taking Proceeds" shall mean, as of any date, any insurance
or condemnation proceeds (net of the reasonable costs of proceedings in
connection therewith and settlements in respect thereof) in excess of $100,000
with respect to any single occurrence that were received by the Company or any
of its Subsidiaries in respect of any damage, destruction, condemnation or
other taking of all or any portion of the properties or assets of the Company
or any of its Subsidiaries and that have not been reinvested by the Company or
any of its Subsidiaries within a period of twelve months after such receipt in
the restoration, modification or replacement of the properties or assets in
respect of which such insurance or condemnation proceeds were received.
"U.S. Propane" shall mean U.S. Propane L.P., a Delaware limited
partnership.
"U.S. Propane Acquisition" shall mean the acquisition by the Company
of certain Subsidiaries of U.S. Propane in accordance with the Contribution
Agreement and the other transactions contemplated thereby.
"Voting Stock" shall mean, with respect to any corporation, any shares
of stock of such corporation the holders of which are entitled under ordinary
circumstances to vote for the election of directors of such corporation
(irrespective of whether at the time stock of any other class or classes shall
have or might have voting power by reason of the happening of any contingency).
"Wholly-Owned" shall mean, as applied to any Subsidiary of any Person,
a Subsidiary at least 98% (by vote or value) of the outstanding Equity
Interests (other than directors' qualifying shares, if required by law) of all
classes, taken together as a whole, of which are at the time
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owned by such Person or by one or more of its Wholly-Owned Subsidiaries or by
such Person and one or more of its Wholly-Owned Subsidiaries.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
Section 10C. Accounting Principles, Terms and Determinations. (i) All
references in this Agreement to "generally accepted accounting principles" or
to "GAAP" shall be deemed to refer to generally accepted accounting principles
in effect in the United States at the time of application thereof, but subject
to the provisions of this Section 10C. Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all determinations with
respect to accounting matters hereunder shall be made, and all unaudited
financial statements and certificates and reports as to financial matters
required to be prepared hereunder shall be prepared in accordance with
generally accepted accounting principles, applied on a basis consistent with
the most recent audited consolidated financial statements of the Company and
its Subsidiaries delivered pursuant to clause (ii) of Section 5A or, if no such
statements have been so delivered, the most recent audited financial statements
referred to in clause (b)(i) of Section 8D.
(ii) All references herein to "the Company and its Subsidiaries" for
the purposes of computing the consolidated financial position, results of
operations or other balance sheet or financial statement items (including
without limitation the computation of, Available Cash, Consolidated Debt
Service, Consolidated EBITDA, Consolidated Income Tax Expense, Consolidated
Funded Indebtedness, Consolidated Interest Expense, Consolidated Net Income,
Consolidated Non-Cash Charges, Consolidated Pro Forma Maximum Debt Service and
Consolidated Total Assets) shall be deemed to include only the Company and its
Subsidiaries as separate legal entities and, unless otherwise provided herein,
shall not include the financial position, results of operations, cash flows or
other such items of any other Person, whether or not in any particular
instance, such accounting treatment would be in accordance with GAAP.
SECTION 11. MISCELLANEOUS.
Section 11A. Note Payments. The Company agrees that, so long as any
Purchaser shall hold any Note, it will make payments of principal of, interest
on and any Premium payable with respect to such Note, which comply with the
terms of this Agreement, by wire transfer of immediately available funds for
credit (not later than 12:00 noon, New York City time, on the date due) to such
Purchaser's account or accounts as specified in the Purchaser Schedule attached
hereto, or to a Supplemental Note Purchase Agreement, or such other account or
accounts in the United States as such Purchaser may designate in writing,
notwithstanding any contrary provision herein or in any Note with respect to
the place of payment, and without any requirement of presenting such Note for
payment. Each Purchaser agrees that, before disposing of any Note, such
Purchaser will make a notation thereon (or on a schedule attached thereto) of
all principal payments previously made thereon and of the date to which
interest thereon has been paid. The Company agrees to afford the benefits of
this Section 11A to any Transferee which shall have made the same agreement as
each Purchaser has made in this Section 11A.
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Section 11B. Expenses. The Company covenants and agrees, whether or
not the transactions contemplated hereby shall be consummated, to pay, and save
each Purchaser and any Transferee harmless against liability for the payment
of, all out-of-pocket expenses arising in connection with such transactions,
including without limitation or duplication all fees and expenses referred to
in Section 3I and (i) all document production and duplication charges and the
fees and expenses (including those incurred after any Closing) of not more than
one special counsel engaged by all of the Purchasers in connection with this
Agreement, and the transactions contemplated hereby and of any special counsel
employed by such Purchaser or such Transferee in connection with any subsequent
proposed modification of, or proposed consent under, this Agreement, whether or
not such proposed modification shall be effected or proposed consent granted,
(ii) the costs and expenses of the Collateral Agent, and (iii) the costs and
expenses, including attorneys' fees, incurred by such Purchaser or such
Transferee in obtaining or perfecting any security for the Notes, in enforcing
(or determining whether or how to enforce) any rights under this Agreement or
the Notes or the Security Documents or in responding to any subpoena or other
legal process or informal investigative demand issued in connection with this
Agreement or any Security Document or the transactions contemplated hereby or
by reason of such Purchaser's or such Transferee's having acquired any Note,
including without limitation costs and expenses incurred in any bankruptcy case
or a workout. The obligations of the Company under this Section 11B shall
survive the transfer of any Note or portion thereof or interest therein by any
Purchaser or any Transferee and the payment of any Note.
Section 11C. Consent to Amendments. (i) This Agreement may be amended,
and the Company may take any action herein prohibited, or omit to perform any
act herein required to be performed by it, if the Company shall obtain the
written consent to such amendment, action or omission to act of the Required
Holder(s) except that, without the written consent of the holder or holders of
all Notes at the time outstanding and affected thereby, no amendment to this
Agreement shall change the maturity of any Note, or change the principal of, or
the rate or time of payment of interest on or any Premium payable with respect
to any Note, or affect the time, amount or allocation of any prepayments, or
change the proportion of the principal amount of the Notes required with
respect to any consent, amendment, waiver or declaration, or change the
relative priority of the Notes in relation to any other Indebtedness of the
Company. Each holder of any Note at the time or thereafter outstanding shall be
bound by any consent authorized by this Section 11C, whether or not such Note
shall have been marked to indicate such consent but any Notes issued thereafter
may bear a notation referring to any such consent. No course of dealing between
the Company and the holder of any Note nor any delay in exercising any rights
hereunder or under any Note shall operate as a waiver of any rights of any
holder of such Note. As used herein and in the Notes, the term "this Agreement"
and references thereto shall mean this Agreement as it may from time to time be
amended or supplemented and, without limiting the generality of the foregoing,
shall include all Supplemental Note Purchase Agreements.
(ii) So long as there are any Notes outstanding, neither the Company
nor any of its Affiliates will submit a request to the holder of any Note for
any proposed waiver or amendment of any of the provisions of this Agreement or
the Notes unless each holder of Notes (irrespective of the amount of Notes then
owned by it) shall be informed thereof by the Company and shall be afforded the
opportunity of considering the same and shall be supplied by the Company with
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sufficient information to enable it to make an informed decision with respect
thereto. Neither the Company nor any of its Subsidiaries or Affiliates will,
directly or indirectly, pay or cause to be paid any remuneration, whether by
way of supplemental or additional interest fee or otherwise, to any holder of
Notes as consideration for or as inducement to entering into any waiver or
amendment of any of the terms and provisions of this Agreement or the Notes by
any holder of Notes unless such remuneration is concurrently offered, on the
same terms, ratably to each holder of Notes then outstanding even if such
holder did not consent to such waiver or amendment.
(iii) Any consent given pursuant to this Section 11C by a holder of a
Note which has (i) transferred or agreed to transfer all or a portion of its
Notes to the Company or any of its Affiliates and (ii) provided such consent as
a condition to such transfer shall be valid and binding only upon such holder.
Any amendment or waiver which becomes effective only with such consent (and the
consents of all other holders of the Notes which were acquired under the same
or similar conditions) shall be valid and binding only upon such holder or
holders, as the case may be.
Section 11D. Form, Registration, Transfer and Exchange of Notes; Lost
Notes. The Notes are issuable as registered notes without coupons in
denominations of at least $100,000 except as may be necessary to reflect any
principal amount less than or not evenly divisible by $100,000. The Company
shall keep at its principal office a register in which the Company shall
provide for the registration of Notes and of transfers of Notes. Upon surrender
for registration of transfer of any Note at the principal office of the
Company, the Company shall, at its expense within 5 Business Days, execute and
deliver one or more new Notes of the same Series and otherwise of like tenor
and of a like aggregate principal amount registered in the name of such
transferee or transferees. At the option of the holder of any Note, such Note
may be exchanged for other Notes of the same Series and otherwise of like tenor
and of any authorized denominations, of a like aggregate principal amount, upon
surrender of the Note to be exchanged at the principal office of the Company.
Whenever any Notes are so surrendered for exchange, the Company shall, at its
expense within 5 Business Days, execute and deliver the Notes which the holder
making the exchange is entitled to receive. Every Note surrendered for
registration of transfer or exchange shall be duly endorsed, or be accompanied
by a written instrument of transfer duly executed, by the holder of such Note
or such holder's attorney duly authorized in writing. Any Note or Notes issued
in exchange for any Note or upon transfer thereof shall carry the rights to
unpaid interest and interest to accrue which were carried by the Note so
exchanged or transferred, so that neither gain nor loss of interest shall
result from any such transfer or exchange. Upon receipt of written notice from
the holder of any Note of the loss, theft, destruction or mutilation of such
Note and, in the case of any such loss, theft or destruction, upon receipt of
such holder's unsecured indemnity agreement (or, in the case of any holder of a
Note other than an institutional investor, upon receipt of an indemnity bond in
such reasonable amount as the Company may determine), or in the case of any
such mutilation upon surrender and cancellation of such Note, the Company will
make and deliver a new Note, of like tenor, in lieu of the lost, stolen,
destroyed or mutilated Note within 5 Business Days.
Section 11E. Persons Deemed Owners; Participations. Prior to due
presentment for registration of transfer, the Company may treat the Person in
whose name any Note is registered
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as the owner and holder of such Note for the purpose of receiving payment of
principal of, interest on and any Premium payable with respect to such Note and
for all other purposes whatsoever, whether or not such Note shall be overdue,
and the Company shall not be affected by notice to the contrary. Subject to the
preceding sentence, the holder of any Note may from time to time grant
participations in such Note to any Person on such terms and conditions as may
be determined by such holder in its sole and absolute discretion, provided that
any such participation shall be in a principal amount of at least $100,000.
Section 11F. Survival of Representations and Warranties; Entire
Agreement. All representations and warranties contained herein or made in
writing by or on behalf of the Company in connection herewith shall survive the
execution and delivery of this Agreement (including any Supplemental Note
Purchase Agreement) and the Notes, the transfer by any Purchaser of any Note or
portion thereof or interest therein and the payment of any Note, and may be
relied upon by any Transferee, regardless of any investigation made at any time
by or on behalf of any Purchaser or any Transferee. Subject to the preceding
sentence, this Agreement and the Notes embody the entire agreement and
understanding between the Purchasers and the Company and supersede all prior
agreements and understandings relating to the subject matter hereof.
Section 11G. Successors and Assigns. All covenants and other
agreements in this Agreement (including any Supplemental Note Purchase
Agreement) contained by or on behalf of any of the parties hereto shall bind
and inure to the benefit of the respective successors and assigns of the
parties hereto (including, without limitation, any Transferee) whether so
expressed or not.
Section 11H. Disclosure to Other Persons. The Company acknowledges
that the holder of any Note may deliver copies of any financial statements and
other documents delivered to such holder, and disclose any other information
disclosed to such holder, by or on behalf of the Company or any of its
Subsidiaries in connection with or pursuant to this Agreement to (i) such
holder's directors, trustees, officers, employees, agents and professional
consultants, (ii) any other holder of any Note, (iii) any Person to which such
holder offers to sell such Note or any part thereof, (iv) any Person to which
such holder sells or offers to sell a participation in all or any part of such
Note, (v) any Person from which such holder offers to purchase any security of
the Company, (vi) any federal or state regulatory authority having jurisdiction
over such holder, (vii) the National Association of Insurance Commissioners or
any similar organization or (viii) any other Person to which such delivery or
disclosure may be necessary or appropriate (a) in compliance with any law,
rule, regulation or order applicable to such holder, (b) in response to any
subpoena or other legal process or informal investigative demand, (c) in
connection with any litigation to which such holder is a party or (d) in
connection with the enforcement (or attempted enforcement) of any of the
Financing Documents. Each Purchaser agrees (and any Transferee which avails
itself of the benefits of Section 5A(iii) or (xii) or Section 5C shall be
deemed to have likewise agreed) (such Purchaser and any such Transferee each
herein called a "Holder") to hold in confidence in accordance with its internal
corporate practice for treating confidential information received from third
parties and not disclose any information (other than information (a) which was
publicly known or otherwise known to such Holder at the time of disclosure
(except pursuant to disclosure in connection with this Agreement), (b) which
subsequently
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becomes publicly known through no act or omission by such Holder, or (c) which
otherwise becomes known to such Holder, other than through disclosure by the
Company or any of its Subsidiaries) delivered or made available by or on behalf
of the Company or any of its Subsidiaries to such Holder (including without
limitation any nonpublic information obtained pursuant to Section 5A or 5C) in
connection with or pursuant to this Agreement which is clearly marked or
labeled as being confidential information, provided that nothing herein shall
prevent the holder of any Note from disclosing such information as provided in
the preceding sentence.
Section 11I. Notices. All written communications provided for
hereunder shall be sent by first class mail or nationwide overnight delivery
service (with charges prepaid) and by telecopy (such delivery confirmed by
telephone) and (i) if to any Purchaser, addressed to such Purchaser at the
address (or facsimile telephone number) specified for such communications in
the Purchaser Schedule attached hereto or to a Supplemental Note Purchase
Agreement, or at such other address (or facsimile telephone number) as such
Purchaser shall have specified to the Company in writing, (ii) if to any other
holder of any Note, addressed to such other holder at such address (or
facsimile telephone number) as such other holder shall have specified to the
Company in writing or, if any such other holder shall not have so specified an
address to the Company, then addressed to such other holder in care of the last
holder of such Note which shall have so specified an address to the Company,
(iii) if to the Company, to Heritage Operating, L.P., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Financial Officer, telephone
no.: (▇▇▇) ▇▇▇-▇▇▇▇; facsimile no.: (▇▇▇) ▇▇▇-▇▇▇▇, or at such other address
(or telephone or facsimile number) as the Company shall have specified to the
holder of each Note in writing.
Section 11J. Substitution of Wholly-Owned Subsidiary. With respect to
the Notes being purchased by any institutional investor, such Purchaser shall
have the right to substitute one of its Wholly-Owned Subsidiaries as the
purchaser of any of the Notes to be purchased by such Purchaser hereunder, by
written notice delivered to the Company, which notice shall be signed by such
Purchaser and such Subsidiary, shall contain such Subsidiary's agreement to be
bound by this Agreement and shall contain a confirmation by such Subsidiary of
the accuracy with respect to it of the representations contained in Section 9,
provided that such confirmation may contain a statement to the effect that such
Subsidiary shall at all times have the right to transfer the Notes being
purchased by it to such Purchaser. The Company agrees that, upon receipt of any
such notice, whenever the terms "Purchaser" and "holder" are used in this
Agreement (other than this Section 11J), in reference to such transferring
Purchaser, such terms shall be deemed to refer to such Subsidiary in lieu of
said transferring Purchaser. In the event that such Subsidiary is so
substituted hereunder and thereafter transfers its Notes or any portion thereof
to such transferring Purchaser, upon receipt by the Company of notice of such
transfer, whenever the terms "Purchaser" and "holder" are used in this
Agreement (other than in this Section 11J) in reference to such transferring
Purchaser, such terms shall be deemed to refer to such transferring Purchaser
to the extent it owns all or any portion of the Notes, and such transferring
Purchaser and such Subsidiary to such extent shall each have all the rights of
any original Purchaser of Notes under this Agreement.
Section 11K. Payments Due on Non-Business Days. Anything in this
Agreement or the Notes to the contrary notwithstanding, any payment of
principal of or interest on any Note that is
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due on a date other than a Business Day shall be made on the next succeeding
Business Day. If the date for any payment is extended to the next succeeding
Business Day by reason of the preceding sentence, the period of such extension
shall be included in the computation of the interest payable on such Business
Day.
Section 11L. Satisfaction Requirement. If any agreement, certificate
or other writing, or any action taken or to be taken, is by the terms of this
Agreement required to be satisfactory to any Purchaser or to the Required
Holder(s), the determination of such satisfaction shall be made by such
Purchaser or the Required Holder(s), as the case may be, in the sole and
exclusive judgment (exercised in good faith) of the Person or Persons making
such determination.
