FIRST AMENDMENT TO SUBSIDIARY SECURITY AGREEMENT
This FIRST AMENDMENT TO SUBSIDIARY SECURITY AGREEMENT (this
"Amendment"), dated as of July 31, 2001, is entered into by and among the
undersigned Restricted Subsidiary of AmeriGas Propane, L.P., a Delaware limited
partnership ( "Assignor"), Bank of America, N.A. (formerly Bank of America
National Trust and Savings Association), as collateral agent (in such capacity,
the "Collateral Agent") and Mellon Bank, N.A., as cash collateral sub-agent (in
such capacity, the "Cash Collateral Sub-Agent"), and amends that certain
Subsidiary Security Agreement (as the same is in effect immediately prior to the
effectiveness of this Amendment, the "Existing Security Agreement" and as the
same may be amended, supplemented or modified and in effect from time to time,
the "Security Agreement"), dated as of April 19, 1995, by and among the
Assignor, the Collateral Agent and the Cash Collateral Sub-Agent. Capitalized
terms used and not otherwise defined in this Amendment shall have the same
meanings in this Amendment as set forth in the Existing Security Agreement.
RECITALS
The Company, the Collateral Agent and the Cash Collateral
Sub-Agent have agreed to amend the Existing Security Agreement in certain
respects on the terms and subject to the conditions set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and agreements set forth below and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties agree as follows:
SECTION 1. Amendments. On the terms of this Amendment and
subject to the satisfaction of all of the conditions precedent set forth below
in Section 2:
(a) The following definitions are hereby added to Appendix A
of the Existing Security Agreement in their respective appropriate alphabetical
order:
"Commodity Account" shall mean an account maintained
by a Commodity Intermediary in which a Commodity Contract is
carried out for a Commodity Customer.
"Commodity Contract" shall mean a commodity futures
contract, an opinion on a commodity futures contract, a
commodity option or any other contract that, in each case, is
(a) traded on or subject to the rules of a board of trade that
has been designated as a contract market for such a contract
pursuant to the federal commodities laws or (b) traded on a
foreign commodity board of trade, exchange or market, and is
carried on the books of a Commodity Intermediary for a
Commodity Customer.
"Commodity Customer" shall mean a Person for whom a
Commodity Intermediary carries a Commodity Contract on its
books.
"Commodity Intermediary" shall mean (a) a Person who
is registered as a futures commission merchant under the
federal commodities laws or (b) a Person who in the ordinary
course of its business provides clearance or settlement
services for a board of trade that has been designated as a
contract market pursuant to federal commodities laws.
"Entitlement Holder" shall mean a Person identified
in the records of a Securities Intermediary as the Person
having a Security Entitlement against the Securities
Intermediary. If a Person acquires a Security Entitlement by
virtue of Section 8-501(b)(2) or (3) of the UCC, such Person
is the Entitlement Holder.
"Financial Asset" shall mean (a) a Security, (b) an
obligation of a Person or a share, participation or other
interest in a Person or in property or an enterprise of a
Person, which is, or is of a type, dealt with in or traded on
financial markets, or which is recognized in any area in which
it is issued or dealt in as a medium for investment or (c) any
property that is held by a Securities Intermediary for another
Person in a Securities Account if the Securities Intermediary
has expressly agreed with the other Person that the property
is to be treated as a Financial Asset under Article 8 of the
UCC. As the context requires, the term Financial Asset shall
mean either the interest itself or the means by which a
Person's claim to it is evidenced, including a certified or
uncertified Security, a certificate representing a Security or
a Security Entitlement.
"Investment Property" shall mean all Securities
(whether certificated or uncertificated), Security
Entitlements, Securities Accounts, Commodity Contracts and
Commodity Accounts.
"Parity Debt" shall mean Indebtedness of the Company
that is (a) incurred in accordance with (i) Sections 10.1(a),
10.1(b), 10.1(e), 10.1(f) or 10.1(k) of the Note Agreements
and (ii) Sections 8.1(a), 8.1(b), 8.1(e), 8.1(f) and 8.1(l) of
the Credit Agreement (other than Indebtedness evidenced by the
Notes or the Bank Notes, but including in any event the Public
Notes) and (b) secured by the respective Liens of the Security
Documents in accordance with (i) Sections 10.2(j), (k), (l) or
(m) of the Note Agreements and (ii) Sections 8.3(j), (k), (l)
or (m) of the Credit Agreement.
"Permitted Investment Account" shall mean a
"securities account" within the meaning of Section 8-501 of
the UCC maintained at a Permitted Bank or at a registered
broker-dealer of comparable credit quality and with respect to
which account the Collateral Agent (or the Cash Collateral
Sub-Agent acting at the direction of the Collateral Agent) has
a first priority perfected security interest (subject to any
lien of the Permitted Bank or registered broker-dealer solely
for usual and customary fees and costs relating to the
securities account and advances or overdrafts created in the
ordinary course of business in connection with the settlement
of trading activity in the securities account) and has
established "control" within the meaning of the UCC pursuant
to an account control agreement reasonably satisfactory to the
Collateral Agent.
-2-
"Securities" shall mean any obligations of an issuer
or any shares, participations or other interests in an issuer
or in property or an enterprise of an issuer which (a) are
represented by a certificate representing a security in bearer
or registered form, or the transfer of which may be registered
upon books maintained for that purpose by or on behalf of the
issuer, (b) are one of a class or series or by their terms are
divisible into a class or series of shares, participations,
interests or obligations and (c)(i) are, or are of a type,
dealt with or trade on securities exchanges or securities
markets or (ii) are a medium for investment and by their terms
expressly provide that they are a security governed by Article
8 of the UCC.
"Securities Account" shall mean an account to which a
Financial Asset is or may be credited in accordance with an
agreement under which the Person maintaining the account
undertakes to treat the Person for whom the account is
maintained as entitled to exercise rights that comprise the
Financial Asset.
"Securities Entitlements" shall mean the rights and
property interests of an Entitlement Holder with respect to a
Financial Asset.
"Securities Intermediary" shall mean (a) a clearing
corporation or (b) a Person, including a bank or broker, that
in the ordinary course of its business maintains Securities
Accounts for others and is acting in that capacity.
(b) Section 1.1(a) of the Existing Security Agreement is
hereby amended to read in its entirety as follows:
As security for the prompt and complete payment and
performance when due of all of the Obligations, each Assignor
does hereby sell, assign and transfer unto the Collateral
Agent for the benefit of the Secured Creditors, and does
hereby grant to the Collateral Agent for the benefit of the
Secured Creditors, a continuing security interest of first
priority (subject to Liens evidenced by Permitted Filings and
Liens permitted by the Note Agreements, the Credit Agreement
and the Parity Debt Agreements) in, all of the right, title
and interest of such Assignor in, to and under all of the
following, whether now existing or hereafter from time to time
acquired (collectively, the "Collateral"): (i) each and every
Receivable, (ii) all Contracts, other than Contracts the
collateral assignment of which is prohibited by law or
judicial determination or as to which such Assignor has not
been able to obtain consent for the collateral assignment
hereunder and such requirement for consent is not invalidated
by applicable law or course of conduct (but including without
limitation the License Agreements), together with all Contract
Rights arising thereunder, (iii) all Equipment, including
without limitation all of the Railcars and Vehicles (and the
certificates of title and other registrations relating
thereto), (iv) all Inventory, (v) all Investment Property,
(vi) all Marks, together with the registrations and right to
all renewals thereof, and the goodwill of the business of such
Assignor symbolized by the Marks, (vii) all Patents and
Copyrights, (viii) all computer programs of such Assignor and
all intellectual property rights therein and all other
proprietary information of such
-3-
Assignor, including, but not limited to, trade secrets, (ix)
the Cash Concentration Account established for such Assignor
and all monies, securities and instruments deposited or
required to be deposited in such Cash Concentration Account,
(x) all other Goods, General Intangibles, Chattel Paper,
Documents, Instruments and the Pledged Shares (and
Distributions and Dividends in respect thereof) and (xi) all
Proceeds and products of any and all Collateral referred to in
clauses (i) through (x) of this Section 1.1(a).
