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EXHIBIT 10.1.1
FIRST AMENDMENT TO
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT,
dated effective as of October 15, 1999 (the "First Amendment"), is entered into
between and among HERITAGE OPERATING, L.P., a Delaware limited partnership (the
"Borrower") and BANK OF OKLAHOMA, NATIONAL ASSOCIATION ("BOk"), MERCANTILE BANK
NATIONAL ASSOCIATION ("Mercantile") and LOCAL OKLAHOMA BANK, N. A. ("Local")
(BOk, Mercantile and Local, together with each other Person that becomes a Bank
pursuant to Article XI of the Credit Agreement (hereinafter defined)
collectively referred to herein as the "Banks"), BOk, as administrative agent
for the Banks (in such capacity, the "Administrative Agent") and Mercantile, as
co-agent for the Banks (in such capacity, the "Co-Agent").
WHEREAS, the Borrower, the Banks, the Administrative Agent and the
Co-Agent entered into that certain First Amended and Restated Credit Agreement
dated as of May 31, 1999 (the "Credit Agreement"); and
WHEREAS, the Borrower has requested the Banks, the Administrative Agent
and the Co-Agent to increase (i) the maximum outstanding amount of the Working
Capital Loan pursuant to the Working Capital Facility from $20,000,000.00 to
$35,000,000.00 and (ii) the maximum outstanding amount of the Acquisition Loan
pursuant to the Acquisition Facility from $30,000,000.00 to $50,000,000.00 and
to amend and modify certain other provisions of the Credit Agreement concerning
interest rates and fees.
NOW THEREFORE, the Credit Agreement is hereby amended and modified as
follows:
1. The definition of "Applicable Margin" in the Credit Agreement is
deleted in its entirety and replaced with the following:
"Applicable Margin". With respect to any Eurodollar Loan or
with respect to any Base Rate Loan, the rate of interest per annum
determined for any Margin Period:
(i) if the Leverage Ratio on the Financial Statement
Delivery Date commencing such Margin Period was less than 3.25
to 1, the Applicable Margin will be .875% for Eurodollar Loans
and zero for Base Rate Loans;
(ii) if the Leverage Ratio on the Financial Statement
Delivery Date commencing such Margin Period was equal to or
greater than 3.25 to 1 but less than 3.75 to 1, the Applicable
Margin will be 1.125% for Eurodollar Loans and zero for Base
Rate Loans;
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(iii) if the Leverage Ratio on the Financial
Statement Delivery Date commencing such Margin Period was
equal to or greater than 3.75 to 1 but less than 4.25 to 1,
the Applicable Margin will be 1.375% for Eurodollar Loans and
zero for Base Rate Loans;
(iv) if the Leverage Ratio on the Financial Statement
Delivery Date commencing such Margin Period was equal to or
greater than 4.25 to 1 but less than 4.50 to 1, the Applicable
Margin will be 1.500% for Eurodollar Loans and zero for Base
Rate Loans;
(v) if the Leverage Ratio on the Financial Statement
Delivery Date commencing such Margin Period was equal to or
greater than 4.50 to 1 but less than 4.75 to 1, the Applicable
Margin will be 1.625% for Eurodollar Loans and 0.125% for Base
Rate Loans; and
(vi) if the Leverage Ratio on the Financial Statement
Delivery Date commencing such Margin Period was equal to or
greater than 4.75 to 1, the Applicable Margin will be 1.875%
for Eurodollar Loans and .250% for Base Rate Loans.
Notwithstanding the foregoing, if any of the financial
statements required pursuant to Section 7A.1(i) are not delivered
within the time periods specified in Section 7A.1(i), the Applicable
Margin shall be the Applicable Margin set forth in clause (vi) above
until the date such statements are delivered.
2. The definition of "Existing Credit Agreement" in the Credit
Agreement is deleted in its entirety and replaced with the following:
"Existing Credit Agreement" means the Credit Agreement dated
as of June 25, 1996, as amended by the First Amendment to Credit
Agreement dated as of July 25, 1996, the Second Amendment to Credit
Agreement dated as of February 28, 1997, the Third Amendment to Credit
Agreement dated as of September 30, 1997, the Fourth Amendment to
Credit Agreement dated as of November 18, 1997, and the Fifth Amendment
to Credit Agreement dated as of November 13, 1998, between and among
Borrower, BOk, Mercantile and BankBoston, N.A., and BankBoston, N.A.,
as Administrative Agent, and BOk, as Documentation Agent, as replaced
and restated by the First Amended and Restated Credit Agreement dated
as of May 31, 1999, between and among Borrower, BOk, Mercantile and
Local, and BOk, as Administrative Agent, and Mercantile, as Co-Agent.
