Exhibit 4.7
FIRST AMENDMENT, dated as of November 22, 1994 (this
"Amendment"), to the REVOLVING CREDIT AND TERM LOAN AGREEMENT, dated as of
October 7, 1994 (as amended, supplemented, modified or extended from time to
time, the "Credit Agreement"), among NATIONAL PROPANE CORPORATION, a Delaware
corporation (the "Borrower"), each of the several lenders from time to time
parties thereto (each a "Lender" and, collectively, the "Lenders"), THE BANK
OF NEW YORK, as Administrative Agent for the Lenders (the "Administrative
Agent") and THE FIRST NATIONAL BANK OF BOSTON and INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL CORPORATION, as Co-Agents.
W I T N E S S E T H:
WHEREAS, (1) the parties desire to amend the Agreement in certain
respects and (2) the Lenders propose to waive a Default that otherwise may
occur under the terms of the Agreement, each in the manner set forth herein;
NOW, THEREFORE, the parties hereby agree as follows:
Section 1. Definitions; References. Unless otherwise
specifically defined herein, each term used herein which is defined in the
Agreement shall have the meaning assigned to such term in the Agreement.
Each reference to "hereof", "hereunder", "herein" and "hereby" and each other
similar reference contained in the Agreement shall, from and after the date
hereof, refer to the Agreement as amended hereby.
Section 2. Amendment of Section 8.02 of the Agreement. Section
8.02(e)(ii) of the Agreement is amended to read in its entirety as follows:
"(ii) so long as no payment or financial covenant Default or
Event of Default shall have occurred and be continuing, the Borrower
may pay management fees in respect of periods subsequent to the Closing
Date to the Guarantor in the ordinary course of business pursuant to
the Borrower Management Agreement; provided, however, that the Borrower
shall in no event pay to the Guarantor management fees in excess of
$4,000,000 in any 12-month period. Management fees not paid as a
consequence of the existence of a Default or Event of Default may be
accrued until any such Default or Event of Default has been cured or
waived, and may be paid thereafter."
Section 3. Waiver under Sections 8.02(a) and 9.01(b) of the
Agreement. By executing this Amendment, each Bank shall waive any right to
accelerate or cause the acceleration of Loans pursuant to Section 9.01(b) of
the Agreement in respect of Borrower's inability to eliminate, on or prior to
30 Business Days after the Closing Date, certain Liens that may exist on
certain of its properties pursuant to Section 8.02(a)(ii); provided, that the
Borrower shall, in the reasonable judgment of the Administrative Agent,
eliminate all Liens referred to in Section 8.02(a)(ii) not later than
December 31, 1994.
Section 4. Representations and Warranties. The Borrower
represents and warrants to the Administrative Agent and the Lenders (a) that
the execution and delivery of this Amendment by it has been duly authorized
by all necessary corporate action and (b) that this Amendment constitutes the
valid and legally binding obligation of the Borrower enforceable in
accordance with its terms, subject to bankruptcy, insolvency, reorganization,
fraudulent transfer and other similar laws relating to or affecting
creditors' rights generally and to general equity principles.
Section 5. Governing Law. This Amendment shall be governed by
and construed in accordance with the internal laws of the State of New York.
Section 6. Counterparts. This Amendment may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed as of the date first above written.
NATIONAL PROPANE CORPORATION
By: Thomas E. Shultz
----------------------
Name: Thomas E. Shultz
Title: Vice President & Treasurer
THE BANK OF NEW YORK, as
Administrative Agent and as a Lender
By: Glenn Autorino
----------------------
Name: Glenn Autorino
Title:
THE FIRST NATIONAL BANK OF BOSTON
By: Michael Kane
----------------------
Name: Michael Kane
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By: Nathan L. Bloch
----------------------
Name: Nathan L. Bloch
Title: Vice President
INTERNATIONALE NEDERLANDEN
(U.S.) CREDIT CORPORATION
By: Robert L. Fellows
----------------------
Name: Robert L. Fellows
Title:
USL CAPITAL CORPORATION
By:__________________________
Name:
Title:
PILGRIM PRIME RATE TRUST
By: Kathleen Linarcic
----------------------
Name: Kathleen Linarcic
Title: Senior Credit Analyst
VAN KAMPEN MERRITT
PRIME RATE INCOME TRUST
By: Jeffrey W. Maillet
----------------------
Name: Jeffrey W. Maillet
Title: