Exhibit 10.42





Exhibit 10.42




EXECUTION COPY




CREDIT AGREEMENT




Dated as of November 6, 2006




among




AMERIGAS PROPANE, L.P.,

as Borrower,




AMERIGAS PROPANE, INC.,

as a Guarantor,




PETROLANE INCORPORATED,

as a Guarantor,




CITIGROUP GLOBAL MARKETS INC.,

as Syndication Agent,




J.P. MORGAN SECURITIES INC., and CREDIT SUISSE SECURITIES (USA) LLC

as Co-Documentation Agents,




WACHOVIA BANK, NATIONAL ASSOCIATION,

as Agent, Issuing Bank and Swing Line Bank,

and




THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO




WACHOVIA CAPITAL MARKETS, LLC,

and

CITIGROUP GLOBAL MARKETS INC

Joint Lead Arrangers and Joint Bookrunners



 


 









 





TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE I DEFINITIONS
	 	 	1	 
	Section 1.1 Certain Defined Terms
	 	 	1	 
	Section 1.2 Other Interpretive Provisions
	 	 	29	 
	Section 1.3 Accounting Principles
	 	 	30	 
	 
	 	 	 	 
	ARTICLE II THE CREDITS
	 	 	30	 
	Section 2.1 Amounts and Terms of Commitments
	 	 	30	 
	Section 2.2 Loan Accounts
	 	 	31	 
	Section 2.3 Procedure for Borrowing
	 	 	32	 
	Section 2.4 Conversion and Continuation Elections
	 	 	33	 
	Section 2.5 Voluntary Termination or Reduction of Commitments
	 	 	34	 
	Section 2.6 Optional Prepayments
	 	 	34	 
	Section 2.7 Mandatory Prepayments of Loans; Mandatory Commitment Reductions
	 	 	35	 
	Section 2.8 Repayment
	 	 	35	 
	Section 2.9 Interest
	 	 	36	 
	Section 2.10 Fees
	 	 	37	 
	Section 2.11 Computation of Fees and Interest
	 	 	37	 
	Section 2.12 Payments by the Borrower
	 	 	37	 
	Section 2.13 Payments by the Banks to the Agent, etc.
	 	 	38	 
	Section 2.14 Sharing of Payments, etc.
	 	 	39	 
	Section 2.15 Revolving Termination Date
	 	 	39	 
	Section 2.16 Swing Line Loans
	 	 	40	 
	 
	 	 	 	 
	ARTICLE III THE LETTERS OF CREDIT
	 	 	43	 
	Section 3.1 The Letter of Credit Subfacility
	 	 	43	 
	Section 3.2 Issuance, Amendment and Renewal of Letters of Credit
	 	 	44	 
	Section 3.3 Risk Participations, Drawings and Reimbursements
	 	 	46	 
	Section 3.4 Repayment of Participations
	 	 	47	 
	Section 3.5 Role of the Issuing Bank
	 	 	47	 
	Section 3.6 Obligations Absolute
	 	 	48	 
	Section 3.7 Cash Collateral Pledge
	 	 	49	 
	Section 3.8 Letter of Credit Fees
	 	 	49	 
	Section 3.9 Applicability of ISP98 and UCP
	 	 	50	 
	Section 3.10 Conflict with L/C Application

	 	 	50	 





 


i









 





	 	 	 	 	 
	ARTICLE IV TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	50	 
	Section 4.1 Taxes
	 	 	50	 
	Section 4.2 Illegality
	 	 	51	 
	Section 4.3 Increased Costs and Reduction of Return
	 	 	52	 
	Section 4.4 Funding Losses
	 	 	53	 
	Section 4.5 Inability to Determine Rates
	 	 	54	 
	Section 4.6 Certificates of Banks
	 	 	54	 
	Section 4.7 Substitution of Banks
	 	 	55	 
	Section 4.8 Survival
	 	 	55	 
	 
	 	 	 	 
	ARTICLE V CONDITIONS PRECEDENT
	 	 	55	 
	Section 5.1 Conditions to Effectiveness
	 	 	55	 
	Section 5.2 Conditions to All Borrowings
	 	 	57	 
	 
	 	 	 	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES
	 	 	58	 
	Section 6.1 Organization, Standing, etc.
	 	 	58	 
	Section 6.2 Partnership Interests and Subsidiaries
	 	 	58	 
	Section 6.3 Qualification; Corporate or Partnership Authorization
	 	 	58	 
	Section 6.4 Financial Statements
	 	 	59	 
	Section 6.5 Changes, etc.
	 	 	59	 
	Section 6.6 Tax Returns and Payments
	 	 	59	 
	Section 6.7 Indebtedness
	 	 	60	 
	Section 6.8 Transfer of Assets and Business
	 	 	60	 
	Section 6.9 Litigation, etc.
	 	 	60	 
	Section 6.10 Compliance with Other Instruments, etc.
	 	 	60	 
	Section 6.11 Governmental Consent
	 	 	61	 
	Section 6.12 Investment Company Act
	 	 	61	 
	Section 6.13 [Reserved]
	 	 	61	 
	Section 6.14 [Reserved]
	 	 	61	 
	Section 6.15 Matters Relating to Petrolane
	 	 	61	 
	Section 6.16 Matters Relating to the General Partner
	 	 	62	 
	Section 6.17 ERISA Compliance
	 	 	62	 
	Section 6.18 Use of Proceeds; Margin Regulations
	 	 	62	 
	Section 6.19 Environmental Warranties
	 	 	62	 
	Section 6.20 Copyrights, Patents, Trademarks and Licenses, etc.
	 	 	64	 
	Section 6.21 Insurance
	 	 	64	 
	Section 6.22 Full Disclosure
	 	 	64	 
	Section 6.23 Defaults
	 	 	64	 
	Section 6.24 PPD/GP Debt Contributions
	 	 	64	 
	Section 6.25 Foreign Assets Control
	 	 	64	 





 


ii









 





	 	 	 	 	 
	ARTICLE VII AFFIRMATIVE COVENANTS
	 	 	65	 
	Section 7.1 Information
	 	 	65	 
	Section 7.2 Adequate Reserves
	 	 	69	 
	Section 7.3 Partnership or Corporate Existence; Business;
Compliance with Laws
	 	 	70	 
	Section 7.4 Payment of Taxes and Claims
	 	 	70	 
	Section 7.5 Maintenance of Properties: Insurance
	 	 	70	 
	Section 7.6 Guarantors
	 	 	71	 
	Section 7.7 Further Assurances
	 	 	71	 
	Section 7.8 Designations With Respect to Subsidiaries
	 	 	71	 
	Section 7.9 Covenants of the General Partner and Petrolane
	 	 	72	 
	Section 7.10 Books and Records
	 	 	73	 
	Section 7.11 Environmental Covenant
	 	 	73	 
	 
	 	 	 	 
	ARTICLE VIII NEGATIVE COVENANTS
	 	 	74	 
	Section 8.1 Indebtedness
	 	 	74	 
	Section 8.2 Minimum Interest Coverage
	 	 	76	 
	Section 8.3 Liens, etc.
	 	 	76	 
	Section 8.4 Investments, Contingent Obligations, etc.
	 	 	78	 
	Section 8.5 Restricted Payments
	 	 	81	 
	Section 8.6 Transactions with Affiliates
	 	 	81	 
	Section 8.7 Subsidiary Stock and Indebtedness
	 	 	82	 
	Section 8.8 Consolidation, Merger, Sale of Assets, etc.
	 	 	83	 
	Section 8.9 Use of Proceeds
	 	 	86	 
	Section 8.10 Change in Business
	 	 	86	 
	Section 8.11 Accounting Changes
	 	 	86	 
	Section 8.12 Clean Down
	 	 	86	 
	Section 8.13 Receivables
	 	 	86	 
	Section 8.14 Leverage Ratio
	 	 	87	 
	Section 8.15 Minimum Consolidated EBITDA
	 	 	87	 
	Section 8.16 Acquisitions
	 	 	87	 
	Section 8.17 Limitation on Restricted Agreements
	 	 	87	 
	Section 8.18 AEPLP
	 	 	88	 
	 
	 	 	 	 
	ARTICLE IX EVENTS OF DEFAULT
	 	 	90	 
	Section 9.1 Event of Default
	 	 	90	 
	Section 9.2 Remedies
	 	 	93	 
	Section 9.3 Rights Not Exclusive
	 	 	93	 
	Section 9.4 Application of Funds
	 	 	94	 





 


iii









 





	 	 	 	 	 
	ARTICLE X THE AGENT
	 	 	94	 
	Section 10.1 Appointment and Authorization
	 	 	94	 
	Section 10.2 Delegation of Duties
	 	 	95	 
	Section 10.3 Liability of Agent
	 	 	95	 
	Section 10.4 Reliance by Agent
	 	 	95	 
	Section 10.5 Notice of Default
	 	 	96	 
	Section 10.6 Credit Decision
	 	 	96	 
	Section 10.7 Indemnification
	 	 	97	 
	Section 10.8 Agent in Individual Capacity
	 	 	97	 
	Section 10.9 Successor Agent
	 	 	97	 
	Section 10.10 Agent May File Proofs of Claim
	 	 	98	 
	Section 10.11 Collateral and Guaranty Matters
	 	 	98	 
	Section 10.12 Other Agents; Arrangers and Managers
	 	 	99	 
	Section 10.13 Withholding Tax
	 	 	99	 
	 
	 	 	 	 
	ARTICLE XI GUARANTEE
	 	 	101	 
	Section 11.1 Each Guaranteed Obligation
	 	 	101	 
	Section 11.2 Obligations Exclusive
	 	 	101	 
	Section 11.3 Obligations Independent
	 	 	101	 
	Section 11.4 Waiver of Notice
	 	 	101	 
	Section 11.5 Guarantee of Payment
	 	 	102	 
	Section 11.6 Obligations Unconditional
	 	 	103	 
	Section 11.7 Continuing Guarantee
	 	 	103	 
	Section 11.8 Subordination
	 	 	103	 
	Section 11.9 Exhaustion of Remedies
	 	 	104	 
	Section 11.10 Reinstatement
	 	 	105	 
	 
	 	 	 	 
	ARTICLE XII MISCELLANEOUS
	 	 	106	 
	Section 12.1 Amendments and Waivers
	 	 	106	 
	Section 12.2 Notices and Other Communications; Facsimile Copies
	 	 	107	 
	Section 12.3 No Waiver; Cumulative Remedies
	 	 	108	 
	Section 12.4 Costs and Expenses
	 	 	108	 
	Section 12.5 Indemnity
	 	 	109	 
	Section 12.6 Liability
	 	 	109	 
	Section 12.7 Payments Set Aside
	 	 	111	 
	Section 12.8 Successors and Assigns
	 	 	111	 
	Section 12.9 Assignments, Participations. etc.
	 	 	111	 
	Section 12.10 Confidentiality
	 	 	113	 
	Section 12.11 Set-off
	 	 	114	 





 


iv









 





	 	 	 	 	 
	Section 12.12 Notification of Addresses; etc.
	 	 	114	 
	Section 12.13 Counterparts
	 	 	115	 
	Section 12.14 Severability
	 	 	115	 
	Section 12.15 No Third Parties Benefited
	 	 	115	 
	Section 12.16 Governing Law and Jurisdiction
	 	 	115	 
	Section 12.17 Waiver of Jury Trial
	 	 	116	 
	Section 12.18 Entire Agreement
	 	 	116	 
	Section 12.19 Interest Rate Limitation
	 	 	116	 
	Section 12.20 Survival of Representations and Warranties
	 	 	117	 
	Section 12.21 Patriot Act
	 	 	117	 






Schedules




	 	 	 
	Schedule 2.1

	 	Commitments and Percentages
	Schedule 3.1(a)

	 	Existing Letters of Credit
	Schedule 6.2

	 	Partnership Interests; Subsidiaries; Restricted
Subsidiaries; Other Investments
	Schedule 6.3

	 	Foreign Qualifications
	Schedule 6.7

	 	Permitted Indebtedness
	Schedule 6.8(a)

	 	Permits and Consents
	Schedule 6.9

	 	Litigation
	Schedule 6.19

	 	Environmental Liabilities
	Schedule 6.20

	 	Copyrights, Patents, Trademarks and Licenses, Etc.
	Schedule 12.2

	 	Agent’s Payment Office; Addresses for Notices






Exhibits




	 	 	 
	Exhibit A-1

	 	Notice of Borrowing (Swing Line Loans)
	Exhibit A-2

	 	Notice of Borrowing (Revolving Loans/Acquisition Loans)
	Exhibit B

	 	Notice of Conversion/ Continuation
	Exhibit C

	 	Form of Commitment Termination Date Extension Request
	Exhibit D

	 	Form of Compliance Certificate
	Exhibit E

	 	Form of Assignment and Acceptance Agreement
	Exhibit F-1

	 	Form of Promissory Note (Acquisition Loans)
	Exhibit F-2

	 	Form of Promissory Note (Revolving Loans)
	Exhibit G

	 	Form of Subordination Provisions





 


 









 





CREDIT AGREEMENT




This CREDIT AGREEMENT (as the same may be amended, supplemented, assigned or otherwise
modified from time to time in accordance with the terms hereof, this “Agreement”), dated as of
November 6, 2006, among AMERIGAS PROPANE, L.P., a Delaware limited partnership (the “Borrower”),
AMERIGAS PROPANE, INC., a Pennsylvania corporation (the “General Partner”), PETROLANE
INCORPORATED, a Pennsylvania corporation (“Petrolane”; the General Partner and Petrolane are, on a
joint and several basis, the “Guarantors”; the Borrower, the General Partner and Petrolane are, on
a joint and several basis, the “Obligors”), CITIGROUP GLOBAL MARKETS INC., as Syndication Agent,
J.P. MORGAN SECURITIES INC., and CREDIT SUISSE SECURITIES (USA) LLC, as CoDocumentation Agents,
the several financial institutions from time to time party to this Agreement (collectively, the
“Banks”; individually, a “Bank”) and WACHOVIA BANK, NATIONAL ASSOCIATION, as administrative agent
for the Banks (the “Agent”), issuing bank and swing line bank.



WHEREAS, the Obligors have requested that (i) the $100,000,000 of Revolving Commitments under
(and as defined in) the Existing Credit Agreement and the related Revolving Loans outstanding
under (and as defined in) the Existing Credit Agreement be terminated and replaced with the
$125,000,000 of Revolving Commitments and Revolving Loans under this Agreement, the proceeds of
which are to be used by the Borrower for working capital and general purposes of the Borrower;
(ii) the $75,000,000 of Acquisition Commitments under (and as defined in) the Existing Credit
Agreement and the related Acquisition Loans and Specified Acquisition Loans outstanding under (and
as defined in) the Existing Credit Agreement be terminated and replaced with the $75,000,000 of
Acquisition Commitments and Acquisition Loans and Specified Acquisition Loans under this
Agreement, the proceeds of which are to be used by the Borrower to finance acquisitions, or with
respect to Specified Acquisition Loans, for working capital and general purposes of the Borrower
and (iii) the Existing Credit Agreement otherwise be paid in full and the commitments thereunder
be terminated; and



WHEREAS, the Banks are willing, on the terms and subject to the conditions set forth in this
Agreement, to enter into, and to extend credit under, this Agreement as more particularly
hereinafter set forth.



NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained
herein, the parties agree as follows:



ARTICLE 1 DEFINITIONS




1.1 Certain Defined Terms. The following terms have the following meanings:



“Acquired Debt” means with respect to any specified Person, (i) Indebtedness of any other
Person existing at the time such other Person merged with or into or became a Subsidiary of such
specified Person, including Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a Subsidiary of such
specified Person and (ii) Indebtedness encumbering any asset acquired by such specified Person.


 


- 1 -









 





“Acquisition” means, as to any Person, any acquisition or investment by such Person, whether
by means of (a) the purchase or other acquisition of capital stock or other securities of another
Person, (b) a loan, advance or capital contribution to, guaranty of debt of, or purchase or other
acquisition of any other debt or equity participation or interest in, another Person, including
any partnership or joint venture interest in such other Person, or (c) an Asset Acquisition.



“Acquisition Commitment” has the meaning specified in Section 2.1(a).



“Acquisition Loan” has the meaning specified in Section 2.1(a).



“AEPH” means AmeriGas Eagle Holdings, Inc. (formerly CP Holdings, Inc.), a Delaware
corporation.



“AEPT’ means AmeriGas Eagle Propane, Inc. (formerly Columbia Propane Corporation), a Delaware
corporation.



“AEPLP” means AmeriGas Eagle Propane, L.P. (formerly Columbia Propane, L.P.), a Delaware
limited partnership.



“AEPLP Acquisitions” has the meaning specified in Section 8.16.



“AEPLP Available Date” means the earliest of (i) 180 days after the expiration of the Debt
Indemnity provided under the National Propane Purchase Agreement, (ii) the purchase by AEPLP of
the partnership interest of the Special Limited Partner (as defined in the AEPLP Partnership
Agreement) in AEPLP pursuant to the Special Limited Partner’s put option under Section 4.5 of the
AEPLP Partnership Agreement and (iii) the purchase by AEPLP of the partnership interest of the
Special Limited Partner in AEPLP pursuant to AEPLP’s call option under Section 4.5 of the AEPLP
Partnership Agreement.



“AEPLP Guaranty Date” has the meaning specified in Section 8.18.



“AEPLP Partnership Agreement” means that certain Amended and Restated Agreement of Limited
Partnership of National Propane, L.P. (renamed AEPLP), dated as of July 19, 1999, by and among
AEPI, AEPH, and National Propane Corporation, as amended, supplemented, or otherwise modified from
time to time.



“AEPLP Subsidiary Guaranty” has the meaning specified in Section 8.18.



“AEPLP Taxes” means all federal, state, local or foreign taxes, governmental fees or like
charges of any kind whatsoever, whether disputed or not.



“Affected Bank” has the meaning specified in Section 4.7.


 


- 2 -









 





“Affiliate” means, as to any Person, any other Person which, directly or indirectly, is in
control of, is controlled by, or is under common control with, such Person. A Person shall be
deemed to control another Person if the controlling Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, by contract, or otherwise.



“Agent” means Wachovia in its capacity as administrative agent for the Banks hereunder, and
any successor agent arising under Section 10.9.



“Agent-Related Persons” means the Agent, together with its Affiliates (including, in the case
of Wachovia in its capacity as the Agent, the Arranger), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.



“Agent’s Payment Office” means the address for payments set forth on Schedule
12.2 hereto in relation to the Agent, or such other address as the Agent may from time to
time specify by written notice to the Borrower and the Banks.



“Agreement” has the meaning specified in the introductory clause hereto.



“AmeriGas Eagle Parts & Service” means AmeriGas Eagle Parts & Service, Inc., a Pennsylvania
corporation.



“Annual Limit” has the meaning specified in Section
8.4(c). “Applicable Margin” means



(i) with respect to Base Rate Loans, 0%; and



(ii) with respect to Eurodollar Rate Loans, the applicable margin set forth below at such
time as a Pricing Tier (the “Pricing Tier”) set forth below is applicable:



	 	 	 	 	 	 	 
	Pricing Tier	 	Funded Debt Ratio	 	Margin	 
	 	 	 
	 	 	 	 
	I	 	Less than or equal to 2.50x
	 	 	1.00	%
	 	 	 
	 	 	 	 
	II	 	Greater than 2.50x but less
than or equal to 3.OOx
	 	 	1.25	%
	 	 	 
	 	 	 	 
	III	 	Greater than 3.OOx but less
than or equal to 3.50x
	 	 	1.50	%
	 	 	 
	 	 	 	 
	IV	 	Greater than 3.50x
	 	 	1.75	%





 


- 3 -









 





For the purpose of determining the applicable Pricing Tier above and subject to the last sentence
of this paragraph, EBITDA shall be determined as at the end of each fiscal quarter for the four
fiscal quarters then ending and Funded Debt shall be determined as at the end of each fiscal
quarter for which such calculation is being determined. Pricing changes shall be effective on the
later of (i) 45 days after the end of each of the first three fiscal quarters of each fiscal year
and 90 days after each fiscal year end and (ii) the Agent’s receipt of financial statements
hereunder for such fiscal quarter or fiscal year; provided, however, that if the
financial statements are not delivered when due in accordance with Section 7.1, then
Pricing Tier IV shall apply as of the first Business Day after the date on which such financial
statements were required to have been delivered until the date upon which such financial statements
are delivered to the Agent. For the period from the Closing Date through December 31, 2006, the
applicable Pricing Tier shall be Pricing Tier I.



“Arrangers” means Wachovia Capital Markets, LLC and Citigroup Global Markets Inc.



“Asset Acquisition” means (a) an Investment by the Borrower or any Restricted Subsidiary in
any other Person pursuant to which such Person shall become a Restricted Subsidiary or shall be
merged with or into the Borrower or any Restricted Subsidiary, (b) the acquisition by the Borrower
or any Restricted Subsidiary of the assets of any Person (other than a Restricted Subsidiary) which
constitute all or substantially all of the assets of such Person or (c) the purchase or other
acquisition by the Borrower or any Restricted Subsidiary (in one or a series of transactions) of
any division or line of business of any Person (other than a Restricted Subsidiary).



“Asset Sale” has the meaning specified in Section 8.8(c).



“Assets” means the assets owned by, licensed to, leased or otherwise used in the business by
the Borrower and its Subsidiaries.



“Assignee” has the meaning specified in Section 12.9(a).



“Attorney Costs” means and includes all reasonable fees and disbursements of any law firm or
other external counsel, the reasonable allocated cost of internal legal services and all reasonable
disbursements of internal counsel.



“Auto-Renewal Letter of Credit” has the meaning specified in Section 3.2(d).



“Available Cash” as to any calendar quarter means



(a) the sum of (i) all cash of the Borrower and the Restricted Subsidiaries on hand at the end
of such quarter and (ii) all additional cash of the Borrower and the Restricted Subsidiaries on
hand on the date of determination of Available Cash with respect to such quarter resulting from
borrowings subsequent to the end of such quarter, less



(b) the amount of cash reserves that is necessary or appropriate in the reasonable discretion
of the General Partner to (i) provide for the proper conduct of the business of the Borrower and
the Restricted Subsidiaries (including reserves for future capital expenditures) subsequent to such
quarter, (ii) provide funds for distributions under Sections 5.3(a), (b) and (c) or 5.4(a) of the
partnership agreement of the Public Partnership (such Sections as in effect on the Closing Date,
together with all related definitions, being hereby incorporated herein in the form included in
such partnership agreement on the Closing Date and
without regard to any subsequent amendments or waivers of the provisions of, or any termination
of, such partnership agreement) in respect of any one or more of the next four quarters, or (iii)
comply with applicable law or any debt instrument or other agreement or obligation to which the
Borrower or any Restricted Subsidiary is a party or its assets are subject; provided,
however, that Available Cash attributable to any Restricted Subsidiary shall be excluded
to the extent dividends or distributions of such Available Cash by such Restricted Subsidiary are
not at the date of determination permitted by the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or other regulation.


 


- 4 -









 





In addition, without limiting the foregoing, Available Cash shall reflect a reserve equal to
50% of the interest to be paid on the First Mortgage Notes and the Acquisition Loans in the next
fiscal quarter and, beginning with a date three fiscal quarters before a scheduled principal
payment date on the First Mortgage Notes, the Revolving Loans or the Acquisition Loans, 25% of the
aggregate principal amount thereof due on any such payment date in the third succeeding fiscal
quarter, 50% of the aggregate principal amount due on any such quarterly payment date in the
second succeeding fiscal quarter and 75% of the aggregate principal amount due on any quarterly
payment date in the next succeeding fiscal quarter on such notes and facilities. The foregoing
reserves for principal amounts to be paid shall be reduced by the aggregate amount of advances
available to the Borrower from responsible financial institutions under binding, irrevocable
credit facility commitments (and which are subject to no conditions which the Borrower is unable
to meet) and letters of credit to be used to refinance such principal (so long as no repayment
obligations under such credit facilities and no reimbursement obligation with respect to any such
letter of credit would come due within three quarters).



“Average Consolidated Pro Forma Debt Service” means as of any date of determination, the
average amount payable by the Borrower and the Restricted Subsidiaries on a consolidated basis
during all periods of four consecutive calendar quarters, commencing with the calendar quarter in
which such date of determination occurs and ending December 31, 2011, in respect of scheduled
interest (but not principal) payments with respect to all Indebtedness of the Borrower and the
Restricted Subsidiaries outstanding on such date of determination, after giving effect to any
Indebtedness proposed on such date to be incurred and to the substantially concurrent repayment of
any other Indebtedness (a) including actual payments of Capitalized Lease Liabilities, (b)
assuming, in the case of Indebtedness (other than Indebtedness referred to in clause (c)
below) bearing interest at fluctuating interest rates which cannot be determined in advance, that
the rate actually in effect on such date will remain in effect throughout such period, and (c)
including only actual interest payments associated with the Indebtedness incurred pursuant to
Section 8.1(e) during the most recent four consecutive calendar quarters.



“Bank” has the meaning specified in the introductory clause hereto.



“Bankruptcy Code” means the Federal Bankruptcy Reform Act of 1978, as amended (11 U.S.C. §
101, et seq.).



“Base Rate” means for any day a fluctuating rate per annum equal to the higher of (a) the
Federal Funds Rate plus 1 /2 of 1% and (b) Prime Rate.



“Base Rate Loan” means a Loan that bears interest based on the Base Rate.


 


- 5 -









 





“Borrower” has the meaning specified in the introductory clause hereto.



“Borrower Financials” has the meaning specified in Section 7.1.



“Borrower’s Account” means the account maintained by the Borrower with Mellon Bank, N.A. and
designated as account number 094-0764 or such other account designated by the Borrower in writing.



“Borrowing” means a borrowing hereunder consisting of Loans of the same Type made to the
Borrower on the same day by the Banks (or in the case of Swing Line Loans, by the Swing Line Bank)
and, in the case of Eurodollar Rate Loans, having the same Interest Period, in either case under
Article II.



“Borrowing Date” means any date on which a Borrowing occurs under Section 2.3.



“Business” means the business of wholesale and retail sales, distribution and storage of
propane gas and related petroleum derivative products and the retail sale of propane related
supplies and equipment, including home appliances.



“Business Day” means any day other than a Saturday, Sunday or other day on which commercial
banks are authorized to close under the laws of, or are in fact closed in, the state where the
Agent’s Payment Office is located and, if such day relates to any Eurodollar Rate Loan, means any
such day on which dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market.



“Capital Adequacy Regulation” means any guideline, request or directive of any central bank or
other Governmental Authority, or any other law, rule or regulation, whether or not having the force
of law, in each case, regarding capital adequacy of any bank or of any corporation controlling a
bank.



“Capital Stock” means with respect to any Person, any and all shares, interests,
participations, rights in or other equivalents (however designated) of such Person’s capital stock,
including, with respect to partnerships and limited liability companies, partnership interests
(whether general or limited) or membership interests and any other interest or participation that
confers upon a Person the right to receive a share of the profits and losses of, or distributions
of assets of, such partnership or limited liability company, and any rights (other than debt
securities convertible into capital stock), warrants or options exchangeable for or convertible
into such capital stock.



“Capitalized Lease Liabilities” means all monetary obligations of the Borrower or any of its
Restricted Subsidiaries under any leasing or similar arrangement which, in accordance with GAAP,
would be classified as capitalized leases, and, for purposes of this Agreement and each other Loan
Document, the amount of such obligations shall be the principal components thereof



“Capped Investments” has the meaning specified in Section 8.18(a).


 


- 6 -









 





“Carryover Threshold” has the meaning specified in Section 8.16,.



“Cash Collateralize” means to pledge and deposit with or deliver to the Agent, for the benefit
of the Agent, the Issuing Bank and the Banks, as collateral for the L/C Obligations, cash or
deposit account balances pursuant to documentation in form and substance reasonably satisfactory to
the Agent and the Issuing Bank (which documents are hereby consented to by the Banks). Derivatives
of such term shall have corresponding meanings.



“Cash Equivalents” has the meaning specified in Section 8.4(a).



“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended.



“Change of Control” means (i) UGI shall fail to own directly or indirectly 100% of the general
partnership interests in the Borrower, or, if the Borrower shall have been converted to a corporate
form, at least 51% of the voting shares of the Borrower; or (ii) UGI shall fail to own directly or
indirectly at least a 30% ownership interest in the Borrower.



“Closing Date” means the date on which all conditions precedent set forth in Section
5.1 are satisfied or waived by the Banks.



“Code” means the Internal Revenue Code of 1986, as amended, and regulations promulgated
thereunder, in each case as in effect from time to time.



“Collateral Agency Agreement” means the Intercreditor and Agency Agreement dated as of April
19, 1995 among the Obligors, the Restricted Subsidiaries, the Agent, the Note Holders (as defined
therein) and the Collateral Agent (as defined therein), as the same may be amended, supplemented,
assigned or otherwise modified from time to time.



“Columbia Acquisition” means the acquisition by the Borrower of the propane distribution
business of Columbia Energy Group, a Delaware corporation, pursuant to the Columbia Purchase
Agreement.



“Columbia Purchase Agreement” means that certain Purchase Agreement, dated as of January 30,
2001, and amended and restated on August 7, 2001 by and among Columbia Energy Group, a Delaware
corporation, AEPI, AEPLP, the Borrower, the Public Partnership and the General Partner, as amended,
supplemented or otherwise modified from time to time.



“Commitment”, as to each Bank, means its Revolving Commitment and its Acquisition Commitment.



“Commitment Letter” shall mean that certain letter, dated July 17 2006, among the Borrower,
the Agent and the Arrangers.



“Commitment Termination Date Extension Request” means a request substantially in the form of
Exhibit C.


 


- 7 -









 





“Compliance Certificate” means a certificate substantially in the form of Exhibit D.



“Consolidated Cash Flow” means with respect to the Borrower and the Restricted Subsidiaries
for any period, (1) the sum of, without duplication, the amounts for such period, taken as a
single accounting period, of (a) Consolidated Net Income, (b) Consolidated Non-Cash Charges, (c)
Consolidated Interest Expense and (d) Consolidated Income Tax Expense less (2) any non-cash items
increasing Consolidated Net Income for such period that had previously been added to Consolidated
Net Income when incurred as a Consolidated Non-Cash Charge. Consolidated Cash Flow shall be
calculated after giving effect, on a pro forma basis for the four full fiscal quarters immediately
preceding the date of the transaction giving rise to the need to calculate Consolidated Cash Flow,
to, without duplication, any Asset Sales or Asset Acquisitions (including without limitation any
Asset Acquisition giving rise to the need to make such calculation as a result of the Borrower or
one of its Restricted Subsidiaries (including any Person who becomes a Restricted Subsidiary as a
result of the Asset Acquisition) incurring, assuming or otherwise being liable for Acquired Debt)
occurring during the period commencing on the first day of such period to and including the date
of the transaction (the “Reference Period”), as if such Asset Sale or Asset Acquisition occurred
on the first day of the Reference Period; provided, however, that Consolidated
Cash Flow generated by an acquired business or asset shall be determined by the actual gross
profit (revenues minus cost of goods sold) of such acquired business or asset during the
immediately preceding four full fiscal quarters in the Reference Period minus the pro forma
expenses that would have been incurred by the Borrower and the Restricted Subsidiaries in the
operation of such acquired business or asset during such period computed on the basis of personnel
expenses for employees retained or to be retained by the Borrower and the Restricted Subsidiaries
in the operation of such acquired business or asset and non-personnel costs and expenses incurred
by the Borrower and the Restricted Subsidiaries in the operation of the Borrower’s business at
similarly situated Borrower facilities or Restricted Subsidiary facilities.



“Consolidated Income Tax Expense” means with respect to the Borrower and the Restricted
Subsidiaries for any period, the provision for federal, state, local and foreign income taxes of
the Borrower and the Restricted Subsidiaries for such period as determined on a consolidated basis
in accordance with GAAP.



“Consolidated Interest Expense” means, with respect to the Borrower and the Restricted
Subsidiaries for any period, without duplication, the sum of (i) the interest expenses of the
Borrower and the Restricted Subsidiaries for such period as determined on a consolidated basis in
accordance with GAAP, including without limitation (a) any amortization of debt discount, (b) the
net cost under Interest Rate Agreements, (c) the interest portion of any deferred payment
obligation, (d) all commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers’ acceptance financing and (e) all accrued interest plus (ii) the
interest component of capital leases paid, accrued or scheduled to be paid or accrued by the
Borrower and the Restricted Subsidiaries during such period as determined on a consolidated basis
in accordance with GAAP.


 


- 8 -









 





“Consolidated Net Income” means the net income of the Borrower and the Restricted
Subsidiaries, as determined on a consolidated basis in accordance with GAAP and as
adjusted to exclude (i) net after-tax extraordinary gains or losses, (ii) net after-tax gains or
losses attributable to Asset Sales, (iii) the net income or loss of any Person which is not a
Restricted Subsidiary and which is accounted for by the equity method of accounting,
provided, that Consolidated Net Income shall include the amount of dividends or
distributions actually paid to the Borrower or any Restricted Subsidiary, (iv) the net income of
any Restricted Subsidiary to the extent that dividends or distributions of such net income are not
at the date of determination permitted by the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or other regulation and (v) the cumulative effect of any
changes in accounting principles.



“Consolidated Net Worth” means, of any Person, at any date of determination, the total
partners’ equity (in the case of a partnership), total stockholders’ equity (in the case of a
corporation) or total membership interests (in the case of a limited liability company) of such
Person at such date, as would be shown on a balance sheet (consolidated, if applicable) of such
Person and, if applicable, its Subsidiaries (Restricted Subsidiaries in the case of the Borrower)
prepared in accordance with GAAP (less, in the case of the Borrower, the Net Amount of
Unrestricted Investment as of such date).



“Consolidated Net Tangible Assets” means, as of any date, (i) the Total Assets, as of such
date, minus (ii) all current liabilities of the Borrower and the Restricted Subsidiaries, as of
such date (other than (A) any current liabilities which are by their terms extendible or renewable
at the option of the obligor thereon to a time more than 12 months after the time as of which the
amount thereof is being computed and (B) current maturities of long term debt), minus (iii) all
goodwill, trade names, trademarks, patents, licenses, purchased technology, unamortized debt
discount and expenses and other like intangible assets of the Borrower and the Restricted
Subsidiaries, as of such date, in each case in clauses (i), (ii) and (iii), as determined on a
consolidated basis in accordance with GAAP.



“Consolidated Non-Cash Charges” means, with respect to the Borrower and the Restricted
Subsidiaries for any period, the aggregate depreciation, amortization and any other non-cash
charges resulting in write downs in non-current assets, in each case reducing Consolidated Net
Income of the Borrower and the Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP.



“Consolidated Pro Forma Debt Service” means as of any date of determination, the total amount
payable by the Borrower and the Restricted Subsidiaries on a consolidated basis during the four
consecutive calendar quarters next succeeding the date of determination, in respect of scheduled
interest (but not principal) payments with respect to Indebtedness of the Borrower and the
Restricted Subsidiaries outstanding on such date of determination, after giving effect to any
Indebtedness proposed on such date to be incurred and to the substantially concurrent repayment of
any other Indebtedness (a) including actual payments of Capitalized Lease Liabilities, (b)
assuming, in the case of Indebtedness (other than Indebtedness referred to in clause (c)
below) bearing interest at fluctuating interest rates which cannot be determined in advance, that
the rate actually in effect on such date will remain in effect throughout such period, and (c)
including only actual interest payments associated with the Indebtedness incurred pursuant to
Section 8.1(e) during the most recent four consecutive calendar quarters.


 


- 9 -









 





“Contingent Obligation” means, as to any Person, any direct or indirect liability of that
Person, whether or not contingent, with or without recourse (otherwise than for collection or
deposit in the ordinary course of business), (a) with respect to any Indebtedness, lease,
dividend, letter of credit or other obligation (the “primary obligations) of another Person (the
“primary obligor”), including any obligation of that Person (i) to purchase, repurchase or
otherwise acquire such primary obligations or any security therefor, (ii) to advance or provide
funds for the payment or discharge of any such primary obligation, or to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the net worth or
solvency or any balance sheet item, level of income or financial condition of the primary
obligor, (iii) to purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation, or (iv) otherwise to assure or hold harmless the holder of
any such primary obligation against loss in respect thereof (each, a “Guaranty Obligation”); (b)
with respect to any Surety Instrument (other than any Letter of Credit) issued for the account
of that Person or as to which that Person is otherwise liable for reimbursement of drawings or
payments; (c) to purchase any materials, supplies or other property from, or to obtain the
services of, another Person if the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other property, or for such services,
shall be made regardless of whether delivery of such materials, supplies or other property is
ever made or tendered, or such services are ever performed or tendered, or (d) in respect of any
Swap Contract. The amount of any Contingent Obligation shall, in the case of Guaranty
Obligations, be deemed equal to the stated or determinable amount of the primary obligation in
respect of which such Guaranty Obligation is made or, if not stated or if indeterminable, the
maximum reasonably anticipated liability in respect thereof, and in the case of other Contingent
Obligations, shall be equal to the maximum reasonably anticipated liability in respect thereof.



“Control Affiliate” means UGI, the Public Partnership, the General Partner and any Person
controlling or controlled by, or under common control with, UGI, the Public Partnership or the
General Partner (other than the Borrower or any of its Subsidiaries).



“Conversion/Continuation Date” means any date on which, under Section 2.4, any
Borrower (a) converts Loans of one Type to the other Type, or (b) continues as Eurodollar Rate
Loans, but with a new Interest Period, Eurodollar Rate Loans having Interest Periods expiring on
such date.



“Covered Persons” shall have the meaning specified in the definition of Restricted Payment.



“Credit Extension” means and includes (a) the making of any Loan hereunder, and (b) the
Issuance of any Letters of Credit hereunder.



“Credit Parties” means the Obligors and any Restricted Subsidiary party to the Subsidiary
Guarantee.



“Debt Indemnity” means the indemnity provided by Triarc Companies, Inc. under Section 5.9
of the National Propane Purchase Agreement.


 


- 10 -









 





“Default” means any event or circumstance which, with the giving of notice, the lapse of
time, or both, would (if not cured or otherwise remedied during such time) constitute an Event of
Default.



“Designation Amounts” has the meaning specified in Section 7.8(a).



“Designee” has the meaning specified in Section 7.8(d).



“Disinterested Directors” means, with respect to any transaction or series of transactions
with Affiliates, a member of the Board of Directors of the General Partner who has no financial
interest, and whose employer has no financial interest, in such transaction or series of
transactions.



“Dollars”, “dollars” and “$” each mean lawful money of the United States.



“EBIT” means, for any period, the Borrower’s and its Restricted Subsidiaries’ Consolidated
Net Income (without duplication, not including losses resulting from the extinguishment of debt
and extraordinary gains or losses, other than losses arising from reserves established in
connection with the Tax Indemnity Provisions (as defined in the National Propane Purchase
Agreement)) plus Consolidated Interest Expense and Consolidated Income Tax Expense in each case
for such period, as determined in accordance with GAAP.



“EBITDA” means, for any period, EBIT plus the Borrower’s and its Restricted Subsidiaries’
depreciation and amortization of property, plant and equipment and intangible assets, in each case
as taken into account in calculating Consolidated Net Income, in each case for such period, as
determined in accordance with GAAP.



For the purposes of calculating the Applicable Margin, the rate of the facility fees payable
pursuant to Section 2.10(b) and the Leverage Ratio, EBITDA for any period (the “Applicable
Period”) shall be adjusted by the addition of the EBITDA of any Asset Acquisitions made during the
Applicable Period, as if such Asset Acquisitions occurred on the first day of the Applicable
Period, plus the addition of the Savings Factor (as defined below); provided,
however, that in the case of calculating the Applicable Margin or the rate of the facility
fees payable pursuant to Section 2.10(b), the Savings Factor shall be added only for the
purpose of causing the Pricing Tier to remain the same (or to limit its increase) and not to
decrease it (i.e. the Savings Factor may be used to maintain pricing or limit any increase in
pricing, not to decrease pricing).



The “Savings Factor” shall equal, with respect to any Asset Acquisition, an amount equal to
50% of the difference between (a) Actual Acquisition Expense (as defined below) minus (b) Pro
Forma Acquisition Expense (as defined below). “Actual Acquisition Expense” means an amount equal
to the personnel expenses and non personnel costs and expenses (which would be deducted from gross
profits in calculating costs and EBITDA) related to the operation of any Asset Acquisition from
the beginning of the Applicable Period to the date of the purchase of the Asset Acquisition. “Pro
Forma Acquisition Expense” means an amount equal to the personnel and non-personnel costs and
expenses (which would be deducted from gross profits in calculating costs and EBITDA) that would
have been incurred with respect to the operation of any Asset Acquisition for the period from the
beginning of the Applicable Period to
the date of purchase of the Asset Acquisition, on the assumption that the ongoing personnel and non
personnel cost and expense savings projected as of the date of the Asset Acquisition had been
realized on the first day of the Applicable Period. In no event shall the aggregate Savings Factor
for any Applicable Period exceed 10% of EBITDA, before taking into effect the EBITDA relating to
such Asset Acquisition, for the Borrower and its Restricted Subsidiaries for such Applicable
Period.


 


- 11 -









 





“Effective Amount” means: (a) with respect to any Loans on any date, the aggregate outstanding
principal amount thereof after giving effect to any Borrowings and prepayments or repayments of
Loans occurring on such date; and (b) with respect to any outstanding L/C Obligations on any date,
the amount of such L/C Obligations on such date after giving effect to any Issuances of Letters of
Credit occurring on such date and any other changes in the aggregate amount of the L/C Obligations
as of such date, including as a result of any reimbursements of outstanding unpaid drawings under
any Letters of Credit or any reductions in the maximum amount available for drawing under Letters
of Credit taking effect on such date.



“Eligible Assignee” means (i) a commercial bank organized under the laws of the United States,
or any state thereof, and having a combined capital and surplus of at least $100,000,000; and (ii)
a commercial bank organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development (the “OECD”), or a political subdivision of
any such country, and having a combined capital and surplus of at least $100,000,000,
provided, that such bank is acting through a branch or agency located in the United States.



“Environmental Laws” means all federal, state or local laws, statutes, common law duties,
rules, regulations, ordinances and codes, together with all administrative orders, directed duties,
requests, licenses, authorizations and permits of, and agreements with, any Governmental
Authorities, in each case relating to environmental matters.



“ERISA” means the Employee Retirement Income Security Act of 1974 and the regulations
thereunder. References to sections of ERISA also refer to any successor sections.



“ERISA Affiliate” means any trade or business (whether or not incorporated) under common
control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections
414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).



“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the failure to
make a required contribution to a Pension Plan if such failure is sufficient to give rise to a Lien
under Section 302(f) of ERISA; (c) a withdrawal by the Borrower or any ERISA Affiliate from a
Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial
employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations which is treated
as such a withdrawal under Section 4062(e) of ERISA; (d) a complete or partial withdrawal by the
Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan
is in reorganization; (e) the filing of a notice of intent to terminate, the treatment of a Plan
amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings
by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (f) an event or condition which might reasonably be expected to
constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (g) the imposition of any
liability under Title IV of ERISA, other than PBGC premiums due but not delinquent under Section
4007 of ERISA, upon the Borrower or any ERISA Affiliate.


 


- 12 -









 








“Eurodollar Base Rate” has the meaning set forth in the definition of Eurodollar Rate.



“Eurodollar Rate” means for any Interest Period with respect to any Eurodollar Rate Loan, a
rate per annum determined by the Agent pursuant to the following formula:





	 	 	 	 
	Eurodollar Rate =	 	Eurodollar Base Rate	 
	 	 	 
	 	1.00 - Eurodollar Reserve Percentage	 





Where,



“Eurodollar Base Rate” means, for such Interest Period:




(a) the rate per annum (rounded upward, if necessary, to the nearest 1/16 of
1%) equal to the rate determined by the Agent to be the offered rate that
appears on the page of the Telerate screen (or any successor thereto) that
displays an average British Bankers Association Interest Settlement Rate for
deposits in Dollars (for delivery on the first day of such Interest Period)
with a term equivalent to such Interest Period, determined as of
approximately 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period, or




(b) if the rate referenced in the preceding clause (a) does not appear on
such page or service or such page or service shall not be available, the
rate per annum (rounded upward, if necessary, to the nearest 1/16 of 1%)
equal to the rate determined by the Agent to be the offered rate on such
other page or other service that displays an average British Bankers
Association Interest Settlement Rate for deposits in Dollars (for delivery
on the first day of such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period, or




(c) if the rates referenced in the preceding clauses (a) and (b) are not
available, the rate per annum (rounded upward, if necessary, to the nearest
1/16 of 1%) determined by the Agent as the rate of interest at which
deposits in Dollars for delivery on the first day of such Interest Period in
same day funds in the approximate amount of the Eurodollar Rate Loan being
made, continued or converted by Wachovia and with a term equivalent to such
Interest Period would be offered by Wachovia’s London branch to major banks
in the London interbank eurodollar market at their request at approximately
4:00 p.m. (London time) two Business Days prior to the first
day of such Interest Period.


 


- 13 -









 






“Eurodollar Reserve Percentage” means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to five
decimal places) in effect on such day, whether or not applicable to any
Bank, under regulations issued from time to time by the FRB for determining
the maximum reserve requirement (including any emergency, supplemental or
other marginal reserve requirement) with respect to Eurocurrency funding
(currently referred to as “Eurocurrency liabilities”). The Eurodollar Rate
for each outstanding Eurodollar Rate Loan shall be adjusted automatically as
of the effective date of any change in the Eurodollar Reserve Percentage.



“Eurodollar Rate Loan” means a Loan that bears interest at a rate based on the Eurodollar
Rate.



“Event of Default” has the meaning specified in Section 9.1.



“Excess Sale Proceeds” has the meaning specified in Section 8.8(c)(ii)(B).



“Exchange Act” means the Securities Exchange Act of 1934, and regulations promulgated
thereunder.



“Existing Credit Agreement” means that certain Credit Agreement, dated as of August 28, 2003,
among the Obligors, the financial institutions party thereto, Citicorp USA, Inc., as Syndication
Agent, Credit Suisse Securities (USA) LLC (as successor to Credit Suisse First Boston), as
Documentation Agent, and Wachovia as administrative agent, as amended from time to time in
accordance with its terms.



“Existing Letters of Credit” means all letters of credit listed and identified by letter or
credit number on Schedule 3.1(a) and outstanding on the Closing Date.



“FDIC” means the Federal Deposit Insurance Corporation, and any Governmental Authority
succeeding to any of its principal functions.



“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank on the
Business Day next succeeding such day; provided that (a) if such day is not a Business
Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next
preceding Business Day as so published on the next succeeding Business Day, and (b) if no such
rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Wachovia on such day on such transactions as determined by the Agent.



“Fee Letter” has the meaning specified in Section 2.10(a).


 


- 14 -









 





“First Mortgage Note Agreements” means, collectively, (a) the Note Agreement, dated as of
March 15, 1999, among the Borrower, the General Partner and the holders of the
Series D First Mortgage Notes, as the same may be amended, supplemented or otherwise modified from
time to time and (b) the Note Agreement, dated as of March 15, 2000, among the Borrower, the
General Partner and the holders of the Series E First Mortgage Note, as the same may be amended,
supplemented or otherwise modified from time to time.



“First Mortgage Notes” means the Series D First Mortgage Notes and the Series E First
Mortgage Notes.



“Foreign Bank” has the meaning specified in Section 10.13(a).



“FRB” means the Board of Governors of the Federal Reserve System, and any Governmental
Authority succeeding to any of its principal functions.



“Funded Debt” means, as of any date of determination, (i) indebtedness of the Borrower and/or
its Restricted Subsidiaries for borrowed money or for the deferred purchase price of property or
services, other than indebtedness for trade payables and non-recourse indebtedness which is not
required by GAAP to be classified as a liability on the balance sheet of the debtor, (ii)
Capitalized Lease Liabilities, and (iii) Contingent Obligations. For purposes of this definition,
undrawn letters of credit shall not constitute Funded Debt.



“Funded Debt Ratio” means the ratio of (a) Funded Debt to (b) EBITDA.



“GAAP”
has the meaning specified in Section 1.3(a).



“Guaranteeing Entity” has the meaning specified in Section 7.9(f).



“Guarantors” has the meaning specified in the introductory clause hereto.



“Guarantor Financials” has the meaning specified in Section 7.9(b).



“General Partner” has the meaning specified in the introductory clause hereto.



“Governmental Authority” means any nation or government, any state or other political
subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any
entity exercising executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or controlled, through stock
or capital ownership or otherwise, by any of the foregoing.



“Guaranty Obligation” has the meaning specified in the definition of “Contingent Obligation”.



“Hazardous Material” means:



(a) any “hazardous substance”, as defined by CERCLA;



(b) any “hazardous waste”, as defined by the Resource Conservation and
Recovery Act, as amended;


 


- 15 -









 





(c) any petroleum product other than propane; or



(d) any pollutant or contaminant or hazardous, dangerous or toxic chemical, material or
substance within the meaning of any other applicable federal, state or local law, regulation,
ordinance or requirement (including consent decrees and administrative orders) relating to or
imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste,
substance or material, all as amended or hereafter amended.



“Honor Date” has the meaning specified in Section 3.3(b).



“ICC” has the meaning specified in Section
3.9.



“Incorporated Covenant” has the meaning specified in Section 7.9(d).



“Indebtedness” of any Person means, without duplication, (a) all indebtedness for borrowed
money; (b) all obligations issued, undertaken or assumed as the deferred purchase price of
property or services (other than trade payables and accrued expenses arising in the ordinary
course of business on ordinary terms); (c) all non-contingent reimbursement or payment obligations
with respect to Surety Instruments; (d) all obligations evidenced by notes, bonds, debentures or
similar instruments, including obligations so evidenced incurred in connection with the
acquisition of property, assets or businesses; (e) all indebtedness created or arising under any
conditional sale or other title retention agreement, or incurred as financing, in either case with
respect to property acquired by the Person (even though the rights and remedies of the seller or
bank under such agreement in the event of default are limited to repossession or sale of such
property); (f) all Capitalized Lease Liabilities; (g) all indebtedness referred to in
clauses 0.1 through (f) above secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon
or in property (including accounts and contracts rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such Indebtedness; (h) all Redeemable
Capital Stock of such Person valued at the greater of its voluntary or involuntary maximum fixed
repurchase price plus accrued dividends; (i) any Preferred Stock of any Subsidiary of such Person
valued at the sum of the liquidation preference thereof or any mandatory redemption payment
obligations in respect thereof plus, in either case, accrued dividends thereon and (j) all
Guaranty Obligations in respect of indebtedness or obligations of others of the kinds referred to
in clauses (a) through Li) above.



