Exhibit 4.2
SECOND CONSENT, WAIVER AND AMENDMENT
January 14, 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 (as amended, the "Credit Agreement"); (ii) the several Note
Agreements each dated as of June 26, 1996 among the Company, National Propane
Corporation, National Propane SGP, Inc. and the investors named therein (the
"Note Holders") (as amended, 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"); (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
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from time to time (as amended, the "Security Agreement"); and (vi) the Consent,
Waiver and Amendment dated as of November 5, 1996 by the Lenders (as defined in
the Credit Agreement), the Administrative Agent, the Noteholders and the Trustee
and accepted by National Propane. All capitalized terms not defined herein shall
have the meanings assigned to them in the Credit Agreement and the Note
Agreements.
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Section 6.14(a) of the Credit Agreement requires that the Company "deliver
to the Trustee and the Administrative Agent within six calendar months of the
Closing Date" original certificates of title of the Company's motor vehicles and
other rolling stock. Section 10.14(a) of the Note Agreements also requires that
the Company "deliver to the Trustee and . . . special counsel [to the Note
Holders (i.e., Debevoise & Xxxxxxxx)] within six calendar months of the date of
the Closing" originals of such certificates of title.
In addition, pursuant to Section 4.01(c) of the Security Agreement, the
Company covenants that it "will cause the certificates of title to the motor
vehicles and rolling stock set forth on Schedule 10 [to the Security Agreement]
to have been . . . delivered on or prior to six calendar months of the Closing
Date by the applicable department of motor vehicles, [in order] to perfect the
security interests granted to the Trustee in such motor vehicles and other
rolling stock." Finally, pursuant to Section 4.23 of the Security Agreement,
"[w]ithin six calendar months after the Closing Date," the Company covenants to
deliver "to the Trustee a complete set of certificates of title to all of the
motor vehicles and other rolling stock evidencing the perfected security
interests of the Trustee."
Under the laws of certain of the states in which the Company's motor
vehicles and other rolling stock are located, such states do not issue
certificates of title for certain motor vehicles and other rolling stock, such
as those which were manufactured before a certain year (e.g., in New York,
vehicles manufactured before 1973) or are of a certain type and weight (e.g., in
New York, trailers with an unladen weight less than 1,000 lbs.).
In addition, certificates of title for approximately 10 vehicles have not
been delivered to the Trustee, the Administrative Agent and Debevoise & Xxxxxxxx
because the appropriate departments of motor vehicles have indicated that liens
to third parties remain on such vehicles (the "Encumbered Certificates").
Although the Company believes that these liens do not reflect any current
indebtedness of the Company, it has not yet been able to contact the lien
holders to arrange for the release of such liens.
Finally, although the Company has complied with the other requirements of
the Credit Agreement, the Note Agreements, the Security Agreement and the Side
Letter pertaining to the granting and perfection of security interests in the
Company's motor vehicles and other rolling stock, and despite the Company's best
efforts, certificates of title for approximately 10% of the Company's motor
vehicles and other rolling stock have not been returned to the Company or
delivered to the Trustee by the appropriate departments of motor vehicles within
six calendar
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months of the Closing Date (such certificates of title, the "Outstanding
Certificates"). The Company hereby represents that it has filed all Outstanding
Certificates with the appropriate departments of motor vehicles.
Accordingly, for good and valuable consideration the receipt and adequacy
of which are hereby acknowledged, each of the undersigned Note Holders, each of
the undersigned Lenders 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 obtain or deliver to the
Trustee, the Administrative Agent or Debevoise & Xxxxxxxx any
certificate of title for any motor vehicle or other rolling stock of
the Company for which no such certificate of title is issued
pursuant to the laws of the state in which such motor vehicle or
other rolling stock is registered; and
2. The Company shall use its reasonable best efforts to deliver, or to
cause to be delivered, as soon as possible, to the Trustee, the
Administrative Agent and Debevoise & Xxxxxxxx, any Encumbered
Certificates, free and clear of any third party liens, and any
Outstanding Certificates, in all cases reflecting liens granted in
the name of the Trustee.
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 (i)
promptly takes any additional steps, if any, necessary or reasonably requested
by the Trustee to perfect the security interests granted in all of the Company's
uncertificated motor vehicles and other rolling stock and (ii) continues to use
its reasonable best efforts to deliver, or to cause to be delivered to the
Trustee, the Administrative Agent and Debevoise & Xxxxxxxx, any Encumbered
Certificates and Outstanding Certificates until all Encumbered Certificates and
Outstanding Certificates have been delivered in accordance with clause 2 of the
preceding paragraph.
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
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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 Second Consent, Waiver and Amendment shall become effective as of the
date first above written when the Company shall have received counterparts of
this Second 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 Second Consent, Waiver and Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
This Second 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.
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
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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
Exposure: $0.00
Aggregate amount of Unused
Commitments: $14,213,181.80
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
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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
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
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GENERAL AMERICAN LIFE INSURANCE
COMPANY
By: Conning Asset Management Company
By: ___________________________
Name:
Title:
Principal Amount of Notes:
$5,000,000
JEFFERSON-PILOT LIFE INSURANCE
COMPANY
By: ________________________________
Name:
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: ________________________________
Name:
Title:
Principal Amount of Notes:
$6,000,000
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PRINCIPAL MUTUAL LIFE INSURANCE
COMPANY
By: Xxxxxxxxxxx Xxxxxxxxx
Name: Xxxxxxxxxxx Xxxxxxxxx
Title: Counsel
By: Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Counsel
Principal Amount of Notes:
$13,000,000
TMG LIFE INSURANCE COMPANY
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
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NORTHWESTERN NATIONAL LIFE
INSURANCE COMPANY
By: ___________________________
Name:
Title:
Principal Amount of Notes:
$5,000,000
TRUSTEE:
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By: Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Assistant Vice President
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: Xxxxx X. Xxxxxx, Esq.
Name: Xxxxx X. Xxxxxx, Esq.
Title: Senior Vice President--Administration &
General Counsel
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