EXECUTION COPY
FOURTH AMENDMENT dated as of March 30, 1998 (this "Fourth Amendment"),
to the Credit Agreement dated as of June 26, 1996 (as amended prior to
the date hereof, the "Credit Agreement"), among National Propane,
L.P., a Delaware limited partnership (the "Borrower"), the Lenders (as
defined therein), BankBoston, N.A. (f/k/a The First National Bank of
Boston), as Administrative Agent and a Lender, and BancAmerica
Xxxxxxxxx Xxxxxxxx, 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 Fourth 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 Article VI. Section 6.31 of the Credit Agreement
is hereby amended by deleting paragraph (b) of such Section in it's entirety and
substituting in lieu thereof the following:
"The Borrower will not permit Net Working Capital as of September 30
or June 30 in any year to be less than $5,000,000; provided that, for the
fiscal quarter ended September 30, 1998 only, the Borrower shall maintain
positive Net Working Capital."
SECTION 1.02. 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 Fourth Amendment Effective Date (as defined below) with the same
effect as though made on and as of the date hereof or the Fourth 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 after giving effect hereto, no Default or
Event of Default has occurred and is continuing.
(c) The execution, delivery and performance by the Borrower of this
Fourth Amendment have been duly authorized by the Borrower.
(d) This Fourth 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
Fourth 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 1.03. Conditions. This Fourth 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 "Fourth
Amendment Effective Date");
(a) The Administrative Agent shall have received duly executed
counterparts of this Fourth Amendment which, when taken together, bear the
authorized signatures of the Borrower and the Lenders.
(b) The representations and warranties set forth in Section 1.02 shall
be true and correct.
(c) The 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 Lenders and their counsel. All
corporate and other proceedings taken or to be taken in connection with
this Fourth Amendment and all documents incidental thereto, whether or not
referred to herein, shall be satisfactory in form and substance to the
Lenders and their counsel.
SECTION 1.04. APPLICABLE LAW. THIS FOURTH 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 1.05. 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 Fourth
Amendment, including, but not limited to, the reasonable fees and disbursements
of counsel, including internal bank counsel. The agreement set forth in this
Section 1.05 shall survive the termination of this Fourth Amendment and the
Amended Agreement.
-2-
SECTION 1.06. Counterparts. This Fourth 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 1.07. 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, not 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 Fourth Amendment Effective Date,
the Amended Agreement.
-3-
IN WITNESS WHEREOF, the parties hereto have caused this Fourth 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/ R. Xxxxxx Xxxxxxx, Xx.
-------------------------- --------------------------
Name: C. Xxxxx Xxxxxx Name: R. Xxxxxx Xxxxxxx, Xx.
Title: Assistant Secretary Title: VP and Chief Financial
Officer
Attest: By: NATIONAL PROPANE
SGP, INC.,
its general partner
by /s/ C. Xxxxx Xxxxxx by /s/ R. Xxxxxx Xxxxxxx, Xx.
------------------------- --------------------------
Name: C. Xxxxx Xxxxxx Name: R. Xxxxxx Xxxxxxx, Xx.
Title: Assistant Secretary Title: VP and Chief Financial
Officer
BANKBOSTON, N.A., as Administrative Agent
and as a Lender
by /s/ Xxxxxxxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxxxxxxx Xxxxxxxx
Title: Director
BANK OF AMERICA NT & SA,
as a Lender
by /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
BANCAMERICA XXXXXXXXX XXXXXXXX,
as Syndication Agent
by /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
UINON BANK OF CALIFORNIA, N.A.,
as a Lender
by /s/ Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice
President
