AMENDMENT NO. 2 TO NOTE AGREEMENTS
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Amendment No. 2 to Note Agreements (this "Amendment"), dated
as of April 5, 1999, among National Propane Corporation, a Delaware corporation
("National Propane Corp."), National Propane SGP, Inc., a Delaware corporation
("National Propane SGP"), National Propane, L.P., a Delaware limited partnership
(the "Company" and together with National Propane Corp. and National Propane
SGP, collectively "National Propane"), and the holders (the "Holders") of the
Company's 8.54% First Mortgage Notes due June 30, 2010 in the aggregate
principal amount of $125,000,000 (the "Notes"), relating to the separate Note
Agreements (as amended to the date hereof, the "Note Agreements"), dated as of
June 26, 1996, among National Propane and the purchasers of the Notes listed in
the Schedule of Purchasers attached thereto. Capitalized terms used herein
without definition shall have the respective meanings assigned thereto in the
Note Agreements.
The parties hereto have agreed, subject to the terms and
conditions hereof, to amend the Note Agreements as provided herein.
In consideration of the mutual agreements contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. (a) The first sentence of Section 9.5 of the Note
Agreements is hereby amended and restated in its entirety to read as follows:
"The Company will give each holder of any Notes irrevocable
written notice of each prepayment under Section 9.2 or 9.4 not less than 10 days
(one Business Day in the case of a prepayment occurring on the Merger Date) and
not more than 30 days prior to the date fixed for such prepayment, in each case
specifying such prepayment date, the aggregate principal amount of the Notes and
the principal amount of each Note held by such holder to be prepaid and the
Section under which such prepayment is to be made."
(b) Section 9.5 is further hereby amended by adding at the end
thereof the following additional sentence:
"In the case of any proposed prepayment to occur on the Merger
Date, in addition to the irrevocable notice required by the first sentence of
this Section 9.5, the Company will give each holder of any Notes a preliminary
revocable written notice of such prepayment not less than 10 days prior to the
proposed date fixed for such prepayment, specifying such prepayment date."
2. The definition of Make Whole Amount in Section 13 of the
Note Agreements is hereby amended and restated in its entirety to read as
follows:
"Make Whole Amount: with respect to any Note (a) in the event
of (i) an optional prepayment of the Notes pursuant to Section 9.2 on the Merger
Date, or (ii) an acceleration of one or more Notes pursuant to Section 11
(excluding an acceleration pursuant to Section 11(a) or (b)), in either case
during the period beginning on the date of payment of the fee pursuant to
Section 9 of Amendment No. 2 and ending on the earlier of (x) 210 days
thereafter, (y) the date of termination of the Purchase Agreement, or (z) March
31, 2000, an amount equal to 2% of the then outstanding principal amount of
such Note, and (b) in all other cases, an amount equal to the excess, if any, of
the Discounted Value of the Remaining Scheduled Payments of the Called Principal
of such Note over such Called Principal. The Make Whole Amount shall in no event
be less than zero."
3. Section 13 of the Note Agreements is hereby amended by
adding thereto the following additional definitions:
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"Amendment No. 2: Amendment No. 2 to Note Agreements, dated as
of April 5, 1999, among the Company, the General Partners and the holders of the
Notes then outstanding."
"Merger Date: the date of consummation of a merger resulting
in the acquisition of 100% of the common units representing limited partnership
interests of the Public Partnership pursuant to the Purchase Agreement."
"Purchase Agreement: the Purchase Agreement, dated as of April
5, 1999, among National Propane Corp., National Propane SGP, National Propane
Partners, L.P., Triarc Companies, Inc. and a prospective purchaser of common
units representing limited partnership interests in National Propane Partners,
L.P."
4. Conditions Precedent. (a) This Amendment shall become
effective and binding when it shall have been duly executed by National Propane
and each of the Holders and each of the parties hereto shall have received
copies of a composite copy executed by each of the other parties hereto.
(b) The amendments to the Note Agreements contained in
Sections 1, 2 and 3 shall become effective and binding upon the
satisfaction of the following conditions precedent:
(i) this Amendment shall have become effective and binding
in accordance with paragraph (a) hereof;
(ii) each of the Holders shall have received the fee
specified in Section 9; and
(iii) the Purchase Agreement shall have been duly executed
and delivered by the parties thereto.
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5. Continuing Effect; No Other Amendments; No Waivers. (a)
Except as expressly amended hereby, all of the terms and provisions of the Note
Agreements and the Notes are and shall remain in full force and effect. The
amendments contained herein shall not constitute an amendment of any other
provision of the Note Agreements or the Notes. (b) Nothing in this Amendment
shall in any way be deemed (i) a waiver of any Event of Default or Potential
Event of Default, as the case may be, or (ii) an agreement to forbear from
exercising any remedies with respect to any such Event of Default or Potential
Event of Default, as the case may be.
6. Successors and Assigns. This Amendment shall be binding
upon, inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto, whether so expressed or not, and, in
particular, shall inure to the benefit of and be enforceable by any holder or
holders at the time of any Notes.
7. GOVERNING LAW. THIS AMENDMENT HAS BEEN EXECUTED IN THE CITY
OF NEW YORK, STATE OF NEW YORK, UNITED STATES OF AMERICA AND SHALL BE GOVERNED
BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE.
8. Expenses. The Company shall pay all reasonable
out-of-pocket expenses actually incurred by the Holders in connection with the
preparation, review,
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negotiation, execution, delivery and enforcement of this Amendment, including,
but not limited to, the reasonable fees and disbursements of counsel.
