EXHIBIT 10.(h)
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EXECUTION COPY
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NOTE PURCHASE AGREEMENT
THIS AGREEMENT, dated as of May 26, 1999, made by Suburban Propane,
L.P., a limited partnership organized under the laws of the State of Delaware
(the "Purchaser"), in favor of 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 a 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 this Agreement. This
Agreement is made by the Purchaser among other things to induce the Lender to
enter into the Loan Documents (as defined below) and to induce the Lender to
extend credit under the Loan Agreement.
C. The Purchaser acknowledges that the Lender has relied and will rely
on this Agreement in entering into the Loan Documents and extending credit under
the Loan Agreement. The Purchaser further acknowledges that it has,
independently and without reliance upon the Lender or any representation by or
other information from the Lender, made its own credit analysis and decision to
enter into this 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.
"Note" shall mean the promissory note of the Borrower, dated
May 26, 1999 issued under the Loan Agreement and any replacement
therefor.
"Purchase Date" shall mean such date, not less than 5 business
days after the date on which an Event of Default arising under Sections
7.01(a), (h) or (i) of the Loan Agreement as in effect on the date
hereof has occurred, as shall be specified in written notice from the
Lender to the Purchaser as the "Purchase Date" hereunder.
"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 Purchase
Credit Agreement or any refinancing, replacement or substitute credit
or loan agreement.
Article II
Note Purchase
2.1. NOTE PURCHASE. The Purchaser hereby absolutely,
unconditionally and irrevocably agrees to purchase from the Lender, on the
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 sale of the Note by the Lender shall be without
representation, warranty or recourse of any kind to 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 obligation of the
Purchaser hereunder is in no way conditioned upon any attempt to collect from or
proceed against the Borrower or any other Person or any other event or
circumstance. The obligations of the Purchaser under this Agreement are direct
and primary obligations of the Purchaser and are independent of the Borrower
Obligations, and a separate action or actions may be brought against the
Purchaser regardless of whether action is brought against the Borrower or any
other Person or whether the Borrower or any other Person is joined in any such
action or actions.
2.2. OBLIGATIONS ABSOLUTE. The Purchaser agrees that, to the
fullest extent permitted by law, its obligation to purchase the Note and pay the
purchase price therefor will be performed and paid strictly in accordance with
the terms of the Loan Documents, regardless of any law, regulation or order now
or hereafter in effect in any jurisdiction affecting the Borrower Obligations,
any of the terms of the Loan Documents or the rights of the Lender or any other
Person with respect thereto. To the fullest extent permitted by law, the
obligations of the Purchaser under this Agreement shall be absolute,
unconditional and irrevocable, irrespective of any of the following:
(a) any lack of legality, validity, enforceability,
allowability (in a bankruptcy, insolvency, reorganization, dissolution or
similar proceeding, or otherwise), or any avoidance or subordination, in whole
or in part, of any Loan Document or any of the Borrower Obligations;
(b) any change in the amount, nature, time, place or manner of
payment or performance of, or in any other term of, any of the Borrower
Obligations (whether or not such change is contemplated by the Loan Documents as
presently constituted, and specifically including any increase in the Borrower
Obligations, whether resulting from the extension of additional credit to the
Borrower or otherwise), any execution of any additional Loan Documents, or any
amendment or waiver of or any consent to departure from any Loan Document;
(c) any taking, impairment or nonperfection of any collateral,
or any taking, release, impairment or amendment or waiver of or consent to
departure from any guaranty or other direct or indirect security for any of the
Borrower Obligations;
(d) any manner of application of collateral or other direct or
indirect security for any of the Borrower Obligations, or proceeds thereof, to
any of the Borrower Obligations or to other obligations secured thereby, or any
manner of sale or other disposition of any collateral for any of the Borrower
Obligations or any other assets of the Borrower;
(e) any impairment by the Lender or any other Person of any
recourse of the Purchaser against the Borrower or any other Person, or any other
impairment by the Lender or any other Person of any suretyship status of the
Purchaser;
(f) any bankruptcy, insolvency, reorganization, dissolution or
similar proceedings with respect to, or any change, restructuring or termination
of the corporate or other organizational structure or existence of, the
Borrower, the Purchaser or any other Person;
(g) any failure of the Lender or any other Person to disclose
to the Purchaser any information pertaining to the business, operations,
condition (financial or other) or prospects of the Borrower or any other Person,
or to give any other notice, disclosure or demand; or any other event or
circumstance (including any defense of failure of consideration, breach of
representation or warranty, statute of frauds, bankruptcy, lack of capacity,
statute of limitations, release, accord and satisfaction or usury, and excluding
only the defense of full, strict and indefeasible payment and performance) that
might otherwise constitute a defense available to, a discharge of, or a
limitation on the obligations of, the Borrower, the Purchaser or a guarantor or
surety.
