EXHIBIT 10.8
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AMENDMENT NO. 5
TO NOTE AGREEMENT FOR
7.54% SENIOR NOTES DUE 2011
SUBURBAN PROPANE, L.P.
November 20, 2002
To each of the Holders of the 7.54% Senior Notes due 2011 of Suburban Propane,
L.P.
Ladies and Gentlemen:
Suburban Propane, L.P. (the "COMPANY") has heretofore issued
its 7.54% Senior Notes due June 30, 2011 (the "NOTES") in the aggregate
principal amount of $425,000,000 under and pursuant to the Note Agreement, dated
as of February 28, 1996, among the Company and the original purchasers of the
Notes, as amended by Amendment No. 1 dated May 5, 1998, Amendment No. 2 dated
March 29, 1999, Amendment No. 3 dated December 6, 2000, and Amendment No. 4
dated March 21, 2002 (such agreement, as so amended, the "NOTE AGREEMENT").
Terms used herein which are defined in the Note Agreement are used herein as so
defined.
In connection with the foregoing the Company is requesting
certain amendments to the Note Agreement and, subject to the terms and
provisions hereof, each undersigned holder of Notes is agreeable thereto.
Accordingly, the Company agrees with you as follows:
1. AMENDMENTS.
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(a) PARAGRAPH 5A(vii). Paragraph 5A(vii) of
the Note Agreement is deleted in its entirety and the
following substituted therefor:
(vii) as soon as possible after, and in any
event within 10 Business Days after any Responsible Officer of
the Company or any ERISA Affiliate knows or has reason to know
that, any ERISA Event has occurred or is expected to occur
that, alone or together with any other ERISA Events that have
occurred, in the opinion of the principal financial officer of
the Company could reasonably be expected to result in any
liability of the Company, a statement setting forth a detailed
description of such ERISA Event and the action, if any, that
the Company or any ERISA Affiliate has taken, is taking or
proposes to take or cause to be taken with respect thereto
(together with a copy of any notice, report or other written
communication filed with or given to or received from the
PBGC, the Internal Revenue Service or the Department of Labor
with respect to such event or condition);
(b) PARAGRAPH 5O(i)(b). Paragraph 5O(i)(b)
of the Note Agreement is amended to delete the reference to
"paragraphs 6A(ii)" and to insert "paragraphs 6A(i), 6A(ii)"
in replacement therefor.
(c) PARAGRAPH 5R. Paragraph 5R of the Note
Agreement is amended to delete the reference to "paragraphs 6B
and 6A(ii)" and to insert "paragraphs 6A(i), 6A(ii) and 6B" in
replacement therefor.
(d) PARAGRAPH 6A. Paragraph 6A of the Note
Agreement is deleted in its entirety and the following
substituted therefor:
6A. FINANCIAL RATIOS. The Company will not permit:
(i) Ratio OF CONSOLIDATED TOTAL INDEBTEDNESS
TO EBITDA. The ratio of Consolidated Total
Indebtedness (excluding any amounts under clause (k)
of the definition of Indebtedness) at the end of any
fiscal quarter to exceed 5.00 times Consolidated
EBITDA for any period of four fiscal quarters.
(ii) Ratio OF CONSOLIDATED TOTAL
INDEBTEDNESS TO EBITDA. The ratio of Consolidated
Total Indebtedness at the end of any fiscal quarter
to exceed 5.25 times Consolidated EBITDA for any
period of four fiscal quarters.
(iii) Ratio OF EBITDA TO INTEREST EXPENSE.
The ratio of Consolidated EBITDA for any period of
four fiscal quarters to Consolidated Interest Expense
for such period (minus interest income included in
Consolidated Net Income for such period) to be less
than 2.50 to 1.0.
Notwithstanding any of the provisions of
this Agreement, the Company will not, and will not
permit any Restricted Subsidiary to, enter into any
transaction pursuant to paragraph 5O, paragraph 6B,
clauses (vii) or (viii) of ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇
▇▇, clauses (i)(b), (i)(c), (ii)(b) or (iii) of
paragraph 6G or paragraph 6I, if the consummation of
any such transaction would result in a violation of
clause (i), (ii) or (iii) of this paragraph 6A,
calculated for such purpose as of the date on which
such transaction were to be consummated, both
immediately before and after giving effect to the
consummation of such transaction. All such
calculations shall be made on a PRO FORMA basis in
accordance with GAAP after giving effect to any such
transaction, with the ratio recomputed as at the last
day of the most recently ended fiscal quarter of the
Company as if such transaction had occurred on the
first day of the relevant four quarter period.
(e) PARAGRAPH 6G(i)(b). Paragraph 6G(i)(b)
of the Note Agreement is amended to delete the reference to
"paragraph 6B and paragraph 6A(ii)" and to insert "paragraphs
6A(i), 6A(ii) and 6B" in replacement therefor.
