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FIRST AMENDMENT TO REFUNDING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO REFUNDING CREDIT AGREEMENT (this
"AMENDMENT") dated as of June 30, 2000 among Cornerstone Propane, L.P., a
Delaware limited partnership (the "BORROWER"), the undersigned financial
institutions (each a "LENDER" and together constituting the "REQUIRED
LENDERS", as said terms are defined in the Credit Agreement referred to
below) and Bank of America, N.A. (formerly Bank of America National Trust and
Savings Association), as agent for the Lenders as are or may become parties
to said Credit Agreement (in such capacity, the "AGENT").
R E C I T A L S
The Borrower is a party to a Refunding Credit Agreement dated as of
November 20, 1998 with the Agent and the Lenders party thereto (as amended,
supplemented or otherwise modified to the date hereof, the "CREDIT
AGREEMENT"). Capitalized terms used but not defined herein shall have the
respective meanings given such terms in the Credit Agreement.
The Borrower has requested the Agent and the Lenders currently
parties to the Credit Agreement, as provided in Section 11.1 thereof, to
effect certain amendments of the Credit Agreement as more fully herein below
set forth and in fulfillment of the condition set forth in Section 2.1(b)
hereof, NOR has indicated its willingness to enter into a certain Guaranty
Agreement of even date herewith in favor of the Agent, for the benefit of the
Agent and the Lenders from time to time parties to the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
AMENDMENTS OF CREDIT AGREEMENT
Section 1.1 AMENDMENT OF PREAMBLE. On the terms of this Amendment and subject
to the satisfaction of the conditions precedent set forth below in
Article II, the preamble of the Credit Agreement is hereby amended
to read in its entirety as follows:
"This REFUNDING CREDIT AGREEMENT (as the same may be amended,
supplemented or otherwise modified from time to time, this
"AGREEMENT"), dated as of November 20, 1998, among CORNERSTONE
PROPANE, L.P., a Delaware limited partnership (the
"BORROWER"), the various financial institutions or other
Persons as are or may become parties hereto pursuant to
Section 11.11.1 or 11.11.3 hereof (collectively, the
"LENDERS"), and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION ("BOFA"), as agent (the "AGENT") for the Lenders."
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Section 1.2 AMENDMENTS OF SECTION 1.1. On the terms of this Amendment and
subject to the satisfaction of the conditions precedent set forth
below in Article II:
(A) The definition of "Consolidated Interest Expense" set forth in Section 1.1
of the Credit Agreement is hereby amended to read in its entirety as
follows:
"`CONSOLIDATED INTEREST EXPENSE' means, for any
period, the aggregate consolidated interest expense of the Borrower and the
Restricted Subsidiaries determined in accordance with GAAP but including,
without duplication, (a) all commissions, discounts and other fees and
charges owed with respect to letters of credit and banker's acceptances for
such period, (b) net costs under Interest Rate Agreements for such period,
(c) the Synthetic Lease Interest Component of the Borrower and the Restricted
Subsidiaries for such period, (d) the portion of any Capitalized Lease
Liabilities allocable to consolidated interest expense for such period and
(e) the product of (1) the amount of all dividends (whether in cash or
otherwise (except dividends payable solely in shares of Qualified Capital
Stock)) on all Disqualified Stock of such Person and its Subsidiaries, times
(2) a fraction, the numerator of which is one and the denominator of which is
one minus the then current effective consolidated federal, state and local
income tax rate of such Person, expressed as a decimal; provided, however,
that "Consolidated Interest Expense" shall not include during any period any
out-of-pocket fees or expenses of the Borrower incurred in connection with
that certain First Amendment to Refunding Credit Agreement, dated as of June
30, 2000, among the Borrower, the Lenders and the Agent."
(B) Section 1.1 of the Credit Agreement is hereby amended by inserting
therein, in its proper alphabetical order, an additional definition to
read in its entirety as follows:
"`GUARANTY AGREEMENT' means the Guaranty Agreement, dated as
of June 30, 2000 by NOR in favor of the Agent."