“Indemnified Liabilities” has the meaning specified in Section 12.5.



“Indemnified Parties” has the meaning specified in Section 12.5,.



“Insolvency Proceeding” means (a) any case, action or proceeding before any court or other
Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation,
receivership, dissolution, winding-up or relief of debtors, or (b) any general assignment for the
benefit of creditors, composition, marshaling of assets for creditors, or other, similar
arrangement in respect of a Person’s creditors generally or any substantial portion of a Person’s
creditors; in each case undertaken under U.S. Federal, state or foreign law, including in each
case the Bankruptcy Code.


 


- 16 -









 





“Intercompany Loan Agreement” means that certain Loan Agreement, dated July 19, 1999, between
National Propane, L.P. (renamed AEPLP) and Columbia Propane Corporation (renamed AEPI), as
amended, supplemented or otherwise modified from time to time.



“Intercompany Note” means that certain Promissory Note, dated July 19, 1999, by AEPLP in
favor of the Borrower by endorsement from AEPI in the original principal amount of $137,997,000,
as amended, supplemented or otherwise modified from time to time.



“Interest Payment Date” means, (i) as to any Eurodollar Rate Loan, the last day of each
Interest Period applicable to such Loan, (ii) as to any Base Rate Loan, the last Business Day of
each calendar quarter and (iii) as to any Swing Line Loan, the last Business Day of each calendar
quarter; provided, however, that if any Interest Period for a Eurodollar Rate Loan
exceeds three months, the date that falls three months after the beginning of such Interest Period
is also an Interest Payment Date.



“Interest Period” means, as to any Eurodollar Rate Loan, the period commencing on
the Borrowing Date of such Loan or on the Conversion/Continuation Date on which the Loan is
converted into or continued as a Eurodollar Rate Loan, and ending on the date two weeks or one,
two, three or six months thereafter as selected by the Borrower in its Notice of Borrowing or
Notice of Conversion/Continuation; provided, that:



(i) if any Interest Period would otherwise end on a day that is not a Business Day, that
Interest Period shall be extended to the following Business Day unless the result of such
extension would be to carry such Interest Period into another calendar month, in which event such
Interest Period shall end on the preceding Business Day;



(ii) any Interest Period that begins on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the calendar month at the end of such
Interest Period; and




(iii) no Interest Period for any Loan shall extend beyond the Termination Date.



“Interest Rate Agreement” means any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement or other similar agreement or arrangement designed to
protect the Borrower against fluctuations in interest rates on Senior Indebtedness.



“Investment” means, as applied to any Person, any direct or indirect purchase or other
acquisition by such Person of stock or other securities of any other Person, or any direct or
indirect loan, advance or capital contribution by such Person to any other Person, and any other
item which would be classified as an “investment” on a balance sheet of such Person prepared in
accordance with GAAP, including without limitation any direct or indirect contribution of such
Person of property or assets to a joint venture, partnership or other business entity in which
such Person retains an interest (it being understood that a direct or indirect purchase or other
acquisition by such Person of assets of any other Person (other than stock or other securities)
shall not constitute an


 


- 17 -









 





“Investment”
for purposes of this Agreement). For purposes of Section 8.4(c), the amount involved in Investments made during any period shall be the
aggregate cost to the Borrower and its Restricted Subsidiaries of all such Investments made during
such period, determined in accordance with GAAP, but without regard to unrealized increases or
decreases in value, or write-ups, write-downs or write-offs, of such Investments and without regard
to the existence of any undistributed earnings or accrued interest with respect thereto accrued
after the respective dates on which such Investments were made, less any net return of capital
realized during such period upon the sale, repayment or other liquidation of such Investments
(determined in accordance with GAAP, but without regard to any amounts received during such period
as earnings (in the form of dividends not constituting a return of capital, interest or otherwise)
on such Investments or as loans from any Person in whom such Investments have been made).



“Investment Condition” has the meaning specified in Section 7.8(a).



“Investment Limit” has the meaning specified in Section 8.4(c).



“IRS” means the Internal Revenue Service, and any Governmental Authority succeeding to any of
its principal functions under the Code.



“ISP98” has the meaning specified in Section 3.9.



“Issuance Date” has the meaning specified in Section 3.1(a).



“Issue” means, with respect to any Letter of Credit, to issue or to extend the expiry of, or
to renew or increase the amount of, such Letter of Credit; and the terms Issued, Issuing and
Issuance have corresponding meanings.



“Issuing Bank” means Wachovia in its capacity as issuer of one or more Letters of Credit
hereunder, together with any replacement letter of credit issuer arising under Section
10.1(b) or Section 10.9.



“Keep Well Agreement” means that certain Keep Well Agreement, dated as of August 21, 2001,
between the Borrower and Columbia Propane Corporation (renamed AEPI).



“L/C Advance” means each Bank’s participation in any L/C Borrowing in accordance with its Pro
Rata Share.



“L/C Amendment Application” means an application form for amendment or renewal of outstanding
standby letters of credit as shall at any time be in use at the Issuing Bank, as the Issuing Bank
shall request.



“L/C Application” means an application form for issuances of standby letters of credit as
shall at any time be in use at the Issuing Bank, as the Issuing Bank shall request.



“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of
Credit which shall not have been reimbursed on the date when made or converted into a Borrowing of
Revolving Loans under Section 3.3(c).


 


- 18 -









 





“L/C Commitment” means the commitment of the Issuing Bank to Issue, and the commitment of the
Banks severally to participate in, Letters of Credit from time to time Issued or outstanding under
Article III, in an aggregate amount not to exceed on any date the amount of the Revolving
Commitment, it being understood that the L/C Commitment is a part of the Revolving Commitments
rather than a separate, independent commitment.



“L/C Obligations” means at any time the sum of (a) the aggregate undrawn amount of all
Letters of Credit then outstanding, plus (b) the amount of all outstanding L/C Borrowings.



“L/C-Related Documents” means the Letters of Credit, the L/C Applications, the L/C Amendment
Applications and any other document executed by the Borrower relating to any Letter of Credit,
including any of the Issuing Bank’s standard form documents for letter of credit issuances, as the
same may be amended, supplemented, assigned or otherwise modified from time to time.



“L/C Termination Date” means the date that is three days prior to the Termination Date.



“Lending Office” means, as to any Bank, the office or offices of such Bank specified as its
“Lending Office” or “Domestic Lending Office” or “Eurodollar Lending Office”, as the case may be,
on Schedule 12.2, or such other office or offices as such Bank may from time to time
notify the Borrower and the Agent.



“Letters of Credit” means any standby letters of credit issued by the Issuing Bank pursuant
to Article III.



“Leverage Ratio” means, as of any date of determination, the ratio of (i) Total Debt to (ii)
EBITDA.



“LIBOR Market Index Rate” means, for any day, the rate for one month U.S. dollar deposits as
reported on Telerate page 3750 as of 11:00 a.m., London time, for such day, provided, if such day
is not a London business day, the immediately preceding London business day (or if not so
reported, then as determined by the Swing Line Bank from another recognized source or interbank
quotation).



“Lien” means any security interest, mortgage, deed of trust, pledge, hypothecation,
assignment, charge or deposit arrangement, encumbrance, lien (statutory or other) or preferential
arrangement of any kind or nature whatsoever in respect of any property (including those created
by, arising under or evidenced by any conditional sale or other title retention agreement, the
interest of a lessor under a capital lease, any financing lease having substantially the same
economic effect as any of the foregoing, or the filing of any financing statement naming the owner
of the asset to which such lien relates as debtor, under the Uniform Commercial Code or any
comparable law) and any contingent or other agreement to provide any of the foregoing, but not
including the interest of a lessor under an operating lease.





 


- 19 -











 




“Loan” means an extension of credit by a Bank to the Borrower under Article II, and
may be a Base Rate Loan or a Eurodollar Rate Loan (each, a “Type” of Loan), and includes
any Revolving Loan, Acquisition Loan or Swing Line Loan; provided, that no Swing Line Loan
may be a Base Rate Loan or a Eurodollar Rate Loan but shall bear interest at the Swing Line Rate.



“Loan Documents” means this Agreement, any Notes, the Fee Letter, the Subsidiary Guarantee,
the L/C Related Documents, each Notice of Borrowing, each Notice of Conversion/Continuation and
each Compliance Certificate.



“Long Term Funded Debt” means, as applied to any Person, all Indebtedness of such Person
which by its terms or by the terms of any instrument or agreement relating thereto matures one
year or more from the date of execution of the instruments governing any such Indebtedness or, if
applicable, the execution of any instrument extending the maturity date of such Indebtedness,
provided, that Long Term Funded Debt shall include any Indebtedness which does not
otherwise come within the foregoing definition but which is directly or indirectly renewable or
extendible at the option of the debtor to a date one year or more (including an option of the
debtor under a revolving credit or similar agreement obligating the lender or lenders to extend
credit over a period of one year or more) from the date of execution of the instruments governing
any such Indebtedness or, if applicable, the execution of any instrument extending the maturity
date of such Indebtedness.




“Margin Stock” means “margin stock” as such term is defined in Regulation U or X of the FRB.



“Material Adverse Effect” means (a) a material adverse effect on the business, Assets or
financial condition of the Borrower and its Restricted Subsidiaries taken as a whole; or (b) a
material impairment of the ability of the Borrower or any Restricted Subsidiary to perform any of
its obligations under this Agreement, the Notes or the other Loan Documents to which it is a
party.



“Multiemployer Plan” means a “multiemployer plan”, within the meaning of Section 4001(a)(3)
of ERISA, with respect to which the Borrower or any ERISA Affiliate may have any liability.



“National Propane Purchase Agreement” means that certain Purchase Agreement, dated April 5,
1999, by and among AEPLP, AEPH, AEPI, National Propane Partners, L.P., National Propane
Corporation, National Propane SGP, Inc. and Triarc Companies, Inc., as amended, supplemented or
otherwise modified from time to time.



“Net Amount of Unrestricted Investment” means the sum of, without duplication, (x) the
aggregate amount of all Investments made after the date hereof pursuant to Section 8.4(h)
(computed as provided in the last sentence of the definition of Investment) and (y) the aggregate
of all Designation Amounts in connection with the designation of Unrestricted Subsidiaries
pursuant to the provisions of Section 7.8 less all Designation Amounts in respect of
Unrestricted Subsidiaries which have been designated as Restricted Subsidiaries in accordance with
the provisions of Section 7.8 and otherwise reduced in a manner consistent with the
provisions of the last sentence of the definition of Investment.


 


- 20 -









 





“Net Proceeds” means with respect to any Asset Sale, the proceeds thereof in the form of cash
or Cash Equivalents including payments in respect of deferred payment obligations when received in
the form of cash or Cash Equivalents net of (i) reasonable brokerage commissions and other
reasonable fees and expenses (including without limitation reasonable fees and expenses of legal
counsel and accountants and reasonable fees, expenses and discounts or commissions of
underwriters, placement agents and investment bankers) related to such Asset Sale; (ii) provisions
for all taxes payable as a result of such Asset Sale; (iii) amounts required to be paid to any
Person (other than the Borrower or any Restricted Subsidiary) owning a beneficial interest in the
assets subject to such Asset Sale; (iv) appropriate amounts to be provided by the Borrower or any
Restricted Subsidiary, as the case may be, as a reserve required in accordance with GAAP against
any liabilities associated with such Asset Sale and retained by the Borrower or any Restricted
Subsidiary, as the case may be, after such Asset Sale, including, without limitation, pension and
other post-employment benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such Asset Sale; and (v) amounts
required to be applied to the repayment of Indebtedness (other than the Obligations and the other
Senior Indebtedness) secured by a Lien on the asset or assets sold in such Asset Sale.




“New Banks” shall have the meaning specified in Section 2.15(b).




“Non AEPLP Restricted Subsidiary” has the meaning specified in Section 8.18(a).




“Non-PP&EAssets” has the meaning specified in Section 8.18(b).



“Note” means a promissory note executed by the Borrower in favor of a Bank pursuant to
Section 2.2(d), substantially in the form of Exhibit F-1 (in the case of
Acquisition Loans), or Exhibit F-2 (in the case of Revolving Loans), as the same may be
amended, supplemented or otherwise modified from time to time in accordance with the terms hereof.




“Notice Date” shall have the meaning specified in Section 2.15(b).



“Notice of Borrowing” means a notice in substantially the form of Exhibit A-1, in the
case of a Swing Line Loan, and Exhibit A-2 in the case of any other Loan.



“Notice of Conversion/Continuation” means a notice in substantially the form of Exhibit
B.



“Obligations” means all advances, debts, liabilities, obligations, covenants and duties
arising under any Loan Document owing by any of the Obligors or other Credit Parties to any Bank,
the Agent or any Indemnified Party, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing or hereafter arising.




“Obligors” has the meaning specified in the introductory clause hereto.



“OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control and any
successor Governmental Authority.


 


- 21 -









 





“Officers’ Certificate” means as to any corporation, a certificate executed on its behalf by
the Chairman of the Board of Directors (if an officer) or its President or one of its Vice
Presidents, and its Treasurer, or Controller, or one of its Assistant Treasurers or Assistant
Controllers, and, as to any partnership, a certificate executed on behalf of such partnership by
its general partner in a manner which would qualify such certificate (a) if such general partner
is a corporation, as an Officers’ Certificate of such general partner hereunder or (b) if such
general partner is a partnership or other entity, as a certificate executed on its behalf by
Persons authorized to do so pursuant to the constituting documents of such partnership or other
entity.



“Organization Documents” means, for any corporation, the certificate or articles of
incorporation, the bylaws, any certificate of determination or instrument relating to the rights
of preferred shareholders of such corporation, any shareholder rights agreement, and all
applicable resolutions of the board of directors (or any committee thereof) of such corporation
and as to any partnership, its partnership agreement, certificate of partnership and related
agreements and as to any other entity, such other entity’s analogous organizational documents, as
the same may be amended, supplemented or otherwise modified from time to time.




“Originating Bank” has the meaning specified in Section 12.9(e).



“Other Taxes” means any present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this Agreement or any other
Loan Documents.




“Participant” has the meaning specified in Section 12.9(e).



“Partnership Agreement” means the Amended and Restated Agreement of Limited Partnership of
the Borrower, as the same may from time to time be amended, supplemented or otherwise modified.



“Partnership Unrestricted Subsidiaries” means the Unrestricted Subsidiaries of the Public
Partnership as defined in the Public Partnership Indenture as in effect on the Closing Date.



“PBGC” means the Pension Benefit Guaranty Corporation, or any Governmental Authority
succeeding to any of its principal functions under ERISA.



“Pension Plan” means a “pension plan”, as such term is defined in section 3(2) of ERISA,
which is subject to Title IV of ERISA (other than a multiemployer plan as defined in section
4001(a)(3) of ERISA) with respect to which the Borrower or any ERISA Affiliates may have any
liability.




“Permitted Banks” has the meaning specified in Section 8.4(a).



“Person” means an individual, partnership, corporation, limited liability company, business
trust, joint stock company, trust, unincorporated association, joint venture or Governmental
Authority or other entity.


 


- 22 -









 






“Petrolane” has the meaning specified in the introductory clause hereto.



“Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) which the
Borrower sponsors or maintains or to which the Borrower makes, is making, or is obligated to make
contributions and includes any Pension Plan.



“PP&E Acquisition/Investment/Transfer Limit” has the meaning specified in Section
8.16.



“PP&E Assets” means assets that would, in accordance with GAAP, be classified and accounted
for as “property, plant and equipment” on the consolidated balance sheet of the Borrower and the
Restricted Subsidiaries.




“PP&E Transfer” has the meaning specified in Section 8.18(b).



“PPD/GP Debt Contribution” means the amount of aggregate net cash proceeds previously
received by the Borrower from time to time from the Public Partnership as a capital contribution
made with the proceeds of Public Partnership Indebtedness and the General Partner in connection
with its related and contemporaneous capital contribution and designated as such by such Persons
at the time of contribution in the corporate or other records of such Persons.



“Preferred Stock”, as applied to the Capital Stock of any Person, means Capital Stock of any
class or classes (however designated), which is preferred as to the payment of distributions or
dividends, or upon any voluntary or involuntary liquidation or dissolution of such Person, over
shares or units of Capital Stock of any other class of such Person.




“Pricing Tier” has the meaning specified in the definition of “Applicable Margin.”



“Prime Rate” means, at any time, the rate of interest in effect for such day as publicly
announced from time to time by Wachovia as its “prime rate” (which is not necessarily the lowest
rate charged to any customer). Any change in such rate announced by Wachovia shall take effect at
the opening of business on the day specified in the public announcement of such change.



“Pro Rata Share” means, as to any Bank at any time, the percentage equivalent (expressed as a
decimal, rounded to the ninth decimal place) at such time of such Bank’s Commitment divided by the
combined Commitments of all Banks.




“Public Partnership” means AmeriGas Partners, L.P., a Delaware limited partnership.



“Public Partnership Indenture” means each of the Indentures among the Public Partnership, its
financing subsidiaries, and Wachovia, as trustee, with respect to the Public Partnership Notes, as
the same may be amended, supplemented or otherwise modified from time to time.


 


- 23 -









 





“Public Partnership Notes” means the notes issued, from time to time, jointly and severally,
by the Public Partnership and its financing subsidiaries, as the same may be amended, supplemented
or otherwise modified from time to time.




“Purchase Money Lien” has the meaning specified in Section 8.3(h).



“Redeemable Capital Stock” means any shares of any class or series of Capital Stock, that,
either by the terms thereof, by the terms of any security into which it is convertible or
exchangeable or by contract or otherwise, is or upon the happening of an event or passage of time
would be, required to be redeemed prior to the date of the last scheduled payment of any Loan then
outstanding or is redeemable at the option of the holder thereof at any time prior to such date, or
is convertible into or exchangeable for Indebtedness at any time prior to such date.



“Reference Period” shall have the meaning specified in the definition of Consolidated Cash
Flow.




“Replacement Bank” has the meaning specified in Section 4.7.



“Reportable Event” means, any of the events set forth in Section 4043(b) of ERISA or the
regulations thereunder, other than any such event for which the 30-day notice requirement under
ERISA has been waived in regulations issued by the PBGC.



“Required Banks” means at any time Banks then holding at least 66-2/3% of the then aggregate
unpaid principal amount of the Loans (assuming that any outstanding Swing Line Loans were converted
into Revolving Loans or participated in by the Banks pursuant to Section 2.16) and L/C
Borrowings and risk participations in outstanding Letters of Credit (or in the case of the Issuing
Bank, the amount of the outstanding Letters of Credit minus risk participations of the other Banks
therein), or, if no amounts are outstanding, Banks then having at least 66-2/3% of the aggregate
amount of the Commitments.



“Requirement of Law” means, as to any Person, any law (statutory or common), treaty, rule or
regulation or determination of an arbitrator or of a Governmental Authority, in each case
applicable to or binding upon the Person or any of its property or to which the Person or any of
its property is subject.



“Resource Conservation and Recovery Act” means the Resource Conservation and Recovery Act, 42
U.S.C. Section 690, et seq., as in effect from time to time.



“Responsible Officer” means the chief executive officer or the president of the Borrower, or
any other officer having substantially the same authority and responsibility; or, with respect to
compliance with financial covenants, the chief financial officer or the treasurer of the Borrower,
or any other officer having substantially the same authority and responsibility.


 


- 24 -









 





“Restricted Payment” means with respect to the Borrower and its Restricted Subsidiaries (the
“Covered Persons”), (a) in the case of any Covered Person that is a partnership, (i) any payment or
other distribution, direct or indirect, in respect of any partnership interest in such Covered
Person, except a distribution payable solely in additional partnership interests in such
Covered Person, and (ii) any payment, direct or indirect, by such Covered
Person on account of the redemption, retirement, purchase or other acquisition of any partnership
interest in such Covered Person, except to the extent that such payment consists of additional
partnership interests in such Covered Person; or (b) in the case of any Covered Person that is a
corporation, (i) any dividend or other distribution, direct or indirect, on account of any shares
of any class of stock of such Covered Person then outstanding, except a dividend payable solely in
shares of stock of such Covered Person, and (ii) any payment, direct or indirect, by such Covered
Person on account of the redemption, retirement, purchase or other acquisition of any shares of
any class of stock of such Covered Person then outstanding, or of any warrants, rights or options,
to acquire any such shares, except to the extent that such payment consists of shares of Capital
Stock of such Covered Person; (c) in the case of any Covered Person that is a limited liability
company, (i) any payment or other distribution, direct or indirect, in respect of any membership
interest in such Covered Person, except a distribution payable solely in additional membership
interests in such Covered Person, and (ii) any payment, direct or indirect, by such Covered Person
on account of the redemption, retirement, purchase or other acquisition of any membership interest
in such Covered Person, except to the extent that such payment consists of additional membership
interests in such Covered Person; or (d) any indemnification payment made by AEPLP, AEPH or AEPI
pursuant to the Tax Indemnity Provisions (as defined in the National Propane Purchase Agreement),
including any payment made by the Borrower to AEPI pursuant to the Keep Well Agreement.



“Restricted Subsidiary” means any Subsidiary of the Borrower organized under the laws of the
United States or any state thereof or Canada or any province thereof or the District of Columbia,
none of the Capital Stock or ownership interests of which is owned by Unrestricted Subsidiaries
and substantially all of the operating assets of which are located in, and substantially all of
the business of which is conducted within, the United States or Canada and which is designated as
a Restricted Subsidiary in Schedule 6.2 or which shall be designated as a Restricted
Subsidiary by the General Partner at a subsequent date as provided in Section 7.8;
provided, however, that (a) to the extent a newly formed or acquired Subsidiary is
not declared either a Restricted Subsidiary or an Unrestricted Subsidiary within 90 days of its
formation or acquisition, such Subsidiary shall be deemed a Restricted Subsidiary and (b) a
Restricted Subsidiary may be designated as an Unrestricted Subsidiary in accordance with the
provisions of Section 7.8.




“Revolving Commitment” has the meaning specified in Section 2.1(b).




“Revolving Loan” has the meaning specified in Section 2.1(b).




“Routine Permits” has the meaning specified in Section 6.8(a).



“Sale and Lease-Back Transaction” of a Person (a “Transferor”) means any arrangement (other
than between the Borrower and a Wholly-Owned Restricted Subsidiary or between Wholly-Owned
Restricted Subsidiaries) whereby (a) property (the “Subject Property”) has been or is to be
disposed of by such Transferor to any other Person with the intention on the part of such
Transferor of taking back a lease of such Subject Property pursuant to which the rental payments
are calculated to amortize the purchase price of such Subject Property substantially over the
useful life of such Subject Property, and (b) such Subject Property is in fact so leased by such
Transferor or an Affiliate of such Transferor.


 


- 25 -









 






“Sale Condition” has the meaning specified in Section 7.8(a).



“Sanctioned Entity” means (a) an agency of the government of, (b) an organization directly or
indirectly controlled by, or (c) a Person resident in, in each case, a country that is subject to
a sanctions program identified on the list maintained by the OFAC and published from time to time,
as such program may be applicable to such agency, organization or Person.



“Sanctioned Person” means a Person named on the list of Specially Designated Nationals or
Blocked Persons maintained by the OFAC as published from time to time.



“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding
to any of its principal functions.



“Senior Indebtedness” means the Obligations, the obligations of the Borrower and the General
Partner under the First Mortgage Notes and any other Indebtedness incurred pursuant to Section
8.1(a).



“Series D First Mortgage Notes” means the First Mortgage Notes, Series D, in aggregate
principal amount not exceeding $70,000,000, issued pursuant to that certain Note Agreement, dated
as of March 15, 1999, among the Borrower, the General Partner and the purchasers named in Schedule
I thereto, as amended, supplemented, assigned or otherwise modified from time to time.



“Series E First Mortgage Notes” means the First Mortgage Notes, Series E, in an aggregate
principal amount of $80,000,000, issued pursuant to that certain Note Agreement, dated as of March
15, 2000, among the Borrower, the General Partner and the purchasers named in Schedule I thereto,
as amended, supplemented, assigned or otherwise modified from time to time.



“Significant Subsidiary Group” means any Subsidiary of the Borrower which is, or any group of
Subsidiaries of the Borrower all of which are, at any time of determination, subject to one or
more of the proceedings or conditions described in subsection (f) or fg) of Section
9.1, and which Subsidiary or group of Subsidiaries accounted for (or in the case of
a recently formed or acquired Subsidiary would have so accounted for on a pro forma basis) more
than 1% of consolidated operating revenues of the Borrower for the fiscal year most recently ended
or more than 1% of consolidated Total Assets of the Borrower as of the end of the most recently
ended fiscal quarter, in each case computed in accordance with GAAP.



“Special Rating” means a risk-based capital factor attributable to Indebtedness for purposes
of generally applicable state insurance regulations for life, health and disability insurance
companies, substantially equivalent to an investment grade rating issued by a nationally
recognized credit rating agency.



“Specified Acquisition Loans” means the Acquisition Loans used solely for the purposes
described in Section 8.9(c)(ii).


 


- 26 -









 





“Subject Property” shall have the meaning specified in the definition of Sale and Lease-Back
Transaction.



“Subsidiary” means, with respect to any Person, any corporation, limited liability company,
partnership, joint venture, association, trust or other entity of which (or in which) more than
50% of (a) the issued and outstanding Capital Stock having ordinary voting power to elect a
majority of the board of directors of such corporation (irrespective of whether at the time
Capital Stock of any other class or classes of such corporation shall or might have voting power
upon the occurrence of any contingency), (b) the interests in the capital or profits of such
partnership, limited liability company, joint venture or association with ordinary voting power to
elect a majority of the board of directors (or Persons performing similar functions) of such
partnership, limited liability company, joint venture or association, or (c) the beneficial
interests in such trust or other entity with ordinary voting power to elect a majority of the
board of trustees (or Persons performing similar functions) of such trust or other entity, is at
the time directly or indirectly owned or controlled by such Person, by such Person and one or more
of its other Subsidiaries, or by one or more of such Person’s other Subsidiaries.



“Subsidiary Guarantee” means that certain Restricted Subsidiary Guarantee, dated as of the
date hereof, by all of the Restricted Subsidiaries (other than AEPLP and any Subsidiary of AEPLP)
for the benefit of the Agent, as the same may be amended, supplemented, assigned or otherwise
modified from time to time.



“Surety Instruments” means all letters of credit (including standby and commercial), bankers
acceptances, bank guaranties, shipside bonds, surety bonds and similar instruments.



“Swap Contract” means any agreement (including any master agreement and any agreement,
whether or not in writing, relating to any single transaction) that is an interest rate swap
agreement, basis swap, forward rate agreement, commodity swap, commodity option, equity or equity
index swap or option, bond option, interest rate option, forward foreign exchange agreement, rate
cap, collar or floor agreement, currency swap agreement, crosscurrency rate swap agreement,
swaption, currency option or any other, similar agreement (including any option to enter into any
of the foregoing).



“Swing Line Bank” means Wachovia in its capacity as provider of Swing Line Loans, or any
successor swing line bank hereunder.



“Swing Line Loan” has the meaning specified in Section 2.16(a).



“Swing Line Rate” means, the Libor Market Index Rate as that rate may change from day to day
in accordance with changes in the LIBOR Market Index Rate plus the Applicable Margin for
Eurodollar Rate Loans as in effect on such date.



“Swing Line Sublimit” means an amount equal to the lesser of (a) $20,000,000 and (b) the
Revolving Commitments. The Swing Line Sublimit is part of, and not in addition to, the Revolving
Commitments.


 


- 27 -









 





“Taxes” means any and all present or future taxes, levies, imposts or withholdings, and all
penalties, interest and additions to taxes with respect thereto, excluding, in the case of each
Bank and the Agent, such taxes (including income taxes or franchise taxes) as are imposed on or
measured by each Bank’s net income or capital by the jurisdiction (or any political subdivision
thereof) under the laws of which such Bank or the Agent, as the case may be, is organized or
maintains a lending office.




“Termination Date” means the earlier to occur of:



(a) October 15, 2011, as such date may be extended pursuant to Section 2.15 hereof;
and



(b) the date on which the Commitments terminate in accordance with the provisions of this
Agreement.



“Total Assets” means as of any date of determination, the consolidated total assets of the
Borrower and the Restricted Subsidiaries as would be shown on a consolidated balance sheet of the
Borrower and the Restricted Subsidiaries prepared in accordance with GAAP as of that date.



“Total Debt” means as of any date of determination, the aggregate principal amount of all
Indebtedness of the Borrower and the Restricted Subsidiaries at the time outstanding (other than
Indebtedness permitted by Section 8.1(c)). For purposes of computing the Leverage Ratio
pursuant to Section 8.14, Total Debt shall also include the obligations described in
clause (c) of the definition of “Contingent Obligation.”




“Transfer” has the meaning specified in Section 8.18(b).



“Transferor” shall have the meaning specified in the definition of Sale and Lease-Back
Transaction.



“Type” has the meaning specified in the definition of
“Loan.” “UGI” means UGI Corporation, a Pennsylvania corporation.



“United States” and “U.S.” each means the United States of America.



“Unrestricted Subsidiary” means a Subsidiary of the Borrower which is not a Restricted
Subsidiary.




“Wachovia” means Wachovia Bank, National Association and its successors.



“Wholly-Owned Restricted Subsidiary” means any Restricted Subsidiary that is also a
Wholly-Owned Subsidiary of the Borrower.


 


- 28 -









 





“Wholly-Owned Subsidiary” means, as applied to any Subsidiary of any Person, a Subsidiary in
which (other than directors’ qualifying shares required by law) 100% of the Capital Stock of each
class having ordinary voting power, and 100% of the Capital Stock of
every other class, in each case, at the time as of which any determination is being made, is owned,
beneficially and of record, by such Person, or by one or more of such Person’s other Wholly-Owned
Subsidiaries, or both; provided, that for the purposes of this Agreement, (a) AEPLP shall
be deemed a “Wholly-Owned Subsidiary” of the Borrower for so long as the Borrower directly or
indirectly owns at least 99% of the Capital Stock of AEPLP and 100% of the general partnership
interests therein, and (b) AmeriGas Eagle Parts & Service shall be deemed a “Wholly-Owned
Subsidiary” of the Borrower for so long as (i) AEPLP remains a Restricted Subsidiary and a
“Wholly-Owned Subsidiary” of the Borrower and (ii) AEPLP directly or indirectly owns at least 100%
of the Capital Stock of AmeriGas Eagle Parts & Service.




“Yearly Threshold” has the meaning specified in Section 8.16.



1.2 Other Interpretive Provisions. (a) The meanings of defined terms are equally
applicable to the singular and plural forms of the defined terms.



(b) The words “hereof’, “herein”, “hereunder” and similar words refer to this Agreement as a
whole and not to any particular provision of this Agreement; and subsection, Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.




(c) (i) The term “including” is not limiting and means “including without limitation.”



(ii) In the computation of periods of time from a specified date to a later specified date,
the word “from” means “from and including”; the words “to” and “until” each mean “to but
excluding”, and the word “through” means “to and including.”



(d) Unless otherwise expressly provided herein, (i) references to agreements (including this
Agreement) and other contractual instruments shall be deemed to include all subsequent amendments
and other modifications thereto, but only to the extent such amendments and other modifications are
not prohibited by the terms of any Loan Document, and (ii) references to any statute or regulation
are to be construed as including all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting the statute or regulation.



(e) The captions and headings of this Agreement are for convenience of reference only and
shall not affect the interpretation of this Agreement.



(f) This Agreement and other Loan Documents may use several different limitations, tests or
measurements to regulate the same or similar matters. All such limitations, tests and measurements
are independent and shall each be performed in accordance with their terms.



(g) This Agreement and the other Loan Documents are the result of negotiations among and have
been reviewed by counsel to the Agent, the Borrower and the other parties, and are the products of
all parties. Accordingly, they shall not be construed against the Banks or the Agent merely because
of the Agent’s or Banks’ involvement in their preparation.


 


- 29 -









 





1.3 Accounting Principles. (a) Unless otherwise specified, all accounting terms used
herein or in any other Loan Document shall be interpreted, all accounting determinations and
computations hereunder or thereunder shall be made, and all financial statements required to be
delivered hereunder or thereunder shall be prepared in accordance with, those generally accepted
accounting principles in effect in the United States of America from time to time (“GAAP”).
Notwithstanding the foregoing, if the Borrower, the Required Banks or the Agent determines that a
change in GAAP from that in effect on the date hereof has altered the treatment of certain
financial data to its detriment under this Agreement, such party may seek of the others a
renegotiation of any financial covenant affected thereby. If the Borrower, the Required Banks and
Agent cannot agree on renegotiated covenants, then, for the purposes of this Agreement, GAAP will
refer to generally accepted accounting principles on the date just prior to the date on which the
change that gave rise to the renegotiation occurred.




(b) References herein to “fiscal year” and “fiscal quarter” refer to such fiscal
periods of the Borrower.



ARTICLE II




THE CREDITS




2.1 Amounts and Terms of Commitments.



(a) The Acquisition Credit. Each Bank severally agrees, on the terms and conditions
set forth herein, to make loans to the Borrower (each such loan, an “Acquisition Loan”) from time
to time on any Business Day during the period from the Closing Date to the Termination Date in an
aggregate principal amount not to exceed at any time outstanding the amount set forth opposite
such Bank’s name on Schedule 2.1, (such amount as the same may be reduced under
Section 2.5 or Section 2.7 or as reduced or increased as a result of one or more
assignments under Section 12.9, the Bank’s “Acquisition Commitment”). Within the limits of
each Bank’s Acquisition Commitment and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.1(a), prepay under Section 2.6 and
reborrow under this Section 2.1(a).



(b) The Revolving Credit. Each Bank severally agrees, on the terms and conditions set
forth herein, to make loans to the Borrower (each such loan, a “Revolving Loan”) from time to time
on any Business Day during the period from the Closing Date to the Termination Date, in an
aggregate principal amount not to exceed at any time outstanding the amount set forth opposite
such Bank’s name on Schedule 2.1 (such amount as the same may be reduced under Section
2.5 or Section 2.7 or reduced or increased as a result of one or more assignments
under Section 12.9, the Bank’s “Revolving Commitment”); provided, that after
giving effect to any Borrowing of Revolving Loans, the Effective Amount of all outstanding
Revolving Loans plus the Effective Amount of all L/C Obligations plus the Effective Amount of all
Swing Line Loans shall not exceed the Revolving Commitments. Within the limits of each Bank’s
Revolving Commitment, and subject to the other terms and conditions hereof, the Borrower may
borrow under this Section 2.1 (b), prepay under Section 2.6 and reborrow under
this Section 2.1(b). As a subfacility of the
Banks’ Revolving Commitments, the Borrower may request the Issuing Bank to Issue Letters of
Credit from time to time pursuant to Article III. In
addition, the Borrower may request the Swing Line Bank to make Swing Line Loans to the Borrower
from time to time pursuant to Section 2.16.


 


- 30 -









 





2.2 Loan Accounts. (a) The Loans made by each Bank shall be evidenced by one or more
loan accounts or records maintained by such Bank in the ordinary course of business. Each Bank
will make reasonable efforts to maintain the accuracy of its loan account or accounts and to
update promptly its loan account or accounts from time to time, as necessary.



(b) The Agent shall maintain the Register pursuant to Section 12.9(d) and a loan
subaccount for each Bank, in which Register and loan subaccount (taken together) shall be recorded
(i) the date, amount, and Interest Period, if applicable, of each Loan, and whether such Loan is a
Base Rate Loan, a Eurodollar Rate Loan or a Swing Line Loan, (ii) the amount of any principal or
interest due and payable or to become due and payable to each Bank hereunder and (iii) the amount
of any sum received by the Agent hereunder from or for the loan account of the Borrower and each
Bank’s percentage share thereof. The Agent will make reasonable efforts to maintain the accuracy
of the subaccounts referred to in the preceding sentence and to update promptly such loan
subaccounts from time to time, as necessary.



(c) The entries made in the Register and loan subaccounts maintained pursuant to subsection
(b) of this Section 2.2, to the extent permitted by applicable law, shall be prima facie
evidence of the existence and amounts of such obligations of the Borrower therein recorded;
provided, however, that the failure of the Agent or any Bank to maintain any such
Register, loan subaccount or loan account, as applicable, or any error therein, shall not in any
manner affect the obligations of the Borrower to repay the Loans in accordance with the terms
thereof.



(d) Upon the request of any Bank made through the Agent, and at the expense of the Borrower,
the Loans made by such Bank may be evidenced by one or more Notes, instead of loan accounts. Each
such Bank shall endorse on the schedules annexed to its Note(s) the date, amount and maturity of
each Loan made by it and the amount of each payment of principal made by the Borrower with respect
thereto. Each such Bank is irrevocably authorized by the Borrower to so endorse its Note(s) and
each Bank’s record shall be rebuttable presumptive evidence of the amount of the Loans made by
such Bank to the Borrower and the interest and principal payments thereof; provided,
however, that the failure of a Bank to make, or an error in making, a notation thereon
with respect to any Loan shall not limit or otherwise affect the obligations of the Borrower
hereunder or under any such Note to pay any amount owing with respect to the Loans made by such
Bank.



(e) Each Bank represents that at no time shall any part of the funds used to make any Loan
constitute, or deemed under ERISA, the Code or any other applicable law, or any ruling or
regulation issued thereunder, or any court decision, to constitute, the assets of any employee
benefit plan (as defined in section 3(3) of ERISA) or any plan (as defined in section 4975(e)(1)
of the Code).


 


- 31 -









 





2.3 Procedure for Borrowing. (a) Each Borrowing of Loans (other than Swing Line
Loans) shall be made upon the Borrower’s irrevocable written notice delivered to the Agent in the
form of a Notice of Borrowing (which notice must be received by the Agent prior to
1:00 p.m.) (New York City time) (i) three Business Days prior to the requested Borrowing Date, in
the case of Eurodollar Rate Loans; and (ii) one Business Day prior to the requested Borrowing
Date, in the case of Base Rate Loans, specifying:




(A) the amount of the Borrowing, which shall be in an aggregate minimum amount
of $5,000,000 in the case of Eurodollar Rate Loans or $1,000,000 in the case of Base
Rate Loans, or any multiple of $1,000,000 in excess thereof; provided,
however, that the Borrower may request (x) up to two Borrowings of Base Rate
Loans in a minimum amount of $500,000 in any fiscal quarter and (y) Borrowings of
Base Rate Loans in such amount as is necessary to pay to the Agent the amounts
required by the last sentence of Section 2.13(a);




(B) the requested Borrowing Date, which shall be a Business Day;




(C) the Type of Loans comprising the Borrowing;




(D) whether the Loans comprising the Borrowing shall be Acquisition Loans or
Revolving Loans and, if the Loans comprising the Borrowing shall be Acquisition
Loans, whether the Acquisition Loans comprising the Borrowing shall be Specified
Acquisition Loans; and




(E) other than in the case of Base Rate Loans, the duration of the Interest
Period applicable to the Loans included in such notice. If the Notice of Borrowing
fails to specify the duration of the Interest Period for any Borrowing comprised of
Eurodollar Rate Loans, such Interest Period shall be one month.



provided, however, that with respect to any Borrowing to be made on the Closing Date, the Notice
of Borrowing shall be delivered to the Agent no later than 10:00 a.m. (New York City time) on the
Closing Date and such Borrowing will consist of Base Rate Loans only.



(b) The Agent will promptly notify each Bank of its receipt of any Notice of Borrowing (or a
deemed notice of Borrowing under Section 2.16(c)(ii)) and of the amount of such Bank’s Pro
Rata Share of that Borrowing.



(c) Each Bank will make the amount of its Pro Rata Share of each Borrowing available to the
Agent for the account of the Borrower at the Agent’s Payment Office by 1:00 p.m. (New York City
time) on the Borrowing Date requested by the Borrower in funds immediately available to the Agent.
The proceeds of all such Loans will then be made available to the Borrower by the Agent on the
Borrowing Date by crediting the Borrower’s Account with the aggregate of such amounts made
available to the Agent by the Banks and in like funds as received by the Agent.



(d) After giving effect to any Borrowing, there may not be more than ten different Interest
Periods in effect.


 


- 32 -









 





2.4 Conversion and Continuation Elections. (a) The Borrower may, upon irrevocable
written notice to the Agent in accordance with Section 2.4(b):



(i) elect, as of any Business Day, in the case of Base Rate Loans, or as of the last day of
the applicable Interest Period, in the case of Eurodollar Rate Loans, to convert any such Loans
(or any part thereof in an amount not less than $5,000,000 in the case of a conversion to a
Eurodollar Rate Loan or $1,000,000 in the case of a conversion to a Base Rate Loan, or that is in
an integral multiple of $1,000,000 in excess thereof) into Loans of the other Type; or



(ii) elect, as of the last day of the applicable Interest Period, to continue as Eurodollar
Rate Loans any Eurodollar Rate Loans having Interest Periods expiring on such day (or any part
thereof in an amount not less than $5,000,000, or that is in an integral multiple of $1,000,000 in
excess thereof);



provided, that if at any time the aggregate amount of Eurodollar Rate Loans in respect of
any Borrowing is reduced, by payment, prepayment, or conversion of part thereof to be less than
$5,000,000, such Eurodollar Rate Loans shall automatically convert into Base Rate Loans, and on
and after such date the right of the Borrower to continue such Loans as, and convert such Loans
into, Eurodollar Rate Loans shall terminate.



(b) The Borrower shall deliver a Notice of Conversion/Continuation to be received by the
Agent not later than 1:00 p.m. (New York City time) (i) three Business Days in advance of the
Conversion/Continuation Date, if the Loans are to be converted into or continued as Eurodollar
Rate Loans; and (ii) one Business Day in advance of the Conversion/Continuation Date, if the Loans
are to be converted into Base Rate Loans, specifying:




(A) the proposed Conversion/Continuation Date;




(B) the aggregate amount of Loans to be converted or continued;




(C) the Type of Loans resulting from the proposed conversion or continuation;
and




(D) other than in the case of conversions into Base Rate Loans, the duration of
the requested Interest Period.



(c) If upon the expiration of any Interest Period, the Borrower has failed to select timely a
new Interest Period to be applicable to the Eurodollar Rate Loans having the expired Interest
Period or if any Default or Event of Default then exists, the Borrower shall be deemed to have
elected to convert such Eurodollar Rate Loans into Base Rate Loans effective as of the expiration
date of such Interest Period.



(d) The Agent will promptly notify each Bank of its receipt of a Notice of
Conversion/Continuation, or, if no timely notice is provided by the Borrower, the Agent will
promptly notify each Bank of the details of any automatic conversion. All conversions and
continuations shall be made ratably according to the respective outstanding principal amounts of
the Loans with respect to which the notice was given held by each Bank.


 


- 33 -









 





(e) Unless the Required Banks otherwise agree, during the existence of a Default or unless
all the Banks otherwise agree, during the existence of an Event of Default, the Borrower may not
elect to have a Loan converted into or continued as a Eurodollar Rate Loan.



(f) After giving effect to any conversion or continuation of Loans, there may not be more
than ten different Interest Periods in effect.



2.5 Voluntary Termination or Reduction of Commitments. The Borrower may, upon prior
notice to the Agent no later than 11:00 a.m. (New York City time) two Business Days’ prior to a
proposed termination, terminate the Revolving Commitments or the Acquisition Commitments, or
permanently reduce the Commitments by an aggregate minimum amount of $3,000,000 or any multiple of
$1,000,000 in excess thereof; unless, after giving effect thereto and to any prepayments of Loans
made on the effective date thereof subject to Sections 2.6 and 4_4, (a) the then Effective
Amount of all Revolving Loans and Swing Line Loans plus the then Effective Amount of all L/C
Obligations would exceed the amount of the Revolving Commitments then in effect or (b) the then
Effective Amount of all outstanding Acquisition Loans would exceed the amount of the Acquisition
Commitments then in effect. Once received, any notice delivered by the Borrower to the Agent under
this Section 2.5 shall be irrevocable. Once reduced in accordance with this Section
2.5, the Commitments may not be increased. Any reduction of the Commitments shall be applied
to each Bank according to its Pro Rata Share. All accrued facility fees to, but not including, the
effective date of any reduction or termination of Commitments, shall be paid on the last day of
each calendar quarter and the effective date of any such termination. The Agent will promptly
notify each Bank of its receipt of a notice under this Section 2.5.




2.6 Optional Prepayments.



(a) Subject to Section 4.4, the Borrower may, upon notice to the Agent, at any time
or from time to time voluntarily prepay Loans (other than Swing Line Loans) in whole or in part
without premium or penalty; provided that such notice must be received by the Agent not
later than 1:00 p.m. (New York City time) (A) three Business Days prior to any date of prepayment
of Eurodollar Rate Loans and (B) on the date of prepayment of Base Rate Loans. Such notice of
prepayment shall be irrevocable and specify the date and amount of such prepayment and the Type(s)
of Loans to be prepaid and whether the Loans to be prepaid are Acquisition Loans or Revolving
Loans. The Agent will promptly notify each Bank of its receipt of any such notice, and of such
Bank’s Pro Rata Share of such prepayment. If such notice is given by the Borrower, the Borrower
shall make such prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein, together with, in the case of Eurodollar Rate Loans,
accrued interest to such date on the amount prepaid and any amounts required pursuant to
Section 4.4; provided, that no amount of any optional prepayment under this Section
2.6(a) may be applied to the Revolving Loans unless and until all Specified Acquisition Loans
have been paid in full.



(b) The Borrower may, upon notice to the Swing Line Bank (with a copy to the Agent), at any
time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium
or penalty; provided that (i) such notice must be received by the Swing Line Bank and the
Agent not later than 1:00 p.m. (New York City time) on the date of the
prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each
such notice shall be irrevocable and shall specify the date and amount of such prepayment. If such
notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein.


 


- 34 -









 






2.7 Mandatory Prepayments of Loans; Mandatory Commitment Reductions.



(a) Asset Sales. In the event that any Asset Sale results in Excess Sale Proceeds
which are not applied as provided in Section 8.8(c)(ii)(B)(x), an amount equal to the
Banks’ pro rata share of the aggregate principal amount of Senior Indebtedness (calculated prior
to the application of any mandatory prepayments resulting from such Asset Sale to such other
Senior Indebtedness) then outstanding (assuming, with respect to revolving debt, that the maximum
commitment amount is outstanding) times the amount of such Excess Sale Proceeds shall be paid to
the Agent for application to the Obligations in accordance with this Section
2.7(a). Amounts received by the Agent pursuant to this Section 2.7(a) shall be
applied first to outstanding amounts under the Acquisition Commitments, then to outstanding
amounts under the Revolving Commitments. Such prepayments shall be allocated among the Banks
according to their respective Pro Rata Shares. The Acquisition Commitments and Revolving
Commitments shall be permanently reduced by the amount of such prepayments applied to outstanding
principal amounts thereunder, and any such reduction shall be applied to each Bank according to
its Pro Rata Share. If the amount of such Excess Sale Proceeds applicable to payment to the Banks
hereunder exceeds the amount of the outstandings under the Commitments, the Commitments shall be
permanently reduced by such excess, by reduction, first to the Acquisition Commitments and then to
the Revolving Commitments, and any such reduction shall be applied to each Bank in accordance with
its Pro Rata Share.



(b) Excess Outstandings. If on any date the Effective Amount of L/C Obligations
exceeds the L/C Commitment, the Borrower shall Cash Collateralize on such date the outstanding
Letters of Credit in an amount equal to the excess of the maximum amount then available to be
drawn under the Letters of Credit over the L/C Commitment. Subject to Section 4.4, if on
any date after giving effect to any Cash Collateralization made on such date pursuant to the
preceding sentence (i) the Effective Amount of all Revolving Loans and L/C Obligations exceeds the
Revolving Commitments or (ii) the Effective Amount of all Acquisition Loans exceeds the
Acquisition Commitments, then the Borrower shall immediately, and without notice or demand, prepay
the outstanding principal amount of the Revolving Loans, L/C Advances and/or Acquisition Loans, by
an amount equal to such excess.



2.8 Repayment. (a) Generally. The Borrower shall repay to the Agent, for the
benefit of the Banks, in full on the Termination Date the aggregate principal amount of Revolving
Loans outstanding on such date, together with all accrued and unpaid interest thereon and the
aggregate principal amount of Acquisition Loans outstanding on such date, together with all
accrued and unpaid interest thereon.



(b) Swing Line Loans. The Borrower shall repay to the Agent, for the benefit of the
Swing Line Bank, in full the aggregate principal amount of each Swing Line Loan, together with all
accrued and unpaid interest thereon, upon the earlier of (a) 5 calendar days
following the date on which such Swing Line Loan was funded by the Swing Line Bank and (b) the
Termination Date.


 


- 35 -









 





2.9 Interest. (a) Each Loan (other than Swing Line Loans) shall bear interest on the
outstanding principal amount thereof from the applicable Borrowing Date at a rate per annum equal
to the Eurodollar Rate or the Base Rate, as the case may be (and subject to the Borrower’s right to
convert to the other Type of Loan under Section 2.4), plus the Applicable Margin. Each
Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable
Borrowing Date at a rate per annum equal to the Swing Line Rate.



(b) Interest on each Loan shall be paid in arrears on each Interest Payment Date. Interest
shall also be paid on the date of any prepayment of Eurodollar Rate Loans under Section 2.6
or 2.7 for the portion of the Loans so prepaid and upon payment (including prepayment) in full
thereof and, during the existence of any Event of Default, interest shall be paid on demand of the
Agent at the request or with the consent of the Required Banks. Interest on each Swing Line Loan
shall be for the sole account of the Swing Line Bank (except to the extent the other Banks have
funded the purchase of participations therein pursuant to subsection 2.16(c)).



(c) Notwithstanding subsection (a) of this Section, if any amount of principal of or
interest on any Loan, or any other amount payable hereunder or under any other Loan Document is not
paid in full when due (whether at stated maturity, by acceleration, demand or otherwise), the
Borrower agrees to pay interest on such unpaid principal or other amount, from the date such amount
becomes due to the date such amount is paid in full, and after as well as before any entry of
judgment thereon to the extent permitted by law, payable on demand (but not more frequently than
once per week), at a fluctuating rate per annum equal to the Base Rate plus 2%.



(d) Anything herein to the contrary notwithstanding, the obligations of the Borrower hereunder
shall be subject to the limitation that payments of interest shall not be required for any period
for which interest is computed hereunder, to the extent (but only to the extent) that contracting
for or receiving such payment would be contrary to the provisions of any applicable law limiting
the highest rate of interest that may be lawfully contracted for, charged or received by the Agent,
applicable Bank, Swing Line Bank or Issuing Bank, and in such event the Borrower shall pay such
Bank interest for such period at the highest rate permitted by applicable law.


 


- 36 -









 





2.10 Fees. (a) Arrangement, Agency Fees. The Borrower shall pay all fees as
required by the letter agreement (“Fee Letter”) among the Borrower, the Agent and Wachovia Capital
Markets, LLC dated July 17, 2006.



(b) Facility Fees. The Borrower shall pay on the last Business Day of each calendar
quarter to the Agent for the account of each Bank a facility fee on the daily average amount of (i)
such Bank’s Revolving Commitment (whether or not used) from the date hereof until the Termination
Date and (ii) such Bank’s Acquisition Commitment (whether or not used) from the date hereof until
the Termination Date, in each case at the rate per annum set forth below for each Pricing Tier as
such Pricing Tier is applicable:



	 	 	 	 	 	 	 
	Pricing Tier	 	Funded Debt Ratio	 	Margin	 
	 
	 	 	 	 	 	 
	I
	 	Less than or equal to 2.50x	 	 	0.250	%
	 
	 	 	 	 	 	 
	II
	 	Greater than 2.50x but less than or equal to 3.OOx	 	 	0.250	%
	 
	 	 	 	 	 	 
	III
	 	Greater than 3.OOx but less than or equal to 3.50x	 	 	0.300	%
	 
	 	 	 	 	 	 
	IV
	 	Greater than 3.50x	 	 	0.375	%






For the purpose of determining the applicable Pricing Tier pursuant to this Section 2.10(b)
and subject to the last sentence of this paragraph, EBITDA shall be determined as at the end of
each fiscal quarter for the four fiscal quarters then ending and Funded Debt shall be determined as
at the end of each fiscal quarter for which such calculation is being determined. Pricing changes
shall be effective on the later of (i) 45 days after the end of each of the first three fiscal
quarters of each fiscal year and 90 days after each fiscal year end and (ii) the Agent’s receipt of
financial statements hereunder for such fiscal quarter or fiscal year; provided,
however, that if the financial statements are not delivered when due in accordance with
Section 7.1, then Pricing Tier IV shall apply as of the first Business Day after the date
on which such financial statements were required to have been delivered until the date upon which
such financial statements are delivered to the Agent. For the period from the Closing Date through
December 31, 2006, the applicable Pricing Tier shall be Pricing Tier I.



2.11 Computation of Fees and Interest. (a) All computations of interest for Base Rate
Loans when the Base Rate is determined by the Prime Rate shall be made on the basis of a year of
365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and
interest shall be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis of a 365day year).
Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a
Loan, or any portion thereof, for the day on which the Loan or such portion is paid,
provided that any Loan that is repaid on the same day on which it is made shall bear
interest for one day.



(b) Each determination of an interest rate by the Agent shall be conclusive and binding on the
Borrower and the Banks in the absence of manifest error.



2.12 Payments by the Borrower. (a) All payments to be made by the Borrower shall be
made without set-off, recoupment or counterclaim. Except as otherwise expressly provided herein,
all payments by the Borrower shall be made to the Agent for the account of the Banks at the Agent’s
Payment Office, and shall be made in dollars and in immediately available funds, no later than 1:00
p.m. (New York City time) on the date specified herein. The Agent will promptly distribute to each
Bank its Pro Rata Share (or other applicable share as expressly provided herein) of such payment in
like funds as received. Any payment received by the Agent later than 1:00 p.m. (New York City time)
shall be deemed to have been received on the following Business Day and any applicable interest or
fee shall continue to accrue to such Business Day.


 


- 37 -









 





(b) Subject to the provisions set forth in the definition of “Interest Period” herein,
whenever any payment is due on a day other than a Business Day, such payment shall be made on the
following Business Day, and such extension of time shall in such case be included in the
computation of interest or fees, as the case may be.



(c) Unless the Agent receives notice from the Borrower prior to the date on which any payment
is due to the Banks that the Borrower will not make such payment in full as and when required, the
Agent may assume that the Borrower has made such payment in full to the Agent on such date in
immediately available funds and the Agent may (but shall not be so required), in reliance upon
such assumption, distribute to each Bank on such due date an amount equal to the amount then due
such Bank. If and to the extent the Borrower has not made such payment in full to the Agent, each
Bank shall repay to the Agent on demand such amount distributed to such Bank, together with
interest thereon at the Federal Funds Rate for each day from the date such amount is distributed
to such Bank until the date repaid.



2.13 Payments by the Banks to the Agent, etc. (a) Unless the Agent receives notice
from a Bank on or prior to the Closing Date or, with respect to any Borrowing after the Closing
Date, at least one Business Day prior to the date of such Borrowing, that such Bank will not make
available as and when required hereunder to the Agent for the account of the Borrower the amount
of that Bank’s Pro Rata Share of the Borrowing, the Agent may assume that each Bank has made or
will make such amount available to the Agent in immediately available funds on the Borrowing Date
and the Agent may (but shall not be so required), in reliance upon such assumption, make available
to the Borrower on such date a corresponding amount. If and to the extent any Bank shall not have
made the full amount of its Pro Rata Share of any Borrowing available to the Agent in immediately
available funds and the Agent in such circumstances has made available to the Borrower such
amount, that Bank shall on the Business Day following such Borrowing Date make such amount
available to the Agent, together with interest at the Federal Funds Rate for each day during such
period. A notice of the Agent submitted to any Bank with respect to amounts owing under this
subsection (a) shall be conclusive, absent manifest error. If such amount is so made
available, such payment to the Agent shall constitute such Bank’s Loan on the date of Borrowing
for all purposes of this Agreement. If such amount is not made available to the Agent on the
Business Day following the Borrowing Date, the Agent will notify the Borrower of such failure to
fund and, upon demand by the Agent, the Borrower shall pay such amount to the Agent for the
Agent’s account, together with interest thereon for each day elapsed since the date of such
Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Loans
comprising such Borrowing.



(b) The failure of any Bank to make any Loan on any Borrowing Date shall not relieve any
other Bank of any obligation hereunder to make a Loan on such Borrowing Date, but no Bank shall be
responsible for the failure of any other Bank to make the Loan to be made by such other Bank on
any Borrowing Date. No Bank shall be entitled to take any action to protect or enforce its rights
arising out of any Loan Document without the prior written consent of the Required Banks,
including the exercise, or attempt to exercise, any right of set-off, banker’s lien, or any
similar such action, against any deposit account or property of the Borrower held by any such
Bank.


 


- 38 -









 





2.14 Sharing of Payments, etc. If, other than as expressly provided elsewhere herein,
any Bank shall obtain on account of the Loans made by it, or the participations in L/C Obligations
or in Swing Line Loans held by it, any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise, except pursuant to Sections 2.15(b), 4.7,
12.1, and 12.9) in excess of its Pro Rata Share, such Bank shall immediately (a)
notify the Agent of such fact, and (b) purchase from the other Banks such participations in the
Loans made by them as shall be necessary to cause such purchasing Bank to share the excess payment
pro rata with each of them; provided, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Bank, such purchase shall to that extent be rescinded and
each other Bank shall repay to the purchasing Bank the purchase price paid therefor, together with
an amount equal to such paying Bank’s ratable share (according to the proportion of (i) the amount
of such paying Bank’s required repayment to (ii) the total amount so recovered from the purchasing
Bank) of any interest or other amount paid or payable by the purchasing Bank in respect of the
total amount so recovered. The Borrower agrees that any Bank so purchasing a participation from
another Bank may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 12.11) with respect to such
participation as fully as if such Bank were the direct creditor of the Borrower in the amount of
such participation. The Agent will keep records (which shall be conclusive and binding in the
absence of manifest error) of participations purchased under this Section and will in each case
notify the Banks following any such purchases or repayments.



2.15 Termination Date. (a) The Commitments shall terminate and each Bank shall be
relieved of its obligations to make any Loan on the Termination Date. The Borrower may from time
to time request an extension of the Termination Date for an additional one-year period by
executing and delivering to the Agent a Commitment Termination Date Extension Request at least 60
but not more than 90 days prior to the then scheduled Termination Date. The Termination Date shall
be so extended if the Agent shall have received from each Bank on or prior to the 30th day
preceding the then scheduled Termination Date a duly executed counterpart of such Commitment
Termination Date Extension Request. Each Bank may in its sole and absolute discretion withhold its
consent, or condition its consent, to any such Commitment Termination Date Extension Request.



(b) Notwithstanding the foregoing, if the Agent shall have received duly executed
counterparts of a Commitment Termination Date Extension Request from Banks representing, in the
aggregate, 80% or more of the Commitments, but less than 100% of the Commitments, on or prior to
the 30th day preceding the then scheduled Termination Date, the Agent shall so notify (the date of
such notice being the “Notice Date”) the Borrower, and the Borrower shall have the right to seek a
substitute bank or banks (the “New Banks”) which New Banks would meet the requirements to be
Eligible Assignees, acceptable to the Agent and the Borrower (which may be one or more of the
Banks) to replace the Bank or Banks which have not delivered a counterpart of such Commitment
Termination Date Extension Request by such time; provided, that such New Banks shall
replace such nonrenewing Banks on all such nonrenewing Banks’ Commitments, Loans, L/C Obligations
and L/C Advances, so the Pro Rata Share of any New Bank of the Acquisition Commitments, Revolving
Commitments, Loans, L/C Obligations and L/C Advances shall be the same. If any Termination Date
shall not have been extended pursuant to clause (a) above, the Borrower shall elect, by
delivering to the Agent at


 


- 39 -









 





least four Business Days’ prior to the then scheduled Termination Date
a written notice of election, either (i) not to extend such Termination Date, in which case such Termination Date shall not be so
extended for any Bank irrespective of whether such Bank has or has not sent its duly executed
counterpart of the Commitment Termination Date Extension Request or (ii) if the aggregate
Commitments of the Banks who have delivered duly executed counterparts of a Commitment Termination
Date Extension Request represent at least 80% of the Commitments, to extend such current
Termination Date, in which case (x) the Termination Date shall be extended for an additional
period of one year from the then scheduled Termination Date, and (y) the Commitments shall be
reduced on the then scheduled Termination Date to an amount equal to the aggregate of the
Commitments of the Banks who had delivered duly executed counterparts of a Commitment Termination
Date Extension Request on or prior to the 30th day preceding the then scheduled Termination Date,
plus the aggregate Commitments of the New Banks and (z) the Commitments shall be reduced on the
then scheduled Termination Date to an amount equal to (1) the aggregate of the Commitments of the
Banks who have delivered executed counterparts of a Commitment Termination Date Extension Request
on or prior to the 30th day preceding the then scheduled Termination Date plus (2) the aggregate
Commitments of the New Banks, and the Borrower shall pay (such payment to be made on such
Termination Date) in full all Revolving Loans and Acquisition Loans plus all accrued interest and
fees (including any amounts owed under Section 4.4) owing to each such non-renewing Bank
and each such nonrenewing Bank (to the extent that such Loans have not been acquired by the new
Banks) shall no longer have any Commitment for purposes of this Agreement and each other Loan
Document. If the Borrower shall not have delivered such a written notice of election to the Agent
on or prior to the then scheduled Termination Date, such Termination Date shall not be extended.




2.16 Swing Line Loans.




(a) The Swing Line. On the terms and subject to the conditions set forth in
Section 5.1 (in the case of any Swing Line Loan to be made on the Closing Date), Section
5.2
and this Section 2.16, the Swing Line Bank agrees to make loans (each such loan, a “Swing
Line Loan”) to the Borrower from time to time on any Business Day during the period from the
Closing Date to the Termination Date in an aggregate amount not to exceed at any time outstanding
the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when
aggregated with the Pro Rata Share of the Effective Amount of Revolving Loans and L/C Obligations
of the Bank acting as Swing Line Bank, may exceed the amount of the Swing Line Bank’s Revolving
Commitment; provided, however, that after giving effect to any Swing Line Loan,
(i) the aggregate Effective Amount of all Revolving Loans, all Swing Line Loans and all L/C
Obligations shall not exceed the Revolving Commitments of all the Banks, and (ii) the aggregate
Effective Amount of the Revolving Loans of any Bank, plus such Bank’s Pro Rata Share of
the Effective Amount of all L/C Obligations, plus such Bank’s Pro Rata Share of the
Effective Amount of all Swing Line Loans shall not exceed such Bank’s Revolving Commitment, and
provided, further, that the Borrower shall not use the proceeds of any Swing Line
Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the
other terms and conditions hereof, the Borrower may borrow under this Section 2.16, prepay
under Section 2.6, and reborrow under this Section 2.16. Each Swing Line Loan
shall bear interest at the Swing Line Rate. Immediately upon the making of a Swing Line Loan, each
Bank shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the
Swing Line Bank a risk participation in such Swing Line Loan in an amount equal to the product of
such Bank’s Pro Rata Share times the amount of such Swing Line Loan.


 


- 40 -









 





(b) Borrowing Procedures. Each Borrowing of Swing Line Loans shall be made upon the
Borrower’s irrevocable notice to the Swing Line Bank and the Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Bank and the Agent not later than
1:00 p.m. (New York City time) on the requested borrowing date, and shall specify (i) the amount to
be borrowed, which shall be a minimum of $1,000,000 or any multiple of $1,000,000 in excess thereof
and (ii) the requested borrowing date, which shall be a Business Day. Each such telephonic notice
must be confirmed promptly by delivery to the Swing Line Bank and the Agent of a written Notice of
Borrowing, appropriately completed and signed by a Responsible Officer of the Borrower. Promptly
after receipt by the Swing Line Bank of any telephonic notice of borrowing of Swing Line Loans, the
Swing Line Bank will confirm with the Agent (by telephone or in writing) that the Agent has also
received such notice of borrowing and, if not, the Swing Line Bank will notify the Agent (by
telephone or in writing) of the contents thereof. Unless the Swing Line Bank (x) has received
notice (by telephone or in writing) from the Agent (including at the request of any Bank) prior to
2:00 p.m. (New York City time) on the date of the proposed Borrowing (A) directing the Swing Line
Bank not to make such Swing Line Loan as a result of the limitations set forth in the proviso to
the first sentence of Section 2.16(a), or (B) that one or more of the applicable conditions
specified in Article V is not then satisfied, then, subject to the terms and conditions
hereof, the Swing Line Bank will, not later than 3:00 p.m. (New York City time) on the borrowing
date specified in such Notice of Borrowing, make the amount of its Swing Line Loan available to the
Borrower.




(c) Refinancing of Swing Line Loans.



(i) The Swing Line Bank at any time in its sole and absolute discretion may request, on behalf
of the Borrower (which hereby irrevocably authorizes the Swing Line Bank to so request on its
behalf), that each Bank make a Loan (which Loan shall bear interest at the Swing Line Rate or such
other rate that the applicable Swing Line Loans then bear) in an amount equal to such Bank’s Pro
Rata Share of the amount of Swing Line Loans then outstanding. Such request shall be made in
writing (which written request shall be deemed to be a Notice of Borrowing for purposes hereof) and
in accordance with the requirements of Section 2_3, without regard to the minimum and
multiples specified therein. The Swing Line Bank shall furnish the Borrower with a copy of the
applicable Notice of Borrowing promptly after delivering such notice to the Agent. Each Bank shall
make an amount equal to its Pro Rata Share of the amount specified in such Notice of Borrowing
available to the Agent in immediately available funds for the account of the Swing Line Bank at the
Agent’s Office not later than 1:00 p.m. (New York City time) on the day specified in such Notice of
Borrowing, whereupon, subject to Section 2.16(c)(ii), each Bank that so makes funds
available shall be deemed to have made a Loan to the Borrower in such amount. The Agent shall remit
the funds so received to the Swing Line Bank.



(ii) If for any reason any Swing Line Loan cannot be refinanced by such a Borrowing in
accordance with Section 2.16(c)(i), the request for Loans submitted by the Swing Line Bank
as set forth herein shall be deemed to be a request by the Swing Line Bank that each of the Banks
fund its risk participation in the relevant Swing Line Loan and each Bank’s payment to the Agent
for the account of the Swing Line Bank pursuant to Section 2.16(c)(i) shall be deemed
payment in respect of such participation.


 


- 41 -









 





(iii) If any Bank fails to make available to the Agent for the account of the Swing Line Bank
any amount required to be paid by such Bank pursuant to the foregoing provisions of this
Section 2.16(c) by the time specified in Section 2.16(c)(i), the Swing Line Bank
shall be entitled to recover from such Bank (acting through the Agent), on demand, such amount with
interest thereon for the period from the date such payment is required to the date on which such
payment is immediately available to the Swing Line Bank at a rate per annum equal to the Federal
Funds Rate from time to time in effect. A certificate of the Swing Line Bank submitted to any Bank
(through the Agent) with respect to any amounts owing under this clause
(iii) shall be conclusive absent manifest error.



(iv) Each Bank’s obligation to make Loans or to purchase and fund risk participations in Swing
Line Loans pursuant to this Section 2.16(c) shall be absolute and unconditional and shall
not be affected by any circumstance, including (A) any set-off, counterclaim, recoupment, defense
or other right which such Bank may have against the Swing Line Bank, the Borrower or any other
Person for any reason whatsoever, (B) the occurrence or continuance of a Default or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing; provided,
however, that each Bank’s obligation to make Loans pursuant to this Section 2.16(c)
is subject to the conditions that the Swing Line Loan was made by the Swing Line Bank in accordance
with Sections 2.16(a) and 2.16(b). No such funding of risk participations shall
relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans, together with
interest as provided herein.



(d) Repayment of Participations.



(i) At any time after any Bank has purchased and funded a risk participation in a Swing Line
Loan, if the Swing Line Bank receives any payment on account of such Swing Line Loan, the Swing
Line Bank will distribute to such Bank its Pro Rata Share of such payment (appropriately adjusted,
in the case of interest payments, to reflect the period of time during which such Bank’s risk
participation was funded) in the same funds as those received by the Swing Line Bank.



(ii) If any payment received by the Swing Line Bank in respect of principal or interest on any
Swing Line Loan is required to be returned by the Swing Line Bank under any of the circumstances
described in Section 12.7 (including pursuant to any settlement entered into by the Swing
Line Bank in its discretion), each Bank shall pay to the Swing Line Bank its Pro Rata Share thereof
on demand of the Agent, plus interest thereon from the date of such demand to the date such amount
is returned, at a rate per annum equal to the Federal Funds Rate. The Agent will make such demand
upon the request of the Swing Line Bank.



(e) Interest for Account of Swing Line Bank. The Swing Line Bank shall be responsible
for invoicing the Borrower for interest on the Swing Line Loans. Until each Bank funds its Loan or
risk participation pursuant to this Section 2.16 to refinance such Bank’s Pro Rata Share of
any Swing Line Loan, interest in respect of such Pro Rata Share shall be solely for the account of
the Swing Line Bank.



(f) Payments Directly to Swing Line Bank. The Borrower shall make all payments of
principal and interest in respect of the Swing Line Loans to the Agent for the benefit of the Swing
Line Bank.


 


- 42 -









 





ARTICLE III




THE LETTERS OF CREDIT




3.1 The Letter of Credit Subfacility. (a) On the terms and subject to the conditions
set forth herein (i) the Issuing Bank agrees, in reliance upon the agreements of the other Banks
set forth in this Article III, (A) from time to time on any Business Day during the period
from the Closing Date to the L/C Termination Date to issue Letters of Credit for the account of the
Borrower, and to amend or renew, extend the expiration of or increase the amount of Letters of
Credit previously issued by it, in accordance with Sections 3.2(c) and 3.2(d), and
(B) to honor drafts under the Letters of Credit; and (ii) the Banks severally agree to participate
in Letters of Credit Issued for the account of the Borrower; provided, that the Issuing
Bank shall not be obligated to Issue, and no Bank shall be obligated to participate in, any Letter
of Credit if as of the date of Issuance of such Letter of Credit (the “Issuance Date”) (x) the
Effective Amount of all L/C Obligations plus the Effective Amount of all Revolving Loans plus the
Effective Amount of all Swing Line Loans exceeds the amount of the Revolving Commitment or (y) the
Effective Amount of all L/C Obligations exceeds $100,000,000. Within the foregoing limits, and
subject to the other terms and conditions hereof, the Borrower’s ability to obtain Letters of
Credit shall be fully revolving, and, accordingly, the Borrower may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit which have expired or which have been drawn
upon and reimbursed. The Existing Letters of Credit shall be deemed to have been issued pursuant
hereto, and from and after the Closing Date shall be subject to and governed by the terms and
conditions hereof.




(b) The Issuing Bank shall not Issue any Letter of Credit if:



(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its
terms purport to enjoin or restrain the Issuing Bank from Issuing such Letter of Credit, or any
Requirement of Law applicable to the Issuing Bank or any request or directive (whether or not
having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank
shall prohibit, or request that the Issuing Bank refrain from, the Issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon the Issuing Bank with respect
to such Letter of Credit any restriction, reserve or capital requirement (for which the Issuing
Bank is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose
upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the
Closing Date and which the Issuing Bank in good faith deems material to it;



(ii) the Issuing Bank has received written notice from any Bank, the Agent or the Borrower, on
or prior to the Business Day prior to the requested date of Issuance of such Letter of Credit, that
one or more of the applicable conditions contained in Article V is not then satisfied;


 


- 43 -









 





(iii) the expiry date of any requested Letter of Credit is (A) more than twelve months after
the date of Issuance, unless the Required Banks have approved such expiry date in writing, or (B)
after the L/C Termination Date, unless the Agent, the Issuing Bank and all of the Banks have
approved such expiry date in writing;



(iv) any requested Letter of Credit is now otherwise in form and substance acceptable to the
Issuing Bank, or the Issuance of a Letter of Credit shall violate any applicable policies of the
Issuing Bank;



(v) such Letter of Credit is in a face amount less than $500,000 or to be denominated in a
currency other than Dollars.



3.2 Issuance, Amendment and Renewal of Letters of Credit. (a) Each Letter of Credit
shall be issued upon the irrevocable written request of the Borrower received by the Issuing Bank
(with a copy sent by the Borrower to the Agent) not later than 11:00 a.m. (New York City time) at
least two Business Days (or such shorter time as the Issuing Bank may agree in a particular
instance in its sole discretion) prior to the proposed date of issuance. Each such request for
issuance of a Letter of Credit shall be by facsimile, confirmed promptly in an original writing,
in the form of an L/C Application, appropriately completed and signed by a Responsible Officer of
the Borrower, and shall specify in form and detail satisfactory to the Issuing Bank: (i) the
proposed date of issuance of the Letter of Credit (which shall be a Business Day); (ii) the face
amount of the Letter of Credit; (iii) the expiry date of the Letter of Credit; (iv) the name and
address of the beneficiary thereof; (v) the documents to be presented by the beneficiary of the
Letter of Credit in case of any drawing thereunder; (vi) the full text of any certificate to be
presented by the beneficiary in case of any drawing thereunder; and (vii) such other matters as
the Issuing Bank may require.



(b) Promptly after receipt of any L/C Application, the Issuing Bank will confirm with the
Agent (by telephone or in writing) that the Agent has received a copy of such L/C Application from
the Borrower and, if not, the Issuing Bank will provide the Agent with a copy thereof. Upon
receipt by the Issuing Bank of confirmation from the Agent that the requested issuance or
amendment is permitted in accordance with the terms hereof, then, subject to the terms and
conditions hereof, the Issuing Bank shall, on the requested date, issue a Letter of Credit for the
account of the Borrower or enter into the applicable amendment, as the case may be, in each case
in accordance with the Issuing Bank’s usual and customary business practices. Immediately upon the
Issuance of each Letter of Credit, each Bank shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Issuing Bank a risk participation in such Letter of
Credit in an amount equal to the product of such Bank’s Pro Rata Share times the amount of
such Letter of Credit.


 


- 44 -









 





(c) From time to time while a Letter of Credit is outstanding and prior to the L/C
Termination Date, the Issuing Bank will, upon the written request of the Borrower received by the
Issuing Bank (with a copy sent by the Borrower to the Agent) not later than 11:00 a.m. (New York
City time) at least two Business Days (or such shorter time as the Issuing Bank may agree in a
particular instance in its sole discretion) prior to the proposed date of amendment, amend any
Letter of Credit issued by it. Each such request for amendment of a Letter of Credit shall be made
by facsimile made in the form of an L/C Amendment Application and shall specify
in form and detail satisfactory to the Issuing Bank: (i) the Letter of Credit to be amended; (ii)
the proposed date of amendment of the Letter of Credit (which shall be a Business Day); (iii) the
nature of the proposed amendment; and (iv) such other matters as the Issuing Bank may reasonably
require. The Issuing Bank shall not amend any Letter of Credit if: (A) the Issuing Bank would have
no obligation at such time to issue such Letter of Credit in its amended form under the terms of
this Agreement; or (B) the beneficiary of any such Letter of Credit does not accept the proposed
amendment to the Letter of Credit. The Agent will promptly notify the Banks of the receipt by it
of any L/C Application or L/C Amendment Application.



(d) If the Borrower so requests in any applicable L/C Application, the Issuing Bank may, in
its sole and absolute discretion, agree to issue a Letter of Credit that has automatic renewal
provisions (each, an “Auto-Renewal Letter of Credit”); provided that any such AutoRenewal
Letter of Credit must permit the Issuing Bank to prevent any such renewal at least once in each
twelve month period (commencing with the date of issuance of such Letter of Credit) by giving
prior notice to the beneficiary thereof not later than a day in each such twelve month period (the
“Nonrenewal Notice Date”) to be agreed upon at the time such Letter of Credit is issued. Unless
otherwise directed by the Issuing Bank, the Borrower shall not be required to make a specific
request to the Issuing Bank for any such renewal. Once an Auto-Renewal Letter of Credit has been
issued, the Banks shall be deemed to have authorized (but may not require) the Issuing Bank to
permit the renewal of such Letter of Credit at any time to an expiry date not later than the L/C
Termination Date; provided, however, that the Issuing Bank shall not permit any
such renewal if (A) the Issuing Bank has determined that it would have no obligation at such time
to issue such Letter of Credit in its renewed form under the terms hereof (by reason of the
provisions of Section 3.1(b) or otherwise), or (B) it has received notice (which may be by
telephone or in writing) on or before the day that is two Business Days before the Nonrenewal
Notice Date (1) from the Agent that the Required Banks have elected not to permit such renewal or
(2) from the Agent, any Bank or the Borrower that one or more of the applicable conditions
specified in Section 5.2 is not then satisfied.



(e) The Issuing Bank may, at its election (or as required by the Agent at the direction of
the Required Banks), deliver any notices of termination or other communications to any Letter of
Credit beneficiary or transferee, and take any other action as necessary or appropriate, at any
time and from time to time, in order to cause the expiry date of such Letter of Credit to be a
date not later than the L/C Termination Date.



(f) This
Agreement shall control in the event of any conflict with any L/C-Related Document
(other than any Letter of Credit).



(g) The Issuing Bank will also deliver to the Agent, concurrently or promptly following its
delivery of a Letter of Credit, or amendment to or renewal of a Letter of Credit, to an advising
bank or a beneficiary, a true and complete copy of each such Letter of Credit or amendment to or
renewal of a Letter of Credit.


 


- 45 -









 






3.3 Risk Participations, Drawings and Reimbursements.



(a) Immediately upon the Issuance of each Letter of Credit, each Bank shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the Issuing
Bank a participation in such Letter of Credit and each drawing thereunder in an amount equal to the
product of (i) the Pro Rata Share of such Bank times (ii) the maximum amount available to be drawn
under such Letter of Credit and the amount of each such drawing, respectively.



(b) In the event of any request for a drawing under a Letter of Credit by the beneficiary or
transferee thereof, the Issuing Bank will promptly notify the Borrower and the Agent. The Borrower
shall reimburse the Issuing Bank prior to 1:00 p.m. (New York City time), on each date that any
amount is paid by the Issuing Bank under any Letter of Credit (each such date, an “Honor Date”), in
an amount equal to the amount so paid by the Issuing Bank. In the event the Borrower fails to
reimburse the Issuing Bank for the full amount of any drawing under any Letter of Credit by 1:00
p.m. (New York City time) on the Honor Date, the Issuing Bank will promptly notify the Agent and
the Agent will promptly notify each Bank thereof, and the Borrower shall be deemed to have
requested that Base Rate Loans be made by the Banks to be disbursed on the Honor Date under such
Letter of Credit, subject to the amount of the unutilized portion of the Revolving Commitment. Any
notice given by the Issuing Bank or the Agent pursuant to this Section 3.3(b) may be given
by telephone if immediately confirmed in writing (including by facsimile); provided, that
the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of
such notice.



(c) Each Bank shall upon any notice pursuant to Section 3.3(b) make available to the
Agent for the account of the Issuing Bank an amount in Dollars and in immediately available funds
equal to its Pro Rata Share of the amount of the drawing, whereupon the participating Banks shall
(subject to Section 3.3(e)) each be deemed to have made a Revolving Loan consisting of a
Base Rate Loan to the Borrower in that amount. The Agent shall remit the funds so received to the
Issuing. Bank. If any Bank so notified fails to make available to the Agent for the account of the
Issuing Bank the amount of such Bank’s Pro Rata Share of the amount of the drawing by no later than
3:00 p.m. (New York City time) on the Honor Date, then interest shall accrue on such Bank’s
obligation to make such payment, from the Honor Date to the date such Bank makes such payment, at a
rate per annum equal to the Federal Funds Rate in effect from time to time during such period. The
Agent will promptly give notice of the occurrence of the Honor Date, but failure of the Agent to
give any such notice in sufficient time to enable any Bank to effect such payment on such date
shall not relieve such Bank from its obligations under this Section 3.3 (other than the
obligation to pay interest for the period prior to the notice).



(d) With respect to any unreimbursed drawing that is not converted into Revolving Loans
consisting of Base Rate Loans to the Borrower in whole or in part for any reason, the Borrower
shall be deemed to have incurred from the Issuing Bank an L/C Borrowing in the amount of such
drawing, which L/C Borrowing shall be due and payable on demand (together with interest) and shall
bear interest at a rate per annum equal to the Base Rate plus 2%, and each Bank’s payment to the
Agent for the account of the Issuing Bank pursuant to Section 3.3(c) shall be deemed
payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance
from such Bank in satisfaction of its participation obligation under this Section 3.3.


 


- 46 -









 





(e) Each Bank’s obligation in accordance with this Agreement to make Revolving Loans or L/C
Advances to reimburse the Issuing Bank for amounts drawn under
Letters of Credit, as contemplated by this Section 3.3, shall be absolute and
unconditional and without recourse to the Issuing Bank and shall not be affected by any
circumstance, including (i) any set-off, counterclaim, recoupment, defense or other right which
such Bank may have against the Issuing Bank, the Borrower or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of a Default, an Event of Default or a Material
Adverse Effect; or (iii) any other occurrence, circumstance, happening, event or condition
whatsoever, whether or not similar to any of the foregoing; provided, however,
that each Bank’s obligation to make Revolving Loans under this Section 3.3 is subject to
the conditions set forth in Section 5.2 (other than delivery by the Borrower of a Notice
of Borrowing). No such making of an L/C Advance shall relieve or otherwise impair the obligation
of the Borrower to reimburse the Issuing Bank for the amount of any payment made by the Issuing
Bank under any Letter of Credit, together with interest as provided herein.



3.4 Repayment of Participations. (a) Upon (and only upon) receipt by the Agent for
the account of the Issuing Bank of immediately available funds from the Borrower (i) in
reimbursement of any payment made by the Issuing Bank under the Letter of Credit with respect to
which any Bank has paid the Agent for the account of the Issuing Bank for such Bank’s
participation in the Letter of Credit pursuant to Section 3.3 or (ii) in payment of
interest thereon, the Agent will pay to each Bank, in the same funds as those received by the
Agent for the account of the Issuing Bank, the amount of such Bank’s Pro Rata Share of such funds,
and the Issuing Bank shall receive the amount of the Pro Rata Share of such funds of any Bank that
did not so pay the Agent for the account of the Issuing Bank.



(b) If the Agent or the Issuing Bank is required at any time to return to the Borrower, or to
a trustee, receiver, liquidator, custodian, or any official in any Insolvency Proceeding, any
portion of the payments made by the Borrower to the Agent for the account of the Issuing Bank
pursuant to Section 3.4(a) in reimbursement of a payment made under any Letter of Credit
or interest or fee thereon, each Bank shall, on demand of the Agent, forthwith return to the Agent
for the account of the Issuing Bank the amount of its Pro Rata Share of any amounts so returned by
the Agent for the account of the Issuing Bank plus interest thereon from the date such demand is
made to the date such amounts are returned by such Bank to the Agent, at a rate per annum equal to
the Federal Funds Rate in effect from time to time.



3.5 Role of the Issuing Bank. (a) Each Bank and the Borrower agree that, in paying
any drawing under a Letter of Credit, the Issuing Bank shall not have any responsibility to obtain
any document (other than any sight draft, certificates and documents expressly required by the
Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document
or the authority of the Person executing or delivering any such document.



(b) None of the Issuing Bank, the Agent-Related Persons or any of the respective
correspondents, participants or assignees of the Issuing Bank or the Agent-Related Persons shall
be liable to any Bank for: (i) any action taken or omitted in connection herewith at the request
or with the approval of the Banks (including the Required Banks, as applicable); (ii) any action
taken or omitted in the absence of negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any L/C-Related Document.


 


- 47 -









 





(c) Except as otherwise provided in this clause (c), the Borrower hereby assumes all
risks of the acts or omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided, that this assumption is not intended to, and shall not,
preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the Issuing Bank, the Agent-Related Persons
or any of the respective correspondents, participants or assignees of the Issuing Bank or the
Agent-Related Persons shall be liable or responsible for any of the matters described in
clauses (i) through (vii) of Section 3.6; provided, that anything
in such clauses to the contrary notwithstanding, the Borrower may have a claim against the Issuing
Bank, and the Issuing Bank may be liable to the Borrower, to the extent, but only to the extent, of
any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the
Borrower proves were caused by the Issuing Bank’s willful misconduct or gross negligence or the
Issuing Bank’s willful failure to pay under any Letter of Credit after the presentation to it by
the beneficiary of a sight draft and certificate(s) strictly complying with the terms and
conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing: (i) the
Issuing Bank may accept documents that appear on their face to be in order, without responsibility
for further investigation, regardless of any notice or information to the contrary; and (ii) the
Issuing Bank shall not be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or
benefits thereunder or proceeds thereof’, in whole or in part, which may prove to be invalid or
ineffective for any reason.



3.6 Obligations Absolute. Subject to the proviso contained in the second sentence of
Section 3.5(c), the obligations of the Borrower under this Agreement and any L/C-Related
Document to reimburse the Issuing Bank for a drawing under a Letter of Credit, and to repay any L/C
Borrowing and any drawing under a Letter of Credit converted into Revolving Loans, shall be
unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement and each such other L/C-Related Document under all circumstances, including the
following:



(i) any lack of validity or enforceability of this Agreement or any L/C-Related Document;



(ii) any change in the time, manner or place of payment of, or in any other term of,
all or any of the obligations of the Borrower in respect of any Letter of Credit or any other
amendment or waiver of or any consent to departure from all or any of the L/C-Related Documents;



(iii) the existence of any claim, set-off, defense or other right that the Borrower may have
at any time against any beneficiary or any transferee of any Letter of Credit (or any Person for
whom any such beneficiary or any such transferee may be acting), the Issuing Bank or any other
Person, whether in connection with this Agreement, the transactions contemplated hereby or by the
L/C-Related Documents or any unrelated transaction;



(iv) any draft, demand, certificate or other document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under any Letter of
Credit;


 


- 48 -









 





(v) any payment by the Issuing Bank under any Letter of Credit against presentation of a
draft or certificate that does not strictly comply with the terms of any Letter of Credit; or any
payment made by the Issuing Bank under any Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any transferee of any
Letter of Credit, including any arising in connection with any Insolvency Proceeding;



(vi) any exchange, release or non-perfection of any collateral, or any release or amendment
or waiver of or consent to departure from any other guarantee, for all or any of the obligations
of the Borrower in respect of any Letter of Credit; or



(vii) any other circumstance or happening whatsoever, whether or not similar to any of the
foregoing, including any other circumstance that might otherwise constitute a defense available
to, or a discharge of, any Obligor or a guarantor.



The Borrower shall promptly examine a copy of each Letter of Credit and each amendment
thereto that is delivered to it and, in the event of any claim of noncompliance with the
Borrower’s instructions or other irregularity, the Borrower will promptly notify the Issuing Bank.
The Borrower shall be conclusively deemed to have waived any such claim against the Issuing Bank
and its correspondents unless such notice is given as aforesaid.



3.7 Cash Collateral Pledge. Upon the request of the Agent, (i) if the Issuing Bank
has honored any full or partial drawing request under any Letter of Credit which drawing has
resulted in an L/C Borrowing, or (ii) if, as of the Termination Date, any Letter of Credit may for
any reason remain outstanding and partially or wholly undrawn, the Borrower shall immediately Cash
Collateralize the then Effective Amount of all L/C Obligations (in an amount equal to such
Effective Amount determined as of the date of such L/C Borrowing or the Termination Date, as the
case may be). Cash collateral shall be maintained in blocked, non-interest bearing deposit
accounts at Wachovia.



3.8 Letter of Credit Fees. (a) The Borrower shall pay to the Agent for the account of
each Bank in accordance with its Pro Rata Share a Letter of Credit fee for each Letter of Credit
equal to the Applicable Margin for Revolving Loans consisting of Eurodollar Rate Loans
times the average daily maximum amount available to be drawn under such Letter of Credit
during the period of determination. Such letter of credit fees shall be computed on a quarterly
basis in arrears. If there is any change in the Applicable Margin during any quarter, the daily
maximum amount of each Letter of Credit shall be computed and multiplied by the Applicable Margin
separately for each period during such quarter that such Applicable Margin was in effect.



(b) The Borrower shall pay, to the Issuing Bank quarterly, a letter of credit fronting fee
for each Letter of Credit Issued by the Issuing Bank equal to 0.125% per annum times the
average daily maximum amount available to be drawn under such Letter of Credit, as computed by the
Agent.


 


- 49 -









 





(c) The letter of credit fees payable under Section 3.8(a) and the fronting fees
payable under Section 3.8(b) shall be due and payable on the last Business Day of each
calendar quarter, commencing with the first such date to occur after the Closing Date, on the
Termination Date and thereafter on demand.



(d) In addition, the Borrower shall pay directly to the Issuing Bank for its own account the
customary issuance, presentation, amendment and other processing fees, and other standard costs
and charges, of the Issuing Bank relating to letters of credit as from time to time in effect.
Such customary fees and standard costs and charges are due and payable on demand and are
nonrefundable.



3.9 Applicability of ISP98 and UCP. Unless otherwise expressly agreed by the Issuing
Bank and the Borrower when a Letter of Credit is issued (including any such agreement applicable
to the Existing Letters of Credit), (i) the rules of the “International Standby Practices 1998”
published by the Institute of International Banking Law & Practice (or such later version thereof
as may be in effect at the time of issuance) (the “ISP98”) shall apply to each standby Letter of
Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most
recently published by the International Chamber of Commerce (the “ICC’) at the time of issuance
(including the ICC decision published by the Commission on Banking Technique and Practice on April
6, 1998 regarding the European single currency (euro)) shall apply to each commercial Letter of
Credit.



3.10 Conflict with L/C Application. In the event of any conflict between the terms
hereof and the terms of any L/C Application, the terms hereof shall control.



ARTICLE IV




TAXES, YIELD PROTECTION AND ILLEGALITY




4.1 Taxes. (a) Except as provided in Section 4.1(c), any and all payments by
the Borrower to each Bank or the Agent under this Agreement and any other Loan Document shall be
made free and clear of, and without deduction or withholding for any Taxes. In addition, the
Borrower shall pay all Other Taxes.



(b) The Borrower agrees to indemnify and hold harmless each Bank and the Agent for the full
amount of Taxes or Other Taxes including any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section paid by the Bank or the Agent and any liability (including
penalties, interest, additions to tax and expenses arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted). Payment under this
indemnification shall be made within 30 days after the date the Bank or the Agent provides written
proof of payment of the related Taxes or Other Taxes to the Borrower. Such written proof shall be
conclusive absent manifest error.


 


- 50 -









 





(c) If the Borrower shall be required by law to deduct or withhold any Taxes or Other Taxes
from or in respect of any sum payable hereunder to any Bank or the Agent, then:



(i) the sum payable shall be increased as necessary so that after
making all required deductions and withholdings (including deductions and withholdings
applicable to additional sums payable under this Section) such Bank or the Agent, as the case may
be, receives an amount equal to the sum it would have received had no such deductions or
withholdings been made;



(ii) the Borrower shall make such deductions and withholdings;



(iii) the Borrower shall pay the full amount deducted or withheld to the relevant taxing
authority or other authority in accordance with applicable law; and



(iv) the Borrower shall also pay to each Bank or the Agent for the account of such Bank, at
the time interest is paid, all additional amounts which the respective Bank specifies as necessary
to preserve the after-tax yield the Bank would have received if such Taxes or Other Taxes had not
been imposed.



(d) Within 30 days after their receipt of a written request therefor by Agent, the Borrower
shall furnish the Agent the original or a certified copy of a receipt evidencing any payment by
the Borrower of Taxes or Other Taxes, or other evidence of payment satisfactory to the Agent.



(e) If the Borrower is required to pay additional amounts to any Bank or the Agent pursuant
to subsection (c) of this Section, then such Bank shall use reasonable efforts (consistent
with legal and regulatory restrictions) to change the jurisdiction of its Lending Office so as to
eliminate any such additional payment by the Borrower which may thereafter accrue, if such change
in the judgment of such Bank is not illegal or otherwise disadvantageous to such Bank.



(f) No Foreign Bank shall be entitled to claim that the provisions of this Section
4.1 apply to it with respect to Taxes unless such Foreign Bank shall have delivered to the
Agent and the Borrower, prior to the time that any payments are to be made under this Agreement to
such Foreign Bank, a properly completed (i) Treasury Form W-8ECI, specifying that the payments to
be received by such Foreign Bank pursuant to this Agreement are effectively connected with the
conduct of a United States trade or business or (ii) Treasury Form W-8BEN, specifying that the
payments to be received by such Foreign Bank pursuant to this Agreement are wholly exempt from
United States federal income tax pursuant to the provisions of an applicable income tax treaty
with the United States and, in either case, has otherwise complied with Section 10.13
hereof. Each Foreign Bank that shall have provided a Form W8ECI or a Form W-8BEN to the Agent and
the Borrower, if permitted by law, shall be required to provide the Borrower with a new form (also
showing no withholding) no later than 3 years from the date that it provided the original form to
the Agent and the Borrower in order to claim advantage of this Section 4.1 from and after
such time.



4.2 Illegality. (a) If the introduction after the date hereof of any Requirement of
Law, or any change after the date hereof in any Requirement of Law, or in the interpretation or
administration of any Requirement of Law, has made it unlawful, or that any central bank or other
Governmental Authority has asserted after the date hereof that it is unlawful, for any Bank or its
applicable Lending Office to make Eurodollar Rate Loans, then, on notice thereof by the Bank to
the Borrower through the Agent, any obligation of that Bank to make Eurodollar Rate
Loans shall be suspended until the Bank notifies the Agent and the Borrower that the circumstances
giving rise to such determination no longer exist.


 


- 51 -









 





(b) If it is unlawful for any Bank to maintain any Eurodollar Rate Loan, the Borrower shall,
upon receipt by the Borrower of notice of such fact and demand from such Bank (such notice to be
delivered through the Agent), prepay in full such Eurodollar Rate Loans of that Bank then
outstanding, together with interest accrued thereon, either on the last day of the Interest Period
thereof, if the Bank may lawfully continue to maintain such Eurodollar Rate Loans to such day, or
immediately, if the Bank may not lawfully continue to maintain such Eurodollar Rate Loan. If the
Borrower is required to so prepay any Eurodollar Rate Loan, then concurrently with such
prepayment, the Borrower shall borrow from the affected Bank, in the amount of such prepayment, a
Base Rate Loan.



(c) If the obligation of any Bank to make or maintain Eurodollar Rate Loans has been so
terminated or suspended, the Borrower may elect, by giving notice to the Bank through the Agent
that all Loans which would otherwise be made by the Bank as Eurodollar Rate Loans shall be instead
Base Rate Loans.



(d) Before giving any notice to the Agent under this Section, the affected Bank shall use
reasonable efforts (consistent with legal and regulatory restrictions) to change the jurisdiction
of its Lending Office with respect to its Eurodollar Rate Loans if such change will avoid the need
for giving such notice or making such demand and will not, in the judgment of the Bank, be illegal
or otherwise disadvantageous to the Bank.



4.3 Increased Costs and Reduction of Return. (a) If, due to either (i) the
introduction after the date hereof of, or any change after the date hereof (other than any change
by way of imposition of or increase in reserve requirements included in the calculation of the
Eurodollar Rate or in respect of the assessment rate payable by any Bank to the FDIC for insuring
U.S. deposits) in or in the interpretation of any law or regulation applicable to any Bank (other
than any such introduction or change announced prior to the date hereof) or (ii) the compliance by
any Bank with any guideline or request from any central bank or other Governmental Authority
(whether or not having the force of law) not in effect prior to the date hereof, there shall be
any increase in the cost to such Bank of agreeing to make or making, funding or maintaining any
Eurodollar Rate Loans, or participating in Letters of Credit, or, in the case of the Issuing Bank,
any increase in the cost to the Issuing Bank of agreeing to issue, issuing or maintaining any
Letter of Credit or of agreeing to make or making, funding or maintaining any unpaid drawing under
any Letter of Credit, then the Borrower shall be liable for, and shall from time to time, upon
demand (such demand to be delivered through the Agent), pay to the Agent for the account of such
Bank or the Issuing Bank, as the case may be, additional amounts as are sufficient to compensate
such Bank or the Issuing Bank, as the case may be, for such increased costs.


 


- 52 -









 





(b) If (i) the introduction of any Capital Adequacy Regulation, (ii) any change in any
Capital Adequacy Regulation, (iii) any change in the interpretation or administration of any
Capital Adequacy Regulation by any central bank or other Governmental Authority charged with the
interpretation or administration thereof, or (iv) compliance by any Bank (or its Lending Office)
or any corporation controlling the Bank with any Capital Adequacy Regulation, in each
case occurring after the date hereof, affects or would affect the amount of capital required or
expected to be maintained by the Bank or any corporation controlling the Bank and (taking into
consideration such Bank’s or such corporation’s commercially reasonable policies with respect to
capital adequacy and such Bank’s or such corporation’s desired return on capital) the amount of
such capital is increased as a consequence of its Commitment, loans, credits or obligations under
this Agreement, then, upon written demand of such Bank to the Borrower through the Agent, the
Borrower shall pay to the Agent for the account of such Bank, from time to time as specified by
the Bank or such controlling corporation, additional amounts sufficient to compensate the Bank for
such increase.



4.4 Funding Losses. Excluding losses or expenses incurred by a Bank pursuant to
Section 4.2 (other than in connection with Section 4.2(b)), the Borrower shall
reimburse each Bank and hold each Bank harmless from any loss or expense (but excluding in any
event all consequential or exemplary damages) which the Bank may sustain or incur as a consequence
of:



(a) the failure of the Borrower to make on a timely basis any payment of principal of any
Eurodollar Rate Loan;



(b) the failure of the Borrower to borrow, continue or convert into a Eurodollar Rate Loan
after the Borrower has given (or is deemed to have given) a Notice of Borrowing or a Notice of
Conversion/Continuation (except as a result of a breach by a Bank of its obligations hereunder);



(c) the failure of the Borrower to make any prepayment in accordance with any notice
delivered under Section 2.6;



(d) the repayment or prepayment (including pursuant to Sections 2.7 and
4.2(b)) or other payment (including after acceleration thereof) of a Eurodollar Rate Loan
on a day that is not the last day of the relevant Interest Period; or



(e) the automatic conversion under Section 2.4 of any Eurodollar Rate Loan to a Base
Rate Loan on a day that is not the last day of the relevant Interest Period;



including any such loss or expense arising from the liquidation or reemployment of funds obtained
by it to maintain its Eurodollar Rate Loans or from fees payable to terminate the deposits from
which such funds were obtained. For purposes of calculating amounts payable by the Borrower to the
Banks under this Section and under Section 4.3(a), each Eurodollar Rate Loan made by a
Bank (and each related reserve, special deposit or similar requirement) shall be conclusively
deemed to have been funded at the Eurodollar Base Rate used in determining the Eurodollar Rate for
such Eurodollar Rate Loan by matching deposit or other borrowing in the interbank eurodollar
market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate
Loan is in fact so funded. Each Bank shall exercise its reasonable efforts to minimize such
losses, costs and expenses, except that each Bank shall not be obligated to take any action to
reduce net balances due to its non-U.S. offices from its U.S. offices.


