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EXHIBIT 10.3
THIRD AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
This THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment"), dated as of March 22, 2000, is entered into by and among AMERIGAS
PROPANE, L.P., a Delaware limited partnership (the "Company"), AMERIGAS PROPANE,
INC., a Pennsylvania corporation (the "General Partner"), PETROLANE
INCORPORATED, a Pennsylvania corporation ("Petrolane", the Company, the General
Partner and Petrolane are, collectively, the "Borrowers"), each of the financial
institutions that is a signatory to this Amendment (collectively, the "Banks"),
BANK OF AMERICA, N.A. (formerly Bank of America National Trust and Savings
Association), as agent for the Banks (in such capacity, the "Agent"), and amends
that certain Amended and Restated Credit Agreement (as the same is in effect
immediately prior to the effectiveness of this Amendment, the "Existing Credit
Agreement" and as the same may be amended, supplemented or modified and in
effect from time to time, the "Credit Agreement"), dated as of September 15,
1997, by and among the Company, the General Partner, Petrolane, the Agent, First
Union National Bank, as Syndication Agent and the Banks from time to time party
to the Credit Agreement, as amended by that certain First Amendment to Amended
and Restated Credit Agreement, dated as of September 15, 1998 (the "First
Amendment"), and as further amended by that certain Second Amendment to Amended
and Restated Credit Agreement, dated as of March 25, 1999 (the "Second
Amendment"). Capitalized terms used and not otherwise defined in this Amendment
shall have the same meanings in this Amendment as set forth in the Credit
Agreement, and the rules of interpretation set forth in Section 1.2 of the
Credit Agreement shall be applicable to this Amendment.
RECITALS
1. The Company has requested that the Banks amend the terms
"Average Consolidated Pro Forma Debt Service" and "Consolidated Pro Forma Debt
Service" under the Existing Credit Agreement, all as set forth below.
2. The Company proposes to issue certain First Mortgage Notes,
Series E, in aggregate principal amount not exceeding $80,000,000, pursuant 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 (the
"Series E First Mortgage Notes"). In connection with the issuance of the Series
E First Mortgage Notes, the Company has also requested that the Banks take
certain actions relating to such Series E First Mortgage Notes becoming Parity
Debt, as more particularly described below.
3. The Agent and the Banks are willing to agree to so amend the
Existing Credit Agreement and to make certain other agreements, in each case on
the terms and subject to the conditions set forth below.
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AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and agreements set forth below and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties agree as
follows:
SECTION 1. Amendments. On the terms of this Amendment and
subject to the satisfaction of all of the conditions precedent set forth below
in Section 2:
(a) The definition of "Average Consolidated Pro Forma Debt
Service" contained in Section 1.1 of the Existing Credit Agreement is hereby
amended and restated in its entirety to read as follows:
"Average Consolidated Pro Forma Debt Service" means 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 Capitalized Lease Liabilities,
(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 8.1(e) during the most recent four
consecutive calendar quarters.
(b) The definition of "Consolidated Pro Forma Debt Service"
contained in Section 1.1 of the Existing Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"Consolidated Pro Forma Debt Service" means 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 of any other
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Indebtedness (a) including actual payments of Capitalized Lease
Liabilities, (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 payment associated with the
Indebtedness incurred pursuant to Section 8.1(e) during the most
recent four consecutive calendar quarters.
(c) The definition of "Loan Documents" contained in Section
1.1 of the Existing Credit Agreement is hereby amended by adding the words "the
Third Amendment to Amended and Restated Credit Agreement, dated as of March 22,
2000, among the Borrowers, the Banks and the Agent," after the words "the Second
Amendment to Amended and Restated Credit Agreement, dated as of March 25, 1999,
among the Borrowers, the Banks and the Agent,".
SECTION 2. Conditions to Effectiveness of Section 1 Amendments.