2.3. WAIVERS, ETC. To the fullest extent permitted by law, the
Purchaser hereby irrevocably waives any defense to or limitation on its
obligations under this Agreement arising out of or based upon any matter
referred to in Section 2.2 and, without limiting the generality of the
foregoing, any requirement of promptness, diligence or notice of acceptance, any
other notice, disclosure or demand with respect to any of the Borrower
Obligations and this Agreement, any requirement of acceptance hereof, reliance
hereon or knowledge hereof by the Lender, and any requirement that the Lender
protect, secure, perfect or insure any lien or any property subject thereto or
exhaust any right or take any action against the Borrower or any other Person or
any collateral or other direct or indirect security for any of the Borrower
Obligations.
2.4. 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.
2.5. 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
2.6. 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 2.4. Without limiting the generality of
the foregoing, the Purchaser hereby irrevocably waives any right to terminate or
revoke this Agreement.
2.7. 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.
Article III
Representations and Warranties
The Purchaser hereby represents and warrants to the Lender as follows:
3.1 PARTNERSHIP STATUS. The Purchaser is a limited partnership
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization. The Purchaser has the power to own its property
and to transact the business in which it is engaged or proposes to engage. The
Purchaser is duly qualified to do business as a foreign partnership and is in
good standing in all jurisdictions in which the ownership of its properties or
the nature of its activities or both makes such qualification necessary or
advisable.
3.2. POWER AND AUTHORIZATION. The Purchaser has the power to
execute, deliver and perform its obligations under this Agreement and each other
Loan Document to which it is a party, and the Purchaser has taken all necessary
partnership action to authorize such execution, delivery and performance.
3.3. EXECUTION AND BINDING EFFECT. This Agreement and each other
Loan Document to which the Purchaser is a party have been duly executed and
delivered by the Purchaser and constitutes the legal, valid and binding
obligation of the Purchaser, enforceable against the Purchaser in accordance
with their respective terms.
3.4. GOVERNMENTAL APPROVALS AND FILINGS. No authorization, approval
or other action by, and no notice to or filing with, any governmental authority
or regulatory body is or will be necessary or advisable in connection with
execution, delivery or performance by the Purchaser of this Agreement or any
other Loan Document to which it is a party, or to ensure the legality, validity,
binding effect, enforceability or admissibility in evidence thereof.
3.5. ABSENCE OF CONFLICTS. The execution, delivery and performance
by the Purchaser of this Agreement and the other Loan Documents does not and
will not
(a) violate or conflict with any law, regulation or ordinance
or any order of any court or other governmental authority or regulatory
body, or
(b) violate, conflict with or constitute a default under, OR
result in (or give rise to any right of any Person to cause) any
termination, cancellation, prepayment or acceleration of performance
of, OR result in the creation or imposition of (or give rise to any
obligation to create or impose) any lien, security interest, option or
other charge or encumbrance upon any of the property of the Purchaser
pursuant to, OR otherwise result in (or give rise to any right,
contingent or otherwise, of any Person to cause) any change in any
right, power, privilege, duty or obligation of the Purchaser under or
in connection with,
(i) the certificate of limited partnership or
partnership agreement (or other constituent documents)
of the Purchaser, or
(ii) any agreement or instrument binding on or affecting
the Purchaser or any of its properties (now owned or hereafter
acquired).
3.6. PROCEEDINGS. The ultimate determination of all proceedings
pending or, to the best of its knowledge, threatened against the Purchaser or
any of its affiliates at law or in equity or before any governmental
instrumentality or in any arbitration will not, in the aggregate, materially
impair its ability to perform its obligations under this Agreement or any Loan
Document to which the Purchaser is a party, and no such proceeding purports or
is likely to affect the legality, validity or enforceability of this Agreement
or any Loan Document to which the Purchaser is a party.
3.7. INFORMATION. All information furnished by the Purchaser or on
its behalf in connection with this Agreement is true, accurate and complete in
all material respects.
Article IV
Covenants
4.1. COVENANTS GENERALLY. Reference is hereby made to the
provisions of Sections 8.1, 8.5, 8.6, 8.12, 10.5, 10.7, and 10.8 of the
Purchaser Credit Agreement (together with all related definitions and
cross-references). To the extent such provisions impose upon the Purchaser (or a
Subsidiary of the Purchaser) a duty to do or refrain from doing certain acts or
things or to meet or refrain from meeting certain conditions, the Purchaser
shall (or shall cause such Subsidiary of the Purchaser to, as the case may be)
do or refrain from doing such acts or things, or meet or refrain from meeting
such conditions, as the case may be. Any reference to the Administrative Agent
or the Lender(s) therein shall be deemed to be a reference to the Lender for
purposes hereof.
