Exhibit 4.24
FIFTH AMENDMENT, dated as of December 26, 1995 (this
"Amendment"), to the REVOLVING CREDIT AND TERM LOAN AGREEMENT, dated as of
October 7, 1994 (as amended and as the same may be further amended,
supplemented, modified or extended from time to time, the "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, under the Agreement there is currently outstanding a
revolving credit facility (referred to therein as the "Revolving Credit
Commitment") in the amount of $60,000,000 a portion of which has been
utilized by the issuance of a letter of credit for the account of the
Borrower in the amount of $30,000,000 expiring on December 31, 1995 (the
"Letter of Credit"); and
WHEREAS, it is expected that the Letter of Credit will be drawn
on in full on or about December 27, 1995 (the "Drawing Date") and the
Borrower will immediately thereafter borrow the sum of $30,000,000 under
the Revolving Credit Commitment (the "Refunding Loan") and use the proceeds
thereof to reimburse the drawing under the Letter of Credit; and
WHEREAS, it is desirable to have the Refunding Loan evidenced by
separate promissory notes; and
WHEREAS, the parties desire to amend the Agreement to reflect the
foregoing.
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. The Refunding Notes. Notwithstanding the provisions
of Section 2.03 of the Agreement, the Borrower's obligation to repay the
Refunding Loan will be evidenced by promissory notes of the Borrower
substantially in the form of Exhibit A to this Amendment (each a "Refunding
Note"), one such payable to the order of each Revolving Credit Lender in
the amount of its proportionate share of the Refunding Loan, to be
delivered to the Revolving Credit Lenders on the Drawing Date. The
Refunding Loan shall nevertheless be a Revolving Credit Loan for all
purposes of the Agreement, and the Borrower's obligation to repay all
Revolving Credit Loans other than the Refunding Loan shall continue to be
evidenced by the Revolving Credit Notes.
Section 3. Representations and Warranties. The Borrower
represents and warrants to the Administrative Agent and the Lenders
(a) that the execution and delivery of this Amendment and the Refunding
Notes by it have been duly authorized by all necessary corporate action,
(b) that this Amendment constitutes, and the Refunding Notes when executed
and delivered by the Borrower will constitute, the valid and legally
binding obligations of the Borrower enforceable in accordance with their
respective terms, subject to bankruptcy, insolvency, reorganization,
fraudulent transfer and other similar laws relating to or affecting
creditors' rights generally and to general equity principles and (c) the
execution, delivery and performance of this Amendment and the Refunding
Notes do not violate or contravene the terms of the Borrower's charter
documents, by-laws or any agreement or instrument binding on the Borrower
or its property.
Section 4. Governing Law. This Amendment shall be governed by
and construed in accordance with the internal laws of the State of New
York.
Section 5. 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 instru-
ment.
Section 6. Effectiveness. This Amendment shall become effective
upon the execution of this Amendment by the Borrower, the Guarantor and the
Required Banks (as defined in the Agreement).
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: VP & Treasurer
THE BANK OF NEW YORK, as
Administrative Agent and as a Lender
By: William O' Daly
Name: William O'Daly
Title: Assistant Vice President
THE FIRST NATIONAL BANK OF BOSTON
By: Christopher Holmgren
Name: Christopher Holmgren
Title: V.P.
THE FIRST NATIONAL BANK OF CHICAGO
By: Joan D. Winstein
Name: Joan D. Winstein
Title: Vice President
FIRST AMERICAN NATIONAL BANK
By: Kelli H. Ernst
Name: Kelli H. Ernst
Title: Corporate Bank Officer
INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL CORPORATION
By: Barry A. Iseley
Name: Barry A. Iseley
Title: Vice President
USL CAPITAL CORPORATION
By:________________________________
Name:
Title:
PILGRIM PRIME RATE TRUST
By: Michael J. Bacevich
Name: Michael J. Bacevich
Title: Ass't Portfolio Mgr
VAN KAMPEN AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By: Kathleen A. Zarn
Name: Kathleen A. Zarn
Title: Vice President
Triarc Companies Inc., as Guarantor, hereby consents to the
foregoing Fifth Amendment
TRIARC COMPANIES, INC.
By: Joseph A. Levato
Exhibit A
REFUNDING NOTE
$_____________ December __, 1995
NATIONAL PROPANE CORPORATION, a Delaware corporation
(the "Borrower"), for value received, hereby promises to pay to
the order of ___________________________________ (the "Lender"),
at the office of The Bank of New York, as Administrative Agent,
at One Wall Street, New York, New York 10286 in lawful money of
the United States, on March 31, 2000, the principal sum of
______________________________ . This Note shall bear interest on
the dates and at the rates set forth in the Credit Agreement (as
defined below) for ABR Revolving Loans and Eurodollar Revolving
Loans.
This Note evidences a Revolving Credit Loan made on
December 27, 1995 pursuant to that certain 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"), between the Borrower, The Bank of New York, as
Administrative Agent, The First National Bank of Boston and
Internationale Nederlanden (U.S.) Capital Corporation, as Co-
Agents, and the lenders from time to time parties thereto,
including the Lender. This Note is subject to prepayment in
whole or in part and its maturity is subject to acceleration upon
the terms provided in the Credit Agreement.
All changes in interest determination on the Revolving
Credit Loans made by the Lender to the Borrower pursuant to the
Credit Agreement and all payments of principal and interest on
this Note may be indicated by the Lender upon the grid attached
hereto which is a part of this Note. Such notations shall be
presumed correct absent manifest error as to the aggregate unpaid
principal amount of the Revolving Credit Loan evidenced by this
Note, and interest due thereon, provided, that any failure by the
Lender to make any such notations shall not affect the
obligations of the Borrower hereunder or under the Credit
Agreement in respect of such Loan.
This Note is entitled to the benefits of the Guarantee
and the Security Documents referred to in the Credit Agreement.
The obligations of the Borrower evidenced hereby
constitute "senior debt" for purposes of all documents to which
the Borrower is a party or by which it or its properties are
bound.
This Note shall be governed by, and construed and
interpreted in accordance with, the laws of the State of
New York.
NATIONAL PROPANE CORPORATION
By__________________________
Name:
Title:
Interest and Payments of Principal
Interest Interest
Period Interest Rate (if Amount Name of
Method Period (if fixed for of Unpaid Person
(ABR) or Eurodollar a specified Principal Principal Notifi-
Eurodollar Loan) Period) Paid Balance cation
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