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EXHIBIT 10.5
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AMERIGAS PROPANE, L.P.
AMERIGAS PROPANE, INC.
$80,000,000
First Mortgage Notes, Series E
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NOTE AGREEMENT
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Dated as of March 15, 2000
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TABLE OF CONTENTS
PAGE
ARTICLE I AUTHORIZATION OF NOTES......................................................1
Section 1.1. Authorization of Notes......................................................1
Section 1.2. Security for the Notes......................................................2
Section 1.3. Release of Liens on General Collateral......................................2
ARTICLE II SALE AND PURCHASE OF NOTES..................................................3
ARTICLE III CLOSING.....................................................................3
ARTICLE IV CONDITIONS TO CLOSING.......................................................3
Section 4.1. Representations and Warranties..............................................4
Section 4.2. Performance; No Default.....................................................4
Section 4.3. Compliance Certificates.....................................................4
Section 4.4. Opinions of Counsel.........................................................4
Section 4.5. Legal Investment............................................................5
Section 4.6. Intercreditor Agreement.....................................................5
Section 4.7. Other Security Documents....................................................5
Section 4.8. Recordation; Taxes, etc.....................................................6
Section 4.9. Operative Agreements........................................................6
Section 4.10. Sale of Other Notes.........................................................6
Section 4.11. Rating......................................................................6
Section 4.12. Insurance Broker's Certificate..............................................7
Section 4.13. Payment of Closing Fees.....................................................7
Section 4.14. Private Placement Number....................................................7
Section 4.15. Amendment to Note Agreements................................................7
Section 4.16. Other Agreements............................................................7
Section 4.17. Changes in Corporate Structure..............................................7
Section 4.18. Funding Instructions........................................................7
Section 4.19. Proprietary Software........................................................7
Section 4.20. Proceedings and Documents...................................................8
ARTICLE V REPRESENTATIONS AND WARRANTIES, ETC. OF THE OBLIGORS........................8
Section 5.1. Organization, Standing, etc.................................................8
Section 5.2. Partnership Interests; Subsidiaries.........................................8
Section 5.3. Qualification; Authorization, Etc...........................................9
Section 5.4. Business; Financial Statements..............................................9
Section 5.5. Changes, etc...............................................................10
Section 5.6. Tax Returns and Payments...................................................10
Section 5.7. Indebtedness...............................................................10
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Section 5.8. Transfer of Assets and Business............................................10
Section 5.9. Litigation, etc............................................................12
Section 5.10. Compliance with Other Instruments, etc.....................................12
Section 5.11. Governmental Consent.......................................................12
Section 5.12. Offer of Notes.............................................................13
Section 5.13. Use of Proceeds............................................................13
Section 5.14. Federal Reserve Regulations................................................13
Section 5.15. Investment Company Act.....................................................13
Section 5.16. Public Utility Holding Company Act.........................................13
Section 5.17. ERISA......................................................................14
Section 5.18. Environmental Matters......................................................14
Section 5.19. Foreign Assets Control Regulations, etc....................................14
Section 5.20. Disclosure.................................................................16
Section 5.21. Chief Executive Office.....................................................16
Section 5.22. No Government Proceedings; No Options......................................16
Section 5.23. Insurance..................................................................17
Section 5.24. Status of the Mortgaged Properties.........................................17
Section 5.25. Matters Relating to the General Partner....................................17
ARTICLE VI PURCHASER'S REPRESENTATIONS................................................17
Section 6.1. Securities Act.............................................................17
Section 6.2. ERISA Matters..............................................................18
Section 6.3. Status of Purchaser........................................................19
ARTICLE VII ACCOUNTING; FINANCIAL STATEMENTS AND OTHER INFORMATION.....................19
ARTICLE VIII INSPECTION; CONFIDENTIALITY................................................24
Section 8.1. Inspection.................................................................24
Section 8.2. Confidentiality............................................................24
ARTICLE IX PREPAYMENT OF NOTES........................................................25
Section 9.1. No Required Prepayments of the Notes.......................................25
Section 9.2. Optional Prepayments of the Notes with Make Whole Amount...................26
Section 9.3. Contingent Prepayments on Disposition of Assets; Prepayments on Taking
or Destruction.........................................................26
Section 9.4. Prepayment Procedure for Excess Sale Proceeds and Excess Taking Proceeds...26
Section 9.5. Notice of Optional Prepayments; Officers' Certificate......................28
Section 9.6. Allocation of Partial Prepayments..........................................28
Section 9.7. Maturity; Surrender, etc...................................................28
Section 9.8. Acquisition of Notes.......................................................29
Section 9.9. Change of Control..........................................................29
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ARTICLE X BUSINESS AND FINANCIAL COVENANTS OF THE OBLIGORS...........................31
Section 10.1. Indebtedness...............................................................31
Section 10.2. Liens, etc.................................................................33
Section 10.3. Investments, Guaranties, etc...............................................37
Section 10.4. Restricted Payments........................................................39
Section 10.5. Transactions with Affiliates...............................................39
Section 10.6. Subsidiary Stock and Indebtedness..........................................39
Section 10.7. Consolidation, Merger, Sale of Assets, etc.................................40
Section 10.8. Partnership or Corporate Existence, etc.; Business; Compliance with Laws...41
Section 10.9. Payment of Taxes and Claims................................................45
Section 10.10. Compliance with ERISA......................................................45
Section 10.11. Maintenance of Properties; Insurance; Environmental Laws...................45
Section 10.12. Operative Agreements.......................................................46
Section 10.13. Chief Executive Office.....................................................47
Section 10.14. Subsidiary Guarantors......................................................47
Section 10.15. New Mortgages; Conveyance Agreements.......................................47
Section 10.16. Further Assurances.........................................................47
Section 10.17. Covenant to Secure Notes Equally...........................................48
Section 10.18. Information Required by Rule 144A..........................................48
Section 10.19. Limitation on Sales of Receivables.........................................49
Section 10.20. No Action Requiring Registration...........................................49
Section 10.21. Designations With Respect to Subsidiaries..................................49
Section 10.22. Covenants of the General Partner...........................................50
ARTICLE XI EVENTS OF DEFAULT; ACCELERATION............................................51
ARTICLE XII REMEDIES ON DEFAULT; RECOURSE, ETC.........................................55
ARTICLE XIII DEFINITIONS................................................................55
Section 13.1. General Definitions........................................................55
Section 13.2. Accounting Terms And Determination.........................................75
ARTICLE XIV REGISTRATION, TRANSFER AND SUBSTITUTION OF NOTES...........................76
Section 14.1. Note Register; Ownership of Notes..........................................76
Section 14.2. Transfer and Exchange of Notes.............................................76
Section 14.3. Replacement of Notes.......................................................77
Section 14.4. Notes Held by the Obligors, etc., Deemed Not Outstanding...................77
Section 14.5. Transferee Obligations.....................................................77
ARTICLE XV PAYMENTS ON NOTES..........................................................77
Section 15.1. Place of Payment...........................................................77
Section 15.2. Home Office Payment........................................................78
Section 15.3. Payment in Full............................................................78
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ARTICLE XVI EXPENSES AND INDEMNIFICATION, ETC..........................................78
Section 16.1. Expenses...................................................................78
Section 16.2. Costs of Collection........................................................79
Section 16.3. Indemnification............................................................79
Section 16.4. Survival...................................................................79
ARTICLE XVII SURVIVAL OF REPRESENTATIONS AND WARRANTIES.................................80
ARTICLE XVIII AMENDMENTS AND WAIVERS.....................................................80
Section 18.1. Generally..................................................................80
Section 18.2. Corporate Transaction......................................................80
ARTICLE XIX NOTICES, ETC...............................................................81
ARTICLE XX SUBSTITUTION OF PURCHASER..................................................81
ARTICLE XXI MISCELLANEOUS..............................................................82
Section 21.1. Successors and Assigns.....................................................82
Section 21.2. Entire Agreement...........................................................82
Section 21.3. Descriptive Headings.......................................................82
Section 21.4. Counterparts...............................................................82
Section 21.5. Governing Law; Waiver of Jury Trial........................................82
Section 21.6. Payments Due on Non-Business Days..........................................82
Section 21.7. Satisfaction Requirement...................................................83
Section 21.8. Severability...............................................................83
Section 21.9. Consent to Jurisdiction; Service of Process................................83
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Schedule I -- Schedule of Purchasers
Schedule II -- Purchasers Payment and Notice Information
Schedule 4.17 -- Changes in Corporate Structure
Schedule 5.2 -- Subsidiaries
Schedule 5.3 -- List of Foreign Qualification to do Business
Schedule 5.4 -- List of Financial Statements
Schedule 5.7 -- Existing Indebtedness
Schedule 5.8(a) -- List of Certain Consents
Schedule 5.8(b) -- List of Counties where Assets are Located and List of Mortgaged Properties
Schedule 5.8(c) -- Certain Assets
Schedule 5.8(d) -- Assets Excluded from the General Collateral
Schedule 5.8(e) -- Specified Mortgage
Schedule 5.9 -- Litigation
Schedule 5.13 -- Use of Proceeds
Schedule 5.18 -- Environmental Matters
Schedule 5.22(a) -- Government Proceedings
Schedule 5.22(b) -- Options
Schedule 10.2 -- Existing Liens
Exhibit A -- Form of Series E Note
Exhibit B1 -- Form of Officers' Certificate of the Obligors
Exhibit B2 -- Form of Officers' Certificate of each Subsidiary of the Obligors
Exhibit C1 -- Form of Opinion of Special Counsel to the Obligors
Exhibit C2 -- Form of Opinion of Special Counsel to the Purchasers
Exhibit D -- Form of Intercreditor Agreement
Exhibit E-1 -- Form of Mortgage, Deed of Trust, Assignment of Leases and Rents, Security Agreement,
Financing Statement and Fixture Filing
Exhibit E-2 -- Form of Deed of Trust, Assignment of Lease and Rents, Security Agreement, Financing
Statement and Fixture Filing
Exhibit F -- Form of General Security Agreement
Exhibit G -- Form of Subsidiary Guarantee
Exhibit H -- Form of Subsidiary Security Agreement
Exhibit I-1 -- Form of Fourth Amendment to 1995 Note Agreement
Exhibit I-2 -- Form of First Amendment to 1999 Note Agreement
Exhibit J -- Form of Subordination Provisions
Exhibit K -- Form of Transfer Letter
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AMERIGAS PROPANE, L.P.
AMERIGAS PROPANE, INC.
460 North Gulph Road
King of Prussia, PA 19460
FIRST MORTGAGE NOTES, SERIES E
Dated as of March 15, 2000
TO THE PURCHASER LISTED
IN THE ATTACHED SCHEDULE I
WHO IS A SIGNATORY HERETO
Dear Purchaser:
AmeriGas Propane, L.P., a Delaware limited partnership (the
"Company"), is engaged in the business of wholesale and retail sales,
distribution and storage of propane gas and related petroleum derivative
products and the retail sale and distribution of propane related supplies and
equipment, including home appliances (the "Business"). AmeriGas Propane, Inc.,
a Pennsylvania corporation (the "General Partner") is the sole general partner
of the Company, owning a 1.0101% general partnership interest in the Company
and AmeriGas Partners, L.P., a Delaware limited partnership (the "Public
Partnership"), is the sole limited partner of the Company, owning a 98.9899%
limited partnership interest in the Company.
Accordingly, in consideration of the premises and agreements
hereinafter set forth, and intending to be legally bound hereby, the Company
and the General Partner hereby agree with you as follows:
ARTICLE I
AUTHORIZATION OF NOTES
Section 1.1. Authorization of Notes. The Company and the General Partner
will authorize the issue and sale of $80,000,000 aggregate principal amount of
their First Mortgage Notes in respect of which the Company and the General
Partner will be joint and several obligors (the "Notes," such term to include
any Notes issued in substitution therefor or replacement thereof pursuant to
ARTICLE XIV). The Company and the General Partner are herein collectively
referred to as the "Obligors" and each individually as an "Obligor." The Notes
shall be issued in a single series maturing and bearing interest as follows:
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Series Annual Principal Maturity
Designation Interest Rate Amount Date
Series E 8.50% $80,000,000 July 1, 2010
The Notes shall be substantially in the form of EXHIBIT A with such changes
therein, if any, as may be approved by you and the Obligors. Certain
capitalized terms used in this Agreement are defined in ARTICLE XIII;
references to a "Section" or a "Schedule" or an "Exhibit" are, unless otherwise
specified, to a Section of this Agreement or to a Schedule or an Exhibit
attached to this Agreement.
Section 1.2. Security for the Notes. Subject to the terms of SECTIONS
1.3, 10.14, 10.15 and 10.16, the Notes will be entitled to the benefit of the
following contracts and agreements:
(a) the Mortgages covering the Mortgaged Property located in
the counties listed in SCHEDULE 5.8(b) made by the Company in favor of
the Collateral Agent, as the same may be amended, supplemented or
modified from time to time;
(b) the General Security Agreement made by the Company in favor
of the Collateral Agent, as the same may be further amended, supplemented
or otherwise modified from time to time;
(c) the Subsidiary Guarantee of each Restricted Subsidiary as
the same may be further amended, supplemented or otherwise modified from
time to time;
(d) the Subsidiary Security Agreement of each Restricted
Subsidiary as the same may be further amended, supplemented or otherwise
modified from time to time.
Enforcement of the rights and benefits in respect of such Security Documents
and the allocation of proceeds thereof will be subject to an Intercreditor
Agreement dated the date of the 1995 Closing, as amended, in the form of
EXHIBIT D.
Section 1.3. Release of Liens on General Collateral. (a) The holders of
the Notes acknowledge and agree that such holders will discharge or release the
Liens created by the Security Documents pursuant to the request of the
Obligors, provided that (i) all other holders of Parity Debt simultaneously
release and discharge, in the same manner and to the same extent, the Liens of
the Security Documents, (ii) any such release and discharge shall be expressly
conditioned upon the requirement that in the event the Liens of the Security
Documents for any reason whatsoever re-attach for the benefit of the holders of
Parity Debt, then the Liens of the Security Documents shall ipso facto again
secure the holder of the Notes on an equal and pro rata basis, and (iii) at the
time of such discharge or release, no Default or Event of Default exists; and
provided, further, that notwithstanding any such release and discharge, the
Company shall be permitted to incur or have outstanding (A) Indebtedness under
a new or existing Revolving Credit Facility secured by Inventory and/or
Receivables (as each such term is defined in the UCC) of the Company, if, the
maximum amount of such secured Indebtedness does not exceed
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$100,000,000 (notwithstanding that the aggregate amount of Indebtedness
outstanding under the new or existing Revolving Credit Facility may exceed
$100,000,000) and (B) any other Indebtedness which is secured within the
limitations of SECTION 10.2.
(b) It is understood and agreed by the Obligors and the holders of the
Notes that from and after the date of the complete release of the Lien of the
Security Documents, neither the General Collateral nor any part or portion
thereof shall thereafter be subjected to any Lien except a Lien created or
incurred within the limitations provided in SECTION 10.2.
ARTICLE II
SALE AND PURCHASE OF NOTES
Subject to the terms and conditions of this Agreement, the Obligors will
issue and sell to you and you will purchase from the Obligors, at the Closing
provided for in ARTICLE III, Notes in the principal amounts specified opposite
your name in SCHEDULE I, at the purchase price specified in SCHEDULE I.
Contemporaneously with entering into this Agreement, the Obligors are entering
into identical Note Agreements (the "Other Agreements") with each of the other
purchasers named in SCHEDULE I (the "Other Purchasers"), providing for the sale
to each Other Purchaser, at the Closing, of Notes in the principal amounts
specified opposite its name in SCHEDULE I. The sale of Notes to you and the
Other Purchasers are to be separate sales, and this Agreement and the Other
Agreements constitute separate agreements.
ARTICLE III
CLOSING
The sale of the Notes to you and the Other Purchasers shall take place at
the offices of Morgan, Lewis & Bockius, LLP, 101 Park Avenue, New York, NY
10178, at 10:00 a.m., New York, New York time, at a closing (the "Closing") on
March 30, 2000. At the Closing, the Obligors will deliver to you Notes in the
principal amounts to be purchased by you, in the form of a single Note (or such
greater number of Notes as you may request by notice delivered to the Obligors
not less than three Business Days prior to the Closing), each dated the date of
the Closing and registered in your name (or in the name of your nominee as
indicated in SCHEDULE II), against payment of the purchase price therefor (in
the manner specified in SCHEDULE I), on the date of the Closing.
ARTICLE IV
CONDITIONS TO CLOSING
Your obligation to purchase and pay for the Notes to be issued and sold
to you at the Closing is subject to the fulfillment, prior to or at the
Closing, or waiver by you, of the following conditions:
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Section 4.1. Representations and Warranties. The representations and
warranties of each Obligor and its Affiliates contained in this Agreement, the
other Financing Documents, the Operative Agreements, the Memorandum and those
otherwise made in writing by or on behalf of the Obligors or any Affiliate of
the Obligors pursuant to this Agreement or the other Financing Documents, shall
be true and correct in all material respects when made and at the time of the
Closing as though made at the time of Closing, except to the extent that such
representations and warranties expressly relate to an earlier time or date, in
which case such representations and warranties shall have been true and correct
in all material respects as of such earlier time or date.
Section 4.2. Performance; No Default. Each Obligor and its Affiliates
shall have performed and complied in all material respects with all agreements
and covenants contained in this Agreement, any other Financing Document or any
Operative Agreement required to be performed or complied with by it prior to or
at the Closing, and at the time of the Closing no Default or Event of Default
or default by any Obligor or any Affiliate thereof under any Operative
Agreement shall have occurred and be continuing. Neither the Company, the
General Partner or any Subsidiary shall have entered into any transactions
since the date of the Memorandum that would have been prohibited by ARTICLE X
had such Section applied since such date except as contemplated by this
Agreement.
Section 4.3. Compliance Certificates. (a) You shall have received (1) an
Officers' Certificate of each Obligor, dated the date of the Closing and in
substantially the form of EXHIBIT B1, which shall, inter alia, demonstrate that
the issuance of the Notes is in compliance with the terms of the 1995 Note
Agreement and the 1999 Note Agreement, and (2) an Officers' Certificate of each
Restricted Subsidiary, dated the date of the Closing and in substantially the
form of EXHIBIT B2.
(b) Secretary's Certificate. The General Partner shall have delivered
to you a certificate certifying as to the resolutions attached thereto and any
other corporate or partnership proceedings relating to the authorization,
execution and delivery of the Notes and this Agreement and the Other
Agreements.
Section 4.4. Opinions of Counsel. You shall have received favorable
opinions from (a) Morgan, Lewis & Bockius, special counsel for the Obligors and
their respective Affiliates, substantially in the form of EXHIBIT C1, and (b)
Chapman and Cutler, your special counsel in connection with the transactions
contemplated by this Agreement, substantially in the form of EXHIBIT C2, each
addressed to you and dated the date of the Closing. Each Obligor hereby directs
its counsel referred to in clause (a) of this SECTION 4.4, to deliver to you
such opinions to be delivered by it pursuant to this SECTION 4.4 and authorizes
you to rely thereon.
Section 4.5. Legal Investment. On the date of the Closing your purchase
of Notes shall (a) be permitted by the laws and regulations of each
jurisdiction to which your investments are subject, but without recourse to
provisions (such as Section 1404(b) or 1405(a)(8) of the New York Insurance
Law) permitting limited investments by insurance companies in securities not
otherwise legally eligible for investment and (b) not violate any applicable
law or regulation (including, without limitation, Regulation U or X of the
Board of Governors of the Federal Reserve System) and (c) not subject you to
any tax, penalty or liability under or pursuant to any
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applicable law or regulation, which law or regulation was not in effect on the
date hereof. If requested by you by adequate prior written request to the
Obligors, you shall have received, at least five Business Days prior to the
Closing, an Officers' Certificate of each Obligor certifying as to such matters
of fact as you may reasonably specify to enable you to determine whether such
purchase is so permitted.
Section 4.6. Intercreditor Agreement. The Intercreditor Agreement shall
be in full force and effect and shall constitute the legal, valid and binding
obligation of all the parties thereto including, without limitation, the
execution by you and the Other Purchasers of all necessary supplements thereto.
Section 4.7. Other Security Documents. The Company shall have duly
authorized, executed, acknowledged (where necessary) and delivered (x)
Mortgages covering the Mortgaged Property located in the counties listed in
SCHEDULE 5.8(b), together with proper financing statements (Form UCC-1) under
the Uniform Commercial Code of all jurisdictions as may be necessary, or in the
opinion of your counsel desirable, to perfect (under the Uniform Commercial
Code in such jurisdictions) the Liens created by such Mortgages and (y) a
general security agreement (the "General Security Agreement") in the form of
EXHIBIT F, together with proper financing statements (Form UCC-1 or any other
form that may be required by any jurisdiction) under the Uniform Commercial
Code of all jurisdictions as may be necessary, or in the opinion of your
counsel desirable, to perfect the Liens created by such General Security
Agreement (including without limitation the Lien on the License Agreements).
Each Restricted Subsidiary shall have duly authorized, executed and delivered
(x) the subsidiary guarantee (the "Subsidiary Guarantee") in the form of
EXHIBIT G and (y) the subsidiary security agreement (the "Subsidiary Security
Agreement") in the form of EXHIBIT H, together with proper financing statements
(Form UCC-1 or any other form that may be required by any jurisdiction) under
the Uniform Commercial Code of all jurisdictions as may be necessary, or in the
opinion of your counsel desirable, to perfect the Liens created by such
Subsidiary Security Agreement. Each such Mortgage, or amendment thereto, shall
be in full force and effect and shall (a) constitute the legal, valid and
binding obligation of the Company and (b) when recorded pursuant to SECTION
4.8, (i) constitute a valid first mortgage lien of record on the Mortgaged
Property thereunder, subject only to the Liens permitted by SECTION 10.2, and
(ii) constitute a valid assignment for collateral purposes of, and create a
valid, presently effective security interest of record in, the equipment and
all other interests (other than real property interests) described therein,
subject only to the Liens permitted by SECTION 10.2. The General Security
Agreement, or amendment thereto, shall be in full force and effect and shall
constitute a valid assignment for collateral purposes of, and create a valid,
presently effective security interest of record in, the property constituting
the collateral thereunder, subject only to the Liens permitted by SECTION 10.2.
The Subsidiary Guarantee, or amendment thereto, shall be in full force and
effect and shall constitute a valid guaranty of the obligations described
therein and the Subsidiary Security Agreement, or amendment thereto shall be in
full force and effect and shall constitute a valid assignment for collateral
purposes of, and create a valid, presently effective security interest of
record in, the property constituting the collateral thereunder, subject only to
the Liens permitted by SECTION 10.2.
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Section 4.8. Recordation; Taxes, etc. The Conveyance Agreements referred
to in clause (b) of the definition of such term and the Security Documents, or
any amendments thereto (other than the Intercreditor Agreement), or proper
notices, statements or other instruments in respect thereof, covering all or
substantially all of the Assets located in the counties listed in SCHEDULE
5.8(b) covered by such Conveyance Agreements and Security Documents, shall have
been duly recorded, published, registered and filed, and all other actions
deemed necessary by your special counsel shall have been duly performed or
taken, in such manner and in such places as is required by applicable law (a)
to convey to the Company record and beneficial ownership of the Assets located
in such counties purported to be conveyed by such Conveyance Agreements and (b)
to establish, and, if applicable, perfect, subject to the Liens permitted by
SECTION 10.2, liens and security interests purported to be, and to the full
extent, granted by each of the Security Documents to the Collateral Agent with
respect to the Assets located in such counties for the benefit of the holders
of the Notes and their respective successors and assigns, and all taxes, fees
and other governmental charges then due in connection with the execution,
delivery, recording, publishing, registration and filing of such documents or
instruments and the issuance, sale and delivery of the Notes under this
Agreement and the Other Agreements shall have been paid in full.
Section 4.9. Operative Agreements. The Operative Agreements shall have
been duly authorized, executed and delivered by the respective parties thereto
substantially in the form previously provided to you (other than those referred
to in clause (b) of the definition of Conveyance Agreements), shall be in full
force and effect, and shall constitute the legal, valid and binding obligations
of the respective parties thereto, and no default (except for waived defaults
disclosed in the Officers' Certificate of the Company delivered pursuant to
SECTION 4.3) or accrued right of termination on the part of any of the parties
thereto shall exist thereunder as of the date of the Closing, and you and the
Collateral Agent shall have received a fully executed original, or a true and
correct copy, of each Operative Agreement.
Section 4.10. Sale of Other Notes. Contemporaneously with the Closing,
the Obligors shall sell to the Other Purchasers the Notes to be purchased by
them at the Closing as set forth in SCHEDULE I.
Section 4.11. Rating. Prior to the Closing, the Notes shall have
received a rating of "BBB" or better from Fitch Investors Service, Inc.
Section 4.12. Insurance Broker's Certificate. Insurance complying with
the provisions of Sections 20 and 21 of the Intercreditor Agreement shall be in
full force and effect and you, the Other Purchasers and the Collateral Agent
shall have received a certificate to that effect from AON or such other
independent insurance brokers or consultants as shall be reasonably
satisfactory to you, dated the date of the Closing.
Section 4.13. Payment of Closing Fees. The Company shall have paid the
fees and disbursements of your special counsel required by ARTICLE XVI to be
paid by the Company on the date of the Closing.
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Section 4.14. Private Placement Number. The Obligors shall have obtained
for the Notes a Private Placement Number issued by Standard & Poor's CUSIP
Service Bureau (in cooperation with the Securities Valuation Office of the
National Association of Insurance Commissioners).
Section 4.15. Amendment to Note Agreements. (a) The Company shall have
delivered to you a true and complete copy of the Fourth Amendment to the 1995
Note Agreement in the form of EXHIBIT I-1.
(b) The Company shall have delivered to you a true and correct copy of
the First Amendment to the 1999 Note Agreement in the form of EXHIBIT I-2.
Section 4.16. Other Agreements. The Company shall have delivered to you
a true and complete copy of the License Agreements and the Credit Agreement.
Section 4.17. Changes in Corporate Structure. Except as set forth on
SCHEDULE 4.17, the Company shall not have changed its jurisdiction of formation
or been a party to any merger or consolidation and shall not have succeeded to
all or any substantial part of the liabilities of any other entity, at any time
following the date of the most recent financial statements referred to in
SCHEDULE 5.4.
Section 4.18. Funding Instructions. At least three Business Days prior to
the date of the Closing, you shall have received written instructions executed
by a Responsible Officer of the General Partner directing the manner of the
payment of funds and setting forth (a) the name and address of the transferee
bank, (b) such transferee bank's ABA number, (c) the account name and number
into which the purchase price for the Notes is to be deposited, and (d) the
name and telephone number of the account representative responsible for
verifying receipt of such funds.
Section 4.19. Proprietary Software. You shall have received evidence that
the FAST and Stars I and II proprietary software systems have been registered
in the United States Copyright Office.
Section 4.20. Proceedings and Documents. All proceedings in connection
with the transactions contemplated by this Agreement and all documents and
instruments incident to such transactions shall be reasonably satisfactory to
you and your special counsel, and you and your special counsel shall have
received such additional certificates and all such counterpart originals or
certified or other copies of such documents as you or they may reasonably
request.
ARTICLE V
REPRESENTATIONS AND WARRANTIES, ETC. OF THE OBLIGORS
Each of the Company and the General Partner represents and warrants to
you as set forth below in SECTIONS 5.1 through 5.25.
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Section 5.1. Organization, Standing, etc. The Company is a limited
partnership duly organized, validly existing and in good standing under the
Delaware Revised Uniform Limited Partnership Act and has all requisite
partnership power and authority to own and operate its properties (including
without limitation the Assets owned and operated by it), to conduct its
business as described in the Memorandum, to enter into this Agreement and such
other Financing Documents and Operative Agreements to which it is a party, to
issue and sell the Notes and to carry out the terms of this Agreement, the
Notes and such other Financing Documents and Operative Agreements. The General
Partner is a corporation duly organized, validly existing and in good standing
under the laws of the Commonwealth of Pennsylvania and has all requisite
corporate power and authority to own and operate its properties, to act as the
sole general partner of the Company and to execute and deliver in its
individual capacity and in its capacity as the sole general partner of the
Company this Agreement, the Notes and such other Financing Documents and
Operative Agreements to which the Company or the General Partner is a party.
Each Restricted Subsidiary of the Company is a corporation duly organized,
validly existing and in good standing under the laws of its state of
incorporation and has all requisite corporate power and authority to own and
operate its properties (including without limitation the Assets owned and
operated by it) and to execute and deliver the Security Documents and Operative
Agreements to which such Subsidiary is a party.
Section 5.2. Partnership Interests; Subsidiaries. (a) The sole general
partner of the Company is the General Partner, which owns a 1.0101% general
partnership interest in the Company. On the date of the Closing (i) the only
limited partner of the Company is the Public Partnership, which owns a 98.9899%
limited partnership interest in the Company, and (ii) the Company does not have
any partners other than the General Partner and the Public Partnership.
(b) The Company does not have any Subsidiary other than as set forth
on SCHEDULE 5.2 or any Investments in any Person (other than as set forth on
SCHEDULE 5.2 or Investments of the types described in SECTION 10.3(a)).
(c) All of the outstanding shares of capital stock or similar equity
interests of each Restricted Subsidiary shown in SCHEDULE 5.2 as being owned by
the Company and its Restricted Subsidiaries have been validly issued, are fully
paid and nonassessable and are owned by the Company or another Restricted
Subsidiary free and clear of any Lien (except as otherwise disclosed in
SCHEDULE 5.2).
Section 5.3. Qualification; Authorization, Etc. The Company is duly
qualified or registered and is in good standing as a foreign limited
partnership for the transaction of business, and each of the Company's
Subsidiaries and the General Partner is qualified or registered and is in good
standing as a foreign corporation for the transaction of business, in the
states listed in SCHEDULE 5.3, which are the only jurisdictions in which the
nature of their respective activities or the character of the properties they
own, lease or use makes such qualification or registration necessary and in
which the failure so to qualify or to be so registered would have a Material
Adverse Effect. Each of the Company and the General Partner has taken all
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necessary partnership action or corporate action, as the case may be, to
authorize the execution, delivery and performance by it of this Agreement, the
Notes and each of the Operative Agreements and other Financing Documents to
which it is a party. Each Subsidiary of the Company has taken all necessary
corporate action to authorize the execution, delivery and performance by it of
each of the Operative Agreements and Security Documents to which it is a party.
Each of the Company and the General Partner has duly executed and delivered
each of this Agreement, the Notes and the Operative Agreements and other
Financing Documents to which it is a party, and each of them constitutes the
Company's or the General Partner's, as the case may be, legal, valid and
binding obligation enforceable against it in accordance with its terms, except
as such enforceability may be limited by bankruptcy, insolvency, moratorium or
similar laws affecting creditors' rights generally. Each Subsidiary of the
Company has duly executed and delivered each of the Operative Agreements and
Security Documents to which it is a party, and each of them constitutes such
Subsidiary's legal, valid and binding obligation enforceable against it in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium or similar laws affecting creditors' rights
generally.
Section 5.4. Business; Financial Statements. (a) The Company, through
its agent, Salomon Smith Barney Inc., has delivered to you and each Other
Purchaser a copy of an Offering Memorandum, dated March 8, 2000, together with
the Offering Memorandum Supplement dated March 10, 2000 (collectively, the
"Memorandum"), relating to the transactions contemplated hereby.
(b) The Company has delivered to you and each of the Other Purchasers
copies of the financial statements of the Company and its Subsidiaries listed
on SCHEDULE 5.4. All of said financial statements (including in each case the
related schedules and notes) fairly present in all material respects the
consolidated financial position of the Company and its Subsidiaries as of the
respective dates specified in such financial statements and the consolidated
results of their operations and cash flows for the respective periods so
specified and have been prepared in accordance with GAAP consistently applied
throughout the periods involved except as set forth in the notes thereto
(subject, in the case of any interim financial statements, to normal year-end
adjustments).
Section 5.5. Changes, etc. Except as contemplated by this Agreement, the
other Financing Documents or the Memorandum, since September 30, 1999, (a) none
of the Company, the General Partner or any of their respective Restricted
Subsidiaries has incurred any material liabilities or obligations, direct or
contingent, nor entered into any material transaction, in each case other than
in the ordinary course of its business, and (b) there has not been any material
adverse change in or effect on the financial condition or prospects of the
Company or in the Business or Assets.
Section 5.6. Tax Returns and Payments. Each of the Company, the General
Partner, and their respective Subsidiaries has filed all material tax returns
required by law to be filed by it or has properly filed for extensions of time
for the filing thereof, and has paid all material taxes, assessments and other
governmental charges levied upon it or any of its properties, assets, income or
franchises which are shown to be due on such returns, other than those which
are not past due or are presently being contested in good faith by appropriate
proceedings diligently conducted for which such reserves or other appropriate
provisions, if any, as shall be required by GAAP have been made. The Company is
a limited partnership not subject to taxation with respect to its income or
gross receipts under applicable state (other than Hawaii, Illinois,
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Michigan, New Hampshire, Wisconsin and Tennessee) laws and is treated as a
pass-through entity for U.S. federal income tax purposes.
