Exhibit 4.1
CONSENT, WAIVER AND AMENDMENT
November 5, 0000
XXXXXXXX XXXXXXX, X.X.
Xxxxx 0000
IES Tower
000 Xxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxx 00000
Ladies and Gentlemen:
Reference is hereby made to (i) the Credit Agreement dated as of June 26,
1996 by and among National Propane, L.P. (the "Company"), The First National
Bank of Boston, as Administrative Agent and a Lender (the "Administrative
Agent"), Bank of America NT & SA, as a Lender, and BA Securities, Inc., as
Syndication Agent (the "Credit Agreement"); (ii) the several Note Agreements
dated as of June 26, 1996 among the Company, National Propane Corporation,
National Propane SGP, Inc. and the investors name therein (the "Note Holders")
(the "Note Agreements"); (iii) that certain Letter dated as of July 2, 1996 of
the Company, accepted and agreed to by the Administrative Agent and incorporated
in the Note Agreements as Exhibit R thereto (the "Side Letter"); (iv) the
Intercreditor and Trust Agreement dated as of June 26, 1996 among the Company,
National Propane Partners, L.P., National Propane Corporation, The Bank of New
York, as Trustee (the "Trustee"), the Note Holders, the Banks party thereto and
certain other parties party thereto from time to time (the "Trust Agreement");
and (v) the Pledge and Security Agreement dated as of June 26, 1996 among the
Company, National Propane Corporation, the Trustee, and other parties party
thereto from time to time (the "Security Agreement"). All capitalized terms not
defined herein shall have the meanings assigned to them in the Credit
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Agreement and the Note Agreements.
Paragraph (v) of the Side Letter required the Company, within ninety (90)
days from the date of the Closing, to (A) use reasonable efforts to provide or
cause to be provided to the Lenders and Note Holders legal descriptions for all
leased properties (those leasehold properties for which legal descriptions have
been obtained, the "Included Properties") and (B) provide or cause to be
provided to the Lenders legal descriptions for certain Required Properties (as
defined therein), excluding the Required Properties listed in the proviso
thereto (together with all other leased real properties that are not Required
Properties or Included Properties, the "Excluded Properties").
The obligations of the Company in paragraph (v) of the Side Letter
reflects the fact that Uniform Commercial Code and other filings with respect to
fixtures (the "Fixture Filings") located at the leased real property of the
Company could not be made until legal descriptions for such properties, which
had not been obtained as of the Closing Date, were obtained. In addition,
Paragraph (v) of the Side Letter reflects the intention of the Note Holders and
the Lenders to relieve the Company from the obligation to make Fixture Filings
and perfect a security interest in fixtures located at Excluded Properties for
which legal descriptions were not obtained despite the use by the Company of its
reasonable efforts to obtain the same. Notwithstanding the Side Letter, the
Credit Agreement, the Note Agreements and the Security Agreement contain
provisions requiring the Company to have made all the Fixture Filings
(including, without limitation, with respect to fixtures located at the Excluded
Properties) on or prior to the Closing Date in order to create a valid and duly
perfected security interest in favor of the Trustee in all such Collateral.
In addition, notwithstanding the Side Letter, Section 4.14 of the Security
Agreement requires the Company, within 120 days after the Closing Date, to
deliver to the Trustee a certificate executed by a financial officer of the
Company setting forth, with respect to each filing, recording or registration
contemplated by Section 4.01 thereof (including, without limitation, Fixture
Filings with respect to the Included Properties, the Required Properties and the
Excluded Properties),
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the filing office date and file number thereof and attaching true, correct and
complete acknowledgment copies of each such filing, recording or registration
(the "Filing Certificate").
Accordingly, for good and valuable consideration the receipt and adequacy
of which are hereby acknowledged, each of the undersigned Note Holders,
constituting collectively the Required Holders, each of the undersigned Lenders,
constituting collectively the Required Lenders (and together with the Required
Holders, constituting collectively the Requisite Percentage (as defined in the
Trust Agreement)), and the Trustee, hereby agree, consent, waive and amend all
provisions of the Credit Agreement, the Note Agreements, the Security Agreement
and each other Operative Agreement to give effect to the following:
1. The Company shall not be required to make Fixture
Filings with respect to the Excluded Properties for
which legal descriptions have not been obtained as of
the date hereof; and
2. The Company shall have (x) 60 days from the date hereof to make
Fixture Filings with respect to the Included Properties and the
Required Properties (other than the Excluded Properties) and (y) 120
days from the date hereof to deliver the Filing Certificate.
In addition, the undersigned Note Holders, Lenders and Trustee hereby
waive any Default, Potential Event of Default or Event of Default resulting from
the failure of the Company to take the actions referred to in the foregoing
paragraph on or prior to the dates required therefor in the Credit Agreement,
the Note Agreements and the Security Agreement, provided, that the Company files
the Fixture Filings with respect to the Included Property and the other Required
Properties (other than the Excluded Properties) within 60 days from the date
hereof and delivers the Filing Certificate to the Trustee within 120 days from
the date hereof.
