EXECUTION COPY
KEEP WELL AGREEMENT
THIS KEEP WELL AGREEMENT (this "Keep Well Agreement"), dated as of August
21, 2001, is entered into by and between AMERIGAS PROPANE, L.P., a Delaware
limited partnership (the "Buyer"), and COLUMBIA PROPANE CORPORATION, a Delaware
corporation (the "Company").
WHEREAS, pursuant to Section 10.2(c) of that certain Amended and Restated
Purchase Agreement, dated as of August 7,200l (the "Columbia Propane Purchase
Agreement"), by and among Columbia Energy Group, a Delaware corporation
("Seller"), the Company, Columbia Propane, L.P., a Delaware limited partnership
("CPLP"), CP Holdings, Inc., a Delaware corporation, the Buyer, AmeriGas
Partners, L.P., a Delaware limited partnership, and AmeriGas Propane, Inc., a
Pennsylvania corporation, the Buyer has agreed to enter into this Keep Well
Agreement relating to certain of the Company's indemnity obligations under that
certain Purchase Agreement, dated April 5, 1999 (the "National Propane Purchase
Agreement"), by and among Columbia Propane, L.P. (which was later dissolved with
its assets being distributed to the Company and CPH), CPH, the Company, National
Propane Partners, L.P., National Propane Corporation (the "Special Limited
Partner"), National Propane SGP, Inc. and Triarc Companies, Inc. ("Triarc"), as
more fully described below;
WHEREAS, pursuant to the Columbia Propane Purchase Agreement, the Company,
among other things, is selling a significant portion of its assets and
liabilities to the Buyer and is also distributing certain of its assets to the
Seller (the "Asset Sale");
WHEREAS, pursuant to the terms of the National Propane Purchase Agreement,
the Company agreed to indemnify (i) the Special Limited Partner (and its
successors and permitted assigns in accordance with the National Propane
Purchase Agreement) for certain losses described in Sections 5.2 (the last
paragraph thereof), 5.9 and 5.14 thereof (collectively, the "Tax Indemnity
Provisions"), and (ii) Triarc, the Special Limited Partner and certain other
identified parties for certain losses in connection with various obligations of
the Company under the National Propane Purchase Agreement pursuant to Section
9.1 thereof; and
WHEREAS, following the Asset Sale; the Buyer desires to ensure that the
Company is financially able to satisfy its obligations under the Tax Indemnity
Provisions and the other indemnity provisions of the National Propane Purchase
Agreement.
NOW THEREFORE, for good and valuable consideration, including the
consideration set forth in the Columbia Propane Purchase Agreement, receipt of
which is hereby acknowledged, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
1. Agreement to Keep Well. The Buyer shall take all actions necessary to
ensure that the Company shall have sufficient available funds in United States
Dollars to pay and discharge, when due and payable, any and all of the
obligations or liabilities of the Company due under the Tax Indemnity Provisions
or the other indemnity provisions of the National Propane Purchase Agreement
(the "Indemnity Obligations"). The Buyer's Keep Well Agreement hereunder shall
be, and is specifically limited to, payments expressly required to be made by
the
Company pursuant to the Indemnity Obligations, and will be subject to the
limitations contained in the National Propane Purchase Agreement that are
applicable to the Company, including, without limitation, the limitations set
forth in Sections 9.1 (c) and (d) of the National Propane Purchase Agreement and
all set-off rights and other defenses applicable to the Company contained
therein, other than defenses arising from the bankruptcy or insolvency of the
Company.
2. Successors. This Keep Well Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
3. Third Party Beneficiaries. Triarc, the Special Limited Partner and any
other parties to whom payment might be expressly required to be made by the
Company pursuant to the Indemnity Obligations are intended to be third party
beneficiaries of this Keep Well Agreement (the "Keep Well Beneficiaries").
Except for the Keep Well Beneficiaries, nothing in this Keep Well Agreement,
express or implied, is intended to confer any rights, benefits or obligations
hereunder upon any person other than the parties hereto and their respective
successors and assigns.
4. Governing Law. This Keep Well Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to its provisions concerning choice of law or choice of forum.
5. Notices. Any notice, request, instruction, correspondence or other
document to be given hereunder by a party to a party hereunder (each, a
"Notice") shall be in writing and delivered in person or by courier service
requiring acknowledgment of receipt of delivery or mailed by certified mail,
postage prepaid and return receipt requested, or by facsimile, as follows:
If to the Buyer, in person, by courier or facsimile, to:
AmeriGas Propane, L.P.
000 Xxxxx Xxxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000
Attention: Vice President -- Law
Fax: (000)000-0000
If to the Buyer by U.S. Mail, to:
AmeriGas Propane, L.P.
X.X. Xxx 000
Xxxxxx Xxxxx, XX 00000
Attn: Vice President -- Law
In each case, with a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 19 103-292 1
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Attn: Xxxxxx X. Xxxxxx
Fax: (000)000-0000
If to the Company, in person, by courier or facsimile, to:
Columbia Propane Corporation
000 Xxxxx Xxxxx Xxxx
Xxxx xx Xxxxxxx, XX 00000
Attention: Vice President -- Law
Fax: (000)000-0000
If to the Company by U.S. Mail, to:
Columbia Propane Corporation
X.X. Xxx 000
Xxxxxx Xxxxx, XX 00000
Attn: Vice President -- Law
In each case, with a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000.
Attn: Xxxxxx X. Xxxxxx
Fax: (000)000-0000
Notice given by personal delivery, courier service or mail shall be effective
upon actual receipt. Notice given by facsimile shall be effective upon actual
receipt if received during the recipient's normal business hours, or at the
beginning of the recipient's next business day after receipt if not received
during the recipient's normal business hours. All Notices by facsimile shall be
confirmed promptly after transmission in writing by certified mail or personal
delivery. Any party may change any address to which Notices are to be given to
it by giving Notice as provided above of such change of address.
6. Amendment. No provision of this Keep Well Agreement may be amended,
supplemented or modified, nor any of the terms and conditions hereof waived,
except by a written instrument executed by the Buyer and the Company, provided
that any such amendment, supplement or modification that adversely affects the
rights of the Keep Well Beneficiaries hereunder shall be consented to by Triarc
or the Special Limited Partner (which consent shall not be unreasonably
withheld, conditioned or delayed).
7. Not a Guaranty. This Keep Well Agreement is not, and nothing contained
herein and nothing done pursuant hereto by the Buyer shall be deemed to
constitute, a guaranty by the Buyer of the payment of any obligation,
indebtedness or liability of any kind or character whatsoever of the Company.
8. Counterparts. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such
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counterparts shall together constitute one and the same agreement, and all
signatures need not appear on any one counterpart.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Keep Well
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first above written.
AMERIGAS PROPANE, L.P.
By: AmeriGas Propane, Inc.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President -- Law
COLUMBIA PROPANE CORPORATION
By: /s/ Xxxxxx X. Rominieki
-------------------------------------
Name: Xxxxxx X. Rominieki
Title: V.P. CFO
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