Section 5.7. Indebtedness. Other than the Indebtedness represented by
the Notes, and the Indebtedness of the General Partner and its Restricted
Subsidiaries set forth in SCHEDULE 5.7 (which Indebtedness will remain
outstanding, except as otherwise indicated in SCHEDULE 5.7) none of the
Company, its Restricted Subsidiaries or the General Partner has any secured or
unsecured Indebtedness outstanding. No instrument or agreement to which the
Company or any of its or any of its Restricted Subsidiaries is a party or by
which the Company or any such Restricted Subsidiary is bound (other than this
Agreement, the 1995 Note Agreement, the Credit Agreement, the 1999 Note
Agreement, and other than as indicated in SCHEDULE 5.7) will contain any
restriction on the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness.
Section 5.8. Transfer of Assets and Business. (a) Except as set forth in
SCHEDULE 5.8(a), each of the General Partner, the Company and its Restricted
Subsidiaries is in possession of, and operating in compliance in all material
respects with, all franchises, grants, authorizations, approvals, licenses,
permits (other than permits required pursuant to Environmental Laws),
easements, rights-of-way, consents, certificates and orders (collectively, the
"Permits") required (i) to own, lease or use its properties (including without
limitation to own, lease or use the Assets owned, leased or used by it) and
(ii) considering all such Permits in the possession of, and complied with by,
the General Partner, the Company and its Restricted Subsidiaries taken
together, to permit the conduct of the Business as now conducted and proposed
to be conducted, except for those Permits (collectively, the "Routine Permits")
(x) which are routine or administrative in nature and are expected in the
reasonable judgment of the Company to be obtained or given in the ordinary
course of business after the date of the Closing, or (y) which, if not obtained
or given, would not, individually or in the aggregate, present a reasonable
likelihood of having a Material Adverse Effect. SCHEDULE 5.8(a) sets forth a
list of substantially all of the consents that may be required to transfer
those Permits (other than Routine Permits) constituting an interest in Assets
which have not been obtained as of the date hereof, and each of the Company and
the General Partner has requested the consent of all parties listed thereon for
the transfer of such Permits. To the best knowledge of the Company, no product
of the Company or any of its Restricted Subsidiaries infringes in any material
respect any license, permit, franchise, authorization, patent, copyright,
service mark, trademark, trade name or other right owned by any other Person.
To the best knowledge of the Company, there is no material violation by any
Person of any right of the Company or any of its Restricted Subsidiaries with
respect to any patent, copyright, service mark, trademark, trade name or other
right owned or used by the Company or any of its Restricted Subsidiaries.
(b) On the date hereof the Company and its Restricted Subsidiaries
have (i) good and marketable title to substantially all of the Assets
constituting real property and (ii) good and sufficient title to substantially
all of the Assets constituting personal property for the use and operation of
such personal property as it is used on the date hereof and proposed to be used
in the Business, in each case subject to no Liens except such as are permitted
by SECTION 10.2 and Liens which will be discharged at the Closing. SCHEDULE
5.8(b) contains a list of (x) counties where the Assets are located and (y)
each Mortgaged Property with the address of each such
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Mortgaged Property. Except as set forth on SCHEDULE 5.8(b), on the date of
Closing, the General Partner, and the Restricted Subsidiaries of the Company
will not own or lease any Assets constituting real property. Except as set
forth on SCHEDULE 5.8(b), the Assets owned by the Company and its Restricted
Subsidiaries are substantially all of the assets and properties necessary to
enable the Company and its Restricted Subsidiaries to conduct the Business in
the same manner as previously conducted by AmeriGas, Petrolane and their
respective Subsidiaries. Subject to such exceptions as would not, individually
or in the aggregate, present a reasonable likelihood of having a Material
Adverse Effect, (A) on the date hereof, the Company and its Restricted
Subsidiaries enjoy peaceful and undisturbed possession under all leases and
subleases necessary in any material respect for the conduct of the Business,
and (B) all such leases and subleases are valid and subsisting and are in full
force and effect. Except to perfect, preserve and protect Liens permitted by
SECTION 10.2 and Liens which will be discharged at the Closing, (x) no
presently effective financing statements under the Uniform Commercial Code
which name any of the Company, the General Partner, or their respective
Restricted Subsidiaries as debtor, and which individually or in the aggregate
relate to any material part of the Assets, are on file in any jurisdiction in
which any of the Assets are (or have been) located or the Company, the General
Partner, or any such Restricted Subsidiary is organized or has its principal
place of business and (y) none of the Company, the General Partner, or any such
Restricted Subsidiary has signed, or authorized the filing by or on behalf of
any secured party of, any presently effective financing statements which
individually or in the aggregate relate to any material part of the Assets.
(c) On the date of the Closing, (i) the Company holds record and
beneficial ownership of real properties, easements and licenses comprising all
of the Assets owned by them (except as set forth on SCHEDULE 5.8(c)) and (ii)
except for real property acquired within 90 days prior to the date of the
Closing, the Conveyance Agreements referred to in clause (b) of the definition
of such term and the Security Documents (other than the Intercreditor
Agreement), or proper notices, statements or other instruments in respect
thereof, will have been duly recorded, published, registered or filed as
required by SECTION 4.8 with respect to all of the Assets located in the
counties listed in SCHEDULE 5.8(b).
(d) On the date of the Closing, the Assets constitute all of the
General Collateral (other than as set forth in SCHEDULE 5.8(d)).
(e) On the date of Closing each Mortgaged Property listed on SCHEDULE
5.8(e) has title insurance.
Section 5.9. Litigation, etc. There is no action, proceeding or
investigation pending or, to the knowledge of the Company upon reasonable
inquiry, threatened against the Company, the Public Partnership, the General
Partner or any of their respective Restricted Subsidiaries, (a) which questions
the validity of this Agreement, the other Financing Documents or any Operative
Agreement or any action taken or to be taken pursuant to this Agreement, the
other Financing Documents or any Operative Agreement, or (b) except as set
forth in SCHEDULE 5.9, which would present a reasonable likelihood of having,
either in any case or in the aggregate, a Material Adverse Effect.
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Section 5.10. Compliance with Other Instruments, etc. (a) On the date of
the Closing, immediately prior to the completion of any of the transactions
contemplated by this Agreement, none of the Company, the General Partner, or
any of their respective Restricted Subsidiaries will be in violation of (i) any
provision of its certificate or articles of incorporation or other constitutive
documents or its by-laws, (ii) any provision of any agreement or instrument to
which it is a party or by which any of its properties is bound or (iii) 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, except (in the case of clauses (ii) and (iii) above
only) for such violations which would not, individually or in the aggregate,
present a reasonable likelihood of having a Material Adverse Effect. Neither
the General Partner nor the Public Partnership is in violation of any provision
of the Partnership Agreement.
(b) The execution, delivery and performance by each of the Company and
the General Partner of this Agreement, the Notes and the other Financing
Documents and Operative Agreements to which it is a party, will not (i) violate
(x) any provision of the Partnership Agreement or the certificate or articles
of incorporation or other constitutive documents or by- laws of the Company,
the General Partner, 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, 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 Company to create) any Lien not permitted by SECTION 10.2.
(c) Upon giving effect to the issuance of the Notes on the date of
Closing, no Note shall be "in default," as that term is used in Section
1405(a)(2) of the New York Insurance Law. Each Obligor is, and upon giving
effect to the issuance of the Notes on the date of Closing will be, a "solvent
institution," as that term is used in Section 1405 of the New York Insurance
Law, whose "obligations .... are not in default as to principal or interest,"
as those terms are used in said Section 1405(c).
Section 5.11. Governmental Consent. (a) 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 Agreement,
or the other Financing Documents or Operative Agreements to which the Company
or any of its Restricted Subsidiaries or the General Partner is a party, and
(b) no such consent, approval, authorization, declaration or filing is required
for the valid offer, issue, sale, delivery and performance of the Notes
pursuant to this Agreement and the Other Agreements.
Section 5.12. Offer of Notes. Neither the Company nor any of its
Affiliates (including without limitation the General Partner) nor anyone acting
on its or their behalf has directly or indirectly offered the Notes or any part
thereof or any similar securities for sale to, or solicited any offer to buy
any of the same from, or otherwise approached or negotiated in respect thereof
with, anyone other than you, the Other Purchasers and not more than 100 other
institutional
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investors. Neither the Company nor anyone acting on its behalf has taken any
action which would subject the issuance and sale of the Notes to the
registration and prospectus delivery provisions of the Securities Act or to the
registration or qualification provisions of any securities or Blue Sky law of
any applicable jurisdiction.
Section 5.13. Use of Proceeds. The Company will apply the proceeds of
the sale of the Notes as set forth in SCHEDULE 5.13.
Section 5.14. Federal Reserve Regulations. Neither the Company nor the
General Partner will, directly or indirectly, use any of the proceeds of the
sale of the Notes for the purpose, whether immediate, incidental or ultimate,
of buying a "margin stock" or of maintaining, reducing or retiring any
indebtedness originally incurred to purchase a stock that is currently a
"margin stock," or for any other purpose which might constitute this
transaction a "purpose credit" which is secured "directly or indirectly by
margin stock," in each case within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System (12 C.F.R. 221, as amended), or
otherwise take or permit to be taken any action which would involve a violation
of such Regulation U or of Regulation X (12 C.F.R. 224, as amended) or to
involve any broker or dealer in a violation of Regulation T of said Board (12
C.F.R. 220) or any other applicable regulation of such Board. No indebtedness
being retired, directly or indirectly, out of the proceeds of the sale of the
Notes was incurred for the purpose of purchasing or carrying any stock which is
currently a "margin stock," and neither the Company, the General Partner nor
the Public Partnership owns or has any present intention of acquiring any
amount of such "margin stock".
Section 5.15. Investment Company Act. Neither of the Company or the
General Partner is an "investment company," or a company "controlled" by an
"investment company," registered, or required to be registered, or subject to
regulation under the Investment Company Act of 1940, as amended.
Section 5.16. Public Utility Holding Company Act. Neither the Company nor
the General Partner is a "holding company" within the meaning of Section
2(a)(7)(A) of the Public Utility Holding Company Act of 1935, as amended (the
"PUHCA"). Each of the Company and the General Partner is a "subsidiary company"
of a "holding company," within the meaning of the PUHCA, but each of UGI (the
"holding company") the Company and the General Partner is exempt from all of
the provisions of the PUHCA and the rules thereunder other than Section 9(a)(2)
thereof based upon the filing by UGI with the Commission of an exemption
statement on Form U-3A-2 dated February 25, 2000 pursuant to Rule 2 under the
PUHCA (17 C.F.R. sections 250.2).
Section 5.17. ERISA. (a) Except to the extent that any of the following
would not, either alone or together, present a reasonable likelihood of having
a Material Adverse Effect: (i) no accumulated funding deficiency (as defined in
Section 302 of ERISA and Section 412 of the Code), whether or not waived,
exists with respect to any Plan (other than a Multiemployer Plan); (ii) no
liability to the PBGC has been or is expected by the Company or any Related
Person to be incurred with respect to any Plan (other than a Multiemployer
Plan) by the Company or any Related Person; (iii) neither the Company nor any
Related Person has incurred or presently
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expects to incur any withdrawal liability under Title IV of ERISA with respect
to any Multiemployer Plan; and (iv) all Plans (other than Multiemployer Plans)
are in compliance, and have been administered in compliance, with all
applicable laws, including ERISA and the Code.
(b) The execution and delivery of this Agreement and the Other
Agreements and the issue and sale of the Notes hereunder and thereunder will
not involve any non-exempt "prohibited transaction" within the meaning of
Section 406 of ERISA or Section 4975 of the Code. The representations by the
Company in the immediately preceding sentence are made in reliance upon and
subject to the accuracy of your representations in SECTION 6.2 of this
Agreement and the representations of the Other Purchasers in SECTION 6.2 of the
Other Agreements as to the source of the funds or other consideration to be
used to pay the purchase price of the Notes to be purchased by you and the
Other Purchasers, respectively. With respect to each employee benefit plan
identified to the Company in accordance with clause (c) of SECTION 6.2 of this
Agreement or of any of the Other Agreements, neither the Company nor any
"affiliate" (as defined in Section V(c) of the QPAM Exemption) of the Company
has at this time, and has not exercised at any time within the one year period
preceding the date of the Closing, the authority to appoint or terminate you or
any Other Purchaser as manager of any of the assets of any such plan or to
negotiate the terms of a management agreement with you or any other Purchaser
on behalf of any such plan.
Section 5.18. Environmental Matters. (a) Except as disclosed in SCHEDULE
5.18 or where noncompliance would not present a reasonable likelihood of having
a Material Adverse Effect, each of the Company and its Restricted Subsidiaries
will be in compliance with all Environmental Laws applicable to it and to the
Business or Assets. Except as disclosed in SCHEDULE 5.18, or where a reasonable
likelihood of having a Material Adverse Effect is not presented, the Company
and its Restricted Subsidiaries have obtained and are in compliance with all
permits, licenses, and approvals required under Environmental Laws. Except as
disclosed in SCHEDULE 5.18, or where a reasonable likelihood of having a
Material Adverse Effect would not be presented the Company and its Restricted
Subsidiaries have submitted timely and complete applications to renew any
expired or expiring Permits required pursuant to any Environmental Law.
SCHEDULE 5.18 lists all notices from Federal, state or local Governmental
Authorities or other Persons to the Company or any of its Restricted
Subsidiaries, alleging or threatening any liability on the part of the Company
or any such Subsidiary, pursuant to any Environmental Law that presents a
reasonable likelihood of having a Material Adverse Effect. All reports,
documents, or other submissions required by Environmental Laws to be submitted
by the Company to any Governmental Authority or Person have been filed by the
Company and the General Partner, except where the failure to do so would not
present a reasonable likelihood of having a Material Adverse Effect.
(b) Except as disclosed in SCHEDULE 5.18 or where a reasonable
likelihood of having a Material Adverse Effect would not be presented: (i)
there is no Hazardous Substance present at any of the real property currently
owned or leased by the Company or any of its Restricted Subsidiaries, and (ii)
to the knowledge of the Company, there was no Hazardous Substance present at
any of the real property formerly owned or leased by the Company or any of its
Restricted Subsidiaries during the period of ownership or leasing by such
Person; and with respect to such real property and subject to the same
knowledge and temporal qualifiers
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concerning Hazardous Substances with respect to formerly owned or leased real
properties, there has not occurred (x) any release, or to the knowledge of the
Company, any threatened release of a Hazardous Substance, or (y) any discharge
or, to the knowledge of the Company, threatened discharge of any Hazardous
Substance into the ground, surface or navigable waters which discharge or
threatened discharge violates any Federal, state, local or foreign laws, rules
or regulations concerning water pollution, in each case except as disclosed in
SCHEDULE 5.18 or where a reasonable likelihood of having a Material Adverse
Effect would not be presented.
(c) Except as set forth in SCHEDULE 5.18, or where a reasonable
likelihood of having a Material Adverse Effect would not be presented, none of
the Company or any of its Restricted Subsidiaries has disposed of, transported,
or arranged for the transportation or disposal of any Hazardous Substance where
such disposal, transportation, or arrangement would give rise to liability
pursuant to CERCLA or any analogous state statute.
(d) Except as set forth in SCHEDULE 5.18 or where a reasonable
likelihood of having a Material Adverse Effect would not be presented, as of
the date hereof: (1) no lien has been asserted by a Governmental Authority or
Person resulting from the use, spill, discharge, removal, or remediation of any
Hazardous Substance with respect to any real property currently owned or leased
by the Company or any of its Restricted Subsidiaries, and (2) to the knowledge
of the Company, no such lien was asserted with respect to any of the real
property formerly owned or leased by the Company or any of its Restricted
Subsidiaries during the period of ownership or leasing of the real property by
such Person.
(e) Except as set forth in SCHEDULE 5.18 or where a reasonable
likelihood of having a Material Adverse Effect would not be presented: (1)
there are no underground storage tanks, asbestos-containing materials,
polychlorinated biphenyls, or urea formaldehyde insulation at any of the real
property currently owned or leased by the Company or any of its Restricted
Subsidiaries in violation of Environmental Laws, and (2) to the knowledge of
the Company, there were no underground storage tanks, asbestos-containing
materials, polychlorinated biphenyls, or urea formaldehyde insulation at any of
the real property formerly owned or leased by the Company or any of its
Restricted Subsidiaries in violation of Environmental Laws during the period of
ownership or leasing of such real property by such Person.
(f) Except as disclosed in SCHEDULE 5.18 or where a reasonable
likelihood of having a Material Adverse Effect would not be presented, as of
the date hereof, any propane is stored, used or handled by the Company or any
of its Restricted Subsidiaries in compliance with all applicable Environmental
Laws.
Section 5.19. Foreign Assets Control Regulations, etc. Neither the issue
and sale of the Notes by the Company and the General Partner nor their use of
the proceeds thereof as contemplated by this Agreement will violate the Trading
with the Enemy Act, as amended, or any of the foreign assets control
regulations of the United States Treasury Department (31 CFR, Subtitle B,
Chapter V, as amended) or any enabling legislation or executive order relating
thereto.
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Section 5.20. Disclosure. Neither this Agreement, the Memorandum, the
other Financing Documents, nor any other document, certificate or instrument
delivered to you by or on behalf of the Company or the General Partner pursuant
to, or otherwise referenced in, this Agreement, contains any untrue statement
of a material fact or omits to state a material fact necessary in order to make
the statements contained therein not misleading. There is no fact known to the
Company or the General Partner which has, or would present a reasonable
likelihood of having (so far as the Company or the General Partner can now
reasonably foresee based on facts known to them), a Material Adverse Effect
which has not been set forth or referred to in this Agreement or the
Memorandum.
Section 5.21. Chief Executive Office. The chief executive office of the
Company and the office where it maintains its records relating to the
transactions contemplated by the Operative Agreements is located at 460 North
Gulph Road, King of Prussia, PA 19406.
Section 5.22. No Government Proceedings; No Options. (a) Except as set
forth in SCHEDULE 5.22(a), none of the General Partner, the Company or any of
its Restricted Subsidiaries has received any notice of, or has any knowledge
of, any pending or contemplated casualty or condemnation proceeding affecting
the General Partner, the Company, any of its Restricted Subsidiaries, the
Mortgaged Properties, or any of the Assets or any sale or disposition thereof
in lieu of condemnation or casualty. Except as disclosed in SCHEDULE 5.22(a)
there are no existing, pending, or, to the knowledge of the Company,
contemplated or threatened governmental rules, regulations, plans, studies,
proceedings, court orders or decisions, which do or could adversely affect the
use or value of any Mortgaged Property.
(b) Except as set forth in SCHEDULE 5.22(b), none of the General
Partner, the Company or any of its Restricted Subsidiaries is obligated under
any right of first refusal, option or other contractual right to sell, assign,
transfer or otherwise dispose of any Mortgaged Property or any interest
therein.
Section 5.23. Insurance. The Company and its Restricted Subsidiaries are
in compliance with the terms and conditions contained in Sections 20 and 21 of
the Intercreditor Agreement.
Section 5.24. Status of the Mortgaged Properties. Except for such
exceptions as would not, individually or in the aggregate, present a reasonable
likelihood of having a Material Adverse Effect: (a) all improvements comprising
a portion of any Mortgaged Property lie wholly within the boundary and building
restriction lines of such Mortgaged Property and no improvements on adjoining
properties encroach upon any Mortgaged Property in any respect; (b) none of the
Mortgaged Properties are located in an area identified by the Secretary of
Housing and Urban Development or a successor thereto as an area having special
flood hazards pursuant to the terms of the National Flood Insurance Act of
1968, or the Flood Disaster Protection Act of 1973, as amended, or any
successor law; (c) each Mortgaged Property is served by all utilities in
adequate supply required for the use herein contemplated; and (d) each
Mortgaged Property has unrestricted access from public roads, and all streets
necessary to serve each Mortgaged Property have been completed and are
serviceable.
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Section 5.25. Matters Relating to the General Partner. (a) The General
Partner is a Wholly-Owned Subsidiary of AmeriGas, Inc. and owns, in addition to
the interest described in SECTION 5.2, a 1% general partnership interest and a
38.5% limited partnership interest in the Public Partnership.
(b) The General Partner has delivered to you a complete and correct
copy of the condensed balance sheet of the General Partner as of September 30,
1999, which has been prepared in accordance with GAAP to the extent applicable
to such balance sheet and which fairly presents in all material respects the
financial position of the General Partner in accordance with the assumptions
disclosed therein at the date of such balance sheet.
ARTICLE VI
PURCHASER'S REPRESENTATIONS
Section 6.1. Securities Act. You represent that you are purchasing the
Notes (a) for your own account or for one or more separate accounts maintained
by you or for the account of one or more pension or trust funds, in each case
not with a view to or for sale in connection with any distribution thereof
within the meaning of the Securities Act or with any present intention of
distributing or selling any of the Notes or (b)(i) for your own account for
resale to one or more institutional accredited investors (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) pursuant to one or more
transactions in which such accredited investors make the representation
contained in this ARTICLE VI to you and (ii) not with a view to any
distribution thereof in a transaction that would violate the Securities Act or
the securities laws of any State of the United States or any other applicable
jurisdiction, provided that the disposition of your property shall at all times
be within your control. If you are purchasing for the account of one or more
pension or trust funds, you represent that (except to the extent that you have
otherwise advised Chapman and Cutler and the Company in writing) you have sole
investment discretion with respect to the acquisition and disposition of the
Notes to be issued to you pursuant to this Agreement and the determination and
decision on your behalf to purchase such Notes for such pension or trust funds
is being made by the same individual or group of individuals who customarily
pass on such investments.
Section 6.2. ERISA Matters. You represent that at least one of the
following statements is an accurate representation as to the source of funds or
other assets to be used by you to pay the purchase price of the Notes purchased
by you hereunder:
(a) if you are an insurance company, the funds are from an "insurance
company general account" within the meaning of Department of Labor Prohibited
Transaction Exemption 95-60 (issued July 12, 1995) and there is no employee
benefit plan, treating as a single plan, all plans maintained by the same
employer or employee organization, with respect to which the amount of the
general account reserves and liabilities for all contracts held by or on behalf
of such plan, exceed ten percent (10%) of the total reserves and liabilities of
such general account (exclusive of separate account liabilities) plus surplus,
as set forth in the NAIC Annual Statement filed with your state of domicile; or
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(b) if you are an insurance company, to the extent that any of such
funds or other assets constitutes assets allocated to any separate account
maintained by you, (i) such separate account is a "pooled separate account"
within the meaning of Prohibited Transaction Class Exemption 90-1, in which
case you have disclosed to the Company the names of each employee benefit plan
whose assets in such separate account exceed 10% of the total assets or are
expected to exceed 10% of the total assets of such account as of the date of
such purchase (and for the purposes of this subdivision (b), all employee
benefit plans maintained by the same employer or employee organization are
deemed to be a single plan), or (ii) such separate account contains only the
assets of a specific employee benefit plan, complete and accurate information
as to the identity of which you have delivered to the Company in writing; or
(c) if you are a "qualified professional asset manager" or "QPAM" (as
defined in Part V of Prohibited Transaction Class Exemption 84-14, issued March
13, 1984 (the "QPAM Exemption")), all of such funds or other assets constitute
assets of an "investment fund" (as defined in Part V of the QPAM Exemption)
managed by you, no employee benefit plan assets which are included in such
investment fund, when combined with the assets of all other employee benefit
plans (i) established or maintained by the same employer or an affiliate of
such employer or by the same employee organization and (ii) managed by you,
exceed 20% of the total client assets managed by you, the conditions of Section
I(g) of the QPAM Exemption are satisfied and you have disclosed to the Company
the names of all employee benefit plans whose assets are included in such
investment fund; or
(d) if you are not an insurance company, all or a portion of such
funds or other assets consists of funds which do not constitute assets of any
employee benefit plan (other than a governmental plan exempt from the coverage
of ERISA) and the remaining portion, if any, of such funds consists of funds
which may be deemed to constitute assets of one or more specific employee
benefit plans, complete and accurate information as to the identity of each of
which you have delivered to the Company in writing.
As used in this SECTION 6.2, the terms "employee benefit plan," "governmental
plan" and "separate account" shall have the respective meanings assigned to
such terms in Section 3 of ERISA.
Section 6.3. Status of Purchaser. You represent that you are one of the
following: (i) a "bank" as defined in Section 3(a)(2) of the Securities Act;
(ii) an "insurance company" as defined in Section 2(13) of the Securities Act;
(iii) an investment company registered under the Investment Company Act of
1940, as amended; (iv) a corporation or a Massachusetts or similar business
trust that was not formed for the specific purpose of acquiring the Notes, with
total assets in excess of $5,000,000; or (v) an employee benefit plan within
the meaning of Title 1 of ERISA with total assets in excess of $5,000,000.
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ARTICLE VII
ACCOUNTING; FINANCIAL STATEMENTS AND OTHER INFORMATION
The Company will maintain, and will cause each of its Subsidiaries to
maintain, a system of accounting established and administered in accordance
with GAAP, and will accrue, and will cause each of its Subsidiaries to accrue,
all such liabilities as shall be required by GAAP. The Company will deliver to
you, so long as you or your nominee shall be the holder of any Notes, and to
each other Institutional Investor holding any Notes:
(a) as soon as practicable, but in any event within 45 days
after the end of each of the first three quarterly fiscal periods in each
fiscal year of the Company, consolidated and consolidating balance sheets
of the Company and its Subsidiaries (except, as to consolidating balance
sheets only, for inactive Subsidiaries) as at the end of such period and
the related consolidated (and, as to statements of income, consolidating,
except for inactive Subsidiaries) statements of income, partners' capital
and cash flows of the Company and its Subsidiaries for such period and
(in the case of the second and third quarterly periods) for the period
from the beginning of the current fiscal year to the end of such
quarterly period, setting forth in each case in comparative form the
consolidated and, where applicable, consolidating figures for the
corresponding periods of the previous fiscal year, all in reasonable
detail and certified by the principal financial officer of the General
Partner as presenting fairly, in all material respects, the information
contained therein (except for the absence of footnotes and subject to
changes resulting from normal year-end adjustments), in accordance with
GAAP;
(b) as soon as practicable, but in any event within 90 days
after the end of each fiscal year of the Company, consolidated and
consolidating balance sheets of the Company and its Subsidiaries (except,
as to consolidating balance sheets only, for inactive Subsidiaries) as at
the end of such year and the related consolidated (and, as to statements
of income, consolidating, except for inactive Subsidiaries) statements of
income, partners' capital and cash flows of the Company and its
Subsidiaries for such fiscal year, setting forth in each case in
comparative form the consolidated and, where applicable, consolidating
figures for the previous fiscal year, all in reasonable detail and (i) in
the case of such consolidated financial statements, accompanied by a
report thereon of Arthur Andersen or other independent public accountants
of recognized national standing selected by the Company, which report
shall state that such consolidated financial statements present fairly,
in all material respects, the financial position of the Company and its
Subsidiaries as at the dates indicated and the results of their
operations and cash flows for the periods indicated in conformity with
GAAP and that the audit by such accountants in connection with such
consolidated financial statements has been made in accordance with
generally accepted auditing standards then in effect in the United States
of America, and, (ii) in the case of such consolidated and consolidating
financial statements certified by the principal financial officer of the
General Partner as presenting fairly, in all material respects, the
information contained therein (except, in the
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case of such consolidating financial statements, for the absence of
footnotes), in accordance with GAAP;
(c) together with each delivery of financial statements of the
Company pursuant to subdivisions (a) and (b) of this ARTICLE VII, an
Officers' Certificate of the Company (i) stating that the signers have
reviewed the terms of this Agreement and the other Financing Documents,
and have made, or caused to be made under their supervision, a review in
reasonable detail of the transactions and condition of the Company and
its Subsidiaries during the accounting period covered by such financial
statements, and that the signers do not have knowledge of the existence
and continuance as at the date of such Officers' Certificate of any
Default or Event of Default, or, if any of the signers have knowledge
that any such Default or Event of Default then exists, specifying the
nature and approximate period of existence thereof and what action the
Company has taken or is taking or proposes to take with respect thereto,
(ii) specifying the amount available at the end of such accounting period
for Restricted Payments in compliance with SECTION 10.4 and showing in
reasonable detail all calculations required in arriving at such amount,
(iii) demonstrating in reasonable detail compliance at the end of such
accounting period with the restrictions contained in SECTION 9.3
(calculation of any Excess Taking Proceeds), SECTION 10.1 (first
sentence), SECTIONS 10.1(b), (d), (e) and (f), SECTION 10.3(c), SECTION
10.3(h), SECTION 10.4, SECTION 10.7(a)(ii), SECTION 10.7(a)(iii), SECTION
10.7(c)(ii) (calculation of any Excess Sale Proceeds) and SECTION 10.19,
(iv) if not specified in the related financial statements being delivered
pursuant to subdivisions (a) and (b) above, specifying the aggregate
amount of interest paid or accrued by, and aggregate rental expenses of,
the Company and its Subsidiaries, and the aggregate amount of
depreciation, depletion and amortization charged on the books of the
Company and its Subsidiaries, during the fiscal period covered by such
financial statements, and (v) if at the time of the delivery of such
financial statements the Company shall have any Unrestricted
Subsidiaries, setting forth therein (or in an accompanying schedule) the
adjustments required to be made to indicate the consolidated financial
position, cash flows and results of operations of the Company and the
Restricted Subsidiaries without regard to the financial position, cash
flows or results of operations of such Unrestricted Subsidiaries;
(d) together with each delivery of consolidated financial
statements of the Company pursuant to subdivision (b) of this ARTICLE
VII, a written statement by the independent public accountants giving the
report thereon stating that they have reviewed the terms of this
Agreement and the Notes and that, in making the audit necessary for the
certification of such financial statements, they have obtained no
knowledge of the existence and continuance as at the date of such written
statement of any Default or Event of Default, or, if they have obtained
knowledge that any Default or Event of Default then exists, specifying,
to the extent possible, the nature and approximate period of the
existence thereof (such accountants, however, shall not be liable to
anyone by reason of their failure to obtain knowledge of any Default or
Event of Default which would not be disclosed in the course of an audit
conducted in accordance with generally accepted auditing standards then
in effect in the United States of America);
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(e) promptly following the receipt and timely review thereof by
the Company, copies of all reports submitted to the Company by
independent public accountants in connection with each special, annual or
interim audit of the books of the Company or any Subsidiary thereof made
by such accountants, including without limitation the comment letter
submitted by each such accountant to management in connection with their
annual audit;
(f) promptly upon their becoming publicly available, copies of
(i) all financial statements, reports, notices and proxy statements sent
or made available by the Company or the Public Partnership to any of its
security holders in compliance with the Exchange Act, or any comparable
Federal or state laws relating to the disclosure by any Person of
information to its security holders, (ii) all regular and periodic
reports and all registration statements and prospectuses filed by the
Company or the Public Partnership with any securities exchange or with
the Commission or any governmental authority succeeding to any of its
functions (other than registration statements on Form S-8 and Annual
Reports on Form 11-K), (iii) all press releases and other similar written
statements made available by the Company or the Public Partnership to the
public concerning material developments in the business of the Company or
the Public Partnership, as the case may be and (iv) all reports, notices
and other similar written statements sent or made available by the
Company or the Public Partnership to any holder of its Indebtedness
pursuant to the terms of any agreement, indenture or other instrument
evidencing such Indebtedness, including without limitation the Credit
Agreement and the Public Partnership Indenture, except to the extent the
same substantive information is already being sent to you or such
Institutional Investor, as the case may be;
(g) as soon as reasonably practicable, and in any event within
five Business Days after a Responsible Officer obtains knowledge that any
Default or Event of Default has occurred, a written statement of such
Responsible Officer setting forth details of such Default or Event of
Default and the action which the Company has taken, is taking and
proposes to take with respect thereto;
(h) as soon as reasonably practicable, and in any event within
five Business Days after a Responsible Officer obtains knowledge of (i)
the occurrence of an adverse development with respect to any litigation
or proceeding involving the Company or any of its Subsidiaries which in
the reasonable judgment of the Company presents a reasonable likelihood
of having a Material Adverse Effect or (ii) the commencement of any
litigation or proceeding involving the Company or any of its Subsidiaries
which in the reasonable judgment of the Company presents a reasonable
likelihood of having a Material Adverse Effect, a written notice of such
Responsible Officer describing in reasonable detail such commencement of,
or adverse development with respect to, such litigation or proceeding;
(i) as soon as reasonably practicable, and in any event within
five Business Days after a Responsible Officer obtains knowledge that any
of the events or conditions specified below with respect to any Plan has
occurred or exists, or is expected to occur or exist, and that such event
or condition has resulted, or in the opinion of the principal
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financial officer of the General Partner, is expected to result, in a
Material Adverse Effect, a statement setting forth details respecting
such event or condition and the action, if any, that the Company or any
Related Person has taken, is taking or proposes to take or cause to be
taken with respect thereto (and a copy of any notice, report or other
written communication filed with or given to or received from the PBGC,
the Internal Revenue Service or the Department of Labor with respect to
such event or condition):
(i) any reportable event, as defined in Section 4043(b)
of ERISA and the regulations issued thereunder;
(ii) the filing under Section 4041 of ERISA of a notice
of intent to terminate any Plan or the termination of any Plan;
(iii) a substantial cessation of operations within the
meaning of Section 4062(e) of ERISA under circumstances which
could result in the treatment of the Company or any Related Person
as a substantial employer under a "multiple employer plan" or the
application of the provisions of Section 4062, 4063 or 4064 of
ERISA to the Company or any Related Person;
(iv) the institution by the PBGC of proceedings under
Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Plan, or the receipt by the
Company or any Related Person of a notice from a Multiemployer
Plan that such action has been taken by the PBGC with respect to
such Multiemployer Plan;
(v) the complete or partial withdrawal by the Company or
any Related Person under Section 4063, 4203 or 4205 of ERISA from
a Plan which is a "multiple employer plan" or a Multiemployer
Plan, or the receipt by the Company or any Related Person of
notice from a Multiemployer Plan that it intends to impose
withdrawal liability on the Company or any Related Person or that
it is in reorganization or is insolvent within the meaning of
Section 4241 or 4245 of ERISA or that it intends to terminate
under Section 4041A of ERISA or from a "multiple employer plan"
that it intends to terminate;
(vi) the institution of a proceeding against the Company
or any Related Person to enforce Section 515 of ERISA;
(vii) the occurrence or existence of any event or series
of events which could be expected to result in a liability to the
Company or any Related Person pursuant to Section 4069(a) or
4212(c) of ERISA;
(viii) the failure to make a contribution to any Plan,
which failure, either alone or when taken together with any other
such failure, is sufficient to result in the imposition of a lien
on any property of the Company or any Related Person pursuant to
Section 302(f) of ERISA or Section 412(n) of the Code;
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(ix) the amendment of any Plan in a manner which would be
treated as a termination of such Plan under Section 4041(e) of
ERISA or require the Company or any Related Person to provide
security to such Plan pursuant to Section 307 of ERISA or Section
401(a)(29) of the Code; or
(x) the incurrence of liability in connection with the
occurrence of a "prohibited transaction" (within the meaning of
Section 406 of ERISA or Section 4975 of the Code);
(j) as soon as reasonably practicable, and in any event within
five Business Days after a Responsible Officer obtains knowledge of a
violation or alleged violation of any Environmental Law or the presence
or release of any Hazardous Substance within, on, from, relating to or
affecting any property, which in the reasonable judgment of the Company
presents a reasonable likelihood of having a Material Adverse Effect,
notice thereof, and upon request, copies of relevant documentation,
provided, however, no such notice is required with respect to matters for
which notice has previously been provided pursuant to this SECTION 7(j);
(k) within 15 days after being approved by the governing body
of the Company, an annual operating forecast for each fiscal year;
(l) as soon as reasonably practicable, and in any event within
five Business Days after a Responsible Officer obtains knowledge that the
holder of any Note has given any notice to the Company or any Subsidiary
thereof or taken any other action with respect to a claimed Default or
Event of Default under this Agreement or any Other Agreements, or that
any Person has given any notice to the Company or any such Subsidiary or
taken any other action with respect to a claimed default or event or
condition of the type referred to in SECTION 11(f), a written statement
of such Responsible Officer describing such notice or other action in
reasonable detail and the action which the Company has taken, is taking
and proposes to take with respect thereto; and
(m) with reasonable promptness, such other information and data
(financial or other) with respect to the Company or any of its
Subsidiaries as from time to time may be reasonably requested.
