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EXHIBIT 10.1
FIRST AMENDMENT dated as of March 16, 2000 (the "First Amendment") to
the NOTE AGREEMENT dated as of March 15, 1999 (the "Agreement") by and among
AMERIGAS PROPANE, L.P., a Delaware limited partnership (the "Company"), AMERIGAS
PROPANE, INC., a Pennsylvania corporation formerly known as New AmeriGas
Propane, Inc. (the "General Partner"; the Company and the General Partner being
hereinafter collectively referred to as the "Obligors"), and each of the
noteholders listed in Schedule I to the Agreement as amended hereby (the
"Holders").
WHEREAS, the parties hereto desire to amend the Agreement as set forth
below;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows.
1. Amendments to the Agreement. Effective as of the Effective Date
(as hereinafter defined), the Agreement is hereby amended as follows:
1.1 The definition of "Average Consolidated Pro Forma Debt Service"
contained in Section 13.1 is hereby amended and restated in its entirety to read
as follows:
"Average Consolidated Pro Forma Debt Service": as of any date of
determination, the average amount payable by the Company and the Restricted
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 June 30, 2010, in respect of scheduled interest
(but not principal) payments with respect to all Indebtedness of the Company and
the Restricted 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 of Capital 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, and (c) including only actual interest payments
associated with the Indebtedness incurred pursuant to Section 10.1(e) during
the most recent four consecutive calendar quarters.
1.2 The definition of "Consolidated Pro Forma Debt Service"
contained in Section 13.1 is hereby amended and restated in its entirety to read
as follows:
"Consolidated Pro Forma Debt Service": as of any date of determination,
the total amount payable by the Company and the Restricted Subsidiaries on a
consolidated basis during the four consecutive calendar quarters next succeeding
the date of determination, in respect of scheduled interest (but not principal)
payments with respect to Indebtedness of the Company and the Restricted
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
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of any other Indebtedness (a) including actual payments of Capital 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 and (c) including only actual
interest payments associated with the Indebtedness incurred pursuant to Section
10.1(e) during the most recent four consecutive calendar quarters.
2. Conditions to Effectiveness of this First Amendment. This First
Amendment shall become effective only upon the satisfaction in full (or waiver
by the Required Holders) of the following conditions precedent (the first date
upon which each such condition shall have been so satisfied or waived being
herein referred to as the "Effective Date"):
(1) No Defaults. On the Effective Date (after giving effect to this
First Amendment), no Default or Event of Default shall have occurred and be
continuing.
(2) First Amendment. Each of the Obligors and the Required Holders
shall have executed this First Amendment, and counterparts hereof bearing the
signatures of the Obligors shall have been delivered to the Holders together
with a notice from the Company to each Holder as to the satisfaction of this
condition.
(3) Fee. The Company shall have paid to each Holder a fee equal to
the product of (a) 0.00075 and (b) the outstanding principal amount of the Notes
(as defined in the Agreement) held by such Holder on March 27, 2000.
3. Direction Notices.
(1) Each of the Holders which executes this First Amendment, by its
execution of this First Amendment, confirms that it has received each of the
documents identified on Schedule A hereto, which documents have been distributed
by the Obligors to satisfy the requirement to distribute a copy of the proposed
New Parity Debt Agreements and to deliver evidence that the incurrence of the
Indebtedness evidenced by the notes (the "Series E Notes") issued in an
aggregate principal amount not exceeding $80,000,000 pursuant to the Series E
Note Agreement (as defined below) complies with Section 10.1(f) of the Agreement
as of the issuance date as set forth in Section 6(a)(ii) of the Intercreditor
Agreement.
(2) Each of the Holders which executes this First Amendment, by its
execution of this First Amendment, hereby (1) agrees that, upon the satisfaction
of the conditions set forth below, the conditions to the Obligors' designation
of the Series E Notes as Parity Debt set forth in Section 6(a) of the
Intercreditor Agreement (assuming the accuracy of the representations and
warranties made by the Obligors therein) will have been satisfied and (2)
thereupon authorizes and directs the Collateral Agent to confirm in writing to
the New Parity Lenders or the New Parity Agent, if any (as such terms are
defined in the Supplement), that the conditions set forth in Section 6(a) have
been satisfied with respect to that certain Note Agreement, to be dated as of
March 15, 2000, among the Company, the General Partner and the purchasers named
in Schedule I thereto, relating to the Series E Notes (the "Series E Note
Agreement"), such Series E Note Agreement to be in the form delivered to the
Holders pursuant
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to Section 3(a) above, with no material modifications thereof (provided that the
completion of certain currently blank provisions shall not constitute a material
modification):
(1) The Collateral Agent shall have received a supplement (the
"Supplement") to the Intercreditor Agreement in the form of Exhibit A to the
Intercreditor Agreement, executed and delivered by the Obligors, the New Parity
Lenders and the New Parity Agent, if any (as each such term is defined in the
Supplement), with no modifications thereto other than minor, nonmaterial changes
necessary to identify the Series E Notes transaction.
(2) The Collateral Agent shall have received an Officer's
Certificate (as defined in the Intercreditor Agreement, an "Officer's
Certificate") of the Borrowers to the effect that (A) Sections 9.3(b) and
10.7(c) of the Series E Note Agreements are substantially identical to
(including without limitation with respect to amounts to be prepaid), and not in
conflict or inconsistent with (1) Section 9.3(b) of the Note Agreements and
Section 2.7(c) of the Credit Agreement with respect to Excess Taking Proceeds
(as defined in the Intercreditor Agreement) or (2) Section 10.7(c) of the Note
Agreements and Section 8.8(c) of the Credit Agreement with respect to Excess
Sale Proceeds (as defined in the Intercreditor Agreement) and (B) the incurrence
of the Series E Notes complies with the terms of Section 10.1(a), 10.1(b),
10.1(e) or 10.1(f) of the Note Agreements and Section 8.l(a), 8.l(b), 8.l(e) or
8.1(f) of the Credit Agreement.