9. Fee. On the date of the closing of the purchase of common
units in the tender offer referred to in the Purchase Agreement described in
Section 4(b)(iii) hereof, the Company shall cause the purchaser under such
Purchase Agreement to pay to each Holder a fee of .5% of the outstanding
principal amount of Notes held by such Holder on such date.
10. Counterparts. This 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.
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IN WITNESS WHEREOF, the parties hereby have caused this
Amendment to be duly executed by their duly authorized officers, all as of the
date first above written.
NATIONAL PROPANE CORPORATION
By: /s/ Ronald R. Rominiecki
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Name: Ronald R. Rominiecki
Title: President and COO
NATIONAL PROPANE SGP, INC.
By: /s/ Ronald R. Rominiecki
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Name: Ronald R. Rominiecki
Title: President and COO
NATIONAL PROPANE, L.P.
By: NATIONAL PROPANE CORPORATION,
its managing general partner
By: /s/ Ronald R. Rominiecki
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Name: Ronald R. Rominiecki
Title: President and COO
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By: NATIONAL PROPANE SGP, INC., its
special general partner
By: /s/ Ronald R. Rominiecki
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Name: Ronald R. Rominiecki
Title: President and COO
CONNECTICUT GENERAL LIFE
INSURANCE COMPANY
By: CIGNA INVESTMENTS, INC.,
its Authorized Agent
By: /s/ James G. Schelling
---------------------------
Name: James G. Schelling
Title: Managing Director
CONNECTICUT GENERAL LIFE
INSURANCE COMPANY, on behalf of
Separate Account 66
By: CIGNA INVESTMENTS, INC.,
its Authorized Agent
By: /s/ James G. Schelling
----------------------------
Name: James G. Schelling
Title: Managing Director
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LIFE INSURANCE COMPANY OF NORTH
AMERICA
By: CIGNA INVESTMENTS, INC.,
its Authorized Agent
By: /s/ James G. Schelling
-----------------------------
Name: James G. Schelling
Title: Managing Director
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: /s/ William L. McCown
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Name: William L. McCown
Title: Vice President-Investment Counsel
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Capital Management, LLC, a
Delaware limited liability company, its
authorized signatory
By: /s/ Christopher J. Henderson
--------------------------------
Name: Christopher J. Henderson
Title: Counsel
By: /s/ James G. Fifield
---------------------------------
Name: James G. Fifield
Title: Counsel
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KEYPORT LIFE INSURANCE COMPANY
By: STEIN ROE & FARNHAM,
INCORPORATED, as agent
By: /s/ Richard A. Hegwood
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Name: Richard A. Hegwood
Title: Senior Vice President
GENERAL AMERICAN LIFE INSURANCE
COMPANY
By Conning Asset Management Company
By: /s/ Douglas R. Koester
--------------------------------
Name: Douglas R. Koester
Title: Senior Vice President
TMG LIFE INSURANCE COMPANY
By: THE MUTUAL GROUP (U.S.), INC., its
agent
By: /s/ Constance L. Keller
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Name: Constance L. Keller
Title: Director, Private Placements
By: /s/ Michael J. Steppe
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Name: Michael J. Steppe
Title: Senior Vice President
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SECURITY LIFE OF DENVER INSURANCE
COMPANY
By: ING INVESTMENT MANAGEMENT,
LLC, its Agent
By: /s/ Fred C. Smith
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Name: Fred C. Smith
Title: SVP and Managing Director
MIDWESTERN UNITED LIFE INSURANCE
COMPANY
By: ING INVESTMENT MANAGEMENT,
LLC, its Agent
By: /s/ Fred C. Smith
--------------------------------
Name: Fred C. Smith
Title: SVP and Managing Director
LION II CUSTOM INVESTMENTS LLC
By: ING INVESTMENT MANAGEMENT,
LLC, its Agent
By: /s/ Fred C. Smith
--------------------------------
Name: Fred C. Smith
Title: SVP and Managing Director
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NORTHERN LIFE INSURANCE COMPANY
By: /s/ Mark S. Jordahl
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Name: Mark J. Jordahl
Title: Senior Vice President
RELIASTAR LIFE INSURANCE COMPANY
F/K/A NORTHWESTERN NATIONAL
LIFE INSURANCE COMPANY
By: /s/ Mark S. Jordahl
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Name: Mark J. Jordahl
Title: Senior Vice President
TEACHERS INSURANCE ANNUITY
ASSOCIATION OF AMERICA
By: /s/ Loren S. Archibald
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Name: Loren S. Archibald
Title: Managing Director, Private
Placements
PACIFIC MUTUAL LIFE INSURANCE
COMPANY
By: /s/ Ron Cornelius
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Name: Ronn Cornelius
Title: Assistant Vice President
By: /s/ Peter S. Fiek
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Name: Peter S. Fiek
Title: Assistant Secretary
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JEFFERSON PILOT LIFE INSURANCE
COMPANY
By: /s/ Robert E. Whalen II
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Name: Robert E. Whalen II
Title: Vice President
THE LINCOLN NATIONAL LIFE
INSURANCE COMPANY
By: LINCOLN INVESTMENT
MANAGEMENT, INC., its Attorney In
Fact
By: /s/ J. Steven Staggs
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Name: J. Steven Staggs
Title: Vice President
LINCOLN LIFE & ANNUITY COMPANY OF
NEW YORK
By: LINCOLN INVESTMENT
MANAGEMENT, INC., Its Attorney In
Fact
By: /s/ J. Steven Staggs
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Name: J. Steven Staggs
Title: Vice President
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