ARTICLE VIII
INSPECTION; CONFIDENTIALITY
Section 8.1. Inspection. Each Obligor will permit any authorized
representatives designated by any Significant Holder:
(a) No Default - if no Default or Event of Default then exists,
at the expense of such Significant Holder (but excluding any fees or
expenses incurred by any Obligor or any Subsidiary thereof), (i) to visit
the principal executive offices of any Obligor and
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any Subsidiary thereof and to discuss the affairs, finances and accounts
of any Obligor and any Subsidiary thereof with any of the Obligor's
officers and, with the consent of such Obligor (which consent will not be
unreasonably withheld), the independent public accountants of such
Obligor (provided that such Obligor shall be entitled to be present), and
(ii) with the consent of such Obligor (which consent will not be
unreasonably withheld), to visit and visually inspect any of the
properties of any Obligor and any Subsidiary thereof, all upon at least
three Business Days' prior notice and otherwise at such reasonable times
and intervals as may be reasonably requested by such Significant Holder.
(b) Default - if any Default or Event of Default then exists,
at the expense of the Company, to visit and visually inspect any of the
offices or properties of any Obligor and any Subsidiary thereof,
including the books of account, records, reports and other papers of the
Obligors and their Subsidiaries, and to examine, copy and take extracts
therefrom, and to discuss the affairs, finances and accounts of the
Obligors and their respective Subsidiaries with their officers and
independent public accountants (and by this provision the Obligors
authorize such accountants to discuss with such representatives such
affairs, finances and accounts, provided that the Obligors shall be
entitled to be present), all at such times and location and as often as
may be reasonably requested by such Significant Holder.
Section 8.2. Confidentiality. For the purposes of this SECTION 8.2,
"Confidential Information" means information delivered to you by or on behalf
of any Obligor or any Subsidiary thereof in connection with the transactions
contemplated by or otherwise pursuant to this Agreement that is proprietary in
nature and that was clearly marked or labeled or otherwise adequately
identified when received by you as being confidential information of any
Obligor or such Subsidiary, provided that such term does not include
information that (a) was publicly known or otherwise known to you prior to the
time of such disclosure, (b) subsequently becomes publicly known through no act
or omission by you or any Person acting on your behalf, (c) otherwise becomes
known to you other than through disclosure by any Obligor or any Subsidiary
thereof, or by any holder of a Note or any Person acting on such holder's
behalf (and known by you to be so acting), or (d) constitutes financial
statements delivered to you under ARTICLE VII that are otherwise publicly
available. You will maintain the confidentiality of such Confidential
Information in accordance with procedures adopted by you in good faith to
protect confidential information of third parties delivered to you, provided
that you may deliver or disclose Confidential Information to (i) your
directors, trustees, officers, employees, authorized representatives, agents,
attorneys and Affiliates who agree to hold confidential the Confidential
Information substantially in accordance with the terms of this SECTION 8.2,
(ii) your financial advisors, authorized representatives, and other
professional advisors who agree to hold confidential the Confidential
Information substantially in accordance with the terms of this SECTION 8.2,
(iii) any other holder of a Note, (iv) any Institutional Investor to which you
sell or offer to sell such Note or any part thereof or any participation
therein (if such Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of this SECTION 8.2),
(v) any Person from which you offer to purchase any security of the Obligors
(if such Person has agreed in writing prior to its receipt of such Confidential
Information to be bound by the provisions of this SECTION 8.2), (vi) any
federal or state regulatory authority having
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jurisdiction over you, (vii) the National Association of Insurance
Commissioners or any similar organization, or any nationally recognized rating
agency that requires access to information about your investment portfolio or
(viii) any other Person to which such delivery or disclosure may be necessary
(w) to effect compliance with any law, rule, regulation or order applicable to
you, (x) in response to any subpoena or other legal process, (y) in connection
with any litigation to which you are a party or (z) if any Default or Event of
Default exists, to the extent you may reasonably determine such delivery and
disclosure to be necessary or appropriate in the enforcement or for the
protection of the rights and remedies under your Notes, this Agreement or any
other Financing Document. Each holder of a Note, by its acceptance of a Note,
will be deemed to have agreed to be bound by and to be entitled to the benefits
of this SECTION 8.2 as though it were a party to this Agreement. On reasonable
request by the Obligors in connection with the delivery to any holder of a Note
of information required to be delivered to such holder under this Agreement or
requested by such holder (other than a holder that is a party to this Agreement
or its nominee), such holder will enter into an agreement with the Obligors
embodying the provisions of this SECTION 8.2.
ARTICLE IX
PREPAYMENT OF NOTES
Section 9.1. No Required Prepayments of the Notes. No regularly
scheduled prepayment of the principal of the Notes is required prior to their
date of maturity.
Section 9.2. Optional Prepayments of the Notes with Make Whole Amount.
The Notes shall be subject to prepayment, in whole at any time or from time to
time in part, at the option of the Obligors, upon notice as provided in SECTION
9.5, at 100% of the principal amount of the Notes so prepaid plus interest
thereon to the prepayment date and the Make Whole Amount, if any. Each partial
prepayment of Notes shall be in multiples of $1,000,000.
Section 9.3. Contingent Prepayments on Disposition of Assets;
Prepayments on Taking or Destruction. (a) If at any time the Company and its
Restricted Subsidiaries dispose of assets with the result that there are Excess
Sale Proceeds, and the Company does not apply such Excess Sale Proceeds in the
manner described in SECTION 10.7(c)(ii)(B)(x), the Company will offer to
prepay, upon notice as provided in SECTION 9.4, a principal amount of the
outstanding Notes equal to the Allocable Excess Proceeds.
(b) In the event that damage, destruction or a taking shall occur in
respect of all or a portion of the properties or assets of the Company or its
Restricted Subsidiaries, and in connection therewith the Company shall, in
accordance with the Intercreditor Agreement and the Mortgages, elect to apply
any insurance or condemnation proceeds in respect thereof to the prepayment of
the Notes and any Parity Debt and not to the restoration or modification of
such properties or assets (it being understood that, notwithstanding anything
in the Security Documents to the contrary, neither the Company nor any such
Restricted Subsidiary shall be obligated to repair, restore or modify such
properties or assets if it elects to include such proceeds in the calculation
of Excess Taking Proceeds) and the total amount of insurance and
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condemnation proceeds exceeds $10,000,000 for the current fiscal year (the
"Excess Taking Proceeds," and collectively with the Excess Sale Proceeds, the
"Excess Proceeds"), the Company will offer to prepay (or cause to be prepaid by
the Collateral Agent out of the funds held by the Collateral Agent under the
Intercreditor Agreement for such purpose), upon notice as provided in SECTION
9.4, a principal amount of the outstanding Notes equal to the Allocable Excess
Proceeds.
(c) Each prepayment of Notes pursuant to this SECTION 9.3 shall be
made at 100% of the principal amount of the Notes to be prepaid, plus interest
thereon to the prepayment date plus the Make Whole Amount, if any, thereon.
Section 9.4. Prepayment Procedure for Excess Sale Proceeds and Excess
Taking Proceeds. (a) If at any time there are Excess Sale Proceeds during any
fiscal year resulting from an Asset Sale or there are Excess Taking Proceeds
during any fiscal year resulting from damage to, or the destruction or taking
of, any of the properties or assets of the Company or its Restricted
Subsidiaries and the Company is required to offer to prepay Notes with such
Excess Proceeds pursuant to SECTION 9.3, the Company will give written notice
(which shall be in the form of an Officers' Certificate) to the holders of the
Notes not later than 360 days after the date of such Asset Sale or 10 days
after the receipt of the Excess Taking Proceeds, as the case may be, (x)
setting forth in reasonable detail all calculations required to determine the
amount of Excess Proceeds, (y) setting forth the amount of the Allocable Excess
Proceeds and the amount of the Allocable Excess Proceeds which is allocable to
each Note, determined by allocating the Allocable Excess Proceeds pro rata
among all Notes outstanding on the date such prepayment is to be made according
to the aggregate then unpaid principal amounts of the Notes, and in reasonable
detail the calculations used in determining such amounts, and (z) stating that
the Company irrevocably offers to prepay on the date specified in such notice,
which shall not be less than 30 nor more than 45 days after the date of such
notice, a principal amount of each outstanding Note equal to the amount of
Allocable Excess Proceeds allocated to such Note as described in clause (y)
above, plus such Note's share of the Allocable Excess Proceeds allocable to any
other Note the holder of which does not on a timely basis accept the Company's
offer (collectively, the "Non-Accepting Holders"), all in accordance with the
procedures set forth in this SECTION 9.4.
(b) Each holder of a Note wishing to accept the Company's offer with
respect to prepayment of such Note to the extent of its Allocable Excess
Proceeds (collectively, the "Accepting Holders") shall do so by notice
delivered to the Company at least 10 days prior to the date of prepayment
specified in the notice given by the Company pursuant to subdivision (a) of
this SECTION 9.4 and may include in such acceptance an agreement (the "Pro Rata
Option") to have prepaid, in addition to the Allocable Excess Proceeds
allocable to such Note (up to the total Allocable Excess Proceeds), all or any
part of the balance of the principal amount of such Note, specifying the
maximum principal amount of such Note which such Accepting Holder is willing to
have prepaid.
(c) Upon receipt of all timely acceptances from Accepting Holders
pursuant to subdivision (b) of this SECTION 9.4, the Company shall give written
notice (which shall be in the form of an Officers' Certificate) to the holders
of the Notes setting forth (w) the names of each
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such Accepting Holder, (x) the principal amounts of the Notes as to which such
Accepting Holders shall have accepted the Company's offer of prepayment, (y) if
there shall be any Allocable Excess Proceeds remaining in addition to the
amounts so to be prepaid, the principal amounts of the Notes as to which such
Accepting Holders shall have exercised their Pro Rata Options together with a
calculation of each Accepting Holder's Pro Rata Option in accordance with
subdivision (d) of this SECTION 9.4 and (z) after giving effect to the
prepayment contemplated by subdivision (e) below in respect of such offer, the
reduced amount becoming due with respect to each of the Notes upon the maturity
thereof, specifying how each such amount was determined, and certifying that
such reduction has been computed in accordance with such Section.
(d) Upon receipt of all timely acceptances from Accepting Holders
pursuant to subdivision (b) of this SECTION 9.4, the Company shall allocate
that portion of the Allocable Excess Proceeds that had been allocated to the
Notes of Non-Accepting Holders among the Notes of Accepting Holders in
proportion to the respective Allocable Excess Proceeds allocable to the Notes
of Accepting Holders (after giving effect to any Pro Rata Option). Where the
portion of the Allocable Excess Proceeds thus allocated to the Note of an
Accepting Holder would exceed the maximum principal amount of such Note which
such Accepting Holder has agreed to have prepaid (including without limitation
pursuant to a Pro Rata Option), such excess shall be allocated among the Notes
of Accepting Holders who have agreed to accept prepayments (including without
limitation pursuant to a Pro Rata Option) in amounts which still exceed the
amount of prepayments previously allocated to them pursuant to this SECTION 9.4
in proportion to the respective Allocable Excess Proceeds allocable to the
Notes of such Accepting Holders (after giving effect to any Pro Rata Option);
and such allocation shall be repeated as many times as shall be necessary until
(i) the Allocable Excess Proceeds have been fully allocated or (ii) it is no
longer possible to allocate the Allocable Excess Proceeds without exceeding the
maximum principal amounts of Notes which all Accepting Holders respectively
have agreed to have prepaid (including without limitation pursuant to all the
Pro Rata Options).
(e) The principal amount of any Notes with respect to which an offer
to prepay pursuant to this SECTION 9.4 has been accepted shall become due and
payable on the date specified in the notice of such offer given by the Company
pursuant to subdivision (a) of this SECTION 9.4. Each holder of any such Note
shall receive, on the Business Day immediately preceding the date scheduled for
such prepayment, an Officers' Certificate setting forth the calculations used
in computing the amount of the prepayment in respect of such Note. It is
understood that the Allocable Excess Proceeds which shall remain unallocated to
the Notes under clause (ii) of subdivision (d) of this SECTION 9.4 shall
constitute cash receipts of the Company for purposes of the definition of
"Available Cash."
Section 9.5. Notice of Optional Prepayments; Officers' Certificate. The
Company will give each holder of any Notes irrevocable written notice of each
optional prepayment under SECTION 9.2 not less than 20 days and not more than
45 days prior to the date fixed for such prepayment, in each case specifying
(i) such prepayment date, (ii) the aggregate principal amount of the Notes to
be prepaid, (iii) the principal amount of each Note held by such holder to be
prepaid and (iv) a calculation of the estimated Make Whole Amount. Notice of
prepayment having been given as aforesaid, the principal amount of the Notes
specified in such notice,
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together with interest thereon to the prepayment date and together with the
Make Whole Amount with respect thereto, shall become due and payable on such
prepayment date. Each holder of a Note shall receive, on the Business Day
immediately preceding the date scheduled for any such prepayment, an Officers'
Certificate (a) certifying that the conditions of SECTION 9.2 have been
fulfilled and specifying the particulars, including without limitation a
calculation of the Make Whole Amount, of such fulfillment and (b) in the case
of any such prepayment that is a partial prepayment of the Notes setting forth
(i) the principal amount to be prepaid with respect to each of the Notes and
specifying how each such amount was determined, and (ii) after giving effect to
such partial prepayment, the reduced amount becoming due with respect to the
Notes upon the maturity thereof, specifying how each such amount was
determined, and certifying that such reduction has been computed in accordance
with such Section.
Section 9.6. Allocation of Partial Prepayments. Upon any partial
prepayment of the Notes pursuant to SECTION 9.2, the principal amount so
prepaid shall be allocated to all Notes at the time outstanding pursuant to
SECTION 9.2 in proportion to the respective outstanding principal amounts
thereof not theretofore prepaid.
Section 9.7. Maturity; Surrender, etc. In the case of each prepayment,
the principal amount to be prepaid of each Note shall mature and become due and
payable on the date fixed for such prepayment, together with interest on such
principal amount accrued to such date and the applicable Make Whole Amount, if
any. From and after such date, unless the Obligors shall fail to pay such
principal amount when so due and payable, together with the required interest
and Make Whole Amount, if any, as aforesaid, interest on such principal amount
shall cease to accrue. Any Note paid or prepaid in full shall, after such
payment or prepayment in full, be surrendered to the Company and cancelled and
shall not be reissued, and no Note shall be issued in lieu of any prepaid
principal amount of any Note (it being understood that nothing in this SECTION
9.7 shall be deemed to prohibit or limit any extension, renewal, refunding or
refinancing otherwise permitted by SECTION 10.1 of Indebtedness evidenced by
the Notes).
Section 9.8. Acquisition of Notes. The Obligors shall not, and shall not
permit any of their Subsidiaries or Affiliates to, prepay or otherwise retire
in whole or in part prior to their stated final maturity (other than by
prepayment pursuant to SECTION 9.2 or 9.3, by purchase pursuant to SECTION 9.9
or upon acceleration of such final maturity pursuant to ARTICLE XI), or
purchase or otherwise acquire, directly or indirectly, Notes held by any
holder, unless such Obligor or such Subsidiary or Affiliate shall have offered
to prepay or otherwise retire or purchase or otherwise acquire, as the case may
be, the same proportion of the aggregate principal amount of Notes held by each
other holder of Notes at the time outstanding, upon substantially equivalent
terms and conditions; provided, however, that no Obligors nor any of their
Affiliates or Subsidiaries shall make any such offer (a "Note Offer") to
prepay, redeem, retire, purchase or acquire at a price of less than 100% of the
principal amount thereof to the extent that after giving effect to such Note
Offer (if accepted) the sum of such Note Offer and all other similar prior Note
Offers at prices less than 100% of the principal amount thereof which have been
accepted and all Public Partnership Expenditures pursuant to SECTION 10.22(c)
shall exceed $103,600,000. Any Notes prepaid or otherwise retired or purchased
or otherwise acquired by the Obligors or any of their Subsidiaries or
Affiliates shall not be deemed to be outstanding for any purpose under this
Agreement.
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Section 9.9. Change of Control. (a) At any time after the occurrence of
a Purchase Event and prior to the expiration of the later of (i) 90 days after
receipt of an Event Notice relating thereto and (ii) if any Other Holder Notice
is given prior to the expiration of such 90-day period, 30 days after receipt
of the initial Other Holder Notice, any holder of a Note may deliver a notice
(a "Purchase Notice") to the Company (x) stating that it is electing to
exercise its right to require the purchase by the Company pursuant to this
SECTION 9.9 of any or all of the Notes then held by it and (y) specifying the
period (which shall be at least 5 Business Days) during which such purchase
shall occur (which period shall commence not earlier than 5 Business Days after
the date on which such holder shall have delivered such Purchase Notice to the
Company), and in any such event the Company, on a date in such period specified
by the Company (which shall be the first Business Day therein if the Company
shall not specify another date), shall purchase the Note or Notes then held by
such holder (or portion thereof) specified in such Purchase Notice, without
recourse, representation or warranty (other than a statement as to the holder's
full right, title and interest free of any Lien or adverse claim in such Note
or Notes and the holder's authority to sell such Note or Notes), and such
holder shall sell such Note or Notes (or such specified portion thereof) to the
Company at a price, payable in immediately available funds by wire transfer to
the accounts specified in SCHEDULE II or to such other account as may be
specified in such Purchase Notice, equal to the then outstanding principal
amount thereof, together with interest on such principal amount to the date of
purchase, but without premium. In the event the Company shall be in receipt of
a Purchase Notice from more than one holder of Notes, without having
effectuated the purchase of Notes required by any such Purchase Notice,
specifying purchase periods with an overlapping day or days, it shall purchase
the Notes relating to such Purchase Notices simultaneously on the earliest
overlapping date specified in such Purchase Notices.
(b) Promptly, and in any event within 5 Business Days following its
receipt thereof and at least 4 Business Days prior to the date on which the
Company intends to purchase any Notes pursuant to subdivision (a) above (the
"Purchase Date") pursuant thereto, the Company will deliver to each holder of a
Note a copy of each Purchase Notice received by it pursuant to subdivision (a)
above (an "Other Holder Notice").
(c) The Company covenants that it will deliver to each holder of a
Note promptly, and in any event within 5 Business Days following the occurrence
thereof, a notice (which shall be in the form of an Officers' Certificate) of
the occurrence of a Purchase Event, together with a statement of the date of
occurrence of such Purchase Event and a reasonably detailed description of the
facts and circumstances underlying such occurrence known to it, and which
states that the Company is obligated, upon receipt of a Purchase Notice
described in subdivision (a) of this SECTION 9.9, to purchase Notes pursuant to
such subdivision (a) (an "Event Notice"). The Company will, to the extent that
the information is publicly available, give prompt notice to the holders of the
Notes of an impending or potential Purchase Event and, in the event that such
information is publicly available prior to the occurrence of such Purchase
Event, will make such arrangements so that the holders of the Notes may require
the purchase of their Notes by the Company pursuant to the provisions of this
SECTION 9.9 concurrently with the occurrence of such Purchase Event. Any holder
may deliver a Purchase Notice in response to a notice given by the Company
pursuant to the provisions of the immediately preceding sentence even though
such Purchase Notice precedes the Purchase Event and such a Purchase Notice
shall be deemed to be a
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Purchase Notice for all purposes of this SECTION 9.9, but the Company's
obligation to purchase Notes pursuant to such Purchase Notice shall be subject
to the occurrence of such Purchase Event.
(d) Any holder of Notes at any time by notice in writing to the
Company may relinquish (subject to the following proviso) such holder's right
(but not the right of any subsequent holder of Notes) to request the purchase
of its Notes in the case of a Purchase Event pursuant to the provisions of
subdivision (a) of this SECTION 9.9, in whole or in part, provided that such
relinquishment shall automatically become ineffective in respect of a Purchase
Event upon receipt by the Company of a Purchase Notice with respect to such
SECTION 9.9 from any other holder of Notes which has not relinquished such
right. Notwithstanding any such relinquishment by any holder, the Company will
deliver to such holder all notices and communications required to be given
hereunder relating to any potential or actual Purchase Event.
ARTICLE X
BUSINESS AND FINANCIAL COVENANTS OF THE OBLIGORS
So long as any of the Notes are outstanding the Company covenants that
it will perform and comply with the terms and provisions of SECTIONS 10.1
through 10.21 set forth below and the General Partner covenants that it will
perform and comply with the terms and provisions of SECTION 10.22 set forth
below.
Section 10.1. Indebtedness. The Company will not permit the ratio of
Total Debt of the Company and its Restricted Subsidiaries to EBITDA as at any
fiscal quarter end to exceed 5.25 to 1.00. For purposes of determining
compliance with the ratio of Total Debt to EBITDA, as set forth above, (A)
EBITDA shall be determined as at the end of each fiscal quarter for (I) the
four fiscal quarters then ended or (II) the eight fiscal quarters then ended
and divided by 2, whichever is greater, and (B) Total Debt shall be determined
as at the end of each fiscal quarter. In addition, the Company will not, and
will not permit any Restricted Subsidiary to, create, incur, assume or
otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness, except that:
(a) the Company may become and remain liable with respect to
the Indebtedness evidenced by the Notes, the 1999 Notes and the 1995
Notes and Funded Debt incurred in connection with any extension, renewal,
refunding or refinancing of Indebtedness evidenced by the Notes, the 1999
Notes and the 1995 Notes or other Parity Debt incurred in accordance with
SECTION 10.1(f) and 10.2(m), provided that the principal amount of such
Funded Debt shall not exceed the principal amount of such Indebtedness
evidenced by the Notes, the 1999 Notes and the 1995 Notes or other Parity
Debt incurred in accordance with SECTION 10.1(f) and 10.2(m), as the case
may be, together with any accrued interest and Make Whole Amount with
respect thereto, being extended, renewed, refunded or refinanced;
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(b) the Company may become and remain liable with respect to
Indebtedness incurred by the Company (i) to finance the making of
expenditures for the improvement or repair (to the extent such
improvements and repairs may be capitalized on the books of the Company
in accordance with GAAP) of or additions (including additions by way of
acquisitions or capital contributions of businesses and related assets)
to the General Collateral, or (ii) by assumption in connection with
additions (including additions by way of acquisitions or capital
contributions of businesses and related assets) to the General
Collateral, including without limitation borrowings under the Acquisition
Facility, or to extend, renew, refund or refinance any such Indebtedness,
provided that the aggregate principal amount of Indebtedness incurred
under this SECTION 10.1(b) and outstanding at any time shall not exceed
the sum of (1) $75,000,000 plus (2) an amount equal to the aggregate net
cash proceeds received by the Company from time to time as a capital
contribution or as consideration for the issuance by the Company of
additional partnership interests, in each case for the sole purpose of
financing such expenditures;
(c) subject to SECTION 10.3(c) any Restricted Subsidiary may
become and remain liable with respect to Indebtedness of such Restricted
Subsidiary owing to the Company or to a Wholly-Owned Restricted
Subsidiary, and the Company may become and remain liable with respect to
Indebtedness owing to a Wholly-Owned Restricted Subsidiary provided it is
subordinated to the Notes and to Parity Debt at least to the extent
provided in the subordination provisions set forth in EXHIBIT J;
(d) the Company may become and remain liable with respect to
unsecured Indebtedness of the Company owing to the General Partner or an
Affiliate of the General Partner, provided that (i) the aggregate
principal amount of such Indebtedness outstanding at any time shall not
be in excess of $50,000,000 and (ii) such Indebtedness is created and is
outstanding under an agreement or instrument pursuant to which such
Indebtedness is subordinated to the Notes and to Parity Debt at least to
the extent provided in the subordination provisions set forth in EXHIBIT
J;
(e) the Company may become and remain liable with respect to
Indebtedness incurred for any purpose permitted by the Revolving Credit
Facility, and any Indebtedness incurred for any such permitted purpose
which replaces, extends, renews, refunds or refinances any such
Indebtedness, in whole or in part, in an aggregate principal amount at
any time not in excess of $175,000,000 less the aggregate principal
amount outstanding under the Acquisition Facility;
(f) the Company or, following the date of the release or
discharge of the Liens of the Security Documents pursuant to SECTION 1.3,
any Restricted Subsidiary may become and remain liable with respect to
Indebtedness, in addition to that otherwise permitted by the foregoing
subdivisions of this SECTION 10.1, if on the date the Company or
Restricted Subsidiary, as applicable, 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
(i) the ratio of Consolidated Cash Flow to Consolidated Pro Forma Debt
Service is equal to or greater than 2.50 to 1.0, (ii) the ratio of
Consolidated Cash Flow to Average Consolidated Pro Forma Debt Service is
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equal to or greater than 1.25 to 1.0 and (iii) if (A) such Indebtedness
is created or incurred after the date of the release or discharge of the
Liens of the Security Documents pursuant to SECTION 1.3 and (B) such
Indebtedness (I) is to be secured by Liens created or incurred within the
limitations of SECTION 10.2(s) or (II) is to be created or incurred by
any Restricted Subsidiary, then the sum of the aggregate amount of the
Indebtedness secured by Liens created or incurred within the limitations
of SECTION 10.2(s) plus the aggregate amount of Indebtedness of
Restricted Subsidiaries (including in any such case Indebtedness then to
be created or incurred) would not exceed 15% of the Total Assets as
determined on the date of such incurrence, provided that any such
Indebtedness created or incurred within the limitations of this SECTION
10.1(f) may be extended, renewed, refunded or refinanced so long as the
principal amount of such Indebtedness shall not exceed the principal
amount of such Indebtedness outstanding immediately prior to such renewal
or extension and if such Indebtedness is secured, then the Lien securing
such Indebtedness shall be incurred within the limitations of SECTION
10.2;
(g) the Company and the Restricted Subsidiaries may become and
remain liable with respect to the Indebtedness represented by the
Subsidiary Guarantee and the Indebtedness described on SCHEDULE 5.7
provided that, except as otherwise indicated in SCHEDULE 5.7, all such
Indebtedness shall be paid in full, or payment thereof in full shall be
irrevocably set aside in an account against which the Company has no
rights or claims, at the time of the Closing;
(h) the Company may become and remain liable with respect to
obligations under Interest Rate Agreements;
(i) any Person that after the date of Closing becomes a
Restricted Subsidiary may become and remain liable with respect to any
Indebtedness to the extent such Indebtedness existed at the time such
Person became a Subsidiary (and was not incurred in anticipation of such
Person becoming a Subsidiary); provided that immediately after giving
effect to such Person becoming a Restricted Subsidiary, the Company could
incur at least $1 of additional Indebtedness in compliance with clauses
(i) and (ii) of SECTION 10.1(f); and
(j) the Company and any Restricted Subsidiary may become and
remain liable with respect to Indebtedness relating to any business
acquired by or contributed to the Company or such Restricted Subsidiary
or which is secured by a Lien on any property or assets acquired by or
contributed to the Company or such Restricted Subsidiary to the extent
such Indebtedness existed at the time such business or property or assets
were so acquired or contributed (and was not incurred in anticipation
thereof) and if such Indebtedness is secured by such property or assets,
such security interest does not extend to or cover any other property of
the Company or any of the Restricted Subsidiaries; provided that
immediately after giving effect to such acquisition or contribution the
Company could incur at least $1 of additional Indebtedness in compliance
with clauses (i) and (ii) of SECTION 10.1(f).