Section 11M. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED
BY, THE LAW OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PRINCIPLES.
Section 11N. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 11O. Descriptive Headings. The descriptive headings of the
several Sections of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
Section 11P. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original but all of which
together shall constitute one instrument.
Section 11Q. Severalty of Obligations. The sales of Notes to the
Purchasers are to be several sales, and the obligations of the Purchasers under
this Agreement are several obligations. Except as provided in Section 3G, no
failure by any Purchaser to perform its obligations under this Agreement shall
relieve any other Purchaser or the Company of any of its obligations hereunder,
and no Purchaser shall be responsible for the obligations of, or any action
taken or omitted by, any other Purchaser hereunder.
Section 11R. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER, OR IN
CONNECTION WITH THIS AGREEMENT, ANY EXHIBIT HERETO OR ANY FINANCING DOCUMENT,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING OR STATEMENTS (WHETHER ORAL OR
WRITTEN) MADE HEREIN BY THE PARTIES.
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The execution hereof by the Initial Purchasers shall constitute a
contract among the Company and the Initial Purchasers for the uses and purposes
hereinabove set forth.
HERITAGE OPERATING, L.P.
By Heritage Holdings, Inc., General Partner
By
-----------------------------------------
Its
Accepted as of August 10, 2000
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SIGNATURE PAGE TO THE NOTE PURCHASE AGREEMENT
The foregoing Agreement is
hereby accepted as of the
date first above written.
▇▇▇▇ ▇▇▇▇▇▇▇ LIFE INSURANCE COMPANY
By:
--------------------------------
Name:
Title:
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SIGNATURE PAGE TO THE NOTE PURCHASE AGREEMENT
The foregoing Agreement is
hereby accepted as of the
date first above written.
▇▇▇▇ ▇▇▇▇▇▇▇ VARIABLE LIFE INSURANCE COMPANY
By:
--------------------------------
Name:
Title:
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SIGNATURE PAGE TO THE NOTE PURCHASE AGREEMENT
The foregoing Agreement is
hereby accepted as of the
date first above written.
MELLON BANK, N.A., solely in its capacity as Trustee for the ▇▇▇▇ Atlantic
Master Trust (as directed by ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company), and not in
its individual capacity
By:
--------------------------------
Name:
Title:
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SIGNATURE PAGE TO THE NOTE PURCHASE AGREEMENT
The foregoing Agreement is
hereby accepted as of the
date first above written.
MELLON BANK, N.A., solely in its capacity as Trustee for the Long-Term
Investment Trust (as directed by ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company), and not
in its individual capacity
By:
--------------------------------
Name:
Title:
87
89
SIGNATURE PAGE TO THE NOTE PURCHASE AGREEMENT
The foregoing Agreement is
hereby accepted as of the
date first above written.
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
By: CIGNA Investments, Inc. (authorized agent)
By:
--------------------------------
Name:
Title:
88
90
SIGNATURE PAGE TO THE NOTE PURCHASE AGREEMENT
The foregoing Agreement is
hereby accepted as of the
date first above written.
LIFE INSURANCE COMPANY OF NORTH AMERICA
By: CIGNA Investments, Inc. (authorized agent)
By:
--------------------------------
Name:
Title:
89
91
SIGNATURE PAGE TO THE NOTE PURCHASE AGREEMENT
The foregoing Agreement is
hereby accepted as of the
date first above written.
CLARICA LIFE INSURANCE COMPANY-U.S.
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
90
92
SIGNATURE PAGE TO THE NOTE PURCHASE AGREEMENT
The foregoing Agreement is
hereby accepted as of the
date first above written.
▇▇ ▇▇▇▇▇▇ LIFE INSURANCE COMPANY
By:
--------------------------------
Name:
Title:
91
93
SIGNATURE PAGE TO THE NOTE PURCHASE AGREEMENT
The foregoing Agreement is
hereby accepted as of the
date first above written.
THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA
By:
--------------------------------
Name:
Title:
92
94
SIGNATURE PAGE TO THE NOTE PURCHASE AGREEMENT
The foregoing Agreement is
hereby accepted as of the
date first above written.
METROPOLITAN LIFE INSURANCE COMPANY
By:
--------------------------------
Name:
Title:
93
95
SIGNATURE PAGE TO THE NOTE PURCHASE AGREEMENT
The foregoing Agreement is
hereby accepted as of the
date first above written.
NATIONWIDE LIFE INSURANCE COMPANY
By:
--------------------------------
Name:
Title:
94
96
SIGNATURE PAGE TO THE NOTE PURCHASE AGREEMENT
The foregoing Agreement is
hereby accepted as of the
date first above written.
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY
By:
--------------------------------
Name:
Title:
95
97
SIGNATURE PAGE TO THE NOTE PURCHASE AGREEMENT
The foregoing Agreement is
hereby accepted as of the
date first above written.
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY
By:
--------------------------------
Name:
Title:
96
98
SIGNATURE PAGE TO THE NOTE PURCHASE AGREEMENT
The foregoing Agreement is
hereby accepted as of the
date first above written.
NATIONWIDE MUTUAL INSURANCE COMPANY
By:
--------------------------------
Name:
Title:
97
99
SIGNATURE PAGE TO THE NOTE PURCHASE AGREEMENT
The foregoing Agreement is
hereby accepted as of the
date first above written.
PACIFIC LIFE INSURANCE COMPANY
By:
--------------------------------
Name:
Title:
98
100
SIGNATURE PAGE TO THE NOTE PURCHASE AGREEMENT
The foregoing Agreement is
hereby accepted as of the
date first above written.
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Capital Management, LLC
a Delaware limited liability company
its authorized signatory
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
99
101
SIGNATURE PAGE TO THE NOTE PURCHASE AGREEMENT
The foregoing Agreement is
hereby accepted as of the
date first above written.
COMMERCIAL UNION LIFE INSURANCE COMPANY OF AMERICA
By: Principal Capital Management, LLC
a Delaware limited liability company
its authorized signatory
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
100
102
SIGNATURE PAGE TO THE NOTE PURCHASE AGREEMENT
The foregoing Agreement is
hereby accepted as of the
date first above written.
RELIASTAR LIFE INSURANCE COMPANY OF NEW YORK
By:
--------------------------------
Name:
Title:
101
103
SIGNATURE PAGE TO THE NOTE PURCHASE AGREEMENT
The foregoing Agreement is
hereby accepted as of the
date first above written.
RELIASTAR LIFE INSURANCE COMPANY
By:
--------------------------------
Name:
Title:
102
104
SIGNATURE PAGE TO THE NOTE PURCHASE AGREEMENT
The foregoing Agreement is
hereby accepted as of the
date first above written.
NORTHERN LIFE INSURANCE COMPANY
By:
--------------------------------
Name:
Title:
103
105
SIGNATURE PAGE TO THE NOTE PURCHASE AGREEMENT
The foregoing Agreement is
hereby accepted as of the
date first above written.
SUN LIFE ASSURANCE COMPANY OF CANADA
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
104
106
SIGNATURE PAGE TO THE NOTE PURCHASE AGREEMENT
The foregoing Agreement is
hereby accepted as of the
date first above written.
SUN LIFE INSURANCE AND ANNUITY COMPANY OF NEW YORK
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
105
107
SIGNATURE PAGE TO THE NOTE PURCHASE AGREEMENT
The foregoing Agreement is
hereby accepted as of the
date first above written.
SUN LIFE ASSURANCE COMPANY OF CANADA (U.S.)
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
106
108
INITIAL PURCHASER SCHEDULE
SERIES AND PRINCIPAL AMOUNT
NAME OF PURCHASER OF NOTES BEING PURCHASED
----------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ LIFE INSURANCE COMPANY SERIES PRINCIPAL AMOUNT
------ ----------------
(1) All payments on account of the Notes or other RHF-1 $25,000,000
obligations in accordance with the provisions thereof (General Account)
shall be made by bank wire transfer of immediately
available funds for credit, not later than 12 noon,
Boston time, to: RHF-2 $ 3,000,000
(Closed Block)
BankBoston
ABA No. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Account of: ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
Private Placement Collection Account
Account No.: 541-55417
On Order of: Heritage Operating, L.P.
PPN Number:
[Full name, interest rate and maturity date of the
Notes or other obligations]
(2) Contemporaneous with the above wire transfer,
advice setting forth:
(a) the full name, interest rate and maturity date of
the Notes or other obligations;
(b) allocation of payment between principal and
interest and any special payment; and
(c) name and address of Bank (or Trustee) from
which wire transfer was sent shall be delivered or
faxed AND mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager, Investment Accounting
Division B-3
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
P-1
109
(3) All notices with respect to prepayments, both
scheduled and unscheduled, whether partial or in full,
and notice of maturity shall be delivered or faxed
AND mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager, Investment Accounting
Division B-3
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Law Division, T-50
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(4) All other communications which shall include, but not
be limited to, financial statements and certificates of
compliance with financial covenants, shall be
delivered or faxed AND mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Bond and Corporate Finance Group, T-57
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(5) A copy of any notices relating to change in issuer's
name, address or principal place of business or
location of collateral and a copy of any legal opinions
shall be delivered or faxed AND mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Law Division, T-50
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(6) Tax I.D. No.: ▇▇-▇▇▇▇▇▇▇
P-2
110
(7) All Notes are to be sent for receipt the day after the
closing to:
▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇ Financial Services, Inc.
Investment Law
▇▇▇▇ ▇▇▇▇▇▇▇ Place
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(8) Promptly after the closing (but no later than one week
thereafter), one (1) fully executed original counterpart
of the Purchase Agreement (i.e. Note Purchase
Agreement, Securities Purchase Agreement, Loan
Agreement, Participation Agreement, etc.) is to be
sent to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Law Paralegal Unit, T-50,
▇▇▇▇ ▇▇▇▇▇▇
(9) Regardless of the number of ▇▇▇▇▇▇▇ and/or advisory
accounts involved in this transaction, promptly after
the closing (but no later than 2 months thereafter) we
require one (1) set of original closing documents
AND five (5) sets of conformed copies of the
principal operative documents are to be sent to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Law Paralegal Unit, T-50,
▇▇▇▇ ▇▇▇▇▇▇
Please note original closing documents are to contain
copies or original acknowledgement copies where
▇▇▇▇ ▇▇▇▇▇▇▇ is the secured party of record of all
filed and recorded UCC filings showing the filing and
recording information. In addition, where there are
more than five (5) UCC filings, a summary memo
setting forth the filing and recording information
should also be provided.
P-3
111
SERIES AND PRINCIPAL AMOUNT
NAME OF PURCHASER OF NOTES BEING PURCHASED
----------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ VARIABLE LIFE INSURANCE COMPANY SERIES PRINCIPAL AMOUNT
------ ----------------
(1) All payments on account of the Notes or other RHF-3 $1,000,000
obligations in accordance with the provisions thereof
shall be made by bank wire transfer of immediately
available funds for credit, not later than 12 noon,
Boston time, to:
BankBoston
ABA No. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Account of: ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
Private Placement Collection Account
Account No.: 541-55417
On Order of: Heritage Operating, L.P.
PPN Number:
[Full name, interest rate and maturity date of the
Notes or other obligations]
(2) Contemporaneous with the above wire transfer,
advice setting forth:
(a) the full name, interest rate and maturity date of
the Notes or other obligations;
(b) allocation of payment between principal and
interest and any special payment; and
(c) name and address of Bank (or Trustee) from
which wire transfer was sent shall be delivered or
faxed AND mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Variable Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager, Investment Accounting
Division B-3
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
P-4
112
(3) All notices with respect to prepayments, both
scheduled and unscheduled, whether partial or in full,
and notice of maturity shall be delivered or faxed
AND mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Variable Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager, Investment Accounting
Division B-3
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Law Division, T-50
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(4) All other communications which shall include, but not
be limited to, financial statements and certificates of
compliance with financial covenants, shall be
delivered or faxed AND mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Bond and Corporate Finance Group, T-57
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(5) A copy of any notices relating to change in issuer's
name, address or principal place of business or
location of collateral and a copy of any legal opinions
shall be delivered or faxed AND mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Law Division, T-50
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(6) Tax I.D. No.: ▇▇-▇▇▇▇▇▇▇
P-5
113
(7) All Notes are to be sent for receipt the day after the
closing to:
▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇ Financial Services, Inc.
Investment Law
▇▇▇▇ ▇▇▇▇▇▇▇ Place
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(8) Promptly after the closing (but no later than one week
thereafter), one (1) fully executed original counterpart
of the Purchase Agreement (i.e. Note Purchase
Agreement, Securities Purchase Agreement, Loan
Agreement, Participation Agreement, etc.) is to be
sent to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Law Paralegal Unit, T-50,
▇▇▇▇ ▇▇▇▇▇▇
(9) Regardless of the number of ▇▇▇▇▇▇▇ and/or advisory
accounts involved in this transaction, promptly after
the closing (but no later than 2 months thereafter) we
require one (1) set of original closing documents
AND five (5) sets of conformed copies of the
principal operative documents are to be sent to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Law Paralegal Unit, T-50,
▇▇▇▇ ▇▇▇▇▇▇
Please note original closing documents are to contain
copies or original acknowledgement copies where
▇▇▇▇ ▇▇▇▇▇▇▇ is the secured party of record of all
filed and recorded UCC filings showing the filing and
recording information. In addition, where there are
more than five (5) UCC filings, a summary memo
setting forth the filing and recording information
should also be provided.
P-6
114
SERIES AND PRINCIPAL AMOUNT
NAME OF PURCHASER OF NOTES BEING PURCHASED
----------------------------------------------------------------------------------------------------------------------------
MELLON BANK, N.A., TRUSTEE FOR THE ▇▇▇▇ ATLANTIC MASTER TRUST SERIES PRINCIPAL AMOUNT
------ ----------------
(1) All payments on account of the Notes or other RHF-4 $2,000,000
obligations in accordance with the provisions thereof
shall be made by bank wire transfer of immediately
available funds for credit, not later than 12 noon,
Boston time, to:
Federal Reserve Bank of Boston
A/C Boston Safe Deposit and Trust Company
ABA No. ▇▇▇▇▇▇▇▇▇
DDA: 125261
Reference: ▇▇▇▇ Atlantic Master Trust:
NYXF 1783332
[Full name, interest rate and maturity date of the Notes or other
obligations]
(2) Contemporaneous with the above wire transfer,
advice setting forth:
(a) the full name, interest rate and maturity date of
the Notes or other obligations;
(b) allocation of payment between principal, interest
and any special payment; and
(c) name and address of Bank (or Trustee) from
which wire transfer was sent, shall be delivered or
faxed AND mailed to:
Mellon Bank, N.A.
Three Mellon Bank Center, Room 153-3610
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Principal & Interest Unit
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
P-7
115
(3) All notices with respect to prepayments, both
scheduled and unscheduled, whether partial or in full,
and notice of maturity shall be delivered or faxed
AND mailed to:
Mellon Bank, N.A.
Three Mellon Bank Center, Room 153-3610
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Principal & Interest Unit
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Mellon Bank, N.A.
One Mellon Bank Center, Room 3346
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(4) All other communications shall be delivered or faxed
AND mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Bond and Corporate Finance
Group, T-57
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Mellon Bank, N.A.
One Mellon Bank Center, Room 151-1935
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(5) A copy of any notices relating to change in issuer's
name, address or principal place of business or
location of collateral and a copy of any legal opinions
shall be delivered or faxed AND mailed to:
P-8
116
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Law Division, T-50
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(6) Tax I.D. No.: ▇▇-▇▇▇▇▇▇▇
(7) All Notes are to be sent the day after the closing to:
Mellon Securities Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇ Teller Window
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Ref.: ▇▇▇▇ Atlantic Master Trust
Account No. NYXF ▇▇▇▇▇▇▇
(8) Promptly after the closing (but no later than one week
thereafter), one (1) fully executed original counterpart
of the Purchase Agreement (i.e. Note Purchase
Agreement, Securities Purchase Agreement, Loan
Agreement, Participation Agreement, etc.) is to be
sent to:
Mellon Bank, N.A.
One Mellon Bank Center, Room 151-1935
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
(9) Promptly after closing (but no later than 2 months
thereafter), one (1) set of original closing documents
and four (4) sets of conformed copies of the principal
operative documents are to be sent to:
Mellon Bank, N.A.
One Mellon Bank Center, Room 151-1935
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
P-9
117
SERIES AND PRINCIPAL AMOUNT
NAME OF PURCHASER OF NOTES BEING PURCHASED
----------------------------------------------------------------------------------------------------------------------------
MELLON BANK, N.A., TRUSTEE UNDER THE LONG-TERM INVESTMENT TRUST DATED SERIES PRINCIPAL AMOUNT
OCTOBER 1, 1996 ------ ----------------
(1) All payments on account of the Notes or other RHF-5 $2,000,000
obligations in accordance with the provisions thereof
shall be made by bank wire transfer of immediately
available funds for credit, not later than 12 noon,
Boston time, to:
Federal Reserve Bank of Boston
A/C Boston Safe Deposit & Trust Company
ABA No. ▇▇▇▇▇▇▇▇▇
DDA: 125261
Reference: ATTF 1791682
[Full name, interest rate and maturity date of the
Notes or other obligations]
(2) Contemporaneous with the above wire transfer,
advice setting forth:
(a) the full name, interest rate and maturity date of
the Notes or other obligations;
(b) allocation of payment between principal and
interest and any special payment; and
(c) name and address of Bank (or Trustee) from
which wire transfer was sent, shall be delivered or
faxed AND mailed to:
Mellon Bank, N.A.