The amendments set forth in Section 1 of this Amendment shall become effective
only upon the satisfaction of all of the following conditions precedent (the
date of satisfaction of all such conditions being referred to as the "Amendment
Effective Date"):
(a) On or before the Amendment Effective Date, the Agent
shall have received, on behalf of the Banks, this Amendment, duly executed and
delivered by the Company, the General Partner, Petrolane, each Restricted
Subsidiary, the Required Banks and the Agent.
(b) The Agent shall have received a certificate from a
Responsible Officer of the Company certifying that (1) all governmental actions
or filings necessary for the execution, delivery and performance of this
Amendment shall have been made, taken or obtained, and no order, statutory rule,
regulation, executive order, decree, judgment or injunction shall have been
enacted, entered, issued, promulgated or enforced by any court or other
governmental entity which prohibits or restricts the transactions contemplated
by this Amendment nor shall any action have been commenced or threatened seeking
any injunction or any restraining or other order to prohibit, restrain,
invalidate or set aside the transactions contemplated by this Amendment and (2)
each of the representations and warranties set forth in this Amendment is true
and correct as of the Amendment Effective Date.
SECTION 3. The Borrowers' Representations and Warranties. In
order to induce the Banks to enter into this Amendment and to amend the Existing
Credit Agreement in the manner provided in this Amendment, the Company, the
General Partner and Petrolane represent and warrant to each Bank as of the
Amendment Effective Date as follows:
(a) Power and Authority. The Company has all requisite
partnership power and authority to enter into this Amendment and to carry out
the transactions contemplated by, and perform its obligations under, the
Existing Credit Agreement as amended by this Amendment (hereafter referred to as
the "Amended Credit Agreement"). The General Partner has all requisite corporate
power and authority to enter into this Amendment in its individual capacity and
in its capacity as the sole general partner of the Company and to carry out the
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transactions contemplated by, and perform its obligations under, the Amended
Credit Agreement. Petrolane has all requisite corporate power and authority to
enter into this Amendment and to carry out the transactions contemplated by, and
perform its obligations under, the Amended Credit Agreement. Each Restricted
Subsidiary has all requisite corporate power and authority to enter into this
Amendment and to carry out the transactions contemplated by, and perform its
obligations, under the Security Documents.
(b) Authorization of Agreements. The execution and delivery
of this Amendment by the Company, the General Partner, Petrolane and each
Restricted Subsidiary and the performance of the Amended Credit Agreement by the
Company, the General Partner and Petrolane have been duly authorized by all
necessary action, and this Amendment has been duly executed and delivered by the
Company, the General Partner, Petrolane and each Restricted Subsidiary.
(c) Enforceability. The Amended Credit Agreement constitutes
the legal, valid and binding obligation of the Company, the General Partner and
Petrolane enforceable against the Company, the General Partner and Petrolane in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium or similar laws affecting creditors' rights
generally.
(d) No Conflict. The execution, delivery and performance by
each of the Company, the General Partner, Petrolane and the Restricted
Subsidiaries of this Amendment, and the performance by each of the Company, the
General Partner, Petrolane and the Restricted Subsidiaries of the Amended Credit
Agreement do not and will not (i) violate (x) any provision of the Partnership
Agreement or the certificate or articles of incorporation or other Organization
Documents of the Company, the General Partner, Petrolane or any of their
respective Subsidiaries, (y) 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 (z) any provision of any
agreement or instrument to which the Company, the General Partner, Petrolane or
any of their respective Subsidiaries is a party or by which any of its
properties is bound, except (in the case of clauses (y) and (z) above) for such
violations which would not, individually or in the aggregate, present a
reasonable likelihood of having a Material Adverse Effect, or (ii) result in the
creation of (or impose any express obligation on the part of the Borrowers to
create) any Lien not permitted by Section 8.3 of the Credit Agreement.
(e) Governmental Consents. Except for Routine Permits, (i)
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 Amendment by the Company, the General Partner, Petrolane and
the Restricted Subsidiaries.