(c) The first sentence of Section 2.9 of the Existing Security
Agreement is hereby amended to read in its entirety as follows:
The Cash Collateral Sub-Agent has hereby established in its
own name and for the benefit of the Collateral Agent and the
Secured Creditors, at the Cash Collateral Sub-Agent's office
located at Three Mellon Bank Center, Pittsburgh, PA 15258-0001
an account (account no. 094-0764) with respect to each
Restricted Subsidiary (such account is referred to herein as
the "Cash Concentration Account"), for purposes of this
Agreement.
(d) Section 2.11 of the Existing Security Agreement is hereby
amended to read in its entirety as follows:
2.11 Investment of Funds Deposited in the Cash
Concentration Account. (a) Unless and until there shall have
occurred and be continuing (i) a Bankruptcy Event or (ii) any
other General Event of Default, but in the case of this clause
(ii) only to the extent the Collateral Agent has so notified
the Company, and to the extent the Collateral has not
previously been applied pursuant to Article VIII hereof, the
Cash Collateral Sub-Agent will (and after the occurrence and
during the continuance of (i) a Bankruptcy Event or (ii) any
other General Event of Default, but in the case of clause (ii)
only to the extent the Collateral Agent has so notified the
Company, the Cash Collateral Sub-Agent may only if directed by
the Collateral Agent (acting pursuant to a Direction Notice))
from time to time, at the request of the Company, invest funds
on deposit in the Cash Concentration Account in Permitted
Investments. Except as set forth in Subsection (b) below,
investments made pursuant to this Section 2.11, and all
proceeds thereof, shall be held in the Cash Concentration
Account as part of the Collateral. All such investments shall
be made for the benefit of the Collateral Agent and the
Secured Creditors. All risk of loss-in respect of investments
made pursuant to this Section 2.11 shall be on the Company.
(b) To the extent the Collateral has not previously
been applied pursuant to Article VIII hereof, the Company
shall have the right to transfer amounts from the Cash
Concentration Account to one or more Permitted Investment
Accounts from time to time solely for the purpose of making
temporary investments in Permitted Investments which shall be
held in the applicable Permitted Investment Account; provided
that upon the occurrence and continuance of a General Event of
Default, the Company shall no longer be permitted to transfer
amounts from the Cash
-4-
Concentration Account pursuant to this Section 2.11(b) and the
Cash Collateral Sub-Agent shall then have the right, acting
upon the instruction of the Collateral Agent acting pursuant
to a Direction Notice, to transfer all funds from the
Permitted Investment Accounts to the Cash Concentration
Account and liquidate any Permitted Investments.
The Company shall be permitted to withdraw amounts
from the Permitted Investment Accounts to the same extent that
it is otherwise permitted to withdraw amounts from the Cash
Concentration Account.
(e) Section 2.12(b) of the Existing Security Agreement is
hereby amended by adding the following clause (w) before clause (x) therein:
(w) such Collateral is transferred to a Permitted
Investment Account as provided by Section 2.11(b) hereof,
SECTION 2. Conditions to Effectiveness of Amendments . The
amendments set forth in Section 1 of this Amendment shall become effective only
upon the satisfaction of all of the following conditions precedent (the date of
satisfaction of all such conditions being referred to as the "Amendment
Effective Date"):
(a) First Amendment. On or before the Amendment Effective
Date, the Collateral Agent shall have received, on behalf of the Secured
Creditors, this Amendment, duly executed and delivered by Assignor, the
Collateral Agent and the Cash-Collateral Sub-Agent.
(b) Direction Notice. On or before the Amendment Effective
Date, the Collateral Agreement shall have received a Direction Notice, in form
and substance satisfactory to the Collateral Agent, from the Requisite
Percentage with respect to, among other things, the amendments to the Security
Documents and the modifications to the General Collateral contemplated by this
Amendment.
SECTION 3. The Assignor's Representations and Warranties. In
order to induce the Collateral Agent on behalf of the Secured Creditors to enter
into this Amendment and to amend the Existing Security Agreement in the manner
provided in this Amendment, Assignor represents and warrants to the Collateral
Agent, the Cash Collateral Sub-Agent and each Secured Creditor as of the
Amendment Effective Date as follows:
(a) Power and Authority. Assignor has all requisite corporate
or partnership power and authority to enter into this Amendment and to carry out
the transactions contemplated by, and perform its obligations under, the
Existing Security Agreement as amended by this Amendment (hereafter referred to
as the "Amended Security Agreement").
(b) Authorization of Agreements. The execution and delivery of
this Amendment by Assignor and the performance of the Amended Security Agreement
by Assignor have been duly authorized by all necessary action, and this
Amendment has been duly executed and delivered by Assignor.
-5-
(c) Enforceability. The Amended Security Agreement constitutes
the legal, valid and binding obligation of Assignor enforceable against Assignor
in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium or similar laws affecting creditors' rights
generally.
(d) No Conflict. The execution, delivery and performance by
Assignor of this Amendment, and the performance by Assignor of the Amended
Security Agreement, do not and will not (i) violate (x) any provision of the
certificate of incorporation or other organizational documents of Assignor, (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 Assignor 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 Assignor to create) any Lien not permitted by
Section 8.3 of the Credit Agreement and under Section 10.2 of the Note
Agreements.
(e) Governmental Consents. Except for Routine Permits, no
consent, approval or authorization of, or declaration or filing with, any
Governmental Authority is required for the valid execution, delivery and
performance of this Amendment by Assignor.
(f) Investment Property. All Investment Property owned by
Assignor as of the Amendment Effective Date is listed on Schedule I hereto.
(g) Representations and Warranties in the Existing Security
Agreement. Assignor confirms that as of the Amendment Effective Date, the
representations and warranties contained in Article II of the Existing Security
Agreement are (before and after giving effect to this Amendment) true and
correct in all material respects (except to the extent such representations and
warranties expressly relate to an earlier time or date, in which case they shall
have been true and correct in all material respects as of such earlier time or
date) with the same effect as if made on and as of the Amendment Effective Date.
SECTION 4. Miscellaneous.
(a) Reference to and Effect on the Existing Security Agreement
and the Other Security Documents.
(i) Except as specifically amended by this Amendment and the
documents executed and delivered in connection herewith, the Existing
Security Agreement and the other Security Documents shall remain in
full force and effect and are hereby ratified and confirmed. This
Amendment shall be a "Security Document" under the Intercreditor
Agreement.
(ii) The execution and delivery of this Amendment and
performance of the Amended Security Agreement shall not, except as
expressly provided herein, constitute a waiver of any provision of, or
operate as a waiver of any right, power or remedy of the Collateral
Agent, the Cash Collateral Sub-Agent or any Secured Creditor under, the
Existing Security Agreement or any other Security Document.
-6-
(iii) Upon the conditions precedent set forth herein being
satisfied, this Amendment shall be construed as one with the Existing
Security Agreement, and the Existing Security Agreement shall, where
the context requires, be read and construed throughout so as to
incorporate this Amendment.
(b) Headings. Section and subsection headings in this
Amendment are included for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose or be given any
substantive effect.
(c) Counterparts. This Amendment may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(d) Governing Law. This Amendment shall be governed by and
construed according to the laws of the State of New York.
[Signature Pages to Follow]
-7-
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the date first above written.
ASSIGNOR:
AMERIGAS PROPANE PARTS &
SERVICE, INC., a Delaware corporation
By:
----------------------------------------
Name: Robert W. Krick
Title: Treasurer
COLLATERAL AGENT:
BANK OF AMERICA, N.A., as Collateral Agent
By:
---------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
CASH COLLATERAL SUB-AGENT:
MELLON BANK, N.A., as Cash Collateral
Sub-Agent
By:
----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
SCHEDULE I
INVESTMENT PROPERTY
[This Schedule I is to be completed by the Assignors and shall describe all
Investment Property owned by the Assignors.]