Three Mellon Bank Center, Room 153-3610
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Principal & Interest Unit
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
P-10
118
(3) All notices with respect to prepayments, both
scheduled and unscheduled, whether partial or in full,
and notice of maturity shall be delivered or faxed
AND mailed to:
Mellon Bank, N.A.
Three Mellon Bank Center, Room 153-3610
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Principal & Interest Unit
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(4) All other communications shall be delivered or faxed AND mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Bond and Corporate Finance
Group, T-57
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Mellon Bank, N.A.
One Mellon Bank Center, Room 151-1935
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(5) A copy of any notices relating to change in issuer's
name, address or principal place of business or
location of collateral and a copy of any legal opinions
shall be delivered or faxed AND mailed to:
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Law Division, T-50
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(6) Tax I.D. No.: ▇▇-▇▇▇▇▇▇▇
P-11
119
(7) All Notes are to be sent the day after the closing to:
Mellon Securities Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇ Teller Window
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Ref.: The Long-Term Investment Trust
Account No. ATTF ▇▇▇▇▇▇▇
(8) Promptly after the closing (but no later than one week
thereafter), one (1) fully executed original counterpart
of the Purchase Agreement (i.e. Note Purchase
Agreement, Securities Purchase Agreement, Loan
Agreement, Participation Agreement, etc.) is to be
sent to:
Mellon Bank, N.A.
One Mellon Bank Center, Room 151-1935
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
(9) Promptly after closing (but no later than 2 months
thereafter), one (1) set of original closing documents
and four (4) sets of conformed copies of the principal
operative documents are to be sent to:
Mellon Bank, N.A.
One Mellon Bank Center, Room 151-1935
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
P-12
120
SERIES AND PRINCIPAL AMOUNT
NAME OF PURCHASER OF NOTES BEING PURCHASED
----------------------------------------------------------------------------------------------------------------------------
CLARICA LIFE INSURANCE COMPANY-U.S. SERIES PRINCIPAL AMOUNT
------ ----------------
(1) All payments on account of the Notes shall be made RHA-1 $3,000,000
by wire or intrabank transfer of immediately available funds to:
▇▇▇▇▇ Fargo Bank Minnesota, N.A.
ABA No. ▇▇▇▇▇▇▇▇▇
Beneficiary Account No. ▇▇▇▇▇▇▇▇▇▇
Beneficiary Account Name: Trust Wire Clearing
OBI FCC: I.C. 12250600 Heritage Operating, L.P.
PPN:
P=
I=
End Balance=
(2) All notices in respect of payment shall be delivered to:
Clarica Life Insurance Company-U.S.
c/o Clarica U.S. Inc.
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(3) All other communications shall be delivered to:
Clarica Life Insurance Company-U.S.
c/o Clarica U.S. Inc.
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(4) Tax I.D. No.: ▇▇-▇▇▇▇▇▇▇
P-13
121
SERIES AND PRINCIPAL AMOUNT
NAME OF PURCHASER OF NOTES BEING PURCHASED
----------------------------------------------------------------------------------------------------------------------------
CONNECTICUT GENERAL LIFE INSURANCE COMPANY (NOMINEE IS CIG & CO.) SERIES PRINCIPAL AMOUNT
------ ----------------
(1) All payments on or in respect of the Notes to be made RHB-1 $1,000,000
by bank wire transfer of Federal or other immediately
available funds to: RHB-2 $500,000
The Chase Manhattan Bank RHB-3 $3,500,000
Chase NYC/CTR/
BNF=CIGNA Private Placements/AC=9009001802 RHD-1 $3,300,000
ABA#: ▇▇▇▇▇▇▇▇▇
RHD-2 $3,000,000
OBI=[name of company; description of security;
interest rate; maturity date; PPN; due date and
application (as among principal, premium and interest
of the payment being made); contact name and
phone.]
(2) Address for Notices Related to Payments:
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Securities Processing S-309
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities S-307
Operations Group
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
P-14
122
with a copy to:
The Chase Manhattan Bank
Private Placement Servicing
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: CIGNA Private Placements
Fax: (▇▇▇) ▇▇▇-▇▇▇▇/1005
(3) Address for All Other Notices:
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities Division S-307
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(4) Tax I.D. No.: ▇▇-▇▇▇▇▇▇▇
P-15
123
SERIES AND PRINCIPAL AMOUNT
NAME OF PURCHASER OF NOTES BEING PURCHASED
----------------------------------------------------------------------------------------------------------------------------
LIFE INSURANCE COMPANY OF NORTH AMERICA (NOMINEE IS CIG & CO.) SERIES PRINCIPAL AMOUNT
------ ----------------
(1) All payments on or in respect of the Notes to be made RHD-3 $3,200,000
by bank wire transfer of Federal or other immediately
available funds to:
The Chase Manhattan Bank
Chase NYC/CTR/
BNF=CIGNA Private Placements/AC=9009001802
ABA#: ▇▇▇▇▇▇▇▇▇
OBI=[name of company; description of security;
interest rate; maturity date; PPN; due date and
application (as among principal, premium and interest
of the payment being made); contact name and
phone.]
(2) Address for Notices Related to Payments:
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Securities Processing S-309
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities S-307
Operations Group
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
P-16
124
with a copy to:
The Chase Manhattan Bank
Private Placement Servicing
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: CIGNA Private Placements
Fax: (▇▇▇) ▇▇▇-▇▇▇▇/1005
(3) Address for All Other Notices:
CIG & Co.
c/o CIGNA Investments, Inc.
Attention: Private Securities Division S-307
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(4) Tax I.D. No.: ▇▇-▇▇▇▇▇▇▇
P-17
125
SERIES AND PRINCIPAL AMOUNT
NAME OF PURCHASER OF NOTES BEING PURCHASED
----------------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇▇ LIFE INSURANCE COMPANY (NOMINEE IS ▇▇▇▇▇▇▇ & CO.) SERIES PRINCIPAL AMOUNT
------ ----------------
(1) All payments on or in respect of the Notes to be made RHC $27,000,000
by bank wire transfer of Federal or other immediately
available funds to:
Bankers Trust Company
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
SWIFT Code: BKTR US 33
ABA No. ▇▇▇▇▇▇▇▇▇
Account No.: ▇▇-▇▇▇-▇▇▇
FCC No: 098620
Reference: security description, coupon, maturity,
PPN #, identify principal or interest.
(2) Physical Delivery of the Notes:
Bankers Trust Company
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
Mail Stop 4042, Window ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Account No. 098620
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
(3) All notices with respect to payments and written
confirmation of each such payment to be addressed as
follows:
GE Financial Assurance
Account: ▇▇ ▇▇▇▇▇▇ Life Insurance Company
Two Union Square
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Accounting
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
P-18
126
(4) All other notices and communications, including
original note purchase agreement, conformed copy of
the note agreement, amendment requests, and
financial statements, to be addressed as follows::
GE Financial Assurance
Account: ▇▇ ▇▇▇▇▇▇ Life Insurance Company
Two Union Square
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Investment Dept., Private Placements
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(5) Tax I.D. No.: N/A
P-19
127
SERIES AND PRINCIPAL AMOUNT
NAME OF PURCHASER OF NOTES BEING PURCHASED
----------------------------------------------------------------------------------------------------------------------------
THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA (NOMINEE IS ▇▇▇▇ & CO.) SERIES PRINCIPAL AMOUNT
------ ----------------
(1) All payments on or in respect of the Notes to be made RHB-4 $7,000,000
by bank wire transfer of Federal or other immediately
available funds to: RHD-4 $7,500,000
The Chase Manhattan Bank
FED ABA No. ▇▇▇▇▇▇▇▇▇
CHASE/NYC/CTR/BNF
A/C: ▇▇▇-▇-▇▇▇▇▇▇
Reference A/C #G05978, Guardian Life, and the
name and CUSIP for which payment is being made.
(2) Deliver Notes to:
The Chase Manhattan Bank
4 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Zion Yu
(▇▇▇) ▇▇▇-▇▇▇▇
Reference A/C #G05978, Guardian Life
(3) All notices relating to payments to:
The Guardian Life Insurance Company of America
Attention: Investment Accounting Department 17-B
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(4) All other communications and notices to:
The Guardian Life Insurance Company of America
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Investment Department 20-D
Fax: (▇▇▇) ▇▇▇-▇▇▇▇/2658
(5) Tax I.D. No.: ▇▇-▇▇▇▇▇▇▇
P-20
128
SERIES AND PRINCIPAL AMOUNT
NAME OF PURCHASER OF NOTES BEING PURCHASED
----------------------------------------------------------------------------------------------------------------------------
METROPOLITAN LIFE INSURANCE COMPANY SERIES PRINCIPAL AMOUNT
------ ----------------
(1) All payments on or in respect of the Notes to be made RHD-5 $30,000,000
by bank wire transfer of Federal or other immediately
available funds to:
The Chase Manhattan Bank
ABA No. ▇▇▇▇▇▇▇▇▇
Acct. Name: Metropolitan Life Insurance Company
Acct. No. 002-2-410591
With sufficient information to identify the source and
application of such funds.
(2) Delivery of Notes after Closing:
Metropolitan Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
(3) All notices and communications to:
Metropolitan Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Private Placements Unit
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(4) Tax I.D. No.: ▇▇-▇▇▇▇▇▇▇
P-21
129
SERIES AND PRINCIPAL AMOUNT
NAME OF PURCHASER OF NOTES BEING PURCHASED
----------------------------------------------------------------------------------------------------------------------------
NATIONWIDE LIFE INSURANCE COMPANY SERIES PRINCIPAL AMOUNT
------ ----------------
(1) All payments on or in respect of the Notes to be made RHA-2 $5,000,000
by bank wire transfer of Federal or other immediately
available funds to:
The Bank of New York
ABA No. ▇▇▇-▇▇▇-▇▇▇
BNF: IOC566
F/A/O Nationwide Life Insurance Company
Attention: P & I Department
PPN #:
Security Description:
(2) Delivery of Notes to:
The Bank of New York
One Wall Street
3rd Floor - Window A
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
F/A/O Nationwide Life Insurance Company
Account No. 267829
(3) All notices of payments on or in respect to the Notes
should be sent to:
Nationwide Life Insurance Company
▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
P.O. Box 19266
Attention: P & I Department
Newark, New Jersey 07195
with a copy to:
Nationwide Life Insurance Company
Attention: Investment Accounting
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (▇-▇▇-▇▇)
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
P-22
130
(4) All other notices and communications to:
Nationwide Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (▇-▇▇-▇▇)
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Fixed-Income Securities
(5) Tax I.D. No.: ▇▇-▇▇▇▇▇▇▇
P-23
131
SERIES AND PRINCIPAL AMOUNT
NAME OF PURCHASER OF NOTES BEING PURCHASED
----------------------------------------------------------------------------------------------------------------------------
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY SERIES PRINCIPAL AMOUNT
------ ----------------
(1) All payments on or in respect of the Notes to be made RHA-3 $1,000,000
by bank wire transfer of Federal or other immediately
available funds to:
The Bank of New York
ABA No. ▇▇▇-▇▇▇-▇▇▇
BNF: IOC566
F/A/O Nationwide Life and Annuity Insurance
Company
Attention: P & I Department
PPN #:
Security Description:
(2) Delivery of Notes to:
The Bank of New York
One Wall Street
3rd Floor - Window A
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
F/A/O Nationwide Life and Annuity Insurance
Company Account No. 267961
(3) All notices of payments on or in respect to the Notes
should be sent to:
Nationwide Life and Annuity Insurance Company
▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
Attention: P & I Department
Newark, New Jersey 07195
with a copy to:
Nationwide Life and Annuity Insurance Company
Attention: Investment Accounting
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (▇-▇▇-▇▇)
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
P-24
132
(4) All other notices and communications to:
Nationwide Life and Annuity Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (▇-▇▇-▇▇)
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Fixed-Income Securities
(5) Tax I.D. No.: ▇▇-▇▇▇▇▇▇▇
P-25
133
SERIES AND PRINCIPAL AMOUNT
NAME OF PURCHASER OF NOTES BEING PURCHASED
----------------------------------------------------------------------------------------------------------------------------
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY SERIES PRINCIPAL AMOUNT
------ ----------------
(1) All payments on or in respect of the Notes to be made RHA-4 $2,000,000
by bank wire transfer of Federal or other immediately
available funds to:
The Bank of New York
ABA No. ▇▇▇-▇▇▇-▇▇▇
BNF: IOC566
F/A/O Nationwide Mutual Fire Insurance Company
Attention: P & I Department
PPN #:
Security Description:
(2) Delivery of Notes to:
The Bank of New York
One Wall Street
3rd Floor - Window A
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
F/A/O Nationwide Mutual Fire Insurance
Company Account No. 267966
(3) All notices of payments on or in respect to the Notes
should be sent to:
Nationwide Mutual Fire Insurance Company
▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: P & I Department
Newark, New Jersey 07195
with a copy to:
Nationwide Mutual Fire Insurance Company
Attention: Investment Accounting
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (▇-▇▇-▇▇)
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
P-26
134
(4) All other notices and communications to:
Nationwide Mutual Fire Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (▇-▇▇-▇▇)
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Fixed-Income Securities
(5) Tax I.D. No.: ▇▇-▇▇▇▇▇▇▇
P-27
135
SERIES AND PRINCIPAL AMOUNT
NAME OF PURCHASER OF NOTES BEING PURCHASED
----------------------------------------------------------------------------------------------------------------------------
NATIONWIDE MUTUAL INSURANCE COMPANY SERIES PRINCIPAL AMOUNT
------ ----------------
(1) All payments on or in respect of the Notes to be made RHA-5 $2,000,000
by bank wire transfer of Federal or other immediately
available funds to:
The Bank of New York
ABA No. ▇▇▇-▇▇▇-▇▇▇
BNF: IOC566
F/A/O Nationwide Mutual Insurance Company
Attention: P & I Department
PPN #:
Security Description:
(2) Delivery of Notes to:
The Bank of New York
One Wall Street
3rd Floor - Window A
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
F/A/O Nationwide Mutual Insurance Company
Account No. 264232
(3) All notices of payments on or in respect to the Notes
should be sent to:
Nationwide Mutual Insurance Company
▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: P & I Department
Newark, New Jersey 07195
with a copy to:
Nationwide Mutual Insurance Company
Attention: Investment Accounting
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (▇-▇▇-▇▇)
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
P-28
136
(4) All other notices and communications to:
Nationwide Mutual Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (▇-▇▇-▇▇)
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Fixed-Income Securities
(5) Tax I.D. No.: ▇▇-▇▇▇▇▇▇▇
P-29
137
SERIES AND PRINCIPAL AMOUNT
NAME OF PURCHASER OF NOTES BEING PURCHASED
----------------------------------------------------------------------------------------------------------------------------
PACIFIC LIFE INSURANCE COMPANY (NOMINEE MAC & CO.) SERIES PRINCIPAL AMOUNT
------ ----------------
(1) For payment of principal and interest: RHB-5 $15,000,000
Federal Reserve Bank of Boston
ABA No.: ▇▇▇▇-▇▇▇▇-▇/BOS SAFE DEP
DDA: 125261
Attention: MBS Income CC: 1253
A/C Name: Pacific Life General Account/
PLCF1810132
Regarding: Security Description & PPN
(2) For Physical Delivery of Certificates:
Mellon Securities Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
A/C Name: Pacific Life General Account
A/C#: PLCF1810132
(3) All notices of payments and written confirmation of
such wire transfers to:
Mellon Trust
Attention: Pacific Life Accounting Team
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
and:
Pacific Life Insurance Company
Attention: Securities Administration - Cash Team
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
P-30
138
(4) All other communications shall be addressed to:
Pacific Life Insurance Company
Attention: Securities Department
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(5) Tax I.D. No.: ▇▇-▇▇▇▇▇▇▇
P-31
139
SERIES AND PRINCIPAL AMOUNT
NAME OF PURCHASER OF NOTES BEING PURCHASED
----------------------------------------------------------------------------------------------------------------------------
COMMERCIAL UNION LIFE INSURANCE COMPANY OF AMERICA SERIES PRINCIPAL AMOUNT
------ ----------------
(1) All payments with respect to the Notes are to be made RHD-6 $2,000,000
by bank wire transfer of immediately available funds to:
Mellon Bank (Boston Safe Deposit)
ABA No. ▇▇▇▇▇▇▇▇▇
DDA#: 048771
FFC: CU Life Insurance Co/Principal Financial
FFC AC#: GAIF1309002
With sufficient information (including interest rate,
maturity date, interest amount, principal amount, and
premium amount, if applicable) to identify the source
and application of such funds.
