EXHIBIT 10(f)
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SUBSIDIARY GUARANTY AGREEMENT
Dated as of July 1, 2002
Re: $42,500,000 7.37% Senior Notes due June 30, 2012
of
Suburban Propane, L.P.
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TABLE OF CONTENTS
(Not a part of the Agreement)
SECTION HEADING PAGE
Parties....................................................................1
Recitals...................................................................1
SECTION 1. DEFINITIONS..................................................2
SECTION 2. GUARANTY OF NOTES AND NOTE PURCHASE AGREEMENTS...............2
SECTION 3. GUARANTY OF PAYMENT AND PERFORMANCE..........................2
SECTION 4. GENERAL PROVISIONS RELATING TO THE GUARANTY..................3
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE GUARANTORS.............8
SECTION 6. GUARANTOR COVENANTS..........................................9
SECTION 7. PAYMENTS FREE AND CLEAR OF TAXES.............................9
SECTION 8. GOVERNING LAW................................................10
SECTION 9. JUDGMENTS....................................................10
SECTION 10. AMENDMENTS, WAIVERS AND CONSENTS.............................11
SECTION 11. NOTICES......................................................12
SECTION 12. MISCELLANEOUS................................................12
SECTION 13. INDEMNITY....................................................13
Signature..................................................................14
-i-
SUBSIDIARY GUARANTY AGREEMENT
Re: $42,500,000 7.37% Senior Notes due June 30, 2012
This SUBSIDIARY GUARANTY AGREEMENT dated as of July 1, 2002 (the or this
"GUARANTY") is entered into on a joint and several basis by each of the
undersigned, together with any entity which may become a party hereto by
execution and delivery of a Subsidiary Guaranty Supplement in substantially the
form set forth as EXHIBIT A hereto (a "GUARANTY SUPPLEMENT") (which parties are
hereinafter referred to individually as a "GUARANTOR" and collectively as the
"GUARANTORS").
RECITALS
A. Each Guarantor is a subsidiary of SUBURBAN PROPANE, L.P., a Delaware
limited partnership (the "COMPANY").
B. In order to refinance certain Indebtedness, the Company has entered into
those certain Note Purchase Agreements dated as of April 19, 2002 (the "NOTE
PURCHASE AGREEMENTS") between the Company and each of the purchasers named on
Schedule A thereto (the "INITIAL NOTE PURCHASERS"; the Initial Note Purchasers,
together with their successors, assigns or any other future holder of the Notes
(as defined below), the "HOLDERS"), providing for, INTER ALIA, the issue and
sale by the Company to the Initial Note Purchasers of $42,500,000 7.37% Senior
Notes due June 30, 2012 (the "NOTES").
C. The Initial Note Purchasers have required as a condition to their
purchase of the Notes that the Company cause each of the undersigned to enter
into this Guaranty and to cause each Subsidiary (as defined in the Note Purchase
Agreements) that after the date hereof delivers a guaranty pursuant to the Bank
Credit Agreement (as defined in the Note Purchase Agreements) to enter into a
Guaranty Supplement, in each case as security for the Notes, and the Company has
agreed to cause each of the undersigned to execute this Guaranty and to cause
such Subsidiaries to execute a Guaranty Supplement, in each case in order to
induce the Initial Note Purchasers to purchase the Notes and thereby benefit the
Company and its Subsidiaries by providing funds to finance acquisitions and for
general corporate purposes.
D. Each of the Guarantors will derive substantial direct and indirect
benefit from the sale of the Notes to the Initial Note Purchasers.
NOW, THEREFORE, as required by Section 4.10 of the Note Purchase Agreements
and in consideration of the premises and other good and valuable consideration,
the receipt and sufficiency whereof are hereby acknowledged, each Guarantor does
hereby covenant and agree, jointly and severally, as follows:
SECTION 1. DEFINITIONS.
Capitalized terms used herein shall have the meanings set forth in the
Note Purchase Agreements unless herein defined or the context shall otherwise
require.
SECTION 2. GUARANTY OF NOTES AND NOTE PURCHASE AGREEMENTS.
(a) Each Guarantor jointly and severally does hereby irrevocably,
absolutely and unconditionally guarantee unto the Holders: (1) the full and
prompt payment of the principal of, premium, if any, and interest on the Notes
from time to time outstanding, as and when such payments shall become due and
payable whether by lapse of time, upon redemption or prepayment, by extension or
by acceleration or declaration or otherwise (including (to the extent legally
enforceable) interest due on overdue payments of principal, premium, if any, or
interest at the rate set forth in the Notes) in Federal or other immediately
available funds of the United States of America which at the time of payment or
demand therefor shall be legal tender for the payment of public and private
debts, (2) the full and prompt performance and observance by the Company of each
and all of the obligations, covenants and agreements required to be performed or
owed by the Company under the terms of the Notes and the Note Purchase
Agreements and (3) the full and prompt payment, upon demand by any Holder of all
costs and expenses, legal or otherwise (including reasonable attorneys' fees),
if any, as shall have been expended or incurred in the enforcement of any
rights, privileges or liabilities in favor of the Holders under or in respect of
the Notes, the Note Purchase Agreements or under this Guaranty or in any
consultation or action in connection therewith or herewith.
