1
THIRD AMENDMENT dated as of March 23, 1999 (the "Third Amendment") to
the NOTE AGREEMENT dated as of April 12, 1995, as amended by the First Amendment
dated as of September 12, 1997, and as amended by the Second Amendment dated as
of September 15, 1998 (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 Amendment to Section 13.
(a) Section 13.1 is hereby amended by deleting the
definition "1998 Notes" and substituting in lieu thereof the following
definition:
"Series D Notes: the Notes issued in an
aggregate principal amount not exceeding $70,000,000
pursuant to the Note Agreements, each 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)."
1.2 The Agreement is hereby amended by deleting the term "1998
Notes" in every place in which it appears in the Agreement and
substituting in lieu thereof the term "Series D Notes".
2. Conditions to Effectiveness of this Third Amendment. This
Third 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 Third Amendment), no Default or Event of Default shall have
occurred and be continuing.
(b) Third Amendment. Each of the Obligors and the
Required Holders shall have executed this Third 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. Direction Notices.
(a) Each of the Holders which executes this
Amendment, by its execution of this Amendment, confirms that it has received
each of the documents identified on Schedule A hereto, which documents have been
distributed by the Obligors to satisfy the requirement to distribute a copy of
the proposed New Parity Debt Agreements and to deliver evidence that the
incurrence of the Indebtedness evidenced by the Series D Notes complies with
Section 10.1(f) of the Agreement as of the issuance date as set forth in Section
6(a)(ii) of the Intercreditor Agreement.
(b) Each of the Holders 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 Obligors
designation of the Series D Notes as Parity Debt set forth in Section 6(a) of
the Intercreditor Agreement (assuming the accuracy of the representations and
warranties made by the Obligors 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 Notes (the "Series D Note
Agreement"), such Series D Note Agreement to be in the form delivered to the
Holders pursuant to Section 3(a) above, with no material modifications thereof
(provided that the completion of certain currently blank provisions shall not
constitute a material modification):
(i) The Collateral Agent shall have received
a supplement (the "Supplement") to the Intercreditor Agreement in the form of
Exhibit A to the Intercreditor 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 Notes transaction.
(ii) The Collateral Agent shall have
received an Officer's Certificate (as defined in the Intercreditor 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 Agreements 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 Intercreditor 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 Intercreditor Agreement) and (B) the incurrence
of the Series D 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 Obligors 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 Notes as
Obligations (as defined in the Intercreditor Agreement) shall have been paid.
(iv) The Collateral Agent shall have
received an Officer's Certificate of the Obligors to the effect that no General
Event of Default shall have occurred and be continuing as of the date of the
Supplement and as of the Parity Effective Date.
(v) The Company shall have delivered to each
of the Holders an execution copy of an amendment to the Credit Agreement
relating to the issuance of the Series D Note Agreement.
-2-
3
(vi) The Collateral Agent and the Obligors
shall have received counterpart execution copies of a Direction Notice executed
and delivered by the Requisite Percentage, as required under the Intercreditor
Agreement.
(c) Each of the Holders which executes this
Amendment, by its execution hereof, hereby (i) acknowledges that certain of the
Mortgages contain limitations of the maximum principal amounts on the
Obligations which are secured by such Mortgages, which 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 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 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.
4. 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 Third Amendment shall not be
deemed to waive or amend any provision of the Agreement or the Intercreditor
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 Third Amendment. Capitalized terms used and not defined herein shall have
the meanings assigned to such terms in the Agreement or, in the case of Section
3 above, the Intercreditor Agreement.
5. Headings. Section headings in this Third Amendment are
included herein for convenience of reference only and shall not define, limit or
otherwise affect any of the terms or provisions hereof.
6. Counterparts. This Third 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.
7. Expenses. The Company agrees to pay all reasonable
out-of-pocket expenses incurred by the Holders in connection with the
preparation of this Third 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.
8. Governing Law. This Third 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).
9. 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 Third
Amendment to be executed as of the date first above written.
AMERIGAS PROPANE, L.P.
By: AmeriGas Propane, Inc.,
its general partner
By: /s/ Martha B. Lindsay
---------------------------------------------
Martha B. Lindsay
Vice President - Finance and Chief Financial Officer
AMERIGAS PROPANE, INC.
By: /s/ Martha B. Lindsay
---------------------------------------------
Martha B. Lindsay
Vice President - Finance and Chief Financial Officer
PETROLANE INCORPORATED
By: /s/ 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-3, RA-4 and RA-5)
By: /s/ Robert G. Gwin
---------------------------------------------
Robert G. Gwin
Title: Vice President
METROPOLITAN LIFE INSURANCE COMPANY
(registered holder of Note #RB-1)
By: /s/ Michael J. Kroeger
---------------------------------------------
Name: Michael J. Kroeger
Title: Managing Director
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE
UNITED STATES (registered holder of Note #RC-1)
By:
---------------------------------------------
Name:
Title:
[SIGNATURE PAGE TO THIRD AMENDMENT TO NOTE AGREEMENT]
5
CIG & CO. (registered holder of Notes #RC-2, RC-3,
RC-4, RC-6 and RC-14 (beneficially owned by
Connecticut General Life Insurance company);
registered holder of Note #RC-12 (beneficially owned
by Insurance Company of North America); and Note
#RC-13 (beneficially owned by Life Insurance Company
of North America))
By: /s/ James G. Schelling
-----------------------------------------
Name: James G. Schelling
Title: Partner
CIGNA PROPERTY AND CASUALTY INSURANCE
COMPANY (registered holder of Note #RC-7)
By: /s/ James G. Schelling
-----------------------------------------
Name: James G. Schelling
Title: Managing Director
TEACHERS INSURANCE AND ANNUITY ASSOCIATION
OF AMERICA (registered holder of Note #RC-10)
By: /s/ Glenn S. Brausa
-----------------------------------------
Name: Glenn S. Brausa
Title: Managing Director
High Yield and Convertible Bond Group
TRAL & CO ((registered holder of Note #RC-11
(beneficially owned by Travelers Insurance
Company)
By:
-----------------------------------------
Name:
Title:
LINCOLN NATIONAL LIFE INSURANCE COMPANY
(registered holder of Note #RC-15)
By: /s/ J. Steven Staggs
--------------------------------------
Name: J. Steven Staggs
Title: Vice President
[SIGNATURE PAGE TO THIRD AMENDMENT TO NOTE AGREEMENT]
6
Schedule A
1. A copy of the proposed Note Agreement in respect of the Series D Notes;
2. Evidence that the incurrence of the Indebtedness evidenced by the
Series D Notes complies with Section 10.1(f) of the Agreement as of the
issuance date; and
3. A copy of the Summary of Terms of the Series D Notes as set forth in
the Offering Memorandum in respect thereof.