exv10w34w1



 





Exhibit 10.34.1




FIRST AMENDMENT TO CREDIT AGREEMENT




     THIS FIRST AMENDMENT TO CREDIT AGREEMENT (herein called the “First
Amendment”) dated for reference as of May 28, 2004, but effective for all
purposes on the Effective Date provided herein, by and among LA GRANGE
ACQUISITION, L.P. (“Borrower”), a Texas limited partnership, and FLEET NATIONAL
BANK, as administrative agent (in such capacity, “Administrative Agent”), and
the Lenders referred to herein.



W I T N E S S E T H:




     WHEREAS, Borrower, Administrative Agent, FLEET SECURITIES, INC. (now BANC
OF AMERICA SECURITIES LLC) and WACHOVIA CAPITAL MARKETS, LLC, as joint lead
arrangers and book runners, WACHOVIA BANK, NATIONAL ASSOCIATION, as syndication
agent, THE ROYAL BANK OF SCOTLAND PLC and BNP PARIBAS, as co-documentation
agents, BANK OF SCOTLAND, as senior managing agent, U.S. BANK NATIONAL
ASSOCIATION and FORTIS CAPITAL CORP., as co-agents, and the Lenders party
thereto (“Lenders”) have entered into that certain Second Amended and Restated
Credit Agreement dated as of January 20, 2004 (the “Original Agreement”), for
the purpose and consideration therein expressed, whereby Lenders became
obligated to extend credit to Borrower as therein provided;



     WHEREAS, TXU Fuel Company, a Texas corporation (“Seller”), and Energy
Transfer Partners, L.P, a Delaware limited partnership, formerly known as
Heritage Propane Partners, L.P. (“Master Partnership”), have entered into a
Purchase and Sale Agreement (such agreement, in the form existing on the date
hereof, and as amended in compliance with Section 2.4 hereof, the “TXU Fuel
Purchase Agreement”) dated April 25, 2004, pursuant to which Seller agreed to
sell to Master Partnership and Master Partnership agreed to purchase from
Seller the Assets (as defined in the TXU Fuel Purchase Agreement), including
without limitation certain real properties, rights-of-way, easements,
pipelines, gas storage facilities and related personal property (the “TXU Fuel
Acquisition”), for a base purchase price of $500,000,000, plus or minus certain
working capital and other adjustments specified therein;



     WHEREAS, Borrower is a wholly-owned subsidiary of Master Partnership, and
Borrower or a to-be-formed wholly-owned subsidiary of Borrower will acquire the
Assets pursuant to an assignment from Master Partnership of its rights under
the TXU Fuel Purchase Agreement; and



     WHEREAS, in order to provide for such acquisition, Borrower desires to
amend the Original Agreement as provided herein;



     NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and in the Original Agreement and in
consideration of the loans and other credit that may hereafter be extended by
Lenders to Borrower, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto do hereby
agree as follows:



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ARTICLE I. – Definitions and References




     Section 1.1. Terms Defined in the Original Agreement. Unless the context
otherwise requires or unless otherwise expressly defined herein, the terms
defined in the Original Agreement shall have the same meanings whenever used in
this First Amendment. The term “the Credit Agreement” shall mean the Original
Agreement as amended by this First Amendment.



ARTICLE II. – Amendments to Original Agreement




     Section 2.1. New Definitions. Section 1.1 of the Original Agreement is
amended by adding the following definitions in alphabetical order:




“‘Acquisition Period’ means the period beginning with the funding of
the purchase price for the TXU Fuel Acquisition, and ending
365 days after the commencement of such period.”




“‘TXU Fuel’ means TXU Fuel Company, a Texas corporation.”




“‘TXU Fuel Acquisition’” means the purchase by Borrower or another
Restricted Person of the Assets (as defined in the TXU Fuel Purchase
Agreement), pursuant to and in accordance with the TXU Fuel Purchase
Agreement.”




“‘TXU Fuel Purchase Agreement’ means that certain Purchase and Sale
Agreement dated April 25, 2004, by and between TXU Fuel and Master
Partnership.”



Section 2.2. Amendments to Existing Definitions. The definitions of
“Lender Schedule”, “Master Partnership”, “Maximum Facility Amount”, “Revolver
Commitment”, and “Term Commitment” in Section 1.1 of the Original Agreement are
hereby amended in their entirety to read as follows:




“‘Lender Schedule’ means Schedule 1 hereto, as it may be revised
pursuant to Section 10.5(c)(ii) or Section 2.13.”