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Section 10.2. Liens, etc. The Company will not, and will not permit any
Restricted Subsidiary to, directly or indirectly create, incur, assume or
permit to exist any Lien on or with respect to any property or asset (including
any document or instrument in respect of goods or accounts receivable) of the
Company or any Restricted Subsidiary, whether now owned or held or hereafter
acquired, or any income or profits therefrom (whether or not provision is made
for the equal and ratable securing of the Notes in accordance with the
provisions of SECTION 10.17), except:
(a) Liens for taxes, assessments or other governmental charges
the payment of which is not yet due and payable or which is being
contested in compliance with SECTION 10.9 hereof and Section 1.18 of the
Mortgages;
(b) Liens of lessors, landlords and carriers, vendors,
warehousemen, mechanics, materialmen, repairmen and other like Liens
incurred in the ordinary course of business for sums not yet due or the
payment of which is being contested in compliance with SECTION 10.9
hereof and Section 1.18 of the Mortgages, in each case (i) not incurred
or made in connection with the borrowing of money, the obtaining of
advances or credit or the payment of the deferred purchase price of
property or (ii) incurred in the ordinary course of business securing the
unpaid purchase price of property or services constituting current
accounts payable;
(c) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business (i) in connection with
workers' compensation, unemployment insurance and other types of social
security, or (ii) to secure (or to obtain letters of credit that secure)
the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, performance bonds, purchase, construction or sales
contracts and other similar obligations, in each case not incurred or
made in connection with the borrowing of money;
(d) other deposits made to secure liability to insurance carriers
under insurance or self-insurance arrangements;
(e) Liens securing reimbursement obligations under letters of
credit, provided in each case that such Liens cover only the title
documents and related goods (and any proceeds thereof) covered by the
related letter of credit;
(f) any attachment or judgment Lien, unless the judgment it
secures shall not, within 60 days after the entry thereof, have been
discharged or execution thereof stayed pending appeal, or shall not have
been discharged within 60 days after expiration of any such stay;
(g) leases or subleases granted to others, easements,
rights-of-way, restrictions and other similar charges or encumbrances,
which, in each case either (i) are granted, entered into or created in
the ordinary course of the business of the Company or any Restricted
Subsidiary or (ii) do not materially impair the value or intended use,
occupancy and operation of the property covered thereby;
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(h) Liens on property or assets of any Restricted Subsidiary
securing Indebtedness of such Restricted Subsidiary owing to the Company
or a Wholly-Owned Restricted Subsidiary;
(i) Liens existing on the Assets at the time of the acquisition
thereof by the Company and described in SCHEDULE 10.2;
(j) Liens created by any of the Security Documents securing
Indebtedness evidenced by the Notes, the 1999 Notes and the 1995 Notes or
other Parity Debt incurred in accordance with SECTION 10.1(f) and 10.2(m)
(or any extension, renewal, refunding, replacement or refinancing of any
such Indebtedness) in accordance with SECTION 10.1(a) during the period
prior to the date of the release or discharge of such Liens pursuant to
SECTION 1.3;
(k) Liens created by any of the Security Documents securing
Indebtedness incurred under the Acquisition Facility (or any extension,
renewal, refunding, replacement or refinancing of any such Indebtedness)
in accordance with SECTION 10.1(b) during the period prior to the date of
the release or discharge of such Liens pursuant to SECTION 1.3;
(l) Liens created by any of the Security Documents securing
Indebtedness or letter of credit obligations created under the Revolving
Credit Facility (or any extension, renewal, refunding, replacement or
refinancing of any such Indebtedness) in accordance with SECTION 10.1(e)
during the period prior to the date of the release or discharge of such
Liens pursuant to SECTION 1.3;
(m) Liens (other than the Liens referred to in clauses (j), (k)
or (l) above) securing Indebtedness incurred in accordance with SECTION
10.1(b) or 10.1(e) or, to the extent incurred (i) to repay Indebtedness
or letter of credit obligations incurred and outstanding under the
Acquisition Facility or the Revolving Credit Facility (or any extension,
renewal, refunding, replacement or refinancing of such Indebtedness),
(ii) to finance the making of expenditures for the improvement or repair
(to the extent such improvements and repairs may be capitalized on the
books of the Company and the Restricted Subsidiaries in accordance with
GAAP) of or additions (including additions by way of acquisitions or
capital contributions of businesses and related assets) to the General
Collateral, or (iii) by assumption in connection with additions
(including additions by way of acquisitions or capital contributions of
businesses and related assets) to the General Collateral, under SECTION
10.1(f)(i) and (ii), provided that (1) such Liens are effected through an
amendment to the Security Documents to the extent necessary to provide
the holders of such Indebtedness equal and ratable security in the
property and assets subject to the Security Documents with the holders of
the Notes and the other Indebtedness secured under the Security
Documents, (2) in the case of Indebtedness incurred in accordance with
SECTION 10.1(b) or 10.1(f)(i) and (ii) to finance the making of additions
to the General Collateral, the Company has delivered to the Collateral
Agent an Officers' Certificate demonstrating that the principal amount of
such Indebtedness (net of transaction costs funded by the proceeds of
such Indebtedness) does not exceed the lesser
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of the cost to the Company and the Restricted Subsidiaries of such
additional property or assets and the fair market value of such
additional property or assets at the time of the acquisition thereof (as
determined in good faith by the General Partner), and (3) the Company has
delivered to the Collateral Agent an opinion of counsel reasonably
satisfactory to the Collateral Agent with regard to the attachment and
perfection of the Lien of the Security Documents with respect to such
additional property and assets;
(n) Liens existing on any property of any Person at the time it
becomes a Subsidiary of the Company, or existing at the time of
acquisition upon any property acquired by the Company or any such
Subsidiary through purchase, merger or consolidation or otherwise,
whether or not assumed by the Company or such Subsidiary, or created to
secure Indebtedness incurred under SECTION 10.1(f) to pay all or any part
of the purchase price (a "Purchase Money Lien") of property (including
without limitation Capital Stock and other securities) acquired by the
Company or a Restricted Subsidiary, provided that (i) any such Lien shall
be confined solely to such item or items of property and, if required by
the terms of the instrument originally creating such Lien, other property
which is an improvement to or is acquired for use specifically in
connection with such acquired property, (ii) such item or items of
property so acquired are not required to become part of the General
Collateral under the terms of the Security Documents, (iii) in the case
of a Purchase Money Lien, the principal amount of the Indebtedness
secured by such Purchase Money Lien shall at no time exceed an amount
equal to the lesser of (A) the cost to the Company and the Restricted
Subsidiaries of such property and (B) the fair market value of such
property at the time of the acquisition thereof (as determined in good
faith by the General Partner), (iv) any such Purchase Money Lien shall be
created not later than 120 days after the acquisition of such property
and (v) any such Lien (other than a Purchase Money Lien) shall not have
been created or assumed in contemplation of such Person's becoming a
Subsidiary of the Company or such acquisition of property by the Company
or any Subsidiary;
(o) easements, exceptions or reservations in any property of
the Company or any Restricted Subsidiary granted or reserved for the
purpose of pipelines, roads, the removal of oil, gas, coal or other
minerals, and other like purposes, or for the joint or common use of real
property, facilities and equipment, which are incidental to, and do not
materially interfere with, the ordinary conduct of the business of the
Company or any Restricted Subsidiary;
(p) Liens arising from or constituting Permitted Encumbrances;
(q) any Lien renewing or extending any Lien permitted by
subdivision (h), (i), (m), (n), (r) or (s) of this SECTION 10.2, provided
that (i) the principal amount of the Indebtedness secured by any such
Lien shall not exceed the principal amount of such Indebtedness
outstanding immediately prior to the renewal or extension of such Lien
(together with, in the case of Indebtedness permitted by SECTION 10.1(a),
any accrued interest thereon and Make Whole Amount with respect thereto),
and (ii) no assets encumbered by any such Lien other than the assets
encumbered immediately prior to such renewal or extension shall be
encumbered thereby;
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(r) from and after the date of the discharge or release of
the Liens created by the Security Documents pursuant to SECTION
1.3, any Lien on the Inventory and/or Receivables (as each such
term is defined in the UCC) of the Company securing Indebtedness
from time to time outstanding pursuant to the Revolving Credit
Facility (or any extension, renewal, refunding, replacement or
refinancing of any such Indebtedness); provided that the maximum
amount of such Indebtedness secured by any Lien on such Inventory
and/or Receivables does not exceed $100,000,000 (notwithstanding
that the aggregate amount of Indebtedness outstanding under such
Revolving Credit Facility may exceed $100,000,000); and
(s) from and after the date of the release or discharge of
the Liens of the Security Documents pursuant to SECTION 1.3, any
Lien created or incurred to secure Indebtedness of the Company or
any Restricted Subsidiary, in addition to the Liens permitted by
the preceding clauses (a) through (r) of this SECTION 10.2;
provided that all Indebtedness secured by any such Lien shall have
been created or incurred pursuant to the exceptions set forth in
SECTION 10.1 and within the limitations provided in SECTION
10.1(f)(iii).
Section 10.3. Investments, Guaranties, etc. The Company will not, and
will not permit any Restricted Subsidiary to, directly or indirectly (i) make or
own any Investment in any Person (including an Investment in a Subsidiary of the
Company), (ii) create or become liable with respect to any Guaranty of any
Indebtedness of a Control Affiliate, or (iii) create or become liable with
respect to any Guaranty (provided, however, that nothing contained in this
SECTION 10.3, except clause (ii) above, is intended to limit the making of any
Guaranty which would be permitted as Indebtedness under SECTION 10.1), except:
(a) the Company or any Restricted Subsidiary may make and own
Investments in (collectively, "Cash Equivalents")
(1) marketable obligations issued or unconditionally
guaranteed by the United States of America, or issued by any agency
thereof and backed by the full faith and credit of the United States of
America, in each case maturing one year or less from the date of
acquisition thereof,
(2) marketable direct obligations issued by any state of
the United States of America or any political subdivision of any such
state or any public instrumentality thereof maturing within one year from
the date of acquisition thereof and having as at such date the highest
rating obtainable from either Standard & Poor's Rating Group or Moody's
Investors Service, Inc.,
(3) commercial paper maturing no more than 270 days from
the date of creation thereof and having as at the date of acquisition
thereof one of the two highest ratings obtainable from either Standard &
Poor's Rating Group or Moody's Investors Service, Inc.,
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(4) certificates of deposit maturing one year or less from
the date of acquisition thereof issued by commercial banks incorporated
under the laws of the United States of America or any state thereof or
the District of Columbia or Canada, (A) the commercial paper or other
short term unsecured debt obligations of which are as at such date rated
either A-2 or better (or comparably if the rating system is changed) by
Standard & Poor's Rating Group or Prime-2 or better (or comparably if the
rating system is changed) by Moody's Investors Service, Inc. or (B) the
long-term debt obligations of which are as at such date rated either A or
better (or comparably if the rating system is changed) by Standard &
Poor's Rating Group or A2 or better (or comparably if the rating system
is changed) by Moody's Investors Service, Inc. ("Permitted Banks"),
(5) Eurodollar time deposits having a maturity of less than
270 days from the date of acquisition thereof purchased directly from any
Permitted Bank,
(6) bankers' acceptances eligible for rediscount under
requirements of The Board of Governors of the Federal Reserve System and
accepted by Permitted Banks, and
(7) obligations of the type described in clause (1), (2),
(3), (4) or (5) above purchased from a securities dealer designated as a
"primary dealer" by the Federal Reserve Bank of New York or from a
Permitted Bank as counterparty to a written repurchase agreement
obligating such counterparty to repurchase such obligations not later
than 14 days after the purchase thereof and which provides that the
obligations which are the subject thereof are held for the benefit of the
Company or a Restricted Subsidiary by a custodian which is a Permitted
Bank and which is not a counterparty to the repurchase agreement in
question;
(b) the Company or any Restricted Subsidiary may acquire Capital Stock or
other ownership interests, whether in a single transaction or a series of
related transactions, of a Person (i) located in the United States of America or
Canada, (ii) incorporated or otherwise formed pursuant to the laws of the United
States of America or Canada or any state or province thereof or the District of
Columbia and (iii) engaged in substantially the same business as the Company
such that, upon the completion of such transaction or series of transactions,
such Person becomes a Restricted Subsidiary;
(c) subject to the provisions of subdivision (h) below, the Company or
any Restricted Subsidiary may make and own Investments (in addition to
Investments permitted by subdivisions (a), (b), (d), (e), (f) and (g) of this
SECTION 10.3) in any Person incorporated or otherwise formed pursuant to the
laws of the United States of America or Canada or any state or province thereof
or the District of Columbia which is engaged in the United States of America or
Canada in substantially the same business as the Company; provided, however,
that (i) the aggregate amount of all such Investments made by the Company and
its Restricted Subsidiaries at the time of the Closing and outstanding pursuant
to this subdivision (c) and subdivision (h) below shall not at any date of
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determination exceed 10% of Total Assets (the "Investment Limit"),
provided that, in addition to Investments that would be permitted under
the Investment Limit, during any fiscal year the Company and its
Restricted Subsidiaries may invest up to $25,000,000 (the "Annual Limit")
pursuant to the provisions of this subdivision (c), but the unused amount
of the Annual Limit shall not be carried over to any future years, (ii)
such Investments shall become part of the General Collateral and shall be
subjected to the Lien of the Security Documents and (iii) such
Investments shall not be made in Capital Stock or Indebtedness of the
Public Partnership or any of its Subsidiaries (other than the Company and
the Restricted Subsidiaries);
(d) the Company or any Restricted Subsidiary may make and own
Investments (i) arising out of loans and advances to employees incurred
in the ordinary course of business, (ii) arising out of extensions of
trade credit or advances to third parties in the ordinary course of
business, and (iii) acquired by reason of the exercise of customary
creditors' rights upon default or pursuant to the bankruptcy, insolvency
or reorganization of a debtor;
(e) the Company and any Restricted Subsidiary may create or become
liable with respect to any Guaranty constituting an obligation, warranty
or indemnity, not guaranteeing Indebtedness of any Person, which is
undertaken or made in the ordinary course of business;
(f) the Company may create and become liable with respect to any
Interest Rate Agreements;
(g) any Restricted Subsidiary may make Investments in the Company;
and
(h) the Company or any Restricted Subsidiary may make or own
Investments in Unrestricted Subsidiaries, provided that the Net Amount of
Unrestricted Investment shall not at any time exceed $5,000,000 (and
subject to the limitations specified in subdivision (c) above).
Section 10.4. Restricted Payments. The Company will not directly or
indirectly declare, order, pay, make or set apart any sum for any Restricted
Payment, except that the Company may declare or order, and make, pay or set
apart, once during each calendar quarter a Restricted Payment if (a) such
Restricted Payment is in an amount not exceeding Available Cash for the
immediately preceding calendar quarter determined as of the last day of such
calendar quarter, and (b) immediately after giving effect to any such proposed
action no Event of Default (or Default under SECTION 11(b), 11(g) or 11(h))
shall exist and be continuing. The Company will comply with, and accrue on its
books, the reserve provisions required under the definition of Available Cash.
The Company will not, in any event, directly or indirectly declare, order, pay
or make any Restricted Payment except in cash. The Company will not permit any
Restricted Subsidiary to declare, order, pay or make any Restricted Payment or
to set apart any sum or property for any such purpose (it being understood that
nothing in this SECTION 10.4 shall prohibit any Restricted Subsidiary from
declaring, ordering, paying, making, or setting apart any sum or property for,
any payment or other distribution or dividend to (i) the Company or any Wholly-
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Owned Restricted Subsidiary and (ii) so long as no Default or Event of Default
shall occur and be continuing, all holders of Capital Stock of such Restricted
Subsidiary on a pro rata basis (with any such distribution or dividend to a
Control Affiliate being subject to the limitation of the first sentence of this
SECTION 10.4)).
Section 10.5. Transactions with Affiliates. The Company will not, and
will not permit any Restricted Subsidiary to, directly or indirectly, engage in
any transaction with any Affiliate of the Company or such Restricted Subsidiary,
including without limitation the purchase, transfer, disposition, sale, lease or
exchange of assets or the rendering of any service, unless (1)(a) such
transaction or series of related transactions is on fair and reasonable terms
that are no less favorable to the Company or such Restricted Subsidiary, as the
case may be, than those which would be obtained in an arm's-length transaction
at the time such transaction is agreed upon between Persons which are not
Affiliates, and (b) with respect to a transaction or series of transactions
involving aggregate payments or value equal to or greater than $15 million, the
Company shall have delivered an Officers' Certificate to each holder of a Note
certifying that such transaction or series of transactions complies with the
preceding clause (a) and that such transaction or series of transactions has
been approved by a majority of the Board of Directors of the General Partner
(including a majority of the Disinterested Directors), or (2) such transaction
or series of related transactions is between the Company and any Wholly-Owned
Restricted Subsidiary or between two Wholly-Owned Restricted Subsidiaries,
provided, however, that this SECTION 10.5 will not restrict the Company, any
Restricted Subsidiary or the General Partner from entering into (i) any
employment agreement, stock option agreement, restricted stock agreement or
other similar agreement in the ordinary course of business, (ii) transactions
permitted by SECTION 10.4 and (iii) transactions in the ordinary course of
business in connection with reinsuring the self-insurance programs or other
similar forms of retained insurable risks of the retail propane business
operated by the Company, its Subsidiaries and its Affiliates.
Section 10.6. Subsidiary Stock and Indebtedness. The Company will not:
(a) directly or indirectly sell, assign, pledge or otherwise
dispose of any Indebtedness of or any shares of stock or similar
interests of (or warrants, rights or options to acquire stock or similar
interests of) any Restricted Subsidiary, except to a Wholly-Owned
Restricted Subsidiary;
(b) permit any Restricted Subsidiary directly or indirectly to
sell, assign, pledge or otherwise dispose of any Indebtedness of the
Company or any other Restricted Subsidiary, or any shares of stock or
similar interests of (or warrants, rights or options to acquire stock or
similar interests of) any other Restricted Subsidiary, except to the
Company or a Wholly-Owned Restricted Subsidiary;
(c) permit any Restricted Subsidiary to have outstanding any
shares of stock or similar interests which are preferred over any other
shares of stock or similar interests in such Restricted Subsidiary owned
by the Company or a Wholly-Owned Restricted Subsidiary unless such shares
of preferred stock or similar interests are owned by the Company or a
Wholly-Owned Restricted Subsidiary; or
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(d) permit any Restricted Subsidiary directly or indirectly to
issue or sell (including without limitation in connection with a merger
or consolidation of such Subsidiary otherwise permitted by SECTION
10.7(a)) any shares of its stock or similar interests (or warrants,
rights or options to acquire its stock or similar interests) except to
the Company or a Wholly-Owned Restricted Subsidiary;
provided that, (i) any Restricted Subsidiary may sell, assign or otherwise
dispose of Indebtedness of the Company to a Person other than a Restricted
Subsidiary if, assuming such Indebtedness were incurred immediately after such
sale, assignment or disposition, such Indebtedness would be permitted under
SECTION 10.1 (in which case such Indebtedness need not be subject to the
subordination provisions required by SECTION 10.1(c)) and (ii) subject to
compliance with SECTION 10.7(c), all Indebtedness and shares of stock or
partnership interests of any Restricted Subsidiary owned by the Company or any
other Restricted Subsidiary may be simultaneously sold as an entirety for an
aggregate consideration at least equal to the fair value thereof (as determined
in good faith by the General Partner) at the time of such sale if (x) such
Restricted Subsidiary does not at the time own (A) any Indebtedness of the
Company or any other Restricted Subsidiary (other than Indebtedness which, if
incurred immediately after such transaction, would be permitted under SECTION
10.1, in which case such Indebtedness need not be subject to the subordination
provisions required by SECTION 10.1(c)) or (B) any stock or other interest in
any other Restricted Subsidiary which is not also being simultaneously sold as
an entirety in compliance with this proviso or SECTION 10.7(b)(ii) and (y) at
the time of such transaction and immediately after giving effect thereto, the
Company could incur at least $1 of additional Indebtedness in compliance with
clauses (i) and (ii) of SECTION 10.1(f).
Section 10.7. Consolidation, Merger, Sale of Assets, etc. The Company
will not, and will not permit any Restricted Subsidiary to, directly or
indirectly,
(a) consolidate with or merge into any other Person or permit any other
Person to consolidate with or merge into it, except that:
(i) any Restricted Subsidiary may consolidate with or merge
into the Company or a Wholly-Owned Restricted Subsidiary if the Company
or a Wholly-Owned Restricted Subsidiary, as the case may be, shall be the
surviving Person and if, immediately after giving effect to such
transaction, no Default or Event of Default shall exist and be
continuing; and
(ii) any entity (other than a Restricted Subsidiary) may
consolidate with or merge into the Company or a Wholly-Owned Restricted
Subsidiary if the Company or a Wholly-Owned Restricted Subsidiary, as the
case may be, shall be the surviving Person and if, immediately after
giving effect to such transaction, (x) the Company (1) shall not have a
Consolidated Net Worth, determined in accordance with GAAP applied on a
basis consistent with the consolidated financial statements of the
Company most recently delivered pursuant to SECTION 7(b), of less than
the Consolidated Net Worth of the Company immediately prior to the
effectiveness of such transaction, satisfaction of this requirement to be
set forth in reasonable detail in an Officers' Certificate
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delivered to each holder of a Note at the time of such transaction, (2)
shall not be liable with respect to any Indebtedness or allow its
property to be subject to any Lien which it could not become liable with
respect to or allow its property to become subject to under this
Agreement (including without limitation under SECTION 10.1 or 10.2) on
the date of such transaction, and (3) could incur at least $1 of
additional Indebtedness in compliance with clauses (i) and (ii) of
SECTION 10.1(f), (y) substantially all of the assets of the Company and
its Restricted Subsidiaries shall be located and substantially all of
their business shall be conducted within the continental United States of
America and (z) no Default or Event of Default shall exist and be
continuing; and
(iii) subject to compliance with the provisions of SECTION 18.2,
the Company may consolidate with or merge into any other entity if (w)
the surviving entity is a corporation or limited partnership organized
and existing under the laws of the United States of America or any state
thereof or the District of Columbia, with substantially all of its
properties located and its business conducted (without giving effect to
the properties owned by, and the business conducted by, Unrestricted
Subsidiaries) within the continental United States of America, (x) such
corporation or limited partnership expressly and unconditionally assumes
the obligations of the Company under this Agreement, the Notes and the
other Financing Documents to which the Company is a party, and delivers
to each holder of a Note at the time outstanding an opinion of counsel
reasonably satisfactory to the Required Holders with respect to the due
authorization and execution of the related agreement of assumption and
the enforceability of such agreement against such corporation or
partnership and the continued effectiveness and priority of the Liens of
the Security Documents, (y) immediately after giving effect to such
transaction, such corporation or limited partnership (1) shall not have
(without giving effect to Unrestricted Subsidiaries) a Consolidated Net
Worth, determined in accordance with GAAP applied on a basis consistent
with the consolidated financial statements of the Company most recently
delivered pursuant to SECTION 7(b), of less than the Consolidated Net
Worth of the Company immediately prior to the effectiveness of such
transaction, satisfaction of this requirement to be set forth in
reasonable detail in an Officers' Certificate delivered to each holder of
a Note at the time of such transaction, (2) shall not be liable with
respect to any Indebtedness or allow its property to be subject to any
Lien which it could not become liable with respect to or allow its
property to become subject to under this Agreement (including without
limitation under SECTION 10.1 or 10.2) on the date of such transaction
and (3) could incur at least $1 of additional Indebtedness in compliance
with clauses (i) and (ii) of SECTION 10.1(f), and (z) immediately after
giving effect to such transaction no Default or Event of Default shall
exist and be continuing; or
(b) sell, lease, abandon or otherwise dispose of all or substantially all
its assets, except that:
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(i) any Restricted Subsidiary may sell, lease or otherwise
dispose of all or substantially all its assets to the Company or to a
Wholly-Owned Restricted Subsidiary; and
(ii) subject to compliance with clause (c) of this SECTION
10.7, any Restricted Subsidiary may sell, lease or otherwise dispose of
all or substantially all its assets as an entirety for an aggregate
consideration at least equal to the fair value thereof (as determined in
good faith by the General Partner) at the time of such sale if (x) the
assets being so sold, leased or otherwise disposed of do not include (A)
any Indebtedness of the Company or any other Restricted Subsidiary (other
than Indebtedness which, if incurred immediately after such transaction,
would be permitted under SECTION 10.1, in which case such Indebtedness
need not be subject to the subordination provisions required by SECTION
10.1(c) so long as such Indebtedness is held by a Person other than the
Company or a Restricted Subsidiary) or (B) any stock of or other equity
interest in any other Restricted Subsidiary which is not also being
simultaneously sold as an entirety in compliance with this subdivision
(b)(ii) or the proviso of SECTION 10.6 and (y) at the time of such
transaction and immediately after giving effect thereto, the Company
could incur at least $1 of additional Indebtedness in compliance with
clauses (i) and (ii) of SECTION 10.1(f); and
(iii) the Company may sell, lease or otherwise dispose of
all or substantially all its assets to any corporation or limited
partnership into which the Company could be consolidated or merged in
compliance with subdivision (a)(iii) of this SECTION 10.7, provided that
each of the conditions set forth in such subdivision (a)(iii) shall have
been fulfilled; or
(c) (1) sell, lease, convey, abandon or otherwise dispose of any of its
assets (except in a transaction permitted by subdivision (a)(i), (a)(iii),
(b)(i) or (b)(iii) of this SECTION 10.7 or sales of inventory in the ordinary
course of business consistent with past practice), including by way of a Sale
and Lease-Back Transaction, or (2) issue or sell Capital Stock of any Restricted
Subsidiary, in the case of either clause (1) or (2) above, whether in a single
transaction or a series of related transactions (each of the foregoing
non-excepted transactions, an "Asset Sale"), unless:
(i) immediately after giving effect to such proposed disposition
no Default or Event of Default shall exist and be continuing; and
(ii) one of the following two conditions shall be satisfied:
(A) the aggregate Net Proceeds of all assets so disposed of
(whether or not leased back) by the Company and its Restricted
Subsidiaries during the current fiscal year (including (x) amounts
deemed to be proceeds in connection with designations of
Restricted Subsidiaries as Unrestricted Subsidiaries during such
fiscal year under SECTION 10.21 and (y) Net Proceeds of
dispositions of shares pursuant to SECTION 10.6 or
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sales of assets pursuant to SECTION 10.7(b)), less the amount of
all Net Proceeds of prior dispositions of assets during such
fiscal year previously applied in accordance with subdivision
(ii)(B) of this SECTION 10.7(c), shall not exceed $10,000,000
during such fiscal year; or
(B) in the event that such Net Proceeds (less the amount
thereof previously applied in accordance with this subdivision
(ii)(B)) during the current fiscal year exceed $10,000,000 (such
excess Net Proceeds actually realized being herein called "Excess
Sale Proceeds"), the Company shall within 360 days of the date of
the disposal of the assets giving rise to such proceeds, cause an
amount equal to such Excess Sale Proceeds to be applied (with the
designation of an Unrestricted Subsidiary as a Restricted
Subsidiary being deemed to be such an application to the extent of
the fair value of such Restricted Subsidiary as determined in good
faith by the General Partner) (x) to the acquisition of assets in
replacement of the assets so disposed of or of assets which may be
productively used in the United States of America or Canada in the
conduct of the Business (and such newly acquired assets shall
become part of the General Collateral and shall be subjected to
the Lien of the Security Documents), or (y) to the extent not
applied pursuant to the immediately preceding clause (x), to the
prepayment of the Notes and Parity Debt, if any, pursuant to
SECTION 9.3 hereof, all as provided in Section 4(c) of the
Intercreditor Agreement and such SECTION 9.3; and
(iii) (A) the consideration received for such assets is at least
equal to their aggregate fair market value (as determined in good faith
by the General Partner) at the time of such disposition and that such
consideration has been applied or is being held for application in
accordance with the terms of this Agreement and (B) at least 80% of the
consideration therefor received is in the form of cash; provided,
however, that the amount of (1) any liabilities (as shown on the
Company's or such Restricted Subsidiary's most recent balance sheet or in
the notes thereto) of the Company or any Restricted Subsidiary (other
than liabilities that are by their terms subordinated in right of payment
to the Notes) that are assumed by the transferee of any such assets and
(2) any notes or other obligations received by the Company or any such
Restricted Subsidiary from such transferee that are immediately converted
by the Company or such Restricted Subsidiary into cash (to the extent of
the cash received), shall be deemed to be cash for purposes of this
clause (B); and provided, further, that the 80% limitation referred to in
this clause (B) shall not apply to any Asset Sale in which the cash
portion of the consideration received therefrom, determined in accordance
with the foregoing proviso, is equal to or greater than what the
after-tax proceeds would have been had such Asset Sale complied with the
aforementioned 80% limitation.
Notwithstanding the foregoing, Asset Sales shall not be deemed to include
(1) any transfer of assets or issuance or sale of Capital Stock by the Company
or any Restricted
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Subsidiary to the Company or a Wholly-Owned Restricted Subsidiary, (2) any
transfer of assets or issuance or sale of Capital Stock by the Company or any
Restricted Subsidiary to any Person in exchange for other assets used in a line
of business permitted under SECTION 10.8(c) and having a fair market value (as
determined in good faith by the General Partner) not less than that of the
assets so transferred or Capital Stock so issued or sold (so long as such assets
shall become part of the General Collateral and shall be subjected to the Lien
of the Security Documents) and (3) any transfer of assets pursuant to an
Investment permitted by SECTION 10.3.
Section 10.8. Partnership or Corporate Existence, etc.; Business;
Compliance with Laws. (a) Except as otherwise expressly permitted in accordance
with SECTION 10.6 or 10.7, (i) the Company will at all times preserve and keep
in full force and effect its partnership existence and its status as a
partnership not taxable as a corporation, (ii) the Company will cause each of
the Restricted Subsidiaries to keep in full force and effect its partnership or
corporate existence, and (iii) the Company will, and will cause each Restricted
Subsidiary to, at all times preserve and keep in full force and effect all of
its material rights and franchises; provided, however, that the partnership or
corporate existence of any Restricted Subsidiary, and any right or franchise of
the Company or any Restricted Subsidiary, may be terminated notwithstanding this
SECTION 10.8 if, in the good faith judgment of the Company, such termination (x)
is in the best interest of the Company and the Restricted Subsidiaries, (y) is
not disadvantageous to the holders of the Notes in any material respect and (z)
would not have a Material Adverse Effect.
(b) The Company will, and will cause each of its Subsidiaries to, at all
times comply with all laws, regulations and statutes (including without
limitation any zoning or building ordinances or code) applicable to it, except
for failures to so comply which, individually or in the aggregate, would not
present a reasonable likelihood of having a Material Adverse Effect.
(c) The Company will not, and will not permit any Restricted Subsidiary
to, engage in any lines of business other than the business of wholesale and
retail sales, distribution and storage of propane gas and related petroleum
derivative products and the retail sale and distribution of propane-related
supplies and equipment, including home appliances.
Section 10.9. Payment of Taxes and Claims. The Company will, and will
cause each of its Subsidiaries to, pay all material taxes, assessments and other
governmental charges imposed upon it or any of its Subsidiaries, or any of its
or its Subsidiaries' properties or assets or in respect of any of its or any of
its Subsidiaries' franchises, business, income or profits when the same become
due and payable, and all claims (including without limitation claims for labor,
services, materials and supplies) for sums which have become due and payable and
which by law have or might become a Lien upon any of its or any of its
Subsidiaries' properties or assets, and promptly reimburse the holders of the
Notes for any such taxes, assessments, charges or claims paid by them; provided
that no such tax, assessment, charge or claim need be paid or reimbursed if it
is being contested in good faith by appropriate proceedings promptly initiated
and diligently conducted and if such reserves or other appropriate provision, if
any, as shall be required by GAAP shall have been made therefor and be adequate
in the good faith judgment of the General Partner.
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Section 10.10. Compliance with ERISA. Except to the extent that any of
the following occurrences would not, either alone or together, present a
reasonable likelihood of having a Material Adverse Effect, the Company will not,
and will not permit any of its Subsidiaries to: (a) engage in any transaction in
connection with which the Company or any such Subsidiary could be subject to
either a civil penalty assessed pursuant to Section 502(i) of ERISA or a tax
imposed by Section 4975 of the Code, (b) terminate (within the meaning of Title
IV of ERISA) or withdraw from any Plan in a manner, or take any other action
with respect to any such Plan (including without limitation a substantial
cessation of operations within the meaning of Section 4062(e) of ERISA), which
could result in any liability of the Company or any such Subsidiary or Related
Person to the PBGC, any Plan, any participant or beneficiary thereunder or any
trustee thereof appointed pursuant to Section 4042(b) or (c) of ERISA, (c)
establish, maintain, contribute to or become obligated to contribute to any
welfare benefit plan (as defined in Section 3(1) of ERISA) or other welfare
benefit arrangement which provides post-employment benefits (other than benefits
required to be provided pursuant to Section 4980B of the Code), (d) fail to make
full payment when due of all amounts which, under the provisions of any Plan or
applicable law, the Company or any such Subsidiary or Related Person is required
to pay as contributions thereto, or permit to exist any material accumulated
funding deficiency, whether or not waived, with respect to any Plan, (e) engage
in any transaction in connection with which the Company or any such Subsidiary
or Related Person could be subject to liability pursuant to Section 4069(a) or
4212(c) of ERISA, or (f) as of any date of determination (A) permit the amount
of unfunded benefit liabilities under any Plan subject to Title IV of ERISA
maintained at such time by the Company or any Related Persons to exceed the
current value of the assets of any such Plan or (B) permit any liability to be
incurred by the Company and the Related Persons pursuant to Title IV of ERISA
with respect to one or more complete or partial withdrawals from any Plan.
As used in this SECTION 10.10, the term "accumulated funding deficiency"
has the meaning specified in Section 302 of ERISA and Section 412 of the Code,
the term "current value" has the meaning specified in Section 3 of ERISA and the
terms "benefit liabilities" and "amount of unfunded benefit liabilities" have
the meanings specified in Section 4001 of ERISA.
Section 10.11. Maintenance of Properties; Insurance; Environmental Laws.
(a) The Company will maintain or cause to be maintained in good repair, working
order and condition all properties used or useful in the business of the Company
and the Restricted Subsidiaries and from time to time will make or cause to be
made all appropriate repairs, renewals and replacements thereof.
(b) The Company will maintain or cause to be maintained, with
Permitted Insurers to the extent available on commercially reasonable terms from
Permitted Insurers and otherwise with financially sound and reputable insurers,
insurance with respect to its properties and business and the properties and
business of the Restricted Subsidiaries of the types and in the amounts
specified in Sections 20 and 21 of the Intercreditor Agreement and the
Collateral Agent shall be named as an additional insured party on each insurance
policy maintained pursuant to this SECTION 10.11(b).
(c) The Company will, and will cause each of its Restricted
Subsidiaries to:
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(i) comply with all applicable Environmental Laws and any
permit, license, or approval required under any Environmental Law,
except for failures to so comply which would not present a
reasonable likelihood of having a Material Adverse Effect;
(ii) store, use, release, or dispose of any Hazardous
Substance at any property owned or leased by the Company or any of
its Subsidiaries in a manner which would not present a reasonable
likelihood of having a Material Adverse Effect;
(iii) avoid committing any act or omission which would
cause any Lien to be asserted against any property owned by the
Company or any of its Restricted Subsidiaries pursuant to any
Environmental Law, except where such Lien would not present a
reasonable likelihood of having a Material Adverse Effect;
(iv) use, handle or store any propane in compliance with
all applicable laws, except where such non-compliance would not
present a reasonable likelihood of having a Material Adverse
Effect; and
(v) take all steps required by Environmental Law to cure
any violation thereof disclosed in SCHEDULE 5.18.
Section 10.12. Operative Agreements. The Company will perform and comply
with all of its obligations under each of the Operative Agreements to which it
is a party, will enforce each such Operative Agreement against each other party
thereto and will not accept the termination of any such Operative Agreement or
any amendment or supplement thereof or modification or waiver thereunder, unless
any such failure to perform, comply or enforce or any such acceptance would not,
individually or in the aggregate, present a reasonable likelihood of having a
Material Adverse Effect.
Section 10.13. Chief Executive Office. The Company will not move its
chief executive office and the office at which it maintains its records relating
to the transactions contemplated by this Agreement and the Security Documents
unless not less than 45 days' prior written notice of its intention to do so,
clearly describing the new location, shall have been given to the Collateral
Agent and each holder of a Note.