(C) The definition of "Loan Document" set forth in Section 1.1 of the Credit
Agreement is hereby amended to read in its entirety as follows:
"`LOAN DOCUMENT' means this Agreement, the Notes, the Security
Agreement, the Intercreditor Agreement, the Guaranty and any pledge
agreement, security agreement, guaranty, or mortgage delivered to the
Agent pursuant to this Agreement, as the same may be amended,
supplemented, restated or otherwise modified from time to time;
provided, that the Guaranty Agreement shall not be a Loan Document for
purposes of this Agreement."
(D) Section 1.1 of the Credit Agreement is hereby amended by inserting
therein, in its proper alphabetical order, an additional definition to
read in its entirety as follows:
"`NOR PURCHASE EVENT' means the purchase by NOR of all of the
outstanding Commitments and the Loans under this Agreement and the
provision of cash collateral or the making of other arrangements
satisfactory to the Issuer with respect to outstanding Letters of
Credit, in each case in accordance with Section 2.12(b)(i) or 2.14 of
the Guaranty Agreement."
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Section 1.3 AMENDMENT OF SECTION 8.2.4. On the terms of this Amendment and
subject to the satisfaction of the conditions precedent set forth
below in Article II, Section 8.2.4 of the Credit Agreement is
hereby amended by inserting, at the end of said Section, a new
paragraph to read in its entirety as follows:
"Notwithstanding the foregoing provisions of this SECTION 8.2.4 or any
directly or indirectly appurtenant definition set forth in SECTION 1.1,
so long as the Guaranty Agreement shall be in full force and effect and
NOR (i) is in compliance with all of its material obligations
thereunder and (ii) has not attempted to revoke in writing any of its
obligations thereunder pursuant to Section 2.10 thereof or otherwise:
(A) the "Total Funded Indebtedness to Consolidated Cash Flow
Ratio" as of any relevant date and for the period then ending shall,
for purposes of the foregoing clause (a) of this SECTION 8.2.4, be
computed by subtracting $40,000,000 (or such greater amount as shall
be the applicable "Guarantied Amount" on such date as specified in or
pursuant to the Guaranty Agreement) from the sum of the consolidated
Debt, Capitalized Lease Liabilities and Synthetic Lease Obligations of
the Borrower and the Restricted Subsidiaries (to the extent not
resulting in a negative number); and
(B) the ratio of Consolidated Cash Flow to Consolidated
Interest Expense as of any relevant date and for the period then
ending shall, for purposes of the foregoing clause (b) of this
SECTION 8.2.4, be computed by excluding from the denominator of such
ratio an amount equal to the interest paid during such period on an
amount of such Indebtedness, not less than $40,000,000, equal to the
daily average "Guarantied Amount" from time to time in effect during
such period as specified in or pursuant to the Guaranty Agreement of
Indebtedness of the Borrower and the Restricted Subsidiaries at a rate
equal to (1) to the extent of the average amount of the Loans
outstanding during such period, the interest rates paid during such
period on such Loans under this Agreement and (2) thereafter, the
average of the interest rates paid during such period on the Private
Placement Debt and the Parity Debt.
In the event that (i) the Guaranty Agreement shall cease to be in full
force and effect, (ii) NOR fails to comply with any of its material
obligations under the Guaranty Agreement or (iii) NOR attempts to
revoke in writing any of its obligations under the Guaranty Agreement,
any Default or Event of Default which would have existed under the
Credit Agreement except for the adjustments made pursuant to clauses
(A) and (B) above shall be retroactively reinstated, and the Agent and
the Lenders shall have all of their rights and remedies under the
Credit Agreement, including any rights and remedies arising from a
Default or Event of Default occasioned by a violation of this Section
8.2.4."
Section 1.4 AMENDMENT OF SECTION 9.3(d). On the terms of this Amendment and
subject to the satisfaction of the conditions precedent set forth
below in Article II, Section 9.3(d) of the Credit Agreement is
hereby amended by inserting the following at the end thereof:
"Without limiting the generality of the foregoing, the Borrower
acknowledges and agrees that the rights provided for in the Guaranty
Agreement are in addition to the rights provided for in this Agreement
and the other Loan Documents. In connection with the
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Guaranty Agreement, the Borrower agrees that any amount paid over to
the Agent pursuant to Section 2.08 of the Guaranty Agreement may be
applied by the Agent and the Lenders to principal of the Loans (and
the same shall thereupon be reduced) notwithstanding the Borrower's
intention to pay, or direction to NOR or any other Person to pay, any
other obligation of the Borrower. Any amounts received by the Agent
or the Lenders pursuant to the terms of the Guaranty Agreement shall
be applied to principal of the Loans."