(2) Upon closing, deliver Notes to:
Commercial Union Life Insurance Company of
America
c/o Principal Capital Management, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇, Esq.
(3) All notices with respect to payment on the Notes
should be sent to:
Commercial Union Life Insurance Company of
America
c/o Principal Capital Management, LLC
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Investment Accounting - Securities
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation: (▇▇▇) ▇▇▇-▇▇▇▇
P-32
140
(4) All notices with respect to the Notes, except with
respect to payment, should be sent to:
Commercial Union Life Insurance Company of
America
c/o Principal Capital Management, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Investment Department - Securities
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation: (▇▇▇) ▇▇▇-▇▇▇▇
(5) Tax I.D. No.: ▇▇-▇▇▇▇▇▇▇
P-33
141
SERIES AND PRINCIPAL AMOUNT
NAME OF PURCHASER OF NOTES BEING PURCHASED
----------------------------------------------------------------------------------------------------------------------------
PRINCIPAL LIFE INSURANCE COMPANY SERIES PRINCIPAL AMOUNT
------ ----------------
(1) All payments with respect to the Notes are to be made RHD-7 $5,000,000
by bank wire transfer of immediately available funds to:
RHE-1 $7,000,000
▇▇▇▇▇ Fargo Bank Iowa, N.A.
▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
ABA No. ▇▇▇▇▇▇▇▇▇
For credit to Principal Life Insurance Company
Account No.: 0000014752
For the $5,000,000 Series D Note:
Reference: OBI PFGSE (S) B0063067()
For the $7,000,000 Series E Note:
Reference: OBI PFGSE (S) B0063068()
All wire transfers must be accompanied with
sufficient information (including interest rate,
maturity date, interest amount, principal amount, and
premium amount, if applicable) to identify the source
and application of such funds.
(2) Upon closing, deliver Notes to:
Principal Capital Management, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇, Esq.
(3) All notices with respect to payments on the Notes
should be sent to:
Principal Capital Management, LLC
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Investment Accounting - Securities
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation: (▇▇▇) ▇▇▇-▇▇▇▇
P-34
142
(4) All notices with respect to the Notes, except with
respect to payment, should be sent to:
Principal Capital Management, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Investment Department - Securities
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation: (▇▇▇) ▇▇▇-▇▇▇▇
(5) Tax I.D. No.: ▇▇-▇▇▇▇▇▇▇
P-35
143
SERIES AND PRINCIPAL AMOUNT
NAME OF PURCHASER OF NOTES BEING PURCHASED
----------------------------------------------------------------------------------------------------------------------------
RELIASTAR LIFE INSURANCE COMPANY SERIES PRINCIPAL AMOUNT
------ ----------------
(1) All payments on or in respect of the Notes to be made RHB-6 $2,000,000
by bank wire transfer of Federal or other immediately
available funds to:
BK of NYC
IOC 566-INST'L CUSTODY
Bank ABA No.: ▇▇▇▇▇▇▇▇▇
Acct. #: 187035
Acct. Name: ReliaStar Life Insurance Company
Reference CUSIP, Name & Maturity
(2) Upon closing, deliver Notes to:
ReliaStar Investment Research, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
(3) All notices, correspondence and documents to:
ReliaStar Investment Research, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ref: Private Placements
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(5) Tax I.D. No.: ▇▇-▇▇▇▇▇▇▇
P-36
144
SERIES AND PRINCIPAL AMOUNT
NAME OF PURCHASER OF NOTES BEING PURCHASED
----------------------------------------------------------------------------------------------------------------------------
RELIASTAR LIFE INSURANCE COMPANY OF NEW YORK SERIES PRINCIPAL AMOUNT
------ ----------------
(1) All payments on or in respect of the Notes to be made RHD-8 $2,000,000
by bank wire transfer of Federal or other immediately
available funds to:
BK of NYC
IOC 566-INST'L CUSTODY
Bank ABA No.: ▇▇▇▇▇▇▇▇▇
Acct. #: 187038
Acct. Name: ReliaStar Life Insurance Company of
New York
Reference CUSIP, Name & Maturity
(2) Upon closing, deliver Notes to:
ReliaStar Investment Research, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
(3) All notices, correspondence and documents to:
ReliaStar Investment Research, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ref: Private Placements
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(5) Tax I.D. No.: ▇▇-▇▇▇▇▇▇▇
P-37
145
SERIES AND PRINCIPAL AMOUNT
NAME OF PURCHASER OF NOTES BEING PURCHASED
----------------------------------------------------------------------------------------------------------------------------
NORTHERN LIFE INSURANCE COMPANY SERIES PRINCIPAL AMOUNT
------ ----------------
(1) All payments on or in respect of the Notes to be made RHB-7 $3,000,000
by bank wire transfer of Federal or other immediately
available funds to: RHD-9 $2,000,000
BK of NYC
IOC 566-INST'L CUSTODY
ABA No.: ▇▇▇▇▇▇▇▇▇
Account #: 187036
Account Name: Northern Life Insurance Company
Reference CUSIP, Name & Maturity
(2) Upon closing, deliver Notes to:
ReliaStar Investment Research, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
(3) All notices, correspondence and documents to:
ReliaStar Investment Research, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ref: Private Placements
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(5) Tax I.D. No.: ▇▇-▇▇▇▇▇▇▇
P-38
146
SERIES AND PRINCIPAL AMOUNT
NAME OF PURCHASER OF NOTES BEING PURCHASED
----------------------------------------------------------------------------------------------------------------------------
SUN LIFE ASSURANCE COMPANY OF CANADA SERIES PRINCIPAL AMOUNT
------ ----------------
(1) Wire transfers of principal and interest with regard to RHA-6 $1,250,000
the Notes are to be directed to:
RHA-7 $250,000
Bank of New York
P&I Department RHF-7 $2,000,000
ABA No.: ▇▇▇-▇▇▇-▇▇▇
Account: IOC566
Re: Heritage Operating, L.P.
For Further Credit: IOC566
All wire transfers are to be accompanied by the PPN
and by the source and the principal and interest
application of the funds.
Sun Life has a reinvestment deadline of 10:00 a.m.
(Eastern time) after which it cannot continue to hold
funds available absent an indemnification in respect
of overnight interest and any other costs that may be
incurred if the closing does not take place on the
scheduled closing date.
(2) Upon closing, deliver Notes to:
Sun Life of Canada
One Sun Life Executive Park, SC 1303
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
(3) Written notice of each routine payment and any audit
confirmation to be sent to:
Sun Life of Canada
One Sun Life Executive Park, SC 1395
Manager, Securities Operations
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
P-39
147
(4) All other notices and correspondence, including
notices of non-routine payments, are to be forwarded
to:
Sun Life of Canada
One Sun Life Executive Park, SC 1303
Investment Division/Private Placements
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(5) Tax I.D. No.: ▇▇-▇▇▇▇▇▇▇
(6) Please forward signature pages, funding instructions,
and the closing documents to:
Sun Life of Canada
One Sun Life Executive Park, SC 1303
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
P-40
148
SERIES AND PRINCIPAL AMOUNT
NAME OF PURCHASER OF NOTES BEING PURCHASED
----------------------------------------------------------------------------------------------------------------------------
SUN LIFE ASSURANCE COMPANY OF CANADA (U.S.) SERIES PRINCIPAL AMOUNT
------ ----------------
(1) Wire transfers of principal and interest with regard to RHF-6 $5,000,000
the Notes are to be directed to:
The Chase Manhattan Bank
Private Placement Processing
ABA No.: ▇▇▇-▇▇▇-▇▇▇
Account: ▇▇▇-▇-▇▇▇▇▇▇
Re: Heritage Operating, ▇.▇.
▇▇▇▇▇ Account: G52682
All wire transfers are to be accompanied by the PPN
and by the source and the principal and interest
application of the funds.
Sun Life has a reinvestment deadline of 10:00 a.m.
(Eastern time) after which it cannot continue to hold
funds available absent an indemnification in respect
of overnight interest and any other costs that may be
incurred if the closing does not take place on the
scheduled closing date.
(2) Upon closing, deliver Notes to:
Sun Life of Canada
One Sun Life Executive Park, SC 1303
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
(3) Written notice of each routine payment and any audit
confirmation to be sent to:
Sun Life of Canada
One Sun Life Executive Park, SC 1395
Manager, Securities Operations
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
P-41
149
(4) All other notices and correspondence, including
notices of non-routine payments, are to be forwarded
to:
Sun Life of Canada
One Sun Life Executive Park, SC 1303
Investment Division/Private Placements
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(5) Tax I.D. No.: ▇▇-▇▇▇▇▇▇▇
(6) Please forward signature pages, funding instructions,
and the closing documents to:
Sun Life of Canada
One Sun Life Executive Park, SC 1303
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
P-42
150
SERIES AND PRINCIPAL AMOUNT
NAME OF PURCHASER OF NOTES BEING PURCHASED
----------------------------------------------------------------------------------------------------------------------------
SUN LIFE INSURANCE AND ANNUITY COMPANY OF NEW YORK SERIES PRINCIPAL AMOUNT
------ ----------------
(1) Wire transfers of principal and interest with regard to RHA-8 $250,000
the Notes are to be directed to:
RHA-9 $250,000
The Chase Manhattan Bank
Private Placement Processing RHA-10 $1,000,000
ABA No. ▇▇▇-▇▇▇-▇▇▇
Account: ▇▇▇-▇-▇▇▇▇▇▇
Re: Heritage Operating, L.P.
For the two (2) $250,000 Series A Notes:
Chase Account: G51642
For the $1,000,000 Series A Note:
Chase Account: G51933
All wire transfers are to be accompanied by the PPN
and by the source and the principal and interest
application of the funds.
Sun Life has a reinvestment deadline of 10:00 a.m.
(Eastern time) after which it cannot continue to hold
funds available absent an indemnification in respect
of overnight interest and any other costs that may be
incurred if the closing does not take place on the
scheduled closing date.
(2) Upon closing, deliver Notes to:
Sun Life of Canada
One Sun Life Executive Park, SC 1303
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
P-43
151
(3) Written notice of each routine payment and any audit
confirmation to be sent to:
Sun Life of Canada
One Sun Life Executive Park, SC 1395
Manager, Securities Operations
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(4) All other notices and correspondence, including
notices of non-routine payments, are to be forwarded
to:
Sun Life of Canada
One Sun Life Executive Park, SC 1303
Investment Division/Private Placements
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(5) Tax I.D. No.: ▇▇-▇▇▇▇▇▇▇
(6) Please forward signature pages, funding instructions,
and the closing documents to:
Sun Life of Canada
One Sun Life Executive Park, SC 1303
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
P-44
152
FORM OF SERIES A NOTE
HERITAGE OPERATING, L.P.
8.47% Series A Note
Due August 15 2007
No. _________________, ____
$
PPN:
HERITAGE OPERATING, L.P., a Delaware limited partnership (the
"Company"), for value received, hereby promises to pay to ___________________
or registered assigns on the fifteenth day of August, 2007 the principal amount
of ______________ DOLLARS ($________________), and to pay interest (computed on
the basis of a 360-day year of twelve 30-day months) on the principal amount
from time to time remaining unpaid at the rate of 8.47% per annum from the date
hereof until maturity, payable quarterly on the 15th day of each February, May,
August and November in each year commencing on ___________, ______, and at
maturity. The Company agrees to pay interest on overdue principal (including
any overdue optional prepayment of principal) and premium, if any, and, to the
extent permitted by law, on any overdue installment of interest, payable
quarterly as aforesaid (or, at the option of the holder hereof, on demand) at a
rate per annum from time to time equal to the greater of (i) 10.47%, or (ii) 2%
over the rate of interest publicly announced by ▇▇▇▇▇▇ Guaranty Trust Company
of New York as its "prime rate" until paid. Both the principal hereof and
interest hereon are payable at the principal office of ▇▇▇▇▇▇ Guaranty Trust
Company of New York, in New York, New York in coin or currency of the United
States of America which at the time of payment shall be legal tender for the
payment of public and private debts.
This promissory note is one of the 8.47% Series A Notes due August 15,
2007 (the "Series A Notes") of the Company in the aggregate principal amount of
$16,000,000 issued under and pursuant to the terms and provisions of the Note
Purchase Agreement dated as of August 10, 2000 (the "Agreement"), entered into
by the Company with the Initial Purchasers therein referred to. Under and
pursuant to said Agreement (including any Supplemental Note Purchase
Agreements, as such term and all other terms used herein but not otherwise
defined herein are defined in the Agreement) the Company and may from time to
time issue additional series of promissory notes (the "Subsequent Notes" and
collectively with the Series A-F Notes, the "Notes"). The aggregate principal
amount of all Notes issued under the Agreement shall not exceed $250,000,000.
This Series A Note and the holder hereof are entitled equally and ratably with
the holders of all other Notes outstanding under the Agreement to all the
benefits provided
EXHIBIT A-1
(to Note Purchase Agreement)
153
for thereby or referred to therein. Reference is hereby made to the Agreement
for a statement of such rights and benefits.
This Series A Note and the other Notes outstanding under the Agreement
may be declared due prior to their expressed maturity dates, all in the events,
on the terms and in the manner and amounts as provided in the Agreement.
The Notes are not subject to prepayment or redemption at the option of
the Company prior to their expressed maturity dates except on the terms and
conditions and in the amounts and with the premium, if any, set forth in the
Agreement.
This Series A Note is secured pursuant to the Security Agreement (as
defined in the Agreement), and, subject to the Intercreditor Agreement (as
defined in the Agreement), is entitled to the benefits thereof.
This Series A Note is registered on the books of the Company and is
transferable only by surrender thereof at the principal office of the Company
duly endorsed or accompanied by a written instrument of transfer duly executed
by the registered holder of this Series A Note or its attorney duly authorized
in writing. Payment of or on account of principal, premium, if any, and
interest on this Series A Note shall be made only to or upon the order in
writing of the registered holder.
This Series A Note shall be governed by the laws of the State of New
York.
HERITAGE OPERATING, L.P.
By Heritage Holdings, Inc., General Partner
By
-----------------------------------------
Its
A-1-2
154
FORM OF SERIES B NOTE
HERITAGE OPERATING, L.P.
8.55% Series B Note
Due August 15, 2010
No. _________________, ____
$
PPN:
HERITAGE OPERATING, L.P., a Delaware limited partnership (the
"Company"), for value received, hereby promises to pay to ___________________
or registered assigns on the fifteenth day of August, 2010 the principal amount
of ______________ DOLLARS ($________________), and to pay interest (computed on
the basis of a 360-day year of twelve 30-day months) on the principal amount
from time to time remaining unpaid at the rate of 8.55% per annum from the date
hereof until maturity, payable quarterly on the 15th day of each February, May,
August and November in each year commencing on ___________, ______, and at
maturity. The Company agrees to pay interest on overdue principal (including
any overdue optional prepayment of principal) and premium, if any, and, to the
extent permitted by law, on any overdue installment of interest, payable
quarterly as aforesaid (or, at the option of the holder hereof, on demand) at a
rate per annum from time to time equal to the greater of (i) 10.55%, or (ii) 2%
over the rate of interest publicly announced by ▇▇▇▇▇▇ Guaranty Trust Company
of New York as its "prime rate" until paid. Both the principal hereof and
interest hereon are payable at the principal office of ▇▇▇▇▇▇ Guaranty Trust
Company of New York, in New York, New York in coin or currency of the United
States of America which at the time of payment shall be legal tender for the
payment of public and private debts.
This promissory note is one of the 8.55% Series B Notes due August 15,
2010 (the "Series B Notes") of the Company in the aggregate principal amount of
$32,000,000 issued under and pursuant to the terms and provisions of the Note
Purchase Agreement dated as of August 10, 2000 (the "Agreement"), entered into
by the Company with the Initial Purchasers therein referred to. Under and
pursuant to said Agreement (including any Supplemental Note Purchase
Agreements, as such term and all other terms used herein but not otherwise
defined herein are defined in the Agreement) the Company and may from time to
time issue additional series of promissory notes (the "Subsequent Notes" and
collectively with the Series A-F Notes, the "Notes"). The aggregate principal
amount of all Notes issued under the Agreement shall not exceed $250,000,000.
This Series B Note and the holder hereof are entitled equally and ratably with
the holders of all other Notes outstanding under the Agreement to all the
benefits provided
EXHIBIT A-2
(to Note Purchase Agreement)
155
for thereby or referred to therein. Reference is hereby made to the Agreement
for a statement of such rights and benefits.
This Series B Note and the other Notes outstanding under the Agreement
may be declared due prior to their expressed maturity dates, all in the events,
on the terms and in the manner and amounts as provided in the Agreement.
The Notes are not subject to prepayment or redemption at the option of
the Company prior to their expressed maturity dates except on the terms and
conditions and in the amounts and with the premium, if any, set forth in the
Agreement.