(b) The liability of each Guarantor under this Guaranty shall not exceed an
amount equal to a maximum amount as will, after giving effect to such maximum
amount and all other liabilities of such Guarantor, contingent or otherwise,
result in the obligations of such Guarantor hereunder not constituting a
fraudulent transfer, obligation or conveyance.
SECTION 3. GUARANTY OF PAYMENT AND PERFORMANCE.
This is a guarantee of payment and performance and each Guarantor hereby
waives, to the fullest extent permitted by law, any right to require that any
action on or in respect of any Note or the Note Purchase Agreements be brought
against the Company or any other Person or that resort be had to any direct or
indirect security for the Notes or for this Guaranty or any other remedy. Any
Holder may, at its option, proceed hereunder against any Guarantor in the first
instance to collect monies when due, the payment of which is guaranteed hereby,
without first proceeding against the Company or any other Person and without
first resorting to any direct or indirect security for the Notes or for this
Guaranty or any other remedy. The liability of each Guarantor hereunder shall in
no way be affected or impaired by any acceptance by any Holder of any direct or
indirect security for, or other guaranties of, any Indebtedness, liability or
obligation of the Company or any other Person to any Holder or by any failure,
delay, neglect or omission by any Holder to realize upon or protect any such
guarantees, Indebtedness, liability or obligation or any notes or other
instruments evidencing the same or any direct or indirect security therefor or
by any approval, consent, waiver, or other action taken, or omitted to be taken
by any such Holder.
The covenants and agreements on the part of the Guarantors herein contained
shall take effect as joint and several covenants and agreements, and references
to the Guarantors shall take effect as references to each of them and none of
them shall be released from liability hereunder by reason of the guarantee
ceasing to be binding as a continuing security on any other of them.
SECTION 4. GENERAL PROVISIONS RELATING TO THE GUARANTY.
(a) Each Guarantor hereby consents and agrees that any Holder or Holders
from time to time, with or without any further notice to or assent from any
other Guarantor may, without in any manner affecting the liability of any
Guarantor under this Guaranty, and upon such terms and conditions as any such
Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise), modify,
change, compromise, release or extend the duration of the time for the
performance or payment of any Indebtedness, liability or obligation of the
Company or of any other Person secondarily or otherwise liable for any
Indebtedness, liability or obligations of the Company on the Notes, or
waive any Default with respect thereto, or waive, modify, amend or change
any provision of any other agreement or waive this Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or substitute
any and all property, of any nature and from whomsoever received, held by,
or for the benefit of, any such Holder as direct or indirect security for
the payment or performance of any Indebtedness, liability or obligation of
the Company or of any other Person secondarily or otherwise liable for any
Indebtedness, liability or obligation of the Company on the Notes; or
(3) settle, adjust or compromise any claim of the Company against any
other Person secondarily or otherwise liable for any Indebtedness,
liability or obligation of the Company on the Notes.
Each Guarantor hereby ratifies and confirms any such extension, renewal,
change, sale, release, waiver, surrender, exchange, modification, amendment,
impairment, substitution, settlement, adjustment or compromise and that the same
shall be binding upon it, and hereby waives, to the fullest extent permitted by
law, any and all defenses, counterclaims or offsets which it might or could have
by reason thereof, it being understood that such Guarantor shall at all times be
bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted by law:
(1) notice of acceptance of this Guaranty by the Holders or of the
creation, renewal or accrual of any liability of the Company, present or
future, or of the reliance of such Holders upon this Guaranty (it being
understood that every Indebtedness, liability and obligation described in
SECTION 2 hereof shall conclusively be presumed to have been created,
contracted or incurred in reliance upon the execution of this Guaranty);
(2) demand of payment by any Holder from the Company or any other
Person indebted in any manner on or for any of the Indebtedness,
liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any other Person of
the Notes or any other instrument, protest thereof and notice of its
dishonor to any party thereto and to such Guarantor.
The obligations of each Guarantor under this Guaranty and the rights of any
Holder to enforce such obligations by any proceedings, whether by action at law,
suit in equity or otherwise, shall not be subject to any reduction, limitation,
impairment or termination, whether by reason of any claim of any character
whatsoever or otherwise and shall not be subject to any defense, set-off,
counterclaim (other than any compulsory counterclaim), recoupment or termination
whatsoever.
(c) The obligations of the Guarantors hereunder shall be binding upon the
Guarantors and their successors and assigns, and shall remain in full force and
effect irrespective of:
(1) the genuineness, validity, regularity or enforceability of the
Notes, the Note Purchase Agreements or any other agreement or any of the
terms of any thereof, the continuance of any obligation on the part of the
Company or any other Person on or in respect of the Notes or under the Note
Purchase Agreements or any other agreement or the power or authority or the
lack of power or authority of the Company to issue the Notes or the Company
to execute and deliver the Note Purchase Agreements or any other agreement
or of any Guarantor to execute and deliver this Guaranty or to perform any
of its obligations hereunder or the existence or continuance of the Company
or any other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise, in the
performance by the Company, any Guarantor or any other Person of any
obligations of any kind or character whatsoever under the Notes, the Note
Purchase Agreements, this Guaranty or any other agreement; or
(3) any creditors' rights, bankruptcy, receivership or other
insolvency proceeding of the Company, any Guarantor or any other Person or
in respect of the property of the Company, any Guarantor or any other
Person or any merger, consolidation, reorganization, dissolution,
liquidation, the sale of all or substantially all of the assets of or
winding up of the Company, any Guarantor or any other Person; or
(4) impossibility or illegality of performance on the part of the
Company, any Guarantor or any other Person of its obligations under the
Notes, the Note Purchase Agreements, this Guaranty or any other agreements;
or
(5) in respect of the Company or any other Person, any change of
circumstances, whether or not foreseen or foreseeable, whether or not
imputable to the Company or any other Person, or other impossibility of
performance through fire, explosion, accident, labor disturbance, floods,
droughts, embargoes, wars (whether or not declared), civil commotion, acts
of God or the public enemy, delays or failure of suppliers or carriers,
inability to obtain materials, action of any Federal or state regulatory
body or agency, change of law or any other causes affecting performance, or
any other FORCE MAJEURE, whether or not beyond the control of the Company
or any other Person and whether or not of the kind hereinbefore specified;
or
(6) any attachment, claim, demand, charge, Lien, order, process,
encumbrance or any other happening or event or reason, similar or
dissimilar to the foregoing, or any withholding or diminution at the
source, by reason of any taxes, assessments, expenses, Indebtedness,
obligations or liabilities of any character, foreseen or unforeseen, and
whether or not valid, incurred by or against the Company, any Guarantor or
any other Person or any claims, demands, charges or Liens of any nature,
foreseen or unforeseen, incurred by the Company, any Guarantor or any other
Person, or against any sums payable in respect of the Notes or under the
Note Purchase Agreements or this Guaranty, so that such sums would be
rendered inadequate or would be unavailable to make the payments herein
provided; or
(7) any order, judgment, decree, ruling or regulation (whether or not
valid) of any court of any nation or of any political subdivision thereof
or any body, agency, department, official or administrative or regulatory
agency of any thereof or any other action, happening, event or reason
whatsoever which shall delay, interfere with, hinder or prevent, or in any
way adversely affect, the performance by the Company, any Guarantor or any
other Person of its respective obligations under or in respect of the
Notes, the Note Purchase Agreements, this Guaranty or any other agreement;
or
(8) the failure of any Guarantor to receive any benefit from or as a
result of its execution, delivery and performance of this Guaranty; or
(9) any failure or lack of diligence in collection or protection,
failure in presentment or demand for payment, protest, notice of protest,
notice of default and of nonpayment, any failure to give notice to any
Guarantor of failure of the Company, any Guarantor or any other Person to
keep and perform any obligation, covenant or agreement under the terms of
the Notes, the Note Purchase Agreements, this Guaranty or any other
agreement or failure to resort for payment to the Company, any Guarantor or
to any other Person or to any other guaranty or to any property, security,
Liens or other rights or remedies; or
(10) the acceptance of any additional security or other guaranty, the
advance of additional money to the Company or any other Person, the renewal
or extension of the Notes or amendments, modifications, consents or waivers
with respect to the Notes, the Note Purchase Agreements or any other
agreement, or the sale, release, substitution or exchange of any security
for the Notes; or
(11) any merger or consolidation of the Company, any Guarantor or any
other Person into or with any other Person or any sale, lease, transfer or
other disposition of any of the assets of the Company, any Guarantor or any
other Person to any other Person, or any change in the ownership of any
shares of the Company, any Guarantor or any other Person; or
(12) any defense whatsoever that: (i) the Company or any other Person
might have to the payment of the Notes (principal, premium, if any, or
interest), other than payment thereof in Federal or other immediately
available funds, or (ii) the Company or any other Person might have to the
performance or observance of any of the provisions of the Notes, the Note
