EXHIBIT 10.(i)
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NOTE CALL AGREEMENT
NOTE CALL AGREEMENT, dated as of May 26, 1999, between
Suburban Propane, L.P., a limited partnership organized under the laws of the
State of Delaware (the "Purchaser"), and Mellon Bank, N. A., a national banking
association (the "Lender").
RECITALS:
A. Suburban Energy Services Group LLC, a limited liability
company organized under the laws of the State of Delaware (the "Borrower"), has
entered into the Term Loan Agreement, dated as of May 26, 1999 (as amended from
time to time, the "Loan Agreement"), with the Lender. The Purchaser will derive
substantial direct and indirect benefit from the transactions contemplated by
the Loan Agreement.
B. It is a condition precedent to the extension of credit
under the Loan Agreement that the Purchaser execute and deliver the Note
Purchase Agreement (the "Note Purchase Agreement") obliging the Purchaser to
purchase from the Lender the Promissory Note of the Borrower, dated May 26,
1999, issued under the Loan Agreement (together with any replacement therefor
under the Loan Agreement, the "Note"), upon the terms and subject to the
conditions set forth therein. This Agreement is being entered into by the
parties, among other things, to induce the Purchaser to enter into the Note
Purchase Agreement.
NOW, THEREFORE, in consideration of the premises, and
intending to be legally bound, the Purchaser hereby agrees as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS.
(a) CERTAIN DEFINITIONS. Capitalized terms not otherwise
defined herein shall have the meanings given in the Loan
Agreement. In addition to the other terms defined elsewhere in
this Agreement, as used herein the following terms shall have the
following meanings:
"Borrower Obligations" shall mean any and all of the
obligations of the Borrower under the Loan Agreement, the Note or
the other Loan Documents to which the Borrower is a party or by
which it is bound.
"Loan Documents" shall mean the Loan Agreement, this
Agreement, and all agreements and instruments from time to time
delivered under or in connection with any of the foregoing, in
each case as the same may be amended from time to time.
"Call Purchase Date" shall mean such date after the date on
which an Event of Default has occurred, as shall be specified in
written notice from the Purchaser to the Lender as the "Call
Purchase Date" hereunder, but in any event not less than five
Business Days after the date of such notice.
"Purchaser Credit Agreement" shall mean the Second Amended and
Restated Credit Agreement, dated as of May 26, 1999, among the
Purchaser, First Union National Bank, as Administrative Agent,
and the lenders party thereto, as the same may be amended,
restated, renewed or supplemented from time to time, and any
credit agreement or loan agreement that refinances, replaces or
is substituted for the Purchaser Credit Agreement or any
refinancing, replacement or substitute credit or loan agreement.
ARTICLE II
CALL
2.1 CALL. The Purchaser shall have the absolute,
unconditional and irrevocable right (but not the obligation, except as and to
the extent set forth under the Note Purchase Agreement) to purchase from the
Lender, and the Lender shall be absolutely, unconditionally and irrevocably
obliged to transfer and sell to the Purchaser, on the Call Purchase Date, the
Note for a purchase price equal to the then outstanding unpaid principal amount
of and accrued interest on the Note, together with all other amounts then due
and payable by the Borrower to the Lender under the Loan Agreement. Such payment
shall be made against delivery by the Lender to the Purchaser of an Assignment
of Note in substantially the form of Exhibit A to this Agreement . The purchase
of the Note by the Purchaser shall be without representation, warranty or
recourse of any kind from the Lender, other than the representation that the
Lender is transferring the Note free and clear of any lien, charge or other
encumbrance created by the Lender. The right of the Purchaser hereunder is in no
way conditioned upon any attempt by the Lender to collect from or proceed
against the Borrower or any other Person or any other event or circumstance.
2.2 REINSTATEMENT. This Agreement shall continue to be
effective, or be automatically reinstated, as the case may be, if at any time
payment of any of the Borrower Obligations is avoided, rescinded or must
otherwise be returned by the Lender for any reason, all as though such payment
had not been made.
2.3 PAYMENTS. All payments to be made by the Purchaser
pursuant to this Agreement shall be made in funds immediately available at the
Lender's office at Xxx Xxxxxx Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000,
without setoff, counterclaim, withholding or other deduction of any nature. All
payments made by the Purchaser pursuant to this Agreement may be applied to the
Borrower Obligations and all other amounts payable under this Agreement in such
order as the Lender may elect.
2.4 CONTINUING AGREEMENT. This Agreement shall continue in
full force and effect until all Borrower Obligations and all other amounts
payable under this Agreement have been paid in cash, and all commitments to
extend credit under the Loan Documents have terminated, subject in any event to
reinstatement in accordance with Section 2.2. Without limiting the generality of
the foregoing, the Lender hereby irrevocably waives any right to terminate or
revoke this Agreement.
2.5 RELEASE OF COLLATERAL. The Lender agrees with the
Purchaser that it will not release or exchange any collateral securing the Note
except in connection with the exercise of its remedies under the Pledge
Agreement or pursuant to the Note Purchase Agreement.
ARTICLE III
MISCELLANEOUS
3.1 AMENDMENTS, ETC. No amendment to or waiver of any
provision of this Agreement, and no consent to any departure by the Lender of
its obligations hereunder, shall in any event be effective unless in a writing
manually signed by the Purchaser. Any such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
3.2 NO IMPLIED WAIVER; REMEDIES CUMULATIVE. No delay or
failure of a party in exercising any right or remedy under this Agreement shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right or remedy preclude any other or further exercise thereof or the
exercise of any other right or remedy. The rights and remedies of the parties
under this Agreement are cumulative and not exclusive of any other rights or
remedies available hereunder, under any other agreement, at law, or otherwise.
3.3 NOTICES. Except to the extent, if any, otherwise
expressly provided herein, all notices and other communications (collectively,
"notices") under this Agreement shall be in writing (including facsimile
transmission) and shall be sent by first-class mail, by nationally-recognized
overnight courier, by personal delivery, or by facsimile transmission, in all
cases with charges prepaid. All notices shall be sent, if to the Purchaser, to
its address specified on the signature page hereof, or if to the Lender, to its
address specified in the Loan Agreement, or, in any case, to such other address
as shall have been designated by the applicable party by notice to the other
party hereto. Any properly given notice shall be effective when received, except
that properly given notices to the Purchaser shall be effective at the following
time, if earlier: if given by telephone, when telephoned; if by first-class
mail, three Business Days after deposit in the mail; if by overnight courier,
one Business Day after pickup by such courier; and if by facsimile transmission,
upon transmission (receipt confirmed). The Lender may rely on any notice
(whether or not made in a manner contemplated by this Agreement) purportedly
made by or on behalf of the Purchaser, and the Lender shall have no duty to
verify the identity or authority of the Person giving such notice.
3.4 EXPENSES. The Purchaser agrees to pay upon demand all
reasonable expenses (including reasonable fees and expenses of counsel) which
the Lender may incur from time to time arising from or relating to the
administration of, or exercise, enforcement or preservation of rights or
remedies under, this Agreement.
3.5 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all prior and contemporaneous understandings and agreements with
respect to such subject matter.
3.6 SURVIVAL. All representations and warranties of the
Purchaser contained in or made in connection with this Agreement shall survive,
and shall not be waived by, the execution and delivery of this Agreement, any
investigation by or knowledge of the Lender, any extension of credit, or any
other event or circumstance whatever.
3.7 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, and all such
counterparts shall constitute but one and the same agreement.
3.8 CONSTRUCTION. In this Agreement, unless the context
otherwise clearly requires, references to the plural include the singular, the
singular the plural, and the part the whole; the neuter case includes the
masculine and feminine cases; and "or" is not exclusive. In this Agreement, any
references to property (or similar terms) include any interest in such property
(or other item referred to); "include," "includes," "including" and similar
terms are not limiting; "hereof," "herein," "hereunder" and similar terms refer
to this Agreement as a whole and not to any particular provision; and
"expenses," "costs," "out-of-pocket expenses" and similar terms include the
charges of in-house counsel, auditors and other professionals of the relevant
Person to the extent that such charges are routinely identified and charged
under such Person's cost accounting system. Section and other headings in this
Agreement, and any table of contents herein, are for reference purposes only and
shall not affect the interpretation of this Agreement in any respect. Section
and other references in this Agreement are to this Agreement unless otherwise
specified. This Agreement has been fully negotiated between the applicable
parties, each party having the benefit of legal counsel, and accordingly neither
any doctrine of construction of suretyships in favor of a surety nor any
doctrine of construction of ambiguities against the party controlling the
drafting shall apply to this Agreement.
3.9 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon the Lender, its successors and assigns, and shall inure to the benefit of
and be enforceable by the Purchaser and its successors and assigns. Without
limitation of the foregoing, the Lender (and any successive assignee or
transferee) from time to time may assign or otherwise transfer all or any
portion of its rights or obligations under the Loan Documents (including all or
any portion of any commitment to extend credit), or any Borrower Obligations,
including the Note, to any other Person, and such Note and Borrower Obligations
(including any Borrower Obligations resulting from extension of credit by such
other Person under or in connection with the Loan Documents) shall be and remain
the Note and Borrower Obligations entitled to the benefit of this Agreement, and
to the extent of its interest in such Note and other Borrower Obligations such
other Person shall be vested with all the benefits in respect thereof granted to
the Lender in this Agreement or otherwise; PROVIDED that any assignee shall, as
a condition to such assignment, agree in writing to be bound by this Agreement,
as and to the extent it applies to the Lender, as if such assignee was an
original signatory hereto.
3.10 CERTAIN LEGAL MATTERS.
(a) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York,
exclusive of choice of law principles.
(b) SUBMISSION TO JURISDICTION AND VENUE; CONSENT TO SERVICE
OF PROCESS; WAIVER OF JURY TRIAL; Etc. To the fullest extent
permitted by law, the Lender hereby irrevocably and
unconditionally:
(i) agrees that any action, suit or proceeding by any
Person arising from or relating to this Agreement or any
other Loan Document or any statement, course of conduct,
act, omission or event in connection with any of the
foregoing (collectively, "Related Litigation") may be
brought in any state or federal court of competent
jurisdiction sitting in New York, New York, submits to the
jurisdiction of such courts, (but nothing herein shall
affect the right of the Lender to bring any Related
Litigation in any other forum);
(ii) acknowledges that such courts will be the most
convenient forum for any Related Litigation, waives any
objection to the laying of venue of any Related Litigation
brought in any such court, waives any claim that any Related
Litigation brought in any such court has been brought in an
inconvenient forum, and waives any right to object, with
respect to any Related Litigation, that such court does not
have jurisdiction over it;
(iii) consents and agrees to service of any summons,
complaint or other legal process in any Related Litigation
by registered or certified U.S. mail, postage prepaid, to it
at the address for notices described in this Agreement, and
consents and agrees that such service shall constitute in
every respect valid and effective service (but nothing
herein shall affect the validity or effectiveness of process
served in any other manner permitted by law); and
(iv) waives the right to trial by jury in any Related
Litigation.
(c) LIMITATION OF LIABILITY. To the fullest extent permitted
by law, no claim may be made by the Purchaser against the Lender
or any affiliate, director, officer, employee, attorney or agent
of the Lender for any special, indirect, consequential or
punitive damages in respect of any claim arising from or relating
to this Agreement or any other Loan Document or any statement,
course of conduct, act, omission or event in connection with any
of the foregoing (whether based on breach of contract, tort or
any other theory of liability); and the Purchaser hereby waives,
releases and agrees not to xxx upon any claim for any such
damages, whether or not accrued and whether or not known or
suspected to exist.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed and delivered
this Note Call Agreement by their duly authorized representatives as of
the date first above written.
SUBURBAN PROPANE, L.P.
By:
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Name:
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Title:
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Address for Notices:
Xxx Xxxxxxxx Xxxxx
000 Xxxxx 00 Xxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
MELLON BANK, N.A.
By:
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Name:
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Title:
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EXHIBIT A
Form of Assignment of Note
Assignment of Note
FOR VALUE RECEIVED, Mellon Bank, N.A. ("Assignor") hereby
sells, assigns and transfers to Suburban Propane, L.P. ("Assignee"), without
recourse, representation or warranty (express or implied) except as set forth in
the next sentence hereof, all of Assignor's right, title and interest in and to
the promissory note dated May 26, 1999, of Suburban Energy Services Group LLC.
Assignor represents to Assignee that Assignor is transferring such promissory
note free and clear of any lien, charge or other encumbrance created by
Assignor.
Mellon Bank, N.A.
By:
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(Signature)
Name:
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Title:
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Date:
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