Section 10.14. Subsidiary Guarantors. Promptly upon any Person becoming a
Restricted Subsidiary of the Company, the Company will cause such Restricted
Subsidiary to execute and deliver to the Collateral Agent such appropriate
documents to become (a) a guarantor under the Subsidiary Guarantee and an
assignor under the Subsidiary Security Agreement and (b) bound by the terms and
provisions of the Intercreditor Agreement. If any Restricted Subsidiary then or
thereafter shall have any interests in real property the Company will, subject
to and if required by the provisions of SECTION 10.15, cause such Restricted
Subsidiary to execute and deliver to the Collateral Agent a Mortgage with such
changes, mutatis mutandis, so as to make such instrument applicable to such
Restricted Subsidiary and its interests in real property, and cause the same to
be recorded, published, registered and filed as provided in SECTION 10.15.
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Section 10.15. New Mortgages; Conveyance Agreements. From and after the
date of the Closing, the Company and the Restricted Subsidiaries, if applicable,
will execute and deliver a Mortgage covering any owned district location
hereafter acquired by it and any other real property hereafter acquired by it or
the Restricted Subsidiaries which has an individual value in excess of $100,000
or which has an aggregate value in excess of $500,000 and which is not already
subject to the Lien of a Mortgage. The Company will cause to be duly recorded,
published, registered and filed all the documents set forth in paragraph (b) of
the definition of Conveyance Agreements and Security Documents (or documents or
instruments in respect thereof), in such manner and in such places as is
required by law to establish, and if applicable, perfect and preserve the rights
and security interests of the parties thereto and their respective successors
and assigns in the General Collateral. The Company will pay or cause to be paid
all taxes, fees and other governmental charges in connection with the execution,
delivery, recording, publishing, registration and filing of such documents or
instruments in such places.
Section 10.16. Further Assurances. At any time and from time to time
promptly, the Company shall, at its expense, execute and deliver to each holder
of a Note and to the Collateral Agent such further instruments and documents,
and take such further action, as the holders of the Notes may from time to time
reasonably request, in order to further carry out the intent and purpose of this
Agreement and the other Financing Documents and to establish, perfect, preserve
and protect the rights, interests and remedies created, or intended to be
created, in favor of the holders of the Notes and the Collateral Agent hereunder
and thereunder, including without limitation the execution, delivery,
recordation and filing of financing statements and continuation statements under
the Uniform Commercial Code of any applicable jurisdiction, and the delivery of
satisfactory opinions of counsel as to the recording, registration or filing of
the Security Documents (or documents or instruments in respect thereof) and the
legal, valid, binding and enforceable nature thereof and the validity of the
Liens created thereby on the General Collateral.
Section 10.17. Covenant to Secure Notes Equally. The Company covenants
that, if it or any Restricted Subsidiary shall create or assume any Lien upon
any of its property or assets, whether now owned or hereafter acquired, other
than Liens permitted by the provisions of SECTION 10.2 (unless prior written
consent to the creation or assumption thereof shall have been obtained pursuant
to SECTION 18.1), it will make or cause to be made effective provision whereby
the Notes will be secured by such Lien equally and ratably with any and all
other Indebtedness thereby secured so long as any such other Indebtedness shall
be so secured, it being understood that the provision of such equal and ratable
security shall not constitute a cure or waiver of any related Event of Default.
Section 10.18. Information Required by Rule 144A. The Company covenants
that it will, upon the prior written request of the holder of any Note, provide
such holder, and any qualified institutional buyer designated by such holder,
such financial and other information as such holder may reasonably determine to
be necessary in order to permit compliance with the information requirements of
Rule 144A under the Securities Act in connection with the resale of Notes,
except at such times as the Company is subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act. For the purpose of this SECTION 10.18,
the term "qualified institutional buyer" shall have the meaning specified in
Rule 144A under the Securities Act.
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Section 10.19. Limitation on Sales of Receivables. The Company will not,
and will not permit any Restricted Subsidiary to, discount or sell (with or
without recourse) any of its accounts or notes receivable, except for sales of
receivables (a) made in the ordinary course of business with a face amount not
to exceed $500,000 in the aggregate which have been sold and remain unpaid by
the account debtors, (b) without recourse which are seriously past due and which
have been substantially written off as uncollectible or collectible only after
extended delays, (c) from a Restricted Subsidiary to the Company or (d) made in
connection with the sale of a business but only with respect to the receivables
directly generated by the business so sold.
Section 10.20. No Action Requiring Registration. Neither the Company nor
anyone acting on its behalf will take any action which would subject the
issuance and sale of the Notes to the registration and prospectus delivery
provisions of the Securities Act or to the registration or qualification
provisions of any securities or Blue Sky law of any applicable jurisdiction.
Section 10.21. Designations With Respect to Subsidiaries. (a) The Company
may designate any Restricted Subsidiary or newly acquired or formed Subsidiary
as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted
Subsidiary, in each case subject to satisfaction of the following conditions:
(i) immediately before and after giving effect to such
designation, no Default or Event of Default shall exist and be
continuing; and
(ii) after giving effect to such designation, the Company would be
permitted to incur at least $1 of additional Indebtedness in accordance
with the provisions of clauses (i) and (ii) of SECTION 10.1(f); and
(iii) in the case of a designation of a Restricted Subsidiary or a
newly acquired or formed Subsidiary as an Unrestricted Subsidiary, the
conditions set forth in subdivision (ii)(A) of SECTION 10.7(c) (the "Sale
Condition") and SECTION 10.3(h) (the "Investment Condition") would be
satisfied, assuming for this purpose that such designation (and all prior
designations of Restricted Subsidiaries or newly acquired or formed
Subsidiaries as Unrestricted Subsidiaries during the current fiscal year)
constitutes a sale by the Company of (in the case of the Sale Condition),
and an Investment by the Company in an amount equal to (in the case of
the Investment Condition), all the assets of the Subsidiary so
designated, in each case for an amount equal to (x) the net book value of
such assets in the case of a Restricted Subsidiary and (y) the cost of
acquisition or formation in the case of a newly acquired or formed
Subsidiary (such amounts being herein referred to as "Designation
Amounts" and deemed to constitute Net Proceeds for the purposes of the
Sale Condition).
(b) A Subsidiary that has twice previously been designated an
Unrestricted Subsidiary may not thereafter be designated as a Restricted
Subsidiary.
(c) The Company shall deliver to each holder of Notes, within 20
Business Days after any such designation, an Officers' Certificate
stating the effective date of such designation and stating that the
foregoing conditions contained in this SECTION 10.21 have been satisfied.
Such
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certificate shall be accompanied by a Schedule setting forth in reasonable
detail the calculations demonstrating compliance with such conditions, where
appropriate.
(d) All Investments, Indebtedness, Liens, Guaranties and other
obligations that an Unrestricted Subsidiary (the "Designee") has at the time of
being designated a Restricted Subsidiary hereunder shall be deemed to have been
acquired, made or incurred, as the case may be, at the time of such designation
and in anticipation of such Designee becoming a Subsidiary and of acquiring its
assets (except as otherwise specifically provided in SECTION 10.1(i) or (j) or
SECTION 10.2(n)).
Section 10.22. Covenants of the General Partner. (a) The General Partner
covenants that it will not create any Liens (other than Liens on the Capital
Stock of the Public Partnership owned by the General Partner) or dispose of any
assets or properties covered by the terms of any License Agreement and will
maintain and keep in effect its corporate existence and franchises. The General
Partner will have no Subsidiaries, other than Petrolane, AmeriGas Technology
Group, Inc. and the Public Partnership, except as contemplated by SECTION
10.22(e).
(b) The General Partner will deliver to each Significant Holder
(i) financial statements as to itself of the same character described in, and at
the times specified in, SECTION 7(a) and 7(b) with respect to the Company
("Company Financials"), in each case certified and reported on in the same
manner as the Company Financials, and (ii) with reasonable promptness, such
other information and data (financial or other) with respect to the General
Partner as may from time to time be reasonably requested.
(c) The General Partner will not permit the Public Partnership or
any Subsidiary of the Public Partnership to use funds or other property received
from the Company or a Restricted Subsidiary (as distributions of Available Cash,
the proceeds of loans, advances or investments or otherwise) to pay, prepay,
redeem, retire, purchase, acquire, collateralize or defease any Indebtedness of
a Control Affiliate (including without limitation the Public Partnership Notes);
provided, however, that the General Partner may permit the Public Partnership to
expend any funds received from the Company as distributions of Available Cash in
order (i) to make open market or private purchases of Public Partnership Debt,
but only to the extent that after giving effect to such expenditure (a "Public
Partnership Expenditure") the sum of (x) all Public Partnership Expenditures and
(y) all payments in respect of accepted Note Offers pursuant to SECTION 9.8 at
prices less than 100% of the principal amount of the applicable Notes shall not
exceed $103,600,000 and (ii) to pay interest on the Public Partnership Debt and
to pay the principal thereof at maturity or at any scheduled mandatory
prepayment date (including without limitation pursuant to a (1) Purchase Event
or (2) prepayment under circumstances and on terms substantially identical to,
and not inconsistent with, SECTION 9.3(b) to the extent it relates to Excess
Taking Proceeds or SECTION 10.7(c)(ii) to the extent it relates to Excess Sale
Proceeds, in each case not involving a default).
(d) The General Partner will perform and comply with all of its
obligations under each of the Operative Agreements to which it is a party, will
enforce each such Operative Agreement against each other party thereto and will
not accept the termination of any such Operative Agreement or any amendment or
supplement thereof or modification or waiver thereunder,
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unless any such failure to perform, comply or enforce or any such acceptance
would not, individually or in the aggregate, present a reasonable likelihood of
having a Material Adverse Effect.
(e) Section 6.5 of the Partnership Agreement (the "Incorporated
Covenant") as in effect on the date of the Closing, together with all related
definitions, is hereby incorporated herein in the form included in the
Partnership Agreement on the date of the Closing and without regard to any
subsequent amendments or waivers of the provisions of, or any termination of,
the Partnership Agreement. The General Partner agrees to fully perform and
comply with the Incorporated Covenant so long as any of the Notes are
outstanding.
ARTICLE XI
EVENTS OF DEFAULT; ACCELERATION
If any of the following conditions or events ("Events of Default") shall
occur and be continuing:
(a) the Obligors shall default in the payment of any principal of,
or Make Whole Amount, if any, on, any Note when the same becomes due and
payable, whether at maturity or at a date fixed for prepayment or by
declaration or otherwise; or
(b) the Obligors shall default in the payment of any interest on
any Note for more than 5 days after the same becomes due and payable; or
(c) there shall be a default in the performance of or compliance
with any term contained in SECTION 7(g) or any of SECTIONS 10.1 (and, in
the case of the first sentence of SECTION 10.1, such default shall
continue unremedied for 30 days) through 10.7, inclusive, and 10.8(a)(i),
provided, however, that with respect to (i) incurrence of Indebtedness in
violation of SECTION 10.1 in an aggregate outstanding principal amount
which is less than $5,000,000, (ii) incurrence of a Lien in violation of
SECTION 10.2 which secures Indebtedness which is in an aggregate
outstanding principal amount of less than $5,000,000, (iii) transactions
with an Affiliate in violation of SECTION 10.5 involving an aggregate
amount of less than $2,000,000, (iv) the making of any Investment or
creation of a Guaranty in violation of SECTION 10.3 involving an
aggregate amount of less than $2,000,000, or (v) the entering into of any
transaction in violation of SECTION 10.6 involving an aggregate amount of
less than $2,000,000, there shall be no Event of Default hereunder unless
the aggregate amount of all violations under clauses (i) through (v)
exceeds $8,000,000 on any date of determination or any such violation
shall remain uncured for 30 days after a Responsible Officer becomes
aware of any such violation; or
(d) the Company, any Restricted Subsidiary or the General Partner
shall default in the performance of or compliance with any other term
contained in this Agreement or contained in any of the other Financing
Documents or any License Agreement, and such default shall not have been
remedied within 45 days after such
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default shall first have become known to any Responsible Officer or
written notice thereof shall have been received by a Responsible Officer;
provided, however, that defaults under any Mortgage (other than under any
Specified Mortgage) shall not constitute an Event of Default under this
subdivision (d) unless such default shall not have been remedied within
the applicable 45-day period and when aggregated with all other defaults
described in this proviso (w) applies to at least 17 Mortgages, or (x)
applies to Mortgages covering Mortgaged Property having an aggregate fair
market value at the time of at least $1,000,000, or (y) would cost in
excess of $1,000,000 to cure or would present a reasonable likelihood of
resulting in liability to the Company or the Restricted Subsidiaries in
excess of $1,000,000 or (z) would result in a Material Adverse Effect; or
(e) any representation or warranty made in writing by or on behalf
of the Company, any Subsidiary thereof or the General Partner in this
Agreement, the other Financing Documents, the License Agreements or in
any instrument furnished pursuant to the provisions of this Agreement
shall prove to have been false or incorrect in any material respect on
the date as of which made; or
(f) (i) the Company, any Restricted Subsidiary, the General
Partner or any of its Subsidiaries or the Public Partnership or any of
its Subsidiaries (other than the Partnership Unrestricted Subsidiaries)
(as principal or guarantor or other surety) shall default in the payment
of any amount of principal of or premium or interest on any Parity Debt
or any other Indebtedness, other than the Notes (regardless of whether or
not such payment default shall have been waived by the holders of such
Indebtedness); or (ii) any event shall occur or condition shall exist in
respect of any Indebtedness of the Company, any Restricted Subsidiary,
the General Partner or any of its Subsidiaries, the Public Partnership or
any of its Subsidiaries (other than the Partnership Unrestricted
Subsidiaries) or under any evidence of any such Indebtedness or under any
mortgage, indenture or other agreement relating thereto, and the effect
of such event or condition is to cause (or to permit one or more Persons
to cause) such Indebtedness to become due or be repurchased or repaid
before its stated maturity or before its regularly scheduled dates of
payment (other than pursuant to mandatory prepayment provisions pursuant
to a (1) Purchase Event or (2) prepayment under circumstances and on
terms substantially identical to, and not inconsistent with, SECTION
9.3(b) to the extent it relates to Excess Taking Proceeds or SECTION
10.7(c)(ii) to the extent it relates to Excess Sale Proceeds, in each
case not involving a default), and such default, event or condition shall
continue for more than the period of grace, if any, specified therein
(regardless of whether or not such default, event or condition shall have
been waived by the holders of such Indebtedness); provided, however, that
the aggregate principal amount of all Indebtedness as to which such a
default (payment or other), event or condition, as the case may be, shall
occur or exist exceeds $7,500,000; and provided, further, that this
subdivision (f) shall not apply to Indebtedness of the General Partner or
any Subsidiary thereof described in clause (b) of the definition of
Indebtedness which exists solely because of a pledge by the General
Partner or such Subsidiary of Capital Stock of the Public Partnership
owned by the General Partner or such Subsidiary and as to which the
General Partner or such Subsidiary has assumed no other liability; or
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(g) filing by or on the behalf of the Company, the General Partner
or any Significant Subsidiary Group of a voluntary petition or an answer
seeking reorganization, arrangement, readjustment of debts or for any
other relief under any bankruptcy, reorganization, compromise,
arrangement, insolvency, readjustment of debt, dissolution or liquidation
or similar act or law, state or federal, now or hereafter existing
("Bankruptcy Law"), or any action by the Company, the General Partner or
any Significant Subsidiary Group for, or consent or acquiescence to, the
appointment of a receiver, trustee or other custodian of the Company, the
General Partner or any Significant Subsidiary Group, or of all or a
substantial part of its property; or the making by the Company, the
General Partner or any Significant Subsidiary Group of any assignment for
the benefit of creditors; or the admission by the Company, the General
Partner or any Significant Subsidiary Group in writing of its inability
to pay its debts as they become due; or
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
reorganization, arrangement, readjustment of debts or other relief in
respect of the Company, the General Partner or any Significant Subsidiary
Group under any Bankruptcy Law or (ii) the appointment of a receiver,
trustee or other custodian of the Company, the General Partner or any
Significant Subsidiary Group, or of all or a substantial part of its
property, and in each case such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving any of the
foregoing shall be entered; or
(i) a final judgment or judgments (which is or are non-appealable
and non-reviewable or which has not or have not been stayed pending
appeal or review or as to which all rights to appeal or review have
expired or been exhausted) shall be rendered against the Company, any
Restricted Subsidiary, the General Partner or any Significant Subsidiary
Group for the payment of money in excess of $9,000,000 in the aggregate
and any one of such judgments shall not be covered by insurance or
discharged or execution thereon stayed pending appeal or review within 60
days after entry of such judgment, or, in the event of such a stay, such
judgment shall not be discharged within 30 days after such stay expires;
or
(j) any of the Security Documents shall at any time, for any
reason (other than pursuant to a transaction permitted pursuant to
SECTION 1.3, 10.7(a)(i), (b)(i) or (b)(ii)), cease to be in full force
and effect or shall be declared to be null and void in whole or in any
material respect (i.e., relating to the validity or priority of the Liens
created by the Security Documents or the remedies available thereunder)
by the final judgment (which is non-appealable and non-reviewable or has
not been stayed pending appeal or review or as to which all rights to
appeal or review have expired or been exhausted) of any court or other
Governmental Authority having jurisdiction in respect thereof, or if the
validity or the enforceability of any of the Security Documents shall be
contested by or on behalf of the Company or any Restricted Subsidiary, or
the Company or any Restricted Subsidiary shall renounce any of the
Security Documents, or deny that it is bound by the terms of any of the
Security Documents; or
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(k) any order, judgment or decree is entered in any proceedings
against the Company decreeing a split-up of the Company which requires
the divestiture of assets of the Company or the divestiture of the stock
of a Restricted Subsidiary which would not be permitted if such
divestiture were considered a partial disposition of assets pursuant to
SECTION 10.7(c) and such order, judgment or decree shall not be dismissed
or execution thereon stayed pending appeal or review within 60 days after
entry thereof, or, in the event of such a stay, such order, judgment or
decree shall not be dismissed within 30 days after such stay expires; or
(l) if the General Partner shall be engaged in any business or
activities other than those permitted by the Partnership Agreement as in
effect on the date of the Closing or shall not be a Wholly-Owned
Subsidiary of UGI; or if the General Partner shall (in the aggregate) own
directly or indirectly (together with UGI and one or more Wholly-Owned
Subsidiaries of UGI) less than 30% of the Capital Stock both (x) in the
Company (either directly or through its ownership interests in the Public
Partnership) and (y) in the Public Partnership; or if the General Partner
ceases to be the sole general partner of the Company or the sole general
partner of the Public Partnership;
then, (x) upon the occurrence of any Event of Default described in subdivision
(g) or (h) of this ARTICLE XI with respect to the Company, the unpaid principal
amount of and accrued interest on the Notes shall automatically become due and
payable, without presentment, demand, protest or further notice, which are
hereby waived, or, (y) upon the occurrence and continuance of any other Event of
Default, the Required Holders may at any time (unless all defaults shall
theretofore have been remedied or waived in accordance with the terms hereof) at
its or their option, by written notice or notices to the Obligors, declare all
the Notes to be due and payable, whereupon the same shall forthwith mature and
become due and payable, together with interest accrued thereon and the
applicable Make Whole Amount, if any, with respect to such Notes, all without
presentment, demand, protest or further notice, which are hereby waived,
provided that during the existence of an Event of Default described in
subdivision (a) or (b) of this ARTICLE XI any holder of the Notes at the time
outstanding may, at its option, by notice in writing to the Obligors, declare
the Notes then held by such holder to be due and payable, whereupon the Notes
then held by such holder shall forthwith mature and become due and payable,
together with interest accrued thereon and the applicable Make Whole Amount with
respect to such Notes, without presentment, demand, protest or further notice,
which are hereby waived.
At any time after the principal of, and interest accrued on, any of the
Notes are declared due and payable, the Required Holders by written notice to
the Obligors, may rescind and annul any such declaration and its consequences if
(x) the Obligors have paid all overdue interest on the Notes, the principal of
and Make Whole Amount, if any, on any such Notes which have become due otherwise
than by reason of such declaration, and interest on such overdue principal and
Make Whole Amount and (to the extent permitted by applicable law) overdue
interest, at a rate per annum equal to the Overdue Rate, (y) all Events of
Default, other than nonpayment of amounts which have become due solely by reason
of such declaration, and all Defaults have been cured or waived, and (z) no
judgment or decree has been entered for the payment of any monies due pursuant
to the Notes or this Agreement; but no such rescission and annulment shall
extend to or affect any subsequent Default or Event of Default or impair any
right consequent thereon.
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ARTICLE XII
REMEDIES ON DEFAULT; RECOURSE, ETC.
In case any one or more Defaults or Events of Default shall occur and be
continuing, (i) the holder of any Note at the time outstanding may proceed to
protect and enforce the rights of such holder by an action at law, suit in
equity or other appropriate proceeding, whether for the specific performance of
any agreement contained herein or in such Note, or for an injunction against a
violation of any of the terms hereof or thereof, or in aid of the exercise of
any power granted hereby or thereby or by law or otherwise, and (ii) the
Collateral Agent and the holders of the Notes may exercise any rights or
remedies in their respective capacities under the Security Documents in
accordance with the provisions thereof. No course of dealing and no delay on the
part of any holder of any Note in exercising any right, power or remedy shall
operate as a waiver thereof or otherwise prejudice such holder's rights, powers
or remedies. No right, power or remedy conferred by this Agreement or by any
Note upon any holder thereof shall be exclusive of any other right, power or
remedy referred to herein or therein or now or hereafter available at law, in
equity, by statute or otherwise.
ARTICLE XIII
DEFINITIONS
Section 13.1. General Definitions. As used herein the following terms
have the following respective meanings:
"Accepting Holders": the meaning specified in SECTION 9.4(b).
"Acquired Debt": with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person merged
with or into or became a Subsidiary of such specified Person, including
Indebtedness incurred in connection with, or in contemplation of, such other
Person merging with or into or becoming a Subsidiary of such specified Person
and (ii) Indebtedness encumbering any asset acquired by such specified Person.
"Acquisition Facility": the revolving credit/term loan facility of
the Company provided for in the Credit Agreement for the purpose of financing
acquisitions of Persons or assets in businesses similar to the Company.
"Actual Acquisition Expense": means an amount equal to the
personnel expenses and non personnel costs and expenses (which would be deducted
from gross profits in calculating costs and EBITDA) related to the operation of
any Asset Acquisition from the beginning of the Applicable Period to the date of
the purchase of the Asset Acquisition.
"Affiliate": as applied to any Person, any other Person directly
or indirectly controlling or controlled by or under common control with such
Person, provided that, for purposes of this definition, "control" (including,
with correlative meanings, the terms "controlled by" and
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"under common control with") as used with respect to any Person shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether as a general
partner or through the ownership of voting securities or by contract or
otherwise. As applied to the Company, "Affiliate" includes without limitation
the General Partner and the Public Partnership.
"Allocable Excess Proceeds": with respect to Excess Sale Proceeds
and Excess Taking Proceeds, a principal amount of Notes determined by allocating
such Excess Sale Proceeds or Excess Taking Proceeds, as the case may be, pro
rata among the holders of all Notes and Parity Debt (assuming, with respect to
revolving debt, that the maximum commitment amount is outstanding), if any,
outstanding on the date the applicable prepayment referred to in SECTION 9.3 is
to be made, according to the aggregate then unpaid principal amounts of the
Notes and Parity Debt, respectively.
"AmeriGas": AmeriGas Propane, Inc., a Delaware corporation, prior
to its merger with the Company.
"AmeriGas Finance": AmeriGas Finance Corp., a Delaware corporation
and a Wholly-Owned Subsidiary of the Public Partnership.
"AmeriGas, Inc.": AmeriGas, Inc., a Pennsylvania corporation.
"Annual Limit": the meaning specified in SECTION 10.3(c).
"Applicable Period": means the relevant time period employed in
connection with the calculation of EBITDA.
"Asset Acquisition": (a) an Investment by the Company or any
Restricted Subsidiary in any other Person pursuant to which such Person shall
become a Restricted Subsidiary or shall be merged with or into the Company or
any Restricted Subsidiary, (b) the acquisition by the Company or any Restricted
Subsidiary of the assets of any Person (other than a Restricted Subsidiary)
which constitute all or substantially all of the assets of such Person or (c)
the acquisition by the Company or any Restricted Subsidiary of any division or
line of business of any Person (other than a Restricted Subsidiary).
"Asset Sale": the meaning specified in SECTION 10.7(c).
"Assets": the assets of the Obligors and their respective
Subsidiaries used in the conduct of the Business.
"Attributable Debt": with respect to any Sale and Lease-Back
Transaction not involving a Capital Lease, as of any date of determination, the
total obligation (discounted to present value at the rate of interest implicit
in the lease included in such transaction) of the lessee for rental payments
(other than amounts required to be paid on account of property taxes,
maintenance, repairs, insurance, assessments, utilities, operating and labor
costs and other items which do not constitute payments for property rights)
during the remaining portion of the term (including
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extensions which are at the sole option of the lessor) of the lease included in
such transaction (in the case of any lease which is terminable by the lessee
upon the payment of a penalty, such rental obligation shall also include the
amount of such penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may be so
terminated).
"Available Cash": with respect to any calendar quarter, (a) the
sum of (i) all cash of the Company and the Restricted Subsidiaries on hand at
the end of such quarter, and (ii) all additional cash of the Company and the
Restricted Subsidiaries on hand on the date of determination of Available Cash
with respect to such quarter resulting from borrowings subsequent to the end of
such quarter, less (b) the amount of cash reserves that is necessary or
appropriate in the reasonable discretion of the General Partner to (i) provide
for the proper conduct of the business of the Company and the Restricted
Subsidiaries (including reserves for future capital expenditures and reserves
necessary to fund expenditures required from Excess Sale Proceeds pursuant to
SECTION 10.7(c)) subsequent to such quarter, (ii) provide funds for
distributions under SECTIONS 5.3(a), (b) and (c) or 5.4(a) of the partnership
agreement of the Public Partnership (such Sections as in effect on the date of
the Closing, together with all related definitions, are hereby incorporated
herein in the form included in such partnership agreement on the date of the
Closing and without regard to any subsequent amendments or waivers of the
provisions of, or any termination of, such partnership agreement) in respect of
any one or more of the next four quarters or (iii) comply with applicable law or
any debt instrument or other agreement or obligation to which the Company or any
Restricted Subsidiary is a party or its assets are subject; provided, however,
that Available Cash attributable to any Restricted Subsidiary shall be excluded
to the extent dividends or distributions of such Available Cash by such
Restricted Subsidiary are not at the date of determination permitted by the
terms of its charter or any agreement, instrument, judgment, decree, order,
statute, Rule or other regulation; and provided, further, that Available Cash
shall reflect in each calendar quarter a reserve equal to at least 50% of the
aggregate amount of all interest in respect of the 1995 Notes, the 1999 Notes
and the Notes to be paid in the next calendar quarter.
"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 under 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.
"Bankruptcy Law": the meaning specified in SECTION 11(g).
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"Business": the meaning specified in the first paragraph of this
Agreement.
"Business Day": any day other than a Saturday, a Sunday or a day
on which commercial banks in New York City or Philadelphia, Pennsylvania are
required or authorized by law or other government action to be closed.
"Capital Lease": as applied to any Person, any lease of any
property (whether real, personal or mixed) by such Person (as lessee or
guarantor or other surety) which would, in accordance with GAAP, be required to
be classified and accounted for as a capital lease on a balance sheet of such
Person.
"Capital Stock": with respect to any Person, any and all shares,
units representing interests, participations, rights in or other equivalents
(however designated) of such Person's capital stock, including, with respect to
partnerships, partnership interests (whether general or limited) and any other
interest or participation that confers upon a Person the right to receive a
share of the profits and losses of, or distributions of assets of, such
partnership, and any rights (other than debt securities convertible into capital
stock), warrants or options exchangeable for or convertible into such capital
stock.
"Cash Equivalents": the meaning specified in SECTION 10.3(a).
"CERCLA": the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. Section 9601 et seq., as the same may be
amended from time to time.
"Change of Control": (i) the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Public Partnership
or the Company to any Person or group (as such term is used in Section 13(d)(3)
of the Exchange Act) other than Permitted Holders or any Person of which
Permitted Holders beneficially own in the aggregate 51% or more of the Voting
Stock, (ii) the merger or consolidation of the Public Partnership or the Company
with another partnership or corporation other than a Permitted Holder or any
Person of which Permitted Holders beneficially own in the aggregate 51% or more
of the Voting Stock, (iii) the liquidation or dissolution of the Public
Partnership, the Company or the General Partner and (iv) the occurrence of any
transaction, the result of which is that Permitted Holders beneficially own in
the aggregate, directly or indirectly, less than 51% of the Voting Stock of the
General Partner.
"Closing": the meaning specified in ARTICLE III.
"Code": the Internal Revenue Code of 1986, as the same may be
amended from time to time.
"Collateral Agent": Bank of America National Trust and Savings
Association, a national banking association, as Collateral Agent under the
Intercreditor Agreement.
"Commission": the Securities and Exchange Commission.
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"Company": AmeriGas Propane, L.P., a Delaware limited partnership.
"Company Financials": the meaning specified in SECTION 10.22(b).
"Confidential Information": the meaning specified in SECTION 8.2.
"Consenting Party": the meaning specified in SECTION 21.9(a).
"Consolidated Cash Flow": with respect to the Company and the
Restricted Subsidiaries for any period, (1) the sum of, without duplication, the
amounts for such period, taken as a single accounting period, of (a)
Consolidated Net Income, (b) Consolidated Non-cash Charges, (c) Consolidated
Interest Expense and (d) Consolidated Income Tax Expense less (2) any non-cash
items increasing Consolidated Net Income for such period to the extent that such
items constitute reversals of a Consolidated Non-cash Charge for a previous
period and which were included in the computation of Consolidated Cash Flow for
such previous period pursuant to the provisions of the preceding clause (b).
Consolidated Cash Flow shall be calculated after giving effect, on a pro forma
basis for the four full fiscal quarters immediately preceding the date of the
transaction giving rise to the need to calculate Consolidated Cash Flow, to,
without duplication, any Asset Sales or Asset Acquisitions (including without
limitation any Asset Acquisition giving rise to the need to make such
calculation as a result of the Company or one of its Restricted Subsidiaries
(including any Person who becomes a Restricted Subsidiary as a result of the
Asset Acquisition) incurring, assuming or otherwise being liable for Acquired
Debt) occurring during the period commencing on the first day of such period to
and including the date of the transaction (the "Reference Period"), as if such
Asset Sale or Asset Acquisition occurred on the first day of the Reference
Period; provided, however, that Consolidated Cash Flow generated by an acquired
business or asset shall be determined by the actual gross profit (revenues minus
cost of goods sold) of such acquired business or asset during the immediately
preceding four full fiscal quarters in the Reference Period minus the pro forma
expenses that would have been incurred by the Company and the Restricted
Subsidiaries in the operation of such acquired business or asset during such
period computed on the basis of personnel expenses for employees retained or to
be retained by the Company and the Restricted Subsidiaries in the operation of
such acquired business or asset and non-personnel costs and expenses incurred by
the Company and the Restricted Subsidiaries in the operation of the Company's
business at similarly situated Company facilities or Restricted Subsidiary
facilities (as determined in good faith by the General Partner based upon
reasonable assumptions). See SECTION 13.2.
"Consolidated Income Tax Expense": with respect to the Company and
the Restricted Subsidiaries for any period, the provision for federal, state,
local and foreign income taxes of the Company and the Restricted Subsidiaries
for such period as determined on a consolidated basis in accordance with GAAP.
See SECTION 13.2.
"Consolidated Interest Expense": with respect to the Company and
the Restricted Subsidiaries for any period, without duplication, the sum of (i)
the interest expense of the Company and the Restricted Subsidiaries for such
period as determined on a consolidated basis in accordance with GAAP, including
without limitation (a) any amortization of debt discount, (b) the net cost under
Interest Rate Agreements, (c) the interest portion of any deferred payment
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obligation, (d) all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing and (e) all
accrued interest and (ii) the interest component of Capital Leases paid, accrued
or scheduled to be paid or accrued by the Company and its Restricted
Subsidiaries during such period as determined on a consolidated basis in
accordance with GAAP. See SECTION 13.2.
"Consolidated Net Income": the net income of the Company and the
Restricted Subsidiaries, as determined on a consolidated basis in accordance
with GAAP and after provision for minority interests and as adjusted to exclude
(i) net after-tax extraordinary gains or losses, (ii) net after-tax gains or
losses attributable to Asset Sales, (iii) the net income or loss of any Person
which is not a Restricted Subsidiary and which is accounted for by the equity
method of accounting, provided that Consolidated Net Income shall include the
amount of dividends or distributions actually paid to the Company or any
Restricted Subsidiary, (iv) the net income or loss prior to the date of
acquisition of any Person combined with the Company or any Restricted Subsidiary
in a pooling of interest, (v) the net income of any Restricted Subsidiary to the
extent that dividends or distributions of such net income are not at the date of
determination permitted by the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or other regulation and (vi)
the cumulative effect of any changes in accounting principles. See SECTION 13.2.
"Consolidated Net Worth": of any Person, at any date of
determination, the total partners' equity (in the case of a partnership) or
stockholders' equity (in the case of a corporation) of such Person at such date,
as would be shown on a balance sheet (consolidated, if applicable) of such
Person and, if applicable, its Subsidiaries (Restricted Subsidiaries in the case
of the Company) prepared in accordance with GAAP (less, in the case of the
Company, the Net Amount of Unrestricted Investment as of such date). See SECTION
13.2.