This Series B Note is secured pursuant to the Security Agreement (as
defined in the Agreement), and, subject to the Intercreditor Agreement (as
defined in the Agreement), is entitled to the benefits thereof.
This Series B Note is registered on the books of the Company and is
transferable only by surrender thereof at the principal office of the Company
duly endorsed or accompanied by a written instrument of transfer duly executed
by the registered holder of this Series B Note or its attorney duly authorized
in writing. Payment of or on account of principal, premium, if any, and
interest on this Series B Note shall be made only to or upon the order in
writing of the registered holder.
This Series B Note shall be governed by the laws of the State of New
York.
HERITAGE OPERATING, L.P.
By Heritage Holdings, Inc., General Partner
By
-----------------------------------------
Its:
A-2-2
156
FORM OF SERIES C NOTE
HERITAGE OPERATING, L.P.
8.59% Series C Note
Due August 15, 2010
No. _________________, ____
$
PPN:
HERITAGE OPERATING, L.P., a Delaware limited partnership (the
"Company"), for value received, hereby promises to pay to ___________________
or registered assigns on the fifteenth day of August, 2010 the principal amount
of ______________ DOLLARS ($________________), and to pay interest (computed on
the basis of a 360-day year of twelve 30-day months) on the principal amount
from time to time remaining unpaid at the rate of 8.59% per annum from the date
hereof until maturity, payable quarterly on the 15th day of each February, May,
August and November in each year commencing on ___________, ______, and at
maturity. The Company agrees to pay interest on overdue principal (including
any overdue optional prepayment of principal) and premium, if any, and, to the
extent permitted by law, on any overdue installment of interest, payable
quarterly as aforesaid (or, at the option of the holder hereof, on demand) at a
rate per annum from time to time equal to the greater of (i) 10.59%, or (ii) 2%
over the rate of interest publicly announced by ▇▇▇▇▇▇ Guaranty Trust Company
of New York as its "prime rate" until paid. Both the principal hereof and
interest hereon are payable at the principal office of ▇▇▇▇▇▇ Guaranty Trust
Company of New York, in New York, New York in coin or currency of the United
States of America which at the time of payment shall be legal tender for the
payment of public and private debts.
This promissory note is one of the 8.59% Series C Notes due August 15,
2010 (the "Series C Notes") of the Company in the aggregate principal amount of
$27,000,000 issued under and pursuant to the terms and provisions of the Note
Purchase Agreement dated as of August 10, 2000 (the "Agreement"), entered into
by the Company with the Initial Purchasers therein referred to. Under and
pursuant to said Agreement (including any Supplemental Note Purchase
Agreements, as such term and all other terms used herein but not otherwise
defined herein are defined in the Agreement) the Company and may from time to
time issue additional series of promissory notes (the "Subsequent Notes" and
collectively with the Series A-F Notes, the "Notes"). The aggregate principal
amount of all Notes issued under the Agreement shall not exceed $250,000,000.
This Series C Note and the holder hereof are entitled equally and ratably with
the holders of all other Notes outstanding under the Agreement to all the
benefits provided
EXHIBIT A-3
(to Note Purchase Agreement)
157
for thereby or referred to therein. Reference is hereby made to the Agreement
for a statement of such rights and benefits.
This Series C Note and the other Notes outstanding under the Agreement
may be declared due prior to their expressed maturity dates, all in the events,
on the terms and in the manner and amounts as provided in the Agreement.
The Notes are not subject to prepayment or redemption at the option of
the Company prior to their expressed maturity dates except on the terms and
conditions and in the amounts and with the premium, if any, set forth in the
Agreement.
This Series C Note is secured pursuant to the Security Agreement (as
defined in the Agreement), and, subject to the Intercreditor Agreement (as
defined in the Agreement), is entitled to the benefits thereof.
This Series C Note is registered on the books of the Company and is
transferable only by surrender thereof at the principal office of the Company
duly endorsed or accompanied by a written instrument of transfer duly executed
by the registered holder of this Series C Note or its attorney duly authorized
in writing. Payment of or on account of principal, premium, if any, and
interest on this Series C Note shall be made only to or upon the order in
writing of the registered holder.
This Series C Note shall be governed by the laws of the State of New
York.
HERITAGE OPERATING, L.P.
By Heritage Holdings, Inc., General Partner
By
-----------------------------------------
Its:
A-3-2
158
FORM OF SERIES D NOTE
HERITAGE OPERATING, L.P.
8.67% Series D Note
Due August 15, 2012
No. _________________, ____
$
PPN:
HERITAGE OPERATING, L.P., a Delaware limited partnership (the
"Company"), for value received, hereby promises to pay to ___________________
or registered assigns on the fifteenth day of August, 2012 the principal amount
of ______________ DOLLARS ($________________), and to pay interest (computed on
the basis of a 360-day year of twelve 30-day months) on the principal amount
from time to time remaining unpaid at the rate of 8.67% per annum from the date
hereof until maturity, payable quarterly on the 15th day of each February, May,
August and November in each year commencing on ___________, ______, and at
maturity. The Company agrees to pay interest on overdue principal (including
any overdue optional prepayment of principal) and premium, if any, and, to the
extent permitted by law, on any overdue installment of interest, payable
quarterly as aforesaid (or, at the option of the holder hereof, on demand) at a
rate per annum from time to time equal to the greater of (i) 10.67%, or (ii) 2%
over the rate of interest publicly announced by ▇▇▇▇▇▇ Guaranty Trust Company
of New York as its "prime rate" until paid. Both the principal hereof and
interest hereon are payable at the principal office of ▇▇▇▇▇▇ Guaranty Trust
Company of New York, in New York, New York in coin or currency of the United
States of America which at the time of payment shall be legal tender for the
payment of public and private debts.
This promissory note is one of the 8.67% Series D Notes due August 15,
2012 (the "Series D Notes") of the Company in the aggregate principal amount of
$58,000,000 issued under and pursuant to the terms and provisions of the Note
Purchase Agreement dated as of August 10, 2000 (the "Agreement"), entered into
by the Company with the Initial Purchasers therein referred to. Under and
pursuant to said Agreement (including any Supplemental Note Purchase
Agreements, as such term and all other terms used herein but not otherwise
defined herein are defined in the Agreement) the Company and may from time to
time issue additional series of promissory notes (the "Subsequent Notes" and
collectively with the Series A-F Notes, the "Notes"). The aggregate principal
amount of all Notes issued under the Agreement shall not exceed $250,000,000.
This Series D Note and the holder hereof are entitled equally and ratably with
the holders of all other Notes outstanding under the Agreement to all the
benefits provided
EXHIBIT A-4
(to Note Purchase Agreement)
159
for thereby or referred to therein. Reference is hereby made to the Agreement
for a statement of such rights and benefits.
This Series D Note and the other Notes outstanding under the Agreement
may be declared due prior to their expressed maturity dates, all in the events,
on the terms and in the manner and amounts as provided in the Agreement.
The Notes are not subject to prepayment or redemption at the option of
the Company prior to their expressed maturity dates except on the terms and
conditions and in the amounts and with the premium, if any, set forth in the
Agreement.
This Series D Note is secured pursuant to the Security Agreement (as
defined in the Agreement), and, subject to the Intercreditor Agreement (as
defined in the Agreement), is entitled to the benefits thereof.
This Series D Note is registered on the books of the Company and is
transferable only by surrender thereof at the principal office of the Company
duly endorsed or accompanied by a written instrument of transfer duly executed
by the registered holder of this Series D Note or its attorney duly authorized
in writing. Payment of or on account of principal, premium, if any, and
interest on this Series A Note shall be made only to or upon the order in
writing of the registered holder.
This Series D Note shall be governed by the laws of the State of New
York.
HERITAGE OPERATING, L.P.
By Heritage Holdings, Inc., General Partner
By
-----------------------------------------
Its:
A-4-2
160
FORM OF SERIES E NOTE
HERITAGE OPERATING, L.P.
8.75% Series E Note
Due August 15, 2015
No. _________________, ____
$
PPN:
HERITAGE OPERATING, L.P., a Delaware limited partnership (the
"Company"), for value received, hereby promises to pay to ___________________
or registered assigns on the fifteenth day of August, 2015 the principal amount
of ______________ DOLLARS ($________________), and to pay interest (computed on
the basis of a 360-day year of twelve 30-day months) on the principal amount
from time to time remaining unpaid at the rate of 8.75% per annum from the date
hereof until maturity, payable quarterly on the 15th day of each February, May,
August and November in each year commencing on ___________, ______, and at
maturity. The Company agrees to pay interest on overdue principal (including
any overdue optional prepayment of principal) and premium, if any, and, to the
extent permitted by law, on any overdue installment of interest, payable
quarterly as aforesaid (or, at the option of the holder hereof, on demand) at a
rate per annum from time to time equal to the greater of (i) 10.75%, or (ii) 2%
over the rate of interest publicly announced by ▇▇▇▇▇▇ Guaranty Trust Company
of New York as its "prime rate" until paid. Both the principal hereof and
interest hereon are payable at the principal office of ▇▇▇▇▇▇ Guaranty Trust
Company of New York, in New York, New York in coin or currency of the United
States of America which at the time of payment shall be legal tender for the
payment of public and private debts.
This promissory note is one of the 8.75% Series E Notes due August 15,
2015 (the "Series E Notes") of the Company in the aggregate principal amount of
$7,000,000 issued under and pursuant to the terms and provisions of the Note
Purchase Agreement dated as of August 10, 2000 (the "Agreement"), entered into
by the Company with the Initial Purchasers therein referred to. Under and
pursuant to said Agreement (including any Supplemental Note Purchase
Agreements, as such term and all other terms used herein but not otherwise
defined herein are defined in the Agreement) the Company and may from time to
time issue additional series of promissory notes (the "Subsequent Notes" and
collectively with the Series A-F Notes, the "Notes"). The aggregate principal
amount of all Notes issued under the Agreement shall not exceed $250,000,000.
This Series E Note and the holder hereof are entitled equally and ratably with
the holders of all other Notes outstanding under the Agreement to all the
benefits provided
EXHIBIT A-5
(to Note Purchase Agreement)
161
for thereby or referred to therein. Reference is hereby made to the Agreement
for a statement of such rights and benefits.
This Series E Note and the other Notes outstanding under the Agreement
may be declared due prior to their expressed maturity dates, all in the events,
on the terms and in the manner and amounts as provided in the Agreement.
The Notes are not subject to prepayment or redemption at the option of
the Company prior to their expressed maturity dates except on the terms and
conditions and in the amounts and with the premium, if any, set forth in the
Agreement.
This Series E Note is secured pursuant to the Security Agreement (as
defined in the Agreement), and, subject to the Intercreditor Agreement (as
defined in the Agreement), is entitled to the benefits thereof.
This Series E Note is registered on the books of the Company and is
transferable only by surrender thereof at the principal office of the Company
duly endorsed or accompanied by a written instrument of transfer duly executed
by the registered holder of this Series E Note or its attorney duly authorized
in writing. Payment of or on account of principal, premium, if any, and
interest on this Series E Note shall be made only to or upon the order in
writing of the registered holder.
This Series E Note shall be governed by the laws of the State of New
York.
HERITAGE OPERATING, L.P.
By Heritage Holdings, Inc., General Partner
By
-----------------------------------------
Its:
A-5-2
162
FORM OF SERIES F NOTE
HERITAGE OPERATING, L.P.
8.87% Series F Note
Due August 15, 2020
No. _________________, ____
$
PPN:
HERITAGE OPERATING, L.P., a Delaware limited partnership (the
"Company"), for value received, hereby promises to pay to ___________________
or registered assigns on the fifteenth day of August, 2020 the principal amount
of ______________ DOLLARS ($________________), and to pay interest (computed on
the basis of a 360-day year of twelve 30-day months) on the principal amount
from time to time remaining unpaid at the rate of 8.87% per annum from the date
hereof until maturity, payable quarterly on the 15th day of each February, May,
August and November in each year commencing on ___________, ______, and at
maturity. The Company agrees to pay interest on overdue principal (including
any overdue optional prepayment of principal) and premium, if any, and, to the
extent permitted by law, on any overdue installment of interest, payable
quarterly as aforesaid (or, at the option of the holder hereof, on demand) at a
rate per annum from time to time equal to the greater of (i) 10.87%, or (ii) 2%
over the rate of interest publicly announced by ▇▇▇▇▇▇ Guaranty Trust Company
of New York as its "prime rate" until paid. Both the principal hereof and
interest hereon are payable at the principal office of ▇▇▇▇▇▇ Guaranty Trust
Company of New York, in New York, New York in coin or currency of the United
States of America which at the time of payment shall be legal tender for the
payment of public and private debts.
This promissory note is one of the 8.87% Series F Notes due August 10,
2020 (the "Series F Notes") of the Company in the aggregate principal amount of
$40,000,000 issued under and pursuant to the terms and provisions of the Note
Purchase Agreement dated as of August 10, 2000 (the "Agreement"), entered into
by the Company with the Initial Purchasers therein referred to. Under and
pursuant to said Agreement (including any Supplemental Note Purchase
Agreements, as such term and all other terms used herein but not otherwise
defined herein is defined in the Agreement) the Company and may from time to
time issue additional series of promissory notes (the "Subsequent Notes" and
collectively with the Series A-F Notes, the "Notes"). The aggregate principal
amount of all Notes issued under the Agreement shall not exceed $250,000,000.
This Series F Note and the holder hereof are entitled equally and ratably with
the holders of all other Notes outstanding under the Agreement to all the
benefits provided
EXHIBIT A-6
(to Note Purchase Agreement)
163
for thereby or referred to therein. Reference is hereby made to the Agreement
for a statement of such rights and benefits.
This Series F Note and the other Notes outstanding under the Agreement
may be declared due prior to their expressed maturity dates, all in the events,
on the terms and in the manner and amounts as provided in the Agreement.
The Notes are not subject to prepayment or redemption at the option of
the Company prior to their expressed maturity dates except on the terms and
conditions and in the amounts and with the premium, if any, set forth in the
Agreement.
This Series F Note is secured pursuant to the Security Agreement (as
defined in the Agreement), and, subject to the Intercreditor Agreement (as
defined in the Agreement), is entitled to the benefits thereof.
This Series F Note is registered on the books of the Company and is
transferable only by surrender thereof at the principal office of the Company
duly endorsed or accompanied by a written instrument of transfer duly executed
by the registered holder of this Series F Note or its attorney duly authorized
in writing. Payment of or on account of principal, premium, if any, and
interest on this Series F Note shall be made only to or upon the order in
writing of the registered holder.
This Series F Note shall be governed by the laws of the State of New
York.
HERITAGE OPERATING, L.P.
By Heritage Holdings, Inc., General Partner
By
-----------------------------------------
Its:
A-6-2
164
FORM OF SUBSEQUENT NOTE
HERITAGE OPERATING, L.P.
___% Series __ Note
Due _____________, ______
No. _______________, ____
$
PPN:
HERITAGE OPERATING, L.P., a Delaware limited partnership (the
"Company"), for value received, hereby promises to pay to ________________ or
registered assigns on the ______day of _____________, _____the principal amount
of____________ DOLLARS ($______________), and to pay interest (computed on the
basis of a 360-day year of twelve 30-day months) on the principal amount from
time to time remaining unpaid at the rate of ___% per annum from the date
hereof until maturity, payable quarterly on the __day of each __________,
__________, _________ and _________ in each year commencing on ___________,
______, and at maturity. The Company agrees to pay interest on overdue
principal (including any overdue optional prepayment of principal) and premium,
if any, and, to the extent permitted by law, on any overdue installment of
interest, payable quarterly as aforesaid (or, at the option of the holder
hereof, on demand) at a rate per annum from time to time equal to the greater
of (i) __%, or (ii) 2% over the rate of interest publicly announced by ▇▇▇▇▇▇
Guaranty Trust Company of New York as its "prime rate" until paid. Both the
principal hereof and interest hereon are payable at the principal office of
▇▇▇▇▇▇ Guaranty Trust Company of New York, in New York, New York in coin or
currency of the United States of America which at the time of payment shall be
legal tender for the payment of public and private debts.
This Promissory Note is one of the ___% Series ___ Notes due
___________, ___ (the "Series__ Notes") of the Company in the aggregate
principal amount of $________ issued under and pursuant to the terms and
provisions of the Note Purchase Agreement dated as of August 10, 2000 (the
"Agreement"), entered into by the Company with the Initial Purchasers therein
referred to, and a Supplemental Note Purchase Agreement dated as of __________,
____ entered into by the Company with the Supplemental Purchasers (as such term
is defined in the Agreement) named therein. Under and pursuant to said
Agreement the Company has heretofore issued Series A Notes, Series B Notes,
Series C Notes, Series D Notes, Series E Notes, Series F Notes, Series ___
Notes and Series ____ Notes (the "Issued Notes") in the aggregate and may, from
time to time issue additional Series (as such term is defined in the Agreement)
of promissory notes (such additional notes together with the Issued Notes and
the Series ___ Notes are hereinafter collectively referred to as the "Notes").