Purchase Agreements or any other agreement, whether through the
satisfaction or purported satisfaction by the Company or any other Person
of its debts due to any cause such as bankruptcy, insolvency, receivership,
merger, consolidation, reorganization, dissolution, liquidation, winding-up
or otherwise, other than the defense of indefeasible payment in full in
cash of the Notes; or
(13) any act or failure to act with regard to the Notes, the Note
Purchase Agreements, this Guaranty or any other agreement or anything which
might vary the risk of any Guarantor or any other Person; or
(14) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, any Guarantor or any other Person in
respect of the obligations of any Guarantor or other Person under this
Guaranty or any other agreement, other than the defense of indefeasible
payment in full in cash of the Notes;
PROVIDED that the specific enumeration of the above-mentioned acts, failures or
omissions shall not be deemed to exclude any other acts, failures or omissions,
though not specifically mentioned above, it being the purpose and intent of this
Guaranty and the parties hereto that the obligations of each Guarantor shall be
absolute and unconditional and shall not be discharged, impaired or varied
except by the payment of the principal of, premium, if any, and interest on the
Notes in accordance with their respective terms whenever the same shall become
due and payable as in the Notes provided, at the place specified in and all in
the manner and with the effect provided in the Notes and the Note Purchase
Agreements, as each may be amended or modified from time to time. Without
limiting the foregoing, it is understood that repeated and successive demands
may be made and recoveries may be had hereunder as and when, from time to time,
the Company shall default under or in respect of the terms of the Notes or the
Note Purchase Agreements and that notwithstanding recovery hereunder for or in
respect of any given default or defaults by the Company under the Notes or the
Note Purchase Agreements, this Guaranty shall remain in full force and effect
and shall apply to each and every subsequent default.
(d) All rights of any Holder may be transferred or assigned at any time and
shall be considered to be transferred or assigned at any time or from time to
time upon the transfer of such Note whether with or without the consent of or
notice to the Guarantors under this Guaranty or to the Company.
(e) To the extent of any payments made under this Guaranty, the Guarantors
shall be subrogated to the rights of the Holder or Holders upon whose Notes such
payment was made, but each Guarantor covenants and agrees that such right of
subrogation shall be junior and subordinate in right of payment to the prior
indefeasible final payment in cash in full of all amounts due and owing by the
Company with respect to the Notes and the Note Purchase Agreements and by the
Guarantors under this Guaranty, and the Guarantors shall not take any action to
enforce such right of subrogation, and the Guarantors shall not accept any
payment in respect of such right of subrogation, until all amounts due and owing
by the Company under or in respect of the Notes and the Note Purchase Agreements
and all amounts due and owing by the Guarantors hereunder have indefeasibly been
finally paid in cash in full. If any amount shall be paid to any Guarantor in
violation of the preceding sentence at any time prior to the indefeasible
payment in cash in full of the Notes and all other amounts payable under the
Notes, the Note Purchase Agreements and this Guaranty, such amount shall be held
in trust for the benefit of the Holders and shall forthwith be paid to the
Holders to be credited and applied to the amounts due or to become due with
respect to the Notes and all other amounts payable under the Note Purchase
Agreements and this Guaranty, whether matured or unmatured.
(f) To the extent of any payments made under this Guaranty, each Guarantor
making such payment shall have a right of contribution from the other
Guarantors, but such Guarantor covenants and agrees that such right of
contribution shall be subordinate in right of payment to the rights of the
Holders for which full payment has not been made or provided for and, to that
end, such Guarantor agrees not to claim or enforce any such right of
contribution unless and until all of the Notes and all other sums due and
payable under the Note Purchase Agreements have been fully and irrevocably paid
and discharged.
(g) Each Guarantor agrees that to the extent the Company or any other
Person makes any payment on any Note, which payment or any part thereof is
subsequently invalidated, voided, declared to be fraudulent or preferential, set
aside, recovered, rescinded or is required to be retained by or repaid to a
trustee, receiver, or any other Person under any bankruptcy code, common law, or
equitable cause, then and to the extent of such payment, the obligation or the
part thereof intended to be satisfied shall be revived and continued in full
force and effect with respect to the Guarantors' obligations hereunder, as if
said payment had not been made. The liability of the Guarantors hereunder shall
not be reduced or discharged, in whole or in part, by any payment to any Holder
from any source that is thereafter paid, returned or refunded in whole or in
part by reason of the assertion of a claim of any kind relating thereto,
including, but not limited to, any claim for breach of contract, breach of
warranty, preference, illegality, invalidity, or fraud asserted by any account
debtor or by any other Person.