"Consolidated Non-cash Charges": with respect to the Company and
the Restricted Subsidiaries for any period, the aggregate depreciation,
amortization and any other charge which would not be required to be paid in cash
in a future period, in each case reducing Consolidated Net Income of the Company
and the Restricted Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP. See SECTION 13.2.
"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 of any other
Indebtedness (a) including actual payments under 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.
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"Contribution Agreement": the Merger and Contribution Agreement,
dated as of the date of the 1995 Closing among AmeriGas, AGP-2, CalGas
Corporation of America, Propane Transport, Inc., the Company and the other
signatories thereto, as the same may from time to time be amended, supplemented
or otherwise modified in accordance with the terms thereof and hereof.
"Control Affiliate": UGI, the Public Partnership, the General
Partner and any Person controlling or controlled by, or under common control
with, UGI, the Public Partnership or the General Partner (other than the Company
or any of its Subsidiaries).
"Conveyance Agreements": (a) the Conveyance and Contribution
Agreement, dated as of the date of the 1995 Closing, among Petrolane, the Public
Partnership, the Company and certain other parties and (b) each of the
individual bills of sale and other conveyance documents delivered to the Company
pursuant to the Conveyance and Contribution Agreement referred to in the
foregoing clause (a), in each case as the same may from time to time be amended,
supplemented or otherwise modified in accordance with the terms thereof and
hereof.
"Credit Agreement": the Amended and Restated Credit Agreement
dated as of September 15, 1997, among the Obligors, Petrolane, Bank of America
National Trust and Savings Association, as agent, and the financial institutions
which are or become parties from time to time thereto, evidencing the
Acquisition Facility and the Revolving Credit Facility, as the same may be
amended, supplemented or otherwise modified from time to time.
"Default": any event or circumstance described in ARTICLE XI which
with the lapse of any time period specified in ARTICLE XI, or the giving of any
notice specified in ARTICLE XI, or with both such notice and lapse of time,
would constitute an Event of Default.
"Designation Amounts": the meaning specified in SECTION 10.21(a).
"Designee": the meaning specified in SECTION 10.21(d).
"Disinterested Directors": with respect to any transaction or
series of transactions with Affiliates of the Company, a member of the Board of
Directors of the General Partner who has no financial interest, and whose
employer has no financial interest, in such transaction or series of
transactions.
"Dollar" and sign "$": lawful money of the United States of
America.
"EBIT": means, for any period, the Company's and its Restricted
Subsidiaries' consolidated net income (not including extraordinary gains or
losses) plus interest charges and income tax expense in each case for such
period, as determined in accordance with GAAP.
"EBITDA": means, for any period, EBIT plus the Company's and its
Restricted Subsidiaries' depreciation and amortization of property, plant and
equipment and intangible assets, in each case as taken into account in
calculating Consolidated Net Income, in each case for such period, as determined
in accordance with GAAP. For the purpose of calculating
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EBITDA for any period (the "Applicable Period"), EBITDA shall be adjusted by the
addition of the EBITDA of any Asset Acquisitions made during the Applicable
Period, as if such Asset Acquisitions occurred on the first day of the
Applicable Period plus the addition of the "Savings Factor". The "Savings
Factor" shall equal, with respect to any Asset Acquisition, an amount equal to
50% of the difference between (a) Actual Acquisition Expense minus (b) Pro Forma
Acquisition Expense.
"Environmental Laws": applicable federal, state, local and foreign
laws, rules or regulations as amended from time to time, relating to emissions,
discharges, releases, threatened releases, removal, remediation or abatement of
pollutants, contaminants, chemicals or industrial, toxic or hazardous substances
or wastes into or in the environment (including without limitation air, surface
water, ground water or land), or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, chemicals or industrial, toxic or
hazardous substances or wastes.
"ERISA": the Employee Retirement Income Security Act of 1974, as
the same may be amended from time to time.
"Event Notice": the meaning specified in SECTION 9.9(c).
"Event of Default": the meaning specified in ARTICLE XI.
"Excess Proceeds": the meaning specified in SECTION 9.3(b).
"Excess Sale Proceeds": the meaning specified in SECTION 10.7(c).
"Excess Taking Proceeds": the meaning specified in SECTION 9.3(b).
"Exchange Act": the Securities Exchange Act of 1934, as the same
may be amended from time to time.
"Financing Documents": this Agreement, the Other Agreements, the
Security Documents and the Notes.
"Funded Debt": as applied to any Person, all Indebtedness of such
Person which by its terms or by the terms of any instrument or agreement
relating thereto matures one year or more from the date of execution of the
instruments governing any such Indebtedness or, if applicable, the execution of
any instrument extending the maturity date of such Indebtedness, provided that
Funded Debt shall include any Indebtedness which does not otherwise come within
the foregoing definition but which is directly or indirectly renewable or
extendible at the option of the debtor to a date one year or more (including an
option of the debtor under a revolving credit or similar agreement obligating
the lender or lenders to extend credit over a period of one year or more) from
the date of execution of the instruments governing any such Indebtedness or, if
applicable, the execution of any instrument extending the maturity date of such
Indebtedness.
"GAAP": the meaning specified in SECTION 13.2.
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"General Collateral": collectively, the Mortgaged Property, and
the properties referred to as the "Collateral" in the General Security Agreement
and each Subsidiary Security Agreement and as the "Security" in the
Intercreditor Agreement.
"General Partner": AmeriGas Propane, Inc., a Pennsylvania
corporation.
"General Security Agreement": the General Security Agreement
referred to in SECTION 4.7, as the same may be amended, supplemented or
otherwise modified from time to time.
"Governmental Authority": any governmental agency, authority,
instrumentality or regulatory body, other than a court or other tribunal, in
each case whether federal, state, local or foreign.
"Guaranty": as applied to any Person, any direct or indirect
liability, contingent or otherwise, of such Person with respect to any
Indebtedness, lease, cash dividend or other obligation of another, including
without limitation (a) any such obligation directly or indirectly guaranteed or
endorsed (otherwise than for collection or deposit in the ordinary course of
business) by such Person, or in respect of which such Person is otherwise
directly or indirectly liable, (b) any other obligation under any contract
which, in economic effect, is substantially equivalent to a guaranty, including
without limitation any such obligation of a partnership in which such Person is
a general partner or of a joint venture in which such Person is a joint
venturer, or (c) any obligation in effect guaranteed by such Person through any
agreement (contingent or otherwise) to purchase, repurchase or otherwise acquire
such obligation or any security therefor, or to provide funds for the payment or
discharge of such obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise), or to maintain the solvency or
any balance sheet or other financial condition of the obligor of such
obligation, or to make payment for any products, materials or supplies or for
any transportation or services regardless of the non-delivery or nonfurnishing
thereof, in any such case if the purpose or intent of such agreement is to
provide assurance that such obligation will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such
obligation will be protected against loss in respect thereof.
"Hazardous Substance": any substance so designated pursuant to
CERCLA, asbestos, petroleum, urea formaldehyde insulation and petroleum
by-products (other than propane).
"holder": the meaning specified in SECTION 14.1.
"Incorporated Covenant": the meaning specified in SECTION 10.22(e)
"Indebtedness": as applied to any Person (without duplication):
(a) any indebtedness for borrowed money and all obligations
evidenced by any bond, note, debenture or other similar instrument
which such Person has directly or indirectly created, incurred or
assumed;
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(b) any indebtedness for borrowed money and all obligations
evidenced by any bond, note, debenture or other similar instrument
secured by any Lien in respect of property owned by such Person,
whether or not such Person has assumed or become liable for the
payment of such indebtedness, provided that the amount of such
Indebtedness, if such Person has not assumed the same or become
liable therefor, shall in no event be deemed to be greater than
the fair market value from time to time (as determined in good
faith by such Person) of the property subject to such Lien;
(c) any indebtedness, whether or not for borrowed money
(excluding trade payables and accrued expenses arising in the
ordinary course of business), with respect to which such Person
has become directly or indirectly liable and which represents the
deferred purchase price (or a portion thereof) or has been
incurred to finance the purchase price (or a portion thereof) of
any property or service or business acquired by such Person,
whether by purchase, consolidation, merger or otherwise;
(d) the principal component of any obligations under
Capital Leases to the extent such obligations would, in accordance
with GAAP, appear on a balance sheet of such Person;
(e) all Attributable Debt of such Person in respect of Sale
and Lease-Back Transactions not involving a Capital Lease;
(f) all Redeemable Capital Stock of such Person valued at
the greater of its voluntary or involuntary maximum fixed
repurchase price plus accrued dividends;
(g) any Preferred Stock of any Subsidiary of such Person
valued at the liquidation preference thereof, or any mandatory
redemption payment obligations in respect thereof plus, in either
case, accrued dividends thereon;
(h) any indebtedness of the character referred to in clause
(a), (b), (c), (d), (e), (f) or (g) of this definition deemed to
be extinguished under GAAP but for which such Person remains
legally liable;
(i) any indebtedness of any other Person of the character
referred to in clause (a), (b), (c), (d), (e), (f), (g) or (h) of
this definition with respect to which the Person whose
Indebtedness is being determined has become liable by way of a
Guaranty; and
(j) any amendment, supplement, modification, deferral,
renewal, extension or refunding of any liability of the types
referred to in clauses (a) through (i) above.
For purposes hereof, the "maximum fixed repurchase price" of any
Redeemable Capital Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Redeemable Capital Stock as if
such Redeemable Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Agreement and if such price
is based upon, or measured by, the fair market value of such Redeemable
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Capital Stock, such fair market value shall be determined in good faith by the
board of directors or a similar governing body of the issuer of such Redeemable
Capital Stock.
"Indemnified Liabilities": the meaning specified in SECTION 16.3.
"Indemnitee" and "Indemnitees": the meaning specified in SECTION
16.3.
"Institutional Investor": any insurance company, investment
company, pension trust or fund, bank, trust company, mutual fund, or any
portfolio or fund managed by any of the foregoing; provided, however, that a
Person engaged exclusively in short-term money market investments shall not be
deemed to be an Institutional Investor.
"Intercreditor Agreement": the Intercreditor and Agency Agreement,
dated as of the date of the 1995 Closing, by and among the Obligors, Petrolane,
the Restricted Subsidiaries, you, the Other Purchasers, the holders of the 1995
Notes, the holders of the 1999 Notes, the Agent and the Collateral Agent,
substantially in the form of EXHIBIT D, as the same may be amended, supplemented
or otherwise modified from time to time.
"Interest Rate Agreement": any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement designed to protect the Company against fluctuations in
interest rates on Parity Debt.
"Investment": as applied to any Person, any direct or indirect
purchase or other acquisition by such Person of stock or other securities of any
other Person, or any direct or indirect loan, advance or capital contribution by
such Person to any other Person, and any other item which would be classified as
an "investment" on a balance sheet of such Person prepared in accordance with
GAAP, including without limitation any direct or indirect contribution by such
Person of property or assets to a joint venture, partnership or other business
entity in which such Person retains an interest (it being understood that a
direct or indirect purchase or other acquisition by such Person of assets of any
other Person (other than stock or other securities) shall not constitute an
"Investment" for purposes of this Agreement). For the purposes of SECTION
10.3(c), the amount involved in Investments made during any period shall be the
aggregate cost to the Company and its Restricted Subsidiaries of all such
Investments made during such period, determined in accordance with GAAP, but
without regard to unrealized increases or decreases in value, or write-ups,
write-downs or write-offs, of such Investments and without regard to the
existence of any undistributed earnings or accrued interest with respect thereto
accrued after the respective dates on which such Investments were made, less any
net return of capital realized during such period upon the sale, repayment or
other liquidation of such Investments (determined in accordance with GAAP, but
without regard to any amounts received during such period as earnings (in the
form of dividends not constituting a return of capital, interest or otherwise)
on such Investments or as loans from any Person in whom such Investments have
been made).
"Investment Condition": the meaning specified in SECTION 10.21(a).
"Investment Limit": the meaning specified in SECTION 10.3(c).
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"License Agreements": collectively, (a) the License Agreement
dated as of the date of the 1995 Closing, by and among the General Partner, the
Public Partnership and the Company relating to the FAST and Stars I and II
proprietary software systems, (b) the Trademark License Agreement, dated the
date of 1995 Closing, by and among Petrolane, the General Partner, the Public
Partnership and the Company, (c) the Trademark License Agreement, dated the date
of the 1995 Closing, by and among UGI, AmeriGas, Inc., the General Partner, the
Public Partnership and the Company and (d) the Trademark License Agreement dated
the date of the 1995 Closing, by and among the General Partner, the Public
Partnership and the Company.
"Lien": as to any Person, any mortgage, lien (statutory or
otherwise), pledge, reservation, right of entry, encroachment, easement, right
of way, restrictive covenant, license, charge, security interest or other
encumbrance in or on, or any interest or title of any vendor, lessor, lender or
other secured party to or of such Person under any conditional sale or other
title retention agreement or Capital Lease with respect to, any property or
asset owned by such Person. For the purposes of this Agreement, a Person shall
be deemed to be the owner of any asset which it has placed in trust for the
benefit of the holders of Indebtedness of such Person and such trust shall be
deemed to be a Lien if such Indebtedness is deemed to be extinguished under GAAP
and such Person remains legally liable therefor.
"Make Whole Amount": with respect to any Note, an amount equal to
the excess, if any, of the Discounted Value of the Called Principal of such Note
over the sum of (i) such Called Principal plus (ii) interest accrued thereon as
of (including without limitation interest due on) the Settlement Date with
respect to such Called Principal. The Make Whole Amount shall in no event be
less than zero. The following terms are used in computing the Make Whole Amount:
"Called Principal": with respect to any Note, the principal
of such Note that is to be prepaid or purchased pursuant to
SECTION 9.2 or 9.3 or becomes or is declared to be immediately due
and payable pursuant to SECTION 11, as the context requires.
"Discounted Value": with respect to the Called Principal of
any Note, the amount obtained by discounting all Remaining
Scheduled Payments with respect to such Called Principal from
their respective scheduled due dates to the Settlement Date with
respect to such Called Principal, in accordance with accepted
financial practice and at a discount factor (applied on a
semi-annual basis) equal to the Reinvestment Yield with respect to
such Called Principal.
"Reinvestment Yield": "Reinvestment Yield" means, with
respect to the Called Principal of any Note, 0.60% over the yield
to maturity in the case of a prepayment pursuant to SECTION 9.2
and 0.75% over the yield to maturity in all other cases, implied
in any such case by (a) the yields reported, as of 10:00 A.M. (New
York City time) on the second Business Day preceding the
Settlement Date with respect to such Called Principal, on the
display designated as "Page PX1" of the Bloomberg Financial
Markets Services Screen (or, if not available, any other national
recognized trading screen reporting on-line intraday trading in
the U.S. Treasury securities) for on-the-run U.S. Treasury
securities having a maturity equal to the Remaining Average Life
of such Called Principal as of such Settlement Date, or (b) if
such yields are not reported as of such time or the yields
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reported as of such time are not ascertainable, the Treasury
Constant Maturity Series Yields reported, for the latest day for
which such yields have been so reported as of the second Business
Day preceding the Settlement Date with respect to such Called
Principal, in Federal Reserve Statistical Release H.15 (519) (or
any comparable successor publication) for on-the-run U.S. Treasury
securities having a constant maturity equal to the Remaining
Average Life of such Called Principal as of such Settlement Date.
Such implied yield shall be determined, if necessary, by (i)
converting U.S. Treasury bill quotations to bond-equivalent yields
in accordance with accepted financial practice and (ii)
interpolating linearly between (A) the on-the-run U.S. Treasury
security with the maturity closest to and greater than the
Remaining Average Life and (B) the on-the-run U.S. Treasury
security with the maturity closest to and less than the Remaining
Average Life.
"Remaining Average Life": with respect to the Called
Principal of any Note, the number of years (calculated to the
nearest one-twelfth year) obtained by dividing (i) such Called
Principal into (ii) the sum of the products obtained by
multiplying (a) each Remaining Scheduled Payment of such Called
Principal (but not of interest thereon) by (b) the number of years
(calculated to the nearest one-twelfth year) which will elapse
between the Settlement Date with respect to such Called Principal
and the scheduled due date of such Remaining Scheduled Payment.
"Remaining Scheduled Payments": with respect to the Called
Principal of any Note, all payments of such Called Principal and
interest thereon that would be due on or after the Settlement Date
with respect to such Called Principal if no payment of such Called
Principal were made prior to its scheduled due date.
"Settlement Date": shall mean, with respect to the Called
Principal of any Note, the date on which such Called Principal is
to be prepaid or purchased pursuant to SECTION 9.2 or 9.3 or
becomes or is declared to be immediately due and payable pursuant
to ARTICLE XI, as the context requires.
"Material Adverse Effect": (a) a material adverse effect on the
business, assets or financial condition of the Company and the Restricted
Subsidiaries taken as a whole, (b) a material impairment of the ability
of the Company or any Restricted Subsidiary to perform any of its
obligations under this Agreement, the Notes or the other Financing
Documents to which it is a party or (c) a material impairment of the
legal, valid, binding and enforceable nature of the Security Documents or
of the validity and priority of the Liens created thereby on the General
Collateral.
"Memorandum": the meaning specified in SECTION 5.4.
"Mortgages": the meaning specified in the definition of Security
Documents.
"Mortgaged Property": the properties referred to as the "Mortgaged
Property" in the granting clauses of the Mortgages.
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"Multiemployer Plan": a Plan which is a "multiemployer plan"
within the meaning of Section 4001(a)(3) of ERISA.
"Net Amount of Unrestricted Investment": the sum of, without
duplication, (x) the aggregate amount of all Investments made after the date
hereof pursuant to SECTION 10.3(h) (computed as provided in the last sentence of
the definition of Investment) and (y) the aggregate of all Designation Amounts
in connection with the designation of Unrestricted Subsidiaries pursuant to the
provisions of SECTION 10.21 less all Designation Amounts in respect of
Unrestricted Subsidiaries which have been designated as Restricted Subsidiaries
in accordance with the provisions of SECTION 10.21 and otherwise reduced in a
manner consistent with the provisions of the last sentence of the definition of
Investment.
"Net Proceeds": with respect to any Asset Sale, the proceeds
thereof in the form of cash or Cash Equivalents including payments in respect of
deferred payment obligations when received in the form of cash or Cash
Equivalents net of (i) brokerage commissions and other fees and expenses
(including without limitation fees and expenses of legal counsel and accountants
and fees, expenses and discounts or commissions of underwriters, placement
agents and investment bankers) related to such Asset Sale, (ii) provisions for
all taxes payable as a result of such Asset Sale, (iii) amounts required to be
paid to any Person (other than the Company or any Restricted Subsidiary) owning
a beneficial interest in the assets subject to such Asset Sale, (iv) appropriate
amounts to be provided by the Company or any Restricted Subsidiary, as the case
may be, as a reserve required in accordance with GAAP against any liabilities
associated with such Asset Sale and retained by the Company or any Restricted
Subsidiary, as the case may be, after such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale and (v) amounts required to be
applied to the repayment of Indebtedness (other than the Notes and the Parity
Debt) secured by a Lien on the asset or assets sold in such Asset Sale.
"1995 Closing": April 19, 1995.
"1995 Note Agreement": those certain Note Agreements each dated as
of April 12, 1995 among the Obligors, Petrolane and the purchasers named in
Schedule I thereto, as the same may from time to time be amended, supplemented
or otherwise modified in accordance with the terms thereof and hereof.
"1995 Notes": the notes issued pursuant to the 1995 Note
Agreement.
"1999 Note Agreement": those certain Note Agreements each dated as
of March 15, 1999 among the Obligors and the purchasers named in Schedule I
thereto, as the same may from time to time be amended, supplemented or otherwise
modified in accordance with the terms thereof and hereof.
"1999 Notes": the notes issued pursuant to the 1999 Note
Agreement.
"Non-Accepting Holders": the meaning specified in SECTION 9.4(a).
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"Note Offer": the meaning specified in SECTION 9.8.
"Notes": the meaning specified in ARTICLE I.
"Obligor and Obligors": the respective meanings specified in
ARTICLE I.
"Officers' Certificate": as to any corporation, a certificate
executed on its behalf by the Chairman of the Board of Directors (if an officer)
or its President or one of its Vice Presidents, and its Treasurer, or
Controller, or one of its Assistant Treasurers or Assistant Controllers, and, as
to any partnership, a certificate executed on behalf of such partnership by its
general partner in a manner which would qualify such certificate (a) if such
general partner is a corporation, as an Officers' Certificate of such general
partner hereunder or (b) if such general partner is a partnership or other
entity, as a certificate executed on its behalf by Persons authorized to do so
pursuant to the constituting documents of such partnership or other entity.
"Operative Agreements": the Contribution Agreement, the Conveyance
Agreements, the Partnership Agreement and the License Agreements.
"Other Agreements": the meaning specified in ARTICLE II.
"Other Holder Notice": the meaning specified in SECTION 9.9(b).
"Other Purchasers": the meaning specified in ARTICLE II.
"Overdue Rate": as to any Notes an annual rate of interest equal
to the greater of (x) 1% plus the stated interest on the Notes and (y) 1% over
the rate from time to time in effect and publicly announced by The Chase
Manhattan Bank as its prime rate.
"Parity Debt": Indebtedness of the Company incurred in accordance
with SECTION 10.1(a), 10.1(b), 10.1(e) or 10.1(f)(i) and 10.1(f)(ii) and secured
by the respective Liens of the Security Documents in accordance with SECTION
10.2(j), (k), (l) or (m).
"Partnership Agreement": the Amended and Restated Agreement of
Limited Partnership of the Company, as in effect on the date of the Closing, and
as the same may from time to time be amended, supplemented or otherwise
modifiedin accordance with the terms thereof and hereof.
"Partnership Unrestricted Subsidiaries": the Unrestricted
Subsidiaries of the Public Partnership as defined in the Public Partnership
Indenture as in effect on the date of the Closing.
"PBGC": the Pension Benefit Guaranty Corporation or any
Governmental Authority succeeding to any of its functions.
"Permits": the meaning specified in SECTION 5.8(a).
"Permitted Banks": the meaning specified in SECTION 10.3(a).
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"Permitted Encumbrances": the Liens upon, and exceptions to, title
to the Assets described in the Security Documents and the Operative Agreements.
"Permitted Holders": UGI and its Subsidiaries.
"Permitted Insurers": insurers with ratings of A or better
according to Best's Insurance Reports, or with comparable ratings from a
comparable rating agency for insurance companies whose principal offices are
located outside of the United States of America and Canada, and with assets of
no less than $500 million (or the equivalent in other currencies), and the
underwriters at Lloyd's London.
"Person": a corporation, a firm, a joint venture, an association,
a partnership, an organization, a business, a trust or other entity or
enterprise, an individual, a government or political subdivision thereof or a
Governmental Authority, department or instrumentality.
"Petrolane": Petrolane Incorporated, a Pennsylvania corporation.
"Plan": an "employee benefit plan" (as defined in Section 3 of
ERISA) which is or has been established or maintained, or to which contributions
are or have been made, by the Company or any Related Person or to which the
Company or any Related Person is or has been obligated to contribute, or an
employee benefit plan as to which the Company or any Related Person would be
treated as a contributory sponsor under Section 4069 or 4212 of ERISA if such
plan were terminated.
"Preferred Stock": as applied to the Capital Stock of any Person,
means Capital Stock of any class or classes (however designated), which is
preferred as to the payment of distributions or dividends, or upon any voluntary
or involuntary liquidation or dissolution of such Person, over shares or units
of Capital Stock of any other class of such Person.
"Pro Forma Acquisition Expense": means an amount equal to the
personnel and non personnel costs and expenses (which would be deducted from
gross profits in calculating costs and EBITDA) that would have been incurred
with respect to the operation of any Asset Acquisition for the period from the
beginning of the Applicable Period to the date of purchase of the Asset
Acquisition, on the assumption that the ongoing personnel and non personnel cost
and expense savings realized as of the date of the Asset Acquisition had been
realized on the first day of the Applicable Period. In no event shall the
aggregate Savings Factor for any Applicable Period exceed 10% of EBITDA for the
Company and its Restricted Subsidiaries for such Applicable Period.
"Pro Rata Option": the meaning specified in SECTION 9.4(b).
"Public Partnership": the meaning specified in the opening
paragraph hereof.
"Public Partnership Debt": at any time of determination,
Indebtedness of the Public Partnership and its Subsidiaries (other than the
Company and the Restricted Subsidiaries), including without limitation the
Public Partnership Notes.
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"Public Partnership Expenditure": the meaning specified in SECTION
10.22(c).
"Public Partnership Indenture": the Indenture among the Public
Partnership, AmeriGas Finance, and First Union National Bank, formerly known as
First Fidelity Bank, National Association, as trustee, with respect to the
Public Partnership Notes.
"Public Partnership Notes": the notes issued on the date of 1995
Closing, jointly and severally, by the Public Partnership and AmeriGas Finance,
in the aggregate principal amount of $100 million.
"PUHCA": the meaning specified in SECTION 5.16.
"Purchase Date": the meaning specified in SECTION 9.9(b).
"Purchase Event": either (a) the occurrence of a Change of Control
or (b) the occurrence, under any agreement or instrument relating to
Indebtedness of the Company, the Restricted Subsidiaries, the General Partner,
the Public Partnership (including without limitation the Public Partnership
Notes) or any of its Restricted Subsidiaries (as such term is defined in the
Public Partnership Indenture as in effect on the date of the Closing) of an
event under such agreement or instrument pursuant to which the holders of such
Indebtedness are entitled to require the Person issuing such Indebtedness (or
any of its Affiliates) to purchase, redeem or repurchase such Indebtedness as a
consequence of a "change of control" affecting the Company or any Control
Affiliate; provided that the occurrence of an event described in this clause (b)
shall not constitute a Purchase Event unless the aggregate principal amount of
all such Indebtedness which the Company, the Restricted Subsidiaries, the
General Partner, the Public Partnership and its Restricted Subsidiaries (as such
term is defined in the Public Partnership Indenture as in effect on the date of
the Closing) may be required to purchase, redeem or repurchase as a consequence
thereof exceeds $10,000,000.
"Purchase Money Lien": the meaning specified in SECTION 10.2(n).
"Purchase Notice": the meaning specified in SECTION 9.9(a).
"QPAM Exemption": the meaning specified in SECTION 6.2(c).
"Redeemable Capital Stock": as of any date of determination, any
shares of any class or series of Capital Stock, that, either by the terms
thereof, by the terms of any security into which such shares are convertible or
exchangeable or by contract or otherwise, are or upon the happening of an event
or passage of time would be, required to be redeemed prior to the stated
maturity with respect to the principal of any Note or are redeemable at the
option of the holder thereof at any time prior to the stated maturity of any
Note, or are convertible into or exchangeable for Indebtedness at any time prior
to the stated maturity of any Note.
"Related Person": any trade or business, whether or not
incorporated, which, as of any date of determination, would be treated as a
single employer together with the Company, under Section 414(b) or (c) of the
Code.
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"Required Holders": the holders of at least 51% in aggregate
principal amount of the Notes outstanding from time to time.
"Responsible Officer": with respect to any certificate, report,
notice or information to be delivered or given under this Agreement or knowledge
of any Default or Event of Default hereunder, the president, chief executive
officer, chief financial officer, senior vice president corporate development,
principal accounting officer or treasurer of the Company or other officer of the
Company or the General Partner involved principally in the Company's financial
administration or controllership function.
"Restricted Payment": with respect to each of the Company and the
Restricted Subsidiaries (the "Covered Persons"): (a) in the case of any Covered
Person that is a partnership, (i) any payment or other distribution, direct or
indirect, in respect of any partnership interest in such Covered Person, except
a distribution payable solely in additional partnership interests in such
Covered Person and (ii) any payment, direct or indirect, by such Covered Person
on account of the redemption, retirement, purchase or other acquisition of any
partnership interest in such Covered Person, except to the extent that such
payment consists of additional partnership interests in such Covered Person; or
(b) in the case of any Covered Person that is a corporation, (i) any dividend or
other distribution, direct or indirect, on account of any shares of any class of
stock of such Covered Person then outstanding, except a dividend payable solely
in shares of stock of such Covered Person, and (ii) any payment, direct or
indirect, by such Covered Person on account of the redemption, retirement,
purchase or other acquisition of any shares of any class of stock of such
Covered Person then outstanding, or of any warrants, rights or options to
acquire any such shares, except to the extent that such payment consists of
shares of Capital Stock of such Covered Person.
"Restricted Subsidiary": any Subsidiary of the Company organized
under the laws of the United States of America or any state thereof or Canada or
any province thereof or the District of Columbia, none of the Capital Stock or
ownership interests of which is owned by Unrestricted Subsidiaries and
substantially all of the operating assets of which are located in, and
substantially all of the business of which is conducted within, the United
States of America or Canada and which is designated as a Restricted Subsidiary
in SCHEDULE 5.2 or which shall be designated as a Restricted Subsidiary by the
General Partner at a subsequent date as provided in SECTION 10.21; provided,
however, that (a) to the extent a newly formed or acquired Subsidiary is not
declared either a Restricted Subsidiary or an Unrestricted Subsidiary within 90
days of its formation or acquisition, such Subsidiary shall be deemed a
Restricted Subsidiary and (b) a Restricted Subsidiary may be designated as an
Unrestricted Subsidiary in accordance with the provisions of SECTION 10.21.
"Revolving Credit Facility": any revolving credit facility of the
Company the proceeds of which are permitted to be used for working capital
purposes and for general purposes.
"Routine Permits": the meaning specified in SECTION 5.8(a).
"Sale and Lease-Back Transaction": of a Person (a "Transferor")
shall mean any arrangement (other than between the Company and a Wholly-Owned
Restricted Subsidiary or
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between Wholly-Owned Restricted Subsidiaries) whereby (a) property (the "Subject
Property") has been or is to be disposed of by such Transferor to any other
Person with the intention on the part of such Transferor of taking back a lease
of such Subject Property pursuant to which the rental payments are calculated to
amortize the purchase price of such Subject Property substantially over the
useful life of such Subject Property, and (b) such Subject Property is in fact
so leased by such Transferor or an Affiliate of such Transferor.
"Sale Condition": the meaning specified in SECTION 10.21(a).
"Securities Act": the Securities Act of 1933, as the same may be
amended from time to time.
"Security Documents": (a) the Intercreditor Agreement, (b) each of
(1) the mortgage, assignment of leases and rents, security agreement, financing
statement and fixture filings, (2) the deed of trust, assignment of leases and
rents, security agreement, financing statement and fixture filings and (3) the
deed to secure debt, assignment of leases and rents, security agreement,
financing statement and fixture filings, each made by the Company in favor of
the Collateral Agent, each dated as of the date of the 1995 Closing and covering
the Mortgaged Properties located in the counties listed on SCHEDULE 5.8(b),
those executed after the Closing as required by SECTION 10.15 and those executed
by Restricted Subsidiaries (rather than the Company) after the Closing as
required by SECTION 10.14, in each case substantially in the form of EXHIBIT E-1
and E-2, respectively (as each of the same may be amended, supplemented or
otherwise modified from time to time, a "Mortgage" and collectively, the
"Mortgages"), (c) the General Security Agreement, (d) the Subsidiary Security
Agreement, (e) the Subsidiary Guarantee and (f) any other instrument or
agreement which purports to grant to the Collateral Agent a security interest in
or a lien on property to secure any Note, 1995 Note, 1999 Note, Bank Note or
Parity Debt, or which is stated therein to be a Security Document.
"Significant Holder": (a) each original purchaser of Notes under
this Agreement or the Other Agreements, so long as such original purchaser shall
hold any Note, (b) any Affiliate of any such original purchaser so long as such
Affiliate shall hold any Note, and (c) any other holder of at least 1% of the
aggregate principal amount of the Notes then outstanding which is an
Institutional Investor.
"Significant Subsidiary Group": any Subsidiary of the Company
which is, or any group of Subsidiaries of the Company all of which are, at any
time of determination, subject to one or more of the proceedings or conditions
described in subdivision (g) or (h) of SECTION 11 and which Subsidiary or group
of Subsidiaries accounted for (or in the case of a recently formed or acquired
Subsidiary would have so accounted for on a pro forma basis) more than 1% of
consolidated operating revenues of the Company for the fiscal year most recently
ended or more than 1% of consolidated total assets of the Company as of the end
of the most recently ended fiscal quarter, in each case computed in accordance
with GAAP.
"Specified Mortgage": any Mortgage covering the Mortgaged Property
identified on SCHEDULE 5.8(e).
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"Subject Property": the meaning specified in the definition of
Sale and Lease-Back Transaction.
"Subsidiary": with respect to any Person, any corporation, limited
liability company, partnership, joint venture, association, trust or other
entity of which (or in which) more than 50% of (a) the issued and outstanding
Capital Stock having ordinary voting power to elect a majority of the board of
directors of such corporation (irrespective of whether at the time Capital Stock
of any other class or classes of such corporation shall or might have voting
power upon the occurrence of any contingency), (b) the interests in the capital
or profits of such partnership, limited liability company, joint venture or
association with ordinary voting power to elect a majority of the board of
directors (or Persons performing similar functions) of such partnership, limited
liability company, joint venture or association, or (c) the beneficial interests
in such trust or other entity with ordinary voting power to elect a majority of
the board of trustees (or Persons performing similar functions) of such trust or
other entity, is at the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries, or by one or
more of such Person's other Subsidiaries.
"Subsidiary Guarantee": the Restricted Subsidiary Guarantee
referred to in SECTION 4.7, as the same may be amended, supplemented or
otherwise modified from time to time.
