1
EXHIBIT 4.6
SECOND AMENDMENT dated as of September 15, 1998 (the "Second
Amendment") to the NOTE AGREEMENT dated as of April 12, 1995, as amended by the
First Amendment dated as of September 12, 1997 (as amended, the "Agreement") by
and among AMERIGAS PROPANE, L.P., a Delaware limited partnership (the
"Company"), AMERIGAS PROPANE, INC., a Pennsylvania corporation formerly known as
New AmeriGas Propane, Inc. (the "General Partner"), PETROLANE INCORPORATED, a
Pennsylvania corporation and successor by merger to Petrolane Incorporated, a
California corporation ("Petrolane"; the Company, the General Partner and
Petrolane being hereinafter collectively referred to as the "Obligors"), and
each of the noteholders listed in Schedule I to the Agreement as amended hereby
(the "Holders").
WHEREAS, the parties hereto desire to amend the Agreement as set forth
below;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows.
1. Amendments to the Agreement. Effective as of the
Effective Date (as hereinafter defined), the Agreement is hereby amended as
follows:
1.1 Amendments to Section 10.1.
(a) Section 10.1(f) of the Agreement is hereby
amended to read in its entirety as follows:
"(f) the Company 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 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, and
(ii) the ratio of Consolidated Cash Flow to Average
Consolidated Pro Forma Debt Service is equal to or
greater than 1.25 to 1.0."
1.2 Amendments to Section 10.2.
(a) Section 10.2(m) of the Agreement is hereby
amended to read in its entirety as follows:
"(m) Liens (other than the Liens referred to
in clauses (j), (k) or (l) above) securing
Indebtedness represented by the 1998 Notes or other
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 any 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
2
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, Section 10.1(f),
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) 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 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;"
1.3 Amendment to Section 13.
(a) Section 13.1 is hereby amended by adding the
following definition:
"1998 Notes: the Notes issued in an aggregate
principal amount not exceeding $100,000,000 pursuant to the
Note Agreements, each dated as of October __, 1998, among the
Company, the General Partner and the purchasers named in
Schedule I thereto (but not any extension, refunding or
refinancing thereof)."
2. Conditions to Effectiveness of this Second Amendment. This
Second Amendment shall become effective only upon the satisfaction in full (or
waiver by the Required Holders) of the following conditions precedent (the first
date upon which each such condition shall have been so satisfied or waived being
herein referred to as the "Effective Date"):
(a) No Defaults. On the Effective Date (after giving
effect to this Second Amendment), no Default or Event of Default shall have
occurred and be continuing.
(b) Section 8 of the Credit Agreement shall have been
amended to provide for substantially the same covenants set forth in Section 10
of the Agreement after giving effect to this Second Amendment. The covenants and
events of default set forth in the Credit Agreement shall not have been
otherwise amended in any material respect.
(c) Second Amendment. Each of the Obligors and the
Required Holders shall have executed this Second Amendment, and counterparts
hereof bearing the signatures of the Obligors shall have been delivered to the
holders together with a notice from the Company to each holder as to the
satisfaction of this condition.
-2-
3
3. Agreement; Terms. Except as expressly amended hereby, the
Agreement shall continue in full force and effect in accordance with the
provisions thereof on the date hereof, and this Second Amendment shall not be
deemed to waive or amend any provision of the Agreement except as expressly set
forth herein. As used in the Agreement, the terms "this Agreement," "herein,"
"hereinafter," "hereunder," "hereto" and words of similar import shall mean and
refer to, from and after the Effective Date, unless the context otherwise
specifically requires, the Agreement as amended by this Second Amendment.
Capitalized terms used and not defined herein shall have the meanings assigned
to such terms in the Agreement.
4. Headings. Section headings in this Second Amendment are
included herein for convenience of reference only and shall not define, limit or
otherwise affect any of the terms or provisions hereof.
5. Counterparts. This Second Amendment may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument, and all signatures need not appear on
any one counterpart.
6. Expenses. The Company agrees to pay all reasonable
out-of-pocket expenses incurred by the Holders in connection with the
preparation of this Second Amendment, including, but not limited to, the
reasonable fees, charges and disbursements of one outside special counsel for
the Holders as provided for in Section 16.1 of the Agreement.
7. Governing Law. This Second Amendment shall be governed by,
and construed in accordance with, the laws of the State of New York (other than
any conflicts of law rule which might result in the application of the laws of
any other jurisdiction).
8. Ratification and Confirmation of Security Documents. The
Company hereby ratifies and confirms the provisions of the Security Documents
for the benefit from time to time of the holders of the Notes.
-3-
4
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed as of the date first above written.
AMERIGAS PROPANE, L.P.
By: AmeriGas Propane, Inc.,
its general partner
By: Martha B. Lindsay
---------------------------------------
Martha B. Lindsay
Vice President - Finance and Chief
Financial Officer
AMERIGAS PROPANE, INC.
By: Martha B. Lindsay
---------------------------------------
Martha B. Lindsay
Vice President - Finance and Chief
Financial Officer
PETROLANE INCORPORATED
By: Martha B. Lindsay
---------------------------------------
Martha B. Lindsay
Vice President - Finance and Chief
Financial Officer
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
(registered holder of Notes #RA-1, RA-2,
RA-4 and RA-5)
By: Robert G. Gwin
---------------------------------------
Robert G. Gwin
Vice President
PRUCO LIFE INSURANCE COMPANY (registered
holder of Note #RA-3)
By: Randall M. Kob
---------------------------------------
Randall M. Kob
Vice President
METROPOLITAN LIFE INSURANCE COMPANY
(registered holder of Note #RB-1)
By: James A. Wiviott
---------------------------------------
James A. Wiviott
Director
[SIGNATURE PAGE TO SECOND AMENDMENT TO NOTE AGREEMENT]
5
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE
UNITED STATES (registered holder of Note
#RC-1)
By:
---------------------------------------
Name:
Title:
CIG & CO. (registered holder of Notes #RC-2,
RC-3, RC-4, RC-6 and RC-14)
By: James G. Schelling
---------------------------------------
James G. Schelling
Partner
TEACHERS INSURANCE AND ANNUITY ASSOCIATION
OF AMERICA (registered holder of Note
#RC-10)
By:
---------------------------------------
Thomas E. Solano
Director Private Placements
TRAL & CO ((registered holder of Note #RC-11
(beneficially owned by The Travelers
Insurance Company)
By: Frank G. Pattison
---------------------------------------
Frank G. Pattison
Attorney-in-fact
LINCOLN NATIONAL LIFE INSURANCE COMPANY
(registered holder of Note #RC-15)
By: J. Steven Staggs
---------------------------------------
J. Steven Staggs
Vice President
[SIGNATURE PAGE TO SECOND AMENDMENT TO NOTE AGREEMENT]