4.2. MAINTENANCE OF BORROWING AVAILABILITY UNDER CREDIT AGREEMENT.
The Purchaser shall at all times cause there to be available under the Purchaser
Credit Agreement an aggregate amount of unborrowed commitments thereunder at
least equal to the outstanding principal amount of and accrued interest on the
Note.
4.3. FURTHER ASSURANCES. The Purchaser will make, execute and
deliver all such additional and further acts, things, deeds and instruments as
the Lender may reasonably require to carry out the purposes of this Agreement
and insure the Lender's rights hereunder.
Article V
Limitations on Payment and Remedies
5.1. PROHIBITION ON PAYMENT UPON PURCHASER LOAN DEFAULT. No direct
or indirect payment (in cash, property, securities or by set-off or otherwise)
shall be made of or on account of the obligations of the Purchaser under this
Agreement and the Lender shall not accept (whether in cash, property or
securities or by set-off or otherwise) from the Purchaser any payment of or on
account of such obligations except at such time as no Default or Event of
Default (each as defined in the Purchaser Credit Agreement, and herein a
"Purchaser Credit Default") exists or would be caused by such payment.
5.2. LIMITATION ON REMEDIES. At any time that a Purchaser Credit
default exists, the Lender shall not take or cause to be taken any action
against the Purchaser (including, without limitation, commencing any legal
action against the Purchaser or filing or joining in the filing of any
insolvency petition against the Purchaser) with respect to the Purchaser's
failure to perform its obligations hereunder, whether permitted by the
provisions of this Article V or otherwise, until (a) the expiration of the 180
day period commencing on the date a notice of intention to exercise remedies
hereunder, following a failure by the Purchaser to timely pay the purchase price
set forth in Section 2.1, shall have been given by the Lender to the Purchaser
and to the Administrative Agent (as defined in the Purchaser Credit Agreement),
or (b) such sooner time that (i) the holders of Purchaser Indebtedness (as
defined below) exercise any acceleration remedies in respect of a Purchase
Credit Default pursuant to the Purchaser Credit Agreement, (ii) an automatic
acceleration occurs pursuant to the Purchase Credit Agreement, or (iii) the
holders of the Purchaser Indebtedness, or any of them individually or through
the Administrative Agent shall file or join in filing any insolvency petition
against the Purchaser. Lender agrees that it will rescind any action that it has
taken pursuant to (b) above if the action of the holders of the Purchaser
Indebtedness enabling the Lender to take such action has been rescinded by such
holders.
5.3. PAYMENTS AND DISTRIBUTIONS RECEIVED. If the Lender shall have
received any payment from, or distribution of assets of, the Purchaser in
respect of any of the Purchaser's obligations hereunder in contravention of the
terms of this Article V, then and in such event such payment or distribution
shall be received and held in trust for, and shall be paid over or delivered to,
the holders of the indebtedness arising under the Purchaser Credit Agreement
(the "Purchaser Indebtedness"), or to the applicable agent on their behalf, for
application to the Purchaser Indebtedness, to the extent necessary to pay all
such Purchaser Indebtedness in full in the form received (except for the
endorsement or assignment of the Lender where necessary).
5.4. RELATIVE RIGHTS. This Article V defines the relative rights of
the Lender and the holders of the Purchaser Indebtedness. Nothing in this
Article V shall impair, as between the Purchaser and the Lender, the obligations
of the Purchaser, which are absolute and unconditional, to pay the purchase
price set forth in Section 2.1 in accordance with the provisions hereof.
5.5. COVENANTS OF THE LENDER. The Lender shall not take any
security or collateral to secure the obligations of the Purchaser hereunder or
any part thereof unless any security or collateral is granted to holders of the
Purchaser Indebtedness. The Lender further acknowledges and consents that,
without notice to or assent by the Lender, and without affecting the rights and
benefits of the holders of the Purchaser Indebtedness set forth in this Article
V:
(a) The obligations and liabilities of the Purchaser for the
Purchaser Indebtedness may, from time to time, be increased, renewed,
refinanced, extended, modified, amended, restated, compromised, supplemented,
terminated, waived or released;
(b) The holders of the Purchaser Indebtedness, and any
representative or representatives acting on behalf thereof, may exercise or
refrain from exercising any right, remedy or power granted by or in connection
with any agreements relating to the Purchaser Indebtedness and the provisions of
this Article V; and
(c) Any balance or balances of funds with any holder of the
Purchaser Indebtedness at any time outstanding to the credit of the Purchaser
may, from time to time, in whole or in part, be surrendered or released;
all as the holders of the Purchaser Indebtedness, and any representative or
representatives acting on behalf thereof, may deem advisable, and all without
impairing, abridging, diminishing, releasing or affecting the limitations
provided for herein.