"Subsidiary Security Agreement": the Subsidiary Security Agreement
referred to in SECTION 4.7, as the same may be amended, supplemented or
otherwise modified from time to time.
"Total Assets": as of any date of determination, the consolidated
total assets of the Company and the Restricted Subsidiaries as would be shown on
a consolidated balance sheet of the Company and the Restricted Subsidiaries
prepared in accordance with GAAP as of that date. See SECTION 13.2.
"Total Debt": as of any date of determination, the aggregate
principal amount of all Indebtedness of the Company and the Restricted
Subsidiaries at the time outstanding (other than Indebtedness permitted by
SECTION 10.1(c)). See SECTION 13.2.
"Transferor": the meaning specified in the definition of Sale and
Lease-Back Transaction.
"UCC": the Uniform Commercial Code as it may from time to time be
in effect in the State of New York.
"UGI": UGI Corporation, a Pennsylvania corporation.
"Unrestricted Subsidiary": any Subsidiary of the Company other
than a Restricted Subsidiary.
"Voting Stock": any class of Capital Stock pursuant to which the
holders thereof have the general voting power under ordinary circumstances to
elect at least a majority of the board of
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directors, managers, general partners or trustees of any Person (irrespective of
whether or not, at the time, Capital Stock of any other class or classes shall
have, or might have, voting power by reason of the happening of any contingency)
or, with respect to a partnership (whether general or limited), any general
partner interest in such partnership.
"Wholly-Owned": as applied to any Subsidiary of any Person, a
Subsidiary all of the outstanding shares (other than directors' qualifying
shares, if required by law) of every class of stock or other equity interests of
which are at the time owned by such Person or by one or more of its Wholly-Owned
Subsidiaries or by such Person and one or more of its Wholly-Owned Subsidiaries.
"Wholly-Owned Restricted Subsidiary": a Restricted Subsidiary all
of the outstanding shares (other than directors' qualifying shares, if required
by law) of every class of stock or other equity interests of which are owned by
the Company and/or one or more other Wholly-Owned Restricted Subsidiaries.
Section 13.2. Accounting Terms And Determination. (a) All references in
this Agreement to "GAAP" shall mean generally accepted accounting principles in
effect in the United States of America at the time of application thereof, but
subject to the provisions of this SECTION 13.2. Unless otherwise specified
herein, all accounting terms used herein shall be interpreted, all
determinations with respect to accounting matters hereunder shall be made, and
all financial statements and certificates and reports as to financial matters
required to be furnished hereunder shall be prepared, in accordance with GAAP
applied on a basis consistent with the most recent audited consolidated
financial statements of the Company and its Subsidiaries delivered pursuant to
SECTION 7(b).
(b) All references herein to "the Company and the Restricted
Subsidiaries" for the purposes of computing the consolidated financial position,
results of operations or other balance sheet or financial statement items
(including without limitation the computation of Available Cash, Average
Consolidated Pro Forma Debt Service, Consolidated Cash Flow, Consolidated Income
Tax Expense, Consolidated Interest Expense, Consolidated Net Income,
Consolidated Net Worth, Consolidated Non-cash Charges, Consolidated Pro Forma
Debt Service, Total Assets and Total Debt) shall be deemed to include only the
Company and the Restricted Subsidiaries as separate legal entities and, unless
otherwise provided herein, shall not include the financial position, results of
operations, cash flows or other such items of any other Person (including
without limitation an Unrestricted Subsidiary), whether or not, in any
particular instance, such accounting treatment would be in accordance with GAAP.
ARTICLE XIV
REGISTRATION, TRANSFER AND SUBSTITUTION OF NOTES
Section 14.1. Note Register; Ownership of Notes. Any Notes issued in
substantially the form of EXHIBIT A are in "registered form." The Company will
keep at its principal office a register in which the Company will provide for
the registration of Notes in registered form and
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the registration of transfers of Notes in registered form. The Obligors may
treat the Person in whose name any Note is registered on such register as the
owner thereof for the purpose of receiving payment of the principal of and the
Make Whole Amount, if any, and interest on such Note and for all other purposes,
whether or not such Note shall be overdue, and the Obligors shall not be
affected by any notice to the contrary. All references in this Agreement or in a
Note to a "holder" of any Note shall mean the Person in whose name such Note is
at the time registered on such register.
Section 14.2. Transfer and Exchange of Notes. (a) Upon surrender of any
Note for registration of transfer (in accordance with SECTION 14.1) or for
exchange to the Company at its principal office, the Obligors at their expense
within 5 Business Days will execute and deliver in exchange therefor a new Note
or Notes in denominations of at least $100,000 (except one Note may be issued in
a lesser principal amount if the unpaid principal amount of the surrendered Note
is not evenly divisible by, or is less than, $100,000), as requested by the
holder or transferee, which aggregate the unpaid principal amount of such
surrendered Note. Each such new Note shall be in registered form. Each such new
Note shall be dated so that there will be no loss of interest on such
surrendered Note and otherwise of like tenor, and shall be registered in the
name or names of such Person as the holder or transferee may request. Any Note
in lieu of which any such new Note has been executed and delivered shall not be
deemed to be an outstanding Note for any purpose of this Agreement. Unless
otherwise agreed by the Obligors, all transfers of Notes (other than to
Affiliates of the transferor) shall be in a minimum principal amount of 1% of
the then outstanding principal amount of such Notes (or the entire aggregate
principal amount of Notes held by the transferor, if less) and shall be made
only to, or to a Person for resale to, an Institutional Investor.
(b) Each holder of Notes agrees that, prior to any transfer of Notes
pursuant to SECTION 14.2(a) hereof, such holder will obtain from the transferee
of such Notes, either (i) a representation substantially identical to the
representation set forth in SECTION 6.2, or (ii) a representation that the
purchase of the Notes by the transferee does not involve a prohibited
transaction within the meaning of Section 406(a) of ERISA or Section
4975(c)(1)(A),(B),(C), or (D) of the Code. Each holder further agrees that such
representation shall be made in writing, and shall be delivered to the Company
prior to, or concurrently with, the effective date of such transfer.
Section 14.3. Replacement of Notes. Upon receipt of evidence reasonably
satisfactory to the Obligors of the loss, theft, destruction or mutilation of
any Note and, in the case of any such loss, theft or destruction of any Note,
upon delivery of an indemnity bond in such reasonable amount as the Company may
determine (or, in the case of any Note held by you or another Institutional
Investor or your or its nominee, of an unsecured indemnity agreement from you or
such other holder), or, in the case of any such mutilation, upon the surrender
of such Note for cancellation to the Company at its principal office, the
Obligors at their expense within 5 Business Days will execute and deliver, in
lieu thereof, a new Note in the unpaid principal amount of such lost, stolen,
destroyed or mutilated Note, dated so that there will be no loss of interest on
such Note and otherwise of like tenor. Any Note in lieu of which any such new
Note has been so executed and delivered by the Obligors shall not be deemed to
be an outstanding Note for any purpose of this Agreement.
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Section 14.4. Notes Held by the Obligors, etc., Deemed Not Outstanding.
For the purposes of determining whether the holders of Notes of the requisite
principal amount at the time outstanding have taken any action authorized by
this Agreement with respect to the giving of consents or approvals or with
respect to acceleration upon an Event of Default, any Notes directly or
indirectly owned by the Obligors or any of their Affiliates shall be disregarded
and deemed not to be outstanding.
Section 14.5. Transferee Obligations. In the case of a transfer of any
Note, you will cause the transferee to represent to you in writing in a letter
substantially in the form of EXHIBIT K attached hereto for the benefit of the
Obligors that such transferee expressly and unconditionally assumes all
obligations of a holder of Notes arising from and after the date of such
transfer under this Agreement and the other Financing Documents as if it were a
party hereto; provided, however, that failure by you to obtain such letter shall
neither void the transfer nor mean the transferee is not bound by the terms of
this Agreement.
ARTICLE XV
PAYMENTS ON NOTES
Section 15.1. Place of Payment. Payments of principal, Make Whole Amount,
if any, and interest becoming due and payable on the Notes shall be made at the
principal office of The Chase Manhattan Bank, New York, New York, in the Borough
of Manhattan, the City and State of New York, unless the Obligors, by written
notice to each holder of any Notes, shall designate the principal office of
another bank or trust company in such Borough as such place of payment, in which
case the principal office of such other bank or trust company shall thereafter
be such place of payment.
Section 15.2. Home Office Payment. So long as you or your nominee shall
be the holder of any Note, and notwithstanding anything contained in SECTION
15.1 or in such Note to the contrary, the Obligors will jointly and severally
pay all sums becoming due on such Note for principal, Make Whole Amount, if any,
and interest no later than 12:00 noon (New York City time) and by the method and
at the address specified for such purpose in SCHEDULE II, or by such other
reasonable method or at such other address as you shall have from time to time
specified to the Obligors in writing for such purpose, without the presentation
or surrender of such Note or the making of any notation thereon, except as
provided in SECTION 15.3. Prior to any sale or other disposition of any Note
held by you or your nominee you will either surrender such Note to the Obligors
in exchange for a new Note or Notes pursuant to SECTION 14.2 or mark the
principal amount outstanding on such Note and the date to which interest has
been paid on such Note. The Obligors will afford the benefits of this SECTION
15.2 to any Institutional Investor which is the direct or indirect transferee of
any Note purchased by you under this Agreement and which has made the same
agreement relating to such Note as you have made in this SECTION 15.2.
Section 15.3. Payment in Full. After payment in full of, and satisfaction
of all obligations under, any Note, the holder of such Note agrees to promptly
return such Note marked "Paid in Full" to the Company.
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ARTICLE XVI
EXPENSES AND INDEMNIFICATION, ETC.
Section 16.1. Expenses. Whether or not the transactions contemplated
hereby shall be consummated, the Company will pay all reasonable expenses in
connection with such transactions and in connection with any amendments or
waivers (as provided for below whether or not the same become effective) under
or in respect of this Agreement or the other Financing Documents, including
without limitation: (i) the cost and expenses of preparing and reproducing this
Agreement, the Operative Agreements and the other Financing Documents, of
furnishing all opinions of counsel required hereunder or under the Operative
Agreements and all certificates on behalf of the Company or the General Partner,
and of the Company's or the General Partner's performance of and compliance with
all agreements and conditions contained herein on its part to be performed or
complied with; (ii) the cost of delivering to your principal office, insured to
your reasonable satisfaction, the Notes sold to you hereunder and any Notes
delivered to you upon any substitution thereof pursuant to ARTICLE XIV and of
your delivering any Notes, insured to your reasonable satisfaction, upon any
such substitution; (iii) the reasonable fees, expenses and disbursements of not
more than one outside special counsel and one outside local counsel in each
jurisdiction where a Mortgage is filed in connection with such transactions and
any such amendments or waivers; (iv) the costs and expenses, including
attorneys' fees, incurred by you or any subsequent holder of a Note in enforcing
(or determining whether or how to enforce) any rights under this Agreement, the
Notes or the other Financing Documents or in responding to any subpoena, civil
investigative demand or other legal process in connection with this Agreement or
the transactions contemplated hereby or by reason of you or any subsequent
holder of Notes having acquired any Note, including without limitation costs and
expenses incurred in any bankruptcy case; (v) the cost and expenses of obtaining
a Private Placement Number for the Notes; and (vi) the reasonable out-of-pocket
expenses incurred by you in connection with such transactions and any such
amendments or waivers. The Company also will pay, and the Obligors will jointly
and severally save you and each holder of any Notes harmless from, all claims in
respect of the fees, if any, of brokers and finders (unless engaged by you or
any such holder) and any and all liabilities with respect to any taxes
(including interest and penalties and other than taxes calculated on or by
reference to income) which may be payable in respect of the execution and
delivery hereof, the issue of the Notes hereunder and any amendment or waiver
under or in respect hereof or of the Notes. In furtherance of the foregoing, on
the date of the Closing the Company will pay the reasonable fees and
disbursements of your special counsel which are reflected as unpaid in the
statement of Chapman and Cutler your special counsel delivered to the Company
prior to the date of the Closing; and thereafter the Company will pay, promptly
upon receipt of supplemental statements therefor from time to time, additional
reasonable fees, if any, and disbursements of your special counsel in connection
with the transactions hereby contemplated (including unposted fees and
disbursements as of the date of the Closing).
Section 16.2. Costs of Collection. In case of a default in the payment or
performance of any provision hereof or of the Notes or of the other Financing
Documents, the Company will pay to the holder of each Note such further amount
as shall be sufficient to cover the reasonable out-of-pocket cost and expenses
of collection, including without limitation reasonable attorneys'
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fees, expenses and disbursements, and any out-of-pocket costs and expenses of
any such holder incurred in connection with analyzing, evaluating, protecting,
ascertaining, defending or enforcing any of its rights as set forth herein or in
any of the other Financing Documents.
Section 16.3. Indemnification. The Obligors jointly and severally agree,
to the extent permitted by applicable law, to indemnify and hold you and each of
your officers, directors, trustees, employees and agents (collectively, the
"Indemnitees" and individually an "Indemnitee") free and harmless from and
against any and all actions, causes of action, suits, losses, liabilities and
damages, and reasonable expenses and disbursements in connection therewith
(including allocable reasonable costs of in-house counsel) (collectively, the
"Indemnified Liabilities"), incurred by the Indemnitees or any of them as a
result of a claim by a third party or asserted by a third party against such
Indemnitee, in each case as a result of, or arising out of, or relating to any
transaction financed or to be financed in whole or in part directly or
indirectly with proceeds from the sale of any of the Notes, including without
limitation any response, remediation or removal liability or expense arising out
of any Environmental Law, except as to any Indemnitee for any such Indemnified
Liabilities arising on account of such Indemnitee's gross negligence or willful
misconduct; provided that if, and to the extent, the foregoing undertaking may
be unenforceable for any reason, the Obligors jointly and severally agree to
make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law.
Section 16.4. Survival. The obligations of the Obligors under this
Section 16 shall survive the payment, prepayment or transfer of the Notes.
ARTICLE XVII
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All representations and warranties contained in this Agreement or
the other Financing Documents, or made in writing by or on behalf of you, the
Obligors or any of their Affiliates, pursuant to this Agreement or the other
Financing Documents or any other document or instrument referenced herein shall
survive the execution and delivery of this Agreement and the other Financing
Documents, any investigation at any time made by or on behalf of you or the
Obligors, the purchase of the Notes by you under this Agreement and any
disposition or payment of the Notes.
ARTICLE XVIII
AMENDMENTS AND WAIVERS
Section 18.1. Generally. Any term of this Agreement or of the Notes may
be amended and the observance of any term of this Agreement or of the Notes may
be waived (either generally or in a particular instance and either retroactively
or prospectively), only with the written consent of the Obligors and the
Required Holders, provided that, without the prior written consent of the
holders of all the Notes at the time outstanding, no such amendment or
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85
waiver shall change (a) the maturity or the principal amount of, or change the
rate of interest or the time of payment of interest on, or change the amount or
the time of payment of any principal or Make Whole Amount payable on any
prepayment of, any Note, (b) the aforesaid percentage of the principal amount of
the Notes the holders of which are required to consent to any such amendment or
waiver or change the rights of such holders with respect thereto, (c) the
percentage of the principal amount of the Notes the holders of which may declare
the Notes to be due and payable as provided in ARTICLE XI or change the rights
of such holders with respect thereto, (d) the right of any holder of Notes to
declare such holder's Notes to be due and payable as a consequence of an Event
of Default under SECTION 11(a) or 11(b), or (e) the percentage of the principal
amount of the Notes the holders of which may rescind and annul any such
declaration as provided in ARTICLE XI. Any amendment or waiver effected in
accordance with this ARTICLE XVIII shall be binding upon each holder of any Note
at the time outstanding, each future holder of any Note and the Obligors.
Section 18.2. Corporate Transaction. In connection with a proposed
merger, consolidation or sale of all or substantially all of the assets of the
Company in accordance with SECTION 10.7(a)(iii) or (b)(iii) to a corporation,
the parties agree (i) to effect, simultaneously with such transaction, all
necessary and appropriate modifications to the terms and conditions of this
Agreement and the other Financing Documents (including without limitation, (1)
the ability of the Company to make payments under SECTION 10.4, and (2) the
ability of the Company to incur Indebtedness under SECTION 10.1, in each case
taking into account the effect of any change in the tax status of the Company or
its financial condition and the applicable financial covenant) to reflect the
corporate existence of such successor corporation and any other matters in form
acceptable to the Required Holders, provided that such modified terms and
conditions convey to the parties substantially the same rights and obligations
provided under the Financing Documents immediately prior to such transaction and
(ii) that any potential Event of Default described in SECTION 11(l) which would
result from such transaction shall not be asserted by you if after giving effect
to such transaction UGI shall own directly or indirectly at least 51% of the
Voting Stock of the corporation that is the successor to the Company.
ARTICLE XIX
NOTICES, ETC.
Except as otherwise provided in this Agreement, notices and other
communications under this Agreement shall be in writing and shall be delivered
by hand, by express courier service, by registered or certified mail, return
receipt requested, postage prepaid, by first-class mail or by telecopy (such
delivery confirmed by telephone), addressed, (a) if to you, at the address set
forth in SCHEDULE II or at such other address as you shall have furnished to the
Obligors in writing, except as otherwise provided in SECTION 15.2 with respect
to payments on Notes held by you or your nominee, or (b) if to any other holder
of any Note, at such address as such other holder shall have furnished to the
Obligors in writing, or, until any such other holder so furnishes to the
Obligors an address, then to and at the address of the last holder of such Note
who has so furnished an address to the Obligors, or (c) if to the Obligors, at
460 North Gulph Road, King of Prussia, PA 19406, Attention: Treasurer (Tel.:
610-337-1000), or at such other address, or to the
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86
attention of such other officer, as the Obligors shall have furnished to you and
each such other holder in writing. Any notice so addressed and mailed or
delivered shall be deemed to be given (1) one Business Day after being consigned
to an express courier service, (2) three Business Days after being mailed by
registered, certified or first-class mail, (3) on the same Business Day, if by
hand and (4) when received, if by telecopy; provided, however, that any notice
under ARTICLE IX hereof shall be delivered by an express courier service.
ARTICLE XX
SUBSTITUTION OF PURCHASER
You shall have the right to substitute any one of your Affiliates
as the purchaser of the Notes which you have agreed to purchase hereunder by
written notice to the Obligors given at least two Business Days prior to the
date of Closing, which notice shall be signed by both you and such Affiliate,
shall contain such Affiliate's agreement to be bound by this Agreement and shall
contain a confirmation by such Affiliate of the accuracy with respect to it of
the representations set forth in ARTICLE VI. Upon receipt of such notice,
wherever the word "you" is used in this Agreement (other than in this ARTICLE
XX), such word shall be deemed to refer to such Affiliate in lieu of you. In the
event that such Affiliate is so substituted as a purchaser hereunder and such
Affiliate thereafter transfers to you all of the Notes then held by such
Affiliate, upon receipt by the Obligors of notice of such transfer, wherever the
word "you" is used in this Agreement (other than in this ARTICLE XX), such word
shall no longer be deemed to refer to such Affiliate, but shall refer to you,
and you shall have all the rights of an original holder of the Notes under this
Agreement.
ARTICLE XXI
MISCELLANEOUS
Section 21.1. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto, whether so expressed or not, and, in
particular, shall inure to the benefit of and be enforceable by any holder or
holders at the time of the Notes or any part thereof.
Section 21.2. Entire Agreement. This Agreement, the Notes and the other
Financing Documents embody the entire agreement and understanding between you
and the Obligors relating to the subject matter hereof and thereof and supersede
all prior agreements and understandings relating to the subject matter hereof
and thereof.
Section 21.3. Descriptive Headings. The headings in this Agreement are
for purposes of reference only and shall not limit or otherwise affect the
meaning hereof.
Section 21.4. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
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87
SECTION 21.5. GOVERNING LAW; WAIVER OF JURY TRIAL. (a) THIS AGREEMENT AND
THE NOTES SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE
LAW OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PRINCIPLES.
(b) EACH OF THE PARTIES HERETO KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT, ANY
EXHIBIT HERETO OR ANY FINANCING DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING OR STATEMENTS (WHETHER ORAL OR WRITTEN) MADE BY THE PARTIES HEREIN.
Section 21.6. Payments Due on Non-Business Days. Anything in this
Agreement or the Notes to the contrary notwithstanding, any payment of principal
of or interest on any Note that is due on a date other than a Business Day shall
be made on the next succeeding Business Day. If the date for any payment is
extended to the next succeeding Business Day by reason of the preceding
sentence, the period of such extension shall be included in the computation of
the interest, if any, payable on such Business Day.
Section 21.7. Satisfaction Requirement. If any agreement, certificate or
other writing, or any action taken or to be taken, is by the terms of this
Agreement or any of the other Financing Documents required to be satisfactory to
you or to the holder or holders of the outstanding Notes (or any specified
percentage thereof), the determination of such satisfaction shall be made by you
or such holder or holders, as the case may be, in the commercially reasonable
judgment of the Person or Persons making such determination.
Section 21.8. Severability. Any provision of this Agreement which is held
to be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without invalidating the remaining provisions hereof, and any
such invalidity, illegality or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
Section 21.9. Consent to Jurisdiction; Service of Process. (a) Each of
the Obligors irrevocably submits to the non-exclusive in personam jurisdiction
of any New York State or federal court sitting in the Borough of Manhattan, The
City of New York over any suit, action or proceeding arising out of or relating
to this Agreement, the Notes or the other Financing Documents. Each Obligor is
referred to in this SECTION 21.9 as a "Consenting Party." To the fullest extent
it may effectively do so under applicable law, each Consenting Party irrevocably
waives and agrees not to assert, by way of motion, as a defense or otherwise,
any claim that it is not subject to the in personam jurisdiction of any such
court, any objection that it may now or hereafter have to the laying of the
venue of any such suit, action or proceeding brought in any such court and any
claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum; provided that such consent to
jurisdiction is solely for the purposes referred to in this SECTION 21.9(a) and
shall not be deemed to be a general submission to jurisdiction of such courts or
in the State of New York other than for such purposes.
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(b) Each Consenting Party agrees, to the fullest extent it may
effectively do so under applicable law, that a final judgment in any suit,
action or proceeding of the nature referred to in subdivision (a) of this
SECTION 21.9 brought in any such court shall be conclusive and binding upon such
Consenting Party subject to rights of appeal, as the case may be, and may be
enforced in the courts of the United States of America or the State of New York
(or any other courts to the jurisdiction of which such Consenting Party is or
may be subject) by a suit upon such judgment.
(c) Each Consenting Party consents to process being served in any
suit, action or proceeding of the nature referred to in subdivision (a) of this
SECTION 21.9 by mailing a copy thereof by registered or certified mail, postage
prepaid, return receipt requested, to the address of the Company specified in or
designated pursuant to ARTICLE XIX or by commercial delivery service. Each
Consenting Party agrees that such service upon receipt (i) shall be deemed in
every respect effective service of process upon it in any such suit, action or
proceeding and (ii) shall, to the fullest extent permitted by law, be taken and
held to be valid personal service upon and personal delivery to such Consenting
Party. Such service shall be conclusively presumed received as evidenced by a
delivery receipt furnished by the United States Postal Service or any commercial
delivery service.
(d) Nothing in this SECTION 21.9 shall affect the right of any
holder of Notes to serve process in any manner permitted by law, or limit any
right that the holders of any of the Notes may have to bring proceedings against
any Consenting Party in the courts of any appropriate jurisdiction or to enforce
in any lawful manner a judgment obtained in one jurisdiction in any other
jurisdiction.
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If you are in agreement with the foregoing, please sign the form
of acceptance on the enclosed counterpart of this letter and return the same to
the undersigned, whereupon this letter shall become a binding agreement between
you and the undersigned.
Very truly yours,
AMERIGAS PROPANE, L.P.
By AmeriGas Propane, Inc.,
General Partner
By
-------------------------------------------
Name:
Title:
AMERIGAS PROPANE, INC.
By
Name:
Title:
The foregoing Agreement is
hereby accepted and agreed to
as of the date first above
written.
[PURCHASER]
By
------------------------------
Name:
Title:
-83-
90
SCHEDULE OF PURCHASERS
NAME Notes being Purchased
____________________________________________ Series E $80,000,000
SCHEDULE I
(to Note Agreement)
91
PURCHASER PAYMENT AND NOTICE INFORMATION
SCHEDULE II shows the names and addresses of the Purchasers under
the foregoing Note Agreement and the other agreements referred to in ARTICLE II
thereof and the respective principal amounts of Notes to be purchased by each.
PRINCIPAL AMOUNT
OF NOTES
NAME AND ADDRESS OF PURCHASER TO BE PURCHASED
SCHEDULE II
(to Note Agreement)
92
THIS FIRST MORTGAGE NOTE IS SUBJECT TO THE TERMS AND CONDITIONS
CONTAINED IN THE INTERCREDITOR AGREEMENT (AS DEFINED IN THE NOTE AGREEMENTS),
WHICH INTERCREDITOR AGREEMENT, AMONG OTHER THINGS, ESTABLISHES CERTAIN RIGHTS
WITH RESPECT TO SECURITY FOR THIS FIRST MORTGAGE NOTE AND THE SHARING OF
PROCEEDS THEREOF WITH CERTAIN OTHER SECURED CREDITORS (AS DEFINED IN THE
INTERCREDITOR AGREEMENT). COPIES OF SUCH INTERCREDITOR AGREEMENT WILL BE
FURNISHED TO ANY HOLDER OF THIS FIRST MORTGAGE NOTE UPON REQUEST TO THE COMPANY.
[FORM OF NOTE]
AMERIGAS PROPANE, L.P.
AMERIGAS PROPANE, INC.
First Mortgage Note, Series E
(Private Placement Number: 03079@ AB 4)
No. R- New York, New York
$__________ [Date]
AMERIGAS Propane, L.P., a Delaware limited partnership (the
"Company") and AMERIGAS Propane, Inc., a Pennsylvania corporation (the "General
Partner" and together with the Company, the "Obligors") for value received,
hereby jointly and severally promise to pay to _______________________ or
registered assigns, the principal amount of _______________ on July 1, 2010 with
interest (computed on the basis of a 360-day year of twelve 30-day months) on
the unpaid balance of such principal amount at the rate of 8.50% per annum from
the date hereof, payable semiannually, commencing on July 1, 2000, and on each
January 1 and July 1 after the date hereof and at maturity, until such unpaid
balance shall become due and payable (whether at maturity or at a date fixed for
prepayment or by declaration or otherwise), and with interest on any overdue
principal (including any overdue prepayment of principal) and the Make Whole
Amount, if any, and (to the extent permitted by applicable law) on any overdue
interest, at an annual rate until paid equal to the greater of (x) 9.50% and (y)
1% plus the rate from time to time in effect and publicly announced by The Chase
Manhattan Bank as its prime rate, payable on demand. Payments of principal, the
Make Whole Amount, if any, and interest on this Note shall be made in lawful
money of the United States of America at the principal office of The Chase
Manhattan Bank, in the Borough of Manhattan, the City and State of New York, or
at such other office or agency in such Borough as the Obligors shall have
designated by written notice to the registered holder of this Note as provided
in the Note Agreements referred to below.
This Note is one of the Obligors' First Mortgage Notes, Series E
(the "Notes"), originally issued in an aggregate principal amount of
$80,000,000, pursuant to separate Note Agreements, dated as of March 15, 2000,
as from time to time amended, among the Obligors and the institutional investors
named therein (the "Note Agreements"). All capitalized terms used herein without
definition shall have the respective meanings specified in the Note Agreements.
The Notes were issued in a single series maturing and bearing interest as
follows:
EXHIBIT A
(to Note Agreement)
93
Series Annual Principal Maturity
Designation Interest Rate Amount Date
Series E 8.50% $80,000,000 July 1, 2010
The registered holder of this Note is entitled to the benefits of
the Note Agreements and may enforce the agreements of the Obligors contained
therein and exercise the remedies provided for thereby or otherwise available in
respect thereof.
The Notes are entitled to the benefits of certain security held by
or for the benefit of Bank of America National Trust and Savings Association, a
national banking association or its successor at the time acting as collateral
trustee (the "Collateral Agent") under the Intercreditor and Agency Agreement,
as amended, supplemented or otherwise modified in accordance with the terms
thereof (the "Intercreditor Agreement"), dated as of April 19, 1995, by and
among the Obligors, Petrolane, the Restricted Subsidiaries, the institutional
investors named in the note agreements, the Agent (as defined in the
Intercreditor Agreement) and the Collateral Agent. THIS NOTE IS SUBJECT TO THE
TERMS AND CONDITIONS CONTAINED IN THE INTERCREDITOR AGREEMENT, WHICH
INTERCREDITOR AGREEMENT, AMONG OTHER THINGS, ESTABLISHES CERTAIN RIGHTS WITH
RESPECT TO THE SECURITY FOR THIS NOTE AND THE SHARING OF PROCEEDS OF SUCH
SECURITY WITH CERTAIN OTHER SECURED CREDITORS (AS DEFINED IN THE INTERCREDITOR
AGREEMENT). COPIES OF THE INTERCREDITOR AGREEMENT WILL BE FURNISHED TO ANY
HOLDER OF THIS NOTE UPON REQUEST TO THE Company. The security for the Notes is
provided by (a) separate mortgages, deeds of trust, assignments of leases and
rents, security agreements, financing statements and fixture filings between the
Company and the Collateral Agent or between the Restricted Subsidiaries and the
Collateral Agent covering certain properties and assets of the Company or the
Restricted Subsidiaries, as the case may be, located in various jurisdictions,
(b) a General Security Agreement between the Company and the Collateral Agent
covering items of personal property (including accounts and inventory) of the
Company, (c) a Subsidiary Guarantee executed by the Restricted Subsidiaries and
(d) a Subsidiary Security Agreement between the Restricted Subsidiaries and the
Collateral Agent covering items of personal property (including accounts and
inventory) of the Restricted Subsidiaries. The Notes are entitled to the
benefits of the security provided for in such agreements and instruments, to
which reference is made for a description of the properties and rights included
in such security, the nature and extent of such security and the rights of the
Collateral Agent, the Company, the Restricted Subsidiaries and the various
parties to such agreements and instruments in respect of such security.
This Note is a registered Note and is transferable only upon
surrender of this Note for registration of transfer, duly endorsed, or
accompanied by a written instrument of transfer duly executed, by the holder
hereof or his attorney duly authorized in writing. References in this Note to a
"holder" shall mean the person in whose name this Note is at the time registered
on the register kept by the Company as provided in the Note Agreements and the
Obligors may treat such person as the owner of this Note for the purpose of
receiving payment and for all other purposes, and the Obligors shall not be
affected by any notice to the contrary.
A-2
94
The Notes are subject to required and optional prepayment, in
whole or in part, in certain cases with a Make Whole Amount and in other cases
without a Make Whole Amount, all as provided in the Note Agreements.
In case an Event of Default, as defined in the Note Agreements,
shall occur and be continuing, the unpaid balance of the principal of this Note
may become due and payable in the manner and with the effect provided in the
Note Agreements.
THIS NOTE IS MADE AND DELIVERED IN NEW YORK, NEW YORK, AND SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PRINCIPLES.
EACH OF THE OBLIGORS HERETO KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS NOTE, OR ANY COURSE
OF CONDUCT, COURSE OF DEALING OR STATEMENTS (WHETHER ORAL OR WRITTEN) MADE BY
THE OBLIGORS HEREIN.
AMERIGAS PROPANE, L.P.
By AMERIGAS PROPANE, INC.,
as its General Partner
By
----------------------------
Name:
Title:
AMERIGAS PROPANE, INC.
By
Name:
Title:
A-3
95
FORM OF OFFICERS' CERTIFICATE OF THE OBLIGORS
OFFICER'S CERTIFICATE
OF
AMERIGAS PROPANE, INC.
To the Purchasers Listed on the Attached Schedule A:
This certificate is delivered in compliance with the requirements
of the separate and several Note Agreements dated as of March 15, 2000
(collectively, the "Note Agreements") entered into by AmeriGas Propane, L.P., a
Delaware limited partnership (the "Company"), and AmeriGas Propane, Inc., a
Pennsylvania corporation (the "General Partner"), with each of you, as a
condition to and concurrently with your separate purchases on the date hereof of
$80,000,000 aggregate principal amount of the 8.50% First Mortgage Notes, Series
E, due July 1, 2010 (the "Notes") of the Company and the General Partner
pursuant to the Note Agreements. Capitalized terms used herein shall have the
same meanings as in the Note Agreements.
The undersigned represents and warrants to each of you as follows:
1. The undersigned is the duly elected, qualified and
acting Vice President - Finance and Chief Financial Officer of the
General Partner and is familiar with the operations, records and
affairs of the General Partner;
2. The representations and warranties of the General
Partner and its Affiliates contained in the Note Agreements, the
other Financing Documents, the Operative Agreements, the
Memorandum and those otherwise made in writing by or on behalf of
the General Partner or any of its Affiliates pursuant to the Note
Agreements or the other Financing Documents were true and correct
in all material respects when made and are true and correct in all
material respects on and with respect to the date hereof;
3. The General Partner and its Affiliates have performed
and complied in all material respects with all agreements and
covenants contained in the Note Agreements, any other Financing
Document or any Operative Agreement required to be performed or
complied with by the General Partner or any of its Affiliates
prior to or on the date hereof;
4. After giving effect to the issue and sale of the Notes
(and the application of the proceeds thereof as contemplated by
Section 5.13 of the Note Agreements), no Default or Event of
Default or default by the General Partner or any of its Affiliates
under any Operative Agreement, the 1995 Note Agreement or the 1999
Note Agreement has occurred or is continuing; and
5. Neither the General Partner nor any of its Subsidiaries
has entered into any transaction since the date of the Memorandum
that would have been prohibited by Section 10 of the Note
Agreements had such section applied since such date.