(h) No Holder shall be under any obligation: (1) to marshal any assets in
favor of the Guarantors or in payment of any or all of the liabilities of the
Company under or in respect of the Notes or the obligations of the Guarantors
hereunder or (2) to pursue any other remedy that the Guarantors may or may not
be able to pursue themselves and that may lighten the Guarantors' burden, any
right to which each Guarantor hereby expressly waives.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE GUARANTORS.
Each Guarantor represents and warrants to each Holder that:
(a) Such Guarantor is a corporation or other legal entity duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization, and is duly qualified as a foreign corporation or other legal
entity and is in good standing in each jurisdiction in which such qualification
is required by law, other than those jurisdictions as to which the failure to be
so qualified or in good standing would not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on (1) the business,
operations, affairs, financial condition, assets or properties of such Guarantor
and its subsidiaries, taken as a whole, or (2) the ability of such Guarantor to
perform its obligations under this Guaranty, or (3) the validity or
enforceability of this Guaranty (herein in this SECTION 5, a "MATERIAL ADVERSE
EFFECT"). Such Guarantor has the power and authority to own or hold under lease
the properties it purports to own or hold under lease, to transact the business
it transacts and proposes to transact, to execute and deliver this Guaranty and
to perform the provisions hereof.
(b) This Guaranty has been duly authorized by all necessary action on the
part of such Guarantor, and this Guaranty constitutes a legal, valid and binding
obligation of such Guarantor enforceable against such Guarantor in accordance
with its terms, except as such enforceability may be limited by (1) applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and (2) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(c) The execution, delivery and performance by such Guarantor of this
Guaranty will not (1) contravene, result in any breach of, or constitute a
default under, or result in the creation of any Lien in respect of any property
of such Guarantor or any of its subsidiaries under any indenture, mortgage, deed
of trust, loan, purchase or credit agreement, lease, charter document or by-law,
or any other agreement or instrument to which such Guarantor or any of its
subsidiaries is bound or by which such Guarantor or any of its subsidiaries or
any of their respective properties may be bound or affected, (2) conflict with
or result in a breach of any of the terms, conditions or provisions of any
order, judgment, decree, or ruling of any court, arbitrator or Governmental
Authority applicable to such Guarantor or any of its subsidiaries or (3) violate
any provision of any statute or other rule or regulation of any Governmental
Authority applicable to the such Guarantor or any of its subsidiaries.
(d) No consent, approval or authorization of, or registration, filing or
declaration with, any Governmental Authority is required in connection with the
execution, delivery or performance by such Guarantor of this Guaranty.
(e) Such Guarantor is solvent, has capital not unreasonably small in
relation to its business or any contemplated or undertaken transaction and has
assets having a value both at fair valuation and at present fair salable value
greater than the amount required to pay its debts as they become due and greater
than the amount that will be required to pay its probable liability on its
existing debts as they become absolute and matured. Such Guarantor does not
intend to incur, or believe or should have believed that it will incur, debts
beyond its ability to pay such debts as they become due. Such Guarantor will not
be rendered insolvent by the execution and delivery of, and performance of its
obligations under, this Guaranty. Such Guarantor does not intend to hinder,
delay or defraud its creditors by or through the execution and delivery of, or
performance of its obligations under, this Guaranty.
SECTION 6. GUARANTOR COVENANTS.
From and after the date of issuance of the Notes by the Company and
continuing so long as any amount remains unpaid thereon each Guarantor agrees to
comply with the terms and provisions of Sections 9.1, 9.2, 9.3, 9.4 and 9.5 of
the Note Purchase Agreements, insofar as such provisions apply to such
Guarantor, as if said Sections were set forth herein in full.
SECTION 7. PAYMENTS FREE AND CLEAR OF TAXES.