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3. The definition of "Intercreditor Agreement" in the Credit Agreement
shall be amended by adding at the end thereof the phrase "or the Credit
Agreement, as amended."
4. The definition of "Note Purchase Agreement" in the Credit Agreement
is deleted in its entirety and replaced by the following:
"Note Purchase Agreements" means that certain (i) Note
Purchase Agreement between Heritage, Borrower and the Note Purchasers
named in the Purchaser Schedule annexed as Schedule I thereto dated as
of June 25, 1996, as amended, and (ii) Note Purchase Agreement between
Borrower and the Note Purchasers named in the Initial Purchaser
Schedule annexed thereto dated as of November 19, 1997, as amended.
5. The definition of "Private Placement Notes" in the Credit Agreement
is deleted in its entirety and replaced by the following:
"Private Placement Notes" means (i) the $120,000,000 senior
secured notes issued pursuant to the Memorandum, sold to the Purchasers
and described and defined in the Note Purchase Agreement dated as of
June 25, 1996, as amended, and (ii) the $47,000,000 senior secured
notes described and defined in the Note Purchase Agreement dated as of
November 19, 1997, as amended.
6. Section 2.1.2(a) of the Existing Credit Agreement is amended by
deleting "$30,000,000" and inserting in lieu thereof "$50,000,000." The form of
Exhibits 2.1.3 (Acquisition Loan Advance Request) and 2.1.4 (Acquisition Notes)
annexed to the Existing Credit Agreement are replaced with the form of Exhibits
2.1.3 and 2.1.4 annexed to this First Amendment.
7. Section 2.2.2 of the Existing Credit Agreement is amended by
deleting "$20,000,000" and inserting in lieu thereof "$35,000,000." The form of
Exhibits 2.2.3 (Loan Advance Request [Working Capital Credit Loans]) and 2.2.4
(Working Capital Notes) annexed to the Existing Credit Agreement are replaced
with the form of Exhibits 2.2.3 and 2.2.4 annexed to this First Amendment.
8. Section 3.1 of the Existing Credit Agreement is amended by deleting
"June 30, 1999" and inserting in lieu thereof "October 31, 1999."
9. A new Section 3.12 "Facility Fees" shall be added to the Existing
Credit Agreement as follows:
3.12 Facility Fees. The Borrower shall pay to (a) BOk a one
time facility fee in the amount of $250,000 and (b) Mercantile a one
time facility fee of $100,000, each due on the Closing Date of this
First Amendment.
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10. Section 6.1(vii) of the Existing Credit Agreement is deleted in its
entirety and replaced by the following:
(vii) Opinions of Borrower's Counsel. The Agents shall have
received from Borrower's counsel, Doerner, Saunders, Xxxxxx & Xxxxxxxx,
L.L.P., a favorable written closing opinion addressed to the Agents and
the Banks with respect to the Credit Agreement, as amended by this
First Amendment, satisfactory in form and substance to the
Administrative Agent's counsel including, without limitation, an
opinion that all notices to or consents of the Collateral Agent or the
Note Purchasers and all amendments to the Note Purchase Agreements as
required by the amendments, modifications and transactions contemplated
by this First Agreement have been duly obtained and are in full force
and effect.
11. Section 7B.2(ii)(x) of the Existing Credit Agreement is amended by
deleting "$20,000,000" and inserting in lieu thereof "$35,000,000."
12. Section 7B.2(iii) of the Existing Credit Agreement is amended by
deleting "$30,000,000" and inserting in lieu thereof "$50,000,000."
13. Section 10.1 of the Existing Credit Agreement is deleted in its
entirety and replaced by the following:
10.1 Interests in Loans/Commitments. The percentage interest
of each Bank in the Loans and Letters of Credit, and the Commitments,
shall be computed based on the maximum principal amount for each Bank
as follows:
Maximum Maximum Working Maximum
Acquisition Capital Commitments Percentage
Bank Loan Commitments Loan Commitments Amount Interest
---- ---------------- ---------------- -------------- ----------
BOk $ 26,470,588.24 $ 18,529,411.76 $45,000,000.00 52.9411%
Mercantile $ 14,705,882.35 $ 10,294.117.65 $25,000,000.00 29.4118%
Local $ 8,823,529.41 $ 6,176,470.59 $15,000,000.00 17.6471%
---------------- ---------------- -------------- ----------
Total $ 50,000,000.00 $ 35,000,000.00 $85,000,000.00 100.0000%
================ ================ ============== ==========
The foregoing percentage interests, as from time to time in
effect and reflected in the Register, are referred to as the
"Percentage Interests" with respect to all or any portion of the Loans
and Letters of Credit, and the Commitments.
14. Section 11.4 of the Existing Credit Agreement is deleted in its
entirety and replaced by the following:
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11.4 Sale of Certain Participations. The Borrower, the Agents
and the Banks recognize and acknowledge that BOk is selling
participating interests in its Notes to Stillwater National Bank and
Trust Company ($8,000,000.00) and MidFirst Bank ($10,000,000.00),
respectively.
15. Existing Credit Agreement/Counterparts. All of the remaining terms,
provisions and conditions of the Existing Credit Agreement, except as otherwise
expressly amended and modified by this First Amendment, shall continue in full
force and effect in all respects. This First Amendment may be executed in
multiple counterparts, each of which shall be deemed an original and all of
which shall constitute a single First Amendment. Delivery of an executed
counterpart of a signature page to this Agreement by telecopier shall be as
effective as delivery of a manually executed counterpart of this Agreement.
16. Intercreditor Agreement/Security Agreement. The Borrower confirms
that it has reviewed and approved the terms of the Intercreditor Agreement,
including without limitation, the setoff sharing provisions set forth in Section
13(c) thereof. The Borrower agrees that any setoffs shared under the terms of
the Intercreditor Agreement with the Purchasers of the Private Placement Notes,
to the extent of the portions so shared, will not be deemed to pay down the
Loan. The Borrower further confirms and represents to the Banks, the
Administrative Agent and the Co-Agent that (i) the additional $35,000,000.00
available under the Commitments ($15,000,000.00 under the Working Capital Loan
Facility and $20,000,000.00 under the Acquisition Facility) are secured by the
Security Agreement and (ii) any amendments to or modifications of the Security
Agreement or the Intercreditor Agreement and any notice to or consent of the
Collateral Agent required by virtue of the increased Commitments or other
transactions contemplated by this First Amendment have been duly and validly
consummated, given or obtained, as the case may be, and that such amendments,
modifications or consents remain in full force and effect.
17. Further Assurances. The Borrower will, upon the request of the
Agent from time to time, promptly execute, acknowledge and deliver, and file and
record, all such instruments and notices, and take all such action, as the
Agents deem necessary or advisable to carry out the intent and purposes of this
First Amendment and the Existing Credit Agreement.
18. General. The Existing Credit Agreement and all of the other Loan
Documents are each confirmed as being in full force and effect. This First
Amendment, the Existing Credit Agreement and the other Loan Documents referred
to herein or therein constitute the entire understanding of the parties with
respect to the subject matter hereof and thereof and supersede all prior and
current understandings and agreements, whether written or oral, with respect to
such subject matter. The invalidity or unenforceability of any provision hereof
shall not affect the validity and enforceability of any other term or provision
hereof. The headings in this First Amendment are for convenience of reference
only and shall not alter, limit or otherwise affect the meaning
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hereof. Each of this First Amendment and the Existing Credit Agreement is a Loan
Document and may be executed in any number of counterparts, which together shall
constitute one instrument, and shall bind and inure to the benefit of the
parties and their respective successors and assigns including as such successors
and assigns all holders of any Note. This First Amendment shall be governed by
and construed in accordance with the laws (other than the conflict of law rules)
of the State of Oklahoma.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to Amended and Restated Credit Agreement to be duly executed and delivered in
Tulsa, Oklahoma, effective as of the 15th day of October, 1999, by the
undersigned duly authorized officers thereof.
"Borrower"
HERITAGE OPERATING, L.P., a
Delaware limited partnership
By: Heritage Holdings, Inc., a Delaware
corporation, general partner
By /s/ H. XXXXXXX XXXXXXXX
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H. Xxxxxxx Xxxxxxxx
President
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"Banks"
BANK OF OKLAHOMA, NATIONAL
ASSOCIATION
By
Xxxxxx X. Xxxxxx, Senior Vice President
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MERCANTILE BANK NATIONAL
ASSOCIATION
By
Xxxxxxx X. Xxxxxx, Vice President
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LOCAL OKLAHOMA BANK, N.A.
By
Xxxxxxxxx X. Blue, Senior Vice President
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"Administrative Agent"
BANK OF OKLAHOMA, NATIONAL
ASSOCIATION
By
Xxxxxx X. Xxxxxx, Senior Vice President
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"Co-Agent"
MERCANTILE BANK NATIONAL ASSOCIATION
By
Xxxxxxx X. Xxxxxx, Vice President
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