Section 1.5 AMENDMENT OF SECTION 10.9. On the terms of this Amendment and
subject to the satisfaction of the conditions precedent set forth
below in Article II, the last two sentences of Section 10.9 of the
Credit Agreement are hereby amended to read in their entirety as
follows:
"Any successor agent shall have a market capitalization equal to or
greater than $500,000,000; PROVIDED, HOWEVER, that this requirement
shall not apply from and after the occurrence of a NOR Purchase Event.
Notwithstanding the foregoing, (a) BofA may not be removed as the
Agent at the request of the Required Lenders unless BofA shall also
simultaneously be replaced as the Issuer hereunder pursuant to
documentation in form and substance reasonably satisfactory to BofA
and (b) upon any resignation of BofA (or any successor Agent) as the
Agent, BofA (or such successor) shall be deemed to have concurrently
resigned as the Issuer with respect to the issuance of any further
Letters of Credit hereunder (including without limitation the
extension of the expiration of any outstanding Letter of Credit),
and, unless such resignation shall occur concurrently with or after a
NOR Purchase Event, the successor Agent shall be deemed concurrently
appointed as the Issuer (unless the Required Lenders otherwise
agree)."
Section 1.6 ADDITION OF SECTION 10.12. On the terms of this Amendment and
subject to the satisfaction of the conditions precedent set forth
below in Article II, the Credit Agreement is hereby amended by
inserting, as Section 10.12 of the Credit Agreement, a new
provision to read in its entirety as follows:
"Section 10.12 GUARANTY AGREEMENT. Each of the Lenders from time to
time party to this Agreement irrevocably authorizes the Agent, without
the necessity of any notice to or further consent from such Lender, to
accept, on behalf of such Lender, the Guaranty Agreement, and agrees
to be bound by all of the terms and conditions thereof."
Section 1.7 AMENDMENT OF SECTION 11.1. On the terms of this Amendment and
subject to the satisfaction of the conditions precedent set forth
below in Article II, Section 11.1 of the Credit Agreement is hereby
amended by (a) deleting the period at the end of subsection (d) and
substituting "; or" in lieu thereof and (b) inserting, immediately
following such subsection (d), a new subsection (e) to read in its
entirety as follows:
"(e) release NOR from its obligations under the Guaranty
Agreement."
Section 1.8 ADDITION OF SECTION 11.11.3. On the terms of this Amendment and
subject to the satisfaction of the conditions precedent set forth
below in Article II, Section 11.11 of the
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Credit Agreement is hereby amended by inserting, as Section
11.11.3 of the Credit Agreement, a new provision to read in its
entirety as follows:
"Section 11.11.3 ASSIGNMENTS TO NOR. Upon the occurrence of a NOR
Purchase Event, each Lender shall assign and delegate to NOR all of
such Lender's total Loans and Commitments (the date of such assignment
and delegation, the "Assignment Effective Date") pursuant to
documentation satisfactory to such Lender and NOR. From and after the
Assignment Effective Date, (x) NOR shall be deemed automatically to
have become a party hereto and shall be and have the rights and
obligations of a Lender hereunder and under the other Loan Documents,
and (y) each assignor Lender shall be released from its obligations
hereunder and under the other Loan Documents. Upon the Assignment
Effective Date, the Commitments hereunder shall automatically be
reduced to zero and NOR shall have no other obligation to lend, issue
Letters of Credit or otherwise extend financial accommodations to the
Borrower, although NOR may, in its sole discretion, do so if it so
elects. In no event shall NOR have any obligation to indemnify the
Agent under Section 10.7 hereof for events occurring prior to the
Assignment Effective Date. Upon the Assignment Effective Date, the
Borrower agrees for the benefit of NOR that the Borrower shall take
all action necessary or appropriate pursuant to this Agreement, the
Intercreditor Agreement and the other Loan Documents to reflect the
NOR Purchase Event including, without limitation, (a) issuing new
Notes payable to NOR, and (b) delivery to the Trustee of the
certificates contemplated by Section 6 of the Intercreditor Agreement
to ensure that NOR is recognized by the Trustee as a holder of Parity
Debt and a Parity Lender thereunder for purposes of Section 4 of the
Intercreditor Agreement."
