EXHIBIT 10.10(a)
EXECUTION COPY
SECOND AMENDMENT TO GENERAL SECURITY AGREEMENT
This SECOND AMENDMENT TO GENERAL SECURITY AGREEMENT (this "AMENDMENT")
dated as of October 14, 2004, is by and among AMERIGAS PROPANE, L.P., a Delaware
limited partnership (the "COMPANY"), WACHOVIA BANK, NATIONAL 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").
WITNESSETH:
WHEREAS, the Company, Bank of America, N.A. (formerly Bank of America
National Trust and Savings Association) ("BofA") and the Cash Collateral
Sub-Agent are parties to that certain General Security Agreement, dated as of
April 19, 1995, as amended by that certain First Amendment to General Security
Agreement, dated as of July 31, 2001 (as amended, the "SECURITY AGREEMENT");
WHEREAS, on August 28, 2003 and pursuant to Section 12 of that certain
Intercreditor and Agency Agreement dated as of April 19, 1995 among the Company,
AmeriGas Propane, Inc., Petrolane Incorporated, BofA and the other parties
thereto (as amended, supplement, assigned or otherwise modified from time to
time pursuant to the terms thereof, the "INTERCREDITOR AGREEMENT"), BofA
resigned as collateral agent and the Collateral Agent was appointed as successor
collateral agent to BofA; and
WHEREAS, the Company has requested that the Collateral Agent agree to
certain modifications to the terms of the Security Agreement, and the Collateral
Agent has agreed to make such modifications on the terms and conditions set
forth in this Amendment.
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which is acknowledged,
the parties hereto hereby agree as follows:
SECTION 1. Definitions; Incorporation of Recitals. Except as otherwise
defined in this Amendment, capitalized terms used herein and not otherwise
defined herein have the meanings ascribed thereto in the Security Agreement.
Each of the above recitals is incorporated herein and made a part hereof.
SECTION 2. Amendment to Section 2.10(a) of the Security Agreement. Subject
to the satisfaction of the conditions precedent specified in Section 4 below,
but effective as of the date hereof, the Security Agreement shall be amended as
follows by deleting Section 2.10(a) of the Security Agreement and replacing it
with the following:
"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."
SECTION 3. Company's Representations and Warranties. The Company
represents and warrants to the Collateral Agent that after giving effect to the
amendments provided for herein: (a) the representations and warranties set forth
in Article II of the Security Agreement are true and correct in all material
respects on the date hereof as if made on and as of the date hereof (except to
the extent such representations and warranties expressly are limited to an
earlier date, in which case such representations and warranties are true and
correct on and as of such earlier date) and as if each reference in said Article
II to "this Agreement" includes reference to the Security Agreement as amended
by this Amendment; (b) no General Default or General Event of Default has
occurred and is continuing on the date hereof and (c) there are no set-offs or
defenses against the Security Agreement as amended by this Amendment or any
other Loan Document (as such term is defined in that certain Credit Agreement,
dated as of August 28, 2003, by among the Company, as Borrower, General Partner,
as guarantor, Petrolane, as guarantor, Wachovia Bank, National Association, as
administrative agent and the banks a party thereto (as amended, restated,
supplemented or otherwise modified from time to time in accordance with its
terms, the "CREDIT AGREEMENT")), Note Agreement or Parity Debt Agreement.
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 Company, the Collateral Agent and the Cash Collateral Sub-Agent.
4.02. Direction Notice. The Collateral Agent 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 amendment
to the Security Agreement and the Subsidiary Security Agreement.
4.03 Documents. The Collateral Agent shall have received the following
documents, each of which shall be in form and substance satisfactory to the
Collateral Agent:
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(a) Resolutions; Incumbency.
(i) Copies of corporate or partnership authorizations for the
Company 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 the Company; and
(ii) A certificate of the Secretary or Assistant Secretary of
the Company certifying the names and true signatures of its officers
authorized to execute, deliver and perform, as applicable, on behalf
of such Person, this Amendment.
(b) Legal Opinions. An opinion of Morgan, Lewis & Bockius LLP,
special counsel for the Company, in form and substance reasonably
satisfactory to the Collateral Agent.
(c) Amendment to Credit Agreement. A copy of the Amendment No. 1 to
Credit Agreement executed by the Company, General Partner, Petrolane,
Wachovia Bank, National Association, as administrative agent and each of
the banks listed therein.
(d) Other Documents. Such other approvals, opinions, documents or
materials as the Collateral Agent may reasonably request.
4.03. Fees. Receipt by Collateral Agent of all fees and disbursements of
counsel of the Collateral Agent incurred in connection with this Amendment.
SECTION 5. Expenses. The Company shall pay (a) all out-of-pocket expenses
of the Collateral Agent (including reasonable fees and disbursements of counsel
for the Collateral 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) if a
General Event of Default occurs, all out-of-pocket expenses incurred by the
Collateral Agent and each of the holders of Parity Debt, including fees and
disbursements of counsel of the Collateral Agent and each holder of Parity Debt,
in connection with such General Event of Default and collection and other
enforcement proceedings resulting therefrom, including out-of-pocket expenses
incurred in enforcing the Security Agreement as amended by this Amendment, and
the Parity Debt Agreements and the other Loan Documents (as such term is defined
in the Credit Agreement).
SECTION 6. Miscellaneous.
(a) General. References (i) in the Security Agreement (including
references to the Security Agreement as amended hereby) to "this Agreement" (and
indirect references such as "hereunder," "hereof" and words of like import
referring to the Security Agreement); (ii) in the Credit Agreement to "the
General Security Agreement"; (iii) in the other Security Documents and Parity
Debt Agreements to "the General Security Agreement"; and (iv) indirect
references such as "thereunder," "thereof" and words of like import referring to
the Security Agreement, shall be deemed to be references to the Security
Agreement as amended by this Amendment. This Amendment shall be a "Security
Document" under the Intercreditor Agreement.
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(b) Ratification. Except as herein provided, the Security Agreement, the
Parity Debt Agreements and all other Security Documents shall remain unchanged
and shall continue to be in full force and effect and are hereby ratified and
confirmed in all respects.
(c) Counterparts. 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.
(d) Governing Law. This Amendment shall be governed by, and construed in
accordance with, the law of the State of New York.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first written above.
AMERIGAS PROPANE, L.P.
By: AMERIGAS PROPANE, INC.,
as General Partner
By:
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Name: Martha B. Lindsay
Title: Vice President Finance and Chief
Financial Officer
WACHOVIA BANK NATIONAL
ASSOCIATION, as Collateral Agent
By:
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Name: Lawrence P. Sullivan
Title: Director
MELLON BANK, N.A.,
as Cash Collateral Sub-Agent
By:
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Name:
Title: