EXECUTION
COPY
Exhibit 99.1
FIRST AMENDMENT
FIRST AMENDMENT, dated as of
November 2, 2005 (this “ Amendment ”), to
the Credit Agreement, dated as of December 17, 2004 (as
amended by this Amendment and as the same may be further amended,
supplemented or otherwise modified from time to time, the “
Credit Agreement ”), among PETROLEUM HEAT AND POWER
CO., INC., a Minnesota corporation (the “ Borrower
”), the other Loan Parties party thereto, the several lenders
from time to time parties thereto (collectively, the “
Lenders ”), JPMORGAN CHASE BANK, N.A., as an LC Issuer
and as Agent (in such capacity, the “ Agent ”),
BANK OF AMERICA, N.A. and WACHOVIA BANK, NATIONAL ASSOCIATION, as
co-syndication agents, and CITIZENS BANK OF MASSACHUSETTS and
GENERAL ELECTRIC CAPITAL CORPORATION, as co-documentation
agents.
WITNESSETH
:
WHEREAS, the Borrower has requested
that the Lenders amend certain terms in the Credit Agreement in the
manner provided for herein; and
WHEREAS, the Lenders are willing to
agree to the requested amendments;
NOW, THEREFORE, in consideration of
the premises contained herein, the parties hereto agree as
follows:
1. Defined Terms . Unless
otherwise defined herein, terms which are defined in the Credit
Agreement and used herein (and in the recitals hereto) as defined
terms are so used as so defined.
2. Amendments to Section 1.1
of the Credit Agreement . Section 1.1 of the Credit
Agreement is hereby amended as follows:
(a) by amending and restating in its
entirety the following definitions contained in such section to
read as follows:
“ Aggregate Commitment
” means the aggregate of the Commitments of all of the
Lenders, as reduced from time to time pursuant to the terms hereof,
which Aggregate Commitment shall be, as of the First Amendment
Effective Date, in the amount of $310,000,000; provided that
, for all purposes of this Agreement (other than the definition of
Available Commitment), the Aggregate Commitment shall be deemed to
be $260,000,000 for each day other than any day during a Seasonal
Availability Period.
“ Applicable Fee Rate
” means 0.375% per annum; provided that the
Applicable Fee Rate on the amount by which the Aggregate Commitment
exceeds $260,000,000, shall be, solely with respect to each day
other than any day during a Seasonal Availability Period,
0.10% per annum.
(b) by adding the following new
definitions in the proper alphabetical order:
“ Excess Proceeds
Termination Date ” means the Business Day after the date
on which the Parent shall have satisfied all of its obligations
under Section 3.7 of the Parent Indenture such that the Parent
shall not be required, after such date, to make an offer to
repurchase Parent Notes as a result of the Propane Sale.
“ Seasonal Availability
Period ” means, until the Facility Termination Date, any
period of up to four consecutive months during the period from
December 1 of each year through March 31 of the following
year, which period may be initiated by written notice by the
Borrower to the Agent given at least three Business Days, and not
more than ten Business Days, prior to the first day of such period
(the length of such period shall be specified in such notice (not
exceeding four months) and may be terminated early by written
notice to such effect by the Borrower to the Agent at least three
Business Days prior to the effective date of such
termination).
3. General Amendments to the
Credit Agreement . The Credit Agreement is hereby amended by
replacing each occurrence of the phrase “the first
anniversary of the date of consummation of the Propane Sale”
with the phrase “the Excess Proceeds Termination Date”
each time such phrase appears in the definition of Permitted
Acquisition and in Sections 6.16 and 6.28 of the Credit
Agreement.
4. Amendment to Subsection
2.10(b) of the Credit Agreement . Subsection 2.10(b) of the
Credit Agreement is hereby amended by deleting such Section in its
entirety and substituting in lieu thereof the following:
“(b) LC Fees . The
Borrower shall pay to the Agent, for the account of the Lenders
ratably in accordance with their respective Pro Rata Shares, a
letter of credit fee at a per annum rate equal to the Applicable
Margin for Eurodollar Loans in effect from time to time on the
average daily undrawn stated amount under each Facility LC, such
fee to be payable in arrears on each Payment Date (the “
LC Fee ”). The Borrower shall also pay to the LC
Issuer for its own account (x) at the time of issuance of each
Facility LC, a fronting fee of 0.250% per annum of the face
amount of the Facility LC payable quarterly in arrears, and
(y) documentary and processing charges in connection with the
issuance or Modification of and draws under Facility LCs in
accordance with the LC Issuer’s standard schedule for such
charges as in effect from time to time.”
5. Amendment to Section 6.20
of the Credit Agreement . Section 6.20 of the Credit
Agreement is hereby amended by deleting the word “and”
following the semicolon at the end of Section 6.20(h), by
substituting a semicolon followed by the word “and” in
lieu of the period at the end of Section 6.20(i) and inserting
a new Section 6.20(j) to read as follows:
“(j) Investments as
consideration in exchange for the sale by the Borrower of one
terminal located at ROA Hook Road, Peekskill, NY and the following
storage facilities located at 12 Colonial Road, Canton, CT, 65
Maple Avenue, Chester, NY, 108 W. Main Street, Clinton, NJ, 15
Richboynton Road, Dover, NJ, Route 23, Hamburg, NY, 3020 Burns
Avenue, Wantaugh, NY, 8301 Lansdowne Avenue, Upper Darby, PA, 2579
South County Trail, East Greenwich, RI pursuant to
Section 6.19(d) consisting of promissory notes issued by the
buyer thereof pursuant to a purchase agreement between the Borrower
and such buyer on terms and conditions reasonably acceptable to the
Agent.”
6. Amendment to Subsection
6.25(a) of the Credit Agreement . Subsection 6.25(a) of the
Credit Agreement is hereby amended by deleting such Section in its
entirety and substituting in lieu thereof the following:
“(a) No Loan Party shall,
directly or indirectly, voluntarily purchase, redeem, defease or
prepay any principal of, premium, if any, interest or other amount
payable in respect of any Indebtedness prior to its scheduled
maturity, other than (i) the Obligations;
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