 


- 53 -









 





4.5 Inability to Determine Rates. If the Agent or the Required Banks determine that
for any reason adequate and reasonable means do not exist for determining the Eurodollar Rate for
any requested Interest Period with respect to a proposed Eurodollar Rate Loan, or that the
Eurodollar Rate applicable pursuant to Section 2.9(a) for any requested Interest Period
with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to
the Banks of funding such Loan, the Agent will promptly so notify the Borrower and each Bank.
Thereafter, the obligation of the Banks to make or maintain Eurodollar Rate Loans hereunder shall
be suspended until the Agent upon the instruction of the Required Banks revokes such notice in
writing. Upon receipt of such notice, the Borrower may revoke any Notice of Borrowing or Notice of
Conversion/Continuation then submitted by it. If the Borrower does not revoke such Notice, the
Banks shall make, convert or continue the Loans, as proposed by the Borrower, in the amount
specified in the applicable notice submitted by the Borrower, but such Loans shall be made,
converted or continued as Base Rate Loans instead of Eurodollar Rate Loans.



4.6 Certificates of Banks. Except as specifically provided in Section 4.1, any
Bank claiming reimbursement or compensation under this Article IV shall deliver to the
Borrower (with a copy to the Agent) a certificate setting forth in reasonable detail the amount
payable to the Bank hereunder and the circumstances giving rise to such claim, and such certificate
shall be prima facie evidence of the correctness thereof. Each Bank agrees to deliver such
certificate to the Borrower within reasonable time after it determines the additional amount
required to be paid under this Article IV; provided, however, that in no
event shall any Bank deliver such Certificate to the Borrower more than 180 days after any
vice-president of such Bank knows, or upon the discharge of such vice-president’s duties in the
ordinary course should have known, of the occurrence of an event giving rise to the additional
amount required to be paid in respect of this Article IV and if it fails to deliver such
Certificate within such 180 day period, the Borrower will not be obligated for any costs incurred
prior to 180 days before such notice. The Borrower shall pay such Bank the amount shown as due on
any such certificate timely delivered in accordance with the foregoing within ten days after its
receipt of the same; provided, however, that the Borrower shall not be required to
pay any amounts (other than with respect to Taxes under Section 4.1) which were due for any
period occurring more than 90 days prior to the Borrower’s receipt of such certificate (other than
periods with respect to which such costs or expenses are retroactively imposed). This Article
IV shall survive termination of this Agreement and payment of the outstanding Obligations.
Notwithstanding the foregoing provisions of this Article IV, the Borrower shall not be
liable for any increased cost pursuant to this Article IV if and to the extent that such
increased cost results from the change in any Bank’s Lending Office and such change (x) is made
solely in the discretion of such Bank and not required by any applicable Requirement of Law or
Governmental Authority, (y) is made for such Bank’s benefit and without any benefit to the
Borrower, and (z) results, at the time of such change, in an increased cost greater than that which
would have been incurred had the Bank not so changed its Lending Office. Each Bank shall use its
reasonable efforts to avoid or minimize increased costs under this Article IV unless, in
the sole opinion of such Bank, such action would adversely affect it.


 


- 54 -









 





4.7 Substitution of Banks. Upon the receipt by the Borrower from any Bank (an
“Affected Bank”) of a claim for compensation under Section 4.3, the Borrower may: (i)
request the Affected Bank to use its reasonable efforts to obtain a replacement bank or financial
institution satisfactory to the Borrower to acquire and assume all or a ratable part of all of such
Affected Bank’s Loans and Commitments (a “Replacement Bank”); (ii) request one or more of the other
Banks to acquire and assume all or part of such Affected Bank’s Loans and Commitments; or (iii)
designate a Replacement Bank. Any such designation of a Replacement
Bank under clause (i) or (iii) shall be subject to the prior written consent of the
Agent (which consent shall not be unreasonably withheld or delayed); provided, that any
Replacement Bank shall meet the requirements to be an Eligible Assignee and shall purchase the same
pro rata share of the Loans, L/C Obligations, L/C Borrowings and the Acquisition Commitment and the
Revolving Commitment and the replacement shall be made pursuant to an assignment subject to the
provisions of Section 12.9 and shall be an expense of the Borrower.




4.8 Survival. The agreements and obligations of the Borrower, the Agent and the
Banks in this Article IV shall survive the payment of all other Obligations.



ARTICLE V




CONDITIONS PRECEDENT




5.1 Conditions to Effectiveness. The effectiveness of this Agreement is subject to the
condition that the Agent shall have received all of the following, in form and substance
satisfactory to the Agent and each Bank, and in sufficient copies for each Bank:




(a) Loan Documents. This Agreement, the Subsidiary Guarantee and any
Notes requested by the Banks pursuant to Section 2.2(d), duly executed by each party
thereto.




(b) Resolutions; Incumbency.



(i) Copies of partnership authorizations for the Borrower and resolutions of the board of
directors of each of the General Partner, Petrolane and the Restricted Subsidiaries authorizing the
transactions contemplated hereby to which it is a party, certified as of the Closing Date by the
Secretary or an Assistant Secretary of such Person; and



(ii) A certificate of the Secretary or Assistant Secretary of each of the General Partner,
Petrolane and the Restricted Subsidiaries certifying the names and true signatures of its officers
authorized to execute, deliver and perform, as applicable, on behalf of such Person the Loan
Documents to which it is a party.



(c) Organization Documents; Good Standing. Each of the following
documents:



(i) the articles or certificate of incorporation and the bylaws of the General Partner and
Petrolane and the Certificate of Limited Partnership and the Partnership Agreement of the Borrower,
in each case as in effect on the Closing Date, certified by the Secretary or an Assistant Secretary
of the General Partner or Petrolane, as applicable, as of the Closing Date; and



(ii) a good standing certificate for Petrolane, the General Partner and the Borrower from the
Secretary of State (or similar, applicable Governmental Authority) of its state of incorporation or
organization, as applicable, and each other state where such Obligor is qualified to do business as
a foreign corporation, in each case as of a recent date (in no case earlier than 60 days prior to
the date hereof).


 


- 55 -









 





(d) Legal Opinions. An opinion of Morgan, Lewis & Bockius LLP, special counsel for
the Credit Parties, in form and substance reasonably satisfactory to the Agent and the Banks.



(e) Payment of Fees. Evidence of payment by the Borrower of all accrued and unpaid
fees, costs and expenses to the extent due and payable hereunder (subject to the limitations set
forth in Section 12.4) on the Closing Date to the Agent, the Arrangers and the Banks,
together with Attorney Costs of the Agent to the extent invoiced prior to or on the Closing Date,
plus such additional amounts of Attorney Costs as shall constitute the Agent’s reasonable estimate
by category of Attorney Costs incurred or to be incurred by it through the closing proceedings
(provided, that such estimate shall not thereafter preclude final settling of accounts between the
Borrower and the Agent) including any such costs, fees and expenses arising under or referenced in
Sections 2.10 and 12.4.



(f) Ownership. UGI shall own indirectly more than 40% of the partnership interests of
the Borrower.



(g) Certificate. A certificate signed by a Responsible Officer, dated as of the
Closing Date, stating that:



(i) the representations and warranties contained in Article VI of this Agreement and
in the other Loan Documents, are true and correct in all material respects on and as of such date,
as though made on and as of such date except to the extent that such representations and
warranties expressly relate to an earlier time or date, in which case such representations and
warranties shall have been true and correct in all material respects as of such earlier time or
date;



(ii) there has occurred since June 30, 2006, no event or circumstance that has resulted in,
or presents a reasonable likelihood of having, a Material Adverse Effect;




(iii) no Default of Event of Default shall exist; and




(iv) the condition set forth in clause (f) above shall have been
satisfied.



(h) Existing Credit Agreement. On or prior to the Closing Date, the Existing Credit
Agreement shall have been paid in full (including, interest, fees and other amounts owing
thereunder) and all commitments thereunder shall have been irrevocably terminated.



(i) Compliance Certificate. A Compliance Certificate for the fiscal quarter ending
June 30, 2006.



(j) Certified Documents. Copies of the following documents certified by the Secretary
or an Assistant Secretary of the General Partner or a certificate of the Secretary or an Assistant
Secretary stating that the following documents have not been amended, modified or terminated since
August 28, 2003:




(i) First Mortgage Note Agreements;




(ii) National Propane
Purchase Agreement; -




(iii) Columbia Purchase Agreement;




(iv) Intercompany Loan Agreement;




(v) Intercompany Note; and




(vi) Keep Well Agreement.


 


- 56 -









 





(k) Release of Liens,. Evidence that the “Collateral Agent” has released
the liens securing the “Parity Debt” and terminated each of the “Security Documents” other than
the Collateral Agency Agreement (which shall survive only for limited purposes)(as each term is
defined in the Collateral Agency Agreement).



(1) Other Documents. Such other approvals, opinions, documents or materials as the
Agent or any Bank may reasonably request.



At the request of the Borrower or any Bank, the Agent will confirm in writing to the
Banks, with a copy to the Borrower, whether, and to what extent, the conditions have been
fulfilled.



5.2 Conditions to All Borrowings. The obligation of each Bank to make any Loan
(including its initial Loan), the obligation of the Issuing Bank to Issue any Letter of Credit
(including the initial Letter of Credit) and the obligation of the Swing Line Bank to make any
Swing Line Loan (including the initial Swing Line Loan) is subject to the satisfaction of the
following conditions precedent on or prior to the relevant Borrowing Date or Issuance Date:



(a) Notice of Borrowing. The Agent shall have received a Notice of Borrowing; or in
the case of any Issuance of any Letter of Credit, the Issuing Bank and the Agent shall have
received an L/C Application or L/C Amendment Application, as required under Section 3.2.



(b) Continuation of Representations and Warranties. The representations and
warranties in Article VI shall be true and correct in all material respects on and as of
such Borrowing Date or Issuance Date, with the same effect as if made on and as of such Borrowing
Date or Issuance Date (except to the extent such representations and warranties expressly relate
to an earlier time or date, in which case they shall have been true and correct in all material
respects as of such earlier time or date);



(c) No Existing Default. No Default or Event of Default shall exist or shall result
from such Borrowing or Issuance; and



(d) Specified Acquisition Loans. If a Specified Acquisition Loan is requested by the
Borrower, the sum of (i) the Effective Amount of the Revolving Loans and (ii) the Effective Amount
of the L/C Obligations shall be equal to the Revolving Commitment.



Each Notice of Borrowing, L/C Application or L/C Amendment Application submitted or deemed
submitted by the Borrower hereunder shall constitute a representation and warranty by the Borrower
hereunder, as of the date of each such notice and as of each Borrowing Date and Issuance Date that
the conditions in Section 5.2 are satisfied.





 


- 57 -









 







ARTICLE VI




REPRESENTATIONS AND WARRANTIES




The Borrower represents and warrants to the Agent and each Bank as set forth below in
Sections 6.1 through 6.14 and Sections 6.17 through 6.23, Petrolane
represents and warrants to the Agent and each Bank as set forth below in Section 6.15 and
such other Sections of this Article VI that are expressly related to Petrolane, and the General
Partner represents and warrants to the Agent and each Bank as set forth below in Section
6.16 such other Sections of this Article VI that are expressly related to the General
Partner, that:



6.1 Organization, Standing, etc. The Borrower is a limited partnership duly organized,
validly existing and in good standing under the Delaware Revised Uniform Limited Partnership Act
and has all requisite partnership power and authority to own and operate its properties (including
without limitation its Assets), to conduct its business, to enter into this Agreement and such
other Loan Documents to which it is a party and to carry out the terms of this Agreement and such
other Loan Documents. Each Restricted Subsidiary is a corporation or limited partnership, as the
case may be, duly organized, validly existing and in good standing under the laws of its state of
incorporation or organization, as the case may be, and has all requisite corporate power and
authority to own and operate its properties (including without limitation its Assets), to conduct
its business and to execute and deliver the Loan Documents to which such Restricted Subsidiary is a
party and to carry out the terms of this Agreement and such other Loan Documents.



6.2 Partnership Interests and Subsidiaries. The sole general partner of the Borrower
is the General Partner, which on the Closing Date owns a 1.0101% general partnership interest in
the Borrower and is an indirect Wholly-Owned Subsidiary of UGI. On the Closing Date (a) the only
limited partner of the Borrower is the Public Partnership, which owns a 98.9899% limited
partnership interest in the Borrower, and (b) the Borrower does not have any partners other than
the General Partner and the Public Partnership. As of the Closing Date, the Borrower does not have
any Subsidiary other than as set forth on Schedule 6.2 or any Investments in any Person
(other than as set forth on Schedule 6.2 or Investments of the types described in
Section 8.4(a)).



6.3 Qualification; Corporate or Partnership Authorization. The Borrower is duly
qualified or registered and is in good standing as a foreign limited partnership for the
transaction of business, and each of the General Partner, Petrolane (except as permitted pursuant
to Section 7.9(f)) and the Restricted Subsidiaries is qualified or registered and
is in good standing as a foreign corporation or foreign limited partnership for the transaction of
business, in the states listed in Schedule 6.3, which are the only jurisdictions in which
the nature of their respective activities or the character of the properties they own, lease or use
makes such qualification or registration necessary as of the Closing Date and in which the failure
so to qualify or to be so registered as of the Closing Date would have a Material Adverse Effect.
Each of the Borrower, the General Partner and Petrolane has taken all necessary partnership action
or corporate action, as the case may be, to authorize the execution, delivery and performance by it
of this Agreement and other Loan Documents to which it is a party. Each Restricted Subsidiary has
taken all necessary corporate or partnership action, as the case may be, to authorize the
execution, delivery and performance by it of each of the Loan Documents to which it is a party.
Each of the




 


- 58 -











 




Borrower, the General Partner and Petrolane has duly executed and delivered each of this Agreement
and the other Loan Documents to which it is a party, and each of them constitutes the Borrower’s,
the General Partner’s or Petrolane’s, as the case may be, legal, valid and binding obligation
enforceable against it in accordance with its terms, except as such enforceability may be limited
by bankruptcy, insolvency, moratorium or similar laws affecting creditors’ rights generally. Each
Restricted Subsidiary has duly executed and delivered each of the Loan Documents to which it is a
party, and each of them constitutes such Restricted Subsidiary’s legal, valid and binding
obligation enforceable against it in accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, moratorium or similar laws affecting creditors’ rights
generally.



6.4 Financial Statements. The audited consolidated financial statements of the
Borrower and its consolidated Subsidiaries for the fiscal years ended September 30, 2005 and
September 30, 2004, and the unaudited balance sheet, statement of operations, statement of cash
flows and statement of partners capital of the Borrower and its consolidated Subsidiaries for the
fiscal period ended June 30, 2006, have been prepared in accordance with GAAP applied on a
consistent basis throughout the periods specified (except as described in the footnotes thereto)
and present fairly, in all material respects, the financial position of the Borrower as of the
respective dates specified (except for the absence of footnotes and subject to changes resulting
from normal year-end audit adjustments, in the case of unaudited financial statements).



6.5 Changes, etc. Except as contemplated by this Agreement or the other Loan
Documents, (a) for the period from June 30, 2006 to and including the Closing Date, none of the
Borrower and any of its Restricted Subsidiaries has incurred any material liabilities or
obligations, direct or contingent, nor entered into any material transaction, in each case other
than in the ordinary course of its business, and (b) since the date of the last financial
statements delivered pursuant to Section 6.4 or 7_l there has not been any material
adverse change in or effect on the financial condition or prospects of the Borrower or in the
Business or Assets. Since June 30, 2006, no Restricted Payment of any kind has been declared, paid
or made by the Borrower other than Restricted Payments permitted by Section 8.5.



6.6 Tax Returns and Payments. Each of the Borrower, the General Partner, Petrolane
and the Restricted Subsidiaries has filed all material tax returns required by law to be filed by
it or has properly filed for extensions of time for the filing thereof, and has paid all material
taxes, assessments and other governmental charges levied upon it or any of its properties, assets,
income or franchises which are shown to be due on such returns, other than those which are not
past due or are presently being contested in good faith by appropriate proceedings diligently
conducted for which such reserves or other appropriate provisions, if any, as shall be required by
GAAP have been made. The Borrower is a limited partnership and so long as it is a limited
partnership it will be treated as a pass-through entity for U.S. federal income tax purposes and
as of the Closing Date is not subject to taxation with respect to its income or gross receipts
under applicable state (other than Michigan, New Hampshire, Tennessee, Washington, Kentucky and
Wisconsin) laws.


 


- 59 -









 





6.7 Indebtedness. As of the Closing Date, none of the Borrower, the General Partner,
Petrolane, Borrower and its respective Subsidiaries has any secured or unsecured Indebtedness
outstanding, except as set forth in Schedule 6.7 and other than the Indebtedness
represented by this Agreement, the other Loan Documents and the First Mortgage Notes. As of the
Closing Date, no instrument or agreement to which the Borrower or any of its Subsidiaries is a
party or by which the Borrower or any such Subsidiary is bound (other than this Agreement and the
agreements governing the First Mortgage Notes and other than as indicated in Schedule 6.7)
contains any restriction on the incurrence by the Borrower or any of its Subsidiaries of
additional Indebtedness.



6.8 Title to Properties. (a) As of the Closing Date, except as set forth in Schedule
6.8(a), each of the Borrower and its Subsidiaries is in possession of, and operating in compliance
in all material respects with, all franchises, grants, authorizations, approvals, licenses,
permits (other than permits required by Environmental Laws), easements, rights-of-way, consents,
certificates and orders (collectively, the “Permits”) required (i) to own, lease or use its
properties (including without limitation to own, lease or use its Assets) and (ii) considering all
such Permits in the possession of, and complied with by, the General Partner, Petrolane, the
Borrower and its Subsidiaries taken together, to permit the conduct of the Business as now
conducted and proposed to be conducted, except for those Permits (collectively, the “Routine
Permits”) (x) which are routine or administrative in nature and are expected in the reasonable
judgment of the Borrower to be obtained or given in the ordinary course of business after the
Closing Date, or (y) which, if not obtained or given, would not, individually or in the aggregate,
present a reasonable likelihood of having a Material Adverse Effect.



(b) Each of the Borrower and its Subsidiaries has good, marketable and legal title to, or a
valid leasehold interest in, its respective assets. There are no Liens against any assets of the
Borrower, any Subsidiary or any other Credit Party except for those Liens expressly permitted
under Section 8.3.



6.9 Litigation, etc. As of the date hereof and the Closing Date, there is no action,
proceeding or investigation pending or, to the knowledge of the Borrower upon reasonable inquiry,
threatened against the Borrower, Petrolane, the Public Partnership, the General Partner or any of
their respective Subsidiaries, and there is no action proceeding or investigation pending or, to
the knowledge of the Borrower upon reasonable inquiry, threatened against the Borrower or its
Restricted Subsidiaries, (a) which questions the validity or enforceability of this Agreement, the
other Loan Documents or any action taken or to be taken pursuant to this Agreement or the other
Loan Documents, or (b) except as set forth in Schedule 6.9, which would present a
reasonable likelihood of having, either in any case or in the aggregate, a Material Adverse
Effect.



6.10 Compliance with Other Instruments, etc. (a) On the Closing Date, none of the
Borrower, the General Partner, Petrolane or any of their respective Subsidiaries will be in
violation of (i) any provision of its certificate or articles of incorporation or other
Organization Documents, (ii) any provision of any agreement or instrument to which it is a party
or by which any of its properties is bound, including, without limitation the First Mortgage Note
Agreements, or (iii) 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, except (in the case of clauses (ii) and (iii) above only) for such
violations which would not, individually or in the aggregate, present a reasonable likelihood of
having a Material Adverse Effect. Neither
the General Partner nor the Public Partnership is in violation of any provision of the Partnership
Agreement.


 


- 60 -









 





(b) The execution, delivery and performance by each of the Borrower, the General Partner,
Petrolane and the Restricted Subsidiaries of this Agreement and the other Loan Documents to which
it is a party, the completion of the transactions contemplated by this Agreement will not, and the
release of the Liens securing the Parity Debt (as defined in the Collateral Agency Agreement) did
not (i) violate (x) any provision of the Partnership Agreement or the certificate or articles of
incorporation or other Organization Documents of the Borrower, 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 Borrower,
the General Partner, Petrolane or any of their respective Subsidiaries is a party or by which any
of its properties is bound, including, without limitation the First Mortgage Note Agreements,
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
Borrower to create) any Lien not permitted by Section 8.3.



6.11 Governmental Consent. Except as expressly contemplated by this Agreement and the
other Loan Documents, and 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 Agreement or the other Loan Documents to which the Borrower or any
of the Restricted Subsidiaries, Petrolane or the General Partner is a party, and (ii) no such
consent, approval, authorization, declaration or filing is required for the making of Loans or
Issuing Letters of Credit pursuant to this Agreement.



6.12 Investment Company Act. None of the Borrower, Petrolane or the General Partner is
an “investment company”, or a company “controlled” by an “investment company”, within the meaning
of the Investment Company Act of 1940, as amended.



6.13 [Reserved]



6.14 [Reserved]



6.15 Matters Relating to Petrolane. (a) As of the Closing Date, Petrolane is a
Wholly-Owned Subsidiary of the General Partner, has no Subsidiaries and owns an approximate 14%
limited partnership interest in the Public Partnership.



(b) Except as permitted by Section 7.9(f), Petrolane is a corporation duly organized,
validly existing and in good standing under the laws of the Commonwealth of Pennsylvania and has
all requisite corporate power and authority to own and operate its properties, to conduct its
business and to execute and deliver this Agreement and such other Loan Documents to which Petrolane
is a party and to carry out the terms of this Agreement and such other Loan Documents.


 


- 61 -









 





6.16 Matters Relating to the General Partner. (a) As of the Closing Date, the General
Partner is a Wholly Owned Subsidiary of AmeriGas, Inc., a Pennsylvania corporation, and owns,
in addition to the interest in the Borrower described in Section 6.2, (i) a 1% general
partnership interest in the Public Partnership, (ii) all of the outstanding shares of Capital
Stock of Petrolane and (iii) an approximate 30% limited partnership interest in the Public
Partnership. Other than AmeriGas Technology Group, Inc. and Petrolane, the General Partner has no
other direct Subsidiaries as of the Closing Date.



(b) The General Partner is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Pennsylvania and has all requisite corporate power
and authority to own and operate its properties, to act as the sole general partner of the
Borrower and to execute and deliver in its individual capacity and in its capacity as the sole
general partner of the Borrower this Agreement and such other Loan Documents to which the General
Partner is a party and to carry out the terms of this Agreement and such other Loan Documents.



6.17 ERISA Compliance. Except to the extent that any of the following would not,
either alone or together, present a reasonable likelihood of having a Material Adverse Effect: (i)
during the twelve-consecutive-month period prior to the date of the execution and delivery of this
Agreement and prior to the date of any Borrowing hereunder, no steps have been taken to terminate
any Pension Plan sponsored or maintained by any Obligor or any ERISA Affiliate of any Obligor,
(ii) no contribution failure has occurred with respect to any Pension Plan sponsored or maintained
by any Obligor or any ERISA Affiliate of any Obligor sufficient to give rise to a Lien under
section 302(f) of ERISA and (iii) with respect to each Pension Plan sponsored or maintained by any
Obligor or any ERISA Affiliate of any Obligor, none of the following events has occurred:
termination of the plan, failure to make a required contribution to the plan, failure to satisfy
the minimum funding standard for a year, request for a waiver of the minimum funding standard for
any year, withdrawal from a multiple employer plan, adoption of an amendment which results in a
funded current liability percentage of less than 60%, engaging in one or more prohibited
transactions, failure to comply with reporting and disclosure requirements or engaging in any
breach of fiduciary responsibility.



6.18 Use of Proceeds; Margin Regulations. The proceeds of the Loans are to be used
solely for the purposes set forth in and permitted by Section 8.9. None of the Borrower
and its Subsidiaries is generally engaged in the business of purchasing or selling Margin Stock or
extending credit for the purpose of purchasing or carrying Margin Stock.



6.19 Environmental Warranties. (a) Except as disclosed on Schedule 6.19 or
where non-compliance would not present a reasonable likelihood of having a Material Adverse
Effect, each of the Borrower and its Subsidiaries is in compliance with all Environmental Laws
applicable to it and to the Business or Assets. Except as disclosed on Schedule 6.19 or
where a reasonable likelihood of having a Material Adverse Effect would not be presented, the
Borrower and its Subsidiaries have obtained and are in compliance with all permits, licenses and
approvals required by Environmental Law. Except as disclosed in Schedule 6.19 or where the
failure to timely and properly reapply would not present a reasonable likelihood of having a
Material Adverse Effect, the Borrower and its Subsidiaries have submitted timely and complete
applications to renew any expired or expiring Permits required by Environmental Law. Schedule
6.19 lists all notices from Federal, state or local Governmental Authorities or other Persons
received within the last five years of the date hereof by the Borrower and its
Subsidiaries, alleging or threatening any liability on the part of the Borrower or any of its
Subsidiaries, pursuant to any Environmental Law, that present a reasonable likelihood of having a
Material Adverse Effect. All reports, documents, or other submissions required by Environmental
Laws to be submitted by the Borrower to any Governmental Authority or Person have been filed by
the Borrower, except where the failure to file would not present a reasonable likelihood of having
a Material Adverse Effect.


 


- 62 -









 





(b) Except as disclosed in Schedule 6.19 or where a reasonable likelihood of having a
Material Adverse Effect would not be presented: (i) there is no Hazardous Substance present at any
of the real property currently owned or leased by the Borrower or any of its Subsidiaries, and to
the knowledge of the Borrower, there was no Hazardous Substance present at any of the real
property formerly owned or leased by the Borrower or any of its Subsidiaries during the period of
ownership or leasing by such Person; and (ii) with respect to such real property and subject to
the same knowledge and temporal qualifiers concerning Hazardous Substances with respect to
formerly owned or leased real properties, there has not occurred (x) any release, or to the
knowledge of the Borrower, any threatened release of a Hazardous Substance, or (y) any discharge
or, to the knowledge of the Borrower, threatened discharge of any Hazardous Substance into the
ground, surface, or navigable waters which violates any Federal, state, local or foreign laws,
rules or regulations concerning water pollution.



(c) Except as set forth in Schedule 6.19 or where a reasonable likelihood of having a
Material Adverse Effect would not be presented, none of the Borrower and its Subsidiaries has
disposed of, transported, or arranged for the transportation or disposal of any Hazardous
Substance where such disposal, transportation, or arrangement would give rise to liability
pursuant to CERCLA or any analogous state statute.



(d) Except as set forth in Schedule 6.19 or where a reasonable likelihood of having a
Material Adverse Effect would not be presented: (1) no lien has been asserted by any Governmental
Authority or person resulting from the use, spill, discharge, removal, or remediation of any
Hazardous Substance with respect to any real property currently owned or leased by the Borrower or
any of its Subsidiaries, and (2) to the knowledge of the Borrower, no such lien was asserted with
respect to any of the real property formerly owned or leased by the Borrower or any its
Subsidiaries during the period of ownership or leasing of the real property by such Person.



(e) Except as set forth in Schedule 6.19 or where a reasonable likelihood of having a
Material Adverse Effect would not be presented, (1) there are no underground storage tanks,
asbestos-containing materials, polychlorinated biphenyls, or urea formaldehyde insulation at any
of the real property currently owned or leased by the Borrower or any of its Subsidiaries in
violation of Environmental Law and (2) to the knowledge of the Borrower, there were no underground
storage tanks, asbestos-containing materials, polychlorinated biphenyls, or urea formaldehyde
insulation at any of the real property formerly owned or leased by the Borrower or any of its
Subsidiaries in violation of Environmental Law during the period of ownership or leasing of such
real property by such Person.



(f) Except as set forth in Schedule 6.19 or where a reasonable likelihood of having a
Material Adverse Effect would not be presented, propane has been used, handled and
stored by the Borrower and its Subsidiaries during the five year period ending on the Closing Date
in compliance with Environmental Laws.


 


- 63 -









 





6.20 Copyrights, Patents, Trademarks and Licenses, etc. Except to the extent that the
failure to do so would not present a reasonable likelihood of having a Material Adverse Effect,
the Borrower and the Restricted Subsidiaries own or are licensed or otherwise have the right to
use all of the patents, trademarks, service marks, trade names, copyrights, contractual
franchises, authorizations and other rights that are reasonably necessary for the operation of the
Business, without conflict with the rights of any other Person. To the best knowledge of the
Borrower, no slogan or other advertising device, product, process, method, substance, part or
other material now employed, or now contemplated to be employed, by the Borrower or any Restricted
Subsidiary infringes upon any rights held by any other Person, where such infringement would
present a reasonable likelihood of having a Material Adverse Effect. Except as specifically
disclosed in Schedule 6.20, no claim or litigation regarding any of the foregoing is
pending or to the knowledge of the Borrower threatened, and no patent, invention, device,
application, principle or any statute, law, rule, regulation, standard or code is pending or, to
the knowledge of the Borrower, proposed, which, in either case, would present a reasonable
likelihood of having a Material Adverse Effect.



6.21 Insurance. The Borrower and each of its Restricted Subsidiaries are in
compliance with the terms and conditions contained in Section 7.5(b) hereof.



6.22 Full Disclosure. None of the representations or warranties made by any Obligor
or the Restricted Subsidiaries in the Loan Documents as of the date such representations and
warranties are made or deemed made, and none of the statements contained in any document,
certificate or instrument furnished by or on behalf of any Obligor in connection with the Loan
Documents, as of the date of such document, instrument or certificate, contains any untrue
statement of a material fact or omits any material fact required to be stated therein or necessary
to make the statements made therein, in light of the circumstances under which they are made, not
misleading.



6.23 Defaults . No Obligor or Restricted Subsidiary is in material default nor has
any event or circumstance occurred which, but for the expiration of any applicable grace period or
the giving of notice, or both, would constitute a material default under any under any material
agreement or instrument to which any Obligor or any Restricted Subsidiary is a party or by which
any Obligor or any Restricted Subsidiary is bound, which default would result in a Material
Adverse Effect.



6.24 PPD/GP Debt Contributions. The aggregate amount of PPD/GP Debt Contributions
made by the Public Partnership and the General Partner to the Borrower during the period from
August 21, 2001 to the Closing Date is in excess of $105,000,000.



6.25 Foreign Assets Control. None of the Borrower, any Subsidiary or any Affiliate of
the Borrower: (i) is a Sanctioned Person, (ii) has any of its assets in Sanctioned Entities, or
(iii) derives any of its operating income from investments in, or transactions with, Sanctioned
Persons or Sanctioned Entities.


 


- 64 -









 





ARTICLE VII




AFFIRMATIVE COVENANTS




So long as any Bank shall have any Commitment hereunder, or any Loan or other Obligation
shall remain unpaid or unsatisfied, or any Letters of Credit shall remain outstanding unless the
Required Banks waive compliance in writing:



7.1 Information . (a) The Borrower will maintain, and will cause each of its
Subsidiaries to maintain, a system of accounting established and administered in accordance with
GAAP, and will accrue, and will cause each of its Subsidiaries to accrue, all such liabilities as
shall be required by GAAP.



(b) The Borrower will furnish or cause to be furnished to the Agent, on behalf of Banks, and,
except as set forth in Section 7.1(c) below, the Agent will promptly distribute to each
Bank at their respective addresses as set forth on Schedule 12.2 hereto, or such other
office as may be designated by the Agent and Banks from time to time:



(i) as soon as practicable, but in any event within 45 days after the end of each of the
first three quarterly fiscal periods in each fiscal year of the Borrower, consolidated and
consolidating balance sheets of the Borrower and its Subsidiaries (except, as to consolidating
balance sheets only, for inactive Subsidiaries) as at the end of such period and the related
consolidated (and, as to statements of income, consolidating, except for inactive Subsidiaries)
statements of income, partners’ capital and cash flows of the Borrower and its Subsidiaries for
such period and (in the case of the second and third quarterly periods) for the period from the
beginning of the current fiscal year to the end of such quarterly period, setting forth in each
case in comparative form the consolidated and, where applicable, consolidating figures for the
corresponding periods of the previous fiscal year, all in reasonable detail and certified by the
principal financial officer of the General Partner as presenting fairly, in all material respects,
the information contained therein (except for the absence of footnotes and subject to changes
resulting from normal year-end adjustments), in accordance with GAAP applied on a basis consistent
with prior fiscal periods except for inconsistencies resulting from changes in accounting
principles and methods agreed to by the Borrower’s independent accountants;



(ii) as soon as practicable, but in any event within 90 days after the end of each fiscal
year of the Borrower, consolidated and consolidating balance sheets of the Borrower and its
Subsidiaries (except, as to consolidating balance sheets only, for inactive Subsidiaries) as at
the end of such year and the related consolidated (and, as to statements of income, consolidating
except for inactive Subsidiaries) statements of income, partners’ capital and cash flows of the
Borrower and its Subsidiaries for such fiscal year, setting forth in each case in comparative form
the consolidated and, where applicable, consolidating figures for the previous fiscal year, all in
reasonable detail and (A) in the case of such consolidated financial statements, accompanied by a
report thereon of PricewaterhouseCoopers LLP or other independent public accountants of recognized
national standing selected by the Borrower, which report shall not be qualified with respect to
scope limitations imposed by the Borrower or any of its Restricted Subsidiaries or with respect to
accounting principles followed by the Borrower or any of its Restricted Subsidiaries not
in accordance with GAAP and



 


- 65 -









 







shall
state that such consolidated financial statements present fairly, in all material respects, the financial position
of the Borrower and its Subsidiaries as at the dates indicated and the results of their operations
and cash flows for the periods indicated in conformity with GAAP unless otherwise disclosed,
applied on a basis consistent with prior years, and that the audit by such accountants in
connection with such consolidated financial statements has been made in accordance with generally
accepted auditing standards then in effect in the United States, and (B) in the case of such
consolidated and consolidating financial statements, certified by the principal financial officer
of the General Partner as presenting fairly, in all material respects, the information contained
therein (except, in the case of such consolidating financial statements, for the absence of
footnotes), in accordance with GAAP (the items in subsections 01 and (ii) of this
Section 7.1(b), the “Borrower Financials”);



(iii) together with each delivery of financial statements of the Borrower pursuant to
subsections CD and (ii) of this Section 7.1(b), a Compliance Certificate of the
Borrower (A) stating that the signers have reviewed the terms of this Agreement and the other Loan
Documents and have made, or caused to be made under their supervision, a review in reasonable
detail of the transactions and condition of the Borrower and its Subsidiaries during the
accounting period covered by such financial statements, and that the signers do not have knowledge
of the existence and continuance as at the date of such Compliance Certificate of any Default or
Event of Default, or, if any of the signers have knowledge that any Default or Event of Default
then exists, specifying the nature and approximate period of existence thereof and what action the
Borrower has taken or is taking or proposes to take with respect thereto, (B) specifying the
amount available at the end of such accounting period for Restricted Payments in compliance with
Section 8.5 and showing in reasonable detail all calculations required in arriving at such amount,
(C) demonstrating in reasonable detail compliance at the end of such accounting period with the
restrictions contained in Section 8.1 (the last paragraph), Sections 8.1(b),
(f), (k) and (f, Section 8.2, Section 8.4(c), Section
8.4(h), Section 8.5, Section 8.8(a)(ii), Section 8.8(a)(iii),
Section 8.8(c)(ii) (calculation of Excess Sale Proceeds), Section 8.13,
Section 8.14, Section 8.15, Section 8.16 and Sections 8.18(a),
(b) and (d), (iv) calculating the applicable Pricing Tier, (v) if not specified in
the related financial statements being delivered pursuant to subsections and (ii) of
Section 7.1(b), specifying the aggregate amount of interest paid or accrued by, and
aggregate rental expenses of, the Borrower and its Subsidiaries, and the aggregate amount of
depreciation, depletion and amortization charged on the books of the Borrower and its
Subsidiaries, during the fiscal period covered by such financial statements, and (vi) if at the
time of the delivery of such financial statements the Borrower shall have any Unrestricted
Subsidiaries, setting forth therein (or in an accompanying schedule) the adjustments required to
be made to indicate the consolidated financial position, cash flows and results of operations of
the Borrower and the Restricted Subsidiaries without regard to the financial position, cash flows
or results of operations of such Unrestricted Subsidiaries;



(iv) together with each delivery of consolidated financial statements of the Borrower
pursuant to subsection (ii) of this Section 7.1(b), a written statement by the independent
public accountants giving the report thereon stating that they have reviewed the terms of this
Agreement and the other Loan Documents and that, in making the audit necessary for the
certification of such financial statements, they have obtained no knowledge of the existence and
continuance as at the date of such written statement of any Default or Event of Default, or, if
they have obtained knowledge that any Default or Event of Default then exists,
specifying, to the extent possible, the nature and approximate period of the existence thereof
(such accountants, however, shall not be liable to anyone by reason of their failure to obtain
knowledge of any Default or Event of Default which would not be disclosed in the course of an
audit conducted in accordance with generally accepted auditing standards then in effect in the
United States);


 


- 66 -









 





(v) promptly following the receipt and timely review thereof by the Borrower, copies of all
reports submitted to the Borrower by independent public accountants in connection with each
special, annual or interim audit of the books of the Borrower or any Subsidiary thereof made by
such accountants, including without limitation the comment letter submitted by each such
accountant to management in connection with their annual audit;



(vi) promptly upon their becoming publicly available, copies of (A) all financial statements,
reports, notices and proxy statements sent or made available by the Borrower or the Public
Partnership to any of its security holders in compliance with the Exchange Act, or any comparable
Federal or state laws relating to the disclosure by any Person of information to its security
holders, (B) all regular and periodic reports and all registration statements and prospectuses
filed by the Borrower or the Public Partnership with any securities exchange or with the
Securities and Exchange Commission or any governmental authority succeeding to any of its
functions (other than registration statements on Form S-8 and Annual Reports on Form 10-R), (C)
all press releases and other similar written statements made available by the Borrower or the
Public Partnership to the public concerning material developments in the business of the Borrower
or the Public Partnership, as the case may be and (D) all reports, notices and other similar
written statements sent or made available by the Borrower or the Public Partnership to any holder
of its Indebtedness pursuant to the terms of any agreement, indenture or other instrument
evidencing such Indebtedness, including without limitation the First Mortgage Notes and the Public
Partnership Indenture, except to the extent the same substantive information is already being sent
to the Agent;



(vii) as soon as reasonably practicable, and in any event within five Business Days after a
Responsible Officer obtains knowledge that any Default or Event of Default or any event of default
under the First Mortgage Note Agreements has occurred, a written statement of such Responsible
Officer setting forth details of such Default or Event of Default or event of default and the
action which the Borrower has taken, is taking and proposes to take with respect thereto;



(viii) as soon as reasonably practicable, and in any event within five Business Days after a
Responsible Officer obtains knowledge of (A) the occurrence of an adverse development with respect
to any litigation or proceeding involving the Borrower or any of its Subsidiaries which in the
reasonable judgment of the Borrower presents a reasonable likelihood of having a Material Adverse
Effect or (B) the commencement of any litigation or proceeding involving the Borrower or any of
its Subsidiaries which in the reasonable judgment of the Borrower presents a reasonable likelihood
of having a Material Adverse Effect, a written notice of such Responsible Officer describing in
reasonable detail such commencement of, or adverse development with respect to, such litigation or
proceeding;


 


- 67 -









 





(ix) as soon as reasonably practicable, and in any event within five Business Days after a
responsible officer of any Obligor becomes aware of the occurrence or existence of any of the
events or conditions specified below, and such event or condition has resulted in, or in the
opinion of the principal financial officer of the General Partner might reasonably be expected to
result in, a Material Adverse Effect: (A) the institution of any steps by any Obligor or any other
Person to terminate any Pension Plan sponsored or maintained by an Obligor or any ERISA Affiliate
of any Obligor, (B) the failure to make a required contribution to any Pension Plan sponsored or
maintained by any Obligor if such failure is sufficient to give rise to a Lien under section 302(f)
of ERISA, or (C) if any of the subsequently listed events have occurred with respect to any Pension
Plan sponsored or maintained by any Obligor, or any ERISA Affiliate of any Obligor, the occurrence
of termination of the plan, failure to make a required contribution to the plan, failure to satisfy
the minimum funding standard for a year, request for a waiver of the minimum funding standard for
any year, withdrawal from a multiple employer plan, adoption of an amendment which results in a
funded current liability percentage of less than 60%, engaging in one or more prohibited
transactions, failure to comply with reporting and disclosure requirements or engaging in any
breach of fiduciary responsibility, notice thereof and copies of all documentation relating
thereto;



(x) within 15 days after being approved by the governing body of the Borrower, and in any
event no later than November 15th each fiscal year, an annual operating forecast for the next
fiscal year;



(xi) as soon as reasonably practicable, and in any event within five Business Days after a
Responsible Officer obtains knowledge of a violation or alleged violation of Environmental Law or
the presence or release of any Hazardous Substance within, on, from, relating to or affecting any
property, which in the reasonable judgment of the Borrower presents a reasonable likelihood of
having a Material Adverse Effect, provide notice thereof, and upon request, copies of relevant
documentation, provided, however, no such notice is required with respect to matters disclosed in
Schedule 6.19 or matters with respect to which notice has previously been provided pursuant
to this Section 7.1(b)(xi);



(xii) from time to time and promptly upon each request, information identifying the Borrower
as a Bank may request in order to comply with the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)); and



(xiii) with reasonable promptness, such other information and data (financial or other) with
respect to the Obligors or any of their Subsidiaries as from time to time may be reasonably
requested by the Agent or any Bank.



(c) (i) The Borrower may deliver documents, materials and other information required to be
delivered pursuant to Sections 7.1.(b)(i), 7.1(b)(ii) and 7.1(b)(iv)
(collectively, “Information”) in an electronic format acceptable to the Agent by e-mailing any such
Information to an e-mail address of the Agent as specified by the Agent from time to time. The
Agent may deliver such information to the Banks by posting such Information on the Borrower’s
behalf on an internet or intranet website to which each Bank and the Agent has access, whether a
commercial, third-party website (such as Intralinks or SyndTrak) or a website sponsored by the
Agent (the “Platform”).




 


- 68 -









 







(ii) In addition, the Borrower may deliver Information required to be delivered pursuant to
Sections 7.1(b)(i), 7.1(b)(ii), and 7.1(b)(vi) by posting any such
Information to the Borrower’s internet website (as of the date hereof, www.amerigas.com).
Any such Information provided in such manner shall only be deemed to have been delivered to the
Agent or a Bank (A) on the date on which the Agent or such Bank, as applicable, receives notice
from the Borrower that such Information has been posted to the Borrower’s internet website and (B)
only if such Information is publicly available without charge on such website. If for any reason,
the Agent or a Bank either did not receive such notice or after reasonable efforts was unable to
access such website, then the Agent or such Bank, as applicable, shall not be deemed to have
received such Information. In addition to any manner permitted by Section 12.2, the
Borrower may notify the Agent or a Bank that Information has been posted to such a website by
causing an e-mail notification to be sent to an e-mail address specified from time to time by the
Agent or such Bank, as applicable.



(iii) Notwithstanding anything in this Section to the contrary (A) the Borrower shall deliver
paper copies of Information to the Agent or any Bank that requests the Borrower to deliver such
paper copies until a written request to cease delivering paper copies is given to the Borrower by
the Agent or such Bank and (B) in every instance the Borrower shall be required to provide to the
Agent a paper original of the Compliance Certificate required by Section 7.1(b)(iii).



(iv) The Borrower acknowledges and agrees that the Agent may make Information, as well as any
other written information, reports, data, certificates, documents, instruments, agreements and
other materials relating to the Borrower, any Subsidiary or any other Credit Party or any other
materials or matters relating to this Agreement, any of the other Loan Documents or any of the
transactions contemplated by the Loan Documents, in each case to the extent that the Agent’s
communication thereof to the Banks is otherwise permitted hereunder (collectively, the
“Communications”) available to the Banks by posting the same on the Platform. The Borrower
acknowledges that (A) the distribution of material through an electronic medium, such as the
Platform, is not necessarily secure and that there are confidentiality and other risks associated
with such distribution, (B) the Platform is provided “as is” and “as available” and (C) neither the
Agent nor any of its affiliates warrants the accuracy, adequacy or completeness of the
Communications or the Platform and each expressly disclaims liability for errors or omissions in
the Communications or the Platform.



(v) The Agent shall have no obligation to request the delivery or to maintain copies of any of
the Information or other materials referred to above, and in no event shall have any responsibility
to monitor compliance by the Borrower with any such requests. Each Bank shall be solely responsible
for requesting delivery to it or maintaining its copies of such Information or other materials.



7.2 Adequate Reserves. The Borrower will, and will cause each of its Restricted
Subsidiaries to maintain, overall reserves on their respective books and records in accordance with
GAAP, which overall reserves shall be adequate in the opinion of the management of the Borrower and
each Restricted Subsidiary for the purposes for which they were established.


 


- 69 -









 





7.3 Partnership or Corporate Existence; Business; Compliance with Laws. (a) Except as
otherwise expressly permitted in accordance with Section 8.7 or 8_8, (i) the Borrower will
at all times preserve and keep in full force and effect its partnership existence and its status as
a partnership not taxable as a corporation, (ii) the Borrower will cause each of the Restricted
Subsidiaries to keep in full force and effect its partnership or corporate existence and (iii) the
Borrower will, and will cause each Restricted Subsidiary to, at all times preserve and keep in full
force and effect all of its material rights and franchises; provided, however, that
the partnership or corporate existence of any Restricted Subsidiary, and any right or franchise of
the Borrower or any Restricted Subsidiary, may be terminated notwithstanding this Section
7.3 if, in the good faith judgment of the Borrower, such termination (x) is in the best
interest of the Borrower and the Restricted Subsidiaries, (y) is not disadvantageous to the Agent,
the Issuing Bank or the Banks in any material respect and (z) would not have a reasonable
likelihood of having a Material Adverse Effect.



(b) The Borrower will, and will cause each of its Subsidiaries to, at all times comply with
all laws, regulations and statutes (including without limitation any zoning or building ordinances)
applicable to it, except for failures to so comply which, individually or in the aggregate, would
not present a reasonable likelihood of having a Material Adverse Effect.



(c) The Borrower will not, and will not permit any Restricted Subsidiary to, engage in any
lines of business other than its current Business as defined in this Agreement and other activities
incidental or related to the Business.



7.4 Payment of Taxes and Claims. The Borrower will, and will cause each of its
Subsidiaries to, pay all material Taxes, Other Taxes, assessments and other governmental charges
imposed upon it or any of its Subsidiaries, or any Assets or in respect of any of its or any of its
Subsidiaries’ franchises, business, income or profits when the same becomes due and payable, and
all claims (including without limitation claims for labor, services, materials and supplies) for
sums which have become due and payable and which by law have or might become a Lien upon any
Assets, and promptly reimburse the Banks for any such Taxes, Other Taxes, assessments, charges or
claims paid by them; provided, that no such Tax, Other Tax, assessment, charge or claim
need be paid or reimbursed if it is being contested in good faith by appropriate proceedings
promptly initiated and diligently conducted and if such reserves or other appropriate provision, if
any, as shall be required by GAAP shall have been made therefor and be adequate in the good faith
judgment of the General Partner.



7.5 Maintenance of Properties: Insurance. (a) The Borrower shall, and shall cause each
Restricted Subsidiary to, (a) protect and preserve all of its respective material properties,
including, but not limited to, all intellectual property, and maintain in good repair, working
order and condition all tangible properties, ordinary wear and tear excepted, and (b) make or cause
to be made all needed and appropriate repairs, renewals, replacements and additions to such
properties, so that the business carried on in connection therewith may be properly and
advantageously conducted at all times.


 


- 70 -









 





(b) The Borrower will, and will cause each Restricted Subsidiary to, maintain or cause to be
maintained, with financially sound and reputable insurance companies (or through self-insurance in
accordance with applicable law), insurance with respect to its properties and
business, and the properties and business of its Restricted Subsidiaries, against loss or damage of
the kinds customarily insured against, and in such amounts as customarily maintained, by companies
in the same or similar businesses operating in the same or similar locations. The Borrower will,
from time to time, deliver to the Agent upon its request a detailed list of all insurance
maintained by the Borrower and its Restricted Subsidiaries, together with copies of all policies of
insurance then in effect and a statement including the names of insurance companies (or stating
that such risks are self insured), amounts of insurance, dates of expiration thereof and risks
covered thereby.



7.6 Guarantors. Promptly, and in any event within 15 days thereof, upon any Person
becoming a Restricted Subsidiary of the Borrower, the Borrower will cause such Restricted
Subsidiary to execute and deliver to the Agent such appropriate documents to become a guarantor
under the Subsidiary Guarantee. Notwithstanding the foregoing, until the AEPLP Available Date, the
Borrower shall not be required to cause AEPLP or any of AEPLP’s Subsidiaries, and neither AEPLP
nor any of its Subsidiaries shall be required to comply with this Section 7.6.



7.7 Further Assurances. At any time and from time to time promptly, the Borrower
shall, at its expense, execute and deliver to the Agent and each Bank such further instruments and
documents, and take such further action, as the Agent or any Bank may from time to time reasonably
request, in order to further carry out the intent and purpose of this Agreement and the other Loan
Documents and to establish, perfect, preserve and protect the rights, interests and remedies
created, or intended to be created, in favor of the Banks hereunder and thereunder.



7.8 Designations With Respect to Subsidiaries. (a) The Borrower may designate any
Restricted Subsidiary or newly acquired or formed Subsidiary as an Unrestricted Subsidiary or any
Unrestricted Subsidiary as a Restricted Subsidiary, in each case subject to satisfaction of the
following conditions:



(i) immediately before and after giving effect to such designation, no Default or Event of
Default shall exist and be continuing; and



(ii) after giving effect to such designation, the Borrower would be permitted to incur at
least $1 of additional Indebtedness in accordance with the provisions of clauses (i)(A)
and (B) of Section 8.1(f);



(iii) in the case of a designation of a Restricted Subsidiary or a newly acquired or formed
Subsidiary as an Unrestricted Subsidiary, the conditions set forth in subsection (ii)(A)
of Section 8.8(c) (the “Sale Condition”) and Section 8.4(h) (the “Investment
Condition”) would be satisfied, assuming for this purpose that such designation (and all prior
designations of Restricted Subsidiaries or newly acquired or formed Subsidiaries as Unrestricted
Subsidiaries during the current fiscal year) constitutes a sale by the Borrower of (in the case of
the Sale Condition), and an Investment by the Borrower in an amount equal to (in the case of the
Investment Condition), all the assets of the Subsidiary so designated, in each case for an amount
equal to (x) the net book value of such assets in the case of a Restricted Subsidiary and (y) the
cost of acquisition or formation in the case of a newly acquired or formed Subsidiary (such
amounts being herein referred to as “Designation Amounts” and deemed to constitute Net
Proceeds for the purposes of the Sale Condition); provided, however, that
notwithstanding anything to the contrary contained herein, until the AEPLP Guaranty Date, AEPLP
and each of its Subsidiaries shall at all times remain Restricted Subsidiaries and in no event
shall the Borrower have any right to redesignate AEPLP or any of its Subsidiaries as an
Unrestricted Subsidiary.


