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EXHIBIT 10.4
FOURTH AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
This FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment"), dated as of June 6, 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 (a) that certain First Amendment to
Amended and Restated Credit Agreement, dated as of September 15, 1998 (the
"First Amendment"), (b) that certain Second Amendment to Amended and Restated
Credit Agreement, dated as of March 25, 1999 (the "Second Amendment") and (c)
that certain Third Amendment to Amended and Restated Credit Agreement, dated as
of March 22, 2000 (the "Third 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 extend the commitment
period for and adjust the maturity of the Acquisition Loans under the Existing
Credit Agreement and make certain related changes, all as set forth below.
2. 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.
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:
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(a) Section 1.1 of the Existing Credit Agreement is hereby
amended by the addition of the following definition in such Section 1.1 in
appropriate alphabetical order:
"New Acquisition Loan Termination Date" means the
earlier to occur of:
(a) September 15, 2002; and
(b) the date on which the Acquisition Commitments
terminate in accordance with the provisions of this Agreement.
(b) Section 1.1 of the Existing Credit Agreement is hereby
amended by replacing the pricing grid set forth in the definition of "Applicable
Margin" in such Section 1.1 with the following pricing grid:
Pricing Tier Funded Debt Ratio Margin
------------ ----------------- ------
I <1.75x 0.5000%
II =>1.75 x but <2.75x 0.7500%
III =>2.75 x but <3.25x 1.0000%
IV =>3.25 x but <3.75x 1.2500%
V =>3.75x but <4.25x 1.3750%
VI =>4.25x but <4.75 1.5000%
VII =>4.75 1.7500%
(c) Section 1.1 of the Existing Credit Agreement is hereby
amended by replacing the definition of "Maturity Date" in such Section 1.1 with
the following:
"Maturity Date" means the Revolving Termination Date
in respect of the Revolving Loans, and the New Acquisition
Loan Termination Date in respect of the Acquisition Loans.
(d) Sections 2.1(a) [The Acquisition Credit] and 2.10(b)
[Facility Fees] of the Existing Credit Agreement are hereby amended by replacing
the reference to the term "Acquisition Loan Termination Date" in each such
Section with the term "New Acquisition Loan Termination Date."
(e) The definition of "Loan Documents" contained in Section
1.1 of the Existing Credit Agreement is hereby amended by adding the words "the
Fourth Amendment to
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Amended and Restated Credit Agreement, dated as of June 6, 2000, among the
Borrowers, the Banks and the Agent," after 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,".
(f) Section 2.6 of the Existing Credit Agreement is amended by
deleting the last sentence of such Section 2.6 in its entirety.
(g) Section 2.7(a) of the Existing Credit Agreement is amended
by (i) deleting the parenthetical clause "(and if after the Acquisition Loan
Termination Date, applied to the remaining installments of the Acquisition Loans
pro rata)" in the proviso to the first sentence of such Section 2.7(a), and (ii)
deleting the parenthetical clause "(if prior to the Acquisition Loan Termination
Date)" in the last sentence of such Section 2.7(a).
(h) Section 2.7 of the Existing Credit Agreement is hereby
amended by the addition of the following subsection (d) to such Section 2.7:
(d) Reduction of Acquisition Commitments. Upon any
prepayment of the Acquisition Loans under Section 2.7(c), the
respective Acquisition Commitments of the Banks shall be
automatically and permanently reduced by an amount for each
Bank equal to such Bank's Pro Rata Share of such prepayment of
the Acquisition Loans.
(i) Section 2.8(a) of the Existing Credit Agreement is hereby
amended to read in its entirety as follows:
(a) The Acquisition Credit. The Borrowers shall repay
to the Banks in full on the New Acquisition Loan Termination
Date the aggregate principal amount of Acquisition Loans
outstanding on such date, together with all accrued and unpaid
interest thereon.