5.6. MISCELLANEOUS. To the extent permitted by applicable law, the
Lender and the Purchaser hereby waive (a) notice of acceptance hereof and
reliance hereon by the holders of the Purchaser Indebtedness and (b) all
diligence in the collection or protection of or realization upon the Purchaser
Indebtedness. The Lender and the Purchaser hereby expressly acknowledge and
agree that (i) the holders of the Purchaser Indebtedness are intended
third-party beneficiaries of the provisions of Article V of this Agreement and
any provisions specifically made subject thereto and may enforce any and all
rights derived herein by suit, either in equity or law, for specific performance
of any agreement contained in this Article V or for judgment at law and an other
relief whatsoever appropriate to such action or procedure and (ii) the foregoing
provisions are, and are intended to be, an inducement and a consideration to
each holder of the Purchaser Indebtedness, whether such Purchaser Indebtedness
was created or acquired before or after the issuance of this Agreement, and each
holder of the Purchaser Indebtedness shall be deemed conclusively to have relied
upon such provisions in acquiring and continuing to hold such Purchaser
Indebtedness.
Article VI
Miscellaneous
6.1. AMENDMENTS, ETC. No amendment to or waiver of any provision of
this Agreement, and no consent to any departure by the Purchaser here from,
shall in any event be effective unless in a writing manually signed by or on
behalf of the Lender; provided, however, that no amendment to Article V of this
Agreement or any section hereof specifically made subject to Article V shall be
made without the prior written consent of the Administrative Agent under the
Purchaser Credit Agreement, such consent not to be unreasonably withheld. Any
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
6.2. NO IMPLIED WAIVER; REMEDIES CUMULATIVE. No delay or failure of
the Lender 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 Lender under this
Agreement are cumulative and not exclusive of any other rights or remedies
available hereunder, under any other agreement, at law, or otherwise.
6.3. 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.
6.4. EXPENSES. Subject to the provisions of Article V, 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.
6.5. 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.
6.6. 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.
6.7. 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.
6.8. SETOFF. Subject to the provisions of Article V, in the event
that any obligation of the Purchaser now or hereafter existing under this
Agreement or any other Loan Document shall have become due and payable, the
Lender shall have the right from time to time, without notice to the Purchaser,
to set off against and apply to such due and payable amount any obligation of
any nature of the Lender to the Purchaser, including all deposits (whether time
or demand, general or special, provisionally or finally credited, however
evidenced) now or hereafter maintained by the Purchaser with the Lender. Subject
to the provisions of Article V, to the fullest extent permitted by law, such
right shall be absolute and unconditional in all circumstances and, without
limitation, shall exist whether such obligation to the Purchaser is absolute or
contingent, matured or unmatured (it being agreed that the Lender may deem such
obligation to be then due and payable at the time of such setoff), regardless of
the offices or branches through which the parties are acting with respect to the
offset obligations, regardless of whether the offset obligations are denominated
in the same or different currencies, and regardless of the existence or adequacy
of any other direct or indirect security or any other right or remedy available
to the Lender. Except as set forth in Article V, nothing in this Agreement or
any other Loan Document shall be deemed a waiver of or restriction on any right
of setoff or banker's lien available to the Lender under this Section 6.8, at
law or otherwise.
6.9. 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.
6.10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
the Purchaser, its successors and assigns, and shall inure to the benefit of and
be enforceable by the Lender 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 but shall be
expressly subject to the provisions of Article V, 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, but subject to the provisions of Article V.
6.11. 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 Purchaser 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, and agrees not to bring any Related Litigation in any
other forum (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.
IN WITNESS WHEREOF, the Purchaser has executed and delivered this
Agreement as of the date first above written.
SUBURBAN PROPANE, L.P.
By
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
Address for Notices:
Xxx Xxxxxxxx Xxxxx
000 Xxxxx 00 Xxxx
Xxxxxxxx, XX 00000-0000
Attn.: Treasurer
Telephone: 000-000-0000
Fax: 000-000-0000
ACCEPTED AND AGREED:
MELLON BANK, N.A.
By
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Name:
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Title:
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subunpam.bdk
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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