FIRST AMENDMENT
TO INTERCREDITOR AND AGENCY AGREEMENT
This FIRST AMENDMENT TO INTERCREDITOR AND AGENCY AGREEMENT
(this "Amendment"), dated as of July 31, 2001, 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, Petrolane and each of the undersigned Restricted Subsidiaries of the
Company are, collectively, the "General Obligors") and BANK OF AMERICA, N.A.
acting pursuant to a direction notice given in accordance with Section 8(a) of
the Intercreditor Agreement (formerly Bank of America National Trust and Savings
Association), a national banking association, in its capacity as Collateral
Agent for the Secured Creditors (the "Collateral Agent"), and amends that
certain Intercreditor and Agency Agreement, dated as of April 19, 1995 (as the
same is in effect immediately prior to the effectiveness of this Amendment, the
"Existing Intercreditor Agreement" and as the same may be amended, supplemented
or modified and in effect from time to time, the "Intercreditor Agreement"), by
and among the General Obligors, the original purchasers of the Notes as set
forth in Schedule I to the Existing Intercreditor Agreement (as defined below)
and any successors of assigns thereof (the "Note Holders"), BANK OF AMERICA,
N.A., in its capacity as Agent under the Intercreditor Agreement and any
successors or assigns thereof (in such capacity, the "Agent"), the Collateral
Agent and MELLON BANK, N.A., a national banking association, in its capacity as
Cash Collateral Sub-Agent for the Secured Creditors (the "Cash Collateral
Sub-Agent"). Capitalized terms used and not otherwise defined in this Amendment
shall have the same meanings in this Amendment as set forth in the Intercreditor
Agreement, and the rules of interpretation set forth in Section 1.2 of the
Intercreditor Agreement shall be applicable to this Amendment.
RECITAL
The Company has requested certain amendments of the Existing
Intercreditor Agreement, and the Secured Creditors are willing to agree to so
amend the Existing Intercreditor Agreement 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:
SECTION 1. Amendment. On the terms of this Amendment and
subject to the satisfaction of the conditions precedent set forth below in
Section 2:
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(a) The definition of Parity Debt in Appendix A of the
Existing Intercreditor Agreement is hereby amended and restated in its entirety
as follows:
"Parity Debt" Indebtedness of the Company that is (a)
incurred in accordance with (i) Section 10.1(a), 10.1(b),
10.1(e), 10.1(f) or 10.1(k) of the Note Agreements and (ii)
Sections 8.1(a), 8.1(b), 8.1(e), 8.1(f) and 8.1(l) of the
Credit Agreement (other than Indebtedness evidenced by the
Notes or the Bank Notes, but including in any event the Public
Notes) and (b) secured by the respective Liens of the Security
Documents in accordance with (i) Section 10.2(j), 10.2 (k),
10.2 (l) or 10.2 (m) of the Note Agreements and (ii) Section
8.3(j), 8.3(k), 8.3(l) or 8.3(m) of the Credit Agreement.
(b) Section 6(a)(ii) of the Existing Intercreditor Agreement
is hereby amended by replacing subsection (2) therein with the following:
together with evidence that the incurrence of the
Indebtedness to be issued under the New Parity Debt Agreements
complies with the terms of Section 10.1(a), 10.1(b), 10.1(e),
10.1(f) or 10.1(k) of the Note Agreements and Section 8.1(a),
8.1(b), 8.1(e), 8.1(f) or 8.1(l) of the Credit Agreement;
(c) Section 2(c) in Exhibit A of the Existing Intercreditor
Agreement is hereby amended by replacing such Section 2(c) with the
following:
as evidenced by the calculations contained in the
attached schedule, the Indebtedness to be issued under the New
Parity Debt Agreement complies with the terms of Section
10.1(a), 10.1(b), 10.1(e), 10.1(f) or 10.1(k) of the Note
Agreements and Section 8.1(a), 8.1(b), 8.1(e), 8.1(f) or
8.1(l) of the Credit Agreement.
SECTION 2. Conditions to Effectiveness. 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
Collateral Agent shall have received, on behalf of the Secured Creditors, this
Amendment, duly executed and delivered by each of the General Obligors and by
the Collateral Agent acting pursuant to a Direction Notice.
(b) The Amendment Effective Date (as defined in the
Fifth Amendment to Amended and Restated Credit Agreement and Consent and Waiver
dated as of July 31, 2001, by and among the Company, the General Partner,
Petrolane, each of the financial institutions that is a signatory thereto
(collectively, the "Banks") and Bank of America, N.A. (formerly Bank of America
National Trust and Savings Association), as agent for the Banks (in such
capacity, the "Agent")) shall have occurred.
