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FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of July 25, 1996,
but effective for all purposes as of June 28, 1996, is entered into between and
among HERITAGE OPERATING, L.P., a Delaware limited partnership (the "Borrower")
and THE FIRST NATIONAL BANK OF BOSTON ("Bank of Boston") and BANK OF OKLAHOMA,
NATIONAL ASSOCIATION ("BOk") (Bank of Boston and BOk, together with each other
Person that becomes a Bank pursuant to Section 11 of the Credit Agreement
(hereinafter defined) collectively referred to herein as the "Banks"), Bank of
Boston as administrative and structuring agent for the Banks (in such capacity,
the "Administrative Agent") and BOk, as documentation agent for the Banks (in
such capacity, the "Documentation Agent").
WHEREAS, the Borrower, the Banks, the Administrative Agent and the
Documentation Agent entered into that certain Credit Agreement dated as of June
25, 1996 (as amended and modified, collectively the "Credit Agreement"); and
WHEREAS, the Borrower has requested the Banks, the Administrative
Agent and the Documentation Agent to amend and modify certain provisions of
Article VII of the Credit Agreement to correct and clarify certain technical
errors and inadvertent omissions; and
WHEREAS, the Banks, the Administrative Agent and the Documentation
Agent are willing to make such requested amendments and modifications, subject
to clarification of the inclusion of Borrower's calculations of post
acquisition compliance with financial covenants as a part of the
Acquisition/Capex Due Diligence Packet described and defined in Section 2.1.3
of the Credit Agreement.
1. Clauses (vi) and (x) of Section 7B.2 of the Credit Agreement
are amended and modified t delete references therein to "clause (xiii)" and to
insert therein in lieu of each such reference the phrase "clause (xiv)".
2. Clause (ix) of Section 7B.2 of the Credit Agreement is deleted
in its entirety.
3. Clause (xiii) of Section 7B.2 of the Credit Agreement is
deleted and replaced in its entirety by the following:
"(xiii) the Borrower 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 7B.3; and".
4. Sub-clause (iii) of the fourth sentence of Section 2.1.3 of
the Credit Agreement is deleted and replaced in its entirety by the following:
"(iii) A full and complete copy of Borrower's internal
acquisition or capital expenditure model (in general form, content and
detail as utilized by the
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General Partner or its Affiliates for similar acquisitions or capital
expenditures prior to the Initial Closing Date), including, without
limitation, calculations demonstrating Borrower's continued compliance
with the financial ratios of Section 7B.1(i) and (ii) hereof as of and
following the closing of such proposed acquisition or capital
expenditure (utilizing, for the purpose of such demonstration, and
subject to the calculation of Consolidated EBITDA resulting from such
proposed Asset Acquisition, including adjustments permitted thereby,
the financial statements of the Borrower and of the acquired business
or asset for the most recent period of twelve consecutive months (as
opposed to the immediately preceding four full fiscal quarters) for
which such statements are available), and".
5. All of the remaining terms, provisions and conditions of the
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.
6. The effectiveness of paragraph 3 of this First Amendment is
conditioned on the consummation of an identical amendment to Section 6B(xii) of
the Note Purchase Agreement executed by the requisite percentage (Required
Holders) of Note purchasers as required thereby.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to Credit Agreement to be duly executed and delivered in Tulsa,
Oklahoma, effective as of the 28th day of June, 1996.
"Borrower"
HERITAGE OPERATING, L.P., a Delaware
limited partnership
By: Heritage Holdings, Inc.
a Delaware corporation,
general partner
By:
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H. Xxxxxxx Xxxxxxxx
Chief Financial Officer
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"Banks"
THE FIRST NATIONAL BANK OF BOSTON
By:
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H. Xxxxx Xxxxxx, Managing Director
BANK OF OKLAHOMA, NATIONAL
ASSOCIATION
By:
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Xxxxxx X. Xxxxxx, Vice President
"Administrative Agent"
THE FIRST NATIONAL BANK OF BOSTON
By:
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H. Xxxxx Xxxxxx, Managing Director
"Documentation Agent"
BANK OF OKLAHOMA, NATIONAL
ASSOCIATION
By:
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Xxxxxx X. Xxxxxx, Vice President
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