“‘Master Partnership’ means Energy Transfer Partners, L.P., a
Delaware limited partnership, formerly known as Heritage Propane
Partners, L.P.”




“‘Maximum Facility Amount’ means the sum of $500,000,000, as such
amount may be increased as provided in Section 2.13.”




“‘Revolver Commitment’ means the amount of $175,000,000, as such
amount may be reduced from time to time as provided in Section 2.6,
reduced by Borrower from time to time as provided in Section 2.12, or
increased as provided in Section 2.13. Each Lender’s Revolver Commitment
shall be the amount set forth for such Lender on the Lender Schedule.”



FIRST AMENDMENT TO CREDIT AGREEMENT




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“‘Term Commitment’ means $325,000,000, as such amount may be
increased as provided in Section 2.13. Each Lender’s Term Commitment
shall be the amount set forth for such Lender on the Lender Schedule.”



     Section 2.3. Consolidated EBITDA. The definition of “Consolidated EBITDA”
in Section 1.1 of the Original Agreement is hereby amended to add the following
sentences at the end thereof:




“The pro forma effect referred to herein with respect to the assets
and operations acquired in the TXU Fuel Acquisition shall apply to each
Fiscal Quarter beginning prior to July 1, 2004 and shall be deemed to be
an addition to Consolidated EBITDA of $16,250,000 per Fiscal Quarter.
Compliance with Section 7.14(a) shall be determined without pro forma
adjustment to Consolidated EBITDA or to Consolidated Interest Expense.”



     Section 2.4. Use of Proceeds. The first sentence of Section 2.4 of the
Original Agreement is hereby amended to add the following proviso to the end
thereof:




“; provided, however, that Borrower shall use the proceeds from the
Term Loans made pursuant to an increase in the Term Commitment under
Section 2.13(a) for the purposes set forth in Section 2.13(a).”



     Section 2.5. Increase in Commitments. The following new Section 2.13 is
hereby added to the Original Agreement as follows:




“Section 2.13. Increase in Commitments.




(a) Borrower shall have the option, without the consent of the
Lenders, to cause a single increase in the Term Commitment by adding,
subject to the prior approval of Administrative Agent (such approval not
to be unreasonably withheld), to this Agreement one or more financial
institutions as Lenders (collectively, the “New Term Lenders”) or by
allowing one or more Lenders to increase their respective Term
Commitments; provided however that: (i) prior to and after giving effect
to the increase, no Default or Event of Default shall have occurred
hereunder and be continuing, (ii) no such increase shall cause the Term
Commitment to exceed $725,000,000, (iii) no Lender’s Term Commitment
shall be increased without such Lender’s consent, (iv) such increase
shall be evidenced by a Commitment Increase Supplement in form and
substance acceptable to Administrative Agent and executed by Borrower,
Administrative Agent, New Term Lenders, if any, and Lenders increasing
their Term Commitments, if any, and which shall indicate the amount and
allocation of such increase in the Term Commitment and the effective date
of such increase (the “Term Loan Increase Effective Date”), and (v)
Borrower shall use all proceeds of such increase (A) to finance all or a
portion of the purchase price of the TXU Fuel Acquisition and (B) to pay
the out-of-pocket expenses incurred and fees payable in respect of the
TXU Fuel Acquisition and this Agreement. Subject to the terms and
conditions hereof (including Section 10.14) and provided that the
aggregate amount of all Term Loans does not exceed the total Term



FIRST AMENDMENT TO CREDIT AGREEMENT





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Commitment, (i) each New Lender agrees to make a Term Loan to Borrower on
the Term Loan Increase Effective Date in the amount of such Lender’s Term
Commitment set forth on the revised Lender Schedule, and (ii) each
existing Lender agrees to make a Term Loan to Borrower on the Term Loan
Increase Effective Date in the amount of the increase, if any, in such
Lender’s Term Commitment.




          (b) Borrower shall have the option, without the consent of the
Lenders, from time to time to cause one or more increases in the Revolver
Commitment by adding, subject to the prior approval of Administrative
Agent (such approval not to be unreasonably withheld), to this Agreement
one or more financial institutions as Lenders (collectively, the “New
Revolver Lenders”, and together with the New Term Lenders, the “New
Lenders”) or by allowing one or more Lenders to increase their respective
Revolver Commitments; provided however that: (i) prior to and after
giving effect to the increase, no Default or Event of Default shall have
occurred hereunder and be continuing, (ii) no such increase shall cause
the Revolver Commitment to exceed $225,000,000, (iii) no Lender’s
Revolver Commitment shall be increased without such Lender’s consent, and
(iv) such increase shall be evidenced by a Commitment Increase Supplement
in form and substance acceptable to Administrative Agent and executed by
Borrower, Administrative Agent, New Revolver Lenders, if any, and Lenders
increasing their Revolver Commitments, if any, and which shall indicate
the amount and allocation of such increase in the Revolver Commitment and
the effective date of such increase (the “Revolver Loan Increase
Effective Date”). Borrower shall borrow and prepay Revolver Loans on
each Revolver Loan Increase Effective Date (and pay any additional
amounts required pursuant to Section 3.6) to the extent necessary to keep
the outstanding Revolver Loans of each Lender ratable with such Lender’s
revised Revolver Percentage after giving effect to any nonratable
increase in the Revolver Commitments under this Section 2.13(b).




          (c) As a condition precedent to each increase pursuant to
subsections (a) and (b) above, Borrower shall deliver to Administrative
Agent a certificate of each Restricted Person dated as of the Term Loan
Increase Effective Date or Revolver Loan Increase Effective Date, as
applicable (each an “Increase Effective Date”), signed by a Co-Chief
Executive Officer of such Restricted Person (i) certifying and attaching
the resolutions adopted by such Restricted Person approving or consenting
to such increase, (ii) certifying that each of the conditions to such
increase set forth in Section 2.13(a) or (b), as applicable, shall have
occurred and been complied with, and (iii) certifying that, before and
after giving effect to such increase, (A) the representations and
warranties contained in this Agreement and the other Loan Documents made
by it are true and correct in all material respects on and as of the
Increase Effective Date after giving effect to such increase, except to
the extent that such representations and warranties specifically refer to
an earlier date, in which case they were true and correct in all material
respects as of such earlier date, and (B) no Default or Event of Default
exists.




          (d) On each Increase Effective Date, Administrative Agent shall
provide to Borrower and each Lender a revised Lender Schedule reflecting
the changes, as applicable, in the Revolver Commitment and/or the Term
Commitment, each Lender’s Revolver Percentage, and/or each Lender’s
Percentage Share resulting from such



FIRST AMENDMENT TO CREDIT AGREEMENT





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increase. On each Increase
Effective Date, Borrower shall execute and deliver a Revolver Note (in
the form of Exhibit A-1 with appropriate insertions) and/or a Term
Note (in the form of Exhibit A-2 with appropriate insertions), as
applicable, payable to the order of each New Lender and each existing
Lender that has agreed to increase its Revolver Commitment and/or Term
Commitment, as applicable. Each financial institution that becomes a New
Lender pursuant to this Section 2.13 by the execution and delivery to
Administrative Agent of the applicable Commitment Increase Supplement,
shall be a ‘Lender’ for all purposes under this Agreement on the
applicable Increase Effective Date.”



     Section 2.6. Leverage Ratio. Section 7.14(b) of the Original Agreement is
hereby amended in its entirety to read as follows:




“(b) Leverage Ratio. (i) At the end of each Fiscal Quarter, (ii) on
each date on which Borrower makes a distribution permitted under Section
7.6, and (iii) on the date of each Permitted Acquisition, both
immediately prior to and after giving effect to the consummation thereof,
the Leverage Ratio will not be greater than:




     (i)
During the Acquisition Period:                4.75 to 1.0;




     (ii)
Other than during the Acquisition Period:
               4.00 to 1.0.”



     Section 2.7. TXU Fuel Purchase Agreement. The following new Section 7.15
is hereby added to the Original Agreement as follows:




“Section 7.15. TXU Fuel Purchase Agreement. Borrower will not,
without the prior consent of Majority Lenders, permit any amendment or
waiver of any provision of the TXU Fuel Purchase Agreement if such
amendment or waiver would change in any material respects adverse to
Master Partnership, Borrower or any Subsidiary of Borrower, as
applicable, the indemnifications or guaranties made by any of them or
given to any of them in the TXU Fuel Purchase Agreement or change in any
material respects adverse to Master Partnership, Borrower or any
Subsidiary of Borrower the other terms of the TXU Fuel Purchase
Agreement.”



     Section 2.8. Consent to TXU Fuel Acquisition. Subject to the terms and
conditions in this First Amendment and the Credit Agreement, Administrative
Agent and each of the undersigned Lenders hereby (a) consent to the
consummation of the TXU Fuel Acquisition, pursuant to the terms and provisions
of the TXU Fuel Purchase Agreement and (b) agree that the consummation of the
TXU Fuel Acquisition shall not constitute a Default or Event of Default under
the Credit Agreement.



