EXHIBIT 10.27
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FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT (this "Amendment") dated as of November 4, 2003 is
entered into by and among SUBURBAN PROPANE, L.P., a Delaware limited partnership
(the "Borrower"), certain of the Lenders who are party to the Credit Agreement
referred to below and WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative
Agent (the "Administrative Agent").
Statement of Purpose
Pursuant to the Second Amended and Restated Credit Agreement dated as of
May 8, 2003 (as amended, restated, supplemented or otherwise modified, the
"Credit Agreement") by and among the Borrower, the lenders party thereto, the
Administrative Agent, and Fleet National Bank, as Syndication Agent, the Lenders
have agreed to make, and have made, certain extensions of credit to the
Borrower.
The Borrower has requested that the Required Lenders (a) consent to the
purchase by the Borrower of substantially all of the assets of the Sellers and
certain other transactions, each as more specifically described on Annex I
attached hereto and incorporated herein by reference (such transactions,
collectively, the "Transactions") and (b) amend Section 11.1 of the Credit
Agreement as provided herein. In addition, following the consummation of the
Acquisition, the Borrower will make Restricted Payments to the Parent at such
times and in such amounts as are necessary for the Parent to make payments of
principal, interest and fees due on the Indebtedness incurred by the Parent in
connection with the Acquisition and any renewals or refinancings of such
Indebtedness (collectively, the "MLP Debt Service"). Subject to the terms and
conditions set forth herein, the Required Lenders are willing to consent to the
Transactions, the payment of the MLP Debt Service and the amendment to Section
11.1 of the Credit Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such parties
hereby agree as follows:
Section 1. Definitions. All capitalized terms used and not defined herein
or Annex I shall have the meanings given thereto in the Credit Agreement.
Section 2. Consents and Amendment.
(a) Consent to the Transactions. Pursuant to Section 13.11 of the Credit
Agreement and effective as of the date upon which the conditions specified in
Section 4 hereof are satisfied, the Required Lenders hereby consent to the
Transactions, notwithstanding the terms of the Credit Agreement to the contrary.
(b) Consent to the MLP Debt Service Payments. Pursuant to Section 13.11 of
the Credit Agreement and effective as of the date upon which the conditions
specified in Section 4 hereof are satisfied, the Required Lenders hereby consent
to the Borrower making Restricted Payments to the Parent for the MLP Debt
Service, notwithstanding the terms of Sections 10.6(a) or 10.7 of the Credit
Agreement to the contrary; provided that all Restricted Payments, including,
without
limitation, such MLP Debt Service, shall remain subject to the limitations and
requirements set forth in the proviso of Section 10.6 of the Credit Agreement.
(c) Amendment to Credit Agreement. Section 11.1 of the Credit Agreement
(Events of Default) is hereby amended by amending and restating clause (f) of
such Section as set forth below:
"(f) Indebtedness Cross-Default. The Parent, the Borrower or any of
their Subsidiaries shall (i) default in the payment of any Indebtedness
(other than that evidenced by the Notes or any Reimbursement Obligation;
but including, without limitation, the Indebtedness evidenced by the Senior
Notes or any Refinancing Notes), the aggregate outstanding amount of which
Indebtedness is in excess of $10,000,000, beyond the period of grace if
any, provided in the instrument or agreement under which such Indebtedness
was created, or (ii) default in the observance or performance of any other
agreement or condition relating to any Indebtedness (other than that
evidenced by the Notes or any Reimbursement Obligation; but including,
without limitation, the Indebtedness evidenced by the Senior Notes or any
Refinancing Notes) the aggregate outstanding amount of which Indebtedness
is in excess of $10,000,000, or contained in any instrument or agreement
evidencing, securing or relating thereto or any other event shall occur or
condition exist, the effect of which default or other event or condition is
to cause, or to permit the holder or holders of such Indebtedness (or a
trustee or agent on behalf of such holder or holders) to cause, with the
giving of notice if required, any such Indebtedness to become due prior to
its stated maturity (any applicable grace period having expired)."
Section 3. Covenant of the Borrower. Notwithstanding the terms of Section
8.7 of the Credit Agreement to the contrary, the parties hereto agree that the
Borrower shall have thirty (30) days following the consummation of the
Transactions to comply with the terms of such Section 8.7 with respect to any
new Subsidiary created in connection with the Transactions.
Section 4. Conditions of Effectiveness. This Amendment shall become
effective upon the delivery to the Administrative Agent of (a) this Amendment
executed by the Required Lenders and the Borrower and (b) a certificate of a
Responsible Officer demonstrating compliance, on a pro forma basis after giving
effect to the Transactions, with the covenants contained in Article IX of the
Credit Agreement recomputed as of the last day of the most recently ended fiscal
quarter of the Borrower and its Subsidiaries as if the Transactions had occurred
on the first day of such period, together with the calculations demonstrating
such compliance.
Section 5. Limited Effect. Except as expressly provided herein, the Credit
Agreement and the Loan Documents shall remain unmodified and in full force and
effect. This Amendment shall not be deemed (a) to be a waiver of, or consent to,
a modification or amendment of, any other term or condition of the Credit
Agreement or any other Loan Document or (b) to prejudice any other right or
rights which the Administrative Agent or the Lenders may now have or may have in
the future under or in connection with the Credit Agreement or the other Loan
Documents or any of the instruments or agreements referred to therein, as the
same may be amended or modified from time to time. References in the Credit
Agreement (including references to such Credit Agreement
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as amended hereby) to "this Agreement" (and indirect references such as
"hereunder", "hereby", "herein", and "hereof") and in any Loan Document to the
Credit Agreement shall be deemed to be references to the Credit Agreement as
amended hereby.
Section 6. Representations and Warranties/No Default. By its execution
hereof, the Borrower hereby certifies (a) that, prior to and immediately after
giving effect to the Transactions, each of the representations and warranties
set forth in the Credit Agreement and the other Loan Documents is true and
correct as of the date hereof as if fully set forth herein (other than
representations and warranties which speak as of a specific date, which
representations and warranties shall have been true and correct as of such
specific dates), (b) that the execution, delivery and performance of this
Amendment have been authorized by all requisite action on the part of the
Borrower and (c) that as of the date hereof and after given effect to this
Amendment, no Default or Event of Default has occurred and is continuing or
would result due to the consummation of the Transactions.
Section 7. Expenses. The Borrowers shall pay all reasonable out-of-pocket
expenses of the Administrative Agent in connection with the preparation,
execution and delivery of this Amendment, including without limitation, the
reasonable fees and disbursements of counsel for the Administrative Agent.
Section 8. Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of New York.
Section 9. Counterparts. This Amendment may be executed in separate
counterparts, each of which when executed and delivered is an original but all
of which taken together constitute one and the same instrument.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
SUBURBAN PROPANE, L.P., as Borrower,
on behalf of itself and the Guarantors
By: /s/ Michael J. Dunn, Jr.
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Name: Michael J. Dunn, Jr.
Title: Senior Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent and as Lender
By: /s/ Mark D. Weir
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Name: Mark D. Weir
Title: Vice President
FLEET NATIONAL BANK,
as Syndication Agent and as Lender
By: /s/ H. Louis Bailey
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Name: H. Louis Bailey
Title: Managing Director
THE BANK OF NEW YORK, as Lender
By: /s/ Ernest Fung
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Name: Ernest Fung
Title: Vice President
NATIONAL CITY BANK, as Lender
By: /s/ Heather M. McIntyre
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Name: Heather M. McIntyre
Title: Assistant Vice President
FIRSTRUST BANK, as Lender
By: /s/ Kent Nelson
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Name: Kent Nelson
Title: Senior Vice President
Annex I to First Amendment
Description of the Transactions
The Borrower proposes to purchase (the "Acquisition") substantially all of the
assets (the "Purchased Assets") and to assume certain liabilities of Agway
Energy Products, LLC, Agway Energy Services, Inc. and Agway Energy Services PA,
Inc. (collectively, the "Sellers"). The purchase price for the Purchased Assets
is approximately $210 million (subject to adjustment pursuant to the terms of
the Asset Purchase Agreement between the Borrower and the Sellers), a portion of
which will be held in escrow to fund environmental, tax and general indemnity
obligations of the Sellers. The purchase price and the fees and expenses related
to the Acquisition will be funded through an equity contribution to the Borrower
by Suburban Propane Partners, L.P. (the "Parent"), from the proceeds of (a) a
bridge facility and/or (b) the combination of an equity issuance by the Parent
and a high yield offering by the Parent, which such bridge facility, high yield
offering or other Indebtedness incurred by the Parent in connection with the
Acquisition (i) shall not exceed the purchase price for the Purchased Assets
plus the fees and expenses related to the Acquisition, (ii) shall be unsecured
and (iii) shall not be guaranteed by the Borrower or any of its Subsidiaries.
Following consummation of the Acquisition, the Borrower may contribute the
Purchased Assets to existing or newly-created Subsidiaries of the Borrower.