[INTENTIONALLY BLANK]
EXHIBIT B1
(to Note Agreement)
96
Dated: ______________, 2000
AMERIGAS PROPANE, INC.
By
----------------------------------------
Its Vice President - Finance and Chief
Financial Officer
B1-2
97
OFFICER'S CERTIFICATE
OF
THE GENERAL PARTNER
OF
AMERIGAS PROPANE, L.P.
To the Purchasers Listed on the Attached Schedule A:
This certificate is delivered in compliance with the requirements
of the separate and several Note Agreements each dated as of March 15, 2000
(collectively, the "Note Agreements") entered into by AmeriGas Propane, L.P., a
Delaware limited partnership (the "Company"), and AmeriGas Propane, Inc., a
Pennsylvania corporation (the "General Partner"), with each of you, as a
condition to and concurrently with your separate purchases on the date hereof of
$80,000,000 aggregate principal amount of the 8.50% First Mortgage Notes, Series
E, due July 1, 2010 (the "Notes") of the Company and the General Partner
pursuant to the Note Agreements. Capitalized terms used herein shall have the
same meanings as in the Note Agreements.
The undersigned represents and warrants to each of you as follows:
1. The undersigned is the duly elected, qualified and
acting Vice President - Finance and Chief Financial Officer of the
sole general partner of the Company and is familiar with the
operations, records and affairs of the Company;
2. The representations and warranties of the Company and
its Affiliates contained in the Note Agreements, the other
Financing Documents, the Operative Agreements, the Memorandum and
those otherwise made in writing by or on behalf of the Company or
any of its Affiliates pursuant to the Note Agreements or the other
Financing Documents were true and correct in all material respects
when made and are true and correct in all material respects on and
with respect to the date hereof;
3. The Company and its Affiliates have performed and
complied in all material respects with all agreements and
covenants contained in the Note Agreements, any other Financing
Document or any Operative Agreement required to be performed or
complied with by the Company or any of its Affiliates prior to or
on the date hereof;
4. After giving effect to the issue and sale of the Notes
(and the application of the proceeds thereof as contemplated by
Section 5.13 of the Note Agreements), no Default or Event of
Default or default by the Company or any of its Affiliates under
any Operative Agreement, the 1995 Note Agreement or the 1999 Note
Agreement has occurred or is continuing; and
5. Neither the Company nor any of its Subsidiaries has
entered into any transaction since the date of the Memorandum that
would have been prohibited by Section 10 of the Note Agreements
had such section applied since such date.
[INTENTIONALLY BLANK]
B1-3
98
Dated: ______________, 2000
AMERIGAS PROPANE, L.P.
By: AmeriGas Propane, Inc.,
Its General Partner
By
Its Vice President - Finance and
Chief Financial Officer
B1-4
99
FORM OF OFFICERS' CERTIFICATE OF EACH RESTRICTED
SUBSIDIARY OF THE OBLIGORS
OFFICER'S CERTIFICATE
OF
AMERIGAS PROPANE PARTS & SERVICES, INC.
To the Purchasers Listed on the Attached Schedule A:
This certificate is delivered in compliance with the requirements
of the separate and several Note Agreements dated as of March 15, 2000
(collectively, the "Note Agreements") entered into by AmeriGas Propane, L.P., a
Delaware limited partnership (the "Company"), and AmeriGas Propane, Inc., a
Pennsylvania corporation (the "General Partner"), with each of you, as a
condition to and concurrently with your separate purchases on the date hereof of
$80,000,000 aggregate principal amount of the 8.50% First Mortgage Notes, Series
E, due July 1, 2010 (the "Notes") of the Company and the General Partner
pursuant to the Note Agreements. Capitalized terms used herein shall have the
same meanings as in the Note Agreements.
AmeriGas Propane Parts & Services, Inc., a Pennsylvania
corporation (the "Subsidiary Guarantor"), has delivered (i) the Restricted
Subsidiary Guarantee dated as of April 19, 1995 (the "Restricted Subsidiary
Guarantee") by the Subsidiary Guarantor and certain other subsidiaries of the
Company, guaranteeing the payment by the Company and the General Partner of all
amounts due with respect to the Notes and the performance by the Company and the
General Partner of their respective obligations under the Note Agreements and
(ii) the Subsidiary Security Agreement dated as of April 19, 1995 (the
"Subsidiary Security Agreement") among the Subsidiary Guarantor and certain
other subsidiaries of the Company, Bank of America National Trust and Savings
Association, as Collateral Agent, and Mellon Bank, N.A., as Cash Collateral
Sub-Agent, providing security for the obligations for the Subsidiary Guarantor
under the Restricted Subsidiary Guarantee.
The undersigned represents and warrants to each of you as follows:
1. The undersigned is the duly elected, qualified and
acting Vice President -- Finance of the Subsidiary Guarantor and
is familiar with the operations, records and affairs of the
Subsidiary Guarantor;
2. The representations and warranties of the Subsidiary
Guarantor contained in the Restricted Subsidiary Guarantee and the
Subsidiary Security Agreement were true and correct in all
material respects when made and are true and correct in all
material respects on and with respect to the date hereof;
3. The Subsidiary Guarantor has performed and complied in
all material respects with all agreements and covenants contained
in the Restricted Subsidiary Guarantee and the Subsidiary Security
Agreement required to be performed or complied with by the
Subsidiary Guarantor prior to or on the date hereof;
EXHIBIT B2
(to Note Agreement)
100
4. Neither the Subsidiary Guarantor, nor any of its
Subsidiaries has entered into any transaction since the date of
the Memorandum that would have been prohibited by Section 10 of
the Note Agreements had such sections applied since such date; and
5. Upon the sale of the Notes, the Notes shall be
guaranteed pursuant to the Restricted Subsidiary Guarantee and the
obligation of the Subsidiary Guarantor pursuant to the Restricted
Subsidiary Guarantee shall be secured pursuant to the Security
Documents; and the Subsidiary Guarantor hereby consents to any
supplement or amendment to the Restricted Subsidiary Guarantee,
the Subsidiary Security Agreement, any Security Documents or the
Intercreditor Agreement necessary to provide such guaranty and
security.
[INTENTIONALLY BLANK]
B2-2
101
Dated: ______________, 2000
AMERIGAS PROPANE PARTS & SERVICES, INC.
By
Its Vice President - Finance
B2-3
102
FORM OF OPINION OF SPECIAL COUNSEL
TO THE COMPANY AND THE GENERAL PARTNER
The closing opinion of Morgan, Lewis & Bockius, special counsel
for the Obligors and their respective Affiliates, which is called for by SECTION
4.4 of the Note Agreements, shall be dated the date of the Closing and addressed
to you and the Other Purchasers, shall be satisfactory in scope and form to you
and the Other Purchasers and shall be to the effect that:
1. The Company is a limited partnership, duly organized,
validly existing and in good standing under the laws of the State
of Delaware, has the partnership power and the partnership
authority to execute and perform this Agreement, the Other
Agreements and such other Security Documents to which it is a
party and to issue the Notes and has the full partnership power
and the partnership authority to conduct the activities in which
it is now engaged and is duly licensed or qualified and is in good
standing as a foreign partnership in each jurisdiction in which
the character of the properties owned or leased by it or the
nature of the business transacted by it makes such licensing or
qualification necessary. The sole general partner of the Company
is the General Partner.
2. The General Partner is a corporation, duly incorporated,
validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania, has the corporate power and the
corporate authority to execute and perform the Note Agreement, the
Other Agreements and such other Security Documents to which it is
a party, to act as the sole general partner of the Company and to
issue the Notes and has the full corporate power and the corporate
authority to conduct the activities in which it is now engaged and
is duly licensed or qualified and is in good standing as a foreign
corporation in each jurisdiction in which the character of the
properties owned or leased by it or the nature of the business
transacted by it makes such licensing or qualification necessary.
3. The Note Agreement and the Other Agreements have been
duly authorized by all necessary partnership action on the part of
the Company, have been duly executed and delivered by the Company
and constitute the legal, valid and binding contracts of the
Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent conveyance or similar laws
affecting creditors' rights generally, and general principles of
equity (regardless of whether the application of such principles
is considered in a proceeding in equity or at law).
4. The Note Agreement and the Other Agreements have been
duly authorized by all necessary corporate action on the part of
the General Partner, have been duly executed and delivered by the
General Partner and constitute the legal, valid and binding
contracts of the General Partner enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent
conveyance or similar laws affecting creditors' rights generally,
and general principles of equity (regardless of whether the
application of such principles is considered in a proceeding in
equity or at law).
EXHIBIT C1
(to Note Agreement)
103
5. The Notes have been duly authorized by all necessary
partnership action on the part of the Company, have been duly
executed and delivered by the Company and constitute the legal,
valid and binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent conveyance or similar laws affecting creditors' rights
generally, and general principles of equity (regardless of whether
the application of such principles is considered in a proceeding
in equity or at law).
6. The Notes have been duly authorized by all necessary
corporate action on the part of the General Partner, have been
duly executed and delivered by the General Partner and constitute
the legal, valid and binding obligations of the General Partner
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent conveyance or similar laws affecting
creditors' rights generally, and general principles of equity
(regardless of whether the application of such principles is
considered in a proceeding in equity or at law).
7. The Company has duly authorized by all necessary
partnership action and has duly executed and delivered each of the
Security Documents to which it is a party, and each of them
constitutes the Company's legal, valid and binding obligation
enforceable against it in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency,
moratorium or similar laws affecting creditors' rights generally,
and general principles of equity (regardless of whether the
application of such principles is considered in a proceeding in
equity or at law).
8. The General Partner has duly authorized by all necessary
corporate action and has duly executed and delivered each of the
Security Documents to which it is a party, and each of them
constitutes the General Partner's legal, valid and binding
obligation enforceable against it in accordance with its terms,
except as such enforceability may be limited by bankruptcy,
insolvency, moratorium or similar laws affecting creditors' rights
generally, and general principles of equity (regardless of whether
the application of such principles is considered in a proceeding
in equity or at law).
9. Each Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction
of incorporation, has the corporate power and the corporate
authority to execute and perform the Security Documents to which
it is a party and is duly licensed or qualified and is in good
standing in each jurisdiction in which the character of the
properties owned or leased by it or the nature of the business
transacted by it makes such licensing or qualification necessary
and all of the issued and outstanding shares of capital stock of
each such Subsidiary have been duly issued, are fully paid and
non-assessable and are owned by the General Partner, the Company,
by one or more Subsidiaries, or by the General Partner, the
Company and one or more such Subsidiaries.
C1-2
104
10. Each Subsidiary of the Company has taken all necessary
corporate action to authorize the execution, delivery and
performance by it of each of the Security Documents to which it is
a party.
11. Each Subsidiary of the Company has duly executed and
delivered each of the Security Documents to which it is a party,
and each of them constitutes such Subsidiary's legal, valid and
binding obligation enforceable against it in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, moratorium or similar laws affecting creditors' rights
generally, and general principles of equity (regardless of whether
the application of such principles is considered in a proceeding
in equity or at law).
12. Each of the Security Documents (or financing statements
or similar notices thereof to the extent permitted or required by
applicable law) has been filed for record or recorded in all
public offices wherein such filing or recordation is necessary to
perfect the security interest granted by such Security Document in
the collateral therein described as against creditors of and
purchasers from the General Partner, the Company and their
Subsidiaries and each such Security Document creates a valid and
perfected first security interest in such collateral effective as
against creditors of and purchasers from the General Partner, the
Company and their Subsidiaries subject only to encumbrances
expressly permitted by the terms of such Security Document.
13. No approval, consent or withholding of objection on the
part of, or filing, registration or qualification with, any
governmental body, Federal, state or local, is necessary in
connection with the execution, delivery and performance of the
Note Agreement, the Other Agreements or the Notes.
14. The issuance and sale of the Notes and the execution,
delivery and performance by the Company of the Note Agreement and
the Other Agreements do not conflict with or result in any breach
of any of the provisions of or constitute a default under or
result in the creation or imposition of any Lien upon any of the
property of the Company pursuant to the provisions of the
Certificate of Limited Partnership or partnership agreement of the
Company or any agreement or other instrument known to such counsel
to which the Company is a party or by which the Company may be
bound or any Federal, state or local law.
15. The issuance and sale of the Notes and the execution,
delivery and performance by the General Partner of the Note
Agreement and the Other Agreements do not conflict with or result
in any breach of any of the provisions of or constitute a default
under or result in the creation or imposition of any Lien upon any
of the property of the General Partner pursuant to the provisions
of the Articles of Incorporation or By-laws of the General Partner
or any agreement or other instrument known to such counsel to
which the General Partner is a party or by which the General
Partner may be bound or any Federal, state or local law.
C1-3
105
16. The issuance, sale and delivery of the Notes under the
circumstances contemplated by the Note Agreement and the Other
Agreements does not, under existing law, require the registration
of the Notes under the Securities Act of 1933, as amended, or the
qualification of an indenture under the Trust Indenture Act of
1939, as amended.
17. The issuance of the Notes and the use of the proceeds
of the sale of the Notes in accordance with the provisions of and
contemplated by the Note Agreement and
the Other Agreements do not violate or conflict with
Regulation T, U or X of the Board of Governors of the Federal
Reserve System.
18. The Company is not an "investment company" or a company
"controlled" by an "investment company" under the Investment
Company Act of 1940, as amended.
19. The General Partner is not an "investment company" or a
company "controlled" by an "investment company" under the
Investment Company Act of 1940, as amended.
20. Neither the Company nor the General Partner is a
"holding company" within the meaning of the Section 2(a)(7)(A) of
Public Utility Holding Company Act of 1935, as amended (the
"PUHCA"). Each of the Company and the General Partner is a
"subsidiary company" of a "holding company," within the meaning of
the PUHCA, but each of UGI (the "holding company"), the Company
and the General Partner is exempt from all of the provisions of
the PUHCA and the rules thereunder other than Section 9(a)(2)
thereof based upon the filing by UGI with the Commission of an
exemption statement on Form U-3A-2 dated February 25, 2000
pursuant to Rule 2 under the PUHCA (17 C.F.R. section. 250.2).
21. There is no litigation pending or, to the best
knowledge of such counsel, threatened which in such counsel's
opinion could reasonably be expected to have a materially adverse
effect on the Company's business or assets or which would impair
the ability of the Company to issue and deliver the Notes or to
comply with the provisions of the Note Agreement and the Other
Agreements.
22. There is no litigation pending or, to the best
knowledge of such counsel, threatened which in such counsel's
opinion could reasonably be expected to have a materially adverse
effect on the General Partner's business or assets or which would
impair the ability of the General Partner to issue and deliver the
Notes or to comply with the provisions of the Note Agreement and
the Other Agreements.
23. The choice of New York law as the governing law of the
Notes and Note Agreements shall be recognized by the courts of
Pennsylvania.
The opinion of Morgan, Lewis & Bockius shall cover such other matters relating
to the sale of the Notes as you and the Other Purchasers may reasonably request.
With respect to matters of fact on which such opinion is based, such counsel
shall be entitled to rely on appropriate
C1-4
106
certificates of public officials and officers of the Company. You and the Other
Purchasers, together with subsequent holders of the Notes, may rely on the
opinion of Morgan, Lewis & Bockius.
C1-5
107
FORM OF OPINION OF SPECIAL COUNSEL
TO THE PURCHASERS
The closing opinion of Chapman and Cutler, special counsel to you
and the Other Purchasers, called for by SECTION 4.4 of the Agreements, shall be
dated the date of the Closing and addressed to you and the Other Purchasers,
shall be satisfactory in form and substance to you and the Other Purchasers and
shall be to the effect that:
1. The Company is a limited partnership, duly organized,
validly existing and in good standing under the laws of the State
of Delaware, has the partnership power and the partnership
authority to execute and perform the Note Agreement, the Other
Agreements and such other Security Documents to which it is a
party and to issue the Notes.
2. The General Partner is a corporation, duly incorporated,
validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania, has the corporate power and the
corporate authority to execute and perform the Note Agreement, the
Other Agreements and such other Security Documents to which it is
a party and to issue the Notes.
3. The Note Agreement and the Other Agreements have been
duly authorized by all necessary partnership action on the part of
the Company, have been duly executed and delivered by the Company
and constitute the legal, valid and binding contracts of the
Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent conveyance or similar laws
affecting creditors' rights generally, and general principles of
equity (regardless of whether the application of such principles
is considered in a proceeding in equity or at law).
4. The Note Agreement and the Other Agreements have been
duly authorized by all necessary corporate action on the part of
the General Partner, have been duly executed and delivered by the
General Partner and constitute the legal, valid and binding
contracts of the General Partner enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent
conveyance or similar laws affecting creditors' rights generally,
and general principles of equity (regardless of whether the
application of such principles is considered in a proceeding in
equity or at law).
5. The Notes have been duly authorized by all necessary
partnership action on the part of the Company, have been duly
executed and delivered by the Company and constitute the legal,
valid and binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent conveyance or similar laws affecting creditors' rights
generally, and general principles of equity (regardless of whether
the application of such principles is considered in a proceeding
in equity or at law).
6. The Notes have been duly authorized by all necessary
partnership action on the part of the General Partner, have been
duly executed and delivered by the General
EXHIBIT C2
(to Note Agreement)
108
Partner and constitute the legal, valid and binding obligations of
the General Partner enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent conveyance or
similar laws affecting creditors' rights generally, and general
principles of equity (regardless of whether the application of
such principles is considered in a proceeding in equity or at
law).
7. The Company has duly authorized by all necessary
partnership action and has duly executed and delivered each of the
Security Documents to which it is a party, and each of them
constitutes the Company's legal, valid and binding obligation
enforceable against it in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency,
moratorium or similar laws affecting creditors' rights generally,
and general principles of equity (regardless of whether the
application of such principles is considered in a proceeding in
equity or at law).
8. The General Partner has duly authorized by all necessary
corporate action and has duly executed and delivered each of the
Security Documents to which it is a party, and each of them
constitutes the General Partner's legal, valid and binding
obligation enforceable against it in accordance with its terms,
except as such enforceability may be limited by bankruptcy,
insolvency, moratorium or similar laws affecting creditors' rights
generally, and general principles of equity (regardless of whether
the application of such principles is considered in a proceeding
in equity or at law).
9. The issuance, sale and delivery of the Notes under the
circumstances contemplated by the Agreement and the Other
Agreements does not, under existing law, require the registration
of the Notes under the Securities Act of 1933, as amended, or the
qualification of an indenture under the Trust Indenture Act of
1939, as amended.
The opinion of Chapman and Cutler shall also state that the
opinion of Morgan, Lewis & Bockius is satisfactory in scope and form to Chapman
and Cutler and that, in their opinion, you and the Other Purchasers are
justified in relying thereon.
In rendering the opinion set forth in paragraph 1 above, Chapman
and Cutler may rely solely upon an examination of the Certificate of Limited
Partnership certified by, and a certificate of good standing of the Company
from, the Secretary of State of the State of Delaware, the partnership agreement
of the Company and Uniform Limited Partnership Act of the State of Delaware. In
rendering the opinion set forth in paragraph 2 above, Chapman and Cutler may
rely solely upon an examination of the Articles of Incorporation certified by,
and a certificate of good standing of the Company from, the Secretary of
Commonwealth of Department of State of the Commonwealth of Pennsylvania, the
By-laws of the Company and the Business Corporation Law of 1988 of the
Commonwealth of Pennsylvania.
The opinion of Chapman and Cutler is limited to the laws of the
State of New York, the Uniform Limited Partnership Act of the State of Delaware,
the Business Corporation Law of 1988 of the Commonwealth of Pennsylvania and the
Federal laws of the United States.
C2-2
109
With respect to matters of fact upon which such opinion is based,
Chapman and Cutler may rely on appropriate certificates of public officials and
officers of the Company and General Partner.
C2-3
110
FORM OF INTERCREDITOR AGREEMENT
EXHIBIT D
(to Note Agreement)
111
FORM OF MORTGAGE, DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT, FINANCING STATEMENT AND FIXTURE FILING
EXHIBIT E-1
(to Note Agreement)
112
FORM OF DEED OF TRUST, ASSIGNMENT OF LEASE AND RENTS, SECURITY
AGREEMENT, FINANCING STATEMENT AND FIXTURE FILING
EXHIBIT E-2
(to Note Agreement)
113
FORM OF GENERAL SECURITY AGREEMENT
EXHIBIT F
(to Note Agreement)
114
FORM OF SUBSIDIARY GUARANTEE
EXHIBIT G
(to Note Agreement)
115
FORM OF SUBSIDIARY SECURITY AGREEMENT
EXHIBIT H
(to Note Agreement)
116
FORM OF FOURTH AMENDMENT
TO 1995 NOTE AGREEMENTS
FORM OF FIRST AMENDMENT
TO 1999 NOTE AGREEMENTS
EXHIBIT I
(to Note Agreement)
117
FORM OF SUBORDINATION PROVISIONS
Subordination. (a) The indebtedness ("Subordinated Debt")
evidenced by this instrument is subordinate and junior in right of payment to
all Senior Debt (as defined in subdivision (b) hereof) of AmeriGas Propane, L.P.
(the "Company") to the extent provided herein.
(b) For all purposes of these subordination provisions the term
"Senior Debt" shall mean all principal of and Make Whole Amount, if any, and
interest on (i) the Company's First Mortgage Notes, Series E, originally issued
in the aggregate principal amount of $80,000,000, pursuant to separate Note
Agreements, dated as of March 15, 2000, between the Company and AmeriGas
Propane, Inc., a Pennsylvania corporation and the institutional investors listed
on Schedule I thereto (and any notes issued in substitution therefor) and (ii)
all other indebtedness of the Company for borrowed money unless, under the
instrument evidencing the same or under which the same is outstanding, it is
expressly provided that such other indebtedness is junior and subordinate to
other indebtedness and obligations of the Company. The Senior Debt shall
continue to be Senior Debt and entitled to the benefits of these subordination
provisions irrespective of any amendment, modification or waiver, of any term of
or extension or renewal of the Senior Debt.
(c) Upon the happening of an event of default with respect to any
Senior Debt, as defined therein or in the instrument under which the same is
outstanding, which occurs at the maturity thereof or which automatically
accelerates or permits the holders thereof to accelerate the maturity thereof,
then, unless and until such event of default shall have been remedied or waived
or shall have ceased to exist, no direct or indirect payment (in cash, property
or securities or by set-off or otherwise) other than Permitted Payments shall be
made on account of the principal of, or premium, if any, or interest on any
Subordinated Debt, or as a sinking fund for the Subordinated Debt, or in respect
of any redemption, retirement, purchase or other acquisition of any of the
Subordinated Debt. For purposes of these subordination provisions, "Permitted
Payments" shall mean (i) payments of in-kind interest and (ii) payments of
Permitted Securities (as defined below) pursuant to subdivision (d) below.
(d) In the event of
(i) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or
other similar proceeding relating to the Company, its
creditors as such or its property,
(ii) any proceeding for the liquidation, dissolution
or other winding-up of the Company, voluntary or
involuntary, whether or not involving insolvency or
bankruptcy proceeding,
(iii) any assignment by the Company for the benefit
of creditors, or
(iv) any other marshalling of the assets of the
Company,
EXHIBIT J
(to Note Agreement)
118
all Senior Debt (including any interest thereon accruing at the legal rate after
the commencement of any such proceedings and any additional interest that would
have accrued thereon but for the commencement of such proceedings) shall first
be paid in full before any payment or distribution, whether in cash, securities
or other property (other than Permitted Payments), shall be made to any holder
of any Subordinated Debt on account of any Subordinated Debt. Any payment or
distribution, whether in cash, securities or other property (other than
securities ("Permitted Securities") of the Company or any other entity provided
for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in these subordination provisions
with respect to Subordinated Debt, to the payment of all Senior Debt at the time
outstanding and to any securities issued in respect thereof under any such plan
of reorganization or readjustment), which would otherwise (but for these
subordination provisions) be payable or deliverable in respect of this
Subordinated Debt shall be paid or delivered directly to the holders of Senior
Debt in accordance with the priorities then existing among such holders until
all Senior Debt (including any interest thereon accruing at the legal rate after
the commencement of any such proceedings and any additional interest that would
have accrued thereon but for the commencement of such proceedings) shall have
been paid in full.
(e) In the event that any holder of Subordinated Debt shall have
the right to declare any Subordinated Debt due and payable as a result of the
occurrence of any one or more defaults in respect thereof, under circumstances
when the terms of subdivision (d) above are not applicable, such holder shall
not declare such Subordinated Debt due and payable or otherwise to be in default
and, solely in its capacity as a holder of such Subordinated Debt, shall take no
action at law or in equity in respect of any such default unless and until all
Senior Debt shall have been paid in full.
(f) If any payment or distribution of any character or any
security, whether in cash, securities or other property (other than Permitted
Payments), shall be received by a holder of Subordinated Debt in contravention
of any of the terms hereof before all the Senior Debt shall have been paid in
full, such payment or distribution or security shall be received in trust for
the benefit of, and shall be paid over or delivered and transferred to, the
holders of the Senior Debt at the time outstanding in accordance with the
priorities then existing among such holders for application to the payment of
all Senior Debt remaining unpaid, to the extent necessary to pay all such Senior
Debt in full. In the event of the failure of any holder of any Subordinated Debt
to endorse or assign any such payment, distribution or security, each holder of
Senior Debt is hereby irrevocably authorized to endorse or assign the same.
(g) No present or future holder of any Senior Debt shall be
prejudiced in the right to enforce subordination of Subordinated Debt by any act
or failure to act on the part of the Company. Nothing contained herein shall
impair, as between the Company and the holder of this Subordinated Debt, the
obligation of the Company to pay to the holder hereof the principal hereof and
interest hereon as and when the same shall become due and payable in accordance
with the terms hereof, or prevent the holder of any Subordinated Debt from
exercising all rights, powers and remedies otherwise permitted by applicable law
or hereunder upon a default or Event of Default hereunder, all subject to the
rights of the holders of the Senior Debt to receive cash, securities or other
property (other than Permitted Payments) otherwise payable or deliverable to the
holders of Subordinated Debt.
J-2
119
(h) Upon the payment in full of all Senior Debt, the holders of
Subordinated Debt shall be subrogated to all rights of any holders of Senior
Debt to receive any further payments or distributions applicable to the Senior
Debt until the Subordinated Debt shall have been paid in full, and, for purposes
of such subrogation, no payment or distribution received by the holders of
Senior Debt of cash, securities or other property to which the holders of the
Subordinated Debt would have been entitled except for these subordination
provisions shall as between the Company and its creditors other than the holders
of Subordinated Debt, on the one hand, and the holders of Subordinated Debt, on
the other, be deemed to be a payment or distribution by the Company to or on
account of Senior Debt.
J-3
120
FORM OF TRANSFER LETTER
[Date]
AmeriGas Propane, L.P.
AmeriGas Propane, Inc.
460 North Gulph Road
King of Prussia, PA 19460
Re: Transfer [of $________ of] the Note
Issued under Note Agreements (the "Note")
from [Transferor] to [Transferee]
Dear Sirs:
Pursuant to Section 14.5 of the Note Agreement dated as of March
15, 2000 (collectively, the "Note Agreements") entered into by AmeriGas Propane,
L.P., a Delaware limited partnership (the "Company"), and AmeriGas Propane,
Inc., a Pennsylvania corporation (the "General Partner"; together with the
Company, the "Obligors"), and [Name of Transferor] (the "Transferor"), this
letter is to advise you that the Transferor has transferred the Note [or a
portion thereof] purchased under the above-referenced Note Agreement to [Name of
Transferee] (the "Transferee"). In connection with such transfer, the Transferee
and the Transferor hereby request that the Obligors deliver to the Transferee a
Note evidencing the above-referenced amount in the form of Exhibit A to the Note
Agreement and otherwise in the form contemplated by Section 14.2 of the Note
Agreement (the "New Note"). Capitalized terms used herein shall have their
respective meanings as defined in the Note Agreement.
The Transferee hereby expressly and unconditionally assumes all
obligations of a holder of Notes arising from and after the date of such
transfer under the Note Agreement and the other Financing Documents as if it
were a party thereto.
The Transferee hereby represents and warrants that:
(a) at least one of the following statements is an accurate
representation as to the source of funds or other assets to be used by it to pay
the purchase price of the Notes purchased by it hereunder:
(i) if it is an insurance company, the funds are
from an "insurance company general account" within the meaning of
Department of Labor Prohibited Transaction Exemption 95-60 (issued
July 12, 1995) and there is no employee benefit plan, treating as
a single plan, all plans maintained by the same employer or
employee organization, with respect to which the amount of the
general account reserves and liabilities for all contracts held by
or on behalf of such plan, exceed ten percent (10%) of the total
reserves and liabilities of such general account (exclusive of
separate account liabilities) plus surplus, as set forth in the
NAIC Annual Statement filed with the Transferee's state of
domicile; or
EXHIBIT K
(to Note Agreement)
121
(ii) if it is an insurance company, to the extent
that any of such funds or other assets constitutes assets
allocated to any separate account maintained by it, (A) such
separate account is a "pooled separate account" within the meaning
of Prohibited Transaction Class Exemption 90-1, in which case the
Transferee has disclosed to the Obligors the names of each
employee benefit plan whose assets in such separate account exceed
10% of the total assets or are expected to exceed 10% of the total
assets of such account as of the date of such purchase (and for
the purposes of this subdivision (ii), all employee benefit plans
maintained by the same employer or employee organization are
deemed to be a single plan), or (B) such separate account contains
only the assets of a specific employee benefit plan, complete and
accurate information as to the identity of which you have
delivered to the Obligors in writing; or
(iii) if it is a "qualified professional asset
manager" or "QPAM" (as defined in Part V of Prohibited Transaction
Class Exemption 84-14, issued March 13, 1984 (the "QPAM
Exemption")), all of such funds or other assets constitute assets
of an "investment fund" (as defined in Part V of the QPAM
Exemption) managed by the Transferee, no employee benefit plan
assets which are included in such investment fund, when combined
with the assets of all other employee benefit plans (A)
established or maintained by the same employer or an affiliate of
such employer or by the same employee organization and (B) managed
by the Transferee, exceed 20% of the total client assets managed
by the Transferee, the conditions of Section I(g) of the QPAM
Exemption are satisfied and the Transferee has disclosed to the
Obligors the names of all employee benefit plans whose assets are
included in such investment fund; or
(iv) if it is not an insurance company, all or a
portion of such funds or other assets consists of funds which do
not constitute assets of any employee benefit plan (other than a
governmental plan exempt from the coverage of ERISA) and the
remaining portion, if any, of such funds consists of funds which
may be deemed to constitute assets of one or more specific
employee benefit plans, complete and accurate information as to
the identity of each of which the Transferee has delivered to the
Obligors in writing.
(b) it is purchasing the Notes for its own account or for one or
more separate accounts maintained by it or for the account of one or more
pension or trust funds, in each case not with a view to or for sale in
connection with any distribution thereof within the meaning of the Securities
Act or with any present intention of distributing or selling any of the Notes,
provided that the disposition of its property shall at all times be within its
control. If it is purchasing for the account of one or more pension or trust
funds, it represents that it has sole investment discretion with respect to the
acquisition and disposition of the Notes to be issued to it pursuant to the Note
Agreement and the determination and decision on its behalf to purchase such
Notes for such pension or trust funds is being made by the same individual or
group of individuals who customarily pass on such investments.
(c) it is one of the following: (i) a "bank" as defined in Section
3(a)(2) of the Securities Act; (ii) an "insurance company" as defined in Section
2(13) of the Securities Act; (iii) an investment company registered under the
Investment Company Act of 1940, as amended; (iv) a corporation or a
Massachusetts or similar business trust that was not formed for the specific
K-2
122
purpose of acquiring the Notes, with total assets in excess of $5,000,000; or
(v) an employee benefit plan within the meaning of Title 1 of ERISA with total
assets in excess of $5,000,000.
1. For the purposes of making any payment to the Transferee
evidenced by the New Note, or any other amount payable thereunder, such payment
shall be made to the following account:
[BANK]
[ADDRESS]
[ABA NO:]
[ACCOUNT NO:]
[REFERENCE:]
[NOMINEE NAME, IF ANY]
2. For the purpose of giving any notice or providing information
to the Transferee required under the New Note or the Note Agreement, any such
notice or information shall be delivered to the Transferee at the following
address:
[ADDRESS]
[ATTENTION:]
[TELEPHONE:]
[TELECOPY:]
3. Please deliver the registered New Note to the Transferee via
overnight courier at the following address:
4. [TO BE COMPLETED IF LESS THAN 100% OF THE NOTES OF THE
TRANSFEROR ARE BEING SOLD.] Please deliver to the Transferor a Note in the
remaining principal amount of $____________ substantially in the form of Exhibit
A to the Note Agreement via overnight courier at the following address:
[ADDRESS]
K-3
123
[TRANSFEROR]
By
-------------------------------
Name:
Title
[TRANSFEREE]
By
-------------------------------
Name:
Title
K-4