The aggregate principal amount of all Notes issued under the Agreement shall
not exceed $250,000,000. This Series ___Note and the holder hereof are entitled
equally and ratably with the holders of all other Notes outstanding under the
Agreement
EXHIBIT A-7
(to Note Purchase Agreement)
165
to all the benefits provided for thereby or referred to therein. Reference is
hereby made to the Agreement for a statement of such rights and benefits.
This Series ___ Note and the other Notes outstanding under the
Agreement (including any Supplemental Note Purchase Agreements, as such term is
defined in the Agreement) may be declared due prior to their expressed maturity
dates all in the events, on the terms and in the manner and amounts as provided
in the Agreement.
The Notes are not subject to prepayment or redemption at the option of
the Company prior to their expressed maturity dates except on the terms and
conditions and in the amounts and with the premium, if any, set forth in the
Agreement, including the Supplemental Note Purchase Agreement.
This Series ____ Note is secured pursuant to the Security Agreement
(as defined in the Agreement), and, subject to the Intercreditor Agreement (as
defined in the Agreement), is entitled to the benefits thereof.
This Series ____ Note is registered on the books of the Company and is
transferable only by surrender thereof at the principal office of the Company
duly endorsed or accompanied by a written instrument of transfer duly executed
by the registered holder of this Series ___ Note or its attorney duly
authorized in writing. Payment of or on account of principal, premium, if any,
and interest on this Series ___ Note shall be made only to or upon the order in
writing of the registered holder.
This Series ___ Note shall be governed by the laws of the State of New
York.
HERITAGE OPERATING, L.P.
By Heritage Holdings, Inc., General Partner
By
-----------------------------------------
Its:
A-7-2
166
FORM OF SUPPLEMENTAL NOTE PURCHASE AGREEMENT
As of _______________, ____
To Each of the Purchasers
Named in the Supplemental
Purchaser Schedule Attached Hereto
Ladies and Gentlemen:
Reference is made to that certain Note Purchase Agreement dated as of
August 10, 2000 between the Company and each of the Initial Purchasers named in
the Initial Purchaser Schedule attached thereto (the "Agreement"). Terms used
but not defined herein shall have the respective meanings set forth in the
Agreement.
As contemplated in Section 2B of the Agreement, the Company agrees
with you as follows:
A. Subsequent Series of Notes. The Company will create a Subsequent
Series of Notes to be called the "Series ____ Notes". Said Series ___ Notes
will be dated the date of issue; will bear interest from such date at the rate
of __% per annum, payable quarterly on the __ day of each _________, ________,
__________ and __________ in each year (commencing ____________, ___) until the
principal amount thereof shall become due and payable and shall bear interest
on overdue principal (including any overdue optional prepayment of principal)
and premium, if any, and, to the extent permitted by law, on any overdue
installment of interest at the rate specified therein after the date due for
payment, whether by acceleration or otherwise, until paid; will be expressed to
mature on ____________, ____; and will be substantially in the form attached to
the Agreement as Exhibit A-7 with the appropriate insertions to reflect the
terms and provisions set forth above.
B. Purchase and Sale of Series Notes. The Company hereby agrees to
sell to each Supplemental Purchaser set forth on the Supplemental Purchaser
Schedule attached hereto (collectively, the "Series ___ Purchasers") and,
subject to the terms and conditions in the Agreement and herein set forth, each
Series Purchaser agrees to purchase from the Company the aggregate principal
amount of the Series ____ Notes set opposite each Series ____ Purchaser's name
in the Supplemental Purchaser Schedule at 100% of the aggregate principal
amount. The sale of the Series ___ Notes shall take place at the offices of
Winston & ▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m.
Chicago time, at a closing the ("Series ___ Closing") on ____________, ___ or
such other date as shall be agreed upon by the Company and each Series ___
Purchaser. At the Series ___ Closing the Company will deliver to each Series
___ Purchaser one or more Series Notes registered in such Series __ Purchaser's
name (or in the name of its nominee), evidencing the aggregate principal amount
of Series ___ Notes to be purchased by said Series ____ Purchaser and in the
denomination or denominations specified with respect to such Series ___
Purchaser in the Supplemental Purchaser Schedule attached
EXHIBIT B
(to Note Purchase Agreement)
167
hereto against payment of the purchase price thereof by transfer of immediately
available funds for credit to the Company's account on the date of the Series
____ Closing (the "Series ____ Closing Date") (as specified in a notice to each
Series _____ Purchaser at least three Business Days prior to the Series
_____Closing Date).
C. Conditions of Series _____ Closing. The obligation of each Series
___ Purchaser to purchase and pay for the Series ___ Notes to be purchased by
such purchaser hereunder on the Series ___ Closing Date is subject to the
satisfaction, on or before such Series ___ Closing Date, of the conditions set
forth in Section 3 of the Agreement.
D. Prepayments. The Series _____ Notes shall be subject to prepayment
only (a) pursuant to the required prepayments, if any, specified in clause (x)
below, and in Section 4C of the Agreement; and (b) pursuant to the optional
prepayments permitted by Section 4B of the Agreement.
(x) Required Prepayments; Maturity
[to be determined]
(y) Optional and Contingent Prepayments. As provided in
Sections 4B and 4C of the Agreement.
E. Series ___ Notes Issued under and Pursuant to Agreement. Except as
specifically provided above, the Series ___ Notes shall be deemed to be issued
under, to be subject to and to have the benefit of all of the terms and
provisions of the Agreement as the same may from time to time be amended and
supplemented in the manner provided therein.
B-2
168
The execution hereof by the Series ___ Purchasers shall
constitute a contract among the Company and the Series ___ Purchasers for the
uses and purposes hereinabove set forth. By their acceptance hereof, each of
the Series ___ Purchasers shall also be deemed to have accepted and agreed to
the terms and provisions of the Agreement, as in effect on the date hereof.
HERITAGE OPERATING, L.P.
By Heritage Holdings, Inc., General Partner
By
-----------------------------------------
Its:
Accepted as of
-------------------------
[VARIATION]
By
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Its:
B-3
169
[WINSTON & ▇▇▇▇▇▇ LETTERHEAD]
August 10, 2000
To each of the Parties listed
on Schedule I attached hereto
$16,000,000 $58,000,000
8.47% Series A Senior Secured Notes 8.67% Series D Senior Secured Notes
Due August 15, 2007 Due August 15, 2012
$32,000,000 $7,000,000
8.55% Series B Senior Secured Notes 8.75% Series E Senior Secured Notes
Due August 15, 2010 Due August 15, 2015
$27,000,000 $40,000,000
8.59% Series C Senior Secured Notes 8.87% Series F Senior Secured Notes
Due August 15, 2010 Due August 15, 2020
of
HERITAGE OPERATING, L.P.
Ladies and Gentlemen:
We have acted as special counsel to HERITAGE OPERATING, L.P., a
Delaware limited partnership (the "Company"), in connection with the issue and
sale on the date hereof by the Company of $16,000,000 principal amount of its
8.47% senior secured notes due August 15, 2007 (the "A Notes"), $32,000,000
principal amount of its 8.55% senior secured notes due August 15, 2010 (the "B
Notes"), $27,000,000 principal amount of its 8.59% senior secured notes due
August 15, 2010 (the "C Notes"), $58,000,000 principal amount of its 8.67%
senior secured notes due August 15, 2012 (the "D Notes") $7,000,000 principal
amount of its 8.75% senior secured notes due August 15, 2015 (the "E Notes")
and $40,000,000 principal amount of its 8.87% senior secured notes due August
15, 2020 (the "F Notes" and collectively with the A
EXHIBIT C-1
(to Note Purchase Agreement)
170
Notes, the B Notes, the C Notes, the D Notes and the E Notes, the "Notes"). The
Notes are being issued and sold to you on this date under and pursuant to the
Note Purchase Agreement dated as of August 10, 2000 (the "Agreement") among the
Company and each of you. This opinion letter is being delivered pursuant to
Section 3B of the Agreement.
In that connection we have examined the following:
(a) The Agreement;
(b) A copy of the Certificate of Limited Partnership of the
Company and all amendments thereto certified by the Secretary of State of the
State of Delaware and certified by the Secretary of Heritage Holdings, Inc., a
Delaware corporation ("Heritage"), in its capacity as the general partner of
the Company;
(c) A copy of the Amended and Restated Agreement of Limited
Partnership of the Company, as amended to the date hereof and certified by the
Secretary of Heritage;
(d) A copy of the Certificate of Incorporation of Heritage
and all amendments thereto certified by the Secretary of State of the State of
Delaware and certified by the Secretary of Heritage;
(e) A copy of the By-laws of Heritage, as amended to the date
hereof and certified by the Secretary of Heritage;
(f) A copy of the resolutions adopted by the Board of
Directors of Heritage, in its capacity as the general partner of the Company,
with respect to the authorization of the Agreement, the issue, sale and
delivery of the Notes, the preparation and delivery of an Additional Parity
Debt Designation (the "Designation") with respect to the Notes and under the
Intercreditor Agreement (as hereinafter defined) and related matters, as
certified by the Secretary of Heritage;
(g) The opinion of Doerner, Saunders, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
L.L.P., counsel to the Company, dated the date hereof and delivered responsive
to Section 3B of the Agreement;
(h) The Notes delivered on the date hereof;
(i) The Intercreditor and Agency Agreement dated as of June
28, 1996, among Bank of Oklahoma, National Association (as successor to The
First National Bank of Boston), in its capacity as Administrative Agent, the
Purchasers listed in Schedule I attached thereto and Wilmington Trust Company,
in its capacity as Collateral Agent (the "Intercreditor Agreement");
(j) The Supplement to Intercreditor and Agency Agreement
dated as of August 10, 2000 among Bank of Oklahoma, National Association (as
successor to The First
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171
National Bank of Boston), in its capacity as Administrative Agent, the
Purchasers listed therein and Wilmington Trust Company, in its capacity as
Collateral Agent;
(k) The Designation;
(l) The letter of Winston & ▇▇▇▇▇▇ dated July 6, 2000 (the
"Notice Letter") having attached thereto various documents described in Section
6 of the Intercreditor Agreement;
(m) Such certificates of officers of the Company and Heritage
and of public officials as we have deemed necessary to give the opinions
hereinafter expressed; and
(n) Such other documents and matters of law as we have deemed
necessary to give the opinions hereinafter expressed.
In such examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures (other than of the Company), the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified, photostatic
or facsimile copies and the authenticity of the originals of such copies.
As to various questions of fact material to the opinions rendered
herein, we have relied upon the representations in the documents examined by us
and upon certificates of public officers and officers of the Company and
Heritage. We have assumed the due execution and delivery, pursuant to due
authorization, of the documents that we have examined by each party thereto
other than the Company, that each such other party has the full power,
authority and legal right to enter into and perform its obligations under each
such document to which it is a party, that each such document constitutes the
valid and legally binding obligation of each such other party, enforceable
against such party in accordance with its terms, and that all necessary
consents, approvals, authorizations, registrations, declarations and filings
(governmental or otherwise) and all other conditions precedent with respect to
the legal and valid execution and delivery of, and performance under, the
documents that we have examined by each party thereto other than the Company
have been made or satisfied or have occurred and are in full force and effect.
Based upon the foregoing, we are of the opinion that:
1. The Company is a limited partnership validly existing
under the laws of the State of Delaware and has the power and
authority to enter into and deliver the Agreement and to issue the
Notes. No opinion is expressed in this paragraph as to the creation,
perfection or priority of any security interest or lien intended to be
created by the Agreement.
2. The Agreement has been duly authorized by all necessary
partnership action on the part of the Company, has been duly executed
and delivered by the Company
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172
and constitutes the legal, valid and binding contract of the Company
enforceable against the Company in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent conveyance and similar laws
affecting creditors' rights generally, and general principles of
equity (regardless of whether the application of such principles is
considered in a proceeding in equity or at law).
3. The Notes have been duly authorized by all necessary
partnership action on the part of the Company, and the Notes being
delivered on the date hereof have been duly executed and delivered by
the Company and constitute the legal, valid and binding obligations of
the Company enforceable against the Company in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent conveyance and
similar laws affecting creditors' rights generally, and general
principles of equity (regardless of whether the application of such
principles is considered in a proceeding in equity or at law).
4. The issuance, sale and delivery of the Notes under the
circumstances contemplated by the Agreement do not, under existing
law, require the registration of the Notes under the Securities Act of
1933, as amended, or the qualification of an indenture in respect
thereof under the Trust Indenture Act of 1939, as amended.
5. The issuance and sale of the Notes and the execution,
delivery and performance by the Company of the Agreement do not
conflict with, or result in any breach of any of the provisions of, or
result in the creation or imposition of a Lien (as defined in the
Agreement) upon any of the property of the Company pursuant to (i) the
provisions of the Certificate of Limited Partnership and Amended and
Restated Agreement of Limited Partnership of the Company, (ii) any
judgment, decree, writ, injunction, order or award of any arbitrator,
court or governmental authority known to us which is applicable to the
Company or by which the Company may be bound, (iii) any statute, or
regulation of any governmental agency or authority of, the State of
New York or the United States, applicable to the Company or its
properties (except that no opinion is expressed as to the Public
Utility Holding Company Act of 1935, as amended) or (iv) any agreement
or other instrument known to us to which the Company is a party or by
which the Company may be bound (except we express no opinion as to
violations of financial covenants where the compliance with such
covenants is dependent upon a financial calculation).
6. The issuance of the Notes and the use of the proceeds of
the sale of the Notes in accordance with the provisions of, and as
contemplated by, the Agreement (including, without limitation, the
representations and warranties set forth in the Agreement) do not
violate or conflict with Regulation T, U or X of the Board of
Governors of the Federal Reserve System.
C-1-4
173
7. No approval, consent or withholding of objection on the
part of, or filing, registration or qualification with, any New York
or Federal governmental body, or filing, registration or qualification
under the General Corporation Law of the State of Delaware or the
Revised Uniform Limited Partnership Act of the State of Delaware, is
necessary in connection with the execution and delivery by the Company
of the Agreement or the Notes.
8. The Notes constitute Additional Parity Debt, as such term
is defined in the Intercreditor Agreement, and the Agreement
constitutes an Additional Parity Debt Agreement, as such term is
defined in the Intercreditor Agreement. Each of you constitutes an
Additional Parity Lender, as such term is defined in the Intercreditor
Agreement and, accordingly, are entitled to the rights and benefits of
(and subject to the obligations of) an Additional Parity Lender under
the Intercreditor Agreement and under the Security Agreement, as such
term is defined in the Intercreditor Agreement. No opinion is
expressed in this paragraph as to the creation, perfection or priority
of any security interest or lien intended to be created by the
Intercreditor Agreement or the Security Agreement.
The opinions as expressed herein are subject to the following
limitations and qualifications:
(a) we express no opinion as to (i) the enforceability of the
provisions of Section 11R of the Agreement insofar as such Section
relates to the waiver of trial by jury with respect to proceedings in
the State of New York and (ii) the choice of governing law to the
extent that any such provision (a) is to be considered by any court
other than a court of the State of New York or (b) purports to exclude
reference to the conflict of law principles of the law of the State of
New York;
(b) we express no opinion as to the validity, binding effect
or enforceability of any indemnification provisions of the Agreement;
(c) we express no opinion as to the validity, binding effect
or enforceability of the severability provisions of any of the
Agreement;
(d) we express no opinion as to the enforceability of
cumulative remedies to the extent such cumulative remedies purport to
or would have the effect of compensating the party entitled to the
benefits thereof in amounts in excess of the actual loss suffered by
such party; and
(e) requirements in the Agreement specifying that provisions
thereof may only be waived in writing may not be valid, binding or
enforceable to the extent that an oral agreement or an implied
agreement by trade practice or course of conduct has been created
modifying any provision of such agreement.
C-1-5
174
Our opinion is limited to the laws of the State of New York, the
General Corporation Law of the State of Delaware, the Revised Uniform Limited
Partnership Act of the State of Delaware and the Federal laws of the United
States and we express no opinion on the laws of any other jurisdiction.
Our opinions set forth in this letter are based upon the facts in
existence and laws in effect on the date hereof and we expressly disclaim any
obligation to update our opinions herein, regardless of whether changes in such
facts or laws come to our attention after the delivery hereof.
Whenever in our opinions we indicate that the existence or absence of
facts is based on our knowledge or awareness, we are referring to the current
actual knowledge of Winston & ▇▇▇▇▇▇ attorneys who have given substantive
attention to matters concerning the Company during the course of our
representation of the Company in connection with the transactions contemplated
by the Agreement.
This opinion letter is furnished by us to you for your benefit and for
the benefit of any institutional investors which are transferees of the Notes
(assuming such transfer was in compliance with applicable laws and the terms
and conditions of the Agreement) for use in connection with the transactions
contemplated by the Agreement and no other Person shall be entitled to rely on
this opinion letter without our prior written consent; provided that you may
provide a copy of this opinion letter to the National Association of Insurance
Commissioners for compliance purposes only. This opinion letter is limited to
the matters stated herein, and no opinion is implied or may be inferred beyond
the matters expressly stated herein.