(f) Representations and Warranties in the Credit Agreement.
The Company, General Partner and Petrolane confirm that as of the Amendment
Effective Date, (i) the representations and warranties contained in Article VI
of the Credit Agreement are (before and after giving effect to this Amendment)
true and correct in all material respects (except to the extent such
representations and warranties expressly relate to an earlier time or date, in
which case they shall have been true and correct in all material respects as of
such earlier time or date)
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with the same effect as if made on and as of the Amendment Effective Date and
(ii) that no Default or Event of Default has occurred and is continuing.
(g) Liens. As of the Amendment Effective Date, there are no
Liens on the General Collateral other than Liens permitted under Section 8.3 of
the Credit Agreement.
(h) Subsidiaries. As of the Amendment Effective Date, the
Company has no Restricted Subsidiaries other than AmeriGas Propane Parts &
Service, Inc.
SECTION 4. Affirmative Covenants. (a) The Company hereby agrees
to obtain and deliver to the Agent, as promptly as practicable, but in any event
within 90 days after the date of issuance of the Series E First Mortgage Notes,
(i) title endorsements or their equivalents, in form and substance reasonably
satisfactory to the Collateral Agent, with respect to the title insurance
policies issued in connection with the Mortgages listed on Schedule I hereto,
(ii) amendments to the Mortgages that were amended in connection with the
issuance by the Company of the Series D First Mortgage Notes, in form and
substance reasonably satisfactory to the Collateral Agent, and (iii) an opinion
of Morgan, Lewis & Bockius LLP, special counsel for the Obligors, in
substantially the form of Exhibit A hereto.
(b) Resolutions. Concurrently with the issuance by the
Company of the Series E First Mortgage Notes, the Company will deliver to the
Agent copies of partnership authorizations for the Company and resolutions of
the board of directors of each of the General Partner, Petrolane and the
Restricted Subsidiaries authorizing and ratifying the transactions contemplated
hereby, certified by the Secretary or an Assistant Secretary of such Person.
SECTION 5. Direction Notices.
(a) Each of the Banks which executes this Amendment, by its
execution of this Amendment, confirms that it has received and reviewed each of
the documents identified on Schedule II hereto, which documents have been
distributed by the Borrowers to satisfy the requirements set forth in Section
6(a)(ii) of the Collateral Agency Agreement.
(b) Each of the Banks which executes this Amendment, by its
execution of this Amendment, hereby (1) agrees that, upon the satisfaction of
the conditions set forth below, the conditions to the Borrowers' designation of
the Series E First Mortgage Notes as Parity Debt set forth in Section 6(a) of
the Collateral Agency Agreement (assuming the accuracy of the representations
and warranties made by the Borrowers 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 First Mortgage Notes (the
"Series E Note Agreement"):
(i) The Collateral Agent shall have received a
supplement (the "Supplement") to the Collateral Agency Agreement in the form of
Exhibit A to the Collateral Agency 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
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thereto other than minor, nonmaterial changes necessary to identify the Series E
First Mortgage Notes transaction.
(ii) The Collateral Agent shall have received an
Officer's Certificate (as defined in the Collateral Agency 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 Agreement 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 Collateral Agency 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 Collateral Agency Agreement) and (B) the
incurrence of the Series E First Mortgage 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
8.1(a), 8.1(b), 8.1(e) or 8.1(f) of the Credit Agreement.
(iii) The Collateral Agent shall have received an
Officer's Certificate of the Borrowers 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 First Mortgage Notes as
Obligations (as defined in the Collateral Agency Agreement) shall have been
paid.
(iv) The Collateral Agent shall have received an
Officer's Certificate of the Borrowers to the effect that no General Event of
Default shall have occurred and be continuing as of the date of the Supplement.
SECTION 6. Miscellaneous.
(a) Reference to and Effect on the Existing Credit Agreement
and the Other Loan Documents.