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(j) Section 2.10(b) of the Existing Credit Agreement is hereby
amended by replacing the pricing grid set forth in such Section 2.10(b) with the
following pricing grid:
Pricing Tier Funded Debt Ratio Facility Fee Rate
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I <1.75x 0.2500%
II =>1.75 x but <2.75x 0.2500%
III =>2.75 x but<3.25x 0.2500%
IV =>3.25 x but<3.75x 0.2500%
V =>3.75x but<4.25x 0.3750%
VI =>4.25 but <4.75x 0.5000%
VII =>4.75x 0.5000%
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 on or prior to June 30, 2000 (the date of satisfaction of all such
conditions being referred to as the "Amendment Effective Date"):
(a) 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 Agent and 100% of the Banks under the
Existing Credit Agreement.
(b) The Agent shall have received, on behalf of the Banks,
copies of (i) 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, (ii) the
partnership agreement of the Company, certified by the Secretary or an Assistant
Secretary of the Company and (iii) certified charter documents and good standing
certificates for such Persons from appropriate jurisdictions.
(c) The Agent shall have received, on behalf of the Banks and
the Collateral Agent, duly executed (i) 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 (ii) title endorsements or their equivalents, in form and substance
reasonably satisfactory to the Collateral Agent, with respect to the title
insurance policies listed on Schedule I hereto.
(d) The Agent shall have received, on behalf of the Banks and
the Collateral Agent, opinions of Morgan, Lewis & Bockius LLP, special counsel
for the Obligors, in substantially the form of Exhibit A hereto.
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(e) 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.
(f) The Agent shall have received, for the account of each
Bank, a non-refundable amendment fee in an amount equal to 0.20% of the
Acquisition Commitment of such Bank (without regard to usage). Such fees shall
be fully earned and nonrefundable on 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
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.
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(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) 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 Covenant. The Company hereby agrees to
use its best efforts to assist the Collateral Agent in obtaining, as promptly as
practicable, a Direction Notice from the Requisite Percentage in accordance with
Section 3(b) of the Collateral Agency Agreement authorizing the Collateral Agent
to execute the amendments to Mortgages to be delivered by the Company pursuant
to Section 2(c) hereof and Section 4(a) of the Third Amendment to Amended and
Restated Credit Agreement, dated as of March 22, 2000, among the Borrowers, the
Banks and the Agent.
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SECTION 5. 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.
(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
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Name: Robert W. Krick
Title: Treasurer
PETROLANE INCORPORATED
By: /s/ Robert W. Krick
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Name: Robert W. Krick
Title: Treasurer
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AGENT
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BANK OF AMERICA, N.A., as Agent
By: /s/ David Price
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Name: David Price
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Title: Vice President
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BANKS
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BANK OF AMERICA, N.A., as a Bank and an Issuing Bank
By: /s/ Paul A. Squires
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Name: Paul A. Squires
Title: Managing Director
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FIRST UNION NATIONAL BANK, as a Bank and as Syndication Agent
By: /s/ Joe K. Dancy
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Name: Joe K. Dancy
Title: Vice President
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THE BANK OF NEW YORK
By: /s/ Walter C. Parelli
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Name: Walter C. Parelli
Title: Vice President
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MELLON BANK, N.A.
By: /s/ Kristen M. Denning
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Name: Kristen M. Denning
Title: Assistant Vice President
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ALLFIRST BANK (formerly The First National Bank of Maryland)
By: /s/ Jennifer Uricheck
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Name: Jennifer Uricheck
Title: Assistant Vice President
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FLEET NATIONAL BANK
By: /s/ Kristine A. Kasselman
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Name: Kristine A. Kasselman
Title: Managing Director
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PNC BANK, NATIONAL ASSOCIATION
By: /s/ Eric G. Erickson
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Name: Eric G. Erickson
Title: Vice President
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UNION BANK OF CALIFORNIA, N.A.
By: /s/ Dustin Gaspari
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Name: Dustin Gaspari
Title: Vice President
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The undersigned hereby acknowledges and consents to the foregoing Fourth
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: June 6, 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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Dysart 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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9808 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 File No. 220408
SUBDIVISION", Halieu (Maui), Dated 9/15/97
Maui County, HI N/A
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3501 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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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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145 West Main Street, Route 24, Recorded 10/1/97 Policy #112-02-239350
Chester, Morris County, NJ MB7212 Page 47 Dated 5/5/98
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EXHIBIT A
[FORM OF OPINION OF COUNSEL TO BORROWERS]
[TO BE PROVIDED.]