Section 1.9 ADDITION OF SECTION 11.16. On the terms of this Amendment and
subject to the satisfaction of the conditions precedent set forth
below in Article II, the Credit Agreement is hereby amended by
inserting, as Section 11.16 of the Credit Agreement, a new
provision to read in its entirety as follows:
"Section 11.16 AMENDMENT OF INTERCREDITOR AGREEMENT. So long as the
Guaranty Agreement remains in effect, each of the Borrower, the Agent
and the Lenders hereby agrees that it will not, without the prior
written consent of NOR, amend or otherwise modify the Intercreditor
Agreement in any manner which would adversely affect the rights of
NOR, in the event that NOR shall hold any Loans on the date of any
distribution payable in respect of Parity Debt under Section 4 of the
Intercreditor Agreement (as said Agreement is in effect on June 30,
2000), to receive the portion of such distribution allocable to the
Loans so held by NOR."
ARTICLE II
CONDITIONS PRECEDENT
Section 2.1 CONDITIONS TO EFFECTIVENESS OF ARTICLE I AMENDMENTS. The amendments
set forth in Article I of this Amendment shall become effective on
the date (the "AMENDMENT EFFECTIVE DATE") which is the first date
on which all of the following conditions precedent shall have been
satisfied, and when effective, shall take effect as of June 30,
2000, regardless of whether the Amendment Effective Date occurs
prior to, on or after such date:
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(a) The Agent shall have received, on behalf of the Lenders, this Amendment,
duly executed and delivered by or on behalf of the Borrower, the Agent
and the Required Lenders under the Credit Agreement.
(b) The Agent shall have received, on behalf of the Lenders, the Guaranty
Agreement, duly executed and delivered by NOR.
(c) The Agent shall have received, on behalf of the Lenders, copies of
partnership authorizations for the Borrower and resolutions of the board
of directors of each of the Managing General Partner, the Restricted
Subsidiaries and NOR authorizing and ratifying the transactions
contemplated hereby, certified by the Secretary or an Assistant
Secretary of such Person.
(d) The Agent shall have received, on behalf of the Lenders, the opinion of
(i) McCutchen, Doyle, Brown & Enersen, LLP, special counsel for the
Borrower and (ii) Andrews & Kurth L.L.P., special counsel for NOR and of
Eric R. Jacobsen, Vice President and General Counsel of NOR (it being
understood that said special counsel and Mr. Jacobsen may apportion the
coverage of their respective opinions in a manner customary for external
and internal counsel in financing transactions); in each case in form
and substance satisfactory to the Agent.
(e) Each of the representations and warranties set forth in this Amendment
shall be true and correct on a date when all other conditions set forth
in Sections 2(a) through 2(d), inclusive, shall have been satisfied.
(f) The Agent shall have received, for the account of each Lender, a
non-refundable amendment fee in an amount equal to 0.6875% of the
Commitments of such Lender (without regard to usage). Such amendment
fees shall be fully earned and nonrefundable on the Amendment Effective
Date. The Agent shall have also received, for its own account, a
separate amendment fee pursuant to a letter agreement, dated the date
hereof, between the Agent and the Borrower.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 THE BORROWER'S REPRESENTATIONS AND WARRANTIES. In order to induce
the Agent and the Lenders to enter into this Amendment and to amend
the Credit Agreement in the manner provided in this Amendment, the
Borrower represents and warrants to the Agent and each Lender as
of the date of this Amendment as follows:
(a) POWER AND AUTHORITY. The Borrower 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
Credit Agreement as amended by this Amendment (hereafter referred to as
the "AMENDED CREDIT AGREEMENT").
(b) AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment by the Borrower, and the performance of the Amended Credit
Agreement by the Borrower have
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been duly authorized by all necessary partnership action, and this
Amendment has been duly executed and delivered on behalf of the
Borrower.
