EXECUTION COPY
AMENDMENT NO. 1
TO
CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (this "AMENDMENT") dated as of
August 30, 2004, is by and between AMERIGAS PROPANE, L.P., a Delaware limited
partnership (the "BORROWER"), AMERIGAS PROPANE, INC., a Pennsylvania corporation
(the "GENERAL PARTNER"), PETROLANE INCORPORATED, a Pennsylvania corporation
("PETROLANE"; the General Partner and Petrolane are, on a joint and several
basis, the "GUARANTORS"), each of the Banks that is a signatory hereto
(collectively, the "BANKS"), WACHOVIA BANK, NATIONAL ASSOCIATION ("WACHOVIA"),
as administrative agent for the Banks (in such capacity , together with its
successors and assigns in such capacity, the "AGENT"), Issuing Bank and
Swingline Bank. CITICORP USA, INC., as Syndication Agent, CREDIT SUISSE FIRST
BOSTON, acting through its Cayman Islands Branch, as Documentation Agent (the
Syndication Agent and Documentation Agent are collectively referred to herein as
the "OTHER AGENTS"). Except as otherwise defined in this Amendment, terms
defined in the Credit Agreement (as defined below) are used herein as defined
therein.
WITNESSETH:
WHEREAS, the Borrower, the Guarantors, the Agent, the Other Agents and the
Banks are parties to that certain Credit Agreement dated as of August 28, 2003
(as in effect on the date hereof, the "CREDIT AGREEMENT");
WHEREAS, the Borrower and Guarantors have requested that the Agent, the
Other Agents and the Banks agree to certain modifications to the terms of the
Credit Agreement, including, without limitation, a request that the Maturity
Date be extended for a period of two (2) years; and
WHEREAS, the Agent, the Other Agents and the Banks have agreed to make
such modifications on the terms and conditions set forth in this Amendment;
NOW THEREFORE, the parties hereto hereby agree as follows:
Section 1. Amendments. Subject to the satisfaction of the conditions
precedent specified in Section 4 below, but effective as of the date hereof, the
Credit Agreement shall be amended as follows:
1.01. Definitions.
(a) Section 1.1 of the Credit Agreement shall be amended by amending
and restating the following definitions to read as follows:
"ACQUISITION LOAN TERMINATION DATE" means the earlier to occur of:
(a) October 15, 2008; and
(b) the date on which the Acquisition Commitments terminate in
accordance with the provisions of this Agreement.
"APPLICABLE MARGIN" means
(i) with respect to Base Rate Loans, 0%; and
(ii) with respect to Eurodollar Rate Loans,
the applicable margin set forth below at such time as a Pricing Tier
(the "PRICING TIER") set forth below is applicable:
Pricing Tier Funded Debt Ratio Margin
- ------------ ----------------- ------
I Less than or equal to 2.25x 1.0000%
II Greater than 2.25x but less than or
equal to 2.75x 1.2500%
III Greater than 2.75x but less than or
equal to 3.25x 1.3750%
IV Greater than 3.25x but less than or
equal to 3.75x 1.6250%
V Greater than 3.75x but less than or
equal to 4.25x 1.7500%
VI Greater than 4.25x but less than or
equal to 4.75x 2.0000%
VII Greater than 4.75 2.2500%
For the purpose of determining the applicable Pricing Tier above and
subject to the last sentence of this paragraph, EBITDA shall be
determined as at the end of each fiscal quarter for the four fiscal
quarters then ending and Funded Debt shall be determined as at the
end of each fiscal quarter for which such calculation is being
determined. Pricing changes shall be effective on the later of (i)
45 days after the end of each of the first three fiscal quarters of
each fiscal year and 90 days after each fiscal year end and (ii) the
Agent's receipt of financial statements hereunder for such fiscal
quarter or fiscal year; provided, however, that if the financial
statements are not delivered when due in accordance with Section
7.1, then Pricing Tier VII shall apply as of the first Business Day
after the date on which such financial statements were required to
have been delivered until the date upon which such financial
statements are delivered to the Agent. For the period from the
Closing Date through December 29, 2003, the applicable Pricing Tier
shall be determined by reference to the Compliance Certificate
delivered pursuant to Section 5.1(k).
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"REVOLVING TERMINATION DATE" means the earlier to occur of:
(a) October 15, 2008, as such date may be extended pursuant to
Section 2.15 hereof; and
(b) the date on which the Revolving Commitments terminate in
accordance with the provisions of this Agreement.
1.02. Fee Letter. Section 2.10(a) of the Credit Agreement shall be
deleted in its entirety and the following is substituted in its place:
"(a) Arrangement, Agency Fees. The Borrower shall pay all fees as
required by the letter agreement ("FEE LETTER") among the Borrower, the
Agent and the Arranger dated July 27, 2004."
1.03. Schedule 2.1. Schedule 2.1 of the Credit Agreement shall be
deleted in its entirety and Schedule 2.1 attached hereto is substituted in
its place.
Section 2. Consent to Amendment No. 2 to each Security Agreement. Subject
to the satisfaction of the conditions precedent specified in Section 4 below,
but effective as of the date hereof, the Agent, the Other Agents and the Banks
hereby consent to the amendment and restatement of Section 2.10(a) of General
Security Agreement and Section 2.10(a) of the Subsidiary Security Agreement to
read substantially as set forth in Schedule 1 and Schedule 2 hereto
respectively.
Section 3. Representations and Warranties. The Borrower and each Guarantor
represent and warrant to the Agent and each Bank that:
(a) It has taken all necessary action to authorize the execution,
delivery and performance of this Amendment.
(b) This Amendment has been duly executed and delivered by the
Borrower or Guarantor, as applicable, and constitutes its legal, valid and
binding obligation, enforceable in accordance with its terms, except as such
enforceability may be limited by (i) bankruptcy, insolvency, moratorium or
similar laws affecting creditors' rights generally and (ii) general principles
of equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity).
(c) 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.
(d) The representations and warranties set forth in Article VI of
the Credit Agreement (Sections 6.1 through 6.14 and Sections 6.17 through 6.23
with respect to the Borrower; Section 6.15 with respect to Petrolane; and
Section 6.16 with respect to the General Partner), as amended hereby, are true
and correct in all material respects on the date hereof as if made on and as of
the date hereof and as if each reference in said Article VI to "this Agreement"
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includes reference to this Amendment and the Credit Agreement as amended by this
Amendment.
(e) With respect to the Borrower, the representations and warranties
contained in the General Security Agreement (except those certain
representations and warranties contained in the General Security Agreement that
refer to the Schedules or Annexes of the General Security Agreement) are true
and correct in all material respects on and as of such date, as though made on
and as of such date except as affected by the completion of the transactions
referred to herein.
(f) There has occurred since June 30, 2004, no event or circumstance
that has resulted in, or presents a reasonable likelihood of having, a Material
Adverse Effect.
(g) No Default or Event of Default under the Credit Agreement has
occurred and is continuing on the date hereof (before and after giving effect to
the Amendment).
(h) There are no set-offs or defenses against the Notes, the Credit
Agreement as amended by this Amendment or any other Loan Document.
Section 4. Conditions Precedent. The effectiveness of this Amendment is
subject to the satisfaction of the following conditions precedent:
4.01. Execution. This Amendment shall have been executed and
delivered by the Borrower, the Guarantors, the Agent, the Other Agents and the
Banks, and the Consent attached hereto shall have been executed and delivered by
the Restricted Subsidiaries.
4.02. Documents. The Agent shall have received the following
documents, each of which shall be in form and substance satisfactory to the
Agent:
(a) Resolutions; Incumbency.
(i) Copies of partnership authorizations for the Borrower and
resolutions of the board of directors of each Guarantor authorizing
the transactions contemplated hereby to which it is a party,
certified as of the date hereof by the Secretary or an Assistant
Secretary of such Person; and
(ii) A certificate of the Secretary or Assistant Secretary of
the Borrower and each Guarantor certifying the names and true
signatures of its officers authorized to execute, deliver and
perform, as applicable, on behalf of such Person, the Loan Documents
to which it is a party.
(b) Good Standing. A good standing certificate for the Borrower and
each Guarantor from the Secretary of State (or similar, applicable
Governmental Authority) of its state of incorporation or organization, as
applicable (in no case earlier than 60 days prior to the date hereof).
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(c) Legal Opinions. An opinion of Morgan, Lewis & Bockius LLP,
special counsel for the Borrower and Guarantor, in form and substance
reasonably satisfactory to the Agent.
(d) Other Documents. Such other approvals, opinions, documents or
materials as the Agent may reasonably request.
4.03. Fees. Receipt by the Agent of all fees required to be received
in connection with this Amendment.
Section 5. Expenses. The Borrower shall pay (a) all out-of-pocket expenses
of the Agent (including reasonable fees and disbursements of counsel for the
Agent) in connection with the preparation of this Amendment and any other
instruments or documents to be delivered hereunder, any waiver or consent
hereunder or thereunder or any amendment hereof or thereof; and (b) all
out-of-pocket expenses incurred by the Agent and each of the Banks, including
fees and disbursements of counsel for the Agent and each Bank, in connection
with any Event of Default and collection and other enforcement proceedings
resulting therefrom, including out-of-pocket expenses incurred in enforcing the
Credit Agreement as amended by this Amendment, and the other Loan Documents.
Section 6. General. References (i) in the Credit Agreement (including
references to the Credit Agreement as amended hereby) to "this Agreement" (and
indirect references such as "hereunder," "hereof" and words of like import
referring to the Credit Agreement), and (ii) in the other Loan Documents to "the
Credit Agreement" and "the Agreement" (and indirect references such as
"thereunder," "thereof" and words of like import referring to the Credit
Agreement) shall be deemed to be references to the Credit Agreement as amended
by this Amendment.
Section 7. Miscellaneous. Except as herein provided, the Credit Agreement
and all other Loan Documents shall remain unchanged and shall continue to be in
full force and effect and are hereby ratified and confirmed in all respects.
This Amendment may be executed in any number of counterparts, all of which taken
together shall constitute one and the same amendatory instrument, and any of the
parties hereto may execute this Amendment by signing any such counterpart. This
Amendment shall be governed by, and construed in accordance with, the law of the
State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first above written.
BORROWER:
AMERIGAS PROPANE, L.P.
By: AMERIGAS PROPANE, INC.,
as General Partner
By: ___________________________________
Name:
Title:
GUARANTORS:
AMERIGAS PROPANE, INC.
By: ___________________________________
Name:
Title:
PETROLANE INCORPORATED
By: ___________________________________
Name:
Title:
Signature Page
to
Amendment No. 1 to Credit Agreement
(AmeriGas Propane, L.P.)
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Agent, Issuing Agent, Swing Line
Agent and a Bank
By: ___________________________________
Name: Lawrence P. Sullivan
Title: Director
Signature Page
to
Amendment No. 1 to Credit Agreement
(AmeriGas Propane, L.P.)
CITICORP USA, INC.,
as Syndication Agent and as a Bank
By: ___________________________________
Name:
Title:
Signature Page
to
Amendment No. 1 to Credit Agreement
(AmeriGas Propane, L.P.)
CREDIT SUISSE FIRST BOSTON, acting
through its Cayman Islands Branch, as
Documentation Agent and as a Bank
By: ___________________________________
Name:
Title:
Signature Page
to
Amendment No. 1 to Credit Agreement
(AmeriGas Propane, L.P.)
MANUFACTURERS AND TRADERS
TRUST COMPANY, a successor in interest
to ALLFIRST BANK, as a Bank
By: ___________________________________
Name:
Title:
Signature Page
to
Amendment No. 1 to Credit Agreement
(AmeriGas Propane, L.P.)
MELLON BANK, N.A.,
as a Bank
By: ___________________________________
Name:
Title:
Signature Page
to
Amendment No. 1 to Credit Agreement
(AmeriGas Propane, L.P.)
NATIONAL CITY BANK OF
PENNSYLVANIA, as a Bank
By: ___________________________________
Name:
Title:
Signature Page
to
Amendment No. 1 to Credit Agreement
(AmeriGas Propane, L.P.)
PNC BANK, NATIONAL ASSOCIATION,
as a Bank
By: ___________________________________
Name:
Title:
Signature Page
to
Amendment No. 1 to Credit Agreement
(AmeriGas Propane, L.P.)
SUN NATIONAL BANK, as a Bank
By: ___________________________________
Name:
Title:
Signature Page
to
Amendment No. 1 to Credit Agreement
(AmeriGas Propane, L.P.)
CONSENT
Each of the undersigned hereby acknowledges receipt of the foregoing Amendment
and hereby acknowledges and reaffirms that its Subsidiary Guarantee and its
Subsidiary Security Agreement shall remain in full force and effect and is
hereby ratified and confirmed in all respects notwithstanding the execution of
such Amendment and the consummation of the transactions described or otherwise
contemplated therein. Each of the undersigned hereby acknowledges, confirms and
ratifies (i) its obligations under the Subsidiary Guarantee and the Subsidiary
Security Agreement are valid and binding obligations upon it and (ii) the
Subsidiary Security Agreement and all of the Collateral described therein does,
and shall continue to, secure the payment of all of the Obligations under the
Credit Agreement (before and after giving effect to the Amendment) and the
Notes. Each of the undersigned further acknowledges, it possesses no defense,
offset, counterclaim, or cross-claim whatsoever to the enforcement of such
Subsidiary Guarantee and Subsidiary Security Agreement.
Date: August 30, 2004
AMERIGAS PROPANE PARTS & SERVICE, INC.
By: ___________________________________
Name:
Title:
AMERIGAS EAGLE PROPANE, INC. (formerly
Columbia Propane Corporation)
By: ___________________________________
Name:
Title:
AMERIGAS EAGLE HOLDINGS, INC.
(formerly CP Holdings, Inc.)
By: ___________________________________
Name:
Title:
Signature Page
to
Amendment No. 1 to Credit Agreement
(AmeriGas Propane, L.P.)
AMERIGAS EAGLE PROPANE, L.P.
By: ___________________________________
Name:
Title:
AmeriGas Eagle Parts & Service, Inc.
By: ___________________________________
Name:
Title:
Signature Page
to
Amendment No. 1 to Credit Agreement
(AmeriGas Propane, L.P.)
SCHEDULE 1
2.10. Cash Management System: Deposits to the Cash Concentration Account. (a)
The Company has established a cash management system whereby the Company and
each Restricted Subsidiary have established various local depository accounts
and various local disbursement accounts (each, a "LOCAL ACCOUNT"; collectively,
the "LOCAL ACCOUNTS") into which cash, checks, drafts, securities, certificates
and instruments (the "COLLECTED FUNDS") received by the Company and its
Restricted Subsidiaries (and not otherwise deposited directly into the Cash
Concentration Account) shall be deposited on each Business Day that such
Collected Funds exceed $5,000 or no later than the last Business Day of each
calendar week, if no such deposits have been made in such calendar week. The
Collected Funds held in any Local Account shall be transferred through the
automated clearing-house system to the Cash Concentration Account on each
Business Day that such Collected Funds in such Local Account exceed $5,000 or no
later than the last Business Day of each calendar week, if no such transfers
have been made in such calendar week.
Schedule 1
SCHEDULE 2
2.10. Cash Management System: Deposits to the Cash Concentration Account. (a)
Each Assignor has established a cash management system whereby each Assignor and
each of its subsidiaries that is a Restricted Subsidiary have established
various local depository accounts and various local disbursement accounts (each,
a "LOCAL ACCOUNT"; collectively, the "LOCAL ACCOUNTS") into which cash, checks,
drafts, securities, certificates and instruments (the "COLLECTED FUNDS")
received by such Assignor and such subsidiaries (and not otherwise deposited
directly into the Cash Concentration Account) shall be deposited on each
Business Day that such Collected Funds exceed $5,000 or no later than the last
Business Day of each calendar week, if no such deposits have been made in such
calendar week. The Collected Funds held in any Local Account shall be
transferred through the automated clearing-house system to the Cash
Concentration Account on each Business Day that such Collected Funds in such
Local Account exceed $5,000 or no later than the last Business Day of each
calendar week, if no such transfers have been made in such calendar week.
Schedule 2
SCHEDULE 2
SCHEDULE 2.1
COMMITMENTS AND PERCENTAGES
REVOLVING ACQUISITION TOTAL REVOLVING LOAN ACQUISITION
LENDER COMMITMENT COMMITMENT COMMITMENT PERCENTAGE PERCENTAGE
- -------------------------- --------------- ---------------- ---------------- ---------------- -------------
Wachovia Bank, National
Association $ 18,285,714 $ 13,714,286 $ 32,000,000 18.285714% 18.285714%
Citicorp USA, Inc. $ 16,571,429 $ 12,428,571 $ 29,000,000 16.571429% 16.571429%
Credit Suisse First Boston $ 16,571,429 $ 12,428,571 $ 29,000,000 16.571429% 16.571429%
Mellon Bank, N.A $ 11,428,571 $ 8,571,429 $ 20,000,000 11.428571% 11.428571%
PNC Bank, National
Association $ 11,428,571 $ 8,571,429 $ 20,000,000 11.428571% 11.428571%
National City Bank of
Pennsylvania 8,571,429 $ 6,428,571 $ 15,000,000 8.571429% 8.571429%
Sun National Bank 8,571,429 $ 6,428,571 $ 15,000,000 8.571429% 8.571429%
M&T Bank 8,571,429 $ 6,428,571 $ 15,000,000 8.571429% 8.571429%
--------------- --------------- --------------- ---------- ----------
TOTAL $ 100,000,000 $ 75,000,000 $ 175,000,000 100.000000% 100.000000%
--------------- --------------- --------------- ---------- ----------
Schedule 2.1