(3) The Collateral Agent shall have received an Officer's
Certificate of the Obligors to the effect that all state and local stamp,
recording, filing, intangible and similar taxes or fees which are payable in
connection with the inclusion of the Series E Notes as Obligations (as defined
in the Intercreditor Agreement) shall have been paid.
(4) The Collateral Agent shall have received an Officer's
Certificate of the Obligors to the effect that no General Event of Default shall
have occurred and be continuing as of the date of the Supplement and as of the
Parity Effective Date.
(5) The Company shall have delivered to each of the Holders an
amendment to Section 1 of the Credit Agreement providing for substantially the
same definitions of "Average Consolidated Pro Forma Debt Service" and
"Consolidated Pro Forma Debt Service" as are set forth in Section 13 of the
Agreement after giving effect to this First Amendment.
(6) The Collateral Agent and the Obligors shall have received
counterpart execution copies of a Direction Notice executed and delivered by the
Requisite Percentage, as required under the Intercreditor Agreement.
4. Agreement; Terms. Except as expressly amended hereby, the
Agreement shall continue in full force and effect in accordance with the
provisions thereof on the date hereof, and this First Amendment shall not be
deemed to waive or amend any provision of the Agreement or the Intercreditor
Agreement except as expressly set forth herein. As used in the Agreement, the
terms "this Agreement," "herein," "hereinafter," "hereunder," "hereto" and words
of similar import shall mean and refer to, from and after the Effective Date,
unless the context otherwise specifically requires, the Agreement as amended by
this First Amendment.
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Capitalized terms used and not defined herein shall have the meanings assigned
to such terms in the Agreement or, in the case of Section 3 above, the
Intercreditor Agreement.
5. Headings. Section headings in this First Amendment are included
herein for convenience of reference only and shall not define, limit or
otherwise affect any of the terms or provisions hereof.
6. Counterparts. This First Amendment may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument, and all signatures need not appear on
any one counterpart. Any party hereto may execute and deliver a counterpart of
this First Amendment by delivering by facsimile transmission a signature page of
this First Amendment signed by such party, and such facsimile signature shall be
treated in all respects as having the same effect as an original signature.
7. Expenses. The Company agrees to pay all reasonable out-of-pocket
expenses incurred by the Holders in connection with the preparation of this
First Amendment, including, but not limited to, the reasonable fees, charges and
disbursements of one outside special counsel for the Holders as provided for in
Section 16.1 of the Agreement.
8. Governing Law. This First Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York (other than any
conflicts of law rule which might result in the application of the laws of any
other jurisdiction).
9. Ratification and Confirmation of Security Documents. The Company
hereby ratifies and confirms the provisions of the Security Documents for the
benefit from time to time of the holders of the Notes.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be executed as of the date first above written.
AMERIGAS PROPANE, L.P.
By: AmeriGas Propane, Inc.,
its General Partner
By: /s/ Martha B. Lindsay
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Martha B. Lindsay
Vice President - Finance and Chief Financial Officer
AMERIGAS PROPANE, INC.
By: /s/ Martha B. Lindsay
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Martha B. Lindsay
Vice President - Finance and Chief Financial Officer
[Remainder of this page intentionally left blank]
[SIGNATURE PAGE TO FIRST AMENDMENT TO 1999 NOTE AGREEMENT]
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NIMER & CO. (registered holder of Note #D-1
(beneficially owned by Aid Association for Lutherans))
By: /s/ Reginald L. Pfeifer
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Name: Reginald L. Pfeifer
Title: Vice President
MUTUAL SERVICE LIFE INSURANCE COMPANY
(registered holder of Note #D-3)
By: /s/ Ronald L. Kaliebe
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Name: Ronald L. Kaliebe
Title: Vice President, Chief Investment Officer
JEFFERSON PILOT FINANCIAL INSURANCE
COMPANY (registered holder of Note #D-6)
By: /s/ Robert H. Whalen, II
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Name: Robert E. Whalen, II
Title: Vice President
ALEXANDER HAMILTON LIFE INSURANCE COMPANY OF
AMERICA (registered holder of Note #D-7)
By: /s/ Robert E. Whalen, II
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Name: Robert E. Whalen, II
Title: Vice President
PACIFIC LIFE INSURANCE COMPANY (nominee name:
MAC & CO, registered holder of Notes #D-11 and
D-12)
By: /s/ Ronn Cornelius
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Name: Ronn Cornelius
Title: Acting Vice President
By: /s/ Diane W. Dales
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Name: Diane W. Dales
Title: Assistant Secretary
[SIGNATURE PAGE TO FIRST AMENDMENT TO 1999 NOTE AGREEMENT]
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The undersigned hereby confirms its continued guaranty of the obligations
of the Company and the General Partner under the Note Agreement, as amended
hereby, on this 30th day of March, 2000.
AMERIGAS PROPANE PARTS & SERVICES, INC.
/s/ Martha Lindsay
By Martha Lindsay
Its Vice President-Finance
[Signature Page to First Amendment to Note Agreement]
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Schedule A
1. A copy of the proposed Note Agreement in respect of the Series E Notes;
2. Evidence that the incurrence of the Indebtedness evidenced by the Series
E Notes complies with Section 10.1(f) of the Agreement as of the
issuance date; and
3. A copy of the Summary of Terms of the Series E Notes as set forth in the
Offering Memorandum in respect thereof.