 


- 71 -









 





(b) A Subsidiary that has twice previously been designated an Unrestricted Subsidiary may not
thereafter be designated as a Restricted Subsidiary.



(c) The Borrower shall deliver to the Agent and each Bank, within 20 Business Days after any
such designation, an Officer’s Certificate stating the effective date of such designation and
stating that the foregoing conditions contained in this Section 7.8 have been satisfied.
Such certificate shall be accompanied by a schedule setting forth in reasonable detail the
calculations demonstrating compliance with such conditions, where appropriate.



(d) All Investments, Indebtedness, Liens, Guaranty Obligations and other obligations that an
Unrestricted Subsidiary (the “Designee”) has at the time of being designated a Restricted
Subsidiary hereunder shall be deemed to have been acquired, made or incurred, as the case may be,
at the time of such designation and in anticipation of such Designee becoming a Subsidiary and of
acquiring its assets (except as otherwise specifically provided in Section 8.1(i)
or (j)).



7.9 Covenants of the General Partner and Petrolane. (a) Petrolane covenants that it
will not engage (directly or indirectly) in any business or activity other than any of the lines
of business and activities conducted by it on the Closing Date. The General Partner covenants that
it will not create any Liens on the general partnership interests in the Borrower or the Public
Partnership and each of the General Partner and Petrolane covenant that it will maintain and keep
in effect its corporate existence and franchises, except, with respect to Petrolane, as permitted
pursuant to Section 7.9(f).



(b) Except, with respect to Petrolane, in the event of the dissolution or merger of Petrolane
as permitted by Section 7.9(f), each of the General Partner and Petrolane will deliver to
the Agent, on behalf of the Banks, and the Agent will promptly distribute to each Bank at their
respective addresses as set forth on Schedule 12.2 hereto, or such other office as may be
designated by the Agent and Banks from time to time, (i) financial statements as to itself of the
same character described in, and at the times specified in, Sections 7.1(a) and
7.1(b) with respect to the Borrower (the “Guarantor Financials”), in each case certified
and reported on in the same manner as the Borrower Financials (except that the financial
statements of Petrolane need not be audited), and (ii) with reasonable promptness, such other
information and data (financial or other) with respect to the General Partner or Petrolane, as the
case may be, as may from time to time be reasonably requested by the Agent.



(c) The General Partner will perform and comply with all of its obligations under the
Partnership Agreement, will enforce the Partnership Agreement against each other party thereto and
will not accept the termination of the Partnership Agreement or any amendment or supplement
thereof or modification or waiver thereunder, unless any such failure to perform,
comply or enforce or any such acceptance would not, individually or in the aggregate, present a
reasonable likelihood of having a Material Adverse Effect.


 


- 72 -









 





(d) Section 6.5 of the Partnership Agreement (the “Incorporated Covenant”) as in effect on the
Closing Date, together with all related definitions, is hereby incorporated herein in the form
included in the Partnership Agreement on April 19, 1995 and without regard to any subsequent
amendments or waivers of the provisions of, or any termination of, the Partnership Agreement. The
General Partner agrees to fully perform and comply with the Incorporated Covenant.



(e) The General Partner agrees to apply all distributions received by the Public Partnership
from the Borrower and made with the proceeds of Indebtedness incurred pursuant to Section
8.1(1) only to make payments, purchases, prepayments, redemptions, defeasances or other
repayments (scheduled or unscheduled) of Indebtedness of the Public Partnership (and to pay all
fees, premiums, make whole amounts and transaction expenses incurred in connection therewith).



(f) Notwithstanding anything to the contrary contained herein, Petrolane may be dissolved or
may merge with or into the General Partner or a wholly owned subsidiary of UGI that provides a
guaranty of the Obligations (the “Guaranteeing Entity”) if the General Partner or such Guaranteeing
Entity, as the case may be, is the surviving entity so long as, in connection with such dissolution
or merger, all of the assets of Petrolane are distributed to, or otherwise held entirely by, the
General Partner or such Guaranteeing Entity immediately following such dissolution or merger.



7.10 Books and Records. The Borrower will, and will cause each of its Restricted
Subsidiaries to, keep books and records which accurately reflect all of its business affairs and
transactions and permit the Agent and each Bank or any of their respective representatives, at
reasonable times and intervals, to visit all of its offices, to discuss its financial matters with
its officers and to examine (and, at the expense of the Borrower, photocopy extracts from) any of
its books or other Borrower records. Upon the occurrence and during the continuance of any Default
or Event of Default the Borrower hereby authorizes its independent public accountant to discuss the
Borrower’s financial matters with the Agent and each Bank or any of their respective
representatives provided that a representative of the Borrower is present. So long as a Default or
Event of Default has occurred and is continuing, the Borrower shall pay any fees of the Agent, each
Bank and such independent public accountant incurred in connection with the Agent’s or any Bank’s
exercise of its rights pursuant to this Section.



7.11 Environmental Covenant. The Borrower will, and will cause each of the Restricted
Subsidiaries to:



(a) comply with all applicable Environmental Laws and any permit, license, or approval
required under any Environmental Law, except for failures to so comply which would not present a
reasonable likelihood of having a Material Adverse Effect;



(b) store, use, release, or dispose of any Hazardous Substance in compliance with
Environmental Laws at any property owned or leased by the Borrower or any of its
Restricted Subsidiaries, except where such non-compliance would not present a reasonable likelihood
of having a Material Adverse Effect;


 


- 73 -









 





(c) avoid committing any act or omission which would cause any Lien to be asserted against any
property owned by the Borrower or any of its Restricted Subsidiaries pursuant to any Environmental
Law, except where such Lien would not present a reasonable likelihood of having a Material Adverse
Effect;



(d) use, handle or store propane in compliance with Environmental Laws, except where such
non-compliance would not present a reasonable likelihood of having a Material Adverse Effect;



(e) take all steps required by Environmental Law to cure any violation thereof disclosed in
Schedule 6.19; and



(f) provide such information and certificates which the Agent or any Bank may reasonably
request from time to time to evidence compliance with this Section 7.11.



ARTICLE VIII




NEGATIVE COVENANTS




So long as any Bank shall have any Commitment hereunder, or any Loan or other Obligation shall
remain unpaid or unsatisfied, or any Letters of Credit shall remain outstanding, unless the
Required Banks waive compliance in writing:



8.1 Indebtedness. The Borrower will not, and will not permit any Restricted Subsidiary
to, create, incur, assume or otherwise become or remain directly or indirectly liable with respect
to, any Indebtedness, except that:



(a) the Borrower may become and remain liable with respect to the Indebtedness evidenced by
the First Mortgage Notes and Long Term Funded Debt incurred in connection with any extension,
renewal, refunding or refinancing of Indebtedness evidenced by the First Mortgage Notes,
provided, that the principal amount of such Long Term Funded Debt shall not exceed the
principal amount of such Indebtedness evidenced by the First Mortgage Notes, together with any
accrued interest and prepayment charges with respect thereto, being extended, renewed, refunded or
refinanced;



(b) the Borrower may become and remain liable with respect to Indebtedness incurred by the
Borrower (i) to finance the making of expenditures for the improvement or repair (to the extent
such improvements and repairs may be capitalized on the books of the Borrower in accordance with
GAAP) of or additions (including additions by way of acquisitions or capital contributions of
businesses and related assets) to Assets or (ii) by assumption of Indebtedness in connection with
additions (including additions by way of acquisitions or capital contributions of businesses and
related assets) to Assets or to extend, renew, refund or refinance any such
Indebtedness; provided, that (x) the amount of such assumed Indebtedness shall not
exceed the
purchase price of such additions and (y) any such extensions, renewals, refundings or refinancings
of any such Indebtedness shall not exceed the principal amount thereof;


 


- 74 -









 





(c) subject to Section 8.4(c) any Restricted Subsidiary may become and remain liable
with respect to unsecured Indebtedness of such Restricted Subsidiary owing to the Borrower or to a
Wholly-Owned Restricted Subsidiary, and the Borrower may become and remain liable with respect to
unsecured Indebtedness owing to a Wholly-Owned Restricted Subsidiary provided it is subordinated to
the Obligations at least to the extent provided in the subordination provisions set forth in
Exhibit G;



(d) the Borrower may become and remain liable with respect to unsecured Indebtedness of the
Borrower owing to the General Partner or an Affiliate of the General Partner, provided,
that (i) the aggregate principal amount of such Indebtedness outstanding at any time shall not be
in excess of $50,000,000 and (ii) such Indebtedness is created and is outstanding under an
agreement or instrument pursuant to which such Indebtedness is subordinated to the Obligations at
least to the extent provided in the subordination provisions set forth in Exhibit G;



(e) the Borrower may become and remain liable with respect to Indebtedness incurred pursuant
to this Agreement and the other Loan Documents;



(f) the Borrower may become and remain liable with respect to Indebtedness, in addition to
that otherwise permitted by the foregoing subsections of this Section 8.1, if on
the date the Borrower becomes liable with respect to any such additional Indebtedness and
immediately after giving effect thereto and to the substantially concurrent repayment of any other
Indebtedness (A) the ratio of Consolidated Cash Flow to Consolidated Pro Forma Debt Service is
equal to or greater than 2.50 to 1.0 and (B) the ratio of Consolidated Cash Flow to Average
Consolidated Pro Forma Debt Service is equal to or greater than 1.25 to 1.0;



(g) the Borrower and its Restricted Subsidiaries may become and remain liable with respect to
the Indebtedness described on Schedule 6.7;



(h) the Borrower may become and remain liable with respect to obligations under Interest Rate
Agreements entered into to hedge interest rate risk;



(i) any Person that after the Closing Date becomes a Restricted Subsidiary may become and
remain liable with respect to any Indebtedness to the extent such Indebtedness existed at the time
such Person became a Subsidiary (and was not incurred in anticipation of such Person becoming a
Subsidiary); provided, that (x) immediately after giving effect to such Person becoming a
Restricted Subsidiary, the Borrower could incur at least $1 of additional Indebtedness in
compliance with clauses (i)(A) and (i)(B) of Section 8.1(f) and (y) if such Indebtedness is
secured, such Liens are permitted under Section 8.3(h);



(j) the Borrower and any Restricted Subsidiary may become and remain liable with respect to
Indebtedness relating to any business acquired by or contributed to the Borrower or such Restricted
Subsidiary or which is secured by a Lien on any property or assets acquired by or contributed to
the Borrower or such Restricted Subsidiary to the extent such Indebtedness existed at the time such
business or property or assets were so acquired or contributed (and was not incurred in
anticipation thereof) and if such Indebtedness is secured by
such property or assets, such security interest (x) does not extend to or cover any other property
of the Borrower or any of the Restricted Subsidiaries and (y) is permitted under Section
8.3(h), provided, that immediately after giving effect to such acquisition or
contribution, the Borrower could incur at least $1 of additional Indebtedness in compliance with
clauses (i)(A) and (B) of Section 8.1(f);


 


- 75 -









 





(k) Capitalized Lease Liabilities not in excess of $10,000,000 at any time
outstanding; and



(1) the Borrower may become and remain liable with respect to Indebtedness which otherwise
complies with the terms of Section 8.1(f), the proceeds of which are used to make
distributions permitted under Section 8.5, provided, that the aggregate principal
amount of all Indebtedness incurred under this Section 8.1(1) since August 21, 2001 and
outstanding at any time shall not exceed $105,000,000, provided, further, that at
the time the Borrower incurs any Indebtedness permitted under the above provisions of this
Section 8.1(1), such Indebtedness shall have received (i) a Special Rating and (ii) an
investment grade rating from at least two nationally recognized statistical rating organizations
(as defined for purposes of Rule 436(g) under the Securities Act), such as Standard & Poor’s
Ratings Services, a division of The McGraw-Hill Companies, Inc., Fitch Ratings and Moody’s
Investors Service;



Further, notwithstanding anything in this Agreement to the contrary, until the AEPLP Guaranty
Date, the Borrower will not permit AEPLP or any of its Subsidiaries to create, incur, assume or
otherwise become or remain directly or indirectly liable with respect to any Indebtedness, other
than (i) Indebtedness of the type described in Section 8.1(c), (ii) the Indebtedness of
AEPLP on the date of closing of the Columbia Acquisition, as disclosed in the Columbia Purchase
Agreement (which amount was not in excess of $10,000,000), and (iii) the Indebtedness of AEPLP
owing to the Borrower which is evidenced by the Intercompany Note to the extent that the aggregate
principal amount outstanding thereunder does not exceed $137,997,000.



8.2 Minimum Interest Coverage. The Borrower will not permit the ratio of EBITDA to
Consolidated Interest Expense as at any fiscal quarter end for the four fiscal quarters then
ending to be less than 3.00 to 1.0.



8.3 Liens, etc. The Borrower will not, and will not permit any Restricted Subsidiary
to, directly or indirectly create, incur, assume or permit to exist any Lien on or with respect to
any property or asset (including any document or instrument in respect of goods or accounts
receivable) of the Borrower or any Restricted Subsidiary, whether now owned or hereafter acquired,
or any income or profits therefrom, except:



(a) Liens for taxes, assessments or other governmental charges the payment of which is not
yet due and payable or which is being contested in compliance with Section 7.4 hereof;



(b) Liens of lessors, landlords and carriers, vendors, warehousemen, mechanics, materialmen,
repairmen and other like Liens incurred in the ordinary course of business for sums not yet due or
the payment of which is being contested in good faith by appropriate proceedings and (i) not
incurred or made in connection with the borrowing of
money, the obtaining of advances or credit or the payment of the deferred purchase price of
property or (ii) incurred in the ordinary course of business securing the unpaid purchase price of
property or services constituting current accounts payable; and precautionary Liens in favor of
lessors under capital leases and leases of equipment in the ordinary course of business;


 


- 76 -









 





(c) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary
course of business (i) in connection with workers’ compensation, unemployment insurance and other
types of social security, or (ii) to secure (or to obtain letters of credit that secure) the
performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, performance
bonds, purchase, construction or sales contracts and other similar obligations, in each case not
incurred or made in connection with the borrowing of money;



(d) other deposits made to secure liability to insurance carriers under insurance or
self-insurance arrangements;



(e) Liens securing reimbursement obligations under letters of credit, provided in
each case that such Liens cover only the title documents and related goods (and any proceeds
thereof) covered by the related letter of credit;



(f) any attachment or judgment Lien, unless the judgment it secures shall not, within 60 days
after the entry thereof, have been discharged or execution thereof stayed pending appeal or
review, or shall not have been discharged within 60 days after expiration of any such stay;



(g) leases or subleases granted to others, easements, rights-of-way, restrictions and other
similar charges or encumbrances, which, in each case either (i) are granted, entered into or
created in the ordinary course of the business of the Borrower or any Restricted Subsidiary or
(ii) do not, individually or in the aggregate, present a reasonable likelihood of having a
Material Adverse Effect;



(h) Liens existing on any property of any Person at the time it becomes a Subsidiary of the
Borrower, or existing at the time of acquisition upon any property acquired by the Borrower or any
such Subsidiary through purchase, merger or consolidation or otherwise, whether or not assumed by
the Borrower or such Subsidiary, or created to secure Indebtedness incurred under Section
8.1(f) to pay all or any part of the purchase price (a “Purchase Money Lien”) of property
(including without limitation Capital Stock and other securities) acquired by the Borrower or a
Restricted Subsidiary, provided, that (i) any such Lien shall be confined solely to such
item or items of property and, if required by the terms of the instrument originally creating such
Lien, other property which is an improvement to or is acquired for use specifically in connection
with such acquired property, (ii) in the case of a Purchase Money Lien, the principal amount of
the Indebtedness secured by such Purchase Money Lien shall at no time exceed an amount equal to
the lesser of (A) the cost to the Borrower and the Restricted Subsidiaries of such property and
(B) the fair market value of such property at the time of the acquisition thereof (as determined
in good faith by the General Partner), (iii) any such Purchase Money Lien shall be created not
later than 30 days after the acquisition of such property and (iv) any such Lien (other than a
Purchase Money Lien) shall not have been created or assumed in
contemplation of such Person’s becoming a Subsidiary of the Borrower or such acquisition of
property by the Borrower or any Subsidiary;


 


- 77 -









 





(i) Liens securing other obligations otherwise permitted under this Agreement, including, but
not limited to, Capitalized Lease Obligations, which obligations secured by such Liens shall not
exceed an amount equal to 3% of Consolidated Net Tangible Assets at such time;



(j) Liens securing the First Mortgage Notes that attach to the assets of the Borrower or any
Restricted Subsidiary pursuant to Section 1.3 of either of the First Mortgage Note Agreements;
provided, that at no time when such Liens exist, shall the Leverage Ratio exceed 2.00 to 1.00; and



(k) easements, exceptions or reservations in any property of the Borrower or any Restricted
Subsidiary granted or reserved for the purpose of pipelines, roads, the removal of oil, gas, coal
or other minerals, and other like purposes, or for the joint or common use of real property,
facilities and equipment, which are incidental to, and do not materially interfere with, the
ordinary conduct of the business of the Borrower or any Restricted Subsidiary.



Notwithstanding anything in this Agreement to the contrary, until the AEPLP Guaranty Date, other
than Liens permitted by subsections (a), (b), CO, (d), (f),
(g), ICI) and Li) of this Section 8.3, the Borrower will not permit AEPLP or any
of its Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist any Lien
on or with respect to any property or asset (including any document or instrument in respect of
goods or accounts receivable) of AEPLP or such Subsidiary, whether such property or assets are now
owned or held or hereafter acquired, or any income or profits therefrom.



8.4 Investments, Contingent Obligations, etc. The Borrower will not, and will not
permit any Restricted Subsidiary to, directly or indirectly (i) make or own any Investment in any
Person (including an Investment in a Subsidiary of the Borrower), (ii) create or become liable
with respect to any Contingent Obligation with respect to any Indebtedness of a Control Affiliate,
or (iii) create or become liable with respect to any Contingent Obligation (provided,
however, that nothing contained in this Section 8.4, except clause (ii)
above, is intended to limit the making of any Contingent Obligation which would be permitted as
Indebtedness under Section 8.1), except:



(a) the Borrower or any Restricted Subsidiary may make and own
Investments in the following (collectively, “Cash Equivalents”):



(i) marketable obligations issued or unconditionally guaranteed by the United States of
America, or issued by any agency thereof and backed by the full faith and credit of the United
States, in each case maturing one year or less from the date of acquisition thereof,



(ii) marketable direct obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof maturing within one
year from the date of acquisition thereof and having as at such date the highest rating obtainable
from either Standard & Poor’s Rating Group or Moody’s Investors Service, Inc.,


 


- 78 -









 





(iii) commercial paper maturing no more than 270 days from the date of creation thereof and
having as of the date of acquisition thereof one of the two highest ratings obtainable from either
Standard & Poor’s Rating Group or Moody’s Investors Service, Inc.,



(iv) certificates of deposit maturing one year or less from the date of acquisition thereof
issued by commercial banks incorporated under the laws of the United States of America or any
state thereof or the District of Columbia or Canada, (A) the commercial paper or other short term
unsecured debt obligations of which are as of such date rated either A-2 or better (or comparably
if the rating system is changed) by Standard & Poor’s Rating Group or Prime-2 or better (or
comparably if the rating system is changed) by Moody’s Investors Service, Inc. or (B) the
long-term debt obligations of which are as at such date rated either A or better (or comparably if
the rating system is changed) by either Standard & Poor’s Rating Group or A-2 or better or
comparably if the rating system is changed by Moody’s Investors Service, Inc. (“Permitted Banks”),



(v) Eurodollar time deposits having a maturity of less than 270 days from the date of
acquisition thereof purchased directly from any Permitted Bank;



(vi) bankers’ acceptances eligible for rediscount under requirements of the FRB and accepted
by Permitted Banks, and



(vii) obligations of the type described in clause (i), (ii), (iii),
(iv) or (v) above purchased from a securities dealer designated as a “primary
dealer” by the Federal Reserve Bank of New York or from a Permitted Bank as counterparty to a
written repurchase agreement obligating such counterparty to repurchase such obligations not later
than 14 days after the purchase thereof and which provides that the obligations which are the
subject thereof are held for the benefit of the Borrower or a Restricted Subsidiary by a custodian
which is a Permitted Bank and which is not a counterparty to the repurchase agreement in question;



(b) the Borrower or any Restricted Subsidiary may acquire Capital Stock or other ownership
interests, whether in a single transaction or a series of related transactions, of a Person (i)
located in the United States or Canada, (ii) incorporated or otherwise formed pursuant to the laws
of the United States or Canada or any state or province thereof or the District of Columbia and
(iii) engaged in substantially the same business as the Borrower such that, upon the completion of
such transaction or series of transactions, such Person becomes a Restricted Subsidiary;



(c) subject to the provisions of subsection (h) below, the Borrower or any Restricted
Subsidiary may make and own Investments (in addition to Investments permitted by
subsections (a),  (d), (e), (ff and (g) of this
Section 8.4) in any Person incorporated or otherwise formed pursuant to the laws of the
United States or Canada or any state or province thereof or the District of Columbia which is
engaged in the United States or Canada in substantially the same business as the Borrower;
provided, that (i) the aggregate amount of all such Investments made by the Borrower and
its Restricted Subsidiaries following April 19, 1995 (including without limitation the
transactions contemplated by this Agreement) and outstanding pursuant to this subsection
(c) and subsection (h) below shall not at any date of determination exceed 10% of
Total Assets (the “Investment Limit”), provided, that in addition to


 


- 79 -









 





Investments
that would be permitted under the Investment Limit, during any fiscal year the Borrower and its
Restricted Subsidiaries may invest up to $25,000,000 (the “Annual Limit”) pursuant to the
provisions of this subsection (c), but the unused amount of the Annual Limit shall not be
carried over to any future years and provided, further, that neither the Annual
Limit nor the Investment Limit shall include the aggregate principal amount of the Intercompany
Note outstanding on August 21, 2001 to the extent that such amount is not in excess of $137,997,000
at the time of determination, and (ii) such Investments shall not be made in Capital Stock or
Indebtedness of the Public Partnership or any of its Subsidiaries (other than the Borrower and the
Restricted Subsidiaries);



(d) the Borrower or any Restricted Subsidiary may make and own Investments (x) arising out of
loans and advances to employees incurred in the ordinary course of business not in excess of
$1,000,000 at any time outstanding, (y) arising out of extensions of trade credit or advances to
third parties in the ordinary course of business and (z) acquired by reason of the exercise of
customary creditors’ rights upon default or pursuant to the bankruptcy, insolvency or
reorganization of a debtor;



(e) the Borrower and any Restricted Subsidiary may create or become liable with respect to any
Contingent Obligation constituting an obligation, warranty or indemnity, not guaranteeing
Indebtedness of any Person, which is undertaken or made in the ordinary course of business;



(f)
the Borrower may create and become liable with respect to any
Interest Rate Agreements;



(g) any Restricted Subsidiary may make Investments in the
Borrower;



(h) the Borrower or any Restricted Subsidiary may make or own Investments in Unrestricted
Subsidiaries, provided, that the Net Amount of Unrestricted Investment shall not at any
time exceed $5,000,000 (and subject to the limitations specified in subsection (c) above);



(i) the Borrower may own Investments consisting of the Intercompany Note to the extent that
the aggregate principal amount of the Intercompany Note does not exceed $137,990,000;



(j) AEPI, AEPH and AEPLP may remain liable for any obligations, warranties or indemnities set
forth in the National Propane Purchase Agreement as such agreement is in effect on the August 28,
2003; and



(k) the Borrower may remain (i) liable for its indemnification and guarantee obligations under
the Columbia Purchase Agreement, as in effect on August 21, 2001, and (ii) under the Keep Well
Agreement, as in effect on August 21, 2001.



Notwithstanding the foregoing, the Borrower may have outstanding undrawn letters of credit
(including Letters of Credit) not in excess of $100,000,000.


 


- 80 -









 





8.5 Restricted Payments. The Borrower will not directly or indirectly declare, order,
pay, make or set apart any sum for any Restricted Payment, except that the Borrower may
declare or order, and make, pay or set apart, once during each calendar quarter a Restricted
Payment if (a) such Restricted Payment is in an amount not exceeding Available Cash for the
immediately preceding calendar quarter, and (b) immediately after giving effect to any such
proposed action no Event of Default (or Default under Sections 9.1(a), (f) or g)
shall exist and be continuing; provided, that notwithstanding the foregoing, the Borrower
may declare, order, pay, make or set apart sums for Restricted Payments to the Public Partnership
at any time, and from time to time, in an aggregate amount not exceeding the proceeds of
Indebtedness of the Borrower incurred pursuant to Section 8.1(1) if immediately after
giving effect to any such proposed action no Event of Default (or Default under Sections
9.1(a), (f), or (g)) shall exist and be continuing. The Borrower will comply
with, and accrue on its books, the reserve provisions required under the definition of Available
Cash. The Borrower will not, in any event, directly or indirectly declare, order, pay or make any
Restricted Payment except in cash. The Borrower will not permit any Restricted Subsidiary to
declare, order, pay or make any Restricted Payment or to set apart any sum or property for any
such purpose (it being understood that nothing in this Section 8.5 shall prohibit any such
Restricted Subsidiary from declaring, ordering, paying, making, or setting apart any sum or
property for, any payment or other distribution or dividend to (i) the Borrower or any
Wholly-Owned Restricted Subsidiary and (ii) so long as no Default or Event of Default shall occur
and be continuing, all holders of Capital Stock of such Restricted Subsidiary on a pro rata basis)
(with any such distribution or dividend to a Control Affiliate being subject to the limitation of
the first sentence of this Section 8.5).



8.6 Transactions with Affiliates. The Borrower will not, and will not permit any
Restricted Subsidiary to, directly or indirectly, engage in any transaction with any Affiliate,
including without limitation the purchase, transfer, disposition, sale, lease or exchange of
assets or the rendering of any service, unless (1)(a) such transaction or series of related
transactions is on fair and reasonable terms that are no less favorable to the Borrower or such
Restricted Subsidiary, as the case may be, than those which would be obtained in an arm’s-length
transaction at the time such transaction is agreed upon between Persons which are not Affiliates,
and (b) with respect to a transaction or series of transactions involving aggregate payments or
value equal to or greater than $15,000,000, the Borrower shall have delivered an Officers’
Certificate to the Agent certifying that such transaction or series of transactions complies with
the preceding clause (a) and that such transaction or series of transactions has been
approved by a majority of the Board of Directors of the General Partner (including a majority of
the Disinterested Directors), or (2) such transaction or series of related transactions is between
the Borrower and any Wholly-Owned Restricted Subsidiary or between two Wholly-Owned Restricted
Subsidiaries, provided, however, that this Section 8.6 will not restrict
the Borrower, any Restricted Subsidiary or the General Partner from entering into (i) any
employment agreement, stock option agreement, restricted stock agreement or other similar
agreement or arrangement in the ordinary course of business, (ii) transactions permitted by
Section 8.5 and (iii) transactions in the ordinary course of business in connection with
reinsuring the self-insurance programs or other similar forms of retained insurable risks of the
retail propane business operated by the Borrower, its Subsidiaries and its Affiliates.


 


- 81 -









 






8.7 Subsidiary Stock and Indebtedness. The Borrower will not:



(a) directly or indirectly sell, assign, pledge or otherwise dispose of any Indebtedness of
or any shares of stock or similar interests of (or warrants, rights or options to
acquire stock or similar interests of) any Restricted Subsidiary, except to a Wholly-Owned
Restricted Subsidiary;



(b) permit any Restricted Subsidiary directly or indirectly to sell, assign, pledge or
otherwise dispose of any Indebtedness of the Borrower or any other Restricted Subsidiary, or any
shares of stock or similar interests of (or warrants, rights or options to acquire stock or similar
interests of) any other Restricted Subsidiary, except to the Borrower or a Wholly-Owned Restricted
Subsidiary;



(c) permit any Restricted Subsidiary to have outstanding any shares of stock or similar
interests which are preferred over any other shares of stock or similar interests in such
Restricted Subsidiary owned by the Borrower or a Wholly-Owned Restricted Subsidiary unless such
shares of preferred stock or similar interests are owned by the Borrower or a WhollyOwned
Restricted Subsidiary; or



(d) permit any Restricted Subsidiary directly or indirectly to issue or sell (including
without limitation in connection with a merger or consolidation of such Subsidiary otherwise
permitted by Section 8.8(a)) any shares of its stock or similar interests (or warrants,
rights or options to acquire its stock or similar interests) except to the Borrower or a
WhollyOwned Restricted Subsidiary;



provided, that (i) any Restricted Subsidiary may sell, assign or otherwise dispose of
Indebtedness of the Borrower if, assuming such Indebtedness were incurred immediately after such
sale, assignment or disposition, such Indebtedness would be permitted under Section 8.1
(other than Section 8.1(c)) (in which case such Indebtedness need not be subject to the
subordination provisions required by Section 8.1(c)) and (ii) subject to compliance with
Section 8.8(c), all Indebtedness and shares of stock or partnership interests of any
Restricted Subsidiary owned by the Borrower or any other Restricted Subsidiary may be
simultaneously sold as an entirety for an aggregate consideration at least equal to the fair value
thereof (as determined in good faith by the General Partner) at the time of such sale if (x) such
Restricted Subsidiary does not at the time own (A) any Indebtedness of the Borrower or any other
Restricted Subsidiary (other than Indebtedness which, if incurred immediately after such
transaction, would be permitted under Section 8.1, other than Section 8.1(c)) (in
which case such Indebtedness need not be subject to the subordination provisions required by
Section 8.1(c)) or (B) any stock or other interest in any other Restricted Subsidiary which
is not also being simultaneously sold as an entirety in compliance with this proviso or Section
8.8(b)(ii) and (y) at the time of such transaction and immediately after giving effect thereto,
the Borrower could incur at least $1 of additional Indebtedness in compliance with clauses
(i)(A) and (B) of Section 8.1(f) and (iii) AEPLP may issue or sell its Capital
Stock to the Special Limited Partner (as defined in the AEPLP Partnership Agreement) of AEPLP in
accordance with Section 5.3 of the AEPLP Partnership Agreement, as such Section 5.3 was in effect
on August 21, 2001.


 


- 82 -









 





8.8 Consolidation, Merger, Sale of Assets, etc. The Borrower will not, and will not
permit any Restricted Subsidiary to, directly or indirectly,



(a) consolidate with or merge into any other Person or permit any other
Person to consolidate with or merge into it, except that:



(i) any Restricted Subsidiary may consolidate with or merge into the Borrower or a
Wholly-Owned Restricted Subsidiary if the Borrower or a Wholly-Owned Restricted Subsidiary, as the
case may be, shall be the surviving Person and if, immediately after giving effect to such
transaction, no Default or Event of Default shall exist and be continuing; and



(ii) any entity (other than a Restricted Subsidiary) may consolidate with or merge into the
Borrower or a Wholly-Owned Restricted Subsidiary if the Borrower or a Wholly-Owned Restricted
Subsidiary, as the case may be, shall be the surviving Person and if, immediately after giving
effect to such transaction, (x) the Borrower (1) shall not have a Consolidated Net Worth,
determined in accordance with GAAP applied on a basis consistent with the consolidated financial
statements of the Borrower most recently delivered pursuant to Section 7.1(b)(ii), of less
than the Consolidated Net Worth of the Borrower immediately prior to the effectiveness of such
transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers’
Certificate delivered to the Agent at the time of such transaction, (2) shall not be liable with
respect to any Indebtedness or allow its property to be subject to any Lien which it could not
become liable with respect to or allow its property to become subject to under this Agreement
(including without limitation under Section 8.1 or 8.3) on the date of such transaction,
and (3) could incur at least $1 of additional Indebtedness in compliance with clauses
(i)(A) and (B) of Section 8.1(f), (y) substantially all of the assets of the
Borrower and its Restricted Subsidiaries shall be located and substantially all of their business
shall be conducted within the United States and Canada and (z) no Default or Event of Default
shall exist and be continuing; and



(iii) subject
to compliance with Section 12.1, the Borrower may consolidate
with or merge into any other entity if (w) the surviving entity is a corporation or limited
partnership organized and existing under the laws of the United States of America or any state
thereof or the District of Columbia, with substantially all of its properties located and its
business conducted (without giving effect to the properties owned by, and the business conducted
by, Unrestricted Subsidiaries) within the United States and Canada, (x) such corporation or
limited partnership expressly and unconditionally assumes the obligations of the Borrower under
this Agreement, and the other Loan Documents, and delivers to the Agent an opinion of counsel
reasonably satisfactory to the Required Banks with respect to the due authorization and execution
of the related agreement of assumption and the enforceability of such agreement against such
corporation or partnership, (y) immediately after giving effect to such transaction, such
corporation or limited partnership (1) shall not have (without giving effect to Unrestricted
Subsidiaries) a Consolidated Net Worth, determined in accordance with GAAP applied on a basis
consistent with the consolidated financial statements of the Borrower most recently delivered
pursuant to Section 7.1(b)(ii), of less than the Consolidated Net Worth of the Borrower
immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be
set forth in reasonable detail in an Officers’ Certificate delivered to the Agent at the time of
such transaction, (2) shall not be liable with respect to any Indebtedness or allow its property
to be subject to any Lien which it could not become liable with respect to or allow its property
to become subject to under this Agreement (including without limitation under Section 8.1
or 8.3) on the date of such transaction and (3) could incur at least $1 of additional Indebtedness
in compliance with clauses (i)(A) and (B) of Section 8.1(f), and (z)
immediately
after giving effect to such transaction no Default or Event of Default shall exist and be
continuing; or


 


- 83 -









 





(b) sell, lease, abandon or otherwise dispose of all or substantially all its assets, except
that:



(i) any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all
its assets to the Borrower or to a Wholly-Owned Restricted Subsidiary; and



(ii) subject to compliance with clause (c) of this Section 8.8,
any Restricted Subsidiary may sell, lease or otherwise dispose of all or substantially all its
assets as an entirety for an aggregate consideration at least equal to the fair value thereof (as
determined in good faith by the General Partner) at the time of such sale if (x) the assets being
sold, leased or otherwise disposed of do not include (A) any Indebtedness of the Borrower or any
other Restricted Subsidiary (other than Indebtedness which, if incurred immediately after such
transaction, would be permitted under Section 8.1 (other than Section 8.1(c)) so
long as such Indebtedness is held by a Person other than the Borrower or a Restricted Subsidiary),
in which case such Indebtedness need not be subject to the subordination provisions required by
Section 8.1(c) or (B) any stock of or other equity interest in any other Restricted
Subsidiary which is not also being simultaneously sold as an entirety in compliance with this
subsection (b)(ii) or the proviso of Section 8.7 and (y) at the time of such
transaction and immediately after giving effect thereto, the Borrower could incur at least $1 of
additional Indebtedness in compliance with clauses (i)(A) and (B) of Section
8.1(f); and



(iii) subject to compliance with Section 12.1, the Borrower may sell, lease or
otherwise dispose of all or substantially all its assets to any corporation or limited partnership
into which the Borrower could be consolidated or merged in compliance with subsection
(a)(iii) of this Section 8.8, provided, that each of the conditions set forth
in such subsection (a)(iii) shall have been fulfilled; or



(c) (1) sell, lease, convey, abandon or otherwise dispose of any of its assets (except in a
transaction permitted by subsection (a)(i), (a)(iii), (b)(i) or
(b)(iii) of this Section 8.8 or sales of inventory in the ordinary course of
business consistent with past practice), including by way of a Sale and Lease-Back Transaction, or
(2) issue or sell Capital Stock of the Borrower or any Subsidiary (other than to the Borrower or a
Wholly-Owned Restricted Subsidiary), in the case of either clause (1) or (2) above,
whether in a single transaction or a series of related transactions (each of the foregoing
non-excepted transactions, an “Asset Sale”), unless:



(i) immediately after giving effect to such proposed disposition, no Default or Event of
Default shall exist and be continuing; and



(ii) one of the following two conditions shall be satisfied:




(A) the aggregate Net Proceeds of all assets so disposed of (whether or
not leased back) by the Borrower and its Restricted Subsidiaries during the
current fiscal year (including (x) amounts deemed to be proceeds in
connection with designations of Restricted Subsidiaries
as Unrestricted Subsidiaries during such fiscal year under Section
7.8, (y) Net Proceeds of dispositions of shares pursuant to Section
8.7 or sales of assets pursuant to Section 8.8(b)), less the
amount of all Net Proceeds of prior dispositions of assets during such
fiscal year previously applied in accordance with subsection (ii)(B)
of this Section 8.8(c), shall not exceed $10,000,000 during such
fiscal year; or


 


- 84 -









 






(B) in the event that such Net Proceeds (less the amount thereof
previously applied in accordance with this subsection (ii)(B) during
the current fiscal year exceed $10,000,000 (such excess Net Proceeds
actually realized being herein called “Excess Sale Proceeds”), the Borrower
shall within 360 days of the date of the disposal of the assets giving rise
to such proceeds, cause an amount equal to such Excess Sale Proceeds to be
applied (with the designation of an Unrestricted Subsidiary as a Restricted
Subsidiary being deemed to be such an application to the extent of the fair
value of such Restricted Subsidiary as determined in good faith by the
General Partner) (x) to the acquisition of assets in replacement of the
assets so disposed of or of assets which may be productively used in the
United States or Canada in the conduct of the Business, or (y) to the extent
not applied pursuant to the immediately preceding clause (x), to the
prepayment of the Obligations and Senior Indebtedness, if any, pursuant to
Section 2.7(a) hereof, all as provided in such Section
2.7(a); and



(iii) (A) the consideration received for such assets is at least equal to their aggregate
fair market value (as determined in good faith by the Board of Directors of the General Partner)
at the time of such disposition and that such consideration has been applied or is being held for
application in accordance with the terms of this Agreement and (B) at least 80% of the
consideration therefor received is in the form of cash; provided, however, that
the amount of (1) any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most
recent balance sheet or in the notes thereto) of the Borrower or any Restricted Subsidiary (other
than liabilities that are by their terms subordinated in right of payment to the Loans) that are
assumed by the transferee of any such assets and (2) any notes or other obligations received by
the Borrower or any such Restricted Subsidiary from such transferee that are immediately converted
by the Borrower or such Restricted Subsidiary into cash (to the extent of the cash received),
shall be deemed to be cash for purposes of this clause (B); and provided, further,
that the 80% limitation referred to in this clause (B) shall not apply to any Asset Sale in which
the cash portion of the consideration received therefrom, determined in accordance with the
foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had
such Asset Sale complied with the aforementioned 80% limitation.



Notwithstanding the foregoing, Asset Sales shall not be deemed to include (1) any transfer of
assets or issuance or sale of Capital Stock by the Borrower or any Restricted Subsidiary to the
Borrower or a Wholly-Owned Restricted Subsidiary, (2) any transfer of assets or issuance or sale
of Capital Stock by the Borrower or any Restricted Subsidiary to any Person in exchange for other
assets used in a line of business permitted under Section 7.3(c) and having a fair market
value (as determined in good faith by the General Partner) not less than that of the assets so
transferred or Capital Stock so issued or sold and (3) any transfer of assets pursuant to an
Investment permitted by Section 8.4.


 


- 85 -









 





8.9 Use of Proceeds. (a) The Obligors will not, and will not suffer or permit any
Subsidiary to, use any portion of the Loan proceeds or any Letter of Credit, directly or
indirectly, (i) to purchase or carry Margin Stock, (ii) to repay or otherwise refinance
Indebtedness of the Borrower or others incurred to purchase or carry Margin Stock, (iii) to extend
credit for the purpose of purchasing or carrying any Margin Stock, (iv) to acquire any security in
any transaction that is subject to Section 13 or 14 of the Exchange Act or (v) to fund any
operations in, finance any investments or activities in, or make any payments to, a Sanctioned
Person or Sanctioned Entity.



(b) The proceeds of the Revolving Loans will be used for working capital purposes and general
purposes of the Borrower and its Restricted Subsidiaries.



(c) The proceeds of the Acquisition Loans will be used for, as selected by the Borrower in a
Notice of Borrowing, (i) the acquisition by the Borrower of companies or assets in businesses
similar to the Business, and may be used, without limitation, for the payment of related fees and
expenses and the retirement, repayment or refinancing of any Indebtedness incurred as part of such
acquisition, including any Indebtedness assumed by the Borrower in connection with an addition of
assets by way of capital contribution and (ii) in the event there is no availability under the
Revolving Commitments, working capital purposes and general purposes (other than the purposes
described in clause (i) above) of the Borrower and its Restricted Subsidiaries.



(d) The proceeds of the Swing Line Loans will be used for working capital purposes and general
purposes of the Borrower and its Restricted Subsidiaries.



8.10 Change in Business. The Borrower will not, and will not suffer or permit any
Restricted Subsidiary to, engage in any material line of business substantially different from the
Business.



8.11 Accounting Changes. The Borrower will not, and will not suffer or permit any
Restricted Subsidiary to, make any significant change in accounting treatment or reporting
practices, except as required by GAAP, or change the fiscal year of the Borrower or of any
Subsidiary.



8.12 Clean Down. The Borrower will not permit the sum of (a) the outstanding Revolving
Loans and (b) the outstanding Specified Acquisition Loans to exceed $30,000,000 for a period of 30
consecutive days during each fiscal year.



8.13 Receivables. The Borrower will not, and will not permit any Restricted Subsidiary
to, discount, pledge or sell (with or without recourse) any of its accounts or notes receivable,
except for sales of receivables (i) made in the ordinary course of business with a face amount not
to exceed $500,000 in the aggregate which have been sold and remain unpaid by the account debtors,
(ii) without recourse which are seriously past due and which have been substantially written off as
uncollectible or collectible only after extended delays, (iii) from a
Restricted Subsidiary to the Borrower or (iv) made in connection with the sale of a business but
only with respect to the receivables directly generated by the business so sold.


 


- 86 -









 





8.14 Leverage Ratio. The Borrower will not permit the Leverage Ratio at any time to
exceed 4.00 to 1.00. For purposes of this Section 8.14, the Borrower may elect whether to
calculate EBITDA (i) as at the end of any fiscal quarter for the four full consecutive fiscal
quarters most recently ended or (ii) as at the end of any fiscal quarter for the eight full
consecutive fiscal quarters most recently ended (in which case EBITDA shall be divided by two);
provided, that on any given date of determination, the Borrower shall calculate EBITDA for
the same period used by the Borrower on such date of determination in calculating EBITDA for
purposes of determining its compliance with Section 8.15.



8.15 Minimum Consolidated EBITDA. The Borrower will not permit EBITDA to be less than
$200,000,000 (as calculated pursuant to the following sentence). For purposes of this Section
8.15, the Borrower may elect whether to calculate EBITDA (i) as at the end of any fiscal
quarter for the four full consecutive fiscal quarters most recently ended or (ii) as at the end of
any fiscal quarter for the eight full consecutive fiscal quarters most recently ended (in which
case EBITDA shall be divided by two); provided, that on any given date of determination,
the Borrower shall calculate EBITDA for the same period used by the Borrower on such date of
determination in calculating EBITDA for purposes of determining its Leverage Ratio pursuant to
Section 8.14.



8.16 Acquisitions. After the date hereof and until the AEPLP Guaranty Date, the
Borrower will not, and will not permit any Restricted Subsidiary to, make any Acquisition unless,
after giving effect to the consummation of such Acquisition (including any substantially
concurrent mergers), (a) all PP&E Assets acquired in connection with such Acquisition shall be
owned by the Borrower or a Restricted Subsidiary, (b) the aggregate net book value of the PP&E
Assets of AEPLP and its Subsidiaries (both prior to and after giving effect to such Acquisition)
shall not exceed the sum of (i) 33-1/3% of the aggregate net book value of all PP&E Assets of the
Borrower and its Restricted Subsidiaries and (ii) $70,000,000 and (c) the aggregate net book value
(as determined in good faith by the General Partner) of all PP&E Assets acquired by AEPLP or any
of its Subsidiaries in any fiscal year pursuant to Acquisitions (other than PP&E Assets acquired
with the proceeds of any prior or concurrent Capped Investments or PP&E Transfers) (“AEPLP
Acquisitions”) shall not, together with any Capped Investments and any PP&E Transfers made in such
fiscal year pursuant to Section 8.18(a) and Section 8.18(b)(iii), respectively, in
the aggregate, exceed (i) $35,000,000 (the “Yearly Threshold”), plus (ii) the amount of any
Carryover Threshold (such sum is referred to herein as the “PP&E Acquisition/Investment/Transfer
Limit”). “Carryover Threshold” shall mean, for any fiscal year, an amount equal to the PP&E
Acquisition/Investment/Transfer Limit for the prior fiscal year minus the aggregate AEPLP
Acquisitions, Capped Investments and PP&E Transfers in such prior fiscal year, provided,
that the Carryover Threshold shall in no event exceed $100,000,000. As June 30, 2006, the
Carryover Threshold was $100,000,000 and the PP&E Acquisition/Investment/Transfer Limit for the
period ending June 30, 2006 was $135,000,000.



8.17 Limitation on Restricted Agreements. The Borrower will not, and will not permit
any Subsidiary to, enter into, or suffer to exist, any agreement (other than the National Propane
Purchase Agreement) with any Person which, directly or indirectly, prohibits or limits
the ability of any Restricted Subsidiary to (a) pay dividends or make other distributions to the
Borrower or prepay any Indebtedness owed to the Borrower, (b) make loans or advances to the
Borrower or (c) transfer any of its properties or assets to the Borrower.


 


- 87 -









 





8.18 AEPLP. Notwithstanding anything in this Agreement to the contrary (including the
final paragraph of Section 8.8 hereof), until the first date as of which AEPLP and each of
its Subsidiaries have become guarantors under the Subsidiary Guarantee in accordance with
Section 7.6 hereof (such date, the “AEPLP Guaranty Date”), provided, that (A) the
Subsidiary Guarantee of each Subsidiary of AEPLP may be subject and subordinate to the guaranty of
such Subsidiary held by the Borrower to secure the obligation of such Subsidiary to guarantee (the
“AEPLP Subsidiary Guaranty”), upon terms and conditions satisfactory to the Agent, and (B) the
Subsidiary Guarantee of AEPLP may be subject and subordinate to the obligations of AEPLP under the
Intercompany Note and the Intercompany Loan, upon terms and conditions satisfactory to the Agent:



(a) Investments. The Borrower will not, and will not permit any Restricted Subsidiary
(other than AEPLP and its Subsidiaries) (each, a “Non AEPLP Restricted Subsidiary”) to, directly or
indirectly, make or own any Investment in AEPLP or any of its Subsidiaries, except for Investments
in AEPLP or its Subsidiaries permitted under Sections 8.4(b), CO, (d),
(e), and 01 and Section 8.18(b) hereof; provided, however, that the
aggregate net book value (as determined in good faith by the General Partner) of all such
Investments made pursuant to Sections 8.4(b) and (c) (the “Capped Investments”) in
any fiscal year shall not, together with any AEPLP Acquisitions and PP&E Transfers made in such
fiscal year pursuant to Section 8.16 and Section 8.18(b)(iii), respectively, in the
aggregate, exceed the PP&E Acquisition/Investment/Transfer Limit for such fiscal year.



(b) Asset Transfers. The Borrower will not, and will not permit any NonAEPLP
Restricted Subsidiary to, directly or indirectly, sell, lease, convey or otherwise transfer,
directly or indirectly, any of its assets to AEPLP or any Subsidiary of AEPLP, including by way of
a Sale and Lease-Back Transaction (each, a “Transfer”), except that:



(i) the Borrower may, and may permit any Non-AEPLP Restricted Subsidiary to, Transfer to AEPLP
or any of its Subsidiaries assets, provided, that (A) such assets (“Non-PP&E Assets”) would
not, in accordance with the past practice of the Borrower, be classified and accounted for as
“property, plant and equipment” on the consolidated balance sheet of the Borrower and the
Restricted Subsidiaries, (B) the consideration paid by AEPLP or its Subsidiaries to the Borrower or
a Non-AEPLP Restricted Subsidiary for such Non-PP&E Assets is at least equal to the transferor’s
aggregate net book value therefor and (C) the aggregate amount of propane inventory (by number of
gallons) of AEPLP and its Subsidiaries shall not at any time exceed 40% of the aggregate amount of
propane inventory (by number of gallons) of the Borrower and the Restricted Subsidiaries;



(ii) the Borrower may, and may permit any Non-AEPLP Restricted Subsidiary to, Transfer to
AEPLP or any of its Subsidiaries assets in exchange for other assets used in the line of business
permitted under Section 8.10 and having a fair market value (as determined in good faith by
the General Partner, and the Managing General Partner (as defined in the AEPLP Partnership
Agreement) of AEPLP) not less than that of the assets so Transferred;


 


- 88 -









 





(iii) the Borrower may, and may permit any Non-AEPLP Restricted Subsidiary to, Transfer (a
“PP&E Transfer”) to AEPLP or any of its Subsidiaries PP&E Assets (together with associated working
capital), provided, that (A) the aggregate net book value (as determined in good faith by
the General Partner) of all PP&E Assets that are Transferred by the Borrower or a Non-AEPLP
Restricted Subsidiary to AEPLP or any of its Subsidiaries in any fiscal year shall not, together
with any AEPLP Acquisitions and Capped Investments made in such
fiscal year pursuant to Section 8.16 and Section 8.18(a), respectively, in the aggregate, exceed the PP&E
Acquisition/Investment/Transfer Limit for such fiscal year; (B) the consideration paid by AEPLP or
its Subsidiaries to the Borrower or any Non-AEPLP Restricted Subsidiary for such PP&E Assets is at
least equal to the transferor’s net book value therefor; and (C) the aggregate net book value of
all PP&E Assets of AEPLP and its Subsidiaries shall not at any time exceed the sum of (i) 33-1/3%
of the aggregate net book value of all PP&E Assets of the Borrower and its Restricted Subsidiaries
and (ii) $70,000,000;



(iv) the
limitations contained in Sections 8.16(b) and (c) and
Sections 8.18(b)(iii)(A) and (C) shall not apply to or prohibit or otherwise
restrict (A) any Investment in AEPLP or any of its Subsidiaries permitted by Section
8.18(a), (B) any lease of real or personal property from the Borrower or a Restricted
Subsidiary (other than AEPLP and its Subsidiaries), as lessor, to AEPLP or a Subsidiary of AEPLP,
as lessee, (C) any Transfer of assets by the Borrower or any Non-AEPLP Restricted Subsidiary to
AEPLP or any of its Subsidiaries if (1) such assets consist of the proceeds, or assets purchased or
subsequently funded with the proceeds, of a sale of equity interests or debt of the Public
Partnership or the General Partner to an entity other than the Borrower or any Restricted
Subsidiaries, (2) such Transfer is made within one year of such equity or debt sale and (3) in the
case of a subsequent funding, such proceeds are used to repay Senior Indebtedness of the Borrower
(other than Indebtedness incurred previously pursuant to Section 8.1(e) or (to the extent
such Indebtedness incurred pursuant to Section 8.1(f) is used to repay Indebtedness or
letter of credit obligations incurred and outstanding under the Revolving Credit Facility)
8.1(f)) or Indebtedness incurred by the Borrower to make Acquisitions of assets that have
been Transferred to AEPLP, or (D) any AEPLP Acquisition (1) if the assets acquired are purchased in
exchange for equity interests or debt of the Public Partnership or the General Partner or (2)(x) if
the assets acquired are purchased or subsequently funded with the proceeds of a sale of equity
interests or debt by the Public Partnership or the General Partner to an entity other than the
Borrower or any Restricted Subsidiary, (y) such AEPLP Acquisition is made within one year of such
equity or debt sale and (z) in the case of a subsequent funding, such proceeds are used to repay
Senior Indebtedness of the Borrower (other than Indebtedness incurred pursuant to Section
8.1(e) or (to the extent such Indebtedness incurred pursuant to Section 8.1(f) is used
to repay Indebtedness or letter of credit obligations incurred and outstanding under the Revolving
Credit Facility) 8.1(f)) or Indebtedness incurred by AEPLP (and owing to the Borrower) or
the Borrower to make AEPLP Acquisitions.



(c) AEPLP Partnership Agreement. The Borrower will not, and will cause its
Subsidiaries to not, (i) permit the AEPLP Partnership Agreement, as in effect on the Closing Date,
to be amended, modified or supplemented in any respect if such amendment, modification or
supplement would adversely affect the rights or powers of the Managing General Partner, or any
successor General Partner (each as defined in the AEPLP Partnership Agreement), with respect to the
liquidation, dissolution or winding-up of the affairs of AEPLP or any disposition of assets,
discharge of liabilities or distribution of assets in connection therewith (including but not
limited to any modification to Section 12.1 of the Partnership Agreement) or (ii) permit AEPLP to
admit any Person as a Class A Limited Partner or any Managing General Partner (as defined in the
AEPLP Partnership Agreement).


 


- 89 -









 





(d) Trade Accounts Payable. The Borrower will not permit AEPLP and its Subsidiaries to
create, incur, assume or otherwise become or remain directly or indirectly liable with respect to
an aggregate amount of trade accounts payable (including but not limited to amounts owed under
equipment leases) in excess of $15,000,000 at any time, provided, that the amount of any
(a) AEPLP Taxes, fines or penalties owing by AEPLP and its Subsidiaries to any Governmental
Authority and (b) obligations of AEPLP and its Subsidiaries owing to the Borrower or any Restricted
Subsidiary, shall in each case be excluded from the calculation of the aggregate amount of trade
accounts payables pursuant to this Section 8.18(d).



In addition, both prior to and after the AEPLP Guaranty Date, the Borrower will not, and will cause
its Subsidiaries to not, permit the Intercompany Note to be amended, modified or supplemented in
any respect if such amendment, modification or supplement would materially and adversely affect the
rights of the holder of the Intercompany Note (in its capacity as a holder of the Intercompany
Note), including, without limitation, any modification of the July 19, 2009, maturity date of the
outstanding principal amount thereunder.



ARTICLE IX 



EVENTS OF DEFAULT




9.1 Event of Default. Any of the following shall constitute an “Event of Default”:



(a) Non-Payment. The Borrower fails to pay the Agent or any Bank or the Issuing Bank,
(i) when and as required to be paid herein, any amount of principal of any Loan or L/C Borrowing,
or (ii) within 5 days after the same becomes due, any interest, fee, or any other amount payable to
the Agent or the Banks hereunder or under any other Loan Document; or



(b) Representation or Warranty. Any representation or warranty made in writing by any
Obligor, or any Restricted Subsidiary made or deemed made herein, in any other Loan Document or
which is contained in any certificate, financial statement or other document of such Obligor or
such Restricted Subsidiary required to be delivered hereunder, furnished at any time under this
Agreement, or in or under any other Loan Document, is incorrect in any material respect on or as of
the date made or deemed made; or



(c) Specific Defaults. There shall be a default in the performance of, or compliance
with, any term contained in Section 7.1(b)(vii), Section 7.3(a)(i), any of
Sections 8.1 through 8.9, inclusive, Section 8.14 (and, in the case of the
first sentence of Section 8.14, such default shall continue unremedied for a period of 30
days), Section 8.15, or Section 8.18, provided, however, that (i)
with respect to (A) incurrence of Indebtedness in violation of Section 8.1 in an aggregate
outstanding principal amount which is less than $5,000,000, (B) incurrence of a Lien in violation
of Section 8.3 which secures Indebtedness which is in an aggregate outstanding principal
amount of less than $5,000,000 (other than a Lien incurred in violation of Section 8.3(j)),
(C) transactions with



 


- 90 -









 







 an
Affiliate in violation of Section 8.6 involving an aggregate amount of less than $2,000,000, (D) the making of any Investment or creation of a
Contingent Obligation in violation of Section 8.4 involving an aggregate amount of less
than $2,000,000, or (E) the entering into of any transaction in violation of Section 8.7
involving an aggregate amount of less than $2,000,000, there shall be no Event of Default under
this clause (c) unless the aggregate amount of all violations under clauses (A) through
(E) exceeds $8,000,000 on any date of determination or any such violation shall remain
uncured for 30 days after a Responsible Officer becomes aware of any such violation and (ii) with
respect to incurrence of a Lien in violation of Section 8.3(j), there shall be no Event of
Default under this clause (c) unless such violation shall remain uncured for 90 days; or



(d) Other Defaults. Any Obligor, or any Restricted Subsidiary fails to perform or
observe any other term or covenant contained in this Agreement (including, without limitation,
such defaults of Sections 8.1, 8.3, 8.4, 8.6 and 8.7 not arising due to an Event of
Default pursuant to the proviso to the immediately preceding subsection (c)(i)), or in any
other Loan Document and such default shall continue unremedied for a period of 30 days after the
date upon which written notice thereof is given to the Obligors by the Agent or the Required
Banks; or



(e) Cross-Default. The Borrower, any Restricted Subsidiary, the General Partner, any
of its Subsidiaries or the Public Partnership or any of its Subsidiaries (other than the
Partnership Unrestricted Subsidiaries) (as principal or guarantor or other surety) shall default
in the payment of any amount of principal of or premium or interest on any Senior Indebtedness or
any other Indebtedness, other than the Obligations (regardless of whether or not such payment
default shall have been waived by the holders of such Indebtedness); or any event shall occur or
condition shall exist in respect of any Indebtedness of the Borrower, any Restricted Subsidiary,
the General Partner, any of its Subsidiaries or the Public Partnership or any of its Subsidiaries
(other than the Partnership Unrestricted Subsidiaries) or under any evidence of any such
Indebtedness or under any mortgage, indenture or other agreement relating thereto, and the effect
of such event or condition is to cause (or to permit one or more Persons to cause) such
Indebtedness to become due or be repurchased or repaid before its stated maturity or before its
regularly scheduled dates of payment (other than pursuant to mandatory prepayment provisions
pursuant to a (1) Change of Control or similar transaction or (2) prepayment under circumstances
and on terms substantially identical to, and not inconsistent with, Section 9.3(b) of each of the
First Mortgage Note Agreements as in effect on the Closing Date to the extent it relates to Excess
Taking Proceeds, as defined therein, or Section 8.8(c)(ii) hereof to the extent it relates
to Excess Sale Proceeds, in each case not involving a default) or to permit the holders thereof to
cause the Borrower, any Restricted Subsidiary, the General Partner, any of its Subsidiaries or the
Public Partnership or any of its Subsidiaries (other than the Partnership Unrestricted
Subsidiaries) to repurchase or repay such Indebtedness (other than pursuant to mandatory
prepayment provisions pursuant to a (1) Change of Control or similar transaction or (2) prepayment
under circumstances and on terms substantially identical to, and not inconsistent with,
Section 9.3(b) of each of the First Mortgage Note Agreements as in effect on the Closing
Date to the extent it related to Excess Taking Proceeds, as defined therein, or Section
8.3(c)(ii) to the extent it relates to Excess Sale Proceeds, in each case not involving a
default), and such default, event or condition shall continue for more than the period of grace,
if any, specified therein (regardless of whether or not such default, event or condition shall
have been waived by the holders of such Indebtedness); provided, that the aggregate
principal amount of all
Indebtedness as to which such a default (payment or other), event or condition shall occur or
exist exceeds $7,500,000; or


 


- 91 -









 





(f) Insolvency Voluntary Proceedings. Any Obligors, or any Significant Subsidiary
Group (i) ceases or fails to be solvent, or admits in writing its inability to pay its debts as
they become due, subject to applicable grace periods, if any, whether at stated maturity or
otherwise; (ii) voluntarily ceases to conduct its business in the ordinary course (except, as to
Petrolane, upon the dissolution or merger of Petrolane as permitted pursuant to Section
7.9(f)); (iii) commences any Insolvency Proceeding with respect to itself; or (iv) takes any
action to effectuate or authorize any of the foregoing; or



(g) Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding is commenced
or filed against any Obligor, or any Significant Subsidiary Group, or any writ, judgment, warrant
of attachment, execution or similar process, is issued or levied against a substantial part of any
Obligor’s, or any such Significant Subsidiary Group’s properties, and any such proceeding or
petition shall not be dismissed, or such writ, judgment, warrant of attachment, execution or
similar process shall not be released, vacated or fully bonded within 60 days after commencement,
filing or levy; (ii) any Obligor, or any such Significant Subsidiary Group admits the material
allegations of a petition against it in any Insolvency Proceeding, or an order for relief (or
similar order under non-U.S. law) is ordered in any Insolvency Proceeding; or (iii) any Obligor,
or any such Significant Subsidiary Group acquiesces in the appointment of a receiver, trustee,
custodian, conservator, liquidator, mortgagee in possession (or agent therefor), or other similar
Person for itself or a substantial portion of its property or business; or



(h) Judgments. Any judgment or order for the payment of money in excess of $9,000,000
and not covered by insurance shall be rendered against any of the Obligors or any Significant
Subsidiary Group, and either




(a) enforcement proceedings shall have been commenced by any creditor upon such
judgment or order; or




(b) there shall be any period of 60 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect and prior to the expiration of such 60-day period, the judgment shall not
have been discharged.



(i) Pension Plans. Any of the following events shall occur with respect to any
Pension Plan and such events, either alone or together, present a reasonable likelihood of having
a Material Adverse Effect:




(a) the institution of any steps by any Obligor, or any other Person to terminate a
Pension Plan maintained or sponsored by an Obligor, or any Subsidiary of an Obligor; or




(b) an ERISA Event.



(j) Change of Control. There occurs any Change of Control; or


 


- 92 -









 





(k) Loan Documents. Any Loan Document shall (except in accordance with its terms) in
whole or in part, cease to be effective or cease to be the legally valid, binding and enforceable
obligation of any Obligor party thereto (except, as to Petrolane, upon the dissolution or merger
of Petrolane as permitted pursuant to Section 7.9(f)); the Borrower, General Partner,
Petrolane or any other Credit Party shall, directly or indirectly, contest in any manner such
effectiveness, validity, binding nature or enforceability except as permitted by this Agreement.



9.2 Remedies. If any Event of Default occurs and is continuing, the Agent shall, at
the request of, or may, with the consent of, the Required Banks, take any or all of the following
actions:



(a) declare the commitment of each Bank to make Loans (including the Swing Ling Bank to make
Swing Line Loans) and any obligation of the Issuing Bank to Issue Letters of Credit to be
terminated, whereupon such commitments and obligation shall be terminated;



(b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document
to be immediately due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Obligors;



(c) require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to
the then Effective Amount thereof); and



(d) exercise on behalf of itself and the Banks all rights and remedies available to it and
the Banks under the Loan Documents or applicable law;



provided, however, that upon the occurrence of any event specified in
subsection (f) or (g) of Section 9.1 (in the case of clause (i) of
subsection (g) upon the expiration of the 60-day period mentioned therein), the obligation
of each Bank to make Loans and any obligation of the Issuing Bank to Issue Letters of Credit shall
automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and
other amounts as aforesaid shall automatically become due and payable, and the obligation of the
Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become
effective, in each case without further act of the Agent or any Bank.



9.3 Rights Not Exclusive. The rights provided for in this Agreement and the other
Loan Documents are cumulative and are not exclusive of any other rights, powers, privileges or
remedies provided by law or in equity, or under any other instrument, document or agreement now
existing or hereafter arising.


 


- 93 -









 





9.4 Application of Funds. After the exercise of remedies provided for in Section
9.2 (or after the Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set forth in the proviso
to Section 9.2), any amounts received on account of the Obligations shall be applied by
the Agent in the following order:



First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including Attorney Costs and amounts payable under Article IV)
payable to the Agent in its capacity as such;



Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal and interest) payable to the Banks (including Attorney
Costs and amounts payable under Article IV), ratably among them in proportion to the
amounts described in this clause Second payable to them;



Third, to payment of that portion of the Obligations constituting accrued and unpaid
interest on the Loans and L/C Borrowings, ratably among the Banks in proportion to the respective
amounts described in this clause Third payable to them;



Fourth, to payment of that portion of the Obligations constituting unpaid principal
of the Loans and L/C Borrowings, ratably among the Banks in proportion to the respective amounts
described in this clause Fourth held by them;



Fifth, to the Agent for the account of the Issuing Bank, to Cash Collateralize that
portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit; and



Last, the balance, if any, after all of the Obligations have been indefeasibly paid
in full, to the Borrower or as otherwise required by law.



Subject to Section 3.3(c), amounts used to Cash Collateralize the aggregate undrawn amount
of Letters of Credit pursuant to clause Fifth above shall be applied in accordance
herewith and with the other Loan Documents to satisfy drawings under such Letters of Credit as
they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied in accordance herewith
and with the other Loan Documents to the other Obligations, if any, in the order set forth above.



ARTICLE X




THE AGENT




10.1 Appointment and Authorization. (a) Each Bank hereby irrevocably appoints,
designates and authorizes the Agent to take such action on its behalf under the provisions of this
Agreement and each other Loan Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or any other Loan Document, together with
such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the Agent have or be deemed
to have any fiduciary relationship with any Bank or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement
or any other Loan Document or otherwise exist against the Agent. Without limiting the generality
of the foregoing sentence, the use of the term “agent” herein and in the other Loan Documents with
reference to the Agent is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable law.



 


- 94 -









 







Instead, such term is used merely as a matter of market custom, and is intended to create or
reflect only an administrative relationship between independent contracting parties.



(b) The Issuing Bank shall act on behalf of the Banks with respect to any Letters of Credit
issued by it and the documents associated therewith, and the Issuing Bank shall have all of the
benefits and immunities (i) provided to the Agent in this Article X with respect to any
acts taken or omissions suffered by the Issuing Bank in connection with Letters of Credit issued
by it or proposed to be issued by it and the applications and agreements for letters of credit
pertaining to such Letters of Credit as fully as if the term “Agent” as used in this Article
X and in the definition of “Agent-Related Person” included the Issuing Bank with respect to
such acts or omissions, and (ii) as additionally provided herein with respect to the Issuing Bank.



10.2 Delegation of Duties. The Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents, employees or attorneys-in-fact and
shall be entitled to advice of counsel and other consultants or experts concerning all matters
pertaining to such duties. The Agent shall not be responsible for the negligence or misconduct of
any agent or attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct.



10.3 Liability of Agent. No Agent-Related Person shall (a) be liable for any action
taken or omitted to be taken by any of them under or in connection with this Agreement or any
other Loan Document or the transactions contemplated hereby (except for its own gross negligence
or willful misconduct in connection with its duties expressly set forth herein), or (b) be
responsible in any manner to any Bank or participant for any recital, statement, representation or
warranty made by any Credit Party or any officer thereof, contained herein or in any other Loan
Document, or in any certificate, report, statement or other document referred to or provided for
in, or received by the Agent under or in connection with, this Agreement or any other Loan
Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of any Credit Party or any other party to
any Loan Document to perform its obligations hereunder or thereunder. No Agent-Related Person
shall be under any obligation to any Bank or participant to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions of, this Agreement
or any other Loan Document, or to inspect the properties, books or records of any Credit Party or
any Affiliate thereof.



10.4 Reliance by Agent. (a) The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, communication, signature, resolution, representation,
notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message,
electronic mail message, statement or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel to any Credit Party), independent accountants
and other experts selected by the Agent. The Agent shall be fully justified in failing or refusing
to take any action under any Loan Document unless it shall first receive such advice or
concurrence of the Required Banks as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Banks against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action. The Agent shall
in all cases be fully protected in acting, or in refraining from acting, under this Agreement or
any
other Loan Document in accordance with a request or consent of the Required Banks (or such greater
number of Banks as may be expressly required hereby in any instance) and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the Banks.


 


- 95 -









 





(b) For purposes of determining compliance with the conditions specified in Section
5.1, each Bank that has signed this Agreement shall be deemed to have consented to, approved
or accepted or to be satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to a Bank.



10.5 Notice of Default. The Agent shall not be deemed to have knowledge or notice of
the occurrence of any Default, except with respect to defaults in the payment of principal,
interest and fees required to be paid to the Agent for the account of the Banks, unless the Agent
shall have received written notice from a Bank or the Borrower referring to this Agreement,
describing such Default and stating that such notice is a “notice of default.” The Agent will
notify the Banks of its receipt of any such notice. The Agent shall take such action with respect
to such Default as may be directed by the Required Banks in accordance with Article IX;
provided, however, that unless and until the Agent has received any such
direction, the Agent may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default as it shall deem advisable or in the best interest of
the Banks.



10.6 Credit Decision. Each Bank acknowledges that no Agent-Related Person has made
any representation or warranty to it, and that no act by the Agent hereafter taken, including any
consent to and acceptance of any assignment or review of the affairs of any Credit Party or any
Affiliate thereof, shall be deemed to constitute any representation or warranty by any
AgentRelated Person to any Bank as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Bank represents to the Agent that it has,
independently and without reliance upon any Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and creditworthiness of
the Credit Parties and their respective Subsidiaries, and all applicable bank or other regulatory
laws relating to the transactions contemplated hereby, and made its own decision to enter into
this Agreement and to extend credit to the Borrower and the other Credit Parties hereunder. Each
Bank also represents that it will, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such investigations as it deems
necessary to inform itself as to the business, prospects, operations, property, financial and
other condition and creditworthiness of the Borrower and the other Credit Parties. Except for
notices, reports and other documents expressly required to be furnished to the Banks by the Agent
herein, the Agent shall not have any duty or responsibility to provide any Bank with any credit or
other information concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of any of the Credit Parties or any of their respective Affiliates
which may come into the possession of any AgentRelated Person.


 


- 96 -









 





10.7 Indemnification. Whether or not the transactions contemplated hereby are
consummated, the Banks shall indemnify upon demand each Agent-Related Person (to the extent
not reimbursed by or on behalf of any Credit Party and without limiting the obligation of any
Credit Party to do so), pro rata, and hold harmless each Agent-Related Person from and against any
and all Indemnified Liabilities incurred by it; provided, however, that no Bank
shall be liable for the payment to any Agent-Related Person of any portion of such Indemnified
Liabilities to the extent determined in a final, nonappealable judgment by a court of competent
jurisdiction to have resulted from such Agent-Related Person’s own gross negligence or willful
misconduct; provided, however, that no action taken in accordance with the
directions of the Required Banks shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section. Without limitation of the foregoing, each Bank shall
reimburse the Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether through negotiations,
legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to
the extent that the Agent is not reimbursed for such expenses by or on behalf of the Borrower. The
undertaking in this Section shall survive termination of the Commitments, the payment of all other
Obligations and the resignation of the Agent.



10.8 Agent in Individual Capacity. Wachovia and its Affiliates may make loans to,
issue letters of credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting or other business
with each of the Credit Parties and their respective Affiliates as though Wachovia were not the
Agent or the Issuing Bank hereunder and without notice to or consent of the Banks. The Banks
acknowledge that, pursuant to such activities, Wachovia or its Affiliates may receive information
regarding any Credit Party or its Affiliates (including information that may be subject to
confidentiality obligations in favor of such Credit Party or such Affiliate) and acknowledge that
the Agent shall be under no obligation to provide such information to them. With respect to its
Loans, Wachovia shall have the same rights and powers under this Agreement as any other Bank and
may exercise such rights and powers as though it were not the Agent or the Issuing Bank, and the
terms “Bank” and “Banks” include Wachovia in its individual capacity.



10.9 Successor Agent. The Agent may resign as Agent upon 30 days’ notice to the Banks;
provided, that any such resignation by Wachovia shall also constitute its resignation as
Issuing Bank and Swing Line Bank. If the Agent resigns under this Agreement, the Required Banks
shall appoint from among the Banks a successor administrative agent for the Banks, which successor
administrative agent shall be consented to by the Borrower at all times other than during the
existence of an Event of Default (which consent of the Borrower shall not be unreasonably withheld
or delayed). If no successor administrative agent is appointed prior to the effective date of the
resignation of the Agent, the Agent may appoint, after consulting with the Banks and the Borrower,
a successor administrative agent from among the Banks. Upon the acceptance of its appointment as
successor administrative agent hereunder, the Person acting as such successor administrative agent
shall succeed to all the rights, powers and duties of the retiring Agent, Issuing Bank and Swing
Line Bank and the respective terms “Agent,” “Issuing Bank” and “Swing Line Bank” shall mean such
successor administrative agent, Letter of Credit issuer and swing line bank, and the retiring
Agent’s appointment, powers and duties as Agent shall be terminated and the retiring Issuing Bank’s
and Swing Line Bank’s rights, powers and duties as such shall be terminated, without any other or
further



 


- 97 -









 







act or
deed on the part of such retiring Issuing Bank, Swing Line Bank or any other Bank, other than the obligation of the
successor Issuing Bank to issue letters of credit in substitution for the Letters of Credit, if
any, outstanding at the time of such succession or to make other arrangements satisfactory to the
retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with
respect to such Letters of Credit. After any retiring Agent’s resignation hereunder as Agent, the
provisions of this Article X and Sections 12.4 and 12.5 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent under this
Agreement. If no successor administrative agent has accepted appointment as Agent by the date
which is 30 days following a retiring Agent’s notice of resignation, the retiring Agent’s
resignation shall nevertheless thereupon become effective and the Banks shall perform all of the
duties of the Agent hereunder until such time, if any, as the Required Banks appoint a successor
agent as provided for above.



10.10 Agent May File Proofs of Claim. In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to any Obligor, the Agent (irrespective of whether the principal of
any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or
otherwise and irrespective of whether the Agent shall have made any demand on the Borrower) shall
be entitled and empowered, by intervention in such proceeding or otherwise:



(a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and
unpaid and to file such other documents as may be necessary or advisable in order to have the
claims of the Banks and the Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Banks and the Agent and their respective agents and counsel and
all other amounts due the Banks and the Agent under Sections 2.10, 3.8 and 12.4)
allowed in such judicial proceeding; and



(b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;



and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Bank to make such payments to the
Agent and, in the event that the Agent shall consent to the making of such payments directly to
the Banks, to pay to the Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Agent and its agents and counsel, and any other amounts due the
Agent under Sections 2.10 and 12.4.



Nothing contained herein shall be deemed to authorize the Agent to authorize or consent to or
accept or adopt on behalf of any Bank any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations or the rights of any Bank or to authorize the Agent to vote
in respect of the claim of any Bank in any such proceeding.



10.11 Collateral and Guaranty Matters. The Banks irrevocably authorize the Agent, at
its option and in its discretion, to the extent applicable,



(a) to release any Lien, if any, on any property granted to or held by the Agent under any
Loan Document (i) upon termination of the Commitments and payment in full of all
Obligations (other than contingent indemnification obligations) and the expiration or termination
of all Letters of Credit, (ii) that is sold or to be sold as part of or in connection with any
sale permitted hereunder or under any other Loan Document, or (iii) subject to Section
12.1, if approved, authorized or ratified in writing by the Required Banks;


 


- 98 -









 





(b) to subordinate any Lien on any property granted to or held by the Agent under any Loan
Document to the holder of any Purchase Money Lien; and



(c) to release any Restricted Subsidiary from its obligations under the Subsidiary Guarantee
if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder.



Upon request by the Agent at any time, each Bank will confirm in writing the Agent’s
authority to release or subordinate its interest in particular types or items of property, or to
release any Restricted Subsidiary from its obligations under the Subsidiary Guarantee pursuant to
this Section 10.11.



10.12 Other Agents; Arrangers and Managers. None of the Banks or other Persons
identified on the facing page or signature pages of this Agreement as a “syndication agent,”
“co-documentation agent,” “co-agent,” “book manager,” “lead manager,” “arranger,” “lead arranger”
or “co-arranger” shall have any right, power, obligation, liability, responsibility or duty under
this Agreement other than, in the case of such Banks, those applicable to all Banks as such.
Without limiting the foregoing, none of the Banks or other Persons so identified shall have or be
deemed to have any fiduciary relationship with any Bank. Each Bank acknowledges that it has not
relied, and will not rely, on any of the Banks or other Persons so identified in deciding to enter
into this Agreement or in taking or not taking action hereunder.



10.13 Withholding Tax. (a) (i) Each Bank that is not a “United States person” within
the meaning of Section 7701(a)(30) of the Code (a “Foreign Bank”) shall deliver to the Agent,
prior to receipt of any payment subject to withholding under the Code (or upon accepting an
assignment of an interest herein), two duly signed completed copies of either IRS Form W-8BEN or
any successor thereto (relating to such Foreign Bank and entitling it to an exemption from, or
reduction of, withholding tax on all payments to be made to such Foreign Bank by the Borrower
pursuant to this Agreement) or IRS Form W-8ECI or any successor thereto (relating to all payments
to be made to such Foreign Bank by the Borrower pursuant to this Agreement) or such other evidence
satisfactory to the Borrower and the Agent that such Foreign Bank is entitled to an exemption
from, or reduction of, U.S. withholding tax, including any exemption pursuant to Section 881(c) of
the Code. Thereafter and from time to time, each such Foreign Bank shall (A) promptly submit to
the Agent such additional duly completed and signed copies of one of such forms (or such successor
forms as shall be adopted from time to time by the relevant United States taxing authorities) as
may then be available under then current United States laws and regulations to avoid, or such
evidence as is satisfactory to the Borrower and the Agent of any available exemption from or
reduction of, United States withholding taxes in respect of all payments to be made to such
Foreign Bank by the Borrower pursuant to this Agreement, (B) promptly notify the Agent of any
change in circumstances which would modify or render invalid any claimed exemption or reduction,
and (C) take such steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Bank, and as may be reasonably
necessary (including the re-designation of its Lending Office) to avoid any requirement of
applicable laws that the Borrower make any deduction or withholding for taxes from amounts payable
to such Foreign Bank.


 


- 99 -









 





(ii) Each Foreign Bank, to the extent it does not act or ceases to act for its own account
with respect to any portion of any sums paid or payable to such Bank under any of the Loan
Documents (for example, in the case of a typical participation by such Bank), shall deliver to the
Agent on the date when such Foreign Bank ceases to act for its own account with respect to any
portion of any such sums paid or payable, and at such other times as may be necessary in the
determination of the Agent (in the reasonable exercise of its discretion), (A) two duly signed
completed copies of the forms or statements required to be provided by such Bank as set forth
above, to establish the portion of any such sums paid or payable with respect to which such Bank
acts for its own account that is not subject to U.S. withholding tax, and (B) two duly signed
completed copies of IRS Form W-8IMY (or any successor thereto), together with any information such
Bank chooses to transmit with such form, and any other certificate or statement of exemption
required under the Code, to establish that such Bank is not acting for its own account with respect
to a portion of any such sums payable to such Bank.



(iii) The Borrower shall not be required to pay any additional amount to any Foreign Bank
under Section 4.1 (A) with respect to any Taxes required to be deducted or withheld on the
basis of the information, certificates or statements of exemption such Bank transmits with an IRS
Form W-8BEN, W-8ECI or W-8IMY pursuant to this Section 10.13(a) or (B) if such Bank shall
have failed to satisfy the foregoing provisions of this Section 10.13(a); provided
that if such Bank shall have satisfied the requirement of this Section 10.13(a) on the date
such Bank became a Bank or ceased to act for its own account with respect to any payment under any
of the Loan Documents, nothing in this Section 10.13(a) shall relieve the Borrower of its
obligation to pay any amounts pursuant to Section 4.1 in the event that, as a result of any
change in any applicable law, treaty or governmental rule, regulation or order, or any change in
the interpretation, administration or application thereof, such Bank is no longer properly entitled
to deliver forms, certificates or other evidence at a subsequent date establishing the fact that
such Bank or other Person for the account of which such Bank receives any sums payable under any of
the Loan Documents is not subject to withholding or is subject to withholding at a reduced rate.



(iv) The Agent may, without reduction, withhold any Taxes required to be deducted and withheld
from any payment under any of the Loan Documents with respect to which the Borrower is not required
to pay additional amounts under Section 4.1.



(b) Upon the request of the Agent, each Bank that is a “United States person” within the
meaning of Section 7701(a)(30) of the Code shall deliver to the Agent two duly signed completed
copies of IRS Form W-9. If such Bank fails to deliver such forms, then the Agent may withhold from
any interest payment to such Bank an amount equivalent to the applicable back-up withholding tax
imposed by the Code, without reduction.



(c) If any Governmental Authority asserts that the Agent did not properly withhold or backup
withhold, as the case may be, any tax or other amount from payments made to or for the account of
any Bank, such Bank shall indemnify the Agent therefor, including all
penalties and interest, any taxes imposed by any jurisdiction on the amounts payable to the Agent
under this Section, and costs and expenses (including Attorney Costs) of the Agent. The obligation
of the Banks under this Section shall survive the termination of the Commitments, repayment of all
other Obligations hereunder and the resignation of the Agent.


 


- 100 -









 





ARTICLE XI




GUARANTEE




11.1 Each Guaranteed Obligation. Each Guarantor, jointly and severally, irrevocably
and unconditionally guarantees the Obligations; provided, however, that each
Guarantor shall be liable under this Agreement for the maximum amount of such liability that can be
hereby incurred without rendering this Agreement, as it relates to such Guarantor, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater
amount. Each Guarantor understands, agrees and confirms that the Agent may enforce this Article
XI up to the full amount of the Obligations against each Guarantor, subject as aforesaid,
without proceeding against the Borrower, against any security for the Obligations, or under any
other Guaranty covering the Obligations.



11.2 Obligations Exclusive. The liability of each Guarantor hereunder is exclusive and
independent of any security for or other Guaranty Obligation of the Obligations whether executed by
such Guarantor, any other Guarantor, any other guarantor or by any other party, and the liability
of each Guarantor hereunder shall not be affected or impaired by (a) any direction as to
application of payment by the Borrower or by any other party, or (b) any other continuing or other
Guaranty, undertaking or maximum liability of a guarantor or of any other party as to the
Indebtedness of the Borrower, or (c) any payment on or in reduction of any such other Guaranty
Obligation or undertaking except to the extent such payment is applied to the Obligations or such
reduction results from application of a payment to the Obligations, or (d) any dissolution,
termination or increase, decrease or change in personnel by the Borrower, or (e) any payment made
to any Bank or the Agent on the amounts which the Banks or the Agent repay the Borrower pursuant to
a court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief
proceeding, and each Guarantor waives any right to the deferral or modification of its obligations
hereunder by reason of any such proceeding.



11.3 Obligations Independent. The obligations of each Guarantor hereunder are
independent of the obligations of any other Guarantor, any other guarantor or the Borrower, and a
separate action or actions may be brought and prosecuted against each Guarantor whether or not
action is brought against any other Guarantor, any other guarantor or the Borrower and whether or
not any other Guarantor, any other guarantor or the Borrower be joined in any such action or
actions. Each Guarantor waives, to the fullest extent permitted by law, the benefit of any statute
of limitations affecting its liability hereunder or the enforcement thereof. Any payment by the
Borrower or other circumstance which operates to toll any statute of limitations as to the Borrower
shall operate to toll the statute of limitations as to each Guarantor.



11.4 Waiver of Notice. Each Guarantor hereby waives notice of acceptance of this
Agreement and notice of any liability to which it may apply, and waives promptness, diligence,
presentment, demand of payment, protest, notice of dishonor or nonpayment of any such
liabilities, suit or taking of other action by the Agent or any Bank against, and any other notice
to, any party liable thereon (including such Guarantor or any other guarantor).


 


- 101 -









 





11.5 Guarantee of Payment. This Agreement is a guarantee of payment and not of
collection. The Agent or any Bank may at any time and from time to time without the consent of, or
notice to, any Guarantor, without incurring responsibility to such Guarantor, without impairing or
releasing the obligations of such Guarantor hereunder, upon or without any terms or conditions and
in whole or in part:




	 	(i)	 	change the manner, place or terms of payment of, and/or change or extend the
time of payment of, renew or alter, any of the Obligations, any security therefor, or
any liability incurred directly or indirectly in respect thereof, and the guarantee
made in this Agreement shall apply to the Obligations as so changed, extended,
renewed or altered;

	 
	 	(ii)	 	sell, exchange, release, surrender, realize upon or otherwise deal with, in
any manner and in any order, any property by whomsoever at any time pledged or
mortgaged to secure, or howsoever securing, the Obligations or any liabilities
(including any of those hereunder) incurred directly or indirectly in respect thereof
or hereof, and/or any offset thereagainst;


exercise or refrain from exercising any rights against the Borrower or any Guarantor
or others or otherwise act or refrain from acting;

	 
	 	(iv)	 	settle or compromise any of the Obligations, any security therefor or any
liability (including any of those hereunder) incurred directly or indirectly in
respect thereof or hereof, and may subordinate the payment of all or any part thereof
to the payment of any liability (whether due or not) of the Borrower to creditors of
the Borrower;

	 
	 	(v)	 	apply any sums by whomsoever paid or howsoever realized to any liability or
liabilities of the Borrower to the Banks regardless of what liabilities of the
Borrower remain unpaid;

	 
	 	(vi)	 	consent to or waive any breach of, or any act, omission or default under any
Senior Indebtedness, any documents evidencing the Senior Indebtedness, or any of
other instrument or agreement, or otherwise amend, modify or supplement the Senior
Indebtedness, any documents evidencing the Senior Indebtedness, or any other
instrument or agreement; and/or

	 
	 	(vi)	 	fail to perfect any Lien that may be granted to the Agent or to or for the
benefit of any of the Banks to secure any of the Obligations.





 


- 102 -









 





11.6 Obligations Unconditional. (a) The obligations of each Guarantor under this
Agreement are absolute and unconditional and shall remain in full force and effect without regard
to, and shall not be released, suspended, discharged, terminated (except in accordance with the
terms hereof) or otherwise affected by, any circumstance or occurrence whatsoever, including
without limitation: (i) any action or inaction by the Agent or the Banks as
contemplated in Section 11.5; (ii) any invalidity, irregularity or unenforceability of all
or part of the Obligations or of any security therefor; or (iii) to the extent permitted by
applicable law, any other act or circumstance that might otherwise constitute a legal or equitable
discharge or defense of a surety or a guarantor. The obligations of each Guarantor hereunder are
primary obligations of each Guarantor.



(b) The obligations of each Guarantor hereunder shall be automatically reinstated if and to
the extent that for any reason any payment by or on behalf of the Borrower in respect of the
Obligations is rescinded or must be otherwise returned by any holder of any of the Obligations,
whether as a result of any proceedings in bankruptcy or reorganization or otherwise.



11.7 Continuing Guarantee. This Agreement is a continuing one and all liabilities to
which it applies (or may apply) under the terms hereof shall be conclusively presumed to have been
created in reliance hereon. No failure or delay on the part of the Agent or any Bank in exercising
any right, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and remedies herein
expressly specified are cumulative and not exclusive of any rights or remedies which the Agent or
any Bank would otherwise have. No notice to or demand on any Guarantor in any case shall (i)
entitle such Guarantor to any other further notice or demand in similar or other circumstances
except for any notice or demand required hereunder or (ii) constitute a waiver of the rights of
the Agent or any Bank to any other or further action in any circumstances without notice or
demand. It is not necessary for the Agent or any Bank to inquire into the capacity or powers of
the officers, directors, partners or agents acting or purporting to act on behalf of any Guarantor
or the Borrower, and any Obligations made or created in reliance upon the professed exercise of
such powers shall be guaranteed hereunder.



11.8 Subordination. Any Indebtedness of the Borrower now or hereafter held by any
Guarantor, whether arising by subrogation, contribution or otherwise, is hereby subordinated to
the Obligations as provided for below; and such Indebtedness of the Borrower to any Guarantor, if
the Agent, after an Event of Default has occurred and is continuing, so requests, shall be
collected, enforced and received by such Guarantor as trustee for the Banks and be paid over to
the Agent on account of the Obligations, but without affecting or impairing in any manner the
liability of such Guarantor under the other provisions of this Agreement. Prior to the transfer to
any non-Affiliate by any Guarantor of any note or negotiable instrument evidencing any
Indebtedness of the Borrower to such Guarantor, such Guarantor shall mark such note or negotiable
instrument with a legend, acceptable to the Agent, that the same is subject to this subordination.


 


- 103 -









 





11.9 Exhaustion of Remedies. (a) Each Guarantor waives any right (except as shall be
required by applicable statute and cannot be waived) to require the Agent or the Banks to (i)
proceed against the Borrower, any other Guarantor or any other Person, (ii) proceed against or
exhaust any security held from the Borrower, any other Guarantor or any other Person or (iii)
pursue any other remedy in the Agent’s or the Banks’ power whatsoever. Each Guarantor waives any
defense based on or arising out of any defense of the Borrower, any other Guarantor or any other
Person other than payment in full of the Obligations, including without limitation
any defense based on or arising out of the disability of the Borrower, any other Guarantor or any
other party, or the unenforceability of the Obligations or any part thereof from any cause, or the
cessation from any cause of the liability of the Borrower other than payment in full of the
Obligations. The Agent on behalf of the Banks may, at its election, foreclose on any security held
by the Agent or the Banks by one or more judicial or nonjudicial sales, whether or not every
aspect of any such sale is commercially reasonable (to the extent such sale is permitted by
applicable law), or exercise any other right or remedy the Agent or the Banks may have against the
Borrower or any other Person, or any security, without affecting or impairing in any way the
liability of any Guarantor hereunder except to the extent the Obligations have been paid. Each
Guarantor waives any defense arising out of any such election by the Agent or the Banks, even
though such election operates to impair or extinguish any right of reimbursement or subrogation or
other right or remedy of such Guarantor against the Borrower or any other Person or any security.



(b) Each Guarantor waives all presentments, demands for performance, protests and notices,
including without limitation notices of nonperformance, notice of protest, notices of dishonor,
notices of acceptance of this Agreement, and notices of the existence, creation or incurring of
new or additional Indebtedness. Each Guarantor assumes all responsibility for being and keeping
itself informed of the Borrower’s financial condition and assets, and of all other circumstances
bearing upon the risk of nonpayment of the Obligations and the nature, scope and extent of the
risks which such Guarantor assumes and incurs hereunder, and agrees that the Agent and the Banks
shall have no duty to advise any Guarantor of information known to them regarding such
circumstances or risks.



(c) Each Guarantor understands, is aware and hereby acknowledges that to the extent the
Obligations are secured by real property located- in the State of California, such
Guarantor shall be liable for the full amount of its liability hereunder notwithstanding
foreclosure on such real property by trustee sale or any other reason impairing each Guarantor’s
or the Agent’s or any Bank’s right to proceed against the Borrower. Each Guarantor hereby waives,
to the fullest extent permitted by law, all rights and benefits under Section 2809 of the
California Civil Code purporting to reduce a guarantor’s obligation in proportion to the principal
obligation. Each Guarantor hereby waives all rights and benefits under Section 580a of the
California Code of Civil Procedure purporting to limit the amount of any deficiency judgment which
might be recoverable following the occurrence of a trustee’s sale under a deed of trust and all
rights and benefits under Section 580b of the California Code of Civil Procedure stating that no
deficiency judgment may be recovered on a real property purchase money obligation. Each Guarantor
further understands, is aware and hereby acknowledges that if the Agent on behalf of the Banks
elects to nonjudicially foreclose on any real property security located in the State of
California, any right of subrogation of the Guarantors against the Agent or the Banks may be
impaired or extinguished and that as a result of such impairment or extinguishment of subrogation
rights, each Guarantor will have a defense to a deficiency judgment arising out of the operation
of (i) Section 580d of the California Code of Civil Procedure which states that no deficiency
judgment may be recovered on a note secured by a deed of trust on real property in case such real
property is sold under the power of sale contained in such deed of trust, and (ii) related
principles of estoppel. To the fullest extent permitted by law, each Guarantor hereby waives all
rights and benefits and any defense arising out of the operation of Section 580d of the California
Code of Civil Procedure and related principles


 


- 104 -









 





of estoppel, even though such election operates to
impair or extinguish any right of reimbursement or subrogation or other right or remedy of such Guarantor
against the Borrower or any other party or any security. In addition, each Guarantor hereby waives,
to the fullest extent permitted by applicable law and without limiting the generality of the
foregoing or any other provision hereof, all rights and benefits which might otherwise be available
to such Guarantor under Section 726 of the California Code of Civil Procedure and all rights and
benefits which might otherwise be available to such Guarantor under California Civil Code Sections
2809, 2810, 2815, 2819, 2821, 2839, 2845, 2848, 2849, 2850, 2899, 3275 and 3433 (and any analogous
or successor provisions to such Sections). Furthermore, each Guarantor hereby waives, to the
fullest extent permitted by law, the benefits of the provisions of Nevada Revised Statutes §§
40.430 et seq., 40.451 et seq, and 40.465 et seg. (and any analogous or successor
provisions to such Sections).



(d) Each Guarantor agrees that, as between such Guarantor and the Agent and Banks, the
Obligations may be declared to be forthwith due and payable (and shall be deemed to have become
automatically due and payable) in accordance with the terms thereof for purposes of Section
11.1 hereof notwithstanding any stay, injunction or other prohibition preventing such
declaration (or preventing such Obligations from becoming automatically due and payable) as against
the Borrower and that, in the event of such declaration (or such Obligations being deemed to have
become automatically due and payable) such Obligations (whether or not due and payable by the
Borrower) shall forthwith become due and payable by each Guarantor for purposes of Section
11.1.



11.10 Reinstatement. If claim is ever made upon the Agent or any Bank for repayment or
recovery of any amount or amounts received in payment or on account of any of the Obligations and
any of the aforesaid payees repays all or part of said amount by reason of (a) any judgment, decree
or order of any court or administrative body having jurisdiction over such payee or any of its
property or (b) any settlement or compromise of any such claim effected by such payee with any such
claimant (including the Borrower), then and in such event each Guarantor agrees that any such
judgment, decree, order, settlement or compromise shall be binding upon such Guarantor,
notwithstanding any revocation hereof or other instrument evidencing any liability of the Borrower,
and such Guarantor shall be and remain liable to the aforesaid payees hereunder for the amount so
repaid or recovered to the same extent as if such amount had never originally been received by any
such payee.


 


- 105 -









 





ARTICLE XII




MISCELLANEOUS




12.1 Amendments and Waivers. No amendment or waiver of any provision of this Agreement
or any other Loan Document, and no consent to any departure by any Obligor or any other Credit
Party therefrom, shall be effective unless in writing signed by the Required Banks and the
Borrower, and acknowledged by the Agent, and each such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given; provided,
however, that no such amendment, waiver or consent shall, unless in writing and signed by
all the Banks and the Borrower do any of the following:



(a) increase or extend the Commitment of any Bank (or reinstate any Commitment terminated
pursuant to Section 9.2);



(b) postpone or delay any date fixed by this Agreement or any other Loan Document for any
payment of principal, interest, fees or other amounts due to the Banks (or any of them) hereunder
or under any other Loan Document



(c) reduce the principal of, or the rate of interest specified herein on any Loan, or
(subject to clause (iv) below) any fees or other amounts payable hereunder or under any
other Loan Document;



(d) change the definition of “Required Banks” or change the percentage of the Commitments or
of the aggregate unpaid principal amount of the Loans which is required for the Banks or any of
them to take any action hereunder;



(e) amend this Section, or Section 2.14, or any provision herein providing for consent
or other action by all Banks;



(f) release either or both of the Guarantors from their obligations under Article XI hereof;



(g) release all or substantially all of the Restricted Subsidiaries from
their obligations under the Subsidiary Guarantee; or




(h) release all or substantially all the collateral, if any, securing the Obligations;



and, provided, further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Agent in addition to the Required Banks or all the Banks, as the case may
be, affect the rights or duties of the Agent under this Agreement or any other Loan Document, (ii)
no amendment, waiver or consent shall, unless in writing and signed by the Issuing Bank in addition
to the Required Banks or all the Banks, as the case may be, affect the rights or duties of the
Issuing Bank under this Agreement or any L/C-Related Documents relating to any Letter of Credit
Issued or to be Issued by it, (iii) no amendment, waiver or consent shall, unless in writing and
signed by the Swing Line Bank in addition to the Banks required above, affect the rights or duties
of the Swing Line Bank under this Agreement and (iv) the Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed by the parties thereto.



In connection with a proposed merger, consolidation or sale of all or substantially all of the
assets of the Borrower in accordance with Section 8.8(a)(iii) or (b)(iii) to a
corporation, the parties agree (i) to effect, simultaneously with such transaction, all necessary
and appropriate modifications to the terms and conditions of this Agreement and the other Loan
Documents to which it is a party (including without limitation the ability of the Borrower to make
payments under Section 8.5, taking into account the effect of any change in the tax status
of the Borrower on its financial condition and the applicable financial covenants) to reflect the
corporate existence of such successor corporation and any other matters in form acceptable to the
Required Banks, provided, that such modified terms and conditions convey to the parties
substantially the same rights and obligations provided under the Loan Documents to which it is a
party
immediately prior to such transaction, and (ii) that any Default described in Section
9.1(j) which would result from such transaction shall not be asserted by the Agent or any Bank
if after giving effect to such transaction UGI shall own directly or indirectly at least 51% of
the voting shares of the corporation that is the successor to the Borrower.


 


- 106 -









 





In the event a Bank or Participant (as hereinafter defined) shall refuse to enter into or consent
to any amendment, waiver or other modification of any provision of this Agreement or any other
Loan Document, and such Bank’s or Participant’s consent is necessary for such amendment, waiver or
modification to become effective, the Borrower may pay Obligations (including, with respect to
Letter of Credit, cash collateralization of an interest therein) outstanding to any such
nonconsenting Bank or to any Originating Bank having participated interests to any such
nonconsenting Participant and reduce or eliminate any such Bank’s Commitment; provided,
that the Borrower may take such action only if Banks representing at least 80% of the outstanding
Commitments necessary therefor have entered into or consented to such amendment, waiver or
modification and no Default or Event of Default then exists.



12.2 Notices and Other Communications; Facsimile Copies. (a) General. Unless
otherwise expressly provided herein, all notices and other communications provided for hereunder
shall be in writing (including by facsimile transmission). All such written notices shall be
mailed, faxed or delivered to the applicable address, facsimile number or (subject to
subsection (c) below) electronic mail address, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the applicable telephone
number, if to the Borrower, the Agent, the Issuing Bank, the Swing Line Bank or any Bank, to the
address, facsimile number, electronic mail address or telephone number specified for such Person
on Schedule 12.2 or to such other address, facsimile number, electronic mail address or
telephone number as shall be designated by such party in a notice to the other parties. All such
notices and other communications shall be deemed to be given or made upon the earlier to occur of
(i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by courier,
when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail, four
Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when
sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail (which
form of delivery is subject to the provisions of subsection (c) below), when delivered;
provided, however, that notices and other communications to the Agent, the Issuing
Bank and the Swing Line Bank pursuant to Articles II and III shall not be effective until
actually received by such Person. In no event shall a voicemail message be effective as a notice,
communication or confirmation hereunder.



(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents may be
transmitted and/or signed by facsimile. The effectiveness of any such documents and signatures
shall, subject to applicable law, have the same force and effect as manually-signed originals and
shall be binding on all Credit Parties, the Agent and the Banks. The Agent may also require that
any such documents and signatures be confirmed by a manually-signed original thereof;
provided, however, that the failure to request or deliver the same shall not limit
the effectiveness of any facsimile document or signature.


 


- 107 -









 





(c) Reliance by Agent and Banks. The Agent and the Banks shall be entitled to rely
and act upon any notices (including telephonic Notices of Borrowing) purportedly given
by or on behalf of the Borrower even if (i) such notices were not made in a manner specified
herein, were incomplete or were not preceded or followed by any other form of notice specified
herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation
thereof The Borrower shall indemnify each Agent-Related Person and each Bank from all losses,
costs, expenses and liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of the Borrower. All telephonic notices to and other
communications with the Agent may be recorded by the Agent, and each of the parties hereto hereby
consents to such recording.



12.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Agent or any Bank, any right, remedy, power or privilege hereunder,
shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege.