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(c) On or before the Amendment Effective Date, all
corporate, partnership and other proceedings taken or to be taken in connection
with the transactions contemplated by this Amendment, and all documents
incidental thereto, shall be reasonably satisfactory in form and substance to
the Collateral Agent and its counsel, and the Collateral Agent and such counsel
shall have received all such counterpart originals or certified copies of such
documents as they may reasonably request.
SECTION 3. The General Obligors' Representations and
Warranties. In order to induce the Secured Creditors to enter into this
Amendment and to amend the Existing Intercreditor Agreement in the manner
provided in this Amendment, each General Obligor represents and warrants to each
Secured Creditor 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 Intercreditor Agreement as amended by this Amendment (hereafter
referred to as the "Amended Intercreditor 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 Intercreditor 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 Intercreditor Agreement. Each Restricted Subsidiary (other than
Columbia Propane, L.P. and its Subsidiaries) 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 Intercreditor
Agreement.
(b) Authorization of Agreements. The execution and
delivery of this Amendment by the Company, the General Partner, Petrolane and
each Restricted Subsidiary (other than Columbia Propane, L.P. and its
Subsidiaries) and the performance of the Amended Intercreditor Agreement by the
Company, the General Partner, Petrolane and each Restricted Subsidiary (other
than Columbia Propane, L.P. and its Subsidiaries) 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
(other than Columbia Propane, L.P. and its Subsidiaries).
(c) Enforceability. The Amended Intercreditor
Agreement constitutes the legal, valid and binding obligation of the Company,
the General Partner, Petrolane and each Restricted Subsidiary that is a party
hereto, enforceable against the Company, the General Partner, Petrolane and each
Restricted Subsidiary that is a party hereto in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
moratorium or similar laws affecting creditors' rights generally.
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(d) No Conflict. The execution, delivery and
performance by each of the Company, the General Partner, Petrolane and each
Restricted Subsidiary that is a party hereto of this Amendment, and the
performance by each of the Company, the General Partner, Petrolane and each
Restricted Subsidiary that is a party hereto of the Amended Intercreditor
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 General
Obligors to create) any Lien not permitted by Section 8.3 of the Credit
Agreement and under Section 10.2 of the Note Agreements.
(e) Governmental Consents. Except for Routine
Permits, (i) no consent, approval or authorization of, or declaration or filing
with, any Governmental Authority is required for the valid execution, delivery
and performance of this Amendment by the Company, the General Partner, Petrolane
and each Restricted Subsidiary that is a party hereto.
(f) Representations and Warranties in the
Intercreditor Agreement. The Company, the General Partner and Petrolane confirm
that, as of the Amendment Effective Date, that no General Default or General
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 and under Section 10.2 of the Note Agreements.
(h) Subsidiaries. As of the Amendment Effective Date,
the Company has no Restricted Subsidiaries other than AmeriGas Propane Parts &
Service, Inc., AmeriGas Eagle Parts & Service, Inc., Columbia Propane, L.P. (to
be renamed AmeriGas Eagle Propane, L.P.), CP Holdings, Inc. (to be renamed
AmeriGas Eagle Holdings, Inc.) and Columbia Propane Corporation (to be renamed
AmeriGas Eagle Propane, Inc.).
SECTION 4. Miscellaneous.
(a) Reference to and Effect on the Existing
Intercreditor 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 Intercreditor Agreement and the Security
Documents shall remain in full force and effect and are hereby ratified
and confirmed.
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(ii) The execution and delivery of this
Amendment and performance of the Amended Intercreditor 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 Intercreditor Agreement or any Security
Document.
(iii) Upon the conditions precedent set
forth herein being satisfied, this Amendment shall be construed as one
with the Existing Intercreditor Agreement, and the Existing
Intercreditor 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 Credit Agreement and Section 16.1 of the Note Agreements.
(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.
GENERAL OBLIGORS
AMERIGAS PROPANE, L.P., a Delaware limited
partnership
By: AMERIGAS PROPANE, INC.
Its: General Partner
By:
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Name:
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Title:
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AMERIGAS PROPANE, INC.
By:
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Name:
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Title:
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PETROLANE INCORPORATED
By:
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Name:
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Title:
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AMERIGAS PROPANE
PARTS & SERVICE, INC.
By:
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Name:
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Title:
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COLLATERAL AGENT
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Collateral Agent
By:
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Name:
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Title:
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