Each payment by any Guarantor shall be made, under all circumstances,
without setoff, counterclaim or reduction for, and free from and clear of, and
without deduction for or because of, any and all present or future taxes,
levies, imposts, duties, fees, charges, deductions, withholding, restrictions or
conditions of any nature whatsoever (hereinafter called "RELEVANT TAXES")
imposed, levied, collected, assessed, deducted or withheld by the government of
any country or jurisdiction (or any authority therein or thereof) other than the
United States of America from or through which payments hereunder or on or in
respect of the Notes are actually made (each a "TAXING JURISDICTION"), unless
such imposition, levy, collection, assessment, deduction, withholding or other
restriction or condition is required by law. If a Guarantor is required by law
to make any payment under this Guaranty subject to such deduction, withholding
or other restriction or condition, then such Guarantor shall forthwith (i) pay
over to the government or taxing authority imposing such tax the full amount
required to be deducted, withheld from or otherwise paid by such Guarantor
(including the full amount required to be deducted or withheld from or otherwise
paid by such Guarantor in respect of the Tax Indemnity Amounts (as defined
below)); (ii) pay each Holder such additional amounts ("TAX INDEMNITY AMOUNTS")
as may be necessary in order that the net amount of every payment made to each
Holder, after provision for payment of such Relevant Taxes (including any
required deduction, withholding or other payment of tax on or with respect to
such Tax Indemnity Amounts), shall be equal to the amount which such holder
would have received had there been no imposition, levy, collection, assessment,
deduction, withholding or other restriction or condition. Notwithstanding the
provisions of this SECTION 7, no such Tax Indemnity Amounts shall be payable for
or on account of any tax, assessment or other governmental charge that is
imposed or withheld by reason of the failure of the Holder to complete, execute
and deliver to such Guarantor any form or document to the extent applicable to
such Holder that may be required by law or by reason of administration of such
law and which is reasonably requested in writing to be delivered by such
Guarantor in order to enable such Guarantor to make payments pursuant to this
SECTION 7 without deduction or withholding for taxes, assessments or
governmental charges, or with deduction or withholding of such lesser amount,
which form or document shall be delivered within one hundred twenty days of a
written request therefor by such Guarantor. If in connection with the payment of
any such Tax Indemnity Amounts, any Holder that is a United States person within
the meaning of the Code or a foreign person engaged in a trade or business
within the United States of America, incurs taxes imposed by the United States
of America or any political subdivision or taxing authority therein ("UNITED
STATES TAXES") on such Tax Indemnity Amounts, such Guarantor shall pay to such
Holder such further amount as will insure that the net amount actually received
by that Holder (taking into account any withholding or deduction in respect of
any such further amount) is equal to the amount which such Holder would have
received after all United States Taxes on such Tax Indemnity Amounts and on any
further amount had such withholding or deduction not been made.
SECTION 8. GOVERNING LAW.
(A) THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK APPLICABLE THEREIN.
(b) Each Guarantor hereby (i) irrevocably submits and consents to the
jurisdiction of the federal court located within the County of New York, State
of New York (or if such court lacks jurisdiction, the State courts located
therein), and irrevocably agrees that all actions or proceedings relating to
this Guaranty may be litigated in such courts, and (ii) waives any objection
which it may have based on improper venue or FORUM NON CONVENIENS to the conduct
of any proceeding in any such court and waives personal service of any and all
process upon it, and (iii) consents that all such service of process be made by
delivery to it at the address of such Person set forth in SECTION 11 below and
that service so made shall be deemed to be completed upon actual receipt.
Nothing contained in this section shall affect the right of any Holder to serve
legal process in any other manner permitted by law or to bring any action or
proceeding in the courts of any jurisdiction against a Guarantor or to enforce a
judgment obtained in the courts of any other jurisdiction.
(c) The parties hereto waive any right to have a jury participate in
resolving any dispute, whether sounding in contract, tort, or otherwise, between
them arising out of, connected with, related to or incidental to the
relationship established between them in connection with this Guaranty, any
financing agreement, any loan party document or any other instrument, document
or agreement executed or delivered in connection herewith or the transactions
related hereto. The parties hereto hereby agree and consent that any such claim,
demand, action or cause of action shall be decided by court trial without a jury
and that any of them may file an original counterpart or a copy of this Guaranty
with any court as written evidence of the consent of the parties hereto to the
waiver of their right to trial by jury.
SECTION 9. JUDGMENTS.
Any payment made by a Guarantor to any Holder for the account of any such
holder in respect of any amount payable by such Guarantor shall be made in the
lawful currency of the United States of America ("U.S. DOLLARS"). Any amount
received or recovered by such holder other than in U.S. Dollars (whether as a
result of, or of the enforcement of, a judgment or order of any court, or in the
liquidation or dissolution of such Guarantor or otherwise) in respect of any
such sum expressed to be due hereunder or under the Notes shall constitute a
discharge of such Guarantor only to the extent of the amount of U.S. Dollars
which such Holder is able, in accordance with normal banking procedures, to
purchase with the amount so received or recovered in that other currency on the
date of the receipt or recovery (or, if it is not practicable to make that
purchase on such date, on the first date on which it is practicable to do so).
If the amount of U.S. Dollars so purchased is less than the amount of U.S.
Dollars expressed to be due hereunder or under the Notes, the Company shall
indemnify such Holder against any loss sustained by such holder as a result, and
in any event, such Guarantor shall indemnify such holder against the cost of
making any such purchase. These indemnities shall constitute a separate and
independent obligation from the other obligations herein, shall give rise to a
separate and independent cause of action, shall apply irrespective of any
indulgence granted by any such holder, shall continue in full force and effect
despite any judgment, order, claim or proof for a liquidated amount in respect
of any such sum due hereunder or any judgment or order and shall survive the
payment of the Notes and the termination of this Guaranty.