12.4 Costs and Expenses. The Borrower shall:



(a) whether or not the transactions contemplated hereby are consummated, pay or reimburse
Wachovia (including in its capacity as Agent) within five Business Days after demand and receipt by
the Borrower of reasonable supporting documentation for all reasonable costs and expenses incurred
by Wachovia (including in its capacity as Agent) in connection with the development, preparation,
delivery, administration and execution of this Agreement, any Loan Document and any other documents
prepared in connection herewith or therewith, and the consummation of the transactions contemplated
hereby and thereby, including Attorney Costs (excluding allocated costs of internal legal counsel)
incurred by Wachovia (including in its capacity as Agent) with respect thereto; and



(b) pay or reimburse the Agent within five Business Days after demand and receipt by the
Borrower of reasonable supporting documentation for all reasonable costs and expenses incurred by
the Agent in connection with any amendment, supplement, waiver or modification to (in each case,
whether or not consummated), this Agreement, any Loan Document and any other documents prepared in
connection herewith or therewith, and the consummation of the transactions contemplated hereby and
thereby, including Attorney Costs incurred by the Agent with respect thereto (provided,
that the fees of any law firm or other external counsel, and the allocated costs of internal legal
services, shall not both be reimbursed with respect to any amendment, supplement, waiver or
modification relating to the same or any substantially similar matter); and



(c) pay or reimburse the Agent, the Arranger and each Bank within five Business Days after
demand and receipt by the Borrower of reasonable supporting documentation for all reasonable costs
and expenses (including Attorney Costs) incurred by them in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies under this Agreement or any other
Loan Document during the existence of an Event of Default or after acceleration of the Loans
(including in connection with any “workout” or restructuring regarding the Loans, and including in
any Insolvency Proceeding or appellate proceeding).



 


- 108 -









 







The foregoing costs and expenses shall include all search, filing, recording, title insurance and
fees and taxes related thereto incurred by the Agent, and, with respect to those costs and expenses
referred to in Section 12.4(b) or 12.4(c) above, the reasonable cost of independent
public accountants, appraisers and other outside experts retained by the Agent. The agreements in
this Section shall survive the termination of the Commitments and repayment of all other
Obligations.



12.5 Indemnity. Whether or not the transactions contemplated hereby are consummated,
the Obligors shall indemnify and hold harmless each Agent-Related Person, the Arrangers, the
Issuing Bank, each Bank and their respective affiliates, directors, officers, employees and agents
(collectively, the “Indemnified Parties”) from and against any and all losses, claims, damages
(other than consequential or exemplary damages), liabilities and reasonable out-of-pocket expenses
(including, without limitation, reasonable fees and disbursements of counsel, amounts paid in
settlement and court costs) (collectively, the “Indemnified Liabilities”) which may be incurred by
any such Indemnified Party as a result of a claim by a third party or asserted by a third party
against any such Indemnified Party, in each case, in connection with or arising out of or in any
way relating to or resulting from any transaction or proposed transaction (whether or not
consummated) contemplated to be financed with the proceeds of any Loan or other financial
accommodation contemplated hereby, and the Obligors hereby agree to reimburse each such Indemnified
Party for any Attorneys’ Costs or other out-of-pocket expenses incurred in connection with
investigating, defending or participating in any action or proceeding (whether or not such
Indemnified Party is a party to such action or proceeding) out of which any such losses, claims,
damages, liabilities or expenses may arise; provided, however, that the Obligors
shall not be required to reimburse the expenses of more than one counsel for all Indemnified
Parties except to the extent that different Indemnified Parties shall have conflicting interests.
Notwithstanding anything herein to the contrary, the Obligors shall not be liable or responsible
for losses, claims, damages, costs and expenses incurred by any Indemnified Party arising out of or
relating to such Indemnified Party’s own gross negligence or willful misconduct as either
determined in a final, nonappealable judgment by a court of competent jurisdiction or otherwise
agreed to in writing by such Indemnified Party and the Obligors. If for any reason the
indemnification provided for herein is unavailable to any Indemnified Party or insufficient to hold
it harmless as and to the extent contemplated hereby, then the Obligors hereby agree to contribute
to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage,
liability or expense in such proportion as is appropriate to reflect the relative benefits received
by the Obligors, on the one hand, and such Indemnified Party, on the other hand, and also the
respective fault of the Obligors, on the one hand, and such Indemnified Party, on the other hand,
as the case may be, as well as any other relevant equitable considerations. This Section
12.5 shall survive the termination of this Agreement.



12.6 Liability. (a) The liability of the Obligors hereunder and under the Loan
Documents shall be absolute, unconditional and irrevocable irrespective of:



(i) any lack of validity, legality or enforceability of this Agreement, any Note or any other
Loan Document;



(ii) the failure of any Bank




(A) to enforce any right or remedy against any other Person (including
any guarantor) under the provisions of this Agreement, the Note, any other
Loan Document or otherwise, or


 


- 109 -









 






(B) to exercise any right or remedy against any guarantor of, or
collateral, if any, securing, any Obligations;



(iii) any change in the time, manner or place of payment of, or in any other term of, all or
any of the Obligations, or any other extension, compromise or renewal of any Obligations;



(iv) any reduction, limitation, impairment or termination of any Obligations with respect to
any other Credit Party for any reason including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to (and the Borrower hereby waives any right to
or claim of) any defense or setoff, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality, nongenuineness, irregularity, compromise, unenforceability of, or
any other event or occurrence affecting, any Obligations with respect to any other Credit Party;



(v) any addition, exchange, release, surrender or nonperfection of any collateral, or any
amendment to or waiver or release or addition of, or consent to departure from, any guaranty, held
by any Bank securing any of the Obligations; or



(vi) any other circumstance which might otherwise constitute a defense available to, or a
legal or equitable discharge of, any other Credit Party, any surety or any guarantor.



The Borrower agrees that its liability hereunder shall continue to be effective or be reinstated,
as the case may be, if at any time any payment (in whole or in part) of any of the Obligations is
rescinded or must be restored by any Bank, upon the insolvency, bankruptcy or reorganization of
the Borrower as though such payment had not been made.



The Obligors hereby expressly waive: (a) notice of the Banks’ acceptance of this Agreement; (b)
notice of the existence or creation or non-payment of all or any of the Obligations; (c)
presentment, demand, notice of dishonor, protest, and all other notices whatsoever other than
notices expressly provided for in this Agreement and (d) all diligence in collection or protection
of or realization upon the Obligations or any thereof any obligation hereunder, or any security
for or guaranty of any of the foregoing.



No delay on any of the Banks’ part in the exercise of any right or remedy shall operate as a
waiver thereof, and no single or partial exercise by any of the Banks of any right or remedy,
shall preclude other or further exercise thereof or the exercise of any other right or remedy. No
action of any of the Banks permitted hereunder shall in any way affect or impair any such Banks’
rights or Obligors’ obligations under this Agreement.


 


- 110 -









 





Each Obligor hereby represents and warrants to each of the Banks that it now has and will continue
to have independent means of obtaining information concerning the other Obligors’ affairs,
financial condition and business. The Banks shall not have any duty or responsibility to
provide any Obligor with any credit or other information concerning the Obligors’ Subsidiaries’
affairs, financial condition or business which may come into the Banks’ possession. Each of the
Obligors agrees that any action or notice which is required or authorized to be taken or given or
received under this Agreement or any of the Loan Documents shall be taken, given or received by
the Borrower acting on behalf of the other Credit Parties (and not by Petrolane or the General
Partner), and the other Credit Parties agree to be bound by, and authorizes the Agent and each
Bank to rely upon, any such action or notice as if fully authorized by each of the Obligors.



12.7 Payments Set Aside. To the extent that the Borrower makes a payment to the Agent
or the Banks, or the Agent or the Banks exercise their right of set-off, and such payment or the
proceeds of such set-off or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any settlement entered
into by the Agent or such Bank in its discretion) to be repaid to a trustee, receiver or any other
party, in connection with any Insolvency Proceeding or otherwise, then (a) to the extent of such
recovery the obligation or part thereof originally intended to be satisfied shall be revived and
continued in full force and effect as if such payment had not been made or such set-off had not
occurred, and (b) each Bank severally agrees to pay to the Agent upon demand its pro rata share of
any amount so recovered from or repaid by the Agent, plus interest thereon from the date of such
demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from
time to time in effect.



12.8 Successors and Assigns. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors and assigns, except
that no Obligors may assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of the Agent and each Bank. Any attempted assignment in
violation of this provision shall be null and void.



12.9 Assignments, Participations. etc. (a) Any Bank may, with the written consent of
the Borrower, the Agent and the Issuing Bank, which consent of the Borrower shall not be
unreasonably withheld, at any time assign and delegate to one or more Eligible Assignees
(provided, that no written consent of the Borrower, the Agent or the Issuing Bank shall be
required in connection with any assignment and delegation by a Bank to (x) an Eligible Assignee
that is an Affiliate of such Bank or (y) another Bank (each an “Assignee”)) all, or any ratable
part of all, of the Loans, the Commitments and the other rights and obligations of such Bank
hereunder, in a minimum amount of $5,000,000; provided, however, that the
Borrower, the Agent and the Issuing Bank may continue to deal solely and directly with such Bank
in connection with the interest so assigned to an Assignee until (i) written notice of such
assignment, together with payment instructions, addresses and related information with respect to
the Assignee, shall have been given to the Borrower, the Agent and the Issuing Bank by such Bank
and the Assignee; (ii) such Bank and its Assignee shall have delivered to the Borrower, the Agent
and the Issuing Bank an Assignment and Acceptance in the form of Exhibit E (an “Assignment
and Acceptance”) and (iii) the assignor Bank or Assignee has paid to the Agent a processing fee in
the amount of $4,000; and provided, further, each Bank’s Pro Rata Share shall be
the same in each type of Commitment.


 


- 111 -









 





(b) From and after the date that the Agent notifies the assignor Bank that it has received
(and the Borrower, the Agent and the Issuing Bank have provided their consent with
respect to) an executed Assignment and Acceptance and payment of the above-referenced processing
fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall
have the rights and obligations of a Bank under the Loan Documents, and (ii) the assignor Bank
shall, to the extent that rights and obligations hereunder and under the other Loan Documents have
been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Loan Documents (and, in the case of an Assignment and
Acceptance covering all of the assigning Bank’s rights and obligations under this Agreement, such
Bank shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 4.1, 443, 44A, 12.4 and 12.5 with respect to facts and
circumstances occurring prior to the effective date of such assignment).



(c) Within five Business Days after its receipt of notice by the Agent that it has received an
executed Assignment and Acceptance and payment of the processing fee (and provided, that
the Borrower consents to such assignment in accordance with Section 12.9(a)), the Borrower
shall, if requested by the Assignee or the assignor Bank thereunder, execute and deliver to the
Agent new Notes evidencing such Assignee’s assigned Loans and Commitments and, if the assignor Bank
has retained a portion of its Loans and its Commitment, replacement Notes in the principal amount
of the Loans and Commitments retained by the assignor Bank (such Notes to be in exchange for, but
not in payment of, the Notes held by such Bank) and the assignor Bank shall deliver its Note or
Notes marked “exchanged” or “cancelled,” as applicable, to the Agent. Immediately upon payment of
the processing fee payment under the Assignment and Acceptance and the satisfaction of the other
conditions set forth in Section 12.9(a), this Agreement shall be deemed to be amended to
the extent, but only to the extent, necessary to reflect the addition of the Assignee and the
resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each
Assignee shall reduce such Commitments of the assigning Bank pro tanto.



(d) The Agent shall maintain at its address referred to in Schedule 12.2 a copy of
each Assignment and Acceptance delivered to and accepted by it and a register for the recordation
of the names and addresses of the Banks and the Commitment of, and principal amount of the Loans
owing to, each Bank from time to time (the “Register”). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the
Banks may treat each Person whose name is recorded in the Register as a Bank hereunder for all
purposes of this Agreement. The Register shall be available for inspection by the Borrower or any
Bank at any reasonable time and from time to time upon reasonable prior notice. Any assignment of
any Loan or other obligations shall be effective only upon an entry with respect thereto being made
in the Register.



(e) Any Bank may at any time sell to one or more commercial banks or other Persons not
Affiliates of the Borrower (a “Participant”) participating interests in any Loans, the Commitment
of that Bank and the other interests of that Bank (the “Originating Bank”) hereunder and under the
other Loan Documents; provided, however, that (i) the Originating Bank’s
obligations under this Agreement shall remain unchanged, (ii) the Originating Bank shall remain
solely responsible for the performance of such obligations, (iii) the Borrower, the Agent, the
Issuing Bank and the other Banks shall continue to deal solely and directly with the



 


- 112 -









 







Originating
Bank in connection with the Originating Bank’s rights and
obligations under this Agreement and the other Loan Documents. Any agreement or instrument pursuant to which a Bank sells
such a participation shall provide that such Bank shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Bank will not, without
the consent of the Participant, agree to any amendment, waiver or other modification described in
the first proviso to Section 12.1 that directly affects such Participant. In the case of
any such participation, the Participant shall be entitled to the benefit of Sections 4.1,
4.3, 4.4 and 12.5 as though it were also a Bank hereunder (but not in any greater amounts
than would have been payable to the Bank selling the participation if no participation were sold),
and not have any rights under this Agreement, or any of the other Loan Documents, and all amounts
payable by the Borrower hereunder shall be determined as if such Bank had not sold such
participation; except that, if amounts outstanding under this Agreement are due and unpaid, or
shall have been declared or shall have become due and payable upon the occurrence of an Event of
Default, each Participant shall be deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement to the same extent as if the amount
of its participating interest were owing directly to it as a Bank under this Agreement,
provided such Participant agrees to be subject to Section 2.14 as though it were a
Bank.



(f) Nothing contained in this Agreement shall prevent a Bank from pledging its interest in
its Loans to a Federal Reserve Bank in the Federal Reserve System of the United States in
accordance with applicable law.



(g) After payment in full of, and satisfaction of all Obligations under, any Note, the Bank
or other party holding such Note agrees to promptly return such Note marked “Paid in Full” to the
Borrower.



(h) Notwithstanding
the foregoing provisions of this Section 12.9, no
assignment or participation may be made if such assignment or participation involves, or could
involve, the use of assets that constitute, or may be deemed under ERISA, the Code or any other
applicable law, or any ruling or regulation issued thereunder, or any court decision, to
constitute the assets of any employee benefit plan (as defined in section 3(3) of ERISA) or any
plan as defined in section 4975(e)(1) of the Code).



12.10 Confidentiality. (a) Each of the Agent and the Banks agrees to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed



(i) to its and its Affiliates’ directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such Information and instructed
to keep such Information confidential); (ii) to the extent requested by any regulatory authority;
(iii) to the extent required by applicable laws or regulations or by any subpoena or similar legal
process; (iv) to any other party to this Agreement; (v) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder; (vi) subject to an agreement containing provisions substantially the same as
those of this Section, to (x) any Eligible Assignee of or Participant in, or any prospective
Eligible Assignee of or Participant in, any of its rights or obligations under this Agreement or
(y) any direct or indirect contractual counterparty or prospective counterparty (or such
contractual




 


- 113 -












 




counterparty’s or prospective counterparty’s professional advisor) to any credit
derivative transaction relating to obligations of the Credit Parties; (vii) with the written consent of the
Borrower; (viii) to the extent such Information (ix) becomes publicly available other than as a
result of a breach of this Section or (x) becomes available to the Agent or any Bank on a
nonconfidential basis from a source other than a Credit Party; or (xi) to the National Association
of Insurance Commissioners or any other similar organization.The Agent and the Banks may disclose
the existence of this Agreement and information about this Agreement to market data collectors,
similar service providers to the lending industry, and service providers to the Agent and the
Banks in connection with the administration and management of this Agreement, the other Loan
Documents, the Commitments, and the Credit Extensions; provided, however, that
information disclosed by the Agent or any Bank to any such market data collectors or similar
service providers shall be of a type generally provided to such Persons in other transactions. For
the purposes of this Section 12.10, “Information” means all information received from any
Credit Party relating to any Credit Party or its business.



(c) The Borrower acknowledges that one or more of the Banks may treat its Loans as part of a
transaction that is subject to Treasury Regulation Section 1.6011-4 or Section 301.6112-1, and the
Agent and such Bank or Banks, as applicable, may (i) maintain such lists or other records as they
may determine are required by such Treasury Regulations and (ii) file such IRS forms as they may
determine are required by such Treasury Regulations with written notice by the party making such
filing to the Borrower.



(d) Any Person required to maintain the confidentiality of Information as provided in this
Section 12.10 shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the confidentiality of such Information
as such Person would accord to its own confidential information. Each of the Agent, the Banks and
the Participants shall promptly notify the Borrower of its receipt of any subpoena or similar
process or authority, unless prohibited therefrom by the issuing Person.



12.11 Set-off. In addition to any rights and remedies of the Banks provided by law,
upon the occurrence and during the continuance of any Event of Default, each Bank is authorized at
any time and from time to time, without prior notice to the Borrower or any other Credit Party,
any such notice being waived by the Borrower (on their own behalf and on behalf of each Credit
Party) to the fullest extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held by, and other indebtedness at
any time owing by, such Bank to or for the credit or the account of the respective Credit Party
against any and all Obligations owing to such Bank hereunder or under any other Loan Document, now
or hereafter existing, irrespective of whether or not the Agent or such Bank shall have made
demand under this Agreement or any other Loan Document and although such Obligations may be
contingent or unmatured or denominated in a currency different from that of the applicable deposit
or indebtedness. Each Bank agrees promptly to notify the Borrower and the Agent after any such
set-off and application made by such Bank; provided, however, that the failure to
give such notice shall not affect the validity of such set-off and application.



12.12 Notification of Addresses; etc. Each Bank shall notify the Agent in writing of
any changes in the address to which notices to the Bank should be directed, of addresses of any
Lending Office, of payment instructions in respect of all payments to be made to it hereunder and
of such other administrative information as the Agent shall reasonably request.


 


- 114 -









 





12.13 Counterparts. This Agreement may be executed in any number of separate
counterparts, each of which, when so executed, shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute but one and the same instrument.



12.14 Severability. The illegality or unenforceability of any provision of this
Agreement or any instrument or agreement required hereunder shall not in any way affect or impair
the legality or enforceability of the remaining provisions of this Agreement or any instrument or
agreement required hereunder.



12.15 No Third Parties Benefited. This Agreement is made and entered into for the sole
protection and legal benefit of the Obligors, the Banks, the Agent and the Agent-Related Persons,
and their permitted successors and assigns, and no other Person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or claim in connection with, this
Agreement or any of the other Loan Documents.



12.16 Governing Law and Jurisdiction. (a) THIS AGREEMENT AND OTHER LOAN DOCUMENTS
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK;
PROVIDED, THAT THE AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
THE LETTERS OF CREDIT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE ISP98. AS TO
MATTERS NOT COVERED BY THE ISP98, THE LETTER OF CREDIT SHALL BE GOVERNED BY THE LAWS OF THE STATE
OF NEW YORK, INCLUDING, TO THE EXTENT NOT INCONSISTENT WITH THE ISP98, THE UNIFORM COMMERCIAL CODE
AS IN EFFECT IN THE STATE OF NEW YORK.



(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE OBLIGORS, THE
AGENT AND THE BANKS EACH CONSENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE OBLIGORS,
THE AGENT AND THE BANKS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE
TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR
ANY DOCUMENT RELATED HERETO. THE OBLIGORS, THE AGENT AND THE BANKS EACH WAIVE PERSONAL SERVICE OF
ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK
LAW.


 


- 115 -









 





12.17 Waiver of Jury Trial. EACH OF THE OBLIGORS, THE BANKS AND THE AGENT WAIVES ITS
RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED
TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE
PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH
RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH OF THE OBLIGORS, THE BANKS AND THE
AGENT AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY.
WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL
BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR
THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS.



12.18 Entire Agreement. This Agreement, together with the other Loan Documents,
comprises the complete and integrated agreement of the parties on the subject matter hereof and
thereof and supersedes all prior agreements, written or oral, on such subject matter. In the event
of any conflict between the provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided, that the inclusion of supplemental
rights or remedies in favor of the Agent or the Banks in any other Loan Document shall not be
deemed a conflict with this Agreement. Each Loan Document was drafted with the joint participation
of the respective parties thereto and shall be construed neither against nor in favor of any
party, but rather in accordance with the fair meaning thereof.



12.19 Interest Rate Limitation. Notwithstanding anything to the contrary contained in
any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not
exceed the maximum rate of non-usurious interest permitted by applicable law (the “Maximum Rate”).
If the Agent or any Bank shall receive interest in an amount that exceeds the Maximum Rate, the
excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Borrower. In determining whether the interest contracted for, charged,
or received by the Agent or a Bank exceeds the Maximum Rate, such Person may, to the extent
permitted by applicable law, (a) characterize any payment that is not principal as an expense,
fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof,
and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of
interest throughout the contemplated term of the Obligations hereunder.


 


- 116 -









 





12.20 Survival of Representations and Warranties. All representations and warranties
made hereunder and in any other Loan Document or other document delivered pursuant hereto or
thereto or in connection herewith or therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will be relied upon by the Agent and
each Bank, regardless of any investigation made by the Agent or any Bank or on their behalf and
notwithstanding that the Agent or any Bank may have had notice or knowledge of any Default at the
time of any Credit Extension, and shall continue in full force and effect as long as any Loan or
any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall
remain outstanding.



12.21 Patriot Act . Each of the Banks and the Agent hereby notifies the Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)), it is required to obtain, verify and record information that identifies the
Borrower and the other Credit Parties, which information includes the name and address of the
Borrower and the other Credit Parties and other information that will allow such Bank or the Agent,
as applicable, to identify the Borrower and the other Credit Parties in accordance with such Act.


 


- 117 -









 





IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be duly executed
and delivered by their proper and duly authorized officers as of the day and year first above
written.



	 	 	 	 	 	 	 
	 	 	BORROWER:
	 
	 	 	 	 	 	 
	 	 	 	 	AMERIGAS PROPANE, L.P.
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	AMERIGAS PROPANE, INC., as
General Partner
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	Robert W. Krick
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Vice President, Treasurer and

Assistant Secretary
	 
	 	 	 	 	 	 
	 	 	GUARANTORS:
	 
	 	 	 	 	 	 
	 	 	 	 	AMERIGAS PROPANE, INC.
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	Robert W. Krick
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Vice President, Treasurer and

Assistant Secretary
	 
	 	 	 	 	 	 
	 	 	 	 	PETROLANE INCORPORATED
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	Robert W. Krick
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Vice President, Treasurer and

Assistant Secretary






[Credit Agreement Signature Page]



 


 









 





[Signature Page to Credit Agreement

with AmeriGas Propane, L.P.]




	 	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL

ASSOCIATION, as Agent, Issuing Bank, 

Swing Line Bank and a Bank
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Lawrence P. Sullivan
	 

	 	 	 	 
	 

	 	 	 	Name: Lawrence P. Sullivan
	 

	 	 	 	Title:   Director





 


 









 





Signature Page to Credit Agreement

with AmeriGas Propane, L.P.




	 	 	 	 	 
	 	 	CITIBANK, N.A.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Oscar Cragwell
	 

	 	 	 	 
	 

	 	 	 	Name: Oscar Cragwell
	 

	 	 	 	Title:   Vice President






 


 









 







[Signature Page to Credit Agreement

with AmeriGas Propane, L.P.]




	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Tara Narasiman
	 

	 	 	 	 
	 

	 	 	 	Name: Tara Narasiman
	 

	 	 	 	Title:   Associate





 


 









 





[Signature Page to Credit Agreement

with AmeriGas Propane, L.P.]




	 	 	 	 	 
	 	 	CREDIT SUISSE, CAYMAN ISLANDS BRANCH
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Thomas Cantello
	 

	 	 	 	 
	 

	 	 	 	Name: Thomas Cantello
	 

	 	 	 	Title:   Vice President
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Laurence Lapeyre
	 

	 	 	 	 
	 

	 	 	 	Name: Laurence Lapeyre
	 

	 	 	 	Title:   Associate





 


 









 





[Signature Page to Credit Agreement

with AmeriGas Propane, L.P.]




	 	 	 	 	 
	 	 	CITIZENS BANK OF PENNSYLVANIA
	 
	 	 	 	 
	 

	 	By:
	 	/s/ ILLEGIBLE
	 

	 	 	 	 
	 

	 	 	 	Name: ILLEGIBLE
	 

	 	 	 	Title:   ILLEGIBLE






 


 









 







[Signature Page to Credit Agreement

With AmeriGas Propane, L.P.]




	 	 	 	 	 
	 	 	MELLON BANK; N.A.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Thomas J. Tarasovich, Jr.
	 

	 	 	 	 
	 

	 	 	 	Name: Thomas J. Tarasovich, Jr.
	 

	 	 	 	Title:   Vice President





 


 









 





[Signature Page to Credit Agreement

with AmeriGas Propane, L.P.]




	 	 	 	 	 
	 

	 	NATIONAL CITY BANK

	 
	 	 	 	 
	 

	 	By:
	 	/s/ ILLEGIBLE
	 

	 	 	 	 
	 

	 	 	 	Name: ILLEGIBLE
	 

	 	 	 	Title:   Vice President





 


 









 





[Signature Page to Credit Agreement

with AmeriGas Propane, L.P.]




	 	 	 	 	 
	 	 	PNC BANK, NATIONAL ASSOCIATION
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Frank A. Pugliese
	 

	 	 	 	 
	 

	 	 	 	Name: Frank A. Pugliese
	 

	 	 	 	Title:   Senior Vice President





 


 









 





[Signature Page to Credit Agreement

with AmeriGas Propane, L.P.]




	 	 	 	 	 
	 

	 	MANUFACTURERS AND TRADERS TRUST COMPANY
	 
	 	 	 	 
	 

	 	By:
	 	 
	 

	 	 	 	 
	 

	 	 	 	Name: ILLEGIBLE

Title:   ILLEGIBLE







 


 











 




SCHEDULE 2.1




COMMITMENTS




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	REVOLVING	 	 	ACQUISITION	 	 	TOTAL	 
	BANK	 	COMMITMENT	 	 	COMMITMENT	 	 	COMMITMENT	 
	Wachovia Bank, National Association
	 	$	17,187,500	 	 	$	10,312,500	 	 	$	27,500,000	 
	Citibank, N.A.
	 	$	17,187,500	 	 	$	10,312,500	 	 	$	27,500,000	 
	JPMorgan Chase Bank, N.A.
	 	$	15,625,000	 	 	$	9,375,000	 	 	$	25,000,000	 
	Credit Suisse, Cayman Islands Branch
	 	$	15,625,000	 	 	$	9,375,000	 	 	$	25,000,000	 
	Citizens Bank of Pennsylvania
	 	$	13,125,000	 	 	$	7,875,000	 	 	$	21,000,000	 
	Mellon Bank, N.A.
	 	$	13,125,000	 	 	$	7,875,000	 	 	$	21,000,000	 
	National City Bank
	 	$	13,125,000	 	 	$	7,875,000	 	 	$	21,000,000	 
	PNC Bank, National Association
	 	$	13,125,000	 	 	$	7,875,000	 	 	$	21,000,000	 
	Manufacturers and Traders Trust Company
	 	$	6,875,000	 	 	$	4,125,000	 	 	$	11,000,000	 
	 
	 	 	 	 	 	 	 	 
	TOTAL
	 	$	125,000,000	 	 	$	75,000,000	 	 	$	200,000,000	 
	 
	 	 	 	 	 	 	 	 





 


 









 





Schedule 3.1(a)




EXISTING LETTERS OF CREDIT




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Expiry	 	 	 
	LOC#	 	Beneficiary	 	Issuing Bank	 	Issue Date	 	Date	 	Amount	 
	SM204266W
	 	ACE American Insurance Co.	 	Wachovia	 	8/28/2003	 	8/5/2007	 	$	15,862,300	 
	SM209193
	 	ACE American Insurance Co.	 	Wachovia	 	7/30/2004	 	7/30/2007	 	 	16,146,715	 
	SM204265W
	 	Lumberman’s Mutual, et al	 	Wachovia	 	8/7/2003	 	8/7/2007	 	 	19,150,000	 
	SM210261W
	 	Lumberman’s Mutual, et al	 	Wachovia	 	10/1/2004	 	9/30/2006	 	 	1,518,264	 
	SM204271W
	 	National Union Fire Ins. Co.	 	Wachovia	 	8/7/2003	 	8/7/2007	 	 	4,157,659	 
	SM204270W
	 	Arizona Dept. of Environmental Quality	 	Wachovia	 	8/8/2003	 	8/7/2007	 	 	867,679	 
	517335
	 	SAFECO Insurance Co.	 	Wachovia	 	8/5/1996	 	7/29/2007	 	 	738,700	 
	519451
	 	Pacific Employers Ins. Co.	 	Wachovia	 	8/26/1996	 	8/22/2007	 	 	455,789	 
	 
	 	 	 	 	 	 	 	 	 	 	 
	 
	TOTAL AMERIGAS LOCs UNDER REVOLVING CREDIT FACILITY	 	 	 	 	 	$	58,897,106	 
	 
	 	 	 	 	 	 	 	 	 	 	 





 


 









 





Schedule 6.2




PARTNERSHIP INTERESTS; SUBSIDIARIES; RESTRICTED SUBSIDIARIES;

OTHER INVESTMENTS




Subsidiaries:


AmeriGas Propane Parts & Service, Inc.



AmeriGas Eagle Propane, Inc. (formerly Columbia Propane Corporation)




AmeriGas Eagle Holdings, Inc. (formerly CP Holdings, Inc.)




AmeriGas Eagle Propane, L.P. (formerly Columbia Propane, L.P.)




AmeriGas Eagle Parts & Service, Inc.



Active Propane of Wisconsin, LLC (formerly AmeriGas, LLC)




AmerE Holdings, Inc.



Investments:




AmeriGas Propane, L.P. holds a note payable by AmeriGas Eagle Propane, L.P. in the amount of
$137,997,000


 


 









 





Schedule 6.3




FOREIGN QUALIFICATIONS




	 	 	 
	AmeriGas Propane, L.P.

	 	All fifty states of the United States and
the District of Columbia, with the exception
of Delaware, the state of organization
	 
	 	 
	AmeriGas Propane, Inc.

	 	All fifty states of the United States and
the District of Columbia, with the exception
of Pennsylvania, the state of organization
	 
	 	 
	Petrolane Incorporated

	 	None
	 
	 	 
	Restricted Subsidiaries
	 	 
	 
	 	 
	AmeriGas Eagle Propane, L.P.

	 	The following states, Alabama, Arizona,
Arkansas, California, Colorado, Connecticut,
Delaware (State of Organization), Florida
(DBA AmeriGas Propane), Georgia, Idaho,
Illinois, Indiana, Iowa, Kentucky,
Louisiana, Maine, Massachusetts, Michigan,
Minnesota, Mississippi, Missouri, Nevada,
New Hampshire, New Mexico, New York, North
Dakota, Ohio, Pennsylvania, Rhode Island,
South Carolina, Tennessee, Texas, Utah,
Vermont, Virginia (DBA Commonwealth
Propane), West Virginia, Wisconsin, Wyoming
	 
	 	 
	AmeriGas Eagle Parts & Service, Inc.

	 	The following states: Alabama, Arizona,
Arkansas, California, Colorado, Connecticut,
Delaware, Florida, Georgia, Idaho, Illinois,
Indiana, Iowa, Kentucky, Louisiana, Maine,
Massachusetts, Michigan, Minnesota,
Mississippi, Missouri, Nevada, New
Hampshire, New Mexico, New York, Ohio,
Pennsylvania (State of Organization) Rhode
Island, South Carolina, Tennessee, Texas,
Vermont, Virginia, Wisconsin, Wyoming
	 
	 	 
	AmeriGas Eagle Holdings, Inc.

	 	Alabama, Arkansas, California, Delaware
(State of Organization), Florida, Illinois,
Maine, Massachusetts, Michigan, Mississippi,
North Dakota, Ohio, Pennsylvania, South
Carolina, Utah, Virginia, West Virginia,
Wisconsin





 


 









 





	 	 	 
	AmeriGas Propane Parts & Service,
Inc.

	 	All fifty states of the United States and
the District of Columbia, with the exception
of Pennsylvania, the state of organization
	 
	 	 
	AmeriGas Eagle Propane, Inc.

	 	Pennsylvania (DBA Commonwealth Propane, Inc.)





 


 









 





Schedule 6.7




PERMITTED INDEBTEDNESS




See attached page.



Restrictive Agreements: None


 


 









 





AmeriGas Propane, LP

Notes Payable and other Debt

For the month ended September 30, 2006




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Name	 	9/30/2007	 	 	9/30/2008	 	 	9/30/2009	 	 	9/30/2010	 	 	9/30/2011	 	 	Total	 
	 
	CAPITAL LEASES
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	ePlus1
	 	 	21,829	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	21,829	 
	ePlus10
	 	 	19,103	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	19,103	 
	ePlus12
	 	 	317	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	317	 
	ePlus13
	 	 	3,755	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	3,755	 
	ePlus14
	 	 	905	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	905	 
	ePlus15
	 	 	413	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	413	 
	ePlus16
	 	 	139	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	139	 
	ePlus17
	 	 	7,756	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	7,756	 
	ePlus18
	 	 	836	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	836	 
	ePlus19
	 	 	6,712	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	6,712	 
	ePlus20
	 	 	3,145	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	3,145	 
	ePlus21
	 	 	2,729	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	2,729	 
	ePlus22
	 	 	1,485	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	1,485	 
	ePlus23
	 	 	4,608	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	4,608	 
	ePlus24
	 	 	4,700	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	4,700	 
	ePlus25
	 	 	15,009	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	15,009	 
	ePlus26
	 	 	20,228	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	20,228	 
	ePlus27
	 	 	1,508	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	1,508	 
	ePlus28
	 	 	1,812	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	1,812	 
	ePlus29
	 	 	6,936	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	6,936	 
	ePlus30
	 	 	2,976	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	2,976	 
	ePlus31
	 	 	13,456	 	 	 	5,862	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	19,318	 
	ePlus32
	 	 	3,542	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	3,542	 
	ePlus33
	 	 	2,567	 	 	 	1,099	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	3,666	 
	ePlus35
	 	 	3,657	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	3,657	 
	ePlus36
	 	 	5,347	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	5,347	 
	ePlus37
	 	 	17,549	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	17,549	 
	ePlus100
	 	 	4,011	 	 	 	4,088	 	 	 	377	 	 	 	 	 	 	 	 	 	 	 	8,476	 
	ePlus101
	 	 	1,230	 	 	 	1,493	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	2,723	 
	HP6
	 	 	21,796	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	21,796	 
	HP7
	 	 	163,056	 	 	 	30,069	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	193,125	 
	HP8
	 	 	2,772	 	 	 	235	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	3,007	 
	HP9
	 	 	47,494	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	47,494	 
	CIT Systems 3
	 	 	3,237	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	3,237	 
	CIT Systems 4
	 	 	25,993	 	 	 	2,369	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	28,362	 
	Lease Corp of America
	 	 	2,496	 	 	 	1,894	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	4,390	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TOTAL
	 	 	445,104	 	 	 	47,109	 	 	 	377	 	 	 	—	 	 	 	—	 	 	 	492,590	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	NOTES PAYABLE
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Acorn Enterprises
	 	 	20,141	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	20,141	 
	Willow Gas
	 	 	164,302	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	164,302	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TOTAL
	 	 	184,443	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	184,443	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	NON COMPETES & OTHER
CONSULTING AGREEMENTS	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Taylor Gas, Inc.
	 	 	8,333	 	 	 	8,333	 	 	 	8,333	 	 	 	 	 	 	 	 	 	 	 	24,999	 
	Dampman Sturges
	 	 	45,000	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	45,000	 
	Noreika Gas
	 	 	24,996	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	24,996	 
	Ollie W. Ash
	 	 	1,736	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	1,736	 
	William R. Zenniker
	 	 	30,000	 	 	 	30,000	 	 	 	30,000	 	 	 	 	 	 	 	 	 	 	 	90,000	 
	Elaine Zenniker
	 	 	18,000	 	 	 	18,000	 	 	 	18,000	 	 	 	 	 	 	 	 	 	 	 	54,000	 
	Gutermuth Gas & Appliance Co
	 	 	53,000	 	 	 	53,000	 	 	 	53,000	 	 	 	 	 	 	 	 	 	 	 	159,000	 
	Rocky Mountain
	 	 	32,800	 	 	 	32,800	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	65,600	 
	Quality Propane
	 	 	10,000	 	 	 	10,000	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	20,000	 
	Choice Propane
	 	 	50,000	 	 	 	50,000	 	 	 	50,000	 	 	 	 	 	 	 	 	 	 	 	150,000	 
	Carroll Independent Fuel
	 	 	100,000	 	 	 	100,000	 	 	 	100,000	 	 	 	100,000	 	 	 	 	 	 	 	400,000	 
	Hankel Trucking Co.
	 	 	30,437	 	 	 	30,437	 	 	 	30,437	 	 	 	30,437	 	 	 	26,375	 	 	 	148,123	 
	Willows Gas
	 	 	40,000	 	 	 	40,000	 	 	 	40,000	 	 	 	40,000	 	 	 	40,000	 	 	 	200,000	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TOTAL
	 	 	444,302	 	 	 	372,570	 	 	 	329,770	 	 	 	170,437	 	 	 	66,375	 	 	 	1,383,454	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TOTAL OTHER DEBT
	 	 	1,073,849	 	 	 	419,679	 	 	 	330,147	 	 	 	170,437	 	 	 	66,375	 	 	 	2,060,487	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





 


 









 





Schedule 6.8(a)




PERMITS AND CONSENTS




None


 


 









 





Schedule 6.9




LITIGATION





	1.	 	Swiger, et al. v. UGI/AmeriGas, Inc. et al. Plaintiffs Samuel and Brenda Swiger and their son
(the “Swigers”) sustained personal injuries and property damage as a result of a fire that
occurred when propane that leaked from an underground line ignited. In July 1998, the Swigers
filed a class action lawsuit against AmeriGas OLP (named incorrectly as “UGI/AmeriGas, Inc.”),
in the Circuit Court of Monongalia County, West Virginia (Civil Action No. 98-C-298), in which
they sought to recover an unspecified amount of compensatory and punitive damages and
attorney’s fees, for themselves and on behalf of persons in West Virginia for whom the
defendants had installed propane gas lines, allegedly resulting from the defendants’ failure
to install underground propane lines at depths required by applicable safety standards. In
2003, AmeriGas settled the individual personal injury and property damage claims of the
Swigers. In 2004, the court granted the plaintiffs’ motion to include customers acquired from
Columbia Propane in August 2001 as additional potential class members, and the plaintiffs
amended their complaint to name additional parties pursuant to such ruling. Subsequently, in
March 2005, AmeriGas filed a cross-claim against Columbia Energy Group, former owner of
Columbia Propane, seeking indemnification for conduct undertaken by Columbia Propane prior to
AmeriGas’s acquisition. Class counsel has indicated that the class is seeking compensatory
damages in excess of $12 million plus punitive damages, civil penalties and attorneys’ fees.
The defendants believe they have good defenses to the claims of the class members and intend
to vigorously defend against the remaining claims in this lawsuit.




 


 









 










Schedule 6.19




ENVIRONMENTAL LIABILITIES




None


 


 









 





Schedule 6.20




COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES, ETC.





	1.	 	In a letter dated July 20, 2006, Kirkland & Ellis LLP, on behalf of its client Emergis Inc.,
notified AmeriGas that Emergis owns U.S. Patent No. 6,044,362 (the “362 Patent”) relating to
electronic invoicing, payment and presentment (“EIPP”), and that the 362 Patent covers a
system for automated EIPP from a variety of user terminals, including those used by retail
customers. The letter did not accuse AmeriGas of patent infringement, but rather invited
AmeriGas to license the allegedly patented process from Emergis, based on a fee for each
transaction processed through EIPP. No formal claim or complaint has been filed.




 


 









 










SCHEDULE 12.2




AGENT’S PAYMENT OFFICE

ADDRESSES FOR NOTICES




BORROWER:




AmeriGas Propane, L.P.

460 North Gulph Road

King of Prussia, Pennsylvania 19406

Attention: Robert W. Krick

                  Treasurer

Telephone: (610) 337-1000 ext. 3141

Facsimile: (610) 992-3259

Electronic Mail: krickr@ugicorp.com




AGENT, ISSUING BANK, SWING LINE BANK:




WACHOVIA
BANK, NATIONAL ASSOCIATION




Credit
Related Notices:


Wachovia Bank, National Association

One Wachovia Center

201 South College Street, CP-8

Charlotte, North Carolina 28288-0680

Attention: Larry Sullivan

Telephone: (704) 715-1794

Telecopy: (704) 383-6647




Operations
Related Notices:


Wachovia Bank, National Association

201 S. College St NC 0680

Charlotte, NC 28211

Attention: Jeff Rainwater

Telephone: (704) 715-2210

Telecopy: (704) 383-0288



 


12-2 - 1









 




BANKS:




WACHOVIA BANK, NATIONAL ASSOCIATION




Credit Related Notices:


Wachovia Bank, National Association

One Wachovia Center

201 South College Street, CP-8

Charlotte, North Carolina 28288-0680

Attention: Larry Sullivan

Telephone: (704) 715-1794

Telecopy: (704) 383-6647




Operations Related Notices:


Wachovia Bank, National Association

201 S.College St NC 0680

Charlotte, NC 28211

Attention: Jeff Rainwater

Telephone: (704) 715-2210

Telecopy: (704) 383-0288




CITIBANK, N.A.




Citibank, N.A.

388 Greenwich Street

21st Floor

New York, New York 10013

Attn: Oscar Cragwell

Telephone: (212) 816-8113

Facsimile: (646) 291-1757



 


12-2 - 2









 





CITIZENS BANK OF PENNSYLVANIA




Primary
Credit


Citizens Bank of Pennsylvania

3025 Chemical Rd., Suite 300

Plymouth Meeting, PA 19462

Attn: Nancy Krewson

Telephone: (610) 941-8442

Facsimile: 610) 941-4136




Loan
Administration/Operations


Citizens Bank of Pennsylvania

525 William Penn Place

Pittsburgh, PA 15219

Attn: Carlyn Simmons

Phone #: (412) 867-4046

Fax#: (412) 867-2619




CREDIT SUISSE, CAYMAN ISLANDS BRANCH




Credit Suisse, Cayman Islands Branch

Eleven Madison Avenue

New York, New York 10010

Attn: Tom Cantello

Telephone: (212) 325-6865

Facsimile: (212) 325-8321




JPMORGAN CHASE BANK, NA




JPMorgan Chase Bank, NA

227 West Monroe Street, Floor 28

Chicago, IL 60606-5055

Attn: Kenneth Fatur

Telephone: (312) 541-3352

Facsimile: (312) 541-3376



 


12-2 - 3









 





MELLON
BANK, N.A.




Mellon Bank, N.A.

500 Ross Street, Room 154-0865

Pittsburgh, PA 15262-0001

Attn: Thomas J. Tarasovich

Telephone: (412) 236-2790

Facsimile: (412) 236-1840




MANUFACTURERS AND TRADERS TRUST COMPANY




Manufacturers and Traders Trust Company

2055 South Queen Street

York, Pennsylvania 17404

Attn: Brian J. Sohocki

Telephone: (724) 743-1831

Facsimile: (724) 743-2802




NATIONAL CITY BANK




National City Bank

20 Stanwix Street IDC 25-191

Pittsburgh, Pennsylvania 15222

Attn: J. Barrett Donovan

Telephone: (412) 644-7740

Facsimile: (412) 471-4883




PNC
BANK, NATIONAL ASSOCIATION




PNC Bank, National Association

1600 Market Street, 22nd Floor

Philadelphia, Pennsylvania 19103

Attn: Frank Pugliese

Telephone: (215) 585-5961

Facsimile: (215) 585-6987

Email: frank.pugliese@pncbank.com



 


12-2 - 4









 





EXHIBIT
A-1




NOTICE OF BORROWING 

(SWING LINE LOANS)




Date:                     , _____




To: Wachovia Bank, National Association, as Agent




Ladies and Gentlemen:



Reference is made to that certain Credit Agreement dated as of November 6, 2006 (as extended,
renewed, amended or restated from time to time, the
“Credit Agreement”) among AmeriGas Propane,
L.P., as borrower, AmeriGas Propane, Inc., as guarantor, Petrolane Incorporated, as guarantor,
certain Banks which are parties thereto, Wachovia Bank, National Association, as Agent, Issuing
Bank and Swing Line Bank and the other parties thereto, the terms defined therein being used herein
as therein defined. The undersigned hereby gives you notice irrevocably, pursuant to Section
2.16 of the Credit Agreement, of the Borrowing specified below:




	 	1.	 	The Business Day of the proposed Borrowing is                     ,
 _____.

	 
	 	2.	 	The aggregate amount of the proposed Borrowing is $                    .

	 
	 	3.	 	The Borrowing is to be comprised of $                     of Swing Line Loans.






The undersigned hereby certifies that the following statements are true on the date hereof, and
will be true on the date of the proposed Borrowing, before and after giving effect thereto and to
the application of the proceeds therefrom:



(a) the representations and warranties of the Obligors contained in Article VI of the
Credit Agreement are true and correct in all material respects as though made on and as of such
date (except to the extent such representations and warranties expressly relate to an earlier time
or date, in which case they shall have been true and correct in all material respects as of such
time or date);



(b) no Default or Event of Default has occurred and is continuing, or would result from such
proposed Borrowing; and


 


A-1-1









 





(c) The proposed Borrowing will not cause the aggregate principal amount of all outstanding
Revolving Loans plus all outstanding Swing Line Loans plus all L/C Obligations to exceed the
combined Revolving Commitments of the Banks.



	 	 	 	 	 	 	 	 	 	 	 
	 	 	AMERIGAS PROPANE, L.P.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	AMERIGAS PROPANE, INC.,

as General Partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 





 


A-1-2









 





EXHIBIT A-2




NOTICE OF BORROWING 

(REVOLVING LOANS/ACQUISITIONS LOANS)




Date:                                         , ______




To: Wachovia Bank, National Association, as Agent




Ladies and Gentlemen:



Reference is made to that certain Credit Agreement dated as of November 6, 2006 (as extended,
renewed, amended or restated from time to time, the
“Credit Agreement”) among AmeriGas Propane,
L.P., as borrower, AmeriGas Propane, Inc., as guarantor, Petrolane Incorporated, as guarantor,
certain Banks which are parties thereto, Wachovia Bank, National Association, as Agent, Issuing
Bank and Swing Line Bank and the other parties thereto, the terms defined therein being used herein
as therein defined. The undersigned hereby gives you notice irrevocably, pursuant to Section
2.3 of the Credit Agreement, of the Borrowing specified below:




1. The Business Day of the proposed Borrowing is                     ,
 _____.




2. The aggregate amount of the proposed Borrowing is $                    .



3. The Borrowing is to be comprised of $                     of [Base Rate] [Eurodollar Rate] Loans which shall
also be [Acquisition] [Revolving) Loans.



4. [The duration of the Interest Period for the Eurodollar Rate Loans included in the
Borrowing shall be
 _____ 
weeks/months].



5. The Borrowing is [not] a Specified Acquisition Loan [and the outstanding principal amount
of Revolving Loans as of the date hereof equal the Revolving Commitments].



The undersigned hereby certifies that the following statements are true on the date hereof,
and will be true on the date of the proposed Borrowing, before and after giving effect thereto and
to the application of the proceeds therefrom:



(a) the representations and warranties of the Obligors contained in Article VI of the
Credit Agreement are true and correct in all material respects as though made on and as of such
date (except to the extent such representations and warranties expressly relate to an earlier time
or date, in which case they shall have been true and correct in all material respects as of such
time or date);



(b) no Default or Event of Default has occurred and is continuing, or would result from such
proposed Borrowing; and


 


A-2-1









 





(c) The proposed Borrowing will not cause the aggregate principal amount of all outstanding
[Acquisition] [Revolving] Loans [plus all outstanding Swing Line Loans plus all L/C Obligations] to
exceed the combined [Acquisition] [Revolving] Commitments of the Banks.



	 	 	 	 	 	 	 	 	 	 	 
	 	 	AMERIGAS PROPANE, L.P.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	AMERIGAS PROPANE, INC.,

as General Partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 





 


A-2-2









 





EXHIBIT B




NOTICE OF CONVERSION/CONTINUATION




Date:                                         , ______




To: Wachovia Bank, National Association, as Agent




Ladies and Gentlemen:



Reference is made to that certain Credit Agreement dated as of November 6, 2006 (as extended,
renewed, amended or restated from time to time, the
“Credit Agreement”) among AmeriGas Propane,
L.P., as borrower, AmeriGas Propane, Inc., as guarantor, Petrolane Incorporated, as guarantor,
certain Banks which are parties thereto, Wachovia Bank, National Association, as Agent, Issuing
Bank and Swing Line Bank and the other parties thereto, the terms defined therein being used herein
as therein defined. The undersigned hereby gives you notice irrevocably, pursuant to Section
2.4 of the Credit Agreement, of the [conversion] [continuation] of the [Acquisition]
[Revolving] Loans specified herein, as follows:




1. The Conversion/Continuation Date is                     ,
 _____.



2. The aggregate amount of the [Acquisition] [Revolving] Loans to be [converted] [continued]
is $                    .



3. The [Acquisition] [Revolving] Loans are to be [converted into] [continued as] [Eurodollar
Rate] [Base Rate] Loans.



4. [If applicable:] The duration of the Interest Period for the [Eurodollar Rate] Loans
included in the [conversion] [continuation] shall be
 _____ 
[weeks] [months].



[Include the following if Loans are being converted into or continued as Eurodollar Rate
Loans:]



[The undersigned hereby certifies that the following statement is true on the date hereof, and
will be true on the proposed Conversion/Continuation Date, before and after giving effect thereto
and to the application of the proceeds therefrom:


 


B-1









 





(a) no Default or Event of Default has occurred and is continuing, or would result from such
proposed [conversion] [continuation).]



