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SECOND AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment"), dated as of March 25, 1999, is entered into by and among AMERIGAS
PROPANE, L.P., a Delaware limited partnership (the "Company"), AMERIGAS PROPANE,
INC., a Pennsylvania corporation (the "General Partner"), PETROLANE
INCORPORATED, a Pennsylvania corporation ("Petrolane"; the Company, the General
Partner and Petrolane are, collectively, the "Borrowers"), each of the financial
institutions that is a signatory to this Amendment (collectively, the "Banks"),
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as agent for the Banks
(in such capacity, the "Agent"), and amends that certain Amended and Restated
Credit Agreement (as the same is in effect immediately prior to the
effectiveness of this Amendment, the "Existing Credit Agreement" and as the same
may be amended, supplemented or modified and in effect from time to time, the
"Credit Agreement"), dated as of September 15, 1997, by and among the Company,
the General Partner, Petrolane, the Agent, First Union National Bank, as
Syndication Agent and the Banks from time to time party to the Credit Agreement,
as amended by that certain First Amendment to Amended and Restated Credit
Agreement, dated as of September 15, 1998 (the "First Amendment"). Capitalized
terms used and not otherwise defined in this Amendment shall have the same
meanings in this Amendment as set forth in the Credit Agreement, and the rules
of interpretation set forth in Section 1.2 of the Credit Agreement shall be
applicable to this Amendment.
RECITALS
1. The 1998 Mortgage Notes referred to in the First Amendment and the
Existing Credit Agreement were never issued by the Company. In lieu of the 1998
Mortgage Notes, the Company now proposes to issue the Series D First Mortgage
Notes referred to below. The Company has requested that the Banks replace the
term "1998 Mortgage Notes" in every place in which it appears in the Existing
Credit Agreement with the term "Series D First Mortgage Notes" as defined below.
2. In connection with the issuance of the Series D First Mortgage Notes
referred to below, the Company has also requested that the Banks take certain
actions relating to such Series D First Mortgage Notes becoming Parity Debt, as
more particularly described below.
3. The Agent and the Banks are willing to agree to so amend the
Existing Credit Agreement and to make certain other agreements, in each case 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:
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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 definition is hereby added to Section 1.1 of
the Credit Agreement in its appropriate alphabetical order:
"Series D First Mortgage Notes" means the First Mortgage
Notes, Series D, in aggregate principal amount not exceeding $70,000,000, issued
pursuant to that certain Note Agreement, to be dated as of March, 1999, among
the Company, the General Partner and the purchasers named in Schedule I thereto
(but not any extension, refunding or refinancing thereof)."
(b) The Existing Credit Agreement is hereby amended by
deleting the term "1998 Mortgage Notes" in every place in which it appears in
the Existing Credit Agreement and substituting in lieu thereof the term "Series
D First Mortgage Notes" and by deleting the definition of "1998 Mortgage Notes"
from Section 1.1 of the Existing Credit Agreement.
(c) The definition of "Loan Documents" contained in Section
1.1 of the Existing Credit Agreement is hereby amended by adding the words "the
Second Amendment to Amended and Restated Credit Agreement, dated as of March 25,
1999, among the Borrowers, the Banks and the Agent," after the words "the First
Amendment to Amended and Restated Credit Agreement, dated as of September 15,
1998, among the Borrowers, the Banks and the Agent,".
SECTION 2. Conditions to Effectiveness of Section 1 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) On or before the Amendment Effective Date, the Agent shall
have received, on behalf of the Banks, this Amendment, duly executed and
delivered by the Company, the General Partner, Petrolane, each Restricted
Subsidiary, the Required Banks and the Agent.
(b) The Agent shall have received a certificate from a
Responsible Officer of the Company certifying that (1) all governmental actions
or filings necessary for the execution, delivery and performance of this
Amendment shall have been made, taken or obtained, and no order, statutory rule,
regulation, executive order, decree, judgment or injunction shall have been
enacted, entered, issued, promulgated or enforced by any court or other
governmental entity which prohibits or restricts the transactions contemplated
by this Amendment nor shall any action have been commenced or threatened seeking
any injunction or any restraining or other order to prohibit, restrain,
invalidate or set aside the transactions contemplated by this Amendment and (2)
each of the representations and warranties set forth in this Amendment is true
and correct as of the Amendment Effective Date.