(i) Except as specifically amended by this Amendment
and the documents executed and delivered in connection herewith, the Existing
Credit Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed. This Amendment shall be a "Loan
Document" under the Credit Agreement.
(ii) The execution and delivery of this Amendment and
performance of the Amended Credit Agreement shall not, except as expressly
provided herein, constitute a waiver of any provision of, or operate as a waiver
of any right, power or remedy of the Banks under, the Existing Credit Agreement
or any other Loan Document.
(iii) Upon the conditions precedent set forth herein
being satisfied, this Amendment shall be construed as one with the Existing
Credit Agreement, and the Existing Credit Agreement shall, where the context
requires, be read and construed throughout so as to incorporate this Amendment.
(b) Fees and Expenses. The Company, the General Partner and
Petrolane acknowledge that all reasonable costs, fees and expenses incurred in
connection with this Amendment will be paid in accordance with Section 11.4 of
the Existing Credit Agreement.
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(c) Headings. Section and subsection headings in this
Amendment are included for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose or be given any
substantive effect.
(d) Counterparts. This Amendment may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(e) Governing Law. This Amendment shall be governed by and
construed according to the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the date first above written.
AMERIGAS PROPANE, L.P., a Delaware
limited partnership
By: AMERIGAS PROPANE, INC.
Its: General Partner
By: /s/ Robert W. Krick
------------------------------------
Name: Robert W. Krick
----------------------------------
Title: Treasurer
---------------------------------
AMERIGAS PROPANE, INC.
By: /s/ Robert W. Krick
------------------------------------
Name: Robert W. Krick
----------------------------------
Title: Treasurer
---------------------------------
PETROLANE INCORPORATED
By: /s/ Robert W. Krick
------------------------------------
Name: Robert W. Krick
----------------------------------
Title: Treasurer
---------------------------------
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AGENT
BANK OF AMERICA, N.A., as Agent
By: /s/ David Price
------------------------------------
Name: David Price
----------------------------------
Title: Vice President
---------------------------------
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BANKS
BANK OF AMERICA, N.A., as a Bank and an
Issuing Bank
By: /s/ Daryl G. Patterson
------------------------------------
Name: Daryl G. Patterson
----------------------------------
Title: Managing Director
---------------------------------
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FIRST UNION NATIONAL BANK, as a Bank
and as Syndication Agent
By: /s/ Joe K. Dancy
------------------------------------
Name: Joe K. Dancy
----------------------------------
Title: Vice President
---------------------------------
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THE BANK OF NEW YORK
By: /s/ Walter C. Parelli
--------------------------------------
Name: Walter C. Parelli
------------------------------------
Title: Vice President
-----------------------------------
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MELLON BANK, N.A.
By: /s/ Donald G. Cassidy, Jr.
--------------------------------------
Name: Donald G. Cassidy, Jr.
------------------------------------
Title: First Vice President
-----------------------------------
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ALLFIRST BANK (formerly The First National
Bank of Maryland)
By: /s/ Jennifer L. Uricheck
--------------------------------------
Name: Jennifer L. Uricheck
------------------------------------
Title: Corporate Banking Officer
-----------------------------------
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FLEET NATIONAL BANK
By: /s/ Timothy J. Norton
--------------------------------------
Name: Timothy J. Norton
------------------------------------
Title: Director
-----------------------------------
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PNC BANK, NATIONAL ASSOCIATION
By: /s/ Eric G. Erickson
--------------------------------------
Name: Eric G. Erickson
------------------------------------
Title: Vice President
-----------------------------------
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UNION BANK OF CALIFORNIA, N.A.
By: /s/ Dustin Gaspari
--------------------------------------
Name: Dustin Gaspari
------------------------------------
Title: Assistant Vice President
-----------------------------------
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The undersigned hereby acknowledges and consents to the foregoing Third
Amendment to Amended and Restated Credit Agreement, reaffirms the terms of its
Restricted Subsidiary Guarantee in favor of Bank of America, N.A., as Collateral
Agent and acknowledges that such Restricted Subsidiary Guarantee remains in full
force and effect in accordance with its terms.
Dated: March 24, 2000 AMERIGAS PROPANE PARTS & SERVICE,
--------------------------- INC., as Guarantor
By: /s/ Robert W. Krick
---------------------------------
Name: Robert W. Krick
-------------------------------
Title: Treasurer
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SCHEDULE I
AMENDED TITLE POLICY
ADDRESS MORTGAGE ENDORSEMENT
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Osyart Road, Bumstead, Recorded 3/27/98 Policy #137-00-003-314
Maricopa County, AZ* Instrument #98-0241615 Dated 3/27/98
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2110 N. Gaffey Street, San Pedro, Policy #137-00-005-303
Los Angeles County, CA* N/A Dated 9/15/97
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2675 N. Temple Avenue, Signal Hill, Policy #135-00-538-760
Los Angeles County, CA N/A Dated 9/15/97
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16800 South Main Street, Carson, Policy #135-00-538-761
Los Angeles County, CA N/A Dated 9/15/97
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9608 Cherry Avenue, Fontana, Policy #82-03-134-439
San Bernardino County, CA N/A Dated 9/15/97
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295 E. Virginia Street, San Jose, Policy #135-00-525-911
Santa Clara County, CA N/A Dated 9/15/97
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232 Mt. Hermon Road, Scotts Valley, Policy #112-00-398-650
Santa Cruz County, CA N/A Dated 9/15/97
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52 Lower Bartlett Road, Waterford, Recorded 9/29/97 Policy #112-00-689253
New London County, CT Vol. 0473 Page 0132 Dated 9/29/97
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10052 N.W. 89th Avenue, Medley, Recorded 10/2/97 Policy #82-02-875613
Miami - Dade County, FL 17814 Page 0674 Dated 5/11/98
Instrument #97R448821
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1830 East 3rd Street, Panama City, Recorded 10/23/97 Policy #82-01-853324
Bay County, FL* Book 1744 Page 1765
File #97049929
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2715 Woodwin Road, Doraville, Recorded 9/29/97 Policy #112-00-273266
DeKalb County, GA Book 9634 Page 143 Dated 11/25/97
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Lot 2999, Honolulu, N/A Policy #T107-42270
Honolulu County, HI Dated 9/15/97
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Lot 53 of "THE MILLYARD N/A File No. 220408
SUBDIVISION", Halieu (Maui), Dated 9/15/97
Maui County, HI
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Cook County, IL Dated 6/21/95
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3801 South Cicero Avenue, Cicero, N/A Policy #112-00-737438
Cook County, IL Dated 6/21/95
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2801 East 175th Street, Lansing, N/A Policy #112-00-737439
Cook County, IL Dated 6/21/95
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522 South Vermont Street, Palatine, N/A Policy #112-00-737440
Cook County, IL Dated 6/21/95
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6300 Cliffdale Road, Fayetteville, N/A Policy 112-00-838604
Cumberland County, NC Dated 9/25/97
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*Leasehold mortgage
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SCHEDULE I
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Route 206, Bordentown, Recorded 10/1/97 Policy #112-02-239349
Burlington County, NJ MB6976 Page 273 Dated 10/1/97
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Route 24, Chester, Recorded 10/1/97 Policy #112-02-239350
Morris County, NJ MB7212 Page 47 Dated 5/5/98
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*Leasehold mortgage
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SCHEDULE II
DOCUMENTS RELATING TO THE SERIES E FIRST MORTGAGE NOTES
1. A copy of the proposed Note Agreement in respect of the Series E First
Mortgages Notes.
2. Evidence that the incurrence of the indebtedness evidenced by the Series
E First Mortgage Notes complies with Section 8.1(f) of the Credit
Agreement as of the issuance date of such Series E First Mortgage Notes.