ARTICLE III. – Conditions of Effectiveness




     Section 3.1. Effective Date. This First Amendment shall become effective
(the “Effective Date”), and is expressly conditioned, upon the receipt by
Administrative Agent, at Administrative Agent’s office, of a counterpart of
this First Amendment executed and delivered by Borrower, Administrative Agent
and Majority Lenders and each of the following:



FIRST AMENDMENT TO CREDIT AGREEMENT





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     (a) Certain certificates including:




                    (i) A supplemental Omnibus Certificate of the secretary and of
the Co-Chief Executive Officer of LA GP, which shall contain the
names and signatures of the officers of LA GP authorized to execute
Loan Documents and which shall certify to the truth, correctness
and completeness of: (1) a copy of resolutions duly adopted by the
Board of Directors of LA GP and in full force and effect at the
time this First Amendment is entered into, authorizing the
execution of this First Amendment and the other Loan Documents
delivered or to be delivered in connection herewith and the
consummation of the transactions contemplated herein and therein,
and (2) the copies of the organizational documents of each
Restricted Person and all amendments thereof and any bylaws,
agreement of limited partnership or operating agreement of each
Restricted Person provided in connection with the Original
Agreement (or, if modified, copies of such modification); and




                    (ii) A certificate of the president and of the chief financial
officer of LA GP, regarding satisfaction of Section 4.3(a) through
(d) of the Agreement.



     (b) A certificate (or certificates) of the due formation, valid existence
and good standing of each Restricted Person in its respective jurisdiction of
organization, issued by the appropriate authorities of such jurisdiction, and
certificates of each Restricted Person’s good standing and due qualification to
do business, issued by appropriate officials in any jurisdictions in which such
Restricted Person owns property subject to Security Documents.



     (c) Documents similar to those specified in subsections (a)(i) and (b) of
this section with respect to each Guarantor (including copies of the
organizational documents and all amendments thereof and any bylaws, agreement
of limited partnership or operating agreement of each Person that will become a
Guarantor in connection with the TXU Fuel Acquisition) and the execution by it
of each Loan Document to which it is a party.



     (d) Favorable opinions of Texas and Oklahoma counsel satisfactory to
Administrative Agent similar in substance and scope to those previously
delivered in connection with the Original Agreement.



     (e) Certificates or binders evidencing Restricted Persons’ insurance in
effect on the date of the TXU Fuel Acquisition accompanied by a certificate of
an appropriate officer confirming that the insurance is in effect as of such
date.



     (f) Copies of such permits and approvals regarding the property and
business of Restricted Persons as Administrative Agent may request.



     (g) Administrative Agent shall have received a certificate of LA GP
confirming compliance with the requirements of Section 3.2 of this First
Amendment.



     Section 3.2. TXU Fuel Acquisition. This First Amendment shall become
effective, and is expressly conditioned, upon the following, on a
contemporaneous basis with the effective date



FIRST AMENDMENT TO CREDIT AGREEMENT






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of this First Amendment, (i) all
transactions contemplated by the TXU Fuel Purchase Agreement shall have been
consummated in compliance with each of the terms and conditions thereof, (ii)
Borrower and each Restricted Person (as applicable) have delivered to
Administrative Agent, each properly completed and executed (and acknowledged when required) by such
Restricted Persons, in form and substance satisfactory to Administrative Agent:
(A) any new mortgages, deeds of trust, other Security Documents, and
appropriate UCC-1 and UCC-3 financing statements requested by Administrative
Agent, covering the Assets (as defined in the TXU Fuel Purchase Agreement)
being acquired by the applicable Restricted Person pursuant to the TXU Fuel
Acquisition and (B) any amendments or supplements to any existing Security
Document for filing with the appropriate authorities to evidence the increase
in the Term Commitment pursuant to Section 2.13(a) of the Credit Agreement and
to provide for any increase in the Revolver Commitment pursuant to Section
2.13(b) of the Credit Agreement, and (iii) all representations and warranties
made in any Loan Document shall be true on and as of such date
contemporaneously with the consummation of the TXU Fuel Acquisition after
giving effect to the TXU Fuel Acquisition, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they were true and correct in all material respects as of such earlier
date.




ARTICLE IV. – Representations and Warranties




     Section 4.1. Representations and Warranties. In order to induce
Administrative Agent and Majority Lenders to execute and deliver this First
Amendment, Borrower represents and warrants to each Lender that:



     (a) The representations and warranties contained in Article V of the
Original Agreement are true and correct at and as of the time of the
effectiveness hereof.