(c) ENFORCEABILITY. The Amended Credit Agreement constitutes the legal,
valid and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its terms, except as enforceability may be
limited by (a) applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, fraudulent transfer or other similar
laws relating to or affecting the rights of creditors generally, (b)
general principles of equity (regardless of whether considered in a
proceeding in equity or at law), including, without limitation (i) the
possible unavailability of specific performance, injunctive relief or
any other equitable remedy, and (ii) concepts of materiality,
reasonableness, good faith and fair dealing, and (c) rights of
indemnification or contribution being limited by Federal and state
securities laws and the public policy underlying such laws.
(d) NO CONFLICT. The execution and delivery by the Borrower of this
Amendment and the performance by the Borrower of the Amended Credit
Agreement do not and will not (i) contravene, in any material respect,
any provision of any law, regulation, decree, ruling, judgment or order
that is applicable to the Borrower or its properties or other assets,
(ii) result in a breach of or constitute a default under the certificate
of limited partnership or partnership agreement of the Borrower or any
material agreement, indenture, lease or instrument binding upon it, or
its properties or other assets or (iii) result in the creation or
imposition of any Liens on its properties other than as permitted under
the Credit Agreement.
(e) GOVERNMENTAL CONSENTS. No authorization or approval or other action by,
and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and
performance by the Borrower of this Amendment.
(f) REPRESENTATIONS AND WARRANTIES IN THE CREDIT AGREEMENT. The Borrower
confirms that, as of the Amendment Effective Date and after giving
effect to this Amendment and the Guaranty Agreement, (i) the
representations and warranties contained in Article VII of the Credit
Agreement are true and correct in all material respects, except to the
extent any such representation and warranty is expressly stated to have
been made as of a specific date, in which case it shall be true and
correct as of such specific date and (ii) no Default or Event of Default
has occurred and is continuing.
(g) RESTRICTED SUBSIDIARIES. As of the date of this Amendment, the Borrower
has no Restricted Subsidiaries other than Cornerstone Holding and Flame.
ARTICLE IV
MISCELLANEOUS
Section 4.1 COUNTERPARTS; NOTICE OF EFFECTIVENESS. This Amendment may be
executed by the Borrower and the Required Lenders in any number of
counterparts, all of which shall constitute together but one and
the same agreement, and any such person may become a party hereto
by executing any such counterpart. The Agent shall give written
notice of the
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occurrence of the Amendment Effective Date to the Borrower, the
Lenders and NOR in the manner specified in Section 11.2 of the
Credit Agreement; PROVIDED, HOWEVER, that the failure to so notify
shall not impair the effectiveness of this Amendment.
Section 4.2 RATIFICATION OF CREDIT AGREEMENT. The Credit Agreement, as amended
by this Amendment (including, without limitation, Section 11.3(a)
thereof as applied to the transactions contemplated hereby), is
hereby ratified and confirmed in all respects.
Section 4.3 GOVERNING LAW. This Amendment shall be deemed to be a contract made
under and governed by the internal laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
CORNERSTONE PROPANE, L.P.
By: CORNERSTONE PROPANE GP, INC.,
its Managing General Partner
By: ________________________________
Name: ________________________________
Title: ________________________________
BANK OF AMERICA, N.A., as Agent for the Lenders
By: ________________________________
Name: ________________________________
Title: ________________________________
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BANK OF AMERICA, N.A.
By: ________________________________
Name: ________________________________
Title: ________________________________
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UNION BANK OF CALIFORNIA, N.A.
By: ________________________________
Name: ________________________________
Title: ________________________________
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FLEET NATIONAL BANK
By: ________________________________
Name: ________________________________
Title: ________________________________
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FIRST UNION NATIONAL BANK
By: ________________________________
Name: ________________________________
Title: ________________________________
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THE BANK OF NOVA SCOTIA
By: ________________________________
Name: ________________________________
Title: ________________________________
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CREDIT AGRICOLE INDOSUEZ
By: ________________________________
Name: ________________________________
Title: ________________________________
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Each of the undersigned hereby acknowledges and consents to the foregoing First
Amendment to Refunding Credit Agreement, reaffirms the terms of its Guaranty in
favor of the Trustee and acknowledges that such Guaranty remains in full force
and effect in accordance with its terms.
Dated: ________________ CORNERSTONE HOLDING CORP.
By: ________________________________
Name: ________________________________
Title: ________________________________
FLAME, INC.
By: ________________________________
Name: ________________________________
Title: ________________________________
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