3. A copy of the offering memorandum with respect to the Series E First
Mortgage Notes.
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EXHIBIT A
FORM OF OPINION OF COUNSEL TO BORROWERS
See attached.
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______________________, 2000
Bank of America, N.A.,
as collateral agent under the Note Agreement and
Credit Agreement referred to herein
1445 Market Street
12th Floor
San Francisco, California 94103
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 4(a)(iii) of that
certain Third Amendment to Amended and Restated Credit Agreement, dated as of
March 22, 2000 (the "Third Amendment to Credit Agreement"), by and among
AmeriGas Propane, L.P., a Delaware limited partnership (the "Company"), AmeriGas
Propane, Inc., a Pennsylvania corporation (the "General Partner"), Petrolane
Incorporated, a Pennsylvania corporation ("Petrolane"), each of the financial
institutions that is a signatory thereto and Bank of America, N.A., as agent
(the "Agent"). Except as otherwise defined herein, terms defined in the Third
Amendment to Credit Agreement and in the Credit Agreement amended thereby are
used herein as therein defined.
We have acted as special counsel for the Company, the General Partner
and Petrolane (collectively, the "Obligors") in connection with the Third
Amendment to Credit Agreement and the Florida Mortgage Amendments (as
hereinafter defined).
In that connection, we have examined the following documents:
1. the Third Amendment to Credit Agreement;
2. twenty-eight (28) instruments entitled "Third Amendment of
Mortgage, Assignment of Leases and Rents, Security Agreement,
Financing Statement and Fixture Filing" dated as of March 22,
2000 made between the Company (doing business in Florida as
AmeriGas Propane, Limited Partnership), as mortgagor, and the
Agent, as mortgagee (the "Florida Third Mortgage Amendments"),
each of which amends one of the 1995 Florida Mortgages (as
defined below); and
3. that certain "First Amendment of Mortgage, Assignment of Leases
and Rents, Security Agreement, Financing Statement and Fixture
Filing" dated as of March 22, 2000 made between the Company
(doing business in Florida as AmeriGas Propane, Limited
Partnership), as mortgagor, and the Agent, as mortgagee (the
"Charlotte
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Bank of America, N.A.
____________________, 2000
Page 2
County Mortgage Amendment"), which amends the Charlotte County
Mortgage (as defined below).
As used herein, the following terms have the following meanings:
(a) "1995 Florida Mortgages" means the collective reference to the
twenty-eight (28) instruments entitled "Mortgage, Assignment of
Leases and Rents, Security Agreement, Financing Statement and
Fixture Filing" made by the Company (doing business in Florida
as AmeriGas Propane, Limited Partnership"), as mortgagor, to the
Agent, as mortgagee, and recorded in various counties in the
State of Florida on various dates in 1995, as amended by
instruments entitled "First Amendment of Mortgage, Assignment of
Leases and Rents, Security Agreement, Financing Statement and
Fixture Filing" dated as of September 22, 1997 made between the
Company, as mortgagor, and the Agent, as mortgagee, and as
further amended by instruments entitled "Second Amendment of
Mortgage, Assignment of Leases and Rents, Security Agreement,
Financing Statement and Fixture Filing" dated as of March 25,
1999 made between the Company, as mortgagor, and the Agent, as
mortgagee, some of which have been further amended by
instruments entitled "Corrective Amendment of Mortgage,
Assignment of Leases and Rents, Security Agreement, Financing
Statement and Fixture Filing" dated as of October 1, 1999 made
between the Company, as mortgagor, and the Agent, as mortgagee,
excluding, however, those mortgage instruments recorded in Bay
and Leon and Volusia Counties, Florida which have been released
by the Agent.
(b) "2000 Florida Mortgage Amendments" means the collective
reference to the Florida Third Mortgage Amendments and the
Charlotte County Mortgage Amendment.