SECTION 3. The Borrowers' Representations and Warranties. In order to
induce the Banks to enter into this Amendment and to amend the Existing Credit
Agreement in the
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manner provided in this Amendment, the Company, the General Partner and
Petrolane represent and warrant to each Bank as of the Amendment Effective Date
as follows:
(a) Power and Authority. The Company has all requisite
partnership power and authority to enter into this Amendment and to carry out
the transactions contemplated by, and perform its obligations under, the
Existing Credit Agreement as amended by this Amendment (hereafter referred to as
the "Amended Credit Agreement"). The General Partner has all requisite corporate
power and authority to enter into this Amendment in its individual capacity and
in its capacity as the sole general partner of the Company and to carry out the
transactions contemplated by, and perform its obligations under, the Amended
Credit Agreement. Petrolane has all requisite corporate power and authority to
enter into this Amendment and to carry out the transactions contemplated by, and
perform its obligations under, the Amended Credit Agreement. Each Restricted
Subsidiary has all requisite corporate power and authority to enter into this
Amendment and to carry out the transactions contemplated by, and perform its
obligations under, the Security Documents.
(b) Authorization of Agreements. The execution and delivery of
this Amendment by the Company, the General Partner, Petrolane and each
Restricted Subsidiary and the performance of the Amended Credit Agreement by the
Company, the General Partner and Petrolane have been duly authorized by all
necessary action, and this Amendment has been duly executed and delivered by the
Company, the General Partner, Petrolane and each Restricted Subsidiary.
(c) Enforceability. The Amended Credit Agreement constitutes
the legal, valid and binding obligation of the Company, the General Partner and
Petrolane enforceable against the Company, the General Partner and Petrolane 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
each of the Company, the General Partner, Petrolane and the Restricted
Subsidiaries of this Amendment, and the performance by each of the Company, the
General Partner, Petrolane and the Restricted Subsidiaries of the Amended Credit
Agreement do not and will not (i) violate (x) any provision of the Partnership
Agreement or the certificate or articles of incorporation or other Organization
Documents of the Company, the General Partner, Petrolane 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, Petrolane 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 Borrowers to
create) any Lien not permitted by Section 8.3.
(e) Governmental Consents. Except for Routine Permits, (i) no
consent, approval or authorization of, or declaration or filing with, any
Governmental Authority is
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required for the valid execution, delivery and performance of this Amendment by
the Company, the General Partner, Petrolane and the Restricted Subsidiaries.
(f) Representations and Warranties in the Credit Agreement.
The Company, the General Partner and Petrolane confirm that, as of the Amendment
Effective Date, (i) the representations and warranties contained in Article VI
of the Credit 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 and (ii) that no Default or Event of Default has
occurred and is continuing.
(g) Liens. As of the Amendment Effective Date, there are no
Liens on the General Collateral other than Liens permitted under Section 8.3 of
the Credit Agreement.
(h) Subsidiaries. As of the Amendment Effective Date, the
Company has no Restricted Subsidiaries other than AmeriGas Propane Parts &
Service, Inc.
SECTION 4. Affirmative Covenants. (a) The Company hereby agrees to
obtain and deliver to the Agent, as promptly as practicable, but in any event
within 30 days after the date of issuance of the Series D First Mortgage Notes,
(i) title endorsements or their equivalents, in form and substance reasonably
satisfactory to the Collateral Agent, with respect to the title insurance
policies listed on Schedule I hereto and (ii) an opinion of Morgan, Lewis &
Bockius LLP, special counsel for the Obligors, in form and substance reasonably
satisfactory to the Collateral Agent relating to the obligation, if any, to pay
Florida non-recurring intangible personal property taxes in connection with the
issuance of the Series D First Mortgage Notes.
(b) Resolutions. Concurrently with the issuance by the Company
of the Series D First Mortgage Notes, the Company will deliver to the Agent
copies of partnership authorizations for the Company and resolutions of the
board of directors of each of the General Partner, Petrolane and the Restricted
Subsidiaries authorizing and ratifying the transactions contemplated hereby,
certified by the Secretary or an Assistant Secretary of such Person.
SECTION 5. Further Agreements. The parties hereby acknowledge and agree
that in the event of any future issuance of Parity Debt, the Company shall
deliver to the Agent, as promptly as practicable, but in any event within 10
Business Days after the date of issuance of such Parity Debt, title endorsements
or their equivalents, in form and substance reasonably satisfactory to the
Collateral Agent, with respect to the title insurance policies issued in
connection with the Mortgages listed on Schedule I hereto and any title
insurance policies obtained by the Company pursuant to Section 7.10 of the
Credit Agreement.
SECTION 6. Direction Notices.
(a) Each of the Banks which executes this Amendment, by its
execution of this Amendment, confirms that it has received and reviewed each of
the documents identified on
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Schedule II hereto, which documents have been distributed by the Borrowers to
satisfy the requirements set forth in Section 6(a)(ii) of the Collateral Agency
Agreement.
(b) Each of the Banks which executes this Amendment, by its
execution of this Amendment, hereby (1) agrees that, upon the satisfaction of
the conditions set forth below, the conditions to the Borrowers' designation of
the Series D First Mortgage Notes as Parity Debt set forth in Section 6(a) of
the Collateral Agency Agreement (assuming the accuracy of the representations
and warranties made by the Borrowers therein) will have been satisfied and (2)
thereupon authorizes and directs the Collateral Agent to confirm in writing to
the New Parity Lenders or the New Parity Agent, if any (as such terms are
defined in the Supplement), that the conditions set forth in Section 6(a) have
been satisfied with respect to that certain Note Agreement, to be dated as of
March, 1999, among the Company, the General Partner and the purchasers named in
Schedule I thereto, relating to the Series D First Mortgage Notes (the "Series D
Note Agreement"):
(i) The Collateral Agent shall have received a
supplement (the "Supplement") to the Collateral Agency Agreement in the form of
Exhibit A to the Collateral Agency Agreement, executed and delivered by the
Obligors, the New Parity Lenders and the New Parity Agent, if any (as each such
term is defined in the Supplement), with no modifications thereto other than
minor, nonmaterial changes necessary to identify the Series D First Mortgage
Notes transaction.
(ii) The Collateral Agent shall have received an
Officer's Certificate (as defined in the Collateral Agency Agreement, an
"Officer's Certificate") of the Borrowers to the effect that (A) Sections 9.3(b)
and 10.7(c) of the Series D Note Agreement are substantially identical to
(including without limitation with respect to amounts to be prepaid), and not in
conflict or inconsistent with (1) Section 9.3(b) of the Note Agreements and
Section 2.7(c) of the Credit Agreement with respect to Excess Taking Proceeds
(as defined in the Collateral Agency Agreement) or (2) Section 10.7(c) of the
Note Agreements and Section 8.8(c) of the Credit Agreement with respect to
Excess Sale Proceeds (as defined in the Collateral Agency Agreement) and (B) the
incurrence of the Series D First Mortgage Notes complies with the terms of
Section 10.1(a), 10.1(b), 10.1(e) or 10.1(f) of the Note Agreements and Section
8.1(a), 8.1(b), 8.1(e) or 8.1(f) of the Credit Agreement.
(iii) The Collateral Agent shall have received an
Officer's Certificate of the Borrowers to the effect that all state and local
stamp, recording, filing, intangible and similar taxes or fees which are payable
in connection with the inclusion of the Series D First Mortgage Notes as
Obligations (as defined in the Collateral Agency Agreement) shall have been
paid.
(iv) The Collateral Agent shall have received an
Officer's Certificate of the Borrowers to the effect that no General Event of
Default shall have occurred and be continuing as of the date of the Supplement.
(c) Each of the Banks which executes this Amendment, by its
execution hereof, hereby (i) acknowledges that certain of the Mortgages contain
limitations on the maximum principal amounts of the Obligations which are
secured by such Mortgages, which
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limitations were established based upon the appraised value of each property
covered by the Mortgages and (ii) in connection with the issuance of the Series
D First Mortgage Notes and in connection with any future issuance of Parity
Debt, authorizes and directs the Collateral Agent to negotiate and execute (A)
at the request of the Borrowers, amendments to each of the Florida Mortgages and
to such of the other Mortgages as deemed necessary or advisable by the
Collateral Agent to establish such separate limitations with respect to the
Series D First Mortgage Notes (or future issuances of Parity Debt, as the case
may be) in an amount that increases the aggregate amount of the limitations on
the maximum principal amounts secured by such Mortgage to 105% of the amount of
the then current limitation(s) in such Mortgage, and (B) any other Mortgages or
amendments to Mortgages deemed necessary by the Collateral Agent to obtain title
insurance endorsements on the properties covered by the Mortgages.
SECTION 7. Miscellaneous.
(a) Reference to and Effect on the Existing Credit Agreement
and the Other Loan Documents.
(i) Except as specifically amended by this Amendment
and the documents executed and delivered in connection herewith, the
Existing Credit Agreement and the other Loan Documents shall remain in
full force and effect and are hereby ratified and confirmed. This
Amendment shall be a "Loan Document" under the Credit Agreement.
(ii) The execution and delivery of this Amendment and
performance of the Amended Credit 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 Banks under,
the Existing Credit Agreement or any other Loan Document.
(iii) Upon the conditions precedent set forth herein
being satisfied, this Amendment shall be construed as one with the
Existing Credit Agreement, and the Existing Credit Agreement shall,
where the context requires, be read and construed throughout so as to
incorporate this Amendment.
(b) Fees and Expenses. The Company, the General Partner and
Petrolane acknowledge that all reasonable costs, fees and expenses incurred in
connection with this Amendment will be paid in accordance with Section 11.4 of
the Existing Credit Agreement.
(c) 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.
(d) 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.
(e) Governing Law. This Amendment shall be governed by and
construed according to the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the date first above written.
AMERIGAS PROPANE, L.P., a Delaware limited
partnership
By: AMERIGAS PROPANE, INC.
Its: General Partner
By: /s/ Martha B. Lindsay
------------------------------------
Name: Martha B. Lindsay
Title: Vice President - Finance and
Chief Financial Officer
AMERIGAS PROPANE, INC.
By: /s/ Martha B. Lindsay
------------------------------------
Name: Martha B. Lindsay
Title: Vice President - Finance and
Chief Financial Officer
PETROLANE INCORPORATED
By: /s/ Martha B. Lindsay
------------------------------------
Name: Martha B. Lindsay
Title: Vice President - Finance and
Chief Financial Officer
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AGENT
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By: /s/ David Price
--------------------------------
Name: David Price
Title: Vice President
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BANKS
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank and an
Issuing Bank
By: /s/ Daryl G. Patterson
--------------------------------
Name: Daryl G. Patterson
Title: Vice President
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FIRST UNION NATIONAL BANK, as a Bank and
as Syndication Agent
By: /s/ Joseph K. Dancy
--------------------------------
Name: Joseph K. Dancy
Title: Vice President
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THE BANK OF NEW YORK
By:
------------------------------------
Name:
Title:
12
MELLON BANK, N.A.
By:
------------------------------------
Name:
Title:
13
THE FIRST NATIONAL BANK OF MARYLAND
By: /s/ Michael P. Grothe
--------------------------------
Name: Michael P. Grothe
Title: Corporate Banking Executive
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FLEET NATIONAL BANK
By: /s/ Barbara Agostini Keegan
--------------------------------
Name: Barbara Agostini Keegan
Title: Vice President
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PNC BANK, NATIONAL ASSOCIATION
By: /s/ Eric G. Erickson
--------------------------------
Name: Eric G. Erickson
Title: Vice President
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UNION BANK OF CALIFORNIA, N.A.
By: /s/ Dustin Gaspari
--------------------------------
Name: Dustin Gaspari
Title: Assistant Vice President
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The undersigned hereby acknowledges and consents to the foregoing Second
Amendment to Amended and Restated Credit Agreement, reaffirms the terms of its
Restricted Subsidiary Guarantee in favor of Bank of America National Trust and
Savings Association, as Collateral Agent and acknowledges that such Restricted
Subsidiary Guarantee remains in full force and effect in accordance with its
terms.