     (b) Borrower is duly authorized to execute and deliver this First
Amendment, Borrower is and will continue to be duly authorized to borrow monies
under the Credit Agreement, and Borrower is and will continue to be duly
authorized to perform its obligations under the Credit Agreement. Borrower has
duly taken all action necessary to authorize the execution and delivery of this
First Amendment and to authorize the performance of the obligations of Borrower
hereunder.



     (c) The execution and delivery by each Restricted Person of this First
Amendment, the performance by each Restricted Person of its obligations
hereunder and the consummation of the transactions contemplated hereby and
thereby do not and will not conflict with any provision of law, statute, rule
or regulation or of the organizational documents of any Restricted Person, or
of any material agreement, judgment, license, order or permit applicable to or
binding upon any Restricted Person, or result in the creation of any lien,
charge or encumbrance upon any assets or properties of any Restricted Person.
Except for those which have been obtained, no consent, approval, authorization
or order of any court or governmental authority or third party is required in
connection with the execution and delivery by any Restricted Person of this
First Amendment or the consummation by any Restricted Person of the
transactions contemplated hereby.



     (d) When duly executed and delivered, each of this First Amendment and the
Credit Agreement will be a legal and binding obligation of Borrower enforceable
in accordance with its



FIRST AMENDMENT TO CREDIT AGREEMENT





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terms, except as limited by bankruptcy, insolvency or
similar laws of general application relating to the enforcement of creditors’
rights and by equitable principles of general application.




ARTICLE V. – Miscellaneous




     Section 5.1. Ratification of Agreements. The Original Agreement as hereby
amended is hereby ratified and confirmed in all respects. Any reference to the
Credit Agreement in any Loan Document shall be deemed to be a reference to the
Original Agreement as hereby amended. The execution, delivery and effectiveness
of this First Amendment shall not, except as expressly provided herein, operate
as a waiver of any right, power or remedy of Lenders or Administrative Agent
under the Credit Agreement, the Notes, or any other Loan Document nor
constitute a waiver of any provision of the Credit Agreement, the Notes or any
other Loan Document.



     Section 5.2. Survival of Agreements. All representations, warranties,
covenants and agreements of Borrower herein shall survive the execution and
delivery of this First Amendment and the performance hereof, and shall further
survive until all of the Obligations are paid in full. All statements and
agreements contained in any certificate or instrument delivered by any
Restricted Person hereunder or under the Credit Agreement to Administrative
Agent or any Lender shall be deemed to constitute representations and
warranties by, and agreements and covenants of, Borrower under this First
Amendment and under the Credit Agreement.



     Section 5.3. Loan Documents. This First Amendment is a Loan Document, and
all provisions in the Credit Agreement pertaining to Loan Documents apply
hereto.



     Section 5.4. Governing Law. This First Amendment shall be governed by and
construed in accordance with the laws applicable to the Credit Agreement.



     Section 5.5. Counterparts. This First Amendment may be separately
executed in counterparts and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to constitute one
and the same First Amendment.



     THIS FIRST AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.



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FIRST AMENDMENT TO CREDIT AGREEMENT





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     IN WITNESS WHEREOF, this Amendment is executed as of the date first
written above.



	 	 	 	 	 
	BORROWER:	 	LA GRANGE ACQUISITION, L.P.
	 
	 	 	 	 
	

	 	By:
	 	LA GP, LLC
	

	 	 	 	its general partner
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	
 
	

	 	 	 	Ray C. Davis
	

	 	 	 	Co-Chief Executive Officer
	 
	 	 	 	 
	 	 	FLEET NATIONAL BANK, as Administrative
	 	 	Agent, LC Issuer and a Lender
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	
 
	

	 	 	 	Name:
	

	 	 	 	Title:







FIRST AMENDMENT TO CREDIT
AGREEMENT









 






Signature Page to First Amendment

to Credit Agreement




     IN WITNESS WHEREOF, the undersigned Lender hereby consents to and enters
into the First Amendment to Credit Agreement dated for reference as of May
         , 2004, but effective for all purposes on the Effective Date provided
herein, among La Grange Acquisition, L.P., Fleet National Bank, as
administrative agent, and the Lenders referred to therein.



	 	 	 	 	 
	 	 	
 
	 	 	Name of Lender
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	
 
	

	 	 	 	Name:
	

	 	 	 	Title:






FIRST AMENDMENT TO CREDIT
AGREEMENT