EXHIBIT 10.1
SECOND AMENDMENT dated as of April 22, 1997 (this 'Second Amendment'), to
the Credit Agreement dated as of June 26, 1996 (as amended to the date hereof,
the 'Credit Agreement'), among National Propane, L.P., a Delaware limited
partnership (the 'Borrower'), the Lenders (as defined therein), The First
National Bank of Boston, as Administrative Agent and a Lender, Bank of America
NT & SA, as a Lender, and BA Securities, Inc., as Syndication Agent.
The parties hereto have agreed, subject to the terms and conditions hereof,
to amend the Credit Agreement as provided herein.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement (the Credit Agreement,
as amended by, and together with, this Second Amendment, and as hereinafter
amended, modified, extended or restated from time to time, being called the
'Amended Agreement').
Accordingly, the parties hereto hereby agree as follows:
SECTION 1.01. Amendment to Section 1.01. Effective as of March 31,
1997 (the 'Second Amendment Effective Date'), Section 1.01 of the Credit
Agreement is hereby amended by deleting the definition of 'Reference
Period' set forth therein in its entirety and substituting the following
definition in lieu thereof:
'Reference Period' with respect to any date of determination shall
mean the period of four consecutive fiscal quarters of the Borrower most
recently completed at least 45 days prior to such date, except that (a)
solely for purposes of Section 6.31 (but not, except as otherwise
expressly provided in clause (b) below, for purposes of determining the
Applicable Margin, calculating the Leverage Ratio as required by
Sections 4.03(g), 6.01, 6.03, 6.07 and 6.24 hereof, calculating the
ratio of Consolidated Cash Flow to Consolidated Interest Expense as
required by Section 6.04 or any other purpose (other than determining
compliance with Section 6.31 as required by Section 6.04)), the
'Reference Period' with respect to any date of determination shall have
the meaning set forth in the last sentence of Section 6.31(a), (b) for
purposes of calculating the Leverage Ratio as required by Sections
4.03(g), 6.01, 6.03, 6.07 and 6.24 hereof, the 'Reference Period' with
respect to any date of determination prior to March 31, 1998 shall have
the meaning set forth in the last sentence of Section 6.31(a), (c) for
purposes of determining compliance with Section 6.31 as required by
Section 6.04 (but not for purposes of calculating the ratio of
Consolidated Cash Flow to Consolidated Interest Expense as required by
Section 6.04), the 'Reference Period' with respect to any date of
determination shall have the meaning set forth in the last sentence of
Section 6.31(a) for the applicable period immediately preceding, or
ending on, such date of determination, (d) for purposes of calculating
the ratio of Consolidated Cash Flow to Consolidated Interest Expense as
required by Section 6.04, the Reference Period shall mean the period of
four consecutive fiscal quarters of the Borrower most recently completed
prior to the date of determination and (e) for purposes of calculating
Consolidated Interest Expense for the period ending on the last day of
the first, second or third fiscal quarter after the Closing Date,
'Reference Period' shall be subject to the provisions set forth in the
definition of 'Consolidated Interest Expense.'
SECTION 1.02. Amendment to Section 6.31. Effective as of the Second
Amendment Effective Date, Section 6.31 of the Credit Agreement is hereby
amended by deleting the last sentence of such Section in its entirety and
substituting the following definition in lieu thereof:
'For purposes of (A) this Section 6.31 only, but not (except as
otherwise expressly provided in clause (B) below) for purposes of
determining the Applicable Margin, calculating the Leverage Ratio as
required by Sections 4.03(g), 6.01, 6.03, 6.07 and 6.24, calculating the
ratio of Consolidated Cash Flow to Consolidated Interest Expense as
required by Section 6.04 or any other purpose (other than determining
compliance with Section 6.31 as required by Section 6.04) and (B)
calculating the Leverage Ratio as of any date prior to March 31, 1998 as
required by Section 4.03(g), 6.01, 6.03, 6.07 or 6.24, Consolidated Cash
Flow for any Reference Period (other than any Reference Period including
any period prior to April 1, 1995) shall mean the greater of (I)
Consolidated Cash Flow for the most recent period of four consecutive
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fiscal quarters prior to the date of determination and (II) 50% of
Consolidated Cash Flow for the most recent period of eight consecutive
fiscal quarters prior to the date of determination.'
SECTION 1.03. Representations and Warranties. The Borrower hereby
represents and warrants to the Agents and the Lenders, as follows:
(a) The representations and warranties set forth in Article III of
the Credit Agreement and the representations and warranties of the
Borrower and the other Loan Parties set forth in the other Loan
Documents are true and correct in all material respects on and as of the
date hereof and on and as of the Second Amendment Effective Date with
the same effect as though made on and as of the date hereof or the
Second Amendment Effective Date, as the case may be, except to the
extent such representations and warranties expressly relate to an
earlier date (in which case such representations and warranties are true
and correct in all material respects on and as of such earlier date).
(b) On the date hereof and on the Second Amendment Effective Date,
no Default or Event of Default has occurred and is continuing.