(c) "Charlotte County Mortgage" means that certain Mortgage,
Assignment of Leases and Rents, Security Agreement, Financing
Statement and Fixture Filing dated as of March 24, 1999 made by
the Company (doing business in Florida as AmeriGas Propane,
Limited Partnership), as mortgagor, to the Agent, as mortgagee,
encumbering certain real property described therein located in
Charlotte County, Florida.
(d) "Florida Mortgages" means the collective reference to the 1995
Florida Mortgages and the Charlotte County Mortgage.
(e) "Obligations" means the term "Obligations" as defined in the
Florida Mortgages.
We have also examined the originals, or copies certified or otherwise
identified to our satisfaction, of such records of the Obligors, certificates of
public officials and certificates of officers of the Obligors (copies of which
have been provided or made available to you), and agreements, instruments and
other documents, as we have deemed necessary as a basis for the opinions
expressed below. As to questions of fact material to such opinions, we have
relied upon
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Bank of America, N.A.
____________________, 2000
Page 3
the representations and warranties of, and other factual information provided
by, the Obligors and contained in the certificates referred to above and the
Third Amendment to Credit Agreement.
We have assumed that the constitutionality or validity of a relevant
statute, rule, regulation or agency action is not in issue unless a reported
decision in the State of Florida has specifically addressed but not resolved, or
has established its unconstitutionality or invalidity.
Based upon the foregoing, and subject to the qualifications and
limitations contained herein, it is our opinion that as of the date hereof:
1. The amount of Florida documentary stamp tax payable as a result
of the issuance of the Series E First Mortgage Notes and the execution and
recording of the 2000 Florida Mortgage Amendments is not more than an amount for
each 2000 Florida Mortgage Amendment equal to 35 cents for each $100 or portion
thereof of the Series E Maximum Secured Principal Amount as defined in and as
set forth in such 2000 Florida Mortgage Amendment.
For purposes of our opinion set forth in paragraph 1 above, we have
assumed that (i) all Florida documentary stamp taxes due and payable on the
Florida Mortgages prior to amendment by the 2000 Florida Mortgage Amendments
were paid upon recording of the Florida Mortgages, (ii) no Series E First
Mortgage Notes nor any other document creating, evidencing, extending, renewing
or modifying the Obligations evidenced by the Series E First Mortgage Notes or
any of the other Obligations (including, without limitation, the Credit
Agreement and amendments to the Credit Agreement) has been or will be made,
executed, delivered, transferred or assigned in the State of Florida by any
party other than the Obligors, (iii) except for the 2000 Florida Mortgage
Amendments, the Florida Mortgages and any Uniform Commercial Code financing
statements, no mortgages, security agreements, trust deeds or other evidence of
the Series E First Mortgage Notes or any of the other Obligations nor any
renewal thereof (including, without limitation, any amendments(s) to the Florida
Mortgages not expressly included within the definition of 1995 Florida Mortgages
set forth in this opinion) has been or will be filed or recorded in the State of
Florida by any party other than the Obligors, (iv) the statement set forth in
each 2000 Florida Mortgage Amendment concerning the current unpaid principal
balance of the Obligations secured by the corresponding Florida Mortgage was
true as of the dates of the execution and recording of such 2000 Florida
Mortgage Amendments and (v) none of the Series E First Mortgage Notes nor any
other document (including, without limitation, the Credit Agreement and any
amendment thereto) evidencing, creating, extending, renewing or modifying the
Obligations evidenced by the Series E First Mortgage Notes or any of the other
Obligations has been or is hereafter executed by any person or entity (excluding
the payees or other beneficiaries thereof) other than those persons and entities
who were obligated to pay the Obligations at the time that the Florida Mortgages
were originally recorded.
Our opinion in paragraph 1 above is also subject to the qualification
that we have excluded the Obligors from the assumptions made in clauses (ii) and
(iii) above based solely on a certificate of the Obligors with respect to such
matters.