Dated: March 25, 1999 AMERIGAS PROPANE PARTS & SERVICE,
INC., as Guarantor
By: /s/ Martha B. Lindsay
----------------------------------
Name: Martha B. Lindsay
Title: Vice President - Finance and
Chief Financial Officer
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SCHEDULE I
AMENDED TITLE POLICY
ADDRESS MORTGAGE ENDORSEMENT
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Osyart Road, Bumstead, Recorded 3/27/98 Policy #137-00-003-314
Maricopa County, AZ* Instrument #98-0241615 Dated 3/27/98
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2110 N. Gaffey Street, San Pedro, Policy #137-00-005-303
Los Angeles County, CA* N/A Dated 9/15/97
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2675 N. Temple Avenue, Signal Hill, Policy #135-00-538-760
Los Angeles County, CA N/A Dated 9/15/97
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16800 South Main Street, Carson, Policy #135-00-538-761
Los Angeles County, CA N/A Dated 9/15/97
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9608 Cherry Avenue, Fontana, Policy #82-03-134-439
San Bernardino County, CA N/A Dated 9/15/97
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295 E. Virginia Street, San Jose, Policy #135-00-525-911
Santa Clara County, CA N/A Dated 9/15/97
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232 Mt. Hermon Road, Scotts Valley, Policy #112-00-398-650
Santa Cruz County, CA N/A Dated 9/15/97
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52 Lower Bartlett Road, Waterford, Recorded 9/29/97 Policy #112-00-689253
New London County, CT Vol. 0473 Page 0132 Dated 9/29/97
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10052 N.W. 89th Avenue, Medley, Recorded 10/2/97 Policy #82-02-875613
Dade County, FL 17814 Page 0674 Dated 5/11/98
Instrument #97R448821
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1830 East 3rd Street, Panama City, Recorded 10/23/97 Policy #82-01-853324
Bay County, FL* Book 1744 Page 1774
File #97049929
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2715 Woodwin Road, Doraville, Recorded 9/29/97 Policy #112-00-273266
DeKalb County, GA Book 9634 Page 143 Dated 11/25/97
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Lot 2999, Honolulu, N/A Policy #T107-42270
Honolulu County, HI Dated 9/15/97
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Lot 53 of "THE MILLYARD N/A File No. 220408
SUBDIVISION", Halieu (Maui), Dated 9/15/97
Maui County, HI
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2400 Terminal Drive, Arlington Hts., N/A Policy #112-00-737437
Cook County, IL Dated 6/21/95
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3801 South Cicero Avenue, Cicero, N/A Policy #112-00-737438
Cook County, IL Dated 6/21/95
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2801 East 175th Street, Lansing, N/A Policy #112-00-737439
Cook County, IL Dated 6/21/95
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522 South Vermont Street, Palatine, N/A Policy #112-00-737440
Cook County, IL Dated 6/21/95
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6300 Cliffdale Road, Fayetteville, N/A Policy 112-00-838604
Cumberland County, NC Dated 9/25/97
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*Leasehold mortgage
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SCHEDULE I
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Route 206, Bordentown, Recorded 10/1/97 Policy #112-02-239349
Burlington County, NJ MB6976 Page 273 Dated 10/1/97
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Route 24, Chester, Recorded 10/1/97 Policy #112-02-239350
Morris County, NJ MB7212 Page 47 Dated 5/5/98
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*Leasehold mortgage
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SCHEDULE II
DOCUMENTS RELATING TO THE SERIES D FIRST MORTGAGE NOTES
1. A copy of the proposed Note Agreement in respect of the Series D First
Mortgages Notes.
2. Evidence that the incurrence of the indebtedness evidenced by the
Series D First Mortgage Notes complies with Section 8.1(f) of the
Credit Agreement as of the issuance date of such Series D First
Mortgage Notes.
3. A copy of the offering memorandum with respect to the Series D First
Mortgage Notes.
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