1
EXHIBIT 10.1.4
HERITAGE OPERATING L.P.
FOURTH AMENDMENT TO CREDIT AGREEMENT
This Fourth Amendment to Credit Agreement, dated as of November 18,
1997, is among Heritage Operating, L.P., a Delaware limited partnership (the
"Company"), the Banks party hereto, BankBoston, N.A. (formerly known as The
First National Bank of Boston), as administrative agent (the "Administrative
Agent") for itself and the other Banks, and Bank of Oklahoma, National
Association, as documentation agent (the "Documentation Agent") for itself and
the other Banks. The parties agree as follows:
1. Reference to Credit Agreement: Background.
1.1. Reference to Credit Agreement: Definitions. Reference is
made to 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 and the Third Amendment to Credit
Agreement dated as of September 30, 1997 (as so amended, the "Credit
Agreement"), among the Company, the Banks from time to time party thereto, the
Administrative Agent and the Documentation Agent. The Credit Agreement, as
amended by the Amendments set forth in Section 2 hereof (the "Amendment"), is
referred to as the "Amended Credit Agreement." Terms defined in the Amended
Credit Agreement and not otherwise defined herein are used herein with the
meanings so defined.
1.2. Background. The Company has requested that the Banks
establish a stock acquisition line of credit in favor of Heritage Holding, Inc.
("HHI") to enable the Company to acquire entities through purchases of capital
stock. The Company also has advised the Banks that it desires to establish a
$100,000,000 medium term note program. The Company has requested that the Banks
consent to a number of amendments of the Credit Agreement, as set forth in
Section 2 hereof, relating to the proposed acquisition credit of HHI and the
Proposed medium-term note program.
2. Amendments to Credit Agreement. Subject to all of the terms and conditions
hereof and in reliance upon the representations and warranties set forth or
incorporated by reference in Section 3 hereof, the Credit Agreement is amended
as follows, effective as of November 18, 1997 (the "Amendment Closing Date").
2.1. Section 1.1 of the Credit Agreement is amended by amending
the definition of the term "Additional Parity Debt" to read in its entirety as
follows:
"Additional Parity Debt" means Indebtedness of the Borrower
that both (a) is permitted under Section 7B.2(xiv) hereof or is
incurred with the consent of the Requisite Percentage of the
Banks and (b) constitutes "Additional Parity Debt" as defined in
the Note Purchase Agreement and the Intercreditor Agreement.
2.2. Section 1.1 of the Credit Agreement is further amended by
amending the definition of the term "HHI Acquisition Notes" to read in its
entirety as follows:
"HHI Acquisition Notes" shall mean those certain promissory
notes from Heritage payable to the order of the Banks as more
particularly described and defined in the Letter Agreement among
Heritage, the Banks and the Agents dated November 13, 1997, and
any credit agreement among Heritage, the Banks and the Agents as
contemplated by clause (ii) of such Letter Agreement.
2.3. Section 7B.2 of the Credit Agreement is amended by amending
clause (xiv) thereof to read in its entirety as follows:
-1-
2
(xiv) the Borrower and its Subsidiaries may become and remain
liable with respect to Indebtedness not exceeding $100,000,000 in
aggregate principal amount at any time outstanding, in addition
to that otherwise permitted by the other clauses of this Section
7B.2, if (1) the stated maturity of such Indebtedness (including
all scheduled amortizations of principal thereof) shall not be
earlier than the last Final Maturity Dated in effect on the date
of incurrence of such Indebtedness and (2) on the dated the
Borrower 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
and (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, Event of Default or Noncompliance Event
shall exist.