SECTION 10. AMENDMENTS, WAIVERS AND CONSENTS.
(a) This Guaranty may be amended, and the observance of any term hereof may
be waived (either retroactively or prospectively), with (and only with) the
written consent of each Guarantor and the Required Holders.
(b) The Guarantors will provide each Holder (irrespective of the amount of
Notes then owned by it) with sufficient information, sufficiently far in advance
of the date a decision is required, to enable such Holder to make an informed
and considered decision with respect to any proposed amendment, waiver or
consent in respect of any of the provisions hereof. The Guarantors will deliver
executed or true and correct copies of each amendment, waiver or consent
effected pursuant to the provisions of this SECTION 10 to each Holder promptly
following the date on which it is executed and delivered by, or receives the
consent or approval of, the requisite Holders.
(c) The Company will not directly or indirectly pay or cause to be paid any
remuneration, whether by way of fee or otherwise, or grant any security, to any
Holder as consideration for or as an inducement to the entering into by any
Holder of any waiver or amendment of any of the terms and provisions hereof
unless such remuneration is concurrently paid, or security is concurrently
granted, on the same terms, ratably to each Holder even if such Holder did not
consent to such waiver or amendment.
(d) Any amendment or waiver consented to as provided in this SECTION 10
applies equally to all Holders and is binding upon them and upon each future
holder and upon the Guarantors. No such amendment or waiver will extend to or
affect any obligation, covenant or agreement not expressly amended or waived or
impair any right consequent thereon. No course of dealing between the Guarantors
and any Holder nor any delay in exercising any rights hereunder shall operate as
a waiver of any rights of any Holder. As used herein, the term "this Guaranty"
and references thereto shall mean this Guaranty as it may from time to time be
amended or supplemented.
(e) Solely for the purpose of determining whether the Holders of the
requisite percentage of the aggregate principal amount of Notes then outstanding
approved or consented to any amendment, waiver or consent to be given under this
Guaranty, Notes directly or indirectly owned by any Guarantor, the Company or
any of their respective subsidiaries or Affiliates shall be deemed not to be
outstanding.
SECTION 11. NOTICES.
All notices and communications provided for hereunder shall be in writing
and sent (a) by telefacsimile if the sender on the same day sends a confirming
copy of such notice by a recognized overnight delivery service (charges
prepaid), or (b) by registered or certified mail with return receipt requested
(postage prepaid), or (c) by a recognized overnight delivery service (with
charges prepaid). Any such notice must be sent:
(1) if to an Initial Note Purchaser or such Initial Note Purchaser's
nominee, to such Initial Note Purchaser or such Initial Note Purchaser's
nominee at the address specified for such communications in Schedule A to
the Note Purchase Agreements, or at such other address as such Initial Note
Purchaser or such Initial Note Purchaser's nominee shall have specified to
any Guarantor or the Company in writing,
(2) if to any other Holder, to such Holder at such address as such
Holder shall have specified to any Guarantor or the Company in writing, or
(3) if to any Guarantor, to such Guarantor c/o the Company at its
address set forth at the beginning of the Note Purchase Agreements to the
attention of Chief Financial Officer, or at such other address as such
Guarantor shall have specified to the Holders in writing.
Notices under this SECTION 11 will be deemed given only when actually received.
SECTION 12. MISCELLANEOUS.
(a) No remedy herein conferred upon or reserved to any Holder is intended
to be exclusive of any other available remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy
given under this Guaranty now or hereafter existing at law or in equity. No
delay or omission to exercise any right or power accruing upon any default,
omission or failure of performance hereunder shall impair any such right or
power or shall be construed to be a waiver thereof but any such right or power
may be exercised from time to time and as often as may be deemed expedient. In
order to entitle any Holder to exercise any remedy reserved to it under the
Guaranty, it shall not be necessary for such Holder to physically produce its
Note in any proceedings instituted by it or to give any notice, other than such
notice as may be herein expressly required.
(b) The Guarantors will pay all sums becoming due under this Guaranty by
the method and at the address specified in the Note Purchase Agreements, or by
such other method or at such other address as any Holder shall have from time to
time specified to the Guarantors in writing for such purpose, without the
presentation or surrender of this Guaranty or any Note.
(c) Any provision of this Guaranty that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
(d) If the whole or any part of this Guaranty shall be now or hereafter
become unenforceable against any one or more of the Guarantors for any reason
whatsoever or if it is not executed by any one or more of the Guarantors, this
Guaranty shall nevertheless be and remain fully binding upon and enforceable
against each other Guarantor as if it had been made and delivered only by such
other Guarantors.
(e) This Guaranty shall be binding upon each Guarantor and its successors
and assigns and shall inure to the benefit of each Holder and its successors and
assigns so long as its Notes remain outstanding and unpaid.