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Each of the Note Holders represents and warrants to the Company that it is
the registered owner of the principal amount of Notes set forth below its name
on the signature pages hereto. Each of the Lenders represents and warrants to
the Company that it is the holder of the aggregate principal amount of
outstanding Loans, aggregate amount of letter of credit exposure and aggregate
amount of unused Commitments set forth below its name on the signature pages
hereto.
This Consent, Waiver and Amendment shall become effective as of the date
first above written when the Company shall have received counterparts of this
Consent, Waiver and Amendment that, when taken together, bear the signatures of
the Company, the Required Holders, the Required Lenders, the Requisite
Percentage
and the Trustee.
This Consent, Waiver and Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
This Consent, Waiver and Amendment may be executed in two or more
counterparts, each of which shall be deemed an original but all of which taken
together shall constitute the same instrument.
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If you are in agreement with the foregoing, please sign the form of
acceptance in the space provided below.
Very truly yours,
REQUIRED LENDERS:
THE FIRST NATIONAL BANK OF BOSTON
By: Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
Principal Amount of outstanding
Loans: $1,049,090.90
Aggregate amount of Letter of Credit
Exposure: $0.00
Aggregate amount of Unused
Commitments: $18,950,909.10
BANK OF AMERICA NT & SA
By: Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Principal Amount of outstanding
Loans: $1,049,090.90
Aggregate amount of Letter of Credit
Exposure: $0.00
Aggregate amount of Unused
Commitments: $18,950.909.10
UNION BANK OF CALIFORNIA, N.A.
By: Xxxxxx X. Xxxx
---------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
Principal Amount of outstanding
Loans: $786,818.20
Aggregate amount of Letter of Credit
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Exposure: $0.00
Aggregate amount of Unused
Commitments: $14,213,181.80
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REQUIRED HOLDERS:
CONNECTICUT GENERAL LIFE
INSURANCE COMPANY
By: CIGNA INVESTMENTS, INC.
By: Xxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
Principal Amount of Notes:
$15,000,000
CONNECTICUT GENERAL LIFE
INSURANCE COMPANY, on behalf
of its Separate Account 66
By: CIGNA INVESTMENTS, INC.
By: Xxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
Principal Amount of Notes:
$3,000,000
LIFE INSURANCE COMPANY OF
NORTH AMERICA
By: CIGNA INVESTMENTS, INC.
By: Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
Principal Amount of Notes:
$3,000,000
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TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By: Xxxx Xxxxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Director--Private Placements
Principal Amount of Notes:
$21,000,000
MIDWESTERN UNITED LIFE INSURANCE
COMPANY
Principal Amount of Notes: $2,000,000
PEERLESS INSURANCE COMPANY
Principal Amount of Notes: $2,000,000
SECURITY LIFE OF DENVER INSURANCE
COMPANY
Principal Amount of Notes: $4,000,000
By: ING Investment Management, Inc.,
its Agent
By: Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President &
Managing Director
GENERAL AMERICAN LIFE INSURANCE
COMPANY
By: Conning Asset Management Company
By: Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
Principal Amount of Notes:
$5,000,000
8
JEFFERSON-PILOT LIFE INSURANCE
COMPANY
By: Xxxxx X. XxXxxxxx
------------------------------------
Name: Xxxxx X. XxXxxxxx
Title:
Principal Amount of Notes:
$6,000,000
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Principal Amount of Notes:
$23,000,000
PACIFIC MUTUAL LIFE INSURANCE
COMPANY
By: Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
Principal Amount of Notes:
$6,000,000
PRINCIPAL MUTUAL LIFE INSURANCE
COMPANY
By: Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
Title: Counsel
Principal Amount of Notes:
$13,000,000
TMG LIFE INSURANCE COMPANY
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By: The Mutual Group (U.S.), Inc., its
agent
By: _____________________________
Name:
Title:
Principal Amount of Notes:
$2,000,000
KEYPORT LIFE INSURANCE COMPANY
By: Xxxxx Xxx & Xxxxxxx Incorporated,
as agent
By: _____________________________
Name:
Title:
Principal Amount of Notes:
$12,000,000
NORTHERN LIFE INSURANCE COMPANY
By: _____________________________
Name:
Title:
Principal Amount of Notes:
$3,000,000
NORTHWESTERN NATIONAL LIFE
INSURANCE COMPANY
By: _____________________________
Name:
Title:
Principal Amount of Notes:
$5,000,000
TRUSTEE:
00
XXX XXXX XX XXX XXXX,
not in its individual capacity
but solely as Trustee
By: Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Assistant Vice President
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The foregoing Consent, Waiver and Acceptance is hereby accepted as of the date
first written:
NATIONAL PROPANE, L.P.
By: National Propane Corporation,
its managing general partner
By: Xxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Senior Vice President & CFO
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