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Page 4
2. The amount of Florida nonrecurring intangible personal property
tax payable as a result of the issuance of the Series E First Mortgage Notes and
the execution and recording of the 2000 Florida Mortgage Amendments is not more
than an amount for each 2000 Florida Mortgage Amendment equal to 2 mills (0.2%)
of the Series E Maximum Secured Principal Amount as defined in and as set forth
in such 2000 Florida Mortgage Amendment.
For purposes of our opinion set forth in paragraph 2 above, we have
assumed that (i) all Florida nonrecurring intangible personal property taxes due
and payable on the Florida Mortgages prior to amendment by the 2000 Florida
Mortgage Amendments were paid upon recording of the Florida Mortgages, (ii) none
of the Series E First Mortgage Notes nor any of the other Obligations are
secured by any mortgage, deed of trust or other lien upon real property located
in the State of Florida executed by any party other than the Obligors nor has
any agreement or contract for deed or written agreement not to encumber or
convey real property located in the State of Florida been executed by any party
other than the Obligors in connection with the Obligations, except for the 2000
Florida Mortgage Amendments and the Florida Mortgages, (iii) the statement set
forth in each 2000 Florida Mortgage Amendment concerning the current unpaid
principal balance of the Obligations secured by the corresponding Florida
Mortgage was true as of the dates of the execution and recording of such 2000
Florida Mortgage Amendment and (iv) none of the Series E First Mortgage Notes
nor any other document (including, without limitation, the Credit Agreement and
any amendment thereto) evidencing, creating, extending, renewing or modifying
the Obligations evidenced by the Series E First Mortgage Notes or any of the
other Obligations has been or is hereafter executed by any person or entity
(excluding the payees or other beneficiaries thereof) other than those persons
and entities who were obligated to pay the Obligations at the time that the
Florida Mortgages were originally recorded.
Our opinion in paragraph 2 above is also subject to the qualification
that we have excluded the Obligors from the assumptions made in clause (ii)
above based solely on a certificate of the Obligors with respect to such
matters.
Except as expressly set forth herein, no opinion is expressed as to any
other aspect of Florida documentary stamp or intangible personal property taxes,
including, without limitation, the applicability or amount of Florida
documentary stamp or intangible personal property taxes due on any prior or
other future advances of the Obligations.
Without limiting the generality of the foregoing, we have made no
examination of public records whatsoever.
To the extent that any of the Obligations may be dependent upon such
matters, we assume for purposes of this opinion that each Person (other than the
Obligors) who is a party to any of the documents creating, evidencing,
extending, renewing or modifying the Obligations is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization; that each of such agreements has been duly authorized, executed
and delivered by
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Page 5
each Person (other than the Obligors) party thereto and constitutes or will
constitute the legal, valid and binding obligation of each such Person (other
than the Obligors) in accordance with their respective terms against such
Person, and that each such Person (other than the Obligors) has the requisite
corporate or other organizational power and authority to perform its obligations
under such agreements.
This opinion is limited to the laws of the State of Florida. We express
no opinion as to the laws of any other jurisdiction.
This opinion relates only to the matters expressly addressed above, is
applicable only as of the date hereof, and we express no opinion with respect to
any other matters. We acknowledge that we have been instructed by the Company to
deliver this opinion to you in connection with the transactions contemplated by
the Third Amendment to Credit Agreement. This opinion is rendered only to you in
your capacity as collateral agent and is solely for your benefit, the benefit of
the purchasers of the Series E First Mortgage Notes (the "Purchasers") and the
benefit of the other holders of the Obligations in connection with the
transactions governed by the Third Amendment to Credit Agreement and the Note
Agreement referred to therein, may not be relied upon by you or the Purchasers
or such holders for any other purpose, and may not be relied upon by any other
Person or entity other than permitted assignees of any Purchaser or of any such
holder for any purpose without our prior written consent.
Very truly yours,
Prepared by:
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Robert W. Murray
Reviewed by:
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Signed by :
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