(f) This Guaranty may be executed in any number of counterparts, each of
which shall be an original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
SECTION 13. INDEMNITY
To the fullest extent of applicable law, each Guarantor shall indemnify and
save each Holder harmless from and against any losses which may arise by virtue
of any of the obligations hereby guaranteed being or becoming for any reason
whatsoever in whole or in part void, voidable, contrary to law, invalid,
ineffective or otherwise unenforceable by the Holder or any of them in
accordance with its terms (all of the foregoing collectively, an "INDEMNIFIABLE
CIRCUMSTANCE"). For greater certainty, these losses shall include without
limitation all obligations hereby guaranteed which would have been payable by
the Company but for the existence of an Indemnifiable Circumstance, net of any
withholding or deduction of or on account of any Relevant Tax in accordance with
SECTION 7 hereof; PROVIDED, HOWEVER, that the extent of the Guarantor's
aggregate liability under this SECTION 13 shall not at any time exceed the
amount (but for any Indemnifiable Circumstance) otherwise guaranteed pursuant to
SECTION 2.
[Intentionally Blank]
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly
executed by an authorized representative as of this 1st day of July, 2002.
PLATEAU, INC.
XXXXXX, INC.
SUBURBAN PROPANE GAS CORPORATION
VANGAS, INC.
GAS CONNECTION, INC.
SUBURBAN @ HOME, INC.
SUBURBAN HOLDINGS, INC.
SUBURBAN FRANCHISING, INC.
SUBURBAN @ HOME HOLDINGS, INC.
SUBURBAN PLUMBING NEW JERSEY LLC
By: /S/ XXXX X. XXXXXXXXX
---------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chief Executive Officer
Accepted and Agreed:
SUBURBAN PROPANE, L.P.
By: /S/ XXXX X. XXXXXXXXX
---------------------
Name: Xxxx X. Xxxxxxxxx
Title: President and Chief
Executive Officer
SUBSIDIARY GUARANTY SUPPLEMENT
To the Holders of the Notes (as hereinafter
defined) of SUBURBAN PROPANE, L.P.
(the "COMPANY")
Ladies and Gentlemen:
WHEREAS, in order to refinance certain debt and for general partnership
purposes, the Company issued $42,500,000 7.37% Senior Notes due June 30, 2012
(the "NOTES") pursuant to those certain Note Purchase Agreements dated as of
April 19, 2002 (the "NOTE PURCHASE AGREEMENTS") between the Company and each of
the purchasers named on Schedule A thereto (the "INITIAL NOTE PURCHASERS").
WHEREAS, as a condition precedent to their purchase of the Notes, the
Initial Note Purchasers required that certain subsidiaries of the Company enter
into a Subsidiary Guaranty Agreement as security for the Notes (the "SUBSIDIARY
GUARANTY").
Pursuant to Section 9.8 of the Note Purchase Agreements, the Company has
agreed to cause the undersigned, ______________, a ______________ organized
under the laws of _______________ (the "ADDITIONAL GUARANTOR"), to join in the
Subsidiary Guaranty. In accordance with the requirements of the Subsidiary
Guaranty, the Additional Guarantor desires to amend the definition of Guarantor
(as the same may have been heretofore amended) set forth in the Subsidiary
Guaranty attached hereto so that at all times from and after the date hereof,
the Additional Guarantor shall be jointly and severally liable as set forth in
the Subsidiary Guaranty for the obligations of the Company under the Note
Purchase Agreements and Notes to the extent and in the manner set forth in the
Subsidiary Guaranty.
The undersigned is the duly elected ______________ of the Additional
Guarantor, a subsidiary of the Company, and is duly authorized to execute and
deliver this Guaranty Supplement to each of you. The execution by the
undersigned of this Guaranty Supplement shall evidence its consent to and
acknowledgment and approval of the terms set forth herein and in the Subsidiary
Guaranty and by such execution the Additional Guarantor shall be deemed to have
made in favor of the Holders the representations and warranties set forth in
Section 5 of the Subsidiary Guaranty.
Upon execution of this Subsidiary Guaranty Supplement, the Subsidiary
Guaranty shall be deemed to be amended as set forth above. Except as amended
herein, the terms and provisions of the Subsidiary Guaranty are hereby ratified,
confirmed and approved in all respects.
EXHIBIT A
(to Subsidiary Guaranty Agreement)
Any and all notices, requests, certificates and other instruments
(including the Notes) may refer to the Subsidiary Guaranty without making
specific reference to this Subsidiary Guaranty Supplement, but nevertheless all
such references shall be deemed to include this Subsidiary Guaranty Supplement
unless the context shall otherwise require.
Dated: _________________, _____.
[NAME OF ADDITIONAL GUARANTOR]
By
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Its
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