EXHIBIT 10.3
EXECUTION COPY
FIRST AMENDMENT dated as of March 27, 1997 (this
"First Amendment"), to the Credit Agreement dated as of
June 26, 1996 (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 First 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. The definition of "Consolidated
Cash Flow" set forth in Section 1.01 of the Credit Agreement is hereby amended
by inserting the following phrase immediately prior to the period in the last
sentence thereof: "and (5) Consolidated Cash Flow for the fiscal quarter ended
June 30, 1995 shall be deemed to equal $5,185,000".
SECTION 1.02. Amendment to Section 6.31. Section 6.31 of the Credit
Agreement is hereby amended by deleting the date "June 30, 1996" in the last
sentence thereof and substituting in lieu thereof the date "April 1, 1995".
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 Amended 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 First Amendment Effective Date (as defined
below) with the same effect as though made on and as of the date hereof
or the First 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 First 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 First Amendment have been duly authorized by the Borrower.
(d) This First 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 First 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. Effectiveness. This First Amendment shall become effective
only upon satisfaction of the following conditions precedent (the first date
upon which each such condition has been satisfied being herein called the "First
Amendment Effective Date"):
(a) The Administrative Agent shall have received duly
executed counterparts of this First 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 on and as of the First Amendment
Effective Date.
(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
First 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 FIRST 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 First
Amendment including, but not limited to, the
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reasonable fees and disbursements of counsel. The agreement set forth in this
Section 1.06 shall survive the termination of this First Amendment and the
Amended Agreement.
SECTION 1.07. Counterparts. This First 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 Amended 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
Amended 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
Amended Agreement specifically referred to by such amendment. Except as
expressly amended herein, the Amended Agreement shall continue in full force and
effect in accordance with the provisions thereof. As used in the Amended
Agreement, the terms "Agreement", "herein", "hereinafter", "hereunder", "hereto"
and words of similar import shall mean, from and after the date hereof, the
Amended Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed by their duly authorized officers, all as of the date first
above written.
Attest: NATIONAL PROPANE, L.P., as Borrower
By: NATIONAL PROPANE
CORPORATION,
its managing general partner
by /s/ C. Xxxxx Xxxxxx by /s/ Xxxxxx X. Rominiceki
__________________________ ________________________________
Name: C. Xxxxx Xxxxxx Name: Xxxxxx X. Rominiceki
Title: Asst. Secretary Title: S.V.P./CFO
Attest: By: NATIONAL PROPANE
SGP. INC.
its general partner
by /s/ C. Xxxxx Xxxxxx by /s/ Xxxxxx X. Rominiceki
__________________________ ________________________________
Name: C. Xxxxx Xxxxxx Name: Xxxxxx X. Rominiceki
Title: Asst. Secretary Title: S.V.P./CFO
THE FIRST NATIONAL BANK OF BOSTON,
as Administrative Agent and as a Lender
by
_______________________________
Name:
Title:
BANK OF AMERICA NT & SA,
as a Lender
by
_______________________________
Name:
Title:
BA SECURITIES, INC.,
as Syndication Agent
by
_______________________________
Name:
Title:
UNION BANK, as a Lender
by
_______________________________
Name:
Title:
