Exhibit 10.1
AMENDMENT NO. 1 TO NOTE AGREEMENT AND LIMITED CONSENT
Amendment No 1 to Note Agreement and Limited Consent (this
"Amendment"), dated as of June 30, 1998, among National Propane Corporation, a
Delaware corporation ("National Propane Corp."), National Propane SGP, Inc., a
Delaware corporation ("National Propane SGP"), National Propane, L.P., a
Delaware limited partnership (the "Company" and together with National Propane
Corp. and National Propane SGP, collectively "National Propane"), and the
holders (the "Holders") of the Company's 8.54% First Mortgage Notes due June 30,
2010 in the aggregate principal amount of $125,000,000, (the "Notes"), relating
to the separate Note Agreements (the "Note Agreement"), dated as of June 26,
1996, among National Propane and the purchasers of the Notes listed in the
Schedule of Purchasers attached thereto. Capitalized terms used herein without
definition shall have the respective meanings assigned thereto in the Note
Agreement.
The parties hereto have agreed, subject to the terms and conditions
hereof, to amend the Note Agreement as provided herein.
In consideration of the mutual agreements contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Amendments to Note Agreement.
(a) The first proviso in the definition of "Available
Cash" contained in Section 13 of the Note Agreement is hereby
amended to read in its entirety as follows:
"provided that Available Cash shall not include
amounts received as prepayments on the Partnership
Note other than (i) amounts scheduled to have been
received on or prior to the end of such calendar
quarter pursuant to the terms of Section 1 of the
Partnership Note or (ii) up to $6,000,000 principal
amount of the Partnership Note that is prepaid
pursuant to Section 4.1(f) of the Partnership Note;"
(b) Clause (b)(ii) of the definition of "Consolidated
Cash Flow" contained in Section 13 of the Note Agreement is
hereby amended to read in its entirety as follows:
"(ii) interest income received by the Company in
connection with the Partnership Note; provided
however, that in connection with any calculation
required pursuant to Section 10.4 with respect to the
fiscal quarters ended June 30, 1998, September 30,
1998 and December 31, 1998, respectively, interest
income actually received in cash by the Company in
connection with the Partnership Note shall be
included in such calculation."
2. Consent to Amendment of Partnership Note. The Holders of the Notes
(the "Holders") hereby consent to the amendments of the Partnership Note
effected by the Allonge Amendment attached hereto as Exhibit A.
3. Consent to Amendment of Bank Credit Facilities. To the extent
required by Section 19 of the Trust Agreement, the Holders hereby consent to the
amendments of the Bank Credit Facilities effected by the Amendment to Bank
Credit Facilities attached hereto as Exhibit B (the "Bank Amendment").
4. Representations and Warranties of the Company. The Company
represents and warrants that, as of the date hereof, (i) Triarc is not in
default in the payment of principal, interest or any other amount due and
payable on the Partnership Note and (ii) no Event of
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Default or Potential Event of Default has occurred and is continuing under the
Note Agreement. In accordance with Section 17 of the Note Agreement, the
representations and warranties contained in this Section 4 are, and shall be
considered, representations and warranties of the Company under the Note
Agreement.
5. Subordinated Unit Distributions. The Company agrees that it will not
make any Restricted Payment on account of the Subordinated Units with respect to
the fiscal quarters ending June 30, 1998, September 30, 1998 and December 31,
1998. National Propane Corp. hereby agrees that it will not, directly or
indirectly, receive or accept any Restricted Payment from the Company or
National Propane Partners, L.P. ("NPP") on account of the Subordinated Units
with respect to the fiscal quarters ending June 30, 1998, September 30, 1998 and
December 31, 1998. As used herein, "Subordinated Units" shall mean the
subordinated units representing subordinated general partner interests in NPP.
6. Conditions Precedent. This Amendment shall become effective as of
June 30, 1998, upon the satisfaction of the following conditions precedent (the
"Effective Time"):
(a) Each of the Holders, or their special counsel,
shall have received counterparts of the Bank Amendment, duly
executed and delivered by each of the parties thereto, which
Bank Amendment shall be in full force and effect.
(b) This Amendment shall have been executed by the
Borrower and the Required Holders.
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7. Continuing Effect: No Other Amendments. Except as expressly amended
hereby, all of the terms and provisions of the Note Agreement and the Notes are
and shall remain in full force and effect. The amendments contained herein shall
not constitute an amendment of any other provision of the Note Agreement or the
Notes.
8. Successors and Assigns. This Amendment shall be binding upon, inure
to the benefit of and be enforceable by the respective successors and assigns of
the parties hereto, whether so expressed or not, and, in particular, shall inure
to the benefit of and be enforceable by an holder or holders at the time of any
Notes.
9. GOVERNING LAW. THIS AMENDMENT HAS BEEN EXECUTED IN XXX XXXX XX XXX
XXXX, XXXXX XX XXX XXXX, XXXXXX XXXXXX OF AMERICA AND SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
10. Expenses. The Borrower shall pay all reasonable out-of-pocket
expenses actually incurred by the Holders in connection with the preparation,
review, negotiation, execution, delivery and enforcement of this Amendment,
including, but not limited to, the reasonable fees and disbursements of counsel.
11. Fee. At the Effective Time, the Borrower shall pay to each Holder a
fee of .1475% of the outstanding principal amount of Notes held by such Holder
on such date.
12. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall constitute an original, but all of which when
taken together
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shall constitute but one agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the date first above
written.
NATIONAL PROPANE CORPORATION
By: Xxxxxx X. Romineicki
-------------------------------
Xxxxxx X. Xxxxxxxxxx
President and Chief Operating Officer
NATIONAL PROPANE SGP, INC.,
By: Xxxxxx X. Xxxxxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxxxxx
President and Chief Operating Officer
NATIONAL PROPANE, L.P.
By: NATIONAL PROPANE CORPORATION,
its managing general partner
By: Xxxxxx X. Xxxxxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxxxxx
President and Chief Operating Officer
By: NATIONAL PROPANE SGP, INC.,
its special general partner
By: Xxxxxx X. Xxxxxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxxxxx
President and Chief Operating Officer
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CONNECTICUT GENERAL LIFE
INSURANCE COMPANY
By: CIGNA INVESTMENTS, INC.
By: Xxxxx X. Xxxxxxxxx
-------------------------------
Xxxxx X. Xxxxxxxxx
Managing Director
CONNECTICUT GENERAL LIFE
INSURANCE COMPANY, on behalf of
Separate Account 66
By: CIGNA INVESTMENTS, INC.
By: Xxxxx X. Xxxxxxxxx
-------------------------------
Xxxxx X. Xxxxxxxxx
Managing Director
LIFE INSURANCE COMPANY OF
NORTH AMERICA
By: CIGNA INVESTMENTS, INC.
By: Xxxxx X. Xxxxxxxxx
-------------------------------
Xxxxx X. Xxxxxxxxx
Managing Director
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: Xxxx X. Xxxxxxx
-------------------------------
Xxxx X. Xxxxxxx
Its Authorized Representative
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PRINCIPAL MUTUAL LIFE
INSURANCE COMPANY
By: Xxxxx Xxxxx
-------------------------------
Xxxxx Xxxxx
Counsel
By: Xxxxxxxxxxx X. Xxxxxxxxx
-------------------------------
Xxxxxxxxxxx X. Xxxxxxxxx
Counsel
KEYPORT LIFE INSURANCE COMPANY
By: XXXXX XXX & XXXXXXX,
INCORPORATED, as agent
By: Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx
Senior Vice President
GENERAL AMERICAN LIFE
INSURANCE COMPANY
By: CONNING ASSET MANAGEMENT
By: Xxxxx X. Xxxx
-------------------------------
Xxxxx X. Xxxx
Senior Vice President, Conning Asset
Management Company
TMG LIFE INSURANCE COMPANY
By: THE MUTUAL GROUP (U.S.), INC.,
its agent
By: Xxxxxxxxx X. Xxxxxx
-------------------------------
Xxxxxxxxx X. Xxxxxx
Director, Private Placements
By: Xxxxxxx X. Xxxxxx
-------------------------------
Xxxxxxx X. Xxxxxx
Senior Vice President
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SECURITY LIFE OF DENVER
INSURANCE COMPANY
By: ING INVESTMENT MANAGEMENT LLC,
its Agent
By: Xxxx X. Xxxxx
-------------------------------
Xxxx X. Xxxxx
SVP and Managing Director
MIDWESTERN UNITED LIFE
INSURANCE COMPANY
By: ING INVESTMENT MANAGEMENT LLC,
its Agent
By: Xxxx X. Xxxxx
-------------------------------
Xxxx X. Xxxxx
SVP and Managing Director
PEERLESS INSURANCE COMPANY
By: ING INVESTMENT MANAGEMENT LLC,
its Agent
By: Xxxx X. Xxxxx
-------------------------------
Xxxx X. Xxxxx
SVP and Managing Director
NORTHERN LIFE INSURANCE COMPANY
By: Xxxxx X. Xxxxxxx
-------------------------------
Xxxxx X. Xxxxxxx
Assistant Treasurer
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RELIASTAR LIFE INSURANCE COMPANY
F/K/A
NORTHWESTERN NATIONAL LIFE
INSURANCE COMPANY
By: Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx
Authorized Representative
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By: Xxxxx X. Xxxxxxxxx
------------------------------
Xxxxx X. Xxxxxxxxx
Managing Director, Private Placements
PACIFIC MUTUAL LIFE
INSURANCE COMPANY
By: Xxxxx X. Xxxxx
------------------------------
Xxxxx X. Xxxxx
Assistant Vice President
By: Xxxxx X. Xxxx
------------------------------
Xxxxx X. Xxxx
Assistant Secretary
JEFFERSON PILOT LIFE INSURANCE COMPANY
By: Xxxxxx X. Xxxxxx, XX
------------------------------
Xxxxxx X. Xxxxxx, XX
Second Vice President
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THE LINCOLN NATIONAL LIFE
INSURANCE COMPANY
By: Lincoln Investment Management, Inc.,
Its Attorney In Fact
By: J. Xxxxxx Xxxxxx
------------------------------
J. Xxxxxx Xxxxxx
Vice President
LINCOLN LIFE & ANNUITY COMPANY
OF NEW YORK
By: Lincoln Investment Management, Inc.,
Its Attorney In Fact
By: J. Xxxxxx Xxxxxx
------------------------------
J. Xxxxxx Xxxxxx
Vice President
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