	 	 	 	 	 	 	 	 	 	 	 
	 	 	AMERIGAS PROPANE, L.P.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	AMERIGAS PROPANE, INC.,

as General Partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 





 


B-2









 





EXHIBIT C




FORM OF COMMITMENT TERMINATION DATE EXTENSION REQUEST




Date:                                         , _______




	 	 	 
	To:

	 	Wachovia Bank, National Association, as Agent under
	 

	 	the Credit Agreement referred to below
	 
	 	 
	 

	 	The Banks party to the Credit Agreement

referred to below






Ladies and Gentlemen:



This Commitment Termination Date Extension Request is furnished pursuant to that certain
Credit Agreement dated as of November 6, 2006 (as extended, renewed, amended or restated from time
to time, the “Credit Agreement”) among AmeriGas Propane, L.P., as borrower, AmeriGas Propane, Inc.,
as guarantor, Petrolane Incorporated, as guarantor, certain Banks which are parties thereto,
Wachovia Bank, National Association, as Agent, Issuing Bank and Swing Line Bank and the other
parties thereto. Unless otherwise defined herein, terms used herein shall have the meanings
assigned to such terms in the Credit Agreement.



In accordance with Section 2.15 of the Credit Agreement, the undersigned hereby
requests an extension of the Termination Date to                     ,
 _____ 
or if such date is not a Business Day, to the
next succeeding Business Day.



The undersigned hereby certifies that the following statements are true on the date hereof,
and will be true on the Termination Date, before and after giving effect to the proposed extension:



(a) the representations and warranties of the Obligors contained in Article VI of the
Credit Agreement are true and correct in all material respects as though made on and as of such
date (except to the extent such representations and warranties expressly relate to an earlier time
or date, in which case they shall have been true and correct in all material respects as of such
time or date);



(b) no Default or Event of Default has occurred and is continuing, or would result from such
proposed extension; and



Please indicate your consent to such extension by signing the enclosed copy of this letter in
the space provided below and returning it to the undersigned.



	 	 	 	 	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	AMERIGAS PROPANE, L.P.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	AMERIGAS PROPANE, INC.,

as General Partner	 	 





 


C-1









 





	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 






Consented to this ________ day of _______




[INSERT SIGNATURE LINE FOR EACH BANK PARTY TO CREDIT AGREEMENT]





 


C-2











 




EXHIBIT D




AMERIGAS PROPANE, L.P.

COMPLIANCE CERTIFICATE





Financial

Statement Date:                     ,
 _____ 




Reference is made to that certain Credit Agreement dated as of November 6, 2006 (as extended,
renewed, amended or restated from time to time, the
“Credit Agreement”) among AmeriGas Propane,
L.P., as borrower, AmeriGas Propane, Inc., as guarantor, Petrolane Incorporated, as guarantor,
certain Banks which are parties thereto, Wachovia Bank, National Association, as Agent, Issuing
Bank and Swing Line Bank and the other parties thereto. Unless otherwise defined herein,
capitalized terms used herein have the respective meanings assigned to them in the Credit
Agreement.



The undersigned Responsible Officer of AmeriGas Propane, L.P. (the “Borrower”), hereby
certifies as of the date hereof that he/she is the                      of the Borrower, and
that, as such, he/she is authorized to execute and deliver this Certificate to the Banks
and the Agent on the behalf of the Borrower, and that:



[Use the following paragraph if this Certificate is delivered in connection with the financial
statements required by subsection
[7.1(b)(ii)] of the Credit Agreement.]



1. Attached as Schedule 1 hereto are (a) a true and correct copy of the audited
consolidated and consolidating balance sheets of the Borrower and its Subsidiaries [(except, as to consolidating
balance sheets only, for inactive Subsidiaries)] as at the end of the fiscal year ended                     ,
          
and (b)
the related consolidated (and, as to statements of income, consolidating except for inactive Subsidiaries) statements of
income, partner’s capital and cash flow for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, and (i) in the case of such
consolidated financial statements accompanied by the opinion of [PricewaterhouseCoopers LLP] or
another nationally-recognized certified independent public accounting firm (the “Independent
Auditor”) which report shall not be qualified with respect to scope limitations imposed by the
Borrower or any of its Restricted Subsidiaries not in accordance with GAAP and states that such
consolidated financial statements fairly present, in all material respects, the financial position
of the Borrower and its Subsidiaries as at the dates indicated and the results of their operations
and cash flows for the periods indicated in conformity with GAAP, and that the audit by such
Independent Auditor in connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards in effect in the United States, and in the
case of such consolidated and consolidating financial statements, certified by the principal
financial officer of the General Partner as presenting fairly, in all material respects, the
information contained therein (except, in the case of such consolidating financial statements, for
the absence of footnotes), in accordance with GAAP.



-or-




[Use the following paragraph if this Certificate is delivered in connection with the financial
statements required by subsection [7.1 (b)(i)] of the Credit Agreement.]



1. Attached as Schedule 1 hereto are (a) a true and correct copy of the unaudited
consolidated and consolidating balance sheets of the Borrower and its Subsidiaries [(except, as to consolidating
balance sheets only, for inactive Subsidiaries)] as at the end of the fiscal quarter ended                                         ,                     , and (b) the related
unaudited consolidated (and, as to statements of income, consolidating, except for inactive
Subsidiaries) statements of income, partners’ capital and cash flows for the period commencing on
the first day and ending on the last day of such quarter [and for the period from the beginning of
the current fiscal year to the end of such quarterly period], [setting forth in each ease in
comparative form the figures for the previous year,] and certified by the principal


 


D-1









 





financial officer of the General Partner as presenting fairly, in all material respects, the
information contained therein (except for the absence of footnotes and subject to changes
resulting from normal year-end adjustments), in accordance with GAAP applied on a basis consistent
with prior fiscal periods (other than periods ending prior to the Restatement Effective Date)
except for inconsistencies resulting from changes in accounting principles and methods agreed to
by the Borrower’s independent accountants.



2. The undersigned has reviewed and is familiar with the terms of the Credit Agreement and the
other Loan Documents and has made, or has caused to be made under his/her supervision, a review in
reasonable detail of the transactions and condition of the Borrower and its Subsidiaries during the
accounting period covered by the attached financial statements.



[select one:]




[3. To the best of the undersigned’s knowledge, as of the date hereof, no Default or Event of
Default has occurred and is continuing.]



-or-




[3. The following covenants or conditions have not been performed or observed and the
following is a list of each such Default and its nature and status:]



4. The following financial covenant analyses and other information set forth on Schedule 2 attached
hereto are true and accurate on and as of the date of this Certificate.




[Note: Include adjustments if any Unrestricted Subsidiaries exist.]



-or-




[Use the following paragraph if this Certificate is delivered in connection with each incurrence
of Indebtedness, immediately after giving effect thereto, pursuant to subsection 8.1(f) of the
Credit Agreement.]



1. Attached as Schedule 3 hereto are the true and correct financial covenant analyses
regarding (i) the ratio of Consolidated Cash Flow to Consolidated Pro Forma Debt Service and (ii)
the ratio of Consolidated Cash Flow to Average Consolidated Pro Forma Debt Service pursuant to
Section 8.1(f) of the Credit Agreement.



[select one:]




[2. The covenants set forth in Section 8.1(f) of the Credit Agreement have been performed or
observed.]



-or-




[2. The covenants set forth in Section 8.1(f) of the Credit Agreement have not
been performed or observed and the following is a list of the Default and its nature and
status:]



-or-




[Use the following paragraph if this Certificate is delivered in connection with each merger or
consolidation pursuant to subsections 8.8(a)(ii) and/or (iii) of the Credit Agreement immediately
after giving effect thereto.]



1. Attached as Schedule 4 hereto are the true and correct financial covenant analysis
pursuant to Section [8.8(a)(ii)] [8.8(a)(iii)] of the Credit Agreement.


 


D-2









 





[select one:]




[2. The covenant set forth in Section [8.8(a)(ii)] [8.8(a)(iii)] of the Credit
Agreement has been performed or observed.]



-or-




[2. The covenant set forth in Section [8.8(a)(ii)] [8.8(a)(iii)] of the Credit
Agreement has not been performed or observed and the following is a list of the Default and
its nature and status:]




IN WITNESS WHEREOF, the undersigned has executed this Certificate as of _________, _________.



	 	 	 	 	 	 	 	 	 
	 	 	AMERIGAS PROPANE, L.P.
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	AMERIGAS PROPANE, INC., 
as
General Partner
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 	 	 





 


D-3









 





[SAMPLE]




For the fiscal quarter/year ended

                                        ,                     

 (“Computation
Date”)




SCHEDULE 2

to the Compliance Certificate




	 	 	 	 	 
	 	 	Actual	 	Required/Permitted
	 
	 	 	 	 
	1. Available Cash:
	 	 	 	 
	 
	 	 	 	 
	A. All cash of Borrower and
Restricted Subsidiaries on hand at
Computation Date
	 	$                    	 	 
	 
	 	 	 	 
	B. All additional cash of Borrower
and Restricted Subsidiaries on
hand on date of determination of
Available Cash with respect to
quarter resulting from borrowings
subsequent to Computation Date
	 	$                    	 	 
	 
	 	 	 	 
	C. Sum of A and B
	 	$                    	 	 
	 
	 	 	 	 
	D. Amount determined by General
Partner pursuant to clause (b) of
definition of Available Cash
	 	$                    	 	 
	 
	 	 	 	 
	E. Reserves required by definition of
Available Cash as itemized on
attached schedule
	 	$                    	 	 
	 
	 	 	 	 
	F. Sum of D and E
	 	$                    	 	 
	 
	 	 	 	 
	G. Available Cash = C minus F
	 	$                    	 	 
	 
	 	 	 	 
	2. Consolidated Cash Flow
	 	 	 	 
	 
	 	 	 	 
	A. Consolidated Net Income
	 	$                    	 	 
	 
	 	 	 	 
	B. Consolidated Non-Cash Charges
	 	$                    	 	 
	 
	 	 	 	 
	C. Consolidated Interest Expense
	 	$                    	 	 
	 
	 	 	 	 
	D. Consolidated Income Tax Expense
	 	$                    	 	 
	 
	 	 	 	 
	E. Sum of A, B, C and D =
	 	$                    	 	 
	 
	 	 	 	 
	F. Any non-cash items included in D
	 	$                    	 	 
	 
	 	 	 	 
	G. Consolidated Cash Flow = E minus F
	 	 	 	 
	 
	 	 	 	 
	3. Consolidated Net Income:
	 	 	 	 
	 
	 	 	 	 
	A. Net income of the Borrower and
	 	$                    	 	Consolidated Net Income shall





 


D-4









 





	 	 	 	 	 
	 	 	Actual	 	Required/Permitted
	 
	the Restricted Subsidiaries,
on a consolidated basis
	 	 	 	include the amount of dividends or distributions actually paid to the Borrower or any Restricted Subsidiary
	 
	B. Net after-tax extraordinary gains
or losses
	 	$                    	 	 
	 
	 	 	 	 
	C. Net after-tax gains or losses
attributable to Asset Sales
	 	$                    	 	 
	 
	 	 	 	 
	D. Net income or loss of any Person
which is not a Restricted
Subsidiary and which is accounted
for by the equity method of
accounting
	 	$                    	 	 
	 
	 	 	 	 
	E. Net income of any Restricted
Subsidiary to the extent that
dividends or distributions of such
net income are not at the date of
determination permitted by the
terms of its charter or any
agreement, instrument, judgment,
decree, order, statute, rule or
other regulation
	 	$                    	 	 
	 
	 	 	 	 
	F. Cumulative effect of any changes
in GAAP
	 	$                    	 	 
	 
	 	 	 	 
	G. Sum of B, C, D, E and F
	 	$                    	 	 
	 
	 	 	 	 
	H. Consolidated Net Income = A minus G
	 	$                    	 	 
	 
	 	 	 	 
	4. EBIT:
	 	 	 	 
	 
	 	 	 	 
	A. Consolidated Net Income U.
(without duplication, not
including losses resulting from
the extinguishment of debt and
extraordinary gains or losses,
other than losses arising from
reserves established in connection
with the Tax Indemnity Provisions
(as defined in the National
Propane Purchase Agreement)
	 	$                    	 	 
	 
	 	 	 	 
	B. Consolidated Interest Expense
	 	$                    	 	 
	 
	 	 	 	 
	C. Consolidated Income Tax Expense
	 	$                    	 	 





 


D-5









 





	 	 	 	 	 
	 	 	Actual	 	Required/Permitted
	 
	D. EBIT = Sum of A, B and C
	 	$                    	 	 
	 
	 	 	 	 
	5. EBITDA:
	 	 	 	 
	 
	 	 	 	 
	A. EBIT
	 	$                    	 	 
	 
	 	 	 	 
	B. Borrower’s and Restricted
Subsidiaries’ depreciation of the
following items, in each case as
taken into account in calculating
Consolidated Net Income
	 	 	 	 
	 
	 	 	 	 
	i. property
	 	$                    	 	 
	 
	 	 	 	 
	ii. plant
	 	$                    	 	 
	 
	 	 	 	 
	iii. equipment
	 	$                    	 	 
	 
	 	 	 	 
	iv. intangible assets
	 	$                    	 	 
	 
	 	 	 	 
	C. EBITDA = Sum of A, B(i), B(ii),
B(iii) and B(iv)
	 	$                    	 	 
	 
	 	 	 	 
	6. Indebtedness:
	 	 	 	 
	 
	 	 	 	 
	A. All indebtedness for borrowed money
	 	$                    	 	 
	 
	 	 	 	 
	B. All obligations issued, undertaken
or assumed as the deferred
purchase price of property or
services (other than trade
payables and accrued expenses
arising in the ordinary course of
business on ordinary terms)
	 	$                    	 	 
	 
	 	 	 	 
	C. All non-contingent reimbursement
or payment obligations with
respect to Surety Instruments
	 	$                    	 	 
	 
	 	 	 	 
	D. All obligations evidenced by
notes, bonds, debentures or
similar instruments, including
obligations so evidenced incurred
in connection with the acquisition
of property, assets or businesses
	 	$                    	 	 





 


D-6









 





	 	 	 	 	 
	 	 	Actual	 	Required/Permitted
	 
	 	 	 	 
	E. All indebtedness created or
arising under any conditional sale
or other title retention
agreement, or incurred as
financing, in either case with
respect to property acquired by
the Person (even though the rights
and remedies of the seller or bank
under such agreement in the event
of default are limited to
repossession or sale of such
property);
	 	$                    	 	 
	 
	 	 	 	 
	F.  All Capitalized Lease Liabilities
	 	$                    	 	 
	 
	 	 	 	 
	G. All indebtedness referred to in A
through F above secured by (or for
which the holder of such
Indebtedness has an existing
right, contingent or otherwise, to
be secured by) any Lien upon or in
property (including accounts and
contracts rights) owned by such
Person, even though such Person
has not assumed or become liable
for the payment of such
Indebtedness
	 	 	 	 
	 
	 	 	 	 
	H. All Redeemable Capital Stock of
such Person valued at the greater
of its voluntary or involuntary
maximum fixed repurchase price
plus accrued dividends
	 	$                    	 	 
	 
	 	 	 	 
	I.  Any Preferred Stock of any
Subsidiary of such Person valued
at the sum of the liquidation
preference thereof or any
mandatory redemption payment
obligations in respect thereof
plus, in either case, accrued
dividends thereon
	 	$                    	 	 
	 
	 	 	 	 
	J.  All Guaranty Obligations in
respect of indebtedness or
obligations of others of the kinds
referred to in A through I above
	 	$                    	 	 
	 
	 	 	 	 
	K. Indebtedness = the sum of A, B, C,
D, E, F, G, H, I and J, without
duplication of any indebtedness
	 	$                    	 	 





 


D-7









 





	 	 	 	 	 
	 	 	Actual	 	Required/Permitted
	 
	 	 	 	 
	7. Total Debt:
	 	 	 	 
	 
	 	 	 	 
	A. Aggregate principal amount of all
Indebtedness of the Borrower and
the Restricted Subsidiaries at the
time outstanding
	 	$                    	 	 
	 
	 	 	 	 
	B. Subordinated indebtedness of a
Restricted Subsidiary owed to the
Borrower or to a Wholly-Owned
Restricted Subsidiary
	 	$                    	 	 
	 
	 	 	 	 
	C. Subordinated indebtedness of the
Borrower owed to a Wholly-Owned
Restricted Subsidiary
	 	$                    	 	 
	 
	 	 	 	 
	D. B plus C
	 	$                    	 	 
	 
	 	 	 	 
	E. Total Debt = A minus D
	 	$                    	 	 
	 
	 	 	 	 
	8. Section 7.9(e) Distributions from the Borrower to the
Public Partnership:
	 	 	 	 
	 
	 	 	 	 
	A. The amount of distributions
received by the Public Partnership
from the Borrower and made with
the proceeds of Indebtedness
incurred pursuant to Section
8.1(1) not used to make payments,
purchases, prepayments,
redemptions, defeasances or other
repayments (scheduled or
unscheduled) of Indebtedness of
the Public Partnership (and to pay
all fees, premiums, make whole
amounts and transaction expenses
incurred in connection therewith)
	 	$                    	 	 
	 
	 	 	 	 
	9. Section 8.1 Indebtedness:
	 	 	 	 
	 
	 	 	 	 
	A. $75,000,000 plus the amount of
aggregate net cash proceeds
received by the Borrower as
capital contributions or as
consideration for the issuance by
the Borrower of more partnership
interests for purpose of financing
expenditures referred to in Section 8.1(b)
	 	$                    	 	The amount of amount of assumed Indebtedness shall not exceed the purchase price of the additions to Assets and any extensions, renewals, refundings or refinancings of any Indebtedness shall not exceed the principal amount thereof





 


D-8









 





	 	 	 	 	 
	 	 	Actual	 	Required/Permitted
	 
	 	 	 	 
	B. Aggregate amount of
Indebtedness incurred
and outstanding under
Section 8.1(b)
	 	$                    	 	Shall not exceed A
	 
	 	 	 	 
	C. Aggregate
Indebtedness owing to
General Partner or an
Affiliate of General
Partner referred to
in Section 8.1(d)
	 	$                    	 	Not to exceed $50,000,000
	 
	 	 	 	 
	D. Aggregate amount of
Capitalized Lease
Liabilities under
Section 8.1(k)
	 	$                    	 	Not to exceed $10,000,000 at any time
	 
	 	 	 	 
	E. Aggregate amount of
Indebtedness incurred
and outstanding under
Section 8.1(1)
	 	$                    	 	Not to exceed $105,000,000 at any time
	 
	 	 	 	 
	F. Aggregate amount of
Indebtedness of AEPLP
or any of its
Subsidiaries pursuant
to the last paragraph
in Section 8.1
	 	$                    	 	Cannot incur Indebtedness other than: (i) Indebtedness of the type described in Section 8.1(c); (ii) the Indebtedness of AELP on the closing date of the Columbia Purchase Acquisition; and (iii) Indebtedness evidenced by the $137,997,000 Intercompany Note
	 
	 	 	 	 
	10. Section 8.2 Minimum Interest Coverage:
	 	 	 	 
	 
	 	 	 	 
	A. EBITDA, as at the end
of any fiscal quarter
for the four full
fiscal quarters most
recently ended
	 	$                    	 	 
	 
	 	 	 	 
	B. Consolidated Interest
Expense for four
fiscal quarters
ending on Computation
Date
	 	$                    	 	 
	 
	 	 	 	 
	C. Ratio of A to B
	 	                    	 	Must not be less than 3.00 to 1.0
	 
	 	 	 	 
	11. Section 8.4(c) Investments:
	 	 	 	 
	 
	 	 	 	 
	A. 10% of Total Assets
	 	$                    	 	 
	 
	 	 	 	 
	B. Investments by the
Borrower and its
Restricted
Subsidiaries up to
$25,000,000 per
fiscal year pursuant
to Section 8.4(c)
	 	$                    	 	Such Investments shall not be made in Capital Stock or Indebtedness of AmeriGas Partners, L.P. or any of its Subsidiaries (other than the Borrower and its Restricted Subsidiaries) and shall not
include the principal amount of the Intercompany Note
	 
	 	 	 	





 


D-9









 





	 	 	 	 	 
	 	 	Actual	 	Required/Permitted
	 
	 	 	 	 
	C. Outstanding Investments
pursuant to Section 8.4(c) and (h) not  permitted by Annual Limit
	 	$                    	 	Shall not exceed A
	 
	 	 	 	 
	12. Section 8.4(d) Investments:
	 	 	 	 
	 
	 	 	 	 
	A. Investments arising
out of loans and
advances to
employees incurred
in the ordinary
course of business
	 	$                    	 	Shall not exceed $1,000,000 at any time outstanding
	 
	 	 	 	 
	B. Investments arising
out of extensions
of trade credit or
advances to third
parties in the
ordinary course of
business
	 	$                    	 	 
	 
	 	 	 	 
	C. Investments
acquired by reason
of the exercise of
customary
creditors’ rights
upon default or
pursuant to the
bankruptcy,
insolvency or
reorganization of a
debtor
	 	$                    	 	 
	 
	 	 	 	 
	13. Section 8.5 Restricted Payments:
	 	 	 	 
	 
	 	 	 	 
	A. Available Cash for
quarter immediately
preceding quarter
ended on
Computation Date
	 	$                    	 	 
	 
	 	 	 	 
	B. Restricted Payments
during quarter
ended on
Computation Date
	 	$                    	 	Shall not exceed A
	 
	 	 	 	 
	14. Section 8.8(c) Asset Sales:
	 	 	 	 
	 
	 	 	 	 
	A. Net Proceeds of all
Asset Sales during
fiscal year 
	 	$                    	 	 
	 
	 	 	 	 
	B. Net Proceeds of
Asset Sales during
fiscal year applied
in accordance with
subdivision (ii)(B) of
Section 8.8(c)
	 	$                    	 	 
	 
	 	 	 	 
	C. A minus B 
	 	$                    	 	Shall not exceed $10,000,000 pursuant to Section 8.8(c)(ii)(A)
	 
	 	 	 	 
	15. Section 8.13 Receivables:
	 	 	 	 
	 
	 	 	 	 
	A. Receivables sold in
ordinary course of
business which
remain unpaid
	 	$                    	 	Shall not exceed $500,000





 


D-10









 





	 	 	 	 	 
	 	 	Actual	 	Required/Permitted
	 
	 	 	 	 
	16. Section 8.14 Leverage Ratio:
	 	 	 	 
	 
	 	 	 	 
	A. Total Debt
	 	$                    	 	 
	 
	 	 	 	 
	B. EBITDA choose one
(but must be the
same choice as made
with respect to 17.
below for any given
reporting period): (i) as at the end
of any fiscal
quarter for the
four full fiscal
quarters most
recently ended or
(ii) as at the end
of any fiscal
quarter for the
eight full fiscal
quarters most
recently ended (in
which case EBITDA
shall be divided by
two)
	 	$                    	 	 
	 
	 	 	 	 
	C. Ratio of A to B
	 	                    	 	Shall not exceed 4.00 to 1.0 at any time
	 
	 	 	 	 
	17. Section 8.15 Minimum EBITDA:
	 	 	 	 
	 
	 	 	 	 
	EBITDA choose one (but must be the
same choice as made with respect to 16.B.
above for any given reporting period): (i)
as at the end of any fiscal quarter for the
four full fiscal quarters most recently
ended or (ii) as at the end of any fiscal
quarter for the eight full fiscal quarters most
recently ended (in which case EBITDA shall
be divided by two)
	 	 	 	Shall not be less than $200,000,000
	 
	 	 	 	 
	18. Section 8.15 Acquisitions:
	 	 	 	 
	 
	 	 	 	 
	A. Aggregate net book
value of all PP&E
Assets acquired by
AEPLP or any of its
Subsidiaries in any
fiscal year
pursuant to
Acquisitions (other
than PP&E Assets
acquired with the
proceeds of any
prior or concurrent
Capped Investments
or PP&E Transfers)
(prior to and after
giving effect to
such Acquisition)
	 	$                    	 	Shall not exceed the sum of (i) 33 1/3% of the aggregate net book value of the PP&E Assets of the Borrower and its Restricted Subsidiaries and (ii) $70,000,000





 


D-11









 





	 	 	 	 	 
	 	 	Actual	 	Required/Permitted
	 
	 	 	 	 
	B. Aggregate net book value of
the PP&E Assets acquired by
AEPLP and its Subsidiaries in
connection with all
Acquisitions in any fiscal
year pursuant to Section 8.16
	 	$                    	 	 
	 
	 	 	 	 
	C. Sum of A plus B
	 	$                    	 	Together with any Capped Investments and any PP&E Transfers made in such fiscal year pursuant to
 Section 8.18(a) and Section 8.18(b)(iii), may not exceed (i) $35,000,000 plus (ii) the amount of any Carryover Threshold
	 
	 	 	 	 
	19.
Section 8.17(a) AEPLP Investments:
	 	 	 	 
	 
	 	 	 	 
	A. The aggregate net book value
(as determined in good faith
by the General Partner) of all
Investments in AEPLP or its
Subsidiaries made pursuant to
Sections 8.4(b) and (c)
	 	$                    	 	 
	 
	 	 	 	 
	B. The aggregate of any AEPLP
Acquisitions and PP&E
Transfers made in any fiscal
year pursuant to Section 8.16
and Section 8.18(b)(iii)
	 	$                    	 	 
	 
	 	 	 	 
	C. Sum of A plus B
	 	$                    	 	Shall not exceed the PP&E Acquisition/Investment/Transfer Limit for such fiscal year
	 
	 	 	 	 
	20. Section 8.18(b)(iii) Asset Transfers:
	 	 	 	 
	 
	 	 	 	 
	A. The aggregate net book value
of all PP&E Assets (together
with associated working
capital) that are Transferred
by the Borrower or a Non-AEPLP
Restricted Subsidiary to AEPLP
or any of its Subsidiaries
	 	$                    	 	 
	 
	 	 	 	 
	B. The aggregate net book value
of any AEPLP Acquisitions and
Capped Investments made in any
fiscal year pursuant to
Section 8.16 and Section
8.18(a)
	 	$                    	 	 
	 
	 	 	 	 
	C. Sum of A plus B
	 	$                    	 	Shall not exceed the PP&E Acquisition/Investment/Transfer





 


D-12









 





	 	 	 	 	 
	 	 	Actual	 	Required/Permitted
	 
	 	 	 	 
	 
	 	 	 	Limit for such fiscal year; provided, that the aggregate net book value of all PP&E Assets of
AEPLP and its Subsidiaries shall not any time exceed the sum of (i) 33 1/3% of the aggregate net book value of all PP&E Assets of the
Borrower and its Restricted Subsidiaries and (ii) $70,000,000
	 
	 	 	 	 
	21. Section 8.18(d) Trade Accounts Payable:
	 	 	 	 
	 
	 	 	 	 
	A. Aggregate amount of trade accounts payable (including
but not limited to amounts
owed under equipment leases)
of AEPLP and its Subsidiaries
	 	$                    	 	Not to exceed  $15,000,000 at any time
	 
	 	 	 	 
	22. Pricing Tier:
	 	 	 	 
	 
	 	 	 	 
	A. Indebtedness for borrowed
money or the deferred
purchase price of property
or services, other than
indebtedness for trade
payables and non-recourse
indebtedness which is not
required by GAAP to be
classified as a liability
	 	$                    	 	 
	 
	 	 	 	 
	B. Capitalized Lease Liabilities
	 	$                    	 	 
	 
	 	 	 	 
	C. Contingent Obligations
	 	$                    	 	 
	 
	 	 	 	 
	D. Funded Debt = sum of 1, 2 and 3
	 	$                    	 	 
	 
	 	 	 	 
	E. EBITDA
for four fiscal quarters ending on
Computation Date
	 	$                    	 	 
	 
	 	 	 	 
	F. EBITDA
for Acquisitions, as if on first day of four
quarter period
	 	$                    	 	 
	 
	 	 	 	 
	G. Actual Acquisition Expense
	 	$                    	 	 
	 
	 	 	 	 
	H. Pro Forma Acquisition Expense
	 	$                    	 	 
	 
	 	 	 	 
	I. Savings Factor = 50% of (G-H)
	 	$                    	 	 
	 
	 	 	 	 
	J. 10% of EBITDA
	 	$                    	 	 
	 
	 	 	 	 
	K. Lesser of I or J
	 	$                    	 	 
	 
	 	 	 	 
	L. Sum of E, F, and K
	 	$                    	 	 





 


D-13









 





	 	 	 	 	 
	 	 	Actual	 	Required/Permitted
	 
	 	 	 	 
	M. Pricing Tier based on E plus F
	 	$                    	 	 
	 
	 	 	 	 
	N. Pricing Tier Based on L
	 	$                    	 	 
	 
	 	 	 	 
	O. Higher Pricing Tier of M or N
	 	$                    	 	 





 


D-14









 





SCHEDULE 3

to the Compliance Certificate




	 	 	 	 	 
	For each incurrence of Indebtedness
pursuant to Section 8.1(f)
immediately after giving
effect thereto
	 	 	 	 
	 
	 	 	 	 
	(i) ratio of
Consolidated Cash Flow
to Consolidated Pro
Forma Debt to
Consolidated Pro Forma
Debt Service
	 	                    	 	Must equal or be greater than 2.50 to 1.0
	 
	 	 	 	 
	(ii) ratio of
Consolidated Cash Flow
to Average Consolidated
Pro Forma Debt Service
	 	                    	 	Must be equal to or greater than 1.25 to 1.0





 


D-15









 





SCHEDULE 4
 to
the Compliance Certificate




For each merger or consolidation pursuant to Section 8.8(a)(ii) or (iii):




	 	 	 	 	 
	A. Consolidated Net
Worth of surviving
entity immediately
after giving effect
to such transactions
	 	$                    	 	 
	 
	 	 	 	 
	B. Consolidated Net
Worth of the
Borrower immediately
prior to the
effectiveness of
such transaction
	 	$                    	 	A may not be less than B
	 
	 	 	 	 
	C. Amount of
Indebtedness which
could be incurred in
compliance with
clauses (i) and (ii)
of Section 8.1(f) 
immediately after
giving effect to
such transaction
	 	$                    	 	Must be at least $1





 


D-16









 





EXHIBIT E




FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT




ASSIGNMENT AND ACCEPTANCE




This Assignment and Acceptance (this “Assignment and Acceptance”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor]
(the “Assignor”) and [Insert name of
Assignee] (the “Assignee”). Capitalized terms used but
not defined herein shall have the meanings given to them in the Credit Agreement identified
below (the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the
Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are
hereby agreed to and incorporated herein by reference and made a part of this Assignment and
Acceptance as if set forth herein in full.



For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject
to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Agent as contemplated below (i) all of the Assignor’s rights and
obligations as a Bank under the Credit Agreement and any other documents or instruments
delivered pursuant thereto to the extent related to the amount and percentage interest
identified below of all of such outstanding rights and obligations of the Assignor under the
respective facilities identified below (including, without limitation, Letters of Credit,
Guarantees and Swing Line Loans included in such facilities) and (ii) to the extent permitted
to be assigned under applicable law, all claims, suits, causes of action and any other right of
the Assignor (in its capacity as a Bank) against any Person, whether known or unknown, arising
under or in connection with the Credit Agreement, any other documents or instruments delivered
pursuant thereto or the loan transactions governed thereby or in any way based on or related to
any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice
claims, statutory claims and all other claims at law or in equity related to the rights and
obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and
assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as, the
“Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except
as expressly provided in this Assignment and Acceptance, without representation or warranty by
the Assignor.



	 	 	 
	1. Assignor:

	 	                                                            
	 
	 	 
	2. Assignee:

	 	                                                             [and is an Affiliate of [identify Bank]
1]
	 
	 	 
	3. Borrower:

	 	AmeriGas Propane, L.P.





 





	 	 	 
	1	 	Select if applicable.




 


E-1









 




	 	 	 
	4. Agent:

	 	Wachovia Bank, National Association, as the administrative agent under the Credit Agreement
	 
	 	 
	5. Credit Agreement:

	 	Credit Agreement dated as of November 6, 2006 (as
extended, renewed, amended or restated from time to time, the
“Credit Agreement”)
among AmeriGas Propane, L.P., as borrower, AmeriGas Propane, Inc., as guarantor, Petrolane
Incorporated, as guarantor, certain Banks which are parties thereto, Wachovia Bank, National Association, as
Agent, Issuing Bank and Swing Line Bank and the other parties thereto.
	 
	 	 
	6. Assigned Interest:
	 	 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	Aggregate Amount of	 	 	 	 	 	 	 
	 	 	 	Commitment for all	 	 	Amount of Commitment	 	 	Percentage Assigned of	 
	Facility Assigned	 	 	Banks*	 	 	Assigned*	 	 	Commitment2	 
	 	3	 	$	 	 	 	$	 	 	 	 	 	%
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	$	 	 	 	$	 	 	 	 	 	%
	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	$	 	 	 	$	 	 	 	 	 	%
	 	 	 	 	 	 	 	 	 	 	 






	 	 	 
	[7. Trade Date:

	 	                                                            ]4






Effective Date:                                         , 20_____ [TO BE INSERTED BY THE AGENT AND
WHICH SHALL BE THE EFFECT WE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]



The terms set forth in this Assignment and Acceptance are hereby agreed to:



	 	 	 	 	 
	 	 	ASSIGNOR
	 
	 	 	 	 
	 	 	[NAME OF ASSIGNOR]
	 
	 	 	 	 
	 

	 	By: 	 	 
	

	 	 	 
	 

	 	 	Name: 	 
	 

	 	 	Title: 	 






 






	 	 	 
	2	 	Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of
all Banks thereunder.

	 
	3	 	Fill in the appropriate terminology for the types of facilities under the Credit
Agreement that are being assigned under this Assignment (e.g. “Revolving Commitment”, “Acquisition Commitment”, etc.).

	 
	4	 	To be completed if the Assignor and the Assignee intend that the minimum
assignment amount is to be determined as of the Trade Date.




 


E-2









 





	 	 	 	 	 
	 	 	ASSIGNEE
	 
	 	 	 	 
	 	 	[NAME OF ASSIGNEE]
	 
	 	 	 	 
	 

	 	By: 	 	 
	 

	 	 	 
	 

	 	 	Name: 	 
	 

	 	 	Title: 	 






	 	 	 	 	 
	[Consented to and] Accepted:	 	 
	 
	 	 	 	 
	WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent	 	 
	 
	 	 	 	 
	By: 
	 	 	 	 
	 

	 

	 	 
	 

	Name: 	 	 	 
	 

	Title: 	 	 	 






	 	 	 	 	 
	[Consented to:]	 	 
	 
	 	 	 	 
	AMERIGAS PROPANE, L.P.	 	 
	 
	 	 	 	 
	By: AMERIGAS PROPANE, INC., as
General Partner

	 	 
	 
	 	 	 	 
	By: 
	 	 	 	 
	 

	 

	 	 
	 

	Name: 	 	 	 
	 

	Title: 	 	 	 






	 	 	 	 	 
	[Consented to:]	 	 
	 
	 	 	 	 
	WACHOVIA BANK, NATIONAL ASSOCIATION, as Issuing Bank	 	 
	 
	 	 	 	 
	By: 
	 	 	 	 
	 

	 

	 	 
	 

	Name: 	 	 	 
	 

	Title: 	 	 	 





 


E-3









 





ANNEX 1 TO ASSIGNMENT AND ACCEPTANCE




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ACCEPTANCE





1. Representations and Warranties.



1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the legal
and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has
taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate
the transactions contemplated hereby, and (b) assumes no responsibility with respect to (i)
any statements, warranties or representations made in or in
 connection with the Credit Agreement
or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated
in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under
any Loan Document.



1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver this
Assignment and Acceptance and to consummate the transactions contemplated hereby and to become a Bank
under the Credit Agreement, (ii) it meets all requirements of an Eligible Assignee under the
Credit Agreement (subject to receipt of such consents as may be required under the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of
the Credit Agreement as a Bank thereunder and, to the extent of the Assigned Interest, shall have
the obligations of a Bank thereunder, (iv) it has received a copy of the Credit Agreement,
together with copies of the most recent financial statements delivered pursuant to Section 7.1
thereof, as applicable, and such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment and Acceptance and to purchase
the Assigned Interest on the basis of which it has made such analysis and decision
independently and without reliance on the Agent or any other Bank, and (v) if it is a Foreign Bank, attached
hereto is any documentation required to be delivered by it pursuant to the terms of the Credit
Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will,
independently and without reliance on the Agent, the Assignor or any other Bank, and based on
such documents and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will
perform in accordance with their terms all of the obligations which by the terms of the Loan
Documents are required to be performed by it as a Bank.



2. Payments. From and after the Effective Date, the Agent shall make all payments
in respect of the Assigned interest (including payments of principal, interest, fees and other
amounts) to the Assignee whether such amounts have accrued prior to or on or after the
Effective Date. The Assignor and the Assignee shall make all appropriate adjustments in payments by the


 


E-4









 





Agent for periods prior to the Effective Date or with respect to the making of this assignment
directly between themselves.



3. General Provisions. This Assignment and Acceptance shall be binding upon, and inure to
the benefit of, the parties hereto and their respective successors and assigns. This Assignment and
Acceptance may be executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this Assignment and
Acceptance by telecopy shall be effective as delivery of a manually executed counterpart of this
Assignment and Acceptance. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the law of the State of New York.




 


E-5











 




EXHIBIT F-1

FORM OF PROMISSORY NOTE (ACQUISITION LOANS)




PROMISSORY NOTE

(ACQUISITION LOANS)




			
	 	 	 
	$                     
	 	November 6, 2006
	 
	 	New York, New York






FOR VALUE RECEIVED, AmeriGas Propane, L.P. (the “Borrower”), hereby promises to pay to                                         
 (the “Bank”), for the account of its respective Applicable Lending Office provided for by the Credit
Agreement referred to below, at the Agent’s Payment Office, the principal sum of                      (or such lesser
amount as shall equal the aggregate unpaid principal amount of the Acquisition Loans made by the
Bank to the Borrower under the Credit Agreement), in lawful money of the United States of America
and in immediately available funds, on the dates and in the principal amounts provided in the
Credit Agreement, and to pay interest on the unpaid principal amount of each such Acquisition Loan,
at such office, in like money and funds, for the period commencing on the date of such Acquisition
Loan until such Acquisition Loan shall be paid in full, at the rates per annum and on-the dates
provided in the Credit Agreement.



The date, amount, Type, interest rate and duration of Interest Period (if applicable) of each
Acquisition Loan made by the Bank to the Borrower, and each payment made on account of the
principal of such Acquisition Loan, shall be recorded by the Bank on its books and, prior to any
transfer of this Note, endorsed by the Bank on the schedule attached to this Note or any
continuation of such schedule, provided that the failure of the Bank to make any such recordation
or endorsement shall not affect the obligations of the Borrower to make a payment when due of any
amount owing under the Credit Agreement or under this Note in respect of the Acquisition Loans made
by the Bank.



This Note is one of the Notes referred to in the Credit Agreement dated as of November 6,
2006 (as extended, renewed, amended or restated from time to time, the “Credit Agreement”) among
AmeriGas Propane, L.P., as borrower, AmeriGas Propane, Inc., as guarantor, Petrolane Incorporated,
as guarantor, certain Banks which are parties thereto, Wachovia Bank, National Association, as
Agent, Issuing Bank and Swing Line Bank and the other parties thereto, and evidences Acquisition
Loans made by the Bank under the Credit Agreement. Capitalized terms used but not defined in this
Note have the respective meanings assigned to them in the Credit Agreement.



The Credit Agreement provides for the acceleration of the maturity of this Note upon the
occurrence of certain events and for prepayments of Loans upon the terms and conditions specified
in the Credit Agreement. This Note is secured by and entitled to the benefits of the Security
Documents.



Except as permitted by Section 12.9 of the Credit Agreement, this Note may not be
assigned by the Bank to any other Person.


 


F-1-1









 





THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK.



	 	 	 	 	 
	 	AMERIGAS PROPANE, L.P.

 	 
	 	By:  	AMERIGAS PROPANE, INC., 	 
	 	 	as General Partner 	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 


F-1-2









 




SCHEDULE OF ACQUISITION LOANS



This Note evidences Acquisition Loans made, continued or converted under the Credit Agreement
to the Borrower, on the dates, in the principal amounts, of the Types, bearing interest at the
rates and having Interest Periods (if applicable) of the durations set forth below, subject to the
payments, continuations, conversions and prepayments of principal set forth below:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Portion of Principal Amount	 	 	 	 	 	Amount Paid,	 	 	 	 
	Date Made,	 	Maintained as	 	 	 	 	 	Prepaid,	 	Unpaid	 	 
	Continued or	 	Base Rate	 	Eurodollar	 	 	 	Duration of	 	Continued or	 	Principal	 	Notation
	Converted	 	Loan	 	Loan	 	Interest Rate	 	Interest Period	 	Converted	 	Amount	 	made by
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 






 


F-1-3









 







EXHIBIT F-2

FORM OF PROMISSORY NOTE (REVOLVING LOANS)




PROMISSORY NOTE

(REVOLVING LOANS)




			
	 	 	 
	$                    
	 	November 6, 2006
	 
	 	New York, New York






FOR VALUE RECEIVED, AmeriGas Propane, L.P. (the “Borrower”), hereby promise to pay to
                                        
(the “Bank”), for the account of its respective Applicable Lending
Office provided for by the Credit Agreement referred to below, at the Agent’s Payment Office,
the principal sum of                      (or such lesser amount as shall equal the aggregate unpaid
principal amount of the Revolving Loans made by the Bank to the Borrower under the Credit
Agreement), in lawful money of the United States of America and in immediately available funds, on
the dates and in the principal amounts provided in the Credit Agreement, and to pay interest on
the unpaid principal amount of each such Revolving Loan, at such office, in like money and funds,
for the period commencing on the date of such Revolving Loan until such Revolving Loan shall be
paid in full, at the rates per annum and on the dates provided in the Credit Agreement.




The date, amount, Type, interest rate and duration of Interest Period (if applicable) of each
Revolving Loan made by the Bank to the Borrower, and each payment made on account of the principal
of such Revolving Loan, shall be recorded by the Bank on its books and, prior to any transfer of
this Note, endorsed by the Bank on the schedule attached to this Note or any continuation of such
schedule, provided that the failure of the Bank to make any such recordation or endorsement shall
not affect the obligations of the Borrower to make a payment when due of any amount owing under the
Credit Agreement or under this Note in respect of the Revolving Loans made by the Bank.



This Note is one of the Notes referred to in the Credit Agreement dated as of November 6,
2006 (as extended, renewed, amended or restated from time to time, the “Credit Agreement”) among
AmeriGas Propane, L.P., as borrower, AmeriGas Propane, Inc., as guarantor, Petrolane Incorporated,
as guarantor, certain Banks which are parties thereto, Wachovia Bank, National Association, as
Agent, Issuing Bank and Swing Line Bank and the other parties thereto, and evidences Revolving
Loans made by the Bank under the Credit Agreement. Capitalized terms used but not defined in this
Note have the respective meanings assigned to them in the Credit Agreement.



The Credit Agreement provides for the acceleration of the maturity of this Note upon the
occurrence of certain events and for prepayments of Loans upon the terms and conditions specified
in the Credit Agreement. This Note is secured by and entitled to the benefits of the Security
Documents.



Except as permitted by Section 12.9 of the Credit Agreement, this Note may not be
assigned by the Bank to any other Person.


 


F-2-1









 





THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK.



	 	 	 	 	 
	 	AMERIGAS PROPANE, L.P.

 	 
	 	By: 	AMERIGAS PROPANE, INC.,
 	 
	 	 	as General Partner 	 


	 	 	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



 


F-2-2









 







SCHEDULE OF REVOLVING LOANS





This Note evidences Revolving Loans made, continued or converted under the Credit Agreement to
the Borrower, on the dates, in the principal amounts, of the Types, bearing interest at the rates
and having Interest Periods (if applicable) of the durations set forth below, subject to the
payments, continuations, conversions and prepayments of principal set forth below:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Portion of Principal Amount	 	 	 	 	 	Amount Paid,	 	 	 	 
	Date Made,	 	Maintained as	 	 	 	 	 	Prepaid,	 	Unpaid	 	 
	Continued or	 	Base Rate	 	Eurodollar	 	 	 	Duration of	 	Continued or	 	Principal	 	Notation
	Converted	 	Loan	 	Loan	 	Interest Rate	 	Interest Period	 	Converted	 	Amount	 	made by
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 






 


F-2-3









 







EXHIBIT
G 


FORM OF SUBORDINATION PROVISIONS





Subordination. (a) The indebtedness
(“Subordinated Debt”) evidenced by this
instrument is subordinate and junior in right of payment to all Senior Debt (as defined in
subsection (b) hereof) of
[                                        ]1
(the “Company”) to the extent provided
herein.




(b) For all purposes of these subordination provisions the term “Senior Debt” shall mean all
principal and interest and other amounts of any kind or nature owing under the Credit Agreement
dated as of November 6, 2006 (the “Credit Agreement”) by and among the Company, AmeriGas Propane,
Inc., as a guarantor, Petrolane Incorporated, as a guarantor, the financial institutions party
thereto, Wachovia Bank, National Association, as Administrative Agent and the other parties
thereto. The Senior Debt shall continue to be Senior Debt and entitled to the benefits of these
subordination provisions irrespective of any amendment, modification or waiver of any term of or
extension or renewal of the Senior Debt.



(c) Upon the happening of an Event of Default with respect to any Senior Debt, as defined in
the Credit Agreement, which occurs at the maturity thereof or which automatically accelerates or
permits the holders thereof to accelerate the maturity thereof, then, unless and until such event
of default shall have been remedied or waived or shall have ceased to exist, no direct or indirect
payment (in cash, property or securities or by set off or otherwise) other than Permitted Payments
shall be made on account of the principal of, or premium, if any, or interest on any Subordinated
Debt, or as a sinking fund for the Subordinated Debt, or in respect of any redemption, retirement,
purchase or other acquisition of any of the Subordinated Debt. For purposes of these
subordination provisions, “Permitted Payments” shall mean (i) payments of in-kind interest and
(ii) payments of Permitted Securities (as defined below) pursuant to subsection (d) below.




(d) In the event of:



(i) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment,
composition or other similar proceeding relating to the Company, its creditors as such or its
property,



(ii) any proceeding for the liquidation, dissolution or other winding up of the Company,
voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,




(iii) any assignment by the Company for the benefit of creditors, or




(iv) any other marshalling of the assets of the Company,


 





	 	 	 
	1	 	Fill in name of Borrower (if entered into pursuant to Section 8.1(d) of the
Credit Agreement) or Restricted Subsidiary (if entered into pursuant to Section 8.1(c) of the
Credit Agreement), as applicable.





 


G-1









 







all Senior Debt (including any interest thereon accruing at the legal rate after the commencement
of any such proceedings and any additional interest that would have accrued thereon but for the
commencement of such proceedings) shall first be paid in full before any payment or distribution,
whether in cash, securities or other property (other than Permitted Payments), shall be made to
any holder of any Subordinated Debt on account of any Subordinated Debt. Any payment or
distribution, whether in cash, securities or other property (other than securities (“Permitted
Securities”) of the Company or any other entity provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the extent provided in these
subordination provisions with respect to Subordinated Debt, to the payment of all Senior Debt at
the time outstanding and to any securities issued in respect thereof under any such plan of
reorganization or readjustment), which would otherwise (but for these subordination provisions) be
payable or deliverable in respect of this Subordinated Debt shall be paid or delivered directly to
the holders of Senior Debt in accordance with the priorities then existing among such holders
until all Senior Debt (including any interest thereon accruing at the legal rate after the
commencement of any such proceedings and any additional interest that would have accrued thereon
but for the commencement of such proceedings) shall have been paid in full.



(e) In the event that any holder of Subordinated Debt shall have the right to declare any
Subordinated Debt due and payable as a result of the occurrence of any one or more defaults in
respect thereof, under circumstances when the terms of subsection (d) above are not applicable,
such holder shall not declare such Subordinated Debt due and payable or otherwise to be in default
and, solely in its capacity as a holder of such Subordinated Debt, shall take no action at law or
in equity in respect of any such default unless and until all Senior Debt shall have been paid in
full.



(f) If any payment or distribution of any character or any security, whether in cash,
securities or other property (other than Permitted Payments), shall be received by a holder of
Subordinated Debt in contravention of any of the terms hereof before all the Senior Debt shall have
been paid in full, such payment or distribution or security shall be received in trust for the
benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Debt
at the time outstanding in accordance with the priorities then existing among such holders for
application to the payment of all Senior Debt remaining unpaid, to the extent necessary to pay all
such Senior Debt in full. In the event of the failure of any holder of any Subordinated Debt to
endorse or assign any such payment, distribution or security, each holder of Senior Debt is hereby
irrevocably authorized to endorse or assign the same.



(g) No present or future holder of any Senior Debt shall be prejudiced in the right to enforce
subordination of Subordinated Debt by any act or failure to act on the part of the Company.
Nothing contained herein shall impair, as between the Company and the holder of this Subordinated
Debt, the obligation of the Company to pay to the holder hereof the principal hereof and interest
hereon as and when the same shall become due and payable in accordance with the terms hereof, or
prevent the holder of any Subordinated Debt from exercising all rights, powers and remedies
otherwise permitted by applicable law or hereunder upon a default or Event of Default hereunder,
all subject to the rights of the holders of the Senior Debt to receive cash,


 


G-2









 





securities or other property (other than Permitted Payments) otherwise payable or deliverable to
the holders of Subordinated Debt.



(h) Upon the payment in full of all Senior Debt, the holders of Subordinated Debt shall be
subrogated to all rights of any holders of Senior Debt to receive any further payments or
distributions applicable to the Senior Debt until the Subordinated Debt shall have been paid in
full, and, for purposes of such subrogation, no payment or distribution received by the holders of
Senior Debt of cash, securities or other property to which the holders of the Subordinated Debt
would have been entitled except for these subordination provisions shall, as between the Company
and its creditors other than the holders of Subordinated Debt, on the one hand, and the holders of
Subordinated Debt, on the other, be deemed to be a payment or distribution by the Company to or on
account of Senior Debt.




 


G-3