3. Representations and Warranties. In order to induce the Banks to enter into
this Amendment, the Company represents and warrants to each of the Banks that:
3.1. No Legal Obstacle to Agreements. Neither the execution and
delivery of this Amendment or any other Loan Document, nor the making of any
borrowing under the Amended Credit Agreement, nor the guaranteeing of the Credit
Obligations, nor the securing of the Credit Obligations with the Collateral, nor
the consummation of any transaction referred to in or contemplated by this
Amendment, the Amended Credit Agreement or any other Loan Document, nor the
fulfillment of the terms hereof or thereof or of any other agreement,
instrument, deed or lease contemplated by this Amendment, the Amended Credit
Agreement or any other Loan Document, has constituted or resulted in or will
constitute or result in:
(a) any breach or termination of the provisions of any
agreement, instrument, deed or lease to which the Company is a
party or by which it is bound, or of the Partnership Agreement of
the Company;
(b) the violation of any law, statue, judgment, decree or
governmental order, rule or regulation applicable to the Company;
(c) the creation under any agreement, instrument, deed or
lease of any Lien (other than Liens on the Collateral which
secure the Credit Obligations and Liens permitted by Section 7B.3
of the Amended Credit Agreement) upon any of the assets of the
Company; or
(d) any redemption, retirement or other repurchase obligation
of the Company under the Partnership Agreement or other
agreement, instrument, deed or lease.
No approval, authorization or other action by, or declaration to or filing with,
any governmental or administrative authority or any other Person is required to
be obtained or made by the Company in connection with the execution and delivery
of this Amendment, the performance of this Amendment, the Amended Credit
Agreement or any other Credit Document, the transactions contemplated hereby or
thereby, the making of any borrowing under the Amended Credit Agreement, the
guaranteeing of the Credit Obligations or the securing of the Credit Obligations
with the Collateral.
3.2. Defaults. Immediately after giving effect to this Amendment,
no Default shall exist.
3.3 Incorporation of Representations and Warranties of Company.
Immediately after giving effect to this Amendment, the representations and
warranties set forth in Article VIII of the Amended Credit Agreement will be
true and correct as if originally made on and as of the Amendment Closing Date
(except to the extent of any representation or warranty which refers to a
specific earlier date).
4. Conditions. The effectiveness of each of the amendments set forth in Section
2 hereof shall be subject to the satisfaction of the following conditions:
-2-
3
4.1. Representations. The representations and warranties
contained in Section 3 hereof shall be true and correct on and as of the
Amendment Closing Date with the same force and effect as though originally made
on and as of the Amendment Closing Date; immediately after giving effect to such
amendments, no Default shall exist; and no Material Adverse Change shall have
occurred since August 31, 1996.
4.2. Proper Proceedings. All proper proceedings shall have been
taken by the Company to authorize this Amendment, the Amended Credit Agreement
and the transactions contemplated hereby and thereby. On or before the Amendment
Closing Date, the Agents shall have received copies of all documents, including
legal opinions of counsel and records of corporate proceedings which the Agents
may have requested in connection therewith, such documents, where appropriate,
to be certified by proper corporate or governmental authorities.
4.3. Execution and Delivery. Each of the Company and the Banks
shall have executed and delivered this Amendment.
5. Further Assurances. The Company will, promptly upon the request of the Agent
from time to time, 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 Amendment
and the Amended Credit Agreement.
6. General. The Amended Credit Agreement and all of the other Loan Documents are
each confirmed as being in full force and effect. This Amendment, the Amended
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 Amendment are for convenience of reference only and shall not alter,
limit or otherwise affect the meaning hereof. Each of this Amendment and the
Amended 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 Amendment
shall be governed by and construed in accordance with the laws (other than the
conflict of law rules) of the State of Oklahoma.
-3-
4
Each of the undersigned has caused this Amendment to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
date first above written.
HERITAGE OPERATING, L.P.,
a Delaware limited partnership
By: Heritage Holdings, Inc.,
a Delaware corporation, general
partner
By /s/ H. Xxxxxxx Xxxxxxxx
--------------------------------
H. Xxxxxxx Xxxxxxxx, Vice
President and Chief Financial
Officer
BANKBOSTON, N.A., individually and as
Administrative Agent for the Lenders
By /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Authorized Officer
BANK OF OKLAHOMA, NATIONAL
ASSOCIATION, individually and as
Documentation Agent
By /s/ Xxxxxx X. Xxxxxx
--------------------------------
Authorized Officer
MERCANTILE BANK NATIONAL
ASSOCIATION
By /s/ Xxxx Xxxxxxx
--------------------------------
Authorized Officer
-4-