(c) The execution, delivery and performance by the Borrower of this
Second Amendment have been duly authorized by the Borrower.
(d) This Second Amendment constitutes the legal, valid and binding
obligation of the Borrower, enforceable against it in accordance with
its terms.
(e) The execution, delivery and performance by the Borrower of this
Second Amendment will not (i) violate (A) any provision of law, statute,
rule or regulation, (B) any provision of the certificate of
incorporation or by-laws of the Borrower, (C) any order of any
Governmental Authority or (D) any provision of any indenture, agreement
or other instrument to which the Borrower or any of the Loan Parties is
a party or by which any of them or any of their property is or may be
bound, (ii) be in conflict with, result in a breach of or constitute
(alone or with notice or lapse of time or both) a default or give rise
to increased, additional, accelerated or guaranteed rights of any person
under any such indenture, agreement or other instrument or (iii) result
in the creation or imposition of any Lien upon or with respect to any
property or assets now owned or hereafter acquired by the Borrower or
any of the other Loan Parties.
SECTION 1.04. Conditions. The effectiveness of this Second Amendment
shall be subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received duly executed
counterparts of this Second Amendment which, when taken together, bear
the authorized signatures of the Borrower and the Required Lenders.
(b) The representations and warranties set forth in Section 1.03
shall be true and correct.
(c) The Required Lenders shall have received such other documents,
legal opinions, instruments and certificates as they shall reasonably
request and such other documents, legal opinions, instruments and
certificates shall be satisfactory in form and substance to the Required
Lenders and their counsel. All corporate and other proceedings taken or
to be taken in connection with this Second Amendment and all documents
incidental thereto, whether or not referred to herein, shall be
satisfactory in form and substance to the Required Lenders and their
counsel.
SECTION 1.05. APPLICABLE LAW. THIS SECOND AMENDMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO ANY CONFLICTS OF LAWS PRINCIPLES OF SUCH STATE.
SECTION 1.06. Expenses. The Borrower shall pay all reasonable
out-of-pocket expenses incurred by the Agents and the Lenders in connection
with the preparation, negotiation, execution, delivery and enforcement of
this Second Amendment, including, but not limited to, the reasonable fees
and disbursements of counsel. The agreement set forth in this Section 1.06
shall survive the termination of this Second Amendment and the Amended
Agreement.
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SECTION 1.07. Counterparts. This Second Amendment may be executed in
any number of counterparts, each of which shall constitute an original but
all of which when taken together shall constitute but one agreement.
SECTION 1.08. Credit Agreement. Except as expressly set forth herein,
the amendments provided herein shall not by implication or otherwise limit,
constitute a waiver of, or otherwise affect the rights and remedies of the
Lenders, the Agent or the other Secured Parties under the Credit Agreement
or any other Loan Document, nor shall they constitute a waiver of any
Default or Event of Default, nor shall they alter, modify, amend or in any
way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement or any other Loan Document.
Each of the amendments provided herein shall apply and be effective only
with respect to the provisions of the Credit Agreement specifically
referred to by such amendment. Except as expressly amended herein, the
Credit Agreement shall continue in full force and effect in accordance with
the provisions thereof. As used in the Credit Agreement, the terms
'Agreement', 'herein', 'hereinafter', 'hereunder', 'hereto' and words of
similar import shall mean, from and after the Second Amendment Effective
Date, the Amended Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to
be duly executed by their duly authorized officers, all as of the date first
above written.
NATIONAL PROPANE, L.P.,
Attest: as Borrower
By: NATIONAL PROPANE CORPORATION,
its managing general partner
by /s/ C. Xxxxx Xxxxxx by /s/ Xxxxxx X. Xxxxxxxxxx
............................................... ........................................................
Name: C. Xxxxx Xxxxxx Name: Xxxxxx X. Xxxxxxxxxx
Title: Assistant Secretary Title: Sr. Vice President and CFO
By: NATIONAL PROPANE SGP, INC.,
Attest: its general partner
by /s/ C. Xxxxx Xxxxxx by /s/ Xxxxxx X. Xxxxxxxxxx
............................................... ........................................................
Name: C. Xxxxx Xxxxxx Name: Xxxxxx X. Xxxxxxxxxx
Title: Assistant Secretary Title: Sr. Vice President and CFO
THE FIRST NATIONAL BANK OF BOSTON,
as Administrative Agent and as a Lender
by /s/ Xxxxxxx X. Xxxxxx
........................................................
Name: Xxxxxxx X. Xxxxxx
Title: Director
BANK OF AMERICA NT & SA,
as a Lender
by /s/ Xxxxx X. Xxxxxx
........................................................
Name: Xxxxx X. Xxxxxx
Title: Vice President
BA SECURITIES, INC.,
as Syndication Agent
by ........................................................
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.,
as a Lender
by /s/ Xxxxxx X. Xxxx
........................................................
Name: Xxxxxx X. Xxxx
Title: Vice President
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