Exhibit 10.29
CONFORMED COPY
CONSENT NUMBER 1 AND FIRST AMENDMENT
CONSENT NUMBER 1 AND FIRST AMENDMENT, dated as of January 7, 1997
(this "Consent"), to the Fourth Amended and Restated Credit Agreement, dated as
of September 27, 1996 (as amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"), among Petroleum Heat and Power Co., Inc. (the
"Company"), the several banks and financial institutions from time to time
parties thereto (collectively, the "Banks") and The Chase Manhattan Bank
(formerly known as Chemical Bank), as agent for such Banks (in such capacity,
the "Agent").
W I T N E S S E T H :
WHEREAS, the Company, the Banks and the Agent are parties to the
Credit Agreement;
WHEREAS, the Company has requested that the Agent and the Banks
consent to the refinancing (or extension of maturity) of certain of its
Indebtedness, as more fully described herein;
WHEREAS, the Agent and the Banks are willing to consent to such
refinancings (or extensions, as the case may be), but only upon the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained and for other good and valuable consideration the
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in
the Credit Agreement are used herein as therein defined.
2. Consent to Refinancing or Extension of Maturity of Certain
Indebtedness. The Agent and the Banks hereby:
(a) consent that the Company may refinance (whether by repurchase, redemption,
defeasance, exchange, amendment or otherwise) or extend the final maturity
of the Specified Indebtedness (collectively, the "Refinancing"); and
(b) waive compliance with the provisions of subsections 10.1, 10.6 and 10.8 of
the Credit Agreement to the extent necessary and only to the extent
necessary to permit the Refinancing;
provided, that (i) the aggregate principal amount of the Indebtedness resulting
from the Refinancing does not exceed the aggregate principal amount of the
Indebtedness so refinanced and (ii) the terms of the Indebtedness resulting from
such refinancing are approved by the Required Banks.
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3. Amendment of Subsection 1.1. Subsection 1.1 of the Credit
Agreement hereby is amended by inserting therein, in proper alphabetical order,
the following new defined term:
"Specified Indebtedness" shall be the collective reference to (i)
the 11.85%, 12.17% and 12.18% Senior Notes, due October 1, 1998, of the
Company, (ii) the 11.85%, 12.17% and 12.18% Subordinated Notes, due
October 1, 1998, of the Company, (iii) the 14.10% Senior Note, due January
15, 2001, of the Company, (iv) the 14.10% Subordinated Note, due January
15, 2001, of the Company and (v) the Redeemable Preferred stock, due
August 1, 1999, of the Company.
4. Amendment of Subsection 10.1. Subsection 10.1 of the Credit
Agreement hereby is amended by:
(a) deleting the word "and" which appears at the end of clause (i) thereof;
and
(b) inserting immediately before the period at the end thereof the following
new clause (k):
; and (k) additional Indebtedness for general corporate purposes in
an aggregate principal amount not to exceed the amount equal to (i)
$125,000,000 minus (ii) the sum of (A) the aggregate outstanding
principal amount of all Specified Indebtedness and (B) the aggregate
outstanding principal amount of all Indebtedness resulting from the
refinancing of Specified Indebtedness pursuant to Consent Number 1
and First Amendment, dated as of January 7, 1997, to this Agreement;
provided, that the terms of such additional Indebtedness are
approved by the Required Banks.
5. Representations and Warranties. The Company hereby confirms,
reaffirms and restates the representations and warranties set forth in Section 8
of the Credit Agreement; provided that each reference to the Credit Agreement
therein shall be deemed to be a reference to the Credit Agreement after giving
effect to this Consent. The Company represents and warrants that no Default or
Event of Default has occurred and is continuing.
6. Effectiveness. This Consent shall become effective upon receipt
by the Agent of counterparts hereof, duly executed and delivered by the Company
and each of the Banks.
7. Continuing Effect of Credit Agreement. This Consent shall not
constitute a waiver or amendment of any other provision of the Credit Agreement
not expressly referred to herein and shall not be construed as a waiver or
consent to any further or future action on the part of the Company that would
require a waiver or consent of the Banks or the Agent. Except as expressly
amended hereby, the provisions of the Credit Agreement are and shall remain in
full force and effect.
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8. Counterparts. This Consent may be executed by the parties hereto
in any number of counterparts, and all of such counterparts taken together shall
be deemed to constitute one and the same instrument.
9. GOVERNING LAW. THIS CONSENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Consent to
be duly executed and delivered in New York, New York by their proper and duly
authorized officers as of the date first above written.
PETROLEUM HEAT AND POWER
CO., INC.
By: /s/ George Leibowitz
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Title: Senior Vice President
THE CHASE MANHATTAN BANK
(formerly known as Chemical Bank),
as Agent and as a Bank
By: /s/ John T. Mast
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Title: Vice President
THE FIRST NATIONAL BANK OF
BOSTON
By: /s/ Mike Hannon
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Title: Director
NATIONSBANK, N.A.
By: /s/ Eileen C. Higgins
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Title: Vice President
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FIRST UNION BANK OF
CONNECTICUT (formerly known as
First Fidelity Bank)
By: /s/ Reyno Giallongo
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Title: Senior Vice President
ACKNOWLEDGEMENT AND CONSENT
Each of the undersigned hereby (a) acknowledges and consents to the
terms of Consent Number 1 and First Amendment to which this Acknowledgement and
Consent is attached and (b) agrees that all Security Documents to which it is a
party are, and shall remain, in full force and effect, both before and after
giving effect to such Consent Number 1 and First Amendment.
MAXWHALE CORP.
ORTEP OF CONNECTICUT, INC.
PETRO, INC.
PETRO/CRYSTAL CORP.
ORTEP OF STATEN ISLAND, INC.
CBW REALTY CORP. OF CONNECTICUT
OCENNET FUEL OIL CORP.
ORTEP OF NEW JERSEY, INC.
PUBLIC FUEL SERVICE CO., INC.
ORTEP OF PENNSYLVANIA, INC.
MAREX CORPORATION
A.P. WOODSON COMPANY, INC.
By: /s/ George Leibowitz
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Title: Senior Vice President