Very truly yours,
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175
SCHEDULE I
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇▇ ▇▇▇▇▇▇▇ Variable Life Insurance Company
Mellon Bank, N.A., Trustee for the ▇▇▇▇ Atlantic Master Trust
Mellon Bank, N.A., Trustee under the Long-Term Investment Trust Date
October 1, 1996
Clarica Life Insurance Company-U.S.
Connecticut General Life Insurance Company (nominee is CIG & Co.)
Life Insurance Company of North America (nominee is CIG & Co.)
▇▇ ▇▇▇▇▇▇ Life Insurance Company (nominee is ▇▇▇▇▇▇▇ & Co.)
The Guardian Life Insurance Company of America (nominee is ▇▇▇▇ & Co.)
Metropolitan Life Insurance Company
Nationwide Life Insurance Company
Nationwide Life and Annuity Insurance Company
Nationwide Mutual Fire Insurance Company
Nationwide Mutual Insurance Company
Pacific Life Insurance Company (nominee MAC & Co.)
Commercial Union Life Insurance Company of America
Principal Life Insurance Company
Reliastar Life Insurance Company
Reliastar Life Insurance Company of New York
Northern Life Insurance Company
Sun Life Assurance Company of Canada
Sun Life Assurance Company of Canada (U.S.)
Sun Life Insurance and Annuity Company of New York
176
[DOERNER, SAUNDERS, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, L.L.P. LETTERHEAD]
August 10, 2000
Purchasers under the Note
Purchase Agreement dated
as of August 10, 2000,
and Supplemental Purchasers
who qualify as Additional
Parity Lenders under Note
Purchase Agreement dated
as of August 10, 2000, and
Wilmington Trust Company as
Collateral Agent under
Security Agreement dated
as of June 28, 1996
Ladies and Gentlemen:
We have acted as counsel for Heritage Operating, L.P., a Delaware
limited partnership (the "Company"), and Heritage Holdings, Inc., a Delaware
corporation (the "General Partner"), in connection with the execution and
delivery of the Note Purchase Agreement dated August 10, 2000 (the "Note
Purchase Agreement") among the Company and you. This opinion is being delivered
pursuant to Section 3B of the Note Purchase Agreement. All capitalized terms
used in this opinion and not otherwise defined herein shall have the meanings
ascribed thereto in the Note Purchase Agreement.
In connection with this opinion, we have examined the Note Purchase
Agreement, the Series A Notes, the Series B Notes, the Series C Notes, the
Series D Notes, the Series E Notes, the Series F Notes, and such other
certificates, documents, statutes and other instruments as we have deemed
necessary. In rendering this opinion, we have relied in respect of matters of
fact upon certificates of officers and employees of the General Partner and
upon information obtained from public officials. In addition, we have assumed
that all documents submitted to us as originals are authentic, that all
EXHIBIT C-2
(to Note Purchase Agreement)
177
August 10, 2000
Page 2
copies submitted to us conform to genuine originals thereof, and that the
signatures on all documents examined by us are genuine.
Based upon the foregoing and subject to the limitations,
qualifications and exceptions set forth herein, we are of the opinion that:
1. The Company has been duly formed and is validly existing as a
limited partnership under the laws of the State of Delaware, with all necessary
partnership power and authority to enter into and perform under the Note
Purchase Agreement and the Series A Notes, the Series B Notes, the Series C
Notes, the Series D Notes, the Series E Notes and the Series F Notes.
2. The Company is duly qualified and is in good standing as a foreign
limited partnership in each jurisdiction in which, to our knowledge after
having made due inquiry with respect thereto, the character of its properties
or activities makes such qualification necessary.
3. The Note Purchase Agreement, the Series A Notes, the Series B
Notes, the Series C Notes, the Series D Notes, the Series E Notes and the
Series F Notes have been duly authorized, executed and delivered by the
Company.
4. To our knowledge there is no legal or governmental proceeding
pending or threatened to which the Company is a party or to which any of its
properties is subject that if adversely determined, would have a material
adverse effect on its properties or business taken as a whole.
5. The Company is not a "gas utility company," and the General Partner
is not a "holding company" or a "subsidiary company" of a "holding company" or
an affiliate thereof, within the meaning of the Public Utility Holding Company
Act of 1935, as amended, and neither the Company nor the General Partner is
subject to regulation thereunder.
6. The delivery to the Collateral Agent of the Certificates
(accompanied by the stock powers in respect thereof) issued to the Company
representing the Company's ownership in each of AGL Propane, L.L.C., United
Cities Propane Gas, L.L.C., Peoples Gas Company, L.L.C., and Retail Propane
Company, L.L.C. (the "Acquired Entities") acquired under the Contribution
Agreement dated as of June 15, 2000 among the Company, Heritage Propane
Partners, L.P. and U.S. Propane, L.P., and the Collateral Agent retaining
possession of said Certificates will grant to the Secured Creditors, as defined
in the Security Agreement dated as of June 28, 1996 among the General Partner,
the Company and Wilmington Trust Company, as Collateral Agent, a valid and
perfected security interest in all of the right, title and interest of the
Company in such collateral held by each of the Acquired Entities, which will be
perfected by the Collateral Agent retaining possession of said certificate.
The opinions expressed herein are limited to the laws of the States of
Delaware and Oklahoma. We express no opinion with respect to the title of the
Company to and of its real or personal property.
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178
August 10, 2000
Page 3
In rendering the opinions expressed in paragraph 5, we have relied in
part upon the June 19, 1996 no-action letter from the Securities and Exchange
Commission, a copy of which is attached hereto and the factual description of
the Company's business set forth therein.
The opinions expressed in this letter are limited to the matters
stated herein and no opinion is to be implied or may be inferred beyond the
matters stated herein. This opinion has been rendered as of the date hereof,
and we disclaim any obligation to advise you of any changes in the
circumstances, laws or events that may occur subsequent to the date hereof or
otherwise to update this opinion.
Each of the purchasers of Notes under the Note Purchase Agreement and
any insurance company, other financial institution or "accredited investor"
within the meaning of rule 501, Sections (a)(l), (a)(3) or (a)(7) of Regulation
D under the Securities Act that becomes a successor, transferee, assignee or
holder of any Note in compliance with applicable laws and the Note Purchase
Agreement, as the case may be, may rely upon this letter in connection with the
issue of the Notes as if such opinion letter were addressed and delivered to
each of such persons on the date hereof. Subject to the foregoing, this opinion
letter may be relied upon only by you in connection with the issue of the Notes
and no other use or distribution of this opinion letter may be made without our
prior written consent; provided that you may provide a copy of this opinion
letter to the National Association of Insurance Commissioners for compliance
purposes only. This opinion letter is limited to the matters stated herein, and
no opinion is implied or may be inferred beyond the matters expressly stated
herein.
We further advise you that Messrs. Winston & ▇▇▇▇▇▇ and Fried, Frank,
Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ may rely on this opinion in rendering their opinions
to you of even date herewith.
Very truly yours,
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179
[DOERNER, SAUNDERS, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LETTERHEAD]
April 26, 1996
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Assistant Director (Public Utility Regulation)
Division of Investment Management
Securities and Exchange Commission
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Mail Stop 10-6
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Re: Request for Interpretation under Section 2(a)(4)
of the Public Utility Holding Company Act of 1935
Dear ▇▇. ▇▇▇▇▇▇▇▇▇:
On behalf of Heritage Holdings, Inc. ("HHI") and Heritage Propane
Partners, L.P., a Delaware limited partnership ("HPP"), we are writing to
request that the Staff of the Division of Investment Management, Office of
Public Utility Regulation, concur in our view that the phrase "distribution
only in enclosed portable containers," as used in Section 2(a)(4) of the Public
Utility Holding Company Act of 1935 (the "Act"), includes the delivery of
propane gas in containers built or mounted on trucks to customers who share a
common storage container that is connected by pipe to their homes or
businesses, as described below. In the alternative, we respectfully request
that the Staff agree that the propane business as described in this letter is
not the business of a gas utility company.
I. Background
HHI is a privately held Delaware corporation that is currently exempt
from regulation as a public utility holding company pursuant to the status of
its subsidiaries under Rule 7 under the
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180
Act.(1) HHI is engaged in the sale of propane gas to retail and other customers
through certain of its indirect subsidiaries.(2)
II. Retail Business Operations
Propane is a by-product of natural gas processing and oil refining. It
is used primarily in rural areas where natural gas is not readily available and
is the fourth largest energy source in the U.S., after electricity, natural gas
and fuel oil. Approximately 4% of U.S. households use propane, including 1.5
million farms. Propane is used primarily for residential, commercial, and
industrial heating and water heating. Propane also has a variety of other
applications in agriculture and industry.
HHI's subsidiaries currently distribute propane to over 170,000
residential, commercial, industrial, agricultural and engine fuel customers.
The combined fiscal year 1995 retail sales volume was approximately 98 million
gallons.
The Operating Partnership will carry out the propane businesses now
conducted by HHI's subsidiaries, including the retail and wholesale
distribution of propane for residential, commercial, industrial, agricultural
and engine fuel uses. The Operating Partnership, through a subsidiary
corporation, also will engage in other activities related to the sale of
propane, such as equipment and appliance sales and servicing.
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(1) See Rule 7 under the Act. 17 C.F.R. 250.7. HHI's subsidiaries could be
considered to be gas utility companies, but for the fact that they are
engaged in a business other than a gas utility company and their annual
average gross sales of manufactured gas (propane) not otherwise exempt
propane for the three preceding calendar years do not exceed $5,000,000.
(2) HHI's wholly-owned subsidiary Heritage Propane Corporation ("HPC") has
several subsidiaries that sell gas from bulk storage tanks through metered
systems utilizing pipe distribution and customer meters.
HHI is planning to restructure its propane business in a transaction
currently expected to close in early June, 1996. As part of the
transaction, substantially all of HHI's direct and indirect
subsidiaries will be merged into HHI. HHI will then combine the
propane businesses of its subsidiaries in a limited partnership (the
"Operating Partnership"). Upon completion of these transactions, HHI
(the "General Partner") will hold a 1% general partnership interest in
the Operating Partnership. The General Partner also will hold a 1%
general partnership interest and, directly and indirectly, a 47%
limited partnership interest in HPP (the "Partnership"). The
Partnership will hold a 99% limited partnership interest in the
Operating Partnership. The Partnership has filed a registration
statement with the Commission on Form S-1 covering this transaction
(File No. 333-4018). Three copies of the registration statement are
enclosed.
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181
The Operating Partnership will obtain propane from a large number of
sources, including oil companies and natural gas processors in the United
States and Canada.(3) Propane purchased by the Operating Partnership will be
delivered (by truck, barge or rail) to the Operating Partnership's district
locations for storage, or to other storage sites, prior to delivery to
customers. HHI's subsidiaries distribute propane from 118 such district
locations in 15 states. At these district locations, the Operating Partnership
will store and sell propane, distribute propane to customers by truck, and
sell, install and service equipment and appliances that use propane.
All deliveries of propane from the Operating Partnership's district
storage locations will be made by trucks owned or leased by the Operating
Partnership. Some propane is delivered to customers in portable cylinders by
rack truck. When a rack truck makes a delivery, full cylinders with a capacity
of 5 to 25 gallons will be left with the customer and empty cylinders will be
picked up and refilled at the Operating Partnership's sales and service center.
Other propane will be delivered in larger containers built or mounted
on trucks ("bulk delivery"). Bulk delivery involves the use of special tank
trucks, called bobtails, to fill tanks ("containers") located on the customer's
premises. A bobtail is a truck that carries a pressurized portable tank that
generally hold approximately 2,500 to 3,000 gallons of propane. Propane is then
pumped from the bobtail into a stationary storage tank located on the
customer's premises. The capacity of these storage tanks ranges from
approximately 100 gallons to approximately 1,200 gallons, with the size
depending on the area of the country where the customer lives. Most of these
containers sit above ground, are portable, i.e., the container is delivered to
and removed from the customer's premises by truck, and are connected to the
customer's home, business or appliance or other equipment by pipe. At the
current time approximately 85% of these customer tanks are owned by the selling
entity. The Operating Partnership will rent these containers that it owns to
customers, and, in limited circumstances, sell containers to customers, or
deliver propane to customers who own their storage containers.(4)
The Operating Partnership also will deliver propane to certain end
users of propane in larger trucks, known as "transports," which carry portable
tanks with an average capacity of approximately 9,000 to 10,500 gallons. These
customers include industrial customers and large-scale heating accounts.
-------------
(3) HHI's subsidiaries and HPP do not produce propane. They acquire propane
from over 40 oil companies and natural gas processors in the U.S. and
Canada in conjunction with purchases on the spot market.
(4) In the propane industry, cylinders and tanks used for the transportation
or storage of propane are collectively referred to as bottles or barrels.
Cylinders are constructed to U.S. Department of Transportation
specifications and do not exceed 1,000 lb. water capacity (or 420 lb.
propane capacity). Tanks are constructed in accordance with the American
Society of Mechanical Engineers (ASME) Code and generally range in size
from 120 gallons water capacity to 30,000 gallons water capacity.
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182
III. Metered Sales
Some of the Operating Partnership's propane sales will be to customers
whose usage is measured by meter ("Metered Sales"). Metered Sales may be to
single family homes, condominiums, apartment buildings, subdivisions, trailer
parks, and businesses in commercial developments such as strip malls. A metered
customer in a single family home may have exclusive use of a container, or may
be connected by pipe to a centrally located, portable storage tank that is
shared with other customers, each of whose usage is metered.(5) When several
customers share storage containers, the containers, pipes, and meters in most
cases are contained within the boundaries of the customers' shared common
premises. Today, in new installations, the number of individual customers
served by a single container almost always is limited to nine or less to avoid
issues arising under the Pipeline Safety Act.(6)
All propane supplied to customers will be supplied in the same way, no
matter whether the storage tank is used by a single customer or several
customers. Propane will be delivered in enclosed portable containers, i.e., by
bobtail or transport, and stored in enclosed portable containers. The Operating
Partnership will not deliver propane to metered customers by pipeline. Metered
customers' containers may be installed and owned by the Operating Partnership,
but the Operating Partnership also may sell the containers to the customers or
property owner (e.g., the owner of a trailer park or an apartment building). In
almost all circumstances meters will be installed, owned and serviced by the
Operating Partnership.
Pipes needed to feed propane from the storage containers to the
customers, homes or businesses may be owned by the property owner, the
Operating Partnership, or both. For example, the Operating Partnership may have
a contract to supply propane to a mobile home park for a ten year period. The
Operating Partnership will provide one or more central storage containers that
connect to the trailers through underground pipes. The Operating Partnership
may install the containers and pipes and sell them to the owner of the
property, either immediately upon installation or over the period of the
contract, or it will retain ownership of the containers
-------------
(5) Customers who share a common storage tank will not necessarily pay the
Operating Partnership directly for their propane usage. In some cases,
such as an apartment building, the owner or management of the building may
pay for all propane usage by tenants and factor the cost into the tenants'
rent. In other cases, each customer may be separately billed by the
Operating Partnership.
(6) This type of metered service to residences most often is provided where a
new housing development is being constructed beyond the service area of
the local natural gas utility. If the developer wants to offer home buyers
the option of gas appliances, it will install equipment and piping and
provide propane, with the expectation that the homes will be converted to
natural gas when that service reaches the area.
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183
and pipes and use them to sell propane to the property owner at his meter.(7)
In each case, the Operating Partnership will install, service and retain
ownership of the meters.
IV. Competition
Propane competes with other energy sources, primarily fuel oil and
electricity. Propane generally is less expensive than electricity and more
expensive, but also more efficient and cleaner, than fuel oil. Propane
generally is not competitive with natural gas, which is less expensive than
propane, except for certain industrial uses. Therefore, many propane markets
are located in areas not served by natural gas.
Competition in the propane retail market is primarily local in nature.
The Operating Partnership will compete with several large, full service
marketers and approximately 8,000 small independent operators, as well as with
marketers of fuel oil and electricity. The ten largest propane companies serve
less than 35% of the domestic retail market for propane.
In addition, propane competes with gasoline and diesel fuel in the
engine fuel market and the wholesale market for propane is very competitive.
Retail distributors, who will purchase a significant amount of the propane that
will be sold at wholesale by the Operating Partnership, generally require
propane suppliers to submit bids for proposed sales. Propane sales to
industrial end users also involve competitive pricing, particularly as some
industrial users of propane also have the capacity to use other fuels, such as
fuel oil.
V. Section 2(a)(4)
Section 2(a)(4) of the Act defines "gas utility company" to mean
any company which owns or operates facilities used for the
distribution at retail (other than distribution only in enclosed
portable containers, or distribution to tenants or employees of the
company operating such facilities for their own use and not for
resale) of natural or manufactured gas for heat, light or power.(8)
-------------
(7) When the Operating Partnership supplies propane to an apartment building,
the storage tank will be located outside the building and connected to
individual apartments by pipe and meter. The Operating Partnership may own
the container and external pipes or may sell them to the building owner.
However, the Operating Partnership will not own the pipes inside the
building that feed the propane to individual units.
(8) Section 2(a)(4) also provides that the Commission, upon application, shall
by order declare a company operating any such facilities not to be a "gas
utility company" if the Commission finds that:
(A) such company is primarily engaged in one or more
businesses other than the business of a gas utility
company, and
C-2-8
184
Propane distributors such as HHI's subsidiaries generally have relied upon the
provisions of Rule 7 and the "distribution only in enclosed portable
containers" exclusion from the definition of "gas utility company." However,
due to uncertainty about the applicability of the phrase "distribution only in
enclosed portable containers" to the delivery of propane by truck to a
centrally located container serving more than one customer, some propane
companies have sought and received Commission orders under Section 2(a)(4)
declaring that they are not "gas utility companies."(9) The applications for
such orders and the orders themselves were premised, in part, on the "small
amounts" of propane sold to metered customers who used shared storage
containers, both as a percentage of the applicant's total revenues and as a
total dollar amount.(10)
In April of 1995, UGI Corporation ("UGI") sought and obtained a "no
action" letter based on circumstances almost identical to those presented
here.(11) UGI's claim for exemption was based on the fact that the exclusionary
phrase "other than distribution only in enclosed portable containers" in the
Section 2(a)(4) definition of "gas utility company" can and should be construed
to include the facilities described in their letter which are those described
herein that are used to distribute propane gas to metered customers who share
storage containers. This is because the method by which propane is delivered to
those metered customers is virtually the same as that by which propane is
delivered to all other customers by means of enclosed portable containers.
As described above, the Operating Partnership will deliver propane to
metered customers by bobtail or transport and pump the propane from the truck
into a centrally located enclosed portable container from which it will be
dispensed as used by the customers. The Commission orders cited earlier have
implicitly recognized that propane delivered by a bobtail truck is delivered in
an "enclosed portable container." While metered customers who share storage
containers incidentally require pipes to carry the propane from the central
storage container to their homes, businesses, equipment or appliances, and a
meter is attached to track each customer's usage, this does not alter the fact
that the propane is delivered to metered customers and stored for their use in
"enclosed portable containers." Further, even a non-metered customer
--------------------------------------------------------------------------------
(B) by reason of the small amount of natural or
manufactured gas distributed at retail by such
company it is not necessary in the public interest
or for the protection of investors or consumers that
such company be considered a gas utility company for
purposes of [the Act].
(9) See, e.g., Petrolane Gas Service Limited partnership, Holding Co. Act
Release No. 25846 (July 7, 1993); AmeriGas Propane, Inc., Holding Co. Act
Release No. 25434 (Dec. 20, 1991); AP Propane, Inc., Holding Co. Act
Release No. 24537 (Dec. 23, 1987); Cal Gas Corporation, Holding Co. Act
Release No. 24407 (June 10, 1987); National Propane Corp., Holding Co. Act
Release No. 23083 (Oct. 11, 1983); and General Development, Utilities,
Inc., Holding Co. Act Release No. 14494 (Jan. 10, 1964).
(10) See Section 2(a)(4) of the Act.
(11) See SEC Ref. No. 97-7-OPUR, UGI Corp. File No. 132-3 (April 5, 1995).
C-2-9
185
who has exclusive use of a storage container must use a small amount of pipe to
feed the propane from the container into his or her home or business and to
connect with the propane-fueled appliance or apparatus. The only differences
are that some metered customers share an enclosed portable container, whereas
other customers each have the exclusive use of a single container, and that the
enclosed portable container shared by several customers will often be larger
than the container used by an individual customer.
The interpretation that the phrase "distribution only in enclosed
portable containers" includes the distribution of propane using centrally
located enclosed portable containers serving several customers also would be
consistent with the policies and purposes of the Act and the Commission
position on enforcement expressed to UGI by the Staff's April 14, 1995 "no
action" response.
VI. Conclusion
For the reasons stated above, we would respectfully ask that the Staff
concur in the case of HHI and HPP, as it did for UGI, that the phrase
"distribution only in enclosed portable containers" includes the delivery of
propane by truck to containers that are shared by multiple customers whose
usage is measured by meter. In the alternative, we would respectfully request
that the Staff agree that the propane business as described in this letter is
not the business of a gas utility company.
Please call me or H. ▇▇▇▇▇ ▇▇▇▇▇▇ at (▇▇▇) ▇▇▇-▇▇▇▇ if you need any additional
information or have any questions.
Very truly yours,
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. of
DOERNER, SAUNDERS, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
LTC/prb
CC: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Special Counsel (Public Utility Regulation)
Office of Public Utility Regulation
Division of Investment Management
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Office of Public Utility Regulation
Division of Investment Management
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
▇. ▇. ▇▇▇▇▇
H. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
H. ▇▇▇▇▇ ▇▇▇▇▇▇
C-2-10
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
OFFICE OF
PUBLIC UTILITY REGULATION
June 19, 1996
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq.
Doerner, Saunders, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇. ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Heritage Holdings, Inc.
File No. 132-3
Dear ▇▇. ▇▇▇▇▇▇▇▇:
Enclosed is our response to your letter of April 26, 1996. Through
incorporation of our answer into the enclosed copy of your letter, we avoid the
need to recite or summarize the facts involved.
Sincerely yours,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Staff Attorney
Enclosures
C-2-11
187
RESPONSE OF THE OFFICE OF Our Ref. No. 96-11-OPUR
PUBLIC UTILITY REGULATION Heritage Holdings, Inc.
DIVISION OF INVESTMENT MANAGEMENT File No. 132-2
Based on the facts and representations in your letter of April 26,
1996, we would not recommend any enforcement action to the Commission under the
Public Utility Holding Company Act of 1935, including section 2(a)(4), against
either Heritage Holdings, Inc. ("HHI") or Heritage Propane Partners, L.P.
("HPP") in the event that HHI or HPP engages in deliveries of propane gas in
containers built or mounted on trucks to customers who share a common storage
container that is connected by pipe to their homes or businesses and whose
usage of the propane gas is measured by meters.
Because this position is based on the representations and facts in
your letter, you should note that any different facts or conditions might
require a different conclusion. Further, this response expresses only the
Division's position on enforcement action. It does not purport to express any
legal conclusion on the questions presented.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Staff Attorney
June 19, 1996
C-2-12
188
[▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P. LETTERHEAD]
August 10, 2000
Wilmington Trust Company, as Collateral Agent
under Certain Documents Referred to in the
Referenced Opinions
To each of the Purchasers listed on Schedule I
attached hereto
Re: Heritage Operating, L.P.
Heritage Holdings, Inc.
Ladies and Gentlemen:
We acted as special New York and Texas counsel for Heritage Operating,
L.P., a Delaware limited partnership (the "Operating Partnership"), and its
general partner, Heritage Holdings, Inc. ("Heritage"), in connection with the
Note Purchase Agreement, dated as of June 25, 1996 (the "Note Agreement"),
among Heritage, the Operating Partnership and the several Purchasers listed in
the Purchaser Schedule attached thereto (the "Purchasers"). We refer to (i) our
opinion, dated July 28, 1996, delivered to the Purchasers pursuant to Section
3B of the Note Agreement (the "Note Agreement Opinion"), and (ii) our opinion,
dated July 28, 1996, to the Purchasers and certain other persons with respect
to certain matters of Texas law (the "Texas Law Opinion" and, together with the
"Note Agreement Opinion," the "Original Opinions"). Capitalized terms used in
this letter without definition shall have the meanings assigned to such terms
in the Note Agreement Opinion.
In your capacity, as the case may be, as the Purchasers listed on
Schedule I attached hereto or as Collateral Agent under certain Documents
referred to the Original Opinions (the "Documents"), you may rely on the
Original Opinions as if they had been addressed to you as of July 28, 1996 (but
not as of any subsequent date), subject to the assumptions, limitations and
qualifications set forth therein.
C-3-2
189
We express no opinion as to any change of law or factual circumstances
subsequent to the date of the Original Opinions, as to any agreements,
instruments or documents other than the Documents as in effect on the date of
the Original Opinions or as to whether any incurrence of indebtedness or other
transaction subsequent to the date of the Original Opinions is in compliance
with the Documents or entitled to any of the benefits thereof.
This opinion is furnished to you solely for your benefit as Collateral
Agent, or the Purchasers, as the case may be, and for the benefit of any
institutional investors which are transferees of the Notes (assuming such
transfer was in compliance with applicable laws and the terms and conditions of
the Agreement) and is not to be used, circulated, quoted or otherwise referred
to for any other purpose without our express written permission; provided that
you may provide a copy of this opinion letter to the National Association of
Insurance Commissioners for compliance purposes only.
Very truly yours,
C-3-2
190
SCHEDULE I
▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company
▇▇▇▇ ▇▇▇▇▇▇▇ Variable Life Insurance Company
Mellon Bank, N.A., Trustee for the ▇▇▇▇ Atlantic Master Trust
Mellon Bank, N.A., Trustee under the Long-Term Investment Trust Date
October 1, 1996
Clarica Life Insurance Company-U.S.
Connecticut General Life Insurance Company (nominee is CIG & Co.)
Life Insurance Company of North America (nominee is CIG & Co.)
▇▇ ▇▇▇▇▇▇ Life Insurance Company (nominee is ▇▇▇▇▇▇▇ & Co.)
The Guardian Life Insurance Company of America (nominee is ▇▇▇▇ & Co.)
Metropolitan Life Insurance Company
Nationwide Life Insurance Company
Nationwide Life and Annuity Insurance Company
Nationwide Mutual Fire Insurance Company
Nationwide Mutual Insurance Company
Pacific Life Insurance Company (nominee MAC & Co.)
Commercial Union Life Insurance Company of America
Principal Life Insurance Company
Reliastar Life Insurance Company
Reliastar Life Insurance Company of New York
Northern Life Insurance Company
Sun Life Assurance Company of Canada
Sun Life Assurance Company of Canada (U.S.)
Sun Life Insurance and Annuity Company of New York
EXHIBIT C-4
(to Note Purchase Agreement)
191
[DOERNER, SAUNDERS, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, L.L.P. LETTERHEAD]
August 10, 2000
Wilmington Trust Company as
Collateral Agent under Certain
Documents Referred to in the
Referenced Opinion
To each of the Purchasers listed on
Schedule I attached hereto
Ladies and Gentlemen:
We acted as special counsel for Heritage Operating, L.P., a Delaware
limited partnership (the "Operating Partnership"), and its general partner,
Heritage Holdings, Inc. ("Heritage"), in connection with the Note Purchase
Agreement dated as of June 25, 1996 (the "Note Agreement"), among Heritage, the
Operating Partnership and the several Purchasers listed in the Purchaser
Schedule attached thereto, and the Note Purchase Agreement (the "Loan
Agreement"), dated August 10, 2000, among the Operating Partnership and the
______ Purchasers listed in the Purchaser schedule attached thereto (the
"Purchasers"). We refer to our opinion dated July 28, 1996, delivered to the
Purchasers pursuant to Section 3B of the Note Agreement (the "Note Agreement
Opinion"). Capitalized terms used in this letter without definition shall have
the meanings assigned to such terms in the Loan Agreement.
In your capacity, as the case may be, as the Purchasers or as the
Collateral Agent under certain Documents referred to in the Note Agreement
Opinion, you may rely on the Note Agreement Opinion as if it had been addressed
to you as of July 28, 1996 (but not as of any subsequent date), subject to the
assumptions, limitations and qualifications set forth therein.
We express no opinion as to any change of law or factual circumstances
subsequent to the date of the Note Agreement Opinion, as to any agreements,
instruments or documents other than the Documents as in effect on the date of
the Note Agreement Opinion or as to whether any incurrence of indebtedness or
other transaction subsequent to the date of the Note Agreement Opinion is in
compliance with the Documents or entitled to any of the benefits thereof.
Very truly yours,
EXHIBIT C-4
(to Note Purchase Agreement)
192
SCHEDULE 5Q
NAME OF COUNSEL DATE OF ORIGINAL OPINION
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇, special Alabama counsel January 14, 2000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, P.A. special Arizona counsel June 28, 1996
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, P.C. special California counsel June 28, 1996
▇▇▇▇▇▇▇▇▇ & Green, P.A., special Florida counsel June 28, 1996
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III, special Kentucky counsel October 20, 1997
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., special Michigan counsel June 28, 1996
▇▇▇▇▇▇▇, Haughey, Hanson, Toole & ▇▇▇▇▇▇▇▇ , P.L.L.P., June 28, 1996
special Montana counsel
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., special New Mexico counsel June 28, 1996
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P., special North Carolina counsel June 28, 1996
Land, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., special South Carolina counsel August 7, 2000
▇▇▇▇▇▇ and ▇▇▇▇▇▇, P.C., special Tennessee counsel October 13, 1997
▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P., special Texas counsel June 28, 1996
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & Paterson, P.S., special Washington June 28, 1996
counsel
193
SCHEDULE ▇▇
▇▇▇▇▇
▇▇▇▇.
-▇-
▇▇▇
▇▇▇▇▇▇▇▇ 6E
INVESTMENTS
1. 50% ownership of Bi-State Propane, a California general partnership
("Bi-State"), and on-going advances to Bi-State pursuant to the
Administrative Services Agreement between Bi-State and Heritage.
195
SCHEDULE 8B
SUBSIDIARIES OF OPERATING PARTNERSHIP
1. Heritage Service Corp., a Delaware corporation (100% owned).
2. Heritage-Bi-State, L.L.C., a Delaware limited liability company (99%
owned).
3. M-P Oils, Ltd., an Alberta corporation (100% owned).
4. M-P Energy Partnership, an Alberta partnership, 60% owned by M-P Oils,
Ltd.
5. Guilford Gas, Inc., a North Carolina corporation (100% owned).
6. Heritage Energy Resources, L.L.C., an Oklahoma limited liability
company (100% owned).
196
SCHEDULE 8C
FOREIGN QUALIFICATION
HERITAGE OPERATING, L.P.
1. Alabama
2. Arizona
3. California
4. Colorado
5. Delaware
6. Florida
7. Georgia
8. Idaho
9. Kentucky
10. Maryland
11. Massachusetts
12. Michigan
13. Minnesota
14. Mississippi
15. Montana
16. New Hampshire
17. New Jersey
18. New Mexico
19. New York
20. North Carolina
21. Oklahoma
22. Oregon
23. Pennsylvania
24. South Carolina
25. Tennessee
26. Texas
27. Vermont
28. Washington
HERITAGE - BI-STATE, L.L.C.
1. California
2. Delaware
3. Nevada
4. Oklahoma
M-P OILS, LTD.
1. Alberta, Canada
197
HERITAGE SERVICE CORP.
1. Arizona
2. California
3. Colorado
4. Delaware
5. Florida
6. Idaho
7. Massachusetts
8. Michigan
9. Minnesota
10. Montana
11. New Mexico
12. North Carolina
13. Oklahoma
14. Oregon
15. South Carolina
16. Texas
17. Washington
-2-
198
SCHEDULE 8G
OTHER INDEBTEDNESS OF
BORROWER AND SUBSIDIARIES
1. Borrower's indebtedness for the Private Placement Notes (1996 Senior
Secured Notes - $120,000,000; 1997 Senior Secured Series A Notes -
$12,000,000; 1997 Senior Secured Series B Notes - $20,000,000; 1997
Senior Secured Series C Notes - $4,285,714.29; 1997 Senior Secured
Series D Notes - $5,000,000; and 1997 Senior Secured Series E Notes -
$5,000,000).
2. Borrower's and Subsidiaries indebtedness for the Bank Credit Facility
($71,650,000).
3. Indebtedness of M-P Energy, Partnership to Bank of Montreal, from time
to time as required for working capital purposes (None).
4. Various purchase money indebtedness ($1,165,344).
5. Various noncompete indebtedness ($13,661,205).
199
SCHEDULE 8H
TITLE TO PROPERTIES
None.
200
SCHEDULE 8W
LABOR MATTERS
1. Collective Bargaining Agreement between PNG Propane Company and
Green's Fuel Company, Divisions of Piedmont Natural Gas Company, Inc.
and Local 1902, International Brotherhood of Electrical Workers.
2. Labor Agreement between Peoples Gas and International Brotherhood of
Electrical Workers, Local 2072, of Miami, Lakeland, Daytona Beach and
Eustis, Florida.
Upon consummation of the U.S. Propane Acquisition, the Company believes that
neither it nor its Subsidiaries will be subject to the above referenced
Agreements.
201
SCHEDULE 9B
SOURCE OF FUNDS
Sun Life Assurance Company of Console ("Sun Life") will be buying $2,000,000 of
the Series F Senior Secured Notes due August 2020 on behalf of a separate
account maintained by Sun Life for the benefit of the Employee Retirement
Income Plan of Minnesota Mining and Manufacturing Company of St. ▇▇▇▇,
Minnesota.