(f) PARAGRAPH 6G(i)(c). Paragraph 6G(i)(c)
of the Note Agreement is amended to delete the reference to
"paragraph 6B and paragraph 6A(ii)" and to insert "paragraphs
6A(i), 6A(ii) and 6B" in replacement therefor.
(g) DEFINITIONS--AVAILABLE CASH. The
definition of "Available Cash" contained in paragraph 10B is
amended to delete the reference to "paragraphs 6B and 6A(ii)"
and to insert "paragraphs 6A(i), 6A(ii) and 6B" in replacement
therefor.
(h) DEFINITIONS--INDEBTEDNESS. Clause (k) of
the definition of "Indebtedness" contained in paragraph 10B is
deleted in its entirety and the following substituted
therefor:
(k)(1) with respect to each Plan maintained by such
Person or any ERISA Affiliate of such Person, the
amount by which such Plan's projected benefit
obligations exceed the fair market value of its
assets, as determined under Statement of Financial
Accounting Standards No. 87, and (2) all asserted
withdrawal liabilities of such Person or any ERISA
Affiliate of such person to a Multiemployer Plan;
2. EFFECTIVENESS. The amendments to the Note Agreement set
forth above shall become effective upon (i) receipt by ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇,
on behalf of the holders of the Notes, of counterparts of this letter executed
by the Company and the Required Holders, (ii) payment by the Company of a fee to
each holder of outstanding Notes in an amount equal to 0.125% of the outstanding
principal amount of Notes held by such holder and (iii) receipt by ▇▇▇▇▇▇▇ ▇▇▇▇
& ▇▇▇▇▇▇▇▇▇, on behalf of the holders of the Notes, of a consent in the form of
Exhibit A hereto executed by each Subsidiary Guarantor. The Company represents
and warrants to the holders of the Notes that no Default or Event of Default
exists (nor will any such Default or Event of Default exist after giving effect
to the effectiveness of this Agreement) and that in connection with this
solicitation of the consents of the holders of the Notes it is in compliance
with the provisions of paragraph 11C of the Note Agreement. The Company shall
give notice of the effectiveness hereof to all of the holders of the Notes as
provided in the Note Agreement.
3. NOTE AGREEMENT. The Note Agreement, as amended hereby, is
and shall continue to be in full force and effect and is hereby in all respects
ratified and confirmed. Except as expressly modified and amended hereby, all of
the terms, provisions and conditions of the Note Agreement shall remain
unchanged and in full force and effect. On and after the effective date of the
amendments to the Note Agreement set forth above, each reference in the Note
Agreement and the Notes shall mean and be a reference to the Note Agreement as
amended hereby.
4. COUNTERPARTS. This letter agreement may be executed in any
number of counterparts and by any combination of the parties hereto in separate
counterparts, each of which counterparts shall be an original and all of which
taken together shall constitute one and the same agreement.
[Balance of this page is blank. Next page is the signature page]
If you are in agreement with the foregoing, please sign the
form of acceptance on an enclosed counterpart of this letter and return the same
to us (subject to effectiveness as aforesaid).
SUBURBAN PROPANE, L.P.
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President - Finance
The foregoing letter is hereby accepted:
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(Name of Institution)
By:
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Title:
Certificate #
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EXHIBIT A
CONSENT
Reference is hereby made to the Note Agreement, dated as of
February 28, 1996, among the Company and the original purchasers of the Notes,
as amended by Amendment No. 1 dated May 5, 1998, Amendment No. 2 dated March 29,
1999, Amendment No. 3 dated December 6, 2000, and Amendment No. 4 dated March
21, 2002 (such agreement, as so amended, the "NOTE AGREEMENT"). Terms used
herein which are defined in the Note Agreement are used herein as so defined.
Each of the undersigned, a direct or indirect subsidiary of
Suburban Propane, L.P. (the "COMPANY") and a Guarantor under a Guarantee
Agreement (a "GUARANTY") in favor of the holders of the Notes, hereby consents
to Amendment No. 5 to the Note Agreement to which this Consent is attached as an
exhibit (the "AMENDMENT") and hereby confirms and agrees that the Guaranty
executed by such entity is, and shall continue to be, in full force and effect
and is hereby confirmed and ratified in all respects except that, upon the
effectiveness of, and on and after the date of, the Amendment, all references in
the Guaranty to the Note Agreement, "thereunder", "thereof", or words of like
import referring to the Note Agreement shall mean the Note Agreement as amended
by the Amendment.
Suburban @ Home, Inc. Suburban Propane Gas Corporation
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President, Finance & Title: Vice President, Finance &
Treasurer Treasurer
Gas Connection, Inc. ▇▇▇▇▇▇, Inc.
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President, Finance & Title: Vice President, Finance &
Treasurer Treasurer
Suburban Franchising, Inc. Vangas, Inc.
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President, Finance & Title: Vice President, Finance &
Treasurer Treasurer
Suburban Holdings, Inc. Plateau, Inc.
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President, Finance & Title: Vice President, Finance &
Treasurer Treasurer